FAYETTEVILLE, Ark. (KNWA/KFTA) — On November 22, the U.S. government filed a response brief in Joshua Duggar’s federal appeal of his child pornography conviction.
Duggar, 34, a former reality TV personality, was found unanimously guilty on a pair of child pornography charges in December 2021. In May, he was sentenced to 151 months in federal prison.
Duggar’s defense team submitted its opening brief on October 3 after requesting and receiving 63 days in total extensions. The prosecution also received a pair of shorter extensions before filing its reply, as Department of Justice attorney Joshua K. Handell was working on a pair of other cases and had to familiarize himself with the details of Duggar’s Arkansas district court trial and conviction.
The prosecution’s November 22 response to that opening brief stated that “Duggar’s claims uniformly lack merit, and the district court’s judgment should be affirmed in its entirety.” The government did not object to the defense’s request for oral arguments in the appeal, due to “the number of issues controverted between the parties on appeal and the substantial sentence imposed.”
The prosecution filing added that it believes 15 minutes per side would be adequate to address any disagreements and questions in the U.S. Court of Appeals for the Eighth Circuit in St. Louis. The response noted that the defense’s appeal relies on three points, and it went on to address each of those in this latest filing.
First, the defense took issue with the court requiring that an “evidentiary basis” be provided before allowing a specific witness to be called during the 2021 trial.
The district court correctly predicated Duggar’s proposed strategy of portraying a witness as an alternative perpetrator—and, specifically, impugning that witness by reference to an unrelated prior conviction—on his first laying a foundation for the witness’s capacity to have downloaded CSAM on Duggar’s computer. That modest, contingent limitation was an appropriate exercise of the court’s wide latitude to exclude irrelevant, misleading, and unfairly prejudicial evidence; and it was consistent with precedent of the Supreme Court, of this Court, and of its sibling circuits.
U.S. Government November 22 response to Joshua Duggar’s appeal brief
“In any event, the court’s ruling had no effect on the verdict,” the filing added. “As Duggar’s scapegoat could not possibly have committed these offenses.”
The second defense point that the government refuted concerns an interview Duggar willingly gave to Homeland Security special agents executing a search warrant at his car lot. The defense’s October 3 filing asserted that “a federal agent physically stopped him from contacting his attorney and subsequently interrogated him outside the presence of his counsel.”
“That interview occurred on the premises of Duggar’s car lot, with no restraints on Duggar’s movement, after Duggar had been repeatedly informed that he was not under arrest and was free to leave,” the prosecution stated. “Duggar’s attempt to contact counsel did not occur during or in close proximity to custodial interrogation.”
“Duggar’s Fifth Amendment rights are not implicated here because he was not in custody during his conversation with investigators.”
The third point was in reference to testimony provided at trial by a prosecution forensics expert pertaining to specific data contained within evidence collected from Duggar’s electronic devices. The defense objected to that testimony on the grounds that the topic was not presented as one of his areas of expertise before the trial.
“The government’s expert—who testified to having analyzed thousands of devices across numerous investigations—was qualified to opine on the extraction and interpretation of metadata,” the government said. The filing added that the defense’s own expert admitted to “having never reviewed the metadata that the government presented, despite having ample opportunity to do so.”
The government filing, which ran approximately 48 pages plus summaries and tables of contents, went on to address each of those three points in more depth.
The witness that the defense claims it was prevented from calling, Caleb Williams, was formerly an employee of Duggar’s at the car lot. The November 22 response noted that the government disclosed evidence showing that Williams was not in the state of Arkansas on the dates that Duggar downloaded illegal Child Sexual Assault Material (CSAM) in 2019. It also said that the parties agreed that Williams had told their investigators that he was not present at the car lot between May 14-May 16, 2019.
The filing continued by noting the that the court would allow the defense to call Williams as a witness for the following purposes:
- “to establish background of who he is and what his connection is”
- to “discuss the dates of his employment”
- to “ask him whether or not he has knowledge or recollection of being present on the car lot on or about May 13 through May 16”
- to “inquire if he ever remoted in to the office machine, and if so, the time periods in which he would have remoted in.”
The response noted that defense questioning “could take this one step further” if it established that Williams was present or remoted in on the dates in question. The court cited three relevant cases with similar circumstances involving “alternative-perpetrator evidence.”
“The district court appropriately exercised its broad discretion here by conditioning Duggar’s depiction of Williams as an alternative perpetrator on his first developing an evidentiary basis establishing Williams’s capacity to commit the offense conduct,” the government concluded.
