Federal appeals court hears Josh Duggar oral arguments

KANSAS CITY, Mo. (KNWA/KFTA) — A federal appeals court has listened to oral arguments in Joshua Duggar's effort to overturn his child pornography conviction and receive a new trial.

Duggar, 34, a former reality TV personality, was convicted on a pair of child pornography charges in federal court in Fayetteville in December 2021. The defense has maintained Duggar’s innocence and filed a federal appeal shortly after sentencing.

Judges Lavenski R. Smith, David R. Stras and Jonathan A. Kobes listened to both sides present their arguments at the Charles Evans Whittaker Courthouse in Kansas City, Missouri on February 16. Duggar's case was the first heard that morning and the defense and prosecution were each allotted 20 minutes to address the three judges.

Attorney Justin Gelfand began speaking for the defense by stating that the court should reverse the conviction for three reasons, as it has maintained throughout its post-conviction filings. He said that the Arkansas district court "applied a test the U.S. Supreme Court has already determined is unconstitutional," thereby "denying Mr. Duggar the opportunity to present a complete defense."

Second, the defense alleged that Duggar was "interrogated outside the presence of his attorney after law enforcement had physically taken his phone from his hand when he was attempting to contact his counsel." The third point stated that the lower court "erroneously introduced expert testimony as lay testimony" involving a "critical issue in the case," specifically EXIF metadata collected from digital photographs.

Gelfand went on, calling it "even more egregious" that the defense's computer forensic expert witness was not allowed to "critique the methodology" that the government's expert witness utilized regarding that data.

For the first issue, Gelfand said that the defense "attempted to elicit testimony" from Caleb Williams, a former employee at Duggar's car lot. The attorney noted that this witness was listed on a sales contract from six weeks before Duggar's crimes, and added that he "regularly used the only computer at issue," an HP desktop located in the business' office.

One of the appellate judges then noted that the Arkansas federal court did not preclude the defense from calling the witness in question to testify, but simply had a "threshold" of a "time and a place nexus" regarding relevant testimony. Gelfand disagreed with this assessment.

"The district court expressly said that we could call Mr. Williams for a very limited purpose," he responded. "We could ask him whether he had knowledge or recollection of being present on the lot between May 13 and May 16, and whether he remoted in."

Gelfand added that Judge Timothy L. Brooks would not allow the impeachment of Williams regarding a prior felony conviction.

"But isn't that exactly what Judge Kobes just asked you?" Judge Stras wondered. "That there was an insufficient nexus, unless he admitted on the stand that he was actually there or had remoted in or had some connection to that computer?"

Gelfand said he didn't believe so due to a "critical" in-chamber sidebar conducted the day before that ruling. He proceeded to cite case law that ruled defendants have "an absolute Constitutional right" to present evidence of an alternative perpetrator.

"That's what the U.S. Supreme Court said," he noted. "That's binding precedent in this court."

Gelfand then moved on to the matter of "suppression," stating that federal agents "made a beeline after doing surveillance, waiting for Josh Duggar to appear at Wholesale Motorcars to execute a search warrant."

"They swarm in," he explained. "In six law enforcement vehicles. They're wearing ballistic vests and they're armed."

Gelfand said there is "no factual dispute" that Duggar put his phone to his ear at that point "for the precise purpose of contacting his legal counsel."

"They physically took the phone out of his hand," he added. "And from that point forward, deprived him of the ability to communicate with his legal counsel."

The court asked if investigators made any statement to Duggar that he was prohibited from contacting his attorney.

"There was no express statement," Gelfand acknowledged. "However, there was no physical mechanism for him to contact him."

"He was told he was free to go, is that correct?" the judge countered.

"He was told that he was free to go, but that's not the test," Gelfand explained. "No reasonable person sitting in his shoes at that time would believe that their freedom of movement was not restricted."

The defense attorney called Duggar's attempt to use his phone "one step greater" than simply asking to speak to his counsel. A judge then observed that the search warrant granted the investigators the right to seize the phone.

"What this court should find is that he was actually in custody," Gelfand said in conclusion.

Department of Justice attorney Joshua K. Handell spoke on behalf of the government, addressing the alternative perpetrator issue first, saying "there was no error in the district court's ruling on the hypothetical testimony of Caleb Williams."

He went on to remind the court about the partitioned section of Duggar's computer where the illegal images and videos were found, and he noted that this had to have been installed by someone "physically present at Mr. Duggar's computer on May 13, 2019."

