                             UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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

                                             3
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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