                      UNITED STATES DISTRICT COURT
                      FOR THE DISTRICT OF COLUMBIA
____________________________________
                                     )
UNITED STATES OF AMERICA            )
                                     )
        v.                          )  Crim. Action No. 12-cr-266 (ABJ) (3)
                                     )
ORAL GEORGE THOMPSON,                )
a.k.a. “Chad,”                       )
                  Defendant.         )
____________________________________)

                                  MEMORANDUM OPINION

       On March 31, 2017, defendants Dwight Knowles and Oral Thompson were convicted after

a jury trial of conspiring to distribute, and possess with the intent to distribute, five kilograms or

more of cocaine on board an aircraft registered in the United States or owned by a United States

citizen, in violation of 21 U.S.C. §§ 959(b) (2012), 1 960 and 963. On May 1, 2017, defendant

Thompson filed a motion for a judgment of acquittal notwithstanding the verdict, or in the

alternative, a new trial, under Federal Rules of Criminal Procedure 29 and 33. Def. Thompson’s

Mot. for J. of Acquittal Notwithstanding Verdict, or in the Alternative, for New Trial [Dkt. # 235]

(“Def.’s Mot.”); Mem. in Supp. of Def.’s Mot. [Dkt. # 236] (“Def.’s Mem.”). Thompson argues

that the evidence at trial failed to prove an essential element of the charge: “that the aircrafts

allegedly employed during the life of the conspiracy were in fact ‘aircraft registered in the United

States or owned by a United States citizen.’” Def.’s Mem. at 3. Because there was ample evidence

to support the jury’s verdict, Thompson’s motion will be denied.




1       Congress amended section 959 on May 16, 2016, to add a new subsection “a,” to add a
new subsection “b,” and to “redesignat[e] subsections (b) and (c) as subsections (c) and (d)
respectively.” Transnational Drug Trafficking Act of 2015, Pub. L. No. 114-154, 130 Stat. 387
(2016). Because defendants were charged under the previous iteration of the statute, the Court
will refer to the statute as it existed in 2012.
                                         BACKGROUND

       On December 12, 2012, a grand jury returned an indictment charging defendants Oral

George Thompson, Dwight Knowles, Sergio Gonzalez-Bencomo, Dario Davis, and Trevor

Ferguson with conspiring to possess with the intent to distribute, and to distribute, five kilograms

or more of cocaine on board an aircraft registered in the United States or owned by a United States

citizen, in violation of 21 U.S.C. §§ 959(b), 960(b)(1)(B), and 963, and 18 U.S.C. § 2. Indictment

[Dkt. # 3]. Defendant Thompson was extradited from Colombia on March 28, 2014. Arrest

Warrant [Dkt. # 39].

       The conspiracy in this case involved the use of U.S.-registered aircraft to transport cocaine

from Colombia and Venezuela to Honduras. Thompson and Knowles were on the transportation

side of the transaction, and they dealt with representatives of the suppliers on the other side of the

transaction. At one point, Knowles was sent to sit with one of the suppliers’ representatives to

serve as a human “guarantee” that the plane would arrive, and in connection with the May 2012

transaction at the center of the trial, he recruited his nephew, Dario Davis, who held a pilot’s

license, to join the conspiracy and fly the plane. The government’s evidence focused on a

particular plane, a Beechcraft 1900 with the tail number N157PA. On May 28, 2012, co-

conspirators Dario Davis and Trevor Ferguson flew the N157PA plane from the Bahamas to Haiti.

Davis and Ferguson were supposed to pick up an additional pilot in Haiti, but the plane was

detained upon landing by Haitian authorities, and Davis and Ferguson were arrested.

       The case proceeded to trial against Thompson and Knowles on March 14, 2017. On March

31, 2017, the jury returned guilty verdicts against both defendants. Verdict Form [Dkt. # 229]

(Knowles); Verdict Form [Dkt. # 231] (Thompson). On May 1, 2017, defendant Thompson filed

a motion for a new trial, or in the alternative, for a judgment of acquittal notwithstanding the



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verdict. Def.’s Mot.; Def.’s Mem. The government opposed the motion on May 19, 2017. Gov’t’s

Opp. to Def.’s Mot. [Dkt. # 240] (“Opp.”). Thompson filed a reply on July 7, 2017. Reply to

