# United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 7, 2023 Decided July 23, 2024

No. 22-3015

U

NITED S TATES OF A MERICA , A PPELLEE

v.

J OSEPH S MITH ,

A PPELLANT

Appeal from the United States District Court for the District of Columbia (No. 1:19-cr-00324-1)

Jonathan Zucker , appointed by the court, argued the cause and filed the briefs for appellant.

David B. Goodhand , Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Chrisellen R. Kolb and John P. Mannarino , Assistant U.S. Attorneys.

Before: S RINIVASAN , Chief Judge , G ARCIA , Circuit Judge

, and R ANDOLPH , Senior Circuit Judge

. Opinion for the Court filed by Chief Judge S RINIVASAN

.2

S RINIVASAN , Chief Judge : Appellant Joseph Smith was convicted of child sexual abuse a nd other related offenses after sexually abusing his stepdaughter. In this appeal, Smith brings four challenges to his convictions . First, he co ntends that an underrepresentation of Black reside nts in his jury pool violated his Sixth Amendment right to a jury drawn from a fair crosssection of the community. Sec ond, he challenges the district court’s denial of his motion to suppress eviden ce discovered on two cell phones and a personal comp uter. Third, he asserts that the government’s case agent shoul d have been excluded from the courtroom. And fourth, he argues that the case agent improperly testified as an expert at trial. We are unpersuaded by any of those arguments and t hus affirm Smith’s convictions.

I.

A.

In May 2016, Joseph Smith began sexually abusing A.S., his stepdaughter, when she was twelve years old. For eleven months, Smith forced A.S. to receive oral sex from and perform oral sex on him. Smith also sent A.S. sexually explicit text messages and forced her to send nude photos of herself to him. In April 2017, A.S. and her moth er reported Smit h’s abuse to the police.

Police obtained a warrant to search Smith’s residence for evidence of A.S.’s allegations . The affidavit supporting the warrant relied on A.S.’s stat ements describing her text messages with Smith and the photos she had sent him. The affiant, a detective specializing in child sex abuse, additionally averred based on her experience th at child sexual abusers often use their cell phones to take and store pictures of victims and then save the pictures to their personal computers. The affiant explained that those images woul d be “excellent evidence of3
someone who is engaged in comm itting sexual offenses against children.” J.A. 65.

As requested in the affidavi t, the warrant authorized a search for, and seizure of:

Cellular phones, computers, digital storage devices, thumb drives, removable electronic devices such as external hard drives, and the extraction of all electronic data stored inside of them to take place at th e residence or a police or court facility, mail matter, any material identifying any resident of the house and to take photographs and sketches of the entire premises, and any items or materials relating to the offense of First Degree Child Sexual Abuse.

J.A. 62.

When executing the warrant, the officers seized three tablets, an Xbox, an air matt ress, a personal computer, and twelve cell phones. Police disc overed substantial amounts of incriminating evidence on the personal computer and two of the cell phones.

B.

A grand jury indicted Smith on ten counts related to child sexual abuse under federal and D.C. law. Four of Smith’s pretrial and trial motions are at is sue in this appeal. The district court denied all four motions.

First, Smith moved to dismis s the indictment based on his Sixth Amendment right to a ju ry drawn from a fair crosssection of the community. He pointed to statistical evidence that Black persons were unde rrepresented in Washington,4
D.C., jury pools relative to the percentage of Black adults in the D.C. population. Smith assert ed that the disproportionate impact of the COVID-19 pandemic on racial and ethnic minorities caused the disparity in the jury pool.

Second, Smith moved to suppress the evidence found on the computer and two cell phones. He argued that police had unconstitutionally seized thos e devices while executing an invalid warrant to search hi s home, and that any evidence discovered on the devices thus s hould have been excluded at trial.

Finally, Smith brought two ch allenges related to the government’s case agent, a special agent in the Federal Bureau of Investigation who testified ag ainst Smith. Smith first moved to exclude the agent from the courtroom to pr event her from hearing the testimony of other witn esses. Smith also separately objected to a portion of the agent’ s trial testimony in which she reviewed text message excha nges with A.S. found on Smith’s cell phone. The agent explained which messages Smith sent and which he received based on her interpretation of a report from a program called Cellebrite, which is used to extract information from digital devices. Smith moved to strike the agent’s testimony as impr oper expert testimony.

