United States v. Rapone, Anthony

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 16, 1997 Decided December 19, 1997

No. 96-3156

United States of America,

Appellee

v.

Anthony Rapone, Dr. and

Carlitta O. Robinson,

Appellants

Appeal from the United States District Court

for the District of Columbia

(No. 96ms00022-01)

Evelina J. Norwinski, Assistant Federal Public Defender,

argued the cause for appellant Anthony Rapone, with whom

A.J. Kramer, Federal Public Defender, was on the briefs.

Charles B. Wayne, appointed by the court, argued the

cause and filed the briefs for appellant Carlitta O. Robinson.

Vicki S. Marani, Attorney, United States Department of

Justice, argued the cause for appellee, with whom John C.

Keeney, Acting Assistant Attorney General, and Joseph C.

Wyderko, Attorney, were on the brief.

Before: Silberman, Sentelle and Randolph, Circuit

Judges.

Opinion for the court filed by Circuit Judge Sentelle.

Concurring opinion filed by Circuit Judge Silberman, with

whom Circuit Judge Randolph joins.

Sentelle, Circuit Judge: Following a bench trial, appel-

lants Anthony Rapone and Carlitta Robinson, psychologists at

the District of Columbia Department of Corrections ("DOC"),

were found guilty of criminal contempt for violating a court

order that prohibited DOC employees from retaliating against

witnesses in an ongoing sexual harassment lawsuit. They

now challenge their convictions, arguing that: (1) the court

order enjoining "retaliatory action" was not clear and reason-

ably specific; (2) the government failed to present sufficient

evidence that they willfully retaliated against the employee in

question; and (3) the court deprived them of their statutory

right to a jury trial. We reverse appellant Robinson's convic-

tion because we conclude that there was insufficient evidence

to support the conclusion that she retaliated against the

employee-witness. The government did present sufficient

evidence to support a conviction of appellant Rapone, but we

nonetheless vacate his conviction because we conclude that he

was entitled to a trial by jury under 42 U.S.C. s 2000h.

I.

This case arises out of a class action lawsuit against DOC,

in which DOC employees claimed that they were subjected to

sexual harassment and retaliation in violation of Title VII of

the Civil Rights Act of 1964, as amended, 42 U.S.C. s 2000e

et seq., and in violation of the Civil Rights Act of 1871, 42

U.S.C. s 1983. See Neal v. Director, Dist. of Columbia Dep't

of Corrections, Civil Action No. 93-2420, 1995 WL 517244

(D.D.C. Aug. 9, 1995). The district court in the Neal case

issued a preliminary injunction on March 15, 1995, prohibiting

DOC employees from "taking any retaliatory action, or mak-

ing any threats of retaliatory action, against any person who

has been or may be called to testify as a witness in this case,

and who is listed on Exhibit A, attached hereto." One of the

persons listed on Exhibit A was Deborah Bryant, a secretary

in the Psychology Unit at the DOC Occoquan Facility.

Bryant was considered a potential witness in the Neal case

because she had filed administrative complaints of sexual

harassment against Everitt Simms, a staff psychologist in the

unit, in 1994. Simms was eventually transferred to another

facility in response to Bryant's complaint.

Pursuant to the district court's instructions, DOC circulated

the March 15 order to all of its employees, along with an

explanatory memorandum. The memo stated that "[a]nyone

who violates this March 15, 1995 Order ... may be found in

criminal contempt of court and be fined and/or imprisoned.

The court has made it extremely clear that no violations of

the spirit or letter of [the court order] will be acceptable."

United States v. Young, 107 F.3d 903, 905 n.2 (D.C. Cir.

1997). Both Rapone and Robinson signed a document certi-

fying that they had read and understood the court order.

On May 1, 1995, Bryant filed a complaint with DOC against

Rapone and Robinson, claiming that they had retaliated

against her, in violation of the court's order, because she had

filed sexual harassment charges against Simms. DOC,

through the U.S. Office of Personnel Management ("OPM"),

conducted an independent investigation of Bryant's complaint

from May 19 to June 30, 1995. The OPM investigator

concluded that "[w]hile this investigation disclosed hostile and

unprofessional behavior on the part of all three parties in-

volved, the preponderance of evidence reflects no cause and

effect between Ms. Bryant's 1994 complaints against Mr.

