Appeal from the Superior Court of the District of Columbia (M-9974-01). (Hon. Frederick H. Weisberg, Trial Judge).
Before Steadman and Schwelb, Associate Judges, and Nebeker, Senior Judge.
The opinion of the court was delivered by: Steadman, Associate Judge
Appellant and his co-defendant were selling music compact discs ("CDs") from a table they had set up on the sidewalk near Union Station. The CDs were "counterfeit"; that is, they were manufactured without the authorization of the copyright owner. Appellant was convicted at a bench trial of attempted deceptive labeling of a sound recording, in violation of D.C. Code §§ 22-103 (attempt) and -3814.1 (deceptive labeling) (1996).*fn1
The only issue on appeal is whether the trial court erred in admitting, in the government's case in chief, evidence of prior criminal conduct in violation of the strictures of the case law emanating from Drew v. United States, 118 U.S. App. D.C. 11, 331 F.2d 85 (1964).*fn2 Specifically, evidence was introduced that five weeks prior to the date of the offense for which he was on trial, appellant had been arrested, also in the vicinity of Union Station, when he was also vending counterfeit CDs and was warned at that time that he was selling counterfeit CDs. (The actual arrest in that prior case was for vending without a license.) The government takes the position that the evidence went to the issue of appellant's knowledge that the CDs were counterfeit at the time of the offense for which he was on trial. Appellant argues that his knowledge was not then a materially contested issue, and his defense, in fact, was that he was not selling the CDs at all but rather just happened to be passing by at the time. The introduction of the evidence, he asserts, thus violated the prohibition that he reads into Thompson v. United States, 546 A.2d 414 (D.C. 1988), against the introduction of Drew evidence which bore only upon issues not genuinely in dispute. We conclude that this is far too broad a reading of Thompson and affirm the conviction.
The principal government witness in its case in chief was Officer Tracey Hanbury. He testified that he saw two men selling compact discs from a table they had set up on the sidewalk near Union Station. He saw both men sell CDs to customers. When he confronted the two individuals, he realized they were the same two men whom he had arrested some five weeks previously after witnessing them selling CDs outside Union Station. Although the prior arrest was for vending without a license, Officer Hanbury had advised appellant that the CDs he was selling were counterfeit.
Officer Hanbury further testified that the CDs he observed in appellant's possession at the time of the second arrest were "obviously counterfeits." He noted: "The front of the CD [was] just a thin piece of paper . . . that was copied on the CD and . . was cut with a pair of scissors where some of them don't have perfectly straight lines. . . They were also wrapped in saran wrap type wrapping and that wasn't consistent with what you would see in a music CD store."
The government presented an expert witness, Phillip Brooks, who testified that counterfeit CDs often have "poor shrink wrappings . . . poorly folded corners . . . while a legitimate compact disc is characterized by tight corners, [and] tight[ly] sealed." He further explained that "the insert card on a counterfeit disc will be a thin piece of paper . . . of poor quality," while the insert cards on a legitimate compact disc "are one of the more expensive aspects of the disc." He also said that the playing side of a counterfeit compact disc "will be greenish or bluish in tint which indicates it's a CD recordable," while "the legitimate compact disc will be silver and . . . legitimate record companies do not manufacture their compact disc on CD recordables." Mr. Brooks identified as counterfeits a random selection of discs from the box of 62 CDs seized from appellant.
Testifying in his own defense, appellant said he had come to Union Station for a dinner and movie with his common-law wife. After he parked his car and was walking toward the entrance, a police car came speeding towards him, two officers jumped out and escorted appellant over to the co-defendant and placed them under arrest. Appellant testified he was not selling any CDs and didn't receive any money from any customers. Appellant stated that he had never sold CDs in the District, but had other people sell CDs for him. Appellant acknowledged that he had been previously arrested and was then informed that the CDs being sold at his vending table were counterfeit but he said that at the time he had no idea that they were counterfeit. Once he found this out, he stopped carrying CDs at his vending table.
Appellant's co-defendant testified that all of the property on the table belonged to him and that he had not given appellant any money that evening and, in fact, the co-defendant had not made a single sale all evening.
In rebuttal, the government called Officer Aisha Jackson, who testified that on several previous occasions she had "shut down" appellant for selling CDs without a vending license in the vicinity of Union Station.*fn3 She accompanied Officer Hanbury at the time of the prior arrest when the warning was given to appellant that the CDs that he was selling were counterfeit. On that occasion, appellant acknowledged that the CDs were his and stated, "Yeah, these are mine, everybody is doing it."
"If evidence of prior bad acts that are criminal in nature and independent of the crime charged is offered to prove predisposition to commit the charged crime, it is inadmissible. . .. 'It is a principle of long standing in our law that evidence of one crime is inadmissible to prove disposition to commit crime, from which the jury may infer that the defendant committed the crime charged. Since the likelihood that juries will make such an improper inference is high, courts presume prejudice and exclude evidence of other crimes unless that evidence can be admitted for some substantial, legitimate purpose.'" Johnson v. United States, 683 A.2d 1087, 1092 (D.C. 1996) (en banc) (quoting Drew, supra, 331 F.2d at 89-90) (other citations omitted), cert. denied, 520 U.S. 1148 (1997). This presumption of prejudice may be overcome if "the [other crimes] evidence [is] offered for a substantial, legitimate purpose,"*fn4 and "the court. . . consider[s] the relative probative value of the evidence and the danger of unfair prejudice that it poses, and conclude[s] that the balance favors admission." Id. at 1092-93 (citations ...