     Case: 11-31115       Document: 00512233994         Page: 1     Date Filed: 05/07/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                            May 7, 2013

                                       No. 11-31115                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA

                                                  Plaintiff–Appellee
v.

MIGUEL ANGEL PUENTE,

                                                  Defendant–Appellant



                   Appeal from the United States District Court
                      for the Western District of Louisiana
                           USDC No. 2:06-CR-20089-02


Before DeMOSS, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
       Miguel Angel Puente (“Puente”) appeals his contempt conviction.
Although the district court purportedly found Puente in civil contempt of court,
the conviction is more accurately criminal in nature. Because the district court
characterized the contempt order as civil, the court failed to provide the required
notice to Puente that criminal contempt proceedings had been initiated.
Accordingly, we vacate the contempt conviction.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                        I. FACTUAL BACKGROUND
      On January 4, 2008, Puente pleaded guilty to conspiracy to possess with
intent to distribute cocaine, marijuana, ecstasy, and other controlled substances.
He was released on bond pending sentencing. The sentencing hearing was
ultimately set for May 27, 2010. Puente did not appear at the hearing as
ordered. Defense counsel represented to the court that the defendant was en
route to the Lake Charles, Louisiana courthouse from McAllen, Texas by bus.
The court delayed the hearing several hours.
      When court reconvened that afternoon, Puente had still not arrived. An
arrest warrant issued and Puente was eventually arrested on June 6, 2011, as
he was attempting to enter the United States from Mexico, more than a year
after his initial failure to appear. The court issued an order requiring the
defendant to show cause “why he should not be held in contempt for absconding
and evading custody.” The Government filed a detailed memo addressing both
civil and criminal contempt proceedings, but ultimately informed the court that
it was “not seeking the initiation [of] Criminal Contempt Proceedings” because
the district court could adequately address Puente’s failure to appear in the
sentencing for the substantive drug conspiracy charge.          The Government
acknowledged that notice is required for a criminal contempt action that does
not occur in the courtroom.
      Five months later, the district court conducted a combined contempt and
conspiracy sentencing hearing. The minutes of court and the sentencing hearing
transcript specify that the district court set out to conduct a civil contempt
hearing. At the contempt hearing, Puente offered the following explanation as
justification for his failure to appear at his May 27, 2010 sentencing hearing: two
days prior to his planned bus trip to Lake Charles, Puente’s federal pre-trial
services officer removed his GPS tracker in anticipation of his travel to McAllen.
Then, Puente went to the bus terminal in McAllen to purchase his bus ticket.

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Puente claimed that while he was at the bus station three men grabbed him,
blindfolded him, and placed him in a vehicle. He was taken to an unknown
building, where was kept blindfolded for two days. He believed he recognized
the voice of one of his captors as a person he had identified to federal agents as
a participant in a shooting incident.        Thus, Puente believed he had been
kidnapped in retribution for his cooperation with federal agents against
members of the Mexican Zeta drug cartel.
      He further claimed that they moved him to an unknown location across
the Mexican border. While crossing the border near Hidalgo, Texas, his captors
removed the blindfold as the group approached the Mexican border, then
replaced it once they had crossed.           Puente says he was later released,
presumably because the person holding him was not paid as promised. Puente
said that after his release, he walked to his uncle’s house, and stayed there with
Puente’s young daughter. He said he made no effort to contact his probation
officer because he was scared of the cartel members, who, by that time, had
purportedly also kidnapped his wife, older daughter, and some other family
members. He remained in Mexico until June 6, 2011, when he was arrested on
the court’s warrant while trying to enter the United States with his younger
daughter.
   The court found the defendant in civil contempt of court. As support for its
order, the district court stated:
      I don’t necessarily doubt that some of these events happened. I do,
      however, doubt that they happened at such a time and in such a
      way that just happened to coincide with his sentencing, just
      happened to coincide with them taking his monitor off. And there
      is no reasonable explanation that I’ve heard for why he didn’t
      contact someone once he was released, someone from the Probation
      Office. And if he was willing to go to the border and try to re-enter
      with his daughter, he certainly could have done that months before.
      There’s no reasonable explanation about what changed that. So I do
      not believe the entire story that Mr. Puente has told us.

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On the contempt charge, the court ordered Puente to serve five months’
imprisonment consecutive to any other sentence it might impose as a result of
his drug conviction. The court then sentenced Puente to 180 months on the
conspiracy charge, to be followed by five years’ supervised release. Puente did
not contemporaneously object to his contempt proceedings.
      Appellate defense counsel filed a brief pursuant to Anders v. California,
386 U.S. 738 (1967), in which he asserted that the case presented no non-
frivolous issues suitable for review. Pursuant to the Anders brief, counsel filed
a motion to withdraw. This court ordered counsel to file either a supplemental
Anders brief or a brief on the merits specifically addressing the contempt
proceedings. Counsel submitted a brief in the present appeal.
                                II. DISCUSSION
      On appeal, Puente argues that the district court did not comply with
statutory requirements for contempt and that there was insufficient evidence to
support a contempt conviction. His position is that despite the government’s
characterization of the contempt conviction as civil, it was actually criminal in
nature. The government argues that there was sufficient evidence to support
even a criminal contempt conviction, and that any procedural requirements were
satisfied.
      Pursuant to 18 U.S.C. § 401(3), a court has the “power to punish by fine
or imprisonment, or both, at its discretion, such contempt of its authority, and
none other, as . . . [d]isobedience or resistence to its lawful writ, process, order,
rule, decree, or command.” This Court reviews a district court’s contempt order
for abuse of discretion. Smith v. Smith, 145 F.3d 335, 341 (5th Cir. 1998).
      “The first duty of an appellate court in reviewing a contempt judgment is
to determine whether the nature of the contempt proceeding was civil or
criminal.”   Smith v. Sullivan, 611 F.2d 1050, 1052 (5th Cir. 1980).            This


