UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-6911
UNITED STATES OF AMERICA,
Petitioner – Appellee,
v.
KEVIN LOU ENGLISH,
Respondent - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Dever, III,
Chief District Judge. (5:07-hc-02187-D-JG)
Submitted: April 29, 2013 Decided: May 2, 2013
Before GREGORY, DUNCAN, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Lawrence H. Brenner, BRENNER & BRENNER, P.A., Carrboro, North
Carolina, for Appellant. Thomas G. Walker, United States
Attorney, Jennifer P. May-Parker, Joshua B. Royster, Seth M.
Wood, Assistant United States Attorneys, Raleigh, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kevin Lou English 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.
English argues on appeal that the district court
abused its discretion in allowing a prior victim to testify as
an impeachment witness to contradict his testimony where the
Government was not allowed to call that witness as a fact
witness because she was not timely disclosed to English.
English contends that this violated his due process rights to
cross-examine witnesses against him and to effective
representation. In addition, English argues that this error was
not harmless based on the other evidence presented at the
commitment hearing.
We review a district court’s decision regarding
whether a witness should be allowed to testify for abuse of
discretion. See United States v. Fulks, 454 F.3d 410, 413 (4th
Cir. 2006). Moreover, “[e]videntiary rulings are subject to
harmless error review.” United States v. Johnson, 617 F.3d 286,
292 (4th Cir. 2010) (citations omitted). “[I]n order to find a
district court’s error harmless, we 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
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was not substantially swayed by the error.” Id. (internal
quotation marks and citations omitted).
We have thoroughly reviewed the record and the
relevant legal authorities and conclude that the district court
did not abuse its discretion in admitting the witness’
impeachment testimony regarding extrinsic evidence for purposes
of contradicting English’s testimony. See Fed. R. Evid. 607,
608(b) & advisory committee note to 2003 amendments (Rule
608(b)’s application is limited to impeachment of a witness’
character for truthfulness and therefore does not apply to
extrinsic evidence offered for other grounds of impeachment such
as contradiction). Here, the witness’ testimony did not concern
prior inconsistent statements otherwise inadmissible as hearsay.
Cf. United States v. Morlang, 531 F.2d 183 (4th Cir. 1975)
(impeachment testimony may not be used as a guise to admit
otherwise inadmissible evidence such as prior inconsistent
statements, which are inadmissible hearsay). We further
conclude that admission of this witness’ testimony did not
violate English’ due process rights. See United States v.
Burkhardt, 484 F. App’x 801 (4th Cir. 2012) (unpublished).
Finally, as we conclude that the district court did not commit
error, we need not address whether any error was harmful.
Accordingly, we affirm the district court’s order. We
dispense with oral argument because the facts and legal
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contentions are adequately presented in the materials before
this court and argument would not aid in the decisional process.
AFFIRMED
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