USA v. Duggar

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IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FAYETTEVILLE DIVISION
UNITED STATES OF AMERICA 	PLAINTIFF
V. 	CASE NO. 5:21-CR-50014
JOSHUA JAMES DUGGAR 	DEFENDANT
OPINION AND ORDER
Defendant Joshua James Duggar was indicted on April 28, 2021, on one count of
receipt of child pornography, one count of possession of child pornography, and a
forfeiture allegation. (Doc. 1). 	On November 3, 2021, the Government filed a Notice
Pursuant to Federal Rule of Evidence 414 and Motion in Limine to Admit Evidence of the
Defendant’s Prior Child Molestation Conduct (Doc. 68). 	In the Motion, the Government
advises that
it may seek to introduce evidence at trial that the defendant committed other
acts of child molestation, as that term is defined by Rule 414. Specifically,
the government notices its intent to introduce evidence that in approximately
2002 and 2003, before he committed the offenses charged in the indictment
in this case and while living in Arkansas, the defendant attempted to and
did commit a crime as defined by Arkansas state law involving contact
between any part of the defendant’s body and a child’s genitals or anus—
namely, sexual assault in the second degree, presently codified at Ark.
Code Ann. § 5-14-125. If introduced, the government anticipates that the
evidence will consist of testimony that the defendant was investigated for,
admitted to, and received counseling for touching and sexually molesting
multiple minor females, including at least one instance involving the digital
penetration of a prepubescent minor.
Id. at p. 2. 	The Notice and Motion go on to explain the reasons why the Government
believes this evidence should be presented to the jury at trial.
Also on November 3, Defendant filed a Response (Doc. 85) in opposition to the
Government’s Motion, arguing, first, that the Government’s Notice did not comply with the
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requirements of Federal Rule of Evidence 414(b) and, second, that even if the Notice
were adequate, it is not clear what evidence the Government intends to introduce at trial
pursuant to Rule 414. 	Notwithstanding Defendant’s argument that he was uncertain of
the nature of the Government’s evidence, he filed his own Motion in Limine (Doc. 72) in
which he demonstrated his general knowledge of this evidence and asked the Court to
exclude it under Rule 403.
On November 18, 2021, the Court held a hearing on both motions in limine. When
the Court pressed the Government to describe the witness testimony it intended to
present 	to 	establish 	Defendant’s 	prior 	acts 	of 	child 	molestation, 	the 	Government
explained that it planned to call two witnesses—but only one of them was under
subpoena; the other witness had not yet been located and served. 	Because it was not
entirely clear what the two witnesses would say under oath, the Court set a follow-up
hearing for November 29, 2021, to preview the Rule 414 evidence and make a finding as
to its admissibility.
Now that the evidence has been received by the Court, it is prepared to rule on the
pending motions. For the reasons explained herein, the Government’s Motion in Limine
(Doc. 68) is GRANTED, and Defendant’s Motion in Limine (Doc. 72) is DENIED.
I. DISCUSSION
A. Sufficiency of the Government’s Notice Under Rule 414(b)
Defendant contends that the Government’s Notice of Intent to Admit Evidence of
Prior Child Molestation does not comply with Rule 414(b), which states:
If the prosecutor intends to offer this evidence, the prosecutor must disclose
it to the defendant, including witnesses’ statements or a summary of the
expected testimony. The prosecutor must do so at least 15 days before trial
or at a later time that the court allows for good cause.
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Defendant maintains that the Government’s Notice is deficient because it “has not
disclosed, as the Rule requires, ‘witnesses’ statements or a summary of the expected
testimony.’” 	(Doc. 85, p. 6). 	The Government’s Notice (Doc. 68), filed on November 3,
contained a brief summary of the expected Rule 414 evidence. On November 15—fifteen
days before trial—the Government sent the defense team an email identifying the
witnesses who were expected to testify and a summary of that testimony. The Court later
received a copy of the November 15 email and attachments and marked them as Court’s
Exhibit 1 (under seal) to the November 18 hearing.
The Court finds that the Government’s Notice was both sufficient and timely. 	To
the extent the original Notice did not provide enough detail, the follow-up email of
November 15 adequately advised Defendant of the evidence the Government intended
to present under Rule 414.
