*2 JOLLY, Before HIGGINBOTHAM GARZA, Judges. EMILIO M. Circuit I PER CURIAM: four first ask whether 18 U.S.C. discovered Police officers 2252(a)(4)(B) nude, during authority a consent exceeds the female minor July Congress home on under the Commerce Clause search Villasenor’s *3 photographs simple possession photo- was a to the of girl applied in the 1998. The passed with another not suspected, along graphs which have themselves young girl game set from in a Nintendo interstate commerce. girl, stealing of called the home. Villasenor Villasenor’s in question negatively answer this We theft, but he decided not police about Kallestad, 98-51089, No. States v. United prosecuted. The girls to seek to have (5th Cir.2000).1 236 F.3d found investigated the theft who officer he decided to ask Vil- girls, the two II por- of child possession his lasenor about Dur- talking girls. to the nography after next ask if the evidence is insuffi- search, officers discovered consent ing the posses- a conviction for the cient to sustain and a a nude adult woman photograph a mi- sexually explicit depictions of sion of in Villasenor’s bedroom. Polaroid camera nors. They search. continued Officers their contends that the evi Villasenor in a car they looking were found what support his con dence was insufficient photo- yard: five Polaroid in Villasenor’s possess he did not or con viction because compartment, four of glove in the graphs in possess photos question. structively girls of one which pos proof knowing requires The offense about the theft of officer had talked with pho prohibited items. session picture The fifth was of the Nintendo set. apparently in an abandoned tos were found himself, subject’s exposing man but the a car, to a yard, belonged in Villasenor’s photograph. in the face could not be seen neighbor. photos were found The car which neighbor. to a belonged judgment for a Villasenor moved govern at the close of the acquittal possession charged was with Villasenor case, he did not renew the ment’s but photographs involving the of three or more As a at the close of the evidence. motion minors, under exploitation of sexual result, sufficiency based on the his claims 2252(a)(4)(B). Kim- § At his trial U.S.C. plain are reviewable for of the evidence berly Montgomery, the adult woman plain error stan only.2 Under the error photo whose nude was found Villase- if dard, only a conviction can be reversed bedroom, nor’s testified that she had seen jus miscarriage of there was a “manifest photos in the in Villasenor’s home girl tice,” if no would occur there is which photos passed and had seen the around “ guilt the defendant’s ‘the evidence of friends his home. among Villasenor’s key a element of the offense evidence on stipulated that the camera and Villasenor would tenuous that a conviction be was so film elsewhere were manufactured ”3 shocking.’ shipped in commerce. interstate possession is “the Constructive was convicted and sentenced Villasenor ownership, dominion or control over imprisonment to 60 months to be followed or control itself or dominion by three-year supervised illegal a term of release. item the item is premises which timely appeal. He filed a notice of over the Pierre, 958 F.2d Judge Jolly (quoting dissented in Kallestad. 3.Id. United States (5th Cir.1992)(en banc)). McCarty, 36 F.3d 2. See United States v. (5th Cir.1994). possession found.”4 Constructive is suffi- government We have held that the failed 2252(a)(4)(B).5 for an cient offense under possession constructive of cocaine found in glove compartment a car’s where argues that there was insuffi- defendant’s, the car was not the and there cient evidence to show that he proof no he knew the cocaine was in constructively possessed photos be- glove compartment or had ever han- (1) cause the car in which the Here, dled the cocaine.6 there was evi- (2) belonged neighbor; found to a his son dence Villasenor had pho- handled the (3) him; lived the home with other tos. From the presented, evidence (4) home; persons visited his jury could infer that were taken is wearing gang-related t- bedroom, in Villasenor’s to which only he shirt; show the girl *4 key, had a and that Villasenor himself was cash, holding which is inconsistent with the subject the of one of the found. A theory developed at trial that .Villasenor witness photos testified she saw the gave her in the Nintendo set exchange for party distributed at a in Villasenor’s home. posing nude. There was evidence of Villasenor’s know- The government points out that the Po- ing possession, and that evidence was not laroid camera was found in Villasenor’s so produce tenuous as to a miscarriage of locked bedroom and that Villasenor told justice. police only key he had a to the bedroom. photos The girl of the had in items Ill background that in were found Villasenor’s bedroom, which would tend to show that Do two of photographs the four not de- photos taken in were