|IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
UNITED STATES OF AMERICA,
JOHN DAVID LAYNE,
Before JONES and STEWART, Circuit Judges, and DUPLANTIER(1), District Judge.
CARL E. STEWART, Circuit Judge:
John David Layne appeals his conviction under 18 U.S.C. 2252(a)(4)(B), for possession of child pornography. For the following reasons, his conviction is affirmed.
On February 26, 1992, officers of the Harris County Sheriff's Department executed a search warrant at John Layne's residence in Houston, Texas. During the execution of the warrant, they seized a large amount of pornography including one magazine portraying a woman dressed as a child wearing pigtails and rollers skates and a second magazine entitled " Chicken," which contained depictions of minor children engaged in sexual conduct.
When Detective Roger Wedgeworth asked Layne whether he had any other pornography, Layne allegedly responded that he had some old European-type pornography in a storage facility in Rosenberg, Texas. Based on his training and experience, Detective Wedgeworth understood that the term " European pornography" referred to child pornography. Detective Wedgeworth obtained and executed a search warrant for the storage unit and seized 40 magazines which visually depicted minor children engaged in sexually explicit conduct.
Layne was indicted for one count of knowingly possessing three or more magazines that had travelled in interstate commerce and which depict minors in sexually explicit conduct in violation of 18 U.S.C. 2252(a)(4)( B). After a jury trial he was found guilty and sentenced to 37 months of imprisonment to run concurrently with a sentence imposed by a state court, and to a two-year term of supervised release.
Sufficiency of the Evidence Argument
A sufficiency of the evidence challenge fails if a rational trier of fact could have found that the Government proved the essential elements of the crime charged beyond a reasonable doubt. United States v. Webster, 960 F. 2d 1301, 1307-08 (5th Cir.), cert. denied, ___ U.S. ___, 113 S.Ct. 355, 121 L.Ed.2d 269 (1992). Toward that end, "[w]e must view the evidence in the light most favorable to the verdict, accepting all credibility choices and reasonable inferences made by the jury." United States v. Carrasco, 830 F.2d 41, 43 (5th Cir. 1987) (footnote omitted). Moreover, "[ i]t is not necessary that the evidence exclude every reasonable hypothesis of innocence or be wholly inconsistent with every conclusion except that of guilt. . . . A jury is free to choose among reasonable constructions of the evidence." United States v. Bell, 678 F.2d 547, 549 (5th Cir. 1982 ), aff'd, 462 U.S. 356, 103 S.Ct. 2398, 76 L.Ed.2d 638 (1983). Finally, " our review remains the same whether the evidence is direct or circumstantial." United States v. Cardenas, 9 F.3d 1139, 1156 (5th Cir. 1993), cert. denied, ___ U.S. ___, 114 S.Ct. 2150, 128 L.Ed.2d 876 (1994 ).
Possession of child pornography was criminalized by 18 U.S.C. 2252(a)(4)(B),
which became effective in 1990. The statute provides that a person commits
an offense if he: (B) knowingly possesses 3 or more books, magazines,
periodicals, films, video tapes, or other matter which contain any visual
depiction that has been mailed, or has been shipped or transported in
interstate or foreign commerce, or which was produced using materials
which have been mailed or so shipped or transported, by any means including
by computer, if--
Possession may be actual or constructive. United States v. Smith, 930 F. 2d 1081, 1085 (5th Cir. 1991). "Constructive possession is the knowing exercise of, or the power or right to exercise dominion or control over the item at issue . . . ." United States v. Perez, 897 F.2d 751, 754 ( 5th Cir.), cert. denied, 498 U.S. 865, 111 S.Ct. 177 (1990). Constructive possession can be ownership, dominion or control over an item or control over the premises in which the item is concealed. United States v. Knezek, 964 F.2d 394, 400 (5th Cir. 1992).
The uncontroverted evidence at trial was that Layne was in possession of three or more magazines that had travelled in interstate commerce and which visually depicted minors engaged in sexually explicit conduct. Forty magazines which depicted minors engaged in explicit sexual conduct were seized at Layne's storage unit. Layne was the sole lessee of the unit and he, not the lessor, controlled the key to it. Layne made continuous lease payments for the unit from the beginning of the lease in 1984 to the execution of the search warrant in March 1992. Layne eventually stipulated that more than three of these magazines had travelled in interstate commerce. Moreover, Layne did not dispute at trial that the magazines photos depicted persons under the age of 18 engaged in sexually explicit conduct.
