15 Ariz. App. 319 (1971)
488 P.2d 675
Jose CASTELLANOS, Petitioner,
v.
The INDUSTRIAL COMMISSION of Arizona, Respondent, Home Lumber and Supply Company, Respondent Employer, State Compensation Fund, Respondent Carrier.
No. 1 CA-IC 404.
Court of Appeals of Arizona, Division 1, Department A.
September 21, 1971.
Review Denied December 21, 1971.
*320 Nelson, Moran & Varga, by Garth Nelson, Yuma, for petitioner.
William C. Wahl, Jr., Chief Counsel, Phoenix, The Industrial Commission of Arizona, for respondent.
Robert K. Park, Chief Counsel, State Compensation Fund by Courtney L. Varner, Phoenix, for respondent carrier.
STEVENS, Presiding Judge.
This case is before the Court by writ of certiorari to test the lawfulness of an award and findings of The Industrial Commission of Arizona that the applicant had suffered no greater disability than that previously awarded to him.
The petitioner sustained an industrial injury on 19 March 1953. He was then a 29-year old laborer with a third-grade education, employed in Yuma in the yard of the respondent employer, Home Lumber and Supply Company. His regular duty at the time of his injury was grading, sorting and stacking lumber. While petitioner was in the process of cleaning up a place to start a new pile of lumber, an adjacent stack of lumber collapsed and fell on him, pinning him under it.
The principal injuries then reported as sustained by the petitioner were: fracture of the right hip; fracture of the right supraorbital area; partial avulsion of the nose; fracture of the maxilla; and loss of teeth.
After emergency treatment in Yuma, the petitioner was transferred to Phoenix. Orthopedic surgery was performed for open reduction of a fractured femur by application of a metal plate and screws. Petitioner was also treated for injuries to his face and teeth. The maxilla was refractured and a Steinman pin and Jelenko arch bars were inserted to treat the jaw fractures. Surgery was later performed on the nasal area to correct an obstruction of the airways. Dentists also extracted teeth and installed bridgework to replace the teeth lost or removed.
A consulting board thereafter found, in substance, that petitioner's condition was stationary, that he sustained a permanent partial disability of facial disfigurement and loss of teeth, and a 10% loss of function of the right leg. The board also observed that considering the loss of function of the leg together with the facial disfigurement "[t]he overall disability in terms of general physical functional disability is that of approximately a ten per cent general."
The Commission thereafter entered its findings and award providing total temporary disability from the date of the accident through 8 October 1953, and partial temporary disability through 11 October 1953. The facial injuries, and the permanent functional loss of use of the leg, were each found to be separate scheduled disabilities, with compensation allowed for an initial *321 period of four months at $141.63, then at $128.76 for an additional five months. There was no protest of this award and it became final.
On 18 September 1956, petitioner filed a petition for readjustment or reopening of the claim, alleging complete disability. Subsequent medical examination resulted in a report that no new or additional disability was found beyond that on petitioner's prior discharge in 1954, except possibly as to subjective complaints related to the metal bone plate. On 8 October 1956, the case was reopened to provide surgery for removal of the metal bone plate.
On 18 February 1957, an order was issued closing the case due to the petitioner's failure to submit himself for surgery.
The case then lay dormant for several years until petitioner filed a petition to readjust or reopen, alleging an injured spinal column, pelvic bone and painful jaws and gums. An examining physician, Dr. Greth, recommended the case be reopened for reevaluation. Petitioner was examined, and the Commission entered an award denying the petition to reopen.
About a year later, petitioner filed another petition to reopen, claiming that a new and additional disability had resulted in a loss of earning capacity. The petition was supported by a report of examination by Dr. Cain, finding petitioner to be suffering from chronic fibro-myositis and arthritis secondary to the original injury. In December 1964, petitioner was seen in consultation by a board which included Dr. Johnson who had previously examined petitioner. In the opinion of the consultants, there was no evidence of new and additional disability attributable to the original injury; that the current complaints were on the basis of degenerative joint changes and that the petitioner should be able to perform his regular work as a laborer.
The Commission entered an award denying reopening of the claim. The award was timely protested and a petition for hearing filed, alleging that petitioner had a 10% general disability and a loss of earning capacity. At the hearing, petitioner's counsel raised the issue that, taking into consideration the two separate scheduled disabilities, to the face and to the right leg, the original award should have been for an unscheduled disability.
The referee's report following this hearing indicated that probably the original award should have been on an unscheduled basis, but concluded the award was res judicata since the original award was allowed to become final. The Commission issued another award affirming its previous award denying reopening.
Another year elapsed and the file now moved into the phase directly concerned in this proceeding. Another petition to reopen the case was filed by an attorney on behalf of the petitioner. This petition was summarily denied, and a petition for hearing timely followed. Another formal hearing was held in Yuma in December 1966.
At the hearing, the petitioner and two lay witnesses testified concerning his inability to work, and Dr. Bailey gave medical testimony concerning his treatment and examination of the petitioner. Following the hearing, as recommended by the referee, petitioner was examined by Dr. Lytton-Smith, an orthopedic surgeon. He was also scheduled to be seen by an orthodontist, but the orthodontist selected by the Commission refused to examine him. Dr. Lytton-Smith reported that he found changes in the petitioner's low back, that he found changes in the sacroiliac articulation, which in his opinion were probably attributable to the original injury. He recommended removal of the metal plate and screws in the leg, and gave as his opinion that the petitioner had new and additional disability over that previously awarded which he believed to be "* * * not more than a 15% general physical disability * * *."
The petitioner was later seen by a Yuma dentist, Dr. Thurmond, who recommended certain dental treatment, including replacement of the bridge which was necessitated by the accident. He stated in his report that it was not possible for him to determine *322 whether the additional dental treatment was the result of the accident or not. There is no indication as to whether he received the medical report from the date of the accident or the Commission file for his review.
The Commission issued an award for new, additional or previously undiscovered disability on 15 May 1967.
Unfortunately for the petitioner, Dr. Lytton-Smith was on vacation, and was not available to begin treatment until after Labor Day of 1967. In his absence, the petitioner was sent to Dr. Haines for treatment. Instead of treating the petitioner, based upon the recommendations of Dr. Lytton-Smith, Dr. Haines submitted an examination report to the Commission in which he gave as his opinion the fact that the petitioner did not suffer a new or additional disability as the result of the accident. The Commission acted upon this report, and without convening a medical consultation board, without a further dental investigation, without a petition on the part of the respondent employer, or the petitioner, over the written objections of petitioner's attending physician Dr. Bailey, on 9 October 1967 issued an additional findings and award which found that his condition had again become stationary and that he was entitled to accident benefits through 5 September 1967, and had suffered no greater disability than that previously awarded to him. In view of the evidence before the Commission at that time, the Court is unable to understand the action of the Commission. But this was not the end.
The award was protested, and a petition for hearing was filed. The hearing was scheduled in Yuma almost a year later. The petitioner and Dr. Bailey testified concerning petitioner's inability to work since the last hearing. The testimony also disclosed that, in the intervening period, the petitioner had been committed to the State Hospital for treatment and observation. Dr. Bailey expressed the view that the petitioner's mental problems were causally related to the original injury. Counsel for the petitioner requested a continued hearing to a convenient future date in Phoenix, in order that he might subpoena appropriate doctors at the State Hospital, and examine State Hospital records with regard to the treatment of the petitioner, who had also been hospitalized there in 1956 and 1959.
A written report of Dr. Kivler, a psychiatrist who had examined and treated the petitioner in conjunction with the Arizona State Hospital, as an out-patient in Yuma, was submitted. The petitioner was granted a continued hearing; however, contrary to counsel's request the hearing was scheduled for Yuma on 31 October 1969, more than a year following the previous hearing.
By the time the Commission held the continued hearing, both psychiatrists who had examined the petitioner in Yuma had left the State of Arizona, each for a different state. Counsel for the petitioner had no alternative other than to offer in evidence records from a Social Security Commission hearing relative to the petitioner's mental problems. The records were objected to, and eventually the referee refused to admit them. Counsel for the petitioner renewed his plea for a continued hearing in Phoenix in order to put in evidence information available only at the Arizona State Mental Hospital. The referee refused to honor counsel's request, and issued a referee's report recommending that the award of no disability be affirmed with a 30-day clause. The Commission accepted the referee's recommendation, and the award complained of was issued.
Occasionally a case comes before the Court which causes us to wish that the Court possessed the power to reverse Industrial Commission cases with directions, a power we have in civil cases and this is such a case. This Court is empowered only to affirm or set aside the award of the Commission. A.R.S. § 23-951, subsec. D. We are in accord with Justice Alfred C. Lockwood in Ossic v. Verde Central Mines, 46 Ariz. 176, at page 184, 49 P.2d *323 396 (1935), wherein he sets forth at length the history and purpose of the Workmen's Compensation Act. As was pointed out by Justice Lockwood, and carried forward in a multitude of cases, the Workmen's Compensation Act should be liberally construed for the protection of those coming within its provisions. A.R.S. § 23-901 et seq., A.R.S. Constitution, Article 18, § 8; Parsons v. Industrial Commission, 98 Ariz. 74, 402 P.2d 20 (1965); Dunlap v. Industrial Commission, 90 Ariz. 3, 363 P.2d 600 (1961); Hannon v. Industrial Commission, 9 Ariz. App. 231, 451 P.2d 44 (1969).
The petitioner raises the issue of whether the Commission, after an award for two scheduled disabilities had been made and then allowed to become final, upon a proper finding of new, additional or previously undiscovered disability may enter an award for an unscheduled disability. In our opinion the answer to this is yes. The Supreme Court said in International Metal Products Division v. Industrial Commission, 99 Ariz. 73, 406 P.2d 838 (1965):
"Except in claims for death benefits, the Commission can never ascertain whether an award is final. Most awards have an element of finality as to the granting or denying of the benefits sought by the application which precipitated said order; however, it retains jurisdiction of all compensation cases for the purpose of altering, amending or rescinding its findings and award at the instance of either employee, insurer or employer, (a) upon showing a change in physical condition of the employee subsequent to findings and award, arising out of the injury, * * *." 99 Ariz. at 78, 406 P.2d at 841.
We do not consider the propriety of the Commission's having evaluated the initial results of the accident as separate scheduled injuries. It is our opinion that when at a later date the separate scheduled injuries, operating together, create a new condition which renders the petitioner disabled for work, he is entitled to reopen his claim for new, additional or previously undiscovered disability for unscheduled disability. Mental conditions causally related to an accidental injury can be disabling and as such are compensable. Cammeron v. Industrial Commission, 98 Ariz. 366, 405 P.2d 802 (1965); McAllister v. Industrial Commission, 88 Ariz. 25, 352 P.2d 359 (1960); Baxter v. Industrial Commission, 6 Ariz. App. 156, 430 P.2d 735 (1967); International Metal Products v. Industrial Commission, 2 Ariz. App. 399, 409 P.2d 319 (1965).
The replacement of the wornout dental prosthesis should, in the opinion of the Court, be the responsibility of the Commission, either as a part of the reopening of the claim or under the provisions of A.R.S. § 23-1065, subsec. A, par. 2, the special fund.
It is the opinion of the Court that the Commission's denial of counsel's request for a continued hearing to be held in Phoenix, was arbitrary and capricious. It is often difficult for the attorneys in the State of Arizona who practice in cities where The Industrial Commission does not maintain an office to be fully abreast of the files and to represent their clients. The only State-operated mental facility is in Phoenix, and the records are accessible only by making a trip to Phoenix to examine them. Expert psychiatric medical witnesses are not always available in every city in the State. In the instant case, distance combined with what appears to us to be unconscionable time lags in setting hearings resulted in the petitioner being prejudiced in his efforts to sustain his burden of proof.
The award is set aside.
CASE and DONOFRIO, JJ., concur.


