                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 19a0491n.06

                                        Case No. 18-6082

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT                                    FILED
                                                                                  Sep 24, 2019
                                                                              DEBORAH S. HUNT, Clerk
UNITED STATES OF AMERICA,                              )
                                                       )
       Plaintiff-Appellee,
                                                       )        ON APPEAL FROM THE
                                                       )        UNITED STATES DISTRICT
v.
                                                       )        COURT FOR THE WESTERN
                                                       )        DISTRICT OF TENNESSEE
MARCUS WILLIAMS,
                                                       )
       Defendant-Appellant.                            )
                                                                                    OPINION

BEFORE: MOORE, McKEAGUE, and GRIFFIN, Circuit Judges.

       McKEAGUE, Circuit Judge. Marcus Williams traded child pornography online. When

federal agents found out, they applied for a search warrant for his home and car. The search yielded

a laptop and cell phones full of child pornography. After the government charged Williams with

possessing and distributing child pornography, Williams moved to suppress all evidence from the

search because the information used to obtain the search warrant was allegedly stale. The district

court denied the motion, and a jury convicted Williams on all charges. Williams appeals, arguing

both that the district court erred in denying his suppression motion and that the evidence was

insufficient to support the jury’s verdict. We disagree and AFFIRM.

                                                 I.

       During an October 2015 child exploitation investigation, federal agents in Virginia

discovered that someone with the username “marcus williams trueone12345” was trading child
Case No. 18-6082, United States v. Williams


pornography over Kik (a mobile instant message application) with another user. Kik produced the

internet protocol address associated with the username in early 2016 in response to an

administrative subpoena. With Comcast’s help, federal agents then tied that online address to a

home address in Memphis, Tennessee belonging to Williams’s uncle. All this information was

passed on to Memphis-based Special Agent Aaron Thompson, along with data from the “marcus

williams trueone12345” Kik account. The account data included child pornography and October

2015 messages discussing the exchange of child pornography through the email address

“marcus.williams41@yahoo.com.”

       So Thompson investigated Williams. In June 2016, Thompson staked out the uncle’s

house. He saw Williams park his car there and go inside. Then in July, Thompson received data

from the Yahoo email account pursuant to a search warrant. This account data confirmed two

things: one, whoever was using the “marcus.williams41” email address was trading child

pornography; and two, that person was, as late as July 5, 2016, logging in from Williams’s uncle’s

home and directing “clients” to contact him through Kik or another email address. Thompson

double-checked that Williams was still parking his car there in August and late September—he

was—then applied for a search warrant on September 29, 2016. Thompson recounted everything

from the October 2015 Virginia investigation onward in his affidavit, and stated that based on his

experience he expected to find a potentially years-long archive of child pornography on a personal

computer or cell phone in the home or Williams’s car.

       And that’s exactly what Thompson found when he searched the home on October 5, 2016

after a magistrate judge approved the warrant—a laptop storing over 3,000 pornographic videos

of children. Williams’s three cell phones also had videos. When Thompson confronted Williams,

Williams confirmed that the Yahoo and Kik accounts were his and that he had been living with his



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Case No. 18-6082, United States v. Williams


uncle for a year. But Williams maintained that he was not responsible for the child pornography

on his accounts and devices.

       On March 8, 2017, the government charged Williams with two counts of distributing child

pornography over the internet, 18 U.S.C. § 2252(a)(2), and one count of possession of child

pornography, 18 U.S.C. § 2252(a)(4)(B). (The first distribution charge related to a February 26,

2016 email Williams sent containing child pornography; the second, a similar October 3, 2016

email.) Williams moved to suppress the evidence obtained from the search on the ground that

Thompson relied on “stale” information in his affidavit. According to Williams, the search warrant

lacked probable cause because Thompson could not “connect the dots” between online messages

sent in October 2015, an internet protocol address discovered five months later, and the September

29, 2016 search warrant application. The district court denied the motion, reasoning that the

affidavit was not stale when considering the character of the crime, the nature of the criminal, the

items to be seized, and the places to be searched. Williams proceeded to trial, where the

government called Thompson and two other agents to testify; Williams chose not to present a

defense. The jury convicted Williams on all three counts, and the district court sentenced him to

188 months’ imprisonment. Williams timely appeals, challenging the district court’s denial of his

suppression motion and the sufficiency of the evidence used to convict him.

