575 F.3d 1191 (11th Cir. 2009), 08-11757, United States v. Sarras

Docket Nº:08-11757.
Citation:575 F.3d 1191
Opinion Judge:HULL, Circuit Judge.
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Donatos SARRAS, Defendant-Appellant.
Attorney:Terrence Edward Kehoe, Law Offices of Terrence E. Kehoe, Orlando, FL, for Defendant-Appellant. Roberta Josephina Bodnar, Peggy Morris Ronca, AUSA, Orlando, FL, for Plaintiff-Appellee.
Judge Panel:Before CARNES, HULL and COX, Circuit Judges.
Case Date:July 23, 2009
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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575 F.3d 1191 (11th Cir. 2009)

UNITED STATES of America, Plaintiff-Appellee,

v.

Donatos SARRAS, Defendant-Appellant.

No. 08-11757.

United States Court of Appeals, Eleventh Circuit.

July 23, 2009

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Terrence Edward Kehoe, Law Offices of Terrence E. Kehoe, Orlando, FL, for Defendant-Appellant.

Roberta Josephina Bodnar, Peggy Morris Ronca, AUSA, Orlando, FL, for Plaintiff-Appellee.

Appeal from the United States District Court for the Middle District of Florida.

ON PETITION FOR PANEL REHEARING

Before CARNES, HULL and COX, Circuit Judges.

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HULL, Circuit Judge.

The previous opinion issued in this case, United States v. Sarras, 571 F.3d 1111 (11th Cir.2009), is hereby VACATED. In its place, on petition for panel rehearing, we file this revised opinion. The petition for panel rehearing is otherwise DENIED.

Defendant-Appellant Donatos Sarras appeals his convictions and sentences for persuading his minor step-daughter to engage in sexually explicit conduct for the purpose of producing photos of such conduct and for knowingly possessing child pornography. After review and oral argument, we affirm.

I. BACKGROUND

In 2000, the minor victim ("E.M.") was seven years old, and defendant Sarras married her mother. In October 2005, Sarras and E.M.'s mother divorced, but they did not tell E.M. about the divorce until July 2006. Sarras did not move out of the family residence (the " Wheatfield residence") until August 2006. After moving out, Sarras kept a bedroom for E.M. in his new home (the " Tweed residence"). E.M. stayed overnight with Sarras at the Tweed residence three times a week during the fall of 2006, which is when the sexual conduct occurred.

Sarras was charged with knowingly persuading E.M. to engage in sexually explicit conduct on October 16, 17, and 23, 2006, in violation of 18 U.S.C. § 2251(a), (e) (Counts I, II, and III), and knowingly possessing child pornography on May 7, 2007, in violation of 18 U.S.C. § 2252A(a)(5)(B) and (b)(2) (Count IV). The first trial resulted in a hung jury. Sarras was convicted on all counts in the second trial. We detail the procedural history and evidence from the second trial.

A. Officer Ortiz's Recorded Interview

On May 7, 2007, E.M., then fourteen years old, reported to the Seminole County, Florida, Sheriff's Office that, when she was thirteen years old, Sarras had engaged in sexual intercourse with her and had taken pictures. On May 7, Dana Ortiz, an investigator with the office's Division of Crimes against Children, conducted a sworn, recorded interview of E.M.

E.M. told Ortiz that Sarras was her stepfather and she stayed with him at the Tweed residence several nights a week. According to E.M., around October or November 2006, Sarras began having sexual intercourse and oral sex with E.M. during her visits to his Tweed residence unless she " made up an excuse" to avoid it. Sarras had sexual intercourse with E.M. more than ten times, performed oral sex on her about three times, and had her perform oral sex on him more than ten times. E.M. was unsure of the dates of these sexual encounters and could not say for sure whether they were before or after Thanksgiving or Christmas.

E.M. told Officer Ortiz that, on one occasion, Sarras took " a lot" of pictures while she was naked and while she was performing sexual acts on and with him. Sarras used a digital camera that he kept at his Tweed residence.1 Asked if Sarras had shown her pictures of other girls, E.M. said he had not. Sarras tried to show E.M. the pictures he took of her, but she did not want to look at them and refused. E.M. said that Sarras's laptop computer was always on the coffee table in front of the television. E.M. believed that Sarras had downloaded the pictures to his laptop because " he said that he wanted to store them so he could ... look at them sometimes."

