Appeal from the United States District Court for the Northern District of California Ronald M. Whyte, Senior District Judge, Presiding DC No. CR 08-0284 RMW
The opinion of the court was delivered by: Tashima, Circuit Judge:
July 17, 2012-San Francisco, California
Before: A. Wallace Tashima, Richard R. Clifton, and Mary H. Murguia, Circuit Judges.
Max Budziak appeals his jury conviction on two counts of distributing child pornography in violation of 18 U.S.C. §§ 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 software 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.
On June 6, 2007, FBI Special Agent Stacie Lane downloaded several images containing child pornography from an Internet Protocol ("IP") address registered to Max Budziak. On June 14, 2007, FBI Special Agent Richard Whisman conducted 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 program 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 network 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 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 ...