Law Enforcement Tracking

HOW LAW ENFORCEMENT CAN, OR CANNOT, TRACK PEOPLE USING THEIR CELL PHONES,

iPADS, BLACKBERRIES, GPS, ETC.

Aaron Romano, Aaron Romano, PC, Bloomfield, CT

DEBUNKING CELLULAR TELEPHONE TRACKING: HOW TO WIN YOUR CASE AND MAKE THE PROSECUTOR CRY

Presented by Aaron J. Romano The Law Office of Aaron J. Romano, P.C.

(860) 286-9026

www.AttorneyAaronRomano.com

Ubiquitous Usage • Over 80% of the U.S. population uses cell

phones. – http://ezinearticles.com/?Prepaid-Cell-Phones:-The-New-

Growth-Industry&id=6192322

• In July 2012, a congressional inquiry found that telecommunications carriers last year fielded 1.3 million requests for subscriber information, including phone location data and text messages, from law enforcement agencies – http://www.informationweek.com/security/mobile/lose-

the-burners-court-okays-prepaid-pho/240005614 ©2012, Aaron J. Romano, PC

http://ezinearticles.com/?Prepaid-Cell-Phones:-The-New-Growth-Industry&id=6192322


http://www.wired.com/threatlevel/2012/07/massive-phone-surveillance

http://www.wired.com/threatlevel/2012/07/massive-phone-surveillance

http://www.informationweek.com/security/mobile/lose-the-burners-court-okays-prepaid-pho/240005614

http://www.informationweek.com/security/mobile/lose-the-burners-court-okays-prepaid-pho/240005614

• What we WILL NOT cover: – Motions to Suppress

• US v. Jones, 132 S.Ct. 945 (2012) – Attachment of GPS to vehicle was a search via

4th Amd • US v. Skinner, 690 F.3d 772 (6th Cir. 2012)

– D had no reasonable expectation of privacy in inherent location data broadcast from cellular phone

• Warrant Issues – 18 USC §2701-2711 – 18 USC §2703(d) – Rule 41 Warrants

– Court Orders - Real Time Tracking ©2012, Aaron J. Romano, PC

Be Aware…

©2012, Aaron J. Romano, PC

1. Identify the Issues in cellular telephone cases.

2. Understand the mechanics of cellular phone tracking/ping from the prosecutor’s perspective.

3. Destroy the evidence via pretrial motions and/or trial.

4. Goal: To prove that cell site tracking is unreliable or “junk science.”


Historical Data v. Real Time Tracking


So How Does a Handset Connect with a Site?


Cell to Landline Connection


“The cell phone uses the closest

cellular site available and therefore can be used to accurately track the

user of the handset.”

NOT TRUE!!! ©2012, Aaron J. Romano, PC

A Scientific Challenge Will Prove:

• CELL PHONE RECORDS ARE

AN INACCURATE MEANS OF

TRACKING THE HANDSET’S MOVEMENT

• Science is your

friend! ©2012, Aaron J. Romano, PC

THE GOVERNMENT’S “EVIDENCE”









VERIZON WIRELESS CELL SITE LOCATIONS

-85dBm Coverage Plot





CONTRACT

v. PREPAID /

PAY AS YOU GO ©2012, Aaron J. Romano, PC

EXPERTS • Law Enforcement • Sprint University • “The Hired Gun”



How Does a Cell Site Work? • Typically, there are 3 sectors,

each using a different frequency: – North – South East – South West

• However, a cell site may have up

to 6 sectors, and often multiple cell phone providers will rent out space on the same cell site.

• Sites can be omni-directional ©2012, Aaron J. Romano, PC

Types of Cell Sites


Remember, the prosecutor must

first establish the cell phone belongs to your client – do not make this part easy! Attack the “science” of cell site

tracking.

The prosecutor claims your client was at the crime scene based upon your client’s cell phone records … what do

you do?


• Remember, cell phone companies are not in the business to help the police track criminals; they want to ensure maximum coverage to their customers.

• This means that many cell sites have the ability to connect to a single phone.


• “ No-drop” coverage by

passing a call from one cell site to the next strongest signal.

• Therefore, coverage

must overlap.


Cell phones are 2-Way radios

A handset seeks the site in its network with the strongest signal, usually the nearest

available site.

If the nearest site is unavailable, the phone seeks

the next strongest signal, usually the next nearest site




Manfred Schenk, Defense Expert

Typical Case:

• S.O.D.D.I. “Some Other Dude Did It”


• The cellular telephone records place your client at the scene of the murder CLIENT’S STORY

But my guy puts himself at the scene!!!

• Gain credibility with the jury • Showcase your winning personality and scientific

knowledge • Destroy the expert by making him agree • Your “weak” defense now becomes credible • Confuse the prosecutor – throw them off your trial

strategy - make them work! • Why is the prosecutor using junk science if their

case is so strong? • Never underestimate the creativity of a jury


Defenses Who had the phone?

Prove the defendant had

phone at the time.

Was it a shared phone?


Investigation Tips • Call the telephone numbers on the detail sheets • Determine if people in the records know the

defendant – should they testify? • Determine if people in the records had contact

with the defendant via telephone that day/night • Examine client’s phone contacts if available

– Nicknames for telephone numbers

• Examine phone contacts of other parties if available (friendly witnesses) – Nicknames for telephone numbers


Contract v. Prepaid/Pay as you Go Do not let the prosecutor say a prepaid phone is a “drug dealer”

phone.


It’s Simple Economics… • Fastest Growing Market =$ Savings for Prepaid http://www.cellular-

news.com/story/46270.php

• In 2008 about 50 percent of new cell phone users signed up for prepaid cell phone service. The next year, in 2009, about 80 percent of phone subscriber growth came from prepaid plans. http://ezinearticles.com/?Prepaid-Cell-Phones:-The-New-Growth-Industry&id=6192322

• Industry predicts 33% of cell phone users will be prepaid by mid 2013

• Prepaid cell phones make up 25% of the cell phone market

http://www.dailykos.com/story/2012/10/09/1142021/-Prepaid-Phone-Users-Unpollable-Add-4-5-to-Obama-in-All-Polls#

• More than one million wireless subscribers in Chicago are on a

prepaid plan http://dialog.scarborough.com/index.php/a-look-at-mobile-payment-plans-for-non-credit-consumers/


http://www.cellular-news.com/story/46270.php

http://www.cellular-news.com/story/46270.php














http://www.dailykos.com/story/2012/10/09/1142021/-Prepaid-Phone-Users-Unpollable-Add-4-5-to-Obama-in-All-Polls


























• Only you can make the decision about how to challenge the evidence pretrial v. trial.

• There is no doubt that cell phone site “tracking” is an innaccurate

method of locating the handset.

• Do you want to raise it by way of a “Daubert” hearing? – U.S. v. Evans – Granted – State v. Davis – Denied

• This could be a good opportunity to get discovery and a trial run at the

Government’s expert.

• If you don’t think the judge will keep out the cell site evidence, however, you may not want to reveal your strategy pre-trial.

• Should you retain your own expert, or simply destroy theirs? ©2012, Aaron J. Romano, PC

Potential Legal Issues • Is the evidence relevant? (Fed. R. Evid. 402) • Is the maker of the call provable? (Fed. R. Evid. 104 (b)) • Is probative value substantially outweighed by danger of

unfair prejudice, confusing the issues, misleading jury? (Fed. R. Evid. 403)

• Lay witness allowed? • If an expert is required, what expertise? • Fed. R. Evid. 702 and 703: given the potential unreliability

inherent in opinions as to handset locations based upon stored cell site data, and the disparity in accuracy using GPS/Trilateralization type methods, are such opinions admissible?

• See Blank law review article, pp. 12-36. ©2012, Aaron J. Romano, PC

First Line of Defense • Object to the Expert

– Voir Dire the Expert – Challenge Expertise – Sprint Unversity – Memberships Paid? Requirements? – Look Up Memberships for articles (Cellular

Telecommunications Industry Association (CTIA)) – Prepare for learned treatise exceptions for trial – and

get him/her to adopt author of treatise • Have your Expert present

– At pretrial hearing – You may or may not want to present him/her – They will assist in cross prep/trial


Cross-Exam of Expert • Pretrial Motion

– Intimidate the witness – Make him cry – Train the expert – Prep for use of your

expert

• Trial – Be Nice – Use expert to

showcase your expertise

– Get him to agree with softball questions

– Educate the Jury – Be the teacher – Use demonstrative

evidence – General to Specific


Challenge the Assumptions TEACH YOUR FACT FINDER:

• Cellular records can only tell you how the call was made not where the handset was.

• The area within which the handset made the call to the site is too large to pinpoint the location of the handset.

• Strongest signal is not necessarily the closest site.


Cell Coverage In Theory Cell Site (Tower)

Cells:

Sector A - North

Sector B – Southwest

Sector C - Southeast

The “cellular”

aspect relates to

the system of cell sites or “towers,” which cover cells (areas of coverage overlap of

neighboring sites).



Area of Coverage 1 Assume: • Omni-Directional Tower • Radius 10mi - 35mi

Cell Site 10 mile radius

Area = π r ² 314 sq. mi. = 3.14 x (10x10)




MATH 101 Area of a circle: A=πr²

Even if it is a three-sided site and the direction is

known 314/3 = 104.67 sq. miles

Radius = 10 Miles

3.14 x 10 x 10 = 314 sq. miles


MATH 102


1 Square Mile = 640 Acres 314 sq. mi. x 640 = 200,960 acres

The bigger the number, the more you make your point:

The range of the site is too large to pinpoint with any degree of accuracy where the handset

is located.

1 Square Mile = 27,878,400 Sq Ft

Acres:

Square Feet:

If the handset takes up 1 sq. ft. of space there are 27,878,400 possible locations

within 1 sq. mi. where the handset can be located.

Within 314 sq. mi. there are

8,753,817,600 possible locations

THE POSSIBILITIES ARE ENDLESS…

• Just think, the average plot of land per house in a suburban

area is 1/3 of an acre.

• That’s 602,880 potential occupancy locations! Plus all

the roads, yards, and spaces in between.

• Now, in an urban area, imagine

a ten story apartment building, with ten units per floor – Just do

the math!



Hyatt Hotel, 2 Fountain Plaza, Buffalo, NY (2 mi radius)


Hyatt Hotel 2 Fountain Plaza, Buffalo, NY (10mi)


Hyatt Hotel, 2 Fountain Plaza, Buffalo, NY (31.2 mi)


Hyatt Hotel, 2 Fountain Plaza, Buffalo, NY (31.2mi)


Hyatt Hotel, 2 Fountain Plaza, Buffalo, NY (31.2 mi)

Defense Expert: Cell Tower Range

• A CELL TOWER SIGNAL CAN REACH A TOTAL OF 31.2 MILES!!!

– (See State v. Davis

MMX-CR08-0185484-T, N.T. 11/29/2010 at 29-30)

– That is a total area of

2,800 square miles!

– Which is the equivalent of 1,792,000 acres!


How to Create the Map Radius Diagram:

• http://www.freemaptools.com/radius-around-point.htm

• Google Earth


http://www.freemaptools.com/radius-around-point.htm

http://www.freemaptools.com/radius-around-point.htm




HANDSET WILL BE IN RANGE OF THE SITE INDICATED IN THE RECORDS

• It will also be in range of multiple other sites

• There is no correlation between the closeness of the site used by the handset compared to the other

sites within its range


Many factors affect the choice of cell site, not just distance. These factors include:

• Weather conditions • Angle of antennae on site • Height of the site • How high site is above sea

level • Fractional percentage of

channel assignments of site • Number of cell phone

providers utilizing a site • Number of cell phone

providers within a call region • Performance of maintenance

on sites • Wattage output of site • Site Traffic

• Make and model of the phone • Wattage output of the phone • Generation of the phone • Bandwidth of the phone • Call Made Indoors v. Outdoors • Call Made in urban v. rural

environment • Topography of the area site is

located. • Location of site – urban or rural • Number of antennae on site • Height of the antennae on sites • Location of antennae on sites • Direction of antennae on sites • Range of Sites


Multiple Factors May Cause Service Interruptions

• Cellular Sites are designed to overlap to ensure coverage

• If carriers have dropped calls, customers

will change carriers

• Can you hear me? The “Most Coverage” is desirable to

consumer ©2012, Aaron J. Romano, PC

INVESTIGATE SITES

• Urban cell sites may not be “towers” at all

• The term “cell tower” conveys the image that it “towers” over its surroundings and therefore is obstacle- free


Cross-Examination Re: Factors






1. Cell site out of service – maintenance

2. Cell site handling the maximum number of calls already

3. Cell site is obstructed 4. Cell site’s antenna is

facing in the wrong direction.

5. STRONGEST SIGNAL • Government expert won’t have

information regarding the cell sites.

Cell Sites:

The opinion offered will be the caller is in the “red” zone. – Is it reliable?

Strongest Signal Closest Site

Handset making or receiving a call


Ever Wait in Line at the Bank?


Cell Site #1

Cell Site #2

Coverage Area #1

Coverage Area #2



1

2

3

4

If all sites are equidistant…

…to which site

will the handset

connect? ©2012, Aaron J. Romano, PC


Assume: HANDSET IS STATIONARY


VARIABLES ARE CONSTANTLY CHANGING

Handset will connect with different sites,

creating the illusion of movement


The Assumed Range of the Sites May be

Greater than the Communication Potential of the

Handset ©2012, Aaron J. Romano, PC

Handset Assume: • Omni-Directional Site • Radius 10mi - 35mi • Equidistant Sites

A=πr² Use Formula for

Area of Coverage – X 4= 1,256 sq.

miles ©2012, Aaron J. Romano, PC

314 sq. mi.

314 sq. mi.

314 sq. mi.

314 sq. mi.

10 mi.

10 mi. 10 mi.

10 mi.

-95dBm Coverage Plot

Propagation Map Problem

• MIL if prosecutor seeks to use in evidence

• Keep Out! • Does not reflect sites at time of

incident • Creates illusion of little to no

overlapping coverage


Smarter Investigation? • Examine the Assumptions • Anticipating challenge to coverage area • No data to support conclusions




Real time Location

• Increased Accuracy • Compare to demonstrate inaccuracy of site

tracking to finder of fact


Location Determination

• “Handset Accuracy” – Determinations, (usually

via a GPS chip in the phone): usually accurate within 50 feet.

• “Network Accuracy” – Determinations (usually

using trilateralization): accuracy can be within 100 feet.


Network Accuracy

• Time Difference Of Arrival (TDOA) to each of 3 cell sites translates to a circular distance from each

• Angle of Arrival (AOA)

uses TDOA from at least 2 towers & direction of signal


Not Good Enough for 9-1-1? Not Good Enough for Conviction!

• The Wireless Communications and Public Safety Act of 1999 directed the FCC to make 9-1-1 the universal emergency number for all telephone services.

• Enhanced 9-1-1 (E9-1-1) automatically reports the

telephone # and location of 9-1-1 calls made from cellular phones using GPS location.

• The Wireless Communications and Public Safety act of

1999 requires all cell phones manufactured after 2006 to include a GPS chip.






AN AARON ROMANO TRIAL TIP…

This would be a good time to lean over to the prosecutor and whisper, “My client has agreed to accept a dismissal.”


Congratulations!

You have now made the prosecutor cry…


List of PDF Documents

• Sample Subpoena to Obtain Cell Phone Records • Transcripts • Motions • Opinions on “Daubert/Frye” Hearings • List of contacts for cellular companies


Cherry Biometrics

• Michael Cherry & Manfred Schenk – http://www.cherrybiometrics.com/


http://www.cherrybiometrics.com/

Contact Information

Law Office of Aaron J. Romano, P.C. The Winton Building

45 Wintonbury Avenue, Suite 107 Bloomfield, Connecticut 06002

www.AttorneyAaronRomano.com (860) 286-9026

Fax: (860) 286-9028 ©2012, Aaron J. Romano, PC

1

AARON J. ROMANO, P.C. BY: Aaron J. Romano, Esquire Firm Juris No.: 415829 45 Wintonbury Avenue, Suite 107 Bloomfield, CT 06002 Tel: (860) 286-9026 Attorney for DEFENDANT ___________________________________ DOCKET NO. : SUPERIOR COURT STATE OF CONNECTICUT : JUDICIAL DISTRICT OF

MIDDLESEX v. : AT MIDDLETOWN

: AUGUST 23, 2010 Defendant.

MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT’S MOTION IN LIMINE TO PRECLUDE

ADMISSION OF CELLULAR TELEPHONE TOWER “PING” EVIDENCE I. Introduction

Pursuant to the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments to the

United States Constitution, Article First, Sections Eight, Nine, and Ten of the

Connecticut Constitution, and State v. Porter, 241 Conn. 57 (1997), the defendant,

by and through undersigned counsel, hereby respectfully moves this

court to preclude the admission of cellular telephone tower “ping” evidence.

II. Argument

A. Cell Phone Records are Not Relevant Evidence

As the proponent of the “cell tower” evidence, the State first must prove the

preliminary fact that a “ping” registered at a particular tower from a specific cell phone at

a particular time is relevant. The appropriate rules for determining the preliminary fact of

relevancy for this issue are found in Conn. Code Evid. §4-1. Relevant evidence is

defined as “evidence having any tendency to make the existence of any fact that is

material to the determination of the proceeding more probable or less probable than it

would be without the evidence.” Conn. Code Evid. §4-1.

2

In order to inculpate defendant by offering his cell phone “ping” as

circumstantial evidence of his location against him before the jury based on the tower’s

location, the State first must prove the preliminary fact that there is a repeatable nearly

1:1 causal correlation of cell phones signals being routed to the geographically nearest

cell tower. [emphasis supplied] Otherwise, what tower handles the cell phone call is

irrelevant, and the use of a cell tower ping to prove a suspect’s location would be grossly

and dangerously misleading to the trier of fact. The jury necessarily would speculate on

whether the a ping always hits the closest cell tower, or whether it can be a ping

transferred for myriad technical reasons from another cell tower, or whether the

temporary topography of the cell phone and topography of the tower was a factor in that

tower being chosen by the cell phone’s electronic query rather than another tower closer

by. To allow such speculation violates the due process clauses of the Connecticut and

federal constitutions.

At this juncture, the defense can find no foundation for the State’s argument that

phone use necessarily means that the phone is close to the area of the cell tower.

B. Under The Laws Of Physics And Mathematics, Finding The Location Of A Particular Cell Phone Requires Triangulation Between The Phone And At Least Two Other Reference Points.

The State alleges that the signal hits the nearest cell tower invariably, and

invariably the person must have been in the vicinity of the cell tower while using the

phone. Unfortunately, that’s not the way it works, nor has the State laid a foundation for

representing that’s the way it works.

The theory relied upon by the State is known as “Cell Of Origin” positioning, or

“COO.” It is considered the worst means of locating a cell phone, and is rife with

potential for reaching a false conclusion. The only method that does work is the

mathematical tracking of a person to a certain location, known as triangulation.

3

Crude COO positioning considers the location of the base station to be the

location of the caller. This is not very accurate, as the majority of mobile network cells

are projected from an antenna with a spread of 120º (i.e. three mounted on a mast to give

complete coverage) giving a signal coverage area with the base station at one corner,

rather than the center. Omni-directional cells may be used in rural locations (which

typically have large ranges and hence uncertain locations for phones within them) and in

cities (where they may have ranges of a few hundred meters to several miles depending

on the coverage). The underlying issue is that mobile phone networks are optimized for

capacity and call handling rather than locating phones. (emphasis supplied). A cell

phone is a radio - an extremely sophisticated radio, but a radio nonetheless. To send and

receive calls, text messages, or e-mail, cell phones communicate with radio towers,

known as cell towers. The cell towers are distributed throughout a coverage area; cell

phone users are often in range of more than one.

The Global System for Mobile Communications (“GSM”) adopted by 80 percent

of the world’s telecommunications administrators, including the United States, relies on

the fact that the phones constantly measure the signal strength from the closest 6 base

stations and lock on to the strongest signal (the reality is slightly more complex than this

and includes parameters that each individual network can optimize, including signal

quality and variability. Most networks seek to optimize for minimum power

consumption, but the overall effect approximates to each phone trying to find the

strongest signal at any given moment. However, it is the momentary strength of the

signal that causes the cell phone to interface with a particular cell tower. All networks

generate 'splash maps' predicting signal coverage when planning and managing their

4

networks. These maps can be processed to analyze the area which will be dominated by

each base station and to approximate each area by a circle (the actual area of coverage

may not be exactly where predicted... and in any case will be an irregular shape, rather

than a circle). The accuracy of network-based techniques varies, with cell tower

identification – i.e., the “evidence” offered in the earlier trials without objection – as the

least accurate and triangulation as the most accurate.

What has not been provided to the defense is the data necessary to triangulate the

location where the cell phone really was. Since the end of 2005, the telephone carriers

have been required to comply with a Federal Communications Commission regulation

called “e911.” 1

1

The e911 system is predicated upon calculating TOA (Time of Arrival –

Signal), TDOA (Time Differential of Arrival) and/or AOA (Angle of Arrival), all of

which have importance in determining the true whereabouts of the cell phone.

As noted, supra, cell phones attempt to connect with the strongest signal at a

given moment, not the closest. At least hypothetically, a strong emitting tower would

attract signals from farther away, depending on the location of the cell phone. The

attempt to use the pings off the transmitters upon which the State is relying in trying to

pinpoint defendant’s location, is strongly opposed. The federal telephonic standard for

The FCC regulation is attached at the end of this points and authorities. The Court should note that the only time when cell carriers must exercise the ability to pinpoint a cell phone location is when a subscriber calls “911”. In other words, the cell companies have the computers to do the math of comparing multiple signal strengths, locations, elevations, etc. to find someone in an emergency, but they only are obligated to participate in tracking if the call source is a “911 Call”. Assuming that the State has turned over all the cell phone information provided them by the carriers, the data provided does not answer the question, “Where was the cell phone when juxtaposed against it was first pinged?”

5

locating a cell phone’s point of origin is triangulation. 2 CFR Part 9.5, which required

compliance to be implemented by the phone companies on December 31, 2005.

C. It’s the Undersigned’s Belief that No Published Connecticut Case Has Ruled Upon The Admissibility Of A “Cell Tower Ping” As A Basis To Infer A Suspect’s Location At A Given Time.

There is only one published California case involving the use of cell tower

evidence to identify the location of a murder suspect at a given time, and in that case,

appellate counsel did not argue against admitting the cell tower evidence, and as a

consequence, the Court of Appeal noted the fact but ignored the issue. People v. Martin,

(2002) 98 Cal. App. 4th 408, 119 Cal.Rptr.2d 679. Inter alia, the defendant confessed,

and the principal issue on appeal was a Sixth Amendment argument involving whether

defendant’s girlfriend was a “governmental agent” when she secured defendant’s post-

arraignment confession.

D. A Porter Hearing is Required to Determine the Validity for the Assertion that the “Ping” is an Accurate Indicator of the Defendant’s Location

The question of how a signal transmitted by a cell phone is selected by a

particular cell tower is purely a question of science and engineering. However, it is not

something so pedestrian that we take its daily use for granted and know how it works.

Thus, the bald assertion that the “ping” is an accurate indicator of the defendant’s

location should be subject to a Porter hearing. The test articulated in State v. Porter, 241

Conn 57 (1997) applies not only to scientific evidence, but to “innovative scientific

techniques” as well. Hayes v. Decker, 263 Conn. 677 (2003). Porter, supra, is applicable

in situations in which “the ordinary juror must sacrifice his independent judgment in

deference to the expert” or that creates an “‘aura of mystic infallibility’ surrounding

‘scientific techniques,’ ‘experts’ and ‘fancy devices’ employed.” State v. Hasan, 205

Conn. 485 (1987).

6

An analysis pursuant to Porter is fundamentally a two part inquiry: (1) Is the

evidence scientifically valid, and (2) Can the reasoning be applied to the facts of the

present case? Porter, supra at 63-64. The primary factor in determining scientific

validity is whether the scientific principle has gained “general acceptance” in the relevant

scientific community. See State v. Reid, 254 Conn. 540 (2000). As to the second factor,

relevance demands that the scientific evidence, no matter how valid, must be applicable

to the facts at issue. Hayes v. Decker, 263 Conn. 677 (2003). Upon objection by the

opposing party, the proponent of the scientific evidence bears the burden of

demonstrating its admissibility. State v. Torres, 85 Conn. Conn. App. 303 (2004).

The State’s methodology in asserting defendant’s presence within a short distance

of the accident scene based on a cell tower ping is a misapplication of information

creating a “half truth.” At best, the ping off the cell tower means that defendant may

have been there or may not have been there.

The methodology used by the State – the “Cell of Origin” methodology – to

determine location is not accepted in the scientific community because it is inaccurate

and prone to error based on numerous variables. It is not accepted as accurate by the

regulatory bodies that oversee cellular telecommunciations, as Congress and the FCC

have mandated a program relying on 6 separate points to be measured and fed through

computers to be available to “triangulate” (perhaps “sextengulate?”) the location of the

cell phone.

Accepting – thus far without any foundation – that a cell tower location equals a

cell phone’s location raises a question of admissibility, not just one of weight. One can

say that a scale is inaccurate, and the Court could respond, “That goes to weight rather

than admissibility, counsel” [the pun was inadvertent], but if someone attempts to weigh

himself by standing on a hay stack, his opinion of his weight should not be admitted since

the haystack was not created for the purpose of weighing people. In the latter scenario,

7

presumably the Court asks: “Can you explain to me how your standing on a haystack

allows you to form an opinion about how much you weigh?”

The cell towers were not manufactured to act as surveillance tools. They were

created to move packets of information as swiftly as possible and at the cheapest possible

power output and cost possible from one cell tower to another, to allow companies to

maximize their profits without wasting (from their perspective) transmission power and

excessive bandwidth. It may be facile to point out that with GPS (“global positioning

satellite”) technology, we can find our location not just to degrees latitude and longitude,

but to minutes and seconds of those degrees, where a century ago navigators literally

relied upon the ancient astrolabe, quadrant, sextant and an extremely accurate and durable

time piece to compute over several hours for information we now get in less than 30

seconds, and which we can effortlessly repeat. The FCC has forced the phone companies to reallocate their cell towers to assist

police. To that end, a “standards” committee agreed that six (6) cell towers would be

sufficient to accurately track down the 911 caller’s location. Based on that data, a phone

company computer quickly processes a great deal of trigonometry 3

The technology breakthrough that has allowed cell phones to add GPS, email,

messaging and other services has been a radical increase in transmission bandwith, an

increase known colloquially as “G3.” The jury should not be allowed to believe that

finding a cell phone location is a simple task, because it is not. The espoused position

to inform a police

dispatcher where the caller appears to be.

3 As the Court and counsel may recall from their school days, a navigator, using a sextant,

undertakes a series of observations, all of which involve the creation and measurement of artificial triangles. He then takes the figures measured by the sextant from his observations, performs several trigonometric equations that results in his deriving the ship’s latitude. Cell towers, in effect, are the telecommunications era version of a sextant. Pinging off one (1) cell tower without at least a second (although the federal government insists on six) cell tower being used as a reference point precludes the application of trigonometry.

