NOT RECOMMENDED F OR FUL L -TEXT PUB L I CATI ON File Na me: 12a0183n.06 No. 10-2692 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

UNI TED STATES OF AMERI CA, Plaintiff-Appellee , v. RI CHARD AL L AN Z ORN, Def endant- Appellant. ) ) ) ) ) ) ) ) ) ON APPEAL FROM T HE UNI TED STATES DI STRI CT COURT FOR THE EASTERN DI STRICT OF MI CHI GAN

Be fore : GRI FF I

N and KE THL EDGE, Circuit Judges; and T HAPAR, District J udg e. * KETHL EDGE, Circuit J udg e. Around November 24, 2009, a police office r applied for a

war rant to sear ch America Online’s rec ords for “any acc ounts assoc i at ed with the s cre en name of littl edommeg irl an d y o u rlittledommebitch.” The supporting aff idavit cited a complaint from the National Center for Missing and Ex ploited Children. Acc ording t o t h e aff idavit, the Center had dis cl o s ed i n formation from Yahoo! I nc. that “an acc ount utiliz ing Americ a Online (AOL ) was involved in an incident that co ntained Child Pornog raphy (Possession, Manufa cture , and Di s t ri bution).” The culprit, acc ording to the aff idavit, used “y ourlittledommebitch” an d “L ittleDommeGirl@aol.com” as an AOL userna me and email addre ss. The aff idavit further descr ibed seve ral imag es of c hild pornog raphy that had bee n attache d to the complaint.

The Honora

ble Amul R

. Thapa

r, United States District J udg e for the Easter n District of * Kentucky , sitti ng by

desig nation.No. 10-2692

United States v. Zorn I n addition, the aff

idavit stated that, on November 20, 2009, the police had rec eived two more complain t s from the Center. Acc ording to the aff idavit, “[b] oth complaints had the AOL email addre ss of littl edommeg irl@aol.com,” and eac h new complaint “conta in[ ed] a vi d eo” of child pornog raphy

. Finally , the aff idavit disclosed that the pol ice had subpoenae d Comcast, to which littl edommeg irl’s I P addre ss “belong [ed] ,” and trac ed the acc ount to Richard Z orn at an addre ss in Tay lor, Michig an. A mag istrate judge issued a war rant that authorized the police to sear ch the AOL

acc ount for subscr iber infor mation, including e mails. An investiga tor examined the AOL acc ount. He discovere d that Z orn had “sent videos and pictures of what appea

red to be child pornog raphy from his home computer.” The police then filed

an application for a war

rant to sear ch Z orn’s home. This second application rec ited the alleg ations in the orig inal and added the discovery of child pornog raphy during the sear ch of the AOL acc ount. A mag istrate issued the second war rant. The police executed the war rant and discovere d more child pornog raphy

in Z orn’s home. A fede ral g rand jury ind i ct ed Zo rn for distribution, rec eipt, and possession of child pornog raphy

. He filed a motion to suppress the evidenc e sei z ed fr o m h i s AOL acc ount and his home. The district court denied his motion. Z orn then enter ed a conditional g uilty plea that rese rved his righ t t o ap peal on the suppression issue. At sentenc ing, Z orn reque sted that the district court reduc e his sentenc e to ac count for the eig ht months he had alre ady spent in state custody awa iting sentenc ing for the same conduct. The district court denied Z orn’s reque st and sentenc ed Z orn to 151 mont h s i n p ri s o n . Z orn now appea ls the denial of his suppression motion and the district court’s ref usal to reduc e his sentenc e. -2-No. 10-2692

United States v. Zorn Z orn arg ues t h at the aff

idavits attache d to both sear ch war rants failed to supply probable

cause to be lieve that either his A OL acc ount or his home would contain evidenc e of a crime at the tim e o f t h e sear ch. He first say s that the aff idavits never alleg ed that he had committed a crime. I nstead, he s ay s , t h e affidavits said only that his AOL acc ount was “involved in an incident that contained Child Pornog raphy ” an d t h at eac h of the later two complaints “had [hi s] AOL email addre ss” and “ contained a video” of child pornog raphy

. Z orn insists that these de scriptions of the fac ts c ould ha

ve had innocent explanations: Perhaps he had mere ly rec eived child pornog raphy in spam emails, or may

be he had used his email acc ount to join a gr oup wher e someone happene d to post c hild por

nog raphy

. Cf. United States v . Terry , 522 F.3d 645, 650 ( 6th Cir. 2008) (expressing

conce rn that an aff

idavit did not rule out the possibili ty that the defe ndant innocently rec eived child pornog raphy in a spam email). Thus, Z orn contends that the district c ourt should ha ve suppressed the fruits of the w arr ant. I t is true that the aff

idav its did not specific ally descr ibe how Z orn’s AOL acc ount was “involved” in a child pornog raphy incident. But just as there are only so many way s a car can be “involved in” a car acc ident, there are only so many way s a person’ s email or AOL acc ount c an be “inv o l v ed i n ” a ch i l d p o rn o gra p h y i n ci d en t

