ORAL ARGUMENT NOT YET SCHEDULED



UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

_________________________________________________________________


No. 96-3107

_________________________________________________________________


UNITED STATES OF AMERICA, Plaintiff-Appellee,


v.


xxxxxxx xxxxxxx, Defendant-Appellant.


_________________________________________________________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA


________________________________________________________________


BRIEF FOR APPELLANT


_________________________________________________________________





                              A.J. Kramer

                              Federal Public Defender

                              Sandra G. Roland

                              Assistant Federal Public Defender

Counsel for Defendant-Appellant

625 Indiana Avenue, N.W., Suite 550

                              Washington, D.C. 20004

                              (202) 208-7500

 



District Court

Misc. No. 96-21 (RCL)


CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES


Pursuant to D.C. Circuit Rule 28(a)(1), Defendant-Appellant, xxxxxxx xxxxxxx, hereby states as follows:

A.Parties and Amici:

The parties below were defendant xxxxxxx xxxxxxx and the United States of America. The parties to this appeal are defendant-appellant xxxxxxx xxxxxxx and plaintiff-appellee, the United States of America. There are no intervenors or amici.

B.Rulings Under Review:

This is an appeal from the judgment of the district court (the Honorable Royce C. Lamberth), dated August 23, 1996, adjudging appellant xxxxxxx guilty after a bench trial on the charge of criminal contempt in violation of 18 U.S.C. § 401(3). In this appeal, appellant seeks review of the district court's admission of evidence on August 22, 1996 and the district court's denial of appellant's motion for judgment of acquittal on August 22, 1996.

C.Related Cases:

There are no related cases. This case has not previously been before this Court.


TABLE OF CONTENTS



TABLE OF AUTHORITIES ii

 

STATUTES AND RULES 1

 

JURISDICTION 1


ISSUES PRESENTED FOR REVIEW 1


STATEMENT OF THE CASE 2

 

A.Nature of the Case, Course of Proceedings, and

Disposition in the Court Below 2


B.Statement of Facts3

i.Introduction3

ii.The Government's Evidence4

a.The March 15, 1995 Order4

b.The Alleged Violations of the March 15,

1995 Order7

 

c.The Three Incidents Occurring Prior to the Court's March 15, 1995 Order12

iii.The Defense Case13

iv.The Judge's Verdict15

SUMMARY OF ARGUMENT 16

ARGUMENT

I.THE EVIDENCE WAS INSUFFICIENT TO SUPPORT A FINDING OF CRIMINAL CONTEMPT FOR VIOLATION OF THE JUDGE'S ORDER WHERE THE ORDER WAS NOT CLEAR AND REASONABLY

SPECIFIC17

 

A.Standard of Review17

 

B.The Evidence Was Insufficient to Allow a "Fair-Minded and Reasonable Trier of Fact" To Conclude Beyond a Reasonable Doubt that the March 15, 1995 Order Was Clear and Reasonably

Specific18


II.DUE PROCESS AND FED.R.CRIM.P. 42(b) WERE VIOLATED WHERE THE SHOW CAUSE ORDER FAILED TO PROVIDE NOTICE TO APPELLANT OF ALL OF THE "ESSENTIAL FACTS

CONSTITUTING THE CRIMINAL CONTEMPT CHARGED."24

 

A.Standard of Review24

 

B.The Criminal Contempt Conviction Violated Due Process and Fed.R.Crim.P. Because it was Based In Part on a Factual Allegation About Which

Appellant Had No Notice25


CONCLUSION 28


CERTIFICATE OF LENGTH 30


CERTIFICATE OF SERVICE 30


TABLE OF AUTHORITIES


CASES


 Alberti v. Cruise, 383 F.2d 268 (4th Cir. 1967)21


 Armstrong v. Executive Office of President,

1 F.3d 1274 (D.C. Cir. 1993)28


 Ben David v. Travisono, 495 F.2d 562 (1st Cir. 1974)21


 Bonds v. District of Columbia, 93 F.2d 801 (D.C. Cir. 1996)

3, 9, 12, 13


 Burks v. United States, 437 U.S. 1 (1978)17


 Calvin Klein Cosmetics v. Parfums de Coeur, Ltd.,

824 F.2d 665 (8th Cir. 1987)18, 21


 Clark v. Coye, 60 F.3d 600 (9th Cir. 1995)22


*Common Cause v. Nuclear Regulatory Commission,

674 F.2d 921 (D.C. Cir. 1982)20, 21, 23


 Cooper v. Texaco, Inc., 961 F.2d 71 (5th Cir. 1992)18, 19


 D. Patrick, Inc. v. Ford Motor Co.,

8 F.3d 455 (7th Cir. 1993)19


 H.K. Porter Co., Inc. v. National Friction Products,

568 F.2d 24 (7th Cir. 1977)20


 Hess v. New Jersey Transit Rail Operations, Inc.,

846 F.2d 114 (2d Cir. 1988)18, 21


 In re Holloway, 995 F.2d 1080 (D.C. Cir. 1993)

cert. denied, 114 S. Ct. 1537 (1994)18, 22


 Inmates of Allegheny County Jail v. Wecht,

754 F.2d 120 (3d Cir. 1985)20


 International Longshoreman's Assn'n, Local 1291 v.

Philadelphia Marine Trade Ass'n, 389 U.S. 64 (1967)20


__________________________

* Authorities principally relied upon are marked with an asterisk.