        In the United States Court of Federal Claims
                                  OFFICE OF SPECIAL MASTERS
                                          No. 14-1208V
                                       Filed: June 4, 2015

****************************
MICHAEL LERG,                              *
                                           *
                     Petitioner,           *      Damages Decision Based on Proffer;
                                           *      Meningococcal Vaccine;
                                           *      Shoulder Injury Related to Vaccine
SECRETARY OF HEALTH                        *      Administration (“SIRVA”);
AND HUMAN SERVICES,                        *      Special Processing Unit (“SPU”)
                                           *
                     Respondent.           *
                                           *
****************************
Maximillian J. Muller, Esq., Muller Brazil, LLP, Philadelphia, PA, for petitioner.
Christine Becer, Esq., U.S. Department of Justice, Washington, DC for respondent.

                                DECISION AWARDING DAMAGES1

Vowell, Chief Special Master:

      On December 16, 2014, Michael Lerg filed a petition for compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.,2 [the
“Vaccine Act” or “Program”]. Petitioner alleged that he suffered a shoulder injury which
was caused by the meningococcal vaccine he received on May 6, 2014. Petition at 1.
The case was assigned to the Special Processing Unit of the Office of Special Masters.

       On May 29, 2015, I issued a ruling on entitlement, finding petitioner entitled to
compensation. On June 4, 2015, respondent filed a proffer on award of compensation
[“Proffer”] indicating petitioner should be awarded $125,000.00. Proffer at 1. According
to respondent’s Proffer, petitioner agrees to this proposed amount. Id.

     Pursuant to the terms stated in the attached Proffer, I award petitioner a lump
sum payment of $125,000.00 in the form of a check payable to petitioner, Michael
1 Because this unpublished decision contains a reasoned explanation for the action in this case, I intend
to post it on the United States Court of Federal Claims' website, in accordance with the E-Government
Act of 2002, Pub. L. No. 107-347, § 205, 116 Stat. 2899, 2913 (codified as amended at 44 U.S.C. § 3501
note (2006)). In accordance with Vaccine Rule 18(b), petitioner has 14 days to identify and move to
redact medical or other information, the disclosure of which would constitute an unwarranted invasion of
privacy. If, upon review, I agree that the identified material fits within this definition, I will redact such
material from public access.

2National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for
ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2006).
Lerg. This amount represents compensation for all damages that would be available
under § 300aa-15(a).

       The clerk of the court is directed to enter judgment in accordance with this
decision.3

                                        s/Denise K. Vowell
                                        Denise K. Vowell
                                        Chief Special Master

3
 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by each party filing a notice
renouncing the right to seek review.

                                                    2
          Case 1:14-vv-01208-UNJ Document 20 Filed 06/04/15 Page 1 of 2

             IN THE UNITED STATES COURT OF FEDERAL CLAIMS
                        OFFICE OF SPECIAL MASTERS
____________________________________
                                     )
MICHAEL LERG,                        )
                                     )
            Petitioner,              )
                                    )   No. 14-1208V
      v.                            )   Chief Special Master Vowell
                                    )   ECF
SECRETARY OF HEALTH AND             )
HUMAN SERVICES,                     )
                                    )
            Respondent.             )
____________________________________)

             RESPONDENT’S PROFFER ON AWARD OF COMPENSATION

I.     Items of Compensation

       Based upon the evidence of record, respondent proffers that petitioner should be awarded

$125,000.00, which represents all elements of compensation to which petitioner would be

entitled under 42 U.S.C. § 300aa-15(a). 1 Petitioner agrees.

II.    Form of the Award

       The parties recommend that the compensation provided to petitioner should be made

through a lump sum payment of $125,000.00 in the form of a check payable to petitioner.

Petitioner agrees.

                                              Respectfully submitted,

                                              BENJAMIN C. MIZER
                                              Principal Deputy Assistant Attorney General

                                              RUPA BHATTACHARYYA
                                              Director
                                              Torts Branch, Civil Division
1
  Should petitioner die prior to entry of judgment, the parties reserve the right to move the Court
for appropriate relief. In particular, respondent would oppose any award for future medical
expenses, future lost earnings, and future pain and suffering.
        Case 1:14-vv-01208-UNJ Document 20 Filed 06/04/15 Page 2 of 2

                                   VINCENT J. MATANOSKI
                                   Deputy Director
                                   Torts Branch, Civil Division

                                   ALTHEA W. DAVIS
                                   Senior Trial Attorney
                                   Torts Branch, Civil Division

                                     s/Christine Mary Becer
                                   CHRISTINE MARY BECER
                                   Trial Attorney
                                   Torts Branch, Civil Division
                                   U.S. Department of Justice
                                   P.O. Box 146
                                   Benjamin Franklin Station
                                   Washington, D.C. 20044-0146
                                   Tel: (202) 616-3665

