* District Judge of the Eastern District of Louisiana,

sitting by designation.

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 a2

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 Rosenb e rg,

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 trave lled 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

o f review for sufficiency of the evidence challenges "gives f ull3

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." J ackson

v. Virginia

, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560

(1979).

A sufficienc y 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).

T oward that end, "[w]e must view the evidence in the light most

favor able to the verdict, accepting all credibility choices and

reasonable inferences made by the j ury." U nited States v.

Carrasco

, 830 F.2d 41, 43 (5th Cir. 1987) (footnote omitted).

Moreover, "[i]t is not necessary that the evidenc e exclude every

reasonable hypothesis of innocence or be wholly inconsistent with

every conclusion except that of guilt. . . . A jury is free to

ch oose among reasonable constructions of the evidence." U nited

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 1 990. The statute

provides that a person commits an offense if he:4 (B) knowingly possesses 3 or more books,

magazines, periodicals, films, video tapes, or

other matter which contain any visual

depictio n 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

i nvolves 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. U nited 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

. . . ." U nited States v.

Perez

, 897 F.2d 751, 754 (5 th Cir.), c ert. 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. U nited Stat es v. Knezek , 964 F.2d

394, 400 (5th Cir. 1992).

The u ncontroverted 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

uni t. Layne was the sole lessee of the unit and he, not the

lessor, controlled the key to it. Layne made continuous lease

payments fo r the unit from the beginning of the lease in 1984 to

the execution of the search warrant in March 1992. Layne5

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 un it 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 Europea n 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 p roving that Layne knowingly

possessed child pornography in the storage facility. This evidence

provided a reasonable basis for the jury to f ind that Layne knew

that the magazines in the storage unit were visual depictions of

minor s 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 to1 U.S. Const. Art. I, § 9, cl. 3 states:

No Bill of Attainder or ex post facto Law shall be

passed.

6 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. C ollins 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) becam e 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 pro secuted

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)). The7

defendant argued that his co nviction 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 r ejected 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 t o sustain a

conviction regardless of whether the weapon had trave lled 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. § 92 2(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 495.8

Similarly, in this case, 18 U.S.C. § 2252(a)(4)(B) forbids the

possession after the effective date of the statute of child

pornogr aphy that has travelled in interstate commerce. The

government put on evidence showing that Layne had p ossessed 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 ef fective date of the statute

does not violate the Ex Post Facto Clause of the Constitution. S ee

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 defe ndant had adequate notice about what conduct is

criminally proscribed.

Overly Broad Search Warrants Argument

Layne contends that the searc h warrants were unconstitutionally overly broad in describing the items to be searched for

and seized. The Fourth Amendment prohibits general warrants

authorizing officials to rum mage 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." I d. at 560. This test for particularity may be made with9

supporting affidavits, if the warrant expressly refers to the

affidavits. Id. at 560-61. However, in circumstances where

detailed particularity is impossible, ge n eric language, if it

particularizes the types of items to be seized, would be

permissible. U nited 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 a llowed 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

tha t 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; dr awings;

pictures; computer disks, sexual devices; videotapes; child abuse

books; magazi nes; 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.10

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. S ee

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), c ert. 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. M aryland 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 vic tim's testimony. It was not issued

because of the ideas containe d in the material

. S ee Stanford v.

Texas

, 379 U.S . 476, 485 n.16, 85 S.Ct. 506, 13 L.Ed.2d 431

(1965)(holding that books not se ized 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 search11

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 war rant in H urt

. 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. L ambert

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), ce rt denied

___ U.S.

___, 112 S.Ct. 1231, 117 L.Ed.2d 465

(1992), this Court held that know ing 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 S ingleton

, kn owing12

possession of illegal material is not a passive crime. Layne's

argument is without merit.

Extrinsic Evidence Argument

Layne contends that t he 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. I d. 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 ex hibits 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 adult13

pornography found in Layne's home that the prosecution so ught to

introduce for the same purposes.

We find no error in the district court's decision to admit

this extrinsic evidence. In U nited 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 h ome. On appeal, the Tenth Circuit affirmed the

district court's admission of the extrinsic evidence. I d. at 1247.

Initially, it noted that the district court had determined that the

evidence was more probative than prejudicial. I d. It then stated

that child pornography was essential to the prosecution to prove

the scienter of the crime. I d. 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 Evidence14

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 h ad 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. U nited 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 pre j udicial 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 he15

was prejudiced by the remark. We find no error in the district

court decision not to grant a mistrial.

Layne a rgues 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 el ement of the crime.

Layne has admitted t hat he did not raise this argument in the

district court; therefore this argument is waived. S ee United

States v. Burian

, 19 F.3d 188, 190 n.2 (5th Cir. 1994). Moreover,

the Supreme Court has held th at 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.