United States of America v. Joshua James Duggar
No. 22-2178
United States Court of Appeals For the Eighth Circuit
August 7, 2023
Before SMITH, Chief Judge, STRAS and KOBES, Circuit Judges.
Submitted: February 16, 2023
STRAS, Circuit Judge.
Joshua Duggar challenges his conviction for receiving child pornography. See
I.
Duggar used a computer to download hundreds of child-pornography images. Law enforcement tracked the images to a used-car dealership he owned by identifying the internet-protocol address of the computer.
Not long after, a team of federal agents arrived with a search warrant. Two walked “directly” up to Duggar, who pulled out a cell phone and said he “wanted to call his attorney.” But before he could complete the call, they seized it because it “was considered evidence.”
When asked whether he would like “to discuss further details” about the warrant, he said yes. Without waiting for an explanation, Duggar blurted out, “[w]hat is this about? Has somebody been downloading child pornography?” He then let it slip that he was “familiar with” file-sharing software and had installed it on “all of” his electronic devices, including “the computer in the office.”
A grand jury indicted Duggar for possessing and receiving child pornography. See
Duggar, for his part, tried to point the finger elsewhere. Looking to convince the jury that it faced “a classic, old-fashioned ‘whodunit,‘” he suggested that a former employee, who happened to be a convicted sex offender, was to blame. Duggar ultimately decided not to call him to the stand, however, because the district court ruled that any mention of the employee‘s prior conviction was off-limits. See
The jury found Duggar guilty as charged. After entering judgment on the receipt-of-child-pornography count, see United States v. Soto, 58 F.4th 977, 982 (8th Cir. 2023), the district court sentenced him to 151 months in prison.
II.
Duggar believes that the district court‘s decision to stop him from asking about the employee‘s prior sex-offense conviction deprived him of his right to present a complete defense. Our review is de novo. See United States v. West, 829 F.3d 1013, 1017 (8th Cir. 2016).
A.
The Fifth and Sixth Amendments “guarantee[] criminal defendants a meaningful opportunity to present a complete defense.” United States v. Clay, 883 F.3d 1056, 1060 (8th Cir. 2018) (per curiam) (citation omitted); see
The district court, for its part, tried to strike a balance too. It recognized that Duggar should have an opportunity “to create reasonable doubt” by “call[ing]” the former employee to testify and asking whether he was “present on the car lot” when the downloads occurred. But he could not impeach him with a prior sex crime or introduce “speculative” testimony. See
The court had no obligation under the Fifth and Sixth Amendments to do anything more. As the Supreme Court has put it, nothing in the Constitution calls into
In short, the district court had “unquestionably constitutional” discretion to exclude the conviction under
B.
It is true, as Duggar points out, that the district court slipped up along the way. It mentioned “the strength of the prosecution‘s case” as a factor weighing against the admission of alternative-perpetrator evidence.
Although this statement was wrong, any error was harmless. See
III.
In his second argument, Duggar shifts his attention from what the district court kept out to what it let in: his incriminating statements during the search at the car dealership. He wanted them suppressed on the ground that the agents violated his right to counsel, which he tried to invoke by mentioning a lawyer and then attempting to call one. See Miranda v. Arizona, 384 U.S. 436, 473-75 (1966). We review any factual findings for clear error but consider de novo whether Duggar‘s right to counsel had attached. See United States v. Parker, 993 F.3d 595, 601 (8th Cir. 2021).
The right to counsel at issue “relat[es] to the Fifth Amendment guarantee” against self-incrimination. McNeil v. Wisconsin, 501 U.S. 171, 176 (1991); see
Custody includes more than just formal arrest. It also covers situations in which “a reasonable person” in the suspect‘s shoes “would consider his freedom of movement restricted to the degree associated with formal arrest.” United States v. Muhlenbruch, 634 F.3d 987, 995-96 (8th Cir. 2011) (citation omitted). Everyone agrees that there was no arrest that day, but we must still consider if someone in Duggar‘s shoes might have reasonably thought otherwise. Six factors guide our analysis:
- whether the suspect was informed at the time of questioning that the questioning was voluntary, that the suspect was free to leave or request the officers to do so, or that the suspect was not considered under arrest;
- whether the suspect possessed unrestrained freedom of movement during questioning;
- whether the suspect initiated contact with authorities or voluntarily acquiesced to official requests to respond to questions;
- whether strong[-]arm tactics or deceptive stratagems were employed during questioning;
- whether the atmosphere of the questioning was police dominated; or,
- whether the suspect was placed under arrest at the termination of the questioning.
The first factor, which is “[t]he most obvious and effective means of demonstrating that a suspect has not been ‘taken into custody,‘” weighs heavily in the government‘s favor. Id. (quoting Miranda, 384 U.S. at 444). When the agents arrived, they told Duggar that they had “a federal search warrant, not an arrest warrant, and [that] he was free to leave if he chose to do so.” Later, when the agents invited Duggar to speak with them, they reiterated that he “ha[d] the right to stop the questioning at any time.” The agents, in other words, “clearly inform[ed] [Duggar] that [he] [was] free to leave or decline questioning.” United States v. Sanchez, 676 F.3d 627, 631 (8th Cir. 2012).
