FAYETTEVILLE, Ark. (KNWA/KFTA) — In the afternoon session of the first day of Josh Duggar’s child pornography trial, the prosecution called their second witness.
Special Agent Gerald Faulkner is a member of Homeland Security Investigations (HSI) as well as the Internet Crimes Against Children (ICAC) task force.
But before the afternoon testimony began, Judge Timothy L. Roberts made his second apology of the day to the jury, as they were told to return at 1:20 p.m. and were not called back to the courtroom until nearly 1:50 p.m.
“I do mean what I say,” he said to them, drawing chuckles for the second time that day and bringing a little much-needed levity to this otherwise incredibly serious case.
He went on to explain that issues arose regarding some exhibits to be presented in the afternoon, and that he felt the little bit of time spent then to handle matters would benefit all involved in the long run.
After that, Assistant United States Attorney Dustin Roberts called Special Agent Faulkner to the witness stand.
Special Agent Faulkner detailed his career with Homeland Security Investigations (HSI), which began in 2009. He explained that while their branch commonly handles immigration issues, they are also “the largest investigation arm of Homeland Security.”
He also serves on a special response team that deals with terrorist threats, active shooter events, and other high-priority cases for HSI. He has also been a member of the Internet Crimes Against Children (ICAC) task force since 2010.
When asked how many cases he has worked for them, Faulkner estimated “approximately 1,000 cases,” with several hundred of those related to online child pornography.
The prosecution went over some of the ground covered in Detective Amber Kalmer’s morning testimony, regarding the details of when the peer-to-peer sharing of illegal material was discovered.
Special Agent Faulkner detailed the process that occurs from that point, which includes flagging the IP address and confirming that the transfer in question contained material that violated federal or state statutes.
Then, he explained to the jury, all of that information feeds into drawing up a probable cause affidavit.
Following that, he stated the three specific details he looks for when investigating:
- Any and all electronic devices capable of file sharing.
- Any devices with child pornography present on them.
- Determining whether someone was physically using a computer on the dates that crimes occurred.
Detective Kalmer, through the use of Bit Torrent software specifically for police use, determined that the peer-to-peer transfers in question occurred from May 14-15, 2019. The program is one that runs 24 hours a day, and she did not immediately discover that this has happened.
She contacted Special Agent Faulkner in June, and he officially accepted the case in July. Later that month, he stated that he had identified Ozarks Go as the internet service provider (ISP) of the flagged IP address.
He then served a summons for subscriber information such as the owner, dates of service, type of service, and physical address of the IP address in question. He noted that the response time for such a summons can vary from 3-4 days to 3-4 months.
When he hadn’t received a response by October, he inquired and discovered that Ozarks Go had attempted to contact him using an incorrect email address.
On October 31, 2019, Special Agent Faulkner and a team of agents planned to serve a search warrant at the physical location of the IP address. He explained in detail that the property in question had recently been split into two parcels, and that the physical address was incorrectly sending them to the wrong place.
The team of agents quickly discovered that the error was due to “outdated, old mapping records,” and this was confirmed when they arrived at a house with no internet service that Duggar had never lived at. Thus, the warrant was not served.
The HSI sent an undercover agent to Duggar’s place of business, Wholesale Motorcars, the following week. The HSI then requested and received a search warrant, which was served at the car lot on November 8, 2019.
A copy of the search and seizure warrant served was one of half a dozen documents the prosecution submitted as exhibits of evidence. Others included more documents and aerial shots of the vicinity of the car lot.
Special Agent Faulkner then walked the jury through the steps of serving the warrant. A team of agents and computer forensics analysts surveilled the car lot and saw no “threats or firearms,” which led them to conduct a “soft approach.”
He explained that their protocol calls for them to approach any individuals on the premises, but they “do not tell them the type of case,” but instead the type of evidence the agents are searching for.
He noted doing so could result in bias in subsequent witness statements if they were told the nature of the case. He added that all of his team were marked as either HSI or police, with no visible markings referencing the ICAC.
The warrant was executed at 3:15 p.m., and Special Agent Faulkner estimates that they were done by approximately 5:45 p.m.
At this point, the government introduced their exhibits 7-19, which were photographs of the exterior, the interior, and items found during the search. This included Duggar’s personal Macbook Pro laptop computer, found in an RV that he drove to the site.
Special Agent Faulkner explained that at this juncture in serving the warrant, he informed Duggar that they were looking for “items of evidentiary value,” including “digital contraband.”
Prosecution’s exhibit #20 was Duggar’s personal iPhone, which was taken without incident after agents approached him.
At this time during the search, Duggar was informed that he was not being detained and he was free to leave. Duggar’s demeanor was described as “calm, with no physical reaction.”
