United States v. Rose Beth Litzky

USCA11 Case: 20-10709 Date Filed: 11/23/2021 Page: 1 of 24
[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-10709
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROSE BETH LITZKY,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 6:18-cr-00223-RBD-EJK-2
____________________
USCA11 Case: 20-10709 Date Filed: 11/23/2021 Page: 2 of 24
2 Opinion of the Court 20-10709
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 ulti-
mately 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-en-
forcement 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
USCA11 Case: 20-10709 Date Filed: 11/23/2021 Page: 3 of 24
20-10709 Opinion of the Court 3
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 con-
fessed 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.
USCA11 Case: 20-10709 Date Filed: 11/23/2021 Page: 4 of 24
4 Opinion of the Court 20-10709
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 “psy-
chological 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 victimi-
zation 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 of-
fenses. 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
USCA11 Case: 20-10709 Date Filed: 11/23/2021 Page: 5 of 24
20-10709 Opinion of the Court 5
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 pho-
tographs. 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 govern-
ment’s motion to exclude Dr. McClain’s testimony. In short, the
court said that “the problem [with] Dr. McClain’s proffered opin-
ions” 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 foun-
dation” 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.
USCA11 Case: 20-10709 Date Filed: 11/23/2021 Page: 6 of 24
6 Opinion of the Court 20-10709
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.” Ac-
cording to the adoptive mother, the children were “uncontrollable
due to [the] sexual abuse, trauma, and loss.” Both would hit them-
selves, cry hysterically for hours, and projectile vomit as a result of
“overwhelming fear.” One of the daughters “literally equated sex-
ual abuse with love.” She “routinely pose[d] provocatively want-
ing her picture taken” and would “touch herself and others inap-
propriately.” Beyond that, she “would lay down on the bed and
spread her legs open and brace herself waiting for someone to vic-
timize her” at bedtime.
Despite these harrowing facts, the district court decided to
vary downward—and significantly so. It thought that the Guide-
lines’ 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
1 Litzky’stotal offense level was actually 53, but the district court capped it at
43 pursuant to Application Note 2 to the Sentencing Guidelines Table. Alt-
hough the Guidelines “range” for this offense level would normally be life, it
was reduced to 80 years to account for various statutory maximums. See
U.S.S.G. § 5G1.2 & App. Note 3(B); 18 U.S.C. §§ 2251(e), 2252A(b)(2).
USCA11 Case: 20-10709 Date Filed: 11/23/2021 Page: 7 of 24
20-10709 Opinion of the Court 7
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 convic-
tion 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 testi-
mony gutted her preferred theory of defense and thereby violated
her constitutional rights. 2 Because Dr. McClain’s proffered testi-
mony wasn’t keyed to any legally acceptable defense theory, we
reject Litzky’s argument.
A
The Constitution “guarantees criminal defendants ‘a mean-
ingful opportunity to present a complete defense.’” Crane v.
2 “Whether the exclusion of evidence violated a constitutional guarantee is a
legal question reviewed de novo.” United States v. Sarras, 575 F.3d 1191, 1209
n.24 (11th Cir. 2009).
USCA11 Case: 20-10709 Date Filed: 11/23/2021 Page: 8 of 24
8 Opinion of the Court 20-10709
Kentucky, 476 U.S. 683, 690 (1986) (quoting California v. Trom-
betta, 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 ex-
cluding 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 tes-
timony 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 de-
signed to serve.’” Scheffer, 523 U.S. at 308 (quoting Rock v. Arkan-
sas, 483 U.S. 44, 56 (1987)). Put simply, “the right to introduce rel-
evant 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 Federal Rule of Evidence
702—“which aims at preventing the use of unreliable or misleading
expert evidence in criminal trials is far from arbitrary.” United
States v. Frazier, 387 F.3d 1244, 1272 (11th Cir. 2004) (en banc).