 Jackson v. Virginia, 443 U.S. 307 (1979)18


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

cert. denied, 115 S. Ct. 1356 (1995)18, 22


 Matter of Betts, 927 F.2d 983 (11th Cir. 1991)19


*N.A. Sales Company, Inc. v. Chapman Industries Corp.,

736 F.2d 854 (2d Cir. 1984)27


*North American Coal Corp. v. United Mine Workers of America,

512 F.2d 238 (6th Cir. 1975)26


 In re Oliver, 333 U.S. 257 (1948)25


 Paroline v. Unisys Corp., 879 F.2d 100 (4th Cir. 1989),

aff'd in pertinent part,

900 F.2d 27 (4th Cir. 1990 (en banc)24


 Project B.A.S.I.C. v. Kemp, 947 F.2d 11 (1st Cir. 1991)18


*Richmond Black Police Off'rs v. City of Richmond, VA.,

548 F.2d 123 (4th Cir. 1977)26, 27


 Robin Woods Inc. v. Robin Woods, 28 F.3d 396 (3d Cir. 1994)19


 Sauers v. Salt Lake County, 1 F.3d 1122 (10th Cir. 1993)24


 SEC v. Savoy Industries, Inc., 665 F.2d 1310 (D.C. Cir. 1981)21


 Swift and Co. v. United States, 196 U.S. 375 (1905)20


 Taylor v. Hayes, 418 U.S. 488 (1978)25


 Traub v. United States, 232 F.2d 43 (D.C. Cir. 1955)18


 United States v. Armstrong, 781 F.2d 700 (9th Cir. 1986)18


 United States v. Holtzman, 762 F.2d 720 (9th Cir. 1985)19


 United States v. ITT Continental Baking Co.,

420 U.S. 223 (1975)24


 United States v. Johnson, 952 F.2d 1407 (D.C. Cir. 1992)17


__________________________

* Authorities principally relied upon are marked with an asterisk.


 United States v. Lee, 720 F.2d 1049 (9th Cir. 1983)24, 26, 27


*United States v. NYNEX Corporation,

8 F.3d 52 (D.C. Cir. 1993)18, 19


*United States v. Robinson, 449 F.2d 925 (9th Cir. 1971)27


 United States v. Turner, 812 F.2d 1552 (11th Cir. 1987)22


 United States v. United Mine Workers of America,

330 U.S. 258 (1947)25


 United States v. Vitasafe Corp., 345 F.2d 864 (3d Cir.),

cert. denied, 382 U.S. 918 (1965)21



STATUTES AND RULES


*Fed. R. Civ. P. 65(d)19


*Fed. R. Crim. P. 42(b)2, 17, 24, 25, 26


 18 U.S.C. § 4011, 2, 18, 19


 42 U.S.C. 2000e(b)24


__________________________

* Authorities principally relied upon are marked with an asterisk.



UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

_______________________________________________________


No. 96-3107


_________________________________________________________


UNITED STATES OF AMERICA, Plaintiff-Appellee,


v.


xxxxxxx xxxxxxx, Defendant-Appellant.


_____________________________________________


APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

_____________________________________________


BRIEF FOR DEFENDANT-APPELLANT

xxxxxxx xxxxxxx

_____________________________________________


STATUTES AND RULES


Pursuant to Rule 28(f), Federal Rules of Appellate Procedure and Circuit Rule 28(a)(5), the pertinent statutes and rules are set forth in the Addendum.

JURISDICTION

The district court had jurisdiction under 18 U.S.C. §§ 401 and 3231. A timely notice of appeal having been filed, this Court has jurisdiction under 28 U.S.C. § 1291.

ISSUES PRESENTED FOR REVIEW

I.Whether there was insufficient evidence from which the fact finder could conclude beyond a reasonable doubt that the judge's order was clear and reasonably specific where the order merely enjoined the Department of Corrections and its agents and employees from "retaliatory action," but did not define in any way "retaliation."


II.Whether appellant's criminal contempt conviction which was based in part on factual allegations that were not stated in the judge's show cause order violated due process and Fed.R.Crim.P. 42(b), which require that the contemnor receive notice stating "the essential facts constituting the criminal contempt charged."

STATEMENT OF THE CASE

A.Nature of the Case, Course of Proceedings, and

Disposition in the Court Below

On December 20, 1995, the Special Master appointed by the district court (the Honorable Royce C. Lamberth) filed his Recommendation And Report Of Special Master Regarding Complaint Of Officer Yvonne Brown in the case of Bessye Neal, et al. v. Margaret Moore, Acting Director, D.C. Department of Corrections, et al., No. 93cv2420. A. at 12. Based on the Special Master's report and recommendation, that same day the judge issued an order directing corrections officer xxxxxxx xxxxxxx to show cause why she should not be held in civil or criminal contempt for violating its March 15, 1995 preliminary injunction in the Bessye Neal case. A. at 11-A.

Judge Lamberth, on his own motion, determined that he would not impose a sentence of more than 180 days imprisonment if he found xxxxxxx xxxxxxx guilty of criminal contempt, thereby obviating the requirement of a trial by jury. A. at 11-B. Appellant's bench trial commenced on August 22, 1996. Judge Lamberth entered a verdict of guilty on the charge of criminal contempt the next day, August 23, 1996, and immediately sentenced Ms. xxxxxxx to the maximum term of imprisonment allowable, 180 days.

Ms. xxxxxxx filed a notice of appeal. Footnote

B.Statement of Facts

i.Introduction

The charge against Ms. xxxxxxx arose out of the civil case, Bessye Neal, et al. v. Margaret Moore, Acting Director, D.C. Department of Corrections, et al., No. 93cv2420 (RCL), in which Department of Corrections employees alleged sexual harassment. Footnote On March 15, 1995, the judge issued a preliminary injunction in that case which provided, inter alia:

Defendants, together with all of their agents and employees, are enjoined 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.