                                                 II.

       First, the suppression motion. We use a mixed standard when reviewing a district court’s

denial of a motion to suppress. We review its factual findings for clear error and its legal findings

de novo. United States v. Gross, 662 F.3d 393, 398 (6th Cir. 2011). And we take the evidence “in

the light most favorable to the government” where, as here, it’s the defendant’s motion the district




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Case No. 18-6082, United States v. Williams


court denied. United States v. Carter, 378 F.3d 584, 587 (6th Cir. 2004) (en banc) (quotation

omitted).

       Whether Thompson’s affidavit provided probable cause for the issuance of a search

warrant is a legal question. United States v. Frazier, 423 F.3d 526, 531 (6th Cir. 2005). In

answering that question, we consider only the information Thompson provided the issuing

magistrate. United States v. Pinson, 321 F.3d 558, 565 (6th Cir. 2003). Still, we pay “great

deference” to a magistrate’s judgment, which “should not be set aside unless arbitrarily exercised.”

United States v. Leake, 998 F.2d 1359, 1363 (6th Cir. 1993) (quotation omitted). If the magistrate

had a “ʻsubstantial basis for . . . conclud[ing]’ that a search would uncover evidence of

wrongdoing,” Illinois v. Gates, 462 U.S. 213, 236 (1983) (quotation omitted), we must uphold the

search warrant. Leake, 998 F.2d at 1363.

       Williams argues that Thompson’s information was too old to support the magistrate judge’s

probable cause determination. Outdated or “stale” information, by itself, cannot establish probable

cause. See United States v. Spikes, 158 F.3d 913, 923 (6th Cir. 1998). But just because information

is old doesn’t mean it’s stale—each case is different, and the circumstances of the case control

rather than temporal lines in the sand. See Sgro v. United States, 287 U.S. 206, 210–11 (1932);

United States v. Burney, 778 F.3d 536, 540 (6th Cir. 2015). Whether information is stale depends

on “the character of the crime (chance encounter in the night or regenerating conspiracy?), the

criminal (nomadic or entrenched?), the thing to be seized (perishable and easily transferable or of

enduring utility to its holder?), [and] the place to be searched (mere criminal forum of convenience

or secure operational base?),” among other things. Spikes, 158 F.3d at 923 (quotation omitted).

“[E]ven if a significant period has elapsed since a defendant’s last reported criminal activity, it is




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Case No. 18-6082, United States v. Williams


still possible that, depending upon the nature of the crime, a magistrate may properly infer that

evidence of wrongdoing is still to be found on the premises.” Id.

       Williams’s main contention is that Thompson applied for a search warrant more than seven

months after agents discovered his Kik and Yahoo accounts, meaning Thompson impermissibly

“sat on” the connection between those accounts and his uncle’s home for about six months. We

rejected a similar contention in United States v. Frechette, 583 F.3d 374 (6th Cir. 2009). In that

case, a sixteen-month-old online subscription to a child pornography website provided the basis

for a search warrant for the defendant’s home. Id. at 377–78. Although information that old is

“usually” too stale for a drug case, we held that it is fresh enough for a child pornography case.

Id. at 379. That’s because all four Spikes factors point toward freshness in a typical child

pornography case: “child pornography is not a fleeting crime” but rather “carried out in the secrecy

of the home and over a long period” (the first, second, and fourth factors); and “images of child

pornography can have an infinite life span” when traded digitally (the third factor). Id. at 378–79.

