U.S. v. Crosby

• Decision Date: 18 August 1983
• Docket Number: No. 82-3604,82-3604
• Citation: 713 F.2d 1066
• Parties: , 13 Fed. R. Evid. Serv. 1829 UNITED STATES of America, Plaintiff-Appellee, v. Gary John CROSBY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1066

713 F.2d 1066

71 A.L.R.Fed. 665, 13 Fed. R. Evid. Serv. 1829

UNITED STATES of America, Plaintiff-Appellee, v. Gary John CROSBY, Defendant-Appellant.

No. 82-3604.

United States Court of Appeals, Fifth Circuit.

Aug. 18, 1983.

Virginia Laughlin Schlueter, Federal Public Defender, Julian R. Murray, Jr., New Orleans, La., for defendant-appellant.

John P. Volz, U.S. Atty., New Orleans, La., Harry W. McSherry, Jr., Curtis L. Collier, Asst. U.S. Attys., for plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before THORNBERRY, GEE and WILLIAMS, Circuit Judges.

JERRE S. WILLIAMS, Circuit Judge.

On Sunday morning, January 31, 1982, Gary John Crosby came to the home of his friend, Dominick Nuccio, and borrowed a shotgun from Nuccio's young son, ostensibly to go hunting. Approximately thirty minutes to an hour later, Crosby drove to the Veterans Administration (VA) Hospital in New Orleans. He parked his automobile and walked around the hospital to the main entrance, leaving his shotgun in the car. Once inside the building, Crosby walked through the main lobby and past the emergency room nurse's station, and then exited the building to the ambulance parking area where he had left his car. Minutes later Crosby reentered the hospital, this time with his shotgun. He walked directly into the emergency room nurses station where two VA nurses, George Sharman and Mildred Moore, and two doctors, Charles Richard and Bung Mui, were working. Jess Porter, a patient, and his daughter, Patricia, were in an adjacent room. Crosby brandished the shotgun and began using profane language, generally voicing his dissatisfaction with the Veterans Administration and the way it had treated him. Attempts by the doctors to calm Crosby failed, but within fifteen minutes all the victims were released except for nurse George Sharman. For the next two to three hours Crosby held Sharman in the room with the shotgun, forcing Sharman to lock all the doors and cover all the windows in the room. After approximately three hours of negotiation, officers of the New Orleans Police Department were successful in persuading Crosby to release his hostage and surrender. No one was physically harmed in the incident.

Crosby was indicted on federal charges of kidnapping, in violation of 18 U.S.C. § 1201(a)(2), and four counts of assault with intent to commit a felony, in violation of 18 U.S.C. § 113(b). ¹ At trial, Crosby did not contest that he committed the acts with which he was charged, but alleged that he was suffering from Post-Traumatic Stress Disorder (PTSD) at the time of the incident, as a result of his experiences in combat in Vietnam. ² A psychiatrist for the government who examined Crosby shortly after the events testified that he was of the opinion that Crosby could appreciate the wrongfulness of his conduct, and that he detected nothing in his examination to indicate that Crosby was suffering from PTSD. Rather, he felt that Crosby's problems were the result of an "anti-social" personality and a serious drug problem. The psychiatrist who observed Crosby during his examination at the United States Medical Center for federal prisoners in Springfield, Missouri, confirmed this opinion. Two psychiatrists testifying in behalf of Crosby said that Crosby was experiencing a dissociative reaction caused by PTSD and was therefore not criminally responsible for his conduct. ³

At the conclusion of a seven day trial, the jury returned a verdict of guilty on the kidnapping charge, and found Crosby guilty of the lesser included offense of assault with a dangerous weapon on Counts Two, Three, Four and Five. Crosby was sentenced to ten years on the kidnapping charge, to five year concurrent sentences on Counts Two, Three, and Four, and to a five year sentence on Count Five. The five year sentences were suspended on the condition that he be placed on probation for that period upon his release from confinement after serving his ten year sentence for the kidnapping conviction.

Crosby now appeals, claiming (1) that the evidence was insufficient to support his conviction for kidnapping under 18 U.S.C. § 1201(a)(2); (2) that the district court abused its discretion in excluding admission of his notes and journal at trial; (3) that the district court abused its discretion in excluding records maintained by a veteran's counseling center; (4) that the district court abused its discretion in allowing the government to impeach a defense witness as to a statement allegedly made by the witness to another party who was never called to testify; (5) that the district court abused its discretion in excluding hostage negotiation statements of a New Orleans police officer; (6) that the district court abused its discretion in refusing to qualify a witness for the defense as an expert; (7) that his trial was in violation of the Speedy Trial Act and the Sixth Amendment; and (8) that the charges against him were multiplicitous. Following review of the record, we conclude that Crosby's claims are without merit, and affirm his conviction on all counts.

