USA Case Law-Daubert Challenges to Cell Site Analysis
There have been many challenges to the scientific reliability of cell site analysis in the United States. Both State and Federal courts have entertained the question of whether or not such analysis can be admissible against a criminal defendant. My research in many state and federal jurisdictions has revealed no case where the challenge to the admissibility of this opinion and evidence has been successful.
One such case opinion is here (apologies for the formatting mess)
IN THE UNITED STATES COURT FOR THE DISTRICT OF UTAH
UNITED STATES OF AMERICA,
Plaintiff, MEMORANDUM DECISION AND
ORDER DENYING DEFENDANT’S
DAUBERT MOTION TO EXCLUDE
JAMES EDWARD ALLUMS, Case No. 208-CR-30 TS
This matter is before the Court on Defendant’s Motion to Exclude Testimony of William
Shute, filed on November 3, 2008.1 Defendant is charged with violations of federal law related to
three robberies allegedly committed by Defendant. The government proposes to call William Shute
as an expert witness to testify regarding a technique whereby phone calls allegedly made from
Defendant’s cell phone around the time of the robberies can be used to determine the approximate
location of Defendant when making the calls. Shute testified at a Daubert2 hearing regarding the
methodology used in arriving at his conclusions. The Court finds the proposed testimony by Shute
1Docket No. 65.
2Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).
to be both reliable and relevant for the reasons set forth below and will deny Defendant’s Motion
I. STANDARD OF REVIEW
The United States Supreme Court has stated that Fed. R. Evid. 702 requires district courts
to act as gatekeepers in order to assure that all expert testimony is both reliable and relevant,3 and
has extended that gatekeeping role beyond scientific evidence to all expert testimony.4 Expert
testimony is to be admitted when the Court has determined that “the expert’s proposed testimony
is [specialized] knowledge, and . . . the evidence ‘fits’ the current issue and will assist the jury.”5
The Court must make a determination of reliability by inquiring “whether the reasoning or
methodology underlying the testimony is scientifically valid.”6 The Court must also make a
determination of relevance by inquiring “whether proposed testimony is sufficiently relevant to the
task at hand.”7 Because Defendant makes no claims regarding the relevance of Shute’s testimony,
the Court will deal only with the reliability of the proposed testimony.
Defendant, in the Superceding Indictment, is charged with (1) a Hobbs Act Robbery, in
violation of 18 U.S.C. § 1951(a), for allegedly robbing a Salt Lake County K-Mart Store; (2) Armed
Bank Robbery, in violation of 18 U.S.C. § 2113(a) and (d), for allegedly robbing a branch of the Salt
3Daubert, 509 U.S. at 589.
4Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 150 (1999); United States v.
Gabaldon, 389 F.3d 1090, 1098 (10th Cir. 2004).
5Daubert, 509 U.S. at 592.
6Norris v. Baxter Healthcare Corp., 397 F.3d 878, 884 (10th Cir. 2005).
Lake City School Credit Union; and (3) Attempted Armed Bank Robbery, in violation of 18 U.S.C.
§ 2113(a) and (d), for allegedly attempting to rob a Salt Lake County branch of Home Savings Bank.
The government has obtained what it alleges are the phone records for Defendant’s cell
phone, and has data regarding phone calls made from that cell phone on the days of the robberies.
In addition, the government has obtained data from the cell phone service provider, which contains
information regarding the cell tower to which the cell phone initially connected in placing the phone
At the February 24, 2009, hearing, Shute testified that he identified the originating cell tower
for each of the calls in question. Shute testified that he purchased a cell phone from the same service
provider as the Defendant and placed the phone into “engineering mode,” where the phone display
showed the cell tower to which it was currently connected. Using that phone and another device
called a Stingray, which also tracked which cell tower was the strongest at any geographical position,
Shute drove for some time around the neighborhoods surrounding the cell towers in question and
determined an approximate range for each cell tower. Specifically, Shute testified that he was able
to determine the approximate distance from the originating cell tower where the cell phone and
Stingray switched from the originating cell tower to another cell tower. Shute testified that this
method allows him to determine, with a reasonable degree of certainty, a fairly narrow geographical
location where an individual is located while a cell call is being placed.
Shute testfied that he has been a special agent with the FBI for nine years, and that his
specific expertise is in tracking people using cell tower records. He testified that he has undergone
two official FBI training courses on how cell technology and cell networks function, as well as five
additional training courses on radio frequency theory and the equipment needed for tracking and
analyzing cell calls. He also testified that he is currently working on a Masters degree in geospatial
technology at Pennsylvania State University.
Regarding the method utilized in this case, Shute testified that he has used it three hundred
times, and that he has provided cell phone analysis similar to this in thirty-five cases, testifying as
an expert eight times in five different courts. He testified that he functions as an instructor for the
FBI in cell technology tracking, instructing other agents on how to utilize the methodology. He has
taught a three-day course five times, and those he has trained have used the methodology over five
The Supreme Court, in Daubert, laid out four general criteria for determining the validity of
an expert’s methodology (1) whether the theory has been or can be tested or falsified; (2) whether
the theory or technique has been subject to peer review and publication; (3) whether there are known
or potential rates of error with regard to specific techniques; and (4) whether the theory or approach
has general acceptance.8
The Court finds that the methodology utilized by Shute is reliable. The methodology has
been utilized in hundreds of prior investigations, allowing the FBI to use cell tower data to
successfully track and apprehend fugitives. The methodology has therefore been tested, and has
general acceptance in the area of law enforcement. While Shute was not able to identify any peerreview
process that the methodology has undergone, nor the rates of error, the Court finds that the
success achieved by Shute and others in catching fugitives while using this methodology is sufficient
to establish the methodology’s reliability.
