United States v. William Tosca

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 20-10222
Non-Argument Calendar
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D.C. Docket No. 6:19-cr-00123-RBD-GJK-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WILLIAM TOSCA,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(February 19, 2021)
Before LAGOA, BRASHER, and ED CARNES, Circuit Judges.
PER CURIAM:
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The federal Sex Offender Registration and Notification Act (SORNA) 1
imposes requirements on sex offenders, which are enforceable by criminal
sanctions. One of those requirements is that “[a] sex offender shall register, and
keep the registration current, in each jurisdiction where the offender resides.” 34
U.S.C. § 20913(a). William Tosca was convicted for knowingly failing to comply
with that requirement after travelling in interstate commerce, in violation of 18
U.S.C. § 2250. This is his appeal.
In 2013 Tosca was convicted in Massachusetts state court of indecent assault
and battery on a person fourteen years of age or older. Under Massachusetts law,
that conviction made him a sex offender and required him to register as one with
that state’s Sex Offender Registry Board. He did so. But when he moved to
Florida in 2016, Tosca did not register as a sex offender there. In 2019 he was
arrested and later indicted by a federal grand jury for “knowingly fail[ing] to
register and update a registration as required by [SORNA].” A jury found him
guilty of that charge, and he was sentenced to time served and five years of
supervised release.
Tosca contends that the district court erred in four ways during his trial:
(1) by not asking the prospective jurors the questions he submitted; (2) by not
1
SORNA was enacted as part of the Adam Walsh Child Protection and Safety Act of
2006, Pub. L. No. 109-248, 120 Stat. 587, 590–611 (2006).
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striking the entire venire; (3) by excluding evidence about the facts of his sex
offense that Tosca wanted the jury to hear; and (4) by not granting his motion for
judgment as a matter of law based on insufficiency of the evidence.
I.
The first two issues are related, so we will discuss them together. Before
trial, Tosca submitted proposed voir dire questions for the venire. He proposed
asking the venire members whether they: always read the fine print before signing
an important document; had never been confused by legal papers; had heard of
implicit racial basis; believed that it was impossible to have a racial bias without
realizing it or intending to have it; interacted with African Americans on a regular
basis; believed that sex offenders could not be rehabilitated; and believed that all
sex offenses are the same. The government objected to those questions, and the
district court declined to ask them. The court said that they were “doctrinal
questions,” which were an attempt “to try to precondition the jurors to the theory of
the case.” The court said that the questions it asked would instead focus on
determining if the members of the venire could be fair and impartial.
During voir dire, a few prospective jurors stated that they had a close family
member who either had been required to register as a sex offender or had been a
victim of sexual abuse. All but one of those prospective jurors referred to crimes
involving a minor. None of those people were selected to serve on the jury.
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Also during voir dire, a prospective juror said that he owned a store that had
often had thefts and that “the majority of the cases that [he] deal[s] with are
African-American theft.” The court questioned him closely about his ability to be
unbiased and got him to admit that he would have to work to overcome his bias
against African Americans:
QUESTION: Well, Mr. Tosca is African-American. Is
there anything about the fact that he’s
African-American that you think might cause
you to judge him more harshly than you
would somebody who’s, for instance,
Caucasian, Asian, or some other race?
ANSWER: I’d like to think not. I think in my situation,
the prevalence of my interactions
around — let’s just say my run-in with staff.
I’d like to think not, Judge. I’m just — yeah.
QUESTION: Well, so I’m not doing my job if I let that
go —
ANSWER: Yeah.
QUESTION: “I’d like to think so.” “I’d like to think so”
doesn’t cut it.
ANSWER: Yeah.
QUESTION: If you can’t tell me unequivocally that Mr.
Tosca’s race is not going to be a factor in your
deliberations, then I need you to tell me that.
ANSWER: Okay. No, it will not be a factor.
QUESTION: Okay. Are you sure about that? Because you
don’t seem sure.
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ANSWER: Well, yeah. I’ve had to reflect on this in
terms of — I’m a very disciplined, focused
individual who can make it not a factor, is
how I feel.
QUESTION: Well, it sounds to me — you correct me if I’m
wrong, because I don’t want to be wrong.
But I want to tell you what it sounds to me
like. It sounds to mean [sic] like you’re
concerned that you may have a bias against
Mr. Tosca because he’s African-American,
but that you would work to overcome that
bias.
ANSWER: Correct.
QUESTION: So if you start off with a bias against Mr.
Tosca, then you would have to work to
overcome. Is that what you’re telling me?
ANSWER: Fair enough. Yep.
After that exchange, the court asked the rest of the venire members if
anybody shared the view that because Tosca “is African-American, that
somewhere there would be some extra work that would need to be done in order to
give him a fair trial.” They answered no.
