                             In the
 United States Court of Appeals
               For the Seventh Circuit
                          ____________

Nos. 03-2068 & 04-1377
UNITED STATES OF AMERICA,
                                               Plaintiff-Appellant,
                                                   Cross-Appellee,
                                 v.

IVAN EBERHART,
                                              Defendant-Appellee,
                                                 Cross-Appellant.
                          ____________
           Appeals from the United States District Court
       for the Northern District of Illinois, Eastern Division.
              No. 98 CR 946—James B. Zagel, Judge.
                          ____________
   ARGUED OCTOBER 1, 2004—DECIDED JANUARY 10, 2006
                     ____________

  Before FLAUM, Chief Judge, and BAUER and POSNER,
Circuit Judges.
  FLAUM, Chief Judge. Ivan Eberhart was convicted by
a jury of conspiring to distribute cocaine in violation of
21 U.S.C. § 846 and distributing cocaine in violation of
21 U.S.C. § 841(a)(1). He subsequently moved for a new
trial within the time limits of Federal Rule of Criminal
Procedure 33. That motion alleged one error on which
Eberhart believed a new trial should be granted. In a
supplemental memorandum, filed after the Rule 33 dead-
line, Eberhart alleged two additional errors that he believed
entitled him to a new trial. The government did not object
to the timeliness of these two additional grounds. The
2                                   Nos. 03-2068 & 04-1377

district court granted the motion for a new trial based on all
three grounds. On appeal, the government argued that the
district court lacked jurisdiction to consider the two grounds
raised in the supplemental memorandum, since Rule 33’s
time limits had expired at the time that memorandum was
filed. We agreed. United States v. Eberhart, 388 F.3d 1043,
1049-50 (7th Cir. 2004). The Supreme Court granted
certiorari, and held that Rule 33’s time requirements are
non-jurisdictional claim processing rules, and may be
forfeited if not properly contested in the district court.
Eberhart v. United States, 546 U.S. ___, 126 S. Ct. 403
(2005) (per curiam). The Court remanded the case so that
we might consider the government’s appeal with the
knowledge that the district court had jurisdiction to review
all three claims absent a government objection.
  We have considered all three grounds for a new trial that
Eberhart proffered and find that none, either alone or in
combination, provided a sufficient basis for the district
court to grant a new trial. Accordingly, we reverse the
district court’s decision to grant a new trial.


                      I. Background
  What follows are the facts of this case that are relevant to
our holding today. A more complete version of the facts may
be found in our original panel decision, United States v.
Eberhart, 388 F.3d 1043 (7th Cir. 2004), rev’d, 126 S.Ct. 403
(2005) (hereinafter Eberhart I).
  On Dec. 16, 1998, Drug Enforcement Administration
(“DEA”) Task Force Officer Daniel Foley and DEA Agent
Robert Glynn arrested Charles Bolden for distributing
cocaine. After being arrested, Bolden agreed to help the
DEA apprehend his drug source, whom he identified as “E.”
Officer Foley and Agent Glynn directed Bolden to telephone
his source, order two kilograms of cocaine, and attempt to
arrange an in-person meeting. Bolden then called Eberhart.
Nos. 03-2068 & 04-1377                                    3

This phone conversation, like many others between the two,
was recorded.
  After several phone calls between Bolden and Eberhart,
the two agreed to meet “where [they] met last time.” As
Eberhart was leaving this meeting, DEA agents arrested
him. Although the agents did not discover drugs in
Eberhart’s possession, Eberhart confessed that he had been
distributing between twenty and forty kilograms of cocaine
per month, and that Bolden was one of his customers.
Eberhart also described his source of drugs to the agents as
a man named “Tommy.” “Tommy” was never apprehended.
  Eberhart was eventually charged and tried for conspiring
to distribute cocaine and distributing cocaine. During the
course of the trial, transcripts of phone calls between
Bolden and Eberhart were introduced into evidence. The
jury, however, was instructed that the transcripts were
merely aids in interpreting the contents of the tape.
Additionally, the district court, over defense counsel’s
objection, allowed the DEA agents to testify that Bolden
had told them that his supplier’s name was “E,” and that
the agents then instructed Bolden to call “E.” The jury
was instructed that this information was only being
introduced to show the course of the investigation, and
not for the truth of the statement.
  On April 3, 2003, a jury convicted Eberhart of conspir-
ing to distribute cocaine, but acquitted him of the dis-
tribution charge. On May 15, 2002, Eberhart moved for
judgment of acquittal or, in the alternative, a new trial.
Eberhart filed a supplemental memorandum in support
of this motion on Oct. 30, 2002.
  Although the original motion was timely, the October
supplement was outside of the time limits set forth in
Federal Rule of Criminal Procedure 33 for motions for a
new trial. In his original motion, Eberhart stated only one
ground for a new trial: that transcripts introduced into
4                                    Nos. 03-2068 & 04-1377

