UNITED STATES OF AMERICA v. ROSE BETH LITZKY
No. 20-10709
United States Court of Appeals for the Eleventh Circuit
November 23, 2021
[PUBLISH]
Appeal from the United States District Court for the Middle District of Florida
D.C. Docket No. 6:18-cr-00223-RBD-EJK-2
Before JORDAN, NEWSOM, and ED CARNES, Circuit Judges.
Rose Beth Litzky and Roberto Oquendo had two young daughters. Oquendo is a pedophile. And while he was away from home, Litzky sent him hundreds of nude images and videos of the girls—both of whom were under the age of five. Litzky was ultimately convicted of possessing child pornography, producing it, and conspiring to do the same.
Litzky‘s appeal raises two claims of error. First, she argues that the district court violated her constitutional right to present a defense by excluding expert testimony related to her intellectual disability. Second, she insists that her below-Guidelines sentence was substantively unreasonable. Because neither claim has merit, we affirm.
I
A
When Roberto Oquendo was pulled over for a traffic stop in Melbourne, Florida,
She was interviewed by two federal agents—Aja Stake and Michael Spadafora. Though Litzky initially denied responsibility, she later admitted that she had produced graphic pictures of her daughters for Oquendo while he was away in Virginia for several months. The agents found more naked photos of the children stored on Litzky‘s phone.
Eventually, Litzky confessed to sending approximately 500 nude images and videos of her two children to Oquendo for his sexual gratification. Ordinarily, we would spare you the graphic details, but, as it turns out, they‘re relevant to the sentencing issue we have to decide. So, here they are: The photos that Litzky took were focused on the girls’ vaginal and buttocks areas, and she confessed that she sometimes spread the vagina of her daughters apart when taking the pictures. When she would tell one of the girls to “open her legs” to take a picture for Oquendo, the girl would ask, “For daddy?” When Litzky would say yes, the young girl would respond by saying, “Oh, I know what daddy likes,” and then place her fingers on her vagina. In addition, during video calls, Litzky would pose the girls for Oquendo by spreading their legs or vaginal labia, or instruct them to fondle themselves before the camera. Litzky believed that all of this began when her elder daughter was only two years old and her younger daughter was just born. Oquendo identified Litzky as a “willing participant” in the sexual abuse. In fact, Litzky would sometimes “initiate sending Oquendo nude pictures” or “lure Oquendo back to the house or ask for money by sending nude or posed pictures of the girls to him.” On at least one occasion, she told Oquendo to “[g]o play“—meaning masturbate—after he saw the girls naked. Importantly here, Litzky confessed that she knew all of this was wrong, but that she did it to please her pedophilic paramour.
B
Prior to an indictment being filed, Litzky‘s attorney referred her to Dr. Valerie McClain for what the latter described as a “psychological evaluation to assess [Litzky‘s] competency to proceed and address mitigating factors for sentencing.” During the visit, Dr. McClain learned that Litzky had a history of physical abuse by her parents and was gang raped at the age of 13. Litzky was also in the “mildly intellectually deficient range.” And she told Dr. McClain that Oquendo was abusive. Dr. McClain concluded that Litzky‘s “intellectual disability coupled with her history of victimization placed her in a position of extreme vulnerability without the necessary protective support to protect herself and her children.”
Litzky was later indicted for various child-pornography offenses. See
Following the hearing, the district court granted the government‘s motion to exclude Dr. McClain‘s testimony. In short, the court said that “the problem [with] Dr. McClain‘s proffered opinions” is that they “do not focus on [Litzky]‘s specific state of mind at the time of the charged offenses.” Doc. 102 at 9. Because the testimony “fail[ed] to show how [Litzky] was unable to form the required mens rea“—and the evidence lacked “an adequate foundation” to boot—the district court concluded that the testimony would only serve to “confuse” the jury. Id. at 10–11.
Litzky proceeded to trial without Dr. McClain‘s testimony, and the jury found her guilty as charged.
C
After trial, the district court determined that Litzky‘s total offense level was 43 and that with a criminal history category of I, her advisory Guidelines sentence was 960 months (80 years).1 The children‘s adoptive mother then offered a victim-impact statement, characterizing Litzky as a “true monster” who “used these girls as [her] personal pawns to get money and things [she] wanted.” According to the adoptive mother, the children were “uncontrollable due to [the] sexual abuse, trauma, and loss.” Both would hit themselves, cry hysterically for hours, and projectile vomit as a result of “overwhelming fear.” One of the daughters “literally equated sexual abuse with love.” She “routinely pose[d] provocatively wanting her picture taken” and would “touch herself and others inappropriately.” Beyond that, she “would lay down on the bed and spread her legs open and brace herself waiting for someone to victimize her” at bedtime.
