Federal Prosecutors Fail to Disclose EP2P Software, Material Evidence in Child Pornography Case.

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

Discovery under Rule 16 of the Federal Rules of Criminal Procedure is more restrictive than under Brady v. Maryland. While a criminal defendant under the rule is entitled to all documents, data or tangible items in the Government’s “possession, custody, or control” which are “material to preparing a defense,” However disclosure is required only if the item is “material” to preparing defendant’s defense and the government intends to use the item at trial. The federal appellate courts generally agree that under Rule 16 the defendant must make this “threshold showing of materiality” before the trial court will compel the Government to disclose. This is a strict process as evidenced by the Ninth Circuit: “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.”

The defense attorney for Max Budziak in 2008 before a federal district court in the Northern District of California sought “material” evidence under Rule 16. Budziak was indicted in April of that year on two counts of distributing child pornography and one count of possessing child pornography. His trouble with the law began in June 2007 when an FBI special agent downloaded images of child pornography from Budziak’s Internet Protocol (“IP”) address through a file sharing network. Eight days later a second FBI special agent conducted a child pornography search from “an online file-sharing network” and downloaded 52 files from Budziak’s IP address. Both agents utilized an agency computer program called “EP2P” to conduct their searches and to download the child pornography. The FBI contends that EP2P is an “enhanced version” of the publicly available program called LimeWire which allows peer-to-peer file-sharing. Users of LimeWire are able to search for and download files stored on other users’ computers. LimeWire allows downloads by piecing together “file fragments from multiple users” while EP2P allows the FBI to download the “complete files” of a single user.

Based on the information provided by the two special agents, a third special agent obtained a search warrant to search Budziak’s residence. That search was executed one month after the FBI developed its incriminating evidence against Budziak. The search produced a desktop computer with stored child pornography and an installed LimeWire program. An ensuing forensic examination of the computer’s hard drive revealed “five videos” of child pornography saved in a “shared” folder and other folders that contained child pornography, including the images the two special agents had previously downloaded during the investigation process.

Following Budziak’s indictment, defense counsel filed a motion to suppress the evidence seized from his client’s residence, claiming the affidavit upon which the search warrant was based contained “false statements and material omissions” about the LimeWire program and its uses. The Government responded to the suppression motion with information supplied by the FBI detailing the differences between the LimeWire and EP2P programs. The trial court denied the suppression motion and instructed defense counsel to file a Rule 16 discovery motion if he “wished to review the EP2P software.” Defense counsel thereafter filed three motions to compel the Government to disclose the “specifications of the FBI’s EP2P software or a copy of the program.” The trial court denied each motion, prompting defense counsel to renew his suppression motion which, again, was denied by the court.

During Budziak’s January 2011 trial, the Government presented testimony of an FBI agent who is an “expert” on the “use of EP2P in FBI investigations.” This expert witness testified about LimeWire and its uses. He said LimeWire’s default setting allows its users to “save files” downloaded through the program in a “shared” folder which can allow files in that folder to be downloaded by other users. He added that LimeWire offers its users an option to “disable the sharing function,” preventing others from downloading their files. On cross examination, the expert testified that it is possible that a user could “accidentally share files through LimeWire that he wanted to keep private.” And he said that while EP2P allows the FBI to download files from a single user, “it does not enable the FBI to override a user’s settings to look at or download files not designated for sharing.”

On appeal to the Ninth Circuit, Budziak’s claimed that the trial court abused its discretion by denying his requests for discovery of the EP2P software. He argued to the appellate court that he had made a “sufficient showing” that the software was “material” to his defense preparation. On October 5, 2012 the appeals court agreed. The court pointed out that all three of defense counsel’s motions to compel provided more a “general description of the information sought” and, in fact, sought specific disclosure of the “EP2P program and its technical specifications.” Further, the appeals court noted that defense counsel identified “specific defenses” relative to the distribution charges that examination of the EP2P program could have possibly helped him develop. In fact, defense counsel presented evidence that the FBI “may have” downloaded only “fragments” of the child pornography files from an “incomplete” folder maintained by Budziak. Defense counsel informed the trial court that this possibility made it “more likely” that Budziak did not “knowingly distribute” any complete “files” to the FBI agents who conducted the investigation that led to his arrest. Defense counsel also presented some evidence that agents could have used the EP2P software to “override [Budziak’s] sharing settings.”

This was sufficient for the Ninth Circuit to reach its decision to vacate and remand Budziak’s back to the trial court for an evidentiary hearing. The court stated:

“Much of the evidence 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 …

“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. 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 disclosure is unnecessary. This is especially so where, as here, a charge against is predicated largely on computer software functioning in the manner described by the government, and the government is the only party with access to the software. Accordingly, we hold that it was an abuse of discretion for the district court to deny Budziak’s discovery on the EP2P program.”

We agree with the Ninth Circuit. The Budziak case did not evidence obvious bad faith by the Government. But there have been so many cases at the federal level where Government prosecutors have acted in bad faith in discovery matters that they should never be accorded a presumption of good faith. Here the Government simply did not act in the spirit of “full disclosure” as mandated by Brady and its progeny. Instead the Government chose to interpret the Rule 16 stricter disclosure requirements against Budziak because, as prosecutors argued, he had not shown that the disclosure of the EP2P software was “helpful” to his defense. That unilateral decision flew in the face of another Ninth Circuit case seven years earlier in which the Ninth Circuit had held that a defendant was entitled to discovery on the narcotics detection dog that had “alerted” on his gas tank 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.”

Budziak’s counsel had presented some evidence in his third motion to compel that suggested the FBI agents could have used the EP2P software to override his sharing settings. That was a crucial issue: the Government’s entire case on the distribution counts was premised on the EP2P program being able to download files from Budziak’s shared folder. The First, Eighth, and Tenth Circuits (and the Ninth Circuit followed their lead in Budziak) have held that the Government makes a sufficient showing of distribution when a defendant leaves child pornography on his computer which can be freely downloaded by others through a file-sharing program like LimeWire. The cornerstone of Budziak’s defense against the two distribution counts was that the EP2P software could have been used to override his settings against sharing. Thus access to the EP2P software was as essential to Budziak as the drug detection dog’s qualifications to the defendant in that case.

Quoting the Third Circuit, the Court added: “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.”

So while the Government may not have acted in “bad faith” in the Budziak case, it certainly could have been more cooperative in the Rule 16 disclosure process. As Budziak’s counsel did, defense attorneys must continuously and actively pursue discovery under Rule 16.

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

John Floyd is Board Certified in Criminal Law by the Texas Board of Legal Specialization


See: U.S. v. Mandel

Fed.R.Crim.P. 16(a) (1) (C) provides that a criminal defendant is entitled to discovery of materials “which are within the possession, custody, or control of the government, and which are material to the preparation of the defendant’s defense.” Rule 16 permits discovery that is “relevant to the development of a possible defense.” United States v. Clegg, 740 F.2d 16, 18 (9th Cir.1984). To obtain discovery under Rule 16, a defendant must make a prima facie showing of materiality. United States v. Little, 753 F.2d 1420, 1445 (9th Cir.1984); United States v. Cadet, 727 F.2d 1453, 1468 (9th Cir.1984). 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. See Little, 753 F.2d at 1445; Cadet, 727 F.2d at 1466-68.