No. 22-3140 ___________________________

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 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 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. 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 -2- 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 th