U.S. v. Layne

• Decision Date: 11 January 1995
• Docket Number: No. 93-2807,93-2807
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. John David LAYNE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 127

43 F.3d 127

UNITED STATES of America, Plaintiff-Appellee, v. John David LAYNE, Defendant-Appellant.

No. 93-2807.

United States Court of Appeals Fifth Circuit.

Jan. 11, 1995.

H. Michael Sokolow, Asst. Federal Public Defender, Roland E. Dahlin, II, Federal Public Defender, Houston, TX, for appellant.

Richard Smith, B. Janice Ellington, Paula C. Offenhauser, Asst. U.S. Attys., Katherine L. Haden, Gaynell Griffin Jones, U.S. Atty., Houston, TX, for appellee.

Appeal from the United States District Court for the Southern District of Texas.

Before JONES and STEWART, Circuit Judges, and DUPLANTIER ^*, District Judge.

STEWART, Circuit Judge:

John David Layne appeals his conviction under 18 U.S.C. Sec. 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 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. Sec. 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 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. Sec. 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--

(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, 112 L.Ed.2d 141 (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 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 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. Sec. 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. Sec. 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.App. Sec. 1202(a)(1) (now 18 U.S.C. Sec. 922(J)(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...