Duggar Docs

______________________________________________________________
IN THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT
__________________________
NO. 22-2178
__________________________
UNITED STATES OF AMERICA,
Appellee,
v.
JOSHUA DUGGAR,
Appellant.
__________________________
Appeal from the United States District Court

For the Western District of Arkansas
__________________________
REPLY BRIEF OF APPELLANT

__________________________
Justin K. Gelfand
Missouri Bar No. 62265
Margulis Gelfand, LLC
7700 Bonhomme Avenue, Suite 750
St. Louis, MO 63105
(314) 390-0234 (phone)
(314) 485-2264 (fax)
justin@margulisgelfand.com
Attorney for Appellant

__________________________________________________________________
Appellate Case: 22-2178 Page: 1 Date Filed: 12/27/2022 Entry ID: 5230640
TABLE OF CONTENTS
TABLE OF CONTENTS ........................................................................................... i
TABLE OF AUTHORITIES ................................................................................... iii
ARGUMENT .............................................................................................................1
I. THE DISTRICT COURT VIOLATED DUGGAR’S RIGHT TO PRESENT A

COMPLETE DEFENSE .......................................................................................1
A. The Standard of Review is De Novo .............................................................2
B. The Government Attempts to Rewrite History .............................................4
1. Duggar Established a Nexus Between Williams and the Charges ............5
2. The District Court Prohibited Meaningful Questioning of Williams ........9
3. The District Court Consistently and Repeatedly Misconstrued Holmes .....

..................................................................................................................12
C. This Error Was Not Harmless .....................................................................12
II. THE DISTRICT COURT ERRED IN DENYING DUGGAR’S MOTION TO

SUPPRESS STATEMENTS ..............................................................................14
A. Duggar Was in Custody ..............................................................................15
B. The Seizure of Duggar’s Phone Violated His Rights .................................19
III.THE DISTRICT COURT ERRED IN PERMITTING THE GOVERNMENT’S

EXPERT TO TESTIFY CONCERNING EXIF METADATA AND IN
PRECLUDING DUGGAR’S EXPERT FROM OPINING ON THE
UNRELIABILITY OF THE DATA AND THE METHODOLOGY ................21
A. The District Court Abused Its Discretion by Allowing Fottrell to Testify
About EXIF Metadata .......................................................................................21
B. The District Court Erred by Excluding Duggar’s Expert’s Testimony

About EXIF Metadata .......................................................................................25
CONCLUSION ........................................................................................................28
CERTIFICATES OF SERVICE AND COMPLIANCE .........................................30
ii
TABLE OF AUTHORITIES
Cases
Am. Mod. Home Ins. Co. v. Thomas, 993 F.3d 1068 (8th Cir. 2021) ......................10
Armstrong v. Hobbs, 698 F.3d 1063 (8th Cir. 2012) .............................................8, 9
Boykin v. United States, 738 A.2d 768 (D.C. 1999) ..................................................7
Crane v. Kentucky, 476 U.S. 683 (1986) ...................................................................1
Cummings v. Malone, 995 F.2d 817 (8th Cir. 1993) ...............................................11
Davis v. United States, 512 U.S. 452 (1994) .................................................... 15, 20
Escobedo v. State of Ill., 378 U.S. 478 (1964).........................................................21
Florida Bar v. MacNamara, 132 So. 3d 165 (Fla. 2013) ........................................27
Holmes v. South Carolina, 547 U.S. 319 (2006) ...................................... 2, 7, 11, 12
Miranda v. Arizona, 384 U.S. 436 (1966) ............................................ 17, 18, 19, 20
Pearson v. U.S. Bank Nat’l Ass’n, No. 13-889, 2014 WL 4163020 (D. Minn. Aug.
21, 2014) ..................................................................................................................27
Thompson v. Keohane, 516 U.S. 99 (1995) .............................................................19
United States v. Aldridge, 664 F.3d 705 (8th Cir. 2011) .........................................15
United States v. Aungie, 4 F.4th 638 (8th Cir. 2021).................................................3
United States v. Banks, 43 F.4th 912 (8th Cir. 2022) ..............................................24
United States v. Boyajian, No. 09-cr-933, 2012 WL 4094977 (C.D. Cal. 2012) ....27
United States v. Crawford, 1:19-CR-170, 2021 WL 2367592 (W.D.N.Y. 2021) .......

........................................................................................................................... 23, 24
iii
United States v. Crosby, 75 F.3d 1343 (9th Cir. 1996) .............................................8
United States v. Doe, 170 F.3d 1162 (9th Cir. 1999) ..............................................19
United States v. Dozier, 31 F.4th 624 (8th Cir. 2022) ...........................................2, 4
United States v. Griffin, 922 F.2d 1343 (8th Cir. 1990) ..........................................15
United States v. Horton, 611 F.3d 936 (8th Cir. 2010) ...........................................20
United States v. Jones, 918 F. Supp. 2d 1 (D.D.C. 2013) .......................................23
United States v. Meisel, 875 F.3d 983 (10th Cir. 2017) ........................................3, 4
United States v. Midkiff, 614 F.3d 431 (8th Cir. 2010) ...........................................26
United States v. Moore, 590 F. Supp. 3d 277 (D.D.C. 2022) ..............................7, 12
United States v. Sanchez, 676 F.3d 627 (8th Cir. 2012) ..........................................15
United States v. Spotted Horse, 914 F.3d 596 (8th Cir. 2019) ......................... 21, 22
United States v. West, 829 F.3d 1013 (8th Cir. 2016) ...........................................2, 4
United States v. White, 557 F.3d 855 (8th Cir. 2009) ................................................2
Washington v. Texas, 388 U.S. 14 (1967) .................................................................1
Winfield v. United States, 676 A.2d 1 (D.C. 1996) ...............................................7, 8
Yarborough v. Alvarado, 541 U.S. 652 (2004)........................................................15
Anderson v. Groose, 106 F.3d 242 (8th Cir. 1997) .................................................11
Rules
Federal Rule of Criminal Procedure 16 ...................................................................21
Federal Rule of Evidence 609 ..................................................................................10
iv
ARGUMENT
When reading the Government’s brief, it is easy to lose sight of the core issues
on appeal. Duggar was precluded from presenting compelling alternative perpetrator
evidence because the district court applied a test the Supreme Court found
unconstitutional. Furthermore, the Government’s case was built on a house of cards
related to time-and-place metadata—but the district court improperly permitted the
Government’s expert to offer opinions concerning the metadata and prevented
Duggar’s expert from accurately testifying about the unreliable methodology used
by the Government’s expert. Finally, law enforcement physically stopped Duggar
from contacting his attorney and then interrogated him—requiring suppression.
These issues, individually and collectively, require reversal and a new trial.
I. THE DISTRICT COURT VIOLATED DUGGAR’S RIGHT TO

