09-5265-cr
USA v. Clarke
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New
York, on the 4th day of May, two thousand eleven.
PRESENT:
JOSEPH M. McLAUGHLIN,
GUIDO CALABRESI,
PETER W. HALL,
Circuit Judges.
__________________________________________
United States of America,
Appellee,
v. 09-5265-cr
Winston Clarke,
Defendant-Appellant,
__________________________________________
JAMES M. BRANDEN, Law Offices of James M. Branden, New
York, New York, for Defendant-Appellant Winston Clarke.
WINSTON CLARKE, pro se, Fort Dix, New Jersey.
CHI T. STEVE KWOK, Assistant United States Attorney
(Loyaan A. Egal, Michael Bosworth, Assistant United States
Attorneys, Of Counsel, on the brief), for Preet Bharara, United
States Attorney for the Southern District of New York, New
York, New York, for Appellee United States of America.
Appeal from a judgment of conviction of the United States District Court for the Southern
District of New York (Batts, J.) sentencing Defendant-Appellant Winston Clarke principally to 180
months in prison for conspiring to distribute and possess with intent to distribute at least 1,000
kilograms of marijuana in violation of 21 U.S.C. § 846. UPON DUE CONSIDERATION, it is
hereby ORDERED, ADJUDGED, AND DECREED that the judgement of the district court be
AFFIRMED.
Clarke argues through counsel that certain restrictions imposed by the district court on his
cross-examination of a government witness violated the Confrontation Clause of the Sixth
Amendment of the United States Constitution. He makes the same argument with respect to an
evidentiary ruling by the district court, refusing to receive into evidence the cooperation agreement
between the Government and one of its witnesses. Clarke also raises several claims pro se, inter
alia, that the conspiracy charged in the indictment ended more than five years before his
prosecution thereby rendering his conviction time-barred. We assume the parties’ familiarity with
the facts, procedural history, and the issues on appeal.
Any error the district court may have made in limiting Clarke’s cross-examination of the
Government’s cooperating witness was harmless beyond a reasonable doubt. Cf. Chapman v.
California, 386 U.S. 18, 24 (1967) (establishing standard of review for asserted constitutional
violations of criminal procedure rules). The same is true of the district court’s handling of the
written cooperation agreement itself. The record shows that Clarke was allowed to question the
cooperating witness extensively about his understanding of the cooperation agreement, what he
stood to gain from it and what he believed were his responsibilities under it. Additionally, the
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Government elicited testimony from the cooperating witness about the nature of the cooperation
agreement and his interpretation of it. Thus, with respect to the effect the cooperation agreement
may have had on the cooperating witness’s motive to testify, the jury was exposed to sufficient
facts from which the jurors could draw inferences about the witness’s credibility. Cf. Davis v.
Alaska, 415 U.S. 308, 318 (1974) (identifying the point at which limitations on a defendant’s right
to cross-examine a government’s witness implicates the Confrontation Clause).
Clarke’s prosecution was timely. He was charged with and convicted of participating in a
conspiracy running through early 2002. Evidence relating to Detective Murray’s search of a van on
Monticello Avenue around December 15, 2001 is sufficient to show the conspiracy continued
through at least that date. Because Clarke was indicted in January 2005, his prosecution was within
the five year statute of limitations applicable to his crime. See 18 U.S.C. § 3282.
We have considered all of Clarke’s remaining arguments and conclude that they are without
merit. Accordingly, the judgment of the district court is AFFIRMED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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