IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________________
No. 93-2807
__________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOHN DAVID LAYNE,
Defendant-Appellant.
_______________________________________________
Appeal from the United States District Court
for the Southern District of Texas
(CR-H-93-41-ALL)
_______________________________________________
(January 11, 1995)
Before JONES and STEWART, Circuit Judges, and DUPLANTIER*, 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.
BACKGROUND
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
*
District Judge of the Eastern District of Louisiana,
sitting by designation.
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.
DISCUSSION
Sufficiency of the Evidence Argument
Layne contends that there was insufficient evidence to convict
him. It is the jury's "unique role" to judge the credibility and
evaluate the demeanor of witnesses and to decide how much weight
should be given to their testimony. United States v. Higdon, 832
F.2d 312, 315 (5th Cir. 1987), cert. denied, 484 U.S. 1075, 108
S.Ct. 1051, 98 L.Ed.2d 1013 (1988). Our resulting narrow standard
of review for sufficiency of the evidence challenges "gives full
2
play to the responsibility of the trier of fact fairly to resolve
conflicts in the testimony, to weigh the evidence, and to draw
reasonable inferences from basic facts to ultimate facts." Jackson
v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560
(1979).
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:
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(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--
(i) the producing of such visual depiction
involves the use of a minor engaging in
sexually explicit conduct; and
(ii) such visual depiction is of such conduct.
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
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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 the magazines.
Officer Bill Wedgeworth testified that Layne had told him that
he had some European pornography at the storage facility. He also
stated that European pornography was a euphemism for child
pornography. Also admitted at trial, but not charged in the
indictment, were the two magazines seized in Layne's home. One
magazine included depictions of minors engaged in sexually explicit
conduct and the other a depiction of a woman dressed as a minor
engaged in sexually explicit conduct. These two magazines were
admitted for the express purpose of proving that Layne knowingly
possessed child pornography in the storage facility. This evidence
provided a reasonable basis for the jury to find that Layne knew
that the magazines in the storage unit were visual depictions of
minors and that he had an interest in child pornography. The
magazines and Layne's statement that he had European pornography in
the storage unit provided a reasonable basis for the jury to
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conclude that Layne knowingly possessed visual depictions of minors
engaged in explicit sexual conduct in violation of the statute. We
therefore find this contention to be without merit.
Ex Post Facto Clause Violation Argument
Layne contends that his prosecution under 18 U.S.C. § 2254
violated the Ex Post Facto Clause of the United States
Constitution.1 The Ex Post Facto Clause of the Constitution is
violated if a law: (1) punishes as a crime an act previously
committed which was innocent when done; (2) makes more burdensome
the punishment for a crime after its commission or (3) deprives one
charged with a crime of any defense available according to the law
at the time when the act was committed. Collins v. Youngblood, 497
U.S. 37, 52, 110 S.Ct. 2715, 2724, 111 L.Ed.2d 30 (1990). The
provisions of 18 U.S.C. § 2252(a)(4)(B) became effective on
November 29, 1990. 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
1
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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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.
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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
Layne contends that the search warrants were unconstitu-
tionally overly broad in describing the items to be searched for
and seized. The Fourth Amendment prohibits general warrants
authorizing officials to rummage through a person's possessions
looking for any evidence of a crime. United States v. Peden, 891
F.2d 514, 517 (5th Cir. 1989). A warrant must particularly
describe the place to be searched and the person or things to be
seized. United States v. Beaumont, 972 F.2d 553, 560 (5th Cir.
1992), cert. denied, ___U.S.___, 113 S.Ct. 2384, 123 L.Ed. 450
(1993). To test whether the particularity requirement is satisfied
requires the court to "ask if the description in the warrant would
permit an executing officer to reasonably know what items are to be
seized." Id. at 560. This test for particularity may be made with
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supporting affidavits, if the warrant expressly refers to the
affidavits. Id. at 560-61. However, in circumstances where
detailed particularity is impossible, generic language, if it
particularizes the types of items to be seized, would be
permissible. United States v. Webster, 734 F.2d 1048, 1055 (5th
Cir. 1984), cert. denied sub nom, Hoskins v. United States, 469
U.S. 1073, 105 S.Ct. 565 83 L.Ed.2d 506 (1984).
