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United States v. Finley

United States District Court, W.D. Pennsylvania

August 15, 2017

CRAIG ALAN FINLEY, Petitioner/Defendant. Civ. No. 15-249 Erie



         Pending before the Court is Petitioner Craig Alan Finley's pro se Motion to Vacate, Set Aside, or Correct a Sentence pursuant to 28 U.S.C. § 2255 (ECF No. 115) ("Petition") filed at Criminal No. 11-04 (Erie) and as Civil Action No. 15-249 (Erie). The United States has filed a Response to the Motion, to which Mr. Finley has filed a Reply. For the reasons which follow, the Motion will be denied.

         I. BACKGROUND

         Mr. Finley was charged in a four-count superseding Indictment with (1) sexual exploitation of a minor in and around August 2010, in violation of 18 U.S.C. §§ 2251(a) and (e); (2) receipt of material depicting the sexual exploitation of a minor from in and around August 2010 to in and around December 2010, in violation of 18 U.S.C. §§ 2252(a)(2) and (b)(1); (3) distribution of material depicting the sexual exploitation of a minor from in and around August 2010 to in and around December 2010, in violation of 18 U.S.C. §§ 2252(a)(2) and (b)(1); and (4) possession of material depicting the sexual exploitation of a minor from in and around August 2010 to in and around December 2010, in violation of §§ 2252(a)(4)(B) and (b)(2). (ECF No. 26).

         The charges arose out of a Federal Bureau of Investigation ("FBI") undercover operation on the peer-to-peer Internet file sharing network GigaTribe. GigaTribe is a program offered for free that anyone who has Internet access can download onto their computer. "Peer-to-peer" simply means that the GigaTribe program allows computers in different locations to connect together over the Internet, and GigaTribe will act as a conduit between the computers to allow them to share information and otherwise communicate with one another. GigaTribe allows users to share: (i) only content the user has specifically designated for sharing on GigaTribe; (ii) only with other GigaTribe users that are "friends;" and (iii) only while both users are connected to GigaTribe through the Internet. The FBI undercover agents involved in this case operated on the GigaTribe network using actual GigaTribe usernames that had been taken over by the FBI in prior child pornography operations.

         The undercover investigation initially involved FBI Agent Marc Botello of Los Angeles, California communicating via GigaTribe with Mr. Finley in October, 2012. Working independently from Agent Botello, FBI Agent Barry Couch of Rochester, New York communicated via GigaTribe with Mr. Finley in late December, 2012.

         On October 21, 2010, Agent Botello logged onto the GigaTribe network using the GigaTribe username, "JoePeter94." Tr., Jan 19, 2012, at 37 (ECF No. 104). He saw the username "Boys4me2010, " surveyed his online GigaTribe shared folders, and realizing that a password was required in order to view the contents of the folders, he initiated a chat. Id. at 38. When one logs onto GigaTribe, they have to manually set certain files on the computer to share, that is, one has to affirmatively make the content available for others to download Id. at 16. Botello asked Boys4me2010 if he (Botello) could have the password for a folder titled "stuff that Boys4me2010 was sharing on the network. Id. at 39, 46. Boys4me2010 gave Botello the password. Id. at 46. Botello clicked on the folder, entered the password, and the list of files the folder contained was displayed to Botello. Id. at 51. Botello then downloaded several files from the "stuff folder verifying that they contained what appeared to be child pornography. Id. at 52-54.

         Botello was able to identify username Boys4me2010 as operating from an IP address of on October 21, 2010. M. at 45, 54. He further confirmed that IP address of was registered with Armstrong Cable Services of Butler, Pennsylvania. Id. at 60. Botello served Armstrong Cable with a request for the subscriber information for the IP address Id. On November 2, 2010, Armstrong Cable responded that the subscriber was Craig Alan Finley with a residence address in Titusville, Pennsylvania. Id. at 61-65. Botello passed the information he had gathered about Boys4me2010 onto the FBI field office in Erie, Pennsylvania because that office covers the Titusville, Pennsylvania area. Id. at 65-66.

