United States of America v. Joseph Smith

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.
J OSEPH 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 .

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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 cross-
section 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

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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 cross-
section of the community. He pointed to statistical evidence
that Black persons were underrepresented in Washington,

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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.

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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 cross-
section 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 cross-
section 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

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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 juror-
qualification 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 two-
week 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.

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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-to-
day 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

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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.

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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

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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

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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.

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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

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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

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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.

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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.

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