Gov’t’s Opp. [Dkt. # 256] (“Reply”). 2

                                   STANDARD OF REVIEW

I.     Rule 29 Motion for Judgment of Acquittal
       Federal Rule of Criminal Procedure 29(c) requires a court to grant a defendant’s motion

for a judgment of acquittal after a verdict has been rendered for any “offense for which the

evidence is insufficient to sustain a conviction.” In reviewing a post-verdict motion for judgment

of acquittal under Rule 29, a court “must view the evidence in the light most favorable to the

verdict.” United States v. Campbell, 702 F.2d 262, 264 (D.C. Cir. 1983). In evaluating the

sufficiency of the evidence, “[t]he reviewing court considers only the ‘legal’ question 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.’” Musacchio v.

United States, 136 S. Ct. 709, 715 (2016) (emphasis in original), quoting Jackson v. Virginia, 443

U.S. 307, 319 (1979); see also United States v. Shmuckler, 792 F.3d 158, 161–62 (D.C. Cir. 2015).

The standard for a Rule 29 motion is “very high,” and the evidence to support a conviction does

“not need to be overwhelming.” United States v. Pasha, 797 F.3d 1122, 1135 n.9 (D.C. Cir. 2015).

       The Rule 29 standard preserves the jury’s role “as weigher of the evidence” and “gives full

play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh

the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Jackson, 443

U.S. at 319. So the “evidence need not exclude every reasonable hypothesis of innocence or be


2       A motion for a new trial under Rule 33, and a motion for a judgment of acquittal under
Rule 29, must generally be filed within fourteen days after the verdict. Fed. R. Crim. P. 33(b)(2);
Fed. R. Crim. P. 29(c)(1). The Court granted defendants’ motion for additional time to file any
post-trial motions, Min. Order (Mar. 31, 2017), so Thompson’s motion is timely.
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wholly inconsistent with every conclusion except that of guilt” to suffice to sustain a guilty verdict.

United States v. Bostick, 791 F.3d 127, 137 (D.C. Cir. 2015), quoting United States v. Kwong-

Wah, 924 F.2d 298, 302 (D.C. Cir. 1991).

II.     Rule 33 Motion for a New Trial
       Federal Rule of Criminal Procedure 33 provides that “[u]pon the defendant’s motion, the

court may vacate any judgment and grant a new trial if the interest of justice so requires.” Fed. R.

Crim. P. 33(a). “Trial courts enjoy broad discretion in ruling on a motion for a new trial.” United

States v. Wheeler, 753 F.3d 200, 208 (D.C. Cir. 2014). While the Rules do “not define ‘interests

of justice,’” the D.C. Circuit has instructed that “granting a new trial motion is warranted only in

those limited circumstances where ‘a serious miscarriage of justice may have occurred.’” Id.,

quoting United States v. Rogers, 918 F.2d 207, 213 (D.C. Cir. 1990). “In considering a new trial

motion based on the weight of the evidence the district judge ‘weighs the evidence and evaluates

the witnesses’ credibility and decides whether a serious miscarriage of justice may have

occurred.’” United States v. Dale, 991 F.2d 819, 838 (D.C. Cir. 1993), quoting Rogers, 98 F.2d at

213.

                                            ANALYSIS

I.     Thompson’s Rule 29 motion will be denied because a rational trier of fact could
       conclude that there was an agreement to use a U.S. registered airplane, and that the
       airplane at issue was in fact registered in the United States.
       Thompson’s sole argument is that the government failed to introduce sufficient evidence

to prove beyond a reasonable doubt that “the aircrafts allegedly employed during the life of the

conspiracy were in fact ‘aircraft registered in the United States or owned by a United States

citizen.’” Def.’s Mem. at 3.

       The first problem with this argument is that defendants in this case were charged with

conspiracy to distribute, or possess with the intent to distribute, the cocaine on board an aircraft

                                                  4
owned by a United States citizen or registered in the United States. The critical element of the

offense of conspiracy is the agreement to violate the law; it is not necessary that the crime actually

be accomplished.