         Erie FBI Agent Michael Shaffer received the lead from Agent Botello in early December, 2010, and began initial preparation and investigation towards gaining a search warrant for Mr. Finley's residence. Tr. Jan. 24, 2012, at 3 (ECF No. 105). Before a search warrant was obtained, Agent Barry Couch in Rochester, New York, logged onto the GigaTribe network on December 20, 2012, in an undercover capacity using the GigaTribe username "PurpleTrim420." Tr., Jan 19, 2012, at 88-89 (ECF No. 104). Because PurpleTrim420 was at one time an active account trading child pornography, the user had a friends' list that included Boys4me2010. Id. at 91. Couch engaged in a conversation with Boys4me2010. Id. at 91, 96. He pretended that he had forgotten Boys4me2010's passwords for his shared GigaTribe folders and asked for them again. M at 96. Boys4me2010 gave Couch the passwords. M at 97-98. Couch then used the passwords to unlock the Boys4me2010's shared folders and downloaded several still images and movies of child pornography. Id. at 98-104. Couch viewed information that user Boys4me2010 had placed in his profile, which indicated that the user was a male with a birthdate of January 26, 1977.

         Couch continued chatting with Boys4me2010 and learned that the user may be physically engaged in sexual conduct with a minor child. Id. at 106. Because there was potentially a victim in present danger of being molested, Couch continued chatting with Boys4me2010 in order to learn as much information as he could to allow law enforcement to take steps to protect the potential victim. Id. at 107-18. Through his conversation with Boys4me2010, Couch learned that the user was approximately 33 years old; the minor children were boys ranging in age from 7 to 14 years old; the minor boys were related to the user; the user did not own a vehicle and he lived within a 15-minute walking distance of the minors. Id. at 119-22.

         Couch served Armstrong Cable with a request for the subscriber information for the IP address being used on December 20, 2012. Id. at 130. Armstrong Cable Company responded that the IP address was registered to Craig Finley with a residence address in Titusville, Pennsylvania. Id. at 131. Couch then forwarded the information he had gathered to the Erie FBI field office, letting the office know that there was an immediate concern that an adult might be engaging in sexual conduct with a minor. Id. at 132.

         Agent Shaffer was already preparing for a search warrant for Mr. Finley's residence based on the information Botello had forwarded to him in early December when the second lead from Couch came in containing the identical IP address and GigaTribe username. Tr. Jan. 24, 2012, at 4 (ECF No. 105). The matter became a priority for Couch because of the allegation that a minor child was at risk, and thus the FBI obtained and executed a search warrant on December 23, 2010. Id. at 4-5.

         On the (lay the search warrant was executed, Couch logged onto GigaTribe and was able to see that Boys4me2010 was also logged into his GigaTribe account. Id. at 8-9. Couch shared this information with Shaffer, and so he proceeded to Mr. Finley's residence assuming that Mr. Finley was at home. Id. at 9. The Agents knocked at the door and announced that it was law enforcement. Id. When no one answered, the Agents decided to forcefully enter the apartment believing Mr. Finley may be attempting to destroy evidence. Id. When the Agents entered the apartment they discovered that Mr. Finley was not there. Id.

         Agent Shaffer viewed Mr. Finley's running computer. Id. at 10. The screen on the monitor was asleep. Id. at 16. Shaffer moved the mouse connected to the computer tied to the sleeping monitor, which "woke up" the screen. Id. at 13, 16. Viewing the screen. Agent Shaffer confirmed that the GigaTribe program with a username of Boys4me2010 was active on the computer. Id. at 13-14, 16. Prior to the search, Shaffer had viewed an image that Couch had downloaded th£it Boys4me2010 was sharing on GigaTribe of a boy sitting on a green couch, and further observed the same green couch in Mr. Finley's apartment. Id. at 17-18.

         Assisting with the execution of the search warrant were Titusville police officers who knew that Mr. Finley's brother lived close by. Tr. Jan. 17, 2012, at 29 (ECF No. 102). The Agents decided to go to Mr. Finley's brother's house thinking that Mr. Finley might be there. Id; Tr. Jan. 24, 2012, at 22. He was not. Tr. Jan. 17, 2012, at 30. The officers were told that he was Christmas shopping with his sister-in-law. Id. One of the occupants called the sister-in-law and handed the phone to an Agent who spoke with her, and then with Mr. Finley. Id. The Agent asked him to return to his apartment. After he arrived, Mr. Finley was interviewed, and the search warrant process was completed. Among the items seized from Mr. Finley's apartment were two computers (one computer was not plugged in) and a cell phone that Mr. Finley possessed when he was searched.

