## United States Court of Appeals
**For the Eighth Circuit**

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No. 22

- 3140

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United States of America

Plaintiff - Appellee

v.

Jerry Jerome Wise

Defendant - Appellant

____________ Appeal from United States District Court for the District of South Dakota - Southern

____________

Submitted: June 16, 2023 Filed: July 24, 2023

____________ Before LOKEN, ERICKSON, and KOBES, Circuit Judges.

____________

ERICKSON, Circuit J udge

.

A jury convicted Jerry Wise of two counts of conspiracy to distribute methamphetamine and fentanyl , in violation of 21 U.S.C. §§ 841(a)(1) and 846 . On appeal, he contends the district court 1 abused its discretion when it overruled his

1 The Honorable Karen E. Schreier , United States District Judge for the District of South Dakota.-2- objections to admission of evidence from an eTalk flip phone and when it allowed a
d rug enforcement a gent to provide expert testimony related to the eTalk phone. Wise also contends the court violated his Fifth and Sixth Amendment rights by excluding evidence regarding his state court marijuana conviction. We affirm.

I. BACKGROUND

On July 27, 2020, South Dakota highway patrol tr oope r Eric Peterson stopped a Kia with California license plates for speeding in a construction zone

. Damara
Needham was driving the rented vehicle, and Wise was a passenger

. During the
encounter, Needham a dmitted there was marijuana in the car

. Trooper Peterson
decided to search the vehicle

, and , a s he began his search, Needham removed a floral coin purse

. She then removed a baggie from the purse that Trooper Peterson believed contained methamphetamine. Needham attempted to hide the baggie but ultimately tossed it to Wise. The trooper then handcuffed Needham and escorted
her to his patrol car where she was recorded slipping out of her handcuffs and ingesting an unknown substance

.

Trooper Peterson seiz ed Needham’s and Wise’s cell phones from them and seized from the vehicle the following items: oxycodone pills ; marijuana ; marijuana dispensary containers and pipes ; a box containing methamphetamine, fentanyl, and oxycodone ; and two cell phones in the vehicle ’ s center console. One of the phones

was the eTalk flip phone that is the subject of this appeal

.

Needham and Wise pled guilty to state charges related to possession of marijuana. Needham also pled guilty in federal d istrict court to conspiracy to distribute methamphetamine. Wise proceeded to trial on two charges for conspiracy to distribute 500 grams or more of methamphetamine and conspiracy to distribute 40 grams or more of fentanyl. Prior to trial, the government filed a notice of its intent to offer expert testimony from Special Agent David Sundet regarding “ the significance of items . . . seized as they relate to the distribution of controlled substances; the use of cellular devices to conduct drug sales; [and] t he use of coded-3- and/or cryptic language, words, and references to conduct drug transactions. ” The
notice also indicated Special Agent Sundet would testify as to “ [t]he contents of the
defendant ’ s phone, ” including “ text messages that Agent Sundet in his t raining and experience believe[d] to contain conversations about . . . the sale of fentanyl and methamphetamine, ” and Wise ’ s “ possession of and use of multiple cell phones and
how this relates to the sale of controlled substances. ” Wise unsuccessfully mov ed

to exclude evidence from the eTalk phone as well as Special Agent Sundet’s proffered testimony.

When Wise informed the court that he intended to offer both Needham’s and Wise’s state convictions for marijuana possession, the government moved to exclude the convictions on grounds of relevance and confusion

. Wise asserted his defense theory was that he was a marijuana trafficker and uni nvolved in Needham’s methamphetamine and fentanyl trafficking . T he court permitted the introduction of
Needham ’ s conviction as an alleged co

- conspirator but excluded Wise’s conviction, reasoning the marijuana conviction had no probative value as to the fe ntanyl and methamphetamine charges before the jury and any probative value was outweighed by unfair prejudice.

At trial, text messages from Wise’s phone offering to trade “blues” (which other evidence established is a street name for fentanyl) for mariju ana were introduced

. Although the eTalk phone found in the center console was a “burner ” phone without any identifying subscriber information on it, it contained evidence tying Wise to the phone, including: (1) messages identifying the sender as “J erry ”; (2) a photograph of Wise ’ s bank card; and (3) text messages between a sender using the phone and Wise ’ s sister. Special Agent Sundet testified that it was not unusual
for drug dealers to possess both a personal phone and a “ burner ” phone , which is commonly used in drug trafficking to hide the dealer’s identity

. T he eTalk phone
contained text messages indicating a buyer had been shorted a quantity of drugs

. This conversation included a photograph of a plastic baggie containing a white

cr ystalline substance on a gram scale. During his testimony, over Wise’s objection, Special Agent Sundet opined that the substance in the photo graph was-4- “ [c]omparable to methamphetamine ” and “ mimic[ked] the methamphetamine found
in this case. ” T he district court allowed the testimony, finding it was within the scope of Special Agent Sundet’s experience and expertise.

The jury convicted Wise on both charges

. Wise was sentenced to an aggregate
term of 235 months ’ imprisonment to be followed by 10 years of supervised release. Wise appeals three of the district court’s evidentiary rulings

.