The government and Tosca both moved to strike for cause the store owner
prospective juror, and he was not allowed to serve on the jury. Tosca’s counsel
went further. At a sidebar, he argued that the court’s interaction with the juror who
had admitted his bias “conveyed to the remainder of the venire that any sort of
admission on their part that they might be biased would result in an admonition
from the Court.” Because of that, counsel asserted, “the venire has been tainted by
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the exchange,” and he moved that the entire venire be struck. The court denied the
motion.
Tosca contends that the district court erred in refusing to ask his proposed
questions of the venire, and that it erred in denying his motion to strike the entire
venire after it heard the court’s exchange with the problematic venire member.
“The method of conducting the voir dire is left to the sound discretion of the
trial court and will be upheld unless an abuse of discretion is found.” United States
v. Hill, 643 F.3d 807, 836 (11th Cir. 2011) (quotation marks omitted). The voir
dire “need only provide reasonable assurance that prejudice will be discovered if
present.” Id. (quotation marks omitted). The district court has “ample discretion
in determining how best to conduct voir dire” because “the obligation to impanel
an impartial jury lies in the first instance with the trial judge, and because he must
rely largely on his immediate perceptions.” United States v. Montgomery, 772
F.2d 733, 735 (11th Cir. 1985) (quoting Rosales-Lopez v. United States, 451 U.S.
182, 189 (1981) (plurality opinion)). That “discretion includes the decision
whether or not to submit suggested questions to the jury.” United States v. Tegzes,
715 F.2d 505, 507 (11th Cir. 1983).
The district court did not abuse its discretion in refusing to submit Tosca’s
proposed questions to the venire. The questions the district court did ask the
prospective jurors about racial bias and their experience with sex offenses covered
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the substance of some of Tosca’s proposed questions. In response to those
questions that were asked, no venire member indicated any potential prejudice that
required further inquiry, except for one person, the store owner. And after the
court’s follow-up questioning, he was removed for cause. The questions Tosca
contends needed to be asked did not focus on specific bias, and the district court
correctly concluded that they were an attempt to precondition the jury to Tosca’s
theory of the case. The court was not required to do that.
As for Tosca’s claim that the court should have struck the entire venire, we
review the decision not to do so only for a manifest abuse of discretion. United
States v. Bergman, 852 F.3d 1046, 1067 (11th Cir. 2017). The premise of Tosca’s
argument is that the prospective juror who expressed hesitation about being
impartial toward African Americans was admonished by the court, which may
have chilled other prospective jurors from expressing potential bias, and that
potential required either further questioning of the entire venire or striking it.
The factual premise of the argument is false. The district court did not
admonish the problematic juror. It asked him reasonable follow up questions to
determine what, exactly, he meant by his statements and whether he could be
impartial. There is no reason to think that anyone in the venire was chilled in any
way by the prospective juror’s comments or by the district court’s questions and
comments to him, or that the entirely reasonable and civil exchange between the
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two somehow tainted the venire. See Bergman, 852 F.3d at 1067 (“The transcript
also does not indicate that the . . . questioning prevented any other jurors from
speaking about their biases.”). Tosca’s arguments to the contrary are highly
speculative. See Tegzes, 715 F.2d at 508 (rejecting a “highly speculative”
argument that prospective jurors had been biased and noting that “mere awareness
that other jurors have prejudices does not disqualify those jurors who heard about
those prejudices”).
And after its interaction with that problematic juror, the court asked the other
members of the venire if any of them shared the view that it would take “extra
work” to give Tosca a fair trial. They all said no, and there is no reason to
disbelieve them. The district court did not abuse its discretion by not inquiring
further or by not striking the entire venire.
II.
Tosca contends that the district court erred in ruling that the facts of his sex
offense were irrelevant and thus inadmissible. He argues that that ruling violated
his constitutional right to present a defense.
Tosca moved in limine for the court to let him put into evidence the details
of his prior conviction. He wanted to let the jury know that the victim of his prior
crime was not a minor, that she was a 20-year-old woman of his own race whom
Tosca had known for two months, and that she had reported Tosca’s sexual crime
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the day after it occurred, claiming that she had not consented. Tosca argued that
those facts were relevant to his knowledge of whether he had to register because, in
his opinion, his triggering crime was not as bad as child molestation, and because
of that the jury might believe Tosca did not know he would have to continue
registering as a sex offender for a long time.
The court denied Tosca’s motion, reasoning that the only fact about that
earlier crime that mattered for present purposes is that he had been convicted of
that earlier crime. It ruled that the details of the crime were irrelevant unless the
government opened the door (which it never did).
After the court finished questioning the venire, Tosca again moved the court
to rule that the factual details of his sex offense were admissible. This time he
argued that in answering the court’s questions, some of the prospective jurors had
referred to sex crimes involving minors, and from those references the jury might
speculate that Tosca himself was a child molester. The court denied that motion as
it had the earlier one.
