United States v. Max Budziak , 697 F.3d 1105 ( 2012 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 11-10223
Plaintiff-Appellee,
v.  DC No.
CR 08-0284 RMW
MAX BUDZIAK,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the Northern District of California
Ronald M. Whyte, Senior District Judge, Presiding
Argued and Submitted
July 17, 2012—San Francisco, California
Filed October 5, 2012
Before: A. Wallace Tashima, Richard R. Clifton, and
Mary H. Murguia, Circuit Judges.
Opinion by Judge Tashima
12139
12142 UNITED STATES v. BUDZIAK
COUNSEL
Martine Cicconi, Criminal Division, U.S. Department of Jus-
tice, Washington, DC, for the plaintiff-appellee.
John J. Jordan, San Francisco, California, for the defendant-
appellant.
OPINION
TASHIMA, Circuit Judge:
Max Budziak appeals his jury conviction on two counts of
distributing child pornography in violation of 18 U.S.C.
UNITED STATES v. BUDZIAK 12143
§§ 2252(a)(2)(A) and 2252(b)(1), and one count of possessing
child pornography in violation of 18 U.S.C. §§ 2252(a)(4)(B)
and 2252(b)(2). Budziak contends that the evidence presented
at trial was insufficient to convict him of distribution. He also
asserts that the district court incorrectly instructed the jury on
the definition of distribution, erroneously denied his motion
for a new trial, and improperly denied him discovery on soft-
ware that the Federal Bureau of Investigation (“FBI”) used in
its investigation into his online file-sharing activities. We
have jurisdiction pursuant to 28 U.S.C. § 1291. We hold that
the district court erred in denying Budziak’s discovery
requests, but deny the remainder of Budziak’s challenges to
his conviction.
I.
On June 6, 2007, FBI Special Agent Stacie Lane down-
loaded several images containing child pornography from an
Internet Protocol (“IP”) address registered to Max Budziak.
On June 14, 2007, FBI Special Agent Richard Whisman con-
ducted a search for child pornography on an online file-
sharing network that led him to download 52 files from an IP
address registered to Budziak. Both Lane and Whisman used
an FBI computer program called “EP2P” to search for the
child pornography files and to download them.
According to the FBI, EP2P is an enhanced version of
LimeWire, a publicly available peer-to-peer file-sharing pro-
gram that allows users to search for and download files stored
on other users’ computers. EP2P purportedly allows the FBI
to view all files that a particular user on the file-sharing net-
work is making available for download by other users at a
given time. While the publicly available version of LimeWire
typically downloads files by piecing together file fragments
from multiple users, the enhanced EP2P software purportedly
allows the FBI to download complete files from a single user.
Based on information he received from Agent Lane, FBI
Special Agent Wade Luders obtained a warrant to search
12144 UNITED STATES v. BUDZIAK
Budziak’s residence. On July 14, 2007, FBI agents executed
the warrant. During their search of Budziak’s home, agents
discovered a desktop computer containing child pornography
and an installed copy of the LimeWire program. The FBI
seized the computer and conducted a forensic examination of
its hard drive.
The FBI’s examination of the hard drive revealed that five
videos containing child pornography were saved on it in a
folder labeled “shared.” Files containing child pornography
were also saved in other folders, including files containing
two of the images Agent Lane had downloaded on June 6, and
five of the images Agent Whisman had downloaded on June
14. None of the files had a creation date pre-dating July 2,
2007. The FBI also examined the “properties” file of the
LimeWire software installed on Budziak’s computer and con-
cluded that the default settings had not been altered.
LimeWire’s default settings allow for file-sharing with other
users.
On April 30, 2008, a grand jury returned an indictment
charging Budziak with two counts of distribution of child por-
nography and one count of possession of material containing
a visual depiction of a minor engaging in sexually explicit
conduct. Budziak filed a motion to suppress, arguing that the
affidavit supporting the warrant to search his residence con-
tained false statements and material omissions about the
LimeWire software and its uses. In response, the government
submitted a declaration by Agent Luders, which outlined the
differences between the publicly available LimeWire software
and the FBI’s EP2P program. The court denied Budziak’s
motion to suppress without prejudice, and instructed him to
file a discovery motion if he wished to review the EP2P soft-
ware. Budziak then filed three successive motions to compel,
seeking discovery on the specifications of the FBI’s EP2P
software or a copy of the program. The district court denied
each of those motions. Budziak subsequently filed a renewed
motion to suppress, which the district court again denied.