         Pennsylvania State Police Corporal Robert Pearson examined the two computers and the cell phone seized during the execution of the search warrant. Tr. Jan. 24, 2012, at 51 (ECF No. 105). He is a federally deputized law enforcement officer and expert in computer forensics. Id. at 37-38. At the time of trial he was the coordinator of the Northwest Computer Crimes Task Force. Id. at 37. His examination showed that both computers contained, among other items, Mr. Finley's resume, a link to his Facebook page, a GigaTribe account for Boys4me2010, a Skype account with the username Boys4me2010, an AOL account with the username Boys4me2010, and over 30, 000 images and videos of child pornography. Id. at 58-65. Corporal Pearson discovered multiple saved chat logs showing that Boys4me2010 had engaged in conversations with 100's of other GigaTribe users about sharing, distributing, and receiving child pornography. Id. at 74-110. A review of the chat records revealed that on October 3, 2010, Boys4me2010 announced to other GigaTribe users that he was updating his GigaTribe folders as a result of a computer change. Id. 109-110, 121. In addition, the chat records indicated numerous instances when Boys4me2010 tells other GigaTribe users that he leaves his computer and GigaTribe account up and running when he is away from his computer. Id. at 142-44.

         Mr. Finley was arrested and detained on December 23, 2010. Assistant Federal Public Defender Thomas Patton was appointed to represent Mr. Finley. A jury trial was set for January, 2012. On December 14, 2011, Mr. Patton filed a motion to suppress statements Mr. Finley gave to the Agents v/hen he was questioned at his apartment. On January 4, 2012, Mr. Finley sent a letter to the Court, which was filed as a motion to disqualify counsel.

         The Court held a hearing on the motion to disqualify counsel on January 10, 2012. Tr. Jan. 10, 2012 (ECF No. 92). The Court conducted an in camera examination of Mr. Finley outside of the presence of both the government and Mr. Patton. Id. at 4-10. Mr. Finley explained that he no longer wanted Mr. Patton to represent him because of communication issues, disagreements about trial strategy, pressure to take a plea, non-response to requests to file motions, and refusal to file motions. Id. at 4-8. The Court told Mr. Finley that it was "not going to replace him based on what you have told me this morning. I just don't think there's a good basis for that, granting that request." Id. at 9.

         In open court the Court asked Mr, Patton questions regarding his relationship with Mr. Finley, his ability to represent Mr. Finley, and whether he pressured him to take a plea.. Id. at 10-11. Being satisfied that Mr. Patton was able to properly represent Mr. Finley, the Court denied Mr. Finley's motion to disqualify counsel and his request to continue the trial to seek new counsel. Id. at 11.

         A suppression hearing was held prior to trial on January 17, 2012. Tr. Jan. 17, 2012 (ECF No. 102). After testimony and evidence were received, the Court found that Mr. Finley was in custody at the time he was questioned and that he had not been given Miranda warnings. Accordingly, the motion to suppress was granted and Mr. Finley's statements were ruled inadmissible.

         A jury trial began on January 18, 2012, after which Mr. Finley was convicted of all four counts. Prior to sentencing the Court issued tentative findings and rulings finding that (i) a vulnerable victim enhancement pursuant to U.S.S.G. § 3Al. 1 (b)(1) was proper because the Court determined that the minor victim was asleep, making the child unusually vulnerable; and (ii) that no sentence would be imposed at Count 4 of the superseding indictment because it is a lesser included offense of Count 2.

         On May 8, 2012, Mr. Finley was sentenced to a total term of imprisonment of 50 years, consisting of 30 years at Count 1 of the superseding indictment, a consecutive 20-year sentence at Count 2 of the superseding indictment, and a concurrent term of 20 years' imprisonment at Count 3 of the superseding indictment.

         A timely appeal to the United States Court of Appeals for the Third Circuit was filed by Assistant Federal Public Defender Karen Sirianni Gerlach. On August 12, 2013, that court issued its opinion affirming the judgment of conviction and sentence. United States v. Finley, 726 F.3d 483 (3d Cir. 2013). Thereafter, Mr. Finley timely filed his motion to vacate, raising issues as to the claimed ineffectiveness of both his trial and appellate counsel.


         Section 2255 of Title 28 of the United States Code provides a means of collaterally attacking a sentence imposed after a conviction. See United States v. Cannistraro, 734 F.Supp. 1110, 1119 (D. N.J. 1989), aff'd sub nom. Appeal of Cannistraro, 919 F.2d 133 (3d Cir. 1990), and aff'd 919 F.2d 137 (3d Cir. 1990). Pursuant to 28 U.S.C. § 2255, a federal prisoner may move the sentencing court to vacate, set aside, or correct a sentence:

[U]pon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.

