In U.S. v. Sarras, No. 08-11757 (June 16, 2009), the Court affirmed convictions and sentences for persuading a step-daughter to engage in sexually explicit conduct for photos.
The Court rejected the argument that a doctor the defense called as a witness should have been permitted to opine that, based on his expertise in examining penises, the penis shown on photographs was not that of the defendant. The Court found that the district court had not abused its discretion in concluding that comparing veins in erect penises was not a "reliable identification methodology."
The Court found no abuse of discretion in the preclusion of defense questioning of the victim, under Fed. R. Evid. 412, regarding subsequent sexual activity. "Victims of sexual abuse can be traumatized whether or not they have had other sexual relations."
The Court dismissed as "rank speculation" the claim that the Sheriff’s office had a financial interest in forfeiture, and therefore should have been cross-examined on this topic.
The Court rejected the argument that the social worker who testified for the government should not have been permitted to give lay opinion testimony, under Fed. R Evid. 701, that it is not unusual for a child sex victim to fail remember exact dates and times. The Court agreed that this was expert, not lay testimony, but found any error harmless, because "the key issue involved identifying the abuser, not pinpointing precisely when the abuse occurred."
The Court also rejected the challenge to the failure to conduct a Franks hearing regarding the search affivadit for Sarras’ home. The Court noted that the allegations in the affidavit regarding sexual activity and photographs sufficed to support probable cause for a search.
Finally, the Court affirmed the sentence of 1,200 months. The Court affirmed a two-level obstruction of justice enhancement based on Sarras’ manipulation of photos of his penis to avoid conviction. The sentence was within the Guidelines range, and was reasonable for an offense "among the most egregious and despicable."