Despite these harrowing facts, the district court decided to vary downward—and significantly so. It thought that the Guidelines’ recommended sentence would be “excessive,” particularly in view of Litzky‘s difficult childhood and her intellectual disability. Doc. 228 at 12, 14, 16. But, focusing on the
court also found that Litzky‘s requested sentence of 15 years would be “insufficient to achieve the statutory purposes of sentencing.” Id. at 16–17. As the court explained, “the complicity of a mother in the sexual abuse of her own children to satisfy the perverted sexual lust of her paramour deserves
Litzky timely appealed, raising one challenge to her conviction and one to her sentence.
II
We begin with Litzky‘s challenge to her conviction. She contends that the district court‘s exclusion of Dr. McClain‘s testimony gutted her preferred theory of defense and thereby violated her constitutional rights.2 Because Dr. McClain‘s proffered testimony wasn‘t keyed to any legally acceptable defense theory, we reject Litzky‘s argument.
A
The Constitution “guarantees criminal defendants a meaningful opportunity to present a complete defense.” Crane v.
Kentucky, 476 U.S. 683, 690 (1986) (quoting California v. Trombetta, 467 U.S. 479, 485 (1984)). But that right isn‘t absolute. See Michigan v. Lucas, 500 U.S. 145, 149 (1991). “[F]ederal rulemakers have broad latitude under the Constitution to establish rules excluding evidence from criminal trials.” United States v. Scheffer, 523 U.S. 303, 308 (1998); see Taylor v. Illinois, 484 U.S. 400, 410 (1988) (“The accused does not have an unfettered right to offer testimony that is incompetent, privileged, or otherwise inadmissible under standard rules of evidence.“). And “[s]uch rules do not abridge an accused‘s right to present a defense so long as they are not ‘arbitrary’ or ‘disproportionate to the purposes they are designed to serve.‘” Scheffer, 523 U.S. at 308 (quoting Rock v. Arkansas, 483 U.S. 44, 56 (1987)). Put simply, “the right to introduce relevant evidence can be curtailed if there is a good reason for doing that.” Clark v. Arizona, 548 U.S. 735, 770 (2006).
“A policy“—like that embodied in
B
She has not done so—principally because Dr. McClain‘s testimony wasn‘t geared to any issue that the jury was
Despite the IDRA‘s limitations, the law “does not, by its terms, prohibit psychiatric evidence relevant to issues other than excuse or justification of otherwise criminal conduct.” Id. Accordingly, we‘ve held that “psychiatric evidence is still admissible where it negates the mens rea of a specific intent crime.” United States v. Bates, 960 F.3d 1278, 1288 (11th Cir. 2020). Litzky claims that Dr. McClain‘s expert testimony—though otherwise inadmissible— falls into this latter category. But even assuming that the production of child pornography is a specific-intent crime, Litzky‘s argument still falls short.
That‘s because she “has failed to demonstrate how her psychiatric evidence would negate intent and not merely present a dangerously confusing theory of defense more akin to justification and excuse than a ‘legally acceptable theory of lack of mens rea.‘” United States v. Cameron, 907 F.2d 1051, 1067 (11th Cir. 1990) (quoting United States v. Pohlot, 827 F.2d 889, 906 (3d Cir. 1987)). To reiterate, Dr. McClain opined that Litzky‘s “intellectual disability coupled with her history of victimization placed her in a position of extreme vulnerability.” Doc. 115-9 at 4 (emphasis added). But vulnerability connected to intellectual disability isn‘t a basis for acquittal. See
In response, Litzky suggests that her desire to please Oquendo negates her mens rea. That‘s incorrect. The mens rea element “is generally satisfied . . . by any showing of purposeful activity, regardless of its psychological origins.” Pohlot, 827 F.2d at 904; see Westcott, 83 F.3d at 1358. So Litzky‘s motive to produce child pornography—whether the product of her mental condition or not—is beside the point. Dr. McClain‘s opinion might suggest impaired volitional control on Litzky‘s part. But where, as here, “the defendant claims to have psychiatric evidence relevant to ‘an incapacity to reflect or control the behaviors that produced the criminal conduct, such evidence is not “psychiatric
