The Court of Appeals recently in Rahman v. U.S., addressed the legal elements of the unlawful entry statute as well as addressing the appellant’s discovery requests pursuant to the Jencks act.

Factually, appellant was told to leave the premises at a Mcdonald’s location by a special police officer (“SPO”) as it appeared that he was loitering or panhandling at the location.

Appellant initially refused to leave but eventually left the premises and returned few minutes later at which time he was arrested for unlawful entry by a police officer.

On appeal, the appellant essentially argued that he could not have been arrested for the unlawful entry as he had left the premises initially and moreover the internal incident document issued by the SPO should have been made available to him pursuant to the Jencks Act.

Specifically, that he had left the McDonald’s after being instructed to leave, was not barred from the restaurant, and reentered only on good-faith belief that he could return to ask for the Officer’s information.

The Jencks Act provides for disclosure of written material in possession of the government to the defense counsel.  The Act serves the concurrent purposes of aiding the search for truth by providing a written statement for impeachment of a witness who has given a prior inconsistent statement to the government all while also regulating access by the defense to materials and evidence within the government’s possession that may be exculpatory.

The key requirement is that the material MUST be in the government’s possession and control.

That is, if a statement is not in the possession of the prosecutorial arm of the government, nor in the possession of the government’s agent or actors at all – then there is no duty to disclose and the government is not obliged to produce it.

Here, the SPO’s possession of the private internal McDonald’s incident report did not constitute possession by the government for purposes of the Jencks Act.

The actor must perform a governmental function; and or through performing a proprietary function be sufficiently involved in the prosecution or investigation of a criminal offense to qualify the document as disclosable under the Jencks Act.

In sum, the Court concluded SPO’s report was an internal McDonald’s corporate document not in the government’s possession for purposes of the Jencks Act.

On the unlawful entry conviction, the court expounded that there are two varieties of unlawful entry:

• The first variety is entry without authority and the
• Second variety is remaining without authority.

Moreover, it was undisputed that:

• The McDonald’s was private property;
• SPO Chapman was lawfully in charge of the property and had the authority to ask visitors to leave;
• SPO Chapman stated clearly and repeated several times her request for appellant to leave the property; and
• Appellant failed to leave when directed by the special police officer to do so.

The Court found that the record has ample evidence that it wasn’t until the police officer arrived that either the 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 the special police officer and the remaining in the premises after being told to leave violates the unlawful entry statute.

It appears that the defense counsel could have easily obtained the SPO’s internal report via subpoena rather than relying unsuccessfully on the Jencks Act at trial.

Refer to our Washington DC Criminal Lawyer page for more information on this and other criminal topics.