United States District Court, E.D. Michigan, Southern Division
VICTORIA A. ROBERTS, District Judge.
Defendants Marcus Freeman ("Freeman") and Christopher Scott ("Scott") filed a joint motion to exclude expert testimony regarding certain cell site location information or in the alternative a Daubert hearing.
The Motion is DENIED.
Freeman and Scott are charged in a second superceding indictment with Conspiracy to Use Interstate Commerce Facilities in the Commission of a Murder for Hire in violation of 18 U.S.C. § 1958. Freeman is separately charged with Obstruction of Justice by Retaliating Against a Witness under 18 U.S.C. § 1513(b)(1). These charges stem from the murder of Leonard Day ("Day"). In short, while in Ohio, Day allegedly stole a large amount of money and jewelry from Co-Defendant Roy West ("West") and fled to Detroit. West allegedly enlisted others, including Freeman and Scott, to find Day and kill him. Day was later murdered in Detroit.
Freeman and Scott were previously tried for theses offenses. Scott has been tried twice: the first trial ended in a hung jury and the second trial resulted in a conviction that was later vacated. Freeman was tried and convicted; however, his conviction was vacated on appeal.
The Government plans to call FBI Special Agent Christopher Hess ("Agent Hess") to testify about the general location of a cell phone ("target phone") allegedly used by the Defendants.
During previous trials, Hess testified that certain phone calls made or received by the target phone on December 17, 2005 through December 20, 2005, the day of Day's killing, were made and received while the phone was in the vicinity of the scene of Day's killing. Hess based this testimony on the target phone call detail records from Nextel and GPS location data from Nextel cell sites.
In particular, Hess testified that from December 17, 2005, to December 20, 2005, the target phone signaled more than 30 times off the northeast sector of Nextel cellular tower XXXXXXXXX ("Tower 4182"). Hess estimated that the coverage range of a urban cell site like Tower 4182 was 1.5-2 miles, spreading out to the northeast of the tower in an approximate 120 degree pie shape pattern. Hess measured the direction and distance from the scene of Day's killing to Tower 4182, which was one mile northeast, and determined the murder scene was within the proposed coverage range of Tower 4182.
Hess based this testimony on the target phone call detail records from Nextel and GPS location data from Nextel cell sites. Hess did not use propagation reports or engineering surveys to estimate the coverage areas. However, Hess did visit Tower 4182's location and look for manmade and topographical features that could interfere with the tower's signal.
Defendants seek to exclude Agent Hess' testimony. They say it is unreliable and irrelevant. Specifically, Defendants challenge Agent Hess' opinion that Tower 4182's coverage can be estimated within a 120 degree pie shaped arc extending 1.5 to 2 miles from the tower. Defendants say Hess did not use propagation maps that depict the tower's coverage or conduct a geographic survey of the coverage area. Defendants also say Hess did not take into account factors that impact the coverage range of a cell tower.
The Government disagrees. It says Agent Hess used a common methodology and reliable principles.
III. STANDARD OF REVIEW
Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) guide a court's determination of the admissibility of expert testimony. Rule 702 says:
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 ...