PRESENT A COMPLETE DEFENSE
This is the rare case where a criminal defendant was deprived of “a
meaningful opportunity to present a complete defense.” Crane v. Kentucky, 476 U.S.
683, 690-91 (1986). However, instead of engaging with Duggar’s argument, the
Government attempts to change the rules and rewrite history. But the record below
and an accused’s “right to present his own witnesses to establish a defense” stand
strong. Washington v. Texas, 388 U.S. 14, 19 (1967).
The Government asks this Court to adopt a deferential standard of review,
although the standard is de novo where, as here, an evidentiary ruling implicates a
constitutional right. See United States v. West, 829 F.3d 1013, 1017 (8th Cir. 2016).
And the Government curiously asks this Court to conclude the district court imposed
“no limitation on Duggar’s questioning of [Caleb Williams] with respect to any of
the events of circumstances to which he was a percipient witness.” Appellee Br. at
13 (emphasis in original). But the limitation was prohibitive: “if he says he wasn’t
there, you can’t talk about what happened” (TR., Vol. 5, p. 911) and if “he wasn’t
present on the lot” and “assuming he testifies that he’s never remoted in, that’s as
far as you are going to get” (TR., Vol. 6, p. 1364).
Furthermore, in its response, the Government refuses to acknowledge the
district court’s misunderstanding of Holmes v. South Carolina, 547 U.S. 319 (2006),
was not an isolated occurrence even though the court repeatedly applied an
unconstitutional standard. Appellee Br. at 16.
A. The Standard of Review is De Novo
This Court reviews evidentiary rulings de novo when they implicate a
constitutional right including the right to present a complete defense. West, 829 F.3d
at 1017 (“We review evidentiary rulings for an abuse of discretion, but our review
is de novo when the challenge implicates a constitutional right”). See also United
States v. Dozier, 31 F.4th 624, 627 (8th Cir. 2022); United States v. White, 557 F.3d
855, 857 (8th Cir. 2009).
Seeking deferential review, the Government mischaracterizes Duggar’s
argument as “a garden-variety abuse-of-discretion claim” and a “garden-variety
prejudice claim.” Appellee Br. at n. 4. The Government suggests the district court’s
evidentiary rulings—even those implicating constitutional rights—are afforded
“wide latitude.” Appellee Br. at n. 4. The Government is wrong.
The Government’s reliance on United States v. Aungie, 4 F.4th 638, 644 (8th
Cir. 2021) is misplaced as there was no argument in that case the court’s ruling
implicated a constitutional right. Appellee Br. at 12. The Government also cites
United States v. Meisel, 875 F.3d 983 (10th Cir. 2017), which reviewed the
admissibility of alternative perpetrator evidence for abuse of discretion. Appellee
Br. at 12. But this out-of-circuit precedent does not help the Government.
There, the district court allowed Meisel to introduce alternative perpetrator
evidence. See Meisel, 875 F.3d at 998. Meisel argued the court erred in refusing to
permit him to argue—after admitting the evidence—someone else committed the
crime. See id. (“Meisel concedes the district court allowed him to present to the jury
any evidence he had regarding other individuals’ access, potential or actual, to his
computer and external hard drive. He, nevertheless, argues that having allowed him
to introduce such evidence, the district court’s real error was in not allowing him to
utilize the term ‘alternative perpetrator’ in presenting his case to the jury”). The
Tenth Circuit concluded that because the court admitted alternative perpetrator
evidence, the decision to preclude argument would be reviewed for abuse of
discretion. Id. at 998-99. The Tenth Circuit noted, “…as demonstrated by the parties’
closing arguments, and borne out by the entirety of the trial transcript, it is
abundantly clear the district court, the parties, and the jury fully understood Meisel
was asserting J.H. and/or W.R. was responsible for the child pornography found on
Meisel’s external hard drive.” Id. at 999 n. 20.
But here the jury here did not hear alternative perpetrator evidence—because
while Duggar could call Williams, the court expressly ruled that if Williams denied
being at the business on specific dates and denied remotely accessing the computer,
Duggar could not further inquire and could not impeach Williams with his
conviction. (See TR., Vol. 5, p. 911; TR., Vol. 6, p. 1364).
Because the evidentiary rulings implicated Duggar’s ability to present a
complete defense, de novo review applies. See, e.g., Dozier, 31 F.4th at 628–29;
West, 829 F.3d at 1017–19.
B. The Government Attempts to Rewrite History
The Government portrays Duggar’s defense vis-à-vis Williams as fanciful and
far-fetched—however, it was anything but. And the Government’s claim that the
district court premised its ruling on Duggar’s ability to call and impeach Williams
on Duggar’s failure to establish “some minimal connection between Williams and
any of the events relevant to the charged offenses” is belied by the record. Appellee
Br. at 14.
Through evidence and proffer, Duggar established more than a “minimal
connection” between Williams and the offenses; the district court simply concluded
the Government’s evidence was more convincing. But this was a question for the
jury. Facing this insurmountable hurdle, the Government argues the district court’s
analysis was not premised on its perception of the strength of the Government’s case
because that would be patently unconstitutional.
1. Duggar Established a Nexus Between Williams and the Charges
Duggar adduced evidence that: law enforcement failed to investigate Williams
(TR., Vol. 3, pp. 302-06) and never analyzed Williams’ devices (TR., Vol. 4, p. 817);
