UNITED STATES OF AMERICA, APPELLEE
v.
WARREN RICARDO COPELIN, APPELLANT
No. 91-3326
United States Court of Appeals, District
of Columbia Circuit
Argued March 1, 1993
Decided June 25, 1993
996 F.2d 379 (D.C. Cir. 1993)
Robert L. Tucker, Asst. Federal Public
Defender, argued the cause for appellant. With him on the brief was
A.J. Kramer, Federal Public Defender.
M. Evan Corcoran, Asst. U.S. Atty., of the
bar of the Supreme Court of Virginia, pro hac vice, by special leave
of the Court, argued the cause for appellee. With him on the brief
were Jay B. Stephens, U.S. Atty. at the time the brief was filed, John
R. Fisher, Roy M. McLeese, III, and Linda L. Mullen, Asst. U.S. Attys.
Appeal from the United States District
Court for the District of Columbia (91cr00382-01).
Before MIKVA, Chief Judge; WALD and
BUCKLEY, Circuit Judges.
Opinion for the Court filed by Chief Judge
MIKVA.
MIKVA, Chief Judge:
Warren Ricardo Copelin appeals his
conviction on one count of unlawful distribution of cocaine. He argues
that the district court erred by permitting the government to
cross-examine him concerning his three positive drug tests for cocaine
while on pre-trial release. He further asserts that even if the
district court did not err by admitting this evidence, it committed
reversible error by doing so without issuing an immediate limiting
instruction to the jury. Finally, Mr. Copelin contends that the
district court’s calculation of his sentence was improper because, in
determining his base offense level, the judge considered a quantity of
cocaine contained in a discarded bottle, even though Mr. Copelin was
acquitted of the charge that he possessed the drugs in that bottle.
We find that the district court’s decision
to admit the evidence regarding the positive drug tests was proper,
but that its failure to issue an immediate cautionary instruction
informing the jury as to the permissible uses of that evidence
constituted plain error. We therefore reverse the conviction and
remand for a new trial. It thus is not necessary for us to reach the
sentencing issue.
I. BACKGROUND
Vanessa Moore, an undercover District of
Columbia 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 maintains was Mr. Copelin. The man who sold
her the crack produced the drugs from a brown medicine bottle. After
making the purchase, Officer Moore broadcast 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.
II. ANALYSIS
Mr. Copelin’s evidentiary claims concern a
colloquy that occurred during the government’s cross-examination of
him at trial. The prosecutor asked him whether he knew that Mr.
Bailey, the man Mr. Copelin contends actually made the sale, was in
fact engaging in drug transactions during the dice game.
Q: All right. And did you ever see him
engage in a transaction where you knew it for sure?
A: I would see money change hands, but
other than seeing the actual drugs or anything, no, I haven’t noticed.
Q: You didn’t see any actual drugs?
A: No, sir.
Q: Would you know what they looked like if
you saw them?
A: Yes. It’s advertised on TV, too,
sometimes in the commercials.
Q: You see drugs advertised on TV?
A: Yes, you know, on news or something
like that.
Q: And that’s the only time you’ve ever
seen drugs?
A: Roughly, yes.
Q: Roughly?
A: Yes.
The prosecutor then requested a bench
conference, during which he sought permission from the court to
cross-examine Mr. Copelin as to his positive drug tests while he was
on pretrial release.
The defendant tested positive for cocaine
on three separate occasions and I believe that provides a reasonable
basis to assume that he has seen cocaine. . . . He’s made a bald
denial that he has ever seen cocaine aside from on TV right here on
the stand. I believe that’s false and as a result, I propose to
cross-examine him on this, but I wanted to ask the Court about it in
advance.
Over the objection of defense counsel, the
trial judge, without explanation, permitted the prosecutor to proceed
with this line of questioning.
Q: Now, Mr. Copelin, isn’t it true that as
a condition of your release pending trial in this case, you were
required to report to the Pretrial Services Administration for drug
testing?
A: Yes.
Q: And isn’t it true that you tested
positive for cocaine on June 13th, 1991?
A: Yes.
Q: And you tested positive for cocaine on
June 14th, 1991.
A: Yes.
Q: And you tested positive for cocaine on
June 21st, 1991?
A: I don’t recall that one.
Q: You don’t recall that one?
A: No, sir.
Q: But despite having tested positive for
cocaine on at least two occasions, you’re telling the ladies and
gentlemen of the jury that you have never seen cocaine except on
television?
A: It could be anywhere. I never seen it,
never used it.
The government then went on to pursue
other issues. Defense counsel did not request a limiting instruction,
and the trial judge did not offer one sua sponte, either
immediately after this dialogue or as part of his final charge to the
jury.
