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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 17-CM-1293
JALIL RAHMAN, APPELLANT,
v.
UNITED STATES, APPELLEE.
Appeal from the Superior Court
of the District of Columbia
(CMD-1980-17)
(Hon. Robert A. Salerno, Trial Judge)
(Submitted March 20, 2019 Decided April 15, 2019) *
Nicholas Q. Elton was on the brief for appellant.
Jessie K. Liu, United States Attorney, and David P. Saybolt, Elizabeth
Trosman, Assistant United States Attorneys, were on the brief for appellee.
Before GLICKMAN and THOMPSON, Associate Judges, and FERREN, Senior
Judge.
FERREN, Senior Judge: Appellant Jalil Rahman appeals his conviction for
unlawful entry in violation of D.C. Code § 22-3302 (2012 Repl.) on two grounds:
*
The decision in the case was originally issued as an unpublished
Memorandum Opinion and Judgment. It is now being published upon the court’s
grant of a motion to publish filed by appellee.
2
(1) the trial court erred in denying his motion under the Jencks Act 1 to require the
government to produce a report prepared by a special police officer (“SPO”) or,
alternatively, to strike the SPO’s testimony; and (2) there was insufficient evidence
to support his conviction. We affirm.
I. Factual and Procedural Background
At approximately 1:30 a.m. on February 2, 2017, appellant entered a
McDonald’s restaurant located in the District of Columbia. SPO Latisha
Chapman, who was employed by McDonald’s to “mak[e] sure people don’t loiter,
make sure people don’t steal soda,” and “put [people] out for being disorderly,”
testified that she observed appellant sit down at the back table with his bags for
approximately four or five minutes. At that point, she informed appellant that
McDonald’s has a “no loitering policy” and that he would “need to buy something
from McDonald[’]s to sit in McDonald[’]s.” Appellant responded that he did not
have any money and could not buy anything, but “was not going anywhere.” SPO
Chapman “repeatedly” told appellant that “he needed to leave if he’s not buying
something,” but appellant insisted that “he’s not going nowhere.”
1
18 U.S.C. § 3500 (2012). See also Jencks v. United States, 353 U.S. 657
(1957).
3
Appellant then asked a customer if he could have some money so he could
buy something to eat. SPO Chapman told appellant that he could not ask
customers for money inside the McDonald’s because “[t]hat’s considered
panhandling.” SPO Chapman summarized her encounter with appellant as
follows: “he was on the property, he refuse[d] to leave, I told him several times to
leave, he started panhandling, and the police officer took action.”
After SPO Chapman had been interacting with appellant for approximately
ten minutes, Metropolitan Police Department (“MPD”) officer Joseph Thomas
approached. Officer Thomas testified that he was conducting a business check at
the McDonald’s and was about to leave when he “overheard the security
officer . . . having a conversation with [appellant] in reference to needing to leave.”
SPO Chapman told appellant “[t]o leave,” but “[h]e didn’t leave.” Then, Officer
Thomas went over and explained to appellant that the McDonald’s is “private
property,” and so “if the security [officer] wants you to leave for whatever reason
then you need to leave.” Officer Thomas testified that, after this exchange,
appellant “left out the door.”2
2
SPO Chapman testified that appellant never left the McDonald’s. Officer
Thomas testified that appellant did go outside the entrance to the McDonald’s, but
he did not see how far appellant went after that.
4
Officer Thomas stood inside the McDonald’s for approximately three to four
minutes “talking to the security officer with [his] back towards the door,” when
appellant re-entered the restaurant and startled Officer Thomas by coming up from
behind him and asking for his name and badge number. At that point, Officer
Thomas arrested appellant for unlawful entry.
The matter proceeded to a one-day bench trial. During re-cross examination
of SPO Chapman, appellant learned that she had prepared a written report after the
incident detailing what had transpired. SPO Chapman explained that she was not
obligated “[t]owards the police officer” to prepare this report, but “did a report for
[her] company . . . [b]ecause they want to know why I want him off the property.”
She stated that she had e-mailed the report after it was completed, and kept it at the
McDonald’s office.
Appellant’s counsel argued that the report was subject to the Jencks Act, and
asked that the report be provided or that SPO Chapman’s testimony be stricken.
The trial judge denied the request, explaining that “although it sounds like her
report is a written statement by her that is adopted by her, it’s at this point not
producible because it’s not within the possession of the [g]overnment.” The judge
further explained that he was “not going to find that internal McDonald[’]s . . .