Date:    June 4, 2015

                                      2


543 U.S. 1075
WILSONv.WEBB, WARDEN.
No. 04-7390.
Supreme Court of United States.
January 10, 2005.

1
C. A. 6th Cir. Certiorari denied. Reported below: 107 Fed. Appx. 516.


735 F.Supp. 686 (1990)
Mr. and Mrs. Henry Anthony PLAISANCE, Jr.
v.
TEXACO, INC. and Crosby Marine Services, Inc.
Civ. A. No. 89-2645.
United States District Court, E.D. Louisiana.
January 30, 1990.
Joseph J. Weigand, Jr., Houma, La., for plaintiffs.
Robert B. Acomb, Jr., J. Ralph White, New Orleans, La., for Crosby Marine Services, Inc.
David E. Faure, New Orleans, La., for Texaco, Inc.
McNAMARA, District Judge.
Before the court is the Motion of Defendants, Texaco, Inc. and Crosby Marine Service, Inc., to Dismiss Certain Claims Pursuant to Fed.R.Civ.P. 12(b)(6), or for Partial Summary Judgment. Plaintiffs, Mr. and Mrs. Henry Anthony Plaisance, Jr., oppose this Motion. The Motion, set to be heard on Wednesday, January 24, 1990, is before the court on briefs, without oral argument.
*687 Defendants move this court to dismiss Plaintiffs' claims that are attributable to emotional injury, arguing that Plaintiffs have not stated a cause of action under either the Jones Act or under general maritime law. The seminal case on this issue is Gaston v. Flowers Transp., 866 F.2d 816 (5th Cir.1989), which considered a seaman's action to recover for mental anguish resulting from watching his half-brother being crushed to death between two vessels. The court held that the seaman who did not show that he reasonably believed he was in actual physical danger when the accident occurred, could not recover under the Jones Act for mental anguish. The court examined the legislative history of the Jones Act, and concluded that "even a liberal interpretation of the Jones Act [does not require] extending recovery to those who suffer purely emotional injury." Id. at 817.
The Fifth Circuit decision of Hagerty v. L & L Marine Services, Inc., 788 F.2d 315 (5th Cir.1986), however, allowed a plaintiff to recover for emotional injuries "from fear of developing cancer where his fear [was] reasonable and causally related to the defendant's negligence." Id. at 318. The plaintiff in Hagerty was drenched in cancer-causing chemicals. The actual physical impact in Hagerty differentiated that plaintiff's claim from the claim before the Gaston court. The Gaston plaintiff never feared for his own safety, and did not experience a physical tort that was causally related to his claim of emotional injury.
The Gaston court was concerned about extending liability to situations of a bystander's emotional reactions for two reasons. First, the court noted that allowing this type of recovery "would represent a major departure from existing jurisprudence, as well as a vast extension of potential employer exposure to damages." 866 F.2d at 819. Second, the court found "something incongruous" in allowing this type of recovery for seamen since "[t]hese [persons] have knowingly and voluntarily chosen callings which, while today perhaps not fairly termed dangerous, yet do involve braving certain hazards and are traditionally not well suited to the squeamish or faint-hearted." Id. at 820. The court concluded, therefore, that allowing such a recovery is a decision that would be more appropriately left for the legislature. Id.
The court also considered whether Mr. Gaston could recover for finding himself in a "zone of danger." Id. The court noted that while Louisiana law allows for such a recovery, Gaston made no showing that he ever thought himself to be in danger. As such, the court did not decide the issue. In concluding, the court limited its holding as follows:
We do not hold today that no recovery can be had under the FELA/Jones Act for a purely emotional injury resulting from actions directed against the plaintiff or an occurrence that happened to him. That fact situation is not presented today. But whatever merit allowing recovery for purely emotional injury may have or may lack, we see none in allowing mere crewmen-bystanders to recover for witnessing the misfortune of another. Id. at 821.
In the instant litigation, Mr. Plaisance's claim is distinguishable from both Hagerty and Gaston. Unlike the Hagerty plaintiff, Plaisance did not experience any actual physical impact. Mr. Plaisance's claim is distinguishable from the Gaston claim, however, because Plaisance perceived himself to be in actual danger. Plaintiff witnessed a fire while working as the captain of the tug TOMMY CROSBY. The fire was extinguished, the TOMMY CROSBY was not damaged, and no one was injured as a result of the fire. Plaintiff did not participate in fighting the fire, and persons on other vessels in the vicinity of the fire escaped the fire by going to the vessel upon which Plaisance was working. Objectively, therefore, Plaintiff did not seem to be in a "zone of danger" during the fire.
While the record contains no evidence that Plaintiff was actually in danger during the fire, he nevertheless perceived himself to be in danger. In his deposition, Plaintiff reported that he asked to be relieved from his duties because he was upset about the accident. Plaintiff stated that he was disturbed *688 "[t]hat we could have all burned and all. That's what I told him, you know, that I could have all  blew them up and all, you know.... Well, that we could have all burned, you know, with the fire." Deposition, p. 106. Plaintiff alleges that he still dreams about the accident. He reported, "I see that [in his dreams]  the fire, you know. Those men running, you know. Running on my boat and all." Deposition, p. 110.
The facts of this case reveal that Mr. Plaisance's situation is more closely analogous to the Gaston decision rather than the situation in Hagerty. Plaintiff suffered no physical impact which led to his alleged emotional injury. Instead, Plaintiff claims injury only as a result of watching the fire. Nobody was injured in the blaze, Plaintiff's vessel was not damaged, and Plaisance did not undergo the trauma of watching someone else being seriously injured. Moreover, Plaintiff was not, objectively, in a zone of danger. Plaintiff, however, perceived himself to be in actual physical danger during the fire. While the reasonableness of Plaintiff's fear is ultimately a fact question, this court's reading of Gaston indicates that a plaintiff's subjective belief that he was in danger, standing alone, is probably insufficient to give rise to a cause of action for emotional injury under the Jones Act. In addition, Plaintiff cites no authority which indicates that a seaman can recover for a purely emotional injury under the general maritime law. Since the court is unaware of any authority in this regard, the court finds that Plaintiffs do not state a viable cause of action under the general maritime law.
Since the court concludes that Plaintiffs have not stated a viable cause of action for emotional injury in this matter, the court finds that this lawsuit should be dismissed in its entirety. Defendants' Motion only seeks to dismiss Plaintiffs' claim for damages as a result of witnessing the fire, stating that Defendants will challenge Plaisance's right to receive maintenance and cure, as well as Plaintiffs' claim for damages resulting from an alleged slip and fall that occurred approximately two hours after the fire incident. The court notes that Plaintiffs' complaint does not make a claim for maintenance and cure. It is well-settled that a seaman has the right, under the general maritime law, to recover maintenance and cure irrespective of the negligence or fault of his employer unless the injury was brought about by his own willful misbehavior. Martin J. Norris, The Law of Seaman § 678 (3d. ed. Supp.1984). Here, however, there is no claim for maintenance and cure before the court.
Regarding Mr. Plaisance's alleged slip and fall, this incident is also not pled in Plaintiffs' complaint, and it is not causally related to the fire. After the fire had been extinguished, the flotilla proceeded to Texaco's camp at Caillou Island. At that point the TOMMY CROSBY stopped at the Texaco fuel dock in order to fill its fuel tanks. Mr. Plaisance docked the tug next to the workover barge to transfer fuel from the tanks of the TOMMY CROSBY to the workover barge. During the process, diesel fuel was spilled on the deck of the tug, and Mr. Plaisance allegedly slipped and fell, landing on his back and head. This accident occurred at least two to three hours after the fire incident. Plaisance did not record his alleged slip and fall on the boat log, nor on the handwritten accident report which he signed after the accident. Moreover, he did not report this incident to anyone from Crosby or Texaco.
The court finds no connection between the fire and the slip and fall. Plaisance's deposition does not allege any connection between the incidents, and Plaintiffs' memorandum in opposition to Defendants' Motion does not indicate that the two accidents are connected in any way. The court's own analysis of the record does not reveal any causal link between the accidents. The slip and fall is not related in terms of time, location, or circumstances to the fire. Accordingly, since the slip and fall has not been pled separately, the court holds that this issue is not properly before the court at this time.
Accordingly, IT IS ORDERED that Defendants', Texaco, Inc. and Crosby Marine Services, Inc., Motion to Dismiss Certain *689 Claims Pursuant to Fed.R.Civ.P. 12(b)(6), or Partial Summary Judgment, should be and is GRANTED dismissing Plaintiffs' complaint in its entirety since the court finds that Plaisance's other potential causes of action have not been pled and are therefore not properly before the court. Judgment will be entered accordingly.


