United States v. Rapone, Anthony

SILBERMAN, Circuit Judge,

concurring,

with whom RANDOLPH, Circuit Judge, joins:

I write separately to emphasize 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, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (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 defendant’s evidence must be disregarded”).

In that vein, it is clear, as the OPM investigator concluded, that there was long-standing acrimony between Rapone, Robinson, 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 *198Robinson 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 coworkers, 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 harassment 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 involvement 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 concur.