Villasenor’s bed- pict a minor engaging sexually explicit room. The film contained in the Polaroid conduct, so that the evidence is insufficient when it was found Villasenor’s bedroom support possession to of three such de- had the same lot photos number the five pictions as the statute requires? found in the vehicle in Villasenor’s back Despite parties’ disagreement, yard. Among photos girl police it is clear that pos Villasenor must have himself, photo found a of a man exposing sessed sexually explicit three or more de buckle, necklace, whose belt ring and were pictions and that one is not sufficient. the same by as those worn Villasenor on 2252(a)(4) Section was amended October arrested, day he jury was and the 30, 1998, possess to make it an to offense given these inspect compari- items to sexually one explicit depiction aof minor.7 son photo. with those in the The car in However, Villasenor’s conduct was com photos unlocked, which the were found was 30, 1998, pleted by July the date of his and, although the car and its contents arrest, so it is covered a prior version dirty, photos were clean. Final- statute, of the it making an offense to ly, Kimberly Montgomery, the adult whose possess three sexually explicit or more de photo nude was found in Villasenor’s bed- pictions of minors. His conviction can be room, party had been at a at Villasenor’s upheld only if government proved home at which photos young girl he had three or more or sexually explicit passed among guests. around depictions young girl. of the The evidence was sufficient possessed that Villasenor or constructively disputes whether two of photos of the young girl. the four sexually explicit. found are Leon, 494, Littrell, 828, 4. United. v. De States 170 F.3d 6. United States v. 574 F.2d (5th 1999). (5th 1978). Cir. Cir. 105-314, Layne, II, 5. See United 202(a), States v. 43 F.3d §§ 7. See Pub.L. Title (5th 1995). 203(a), 30, 1998, Cir. Oct. 112 Slat. (6)whether in- wearing depiction the visual is girl show the of the Some down, designed tended or to elicit a sexual the waist nude from a t-shirt but response in the viewer.10 legs with her lying or on bed seated photos, In other she is slightly separated. descriptions of the fit within The and a bra similar reclin- wearing panties of the the definition of lascivious exhibition Sexually on the bed. kneeling poses ing or area, genital pubic considering or the Dost 2256(2)(E) §at conduct is defined explicit high- factors. The would tend to gen- exhibition of the to include “lascivious pubic 15-year-old girl area of a light the any person.” area of pubic itals or leopard panties a black dressed skin and §to Statutory *5 clothing ...” Whether the through ble plain applies error standard also to is therefore not dis- wearing panties persuaded error. are this claim of positive. sup- evidence to that there was sufficient question whether the de On possessing conviction of port Villasenor’s gen the “lascivious exhibition of the picted prohibited photos. more There three or area,” in pubic the district court itals or sexually was evidence jury using the factors outlined structed by the statute and that explicit required v. Dost.8 This court United States is not so tenuous as to create a evidence v. adopted those factors United States miscarriage justice. are:
Rubio.9 The factors sum, presents as-ap- an In (1) to the statute that has been point plied challenge whether the focal of the visual or United States Kallestad.
depiction genitalia is of child’s resolved standard, area; there was plain Under the error pubic that he con- sufficient evidence (2) setting the ... visual is sex- whether and that structively i.e., in ually suggestive, place or sexually explicit. pose generally associated with sexual AFFIRMED. activity; (3) depicted child is whether the JOLLY, Judge, E. GRADY Circuit inappropriate pose unnatural or dissenting: attire, considering age respectfully I dissent for the reasons child; v. Kallestad. my dissent USA stated (4) fully partially whether the child is nude; clothed or depiction sug- whether the visual willingness
gests coyness sexual engage activity; in sexual Cir.1987). (5th 9. (S.D.Cal.1986), F.2d F.Supp. 8. 636 aff'd Wiegand, 812 F.2d sub. nom. United States v. Rubio, (9th Cir.1987). F.2d at 448. Notes Historical in a and nude from the waist bra or t-shirt 103-322, Pub.L. which include 16003 of down; a bed. lying, sitting, kneeling on “(a) .... it is the provide that Declaration sexually suggestive, high- This would be scope Congress intent of that — pubic setting in a lighting the area pubic area’ in genitals ‘exhibition response attire intended to elicit a sexual 2256(2)(E), in the definition of sex- section depictions viewer. The conduct,’ explicit is not limited to ually posed sug- would tend to so dressed or exhibitions which nude exhibitions willingness engage in sexual ac- gest a of those areas were diseerna- the outlines tivity.