— p ar t i cu l ar l y wh en t h e u s er n ame is “y ourlittledommebitch,” see United States v. Shields , 458 F.3d 269, 278 (3d Cir. 2006). The acc ount holder can send or rec eive pornog raphy in an email. See Terry , 522 F.3d at 6 4 8

. Or t h e ac count holder can use his email addr ess or service- provider acc ount to join or acce ss a website that hosts child pornog raphy

. See United States v. Freche tte , 583 F.3d 374, 379–80 (6th Cir. 2009). No matter which of these applies here , the police could have believed, in g ood faith, that a sear ch of the email -3-No. 10-2692

United States v. Zorn

o r service -provider acc ount would reve al evidenc e that someone—whe ther it be Z orn or a s p am emailer —was involved in a crime involving child porn. See Zurcher v. Stanford Dai ly , 436 U.S. 547, 559–6 0 (1978) (holding that the police may sear ch any wher e they have probable cause to believe that they will find evidenc e of a crime, even if the owner of the premises is not a suspect). Either the email acc ount would contain incriminating messag es, or Z orn’s browsing history would

re v ea l h is acc ess to a child pornog raphy website. Thus the war rant’s failure to specify how Z o rn

acc essed c hild por

nog raphy does not justi fy excluding the f

ruits of the wa

rra nt. See U nited States v. Leon , 468 U.S. 897, 922 (1984). Z orn further arg ues t hat t he affidavits failed to supply proba b l e ca u s e because the warrant “does not indicate how Yahoo! rec eived [t he information about Z orn in the first complaint] or wher e t h e i nformation in the other two [] complaints came from.” (Z orn does admit, howeve r, that the Center is “undoubte dly a reliable source” a nd that Yahoo! ’s “r eliability can be presumed.” R. 12 at 9.) He also notes that the aff idavits failed to disclose when the Center rec eived information about t h e child porn incidents or when the incidents occur red. But the police could have rea sonabl y conclude d that the aff

idavits did disclose how Z orn’s involvement in child p o rn o gra p h y was exposed. The aff

idavits say that Yahoo! repor ted an incident involving Z orn’s AOL userna me and email addre ss. That information sug g ests either that Yahoo! discovere d an email sent from Z orn’s AOL email to a Yahoo! email user or that Yahoo! monitored Z orn’s usag e of a website that Yahoo! hosted. As for the timeliness of the complaints, it is was no secr et to any one in 2009 that the digital world has a “‘long memory ,”’ even for files users try to delete. S ee Freche tte , 583 F.3d at 381 (quoting United States v. Gourde , 440 F.3d 1065, 1071 (9th Cir. 2006) (en banc) ); United States v. -4-No. 10-2692

United States v. Zorn Truit t , 521 F.2d 1174, 1177 (6th Cir. 1975) (rely i n g on “common knowledge ” to supply probable

cause ). Thus, the police relied on the war rants in g ood faith. Th e d i strict court corr ectly denied Z orn’s suppre ssion moti on. See Leon , 468 U.S. at 922. Finally , Z orn challeng es the district court’s ref usal to reduc e his sentenc e for the time he had alre ady spent in state custody awa iting a sentenc e in s t at e court for the same conduct. He cites section 5G1.3(b) of the Sentencing Guidelines, which states that if “a term of imprisonment resulted from another offe nse that is rele vant conduct t o t h e instant offe nse . . . [and is] the basis for an incre ase in the offe nse level for the instant offe nse,” then the district could should order its sentenc e to run concur

rently with the other and “adjust the sentenc e for any period of imprisonment alre ady

s er v ed o n the undischarg ed term of imprisonment.” Id. § (b)( 1), (2). The problem with Zo rn ’s arg ument, howeve r, is tha t § 5G1.3(b) only applies if the fede ral court is in a position to order that the fede ral sentenc e run concur rently with the state sentenc e, see § 5G1.3(b)( 2), and the defe ndant is subject t o a “te rm of imprisonment [t hat] resulted from another offense.” But a fede ral court is power less to or der that its sentence r un concur rently with a state sentenc e if the state court has not y et sentenc ed the defe ndant. See United States v. Quintero , 157 F.3d 1038, 1039–41, 1039 n.1 (6th Cir. 1998); see also United States v. Custard , No. 99-6239, 2000 WL 1290338, at *2 (6th Cir. Sept. 5, 2000). Moreove r, a fede ral defe ndant who has not y et rec eived a sentenc e in state court is not y et subject to a “ter

m of imprisonment [t hat] resulted from another offe nse.” See United State v. Rollins , 552 F.3d 739, 742 (8th Cir. 2009) (citing the defini t i o n o f “ter m of imprisonment” in 8 U.S.C. § 1101(a) (48)( B) ); cf. K

ing v. United States , No. 96-2515, 1997 WL 580776, at *2 (6th C ir. Sept. 18, 1997) (holding that an older version of § 5G1.3 did not apply wher e the state sentenc e had “y et- -5-No. 10-2692

United States v. Zorn to-be-imposed” ). Neither of those circ umstances was prese nt here , so § 5G1.3(b) was inapplicable, and the district cour

t corre ctly

declined to a djust Zor

n’s sentenc e. The district cour

t’s judgme nt is affirmed.

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