     Case: 11-30137     Document: 00511629649         Page: 1     Date Filed: 10/12/2011




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

                                                                            FILED
                                                                         October 12, 2011
                                     No. 11-30137
                                   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 GARZA, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM:*
        Anthony Antoine Birtha, now federal prisoner # 13911-035, and his co-
conspirators were involved in a series of armed home invasions and robberies
targeting known drug dealers, resulting in his conviction of various federal
offenses. United States v. Birtha, 384 F. App’x 351, 352 (5th Cir. 2010) (direct
appeal), cert. denied, 131 S. Ct. 582 (2010). In affirming Birtha’s conviction, we
held that evidence that Birtha had committed a sexual assault during one of the
robberies was intrinsic to the conspiracy and, therefore, was not governed by

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-30137

Federal Rule of Evidence 404(b). Id. at 352-53. After the direct appeal was
resolved, Birtha filed a motion for a new trial and a motion to strike unnecessary
language from the indictment. Birtha contended in the motions that the State
of Louisiana has voluntarily dismissed state charges related to the sexual
assault. The district court construed both motions as requesting a new trial and
denied them as untimely. The district court also determined that even if the
motion were timely, the evidence of the dismissal of the state charges was not
sufficient to warrant a new trial. Birtha gave timely notice of his appeal.
      We have reviewed the district court’s order for an abuse of discretion. See
United States v. Piazza, 647 F.3d 559, 564-65 (5th Cir. 2011). A new trial may
be granted by the trial court in the interest of justice. FED. R. CRIM. P. 33(a). If
the motion is based upon newly discovered evidence, it must be filed within three
years of the verdict or finding of guilt. RULE 33(b)(1). Otherwise, it must be filed
within 14 days after the verdict or finding of guilt. RULE 33(b)(2). To receive a
new trial based on newly discovered evidence, the defendant must show: (1) that
the evidence is newly discovered and was unknown to him at the time of trial;
(2) that the failure to discover the evidence previously was not due to a lack of
due diligence; (3) that the evidence is not merely cumulative or impeaching;
(4) that the evidence is material; and (5) that the evidence, if introduced at a new
trial would probably produce an acquittal. Piazza, 647 F.3d at 565. The failure
to satisfy any of these five factors will result in denial of the motion. Id. It is not
necessary for us to decide whether Birtha’s motion for new trial is otherwise
proper because he has failed to satisfy the fourth and fifth factors for receiving
a new trial based on newly discovered evidence.
      Birtha contends that his motion was timely because it was based on newly
discovered evidence, and because it was filed within three years of the verdict.
He insists that the evidence of the sexual assault was the only evidence linking
him with the conspiracy, and that the nature of the evidence made it especially
prejudicial. Birtha argues that the materiality of the evidence is shown by this

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                                  No. 11-30137

court’s reliance on the evidence of the sexual assault in affirming his convictions.
He contends that the dismissal of the state charges shows that he is innocent of
the sexual assault. Birtha contends also that the district court abused its
discretion in refusing to reopen his motion to strike unnecessary language from
the indictment. These arguments are without merit.
      The Government was only required to prove the fact of the sexual assault
by “produc[ing] sufficient evidence to permit a reasonable jury to find the
preliminary facts by a preponderance of the evidence.” United States v. Isaacs,
257 F. App’x 704, 706 (5th Cir. 2006) (citation omitted); see United States v.
Beechum, 582 F.2d 898, 913 (5th Cir. 1978) (en banc). The evidence it presented
was more than adequate to carry that burden.           Because the Government
produced sufficient evidence to allow a jury to find the sexual assault occurred
by a preponderance of the evidence, the sexual assault evidence would have been
admitted, whether or not there was evidence that the related state charges had
been dismissed. See Beechum, 582 F.2d at 913. For that reason, evidence that
the state charges were dismissed was not material and would not have produced
an acquittal. See Piazza, 647 F.3d at 565. Birtha has not shown that the district
court abused its discretion in construing his motion to strike as a motion for a
new trial or in denying the request for a new trial based on newly discovered
evidence. See id. We have not considered whether the district court erred in its
alternative holding that the motion was untimely. The district court’s order is
AFFIRMED. Birtha has moved for summary disposition of the appeal. The
motion is DENIED AS MOOT. He has also requested appointment of counsel
and to supplement the record. These motions are also DENIED.




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