229 So.2d 807 (1969)
Dallas L. WATSON, III, as Administrator of the Estate of Dallas L. Watson, Jr., Deceased,
v.
Lillie Grice WATSON.
4 Div. 6.
Court of Civil Appeals of Alabama.
December 22, 1969.
A. A. Smith, Hartford, Farmer & Farmer, Dothan, for appellant.
H. K. & J. F. Martin, Dothan, for appellee.
THAGARD, Presiding Judge.
This is an appeal by the administrator of the estate of Dallas L. Watson, Jr., deceased, from a decree made by the Law and Equity Court of Houston County, Alabama, in Equity, during the lifetime of the decedent, granting a divorce and making a property award to Lillie Grice Watson, the former wife of decedent. Lillie Grice Watson was the complainant in the divorce proceeding, and the ground alleged and proved to the satisfaction of the trial court was cruelty.
Dallas L. Watson, Jr. and Lillie Grice Watson were married on April 8, 1965, and lived together until September 21, 1968, at which time there was an altercation and separation. We do not think it necessary to discuss the evidence as it relates to the alleged cruelty. With commendable candor, appellant says in his brief, "We concede that in law he should not have struck his wife and that on this point the Court was justified in awarding a divorce to the wife."
*808 The evidence discloses that at the time of the marriage and divorce the decedent (respondent in the divorce proceeding) was a wealthy man. His net worth was well in excess of $200,000.00, his holdings consisting mainly of rental buildings and farm acreage. The trial court awarded the complainant alimony in gross, real estate and personal property, to the value of about $70,000.00, or about one-third in value of the estate. It is this award to which appellant strenuously objects and to which he addresses his brief and argument.
There was an attempt by decedent's lawyers in the trial of the divorce case and by appellant in his brief to give the impression that Mrs. Watson was an adventuress whose emotion was avarice, not love. There was evidence that immediately after the marriage she busied herself with ascertaining the location and nature of her husband's holdings. On the other hand we think it equally probable that the decedent married her to get the benefit of her services. For many years she had been a secretary-bookkeeper and at one time had made as much as $500.00 per month, although at the time of the marriage her salary was $50.00 per week. The evidence is clear to the fact that she rendered considerable service to her husband in connection with the management of his affairs and that, without the help of a servant, she prepared his meals and kept the house satisfactorily.
At the time of the marriage the decedent was about fifty years old and the appellee about sixty-five years old, and the decedent was afflicted with hypertension and a cardiac disease from which he died about four years later. From these facts we deduce that the love emotion played no great part with either of the participants and that each of them received about what was bargained for.
The making of an allowance to the wife from the husband's estate is a matter within the sound discretion of the court, and if an allowance is made it must be as liberal as the estate of the husband will permit, regard being had to the condition of his family and to all the circumstances of the case. Code of Ala. 1940, Recomp. 1958, Tit. 34, Sec. 32; Davis v. Davis, 255 Ala. 488, 51 So.2d 876.
When permanent alimony is awarded in gross, the amount thereof usually varies from one-half of the husband's estate to one-third or less. In determining the amount of permanent alimony there is no fixed rule, since each case must be decided upon its own relevant facts in the light of what is fair and reasonable. Phillips v. Phillips, 221 Ala. 455, 129 So. 3; Steiner v. Steiner, 254 Ala. 260, 48 So.2d 184.
The testimony in this case was taken orally before the trial court except for the pre-trial deposition of the complainant. In such cases the finding of the trial court has the effect of a jury's verdict and will not be disturbed on appeal unless plainly erroneous or manifestly wrong. Lamar v. Lamar, 263 Ala. 391, 82 So.2d 558; Grubb v. Teale, 265 Ala. 257, 90 So.2d 727. We hold that the decree of the trial court in this case awarding alimony in gross to the complainant was not plainly erroneous (or excessive) or manifestly wrong."
The trial court allowed complainant attorney's fees of $1,000.00. Appellant asks that this be reduced to $750.00. The finding of the trial court was based upon undisputed testimony as to the value of the services and should not be disturbed by this court.
Appellee asks that this court allow her attorneys a reasonable fee for representing her in this appeal and cites Walling v. Walling, 253 Ala. 337, 45 So.2d 6, and Ex parte Taylor, 251 Ala. 387, 37 So. 2d 656, as authorities that the fee should be fixed at one-half that allowed by the lower court. Although the authority cited did authorize the court in a proper case to allow the wife an attorney's fee on appeal equal to that allowed by the lower court, *809 we are of the opinion that the allowance of any fee is in the sound discretion of the court. We think that in view of the rather generous property allowance made to the appellee by the trial court, the appellee should pay her own attorney's fee for representing her in this appeal, wherefore, an allowance is denied.
Affirmed.


2 Ill. App.3d 1054 (1971)
278 N.E.2d 122
CLANTON REESE, Plaintiff-Appellant,
v.
DOROTHY M. REESE, Defendant-Appellee.
No. 55610.
Illinois Appellate Court  First District.
November 17, 1971.
*1055 William T. Davies, of Elgin, for appellant.
Amiel G. Hall, of Chicago, for appellee.
Judgment affirmed.
Mr. JUSTICE DIERINGER delivered the opinion of the court:
The plaintiff, Clanton Reese, filed a suit for divorce and the defendant, Dorothy Reese, filed a countersuit for separate maintenance. On May 2, 1967, a decree of separate maintenance was granted to Dorothy Reese, and since the entry of the decree the plaintiff and defendant have lived apart.
On March 23, 1970, Clanton Reese filed a petition to set aside the decree of separate maintenance or, in the alternative, to grant a divorce to either party, and on September 25, 1970, the petition was denied. The plaintiff appeals from that ruling. It is his contention he is being deprived of his right to life, liberty and the pursuit of happiness by a statute that is vague and indefinite; that he has been deprived of life, liberty and property without due process of law, has been a victim of involuntary servitude, and further maintains the uncertainty of such a decree amounts to cruel and inhuman punishment, all in violation of the United States Constitution Amendments 5, 8, 13, and 14, and the 1870 Illinois Constitution, Article II, Bill of Rights Numbers 1 and 2.
The plaintiff argues the intent of the Separate Maintenance Statute (Ill. Rev. Stat. 1967, ch. 68, par. 22) is solely to preserve the marital relation and to hold the way open for marital reconciliation. He suggests since he has lived apart from his wife for four years, there is no hope of reconciliation, and the purposes of the statute are not being served. His conclusion is that failure to have a time limit on a separate maintenance agreement renders the statute vague and uncertain and deprives him of his constitutional rights.
 1-3 However, while one of the purposes of the statute is to prevent a hasty divorce, another purpose is to provide for the support of a spouse who is not at fault and who does not choose to sue for divorce. (Schneider v. Schneider (1941), 312 Ill. App. 59.) As regrettable as this situation may be for the plaintiff, the State has an interest in maintaining the integrity and permanency of the marriage relation and has chosen to limit the reasons for which a divorce may be granted. That a state may do so is well established. A Nevada court summed up the historical development of legislative control of divorce in Worthington v. District Court (1914), 37 Nev. 212, as follows:
"As divorce is not among the inalienable rights of man or the ones granted by Magna Charta, the federal or state constitutions or the common law, and except at the will and subject to any restrictions imposed by the legislature, has never been recognized as one of the *1056 guaranteed privileges of the citizen, and as marriage is the most important of the domestic relations, and of highest concern to the state, it follows that the right to have the bonds of matrimony dissolved is limited to the causes and subject to the requirement prescribed by the statute. * * * Questions relating to the policy, wisdom, and expediency of the law are for the people's representatives in the legislature assembled, and not for the courts to determine. It is the duty of the courts to interpret and enforce the statute in accordance with the intention of the law making body, unless it is clearly in conflict with some provisions of the organic law."
People ex rel. Christiansen v. Connell (1954), 2 Ill.2d 332, contains language similar to the Nevada case, but also states:
"This, however, does not mean that because the origin of the right or privilege is legislative there are no constitutional restrictions on the type of legislation which may be enacted regulating the exercise of the right. Once the matter has been committed to the judiciary, the parties to such judicial proceedings are clearly entitled to the same constitutional safeguards as are parties to other proceedings. The fact that the legislature might entirely abolish the right of access to the courts for purposes of divorce and annulment does not imply the power to make the exercise of those rights conditional upon a surrender of constitutional guarantees. * * * The Supreme Court of the United States has frequently announced the rule that a state may not attach unconstitutional conditions to the exercise of a right even though the right itself exists entirely at the pleasure of the State."
 4 The Separate Maintenance Statute, however, is not a restriction or condition of the right of access to divorce since it may only be used by the party who is without fault, and in no way precludes the innocent party from seeking a divorce.
 5,6 Therefore, since it has been frequently held there is a presumption in favor of the constitutionality of a legislative enactment (Davies Warehouse Co. v. Bowles, 321 U.S. 144; Chicago v. Ames (1937), 365 Ill. 529) to uphold the constitutionality of the Separate Maintenance Statute, it is sufficient to say it is not unreasonable in the light of legislative objectives and is within the province of legislative power. (People ex rel. Doty v. Connell (1956), 9 Ill.2d 390.) We find the plaintiff's constitutional rights have not been violated.
 7 Whether or not divorce or separate maintenance statutes are inadequate or inequitable, they can be corrected only by the legislature and not by judicial pronouncement. In Hilliard v. Hilliard (1960), 25 Ill. App.2d 468, the court faced a fact situation similar to the one at bar. In that case the court noted:

