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
MEMORANDUM OPINION AND ORDER
Now before the Court are Defendant Joshua James Duggar’s Motion to Compel
(Doc. 31) and the Government’s Response (Doc. 32). 	On August 13, 2021, the Court
held a telephonic hearing on the Motion and took the matter under advisement. Having
now considered the parties’ briefing and the oral argument of counsel, the Motion is
GRANTED IN PART AND DENIED IN PART for the reasons explained below.
I. BACKGROUND
Mr. Duggar’s Motion to Compel concerns a one-page “screen shot” that the
Government produced on June 2, 2021. The screen shot was not provided to the Court,
but the Court understands it was downloaded from a national law enforcement database
called “ICACCOPS.” The Court further understands that “ICAC” is an acronym standing
for “Internet Crimes Against Children,” a task force program created by the Department
of Justice that “help[s] state and local law enforcement agencies develop an effective
response to cyber enticement and child sexual abuse material cases.” See HSI Combats
Child Exploitation at Home and Abroad, https://www.ice.gov/features/child-exploitation
(last accessed Aug. 15, 2021). The Department of Homeland Security (“HSI”) participates
on all sixty-one ICAC task forces across the United States. 	Id. 	“ICACCOPS” is an
acronym 	for 	ICAC’s 	“Child 	On-line 	Protection 	System,” 	which, 	according 	to 	the
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Government’s attorney, can be accessed by all law enforcement agencies that are ICAC
affiliates.
In substance, the screen shot indicates that three law enforcement officers—each
one, it seems, employed by a different police department in Arkansas—downloaded child
sexual abuse material from the same IP address at around the same time on the same
date, May 14, 2019. 	The Government produced to Mr. Duggar certain documents and
information related to one of the three officers, Detective Amber Kalmer, who is employed
by the Little Rock Police Department. It appears Detective Kalmer “determined that the
target IP” who was sharing child sexual abuse material over the BitTorrent peer-to-peer
file-sharing network “geolocated to Northwest Arkansas.” 	(Doc. 32, p. 3). 	Detective
Kalmer 	“then 	contacted 	HSI 	Special 	Agent 	Faulkner, 	who 	investigates 	federal
child pornography offenses in Northwest Arkansas, to inquire if he would further
investigate the user of the target IP.” 	Id. 	That contact eventually led to Mr. Duggar’s
arrest and this federal prosecution.
Mr. Duggar now requests that the Government produce the following documents
related to the screen shot:
(1) 	the information appearing under the “Summary” and “Investigative Activity”
tabs that are visible in the screen shot;
(2) 	the screen shot in “native format”;
(3) 	the date the screen shot was captured and the name of the individual who
captured the screen shot;
(4) 	all law enforcement reports in the possession of Detective Kalmer/the Little
Rock Police Department in connection with this investigation; and
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(5) 	all law enforcement reports and logs in the possession of the other two state
law enforcement officers who downloaded the same child sexual abuse material as did
Detective Kalmer on May 14, 2019.
II. LEGAL STANDARDS
Federal Rule of Criminal Procedure 16(a)(1)(E) provides:
Upon a defendant’s request, the government must permit the defendant to
inspect and to copy or photograph books, papers, documents, data,
photographs, tangible objects, buildings or places, or copies or portions of
any of these items, if the item is within the government’s possession,
custody, or control and:
(i) the item is material to preparing the defense;
(ii) the government intends to use the item in its case-in-chief at trial;
or
(iii) the item was obtained from or belongs to the defendant.
Information is considered “material” if it is “helpful to the defense.” United States
v. Vue, 13 F.3d 1206, 1208 (8th Cir. 1994). 	In the absence of more detailed guidance
from the Eighth Circuit on what the term “material” means, this Court agrees with the
reasoning of the District Court of the District of Columbia that “the government cannot
take a narrow reading of the term ‘material’ in making its decisions on what to disclose
under Rule 16. 	Nor may it put itself in the shoes of defense counsel in attempting to
predict the nature of what the defense may be or what may be material to its preparation.”
United States v. Safavian, 233 F.R.D. 12, 15 (D.D.C. 2005).
The materiality hurdle is not intended to be a high one. 	In fact, even inculpatory
evidence, once disclosed by the government, “is just as likely to assist in ‘the preparation
of the defendant’s defense’ as exculpatory evidence.” United States v. Marshall, 132 F.3d
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63, 67 (D.C. Cir. 1998). 	By the same token, the defendant’s burden of proof as to
materiality must meet some minimal standard. 	“A showing of materiality . . . , is not
satisfied by a mere conclusory allegation that the requested information is material to the
preparation of the defense.” United States v. Krauth, 769 F.2d 473, 476 (8th Cir. 1985)
(internal quotation and citation omitted). Instead, the defendant “must demonstrate that
the requested evidence bears some abstract logical relationship to the issues in the case.”
