IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 95-30799
Summary Calendar
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UNITED STATES OF AMERICA,
Plaintiff,
VERSUS
LARRY R. DALIET, et al.,
Defendants,
YVONNE L. HUGHES,
Movant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Louisiana
(CR-95-153-N)
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July 2, 1996
Before SMITH, BENAVIDES, and DENNIS, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*
Yvonne Hughes appeals a $500 contempt sanction imposed for her
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited circumstances
set forth in 5TH CIR. R. 47.5.4.
failure to appear at a scheduled hearing. Because the court
imposed the sanction without conforming to the requirements of FED.
R. CRIM. P. 42(b), we vacate and remand.
I.
Hughes represents Larry Daliet in the underlying criminal
case. The district court scheduled Daliet’s rearraignment for
July 26, 1995, at 3:00 p.m. All the necessary parties appeared at
the appointed time except Hughes, who maintains that she was then
in state court and unable to leave. The district court cited
Hughes for failing to appear and imposed the sanction.
II.
Initially, we must determine whether the contempt order was
civil or criminal. Civil contempt orders are not usually immedi-
ately appealable, while criminal contempt orders are. Lamar Finan.
Corp. v. Adams, 918 F.2d 564, 566 (5th Cir. 1990).
A contempt order’s primary purpose is determinative. FDIC v.
LeGrand, 43 F.3d 163, 168 (5th Cir. 1995). If the purpose is
punitive, the order is criminal. Id. If its purpose is simply to
coerce compliance or to compensate another party for the
contemnor’s violation, the order is civil. Lamar, 918 F.2d at 566.
A key issue is whether the sanction is absolute or contingent on
the contemnor’s future actions. LeGrand, 43 F.3d at 168.
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The fine for contempt was because Hughes failed to appear at
the rearraignment and thus was not contingent upon any future
action on Hughes’s part. Accordingly, the sanction was criminal,
and we have jurisdiction.
III.
A judge may impose criminal contempt sanctions in two ways.
If he saw or heard the conduct constituting contempt and the
conduct was committed in the court’s presence, the judge may impose
sanctions summarily. FED. R. CRIM. P. 42(a). In all other cases,
he may impose sanctions only after providing the accused contemnor
with notice of a hearing, allowing a reasonable time for
preparation of a defense, and informing the contemnor of the
essential facts constituting the charged contempt. Id.
The court imposed the sanction summarily, apparently relying
on rule 42(a). We have previously held, however, that rule 42(a)
generally should not be used to punish an attorney for failing to
appear. See Thyssen, Inc. v. S/S Chuen On, 693 F.2d 1171, 1175
(5th Cir. 1982) (stating that “ordinarily Rule 42(a) may not be
used to punish an attorney for a contempt consisting of lateness or
absence from a scheduled court appearance”); see also United States
v. Onu, 730 F.2d 253, 254 (5th Cir.) (“The failure of a lawyer to
appear for a trial is not a contempt committed in the presence of
the court. Therefore it may be prosecuted only on notice, as
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prescribed by Fed.R.Cr.P. 42(b) . . . .”), cert. denied, 469 U.S.
856 (1984). Summary contempt dispositions are reserved for rare
cases such as threatening a judge or disrupting a court proceeding.
Id. at 255.
The district court erred by relying on summary contempt
proceedings to punish Hughes. We therefore VACATE the order
imposing sanctions and REMAND so that the district court may accord
Hughes the notice and hearing required by rule 42(b).
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