     Case: 09-30871     Document: 00511154961          Page: 1    Date Filed: 06/25/2010




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                            June 25, 2010
                                     No. 09-30871
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

ANTHONY ANTOINE BIRTHA, also known as Terelle Williams,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                       for the Western District of Louisiana
                            USDC No. 6:07-CR-20052-2


Before KING, BARKSDALE, and GARZA, Circuit Judges.
PER CURIAM:*
        Anthony Antoine Birtha was convicted by a jury of conspiracy to possess
with intent to distribute controlled substances, attempted interference with
commerce by robbery, possessing and carrying a firearm in furtherance of and
during and in relation to a crime of violence, possession of a firearm by a
convicted felon, interference with commerce by robbery, possession of cocaine
with intent to distribute, possession of marijuana with intent to distribute, and
possession of stolen firearms. The conspiracy involved a series of armed home

       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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                                  No. 09-30871

invasions and robberies committed by Birtha and his co-conspirators in 2003 and
2004. The intended targets of the robberies were known drug dealers.
      Birtha contends: evidence of a sexual assault that occurred during one of
the home invasions was extrinsic to the conspiracy and should have been
excluded or circumscribed under Federal Rule of Evidence 404(b); the evidence
was unnecessarily graphic and unfairly prejudicial, in violation of Rule 403; and,
as a result, it inflamed the jury and increased the length of his sentence. He
complains that the district court did not consider limiting the kind and quality
of the evidence to that which would have been necessary to show that Birtha’s
DNA had been found at the scene of the crime; nor did it consider instructing the
jury that its consideration of the evidence was limited under Rule 404(b).
      The district court’s decision to admit evidence is reviewed for abuse of
discretion. United States v. Yi, 460 F.3d 623, 631 (5th Cir. 2006). For the
reasons that follow, the district court did not abuse its discretion by admitting
evidence of the sexual assault.
      Rule 404(b) applies only to extrinsic evidence and does not restrict or
prohibit intrinsic evidence. Id. at 632. “Evidence of acts other than conduct
related to the offense is intrinsic when the evidence of the other act and the
evidence of the crime charged are inextricably intertwined or both acts are part
of a single criminal episode or the other acts were necessary preliminaries to the
crime charged.” Id. (quoting United States v. Freeman, 434 F.3d 369, 374 (5th
Cir. 2005)).
      The evidence showed that Birtha entered a residence with the intent to
commit an armed robbery under the mistaken belief that it was the residence of
a drug dealer. Birtha committed a sexual assault at that residence, with the


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                                 No. 09-30871

mistaken belief that the victim was the cousin of the drug dealer’s wife. DNA
evidence linked Birtha to the sexual assault.
      The evidence of the sexual assault was intrinsic to the conspiracy between
Birtha and Stirling Givens to commit home-invasion robberies of drug dealers.
See id. The sexual assault was inextricably intertwined with the conspiracy and
was part of a single criminal episode related to the conspiracy. See id. The
evidence completed the story of the crime, provided immediate context of events
in time and place, and enabled the jury to evaluate the circumstances under
which Birtha acted. See id. That other co-conspirators had not yet joined the
conspiracy is immaterial, because Birtha and Givens had already joined in it.
See United States v. Mendoza, 587 F.3d 682, 687 (5th Cir. 2009).
      Moreover, the probative value of the sexual assault evidence was not
substantially outweighed by the danger of unfair prejudice. See F ED. R. E VID.
403. Birtha’s defense was that there was little physical evidence linking him to
the home invasions, that the robbery victims were unable to identify him, and
that the testimony of cooperating co-conspirators was not credible.           The
testimony of the rape victim and of Birtha’s co-conspirators regarding the fact
that a rape occurred during one of the home invasions, as well as the
corroborating DNA evidence, helped to establish Birtha’s identity as a
participant in the conspiracy. Some factual detail regarding the rape itself was
necessary to explain the DNA evidence. The evidence also showed Birtha’s role
and the manner and means of committing the robberies.
      The Government offered evidence showing only that the sexual assault
had occurred, and it did not present unnecessary factual details about it.
Moreover, the prejudicial effect of the evidence was mitigated, because the


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                                  No. 09-30871

district court gave a limiting instruction regarding other-acts evidence. See
United States v. Williams, 343 F.3d 423, 437 (5th Cir. 2003). Its admission was
not unfairly prejudicial. See United States v. Bailey, 111 F.3d 1229, 1234-35 (5th
Cir. 1997) (evidence of uncharged sexual assault during home invasion not
unfairly prejudicial); see also United States v. Baptiste, 264 F.3d 578, 590 (5th
Cir. 2001) (evidence of murders and attempted murders committed in course of
drug trafficking conspiracy not unfairly prejudicial because it was necessary for
jury to understand brutal nature of conspiracy), modified on other grounds on
reh’g, 309 F.3d 274 (5th Cir. 2002); United States v. Morgan, 117 F.3d 849, 861
(5th Cir. 1997) (evidence that defendant held shotgun to head of undercover
officer during drug buy not unfairly prejudicial).
      Birtha also contends that admission of the sexual-assault evidence
increased the severity of his sentence (102 years’ imprisonment).             This
contention is without merit. In determining the base offense level, offense
characteristics, and adjustments, the district court is required to consider as
relevant conduct “all acts and omissions” of the defendant and all harm resulting
from those acts and omissions. U.S.S.G. § 1B1.3. Even if the sexual-assault
evidence had been excluded from evidence at trial, the district court would have
considered those facts in determining the sentence. See United States v. West,
58 F.3d 133, 138 (5th Cir. 1995) (“[T]he district court ‘may consider relevant
information without regard to its admissibility under the rules of evidence
applicable at trial, provided that the information has sufficient indicia of
reliability to support its probable accuracy’”. (quoting U.S.S.G. § 6A1.3)). Birtha
does not challenge the guidelines calculation, nor does he contend that the




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                               No. 09-30871

information regarding the sexual assault did not bear sufficient indicia of
reliability.
      AFFIRMED.




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