28 U.S.C. § 2255 (2012). Relief under this provision is "generally available only in 'exceptional circumstances' to protect against a fundamental defect which inherently results in a complete miscarriage of justice or an omission inconsistent with the rudimentary demands of fair procedure." United States v. Gordon, 979 F.Supp. 337, 339 (E.D. Pa. 1997) (quoting Hill v. United States, 368 U.S. 424, 428 (1962).

         A district court is required to hold an evidentiary hearing on a motion to vacate sentence filed pursuant to 28 U.S.C. § 2255 unless the motion, files, and records of the case show conclusively that the movant is not entitled to relief. See 28 U.S.C. § 2255(b); United States v. Booth, 432 F.3d 542, 545-46 (3d Cir. 2005); United States v. Nahodil, 36 F.3d 323, 326 (3d Cir. 1994). Thus, if the record conclusively negates the factual predicates asserted in support of a § 2255 motion, or if the movant would not be entitled to relief as a matter of law even if the factual predicates as alleged in the motion are true, an evidentiary hearing is not required. See Government of Virgin Islands v. Nicholas, 759 F.2d 1073, 1075 (3d Cir. 1985).

         The Court finds no need for an evidentiary hearing here, as the record conclusively establishes that Mr. Finley is not entitled to the relief sought in the petition. See 28 U.S.C. § 2255. Accordingly, his motion for an evidentiary hearing will be denied.


         Mr. Finley argues that he was denied effective assistance of counsel under the Sixth Amendment of the Constitution at trial and on appeal. Underlying Mr. Finley's ineffectiveness of counsel arguments is his central assertion that an anonymous, unauthorized person surreptitiously and illegally accessed his computers, engaged in the numerous chat session with other GigaTribe users, and caused images and videos of child pornography to be placed on his computers.

         Specifically, Mr. Finley alleges his counsel was ineffective as follows:

• in failing to challenge the search warrant because the officers had knowledge indicating unauthorized user activity;
• in failing to move for acquittal pretrial, during trial, and post-trial as to Count One because the depiction did not meet the definition of sexual activity nor did the evidence establish Mr. Finley's receipt;

• in refusing to investigate and present an alternate user defense theory;

• in failing to subpoena certain character and fact witnesses;

• in failing to adequately cross-examine government witnesses Shaffer, Couch, Botello, Pearson, and Blashford;

• in failing to object to prosecutorial misconduct;
• in failing to be competent in computer forensics; and • in failing to preserve issues for appeal.

         Mr. Finley also argues that his Sixth Amendment right to effective counsel was violated by the court denying his motion to appoint new counsel because it resulted in "conflicted" counsel as follows:

• trial counsel was "representing conflicting interests, " by which Mr. Finley means Mr. Patton refused to investigate Mr. Finley's defense and that Mr. Patton would not vigorously and competently pursue Mr. Finley's defense strategy;
• appellate counsel was ineffective because she was operating under a conflict based on the fact that she was employed by the same Federal Public Defender's office as Mr. Patton, and that she failed to raise any issue based on Mr. Finley's theory of defense; and
• due to the conflicts of interests, none of the issues Mr. Finley has raised in this proceeding were raised on appeal, which denied him a first appeal as of right.

         Finally, underlying Mr. Finley's Petition is his assertion that he is "actually innocent" of the charges. This claim is not a traditional claim of actual innocence, but is in fact a rephrasing of Mr. Finley's primary ineffectiveness claims. Although he asserts that he is in fact "actually innocent" of the charges against him, he bases this assertion on the same arguments supporting his ineffectiveness claims; that is, his trial and appellate counsel failed to competently and thoroughly investigate and pursue Mr. Finley's alternate remote user access defense. He claims this resulted in the jury being denied the evidence upon which it would have found Mr. Finley to be innocent.

         A. Mr. Finley's Actual Innocence Claim and Remote User Access Theory

         Mr. Finley's claim that he was actually innocent permeates his Petition and therefore the Court will first set out his allegations that someone else accessed his computers without his knowledge. As noted, this is not a typical claim of actual innocence. "To establish actual innocence, petitioner must demonstrate that, 'in light of all the evidence, ' 'it is more likely than not that no reasonable juror would have convicted him.'" Bousley v. United States, 523 U.S. 614, 623 (1998) (quoting Schlup v. Delo, 513 U.S. 298, 327-328 (1995)). '"[A]ctual innocence' means factual innocence, not mere legal insufficiency." Id.