A. at 1.

Corrections Officer Yvonne Brown had been called to testify as a witness in the Bessye Neal case on March 3, 1995, and was listed on Exhibit A. Tr. 8/22(am) at 20, 23; A. at 5. Footnote Ms. Brown had testified that Lieutenant xxxxxxx xxxxxxx, a supervisor in the unit in which she worked, had sexually harassed her. Tr. 8/22(am) at 20-21. Ms. Brown subsequently alleged that appellant xxxxxxx xxxxxxx, a co-worker, violated the judge's March 15, 1995 order by retaliating against her because of her testimony in the Bessye Neal case.

The Office of Personnel Management ("OPM") investigated Ms. Brown's allegations. A Special Master appointed by Judge Lamberth reviewed the report of OPM's investigation and found probable cause to believe that Ms. xxxxxxx engaged in retaliation. Footnote Based on the Special Master's recommendation, the judge issued an order directing Ms. xxxxxxx to

show cause why she should not be held in civil and criminal contempt of court for violating th[e] court's order dated March 15, 1995, enjoining retaliation by defendants, their agents and employees, against Ms. [Yvonne] Brown.

A. at 11-A. The judge appointed the United States to prosecute the case against Ms. xxxxxxx. After hearing evidence, Judge Lamberth convicted Ms. xxxxxxx of criminal contempt for violating the March 15, 1995 injunction.

ii.The Government's Evidence

a.The March 15, 1995 Order

The judge's March 15, 1995 order required the defendant in the Bessye Neal case, the Department of Corrections, to distribute "to each person then employed by the Department" a copy of the order and a statement that any violation of the injunction "may subject the violator to sanctions for criminal contempt." A. at 1. On March 17, 1995, Ms. xxxxxxx signed a document certifying that she had received and read the March 15, 1995 order and that she understood that she was bound by it. Tr. 8/22(am) at 3; A. at 11.

Government witness Officer Larry Wellington testified that the employees received the March 15, 1995 order at roll call, were told en mass that they had to abide by the order and to certify that they had received a copy of it. He and his co-workers, however, did not fully understand what the order required of them. Tr. 8/22(pm) at 40-41. In his capacity as the union's chief shop steward, Officer Wellington had a discussion with Ms. xxxxxxx and others about the order in which they tried "to determine ourselves what was meant by retaliation because we didn't have an understanding of what retaliation was." Tr. 8/22(pm) at 39-40. Wellington testified that

 

the order was never explained to us in detail on what it meant. We had to try to get our own interpretation to get an understanding what it meant.

 

* * *

 

. . . It was just handed to us. It wasn't explained to us.

 

* * *

 

. . . We talked about the order when we received it because they didn't give us a clarity of it. They didn't go into detail on what we were to do or what not to do. We read and we wanted to get our own understanding. They never explained it to us. Yes, we talked about it. And I said, we're not supposed to violate the order, but what we wanted to understand for each thing. What was sexual harassment? What was retaliation? That order [defining sexual harassment and retaliation] didn't come out until August the 9th or later that year on what sexual harassment was. What was defined and explained. And for retaliation -- Footnote

8/22(pm) at 40, 41, 43.

Judge Lamberth's questioned Officer Wellington about whether he was aware of Title VII's prohibition against retaliation against one who has opposed sexual harassment. Officer Wellington testified that he was not aware of Title VII's provisions and that the Department of Corrections had not provided any training on retaliation. Tr. 8/22(pm) at 43-44. Footnote

b.The Alleged Violations of the March 15, 1995 Order

The government presented evidence of five incidents occurring after the judge's March 15, 1995 order, that the government alleged constituted retaliation toward Yvonne Brown for her testimony in the Bessye Neal case. Yvonne Brown and xxxxxxx xxxxxxx were assigned to Lorton's Transport Unit, which transports inmates to and from court and any other appointments. Tr. 8/22(am) at 13. Ms. Brown worked in the dispatch office, which assigned work and equipment each day to the other officers in the unit. Tr. 8/22(am) at 15. Another officer, Officer Hill, worked alongside Ms. Brown in the office. Tr. 8/22(am) at 18. Ms. Brown and Ms. xxxxxxx worked on different shifts and, generally, their only contact was at the end of Ms. xxxxxxx's shift when she returned her equipment to the dispatch office. Tr. 8/22(am) at 17-18, 37-38, 57; 8/22(pm) at 75. Virtually all of the incidents alleged by Ms. Brown occurred at the half-door of the dispatch office.

According to Ms. Brown, her relationship with Ms. xxxxxxx had been cordial until after she testified in the Bessye Neal case on March 3, 1995. Tr. 8/22(am) at 19-20. Ms. Brown testified that the only time that she and Ms. xxxxxxx spoke directly about her allegations in the Bessye Neal case was when Ms. xxxxxxx told her that another officer also was harassed by Lieutenant xxxxxxx and could "relate to" the things that Ms. Brown had described in the Bessye Neal case. Tr. 8/22(am) at 50.

Ms. Brown testified that on March 22, 1995, about three weeks after her testimony in the Bessye Neal case and about one week after the court's order, Ms. xxxxxxx came to the door of the dispatch office and said to Ms. Brown, "Don't let me catch you smoking in here." Footnote Tr. 8/22(am) at 28-29. Also on that date, Ms. xxxxxxx allegedly said to Ms. Brown, "Get off your ass and take this equipment before I slap you." Tr. 8/22(am) at 31. No other witness corroborated these allegations.

Ms. Brown testified that one month later, on April 21, 1995, Ms. xxxxxxx saw her smoking in the dispatch office, and said "You better get the hell out of here with that cigarette." Tr. 8/22(am) at 29. Ms. Brown responded by observing that Ms. xxxxxxx's shift had ended and she was no longer on duty. Id. According to Ms. Brown, Ms. xxxxxxx responded by "us[ing] a foul mouth," then made a telephone call. Tr. 8/22(am) at 30. After her telephone call, she allegedly said to Ms. Brown, "If you have something to say, say it now so I can slap you." Tr. 8/22(am) at 29-30. No other witness corroborated this allegation.