II. DISCUSSION

We generally review evidentiary rulings, including the admission of expert testimony, for an abuse of discretion

. United States v. King , 898 F.3d 797, 805

- 06 (8th Cir. 2018). If a ruling implicates a constitutional right, however, our review is
de novo

. United States v. Cavanaugh , 30 F.4th 1139, 1142 (8th Cir. 2022).

While Wise contends the government failed to authenticate the eTalk phone

, the evidence supporting authentication and tying it to Wise is substantial

. Contrary to Wise’s argument, direct evidence that the phone belonged to him is not required. Circumstantial evidence may be relied on to support authenticity. United States v.
Lamm , 5 F.4th 942, 946

- 47 (8th Cir. 2021). Here, t he user of the phone
self

- identified as “Jerry

, ” the phone contained a photograph of Jerry Wise’s bank
card

, and whoever was using the phone was sending text messages to Wise’s sister. Needham and Wise were the only people in the rental car when the phone was se ized
from the console

. While Wise argues there was insufficient evidence to authenticate that he controlled the phone during the relevant time, the phone was active for less than two months and messages with Wise’s sister were present on the phone within a week after the phone’s activation. From this evidence, a reasonable jury could conclude the same user controlled the phone during the entire time it was activated,
and that Wise was th e user. Under the circumstances, t he district court did not abuse its discretion in finding there was sufficient evidence to authenticate the eTalk phone. See id. (stating evidence is sufficiently authenticated when the proponent-5- provides a rational basis demonstrating the evidence is what it is asserted to be) ; see also Fed. R. Evid. 901 (a).

Likewise, Wise’s assertion that the district court abused its discretion in admitting the photograph on the eTalk phone that purportedly showed methamphetamine without any testing of the substance is unavailing. While Wise contends the evidence was irrelevant and unfairly prejudicial, the photograph and accompanying conversation demonstrates an aware ness of and involvement in methamphetamine trafficking . One of the charges before the jury was conspi racy to distribute methamphetamine. T he lack of testing was something for the jury to
consider in determining the weight to give the evidence. Cf. United States v.
Patterson , 68 F.4th 402, 416 (8th Cir. 2023) ( finding a challenge to a video recording
of the defendant referencing firearms made a few months before the charged
offenses went to the weight of the evidence, not its admissibility).

Wise next contends that Special Agent Sundet’s opinion that the substance in the photograp h was “[c]omparable to methamphetamine” and “mimic[ked] the methamphetamine found in this case” was inadmissible because the testimony went beyond the scope of the government ’ s expert notice and was improper expert testimony

. The government ’ s notice encom passed general testimony regarding the phone’s contents and specifically included text messages related to the sale of fentanyl and methamphetamine

. The challenged testimony indisputably falls within the contents of the phone and the government’s notice

. The opinion also falls within
the expertise of Special Agent Sundet as a trained narcotics investigator who ha s arrested hundreds of individuals for misdemeanor and felony drug possession
crimes. See United States v. Kuenstler, 325 F.3d 1015, 1023 (8th C ir. 2003) (concluding there was no reversible error when witnesses, even if not disclosed as experts, were qualified to give expert opinions regarding the normal practice of drug dealers based on experience investigating methamphetamine business).

Finall y, Wise challenges the district court’s refusal to allow him to introduce
his state court marijuana conviction

. Wise’s purported defense was that he was only-6- involved in marijuana distribution and Needham was responsible for the fentanyl and methamphetamine found in the car. While criminal defendants have a
constitutional right to introduce evidence in their defense, the district court may exclude evidence so long as the exclusion is not “ arbitrary or disproportionate to the purposes [it] was designed to serve. ” United States v. Walker , 917 F.3d 1004, 1009 (8th Cir. 2019) ( quoting United States v. Pumpkin Seed , 572 F.3d 552, 560 (8th Cir. 2009)). E vidence may be excluded consisten t with the Fifth and Sixth Amendments if the evidence is only marginally relevant. See Pumpkin Seed

, 572 F.3d at 560.

The record shows the district court did not exclude Wise’s conviction arbitrarily . Further, W ise was not deprived of the opportunity to present a complete
defense

. Wise’s state court conviction w ould have had only marginal relevance given the evidence on Wise’s personal phone that demonstrate d he agreed to distribute fentanyl and the evidence on the eTalk phone indicat ing an involvement in methamphetamine trafficking. Moreover

, Wise’s cross

- examination of the
witnesses shows that he plausibly assert ed and maintain ed his theory of defense
without the conviction itself. E ven if Wise was able to show a constitutional
violation , any error in excluding the evidence was harmless beyond a reasonable
doubt. See United States v. Eagle, 498 F.3d 885, 889 (8th Cir. 2007) (holding that even assuming a constitutional violation occurred, any error was harmless beyond a
reasonable doubt because the evidence of the defendant’s guilt was “strong and the probative weight of the excluded evidence was relatively weak”).

III. CONCLUSION

We affirm the judgment of the district court

.

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