THE UNITE D STATE S DIST RICT COURT F OR THE DIS TRICT OF COLUM BIA

____________________________________) UNITED STAT ES O F AMERICA, ) ) v. ) Cr im inal No. 10-cr-51 ( RMC) ) MARK P RAY and ) KENN ETH B ENBOW, ) ) Defendan ts ) ) ____________________________________)
MEMORAN DUM OP INION Kenne th Be nbow moves for a judg ment of ac quittal or for a new tria l after

a jury convicted him of na

rcotics c onspiracy ; RI CO conspirac y ; two counts of violence in aid of 1
rac ketee ring (VI CAR) in a murder and attempted mur der; possession with intent to distribut e
coca ine base (otherw ise known as c rac k); two counts of using , car rying a nd possessing a

firea rm in the VI CAR murder and attempted murder; a nd two counts of unlawf

ul use of communication fac iliti es to aid drugtraff

icking
. Mr. B enbow a

rgues that some of the se ver dicts are contra ry to the weight of the evidenc e, the ve rdicts ar e not supported by substantial evidence , the Court err ed in cha rg ing the jury and in re fusing to char g e the jury as he r equeste d, and the Court er red in de nying his motion for judg ment of ac quittal at the close of the Gover nment’s ca se in chief

. The motion has bee n joined, in releva

nt part, by

co-de fenda

nt Mark Pray . A third co-de fenda nt, Alonzo M arlow, ha s not sought a cquittal or a ne w trial. Title 18, United States Code § 1962(d), makes it a cr ime to conspire to par ticipate in a 1 rac ketee r influenc ed cor

rupt org anization (RI CO).Rule 29(c) (2) of the Fe dera l Rules of Criminal P roce dure pr ovides that a c ourt may set aside a

jury ’s ver dict and ente r a judg ment of ac quittal. The court’ s review of the jury ’s verdic t, however , is lim ited to a deter mination of “whe ther, a fter vie wing the evidenc e in the light most favor able to the pr osecution, any rational trier

of fa ct could have found the e ssential elements of the crime be y ond a re asonable doubt.” United States v. W ashington , 12 F.3d 1128, 1135-36 (D.C. Cir. 1994) ( quoting Jack son v. Virginia , 443 U.S. 307, 319 (1979)). F eder al Rule of Criminal Procedur e 33(a ) provides that a cour t may order a new trial “if the inter est of justice so require s.” The trial he re w as hotly contested a

nd Mr. B enbow’ s defe nse counse l attempted to establish a wide distanc e betwe en the c ocaine dealingbetwee n Mr. B enbow a nd Mr. Pray

and Mr. Pray ’s position as head of a RI CO drugorg anization, labeled the Pra y DrugOrg anization during trial. His position was that the Be nbow-Pray dealing s constituted a sepa rate and distinct conspirac y

from the Pra

y DrugOrg anization. That this attempt failed is obvious from the jury ’s verdic ts. Reviewing the evidenc e fr om trial, the Court cannot say that the ver dicts were irrational or that justice wa s not served. The motion will be denie d. I J ury selec tion in thi s case beg an on January 30, 2012, and on Apr il 3, 2012, the jury returne d its verdicts ag ainst co-De fenda nts Mark Pray , Alonzo Marlow, and Ke nneth Be nbow. As re lated to Mr. B enbow, Count 1 cha rg ed a na rcotics c onspiracy

involving lar g e quantities of phenc y clidine (a lso known as PCP ), coc aine, a nd coca ine base (also known a s
cra ck); Count 2 char g ed a RI CO conspirac y ; Count 4 charg ed the murde r of Va n J ohnson, J r., as -2-violence in a id of rac ketee ring (VI CAR) and Count 5 char g ed the attempted murder of Stephen Ander son as VI CAR; C ount 13 char g ed possession with intent to dist ribute cr ack; Counts 34 and 35 char g ed using , car

rying a nd possessing a

firea rm in relation to the VI CAR murder and attempted murde r; and c ounts 55 and 63 cha rg ed unlawf

ul use of a c ommunication fac ility , i.e. a cellphone, in f

urthera nce of drugtraff

icking . Mr. Pray

was c harg ed with these same counts except Count 13 (distributi on of cr ack on a cer tain date) , as we ll as multi ple other c ounts not at issue here
. Mr. B enbow a cknowledg es that:

The e vidence adduce d at trial established a narc otics conspirac y opera ting c hiefly

in the Ba rry Fa rm section of southea st W ashing ton, DC. [s ic] The primary

drugdistributed by

the conspira cy

was phency clidine. Additional evidenc e esta blished that members of the conspirac y

also trade d in marijuana, c ocaine , and coc aine ba se. Def .’s Mem. [Dkt. # 413-1] at 4.

A. P CP Distribution Whil e Mr. B enbow maintains his innocenc e of a ll drug char g es, he “ specific ally draw s this Honorable Court[’s] attention to his accounta bility for a ny amount of phenc y clidine,” id . at 5, for which he a sserts the proof was lac king. H e ar g ues that there was ne ither testimony that he par

ticipated in any

PCP transac tions with Mr. P ray nor evide nce by

wireta ps or seized contra band that he kne w or should have known of the c onspiracy ’s PCP traff icking . Thus, he contends, no rational jury could have found him g uilty of a c onspiracy

involving the distribution of PCP. I n the pre sent motion, Mr. Benbow does not contest that the e vidence supported a jury finding that he conspire d with Mr. Pray and other s in a narc otics conspirac y that distributed
-3-marijuana , coca ine and c ocaine base. I n fac t, the evidenc e wa s clea r – and suppor

ted by testimony , wireta

ps, and seized contra

band – that Messrs. B enbow a nd Pray often joined tog ether in buy ing la

rg e quantities of c ocaine for distribution. Mr. Be nbow only challeng es the jury ’s conclusion that he a lso was g uilty of PCP t raf

ficking . Yet a c onspirator may be convic ted of substantive offe nses committed by co-c onspirators in the cour se of a nd in further ance of the conspirac y . See Pinkerton v. U nited States , 328 U.S. 640, 645-47 (1946). The jury did not credit Mr. B enbow’ s defe nse that he a nd Mr. Pray

eng ag ed in a se parate coc aine c onspiracy that was unrelated to the cha

rg ed multi-drugconspirac y . Havingconclude d as a matter of f act that Mr. Be nbow was pa

rt of the Pra

y DrugOrg anization, the jury could prope rly

attribute such substantive offe nses committed by co-c onspirators to Mr. B enbow a s they thought the e vidence permitted. The “

jury is entitled to draw a va st rang e of r easona ble infer ence s from [the] evidenc e.” 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 f ound no link betwee n Mr. B enbow a

nd the Pray

DrugOrg anization, or PCP distribution, t hose we re c erta inly not the only

infere nces tha

t could be dra

wn from the e vidence . There was c lear ly evidenc e fr om which a r ational finder

of fa ct could have found that Mr. B enbow wa s a co- conspirator in the Pray DrugOrg anization and equally culpable f

or its multi -drugdistribution. The Court has no basis to enter a

judgme nt of ac quittal or a newtrial on this issue for either Mr. B enbow or

Mr. Pray
. B. Crim es of Violence

Dar ryl Trave rs testified as a

Gover nment witness to conver sations he had with Mr.
-4-Pray , with Mr. Be nbow in immediate attenda nce, a bout the shooting of V an Johnson, J r., and Stephen Ander son. As the desc ription went, Messrs. Pray and B enbow f

ollowed Mr. Johnson from a c lub in Prince Geor g e’s County ; Mr. Be nbow drove the ca r while Mr. Pra

y stood on a seat and stuck his upper

body out of the sunroof of

the ca r; Mr. Pray

held a gun in eac h hand and f ired them simult aneously , striking the c ar c ontaining Mr . Ander son and Mr. Johnson m ultiple tim es (re sulting in the death of Mr. Johns on and injuries to Mr. Ande rson that kept him in the hospital for a lmost a y ear); and the r ental ca r driven by

