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United States v. Medley

United States District Court, D. Maryland

May 8, 2018



          Paul W. Grimm United States District Judge

         Jovon Lovelle Medley has been charged with one count of carjacking resulting in serious bodily injury, in violation of 18 U.S.C. § 2119(2); one count of using, carrying, brandishing, and discharging a firearm, during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(a)(iii); and one count of felon in possession of a firearm and ammunition, in violation of 18 U.S.C. § 922(g)(1). He has filed a series of motions in limine challenging evidence that the Government intends to introduce at his trial. One particular challenge focuses on the scope of the testimony of FBI Special Agent Richard Fennern regarding his analysis of historical cell site information obtained from the service provider for Medley's cell phone. Def.'s Mot., ECF No. 54. The Government intends to offer SA Fennern's testimony as an expert witness to place Medley in the general vicinity of the scene of the carjacking and shooting that are the centerpiece of the charges against him. Because the carjacker wore a mask that concealed his face, the victim was unable to identify his assailant. Accordingly, the Government understandably views SA Fennern's testimony as critical to proving that Medley was the carjacker.

         Medley does not seek total exclusion of SA Fennern's testimony, nor does he challenge his impressive credentials and qualifications[1] to testify as an expert regarding analysis of historical cell site location evidence. Rather, he argues that SA Fennern's testimony “should be limited, as the data compiled in relation to the cellular telephone at issue cannot support the conclusion the government proposes during [sic] its disclosures produced to [the] Defense.” Def.'s Mot. 3. In particular, Medley challenges various charts prepared by SA Fennern showing the geographic layout of the various cell towers to which Medley's phone supposedly connected at the time and date of the carjacking. Medley contends that “[s]uch illustrations are very open to impermissible inferences that do not comport with the data, such as the cellular telephone at issue being located within the shaded area when the purported purpose of the shaded area serves an entirely different aim” Id. at 3. The Government filed an opposition to the motion, ECF No. 77, and a hearing was held on May 2, 2018, during which SA Fennern testified. For reasons that are explained below, Medley's motion is granted in part and denied in part. SA Fennern will be permitted to testify as an expert, subject to the requirements set out in this Memorandum Opinion that he explain the limitations on the ability of his methodology to determine the location of the cell phone attributed to the defendant with respect to the site of the charged carjacking and shooting. Before detailing the ruling, it would be helpful to set the stage regarding the admissibility of historical cell site location evidence as it is used in criminal cases.

         Admissibility of Historical Cell Site Location Information in Criminal Cases

         Cell phone use is ubiquitous. The rudiments of how cell phones operate are common knowledge-they “communicate” via radio waves with individual cell towers arrayed in a geographic network called “cells.” Cell towers are more densely found in urban areas (where each cell may cover an area of only a half mile to a mile) than in rural areas (where a cell may cover an area of thirty miles or more). Aaron Blank, The Limitations and Admissibility of Using Historical Cellular Site Data to Track The Location of A Cellular Phone, 18 Rich. J.L. & Tech. 3, 5 (2011).

         It also is widely known that companies offering cellular phone services keep records regarding the cell towers a user's cell phone connects to, and the duration of the call for business purposes-to accurately impose roaming charges and to monitor the volume of cell phone traffic by location. Id. State and federal law enforcement officers long have used the historical records of cell phone use maintained by cellular phone companies to determine the approximate location of a cell phone at a particular time and place, and both state and federal courts frequently have admitted this evidence. See, e.g., United States v. Jones, 918 F.Supp.2d 1, 4-6 (D.D.C. 2013) (giving examples of courts that have found historical cell site location evidence reliable and admissible); United States v. Hill, 818 F.3d 289, 297 (7th Cir. 2016) (“District courts that have been called upon to decide whether to admit historical cell-site analysis have almost universally done so.”).

         Curiously, despite the frequent admission of historical cell site location evidence by trial courts in criminal cases, “[n]o federal court of appeals has yet said authoritatively that historical cell-site analysis is admissible to prove the location of a cell phone user.” Hill, 818 F.3d at 297. And the Circuit Courts that have considered admissibility of this evidence have split in their assessment of its reliability, and consequent admissibility. For example, the Sixth Circuit has been quite critical of the methodology used by federal law enforcement agencies to estimate the location of a cell phone based on analysis of historical cell site location data:

Cellular technology relies on radio waves to carry transmissions between a cellphone and a cell site, also known as a cell tower. Each tower typically has three antennae, each responsible for covering a 120-degree wedge. . . . A cell site “sector” refers to the area contained within a (usually) hexagonal array of cell towers. A cellphone generates “historical” cell-site data when it places a call and connects to a specific cell tower. Such data includes the particular cell-tower antenna to which the cellphone connected and the duration of the call. The “one-location” tracking approach assumes that the cellphone connected to the closest tower because that tower is most likely to produce the strongest signal. As most cell towers have three antennae facing different directions, the data generally indicate the direction of the caller relative to that tower-i.e. the 120-degree wedge serviced by the antenna-and thereby estimate the cell-site sector from which the call originated. While cell phones are designed to connect to the tower with the strongest signal, that tower might not actually be the closest because factors such as weather, obstructions, and network traffic can cause a call to connect to a tower farther away. FBI historical cell-site tracking does not account for these factors.

