United States Court of Appeals

For the Eighth Circuit

___________________________

No. 21-3816

___________________________

United States of America

lllllllllllllllllllllPlaintiff - Appellee

v.

Eric Deangelo Griggs, also known as E.

lllllllllllllllllllllDefendant - Appellant

 ____________

Appeal from United States District Court

for the Northern District of Iowa - Eastern

 ____________

 Submitted: September 21, 2022

Filed: November 21, 2022

____________

Before GRUENDER, MELLOY, and ERICKSON, Circuit Judges. 

____________

MELLOY, Circuit Judge. 

A jury found Eric Griggs guilty of several drug offensesincluding distribution

of a controlled substance resulting in death. The district court1

applied an

1 The Honorable C.J. Williams, United States District Judge for the Northern

District of Iowa. 
enhancement for obstruction of justice and sentenced Griggs within the Guideline

range. 

Griggs appeals the denials of a motion to suppress, motion for a directed

verdict, and motion for a new trial. Griggs also appeals his sentence. We affirm. 

I. Background

On August 31, 2018, Abigail Wilder made four phone calls to her boyfriend,

Jeffrey Schmitt. Schmitt was in a county jail, so all of the phone calls were recorded. 

Wilder told Schmittshe was driving to meet a supplier and buy heroin. Later, Wilder

told Schmitt she had given her supplier a ride and stayed in the car while he sold to

another individual. That night Wilder died from a heroin overdose. 

When police found Wilder the next morning, her cell phone was next to her

body. The investigators obtained a search warrant for Wilder’s phone and spoke to

Schmitt in the county jail. Schmitt provided investigators with the code to unlock

Wilder’s phone and told investigators that Wilder communicated with her supplier

via text message or Facebook messenger. Schmitt did not know the name of the

supplier Wilder had met the day before. However, Schmitt told investigators the

supplier was a “skinny black male” that was likely the last person Wilder spoke to on

Facebook messenger.

Investigators found communications from August 31, 2018, between Wilder

and a Facebook account associated with “Eric Griggs.” Investigators recognized the

name from previous cases. Investigators determined the communications between

Griggs and Wilder coincided with the conversations Wilder had with Schmitt. 

On September 1, 2018, investigators posing as Wilder began using Wilder’s

phone to message Griggs in an effort to replicate the sale from the previous night. 

-2-
Griggs responded and agreed to a time and location to meet and sell heroin. When

Griggs messaged to indicate he had arrived at the agreed-upon location, an

investigator identified and approached Griggs’s car. Investigators detained both the

driver and passenger, Griggs. Griggs was Mirandized and searched. The driver gave

permission to search the car, and investigators found heroin. Investigators seized

Griggs’s phone and applied for a warrant. In the affidavit, the officersstated Schmitt

had told them Wilder’s dealer was named Eric Griggs. The warrant was granted. 

Griggs filed motions to suppress two categories of evidence: (1) evidence of

the conversation between himself and investigators using Wilder’s phone afterWilder

had died, arguing the officers had violated the Wiretap Act; and (2) statements he

made to the police and evidence collected from his phone after being apprehended. 

Griggs asserted a seizure occurred when officers approached his parked car in

violation of the Fourth Amendment. Griggs also argued the warrant affidavit falsely

stated Schmitt had identified Wilder’s dealer by name as Eric Griggs. The district

court denied the motions. 

At trial, the government presented evidence from multiple sources including:

Wilder and Griggs’s phones, Griggs’s Mirandized statements, a prior cocaine

conviction, Schmitt and Wilder’s conversations, and witness testimony about

Wilder’s drug use. One of the government’s witnesses was Preston McCully, a friend

of Wilder. McCully testified that he did not take drugs with or sell drugs to Wilder.

On cross examination however, Griggs presented text messagesshowing Wilder had

inquired about buying drugs from McCully on August 13, 2018. After presentation

of the state’s case, Griggs moved for a directed verdict. The district court denied the

motion. Griggs did not present a defense. In his closing argument, Griggs argued

that McCully could have supplied the heroin that killed Wilder. The jury found

Griggs guilty of one count of distribution of a controlled substance resulting in death

and two counts of use of a communication facility to commit a felony drug crime. 