UNITED STATES v. BUDZIAK 12145
The jury trial began on January 10, 2011. The government
presented the testimony of Agents Lane, Whisman, and
Luders who testified about their investigations and the search
of Budziak’s residence. Additionally, the government pre-
sented the testimony of Special Agent Michael Gordon, an
expert witness on the use of EP2P in FBI investigations.
Agent Gordon testified about the LimeWire program and its
functions. He testified that LimeWire’s default setting is to
save files downloaded through the program into a “shared”
folder, and to make files stored in that folder available for
download by other users. He testified that LimeWire provides
an option for users to disable the sharing function so other
users cannot download their files. On cross-examination, he
testified that it was possible that a user could accidentally
share files through LimeWire that he wanted to keep private,
if he was not familiar with the program. Agent Gordon also
testified about the FBI’s EP2P software and its capabilities.
He testified that EP2P allows the FBI to download files from
a single user, but it does not enable the FBI to override a
user’s settings to look at or download files not designated for
sharing.
Budziak presented no witnesses at trial. At the close of the
government’s case in chief, Budziak moved for a judgment of
acquittal as to the two distribution counts. The district court
denied the motion. The jury convicted Budziak on all three
counts alleged in the indictment. Prior to sentencing, Budziak
filed a motion for a new trial or judgment of acquittal, based
on juror misconduct. The district court denied the motion and
sentenced Budziak to 60 months of imprisonment, followed
by five years of supervised release.
II.
Budziak contends that there was insufficient evidence pre-
sented at trial to sustain his conviction for distribution of child
pornography. We review the sufficiency of the evidence sup-
porting a defendant’s conviction de novo. United States v.
12146 UNITED STATES v. BUDZIAK
Green, 592 F.3d 1057, 1065 (9th Cir. 2010). We will affirm
the conviction unless, viewing the evidence in the light most
favorable to sustaining the verdict, no rational trier of fact
could have found the essential elements of the crime beyond
a reasonable doubt. United States v. Nevils, 598 F.3d 1158,
1164 (9th Cir. 2010) (en banc).
[1] Budziak argues that evidence of a deliberate, affirma-
tive 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. See United
States v. Chiaradio, 684 F.3d 265, 281-82 (1st Cir. 2012);
United States v. Shaffer, 472 F.3d 1219, 1223 (10th Cir.
2007); see also United States v. Christy, 65 M.J. 657, 664-65
(Army Ct. Crim. App. 2007).
In Shaffer, the defendant argued that there was insufficient
evidence to convict him for distribution of child pornography
because he did not actively transfer possession of any child
pornography “by mail, e-mail, or handing it to another per-
son.” 472 F.3d at 1223 (internal quotation marks omitted).
The Tenth Circuit disagreed, concluding that he engaged in
distribution when he left images and videos containing child
pornography on his computer and freely allowed other users
to download those items through the file-sharing program
Kazaa. Id. at 1223-24. The court compared Shaffer’s distribu-
tion of child pornography to a self-service gas station owner’s
distribution of gasoline: “The owner may not be present at the
station . . . . [a]nd neither the owner nor his or her agents may
ever pump gas . . . . [but] we do not doubt for a moment that
the gas station owner is in the business of ‘distributing[ ]’ . . .
gasoline . . . .” Id. at 1223-24.
UNITED STATES v. BUDZIAK 12147
[2] 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. Chiaradio, 684
F.3d at 281-82; United States v. Collins, 642 F.3d 654, 656-57
(8th Cir. 2011); Shaffer, 472 F.3d at 1223. This definition of
“distribution” is consistent with the plain meaning of the
word. Shaffer, 472 F.3d at 1223 (“We have little difficulty in
concluding that Mr. Shaffer distributed child pornography in
the sense of having ‘delivered,’ ‘transferred,’ ‘dispersed,’ or
‘dispensed’ it to others.”).
[3] We conclude that the evidence was sufficient to sup-
port the jury’s finding that Budziak distributed files contain-
ing child pornography by maintaining them in a shared folder
accessible to other LimeWire users. Although Budziak argues
before this Court that he disabled the sharing function on his
LimeWire software, he did not present evidence of that asser-
tion to the jury. The government, on the other hand, presented
evidence that file-sharing was enabled on Budziak’s
LimeWire program when they seized his computer; that there
were multiple files containing child pornography in Budziak’s
shared folder when they seized the computer; that Budziak
initially told FBI agents he had not changed the default set-
tings on his LimeWire program; and that agents actually
downloaded shared files containing child pornography from
an IP address registered to Budziak in June 2007. Viewing the
evidence in the light most favorable to the verdict, a reason-
able jury could have found beyond a reasonable doubt that
Budziak shared — and thus distributed — child pornography
through LimeWire.