Simms, and the dissension that currently exists between

them." The investigator accordingly found "no probable

cause that Ms. Bryant's complaints against Mr. Simms in

1994 triggered retaliatory actions against her by Dr. Rapone

and Ms. Robinson."

At the request of Bryant's counsel, the special master in

the Neal case reviewed the OPM report. Contrary to OPM,

the special master found "probable cause to believe that

Rapone and Robinson did retaliate against Ms. Bryant in

violation of the March 15 injunction by casting aspersions on

Ms. Bryant's performance based on her involvement in the

litigation." Based on the special master's report, the district

court issued an order on December 20, 1995, directing Ra-

pone and Robinson to show cause why they should not be

held in civil and criminal contempt for violating the March 15

order. The court stated that the proceeding would be a non-

jury trial because the court would not "impose a criminal

sentence of more than 180 days incarceration on either par-

ty."

At a subsequent status hearing, counsel for Rapone and

Robinson "move[d] that the Court consider granting my

clients the right to a jury trial in this proceeding." Counsel

argued that a jury trial would "afford greater protection" to

his clients because members of the community would have

"no vested interest" in the case. The court denied their

request, stating that the court had "looked at that question in

connection with [a] recusal motion made in" a related case the

previous day, had "decided to deny it," and would "adhere to

that ruling."

Rapone and Robinson renewed their request for a jury trial

immediately prior to the start of the bench trial. Counsel for

appellants claimed that a jury trial would help relieve the

tension inherent in a situation in which the court serves both

as "the charging officer and the fact-finder." In response,

the government pointed out that "a sentence of up to six

months may be constitutionally imposed without a jury trial"

in criminal contempt cases. The government submitted that

the defendants were "not entitled to a jury trial" because the

court had represented that it would not impose more than a

180-day sentence. The court subsequently denied the motion

for a jury trial "based upon the case law cited by the

government."

At trial, the prosecution presented evidence of incidents of

harassment by Rapone and Robinson that occurred between

December 1994 and May 1995. The defendants, in response,

argued that each one of the alleged incidents was a reason-

able response to Bryant's deficient performance as a secre-

tary, and that only incidents occurring after March 15 (the

date of the injunction) could support criminal contempt con-

victions. Both sides established that there was longstanding

tension between Bryant on the one hand, and Rapone and

Robinson on the other. On October 30, the court found both

defendants guilty of criminal contempt, in violation of 18

U.S.C. s 401(3), and sentenced each of them to fifteen days

incarceration.

Appellants Rapone and Robinson now challenge their con-

victions on three grounds. First, they argue that the district

court's March 15 order was not "clear and reasonably specif-

ic" because it did not clearly prohibit DOC employees from

disciplining those who violate Department rules. Second,

they claim that the evidence, even viewed in the light most

favorable to the government, did not support the conclusion

that Rapone and Robinson willfully retaliated against Bryant.

Third, they argue that they were entitled to a jury trial under

42 U.S.C. s 2000h. We address each of these contentions in

turn.

II.

The district court convicted appellants under 18 U.S.C.

s 401, which empowers courts to "punish by fine or imprison-

ment, at its discretion, such contempt of its authority ... as

... [d]isobedience or resistance to its lawful ... order." 18

U.S.C. s 401(3). To support a conviction under this statute,

the government must prove, beyond a reasonable doubt, that

the defendants willfully violated a "clear and reasonably

specific" order of the court. United States v. NYNEX Corp.,

8 F.3d 52, 54 (D.C. Cir. 1993). Thus, a conviction for criminal

contempt for violation of a court order requires that: (1) the

order must be clear and reasonably specific; (2) the defen-

dant must have violated the order; and (3) the violation must

have been willful. Young, 107 F.3d at 907. Appellants argue

that the government failed to meet its burden of proof on

each of these elements.

