United States v. Chadbourne ( 1993 )

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                                [Not for Publication]
                                [Not for Publication]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.


                                 ____________________


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                    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



                              
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               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.
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