And Litzky doesn’t dispute that Dr. McClain’s testimony was inad-
missible under Rule 702. See Daubert v. Merrell Dow Pharm., Inc.,
509 U.S. 579, 589–97 (1993) (describing how courts should apply
Rule 702 to exclude unreliable or unhelpful expert testimony). Ac-
cordingly, to show that she “was deprived of [her] constitutional
right to present a defense, [Litzky] must demonstrate a compelling
USCA11 Case: 20-10709 Date Filed: 11/23/2021 Page: 9 of 24
20-10709 Opinion of the Court 9
reason for making an exception to the expert witness rules in this
case.” United States v. Gillis, 938 F.3d 1181, 1195 (11th Cir. 2019).
B
She has not done so—principally because Dr. McClain’s tes-
timony wasn’t geared to any issue that the jury was tasked with
deciding. Under the Insanity Defense Reform Act (IDRA), it is an
affirmative defense to a criminal charge “that, at the time of the
commission of the acts constituting the offense, the defendant, as
a result of a severe mental disease or defect, was unable to appreci-
ate the nature and quality or the wrongfulness of [her] acts.” 18
U.S.C. § 17(a). But that’s it: A “[m]ental disease or defect does not
otherwise constitute a defense.” Id. We have thus 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). And Litzky has ex-
pressly disavowed any claim that she fits within the IDRA’s circum-
scribed definition of insanity. She has also admitted—first in her
interview with federal agents, and again at trial—that she knew
what she was doing was wrong.
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. Accord-
ingly, 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—
USCA11 Case: 20-10709 Date Filed: 11/23/2021 Page: 10 of 24
10 Opinion of the Court 20-10709
falls into this latter category. But even assuming that the produc-
tion of child pornography is a specific-intent crime, Litzky’s argu-
ment still falls short.
That’s because she “has failed to demonstrate how her psy-
chiatric 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 disabil-
ity coupled with her history of victimization placed her in a posi-
tion of extreme vulnerability.” Doc. 115-9 at 4 (emphasis added).
But vulnerability connected to intellectual disability isn’t a basis for
acquittal. See 18 U.S.C. § 17(a); Bates, 960 F.3d at 1290. Instead,
“Congress chose to eliminate any form of legal excuse based upon
psychological impairment that does not come within the carefully
tailored definition of insanity in section 17(a).” Cameron, 907 F.2d
at 1061. To aid the jury, then, Dr. McClain “would have to provide
the ‘link’ between [Litzky]’s condition and the likelihood that, at
the time of the offense,” she didn’t form the intent to produce or
otherwise agree to produce child pornography. Bates, 960 F.3d at
1290. Dr. McClain didn’t do so. Her report’s lack of “focus[] on
[Litzky]’s state of mind at the time of the allegedly criminal inci-
dents” therefore dooms Litzky’s constitutional claim. Westcott, 83
F.3d at 1358; see Bates, 960 F.3d at 1290.
USCA11 Case: 20-10709 Date Filed: 11/23/2021 Page: 11 of 24
20-10709 Opinion of the Court 11
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 ac-
tivity, 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 evidence to ne-
gate specific intent” and should not be admitted.’” Bates, 960 F.3d
at 1288–89 (alterations adopted) (quoting Cameron, 907 F.2d at
1066).
