United States v. Jones

• Decision Date: 23 December 2022
• Docket Number: 3:21-cr-89-BJB
• Parties: United States of America Plaintiff v. Salvador Abdul Jones Defendant
• Court: U.S. District Court — Western District of Kentucky

United States of America Plaintiff
v.
Salvador Abdul Jones Defendant

No. 3:21-cr-89-BJB

United States District Court, W.D. Kentucky, Louisville Division

December 23, 2022

SUPPLEMENTAL OPINION REGARDING THE PARTIAL EXCLUSION OF EXPERT TESTIMONY

BENJAMIN BEATON, DISTRICT JUDGE UNITED STATES DISTRICT COURT

“If highly consequential evidence emerges from what looks like an indecipherable computer program to most non-scientists, non-statisticians, and non-programmers, it is imperative that qualified individuals explain how the program works and ensure that it produces reliable information about the case.” United States v. Gissantaner, 990 F.3d 457, 463 (6th Cir. 2021).

That Sixth Circuit opinion addressed DNA testing in a gun case. This case concerns cell-phone data in a bank-robbery prosecution. But the reasoning applies almost directly. On more or less the same grounds articulated in Gissantaner, the Defendant here objected to testimony offered by a police officer regarding a computer program and presentation extrapolating from historical cell-site location information. “CSLI” is the technical and unharmonious term that lawyers and judges appear to have settled on when discussing a particular chain of evidentiary inferences: the apparent locations of people, based on the approximate locations of their mobile phones, derived from the known locations of cell towers.

The law of CSLI, however, remains less settled than the lingo. This chain of inferences-particularly when aided by software-is perhaps more contestable than it appears to many, including some who regularly confront such information. Before this trial, for example, neither side anticipated that the officer's CSLI testimony would amount to expert opinion subject to scrutiny under Federal Rule of Evidence 702. So the Court lacked an opportunity to consider in advance a motion to limit or exclude those opinions under the principles of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589 (1993). When the testimony drew an objection at trial, the Court halted the officer's direct examination, held a Daubert hearing, and substantially (but not entirely) limited the scope and content of his testimony. Given the time-sensitive nature of that mid-trial ruling from the bench, and the importance of this issue to the parties, the Court issues this supplemental

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opinion explaining the reasons for its decision in more detail than was practical while a jury was waiting for proceedings to resume.^[1]

In short, the Government sought to question a law-enforcement witness about two types of CSLI. One was permissible; the other was not.

First, the witness testified regarding phone records maintained in the ordinary course by T-Mobile, the Defendant's cell-phone provider. Those records reported the street addresses of Louisville cell towers the Defendant's phone interacted with at specific times.

These are straightforward documents that the witness handles on a regular basis as a member of the Louisville Metro Police Department's Digital Forensics Unit. Based on them, the witness could reliably “rule out” areas where the Defendant's cell phone would not have been during the time periods surrounding the robberies. He could also testify that the transmission of various calls or text messages was at least consistent with the phone's presence in a particular part of town. And based on his training and experience, the witness could explain on direct- and cross-examination the basis for his inferences, confidence, and reservations. This opinion testimony was appropriate under Rule 702.

Second, and far more problematic, was the witness's attempt to show the jury a detailed map purporting to “rule in”-down to the block-the specific areas where the Defendant's phone could and could not have been when it made the calls and messages at issue. As a visual aid to his testimony, the witness planned to represent these locations using an animated illustration of the purported location of the Defendant's phone on a Google Earth Pro map.

The proposed presentation was precise and compelling. Too much so, as it turned out. That's because the sponsoring witness was not actually responsible for calculating or otherwise divining the areas where he said the Defendant's phone must've been when it transmitted a call or text message through a nearby tower. Nor could the witness explain how someone or something else charted those perimeters. The maps the Government wanted to show the jury were generated by a proprietary software program called TraX. The witness was involved in the maps' creation-but in a very limited capacity: he collected the phone-company records and uploaded them, in spreadsheet format, to the software that spat out the maps. The witness did not develop, study, or apparently even understand the algorithms or methodology that concluded a phone must've been on one side of a street, and not the other, when

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it transmitted a call or text message. Nor could he discuss the reliability, errors, or limitations of the software. To the witness, lawyers, and judge-like “most non-scientists, non-statisticians, and non-programmers”-the output appeared to emerge from “an indecipherable computer program,” which no one in the courtroom could examine or explain for the jury. Gissantaner, 990 F.3d at 463. Because this sort of testimony does not satisfy the standards for reliable expert opinion under Rule 702, the Court excluded the Government's use of and testimony about the TraX maps.

A. Procedural Posture

A grand jury charged Salvador Jones with robbing five federally insured banks in Louisville during the spring of 2021. See DN 1 (citing 18 U.S.C. § 2113(a)). At trial, the Government offered surveillance videos, witness testimony, recorded confessions, and incriminating statements (among other evidence) to prove its case. It also presented the testimony of Louisville Metro Police Officer Timothy O'Daniel. As indicated by a slide deck he disclosed to the Defendant and the Court, O'Daniel planned to testify regarding the location of Jones's phone around the time of each robbery. The deck contained maps showing shaded areas near the location of cell towers with which Jones's phone communicated-implying that Jones (or at least his phone) must've been somewhere within the marked areas. The Government apparently planned to admit, as exhibits for the jury, the slide deck as well as T-Mobile records detailing Jones's cell-tower connections.

Before trial, the Government identified O'Daniel as a witness-but not an expert witness subject to Federal Rule of Evidence 702 or Federal Rule of Criminal Procedure 16(a)(1)(G). At the final pretrial conference on September 30, the Court asked whether both sides agreed that O'Daniel should be treated as a lay witness. They did. To be sure, defense counsel expressed concern regarding the late disclosure of discovery material, including emails about O'Daniel's use of the TraX software. But his proposed remedy was a continuance (which his client resisted and the Court denied) rather than exclusion of any related testimony.

When trial began, the Government shared with the defense the exhibits O'Daniel planned to use during his direct examination. His proposed testimony, as reflected in the presentation and other exhibits, contained two main components: T-Mobile spreadsheets and TraX maps.^[2]

The spreadsheets contained cellphone records the Government received (by warrant) from T-Mobile. This showed the timing of calls and text messages from a cell number registered to Jones. Rows listed the phone number; the latitude, longitude, and street address of the cell tower with which the phone connected; the

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time and duration of the connection; and whether the call or text was ingoing or outgoing from Jones's phone.

The series of maps showed the locations of those towers, each surrounded by a shaded perimeter depicting its purported coverage area. This implied that Jones's phone was located within those perimeters when it connected with the tower in question. These Google Earth Pro maps also noted the locations of the robberies-. in each instance near the relevant cell tower at the relevant time. Pretty damning stuff.

The Government neither generated these maps nor received them from T-Mobile, however...