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.
L. Serrat, Cleveland, Ohio, for Appellant.
Zarzycki, UNITED STATES ATTORNEY'S OFFICE, Cleveland,
Ohio, for Appellee.
Before: MOORE, COOK, and THAPAR, Circuit Judges.
NELSON MOORE, CIRCUIT JUDGE
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.
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-
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
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
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).
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).
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
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.
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
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. ...