United States v. David Roach

ORDER PER CURIAM.

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, — U.S. -, 118 S.Ct. 446 , 139 L.Ed.2d 382 (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).

Athough 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 1484-95 . A1 other portions of the opinion shall remain unaffected by this order.