       “Conspiracy requires an agreement – and in particular an agreement to do an unlawful act

– between or among two or more separate persons.” Ziglar v. Abbasi, 137 S. Ct. 1843, 1867

(2017). So, to convict a defendant of a conspiracy offense, “the Government must prove beyond

a reasonable doubt that two or more people agreed to commit a crime covered by the specific

conspiracy statute (that a conspiracy existed) and that the defendant knowingly and willfully

participated in the agreement (that he was a member of the conspiracy).” Smith v. United States,

568 U.S. 106, 110 (2013). Because “the fundamental characteristic of a conspiracy is a joint

commitment to an ‘endeavor which, if completed, would satisfy all of the elements of [the

underlying substantive criminal offense,’” Ocasio v. United States, 136 S. Ct. 1423, 1429 (2016),

quoting Salinas v. United States, 522 U.S. 52, 65 (1997), it is not necessary that the object of the

conspiracy be achieved. While conspirators must “pursue the same criminal objective,” the law

does not require a conspirator to “agree to commit or facilitate each and every part of the

substantive offense.” Salinas, 522 U.S. at 63. “A defendant must merely reach an agreement

with the specific intent that the underlying crime be committed by some member of the

conspiracy.” Ocasio, 136 S. Ct. at 1429 (internal quotations and citation omitted). 3




3      For example, a person can be convicted of conspiring to distribute cocaine even if the
substance seized turns out to be a different narcotic. See United States v. Williams, 553 U.S. 285,
300 (2008), citing 2 W. LaFave, Substantive Criminal Law § 11.5(a)(2) (2d ed. 2003).

                                                  5
        Here, there was sufficient evidence introduced from which a rational trier of fact could

conclude that defendants Thompson and Knowles conspired to transport cocaine on an aircraft

registered in the United States. 4

        The evidence of the existence of an agreement was introduced through cooperating

witnesses including Matthew Ferguson, Jose Polonia Vergara, and Dario Davis, each of whom

testified pursuant to plea agreements. With respect to Thompson in particular, Ferguson testified

that Thompson asked him to receive 150 kilograms of cocaine on his behalf in the Bahamas in

May 2011, which represented a portion of a larger shipment of cocaine that was to be transported

from Maracaibo, Venezuela on board a Hawker aircraft. The Hawker shipment was ultimately

unsuccessful because the pilots were detained in Venezuela.

        Jose Polonia Vergara testified that after the pilots were detained, he worked with

Thompson to get the plane released. Polonia Vergara confirmed that the aircraft detained in

Maracaibo was registered in the United States because the tail number began with the letter “N,” 5

and he confirmed that the plan was to use that airplane to traffic cocaine. In a May 8, 2011 call

with Polonia Vergara, Thompson asserted control over the Hawker aircraft: “the only person who




4       Because the post-trial motions can be decided based only on a subset of the evidence in
this case, the Court will not summarize the voluminous trial record. The Court will cite to the
docketed transcripts to the extent that they have been filed on the docket, but many of the
transcripts have not yet been docketed, and so, for that testimony, the Court relies on the draft
transcripts and its own recollection and notes.

5       Steven J. Tochterman of the Federal Aviation Administration testified about the
registration of airplanes in the United States. He stated that every aircraft must have a tail number,
and that every tail number of an aircraft registered in the United States must begin with the letter
“N.” Tochterman Tr. (Mar. 22, 2017, AM session) [Dkt. # 240-3] at 37:19–22; see also 14 C.F.R.
§ 45.23(a) (“Each operator of an aircraft must display . . . aircraft marks consisting of the Roman
capital letter ‘N’ (denoting United States registration) followed by the registration number of the
aircraft.”).


                                                  6
gives the authorization for that car 6 to leave is me.” GX 1.75; 7 see also GX 1.24 (Thompson tells

another drug trafficker, “I brought a Hawker to Venezuela. I’m the only guy who parked one in

. . . Maracaibo”). 8

        There was further evidence of an effort involving Thompson and Knowles from

approximately May 2011 to December 2012 to use a U.S.-registered airplane to traffic cocaine.

        Knowles was tasked with working with his nephew, Dario Davis, to secure an airplane.

See GX 1.44 (phone call in which Thompson rejects Knowles’s request that Thompson call Davis,

because “it’s your nephew . . . you deal with your nephew”). 9 In approximately May 2010,

Knowles asked Davis to assist him in locating an aircraft with a capacity to hold ten passengers

and a range of 1500 nautical miles. As Davis commenced his search, he and Knowles exchanged

a number of emails and telephone calls about various aircraft, the majority of which, Davis

testified, were registered in the United States. On May 16, 2011, Knowles called Davis and told

him to search for either a King Air 200 or 300. Davis testified that he received an email from10



6      Each of the co-conspirators testified that the use of the word “car” in the recorded
conversations was a code for the word “airplane.”