The evidence was also sufficient to support a finding that
Budziak knew that he was sharing files containing child por-
nography. At trial, the government presented evidence indi-
cating that Budziak was familiar with LimeWire and how it
12148 UNITED STATES v. BUDZIAK
functioned. It presented evidence that he had installed the lat-
est version of the program; that he used the program to down-
load files with some frequency; and that he knew enough
about the program’s functions to tell an FBI agent that he
moved files out of the shared folder to other parts of his com-
puter. A reasonable jury could have found beyond a reason-
able doubt that Budziak’s technical knowledge and familiarity
with LimeWire demonstrated that he knew he was sharing
files. See Collins, 642 F.3d at 656-57 (upholding distribution
conviction where government presented evidence that defen-
dant was knowledgeable about his computer); United States
v. Durham, 618 F.3d 921, 928-29 (8th Cir. 2010) (distribution
enhancement was not warranted because there was no evi-
dence of defendant’s knowledge that other LimeWire users
could obtain files from his computer, nor evidence of his
familiarity with the program).
III.
[4] Budziak contends that the instruction the district court
gave to the jury on distribution was erroneous, because it did
not require the jury to find that he personally took affirmative
steps to send child pornography to another person. The gov-
ernment argues that this claim is unreviewable under the “in-
vited error” doctrine because Budziak failed to object to the
instruction before the district court. The “invited error” doc-
trine does not apply here. An error is “invited” and unreview-
able only if a defendant “induced or caused the error,” or if
he “intentionally relinquished or abandoned a known right.”
United States v. Perez, 116 F.3d 840, 845 (9th Cir. 1997) (en
banc). In contrast to other cases where we have found that the
defendant invited an error in a jury instruction, the record here
does not reflect that Budziak intentionally abandoned or
rejected the element of the distribution instruction he now
asserts the court should have included. See United States v.
Baldwin, 987 F.2d 1432, 1437 (9th Cir. 1993) (government
offered omitted instruction, but defendant rejected it); United
States v. Guthrie, 931 F.2d 564, 567 (9th Cir. 1991) (trial
UNITED STATES v. BUDZIAK 12149
court offered to give omitted instruction, but defendant
rejected the offer). We review the district court’s instruction
for plain error. Perez, 116 F.3d at 846.
[5] The district court instructed the jury that in order to
find Budziak guilty, it would have to find that he “knowingly
distributed” child pornography. The court defined “distribu-
tion” as “delivering, transferring, dispersing, or dispensing
something to others,” and instructed the jury that
“[d]istribution includes allowing electronic access to an image
or video stored on one’s computer and then the image or
video is downloaded by another person.” The district court’s
instruction was not plainly erroneous. Until now, this Court
had not yet resolved the issue of when the use of a file-sharing
program constitutes “distribution.” Accordingly, any error on
the district court’s part cannot be deemed to have been plain.
See United States v. Gonzalez-Aparicio, 663 F.3d 419, 428
(9th Cir. 2011) (“To be plain, the error must be clear or obvi-
ous, and an error cannot be plain where there is no controlling
authority on point and where the most closely analogous pre-
cedent leads to conflicting results.” (internal quotation marks
and citation omitted)). Moreover, the district court’s defini-
tion of distribution comported with the Tenth Circuit’s hold-
ing in Shaffer, 472 F.3d at 1223-24, which we adopt here.
IV.
Budziak argues that the district court erred in denying his
motion for a new trial based on juror misconduct without
holding an evidentiary hearing. We review the district court’s
ruling for abuse of discretion. United States v. Ruiz Montes,
628 F.3d 1183, 1187 (9th Cir. 2011); United States v.
Navarro-Garcia, 926 F.2d 818, 822 (9th Cir. 1991).
Budziak’s motion for a new trial or judgment of acquittal
argued that more technically sophisticated members of the
jury had improperly exposed other jurors to extraneous evi-
dence. The affidavit Budziak attached to his motion alleged
12150 UNITED STATES v. BUDZIAK
the following facts: After the jury returned its verdict, two
jurors spoke to defense counsel. They reported that during
deliberations, several of the more “computer savvy” jurors
speculated that Budziak may have re-installed his LimeWire
program, which they suggested could explain the lack of
forensic evidence of distribution of child pornography in June
2007.