8Daubert, 509 U.S. at 593-94.
Defendant argues that tracking fugitives is not the same as analyzing historical data, but
Shute testified that once a cell call has been placed, it becomes historical data, so the available data
is precisely the same, and that the analysis is also the same.
Defendant argues that Shute did not account, in his analysis, for weather conditions or the
possibility of high call volumes on the days that Defendant allegedly placed the calls. Defendant
also argues that the nature of cell tower signals is such that a cell tower at a much longer distance
from the cell caller could be the originating cell tower if a number of plausible circumstances were
in play. Defendant also points out that one of the cell towers allegedly utilized by Defendant’s cell
phone was torn down prior to Shute’s 2008 analysis, and that Shute had previously stated that he
needed to be able to physically inspect the cell tower in order to complete his analysis. These
arguments, and others that might cast doubt on Shute’s conclusions in this specific case, are
legitimate questions that would be appropriately raised on cross-examination of Shute, at trial.
However, they do not override the Court’s finding that Shute’s methodology is reliable under
Defendant raises questions regarding whether Shute should be qualified as an expert, arguing
that Shute’s training has been limited to “a grand total of seven weeks and four hours of training”
and that Shute has not provided evidence of (1) accreditation or certification of the training classes;
(2) Shute’s own accreditation or certification in the area of alleged expertise; or (3) the textbooks
used in the training classes.9 In short, Defendant argues that Shute’s experience does not rise to the
level of specialized skill, required to qualify him to offer expert testimony. The Court disagrees.
The evidence shows that Shute has been trained by law enforcement agencies and other related
9Docket No. 130 at 5.
entities on the methods used daily by those agencies. The evidence also shows that Shute has
successfully used the methodology which is the subject of the proposed expert testimony in over
three hundred cases, and that law enforcement personnel trained by Shute have successfully used the
methodology in over five hundred cases. The Court finds that Shute has sufficient specialized skill
to be qualified as an expert for the purposes of his proposed testimony.
It is therefore
ORDERED that Defendant’s Motion to Exclude Testimony of William Shute (Docket No.
65) is DENIED.
DATED March 24, 2009.
BY THE COURT
United States District Judge
Here is the text of the defendant's arguments to exclude the expert opinion of the FBI agent doing the cell site analysis
STEVEN B. KILLPACK, Utah Federal Defender (#1808)
VANESSA M. RAMOS, Assistant Federal Defender (#7963)
KRISTEN R. ANGELOS, Assistant Federal Defender (#8314)
UTAH FEDERAL DEFENDER OFFICE
46 West Broadway, Suite 110
Salt Lake City, Utah 84101
Telephone (801) 524-4010
Facsimile (801) 524-4060
Attorneys for Defendant
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
UNITED STATES OF AMERICA, DEFENDANT’S MEMORANDUM IN
SUPPORT OF MOTION TO EXCLUDE
TESTIMONY OF WILLIAM SHUTE
Case No 208-CR-030-TS
Defendant, James Allums, by and through his attorneys, Vanessa M. Ramos and Kristen
R. Angelos, submits this Memorandum in Support of Motion to Exclude the Testimony of
William Shute, and requests that this Court exclude from trial the purported scientific evidence to
be offered by Agent Shute.
This Court Should Decline to Qualify Agent Shute as an Expert Witness, and
Should Exclude From Trial Any Expert Testimony From Agent Shute.
Rule 702 of the Federal Rules of Evidence allows expert testimony as follows
If scientific, technical, or other specialized knowledge will assist the trier of fact to
understand the evidence or to determine a fact in issue, a witness qualified as an expert by
knowledge, skill, experience, training, or education, may testify thereto in the form of an
opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the
testimony is the product of reliable principles and methods, and (3) the witness has
applied the principles and methods reliably to the facts of the case.
F.R.E. 702. The Supreme Court has interpreted this to mean that only expert testimony that is
both reliable and relevant is admissible. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S.
579, 589 (1993). It has thus charged district courts with acting as gatekeepers to “assess the
reasoning and methodology underlying the expert’s opinion, and determining whether it is
scientifically valid and applicable to a particular set of facts. Alfred v. Caterpillar, Inc., 262 F.3d
1083 (10th Cir. 2001)(citing Goebel v. Denver & Rio Grande W.R.R. Co., 215 F.3d 1083, 1087
(10 Cir. 2000)).
To fulfill this gatekeeping role, the district court must undertake a two-part inquiry; first,
the district court must determine whether the expert’s proffered testimony has a “reliable basis in
the knowledge and experience of his discipline.” Daubert, 509 U.S. at 592; Bitler v. A.O. Smith
Corp., 391 F.3d 1114, 1120 (10th Cir. 2004). Second, the court must also determine whether the
proposed testimony is sufficiently “relevant to the task at hand.” Daubert, 509 U.S. at 597;
Bitler, 391 F.3d at 1121. The district court has broad discretion in making these determinations.