A. Clear and Reasonably Specific Order

We decide whether a court order is sufficiently clear and

specific by applying an objective standard, taking into account

both the language of the order and the circumstances sur-

rounding its issuance. Young, 107 F.3d at 907. "Whether an

order is clear enough depends on the context in which it is

issued and the audience to which it is addressed." In re

Levine, 27 F.3d 594, 596 (D.C. Cir. 1994) (quoting In re

Holloway, 995 F.2d 1080, 1082 (D.C. Cir. 1993), cert. denied,

511 U.S. 1030 (1994)), cert. denied, 514 U.S. 1015 (1995).

We note, first of all, that this court has previously conclud-

ed that the district court's March 15, 1995, order was clear

and reasonably specific. In Young, an employee claimed that

the order did not pass muster because she believed that it

applied only to supervisors, and because she claimed not to

understand that her hostile words and behavior would consti-

tute "retaliatory action." 107 F.3d at 908. We concluded

that the language of the order taken in conjunction with the

explanatory memorandum, the document signed by the em-

ployees, and a little common sense, gave the employees

sufficient notice that they could not take retaliatory action

against employees because of involvement in the Neal litiga-

tion. 107 F.3d at 908-10. Moreover, we have also held that

the permanent injunction issued by the district court, which

used language similar to the order currently under review,

satisfied our standards for clarity and specificity. United

States v. Roach, 108 F.3d 1477, 1481 (D.C. Cir. 1997), cert.

denied, 66 U.S.L.W. 3308 (Nov. 17, 1997).

Against this legal backdrop, appellants present a brief

argument that the March 15 order was unsatisfactory. In

their view, the order did not give them sufficient notice that

disciplinary actions, taken in response to an employee's poor

work performance, could be considered a violation of the

court order. Their conclusion seems to be in tension with the

first premise of their argument, which is that "[t]he district

court's Order clearly does not prohibit the Department from

disciplining those who violate Department rules, even though

they may be on the protected witness list." What appellants

are really arguing is that they did not engage in the sort of

conduct that was prohibited by the court's March 15 order,

because "retaliatory action" did not include disciplining em-

ployees who fail to perform their job responsibilities. That

argument goes not to the adequacy of the court order, but to

the conclusion that their conduct constituted a violation of the

order, an issue subsumed in their later argument attacking

the sufficiency of the evidence to support their convictions.

As to the clarity of the order, we again conclude that the

court's March 15, 1995, order clearly and with reasonable

specificity prohibited DOC employees from retaliating against

witnesses in the Neal case.

B. Retaliation

Appellants also claim that there was insufficient evidence to

conclude that they retaliated against Bryant because of her

involvement in the Neal litigation. We review the sufficiency

of the evidence de novo, and we view the facts in the light

most favorable to the government. Young, 107 F.3d at 907.

We apply the "familiar standard for any criminal conviction,"

asking whether "a fair-minded and reasonable trier of fact

could accept the evidence as probative of a defendant's guilt

beyond a reasonable doubt." In re Ellenbogen, 72 F.3d 153,

157 (D.C. Cir. 1995) (internal punctuation and citation omit-

ted).

Reviewing the evidence under this standard, we conclude

that the government presented sufficient evidence to support

a finding that appellant Rapone retaliated against Bryant in

violation of the injunction. We rest our conclusion principally

on the negative performance evaluation submitted by Rapone.

According to Joseph Tisdale, the former deputy warden of

programs at the Occoquan facility, Rapone informed him in

April 1995 that he planned to submit a negative performance

evaluation of Bryant for the year ending March 31, 1995.

Tisdale, who was serving as Rapone's supervisor at the time,

responded that such a submission would violate DOC proce-

dures, because an employee who is to receive an unsatisfacto-

ry rating must receive notice 90 days in advance, must be

informed of the specific deficiencies, and must be given the

chance to correct them. Tisdale instructed Rapone not to

submit an evaluation of Bryant, and told him that he would do

the evaluation himself. Rapone, however, disregarded his

supervisor's instructions and submitted an evaluation that

was highly critical of Bryant. Tisdale directed Rapone to

retract the evaluation, but Rapone refused to comply. Tis-

dale accordingly recommended to the warden that he be

suspended without pay for insubordination.