Mr. B enbow wa s damag ed in the proc ess when it hit a curb or

some other objec t (neither vic tim had a gun or took any action in re sponse to the shots). This story

was re counted, a ccor ding to the te stimony , by Mr. Pray while he a

nd Mr. Be nbow wer e both ec static from the e x citement of the event. Mr. B enbow ha d called Mr
. Trave rs to pick them up bec ause the ir renta l car was no long er dr ivable. Mr. B enbow told Mr. Trave rs that Mr. Johnson was shot because he had ma de fa lse claims about Mr. B enbow whic h could have been da

ng erous f or Mr. B enbow. The pa rties stipulated to the time of the shooting . Cell phone rec ords established that a ce ll phone known to be used by Mr. Pray was in conta ct with a ce ll phone known to be used by Mr. B enbow dur ing that time. From these f acts, Mr. B enbow a

rgues that “[n]o
rea sonable trier

of fa ct could ig nore the obvious conflict [between] the testimony of Da rry l Trave rs and the unde niable phone r ecor ds . . . and the g overnme nt failed to off er a ny rea sonable explanation for the cle ar c onflict.” De f.’s Mem. at 9. I n other wor ds, if Mr. B enbow a nd Mr. Pray wer e talkingby

phone, it would have be en impossible for Mr. B enbow to be a lso driving a
car at hig h speed while Mr. Pray was a lso shooting two guns as they passed their

targ et. The Gover nment sug g ested in its closing a rgument that the phone c onnection mig ht only have be en a -5-stray

“butt call.” Mr . Be nbow ca lls that idea “simply absurd” and ar g ues that “[n]o reasonable jury could have acc epted suc h an unsupported e x planation.” Id . As a re sult, Mr. Benbow argues that there was re asonable doubt whether he committed the shooting
. 2 I t was for the jury to decide whether

the evidenc e showe d that Mr. B enbow wa s driving the ca

r while Mr. Pra

y was play ing c owboy

with multi ple fire arms fr om the sunroof. The e vidence of the c ell phone conne ction was be fore the jury , as wa s the testimony of Mr. Trave rs. Def

ense c ounsel argued the f irst point and the Gover

nment argued the latter . Whil e Mr. Be nbow attac ks the Gover nment’s “unsupporte d explanation” for the c ontact betwe en the two men’s ce ll phones, the members of the jury could have used their own life experience s and common sense to ac cept or reje ct that explanation. The jury weig hed and r esolved possible conflicts in the evide nce a nd assessed w itness cre dibilit y , matters which a re pe culiarly

within its province and into which cour ts are loath to intrude. United States v. Sanc hez , 969 F.2d 1409, 1414 (2d Cir. 1992). The evidenc e wa s sufficient f or the jury

to decide the question and the Court cannot usurp its role. United States v. Autori , 212 F.3d 105, 120 ( 2d Cir. 2000).

The Court finds no basis to enter a judg ment of ac quittal or order a new trial on the jury verdic ts that Mr. Be nbow and Mr. Pra y wer e guilty

of VI CAR murder and attempted murder in the de ath of Mr. Johnson and woundingof Mr. Ande rson and that they used, ca rried and possessed a

g un in committi ng those crimes.

I n a throw- awa

y line, Mr. B enbow a lso sugg ests that there was re asonable doubt that 2 the alleg ed motive for the killing qualified the crime a s violence in a id of rac ketee ring . Def .’s Mem. at 9. He made no f urther a rgument on the point and the Court dee ms it concede d. The Gover nment argued that Messrs. B enbow a nd Pray murdere d Mr. J ohnson to enhanc e and maintain their re putations and positions i n the RI CO enterprise. By their ver dicts, the jury

ag ree d and the Court finds suff

icient evidenc e to support its findings.

-6-C. Telephone Use Charges Title 21 U.S.C. § 843(b) makes it unlawful to use a communications fac ility

to “fa cilitat[ e] the commission of any act or acts c onstitut ing a

felony” under

fede ral drug

laws. Mr. Be nbow cha lleng es his conviction for violating21 U.S.C. § 843(b) as it relates to Count 63.