Furthermore, even if Dr. McClain‘s testimony were relevant and “critical to [Litzky‘s] defense,” Litzky hasn‘t shown that the evidence “bore persuasive assurances of trustworthiness.” Chambers v. Mississippi, 410 U.S. 284, 302 (1973); see Pittman v. Sec‘y, Fla. Dep‘t of Corr., 871 F.3d 1231, 1248 (11th Cir. 2017) (“Pittman would only be entitled to a constitutional override of Florida‘s rules if Pittman had offered evidence that the Hodges’ hearsay statement was sufficiently trustworthy and reliable.“); see also Scheffer, 523 U.S. at 312 (holding that the blanket exclusion of polygraph evidence didn‘t violate the right to present a defense, as the law was “a rational and proportional means of advancing the legitimate interest in barring unreliable evidence“). Rule 702 “requires that trial courts act as ‘gatekeepers’ to ensure that speculative, unreliable expert testimony does not reach the jury.” Kilpatrick v. Breg, Inc., 613 F.3d 1329, 1335 (11th Cir. 2010) (citing Daubert, 509 U.S. at 589 n.7, 597). And here, the district court found that Dr. McClain didn‘t have an “adequate foundation” to testify regarding Litzky‘s ability to form the intent necessary to commit the charged crimes. Doc. 102 at 11. The court also determined that admitting the testimony wouldn‘t “‘assist the trier of fact‘” and would instead lead to “speculat[ive]” and “foundationless inference drawing.” Id. (quoting
Litzky next turns to Dr. McClain‘s testimony at the evidentiary hearing. But that testimony—that Litzky wouldn‘t have produced the pornographic content absent Oquendo‘s requests—suffers from the same basic defect. Namely, it doesn‘t speak to the legally salient issue. See United States v. Ruggiero, 791 F.3d 1281, 1290 (11th Cir. 2015) (holding that the Constitution “does not require that the jury be allowed to hear evidence that is not relevant
To be sure, Litzky‘s preferred defense strategy might have been to deflect blame onto Oquendo and play on the jury‘s sympathies. But the mere fact that Dr. McClain‘s testimony “would have been helpful to [Litzky]‘s defense does not provide a compelling reason for admitting that testimony despite its failure to satisfy Daubert and the rules of evidence.” Gillis, 938 F.3d at 1195. Indeed, the district court expressed legitimate concerns about the likelihood that Dr. McClain‘s testimony would only confuse the jury and distract from the relevant issues. See Cameron, 907 F.2d at 1067 (explaining that psychiatric evidence “presents an inherent danger that it will distract the jury[] from focusing on the actual presence or absence of mens rea“). And that further supports the constitutionality of the district court‘s exclusion. “As the Supreme Court [has] explained, ‘the Constitution leaves to the judges who must make these admissibility decisions wide latitude to exclude evidence that poses an undue risk of confusion of the issues.‘” United States v. Mitrovic, 890 F.3d 1217, 1226 (11th Cir. 2018) (alterations adopted) (quoting Crane, 476 U.S. at 689–90); see also Holmes v. South Carolina, 547 U.S. 319, 326–27 (2006); United States v. Machado, 886 F.3d 1070, 1086 (11th Cir. 2018).
In fact, the Court in Clark v. Arizona specifically observed that “allowing mental-disease evidence on mens rea can . . . easily mislead” a jury. 548 U.S. at 776. And because of that risk, the Court held that it was constitutionally permissible for Arizona “to avoid confusion and misunderstanding on the part of jurors” by “confining consideration of this kind of evidence to insanity.” Id. at 776, 779. That is, the categorical exclusion of expert opinion evidence “from consideration on the element of mens rea” didn‘t violate the accused‘s right to present a defense. Id. at 764, 779. This case presents the same legitimate concerns. See Cameron, 907 F.2d at 1067. And it demands the same conclusion: Litzky‘s right to present a defense was not violated.
