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March 24, 1994



The opinion of the court was delivered by: WILLIAM T. HART

Defendants Rodney McNeal and Marcus Fisher are charged with kidnapping LaCrisha Jones, McNeal's common law wife, and taking her across state lines from Indiana to Illinois. They are also charged with seeking to extort a ransom from Jones and her mother. Count One of the superseding indictment charges a conspiracy to kidnap in violation of 18 U.S.C. §§ 371 and 1201. Count Two charges a substantive violation of § 1201. Count Three charges extortion in violation of the Travel Act, 18 U.S.C. § 1952. Count Four charges use of a firearm in committing the kidnapping and Travel Act offenses, in violation of 18 U.S.C. § 924(c). Melva French has also been charged with aiding and abetting each offense, but she is expected to plead guilty.

 Fisher has moved for severance so that McNeal will be available to testify on Fisher's behalf. Fisher has provided the following affidavit of McNeal

I, Rodney McNeal, depose and state under oath as follows:
1.) On December 30, 1993 I met Marcus Fisher by happenstance in the afternoon on the street.
2.) On that day I only asked him to take me to my house in Hammond, Indiana so that I could remove some of my clothes and possessions. In fact, I advised him that I did not even believe that my common law wife, LaCrisha Jones, would be at home.
3.) At no time did I discuss or plan with Marcus Fisher any activity to attempt recovery of my money held by her. As far as I told Marcus Fisher, the ride to my home to Indiana was to remove my clothes and possessions.
4.) When we reached my house, Marcus Fisher in no way participated in, encouraged or knowingly assisted in any action concerning my wife or the recovery of money that she had taken.
5.) Any course of action that I may have undertaken concerning her and the money was solely my action.
6.) Marcus Fisher neither asked for nor sought any benefit from the fact that he was merely present at the time I and my wife engaged in an active disagreement about our finances. The personal confrontation that ensued arose on the spot without any advance notice to any of the persons present.

 The government contends that this affidavit does not show that McNeal's testimony would be sufficiently exculpatory because it only addresses conduct during the initial abduction and does not address Fisher's conduct in transporting Jones to Chicago and Jones being held in custody in Chicago overnight. The government also contends that McNeal's availability to testify has not been adequately shown because McNeal conditions his testimony upon it occurring after his trial and/or sentencing.

 "When a criminal defendant seeks a severance in order to obtain exculpatory testimony a co-defendant would offer, the district court must consider three factors: (1) whether the co-defendant's testimony would in fact be exculpatory; (2) whether the co-defendant would in fact testify; and (3) whether the testimony would bear on defendant's case." United States v. Lopez, 6 F.3d 1281, 1285 (7th Cir. 1993). Neither the parties nor this court have found any Seventh Circuit case that considers whether the codefendant's statement that he will testify as long as it is after the completion of the codefendant's trial and/or sentencing satisfies the second element. The majority of other circuits have held either that such a conditional promise to testify is insufficient because defendants have no right to control the order in which a case will be tried, United States v. Ford, 276 U.S. App. D.C. 315, 870 F.2d 729, 731-32 (D.C. Cir. 1989); United States v. Parodi, 703 F.2d 768, 779-80 (4th Cir. 1983); United States v. Blanco, 844 F.2d 344, 352-53 (6th Cir.), cert. denied, 486 U.S. 1046, 100 L. Ed. 2d 626, 108 S. Ct. 2042 (1988), or that a trial court does not abuse its discretion when it denies severance on the ground that the willingness to testify is conditional, United States v. Mariscal, 939 F.2d 884, 886 (9th Cir. 1991); United States v. Espinosa, 771 F.2d 1382, 1409 (10th Cir.), cert. denied, 474 U.S. 1023 (1985). The Eleventh Circuit, however, held that a trial court abused its discretion when it granted a severance based on a codefendant's willingness to testify and then declined to try the codefendant's case first. United States v. DiBernardo, 880 F.2d 1216, 1228-29 (11th Cir. 1989).

 In the present case, McNeal is willing to testify once he has been acquitted or sentenced. The government's contention that Fisher's trial could be delayed months or longer while McNeal appeals is therefore unfounded. Most likely, if McNeal is convicted, there would only be a seven-week delay while McNeal awaits sentencing. *fn1" McNeal does not state that he will insist on waiting for an appeal. Additionally, there is nothing to indicate that there is any motive in McNeal requesting to be tried first other than to avoid incriminating himself, which is consistent with the reason for severing the trials. If the codefendant were willing to waive his Fifth Amendment right and risk incriminating himself, there would be no need to even severe the trial. It would be fully consistent with granting a severance to try the testifying codefendant's case first. Additionally, the trial of this case is ...

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