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United States v. Litzky

United States District Court, M.D. Florida, Orlando Division

December 11, 2019

UNITED STATES OF AMERICA
v.
ROSE BETH LITZKY

          ORDER

          ROY B. DALTON JR. UNITED STATES DISTRICT JUDGE.

         Before 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.

         I. Background

         In this 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.)

         After 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.

         II. Legal Standards

         A. Rule 29(c) Motion for a Judgment of Acquittal

         Federal 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)).

         B. Rule 33 Motion for a New Trial

         Rule 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)[1])." [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).

         Whether 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 omitted).

         III. Discussion

         Ms. 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.[2]

         A. ...


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