       This case is far easier than Frechette.       Thompson’s affidavit established—through

Williams’s eponymous accounts, an internet protocol address, and stakeouts—that Williams was

operating out of his uncle’s home from October 2015 to September 2016. And the affidavit listed

the pornographic videos of children that Williams sent and received from October 2015 to at least

May 2016, providing incriminating filenames and descriptions. In other words, Williams, having

“entrenched” himself in a “secure operational base,” traded illegal videos of unlimited life span

over the course of several months. The magistrate judge thus had a substantial basis for concluding

that a search of the uncle’s home and Williams’s car would yield evidence of wrongdoing despite

the six-month delay between Williams’s messages and the search warrant application. See United

States v. Hampton, 504 F. App’x 402, 404 (6th Cir. 2012) (per curiam) (ten-month delay in



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Case No. 18-6082, United States v. Williams


obtaining a search warrant did not render an affidavit stale in a child pornography case); United

States v. Lewis, 605 F.3d 395, 402 (6th Cir. 2010) (more than seven-month delay); United States

v. Lapsins, 570 F.3d 758, 767 (6th Cir. 2009) (nine-month delay); United States v. Paull, 551 F.3d

516, 522–23 (6th Cir. 2009) (thirteen-month delay).

        Williams also argues he “abandoned” his email account four months before the search

warrant application or was not otherwise responsible for it. But we must view the evidence in the

government’s favor. See Carter, 378 F.3d at 587. The affidavit indicates that as late as July 2016,

Williams was still accessing his Yahoo account and directing “clients” to his other accounts. Email

forwarding is not abandonment. Even if it were, the magistrate judge still had a substantial basis

for concluding Williams’s devices contained child pornography because digital media can be

stored indefinitely, let alone for four months. Cf. Frechette, 583 F.3d at 376–79 (defendant’s child

pornography subscription that lapsed after one month provided probable cause for a search warrant

issued over a year later).

        So there was nothing stale about Thompson’s affidavit, and the magistrate judge

appropriately found probable cause existed for the issuance of a search warrant. We accordingly

affirm the district court’s denial of Williams’s motion to suppress.

                                                  III.

        That leaves Williams’s challenge to the jury’s verdict. When reviewing the jury’s verdict,

“the relevant question is whether, after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the crime beyond

a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). “We draw all available

inferences and resolve all issues of credibility in favor of the jury’s verdict, and it is not necessary




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Case No. 18-6082, United States v. Williams


for us to exclude every reasonable hypothesis but guilt.” United States v. Avery, 128 F.3d 966,

971 (6th Cir. 1997).

         The evidence was sufficient to convict Williams on his distribution and possession charges.

Thompson testified that Williams admitted the Yahoo and Kik accounts were his.                Child

pornography was sent and received through those accounts. Williams’s laptop and cell phones

were brimming with child pornography. That’s plenty. See, e.g., United States v. Oufnac, 449 F.

App’x 472, 475–78 (6th Cir. 2011); United States v. Mellies, 329 F. App’x 592, 607 (6th Cir.

2009).

         Williams suggests the government had to both show his accounts and laptop weren’t

“attacked” or accessed by others and explain why the pornographic videos of children on his laptop

were sloppily organized. Not so. With his admissions and the number of videos found on his

personal devices, the evidence of Williams’s guilt was overwhelming even if others could have

accessed those devices. See Oufnac, 440 F. App’x at 476–77. Nor does knowing possession and

distribution require a defendant to fastidiously archive his child pornography collection.

“Knowingly” means with “knowledge of the facts that constitute the offense,” Bryan v. United

States, 524 U.S. 184, 193 (1998), not “expertly.”

         There was sufficient evidence for the jury to convict Williams, so we affirm the judgment.

                                                IV.

         For these reasons, we AFFIRM the denial of Williams’s motion to suppress and the

judgment entered against him.




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