I. Sufficiency of the Evidence

Crosby first challenges the sufficiency of the evidence to support his conviction of kidnapping under 18 U.S.C. § 1201(a)(2). ⁴ Under that statute, the three elements necessary for conviction are (1) knowing and willful kidnapping, (2) an intent to gain a benefit from that seizure, and (3) the kidnapping took place within the special maritime and territorial jurisdiction of the United States. Hattaway v. United States, 399 F.2d 431, 433 (5th Cir.1968). Crosby does not contest that he held Sharman against his will at gunpoint within a locale under the special jurisdiction of the United States. He does, however, argue that the evidence was insufficient to support a finding that Sharman was held, "for ransom or reward or otherwise". Specifically, Crosby argues that the kidnapping was for no purpose at all, and therefore, the conviction cannot stand.

As originally enacted, the Federal Kidnapping Act only prohibited seizure and detention "for ransom or reward". 47 Stat. 326 (1932). However, this language was soon amended to read "for ransom or reward or otherwise ". 48 Stat. 781 (1934) (emphasis added). In Gooch v. United States, 297 U.S. 124, 56 S.Ct. 395, 80 L.Ed. 522 (1936), the Supreme Court determined that the addition of this phrase indicated a congressional intent that the statute be given a broad application. Id. at 128, 56 S.Ct. at 397. Such an expansive interpretation has been uniformly adhered to by the federal courts, and it is clear that the statute does not require a motive of pecuniary profit. United States v. Healey, 376 U.S. 75, 81, 84 S.Ct. 553, 557, 11 L.Ed.2d 527 (1964); United States v. Wolford, 444 F.2d 876, 881 (D.C.Cir.1971). As explained by the District of Columbia Circuit, "[w]e think that Congress by the phrase 'or otherwise' intended to include any object of the kidnapping which the perpetrator might consider of sufficient benefit to himself to induce him to undertake it." Wolford, supra, 444 F.2d at 881, quoting United States v. Parker, 103 F.2d 857, 861 (3d Cir.1939), cert. denied, 307 U.S. 642, 59 S.Ct. 1044, 83 L.Ed. 1522 (1939).

The "benefit" to Crosby alleged by the government in this case was that he held his victim "for the purpose of influencing the actions of the Veterans Administration." Crosby concedes that this non-pecuniary motive would support a conviction. In determining whether the evidence is sufficient to establish this motive, we must view the evidence in the light most favorable to the government. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942). We reverse only if a reasonably minded jury must necessarily have entertained a reasonable doubt as to the existence of the essential elements of the crime. United States v. Davis, 666 F.2d 195, 201 (5th Cir.1982); Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979).

Crosby's contention that he expected nothing from the kidnapping is belied by the record. Robin Lamotte, an administrative assistant at the VA Hospital, testified that she heard Crosby say that he was "tired of being treated" the way he had been treated by the VA and that he "couldn't take it anymore." Dr. Mui testified that Crosby said he was "fed up" with the system and wanted to "voice his complaints about the system." Dr. Richard testified that Crosby said the "VA Hospital was not helping him and the doctors were not helping him. No one cared about what happened to him." Patricia Porter testified that Crosby told her and her father that he did not mean to hurt them, and that "his beef was with the VA." She also said that Crosby told her the VA Hospital did not care about him or any of the men who had come back from Vietnam, and that his purpose in being there was to make the VA treat him the way he should have been treated originally. Porter also overheard Crosby making a telephone call to his wife during which Crosby said he was "fed up with the VA, with the VA hospital."

We are convinced that the evidence presented in this case permitted a reasonable jury to conclude that Crosby entered the Veterans Administration Hospital and held his hostage at bay with the expectation of some benefit. There is sufficient evidence in the record to support Crosby's conviction on this charge.

II. Evidentiary Rulings

A. Exclusion of Crosby's Prior Writings and Statements

During the course of trial, Crosby attempted to introduce into evidence various out-of-court writings and oral statements. These statements included a purported "journal" compiled by Crosby between 1972 and 1982, as well as other poetry and writings Crosby alleged illustrated the mental problems he suffered as a result of his experience in Vietnam. Crosby offered these materials in evidence under Fed.R.Evid. 801(d)(1)(B), which allows admission of a prior statement...