We review only for abuse of discretion a district court’s evidentiary rulings.
United States v. Todd, 108 F.3d 1329, 1331 (11th Cir. 1997). But a district court’s
discretion does not “extend to the exclusion of crucial relevant evidence necessary
to establish a valid defense.” Id. at 1332 (quotation marks omitted). When a
defendant argues that the exclusion of evidence violated his constitutional rights,
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we consider whether a constitutional right was violated and, if so, whether the error
was harmless beyond a reasonable doubt. United States v. Hurn, 368 F.3d 1359,
1362–63 (11th Cir. 2004); see also United States v. Pon, 963 F.3d 1207, 1227–28,
1238 (11th Cir. 2020).
Even if the court did err by excluding the facts of Tosca’s sex offense, the
error was harmless. The thrust of Tosca’s argument is that, if the jury had known
that he is not a convicted child molester, they would have been less likely to find
that he knowingly failed to register as a sex offender. The insurmountable problem
for Tosca’s argument is that the jury did know he is not a convicted child molester.
A witness from the Massachusetts Sex Offender Registry Board testified on cross-
examination that Tosca “did not commit a crime against a child.” There was no
dispute about that. The same witness also testified that Tosca “did not commit a
violent crime.” So, the jury knew, as Tosca wanted it to know, that he was not
convicted of sexually abusing a child and that the crime did not involve violence.
As for other details of Tosca’s sex offense, such as the race of his victim and how
long he had known her, we seriously doubt that excluding that information was
error, but even if it was, doing so was harmless beyond a reasonable doubt in light
of all the other evidence of Tosca’s guilt, which we will summarize in the next
section. See Pon, 963 F.3d at 1238.
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III.
Tosca also contends that the evidence at trial was insufficient to support his
conviction. We review de novo a preserved challenge to the sufficiency of the
evidence, viewing the evidence in the light most favorable to the government and
drawing all reasonable inferences and credibility choices in favor of the verdict.
United States v. Wilson, 788 F.3d 1298, 1308 (11th Cir. 2015). We will affirm the
verdict “if any reasonable construction of the evidence would have allowed the
jury to find the defendant guilty beyond a reasonable doubt.” Id. (quotation marks
omitted). The evidence need not “exclude every reasonable hypothesis of
innocence or be wholly inconsistent with every conclusion except that of guilt” but
need only show, “after viewing the evidence in the light most favorable to the
prosecution, [that] any rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt.” United States v. Hernandez, 433 F.3d
1328, 1335 (11th Cir. 2005) (quotation marks omitted).
To sustain a SORNA conviction, the government must have proven that the
defendant (1) was required to register under SORNA; (2) travelled in interstate
commerce; and (3) knowingly failed to register and keep his registration current as
required by SORNA. 18 U.S.C. § 2250(a); United States v. Beasley, 636 F.3d
1327, 1329 (11th Cir. 2011). The government and Tosca stipulated that Tosca was
required by SORNA to register in Florida and that he had travelled in interstate
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commerce to get to that state, meaning the only element at issue is whether he
knowingly failed to register.
When it comes to the “knowingly” element, the government need not prove
that a defendant knew that he was violating SORNA; instead, it must prove “only
that he ‘knowingly’ violated a legal registration requirement upon relocating.”
United States v. Griffey, 589 F.3d 1363, 1367 (11th Cir. 2009). “‘Knowingly’
means that an act was done voluntarily and intentionally and not because of a
mistake or by accident.” United States v. Mosquera, 886 F.3d 1032, 1051 (11th
Cir. 2018). “[G]uilty knowledge can rarely be established directly, and . . . a jury
may infer knowledge and criminal intent from circumstantial evidence alone.”
United States v. Duenas, 891 F.3d 1330, 1334 (11th Cir. 2018).
The jury also may infer guilt based on the defendant’s own testimony
because “a statement by a defendant, if disbelieved by the jury, may be considered
as substantive evidence of the defendant’s guilt.” United States v. Brown, 53 F.3d
312, 314–15 (11th Cir. 1995). “At least where some corroborative evidence of
guilt exists for the charged offense . . . and the defendant takes the stand in his own
defense, the defendant’s testimony, denying guilt, may establish, by itself,
elements of the offense.” Id. That “rule applies with special force where the
elements to be proved for a conviction include . . . the defendant’s intent or
knowledge.” Id. at 315. “[W]holly incredible explanations may also form a
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sufficient basis to allow the jury to find that the defendant had the requisite guilty
knowledge.” United States v. Eley, 723 F.2d 1522, 1525 (11th Cir. 1984).
