                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 12-8157


UNITED STATES OF AMERICA,

                Petitioner - Appellee,

          v.

GERALD WAYNE TIMMS,

                Respondent - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   Terrence W. Boyle,
District Judge. (5:08-hc-02156-BO)


Submitted:   July 29, 2013                 Decided:   August 9, 2013


Before TRAXLER, Chief Judge, and MOTZ and AGEE, Circuit Judges.


Affirmed by unpublished per curiam opinion.


William Woodward Webb, Sr., THE EDMISTEN, WEBB AND HAWES LAW
FIRM, Raleigh, North Carolina, for Appellant. Thomas G. Walker,
United States Attorney, Rudy A. Renfer, Jr., Edward D. Gray,
Assistant United States Attorneys, Raleigh, North Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

              Gerald Wayne Timms appeals the district court’s order

denying his motion for a new civil commitment hearing pursuant

to Fed. R. Civ. P. 59(a)(2).                    We have reviewed the record and

affirm.

              In    2008,    the   Government          initiated       civil      commitment

proceedings        against    Timms       by       certifying    him    as    a     “sexually

dangerous person” pursuant to 18 U.S.C. § 4248(a) (2006).                                After

a   hearing    in    2011,    the     district         court     dismissed        the   case,

finding that § 4248 was unconstitutional as applied to Timms.

We reversed and remanded with instructions that the district

court “determine on the merits whether Timms meets the § 4248

criteria   for      being    declared          a    ‘sexually     dangerous         person.’”

United States v. Timms, 664 F.3d 436, 456 (4th Cir. 2012).

              On remand, the district court entered an order civilly

committing         Timms      as      a        “sexually         dangerous           person.”

Specifically, the district court determined that the Government

established by clear and convincing evidence that Timms engaged

in sexually violent conduct in the past and that he suffers from

pedophilia, a serious mental disorder.                          Further, the district

court determined that Timms would have serious difficulty in

refraining     from    re-offending            if    released.         This    finding    was

based on expert witness testimony, as well as “Timms’ continued

violations         while     incarcerated,             his      refusal        to       accept

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responsibility           for     his     past     conduct,      and       his    lack    of    sex

offender treatment.”              (J.A. 307-08). *

                 Timms filed a motion for a new hearing pursuant to

Fed.       R.    Civ.    P.     59(a)(2),       arguing    that       a    new     hearing     was

“necessary        to     prevent       manifest       injustice.”          (J.A.    309).      On

December         12,    2012,    the     district       court   denied          Timms’   motion,

finding that Timms “identified no sufficient basis upon which

the    [c]ourt         might    find    that    the     evidentiary        hearing       in   this

matter was unfair or that a manifest injustice has resulted from

it.”       (J.A. 317).           Timms appeals, asserting that the district

court abused its discretion in denying his motion because the

absence of his own testimony and the disproportionate allotment

of expert witnesses at his trial resulted in manifest injustice.

                 We review for abuse of discretion the district court’s

denial      of    the    motion     for     a   new     hearing.          United     States     v.

Ibisevic, 675 F.3d 342, 349 (4th Cir. 2012).                                    Rule 59(a)(2),

Fed. R. Civ. P., states that “[a]fter a nonjury trial, the court

may, on motion for a new trial, open the judgment if one has

been entered, take additional testimony, amend findings of fact

and conclusions of law or make new ones, and direct the entry of

a new judgment.”               At the conclusion of a bench trial, “a motion

for rehearing ‘should be based upon manifest error of law or

       *
           “J.A.” refers to the joint appendix filed by the parties.



                                                  3
mistake of fact, and a judgment should not be set aside except

for substantial reasons.’”             Williams v. Hous. Auth. of Raleigh,

595   F.   Supp.   2d   627,     630   (E.D.N.C.      2008)   (quoting    Wright   &

Miller, Federal Practice and Procedure § 2804 (2d ed. 2005));

see also Ball v. Interoceanica Corp., 71 F.3d 73, 76 (2d Cir.

1995) (stating same standard).                Further, “a new trial will not

be granted on grounds not called to the court’s attention during

the   trial    unless      the    error   was    so    fundamental      that   gross

injustice would result.”               United States v. Carolina E. Chem.

Co., 639 F. Supp. 1420, 1423 (D.S.C. 1986) (citing Wright &

Miller, Federal Practice and Procedure § 2805).

             Timms has failed to identify any cognizable error with

regard to the absence of his testimony at the hearing.                    Notably,

Timms does not argue, nor is there any evidence to suggest, that

the   district     court    prohibited     him    from   testifying.       Rather,

Timms asserts that “[it] is manifestly unjust for the [c]ourt

not   to    evaluate    [his]      in-person     testimony     in   reaching    its

decision of sexual dangerousness.”               We disagree.       An individual

in a civil commitment hearing is not required to testify, but

must “be afforded an opportunity to testify.”                       See 18 U.S.C.

§ 4247(d) (2006).        Timms was afforded an opportunity to testify,

but chose not to.          We therefore find no error in the district

court      reaching     its      conclusion      without      hearing    in-person

testimony by Timms.

                                          4
               Timms has also failed to identify any error resulting

from    the    disproportionate        number       of    expert    witnesses       at   the

hearing.           Timms did not request an additional expert witness

prior to his hearing, as he was permitted to do pursuant to 18

U.S.C. § 4247(b) (2006).                  Rather, Timms presented the expert

testimony of Dr. John Warren, and waited until after the hearing

to request the appointment of a second expert.                           Moreover, Timms

did not raise any objections during the hearing concerning the

disproportionate number of expert witnesses.                         We thus find no

error     with      regard    to    the    number        of   expert      witnesses      who

testified at Timms’ hearing.

               Finally, we find unpersuasive Timms’ argument that it

was manifestly unjust that Dr. Warren, his expert witness, did

not conduct an in-person examination of him.                             Dr. Warren was

able to review Timms’ medical records, along with records of the

Department         of   Social     Services       and    other   data     pertaining     to

Timms’ history and psychological condition.                        Moreover, Timms did

not    object,       before   or    during        the    hearing,    to    Dr.    Warren’s

failure       to    personally     examine        him.     Thus,    this    claim     lacks

merit.

               Accordingly, we conclude that the district court did

not abuse its discretion in denying Timms’ motion for a new

hearing.       We dispense with oral argument because the facts and

legal    contentions         are   adequately        presented      in    the    materials

                                              5
before   the   court   and   argument   would   not   aid   the   decisional

process.

                                                                    AFFIRMED




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