ROSEMARY M. COLLYER, District Judge.
On the eve of trial, Defendant Noe Machado-Erazo has moved to exclude the testimony of a government expert witness, Special Agent David Magnuson of the Federal Bureau of Investigation, who would testify about cellular telephone site analysis. Mr. Machado-Erazo argues that S.A. Magnuson's testimony is not based on a sufficiently reliable methodology to be admissible under the Federal Rules of Evidence and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592 (1993), and that it would therefore be unduly prejudicial. The government responds that S.A. Magnuson is a highly trained agent whose testimony is firmly based in scientific principles. Mr. Machado-Erazo's motion was denied in open court at the end of jury selection on June 14, 2013. The Court now writes to expand further upon its reasoning.
Noe Machado-Erazo is charged with offenses related to his alleged involvement in MS-13, a gang formed years ago in Los Angeles, with roots in El Salvador. Specifically, he is charged by Superseding Indictment with one count of conspiracy in violation of the Racketeer Influenced Corrupt Organizations Act (RICO), 18 U.S.C. § 1962(d); one count of Murder in Aid of Racketeering ("VICAR"), 18 U.S.C. § 1959(a)(1); and one count of Possession of a Firearm During and in Relation to a Crime of Violence, 18 U.S.C. § 924(c)(1)(A). The Superseding Indictment also charges Mr. Machado-Erazo with the murder underlying the VICAR count as a special sentencing factor. Jury selection was conducted on June 14, 2013 and trial will begin on June 18, 2013.
The government plans to offer the testimony of S.A. David Magnuson of the FBI Cellular Analysis Survey Team to show "that the cell phones used by defendants Machado Erazo, Jose Martinez Amaya, and a cooperating witness were in the remote area where the body of Felipe Enriquez was found on or about March 28, 2010." Gov't Opp. [Dkt. 368] at 2. S.A. Magnuson's report is 38 pages of slides, duplicated as Exhibit A to Mr. Machado-Erazo's Motion. See Magnuson Report, Def. Mot. [Dkt. 367], Ex. A [Dkt. 367-2]. The government also provided the report in its Trial Exhibit Binder, premarked as Government Exhibit 306. The report "depicts the geographic location of the cell towers/sectors utilized by the phones analyzed as they moved through the Cricket and T-Mobile cellular networks placing and receiving phone calls on the dates and times indicated." Magnuson Report at 2. The report is "based on cell records obtained by subpoena." Gov't Opp. at 2. The government emphasizes that S.A. Magnuson "will not claim to have determined the exact location of the phone user, but rather the general location where a cell phone would have to be located to use a particular cell tower and sector." Id. at 2 n.1.
The government intends to offer S.A. Magnuson as an expert witness under Federal Rule of Evidence 702. Mr. Machado-Erazo argues that the proposed testimony is insufficiently reliable to be admissible as expert testimony. He also argues that the Court should exclude the testimony as irrelevant or, in the alternative, as unduly prejudicial under Rule 403.
II. LEGAL STANDARDS
Federal Rule of Evidence 701 governs opinion testimony by lay witnesses, who may testify only as to opinions that are "(a) rationally based on the witness's perception; (b) helpful to clearly understanding the witness's testimony or to determining a fact in issue; and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702." In contrast, Rule 702 provides:
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise 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 on 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.
A federal court serves as the gatekeeper for expert testimony. Federal Rule of Evidence 702 imposes a "special obligation upon a trial judge" to ensure that expert testimony is not only relevant, but reliable. Kuhmo Tire Co. Ltd. v. Carmichael, 526 U.S. 137, 147 (1999). "Under Daubert [ v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592 (1993)], the district court is required to address two questions, first whether the expert's testimony is based on scientific knowledge, ' and second, whether the testimony will assist the trier of fact to understand or determine a fact in issue.'" Meister v. Med. Eng'g Corp., 267 F.3d 1123, 1126 (D.C. Cir. 2001) (quoting Daubert, 509 U.S. at 592). The first inquiry "demands a grounding in the methods and procedures of science, rather than subjective belief or unsupported speculation." Id. at 1127; see also Daubert, 509 U.S. at 592-93 (requiring a "preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in ...