United States District Court, M.D. Florida, Orlando Division
DALTON JR. UNITED STATES DISTRICT JUDGE.
the Court is Defendant Rose Beth Litzky's Renewed Motion
for Judgment of Acquittal and Motion for New Trial. (Doc. 180
("Motion").) The Government
opposes. (Doc. 199.) On review, the Motion is denied.
child pornography case, a federal grand jury returned an
indictment against Ms. Litzky and her co-conspirator Robert
Oquendo on September 26, 2018. (Doc. 1
("Indictment").) The Indictment
charged Ms. Litzky with conspiracy to produce child
pornography, production of child pornography, and possession
of child pornography- all involving Ms. Litzky and Mr.
Oquendo's two minor daughters. (Id.; see also,
e.g., Doc. 190.) Following a jury trial beginning on
July 23, 2019, the jury returned a guilty verdict on all
counts against Ms. Litzky. (Docs. 142, 156.)
the denial of Ms. Litzky's oral motion for judgment of
acquittal and renewed motion, Ms. Litzky now moves for a
post-trial judgment of acquittal and new trial based on the
alleged insufficiency of the evidence and the Court's
exclusion of duress and diminished capacity evidence.
(See Docs. 146, 147, 180.) With the Government
response (Doc. 199), the matter is ripe.
Rule 29(c) Motion for a Judgment of Acquittal
Rule of Criminal Procedure 29(c) permits a defendant to move
for a judgment of acquittal challenging the sufficiency of
evidence to support the verdict. The court must
"evaluate the evidence in the light most favorable to
the government, and draw all reasonable inferences and
credibility assessments in the government's favor."
United States v. Dean, 487 F.3d 840, 847 (11th Cir.
2007) (citing United States v. Harris, 20 F.3d 445,
452 (11th Cir. 1994)). "[N]o distinction is to be made
between the weight given to either direct or circumstantial
evidence." United States v. Doe, 661 F.3d 550,
560 (11th Cir. 2011) (quoting United States v.
Mieres-Borges, 919 F.2d 652, 656-57 (11th Cir. 1990)).
For the verdict to stand, "[a]ll that is necessary is
that a reasonable factfinder could conclude that the evidence
establishes guilt beyond a reasonable doubt."
Mieres-Borges, 919 F.2d at 656 (citing United
States v. Kelly, 888 F.2d 732, 740 (11th Cir. 1989)).
Rule 33 Motion for a New Trial
33(a) permits a court, on a defendant's motion, to
"vacate any judgment and grant a new trial if the
interest of justice so requires." When, as here,
excluding evidence is at issue, a new trial isn't
warranted for "alleged errors in exclusion of evidence
where matters of substance are not affected." United
States v. Socony-Vacuum Oil Co., 310 U.S. 150, 231
(1940) (citation omitted). Instead, a new trial is warranted
only if "[a] significant possibility . . . exist[s]
that, considering the other evidence presented by both the
prosecution and the defense, the . . . [error] had a
substantial impact upon the verdict of the jury."
United States v. Arbolaez, 450 F.3d 1283, 1290 (11th
Cir. 2006) (quoting United States v. Rodriguez, 524
F.2d 485, 487 (5th Cir. 197b))." [W]here an
[evidentiary] error had no substantial influence on the
outcome, and sufficient evidence uninfected by error supports
the verdict, reversal is not warranted." United
States v. Hawkins, 905 F.2d 1489, 1493 (11th Cir. 1990).
a defendant gets a new trial "falls 'within the
sound discretion of the trial court/" United States
v. Albury, 782 F.3d 1285, 1295 (11th Cir. 2015) (quoting
United States v. Vicaria, 12 F.3d 195, 198 (11th
Cir. 1994)). The discretion to grant a new trial, however, is
not without limit: "The court may not reweigh the
evidence and set aside the verdict simply because it feels
some other result would be more reasonable." United
States v. Martinez, 763 F.2d 1297, 1312-13 (11th Cir.
1985) (citation omitted). Instead, "[t]he evidence must
preponderate heavily against the verdict, such that it would
be a miscarriage of justice to let the verdict stand."
Id. (citations omitted). Courts should grant a new
trial "sparingly and with caution," only in
"exceptional cases." Id. (citation
Litzky raises two overarching arguments: First, the
Government failed to present enough evidence to establish
guilt on any charge. (Doc. 180, pp. 1-5 ("JOA
Motion").) Second, the Court erred in excluding
Ms. Litzky's evidence of duress and diminished capacity
related to the specific intent to commit the crimes charged.
(Id. at5-11 ("New Trial Motion").) The
Court takes up each below.