United States v. Litzky

18 F.4th 1296

UNITED STATES of America, Plaintiff-Appellee,

v.Rose Beth LITZKY, Defendant-Appellant.

No. 20-10709

United States Court of Appeals, Eleventh Circuit.

Filed November 23, 2021

Roberta Josephina Bodnar, U.S. Attorney's Office-FLM, Ocala, FL, Linda Julin McNamara, U.S. Attorney's Office, Tampa, FL, U.S. Attorney Service-Middle District of Florida, U.S. Attorney's Office, Tampa, FL, for Plaintiff-Appellee.

Stephen John Langs, Karla Mariel Reyes, James T. Skuthan, Federal Public Defender's Office, Orlando, FL, Rosemary Cakmis, Law Office of Rosemary Cakmis, Orlando, FL, for Defendant-Appellant.

Before Jordan, Newsom, and Ed Carnes, Circuit Judges.

Newsom, Circuit Judge:

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, two of his passengers told police that he had child pornography on his phone. The police interviewed Oquendo, and he admitted to taking "pictures of the genital area of his daughters for his sexual gratification" while living with their mother, Rose Beth Litzky. Upon further investigation, law-enforcement officers discovered thousands of lewd images of naked children on Oquendo's electronic devices. Among those images were screenshots of video conversations between Oquendo and Litzky from numerous dates over several months, where Litzky was posing the two child victims, focusing on their vaginas. The investigation then turned to Litzky.

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 vaginas 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 18 U.S.C. §§ 2251(a), (e), 2252A(b)(2). Before trial, the government moved to prevent Dr. McClain from testifying. At an evidentiary hearing on the matter, Dr. McClain confirmed that she still believed Litzky had a "mild[ ] intellectual[ ] disab[ility]" and "PTSD." When asked whether "people with intellectual disability ... have the wherewithal to form intent," Dr. McClain responded that "they are capable depending upon the person." But she didn't specify whether she thought Litzky—or even someone with a similarly "mild" disability—could form the specific intent to produce child pornography. Even so, Dr. McClain admitted that the evidence showed that Litzky had the "behavioral capacity" to spread her daughter's legs "for the purpose of taking a picture" and that Litzky knew how to use her phone to take and transmit photographs. Rather than offering evidence to negate Litzky's intent, then, Dr. McClain merely testified that, "based upon a reasonable degree of psychological certainty," Litzky "would not have taken the pictures" if Oquendo hadn't requested them.

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 § 3553(a) factors, 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 a special place in the bowel of human depravity." Id. at 14. And even after she was found guilty, Litzky didn't "express contrition or remorse." Id. at 17. Thus, the district court determined that a 30-year sentence—followed by a life term of supervised release—was appropriate.

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, 106 S.Ct. 2142, 90 L.Ed.2d 636 (1986) (quoting California v. Trombetta , 467 U.S. 479, 485, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984) ). But that right isn't absolute. See Michigan v. Lucas , 500 U.S. 145, 149, 111 S.Ct. 1743, 114 L.Ed.2d 205 (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, 118 S.Ct. 1261, 140 L.Ed.2d 413 (1998) ; see Taylor v. Illinois , 484 U.S. 400, 410, 108 S.Ct. 646, 98 L.Ed.2d 798 (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, 118 S.Ct. 1261 (quoting Rock v. Arkansas , 483 U.S. 44, 56, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987) ). Put simply, "the right to introduce relevant evidence can be curtailed if there...