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00-2103, 00-2351 U.S. v. 1948 South Martin Luther King Drive, Springfield, Illinois, et al.

Minnesota Lawyer//November 12, 2001//

00-2103, 00-2351 U.S. v. 1948 South Martin Luther King Drive, Springfield, Illinois, et al.

Minnesota Lawyer//November 12, 2001//

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“Locher argues that the sanction was an order of criminal contempt and that he was entitled to notice and a hearing under Fed. R. Crim. P. 42(b). Judge Mills did not specify the legal basis for the imposition of sanctions in this civil forfeiture proceeding. Such specification would surely make our own review easier, although even if he had done so, we would still be required to consider whether that characterization was proper. See Securities and Exchange Commission v. Simpson, 885 F.2d 390, 394 (7th Cir. 1989). In any case, the parties did not brief the issue and we need not reach it because we conclude that, whether the sanctions were imposed as criminal or civil sanctions, it is certainly preferable, if not required under certain circumstances, for a district court judge to direct an offending party or attorney to show cause why he should not be sanctioned and to provide him with notice and a hearing. See Larsen v. City of Beloit, 130 F.3d 1278, 1286 (7th Cir. 1997) (imposition of sanctions under various provisions required notice and an opportunity to be heard); Kapco Mfg. Co., Inc. v. C&O Enter., Inc., 886 F.2d 1485, 1494-95 (7th Cir. 1989) (holding that due process requires notice and an opportunity to respond, but not necessarily a hearing). Providing such notice and a hearing prevents misunderstandings between the offending party and the sanctioning judge, provides an orderly manner and calm forum in which each party has had time to prepare adequately, and certainly aids our review on appeal.

“While it appears that Locher was given some opportunity to be heard, he was not given notice that he was in jeopardy of being sanctioned or adequate time to prepare a response. Rather, after briefly questioning Locher, Judge Mills took the matter ‘under abeyance’ and without further notice or argument issued a written order of sanction seven months later. In addition to these circumstances, our own review is hampered by the fact that we do not have Locher’s motion for parole and probation records in the record before us. Were we to conduct a review of Judge Mill’s sanctions order, it would be difficult, if not impossible, for us to assess whether Locher had indeed initially requested Melvin’s PSR and been denied that request. Under these particular circumstances, we conclude that the imposition of sanctions constituted an abuse of discretion and we remand the matter for the limited purpose of providing Locher with a hearing on this matter.”

Affirmed in part, and reversed in part.

Appeal from the United States District Court for the Central District of Illinois, Mills, J., Manion, J.

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