137 B.R. 73 (1992)
In re Michael James McCLANAHAN and Jodi Valicia McClanahan, Debtors.
Bankruptcy No. 91-03706-8P3.
United States Bankruptcy Court, M.D. Florida, Tampa Division.
February 24, 1992.
Michael Barnett, Tampa, Fla., for debtors.
*74 Chris Larimore, Bradenton, Fla., for Trustee.

ORDER ON MOTION FOR RECONSIDERATION
ALEXANDER L. PASKAY, Chief Judge.
This Court rarely writes detailed opinions when ruling on Fee Applications filed by attorneys representing debtors in Chapter 13 cases. However, because the Motion For Reconsideration filed by the Law Firm of Isaak and Barnett (Law Firm) appears to be designed as a test case and a challenge of this Court's general approach toward fee applications in Chapter 13 cases, this Court is satisfied that it is proper to set forth some preliminary remarks before considering the relevant portion of the record in this particular case.
First, this Court has in the past and intends in the future to reject outright the proposition that the ruling on the Fee Application should be based on testimony of experts, and the role of the Judge considering the application is merely that of a potted plant, and if the expert testimony is unrebutted, which is almost always the case, the Judge is relegated to accept the unrebutted testimony regardless of how outrageous an amount of fees is sought by the attorney involved. This Court is unwilling to accept this proposition for the following reasons. First, under the well-recognized rules of evidence, the justification for expert testimony is to assist a trier of fact to understand the evidence. Weinstein, 3 Evidence ¶ 702(01) at 702-7. The Notes of the Advisory Committee on Rule 704, the Rule which deals with expert testimony, states that the term "trier of fact" is generally understood to mean the jury, e.g., untrained lay people, and does not include a Judge who is a trained professional.
The justification to consider opinion evidence from experts exists if the trier of fact is in need of assistance to help to understand an unfamiliar subject, without which assistance the trier of fact would be unable to understand the highly esoteric, technical and scientific concepts which are beyond his or her ken. Of course, it requires no elaborate discussion to point out that what is a reasonable fee to be allowed to an attorney who represents debtors in routine Chapter 13 cases is not a highly esoteric, technical, or scientific subject which a bankruptcy judge would not be able to comprehend without help and assistance of an "expert" to explain the intricacies and complex legal principles which govern allowances to attorneys representing debtors in Chapter 13 cases.
Second, if the expert testimony on the subject of what is a reasonable fee would be binding on the Court because it is unrebutted, § 329 of the Bankruptcy Code would be totally meaningless and unnecessary. Section 329 of the Bankruptcy Code provides that the Court may re-examine the fee charged, or to be charged in contemplation of bankruptcy, by an attorney, and if the Court finds that the fee exceeds the reasonable value of the services rendered, the Court may order a disgorgement. This Section is merely a restatement of § 60(d) of the Bankruptcy Act of 1898. Neither § 60(d) of the Bankruptcy Act of 1898 nor § 329 of the Bankruptcy Code requires that a party of interest seek a reexamination of the fee charged or to be charged; instead these Sections place the burden on the bankruptcy judge to make an independent determination of what is a reasonable fee charged or sought to be charged by a debtor's attorney. Thus, it is evident that a judge is not handcuffed and compelled to swallow the so-called "expert testimony" simply because such testimony is unrebutted.
Under the Bankruptcy Act of 1898, the "principle of economy," which was designed to conserve assets of the estate, was a force in determining attorney compensation in bankruptcy cases. The "principle of economy" did not compare the fees earned by bankruptcy practitioners with practitioners in other areas of the law, and there was concern that this resulted in good attorneys avoiding the practice of bankruptcy law. See In re Liberal Market, Inc., 24 B.R. 653, 657 (Bankr.S.D.Oh 1982).
Congress rejected the "principle of economy" in determining fees, in part because *75 of the belief that attorneys and professionals serving in a case under Title 11 should be compensated at the same rate that other professionals would be compensated for performing comparable services in cases other than those under Title 11. 124 Cong. Rec. H 22,091-2 (Sept. 28, 1978); S 17,408 (Oct. 6, 1978). However, the difficulty in applying the Congressional intention stems from the fact that few services performed in cases under Title 11 are comparable to non-bankruptcy services. For example, in this case, the bulk of the legal services rendered by Barnett consists of motions to value collateral. There is no comparable procedure in non-bankruptcy cases, except possibly some type of related procedure in a foreclosure action. In sum, inasmuch as few services performed in bankruptcy cases are comparable to those performed in non-bankruptcy, it is difficult to determine a proper fee award based on the comparison Congress suggested.
In 1974, the factors to be considered by Courts when making fee awards was enunciated by the Fifth Circuit Court of Appeals in Johnson v. George Highway Express, Inc., 488 F.2d 714 (5th Cir.1974). These factors were made applicable to bankruptcy cases in Matter of First Colonial Corp. of America, 544 F.2d 1291 (5th Cir.1977), and still apply when determining the appropriate fee for services rendered in bankruptcy cases. One of the factors in Johnson involves taking into consideration what is the reasonable rate charged by other attorneys in the community with similar levels of experience performing similar services in the community. The lodestar principle is also used by courts when determining a proper fee award. Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 1939, 76 L.Ed.2d 40 (1983). See also In re Port Royal Timber Co., 105 B.R. 72 (Bankr.S.D.Ala 1989). The lodestar principle is based on multiplying the reasonable time spent rendering services by a reasonable rate. When applying the lodestar principle, this Court notes that the time spent for services refers to legal services, and not clerical services.
Having stated the foregoing general principles, it is appropriate in turn to consider the Motion for Reconsideration filed by the Law Firm. The original Application For Allowance of Fees filed by the Law Firm sought $1,876.00 based on 16.3 hours of services rendered by Michael Barnett (Barnett) and costs incurred on behalf of these Debtors. In the Supplement to the Application, the Law Firm sought an additional $2,070.00 based on an additional 13.3 hours of services, for a total fee award of $4,636.00. According to the schedule submitted with the Supplemental Application, this represents 4.8 hours of services rendered by Malka Isaak (Isaak) billed at an hourly rate of $200.00, and 23.3 hours of services rendered by Barnett billed at an hourly rate of $150.00. In addition, D.M. and D.H., identified as paralegals, billed for 3.4 hours and .7 hours respectively for services rendered at the rate of $40.00 for D.M. and $50.00 for D.H.
Mr. Barnett, who graduated from law school five years ago, charges an hourly rate of $150.00. While he appears to be a partner in the two-person Law Firm of Isaak and Barnett and handles several Chapter 13 cases, in light of his background and experience, his hourly rate is too high. In this Court's judgment, he certainly does not merit charging the rate other attorneys charge in this community for representing parties in major Chapter 11 cases involving millions of dollars and at times thousands of creditors, unlike this Chapter 13 case which involves only eleven creditors. This Court has pending before it several Chapter 11 cases, commonly referred to as "mega cases," i.e., Hillsborough Holdings, with its 32 subsidiaries; Bicoastal Corporation f/k/a The Singer Company; Koger Properties, Inc.; and Royster Company. All of these cases, in which some of the top bankruptcy practitioners are involved, include complex legal issues, thousands of creditors, and millions of dollars in claims. Very few of the local attorneys involved in these "mega cases" charge an hourly rate as high as $200.00, the rate charged by Isaak, and few of the associate attorneys with only five years of legal experience charge $150.00, the rate charged by Barnett. It should also be noted *76 that the services rendered in these "mega cases" require an attorney to practice on a much more sophisticated level than that which is required in a routine Chapter 13 case.
A review of the record in this case reveals that Barnett filed five Motions to Value Collateral, one Motion to Avoid Lien and one Objection to Claim. Specifically, Barnett filed a Motion to Value Collateral of Transouth, as well as an Amended Motion to Value Collateral of Transouth. Transouth filed a Response to the Amended Motion to Value Collateral, and this Court entered an Order valuing the collateral after a hearing. Barnett also filed a Motion to Value Collateral of General Motors Acceptance Corporation (GMAC), and this Court entered an Order granting the Debtors' Motion, inasmuch as GMAC filed a Response indicating they had no objection to the valuation asserted by the Debtor. The Debtor filed two identical Motions to Value Collateral of American General, and a Motion to Withdraw that Motion. Thereafter, the Court entered an Order denying the Motion to Value Collateral of American General as moot.
Barnett also filed a Motion to Avoid Lien, which Motion was granted, ex parte, and an Objection to the Claim of the IRS. After the Objection to the Claim of the IRS was filed, the IRS filed an Amended Claim to which the Debtors did not object. Thus, this Court entered an Order sustaining the Debtors' Objection to other Claim of the IRS as moot. A review of the Motions and the Objection filed by Barnett reveals that few of these matters were contested, and all are routine matters in a Chapter 13 case. None of these Motions or the Objection required extensive legal research or required great legal acumen. Inasmuch as the Motions filed in this case are nearly identical to those filed in hundreds of Chapter 13 cases, this Court finds that they are almost boilerplate documents which easily could have been produced by paralegals at a much lower hourly rate, and merely verified by the attorney for accuracy.
This Court has reviewed the claims file in this Chapter 13 case and finds that 11 claims, two of which were duplicates, were filed. The allowed amount of several of the secured claims was determined by valuation Orders, most of which were entered with no opposition. The remainder of the secured claims were allowed as filed because the Debtors had no objection to these claims.
The Court has reviewed the Schedule of Services attached to the Supplement to the Fee Application where Barnett seeks fees for an additional 13.3 hours spent rendering service for these Debtors. This Court notes that the time period covered by the Supplemental Fee Application overlaps the time period which was detailed in the first Fee Application. There is no explanation for this time overlap, and the Court cannot help but ponder whether the Supplemental Fee Application was created, in part, to simply bolster the original Fee Application and to further justify the exorbitant fee award sought in this case. The Supplemental Fee Application includes 4.8 hours spent by Isaak, 7 hours spent by Barnett, and 1.5 hours spent by D.M., the paralegal.
The 4.8 hours allegedly spent by Isaak were all spent in connection with the Motion for Rehearing on Fees. This Court notes that compensation for time spent defending a fee application on appeal has been disallowed on the grounds that it did not constitute a service reasonable and necessary to the administration of the estate, and this Court can see no reason why time spent on a Motion for Rehearing of a fee award should be accorded different treatment. See Grant v. George Schumann Tire & Battery Co., 908 F.2d 874, 882-83 (11th Cir.1990), citing, In re Temple Retirement Community, Inc., 97 B.R. 333, 338 (Bankr.W.D.Tex.1989). Isaak had a 1.5 hour conference with L. Miller regarding hearing on Fee Application; however, this Court has no idea who L. Miller is and what his connection is to this case. Isaak also had conferences totalling 1.9 hours with Robert Vaughn and Ian Horn, the attorneys called as "expert witnesses" to explain this Fee Application during the Motion for Rehearing. Finally, Isaak billed 1.4 hours to prepare for and attend the *77 hearing on the Fee Application. This Court finds little justification for Isaak to spend nearly 5 hours in conference with attorneys regarding the Law Firm's Fee Application, especially when the testimony of these "experts," as noted earlier, was not necessary to enable this Court to understand what is a reasonable fee in a Chapter 13 case.
In support of the Supplemental Application, the Law Firm presented two "experts," Mr. Ian Horn, an attorney who has an extensive bankruptcy practice, and Mr. Robert Vaughn, who is also a practicing attorney, although his appearances before this Court have been rare. Mr. Vaughn does not profess to be an expert in bankruptcy, and it appears that his practice is primarily in the area of real estate law. Mr. Vaughn was admitted to practice law in 1986, and Mr. Horn in 1985. Both "experts" stated that in their expert opinion, the fee sought by the Law Firm is more than reasonable.
This Court is constrained to reject the testimony of these experts for several reasons. First, the testimony of Mr. Horn is obviously self-serving because if it is accepted, it certainly would be used by Mr. Horn as a precedent when his law firm files a fee application in Chapter 13 cases. The testimony of Mr. Vaughn lacks persuasive force because as noted earlier, his practice is basically limited to representing creditors in foreclosure matters in nonbankruptcy forums. This leaves for consideration the ultimate question, which is what is the reasonable amount to be awarded to the Law Firm in this Chapter 13 case.
The Law Firm also filed a Memorandum of Law on Attorney Fees, although no such Memorandum was requested by this Court, and this Court assumes that any attorney who practices regularly before this Court is aware that the policy of this Court is to not accept an unsolicited Memorandum of Law. Nevertheless, a review of the Memorandum reveals that the Law Firm relies heavily on the principle that the reasonableness of attorney's fees is to be determined by a bankruptcy court by considering Florida Law, which provides that attorneys are entitled to be compensated at the rate agreed upon in their contract. Solar Research Corporation v. Parker, 221 So.2d 138, 142 (Fla.1969). Of course, it is quite obvious that Florida case law is not appropriate authority to be considered by this Court when determining what is a reasonable fee charged by an attorney representing a Chapter 13 debtor. The Law Firm also urges that fee enhancement should be considered if the case is successful. See Norman v. Housing Authority of City of Montgomery, 836 F.2d 1292 (11th Cir. 1988). This Court has difficulty proclaiming that this Chapter 13 case, which includes only eleven secured creditors, is a success by any stretch of the imagination which merits fee enhancement.
It cannot be seriously disputed that to permit an attorney to charge nearly $5,000.00 for representing a Chapter 13 debtor whose Chapter 13 Plan is designed solely to cure arrearages on the home mortgage and to pay secured creditors in full, and to pay at most 20% to unsecured creditors, or a maximum of approximately $1,000.00 on unsecured claims estimated at $5,000.00, would be less than reasonable, especially when there is no extensive, complex, serious litigation in the case. According to the American Bankruptcy Institute National Report on Professional Compensation in Bankruptcy Cases (G.R. Warner rep.1991), the mean fee maximum in Chapter 13 cases is $845.00, and both the median fee and the mode fee are $750.00. One quarter of the attorneys surveyed reported an average fee in routine Chapter 13 cases of $600.00 or less, and 42% of the attorneys reported a maximum fee in Chapter 13 cases of $750.00 or less. These figures lead the Court to conclude that the fees sought in this Chapter 13 case are grossly excessive.
In sum, this Court has no doubt that this was nothing but a routine Chapter 13 case, and involved nothing but Motions that could have been easily prepared by a paralegal and one Objection that has been used previously in hundreds of Chapter 13 cases.
As noted earlier, this case involved no contested litigation. Most of the issues were determined by agreement, or by default. *78 Thus, even if the hours stated were actually spent by Barnett and Isaak, a Chapter 13 case of this nature certainly does not merit an award of $4,626.00. Based on the following, the hourly rate of $150.00 charged by Barnett, based on his experience and compared with the hourly rate charged by other attorneys in the country, should not exceed $135.00. Further, the hourly rate of $200.00 charged by Isaak is equally inflated, especially when compared with the hourly rate charged by other attorneys in this community with substantially greater experience and who deal with much more complex issues, and should not be more than $175.00. Applying the lodestar principle in multiplying these amounts with the time reasonably spent on the services rendered, none of which really required any special skill or extensive research, the fee to be allowed in this Chapter 13 case shall not be more than $1,500.00.
Accordingly, it is
ORDERED, ADJUDGED AND DECREED that the Motion for Reconsideration be, and the same is hereby, granted and the previous fee award of $800.00 is amended to provide that the Law Firm of Isaak and Barnett is awarded fees in this Chapter 13 case in the amount of $1,500.00.
DONE AND ORDERED.