Finally, Litzky complains that the prosecutor asked Agent Stake whether she observed any autism disorder or intellectual disability during her interviews with Litzky. This, Litzky says, put Litzky‘s disability “directly at play” and required the admission of Dr. McClain‘s testimony. Br. of Appellant at 40. We disagree. For one thing, Litzky opened the door to this line of questioning. It was done by the prosecutor on redirect and in response to defense counsel‘s effort to probe Agent Stake‘s experience with individuals with intellectual disabilities—specifically autism—and the police department‘s related policies in questioning such persons. Moreover, Dr. McClain‘s testimony “was not necessary to correct any misleading impressions that may have been created by” Agent Stake‘s comments. United States v. Hurn, 368 F.3d 1359, 1367 (11th Cir. 2004). The prosecutor expressly acknowledged that Agent Stake wasn‘t an expert. Her lay testimony offered little more than what the jury would have been able to discern for itself in hearing recordings of Litzky‘s prior interviews and her live trial testimony. And again, Dr. McClain‘s proffered testimony just wasn‘t “highly significant to a material element of the case.” United States v. Funches, 135 F.3d 1405, 1408 (11th Cir. 1998). It would have served only to explain Litzky‘s actions, not to negate the intent behind those actions. See Cameron, 907 F.2d at 1067.4 While this evidence of intellectual disability might have provided a reason for sentence mitigation, see Penry v. Lynaugh, 492 U.S. 302, 328 (1989), it wouldn‘t have given the jury “a reason in law not to convict,” Hurn, 368 F.3d at 1367 (quoting Funches, 135 F.3d at 1408).
In sum, because Litzky hasn‘t demonstrated that her constitutional rights were violated by the exclusion of Dr. McClain‘s testimony, we affirm her conviction.
III
Now to the alleged sentencing error. Litzky submits that even though her 30-year sentence was 600 months below the Guidelines’ recommendation, it was substantively unreasonable. This claim, too, is meritless.
We review the reasonableness of a district court‘s sentence for an abuse of discretion. Gall v. United States, 552 U.S. 38, 41 (2007). Under this deferential standard, we “may vacate the sentence only if we are left with the definite and firm conviction that the district court committed a clear error of judgment in weighing the [18 U.S.C.] § 3553(a) factors’ by imposing a sentence that falls outside the range of reasonableness as dictated by the facts of the case.” United States v. Taylor, 997 F.3d 1348, 1355 (11th Cir. 2021) (per curiam) (quoting United States v. Irey, 612 F.3d 1160, 1190 (11th Cir. 2010) (en banc)). As the challenger, Litzky “has the burden of showing that the sentence is unreasonable in light of the entire record, the § 3553(a) factors, and the substantial deference afforded sentencing courts.” United States v. Rosales-Bruno, 789 F.3d 1249, 1256 (11th Cir. 2015). And that burden is particularly onerous where, as in this case, the district court has imposed a sentence significantly below that recommended by
Litzky has not carried that heavy burden here. In a 17-page opinion, the district court thoroughly and thoughtfully explained why it believed a downward variance of 50 years—but no more— met the goals of sentencing. That determination was well within the bounds of reasoned discretion.
Start with the seriousness of Litzky‘s offense and the need to provide just punishment. See
That was no exaggeration. As summarized in her presentence report, Litzky took “approximately 500 images and videos of her two children, with the focus of the pictures being on the children‘s vaginal and buttocks areas, to send to Oquendo for his sexual gratification.” “Sometimes Litzky would initiate sending Oquendo nude pictures of the girls” to “lure Oquendo back to the house or ask for money.” She furthermore admitted to authorities “that she spread [her child‘s] vagina apart when taking the pictures” and would “tell” one of her children “to open her legs” while posing nude, “for Daddy.” Likewise, Litzky would “instruct” the girls “to touch themselves” and “would pose the girls” for Oquendo in “a sexually explicit manner.”
Such conduct toward any child would be utterly reprehensible. But it is made even worse by the fact that the perpetrator was the mother of the victims—both of whom were less than five years old and in their formative years. These tragic factors magnify the seriousness of the offense and the need for severe punishment. See Irey, 612 F.3d at 1209 (“The less it takes to have the statutory minimum sentence imposed, the higher the sentence should be for someone who does much, much worse than the minimum amount of criminal behavior that would violate the statute.“). Indeed, the traumatic effects of Litzky‘s misconduct have already manifested in both young girls, and they will likely persist for some time—if not forever. As the district court summarized, “[t]he life sentence of mental and emotional anguish and torment inflicted upon the precious children . . . cries out for extreme sanction.” Doc. 228 at 14; see Irey, 612 F.3d at 1207 (“Childhood sexual abuse has devastating and long-lasting effects on its victims.” (citing New York v. Ferber, 458 U.S. 747, 758 n.9 (1982))).
In addition to emphasizing the heinous nature of the offenses, the district judge took pains to avoid unwarranted sentence disparities. See
Finally, the district court agreed with Litzky that her intellectual impairment and rough upbringing constituted “mitigating factors.” See
All told, Litzky‘s 30-year sentence—a dramatic downward variance—was substantively reasonable.
