U.S. v. Wright, s. 85-5206

• Decision Date: 18 February 1986
• Docket Number: Nos. 85-5206,85-5207,s. 85-5206
• Citation: 783 F.2d 1091,251 U.S.App.D.C. 276
• Parties: , 19 Fed. R. Evid. Serv. 1473 UNITED STATES of America v. Glenn I. WRIGHT, Appellant. UNITED STATES of America v. Dennis MOSS, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1091

783 F.2d 1091

251 U.S.App.D.C. 276, 19 Fed. R. Evid. Serv. 1473

UNITED STATES of America v. Glenn I. WRIGHT, Appellant.

UNITED STATES of America v. Dennis MOSS, Appellant.

Nos. 85-5206, 85-5207.

United States Court of Appeals, District of Columbia Circuit.

Argued Dec. 9, 1985.

Decided Feb. 18, 1986.

Lawrence H. Schwartz, Washington, D.C., Appointed by this Court, for appellant in No. 85-5206.

William E. O'Brien, Arlington, Va., Appointed by this Court, for appellant in No. 85-5207.

Andrew Fois, Asst. U.S. Atty., with whom Joseph E. diGenova, U.S. Atty., Michael W. Farrell, Thomas J. Tourish, Jr. and Charles J. Harkins, Jr., Asst. U.S. Attys., Washington, D.C., were on brief for appellee in Nos. 85-5206 and 85-5207.

Before WALD and STARR, Circuit Judges, and McGOWAN, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge WALD.

WALD, Circuit Judge:

Glenn I. Wright and Dennis Moss were tried jointly before a jury on several charges stemming from the kidnapping of a wealthy player from a bridge tournament in Washington, D.C. At trial, Moss testified that he carried out the abduction at the direction of Wright but asserted that he participated in the kidnapping only under duress exerted by Wright. Wright, whom all witnesses portrayed as the principal planner and instigator of the kidnapping, presented an insanity defense. The jury found each defendant guilty of the charges against him, and these appeals followed. We now affirm the conviction of each defendant. We find that the trial judge did not err in rejecting Wright's motions for severance or in permitting Wright to take the stand and to agree to certain stipulations. We also find that although the trial judge made occasional erroneous evidentiary rulings affecting Moss, Moss incurred no substantial prejudice from the cumulative effect of these erroneous rulings. ¹

I. BACKGROUND

The facts of the actual kidnapping were undisputed at trial. Edith Rosenkranz was abducted at gunpoint from a Washington, D.C. hotel where she was participating with her husband in a contract bridge tournament. The abduction was carried out by Dennis Moss on July 19, 1984. The events leading up to the kidnapping, also in large part undisputed, are these: In July of 1984, Wright's Texas-based financial consulting business was collapsing, and by July 10th Wright had formed a plan to kidnap a wealthy female bridge player in Washington, D.C. On that day, Moss and Wright met for the first time at the Midnight Sun Bar in Houston, Texas. The exact circumstances surrounding this meeting were the subject of controversy at trial. Wright testified that he met Moss by chance at the bar, that he probed Moss about his willingness to engage in a daring yet profitable undertaking, and that Moss said he had the courage to go along with Wright's money-making scheme. Moss, on the other hand, testified that he went to the Midnight Sun Bar because he received a phone call and that while he was at the bar Wright threatened to kill both Moss and his family if Moss did not cooperate in an undisclosed scheme. Moss also testified that his fear of Wright as a result of these threats was rational because Wright revealed an awareness that Moss had previously laundered money for narcotics dealers in Florida and that Moss' house had been burned down when he attempted to withdraw from this activity. According to Moss, Wright also knew certain details about Moss' family in Florida.

The meeting at the Midnight Sun Bar was followed the next day by a meeting at Wright's apartment. On July 13th, Wright flew to Washington, D.C. with his roommate Orland Tolden ² and checked into a hotel in Thomas Circle. Moss went to visit his sister in Norfolk and then drove to meet Wright in Washington, D.C. Wright's original plan called for Moss to impersonate a bridge tournament referee and lead Mrs. Rosenkranz away from the tournament in which she and her husband were participating. This effort failed. The next day Wright gave Moss a gun and sent Moss back to try again. This time Moss succeeded. Moss drove his victim to Norfolk, Virginia and held her inside the Econo Lodge Motel until July 21st. Both Moss and Mrs. Rosenkranz testified that Moss repeatedly told Mrs. Rosenkranz that someone had taken his baby daughter, that people were watching them, and that both Moss and Mrs. Rosenkranz might be killed if she disobeyed Moss. On July 21st, Moss drove back to Washington with Mrs. Rosenkranz. He then called the victim's husband and instructed him to place a million dollars in ransom money underneath a car in the parking lot of a Washington area hospital. After collecting the money, Moss drove to the hotel in Thomas Circle and picked up Wright. Wright and Moss proceeded to the Washington Monument where they released their victim unharmed. Immediately thereafter, the FBI arrested Wright and Moss.