"There was no evidence that Mr. Williams was present on Mr. Duggar's car lot, or even in the state of Arkansas, on that date."

Joshua K. Handell, DOJ attorney, February 16 oral arguments, USA vs. Duggar appeal

Handell added that the district court gave Duggar a "wide berth to elicit relevant testimony," and that the defense could call Williams to the stand. The attorney went on to list a variety of subjects Williams could have testified about, including his dates of employment, his prior experience with the computer and his contacts and messages with Duggar.

"He also would have been permitted to lay a factual foundation for Mr. Williams' personal knowledge of or involvement in the relevant conduct," the prosecutor added. He explained that Williams could not be impugned as an alternative perpetrator based solely on an unrelated prior offense.

He cited case law showing that the court's decision was consistent with "at least four lines of authority" regarding federal rules of evidence, and he added that mention of Williams' prior conviction would have "little probative value" and "very likely mislead the jury and create a risk of unfair prejudice."

He also read language from another case clarifying when alternative perpetrator evidence may and may not be excluded.

The prosecution addressed the matter of suppression next, explaining that government investigators didn't suppress Duggar's voluntary statement because he "was not in custody at any point during the search of his used car lot." Handell then noted that this appeals court has considered the same six factors for over 30 years in determining if an interview was custodial in nature.

"We went through all of those factors and explained why each supports the district court's finding that Mr. Duggar was not in custody," he added before pointing out two he found "particularly salient" in this case: First, that Duggar was "repeatedly told" that he was not in custody and was free to leave at any time.

"If they aren't magic words, they're about as close as we can come," Handell explained. The attorney noted that Duggar and the agents even engaged in "a little back-and-forth" after the investigators made it clear that they were executing a search warrant, not an arrest warrant.

The prosecutor then cited the statement of rights forms that Duggar signed before the interview, noting that investigators even removed the phrase "into custody" at Duggar's behest because he was "bothered" by the term. Duggar told the agents that he would leave the scene "sooner rather than later" and was informed that the decision to do that was completely up to him.

Handell then added that Duggar "did leave the scene, of his own volition, at a time of his choosing and without being arrested." The attorney added that the court has previously considered cases "much closer to the custodial line" and found that no custodial interrogation terminated without an arrest.

He added that Duggar was not arrested until nearly a year and a half later.

"I am a little concerned, though," one judge said. "Apparently the agent knew that he was trying to call his counsel. And it appears that might have been the only way he could have done so."

"I understand this was a weird situation," the judge continued. "But I had never seen that before."

The prosecutor explained that it was unclear from the record whether Duggar had another potential way to contact his attorney before noting that two other people were present, at least one of whom had a cell phone that was not seized.

Gelfand ran short on time before addressing the EXIF metadata issue the defense raised, and Handell offered to answer any questions on the matter that the court had, calling the subject "much ado about nothing" and saying that text messages that Duggar never disputed sending independently placed him at the scene of the crime on dates of offense conduct in a similar manner.

The prosecutor specifically cited multiple texts that Duggar sent indicating that he was at the car lot just minutes before or after his IP address was connected to law enforcement software while downloading some of the illegal child sexual assault material found on his computer. The government then rested on its brief and asked the appellate court to affirm the judgment against Duggar.

In a short rebuttal, Gelfand said that the government never presented any evidence about Williams' whereabouts, "credible or otherwise," on the dates at issue. He also claimed that the record did not support the government's assertions about how broad the witness' testimony could be.

"There was no ambiguity," Gelfand stated. "The court said 'I'm going to look at the strength of the government's case in evaluating this,'" and he called that decision "an error of law."

The defense attorney concluded by calling the government's comparison of Duggar's text messages and the photo metadata "not sufficient" because there is no way to know which particular date and time the jury used to find Duggar guilty beyond a reasonable doubt.

"This was, what we call in our brief, the house of cards on which the government's case was built," he declared. He asked the court to reverse the case and grant a new trial.

"A fair trial," he added. "A constitutional trial."

The appeals court stated that it will "take the case under advisement." No timetable for a decision has been offered.

Joshua Duggar is currently serving a 151-month prison sentence at FCI Seagoville outside of Dallas. Following his incarceration, he must submit to a 20-year term of supervised release with a host of special conditions attached.

from KARK https://ift.tt/uV41D8Y