UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
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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