                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 12a0183n.06

                                         No. 10-2692

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT
                                                                                         FILED
                                                                                  Feb 14, 2012
UNITED STATES OF AMERICA,                              )                    LEONARD GREEN, Clerk
                                                       )
       Plaintiff-Appellee,                             )
                                                       )    ON APPEAL FROM THE UNITED
v.                                                     )    STATES DISTRICT COURT FOR
                                                       )    THE EASTERN DISTRICT OF
RICHARD ALLAN ZORN,                                    )    MICHIGAN
                                                       )
       Defendant-Appellant.                            )



       Before: GRIFFIN and KETHLEDGE, Circuit Judges; and THAPAR, District Judge.*

       KETHLEDGE, Circuit Judge. Around November 24, 2009, a police officer applied for a

warrant to search America Online’s records for “any accounts associated with the screen name of

littledommegirl and yourlittledommebitch.” The supporting affidavit cited a complaint from the

National Center for Missing and Exploited Children. According to the affidavit, the Center had

disclosed information from Yahoo! Inc. that “an account utilizing America Online (AOL) was

involved in an incident that contained Child Pornography (Possession, Manufacture, and

Distribution).”   The culprit, according to the affidavit, used “yourlittledommebitch” and

“LittleDommeGirl@aol.com” as an AOL username and email address. The affidavit further

described several images of child pornography that had been attached to the complaint.




       *
       The Honorable Amul R. Thapar, United States District Judge for the Eastern District of
Kentucky, sitting by designation.
No. 10-2692
United States v. Zorn

       In addition, the affidavit stated that, on November 20, 2009, the police had received two more

complaints from the Center. According to the affidavit, “[b]oth complaints had the AOL email

address of littledommegirl@aol.com,” and each new complaint “contain[ed] a video” of child

pornography. Finally, the affidavit disclosed that the police had subpoenaed Comcast, to which

littledommegirl’s IP address “belong[ed],” and traced the account to Richard Zorn at an address in

Taylor, Michigan. A magistrate judge issued a warrant that authorized the police to search the AOL

account for subscriber information, including emails.

       An investigator examined the AOL account. He discovered that Zorn had “sent videos and

pictures of what appeared to be child pornography from his home computer.” The police then filed

an application for a warrant to search Zorn’s home. This second application recited the allegations

in the original and added the discovery of child pornography during the search of the AOL account.

A magistrate issued the second warrant. The police executed the warrant and discovered more child

pornography in Zorn’s home.

       A federal grand jury indicted Zorn for distribution, receipt, and possession of child

pornography. He filed a motion to suppress the evidence seized from his AOL account and his

home. The district court denied his motion. Zorn then entered a conditional guilty plea that reserved

his right to appeal on the suppression issue. At sentencing, Zorn requested that the district court

reduce his sentence to account for the eight months he had already spent in state custody awaiting

sentencing for the same conduct. The district court denied Zorn’s request and sentenced Zorn to 151

months in prison. Zorn now appeals the denial of his suppression motion and the district court’s

refusal to reduce his sentence.

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No. 10-2692
United States v. Zorn

        Zorn argues that the affidavits attached to both search warrants failed to supply probable

cause to believe that either his AOL account or his home would contain evidence of a crime at the

time of the search. He first says that the affidavits never alleged that he had committed a crime.

Instead, he says, the affidavits said only that his AOL account was “involved in an incident that

contained Child Pornography” and that each of the later two complaints “had [his] AOL email

address” and “contained a video” of child pornography. Zorn insists that these descriptions of the

facts could have had innocent explanations: Perhaps he had merely received child pornography in

spam emails, or maybe he had used his email account to join a group where someone happened to

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

concern that an affidavit did not rule out the possibility that the defendant innocently received child

pornography in a spam email). Thus, Zorn contends that the district court should have suppressed

the fruits of the warrant.