        In the United States Court of Federal Claims
                                 OFFICE OF SPECIAL MASTERS
                                          No. 15-1461V
                                      Filed: March 2, 2016
                                          Unpublished

****************************
ODOLPHINE NORED,                          *
                                          *
                     Petitioner,          *      Ruling on Entitlement; Concession;
                                          *      Influenza (“Flu”) Vaccine; Shoulder
                                          *      Shoulder Injury Related to Vaccine
SECRETARY OF HEALTH                       *      Administration (“SIRVA”); Special
AND HUMAN SERVICES,                       *      Processing Unit (“SPU”)
                                          *
                     Respondent.          *
                                          *
****************************
Paul Brazil, Muller Brazil, LLP, Dresher, PA, for petitioner.
Darryl Wishard, U.S. Department of Justice, Washington, DC, for respondent.

                                    RULING ON ENTITLEMENT 1

Dorsey, Chief Special Master:

        On December 3, 2015, Odolphine Nored (“petitioner”) 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 alleges that as a result
of receiving an influenza (“flu”) vaccine on October 21, 2014, she suffered an injury to
her left shoulder. Petition at 1-3. The case was assigned to the Special Processing
Unit (“SPU”) of the Office of Special Masters.

       On March 1, 2016, respondent filed her Rule 4(c) report in which she concedes
that petitioner is entitled to compensation in this case. Respondent’s Rule 4(c) Report
at 1. Specifically, respondent concluded that petitioner’s alleged injury is consistent with
shoulder injury related to vaccine administration (“SIRVA”), and that it was caused-in-
fact by the flu vaccine she received on October 21, 2014. Id. at 3. Respondent further
stated that she did not identify any other causes for petitioner’s SIRVA, and the records

1 Because this unpublished ruling contains a reasoned explanation for the action in this case, the
undersigned intends to post it on the United States Court of Federal Claims' website, in accordance with
the E-Government Act of 2002. 44 U.S.C. § 3501 note (2012)(Federal Management and Promotion of
Electronic Government Services). 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, the undersigned agrees that the identified material fits
within this definition, the undersigned 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 (2012).
show that she has suffered the sequela of this injury for more than six months. Id.
Therefore, based on the record as it now stands, petitioner has satisfied all legal
prerequisites for compensation under the Act. Id. at 4.

     In view of respondent’s concession and the evidence of record, the
undersigned finds that petitioner is entitled to compensation.

IT IS SO ORDERED.

                                  s/Nora Beth Dorsey
                                  Nora Beth Dorsey
                                  Chief Special Master

                                            2


                United States Court of Appeals
                            For the Eighth Circuit
                       ___________________________

                               No. 13-2533
                       ___________________________

                                  Felecia Channell

                       lllllllllllllllllllll Plaintiff - Appellant

                                           v.

    Carolyn W. Colvin, Acting Commissioner, Social Security Administration

                      lllllllllllllllllllll Defendant - Appellee
                                      ____________

                      Appeal from United States District Court
                 for the Eastern District of Arkansas - Jonesboro
                                  ____________

                            Submitted: April 18, 2014
                              Filed: June 25, 2014
                                  [Published]
                                 ____________

Before LOKEN and MURPHY, Circuit Judges, and SIPPEL, District Judge.1
                          ____________

PER CURIAM

      1
       The Honorable Rodney Sippel, United States District Judge for the Eastern
District of Missouri, sitting by designation.
       Felecia Channell appeals the district court’s order affirming the denial of her
application for supplemental security income benefits (SSI). Channel alleged
disability since January 2010 based on a mental impairment. After a June 2011
hearing, an Administrative Law Judge (ALJ) denied Channell’s application for SSI
benefits. The Appeals Council declined to review the ALJ’s decision, and the district
court affirmed. Upon de novo review, see McDade v. Astrue, 720 F.3d 994, 997-998
(8th Cir. 2013) we reverse and remand.

      Channell was born in 1986 and was 24 years old at the time of the ALJ’s
decision. She completed the eleventh grade getting all As. However she was taking
special education classes in all substantive education courses, including English,
math, biology, and history. Channell has never held a job. She can read “little”
words and write but cannot be sure she gets the correct change when she buys
something at a store. She lives in a house with her four children ages 5, 4, 2, and 1.
She receives food stamps and relies on financial support from her family. With
regular assistance from her family, Channell is able to care for her children and does
her own housework. When school is in session her kids are placed in daycare. If
Channell goes shopping she is able to determine what groceries she needs and buys
them herself. She got her driver’s license (after four attempts at the written test) when
she was 23 years old but does not own a car and does not drive often.

