Metropolitan News-Enterprise


Tuesday, October 9, 2012


Page 1


Ninth Circuit Cites Discovery Denial, Says Defendant Entitled to New Hearing in Child Pornography Case


By a MetNews Staff Writer


The Ninth U.S. Circuit Court of Appeals Friday ordered a new hearing in the case of a San Jose man convicted of using a file-sharing program that makes images available to other users.

The panel said Senior U.S. District Judge Ronald M. Whyte erred in denying Max Budziak’s requests for discovery regarding the sophisticated software that FBI agents used to download images from his home computer after it had been seized. On remand, Senior Judge A. Wallace Tashima explained, the FBI must provide the defense with specifications for the software, or a copy of the program.

In order to have the conviction and five-year sentence set aside and obtain a new trial, however, Budziak must show a likelihood that he would have obtained a more favorable verdict if he had been provided with the materials before trial, Tashima said.

Budziak was convicted in January of last year in the U.S. District Court for the Northern District of California. He was 66 years old at the time, according to a press release from the office of U.S.  Attorney Melinda Haag.

The indictment charged that Budziak illegally distributed child pornography images on two separate dates in June 2007 and illegally possessed child pornography images and videos on July 24, 2007, the date FBI agents raided his home and seized his computer. The images involved in the distribution counts had been downloaded from an IP address registered to Budziak, by agents using E2P2.

The program, Tashima explained, “is an enhanced version of LimeWire, a publicly available peer-to-peer file-sharing program that allows users to search for and download files stored on other users’ computers.” Agents using EP2P can “view all files that a particular user on the file-sharing network is making available for download by other users at a given time,” the judge wrote, and can apparently download complete files from a single user.

The publicly available version of LimeWire which Budziak had on his computer typically downloads files by piecing together file fragments from multiple users, the judge explained.

Tashima said Budziak and his attorneys should have been granted discovery in order to press their claim that the file-sharing capability had been disabled, so that no distribution occurred.

“…Budziak presented evidence suggesting that the FBI may have only downloaded fragments of child pornography files from his  ‘incomplete’ folder, making it ‘more likely’ that he did not knowingly distribute any complete child pornography files to” the FBI agents, Tashima said. He also noted that the defendant “submitted evidence suggesting that the FBI agents could have used the EP2P software to override his sharing settings.”

The panel, however, rejected Budziak’s other claims of error, agreeing with prosecutors, and with other circuits, that a user of file-sharing software may be found guilty of distributing, rather than merely possessing, child pornography.  

The court also held that technically sophisticated jurors did not engage in misconduct by sharing their understanding of the LimeWare program with their fellow panelists, since those comments were matters of personal experience and not extrinsic evidence.

Judges Richard R. Clifton and Mary H. Murguia concurred in the opinion.

The case is United States v. Budziak, 11-10223.


Copyright 2012, Metropolitan News Company