United States v. Reynolds, 626 Fed.Appx. 610, 614-15 (6th Cir. 2015) (internal citations omitted). The Reynolds Court further was skeptical of the argument frequently used by the Government to justify admissibility of historical cell site location data based on the fact that many federal trial courts have found that it was reliable.

However, “judges are not scientists and do not have the scientific training that can facilitate the making of [scientific] decisions.” For this reason, Daubert identified the “scientific community, ” rather than federal courts, as the relevant group in which acceptance is an indicator of a technique's reliability. But there is controversy as to whether cell-site tracking can pinpoint a call's origin to a specific cell-sector.

Id. at 616 (internal citations omitted).

         Similarly, the Reynolds Court rejected the reasoning of the Fifth Circuit in United States v. Schaffer, 439 Fed.Appx. 344, 347 (5th Cir. 2011), which had held that historical cell site location analysis was reliable because it had been tested and accepted by the law enforcement community, noting that the methodology had been tested successfully over a thousand times in locating suspects with historical cell site tracking data. The Reynolds Court concluded:

This claim appears to be precisely the sort of “ipse dixit of the expert” testimony that should raise a gatekeeper's suspicion. While being successfully employed “1000 times” may sound impressive, the claim is not subject to independent peer review and fails to establish an error rate with which to assess reliability because there was no information on how many times the technique was employed unsuccessfully.

Reynolds, 626 Fed.Appx. at 616 (internal citation omitted; emphasis in original). But despite its insistence that the proper cohort to assess the reliability of the use historical cell site location data was the scientific community, not the judicial or law enforcement communities, the Sixth Circuit did not resolve whether the methodology had been accepted by the scientific community as reliable, because in the case before it, the evidence had been used to show where the users of various cell phones were not located, rather than where they were located. See Id. at 617.

         Further compounding the confusion, there is disagreement among the circuit courts whether witnesses who testify about cell site location information (usually representatives of cellular service companies or law enforcement officers) testify as lay witnesses, or expert witnesses. In United States v. Graham, the Fourth Circuit concluded that certain portions of the testimony of the records custodian for Sprint/Nextel (who testified about how cell towers communicate with cell phones) and an FBI agent (who testified about how he prepared maps locating various cell towers accessed by the defendants' cell phones based on cell site location data) were lay testimony, not expert testimony. 796 F.3d 332, 364-66 (4th Cir. 2015), reversed in part on other grounds on rehr'g en banc, 824 F.3d 421 (4th Cir. 2016). A careful reading of this opinion, however, suggests that this conclusion was based on the court's view that the records custodian was not offering opinion testimony, but rather facts known by virtue of his employment and experience. But this analysis puts too much emphasis on the difference between opinion testimony and fact testimony-a distinction which Fed.R.Evid. 702 itself does not draw. The introductory sentence of Rule 702 unambiguously states that “[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 . . . .” Fed.R.Evid. 702 (emphasis added). The characteristic that differentiates expert testimony from lay testimony is not the form in which the testimony is presented (opinion versus fact) but rather the subject matter of the testimony itself-whether it involves scientific, technical or specialized knowledge. And, if the subject matter of the testimony does involve scientific, technical, or specialized knowledge, then it is outside the scope of permissible lay opinion testimony, as Fed.R.Evid. 701 itself makes crystal clear. See Fed. R. Evid. 701 (“If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is: (a) rationally based on the witnesses' 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.” (emphasis added)). Similarly, the Graham Court concluded that the FBI agent's testimony about how he created maps based on the cell site data provided by Sprint/Nextel showing the locations of cell sites accessed by the defendants' cellphones at the time of the offenses, as well as the locations of the crime scenes and the home of one of the defendants did not amount to an expert opinion. Graham, 796 F.3d at 365.

         When a cellular services company's records custodian testifies about how a cellular phone network operates (and, more specifically, how a cell phone connects to a particular cell tower within that network), it is hard to believe that the custodian's testimony does not involve technical knowledge. And, even more tellingly, it is difficult to imagine how this testimony can meet the requirement of Rule 701(a) that it be “rationally based on the witness's perception”- since “perception, ” as used in Rule 701, contemplates knowledge derived through first-hand observation. Advisory Committee Note to Fed.R.Evid. 701 (1972) (“Limitation (a) is the familiar requirement of first-hand knowledge or observation.”). A records custodian cannot “observe” how a cell phone uses radio waves to connect to a particular cell tower. Nor can this testimony be based on the custodian's personal knowledge, unless the custodian has the knowledge, training, or education to explain how these devices ...

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