It continued by stressing that the court did not preclude the defense from calling Williams, but that it imposed a “contingent restriction” to doing so. It added that the district court’s exercise of discretion was consistent with prior appellate case law, citing multiple, specific instances. It also added that “any error was harmless because Williams was not a plausible alternative perpetrator.”
“Williams’s testimony would not have affected the verdict. This Court need not even consider the overwhelming evidence implicating Duggar as the culprit. The critical point is that no evidence inculpates Williams.”
The prosecution response then moved on to specific reasoning that it felt supported the court’s decision to allow Duggar’s noncustodial statement to investigators to be included at trial.
First, the prosecution noted that Duggar had signed a waiver acknowledging that he waived his Miranda rights before being interviewed. It then cited a ruling by the district court that found that “Duggar was not in custody at any point during the encounter.”
The government again cited multiple other cases to support its stance. It also reiterated that “Duggar was repeatedly informed that he was not under arrest and was free to leave.”
The filing provided an excerpt from a transcript of the discussion with Duggar before the interview in which a special agent explicitly stated “this is a search warrant. This is not an arrest warrant, so you are free to leave at any time.” It added that Duggar “maintained unencumbered freedom of movement throughout the search.”
The government also stated that “the agents did not employ deceptive or coercive tactics.” It also noted that Duggar refused to answer some questions and exhibited “comfort and command of the interaction.”
The response added that “there is no dispute as to how this interaction concluded: Duggar terminated the interview, exited the vehicle, and departed the premises without being arrested.” The government cited multiple similar cases involving noncustodial interviews like Duggar’s.
It went on to specifically address the issue of Duggar’s access to his cell phone during the execution of the search warrant and stated that “when a person is not in custody, the Fifth Amendment right to counsel is not implicated.” It added that “there is nothing egregious about seizing a cell phone during a search for digital contraband.”
The filing addressed the legal aspects of the defense’s Fifth Amendment argument for multiple paragraphs before summarizing the matter as follows:
Even if (1) Duggar effectively invoked his right to counsel, and (2) the interview qualified as custodial, such that (3) his Miranda rights were implicated, Duggar knowingly and voluntarily waived them. He read, discussed, edited, and signed the statement-of-rights form embodying his waiver.”
U.S. Government November 22 response to Joshua Duggar’s appeal brief
The final point concerned the testimony of Department of Justice expert witness James Fottrell. It explained that the government introduced six sets of images collected from Duggar’s iPhone backup and that Fottrell presented those through the Windows Photos app based on raw data he extracted using forensic tools.
The government explained that the metadata that Fottrell collected was consistent with the content of the photos, including selfies of Duggar taken at the car lot. The prosecution said that it provided notice more than four months before the trial that Fottrell was expected to offer expert testimony on “digital photos taken by [Duggar] that contain metadata, including geolocation information.”
“Nowhere does Duggar acknowledge these disclosures or attempt to reconcile them with his request for relief on his claimed Rule 16 violation—which this Court should deny.”
The response continued by explaining in depth about Fottrell’s qualifications to testify specifically about that type of metadata. It also noted that courts have traditionally recognized cell phone metadata as reliable in other cases.
The brief concluded by restating the facts of the case and the district court trial.
Abundant evidence established that Joshua Duggar downloaded child sexual abuse material on a partition he set up, using his recurring password, on his computer, in his office, on the premises of his car lot. The district court correctly declined to suppress his noncustodial statements to investigators and appropriately limited his questioning of both a putative alternative perpetrator who was in a different state at the time of the offense.
Any rational jury would still have convicted Duggar. He has never offered a plausible exonerative explanation for the events of May 2019, and his efforts to scapegoat an uninvolved third party and create an irrelevant methodological dispute cast no doubt—much less a reasonable one—on his guilt.
U.S. Government November 22 response to Joshua Duggar’s appeal brief
The response was signed by half a dozen government attorneys: U.S. attorney Clay Fowlkes, assistant U.S. attorneys for the Western District of Arkansas Dustin Roberts and Carly Marshall, Child Exploitation and Obscenity Section trial attorney Williams Clayman, assistant attorney general Kenneth Politte Jr., deputy assistant attorney general Lisa Miller and Department of Justice attorney for the appellate section Joshua Handell.
Duggar is currently serving a 151-month federal prison sentence in Federal Correctional Institute (FCI) Seagoville, outside of Dallas. His federal prison sentence will be followed by a supervised release term of 20 years, with a host of special conditions attached.
