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Convict Wins Appeal Based on EP2P Discovery Claim

By Robyn Hagan Cain | Last updated on

A discovery denial could result in an overturned conviction.

Last week, the Ninth Circuit Court of Appeals remanded a defendant's child pornography conviction to a district court based on the trial court's discovery errors.

Max Budziak appealed his convictions for distributing and possessing child pornography on multiple grounds, His only successful argument was that the trial court improperly denied him discovery on software that the FBI used in its investigation into his online file-sharing activities.

While executing a warrant for Budziak's home, FBI agents seized a computer containing child pornography and an installed copy of the LimeWire file sharing program from Budziak's home. Agents used an FBI computer program called EP2P to search for the child pornography files and to download them.

A grand jury indicted Budziak on child pornography charges. Budziak filed a motion to suppress the evidence, arguing that the affidavit supporting the warrant to search his residence contained 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. 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.

The court denied Budziak's motion to suppress, and instructed him to file a discovery motion if he wished to review the EP2P software.

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.

Under Rule 16, a criminal defendant has a right to inspect all documents, data, or tangible items within the government's "possession, custody, or control" that are "material to preparing the defense." Federal courts review Rule 16 discovery objections for abuse of discretion. A defendant must make a "threshold showing of materiality" in order to compel discovery.

Budziak argued that he made a sufficient showing that discovery of the EP2P software was material to preparing his defense. The Ninth Circuit Court of Appeals agreed, noting that 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 identified specific defenses to the distribution charge that discovery on the EP2P program could potentially help him develop.

While there wasn't enough evidence about the EP2P software in the record for the Ninth Circuit to reverse Budziak's conviction, the court remanded his 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."

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