Mr. Copelin argues 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 concedes, as he
must, 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. Rule 404(b)
of the Federal Rules of Evidence states:
Evidence of other
crimes, wrongs, or acts is not admissible to prove the character of a
person in order to show action in conformity therewith. It may,
however, be admissible for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident. . . .
Although it is not one of the listed
permissible purposes, an attempt to impeach through contradiction a
defendant acting as a witness is indisputably a legitimate reason to
introduce evidence of other crimes or wrongs. United States v.
Bell, 506 F.2d 207, 213 (D.C.Cir. 1974). If “bad acts” evidence is
offered for this reason, it is admissible unless “its probative value
is substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury or by considerations
of undue delay, waste of time, or needless presentation of cumulative
evidence.” FED.R.EVID. 403.
Mr. Copelin levels several attacks against
the district court’s admission of the evidence concerning his positive
drug tests. First, he contends that the government’s line of inquiry
violated the threshold requirement that impeachment evidence actually
contradict the witness’ testimony. This argument is unavailing,
however, because Mr. Copelin’s admission as to the positive drug tests
clearly tended to contradict his earlier assertion that he had only
seen drugs on television. Mr. Copelin responded to the government’s
initial queries by denying that he had ever had any direct
acquaintance with narcotics. It was consequently proper for the
district court to permit the government to impeach Mr. Copelin by
attempting to demonstrate that this statement was false.
Mr. Copelin also claims that the
government’s method of impeachment violated the ban on the use of
extrinsic evidence to impeach by contradiction on collateral matters.
It is true that this Circuit generally follows the rule that “a
witness may not be impeached by extrinsic evidence (contradiction by
another witness or evidence) on a collateral issue.” United States
v. Tarantino, 846 F.2d 1384, 1409 (D.C.Cir. 1988), cert.
denied, 488 U.S. 840, 109 S.Ct. 108, 102 L.Ed.2d 83 (1988). But
cf. Walder v. United States, 347 U.S. 62, 74 S.Ct. 354, 98
L.Ed. 503 (1954) (permitting government to use unlawfully obtained
extrinsic evidence to impeach false statement offered by defendant on
cross-examination that he had never dealt in or possessed narcotics);
United States v. Bell, 506 F.2d 207 (D.C.Cir. 1974) (entitling
prosecutor to impeach defendant with extrinsic evidence that he had
engaged in another drug transaction after the accused volunteered a
declaration of unfamiliarity with narcotics on cross-examination).
However, the rule disallowing the use of extrinsic evidence to impeach
a witness as to a collateral matter is irrelevant to this case,
because Mr. Copelin was impeached by his own statements on
cross-examination, not by the testimony of another witness or by
physical evidence. “[C]ases upholding a court’s exclusion of
extrinsic evidence offered to impeach a witness, on the ground of
the issue’s being ‘collateral,’ do not govern the scope of cross
examination itself.” United States v. Stock, 948 F.2d 1299,
1302 (D.C.Cir. 1991).
Mr. Copelin further argues that the
government should not have been allowed to place inadmissible evidence
before the jury by trapping him into opening the door by
contradiction. He seems to suggest that the government’s line of
questioning was merely a ploy to smuggle in the evidence regarding the
positive drug tests. But the courts have always recognized an
important distinction between effective cross-examination and unfair
tactics. When Mr. Copelin testified that he did not actually see David
Bailey selling drugs, it was not entirely unnatural for the government
to explore the basis for this response by inquiring whether Mr.
Copelin had the ability to recognize drugs in the first place. As the
Supreme Court has held in a related context, “If these questions would
have been suggested to a reasonably competent cross-examiner . . .
they were not ‘smuggled in’; and forbidding the Government to impeach
the answers to these questions by using contrary and reliable evidence
in its possession fails to take account of our cases.” United
States v. Havens, 446 U.S. 620, 626, 100 S.Ct. 1912, 1916,
64 L.Ed.2d 559 (1980).
It may well be that the trial judge would
have sustained timely objections by defense counsel to the
prosecutor’s questions concerning Mr. Copelin’s ability to recognize
drugs. Mr. Copelin’s attorney did not issue any such objections,
however, so in reviewing this aspect of the cross-examination, we are
limited to correcting “plain errors.” FED. R.CRIM.P. 52(b). The plain
error exception to the contemporaneous objection requirement should be
used sparingly, only for “particularly egregious errors,” United
States v. Frady, 456 U.S. 152, 163, 102 S.Ct. 1584, 1592, 71
L.Ed.2d 816 (1982), that “seriously affect the fairness, integrity or
public reputation of judicial proceedings.” United States v.