A jury convicted Smith of seven counts of child sexual abuse, as well as one count each of production of child pornography, possession of chil d pornography, and enticement of a minor. The district court sentenced Smith to two concurrent terms of li fe imprisonment.

II.

On appeal, Smith challenges the district court’s denial of the four motions described above . We reject ea ch of Smith’s challenges.5

A.

We first consider Smith’s Sixth Amendment challenge to the composition of the jury pool. The Sixth Amendment guarantees a criminal defendant the right to a trial “by an impartial jury,” U.S. Const. amend. VI, which the SupremeCourt has held must be drawn from a “representative crosssection of the community,” Taylor v. Louisiana , 419 U.S. 522, 528 (1975) (quoting Williams v. Florida , 399 U.S. 78, 100(1970)). Smith claims that his Sixth Amendment fair crosssection right was violated be cause Black residents were underrepresented in the jury pool from which his jury was drawn.

In order to establish a prima facie violation of his fair cross-section right, Smith must sa tisfy all three of the prongs set out by the S upreme Court in Duren v. Missouri , 439 U.S. 357, 364–66 (1979). He must show : (i) that the group allegedly excluded (here, Bl ack persons) qualifies as a “‘distinctive’ group in the community”; (ii) that the representation of the group in ju ry venires “is not fair and reasonable in relation to” the group’s representation in the community; and (iii) that the underrepresentation stems from “systematic exclusion of the group in the jury-selection process.” Id. at 364.

The district court held that Smith established the first Duren prong but not the second or th ird. We affirm based on the third prong: we conclude that Smith cannot show that the jury-selection process systematical ly excluded Black residents. We therefore have no need to a ddress the second prong or to resolve how to determine the baseline population or measure underrepresentation for pur poses of that prong.

To understand why Smith has failed to demonstrate systematic exclusion of Black residents in the jury-selection6
process, it is necessary to outli ne how that process works for the United States District Court for the District of Columbia. The District’s Jury Office initia lly constructs a master jury wheel from lists of people who: are registered to vote in D.C.; hold a D.C. driver’s license, D.C. learner’s permit, or other valid D.C. identification card; or pay D.C. income taxes. From the master jury wheel, the Office periodically draws sets of potential jurors for two-week window s of trial start dates. Eachof those potential jurors receives a summons and jurorqualification questionnaire in the mail. Some share of those potential jurors responds, a nd the Office does not follow up with (or take any action agains t) those who do not respond.

Based on the responses to the questionnaires, the Office filters out people who are disqua lified or excused from jury service. The remaining group of eligible jurors is called the qualified two-week jury pool. When there is a trial, the Office instructs a portion of the people in the qualified two-week jury pool to appear at the courthouse for jury selection. From that group, a venire of the size reque sted by the presiding judge is randomly drawn. Voir dire then occurs, yielding a jury of twelve jurors and two alternates.

Smith contends that, around the time of his trial, Black residents responded to the Ju ry Office’s summonses and questionnaires at lower rates th an other groups and thus were underrepresented in the qualified two-week jury pools. In his view, because the jury-selection process allows disparate response rates to affect the co mposition of th e qualified twoweek jury pools, the process systematically excludes Black jurors. Smith appears to al lege both that the COVID-19 pandemic caused the differential response rate and that the fact of the differential response rate alone suffices regardless of the

reason.7
Either way, Smith cannot demonstrate the existence of systematic exclusion within the meaning of Duren ’s third prong. As the Supreme Court explained in Duren , the cause of underrepresentation is “systematic” when it is “inherent in the particular jury-selecti on process utilized.” Id. at 366. Neither of Smith’s theories involves systematic exclusion of that kind.

Smith’s first theory involves the COVID-19 pandemic, which of course profoundly affe cted many aspects of day-today life. According to Smith, one of those effects bore on the jury-selection process, in that the pande mic depressed response rates among Black residents, gi ving rise to nonrepresentative jury pools.

Even assuming the pandemic brought about differential response rates, however, that is not “systematic exclusion” under Duren . The pandemic was an exogenous shock rather than something “inherent in the . . . jury-selection process.” Id. Indeed, Smith acknowledges that the jury-sel ection process “was carefully calibrated to produce a fair cross-section of the community” and that the COVID-era data “does not resemble” the process’s intended results. Defendant’s Motion to Dismiss the Indictment at 7, United States v. Smith , No. 19-cr-00324 (D.D.C. Oct. 18, 2021).

