United States v. Benbow

UNITED STATES OF AMERICA v. KENNETH BENBOW, Defendant.

Criminal No. 10-0051-2 (PLF)

Civil Action No. 19-1574 (PLF)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

July 30, 2021

OPINION

Defendant Kenneth Benbow filed a pro se motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence ("Mot.") [Dkt. No. 613], as amended by his supplemental motion to vacate, set aside, or correct his sentence ("Supp. Mot.") [Dkt. No. 642-1], and a memorandum of law [Dkt. No. 642-2] prepared by appointed counsel. The United States opposes the motions. Upon careful consideration of the parties' papers, the arguments at the May 12, 2021 motions hearing, the relevant legal authorities, and the entire record in this case, the Court will deny Mr. Benbow's motions.¹

I. BACKGROUND AND PROCEDURAL HISTORY

A. Pretrial

Defendant Kenneth Benbow's criminal case arises out of his involvement in an interstate drug conspiracy. Mark Pray, a co-defendant of Mr. Benbow's in the case, was the leader of a drug distribution organization operating out of the Barry Farms public housing complex in Washington, D.C. See United States v. Danson, Criminal No. 10-0051, 2020 WL 3467887, *1 (D.D.C. June 25, 2020) (explaining that the nature of the enterprise was to "obtain as much money and things of value as possible through the trafficking of controlled substances"). Mr. Benbow was a close associate of Mr. Pray. See March 6, 2012 AM Trial Tr. at 111 (stating that Mr. Benbow and Mr. Pray were "like brothers"). In 2010, a grand jury indicted Mr. Benbow for crimes related to his role in the drug distribution organization, including participation in conspiracies involving narcotics and racketeering activity. SeeSuperseding Indictment. Mr. Benbow was also indicted for the murder of Van Johnson, a rival drug dealer, and the attempted murder of Steven Robinson. Id. at 37-39. Finally, Mr. Benbow was indicted in two counts of using a firearm during crimes of violence (the murder and attempted murder). Id. at 48-49. The case proceeded toward trial.

In January 2011, Mr. Benbow, along with two of his co-defendants - Mark Pray and Alonzo Marlow - filed a pretrial motion to compel disclosure of certain exculpatory evidence that they sought to use to contest the prosecutor's seeking of the death penalty. United States v. Pray, 764 F. Supp. 2d 184, 186 (D.D.C. 2011); see Mot. to Compel. The motion sought "disclosure of individuals who are equally culpable in the charged murders but will not face the death penalty and disclosure of a summary of issues which impair [government] witnesses' credibility." United States v. Pray, 764 F. Supp. 2d at 186 (internal quotations removed). The government opposed the motion, expressing "grave concerns for the safety of its witnesses." Id. at 188. It pointed out that Mr. Pray and Mr. Marlow had been charged with the murder of a government witness. See id. at 186. Judge Rosemary Collyer, who was assigned to this case until her retirement, denied the motion to compel. Id. She held that "[t]he possibility of violent action against a potential witness - cooperator or not - cannot be ignored," and that "the risks to the lives of others [were] too real to be overcome by Defendants' request." Id.

In August 2011, Mr. Benbow, Mr. Pray, and Mr. Marlow filed pretrial motions seeking, among other things, disclosure of the names of witnesses the government intended to call at trial. See Mot. to Compel; Mot. to Disclose; Mot. for Disc. Order; Mot. for Brady Order. The government opposed, again citing concerns for witness safety. Gov't Omnibus Opp. at 36, 55-56, 59. Judge Collyer held a three-day hearing on the motions, see Nov. 1, 2011 Order at 1, and later issued an opinion and order denying the motions, see id. at 3-5. Because of herconcern for the safety of witnesses, on December 21, 2011, Judge Collyer adopted a policy permitting the government to keep the identity of civilian witnesses private until the Friday before those witnesses were expected to testify. Dec. 21, 2011 Order at 2.

B. Trial

An eight-week jury trial was held from February 2012 to April 2012, during which time the government presented evidence that Mr. Benbow was a participant in the narcotics and RICO conspiracies. For example, the government introduced evidence that in March 2008, Mr. Benbow was involved in a car accident. See Mar. 14, 2012 AM Trial Tr. at 37-39. When police arrived at the scene, Mr. Benbow had fled, but a handgun was found on the ground near the car. Id. at 39. The handgun had rubber bands wrapped around its handle, id. at 54, similar to guns that had been connected to Mr. Pray's drug distribution activities, see id. at 189; Feb. 6, 2012 AM Trial Tr. at 39. A later search of the car produced crack cocaine, a digital scale, and papers with Mr. Benbow's name on them. Mar. 14, 2012 AM Trial. Tr. at 40, 56, 59-60. FBI Special Agent Catherine Hanna testified about calls between Mr. Benbow and Mr. Pray in 2020. Those calls concerned the acquisition and distribution of cocaine. See Feb. 15, 2012 AM Trial Tr. at 29-36, 42-47. One of those calls led to a U.S. Park Police detective witnessing Mr. Benbow engage in what appeared to be a drug transaction with Mr. Pray. Mr. Benbow drove to a Home Depot parking lot, where Mr. Pray and Mr. Marlow parked next to him in a Range Rover. Feb. 15, 2012 PM Trial Tr. at 59-60. Mr. Benbow, with a bag in hand, got into the Range Rover for about five minutes. Id. at 61. When Mr. Benbow exited the Range Rover, he did not have the bag with him. Id.

