United States v. Stanley Burkhardt ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-7697
UNITED STATES OF AMERICA,
Petitioner - Appellee,
v.
STANLEY CARL BURKHARDT,
Respondent - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Bernard A. Friedman,
Senior District Judge, sitting by designation. (5:07-hc-02125-
D-JG)
Submitted: June 29, 2012 Decided: July 12, 2012
Before WILKINSON, DIAZ, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Suzanne Little, Assistant Federal Public Defenders, Raleigh,
North Carolina, for Appellant. Thomas G. Walker, United States
Attorney, Michael G. James, Assistant United States Attorney,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Stanley Carl Burkhardt appeals the district court’s
order committing him as a sexually dangerous person under the
Adam Walsh Child Protection and Safety Act of 2006, 18 U.S.C.
§ 4248(a) (2006). We have reviewed the record and affirm.
Burkhardt makes only two arguments on appeal. First,
he asserts that the civil commitment statute, 18 U.S.C. § 4248,
is actually a criminal statute, though it is nominally civil,
and that it violates equal protection principles because it
applies only to persons held in federal custody. As Burkhardt
recognizes, however, these lines of argument are entirely
foreclosed by our decision in United States v. Timms, 664 F.3d
436, 444-49, 455-56 (4th Cir. 2012) (ruling that § 4248 does not
violate equal protection guarantees and is not a criminal
statute).
Second, Burkhardt contends that the district court
erred in permitting the Government to introduce the testimony of
one of Burkhardt’s previous victims, given the Government’s
failure to apprise Burkhardt prior to the hearing that the
victim was available to testify. The district court’s decision
to permit the testimony of a witness not included on a party’s
pretrial witness list is reviewed for abuse of discretion.
United States v. Fulks, 454 F.3d 410, 421 (4th Cir. 2006).
Moreover, even where a district court abuses its discretion, its
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evidentiary decisions are reviewed for harmless error. Fed. R.
Civ. P. 61; United States v. Johnson, 617 F.3d 286, 292 (4th
Cir. 2010). In order to find a district court’s error harmless,
this court need only be able to say “with fair assurance, after
pondering all that happened without stripping the erroneous
action from the whole, that the judgment was not substantially
swayed by the error.” Kotteakos v. United States, 328 U.S. 750,
765 (1946).
Although the Government’s failure to disclose the
victim on its pretrial witness list is indeed a matter of
concern, we nevertheless conclude upon a review of the record
that the admission of the victim’s testimony was at worst
harmless error. Not only was the victim’s testimony of minimal
importance to the ultimate issue in the hearing, given the
stipulations entered into by the parties, but Burkhardt also
failed to take advantage of the opportunity given him by the
district court to delay the hearing in order to remediate any
disadvantage occasioned by the Government’s eleventh-hour
disclosure. See Southern States Rack And Fixture, Inc. v.
Sherwin-Williams Co., 318 F.3d 592, 597 (4th Cir. 2003). To the
extent that Burkhardt contends that the district court’s conduct
violated his due process right to confront adverse witnesses in
his civil commitment hearing, we conclude that any such error
was likewise harmless. See Chapman v. California, 386 U.S. 18,
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24 (1967); United States v. Mackins, 315 F.3d 399, 405 (4th Cir.
2003).
Accordingly, we affirm the judgment of the district
court. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
AFFIRMED
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