
USCA1 Opinion

	




          February 26, 1993                                [Not for Publication]                                [Not for Publication]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 92-1828                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                               DWIGHT ERIC CHADBOURNE,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                     [Hon. Morton A. Brody, U.S. District Judge]                                            ___________________                                 ____________________                                        Before                               Torruella, Cyr and Stahl,                                   Circuit Judges.                                   ______________                                 ____________________             Jerome B. Goldsmith for appellant.             ___________________             Margaret  D. McGaughey,  Assistant  United States  Attorney, with             ______________________        whom  Richard S. Cohen, United States Attorney, and James L. McCarthy,              ________________                              _________________        Assistant United States Attorney were on brief for appellee.                                 ____________________                                 ____________________                    Per Curiam.  Defendant  asserts that the district court                    Per Curiam.                    __________          committed reversible error  in its bench-trial ruling  precluding          the following inquiry of defendant's expert:                          Doctor, could that severe  manic episode                    you  testified Eric suffered from at the time                    of the  offense have caused him  to have been                    unable to appreciate  the nature and  quality                    or the wrongfulness of his acts?          For several reasons,  we believe the issue  defendant attempts to          raise on appeal need not be reached.1                    First, though it sustained the government's Rule 704(b)          objection, the district court did not preclude the  quoted inqui-          ry.   Rather,  the court  went on  to state:   "You  can ask  the          question for whatever weight the Court wishes to give it. . . ."2                    Second,  and  more to  the  point,  the district  court          expressly found that there  was insufficient evidence that defen-          dant  suffered from "a severe  mental disease or  defect" when he                                        ____________________               1The  sole basis for the  appeal is that  the district court          misapplied Federal Evidence Rule 704(b), which provides:                   (b)   No 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  of a defense thereto.  Such ultimate issues               are matters for the trier of fact alone.          Fed. R. Evid. 704(b).               2The Court further  explained:  "The  point being that  it's          the trier of fact  that makes that ultimate factual  decision and          not the expert under 704."          robbed the bank.   Absent an appellate challenge to  the district          court's predicate finding, and there is none, there can have been          no  error  in the  exclusion  of  defense counsel's  hypothetical          question.                    Third, all else aside, the  ruling is firmly rooted  in          Rule 702, which empowers  the court to allow expert  testimony if          it could  "assist the trier of fact to understand the evidence or          to determine a fact in issue. . . ."  Fed. R.  Evid. 702.  As the          trier of  fact, the district  court judge simply  determined that          the proffered expert testimony would not aid its determination of          the ultimate issue.  There could be no abuse of discretion in its          Rule 702  exclusion, particularly in  view of  its invitation  to          proceed with the  testimony for whatever  weight the court  might          decide to give it.                    Affirmed.                    ________                                          3