Rapone's negative depictions of Bryant's work performance

were in considerable tension with the views of Bryant held by

some of the other employees in the unit. Tisdale, for exam-

ple, gave Bryant positive marks on a performance evaluation,

and testified that she was a "very good" secretary. Dale

Schulz, a DOC employee who briefly worked at Occoquan,

similarly testified that Bryant's performance was equal to

that of other secretaries at DOC.

The government presented sufficient evidence that Ra-

pone's hostile behavior toward Bryant was motivated, not by

her work performance, but by her involvement in the sexual

harassment case. Rapone was well aware that Bryant had

made sexual harassment allegations against Simms, and that

Bryant had made similar allegations against another DOC

employee in 1989. After the departure of Simms, Rapone

appeared preoccupied with Bryant's protected status. In

conversations with other employees, he repeatedly made ref-

erence to the fact that she was on a protected list, and

expressed dismay that something couldn't be done about her.

He told his co-workers that she was a bad secretary, and

blamed her poor work performance on her status as a pro-

tected witness. Rapone told Tisdale, for example, that "part

of the reason that she gets away with murder, so to speak, is

because she's on the list." All the while, Rapone and Bryant

were involved in a series of confrontations in the months

leading up to the March 15 order. Bryant testified that she

was singled out for negative treatment--Rapone restricted

her lunch breaks, prevented her from covering her office

window, and removed her computer and locked it in an

unoccupied office. Although these incidents predate the

court's order, they can be construed to shed some light on

Rapone's state of mind in the events after March 15.

We conclude that Rapone's criticism of Bryant's work

performance, when viewed in the light most favorable to the

government, could be construed by a reasonable factfinder as

an example of retaliation. Rapone went out of his way to

disparage Bryant's performance as a secretary, voicing nega-

tive opinions of her work not shared by at least two other

employees in the unit. Rapone also drew attention to her

protected status, and claimed that she thought that she could

get away with anything because of her involvement in the

Neal litigation. Based upon this record, a factfinder could

reasonably conclude that Rapone disparaged Bryant's work

product because of her involvement in the ongoing sexual

harassment case.

We reach a different conclusion as to appellant Robinson.

Unlike Rapone, Robinson did not submit a performance eval-

uation of Bryant. What the government does allege, howev-

er, is that Robinson engaged in a pattern of harassment of

Bryant because of her participation in the Neal litigation.

We conclude that the evidence, even when viewed in the light

most favorable to the government, does not support the

government's allegations.

The government's case against Robinson was based almost

exclusively upon the testimony of Tisdale. He claimed that

Robinson, along with Rapone, "continuously went around

telling people that Ms. Bryant's work performance was unsat-

isfactory." In his view, the situation "got worse" after March

15. When asked to give examples of specific incidents of

retaliation that occurred after March 15, Tisdale responded:

[T]here were numerous occasions [when] they were say-

ing that Ms. Bryant was not available at her work

station. There were numerous times that they allowed

individuals into her office to use her work area, and

things were missing from her work area when she re-

turned. There was [sic] numerous times that statements

were being made around the institution that Ms. Bryant

was not doing her work, Ms. Bryant was all over the

institution. There was [sic] numerous times where I had

to go down to the Psychological Unit where Ms. Robin-

son was shouting at Ms. Bryant, and I had to call the

whole Psychological Unit together to resolve that partic-

ular matter.

We conclude that the evidence against Robinson was insuf-

ficient to support the conclusion that she retaliated against

Bryant for her involvement in the sexual harassment case.

Unlike the case against Rapone, the case against Robinson

was based upon vague descriptions of conduct that occurred

over a several-week time span. Tisdale provided remarkably

few specifics about the events that he alleged were retaliato-

ry--a factfinder would be left wondering who was involved,

on what dates, and under what circumstances. While Tis-

dale's testimony may give a flavor of what transpired, one

cannot determine whether Robinson's statements and actions

were retaliatory without knowing what was said, to whom,

and in what context. For example, telling other employees

that Bryant was not at her work station, and allowing them to

use her work area in her absence, may or may not constitute

retaliatory conduct, depending on the circumstances. A fact-

finder could not determine, based upon this evidence alone,

whether Robinson's behavior was in retaliation for Bryant's

involvement in the Neal litigation. At oral argument, counsel

for the United States adamantly insisted that there was

sufficient evidence to support Robinson's conviction. But

when the panel repeatedly pressed her for specific examples,

she only repeated conclusory generalizations, that appellant

had engaged in retaliatory conduct. We conclude that some-

thing more was required to support a finding that Robinson

was guilty of criminal contempt.

