FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

No. 11-10223 Plaintiff-Appellee,

DC No.

v.  CR 08-0284 RMW

MAX BUDZIAK,

OPINION Defendant-Appellant. 

Appeal from the United States District Court

for the Northern District of California

Ronald M. Whyte, Senior District Judge, Presiding

Argued and Submitted

July 17, 2012—San Francisco, California

Filed October 5, 2012

Before: A. Wallace Tashima, Richard R. Clifton, and

Mary H. Murguia, Circuit Judges.

Opinion by Judge Tashima

12139
COUNSEL

Martine Cicconi, Criminal Division, U.S. Department of Justice, Washington, DC, for the plaintiff-appellee.

John J. Jordan, San Francisco, California, for the defendantappellant.

OPINION

TASHIMA, Circuit Judge:

Max Budziak appeals his jury conviction on two counts of

distributing child pornography in violation of 18 U.S.C.

12142 UNITED STATES v. BUDZIAK
§§ 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.

I.

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 filesharing 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

UNITED STATES v. BUDZIAK 12143
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 downloaded on June 6, and

five of the images Agent 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.

On April 30, 2008, a grand jury returned an indictment

charging Budziak with two counts of distribution of child pornography and one count of possession of material containing

a visual depiction of a minor engaging in sexually explicit

conduct. Budziak 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. 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. The court denied Budziak’s

motion to suppress without prejudice, 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.

12144 UNITED STATES v. BUDZIAK
The jury trial began on January 10, 2011. The government

presented the testimony of Agents Lane, Whisman, and

Luders who testified about their investigations and the search

of Budziak’s residence. Additionally, the government presented the testimony of Special Agent Michael Gordon, an

expert witness on the use of EP2P in FBI investigations.

Agent Gordon testified about the LimeWire program and its

functions. He 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. Agent 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. 

Budziak presented no witnesses at trial. At the close of the

government’s case in chief, Budziak moved for a judgment of

acquittal as to the two distribution counts. The district court

denied the motion. The jury convicted Budziak on all three

counts alleged in the indictment. Prior to sentencing, Budziak

filed a motion for a new trial or judgment of acquittal, based

on juror misconduct. The district court denied the motion and

sentenced Budziak to 60 months of imprisonment, followed

by five years of supervised release.

II.

Budziak contends that there was insufficient evidence presented at trial to sustain his conviction for distribution of child

pornography. We review the sufficiency of the evidence supporting a defendant’s conviction de novo. United States v.

UNITED STATES v. BUDZIAK 12145
Green, 592 F.3d 1057, 1065 (9th Cir. 2010). We will affirm

the conviction unless, viewing the evidence in the light most

favorable to sustaining the verdict, no rational trier of fact

could have found the essential elements of the crime beyond

a reasonable doubt. United States v. Nevils, 598 F.3d 1158,

1164 (9th Cir. 2010) (en banc).

[1] 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. Although Budziak presents a question of first

impression in this circuit, our sister circuits have considered

— and rejected — the argument he asserts here. See United

States v. Chiaradio, 684 F.3d 265, 281-82 (1st Cir. 2012);

United States v. Shaffer, 472 F.3d 1219, 1223 (10th Cir.

2007); see also United States v. Christy, 65 M.J. 657, 664-65

(Army Ct. Crim. App. 2007). 

In Shaffer, the defendant argued that there was insufficient

evidence to convict him for distribution of child pornography

because he did not actively transfer possession of any child

pornography “by mail, e-mail, or handing it to another person.” 472 F.3d at 1223 (internal quotation marks omitted).

The Tenth Circuit disagreed, concluding that he engaged in

distribution when he left images and videos containing child

pornography on his computer and freely allowed other users

to download those items through the file-sharing program

Kazaa. Id. at 1223-24. The court compared Shaffer’s distribution of child pornography to a self-service gas station owner’s

distribution of gasoline: “The owner may not be present at the

station . . . . [a]nd neither the owner nor his or her agents may

ever pump gas . . . . [but] we do not doubt for a moment that

the gas station owner is in the business of ‘distributing[ ]’ . . .

gasoline . . . .” Id. at 1223-24. 

