United States v. McClurge, Terrance ( 2002 )

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 kid-
napping, 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
1
A third defendant, Alvertis McClurge, (a cousin of Terrance
McClurge) was acquitted.
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 Amend-
ment 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 Can-
non (“Cannon”), abducted Raymond Lewis (“Lewis”) at
gunpoint in Maywood, Illinois. Lewis was the brother-in-
law of Allen Jimmerson (“Jimmerson”), a Chicago resi-
dent 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 defen-
dants’ 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 Mc-
Clurge’s mother, where Lewis was escorted into a de-
tached 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 sev-
eral phone calls demanding cocaine and money in ex-
change for Lewis’s safe return. McClurge dialed Jimmer-
son’s home phone number and handed the receiver to
Cannon as he was of the opinion that Lewis’s family mem-
bers 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 Can-
non 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 negoti-
ator 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 resi-
dence. After numerous phone calls, eight of which were
recorded by the FBI, McClurge, through Marks, told
Jimmerson that he was becoming suspicious that the po-
lice 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
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 un-
der 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 re-
lease 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 man-
aging to free himself from the duct tape that bound him,
called a friend in Chicago from a pay phone at the sta-
tion 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, includ-
ing: (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
2
As noted ante, this opinion refers to Terrance McClurge as
“McClurge” and to his cousin, Alvertis McClurge, as “Alvertis.”
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 Dis-
trict of Illinois returned a three-count superseding in-
dictment 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 in-
volved in the kidnapping, while Alvertis’s defense was
to admit his participation in the kidnapping, but to ar-
gue 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
At trial, Marks testified about his knowledge of the
events surrounding the kidnapping and the participa-
tion 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 some-
body, 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-
3
Eiland was not charged with any crime in connection with the
kidnapping.
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 relat-
ing 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 infor-
mation had been known to McClurge prior to trial (and
thus was not “newly discovered”) and that the informa-
tion, 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 sever-
ance 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 vio-
lated 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 cross-
examination.
8 Nos. 01-1858 & 01-2333
A. Motion for Severance
McClurge argues that the trial court abused its discre-
tion by refusing to sever his trial from that of his co-defen-
dant Alvertis because of the “mutually antagonistic de-
fense” 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 kid-
napping; Alvertis’s defense, meanwhile, was premised on
the theory that McClurge had coerced Alvertis into par-
ticipating 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 cocon-
spirator). 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. (quota-
tion 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 sev-
eral 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 dis-
trict 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 mak-
ing a reliable judgment about guilt or innocence.” [quot-
ing 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 pre-
cludes any possibility of acquittal for the other defen-
dant, 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 preju-
diced” 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 co-
defendant 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 ob-
jection) 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 pur-
poses.”
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 admissi-
bility 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) (quota-
tion 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 defen-
dant, 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 argu-
ment, 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 ob-
ject 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 de-
fendant’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 of-
fense charged against one defendant should not con-
trol 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 reason-
able 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 preju-
dice” presented by mutually antagonistic defenses be-
cause 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 ques-
tions 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, how-
ever, does not guarantee “cross-examination that is effec-
tive 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 wit-
ness’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 prop-
erly drawn a distinction between cross-examination ques-
tions that are directly related to the witness’s direct testi-
mony and cross-examination questions that are merely
collateral to the witness’s direct testimony, such as “credi-
bility.” 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 discus-
sion 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 con-
tention can be made that merely by testifying he
waives his right to foreclose inquiry on cross-examina-
tion into criminal activities for the purpose of attack-
ing his credibility. So to hold would reduce the privi-
lege to a nullity.
Fed. R. Evid. 608(b), Comm. Notes. Courts from other
circuits have reached the same conclusion when pre-
sented 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 “collat-
eral” 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, hold-
ing 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 discov-
ered 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 be-
ing investigated for possible involvement in an unre-
lated murder would have resulted in his acquittal be-
cause 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 al-
leged “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 girl-
friend 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 captiv-
ity 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 deny-
ing 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 de-
fense claimed was unduly prejudicial and in violation of
his Sixth Amendment confrontation rights because the
witness invoked his Fifth Amendment rights against self-
incrimination; or much less (3) by refusing to grant a
new trial based on newly discovered evidence. The convic-
tions 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