At trial, Layne's wife testified that Layne had the only key to the
storage unit and that he had possession of the contents until a divorce
decree gave her possession of the material in the storage unit. The
custodian for the storage locker stated that Layne was the only person
who could access the storage unit. Thus, Layne had possession of the
magazines, and the only remaining issue is whether Layne knowingly possessed
Ex Post Facto Clause Violation Argument
Layne argues that since the government did not put on any evidence about whether the magazines had been transported in interstate commerce after 1990, he was prosecuted for conduct undertaken before the effective date of the statute . We disagree.
In United States v. D'Angelo, 819 F.2d 1062 (11th Cir. 1987), the defendant had been convicted of being a felon in possession of a weapon that had travelled in interstate commerce in violation of then 18 U.S.C. 1202(a)(1)(now 18 U.S.C. 922(a)(1)). The defendant argued that his conviction was void under the constitutional prohibition against ex post facto laws because the government failed to prove that his firearm had been transported in interstate commerce and that it came into his possession subsequent to the effective date of section 1202(a). The Eleventh Circuit Court of Appeal rejected this argument. It held that proof of possession after the effective date of the statute of a weapon that had travelled in interstate commerce was sufficient to sustain a conviction regardless of whether the weapon had travelled in interstate commerce after the effective date of the statute. Id. at 1065-66. The Court also stated that possession is a continuing offense, and the evidence showed that the defendant was in possession of the firearm after the effective date of the statute. Id. at 1066.
In United States v. Gillies, 851 F.2d 492 (1st Cir. 1988), cert. denied, 488 U.S. 857, 109 S.Ct. 147, 102 L.Ed.2d 119 (1988), the defendant had been convicted of being a felon in possession of a firearm that had travelled in interstate commerce in violation of 18 U.S.C. 922(a)(1). He argued that the gun had probably travelled in interstate commerce before the enactment of the statute and therefore his conviction violated the Ex Post Facto Clause of the Constitution. The Court rejected the argument, stating that the interstate commerce language in the statute describes what kind of gun felons may not possess and that the act that the law forbids is possession of this firearm after the effective date of the statute. Id. at 495.
Similarly, in this case, 18 U.S.C. 2252(a)(4)(B) forbids the possession after the effective date of the statute of child pornography that has travelled in interstate commerce. The government put on evidence showing that Layne had possessed the material after the effective date of the statute. Therefore, like in Gillies and D'Angelo, Layne's conviction for continuing to possess these magazines after the effective date of the statute does not violate the Ex Post Facto Clause of the Constitution. See also, United States v. Brady, 26 F.3d 282, 291 (2d Cir. 1994) (holding that no violation of the ex post facto clause occurred when the defendant had adequate notice about what conduct is criminally proscribed.
Overly Broad Search Warrants Argument
In regards to the first search warrant issued for the search of Layne's
home, the warrant allowed the seizure of "assorted pornographic videotapes;
assorted pornographic magazines; assorted devices." In the affidavits
explicitly referred to in the warrant, Officer Taber stated that Layne's
adopted children had told him that Layne had showed them the pornographic
material while he sexually assaulted them. The second warrant sought
the search and seizure of "Child pornography; records of victims; drawings;
pictures; computer disks, sexual devices; videotapes; child abuse books;
magazines; audiotapes; and any other obscene or child pornographic material."
We note that in cases where warrants seek to seize material presumptively protected by the First Amendment, the Supreme Court has required that the warrant particularly describe the material to be seized. Marcus v. Search Warrant, 367 U.S. 717, 732, 81 S.Ct. 1708, 1716, 6 L.Ed.2d 1127 (1961). However, this level of particularity is required only in those cases where in the particular setting, First Amendment rights are implicated. See United v. Apker, 705 F.2d 293, 301 (8th Cir. 1983), cert. denied, 465 U.S. 1005, 104 S.Ct. 986, 79 L.Ed.2d 229 (1984); United States v. Aquilar, 883 F.2d 662 (9th Cir. 1989), cert. denied, 498 U.S. 1046, 111 S.Ct. 751, 112 L.Ed.2d 771 (1991). The Supreme Court has held that First Amendment rights in searches are implicated where there is a danger of prior restraint. Maryland v. Macon, 472 U.S. 463, 470, 105 S.Ct. 2778, 2783, 86 L.Ed.2d 370 (1985).