the computer could have been accessed remotely (TR., Vol. 5, pp. 1092-93; 1101;
1108-11; TR., Vol. 4, pp. 790-98); the images and videos were “streamed,”
suggesting remote access was possible (TR., Vol. 5, pp. 1080-90; TR., Vol. 4, p.
879); Williams regularly used the computer (TR., Vol. 4, pp. 727-31; Def. Ex. 48);
and the Government withheld evidence concerning Williams (TR., Vol. 5, pp. 898-
915). Duggar was prepared to introduce text messages between Williams and
Duggar suggesting Williams’ presence during the relevant time period (TR., Vol. 6,
p. 1356).
If permitted to inquire, Duggar would have established Williams: worked at
the business; had familiarity with the computer and its software; engaged in eBay
sales and utilized the computer to print labels; sent a text message on May 7, 2019
offering to watch the business that week; spent the night one mile from the business
on May 9, 2019; and concealed all metadata on documents provided to the
Government in an attempt to establish he was not present. (TR., Vol. 6, pp. 1355-
58).
Further demonstrating a nexus, the Government concedes the Linux
installation program was downloaded on May 11, 2019. Appellee Br. at 4 (citing
Gov’t Ex. 28 at 12). And Government counsel proffered Williams did not leave
Arkansas until May 11, 2019 which, in the Government’s view, ruled him out as a
suspect. Appellee Br. at 10 (quoting TR., Vol. 6, p. 1359).
This evidence demonstrates a nexus between Williams and the charges. Even
accepting the Government’s proffer, Williams was in Arkansas, Missouri, or Illinois
on each relevant date. Indeed, according to the Government, Williams was in
Arkansas, Missouri, and Illinois on May 11, 2019. Appellee Br. at 10 (quoting TR.,
Vol. 6, p. 1359). Thus, to the extent Williams’ location on any day matters, the
Government’s proffer reveals the possibility he could have been in more than one
place on any given day.
The district court’s conclusion that Duggar failed to establish a “minimal
connection” between Williams and the offenses is refuted by the record. Duggar
adduced and proffered evidence that permitted him to question and impeach
Williams concerning his actions—but the district court believed the Government’s
proffered counterevidence. This was a decision for the jury, not the court.
The Constitution guarantees the right to a “meaningful opportunity to present
a complete defense.” Holmes, 547 U.S. at 324 (quotations omitted). This limits a
district court’s ability to impose “arbitrary” rules, including those that exclude
“important defense evidence” without serving “any legitimate interests,” or are
otherwise “disproportionate to the purposes they are designed to serve.” Id. at 324–
25 (quotation marks and citation omitted). “The constitutional right to present a
complete defense undergirds a defendant’s right to present evidence that a third party
committed the crime of which he is accused.” United States v. Moore, 590 F. Supp.
3d 277, 281 (D.D.C. 2022) (citation omitted). See also Boykin v. United States, 738
A.2d 768, 773 (D.C. 1999) (“The Sixth Amendment guarantees to criminal
defendants not only the right to confront and cross-examine witnesses against them,
but also the right to present evidence that someone else committed the offense for
which [they are] on trial”) (quotation marks omitted).
The district court’s ruling that Duggar would not be permitted to inquire
further or impeach Williams’ credibility if Williams denied being on the lot or
remotely accessing the computer constituted an arbitrary ruling in violation of
Duggar’s rights as the evidence established a sufficient nexus between Williams and
the offenses.
A trial court should “resolve close questions of admissibility in this setting in
favor of inclusion, not exclusion.” Winfield v. United States, 676 A.2d 1, 6 (D.C.
1996). “[I]f the evidence [that someone else committed the crime] is in truth
calculated to cause the jury to doubt, the court should not attempt to decide for the
jury that this doubt is purely speculative and fantastic but should afford the accused
every opportunity to create that doubt.” United States v. Crosby, 75 F.3d 1343, 1349
(9th Cir. 1996) (quotations omitted). The district court deprived Duggar of the right
to present a complete defense so the jury could make a reasoned determination about
the strength of the Government’s case. See, e.g., Winfield, 676 A.2d at 7 (cautioning
against “excessive mistrust of juries” and noting that while “the trial court retains
broad discretion to prevent the cumulation of third-party perpetrator evidence,
sifting the relevance of that evidence is largely about drawing commonsense
inferences from uncomplicated facts, something we regularly entrust to juries”)
(emphasis in original; citation omitted).
The Government cites Armstrong v. Hobbs, 698 F.3d 1063 (8th Cir. 2012),
arguing this Court upheld a rule excluding evidence tending to show another person
committed the crime charged “unless that evidence points directly to the guilt of the
third party.” Appellee Br. at 17. But Armstrong was a habeas corpus case in which
the question before this Court was simply whether the state court’s decision was
“contrary to, or an unreasonable application of, clearly established federal law.”
Armstrong, 698 F.3d at 1067. This extremely deferential review mandated
affirmance if “no ‘fairminded jurists could disagree’ on the correctness of the state
court’s decision.” Id. at 1066 (quotations omitted). Armstrong’s unremarkable
holding that a ruling was not contrary to “clearly established federal law” is not
relevant.
Duggar’s evidence that Williams had the access, opportunity, knowledge, and
motive to commit the crimes charged was more than sufficient.
2. The District Court Prohibited Meaningful Questioning of