-3-
The jury found Griggs not guilty of one count of possession with intent to distribute

a controlled substance and aiding and abetting the same. 

Griggs moved for a new trial alleging: (1) the weight of the evidence was

contrary to the guilty verdicts, (2) the government used perjured testimony, and (3)

various other errors by the court violated his constitutional rights. The district court

denied the motion. The district court applied a two-level increase for obstruction of

justice and sentenced Griggs to 480 months in prison, a within Guidelines sentence. 

II. Discussion

A. Suppression

Griggs appeals the denial of his motion to suppress. We review the denial de

novo and underlying factual determinationsfor clear error. United States v. Milliner,

765 F.3d 836, 839 (8th Cir. 2014). 

Griggs claims the government’s use of Wilder’s phone to contact Griggs and

set up a heroin sale was a violation of the Wiretap Act and therefore should be

suppressed. The Wiretap Act makes it unlawful for an individual to, among other

things, “intercept [] any wire, oral, or electronic communication[.]” 18

U.S.C.§ 2511(1)(a). Intercept is defined as “aural or other acquisition of the contents

of any wire, electronic, or oral communication through the use of any electronic,

mechanical, or other device.” 18 U.S.C. § 2510(4). The Wiretap Act has several

exclusions including: “It shall not be unlawful under this chapter for a person acting

under color of law to intercept a wire, oral, or electronic communication, where such

person is a party to the communication or one of the partiesto the communication has

given prior consent to such interception.” 18 U.S.C. 2511(2)(c). Because the officer

using Wilder’s phone was a government agent participating in official acts for an

investigatory purpose, the officer was acting under color of law. See United States

-4-
v. Rich, 518 F.2d 980, 985 (8th Cir. 1975). The officer was also a party to the

conversation. See S. Rep. No. 90–1097, at 93–94 (1968) (party is “the person actually

participating in the communication”);In re Google Inc. Cookie Placement Consumer

Priv. Litig., 806 F.3d 125, 143 (3d Cir. 2015) (“In the context of the statute, a party

to the conversation is one who takes part in the conversation.”(citations omitted)). 

Given that the officer was a party to the conversation and was operating under color

of law the conversation was not “intercepted.” “The Wiretap Act is a wiretapping

statute, and just because a scenario sounds in fraud or deceit does not mean it sounds

in wiretapping.” In re Google 806 F.3d at 144.

Next, assuming the approach to the vehicle was a seizure, officers had probable

cause to approach the car. Evidence supporting probable cause included a description

of Griggs from Wilder’s boyfriend, the photo attached to the Facebook account

Griggs used to message Wilder, investigators’ personal experiences with Griggs in

the past, and the circumstantial evidence of when the car pulled into the parking lot. 

Finally,the incorrect statement in the warrant affidavit—that Schmitt identified

Griggs by name—does not require suppression of evidence collected fromthe phone.

Even if “the affiant [] ‘knowingly and intentionally’ made false statements or made

them in ‘reckless disregard for the truth,’” suppression is not required when probable

cause still exists without the false statement. United States v. Daigle, 947 F.3d 1076,

1083 (8th Cir. 2020) (alteration in original). There was sufficient evidence in the

affidavit to obtain a warrant without Schmitt identifying Griggs by name. 

B. Trial Errors

We review denial of a motion for a new trial for abuse of discretion. United

States v. Malloy, 614 F.3d 852, 862 (8th Cir. 2010). Griggs alleges several trial

errors including use of perjured testimony, misleading and incomplete jury

-5-
instructions, and inclusion of inadmissible evidence. In addition, Griggs asserts the

verdict was against the weight of the evidence. 

McCully falsely testified that his relationship with Wilder did not involve

drugs. Griggs argues the prosecution’s use of this testimony requires a new trial. As

discussed above, the evidence of McCully’slie came out on cross examination. If the

courtfindsthe government knowingly, recklessly, or negligently used false testimony

and there is a “reasonable likelihood that the false testimony could have affected the

judgment of the jury” then a new trial should be granted. United States v. Tierney,

947 F.2d 854, 861 (8th Cir. 1991) (citation omitted). Even assuming the testimony

was used knowingly, recklessly, or negligently, no reasonable likelihood exists that

the jury’sjudgment was affected. McCully’slies were exposed on cross examination

allowing the jury to properly weigh his credibility. Because Griggs described

McCully as a possible alternative source of the drugs during closing arguments, he

placed the issue of McCully’s credibility squarely in the hands of the jury. 