In this case, we find that no First Amendment rights are implicated by this search. The first warrant was issued to seize evidence corroborating a victim's testimony. It was not issued because of the ideas contained in the material. See Stanford v. Texas, 379 U.S. 476, 485 n.16, 85 S.Ct. 506, 13 L.Ed.2d 431 (1965)(holding that books not seized for their ideas would be indistinguishable from any other goods). Thus, the particularity required by Marcus is not warranted in this case.
The second warrant is also sufficiently particular to withstand Layne's attack. In United States v. Hurt, 808 F.2d 707 (9th Cir.), cert. denied, 484 U.S. 816, 108 S.Ct. 69, 98 L.Ed.2d 33 (1987), the Ninth Circuit Court of Appeals found that a search warrant which authorized the search of material depicting children under the age of 16 engaged in sexually explicit conduct" to be particular enough to limit an officer's discretion . 808 F.2d at 708. The term "child pornography" as used in the search warrant in the case sub judice is similar to the warrant in Hurt. Police officers executing either warrant would be sufficiently guided in their discretion to know what items could be seized. The words "need no expert training or experience to clarify their meaning." Id. We therefore find this contention to be without merit.
Passive Acts Argument
In United States v. Singleton, 946 F.2d 23, 27 (5th Cir. 1991), cert denied ___ U.S. ___, 112 S.Ct. 1231, 117 L.Ed.2d 465 (1992), this Court held that knowing possession of a firearm satisfies Lambert's mens rea requirement. In this case, only Layne could be convicted under 18 U.S.C. 2252(a)(4)(B), if he knowingly possessed child pornography. Thus, like in Singleton, knowing possession of illegal material is not a passive crime. Layne's argument is without merit.
Extrinsic Evidence Argument
One of the exhibits featured a woman dressed up as a child wearing pigtails and roller skates, which was referred to by the district court as " simulated child pornography." The other exhibit was a magazine entitled " Chicken" which contained depictions of minor children engaged in sexual conduct. Neither item was charged in the indictment. Both of these items were found in Layne's home. In a thoughtful analysis, the district court found that these two items were relevant to showing that Layne had a knowing interest in the child pornography. The court also excluded evidence of adult pornography found in Layne's home that the prosecution sought to introduce for the same purposes.
We find no error in the district court's decision to admit this extrinsic evidence. In United States v. Garot, 801 F.2d 1241 (10th Cir. 1986), the defendants had been convicted of knowingly receiving child pornography. At trial, the prosecution successfully introduced evidence of child pornography found in the defendant's home. On appeal, the Tenth Circuit affirmed the district court's admission of the extrinsic evidence. Id. at 1247. Initially, it noted that the district court had determined that the evidence was more probative than prejudicial. Id. It then stated that child pornography was essential to the prosecution to prove the scienter of the crime. Id. The Court also noted that the district court had scrutinized the evidence carefully and refused to admit all of the evidence that was offered and that the court gave an appropriate limiting instruction. Id.
Similarly, in this case, the district court found that the evidence was more probative than prejudicial. The court also found that the evidence of the two magazines was necessary for the prosecution to prove the knowledge requirement of 18 U.S.C. 2252. The district court in this case also carefully scrutinized the evidence and admitted only a small part of the evidence offered. The district court also gave an appropriate limiting instruction. Therefore, like in Garot, we find no error in the district court's decision to admit the extrinsic evidence.
Prejudicial Remarks Evidence
At trial, Officer Taber mentioned that he was assigned to the child abuse unit at the time that he participated in the execution of a search warrant at Laynes' home. This statement was mentioned at the very beginning of testimony. It was never mentioned again nor was any reference to child abuse made to the jury. We find no error in the district court's decision not to grant a mistrial.
The second remark occurred when Patricia Nyegaard, the custodian of
the storage facility, was asked whether anyone else had access to Layne's
storage unit and she mentioned temporary orders she had on file from
the Layne's divorce. We do not see how Layne was prejudiced by the remark,
and Layne has not shown how he was prejudiced by the remark. We find
no error in the district court decision not to grant a mistrial.
Unconstitutionality of the Statute Argument
For the foregoing reasons, the judgment of the district court is AFFIRMED .
1. District Judge of the Eastern District of Louisiana, sitting by designation.
2. U.S. Const. Art. I, 9, cl. 3 states: No Bill of Attainder or ex post facto Law shall be passed.
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