             Case: 13-15812    Date Filed: 12/14/2015   Page: 1 of 5


                                                        [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                                No. 13-15812
                            Non-Argument Calendar
                          ________________________

                    D.C. Docket No. 1:13-cr-00088-KD-N-1



UNITED STATES OF AMERICA,

                                                                 Plaintiff-Appellee,
                                     versus

JOSEPH PAUL DEMARCO,

                                                            Defendant-Appellant.

                          ________________________

                  Appeal from the United States District Court
                     for the Southern District of Alabama
                         ________________________

                              (December 14, 2015)

Before HULL, MARCUS and WILLIAM PRYOR, Circuit Judges.

PER CURIAM:

        Joseph DeMarco appeals his conviction for failing to register or update

his registration as a sex offender between March 2012 and March 2013, as required
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under the Sex Offender Registration and Notification Act, 42 U.S.C. § 16901, et

seq. 18 U.S.C. § 2250(a). DeMarco challenges the sufficiency of the evidence and

the denial of his request for a jury instruction on the defense of uncontrollable

circumstances. DeMarco also argues, for the first time, that he was entitled to a

unanimity instruction because the government made his indictment duplicitious by

presenting evidence that he failed to update his registration in Alabama and that he

failed to register in Louisiana. We affirm.

         Ample evidence supports DeMarco’s conviction. DeMarco was convicted

in an Alabama court of first degree sexual abuse involving sexual contact of a child

and was subject to criminal penalties if he “travel[ed] in interstate . . . commerce”

and “knowingly fail[ed] to register or update his registration as required by the . . .

Act.” See id. Testimony from detectives in Alabama and in Louisiana and from

DeMarco’s coworkers in Louisiana proved that DeMarco failed to keep his

registration current by notifying “each jurisdiction where [he] reside[d] [and]

where [he was] an employee,” 42 U.S.C. § 16913(a), within “3 business days after

each change of name, residence, [or] employment,” id. § 16913(c). See United

States v. Kopp, 778 F.3d 986, 988 (11th Cir. 2015). DeMarco received notice of

the three-day requirement in 2011. On April 26, 2012, he filed a registration form,

which declared that he lived at 6256 Cushla Oaks Drive East in Mobile and

worked in Mississippi. But he failed to notify authorities in Alabama or Louisiana


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that, between February 2012 and August 2012, he worked on several tow boats in

Louisiana and allowed a new tenant to occupy the Cushla Oaks residence. A

detective in Alabama testified that in April 2012 he instructed DeMarco to register

with the sheriff’s office in each county or parish where he worked. The jury

reasonably found that DeMarco had traveled in interstate commerce and

knowingly failed to update his registration to reflect changes in his employment

and residence.

         DeMarco argues, for the first time, that he was entitled to a unanimity

instruction requiring the jury to find him guilty of one distinct act because the

government made his indictment duplicitious by presenting competing legal

theories that he failed to update his registration in Alabama and that he failed to

register in Louisiana. We review this issue for plain error. Under that standard,

DeMarco must prove there was an error that was plain, that affected his substantial

rights, and that seriously affected the fairness, integrity, or public reputation of

judicial proceedings. See United States v. Sperrazza, 804 F.3d 1113, 1126 (11th

Cir. 2015).

         The district court did not plainly err in failing sua sponte to give a

unanimity instruction. The government argued consistently in its opening and

closing remarks and in rebuttal to DeMarco’s closing remarks that DeMarco

“knowingly failed to update his registration” to reflect changes in his employment


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and residence. Consistent with that theory, the evidence proved that DeMarco’s

continuing offense “beg[a]n” in Alabama, where DeMarco had registered with

authorities and started “his interstate journey,” and continued as he traveled

through interstate commerce to and worked in Louisiana for four tow boat

companies without updating his registration to reflect the change in his location.

See Kopp, 778 F.3d at 988. DeMarco fails to identify any controlling authority that

required the district court to give a unanimity instruction in this circumstance.

         DeMarco argues that he was entitled to have the jury instructed that

uncontrollable circumstances impeded him from complying with the registration

requirements, but the district court did not abuse its discretion by refusing to give

the requested instruction. “A defendant has the right to have the jury instructed on

a theory of defense only if the proposed instruction presents a valid defense and if

there has been some evidence adduced at trial relevant to that defense.” United

States v. Duperval, 777 F.3d 1324, 1334 (11th Cir. 2015) (internal quotation

marks, citation, and brackets omitted). “In a prosecution for a violation [of a failure

to register or update a registration], it is an affirmative defense that uncontrollable

circumstances prevented the individual from complying.” 18 U.S.C. § 2250(b)(1).

DeMarco argues that he “would immediately board a boat” and when he

disembarked “his employment had concluded and he had nothing to report,” but

DeMarco’s coworkers testified that DeMarco was onshore periodically and could


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have updated his registration. Adam Morris testified that DeMarco worked

onboard a tow boat from March 12 to March 27, but he first visited Morris’s office

in Louisiana for orientation. Gerald Humphreys of Abe’s Boat Rental testified that

DeMarco worked on two ships during July and August of 2012 and that he was

scheduled to work 14 days offshore and 7 days onshore in Louisiana. And Greg

Lasseigne of K&K Offshore testified that DeMarco was employed for 25 days and

that his boat would have been moored to the dock at least once for him to

disembark. The district court reasonably determined that DeMarco’s employment

did not create an uncontrollable circumstance that prevented him from updating his

registration.

         We AFFIRM DeMarco’s conviction.




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