United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 7, 2023 Decided July 23, 2024 

No. 22-3015 

UNITED STATES OF AMERICA, 

APPELLEE

v. 

JOSEPH SMITH, 

APPELLANT

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: SRINIVASAN, Chief Judge, GARCIA, Circuit Judge, 

and RANDOLPH, Senior Circuit Judge. 

Opinion for the Court filed by Chief Judge SRINIVASAN. 
2 

SRINIVASAN, Chief Judge: Appellant Joseph Smith was 

convicted of child sexual abuse and other related offenses after 

sexually abusing his stepdaughter. In this appeal, Smith brings 

four challenges to his convictions. First, he contends that an 

underrepresentation of Black residents in his jury pool violated 

his Sixth Amendment right to a jury drawn from a fair crosssection of the community. Second, he challenges the district 

court’s denial of his motion to suppress evidence discovered on 

two cell phones and a personal computer. Third, he asserts that 

the government’s case agent should 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 thus 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 mother reported Smith’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 statements 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 that 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 would be “excellent evidence of 
3 

someone who is engaged in committing sexual offenses against 

children.” J.A. 65. 

As requested in the affidavit, 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 the 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 mattress, a personal computer, and 

twelve cell phones. Police discovered 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 issue in this appeal. The district 

court denied all four motions. 

First, Smith moved to dismiss the indictment based on his 

Sixth Amendment right to a jury drawn from a fair crosssection of the community. He pointed to statistical evidence 

that Black persons were underrepresented in Washington, 
4 

D.C., jury pools relative to the percentage of Black adults in 

the D.C. population. Smith asserted 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 those devices while executing an 

invalid warrant to search his home, and that any evidence 

discovered on the devices thus should have been excluded at 

trial. 

Finally, Smith brought two challenges related to the 

government’s case agent, a special agent in the Federal Bureau 

of Investigation who testified against Smith. Smith first moved 

to exclude the agent from the courtroom to prevent her from 

hearing the testimony of other witnesses. Smith also separately 

objected to a portion of the agent’s trial testimony in which she 

reviewed text message exchanges 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 improper 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 child pornography, and enticement 

of a minor. The district court sentenced Smith to two 

concurrent terms of life imprisonment. 

II. 

 On appeal, Smith challenges the district court’s denial of 

the four motions described above. We reject each 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 Supreme 

Court 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 because 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 satisfy all three of the prongs 

set out by the Supreme Court in Duren v. Missouri, 439 U.S. 

357, 364–66 (1979). He must show: (i) that the group 

allegedly excluded (here, Black persons) qualifies as a 

“‘distinctive’ group in the community”; (ii) that the 

representation of the group in jury 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 third. We affirm based on 

the third prong: we conclude that Smith cannot show that the 

jury-selection process systematically excluded Black residents. 

We therefore have no need to address the second prong or to 

resolve how to determine the baseline population or measure 

underrepresentation for purposes of that prong. 

 To understand why Smith has failed to demonstrate 

systematic exclusion of Black residents in the jury-selection 
6 

process, it is necessary to outline how that process works for 

the United States District Court for the District of Columbia. 

The District’s Jury Office initially 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 windows of trial start dates. Each 

of those potential jurors receives a summons and jurorqualification questionnaire in the mail. Some share of those 

potential jurors responds, and the Office does not follow up 

with (or take any action against) those who do not respond. 

Based on the responses to the questionnaires, the Office 

filters out people who are disqualified 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 requested 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 Jury Office’s summonses and 

questionnaires at lower rates than 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 composition of the qualified twoweek jury pools, the process systematically excludes Black 

jurors. Smith appears to allege 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-selection 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 affected many aspects of day-today life. According to Smith, one of those effects bore on the 

jury-selection process, in that the pandemic depressed response 

rates among Black residents, giving 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-selection 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 whether to respond to a jury 
8 

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 exemptions 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 representation by following up on 

nonresponses or that it would be reasonable to require the 

Office to do so. In those circumstances, we have no basis to 

impose an obligation on the Office to take further measures that 

may or may not mitigate differential response rates or to 

conclude that the Office’s failure to take those measures 

constitutes systematic exclusion. 

