                                                             [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________                   FILED
                                                           U.S. COURT OF APPEALS
                                No. 09-12087                 ELEVENTH CIRCUIT
                                                              NOVEMBER 9, 2009
                            Non-Argument Calendar
                                                              THOMAS K. KAHN
                          ________________________
                                                                   CLERK

                      D. C. Docket No. 07-00121-CR-F-S

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                     versus

MARK G. PERRY,

                                                             Defendant-Appellant.


                          ________________________

                  Appeal from the United States District Court
                      for the Middle District of Alabama
                        _________________________

                               (November 9, 2009)

Before BLACK, WILSON and PRYOR, Circuit Judges.

PER CURIAM:

     Mark G. Perry appeals his convictions for assault with the intent to rob a
postal clerk, in violation of 18 U.S.C. § 2114(a), and assault on a government

employee engaged in the performance of official duties, in violation of 18 U.S.C.

§ 111. Perry was convicted following a jury trial. On appeal, Perry argues that the

district court erred in admitting evidence of his prior conviction for sexual assault,

and submits also that there was insufficient evidence for the jury to find him guilty.

For the following reasons, we affirm the judgment of the district court.

                                           I.

      Perry was indicted for robbing and assaulting a postal clerk in Newton,

Alabama the day after Christmas 2006. At trial the government sought to introduce

evidence of Perry’s state conviction for a sexual assault that occurred a little later

that same day in Dothan, Alabama, approximately fourteen miles away. The

government argued that the facts of Perry’s conviction for sodomy in Dothan

demonstrated identity, modus operandi, intent, and absence of mistake under

Federal Rule of Evidence 404(b) that were relevant to the issue of Perry’s guilt in

the Newton attack. The evidence was particularly important for the government’s

case because the investigation had failed to locate fingerprints, DNA, or other

physical evidence placing Perry in the Newton post office. The similar-act

evidence would support the victim’s identification of her assailant.

      The district court admitted the Rule 404(b) evidence as relevant to identity



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after finding “extraordinary” similarities between the two incidents: a lone female

employee attacked in a place of business, after a similarly dressed assailant entered

on a pretext and remained within; the assailant remained calm as he bound his

victim with duct tape and sexually assaulted her. The district court instructed the

jury that it was to consider evidence of the second assault for the limited purpose

of considering the identity of the post office assailant. On appeal Perry raises two

issues: first, that admission of the second assault was unfairly prejudicial under

Federal Rule of Evidence 403, and second, that insufficient evidence supported

Perry’s conviction. We address each in turn.

                                            II.

      Perry argues that the unfair prejudice of the evidence of his prior sexual

assault conviction outweighed its probative value. He further asserts that during the

trial, the district court abused its discretion by allowing multiple witnesses to

testify to details of the sexual assault crime, which essentially resulted in a retrial

of the prior crime that inflamed the jury into finding him guilty.

      We review a district court’s rejection of a Rule 403 challenge for abuse of

discretion. United States v. Jernigan, 341 F.3d 1273, 1284 (11th Cir. 2003). This

standard requires that we defer to the district court’s holdings unless they are

“manifestly erroneous.” Rink v. Cheminova, Inc., 400 F.3d 1286, 1291 (11th Cir.



                                            3
2005).

         Rule 403 provides that relevant evidence “may be excluded if its probative

value is substantially outweighed by the danger of unfair prejudice, confusion of

the issues, or misleading the jury, or by considerations of undue delay, waste of

time, or needless presentation of cumulative evidence.” Fed. R. Evid. 403.

Exclusion under Rule 403 is “an extraordinary remedy which the district court

should invoke sparingly.” United States v. Dodds, 347 F.3d 893, 897 (11th Cir.

2003) (internal quotation omitted). Furthermore, when reviewing a ruling under

Rule 403, the balance is in favor of admissibility, and we should “look at the

evidence in a light most favorable to its admission, maximizing its probative value

and minimizing its undue prejudicial impact.” Id. Also, instructions to the jury may

mitigate or even cure the unfair prejudice, if any, caused by the admission of some

evidence. See United States v. Spoerke, 568 F.3d 1236, 1251 (11th Cir. 2009).

         To be admissible, Rule 404(b) evidence must (1) be relevant to an issue

other than the defendant’s character; (2) sufficiently prove that the defendant

committed the extrinsic act; and (3) not create undue prejudice that substantially

outweighs its probative value, and or violate the other requirements of Rule 403.

United States v. Delgado, 56 F.3d 1357, 1365 (11th Cir. 1995). Perry concedes the

first two prongs of Delgado and raises only the issue of unfair prejudice.



