U.S. v. Villasenor

• Decision Date: 19 December 2000
• Docket Number: No. 99-50399,99-50399
• Citation: 236 F.3d 220
• Parties: (5th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JAVIER RODRIQUEZ VILLASENOR, Defendant-Appellant
• Court: U.S. Court of Appeals — Fifth Circuit

Page 220

236 F.3d 220 (5th Cir. 2000)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JAVIER RODRIQUEZ VILLASENOR, Defendant-Appellant.

No. 99-50399

IN THE UNITED STATES COURT OF APPEALS, FIFTH CIRCUIT

December 19, 2000

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

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

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, 236 F.3d 225 (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 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 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. 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...