United States v. Budziak

Allowing other users of a peer-to-peer network to access a shared file that contains child pornography is sufficient evidence to constitute distribution of child pornography under 18 U.S.C § 2252(a)(2).

Defendant was convicted of two counts distributing and one count possession of child pornography. The FBI used a modified peer-to-peer file sharing program, EP2P, to discover and download child pornography from the defendant’s computer. Defendant filed a motion to suppress, asserting that the affidavit in support of the warrant to search his home contained false and omitted information about the EP2P program. The government responded by submitting an explanation of how the EP2P software functioned and the trial judge denied defendant’s motion. Defendant filed a motion to compel the discovery of the precise specifications of the government’s file-share program or a copy of the program itself and the trial court denied those motions. On appeal, defendant argued that the state had failed as a matter of law to prove distribution because he did not affirmatively transfer child pornography to another person, that he was entitled to a new trial because “computer savvy” jurors influenced other jurors, and that the trial court erred in denying his motion to compel. The Ninth Circuit considered defendant’s first claim as a matter of first impression. The Court held that allowing users of a peer-to-peer network to access a shared file that contains child pornography is sufficient evidence to constitute distribution under 18 U.S.C § 2252(a)(2) and a jury instruction consistent with that definition was not plainly erroneous. The Court also rejected defendant’s assertion the trial court abused its discretion by denying his motion for a new trial because jurors are allowed to use their personal experience in deliberations. Finally, the Court found that the specifications of the EP2P program were material to defendant’s case and held that the trial court abused its discretion when it denied defendant’s motion to compel. VACATED and REMANDED.