         Mr. Finley acknowledges that he downloaded the GigaTribe software in early 2010, explaining that his intent was to use the program to share video games files and sessions, but that he "never bought into activate or register Gigatribe." Pet. Reply at 26 (ECF No. 136). He claims he did not activate the Boys4me2010 GigaTribe account, did not know that it was on his computer, and he was not the person operating the account. Similarly, he claims he was not the person who engaged in any of the numerous chat sessions with other GigaTribe users discussing receiving, distributing, and possessing child pornography using the Boys4me2010 account. Mr. Finley also claims that he was not the person who discussed with the undercover Agent and other users the user's, desire to engage in unlawful sexual conduct with Mr. Finley's minor relatives. Finally, he claims he did not create the folders in the Boys4me2010 account named after his same minor relatives and containing images and videos of said children.

         Mr. Finley's theory is that an unknown person unlawfully and surreptitiously gained remote access to his computer, and that the unauthorized user activated a GigaTribe account with the username Boys4me2010 using Mr. Finley's birthdate and gender. This user then supposedly created several folders within the Boys4me2010 account including the primary folder titled "Stuff as well as folders named after Mr. Finley's minor relatives. The remote user then proceeded to engage in unlawful activity involving child pornography from approximately August 2010 though December 2010. This user allegedly engaged in hundreds of chat sessions about child pornography with other users. In several of these conversations the user offered information directly aligning with Mr. Finley's life and relationships. The user downloaded over 30, 000 unlawful child pornography files and placed them in folders on Mr. Finley's computer. Mr. Finley asserts that he did not know that this activity was occurring and did not know that the files were on his computer.

         Mr. Finley acknowledges that the image of his minor relative on Mr. Finley's green couch, for which he was convicted of production of child pornography, was on his computer. He claims he is not responsible for distributing this file on GigaTribe. He otherwise does not address the existence of folders allegedly created by the unknown GigaTribe remote user titled with reference to his minor relatives or the fact that images of his minor relatives were placed in those folders.

         Mr. Finley implies that the unauthorized hacking began with his old Compaq computer that was not connected to the Internet at the time of the search warrant. The Compaq computer did contain the Boy4me2010 GigaTribe account and the related folders containing over 30, 000 files of child pornography as well as the folders and files related to his minor relatives. Mr. Finley explains that the child pornography files on his Dell computer were simply copied over from his old Compaq computer without his knowledge. Mr. Finley's admitted use of the Compaq computer and his subsequent copying over of files from that computer to his new Dell computer occurred at the same time that the alleged remote user told his fellow GigaTribe users that he was in the process of transferring files from an old computer to a new computer.

         Mr. Finley next claims without any evidentiary support that this "case reveals Petitioner the victim of multiple instances of anonymous, unauthorized user access activity; (i.e., Hacker), resulting in the instant charges . . . ." Pet. Mot. To Vacate, at 7 (ECF No. 115). Mr. Finley supports his theory with evidence produced during the trial that when the search warrant was executed the Agents discovered the GigaTribe program up and running on Mr. Finley's computer when he was not at home.

         Mr. Finley asserts that the "officers heard computer sounds coming from inside" and therefore entered his apartment in case evidence was being destroyed. Id. at 19. There is no evidence in the record that the officers heard computer sounds before entering the apartment. The evidence shows that at the time the search warrant was executed Agent Couch had logged onto GigaTribe and confirmed that the Boys4me2010 account was also logged onto GigaTribe. Tr. Jan. 24, 2012, at 8 (ECF No. 105). This information was relayed to Agent Shaffer who proceeded to execute the search warrant assuming that Mr. Finley was present in the apartment. Id. at 8-9. When no one responded to law enforcement's knock on the door the decision was made to forcefully enter the apartment in case Mr. Finley was attempting to destroy potential evidence. Id. at 9, 26-27.

         Mr. Finley also erroneously asserts that the prosecutor implied Mr. Finley was at the apartment when the Agents arrived to execute the search warrant but left to go to his brother's house when he realized the Agents were there. Id. There is no evidence in the record to support this assertion. The evidence shows that after entering Mr. Finley's apartment and discovering that Mr. Finley was not there, the Agents attempted to locate Mr. ...

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