No Cross-Examination On Forfeiture Of Defendant’s Residence Absent Showing Officer's Personal Interest

In child pornography prosecution, in the absence of any showing that the officers had a direct or personal financial interest in the result of the case, the trial court properly excluded cross-examinationthat the Sheriff’s Office would receive about 25 percent of the proceeds resulting from the forfeiture of the defendant’s home, in United States v. Sarras, 571 F.3d 1111 (11th Cir. June 16, 2009) (No. 08-11757)

Criminal forfeiture may be ordered for “any property constituting, or derived from, proceeds the person obtained directly or indirectly, as the result of” certain listed offenses. 18 U.S.C. § 982(a)(2) (Criminal Forfeiture). Normally, the proceeds of the criminal forfeiture are ultimately used by law enforcement and distributed under a pre-established formula.

In a recent child pornography prosecution, the defendant’s residence was seized and subject to criminal forfeiture as part of the prosecution. See, e.g., 18 U.S.C. § 2253 (Child Pornography, Criminal Forfeiture). At trial, the issue was raised whether the defense should be permitted to cross-examine the officers about the proceeds of the forfeiture going to the Sheriff’s Office as an effort to show bias.

Evidence of bias is normally relevant. See, e.g., United States v. Abel, 469 U.S. 45, 51 (1984) (“A successful showing of bias on the part of a witness would have a tendency to make the facts to which he testified less probable in the eyes of the jury than it would be without such testimony.”). As the Supreme Court has explained “Bias is a term used in the ‘common law of evidence’ to describe the relationship between a party and a witness which might lead the witness to slant, unconsciously or otherwise, his testimony in favor or against a party. Bias may be induced by a witness’ like, dislike, or fear of a party, or by the witness’ self-interest.” Id. at 52. To what extent would the forfeiture of the property suggest bias by the law enforcement officers investigating the case?

In the case, when the minor was fourteen years old, she reported to law enforcement that her step-father had sexual intercourse and oral sex with her and took pictures of this activity when she stayed at his residence when she was thirteen. A state search warrant was executed and a laptop computer, digital camera, and other computer equipment was seized. An examination revealed 41 photographs of the minor, including 27 of her nude and 14 engaging in sex acts. After charges were filed, the first jury trial resulted in a hung jury. At the second trial, the defendant sought to cross-examine officers to suggest that the forfeiture of his residence demonstrated a financial interest in the case; specifically, that the Sheriff’s Office where the officers worked “stood to gain a significant amount of money should Mr. Sarras be convicted and the forfeiture be successful.” Sarras, 571 F.3d at 1134. If the forfeiture was ordered, the Sheriff’s Office would receive 25 percent of the proceeds. The defendant was convicted by the second jury on all counts.

The Eleventh Circuit affirmed the exclusion of the cross-examination of the officers on the forfeiture issue. The evidence had little if any probative value to show bias and was substantially outweighed by the danger of confusion the issues, or misleading the jury, or by considerations of undue delay, waste of time. Sarras, 571 F.3d at 1135 (citing United States v. Novaton, 271 F.3d 968, 1006 (11th Cir. 2001) (stating that “a defendant is only entitled to cross-examine a witness if “the information sought to be elicited [is] relevant” (alteration in original) (citations and quotations marks omitted)); Howell v. Am. Live Stock Ins. Co., 483 F.2d 1354, 1358 (5th Cir. 1973) (impeachment limited due to “[t]he possibility that the trial would become involved in a lengthy wrangle over a side issue”).

In concluding there was no abuse of discretion, the circuit explained:

“First, Sarras proffered no evidence showing any officer-witness had a direct or personal financial interest in the case. In fact, the officers’ alleged interest in the case is best described as just the opposite: indirect, impersonal, and tenuous. This case is about child pornography—not forfeiture. To suggest that the officers were biased because the Sheriff’s Office that employed them may have benefitted from a forfeiture is rank speculation. Such testimony had little, if any, probative value as to bias. Rather, such testimony had the potential to confuse the jury and distract it from the central issues, warranting the district court’s exclusion…. Here, the law enforcement officers did not have a direct or personal financial interest in this case.”
Sarras, 571 F.3d at 1135.

While evidence of bias is usually relevant, a sufficient showing of bias is required. In the case, there was an inadequate showing that the mere criminal forfeiture of the property with some of the proceeds going to the Sheriff’s Office demonstrated bias or a financial interest by the officers in the case.

Federal Rules of Evidence