B. Rule 414’s Requirements
“Federal Rule of Evidence 414 is an exception ‘to the general rule that evidence of
past crimes may not be used to prove the character of a person in order to show action
in conformity therewith.’” 	United States v. Bentley, 561 F.3d 803, 814 (8th Cir. 2009)
(quoting United States v. Withorn, 204 F.3d 790, 794 (8th Cir. 2000)). Accordingly, Rule
414 “will supersede in sex offense cases the restrictive aspects of Federal Rule of
Evidence 404(b).” United States v. LeCompte, 131 F.3d 767, 769 (8th Cir. 1997) (quoting
140 Cong. Rec. H8992 (daily ed. Aug. 21, 1994) (statement of Rep. Molinari)). The Ninth
Circuit has described Rule 414 as “establishing a presumption—but not a ‘blank check’—
favoring the admission of propensity evidence at both civil and criminal trials involving
charges of sexual misconduct.” 	United States v. Sioux, 362 F.3d 1241, 1244 (9th Cir.
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2004). 	The Eighth Circuit has similarly explained that Congress enacted Rule 414 “to
loosen to a substantial degree the restrictions of prior law on the admissibility of such
evidence.” LeCompte, 131 F.3d at 768.0F
1
Rule 414(a) provides that “[i]n a criminal case in which a defendant is accused of
child molestation, the court may admit evidence that the defendant committed any other
child molestation.” The Rule defines “child molestation” as “a crime under federal law or
under state law” and involving, as pertinent here, “any conduct prohibited by 18 U.S.C.
chapter 110” or “contact between any part of the defendant’s body—or an object—and a
child’s genitals or anus.” Fed. R. Evid. 414(d)(2)(B) & (D).
Defendant is charged with two child pornography offenses prohibited by 18 U.S.C.
chapter 110, namely, 18 U.S.C. § 2252A(a)(2) and (b)(1) and 18 U.S.C. § 2252A(a)(5)(B)
and (b)(2). Defendant is therefore “accused of child molestation” as defined by Rule 414.
The Government asserts that it can prove by a preponderance of the evidence that in
2002 or 2003, Defendant committed the crime of sexual assault in the second degree as
defined by Arkansas Code § 5-14-125—though he was not charged with any crime. His
victims were all under the age of twelve, and he was approximately fourteen or fifteen
years old at the time. Under Arkansas law, an individual is guilty of sexual assault in the
second degree if that person engages in “sexual contact”—defined as “[a]n act of sexual
gratification involving the touching, directly or through the clothing, of the sex organs”—
with another person who is less than fourteen years of age and not the person’s spouse.
Ark. Code Ann. §§ 5-14-101(12)(A) and 125(5)(A).
1 Because Rule 404 is more restrictive than Rule 414, if certain evidence is admissible
under Rule 414, it is unnecessary to analyze the same evidence under Rule 404.
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Even uncharged conduct is admissible under Rule 414. 	See United States v.
Beaulieu, 194 F.3d 918, 922 (8th Cir. 1999) (“We observe that note five to the official
commentary for Rule 414 states, ‘Evidence of uncharged child molestation is admissible
if the prosecution provides enough evidence to support a finding, by a preponderance of
the evidence, that the defendant committed the act.’”). 	The Rule allows evidence of a
past act of child molestation to be used for any purpose for which it is relevant, “including
the defendant's propensity to commit such offenses.” United States v. Gabe, 237 F.3d
954, 959 (8th Cir. 2001).
According to the Eighth Circuit, “when a criminal defendant is accused of child
molestation—including child-pornography crimes under 18 U.S.C. chapter 110—the court
may admit evidence that the defendant committed any other child molestation.” United
States v. Splettstoeszer, 956 F.3d 545, 547 (8th Cir. 2020) (internal quotation marks and
citation omitted). The prior acts do not have to be identical to the current charges to be
admissible. Indeed, the Eighth Circuit has held that hands-on child-molestation offenses
are relevant to show a defendant’s propensity to commit child pornography crimes. See
id. at 548 (finding prior sexual abuse convictions relevant to show the defendant’s
“propensity to be sexually interested in minors”); United States v. Furman, 867 F.3d 981,
988 (8th Cir. 2017) (holding that defendant's past sexual assault of his children was
probative of his interest, intent, and motive for distributing, receiving, and possessing child
pornography); United States v. Emmert, 925 F.3d 906, 909 (8th Cir. 2016) (determining
that evidence of a defendant’s juvenile conviction for sexually abusing his sister was
relevant under Rule 414 to show an “interest in underage girls” and “propensity for
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exploiting young girls” because it “connect[ed] him to the pornographic images found on
his hard drive”).