Atkinson, 297 U.S. 157, 160, 56 S.Ct. 391, 392, 80 L.Ed. 555
(1936). The district court’s failure to squelch the government’s
disputed line of questioning on its own initiative was certainly not
plain error, if it was error at all.
Overall, Mr. Copelin’s claim that the
district court erred by allowing the government to cross-examine him
as to his positive drugs tests must fail in the face of United
States v. Bell, 506 F.2d 207 (D.C.Cir. 1974), in which this Court
upheld the admission of “bad acts” evidence under almost precisely
identical circumstances. In Bell, the defendant in a narcotics
trial was asked by the prosecutor during cross-examination whether he
had seen his companions selling drugs on the day he was arrested. The
defendant responded that he had never seen drugs except on television.
The trial judge then permitted the government to call a rebuttal
witness to recount a drug purchase he allegedly made from Bell a few
days prior to his arrest. This Court held that it was proper for the
district court to admit such evidence.
In the instant
case, Bell represented himself not only as an industrious businessman
on Pier 1 merely to buy fish and chat with friends, but also as one
who had never seen narcotics except on television, and consequently
one who did not traffic in them. Evidence tending to show that Bell
had previously transacted a sale of narcotics obviously bore a high
degree of relevance to his credibility in disclaiming any acquaintance
with narcotics.
506 F.2d at 214-15. We see no distinction
between the present case and Bell that would warrant a
different result as to the admissibility of impeachment evidence.
There is one critical difference between
the cases, however. In Bell, the appellant failed to raise on
appeal the trial court’s failure to issue an immediate cautionary
instruction when it admitted the disputed evidence. The panel
consequently refused to consider the matter. 506 F.2d at 215 n. 42. In
the present appeal, on the other hand, Mr. Copelin clearly contends
that it was reversible error for the district court to fail to give a
limiting instruction concerning the permissible use of the impeachment
evidence. Although Mr. Copelin did not request a limiting instruction
at trial, he asserts that it was plain error for the District Court to
neglect to issue one sua sponte.
This Court has long expressed its
conviction as to the necessity of a cautionary instruction when
evidence is admitted for a limited purpose. See United States v.
Lewis, 693 F.2d 189, 196-97 (D.C.Cir. 1982) (survey of this
Court’s treatment of the issue). In the late 1960’s and early 1970’s,
this Court repeatedly suggested that it was invariably plain error for
the trial court to fail to give a limiting instruction. In United
States v. McClain, Judge Bazelon wrote:
We would hold
that whenever evidence is admitted only for a limited purpose, it is
plain error, in the absence of manifest waiver, to omit an immediate
cautioning instruction. The danger of prejudicial effect from such
evidence is so great that only an immediate and contemporaneous
instruction can be considered sufficient to protect defendants.
440 F.2d 241, 246 (D.C.Cir. 1971). See
also Jones v. United States, 385 F.2d 296, 300 (D.C.Cir.
1967); United States v. Bussey, 432 F.2d 1330, 1334-35 (D.C.Cir.
1970).
As the years passed, however, this Court
chipped away at the broad implications of this doctrine. In case after
case, we held that the failure to give an unrequested limiting
instruction did not constitute reversible error. Although the
departures from the strict McClain approach were justified for
various reasons, Judge Wright, in United States v. Lewis,
discerned a general theme:
When all the dust
is settled and pushed aside, it becomes clear that McClain and
its progeny find that reversible error occurs only when evidence
that substantially prejudices the defendant is admitted
without immediate cautioning instruction as to its permissible uses.
693 F.2d at 197 (emphasis added).
This Court therefore no longer deems the
omission of a limiting instruction to constitute plain error in every
case. Rather, the lack of a cautionary instruction is plain error only
when the disputed evidence “substantially prejudices” the defendant.
Nonetheless, this Court has repeatedly suggested that, in the absence
of a limiting instruction, the defendant is invariably “substantially
prejudiced” when evidence that could also have substantive
significance is admitted solely for impeachment purposes. Indeed, we
have verged on suggesting that it is per se plain error
for a trial judge to fail to issue an immediate limiting instruction
in such a circumstance. For example, in United States v. Bobbitt,
450 F.2d 685 (D.C.Cir. 1971), this Court held that the trial judge in
the case at issue did not commit plain error by omitting a cautionary
instruction, but we then went on to observe:
There are
instances where the failure to limit the jury’s use of other crimes is
error and may even be plain error. The most obvious occurs where the
other crime is introduced, not as substantive evidence, but solely as
impeachment. In that situation, the evidence by definition has no
direct bearing on any substantive issue at trial, but solely on the
credibility of a witness on the stand. Therefore the trial court has a
duty to see that the jury does not cross the boundary between
credibility and substance in making its inferences from the prior act.
