                  UNITED STATES COURT OF APPEALS

                      FOR THE FIFTH CIRCUIT


                          __________________

                              No. 92-1835
                           Summary Calendar
                          __________________



     UNITED STATES OF AMERICA,

                                         Plaintiff-Appellee,

                                versus

     MARLON KEITH BARTON,

                                         Defendant-Appellant.

         ______________________________________________

      Appeal from the United States District Court for the
                   Northern District of Texas
         ______________________________________________
                         (May 13, 1993)
                      (                  )


Before GARWOOD, JONES and EMILIO M. GARZA, Circuit Judges.

GARWOOD, Circuit Judge:

     Defendant-appellant, Marlon Keith Barton (Barton), appeals his

conviction for threatening by mail to kill the President of the

United States on the sole ground that the district court erred in

denying his motion for judgment of acquittal based on the assertion

that he was insane when he committed the offense.       Because the

evidence was not such as to compel a finding that Barton was insane

at the time of the offense, we affirm.

                   Facts and Proceedings Below

     Barton's story begins on April 10, 1991, approximately three
months before he wrote the threatening letter, at the Dallas

Central Appraisal District where he worked.1       On that morning,

Barton acted strangely at work.    Barton arrived at work an hour or

so earlier than he normally did, but refused to speak to any of his

coworkers.    One coworker asked him to come to her office, which he

did.    She asked him questions, but he remained mute and simply

stared at her.      Later he returned to his desk and sat at his

computer, neither working nor speaking to anyone.          Soon, the

personnel manager brought Barton to the hospital and attempted to

have him admitted.     Initially Barton manifested his consent by

filling out the admitting forms, but he then tore up the forms.

The hospital refused to admit him and Barton went home.

       The next day, Barton surrendered to the Dallas County Jail for

a probation violation of failing to regularly contact his probation

officer. Barton remained in jail from April 11, 1991, to August 2,

1991.

       About a week following the events of April 10, one of Barton's

coworkers called the jail and spoke to Barton.   Barton spoke to the

worker and apologized for his actions and the problems he had

caused.

       A few days after his April 10 incarceration, Barton's Aunt

Darleen came to visit him.    During the visit Barton was spaced out

and unresponsive.     About two weeks later, Barton wrote Darleen

concerning the visit saying that he had erred in violating the

terms of his probation and that he wanted to start life over again


1
     Prior to this time, Barton had been a good worker for
fifteen months.

                                  2
when released.

      While in jail, Barton wrote the following letter to President

Bush:      "Hello, Mr. Bush, I'm angered and filled with hatred that

you sent my brothers over to fight a war we knew nothing about or

had any reason being over there.          For that I promise to kill you

when I get out.      I hate your ass to death."2       Barton signed the

letter, and his return address appears on the envelope.3

      On July 15, 1991, a White House mail analyst received the

letter and turned it over to the Secret Service.           Not long after,

Barton was arrested on the instant charge of threatening to kill

the President.

      After his arrest, the district court ordered a mental health

evaluation of Barton to determine his competency to stand trial.

Initially, the Metropolitan Correctional Center at Miami found that

Barton was suffering from a severe mental illness, was incompetent

to stand trial, and was in need of psychiatric care.             He was then

sent to the Federal Medical Center in Rochester for an evaluation

of   his    competency   and   criminal   responsibility   and   treatment.

Barton arrived there on January 7, 1992.          Staff psychologist Dr.

Thomas Kucharsky said that Barton arrived at the center mute,

bordering on catatonia, and with a passive bland affect.            With the

court's permission, Kucharsky treated and involuntarily medicated

Barton.     Although ill, Barton still ate, drank, and took care of


2
     Barton has no real brothers, but he may have been using the
word in a more generic sense.
3
     There is no doubt that Barton wrote the letter. It was in
his handwriting, contained his fingerprints, and his counsel
basically admitted it during closing arguments at trial.

                                      3
his personal hygiene.

     Kucharsky diagnosed Barton as suffering from Brief Reactive

Psychosis, a mental illness with symptoms "essentially the same as

symptoms of schizophrenia.        The major distinction being that the

duration of the illness is less than six months."