It is true that the agents read him his Miranda rights, which ordinarily might leave someone with the impression they are in custody. But when Duggar signed a form acknowledging his rights, he had the agents “scratch ... out” the portion saying that he was being “taken into custody.” Modifying the form made it clear he was free to leave:
The second and third factors also favor the government. Duggar sat in the front passenger seat of the agents’ truck during the interview. They “did not handcuff him,
The fourth and fifth factors, by contrast, do not move the needle much in either direction. It is true that the agents failed to follow through on their promise to “alert” Duggar‘s lawyer to the search. Even so, it would not have “prevent[ed] a reasonable person from terminating the interview.” United States v. Laurita, 821 F.3d 1020, 1026 (8th Cir. 2016) (citation omitted) (explaining that “[t]he use of deception is irrelevant unless it relates to a reasonable person‘s perception of his freedom to depart“). Nor does the fact that law enforcement “assume[d] control of the” dealership necessarily mean the interview was “police dominated.” Griffin, 922 F.2d at 1352. At least not here, when Duggar and the agents were engaged in consensual, “two-way questioning.” Laurita, 821 F.3d at 1027 (citation omitted); see Johnson, 39 F.4th at 1051 (describing the fifth factor as “mixed” when “the interviews were two-way discussions” but “occurred in the agents’ vehicle“).
Finally, Duggar was not “arrest[ed] at the termination of the questioning.” Griffin, 922 F.2d at 1349. To the contrary, he ended the interview on his own and then left the dealership—hardly an option available to someone in custody. See United States v. Treanton, 57 F.4th 638, 642-43 (8th Cir. 2023) (Stras, J., concurring in the judgment) (emphasizing that the sixth Griffin factor “still counts“).
Viewed through Griffin‘s lens, we conclude that a reasonable person in Duggar‘s position would not have thought “his freedom of movement” was “restricted.” Muhlenbruch, 634 F.3d at 995 (citation omitted). It follows that the admission of his statements did not violate Miranda. See Id. at 997.
IV.
The last issue deals with the metadata from Duggar‘s iPhone. Metadata can provide the who, what, when, and where of electronic files and records. See United States v. Hager, 710 F.3d 830, 832 n.2 (8th Cir. 2013); see also The American Heritage Dictionary of the English Language 1105 (5th ed. 2016) (defining metadata as “[d]ata that describes other data,” including “the origin, structure, or characteristics of computer files“). Here, according to the government‘s forensic analyst, it revealed the where (at the dealership) and the when (at the same time as the child-pornography downloads) that connected Duggar to the crime. On appeal, he challenges the analyst‘s qualifications and methods as well as the limitations placed on the testimony of his own expert. Our review of both issues is for an abuse of discretion. See Shipp v. Murphy, 9 F.4th 694, 700 (8th Cir. 2021); Russell v. Anderson, 966 F.3d 711, 730 (8th Cir. 2020).
A.
The government‘s analyst explained in detail how he conducted his analysis. His examination began with photographs
The analyst was qualified to testify about what he found. To start, not everything he said required “scientific, technical, or other specialized knowledge.”
To the extent some of the testimony required “specialized knowledge,” the district court did not abuse its discretion in concluding that he had it.
The analyst also provided enough detail to conclude that his “methods” were “reliably applied.”
B.
The same goes for the limitations on what Duggar‘s expert could say. Although the district court allowed her to speak generally about EXIF metadata, she could not suggest that the “dates and times” were wrong. She never “load[ed]” any of it “into [her] software.” So, as she put it, her testimony consisted of a lot of “I don‘t know[s].”
It was not an abuse of discretion to limit her testimony to what she knew. After all, it would have been “pure conjecture” for her to suggest that there were errors in metadata she never examined. J.B. Hunt Transp., Inc. v. Gen. Motors Corp., 243 F.3d 441, 444 (8th Cir. 2001); see UnitedHealth Grp. Inc. v. Exec. Risk Specialty Ins. Co., 870 F.3d 856, 865 (8th Cir. 2017). Not to mention it had the potential to confuse and mislead the jury. See
It does not matter that the government cross-examined her about the EXIF time stamps on the photographs. She responded by “assuming the information” in the government‘s exhibits was “accurate,” because she had “not personally” verified it. Given that qualification, she did not leave the jury with the “false impression” that she agreed with the government‘s analysis. United States v. Midkiff, 614 F.3d 431, 442-43 (8th Cir. 2010). There was, in other words, nothing for her to clarify. See Valadez v. Watkins Motor Lines, Inc., 758 F.3d 975, 981 (8th Cir. 2014).
V.
We accordingly affirm the judgment of the district court.
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