1 A third defendant, Alvertis McClurge, (a cousin of Terrance

McClurge) was acquitted.

In the

United States Court of Appeals

For the Seventh Circuit ____________

Nos. 01-1858 & 01-2333

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

TERRANCE MCCLURGE

and RENEIKO CARLISLE,

Defendants-Appellants.

____________

Appeals from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 98 CR 929—James B. Moran, Judge.

____________

ARGUED DECEMBER 5, 2001—DECIDED NOVEMBER 27, 2002

____________

Before COFFEY, EASTERBROOK, and RIPPLE, Circuit

Judges.

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.1

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
2 Nos. 01-1858 & 01-2333

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.

I. FACTUAL BACKGROUND

A. The Kidnapping

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-inlaw 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
Nos. 01-1858 & 01-2333 3

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, ac-
4 Nos. 01-1858 & 01-2333

2 As noted ante, this opinion refers to Terrance McClurge as

“McClurge” and to his cousin, Alvertis McClurge, as “Alvertis.”

companied by his cousin, Alvertis McClurge (“Alvertis”),2

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
Nos. 01-1858 & 01-2333 5

McClurge ’s bedroom; and (3) a gold necklace belonging

to Lewis was recovered from the back of a car registered

to McClurge’s mother in which Lewis had at one time

been confined.

B. The Criminal Proceedings

On August 26, 1999, a grand jury in the Northern District of Illinois returned a three-count superseding indictment against McClurge, Carlisle, and Alvertis. Counts

one and two charged the three men with kidnapping

and conspiracy to commit kidnapping, in violation of 18

U.S.C. §§ 1201(a)(1)-(2), (c). Count three charged McClurge

and Carlisle with using, carrying, and brandishing a

firearm during and in relation to a crime of violence, in

violation of 18 U.S.C. § 924(c)(1). Marks and Cannon

entered pleas of guilty to charges of conspiracy to commit

kidnapping and agreed to testify for the government

pursuant to a plea agreement.

Prior to trial, McClurge moved for severance of his trial

from that of his co-defendant Alvertis, arguing that as

McClurge and Alvertis would be presenting mutually

exclusive defenses that might inculpate one another, both

theories of defense could not be accepted by the jury.

McClurge’s theory of defense was that he was not involved in the kidnapping, while Alvertis’s defense was

to admit his participation in the kidnapping, but to argue that McClurge forced him at gunpoint to participate.

McClurge’s attorney renewed his severance motion the

morning of trial, several times throughout the trial, and

again at the conclusion of testimony. On each occasion the

district court denied the motion relying on the Supreme

Court’s holding in Zafiro v. United States, 506 U.S. 534

(1993), which held that the fact that defenses may be

“antagonistic” does not, of itself, necessitate severance,

and furthermore that McClurge had offered no more than

that his and Alvertis’s defenses would be antagonistic.
6 Nos. 01-1858 & 01-2333

3 Eiland was not charged with any crime in connection with the

kidnapping.

At trial, Marks testified about his knowledge of the

events surrounding the kidnapping and the participation of the defendants McClurge, Carlisle and Alvertis. On

cross-examination, Marks invoked his Fifth Amendment

right against self-incrimination in response to a total of

four questions, posed by attorneys representing McClurge

and Carlisle, concerning his relationship with Eiland

(the friend who rode in the car with Marks and McClurge

the evening of December 8 and the owner of one of the

cellular telephones referred to heretofore as being used to

make the ransom calls).3

 The judge sustained objections

to these questions and later denied a motion to strike

Marks’s testimony.

The first time Marks invoked his Fifth Amendment right

was during his cross-examination by Carlisle’s attorney.

When asked “Well, you have seen him [Eiland] kill somebody, haven’t you?,” Marks took the Fifth. The district

court responded by instructing counsel to move forward

with a different line of questioning. The other three times

Marks refused to answer arose during cross-examination

by counsel for McClurge. While Marks answered most of

the questions posed to him, he pleaded the Fifth to the

following three questions: (1) “[Y]ou covered up crimes

for Antwon Eiland before, haven’t you?”; (2) “[Y]ou and

Antwon Eiland have engaged in other kidnappings, haven’t

you?”; and (3) “What about that shooting, did you cover up

for him then?” The government objected to the line of

questioning and the objection was sustained by the trial

judge.