Ms. Brown and her co-worker in the dispatch office, Officer Hill, Footnote testified that on May 8, 1995, Ms. xxxxxxx stood outside the half-door of the dispatch office showing photographs of her daughter to Officer Hill. Tr. 8/22(am) at 31-32. Officer Hill offered the photographs to Ms. Brown. Ms. Brown said that she did not want to see Ms. xxxxxxx's photographs. Ms. xxxxxxx retorted, "That bitch is not looking at my pictures." Tr. 8/22(am) at 32. Ms. Brown reiterated that she did not want to see Ms. xxxxxxx's pictures. Ms. xxxxxxx then called Ms. Brown a "bitch" and said she was going to "kick [Ms. Brown's] ass" and "blow her away." Tr. 8/22(am) at 32, 73. Ms. Brown returned the profanity, said, "Ms. xxxxxxx, I'm tired," and opened the door of the half-door of the dispatch office. Tr. 8/22(am) at 32, 62. The two women stood cursing at each other. Tr. 8/22(pm) at 60. Ms. xxxxxxx called for the supervisor, Lieutenant Goodall. Tr. 8/22(am) at 32; 8/22(pm) at 56. Lieutenant Goodall instructed Ms. Brown to return to the dispatch office and instructed Sergeant Curtis to escort Ms. xxxxxxx outside. Tr. 8/22(am) at 32; 8/22(pm) at 57. Lieutenant Goodall testified that she heard Ms. xxxxxxx say as she was leaving "something to the effect" of "I don't care about the suit. She acts like she can't be touched." Tr. 8/22(pm) at 57. No other witness corroborated this allegation. Footnote

Later that same day, Officer Hill approached Ms. xxxxxxx in the parking lot and told her that she could get in trouble for saying such things. Tr. 8/22(am) at 74. Ms. xxxxxxx responded that "everyone was trying to blame her, that she hadn't done anything." Tr. 8/22(am) at 75.

Ms. Brown and another employee of the Transport Unit testified that on May 16, 1995, Ms. xxxxxxx committed a safety violation when she returned her ammunition: When Ms. Brown held out her hands to receive the bullets, Ms. xxxxxxx "threw the rounds" at Ms. Brown's hand, and "some of the rounds fell on the floor." Tr. 8/22(am) at 32-33, 64; 8/22(pm) at 5. Ms. xxxxxxx laughed and said, "That's your problem," and then walked away, continuing her conversation with a third party. Tr. 8/22(am) at 33, 65; 8/22(pm) at 5.

Finally, Officer Linda Diane Wyatt Hayes testified about an incident that allegedly occurred in July, 1995. The defense objected to this testimony because it had never received notice that this alleged incident was part of the contempt charge, and neither the OPM nor Special Master's report made mention of the alleged incident (Tr. 8/22(pm) at 14):

DEFENSE COUNSEL:. . . The issue is whether or not my client has reasonable notice of what she is being alleged to have done to violate the order. She has to be given an opportunity to know what the specifications of her contempt are in order to defend herself properly against the allegation.

The prosecutor contended that the government was entitled to prove any conduct which it believed violated the court's order and that, in any event, the defense had had in its possession for one week prior to trial Jencks Act materials which included an FBI 302 report of an interview conducted on July 15, 1996 with Ms. Hayes (Tr. 8/22(pm) at 13-14):

PROSECUTOR:It is my impression that whatever OPM did, in no way restricts the government from the breadth and scope of its proof of violation of the court's order here. Just because OPM didn't find this, doesn't mean that we found it. We can't use it. That would be our position.

 

***

 

. . . [T]his woman's 302 outlines this and has been in your possession for at least a week.

See 7/23 at 7; A. at 152. The judge overruled the objection and admitted the testimony. Tr. 8/22(pm) at 14.

Ms. Hayes testified that in July, 1995, she saw Ms. xxxxxxx "stick her foot out and try to trip" Ms. Brown. Tr. 8/22(pm) at 16. Ms. Hayes pushed Ms. Brown so that she would not be tripped. Id. The government had not questioned Ms. Brown about this alleged incident, and no other witness corroborated this allegation.

c.The Three Incidents Occurring Prior to the Court's March 15, 1995 Order

The government introduced evidence of three alleged incidents that occurred subsequent to Yvonne Brown's March 3, 1995 testimony in the Bessye Neal case, but prior to the judge's March 15, 1995, order. Evidence of these incidents was admitted for the sole purpose of demonstrating that the post-March 15, 1995 incidents were caused by Ms. Brown's legally protected activity in the Bessye Neal case. Tr. 8/22(am) at 6. See Tr. 7/23 at 4-6. Ms. Brown testified in the Bessye Neal case on Friday, March 3, 1995. The Washington Post reported the substance of her testimony on March 4, 1995. A. at 49.

Ms. Brown testified that on the next work day after her testimony, March 6, 1995, Ms. xxxxxxx said, while standing at the door of the dispatch office, "You have to be careful what you say around her because mother fuckers will have you in court telling shit like they did xxxxxxx." Tr. 8/22(am) at 21, 26. No other witness corroborated this allegation.

Ms. Brown testified that on March 9, 1995, Ms. xxxxxxx said in Ms. Brown's presence to a third party, "I'm not going to talk in here, because this telling bitch that got xxxxxxx in trouble is in here." Tr. 8/22(am) at 27. Footnote

Ms. Brown testified that on March 14, 1995, Ms. xxxxxxx said to her, "Don't let me catch you smoking in here, because I want to get paid." Id. Footnote Ms. Brown responded, "If you work continuously every two weeks you would be paid biweekly like everybody else that works here." Ms. xxxxxxx said, "That's not what I mean, you know what I mean. And anyway, I don't believe xxxxxxx said anything to [Officer Linda Diane Wyatt Hayes] because she is a homely, ugly bitch." Tr. 8/22(am) at 28.