C. Evidence of Defendant’s Past Acts of Child Molestation
1. Bobye Holt’s Testimony
a. Clergy Privilege
During the November 29 hearing, the first witness called by the Government was
Bobye Holt. Mrs. Holt and her husband, Jim Holt, were longstanding family friends of the
Duggars. 	Mr. Holt was Jim Bob Duggar’s closest childhood friend, and the families
anticipated that Defendant—the Duggars’ eldest child—would marry the Holts’ eldest
child one day. 	Both the Duggars and the Holts attended the same non-denominational
Christian church, and the two families socialized with one another on a daily basis for
many years.
Before Mrs. Holt testified, Defendant objected that her testimony should be
shielded from disclosure by the common-law clergy privilege. After some discussion with
counsel, the Court permitted Mrs. Holt to testify, subject to Defendant’s objection and the
Court’s ultimate ruling on the privilege issue. 	The parties were also asked to brief the
matter, and both briefs were submitted yesterday. See Docs. 99 & 100. For the reasons
explained in greater detail here, the Court overrules Defendant’s objection and finds the
clergy privilege inapplicable to Mrs. Holt.
“All evidentiary privileges asserted in federal court are governed, in the first
instance, by Federal Rule of Evidence 501.” United States v. Ghane, 673 F.3d 771, 780
(8th Cir. 2012). That Rule states that “[t]he common law—as interpreted by United States
courts in the light of reason and experience—governs a claim of privilege . . . .” Fed. R.
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Evid. 501. 	The Supreme Court has acknowledged, at least in dicta, the existence of a
“priest-penitent privilege,” which “recognizes the human need to disclose to a spiritual
counselor, in total and absolute confidence, what are believed to be flawed acts or
thoughts and to receive priestly consolation and guidance in return.” Trammel v. United
States, 445 U.S. 40, 51 (1980). Though the Eighth Circuit has not explicitly adopted this
particular privilege, other circuit courts have done so. 	The Court believes it is within its
discretion to consider the applicability of such a privilege on a case-by-case basis, bearing
in mind that evidentiary privileges “are not lightly created nor expansively construed, for
they are in derogation of the search for truth.” Ghane, 673 F.3d at 780 (citing United
States v. Nixon, 418 U.S. 683, 710 (1974)); see also In re Grand Jury Investigation, 918
F.2d 374, 386 (3d Cir. 1990) (finding that “evidentiary privileges should be narrowly
construed”).
In considering the contours of a particular privilege, “federal courts follow the
federal common law . . . in federal criminal proceedings.” United States v. Espino, 317
F.3d 788, 795 (8th Cir. 2003). With that said, however, the Supreme Court acknowledged
in Trammel that state trends concerning privilege should be afforded “special relevance.”
445 U.S. at 49–50. 	It follows that in the absence of robust federal authority defining a
privilege, relevant state law may offer helpful further guidance.
According to the Third Circuit, the clergy privilege under federal common law
protects “communications made (1) to a clergyperson (2) in his or her spiritual capacity
(3) with a reasonable expectation of confidentiality.” In re Grand Jury Investigation, 918
F.2d at 384. 	The Third Circuit went on to define “clergyperson” as “a minister, priest,
rabbi, or other similar functionary of a religious organization, or an individual reasonable
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believed so to be by the person consulting him.” Id. at 384 n.13. 	This definition mirrors
Arkansas law, which has long recognized a clergy privilege. Arkansas Rule of Evidence
505(a)(1) defines a “clergyperson” as “a minister, priest, rabbi, accredited Christian
Science Practitioner, or other similar functionary of a religious organization, or an
individual reasonably believed so to be by the person consulting him.”
The threshold issue in the instant case is whether Mrs. Holt qualifies as a
“clergyperson.” It is clear from her testimony—which the Court found very credible—that
she was not a clergyperson at the time Defendant made certain disclosures to her about
molesting children. The following colloquy between the Government’s counsel and Mrs.