The jury found McClurge and Carlisle guilty on all three

counts of the indictment and acquitted Alvertis of all

charges. After the verdict, but prior to sentencing, Mc-
Nos. 01-1858 & 01-2333 7

Clurge filed a motion for a new trial on the basis of newly

discovered evidence, arguing that he had learned after trial

that Marks, the government’s witness, was a suspect in

an unrelated investigation concerning the murder of a

drug dealer, and that this information potentially relating to the impeachment of a key witness should have

been made known to the defendant. The trial court denied

the motion for a new trial on the grounds that the information had been known to McClurge prior to trial (and

thus was not “newly discovered”) and that the information, even if considered “newly discovered,” would not have

had a conceivable bearing on the outcome of the trial.

McClurge was subsequently sentenced to concurrent

terms of 360 months on counts 1 and 2, and a consecutive

term of 60 months on count 3. Carlisle was sentenced

to concurrent terms of 195 months on counts 1 and 2 and

a consecutive term of 60 months on count 3. McClurge

and Carlisle appeal.

II. DISCUSSION

McClurge makes three arguments on appeal: (1) the trial

court abused its discretion by not granting the severance motion; (2) Marks’s invocation of his Fifth Amendment

right against self-incrimination and the district court’s

related limitation of the scope of cross-examination violated his constitutional right to confront witnesses; and

(3) the district court abused its discretion when it denied

his motion for a new trial based on “newly discovered

evidence.” Carlisle’s appeal raises only the issue of the

court’s denial of his motion to strike Marks’s testimony

after Marks invoked his Fifth Amendment rights on crossexamination.
8 Nos. 01-1858 & 01-2333

A. Motion for Severance

McClurge argues that the trial court abused its discretion by refusing to sever his trial from that of his co-defendant Alvertis because of the “mutually antagonistic defense” presented by Alvertis. Specifically, McClurge argues

that a jury could not accept both his defense and Alvertis’s

defense to the kidnapping charges, because acceptance

of one required the rejection of the other. McClurge’s

defense theory was that he was not involved in the kidnapping; Alvertis’s defense, meanwhile, was premised on

the theory that McClurge had coerced Alvertis into participating at gunpoint.

We review the trial court’s decision to deny a motion

to sever trials for abuse of discretion. United States v.

Mietus, 237 F.3d 866, 873 (7th Cir. 2001). In conspiracy

cases, “there is a strong interest in trying defendants

who have been jointly indicted in a single trial.” United

States v. Blassingame, 197 F.3d 271, 286 (7th Cir. 1999)

(holding that one trial applicable to each defendant is

preferred over two because joint trials reduce the burdens

on the judiciary, prosecutors, and witnesses, because of

the extra expenses incurred in two trials, and because

they reduce the chance that each defendant will attempt

to create reasonable doubt by blaming an absent coconspirator). In all but the “most unusual circumstances,” the

risk of prejudice arising from a joint trial is “outweighed

by the economies of a single trial in which all facets of

the crime can be explored once and for all.” Id. (quotation omitted).

McClurge initially argues that severance is required

whenever the defense theory of one defendant contradicts

the defense of another defendant in such a way that the

jury’s acceptance of one defense precludes acceptance of

the other. McClurge’s argument is supported neither by

logic nor case law. First, McClurge’s defense and Alvertis’s
Nos. 01-1858 & 01-2333 9

defense were not “mutually antagonistic.” While Alvertis’s

was hostile to McClurge’s, the converse was not true.

Second, even if we were to assume the defenses were

“mutually antagonistic,” McClurge’s theory runs contrary

to the law of this circuit. As has been made clear on several occasions, the presentation of mutually antagonistic

defenses “is not sufficient grounds to require severance”

of trials:

There is a preference in the federal system for joint

trials of defendants who are indicted together. A district court should grant severance . . . only if the

joint trial “compromise[d] a specific trial right of one

of the defendants, or prevent[ed] the jury from making a reliable judgment about guilt or innocence.” [quoting Zafiro, 506 U.S. at 538-39.] Even a showing that

two defendants have “mutually antagonistic defenses,”

that is, that the jury’s acceptance of one defense precludes any possibility of acquittal for the other defendant, is not sufficient grounds to require a severance

unless the defendant also shows prejudice to some

specific trial right.

