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Timeline: The Government's Cell Site/Surveillance Evidence

TIMELINE: THE GOVERNMENT'S CELL SITE/SURVEILLANCE EVIDENCE N.Y. Rule Prof '1 Conduct 3.3 (a)(1): "A lawyer shall not knowingly make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer."

  • OCTOBER 25, 2012:

    "[FBI Agent] ANTHONY FOTO, being duly sworn, deposes and says that... GILBERTO VALLE, the defendant, made and/or received cellular communications on the block in Manhattan on which Victim 2's apartment building is located." (Criminal Complaint, Paragraph 16)


    "As your Honor also pointed out, based on GPS data, we know that this defendant was near the same block of the apartment building of one of his victims... I do think it's more than a mere coincidence that the defendant is on the very block that his victim lives." -Assistant US Attorney Hadassa Waxman


    "This defendant took affirmative steps to bring this plan to fruition. He had that conversation with the co-conspirator on February 28th. The very next day his cell phone puts him on the same block as her apartment building." -Assistant US Attorney Hadassa Waxman


    "I would like to address the March 1, 2012 surveillance where we have cell site data in which the defendant is either receiving or making a phone call from the very block of the victim's apartment building. This is not in the area; this is on her very block." -Assistant US Attorney Hadassa Waxman


    "The very next day, Mr. Valle's cell phone is hitting off a cell tower half a block from this individual's apartment in Manhattan. He was there on the block. It was not coincidence. He was there for the purpose of surveillance." -Assistant US Attorney Hadassa Waxman

  • JANUARY 2013:

    The government provides the defense with 3,500 different cellular connections from Gil's phone made over the course of nearly a year. Out of this massive trove of data, the government cobbles together only 2 "hits" that they will argue at trial prove that Gil was conducting surveillance; March 1, 2012 on the Upper East Side, and August 19, 2012 in lower Manhattan.

  • JANUARY 25, 2013:

    Ten days after Gil's last bail appeal in which he was denied bail, the government acknowledges to the defense that their previous representations concerning cell-site data were false. In a letter to the defense, the government states: "Mr. Valle's cell phone was in the vicinity of certain locations during the period of the charged conspiracy." The government did not define specifically what "in the vicinity" meant. In the same letter, the government provides notice concerning anticipated expert testimony at trial: "Agent Shute will testify regarding analysis of the toll records for the period of January 2012 through October 2012."


    "At trial, the government intends to introduce cell site evidence that will show that the defendant was in the vicinity of certain areas at certain times." (Government's Response to Defendant's Motion in Limine to Preclude Cell-Site Evidence)


    THE COURT: "When you say 'in the vicinity', could you give me a sense of what you mean by that?"

    MR. JACKSON: "Your Honor, I think that our witness, taking a look at the data and applying it to the maps, would say that it's probably four or five blocks."

  • FEBRUARY 10, 2013 GOVERNMENT BRIEF (2 days after jury selection began):

    "Agent Shute is expected to testify that he examined cell site data... Agent Shute believes that on March 1, 2012 at approximately 2:23 pm, the cell phone was located no more than 500 to 600 yards from Tower 147... located at 1311 Third Avenue, New York, New York. Agent Shute is also expected to testify that... on May 5, 2012, at approximately 12:50 pm and 12:57 pm, the cell phone accessed a cell tower located at 82-46 Hoover Avenue, Kew Gardens, Queens. Agent Shute believes... the cell phone was located no more than 600 to 700 yards from [82-46 Hoover Avenue]." (Government's Response to Defendant's Motion to Preclude the Testimony of Agent William Shute)


    The government officially abandons the August 19, 2012 "surveillance" incident and concocts a new claim after again combing through the 3,500 cellular communications. The government will now argue at trial that Gil's cell phone was within 600-700 yards of his high school alma mater on Saturday, May 5, 2012.

  • FEBRUARY 25, 2013:

    Three hours before opening arguments, the government abandons all cell-site data and does not admit any of it at trial.


    1. On December 4, 2011 at 10:35 pm, Gils cell phone connected to a tower at 115 River Road in Edgewater, NJ. At 10:36, the phone connected to a tower at 26 Columbia Terrace, also in Edgewater. Under the government's theory, that would place Gil somewhere "in the vicinity" of Edgewater, NJ. Gil's work records show that on that date, he was on duty on the Upper West Side from 3:00 pm to 11:35 pm. He responded to a 911 call at 10:45, 10 minutes after his cell phone supposedly placed him in Edgewater, NJ.

    2. According to Gil's NYPD work records, on March 1, 2012 he worked from 12:30 pm to 11:35 pm and was assigned as the sergeant's driver on a counter terrorism detail. During this assignment, all of Manhattan was Gil's beat. In addition, Gil and his sergeant visited his wife and daughter at Mount Sinai Hospital that afternoon. They were there to see a friend of Gil's wife who had just given birth. Mount Sinai Hospital is located on the Upper East Side, well within 600 yards of the cell tower at 1311 Third Avenue. Gil's wife and his sergeant both confirmed this meeting at trial.

    3. Cell-Site Literature:

    4. "This is not the first time that counsel for the United States has acknowledged mischaracterizing or misrepresenting evidence to this Court in this matter. For example, the government previously created the impression that Mr. Valle's brunch with a particular woman was suspicious... by representing that the woman 'thought it was weird' of Mr. Valle to schedule a brunch, because she 'hadn't seen [Mr. Valle] in such a long time', and the two had been 'in very, very minimal contact for a period of a number of years.' (11/20/12 Tr. 26:3-4, 25:19-20) The FBI's two page report of its interview with the woman-- prepared seven weeks prior to the in-court representation and presumably available for counsel's review during that time -- indicates that the woman 'considered [Mr. Valle] a good friend' and that they generally 'would get together when [Mr. Valle] was in Maryland.' (GV000854) The government later conceded that its in-court representation was false, and the government did not identify any good-faith basis it had for making the original, false representation. The government also conceded that it had exaggerated when it represented that every piece of personal information Mr. Valle sent over the internet was true and accurate.... Finally, counsel for the United States has not contacted the Court to take any remedial measures concerning the false testimony that an FBI agent provided to the Court -- under oath -- in the complaint that resulted in Mr. Valle's arrest and detention." (Defendant's Motion in Limine to Preclude Cell Site Evidence)

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