United States of America v. Max Budziak

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MAX BUDZIAK,
Defendant - Appellant.
No. 14-10304
DC No. 5:08 cr-0284 RMW
MEMORANDUM*
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
FILED
MAY 14 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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).

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2252(b)(2). We held that the district court abused its discretion in denying
Budziak discovery on the EP2P1 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 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
court to dismiss the indictment with prejudice or to suppress any EP2P-related
evidence on retrial. The district court: (1) denied Budziak’s motion for discovery
remedies; (2) dismissed the two child pornography distribution counts against him;
(3) reinstated and entered judgment on the remaining child pornography possession
count; and (4) sentenced Budziak to time served and a five-year term of supervised
release. Budziak appeals, contending that the amended judgment and denial of
1 EP2P is a computer program that allows the FBI to search peer-to-peer
shared networks for specified files, including child pornography.
2

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discovery sanctions violate the law of the case and rule of mandate. He seeks
dismissal of the indictment.2
1. The law of the case is a jurisprudential doctrine according to which
the legal decision of an appellate court “must be followed in all subsequent
proceedings of the same case.” Snow-Erlin v. United States, 470 F.3d 804, 807
(9th Cir. 2006) (citation and internal quotation marks omitted). “The rule of
mandate is similar to, but broader than, the law of the case doctrine.” United States
v. Cote, 51 F.3d 178, 181 (9th Cir. 1995). The rule of mandate requires a district
court to follow the mandate of an appellate court. Id. However, the district court
is “free as to ‘anything not foreclosed by the mandate.’” United States v.
Kellington, 217 F.3d 1084, 1092-93 (9th Cir. 2000) (quoting Herrington v. Cnty. of
Sonoma, 12 F.3d 901, 904 (9th Cir. 1993)). We review a district court’s
2 Based on the fact that “Budziak stipulated to the elements of the
offense of possessing child pornography,” and “that stipulation alone [is] sufficient
to support the possession conviction,” the concurrence takes the position that this
appeal is moot. But this is not a sufficiency-of-the-evidence case. Budziak seeks
dismissal of the indictment for the district court’s asserted failure to comply with
this court’s mandate. Whether that remedy should be granted, assuming that
Budziak prevails on the merits, is a question whose answer is independent of the
sufficiency of the evidence – it is not a question of whether “all evidence of the
charged crime [should be] suppressed,” but whether the indictment should be
dismissed. Thus, the concurrence’s reliance on United States v. Larson, 302 F.3d
1016, 1019-20 (9th Cir. 2002), is misplaced. Larson was an appeal from the denial
of a motion to suppress, not an independently-based motion to dismiss the
indictment. We thus conclude that this appeal is not moot.
3

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compliance with our mandate de novo. United States v. Luong, 627 F.3d 1306,
1309 (9th Cir. 2010).
Budziak argues that because the government failed to turn over the EP2P
source code, the district court violated our mandate by reinstating the possession
conviction. However, Budziak had not requested the source code in the earlier
district court proceedings, and in fact specifically said its disclosure was not
necessary. Because our mandate merely instructed the district court to determine
whether the materials requested by Budziak would have altered the verdict, our
mandate cannot be interpreted to require the government to turn over the source
code.
Our mandate also makes clear that before the district court could reinstate
the possession conviction, it was required to make a finding that the nondisclosure
of the requested materials was harmless. Budziak I, 697 F.3d at 1113. After several
hearings, the district court determined that Budziak had not made a sufficient
showing that the nondisclosure of the EP2P materials could have affected the
outcome of the trial. Because the court determined that the failure to disclose was
harmless, it complied with the mandate.
2. Budziak also argues that the district court’s denial of his motion for
discovery sanctions violated our mandate. There is no question that the issue of
4

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the appropriate discovery remedy for violating a post-remand protective order was
not before us in Budziak I and thus not covered by our mandate. See Kellington,
217 F.3d at 1093 (“[T]he ultimate task is to distinguish matters that have been
decided on appeal, and are therefore beyond the jurisdiction of the lower court,
from matters that have not . . . . ”).
Furthermore, it is well established that “‘[t]he appropriate sanction for a
failure to comply with a discovery rule should rest in the district judge’s sound
discretion.’” United States v. Gee, 695 F.2d 1165, 1168 (9th Cir. 1983) (alteration
in original) (quoting United States v. Valencia, 656 F.2d 412, 415 (9th Cir. 1981)).
The district court gave Budziak ample opportunity to demonstrate how he was
prejudiced by the nondisclosure of the EP2P source code, and Budziak failed to do
so. As a result, we conclude that the district court’s denial of Budziak’s motion for
discovery remedies was well within its discretion.
AFFIRMED.
5

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United States v. Budziak, No. 14-10304
MURGUIA, Circuit Judge, 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.
Budziak’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.
FILED
MAY 14 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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