FAYETTEVILLE, Ark. (KNWA/KFTA) — On the same day that the prosecution in Josh Duggar’s child pornography trial filed a document supporting their evidence that several enhancements to his charges would be relevant at sentencing, the defense filed an official response to the government’s sentencing recommendation.
Both documents were filed late in the day on May 18 in the Western District of Arkansas federal court in Fayetteville. The defense’s filing ran for nearly 10 and a half pages and outlined the team’s rationale for seeking a five-year sentence for Duggar, the minimum allowable by statute in this case.
The filing, signed by defense attorney Justin Gelfand, began by noting what it characterized as a “total lack of support for the Government’s request that this court should sentence Duggar to the maximum sentence permitted by law.” It went on to note that “the Government has not pointed to a single case in which a similarly-situated defendant has received a 20-year sentence for receipt of child pornography,” adding that such a sentence would be “excessive, entirely unwarranted, and unprecedented given the alleged crime.”
The document continued by noting that the government’s filings have described in graphic detail some of the illegal Child Sexual Assault Material (CSAM) downloaded on Duggar’s desktop computer.
To be clear, nobody denies the extent to which real children are victims of child pornography crimes — but the Government’s focus in its sentencing memorandum is clearly intended to provoke an emotional response in the hopes that this Court will hand down an unnecessarily harsh sentence in this case. This Court
should reject the Government’s attempt and instead focus, as the law requires, on what the evidence in this case actually revealed even in the light most favorable to the Government for purposes of sentencing.
Josh Duggar defense response to government’s sentencing memorandum, submitted on May 18
The defense maintained its stance that much of the illegal material in question “was either never on the computer in the first place or was never viewed by any user of the computer.” The document also reiterates that crimes occurred over “the course of a few days,” that images were deleted after that and that six months transpired between the crime and the execution of a search warrant at Duggar’s car lot. The first section of the document concludes with the defense repeating that a five-year sentence would be “sufficient, but not greater than necessary.”
Next, the defense addresses the court’s need to avoid sentencing disparities, citing a few other cases and noting the differences between those and Duggar’s case. They call one individual’s conduct “beyond comparison to anything the Government alleges Duggar did.” The filing also details that particular defendant’s “remarkable history,” including details of his multiple charges and prior crimes.
In another case cited by the defense, an individual received over 22,000 images and was handed a 75-month sentence.
“The bottom line is that the Government has not pointed to a single similarly-situated defendant who received the sentence it seeks in this case,” the document stated. “And the abundance of legal authority weighs heavily against the Government’s position.”
It also noted the prevalence of five-year sentences in cases with “far more upsetting allegations.”
Next, the defense addressed the government’s arguments in favor of sentencing enhancements, calling those arguments “flawed.” The filing then repeated the defense belief that many of the graphic files in question were never on the computer, or were deleted before they were viewed by a user of that computer.
The defense also objected to an enhancement for “knowing distribution” of illegal material, stating that the government’s forensic expert “did not offer testimony or present evidence that Duggar ever distributed any files from his personal laptop utilizing peer-to-peer software.”
The final section outlined the defense’s objection to the government’s categorization of Duggar’s “pattern of activity,” calling cases that the prosecution cited “largely irrelevant to its analysis.”
“There was no juvenile adjudication,” the defense states, referring to allegations that Duggar molested minor girls when he was a teenager. “Much less a conviction.” The defense also alleged that the entire basis for this enhancement relies on “hearsay testimony.”
Close family friend Bobye Holt was called as a witness and testified under oath during the trial, explaining in great detail how she learned about the acts Duggar committed. The motion concluded with the defense again requesting the minimum five-year sentence followed by a term of supervised release.
Duggar was found guilty on two child pornography charges in December 2021. He remains in custody at the Washington County jail while awaiting his May 25 sentencing.