United States v. Sparks, 8 Fed.Appx. 906 (10 Cir. 2001). The party offering the experttestimony bears the burden of establishing, by a preponderance of the evidence, the qualification,
reliability, and helpfulness of the testimony. United States v. Frazier, 387 F.3d 1244, 1260 (11th
Cir. 2004); In re Paoli RR Yard PCB Litig., 35 F.3d 717, 744 (3d Cir. 1994). Here, Mr. Allums
does not challenge the relevancy of Mr. Shute’s testimony, but rather, only its reliability.
In determining whether the proffered testimony is sufficiently reliable, the court must
examine “whether the reasoning or methodology underlying the testimony is scientifically valid.”
Daubert, 509 U.S. at 592-93; Bitler, 391 F.3d at 1120. Accordingly, the proffering party must
show that the method employed by the expert in reaching his conclusion is scientifically sound
and that the opinion is based on facts. Bitler, 391 F.3d at 1120 (citing Mitchell v. Gencorp Inc.,
165 F.3d 778, 781 (10th Cir. 1999)). In determining whether an expert’s reasoning and
methodology are valid, the Supreme Court has suggested that a district court consider several
factors, including (1) whether the theory has been or can be tested or falsified; (2) whether the
theory or technique has been subject to peer review and publication; (3) whether there are known
or potential rates of error with regard to specific techniques; and (4) whether the theory or
approach has “general acceptance.” Daubert, 509 US. at 593-94; Bitler, 391 F.3d at 1120.
However, this list is neither exhaustive nor definitive, and the court’s inquiry should be a flexible
one. Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 149-52 (1999); Daubert, 509 U.S. at
594. Nevertheless, “any step that renders the analysis unreliable … renders the expert's testimony
inadmissible.” Mitchell, 165 F.3d at 782.
Even where a proffered expert is clearly an expert and is supremely qualified, it does not
necessarily follow that his reasoning and methodology are also qualified and reliable. In Kuhmo,
the Supreme Court upheld that district court’s application of the Daubert factors to exclude an
expert’s testimony, despite the expert’s excellent qualifications. 526 U.S. at 153 (“The District
Court did not doubt [the expert’s] qualifications . . . Rather, it excluded the testimony because,
despite those qualifications, it . . . found unreliable, the methodology employed by the expert . . .
and the scientific basis, if any, for such an analysis.” (internal quotations omitted)). Thus, even if
an expert is clearly qualified as an expert, the court must still conduct a thorough analysis of the
expert’s actual work, and not simply rely on his qualifications as an expert.
Additionally, when the proffered expert’s testimony is not necessarily scientific, the same
exacting standards apply. Rule 702 “rejects the premise that an expert’s testimony should be
treated more permissively simply because it is outside the realm of science. An opinion from an
expert who is not a scientist should receive the same degree of scrutiny for reliability as an
opinion from an expert who purports to be a scientist.” Fed. R. Evid. 702 advisory comm. note;
see also Kumho, 526 U.S. at 149–52. Thus, even if the proffered expert is not a “scientist,” his
work and methodologies must still be carefully scrutinized.
Prior to offering expert testimony, the witness must be qualified by the court as an expert.
To be qualified as an expert, a witness must have “specialized knowledge” regarding the area of
testimony. F.R.E. 702; Bratt v. Western Air Lines, 155 F.2d 850 (10th Cir. 1946); Elcock v.
Kmart Corp., 233 F.3d 734 (3d Cir. 2000). The basis of this specialized knowledge can be
practical experience as well as academic training and credentials, however, “at a minimum, a
proffered expert witness … must possess skill or knowledge greater than the average layman….”
Id. at 741. The witness’ own belief that he is an expert is of no importance, as it is the trial court
that must make the expert determination, not the witness himself. Watson v. United States, 485
F.3d 1100, 1105 (10th Cir. 2007). Moreover, the fact that a witness has previously qualified as an
expert is “irrelevant to the determination whether he is qualified to give such testimony in this
case.” Elcock, 233 F.3d at 744 n.5 (citing Thomas J. Kline, Inc. v. Lorillard, Inc., 878 F.2d 791,
800 (4th Cir.1989)(“t would be absurd to conclude that one can become an expert simply by
accumulating experience in testifying.”)).
Here, there are grave concerns about whether Agent Shute is qualified as an expert
witness, as well as about the reasoning and methodology underlying his opinions. While an FBI
agent, Agent Shute has taken classes, and even teaches on the subject of cell phone technology.
Tr. Ev. Hrg. Feb. 24, 2009 at 8-9; 1520-25. However, the classes were either only two weeks,
one week, or four-hours long, for a grand total of seven weeks and four hours of training to
become a self-proclaimed expert in the field of cellular technology. Id. at 49-51. Moreover,
none of the courses he took were accredited or certified to any definable standards; in fact, he
testified that no such certification even exists. Id. at 536-11. Nor does Agent Shute have any
accreditations or certifications himself in the areas upon which he wants to testify. Id. at 5314
16. Some of the classes he has taken offered some sort of reading material or coursebook, but the
only one Agent Shute could remember was “something to the effect of GSM made simple.” Id. at
5116-21. Agent Shute has a degree in psychology, not engineering or mathematics, and has
never worked for a cell phone company. Id. at 525-12. He has no training in gathering records,
nor is there any training offered. Id. at 5213-23.
