43 A.3d 260
D.C.2012Background
- Police arrested Plummer Aug 11, 2007 outside the Petworth Metro Station for deceptive labeling; backpack contained 30 DVDs and 39 CDs and other items.
- He was charged with two counts: deceptive labeling for sound recordings (CDs) and audiovisual works (DVDs).
- At the November 14, 2007 trial date, he planned to plead guilty; Rule 11 inquiry raised doubt about intent to distribute and the plea was aborted.
- The trial proceeded as a non-jury trial with the judge presiding; the judge sua sponte queried his potential recusal based on the aborted plea.
- The judge questioned the government witnesses and defense, and then continued the trial after determining there was no objection to his participation.
- Evidence included expert testimony on labeling and chain of custody issues for the CDs/DVDs; the judge admitted the discs and found guilt on both counts.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Waiver of judge disqualification | Plummer entitled to recusal; Canon 3(E)(1) grounds waived | Waiver ineffective to preserve right to recusal | Waived; trial continued with judge serving as trier of fact |
| Admissibility of experts on sale indicators | Experts' opinions on sale indicia are improper and unsupported | Judge did not rely on those opinions; no reversible error | Harmless or non-reversible error; reliance on circumstantial evidence sufficed |
| Chain of custody sufficiency | Discs not properly identified/marked; chain defective | No tampering; custody continuity shown by general handling | No abuse of discretion; weight, not admissibility, affected credibility |
| Merger of two deceptive labeling counts | Counts should merge as same offense | Media categories are distinct offenses under statute | Counts do not merge; CDs vs DVDs treated as separate offenses |
Key Cases Cited
- Briscoe v. United States, 528 A.2d 1243 (D.C.1987) (merger depends on same offense scope; different media support separation of counts)
- Bean v. United States, 576 A.2d 187 (D.C.1990) (convictions for different dangerous weapons may merge; context matters)
- Fleming v. United States, 923 A.2d 830 (D.C.2007) (chain-of-custody concerns affect weight, not admissibility)
- Gilmore v. United States, 742 A.2d 862 (D.C.1999) (evidence-handling care affects weight, not admissibility)
- Banks v. United States, 516 A.2d 524 (D.C.1986) (plea-related recusal decision and timing implications)