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United States v. Wysinger

United States District Court, W.D. Virginia, Harrisonburg Division

June 25, 2019

UNITED STATES OF AMERICA
v.
KENDALL DEMARKO WYSINGER

          MEMORANDUM OPINION

          ELIZABETH K. DILLON UNITED STATES DISTRICT JUDGE.

         Defendant Kendall Demarko Wysinger was charged in a six-count superseding indictment, and he pleaded not guilty and proceeded to trial. The jury found him guilty of the first five counts of the indictment and not guilty on Count 6. Pending before the court is defendant's motion for judgment of acquittal (Dkt. No. 130), to which the United States has responded. (Dkt. No. 132.) Neither party has requested a hearing.

         For the reasons set forth herein, the motion for acquittal will be denied in part and granted in part. It will be granted as to Count 5 and will be denied in all other respects.

         I. BACKGROUND

         The court will discuss pertinent facts in the context of discussing each count challenged by Wysinger. The jury convicted him of the following five counts:

Count 1-conspiracy to commit sex trafficking (naming four victims: M.A.J., C.S.S., S.I.F., D.L.F.), in violation of 18 U.S.C. §§ 1591(a)(1) and 1594(c);
Count 2-interstate transportation for prostitution of M.A.J., in violation of 18 U.S.C. § 2421;
Count 3-possession with intent to distribute and distribution of fentanyl to C.S.S., causing serious bodily injury and death, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C);
Count 4-possession with intent to distribute and distribution of fentanyl to T.J.M., causing serious bodily injury, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C); and Count 5-evidence tampering, in violation of 18 U.S.C. § 1512(c)(1).

(Superseding Indictment, Dkt. No. 32.) In his motion, Wysinger challenges the jury's verdict on all counts but Count 2.

         II. DISCUSSION

         A. Standard of Review

         Wysinger's motion for judgment of acquittal is brought pursuant to Federal Rule of Criminal Procedure 29. That rule provides that “the court on the defendant's motion must enter a judgment of acquittal of any offense for which the evidence is insufficient to sustain a conviction.” Fed. R. Crim. P. 29(a). “A defendant challenging the sufficiency of the evidence faces a heavy burden . . . . ” United States v. Young, 609 F.3d 348, 355 (4th Cir. 2010) (internal citations and alterations omitted). Specifically, “[t]he jury's verdict must stand unless . . . no rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” United States v. Royal, 731 F.3d 333, 337 (4th Cir. 2013) (citing Young, 609 F.3d at 355).

         Put differently, the motion should be denied if the jury's verdict on any given charge is supported by “substantial evidence.” United States v. Alvarez, 351 F.3d 126, 129 (4th Cir. 2003). “[S]ubstantial evidence is evidence that a reasonable finder of fact could accept as adequate and sufficient to support a conclusion of a defendant's guilt beyond a reasonable doubt.” United States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996). In addressing a claim of insufficient evidence, moreover, this court must “view the evidence and the reasonable inferences to be drawn therefrom in the light most favorable to the [g]overnment . . . . ” Young, 609 F.3d at 355 (citation omitted).

         B. Count 1

         The jury found Wysinger guilty of Count 1, in which he was charged with conspiracy to commit sex trafficking in violation of 18 U.S.C. §§ 1591(a)(1) and 1594(c). To prove that charge, the government was required to prove, beyond a reasonable doubt, first, that two or more persons formed or entered into a conspiracy, understanding, or agreement to commit sex trafficking; and second, that at some time during the existence or life of the conspiracy or agreement, the defendant deliberately joined it, knowing its purpose.

         Wysinger argues that there was insufficient evidence to convict him of this charge because there was no evidence that any agreement was ever reached or that Wysinger was involved with any other person to carry out the “conspiracy.” He contends that the only persons with whom he was shown to have an agreement were the prostitutes themselves. As such, he contends that “[a]t most, the government has proven that the defendant was involved as a pimp.” (Mot. Acquittal 3, Dkt. No. 130.) He argues that the evidence about Leslee Garza-which was that she took and ...


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