                                                       [DO NOT PUBLISH]

            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      _______________________                   FILED
                                                      U.S. COURT OF APPEALS
                            No. 04-14104                ELEVENTH CIRCUIT
                                                            APRIL 19, 2005
                        Non-Argument Calendar
                                                         THOMAS K. KAHN
                      _______________________
                                                               CLERK

                  D. C. Docket No. 03-00003-CR-MMP


UNITED STATES OF AMERICA,

                                                    Plaintiff-Appellee,

                                 versus

LEROY HAMPTON,

                                                    Defendant-Appellant.



                     _________________________

               Appeal from the United States District Court
                   for the Northern District of Florida
                     _________________________

                            (April 19, 2005)


Before CARNES, MARCUS and KRAVITCH, Circuit Judges.

PER CURIAM:
      Defendant-Appellant Leroy Hampton was indicted for knowingly possessing

a firearm in and affecting interstate commerce after having been convicted of a crime

punishable for a term of imprisonment exceeding one year. See 18 U.S.C. §§ 922(g)

and 924(e). Hampton stipulated that he had been convicted of a qualifying crime.

Before trial, he filed notice of his intent to introduce evidence of insanity as part of

his defense. After a hearing, the court found him competent to stand trial. He was

convicted, and now appeals that conviction.

      Evidence at trial showed that on the morning of October 13, 2002, Hampton

entered the Tabernacle of Praise Restoration Outreach Center and Church of God in

Christ, in Gainesville, Florida. He told the assistant pastor that he wanted to attend

church that morning; he then said that someone had been chasing him the night before

but that he was no longer afraid because he had “this.” As he said the word “this,”

he lifted his shirt to reveal a small silver gun tucked into the waistband of his pants.

At the assistant pastor’s urging, Hampton put the gun away. Upon being informed,

the pastor told the defendant he would not be allowed to remain at the church and

gave instructions to call the police.

      When the police arrived, they handcuffed Hampton, who no longer had the gun

on his person. A parishoner had seen Hampton enter an office near the church’s




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waiting room, remain there for “at least a minute or two,” and then leave. The

arresting officers found the gun in a trash can in the office Hampton had entered.

      Special Agent Don Williams of the Bureau of Alcohol, Tobacco and Firearms

(“ATF”) testified, without objection, as an expert in the field of firearms

identification and point of origin. Agent Williams testified that the gun Hampton

possessed on the morning of October 13, 2002 had traveled in interstate commerce

from California to Florida. On cross-examination, Williams admitted that he had

originally misidentified the gun, but noted that this misidentification was the result

of a clerical error; he was working off a written description and never saw the gun

in person until much later. Williams admitted that he had not checked the serial

number on the gun; however, the gun bore the markings and design of Loricin

Engineering, Inc., which had been located in California until it went out of business.

Williams explained that to manufacture a copy of the gun locally would have been

prohibitively expensive and time- and effort-intensive. Hampton subsequently moved

for a judgment of acquittal, partially based on the government’s failure to carry its

burden of proof on the interstate commerce element of the crime. The district court

denied the motion.

      In presenting its case, the defense called Dr. Harry Krop as a psychiatric expert.

Dr. Krop had examined Hampton on three prior occasions, and spent six and one-half

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hours with him for purposes of the present case. Dr. Krop testified that each of

Hampton’s three prior hospitalizations resulted from the fact that Hampton suffered

from schizophrenia, paranoid type, the major symptoms of which are delusions and

hallucinations. Although he is a paranoid schizophrenic, Hampton has never been

declared insane. While Hampton was imprisoned, his symptoms were controlled with

medication, but he apparently stopped taking his medication after his release.

      On cross-examination, Dr. Krop testified that schizophrenia, paranoid type,

does not in and of itself indicate that “a person” would be unable to understand the

nature, quality, or wrongfulness of his acts. The defense objected on the basis that

this question went to the ultimate issue of Hampton’s mental state, but the district

court overruled the objection. Dr. Krop also testified that a person could be found

incompetent to stand trial yet be considered legally sane. Over the defense’s

objections, Dr. Krop also testified that Hampton’s actions were goal-directed and that

he understood what he was doing when he put the gun in his possession. In its

rebuttal, the prosecution called Dr. Miguel Gutierrez, its own psychiatric expert, who

similarly testified that a finding that a person suffers from schizophrenia, paranoid

type, does not in and of itself indicate that the person is unable to understand the

nature, quality, or wrongfulness of his acts.




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      At the charging conference, the defense suggested that in defining the term

“clear and convincing evidence” in connection with the insanity defense, the court

employ the term “firm conviction.” The court, however, used the term “highly

probable” instead.

      Hampton brings this appeal on three grounds. The first is the denial of the

motion for judgment of acquittal, based on the alleged lack of sufficient evidence to

demonstrate the jurisdictional element of the crime. This court reviews such a motion

de novo, viewing the evidence “in the light most favorable to the government in

determining whether a reasonable jury could have concluded beyond a reasonable

doubt” that the defendant was guilty. Butcher v. United States, 368 F.3d 1290, 1297

(11th Cir. 2004).

