UNITED STATES v. ROACH, 136 F.3d 794 (D.C. Cir. 1998)

United States of America, Appellee v. David Roach, Appellant

No. 96-3119United States Court of Appeals, District of Columbia Circuit.September Term, 1997
Filed February 19, 1998

Appeal from the United States District Court for the District of Columbia.

(No. 96ms0020).

Before: EDWARDS, Chief Judge, WALD and TATEL, Circuit Judges.

[1] ORDER
[2] On April 1, 1997, this court issued an opinion upholding the conviction of appellant David Roach under 18 U.S.C. § 401(3) (1994). United States v. Roach, 108 F.3d 1477 (D.C. Cir.), cert. denied, 118 S.Ct. 446 (1997). In the opinion, we rejected Roach’s argument that he was denied a jury trial in violation of the Sixth Amendment. Id. at 1484. On December 19, 1997, in a case involving another employee of the Department of Corrections, Dr. Anthony Rapone, who was also convicted of criminal contempt under 18 U.S.C. § 401(3), another panel of this court held that the defendant was entitled to a jury trial under 42 U.S.C. § 2000h
(1994) (“In any proceeding for criminal contempt arising under title II, III, IV, V, VI, or VII of [the Civil Rights Act of 1964], 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.”). United States v. Rapone, 131 F.3d 188, 195-97 (D.C. Cir. 1997).

[3] Although Roach did not argue before us that he had a statutory right to a jury trial, we believe that in light of this court’s decision in Rapone, Roach should receive a jury trial under 42 U.S.C. § 2000(h). Because we would not have reached the issue had we originally granted Roach a jury trial under this statute, we vacate the portion of our previous decision in Roach dealing with Roach’s constitutional right to a jury trial. Roach, 108 F.3d at 1484. We also vacate those portions of the opinion addressing the sufficiency of the evidence against Roach, id. at 1481-82, and Roach’s sentencing, id. at 1484-85. All other portions of the opinion shall remain unaffected by this order.

[4] PER CURIAM.

[5] FOR THE COURT:

[6] Mark J. Langer, Clerk