The c alls in question were betwee n Mr. B enbow a nd Mr. Pray

on Fe bruar

y 23, 2010 (ac tivations ## 5751, 5752, 5762 and 5791, introduced a s Ex hibits 100 and 101). The c alls
wer e re corde d on a lawf

ul wiretap a

nd occur red a pproxi mately

a y ear afte r the shooting s of Mr. J ohnson and Mr. Ande rson. L aw e nforc ement had visited Mr. B enbow’ s residenc e and ta lked to his girlf riend c oncer

ning he r knowledg e of the renta l car and dama g e to the ca

r on the night of the double shooting s (the ca r had be en re nted in her na me). The rea fter, Mr . Be nbow ca lled Mr. Pray and expressed g reat conce rn about the que stions. He speculated that Mr. Tra vers ( known as “Ga ng sta”) must have been the source of information concer ning the car

and, by infere nce, that Mr. Tra vers infor med the police that they

wer e re sponsible for the shooting s. 3 Mr. B enbow a

rgues that no evide nce ties this ca ll to drug de aling ; at most, it involved an attempt by

the par ticipants to hide their involvement in the shooting. H oweve r, later in this same call Mr. B enbow told Mr. Pray , “I ’m about to, uh, I ’m about to meet my man [i dentified a s a re fer ence to a drugtransac tion] rig ht quick. Bout thre e thirty and shit, then I ’m a, uh’ I ’m a try

to figure out whe re the f*** you at, man.” Id . This part of the c onversa tion clear ly links the call to narc otics traff icking
. The c omplete evidenc e of the call supports the jury ’s infer ence and/or c redibility
The Gove rnment’s witness testified that the questions to Mr. Be nbow’s g irlfriend w ere 3 intended to produc e the c oncer n that they

did and to prompt g uilty

phone ca lls between Me ssrs. Be nbow and Pra

y , which they

did. -7-finding from the Gove rnment’s witness a s to the meaningof the quoted pa rt of the F ebrua

ry 23, 2010 call and its re lationship to facilitation of a violation of fe dera l druglaws. The Court f inds no basis to disturb the jury ’s finding by either a judgme nt of ac quittal or a newtrial for e ither movant. D. Jury Instructions

At Mr. B enbow’ s reque st, the Court orally instructed the jury

on his defense of multipl e conspira cies. Additionally , the Court provided a written instruction to the jury on multipl e conspira cies, a s reque sted by Mr. B enbow. Instructions reque sted by Mr. Pray wer e also included in the Court’s ora l and written instructions to the jury . Howeve r, the Court did not submit t o the jury

the def ense the ories of the case prepa red by Mr. B enbow or

Mr. Pray and only
rea d them orally . Messrs. B enbow a nd Pray argue that this failure to include their theor ies of the defe nse in the written jury instructions constituted error in violation of their rig hts to due proce ss and re quires a judg ment of ac quittal or a new trial. 4 J ury instructions were discussed betwe en the pa rties and the Court on multiple
occa sions and the Court provided the pa rties with its proposed final F inal Instructions on Marc h 22, 2012, see Dkt. # 388, and instructed the jury later that same date . On Marc h 27, 2012, afte r the jury had bee n deliberating, but soon af ter the instruc tions were poste d on the docke t, Mr. Pray filed a motion askingthe Court to submit a wr itten copy of his theory

of the c ase to the jury . Mr.

The Court notes that the instructions we re r ead to the jur y on Marc h 22, 2012, and 4 enter ed on the doc ket on Marc h 26, 2012. Mr. Pray objected to the f

ailure to include his theory of def ense by motion filed on March 27, seeDkt. # 389, with which Mr. B enbow late r joined without substantive argument. SeeDkt. # 391. In the pendingmotion, Mr. Benbowhas advanc ed ar g uments about the bac k of a written copy of his defe nse theory

with the instructions g iven to the jury , a motion with which Mr. Pray joins without substantive argument. -8-Be nbow joined the motion. SeeDkt. ## 389, 391. On Marc h 27, 2012, the Court denied the

motions. SeeDkt. # 392.