On March 2, 2012, the government disclosed its witness list for the upcoming week. Included on that list was Darryl Travers, Mr. Benbow's stepbrother. See March 2, 2012Memo. The government also provided Jencks and Giglio materials related to Mr. Travers. See id. These materials included summaries of FBI interviews of Mr. Travers; notes from a Park Police interview of Mr. Travers concerning the murder of Van Johnson and the attempted murder of Steven Robinson; and transcripts of Mr. Travers' grand jury testimony. U.S. Opp. at 11-12, 12 n.13. Mr. Travers testified on March 6 and March 7, 2012. See Mar. 6, 2012 AM Trial Tr.; Mar. 7, 2012 AM Trial Tr.

Mr. Travers testified about his relationship with Mr. Benbow and about Mr. Benbow's relationship with Mr. Pray. According to Mr. Travers, he and Mr. Benbow met in 1996 when Mr. Travers' father married Mr. Benbow's mother. Mar. 6, 2012 AM Trial Tr. at 81. Beginning in 2000, Mr. Travers and Mr. Benbow sold drugs together. Id. at 89. They did so until Mr. Travers' arrest in 2006. Id. at 96. Mr. Travers testified that at the time of his arrest, Mr. Benbow and Mr. Pray "were friends, they was cool," and that the three of them would go to clubs together. Id. at 97-98. He also testified that that in 2005 or 2006, he and Mr. Benbow bought cocaine from Mr. Pray on at least two occasions. Id. at 98. Mr. Travers would give his money to Mr. Benbow, who would in turn give it to Mr. Pray in exchange for cocaine. Id. at 98-99. After his arrest in 2006, Mr. Travers was incarcerated for two years. He testified that when he returned to the community in 2008, Mr. Benbow and Mr. Pray were closer than they were in 2006 - "like brothers." Id. at 110-11.

On cross-examination, Mr. Travers agreed that neither he nor, to his knowledge, Mr. Benbow had ever sold drugs in Barry Farms, where Mr. Pray's operation was based. Mar. 6, 2012 PM Trial Tr. at 68. He also stated that he and Mr. Benbow had purchased narcotics from "a few different people," id. at 66, and that the two instances in which he purchased narcotics from Mr. Pray were a small portion of the drug transactions that Mr. Traversparticipated in during that time, id. at 70. Mr. Travers agreed that he was not "in business with Mr. Pray." Id. at 70. When asked if Mr. Pray and Mr. Benbow were partners or if Mr. Benbow worked for Mr. Pray or vice versa, Mr. Travers stated: "No, I wouldn't say that." Id. at 72. He also confirmed that he and Mr. Benbow neither shared their proceeds with Mr. Pray, nor did Mr. Pray share proceeds from his drug distribution activities with them. Id. at 76.

On September 23, 2008, Steven Robinson and Van Johnson, drug dealers from 37th Street, left a club called Tradewinds and drove down Branch Avenue. Mar. 6, 2012 AM Trial Tr. at 25-27, 53-54. At some point, gunshots began hitting their car. Id. at 27-28, 54. Shots struck Mr. Johnson in the chest and Mr. Robinson in the chest and side. Id. at 28-30. The car flipped over, and Mr. Robinson lost consciousness. Id. at 32. Mr. Johnson ultimately died of gunshot wounds. Id. at 33. Mr. Travers' testimony connected Mr. Benbow and Mr. Pray to the shooting. Mr. Travers testified that in September 2008, Mr. Benbow was concerned because a man from 37th Street was "running his mouth" and falsely associating Mr. Benbow with a group from 17th Street when Mr. Benbow was from 18th Street, which is a "different group of people." Id. at 119-20. Mr. Travers testified that this would be a dangerous rumor because it could lead to "playing with [Mr. Benbow's] life" due to an existing conflict between the 37th Street and 17th Street groups. Id. at 126.

Mr. Travers testified that on the morning of September 24, 2008, he awoke to several missed phone calls from Mr. Benbow. Mar. 6, 2012 AM Trial Tr. at 127. When Mr. Travers called back, Mr. Benbow told him to come to Barry Farms. Id. When Mr. Travers arrived, Mr. Benbow and Mr. Pray were both present and explained that they had shot at a car on Branch Avenue and flipped it. Mar. 6, 2012 PM Trial Tr. at 8, 10. Mr. Pray demonstrated shooting two guns out of the sunroof of the car they were driving, and Mr. Benbow "was justlaughing, like he just had this little smile on his face." Id. at 9. Mr. Travers testified that he understood Mr. Benbow had been driving the car. See id. at 9 ("[Mr. Benbow] . . . crashed the car leaving the scene."). Mr. Benbow later told Mr. Travers that the man they had shot at was...