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Case 2:25-cr-00025-JKW-DEM Document 41 Filed 06/27/25 Page 1 of 5 PageID# 126
IN THE UNITED STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF VIRGINIA
Norfolk Division
UNITED STATES OF AMERICA )
)
v. ) CRIMINAL NO. 2:25cr25
)
ARTHUR J. CHERRY, )
)
Defendant. )
UNITED STATES' MOTION IN LIMINE
TO ADMIT CERTAIN BUSINESS RECORDS
The United States of America, by and through Erik Siebert, United States Attorney, and
Joseph DePadilla, Assistant United States Attorney, and Graham Stolle, Special Assistant United
States Attorney, hereby moves in limine on the admission of business records that have been
certified in accordance with Federal Rules of Evidence 902(11) and 902(13). The form
complying with 902(11) and 902(13) is attached as Exhibit Two.
FACTUAL BACKGROUND
On February 14, 2025, defendant ARTHUR J. CHERRY (CHERRY) was arrested for
one Count of Felon in Possession of a Firearm in violation of 18 U.S.C. § 922(g) (Count 1). On
March 5, 2025, a grand jury returned an indictment charging the defendant with one Count of
Felon in Possession of a Firearm in violation of 18 U.S.C. § 922(g) (Count 1) and one Court of
Felon in Possession of Ammunition in violation of 18 U.S.C. § 922(g) (Count 2).
Count 2 of the indictment pertains to an investigation performed by the Bureau of
Alcohol, Tobacco, Firearms, and Explosives (ATF) which included cell site (cellular tower
location) analysis.
In the investigation of this case the ATF identified business records from T-Mobile US,
Inc., (T-Mobile), that are admissible under Federal Rule of Evidence 803(6). See Exhibit One
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(CD). Specifically, the records are for telephone number (757) 359-7524. The T-Mobile
records and the resulting cell site analysis have been made available to the defense. In addition
to the records themselves, the government has obtained a certification form showing compliance
with Federal Rules of Evidence 902(11) and 902(13). See Ex. 2.
AUTHENTICITY
Under Federal Rule of Evidence 902(11), an original or a copy of a certificate complying
with the rule is self-authenticating and requires no extrinsic evidence of authenticity if it meets
the requirements of Rule 803(6)(A)-(C) “by a certification of the custodian or another qualified
person that complies with a federal statute or a rule prescribed by the Supreme Court.”
Similarly, under Federal Rule of Evidence 902(13), “a record generated by an electronic
process or system that produces an accurate result, as shown by a certification of a qualified
person that complies with the certification requirements of Rule 902(11)” is also self-
authenticating, requiring no extrinsic evidence of authenticity to be admitted.
The government has previously given the defense copies of the records, the certification
citing compliance with both 902(11) and 902(13), and written notice of the intent to offer such
records.
HEARSAY
The government intends to introduce these are business records obtained from T-Mobile.
Federal Rule of Evidence 803(6) provides that
[a] record of an act, event, condition, opinion, or diagnosis” is not excluded by the
general rule against hearsay if:
(A) the record was made at or near the time by--or from information transmitted
by--someone with knowledge;
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(B) the record was kept in the course of a regularly conducted activity of a
business, organization, occupation, or calling, whether or not for profit;
(C) making the record was a regular practice of that activity;
(D) all these conditions are shown by the testimony of the custodian or another
qualified witness, or by a certification that complies with Rule 902(11) or (12) or
with a statute permitting certification; and
(E) the opponent does not show that the source of information or the method or
circumstances of preparation indicate a lack of trustworthiness.
Fed. R. Evid. 803(6).
As noted above, the government has obtained a certification form complying with
Federal Rule of Evidence 902(11) that states the essential elements of Rule 803(6). T-Mobile is a
reputable business organization that provides services to individuals and businesses.
Accordingly, there are no circumstances that suggest that the records are not trustworthy. In
addition, the admission of such records poses no Confrontation Clause problems. See United
States v. Mallory, 461 F. App'x 352, 356-57 (4th Cir. 2012) (citing Melendez–Diaz v.
Massachusetts, 557 U.S. 305 (2009).) To the government’s knowledge, the defense has not
offered any reason to doubt the trustworthiness about the source of information or the method or
circumstances of preparation. In 2014, this Rule was amended to clarify that the burden is on
the opponent to show lack of trustworthiness. Under Rule 803(6), therefore, the records should
be admitted without the need for live witness testimony from the custodian of records to
authenticate the records. The admissibility of such records would, of course, be subject to any
right to object to such evidence under Rule 401 and Rule 403 of the Federal Rules of Evidence.
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CONSULTATION WITH DEFENDANT'S COUNSEL
We have consulted with the defendant’s attorney, who has not agreed to stipulate to the
admission of these business records.
CONCLUSION
For the reasons stated above, the United States requests that the Court make a preliminary
ruling that the business records from T-Mobile, that have been certified in accordance with
Federal Rule of Evidence 902(11) and 902(13), be admitted for trial without the need for
presenting live testimony of a business representative to authenticate the records. The United
States recognizes that the records would be subject to any potential objections under other
applicable evidentiary rules such as Rule 401 and Rule 403 of the Federal Rules of Evidence.
Respectfully submitted by:
ERIK S. SIEBERT
UNITED STATES ATTORNEY
By: /s/
Graham Stolle
Joseph DePadilla
Attorneys for the United States
United States Attorney’s Office
101 West Main Street, Suite 8000
Norfolk, VA 23510
Office Number - 757-441-6331
Facsimile Number - 757-441-6689
E-Mail Address – graham.stolle2@usdoj.gov
Joe.depadilla@usdoj.gov
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 27th day of June 2025, I electronically filed the
foregoing with the Clerk of Court using the CM/ECF system, which will send a notification of
such filing (NEF) to the following:
Mario Lorello, Esq.
Zoby & Broccoletti P.C.
6663 Stoney Point S
Norfolk, VA 23502
/s/
Graham Stolle
Special Assistant United States Attorney
Attorney for the United States
United States Attorney’s Office
101 West Main Street, Suite 8000
Norfolk, VA 23510
Phone: 757-441-6331
Fax: 757-441-6689
E-mail: graham.stolle2@usdoj.gov
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