Williams
The Government’s suggestion that the district court’s limitation of Duggar’s
ability to inquire was merely “hypothetical” and that Duggar was given “leeway to
call Williams and establish through his testimony his capacity to have committed
these offenses” finds no support in the record and is based on a false premise.
Appellee Br. at 14.
First, Duggar had already established Williams’ capacity to commit these
crimes. Second, the limitation imposed was concrete, making it impossible for
Duggar to call Williams to testify.
The district court expressly ruled Duggar would only be permitted to ask
Williams “whether or not he has knowledge or recollection of being present on the
car lot on or about May 13 through May 16” and “if he ever remoted in to the office
machine, and if so, the time periods in which he would have remoted in.” (TR., Vol.
6, p. 1363). The court ruled if “he wasn’t present on the lot” and “assuming he
testifies that he’s never remoted in, that’s as far as you are going to get and the Court
would find in that instance under 403 that the 609 conviction that you have discussed
should not be allowed[.]” (Id. at 1364). The ruling was clear: if Williams denied
being present and remotely accessing the computer, Duggar could not impeach his
credibility. This was not a “singular, narrow, and contingent restriction”—it was an
exclusion of testimony from a critical witness the district court apparently ruled out
as a viable perpetrator. Appellee Br. at 14.
“Any party, including the party that called the witness, may attack the
witness’s credibility.” Fed. R. Evid. 607. Williams’ statements to Government
investigators made clear he would deny being present and remotely accessing the
computer. As such, Duggar was prepared to impeach Williams’ credibility by
introducing evidence Williams had a felony conviction for a sex offense involving a
minor.
The ability to impeach a witness’ character for truthfulness with a criminal
conviction is mandated where the probative value of the evidence is not substantially
10
outweighed by any of the dangers in Rule 403. See Fed. R. Evid. 609 (a)(1)(A). Even
in civil cases, this Court has concluded a district court erred in precluding
impeachment with prior felony sex convictions where a witness’ credibility is
paramount. See Am. Mod. Home Ins. Co. v. Thomas, 993 F.3d 1068, 1071 (8th Cir.
2021) (“Rule 609 ‘is based on the common sense proposition that one who has
transgressed society’s norms by committing a felony is less likely than most to be
deterred from lying under oath’”) (quoting Cummings v. Malone, 995 F.2d 817, 826
(8th Cir. 1993)). In a criminal case, this is even more important.
The Government’s suggestion that the district court did not violate Duggar’s
right to compel a witness because Williams was present lacks merit. Appellee Br. at
13. Unless a defendant is permitted to meaningfully question a witness whose
presence he has compelled, this right rings hollow. See Anderson v. Groose, 106
F.3d 242, 246 (8th Cir. 1997) (“although by its terms
the Compulsory Process Clause confers only the right to compel witnesses to appear
through use of subpoena power, the Clause has consistently been given a broader
interpretation. This broader interpretation necessarily encompasses the right to
present witness testimony, for the right to compel a witness’s presence in the
courtroom could not protect the integrity of the adversary process if it did not
embrace the right to have the witness’s testimony heard by the trier of fact”) (citation
omitted). The Government’s silence on this authority speaks volumes.
11
3. The District Court Consistently and Repeatedly Misconstrued
Holmes
The district court applied a test the Supreme Court held unconstitutional—but
the Government attempts to sidestep this issue by arguing the court made an isolated
mistake when quoting a section of Holmes. Appellee Br. at 16. What the record
actually reveals is that the court read approvingly from this section of Holmes during
trial and during an on-the-record conference the previous day. Contrary to the
Government’s argument that the district court “did not misunderstand or misapply
governing principles” (Appellee Br. at 16), the court expressly stated during that
conference, “this concept that the greater the strength of the evidence of the
government pointing to the defendant relative to the strength of this nexus, that that
weighs into part of the Court’s analysis as to whether it will include or permit or
exclude that.” (TR., Vol. 5, pp. 910-11) (emphasis added). To this, the Government
has no response.
The record reveals the district court retained its misapprehension of Holmes
when effectively preventing Duggar from calling Williams by unconstitutionally
considering the strength of the Government’s case.
C. This Error Was Not Harmless
The Government’s assertion the district court’s error was harmless is based
on a false premise: that Williams must have been the individual who committed the
offenses. See, e.g., Moore, 590 F. Supp. 3d at 283 (“Since the third party is not on
12
trial, the evidence proffered need not ‘prove or even raise a strong probability that a
person other than the defendant committed the offense’ so long as it ‘tend[s] to create
a reasonable doubt” as to the defendant’s guilt’”) (citations omitted).
Here, Duggar was entitled to present evidence that someone else had the
motive, opportunity, and knowledge to commit the offenses and the Government’s
assertion that no evidence inculpates Williams is inaccurate and misses the mark.
Furthermore, the district court’s speculation that Duggar made a strategic
decision not to call Williams as it would “invite the Government’s proffered rebuttal
testimony” is inaccurate. Appellee Br. at 21 (quoting R. Doc. 156, at 20). The
defense wanted the jury to consider the totality of evidence related to Williams—but
the district court made that impossible. Had Duggar called Williams and Williams
denied being on the lot and remotely accessing the computer, Duggar was not
permitted to further inquire or impeach Williams. At that point, the Government
would have had no reason to introduce rebuttal evidence. However, had the district
court permitted both sides to introduce evidence regarding Williams, the jury would
have been able to evaluate whether the Government proved Duggar guilty beyond a
reasonable doubt. That is not only what the law allows, but what the Constitution
requires.
The Government also argues, “Duggar has never explained how Williams
could have physically installed the partition on the desktop when he was, according
13
to all available evidence, not even in the same state on the date of installation.”
Appellee Br. at 22. First, as noted supra, it was possible for Williams to be in more
than one state on any given day. Second, the only “available evidence” concerning
Williams’ whereabouts—because he chose to speak with the Government but not
the defense—was untested by the rules of evidence and cross examination. The
Government has never introduced any evidence, credible or otherwise, that Williams
was not in Arkansas on May 13.
Moreover, the crime charged was not the insertion of a thumb drive or the
installation of an operating system—but the possession of child pornography which
the evidence established could have been, and likely was, accessed remotely. Even
the Government’s expert admitted he could not rule this out.
Whether the Government had effectively eliminated Williams as a suspect
was a question Duggar was entitled to have answered by the jury. But the district
court deprived Duggar of his right to present a complete defense.
II. THE DISTRICT COURT ERRED IN DENYING DUGGAR’S MOTION