Mietus, 237 F.3d at 873 (emphasis added). See also United

States v. Wilson, 237 F.3d 827, 835-36 (7th Cir. 2001), cert.

denied, 122 S. Ct. 97 (2001); United States v. Ramirez, 45

F.3d 1096, 1100-01 (7th Cir. 1995).

McClurge’s next argument is that he was “unduly prejudiced” by Alvertis’s coercion defense, in that two items of

“evidence” were elicited during testimony that would have

been inadmissible in a trial of McClurge alone. The first

item to which McClurge objects is a statement, elicited

by Alvertis’s attorney during his cross-examination of codefendant Cannon, that Cannon had told the FBI that

he had once “done time” for McClurge. The judge allowed

the question, over an objection by McClurge’s attorney that

it was impermissible character evidence, on the grounds
10 Nos. 01-1858 & 01-2333

that it simply showed Cannon’s “prior involvement with

McClurge [and] with drugs.” The trial transcript clearly

demonstrates that McClurge’s attorney (despite his objection) never requested a limiting instruction, and the

question was allowed, with the judge reminding the jury

“that there are no charges involving drugs in this case,”

and that the testimony was being allowed “for other purposes.”

This ruling is reviewed under an abuse of discretion

standard. See Okai v. Verfuth, 275 F.3d 606, 610 (7th Cir.

2001). “The district court’s determination of the admissibility of evidence is treated with great deference because

of the trial judge’s first-hand exposure to the witnesses

and the evidence as a whole, and because of his familiarity

with the case and ability to gauge the likely impact of the

evidence in the context of the entire proceeding.” United

States v. Denberg, 212 F.3d 987, 992 (7th Cir. 2000) (quotation omitted). Here, where the record reflects that the

judge specifically limited the scope of cross-examination

on this point to a single question concerning Cannon’s

“prior relationships” upon a proper motion by the defendant, we will not disturb the trial court’s discretion.

The second item of “evidence” to which McClurge objects

is a reference, by Alvertis’s attorney in his closing argument, to an FBI report that summarized an interview

between FBI agents and Alvertis. The prosecution used this

report when cross-examining Alvertis in an effort to

establish that Alvertis’s trial testimony differed from his

statements to the FBI. In his brief, McClurge claims the

reference to the report in the closing argument introduced

“improper lawyer testimony” and “inadmissible hearsay”

into McClurge’s trial. As McClurge’s counsel did not object to the FBI report during Alvertis’s cross-examination

or during the closing argument by Alvertis’s lawyer, we

review the judge’s allowing the reception of the statement

in evidence under the “plain error” standard of review.
Nos. 01-1858 & 01-2333 11

United States v. Olano, 507 U.S. 725, 732 (1993). Upon

review, we are convinced that the comments made by

Alvertis’s attorney were a proper comment on the lack

of impeachment value contained in the FBI report that

had been used to cross-examine his client and that the

district judge did not commit error when he granted

permission for the statement to be made.

Even were we to find that the trial judge erred when

denying McClurge’s severance motion, the law is clear

that misjoinder of defendants can be harmless error if

the jury was appropriately instructed to give “separate

consideration to each individual defendant and to each

separate charge against him,” Zafiro, 506 U.S. at 541,

and if the evidence against the defendant complaining

of joinder was “overwhelming.” See United States v.

Todosijevic, 161 F.3d 479, 485 (7th Cir. 1998) (“Our decision

[affirming] joinder allows us to dispense with [the defendant’s] claim that the trial judge erred when he denied

[the] motion to sever.”) In the present case, the trial judge

properly instructed the jury as follows:

You will note that in the instructions I often refer to

“the defendant you are then considering,” and that

is because each count of the indictment charges

each defendant with having committed a separate

offense. Each count and the evidence relating to it

should be considered separately . . . . Your verdict of

guilty or not guilty of an offense charged in one

count should not control your decision as to any other

count. Your verdict of guilty or not guilty of an offense charged against one defendant should not control your decision as to any other defendant.

