[DO NOT PUBLISH]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., 

, 1546 (11th Cir. 1996); Beck v.

Prupis, 

, 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, 

. 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. 

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, 

, 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, 

, 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. 

      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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