Holt is compelling:
Q: Whenever you attended church with the Duggars, did you ever hold a position
of authority within the church?
A. No, ma’am.
Q. Were you ever a pastor of the church?
A. No, ma’am.
Q. Were you ever an elder of the church?
A. No, ma’am.
Q. Were you ever on any sort of church council?
A. No.
Q. Did you hold any sort of role besides parishioner within the church?
A. No.
The Government’s counsel then asked Mrs. Holt why she never held a leadership position
in her church, given her longstanding membership, and she explained, “Women weren't
asked to be elders or pastors in our church.”
In 	response, 	Defendant 	suggests 	that 	Mrs. 	Holt 	should 	be 	considered 	a
clergyperson because her husband was an “elder”—or spiritual leader—of the church at
the time, and she accompanied him on “joint counseling sessions.” The Court rejects this
contention, finding no credible evidence that Mrs. Holt held a position in the church
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analogous to that of a minister, priest, or rabbi.1F
2 Defendant also argues that Mrs. Holt’s
conversations with Defendant should be deemed privileged because one or both of them
prayed or opened the Bible as they conversed. 	To state the obvious: 	Conversations
between two church members are not shielded from discovery by the clergy privilege—
even if those conversations involve serious subjects and are punctuated by prayer.
b. Acts of Child Molestation
Mrs. Holt testified about two different conversations she had with Defendant during
which he allegedly told her that he molested children. The first conversation took place
on March 30, 2003. Mrs. Holt stated that on that date, Defendant’s father, Jim Bob, called
her and her husband to the Duggar residence. When they arrived, they were greeted by
Jim Bob, his wife Michelle, and Defendant. 	Mrs. Holt testified that the reason she and
her husband were called to the Duggar house that day was to discuss something related
to the courtship between Defendant and the Holts’ eldest daughter.2F
3 When they arrived
at the Duggar home, they were escorted to Mr. and Mrs. Duggar’s bedroom, and there
2 	Jim Bob Duggar testified clearly that there were only three leaders of their church in
2002 and 2003: 	himself, Mr. Holt, and another man named Clark Wilson. 	Later in his
testimony, Mr. Duggar claimed that his wife and Mrs. Holt could be thought of as “joint
elders” of the church, simply because they were married to elders and would “help with
special things.” 	The Court rejects this testimony as self-serving, contradictory, and
lacking in credibility.
3 Defendant claims—through his father’s testimony—that the Holts were not called to the
Duggar home that day to discuss the courtship; instead, they were called so that Mr. Holt,
a church leader, could offer spiritual guidance to Defendant and his parents. Under that
theory, the communication would potentially fall under clergy privilege—except for the
fact that Mrs. Holt was also present, and she does not qualify as “clergy.” 	To surmount
that obstacle, Defendant maintains—again, based solely on his father’s testimony—that
Mrs. Holt was a necessary third party to the conversation. 	But given that Mr. Duggar’s
testimony as to Mrs. Holt’s role in the church was not credible, this entire argument is
unavailing.
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Defendant revealed to the Holts that he inappropriately touched a child that day, identified
during the hearing as Jane Doe #4. Defendant acknowledged that he touched this child
while she was sitting on his lap during “Bible time,” and he used his fingers to contact her
vaginal area through her clothes. He also confessed that he had touched the breasts and
vaginas of three other child victims on multiple occasions—Jane Does #1, #2, and #3—
also over their clothes, sometimes when they were asleep and sometimes when they
were awake. 	According to Mrs. Holt, Mr. Duggar indicated that Defendant’s revelations
that day would likely mean the end of the courtship between Defendant and the Holts’
daughter. 	Indeed, Mrs. Holt testified that her daughter and Defendant ended their
relationship that very day.
Mrs. Holt also testified to a second conversation, which took place at the Holts’
home in Little Rock sometime between January and March of 2005. 	Even though
Defendant and the Holts’ daughter had formally terminated their dating relationship, Mrs.