      To establish the jurisdictional element of the crime under 18 U.S.C. § 922(g),

the government must prove that the firearm moved in interstate commerce at any

time. United States v. Wilson, 159 F.3d 280, 286-87 (11th Cir. 1998). Generally,

expert testimony that the gun traveled in interstate commerce is sufficient. United

States v. Scott, 263 F.3d 1270, 1274 (11th Cir. 2001). Although direct evidence of

interstate travel is preferable, evidence that enables the jury to infer interstate travel

may be sufficient. United States v. Clay, 335 F.3d 1281, 1287 (11th Cir. 2004).

Hampton argues that Special Agent Williams, the expert who identified the gun,

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failed to use the proper methodology to determine whether it had traveled in interstate

commerce and failed to account for the theory that the gun could have been a knock-

off manufactured in Florida.

      Viewing the evidence in the light most favorable to the government, we hold

that it was sufficient to survive the motion for judgment of acquittal. We have held

previously that “[t]he evidence may be sufficient though it does not exclude every

reasonable hypothesis of innocence or [is not] wholly inconsistent with every

conclusion except that of guilt. . . . A jury is free to choose among reasonable

constructions of the evidence.” United States v. Montes-Cardenas, 746 F.2d 771, 778

(11th Cir. 1984) (internal quotation marks and citation omitted). Here, the expert

witness’ testimony as to the expense, time, and effort involved in creating a knock-off

of the gun were sufficient to allow the jury to infer that it traveled in interstate

commerce. Contrary to Hampton’s assertion, Special Agent Williams was not

required to use the serial number to trace the gun, although such proof may be the

best evidence of movement in interstate commerce. Indeed, we found in Clay that the

evidence was sufficient to meet the jurisdictional requirement of § 922(g) because the

firearm had the inscription “Colt Manufacturing Company, Hartford, CT,” and the

firearm was seized in Georgia. Clay, 335 F.3d at 1287.




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      Hampton’s second ground for appeal is that the district court erred in admitting

expert testimony on the ultimate issue of his sanity, in violation of Federal Rule of

Evidence 704. We review the district court’s decision to admit or exclude expert

testimony for abuse of discretion, deferring to the district court’s ruling unless the

ruling is “manifestly erroneous.” Quiet Tech, DC-8, Inc. v. Hurel-Dubois UK Ltd.,

326 F.3d 1333, 1340 (11th Cir. 2003) (quoting Gen. Elec. Co. v. Joiner, 522 U.S. 136,

142 (1997)). Hampton argues that his expert, Dr. Krop, and the government’s expert,

Dr. Gutierrez, improperly testified on the ultimate issue of Hampton’s sanity, because

each question was prefaced with a statement about Hampton’s symptoms or behavior,

even though the questions themselves were in the form of hypotheticals.

      Under Rule 704(b), “[n]o expert witness testifying with respect to the mental

state or condition of a defendant in a criminal case may state an opinion or inference

as to whether the defendant did or did not have the mental state or condition

constituting an element of the crime charged or a defense thereto.” Expert testimony

concerning the nature of a defendant’s mental disease or defect, however, is

admissible, including evidence of the disease or defect’s typical effect on a person’s

mental state. United States v. Davis, 835 F.3d 274, 276 (11th Cir. 1998). Although

a “thinly veiled hypothetical” may not be used to circumvent Rule 704(b), the rule




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allows the witness to explain the disease and its typical effect on a person’s mental

state. United States v. Manley, 893 F.2d 1221, 1223 (11th Cir. 1990).

      In the present case, the expert witnesses’ testimony served the same purpose

we condoned in Manley—it explained the disease and its typical effect on a person’s

mental state. Contrary to Hampton’s assertions, the questions to Drs. Krop and

Gutierrez were not “thinly veiled hypotheticals,” but were designed to elicit

information about whether a paranoid schizophrenic could undertstand the nature,

quality, or wrongfulness of his acts, and about whether a person could previously

have been deemed incompetent to stand trial and yet be legally sane. As such, the

district court judge properly overruled Hampton’s objections to the introduction of

such evidence.

      Hampton’s third ground for appeal is that the district court erred in charging

the jury on the definition of “clear and convincing” evidence, which was critical to

his insanity defense. Hampton claims that the court erred in two ways: (1) by using

the phrase “highly probable” instead of “firm conviction” in its jury charge, and (2)

by allowing the Government to use the form “high probability” in its closing

argument, thereby introducing a “mathematical concept” inappropriate for jury

deliberations. We review the district court’s jury instructions for abuse of discretion,

and do not reverse unless there is a reasonable likelihood that any error affected the

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defendant’s substantial rights. United States v. Wright, 392 F.3d 1269, 1277 (11th

Cir. 2004).

      Under federal law, a defendant must prove the defense of insanity by clear and

convincing evidence. 18 U.S.C. § 17. We have adopted the term “highly probable”

as part of the definition of “clear and convincing” in the context of the insanity

defense. United States v. Owens, 854 F.2d 432, 435-36 n.8 (11th Cir. 1988). The

district court employed the term “highly probable” based on our case law, and

therefore did not commit reversible error in using it.

      Hampton’s argument that the phrase “high probability” was confusing to jurors

because it introduced a mathematical concept is similarly without merit. As the

Government points out, “highly probable” is merely the adjectival form of the noun

phrase “high probability.” Both describe the same concept—a concept which may

have a mathematical meaning, but which also has a specific legal meaning in

describing the burden of proof for the insanity defense under our circuit’s law. The

district court did not err in allowing the Government to use the phrase “high

probability” in its closing argument.

      For the foregoing reasons, the conviction is AFFIRMED.




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