FRE606(b) & “Computer Savvy” Jurors' Technical Skills

In pornography possession and distribution trial, denying post-trial inquiry into alleged speculation by two jurors regarding the defendant's use of specific software; the exchange was based on the jurors' personal life experiences with computers and with the charged software -- neither of which are an extraneous matter subject to inquiry under FRE 606(b), in United States v. Budziak, __ F.3d __ (9th Cir. October 5, 2012) (No. 11-10223)

As reflected by its Advisory Committee Notes, one purpose of FRE 606(b) was to preclude inquiry into the mental processes used by the jury in reaching its verdict. The rule precludes an assessment of intrinsic influences. But what of jurors who happen to have life experience, if not expertise, in certain matters? The Ninth Circuit recently examined a case in which a convicted defendant claimed that jurors speculated about the operation of a program on the defendant's computer and how it had operated. The circuit explained that the results of a juror's personal life experiences provides no necessary ground for undermining the verdict.

In the case, defendant Budziak was charged with possessing and distributing pornography after FBI agents were able to download various pornographic files from an internet (protocol) address registered to the defendant. From the record of these downloads, the agents were able to conduct a warranted search of the defendant's residence and to seize the computers he used there. After assessment of the computers' content, a number of files of child pornography was found. Of particular interest to prosecutors was that the defendant's computer employed a public version of LimeWire, a "peer-to-peer file-sharing program that allows users to search for and download files stored on other users' computers." The FBI had been able to tap into the defendant's files by using a non-pulbic version of the software (named EP2P) "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." Budziak, __ F.3d at __.

At defendant's trial, the court received unchallenged testimony about the LimeWire program and its operation. This included evidence that the program'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." Apparently, the user of the program could "disable the sharing function so other users cannot download their files" and "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." Budziak, __ F.3d at __.

Apparently inadvertent sharing seemed a remote possibility since the "evidence indicat[ed] that Budziak was familiar with LimeWire and how it functioned," as well as "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 explain how to "move[ ] files out of the shared folder to other parts of his computer." Except for this possibility, there seemed to be no evidence presented pertaining to an inadvertent downloading of the pornography files. That the defendant had considerable expertise and knowledge made it less likely the charged pornography had been download or made available for upload, by mistake. Budziak, __ F.3d at __ (citing United States v. Collins, 642 F.3d 654, 656-57 (8th Cir. 2011) (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)).

On defendant's appeal of the guilty verdict, the Ninth Circuit affirmed. The matter was clearly not a matter of the introduction of extraneous evidence to the jury:

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.” The district court correctly determined that the alleged juror conduct was not a legitimate subject of inquiry under [Rule 606(B) Of] the Federal Rules of Evidence.
Budziak, __ F.3d at __ (citing Grotemeyer v. Hickman, 393 F.3d 871, 879 (9th Cir.2004) (quoting Navarro–Garcia, 926 F.2d at 821 (internal quotation marks omitted)); 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, 485-86 (9th Cir. 1987) (“Jurors must rely on their past personal experiences when hearing a trial and deliberating on a verdict.”)).


A related issue addressed by the circuit in the case involved whether the trial judge had an obligation to conduct an evidentiary hearing. The circuit found that the court in the defendant's case had no obligation to make such an inquiry. Where the alleged misconduct of the jury clearly did not involve extraneous information, the court had no obligation to inquire further. It would be pointless. If the matter did not fall under one of the exceptions to the restrictions imposed on juror impeachment specified by FRE 606(b)(2)(A), (B), or (C), the court was precluded from intruding on the juror's deliberative process.

Federal Rules of Evidence
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