Although Agent Shute has some experience with cell phone technology, it does not rise to
the level of a “specialized skill” needed to qualify him as an expert on cell phones and cell phone
technology. He has no formal education in this area, and has never worked for a cell phone
company. Rather than taking multiple programs or courses through an accredited university or
other training program, that has definable standards, or accreditation requirements through some
national entity, Agent Shute has instead taken a few scattered classes from different groups
without any sort of accreditation or other definable standards, and which do not result in any sort
of certification for Agent Shute. The coursework of these classes also does not qualify Agent
Shute as an expert; reading “GSM made simple” does not make him an expert any more than
reading “Taxes for Dummies” and preparing yearly tax returns makes the average citizen an
expert on taxes. Nor is Agent Shute’s own belief that he is an expert or his prior qualifications as
an expert sufficient to render him an expert witness. See Watson, 485 F.3d at 1105 (trial court
makes expert determination); Elcock, 233 F.3d at 744 n.5 (prior qualifications “irrelevant” to
Agent Shute clearly has experience dealing with cell phones, but so does much of the
American public. Recent advances in technology and the large-scale distribution of information
regarding new features on cell phones have educated the American public to a level where they
know about and understand cell phones and how they work. Agent Shute’s experience is neither
specialized skill, nor does it rise to a level “greater than the average layman.” As such, Agent
Shute should not be qualified as an expert by this Court, and should not be allowed to give expert
testimony at trial.
Even if this Court determines that Agent Shute does qualify as an expert, it still must
carefully question his reasoning and methodology, and should still exclude his testimony on this
basis. In essence, Agent Shute testified that he obtained the phone records from Cricket, drove
around the robbery areas with his own cell phone, and then determined that Mr. Allums had been
in the area at the time of the robberies. How he reached this conclusion, however, is suspect.
Agent Shute testified that this was the first case in which he has worked with Cricket, Mr.
Allums’ cell phone provider, and that he has not had weekly contact with Cricket, as he has with
other providers. Tr. at 622-7. Moreover, Cricket does not operate in Philadelphia, where Agent
1 In the first substantive question asked of him by the Government, Agent Shute testified
that he was an expert, perhaps hoping to influence the Court from the first available moment into
finding him qualified to testify as an expert. See Tr. at 723-81 (“Q On that task force, do you
have a special assignment….? A I have a particular expertise in cell phone technology….”).
Agent Shute later testified that eight of the nine times he has attempted to qualify as an expert, he
has, and then rushed to explain that the only reason he wasn’t an expert in the ninth case was
because of a proffer agreement between the prosecutor and defense attorney. Id. at 201-3.
Shute is based, so he has no professional familiarity with Cricket. Id. at 628-12. Moreover,
Cricket does not provide law enforcement with the same amount or type of data that the other
carriers - those with whom Agent Shute is accustomed to working with - provide; Cricket records
do not provide information about which cell tower the cell call terminates from. Id. at 6319-25.
Moreover, when Cricket provides these call detail records to requesting individuals, they include
a written summary entitled “How To Read Cricket Call Detail Records” which specifically state
that “call detail records . . . do not indicate the location of the handset in relation to any cell site”
and “do not indicate which was the closest tower to the handset.” These are two erroneous
assumptions, that the location of the handset is in the cell site and the handset is hitting the
closest tower, that Agent Shute basses his conclusions on. [See attached, Defendant’s Exhibit A,
page 2]. Further, even if Cricket uses the same network as providers that Agent Shute was
familiar with, he was still working with a previously-unknown company and less information
than he was used to.
Agent Shute also based all his conclusions on the assumption that the information he
received from Cricket was correct. Id. at 6513-16; 754-6. And yet, he had no information from
Cricket as to whether the records were accurately kept, and had no information regarding whether
there was trouble with Cricket’s network or towers at the time Mr. Allums’ phone was hitting the
towers. Id. at 4514-16; 6519-23; 6610-15. Agent Shute also testified that numerous things
could interfere with cell tower coverage. Such things could include the weather, the “traffic” or
call volume on any given tower, other buildings or obstructions, maintenance problems with the
tower, or atmospheric conditions. Id. at 343-5; 674-9; 7424-752. However, this data is not
preserved in the call detail records. Accordingly, Agent Shute had no information about the
weather conditions on the days of the robberies, no information about the call volume of the cell
towers in question, no information about buildings or obstructions, no information about
problems with the tower maintenance, or any of the other things he indicated may interfere with
cells phone and tower coverage. Id. at 6616-673; 6822-25; 691-3; 7424-752. A damaged
phone could also interfere with the call and yield different tower results for the same location,
and yet Agent Shute had no information about the type of phone Mr. Allums had, nor its
condition at the time of the robberies. Id. at 7520-763; 791-2. He simply went out and bought
a new cell phone and used this new cell phone, not Mr. Allums’ actual cell phone to make his
conclusions. Id. at 31. Instead of verifying the presence or lack of any of the potential
problems or getting further information, Agent Shute simply assumed that each call was made
from a properly-functioning and undamaged cell phone, and assumed that each call was
unobstructed by weather, traffic volume, or other buildings, and assumed that each call hit a
properly maintained and functioning cell tower, and assumed that each call hit the nearest tower
rather than a stronger tower some distance away. Id. at 745-23. Such assumptions clearly erode
the basis of Agent Shute’s methodology and conclusions.