To the extent Smith’s challenge encompasses differential response rates more generally, he still has not shown systematic exclusion in the jury-selection process. Smith alleges that Black residents respond to jury summonses at lower rates than other groups. Even if that is so, the resulting underrepresentation is not “due to [Black residents’] systematic exclusion in the jury-selection process.” Duren , 439 U.S. at 366. It is instead due to the independent choices of potential jurors—here, choices about wh ether to respond to a jury8

summons. Those sorts of autonomous choices are not “inherent in the particular jury -selection process utilized.” Id.

In Duren , by contrast, the Supreme Court found systematic exclusion of women when the jury-selection process offered certain opportunities to claim exem ptions from service only to women and presumed that women (but not men) who failed to respond had claimed exemptions. The resulting underrepresentation was “quite obviously due to the system by which juries were selected.” Id. at 367. That is untrue when underrepresentation results from the independent choices of potential jurors rather than from, as in Duren , “the operation of [the jury-selection process’ s] exemption criteria.” Id.

Smith also asserts that the Jury Office systematically excludes Black jurors because it fails to follow up on nonresponses or enforce summonses against nonrespondents. But Smith does not explain why Black residents respond at lower rates, why subsequent action by the Office would ameliorate (rather than cement) the disparity, or how many additional steps the Office should be required to take to satisfy the Sixth Amendment. Smith, in other words, has provided insufficient evidence that the Office in fact could remedy the disparities in jury repr esentation by following up on nonresponses or that it would be reasonable to require the Office to do so. In those circ umstances, we have no basis to impose an obligation on the Office to take further measures that may or may not mitigate differe ntial response rates or to conclude that the Office’s fail ure to take those measures constitutes systematic exclusion.

For those reasons, we affirm th e district court’s conclusion that Smith has failed to s how a violation of his Sixth Amendment fair cros s-section right.9

B.

We next consider Smith’s challenge to the warrant authorizing the search of his apartment. The Fourth Amendment provides that a wa rrant must “particularly describ[e] . . . the persons or thi ngs to be seized.” U.S. Const. amend. IV. The partic ularity requirement “ensures that the search will be carefully tailored to its justifications, and will not take on the character of the wide-ranging exploratory searches the Framers in tended to prohibit.” Maryland v. Garrison , 480 U.S. 79, 84 (1987). To that end, a warrant with an “indiscriminate sweep” is “constitutionally intolerable.” Stanford v. Texas , 379 U.S. 476, 486 (1965).

The warrant in this case author ized police to search for and seize “[c]ellular phones, computer s, digital storage devices, thumb drives, removable electroni c devices such as external hard drives, and the extraction of all electronic data stored inside of them to take place at the residence or a police or court facility, mail matter, any materi al identifying any resident of the house and to take photographs and sketches of the entire premises, and any items or materi als relating to the offense of First Degree Child Sexual Abuse.” J.A. 62. Smith contends that the warrant was unconstitutionally overbroad in violation of the Fourth Amendment’s particularity requirement.

Smith relies largely on our decision in United States v. Griffith , 867 F.3d 1265 (D.C. Cir. 2017). In Griffith , we held that a warrant “to search for a nd seize all electronic devices” (including cellular phones and co mputers) at a residence was insufficiently particular. Id. at 1276–77. The circumstances in Griffith , though, differed meaningfu lly from those here.

In Griffith , the warrant affidavit gave no reason to suppose that the suspect owned a cell phone (or other electronic device) at all, and there was also a “limited likelihood that any cell10
phone discovered in the apartmen t would contain incriminating evidence of Griffith’s suspected crime.” Id. at 1272–75. In those circumstances, we held th at it was impermissible to issue a warrant granting officers unfettered access to every electronic device in the apartment.

