54 F.4th 531
8th Cir.2022Background
- On Aug. 31, 2018, Abigail Wilder called her jailed boyfriend Jeffrey Schmitt and told him she was meeting a heroin supplier; she later died of a heroin overdose.
- Police recovered Wilder’s phone, obtained a warrant, and Schmitt gave officers the phone code and said Wilder communicated with her supplier via Facebook Messenger; he described the supplier but did not know the name.
- Investigators using Wilder’s phone (posing as her) messaged a Facebook account linked to “Eric Griggs,” arranged a meeting, and when Griggs arrived officers approached and detained him; heroin was found in the car and Griggs’s phone was seized.
- The warrant affidavit mistakenly stated Schmitt had identified the dealer by name as Eric Griggs; officers also relied on prior familiarity with Griggs and the Facebook account photo.
- At trial the government relied on phone records, Griggs’s Mirandized statements, witness testimony (including Preston McCully), and prior-conviction evidence; the jury convicted Griggs of distribution of a controlled substance resulting in death and related counts.
- The district court denied motions to suppress, for directed verdict, and for a new trial; it applied a two-level obstruction enhancement for a threatening jailhouse letter and imposed a within-Guidelines sentence of 480 months.
Issues
| Issue | Griggs' Argument | Government's Argument | Held |
|---|---|---|---|
| Whether investigators’ use of Wilder’s phone to message Griggs violated the Wiretap Act | The government intercepted Wilder’s electronic communications by using her phone without valid consent | Officer using the phone was a party to the communications and acted under color of law, so the Wiretap Act exclusion applies | Court held no Wiretap Act violation because the officer was a party to the communications and acted under color of law |
| Whether approaching/detaining Griggs at the car and subsequent searches violated the Fourth Amendment | The approach/seizure of Griggs’s parked car was unlawful; evidence and statements should be suppressed | Officers had probable cause based on Schmitt’s description, Facebook/photo match, prior encounters, and timing/circumstances | Court found probable cause supported the stop/search; suppression denied |
| Whether trial errors (perjured testimony, jury instructions, hearsay) require a new trial or directed verdict | Prosecutor used perjured testimony (McCully); jury instructions were misleading; hearsay statements were inadmissible and prejudicial | Any false testimony was exposed on cross; instructions accurately stated law (including Burrage causation); any hearsay error was harmless | Court denied new trial and directed verdict; false testimony exposure and harmless-error analysis foreclosed relief |
| Whether sentencing enhancements and variance were improper | Obstruction enhancement and denial of downward variance were unwarranted given mitigating history | Jailhouse letter showed attempted intimidation/obstruction; court properly weighed mitigation and imposed a reasonable within-Guidelines sentence | Court affirmed two-level obstruction enhancement and refused downward variance; sentence was substantively reasonable |
Key Cases Cited
- United States v. Milliner, 765 F.3d 836 (8th Cir. 2014) (standard of review for suppression denials)
- In re Google Inc. Cookie Placement Consumer Priv. Litig., 806 F.3d 125 (3d Cir. 2015) (defining a party to a communication as one who participates in it)
- United States v. Rich, 518 F.2d 980 (8th Cir. 1975) (government agent acting under color of law for Wiretap Act exclusion)
- United States v. Daigle, 947 F.3d 1076 (8th Cir. 2020) (false affidavit statements do not require suppression if probable cause remains)
- Burrage v. United States, 571 U.S. 204 (2014) (elements of distribution resulting in death require but-for causation)
- United States v. Tierney, 947 F.2d 854 (8th Cir. 1991) (standard for new trial based on use of false testimony)
- United States v. Burch, 809 F.3d 1041 (8th Cir. 2016) (harmless-error standard)
- United States v. Esparza, 291 F.3d 1052 (8th Cir. 2002) (review standard for obstruction enhancement findings)
- United States v. St. Claire, 831 F.3d 1039 (8th Cir. 2016) (presumption of reasonableness for within-Guidelines sentences)