     Kucharsky opined that within a reasonable medical certainty

Barton was suffering from this disease and therefore it was "highly

likely" that he was unable to appreciate the wrongfulness of his

actions when he wrote the letter to the President.          Kucharsky then

said, however, that he would "qualify that a bit" and that he had

"submitted a report to the court that stated that a definitive

opinion regarding criminal responsibility or the appreciation of

wrongfulness could not be given."          Kucharsky explained this by

stating that he was missing some "very important" information that

Barton   had   been   unwilling   or   unable   to   communicateSQBarton's

motivation for sending the letter.

     Barton recovered enough to stand trial.             He was convicted

under 18 U.S.C. § 871, which makes it a crime to send a letter in

the mail threatening to kill the President.              At trial, Barton

raised the defense of insanity.        Implicit in the jury's verdict of

guilty was its finding that Barton was not shown to be criminally

insaneSQunable to tell right from wrongSQwhen he wrote the letter.4

Barton moved for a judgment of acquittal on the ground that the

evidence established he was insane at the time the offense was



4
     The trial focused on the issue of insanity and the verdict
form contained three options: guilty, not guilty, and not guilty
by reason of insanity.

                                       4
committed.    This motion was denied and Barton appeals.                   His sole

contention on appeal is that the evidence conclusively established

his insanity defense.

                                   Discussion

     Normally, "[i]n reviewing a motion for judgment of acquittal,

we `consider the evidence as a whole taken in the light most

favorable    to   the    government,         together     with    all    legitimate

inferences to be drawn therefrom to determine whether a rational

trier of fact could have found guilt beyond a reasonable doubt.'"

United   States   v.    Turner,    960   F.2d      461,   465    (5th   Cir.   1992)

(citations and footnote omitted); see United States v. Sanchez, 961

F.2d 1169, 1173 (5th Cir.), cert. denied, 113 S. Ct. 330 (1992);

United States v. Newman, 889 F.2d 88, 92 (6th Cir. 1989), cert.

denied, 110 S.Ct. 2566 (1990).               Here, our review is different

because insanity is an affirmative defense for which the defendant,

not the government, bears the burden of proof at trial by clear and

convincing evidence.        18 U.S.C. § 17 (1988).                Accordingly, we

should   reject   the    jury     verdict     in   this   respect       only   if   no

reasonable trier of fact could have failed to find that the

defendant's criminal insanity at the time of the offense was

established by clear and convincing evidence.5                   We still view the


5
     The federal insanity statute provides:

          "It is an affirmative defense to a prosecution
     under any Federal statute that, at the time of the
     commission of the acts constituting the offense, the
     defendant, as a result of a severe mental disease or
     defect, was unable to appreciate the nature and quality
     or the wrongfulness of his acts. Mental disease or
     defect does not otherwise constitute a defense."
        The defendant has the burden of proving the insanity

                                         5
evidence in the light most favorable to the government since the

government prevailed below.

     Although there is substantial evidence that he was insane

beginning in April of 1991, we think a reasonable fact finder could

have concluded that Barton failed to prove by clear and convincing

evidence that at the time of the offense in July 1991 he was by

reason of his mental illness unable to appreciate the nature and

quality or the wrongfulness of his acts.6

     There is no definitive proof that Barton was unable to tell

right from wrong at the time he wrote the letter.         Although

considerable evidence showed that he was mentally ill before and

during his first month of incarceration in the Dallas jail, some of

the evidence about Barton's illness from this period suggests that

he may have been able to determine right from wrong.   A week after

Barton went to jail, around April 18, one of Barton's coworkers

called the jail and spoke to Barton.   Barton spoke to the worker

and apologized for his actions and the problems he had caused.

This suggests that Barton could appreciate the nature and quality

and the wrongfulness of his conduct.    Similarly, after his Aunt

Darleen's visit, Barton wrote her a letter in which he indicated


     defense by clear and convincing evidence."   18 U.S.C. §
     17(a) & (b) (1988).
6
     Clear and convincing evidence is "that weight of proof which
`produces in the mind of the trier of fact a firm belief or
conviction as to the truth of the allegations sought to be
established, evidence so clear, direct and weighty and convincing
as to enable the fact finder to come to a clear conviction,
without hesitancy, of the truth of the precise facts' of the
case." In Re Medrano, 956 F.2d 101, 102 (5th Cir. 1992) (quoting
Cruzan v. Director, Missouri Dept. of Health, 110 S.Ct. 2841,
2855 (1990).