7       “GX” refers to the government’s trial exhibits.

8        Polonia Vergara also testified about a plane that was being held by law enforcement
authorities in Punto Fijo, Venezuela. Polonia Vergara explained that Thompson asked for Polonia
Vergara’s assistance to retrieving the plane, and that “Russ,” an associate of Thompson’s, provided
the tail number of the airplane, which was registered in the United States, to Umberto, an associate
of Polonia Vergara’s.

9       Thompson also referred to “the nephew,” Davis, in a call with Omero. GX 1.47.
Thompson explained to Omero that Davis was working directly with Knowles – who Omero
referred to on a first name basis – “Dwight.” On that same call, Omero referred to Davis by name,
and explained that he will coordinate payment with Knowles and “Dario.”
10      While defendant Knowles denied using that email address, on a motion for a judgment of
acquittal, the Court is required to view the evidence in the light most favorable to the prosecution.
Musacchio, 136 S. Ct. at 715, quoting Jackson, 443 U.S. at 319.


                                                 7
Knowles dated May 18, 2011 which contained three tail numbers, including N157PA; Knowles

stated in the email “you can use any of these.” GX 2.05.

       On May 26, 2011, Davis emailed Knowles pictures of a number of airplanes, including

airplanes registered in the United States. GX 2.06. And in a phone call with Knowles on October

7, 2011, in response to Knowles’s request for “the tail number for the 19-year-old” that co-

conspirator Trevor Ferguson “was supposed to get,” Davis recited, “[o]ne five seven . . . Poppa

. . . Alpha,” which Davis testified was a reference to N157PA. 11 GX 1.11. Davis testified that the

“19-year-old” was code for a Beechcraft 1900, and that N157PA was a Beechcraft 1900.

       Further, in a call between Thompson and an individual on the suppliers’ side, Omero, dated

April 23, 2012, Thompson described Davis’s efforts to secure an airplane. GX 1.47. Thompson

explained to Omero that Davis was working directly with Knowles. Id. Omero then stated that

he would coordinate payment with Knowles and “Dario.” Id.

       In the end, the co-conspirators operating at defendants’ behest boarded a U.S.-registered

plane with plans to fly it to Haiti, where they would be joined by a pilot working for the drug

suppliers and then fly the plane to a location selected by the suppliers, with the goal of loading the

plane with cocaine in Venezuela and flying it to Honduras. But N157PA and its crew were

detained in Haiti. At that point, on May 28, 2012, Knowles acknowledged his connection to the

plane when he complained to Thompson: “You know how hard I try to . . . get a car with them?

And I finally get the car, they go f*** it right up.” GX 1.63.




11       Davis explained that, in talking with Knowles, there was often no need to specify the “N”
in the tail number because it was assumed that the plane would be registered in the United States.
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       All of this evidence is sufficient to enable a rational trier of fact to find that an agreement

existed between the defendants and others to distribute, or possess with the intent to distribute,

five kilograms or more of cocaine on board an airplane registered in the United States.

       It is true that the parties jointly proposed that the jury be instructed as follows:

               I instruct you that the defendants need not know that the narcotics would be
               or were possessed on board an aircraft owned by a United States citizen or
               registered in the United States. If the Government proves that the aircraft
               was owned by a United States citizen or registered in the United States, that
               itself is enough.

Jury Instructions [Dkt. # 234] at 39. This may have exceeded what the government was required

to prove in this case, but in any event, the evidence supported a finding by the jury that at least one

airplane used by the conspiracy in this case was in fact registered in the United States.

       Davis testified that when he and Ferguson arrived at an airport in Nassau, Bahamas on May

24, 2012 to pilot an aircraft from the Bahamas to Haiti, a co-conspirator pointed out a plane with

the tail number N157PA. Davis and Ferguson were to fly the plane to Haiti, pick up an additional

pilot, fly to Apures, Venezuela to pick up the cocaine, and deliver the cocaine to Honduras. Davis

testified that the plane that he and Ferguson ultimately flew from the Bahamas to Haiti was

N157PA, and it was the same model that he had described to his uncle – a Beechcraft 1900.