*1057 "Some cogent reasons are advanced in support of the husband's thesis that a wife, who is being supported under a separation decree, should neither accept a husband's proposals to resume married life or seek a divorce herself; or, if she fails to do either, he should be permitted to divorce her. * * * It is said to be unfair to allow a wife to retain indefinitely the unique status which a separate maintenance decree confers on her, while her husband, unable to free himself, is denied the advantages of marriage or the privileges of divorce. But it would also be unfair to compel a wife, who has kept her matrimonial vows, to either involuntarily condone her husband's misdeeds or be placed in the position of the guilty party and have divorce thrust upon her. * * * Whether the prolonged separation of husband and wife under a separate maintenance decree is sociologically desirable is a problem for legislative determination, and the problem has been before our legislature many times. * * * We have no power under the statute to approve a divorce upon the thesis urged by the husband in this case. If the divorce or separate maintenance statutes are regarded as inadequate or inequitable they can be corrected only by the legislature and not by judicial pronouncement."
For these reasons, the judgment of the circuit court of Cook County is affirmed.
Judgment affirmed.
ADESKO, P.J., and BURMAN, J., concur.


207 F.2d 310
UNITED STATESv.BROWN.
No. 10920.
United States Court of Appeals, Seventh Circuit.
October 8, 1953.

Chester Brown, pro se.
Otto Kerner, Jr., U. S. Atty., Frank J. Gagen, Jr., Asst. U. S. Atty., Chicago, Ill., John Peter Lulinski, Asst. U. S. Atty., Chicago, Ill., for appellee.
Before MAJOR, Chief Judge, and DUFFY and SWAIM, Circuit Judges.
SWAIM, Circuit Judge.

1
This appeal is from an order of the District Court denying the defendant's motion under Title 28 U.S.C. § 2255, to vacate sentence. This is the fifth such motion attacking his sentence which this prisoner has filed. The statute expressly provides that: "The sentencing court shall not be required to entertain a second or successive motion for similar relief on behalf of the same prisoner." This provision of the statute clearly leaves the matter of entertaining a second or subsequent motion to the discretion of the trial court. Moss v. United States, 10 Cir., 177 F.2d 438; Story v. United States, 8 Cir., 185 F.2d 952.

2
However, if the defendant had appealed from the denial of his first motion to set aside his sentence, we would have affirmed the action of the trial court on the merits of the question raised by the defendant.

3
The sentence which the defendant was seeking to vacate was entered on his plea of guilty to an indictment in three counts. The first count charged that on July 26, 1949, the defendant purchased 4 grains of heroin and 2.6 grains of cocaine, "not then and there in the original stamped packages, nor from the original stamped packages," in violation of 26 U.S.C. § 2553(a). He was charged in the second count with the sale of narcotics of the same kind and quantity on July 26, 1949, in violation of 26 U.S. C. § 2554(a). And the third count of the indictment recites that on the same date, the defendant "did then and there fraudulently and knowingly receive, conceal, buy and facilitate the transportation and concealment after importation into the United States" of 4 grains of heroin and 2.6 grains of cocaine, "knowing the same to be imported into the United States contrary to law," in violation of 21 U.S.C. § 174. He was sentenced to a term of five years on each of the first two counts and to ten years on the third, the sentences to run concurrently.

4
In each of his petitions, except the first, the defendant contended that the first and third counts of the indictment charge a single offense, for which but a single punishment could be imposed; and that the sentence under count three should, therefore, be vacated. To support this contention, the defendant points to the presumptions which may arise from the possession of narcotics under § 2553(a) of Title 26 U.S.C., and under § 174 of Title 21 U.S. C., upon which counts one and three, respectively, are founded.

5
Section 2553(a) provides that the absence of tax-paid stamps from any of the enumerated drugs "shall be prima facie evidence of a violation of this sub-section by the person in whose possession same may be found * * *." And § 174 provided: "Whenever on trial for a violation of this section the defendant is shown to have or to have had possession of the narcotic drug, such possession shall be deemed sufficient evidence to authorize conviction unless the defendant explains the possession to the satisfaction of the jury."

6
Thus, evidence of possession and the absence of tax-paid stamps may be sufficient to establish a violation of § 2553 (a), and the unexplained possession of the defendant might have been considered sufficient to establish his guilt under § 174. The defendant argues that conviction and sentence under both statutory provisions, which might be based solely on the presumptions flowing from a single act of possession, constitutes double punishment. But, in the instant case, the guilt of the defendant was not based on these presumptions, but on the defendant's plea of guilty to all three counts of the indictment.

7
Section 2553 of Title 26 U.S.C., does not make it a crime to possess the narcotics, but only makes it unlawful to "purchase, sell, dispense, or distribute" them. Nor does § 174 of Title 21 U.S. C., make mere possession a crime. To be guilty of the crime defined by this latter section, the defendant must import or bring the narcotic drugs into the United States contrary to law, or assist in so doing, or receive, conceal, buy, sell or in some manner facilitate the distribution, concealment or sale of such drugs after they have been imported or brought into the United States, knowing the same to have been imported contrary to law.

8
Thus we see that, while a person violating either of these sections would probably have narcotics in his possession, the possession is not a necessary element of either of the substantive crimes which these two statutes define. The presumptions are only made a statutory rule of evidence.

9
The offense charged in the first count of the indictment is the purchase of narcotics neither in nor from the original stamped packages and, in count three, dealing in narcotics known to have been unlawfully imported. These offenses are obviously separate and distinct, for each requires proof of different facts. Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306. They are not made identical by the fact that proof of possession would sustain, prima facie, both counts. For that rule, as the court stated in Corollo v. Dutton, 5 Cir., 63 F.2d 7, 8, "does not define the substantive offenses; it deals with their proof. It merely makes proof of possession presumptive evidence, prima facie, of the facts essential to make out a case. While proof of possession operates with equal force under each count, the presumption which it raises is, as to each count, of the facts essential to conviction under it." See also Silverman v. United States, 1 Cir., 59 F.2d 636, 637-638; Sorrentino v. United States, 9 Cir., 163 F.2d 627, 630 and Bruno v. United States, 9 Cir., 164 F.2d 693.

10
The defendant not only pleaded guilty to the violation of both of these statutes, but in the fourth petition which he filed to set aside his sentence he said: "It is not argued that petitioner did not violate Section 2553(a) of Title 26 and Section 174, Title 21 U.S.C." He must then necessarily admit that, but for his sentence on count one of the indictment, his sentence of ten years on count three would have been legal because that was within the maximum fixed by the Act. Since the sentences on both counts were to run concurrently, he was not prejudiced by his sentence of five years on the first count. Anderson v. United States, 6 Cir., 189 F.2d 202, 204.

11
The judgment is affirmed.


543 U.S. 934
TAALIB-DINv.CITY OF DETROIT, MICHIGAN, ET AL.
No. 04-5806.
Supreme Court of United States.
October 12, 2004.

1
C. A. D. C. Cir. Certiorari denied. Reported below: 89 Fed. Appx. 281.


                           NOT FOR PUBLICATION                            FILED
                    UNITED STATES COURT OF APPEALS                        DEC 26 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

NICHOLAS PATRICK,                               No. 17-16243

                Plaintiff-Appellant,            D.C. No. 1:16-cv-00239-LJO-MJS

 v.
                                                MEMORANDUM*
REYNAGA; et al.,

                Defendants-Appellees.

                   Appeal from the United States District Court
                      for the Eastern District of California
                   Lawrence J. O’Neill, Chief Judge, Presiding

                          Submitted December 18, 2017**

Before:      WALLACE, SILVERMAN, and BYBEE, Circuit Judges.

