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United States v. Wiseman

United States Court of Appeals, Sixth Circuit

July 26, 2019

United States of America, Plaintiff-Appellee,
Joey D. Wiseman, Jr., Defendant-Appellant.

          Appeal from the United States District Court for the Northern District of Ohio at Cleveland. No. 1:17-cr-00464-1-Donald C. Nugent, District Judge.

         ON BRIEF:

          Marisa L. Serrat, Cleveland, Ohio, for Appellant.

          Scott Zarzycki, UNITED STATES ATTORNEY'S OFFICE, Cleveland, Ohio, for Appellee.

          Before: MOORE, COOK, and THAPAR, Circuit Judges.



         Defendant Joey Wiseman appeals his conviction and sentence for being a felon in possession of a firearm and ammunition and possession of cocaine with intent to distribute. In the early hours of August 4, 2017, Wiseman intercepted a would-be-robber entering his home through a window, disarmed the intruder, and shot him with a gun already in Wiseman's possession. Wiseman subsequently placed the gun in a safe containing individual baggies of drugs in a vehicle parked in his driveway prior to cooperating with the police who investigated the shooting. Wiseman now argues that the First Step Act of 2018 renders his sentencing improper, that he was entitled to a jury instruction on the justification defense, and that testimony about his parolee status was improperly admitted. We reject his challenges and AFFIRM his conviction and sentence.

         I. BACKGROUND

         A. Factual Background

         On August 4, 2017, at around 6:30 a.m., several Elyria Police Department officers were dispatched to 201 George Street in Elyria, Ohio and observed blood on the lower part of the frame of an open window of the home. R. 74 (Trial Tr. at 104-07) (Page ID #426-29). Wiseman soon appeared from between the house and a GMC Yukon parked in the driveway. He held his hands up and informed the officers that there was a handgun laying in the driveway. Id. at 113, 222 (Page ID #435, 544). The handgun was black and stainless steel. Id. at 114 (Page ID #436). The officers entered the home and observed a teenaged male, Jaymone Whitaker, in a pool of blood on the living-room floor close to the window with the bloody frame; he appeared to have been shot multiple times. Id. at 121 (Page ID #443). Paramedics took Whitaker to the hospital, and officers brought Wiseman to the police station. Id. at 124-25, 153 (Page ID #446- 47, 475).

         The police collected the gun, a loaded Taurus PT 709 9mm, from the driveway. They collected a package with approximately .3 grams of white powder containing cocaine from the kitchen floor and several 9mm Luger shell casings from the living room, where there were signs of a struggle. Id. at 186-87, 224 (Page ID #508-09, 546). They also observed that there were surveillance cameras on the outside of the home and a monitor in the living room that displayed the security footage.

         At the police station, officers swabbed Wiseman's hands for gun residue and collected $4, 949.00 in cash from Wiseman's person. Id. at 154, 190-91 (Trial Tr. at 476, 512-13). Wiseman was Mirandized, and he indicated that he understood his rights and agreed to talk with the police officers. R. 75 (Trial Tr. at 325) (Page ID #647). The interview was recorded on video. Id. at 326 (Page ID #648).

         Wiseman informed the police that he had been awoken by a voice, used the restroom, came back, sat down on the couch, and then, aided by his surveillance monitor, he saw Whitaker "coming up to his window, peeking in, wearing the mask." Id. at 337, 360 (Page ID #659, 682). Wiseman stated that he had knocked Whitaker's gun out of his hand as Whitaker entered the home and then Wiseman shot Whitaker with a black Lorcin gun that Wiseman had in the house with him prior to the robber's entry. Id. at 338 (Page ID #660). Wiseman subsequently placed the black Lorcin gun in a safe in the back of the Yukon parked in the driveway. Id. at 335 (Page ID #657). Wiseman admitted that between five and twenty-five grams of cocaine were also inside of the safe. Id. at 333, 341-42 (Page ID #655, 663-664). Wiseman stated that he had not called 9-1-1 after shooting Whitaker, but rather Wiseman's first response had been to gather his money and other things prior to calling the authorities. Id. at 334 (Page ID #656).

         Wiseman provided the officers with the combination to the safe in the Yukon. Id. at 342 (Page ID #664). The officers obtained a search warrant, towed the vehicle to the police station, and searched the safe. Id. at 343 (Page ID #665). It contained the black Lorcin 9mm handgun with a defaced serial number, 11 individual bags of similar quantities of a white powder containing cocaine, a bag of cutting material, and a shoebox containing a digital scale, spoon, scissors, and baggies. R. 74 (Trial Tr. at 158-60) (Page ID #480-82); R. 75 (Trial Tr. at 343) (Page ID #665). The safe also contained documents bearing Wiseman's name. R. 75 (Trial Tr. at 343-44) (Page ID #665-66).

         The officers obtained Wiseman's consent to view the surveillance video from the home. Id. at 346 (Page ID #668). It showed Whitaker entering the home through the window and holding a black and silver gun. Id. at 350 (Page ID #672). It subsequently showed Wiseman walking outside the home. Id. at 352-53, 355 (Page ID #674-75, 677).

         B. Procedural History

         On November 8, 2017, Wiseman was indicted on three counts stemming from the August 4 events. R. 1 (Indictment) (Page ID #1-2). Count 1 charged him with possession with intent to distribute approximately .28 grams of cocaine, in violation of 21 U.S.C. § 841(a)(1) & (b)(1)(C). Count 2 charged him with possession with intent to distribute approximately 11.28 grams of cocaine in violation of the same statute. Count 3 charged him with being a felon in possession of a firearm and ammunition in violation of 18 U.S.C. §§ 922(g)(1) & 924.

         On January 23, 2018, the government filed an information under 21 U.S.C. § 851(a) stating the previous felony drug offense convictions that it intended to rely upon in enhancing his sentence under 21 U.S.C. § 841(b)(1)(C). R. 18 (Information) (Page ID #57-59). These convictions were for: (1) Possession of Cocaine in 2016; (2) Illegal Conveyance of Drugs of Abuse onto the Grounds of a Specified Government Facility, Trafficking in Drugs and Possession of Drugs in 2015; (3) Trafficking in Drugs in 2014; and (4) Trafficking in Cocaine in 2012. On June 8, 2018, Wiseman filed a proposed jury instruction on a justification defense. R. 47 (Def.'s Proposed Jury Instruction) (Page ID #201-02).

         Wiseman's jury trial commenced on June 12, 2018. R. 50 (Trial Minutes) (Page ID #206). At trial, Special Agent Eric French testified about his involvement in the case. When asked how he had come to be involved in the case, he testified that he got "a call from Adult Parole Authority," specifically Parole Officer Daniel Riley. R. 74 (Trial Tr. at 259) (Page ID #581). Wiseman objected to this testimony and the court instructed the government to move on. Id. at 259-60 (Page ID #581-82). French went on to testify that his role in the case involved attempting to trace the Lorcin gun. Id. at 260-68 (Page ID #582-90). At the close of trial, Wiseman reiterated his request for a jury instruction on a justification defense, and the district court heard oral argument from both sides and ultimately declined to issue such an instruction. ...

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