evidence were inaccurate. In the supplement, he raised two
additional grounds: (1) that agents were improperly allowed
to testify that Bolden identified his supplier as “E” and (2)
that the “buyer-seller” instruction had not been given to the
jury. The government never objected to these two grounds’
untimeliness.
  The district court denied the motion for acquittal, but
granted the motion for a new trial. Although the court
acknowledged that no one of the claimed errors, or even any
pair of them, would justify a new trial, the court ruled that
the cumulative effect of all three justified a new trial.
  The government appealed the case to this court. We ruled
that the time requirements of Rule 33 were jurisdictional,
and that the district court had lacked the power to hear
those claims. We further ruled that the government’s
timeliness objection, because it involved subject matter
jurisdiction, was not forfeited by the prosecution’s failure to
object in the district court. Additionally, we ruled that the
one timely claim, regarding the transcripts, did not consti-
tute error. Accordingly, we reversed the district court’s
decision to grant a new trial. Eberhart I.
  The Supreme Court granted certiorari, and overturned
our holding that the time limits of Rule 33 were jurisdic-
tional. The Court ruled that the timing requirement
was a mere claims processing rule. Eberhart v. United
States, 126 S. Ct. 403, 405 (2005). In the absence of a
timeliness objection, therefore, the district court had
properly considered the two additional claims. The case was
remanded to this court to substantively evaluate Eberhart’s
additional claims.


                      II. Discussion
  The district court stated that it was granting Eberhart’s
request for a new trial for three reasons: (1) DEA agents’
Nos. 03-2068 & 04-1377                                     5

testimony that Bolden stated that his supplier was “E”
should have been excluded; (2) the transcript of Bolden’s
taped phone conversations was inaccurate; and (3) no
buyer-seller instruction was given to the jury. The district
court stated in its opinion that “[t]aken by themselves, none
of these concerns standing alone or in pairing would cause
me to grant a new trial.” All three combined, however,
convinced the district court that a new trial was warranted.
  In some cases, the cumulative harm of several errors may
justify a new trial when a single error standing alone would
not. In order for this case to fall into that category, how-
ever, each of the three errors must cause some degree of
harm to accumulate, as the district court acknowledged.
  In Eberhart I, we ruled that the potential transcript
“error” was not an error at all. Therefore, it could not have
caused a harm to Eberhart. We now reiterate what we
stated in that opinion:
    Even if the transcript mistakenly quotes Eberhart as
    calling, in haec verba, for a “face to face” meeting,
    undisputed portions of the transcript make clear that
    the two men planned to meet in person. Eberhart’s
    exact choice of words was immaterial to the govern-
    ment’s closing argument—that defendant’s plan to meet
    in person was consistent with the actions of a drug
    dealer trying to evade detection by law enforcement.
    Moreover, the district court instructed the jurors that:
    (i) the tape was evidence; (ii) the transcript was not
    evidence, but merely a guide to the contents of the tape;
    and (iii) in the event of a conflict between the two, the
    tape controlled. We presume that jurors
    follow instructions given them. This presumption is
    only overcome if there is an overwhelming probability
    that the jury was unable to follow the instruction as
    given. Eberhart offers no evidence to rebut this pre-
    sumption.
6                                      Nos. 03-2068 & 04-1377

Eberhart I, 388 F.3d at 1050 (internal quotation marks,
citations, and footnotes omitted).
  Similarly, the district court’s admission of Bolden’s
statements was not an error and caused no harm to
Eberhart. As the district court itself noted:
    It is true that Bolden told many different stories and
    admitted lying to the agents, but Eberhart, he said, was
    always the one who gave him drugs (on varying dates,
    in varying quantities, and at varying locations). There
    could have been no impeachment on the central point
    that Bolden named Eberhart as a supplier. Moreover,
    the prosecution relied on Bolden neither at trial nor in
    the investigation. His actions were always monitored by
    the agents. Furthermore, I do not recall any govern-
    ment witness or lawyer who said Bolden was reliable.
    It is difficult to believe, in light of the split verdict, that
    the jury thought much of Bolden. Bolden was not an
    accuser in the context of the case, and it was not in
    anyone’s interest except Eberhart’s to make him an
    accuser.
  We agree with the district court’s assessment. We further
note that the court gave a thorough limiting instruction to
the jury after the testimony, informing the jurors that they
were not to consider Bolden’s statement as truth, but only
as an explanation of why the investigation proceeded as it
did. This instruction addressed any potential hearsay harm
from the testimony, and did not, as defense counsel claims,
make the testimony seem like an underlying fact of the
investigation. To rule otherwise would negate the course of
investigation rule found in United States v. Akinrinade, 61
F.3d 1279, 1283 (7th Cir. 1995).
  Moreover, even assuming that the jury improperly
considered the evidence for its truth, the evidence was
clearly cumulative, as Eberhart confessed to the agents that
he was Bolden’s supplier, and the jury heard that confes-
sion.
Nos. 03-2068 & 04-1377                                             7

