Case o' The Week: Distribution Revolution -- Budziak and Child Porn Distribution
Is Limewire, Morpheus, uTorrent, Gnutella, FrostWire, Shareaza, Ares, RapidShare or Vuze on your client’s computer, in a child porn prosecution?
Read this new opinion, deciding an issue of first impression in the Ninth. United
States v. Budziak, 2012 WL 4748704 (9th Cir. Oct. 5, 2012),
decision available here.
Players: Decision by Judge Tashima. Hard-fought appeal by ND Cal CJA
Attorney John Jordan.
Facts: Agents used an FBI program called “EP2P”
to search for child porn. Id. at *1.
The program is an enhanced version of Limewire, and allows agents to download
complete images (instead of the fragments pieced together from a Limewire
search). Id.; see also blog entry here, describing EP2P.
The agents found porn at an IP
address associated with Budziak; a later search of his house revealed a
computer with Limewire, and child porn videos. Id. Budziak was convicted after trial of distribution of child porn.
Id. at *2.
Issue(s): “Budziak contends that the
evidence presented at trial was insufficient to convict him of distribution.” Id. at *1. “Budziak argues that evidence
of a deliberate, affirmative action of delivery is required to support a
conviction for distribution. According to Budziak, evidence that he stored child pornography in a shared
folder that was accessible to other LimeWire users is insufficient to support a
conviction for distribution because it is evidence of no more than passive
possession. Although Budziak presents a question of first impression in this
circuit, our sister circuits have considered—and rejected—the argument he
asserts here.” Id. at *3.
Held: “Following
the First, Eighth, and Tenth Circuits, we hold that the evidence is sufficient
to support a conviction for distribution under 18 U.S.C. § 2252(a)(2) when it
shows that the defendant maintained child pornography in a shared folder, knew that
doing so would allow others to download it, and another person actually
downloaded it. Id. at *3. “We
conclude that the evidence was sufficient to support the jury's finding that
Budziak distributed files containing child pornography by maintaining them in a
shared folder accessible to other LimeWire users.” Id.
Of Note: The FBI hacked Limewire into “EP2P,”
used it to find the porn, then refused to disclose the software at Budziak’s
trial -- making it impossible to challenge. Seems unfair, doesn’t it? Judge
Tashima agrees. Id. at *6. In a
welcome corner of the decision, Judge Tashima explains that in “cases where the
defendant has demonstrated materiality, the district court should not merely defer
to government assertions that discovery would be fruitless. While we have no
reason to doubt the government's good faith in such matters, criminal
defendants should not have to rely solely on the government's word that further
discovery is unnecessary. This is especially so where, as here, a charge
against the defendant is predicated largely on computer software functioning in
the manner described by the government, and the government is the only party
with access to that software. Accordingly, we hold that it was an abuse of
discretion for the district court to deny Budziak discovery on the EP2P
program.” Id. at *7. Great language to
work into a discovery motion.
How to
Use: Budziak
means this: worry when you see Limewire (or BitTorrent, or any other
file-sharing software) on a client’s machine. Distribution of child porn is a five-year mandatory-minimum charge
(versus possession, which has no mand-min).
Budziak may be distinguishable if
your client was a true n00b unaware of the sharing nature of this software, id. at *4, but it’s a tough argument before
a jury confronting child porn.
For
Further Reading: Must a jury find an enhancement fact
that creates a mandatory minimum sentence? A decade ago, the Supremes said “no,”
in the extraordinarily disappointing (and close) Harris decision. Last Friday, the Court granted cert. on Alleyne, which raises the issue again
with a different set of Justices (and with Justice Breyer, who has publicly signaled reconsideration of his critical Harris vote).
Alleyne
could signal another wave in the Apprendi
revolution: SEEK ALLEYNE INSTRUCTIONS
in mand-min cases and objections!
For a good post describing this important development,
visit the Sotusblog here.
Image of
Limewire with noose from http://blog.optimum7.com/safon/interactive-media/limewire-pays-105-million-for-copyright-infringement.html
Steven
Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org
.
Labels: 18 USC 2252, Apprendi, Child Pornography, Tashima
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