About 10-15 minutes later, Special Agent Faulkner says they asked Duggar for permission to talk to him about further details. He agreed to make a statement, which happened during an interview in the truck of Special Agent Howard Aycock.
They asked for Duggar’s verbal consent to record the interview, which he agreed to. Allegedly just before the recording began, Duggar asked the agents “What is this about? Has somebody been downloading child porn?”
Duggar’s signed statement of rights consenting to the recorded interview was also admitted as evidence, as was a USB flash drive containing portions of that interview.
The jury was informed that they would hear portions of the interview, broken up into three sections, and that they would receive a transcript of those parts of the interview.
“It is what you hear that is evidence,” the judge told them. “Not what you read.”
Duggar’s Interview – Part 1
The interview began with Duggar providing the agents with some information about himself, including that he was the owner of the car lot. He confirmed that Ozarks Go was his internet provider there, and that he had altered his internet setup the week prior.
He also provided information such as his cell number, personal email address, and an explanation that family members and employees commonly had access to his electronic devices.
He detailed that his iPhone 11 was relatively new, just purchased two months after it was released. He said his Macbook Pro laptop was about 5 years old, and the HP desktop computer in the office was 2.5-3 years old.
When the subject of USB flash drives was broached by the agents, Duggar told them that “there’s probably more than one thumbdrive in there.” They asked if the drives were his, and he stated that he didn’t know, because finding them in vehicles was a common occurrence.
“I don’t know,” Duggar said. “If they’re here, they’re here. I don’t know.”
He added that he had wiped some of the devices in the past and used them for pictures of cars.
Duggar’s Interview – Part 2
In section 2, the jury heard the special agents steer the conversation toward file-sharing and peer-to-peer applications. They asked Duggar if he was familiar with Napster as an example.
Duggar stated that he had heard of it, but that it was “a little before my time.”
He did confirm that all of his electronic devices had peer-to-peer file sharing software installed on them. Duggar added that he also uses a Tor browser that a friend helped him install for file sharing.
Special Agent Faulkner stated that Tor had been no part of their investigation at that time, and that it is primarily used to access the dark web. Special Agent Faulkner added that using Tor makes it difficult or impossible for a device’s IP address to be tracked.
The agents sought to clarify whether Duggar was referring to Tor, or simply Torrent, a file sharing client.
He seemed to not know the difference. When asked what purpose the Tor browser served for him, he was unsure. “I don’t recall,” said Duggar on the recording. “I can’t speak to that.”
At this juncture, Duggar began to ask more questions of his own. “Is that what you’re saying is going on?” he queried. “Is something going on on my devices?”
He continued by asking if his IP address had been marked, which the agents confirmed.
Special Agent Faulkner explained that a majority of ICAC cases involving the Tor browser involve child pornography. He added that the dark web is a known source of illegal material, and that “you can actually buy a child” for trafficking purposes.
The prosecution then asked the agent if using a dark web browser would be typical for a used car lot.
“Common sense of it?” asked Special Agent Faulkner. “No, sir. I would not think the dark web would be the best place to do that.”
Duggar’s Interview – Part 3
Attorneys for both sides conducted a brief sidebar before proceeding to the third and final part of the recording.
When the recording continued to play for the jurors, Duggar continued with his own questions, asking if the case directly connected to a certain IP address. He followed that up by asking if the device in question was “transmitting or receiving?” illegal images.
“It’s best you just listen,” an agent told Duggar.
“We don’t want to speculate,” the agents added. “That’s why we came here.” They explained that they would be investigating the “digital fingerprint of everything that ever happened” on seized electronics devices.
“I’m not denying guilt,” Duggar replied. “I don’t want to say the wrong thing.”
The government added payroll records they had subpoenaed as an additional exhibit of evidence. Those records covered multiple months at the car lot, and prosecutors noted that no pay records were produced for the dates of May 14-16, 2019, the time frame in question.
At 3:30 p.m., the court called for a brief recess, with the jury set to return at 3:50 p.m. Before that, attorneys remained behind to hammer out details regarding a broader transcript than the one the jury was given. The judge was not inclined to admit extra sections that the jury had not heard on the recording, calling one portion of it “four and a half pages of an island unto its own.”
This discussion carried on a bit longer than expected, and Judge Brooks made light of himself for the third time that day.
“I have done little to improve my credibility with the jury,” he said to laughter as the jury filed back in at 4:08 p.m.
The defense began their cross-examination of Special Agent Faulkner then, continuing until “a natural stopping point” just before 5 p.m.
The judge reminded the jury of their instructions, and promised them a breakfast of some sort as reparations for his frequent delays thus far.
He implored both sides to bring any needed business before the court quickly on Thursday morning, with a stated goal of calling the jury in at 8:30 a.m.
The defense’s cross-exam of Special Agent Faulkner will continue then.