When presented with an allegation of juror misconduct, a
trial court should ordinarily hold an evidentiary hearing to
hear admissible juror testimony and determine the precise
nature of the extraneous information. Ruiz Montes, 628 F.3d
at 1186. An evidentiary hearing is not required, however, if
the court is able to determine without a hearing that the alle-
gations if true would not warrant a new trial. Navarro-Garcia,
926 F.2d at 822. Here, the district court held that a new trial
would not be warranted even assuming the truth of the allega-
tions about the juror comments set forth in Budziak’s motion.
[6] The court did not abuse its discretion in denying Budz-
iak’s motion. The alleged juror comments referred not to
extraneous evidence, but to the jurors’ personal life experi-
ences with computers and with the LimeWire program. It is
well established that “a juror’s past personal experiences may
be an appropriate part of the jury’s deliberations.”
Grotemeyer v. Hickman, 393 F.3d 871, 879 (9th Cir. 2004)
(quoting Navarro-Garcia, 926 F.2d at 821 (internal quotation
marks omitted)); see also Price v. Kramer, 200 F.3d 1237,
1255-56 (9th Cir. 2000) (jurors’ accounts of their own experi-
ences with the police did not constitute extraneous evidence);
Hard v. Burlington N. R.R. Co., 812 F.2d 482, 486 (9th Cir.
1987) (“Jurors must rely on their past personal experiences
when hearing a trial and deliberating on a verdict.”). The dis-
trict court correctly determined that the alleged juror conduct
was not a legitimate subject of inquiry under the Federal
Rules of Evidence. See Fed. R. Evid. 606(b) (prohibiting
admission of juror testimony about jury deliberations, except
UNITED STATES v. BUDZIAK 12151
for evidence of extraneous prejudicial information); Hard,
812 F.2d at 485-86.
V.
Budziak contends that the district court erred in denying
him discovery on the FBI’s EP2P software. We review the
district court’s Rule 16 discovery rulings for abuse of discre-
tion. United States v. Stever, 603 F.3d 747, 752 (9th Cir.
2010).
[7] Under Rule 16, a criminal defendant has a right to
inspect all documents, data, or tangible items within the gov-
ernment’s “possession, custody, or control” that are “material
to preparing the defense.” Fed. R. Crim. P. 16(a)(1)(E). Evi-
dence is “material” under Rule 16 if it is helpful to the devel-
opment of a possible defense. United States v. Olano, 62 F.3d
1180, 1203 (9th Cir. 1995). A defendant must make a “thresh-
old showing of materiality” in order to compel discovery pur-
suant to Rule 16(a)(1)(E). United States v. Santiago, 46 F.3d
885, 894 (9th Cir. 1995). “Neither a general description of the
information sought nor conclusory allegations of materiality
suffice; a defendant must present facts which would tend to
show that the Government is in possession of information
helpful to the defense.” United States v. Mandel, 914 F.2d
1215, 1219 (9th Cir. 1990).
[8] Budziak argues that he made a sufficient showing that
discovery of the EP2P software was material to preparing his
defense. We agree. All three of Budziak’s motions to compel
provided more than a general description of the information
sought; they specifically requested disclosure of the EP2P
program and its technical specifications. Budziak also identi-
fied specific defenses to the distribution charge that discovery
on the EP2P program could potentially help him develop. In
support of his first two motions to compel, Budziak presented
evidence suggesting that the FBI may have only downloaded
fragments of child pornography files from his “incomplete”
12152 UNITED STATES v. BUDZIAK
folder, making it “more likely” that he did not knowingly dis-
tribute any complete child pornography files to Agents Lane
or Whisman. Stever, 603 F.3d at 753. In support of his third
motion to compel, Budziak submitted evidence suggesting
that the FBI agents could have used the EP2P software to
override his sharing settings.
[9] In United States v. Cedano-Arellano, 332 F.3d 568 (9th
Cir. 2003), we held that the defendant was entitled to discov-
ery on the narcotics detector dog that “alerted” on his gas
tank, id. at 570, because materials on the dog’s qualifications
“were crucial to his ability to assess the dog’s reliability, a
very important issue in his defense, and to conduct an effec-
tive cross-examination of the dog’s handler.” Id. at 571. Simi-
larly, access to the EP2P software was crucial to Budziak’s
ability to assess the program and the testimony of the FBI
agents who used it to build the case against him. Like the
competency of the drug-sniffing dog in Cedano-Arellano, the
functions of the EP2P software constituted a “very important
issue” for Budziak’s defense. Given that the distribution
charge against Budziak was premised on the FBI’s use of the
EP2P program to download files from him, it is logical to
conclude that the functions of the program were relevant to
his defense. Cf. Stever, 603 F.3d at 753.