12146 UNITED STATES v. BUDZIAK
[2] Following the First, Eighth, and Tenth Circuits, we

hold that the evidence is sufficient to support a conviction for

distribution under 18 U.S.C. § 2252(a)(2) when it shows that

the defendant maintained child pornography in a shared

folder, knew that doing so would allow others to download it,

and another person actually downloaded it. Chiaradio, 684

F.3d at 281-82; United States v. Collins, 642 F.3d 654, 656-57

(8th Cir. 2011); Shaffer, 472 F.3d at 1223. This definition of

“distribution” is consistent with the plain meaning of the

word. Shaffer, 472 F.3d at 1223 (“We have little difficulty in

concluding that Mr. Shaffer distributed child pornography in

the sense of having ‘delivered,’ ‘transferred,’ ‘dispersed,’ or

‘dispensed’ it to others.”). 

[3] We conclude that the evidence was sufficient to support the jury’s finding that Budziak distributed files containing child pornography by maintaining them in a shared folder

accessible to other LimeWire users. Although Budziak argues

before this Court that he disabled the sharing function on his

LimeWire software, he did not present evidence of that assertion to the jury. The government, on the other hand, presented

evidence that file-sharing was enabled on Budziak’s

LimeWire program when they seized his computer; that there

were multiple files containing child pornography in Budziak’s

shared folder when they seized the computer; that Budziak

initially told FBI agents he had not changed the default settings on his LimeWire program; and that agents actually

downloaded shared files containing child pornography from

an IP address registered to Budziak in June 2007. Viewing the

evidence in the light most favorable to the verdict, a reasonable jury could have found beyond a reasonable doubt that

Budziak shared — and thus distributed — child pornography

through LimeWire. 

The evidence was also sufficient to support a finding that

Budziak knew that he was sharing files containing child pornography. At trial, the government presented evidence indicating that Budziak was familiar with LimeWire and how it

UNITED STATES v. BUDZIAK 12147
functioned. It presented evidence that he had installed the latest version of the program; that he used the program to download files with some frequency; and that he knew enough

about the program’s functions to tell an FBI agent that he

moved files out of the shared folder to other parts of his computer. A reasonable jury could have found beyond a reasonable doubt that Budziak’s technical knowledge and familiarity

with LimeWire demonstrated that he knew he was sharing

files. See Collins, 642 F.3d at 656-57 (upholding distribution

conviction where government presented evidence that defendant was knowledgeable about his computer); United States

v. Durham, 618 F.3d 921, 928-29 (8th Cir. 2010) (distribution

enhancement was not warranted because there was no evidence of defendant’s knowledge that other LimeWire users

could obtain files from his computer, nor evidence of his

familiarity with the program). 

III.

[4] Budziak contends that the instruction the district court

gave to the jury on distribution was erroneous, because it did

not require the jury to find that he personally took affirmative

steps to send child pornography to another person. The government argues that this claim is unreviewable under the “invited error” doctrine because Budziak failed to object to the

instruction before the district court. The “invited error” doctrine does not apply here. An error is “invited” and unreviewable only if a defendant “induced or caused the error,” or if

he “intentionally relinquished or abandoned a known right.”

United States v. Perez, 116 F.3d 840, 845 (9th Cir. 1997) (en

banc). In contrast to other cases where we have found that the

defendant invited an error in a jury instruction, the record here

does not reflect that Budziak intentionally abandoned or

rejected the element of the distribution instruction he now

asserts the court should have included. See United States v.

Baldwin, 987 F.2d 1432, 1437 (9th Cir. 1993) (government

offered omitted instruction, but defendant rejected it); United

States v. Guthrie, 931 F.2d 564, 567 (9th Cir. 1991) (trial

12148 UNITED STATES v. BUDZIAK
court offered to give omitted instruction, but defendant

rejected the offer). We review the district court’s instruction

for plain error. Perez, 116 F.3d at 846. 