Here, by contrast, police had am ple cause to believe that multiple devices containing in criminating evidence would be found in Smith’s apartment. Smith’s suspected conduct included exchanging sexually abusive text messages and photos with A.S., which undoubt edly involved multiple electronic devices: namely, the cell phones A.S. and Smith used to communicate with each other. Contra id. at 1272 (noting that there was “no in formation about anyone having received a cell phone call or text message from” the suspect). A.S. confirmed as much in her statements to investigators, when she identified multiple phones that she said had been used to carry out the alleged offenses . And the affidavit supporting the warrant incorporated the in formation provided by A.S. to establish probable cause that Smith’s cell phone and A.S.’s cell phone would contain evidence of A.S.’s allegations. Moreover, the affiant relied on her experience investigating child sexual abuse to provide a detailed account of why and how a suspected abuser would use his personal computer and cell phone to perpetrate his offense. See United States v. Cardoza , 713 F.3d 656, 661 (D.C. Cir. 2013) (finding probable cause based in part on an affi ant’s statements drawn from his training and experience).

Given that probable cause already existed for multiple electronic devices in Smith’s apartment, police had reason to believe that other devices in th e apartment might also contain evidence of the suspected offense. Smith could well have transferred evidence of his conduct onto multiple devices. He might have done so in the normal course of cycling through11
devices, or he might have want ed to make backup copies of photos or disperse evidence acro ss multiple devices. Viewed in light of Smith’s suspected conduct, the warrant’s “sweep” did not “far outstrip[] the polic e’s proffered justification for entering the home.” Griffith , 867 F.3d at 1276. Rather, the warrant reasonably authorized po lice to seize a broad set of electronic devices.

Smith, pointing to the fact that A.S. had identified specific phones in her statements to inve stigators, contends that the warrant should have limited th e authorized seizure to those particular phones or that police should have conducted a reasonable investigation into which devices likely contained incriminating evidence. We disagree. A.S. was thirteen years old when she gave her statements to investigator s, and she may have been unable to accuratel y remember and describe which particular devices would be rele vant. In addition, she would not have known whether Smith transferred stored photos and other incriminating evidence to other devices. We decline to hold that police officers armed with information that Smith stored evidence of his crim es on phones and personal computers were obligated to stri ctly conform the parameters of their investigation to the precise information recalled and related by A.S.

In all events, the good-faith exception precludes suppression of the evid ence recovered in the search. Under that exception, suppression of evidence is appropriate “only if the officers were dishonest or reckless in preparing their affidavit or could not have harbored an objectively reasonable belief in the existence of probable cause.” United States v. Leon , 468 U.S. 897, 926 (1984). To justif y suppression, the affidavit must be “so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.” Id. at 923.12
The affidavit here does not meet that high bar. The affidavit included A.S.’s detailed descriptions of Smith’s sexual abuse, how he used electr onic devices to carry out that abuse, and what evidence woul d likely be found on those devices. The affidavit also contained several paragraphs of information from a detective de scribing how sex offenders tend to use multiple electronic devices to carry out their crimes. There was thus ample cause for po lice to believe that multiple electronic devices found in Sm ith’s residence could contain evidence of his suspected abuse. The officers’ reliance on the warrant was reasonable.

Smith also argues the warrant was overbroad in that it allegedly did not limit the types of data that could be taken from the seized devices. Without d eciding the underlying merits of the claim, we hold that the good- faith exception also precludes that argument. Given the inform ation in the affidavit and the fact that incriminating data was likely to exist in many forms— including text messages, phot os, and internet activity—a reasonable officer could have concluded that probable cause existed for the scope of the search.

None of this is to say that the warrant in this case was necessarily a model of particularity. And when officers can draft affidavits with greater particularity, they presumably would do so to avoid a challenge like the one in this case. That challenge fails here because the warrant was constitutionally sufficient.

C.

Finally, we consider Smith’s challenges to the courtroom presence and trial testimony of th e government’s case agent.

We begin with Smith’s challe nge to the district court’s ruling permitting the case agent to remain in the courtroom13
during the trial. Because Smith did not preserve his argument that the district court failed to recognize its own inherent authority to exclude the agent, we review for plain error. A legal error is plain on ly if it is “clear or obvious, rather than subject to reasonable dispute” ; “affected the appellant’s substantial rights, which in the ordinary case means . . . that it ‘affected the outcome of the di strict court proceedings’”; and “‘seriously affects the fairness, integrity, or pu blic reputation of judicial proceedings.’” Puckett v. United States , 556 U.S. 129, 135 (2009) (alteration omitted) (quoting United States v. Olano , 507 U.S. 725, 734, 736 (1993)).