Moreover, one of the towers, (tower 52) that logged the calls from Mr. Allums’ phone
was no longer present when Agent Shute conducted his experiment. Interestingly, Agent Shute’s
testimony changed dramatically with respect to this critical component of his analysis. He first
testified that part of his analysis involves going to the actual tower in person and looking at,
observing the physical orientation of the tower, and taking actual readings from that tower. Id. at
823-11. He also agreed that you can’t take readings from a tower that is not longer there. Id. at
8212-14. He even testified that “when I come here to Salt Lake City, an area or market that I’m
not familiar with, I think it’s imperative to go to the tower, verify its existence, then verify both
by sketching it out as well as taking certain gear to test it to be able no [sic] measure the exact
orientation of that tower, which is what I did in this case.” Id. at 249-14. He was also confronted
with his own testimony from prior cases where he testified that “to be accurate…you have to go
the tower and verify its existence. You know, I can’t see it any other way of being able to be a
legitimate person who would testify to this unless you did the things that I did.” Id. at 8419-24.
He also testified previously that “I told them that I needed to come here and verify the tower
existence and the cell site sectors or else I wouldn’t feel comfortable in testifying to it in court.”
Id. at 8612-14. Clearly, physical observation of the actual tower is critical to the analysis.
However, when Agent Shute was confronted with the fact that the tower in question was no
longer physically present when he came to Salt Lake to perform his analysis in this case, he
inexplicably asserted that he could do it without the tower. Id. at 8219-23. And, he later asserted
that he had never made any mistakes in any of his analysis of cell data. Id. at 811-3. The
changing testimony and arrogance in his conclusions undermines the reliability of his work, as
well as his credibility as a witness, expert or not. Scientific reliability is based on error and
Even assuming all the information that Agent Shute received was perfectly correct, there
are still other factors that could influence which tower a cell phone utilizes that would skew
Agent Shute’s data and conclusions. For instance, Agent Shute testified that a cell phone doesn’t
necessarily hit the closest tower, but hits the tower with the strongest signal. Id. at 6918-25.
Additionally, some towers can project their reach to a distance of 22 miles. Id. at 8019-23. And
even if a cell phone is hitting a certain part of a certain tower, it cannot be determined with any
specificity how close the phone is to that tower. Id. at 699-12. Additionally, line of sight is
important, as a cell phone may skip a closer tower in favor of a more distant one to which it has a
direct line of sight. Id. at 7512-18. It can also just be pure luck of the draw as to which cell
tower a phone goes to; if two people are sitting in the same car with the same phone and make
calls at the same time, those two calls could go to two different towers. Id. at 7717-781. Or if
two people were in the same home with the same phone, one may get a signal while the other
doesn’t. Id. at 782-7.
These myriad of factors make it extremely difficult, if not impossible, to precisely
pinpoint the exact location of a cell phone when a call is made. Even one of the above-mentioned
factors could occur in any of the multiple phone calls made and skew the data. Even if Agent
Shute were able to work miracles in this case - given the unknown conditions, possible
interferences, missing tower, lack of knowledge on the type of phone, possibility of inaccurate
records to begin with - this case is still markedly different from the other cases he has done. In
his previous cases, Agent Shute culled through some 30-60 days worth of call data in order to
establish patterns in hopes that he could predict where a fugitive or child kidnapper or carjacker
would be located and found. Id. at 548-17; 73. While he looks for patterns, he more specifically
looks to see where the most recent call was in order to locate the person right now. Id. at 559-18.
He looks for the “most frequently hit calls, the most frequently hit towers, the most frequently hit
at a specific time of day,” all in attempt to determine the person’s current location. Id. at 5523
563. In looking at recent call history, including up to the minute calls, Agent Shute analyzes his
data for predictions on current activity and location. In contrast, in this case, Agent Shute looked
at a three-hour period on a single day on a single cell tower from a year previous. Id. at 562110
575. Instead of trying to predict current activities or location based on a pattern, Agent Shute
attempted to recreate the movements of Mr. Allums’ phone and map them back to the site of the
robbery. Agent Shute testified that he could not perform the same actions in this case as he has in
earlier cases, because there was no recent call to trace. Id. at 7316-17. Rather than simply
repeating a method he has used countless times in the past, Agent Shute in this case employed an
entirely new method to reach his conclusions. Unfortunately, newness is not a hallmark of
scientifically-proven and sound principles.
And as this entire case clearly demonstrates, there is simply no science or proven facts
involved, nor any of the factors suggested by the Supreme Court as evidence of reliability.