[5] The district court instructed the jury that in order to

find Budziak guilty, it would have to find that he “knowingly

distributed” child pornography. The court defined “distribution” as “delivering, transferring, dispersing, or dispensing

something to others,” and instructed the jury that

“[d]istribution includes allowing electronic access to an image

or video stored on one’s computer and then the image or

video is downloaded by another person.” The district court’s

instruction was not plainly erroneous. Until now, this Court

had not yet resolved the issue of when the use of a file-sharing

program constitutes “distribution.” Accordingly, any error on

the district court’s part cannot be deemed to have been plain.

See United States v. Gonzalez-Aparicio, 663 F.3d 419, 428

(9th Cir. 2011) (“To be plain, the error must be clear or obvious, and an error cannot be plain where there is no controlling

authority on point and where the most closely analogous precedent leads to conflicting results.” (internal quotation marks

and citation omitted)). Moreover, the district court’s definition of distribution comported with the Tenth Circuit’s holding in Shaffer, 472 F.3d at 1223-24, which we adopt here. 

IV.

Budziak argues that the district court erred in denying his

motion for a new trial based on juror misconduct without

holding an evidentiary hearing. We review the district court’s

ruling for abuse of discretion. United States v. Ruiz Montes,

628 F.3d 1183, 1187 (9th Cir. 2011); United States v.

Navarro-Garcia, 926 F.2d 818, 822 (9th Cir. 1991). 

Budziak’s motion for a new trial or judgment of acquittal

argued that more technically sophisticated members of the

jury had improperly exposed other jurors to extraneous evidence. The affidavit Budziak attached to his motion alleged

UNITED STATES v. BUDZIAK 12149
the following facts: After the jury returned its verdict, two

jurors spoke to defense counsel. They reported that during

deliberations, several of the more “computer savvy” jurors

speculated that Budziak may have re-installed his LimeWire

program, which they suggested could explain the lack of

forensic evidence of distribution of child pornography in June

2007. 

When presented with an allegation of juror misconduct, a

trial court should ordinarily hold an evidentiary hearing to

hear admissible juror testimony and determine the precise

nature of the extraneous information. Ruiz Montes, 628 F.3d

at 1186. An evidentiary hearing is not required, however, if

the court is able to determine without a hearing that the allegations if true would not warrant a new trial. Navarro-Garcia,

926 F.2d at 822. Here, the district court held that a new trial

would not be warranted even assuming the truth of the allegations about the juror comments set forth in Budziak’s motion.

[6] The court did not abuse its discretion in denying Budziak’s motion. The alleged juror comments referred not to

extraneous evidence, but to the jurors’ personal life experiences with computers and with the LimeWire program. It is

well established that “a juror’s past personal experiences may

be an appropriate part of the jury’s deliberations.”

Grotemeyer v. Hickman, 393 F.3d 871, 879 (9th Cir. 2004)

(quoting Navarro-Garcia, 926 F.2d at 821 (internal quotation

marks omitted)); see also Price v. Kramer, 200 F.3d 1237,

1255-56 (9th Cir. 2000) (jurors’ accounts of their own experiences with the police did not constitute extraneous evidence);

Hard v. Burlington N. R.R. Co., 812 F.2d 482, 486 (9th Cir.

1987) (“Jurors must rely on their past personal experiences

when hearing a trial and deliberating on a verdict.”). The district court correctly determined that the alleged juror conduct

was not a legitimate subject of inquiry under the Federal

Rules of Evidence. See Fed. R. Evid. 606(b) (prohibiting

admission of juror testimony about jury deliberations, except

12150 UNITED STATES v. BUDZIAK
for evidence of extraneous prejudicial information); Hard,

812 F.2d at 485-86. 

V.

Budziak contends that the district court erred in denying

him discovery on the FBI’s EP2P software. We review the

district court’s Rule 16 discovery rulings for abuse of discretion. United States v. Stever, 603 F.3d 747, 752 (9th Cir.

2010).

[7] 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.” Fed. R. Crim. P. 16(a)(1)(E). Evidence is “material” under Rule 16 if it is helpful to the development of a possible defense. United States v. Olano, 62 F.3d

1180, 1203 (9th Cir. 1995). A defendant must make a “threshold showing of materiality” in order to compel discovery pursuant to Rule 16(a)(1)(E). United States v. Santiago, 46 F.3d

885, 894 (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 that the Government is in possession of information

helpful to the defense.” United States v. Mandel, 914 F.2d

1215, 1219 (9th Cir. 1990).