8

that the State has suggests that a belief that a cell tower operates as a RADAR. It does

not. 2

The evidence and methodology purported by the State and used to substantiate the

conclusion that a “ping” off a cell tower is indicative of the defendant’s location is faulty

and misleading. To permit its admission would be a clear violation of the defendant’s

constitutional rights.

III. Conclusion

The cellular ping is a linchpin in the State’s already weak case, and it cannot be

fastened carelessly. It is respectfully submitted that the State be required at a Porter

Hearing outside the presence of the jury, to lay a foundation for the assertion that the

“ping” is such an accurate indicator of defendant’s location that we are all willing to bet a

man’s life on that proposition.

RESPECTFULLY SUBMITTED BY THE DEFENDANT By: Aaron J. Romano, Esq. Juris No. 415829 45 Wintonbury Avenue, Suite 107 Bloomfield, CT 06002 Tel: (860) 286-9026 Fax: (860) 286-9028

2

RADAR measures the distance to an object by transmitting a short pulse of radio signal (electromagnetic radiation), and measuring the time it takes for the reflection to return. The distance is one-half the product of round trip time (because the signal has to travel to the target and then back to the receiver) and the speed of the signal. Since radio waves travel at the speed of light (186,000 miles per second or 300,000,000 meters per second), accurate distance measurement requires high-performance electronics.

In most cases, the receiver does not detect the return while the signal is being transmitted. Through the use of a device called a duplexer, the radar switches between transmitting and receiving at a predetermined rate. The minimum range is calculated by measuring the length of the pulse multiplied by the speed of light, divided by two. In order to detect closer targets one must use a shorter pulse length. N.B.: Cell towers are not designed as Radars.

9

CERTIFICATION

Pursuant to Practice Book §§ 10-12 through 10-17, and 11-1, this 23rd day of August 2010, the undersigned hereby certifies that this document complies with all format provisions and further certifies that a copy of the foregoing was delivered in hand to all counsel of record: Russell Zentner, Esq., Office of the State’s Attorney- Part A, One Court Street, Middletown, CT 06457-3374.

Aaron J. Romano, Esq.

Comm. of Superior Court

10

AARON J. ROMANO, P.C. BY: Aaron J. Romano, Esquire Firm Juris No.: 415829 45 Wintonbury Avenue, Suite 107 Bloomfield, CT 06002 Tel: (860) 286-9026 Attorney for DEFENDANT ___________________________________ DOCKET NO. : SUPERIOR COURT STATE OF CONNECTICUT : JUDICIAL DISTRICT OF MIDDLESEX v. : AT MIDDLETOWN


DEFENDANT’S MOTION IN LIMINE TO PRECLUDE ADMISSION OF CELLULAR TELEPHONE TOWER “PING” EVIDENCE

Pursuant to the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments to the United

States Constitution, Article First, Sections Eight, Nine, and Ten of the Connecticut Constitution,

and State v. Porter, 241 Conn. 57 (1997), the defendant, by and through

undersigned counsel, hereby respectfully moves this court for an order precluding the admission

of cellular telephone tower “ping” evidence. The defendant submits a memorandum of law

contemporaneously herewith in support of the foregoing motion.

2

RESPECTFULLY SUBMITTED BY THE DEFENDANT By_________________________________ Aaron J. Romano, Esq. Juris No. 415829

45 Wintonbury Avenue, Suite 107 Bloomfield, CT 06002 Tel: (860) 286-9026 Fax: (860) 286-9028

CERTIFICATION Pursuant to Practice Book §§ 10-12 through 10-17, and 11-1, this 23rd day of August 2010, the undersigned hereby certifies that this document complies with all format provisions and further certifies that a copy of the foregoing was delivered in hand to all counsel of record: Russell Zentner, Esq., Office of the State’s Attorney- Part A, One Court Street, Middletown, CT 06457-3374.

Aaron J. Romano, Esq. Comm. of Superior Court

3

DOCKET NO. : SUPERIOR COURT STATE OF CONNECTICUT : JUDICIAL DISTRICT OF

MIDDLESEX v. : AT MIDDLETOWN


O R D E R

AND NOW, to wit, this day of , 2010, it is hereby ORDERED

AND DECREED that Defendant’s Motion in Limine to Preclude Admission of Cellular

Telephone Tower “Ping” Evidence is GRANTED/DENIED.

BY THE COURT: __________________________ J.

4

AARON J. ROMANO, P.C.BY: Aaron J. Romano, EsquireJuris No.: 41582945 Wintonbury Avenue, Suite 107Bloomfield, CT 06002Tel: (860) 286-9026 Attorney for DEFENDANT___________________________________DOCKET NO. : SUPERIOR COURT OF CONNECTICUT

STATE OF CONNECTICUT : JUDICIAL DISTRICT

v. : OF MIDDLESEX

: OCTOBER 18, 2010Defendant.

DEFENDANT’S BRIEF IN SUPPORT OFDEFENDANT’S MOTION IN LIMINE TO PRECLUDE

ADMISSION OF CELLULAR TELEPHONE TOWER “PING” EVIDENCE


States Constitution, Article First, Sections Eight, Nine, and Ten of the Connecticut Constitution, and

State v. Porter, 241 Conn. 57 (1997), the defendant, by and through undersigned

counsel, hereby respectfully moves this court to preclude the admission of cellular telephone tower

“ping” evidence.

I. FACTS

On or about August 23, 2010 the Defendant filed a Motion in Limine to preclude admission

of cellular telephone tower “ping” evidence, as well as a memorandum of law in support thereof.

2

On or about October 4, 2010 and October 5, 2010, a Porter hearing was held to determine if the

State’s supposition, that the location of a single cell phone tower indicated the location of the

defendant, was based on valid scientific principles. The State presented expert witnesses Gary

Pellegrino, Alexis Eon, telephone records, and a calculation of distance between two different towers

and the lex loci delicti. The Defendant presented expert witness Manfred Schenck. As per the

request of the Court, the Defendant now submits this brief in support of his pending motion.

II. ARGUMENT

The Court is the vanguard against the admission of “junk science,” both to protect the

constitutional rights of the defendant and to uphold the sanctity of the judicial process itself. In

response to the undeniable concern that defendants may be subject to the deleterious effects of

illegitimate theories masquerading as concrete scientific methodologies, the Connecticut Supreme

Court formulated guidelines for the admission of scientific evidence. The test articulated in State

v. Porter, 241 Conn 57 (1997) applies not only to scientific evidence, but to “innovative scientific

techniques” as well. Hayes v. Decker, 263 Conn. 677 (2003). Porter, supra, is applicable in

situations in which “the ordinary juror must sacrifice his independent judgment in deference to the

expert” or that creates an “‘aura of mystic infallibility’ surrounding ‘scientific techniques,’ ‘experts’

and ‘fancy devices’ employed.” State v. Hasan, 205 Conn. 485 (1987).

Upon objection by the opposing party, the proponent of the scientific evidence bears the

burden of demonstrating its admissibility. State v. Torres, 85 Conn. Conn. App. 303 (2004). An

analysis pursuant to Porter is fundamentally a two part inquiry: (1) Is the evidence scientifically

valid, and (2) Can the reasoning be applied to the facts of the present case? Porter, supra at 63-64.

The primary factor in determining scientific validity is whether the scientific principle has gained

3

“general acceptance” in the relevant scientific community. See State v. Reid, 254 Conn. 540 (2000).

As to the second factor, relevance demands that the scientific evidence, no matter how valid, must

be applicable to the facts at issue. Hayes v. Decker, 263 Conn. 677 (2003).

Notably, although it is the State’s burden to prove the validity of the scientific evidence on

which it relies, the State never articulated precisely what scientific principle it was attempting to

utilize. The Defendant is forced to presume that the State was attempting to establish an unassailable

correlation between the location of the cell phone tower a call “pinged” off of and the defendant’s

location, thereby permitting the State to propound that the defendant’s exact location could be

determined from the location of a single cell phone tower. This deceptively facile premise is not

based on any scientific principles and distorts the actual use of cell phones, which is to be

communication, not tracking, devices. Porter Hearing N.T. 10/22/10 at p. 121.

The State’s postulation implies that the only factor upon which utilization of a particular cell

phone tower depends on is the distance between the cellular handset and the cellular tower. This is

simply untrue. Not only is location of the cell tower not indicative of the caller’s location, the ability

of a cell phone handset to “ping” off a cell tower depends on a multitude of factors, completely

independent from distance, including but not limited to:

• the make and the model of the cellular phone

• the wattage output of the cellular phone

• the generation of the phone

• the bandwidth of the cellular phone

• whether the phone call was made inside or outside

• whether the phone call was made in an urban or rural environment

4

• the topography of the area a cell phone tower is located

• whether the cell tower is located in an urban or rural environment

• the number of antennas on the cell tower

• the height of the antennas on the cell tower

• the location of the antennas on the cell tower

• the direction of the antennas on the cell tower

• the angle of the antennas on the cell tower

• the number of cones on a cell tower

• the height of the cones on the cell tower

• the direction of the cones on the cell tower

• the angle of the cones on the cell tower

• the height of the cellular tower

• how high the cellular tower is above sea level

• the fractional percentage of channel assignments of the cell tower

• the number of cellular phone providers utilizing a tower

• the number of cellular phone providers within a call region

• the performance of maintenance on the cellular towers

• the wattage output of the cellular tower

• the range of the cellular tower

• the weather conditions

There was no evidence presented that the State had even considered these various factors

when asserting its claim that the defendant’s location could be derived from the tower locations.

5

Rather, the State blithely professed its baseless conclusion and expected the Court to unquestioningly

accept the same. When asked by defense counsel, the State’s expert, Mr. Pellegrino, acknowledged

that all of the factors articulated above could impact the communication of the cellular handset with

a particular cellular tower, but was unable to testify as to the specific effects in this case, as neither

he nor the State possessed the requisite information. Porter Hearing N.T. 10/22/10 at pp. 87-92.

Instead of valid scientific evidence, the State presented the Court with Verizon Billing

Records for a target phone number and propagation maps, ultimately not admitted into evidence, that

the State had requested Verizon prepare for the purposes of this litigation. Billing records are

generated for the sole purpose of business record keeping. Id. at p. 123. They are not maintained

as a tracking log of the user of a particular cellular handset. Id. Similarly, the positioning and usage

of cellular towers is not determined in an effort to aid the State in the tracking of a defendant; they

are situated so as to best insure that calls go through. Id. at p. 95. Moreover, the propagation maps

submitted by the State portrayed only the select number of cell towers- those that the State requested.

There are potentially hundreds of cell towers in that given area, many with overlapping coverage.

Id. at p. 61. What the State does not want to admit is that cellular towers are a flexible resource,

designed for telephone companies seeking profit, not for the police to determine location. Cell

phones were not intended to be used as tracking tools, and so any attempt to use them as such in the

manner expressed by the State is inherently corrupt. The State’s use of maps and numbers cannot

disguise the fact that there is no objective scientific data to support its erroneous contention.

The State’s position is entirely undermined by the expert testimony presented at the Porter

hearing. As expounded by both Mr. Schenk and the State’s expert, the location of a cell tower does

not correlate with the location of the cell phone user. Id. at pp.104, 144. Even the State’s own expert

About Connecticut, 1 http://www.ct.gov/ctportal/cwp/view.asp?a=843&q=246434 (Last visited Oct. 17, 2010).

Delaware Geography, 2 http://portal.delaware.gov/delfacts/geo.shtml (Last visited Oct. 17, 2010).

Our Geography, 3 http://sos.ri.gov/kidszone/geography/ (Last visited Oct. 17, 2010).

6

was forced to contradict the State’s conclusion given the unreliable methodology the State employed:

Attorney Romano: “Okay. So, what we’re talking about here when you talked about

the tower communicating with the cell phone, and the tower records themselves,

we’re not talking about a closest tower, we’re talking about this cell tower with the

best signal, right?”

Mr. Pellegrino: “That’s correct.” Porter Hearing N.T. 10/22/10 at p. 104.

As Mr. Schenk testified, a cell tower signal can reach 31.2 miles; that is a total area of

twenty eight hundred square miles in which a caller could feasibly be located. Id. at pp. 129-130.

Twenty eight hundred square miles is more than half the size of the Connecticut , and a larger area1

than either that of the states of Delaware and Rhode Island . Therefore, for the State to allege that2 3

a person’s location can be determined with any sort of specificity from the location of a single cell

tower is preposterous. When asked by defense counsel about the potential rate of error for the

tracking scheme proposed by the prosecutor, Mr. Schenk replied that he was unable to answer that

question. When asked to state the reason he was unable to answer, Mr. Schenk responded: “Well

because nobody has done it whatever. So, nobody has measured as to what the potential error is

because it’s, because a tracking, one particular signal source is inherently inaccurate and not

possible.” Porter Hearing N.T. 10/22/10 at p. 132.

http://www.ct.gov/ctportal/cwp/view.asp?a=843&q=246434

http://portal.delaware.gov/delfacts/geo.shtml

http://sos.ri.gov/kidszone/geography/

7

Although there is the possibility that cell towers could be used to determine a range of

location if a trilateralization calculation is done, the State failed to even do that. Trilateralization

requires three cell towers and would still only result in an approximate, not an exact, location.

However, the State did not utilized three towers. Id. at p.123. Instead, the State would like the Court

to accept that location can be determined using just one cell tower. There is a reason that no

commercial industries, such as the trucking industry, use the system proposed by the State to

determine location. Id. at p.132. This is because it is inescapably inaccurate. If the method

proposed by the State worked, other areas, not merely law enforcement, would employ the technique

as a reliable tracking method.

The only accurate way to determine location is through the use of a Global Positioning

System (GPS). Id. at pp. 121-122. Unlike cellular phones, GPS operates using satellites. Pursuant

to FCC regulations, cell phones are now required to contained GPS chips as part of an E911

initiative. Id. at p. 83. This is so that emergency responders can accurately locate a caller in distress.

If the methodology proposed by the State was at all accurate, there would be no need for the

government to require GPS chips in phones. Id. at p. 85. A methodology that has been determined

by independent government agencies not to be able stake a caller’s life on, should not now be

accepted as reliable enough to risk a defendant’s liberty.

III. CONCLUSION

The State would like the Court to accept that a Defendant’s location can be determined based

on the location of a single cellular tower. This proposition is based on junk science and is in fact

entirely refuted by valid scientific principles and the prevailing technological industry standards.

Simply put, a cellular phone is a communication device, not a tracking device. Any attempt to use

8

it as such distorts both science and law. The supposition propounded by the State should not be

permitted by the Court and any evidence regarding cell phone tower “pings” is appropriately

excluded.

RESPECTFULLY SUBMITTEDthis 18 day of October, 2010 BY THE DEFENDANTth

By_________________________________Aaron J. Romano, Esq. Juris No. 41582945 Wintonbury Avenue, Suite 107Bloomfield, CT 06002Tel: (860) 286-9026Fax: (860) 286-9028

CERTIFICATION

Pursuant to Practice Book §§ 10-12 through 10-17, and 11-1, this 18th day of October 2010, theundersigned hereby certifies that this document complies with all format provisions and furthercertifies that a copy of the foregoing was delivered in hand/via first class united states mail/viafacsimile to all counsel of record: Russell Zentner, Esq., Office of the State’s Attorney- Part A, OneCourt Street, Middletown, CT 06457-3374 (860) 343-6427.

Aaron J. Romano, Esq.Comm. of Superior Court

AARON J. ROMANO, P.C.BY: Aaron J. Romano, EsquireJuris No.: 41582945 Wintonbury Avenue, Suite 107Bloomfield, CT 06002Tel: (860) 286-9026 Attorney for DEFENDANT___________________________________DOCKET NO. : SUPERIOR COURT OF CONNECTICUT

STATE OF CONNECTICUT : JUDICIAL DISTRICT

v. : OF MIDDLESEX

: OCTOBER 18, 2010Defendant.

DEFENDANT’S REPLY BRIEF IN SUPPORT OFDEFENDANT’S MOTION IN LIMINE TO PRECLUDE

ADMISSION OF CELLULAR TELEPHONE TOWER “PING” EVIDENCE


States Constitution, Article First, Sections Eight, Nine, and Ten of the Connecticut Constitution, and

State v. Porter, 241 Conn. 57 (1997), the defendant, by and through undersigned

counsel, hereby respectfully submits his reply brief in response to the State’s Memorandum of Law

in Opposition to Defendant’s Motion in Limine to Preclude Admission of Cellular Tower “Ping”

Evidence.

The State’s memorandum unequivocally demonstrates its inability to grasp the purpose of

2

the Porter hearing as well as the flawed logic upon which it attempts to base a baseless conclusion.

The Defendant will address the State’s contentions in the order each is presented in the State’s

memorandum.

The State devotes a large portion of its brief expounding on the qualifications of its expert

witnesses. The Defendant does not dispute Mr. Pellegrino’s academic qualifications, despite the

noticeable absence of any higher level degrees in mathematics and/or the sciences. The Defendant

merely demonstrated through basic cross-examination that Mr. Pellegrino’s generalizations regarding

cell tower routing were substantially undermined by his inability to answer any specific questions

relating to the cell towers and cellular handset in question. Porter Hearing N.T. 10/4/10 at pp. 87-92.

Further, Mr. Pellegrino agreed with the Defendant’s ultimate conclusion, and the very purpose in

holding the Porter hearing- that signal strength, which determines the cell tower that is utilized, is

not itself determined by proximity of the cell tower to the caller. Id. at p 104. The State’s

proposition ignores the realistic possibility that the nearest available cell tower may be five, ten or

twenty miles away from the cell phone that is placing the call. The State’s postulation only works

when a nearby tower is available. The availability of towers depends on a multitude of factors, as

articulated by the defendant, and beyond volume, which is the only factor aside from distance that

State concedes impacts tower selection.

Additionally, the State argues fervently for the validity of the Verizon records. This is a

wasted effort as the Defendant has never put the accuracy of the business records in dispute, and

moreover, the business records themselves have no bearing on the Porter hearing. The purpose of

having a Porter hearing was to address the scientific validity of the tracking method proposed by the

State, not the record keeping abilities of a telecommunications carrier. All the billing records do

3

demonstrate is that the State only considered the location of a single cell phone tower in deriving the

unsubstantiated conclusion that the location of the cell tower equated to the location of the

defendant.

The observation that the State deems “most important,” the “principle of cellular

itself...generally accepted within the wireless industry” has nothing to do with the evidence that the

State is attempting to admit. The principle to which the State is referring, as clearly stated in its

question is: “The principal [sic] you described where I make a phone call and the, describe again the

principal [sic], I make a phone call, the tower picks it up, the tower, strong signals pick it up and then

it goes to the switching center and it looks for the number that I’m trying to call. That whole

procedure you described, is that a principal [sic] that’s generally accepted within the wireless

industry?” Porter Hearing N.T. 10/4/10 at p. 26. The “principle” that the State’s Attorney describes

is the principle of cellular communication itself- which is completely distinct from the cellular

tracking that the State posits. There is no debate regarding how a cell phone works as a

communication device. The Porter hearing was necessary to determine if the cellular phone, a

communication device, could be used as a tracking device in the manner alleged by the State. The

answer is that as proposed by the State, it cannot. Even the principle as articulated, however

inarticulately posed by the State’s Attorney, describes cellular tower selection as dependent on signal

strength, which is not dependent solely on distance between the caller and the tower. The State

cannot simply ignore the postulations of its own expert and substitute “distance” for “signal strength”

to arrive at a conclusion that is presumptively illogical.

The State aptly notes that use of a particular tower indicates that a caller was within the

coverage area of that tower. State’s Brief at p. 8. However, as demonstrated by defense expert

4

Manfred Schenk, the coverage area of a tower can be twenty eight hundred square miles. Porter

Hearing N.T. 10/4/10 at pp. 129-130. That is hardly an exact location, irrespective of the State’s

misguided attempts to attribute any measure of definitiveness to its assertion. The State presents Mr.

Schenk lack of familiarity with the specific towers at issue as some sort of failing on Mr. Schenk’s

part. State’s Brief at p. 12. As an initial matter, such a supposition avoids the legal reality that it is

the State’s burden to prove the validity of the methodology it is employing, not the Defendant’s

burden to prove why the methodology is technology unsound, although it is apparent in this case.

That State even admits, through the testimony of its expert, that an exact location cannot be

determined based on the location of a cell tower. Porter Hearing N.T. 10/4/10 at p. 74. Yet, the State

wants to draw its ultimate conclusion, that the defendant’s location can be determined based on a

methodology that it admits is not accurate.

The State would like to scorn the importance of distinguishing between GPS and the cellular

tracking “method” proposed by the State, however the essence of the argument is found in the

comparison of accuracy. GPS is now required in cellular phones because cellular phones without

GPS chips remain simply communication devices. With the addition of GPS they are now activated

as location devices. Barring a GPS chip, there is no possible way that a cell phone, as a

communication instrument, can function as a reliable tracking device. If this were not the case, there

would be no reason for the FCC to require that cellular phone be equipped with GPS chips for the

purpose of emergency location. Porter Hearing N.T. 10/4/10 at p. 83.

Accepting, but not at all conceding, that the location of cellular towers could accurately

indicate location, a trilateralization calculation would have to be done. This requires three cellular

towers and was not performed by the State. Porter Hearing N.T. 10/4/10 at p. 123. The State’s

5

proposition is that single cellular tower correlates with a defendant’s location. The methodology

proposed by the State is not accepted, not within the cell phone community and not by the United

States Government. It should not now be accepted by this Court.

The testimony by Verizon representative Alexis Eon had absolutely no relevance to the Porter

hearing. Porter Hearing N.T. 10/4/10 at pp. 146-185. As previously articulated, the purpose of the

Porter hearing is to examine scientific methodologies, not to review billing records. Ms. Eon is a

keeper of records; she has no background in pattern recognition and/or cellular technology. The

question is not one of “interpreting call detail records,” State’s Brief at p. 10, but whether a

defendant’s location can be construed from the location of a cell tower.

The State’s argument regarding Mr. Schenk’s testimony reveals exactly how confused the

State is as to the very use of cellular devices as tracking implements. The State postulates: “Mr.

Schenk testified, in much detail, regarding the theory and principle behind both GPS and E911

technology. Both technologies are inapposite to this Hearing because the State is not asserting that

either technology was used.” State’s Brief at p. 11. This is precisely what is so problematic with the

evidence that the State is attempting to introduce. If the State had based its conclusion of the

defendant’s proximity to the home invasion on either GPS and/or E911 technology, there would not

be a debate regarding “junk science.” Instead, the State hazards, without any scientific basis, that

tower location and handset location are interchangeable variables within the schema of cellular

communication.

Finally and in a desperate effort to discredit the defense expert, the State implies that Mr.

Schenk’s lack of affiliation with either Verizon wireless and/or CALEA represents a weakness.

State’s Brief at p. 11. Rather, Mr. Schenk is a pattern recognition scientist, with degrees in higher

6

education, trained to work for the military on trident nuclear submarines and NASA on the Apollo

lunar lander. Porter Hearing N.T. 10/4/10 at pp. 112-113. As the Defendant noted in his brief, the

only context that attempts to use this sort of tracking system is criminal prosecutions. All other

commercial industries and scientific communities eschew this practice because it is unreliable in

practice and unsound in technique. Even police departments employ GPS technology with their own

employees. Any affiliation with either organization would only serve to detract from Mr. Schenk’s

credibility and objective assessment of the offered evidence.

Although the State may consider “most pertinently” that Mr. Schenk “conceded” that a

particular cell tower was used to connect a particular call. Similarly, the State considers it pertinent

that Mr. Schenk testified that billing records have to accurate to bill customers properly. State’s Brief

at p. 12. This characterization perverts the truth-seeking mission of Porter hearing. It is irrelevant

whether a call was “re-routed” or billing records are accurate. The focus of the inquiry is not

whether a specific tower was used; the proper focus of the inquiry is whether the State can

legitimately assert that the use of that particular tower correlates with the defendant’s location.

The State begins to touch upon the actual issue towards the end of its brief when it comments

that the importance of cell tower location is that the caller must be in the “coverage range” of the

tower. State’s Brief at p, 14. However, as explained by Mr. Schenk, the coverage area of a given

tower can be twenty eight hundred square miles. Porter Hearing N.T. 10/4/10 at pp. 129-130.

Attempting to pinpoint a location within that radius cannot be done with the methodology proposed

by the State.

The State’s conclusion that the cell phone user traveled from the Middletown area, to the

Hartford area, back to the Middletown area, over to the Middlefield area and then back to the

7

Middletown area, State’s Brief at p. 17, cannot possibly be substantiated by the methodology the

State proposes. A linear progression cannot be inferred from the location of individual cell towers.

As defense counsel elicited from the State’s expert, an individual could be traveling straight in one

direction, with cell phone calls registering from one tower, enter a valley in which a different tower

is used, exit the valley, at which point the initial tower is again utilized. It might conceivably seem

as though that person made a u-turn if only cell tower location was examined, when in fact that

person had never altered course. Porter Hearing N.T. 10/4/10 at p. 97.

The State may be able to establish that a specific cell tower was used at a specific time. What

they have not been able to establish is that there is any scientific evidence that equates tower location

with caller location. Until the State can satisfy the first prong of the Porter test, that the evidence is

scientifically valid, the question of relevance is moot.

To address the State’s contention that this is an issue of weight, not admissibility, the

Defendant takes this opportunity to reiterate the argument he raised in his Motion in Limine.

Accepting – thus far without any foundation – that a cell tower location equals a cell phone’s

location raises a question of admissibility, not just one of weight. One can say that a scale is

inaccurate, and the Court could respond, “That goes to weight rather than admissibility, counsel”

[the pun was inadvertent], but if someone attempts to weigh himself by standing on a hay stack, his

opinion of his weight should not be admitted since the haystack was not created for the purpose of

weighing people. In the latter scenario, presumably the Court asks: “Can you explain to me how

your standing on a haystack allows you to form an opinion about how much you weigh?”

The State would present the Court with a bald conclusion regarding location without ever

delving into how this conclusion was obtained. The cell towers were not manufactured to act as

8

surveillance tools. The State has been unable demonstrate how they are able to now be used as such

with any measure of scientific validity.

RESPECTFULLY SUBMITTEDthis 18 day of October, 2010 BY THE DEFENDANTth

By_________________________________Aaron J. Romano, Esq. Juris No. 41582945 Wintonbury Avenue, Suite 107Bloomfield, CT 06002Tel: (860) 286-9026Fax: (860) 286-9028

CERTIFICATION

Pursuant to Practice Book §§ 10-12 through 10-17, and 11-1, this 18th day of October 2010, theundersigned hereby certifies that this document complies with all format provisions and furthercertifies that a copy of the foregoing was delivered in hand/via first class united states mail/viafacsimile to all counsel of record: Russell Zentner, Esq., Office of the State’s Attorney- Part A, OneCourt Street, Middletown, CT 06457-3374 (860) 343-6427.