Although the list is a flexible one, it seems apparent that at least some of the following factors
should be present in assessing the reliability of expert testimony whether the methods can be or
has been tested or falsified, has been subject to peer review and publication, has known or
potential rates of error, or has gained “general acceptance.” Daubert, 509 US. at 593-94; Bitler,
391 F.3d at 1120; Kumho, 526 U.S. 149-52. Rather, as Agent Shute’s testimony made clear, there
is simply nothing to support his methods and reasoning. When questioned whether there was
scientific tests supporting the closest/strongest signal theory or that had errors or probabilities, he
responded no. Tr. at 7012-19. When questioned whether there was scientific tests documenting
the things that could interfere with signals, he said no. Id. at 7021-23. When questioned whether
there were scientific tests to determine the range of radio waves with specific written findings, he
said no. Id. at 7024-718. And when he later attempted to say there were such tests, he had to
admit he didn’t have any personal knowledge of those tests. Id. at 719-11. When questioned
whether there were scientific tests showing radio waves hitting towers at substantial distances, he
said he was aware of that happening, but not of any tests. Id. at 7112-20. And again, the answer
was no in response to scientific tests studying the frequency with which cell signals are
redirected. Id. at 7125-726. And to the extent that any such tests may have been done, Agent
Shute is not a scientist and did not rely on them in creating and conducting his methodology,
because he was not aware of any such tests. Id. at 725-8, 16-17. Moreover, Agent Shute has not
performed any type of research or tests on his own where he made determinations about error
rates. Id. at 7218-731. Nor has he submitted his analysis or conclusions to anyone in the
scientific community. Id. at 8124-822. Clearly, there is no such testing done of these methods,
at least none that has been subject to publication and peer review, two of the hallmarks of
reliability. Nor has there been any evidence that Agent Shute’s methods were screened for
potential error, or have been generally accepted, nor is there any way to know if the results have
been or can be tested or falsified.
Simply put, Agent Shute’s methods of tracking and using cell phone data are not reliable.
They begin with unknown reliability of the records he is using, are based on numerous
assumptions, discount the possibility of any number of interfering agents, do not account for
missing yet necessary infrastructure, and have no way of being checked. Moreover, Agent Shute
was working with a new method, different from his prior cases, with a new data-provider, and
with less data than he was accustomed to. Further still, he could present nothing - and it is the
Government’s burden to present any such evidence - supporting his methods as generally
accepted by the community, having been peer-reviewed, tested for falsities or error probability,
or having any sense of reliability other than his own declarations. Absent much more than this,
the Court should find that Agent Shute’s methodology and reasoning are not reliable, and
exclude his testimony from trial.
A recent Tenth Circuit case shows that failure to satisfy even some of the Daubert factors
- as is the case here - mandates exclusion. In United States v. Ellis, the defendant challenged the
admissibility of expert testimony regarding the amount of drugs seized from his person. 193 Fed.
Appx. 773 (10 Cir. 2006). The testimony was admitted, and on appeal, the Tenth Circuit foundthat the admission was erroneous. Id. Specifically, the Court found that the defense attorney had
established that the technique had not been tested for uniformity, that there had not been peer
review or publication on this matter, and that there was at least a possibility of error. Id. Thus, the
admission was error, however, because the error was harmless, the case was affirmed. Id. As in
our case, failure to show even some reliability under the Daubert factors requires exclusion at
Even if the Court were to determine that Agent Shute’s methods need not be scientifically
sound and are instead supported solely by his experience, they must still be subject to the same
scrutiny as any true scientific method. Rule 702 “rejects the premise that an expert’s testimony
should be treated more permissively simply because it is outside the realm of science. An opinion
from an expert who is not a scientist should receive the same degree of scrutiny for reliability as
an opinion from an expert who purports to be a scientist.” F.R.E. 702 advisory comm. notes; see
also Kumho, 526 U.S. at 149-52. The requirements of Rule 702 are not met merely by references
to qualifications and experience; bare qualifications and experience alone do not, and cannot,
establish the admissibility of expert testimony. See, e.g., Kumho, 526 U.S. at 153 (“The District
court did not doubt [the expert’s] qualifications…Rather it excluded the testimony because,
despite those qualifications, it …found unreliable, the methodology employed by the expert…and
the scientific basis, if any, for such an analysis.”)(internal quotations omitted). If qualifications
and experience were sufficient to establish reliability, expert testimony would per se be
admissible as long as the testifying party qualified an expert; this result is clearly not acceptable,
or else Rule 702 could be cut in half and Daubert excised from our history. Thus, even if Agent
Shute is experienced, his methods must still be subject to same strict scrutiny applied to all other
expert testimony, and consequently, excluded from trial.
Finally, Mr. Allums encourages this Court to view the Government’s expert testimony
with a skeptical eye, if only because of recent findings made by the National Academy of
Science. In an extensive report published only weeks ago, the Academy criticized the quality of
forensic science around the country, and criticized courts for continuing to rely on such evidence
without fully understanding or addressing the various limitations of the difference disciplines.
See National Research Council of the National Academies, Strengthening Forensic Science in
the United States A Path Forward, (2009), available at www.nap.edu/catalog/12589.html.
Noting the “dearth of peer-reviewed, published studies,” the Academy found that “at least in
criminal cases, forensic science evidence is not routinely scrutinized pursuant to the standards of
reliability enunciated in Daubert[,] … and courts often ‘affirm admissibility citing earlier
decisions rather than facts established at a hearing.’” Id. at S-6; 3-17– 3-18. Specific problems
with this type of evidence include the absence of adequate training and continuing education,
rigorous mandatory certification and accreditation programs, adherence to robust performance
standards, and effective oversight. Id. at S-5.
In overview, the Academy stated,
The methods and culture of scientific research enable it to be a self-correcting enterprise.