                                6
that he was sorry and wanted to change his life.

     The only evidence showing that Barton was so ill that he was

unable to determine right from wrong, during the period when he

wrote the letter in July, was the expert opinion of Dr. Kucharsky

based   on   his   examination    of   Barton   about   six   months   later.

However, Kucharsky qualified his opinion saying that he lacked some

important information from Barton.          From Kucharsky's testimony it

is clear that Barton was suffering the effects of a mental illness

when Kucharsky examined him.       It is less clear from Kucharsky that

when the crime occurred six months previously, Barton was so ill

that he could not determine right from wrong. Kucharsky noted that

the effects of this disease normally last less than six months.

     And, the fact that he was able to write the letter to the

President and the letter to his aunt are suggestive that Barton may

have appreciated the nature of his conduct.

     Fact finders are entitled to make credibility determinations

about witnesses, even expert witnesses.          "[T]he questions of the

credibility and weight of expert opinion testimony are for the

trier of facts, . . . such testimony is ordinarily not conclusive

even where it is uncontradicted."          Mims v. United States, 375 F.2d

135, 140 (5th Cir. 1967).        In light of the facts that Kucharsky's

opinion was qualified and that no other testimony established

Barton's mental condition in July 1991, when he wrote the letter,

a reasonable fact finder could have concluded that Barton failed to

prove, by clear and convincing evidence, that he was insane within

the meaning of section 17(a) when he wrote the letter.

     Barton argues that the fact that he signed his real name to

                                       7
the letter and gave his return address proved that he was unable to

tell right from wrong because sane people who commit illegal acts

would not leave such obvious evidence of their conduct.            While it

is true that a person's attempt to hide his commission of a crime

suggests that the person knows the action is wrongful or illegal,

see United States v. Freeman, 804 F.2d 1574, 1577 (11th Cir. 1986),

we cannot say that disclosure of one's participation in an illegal

act necessarily demonstrates an inability to appreciate the nature

and quality or the wrongfulness of the conduct.          Sane people openly

commit offenses and confess to crimes they could not otherwise be

convicted of.    Barton's placing his name on the letter does not

conclusively establish that he was then unable to determine right

from wrong.

     Barton notes that the government did not offer any rebuttal

evidence or contrary expert opinions.         Because Barton, and not the

government, had the burden of proof, there was no inflexible

requirement for the United States to offer rebuttal evidence in the

form of its own expert witnesses or otherwise.           See, e.g. Mims v.

United States, 375 F.2d 135, 140-41 (5th Cir. 1967); United States

v. Bennett, 908 F.2d 189, 195 (7th Cir.), cert. denied, 111 S.Ct.

534 (1990)    ("The   government   is   not   required    to   rebut   expert

testimony with its own expert as it may accomplish the same result

by presenting lay witnesses and other evidence and by undermining

the defense expert's credibility through cross examination").

     It is not sufficient here that Barton's evidence might appear

to us, were we the finder of fact, to be clear and convincing.             We

are not fact finders and do not assess the credibility of the

                                    8
testimony or the weight of the evidence.     These are the jury's

responsibilities.   Sanchez, 961 F.2d at 1173.   This deference is

particularly appropriate where the jury has found against a party

having the burden of proof by clear and convincing evidence.     As

the D.C. Circuit said,

     "when insanity is raised as a defense to crime, a
     judgment of acquittal by reason thereof, we have
     emphasized, should be granted only in exceptional cases.
     And `in view of the complicated nature of the decision to
     be made SQintertwining moral, legal, and medical
     judgmentsSQit will require an unusually strong showing to
     induce us to reverse a conviction because the judge left
     the critical issue of criminal responsibility with the
     jury.' We think it clear in this case that the trial
     judge left it where it belonged."      Gaskins v. United
     States, 410 F.2d 987, 990-91 (D.C. Cir. 1967) (citations
     and footnotes omitted).

                             Conclusion

     Because a reasonable jury could have found that Barton failed

to prove by clear and convincing evidence that when he threatened

to kill the President he was so mentally ill that he was unable to

appreciate the nature and quality or the wrongfulness of his

conduct, the district court did not err in denying Barton's motion

for judgment of acquittal.   Accordingly, Barton's conviction is

                                                         AFFIRMED.




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