Finally, the government introduced evidence of a comment made by Ms. xxxxxxx to a labor union representative as bearing on whether Ms. xxxxxxx's conduct toward Mr. Brown was related to Brown's testimony in the Bessye Neal case: In April, 1995, Ms. xxxxxxx said to the union representative, "Someone needs to talk to Brown because that's messed up what she's doing to xxxxxxx." Tr. 8/22(pm) at 33.

iii.The Defense Case

Ms. xxxxxxx testified on her own behalf. She testified that the Department's employees were provided copies of the court's March 15, 1995 order, but the order was never explained. Tr. 8/23(am) at 24. She believed that she was "not in a position to retaliate" because she was "not in the supervisor position and [could not] move nobody from their post, days off and different things like that." Tr. 8/23(am) at 26. She did not believe that voicing her opinion constituted retaliation: "No, not voicing my opinion because everybody around there voiced their opinion." Tr. 8/23(am) at 25. Subsequent orders helped clarify the definition of retaliation: "[W]hen I read the other orders stating it can be abusive like retaliating against other officers like saying different things, I get a clear picture of it, but when I first got the order, no, I thought it was like me -- I'm not a supervisor. This don't apply to me." 8/23(am) at 26.

In addition, Officer Raymond Ballard testified that when the court's March 15, 1995 order was distributed at roll call, it was explained that those persons on the "witness protection program" could not be retaliated against, meaning that "you couldn't move them off any shift. You couldn't change their job assignment. You couldn't change their days off not unless you went through the court to move them for any reason." Tr. 8/23(am) at 77-78. A few months later, the employees began receiving training from the Department of Corrections on sexual harassment and retaliation. Tr. 8/23(am) at 78. Before Officer Ballard attended the class he did not fully understand what conduct constituted retaliation: "Before that, I thought it meant -- I didn't think it applied to me as retaliating against an officer or anybody on my rank and file. I thought it meant supervisors couldn't move them or anything because they would look at it as a form of retaliation." Tr. 8/23(am) at 79. Ballard testified that ". . . I didn't have knowledge of it me and someone else got into an argument, it was a form of retaliation." Tr. 8/23(am) at 80.

Ms. xxxxxxx denied all of the government's allegations with respect to conduct toward Yvonne Brown. Tr. 8/23(am) at 20, 27-28, 30, 31, 36, 37, 41, 51. She testified that Ms. Brown solicited her (false) testimony against Lieutenant xxxxxxx in the Bessye Neal case and that her refusal to make false allegations against xxxxxxx was a source of conflict between the two women. Tr. 8/23(am) at 22-23, 29-30. She testified that she had been terminated from her employment with the Department of Corrections. Tr. 8/23(am) at 3.

iv.The Judge's Verdict

Judge Lamberth found:

beyond a reasonable doubt that the defendant is guilty of criminal contempt of this court because I find that the defendant did, in fact, retaliate against Officer Brown and that this retaliation was prohibited by my order of March 15, 1995.

 

* * *

 

I find that my order was clear and reasonably specific and I reject the defendant's argument that co-workers wouldn't know that they couldn't retaliate; that it just applied to supervisors.

 

I find that any common sense understanding would lead any person to know that you cannot treat a person differently because of their testimony here in court.

 

I find beyond a reasonable doubt that the defendant did, in fact, treat Officer Brown differently as a result of her testimony here in court.

* * *

 

I also find beyond a reasonable doubt that the defendant's actions were willful. I find that the defendant recklessly and deliberately disregarded this court's order and ignored all the warnings that she had received, public and private, about not taking retaliatory action against Officer Brown.

Tr. 8/23(pm) at 2-3, 7-8. Judge Lamberth did not credit Ms. xxxxxxx's testimony. Tr. 8/23(pm) at 3. Specifically, he found that Ms. xxxxxxx instigated the May 8, 1995, argument over xxxxxxx's photographs, and credited Lieutenant Goodall's testimony that Ms. xxxxxxx said on May 8, 1995, "I don't care about the suit. [Brown] acts like she can't be touched." Tr. 8/23(pm) at 4. He found that Ms. xxxxxxx "threw her bullets at Officer Brown" on May 16, 1995. Tr. 8/23(pm) at 4-5. He found that the statements occurring prior to his March 15, 1995 order provided "strong evidence that the defendant's behavior was caused by Brown's testimony in this courtroom on March 3rd." Tr. 8/23(pm) at 5.

SUMMARY OF ARGUMENT

I.The government failed to prove beyond a reasonable doubt that the judge's order, which enjoined the Department of Corrections and its agents and employees "from taking any retaliatory action" against any of the witnesses in the Bessye Neal case, was clear and specific. The order was especially deficient in light of the audience of laypersons to which it was addressed. The phrase "retaliatory action," without any explanation or definition, carries little meaning for a high school graduate with no training in the law, who is a worker with absolutely no supervisory authority over any other worker, and who is uninvolved in the underlying litigation and without benefit of counsel.

II.The district court's failure to provide appellant with notice of the July, 1995 incident in which she is alleged to have attempted to trip Ms. Brown violated Due Process and the Federal Rules of Criminal Procedure, both of which require that the defendant receive notice of all of "the essential facts constituting the criminal contempt charged." Fed.R.Crim.P. 42(b). The judge's show cause order merely directed Ms. xxxxxxx to "show cause why she should not be held in civil and criminal contempt of court for violating this court's order dated March 15, 1995, enjoining retaliation by defendants, their agents and employees, against Ms. Brown." While the order referenced the Special Master's report, that report made no mention of the alleged July, 1995 incident. In the absence of any notice, appellant was unable to conduct her own investigation of the incident, or to prepare to effectively cross-examine her accuser, or to present witnesses on her own behalf.ARGUMENT

I.THE EVIDENCE WAS INSUFFICIENT TO SUPPORT A FINDING OF CRIMINAL CONTEMPT FOR VIOLATION OF THE JUDGE'S ORDER WHERE THE ORDER WAS NOT CLEAR AND REASONABLY SPECIFIC.

