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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 * The decision in the case was originally issued as an unpublished 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 Act1 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 reentered 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 WalMart 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.