       Channell has no physical impairments. Her disability claim is based on her
mental limitations. In 1999, when Channell was 13 years old, she was given an IQ
test, (Wechsler Intelligence Scale for Children - III) which revealed a verbal IQ score
of 58, a performance IQ score of 63, and a full scale IQ score of 56. In January 2006,
when Channell was 19 or 20 years old, she was given a psychological evaluation by
a psychologist, Dr. George DeRoeck. Dr. DeRoeck noted that Channell “was very
slow to respond, gave vague responses, exhibited a flat effect and, in general,
appeared sluggish.” He observed that her speech was clear and effective, though

                                          -2-
“somewhat impoverished,” and that she demonstrated an ability to follow simple
instructions adequately.

       Dr. DeRoeck administered an IQ test (Wechsler Adult Intelligence Scale - III)
which revealed a verbal IQ score of 67, a performance IQ score of 59, and a full scale
IQ score of 61. Dr. DeRoeck noted that these scores were commensurate with the
mildly deficient range. He also opined that, although Channell did not exhibit signs
of exaggeration or malingering, she “exhibited relatively poor motivation and
confidence in her ability, therefore putting forth little effort in the items at hand” and
that she had a “tendency to give up very easily and would easily state ‘don’t know.’”
Dr. DeRoeck stated that these “motivational factors should be kept in mind in
reviewing her test results.” Dr. DeRoeck concluded that Channell’s “overall
intellectual functioning is commensurate with the mildly deficient range.”

       On February 2, 2010, Dr. Winston Brown, M.D., a state agency medical
consultant, completed a mental residual functional capacity assessment based on his
review of Channell’s medical records. Dr. Brown opined that Channell would be able
to perform work where interpersonal contact would be incidental to work performed;
complexity of tasks would be learned and performed by rote; few variables and little
judgment would exist; and supervision required would be simple, direct, and
concrete.

       On January 19, 2010 Channell filed an application for SSI. The Agency denied
Channell’s claim. A hearing before an ALJ was held on June 15, 2011. Channell
tesified about her mental capacity issues and about her daily activities. On August
24, 2011, the ALJ issued his decision denying benefits. The ALJ found that
Channell’s reduced mental function did not meet or equal a listed impairment on the
Social Security Administration’s list of impairments presumed severe enough to
preclude any gainful work. 20 C.F.R. pt. 404, subpt. P, App. 1. The ALJ’s
conclusion was based on discrediting Channell’s 2006 performance IQ score of 59.

                                           -3-
This score would normally deem Channell to be disabled and entitled to benefits
pursuant to 20 CFR Pt. 404, Subpt. P, App. 1. Section 12.05B (a claimant is disabled
when she has a “valid verbal, performance, or full scale IQ of 59 or less”). However,
an ALJ may disregard test scores that are inconsistent with a plaintiff’s demonstrative
activities and abilities as reflected in the record. See Clay v. Barnhart, 417 F.3d 922,
929 (8th Cir. 2005)(“the Commissioner need not rely exclusively on IQ scores, and
that the Commissioner may disregard test scores that are inconsistent with an
applicant’s demonstrated activities and abilities as reflected in the record as a
whole.”). The ALJ found that Channell’s daily activities did not indicate she was
completely unable to work. The ALJ determined that Channel had no exertional
limitations and that she had a residual functional capacity to perform unskilled work.
Based on a vocational expert’s testimony, the ALJ found that Channell could perform
jobs as a poultry hanger, a machine feeder, or a maid / housekeeper.

       In seeking reversal, Channell asks to have this case remanded for an award of
benefits or, alternatively, for proper consideration of her intellectual disability. Our
review of the record reveals that the record is incomplete. It is the ALJ’s
responsibility “to develop the record fairly and fully, independent of the claimant’s
burden to press his case.” Snead v. Barnhart, 360 F.3d 834, 838 (8th Cir. 2004). In
his decision denying Channell benefits, the ALJ stated that he scheduled Channell to
undergo further testing of her intellectual function on August 11, 2011, to be
followed by a Computerized Assessment of Response Bias (CARB), to assess her for
malingering or exaggeration. The ALJ was properly attempting to fully develop the
record by obtaining a current assessment of Channell’s mental functioning. The ALJ
states in his decision that Channell failed to attend her scheduled consultive
evaluation. He uses Channell’s failure to comply as an additional reason to deny
Channell benefits. However, aside from the ALJ’s statement in his decision, the
record does not contain any evidence that Channel was scheduled for further testing.

                                          -4-
       The issue of further testing is not mentioned in the hearing transcript. There
are no letters or other documents in the record which reflect that Channel was
informed she was scheduled for further testing. Based on the record, we are left to
speculate whether Channell or her counsel were notified of the testing. Given the
nature of Channell’s claimed disability, a mental impairment of listing-level severity,
the record should indicate how and when Channell and her counsel were notified.
We should not be required to speculate as to the adequacy of notice of additional
testing or whether there was another reason beyond the claimant’s control that
prevented her attendance at the scheduled testing. Based on the record before us, we
cannot conclude that it has been fully developed.

       As a result, we reverse and remand this matter for further development of the
record on Channell’s mental impairments. The ALJ shall reschedule Channell for an
IQ test and other testing he deems appropriate before ruling on Channell’s claim for
benefits. The record shall contain documentation of the notice regarding the testing
given to Channell and her counsel.
                        ______________________________

                                         -5-


       TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

                                      NO. 03-17-00082-CR

                                 Dylan Scott Garrett, Appellant

                                                 v.

                                  The State of Texas, Appellee

           FROM THE 207TH DISTRICT COURT OF COMAL COUNTY
     NO. CR2016-500, THE HONORABLE R. BRUCE BOYER, JUDGE PRESIDING

                                            ORDER

PER CURIAM

               Appellant filed his notice of appeal on January 31, 2017, and his brief was

originally due on May 10, 2017—about 11 months ago. On May 22, 2017, we sent counsel a

notice that the brief was overdue and advised him that a hearing before the trial court would be

ordered if we did not receive a response on or before June 1, 2017. On May 22, 2017, this Court

sent a notice to appellant’s counsel informing him that appellant’s brief was overdue and that a

failure to file a satisfactory response by June 1, 2017, would result in the referral of this case to

the trial court for a hearing under Rule 38.8(b) of the Texas Rules of Appellate Procedure.

               We abated the appeal on August 22, 2017, and remanded the cause to the district

court for a hearing under Rule 38.8(b) of the Texas Rules of Appellate Procedure. We ordered

the trial court to make appropriate written findings and recommendations, and if necessary, to

appoint substitute counsel who will effectively represent appellant in this appeal. We further
ordered the trial court to order the appropriate supplemental clerk’s and reporter’s records—

including all findings and orders—to be prepared and forwarded to this Court no later than

September 21, 2017.

               Following the hearing, the Comal County District Clerk’s office informed the

Court in October 2017 and again in December 2017 that the findings and orders were not filed

into record. A supplemental reporter’s record was filed on October 9, 2017, indicating that the

trial court held a hearing. The transcript from the hearing indicates that appellant’s counsel was

uncertain about whether appellant wants to pursue his appeal and that appellant was not at the

hearing although his counsel had expected him to be. The trial court indicated that it lacked

sufficient information to make a finding, but it was unclear from the record when the trial court

and appellant’s counsel intended to resolve the issue of whether appellant desires to prosecute

his appeal.

               Accordingly, on February 23, 2018, we reinstated the case to abate it a second

time. We remanded the cause to the trial court for a second hearing under Rule 38.8(b) of the

Texas Rules of Appellate Procedure. For a second time, we ordered the trial court to conduct a

hearing to determine whether appellant desires to prosecute this appeal, and if so, whether

counsel has abandoned this appeal. See Tex. R. App. P. 38.8(b)(2), (3). We again ordered the

trial court to make appropriate written findings and recommendations, and if necessary, to

appoint substitute counsel who will effectively represent appellant in this appeal. We again

ordered the trial court to order the appropriate supplemental clerk’s and reporter’s records—

including all findings and orders—to be prepared and forwarded to this Court no later than

March 26, 2017.

                                                2
               To date, we have received no findings, no recommendations, and no appellant’s

brief. A supplemental reporter’s record was filed on March 26, 2018. The transcript from the

hearing conducted on March 12 indicates that appellant’s counsel remains uncertain about

whether appellant wants to pursue his appeal and that appellant has been placed in SAFP. The

trial court recommended that counsel send appellant another letter and give him two weeks to

respond. Two weeks have since passed.

               Counsel is ordered to file appellant’s brief no later than April 20, 2018. If counsel

has not filed either a brief or a motion to dismiss that complies with Texas Rule of Appellate

Procedure 42.2(a) by that date, counsel will be required to show cause why he should not be held

in contempt of court.

               It is ordered on March 30, 2018.

Before Justices Puryear, Pemberton, and Bourland

                                                  3


628 F.2d 1357
106 L.R.R.M. (BNA) 3076, 111 L.R.R.M. (BNA) 2515,89 Lab.Cas.  P 12,264
N. L. R. B.v.Local 19, Hotel, Motel, Restaurant Employees and BartendersUnion, AFL-CIO
79-7196
UNITED STATES COURT OF APPEALS Ninth Circuit
8/27/80

1
N.L.R.B.

ENFORCEMENT DENIED


960 F.2d 156
NOTICE: Federal Circuit Local Rule 47.8(b) states that opinions and orders which are designated as not citable as precedent shall not be employed or cited as precedent.  This does not preclude assertion of issues of claim preclusion, issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order.Charles B. MARTIN, Petitioner,v.OFFICE OF PERSONNEL MANAGEMENT, Respondent.
No. 91-3494.
United States Court of Appeals, Federal Circuit.
March 16, 1992.

Before PAULINE NEWMAN, ARCHER and PLAGER, Circuit Judges.

1
AFFIRMED.  Fed.Cir.R. 36.


521 F.2d 172
In the Matter of Leonard CRISP, Bankrupt.STATE OF CONNECTICUT, COMMISSIONER OF FINANCE AND CONTROL, Appellant,v.Leonard CRISP, Appellee.
No. 1004, Docket 74-2690.
United States Court of Appeals,Second Circuit.
Argued May 9, 1975.Decided July 31, 1975.