        It is true that the affidavits did not specifically describe how Zorn’s AOL account was

“involved” in a child pornography incident. But just as there are only so many ways a car can be

“involved in” a car accident, there are only so many ways a person’s email or AOL account can be

“involved    in”   a    child   pornography incident—particularly when            the   username is

“yourlittledommebitch,” see United States v. Shields, 458 F.3d 269, 278 (3d Cir. 2006). The account

holder can send or receive pornography in an email. See Terry, 522 F.3d at 648. Or the account

holder can use his email address or service-provider account to join or access a website that hosts

child pornography. See United States v. Frechette, 583 F.3d 374, 379–80 (6th Cir. 2009). No matter

which of these applies here, the police could have believed, in good faith, that a search of the email

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United States v. Zorn

or service-provider account would reveal evidence that someone—whether it be Zorn or a spam

emailer—was involved in a crime involving child porn. See Zurcher v. Stanford Daily, 436 U.S.

547, 559–60 (1978) (holding that the police may search anywhere they have probable cause to

believe that they will find evidence of a crime, even if the owner of the premises is not a suspect).

Either the email account would contain incriminating messages, or Zorn’s browsing history would

reveal his access to a child pornography website. Thus the warrant’s failure to specify how Zorn

accessed child pornography does not justify excluding the fruits of the warrant. See United States

v. Leon, 468 U.S. 897, 922 (1984).

       Zorn further argues that the affidavits failed to supply probable cause because the warrant

“does not indicate how Yahoo! received [the information about Zorn in the first complaint] or where

the information in the other two [] complaints came from.” (Zorn does admit, however, that the

Center is “undoubtedly a reliable source” and that Yahoo!’s “reliability can be presumed.” R. 12

at 9.) He also notes that the affidavits failed to disclose when the Center received information about

the child porn incidents or when the incidents occurred. But the police could have reasonably

concluded that the affidavits did disclose how Zorn’s involvement in child pornography was

exposed. The affidavits say that Yahoo! reported an incident involving Zorn’s AOL username and

email address. That information suggests either that Yahoo! discovered an email sent from Zorn’s

AOL email to a Yahoo! email user or that Yahoo! monitored Zorn’s usage of a website that Yahoo!

hosted. As for the timeliness of the complaints, it is was no secret to anyone in 2009 that the digital

world has a “‘long memory,”’ even for files users try to delete. See Frechette, 583 F.3d at 381

(quoting United States v. Gourde, 440 F.3d 1065, 1071 (9th Cir. 2006) (en banc)); United States v.

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United States v. Zorn

Truitt, 521 F.2d 1174, 1177 (6th Cir. 1975) (relying on “common knowledge” to supply probable

cause). Thus, the police relied on the warrants in good faith. The district court correctly denied

Zorn’s suppression motion. See Leon, 468 U.S. at 922.

        Finally, Zorn challenges the district court’s refusal to reduce his sentence for the time he had

already spent in state custody awaiting a sentence in state 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 offense that is relevant conduct to the instant offense . . . [and is] the basis for an

increase in the offense level for the instant offense,” then the district could should order its sentence

to run concurrently with the other and “adjust the sentence for any period of imprisonment already

served on the undischarged term of imprisonment.” Id. § (b)(1), (2). The problem with Zorn’s

argument, however, is that § 5G1.3(b) only applies if the federal court is in a position to order that

the federal sentence run concurrently with the state sentence, see § 5G1.3(b)(2), and the defendant

is subject to a “term of imprisonment [that] resulted from another offense.” But a federal court is

powerless to order that its sentence run concurrently with a state sentence if the state court has not

yet sentenced the defendant. 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). Moreover, a federal defendant who has not yet received a sentence in state court is not yet

subject to a “term of imprisonment [that] resulted from another offense.” See United State v. Rollins,

552 F.3d 739, 742 (8th Cir. 2009) (citing the definition of “term of imprisonment” in 8 U.S.C.

§ 1101(a)(48)(B)); cf. King v. United States, No. 96-2515, 1997 WL 580776, at *2 (6th Cir. Sept.

18, 1997) (holding that an older version of § 5G1.3 did not apply where the state sentence had “yet-

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No. 10-2692
United States v. Zorn

to-be-imposed”). Neither of those circumstances was present here, so § 5G1.3(b) was inapplicable,

and the district court correctly declined to adjust Zorn’s sentence.

       The district court’s judgment is affirmed.




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