UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO.: 22-CR-60205-RUIZ

UNITED STATES OF AMERICA,

Plaintiff,

vs.

JOSHUA DAVID LUBITZ,

Defendant.

_________________________/

DEFENDANT’S MOTION FOR DOWNWARD VARIANCE

AND SENTENCING MEMORANDUM IN SUPPORT

(MENTAL HEALTH)

COMES NOW, the Defendant, JOSHUA DAVID LUBITZ, by and through his

undersigned attorney, pursuant to United States vs. Booker, 125 S. Ct. 738 (2005), Gall vs.

United States, 552 U.S. 38 (2007), and their progeny and requests this Court to impose “a

sentence sufficient, but not greater than necessary” to comply with all of the factors set forth in

Title 18 USC 3553(a). In this regard, the Defendant specifically requests this Honorable Court to

impose a sentence that varies downward from the Advisory Sentencing Guideline Range as set

forth in the Pre-Sentence Investigation Report. (PSR). Mr. Lubitz requests that this Court impose

a community-based sentence consisting of probation and/or house arrest with special conditions

addressing his mental health.

LEGAL BASIS FOR DOWNWARD VARIANCE

Mr. Lubitz requests that the Court consider varying below the advisory guideline range

based upon the factors contained in Title 18 USC 3553(a). Based upon Booker and its progeny,

an advisory guideline sentence is no longer mandatory. Under Booker, district courts are only

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required to give “some weight” to the advisory guidelines. Id. Section 3553(a) provides, inter

alia, that "...[t]he court shall impose a sentence sufficient, but not greater than necessary.” A

district court's task is to impose a sentence that will adequately (1) "reflect the seriousness of the

offense," (2) "promote respect for the law," (3) "provide just punishment," (4) "afford adequate

deterrence," (5) "protect the public from further crimes of the defendant," and (6) provide the

defendant with any needed training and treatment in the most effective manner. 18 U.S.C. §

3553(a)(2). The task is a holistic endeavor that requires the district court to consider a variety of

factors, which include: (1) the nature and circumstances of the offense, (2) the defendant's

history and characteristics, (3) the kinds of sentences available, (4) the applicable sentencing

guidelines range, (5) pertinent policy statements of the Sentencing Commission, (5) the need to

provide restitution to any victims, and (6) the need to avoid unwarranted sentencing disparities.

Id. § 3553(a).

Further, a court “may not presume that the [advisory] guideline range is reasonable”.

Gall, 128 S.Ct. at 596-97 (emphasis added); see also, United States v. Campbell, 491 F.3d 1306,

1313-1314 (11th Cir. 2007). Thus, after making an “individualized assessment” of the Section

3553(a) factors based on the facts presented, this Court has the power to grant a variance from

the advisory guidelines range to whatever extent it deems warranted.. In this case, the

Defendant's mental health clearly was a contributing factor that this Court should consider in

applying the 3553(a) factors to determining a “sufficient but not greater than necessary”

sentence.

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COURSE OF PROCEEDINGS

The incident that has resulted in the underlying charge in this case took place on August

17, 2022 while Joshua Lubitz voted at the Sunrise Senior Center during early voting in the

summer primary. Mr. Lubitz was not arrested at that time, but instead, Baker Acted by the police

and taken to University Pavillion Hospital in Tamarac, Florida for observation. The following

day Mr. Lubitz was transported to Broward General Hospital in Fort Lauderdale and was

subsequently deemed not to be a danger to himself or others and released. On October 6, 2022, a

grand jury indicted Mr. Lubitz for a violation of Title 52 U.S.C. 20511(1)(B), Intimidation in

Voting. Mr. Lubitz appeared before the Court for his initial appearance on October 7, 2022 and

was released on bond. Mr. Lubitz has been in compliance with all the terms and conditions of his

pretrial release while the case has been pending.

During the pendency of this case, the undersigned filed a notice of expert evidence of a

mental health condition, dated December 20, 2022. [DE 18] and provided the Government with a

copy of Joshua Lubitz’s Comprehensive Psychological Examination Report that was conducted

by Michael Brannon. Psy.D. The Government subsequently filed their motion for pretrial mental

health examination for determination of mental health conditions, dated December 22, 2022. [DE

21]. The government retained Harley V. Stock, Ph.D., to conduct their evaluation and report.

On May 10, 2023, Mr. Lubitz pled guilty to the single count Indictment. The parties

entered into a plea agreement where the government amongst other things agreed that they would

not object to a motion by the defense for a downward variance, although they reserved their right

as to the extent of the variance. Sentencing has been set for Monday, July 24, 2023 at 2:00 PM.