Next, we review the district court’sjury instructionsfor an abuse of discretion. 

See United States v. Koech, 992 F.3d 686, 691 (8th Cir. 2021). “[A]dequate jury

instructions must, ‘taken as a whole adequately advise the jury of the essential

elements of the offenses charged and the burden of proof required of the

government.’” United States v. Pereyra-Gabino, 563 F.3d 322, 328 (8th Cir. 2009)

(citation omitted). Aslong asthe instructions accurately state the law, the court is not

required to use specific language suggested by defense counsel. United States v. Iron

Eyes, 367 F.3d 781, 785 (8th Cir. 2004). 

Griggs argues the jury instructions for Count 1, distribution of a controlled

substance resulting in death, inaccurately stated the law regarding distribution

resulting in death. The Supreme Court hassaid distribution of a controlled substance

resulting in death has two elements: 1) knowingly or intentionally distributing a

substance, and 2) death caused by the use of thatsubstance. Burrage v. United States,

-6-
571 U.S. 204, 210 (2014). In this case, jury instruction number fourteen listed two

elements for distribution of heroin: 1) intentionally transferring heroin, and 2)

knowledge that the substance transferred was heroin. Jury instruction number fifteen

instructed the jurors that if they found defendant guilty of distributing heroin they

were to determine if the same heroin was the but for cause of Wilder’s death. Both

instructions specified that the government must prove the elements beyond a

reasonable doubt. These instructions were accurate under Burrage. 

Griggs also argues that the statements between Wilder and Schmitt were

inadmissible hearsay. Specifically Griggs objects to one statement Wilder made to

Schmitt—“We were waiting and then he had to sell to someone else. I had to stay in

the car. And then I had to drive him back to the East Side.” Griggs argues the

statement was not sufficiently contemporaneous to qualify as a present sense

impression. Fed. R. Evid. 803(1). We need not address Griggs’s argument because

even if the statement was improperly admitted, any the error was harmless. The two

assertions in the objected-to portion of the conversations—that Wilder gave her

dealer a ride and the timing of when she arrived home—were corroborated by other

parts of the conversation between Schmitt and Wilder to which Griggs did not object. 

Since the admission of the evidence did not influence the verdict the error was

harmless. United States v. Burch, 809 F.3d 1041, 1045 (8th Cir. 2016). 

The remaining errors Griggs asserts do not necessitate a new trial. The district

court did not abuse its discretion in denying a new trial or refusing to grant a directed

verdict based on sufficiency of the evidence. The jury instructions as a whole advised

the jury of the elements of the offenses and the burden of proof required. The

evidence of a former conviction was properly allowed under Federal Rules of

Evidence 404(b), with a limiting instruction. 

-7-
C. Sentence

Finally, Griggs appeals his sentence. We review factual findings underlying

an obstruction-of-justice enhancement for clear error. United States v. Esparza, 291

F.3d 1052, 1054 (8th Cir. 2002). While Griggs was in jail he wrote a letter to a

government witness. In the letter Griggstold the government’s witnessthat if he was

cooperating he was a “b---h” and “if you on my paperwork you can’t go back to

Waterloo and they f--k you up when you get to the Fed joint.” The district court did

not err by finding this letter demonstrated attempted obstruction of justice or by

imposing a two-level enhancement under U.S.S.G. § 3C1.1.

Lastly, Griggs argues he should have received a downward variance due to his

abusive childhood. We review the substantive reasonableness of a sentence for abuse

of discretion. United States v. St. Claire, 831 F.3d 1039, 1043 (8th Cir. 2016) (“A

sentence within the Guidelines range is accorded a presumption of substantive

reasonableness on appeal.”(citation omitted)). The district court reviewed all the

evidence that Griggs presents to this court and did not err in weighing the evidence

differently than Griggs would have preferred. 

III. Conclusion

Accordingly, we affirm the judgment of the district court.

______________________________

-8-