This is another post about a case in which a defendant
sought discovery concerning the EP2P software, which the Federal Bureau of
Investigation uses in at least some online investigations. The case is U.S. v. Budziak, __ F3d __, 2012 WL 4748704 (U.S. Court of Appeals
for the 9th Circuit 2012), and this is how it arose:
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.
U.S. v. Budziak,
supra.
As to the software, the opinion explains that,
[a]ccording 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.
U.S. v. Budziak, supra.
Getting back to the facts, FBI Special Agent Wade Luders used
information he received from Agent Lane to obtain
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 Lane had downloaded
on June 6, and five of the images Whisman had downloaded on June 14.
None of the files had a creation date
pre-dating July 2, 2007. The FBI also examined the `properties’ file of the
LimeWire software installed on Budziak's computer and concluded that the
default settings had not been altered. LimeWire's default settings allow for
file-sharing with other users.
U.S. v. Budziak,
supra.
On April 30, 2008, a federal grand jury indicted Budziak on
two counts of distributing child pornography and one count of possessing
material containing a visual depiction of a minor engaging in sexually explicit
conduct. U.S. v. Budziak, supra. He filed a motion to suppress, “arguing that
the affidavit supporting the warrant to search his residence contained false
statements and material omissions about the LimeWire software and its uses.” U.S. v. Budziak, supra.
The government responded by submitting “a declaration by
Luders, which outlined the differences between the publicly available LimeWire
software and the FBI's EP2P program.” U.S.
v. Budziak, supra. The district court judge denied Budziak's motion to
suppress, instructing “him to file a discovery motion if he wished to review
the EP2P software.” U.S. v. Budziak,
supra. Budziak filed “three
successive motions . . . seeking discovery on the specifications of the FBI's
EP2P software or a copy of the program.”
U.S. v. Budziak, supra. After
the judge denied the motions, Budziak “filed a renewed motion to suppress,”
which the judge also denied. U.S. v. Budziak, supra.
The case went to trial on January 10, 2011. U.S. v. Budziak, supra. Agents Lane,
Whisman and Luders testified about their investigations and the search of
Budziak's residence. U.S. v. Budziak,
supra. The prosecution also presented testimony from
Special Agent Michael Gordon, an expert
witness on the use of EP2P. . . . Gordon. . . . testified that LimeWire's
default setting is to save files downloaded through the program into a `shared’
folder, and to make files stored in that folder available for download by other
users. He testified that LimeWire provides an option for users to disable the
sharing function so other users cannot download their files.
On cross-examination, he testified that
it was possible that a user could accidentally share files through LimeWire
that he wanted to keep private, if he was not familiar with the program. Gordon
also testified about the FBI's EP2P software and its capabilities. He testified
that EP2P allows the FBI to download files from a single user, but it does not
enable the FBI to override a user's settings to look at or download files not
designated for sharing.
U.S. v. Budziak,
supra.
The jury convicted Budziak on all three counts and the judge
sentenced him to “60 months of imprisonment, followed by five years of
supervised release.” U.S. v. Budziak, supra. Budziak appealed. U.S. v.
Budziak, supra. Budziak raised several
arguments on appeal, but we are only concerned with one of them. He claimed the district court judge “erred in
denying him discovery on the FBI’s EP2P software.” U.S. v.
Budziak, supra.
The Court of Appeals began its analysis of Budziak’s
argument by explaining that under Rule 16 of the Federal Rules of Criminal
Procedure, a criminal defendant has the right to
inspect all documents, data, or
tangible items within the government's `possession, custody, or control’ that
are `material to preparing the defense.’ Rule 16(a)(1)(E). Evidence is
`material’ under Rule 16 if it is helpful to the development of a
possible defense. . . .
A defendant must make a `threshold
showing of materiality’ in order to compel discovery pursuant to Rule
16(a)(1)(E). U.S. v. Santiago, 46 F.3d 885 (U.S. Court of
Appeals for the 9th Cir.1995). `Neither a general description of the
information sought nor conclusory allegations of materiality suffice; a
defendant must present facts which would tend to show the Government is in
possession of information helpful to the defense.’ U.S. v. Mandel, 914
F.2d 1215 (U.S. Court of Appeals for the 9th Cir.1990).
U.S. v. Budziak,
supra.
Budziak argued that when he sought discovery prior to trial,
he made “a sufficient showing that discovery of the EP2P software was material
to preparing his defense”, and the Court of Appeals agreed. U.S. v. Budziak, supra. It explained that
[a]ll 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.
In support of his first two motions to
compel, 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 Agents Lane or Whisman. . . . In support of his third
motion to compel, Budziak submitted evidence suggesting that the FBI agents
could have used the EP2P software to override his sharing settings.
U.S. v. Budziak,
supra.
The court also explained that
[m]uch of the evidence the prosecution
presented at trial was devoted to describing EP2P and the FBI's use of the
program. Although Budziak had an opportunity to cross-examine the government's
EP2P expert, he was denied background material on the software that could have
enabled him to pursue a more effective examination.
As the [U.S. Court of Appeals for the
3d Circuit] has held, `A party seeking to impeach the reliability of computer
evidence should have sufficient opportunity to ascertain by pretrial discovery
whether both the machine and those who supply it with data input and
information have performed their tasks accurately.’ U.S. v. Liebert, 519
F.2d 542 (U.S. Court of Appeals for the 3d Circuit 1975).
U.S. v. Budziak,
supra.
It also noted that although the prosecution argued that the
computer logs it gave
Budziak
demonstrated that he would not uncover any helpful information through discovery
of the software, the declarations of Budziak's computer forensics expert stated
otherwise. In cases where the defendant has demonstrated
materiality, the district court should not merely defer to government
assertions that discovery would be fruitless.
While we have no reason to doubt the
government's good faith in such matters, criminal defendants should not have to
rely solely on the government's word that further discovery is unnecessary.
This is especially so where, as here, a charge . . . is predicated largely on
computer software functioning in the manner described by the government, and
the government is the only party with access to that software.
Accordingly, we
hold that it was an abuse of discretion for the district court to deny Budziak
discovery on the EP2P program.
U.S. v. Budziak,
supra.
The fact that the district court judge abused his discretion
in denying Budziak’s requests for discovery was not, however, enough to warrant
reversing his conviction. As the Court
of Appeals noted, in order to have his conviction reversed,
Budziak must show not only that the
district court abused its discretion, but also that there is a likelihood that
the outcome of the trial would have been different if discovery had been
granted. . . . `This he cannot do, because the Government has never surrendered
the materials for review.’ U.S. v. Stever, 603 F.3d 747 (U.S. Court of Appeals for the 9th Circuit
2010). Because the EP2P evidence Budizak requested is not
part of the appellate record, it is impossible for us to determine whether the
result of Budziak's trial would have been different if it had been disclosed to
him. . . .
We therefore remand this 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.’ U.S. v.
Stever, supra. If the district court determines that the EP2P discovery
could have affected the outcome of the trial, it shall order a new trial; if
the court determines the nondisclosure was harmless, it may reinstate the
judgment of conviction. . . .
We leave to the district court to
determine in the first instance whether, on remand, a protective order or
an in camera hearing is necessary to accommodate any law
enforcement confidentiality concerns.
U.S. v. Budziak,
supra.
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