Plummer v. United States

• Citation: 43 A.3d 260
• Decision Date: 10 May 2012
• Docket Number: No. 07–CM–1299.,07–CM–1299.
• Parties: Gary A. PLUMMER, Appellant, v. UNITED STATES, Appellee.
• Court: Court of Appeals of Columbia District

43 A.3d 260

Gary A. PLUMMER, Appellant,

v.UNITED STATES, Appellee.

No. 07–CM–1299.

District of Columbia Court of Appeals.

Submitted June 28, 2011.

Decided May 10, 2012.

Moses A. Cook was on the brief for appellant.

Ronald C. Machen Jr., United States Attorney, and Roy W. McLeese III, Elizabeth Trosman, and Kevin Andrew Chambers, Assistant United States Attorneys, were on the brief for appellee.

Before GLICKMAN and FISHER, Associate Judges, and SCHWELB, Senior Judge.

GLICKMAN, Associate Judge:

After a bench trial, appellant Gary Plummer was convicted of two counts of deceptive labeling in violation of D.C.Code § 22–3214.01 (2001). ¹ Seeking to overturn those convictions on appeal, he argues that the trial judge should have recused himself after presiding over his unsuccessful attempt to plead guilty. Appellant further contends that the judge committed reversible error by admitting certain evidence, and that if the two counts of conviction survive, they should merge. We conclude that appellant waived any disqualification on the judge's part and is not otherwise entitled to the relief he seeks.

I.

On August 11, 2007, Officer Jeff Janczyk and two other police officers were in an unmarked police car on Georgia Avenue in Northwest Washington, D.C., when they noticed appellant engaging people in conversation outside the Petworth Metro Station. At first Officer Janczyk thought appellant was panhandling, but then he saw that appellant was holding some DVDs in his hand. Leaving the car and approaching appellant to investigate, Officer Janczyk observed cases of DVDs in appellant's open backpack. After making inquiry, the officers arrested appellant for violating the deceptive labeling law and seized his backpack, which contained an assortment of DVDs and CDs along with appellant's cell phone and business cards.

Appellant was charged by information with two counts of deceptive labeling—one count for the sound recordings (the CDs) found in his backpack, and the other count for the audiovisual works (the DVDs).² When the case was called for trial on November 14, 2007, appellant's counsel announced that appellant proposed to plead guilty to both counts. In response to a question from the judge, appellant confirmed that he wished to plead guilty to the information. Appellant stated that, on his counsel's advice, he was “just trying to get this over with .... and not to waste the court's time.”

Upon hearing the prosecutor's initial factual proffer at the beginning of the Rule 11 inquiry,³ however, the judge expressed doubt as to whether the government could prove that appellant had the requisite intent to distribute the merchandise found in his possession for “commercial advantage or private financial gain.” ⁴ The prosecutor consulted with his police witnesses and then indicated to the judge that they actually saw appellant offering the counterfeit discs to several people standing around him outside the Petworth Metro Station. The judge then turned to appellant and asked him directly whether the proffer was true and whether he was “trying to sell those DVDs and CDs at the Metro?” To that, appellant replied: “No, no, no, no, no, no.” Appellant declared that the proffer was “entirely false” and “didn't happen”; he denied that he was “surrounded by a bunch of people” and claimed that he had just left a restaurant across the street from the Petworth Station and was “getting on the Metro” when the police stopped him. Following this denial by appellant of the charges against him, the judge stated that he could not accept a guilty plea and “we need to have a trial.” Appellant's counsel said, “That's fine, Your Honor.”

After a brief break, the trial began—a non-jury proceeding over which the judge presided as trier of fact. After only a few minutes, however, the judge interrupted the proceedings to raise, sua sponte, the question of his own recusal:

THE COURT: Excuse me just a minute.... [D]uring the time that we were initially conducting a Rule 11 inquiry here, I'm trying to remember whether there was a time when [appellant] said in answer to any of my questions that he was guilty of these offenses. Because, if so, absent a waiver from him, I shouldn't be presiding over a non-jury trial where somebody has admitted their guilt at some point in a plea proceeding that gets aborted.