A.Standard of Review.

This Court reviews the trial court's denial of Ms. xxxxxxx's motion for judgment of acquittal de novo. This Court does not defer to the trial court, but rather must make its own independent judgment regarding the sufficiency of the evidence, viewing it in the light most favorable to the government. See Burks v. United States, 437 U.S. 1, 16-17 (1978); United States v. Johnson, 952 F.2d 1407, 1409 (D.C. Cir. 1992). Ms. xxxxxxx's conviction must be reversed if, on the evidence presented, a "fair-minded and reasonable trier of fact" could not find guilt beyond a reasonable doubt. In re Levine, 27 F.3d 594, 595 (D.C. Cir. 1994), cert. denied, 115 S. Ct. 1356 (1995) (quoting In re Holloway, 995 F.2d 1080, 1082 (D.C. Cir. 1993), cert. denied, 114 S. Ct. 1537 (1994)); Jackson v. Virginia, 443 U.S. 307, 318-319 (1979).

B.The Evidence Was Insufficient to Allow a "Fair-Minded and Reasonable Trier of Fact" To Conclude Beyond a Reasonable Doubt that the March 15, 1995 Order Was Clear and Reasonably Specific.

In order to prove a violation of 18 U.S.C. § 401(3), the government is required to prove beyond a reasonable doubt the existence of a court order that is "clear and reasonably specific," United States v. NYNEX Corporation, 8 F.3d 52, 54 (D.C. Cir. 1993), or "unambiguous," id., and "unequivocal at the time it is issued." In re Holloway, 995 F.2d at 1082 (quoting Traub v. United States, 232 F.2d 43, 47 (D.C. Cir. 1955)). Footnote Second, the government is required to prove that the defendant violated the order and, third, that the violation was willful. NYNEX, 8 F.3d at 54. Guilt may be determined and punishment imposed only if the government has proved each of the elements beyond a reasonable doubt. Id. Footnote

The government failed to prove beyond a reasonable doubt that the judge's order, which enjoined the Department of Corrections and its agents and employees "from taking any retaliatory action" against any of the witnesses in the Bessye Neal case, was clear and specific such that "ordinary persons [would] know precisely what action [was] proscribed." United States v. Holtzman, 762 F.2d 720, 726 (9th Cir. 1985). Any ambiguities or omissions in the order must be resolved in favor of the defendant. Robin Woods Inc. v. Robin Woods, 28 F.3d 396, 399 (3d Cir. 1994); D. Patrick, Inc. v. Ford Motor Co., 8 F.3d 455, 462 (7th Cir. 1993); Cooper v. Texaco, 961 F.2d 71, 72 (5th Cir. 1992); Matter of Betts, 927 F.2d 983, 987 (11th Cir. 1991).

Fed.R.Civ.P. 65(d) requires that (emphasis added):

[e]very order granting an injunction and every restraining order shall set forth the reasons for its issuance; shall be specific in terms; [and] shall describe in reasonable detail, and not by reference to the complaint or other document, the act or acts sought to be restrained; . . . .

The policies underlying Rule 65(d)'s requirement of specificity and detail spring from the courts' awesome contempt power and the ease with which that power can be abused:

'The judicial contempt power is a potent weapon,' the [Supreme] Court asserted. 'When it is founded upon a decree too vague to be understood, it can be a deadly one.' Congress responded to that danger by requiring that a federal court frame its orders so that those who must obey them will know what the court intends to require and what it means to forbid.'

Common Cause v. Nuclear Regulatory Commission, 674 F.2d 921, 927 (D.C. Cir. 1982) (quoting International Longshoremen's Ass'n, Local 1291 v. Philadelphia Marine Trade Ass'n, 389 U.S. 64, 76 (1967)). Inmates of Allegheny County Jail v. Wecht, 754 F.2d 120, 129 (3d Cir. 1985) ("This requirement of specificity is related to the court's awesome civil and criminal contempt powers. Persons may not be placed at risk of contempt unless they have been given specific notice of the norm to which they must pattern their conduct.") (citations omitted); H.K. Porter Co., Inc. v. National Friction Products, 568 F.2d 24, 27 (7th Cir. 1977) ("Rule 65(d) is no mere extract from a manual of procedural practice. It is a page from the book of liberty."). In the plain language of Justice Holmes, "The defendants ought to be informed, as accurately as the case permits, what they are forbidden to do." Swift and Co. v. United States, 196 U.S. 375, 401 (1905).

Here, the March 15, 1995, order enjoining "retaliatory action" was not specific and detailed such that it left no reasonable doubt as to what behavior was prohibited and who was prohibited from behaving in that fashion. See Hess, 846 F.2d at 116 (order requiring party to make "bonafide offer of settlement" too vague and imprecise); Calvin Klein Cosmetics, 824 F.2d at 669 (order to "obey the law" too broadly requires the party "to guess at what kind of conduct would be deemed trademark infringement"); Common Cause, 674 F.2d at 927 (order compelling defendants to permit attendance at "meetings that are similar in nature to the July 18, 1980 meeting" not specific enough); SEC v. Savoy Industries, Inc., 665 F.2d 1310, 1318-19 (D.C. Cir. 1981) (order enjoining defendant from engaging in any act or practice which "operates or would operate as a fraud or deceit upon any person" too vague); Ben David v. Travisono, 495 F.2d 562, 564 (1st Cir. 1974) (order prohibiting "brutalization" of prisoners too indefinite); Alberti v. Cruise, 383 F.2d 268, 272 (4th Cir. 1967) (order enjoining plaintiff from "interfering with, molesting, harassing, or contacting" defendant insufficiently specific); United States v. Vitasafe Corp., 345 F.2d 864, 871 (3d Cir.) (order enjoining defendants from distributing literature containing certain specified statements and misrepresentations "or which is otherwise false and misleading" insufficiently specific), cert. denied, 382 U.S. 918 (1965).