Aaron J. Romano, Esq.Comm. of Superior Court

UNITED STATES DISTRICT COURTNORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

UNITED STATES OF AMERICA ) ) No. 10 CR 747-2,3

vs. ) Judge Joan Humphrey Lefkow )

JOSE ANTONIO LOPEZ and )ANTONIO EVANS )

GOVERNMENT’S CONSOLIDATED MOTIONS IN LIMINE

The UNITED STATES OF AMERICA, by its attorney, GARY S. SHAPIRO, Acting

United States Attorney for the Northern District of Illinois, respectfully submits its

consolidated motions in limine seeking pretrial rulings on the admissibility of certain

evidence and the propriety of certain arguments, as set forth below. The indictment in this

case charges defendants Jose Antonio Lopez and Antonio Evans with conspiracy to commit

kidnapping, in violation of Title 18, United States Code, Section 1201(c) (Count One) and

kidnapping, in violation of Title 18, United States Code, Section 1201(a)(1). More

specifically, the indictment alleges that beginning no early than in or about early April 2010,

and continuing until at least April 25, 2010, in Cicero and Chicago, in the Northern District

of Illinois, defendants, along with co-defendant Jerry Zambrano, did conspire with each other

and others to knowingly and unlawfully seize, confine, kidnap, abduct, carry away, and hold

for ransom or reward another person, namely Minor A, and to use means, facilities, and

instrumentalities of interstate commerce in committing and in furtherance of the offense,

namely, telephones operated on the interstate network of AT&T, a telephone service

provider.

Case: 1:10-cr-00747 Document #: 97 Filed: 07/25/12 Page 1 of 11 PageID #:193

I. Admissibility of Cell Site Evidence and Analysis

At trial, the government intends to introduce cell site records for phones connected

to Lopez, Evans, and co-defendant Jerry Zambrano, who has pleaded guilty and is expected

to be a government witness at trial. Cell site records reflect the location of the cell tower and

antenna face used at the start and end of a cellular telephone call. These records are

commonly used by law enforcement to analyze the past use of a cellular phone and thereby

obtain information about a subject’s whereabouts, activities, and patterns of behavior.

The government’s position is that the cell site records themselves are business records

under Federal Rule of Evidence 803(6). In the event the parties do not stipulate to that fact,

the government intends to call a witness from Sprint Nextel to testify that the cell site records

produced to the government during the investigation are business records kept in the ordinary

course of Sprint Nextel’s business, that the records are made at or near the time of the

activity, and that Sprint Nextel’s regular business practice was to keep the records.

After admitting the cell site records themselves into evidence, the government intends

to call FBI Special Agent Joseph Raschke as a witness. Agent Raschke is expected to testify

about exhibits that he prepared based in part on the cell site records. These exhibits are maps

reflecting: (1) the location of cell towers used by phones connected to Lopez, Evans, and

Zambrano during various points of the conspiracy; (2) a comparison of the locations of some

of the cell towers to other locations relevant to this case, including the location of the

kidnapping, the location of where the victim was held, and the location of pay phones used

to make ransom calls; and (3) estimated ranges around the cell towers used by phones

2


connected to Lopez, Evans, and Zambrano. Drafts of the maps created during the

investigation in this case have been produced to the defendants. Finalized versions to be

used as trial exhibits will be turned over when completed.

With respect to Agent Raschke’s map containing information about the location of

cell towers, Agent Raschke will testify that, in creating the maps, he used the cell site records

themselves and Google Maps or a similar program to determine the locations of the cell

towers that phones connected to Lopez, Evans, and Zambrano used during the kidnapping.

In addition to illustrating the location of the cell towers, some of the charts will also compare

the cell tower locations to other locations relevant to this case, such as the location of pay

phones used for ransom calls, the location of the kidnapping itself, or the location where

evidence presented at trial will show that Minor A was held captive.

This portion of Agent Raschke’s testimony is not expert testimony because Agent

Raschke is merely creating maps with locations of cell towers compared to other locations.

Such testimony would be appropriate lay opinion testimony. See United States v. Lee, No.

07-3985, 07-4642, 07-4687, 2009 WL 2219273, at *6 (3d Cir. July 27, 2009) (allowing lay

person to testify about map prepared using GPS program because program “relies on a tool

used in everyday life, and requires no specialized training or knowledge.”); United States v.

Thompson, No. 09-4154, 2010 WL 3529305, at 858 (3d Cir. Sept. 13, 2010). Indeed, some

court have taken judicial notice that the mapping tools are accurate. See United States v.

Stewart, No. 3:07cr51, 2007 WL 2437514, at *1 n.2 (E.D. Va. Aug. 22, 2007); United States

3


v. Lente, 759 F. Supp. 2d 1305, 1317 n.7 (D.N.M. 2010), reversed on other grounds, 647

F.3d 1021 (10th Cir. 2011).

For some of the maps, however, Agent Raschke will estimate the ranges of the cell

towers used by phones connected to Lopez, Evans, and Zambrano. Agent Raschke is

expected to testify, based on his training and experience in cell site and cellular record

analysis, that he can estimate ranges around cellular towers based on the proximity of the

towers to other towers in the area. Agent Raschke’s maps will illustrate that, on a number

of occasions, pay phones used to make ransom calls were within the estimated ranges of cell

towers phones connected to Lopez and Zambrano used to make or receive calls shortly

before or after ransom calls.

Because part of Agent Raschke’s testimony that involves expert testimony under Rule

704, on the date of the filing of this motion, the government has provided defense counsel

with a letter disclosing Agent Raschke as an expert witness on cellular record analysis. A

copy of the letter provided to defense counsel is attached as Exhibit A. This is appropriate

expert testimony under Federal Rule of Evidence 702 because: (1) Agent Raschke will be

testifying based on specialized knowledge and his training and experience; (2) the testimony

will be technical and will aid the trier of fact to determine issues in this case, namely, various

defendants’ locations at or around the time of ransom calls and other significant events; (3)

the analysis is based on sufficient facts or data, namely the cell site records; (4) the testimony

is the product of reliable principles and methods, as will be established by Agent’s Raschke’s

testimony; and (5) Agent Raschke has reliably applied the principles and methods to the facts

4


of the case. Accordingly, the government seeks a pre-trial ruling as to the admissibility of

the exhibits that Agent Raschke is preparing and as to his testimony.

II. Motion to Bar Evidence or Argument Related to Penalties Faced by Defendants

The government respectfully moves this Court to preclude defendants from

introducing evidence, making argument, or otherwise mentioning the potential penalties

faced by defendants if convicted. The Seventh Circuit has unequivocally held that “arguing

punishment to a jury is taboo.” See, e.g., United States v. Richardson, 130 F.3d 765, 778 (7th

Cir. 1997) vacated in part on other grounds, 526 U.S. 813 (1999); United States v. Lewis,

110 F.3d 417, 422 (7th Cir. 1997); see also United States v. McKenzie, 922 F.2d 1323, 1327

(7th Cir. 1991) (“[t]he sixth amendment requires that a jury determine questions of guilt or

innocence; punishment is the province of the Court.”).

Argument or evidence concerning punishment is improper because the law is well-

settled that the potential penalty faced by a defendant is irrelevant to the jury’s determination

of guilt or innocence. See, e.g., Shannon v. United States, 512 U.S. 573, 579 (1994) (“It is

well established that when a jury has no sentencing function, it should be admonished to

‘reach its verdict without regard to what sentence might be imposed.’”) (quoting United

States v. Rogers, 422 U.S. 35, 40 (1975)); United States v. Frank, 956 F.2d 872, 879 (9th Cir.

1991) (“It has long been the law that it is inappropriate for a jury to consider or be informed

of the consequences of their verdict”); United States v. McCracken, 488 F.2d 406, 423 (5th

Cir. 1974) (“Except where a special statutory provision mandates a jury role in assessment

or determination of penalty, the punishment provided by law for offenses charged is a matter

5


exclusively for the court and should not be considered by the jury in arriving at a verdict as

to guilt or innocence.”). Mention of the potential penalties faced by defendants would serve

only the improper purpose of jury nullification. See, e.g., United States v. Reagan, 694 F.2d

1075, 1080 (7th Cir. 1982) (“‘The authorities are unequivocal in holding that presenting

information to the jury about possible sentencing is prejudicial.’” (quoting United States v.

Greer, 620 F.2d 1383, 1384 (10th Cir. 1980)).

The government is not suggesting through this motion that evidence of penalties faced

by co-defendant Jerry Zambrano should be barred in the event Zambrano testifies as a

government witness. Instead, the government seeks an order precluding defense counsel

from mentioning or introducing evidence regarding any of the range of penalties defendants

may face if convicted.

III. Right of Minor A and his Father Not to Be Excluded From Trial

Pursuant to 18 U.S.C. § 3771(a)(3), the government moves this Court for an order

allowing both Minor A and his father to be present during the trial in this case. Federal Rule

of Evidence 615 provides that at a party’s request, courts must order witnesses excluded so

that they cannot hear other witnesses’ testimony. Rule 615 recognizes numerous exceptions,

including for “a person authorized by statute to be present.” Fed.R.Evid. 615(d). Section

3771(a)(3) provides a statutory basis for Minor A and his father to be present at trial in this

case. That statute states that crime victims have “[t]he right not to be excluded from any such

public court proceeding, unless the court, after receiving clear and convincing evidence,

determines that testimony by the victim would be materially altered if the victim heard other

6


testimony at that proceeding.” In addition, § 3771(b)(1) provides that “[b]efore making a

determination described in subsection (a)(3), the court shall make every effort to permit the

fullest attendance possible by the victim and shall consider reasonable alternatives to the

exclusion of the victim from the criminal proceeding. The reasons for any decision denying

relief under this chapter shall be clearly stated on the record.”

In this case, the government expects both Minor A and his father to testify at trial.

Although the government has not specifically asked them whether they would like to be

present for all aspects of the trial, the government believes that they will want to be present

for the trial in its entirety because Minor A and his father have attended nearly every hearing

for this case thus far, even routine status hearings.

Moreover, with respect to concerns about Minor A or his father potentially changing

their testimony, they are both expected to be among the government’s first witnesses at the

trial. Moreover, they have also both been interviewed by the government on numerous

occasions about the kidnapping and ransom calls, and the government has provided reports

of those interviews to the defendants. Thus, no showing can be made by clear and

convincing evidence that the testimony of Minor A or his father would be materially altered

if they heard other testimony at trial.

Finally, there are no constitutional concerns with allowing Minor A and his father to

be present for the trial because there is no due process right to have witnesses excluded. As

the Seventh Circuit has held:

7


A refusal to exclude (“separate”) witnesses until they testify is not a denial ofdue process. Separation or sequestration of witnesses, on which see Gedersv. United States, 425 U.S. 80, 87 (1976); Fed.R.Evid. 615, is a long-established and well-recognized measure designed to increase the likelihoodthat testimony will be candid. But the due process clause does not incorporateevery refinement of legal procedure designed to make trials fairer or moreaccurate–not even one hallowed by time. See, e.g., Watson v. Camp, 848 F.2d89 (7th Cir. 1988). It forbids only egregious departures (illustrated byWalberg v. Israel, 766 F.2d 1071 (7th Cir. 1985)) from accepted standards oflegal justice. Hill v. United States, 368 U.S. 424, 428 (1962).

Bell v. Duckworth, 861 F.2d 169, 170 (7th Cir. 1988); see also United States v. Edwards, 526

F.3d 747, 758 (11th Cir. 2008) (refusing to exclude victim-witness based on 18 U.S.C. §

3771(a)(3), noting that a “-criminal defendant has no constitutional right to exclude witnesses

from the courtroom.”).

Accordingly, the government seeks a ruling from the Court that Minor A and his

father can be present during all parts of the trial they wish to attend.

IV. Allegations of Witness Wrongdoing Not Involving Dishonesty

The government has produced to defense counsel, and will continue to produce to

defense counsel as necessary, materials setting forth potential impeachment material for some

witnesses in this case. In an abundance of caution, the government has produced various

materials that do not constitute admissible impeachment, including criminal history reports

of some government witnesses. Of course, the mere fact that the government has produced

to the defense a fact or an allegation does not render it admissible at trial. By this motion,

the government moves this Court to preclude defense counsel from introducing at trial,

8


during the cross-examination of government witnesses, improper impeachment questioning

or evidence.

A. Arrests

The government will disclose to defense counsel the rap sheets and criminal histories

of witnesses it may call at trial (and it will continue to do so if that list changes). Some of

these witnesses have been arrested on prior occasions. Evidence of a prior arrest should be

precluded in accordance with the strictures of Rules 609 and 608. Federal Rule of Evidence

609 allows for the admission of a witness’s felony conviction for purposes of impeachment

under certain specified circumstances. Under the Rule, “[f]or the purpose of attacking the

credibility of a witness, evidence that a witness other than an accused has been convicted of

a crime shall be admitted, subject to Rule 403, if the crime was punishable by death or

imprisonment in excess of one year under the law under which the witness was convicted .

. .” Fed. R. Evid. 609. By its express terms, Rule 609 permits evidence only of convictions,

not arrests.

Nor are arrests admissible under Fed. R. Evid. 608(b). Rule 608(b) provides that

specific instances of past conduct may be inquired into on cross-examination if and only if

they concern the witness’s character for truthfulness.1 Courts have not construed Rule 608(b)

to permit cross-examination on prior arrests absent special facts bearing on the witness’s

character for the specific trait of truthfulness. By way of example, one of the witnesses the

1 Even then, these past instances may not be proved by extrinsic evidence. See Fed. R. Evid. 608(b).

9


government intends to call at trial has a prior arrest for retail theft. The fact of the arrest, and

any questions about the conduct underlying the arrest, should be barred because retail theft

is not a crime involving dishonesty. See, e.g., Clarett v. Roberts, 657 F.3d 664, 669 (7th Cir.

2011) (“Retail theft lacks an element of an act of dishonesty that is common to crimes of this

type. As such, ‘[t]his circuit generally does not count retail theft as a crime of dishonesty’

for purposes of Rule 609(a)(2).”) (quoting Kunz v. DeFelice, 538 F.3d 667, 675 (7th Cir.

2008)).

Thus, unless defendants can demonstrate that the conduct underlying any arrest

implicates a witness’s character for truthfulness (an inquiry that should be done outside the

presence of the jury), defendants should be precluded from inquiring into the conduct.

B. Other “Bad Acts” By the Witnesses

To the extent they are known, the government has disclosed, and will continue to

disclose to defense counsel, “bad acts” by its witnesses known to the government. Under

Rules 611 and 608(b), defendants are permitted to inquire into specific bad acts of the

witness only if these acts are probative of truthfulness. So the Court can make the

appropriate rulings, the government requests that defense counsel identify the prior conduct

about which they intend to cross-examine a given witness and demonstrate how that conduct

is probative of truthfulness. This should occur outside the presence of the jury and before a

witness testifies at trial, to prevent jury nullification and/or undue prejudice.

10


CONCLUSION

For the foregoing reasons, the government respectfully requests that the above

motions in limine be granted.

Respectfully submitted,

GARY S. SHAPIROActing United States Attorney

By: /s/ Jason A. Yonan JASON A. YONANSAMUEL B. COLEAssistant U.S. Attorneys219 S. Dearborn Street, 5th FloorChicago, Illinois 60604(312) 353-5300

Dated: July 25, 2012

11



EASTERN DIVISION

UNITED STATES OF AMERICA ) ) No. 10 CR 747-3

vs. ) Judge Joan Humphrey Lefkow )

ANTONIO EVANS )

REPLY IN SUPPORT OF GOVERNMENT’S CONSOLIDATED MOTIONS IN LIMINE

The UNITED STATES OF AMERICA, by its attorney, GARY S. SHAPIRO, Acting

United States Attorney for the Northern District of Illinois, hereby presents this reply brief

in support of the Government’s Consolidated Motions in limine. Defendant presents

objections to two of the four motions in limine that the government has filed. Specifically,

defendant objects to the government’s motions related to the admission of cell site evidence

and analysis and allegations of witness wrongdoing not involving dishonesty.

I. Motion to Admit Cell Site Evidence and Analysis

The government filed a motion in limine regarding the admission of cell site evidence

and analysis for defendant as well as co-defendants Jose Lopez and Jerry Zambrano. Since

the government filed its motion, a change of plea date was scheduled for Lopez, and it does

not appear he is going to trial in this case. The vast majority of cell site evidence and

analysis the government intended to admit in this case related to the use of cellular phones

by Lopez and Zambrano. If Lopez is not a defendant at trial, the government does not intend

to seek admission of most of that evidence in a trial solely against defendant, although it


reserves the right to do so based on how the trial progresses. Instead, the cell site evidence

and analysis the government seeks to admit against defendant is discussed below.

First, as the government stated in its motion, much of FBI Special Agent Joseph

Raschke’s testimony will be not be expert testimony at all. In particular, as part of his

testimony, Agent Raschke will review maps he created that contain information about the

location of cell towers and other locations relevant to this case. One such chart will contain

the location of the victim’s home near where the kidnapping took place compared to the

location of a cell tower that defendant’s phone used shortly before the kidnapping. A draft

of that chart has been produced to the defendant. In connection with the chart, Agent

Raschke is expected to testify that the cell tower defendant’s phone used is the cell tower

closest to the location of the kidnapping. That is not based on any expert testimony or

specialized knowledge, but instead based on Agent Raschke’s review of the cell site records

produced in this case and on a review of other cell towers in the area. Agent Raschke may

also include in his chart the distance between the tower and the location of the kidnapping,

which again is not based not on any specialized knowledge but instead on the mapping

program tools he used to create the map.

Agent Raschke will also testify concerning maps illustrating cell phone towers that

defendant’s phone used on April 23, 2010, and April 24, 2010, compared to other locations

in this case, including the location where the victim was held and a cell tower that a Cricket

phone used for a ransom call from that location. Drafts of such charts have been produced

to the defendant. Again, this is not expert testimony.

2


Only three parts of Agent Raschke’s testimony regarding the charts is expert

testimony based on specialized knowledge. First, Agent Raschke will testify that a cell

phone uses a cell tower that: (1) is in the vicinity of where the cell phone is being used; and

(2) operates on the particular cell phone network of the cell phone service provider. Contrary

to defendant’s claim, Agent Raschke will not testify that a cell phone always uses the tower

closest to it. Instead, as the government previously disclosed, Agent Raschke will testify that

a number of factors determine what cell tower a cell phone uses, including the location and

proximity of the tower and network traffic.

Second, Agent Raschke will also estimate coverage ranges around cell towers that

defendant’s phone used. As the government disclosed to defendant, Agent Raschke

estimated network coverage ranges around the cells towers based on comparing the distance

between other towers in the area and using his training and experience on network operation,

network coverage, and network set-up, which is detailed below. Agent Raschke’s

estimations have been produced to the defendant as part of many of the charts that the

government has turned over.

Specifically, with respect to the maps regarding the location of where the victim was

held, the government intends to show that, during the time period relevant to this case,

defendant’s phone primarily used two cell towers near the location where the victim was

held. Agent Raschke is expected to testify that the location where the kidnapping victim was

held lies in the coverage overlap area between these two towers. Agent Raschke is expected

3


to testify that a cellular phone will often use two different cell towers when the location in

which the phone is used lies in an area where the towers overlap in coverage.

Third, Agent Raschke is expected to testify that the calls from defendant’s phone, and

the call from the Cricket cell phone, could have come from the location where the victim was

held ransom in this case. This testimony is based entirely on the charts already produced

which include the location of the cell towers, the estimated tower ranges, and the location

where the victim was held. So, the government has already fully disclosed the substance of

Agent Raschke’s testimony and his methodology and defendant’s objections to the amount

of the government’s disclosures should be overruled.

To the extent defendant objects to Agent Raschke’s testimony as unreliable, such

objection should be overruled as well. “To determine reliability, the court should consider

the proposed expert’s full range of experience and training, as well as the methodology used

to arrive at a particular conclusion.” United States v. Pansier, 576 F.3d 726, 737 (7th Cir.

2009). Agent Raschke’s experience in cellular phone analysis and investigation is extensive.

His curriculum vitae, which was provided to the defendant, shows that:

* Agent Raschke has received over 350 total hours of instruction in the use ofcellular phones in investigations, including:

-- One week of FBI Training in 2009 related to cellular historical and realtime analysis;

-- Two weeks of training in 2009 regarding cellular telephone networktheory in emerging technology support;

-- One week of training in 2009 with FBI wireless intercept trackingteam/cellular technology training, which included in-person training

4


from engineers from cellular telephone providers such as Sprint/Nextel,Verizon, and AT&T;

-- Training at a wireless telecommunications working group in April2012, which included in-person training from cellular telephoneproviders such as Verizon, U.S. Cellular, and T-Mobile;

-- One week of FBI training in 2012 regarding advanced cellularhistorical and real time analysis.

* Agent Raschke has instructed approximately 700 law enforcement officersfrom various agencies in basic techniques for utilizing cellular phones in lawenforcement investigations, including the Chicago Police Department, CookCounty State’s Attorney’s Office, FBI Chicago Division, and other suburbanpolice departments.

* Agent Raschke has been qualified as an expert witness in historical cell siteanalysis on four occasions in the Cook County Circuit Court in September2010, May 2011, November 2011, and February 2012.

Contrary to defendant’s argument, Agent Raschke is more than qualified enough to

provide the testimony detailed above. Agent Raschke’s curriculum vitae shows his extensive

experience, training, and expertise in historical cell site analysis and investigation.

The government has also set forth the methodology Agent Raschke used for

determining those portions of his testimony that can be construed as expert testimony, and

that methodology is reliable. Indeed, Agent Raschke’s methodology is similar to that

deemed acceptable in United States v. Benford, No. 09 CR 86, 2010 WL 2346305, (N.D. Ind.

June 8, 2010). The court in Benford analyzed many of the same issues relevant to this case.

Specifically, the court allowed testimony and charts about a “coverage area” of a cell tower.

The witness in Benford “created a map with a number of circles representing the approximate

locations where Benford’s cell phone was used. [The witness] testified that in order for a cell

5


phone to connect with a cell site, it would have to be within the cell site’s coverage area.”

Id. at *3. The government seeks to have Agent Raschke provide similar testimony in this

case. The court in Benford found that such testimony was sufficiently relevant and reliable

under Daubert. Id. at *4.

Finally, there can also be no dispute that Agent Raschke’s testimony and charts are

relevant. His testimony and charts will be relevant to determining defendant’s whereabouts

during the kidnapping and ransom in this case and will also corroborate testimony expected

from other government witnesses about defendant’s actions and whereabouts.

II. Allegations of Witness Wrongdoing Not Involving Dishonesty

Defendant also objects to portions of the government’s motion seeking to preclude

improper impeachment related to bad acts by government witnesses under Federal Rules of

Evidence 608(b) and 611. In his response, defendant states that he does intend to question

one potential government witness about the fact that he was a drug dealer. Defendant asserts

that such testimony is relevant to the witness’ bias and motive to testify against defendant.

6


Without knowing more about defendant’s reasoning for presenting this testimony, the

government is unable to determine whether it would object to this line of questioning.

Accordingly, the government submits that, before engaging in this questioning, defendant

should have to identify outside the presence of the jury the prior conduct he intends to

explore on cross-examination and demonstrate how that conduct is probative of matters

relating to bias or motive.


GARY S. SHAPIROActing United States Attorney

By: /s/ Jason A. Yonan JASON A. YONANSAMUEL B. COLEAssistant U.S. Attorneys219 South Dearborn StreetChicago, Illinois 60604(312) 353-5300

Dated: August 6, 2012

7


IN THE UNITED STATES DISTRICT COURTFOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

UNITED STATES OF AMERICA, ))

Plaintiff, ))

v. ) No. 10 CR 747) Judge Joan H. Lefkow

JERRY ZAMBRANO, et al., )(ANTONIO EVANS) )

)Defendant. )

DEFENDANT EVANS’ RESPONSE TO THE GOVERNMENT’S CONSOLIDATED MOTIONS

IN LIMINE AND REQUEST FOR A DAUBERT HEARING

Defendant, ANTONIO EVANS, by and through his attorneys, PATRICK W. BLEGEN

and DANIEL A. RUFO, respectfully submits the following responses to the government’s

consolidated motions in limine (Docket No. 97) and requests a Daubert hearing regarding the

admissibility of historical cell site data and cell tower range estimates.

I. Admissibility of Cell Site Evidence and Analysis

The government’s motion in limine states that it intends to introduce historical cell site

records reflecting the location of cell towers and antennas used during certain cellular phone

calls. The government also intends to call FBI Special Agent Joseph Raschke as an expert

witness to testify regarding exhibits he prepared based on the historical cell site records. Id.

Specifically, the government expects Agent Raschke’s exhibits to reflect: (1) the location of the

cell towers used by certain individuals involved in this case; (2) a comparison of the locations of

certain cell towers to other locations the government believes are relevant to this case; and (3)

estimated ranges of certain cell towers utilized by phones connected to certain individuals

involved in this case. Id.


1The government’s disclosure letter is attached hereto as Exhibit A.

2

The defense objects to the admission of records related to historical cell site information

and to Agent Raschke’s testimony. Defendant submits that the government has provided

insufficient detail of its expert testimony under Federal Rule of Criminal Procedure 16(a)(1)(G).

And, the government has not established that its proposed expert testimony meets the strictures

of Federal Rule of Evidence 702 or Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 589

(1993). As such, Defendant requests a Daubert hearing prior to the admission of testimony

related to cell site information and estimated ranges.

The government has provided the defense with an expert disclosure letter detailing Agent

Raschke’s testimony.1 The letter states that Agent Raschke will identify the location of cell

towers used by certain individuals in this case, and their relation to other locations the

government believes are relevant. Agent Raschke will also testify “based on his training and

experience, about why a cellular phone may use one or more towers during the duration of a

particular call, including because of things like the proximity of the tower and the level of use of

towers in the area.” Id. Furthermore, Agent Raschke will provide testimony “that he estimated

the ranges around the cell towers based on his training and experience performing cell site

historical analysis.” (Exhibit A, p. 2). The letter states that Agent Raschke’s estimated ranges

“are based on the proximity of the towers to other towers in the area, and the estimated network

range for each tower.” Id. No other detail regarding the relevance of the location of the cell

towers or of the methodology or reasoning for the estimated cell tower range is provided.

Federal Rule of Criminal Procedure 16(a)(1)(G) requires the government to provide a

summary of any expert testimony it intends to use and must describe the witness’s opinions, the


2The government’s tendered discovery includes charts created by Agent Raschke illustrating the estimated ranges ofcertain cell towers. The defense assumes that these charts constitute Agent Raschke’s opinion on the estimated range of thetowers. No methodology is provided, however, as to how these estimates were reached.

3

bases and reasons for those opinions, and the witness’s qualifications. While the government has

given a list of subjects about which Agent Raschke will testify, it has not met the requirements of

Rule 16. First, the government has not provided the defense with certain of Agent Raschke’s

opinions, for instance, why a particular phone may use one or more towers during a particular

call.2 The letter merely states that Agent Raschke will testify about the topic, but omits any

expert opinion. Second, and more critically, the government has provided no bases or reasons

for Agent Raschke’s expert testimony regarding the estimated ranges of cell towers. The

government has merely stated that Agent Raschke is capable of estimating ranges, and described

that ranges are based on certain factors. No reasoning is found anywhere in the government’s

letter. The defense submits, therefore, that the letter cannot be considered a proper expert

disclosure as it lacks the required information under Rule 16.