For those reasons, we affirm the district court’s conclusion 

that Smith has failed to show a violation of his Sixth 

Amendment fair cross-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 warrant must “particularly 

describ[e] . . . the persons or things to be seized.” U.S. Const. 

amend. IV. The particularity 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 intended 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 authorized police to search for and 

seize “[c]ellular 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 the 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. 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 and seize all electronic devices” 

(including cellular phones and computers) at a residence was 

insufficiently particular. Id. at 1276–77. The circumstances in 

Griffith, though, differed meaningfully 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 cell 
10 

phone discovered in the apartment would contain incriminating 

evidence of Griffith’s suspected crime.” Id. at 1272–75. In 

those circumstances, we held that it was impermissible to issue 

a warrant granting officers unfettered access to every electronic 

device in the apartment. 

Here, by contrast, police had ample cause to believe that 

multiple devices containing incriminating evidence would be 

found in Smith’s apartment. Smith’s suspected conduct 

included exchanging sexually abusive text messages and 

photos with A.S., which undoubtedly 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 information 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 information 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 affiant’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 the 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 through 
11 

devices, or he might have wanted to make backup copies of 

photos or disperse evidence across multiple devices. Viewed 

in light of Smith’s suspected conduct, the warrant’s “sweep” 

did not “far outstrip[] the police’s proffered justification for 

entering the home.” Griffith, 867 F.3d at 1276. Rather, the 

warrant reasonably authorized police to seize a broad set of 

electronic devices. 

Smith, pointing to the fact that A.S. had identified specific 

phones in her statements to investigators, contends that the 

warrant should have limited the 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 investigators, and she may 

have been unable to accurately remember and describe which 

particular devices would be relevant. 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 crimes on phones and personal 

computers were obligated to strictly 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 evidence 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 justify 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 electronic devices to carry out that 

abuse, and what evidence would likely be found on those 

devices. The affidavit also contained several paragraphs of 

information from a detective describing how sex offenders tend 

to use multiple electronic devices to carry out their crimes. 

There was thus ample cause for police to believe that multiple 

electronic devices found in Smith’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 deciding the underlying merits of 

the claim, we hold that the good-faith exception also precludes 

that argument. Given the information in the affidavit and the 

fact that incriminating data was likely to exist in many forms—

including text messages, photos, 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 the government’s case agent. 

 We begin with Smith’s challenge to the district court’s 

ruling permitting the case agent to remain in the courtroom 
13 

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 only 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 district court proceedings’”; and 

“‘seriously affects the fairness, integrity, or public 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 excluding” “an officer or employee 

of a party that is not a natural person, after being designated as 

the party’s representative by its attorney.” Id. 615(b) (now 

located at Rule 615(a)(2)). Accordingly, the government 

designated the agent as its representative at trial and the court 

allowed her to remain in the courtroom. 

A government case agent fits squarely within 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 second exception made in the 

rule . . . .”). Our sister circuits uniformly agree that the 

government’s case agent in a criminal 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.2d 
14 

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 representative, it also does not expressly 

prohibit courts from excluding the representative. It appears to 

be an open question in this court whether district courts have 

discretion to exclude under a source 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 allowing 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 testimony, the agent interpreted 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 testified that A.S. sent all the 

messages in the conversation, the agent sought to clarify which 

text messages were sent to her and which were sent by her. 
15 

Smith contends that the agent was not qualified as an expert 

and improperly gave that testimony based on specialized 

knowledge.

Because Smith failed to preserve his argument that the 

government laid an inadequate foundation for the 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 district court proceedings” in light 

of the overwhelming evidence 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 would 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 could 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 were sent by A.S. There thus 

was no plain error in allowing the government’s case agent to 

testify based on her knowledge of Cellebrite. 

* * * * * 

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

So ordered.