(Tr. at 1658-59.) The jury instruction directs the jury

that with assessment of guilt, the jury must find each

and every defendant not guilty or guilty beyond a reasonable doubt as to each element of the crime charged. Such
12 Nos. 01-1858 & 01-2333

an instruction “suffice[s] to cure any possibility of prejudice” presented by mutually antagonistic defenses because juries “are presumed to follow their instructions.”

Zafiro, 506 U.S. at 540-41. We are convinced that the

district court did not abuse its discretion in denying

McClurge’s motion for severance.

B. Marks’s Invocation of the Fifth Amendment

McClurge and Carlisle argue that the district court

abused its discretion when it denied their joint motion to

strike Marks’s direct testimony. The appellants contend

they were unable to introduce evidence of Marks’s past

criminal associations with Eiland when Marks invoked

his Fifth Amendment constitutional privilege and refused

to answer questions about his relationship with Eiland.

The appellants conclude that they were denied their

Sixth Amendment rights to confront their accuser when

the court did not order Marks to answer these four questions and when it allowed Marks’s testimony on direct to

stand.

We generally review a trial court’s decision to limit the

scope of cross-examination under the “abuse of discretion”

standard. When the limitation directly implicates the

Sixth Amendment right to confrontation, however, we

conduct a “de novo” review. See United States v. Robbins,

197 F.3d 829, 844 (7th Cir. 1999). The situation presented

in this case requires courts to balance two competing

interests: the witness’s Fifth Amendment right against

self-incrimination and the defendant’s Sixth Amendment

right to confront his accusers.

A criminal defendant’s right to confront his accusers

is basic under the Sixth Amendment. Pointer v. Texas,

380 U.S. 400, 401 (1965). The confrontation clause, however, does not guarantee “cross-examination that is effective in whatever way, and to whatever extent, the defense
Nos. 01-1858 & 01-2333 13

may wish.” Delaware v. Fensterer, 474 U.S. 15, 20 (1985)

(per curiam). The Fifth Amendment provides, inter alia,

that “[n]o person . . . shall be compelled in any criminal

case to be a witness against himself.” See, e.g., McNeil

v. Wisconsin, 501 U.S. 171, 176 (1991). While the Sixth

Amendment confrontation right may be limited by a witness’s invocation of his Fifth Amendment right against

self-incrimination, a court must exercise vigilance so as

not to emasculate the right of cross-examination. See

United States v. Zapata, 871 F.2d 616, 623 (7th Cir. 1989).

When determining the constitutional implications of a

witness’s refusal to answer questions, courts have properly drawn a distinction between cross-examination questions that are directly related to the witness’s direct testimony and cross-examination questions that are merely

collateral to the witness’s direct testimony, such as “credibility.” Zapata, 871 F.2d at 624.

The four questions Marks refused to answer clearly dealt

with issues collateral to the culpability of McClurge and

Carlisle. The trial transcript demonstrates that Marks

was asked whether he had ever seen Eiland commit

murder, whether he had ever kidnapped anyone else

with Eiland, and (twice) whether he had ever covered up

any of Eiland’s crimes. (Tr. at 967, 975, 983.) Marks had

already testified on direct about his relationship with

Eiland (Tr. at 706-18, 799), but had limited that discussion to the time and events surrounding the kidnapping

referred to herein. (Id.) Thus, questions surrounding

Marks’s relationship with Eiland beyond that time period

clearly were aimed at impugning Marks’s credibility, an

attempt which must cease at the threshold of Marks’s own

Fifth Amendment rights. The commentary to Rule 608(b)

of the Federal Rules of Evidence states that the Rule

constitutes a rejection of the doctrine . . . that any past

criminal act relevant to credibility may be inquired

into on cross-examination, in apparent disregard of
14 Nos. 01-1858 & 01-2333

the privilege against self-incrimination. While it is

clear that an ordinary witness cannot make a partial

disclosure of incriminating matter and then invoke

the privilege on cross-examination, no tenable contention can be made that merely by testifying he

waives his right to foreclose inquiry on cross-examination into criminal activities for the purpose of attacking his credibility. So to hold would reduce the privilege to a nullity.

