## Facts

- FBI agents investigated unauthorized intrusions into the National Library of Medicine’s computer systems and obtained a warrant to search Montgomery Johns Gray’s home computers for intrusion-related evidence.
- Agents seized four computers, imaged their hard drives, and used a directory-only listing and text-string searches to identify the drive most likely to contain intrusion-related material.
- During a systematic review of directories and files to execute the intrusion warrant, an agent opened image-file directories labeled “Teen” and then “Tiny Teen.”
- The agent encountered pornographic images; after seeing images that appeared to depict minors, law enforcement sought and obtained a second warrant authorizing a search for child pornography.
- Gray was indicted for unlawful access to a government computer and possession of child pornography; a separate computer-damage count was dismissed before trial at the government’s request.
- Gray moved to suppress the child-pornography evidence as beyond the original warrant’s scope and moved to sever (or challenged joinder of) the child-pornography count from the computer-intrusion counts.

## Issues

1. Whether child-pornography evidence discovered while executing a computer-search warrant for unrelated intrusion evidence must be suppressed as outside the warrant’s scope or may be admitted under the plain-view doctrine.
2. Whether the computer-intrusion counts and the child-pornography count were properly joined under Federal Rule of Criminal Procedure 8(a).
3. If joinder was permissible, whether the counts should be severed under Federal Rule of Criminal Procedure 14 due to unfair prejudice.

## Decision

- The motion to suppress was denied.
- The court held the agent’s inspection of directories and files, including image files, was a reasonable method of executing the intrusion warrant and did not exceed its scope.
- The court held the child pornography was discovered in plain view during a lawful search and was not subject to suppression.
- The court held the intrusion and child-pornography offenses were improperly joined under Rule 8(a).
- The court ordered separate trials; alternatively, severance was warranted under Rule 14 due to the risk of prejudicial spillover from the child-pornography evidence.

## Legal Principles

- A warrant to search a computer for specified evidence may permit a systematic examination of directories and files when file names or formats are unreliable indicators of content.
- Under the plain-view doctrine, officers may seize evidence of another crime when (i) they are lawfully executing a search, and (ii) the incriminating nature of the evidence is immediately apparent upon lawful observation.
- Offenses may be joined under Rule 8(a) only if they are of the same or similar character, based on the same act or transaction, or connected as parts of a common scheme or plan.
- Even when joinder is arguable, Rule 14 requires severance when a joint trial would create substantial unfair prejudice, including prejudice from inflammatory evidence unrelated to other counts.

## Conclusion

The court admitted child-pornography evidence found during a lawful, methodical computer search under an intrusion warrant because it was within the search’s reasonable scope and discovered in plain view, but it required the child-pornography count to be tried separately from the computer-intrusion counts because joinder was improper and, in any event, would unduly prejudice the jury.


United States v. Gray, 78 F. Supp. 2d 524 (E.D. Va. 1999)