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."
The first warrant was sufficiently particular to limit the
officers' discretion. This warrant was executed to search for
evidence of the alleged sexual assaults on Layne's children. The
officers relied on the best information which had been provided to
them by the children to specify what they would be searching for.
Under these circumstances, the information in the warrant was
sufficiently particular to limit the officers' discretion.
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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
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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
Layne also contends that he is being convicted of a purely
passive act in violation of the Due Process Clause. He claims that
unless the government can prove that he placed the magazines into
storage after the date that the statute became effective, he is
being punished for a passive crime about which he had no notice.
Prosecution of a citizen who is unaware of any wrongdoing, for
"wholly passive conduct" violates the Due Process Clause. Lambert
v. California, 355 U.S. 225, 228-30 18 S.Ct. 240, 2 L.Ed.2d 228
(1957).
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
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possession of illegal material is not a passive crime. Layne's
argument is without merit.
Extrinsic Evidence Argument
Layne contends that the district court erred in admitting
extrinsic evidence in the form of two pornographic magazines found
in Layne's home. Under Fed. R. Evid. 404(b), evidence of other
crimes, wrongs or acts cannot be used to show that the defendant
acted in conformity therewith. Such evidence is admissible where
relevant to show intent knowledge, plan, motive, identity and
absence of mistake. Id. Prior to admitting extrinsic evidence,
the district court must conduct a two-part test and determine: (1)
whether the extrinsic evidence is relevant to an issue other than
the defendant's character; and (2) if so whether the probative
value of the evidence is not substantially outweighed by its undue
prejudice. United States v. Beechum, 582 F.2d 898, 911 (5th Cir.
1978), cert. denied, 440 U.S. 920, 99 S.Ct. 1244, 59 L.Ed.2d 472
(1979).
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
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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
13
Layne contends that the district court erred in its refusal to
grant a mistrial because: (1) Officer Taber testified that he was
with a child abuse unit when he executed the warrants. (2) The
custodian of the storage units mentioned that she had a copy of
temporary orders in connection with the Laynes' divorce. A
district court's refusal to grant a mistrial will be reversed only
for an abuse of discretion. United States v. Limones, 8 F.3d 1004
(5th Cir. 1993), cert. denied, ___ U.S. ___, 114 S.Ct. 1562, 128
L.Ed.2d 209 (1994). Where, as here, the motion for a mistrial
involves the presentation of prejudicial testimony before the jury,
"a new trial is required only if there is a significant
possibility' that the prejudicial evidence had a 'substantial
impact' upon the jury verdict, viewed in light of the entire
record. Id. at 1007.
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
14
was prejudiced by the remark. We find no error in the district
court decision not to grant a mistrial.
Layne argues the cumulative effects of these remarks should
give cause for a mistrial. None of the remarks were intentionally
made and they bear no relationship to each other, indicating a
cumulative effect. The fleeting nature of the remarks and the
considerable restraints that the district court exercised over the
testimony convinces us that the district court did not err in
refusing to grant a mistrial because of the cumulative effect of
these remarks.
Unconstitutionality of the Statute Argument
Layne contends that 18 U.S.C. § 2252 is unconstitutional on
its face because the statute does not require the offender to know
of the minority of the performers as an element of the crime.
Layne has admitted that he did not raise this argument in the
district court; therefore this argument is waived. See United
States v. Burian, 19 F.3d 188, 190 n.2 (5th Cir. 1994). Moreover,
the Supreme Court has held that the use of the term knowingly in
the statute extends to knowledge of the minority of the performer.
United States v. X-Citement Video, Inc., 115 S.Ct. 464, 472 (1994).
Thus, this contention would be without merit even if it had not
been waived.
CONCLUSION
For the foregoing reasons, the judgment of the district court
is AFFIRMED.
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