Monday, October 08, 2012

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

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at


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