The government’s motion in limine regarding Agent Raschke’s testimony is similarly

lacking in detail. This lack of detail in the government’s disclosure and motion runs afoul of

Federal Rule of Evidence 702 and the Supreme Court’s pronouncements in Daubert. Federal

Rule of Evidence 702 provides that an expert “may testify in the form of an opinion or

otherwise” if: (1) the expert’s knowledge will aid the trier of fact; (2) if the testimony is based on

sufficient facts or data; (3) if the testimony is the product of reliable principles and methods; and

(4) the expert has reliably applied the principles and methods to the facts of the case. The

government has not established that Agent Raschke’s testimony meets these requirements. As

noted above, the government has not so much as provided the methodology for Agent Raschke’s


4

opinions, let alone whether such methodology has been reliably applied to the facts of this case.

Without such information, this Court cannot determine that Agent Raschke’s testimony is

admissible and the government’s motion in limine should be denied.

Furthermore, the government’s proposed testimony does not meet the requirements of

Daubert. In Daubert, the Supreme Court held that district courts are the gatekeepers to the

admissibility of scientific evidence under Rule 702. Daubert v. Merrell Dow Pharms., Inc., 509

U.S. 579, 597 (1993). The Court required that such scientific evidence be both relevant and

reliable. Id. This gatekeeping responsibility, as well as the relevance and reliability

requirements, were subsequently extended to all expert testimony in Kumho Tire Co., Ltd. v.

Carmichael, 526 U.S. 137, 150 (1999).

Beginning first with the testimony regarding the locations of cell towers and their

relation to purportedly relevant locations, it appears that the government has made the

assumption that a cell phone call must necessarily utilize the nearest tower and that the

individual making the call must therefore be within a certain geographic range. But the

government has provided no basis or methodology for this theory. Without providing any

support, the location of cell phone towers, especially in comparison to purported relevant

locations, is irrelevant. The government cannot simply admit evidence regarding the cell phone

tower used during a certain call and leave the jury with the inference that the tower used is the

tower nearest to the phone. Rather, the government must demonstrate that this is, in fact, how

cell phones work. Nothing in its disclosure letter or motion in limine provides any detail

regarding how the evidence is relevant or reliable. Rather, the evidence is highly prejudicial

because the jury will intuitively assume that the nearest tower is the tower used by a cell phone.


3Since receiving the government’s expert disclosure, counsel’s research has not uncovered a circuit courtcase in which the admission of historical cell site data, along with the government’s theory that cell phone callsalways utilize the nearest cell tower, was held to meet Daubert standards. Furthermore, the defense has found nocircuit court case stating that estimating cell tower ranges meets Daubert standards. Counsel have uncovered districtcourt cases, including United States v. Benford, 2010 WL 2346305 (N.D. Ind. June 8, 2010), in which similarevidence was held admissible. But, Benford appears to utilize a different methodology than the government hashere.

Counsel have researched these issues and have also been in contact with an expert in the field of historicalcell site data and have learned that the government’s theories are unsupportable. Counsel have learned that cellphones do not necessarily utilize the nearest cell tower and that the actual determination of which cell tower is usedis complex and hinges on a multitude of factors. Furthermore, counsel have learned that the government’s charted

5

The government has also provided no methodology for Agent Raschke’s estimate ranges

of cell towers. In Daubert, the Supreme Court laid out non-exhaustive general criteria for

assessing the reliability and validity of an expert’s testimony including whether the expert’s

methodology in question can or has been tested, whether it has been subjected to peer review and

publication, the methodology’s known or potential error rate and the existence and maintenance

of standards controlling its operation, and whether the methodology has attracted widespread

acceptance within a relevant scientific community. Daubert, 509 U.S. at 593-4. By not detailing

any methodology that Agent Raschke will employ, this Court can make no finding as to whether

the methodology is reliable.

The government has only stated that Agent Raschke can estimate cell tower ranges based

on his experience and training. For the above reasons, such an assertion is insufficient. This

Court should deny the government’s motion in limine seeking pre-trial determination as to the

admissibility of Agent Raschke’s testimony and his exhibits.

In light of the above, the Defense requests that Agent Raschke’s historical cell site data

be precluded from admission and that Agent Raschke be prohibited from testifying.

Alternatively, the defense requests a Daubert hearing on the issue of the admissibility of

historical cell site data and estimated ranges, as the testimony is neither reliable nor relevant.3


cell tower ranges, purportedly setting geographic boundaries for the utilization of cell site towers are unsupported byfact and do not rest on sound methodology.

6

II. Motion to Bar Evidence or Argument Related to Penalties Faced by Defendants

The defense does not intend to make any argument regarding the potential penalties faced

by Defendant. However, as the government has noted, it is proper for the defense to elicit

evidence of penalties faced by any cooperating government witnesses.

III. Right of Minor A and his Father Not to Be Excluded From Trial

At this time, the defense has no objection to the presence of Minor A and his father

during the trial. However, the defense submits that a blanket pre-trial ruling permitting those

individuals to attend any part of the trial they wish is premature. The defense would request that

the Court permit the defense to object or seek to exclude Minor A or his father should an issue

regarding their presence arise; i.e., should a risk arise that either Minor A or his father’s

testimony would be materially altered if the individuals heard each other’s testimony at the trial.

18 U.S.C. §3771(a)(3).

IV. Allegations of Witness Wrongdoing Not Involving Dishonesty

The government requests that the Court preclude the defense from introducing at trial any

improper impeachment or evidence, including evidence of prior arrests or evidence of other “bad

acts” not probative of truthfulness. The defense does not intend to engage in any improper

questioning or elicit improper evidence. Moreover, the defense does not intend to use any

witness’s arrest history or other “bad acts” in an improper manner under Rule 608(b).

However, the defense does intend to question Jerry Zambrano, the government’s

cooperating witness and co-defendant, about the fact that he is a drug dealer. Such evidence is

relevant and probative for several reasons unrelated to Rule 608(b), including Zambrano’s bias


7

against Evans and his motive to testify. While the defense does not wish to fully divulge the

details of its defense to the charges, it should suffice to say that evidence of drug dealing

between Zambrano and Defendant Evans is relevant to show why the two individuals were in

communication with one another aside from their alleged participation in a kidnapping.

Furthermore, Zambrano has claimed in statements to the FBI that Evans stole a large quantity of

marijuana from him. The fact that Zambrano possessed a large quantity of marijuana will reveal

to the jury that Zambrano was a drug dealer. But more importantly, evidence of such an incident

is relevant to demonstrate Zambrano’s bias as a witness and his motivation to implicate Evans in

a kidnapping. As the Seventh Circuit has long said, “[b]ias is always relevant, and parties should

be granted reasonable latitude in cross-examining target witnesses.” United States v. Manske,

186 F.3d 770, 777 (7th Cir. 1999) quoting United States v. Frankenthal, 582 F.2d 1102, 1106 (7th

Cir. 1978).

Zambrano’s drug dealing is also admissible as “reverse” 404(b) evidence. While Rule

404(b) is generally used to show a defendant’s prior bad acts for proof of something other than a

defendant’s propensity to commit a crime, a defendant can seek to admit evidence of a witness’s

crime if it tends to negate the defendant’s guilt. United States v. Seals, 419 F.3d 600, 606 (7th

Cir. 2005) citing United States v. Della Rose, 403 F.3d 891, 901 (7th Cir. 2005). Furthermore,

“reverse” 404(b) evidence is held to a lower standard than normal 404(b) evidence because there

is no risk of prejudice to a defendant. Id. citing United States v. Stevens 935 F.2d 1380, 1404 (3rd

Cir. 1991). Under 404(b), evidence of Zambrano’s drug dealing is admissible to show his

motive to testify, his knowledge of Defendant, and the reason for communications between

Zambrano and Evans. The defense submits, therefore, that it should be permitted to explore the


4The defense does not intend to argue that Zambrano is not to be believed simply because he is a drugdealer. Such an argument would be counter-productive as the evidence of Zambrano’s drug dealing will also revealthat Evans was involved with drugs.

8

drug dealing history of Zambrano. Such evidence is relevant and is not barred by Rule 608(b),

404(b) or any other Rule of Evidence.4


s/ Patrick W. Blegen PATRICK W. BLEGEN, One of theAttorneys for Defendant, Antonio Evans.

BLEGEN & GARVEY53 West Jackson Boulevard, Suite 1437Chicago, Illinois 60604(312) 957-0100


CERTIFICATE OF SERVICE

I hereby certify that foregoing was served on August 3, 2012, in accordance withFed.R.Crim.P.49, Fed.R.Civ.P.5, LR 5.5, and the General Order on Electronic Case Filing (ECF)pursuant to the district court’s system as to ECF filers.

s/ Patrick W. Blegen BLEGEN & GARVEY53 West Jackson Boulevard, Suite 1437Chicago, Illinois 60604(312) 957-0100


EXHIBIT A

Case: 1:10-cr-00747 Document #: 111-1 Filed: 08/03/12 Page 1 of 2 PageID #:289

EXHIBIT A

Case: 1:10-cr-00747 Document #: 111-1 Filed: 08/03/12 Page 2 of 2 PageID #:290


EASTERN DIVISION

UNITED STATES OF AMERICA )))

vs. ) Case No. 10 CR 747-3) Judge Joan H. Lefkow)

ANTONIO EVANS )

OPINION AND ORDER

This matter is before the court on the government’s motion in limine to admit cell site

evidence and analysis through the testimony of Special Agent Joseph Raschke. (Dkt. #97.) On

August 17, 2011, defendant Antonio Evans and two co-defendants were charged with conspiracy

to kidnap in violation of 18 U.S.C. § 1201(c) (Count I) and kidnapping in violation of 18 U.S.C.

§ 1201(a)(1) (Count II).1 (Dkt. #41.) The kidnapping allegedly took place on April 23 and 24,

2010. The government proposes to call Special Agent Raschke to testify about the operation of

cellular networks and how to use historical cell site data to determine the general location of a

cell phone at the time of a particular call. Applying a theory called “granulization,” Special

Agent Raschke proposes to testify that calls placed from Evans’s cell phone during the course of

the conspiracy could have come from the building where the victim was held for ransom.

On August 21 and 23, 2012, this court held an evidentiary hearing pursuant to Federal

Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.

Ct. 2786, 125 L. Ed. 2d 469 (1993), to determine whether the government’s proposed evidence

1 The two co-defendants, Jerry Zambrano and Jose Antonio Lopez, pleaded guilty on April 27,2012 and August 7, 2012 respectively. (See Dkt. #95, #115.)


and analysis are admissible. After the hearing, Evans moved for disclosure of expert evidence

under Federal Rule of Criminal Procedure 16. (Dkt. #122.) For the reasons set forth herein, the

government’s motion in limine (dkt. #97) will be granted in part and denied in part and Evans’s

motion (dkt. #122) will be denied as moot.

LEGAL STANDARD

The admission of lay witness testimony is governed by Federal Rule of Evidence 701,

which limits lay opinion testimony to that which is (1) rationally based on the witness’s

perception; (2) helpful to clearly understanding the witness’s testimony or to determining a fact

in issue; and (3) not based on scientific, technical, or other specialized knowledge within the

scope of Rule 702. Fed. R. Evid. 701. The admission of expert opinion testimony is governed

by Federal Rule of Evidence 702 and Daubert. See Bielskis v. Louisville Ladder, Inc., 663 F.3d

887, 893 (7th Cir. 2011). Rule 702 states that a witness who is qualified as an expert by

knowledge, skill experience, training or education may testify in the form of opinion or

otherwise provided that “(1) 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; (2) the

testimony is based on sufficient facts or data; (3) the testimony is the product of reliable

principles and methods; and

(4) the expert has reliably applied the principles and methods to the facts of the case.” Fed. R.

Evid. 702. To admit expert testimony under this rule, the court must determine that (1) the

witness is qualified; (2) the expert’s methodology is scientifically reliable; and (3) the testimony

will assist the trier of fact to understand the evidence or to determine a fact in issue. Myers v. Ill.

Cent. R.R. Co., 629 F.3d 639, 644 (7th Cir. 2010).

2


In Daubert the United States Supreme Court set out four factors the court may consider

when assessing the reliability of an expert’s methodology, including (1) whether the theory is

based on scientific or other specialized knowledge that has been or can be tested; (2) whether the

theory has been subjected to peer review; (3) the known or potential rate of error and the

existence of standards controlling the theory’s operation; and (4) the extent to which the theory

is generally accepted in the relevant community. Daubert, 509 U.S. at 593–94; see also Kumho

Tire Co. v. Carmichael, 526 U.S. 137, 151, 119 S. Ct. 1167, 143 L. Ed. 2d 238 (1999).

The Rule 702 inquiry “is a flexible one.” Daubert, 509 U.S. at 594. As such,

“[d]eterminations on admissibility should not supplant the adversarial process; ‘shaky’ expert

testimony may be admissible, assailable by its opponents through cross-examination.” Gayton v.

McCoy, 593 F.3d 610, 616 (7th Cir. 2010). The proponent of the testimony bears the burden of

proving that the proffered testimony meets these requirements, and the Seventh Circuit grants the

district court “wide latitude in performing its gate-keeping function.” Bielskis, 663 F.3d at 894

(internal quotation marks and citation omitted).

BACKGROUND

The government has obtained what it alleges are the call data records for the phone

registered to Evans during the time of the alleged conspiracy. The data contained in these

records includes the date and time of calls originating from Evans’s phone, the duration of each

call, and the originating and terminating cell tower (also known as cell site) used by the phone to

place the call. Using these records, Special Agent Raschke testified that he could apply the

granulization theory to estimate the general location of Evans’s phone during the time calls were

3


placed. To understand the theory of granulization it is necessary to understand how a cellular

network operates.

According to Special Agent Raschke, when a cell phone is in idle mode, it regularly

communicates with cell towers in its network. Using radio frequency waves, the phone tries to

determine which cell tower has the strongest signal. In urban areas, cell towers are often located

on top of buildings or water towers. A cell tower emits radio frequency waves in all directions,

providing cell phone coverage in a 360 degree radius around the tower. Three antennas typically

comprise each tower; each antenna covers a 120 degree area. When a cell phone places a call, it

typically connects to the tower in its network with the strongest signal. This is usually the tower

nearest to the phone, although a variety of factors including physical obstructions and

topography can determine which tower services a particular phone. Once the call reaches the

tower, this interaction is recorded by the network provider. The call then proceeds to a mobile

switching center, which may choose to reroute the call to a different tower based on network

traffic. The call may also be rerouted to a different tower if the caller changes location during

the duration of the call. These data are recorded by the network and maintained as call data

records.

To determine the location of a cell phone using the theory of granulization, Special Agent

Raschke first identifies (1) the physical location of the cell sites used by the phone during the

relevant time period; (2) the specific antenna used at each cell site; and (3) the direction of the

antenna’s coverage. He then estimates the range of each antenna’s coverage based on the

proximity of the tower to other towers in the area. This is the area in which the cell phone could

connect with the tower given the angle of the antenna and the strength of its signal. Finally,

4


using his training and experience, Special Agent Raschke predicts where the coverage area of

one tower will overlap with the coverage area of another.

Applying this methodology, Special Agent Raschke testified that he could estimate the

general location of Evans’s cell phone during an 18 minute period (from 12:54 p.m. to 1:12 p.m.)

on April 24, 2010, during which time Evans’s phone used two cell towers to place nine calls.

According to Special Agent Raschke, based on his estimate of the coverage area for each of the

antennas, the calls made from Evans’s phone could have come from the location where the

victim was held for ransom. In support, the government proposes to admit summary exhibit 6,

which is a map of the two towers used by Evans’s phone and a drawing of the estimated

coverage overlap of the two towers. The building where the victim was held falls squarely

within the coverage overlap of the two towers. (See Gov’t Summ. Ex. 6.) In addition to this

exhibit, the government also proposes to introduce maps indicating the location of cell towers

used by Evans’s phone in relation to other locations relevant to the crime (Gov’t Summ. Exs.

1–5),2 maps showing the topography of the area between the two towers indicated in summary

exhibit 6 (Gov’t Summ. Ex. 7–8), and a listing of the total number of calls placed by Evans’s

phone during the relevant time period that originated or terminated with one of the two towers

(Gov’t Summ. Ex. 9).3

2 Government summary exhibit 1 also contains a line from the location of one of the cell towersused by Evans’s phone to the location where the victim was kidnnapped, demonstrating the closeproximity of the two locations.

3 The government has also moved to admit the call data records under the business recordexception to the hearsay rule. See Fed. R. Evid. 803(6). Assuming the proper foundation is laid, theserecords are likely admissible. See United States v. Graham, 846 F. Supp. 2d. 384, 389 (D. Md. 2012)(stating that historical cell site location records are “created by cellular providers in the ordinary course ofbusiness”).

5


ANALYSIS

I. Admissibility of maps containing cell tower locations and other locations relevant tothe crime

As an initial matter, the government argues that a portion of Special Agent Raschke’s

testimony is admissible under Rule 701, specifically, his testimony concerning maps he created

indicating the location of certain cell towers used by Evans’s phone during the course of the

conspiracy in relation to other locations relevant to the crime. (See Gov’t Summ. Exs. 1–5.) The

court agrees that using Google Maps to plot these locations does not require scientific, technical,

or other specialized knowledge and that these exhibits are admissible through lay opinion

testimony under Rule 701.

The relevancy of these exhibits, however, is primarily based on the premise that a cell

phone connects to the tower in its network with the strongest signal, and the tower with the

strongest signal is usually the one closest to the cell phone at the time the call is placed.

Although this is the general rule, there are a variety of factors that determine the tower to which

a cell phone will connect. See 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, at *7 (Fall 2011) (identifying factors that affect a tower’s signal strength to include the

technical characteristics of the tower, antennas and phone, environmental and geographical

features and indoor or outdoor usage); Matthew Tart et al., Historic cell site analysis - Overview

of principles and survey methodologies, 8 DIGITAL INVESTIGATION 1, 186 (2012) (“In a perfectly

flat world with equally spaced and identical masts, a mobile phone user would generally connect

to the closest mast. In the real world, however, this is not necessarily the case.”). Indeed,

6


Special Agent Raschke himself testified that topography, physical obstructions and the signal

strength of other towers can impact whether a cell phone connects to the tower closest to it.

Lay witness testimony is admissible under Rule 701 when it is “rationally based on [a]

witness’s perception” or based on “a process of reasoning familiar in everyday life.” Fed. R.

Evid. 701 & advisory comm. notes (2000 amends.); see also United States v. Conn, 297 F.3d

548, 554 (7th Cir. 2002) (“Lay opinion testimony is admissible only to help the jury or the court

to understand the facts about which the witness is testifying and not to provide specialized

explanations or interpretations that an untrained layman could not make if perceiving the same

acts or events.” (quoting United States v. Peoples, 250 F.3d 630, 641 (8th Cir. 2001)).

Understanding how the aforementioned factors affect a cell phone’s ability to connect a

particular tower, however, cannot be said to be within the perception of the untrained layman.

Rather, this type of understanding demands “scientific, technical, or other specialized

knowledge” of cellular networks and “results from a process of reasoning which can be mastered

only by specialists in the field.” Fed. R. Evid. 701 & advisory comm. notes (2000 amends.);

Conn, 297 F.3d at 554 (“Expert opinion . . . brings to an appraisal of those facts . . . that the lay

person cannot be expected to possess.”)4 Special Agent Raschke may therefore provide lay

4 As recently explained by the Seventh Circuit,

[a] law-enforcement officer’s testimony is a lay opinion if it is limited to what he observed. . . or to other facts derived exclusively from [a] particular investigation. On the other hand,an officer testifies as an expert when he brings the wealth of his experience as [an] officerto bear on those observations and ma[kes] connections for the jury based on that specializedknowledge.

United States v. Christian, 673 F.3d 702, 709 (7th Cir. 2012) (internal quotation marks and citationsomitted); see Compania Administradora de Recuperacion de Activos Administradora de Fondos deInversion Sociedad Anonima v. Titan Int’l, Inc., 533 F.3d 555, 561 (7th Cir. 2008) (“Testimony based

(continued...)

7


opinion testimony concerning (1) the call data records obtained for Evans’s phone and (2) the

location of cell towers used by Evans’s phone in relation to other locations relevant to the crime;

but if he wishes to testify concerning (1) how cellular networks operate, i.e., the process by

which a cell phone connects to a given tower or (2) granulization theory he must first meet the

demands of Rule 702 and Daubert.5

II. Admissibility of testimony concerning how cellular networks operate and the theoryof granulization under Rule 702 and Daubert

A. Whether Special Agent Raschke is qualified to testify as an expert

Special Agent Raschke testified that he has been a member of the Federal Bureau of

Investigation for 14 years and currently serves on the agency’s Violent Crimes and Fugitive Task

Force. He has received over 350 hours of training and instruction in the use of cellular phones

and investigations and spends approximately 70 percent of his time in his current position

analyzing cell phone records. He has instructed approximately 700 officers in basic techniques

for utilizing cell phones in investigations and has been qualified as an expert in the use of

historical cell site data in five state court cases in the past two years. (See Gov’t Ex. CV.)

(...continued)solely on a person’s special training or experience is properly classified as expert testimony, and thereforeit is not admissible under Rule 701.”)

5 On this point, the court respectfully disagrees with those courts that have allowed lawenforcement officers to provide lay opinion testimony as to how cellular networks operate or the use ofcall data records to determine the location of a cell phone. See, e.g., United States v. Feliciano, 300 F.App’x. 795, 801 (11th Cir. 2008) (allowing officer to provide lay opinion testimony based on his“particularized knowledge garnered from years of experience in the field,” but relying on Tampa BayShipbuilding & Repair Co. v. Cedar Shipping Co., 320 F.3d 1213, 1223 (11th Cir. 2003) for a positionthat has been called into doubt in this district, see Chen v. Mayflower Transit, Inc., 224 F.R.D. 415, 419(N.D. Ill. 2004)); United States v. Henderson, No. CR 10-117 BDB, 2011 WL 6016477, at **4–5 (N.D.Okla. Dec. 2, 2011) (allowing agent to provide lay opinion testimony that cell phone records “identif[y]the cell tower that was nearest to the location of the cell phone at the time a particular call was made orreceived”).

8


Special Agent Raschke testified that he has received training from Sprint-Nextel on how their

cellular network operates and is familiar with the operation of this and similar networks. He also

stated that he has successfully used historical cell site data on a number of occasions to locate

people (both dead and alive) in the course of other FBI investigations.

Based on this testimony, the court is satisfied that Special Agent Raschke is qualified to

testify as an expert concerning the operation of cellular networks and granulization theory. See

United States v. Allums, No. 2:08–CR–30 TS, 2009 WL 806748, at **2–3 (D. Utah Mar. 24,

2009) (holding that FBI agent was qualified to provide expert testimony on historical cell site

analysis where he underwent two official FBI training courses on how cell technology and cell

networks function, five training courses on radio frequency theory, and was obtaining a master’s

degree in geospatial technology); see also United States v. Schaffer, 439 F. App’x. 344, 347 (5th

Cir. 2011) (finding that lower court did not err in allowing FBI agent to provide expert testimony

where agent taught courses on historical cell site analysis, his students had qualified as experts,

and he had used the technique without error on at least 100 occasions).

B. Whether Special Agent Raschke’s testimony concerning how cellularnetworks operate is admissible under Rule 702

Rule 702 instructs that when a qualified expert provides testimony regarding general

principles, without trying to apply those principles to the facts of the case, the expert’s testimony

need only (1) address a subject matter on which the factfinder can be assisted by an expert; (2)

be reliable; and (3) “fit” the facts of the case. Fed. R. Evid. 702 advisory comm. notes (2000

amends.). Here, testimony concerning how cellular networks operate would be helpful because

it would allow the jury to narrow the possible locations of Evans’s phone during the course of

the conspiracy. Although Special Agent Raschke is not an engineer and has never worked for a

9


network provider, he has received extensive training on how cellular networks operate and is in

regular contact with network engineers. He also spends a majority of his time analyzing cell site

records, which requires a thorough understanding of the networks themselves. The court

concludes that his testimony on this subject is reliable. Finally, it is undisputed that a phone

registered to Evans used certain cell towers to place a number of calls during the course of the

conspiracy and, as such, Special Agent Raschke’s testimony on this topic fits squarely within the

facts of this case.6

C. Whether Special Agent Raschke’s testimony concerning the theory ofgranulization is admissible under Rule 702

Special Agent Raschke testified that using a theory of granulization he can estimate the

range of certain cell sites based on a tower’s location to other towers. This in turn allows him to

predict the coverage overlap of two closely positioned towers. Special Agent Raschke testified

that he has used this theory numerous times in the field to locate individuals in other cases with a

zero percent rate of error. He also testified that other agents have successfully used this same

method without error. No evidence was offered, however, beyond Special Agent Raschke’s

6 Evans’s proposed expert, Manfred Schenk, contested Special Agent Raschke’s opinionregarding which cell towers get recorded in the call data records. According to Schenk, the only celltower that gets recorded is the tower that ultimately services the call (i.e., the tower assigned by themobile switching center, not the tower that the phone initially connects to before being routed to themobile switching center.) This factual disagreement goes to the weight not the admissibility of SpecialAgent Raschke’s testimony. See, e.g., Traharne v. Wayne Scott Fetzer Co., 156 F. Supp. 2d 717, 723(N.D. Ill. 2001) (“Factual inaccuracies are to be explored through cross-examination and go toward theweight and credibility of the evidence not admissibility.” (citing Walker v. Soo Line R.R. Co., 208 F.3d581, 586–89 (7th Cir. 2000)). The same is true for the line connecting the location of the kidnapping tothe cell tower used by Evans’s phone on April 23, 2010 contained in summary exhibit 1. Evans is free tosolicit on cross examination factors other than proximity that may have caused Evans’s phone to connectwith that particular tower.

10


testimony, to substantiate the FBI’s successful use of granulization theory or its rate of error in

the field.

Despite Special Agent Raschke’s assurances, the court remains unconvinced that

granulization theory is reliable. First, in determining the coverage overlap of the two towers

used by Evans’s cell phone on August 24, 2010, Special Agent Raschke assumed that Evans’s

cell phone used the towers closest to it at the time of the calls. But as previously discussed, there

are a number of factors that could have caused Evans’s phone to connect to these towers even

though another tower was closer. For example, a building could have obstructed the phone’s

access to the closest tower7 or the call could have been rerouted due to network traffic. Special

Agent Raschke acknowledged these factors but did not fully account for them in his analysis.

Rather, he relied on his training and experience to estimate the coverage overlap between the

two. Estimating the coverage area of radio frequency waves requires more than just training and

experience, however, it requires scientific calculations that take into account factors that can

affect coverage. Special Agent Raschke presented no scientific calculations and did not consider

a variety of relevant factors. Although the call data records upon which he relied are undisputed,

the link between those records and his conclusions is deficient. See United States v. Mamah,

332 F.3d 475, 478 (7th Cir. 2003) (“It is critical under Rule 702 that there be a link between the

facts or data the expert has worked with and the conclusion the expert’s testimony is intended to

7 Special Agent Raschke testified that he has driven this area many times and there are nobuildings that would obstruct cell phone access to nearby towers. It is unclear when he drove this areaand whether he drove it with the specific purpose of determining whether any such obstructions exist. Cf.Allums, 2009 WL 806748, at *1 (finding methodology reliable where agent drove around cell towersusing a cell phone from defendant’s provider and device called a “Stingray” to determine the approximaterange of coverage for each tower).

11


support. . . . The court is not obligated to admit testimony just because it is given by an expert.”

(internal citation omitted)).