Stating that he had “no memory of [appellant] admitting his guilt,” and that he felt “completely unaffected by the [plea] proceeding in terms of being able to fairly judge the evidence in this case,” the judge inquired whether anyone had a different recollection or objected to his continued participation in the trial. He “just want[ed] to make sure that ... somewhere along the line ... [appellant] didn't volunteer that he was guilty.” In response, appellant's counsel agreed that appellant “did not indicate that he was guilty of any criminal act.” The prosecutor added that “[i]t had never gotten to the point where” appellant was asked whether he pleaded guilty to the charges.

The judge asked appellant's counsel to “make sure that Mr. Plummer has no objection, and then I'll ask him directly on the record as to whether or not it's agreeable for me to proceed to try this case[.]” Appellant and his counsel conferred off the record, after which counsel reported back to the judge as follows:

DEFENSE COUNSEL: Thank you, Your Honor. I have discussed the matter with my client. I have asked him if he feels he admitted guilt during the proceedings. He indicates that he did not. I asked him if he believes that he said something that the court would conclude that he was guilty on even if he didn't admit it. He has indicated that he does not believe he said that. I asked him specifically if he had any objection to Your Honor trying this case, to hearing the evidence in this case and reaching the decision based upon what has transpired here today. He indicates that he has no objection.

The judge then addressed appellant personally and asked him if his counsel had spoken truly. Appellant confirmed that what his counsel said was “correct.”

Satisfied that he could hear the case without objection, the judge proceeded with the trial. Officer Janczyk testified to his observations of appellant outside the Petworth Metro Station and identified the physical evidence against him: appellant's backpack, his business cards, and a total of 30 DVDs and 39 CDs discovered in the backpack. (As discussed below, the DVDs and CDs were admitted in evidence over appellant's objection that the government had not established a proper chain of custody for them.) Many of the discs were duplicates.

The government called two expert witnesses to testify that the discs were deceptively labelled copies. Michael Leroy Middleton, a consultant to the Recording Industry Association of America, was qualified as an expert on illegal recording and deceptive labeling of CDs. He testified that he had examined five of the CDs taken from appellant and had determined that none of them displayed the manufacturer's true name and address. Based on the inferior packaging and appearance of the CDs, Middleton opined that they were obviously illegal copies. Over appellant's objection (which we discuss below), Middleton also testified that, in his opinion, appellant's possession of multiple copies of counterfeit CDs indicated that he was selling them.

Allan Meyer, qualified as an expert in the manufacturing and distribution of DVDs, provided similar testimony. He identified several features of the DVDs found in appellant's backpack, including their packaging, film quality, and lack of appropriate codes, that revealed they were not legal copies. Meyer also opined that the DVDs were obviously counterfeit, and that possession of multiple copies was consistent with an intent to offer them for sale.

Appellant did not testify or present any other evidence in his defense. At the conclusion of the trial, the judge found him guilty on both counts of deceptive labeling.

II.

Appellant's foremost contention in this court is that the trial judge violated Canon 3(E)(1) of the 1995 District of Columbia Code of Judicial Conduct and thereby denied him his due process right to a neutral arbiter by presiding over his trial after having heard him express his intention to plead guilty.⁵ Appellant raises this claim for the first time on appeal; at trial, as described above, he expressly declined to object to the judge's participation on the grounds now advanced. We reject the claim. In the first place, we are not persuaded that appellant or his counsel said anything in the truncated plea proceeding that obligated the judge to recuse himself. But even assuming the judge was subject to a disqualification under Canon 3(E)(1) because an objective observer reasonably might have questioned his ability to remain impartial, appellant elected not to question it, and we conclude that he waived his assumed right to recusal and is barred from asserting it now.

As the trial judge recognized, his recusal from sitting as the trier of fact clearly would have been warranted had appellant actually admitted his guilt or otherwise incriminated himself in the plea proceeding.⁶ While such an acknowledgment would have been inadmissible at trial,⁷ it would have been difficult for any trier of fact to put it out of mind, and, at the very least, the impartiality of the judge who heard it reasonably could be questioned by “an objective observer” ⁸ or “average citizen.” ⁹ Impartiality, as our current 2012 Code helpfully defines it, means not only the “absence of bias or prejudice in favor of, or against, particular parties or classes of parties,” but also the “maintenance of an open mind in considering issues that may come before a judge.” ¹⁰ Even “[t]he disciplined judicial mind should not be subjected to any unnecessary strain; ... the most austere intellect has a subconscious.” ¹¹

Here, though, appellant made no incriminating admissions. He expressed his...