West accept bribes, but Jeffers could not refute other witnesses' testimony that they saw King and West accept bribes.
Here, the focus of McNeal's affidavit is on the initial confrontation with Jones that occurred at her house. McNeal states that Fisher was not involved in that initial confrontation.
McNeal does not directly address any events that may have occurred during the alleged abduction to Illinois and subsequent requests for payments from Jones's mother. The government's position is that Fisher's participation in an abduction and holding Jones in Indiana would be grounds for convicting Fisher even if Fisher had not been involved in McNeal's initial conduct. McNeal's affidavit, however, states: "At no time did I discuss or plan with Marcus Fisher any activity to attempt recovery of my money held by her." McNeal also states, "Any course of action that I may have undertaken concerning her and the money was solely my action." This statement is broad enough to cover both events at the house in Indiana and events that occurred in Illinois. This court will not require that McNeal expressly refer to transporting Jones to Indiana and expressly deny Fisher's participation in any such conduct before the affidavit will be sufficient. A codefendant who denies his own guilt should not be required to admit participation in criminal conduct in order to be able to show that he has exculpatory testimony that would aid the defendant. Also, even if McNeal's testimony would not exonerate Fisher on the kidnapping charge, it may still exonerate him on the Travel Act extortion charge. There has been a sufficient showing made that McNeal would provide exculpatory testimony bearing on Fisher's guilt or innocence.
The charges against Fisher will be severed for purposes of trial. The date for Fisher's separate trial will be set following the conclusion of McNeal's trial. For purposes of the Speedy Trial Act, time will be excluded while McNeal is unavailable to testify, 18 U.S.C. § 3161(h) (3), or alternatively in the interest of justice pursuant to 18 U.S.C. § 3161(h) (8) so that McNeal will be available to testify.
McNeal has moved to suppress items found in his possession at the time of his arrest and also seeks to suppress statements he made while in custody following his arrest. McNeal contends he was unlawfully arrested at the apartment of Melva French because the arresting officers lacked a warrant. The motion to suppress the items that were seized lacks merit. There is no contention by McNeal that he was an overnight guest at French's apartment. McNeal has no standing to raise the claim that the police lacked a warrant to enter the apartment. United States v. McNeal, 955 F.2d 1067, 1071 (6th Cir.), cert. denied, 120 L. Ed. 2d 908, 112 S. Ct. 3039 (1992). Since, there is no contention that the arrest lacked probable cause, there is no basis for suppressing any items found in McNeal's possession at the time of his arrest.
McNeal contends that the statements he gave while in police custody are not admissible because he did not have an attorney present and was not provided with Miranda warnings prior to giving the statements. He contends Miranda warnings were only given subsequent to his making the statements. McNeal refused to sign the written statement of rights provided to him at the same time he was orally advised of his rights. He contends that the officers backdated the time on the form to make it appear that the Miranda warnings were given prior to his statements. The government concedes that the alleged facts would require that the statements be suppressed. The officers, however, indicate in their reports that the necessary warnings were given prior to McNeal giving the statements. The government contends that a hearing is not required because McNeal has not supported his allegations with an affidavit. The government does not point to any Seventh Circuit case that requires the defendant to provide an affidavit. The Seventh Circuit cases relied upon only require that the facts be "definite, specific, detailed, and nonconjectural." United States v. Randle, 966 F.2d 1209, 1212 (7th Cir. 1992) (quoting United States v. Hamm, 786 F.2d 804, 807 (7th Cir. 1986)). See also United States v. Woods, 995 F.2d 713, 715 (7th Cir. 1993).
The facts alleged in the motion are definite and specific. A hearing is necessary in order to determine whether Miranda warnings were given prior to McNeal making his statements. The hearing will be held either immediately prior to the beginning of jury selection or on another date to be set by the court.
McNeal has also filed a motion in limine. The government states that it has no present intent to use any prior criminal history, evidence of gang affiliation, or evidence of personal drug use. The motion will be granted as to that evidence.
McNeal seeks to suppress evidence as to his using the nickname "What Cha Ma Call It." The government contends that McNeal used this name while committing the acts alleged in the indictment and that some witnesses will identify him as using that name. McNeal may be indicating that this is a gang nickname. The government, however, does not intend to link the nickname with his gang affiliation and, consistent with the ruling on gang affiliation, is precluded from doing so. The motion in limine as to the nickname is denied.
McNeal also seeks to exclude any evidence that he may have been involved in drug trafficking. The government's allegations as to the background of the kidnapping is as follows. $13,000 or more of cash from drug profits was kept at the house McNeal and Jones shared. On December 28, 1993, Jones became angry with McNeal after seeing him leave a hotel with another woman. Jones took $13,000 of cash from the house occupied by her mother. Over the next two days, McNeal made a number of threats demanding return of the money. The altercation between McNeal and Jones that occured at their house on December 30 was still about the $13,000. McNeal eventually pistol whipped Jones and dragged her into French's car. McNeal, French, and Fisher drove Jones to a hotel in Chicago where Jones and McNeal communicated with Jones's mother demanding that she return the $13,000 hidden at the mother's house.
The government contends that the illegal source of the cash is relevant to showing McNeal's motive for using illegal means to get it back. The government contends that McNeal may have used legal means to obtain the money if not for the fact that he did not want to make public his possession of large sums of cash obtained from an illegal source.
It is true, as the government contends, that showing the illegal source of the money would be additional evidence of a motive for using kidnapping as a collection technique. However, contrary to the government's contentions, a jury could also readily understand that a violent dispute could result from one spouse taking large sums of money the other spouse believed was his cash, especially when the taking of money followed one spouse's apparent infidelity. The source of the money is not essential to the government's case, and does not even appear to be particularly important. On the other hand, bringing in evidence that McNeal was involved in substantial drug dealing would be highly prejudicial to McNeal. It could also result in the jury considering a collateral issue of whether McNeal also committed narcotics offenses. This could result in jury confusion and might also significantly increase the length of the trial. The motion in limine to exclude evidence of drug trafficking by McNeal will be granted.
IT IS THEREFORE ORDERED that:
(1) Defendant Fisher's amended Rule 14 motion for severance  is granted. McNeal and Fisher will be tried separately. Pursuant to 18 U.S.C. § 3161(h)(3), or alternatively in the interest of justice pursuant to 18 U.S.C. § 3161(h)(8), speedy trial time will not run on the charges against Fisher until McNeal has been acquitted or sentenced.
(2) Defendant McNeal's supplemental motion to suppress  is denied in part. Evidence taken from his person will not be suppressed based on an unlawful search. A hearing will be held on the question of whether statements he gave to law enforcement officers should be suppressed.
(3) Defendant McNeal's motion in limine to preclude certain evidence is granted in part and denied in part. Evidence as to defendant McNeal's prior criminal history, gang affiliation, personal drug use, and drug trafficking shall be excluded. Evidence as to McNeal's use of a nickname is not excluded.
William T. Hart
UNITED STATES DISTRICT JUDGE
Dated: MARCH 24, 1994