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Under the supervision of Officer Ortiz, E.M. telephoned Sarras. During the recorded call, Sarras repeatedly denied any involvement in the alleged offenses and asked if E.M. needed help. Sarras told E.M. that he was going to call her mother immediately about the call. Sarras attempted to call several times, but, at Ortiz's direction, E.M.'s mother did not answer. Within minutes of the call, Sarras deleted 41 sexual images of E.M. on his laptop, uninstalled his access to LimeWire, and deleted adult pornographic images downloaded earlier that day through LimeWire.2

B. Search of Sarras's Home

Immediately after the Sarras call, Officer Ortiz prepared an affidavit for a warrant to search Sarras's home.3 Ortiz's affidavit said the victim reported that: (1) her stepfather, Sarras, sexually battered her at his residence from October 2006 through January 2007; (2) Sarras had sexual intercourse with her more than ten times, licked her breast approximately two times, performed oral sex on her approximately three times, and received oral sex from her over ten times; and (3) Sarras took numerous pictures of their sexual activities with a digital camera that he kept in his home. The affidavit listed types of erotic depictions that computer forensic examiners should look for in the seized media and identified computers and other devices capable of storing such depictions digitally.

Finding that Ortiz's affidavit established probable cause, a state circuit judge issued a warrant authorizing the officers (1) to search Sarras's residence " for computer or digital data, programs, applications, files, electronic communications, or other digitally stored date [sic], dynamic data such as processes, open files, services, data in memory, data in an encrypted or decrypted state ... in the form of graphics files ... or other visual depiction or other physical computer/digital data of [a] child of less than eighteen (18) years of age" engaging in sexual acts and (2) to image forensically " [t]he data storage devices" onsite or at the Sheriff's Office computer forensic lab depending on any technical limitations encountered at the described location.

At Sarras's Tweed residence, officers seized a laptop computer from the coffee table, a Sony Cybershot digital camera, and other computer equipment.4 A search of the camera's memory stick revealed 41 images of E.M. engaged in sexually explicit conduct. A search of the laptop computer revealed the same 41 images ("the laptop photos"). A computer forensics examiner determined that (1) all of the pictures were taken with a Sony Cybershot digital camera, (2) 15 photos were taken on October 16, 2006, (3) 10 were taken on October 17, 2006, and (4) 16 were taken on October 23-24, 2006.

Of the 41 laptop photos, 27 capture E.M. alone, posing nude, and 14 showed E.M. engaging in sex acts with an adult male. These 14 images appear to have been taken by the adult male in the images because they do not show his face and show only

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the top side of his erect penis. The 14 images show the man and E.M. engaged in oral and vaginal intercourse. Most of these 14 pictures appear to have been taken during intercourse and thus display only a part of the shaft of the erect penis. Of the 14 photos showing the penis, 1 was taken on October 16, 2006, in Sarras's bedroom at the Tweed residence, 5 were taken on October 17, 2006, in E.M.'s mother's bedroom at the Wheatfield residence, and 8 were taken on October 23-24, 2006, in Sarras's bedroom at the Tweed residence. The 27 photos showing E.M. alone, posing nude, also were spread over the 3 days.

C. Sarras's Motion to Suppress

Sarras moved to suppress the evidence seized from his Tweed residence, alleging that (1) Ortiz's affidavit contained deliberate and material falsehoods and omissions and (2) a Franks hearing was required.5 The magistrate judge's report recommended denial of Sarras's suppression motion. The magistrate judge found " no basis to conclude that Investigator Ortiz acted intentionally or with reckless disregard in omitting material facts from the affidavit." Rather, the magistrate judge determined that " the claimed omissions are selective characterizations of what the child said, most of which are immaterial to the probable cause determination in any event." The magistrate judge concluded that " [t]here is no indication how these statements, even if true, vitiate the allegations in the Affidavit or the crux of the case: the child's testimony that her stepfather had sex with her and took photographs of her, on a digital camera which he kept at his house."

The district court denied Sarras's suppression motion and request for a Franks hearing. The district court found that " there existed a fair probability that evidence of the crimes charged would be found in the Defendant's residence" and, as to the search affidavit, " [t]he level of detail the Defendant demands is legally unsupportable." The district court agreed with the magistrate judge's finding that there was no basis to conclude that Officer Ortiz acted intentionally or with reckless disregard in omitting material facts from her affidavit and that there was no indication of how the statements Sarras contends were omitted, even if true, " vitiate the allegations in the Affidavit or the crux of the case."

D. Defense and Government Photos

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 is visible in the laptop photos. 6 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's mole is actually near the bottom of his penis. At trial, it was...

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