[8] Budziak argues that he made a sufficient showing that

discovery of the EP2P software was material to preparing his

defense. We agree. 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. 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”

UNITED STATES v. BUDZIAK 12151
folder, making it “more likely” that he did not knowingly distribute any complete child pornography files to Agents Lane

or Whisman. Stever, 603 F.3d at 753. 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. 

[9] In United States v. Cedano-Arellano, 332 F.3d 568 (9th

Cir. 2003), we held that the defendant was entitled to discovery on the narcotics detector dog that “alerted” on his gas

tank, id. at 570, because materials on the dog’s qualifications

“were crucial to his ability to assess the dog’s reliability, a

very important issue in his defense, and to conduct an effective cross-examination of the dog’s handler.” Id. at 571. Similarly, access to the EP2P software was crucial to Budziak’s

ability to assess the program and the testimony of the FBI

agents who used it to build the case against him. Like the

competency of the drug-sniffing dog in Cedano-Arellano, the

functions of the EP2P software constituted a “very important

issue” for Budziak’s defense. Given that the distribution

charge against Budziak was premised on the FBI’s use of the

EP2P program to download files from him, it is logical to

conclude that the functions of the program were relevant to

his defense. Cf. Stever, 603 F.3d at 753. 

Much 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 Third 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.” United States v. Liebert, 519 F.2d 542, 547-48

(3d Cir. 1975); see also United States v. Dioguardi, 428 F.2d

1033, 1038 (2d Cir. 1970) (“It is quite incomprehensible that

12152 UNITED STATES v. BUDZIAK
the prosecution should tender a witness to state the results of

a computer’s operations without having the program available

for defense scrutiny and use on cross-examination if

desired.”). 

[10] Although the government argued that the computer

logs it provided 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.1 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 against the defendant 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. 

[11] To win reversal of his conviction, 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. Stever, 603

F.3d at 754 (citing United States v. Chon, 210 F.3d 990, 994-

95 (9th Cir. 2000)). “This he cannot do, because the Govern1This evidence distinguishes the instant case from Chiaradio, where the

First Circuit held that the defendant could not demonstrate prejudice

resulting from nondisclosure of the EP2P source code. 684 F.3d at 277.

In Chiaradio, the defendant “neither contradicted nor cast the slightest

doubt upon” the government’s testimony that the materials it had already

provided to him verified that an FBI agent downloaded files containing

child pornography from his computer. Id. In contrast, Budziak presented

arguments and evidence suggesting that the materials disclosed by the FBI

did not resolve all questions relevant to his defense. 

UNITED STATES v. BUDZIAK 12153
ment has never surrendered the materials for review.” Id.

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. Id. (“Without the actual

material, there is no way to judge prejudice.”); cf. United

States v. Alvarez, 358 F.3d 1194, 1209 (9th Cir. 2004) (“In

this situation, it is impossible for us to determine whether the

trial court abused its discretion by failing to release information in the files, because the files are not part of the appellate

record.”); United States v. Bernal-Obeso, 989 F.2d 331, 336

(9th Cir. 1993) (“Because neither we nor the trial court know

what it is we are attempting to review, we cannot fulfill [our]

responsibility on this record.”).

[12] 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.” Stever, 603 F.3d at 754;

see also Pennsylvania v. Ritchie, 480 U.S. 39, 57 (1987)

(“Ritchie is entitled to have the [undisclosed evidence]

reviewed by the trial court to determine whether it contains

information that probably would have changed the outcome of

his trial”); Alvarez, 358 F.3d at 1209 (following Ritchie). 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. Ritchie, 480

U.S. at 58; Alvarez, 358 F.3d at 1209. 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.

See United States v. Spires, 3 F.3d 1234, 1238-39 (9th Cir.

1993).

VACATED and REMANDED.

12154 UNITED STATES v. BUDZIAK