Rahman v. United States

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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The decision in the case was originally issued as an unpublished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.