Furthermore, even if Dr. McClain’s testimony were relevant
and “critical to [Litzky’s] defense,” Litzky hasn’t shown that the ev-
idence “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 evi-
dence didn’t violate the right to present a defense, as the law was
“a rational and proportional means of advancing the legitimate in-
terest in barring unreliable evidence”). Rule 702 “requires that trial
USCA11 Case: 20-10709 Date Filed: 11/23/2021 Page: 12 of 24
12 Opinion of the Court 20-10709
courts act as ‘gatekeepers’ to ensure that speculative, unreliable ex-
pert 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 “spec-
ulat[ive]” and “foundationless inference drawing.” Id. (quoting
Fed. R. Evid. 702); see Frazier, 387 F.3d at 1272 (“[T]he trial judge’s
role as gatekeeper is designed to ensure that the jury, in carrying
out its prescribed role, bases its determinations on relevant and re-
liable evidence, rather than on speculation or otherwise unreliable
conjecture.”). Although Litzky acknowledges these points, she
doesn’t challenge them. And that’s a problem. As we have held en
banc, “a court may constitutionally enforce evidentiary rules to
limit the evidence an accused . . . may present in order to ensure
that only reliable opinion evidence is admitted at trial.” Frazier,
387 F.3d at 1272; see Gillis, 938 F.3d at 1195; United States v.
Rushin, 844 F.3d 933, 941 (11th Cir. 2016); cf. Clark, 548 U.S. at 778(noting the “real risk that an expert’s judgment in giving capacity
evidence will come with an apparent authority that psychologists
and psychiatrists do not claim to have”). 3
3 Litzky stresses that, even if Dr. McClain’s methodology wasn’t sound and she
lacked an adequate foundation, she was still well qualified as an expert. But
that presents more—not less—cause for concern. “There is often an inherent
USCA11 Case: 20-10709 Date Filed: 11/23/2021 Page: 13 of 24
20-10709 Opinion of the Court 13
Litzky next turns to Dr. McClain’s testimony at the eviden-
tiary hearing. But that testimony—that Litzky wouldn’t have pro-
duced the pornographic content absent Oquendo’s requests—suf-
fers 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 re-
quire that the jury be allowed to hear evidence that is not relevant
to any element of the crime or an affirmative defense”). As already
explained, whether Litzky knew what she was doing when she pro-
duced the pornographic images of her children—not whether, as a
general matter, she had mental health issues or was vulnerable to
manipulation—was the relevant question. See Cameron, 907 F.2d
at 1061, 1067. And because Dr. McClain’s opinion “does not bear”
on this question, Bates, 960 F.3d at 1290, there is no “massive need
for the excluded testimony” that might support a constitutional ex-
ception to the rules of evidence, Knight v. Dugger, 863 F.2d 705,
729 (11th Cir. 1988).
To be sure, Litzky’s preferred defense strategy might have
been to deflect blame onto Oquendo and play on the jury’s sympa-
thies. But the mere fact that Dr. McClain’s testimony “would have
danger with expert testimony unduly biasing the jury because of its aura of
special reliability and trust.” United States v. Boney, 977 F.2d 624, 631 (D.C.
Cir. 1992) (quotation marks omitted); see Kumho Tire Co. v. Carmichael, 526
U.S. 137, 149 (1999). And that risk is only exacerbated when an expert holds
impressive qualifications and nevertheless introduces foundationless or unre-
liable testimony. See Frazier, 387 F.3d at 1261.
USCA11 Case: 20-10709 Date Filed: 11/23/2021 Page: 14 of 24
14 Opinion of the Court 20-10709
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. In-
deed, 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) (al-
terations 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 “confin-
ing 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
USCA11 Case: 20-10709 Date Filed: 11/23/2021 Page: 15 of 24
20-10709 Opinion of the Court 15
presents the same legitimate concerns. See Cameron, 907 F.2d at
1067. And it demands the same conclusion: Litzky’s right to pre-
sent a defense was not violated.
Finally, Litzky complains that the prosecutor asked Agent
Stake whether she observed any autism disorder or intellectual dis-
ability 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. Moreo-
ver, 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 tes-
timony. 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
USCA11 Case: 20-10709 Date Filed: 11/23/2021 Page: 16 of 24
16 Opinion of the Court 20-10709
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 con-
vict,” Hurn, 368 F.3d at 1367 (quoting Funches, 135 F.3d at 1408).
* * *
In sum, because Litzky hasn’t demonstrated that her consti-
tutional rights were violated by the exclusion of Dr. McClain’s tes-
timony, we affirm her conviction.
4 Litzky seemed to take a somewhat different tack in her reply brief. There,
she suggested as a fallback that the district court should at least have admitted
Dr. McClain’s testimony to provide context for the jury as to the weight to be
afforded to Litzky’s inculpatory statements to police. This belated theory is
forfeited. See United States v. Lopez, 649 F.3d 1222, 1246 (11th Cir. 2011). But
even if not, it fails on the merits. The district court rightly noted that “Dr.