United States v. Lloyd, 992 F.2d 348, 351 (D.C. Cir. 1993) (internal quotation and citations
omitted).
In addition, the Court encourages the Government’s early disclosure of Brady and
Giglio material. See Amended Pretrial Scheduling Order, Doc. 29, p. 3. Brady material
is evidence that might tend to exculpate a defendant, mitigate punishment, or impeach
testimony that may be determinative of a defendant’s guilt or innocence. 	Brady v.
Maryland, 373 U.S. 83 (1963). 	Giglio material is evidence of plea agreements or other
promises made by the Government to a witness. 	Giglio v. United States, 405 U.S. 150
(1972).
III. DISCUSSION
A. Screen Shot Tabs
Mr. Duggar’s first request is for information that appears under the “Summary” and
“Investigative Activity” tabs that are visible in the screen shot. During the motion hearing,
the Government’s attorney explained that the screen shot was simply a download history
of ICACCOPS from a particular date. 	He stated that the “Summary” tab contains
“information that tells law enforcement . . . that [ICAC is] open, the network info such as
BitTorrent, when it was last observed to be involved in law enforcement activity . . . and if
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any law enforcement has flagged files of interest.” The “files of interest” in the tab have
“a 90- or 120-day lookback period,” so the Government’s counsel speculated that the
content in the tab “is likely zero at this point.” 	With regard to the “Investigative Activity”
tab, the Government’s counsel stated that it contains “a log of anybody within the
ICACCOPS system . . . . [and] . . . will not reference these two other officers [named in
the screen shot] . . . unless they went in and did more investigative activity.”
At the close of the motion hearing, the Court directed the Government’s counsel
to personally review all the information in the “Summary” and “Investigative Activity” tabs
in the screen shot. On August 16, 2021, counsel sent an email to the Court and opposing
counsel verifying that each tab “does not contain discoverable material pursuant to Rule
16, Brady v Maryland, nor Giglio v United States.”
The Court finds that Mr. Duggar has failed to make a prima facie showing that he
is entitled to the information contained in the two tabs appearing in the screen shot
pursuant 	to 	Rule 	16, 	Brady, 	or 	Giglio. 	Moreover, 	the 	Government’s 	affirmative
representation regarding the content in these tabs has satisfied the Court that the
information is not material and not discoverable under Rule 16(a). 	The request for this
information is therefore DENIED.
B. Screen Shot Format and Other Details
Mr. Duggar next requests the production of the screen shot in “native format” and
the disclosure of the date and time of capture and the name of the individual who captured
it. 	The Government’s response to the Motion does not address any of these requests.
However, the Court is uncertain what Mr. Duggar means by the term “native format.” He
complains that the Government has only produced “a picture of evidence” but not “the
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evidence itself,” (Doc. 31, p. 2); but he does not disclose the original format in which the
screen shot was produced, nor does he suggest the particular format he prefers.
Accordingly, the request for production in “native format” is too vague to be understood
and is DENIED WITHOUT PREJUDICE. The request for the date, time, and name of the
person who captured the screen shot is GRANTED.
C. Law Enforcement Reports of Detective Kalmer/Little Rock Police
Next, Mr. Duggar requests all Little Rock Police Department records or reports that
relate to the instant investigation and that have not yet been produced to the defense.
Mr. Duggar’s counsel withdrew this request during the motion hearing, stating: 	“Based
on the government’s representation that there are not records, we accept the fact that
there’s nothing for the Court to compel in that capacity.” This request is therefore MOOT.
D. Law Enforcement Reports of the Other Two Law Enforcement Officers
According to Mr. Duggar, the screen shot the Government produced indicates that
Detective Brandon King, who works for the Jonesboro Police Department, and Officer
David Warren, who works for the Ozark Police Department, were conducting online
investigations into the dissemination of child sexual abuse materials at approximately the
same time that Detective Kalmer was performing her own online investigation. 	During
the motion hearing, the Government stated that all three police officers downloaded the
same child sexual abuse files from the same IP address within minutes of one another—
but in the course of pursuing unrelated investigations—and that only Detective Kalmer,
and not the other two officers, made contact with HSI Special Agent Faulkner to pursue
a federal investigation of these downloads. The Government’s attorney also stated in
open Court that he directed HSI to contact the Jonesboro and Ozark Police Departments
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to inquire whether there were any written reports concerning these downloads, and the
HSI officer confirmed that no reports were generated by either department. Even so, Mr.
