Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. No. 98 CR 929--James B. Moran, Judge.
Before Coffey, Easterbrook, and Ripple, Circuit
The opinion of the court was delivered by: Coffey, Circuit Judge.
On November 10, 1999, a jury found defendants McClurge and Carlisle guilty of kidnapping, conspiracy to commit kidnapping, and using a firearm during the commission of a crime of violence. *fn1 Defendant McClurge challenges his conviction and argues on appeal that the trial court abused its discretion: (1) by not granting his motion for severance; (2) by refusing to strike testimony of the prosecution's key witness; and (3) by failing to grant a new trial or evidentiary hearing based on newly discovered evidence. Defendant Carlisle likewise challenges his conviction, joining in McClurge's second argument; namely, that he was denied his Sixth Amendment right to confront his accuser when the district court allowed the prosecution's witness to invoke his Fifth Amendment rights. We affirm.
Just after midnight on December 8, 1998, a Chicago-area drug dealer, Terrance McClurge ("McClurge"), aided by two accomplices, Reneiko Carlisle ("Carlisle") and Tywon Cannon ("Cannon"), abducted Raymond Lewis ("Lewis") at gunpoint in Maywood, Illinois. Lewis was the brother-in-law of Allen Jimmerson ("Jimmerson"), a Chicago resident who supplemented his income as a gospel music producer with sales of illegal narcotics to dealers such as McClurge.
A few months before Lewis's abduction, McClurge had become disenchanted with Jimmerson and made plans to kidnap either Jimmerson or someone close to him. Cannon, who had pled guilty and testified at the defendants' trial pursuant to a plea agreement, claimed that McClurge drove the black Lexus used in the kidnapping, that Carlisle had forced Lewis into the back seat of the car, and that Cannon himself had brandished a gun to frighten Lewis into submission.
Once the four men were inside the vehicle, Carlisle handcuffed Lewis and covered his mouth and eyes with duct tape. The kidnappers drove to the residence of McClurge's mother, where Lewis was escorted into a detached garage at the rear of the property. While Carlisle remained with Lewis in the garage, McClurge and Cannon drove to a nearby gas station to make the first of several phone calls demanding cocaine and money in exchange for Lewis's safe return. McClurge dialed Jimmerson's home phone number and handed the receiver to Cannon as he was of the opinion that Lewis's family members might recognize his voice.
Throughout the day of December 8th, McClurge and Cannon drove around the south side of Chicago making phone calls to Jimmerson attempting to arrange for a ransom payment. McClurge dialed the phone for each of the calls, passed the cell phone to Cannon, and told Cannon what to say. Later that day, after McClurge took Cannon home, McClurge recruited another of his friends, Marcus Marks ("Marks"), to assume the role of negotiator between the victim's family and the kidnappers.
Throughout the evening of December 8, McClurge and Marks drove around Chicago's south side placing phone calls to Jimmerson. On this trip they were accompanied by Marks's friend, Antwon Eiland ("Eiland"). Several of these calls were made from cell phones belonging to Marks and Eiland. By this time, FBI agents had been called in to assist the Maywood Police and had set up telephone recording equipment at the Jimmerson residence. After numerous phone calls, eight of which were recorded by the FBI, McClurge, through Marks, told Jimmerson that he was becoming suspicious that the police had become involved and that negotiations would be ended for the night.
Late in the evening of the next day, December 9, McClurge told Marks that Lewis had to be moved out of the Chicago area. Marks agreed, but then withdrew from the plan after his mother voiced her objection to this proposed interstate travel with McClurge. McClurge, accompanied by his cousin, Alvertis McClurge ("Alvertis"), *fn2 transported Lewis to Jackson, Michigan. They arrived at the residence of McClurge's girlfriend in the early morning hours on December 10. Lewis was taken to the basement of the home, where he was watched while under the supervision of Alvertis. Alvertis testified at trial that he became involved and took care of Lewis only after being threatened by McClurge at gunpoint.
Back in Chicago, FBI agents had identified Marks and Eiland as the owners of the cellular phones used to make the ransom calls, and both men were arrested in the early morning hours of December 10. Marks confessed to his role in the crime and offered to lead agents to the home where Lewis was being held in Jackson, Michigan. While Marks and two FBI agents were en route to Michigan on the morning of December 11, McClurge decided to release Lewis. McClurge helped Lewis (whose eyes and mouth were still covered with duct tape, but whose hands had evidently been removed from the handcuffs) out of the basement, drove him to Detroit, and dropped him off in the vicinity of an AMTRAK station. Lewis, after managing to free himself from the duct tape that bound him, called a friend in Chicago from a pay phone at the station who in turn notified the police of Lewis's location. FBI agents picked up Lewis and interviewed him.
The criminal investigation of the kidnapping produced several pieces of evidence inculpating McClurge, including: (1) fibers taken from Lewis's clothing matched those of carpet in the home of McClurge's girlfriend in Jackson, Michigan (to which McClurge had brought the victim); (2) the ends of the duct tape used to bind Lewis matched precisely the ends on a role of duct tape seized from McClurge 's bedroom; and (3) a gold necklace belonging to Lewis ...