TO SUPPRESS STATEMENTS
It is undisputed that when Duggar attempted to call his lawyer, a federal agent
wearing a ballistic vest physically took his phone from his hand—and then
interrogated him in a law enforcement vehicle. This was no oversight; it was a plan
executed by law enforcement who conducted surveillance, waiting for Duggar to
arrive before executing a search warrant at a business when there was no reason its
14
owner had to be present. And the district court correctly found the business was
accessible only by a divided highway with no sidewalk and was “in the middle of
nowhere.” (TR., Vol. 7, p. 1584).
Faced with binding precedent that “a suspect who has invoked the right to
counsel cannot be questioned regarding any offense unless an attorney is actually
present,” Davis v. United States, 512 U.S. 452, 458 (1994) (emphasis added), and
the fact that this is precisely what happened, the Government argues Duggar was not
in custody—a contention this Court should reject.
A. Duggar Was in Custody
The Government relies exclusively on the factors set out in United States v.
Griffin, 922 F.2d 1343, 1349 (8th Cir. 1990). But this Court noted these factors are
“decidedly non-exhaustive.” Id. As this Court later clarified, the “analysis depends
upon a review of the totality of the circumstances, and ‘[t]he ultimate test is whether
a reasonable person in that position would have felt free to end the interview.’”
United States v. Sanchez, 676 F.3d 627, 630–31 (8th Cir. 2012) (quoting United
States v. Aldridge, 664 F.3d 705, 711 (8th Cir. 2011)). See also Yarborough v.
Alvarado, 541 U.S. 652, 662 (2004) (whether an interrogation is custodial “must be
determined based on how a reasonable person in the suspect’s situation would
perceive his circumstances”). Here, the circumstances clearly demonstrate a
15
reasonable person in Duggar’s position would have perceived himself to be in
custody.
Federal agents surveilled Duggar’s business, waiting for him to arrive. (R.
Doc. 77 at 156). The business was accessible only by a divided highway with no
sidewalk and was “in the middle of nowhere.” (Id. at 250; TR., Vol. 7, p. 1584).
When Duggar arrived, agents—armed and wearing tactical gear—converged in six
vehicles. (R. Doc. 77 at 155–57, 159).
Agents Faulkner and Aycock exited their vehicle and went directly to Duggar.
(Id. at 160). Duggar immediately took out his phone and said he was calling his
attorney. (Id.). Faulkner took the phone from Duggar’s hand, preventing him from
calling counsel. (Id. at 160–61).
The agents secured the business. (Id. at 30). Faulkner testified Duggar would
not have been able to enter the buildings on the lot without an escort. (Id. at 31). An
armed agent remained in Duggar’s “vicinity keeping situational awareness” at all
times. (Id. at 166).
Within minutes of swarming the business and seizing Duggar’s phone,
Faulkner and Aycock asked Duggar whether he would answer questions. (Id. at 32–
33). The agents then escorted Duggar to a law enforcement vehicle. (Id. at 33).
Duggar was not permitted to contact his lawyer and was told his lawyer would
not be permitted to come to the scene while the warrant was being executed. (Id. at
16
161, 177-78). Duggar was not allowed to leave in the vehicle in which he arrived (it
was being searched) and the keys to other vehicles on the lot were stored in the office
(which was also being searched). (Id. at 168).
Duggar—blindsided in a rural area, surrounded by armed agents wearing
ballistic vests, and without access to a vehicle—attempted to call his attorney only
to have his phone physically taken and was told his attorney would not be allowed
on the scene. Yet, against this backdrop, the Government argues Duggar “maintained
unencumbered freedom of movement” and that the district court was correct in
concluding a reasonable person in Duggar’s position would have perceived himself
as not having been “deprived of his freedom of action in any significant way.”
Miranda v. Arizona, 384 U.S. 436, 444 (1966).
The Government clings to the notion that Duggar was allegedly told he was
free to leave—even though the Government is silent about the inconvenient fact that
he had no means to leave. Appellee Br. at 25. He would have effectively had to walk
on the shoulder of a rural highway to leave the police-dominated environment.
The Government also contends Duggar was not restrained. Appellee Br. at 25.
But restraint is about more than being handcuffed. Duggar was placed in a police
vehicle with two armed agents. (R. Doc. 77 at 170–71). He was told his attorney
could not join him after he attempted to call counsel, and he had no access to a
vehicle.
17
In suggesting Duggar voluntarily acquiesced in the agents’ request he answer
questions, the Government claims—though not relevant to custody—Duggar posed
the first question himself, implausibly suggesting he mentioned child pornography.
Appellee Br. at 26. However, the record reveals that as they approached Duggar,
agents stated the investigation involved allegations of “digital contraband.” (R. Doc.
77 at 165). And nothing on the recorded interview remotely suggests Duggar asked
this question. More importantly, it is absurd to argue Duggar—who tried to call his
lawyer and was told his lawyer could not come to the scene—was in a position to
“voluntarily acquiesce” to the agents’ “invitation” to speak with them. Appellee Br.
at 26. What actually transpired is inconsistent with the Government’s claim the
agents did not employ coercive tactics. Appellee Br. at 27.
Remarkably, the Government takes issue with the district court’s conclusion
that the scene was “police-dominated.” Appellee Br. at 28. A business in a rural area
inundated with armed agents, who established total control over the area and Duggar,
epitomizes police domination.
The Government also attempts to draw significance to the fact that Duggar
was not arrested. Appellee Br. at 29. However, what transpired after Duggar tried to
call his attorney and after he was interrogated does not reflect how a reasonable
person in Duggar’s position would have perceived his situation when agents seized
18
his phone from his hand, deprived him of access to counsel, and seated him in a
police vehicle for questioning.
The Government’s refusal to acknowledge a person is in custody for purposes
of this analysis when he is “otherwise deprived of his freedom of action in any
significant way” exposes the precariousness of its position. See Miranda, 384 U.S.
at 444 (emphasis added). Indeed, while the focus remains on Duggar’s perception of
the circumstances, the agents interrogating Duggar read him his Miranda rights
which attach “only when a suspect interrogated by the police is ‘in custody.’”
Appellee Br. at 23 (quoting Thompson v. Keohane, 516 U.S. 99, 102 (1995)). That
agents believed Duggar was entitled to a Miranda warning is significant.
This Court should conclude a reasonable person in Duggar’s position would
have felt “deprived of his freedom of action in any significant way.” See Miranda,
384 U.S. at 444.
B. The Seizure of Duggar’s Phone Violated His Rights
In the alternative, the Government argues law enforcement’s physical
interference with Duggar’s attempt to call counsel was not problematic because it
was an ineffective “pre-interview invocation” of his right to counsel. Appellee Br.
at 32. The Government acknowledges Duggar’s invocation is valid if it was “for the
purpose of having counsel at the interrogation.” Id. (citing United States v. Doe, 170
19
F.3d 1162, 1166 (9th Cir. 1999)). And Duggar clearly attempted to contact counsel
to have counsel present at the scene where the interrogation occurred.
Duggar invoked his right to counsel by attempting to call counsel as armed
agents in tactical gear rapidly descended upon him in six vehicles. This was not pre-
custodial. He was surrounded by agents, two of whom were making a beeline toward
him. At that moment, Duggar had already been “deprived of his freedom of action
in any significant way,” Miranda, 384 U.S. at 444, and no reasonable person in his
position would have felt free to leave. Indeed, fleeing at the sight of police creates a
reasonable suspicion an individual is engaged in unlawful activity. See, e.g., United
States v. Horton, 611 F.3d 936, 940 (8th Cir. 2010) (reasonable suspicion exists
when officers witness flight upon seeing police).
In a last-ditch effort to avoid suppression, the Government argues, “even if
(1) Duggar effectively invoked his right to counsel, and (2) the interview qualified
as custodial, such that (3) his Miranda rights were implicated, Duggar knowingly
and voluntarily waived them.” Appellee Br. at 32. This argument fails.
Where a person “indicates in any manner, at any time prior to or during
questioning, that he wishes to remain silent, the interrogation must cease” and where
he “states that he wants an attorney, the interrogation must cease until an attorney is
present.” Miranda, 384 U.S. at 473–74 (emphasis added). The Supreme Court has
repeatedly “held that a suspect who has invoked the right to counsel cannot be
20
questioned regarding any offense unless an attorney is actually present.” Davis, 512
U.S. at 458 (emphasis added). Law enforcement made a choice here: instead of
safeguarding Duggar’s rights, they physically stopped him from speaking with
counsel and told him his lawyer could not come to the scene. (R. Doc. 77 at 177-78).
As the Supreme Court cautioned nearly 60 years ago, “[n]o system worth
preserving should have to fear that if an accused is permitted to consult with a
lawyer, he will become aware of, and exercise, these rights. If the exercise of
constitutional rights will thwart the effectiveness of a system of law enforcement,
then there is something very wrong with that system.” Escobedo v. State of Ill., 378
U.S. 478, 490 (1964) (footnotes omitted). “[T]he accused must be permitted to
consult with his lawyer.” Id. at 492.
III. THE DISTRICT COURT ERRED IN PERMITTING THE