       Agent Tochterman explained that to register an aircraft in the United States, the owner of

the aircraft or the owner’s designee must submit a bill of sale and an Aircraft Registration

Application form to the FAA, and must pay the $5 fee. Tochterman Tr. at 36:22–37:9. Operators

of airplanes must also possess a certificate of airworthiness, which Agent Tochterman likened to

an inspection certification for a motor vehicle; it certifies that an airplane registered in the United

States has, as of a particular date, been deemed airworthy. Id. at 37:23–38:9. Through Agent

Tochterman’s testimony, the government introduced the registration forms and airworthiness



                                                  9
certifications for a number of U.S.-registered airplanes. In particular, FAA records established

that an aircraft with the tail number N157PA was registered in the United States on January 30,

2012, and its registration expired on January 31, 2015. See Tochterman Tr. at 49:23–50:8; GX

5.70 at 23. The registration paperwork also established that the N157PA tail number was

registered to a Beechcraft 1900C aircraft. Tochterman Tr. at 50:13–16.

       Agent Tochterman also testified that, in addition to reviewing the paper records of the

airplane with tail number N157PA, he also reviewed photographs of that airplane. Tochterman

Tr. at 68:3–8; GX 4.01a. He testified that the photographs confirmed that an aircraft with the tail

number N157PA appeared to be a Beechcraft 1900. Tochterman Tr. at 68:3–12; GX 4.01a.

Tochterman also testified that he had seen the N157PA aircraft in person on ten or twelve occasions

in 2012 and 2013, and that the logo and color scheme matched the information contained in FAA’s

records and in the photographs. Id. at 98:12–18, 102:7–21.

       On cross examination, Tochterman testified that most airplanes have a data plate on their

exterior, and the serial number of the aircraft would appear on the data plate. Tochterman Tr. at

89:4–18. In response to a hypothetical posed by the defense, Tochterman conceded that an owner

of an aircraft could paint a fake tail number onto an aircraft. Id. at 90:3–8.

       Thompson seizes on the cross examination of Tochterman and argues that “[t]aking Mr.

Tochterman’s testimony as a whole it is difficult to determine whether the aircrafts in question

were simply designed to appear as United States registered aircraft or not.” Def.’s Mem. at 4. But

the jury was permitted to assess the credibility of the witnesses and to weigh the evidence. See

Jackson, 443 U.S. at 319. The jury was presented with Tochterman’s testimony, the exhibits from

the FAA, and the photographs of N157PA. It was also presented with Davis’s testimony about his

communications with other members of the conspiracy about particular U.S.-registered airplanes.



                                                 10
       So while Thompson attempted to sew doubt in the jurors’ minds about whether the plane

that Tochterman described was actually N157PA, a rational trier of fact could have found that the

FAA records were consistent with the photographs, Tochterman’s personal observations of

N157PA, and Davis’s testimony. And the fact that there could have been additional evidence in

the form of the data plate to confirm the pedigree of the N157PA plane does not mean that the

evidence adduced was insufficient. The possibility that someone could repaint the tail number on

a plane goes to the weight of the evidence, not the sufficiency, and the suggestion is purely

speculative in this case in the absence of any evidence that the plane appeared to have been painted

over, and given the evidence that the registration documents not only reflect the tail number of the

plane, but also the make and model of the N157PA aircraft. Therefore, the Court will deny the

Rule 29 motion.

II.     Thompson’s Rule 33 motion will be denied for similar reasons.
       For many of the same reasons, Thompson’s Rule 33 motion will be denied. The Court has

considered all of the evidence introduced at trial about the use of U.S.-registered aircraft to traffic

narcotics, including the testimony of co-conspirators and government agents, and it has evaluated

the witnesses’ credibility in light of their demeanor at trial and the internal consistencies in the

testimony of multiple witnesses. The Court is persuaded that the weight of the evidence, including,

in particular, defendants’ own statements on the telephone, strongly favors conviction and no

miscarriage of justice occurred.

       Although each of the cooperating witnesses readily admitted their involvement in

international drug-smuggling conspiracies, and while each cooperator testified pursuant to a plea

agreement, their testimony was plausible, convincing, and consistent. Therefore, in an exercise of

its discretion, the Court will deny the motion for a new trial.



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                                          CONCLUSION

       For the foregoing reasons, defendant’s motion for a judgment of acquittal notwithstanding

the verdict, or in the alternative, for a new trial, will be denied. A separate order will issue.




                                               AMY BERMAN JACKSON
                                               United States District Judge

DATE: August 1, 2017




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