Second, the granulization theory remains wholly untested by the scientific community,

while other methods of historical cell site analysis can be and have been tested by scientists.

See, e.g., Matthew Tart et al., Historic cell site analysis - Overview of principles and survey

methodologies, 8 DIGITAL INVESTIGATION 1, 193 (2012) (reviewing techniques for collecting

radio frequency data for historic cell site analysis and concluding that “[a]rea [s]urveys around

the location of interest . . . provide the most accurate and consistent method for detecting

servicing [c]ells at a location”). The Seventh Circuit has stated that “[a] very significant Daubert

factor is whether the proffered scientific theory has been subjected to the scientific method.”

Chapman v. Maytag Corp., 297 F.3d 682, 688 (7th Cir. 2002). This is because “the scrutiny of

the scientific community . . . increases the likelihood that the substantive flaws in methodology

will be detected.” Daubert, 509 U.S. at 593; see also Charles Alan Wright et al., 29 FEDERAL

PRACTICE & PROCEDURE - EVIDENCE § 6266 (1st ed.) (“[J]udicial interference with the jury’s

power to weigh [expert] evidence may be warranted where expert testimony is based on

emerging scientific theories that have not gained widespread acceptance within the scientific

community.”). Granulization theory has not been subject to scientific testing or formal peer

review and has not been generally accepted in the scientific community. These factors weigh

against a finding of reliability.

Given that multiple factors can affect the signal strength of a tower and that Special

Agent Raschke’s chosen methodology has received no scrutiny outside the law enforcement

community, the court concludes that the government has not demonstrated that testimony related

12


to the granulization theory is reliable. As such, testimony concerning this theory, along with the

estimated range of coverage for each of the towers indicated on summary exhibit 6, will be

excluded under Rule 702 and Daubert. Because summary exhibits 7 through 9 do not contain

estimated ranges of coverage, they will be admitted.

CONCLUSION AND ORDER

To summarize, the government’s motion in limine to admit cell site evidence and analysis

(dkt. #97) is granted in part and denied in part. Special Agent Raschke is qualified to provide

expert testimony concerning how cellular networks operate. Based on this testimony, summary

exhibits 1 through 5 and 7 through 9 are admissible at trial. Special Agent Raschke may not

testify concerning the theory of granulization, which the court finds to be unreliable. In addition,

the estimated coverage areas contained in summary exhibit 6 must be removed before the court

will admit this exhibit. Evans’s motion for disclosure of expert evidence under Rule 16 (dkt.

#122) is denied as moot.

Dated: August 29, 2012 Enter:___________________________ JOAN HUMPHREY LEFKOW United States District Judge

13


11 11·'2010 12:13 FAX S60 3~3 6566 SrPERI)F. (erRT GA 9 141002'008

11 i I 'I

I I

OOCKET NO. SUPERlOR CO'CRT OFFICE ~F FlE CLERK

STATE J.D. OF MIDDLESEX ZOIO NOV - I PI: 0 I

v. A T MIDDLETOWN SUPER-lOR C00RT

GEOGRAPHICAL AREA #9 NOVEMBER 1, 2010

RtrLING ON THE ADMISSIBILITY OF STATE'S CELLULAR TOWEREv(DENCE

I

PROCEDURAL HISTORY

The matter pres,:ntly before the court is the admissibility of the state's proposed cellular

II signal transmission and tower evidence C'cell-site data"). This matter arises from an alleged home

. invasion that occurred c'n September 29,2008 at 462 Main Street, Middlefield, Connecticut On

October 23,2008, was arrested in connection with this home invasion and charged

with the follo\\1ng crimes: (1) conspiracy~ (2) home invasion; (3) burglary in the first degree

badEy injury; (4) burgla::-y in the tust degree ~ at night; (5) assault in the tirst degree; (6) kidnaping

in the fIrst degree - physical injury; and (7) accessory to larceny in the second degree.

The defendant's motion in limine, dated August 23, 2010) objected to admission ofthe cell-

site data evidence alld demanded a Porter hearing. The court granted this motion and a Porter

hearing was held on October 5,2010. Both the state and the defense offered testimony afexpert

witnesses} entered exhitits, and thereafter filed briefs with the court articulating their respective

positions. These briefs are dated October] 8, 2010. Oral argument was heard by the court on

OCT.Ober 27, 2010.

j 21110 12:1.30, IIII It t'

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I iII

I

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II

DISCUSSION

The state seeks to admit data which, it contends. would reveal the general vicinity ofwhere

a ceO phone was located at a particular point in time by identifying which cell tower conummicated

with the cell phone while it was turned on.' The defendant argues that the proffered evidence is

neither reliable nor rek:ant, and that the coun, in perfonnance of its gatekeeper function must not

permit it to be presented to the jury. The state takes the contrary position, emphasizing that they

invasion, on Septembe~ 29, 2010 at 1:33 am. The state argues that this is evidence of the

defendant's general vicinity tending to disprove his alibi defense, dated July 19, 2009, wherein the

defendant claims to have been at 96 Hendricxscn Avenue, Hartford, Connecticut on the night in

question.

"[WJhether the proffered ev'idence \\,111 'assist the trier of fact' ... entails a two part inquiry:

whether the reasoning 01' methodology underlying the [scientific theory Or technique in question]

is scientifically valid ane .. _whether that reasoning or methodology properly can be applied to the

facts in issue. In other wmds, before it may be admitted, the trial judge must find that the proffered

scientific evidence is beth reliable and relevant." (Citations omitted; internal quotation marks

omined.) State v. Porter, 241 Conn. 57, 63-64, 698 A.2d 739 (1997), cert denied, Porter v.

The state ",rill attempt at lrial to prove that the target cell phone at issue belonged to the defendant.

2

i

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Connecticut, 523 U.S. 1058, 118 S. Ct. 1384, 140 L. Ed. 2d 645 (1998). The Supreme Court

adopted a non-exclusive list of factors for judges to consider in determining whether scientific

evidence should be admitted: "(1) whether it can be, and has been, tested; (2) whether the theory

or technique has been subjected to peer review and pUblication; (3) the known or potential rate of

enor, including the existence and maintenance of standards controlling the technique's operation:

and (4) whether the technique is, in fact, generally accepted in the relevant scientific community."

Id., 64.

The court also emphasized that "it is proper for trial judges to serve as gatekeepers for

scientific evidence because a relevance standard ofadmissibility inherently involves an assessment

ofthe validity ofthe proffered evidence. More specifically. if scientific evidence has no grounding

in scientific fact, but instead is based on conjecture and speculation, it cannot in any meaningful

way be relevant to resolving a disputed issue." rd., 74. "So long as the methodology underlying

a scientific opinion has tle requisite validity, the testimony derived from that methodology meets

the Daubert threshold for admissibility, even ifthe judge disagrees with the ultimate opinion arising

from that methodology, and even if there are other methodologies thal might lead 10 contrary

conclusions. Thus, a judge should admit scientific testimony when there are good grounds for [the]

expert's conclusion, even if the judge thinks that there are better grounds for some alternative

conclusion." (Emphasis in original; internal quotatior, marks omitted.) Id., 81-82.

Inthe present case, the court tinds that the state's cell-site data evidence meets the threshold

for admissibility under Purfer and must not be excluded on that basis. What this dala might reveal

about the defendant's general vicinity on September 29,2009 is relevant to this case, especially in

light of his alibi defense, Further, as explained in detail below, the state's presentation at the

3

141005:008<JrpI:R [,)F (l)CRT GA \)11 i 1)1 : 20 1 {) 12:U r.'.\ :'160 :H:J 6566

II

"Ii !j Porter hearing S\i{ti ~, •.... .f addressed the reliability factors articulated by the Supreme Cowt. I'I! II If

Alt,ltough the derellJant presented evidence that the cell-site data is dependant on a number of ! I i I factors, this alone does not render the methodology underlying such evidence unreliable or I, : I

ilrelevant. It is merely information that the jury must consider when weighing the evidence during

their deliberations.

The state's firs t witness at the Porter hearing, Gary Pellegrino, is the president of

Commt1ow Resources, a consultant for the v:ireless industry, and has over forty years ofexperience

in telecommunications, working at Bell Atlantic and Verizon Wireless, among others. R.T.

10/4/2010 p. 5. l\1r. Pellegrino also helped to develop the first standard for the Comnnmications

Assistance for Law Enforcement Act, which «interconnects switching systems with real time

infonnation to lawful a1.;.thorized agencies." R.T. 10/4/2010 p. 6

Mr. Pellegrino testified that the "mobile switching center" is the brains of the wireless

device: and that there are many "cell-sites," or towers, that communicate with the mobile switching

center. R.T. 10/412010 p. 7_ \Vhen a call is made from a ceUularphone, the system authenticates

the user and looks for the best serving tower, closest to the mobile phone by signal strength, to

cormect the caJl. R.T. 10/4/2010 p. 8. Every time a call is placed from a mobile device, a record

is created at the moment ':he caller hits the send button and again at the time the call is ended. R. T.

10/4/2010 p. 18. This record is called the "call detail record" and contains much information,

•including the target num')er, which is the Verizon phone in question, the call direction, meaning

whether it was incoming or outgoing, the date and time the call was made, the duration of the cali,

and the first and last serving cell-sites. (State's Exhibit 1). Pellegrino testified that these records

are derived from the ';autcmatic message accounting records." These are Verizon' s billing records,

4

11/.1 ,!010 12, \1'

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which are kept ill r~~l t, r. - and are their highest priority in terms of accuracy and record-keeping.

R. T. 10/4/2010 p. 2) Pellegrino further testified that the manner in which cellular telephones

comm.....'l.i;::';Jh:: with mo'Jile s·witching centers and towers, and the recoId-keeping practices he

de::.crioed, are all generally accepted m the telecommunications industry. R.T. 10/4/2010 pp. 25-26,

He stated, "Tnat's the principal of cellular in itself." R.T. 10/4/2010 p. 26.

The state also c(tlled Alexis Eon, a seventeen year employee ofVerizon WiFeless~ whose

duties include record-keeping and appearing in court on the company's behalf. Ms. Eon

corroborated the testimony given by Mr. Pellegrino v.itb regard to creation and content ofthe call

detail record and noted lhat this record is kept in the ordinary course of business. R.T. 10/4/2010

p. 147-148~ 162-169. ~:he also testified about the specific cellular phone at issue in this case.

Referencing the "subscr:.ber record'; (State's Exhibit 2), she noted the telephone number assigned

to the mobile phone at issue and pointed out that this phone was a prepaid device. RT. 10/4/201 0

pp. 150-151. Ms. Eon te;;;tified that the device in question was activated on September 9, 2008 and

turned. off on January 31,2009, RT. 10/4/2010 p.lSl. She also testified that the phone number

on the subscriber record matched the target number on the call detail record. R.I. 10/412010 p.

160, 166. Finally, Ms. Eon testified as to the locations ofcertain cellular towers, most notably that

oftower 146, which is locatedat393 Jackson Hill Road, Middlefield, Connecticut. R.T.I0/4/2010

p.180,

The court, having reviewed the credible evidence, exercises its gatekeeper function and

finds that the evidence i:; both reliable and relevant for the following reasons. The process by

which a cell tower receive:s signal, and the process by which that infoTIllation is recorded, is reliable

and constitutes the genenuly accepted practice throughout the telecommunications industry. This

5

I

,L.L ".L' .. ,il.l) L;, l-i L·U, 860 3-lJ 6566 S[PERII)R (CrRT GA 9 14I00i.(I08

methodology is the very science upon which cellular communication and billing are based. The

fact that this methodology has not received peerreview, or been studied for potential rates oferror,

is not fatal. These comiderations are only a few of many that the court must take into account

when deciding whetheno admit evidence under Porter. Further, the Supreme Court has stated that

"general acceptance in 1he relevant scientific conununity will continue to be the significant, and

often the only, issue.... [I]n many cases, its presence may alone be sufficient to admit the

evidence." (Internal quotation marks omitted.) State v. Porter, supra, 241 Conn. 84-85. Finally,

this data is relevant to tr,e extent that the call detail record indicates that the cell phone in question

was within range of a cellular tower in Middlefield, located approximately one half mile from the

site ofthe home invasion, on September 29,2010 at 1 :33 am. Accordingly, the court finds that this

evidence '\\ill assist the trier of fact.

There are no published COlUlecticut decisions on point for the issue ofwhether cell-site data

is admissible under Porrer. The court is aware, however, that this evidence has been admitted by

other judges of the Supl~rior Court. Moreover, this court's decision is in line with a number of

federal courts who hav(~ chosen to admit cell-site data evidence at trial. See. United States v.

Benford. United. States District Court for the Nor1hem District ofIndiana, No. 2:09 CR 86 (June

8, 2010, Moody, J.) (holding that cell-site evidence presented through expert testimony is

sufficiently relevant and reliable Wlder Dauberr, which was the standard adopted by the

Connecticut Supreme Court in Porter); United Stales v. Allums, United States District Court for

the District of Utah, No. 2:08 CR 30 (March 12, 2009, Stewart, J) (finding that cell-site

methodology was sufficiently reliable under Daubert, despite the fact that a number of factors,

including weather, may cause a cell tower at a much longer distance from the cal1er to pick up the

6

11:01:2010 12:1! FAX 860 313 6566 corRI GA 9srPEREIR [4]008:008

signal); United Slales v. Afendoza-Morales, United States District Court for the District ofOregon,

No. 05-98-01-RE (December 12,2007, Redden, J.) (finding that evidence regarding cell phone

tower locator systems that locate approximately where an outgoing call was made, was admissible

under Daubert).

The court acknoY'.rI.edges testimony by the defendant's expert, Manfred Schenk, which noted

that cell-site data is dependant upon a number ofvariables-wattage output of the tower, weather,

typography, anterma height-that may ultimately cause a call signal to be transferred to a tower.

R.T. 10/4/20 lOp. 126. This testimony, however, does not impact the reliability or relevance ofthe

methodology underlying cell-site evidence. These issues go to the weight ofthe evidence, and not

to its admissibility. The factors that may affect cell-site evidence are a proper topic for cross-

examination, not a grOlUlds for keeping the evidence out altogether under Porter.

III

For the foregoing reasons, the defendant's motion to exclude the cell-site evidence is

denied.

SO ORDERED

BY THE COLTRT,

~,~~ PETER EMMETT VflES!, JUDGE

()~~ L)~O\O

7

NO: CR09-630158 : SUPERIOR COURT STATE OF CONNECTICUT : JUDICIAL DISTRICT OF HARTFORD v. : AT HARTFORD, CONNECTICUT ROGEAU COLLINS : MARCH 17, 2011

BEFORE THE HONORABLE THOMAS V. O’KEEFE, JR., JUDGE

A P P E A R A N C E S : Representing the State: ATTORNEY THOMAS GARCIA Hartford State’s Attorneys Office 101 Lafayette Street Hartford, Connecticut 06106 Representing the Defendant: ATTORNEY AARON ROMANO 45 Wintonbury Avenue Suite 107 Bloomfield, Connecticut 06002 Recorded and Transcribed By: Lori Van Buren Court Recording Monitor 101 Lafayette Street Hartford, Connecticut 06106