Appellant xxxxxxx was not precisely informed as to what she was forbidden to do until the judge issued his August 9, 1995, order defining "retaliatory action." See A. at 141. Indeed, the fact that the judge found it necessary to define and interpret "retaliation" in its August 9th final judgment suggests that the earlier March 15th preliminary injunction lacked specificity and sufficient detail. Clark v. Coye, 60 F.3d 600, 604 (9th Cir. 1995) (fact that judge felt compelled to issue order interpreting injunction "belies the suggestion that the injunction on its face clearly prohibited" implementation of legislation restricting eligibility for state-run dental program).

The March 15, 1995 order was especially deficient in light of the audience of laypersons to which it was addressed. "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 Holloway, 995 F.3d at 1082. "For example, it may well be necessary that the specificity of orders directed to laypersons be greater than that of orders to lawyers." United States v. Turner, 812 F.2d 1552, 1565 (11th Cir. 1987). See Levine, 27 F.3d at 596 (analyzing clarity of order in light of fact that defendant was "trial lawyer of many years' experience").

In the absence of a specific and detailed order, appellant xxxxxxx could not be held to understand the precise contours of a prohibition against "retaliatory action" and to understand that the prohibition applied to her. Ms. xxxxxxx was a high school graduate (Tr. 8/23(am) at 6), who worked as a prison guard. The phrase "retaliatory action" alone has little meaning for an ordinary worker at the very bottom of a steep chain of command who is invested with absolutely no authority over any other worker. It has little meaning for a high school graduate who is untrained in the law, who is uninvolved in the underlying litigation, and who does not have the benefit of legal counsel. As other non-supervisory officers who testified in both the government's case-in-chief and in the defense case explained, they believed that the order applied to those who were supervisors -- i.e., those who were in a position to take adverse employment action against a corrections officer by altering an officer's work shift, by demoting an officer, etc.

Neither could appellant be expected to divine the meaning of "retaliatory action" and its application to her from the circumstances and the context in which the order was issued. This Court has held that, generally,

the fair notice requirement of Rule 65(d) must be applied 'in light of the circumstances surrounding [the injunction's] entry: the relief sought by the moving party, the evidence produced at the hearing on the injunction, and the mischief that the injunction seeks to prevent.' In the context of the litigation, an injunction's language might be sufficiently specific to notify the parties of the acts the court seeks to restrain.

Common Cause, 674 F.2d at 927 (quoting United States v. Christie Industries, Inc., 465 F.2d 1000, 1007 (3d Cir. 1972)). Here, however, appellant xxxxxxx was not involved in the Bessye Neal litigation, and the government produced no evidence that she even was aware of the "relief sought by the moving party" or of the "evidence produced at the hearing on the injunction." Nor did appellant receive even a summary explanation from her employer about the meaning of the judge's order prohibiting "retaliatory action."

Finally, to the extent that the judge intended by his order simply to require compliance with Title VII of the Civil Rights Act of 1964, see Tr. 8/22(pm) at 44, 71-72, such an order would have been invalid and an insufficient basis on which to hold a party in contempt since the contumacious behavior must clearly be prohibited "within [a court order's] four corners." United States v. ITT Continental Baking Co., 420 U.S. 223, 237 (1975) (quoting United States v. Armour & Co., 402 U.S. 673, 682 (1971)). In any event, a person in Ms. xxxxxxx's position cannot even look to Title VII caselaw for guidance because Section 704(a) of Title VII prohibiting retaliation applies only to employers or individuals who serve in a supervisory position and exercise significant control over hiring, firing or conditions of employment. 42 U.S.C. 2000e(b); Paroline v. Unisys Corp., 879 F.2d 100, 104 (4th Cir. 1989), aff'd in pertinent part, 900 F.2d 27 (4th Cir. 1990 (en banc); Sauers v. Salt Lake County, 1 F.3d 1122, 1125 (10th Cir. 1993).

II.DUE PROCESS AND FED.R.CRIM.P. 42(b) WERE VIOLATED WHERE THE SHOW CAUSE ORDER FAILED TO PROVIDE NOTICE TO APPELLANT OF ALL OF THE "ESSENTIAL FACTS CONSTITUTING THE CRIMINAL CONTEMPT CHARGED."

 

A.Standard of Review.

This Court reviews de novo whether the procedures employed comported with due process and with the requirements of Fed.R.Crim.P. 42(b). See United States v. Lee, 720 F.2d 1049, 1053 (9th Cir. 1983) (examining the procedure followed by the district court to determine whether it met the requirements of Rule 42(b)).


B.The Criminal Contempt Conviction Violated Due Process and Fed.R.Crim.P. Because it was Based In Part on a Factual Allegation About Which Appellant Had No Notice.

Due process and the Federal Rules of Criminal Procedure require that, before a defendant is subjected to a court's contempt power, he or she is entitled to notice of the essential facts underlying the charge. In re Oliver, 333 U.S. 257, 275 (1948); Taylor v. Hayes, 418 U.S. 488, 499 (1978) (due process requires that the contemnor receive "reasonable notice of the specific charges"); Fed.R.Crim.P 42(b); United States v. United Mine Workers of America, 330 U.S. 258, 297 (1947) (Rule 42(b) requires that appellants have been "fairly and completely apprised of the events and conduct constituting the contempt charged").