Edward F. Pasiecznik, Asst. Atty. Gen., Hartford, Conn.  (Carl R. Ajello, Atty. Gen., on the brief), for appellant.
William McCoy, Certified Student Intern (Katalin Eve Roth, University of Connecticut Law School Legal Clinic, West Hartford, Conn., on the brief), for appellee.
Before FEINBERG, TIMBERS and VAN GRAAFEILAND, Circuit Judges.
FEINBERG, Circuit Judge:

1
The Commissioner of Finance and Control of the State of Connecticut appeals from an order of Chief Judge T. Emmet Clarie of the United States Court for the District of Connecticut, which confirmed an order of Bankruptcy Judge Saul Seidman and dismissed the Commissioner's petition for review.  The bankruptcy judge found that a debt owed by the bankrupt-appellee Leonard Crisp to the State for treatment at a state psychiatric hospital was dischargeable in bankruptcy.  Appellant Commissioner claims that this debt may not be discharged because it is not provable under the Bankruptcy Act, because the creditor State has not waived its sovereign immunity, and because discharge is barred by the eleventh amendment.  We affirm.

2
* Leonard Crisp filed a voluntary petition for bankruptcy on March 8, 1974.  The attached schedules listed the Connecticut Department of Finance and Control as an unsecured creditor having a non-priority claim of $1,623.65, which was disputed.  This claim arose out of Crisp's hospitalization in Norwich State Hospital.  Under section 17-295 of the Connecticut General Statutes, a patient in such a hospital is billed according to his ability to pay.  In 1970, Crisp became eligible for Social Security Disability benefits, and on the basis of this income the Commissioner billed Crisp for treatment at a low per diem rate from November 1970 to June 1972.1  An "Itemized Statement" rendered April 2, 1974, after the bankruptcy petition was filed, gave Crisp credit for a payment of $70 and showed a balance due of $1,623.65.  The actual cost to the State of Crisp's hospitalization was, of course, much greater, amounting to $10,250.82.

3
In the bankruptcy proceeding, the Commissioner first filed a proof of claim for $1,623.65 and objected to discharge of the scheduled debt in that amount.  Then, after some procedural difficulties not now relevant, the Commissioner also filed an application to have the debt declared nondischargeable, a procedure open to him under 1970 amendments to the Bankruptcy Act, see section 17c(1) of the Bankruptcy Act, 11 U.S.C. § 35(c)(1); Bankruptcy Rule 409.  The bankruptcy judge held that the debt was dischargeable under section 63a(4) of the Bankruptcy Act, 11 U.S.C. § 103(a)(4), as an open account or as an obligation based upon an implied contract.

4
The Commissioner appealed to the district court.  After hearing testimony from an official of the Department of Finance and Control and oral argument, Chief Judge Clarie dismissed the petition for review and confirmed the order of the bankruptcy judge.  This appeal followed.

II

5
Appellant's most substantial argument is based upon the claimed unusual nature of Crisp's obligation to the State under Connecticut law.  We are told that the amount of Crisp's obligation is not certain because if Crisp acquires more assets at some time in the future, he might become liable for the entire actual cost ($10,250.82) of his hospital treatment or at least for some portion of it greater than the $1,693.65 he has been billed.

6
Section 17-295(b) of the Connecticut General Statutes Annotated (1975) provides that if a person receiving care in a state mental hospital "is found unable to pay the per capita cost, (the commissioner of finance and control) shall bill such . . .  person . . .  at a rate which he finds such person . . .  able to pay, provided the total billing . . .  shall not exceed the per capita cost."2  Section 17-295(c) makes the "patient . . .  legally liable . . .  for the support of (himself) in such institution in accordance with his ability to pay.  . . . "  However, another provision, confusingly codified as section 17-295b, imposes upon the patient "who . . .  has received care" the further liability "to reimburse the state for any unpaid portion of per capita cost" in accordance with standards for reimbursement applicable chiefly to public assistance recipients.  These give the State a priority claim over all other unsecured claims against "property of any kind or interest in any property, estate or claim of any kind," which the beneficiary of state aid may acquire, "for the full amount paid to him or in his behalf.  . . ."  C.G.S.A. § 17-83e.  Upon the patient's death, the State has a claim against his estate to the extent it is not needed for support of spouse and children with priority over all unsecured claims, except minimal allowances for medical, funeral, burial, and administrative expenses, for "all amounts paid on behalf of . . .  such person . . .  for which the state has not been reimbursed . . . ."  C.G.S.A. § 17-83g; see also § 17-300.

7
Under section 295(b) and (c), Crisp was billed only $1,693.65 as the amount he was found "able to pay."  The Commissioner argues, however, that section 295b imposes an additional liability, which may arise at any time in the future when Crisp becomes able to pay it, for all or part of the additional unbilled cost of treatment.  Testimony before Judge Clarie revealed that the State has enforced such an obligation "twenty years" after the hospitalization.  The precise amount of the additional claim cannot now be known, according to appellant, because it depends on the patient's future success in acquiring assets.  Therefore, since the claim cannot now be liquidated, it is neither provable nor allowable and cannot be discharged.

8
Section 63a of the Bankruptcy Act lists nine categories of debts which may be proved, including in subdivision (4) those which are founded upon "a contract express or implied."  Provision of care to an incapacitated person is a traditional example of a situation giving rise to quasi-contractual liability.  See Restatement of Restitution §§ 112, 113 (1937).  Although the care here has been provided by the state rather than by a private person, the analogy still seems appropriate.  However, the State has limited the patient's quasi-contractual obligation in sections 295(b) and (c) to the amount he is able to pay.  Even if the source of the liability is regarded as purely statutory, the bankruptcy court in the exercise of its equitable powers could denominate it quasi-contractual to establish provability and dischargeability.  See 3A Collier, Bankruptcy P 63.24, at 1889-91 (14th ed. rev. 1972).  As in Nathanson v. NLRB, 344 U.S. 25, 27, 73 S.Ct. 80, 82, 97 L.Ed. 23 (1952), the liability "is an indebtedness arising out of an obligation imposed by statute an incident fixed by law to the . . .  relationship," here that between hospital and patient.  Crisp's obligation is thus an example of a liability created by statute, which "is quasi contractual in its origin and basis."  Brown v. O'Keefe, 300 U.S. 598, 606, 57 S.Ct. 543, 548, 81 L.Ed. 827 (1937).  "A liability upon quasi contract is one upon an 'implied contract,' and so provable in bankruptcy (section 63a(4), other citations omitted), if the other conditions of allowance are found to be fulfilled."  Id. at 607, 57 S.Ct. at 548.

9
Quoting from State v. Romme, 93 Conn. 571, 107 A. 519 (1919), Connecticut argues that the debt is not provable under section 63a(4) because in providing social services the State "enters into no contract relation."  But characterization of an obligation as quasi-contractual for purposes of discharge in bankruptcy does not establish a "contract relation."  Cf. 3A Collier, Supra.  It merely describes the legal effect of actions the parties have taken for purposes of application of the "implied contract" provision of section 63a(4).  Moreover, in Romme the State had made a claim against the estate of a patient, who had been institutionalized, for the expense of caring for her.  The court made the quoted statement in the context of answering a claim that the statute allowing such a claim impaired the obligation of contract between the patient and the state.  The court's description of the relationship, 107 A. at 520, actually supports our conclusion that the bankruptcy judge here properly characterized the claim as quasi-contractual.3

10
We turn now to the Commissioner's principal point that whatever the basis of Crisp's debt, it is not dischargeable.  The argument is based upon sections 57d and 63d of the Bankruptcy Act, 11 U.S.C. §§ 93(d), 103(d).  The latter provides:Where any contingent or unliquidated claim has been proved, but, as provided in subdivision d of section 57 of this Act, has not been allowed, such claim shall not be deemed provable under this Act.

The former provides, in relevant part:

11
(A)n unliquidated or contingent claim shall not be allowed unless liquidated or the amount thereof estimated in the manner and within the time directed by the court; and such claim shall not be allowed if the court shall determine that it is not capable of liquidation or of reasonable estimation or that such liquidation or estimation would unduly delay the administration of the estate or any proceeding under this Act.  (Emphasis added.)

12
The Commissioner argues that since Crisp's obligation may, under Connecticut law, increase if he acquires windfall assets, the claim is too uncertain to be allowed.  This contention was rejected by the bankruptcy judge on his view that the Connecticut statutes did not subject Crisp to possible future retroactive liability.  The bankruptcy judge distinguished State v. Murzyn, 142 Conn. 329, 114 A.2d 210 (1955), which he considered the leading authority, on the ground that the statutory scheme had been amended four years later to eliminate retroactive liability.  On this theory, the claim made by the Commissioner for $1,623.65 was not uncertain at all, since no future event could affect it.

13
With some diffidence in this area of Connecticut law, we believe that the bankruptcy judge, and therefore the district court, probably erred in this assessment of Crisp's possible liability.  A Connecticut decision after the statutory amendments relied on by the bankruptcy judge construed the present C.G.S.A. § 17-295 to allow retroactive billing.  State v. Dickinson, 4 Conn.Cir. 81, 225 A.2d 841 (1966).  Moreover, as indicated above, the Commissioner also relies on an even later statute, the present section 295b, to support a future retroactive claim and this statute was not mentioned by the bankruptcy judge.  Nevertheless, for reasons indicated below, we believe that the bankruptcy judge reached the right result.

