United States District Court, W.D. Virginia, Harrisonburg Division
ELIZABETH K. DILLON UNITED STATES DISTRICT JUDGE.
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.
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.
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
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.
(Superseding Indictment, Dkt. No. 32.) In his motion,
Wysinger challenges the jury's verdict on all counts but
Standard of Review
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).
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
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
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 ...