United States of America v. Eric Deangelo Griggs, also known as E.

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 offenses including 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.

-- 1 of 8 --

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 Schmitt she 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-

-- 2 of 8 --

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 officers stated 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 after Wilder
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 messages showing 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-

-- 3 of 8 --

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 determinations for 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 parties to 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-

-- 4 of 8 --

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 from the 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-

-- 5 of 8 --

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’s lie came out on cross examination. If the
court finds the 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’s judgment was affected. McCully’s lies 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’s jury instructions for 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). As long as the 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 has said 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 that substance. Burrage v. United States,
-6-

-- 6 of 8 --

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-

-- 7 of 8 --

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 Griggs told the government’s witness that 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-

-- 8 of 8 --