14
Assuming arguendo that appellant has correctly stated Crisp's potential obligation to the State, the question to be decided is whether the Commissioner's claim is now "capable of liquidation or of reasonable estimation."  "What infusion of contingency will vitiate a claim is at best a question of degree (see Maynard v. Elliott, 283 U.S. 273, 277-78, 51 S.Ct. 390, 75 L.Ed. 1028 (1931)), though there is a leaning toward allowance in aid of the purpose of the statute to relieve the honest debtor."  Brown v. O'Keefe, supra, 300 U.S. at 606, 57 S.Ct. at 548.  The decision "ultimately rest(s) upon the exercise of judicial discretion in light of the circumstances of the case."  3A Collier, supra, P 63.30, at 1912.  Even under the Commissioner's construction of the relevant statutes, Crisp's liability for the cost of his hospitalization is not completely contingent; it already exists.4  Only the amount of the obligation is subject to the contingency of Crisp's future income.  However, at any particular time the amount of the debt is known.  It is fixed by state law at the sum the Commissioner has determined the patient able to pay.  Thus, the claim is liquidated when a bill is rendered, even if it is subject to increase.  This is not a mere "arbitrary" estimate, see 3 Collier, supra, P 57.15(3.3), at 264 (rev.1974), but rather an accurate statement of the debt at that time.  Moreover, the possibility that the debt may be increased is still "capable of . . .  reasonable estimation" under section 57d.  Whether the bankruptcy court would liquidate the debt at the maximum of $10,250.82, the per capita cost already fixed, or at some lesser amount would depend on the evidence before the court, e. g., the source of any possible windfall, the Commissioner's practice if the bankrupt's wages merely increase.5

15
Indeed, appellee argues that the very contingency of the obligation makes the State's claim provable as a "contingent debt" under section 63a(8), 11 U.S.C. § 103(a)(8).  The question is one of some difficulty.  According to Collier, supra, PP 57.15, 63.23, 63.30, there is at least doubt whether a debt is provable solely because it is contingent.  Rather, section 63a(8) may insure that no debt of a type otherwise provable under section 63a will be denied proof because it is contingent.  Since section 63a(8) may not have been intended to establish a completely new category of provable debts, it might be incorrect to allow proof of a claim on the basis of section 63a(8) alone.  On the other hand, if section 63a(8) is to be given any independent meaning, see, e. g., 3 Collier, supra, P 57.15(2), at 251-53, the debt in this case would appear to be the kind of obligation which should be covered.6  On this view, the limitation of section 57d should not be too rigidly applied.  In any event, we believe the debt is "capable of . . .  reasonable estimation" under section 57d and is therefore allowable, so that the bankruptcy judge's denial of the Commissioner's application to have the debt declared nondischargeable was correct.7

16
The result we reach is in complete accord with the objectives of the Bankruptcy Act.  Crisp is apparently a typical "honest debtor."  His obligation was incurred when he was unable to work and required the care and treatment which gave rise to the Commissioner's claim.  After Crisp's discharge in bankruptcy, one hopes he will be able to meet his current obligations and perhaps earn his own way.8  It would frustrate the remedial purposes of the Bankruptcy Act if, when Crisp was finally self-supporting, the State could suddenly appear and assert a claim for over $8,000 for medical care rendered years before.  Such a possibility would deny Crisp "a new opportunity in life and a clear field for future effort, unhampered by the pressure and discouragement of pre-existing debt."  Perez v. Campbell, 402 U.S. 637, 648, 91 S.Ct. 1704, 1710, 29 L.Ed.2d 233 (1971) (citations omitted).  As a result of the decisions below, the State will be unable to press such a claim.9

III

17
The Commissioner also argues that the eleventh amendment bars discharge of Crisp's debt without the consent of Connecticut.  But the eleventh amendment does not apply here at all.  It protects a state from federal court money judgments necessarily paid out of the state treasury.  Edelman v. Jordan, 415 U.S. 651, 663, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974).  The action must be "in essence one for the recovery of money from the state."  Id., quoting Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 464, 65 S.Ct. 347, 350, 89 L.Ed. 389 (1945).  In this case, Crisp is not seeking any payment from the State treasury.  A judgment of dischargeability in the bankruptcy proceeding does not now deplete Connecticut's coffers by a penny.  Indeed, distribution of Crisp's assets at the close of the bankruptcy proceeding may even put the State a few dollars ahead.

18
The State also urges that is has not waived its sovereign immunity from suit.  To the extent that in this context this is a different argument from the one based on the eleventh amendment, see, e. g., Employees v. Department of Public Health & Welfare, 411 U.S. 279, 287-89, 93 S.Ct. 1614, 36 L.Ed.2d 251 (1973) (Marshall, J., concurring); Id. at 298, 309-15, 93 S.Ct. 1614 (Brennan, J., dissenting), it is equally unavailing.  In the first place, the State is not being sued here, so there is no cause to raise what is essentially a defense.

19
Secondly, Article I, section 8, clause 4 of the Constitution specifically grants Congress the power to enact bankruptcy laws, which it has exercised in Title 11 of the United States Code.  It is now established that Congress, by enacting the Bankruptcy Act of 1898 and by continuing in effect what is now section 17a(1), 11 U.S.C. § 35(a)(1), intended to make debts owed to the state and federal governments dischargeable.  Guarantee Title & Trust Co. v. Title Guaranty & Surety Co., 224 U.S. 152, 155, 160, 32 S.Ct. 457, 56 L.Ed. 706 (1912); Hilliard v. DeCiuceis, 115 N.Y.S.2d 5, 202 Misc. 197 (Sup.Ct.N.Y.Co.1952); 1A Collier, supra, P 17.13 (rev.1975).  Any exception for a particular kind of state debt should come from Congress, not from us.10

20
Finally, Connecticut has waived any immunity it arguably might have by filing its proof of claim.  Connecticut was not obliged to follow this course, but it invoked the jurisdiction of the bankruptcy court in an attempt to benefit itself.  By doing so, Connecticut waived any possible sovereign immunity.  Cf. Clark v. Barnard, 108 U.S. 436, 447-48, 2 S.Ct. 878, 27 L.Ed. 780 (1883).

21
The judgment of the district court is affirmed.

VAN GRAAFEILAND, Circuit Judge (concurring):

22
I concur in the holding that the contingent claim of the State was dischargeable in appellee's bankruptcy proceedings.  My only concern is that the bankruptcy judge did not attempt to liquidate the contingency or estimate the amount thereof as required by section 57d of the Bankruptcy Act, 11 U.S.C. § 93(d).  The claim, as allowed, was for the amount due and owing at the time of the bankruptcy.

23
However, since appellee's motion to amend his schedules to include the full amount of the possible contingent liability was not concurred in by the State, it has no cause to complain.

24
Proper procedures in future cases would, I believe, include an evaluation of the contingent liability by the bankruptcy judge.

1
 The rate was initially $4.15 per day and was increased to $4.565 in 1971, when Crisp's disability allowance was raised

2
 The "cost per capita per week for the support of persons in state humane institutions" is calculated annually by the state comptroller, and is apparently the actual cost of the care and treatment provided.  C.G.S.A. § 17-295(a)

3
 We do not find it necessary to consider the bankruptcy judge's alternative holding that the debt was provable as an "open account" under § 63a(4).  There are a number of indicia of an open account present here; e. g., the State sent Crisp an "Itemized Statement," showing the $1,623.65 as a "balance due," and a letter offering to set up "some sort of monthly payment plan" "to pay off" Crisp's "account"; the State even demanded judgment for this sum.  On the other hand, any increase in Crisp's liability on the account would result not from receipt of additional goods or services on credit from the State, but from actions over which the creditor (State) has no control.  The account is thus quite unlike the normal commercial running account which this provision is designed to cover.  See 3A Collier, supra, P 63.22

4
 Indeed, the Director of the Division of Central Collection of the Department of Finance and Control testified before Judge Clarie as follows:
The Witness: . . .  (I)f this part of the debt (i. e., the $1,623.65 already billed) is dischargeable, we still have the individual responsible for the balance.
The Court: For the difference?
The Witness: Yes.  But actually this man right now has a potential liability of $10,180.82 (i. e., the total cost of treatment less Crisp's $70 payment).

5
 The director of the Division of Central Collection testified that the State's policy was as follows:
If we became aware of Mr. Crisp coming into any sudden or unexpected wealth, other than normal employment, we would seek to recover from him or his estate the unpaid charges.

6
 We note that, according to appellee, he moved before the bankruptcy judge for leave to amend his schedules to show the Commissioner's claim at $12,000, well over the full per capita cost.  The motion was not acted upon, but appellee suggests that had it been granted, any possible uncertainty would have disappeared

7
 The State cites Thompson v. England, 226 F.2d 488 (9th Cir. 1955), as an analogous case where a claim was not allowed.  There, the bankrupt's wife filed a claim for a $12,000 debt which her husband had agreed to repay "as soon as (his) business is in a sound financial position."  The court held that the occurrence of this contingency was so fortuitous and difficult to predict, both because it required the business to be started again and because it required the bankrupt to achieve business success, that § 57d precluded allowance of the claim.  Thompson is distinguishable here because of the strong possibility of collusion between husband and wife to the injury of other creditors, and because the debt there had no ascertainable present value at all.  In contrast, Crisp's debt is for a fixed amount at any particular time

8
 Papers filed by the State before the bankruptcy judge indicate that as of May 1974, Crisp was employed at a full time job although he continued to reside in Norwich Hospital.  Billing for his care after 1972 was apparently made on an account not involved in this suit

9
 See § 14f(2) of the Act, 11 U.S.C. § 32(f)(2):
(f) An order of discharge shall  . . .
(2) enjoin all creditors whose debts are discharged from thereafter instituting or continuing any action or employing any process to collect such debts as personal liabilities of the bankrupt.

10
 E. g., Congress recently demonstrated it is well aware of the problem of bankruptcy discharge of debts owed to states for social services by specifically exempting from dischargeability "a child support obligation assigned to a State."  Pub.L.No.93-647 (Jan. 4, 1975), § 101(a), adding § 456(b) to Title IV of the Social Security Act, 43 U.S.L.W. 153, 159


                                      PUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT

                                       No. 17-6627

UNITED STATES OF AMERICA,

                     Petitioner - Appellee,

              v.

KAYLAN JAY BELL,

                     Respondent - Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at
Raleigh. Terrence W. Boyle, District Judge. (5:16-hc-02204-BO)

Argued: January 30, 2018                                        Decided: March 12, 2018

Before NIEMEYER and TRAXLER, Circuit Judges, and SHEDD, Senior Circuit Judge.

