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

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Appeal from United States District Court 

for the District of South Dakota - Southern

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Submitted: June 16, 2023

Filed: July 24, 2023

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Before LOKEN, ERICKSON, and KOBES, Circuit Judges. 

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ERICKSON, Circuit Judge. 

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 court1 abused its discretion when it overruled his 

1

The Honorable Karen E. Schreier, United States District Judge for the 

District of South Dakota.
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objections to admission of evidence from an eTalk flip phone and when it allowed a 

drug enforcement agent 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 trooper 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 admitted there was marijuana in the car. Trooper Peterson

decided to search the vehicle, and, as 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 seized 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 district 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] the use of coded 
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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 training 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 moved 

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 uninvolved in Needham’s 

methamphetamine and fentanyl trafficking. The 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 fentanyl 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 marijuana 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 “Jerry”; 

(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. The 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 

crystalline substance on a gram scale. During his testimony, over Wise’s objection, 

Special Agent Sundet opined that the substance in the photograph was 
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“[c]omparable to methamphetamine” and “mimic[ked] the methamphetamine found 

in this case.” The 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, the 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 seized

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 the user. Under the circumstances, the 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 
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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 awareness of and involvement in

methamphetamine trafficking. One of the charges before the jury was conspiracy to 

distribute methamphetamine. The 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 photograph 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 encompassed 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 has 

arrested hundreds of individuals for misdemeanor and felony drug possession 

crimes. See United States v. Kuenstler, 325 F.3d 1015, 1023 (8th Cir. 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). 

Finally, 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 
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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)). Evidence may be excluded consistent 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, Wise was not deprived of the opportunity to present a complete 

defense. Wise’s state court conviction would have had only marginal relevance

given the evidence on Wise’s personal phone that demonstrated he agreed to 

distribute fentanyl and the evidence on the eTalk phone indicating an involvement 

in methamphetamine trafficking. Moreover, Wise’s cross-examination of the 

witnesses shows that he plausibly asserted and maintained his theory of defense 

without the conviction itself. Even 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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