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      Viewing the evidence in the light most favorable to admission, Dodds, 347

F.3d at 897, the district court did not commit reversible error by admitting the

evidence of Perry’s sodomy conviction. The test is not whether evidence is

prejudicial, but rather whether any unfairness of the prejudice substantially

outweighs the probative value of the proffered evidence. As the district court

noted, the facts of the Dothan attack were highly probative. The attacks took place

within minutes of each other, a few miles apart. The assailants dressed similarly,

isolated their victims in the same calculated way, bound them with duct tape, and

calmly assaulted them. At the same time, the district court did not admit all

evidence of the Dothan attack wholesale. The exclusion of numerous proffered

photographic exhibits of the Dothan attack, and the limit on witness testimony,

showed that the district court balanced the probative and prejudicial aspects of the

evidence piece by piece. This same balancing is apparent in the district court’s

exclusion of evidence of Perry’s 1991 conviction for robbing a Daleville Domino’s

Pizza, which Perry entered claiming he was a Domino’s employee who needed to

use the phone. These rulings show the district court carefully followed the

requirements of Rules 403 and 404(b). Under the abuse of discretion standard,

these rulings are defensible and fail to reach Rink’s requirement for “manifestly

erroneous” decisions to admit evidence.



                                          5
                                        III.

      Perry next argues that there was insufficient evidence for the jury to convict

him. Perry asserts that the victim’s identification of him was unreliable due to

extenuating circumstances at the time the crime was committed and flaws in the

investigative process. He also asserts that the record demonstrates that it was

physically impossible for him to have committed the crime, and emphasizes that

there was no physical evidence connecting him to the crime.

      The inquiry into the sufficiency of the government’s evidence produced at

trial is a question of law subject to de novo review. Spoerke, 568 F.3d at 1244. In

reviewing the sufficiency of the evidence, we ask whether, after viewing the

evidence in the light most favorable to the prosecution, with all reasonable

inferences and credibility choices made in the government’s favor, a reasonable

trier of fact could have found the essential elements of the crime beyond a

reasonable doubt. Id. We will not disturb a guilty verdict unless “no trier of fact

could have found guilt beyond a reasonable doubt.” United States v. Yost, 479 F.3d

815, 818–19 (11th Cir. 2007) (internal quotation omitted).

      Witness credibility is the “sole province” of the jury. United States v.

Hamaker, 455 F.3d 1316, 1334 (11th Cir. 2006). Moreover, only the jury has the

responsibility to weigh and resolve conflicts in the evidence. United States v. Tagg,



                                           6
572 F.3d 1320, 1325 (11th Cir. 2009) (quoting United States v. Pearson, 746 F.2d

787, 794 (11th Cir.1984)). “[T]he jury’s verdict will not be disturbed on appeal

unless the testimony is ‘incredible as a matter of law.’ Testimony is only

‘incredible’ if it relates to ‘facts that the witness could not have possibly observed

or events that could not have occurred under the laws of nature.’” United States v.

Flores, 572 F.3d 1254, 1263 (11th Cir. 2009) (internal citations omitted), petition

for cert. filed, (U.S. Sept. 25 and Sept. 28, 2009) (09-6730 and 09-6821).

      To obtain a conviction under 18 U.S.C. § 2114(a), as charged here, the

government must establish, beyond a reasonable doubt, that (1) the defendant

assaulted a postal worker who had lawful charge, custody, or control of money or

other property of the United States; and (2) the defendant did so with intent to rob,

steal, or purloin that property. 18 U.S.C. § 2114(a). To obtain a conviction under

18 U.S.C. § 111, the government must establish, beyond a reasonable doubt, that

(1) the defendant forcibly assaulted the person described in the indictment; (2) the

person assaulted was a federal officer, then engaged in the performance of an

official duty or on account of her official duties, as charged; and (3) that the

defendant acted knowingly and willfully. See United States v. Martinez, 486 F.3d

1239, 1243, 1246 (11th Cir. 2007) (holding that the district court, by using the

elements set forth above, instructed the jury properly).



                                           7
      Looking at the evidence in the light most favorable to the government,

Spoerke, 568 F.3d at 1244, we conclude there is sufficient evidence to sustain

Perry’s conviction. The victim’s account of the assault and her identification of

Perry was the crux of the government’s case. Perry was able to cross-examine the

victim regarding her perceptions at the post office, her work with the police sketch

artist, and her identification of Perry from the photo lineup. Moreover, Perry

presented an expert witness who testified as to the problems of in-person

identifications made under stress, and identifications made between people of

different races. These evaluations of witness credibility, perception, and memory

are matters for the jury. Perry also was able to challenge the government’s account

regarding the length of time it took to travel from Newton to Dothan, and the color

of the vehicles driven by the assailants. The lack of physical evidence by itself

does not entitle Perry to acquittal. A reasonable jury could have weighed the

competing accounts and found Perry guilty beyond a reasonable doubt based on

the evidence presented.

                                          IV.

      The district court did not abuse its discretion by admitting evidence of

Perry's prior conviction for sexual assault. Additionally, the jury had sufficient

evidence upon which to find Perry guilty of both counts beyond a reasonable



                                           8
doubt. The judgment of the district court is AFFIRMED.




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