We AFFIRM.
JORDAN, Circuit Judge, concurring:
Judge Newsom‘s opinion for the court correctly applies our precedent, and I therefore concur in full. I write separately to note an observation about our cases concerning psychiatric expert testimony that does not satisfy the Insanity Defense Reform Act,
Our cases have interpreted the IDRA “to prohibit the presentation of evidence of mental disease or defect, short of insanity, to excuse conduct.” United States v. Westcott, 83 F.3d 1354, 1358 (11th Cir. 1996). So far, so good—if expert testimony about the defendant does not satisfy the IDRA, it is inadmissible. But things are not so simple, for our cases also hold that “psychiatric evidence is still admissible where it negates the mens rea of a specific intent crime.” United States v. Bates, 960 F.3d 1278, 1288 (11th Cir. 2020). As we‘ve put it, “[e]vidence offered as ‘psychiatric evidence to negate specific intent’ is admissible . . . when such evidence focuses on the defendant‘s specific state of mind at the time of the charged offense.” United States v. Cameron, 907 F.2d 1051, 1067 (11th Cir. 1990) (citing with approval a Seventh Circuit case which held that evidence that a defendant “suffered from a mental condition that made it highly unlikely that he would make . . . a [certain] threat” was admissible). See also Bates, 960 F.3d at 1288 (“[E]vidence that the defendant actually lacked mens rea . . . is admissible to negate the mens rea element of an offense.“); 4 Weinstein‘s Federal Evidence § 704.06[1] (2d ed. 2021) (“Congress did not intend to bar all psychiatric testimony offered to negate specific intent. . . . Indirect testimony on the mental condition of the defendant that helps the jury to reach a decision about the ultimate legal issue of whether that condition constitutes an element of the crime charged is admissible[.]“).
But that principle, it seems to me, runs headlong into
I‘m not sure we‘ve ever really reconciled our rulings on the IDRA, on psychiatric evidence to negate specific intent, and on Rule 704(b). Maybe the answer is that, in a case involving a specific intent crime, an expert can testify as to the “typical effect” of a condition on a “person‘s mental state” and allow the jury to draw (or not draw) the ultimate inference as to the defendant‘s intent (or lack thereof). See, e.g., United States v. Gillis, 938 F.3d 1181, 1194–95 (11th Cir. 2019) (stating that “an expert may, consistent with Rule 704(b), give testimony that supports an obvious inference with respect to the defendant‘s state of mind if that testimony does not actually state an opinion on [the] ultimate issue and instead leaves this inference for the jury to draw“) (internal quotations omitted); United States v. Davis, 835 F.2d 274, 276 (11th Cir. 1988) (upholding question posed to expert as to whether multiple personality disorder, in and of itself, indicates that a person is unable to understand what he is doing); United States v. Childress, 58 F.3d 693, 727–28 (D.C. Cir. 1995) (testimony is limited to “diagnoses, the facts upon which these diagnoses are based, and the characteristics of any mental disease or defect the expert[ ] believe[s] the defendant possessed during the relevant time period,” and the expert must not opine directly or indirectly on the ultimate issue of specific intent).
But even this description is not wholly satisfactory. And that is, at least in part, because the way in which we have applied these legal principles has resulted in a nearly unworkable standard. In Gillis, for example, the defendant was charged with attempting to knowingly induce or entice a minor to engage in sexual activity, in violation of
So, based on our precedent, an expert cannot testify to a defendant‘s capacity to form mens rea. See Bates, 960 F.3d at 1288. And an expert also cannot testify to the defendant‘s mental state at the time of the crime. See Gillis, 938 F.3d at 1194. Or perhaps she can. See Bates, 960 F.3d at 1288.
I do not know how district courts are supposed to make sense of our holdings so that they can “carefully examine” proffered psychiatric evidence “to ascertain whether it would, if believed, ‘support a legally acceptable theory of lack of mens rea.‘” Cameron, 907 F.2d at 1067. Threading this needle involves “very difficult line drawing,” United States v. Santos, 131 F.3d 16, 20 (1st Cir. 1997), as exemplified by cases such as United States v. Bennett, 161 F.3d 171, 183–84 (3d Cir. 1998) (affirming exclusion not only of expert testimony that the defendant was precluded by his mental disorders from forming intent to defraud but also of expert testimony that he was unlikely to act knowingly and willfully), and our cases can‘t possibly be of much help in the trenches. One day, in an appropriate case, we‘ll need to provide better guidance.