Ninth Circuit Remands Child Pornography Distribution Case for Discovery Problems – U.S. v. Budziak
People accused of distributing child pornography online are frequently discovered through an online file-sharing program. These “peer to peer” file-sharing networks permit individuals to connect to one another’s computers directly, without going through a central server, making them attractive to people who have something to hide—but for the same reason, they are frequently searched by law enforcement officers. In United States v. Budziak, Max Budziak was found via the file-sharing program LimeWire and later convicted of child pornography possession and distribution. His appeal included an argument that the court should have required sharing of the software during discovery, and the Ninth U.S. Circuit Court of Appeals agreed.
Two different federal agents found Budziak through online file-sharing in early June of 2007. In the ensuing July 14 search of Budziak’s home, FBI agents seized and searched Budziak’s computer and found child pornography and LimeWire on the hard drive. The files associated with LimeWire suggested that Budziak had not changed the default behavior of LimeWire, which is to share files in certain folders. After his indictment, Budziak moved to suppress the search evidence, saying it contained false statements and material omissions about LimeWire, but the district court dismissed without prejudice, explaining the difference between the publicly available LimeWire (which pieces together files from many users) and the special software the FBI uses (which takes an entire file from one user). The court invited Budziak to file a discovery motion if he wished to examine the FBI software, and Budziak did so—but the district court denied each motion, and later denied a renewed motion to suppress. After his jury trial and conviction, Budziak appealed.
The Ninth Circuit ultimately agreed that Budziak should have been permitted to discover the FBI software, though it disagreed with several other arguments he made on appeal. After dispensing with arguments on insufficient evidence, alleged juror misconduct and erroneous jury instructions, the Ninth did find error in the discovery denials, saying the software was material to Budziak’s defense. His requests identified defenses that the information would help him develop and were not vague, the court said. The government contended that the logs it did provide the defense showed that the information would not help Budziak, but Budziak’s expert testified otherwise—and defendants should not have to take the government’s word when preparing a defense, the court said. It found that the discovery denials were an abuse of discretion and sent the case back to trial court, not for a retrial, but for a determination of whether the requested materials could have changed the outcome of the trial.
Interestingly, the Ninth also ruled in this case that evidence of distribution of child pornography is sufficient when the defendant shared files online knowing that other people could download them, and then at least one person did download them. That was an issue of first impression in the Ninth Circuit, but it has already been settled in the same way in the First, Eighth and Tenth Circuits. This means the accused may not defend themselves by showing that they did not actively transfer the files; a showing of passive transfer is enough. However, the court did leave the door open for a defense to criminal charges arguing that the defendant did not know the material was shared, which may be of interest to defendants who are less familiar with computers.
If you’re accused of child pornography crimes, you’re facing serious charges that could hurt your family, your job, your finances and your good reputation—even if you’re never convicted. To speak to an experienced cyber crime attorney about your case and your legal options, call Seltzer Law, P.A., today at 1-888-THE-DEFENSE (1-888-843-3333) or send us a message online.
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