3

ATTY. ROMANO: I’ll let you know. Thank you. 1

THE COURT: Okay. 2

ATTY. GARCIA: Should I have Jim Stephenson on 3

tap then for later on? 4

THE COURT: Well we left it where he would be on 5

call. 6

ATTY. GARCIA: Correct. I just -- 7

THE COURT: It doesn’t sound like it. 8

ATTY. ROMANO: I don’t think I’ll be able to get 9

through the later. 10

ATTY. GARCIA: Okay. So probably just --- 11

THE COURT: You anticipate a long cross if we 12

get to proceedings in front of the jury? 13

ATTY. ROMANO: For cellular matters? 14

THE COURT: Cell site -- 15

ATTY. ROMANO: Yes. Could be. It could 16

possible take us to early afternoon. 17

THE COURT: Okay. Well that’s how we’ll work 18

it, okay. 19

ATTY. GARCIA: Okay. 20

ATTY. ROMANO: Thank you, Judge. How did you -- 21

you quizzed me. You didn’t even let me open up. 22

THE COURT: I know a lot of stuff that doesn’t 23

really mean a lot. 24

ATTY. ROMANO: I brought the calendar in and 25

everything for you. 26

THE COURT: I know. All right. Recess. 27

4

(Recess.) 1

THE COURT: One of the jurors tells the clerk 2

that there’s been a death in his family and cannot 3

continue, so we’ll deal with that first. 4

ATTY. GARCIA: Certainly. 5

THE COURT: What’s the name? 6

THE CLERK: Jason Posniak, number 11. 7

THE COURT: Okay. He should be excused. 8

ATTY. GARCIA: I’m in agreement with that 9

certainly. 10

ATTY. ROMANO: Yes. 11

THE COURT: Have a seat right there. We have to 12

make a record of all the proceedings and the clerk 13

tells me there’s been some sadness in your family. 14

MR. POSNIAK: Close friend. 15

THE COURT: Okay. And we all have been through 16

these things as we get older, more of these things 17

happen and we understand that’s why we have 18

alternates, we’re going to excuse you from service on 19

the case, okay. 20

MR. POSNIAK: Appreciate that. 21

THE COURT: We’re all very sorry that this 22

happened. Time heals all wounds. 23

MR. POSNIAK: Yes. 24

THE COURT: I hope. So have a good day. Thank 25

you for your service. You can report back upstairs 26

and tell them you’re excused, okay. 27

5

MR. POSNIAK: Thank you. 1

THE COURT: If you have anything in the jury 2

room, you can go in and get it and say goodbye. 3

Thank you. Do we still have the names? 4

THE CLERK: No. Not the small pieces of paper. 5

THE COURT: Okay. Well make out some new ones 6

of the alternates, draw a lot. 7

THE CLERK: David Andrews. 8

THE COURT: Very good. All right. Let me 9

switch gears here, cell site information and it’s 10

admissibility. Offer of proof. 11

ATTY. GARCIA: The State intends to offer cell 12

site information. 13

THE COURT: All historical though? 14

ATTY. GARCIA: There will be -- 15

ATTY. ROMANO: Your Honor, if I may, the witness 16

in the courtroom so perhaps -- 17


THE COURT: If you could just step outside while 19

we make this argument? Thank you. I’m sure it’s all 20

historical cell site information. 21

ATTY. GARCIA: There are call record, call 22

detail records for three different phone numbers, 1-23

860-922-0 -- 24

THE COURT: So three numbers. 25

ATTY. GARCIA: Three different phone numbers. 26

THE COURT: Yes. 27

6

ATTY. GARCIA: One is phone number 860-922-0723, 1

the phone number associated with the decedent. 2

THE COURT: So that’s Dixon’s, yes. 3

ATTY. GARCIA: The next number would be 860-838-4

7346, that is the cell number associated with Adrian 5

Dean. 6

THE COURT: Who? 7

ATTY. GARCIA: Adrian Dean, who is the co-8

defendant to Mr. Collins. 9

THE COURT: Yes. 10

ATTY. GARCIA: And the final phone number that 11

records would be coming in on, if I can just have a 12

moment, would be 860-726-5447, which would be the 13

defendant’s phone number. 14

THE COURT: All right. So you want to -- this 15

witness will testify that these -- first I don’t know 16

if you own a number or not, but ownership of the 17

numbers? 18

ATTY. GARCIA: He will be testifying to 19

ownership as to Dean and this -- well actually with 20

respect to the Dean and Collins numbers, those are 21

both boost phone numbers. 22

THE COURT: What are they? 23

ATTY. GARCIA: They’re boost phones. They’re 24

pre-paid phones, so you’re not subscribing, you do 25

not actually have to provide your accurate identity, 26

you can provide any name you want. 27

7

THE COURT: I get it. 1

ATTY. GARCIA: So the names that are listed in 2

the subscriber history are actually Dean Adrian as 3

opposed to Adrian Dean and Casey Chapman. We’re 4

taking the witness a little out of order based on 5

scheduling. 6

THE COURT: Okay. Let’s concentrate on his -- 7

ATTY. GARCIA: I’m just trying to explain why 8

the names are the way they are. I had anticipated 9

calling Detective Kovanda first to testify to search 10

warrants that were obtained for the various numbers 11

and why. Because of some of the scheduling 12

difficulties we’ve run into, we weren’t able to get 13

him on prior to this witness, I’m confident that he 14

would be able to tie this all together. 15

THE COURT: Okay. 16

ATTY. GARCIA: So we first have the call detail 17

records, one component of course is calls that were 18

placed between numbers and the time of the call, the 19

date of the call, et cetera. 20

THE COURT: Wait a minute, calls between 21

numbers. 22

ATTY. GARCIA: Between certain numbers. 23

THE COURT: I got it. I have it. I’ve had this 24

many times before. 25

ATTY. GARCIA: Sure. 26

THE COURT: I just want to make a record, calls 27

8

between numbers, time of calls. 1

ATTY. GARCIA: Duration of calls, things of that 2

nature. 3

THE COURT: Duration of calls, and what else 4

besides time -- 5

ATTY. GARCIA: Okay. Within the records, within 6

the records it also shows the originating cell tower, 7

which would be the first tower that a call is routed 8

through as well as the last cell tower, which would 9

be the last tower that handled the particular call. 10

And I think that is the area that is the subject of 11

counsel’s request for a Porter Hearing. What I 12

expect to elicit as testimony from this witness is 13

that both Adrian Dean’s phone and the phone 14

associated with Rogeau Collins were pinging off of 15

certain towers between the hours of roughly 9 p.m. 16

and midnight on March 9th of 2009. 17

THE COURT: 9 to 12. 18

ATTY. GARCIA: Approximately 9 to midnight. 19

THE COURT: What else? 20

ATTY. GARCIA: As a component of the records or 21

what are called direct connect calls, which is 22

essentially a walkie-talkie type of feature and what 23

the record would show is that there were direct 24

connect phone calls that were transmitted through 25

particular towers that show a progression north from 26

Hartford to Bloomfield by both Dean and Collins and 27

9

then show a progression after approximately 10:30 1

p.m., 10:33 p.m. is the northern most call, and then 2

after that there is any progression of phone calls 3

that work back to Hartford. So I think it would be 4

relevant to show the movement of the individuals not 5

trying to use the records to locate them to a precise 6

address, for example 101 Lafayette Street, it is to 7

show movement and the course of the investigation, 8

just again to expand on the relevance, both co-9

defendants when confronted with the phone records 10

then acknowledged their presence in Bloomfield and 11

ultimately the defendant acknowledged his presence at 12

the crime scene at Reservoir 3, which will come in 13

through his statement that will be introduced by 14

Detective Kovanda. So this would in essence 15

corroborate some of this movement. So again, I’m not 16

trying to use it as a GPS device to locate him to a 17

specific location and specifically to locate him at 18

Reservoir 3, but simply to show the movement north 19

and then the movement south and things of that 20

nature. 21

THE COURT: What -- all right. Want to respond? 22

Let me hear, it’s your motion, right? 23

ATTY. ROMANO: Yeah. Well, you know -- 24

THE COURT: Why don’t you tell me what you 25

believe the test is for a Porter Hearing? It’s my 26

call so what standard am I using? What should -- I 27

10

got Porter right in front of me, but I want you to 1

educate me. 2

ATTY. ROMANO: Let me have a moment, Your Honor. 3

THE COURT: Okay. Same issue as the case in 4

Middletown? 5

ATTY. ROMANO: Same issue and it was a similar 6

offer of proof, I mean, the challenge here, Your 7

Honor, is number one, it hasn’t been accepted -- it 8

has not been accepted to say that someone can be 9

located at a particular area, so I’m delighted by the 10

fact that posing counsel is stating that he does not 11

intend on using this as a substitute for GPS. 12

Because often times what happens is the individual or 13

the party that wants to introduce this evidence is 14

attempting to do that. I have to concede that there 15

is a range that the cell phone communicating with the 16

tower is within the range of the tower, I have to 17

concede that. The question becomes is how the jury 18

views that, how they interpret that evidence, and the 19

problem is with the range of this cellular telephone 20

and the range of the tower, here’s the difficulty, 21

Your Honor, the way cell towers are designed -- let 22

me back up for a minute. A cellular network is 23

described as such because it is designed using cells, 24

if we can imagine that. So there are -- they could 25

be circular, they could be conical types of ranges 26

that each tower has with the antennae and the 27

11

cellular handset then communicates with those towers 1

to connect the telephone calls. Cellular networks 2

overlap. And the reason they overlap is to insure 3

that there is not a break in coverage. So the 4

cellular telephone is such -- 5

THE COURT: Can you hear me now? 6

ATTY. ROMANO: Yes. The cellular telephone is 7

essentially a substitute for a landline and in order 8

to insure that you don’t loose that landline or if we 9

look it at that way, that direct connection, it has 10

to have overlapping coverage. So the question 11

becomes and I’ll pose this -- and I can pose this to 12

the expert, if you have an individual standing in one 13

spot in the center of a circle and equally distant 14

from that individual area series of cell towers, 15

which cell tower is that handset going to choose? 16

They’re all equally distant at this point. So what 17

is the closest cell tower? Now we have a circle 18

around the individual, so if the State is going to 19

say that there’s northern movement or there’s 20

movement in one direction, that isn’t necessarily the 21

case. If you take a look at the way the cellular 22

networks are designed and how they communicate with 23

towers. I’ll give you another example. That just 24

deals with overlapping cellular networks, you can 25

have an individual who’s standing in one spot and 26

there could be several towers, let’s say four towers, 27

12

and each one is progressively distant from the other. 1

Now there are a number of different variables, I even 2

spoke to the expert briefly this morning about it and 3

he agreed with me that there are a number of 4

different variables that would affect the manner or 5

the choice of the tower with the handset. So while 6

tower number one, which may be closest, may be the 7

closest tower and we would assume that the telephone, 8

that the cellular telephone is going to communicate 9

with that one because it’s the closest one, there may 10

be an obstruction, the tower itself may have an 11

antennae or an antenna that’s focused in a different 12

direction so it’s not going to choose the closest 13

tower, so we go to the next tower. There may be 14

topography that may prevent the cellular telephone 15

from choosing that tower. We go to the third tower 16

out and there could be another variable. We can go 17

into those variables; the problem here is we cannot 18

predict movement based on that because there are too 19

many variables. And essentially what ends happening 20

is the State is saying we want to use these cell 21

tower records and without a doubt I’m telling you, 22

I’m conceding that the cellular telephone 23

communicator or it utilized that tower to connect 24

that call, but that is not the closest tower, they’re 25

not going to be able to prove it’s the closest tower. 26

And if they can’t prove it’s the closest tower and 27

13

they want to offer it to show distance or proximity 1

or show a range of movement, a leap-frogging type of 2

movement in a single direction, it’s a false premise 3

that it’s based on and that’s the problem with it. 4

If they want to show that the calls were made, fine. 5

I have no doubt that the call records or business 6

records, they should come in, the problem is the 7

confusion that the cell tower identification is going 8

to have for the jury because they’re proposing to use 9

it in that manner where they’re going to show the 10

direction going one way or the other and it’s not 11

necessarily the closest tower and it can’t 12

necessarily prove that way. The best way to do that 13

is GPS and I’ll -- the Court could probably take 14

judicial notice of this, there is no industry in the 15

world that utilizes cellular tower identification to 16

utilize or identify proximity of an individual. 17

THE COURT: Well you never know who has the hand 18

held device. 19

ATTY. ROMANO: Let’s just assume for a moment 20

that a trucking industry, okay, needs to know where 21

all their trucks are at. 22

THE COURT: Yeah. I know they use GPS. 23

ATTY. ROMANO: They’re going to use GPS. And 24

you know what, Judge, the federal government, the FCC 25

mandated that all telephones be equipped with GPS 26

because once cellular telephones became so common, 9-27

14

1-1 calls were being received and the cellular -- 1

what would happen is when you make 9-1-1 call from a 2

landline, it identifies the number and so if you’re 3

there’s a hang up, the 9-1-1 operator can go ahead, 4

call back and identify where that person is. Prior 5

to the GPS being installed on the phones mandated by 6

the FCC, calls were being made 9-1-1 calls that were 7

hang up calls and the only way to identify where that 8

person was, was using a cell tower, but the cell 9

tower alone can’t identify where that person is due 10

to the problems with identifying the range of the 11

individual to the cell tower and the proximity, there 12

is just no correlation between it. What the FCC did 13

was, they asked the industry for opinions, the 14

industry came back they said we’re not equipped to do 15

it, this was back in 2006. And after 2006, the FCC 16

mandated that all telephones be equipped with GPS. 17

Now while me all have cellular telephones, we may not 18

have a GPS option on it, so we’re not going to use 19

it, you know, you can buy a telephone and it says GPS 20

equipped so you can go ahead -- 21

THE COURT: I’m not gong to use it. 22

ATTY. ROMANO: Well, the point is that some 23

people buy those telephones, I have a Blackberry, my 24

Blackberry can go ahead, I can substitute as a GPS 25

and find out how to get to Niantic if I have a client 26

down there. 27

15

THE COURT: Yeah. I understand all that. Get 1

to the point. 2

ATTY. ROMANO: The point is, every cellular 3

telephone has GPS in it so that if there is a 9-1-1 4

call, that that individual can be identified, their 5

location can be identified within several feet even 6

though we’re not utilizing it that very moment as a 7

GPS unit. The reason being is no where, no where is 8

cellular tower technology being utilized to identify 9

proximity, its GPS. And the problem is it’s going to 10

confuse the jury, the science itself is not accepted 11

for that purpose. 12

THE COURT: How many towers are we talking about 13

as part of your offer of proof? Your argument would 14

have more weight if we were talking about one tower. 15

ATTY. GARCIA: There are going to be nine towers 16

that come into play, let me just double check, here 17

are nine towers that come into play, towers that are 18

located in Hartford and Bloomfield, I believe one is 19

located in Simsbury, Connecticut. I mean counsel has 20

raised certainly some very good questions in terms of 21

cross-examination, but we’re talking about a Porter 22

Hearing and whether the underlying science is 23

reliable in terms of the mechanics and the physics or 24

whatever field we’re dealing with in terms of 25

transmitting cell phone towers. I think that Mr. 26

Jensen will readily acknowledge what variables can be 27

16

involved, but I also -- 1

THE COURT: What are his qualifications? 2

ATTY. GARCIA: He’s employed by Sprint Nextel. 3

He is with their trial team; essentially what they do 4

is go around the country testifying in cases like 5

this. He’s been trained in the basic operation of 6

cell phones. He’s familiar with the utilization of 7

GPS for example. He also prior to this, I forget the 8

specific employer he had, but he worked with law 9

enforcement in electronic surveillance and things of 10

that nature, so he’s certainly technically familiar 11

with the area. 12

THE COURT: Okay. 13

ATTY. GARCIA: And what I expect him to testify 14

to is under normal circumstances, all things being 15

equal, what a cell phone is going to do is respond to 16

the strongest signal, which again, all things being 17

equal is the closest tower. He will readily 18

acknowledge that things such as clutter, terrain, by 19

a cell phone track of traffic may affect the tower 20

that you hit and can discuss how calls are handed out 21

from one tower to another. 22

THE COURT: Okay. 23

ATTY. GARCIA: The State’s position is the 24

science itself, that the cell phone companies are 25

relying on to conduct their business is sound; we 26

have a number of cell phone companies that were using 27

17

this nationwide. I don’t think it’s confusing at 1

all. The jury will hear that certain towers were 2

hit, it’s certainly an area that can be explored on 3

cross-examination, but I don’t think its an area 4

that’s open for the subject of a Porter Hearing and 5

the Court certainly can consider whether this has 6

been admitted in the past, or we refer to the hearing 7

in Middletown, a full Porter Hearing was held in 8

Middletown and the evidence was admitted, and I think 9

the Court can take notice of that. 10

THE COURT: How long did that take? 11

ATTY. ROMANO: Well if we’re going to go that 12

route, the Court could also take judicial notice that 13

the jury -- 14

THE COURT: I’m not taking judicial notice of 15

anything. 16

ATTY. ROMANO: In that case, the jury completely 17

-- we essentially argued the matter before the jury 18

and they completely discounted the evidence and it 19

resulted in an acquittal. So that evidence came 20

before that jury and they knew enough to complete 21

discount that -- 22

THE COURT: You know what; I’m not going -- 23

different set of facts. 24

ATTY. ROMANO: The hearing took; it might have 25

taking a whole day. 26

THE COURT: This is about the science, what did 27

18

you want to say? 1

ATTY. ROMANO: So as to whether or not the 2

evidence is scientifically valid, one of the primary 3

factors in determining the validity is whether or not 4

it’s gained general acceptance and it’s reliability. 5

There is no general acceptance here. There’s been no 6

offer of proof that is generally accepted. 7

THE COURT: It might not have general acceptance 8

in other disciplines where like you said the trucking 9

the industry, monitoring of parolees and the likely, 10

you have to know exact. It has pretty much general 11

acceptance in the Court’s though. 12

ATTY. ROMANO: And therein lies -- 13

THE COURT: As a matter of fact the federal 14

courts are even, they’re passed the question of the 15

Porter Test because of the rapid development in 16

technology, they’re struggling with how to fashion 17

procedures with regard to 4th Amendment issues and 18

people’s rights of privacy. They’re way past what 19

you’re talking about now. So it’s generally accepted 20

in the courts. And I’ve sat on cases that -- at 21

least four or five cases where this exact same 22

testimony has been allowed and I didn’t find it 23

confusing, it’s a circumstance. And you seem well 24

equipped to conduct a cross-examination. 25

ATTY. ROMANO: Barely, but if I may, Your Honor, 26

and therein lies the problem, it seems as if just 27

19

because it is done doesn’t mean that it’s right. If 1

we’re dealing with someone’s liberty, we’re dealing 2

with something a lot graver then the location of a 3

truck. We’re dealing with someone a lot more graver 4

then a location -- 5

THE COURT: You really do want to use that 6

example. 7

ATTY. ROMANO: Right. But what I’m saying -- 8

THE COURT: I’m aware of my responsibilities as 9

a Judge with regard to the -- your client’s 10

constitutional rights. 11

ATTY. ROMANO: And what I’m suggesting to the 12

Court is the evidence that comes in to demonstrate a 13

location or proximity, it has to be one that is of a 14

very high regard and I understand that you heard it 15

offered in other cases, I don’t know if attorneys 16

have proposed Porter Hearings for that every 17

evidence, I think perhaps the attorneys themselves 18

have felt as if it is at times, not done anything, or 19

who knows if they even brought it through. But if I 20

can answer to the point you inquired about how many 21

towers are going to be used. The problem with that 22

is, Your Honor, we don’t have a propagation map to 23

determine the overlapping areas of coverage to see 24

why the choice was made for those towers as opposed 25

to other towers that also had that same coverage 26

area. So to just say it’s seven towers puts the cart 27

20

before the horse. Now we’re accepting it’s those 1

seven towers that were the closest towers. I submit 2

to the Court, there are more then seven towers in the 3

area between Hartford and Bloomfield. So what we 4

have to do in making this determination for a Porter 5

Hearing is we know there must be and I’m sure the 6

gentleman from Springfield go ahead and testify, 7

they’re going to be 30, 40, 50, maybe 100 towers. So 8

the question becomes why those towers as opposed to 9

any other tower? And therein lies the problem. We 10

don’t have no propagation map that’s been turned over 11

to me during discovery, we just have what’s prepared 12

for the Court or prepared for the jury is these seven 13

towers were used and these are where those towers are 14

located, we don’t have any information about any 15

other towers anywhere else. And so an effective 16

cross-examination can’t be made because I can’t 17

demonstrate there’s a tower just a half mile away, 18

why wasn’t that tower chosen? 19

THE COURT: Okay. I don't need a response. 20


THE COURT: If there was evidence that the phone 22

associated with the defendant was pinging off a tower 23

in the Bronx, you would be urging me to allow it, 24

even if it was one tower. So this is about the 25

science, not about anything else. Motion for a 26

Porter hearing is denied. I’ll note your exception. 27

21

ATTY. ROMANO: Okay. 1

THE COURT: We ready? 2

ATTY. ROMANO: Yes, sir, Your Honor. 3

ATTY. GARCIA: The State is ready. 4

THE COURT: All right. I’ve been jumping around 5

between very complicated self-defense questions from 6

a jury, give me five minutes here and I’ll be right 7

back. 8

(Recess.) 9

ATTY. GARCIA: Could I just have a moment? 10

THE COURT: Yes. 11

ATTY. GARCIA: I just wanted to provide the 12

cautionary instruction to the witness. 13

THE COURT: Okay. Ready for jury? I guess we 14

are? 15

ATTY. ROMANO: Yes, Your Honor. And what we can 16

do when Tom wants to go ahead and introduce those 17

records, obviously my Porter motion would have 18

encompassed -- 19

THE COURT: It was denied. 20

ATTY. ROMANO: And it would have encompassed the 21

cell tower information that’s on there. 22

THE COURT: Right. 23

ATTY. ROMANO: So it’s coming in full -- 24

THE COURT: I’ll note your continuing objection. 25

ATTY. ROMANO: Yeah, I mean -- 26

THE COURT: Okay. That’s what you wanted me to 27

22

do, right? 1

ATTY. ROMANO: Well we could do it now or we 2

could kind of according to that, your ruling, I don’t 3

have any objection for them coming in under business 4

record exception. 5

THE COURT: Very good. 6

ATTY. ROMANO: However, my request would be that 7

redaction, of course, would be cell tower information 8

on there. And I guess the redaction request could be 9

made instead of we know what your ruling was on a 10

Porter Hearing, but perhaps I can make it under 4.1 11

or 4-2 or 3, which would be relevance and then the 12

confusion. 13

THE COURT: I mean I heard the argument. 14


THE COURT: Do you want to add anything to it? 16

All right. It’s denied under those sections of the 17

Connecticut Code of Evidence. 18

ATTY. ROMANO: It might be 4-3 also, Your Honor. 19

ATTY. GARCIA: I understand that there’s no 20

objection to these being marked as full exhibits 21

then. I obviously will still do the business record 22

foundation, I think, with the witness. 23

THE COURT: Okay. 24

ATTY. ROMANO: That’s what I’m getting at so 25

when we get to that juncture, my objection is noted 26

now and we don’t have to note it in the presence of 27

23

the jury. 1

THE COURT: Okay. Under 4.1 Relevance and 4.3 2

Confusion, I considered your objection and I’ll deny 3

it. All right. We’re ready for the jury. 4

ATTY. ROMANO: I’m sorry it was 4-2, 4-3, Your 5

Honor, 4-1 is the definition of relevance. 6

THE COURT: Okay. 7

ATTY. ROMANO: So it’s 4-2, 4-3. I’ll assume 8

the same ruling? 9

THE COURT: Yeah. 10

(The jury enters the courtroom.) 11

THE COURT: You can have a seat. One of the 12

jurors, a close friend had a death in the family and 13

he was upset and distracted by it and asked to be 14

excused, so I excused him. So now you see how 15

important alternates are. So that’s one thing I had 16

to deal with, I had some involvement with another 17

case next door, which took a little time and I also 18

dealt with matters in this case that I had to outside 19

your presence. Why did I tell you all that, because 20

I listen to the radio, we all listen to the radio, 21

and lately there’s be a lot of talk about state 22

workers, I’m a state worker and they don’t work that 23

hard, so I don’t want anybody sitting there thinking 24

that I start work at 11:00 every day, no, we’re 25

trying to make this easier for you, so I guess that 26

point is for my benefit. And we’re ready for the 27

24

next witness. 1

ATTY. GARCIA: Thank you, Your Honor. The State 2

calls Dan Jensen. 3

THE COURT: All right. 4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

25

D a n J e n s e n, of Overland Park, Kansas, having 1

been called as a witness, was duly sworn by the Court, and 2

testifies as follows. 3

THE COURT: All right. Just a point for the 4

jury, you might want to know what happened to Jim 5

Stephenson, well he works here in Connecticut and we 6

can bring him back and forth to fit our schedule, as 7

you know this gentleman is from Kansas and has a 8

schedule and for that reason, we’re taking him out of 9

order, okay. Is that enough of a clarification? 10


THE COURT: So we’re not done with the 12

ballistics witness, he’ll be back, but we’re going to 13

take this gentleman because he’s from Kansas. Go 14

ahead. 15

ATTY. GARCIA: Thank you, Your Honor. 16

DIRECT EXAMINATION BY ATTY. GARCIA: 17

Q Good morning, Mr. Jensen. 18

A Good morning. 19

Q By whom are you employed? 20

A Sprint Nextel. 21

Q How long have you been employed by Sprint Nextel? 22

A For about 8½ years. 23

Q And what do you do for Sprint Nextel? 24

A My official title is records custodian and we respond 25

to legal demands such as subpoenas, search warrants, and 26

court orders looking for information on either customers or 27

26

network information. And time to time I testify in court to 1

those records. 2

Q Prior to becoming employed by Sprint Nextel, who were 3

you employed by? 4

A I was a college student. 5

Q Could you describe for the jury your training and 6

experience as it relates to the field of cell phone 7

technology? 8

A My first 3½ years I spent as an electronic 9

surveillance technician working with law enforcement on real 10

time tracking and real time surveillance of cellular phones 11

and other mobile devices for emergency circumstances like 12

kidnappings, hostage situations, fugitives things like that. 13

Since then, I moved into my current position for the past 5 14

years. I’ve had approximately 200 hours in training in 15

radio frequency and the technologies that both the Sprint 16

and the Nextel network uses. I’ve also had an additional 90 17

to 100 hours in what’s called Sprint University, it’s an 18

internal training program for employees on a variety of 19

subjects from again radio frequency to our networks how 20

records are stored. I’ve also had throughout those 8½ years 21

on the job training in all those subjects as well. 22

Q Based on your training and experience are you 23

familiar with the way cell phone calls are transmitted 24

throughout both the Sprint network and other cell phone 25

networks? 26

A Yes. 27

27

Q Could you describe to the jury what happens when a 1

cell phone call is actually placed? 2

A Well once your phone has been powered up and it 3

registers with our network and has been authenticated on our 4

network to be able to make and receive calls, making sure 5

that your bill is paid, your phone would then go into just 6

an idle mode where it’s just listening to one cell site on a 7

frequency much like your car radio listens to a frequency. 8

And it’s just listening to for any incoming calls or an 9

incoming text message or any updates that the phone may 10

need. At that point, the phone also has the ability to make 11

an outgoing call, the user can dial in a phone number or go 12

through their contact list, find someone and hit either a 13

talk or a send button, which sends an origination message to 14

the cell site or the cell tower, that the phone is currently 15

listening on, basically starting the call set up process. 16

At that point the call would either go off network to 17

another wireless or landline carrier, or it may stay on the 18

Sprint or the Nextel network if they’re calling another one 19

of our customers. At that point, that person has the option 20

to either pick up the phone or the phone call may go to a 21

voice mail. If they pick up the phone, obviously a 22

connection is established and conversation can begin. And 23

the same as going back for an incoming call. 24

Q When those calls are transmitted through the system, 25

is a record being kept of those calls? 26

A Yes. 27

28

Q And how is that record kept? 1

A That’s stored electronically and it’s made at the 2

time of the call at one of our phone switches. 3

Q And are those records that you then use for purposes 4

of billing or deducting minutes from a subscriber’s account? 5

A Yes. 6

Q You talked about the phone idling and seeking out a 7

signal, where would that signal be coming from? 8

A From nearby cell sites or cell towers. 9

Q And would it be safe to say that you have a number of 10

cell sites scattered around the country? 11

A Yes. We do. 12

Q In terms of reaching out and picking up a signal, 13

what determines what signal is picked up by a particular 14

cell phone? 15

A The overall received signal strength that phone is 16

receiving at that time. 17

Q And typically all things being equal, would the 18

strongest signal normally be the closest tower? 19

A That’s what I would expect, yes. 20

Q Are there other variables that can influence what 21

tower may be hit? 22

A Yes. 23

Q And what are those variables? 24

A Topography, the lay of the land, whether it’s very 25

flat land or hilly or mountainous region could effect it, as 26

well as what we call clutter, and that would be any other 27

29

objects such as buildings or manmade structures, tress, 1

foliage, anything else that may obstruct or interfere or 2

absorb that energy. 3

Q So just to clarify, if there were an obstruction that 4

was blocking the signal of say what could be the closest 5

tower, then another signal might be picked up, would that be 6

fair to say? 7

A Yes. 8

Q So it would be a different tower? 9

A Yes. It could. 10

Q Would the volume of cell phone traffic in a 11

particular area also possibly play a role? 12

A Yes. It could. 13

Q Would that be typically more common in densely 14

populated urban areas? 15

A Yes. 16

ATTY. GARCIA: If I may approach? 17

THE COURT: Yes. 18

BY ATTY. GARCIA: 19

Q Mr. Jensen, I’m showing you what’s been marked as 20

State's Exhibit 74 through 80, do you recognize those 21

documents, sir? 22

A Yes. I do. 23

Q And what do you recognize those to be? 24

A All the documents except for the last one are 25

business records make by Sprint Nextel, including call 26

detail records as well as subscriber information for some of 27

30

our customers and a large list of the locations of our cell 1

sites. The very last document labeled 80 is a summary of a 2

few of our cell sites from that large cell site list. 3

ATTY. GARCIA: At this point I’m going to offer 4

74 through 79 as full exhibits. 5

THE COURT: I’ll note the previous discussion on 6

the matter, they are full exhibits. We didn’t tell 7

the jury whose name was picked to become a regular 8

member of the jury, did we? 9

ATTY. GARCIA: I don’t believe we did. 10

THE COURT: What was the name? 11

THE CLERK: David Andrews. 12

THE COURT: Mr. Andrews. All right. You’re a 13

regular member of the jury now. 14

BY ATTY. GARCIA: 15

Q Mr. Jensen, I’m going to give you what’s been marked 16

as State's Exhibit 79 full exhibit and State’s Exhibit 80 17

for Identification, first with respect to Exhibit 79, could 18

you explain what that exhibit is? 19

A This is a 101 page document. This includes the 20

locations of the cell sites for the New York market and 21

these are the cell sites off of the Nextel network. Even 22

though we’re one company, we still maintain two separate 23

networks so I want to be clear that we’re talking about the 24

Nextel network for this list. 25

Q And you indicated that State's Exhibit 80 for 26

Identification is a summary taken from that list? 27

31