Because researchers are, by definition, creating new understanding, they must be as
cautious as possible before asserting a new “truth.” Also, because researchers are working
at a new frontier, few others may have the knowledge to catch and correct any errors they
make. Thus, science has had to develop means of revisiting provisional results and
revealing errors before they are widely used. The processes of peer review, publication,
collegial interactions (e.g., sharing at conferences), and the involvement of graduate
students (who are expected to question as they learn) all support this need. Science is
characterized also by a culture that encourages and rewards critical questioning of past
results and of colleagues. Most technologies benefit from a solid research foundation in
academia and ample opportunity for peer-to-peer stimulation and critical assessment,
review and critique through conferences, seminars, publishing, and more. These elements
provide a rich set of paths through which new ideas and skepticism can travel and
opportunities for scientists to step away from their day-to-day work and take a longer-
term view. The scientific culture encourages cautious, precise statements and discourages
statements that go beyond established facts; it is acceptable for colleagues to challenge
one another, even if the challenger is more junior. The forensic science disciplines will
profit enormously by full adoption of this scientific culture.
Id. at 4-11. Agent Shute’s methods clearly evidence the concerns that the Academy was
addressing - lack of peer review, publication, even discussion at a professional level where
critical analysis can occur and result in more sound and proven theories. The Academy warns
against routine admission of expert evidence, and suggests that far more critique is needed. This
case is a prime example, and Agent Shute’s methods simply do not stand up to the rigorous
requirements of expert testimony.
In offering expert testimony from an expert witness, the Government bears the burden of
establishing both the qualifications of the expert, and the reliability of the witness’ methods.
Neither has been satisfactorily shown here. Agent Shute is perhaps a practicer of cell phone
technology, but he is certainly not an expert. His lack of education or credentialing and the lack
of accreditation by the courses he has taken, along with the fact that he has no specialized skill or
knowledge above and beyond that of the average person, all combine to indicate that he is not an
expert, and should not be qualified as such by this Court. Even if he is considered an expert, his
methods and reasoning are untested, based on multiple assumptions and fail to account for
numerous potential interfering agents, and are simply unreliable, especially given that they have
not been published, or subject to any sort of peer-review. The methods Agent Shute uses are
simply not reliable, and he should not be allowed to testify regarding them. Accordingly, Mr.
Allums respectfully request that this Court decline to qualify Agent Shute as an expert witness,
and exclude his testimony from trial.
DATED this 10th day of March, 2009.
/s/ Vanessa M. Ramos
Vanessa M. Ramos
Assistant Federal Defender
/s/ Kristen R. Angelos
Kristen R. Angelos
Assistant Federal Defender
And here is the government's reply to the defendant's challenge to the admissibility of the cell site analyst's opinion
BRETT L. TOLMAN, United States Attorney (#8821)
CY H. CASTLE, Assistant United States Attorney(#4808)
WILLIAM KENDALL, Assistant United States Attorney(#7906)
185 South State Street, Suite 300Salt Lake City, Utah 84111
Telephone (801) 524-5682Facsimile (801) 524-6924
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH, CENTRAL DIVISION
UNITED STATES OF AMERICA,
REPLY TO DEFENDANT’S
RESPONSE TO MOTION IN
LIMINE OF UNITED STATES TO
USE DEFENDANT’S CRICKET
vs. CALL DETAIL RECORDS
JAMES EDWARD ALLUMS,
Judge Ted Stewart
The United States, through the undersigned Assistant United
States Attorneys, files this reply to defendant’s response to
motion in limine of United States use defendant’s Cricket call
Correction to Government’s Approach to Introducing
Cricket’s Call Detail Records
Since filing its original motion, the government has learned
that Cricket’s call detail records for any of its customers, is
not a document it prepares in terms of the information contained
in the call detail records.
What the government has learned is that VeriSign Corporation
(now Convergys) a third party company, is the company Cricket had
hired in 2007 and 2008 to collect, translate and report cell
phone data upon request to Cricket .
When it is requested to produce a call detail record for a
particular customer from law enforcement, the Cricket Subpoena
Compliance Team accesses a web portal that VeriSign has made
available to Cricket to search VeriSign’s records based upon a
customer’s cell phone number and geographical region. The search
by the Cricket Subpoena Compliance Team then creates the
information contained in the Cricket call detail records,
including tower numbers and sector regions related to the use of
cell phones by Cricket customers.
The government is relying upon the defendant’s call detail
records to place his cell phone handset within the areas of the
robbery locations. The government intends to introduce these
records through Michael Vlassis, an employee at VeriSign, and a
member of the Cricket Subpoena Compliance Team.1 The call detail
records provide the location of the towers and sectors utilized
by the defendant’s cell phone.
The government also intends to call Michael Tycer, a Senior
RF Engineer employed by Cricket since 2001, to testify about
tower locations, tower ranges and sector regions and about
The government filed a Notice of Expert Witness forMichael Vlassis on March 2, 2009.
whether the towers were functioning properly in 2007.2
The government does not intend to call Special Agent William
Shute to introduce Cricket’s call detail records for the
defendant. Special Agent Shute does not posses any first hand
knowledge or information about how VeriSign collects and reports
the cell phone data it collects from Cricket’s cell towers or how
it reports that cell phone data to Cricket for Cricket’s call
detail records. Nor does he possess any first hand knowledge
about whether Cricket’s cell phone towers were functioning
properly in 2007.
On October 23, 2007, the date of the K-Mart robbery, the
defendant’s call detail records show that he made twelve calls.