Duggar requests that the Court compel the Government to obtain specific information
from Jonesboro and Ozark regarding these downloads.
The Government admits that the undercover law-enforcement downloads that are
associated with this case utilized a software program called Torrential Downpour. 	This
program was configured to search the BitTorrent network for IP addresses sharing child
sexual abuse materials. 	Mr. Duggar believes that Torrential Downpour automatically
generates metadata logs, which are then transmitted in some way—via email or
otherwise—to the police officer who is downloading the child sexual abuse materials from
BitTorrent at the time. 	In the defense’s view, these auto-generated logs are material
because they can be used to determine “the type of hardware a file was allegedly
downloaded from (i.e., an Apple computer, a PC computer, a smartphone, etc.).” (Doc.
31, p. 6). 	Detective Kalmer’s log was already produced to the defense. 	During the
hearing, defense counsel explained that the logs of the other two officers were also
material, since the “metadata may differ based on which version of Torrential Downpour
each agency used,” and the auto-generated logs could show “whether those downloads
were successful, whether there’s a pathway that’s reflected in there, how long it took,
whether there was a disconnect and then a reconnect, and whether [the other two officers]
were able to actually download the file in the first place.”
The Government maintains that it does not possess the auto-generated logs sent
to the officers in Jonesboro and Ozark and is not certain that such logs still exist.
Moreover, the Government contends that it should not be required to attempt to obtain
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the 	logs 	because 	they 	were 	generated 	in 	the 	course 	of 	completely 	unrelated
investigations and are not material to the defense. 	The Court appreciates the fact that
the Little Rock, Jonesboro, and Ozark police officers were not conducting a coordinated
online investigation and coincidentally downloaded the same files from the same IP
address at approximately the same time. Nevertheless, the defense has persuaded the
Court that the auto-generated logs emailed to the three officers could disclose information
to the defense that may be either be exculpatory or inculpatory.
Rule 	16 	entitles 	a 	defendant 	to 	certain 	records 	“within 	the 	government’s
possession, custody, or control.” Fed. R. Crim. P. 16(a)(1)(E). 	Additionally, pursuant to
the Government’s Brady obligations as explained in Kyles v. Whitley, 514 U.S. 419, 437
(1995), “the individual prosecutor has a duty to learn of any favorable evidence known to
the others acting on the government’s behalf in the case, including the police.” 	This
means that the Government must independently seek out and discover evidence that is
in the state’s possession when it is “favorable evidence rising to a material level of
importance.” See Villasana v. Wilhoit, 268 F.3d 976, 979 (8th Cir. 2004) (quoting Kyles,
514 U.S. at 438). Based on the statements of the Government’s counsel at the motion
hearing, the Court concludes that the Jonesboro and Ozark Police Departments are more
than likely ICAC affiliates, and as such, the HSI agents who work directly with the
prosecution team in the case at bar have the ability to obtain the auto-generated logs that
Mr. Duggar seeks—if they exist—from these ICAC affiliates. The Court therefore directs
the Government to accomplish this task and obtain the logs to produce to the defense. If
the logs do not exist, then the Government should inform the Defendant of this fact. The
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Motion is GRANTED as to this particular request.1
IV. CONCLUSION
IT IS THEREFORE ORDERED that the Motion to Compel (Doc. 31) is GRANTED
IN PART AND DENIED IN PART as stated.
IT IS SO ORDERED on this 19th day of August, 2021.
/s/ Timothy L. Brooks
TIMOTHY L. BROOKS
UNITED STATES DISTRICT JUDGE
1 The Government’s counsel expressed concern during the hearing that if the Court
permitted Mr. Duggar to obtain the auto-generated Torrential Downpour logs from the
other law enforcement agencies, the defense’s next move might be to file a motion to
compel disclosure of the source code, manuals, and software for Torrential Downpour.
The Government’s concern is premature, as no motion to compel is before the Court.
Further, the Court emphasizes that its ruling today is limited to the materiality of the auto-
generated Torrential Downpour logs. Mr. Duggar has met his burden to show that these
logs are material beyond “mere speculation or conjecture,” United States v. Hoeffner, 950
F.3d 1037, 1043 (8th Cir. 2020).
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