Affirmed by published opinion. Judge Traxler wrote the opinion in which Judge
Niemeyer and Senior Judge Shedd joined.

ARGUED: Jaclyn Lee DiLauro, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Raleigh, North Carolina, for Appellant. Christopher Michael Anderson, OFFICE OF
THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. ON
BRIEF: Louis C. Allen, Acting Federal Public Defender, OFFICE OF THE FEDERAL
PUBLIC DEFENDER, Raleigh, North Carolina, for Appellant. Robert J. Higdon, Jr.,
United States Attorney, G. Norman Acker, III, Assistant United States Attorney, OFFICE
OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
TRAXLER, Circuit Judge:

       Under the Adam Walsh Child Protection and Safety Act of 2006 (the “Act”), 18

U.S.C. §§ 4247-4248, the government may civilly commit a “sexually dangerous person”

to the custody of the Attorney General upon the expiration of the person’s prison

sentence if the government proves by clear and convincing evidence that the person: (1)

“has engaged or attempted to engage in sexually violent conduct or child molestation”;

(2) “suffers from a serious mental illness, abnormality, or disorder”; and (3) as a result,

“would have serious difficulty in refraining from sexually violent conduct or child

molestation if released.” 18 U.S.C. § 4247(a)(5), (a)(6). Kaylan Bell appeals the district

court’s order finding him to be sexually dangerous under the Act. We affirm.

                                            I.

                                            A.

       Bell is 33 years old. In 1999, when he was 14 years old, he sexually molested his

six-year-old half-brother. He was convicted in juvenile court in Utah and received a

sentence of suspended detention and counseling. When Bell was approximately 16 years

old, he sexually molested his half-brother again and his six-year-old male cousin. Bell

bribed his victims to engage in this sexual activity and to remain silent. He was not

arrested or charged for these latter offenses. For much of this time, Bell had been placed

in a youth home by his mother.       However, Bell violated the rules by engaging in

consensual sexual acts with peer-age males, and he was removed from the home.

                                            2
       In 2003, when Bell was 18 years old, he exposed his penis and masturbated in

front of at least three 12-year-old boys in a pool locker room. Bell admitted to this

conduct, but he was not arrested or charged.

       In May 2004, Bell went to a field across from an elementary school and

masturbated within 10 to 15 feet of six or seven small children. Bell admitted that he

wanted the children to see him, and he hoped that they would come over and engage in a

sexual act with him. Bell also admitted to a responding police officer that he had

masturbated at the field as recently as one week prior to the incident and that he

fantasized about sexual encounters with children. Bell was convicted in Utah state court

of two counts of lewdness involving a child. He was sentenced to 24 months’ probation.

       On September 4, 2004, while on probation, Bell committed another sexual

offense. He smoked marijuana and walked to an area near a school “looking to do

something sexual with someone.” J.A. 78. Bell saw two boys, ages 7 and 9, and “wanted

to have sexual contact with the boys.” J.A. 80. He approached the boys and, within 10

or 20 feet of them, “exposed [his] penis and masturbated in front of the boys.” J.A. 80.

When one of the boys asked the other, “‘What do you want to do?’” Bell “exposed his

erect penis and scrotum and said, ‘You could play with this.’” J.A. 375-76. Bell was

arrested and admitted “that he often fantasizes about anal and oral sex with boys, as well

as fondling their genitals.” J.A. 376.      He was convicted of third-degree attempted

sodomy on a child. While incarcerated in Utah state prison, Bell admitted to therapists

that his urges were very strong and that he has violent fantasies, including one in which

he “conclud[es] sex with a child by slitting the child’s throat as he orgasm[s].” J.A. 376.

                                               3
       On December 9, 2009, Bell was released from state prison. Less than three

months later, Bell targeted a 13-year-old boy that he saw in a grocery store and followed

him, hoping to convince the boy to engage in a sexual act with him. Bell eventually gave

up when it got too cold outside.

       On June 1, 2010, Bell was arrested for failing to register as a sex offender, in

violation of 18 U.S.C. § 2250(a), after moving from Utah to Idaho. He pled guilty and

received a sentence of 42 months, followed by lifetime supervised release. During that

proceeding, the district court observed that Bell “‘poses a serious danger to children’ and

‘has begun to fantasize about kidnapping, molesting and then murdering young boys.’”

J.A. 377. Given his “‘documented history of interest and willingness to act on his urges,’

and ‘lack [of] impulse control,’” the district court observed that the “‘danger [Bell] poses

to the community is of paramount concern.’” J.A. 377.

       On October 4, 2013, Bell was released to the community from his federal prison

sentence. Among other things, Bell was required to abstain from using alcohol, take his

prescribed medications, and participate in mental-health and sex-offender treatment. Bell

was noncompliant.      He drank alcohol, used drugs, failed to take his prescribed

medications, failed to regularly appear for mental-health and sex-offender treatment

sessions, and failed to comply with other conditions of his supervised release. Bell also

admitted to his probation officer that he had been masturbating in public bathrooms to

fantasies about prepubescent boys that he had seen in the community. Four months later,

on February 5, 2014, Bell’s supervised release was revoked for failing to comply with the

conditions of his release. He was sentenced to 12 months in prison.

                                             4
       On February 4, 2015, Bell was released from federal prison for the second time

under similar conditions of supervised release. Less than two weeks later, Bell skipped a

scheduled meeting with his probation officer, purchased alcohol, walked to a nearby park

where he had previously seen elementary school-age children playing, and quickly drank

the alcohol. He located two boys, ages 11 and 13, and began watching them. When the

boys walked to another location, Bell followed them. He exposed his penis to the

children, began masturbating, and, with his penis in one hand, Bell opened his wallet,

showed the boys money, and asked them to come over to him. When the boys refused,

Bell moved closer. The boys threw rocks at Bell and told him (falsely) that they had a

gun and would shoot him if he did not stop. Bell continued towards them, picked up a

stick, and threatened to sodomize the boys with it. Bell left when an adult intervened, but

was apprehended nearby. Bell’s probation officer was notified and went to the scene to

interview Bell and his victims.     Bell admitted to most of the conduct, but denied

threatening the boys. However, Bell also admitted that he was intoxicated, which alcohol

testing confirmed. Bell pleaded guilty in state court to indecent exposure and was

sentenced to 180 days in state prison. His federal supervised release was also revoked,

for which he received an 18-month term of imprisonment.

                                            B.

       Bell’s projected release date from federal prison was December 5, 2016. On

August 17, 2016, the government initiated commitment proceedings by filing a

certification that Bell was a sexually dangerous person within the meaning of the Act,

staying his release.

                                            5
       At the commitment hearing, Bell admitted to the lion’s share of his prior conduct.

However, he denied that he was sexually attracted to prepubescent children and, despite

earlier admissions to the contrary, denied that he fantasized about prepubescent children.

He claimed that he was only attracted to older children (ages 13-17) and that he had

mistakenly believed that his earlier victims were older than they actually were. The

district court did not credit Bell’s testimony. The district court pointed to evidence that

Bell “masturbated to fantasies involving prepubescent children, and fantasized about

violent sexual acts with them while in state prison,” and “continued masturbating to

pedophilic fantasies, sometimes using magazine pictures of boys, in federal prison and

even while in sex offender treatment.” J.A. 382-83.

       Bell’s mother testified at the hearing about her son and letters that he had written

to her. For example, in 2014, Bell wrote to his mother that “he had tried to molest

children,” that “he had stopped children,” and that “he had gone to church just for the

purpose of trying to entice children so that he could molest them.” J.A. 40. Bell also

admitted to fantasizing about “devour[ing] humans of their flesh, bone, and blood,” and

to having “psychotic dreams with friends, family, and random people being butchered,

raped, [and] beaten” by him. J.A. 42-43. Bell’s mother testified that she knew that civil

commitment would mean that Bell would have to remain in custody, but chose to testify

“[s]o that [Bell] can get the help that he needs, so that he can be kept safe, and so children

can be kept safe.” J.A. 39.

       Bell’s federal probation officer also testified at the hearing. As noted above, Bell

was noncompliant with his medication regime, failed to consistently attend his case

                                              6
management appointments, and failed to consistently appear for his mental-health and

sex-offender treatment sessions. In addition, Bell “was very concerned about his term of

GPS monitoring” and “wanted to be released from the GPS monitoring as soon as

possible.” J.A. 139-40. He also failed to charge his GPS on a consistent basis. Bell

continued to have deviant thoughts about sex with underage boys, which often included

pain and blood, and masturbated to these deviant fantasies. According to the probation

officer, Bell was the most impulsive person that she had ever supervised during her 20-

year career in corrections. J.A. 148. She testified that the probation office had done

“everything that we possibly could to help Mr. Bell and still his non-compliant behavior

escalated throughout the course of each term of supervision. And we were fortunate here

that the sex offense violation that was committed [in 2015] wasn’t more severe.” J.A.

167.

       Three mental health experts also testified at the hearing. Rebecca Barnette, Ph.D.,

evaluated Bell on behalf of the Bureau of Prisons, and Mark Hastings, Ph.D., was

appointed by the district court to evaluate Bell. Both opined that Bell suffered from

Pedophilia along with several other disorders. Prior to Bell’s earlier terms of supervised

release, Dr. Barnette had concluded that Bell met the first two prongs of the certification

requirements, but not the third prong. In her more recent review, however, Dr. Barnette

concluded that Bell’s escalated attempt at child molestation, combined with the other

indicators of his lack of impulse control, demonstrated that he was sexually dangerous to

others. Dr. Hastings agreed. Joseph Plaud, Ph.D., evaluated Bell at the request of Bell’s

                                            7
counsel. He testified that Bell was not a pedophile and would not have serious difficulty

refraining from molesting a child if released.

       The district court found that the government had established by clear and

convincing evidence that Bell was sexually dangerous. With regard to the first prong, the

district court found that [Bell] has attempted to engage in child molestation.” J.A. 380.

In addition, the district court noted that “[a]ll of the experts agree[d] that [Bell] engaged

in child molestation by virtue of at least his 1999 conviction for molesting his brother”

and Bell did “not dispute that the government ha[d] proven the first element.” J.A. 380.

