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United States v. Kemp

United States District Court, S.D. Indiana, New Albany Division

June 23, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
JEFFREY ANTIONE KEMP 01, LAWRENCE DUSEAN ADKINSON 02, Defendants.

          ORDER DENYING DEFENDANTS' MOTION IN LIMINE

          TANYA WALTON JUDGE United States District Court

         This matter is before the Court on a Motion in Limine to exclude any expert evidence concerning cellphone towers, dumping, pinging, or triangulation, filed by Defendants Lawrence Dusean Adkinson (“Adkinson”) and Jeffrey Antione Kemp (collectively, “Defendants”). (Filing No. 290.)[1] Defendants requested a hearing to determine the admissibility of any cellphone dumping, triangulation and pinging evidence pursuant to Rule 703 of the Federal Rules of Evidence and Daubert vs. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). On Wednesday, June 14, 2017, the Court held a Daubert hearing on the issues raised in the motion in limine, and, for the following reasons, the Defendants' Motion in Limine is denied.

         I. FINDINGS OF FACT

         On July 27, 2015, a T-Mobile retail store in Clarksville, Indiana was robbed by four Black males. Initially, two of the robbers entered the T-Mobile store posing as customers. Once the store was clear, the two robbers pulled out handguns and ordered the employees away from the counter and onto the floor inside the office. After receiving a cellphone call from one of the robbers within the store, two additional robbers entered the T-Mobile store and locked the doors. During the robbery, an employee overheard one of the robbers speaking into his cellphone stating they were “ready to go”. The four males then exited the store through the emergency exit located in the rear of the store.

         On July 28, 2015, a Verizon Wireless store in Lexington, Kentucky was robbed under similar circumstances as the Clarksville, Indiana T-Mobile store. Thereafter, from July 2015 through September 2015, several other retail cellphone stores throughout the Midwest area, were robbed in a similar fashion.

         As part of T-Mobile's Loss Prevention standard procedures, whenever a T-Mobile retail location, T-Mobile Premium Retailer, or a Metro PCS location reports a burglary or robbery, the Loss Prevention Investigations Team will pull ‘tower dumps' of all calls that were made on any T-Mobile tower in a small radius and time frame of the location. (Filing No. 320 at 5.) In addition, if information is received from other wireless companies about similar incidences, T-Mobile will also pull tower dumps of those events to aid in their investigation. Id. at 5-6. This data is analyzed by the loss prevention team to find any links/connections between each incident. Id. at 6. Based on its loss prevention policy, T-Mobile initiated a tower connection data dump for the Clarksville store robbery, as well as a tower connection data dump of the T-Mobile tower servicing the Verizon Wireless in Lexington. From the data dump, T-Mobile learned that a T-Mobile account with the cellphone number (708) 543-7900 was near both tower locations at the time of the robberies.

         FBI Special Agent Ronald A. Hornback, Jr. (“Agent Hornback”), Detective Nate Walls of the Clarksville Police Department (“Detective Walls”), and T-Mobile's Loss Prevention investigator, Scott Wohl (“Wohl”) conducted a conference call in which the loss prevention investigators informed Agent Hornback and Detective Walls that they had initiated a tower connection data dump of the T-Mobile tower servicing its store in Clarksville and the Verizon Store in Lexington, and the T-Mobile account with phone number (708) 543-7900 was near both tower locations during the commission of the robberies. (Filing No. 320 at 4, Filing No. 320-2 at 5). Wohl further stated that he determined the account associated with the number (708) 543-7900 was previously associated with a pre-paid T-Mobile account in the name of Lawrence Adkinson, however on July 7, 2015, Adkinson authorized the number (708) 543-7900 to be switched to a new subscriber, named Darcell Jones. Wohl also indicated that he located pictures of Adkinson via social media and the pictures were consistent with one of the robbers depicted in the Lexington robbery surveillance video.

         Several weeks later, on August 23, 2015, Wohl contacted Agent Hornback regarding the robbery of another T-Mobile store located in St. Louis, Missouri. Wohl explained that the (708) 543-7900 T-Mobile account cellphone number was near the store at the time of the robbery. Three days later, on August 26, 2015, Wohl again contacted Agent Hornback stating there was another armed robbery of a T-Mobile located in DeKalb, Illinois, which he believed was related to the previous three robberies because the (708) 543-7900 cellphone number was in the area at the time of the robbery.

         On September 3, 2015, the Government applied for and obtained an order, pursuant to 18 U.S.C. § 2703, to retrieve historical records for cellphone number (708) 543-7900, including call records and tower connection data. The historical connection data revealed that the (708) 543-7900 cellphone number was connected to cell towers near the time of other robberies across Illinois and in Hammond, Indiana. The Government then sought a precision location warrant for cellphone number (708) 543-7900. While drafting the application for a precision warrant, Wohl informed Agent Hornback that (708) 543-7900 was no longer active, but the equipment previously associated with cellphone number (708) 543-7900 was now utilizing the number (708) 262-6900. Based on this information, United States Magistrate Judge Van T. Willis issued a precision location warrant for cellphone number (708) 262-6900 on September 11, 2015 and T-Mobile was served with the warrant.

         Thereafter, Defendants were charged with Count 1: Conspiracy to Commit Robbery in violation of 18 U.S.C. § 1951(a), Count 2: Conspiracy to Brandish a Firearm in Furtherance of a Crime of Violence in violation of 18 U.S.C. § 924(o), Count 3: Robbery in violation of 18 U.S.C. § 1951(a), and Count 4: Brandishing a Firearm in Furtherance of a Crime of Violence in violation of 18 U.S.C. § 924(c). (Filing No. 48.) This matter is set for trial by jury on August 7, 2017.

         Adkinson filed a motion in limine challenging the admissibility of evidence concerning cellphone towers, dumping, pinging, or triangulation evidence and the testimony of any expert witness on this subject matter. In response, the Government asserts that admission of historical cell site connection data concerning cellphone tower, dumping, pinging and triangulation evidence is wholly supported by Daubert and case law within the Seventh Circuit. (Filing No. 332.) Thereafter, the Court scheduled a Daubert hearing. On April 7, 2017, the Government filed a notice of expert disclosure, (Filing No. 368), which provided disclosure of its cellular connection data expert witness and his proposed testimony. The Daubert hearing was held on June 14, 2017.

         II. LEGAL STANDARD

         A. Motion in Limine

         The Court excludes evidence on a motion in limine only if the evidence clearly is not admissible for any purpose. See Hawthorne Partners v. AT&T Technologies, Inc., 831 F.Supp. 1398, 1400 (N.D. Ill. 1993). Unless evidence meets this exacting standard, evidentiary rulings must be deferred until trial so questions of foundation, relevancy, and prejudice may be resolved in context. Id. at 1400-01. Moreover, denial of a motion in limine does not necessarily mean that all evidence contemplated by the motion is ...


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