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United States of America v. Mark Pray and Kenneth Benbow

June 21, 2012

UNITED STATES OF AMERICA,
v.
MARK PRAY AND KENNETH BENBOW, DEFENDANTS



The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge

MEMORANDUM OPINION

Kenneth Benbow moves for a judgment of acquittal or for a new trial after a jury convicted him of narcotics conspiracy; RICO*fn1 conspiracy; two counts of violence in aid of racketeering (VICAR) in a murder and attempted murder; possession with intent to distribute cocaine base (otherwise known as crack); two counts of using, carrying and possessing a firearm in the VICAR murder and attempted murder; and two counts of unlawful use of communication facilities to aid drug trafficking.

Mr. Benbow argues that some of these verdicts are contrary to the weight of the evidence, the verdicts are not supported by substantial evidence, the Court erred in charging the jury and in refusing to charge the jury as he requested, and the Court erred in denying his motion for judgment of acquittal at the close of the Government's case in chief. The motion has been joined, in relevant part, by co-defendant Mark Pray. A third co-defendant, Alonzo Marlow, has not sought acquittal or a new trial.

Rule 29(c)(2) of the Federal Rules of Criminal Procedure provides that a court may set aside a jury's verdict and enter a judgment of acquittal. The court's review of the jury's verdict, however, is limited to a determination of "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." United States v. Washington, 12 F.3d 1128, 1135-36 (D.C. Cir. 1994) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). Federal Rule of Criminal Procedure 33(a) provides that a court may order a new trial "if the interest of justice so requires."

The trial here was hotly contested and Mr. Benbow's defense counsel attempted to establish a wide distance between the cocaine dealing between Mr. Benbow and Mr. Pray and Mr. Pray's position as head of a RICO drug organization, labeled the Pray Drug Organization during trial. His position was that the Benbow-Pray dealings constituted a separate and distinct conspiracy from the Pray Drug Organization. That this attempt failed is obvious from the jury's verdicts. Reviewing the evidence from trial, the Court cannot say that the verdicts were irrational or that justice was not served. The motion will be denied.

I

Jury selection in this case began on January 30, 2012, and on April 3, 2012, the jury returned its verdicts against co-Defendants Mark Pray, Alonzo Marlow, and Kenneth Benbow. As related to Mr. Benbow, Count 1 charged a narcotics conspiracy involving large quantities of phencyclidine (also known as PCP), cocaine, and cocaine base (also known as crack); Count 2 charged a RICO conspiracy; Count 4 charged the murder of Van Johnson, Jr., as violence in aid of racketeering (VICAR) and Count 5 charged the attempted murder of Stephen Anderson as VICAR; Count 13 charged possession with intent to distribute crack; Counts 34 and 35 charged using, carrying and possessing a firearm in relation to the VICAR murder and attempted murder; and counts 55 and 63 charged unlawful use of a communication facility, i.e. a cellphone, in furtherance of drug trafficking. Mr. Pray was charged with these same counts except Count 13 (distribution of crack on a certain date), as well as multiple other counts not at issue here.

Mr. Benbow acknowledges that:

The evidence adduced at trial established a narcotics conspiracy operating chiefly in the Barry Farm section of southeast Washington, DC. [sic] The primary drug distributed by the conspiracy was phencyclidine. Additional evidence established that members of the conspiracy also traded in marijuana, cocaine, and cocaine base.

Def.'s Mem. [Dkt. # 413-1] at 4.

A. PCP Distribution

While Mr. Benbow maintains his innocence of all drug charges, he "specifically draws this Honorable Court['s] attention to his accountability for any amount of phencyclidine," id. at 5, for which he asserts the proof was lacking. He argues that there was neither testimony that he participated in any PCP transactions with Mr. Pray nor evidence by wiretaps or seized contraband that he knew or should have known of the conspiracy's PCP trafficking. Thus, he contends, no rational jury could have found him guilty of a conspiracy involving the distribution of PCP.

In the present motion, Mr. Benbow does not contest that the evidence supported a jury finding that he conspired with Mr. Pray and others in a narcotics conspiracy that distributed marijuana, cocaine and cocaine base. In fact, the evidence was clear -- and supported by testimony, wiretaps, and seized contraband -- that Messrs. Benbow and Pray often joined together in buying large quantities of cocaine for distribution. Mr. Benbow only challenges the jury's conclusion that he also was guilty of PCP trafficking. Yet a conspirator may be convicted of substantive offenses committed by co-conspirators in the course of and in furtherance of the conspiracy. See Pinkerton v. United States, 328 U.S. 640, 645-47 (1946). The jury did not credit Mr. Benbow's defense that he and Mr. Pray engaged in a separate cocaine conspiracy that was unrelated to the charged multi-drug conspiracy. Having concluded as a matter of fact that Mr. Benbow was part of the Pray Drug Organization, the jury could properly attribute such substantive offenses committed by co-conspirators to Mr. Benbow as they thought the evidence permitted.

The "jury is entitled to draw a vast range of reasonable inferences from [the] evidence." United States v. Long, 905 F.2d 1572, 1576 (D.C. Cir. 1990); see also United States v. Harrison, 931 F.2d 65, 71-73 (D.C. Cir. 1991). While the jury might have found no link between Mr. Benbow and the Pray Drug Organization, or PCP distribution, those were certainly not the only inferences that could be drawn from the evidence. There was clearly evidence from which a rational finder of fact could have found that Mr. Benbow was a co-conspirator in the Pray Drug Organization and equally culpable ...


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