Court: Having Child Porn In A Shared Folder Is Distribution

Last week, the Ninth Circuit Court of Appeals issued an interesting opinion concerning a not-so-savory topic. In 2011, a federal jury found defendant Max Budziak guilty of possession and distribution of child pornography. He was sentenced to five years in prison, to be followed by five years of supervised release. On appeal, Budziak argued that he should not have been charged with “distribution”. Budziak had been using the peer-to-peer file-sharing program Limewire, and says he was unaware that the offending material was stored in a shared folder, from where other Limewire users could download it. He did not contest his conviction on the grounds of possession. As the opinion [PDF] states, his main argument was:

Budziak argues that evidence of a deliberate, affirmative action of delivery is required to support a conviction for distribution. According to Budziak, evidence that he stored child pornography in a shared folder that was accessible to other LimeWire users is insufficient to support a conviction for distribution because it is evidence of no more than passive possession.

Unfortunately for Budziak, the Ninth Circuit disagreed, based on similar outcomes from other circuits. Specifically, the First, Eighth and Tenth Circuits have all addressed this very particular issue, and all found that their respective defendants had indeed been guilty of distribution.

Budziak did, however, earn a significant reprieve from the Appeals Court, and it’s discovery-related. The court found that he had requested information about the EP2P computer system the FBI used in catching him, but this information was never provided. The FBI said that this info was irrelevant. But from the opinion:

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.

The defendant argued that this information could prove that the FBI was able to override his own settings, and that may have affected his distribution conviction. The court agreed on this point, and remanded the case, concluding:

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 that the nondisclosure was harmless, it may reinstate the judgment of conviction.

So this is an unusual outcome, where the court disagreed with the defendant’s primary argument, but has temporarily allowed him off the hook on a evidentiary technicality.