United States v. Gray, 4:14-cr-00164

Background

Nickie Thomas Gray Jr. was indicted on two counts: receipt/distribution of child pornography (18 U.S.C. §2252(a)(2)) for files shared Feb 14, 2013–Apr 1, 2014, and possession of child pornography (18 U.S.C. §2252A(a)(5)(B)) for files found on his home computer seized Apr 17, 2014.
Investigators identified an IP address sharing child porn via peer-to-peer software, traced the IP to Gray’s mother’s residence where Gray lived, and downloaded files available in the shared folder.
A forensic exam of the seized computer revealed peer-to-peer software, many child porn images/videos, evidence of viewing and deletion, and file-wiping software; the computer’s IP matched the addresses used to download files.
Gray was convicted by a jury, sentenced to 240 months imprisonment concurrent on both counts, and the Sixth Circuit affirmed on direct appeal.
Gray filed a §2255 motion alleging ineffective assistance of counsel across seven grounds (failure to object to presentation of images/CD in jury room, failure to object to out-of-country witness testimony, failure to challenge warrantless ‘‘hacking’’/download, improper judicial comments, withdrawal of suppression motion, failure to move to suppress based on IP/NIT issues, and double jeopardy), plus a supplemental motion citing Torres and an EFF paper.
The district court denied relief, concluding counsel’s performance was not deficient because the contested evidence and procedures were lawful or non-prejudicial (e.g., public sharing via peer-to-peer defeats expectation of privacy; evidence was properly admissible; double convictions rested on distinct acts/dates).

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Admissibility/showing of child pornography at trial and jury possession of CD	Gray: counsel should have objected to multiple showings and CD going to jury; prejudicial.	Gov: images were direct evidence of crimes; probative and properly shown; jury allowed to view.	Denied — evidence admissible; no valid objection and no prejudice.
Testimony of Canadian RCMP witness (Csikos) identifying a victim as a real minor	Gray: counsel should have objected to this testimony.	Gov: testimony was necessary to prove images depicted real minors and traveled in foreign commerce.	Denied — testimony proper; counsel made objections and no valid basis for relief.
Warrantless downloading via peer-to-peer ("hacking") and resulting search warrant	Gray: agents illegally accessed his computer; counsel ineffective for not challenging.	Gov: files in shared folder were publicly available; no Fourth Amendment violation; later search warrant covered seizure.	Denied — no expectation of privacy in publicly shared P2P files; counsel not deficient.
Double jeopardy for receipt and possession charges	Gray: convictions duplicative because based on same images; counsel ineffective for not objecting.	Gov: charges based on separate conduct and dates (downloads over time vs. seizure on Apr 17).	Denied — distinct facts/dates support separate convictions; Sixth Circuit affirmed on appeal.

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (Sup. Ct. 1984) (two-part test for ineffective assistance of counsel)
Blackledge v. Allison, 431 U.S. 63 (Sup. Ct. 1977) (judge’s ability to dismiss §2255 where record refutes claims)
United States v. Ganoe, 538 F.3d 1117 (9th Cir. 2008) (no reasonable expectation of privacy in files openly shared via P2P)
Lundgren v. Mitchell, 440 F.3d 754 (6th Cir. 2006) (strategic failure to object ordinarily not ineffective assistance)
United States v. Dudeck, 657 F.3d 424 (6th Cir. 2011) (receipt and possession convictions may both stand where separate conduct underlies each)
United States v. Poulsen, 655 F.3d 492 (6th Cir. 2011) (limits on excluding probative child pornography evidence)