JOSH Duggar is getting ready to demand a rehearing in his appeal after a judge denied his request for a new trial in his child pornography case, The U.S. Sun has exclusively learned.
Duggar, 35, was sentenced to 151 months in prison on child pornography charges after a jury found him guilty at trial.
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Josh's lawyer, Justin Gelfand, filed an appeal to overturn the conviction and have a new trial.
He argued that federal agents allegedly seized Josh's phone when he tried to contact his attorney during a raid at his car lot a year and a half before the arrest, as he spoke to the agents without counsel present.
The 8th U.S. Circuit Court of Appeals denied his request for a new trial.
The U.S. Sun can exclusively reveal Josh isn't giving up, as his lawyer filed for an “extension of time within which he may file his petition for rehearing in this case.”
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The court papers read: “Since the Opinion was issued, undersigned counsel has had difficulty communicating with Appellant because he is currently detained at a facility in a different state.
“It is essential that undersigned counsel discuss this Court’s opinion and the complex issues involved with Appellant before filing a petition for rehearing.”
He is asking for 14 days to file his petition for rehearing.
The extension for more time has been granted, The U.S. Sun can confirm.
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JOSH'S FIGHT
The court papers read of the court's decision to deny the new trial: "It is true that the agents read him his Miranda rights, which ordinarily might leave someone with the impression they are in custody. But when Duggar signed a form acknowledging his rights, he had the agents 'scratch out' the portion saying that he was being 'taken into custody.' Modifying the form made it clear he was free to leave.
"The second and third factors also favor the government. Duggar sat in the front passenger seat of the agents’ truck during the interview. They 'did not handcuff him, the doors remained unlocked, and he entered and exited the front seat of the vehicle on his own,' which means he' retained freedom of movement throughout the' encounter.
"And although the agents 'initiated contact with' Duggar, he still 'voluntarily acquiesced' to the questioning. Indeed, he began the interview with a question of his own—'[H]as somebody been downloading child pornography?'—and 'continued to converse' with them for about an hour.
"Finally, Duggar was not 'arrest[ed] at the termination of the questioning.' To the contrary, he ended the interview on his own and
then left the dealership—hardly an option available to someone in custody."
The judgment ended: "We accordingly affirm the judgment of the district court."
APPEALING THE RULING
The disgraced reality star filed an appeal to the conviction in October 2022.
Gelfand and the prosecution's Joshua Handell faced off during an appeal hearing in Kansas City, Missouri on February 16.
As The U.S. Sun previously reported, Duggar's lawyer argued that federal agents allegedly seized his phone when he tried to contact his attorney during a raid at his car lot.
Gelfand said in court: "[Duggar] takes out his phone, physically puts it to his ear... for the purpose of contacting his legal counsel.
"Federal agents physically took the phone out of his hand and deprived him of the ability to communicate with his legal counsel.
"He was told he was free to go. No reasonable person in his shoes at that time would believe that."
When the judge asked if Duggar could have gone to another business to make a phone call, Gelfand replied: "This lot was accessible only by a highway with no sidewalk, it was in the middle of nowhere. There was nowhere to go.
"The vehicle he came in was searched, he had no access to it. The keys to the other vehicles in the car lot were in the office. He wouldn’t be allowed to enter without an escort."
Handell for the prosecution replied: "Mr. Duggar was not in custody at any point during the search of the used car lot... Mr. Duggar was repeatedly told he was not in custody and was free to leave.
"He said his wife was pregnant and expecting soon. He may have to leave in order to contact her. The agent said that's perfectly fine.
"Mr. Duggar did leave the scene at a time of his choosing and without being arrested... Mr. Duggar voluntarily ended the interview. He was not arrested until a year and a half later."
'IT CONCERNS ME'
The judge said after hearing both sides: "I am a little concerned though... The agent knew he was trying to call his counsel. It appears that might have been the only way he could've done so.
"It does concern me when someone makes an attempt to contact counsel... and is unable to call counsel because there is no alternative way to do it. I’ve never seen that before."