5
reports are within the possession of the [g]overnment” and concluded that “there’s
no obligation for the [g]overnment to produce as Jencks . . . internal McDonald[’]s
corporate documents that . . . the [g]overnment doesn’t otherwise have.”
At the close of the government’s case, appellant moved for a judgment of
acquittal. Appellant argued that because he had left the McDonald’s after being
instructed to leave by Officer Thomas, was not barred from the restaurant, and re-
entered with a good-faith belief that he could return to ask for Officer Thomas’s
name and badge number, the government had failed to prove him guilty of
unlawful entry beyond a reasonable doubt.
In ruling on the motion, the trial judge explained that “there are two varieties
of unlawful entry. The first variety is entry without authority and the second
variety is remaining without authority. The arguments we’ve heard about going
back into the McDonald[’]s to get the badge number and name of the officer go to
the entry without authority type of unlawful entry.” But the court concluded that,
even if those arguments were successful, they would not be dispositive because “a
reasonable fact-finder here could find that [there was an] unlawful entry, without
even dealing at all with the return to the McDonald[’]s.” The trial judge explained
that “[i]t wasn’t until the police officer arrived that either [appellant] agreed to
6
leave or was escorted out. But, prior to that, he remained for 10 minutes after he
had been told to leave by special police officer Chapman. And it’s on that basis
that a reasonable fact-finder could find an unlawful entry in this case.”
Accordingly, the judge denied appellant’s motion.
After closing arguments, the trial court found appellant guilty of unlawful
entry, explaining that it was “not concluding that an unlawful entry occurred in this
case based on the return to McDonald[’]s to get the name and badge number. The
[c]ourt is concluding that an unlawful entry [occurred] in this case . . . based on the
failure to leave when directed by the special police officer to do so.” The trial
judge rejected appellant’s argument that briefly leaving the restaurant “wip[ed] the
slate clean [as to his] underlying . . . initial failure to leave,” in part because of “the
very short period of time between when he left and when he returned,” and because
“the fact that [appellant] was given a break and not immediately arrested at that
time when he could’ve been does not preclude the officer from later doing so.”
Appellant subsequently filed this appeal challenging both the trial court’s Jencks
Act ruling and the sufficiency of the evidence.
7
II. Standard of Review
The proper construction of the Jencks Act is a legal question which we
review de novo.3 But because the “administration of the Jencks Act must be
entrusted to the good sense and experience of the trial judges subject to
appropriately limited review of appellate courts,”4 we review the trial court’s
rulings on Jencks Act issues for abuse of discretion.5 “Moreover, even if the court
erred in its application of the Jencks Act, any such error is subject to a harmless
error analysis.”6
Our review of sufficiency-of-the-evidence claims is “deferential, giving ‘full
play to the responsibility of the trier of fact fairly to resolve conflicts in the
testimony, to weigh the evidence, and to draw reasonable inferences from basic
3
See Weems v. United States, 191 A.3d 296, 300 (D.C. 2018) (construing
Super. Ct. Crim. R. 16).
4
Robert Johnson v. United States, 800 A.2d 696, 699 (D.C. 2002) (quoting
United States v. Augenblick, 393 U.S. 348, 355 (1969)).
5
Lazo v. United States, 54 A.3d 1221, 1231 (D.C. 2012).
6
Lyles v. United States, 879 A.2d 979, 982-83 (D.C. 2005).
8
facts to ultimate facts.’” 7 We accept the trial judge’s factual findings after a bench
trial unless they are “plainly wrong or without evidence to support them,” 8 and
“deem the proof of guilt sufficient if, ‘after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.’” 9
III. Analysis
A. The Jencks Act
The Jencks Act, which is implemented in the District of Columbia by Rule
26.2 of the Superior Court Rules of Criminal Procedure, “serves the concurrent
purposes of aiding the search for truth by facilitating the impeachment of a witness
who has given a statement to the government, while at the same time regulating
access by the defense to materials and evidence within the government’s
7
Rivas v. United States, 783 A.2d 125, 134 (D.C. 2001) (en banc) (quoting
Jackson v. Virginia, 443 U.S. 307, 319 (1979)).
8
Cannon v. United States, 838 A.2d 293, 296-97 (D.C. 2003) (quoting
D.C. Code § 17-305(a) (2001)) (internal quotation marks and alteration omitted).
9
Rivas, 783 A.2d at 134 (quoting Jackson, 443 U.S. at 319).