GOVERNMENT’S EXPERT TO TESTIFY CONCERNING EXIF
METADATA AND IN PRECLUDING DUGGAR’S EXPERT FROM
OPINING ON THE UNRELIABILITY OF THE DATA AND THE
METHODOLOGY
A. The District Court Abused Its Discretion by Allowing Fottrell to Testify

About EXIF Metadata
The Government argues Fottrell was qualified to offer expert opinions about
the extraction of metadata from devices. Appellee Br. at 39. But that is not the issue
before this Court. The district court abused its discretion by permitting Fottrell to
draw inferences from the metadata without providing necessary testimony about the
creation of that metadata and without pretrial notice. Given that the Government’s
21
entire case was predicated on attempts to place Duggar at the business at certain
times, the error was far from harmless.
Under Federal Rule of Criminal Procedure 16(a)(1)(G)(iii), the Government
must disclose “the expert’s opinions, bases for the opinions, and reasons for the
opinions.” United States v. Spotted Horse, 914 F.3d 596, 601 (8th Cir. 2019). But
the Government only disclosed Fottrell would testify “that digital photos taken by
[Duggar] that contain metadata, including geolocation information, as outlined in
Special Agent Faulkner’s reports provided in the discovery were recovered from the
MacBook.” (R. Doc. 134-1 at 2-3).
Because the disclosure was inconsistent with Fottrell’s testimony, the
Government attempts to reframe the reference to digital photos and metadata as
describing a general topic about which Fottrell would testify. Appellee Br. at 40
(“Fottrell was expected to offer expert testimony on ‘digital photos taken by
[Duggar] that contain metadata, including geolocation information, . . . recovered
from the MacBook’”) (alterations in original). While the Government may disclose
expert opinions “in summary fashion,” Spotted Horse, 914 F.3d at 601, the
Government disclosed a specific opinion Fottrell would offer: “that digital photos
taken by [Duggar] that contain metadata . . . were recovered from the MacBook.”
(R. Doc. 134-1 at 2-3).
22
The issue before this Court is not that Fottrell testified photos were recovered
or contained metadata, but that he testified: (1) he uses metadata to establish identity
and location; (2) the metadata contained coordinates; (3) he plugged those
coordinates into Google Maps; and (4) Duggar’s iPhone was located at the business
at certain times. (TR., Vol. 4, pp. 621–25).
This is not only a failure to disclose. Fottrell was never qualified to offer this
critical testimony in the first place. He lacks any expertise concerning the technology
used to create the coordinates—a necessary basis for conclusions regarding the
location of a phone. As explained in United States v. Crawford, 1:19-CR-170, 2021
WL 2367592, at *3 (W.D.N.Y. 2021), opinions about data extracted from cell
phones require expert testimony explaining the process by which geolocation data is
produced. Though he referred to geolocation data as “GPS coordinates,” Fottrell
lacked the expertise to explain how those coordinates were produced—and never
attempted to offer an explanation.
The Government relies exclusively on inapposite authority. Citing United
States v. Jones, 918 F. Supp. 2d 1, 5 (D.D.C. 2013), the Government argues an
explanation of the technology used to produce the coordinates is unnecessary
because courts recognize the reliability of cell-phone metadata. Appellee Br. at 41.
But Jones found only that the use of cell phone location records based on cell-site
analysis is recognized as a reliable methodology for determining the location of a
23
phone. Jones, 918 F. Supp. 2d at 5. The ultimate reliability of cell-site analysis, GPS
technology, Wi-Fi, or any other technology used to track the location of phones is
not the issue, because Fottrell never explained what technology produced the
coordinates. In other words, the issue is not whether Rule 702(c) or (d) is satisfied
(whether the “principles and methods” are reliable). Fottrell never offered the expert
testimony necessary to support his conclusions because he lacked the requisite
“scientific, technical, or other specialized knowledge.” Fed. R. Evid. 702(a).
The Government attempts to shift the focus to authentication under Rules 901
and 902—but, again, that is not the issue. Indeed, Crawford makes clear a witness
authenticating geolocation data does not eliminate the need for expert testimony
explaining how the data was produced. Crawford, 1:19-CR-170, 2021 WL 2367592,
at *3. The Government’s reliance on United States v. Banks, 43 F.4th 912 (8th Cir.
2022) is similarly misplaced. Banks addressed the issue of authenticating photos
extracted from phones, not whether the photos were appropriately the subject of
expert testimony regarding their metadata. See id. at 918.
The Government asserts Crawford—the most recent and relevant case—does
not apply. But as the Government concedes, Crawford required “an expert witness
to explain and support the methods used by Google to obtain the geolocation data”
and the expert in Crawford had “no expertise in how the underlying records were
produced.” Appellee Br. at 42 (quoting Crawford, 1:19-CR-170, 2021 WL 2367592,
24
at *3). Identically, Fottrell has no expertise in geolocation technology. Knowing an
iPhone automatically attaches geolocation and date-and-time location to a photo and
how to extract data does not equate to knowledge of how the phone produced the
data or how Google Maps generates location information.
Finally, the Government’s reliance on Fottrell’s efforts to “verify” the
accuracy of metadata misses the point. Fottrell testified he input the coordinates into
Google Maps to confirm they corresponded to the business. (TR., Vol. 4, p. 623).
But this is a red herring. The issue is not whether the coordinates correspond to the
business, but that the Government never offered qualified expert testimony the
coordinates reliably indicate the location of the phone when the photos were taken
and the way in which Google Maps generates location information. Whether two
photos depict an unplated car and a computer is irrelevant to the fundamental
problem that Fottrell has no idea how an iPhone produces geolocation coordinates
and how Google Maps operates.
Fottrell offered opinions he was not qualified to offer, that were not supported
by an explanation of the underlying technology, and about which Duggar was never
notified. The district court erred in permitting Fottrell to offer this testimony.
B. The District Court Erred by Excluding Duggar’s Expert’s Testimony