A Yes. It’s just a small amount of the cell sites from 1

the larger list. 2

Q Have you had a chance to compare State’s Exhibit 80 3

with State’s Exhibit 79? 4

A Yes. 5

Q And based on your review is the information contained 6

in State’s Exhibit 80 an accurate reproduction of the 7

information with respect to each tower -- the selected 8

towers as it appears in State’s Exhibit 79? 9

A Yes. It is. 10

ATTY. GARCIA: I’d offer that as a full exhibit 11

as well then. 12

THE COURT: All right. And it’s a full exhibit. 13

BY ATTY. GARCIA: 14

Q With respect to State's Exhibit 80, and I’ll return 15

it to you, there’s obviously an abundance of information 16

there, we could just go across that exhibit, there’s a 17

column labeled LAC, what does that refer to? 18

A LAC stands for location, area code, and this just 19

gives me a location within the United States where that’s 20

located at. 21

Q The next column is CID, what does that column 22

indicate? 23

A It stands for cell ID, and this narrows down to the 24

exact cell site and sector for the cell site for that call. 25

Q So that would be a particular tower that is used? 26

A Yes. 27

32

Q And the next column over is labeled Site, what is 1

that, that’s an alpha numeric code? 2

A Yes. This is a site ID for that particular cell 3

site. 4

Q The fourth column is labeled SW-name, what does that 5

indicate? 6

A It stands for switch name and this will tell me which 7

phone switch is responsible for that cell site. 8

Q And how does a phone switch relate to the cell tower 9

itself? 10

A A phone switch is another piece of network hardware 11

that helps deliver calls to and from subscribers. If you 12

were to maybe think about an old movie or TV show where you 13

see someone working at a phone company and they’re switching 14

wires in and out of all those holes, that’s what switching 15

is, it’s switching one customer line to another customer 16

line to help connect the call. The switch is responsible 17

for recording call detail records, incoming and outgoing 18

calls, it helps process the calls through the network as 19

well as it also keeps the recordings of voicemails and other 20

data. 21

Q Moving again to the right, the next column is labeled 22

latitude, what’s described there? 23

A This is the latitude of the GPS antenna at the actual 24

cell site. 25

Q And to the right of that is longitude? 26

A And this would be the longitude for that GPS antenna 27

33

at that cell site. 1

Q So it would be fair to say when you combine those two 2

columns, that that gives the GPS coordinates for the 3

particular tower? 4

A Yes. 5

Q Next column over is labeled ACG, what does that 6

indicate? 7

A Access controller gateway, and this is the gateway 8

code for that particular cell site. 9

Q So if there’s a particular code, it would then 10

correspond to that tower? 11

A Yes. 12

Q The column labeled sector? 13

A This will tell me which sector for identifying, if 14

you wish to identify down to the sector or the side of that 15

cell site, this will tell you which sector you’re looking 16

at. 17

Q Does each sector then cover a different area range? 18

A For the most part, yes. 19

Q And finally the column labeled UANC, what does that 20

indicate? 21

A That stands for urban area network code, and this is 22

just a code that tells me a general location within the 23

United States of where that cell site is located. 24

Q Now I’m going to show you what’s been marked as 25

State's Exhibit 74, could you describe what that record is, 26

sir? 27

34

A These are call detail records for a number that uses 1

the Sprint network. 2

Q And what is the number associated with those call 3

detail records? 4

A 860-922-0723. 5

Q And again, as with State’s Exhibit 80, there are a 6

number of columns, if I can just walk you through them. The 7

first column is labeled calling number, what does that 8

indicate? 9

A This is the phone number that’s actually placing the 10

phone call. 11

Q The column over is called number? 12

A This is the phone number that was called for that 13

particular call. 14

Q Within that -- if there is a prefix, for example, 15

prefix 11 before a particular number, what does that 16

indicate? 17

A That would indicate that this was an incoming call to 18

this Sprint subscriber’s phone number and that that call was 19

routed or sent into that customer’s voice mail. 20

Q Moving one more column to the right, we have a column 21

labeled dialed digits, how does that differ from called 22

number, if at all? 23

A Typically the two columns would match up as far as 24

the digits in each field, but this is what the -- our 25

network interpreted as being punched into the handset to 26

actually start the call. 27

35

Q One column over, column labeled MR number, what does 1

that indicate? 2

A This stands for mobile role number and this will tell 3

me whether this Sprint subscriber was placing an outgoing 4

phone call or was receiving an incoming phone call. 5

Q And the column labeled start date? 6

A This is the date and the time that the call came on 7

to the Sprint network and it always listed in military time. 8

Q It’s listed in military time and is that hours, 9

minutes, and seconds? 10

A Yes. 11

Q Next column over is end date, what is indicated 12

there? 13

A Just the date and the time that the call ended. 14

Q And again in military time, hours, minutes, and 15

seconds? 16

A Yes. It is. 17

Q The duration of the call, how is that recorded? 18

A In the next column duration and this is always listed 19

in seconds. 20

Q The repoll number on the next column? 21

A Repoll number will tell me which phone switch 22

actually handled that phone call. 23

Q Next column over, first cell? 24

A This will tell me which cell site or cell tower was 25

used when the call first started or first came on to the 26

Sprint network. 27

36

Q And finally the last column labeled last cell, what 1

does that indicate? 2

A This will tell me which cell tower was being used 3

when the call ended from our network. 4

Q Now showing you what’s been marked as State's Exhibit 5

75, what is that exhibit, sir? 6

A This is subscriber information for one of our 7

customers as well as forty pages of call detail records. 8

Q Are those records in a somewhat different format? 9

A Yes. They are. 10

Q And what’s the reason for that? 11

A The records we just talked about in the 7-page 12

document were records from the Sprint phone network. These 13

records would show call detail records, but from the Nextel 14

network. I mentioned earlier even though we’re one company, 15

we still maintain two separate cellular networks. The two 16

networks use different technologies and have different 17

reporting systems, so while it is the same type of 18

information, it’s just in a little different format. 19

Q Can you tell from those records, if that’s what’s 20

known as a boost phone? 21

A Yes. It is. 22

Q First of all, what is a boost phone? 23

A Boost phones, which is owned by Sprint Nextel, are 24

all prepaid phones, meaning you pay up front before your 25

phone is activated. 26

Q So there’s not a contract with Sprint Nextel, it’s 27

37

merely buy minutes and then have them deducted as you use 1

them? 2

A That’s correct. 3

Q Would a boost phone account -- withdrawn. With a 4

subscriber account, do you require that the subscriber 5

provide identifying information and billing address? 6

A For a postpaid account, yes, we do. 7

Q Okay. How about for a prepaid account like boost? 8

A No. We do not. 9

Q So if a person wishes to have their address and name 10

listed in the record, it would be? 11

A Yes. 12

Q And if not, what would the default be? 13

A For the address, the default address would be a PO 14

Box in Irvine, California. 15

Q Are there any steps taken to verify identity when 16

someone activates a boost phone? 17

A No. 18

Q What is the name associated, the subscriber name 19

associated with this particular record? 20

A Adrian Dean. 21

Q And what would be the boost phone number associated 22

with that record? 23

A 860-838-7346. 24

Q Sir, I’m going to refer you now in State's Exhibit 25

75, page 18? 26

A Okay. 27

38

Q And I’m also going to refer you -- withdrawn. The 1

bottom line of page 18, is there a connection shown between 2

the number ending in 7346 and the number you previously 3

testified to 0723? 4

A Yes. 5

Q And what is the time and date that that call was 6

placed? 7

A The call was placed at 8:57 p.m. on March 9th of 8

2009. 9

Q If I can ask you now to turn to page 19? 10

A Okay. 11

Q The first five calls listed there, what numbers are 12

involved in those five calls? 13

A 860-838-7346 and phone number 860-922-0723. 14

Q And what would the time range be beginning with the 15

first call to the last of those five calls? 16

A 9:07 p.m. and the last call at 9:16 p.m. 17

Q And if we could move down to the middle of the page, 18

about the middle of the page, a call labeled at 9:44 p.m., 19

what numbers were connected there? 20

A 860-838-7346 and 860-922-0723. 21

Q And who would have initiated that particular -- which 22

number would have initiated that particular call? 23

A 860-922-0723. 24

Q Turning your attention now to State's Exhibit 74 on 25

page 4 of 7? 26

A Okay. 27

39

A If I could refer you to the bottom of the page, three 1

lines from the bottom of the page, code 11 is indicated? 2

A Yes. 3

Q That’s the prefix before the number. I believe you 4

previously testified that this is an indication that that 5

call then would go to voicemail? 6

A Yes. 7

Q Looking at State's Exhibit 74, from that point all - 8

on the call that was connected to voicemail at 22:06:10, 9

from there on, did all the calls to that number go to 10

voicemail? 11

A Yes. 12

Q Referring to the front page of State's Exhibit 75, 13

there’s a number that appears toward the bottom of the page 14

under the heading of UFMI, effective date range, what does 15

that refer to, sir? 16

A UFMI stands for urban fleet member ID and this is 17

more of the technical term for the push to talk phone number 18

or direct connect phone number for this phone. 19

Q So that would be more like a walkie-talkie function? 20

A Yes. 21

Q Is it necessary to dial a number with that function? 22

A Yes. 23

Q And how is that done? 24

A Very similar through a typical phone call, it’s just 25

when you use the push to talk function on these phones, like 26

you said, it’s similar to a walkie-talkie, it’s only one way 27

40

communications, so one person speaks and the other person 1

can listen. You don’t have that two-way conversation like 2

you normally do on a phone call. 3

Q I show you now what’s been marked as State's Exhibit 4

76, and what are those records, sir? 5

A These are the direct connect call detail records for 6

the phone number listed in People’s Exhibit 75. 7

Q And those would be the direct connect calls 8

associated with the number ending in 7346? 9

A Yes. 10

Q And are those in a different format then the regular 11

phone calls? 12

A Yes. 13

Q I’m going to refer you to the screen and just pulling 14

out a column labeled ACG, I believe you previously explained 15

it, could again explain how this column relates to the phone 16

calls? 17

A Yes. Before in the large 101-page document, one of 18

the columns listed in there was labeled ACGID, access 19

controller gateway, which is a unique identifier number for 20

each individual cell site. From this column labeled here in 21

the call detail records, from ACGID, this tells me which 22

controller, which gateway was actually used to complete this 23

direct connect call. So you could take that information and 24

go to the cell site list to figure out which cell site was 25

actually used for that direct connect call. 26

Q And moving over to the final column on that page, 27

41

direct connect number, what is indicated there? 1

A This would be the phone number or the direct connect 2

phone number that was called for each individual phone call. 3

Q Sir, I’m now handing you what’s been marked as 4

State’s Exhibit 77, do you recognize that exhibit, sir? 5

A Yes. 6

Q What do you recognize that to be? 7

A This subscriber information for a Sprint Nextel 8

customer as well as 28 pages of call detail records for that 9

same customer’s phone. 10

Q And what is the number associated with that record? 11

A 860-726-5447. 12

Q Is this also a boost phone? 13

A Yes. 14

Q And what is the subscriber name associated with that 15

account? 16

A Chasy or Casy, it’s spelled C-h-a-s-y, Chapman. 17

Q And is there also a direct connect phone number 18

associated with that account? 19

A Yes. 20

Q And what would that direct number be? 21

A 174*313*13714. 22

Q I’m now showing you what’s been marked State's 23

Exhibit 78, do you recognize that, sir? 24

A These are the direct connect call detail records for 25

the subscriber number listed in the previous exhibit number 26

77. 27

42

Q If I can refer you now back to the direct connect 1

records, Exhibit 76, on page 2? 2

A Okay. 3

Q Beginning at 9:46:30 p.m., is there a direct connect 4

call between the direct number associated with phone number 5

7346 and State’s Exhibit 78, which I just handed you, the 6

direct connect calls for Chasy Chapman’s number? 7

A Yes. There is 8

Q And starting at 9:46:30 on March 9, 2009, on to page 9

3, how many direct connect calls were completed between 10

those two numbers? 11

A I count 24 phone calls. 12

Q Referring you now to State's Exhibit 78, the direct 13

calls associated with Chasy Chapman, beginning on March 9, 14

2009 at 9:34:02 p.m., do we see direct connect calls between 15

the Chasy Chapman number and the Adrian Dean number? 16

A Yes. 17

Q And how many calls starting between 9:34 and 11:58:22 18

p.m. are there? 19

A I count 12 phone calls. 20

ATTY. GARCIA: If I could just have a moment, 21

Your Honor? 22

THE COURT: Sure. 23

BY ATTY. GARCIA: 24

Q Sir, I’m going to refer you just once more up to the 25

screen, can you see that okay? 26

A Yes. 27

43

Q And as we read across the screen, the first column 1

would be the date; the second column would be the time of 2

the call that’s been placed, is that correct? 3

A Yes. 4

Q The third column would be the duration of the call in 5

seconds? 6

A Yes. 7

Q Column number 4 then would just be the urban network 8

code, where we see the number 6? 9

A Yes. That’s correct. 10

Q And then the next column over, it starts out with 11

321, there are a series of calls at 321, that would be the 12

tower that is being hit with the direct connect call? 13

A Yes. 14

Q And then last two columns would be the number that is 15

being connected with, is that correct? 16


ATTY. GARCIA: I have no further questions at 18

this time. 19

CROSS-EXAMINATION BY ATTY. ROMANO: 20

Q Sir, do you have the exhibits in front of you? 21

A Yes. I do. 22

Q Okay. Great. So let’s do this, let’s just walk 23

through each one individually numerically and just and get 24

these straight. The first one you have is number -- good 25

morning, sir, sir? 26

A Yes. 27

44

Q Good morning, I’m sorry. 1

A Good morning. 2

Q Now what is the first number on the exhibit? 3

A Number 74. 4

Q Okay. And number 74 is the call detail records for 5

which number are we dealing with? 6

A 860-922-0723. 7

Q Excellent. Now I think -- 8

ATTY. ROMANO: May I approach the witness, Your 9

Honor? 10

THE COURT: Sure. 11

ATTY. ROMANO: Thank you. May I view the 12

exhibit, Your Honor? 13

THE COURT: Sure. 14

BY ATTY. ROMANO: 15

Q Okay. Sri, now I believe the prosecutor referred you 16

to a time frame -- well first of all, 922-0723, do you see, 17

I hate to do this to you, but do you see any calls to or 18

from on this call detail record anywhere in the seven pages 19

that’s made to 860-726-5447? 20

A It’s going to take us some time, but yeah, I can do 21

that. 22

Q Okay. 23

A Okay. 24

Q I think 5447, that’s one of the other exhibits? 25

A Oh, it is? 26

Q Yes. 27

45

A What was the last four? 1

ATTY. GARCIA: In the interest of saving time, 2

I’m willing to stipulate to the fact that there are 3

no calls connected between those two numbers. 4

THE COURT: That’s your belief also? 5

ATTY. ROMANO: Yes. If there can be a 6

stipulation by and between counsel that in this 7

exhibit that there is no telephone call between the 8

call detailed or the telephone number for 860-922-9

0723 and telephone number 860-726-5447, in either one 10

of those exhibits, there is no communication or no 11

cell phone calls made between those two numbers. 12

That’s so stipulated? 13

ATTY. GARCIA: Yes. 14

THE COURT: Yes. The jury can consider that as 15

proven, as a fact. The lawyers agree to it. 16

BY ATTY. ROMANO: 17

Q Now in fact there is communication between the number 18

ending in 0723, which you have before you as Exhibit 74, is 19

that correct? 20

A Yes. 21

Q Okay. And the call detail records for the number 22

ending in 7346? 23

A Correct. 24

Q Okay. And that would be Exhibit 75, correct? 25

A Yes. 26

Q That’s 7246? Now the prosecutor referred you to 27

46

dates and times on Exhibit 75. And Exhibit 75 is the 1

telephone number 860-838-7346, those would be the records 2

for that number, correct? 3

A Yes. 4

Q All right. And it’s a rather large document, call 5

detail records dating back from March 6 from all the way to 6

March 12, six days? 7

A Yes. 8

Q Now he referred you to the date March 9th, is that 9

right, do you recall that? 10

A Yes. 11

Q I believe he referred you specifically to -- he may 12

have referred you to a time, was it 9:07 p.m.? 13

A That was one of the times, yes. 14

Q Okay. Now in terms of calls that were made between 15

that telephone number ending in 7346 and telephone number 16

5447, do you know what the longest conversation that 17

occurred on March 9th starting from that time on was between 18

those two numbers? 19

A Between the two numbers you mentioned and starting at 20

9:07 p.m. until the end of that day, March 9th of 2009, I 21

only show one phone call between those two numbers, which 22

was for zero seconds. 23

Q Okay. 24

ATTY. ROMANO: Court’s indulgence. 25

THE COURT: Take your time. 26

BY ATTY. ROMANO: 27

47

Q Now you did testify as to when you’re taking a look 1

at the call detail records there's that column that says 2

duration? 3

A Yes. 4

Q Now the clock begins to tick as soon as the call is 5

connected, is that correct? 6

A If you’re talking only about the Nextel network 7

records on these types of call detail records, the timing 8

would start when our network, the Nextel network receives an 9

answer connect message, which is basically it’s being 10

answered by a person or it’s being answered by a voicemail 11

or an answering machine system. 12

Q Okay. Because if we take a look at the call detail 13

records, if you just take a look for instance on that first 14

page, the larger exhibit for 7346, we see calls that are 4 15

seconds in duration, 2 seconds in duration, 3 seconds in 16

duration. So are you suggesting that an individual is 17

necessarily picking up on the other end for 2 seconds and 18

then hanging up or is it actually where one dials and one 19

views on your cell phone that it’s connecting, connecting, 20

connecting, and then it connects and at that point, once it 21

connects, that’s when the clock starts to tick? 22

A For an outgoing phone call, the timing for the 23

duration would start counting once our network received an 24

answer connect message whether it was a person answering the 25

phone or answering machine or a voicemail picking up, it 26

doesn’t tell me which, but that type of -- whether it’s 27

48

answered by a person or a machine, at that point it would 1

send an answer connect message to the Nextel network and our 2

network would start the clock. 3

Q Okay. So you can’t tell from these call detail 4

records whether or not the person on the other end or the 5

caller or the telephone number rather on the other end 6

actually picked up the phone or it went to a voicemail, 7

that’s what you’re saying? 8

A Outgoing calls, that’s correct. 9

Q For incoming calls there’s a different indication, 10

that’s the 11 in front of the telephone number and then it 11

also identifies it as being a routed call, that’s correct? 12

A That’s for the Sprint network, which reports 13

differently then the Nextel network. 14

Q Okay. So the telephone calls that we’re dealing with 15

that are on the Nextel network which numbers are those? 16

A The number we’re talking about right now 860-838-7346 17

and 860-726-5447. 18

Q Now in terms of the difference between the networks, 19

what is the difference between the networks, why are they 20

treated differently? 21

A They’re treated differently because the two 22

technologies are completely separate. The wireless portion 23

the technologies are completely incompatible and so we have 24

to keep them basically separate. It’s almost as if there’s 25

two different cell phone companies, but we’re all -- well we 26

are one company, but the technologies are completely 27

49

different and that’s why you see the difference in reporting 1

and the difference in technology. 2

Q Are the cell towers that are used the same cell 3

towers or are they different cell towers because of the 4

technology difference? 5

A The antennas may be on the same cell tower, but they 6

are different antennas. 7

Q All right. Let’s talk a little bit about the 8

cellular technology itself, let’s begin with the telephone, 9

itself, you describe telephones have different technologies 10

and you describe one being on Nextel network and one being 11

on the Sprint network, what’s the difference between a 12

cellular handset technology? 13

A Well as far as their design, it’s by company. 14

Different features for different things, but are you talking 15

about making phone calls? 16

Q Yes. I’m talking about making phone calls, so one 17

is, I would imagine on the IDEN type of phone and the other 18

would be CDMA, is that correct? 19


Q So can you describe for the jury the difference 21

between an IDEN and CDMA? 22

A The Sprint network uses CDMA technology, which stands 23

for Code division multiple access and that just describes 24

what we do to the radio frequency. We -- the multiple 25

access portion means that we can have many users on the 26

network at one time. The code division portion specifies 27

50

that we take radio frequency and we divide that frequency up 1

into different codes called Walsh codes and we assign each 2

user a different Walsh code on that frequency when they’re 3

making a call. On the IDEN network, which is IDEN, it 4

stands for integrated digital enhanced network. This is the 5

network that the Nextel network uses or the type of 6

technology. This uses TDMA, which is Time division multiple 7

access. Multiple access portion meaning the same, but the 8

time division, we take a radio frequency and we divide that 9

frequency up into time slots and we assign each user a 10

different time slot when they’re on a phone call. That’s 11

kind of the basic differences between the wireless portion. 12

Once you get down to the landline portion, when it’s 13

actually on a wire, the differences aren’t that different. 14

The phone switches are made by the same venders and our 15

phone calls are carried out the same way. 16

Q So what you described is the IDEN and the CDMA are 17

the radio propagation signals how they differ from one 18

another in terms of communicating cell phone towers, 19

correct? The handset with the cell phone tower? 20

A Well the radio modulations, how we modulate the radio 21

signal. 22

Q All right. And how does that effective the 23

difference between the range of the handset if it’s a CDMA 24

handset or it’s an IDEN handset, I would imagine each cell 25

phone has a particular ring? 26

A It’s not really the cell phone, it would be the cell 27

51

tower and it would depend on the frequency that the cell 1

tower is using. 2

Q Okay. So you’re saying that the cell tower itself 3

puts out a signal or are you saying the phone, you described 4

when you power up the phone, that the phone begins searching 5

for a tower, right? 6

A Yes. 7

Q Okay. So the phone has to have some kind of power or 8

some kind of signal to be able to go ahead and grab a 9

signal, if you would, right? 10

A No. At that point, the phone is just receiving; it’s 11

just listening for all the different frequencies and their 12

signal strength. 13

Q Okay. So the phone itself, the wattage of the phone 14

makes no difference in terms of how it functions or how it 15

communicates with the tower? 16

A It does once it starts transmitting. 17

Q Okay. So different phones have different wattage, 18

correct? 19

A Yes. They do. 20

Q All right. Do you have any information about the 21

type of wattage of phones that were used for these telephone 22

numbers? 23

A No. 24

Q Okay. Now all phones, you would agree with me, past 25

2006 are equipped by law with a GPS chip, correct? 26

A I know that they do now, but I don’t know the exact 27

52

year, I don’t work with the handsets too much. 1

Q All right. But it sounds like you have some 2

familiarity with it, that they are all equipped GPS chips 3

and that’s for E911 purposes, correct? 4


Q Okay. Can you explain to the jury what E911 means? 6

A Well the FCC sets standards that cell phones have to 7

be able to be located by GPS means by a certain accuracy at 8

a certain percentage of the time, so if you call 911, and 9

they try and reach out and find you for an emergency, that 10

they have to be able to find within a certain amount of 11

space an accuracy reading in meters, you have to be able to 12

find that phone a certain percentage of the time for their 13

emergency procedures. 14

Q Okay. So prior to this chip being mandatorily 15

installed in telephones, people were calling in to 911 and 16

it was the cell phone tower that was being registered by 17

911, correct? 18

A If they -- if a 911 center had what’s called Phase 19

One, then yes, the cell tower should be registered. 20

Q And I guess the problem with that was the cell tower 21

itself doesn’t locate an individual for 911 purposes, 22

there’s no way that emergency responders can find that 23

person just based on a cell phone tower location, correct? 24

A They could find, they couldn’t pinpoint it, but they 25

could narrow it down pretty well. 26

Q It would be narrowed down to the range of the tower 27

53

itself, right? 1

A Yes. 2

Q Okay. So the tower itself depending on the tower, 3

the tower strength could be greater on one angle, correct? 4

A Greater than? 5

Q Well let’s take a look at a tower, right, the tower 6

is comprised of let’s simplify it and say it’s a pole that 7

extends high up into the sky, right? 8

A Okay. 9

Q And on that tower there’s several antennae, correct? 10

A Yes. 11

Q The antennae that actually communicate with the cell 12

phone handset, correct? 13

A Yes. 14

Q All right. Now an antennae itself can be 15

omnidirectional, which means from all -- from a 360 degree 16

angle it can go out and it can communicate and send out 17

signals, correct? 18

A It can, yes. 19

Q And some towers are designed so that they’re 20

unidirectional and they may only send out a signal in one 21

direction, correct? 22

A Correct. 23

Q They could be bidirectional so they could be sending 24

out in two opposite directions, correct? 25

A Correct. 26

Q All right. So for example, hypothetically, 911 27

54

receives a telephone call, this is before the GPS, they know 1

it’s on tower 3, but without having any information as to 2

whether or not that tower is omnidirectional, 3

unidirectional, bidirectional and where those antennae are 4

facing you can’t really pinpoint where the person is, can 5

you? 6


Q So what the U.S. Government did is to insure the 8

safety of all citizens is to insure that a GPS chip is 9

installed in phones, right? 10

A Yes. 11

Q And that would be the best way to locate an 12

individual, right? 13

A Through GPS, yes. 14

Q Now all phones are equipped with that GPS chip for 15

E911 purposes, right? 16

A Yes. 17

Q We’re not talking when we’re talking about a GPS 18

chip, we’re not talking about a GPS function that one may 19

purchase in a phone and then use that to travel or find 20

directions from one place to another; we’re talking about 21

something different, right? 22

A No. That chip would be used for finding directions 23

or things like that. 24

Q Right. But we’re not talking applications; you can 25

have a phone without a GPS application, all right? Let’s 26

assume that you go into a store, you buy the simplest phone 27

55

there is there, the $20 phone in the box, right? 1

A Okay. 2

Q On it there’s no GPS application, you’re not buying 3

it so you can go from point A to point B and look up a 4

direction, okay? 5

A Okay. 6

Q And some of those phones don’t have that application 7

which would be a program loaded on that phone, right? 8

A Again, I don’t work with handsets enough, but we 9

could say that. 10

Q All right. But the point is that the GPS chip is 11

still going to be in that phone, right? 12

A Yes. 13

Q For the E911 purposes? 14

A Yes. 15

Q Okay. So a cellular network itself is designed as 16

call cellular because it actually is comprised of like 17

different cells, right? 18

A Yes. 19

Q Just like human cells in the body, right? 20

A There’s different cell sites, but I wouldn’t compare 21

it to the human body. 22

Q Okay. All right. The point is that a cellular 23

network is designed to be just as efficient as a land line, 24

you don’t wan calls to be dropped, right? 25

A Well, we would like that to never happen, yes. 26

Q That’s the business that the cellular companies are 27

56

in to insure that calls are being connected, right? 1

A That would be a big part of the focus, yes. 2

Q If calls are being dropped, people are going to 3

switch to another network, right? 4

A I would assume so. 5

Q All right. So in order to insure that there’s going 6

to be a continuum in that telephone call once it begins and 7

once it ends, the coverage areas of towers must overlap, 8

correct? 9

A They don’t have to. 10

Q They don’t have to, but then there would be a break 11

in coverage, wouldn’t there? 12

A There would be a possible dead zone, yes. 13

Q Okay. So to insure that there are no dead zones, if 14

a company was interested in keeping its customers, it would 15

go ahead and have some overlap with those tower coverage 16

areas, correct? 17

A Sure. 18

Q And that would be a good business model for a company 19

that wanted to insure that his calls wouldn’t be dropped, 20

right? 21

A I would think so. 22

Q All right. One of the things that you mentioned was 23

traffic or actually one of the things the prosecutor 24

mentioned was traffic on a cellular tower as a factor that 25

may affect the way a cell phone communicates with a tower, 26

do you recall that? 27

57

A Yes. 1

Q All right. So another reason why a cell phone 2

company might want to have overlapping areas of coverage is 3

to insure if the traffic gets too heavy on one cell tower, 4

another can pick it up and the person can be in the same 5

coverage area, correct? 6

A That’s true. 7

Q All right. Did the State or did you provide the 8

State with what’s called a propagation map? 9

A No. 10

Q Can you explain to the jury what a propagation map 11

is? 12

A Propagation maps would show the estimated coverage 13

range of a particular cell side. It would have a map of an 14

area, show where our cell side or cell sites are located at 15

and showed the estimated range for each individual cell 16

site. 17

Q I noticed one of the exhibits is a list of cellular 18

sites? 19

A Yes. 20

Q It’s a paper list that shows where they’re located, 21

right? 22

A Yes. 23

Q Okay. On that list does it tell us the range of 24

those towers? 25

A No. 26

Q On that list does it tell us if those towers overlap 27

58

with one another? 1

A No. 2

Q Is there any information or data about traffic that 3

you provided the prosecutor with? 4

A No. 5

Q For March 9th or March 10th or for any of the dates I 6

these records? 7

A No. 8

Q So we talked about how the cellular tower one of the 9

effective designs would be to have overlapping areas of 10

coverage, we covered that, right? 11

A Yes. 12

Q All right. Let’s talk about the towers themselves. 13

We mentioned that the towers have antennae and the antennae 14

communicate with the cellular handsets and it could be 36o 15

degree, it might be 90 degree, correct? 16

A Yes. 17

Q And we don't know from the data that we have the 18

signal strength of the tower, correct? 19

A Correct. 20

Q So you can't adequately determine what the range of 21

anyone one of those cell phone towers in that book, in that 22

large book that was provided to you by the -- or you 23

provided the prosecutor with is, correct? 24

A Not specifics, no. 25

Q Specifics, I’m talking about at all, is there a way 26

that you can provide the jury with any information as to the 27

59

range of any of those towers in that document? 1

A No. Not specifically. 2

Q Generally then? 3

A Yes. 4

Q Please, tell them generally how you can go ahead and 5

do that? 6

A Well nationwide our cell sites would have an average 7

maximum distance from anywhere from 2 to 10 miles, which 8

would again depend on the factors that we talked about 9

earlier, the design of the cell sites, the locations of the 10

surround cell sites, topography, and clutter. 11

Q So 2 to 10 miles is the range, correct? 12

A Again, nationwide an average maximum range without 13

knowing anything about the cell sites. 14

Q Okay. And average maximum range, but for these cell 15

towers or let’s talk about the cell tower sites that the 16

prosecutor provided you in that summary, those seven cell 17

tower sites, any information about the ranges on those 18

towers? 19

A No. 20

Q Any information about the direction, the angle where 21

those antennae were placed on those towers? 22

A No. 23

Q Do you have any information about the topography 24

where that range was facing? 25

A No. 26

Q Any information about those towers whether or not 27

60

they were shared or rented space or they’re purely Nextel 1

