United States v. Villasenor

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 99-50399

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

versus

JAVIER RODRIQUEZ VILLASENOR,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of Texas

December 19, 2000

Before JOLLY, HIGGINBOTHAM, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:

Police officers discovered four pictures of a nude, minor

female during a consent search of Villasenor's home on July 30,

1998. The girl in the photographs was a young girl suspected,

along with another girl, of stealing a Nintendo game set from

Villasenor's home. Villasenor called the police about the theft,

but he decided not to seek to have the girls prosecuted. The

officer who investigated the theft found the two girls, and he

decided to ask Villasenor about his possession of child pornography

after talking to the girls. During the consent search, officers
discovered a photograph of a nude adult woman and a Polaroid camera

in Villasenor's bedroom.

Officers continued their search. They found what they were

looking for in a car in Villasenor's yard: five Polaroid

photographs in the glove compartment, four of which were pictures

of one of the girls the officer had talked with about the theft of

the Nintendo set. The fifth picture was of a man exposing himself,

but the subject's face could not be seen in the photograph. The

car in which the photos were found belonged to a neighbor.

Villasenor was charged with possession of three or more

photographs involving the sexual exploitation of minors, under 18

U.S.C. § 2252(a)(4)(B). At his trial Kimberly Montgomery, the

adult woman whose nude photo was found in Villasenor's bedroom,

testified that she had seen the girl in the photos in Villasenor's

home and had seen the photos passed around among Villasenor's

friends in his home. Villasenor stipulated that the camera and

film were manufactured elsewhere and shipped in interstate

commerce.

Villasenor was convicted and sentenced to 60 months

imprisonment to be followed by a three-year term of supervised

release. He timely filed a notice of appeal.

I

2
 We first ask whether 18 U.S.C. § 2252(a)(4)(B) exceeds the

authority of Congress under the Commerce Clause as applied to the

simple possession of photographs which have not themselves passed

in interstate commerce.

We answer this question negatively in United States v.

Kallestad, No. 98-51089, ___ F.3d ___ (5th Cir. 2000).1

II

We next ask if the evidence is insufficient to sustain a

conviction for the possession of sexually explicit depictions of

minors.

Villasenor contends that the evidence was insufficient to

support his conviction because he did not possess or constructively

possess the photos in question. The offense requires proof of

knowing possession of the prohibited items. The photos were found

in an apparently abandoned car, in Villasenor's yard, that belonged

to a neighbor.

Villasenor moved for a judgment of acquittal at the close of

the government's case, but he did not renew the motion at the close

of the evidence. As a result, his claims based on the sufficiency

of the evidence are reviewable for plain error only.2 Under the

plain error standard, a conviction can be reversed only if there

1
Judge Jolly dissented in Kallestad.
2
See United States v. McCarty, 36 F.3d 1349, 1358 (5th Cir.
1994).

3
was a "manifest miscarriage of justice," which would occur if there

is no evidence of the defendant's guilt or "'the evidence on a key

element of the offense was so tenuous that a conviction would be

shocking.'"3

Constructive possession is "the ownership, dominion or control

over an illegal item itself or dominion or control over the

premises in which the item is found."4 Constructive possession is

sufficient for an offense under § 2252(a)(4)(B).5

Villasenor argues that there was insufficient evidence to show

that he possessed or constructively possessed the photos because

(1) the car in which the photos were found belonged to a neighbor;

(2) his son lived in the home with him; (3) other persons visited

his home; (4) the girl in the photos is wearing a gang-related t-

shirt; and (5) the photos show the girl holding cash, which is

inconsistent with the theory developed at trial that Villasenor

gave her the Nintendo set in exchange for posing nude.

The government points out that the Polaroid camera was found

in Villasenor's locked bedroom and that Villasenor told police only

he had a key to the bedroom. The photos of the girl had items in

the background that were found in Villasenor's bedroom, which would

3
Id. (quoting United States v. Pierre, 958 F.2d 1034, 1310
(5th Cir. 1992)(en banc)).
4
United States v. De Leon, 170 F.3d 494, 496 (5th Cir. 1999).

5
See United States v. Layne, 43 F.3d 127, 131 (5th Cir. 1995).

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tend to show that the photos were taken in Villasenor's bedroom.

The film contained in the Polaroid when it was found in

Villasenor's bedroom had the same lot number as the five photos

found in the vehicle in Villasenor's back yard. Among the photos

of the girl police found a photo of a man exposing himself, whose

belt buckle, necklace, and ring were the same as those worn by

Villasenor on the day he was arrested, and the jury was given these

items to inspect for comparison with those in the photo. The car

in which the photos were found was unlocked, and, although the car

and its contents were dirty, the photos were clean. Finally,

Kimberly Montgomery, the adult whose nude photo was found in

Villasenor's bedroom, had been at a party at Villasenor's home at

which the photos of the young girl were passed around among guests.

