[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
DECEMBER 1, 2005
No. 05-12254 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket Nos. 04-61246-CV-WPD & 03-32158 BKC-PG
JAMES F. WALKER,
Debtor.
__________________________________________________
JAMES F. WALKER,
Plaintiff-Appellant,
versus
MARY ALICE GWYNN, ESQ.,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(December 1, 2005)
Before BLACK, BARKETT and PRYOR, Circuit Judges.
PER CURIAM:
James F. Walker appeals the decision of the district court, which affirmed
the denial by the bankruptcy court of Walker’s motion for a finding of contempt
and sanctions against Mary Alice Gwynn for violation of the automatic stay in
Walker’s bankruptcy proceedings. Because the record and case law support the
denial of the motion, the bankruptcy court did not abuse its discretion. We affirm.
BACKGROUND
On November 14, 1989, Eleanor C. Cole obtained, in a civil action in a
Florida court, a final judgment against Walker for over three hundred thousand
dollars. In October 1990, Walker was arrested and charged by the state of Florida
with several counts of grand theft regarding the debt owed to Cole that was the
subject of the civil action. Walker served eighteen months of imprisonment and
was ordered to make restitution to Cole. On April 25, 2003, Walker filed a
voluntary Chapter 7 Bankruptcy Petition, and on May 30, Cole filed a Proof of
Claim in the bankruptcy proceeding.
The Florida court in Walker’s criminal action held three hearings regarding
Wallker’s alleged violations of his probation. The second hearing involved
Walker’s failure to make restitution to Cole, who was represented by Gwynn. At
that hearing, Gwynn made numerous comments to the judge and objected to some
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of the arguments made by Walker’s criminal counsel. After the final hearing,
Walker was incarcerated for violating the terms of his probation.
Walker moved the bankruptcy court to hold Gwynn in contempt and enter
sanctions against her. Walker argued that Gwynn’s comments in the criminal
proceeding were misleading, untrue, and made with the intent of gaining an unfair
advantage for Cole over Walker’s other creditors, in violation of the automatic stay
of the bankruptcy proceedings. 11 U.S.C. § 362(a). The bankruptcy court found
that Walker failed to establish that Gwynn had violated the automatic stay. The
court concluded that a criminal restitution hearing is exempt from the automatic
stay and civil counsel for a creditor does not violate the automatic stay by assisting
the prosecution at the restitution hearing. The district court affirmed the
bankruptcy court.
STANDARD OF REVIEW
We review the denial of a motion for contempt and sanctions for abuse of
discretion. Jove Eng’g, Inc. v. I.R.S., 92 F.3d 1539, 1546 (11th Cir. 1996); Beck v.
Prupis, 162 F.3d 1090, 1100 (11th Cir. 1998). The denial of a motion for contempt
is given less deference than in other contexts when the motion is for an alleged
violation of the automatic stay. Jove Eng’g, Inc., 92 F.3d at 1546. We are more
likely to reverse the trial court if we disagree with its decision regarding an
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automatic stay than we would be in another context. Id. 92 F.3d at 1546 n.5.
DISCUSSION
The Bankruptcy Code excepts criminal proceedings from the automatic stay
imposed when a debtor files for bankruptcy. 11 U.S.C. § 362(b)(1). A restitution
hearing in a criminal proceeding is covered under this exception. See Bryan v.
Rainwater, 254 B.R. 273, 278 (N.D. Ala. 2000). The enforcement of a criminal
judgment against a debtor in a restitution hearing does not violate the automatic
stay, and a creditor does not violate the automatic stay by assisting the state in
enforcing the criminal judgment, even though the creditor’s primary motivation is
to collect on the debt. See In re Kavoosi, 55 B.R. 120, 122-23 (Bankr. S.D. Fla.
1985). A criminal prosecution for theft often requires the assistance of the
creditor, and this assistance does not violate the automatic stay. Id. at 123.
Although Walker concedes that a creditor may assist the state in prosecuting
a debtor, Walker argues that Gwynn went beyond assisting the prosecution and
intentionally violated the automatic stay. Walker argues that Gwynn made
numerous erroneous statements, provided substantial unsworn testimony, objected
to arguments by Walker’s criminal counsel, and assumed the role of the prosecutor.
Walker contends that the bankruptcy court was obliged to hold Gwynn in
contempt. We disagree.
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The bankruptcy court did not abuse its discretion in denying Walker’s
motion. The bankruptcy court found that Gwynn’s actions, while aggressive and
probably motivated by a desire to collect the debt owed her client, were not
directed towards the satisfaction of a civil judgment or to gain an unfair advantage
over Walker’s other creditors. The record supports the finding of the bankruptcy
court that Gwynn properly assisted the state in carrying out its duties in the
restitution hearing.
Walker’s citation to denials by Gwynn and Kathryn Heavens, the assistant
state attorney prosecuting the restitution hearings, that Gwynn was assisting the
prosecution do not lead this Court to the conclusion that the bankruptcy court
abused its discretion. Although both Gwynn and Heavens stated that Gwynn did
not provide assistance to the prosecutor at the restitution hearing, these statements
can be interpreted to relate to Gwynn assisting Heavens in an official capacity.
The district court, in its decision affirming the bankruptcy court, reasonably
concluded that Gwynn assisted the prosecution in an unofficial capacity.
CONCLUSION
Because the record supports the determination that Gwynn assisted the
prosecution and did not violate the automatic stay, the bankruptcy court did not
abuse its discretion in denying Walker’s motion for contempt and sanctions.
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AFFIRMED.
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