Tosca’s argument, as put before the jury in his testimony, is that he thought
he did not have to register in Florida for two reasons. First, the probation period
that was part of his sentence had ended in February 2015, roughly a year and a half
before he moved to Florida in late 2016, and he thought his duty to register had
ended with it. Second, his attorney, Ashley Green, told him he did not have to
keep registering after a December 2015 Massachusetts Supreme Judicial Court
decision changed his classification level from a Level Two to “preliminary.” There
is, he argues, no evidence that anybody ever told him he had to continue
registering for 20 years, or for any time after his probation ended in 2015, or in
2019 before he was arrested.
The jury quite reasonably could have rejected, and did reject, Tosca’s claim
that it was all just a misunderstanding on his part. The evidence showed that Tosca
had repeatedly registered as a sex offender in Massachusetts, reporting a variety of
address changes, and he had signed documents stating that he understood his
obligations, including his obligations to register in any new state he moved to.
That evidence strongly supports an inference that he knew he was required to
notify Florida of his sex offender status when he moved there.
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As for Tosca’s knowledge of how long the registration requirement would
apply to him, a witness from the Massachusetts Sex Offender Registry Board
testified that one of the most frequently asked questions by registrants is how long
they have to register. Even if there was no confirmation that Tosca ever asked that
question, the jury could reasonably have inferred that he had asked it and that he
had been told the duration was 20 years. There was no evidence that the Board or
any government official ever told him, at any point, in any way, that he could stop
registering. Tosca also told law enforcement when he was arrested in 2019 that he
did not like being branded as a sex offender. And having observed Tosca’s
demeanor when he denied knowing his obligation to register in Florida, the jurors
could have disbelieved his testimony and concluded that the opposite was true.
See Brown, 53 F.3d at 314–15. There was plenty of evidence to corroborate what
Tosca’s demeanor indicated to them.
Tosca argues that there is no evidence that he was ever told that he had to
keep registering after his probation period ended in February of 2015. That is not
true. In June 2015 police officers did a spot check at his residence to confirm that
he lived there. One of the officers who did that spot check testified that he spoke
to Tosca that day and, during these checks, he always told the offender that he was
there because of their sex offender status. The jury could reasonably have believed
that testimony and inferred that the officer told Tosca he was still a registered sex
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offender. And the jury could have reasonably inferred that, from that interaction,
Tosca knew that his duty to register had not ended when his probation period did
months earlier.
Not only that, but in October 2015, the Massachusetts Board mailed Tosca a
letter telling him he needed to register for the following year and that he had to do
so within five days. Tosca admitted during his testimony that at that time he still
lived at the address in Massachusetts where the letter was sent, and the Board had
no record of the letter having been returned as undelivered. Yet Tosca did not
register. The jury could reasonably have concluded that Tosca received that letter,
which was mailed to him eight months after his probation period ended, but he
moved out of state and knowingly failed to register.
Tosca did testify that he believed he no longer had to register, but the jury
could reasonably have discredited that testimony for numerous reasons and, having
observed his demeanor while testifying, it was entitled to do so. Tosca claimed he
had received a letter from his attorney, “Ashley Green,” and that the letter told him
he was no longer required to register because of his new classification level under
Massachusetts law. But Tosca did not present any corroborating evidence. He was
unable to produce the letter, even though he testified that it was important to him
and even though common sense suggests he would have held onto a document that
he believed evidenced his release from a legal obligation that carries potential
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criminal penalties. See United States v. Gomez-Castro, 605 F.3d 1245, 1249 (11th
Cir. 2010) (“[A] trier of fact can rely on common sense.”). In addition to Tosca
not having a copy of the letter, the Massachusetts Board had no record of the letter
in its files. Tosca also testified that attorney Green sent a cease and desist letter to
the Board. But again, he could not produce it and the Board had no record of it.
Nor did Tosca produce Green, whom he did not call as a witness. In fact, the
Board had no record of Green being Tosca’s attorney at all; instead, his attorney of
record was James Hanley.
Nor did the Board have any record of Tosca ever having been informed by
anyone that his classification level had changed from Level Two to “preliminary,”
much less that he was somehow relieved from his duty to register because of the
alleged change. Quite the opposite was true. A witness from the Board testified
that any change to Tosca’s classification level would have made no difference to
his registration obligations. The jury could reasonably have believed that Tosca’s
story about attorney Green was a concocted one.
In short, Tosca produced nothing to corroborate his testimony. And
substantial evidence undermined it. The evidence supported a reasonable inference
that Tosca knowingly violated SORNA after he moved to Florida, and that he lied
when he testified that he did not know of his obligation to register there as a sex
offender. And that lie, in turn, was further substantive evidence from which the
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jury could reasonably have concluded that Tosca had knowingly violated SORNA.
See Brown, 53 F.3d at 314–15. The evidence was sufficient.
AFFIRMED.
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