Fed.R.Crim.P. 42(b) provides, in pertinent part (emphasis added):

A criminal contempt except as provided in subdivision (a) of this rule shall be prosecuted on notice. The notice shall state the time and place of hearing, allowing a reasonable time for the preparation of the defense, and shall state the essential facts constituting the criminal contempt charged and describe it as such. The notice shall be given orally by the judge in open court in the presence of the defendant or, on application of the United States attorney or of an attorney appointed by the court for that purpose, by an order to show cause or an order of arrest.

Appellant was not provided notice prior to trial that one of the "essential facts constituting the criminal contempt charged" was a July, 1995 incident in which she allegedly attempted to trip Ms. Brown. The judge's show cause order referenced "the attached report and recommendation of the Special Master" and directed appellant xxxxxxx to "show cause why she should not be held in civil and criminal contempt of court for violating this court's order dated March 15, 1995, enjoining retaliation by defendants, their agents and employees, against Ms. Brown." A. at 11-A. No mention of the July, 1995 incident was made in the judge's show case order, nor in the Special Master's report, Footnote nor in the OPM's report. Apparently, the first time that appellant xxxxxxx received any information at all about this incident was one week prior to trial when the government included in its Jencks Act submissions an FBI 302 report of an interview with Ms. Hayes in which Ms. Hayes allegedly spelled out her allegation. Footnote Tr. 7/23 at 7; 8/22(pm) at 13-14; A. at 152.

This failure to provide notice of all of the "essential facts constituting the criminal contempt charged" in advance of the trial violated due process and Fed.R.Crim.P. 42(b). Lee, 720 F.2d at 1053 (reversing conviction where, inter alia, judge failed to advise defendant prior to hearing of specific factual basis underlying show cause order); Richmond Black Police Off'rs v. City of Richmond, VA., 548 F.2d 123, 126 (4th Cir. 1977) (reversing conviction where, inter alia, defendants never advised of specific factual basis of show cause order); North American Coal Corp. v. United Mine Workers of America, 512 F.2d 238, 244 (6th Cir. 1975) (same). See also N.A. Sales Company, Inc. v. Chapman Industries Corp., 736 F.2d 854, 858 (2d Cir. 1984) (civil contempt finding reversed where based in part on acts committed during a time period prior to that stated in the show cause order).

A show cause order that merely refers to violations of a previous order without stating specifically what conduct constituted the violations -- such as the allegation here of a violation of the "March 15, 1995, [order] enjoining retaliation by defendants, their agents and employees, against Ms. Brown" -- is not sufficient to provide notice of the "essential facts constituting the criminal contempt charged." Lee, 720 F.2d at 1053 (reference to motion filed by defendant insufficient notice of facts underlying contempt citation where judge failed to specify how defendant's motion constituted contumacious conduct); Richmond Black Police Off'rs, 548 F.2d at 126 (order directing defendants to show cause "why they [had] not violated the Consent Decree" insufficient notice of facts constituting the criminal contempt); United States v. Robinson, 449 F.2d 925, 930 (9th Cir. 1971) (show cause order stating that defendants violated certain paragraphs of preliminary injunction without stating the facts constituting the violation would be insufficient notice of facts constituting the contempt).

In determining whether sufficient notice was provided, this Court may consider any affidavits, reports or motions filed in conjunction with the show cause order. Robinson, 449 F.2d at 930. Here, notice of the four other alleged acts of retaliation was sufficient because the show cause order incorporated by reference the Special Master's report which detailed all of those factual allegations. However, a verdict of criminal contempt based in part on the testimony regarding the July, 1995 incident was entirely improper because appellant had never received notice that that alleged incident also was part of the "essential facts constituting the contempt charged."

The prejudice to appellant is apparent. Because appellant had never been apprised that the alleged July, 1995 incident was one of the incidents constituting the contempt, she was not in a position to defend against that charge by investigating the allegation, she was not prepared to effectively cross-examine her accuser, and was not in a position to discover any witnesses who might have testified in her defense. In short, she was blindsided. Thus, the case must be remanded to the district court for its consideration whether the remaining factual allegations, absent the alleged July, 1995 incident, would justify a finding of guilt beyond a reasonable doubt on the charge of criminal contempt. Armstrong v. Executive Office of President, 1 F.3d 1274, 1289 (D.C. Cir. 1993) (where one ground for contempt finding reversed, case remanded for consideration whether second ground, by itself, justified contempt finding).

CONCLUSION

For the foregoing reasons, the judgment against Ms. xxxxxxx must be vacated and the case remanded to the district court for entry of a judgment of acquittal. Even should the Court determine that the evidence is sufficient to sustain Ms. xxxxxxx's conviction, the case must be remanded to the district court for it to determine anew whether the government proved Ms. xxxxxxx's guilt beyond a reasonable doubt absent the evidence about which Ms. xxxxxxx was not given notice.

Respectfully submitted,


A. J. Kramer

Federal Public Defender


_________________________________

Sandra G. Roland

Assistant Federal Public Defender

625 Indiana Avenue, N.W.

Washington, D.C. 20004

(202) 208-7500


CERTIFICATE OF LENGTH


I HEREBY CERTIFY that the foregoing brief for appellant, xxxxxxx xxxxxxx, does not exceed the number of words permitted by D.C. Circuit Rule 28(d).


_________________________________

Sandra G. Roland



CERTIFICATE OF SERVICE


I HEREBY CERTIFY that two copies of the foregoing Brief and Addendum for Appellant have been delivered by hand to William Braun, Narcotic and Dangerous Drug Section, Criminal Division, U.S. Department of Justice, Room 11100, 1400 New York Avenue, N.W., Washington, D.C. 20005, this 25th day of November, 1996.

 

___________________________________

Sandra G. Roland