He must not only act sua sponte, whether or not a request is made, but
should give an appropriate instruction immediately before or after the
impeachment evidence is submitted.
Id. at 691.
Similarly, in United States v. Leonard,
this Court wrote, “In this circuit, it has been firmly established
that when evidence is admitted for the limited purpose of impeaching a
witness, it is plain error, in the absence of a manifest waiver, for
the district court to omit an immediate instruction.” 494 F.2d 955,
964-65 (D.C.Cir. 1974). In Lewis itself, this Court, while
rejecting the blanket prophylactic rule requiring a cautionary
instruction whenever evidence is admitted for a limited purpose,
nonetheless noted, “[W]hen a party seeks to impeach a witness by prior
inconsistent statements it is plain error not to give an immediate
limiting instruction if the jury could give substantive effect to the
impeachment evidence.” 693 F.2d at 197 n. 34.
We do not hold that it is 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. The Supreme Court, noting the “pointlessness” of
reviewing “harmless plain errors,” has held that a “per se
approach to plain-error review is flawed.” United States v. Young,
470 U.S. 1, 17 n. 14, 105 S.Ct. 1038, 1047 n. 14, 84 L.Ed.2d 1 (1985).
The plain-error doctrine requires an appellate court at least to find
that the claimed error affected substantial rights and had unfair
prejudicial impact on the jury’s deliberations.
Id.
Nonetheless, this Circuit’s cases indicate
that there is a huge presumption of plain error when a trial judge
omits a cautionary instruction when admitting impeachment evidence to
which a jury could give substantial effect against a criminal
defendant. The government fails to persuade us that this case was one
of the rare situations of this type in which a limiting instruction
was not necessary. The information regarding Mr. Copelin’s positive
drug tests was “bad acts” evidence of the most prejudicial sort. Not
only did the revelation that he used cocaine on other occasions
subject him to the opprobrium that members of the jury may have felt
toward drug users, but it also tended to bolster the government’s
contention that he was the man who sold the same drug to Officer Moore
on the day in question. There are few circumstances in which a
cautionary instruction would be more appropriate.
The government attempts to dismiss the
necessity of a limiting instruction in this case by asserting that the
positive drug tests were admitted not only for impeachment purposes,
but also to establish that Mr. Copelin was knowledgeable about crack
cocaine. The government relies on United States v. Thomas, 459
F.2d 1172 (D.C.Cir. 1972), for the principle that it is not reversible
error for a trial court to fail to give special cautionary
instructions when evidence is introduced for “multiple rather than
limited purposes.” Id. at 1175.
The government’s use of Thomas is
clearly inapposite, for that case addressed the difficulty of framing
a meaningful limiting instruction when evidence is admitted for many
“diffused” purposes. Id. Even by the government’s own
reckoning, the district court in the present case admitted the
disputed evidence for at most two distinct purposes: impeachment and
proof of knowledge. And in fact, despite the government’s contention,
impeachment was the court’s sole rationale for admitting the evidence.
During the bench conference regarding the admissibility of the drug
test evidence, the prosecutor argued only that the evidence should be
admitted to impeach Mr. Copelin’s testimony. The prosecutor stated,
“He’s made a bald denial that he has ever seen cocaine aside from on
TV right here on the stand. I believe that’s false and as a result, I
propose to cross examine him on this. . . .” The judge overruled the
defense counsel’s objection to the evidence without comment,
implicitly validating the impeachment justification proffered by the
government.
Neither the prosecutor nor the district
judge ever suggested that the evidence should be admitted to establish
Mr. Copelin’s knowledge about cocaine. Indeed, this rationale for
admitting the drug tests would have made no sense in the context of
the trial, because Mr. Copelin’s defense was not based on a purported
ignorance about drugs. He did not contend that his lack of his
familiarity with cocaine rendered him unable knowingly to sell or
possess the drug. Rather, Mr. Copelin simply asserted that he was not
the person who sold the crack to Officer Moore and that he never
possessed the brown medicine bottle.
III. CONCLUSION
The district court permitted the
government to cross-examine Mr. Copelin as to his positive drug tests
only for impeachment purposes. If the jury considered the evidence for
other, impermissible purposes, it was likely to be substantially
prejudiced against Mr. Copelin. It therefore was imperative for the
trial judge to issue an immediate cautionary instruction informing the
jury as to the limited allowable uses of the drug test evidence. His
failure to do so constituted reversible plain error. Whatever the
efficacy of limiting instructions, the courts have used them to temper
the potential prejudice caused by marginal evidence admitted for
purposes other than establishing the charged crime.
We therefore overturn Mr. Copelin’s
conviction and remand to the district court for a new trial. Because
we reverse the conviction, it is not necessary for us to consider the
sentencing issue.
Reversed and Remanded.