9
possession.’” 10 “Before the government may be required to turn over Jencks
material to the defense,” it is a prerequisite that “[t]he material must be in the
possession of the government.”11 The first issue we must decide, then, is whether
SPO Chapman’s report was “in the possession of the government” for purposes of
the Jencks Act.
At trial, the prosecution represented that it did not have, and never had, SPO
Chapman’s report in its actual possession. Appellant has presented no evidence to
the contrary, and the prosecution has confirmed on appeal that its “trial file
contains no paperwork completed by SPO Chapman.” We therefore defer to the
trial court’s finding, which is not “plainly wrong or without evidence to support it,”
that the prosecution did not actually possess SPO Chapman’s report.12
However, appellant contends that even if the prosecution never possessed
the report, SPO Chapman’s possession of the report is sufficient to impute
possession to the government. We have held that the obligations imposed by the
10
Lyles, 879 A.2d at 983 (quoting March v. United States, 362 A.2d 691,
698 (D.C. 1976)) (emphasis in original).
11
Id. & n.12.
12
D.C. Code § 17-305 (2012 Repl.).
10
Jencks Act “extend[] beyond the individual prosecutor to the government ‘as a
whole, including its investigative agencies.’” 13 “Nevertheless, if a statement is not
in the possession of ‘the prosecutorial arm of the government, nor in the possession
of the government at all,’ the government is not obliged to produce it.”14
Appellant maintains that because SPOs are “recognized as an arm of the
government in certain circumstances,”15 SPO Chapman’s possession of the report
constitutes possession by the government for purposes of the Jencks Act.
The merits of this argument turn on whether, on the facts of this case, SPO
Chapman “can be deemed a member of what we have called ‘the prosecution
13
Lyles, 879 A.2d at 983 (quoting United States v. Bryant, 439 F.2d 642,
650 (D.C. Cir. 1971)).
14
Id. (quoting Nelson v. United States, 649 A.2d 301, 308 (D.C. 1994)).
15
See, e.g., Limpuangthip v. United States, 932 A.2d 1137, 1143 (D.C.
2007) (explaining that, for Fourth Amendment purposes, “SPOs are not in all their
actions equated with regular police officers, but an SPO does act as a state agent or
instrument when the challenge involves the arrest of a suspect and actions related
thereto” (internal quotation marks and alterations omitted)); Moorehead v. District
of Columbia, 747 A.2d 138, 143-46 (D.C. 2000) (stating that “[w]hile there may be
cases in which the particular facts show that a special police officer is an agent of
the District” for respondeat superior purposes, “status as an SPO is not
determinative of a principal-agent or master-servant relationship”).
11
team.’” 16 In past cases raising this issue, we looked to: (1) whether the actor
performed a governmental function; and (2) whether the actor, though performing
in a proprietary function, was “sufficiently involved in the prosecution or
investigation of a criminal offense so that, for discovery purposes, the function
may be deemed ‘governmental.’” 17
Here, the trial court’s implicit finding that SPO Chapman’s report was
proprietary in nature is well-supported. Although SPOs are subject to varying
regulations, 18 we are aware of no regulation requiring an SPO to prepare an
incident report, and appellant cites none. SPO Chapman testified that she was not
obligated “[t]owards the police officer” to prepare the incident report, but prepared
it “for [her] company” because “they want to know why I want him off the
property.” The report was apparently kept in a McDonald’s office and e-mailed to
16
Myers v. United States, 15 A.3d 688, 690 (D.C. 2011) (quoting Robinson
v. United States, 825 A.2d 318, 328 (D.C. 2003)).
17
Id. at 691 (concluding that a digital video recording from a WMATA bus
was not in the government’s possession for purposes of Super. Ct. Crim. R. 16).
See also Wilson v. United States, 568 A.2d 817 (D.C. 1990), vacated on other
grounds, 568 A.2d 817 (D.C. 1991) (concluding that a recorded transmission of a
WMATA bus driver reporting an assault was subject to the Jencks Act). Although
the decision in Wilson was vacated and is no longer binding precedent, it
nonetheless provides some useful guidance here. Cf. Myers, 15 A.3d at 691 n.8.
18
See 6A D.C.M.R. 1100-10.