McClain’s report and testimony provide no opinion on the interviews by po-
lice in this case or any information as to why [Litzky]’s specific intellectual
disability or other mental health issues would make her more susceptible to
providing a false confession.” Doc. 102 at 13. Because “Dr. McClain’s opin-
ions would not be particularly probative of the weight properly afforded to
[Litzky]’s admissions and would instead be highly prejudicial,” the district
court excluded them. Id. Litzky doesn’t challenge that application of Federal
Rule of Evidence 403 on appeal. And she offers no authority suggesting that
the district court’s proper application of Rule 403 was constitutionally infirm.
See Clark, 548 U.S. at 770; Holmes, 547 U.S. at 326; Montana v. Egelhoff, 518
U.S. 37, 42 (1996) (plurality op.) (stating that Rule 403 and similar evidentiary
rules are “unquestionably constitutional”); Rushin, 844 F.3d at 941.
USCA11 Case: 20-10709 Date Filed: 11/23/2021 Page: 17 of 24
20-10709 Opinion of the Court 17
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 sen-
tence 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 bur-
den of showing that the sentence is unreasonable in light of the en-
tire record, the § 3553(a) factors, and the substantial deference af-
forded 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 sen-
tence significantly below that recommended by the Guidelines.
See United States v. Cubero, 754 F.3d 888, 898 (11th Cir. 2014).
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—
USCA11 Case: 20-10709 Date Filed: 11/23/2021 Page: 18 of 24
18 Opinion of the Court 20-10709
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 18 U.S.C. § 3553(a)(1), (a)(2)(A). This
court has repeatedly recognized that “[c]hild sex crimes are among
the most egregious and despicable of societal and criminal of-
fenses.” United States v. Sarras, 575 F.3d 1191, 1220 (11th Cir.
2009); accord United States v. Hall, 965 F.3d 1281, 1299 (11th Cir.
2020); United States v. Kirby, 938 F.3d 1254, 1259 (11th Cir. 2019);
Irey, 612 F.3d at 1206. And the district court similarly characterized
Litzky’s misconduct as “heinous,” “disturbing,” “appalling,” and
“horrific.” Doc. 228 at 3, 4, 14.
That was no exaggeration. As summarized in her presen-
tence report, Litzky took “approximately 500 images and videos of
her two children, with the focus of the pictures being on the chil-
dren’s vaginal and buttocks areas, to send to Oquendo for his sex-
ual 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 pos-
ing 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 reprehensi-
ble. But it is made even worse by the fact that the perpetrator was
USCA11 Case: 20-10709 Date Filed: 11/23/2021 Page: 19 of 24
20-10709 Opinion of the Court 19
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 min-
imum 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 (“[C]hildhood sexual abuse has devas-
tating 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 of-
fenses, the district judge took pains to avoid unwarranted sentence
disparities. See 18 U.S.C. § 3553(a)(6). He compared specific sen-
tences that he had imposed for three other mothers accused of sex-
ually abusing their own children and explained why some of those
sentences were lower or higher. On top of that, he examined the
national data for similar maternal offenders, noting that the aver-
age sentence was 339 months—quite close to Litzky’s ultimate sen-
tence, and well below many sentences we’ve upheld for child-por-
nography producers. See, e.g., Kirby, 938 F.3d at 1259 (1,440
months); Sarras, 575 F.3d at 1221 (1,200 months); United States v.
USCA11 Case: 20-10709 Date Filed: 11/23/2021 Page: 20 of 24
20 Opinion of the Court 20-10709
Johnson, 451 F.3d 1239, 1240–41 (11th Cir. 2006) (per curiam)
(1,680 months).