The prosecution responded: "It’s not clear whether there was another way to contact counsel. One of his employees had a cell phone not seized by officers."
Duggar's legal team replied: "The agent could’ve said, 'Use my phone to contact your attorney.'"
BLAMING CALEB WILLIAMS
Also during the hearing, Gelfand brought up Duggar’s employee, Caleb Williams, who he claims could have committed the crime.
Gelfand said: “Caleb Williams worked at Wholesale Motorcars, which is the scene of the alleged crime. He regularly used the only computer, the HP computer, for purposes that had nothing to do with Wholesale Motorcars or Josh Duggar.
“He texted Mr. Duggar on May 7, approximately a week before the alleged crime, offering to go watch the lot the following week. He took a photo of Mr. Duggar in the office where the alleged crime occurred. Showing Mr. Duggar used a Macbook, not the HP computer.”
When the judge asked about Williams not being at the car lot at the time of the crimes, and their ability to still call him as a witness at trial, Gelfand responded: “District Court said if he says he wasn’t there and didn’t remote in, if he denies committing the crime, that’s as far as you’re going to get."
Referring to his evidence against Williams, Duggar's legal team replied: “He places himself regularly at the car lot using the only computer seized with child pornography on it. The court deprived Mr. Duggar of that ability.”
The prosecution responded: “The partition section of Mr. Duggar’s computer, which was the part of the computer containing all of the child sexual abuse material, had to have been installed by someone at Mr. Duggar’s computer on May 13, 2019. There is no evidence Mr. Williams was present on the car lot or even in the state of Arkansas on that date.
“There was abundant evidence Mr. Williams was not present in Arkansas on that date. He was outside Arkansas between May 11 and May 16, the government has receipts, video and live testimony from multiple witnesses that he was outside Arkansas.”
Handell continued with the evidence against Duggar: “Text messages place Mr. Duggar at the scene of the crime. On May 15 at 11:15 am, Mr. Duggar sent a text message that read: 'I'm at my car lot.' Twenty minutes later at 11:35 am, child sexual abuse material was downloaded on the partition section of Mr. Duggar's computer."
He gave other similar examples placing Josh at the scene of the crime.
Williams was arrested for criminal sex abuse after he was accused of sexually abusing a minor on or between May 2015 through May 2018.
He pled guilty to aggravated criminal sexual abuse after negotiating a plea agreement,
Williams was sentenced to 62 days in jail and 18 months probation on January 22, 2020.
DEFENSE'S ARGUMENT
Duggar's legal team claimed in appeal court papers filed in December 2022 that armed federal agents restrained him during the interrogation at his Arkansas car lot.
The court papers read: “Federal agents surveilled Duggar’s business, waiting for him to arrive. The business was accessible only by a divided highway with no sidewalk and was ‘in the middle of nowhere.’
"When Duggar arrived, agents—armed and wearing tactical gear—converged in six vehicles.
“Duggar immediately took out his phone and said he was calling his attorney. [An agent] took the phone from Duggar’s hand, preventing him from calling counsel.”
The filing claims a blindsided Duggar was “not allowed to leave” in his car, as it was being searched.
The court papers continued: “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.’
“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. He would have effectively had to walk on the shoulder of a rural highway to leave the police-dominated environment.”
Duggar’s legal team then claimed he was “restrained.”
The filing continued: “The Government also contends Duggar was not restrained. But restraint is about more than being handcuffed. Duggar was placed in a police vehicle with two armed agents. He was told his attorney could not join him after he attempted to call counsel, and he had no access to a vehicle.
“This Court should conclude a reasonable person in Duggar’s position would have felt ‘deprived of his freedom of action in any significant way.’”
JOSH'S LEGAL TROUBLES
Duggar was arrested and charged with possessing and receiving child pornography in April 2021.
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The jury submitted a guilty verdict and Josh was sentenced to 151 months in federal prison in May.
He was transferred to FCI Seagoville in June, where he continues to serve his sentence.
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