12
McDonald’s personnel. There is no evidence that it was ever provided to the
prosecution or police, or that it was used as part of their investigation. As a result,
the trial court’s finding that SPO Chapman’s report was an “internal McDonald[’]s
corporate document[]” was not “plainly wrong or without evidence to support it.”19
In preparing the report, SPO Chapman performed a proprietary, and not
governmental, function.20
Nor was SPO Chapman “sufficiently involved” in appellant’s arrest to
become a member of the prosecution team. Although SPO Chapman initially
notified appellant that he could not loiter or panhandle inside the McDonald’s and
would have to leave, she testified that, when Officer Thomas approached the
situation, “he then took over and [she] observed[.]” The testimony at trial was
unambiguous that appellant was detained, handcuffed, arrested, and escorted out of
the McDonald’s solely by Officer Thomas. There is no evidence that SPO
Chapman assisted Officer Thomas in the arrest in any way. On this record, then,
we cannot say that SPO Chapman was “sufficiently aligned with and subject to the
19
D.C. Code § 17-305.
20
Cf. Weems, 191 A.3d at 304 (ruling that items in the possession of Wal-
Mart asset protection staff were not in the possession of the government in part
because the staff members “were private parties acting as agents of their private
employer to protect its property from theft, not as agents of law enforcement”).
13
direction of the police or prosecutor as to be deemed a member of the prosecution
team[.]” 21
In sum, we conclude that the trial court did not abuse its discretion in ruling
that SPO Chapman’s report, though prepared by an SPO, was an “internal
McDonald[’]s corporate document[]” not “in the government’s possession” for
purposes of the Jencks Act.
B. Sufficiency of the Evidence
“The District of Columbia unlawful entry statute provides for the
punishment of anyone who remains on either private or public property without
lawful authority and who refuses to leave on the demand of the person lawfully in
charge.”22 “As applied to private property,” we have explained, “the two
21
Weems, 191 A.2d at 305; see also Lyles, 879 A.2d at 983-85 (concluding
that documents in the possession of the Prince George’s County police were not in
the possession of the Metropolitan Police Department because the two entities “did
not undertake a joint investigation”).
22
O’Brien v. United States, 444 A.2d 946, 948 (D.C. 1982). The statute
provides, in full:
Any person who, without lawful authority, shall enter, or
attempt to enter, any private dwelling, building, or other
(continued…)
14
components of the statute merge. The mere demand of the person lawfully in
charge to leave necessarily deprives the other party of any lawful authority to
remain on the premises.”23
Here, the trial court’s findings that: (1) the McDonald’s was private
property; (2) SPO Chapman was lawfully in charge of the property and had the
authority to ask visitors to leave; (3) SPO Chapman “stated clearly” and “repeated
several times” her request for appellant to leave the property; and (4) appellant
“fail[ed] to leave when directed by the special police officer to do so,” are not
“plainly wrong or without evidence to support [them].” 24 From these facts, a
rational trier of fact viewing the evidence in the light most favorable to the
government could have found the essential elements of unlawful entry beyond a
(…continued)
property, or part of such dwelling, building, or other
property, against the will of the lawful occupant or of the
person lawfully in charge thereof, or being therein or
thereon, without lawful authority to remain therein or
thereon shall refuse to quit the same on the demand of the
lawful occupant, or of the person lawfully in charge
thereof, shall be deemed guilty of a misdemeanor[.]
D.C. Code § 22-3302(a)(1) (2012 Repl.).
23
O’Brien, 444 A.2d at 948.
24
D.C. Code § 17-305.
15
reasonable doubt.25
The record does not support appellant’s contention that he complied with
SPO Chapman’s request to leave the property, or his characterization of his
conduct as merely failing to depart “instantaneously upon a request to leave, before
[he] even had a chance to comply.” The record amply supports the trial court’s
contrary finding that “[i]t wasn’t until the police officer arrived that either
[appellant] agreed to leave or was escorted out. But, prior to that, he remained for
10 minutes after he had been told to leave by special police officer Chapman.”
Nor do we agree with appellant’s contention that his eventual brief departure
from the McDonald’s “renders the government’s other evidence moot.” Under the
circumstances presented here, we perceive no error in the trial court’s conclusion
that “the fact that [appellant] was given a break and not immediately arrested at
that time when he could’ve been,” did not “preclude” Officer Thomas from
arresting appellant for his failure to heed SPO Chapman’s request when appellant
re-entered the McDonald’s approximately three to four minutes later, “especially in
light of the very short period of time between when he left and when he returned.”
25
Rivas, 783 A.2d at 134.
16
For the foregoing reasons, the Superior Court’s judgment is
Affirmed.