C. Willful Violation

The third requirement for a conviction of criminal contempt

is that the violation of the court order must have been willful.

Young, 107 F.3d at 907. A defendant commits a willful

violation when he acts with deliberate or reckless disregard of

the obligations created by a court order. Id. at 909; Hollo-

way, 995 F.2d at 1082.

The government presented abundant evidence from which

a reasonable factfinder could conclude that Rapone's alleged

violation of the March 15 order was willful. Rapone was well

aware of Bryant's protected status, having received a copy of

the court's order and an explanatory memorandum from

DOC. According to the testimony of his superior, Tisdale,

Rapone continued to harass Bryant after issuance of the court

order, prompting Tisdale to give him both verbal and written

warnings to refrain from retaliatory conduct. Shortly there-

after, Rapone informed Tisdale of his intention to submit a

negative performance evaluation of Bryant. Tisdale told him

that such a submission would violate DOC procedures, and

directed him not to submit any evaluation of Bryant. Ra-

pone, however, defied his supervisor's instructions and sub-

mitted a negative evaluation, prompting Tisdale to cite him

for insubordination. Viewed in the light most favorable to

the government, Rapone's remarkable persistence in submit-

ting a negative evaluation of Bryant, combined with repeated

warnings to obey the court's order, could lead a reasonable

factfinder to conclude that appellant's violation of the March

15 order was willful.

III.

Appellant Rapone also challenges his conviction on the

grounds that he was deprived his statutory right to a jury

trial. The basis for his claim is an obscure statutory provi-

sion, 42 U.S.C. s 2000h, which provides: "In any proceeding

for criminal contempt arising under title II, III, IV, V, VI, or

VII of this Act, the accused, upon demand therefor, shall be

entitled to a trial by jury, which shall conform as near as may

be to the practice in criminal cases." 42 U.S.C. s 2000h.

The plain language of this provision reveals only two require-

ments: the case must arise under titles II through VII of the

Civil Rights Act of 1964, and the accused must "demand" a

trial by jury.

The first requirement is readily satisfied in this case. The

plaintiffs in the Neal litigation alleged, inter alia, that DOC

had engaged in a pattern of sexual harassment in violation of

Title VII of the Civil Rights Act of 1964. See Bonds v.

District of Columbia, 93 F.3d 801, 804 (D.C. Cir. 1996), cert.

denied, 117 S. Ct. 2453 (1997). The district court issued an

order on March 15 to protect participants in the litigation

from retaliation, and Rapone is presently accused of violating

that court order. The criminal contempt proceeding against

Rapone is thus a case "arising under" Title VII of the Civil

Rights Act.

The more difficult question is whether Rapone made a

"demand" for a jury trial within the meaning of the statute.

The statements made by appellants' counsel to the district

court resemble an appeal to the court's discretion more than

an assertion of right. At the status conference, counsel for

Rapone and Robinson asked "that the Court allow us to have

a jury trial as opposed to a non-jury trial." He explained that

"it would afford greater protection to my client[s] if we could

have a jury trial," because members of the community who

have "no vested interest" would decide the case. After

making the point that a jury trial would not be unduly

burdensome, the attorney "move[d] that the Court consider

granting my clients the right to a jury trial in this proceed-

ing." The attorney renewed the "motion for the trial by

jury" at the beginning of the bench trial, and twice referred

to the motion as a "request." He stated: "I think that the

case law is silent on contempt cases where the Court is in fact

the charging officer and the fact-finder, and to the best of my

knowledge, that issue, in terms of that being a basis for

recusal, has not been reached. And another way around it

would be to grant our request for a jury trial." Standing

alone, these statements by appellants' counsel could be

viewed as lacking the sense of entitlement that one would

expect from a "demand" for a jury trial.