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determination is critical because there are several differences between the two.
For example, civil contempt orders must satisfy the clear and convincing
evidence standard, Travelhost, Inc. v. Blandford, 68 F.3d 958, 961 (5th Cir.
1995), while criminal contempt orders must be established beyond a reasonable
doubt, as in any other criminal case, In re Stewart, 571 F.2d 958, 965 (5th Cir.
1978). Further, for a criminal contempt order, the district court must also find
an additional element—that the defendant exhibited willful, contumacious
intent, 18 U.S.C § 401(A)(3), or a reckless state of mind, at the time the
prohibited conduct occurred, In re Joyce, 506 F.2d 373, 378 (5th Cir. 1975).
      In determining whether a contempt order is civil or criminal, the district
court’s characterization is relevant, but not conclusive. Smith v. Sullivan, 611
F.2d at 1053. Instead, properly characterizing an order as civil or criminal
depends on its primary purpose. In re Bradley, 588 F.3d 254, 263 (5th Cir. 2009)
(citing Lamar Fin. Corp. v. Adams, 918 F.2d 564, 566 (5th Cir. 1990)). If the
purpose of the order is to punish the contemnor and vindicate the authority of
the court, the order is viewed as criminal. Id. If instead the purpose is to coerce
the contemnor into compliance with a court order, the order is civil. Id. (citing
Adams, 918 F.2d at 566). While imprisonment is appropriate for either civil or
criminal contempt, contempt is civil if the imprisonment is conditional and
coercive, but criminal if it is backward-looking and unconditional. Id. If an
order is partly coercive and partly punitive, “the criminal feature of the order is
dominant.” Port v. Heard, 764 F.2d 423, 426 (5th Cir. 1985).
      The district court here characterized its order as civil, but because the
punishment was backward-looking and unconditional, it is more properly
characterized as criminal in nature. See Bradley, 588 F.3d at 263. In fact, the
Government acknowledges the criminal nature of the contempt sanction:
“because the sanction imposed was apparently intended to punish past conduct
(i.e. the initial failure to appear) rather than to secure future compliance or

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remedy some harm resulting from noncompliance, the proceedings were
arguably criminal rather than civil in nature.” Thus, we consider the district
court’s contempt order to be criminal, notwithstanding the district court’s
express characterization of the order as civil.
      Federal Rule of Criminal Procedure 42(a) requires that a defendant be
given notice before he may be punished for criminal contempt. Rule 42(a) sets
forth three basic requirements: adequate notice, the appointment of a
prosecutor, and trial and disposition. The notice may be provided in one of three
ways: in open court, in an order to show cause, or in an arrest order. Fed. R.
Crim. P. 42(a)(1)(A)–(C). It must (1) inform the accused person of the time and
place of the trial, (2) allow him or her a reasonable time to prepare a defense,
and (3) state the essential facts constituting the criminal contempt and describe
it as such. Id. (emphasis added); see also In re Troutt, 460 F.3d 887, 894 (7th
Cir. 2006).
      The Government argues that Puente had sufficient notice because the
district court issued a show cause order five months prior to the hearing advising
him that the basis of the contempt hearing was his failure to appear. The
Government argues that while notice is required, it is not as strictly proscribed
as the notice required for an indictment. The Government argues that the notice
need only contain enough “to inform (the alleged contemnor) of the nature and
particulars of the contempt charged.” United States v. Martinez, 686 F.2d 334,
345 (5th Cir. 1982). However, in Martinez, the motions at issue specified that
criminal contempt charges were being pursued. Id. at 344, 339. Here, although
Puente knew that a contempt hearing was set, he had no notice that a criminal
contempt conviction would result.
      Federal Rule of Criminal Procedure 42(a) generally requires that a
criminal contempt charge be labeled as such. Adams, 918 F.2d at 567. In
Adams, the district court ordered the defendants to show cause why they should

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not be held in contempt, without specifying whether criminal or civil contempt
was contemplated. Id. at 566. This Court determined that the contempt order
was criminal in nature, and therefore vacated the contempt sanction for failure
to provide the required procedural safeguards. Id. at 567. “[T]he contemnor
must be given notice that the proceedings are of a criminal nature. . . . Typically
this notice must be explicit.” Id. (citations omitted).       Just as the Adams
defendants were “not given specific notice that the proceeding was a criminal
proceeding[,]” id., neither was Puente given the required notice. Moreover, even
if the court could have found beyond a reasonable doubt that Puente willfully
violated the court’s order, there is no indication that the district judge made that
determination or that he evaluated the evidence against the higher standard
required for criminal contempt.
      For the foregoing reasons, we VACATE Puente’s contempt conviction.




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