      Nicholas Patrick, a California state prisoner, appeals pro se from the district

court’s judgment dismissing his 42 U.S.C. § 1983 action alleging constitutional

violations. We have jurisdiction under 28 U.S.C. § 1291. We review de novo a

dismissal under 28 U.S.C § 1915(e)(2)(B)(ii). Barren v. Harrington, 152 F.3d

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
1193, 1194 (9th Cir. 1998) (order). We may affirm on any basis supported by the

record. Lopez v. Smith, 203 F.3d 1122, 1126 (9th Cir. 2000). We affirm in part,

reverse in part, and remand.

      Dismissal of Patrick’s equal protection claim was proper because Patrick

failed to allege facts sufficient to show that defendants discriminated against him

based on his membership in a protected class. See Hebbe v. Pliler, 627 F.3d 338,

341-42 (9th Cir. 2010) (although pro se pleadings are liberally construed, a

plaintiff must allege facts sufficient to state a plausible claim); Serrano v. Francis,

345 F.3d 1071, 1081-82 (9th Cir. 2003) (setting forth elements of an equal

protection claim).

      Patrick alleged that defendants withheld his outgoing mail to state courts.

Liberally construed, these allegations are sufficient to warrant ordering defendants

to file an answer. See Wilhelm v. Rotman, 680 F.3d 1113, 1116 (9th Cir. 2012);

Witherow v. Paff, 52 F.3d 264, 265 (9th Cir. 1995) (describing prisoners’ First

Amendment right to send and receive mail). We reverse the judgment in part and

remand for further proceedings on this claim only.

      We do not consider arguments and allegations raised for the first time on

appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

                                           2                                    17-16243
      We do not consider documents not presented to the district court. See

United States v. Elias, 921 F.2d 870, 874 (9th Cir. 1990) (“Documents or facts not

presented to the district court are not part of the record on appeal.”).

      AFFIRMED in part, REVERSED in part, and REMANDED.

                                           3                                  17-16243


                                             MANDATE

THE STATE OF TEXAS

TO THE 81ST JUDICIAL DISTRICT COURT OF LA SALLE COUNTY, GREETINGS:

Before our Court of Appeals for the Fourth District of Texas on April 23, 2015, the cause upon appeal to revise
or reverse your judgment between

Henry Gilbert Ayala and Chesapeake Exploration, LLC, Appellant

V.

Natividad A. Soto, Appellee

No. 04-12-00860-CV and Tr. Ct. No. 11-03-00037-CVL

was determined, and therein our said Court of Appeals made its order in these words:

     In accordance with this court’s opinion of this date, the trial court order
granting summary judgment in favor of Natividad A. Soto is REVERSED; it is
RENDERED that Natividad A. Soto take nothing against Chesapeake
Exploration, LLC, and this cause is REMANDED to trial court for further
proceedings consistent with this opinion. Costs of appeal are taxed against
Appellee Natividad A. Soto.
WHEREFORE, WE COMMAND YOU to observe the order of our said Court of Appeals for the Fourth
District of Texas, in this behalf and in all things have the order duly recognized, obeyed, and executed.

WITNESS the Hon. Sandee Bryan Marion, Chief Justice of the Court of Appeals for the Fourth District of
Texas, with the seal of the Court affixed and the City of San Antonio on June 15, 2015.

                                                           KEITH E. HOTTLE, CLERK

                                                           Cynthia A. Martinez
                                                           Deputy Clerk, Ext. 53853
                                            BILL OF COSTS

        TEXAS COURT OF APPEALS, FOURTH DISTRICT, AT SAN ANTONIO

                                        No. 04-12-00860-CV

                      Henry Gilbert Ayala and Chesapeake Exploration, LLC

                                                    v.

                                            Natividad A. Soto

       (NO. 11-03-00037-CVL IN 81ST JUDICIAL DISTRICT COURT OF LA SALLE COUNTY)

TYPE OF FEE                  CHARGES         PAID          BY
FEES FOR SHIPPING CASES TO
S.C. OR CCA                        $25.00    PAID          BROCK & BROCK
MOTION FEE                         $10.00    NOT PAID      N/A
MOTION FEE                         $10.00    PAID          OCTAVIO SALINAS II
MOTION FEE                         $10.00    E-PAID        CARLOS M. ZAFFIRINI
INDIGENCY FILING FEE               $25.00    PAID          OCTAVIO SALINAS II
SUPREME COURT CHAPTER 51
FEE                                $50.00    PAID          OCTAVIO SALINAS II
FILING                            $100.00    PAID          OCTAVIO SALINAS II

      Balance of costs owing to the Fourth Court of Appeals, San Antonio, Texas: $10.00

        Court costs in this cause shall be paid as per the Judgment issued by this Court.

     I, KEITH E. HOTTLE, CLERK OF THE FOURTH COURT OF APPEALS OF THE STATE OF
TEXAS, do hereby certify that the above and foregoing is a true and correct copy of the cost bill of
THE COURT OF APPEALS FOR THE FOURTH DISTRICT OF TEXAS, showing the charges and
payments, in the above numbered and styled cause, as the same appears of record in this office.

      IN TESTIMONY WHEREOF, witness my hand and the Seal of the COURT OF APPEALS for
the Fourth District of Texas, this June 15, 2015.

                                                         KEITH E. HOTTLE, CLERK

                                                         Cynthia A. Martinez
                                                         Deputy Clerk, Ext. 53853


621 F.Supp.2d 337 (2009)
UNITED STATES of America
v.
Robert Franklin DOYLE, Jr., Defendant.
No. 2:07CR00004.
United States District Court, W.D. Virginia, Big Stone Gap Division.
June 2, 2009.
*339 Jennifer R. Bockhorst, Assistant United States Attorney, Abingdon, VA, and Samuel E. Fishel, IV, Special Assistant United States Attorney, Richmond, VA, for United States.
John E. Jessee, Jessee & Read, P. C., Abingdon, VA, for Defendant.

OPINION AND ORDER
JAMES P. JONES, Chief Judge.
In this criminal case, the defendant, convicted by a jury of possessing child pornography, has filed post-trial motions seeking acquittal and a new trial. For the reasons that follow, I will deny the motions.

I
The defendant Robert Doyle was convicted by a jury of knowingly receiving and knowingly possessing child pornography in violation of 18 U.S.C.A. §§ 2252A(a)(2)(A), (a)(5)(B), and (b)(2) (West Supp.2008) (Counts One and Two), and knowingly transporting child pornography in violation of 18 U.S.C.A. §§ 2252A(a)(1) and (b)(1) (West Supp.2008) (Counts Three, Four, and Five). At trial, the government contended that the defendant had used a desktop computer located in his bedroom to download images of child pornography from the internet. The defendant argued that since other people had had access to the computer, the government did not prove beyond a reasonable doubt that the defendant was the person who had downloaded the images. The defendant also asserted that the government did not meet its burden of proving that the images depicted real children under the age of eighteen.
In his post-trial Motion for a Judgment of Acquittal, the defendant raises these arguments once more, contending that the government presented insufficient evidence for the jury to find beyond a reasonable doubt that the defendant was the person who downloaded the images and that the images depicted real children under the age of eighteen. The defendant also argues that the government did not establish that the Western District of Virginia was the proper venue for the three counts of transporting child pornography.
In his Motion for New Trial, the defendant argues that the testimony of a deceased witness given previously at a bond hearing should not have been admitted at trial under Federal Rule of Evidence 804(b)(1) and the Sixth Amendment's Confrontation Clause because the defendant did not have a similar motive to cross-examine the witness during the bond hearing. The defendant's motions have been briefed and argued and are ripe for decision.