The evidence was sufficient to prove that Villasenor possessed

or constructively possessed the photos of the young girl. We have

held that the government failed to prove constructive possession of

cocaine for in a car’s glove compartment where the car was not the

defendant's, and there was no proof he knew the cocaine was in the

glove compartment or had ever handled the cocaine.6 Here, there

was evidence that Villasenor had handled the photos. From the

evidence presented, the jury could infer that the photos were taken

in Villasenor's bedroom, to which only he had a key, and that

Villasenor himself was the subject of one of the pictures found.

6
United States v. Littrell, 574 F.2d 828, 834 (5th Cir. 1978).

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A witness testified that she saw the photos distributed at a party

in Villasenor's home. There was evidence of Villasenor's knowing

possession, and that evidence was not so tenuous as to produce a

miscarriage of justice.

III

Do two of the four photographs not depict a minor engaging in

sexually explicit conduct, so that the evidence is insufficient to

support possession of three such depictions as the statute

requires?

Despite the parties’ disagreement, it is clear that Villasenor

must have possessed three or more sexually explicit depictions and

that one is not sufficient. Section 2252(a)(4) was amended October

30, 1998, to make it an offense to possess one sexually explicit

depiction of a minor.7 However, Villasenor's conduct was completed

by July 30, 1998, the date of his arrest, so it is covered by a

prior version of the statute, making it an offense to possess three

or more sexually explicit depictions of minors. His conviction can

be upheld only if the government proved that he had three or more

or sexually explicit depictions of the young girl.

Villasenor disputes whether two of the four photos found are

sexually explicit. Some of the photos show the girl wearing a t-

shirt but nude from the waist down, seated or lying on a bed with

her legs slightly separated. In other photos, she is wearing

7
See Pub. L. 105-314, Title II, §§ 202(a), 203(a), Oct. 30,
1998, 112 Stat. 2977, 2978.

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panties and a bra in similar reclining or kneeling poses on the

bed. Sexually explicit conduct is defined at § 2256(2)(E) to

include "lascivious exhibition of the genitals or pubic area of any

person." The Historical and Statutory Notes to § 2252 include §

16003 of Pub. L. 103-322, which provide that "(a) Declaration. . .

. it is the intent of Congress that – (1) the scope of 'exhibition

of the genitals or pubic area' in section 2256(2)(E), in the

definition of sexually explicit conduct,' is not limited to nude

exhibitions or exhibitions in which the outlines of those areas

were discernable through clothing. . ." Whether the girl was

wearing panties is therefore not dispositive.

On the question whether the photos depicted the "lascivious

exhibition of the genitals or pubic area," the district court

instructed the jury using the factors outlined in United States v.

Dost.8 This court adopted those factors in United States v. Rubio.9

The factors are:

(1) whether the focal point of the visual
depiction is of the child's genitalia or pubic
area;

(2) whether the ... visual setting is sexually
suggestive, i.e., in a place or pose generally
associated with sexual activity;

8
636 F. Supp. 828, 832 (S.D. Cal. 1986), aff'd sub. nom.
United States v. Wiegand, 812 F.2d 1239 (9th Cir. 1987).
9
834 F.2d 442, 448 (5th Cir. 1987).

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 (3) whether the child is depicted in an unnatural
pose or in inappropriate attire, considering
the age of the child;

(4) whether the child is fully or partially
clothed or nude;

(5) whether the visual depiction suggests sexual
coyness or willingness to engage in sexual
activity;

(6) whether the visual depiction is intended or
designed to elicit a sexual response in the
viewer.10

The descriptions of the photos fit within the definition of

lascivious exhibition of the genital or pubic area, considering the

Dost factors. The photos would tend to highlight the pubic area of

a 15-year-old girl dressed in leopard skin panties and a black bra

or in a t-shirt and nude from the waist down; lying, sitting, or

kneeling on a bed. This would be sexually suggestive, highlighting

the pubic area in a setting and attire intended to elicit a sexual

response in the viewer. The depictions of the girl so dressed and

posed would tend to suggest a willingness to engage in sexual

activity.

The plain error standard also applies to this claim of error.

We are persuaded that there was sufficient evidence to support

Villasenor’s conviction of possessing three or more prohibited

photos. There was evidence that the photos were sexually explicit

10
Rubio, 834 F.2d at 448.

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as required by the statute and that evidence is not so tenuous as

to create a miscarriage of justice.

In sum, Villasenor presents an as-applied challenge to the

statute that has been resolved by United States v. Kallestad.

Under the plain error standard, there was sufficient evidence to

prove that he constructively possessed the photos and that the

photos were sexually explicit.

AFFIRMED.

Judge Jolly dissenting: I respectfully dissent for the reasons

stated in my dissent in USA v. Kallestad.

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