Interestingly enough, both the district court and the coun-

sel for the United States understood appellants' statements

not as a request, but as an assertion of constitutional right.

The district court denied appellants' motion at the status

conference, explaining that the court had "looked at that

question in connection with the recusal motion made in the

Roach case yesterday, and decided to deny it in that case, and

I think that I'll adhere to that ruling here as well." The

defendants in the Roach case argued, among other things,

that they had a constitutional right to a jury trial under the

Sixth Amendment. See Roach, 108 F.3d at 1484. After

appellants renewed their motion at the bench trial, counsel

for the United States responded that "it's well settled that

[in] a criminal contempt case, a sentence of up to six months

may be constitutionally imposed without a jury trial." The

government submitted that the defendants were "not entitled

to a jury trial" because the court had already decided not to

impose a sentence exceeding 180 days. The district court

denied appellants' motion "based upon the case law cited by

the government."

Even though appellants' statements, viewed in isolation,

might appear to be something other than a "demand," we find

it significant that both the district court and the attorney for

the United States understood appellants to be arguing that

they were constitutionally entitled to a jury trial. Both

explained that the Constitution's guarantee did not apply in

the present case. As their responses reveal, they believed

that appellants were asserting a legal right to a jury trial,

albeit a right derived from the Constitution, rather than the

statute at hand. Given their uniform interpretation of appel-

lants' repeated requests, we conclude that appellants made an

adequate "demand" for a jury trial within the meaning of 42

U.S.C. s 2000h.

Counsel for the United States does not dispute that the

statutory provision is applicable to this type of case. Indeed,

the government concedes that "appellants could have ob-

tained a jury trial under Section 2000h if they had invoked

that provision in a timely manner, i.e., when it was clear that

the district court had overlooked it." But the government

argues that appellants are precluded from asserting a statuto-

ry right to a jury trial at this juncture because they never

brought the statute to the attention of the district court.

Rapone concedes that he never mentioned the statute when

he raised the issue of a jury trial in the court below.

The issue, then, is whether Rapone surrendered his statu-

tory right to a jury trial because he did not bring the statute

to the district court's attention during his repeated requests

for a jury trial. We hold that he did not. This case is

distinguishable from cases in which a litigant attempts to

raise an entirely new claim or new issue on appeal. In such

cases, "issues and legal theories not asserted at the District

Court level ordinarily will not be heard on appeal." District

of Columbia v. Air Florida, Inc., 750 F.2d 1077, 1084 (D.C.

Cir. 1984). We have made exceptions to this rule only in

"exceptional circumstances." Id. at 1085. In the present

case, Rapone is not attempting to raise the issue of a jury

trial for the first time on appeal. Rather, he simply offers

new legal authority for the position that he repeatedly ad-

vanced before the district court--that he was entitled to have

his case tried before a jury.

We find instructive the Supreme Court's discussion of a

similar problem in Elder v. Holloway, 510 U.S. 510 (1994).

The underlying suit involved a damages action against police

officers under 42 U.S.C. s 1983, for injuries sustained during

the course of an arrest. The district court granted summary

judgment to the defendants on qualified immunity grounds,

concluding that their conduct did not violate clearly estab-

lished statutory or constitutional rights that a reasonable

person would have known. On appeal, the Ninth Circuit

stumbled upon a relevant precedent that the district court

and the parties had overlooked. The Court of Appeals none-

theless refused to consider the precedent because it believed

that the case had been discovered too late. Upon review, the

Supreme Court reversed the Ninth Circuit for turning a blind

eye to pertinent legal authority. As the Court explained,

when an appellate court reviews a question of law de novo,

the court must use its " 'full knowledge of its own [and other

relevant] precedents.' " Id. at 516 (quoting Davis v. Scherer,

468 U.S. 183, 192 n.9 (1984)). Ignoring relevant precedents

discovered on appeal could "occasion appellate affirmation of

incorrect legal results" and could result in a windfall to a

party "because of shortages in counsel's or the court's legal

research or briefing." Id. at 515 & n.3. The Court concluded

that appellate review of qualified immunity dispositions must

be conducted "in light of all relevant precedents, not simply

those cited to, or discovered by, the district court." Id. at

512.

