United States v. Gerald Timms , 537 F. App'x 265 ( 2013 )

UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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.
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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.
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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
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before the court and argument would not aid the decisional
process.
AFFIRMED
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