Mr. B enbow a

rgues that the Court’s fa ilure to include his theory of the c ase in its written instructions “impermissibl[ y ] devalued this vital inst ruction . . . over the def ense’ s objection.” De f.’s Mem. at 11. Be cause instructions are to be taken a s a whole, Mr . Be nbow argues that the omission of his defense theory from the wr itten instructions led the jury to focus on, or ig nore, one instruction over the othe rs. Id. at 12.

The Court denie d the motions to send the jury written copie s of the De fenda nts’ respe ctive theor ies of def ense be cause its inst ructions ade quately conveyed the leg al standar ds and def enses. “A de fenda

nt in a criminal ca se is entitled to adequate jury instructions on his 5 theory of def ense, pr ovided that there is evidence to rea sonably support such a the ory .” United States v. Howard , 245 F. Supp. 2d 24, 39 (D.D .C. 2003) (quoting United States v. Hopk ins , 716 F.2d 739, 749 ( 10th Cir. 1982)). Howe ver, “ [a] defe ndant has no right to have any instruction on [t he def endant’ s defe nse theory] given in the pa rticular f orm he de sired, or w ith any specia l emphasis.” Hopkins , 716 F.2d at 750. I ndeed, be cause there is “no constitutional right to a written copy

of jury instructions,” oral instructions that ade quately convey the def endant’ s theory of def ense f ulfill a defe ndant’s due pr ocess r ights. W illiams v. Harrison , 2008 WL 3925801, at *3-5 (S.D. Cal. 2008), rev’d in part on other grounds , 368 Fe d. Appx. 764, 765 (9th C ir. 2010) (unpublished). F or most of the ce nturies of c ommon law, judge s did not supply written copie s of jury instructions for deliber ations at all.
As submitted, the defe nse “the ories of the case ” we re a dvocac y piece s that would have 5 been totally

inappropriate for a

judge to deliver to a jury
.

-9-Def endants’ a

rgument is that the omissi on of their theor ies of def ense g ave undue emphasis to the other pa

rts of the jury

instructions. The Court disag ree s. Wi th the advoca cy
remove d from his proposed “ theory of def ense,” Mr. Pray

advanc ed g ener al denials of guilt as to all char g ed off

enses a nd asser tions that the Government f ailed to meet its burden of proof. The Final Instructions sufficiently define d ever

y element of

the cha rg ed off enses; instructed the jury that the Gover

nment bore the burden of proof be y ond a re asonable doubt; and specific ally direc ted that the jury

must acquit if the jury

finds that the Gover

nment failed to mee t its burden. Mr. B enbow a dvance d a diffe rent de fense ; he ar g ued that the Gove rnment’s e vidence showed multipl e conspira cies a

nd failed to e stablish that he was guilty of conspira cy

with the Pray

Drug Org anization as char g ed. The Court included in its written jury instructions an instruction on multipl e conspira cies, a s counsel re quested. The jury was instructe d that they

must find that Mr. Be nbow was a

member of

the cha rg ed conspira cy

in order to c onvict him. Further , the jury was instructed that if they

found that he w as a me mber of a differ ent conspira cy , he must be found not g uilty of the c harg ed conspira cy . Counsel for co- Def endants Pray

and B enbow e laborated on their theorie s of def

ense, of course , in their closing arguments. The Court finds, ag ain, that the ora l and written instructions ade quately conveyed these De fenda

nts’ theories of

defe nse and no violation of their constitutional rights occ urre d. There is no basis to gra

nt a judg ment of ac quittal or a newtrial.

-10-II For the re asons g iven, the motion for a judgment of ac quittal or for a new tria l, Dkt. # 413, advanc ed by

Def endants B enbow a

nd Pray will be denied. A me morializi ngOrde r
acc ompanies this Memorandum Opinion. Date: June 21, 2012 /s/ ROSEMARY M. COL L YER United States District J udg e

-11-