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NATURE AND CIRCUMSTANCES OF THE OFFENSE

While the offense conduct contained in paragraphs 7 through 9 of the PSR [DE 44],

outlines the events at the Sunrise Senior Center on the day in question, the actual responses from

the poll workers who witnessed and overheard Mr. Lubitz, gives a clearer picture of what

actually took place, including the reaction of the poll workers and Mr. Lubitz behavior. The

responses from Mr Lubitz’ family members, including his parents and his sister immediately

after the incident also provide appropriate background for the Court to consider in imposing

sentence. Provided to the Court and incorporated into this motion is an approximate 13-minute

video that was created by the undersigned counsel. This short video contains portions of 1

surveillance video at the Sunrise Center (no audio) and edited clips of the body worn camera

video (BWC) captured by responding officers. The Court is asked to watch the video in support

of the motion for downward variance. Most, if not all of the witnesses drew observations that day

that are consistent with the symptoms of Mr. Lubitz’s mental health condition.

THE DEFENDANT’S HISTORY AND CHARACTERISTICS

Joshua Lubitz is a quiet, unassuming and isolated man who is approaching middle age.

The ongoing support of his close family is the best aspect of his life. His mother is a retired

educator who inspired her 3 children to apply themselves academically and to find careers in

which they could flourish. All the Lubitz children performed well in school, and had no

disciplinary issues (not even detention). They all attended Florida universities. The eldest son,

Mike, has a popular South Florida radio/digital streaming business as a host/producer and as a

1 The video has been shared with the Court and Government via Google Drive. File name: Joshua David Lubitz

Sentencing.mov (1.21 GB)

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real estate professional, while younger sister Nicole is an educator like her mother. Mike and

Nicole graduated from their universities.

Mr. Lubitz completed his junior year at the University of Central Florida, but his

advancing mental health conditions complicated his ability to concentrate and to focus on

academics. He was not well enough to finish the final year. Mr. Lubitz invested years to reach

this point.

Mike Lubitz and Nicole Bohadana are both married. Nicole has 2 sons from her marriage

and 2 step-children. Mr. Lubitz maintains a close relationship with his young nephews and has

taken on a quasi-employee role as babysitter for his very busy sister. With a full-time job, 4

children, and the responsibilities of managing a household, Mrs. Bohadana needs reliable

childcare. Mr. Lubitz relishes his time with his nephews, and is creative about designing outings

that will both entertain and educate them. Their mother trusts her brother and he has never let her

or them down. It is an important contribution that Mr. Lubitz makes for his family and carries the

added benefit of being a source of self-esteem.

As the Court can see Mr. Lubitz has plenty of family support. The letters that have been

provided to this court in a separately filed submission [DE 52] show the strong bond that this

family has for one another. Mr. Lubitz’s parents and siblings are acutely familiar with his mental

health disability, and accept him as any family would with a sibling with special needs.

MENTAL HEALTH HISTORY

From interviews with Mr. Lubitz and his parents, it appears he had untreated mental

health symptoms as early as the second grade. What was then considered hyperactivity and

resistance to homework may have been signs of psychiatric issues. His parents recall that he

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always mumbled to himself, as a child, a behavior that continues to this day. Freshman year in

college, he became so distressed that his parents brought him home. He has been hospitalized

twice for severe anxiety, and was Baker Acted during this case and released within 24 hours. It is

important to note, from the records reviewed and family interviews, at no time has anyone

suggested that he is a danger to himself or others.

It is also important to note that the PSR states:

“PART F. RECOMMENDED SPECIAL CONDITIONS OF

SUPERVISION 72. Mental Health Treatment: The defendant shall

participate in an approved inpatient/outpatient mental health treatment

program. The defendant will contribute to the costs of services

rendered (co-payment) based on ability to pay or availability of

third-party payment.”

Given Mr. Lubitz's long history of mental health symptoms, his in- and outpatient

treatment, evaluations from his treating psychiatrist, and multiple psychological evaluations,

the special condition of mental health treatment is understandable and we support this finding.