Holt testified that the two families still loved one another and held out hope that the
relationship between the teenagers might yet be salvaged. To that end, the Holts invited
Defendant to live with them for a brief time in Little Rock so they would have time to talk
with him and get to know him better. 	Mrs. Holt testified that one evening, Defendant
entered her bedroom to talk with her and Mr. Holt. 	Sometime during the conversation,
Mr. Holt fell asleep, but Defendant continued to talk. He confessed to Mrs. Holt that he
had not told her the complete truth about past incidents of child molestation. Specifically,
he told Mrs. Holt that on March 30, 2003, he touched Jane Doe #4 both over her clothes
and under her panties, and he admitted that he used his fingers to penetrate the child’s
vagina.
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Based on Mrs. Holt’s credible testimony, the Court finds by a preponderance of the
evidence that Defendant committed a previous act or acts of child molestation, as defined
by Rule 414. 3F
4
2. Jim Bob Duggar
Defendant’s father, Jim Bob, testified at the hearing and largely corroborated the
testimony of Mrs. Holt. For example, he agreed that Defendant inappropriately touched
at least four children, but he was hazy on the details. 	He recalled that Defendant
inappropriately touched the children on their breasts while they were sleeping on more
than one occasion, but beyond that, his memory failed him. In other words, he admitted
the touching was “inappropriate,” but he was unwilling to provide further details, pleading
a lack of memory. 	The Court found Mr. Duggar’s selective lapse in memory to be not
credible; he was obviously reluctant to testify against his son. In any event, his testimony
is not necessary for the Government to introduce Rule 414 evidence at trial; Mrs. Holt’s
testimony is sufficient.
D. Rule 403’s Balancing Test
Though the evidence the Government seeks to introduce qualifies for admission
under Rule 414, that is not the end of the analysis. “Evidence offered under Rule 414 is
still subject to the requirements of Rule 403.” United States v. LeCompte, 131 F.3d 767,
769 (8th Cir. 1997). 	Relevant evidence of a defendant's prior child molestation should
not be admitted if “its probative value is substantially outweighed by a danger of one or
4 The Court also finds that the affirmative defense in Arkansas Code § 5-15-125(a)(5)(B)
does not apply based on the testimony of Mrs. Holt regarding the relative ages of the
Defendant and the child victims. See also Court’s Exhibit 2 (under seal), received during
the November 29 hearing.
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more of the following: unfair prejudice, confusing the issues, misleading the jury, undue
delay, wasting time, or needlessly presenting cumulative evidence.” Fed. R. Evid. 403.
The Tenth Circuit has adopted a four-factor test that is helpful when performing a
Rule 403 balancing in the context of Rule 414. The factors are:
1) how clearly the prior act has been proved;
2) how probative the evidence is of the material fact it is admitted to prove;
3) how seriously disputed the material fact is; and
4) whether the government can avail itself of any less prejudicial evidence.
United States v. McHorse, 179 F.3d 889, 898 (10th Cir. 1999).
As to the first factor, the Court finds, based on the Government’s proffer of
evidence at the hearing, that the prior acts of child molestation allegedly committed by
Defendant in 2002 and 2003 against four child victims are clear and compelling. 	The
Court makes a preliminary finding that a factfinder could reasonably determine, by a
preponderance of the evidence, that Defendant committed a prior act of child molestation
as defined by Rule 414.
As to the second factor, the Court finds the Government’s evidence is probative of
Defendant’s propensity to commit the child pornography offenses with which he is
charged. The child pornography victims in this case are approximately the same ages as
the victims of Defendant’s hands-on child-molestation offenses. 	Accordingly, the prior-
act evidence is probative of Defendant’s sexual interest in underage children and his
propensity for exploiting young girls. See United States v. Bartunek, 969 F.3d 860, 864
(8th Cir. 2020) (affirming district court decision to admit child victim testimony in a child
pornography possession case because the evidence was probative of the defendant’s
sexual interest in underage children); United States v. Libbey-Tipton, 948 F.3d 694, 702
(6th Cir. 2020) (“It is logical to infer that Libbey-Tipton's preference for pornography
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depicting prepubescent girls would translate from his actions in the molestation of [a four-
year-old] and serve as relevant evidence of whether it was Libbey-Tipton that downloaded
the images.”); United States v. Emmert, 825 F.3d 906, 909 (8th Cir. 2016) (affirming
district court’s decision to admit evidence of hands-on sexual abuse of minors in
defendant’s child pornography possession case because the “sexual abuse and child
pornography victims were similar in age”).