Five of those calls were to Don Mumford, the defendant’s 20-year
friend. Mumford’s number was dialed at 191456, 210140,
210938, 214507 and 221832. See attached call detail
record.3 The robbery occurred at approximately 2100.
The call detail records show that defendant’s cell phone
made two calls to Don Mumford on November 15, 2007, the date of
The government filed a Notice of Expert Witness forMichael Tycer on March 3, 2009.
The defendant misstates the information on the call
detail records when he claims that he made one call to Mumford
two hours before the K-Mart robbery. The call was approximatelyforty-five minutes before the robbery.
the Salt Lake School Credit Union robbery. One at 165031 and a
second at 175340. See attached call detail record. The
robbery occurred at approximately 1630.
Defendant’s Cell Phone Calls to Don Mumford are Relevant to
Establish the Defebdant was the Robber.
FRE 402 provides that all relevant evidence is admissible.
“‘Relevant evidence’ means evidence having anytendency to make the existence of any fact that is ofconsequence to the determination of the action moreprobable or less probable than it would be without theevidence.”
"Relevancy is not an inherent characteristic of any item of
evidence but exists only as a relation between an item of
evidence and a matter properly provable in the case." Advisory
Committee's Notes on Fed. Rule Evid. 401, quoted in Huddleston v.
United States, 485 U.S. 681 (1988); see also United States v.
Vallejo, 237 F.3d 1008, 1015-16 (9th Cir. 2001).
The defendant has placed his identity as the key issue in
this case. His cell phone is a key piece of evidence
establishing he was the robber.4
Assuming the defendant’s cell phone hand set was used in the
area of the robbery locations, the government must prove that the
The government has other direct and physical evidenceit intends to offer at trial that the defendant is the robber.
defendant was the one who was using his cell phone.
One way to show that the defendant was the one who used his
cell phone, is to show the calls on the call detail records were
made to people who the defendant knew and who knew the defendant.
This evidence is relevant to prove the defendant’s identity as
the robber under FRE 401.
As a first step in the analysis of relevancy, the focus
should be on who the defendant’s own call detail records show he
called before and after the robberies, not upon someone’s memory
about which calls were answered and what was discussed if the
calls were answered. The call detail records unquestionably show
that the defendant’s cell phone repeatedly called Mumford on
October 23, 2007 and November 15, 2007.
What we do know is that Don Mumford has been a friend of the
defendant’s for 20 years. The defendant knew Mumford and Mumford
knew the defendant. We also know that the defendant talked to
Mumford about buying drugs and Mumford sold him drugs during the
period of the robberies five or six times. It was the defendant
who had a reason to know Mumford’s number so he could buy drugs.
Defendant’s own call detail records show that his cell phone
called Don Mumford’s phone number more than a 110 times during
the robberies. We have no evidence that anyone else had
possession of or used the defendant’s cell phone during the
robberies such as his sister, his brother or a stranger.5
This evidence is relevant because it has a tendency to make
the determination more probable that the defendant was the robber
of the K-Mart and Salt Lake City School Credit Union than it
would be without the evidence.6
The defendant claims that allowing in this evidence would
result in the naked stacking of inferences against the defendant
by the jury. The defendant presents this claim as though this is
only evidence the government has against the defendant. This is
simply not true. The call detail records are just one piece of
the evidence the government will offer. The government has
common modus operandi evidence, voice recognition evidence,
clothing evidence, common physical description evidence, shoe
print evidence, bank surveillance evidence, false alibi claim
evidence and plans by defendant to tamper with witness evidence,
Because of the defendant’s relationship with Mumford,
repeated calls to Mumford and defendant’s exclusive use of his
cell phone, this evidence is relevant in determining whether the
defendant is the robber of K-Mart and the Salt Lake City School
The defendant’s family members have reported to the FBIthat only the defendant used his cell phone.
The evidence the government would solicit from Mumfordat trial would be that his is a long time friend of thedefendant’s, the defendant called frequently, they spoke on thephone and what his telephone number was. The call detail records
would speak to the number of calls made by the defendant toMumford.
By placing identity as the key issue in this case, the
defendant has made his cell phone calls to Don Mumford one piece
of relevant for the jury to consider in determining whether the
defendant robbed the K-Mart and Salt Lake City School Credit
Union. This evidence is critical to the government in proving
Therefore, the government requests the Court to grant its
Dated this 9th day of March, 2009.
BRETT L. TOLMAN
United States Attorney
/s/ Cy H. CastleCy H. CastleWilliam K. Kendall
Assistant U.S. Attorneys DATED this
This is really interesting, do you know of any similar cases in the UK where the reliability of cell site analysis has been questioned?
So let me get this straight, Agent Shute testified to taking measurements and examining a cell tower . . . that does not exist? I noticed the Gov did not address that assertion.
Agent Shute could not testify about the information regarding the tower that had been removed. He did not testify about any calls that were linked to this tower.
The Gov established ownership/use of the cellular device, they established a pattern of usage in the crime area, and they established time frames for the usage. Would this not carry more weight than the possibility that atmospherics or signal strength on one individual tower was incorrect. Can you ever be correct on ALL the towers used in a repoll or LAC. It may be a given that the nearest tower may not have carried the call but when a constant string of towers over a short period of time are tracked the phone is following that track is it not?