It is not per se plain error for a district judge to neglect to offer an immediate limiting instruction whenever evidence is admitted only for purposes of impeachment. A per se approach to plain-error review is flawed.
Vanessa Moore, an undercover police officer, pre-recorded the serial numbers of three bills and used them to purchase two rocks of crack cocaine, totalling .144 gram, from a man she insisted was the appellant, Warren Ricardo Copelin. After making the purchase, Officer Moore broadcasted a radio lookout and description of the suspect, and, within a few minutes, an arrest team stopped Mr. Copelin. Shortly thereafter, Officer Moore identified Mr. Copelin as the man who sold her drugs. When the arrest team officers searched Mr. Copelin, they found that he possessed the pre-recorded currency. At the scene of the arrest, one of the officers found a brown medicine bottle containing 5.634 grams of cocaine base lying on the ground. Mr. Copelin was charged with the unlawful distribution of crack cocaine, in connection with the two rocks he allegedly sold the officer, and with possession with intent to distribute in excess of five grams of crack cocaine, in connection with the drugs contained in the bottle. At trial, Mr. Copelin contended that he had not made the sale. He argued that Officer Moore was mistaking him for a man named David Bailey, with whom he was playing dice around the time of the sale. Mr. Copelin and his corroborating witnesses testified that they had seen Mr. Bailey repeatedly leave the dice game to engage in transactions. They further testified that money was rapidly changing hands during the game. The jury found Mr. Copelin guilty of unlawful distribution, but not guilty of possession with intent to distribute the drugs in the brown medicine bottle. In calculating his sentence, however, the district court found by a preponderance of the evidence that he had possessed the 5.634 grams of cocaine in the bottle. The judge held that the "same course of conduct" provision in the Sentencing Guidelines, U.S.S.G. § 1B1.3(a)(2), compelled him, in determining Mr. Copelin's sentence, to consider the quantity of crack in the bottle as well as in the two rocks purchased by Officer Moore. He sentenced Mr. Copelin to sixty-three months incarceration, to be followed by three years of supervised release. Mr. Copelin thereafter sought a review of his conviction, asserting that that the district court should not have allowed the government to question him as to the positive drug tests. As an initial matter, however, he conceded that although "prior bad acts" evidence is not admissible to show a defendant's propensity to commit the crime at issue, there are circumstances under which a court may admit such evidence.
Did the district court err in rendering judgment convicting defendant on one count of unlawful distribution of cocaine?
The appellate court ruled that the district court's decision to admit the evidence regarding the positive drug tests was proper because it was admitted as impeachment evidence. However, the court ruled that failure to issue an immediate cautionary instruction informing the jury as to the permissible uses of the evidence constituted plain error because such evidence could substantially prejudice the defendant if misused by the jury. The court therefore reversed the conviction and remanded for a new trial.