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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
1Judge Jolly dissented in Kallestad.
2See 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
3Id. (quoting United States v. Pierre, 958 F.2d 1034, 1310
(5th Cir. 1992)(en banc)).
4United States v. De Leon, 170 F.3d 494, 496 (5th Cir. 1999).
5See United States v. Layne, 43 F.3d 127, 131 (5th Cir. 1995).
4

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

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
7See Pub. L. 105-314, Title II, §§ 202(a), 203(a), Oct. 30,
1998, 112 Stat. 2977, 2978.
6

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;
8636 F. Supp. 828, 832 (S.D. Cal. 1986), aff'd sub. nom.
United States v. Wiegand, 812 F.2d 1239 (9th Cir. 1987).
9834 F.2d 442, 448 (5th Cir. 1987).
7

(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
10Rubio, 834 F.2d at 448.
8

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.
9