U.S. v. Rapone

• Decision Date: 19 December 1997
• Docket Number: No. 96-3156,96-3156
• Citation: 131 F.3d 188,327 U.S.App. D.C. 338
• Parties: 72 Empl. Prac. Dec. P 45,136, 327 U.S.App.D.C. 338 UNITED STATES of America, Appellee, v. Anthony RAPONE, Dr. and Carlitta O. Robinson, Appellants.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 188

131 F.3d 188

72 Empl. Prac. Dec. P 45,136, 327 U.S.App.D.C. 338

UNITED STATES of America, Appellee, v. Anthony RAPONE, Dr. and Carlitta O. Robinson, Appellants.

No. 96-3156.

United States Court of Appeals, District of Columbia Circuit.

Argued Oct. 16, 1997.

Decided Dec. 19, 1997.

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, appellants 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 reasonably 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 conviction 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. § 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. § 2000e et seq., and in violation of the Civil Rights Act of 1871, 42 U.S.C. § 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 making 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 certifying 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 involved, 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 Rapone 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 nonjury trial because the court would not "impose a criminal sentence of more than 180 days incarceration on either party."

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 reasonable response to Bryant's deficient performance as a secretary, and that only incidents occurring after March 15 (the date of the injunction) could support criminal contempt convictions. 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. § 401(3), and sentenced each of them to fifteen days incarceration.

Appellants Rapone and Robinson now challenge their convictions on three grounds. First, they argue that the district court's March 15 order was not "clear and reasonably specific" 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. § 2000h. We address each of these contentions in turn.

II.

The district court convicted appellants under 18 U.S.C. § 401, which empowers courts to "punish by fine or imprisonment, at its discretion, such contempt of its authority ... as ... [d]isobedience or resistance to its lawful ... order." 18 U.S.C. § 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 defendant 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 surrounding 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, 114 S.Ct. 1537, 128 L.Ed.2d 190 (1994)), cert. denied, 514 U.S. 1015, 115 S.Ct. 1356, 131 L.Ed.2d 214 (1995).

We note, first of all, that this court has previously concluded 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 sh...