       With regard to the second prong, the district court credited the opinions of Drs.

Barnette and Hastings over that of Dr. Plaud, and found that the government had “met its

burden to show that [Bell] suffers from Pedophilic Disorder, which constitutes a serious

mental illness, abnormality, or disorder under the Act.” J.A. 385. Among other things,

the district court noted Bell’s history of acting on his sexual urges towards prepubescent

children, which began when he was a teenager and continued through his most recent

offense in 2015, his ongoing masturbation to fantasies involving the sexual molestation

of prepubescent children, and his violent sexual fantasies or dreams about such children.

The diagnosis was also supported by penile plethysmograph (“PPG”) “testing in 2005

that showed [Bell’s] sexual arousal to infant males, 5-year-old males, and 10-year-old

males; PPG testing in 2012 that used both audio and visual stimuli and that showed

clinically significant sexual arousal to grammar-school-age males,” a Screening Scale for

Pedophilic Interest “administered by Dr. Hastings in 2016 on which [Bell] received the

highest possible score,” and “a 2005 psychological evaluation concluding that [Bell]

                                             8
exhibits pedophilic interest, and virtually an obsession over sexual contact with children.”

J.A. 383 (internal quotation marks and citations omitted). In addition, the district court

found that Bell suffered from Borderline Personality Disorder, Alcohol Use Disorder,

Cannabis Use Disorder, Borderline Intellectual Functioning Disorder, and Unspecified

Schizophrenia Spectrum and Other Psychotic Disorder.

       With regard to the third prong, the district court again credited the opinions of Drs.

Barnette and Hastings over that of Dr. Plaud, and found that Bell would have serious

difficulty in refraining from sexually violent conduct or child molestation if released from

custody. First, the district court found that Bell’s mental illnesses had clearly reduced his

ability to control his behavior:

       [Bell] suffers from strong pedophilic fixations and fantasies, as well as a
       marked impulsivity and lack of self-regulation. These problems are
       compounded by [Bell]’s substance abuse and are reinforced through his
       lack of ability or motivation to curb his urges. Additionally, [Bell]
       encourages and succumbs to his sexual desires through masturbation to
       fantasies of children and by seeking out areas to watch and approach
       children, even knowing of the high risk of punishment for such conduct.
       [Bell]’s pedophilic urges have therefore, despite external consequences and
       the passage of time, not abated but have continued to be manifested through
       masturbation, violent fantasies, and stalking and exposure behavior, even
       during incarceration, while in treatment, and even while on supervision in
       the community.

              The Court also finds it important to note that . . . [Bell]’s pedophilic
       urges and fixations have manifested themselves in what are often violent
       and distressing fantasies or dreams. [Bell] has admitted several times to
       having such violent sexual fantasies or dreams about children, including
       fantasies in which he kidnaps, murders, or violently rapes children. Though
       [Bell] has admitted to these fantasies to therapists and though he has
       expressed distress and regret over having them, the record does not show
       that [Bell] has meaningfully or consciously taken steps that would help him
       control or reduce such fantasies or dreams of violence.

                                             9
J.A. 387-88. Second, the district court found that Bell’s inability to control his behavior

was demonstrated by his prior offenses, recidivism, and supervised release violations.

       [R]espondent has a significant history of sexual reoffending, beginning
       when he was 14 and continuing today to the age of 32, such that, in the past
       ten years, [Bell] has spent less than one year in the community. Each
       sexual offense has largely followed the same pattern: [Bell] is released,
       fails to follow the conditions of supervision, and within a few months or
       even weeks has committed a sexual offense in the presence of young
       children. And, a[s] Drs. Barnette and Hastings discussed, those offenses
       have involved escalating conduct, culminating in his most recent offense
       during which he tried to entice two boys with money to engage in sexual
       behavior in a public park, stalked the boys despite threats of physical
       violence, and threatened to sodomize the boys with a stick. [Bell]’s lack of
       volitional control is also shown by his pattern o[f] noncompliance under
       supervision. He has been unable to comply with the requirements of
       supervision, including requirements that would help him manage his urges
       such as refraining from alcohol and drugs or attending therapy. Moreover,
       the record shows that [Bell] has had trouble controlling his behavior even
       while incarcerated. The record show[s] 15 violations while in state prison,
       including at least one sex act violation. While in federal prison, [Bell]
       committed additional violations, including violations for the use of drugs
       and sexual activity.

J.A. 388-89. There was also evidence of Bell’s cognitive distortions “in which he has

excused or justified his conduct, including by denying planning and identifying himself

as a victim as well.” J.A. 390.

       Third, the district court noted that Bell’s actuarial sex-offender risk assessment

scores were high. “Compared to other adult male sex offenders, [Bell]’s Static-99R and

Static-2002R scores place[d] him in the 99.99th percentile, and the sexual recidivism rate

of sex offenders with the same score as [Bell] is expected to be approximately 7.32 and

6.90 times higher than the recidivism rate of the typical sexual offender, depending on the

test.” J.A. 389.

                                            10
       And finally, the district court found it significant that Bell had “admitted many

times in the past to needing help and not being able to control his urges,” including as

recently as 2016, when Bell admitted that he was “not ready for release to the community

and that he desperately needs sex offender treatment.” J.A. 390 (internal quotation marks

omitted). However, Bell lacked “a history of effective or successful participation in

treatment, despite many chances,” J.A. 390, which “was likely due, at least in part, to

ambivalence about changing [his] problematic behaviors,” J.A. 391 (internal quotation

marks omitted). “[C]onsequently, [Bell] reoffended sexually despite participation in sex

offender treatment at ages 17, 18, 27, 28, and 29.” J.A. 391. In addition, Bell lacked

protective factors in his life. He “has little family or emotional support” and “supervision

was not effective at helping him maintain discipline.” J.A. 391.

                                            II.

       In an appeal from an order granting civil commitment under the Act, we review

the district court’s factual findings for clear error and its legal conclusions de novo. See

United States v. Wooden, 693 F.3d 440, 451 (4th Cir. 2012). A reviewing court “may not

reverse a lower court’s finding of fact simply because it would have decided the case

differently. Rather, a reviewing court must ask whether, on the entire evidence, it is left

with the definite and firm conviction that a mistake has been committed.” Id. (internal

quotation marks and alteration omitted). Moreover, when a district court’s findings of

fact are based on credibility determinations, we accord “even greater deference to the trial

court’s findings.” United States v. Hall, 664 F.3d 456, 462 (4th Cir. 2012) (internal

quotation marks omitted). We are “especially reluctant to set aside a finding based on the

                                            11
trial court’s evaluation of conflicting expert testimony.” Id. (internal quotation marks

omitted). “Evaluating the credibility of experts and the value of their opinions is a

function best committed to the district courts, and one to which appellate courts must

defer.” United States v. Heyer, 740 F.3d 284, 292 (4th Cir. 2014) (internal quotation

marks and alteration omitted).

                                             III.

       On appeal, Bell does not dispute the district court’s findings that he has previously

engaged and attempted to engage in acts of child molestation, and that he suffers from

Pedophilia, which is a serious mental illness, abnormality, or disorder.        Rather, he

challenges the district court’s finding that, as a result of his mental illnesses, he would

have serious difficulty in refraining from child molestation if released.

                                             A.

       Bell first argues that, as a matter of law, the government could not establish by

clear and convincing evidence that he would have serious difficulty refraining from child

molestation because he has not committed a hands-on child molestation offense since he

was a juvenile and his exposure offenses as an adult do not independently rise to the level

of child molestation or sexually violent conduct. We disagree.

       First, the Act plainly does not require the government to prove that a person has

committed a hands-on child molestation or sexually violent offense as an adult to prove,

by clear and convincing evidence, that he would have serious difficulty refraining from

doing so if released from custody. Nor, obviously, must the person have been successful

in his attempts to commit such an offense in order to be found sexually dangerous to

                                             12
others. On the contrary, the first prong of the sexual dangerousness inquiry requires the

government to prove that the inmate “has engaged or attempted to engage in sexually

violent conduct or child molestation.” 18 U.S.C. § 4247(a)(5) (emphasis added). And

the third prong requires the government to prove that, as a result of a serious mental

illness or disorder, the inmate “would have serious difficulty in refraining from sexually

violent conduct or child molestation if released” from custody.         Id. § 4247(a)(6)

(emphasis added).

      The “serious difficulty” inquiry “refers to the degree of the person’s volitional

impairment, which impacts the person’s ability to refrain from acting upon his deviant

sexual interests.” Hall, 664 F.3d at 463 (internal quotation marks omitted). Although

consideration of the inmate’s criminal record is a critical part of the analysis, the core

question is whether the government has presented “sufficient evidence of an ongoing

volitional impairment” that renders the person sexually dangerous to others. United

States v. Antone, 742 F.3d 151, 168 (4th Cir. 2014). A number of other factors are also

considered, including the offender’s age, his actuarial test scores, his participation in

treatment, his commitment to controlling his deviant behavior, and his ability to control

his impulses. See Hall, 664 F.3d at 464. The individual’s resistance to treatment,

continuing “deviant sexual thoughts,” and “cognitive distortions and thinking errors

about the appropriateness of children as sexual partners” are also relevant. Wooden, 693

F.3d at 462.

      In this case, there is no evidence that Bell has been successful in his attempts to

commit a hands-on child molestation offense during the narrow periods of time that he

                                           13
has been returned to the community as an adult. But there is no question that the

government has presented clear and convincing evidence of Bell’s “ongoing volitional

impairment.” Antone, 742 F.3d at 168 (emphasis omitted). Bell has demonstrated an

inability “to refrain from acting upon his deviant sexual interests” time and time again.

Hall, 664 F.3d at 463.

       Second, the district court did not reach the conclusion that mere exposure offenses,

without more, rise to the level of child molestation for purposes of the Act. Rather, the

district court properly evaluated the totality of Bell’s diagnoses, his prior sexual offenses,

and the other notable and numerous indicators of his lack of volitional control, and

reached the reasonable conclusion, based upon the clear and convincing evidence, that

Bell was sexually dangerous to children and should not be released from custody. In

doing so, the district court specifically addressed Bell’s argument that his adult offenses

were merely “exhibitionism” offenses that cannot be not be considered sexually

dangerous conduct, but found that Bell’s “conduct should [not] be characterized so

mildly.” J.A. 391.