II
The evidence adduced at trial was sufficient for a reasonable jury to convict the defendant beyond a reasonable doubt, and the government presented sufficient evidence that the Western District of Virginia was the proper venue for all counts. Therefore, I will deny the defendant's Motion for a Judgment of Acquittal.
The defendant argues that the government submitted insufficient evidence for a jury to convict him of the crimes charged. Specifically, the defendant claims that there was insufficient evidence that the defendant was the person who downloaded the images of child pornography and that the images depicted real children under the age of eighteen. A conviction must be sustained if, viewed in the light most favorable to the government, there is substantial evidence to support it. Glasser v. United States, 315 U.S. *340 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942), superseded by statute on other grounds as recognized in Bourjaily v. United States, 483 U.S. 171, 177-78, 107 S.Ct. 2775, 97 L.Ed.2d 144 (1987). I must determine "whether any rational trier of fact could have found the essential elements of the crime charged beyond a reasonable doubt." United States v. Capers, 61 F.3d 1100, 1107 (4th Cir.1995) (internal quotation marks and alternations omitted).
The government presented sufficient evidence that the defendant was the person who downloaded the images of child pornography. Other individuals did testify to having used the computer on which the images were found. However, the twenty-six offensive images admitted into evidence were all created and accessed exclusively between 6:21 p.m. and 1:53 a.m., and twenty-four of those images were only accessed after 9:18 p.m.[1] The three emails sent from "bobby"  to [2] or  with images of child pornography attached were time marked 9:02 p.m., 9:40 p.m., and 9:41 p.m.[3] The computer was located in the defendant's bedroom, evidence that he was the most likely person to have had access to the computer late at night. A jury verdict may be based in whole or in part on circumstantial evidence, Holland v. United States, 348 U.S. 121, 140, 75 S.Ct. 127, 99 L.Ed. 150 (1954), and this evidence was sufficient for the jury to conclude the defendant was the person accessing and transporting the images.
The government introduced the pornographic images as the only evidence that those images depicted real children under the age of eighteen, but such evidence was sufficient. Under Ashcroft v. Free Speech Coalition, 535 U.S. 234, 251-56, 122 S.Ct. 1389, 152 L.Ed.2d 403 (2002), pornographic images of "virtual" children are protected free speech. The government therefore had the burden to prove beyond a reasonable doubt that the images in this case depicted real children. Although the Fourth Circuit has yet to rule upon the issue, other circuits have concluded that images themselves may be sufficient evidence for a jury to conclude that real children are depicted. United States v. Salcido, 506 F.3d 729, 733-34 (9th Cir. 2007); United States v. Rodriguez-Pacheco, 475 F.3d 434, 437 (1st Cir.2007); United States v. Irving, 452 F.3d 110, 121-22 (2d Cir.2006); United States v. Farrelly, 389 F.3d 649, 654 & n. 4 (6th Cir.2004), abrogated on other grounds by United States v. Williams, 411 F.3d 675, 678 n. 1 (6th Cir.2005); United States v. Slanina, 359 F.3d 356, 357 (5th Cir.2004); United States v. Kimler, 335 F.3d 1132, 1142 (10th Cir.2003); United States v. Deaton, 328 F.3d 454, 455 (8th Cir.2003). The jury is capable of distinguishing for itself whether a child depicted in an image is real or virtual. Salcido, 506 F.3d at 733-34. Based on my review of the images in this case, I find that these images alone were *341 sufficient evidence for the jury to conclude that the images depicted real children under the age of eighteen.[4]
The government also presented sufficient evidence that all of the offenses, including the three counts of transporting child pornography, occurred in the Western District of Virginia. Evidence at trial showed that the defendant resided in a house in Rose Hill, Virginia, which is in this district, from August 2003 to January 2004. The defendant's niece testified that she had visited the defendant's residence at least twice per week from August to December 2003, and that there had been a black Dell computer located in the defendant's bedroom during that time period. This testimony was corroborated by Fred Rouse, an investigator for the Lee County Sheriff's Department. He testified that officers had seized a black Dell computer from the defendant's bedroom on January 9, 2004, during the execution of a search warrant at the defendant's residence. It was on this computer, identified by Investigator Rouse during his testimony at trial, that the offending images were found. Special Agent Chris Hoy, who forensically examined the black Dell computer, testified that the operating system had been registered to "Bobby Doyle" in May 2003.
I find that when viewed in the light most favorable to the government, there was sufficient evidence from which the jury could conclude that images of child pornography were transported, received, and possessed by the defendant on the black Dell computer in his residence in this judicial district during the time period in question. Thus, the defendant's Motion for a Judgment of Acquittal will be denied.

