United States v. Max Budziak

MEMORANDUM **

. In’ United States v. Budziak, 697 F.3d 1105 (9th Cir.2012) (“Budziak I ”), defendant Max Budziak appealed his jury conviction of distribution of child pornography in violation of 18 U.S.C. §§ 2252 (a)(2)(A) and 2252(b)(1), and possession of child pornography in violation of 18 U.S.C. §§ 2252 (a)(4)(B) and 2252(b)(2). We held that the district court abused its discretion in denying Budziak discovery on the EP2P 1 software used in the government’s investigation. We remanded the case to the district court for a determination of whether the materials Budziak requested contained, or would have led to, information that might have altered the verdict. We stated that “[i]f the district court determines that the EP2P discovery could *884 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.” Budziak I, 697 F.3d at 1113 .

On remand, the government disclosed that it had lost or destroyed the source code of the EP2P program. In light of the government’s disclosure, Budziak moved for discovery sanctions under Fed. R.Crim.P. 16(d)(2), asking the district…

concurring in part, and concurring in the result:

I agree with the majority’s analysis of the merits of Budziak’s appeal, but write separately because I do not believe that the merits are before us. Budziak seeks discovery of the EP2P source code to support an argument that the Government seized child pornography images from his computer in violation of the Fourth Amendment. But because Budziak stipulated to the elements of the offense of possessing child pornography, that stipulation alone would be sufficient to support the possession conviction even if Budziak succeeded in suppressing all evidence seized from his computer. Budziak’s appeal therefore is moot. See United States v. Larson, 302 F.3d 1016, 1019-20 (9th Cir.2002). I would dismiss for lack of jurisdiction.

Although this is not a sufficiency-of-the evidence case, neither was Larson . Budz-iak’s stipulation renders this appeal moot for the same reason as did the stipulation in Larson — even if all evidence of the charged crime is suppressed, a stipulation to the elements of that crime is sufficient on its own to support a conviction. See 302 F.3d at 1019-20 .

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS FILED

FOR THE NINTH CIRCUIT MAY 14 2015

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

UNITED STATES OF AMERICA, No. 14-10304

Plaintiff - Appellee, DC No. 5:08 cr-0284 RMW

v.

MEMORANDUM*

MAX BUDZIAK,

Defendant - Appellant.

Appeal from the United States District Court for the Northern District of California Ronald M. Whyte, Senior District Judge, Presiding

Submitted April 21, 2015**

Before: TASHIMA, CLIFTON, and MURGUIA, Circuit Judges.

In United States v. Budziak, 697 F.3d 1105 (9th Cir. 2012) (“Budziak I”),

defendant Max Budziak appealed his jury conviction of distribution of child

pornography in violation of 18 U.S.C. §§ 2252(a)(2)(A) and 2252(b)(1), and

possession of child pornography in violation of 18 U.S.C. §§ 2252(a)(4)(B) and

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously finds this case suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2)(C). 2252(b)(2). We held that the district court abused its…