       First, [Bell] has demonstrated a marked pattern of approaching and
       targeting children. Even after serving severe consequences throughout his
       adult life for such conduct, nearly each time when released [Bell] has
       promptly reoffended in the same manner. This indicates that [Bell] has a
       difficulty controlling his sexual behavior. Second, that behavior, while not
       involving hands-on contact as an adult, has exhibited a pattern of
       escalating conduct, increasingly threatening actions, and what the Court
       finds to be several attempts at hands-on contact. Several times while
       exposing himself, [Bell] asked children to approach him or offered sex to
       those children. [Bell]’s most recent offense involved enticement and
       threats of violence to children that [Bell] had approached and exposed
       himself to, all while in public and at a high risk of once again facing
       criminal consequences. This all indicates to the Court that, despite years of

                                             14
       incarceration, targeted therapy, close monitoring while on probation, and
       even after being assessed twice for commitment under this Act, [Bell] still
       was unable to curb his behavior and refrain from the very conduct which
       has landed him in trouble time and time again. The court finds that [Bell]’s
       conduct has crossed the line from merely exhibitionism to enticement, that
       [Bell]’s own actions and words demonstrate that he was attempting more
       than to simply expose himself, and that [Bell] has shown himself to be a
       high risk for targeting and enticing children for molestation.

J.A. 391-92 (emphasis added). We agree, and we find no error in the district court’s

rejection of Bell’s claim that, as a matter of law, his adult sexual offenses cannot be

considered sexually dangerous conduct for purposes of the Act.

                                             B.

       In a slightly different presentation of his argument, Bell next contends that the

district court clearly erred in finding that he would have serious difficulty refraining from

acts of child molestation.    Specifically, Bell argues that the district court failed to

properly account for the 18-year gap since his last, successful hands-on offense, as well

as the 10-year gap between his May 2004 and February 2015 sexual offenses. According

to Bell, these temporal gaps prove that he can control his impulses.

       We find no merit to this claim either. The district court exhaustively reviewed the

evidence and testimony presented, including the history of Bell’s sexual offenses and his

long periods of intermittent incarceration, credited the expert opinions of Drs. Barnette

and Hastings, and found that Bell lacked the volitional control necessary to be safely

returned to the community. Although the district court was aware of the temporal gaps

between Bell’s sexual offenses in the community, the court was unpersuaded that these

gaps demonstrate Bell’s ability to control his impulses. On the contrary, Bell’s lack of

                                             15
volitional control had been “demonstrated . . . by his historical offenses, recidivism, and

failures while on supervision” in the community.          J.A. 388.    As the district court

observed, “[Bell] has a significant history of sexual reoffending, beginning when he was

14 and continuing today to the age of 32, such that, in the past ten years, [Bell] has spent

less than one year in the community. Each sexual offense has largely followed the same

pattern: [Bell] is released, fails to follow the conditions of supervision, and within a few

months or even weeks has committed a sexual offense in the presence of young

children.” J.A. 388-89 (emphasis added).

       We find no error in the district court’s decision to credit the testimony of Drs.

Barnette and Hastings regarding Bell’s sexual dangerousness, and no clear error in the

district court’s other factual findings.

                                             C.

       Bell’s final claim is that the district court erred in crediting Dr. Barnette’s opinion

the he was sexually dangerous because Dr. Barnette had twice declined to reach that

conclusion in prior evaluations of Bell. We disagree.

       Dr. Barnette’s first evaluation of Bell was in 2013, just prior to his release from

federal prison after his failure-to-register conviction. At the time, she was concerned

about Bell’s conduct, but felt that the temporal distance from his most recent sexual

offense, and stringent supervised-released conditions, weighed against finding that he met

the requirements for civil commitment. Dr. Barnette’s second evaluation of Bell was in

2014, after his supervised release was revoked for his failure to comply with the

conditions of his release. Although Dr. Barnette remained concerned, she declined to

                                             16
find that Bell was sexually dangerous because there was no evidence that he had

approached or molested a child during the four months that he was on supervised release.

       Not so at the time of Dr. Barnette’s third evaluation. Contrary to Bell’s claim, Dr.

Barnette did not change her opinion in the absence of any relevant new facts or

circumstances. “[W]hat changed my opinion,” Dr. Barnette testified, “was Mr. Bell’s

behavior when he was released from prison during his last time.” J.A. 213. Despite

nearly daily contact with his probation officer, the threat posed by his two prior referrals

for evaluation under the Act, and two “opportunities in the community,” Bell had “re-

offended sexually within two weeks of his release.” J.A. 213-14. Moreover, Bell’s

“offense conduct was an escalation of the exposures that were committed in 2004, in that

he followed the children, enticed the children with money, which [was] consistent with

his [previous] hands-on offense patterns, that he would bribe his cousin and his brother to

engage in sexual activity with him, and that he threatened the children, and that,

ultimately, he did not leave the children alone until an adult intervened and was going to

call authorities on Mr. Bell.” J.A. 214. In sum, Dr. Barnette adequately explained why

Bell’s conduct led her to a different conclusion and we find no error in the district court’s

decision to rely upon it.

                                            IV.

       For the foregoing reasons, we affirm the judgment of the district court.

                                                                               AFFIRMED

                                             17


389 U.S. 11 (1967)
RHOADES ET AL.
v.
SCHOOL DISTRICT OF ABINGTON TOWNSHIP ET AL.
No. 225.
Supreme Court of United States.
Decided October 9, 1967.
APPEAL FROM THE SUPREME COURT OF PENNSYLVANIA.
Franklin C. Salisbury for appellants.
William C. Sennett, Attorney General of Pennsylvania, John P. McCord, Deputy Attorney General, and Edward Friedman for the Commonwealth of Pennsylvania, and William B. Ball for Paul et al., appellees.
PER CURIAM.
The motions to dismiss are granted and the appeal is dismissed for want of a substantial federal question.
MR. JUSTICE DOUGLAS is of the opinion that probable jurisdiction should be noted.


                                                                            FILED
                            NOT FOR PUBLICATION                              AUG 20 2013

                                                                         MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                        U.S. COURT OF APPEALS

                            FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                         No. 12-50395

              Plaintiff - Appellee,               D.C. No. 3:11-cr-05684-LAB-1

  v.
                                                  MEMORANDUM*
ALEJANDRO PEREZ,

              Defendant - Appellant.

                    Appeal from the United States District Court
                      for the Southern District of California
                     Larry A. Burns, District Judge, Presiding

                       Argued and Submitted August 7, 2013
                               Pasadena, California

Before: TALLMAN, CLIFTON, and CALLAHAN, Circuit Judges.

       Alejandro Perez appeals his conviction of importing methamphetamine into

the United States. He challenges the district court’s failure to suppress statements

made during an interrogation that exceeded the six-hour “safe harbor” period. He

also challenges the district court’s finding that his custodial statements were

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
voluntary, and argues that the district court committed reversible error when it

instructed the jury that the element of knowledge could only be proven by

circumstantial evidence. We affirm.

      We do not reach the merits of defendant’s Federal Rule of Criminal

Procedure 5 claim because it was waived. We review de novo issues involving

waiver. United States v. Jackson, 697 F.3d 1141, 1143 (9th Cir. 2012). Perez’s

motion to suppress was made solely on grounds of voluntariness, not on delayed

presentment. Perez sought dismissal based on the multi-day delay in presentment1

but did not identify to the district court any statements he contended should be

suppressed, let alone focus attention on whether there was any inappropriate delay

in presentment on the day of arrest.2 Given that the defendant bears the burden of

      1
        The motion to dismiss under Rule 5 did not provide a sufficient basis for
appellate review. The only reference to Perez was his name in the caption. The
motion included no facts relating to Perez’s experience nor any supporting
affidavit.
      2
        It is true that the district court may have been mistaken if its comments are
taken, as Perez argues, to express the view that a delay in Perez’s presentment
could be justified by the agents’ desire to interrogate him or because interrogation
had commenced but had not concluded. “Delay for the purpose of interrogation is
the epitome of ‘unnecessary delay.’” Corley v. United States, 556 U.S. 303, 308
(2009). But Perez never argued to the district court that there were statements made
on the day of arrest that should be suppressed, and the government had no
opportunity to present evidence or arguments in response to the issue. The
question of whether there was justification for delaying presentment to the
following day was never fully addressed by the district court.
                                          2
proving grounds for exclusion, it was incumbent on Perez to clearly raise the issue

below. United States v. Van Poyck, 77 F.3d 285, 288 (9th Cir. 1996). By failing to

adequately comply with Federal Rule of Criminal Procedure 12, Perez waived any

dispute about suppression of statements due to a Rule 5 violation, and placed the

issue beyond our ability to review for plain error. United States v. Wright, 215 F.3d

1020, 1026 (9th Cir. 2000).

      Here, there was no clear error in the district court’s finding that Perez’s

custodial statements were voluntary. Perez did not demonstrate that “under the

totality of the circumstances, his will was overborne.” United States v. Harrison,

34 F.3d 886, 890 (9th Cir. 1994). That a suspect remains in control of his responses

and consistently denies guilt is compelling evidence that his will was not

overborne. Juan H. v. Allen, 408 F.3d 1262, 1273 (9th Cir. 2005). The district

court did not clearly err in finding that Perez remained calm and that there was

nothing remarkable about the interrogation.

      Nor was there error in the jury instructions. On de novo review, even if clear

error exists, we do not reverse if the error was harmless. United States v. Rubio-

Villareal, 967 F.2d 294, 296 n.3 (9th Cir. 1992). The district court properly

instructed jurors to consider both direct and circumstantial evidence. Finally, the

                                          3
instruction did not relieve the government of its burden of proof. The instructions

correctly referenced the government’s burden on eight occasions.

      AFFIRMED..

                                          4