  On appeal, Eberhart further argued that this testimony
violated his constitutional rights under the Confrontation
Clause and the Due Process Clause. We now reaffirm our
rejection of those arguments in Eberhart I:
    First, defendant asserts that the introduction of
    Bolden’s statement violated his rights under the
    Confrontation Clause. . . . The Confrontation Clause
    “does not bar the use of testimonial statement for
    purposes other than establishing the truth of the
    matter asserted.” Crawford v. Washington, [124 S.Ct.
    1354, 1369 n.9 (2004)]. The government, moreover, did
    not dwell on Bolden’s statement. To the contrary, it was
    defense counsel who connected the dots, asserted that
    “E” meant Eberhart, and revisited the issue of Bolden’s
    statement on cross-examination.
    Second, defendant contends that the government vio-
    lated his Due Process rights by misrepresenting to the
    district court that Bolden was not peculiarly within its
    power to produce. Eberhart argues that the district
    court, based on this misinformation, denied his request
    for a missing witness instruction. Eberhart . . . fails to
    point out any misrepresentation made by the govern-
    ment.
Eberhart I, 388 F.3d at 1050-51.1


1
   This case does not, as Eberhart argues, fall under the precedent
of United States v. Silva, 380 F.3d 1018 (7th Cir. 2004). In that
case, the court ruled that the statements at issue could not have
been relevant to any issue other than their truth. Silva, 380 F.3d
at 1020. For example, the court had admitted a police officer’s
statement that a green substance found in the defendant’s car
“later tested positive for cannabis,” even though the defendant
was not charged with an offense related to marijuana, and the
officer had no firsthand knowledge of the test results. In this case,
however, Bolden’s statements about “E” helped the jury to
understand why Bolden was asked to call “E.” This background
                                                      (continued...)
8                                       Nos. 03-2068 & 04-1377

  Finally, omitting the buyer-seller instruction was not
error, “A defendant is only entitled to a buyer-seller instruc-
tion if it is supported by evidence produced at trial.” United
States v. Fort, 998 F.2d 542, 547 (7th Cir. 1993). If an
instruction is inconsistent with the defense’s theory of the
case, it is inappropriate. Id.
   Eberhart defended the conspiracy charge by arguing that
he had a legitimate business relationship with Bolden, that
he was elsewhere on the date of the alleged drug transac-
tion, and that he was not involved in drug sales in any way.
Eberhart did not argue that he should be acquitted because
he and Bolden had a mere buyer-seller relationship.
Because the instruction is inconsistent with Eberhart’s
theory of the case, the district court was correct in omitting
it. Moreover, the defense did not request the instruction.
  Eberhart argues in his Rule 54 statement following
remand that the district court intimated at sentencing
that it believed that other errors occurred at his trial. Any
such alleged errors were not properly preserved and raised
on appeal, and hence we may not consider them.
  While recognizing that the district court had jurisdic-
tion to hear the three preserved claims of error, we re-
main unable to affirm the district court’s decision to grant a
new trial. In our judgment, none of the claims, whether
view individually or collectively, warranted the district


1
  (...continued)
gave context to the recorded phone conversation that the jury
heard. Moreover, the prosecutor in Silva used the statements
during closing arguments as substantive evidence of the defen-
dant’s guilt, and the district court essentially abrogated its own
limiting instruction following the defense’s objection. Id. at 1021.
Nothing of the sort happened here. The two cases are clearly
distinguishable.
Nos. 03-2068 & 04-1377                                    9

court’s action. Hence, we hold that the grant constituted an
abuse of discretion.


                     III. Conclusion
  The district court’s grant of a new trial is hereby RE-
VERSED.


A true Copy:
      Teste:

                        ________________________________
                        Clerk of the United States Court of
                          Appeals for the Seventh Circuit




                   USCA-02-C-0072—1-10-06