towers or Sprint towers? 2

A Well they’re purely Nextel towers. 3

Q Okay. 4

A I’m sorry; I want to back up, Nextel antennas. 5

Q Okay. So towers themselves, the location of the 6

tower, a tower may be shared be several cell phone 7

companies, correct? 8

A It could be. 9

Q And then the antennae that are on those towers cold 10

be assigned to different companies, correct? 11

A Yes. 12

Q Okay. And the bandwidth space on each antenna could 13

therefore be subdivided and then rented out to other 14

companies as well, correct? 15

A No. We would own the spectrum. 16

Q Okay. How do you determine the range in terms of the 17

spectrum that you’re talking about, how many calls can go 18

through any particular tower? 19

A It would depend on the tower set up. It’s different 20

from one to another. 21

Q So in terms of the maximum amount of calls or 22

capacity for each tower, do you have any information about 23

those seven cell phone towers that the prosecutor gave you 24

in summary in terms of how many calls, what maximum capacity 25

is with any one of those towers? 26

A No. 27

61

Q So you mentioned some factors that may affect a 1

towers ability to connect with a handset, correct? 2

A Yes. 3

Q All right. Some things you may not have mentioned 4

would be the fact and whether or not a handset is indoors or 5

outdoors, correct? 6

A That’s correct. No, actually that’s not correct, 7

because I did talk about structures. 8

Q Okay. So the nature of the structure whether or not 9

it’s a car or whether or not the structure of the building 10

itself could affect the way that the handset communicates 11

with the tower, correct? 12

A Yes. 13

Q How about repairs of towers? 14

A What about them? 15

Q If the tower is being repaired, then obviously that 16

tower will not be utilized at that time, correct? 17

A If we do take it complete off air, then you have that 18

tower not being able to take or receive phone calls. 19

Q So the handset that’s seeking that closest tower 20

would not go to that tower if that actually in fact was the 21

closest tower, it would go to a different tower because that 22

tower was under repair, correct? 23

A It may go to another tower, yes. 24

Q Now when repairs are being made it would -- could be 25

that the company would want to insure that its customers 26

would not loose their communication, correct? 27

62

A Sure. 1

Q So they would want to make repairs on off peak hours 2

to their cell towers, correct? 3

A Yes. 4

Q Wouldn’t you agree with me that the times that the 5

prosecutor gave you would be off peak towers? 6

A No. 7

Q No? 8

A No. 9

Q Please explain? 10

A Off peak hours are service windows are typically from 11

1:00 to 3:00 a.m. in the morning. 12

Q Okay. So you’re saying that repairs would be done at 13

1:00 to 3:00 a.m. in morning normally? 14

A Typically in my experience that’s the absolute least 15

amount of traffic is during that timeframe and so if you had 16

to take a tower off air that would be the best time to do it 17

because you don’t want to have angry customers, people 18

missing calls, things like that. 19

Q Now in his case, would these towers, these seven 20

towers and the data that you have with respect to the dates 21

and times that the prosecutor gave you, do you have any 22

information at all with respect to towers being down? 23

A No. 24

Q Okay. You don’t have any information as to any 25

obstructions between the tower and a handset for any of the 26

times in these records and the towers that are included in 27

63

that summary or at all, correct? 1


Q So what you were saying was ideally what the cell 3

phone looks for is the strongest signal, right? 4

A Yes. 5

Q So due to all these variables that you discussed that 6

the prosecutor brought up, and some of the variables that we 7

discussed, a cell phone isn't always going to go ahead and 8

communicate with the closest tower, correct? 9

A Correct. 10

Q And you would agree with me that variables exist in 11

our lives, our everyday life, they’re common, correct? 12

A You talking about cell phones or just life in 13

general? 14

Q Strike that. Life in general, would you agree that 15

there are always things outside of our lives that are going 16

to affect us in a variety of different ways, no day is the 17

same there, ever, right? 18

A I guess. 19

Q All right. And so no individual when they’re 20

communicating on that cell phone with that cell phone 21

handset and they’re traveling, the conditions are going to 22

constantly be changing around them, the variables will 23

constantly be changing, correct? 24

A The could be. 25

Q Okay. Unless of course I think the prosecutor may 26

have used the term, correct me if I’m wrong, an ideal 27

64

setting, an ideal setting would be a flat plain, no 1

obstructions, an individual outside where the weather is 2

perfect and the signal -- and they’re in direct line of 3

sight of the cell phone tower, right? 4

A That would be a good condition. 5

Q All right. What I’d like to do is go through a 6

couple examples, some hypothetical’s with you, if I can. 7

Your Honor, could we have the easel and then have some 8

paper, if I could approach. 9

THE COURT: Sure. You going to take a few 10

minutes to set up, the jury hasn’t been out here that 11

long, but I’ve been involved in cases since actually 12

before 10:00, so we’ll take a little break. We will 13

recess this until 12:20, a ten minute break. Don’t 14

talk about anything you’ve heard so far, you can 15

retire. 16

(The jury exits the courtroom.) 17

THE COURT: Recess. 18

(Recess.) 19

THE COURT: All set? 20

ATTY. ROMANO: Yes. Only question for Your 21

Honor is do you have a laser pointer available? 22

THE COURT: I don’t, but we might have one. 23

ATTY. GARCIA: Give me a second, I may have one. 24

Yes. I do. 25

ATTY. ROMANO: Can I just, I just want to make 26

sure. Okay. Great. 27

65

THE COURT: Okay. All right. We’re ready. 1


THE COURT: All right. The jury is back, 3

including the alternates. We’re ready to go, 4

continue cross-examination. 5

BY ATTY. ROMANO: 6

Q So sir, what we’ve done is we’ve set up an easel next 7

to you, okay, and hopefully we’ll go through some 8

hypothetical examples of how cell towers may communicate and 9

that kind of thing, okay. 10

A Okay. 11

Q I did my best, so excuse the artwork there. So for 12

the purposes of this hypothetical, on this first page we 13

have what looks like a V, okay, it’s two straight lines and 14

then V in the middle, you recognize that? On the bottom, 15

the black line that goes into a V and then it continues on. 16

A Okay. 17

Q Okay. Now let’s assume for a moment that we’re in a 18

car and the car is traveling from the right hand side to the 19

left hand side, okay, so that V, that black line actually 20

represents a road, all right? 21

A Okay. 22

Q And let’s assume that the road, because its in a 23

valley, goes down into the valley and then comes out and it 24

continues, so the driver is on the telephone at that point, 25

he’s on a cellular telephone. 26

A One second, is this an overview from above or side 27

66

view? 1

Q It’s a side view, it’s a slice. 2

A Okay. So the car is driving down into the valley, 3

okay. 4

Q Exactly. Okay. So you mentioned topographical 5

issues with respect to communication with cell phone towers 6

and handsets, that was one of the issues that you brought up 7

on direct and we talked about it as well, correct? 8

A Yes. 9

Q One of the things that cell phone company would do to 10

insure that a call would not be dropped in an area like this 11

where there’s a valley is to actually place a tower right be 12

the valley so that coverage area would maintain in that 13

area, so there wouldn’t be a loss of coverage for that 14

individual who was driving in that straight line, correct? 15

A They might. 16

Q Okay. So for the purposes of this hypothetical, you 17

have an individual driving on this side and they’re driving 18

left, they go down in the valley, so now they’re covered at 19

first by cell phone tower 1, you agree with me, that’s the 20

one. There’s a cell phone tower here and the signal is 21

extending across a horizontal area and cover -- this is the 22

area of coverage for that cell phone tower, we’re assuming 23

that there’s an antenna right there and the antenna is 24

covering all this area here. 25

A Okay. 26

Q Now the company, because they want to make sure that 27

67

their customers are happy when they go into this valley 1

place a tower here, I know it’s very lightly marked as 2, 2

you see that there? 3

A Yes. 4

Q Okay. Now 2 is the tower or the antenna on that 5

tower extends into the valley to insure that the coverage 6

are or the call is not lost whenever anyone enters that 7

valley. 8

A Okay. 9

Q Would that be consistent with how telephone 10

companies, cellular companies might go ahead and set up 11

their towers to insure that coverage is not lost? 12

A In this hypothetical, I don’t think you really need 13

to. 14

Q Okay. Well assuming that over here the coverage area 15

is extending here, the antenna is not covering the entire 16

coverage area here; you’re going to have -- 17

A Well it could. 18

Q We could assume it’s a mountain, mountainous region, 19

so you go up and then you loose the coverage there, we can 20

do it that way too. But for purposes of this, if you go 21

down and you’re going down into the valley, you’re loosing 22

that signal from one, right? 23

A For this example, we can say that, but it’s not -- 24

okay. 25

Q Okay. So explain to us then how a cell company would 26

go ahead and insure that there would be coverage, you talked 27

68

about topographical areas where people might loose or there 1

might be signal strength loss with a area, a valley would be 2

a common occurrence, right? 3

A It could be. 4

Q Okay. So would you agree with me that cell phone 5

company in order to insure there would be coverage there in 6

the valley might go ahead and place a tower to insure there 7

would be coverage in that valley and it’s not lost? 8

A They might. 9

Q All right. Let’s assume for the purposes that that's 10

what this company did, okay? So the individual is traveling 11

from the right to the left and there’s a continuing now, 12

okay, so they go cell tower one, now covered by cell tower 13

two, and up and now they’re back at cell tower one, you 14

understand that? 15

A Yes. 16

Q All right. So if you took that as an example and you 17

wrote that down on paper, one, two, one, that might appear 18

as if that person made a U-turn, might it not? Just on 19

paper alone. 20

A The person may have. 21

Q Or the person may have continued in a straight line, 22

but on paper the record itself, you couldn’t tell if they 23

made a U-turn, you couldn’t tell if they were traveling in a 24

straight line? 25

A Exactly, you couldn’t say for sure that the phone was 26

even traveling at all. 27

69

Q Without knowing more then what’s on paper, you can’t 1

know what direction that person is traveling based on this 2

hypothetical, right? 3

A Based on going from one antenna to another antenna 4

and back to the other antenna, no, I wouldn’t be able to say 5

for sure. 6

Q Because number one originally was had the strongest 7

signal strength then number two had the strongest signal 8

strength, and when they exited number two’s region, number 9

one then returned to the strongest signal strength. 10

A The phone may have never moved and that could happen 11

or the phone cold move a great distance and that could 12

happen. 13

Q All right. So you describe even the fact that phone 14

may not move and it may appear as if it moved because of 15

cell site change, right? 16


Q So that has to do with those variables that you 18

discussed, correct? 19

A Yes. 20

Q And without knowing what variables apply for this 21

case, we don’t know what direction someone was traveling in, 22

do we? 23

A For this case it shows much more then just one or two 24

cell sites being used, so you can show once you have more 25

information to work with, you can show more. 26

Q Well with these calls, we have a beginning and we 27

70

have an ending, but we don’t know in between what direction 1

this person was traveling, correct? 2

A That’s correct for one phone call, but we also have 3

40, 28 pages worth of cell site data. 4

Q Sure. And each telephone call has its own two cell 5

site data that’s there, correct? 6

A Correct. 7

Q And each time that cell site is mentioned there is no 8

recognition of any of those variables that could alter the 9

way the cell phone handset is going to choose which tower to 10

use, right? 11

A Correct. 12

Q All right. So let’s go to the second example, may I 13

approach? 14

THE COURT: Sure. 15

BY ATTY. ROMANO: 16

Q Okay. Here’s the second example, looks like a bull’s 17

eye, right? 18

A Yeah. It does. 19

Q My best efforts at drawing circles, so what we have 20

here let’s assume for a minute in the center of that bull’s 21

eye labeled H is the handset, okay? 22

A Okay. 23

Q Now we have concentric circles, we have circles that 24

are so that each one is consecutive greater outside -- 25

placed greater outside that H, okay. Now let’s assume for a 26

minute that those circles themselves are indicative of the 27

71

distance, so we have number one, let’s call that number one, 1

the numbers indicate cell towers, okay? 2

A Okay. 3

Q So number one, here’s the cell tower, and you can 4

tell from the circle, number one is closest to H, right? 5

A Yes. 6

Q And then we see number two, and we see that’s the 7

next circle out, we can tell that number two is the next 8

closest tower to H, right? 9

A Yes. 10

Q Okay. We see number three and we can tell that 11

number three is then the next closest tower to H, right? 12

A Yes. 13

Q And then we see number four and number four is the 14

next closest tower after one, two, and three, right? 15

A Yes. 16

Q All right. So let’s talk about the choice of cell 17

towers for H. In the ideal world, right, that’s the 18

proposition that the prosecutor gave you, we have an open 19

field, the weather is perfect, there’s no obstructions 20

between the two -- the handset and the tower -- 21

ATTY. GARCIA: I’m going to object to the 22

characterization that being the proposition the 23

prosecutor gave him. I think what I asked him was 24

all things being equally is what it is. 25

THE COURT: Okay. We’ll accept that correction. 26

BY ATTY. ROMANO: 27

72

Q All things being equal, okay, which tower would I 1

choose? 2

A I would expect you to choose the tower labeled as 3

number one. 4

Q Okay. And that’s assuming -- let’s assume right now 5

-- and that’s assuming number one would be the closest, 6

right? 7

A Yes. 8

Q Okay. Let’s assume for a minute number one is under 9

repair, now which tower would H communicate with? 10

A It still can be number one, just because a cell site 11

is under repair doesn’t mean it’s completely off line. 12

Q It’s under repair, it’s down. 13

A Okay. It’s completely down, it’s off air, I would 14

expect it again to use the closest cell site, which in this 15

case would be number two. 16

Q All right. And let’s assume for a moment that there 17

is an obstruction between cell site number two and H that 18

prevents a strong signal, a line of site propagation, radio 19

frequency propagation between the handset and the -- which 20

tower would it choose then? 21

A It could still choose two or maybe three. 22

Q Okay. So three may actually have a stronger signal 23

given those two hypothetical’s, one is under repair, two, 24

there’s an obstruction, now its going to choose three, 25

right? 26

A Not necessarily, it could choose three. 27

73

Q It could choose three, if three presented as the 1

strongest signal, right? 2

A Correct. 3

Q All right. Now let’s talk about another variable 4

that might prevent the handset from choosing three, you came 5

up with several, can you come up with one? Well let’s do 6

this, sir, number three, the antenna angle on number three 7

faces a different direction, so the antenna angle while 8

there’s a cell site there and there’s a cell tower there, 9

the angle of the antenna faces absolutely the opposite 10

direction. So then which cell site would H communicate 11

with? 12

A So number one is off line, number two has one antenna 13

and it’s -- 14

Q No. Number two has that obstruction. 15

A Oh, okay. And number three has an antenna that faces 16

-- 17

Q Faces the cone; the conical angle for that antenna 18

faces the opposite direction. 19

A So it only has one antenna? 20

Q It has one antenna. 21

A Again, it could still choose two. There’s a chance 22

that number three may get some energy over there to the 23

handset, and there’s a slight possibility that number four 24

could be used. 25

Q Four might actually have the strongest signal in that 26

hypothetical, correct? 27

74

A I don’t know. There’s so many variables that you 1

don’t know about that. If so far away, I mean how far away 2

is four from the handset? 3

Q We’re not even -- we’re not even gauging? 4

A Okay. That’s something you have to know, are we 5

talking 50 miles or are we talking 4 miles? 6

Q I don’t know. What did we talk about in this case? 7

A Well -- 8

Q With the these cell towers, are we talking about four 9

miles or are we talking about 50 miles? 10

A I don’t know how far apart these cell towers are, 11

there’s a list of 101 cell towers. I don’t know exactly 12

where each one is placed and the distances between them. 13

Q And you don’t have a propagation map for all the cell 14

towers that could have coverage for these handsets that 15

they’re talking about, right? 16

A Yeah. 17

Q But you don’t know the distances just like we’re 18

going through this hypothetical here; you really can’t go 19

through a hypothetical with these telephone records, can we? 20

A Well the records are hypothetical, they records are, 21

you know, business records from my company. This is a 22

hypothetical. 23

Q Right. But in terms you’re talking about variables 24

and how variables come into play with a handset choosing a 25

tower, we don’t know what those variables are for this case 26

too? 27

75


Q Let’s go on to the next example. All right. Now 2

we’ve got the handset in the middle and we’ve got four 3

towers and they’re all equally distant to that handset, 4

which tower is the handset going to communicate with? 5

A The one that’s providing the strongest signal. 6

Q What happens if they’re all 10 miles away and all 7

things are equal? 8

A It would be the one that’s providing the strongest 9

signal. 10

Q Can you tell me which one that might be then? 11

A No. And this is a map of five dots, you can’t, you 12

have to have more information. 13

Q Now in terms of the coverage areas that you talked 14

about, you mentioned that some cell phone towers, you said 15

the average coverage might be 2 to 10 miles, that was 16

average, it could be more, could be less, correct? 17

A Average maximum. 18

Q Average maximum, it could be more, it could be less, 19

right? 20

A It could be. 21

Q Okay. What is the maximum that you know about for 22

cell phone towers? 23

A The maximum that I’ve seen personally was about 6½ to 24

7 miles. 25

Q You just said the average was 10? 26

A No. I said the average maximum nationwide could be 27

76

anywhere from 2 to 10 miles. 1

Q Okay. The average maximum nationwide 2 to 10. Let’s 2

use 10 as an example, okay, for the purposes of this 3

hypothetical? 4

A Okay. 5

ATTY. ROMANO: May I approach, Your Honor? 6

THE COURT: Sure. 7

ATTY. ROMANO: I’m going to have to be over at 8

the easel? 9

THE COURT: What’s that? 10

ATTY. ROMANO: I am going to have to over there. 11

THE COURT: That’s okay. 12

BY ATTY. ROMANO: 13

Q Let’s assume for the purposes of this hypothetical 14

here’s the tower, okay, and we have -- this is an 15

omnidirectional tower, so it’s got an antenna that has 360 16

degree coverage, okay? 17

A Okay. 18

Q And we’re talking about a 10 mile radius, so we go 19

out 10 miles, right. I’m going to go all around, let’s 20

assume that that’s a perfect circle, okay. Now we would 21

calculate the area of coverage by using one of the basic 22

formulas in geometry, right? That would be -- if want to 23

find out the area, the full area of coverage, it would be pi 24

times r squared equals area, remember that? 25

ATTY. GARCIA: The State will stipulate that 26

that’s a correct formula, Your Honor. 27

77

ATTY. ROMANO: All right. 1

BY ATTY. ROMANO: 2

Q Let’s take the 10 miles, this is the radius of the 3

circle, correct, we’ll assume that’s the radius and this is 4

equal distance, right. So 10 times 10 would be 100, right, 5

and we’d multiply that by pi, pi, let’s assume without it 6

going all the different, you know the different numbers we 7

can go down, is 3.14, right? 8

A Yes. 9

Q All right. So the total area would be 314 miles 10

squared, square miles, right. So each tower itself, let’s 11

assume that the tower has a 10 mile range is going to have a 12

full coverage of 314 square miles, all things being equal, 13

right? 14

A I just don’t get this. I don’t understand what 15

you’re trying to? 16

Q We’re talking about the area of coverage for -- let’s 17

back up, okay. You said that cell phone towers communicate 18

with handsets, right? 19

A Yes. 20

Q And the towers permit a signal, right? 21

A Yes. 22

Q And that signal has a range, right? 23

A Yes. 24

Q And that range could have a nationwide maximum 25

between 2 and 10 miles, correct? 26

A Sure. 27

78

Q So let’s assume that it's 10 miles for this example? 1

A Okay. 2

Q Now that range is 10 miles extending in one 3

direction, right? 4

A Okay. 5

Q Now let’s assume that the tower is omnidirectional 6

meaning it extends 360 degrees, okay? 7

A Okay. 8

Q Now if we’re going to calculate the full area of 9

coverage, not just a straight line, but the actual square 10

mileage for that tower coverage, we’re going to have to do a 11

mathematical calculation, you would agree with me? 12

A If you wanted to do that, yes. 13

Q Okay. And that would be the accurate mathematical 14

calculation to make, correct? 15

A Yes. 16

Q Okay. So the fact that someone in a cell phone 17

record comes up with tower A or tower B or tower C, with 18

that assuming that it’s 10 mile range, they could be 19

anywhere within 314 miles of that tower, correct? 20

A For this extreme hypothetical, then yes, I would 21

agree with that. 22

Q And we could go ahead and we could do the math or 6 23

miles out, 6 mile radius, we could do the math for 5 mile 24

radius, et cetera, correct? 25

A You could. 26

Q All right. We have absolutely no data regarding the 27

79

cell phone tower ranges in this case, correct? 1

A Again, yes. We do not. 2

Q Now are you aware of any industry -- strike that. 3

Isn't it true that in private industries, when they’re 4

trying to determine locations of -- when they’re trying to 5

determine a location, the use GPS, shipping industry, 6

correct? 7

A I don’t work in shipping. 8

Q Airplanes, correct? 9

A I don’t work in the airline industry. 10

Q Daddy’s trying to keep track of their daughters on 11

their cell phones? 12

A I’m not a daddy and I don’t have -- I don’t do that. 13

Q Are you aware of any industry whatsoever that you 14

uses purely cell phone towers to go ahead and locate objects 15

or find proximity of objections, any industry at all? 16

A I can speak in the cellular industry we have. 17

Q Okay. But if you’re trying to locate the precise -- 18

we’ll you keep track of that because that’s the billing 19

records, correct? 20

A These records are mainly used for billing, yes. 21

Q Right. So you’ve got to know if someone goes outside 22

a network or outside a range or if they’re roaming, et 23

cetera, correct? 24

A I’m sorry, we would have to? 25

Q You might, if that’s part of the cell phone plan, if 26

they get billed extra for roaming? 27

80

A We would get roaming information from the other 1

carriers. 2

Q Okay. For the U.S. Government, they have passed 3

legislation 4

ATTY. GARCIA: Objection to the form of the 5

question. Counsel is testifying. 6

ATTY. ROMANO: It’s cross-examination. 7

THE COURT: Overruled. The question the U.S. 8

Government set up -- 9

ATTY. ROMANO: I’ll rephrase it. 10

THE COURT: Okay. 11

ATTY. ROMANO: I’ll rephrase, I was going to 12

strike it. 13

BY ATTY. ROMANO: 14

Q When the U.S. Government considered the importance of 15

individuals being able to communicate with 911 operators, 16

they abandoned -- 17

ATTY. GARCIA: Objection. Assumes facts not in 18

evidence. 19

ATTY. ROMANO: We talked 911 legislation in the 20

beginning, Your Honor. 21

THE COURT: The way the government acted is 22

obvious, they wanted to know where 911 calls were 23

coming from, so overruled. Go ahead. 24

BY ATTY. ROMANO: 25

Q And it wasn't good enough for the U.S. Government, 26

right? 27

81

A I’m sorry, what wasn’t good enough? 1

Q Merely -- 2

ATTY. GARCIA: Objection. Calls for speculation 3

and a conclusion. 4

THE COURT: Enough, the answer is obvious. 5

Overruled. 6

BY ATTY. ROMANO: 7

Q It wasn't good enough for the U.S Government to just 8

locate someone for 911 based on the cell tower, was it? 9

A I wasn’t involved -- I don’t work for the U.S. 10

Government, I wasn’t involved in the decision and I don’t 11

know. 12

Q Legislation was passed to insure that each and every 13

cell phone had the GPS chip in it so they could be located 14

in an emergency telephone call, correct? 15

A I believe that’s what they said, yes. 16

Q And that’s to go ahead and protect every single 17

person that has a cell phone to insure their safety, 18

correct? 19

A The way I understand it, no. 20

Q Calling 911 isn’t a safety issue? 21

A You didn’t mention calling 911; you just mentioned 22

the safety of every person. 23

Q I talked about people with cell phone handsets that 24

are now equipped with GPS to insure E911 capability, okay. 25

A Okay. 26

Q And that’s to insure the safety of every individual 27

82

who owns a cell phone, right? 1

A Well isn’t it to insure that they could be located. 2

Q Right. Now I don't mean to be flippant with this 3

question, okay, on any of these records is there any 4

evidence of the content of any conversations that anyone 5

had? 6

A No. 7

ATTY. ROMANO: No further questions. 8

REDIRCT EXAMIANTION BY ATTY. GARCIA: 9

Q First with respect to towers, if a cell phone call is 10

transmitted through a particular tower, would it be accurate 11

to say that that phone is within the range of that tower? 12

A Yes. 13

Q Does the wattage of the phone itself play any role in 14

which tower is hit when a call is initiated or received? 15

A It can. 16

Q We talked a little bit about clutter, and when we’re 17

referring to clutter is that referring to buildings, trees, 18

things of that nature? 19

A Yes. 20

Q How tall would a building need to be, if you know, to 21

be big enough to provide interference? 22

A Well any, I mean, it could be extremely small, one 23

story. It really doesn’t matter, anything that would 24

obstruct the energy, obstruct or interfere or absorb it. 25

Q Okay. Depending on where the phone is in relation to 26

that particular building? 27

83

A That would be a factor, yes. 1

Q And are you familiar with the topography of the 2

Connecticut River Valley? 3

A No. 4

Q Between Hartford and Bloomfield? 5

A No. I’m not. 6

Q And we’ve talked a lot about or Attorney Romano 7

talked a lot about locating a person, fair to say that if a 8

person strikes a tower the only thing you could really say 9

is that they’re within range of that tower? 10

A Yes. 11

Q To know exactly where they were, you’d need more 12

information? 13

A Yes. 14

Q For example that person telling you where they were? 15

A Well that would help. 16

ATTY. GARCIA: I have no further questions. 17

ATTY. ROMANO: Just very briefly. 18

RECROSS-EXAMINATION BY ATTY. ROMANO: 19

Q What are the ranges of any of these towers in that 20

entire book that you got, the prosecutor marked as an 21

exhibit? 22

A I don’t have it. 23

Q How about the seven towers that he gave you as a 24

summary? 25

A I don’t know. 26

ATTY. ROMANO: No further questions. 27

84

ATTY. GARCIA: No further. 1

THE COURT: All right. Now this gentleman is 2

from Kansas, can we let him? 3

ATTY. GARCIA: I’m perfectly willing to have him 4

excused? 5

ATTY. ROMANO: Yes, sir, Your Honor. 6

THE COURT: Thank you. Have a good trip back. 7

THE WITNESS: Thank you. 8

ATTY. ROMANO: Your Honor, may I address the 9

Court briefly. If I could just have those items 10

marked and moved in as full, Your Honor? 11

ATTY. GARCIA: No objection. 12

THE COURT: Okay. Defendant’s number, how many 13

are there, three? 14

ATTY. ROMANO: Four. 15

THE COURT: They’ll be numbered in order; we’ll 16

take care of that. Anything else, should I let the 17

jury go? Actually, why doesn’t the jury retire and 18

I’ll bring you back and we’ll talk about the schedule 19

in a minute. Okay. You can just retire for a moment 20

and then we’ll bring you right back. Certainly 21

within the next two or three minutes, okay. 22


THE COURT: Is it your preference to adjourned 24

for the day? 25

ATTY. ROMANO: I’m done, if that’s okay with the 26

Judge, that would be my request, okay with the Court, 27

85

I mean. 1

ATTY. GARCIA: That’s fine with State, Your 2

Honor. 3

THE COURT: How much you want me to tell them, 4

you know, what? 5

ATTY. ROMANO: Tell them scheduling issues and 6

we’ll continue tomorrow and we’ll deal with the next 7

witness. 8

THE COURT: Yes. 9

ATTY. GARCIA: I think that’s fine. They know 10

that you’re involved in another trial as well, so I 11

don’t think they would attach significance one way or 12

the other. 13

THE COURT: Yeah. We kind of blocked out today 14

for this fellow and some people thought it might be 15

longer, okay. We can have them back. 16


THE COURT: Have a seat. The jury’s returned, 18

including the alternates. You all ready know because 19

I told you that I worry about what you think about 20

this system and me. I don’t want you think that 21

Judge O’Keefe doesn’t care about the time that you’re 22

devoting to this case, because it’s very valuable to 23

you and I don’t want you to think that I don’t care 24

about that. Today, for very solid reasons, I’m going 25

to let you go early. Now that might make some of you 26

very happy. It doesn’t put us behind schedule, I 27

86

didn’t pick the jury but the lawyers told me what the 1

schedule of the case is, we’re probably on schedule 2

or ahead. Like I said, it might make somebody happy 3

to be through early today. If that’s the case, fine, 4

but please don’t think we don’t appreciate the time 5

you’re devoting to the case. There are scheduling 6

considerations, a lot of them involving this witness 7

where we kind of had to block out the day, okay. 8

We’ll resume with Mr. Stephenson’s testimony tomorrow 9

morning at ten o’clock. 10

ATTY. GARCIA: Yes. 11

THE COURT: I hope that pleases you, the whole 12

picture, okay. Don’t talk about -- I’m going to let 13

you go for the rest of the day. I guess that’s the 14

way lawyers tell people that they’re done for the 15

rest of the day. Don’t talk about the case, don’t 16

read anything in the paper about the case, don’t 17

Google any legal terms, don’t text each other, don’t 18

let anybody talk to you about the case, you know, 19

some people might figure out what case you’re on and 20

try to talk to you, just say listen, I can’t talk to 21

you, I’ll tell you everything about the case when 22

it’s over, okay. As you can see, you know, a lot of 23

people devoted, I’m talking about everyone, there’s a 24

lot of people invested a lot of effort and time into 25

this case and you wouldn’t want that to be wasted 26

because of something that you did, you know, I 27

87

explained how terrible that could be. So have a nice 1

day here on March 17th and we’ll see you tomorrow 2

morning, okay. 3


THE COURT: Anything else? 5

ATTY. ROMANO: Thank you for your courtesy, Your 6

Honor. 7

ATTY. GARCIA: I assume Your Honor will not be 8

fasting this afternoon? 9

THE COURT: No. Everyday is Saint Patrick’s Day 10

for me, so nothing special about the day. So we’re 11

adjourned. 12

(Adjourned.) 13

14

15

16

17

NO: CR09-630168 : SUPERIOR COURT STATE OF CONNECTICUT : JUDICIAL DISTRICT OF HARTFORD v. : AT HARTFORD, CONNECTICUT ROGEAU COLLINS : MARCH 17, 2011

C E R T I F I C A T I O N

I hereby certify the foregoing pages are a true and

correct transcription of the audio recording of the above-

referenced case, heard in Superior Court, Judicial District of

Hartford, Hartford, Connecticut, before the Honorable Thomas V.

O’Keefe, Jr., Judge, on the 17th day of March, 2011.

Dated this 10th day of January, 2012 in Hartford,

Connecticut.

_______________________________ Lori Van Buren Court Recording Monitor

Docket No. HHD-To: Sprint Spectrum, L.P.

Sprint Corporate Security6480 Sprint ParkwayOverland Park, KS 66251

SUBPOENA DUCES TECUM

GREETINGS: BY THE AUTHORITY OF THE STATE OF CONNECTICUT, you arehereby commanded to appear before the

Hartford Superior Court, Hartford Judicial District, 101 Lafayette Street, Hartford, CT 06106 onNovember 1, 2012 at 9:00 a.m., or to such day thereafter and within sixty days hereof on which saidaction is legally to be tried, to testify what you know in a certain Criminal Action pending in saidCourt, between

State of ConnecticutPlaintiff,

v.

Defendant.

AND you are further commanded to bring with you and produce at the same time and placethe incoming and outgoing call history and the incoming/outgoing text message details of phonenumber (860) 728-92 , under the name of (account holder: ),between January 1, 2012 and the present,

to be used in evidence in the trial thereof.

HEREOF FAIL NOT, UNDER PENALTY OF THE LAW.

To any proper officer or indifferent person to serve and return.

Dated at Bloomfield, Connecticut, on October 16, 2012.

Aaron J. Romano, Esq. (Juris No. 415829)Commissioner of the Superior Court

Any and all questions regarding this subpoena may be directed to Aaron J. Romano, P.C., 45Wintonbury Avenue, Suite 107, Bloomfield, CT 06002 T:(860) 286-9026/F:(860) 286-9028.