Fed. R. Evid. 608(b), Comm. Notes. Courts from other

circuits have reached the same conclusion when presented with similar facts. See, e.g., United States v. Brooks,

82 F.3d 50, 54 (2d Cir. 1996) (holding that a witness’s

invocation of his Fifth Amendment privilege on a “collateral” matter did not violate defendant’s Sixth Amendment

right to confrontation); United States v. Berrio-Londono,

946 F.2d 158, 158-59 (1st Cir. 1991) (affirming a refusal

to strike the direct testimony of a coconspirator who

asserted his Fifth Amendment right concerning prior

drug deals with a coconspirator other than the defendant).

C. Motion for a New Trial

After the verdict, McClurge filed a motion requesting

a new trial on the grounds of “newly discovered evidence.”

McClurge claimed that he had learned from two sources

that Marks, one of the government’s witnesses, had been

“bragging” about killing a drug dealer named “Sporty” and

that the FBI was in fact investigating Marks about

Sporty’s murder. The trial judge denied the motion, holding that this information would not have affected the

outcome of the trial.

We review the court’s refusal to grant a new trial on the

basis of newly discovered evidence for abuse of discretion.

United States v. Woodfolk, 197 F.3d 900, 904 (7th Cir.

1999). To prevail on a motion for a new trial based on
Nos. 01-1858 & 01-2333 15

newly discovered evidence, a defendant must demonstrate

that (1) he became aware of the evidence only after trial;

(2) he could not, by exercising due diligence, have discovered it sooner; (3) the evidence is material; and (4) in the

event of a new trial, the evidence would probably lead to

an acquittal. See United States v. Brumley, 217 F.3d 905,

909 (7th Cir. 2000).

McClurge argues that the evidence that Marks was being investigated for possible involvement in an unrelated murder would have resulted in his acquittal because it would somehow have conclusively established

his defense theory that Marks was responsible for Lewis’s

kidnapping. We are at a loss to understand how the alleged “newly discovered evidence” could possibly have

resulted in an acquittal. McClurge makes no allegation

that the shooting of “Sporty” had anything whatsoever to

do with the kidnapping of Lewis. Further, Marks had

not been charged with any crime in connection with the

murder of “Sporty,” and the record does not reveal what,

if anything, ever came of the investigation. If anything,

the evidence merely establishes that Marks was capable

of committing violent crimes, but the jury was already

aware of the fact that Marks was a career criminal who

admitted his participation in the kidnapping of Lewis

and his long history of dealing drugs. Furthermore, as the

trial judge stated, the “new” evidence would not have

had “any conceivable bearing” on the outcome of the trial

because the weight of the evidence inculpating McClurge

was overwhelming: (1) fibers taken from Lewis’s clothing

matched those of carpet in the home of McClurge’s girlfriend in Jackson, Michigan; (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; (3) Lewis’s

gold necklace was found in the back of a Ford Explorer

registered to McClurge’s mother inside of which Lewis

had been confined; (4) Lewis identified McClurge’s voice
16 Nos. 01-1858 & 01-2333

as the voice of the man who had released him from captivity in the Detroit area; and (5) the testimony of Marks,

Cannon, and Avertis all identified McClurge as the leader

of the kidnappers.

In light of the overwhelming evidence of McClurge’s guilt

and the absence of any connection between the alleged

newly discovered evidence and McClurge’s charged crime,

the district court did not abuse its discretion when denying McClurge’s motion for a new trial.

III. CONCLUSION

Based on the record we hold that the district court did

not abuse its discretion (1) in refusing to grant McClurge’s

motion to sever his trial from that of his co-defendants;

(2) in refusing to strike certain testimony that the defense claimed was unduly prejudicial and in violation of

his Sixth Amendment confrontation rights because the

witness invoked his Fifth Amendment rights against selfincrimination; or much less (3) by refusing to grant a

new trial based on newly discovered evidence. The convictions of defendant-appellants McClurge and Carlisle are

AFFIRMED.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—11-27-02