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USA v. Budziak

USA v. Budziak

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Published by Adriana Perez

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Published by: Adriana Perez on Oct 09, 2012
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FOR PUBLICATION
UNITED STATES COURT OF APPEALSFOR THE NINTH CIRCUIT
 
U
NITED
S
TATES OF
A
MERICA
,No. 11-10223
Plaintiff-Appellee,
DC No.v.
CR 08-0284 RMWM
AX
B
UDZIAK
,OPINION
 Defendant-Appellant.
Appeal from the United States District Courtfor the Northern District of CaliforniaRonald M. Whyte, Senior District Judge, PresidingArgued and SubmittedJuly 17, 2012—San Francisco, CaliforniaFiled October 5, 2012Before: A. Wallace Tashima, Richard R. Clifton, andMary H. Murguia, Circuit Judges.Opinion by Judge Tashima
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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.
12142U
NITED
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TATES
v. B
UDZIAK
 
§§ 2252(a)(2)(A) and 2252(b)(1), and one count of possessingchild pornography in violation of 18 U.S.C. §§ 2252(a)(4)(B)and 2252(b)(2). Budziak contends that the evidence presentedat trial was insufficient to convict him of distribution. He alsoasserts that the district court incorrectly instructed the jury onthe definition of distribution, erroneously denied his motionfor a new trial, and improperly denied him discovery on soft-ware that the Federal Bureau of Investigation (“FBI”) used inits investigation into his online file-sharing activities. Wehave jurisdiction pursuant to 28 U.S.C. § 1291. We hold thatthe district court erred in denying Budziak’s discoveryrequests, but deny the remainder of Budziak’s challenges tohis conviction.
I.
On June 6, 2007, FBI Special Agent Stacie Lane down-loaded several images containing child pornography from anInternet 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 IPaddress registered to Budziak. Both Lane and Whisman usedan FBI computer program called “EP2P” to search for thechild 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 storedon other users’ computers. EP2P purportedly allows the FBIto view all files that a particular user on the file-sharing net-work is making available for download by other users at agiven time. While the publicly available version of LimeWiretypically downloads files by piecing together file fragmentsfrom multiple users, the enhanced EP2P software purportedlyallows the FBI to download complete files from a single user.Based on information he received from Agent Lane, FBISpecial Agent Wade Luders obtained a warrant to search
12143U
NITED
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TATES
v. B
UDZIAK

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