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.