About EXIF Metadata
The Government argues Duggar should have “exposed any unreliability in the
metadata” through cross-examination, not exclusion. Appellee Br. at 42. But the
25
Government objected when Duggar attempted to challenge the reliability of
Fottrell’s opinions with testimony from Bush. The district court erred by preventing
Bush from offering rebuttal testimony that the Government invited and which she
was qualified to provide.
Duggar’s evidentiary proffer established Bush would testify the methods
Fottrell used to interpret metadata were unreliable. The Government argues Bush’s
proffered testimony is contrary to Rule 703 because she had not personally analyzed
the photos’ metadata. Appellee Br. at 44–45.
But the Government’s position misses the point. Bush would not have testified
about the specific metadata at issue. (TR., Vol. 6 at 1319). Rather, she would have
critiqued the methods Fottrell used to analyze the metadata—namely, his reliance
on Windows Photos. (Id. at 1312–18). Bush’s proffered testimony satisfied Rule 703
because it was based on information about which she was made aware during trial
and personally observed.
Further, by asking Bush to testify about the photos’ metadata, the Government
opened the door to this proffered rebuttal testimony. The Government made “unfair
prejudicial use,” United States v. Midkiff, 614 F.3d 431, 442 (8th Cir. 2010), of the
photos by asking Bush to confirm the time displayed on the Government’s exhibit
in a clear attempt to bolster its argument the photos place Duggar at the business at
certain times. (See TR., Vol. 6, pp. 1235–38, 1261, 1263; Gov’t. Exs. 74, 80). The
26
Government argues this was not unfair because Bush was allowed to clarify she had
not independently confirmed the accuracy of the timestamps displayed in the
exhibits. Appellee Br. at 45. However, the fact remains that the Government elicited
testimony from Bush regarding the time displayed in the photos’ metadata, but the
district court prevented Bush from challenging the Government’s assumption that
those timestamps actually indicate when the photo was taken—an assumption she
would have challenged by testifying about the unreliability of Fottrell’s
methodology.
Furthermore, the Government insists Fottrell never asserted Windows Photos
is a forensic tool. Appellee Br. at 46. But that is irrelevant. Fottrell used forensic
tools to extract the metadata and not to display it—but Bush would have opined he
did not use a forensic tool to analyze it. Windows Photos, which is not a forensic
tool, was what Fottrell exclusively used to determine when photos were taken. (TR.,
Vol. 6, at 1317–18). As Bush proffered and courts recognize, metadata is unreliable
because it is complex and dependent on settings including time zones of every device
that creates, receives, or otherwise manipulates a photo to which metadata is
attached.1 (See id. at 1314–18). See, e.g., Pearson v. U.S. Bank Nat’l Ass’n, No. 13-
1
The Government concedes that in United States v. Boyajian, No. 09-cr-933, 2012
WL 4094977 (C.D. Cal. 2012), it argued metadata produced by standalone cameras
is unreliable. Appellee Br. at 43. Bush was prepared to testify metadata produced by
phones relies on the time zone set on the phone, which can be misleading, especially
when a photo is sent from one phone to another. (TR., Vol. 6, pp. 1315–16).
27
889, 2014 WL 4163020, at *17 (D. Minn. Aug. 21, 2014) (document creation date
testimony based on metadata is speculative “especially in light of the common
understanding that ‘creation dates’ in metadata may be altered by copying a
document or moving it to a new location”); Florida Bar v. MacNamara, 132 So. 3d
165, 170 (Fla. 2013).
The district court erred by allowing Fottrell to offer opinions about metadata
and by prohibiting Bush from challenging his methodology. As specific dates and
times were the house of cards on which the Government’s case was built, this was
not harmless and requires reversal.
CONCLUSION
Duggar respectfully requests that this Court vacate his conviction, suppress
his statement, and remand for a new trial.
Respectfully submitted,
/s/ Justin K. Gelfand