The district court did not clearly or obviously err in allowing the agent to remain in the courtroom. The district court relied on Federal Rule of Evidence 615, which generally requires courts to exclude witnesses from the courtroom at a party’s request. Fed. R. Evid. 615 (Dec. 1, 2011) (amended Dec. 1, 2023). (Although Rule 615 was recently amended, we interpret the version in effect during Smith’s trial.) But the Rule “does not authorize exclud ing” “an officer or employee of a party that is not a natural person, afte r being designated as the party’s representati ve by its attorney.” Id. 615(b) (now located at Rule 615(a)(2)). Accordingly, the government designated the agent as its repres entative at trial and the court allowed her to remain in the courtroom.

A government case agen t fits squarely w ithin the text of Rule 615(b): she is an “officer or employee” of the government, which is “not a natural person.” Id. ; see S. Rep. No. 93-1277, at 26 (1974) (“[I]nvestigative agents are within the group specified under the s econd exception made in the rule . . . .”). Our sister ci rcuits uniformly agree that the government’s case agent in a cri minal case falls within Rule 615(b)’s exception. See, e.g.
, United States v. Dennison , 73 F.4th 70, 73 (1st Cir. 2023); United States v. Rivera , 971 F.2d14
876, 889 (2d Cir. 1992); United States v. Gonzalez , 918 F.2d 1129, 1137–38 (3d Cir. 1990); United States v. Parodi , 703 F.2d 768, 773 (4th Cir. 1983); United States v. Robles-Pantoja

, 887 F.2d 1250, 1256–57 (5th Cir. 1989); United States v. Pulley , 922 F.2d 1283, 1285 (6th Cir. 1991); United States v. Edwards , 34 F.4th 570, 585 (7th Cir. 2022); United States v. Sykes , 977 F.2d 1242, 1245 (8th Cir. 1992); United States v. Valencia-Riascos , 696 F.3d 938, 941 (9th Cir. 2012); United States v. Avalos , 506 F.3d 972, 978 (10th Cir. 2007), vacated on other grounds , 555 U.S. 1132 (2009); United States v. Butera , 677 F.2d 1376, 1380–81 (11th Cir. 1982). And our court has already recognized that Rule 615’s exception for designated representatives “appears to cover” the government’s case agents. United States v. Cooper , 949 F.3d 744, 749 n.4 (D.C. Cir. 2020).

It is true that, while Rule 615(b) “does not authorize excluding” a party’s representati ve, it also does not expressly prohibit courts from excluding the representative. It appears to be an open question in this cour t whether district courts have discretion to exclude under a s ource of authority other than Rule 615. See, e.g.
, Bradshaw v. Perdue , 319 F. Supp. 3d 286, 288–89 (D.D.C. 2018) (collecting authorities). Because no binding precedent squarely resolves that question, the district court did not plainly err in allo wing the agent to remain in the
courtroom. See United States v. Vizcaino , 202 F.3d 345, 348 (D.C. Cir. 2000).

Smith also objects to a portion of the agent’s testimony at trial. In that tes timony, the agent interp reted a report from the program Cellebrite to explain an exchange between A.S. and Smith that police had discovered on Smith’s cell phone. After a previous expert witness test ified that A.S. sent all the messages in the convers ation, the agent sought to clarify which text messages were sent to her and which were sent by her.15
Smith contends that the agent wa s not qualified as an expert and improperly gave that test imony based on specialized knowledge.

Because Smith failed to preserve his argument that the government laid an inadequate foundation for th e case agent’s expertise, we need not address whether the district court erred in allowing the agent’s testimony. No such error would have “affected the outcome of the dist rict court proceed ings” in light of the overwhelming ev idence against Smith. See Puckett , 556 U.S. at 135 (quoting Olano , 507 U.S. at 734). If Smith had successfully blocked the agent from testifying based on her knowledge of Cellebrite, he w ould have prevented only an explanation of who sent and received a handful of text messages. In those messages, A.S. and Smith discussed A.S.’s feeling ill, whether she coul d leave school early, and her journey home. Regardless of that exchange, there was a vast amount of incriminating evidence of Smith’s conduct, including sexually explicit text messages and photos exchanged with A.S. What is more, the messages about A.S.’s illness had already been introduced into evidence by the previous expert witness’s testimony; the agent simply added an explanation of which messages we re sent by A.S. There thus was no plain error in allowing th e government’s case agent to testify based on her knowledge of Cellebrite.

* * * * *

For the foregoing reasons, we affirm Smith’s convictions.

So ordered.