III
I will also deny the defendant's Motion for New Trial because the testimony of the unavailable witness was properly admitted at trial. The defendant argues that a new trial should be granted because the admission of prior testimony of a deceased witness violated Federal Rule of Evidence 804(b)(1) and the defendant's Sixth Amendment right to confront witnesses against him. This court has the discretion to grant a new trial where the interests of justice so require. Fed. R.Crim.P. 33(a); United States v. Mitchell, 602 F.2d 636, 639 (4th Cir.1979).
The Sixth Amendment's Confrontation Clause provides that, "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." U.S. Const. amend. VI. Prior testimony may therefore only be admitted if the declarant is unavailable and the defendant had a prior opportunity for cross-examination. Crawford v. Washington, 541 U.S. 36, 68, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). Federal Rule of Evidence 804(b)(1) permits the admission of prior testimony of an unavailable witness only where the "party against whom the testimony is now offered. . . had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination." "`[S]imilar motive' does not mean `identical motive.'" United States v. Salerno, 505 U.S. 317, 326, 112 S.Ct. 2503, 120 L.Ed.2d 255 (1992) (Blackmun, J., concurring). "[T]he similar-motive inquiry . . . is inherently a factual inquiry, depending in part on the similarity of the underlying issues and on the context of the . . . questioning." Id.
*342 Silas Glass testified at the defendant's bond hearing before a magistrate judge of this court on March 9, 2007. The issues at the hearing included whether the defendant posed a danger to the community and whether conditions of release might reasonably assure his appearance at trial. One factor the court was required to consider was the weight of the evidence against the defendant. 18 U.S.C.A. § 3142(g)(2) (West 2000 & Supp.2005). Doyle's attorney called Glass to discuss the defendant's work history with a road construction and highway maintenance company, Glass Machinery Excavation. Glass testified that the defendant had been hired initially in 1991 as a truck driver and a part-time mechanic. Over the previous three or five years, however, the defendant had been employed primarily to look after Glass and his wife, who both had physical ailments. The defendant drove Glass to pick up parts for the business. He took Glass or his wife grocery shopping every Friday, and occasionally drove Glass to doctors' appointments. He sometimes came by Glass's home in the evening to see if Glass needed anything. The defendant also assisted with whatever needed to be done at the company, such as driving trucks, performing mechanical work, and running errands.
During cross-examination by the government, Glass revealed that although the defendant had generally worked at the store from 8:00 a.m. to 5:00 p.m. five days per week, he would leave during the day to run errands as needed. Glass estimated that the defendant had spent ten to fifteen hours per week running personal errands for Glass and his wife.
Unfortunately, Glass passed away prior to the commencement of the defendant's trial and was therefore unavailable to testify. During the trial, the defendant called Glass's son and daughter-in-law to testify in support of his alibi defense. Responding to some discrepancies between their testimony and Glass's prior testimony, the government cross-examined both witnesses with portions of Glass's testimony regarding the defendant's work history and duties. During its rebuttal case, I also permitted the government to read portions of Glass's testimony to the jury over the defendant's objection.
The defendant argues that the testimony of Glass was inadmissible because the defendant did not have a similar motive to examine Glass on direct and redirect during the bond hearing as he would have had during cross-examination at trial. I find that the defendant's motive for direct examination and redirect examination at the bond hearing, although not identical, was substantially similar to what his motivation would have been during cross-examination at trial. Thus, the testimony of Glass was properly admitted.
The main issue at the bond hearing was the safety of the community if the defendant were released pending trial. See United States v. Doyle, No. 2:07CR00004, 2007 WL 1097844, at *1 (W.D.Va. Apr. 11, 2007) (upholding the magistrate judge's detention order because no condition of release would ensure the safety of the community). On direct examination, Glass's testimony showed that the defendant was working and was accounted for during most weekdays. The government's cross-examination of Glass revealed that the defendant was, in fact, not accounted for during large portions of the day. The clear implication was that during those hours, the defendant could engage in criminal behavior, such as receiving and transporting child pornography. The defendant had a fair opportunity to examine Glass on direct and redirect, if desired. If the defendant could have been accounted for during all hours of the day and night while *343 employed by Glass Machinery, it would have been to the defendant's advantage to bring forth that testimony from Glass during the bond hearing. If Glass's testimony about the defendant's general working hours and duties was false or the result of misrecollection or confusion, the defendant had a full and fair opportunity to examine Glass to bring the matter to the court's attention.
If Glass had been available to testify at trial, the defendant presumably would have liked to cross-examine him regarding the number of hours the defendant worked each day in Glass's presence, the amount of time the defendant spent running errands each week, and to what extent the defendant worked in the evenings. However, the defendant had a motive and opportunity to question Glass on these issues during direct and redirect examination at the bond hearing. At the bond hearing, the defendant's daily whereabouts made it more or less probable that he would be a danger to the community during pre-trial release and was probative as to whether he was able to commit the crimes charged and whether he would have the opportunity to commit additional crimes upon release. At trial, the defendant's daily whereabouts made it more or less probable that he had a consistent alibi. Although the underlying issues at the bond hearing and at trial were not identical, they were sufficiently similar so that the defendant had an adequate opportunity to confront and examine the witness.
Federal courts have admitted prior testimony from preliminary hearings, even though such hearings are intended merely to show probable cause, not proof of guilt beyond a reasonable doubt. Glenn v. Dallman, 635 F.2d 1183, 1187 (6th Cir. 1980) ("The fact remains that while petitioner's counsel did not exercise her opportunity to fully cross examine the witness, she still had that opportunity."); United States ex rel. Haywood v. Wolff, 658 F.2d 455, 461 (7th Cir. 1981) (noting that the opportunity for cross-examination afforded at the preliminary hearing need not be identical to that required at trial) contra People v. Fry, 92 P.3d 970, 980 (Colo.2004) (concluding that admission of prior testimony elicited during a state court preliminary hearing violated the defendant's Sixth Amendment right to confront witnesses against him).
Courts have also admitted prior testimony elicited during other types of hearings, such as a bond hearing, State v. Douglas, 310 Or. 438, 800 P.2d 288, 293 (1990) (finding that the defendant had a similar motive to cross-examine the unavailable witnesses during a prior security release hearing), a sanity hearing, McMurrey v. State, 145 Tex.Crim. 439, 168 S.W.2d 858, 861 (1943), a committal hearing, Barnes v. State, 256 Ga. 370, 349 S.E.2d 387, 388 (1986), a suppression hearing, United States v. Poland, 659 F.2d 884, 896 (9th Cir.1981); Williams v. State, 214 Ga.App. 280, 447 S.E.2d 676, 678 (1994), an adult certification hearing, Coffin v. State, 850 S.W.2d 608, 610-11 (Tex.App.1993), an extradition hearing, Prater v. State, 148 Ga. App. 831, 253 S.E.2d 223, 229 (1979), and a grand jury proceeding where the testimony was later sought to be admitted by the defendant, United States v. McFall, 558 F.3d 951, 963 (9th Cir.2009) (noting that Rule 804(b)(1) "does not require an identical quantum of motivation").
The defendant cites People v. Brown, 374 Ill.App.3d 726, 312 Ill.Dec. 589, 870 N.E.2d 1033 (2007), in support of his contention that a defendant's motive to cross-examine a witness at a bond hearing is not sufficiently similar to the motive during trial. But Brown is clearly distinguishable. In that case, the sole issue before the court during the prior hearing was *344 whether the defendant had violated a condition of release. The court inappropriately expanded the scope of the bond violation hearing by permitting the government to question the witness about the underlying offense, and the defendant had no motive to cross-examine the witness regarding those facts since they were not at all relevant to the issue at hand. The Illinois court therefore held that the testimony of the witness from the bond violation hearing was impermissibly admitted at the defendant's subsequent trial. Id. at 1039.
Other cases cited in Brown are also distinguishable on the facts. See People v. Vera, 153 Mich.App. 411, 395 N.W.2d 339, 341 (1986) (affirming trial court's exclusion of testimony from a preliminary hearing where the government did not have a motive to cross-examine the witness regarding a statement she made while answering questions relevant only to the proper amount of bond); Dickson v. State, 281 Ga.App. 539, 636 S.E.2d 721, 724 (2006) (concluding that the trial court erred in admitting an audiotape of the deceased witness's interview with an investigator, finding that it was not adequate that the defendant had an opportunity to cross-examine that witness during a bond hearing).
"[T]he similar-motive inquiry . . . is inherently a factual inquiry, depending in part on the similarity of the underlying issues and on the context of the . . . questioning." Salerno, 505 U.S. at 326, 112 S.Ct. 2503. The facts in this case show that the defendant had a similar motive to question Glass about the defendant's working hours at both the bond hearing and the subsequent trial. Therefore, Glass's prior testimony was properly admitted under Federal Rule of Evidence 804(b)(1), and its admission did not violate the Sixth Amendment's Confrontation Clause.
Even if the testimony had been admitted in error, it would not be in the interests of justice to grant the motion for a new trial.[5] First, the jury had already heard about the discrepancies between Glass's prior testimony and the testimony of his son and daughter-in-law at trial through the government's proper cross-examination of those witnesses. The admission of Glass's testimony from the bond hearing was therefore cumulative of other admissible evidence on that issue.
Second, any dispute about the defendant's duties at Glass Machinery was minor and could not have substantially swayed the jury's verdict. Glass's son testified that Glass Machinery performed snow removal for the Virginia Department of Transportation, and that the defendant had assisted with snow removal at night. The defendant's work records, which were admitted into evidence, specified the dates on which he performed snow removal and the total number of hours he worked on each date, but did not specify the time of day work was completed. Glass's son indicated that he could have determined the *345 time of day the work was completed by consulting "[t]he daily field sheet," but that he did not bring that information to court and could not say what time the defendant's work was conducted. (Trial Tr. vol. 3, 6, Dec. 10, 2008.) Glass's son also testified that the defendant had occasionally assisted Glass with personal errands during evening hours, and that Glass and the defendant had taken several overnight fishing trips together on weekends, but he did not specify which weekends.[6]
Although there were some differences between Glass's testimony at the bond hearing and his son's testimony at trial, the most important fact relevant to the defendant's alibi defense was not in dispute: the defendant occasionally worked during evening hours.[7] The jury heard a portion of Glass's testimony where he affirmatively stated that this was so. (Trial Tr. vol. 1, 9, Dec. 10, 2008) ("A lot of times he sees I get home all right, he comes home in the evening after I get home to see if I need anything.").
On the other hand, there was no direct evidence that the defendant was working in the evening or was out of town on a fishing trip on the specific dates that the offending images were accessed. Considered in its totality, along with all of the other evidence in the case, Glass's testimony could not have substantially swayed the jury's conclusion that the defendant was available to access and email the images of child pornography during evening and late-night hours on the relevant dates.
Third, as described above, the government presented substantial evidence that the defendant was the person who emailed, downloaded, and accessed the images of child pornography.

IV
For the foregoing reasons, it is hereby ORDERED that the defendant's Motion for a Judgment of Acquittal and Motion for New Trial are DENIED.
NOTES
[1]  The images admitted into evidence included time stamps for when they were created, modified, last written, and last accessed. Testimony at trial showed that the computer on which the images were found was set to Central Standard Time, which was reflected in the time stamps. The times listed here have been converted into Eastern Standard Time.
[2]  Evidence at trial showed that the email address bobbydva@yahoo.com was registered to Mr. Bobby Doyle. (Gov't Ex. 15.) The Yahoo! account for bobbydva@yahoo.com listed rfdj 1@hotmail.com as an alternate email address. (Id.) The government argued that the defendant emailed the images to himself for safekeeping.
[3]  The time stamps on the email messages reflected the correct hour in Eastern Standard Time.
[4]  The jury in this case was instructed, "It is not necessary that the Government introduce direct evidence of the age of the persons depicted and the jury may consider all of the evidence in the case, including the visual depictions themselves, in determining whether the persons depicted were minors." (Jury Instruction No. 11.)
[5]  "Any error . . . that does not affect substantial rights must be disregarded." Fed. R.Crim.P. 52(a). A Confrontation Clause violation may be found harmless. United States v. Banks, 482 F.3d 733, 741 (4th Cir.2007) (citing United States v. Khan, 461 F.3d 477, 496 (4th Cir.2006)). The Fourth Circuit will find an error harmless if it is "able to say with fair assurance, after pondering all that has happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error." Id. at 741-42 (quoting United States v. Brooks, 111 F.3d 365, 371 (4th Cir.1997)). See id. at 742 (finding Crawford error harmless after considering importance of erroneously admitted testimonial evidence and strength of government's case); Khan, 461 F.3d at 496 (same); United States v. Bryant, No. 06-4977, 2008 WL 5070972, at *5 (4th Cir. Nov. 25, 2008) (unpublished) (same).
[6]  Glass's daughter-in-law also testified that Glass and the defendant had taken weekend fishing trips, but she could not point to which weekends.
[7]  This was relevant because, as described above, all of the twenty-six offending images were accessed between 6:21 p.m. and 1:53 a.m., and all but two were emailed or accessed after 9:02 p.m.