February 26, 1993
                      [Not for Publication]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
