U.S. v. Sarras, 2009 WL 1661152 (June 16, 2009)
The defendant’s expert failed to show his expert’s methodology in comparing the defendant’s penis with the penis in sexually explicit photos was sufficiently reliable for admission on identification issue.
The defendant was convicted of persuading his step daughter to engage in sexually explicit conduct for taking photos of the conduct and for possession of child pornography. Though the defendant was separated from the mother, the child would stay in his house. At some point the step daughter went to authorities and reported that several times when the step daughter stayed at his house he began having oral sex and sexual intercourse with her and took digital photos of this and downloaded to his computer. After one mistrial, the defendant was convicted. At trial, Sarras argued that he was not the man in the laptop photos because he has a mole on his penis, and no mole was visible in the laptop photos. However, the government contended that no mole is visible in the laptop photos because they show only the top of the penis and that Sarras’ mole is actually near the bottom of his penis. The dispute at trial was the location of the mole on the Sarras’ penis. The defendant called a urologist to give his expert opinion but the trial court would not let him give his conclusion that the defendant’s penis was not the same as the one in the photos. The court ruled that the defendant had not shown that the “doctor’s methodology-comparing veins in erect penises was a sufficiently reliable identification technique for Dr. Ferdon to opine that Sarras was not the person in the laptop photos. In fact, no record evidence explains the so-called methodology of comparing veins in erect penises as an identification technique.”
The 1200 month sentence was presumed to be reasonable because it was within the Guidelines.
The PSI calculated the guideline range as 30 to life but the statutory maximum was 30 years for three counts and 10 years for one count. (100 years). Under 5G1.2(d) the Guidelines call for a consecutive because the maximum on each count is less than the total punishment under the Guidelines, which the PSI determined was life. The Court upheld the Guidelines calculation and that because the sentence was within the Guideline, it was presumed to be reasonable.