In 2002, Mr. Lubitz attended his first counseling session. When his insurance provided

coverage, Mr. Lubitz found treatment resources to deal with his anxiety and

Obsessive-Compulsive Disorder (OCD). During his early twenties, he was on an upward

trajectory professionally and was relatively stable; however, he could not sustain his

employment. He has proceeded on a downward spiral to such a degree that he has lived with his

parents for the past 10 years and is now wholly supported by them. He is desperate to get weekly

counseling, but cannot afford insurance to cover the costs. After extended unemployment, caused

by his mental health problems and exacerbated with the Pandemic and dearth of jobs, Mr. Lubitz

decided to apply for benefits. He’s been waiting more than a year. While being denied the first

time is the norm, the Agency has been encouraging him and gave him an online site to check

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progress. They also recently called his mother to get extra information for his application. All he

can do now is wait.

According to the forensic psychological evaluation performed by Michael P Brannon,

Psy.D., 11760 W. Sample Road, Suite 103 Coral Springs, FL 33065, Mr. Lubitz, “mental health

history at the time of evaluation included the following DSM-5-TR Diagnoses:

Obsessive-Compulsive Disorder and Cannabis Use Disorder (the latter reportedly in remission at

this time). The examinee reported numerous symptoms of a major mental disorder. Telephone

interviews with the examinee’s parents corroborated the examinee’s history of mental illness and

ongoing treatment for the symptoms of that condition.

Psychological testing resulted in findings of stress, somatic complaints, anxiety, and

social isolation. Validity testing designed to assess for response distortion did not reveal any

indications of poor effort or malingering. Prior mental health records revealed a diagnosis of

Obsessive-Compulsive Disorder (OCD) and the prescription of psychotropic medication for that

condition.” Videos of the examinee’s actions on the date of the instant offense and his

interactions with police provide clear indications of his mental health disorder, including social

discomfort and excessive verbalizations. The same behaviors that were reported by witnesses

and observed in the videos mentioned above were noted to have occurred throughout the

examinee’s clinical interview and psychological testing with this examiner.

The examinee should continue to comply with his currently prescribed regimen of

psychotropic medication. He would also benefit from participation in weekly individual

counseling sessions with a mental health professional specializing in the treatment of anxiety

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disorders. The examinee’s prognosis for a successful treatment outcome was determined to be

good at this time.”

This is Mr. Lubitz's first felony conviction. No one in his extended family has been in

trouble before. From the first time Law Enforcement encountered him in the present case, Mr.

Lubitz has been fully cooperative. Mr. Lubitz wishes to move forward and to use this experience

constructively to help him better cope with his mental health issues. He has become more

cognizant of his condition, especially the symptoms that have resulted in his constant mumbling

and talking to himself which has permeated for a long time, yet not publicly noticed by anyone to

the degree it has been noticed and affected him in this case. Clearly, having a felony conviction is

going to make the journey back to productivity more difficult for Mr. Lubitz, but not impossible.

With the strong support of his family and community- based supervision, including getting and

maintaining ongoing counseling that his chronic OCD requires, the prognosis for Mr. Lubitz is

good.

Finally, the protection of the public can be achieved by Mr. Lubitz being supervised in

the community on probation or house arrest with special conditions addressing his mental health.

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CONCLUSION

WHEREFORE, the Defendant, JOSHUA DAVID LUBITZ, for all of the reasons set

forth above, respectfully requests this Honorable Court to impose a sentence that varies

downward from the advisory guideline range as permitted by 18 USC 3553(a). A

community-based sentence consisting of probation and/or house arrest combined with special

conditions addressing Mr Lubitz’s mental health is clearly within this Court’s authority and

discretion. Moreover, such a downward variance sentence is just and reasonable, fair and

appropriate.

Respectfully submitted by,

JONATHAN S. FRIEDMAN, P.A.

ATTORNEY FOR JOSHUA DAVID LUBITZ

101 N.E. 3RD AVE.

SUITE 1500

FORT LAUDERDALE, FLORIDA 33301

TELEPHONE: (954) 713-2820

FACSIMILE: (754) 301-5109

EMAIL: JFRIEDMANLAWFIRM@GMAIL.COM

/S/ JONATHAN FRIEMDAN

_________________________________

JONATHAN S. FRIEDMAN, ESQ.

FLORIDA BAR NUMBER: 973297

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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on July 18, 2023, the undersigned attorney electronically filed

the foregoing document with the Clerk of the Court, United States Attorney’s Office and other

counsel of record, if any, using CM/ECF and has served same via U.S. Mail to those counsel(s)

or individuals, if any, who are not authorized to receive electronically Notice of Electronic

Filing.

/S/ JONATHAN FRIEMDAN

_________________________________

JONATHAN S. FRIEDMAN, ESQ.

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