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No reason to dismiss Josh Duggar child porn case, suppress evidence, government contends

Child-porn case valid, filings say by Ron Wood | September 15, 2021 at 4:23 a.m.
Joshua Duggar

FAYETTEVILLE -- Federal prosecutors say there is no basis for a judge to dismiss the child-pornography case against Josh Duggar.

Duggar, 33, of Springdale is charged with two counts involving receiving and possessing child pornography. U.S. District Judge Timothy Brooks set the case for jury trial Nov. 30.

Duggar, best known for being a part of his family's cable television reality show, is accused of using the internet in May 2019 to download and possess the material, some of which depicts the sexual abuse of children younger than 12, according to court documents.

If convicted, Duggar faces up to 20 years of imprisonment and fines up to $250,000 on each count.

Lawyers for Duggar filed several motions last month to dismiss the case or suppress evidence.

In one motion, Duggar's attorneys argue the government failed to preserve potentially exculpatory evidence: searches done by investigators of electronic devices belonging to three people who, at various times, had access to Duggar's Springdale used car lot and the wireless internet at that location.

Duggar's lawyers say there might have been evidence such as internet search histories or evidence associated with the so-called dark web. Officials preserved no evidence of those investigations, according to the motion.

In response, federal prosecutors said investigators looked at those phones and there was no relevant evidence to be found. Further investigation showed none of the three people was present on Duggar's car lot when his computer was used to download child sexual abuse material, undermining his claims.

"Put simply, the government cannot preserve what it does not have -- in this case, forensic images of various cell phones belonging to individuals who were not present on the car lot during the relevant time frame -- and the government had no obligation to take investigative steps based on what the defendant might want at some later date," according to the government's response.

Another motion claims the case should be dismissed because the two acting secretaries of the U.S. Department of Homeland Security at the time of the Duggar investigation weren't properly appointed under the designated order of succession to serve after then-Secretary Kirstjen Nielsen resigned. Basically, the incorrect official assumed the title of acting secretary at that time, according to the motion.

The government contends neither of the acting secretaries played any role in the Duggar investigation and subsequent indictment.

"The defendant's assumption that any violation of the Appointments Clause in regard to [Department of Homeland Security] warrants dismissal of this case fails to appreciate the fact that this indictment was brought by a grand jury and signed by Assistant United States Attorneys of the United States Attorney's Office for the Western District of Arkansas and a Trial Attorney of the Criminal Division of the Department of Justice," according to the government response.

Another motion seeks to suppress all statements Duggar made to investigators at the car lot because they seized his cellphone before Duggar could call his lawyer, then questioned him without his lawyer.

The government contends Duggar was never placed in custody when the search warrant was being served and that his phone was taken as part of that search. Duggar was given his Miranda warning and was free to leave at any time but voluntarily chose to talk with investigators, according to the government.

A motion arguing investigators misled a judge about what files they were actually able to download from Duggar's computer to persuade the judge to issue a search warrant is not an accurate portrayal of what happened, according to the government.

Magistrate Judge Erin Wiedemann was informed via an affidavit that the evidence sought was digital and based on digital images of images of child pornography downloaded from a peer-to-peer network, according to the government. The judge was also told that software had flagged some 93 files of potential child porn connected to the IP address at Duggar's car lot and that law enforcement officials downloaded two files containing child pornography from an IP address connected to the car lot.

According to another motion, investigators waited too long to execute their examination of the electronic devices seized, allowing the warrant to become stale.

The government contends that evidence of child pornography does not become stale. Further, forensic copies of the electronic devices seized from Duggar were made within days of the warrant being issued and served. All of law enforcement officers' processing and analysis was conducted off those forensic images.

Print Headline: Toss out Duggar motions, U.S. asks

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