JUSTIN K. GELFAND
IAN T. MURPHY
ATTORNEYS FOR APPELLANT
St. Louis, MO 63105
Telephone: (314) 390-0234
Facsimile: (314) 485-2264
ian@margulisgelfand.com
28
---and---
TRAVIS W. STORY
Story Law Firm, PLLC
ATTORNEY FOR APPELLANT
2603 E. Main Drive, Suite 6
Fayetteville, AR 72704
Telephone: (479) 443-3700
travis@storylawfirm.com
29
CERTIFICATES OF SERVICE AND COMPLIANCE
Certificate of Service
I hereby certify that I filed the foregoing through the Court’s CM/ECF system
which will provide notice of filing to all counsel of record.
Certificate of Compliance
I hereby certify that I prepared this brief, filed on December 27, 2022, using
Microsoft Word version 16.55 (2021). I further represent that this brief complies
with the type-volume limitations in Federal Rule of Appellate Procedure
32(a)(7)(B). This brief contains 6,478 words. In making this certification, I relied
upon the word count feature of Microsoft Word version 16.55 (2021). This brief was
prepared using size 14 Times New Roman font. Furthermore, the computer file
supplied has been scanned and is virus-free.
/s/ Justin K. Gelfand

JUSTIN K. GELFAND
IAN T. MURPHY
ATTORNEYS FOR APPELLANT
St. Louis, MO 63105
Telephone: (314) 390-0234
Facsimile: (314) 485-2264
ian@margulisgelfand.com
30

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______________________________________________________________

IN THE UNITED STATES COURT OF APPEALS

UNITED STATES OF AMERICA,

Appeal from the United States District Court

REPLY BRIEF OF APPELLANT

Attorney for Appellant

TABLE OF CONTENTS ........................................................................................... i

TABLE OF AUTHORITIES ................................................................................... iii

I. THE DISTRICT COURT VIOLATED DUGGAR’S RIGHT TO PRESENT A

A. The Standard of Review is De Novo .............................................................2

B. The Government Attempts to Rewrite History .............................................4

1. Duggar Established a Nexus Between Williams and the Charges ............5

2. The District Court Prohibited Meaningful Questioning of Williams ........9

3. The District Court Consistently and Repeatedly Misconstrued Holmes .....

C. This Error Was Not Harmless .....................................................................12

II. THE DISTRICT COURT ERRED IN DENYING DUGGAR’S MOTION TO

A. Duggar Was in Custody ..............................................................................15

B. The Seizure of Duggar’s Phone Violated His Rights .................................19

III.THE DISTRICT COURT ERRED IN PERMITTING THE GOVERNMENT’S

B. The District Court Erred by Excluding Duggar’s Expert’s Testimony

CERTIFICATES OF SERVICE AND COMPLIANCE .........................................30

Armstrong v. Hobbs, 698 F.3d 1063 (8th Cir. 2012) .............................................8, 9

Boykin v. United States, 738 A.2d 768 (D.C. 1999) ..................................................7

Crane v. Kentucky, 476 U.S. 683 (1986) ...................................................................1

Cummings v. Malone, 995 F.2d 817 (8th Cir. 1993) ...............................................11

Davis v. United States, 512 U.S. 452 (1994) .................................................... 15, 20

Escobedo v. State of Ill., 378 U.S. 478 (1964).........................................................21

Florida Bar v. MacNamara, 132 So. 3d 165 (Fla. 2013) ........................................27

Holmes v. South Carolina, 547 U.S. 319 (2006) ...................................... 2, 7, 11, 12

Thompson v. Keohane, 516 U.S. 99 (1995) .............................................................19

United States v. Aungie, 4 F.4th 638 (8th Cir. 2021).................................................3

United States v. Banks, 43 F.4th 912 (8th Cir. 2022) ..............................................24

United States v. Crawford, 1:19-CR-170, 2021 WL 2367592 (W.D.N.Y. 2021) .......

United States v. Dozier, 31 F.4th 624 (8th Cir. 2022) ...........................................2, 4

United States v. Jones, 918 F. Supp. 2d 1 (D.D.C. 2013) .......................................23

United States v. Moore, 590 F. Supp. 3d 277 (D.D.C. 2022) ..............................7, 12

Washington v. Texas, 388 U.S. 14 (1967) .................................................................1

Winfield v. United States, 676 A.2d 1 (D.C. 1996) ...............................................7, 8

Yarborough v. Alvarado, 541 U.S. 652 (2004)........................................................15

Anderson v. Groose, 106 F.3d 242 (8th Cir. 1997) .................................................11

Federal Rule of Criminal Procedure 16 ...................................................................21

Federal Rule of Evidence 609 ..................................................................................10

Federal Rule of Evidence 703 ..................................................................................26

Federal Rule of Evidence 901 ..................................................................................24

Federal Rule of Evidence 902 ..................................................................................24

on appeal. Duggar was precluded from presenting compelling alternative perpetrator

unconstitutional. Furthermore, the Government’s case was built on a house of cards

related to time-and-place metadata—but the district court improperly permitted the

Government’s expert to offer opinions concerning the metadata and prevented

by the Government’s expert. Finally, law enforcement physically stopped Duggar

from contacting his attorney and then interrogated him—requiring suppression.

I. THE DISTRICT COURT VIOLATED DUGGAR’S RIGHT TO

This is the rare case where a criminal defendant was deprived of “a

meaningful opportunity to present a complete defense.” Crane v. Kentucky, 476 U.S.

strong. Washington v. Texas, 388 U.S. 14, 19 (1967).

The Government asks this Court to adopt a deferential standard of review,

although the standard is de novo where, as here, an evidentiary ruling implicates a

“no limitation on Duggar’s questioning of [Caleb Williams] with respect to any of

the events of circumstances to which he was a percipient witness.” Appellee Br. at