While not squarely on point, Elder is instructive in the case

at bar. As in Elder, both the district court and the parties

overlooked pertinent legal authority that would have shed

light on the issue. Whether Rapone was entitled to a jury

trial is a question of law that we review de novo, and we do

not think it appropriate to ignore relevant legal authority

simply because it was not considered in the court below. If it

would be improper to absolve civil defendants "because of

shortages in counsel's or the court's legal research or brief-

ing," id. at 515, then surely we should not affirm a criminal

conviction that suffers from the same sort of deficiency.

Contrary to the government's interpretation, the statute

does not require an explicit invocation of the provision before

the district court. What it does require is a "demand" for a

jury trial, and we have concluded that appellants' repeated

requests for a trial by jury amounted to such a demand,

especially considering that both the district court and the

government construed the requests as an assertion of right.

We conclude that Rapone's otherwise meritorious argument

was not waived by his failure to provide a citation to the

proper legal authority.

IV.

In conclusion, we reverse appellant Robinson's conviction

and remand her case to the district court for entry of a

judgment of acquittal because the government failed to pres-

ent sufficient evidence that she committed an act of retalia-

tion in violation of the court's March 15 order. We vacate

appellant Rapone's conviction on the grounds that he had a

statutory right to jury trial under 42 U.S.C. s 2000h.

Silberman, Circuit Judge, concurring, with whom

Randolph, Circuit Judge, joins: I write separately to empha-

size the point that in reviewing convictions for sufficiency of

the evidence we cannot look only to the evidence supporting

the government. Although the government is entitled to any

reasonable inferences, we must consider all of the evidence

including that favorable to the defendant. See Jackson v.

Virginia, 443 U.S. 307, 319 (1979) (noting that "upon judicial

review all of the evidence is to be considered in the light most

favorable to the prosecution"); United States v. Grey Bear,

828 F.2d 1286, 1292 (8th Cir. 1987) (reviewing "the evidence

taken as a whole, including that offered by the defendant");

United States v. Beck, 615 F.2d 441, 448 (7th Cir. 1980)

(stating that "[t]he standard is not so strict that the defen-

dant's evidence must be disregarded").

In that vein, it is clear, as the OPM investigator concluded,

that there was long-standing acrimony between Rapone, Rob-

inson, and Bryant which pre-dated both Bryant's complaints

against Simms and her involvement in the Neal litigation.

From the time of her arrival in the Psychology Unit, Rapone

and Robinson complained in memos about Bryant's alleged

extended absences from her desk, failure to answer the

telephone, excessive socialization with prisoners, and use of

an audio cassette recorder to tape a conversation with a

superior. The testimony of co-workers, such as Dr. Caitilin

Gordon and Abdolmozafar Nahidi, further supports the view

that relations between Rapone, Robinson, and Bryant were

hostile for reasons independent of Bryant's sexual harass-

ment complaints.

Rapone (and Robinson), moreover, were hardly alone in

criticizing Bryant's work performance. Gordon observed that

Bryant came into work late, spent a lot of time away from her

desk, interacted socially with the inmates, and was generally

unproductive. Nahidi noted that Bryant would refuse to

answer the telephones when she was typing. And Halil

Alturk asserted that Bryant would spend an inordinate

amount of time during the day outside of the office. The

OPM investigator concluded that "there have been serious

deficiencies in Ms. Bryant's work performance" and that "no

linkage" existed between the retaliatory incidents alleged by

Bryant and her role in Simms' removal from the unit. It is

also noteworthy that Rapone did not single Bryant out by

giving her a negative job evaluation in 1995. At the same

time Rapone turned in Bryant's evaluation, he submitted a

negative evaluation of Nahidi, a psychologist with no involve-

ment in the Neal litigation, also against Tisdale's orders.

The issue before us is close. The government conceded at

oral argument that it had the burden of showing that Rapone

submitted the unfavorable evaluation of Bryant because of

her sexual harassment complaints. Still, although there is

considerable evidence supporting the defense, I believe a

rational fact-finder could be persuaded by the countervailing

evidence described in the majority opinion. I therefore con-

cur.