II. WRIGHT'S ARGUMENTS ON APPEAL

A. Severance on the Basis of Inconsistent Defenses

Wright argues on appeal that the trial judge erred in denying his repeated motions for severance. Wright requested severance on the ground that he and Moss would assert inconsistent and hostile defenses. The decision to sever the trial of a defendant who has been properly joined for trial with a co-defendant under Rule 8 of the Federal Rules of Criminal Procedure is committed by Rule 14 of the Rules of Criminal Procedure to the discretion of the trial court; an appellate court can review a denial of a motion for severance only for abuse of discretion. See, e.g., United States v. Haldeman, 559 F.2d 31, 71 (D.C.Cir.1976), cert. denied, 431 U.S. 933, 97 S.Ct. 2641, 53 L.Ed.2d 250 (1977). What constitutes an abuse of discretion necessarily depends on the facts of each case. United States v. Johnson, 478 F.2d 1129, 1133 (5th Cir.1973). This circuit has repeatedly articulated, however, that the denial of a severance motion generally constitutes an abuse of discretion when "the defendants present conflicting and irreconcilable defenses and there is a danger that the jury will unjustifiably infer that this conflict alone demonstrates that both are guilty." Rhone v. United States, 365 F.2d 980, 981 (D.C.Cir.1966); see also United States v. Haldeman, 559 F.2d at 71; United States v. Ehrlichman, 546 F.2d 910, 929 (D.C.Cir.1976), cert. denied, 429 U.S. 1120, 97 S.Ct. 1155, 51 L.Ed.2d 570 (1977). Reversals under this standard, however, require a high degree of conflict between the defenses. In United States v. Ehrlichman, 546 F.2d at 929, for example, we declined to overturn the denial of severance because "[t]here would have been no logical inconsistency in the jury's acceptance of the defenses presented by both defendants." After examining the details of Wright's theory of insanity and Moss' theory of duress, we do not find that the defenses present a sufficient degree of antagonism to require reversal of the trial judge. The presence of some hostility between Wright and Moss, and Moss' strategy of exculpating himself by inculpating Wright do not by themselves require separate trials. E.g., United States v. Ehrlichman, 546 F.2d at 929.

Wright points to two specific areas of conflict between his insanity defense and Moss' duress defense which he argues mandate severance. First, Wright argues that in order to present a duress defense, Moss had to show that Wright exercised control over Moss while Wright's insanity defense required Wright to show that he was unable to control himself. This argument for severance rests on an illusory conflict between the two defenses and greatly overreads Wright's insanity defense. To present an insanity defense under the then applicable law in the District of Columbia, Wright had to show that at the time of the kidnapping he was suffering from a "mental disease or defect" and that as a result of that disease or defect he lacked substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law. See United States v. Brawner, 471 F.2d 969 (D.C.Cir.1972). Wright's psychiatrist, Dr. Hirschman, testified that Wright suffered from a narcissistic personality disorder which amounted to a mental disease or defect and that this disorder rendered Wright unable to appreciate the wrongfulness of his actions. Nothing in Dr. Hirschman's theory of Wright's mental illness was inconsistent with Wright's potential to coerce Moss into carrying out the kidnapping scheme. To the contrary, Dr. Hirschman testified both that Wright was aggressive and that his thought processes were precise and logical. Dr. Hirschman also implied that Wright was quite capable of manipulating others. Tr. 957, 973. Dr. Hirschman never suggested that Wright's insanity caused him to be "out of control" in a sense that would preclude him from coercing Moss into carrying out the kidnapping.

The second purported conflict between the defenses of Wright and Moss concerns the death of Wright's former lover Tony Ivey. In Dr. Hirschman's opinion, one substantial factor contributing to Wright's mental illness and to the resulting kidnapping scheme was Wright's anguish over the violent murder of his lover, Tony Ivey. According to Dr. Hirschman, the death of Ivey, when compounded by the loss of Wright's mother from Alzheimer's disease and by his financial ruin, exacerbated his mental disorder and drove him to the kidnapping. Dr. Hirschman explained that Wright had an overpowering need to take back what he thought society owed him for taking his mother, his lover and his business.

Wright's defense presented Ivey as one of the few people Wright had ever loved, a person whose violent death was a substantial cause of the kidnapping scheme. Moss' defense presented the Wright-Ivey relationship in an entirely different light. Moss testified that Wright told Moss that he had managed to have Ivey murdered without incurring police suspicion. The implication drawn by Moss was that Wright could also arrange...