Finally, the district court agreed with Litzky that her intel-
lectual impairment and rough upbringing constituted “mitigating
factors.” See 18 U.S.C. § 3553(a)(1). But it determined that these
factors weren’t enough to justify Litzky’s request to depart all the
way down to the mandatory minimum of 15 years. Instead, the
court concluded that the “gravity of the offense,” coupled with
Litzky’s “refus[al] to express contrition or remorse for her own role
in victimizing her children,” justified a 30-year sentence. Doc. 228
at 17. That was not an abuse of discretion. See, e.g., United States
v. Isaac, 987 F.3d 980, 995–96 (11th Cir. 2021) (upholding 80-year
sentence in case involving sex offenses against a minor in part due
to defendant’s “lack of remorse”); Hall, 965 F.3d at 1299 (same for
forty-year sentence); Sarras, 575 F.3d at 1220–21 (same for 100-year
sentence).
All told, Litzky’s 30-year sentence—a dramatic downward
variance—was substantively reasonable.
* * *
We AFFIRM.
USCA11 Case: 20-10709 Date Filed: 11/23/2021 Page: 21 of 24
20-10709 JORDAN, J., Concurring 1
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 testi-
mony that does not satisfy the Insanity Defense Reform Act, 18
U.S.C. § 17.
Our cases have interpreted the IDRA “to prohibit the
presentation of evidence of mental disease or defect, short of insan-
ity, to excuse conduct.” United States v. Wescott, 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 spe-
cific intent crime.” United States v. Bates, 960 F.3d 1278, 1288 (11th
Cir. 2020). As we’ve put it, “[e]vidence offered as ‘psychiatric evi-
dence to negate specific intent’ is admissible . . . when such evi-
dence 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 ad-
missible to negate the mens rea element of an offense.”); 4 Wein-
stein’s Federal Evidence § 704.06[1] (2d ed. 2021) (“Congress did
not intend to bar all psychiatric testimony offered to negate specific
USCA11 Case: 20-10709 Date Filed: 11/23/2021 Page: 22 of 24
2 JORDAN, J., Concurring 20-10709
intent. . . . Indirect testimony on the mental condition of the de-
fendant 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 Rule
704(b) of the Federal Rules of Evidence, which provides that “[i]n
a criminal case, an expert witness must not state an opinion about
whether the defendant did or did not have a mental state or condi-
tion that constitutes an element of the crime charged or of a de-
fense. Those matters are for the trier of fact alone.” So, what
seems like a prohibition on certain psychiatric evidence (the IDRA)
has an exception of sorts (evidence that negates the mens rea of a
specific intent crime), but that exception faces an evidentiary rule
of exclusion (Rule 704(b)).
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 con-
dition 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
USCA11 Case: 20-10709 Date Filed: 11/23/2021 Page: 23 of 24
20-10709 JORDAN, J., Concurring 3
omitted); United States v. Davis, 835 F.2d 274, 276 (11th Cir. 1988)
(upholding question posed to expert as to whether multiple per-
sonality 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 defend-
ant possessed during the relevant time period,” and the expert must
not opine directly or indirectly on the ultimate issue of specific in-
tent).
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 18 U.S.C. § 2422(b), a specific intent crime. He sought
to introduce expert testimony, based on a psychosexual evaluation,
that he was not interested in prepubescent children. We affirmed
the exclusion of this expert’s testimony as nothing more than “a
thinly veiled attempt by the defense to offer an expert opinion that
[the defendant] lacked the requisite intent for the [charged] of-
fense.” 938 F.3d at 1194. Although our ultimate conclusion that
the district court properly excluded the expert’s testimony may
have made sense in that case, our analysis failed to shed light on
the type of testimonial evidence that qualifies as permissible non-
insanity psychiatric evidence. We explained that in a specific intent
USCA11 Case: 20-10709 Date Filed: 11/23/2021 Page: 24 of 24
4 JORDAN, J., Concurring 20-10709
case an expert can “opine on the defendant’s intent” without run-
ning afoul of Rule 704(b) where the expert does not opine on the
ultimate issue and leaves an “inference for the jury to draw.” Id.
But, as noted, we concluded that the proffered expert testimony
“veered into the impermissible territory of offering an opinion on
[the defendant’s] mental state.” Id.
So, based on our precedent, an expert cannot testify to a de-
fendant’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” prof-
fered psychiatric evidence “to ascertain whether it would, if be-
lieved, ‘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 testi-
mony 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.