Much of the evidence the prosecution presented at trial was
devoted to describing EP2P and the FBI’s use of the program.
Although Budziak had an opportunity to cross-examine the
government’s EP2P expert, he was denied background mate-
rial on the software that could have enabled him to pursue a
more effective examination. As the Third Circuit has held, “A
party seeking to impeach the reliability of computer evidence
should have sufficient opportunity to ascertain by pretrial dis-
covery whether both the machine and those who supply it
with data input and information have performed their tasks
accurately.” United States v. Liebert, 519 F.2d 542, 547-48
(3d Cir. 1975); see also United States v. Dioguardi, 428 F.2d
1033, 1038 (2d Cir. 1970) (“It is quite incomprehensible that
UNITED STATES v. BUDZIAK 12153
the prosecution should tender a witness to state the results of
a computer’s operations without having the program available
for defense scrutiny and use on cross-examination if
desired.”).
[10] Although the government argued that the computer
logs it provided Budziak demonstrated that he would not
uncover any helpful information through discovery of the
software, the declarations of Budziak’s computer forensics
expert stated otherwise.1 In cases where the defendant has
demonstrated materiality, the district court should not merely
defer to government assertions that discovery would be fruit-
less. 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 dis-
covery is unnecessary. This is especially so where, as here, a
charge against the defendant is predicated largely on com-
puter 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.
[11] To win reversal of his conviction, Budziak must show
not only that the district court abused its discretion, but also
that there is a likelihood that the outcome of the trial would
have been different if discovery had been granted. Stever, 603
F.3d at 754 (citing United States v. Chon, 210 F.3d 990, 994-
95 (9th Cir. 2000)). “This he cannot do, because the Govern-
1
This evidence distinguishes the instant case from Chiaradio, where the
First Circuit held that the defendant could not demonstrate prejudice
resulting from nondisclosure of the EP2P source code. 684 F.3d at 277.
In Chiaradio, the defendant “neither contradicted nor cast the slightest
doubt upon” the government’s testimony that the materials it had already
provided to him verified that an FBI agent downloaded files containing
child pornography from his computer. Id. In contrast, Budziak presented
arguments and evidence suggesting that the materials disclosed by the FBI
did not resolve all questions relevant to his defense.
12154 UNITED STATES v. BUDZIAK
ment has never surrendered the materials for review.” Id.
Because the EP2P evidence Budizak requested is not part of
the appellate record, it is impossible for us to determine
whether the result of Budziak’s trial would have been differ-
ent if it had been disclosed to him. Id. (“Without the actual
material, there is no way to judge prejudice.”); cf. United
States v. Alvarez, 358 F.3d 1194, 1209 (9th Cir. 2004) (“In
this situation, it is impossible for us to determine whether the
trial court abused its discretion by failing to release informa-
tion in the files, because the files are not part of the appellate
record.”); United States v. Bernal-Obeso, 989 F.2d 331, 336
(9th Cir. 1993) (“Because neither we nor the trial court know
what it is we are attempting to review, we cannot fulfill [our]
responsibility on this record.”).
[12] We therefore remand this case to the district court for
a determination on whether the EP2P materials Budziak
requested “in fact contain, or would have led to, information
that might have altered the verdict.” Stever, 603 F.3d at 754;
see also Pennsylvania v. Ritchie, 480 U.S. 39, 57 (1987)
(“Ritchie is entitled to have the [undisclosed evidence]
reviewed by the trial court to determine whether it contains
information that probably would have changed the outcome of
his trial”); Alvarez, 358 F.3d at 1209 (following Ritchie). If
the district court determines that the EP2P discovery could
have affected the outcome of the trial, it shall order a new
trial; if the court determines that the nondisclosure was harm-
less, it may reinstate the judgment of conviction. Ritchie, 480
U.S. at 58; Alvarez, 358 F.3d at 1209. We leave to the district
court to determine in the first instance whether, on remand, a
protective order or an in camera hearing is necessary to
accommodate any law enforcement confidentiality concerns.
See United States v. Spires, 3 F.3d 1234, 1238-39 (9th Cir.
1993).
VACATED and REMANDED.