* 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should not be published and is not precedent except under the limited circumstances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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

No. 95-30799

Summary Calendar

_______________

UNITED STATES OF AMERICA,

Plaintiff,

VERSUS

LARRY R. DALIET, et al.,

Defendants,

YVONNE L. HUGHES,

Movant-Appellant.

_________________________

Appeal from the United States District Court

for the Eastern District of Louisiana

(CR-95-153-N)

_________________________

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
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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 immediately 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).