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United States of America v. Antoine Jones

January 23, 2013

UNITED STATES OF AMERICA,
v.
ANTOINE JONES, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Ellen Segal Huvelle United States District Judge

MEMORANDUM OPINION AND ORDER

Defendant Antoine Jones is charged with Conspiracy to Distribute and Possess with Intent to Distribute Five Kilograms or more of Cocaine and Fifty Grams or more of Cocaine Base, in violation of 21 U.S.C. § 846. (Superseding Indictment, Mar. 21, 2007 [ECF No. 344].) During the government's investigation of Mr. Jones, the government applied for and obtained several orders authorizing the disclosure of prospective cell-site information for defendant's cellular telephones covering a period of approximately four months. Defendant moved to suppress the government's use of that cell-site data at trial, but on December 14, 2012, the Court denied defendant's motion. (See Memorandum Opinion and Order [Dkt. No. 658].) Defendant now seeks to exclude the testimony of the government's proffered expert in the field of "cell site analysis," FBI Special Agent Scott Eicher. (Defendant's Motion in Limine to Exclude the Expert Testimony and Cellular Analysis Report of FBI Special Agent Scott Eicher, Jan. 3, 2013 [Dkt. No. 662] ("Mot.").) Having reviewed the pleadings, Agent Eicher's reports, and testimony he provided in another case in this Court,*fn1 and for the reasons set forth herein, the Court will deny defendant's motion.

FACTUAL BACKGROUND

The facts underlying the process by which the government obtained defendant's cell-site information have been set forth in this Court's December 14, 2012 Memorandum Opinion. The government also obtained similar cell-site data for phones belonging to defendant's alleged co-conspirators, Carlos Reyna and Roel Bermea.

The government has proffered FBI Special Agent Scott Eicher as its cell site analysis expert. Agent Eicher has submitted four reports disclosing his expected testimony at trial. Each of his reports consists of a series of satellite images onto which he has plotted the cell towers that the witnesses' phones connected to at the beginning and end of the traced phone calls. On each such map, Agent Eicher has indicated all of the cell towers in a given area with red dots. Then, for each phone call, he has indicated the cell tower to which the phone connected and the specific 120§ sector of the tower that was used for the call. These 120§ sectors are indicated by pie-shaped wedges extending out from the cell tower. At a status conference on January 17, 2013, the government confirmed the Court's understanding that the length of the pie-shaped wedges is not meant to indicate the distance the signal extends from the tower or to suggest that the phone must have been within that wedge. Instead, the signal could extend well beyond the end of the pie-shaped wedge. Each map is accompanied by a brief description of what can be gleaned from the phone calls shown on that map.

The government has explained that Agent Eicher based his maps on the combination of two sources: (1) the call records of the cell phone companies that were produced pursuant to court orders, which identify the particular tower and sector the phones connected to at the beginning and end of each call, and (2) cell tower lists provided to law enforcement by the cell phone companies, which specify the location of their cell towers, including the GPS coordinates for each tower and the direction that the sectors point in for those towers. (Opp'n at 2-3 & n.3.)

Defendant argues that Agent Eicher's methodology for determining the direction and size of the pie-shaped wedge is unreliable. He further argues that the use of those pie-shaped wedges to depict the cell tower sector used for each call is misleading and thus any probative value of his testimony is outweighed by the danger of unfair prejudice.*fn2

ANALYSIS

I. LEGAL FRAMEWORK

The admissibility of expert testimony in federal courts is governed by Federal Rule of Evidence 702, which provides that a witness may offer expert opinion testimony if:

(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based upon sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case.

As explained by the Supreme Court, under Rule 702, "the trial judge must determine at the outset . . . whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue." Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 592 (1993). The first prong of the analysis "establishes a standard of evidentiary reliability," id. at 590, while the second prong "goes primarily to relevance," id. at 591.

II. AGENT EICHER'S QUALIFICATIONS

Defendant does not attempt to challenge Agent Eicher's qualifications, and with good reason, as the Court finds that he is highly qualified to provide testimony in the field of cellular telephone technology. The government's expert disclosure (Mot. Ex. A, Expert Notice [Dkt. No. 662-2] at 6) and opposition to defense's motion (Government's Opposition to Defendant's Motion in Limine to Exclude Expert Testimony and Cellular Report of FBI Special Agent Scott Eicher, Jan. 8, 2013 [Dkt. No. 665] ("Opp'n")) lay out Agent Eicher's extensive training in the field. He is also a member of the FBI's Cellular Analysis and Survey Team, through which he has received specialized training to conduct historical cell site analysis to aid in law enforcement missions and present findings in court. (Expert Notice at 6.) He has worked on over 100 cases involving hundreds of hours of practical experience analyzing historical call detail records, and has used that information to determine the general area where a cell phone was located at a particular point in time. (Id. at 7.) He has trained local, state, and federal agencies in cellular tracking, including the ...


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