Defendant contends that the hands-on offenses took place approximately eighteen
years ago, and this fact diminishes the probative value of the evidence. Given controlling
precedent, the Court disagrees. In United States v. Bartunek, the Eighth Circuit opined
that twenty-year-old acts of child molestation were admissible in the defendant’s child
pornography trial, and the age of the prior offenses “did not establish unfair prejudice.”
969 F.3d at 864. The court also observed in Bartunek that “Congress placed no time limit
on admissibility of evidence under Rule 414 . . . .” Id.; see also United States v. Drewry,
365 F.3d 957, 960 (10th Cir. 2004) (finding “[s]ufficient factual similarity” between twenty-
five-year-old uncharged child molestation and the charged offense); United States v.
Gabe, 237 F.3d 954, 959–60 (8th Cir. 2001) (upholding district court's admission of
evidence of sexual molestation from twenty years before); United States v. Meacham,
115 F.3d 1488, 1495 (10th Cir. 1997) (stating that “[s]imilarity of prior acts to the charged
offense may outweigh concerns of remoteness in time”); United States v. Larson, 112
F.3d 600, 605 (2d Cir. 1997) (noting that “Congress meant [Rule 414's] temporal scope
to be broad” in upholding admission of evidence of abuse sixteen years before the
charged offense).
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Defendant also argues—without any citation to authority, legal or otherwise—that
“an allegation concerning alleged conduct by Duggar as a juvenile sheds no light on
whether Duggar knowingly received or possessed alleged child pornography on three
days in 2019 as the indictment alleges.” (Doc. 72, p. 4). He also claims, “The probative
value 	of 	acts 	allegedly 	committed 	by 	a 	child 	is, 	at 	best, 	minimal 	with 	respect
to crimes allegedly committed more than 18 years later as an adult.” 	(Doc. 85, p. 7).
However, in United States v. Emmert, the Eighth Circuit affirmed the trial court’s
admission of Rule 414 evidence of hands-on sexual abuse that the defendant allegedly
committed twenty years earlier, when he was seventeen years old and still a minor. 825
F.3d at 908. As relevant to the instant case, the child-molestation evidence in Emmert—
though aged—was deemed admissible in the defendant’s child pornography trial.
Next, turning to the third factor, there is no serious dispute about the facts
surrounding Defendant’s prior acts of child molestation. Defendant’s father and Mrs. Holt
testified to essentially the same facts, and Defendant and four of his sisters filed civil
lawsuits in 2017 discussing these same facts and treating the allegations of child
molestation as true. 	Moreover, during the hearing, Defendant’s father testified that he
and his wife appeared on a nationally televised talk show in 2015 and openly discussed
the acts of child molestation that Defendant committed against the four child victims.
Finally, with respect to the fourth factor, it does not appear the Government can
present less prejudicial evidence to show Defendant’s propensity, motive, and identity to
commit the crimes alleged. There is little doubt that the Government’s Rule 414 evidence,
if introduced, will be prejudicial to Defendant. 	But Rule 403 only counsels against the
admission of unfairly prejudicial evidence. 	United States v. Gabe, 237 F.3d. 954, 960
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(8th Cir. 2001). Here, the evidence is prejudicial “for the same reason it is probative.” Id.
The Court will provide the limiting instruction contemplated by Eighth Circuit Model
Criminal Jury Instruction § 2.08A. See United States v. Hollow Horn, 523 F.3d 882, 898
(8th Cir. 2008) (approving of the district court’s decision to admit proper Rule 414
evidence along with a limiting instruction to the jury).
II. CONCLUSION
For the reasons stated, the Court finds the evidence the Government seeks to
introduce under Rule 414 is both relevant and admissible. 	Further, the Court finds that
the admission of this evidence at trial will not violate Rule 403.
IT IS THEREFORE ORDERED that the Government’s Motion in Limine to Admit
Evidence of the Defendant’s Prior Child Molestation Conduct (Doc. 68) is GRANTED, and
Defendant’s Motion in Limine to Exclude Evidence of Juvenile Allegations (Doc. 72) is
DENIED.
IT IS SO ORDERED on this 1st day of December, 2021.
TIMOTHY L. BROOKS
UNITED STATES DISTRICT JUDGE
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