UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________
No. 96-20410
_______________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
IRIS PEREIRA, also known as IRIS GILL,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
(CR-H-95-2272)
_________________________________________________________________
October 10, 1997
Before KING, JONES, Circuit Judges, and WERLEIN, District Judge.*
PER CURIAM:**
Appellant Iris Pereira appeals her conviction after a
jury trial and sentence for conspiracy to possess with intent to
*
District Judge of the Southern District of Texas, sitting by
designation.
**
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
distribute heroin and cocaine. Finding no reversible error below,
we affirm.
FACTUAL BACKGROUND
The evidence at trial established that on January 20,
1995, while assigned to the Drug Enforcement Task Force, New York
City Police Detective George Sabando was introduced to Pereira by
one of his informants, Augustine Silvestri, as being an individual
with very good knowledge regarding the trafficking of cocaine and
heroin in the New York City area. Sabando testified that, at that
time, he considered Pereira to be a source of information seeking
to become a confidential informant.1 At that meeting, Sabando took
Pereira’s photograph, fingerprints, and personal history and filled
out a cooperating individual agreement. Sabando told her that,
pursuant to this agreement, she was not allowed to negotiate any
type of deal or meet with any individual to discuss a future deal
without letting Sabando know first. She could not travel out of
the state to do a deal; she could not receive a sample of a
controlled substance without giving them advance notice; and if she
frequented a drug-prone area without telling Sabando in advance and
was arrested, she would not be protected by their agreement.
1
The evidence established that a “source of information” is an
individual who, acting in good faith, voluntarily gives the police
information and that a “confidential informant” is an individual
who actually works for the police. A source of information can
become a confidential informant by giving credible information to
law enforcement.
2
Sabando explained to Pereira that, if she notified him after the
drug activity commenced, her involvement would be considered
criminal activity and it would be reported to the DEA. Pereira
executed the cooperating individual agreement. At this meeting,
Pereira provided only general information regarding Colombian
Nationals operating a drug-trafficking network in the
Queens/Brooklyn area.
On February 9, 1995, Sabando had a second meeting with
Pereira to introduce her to his supervisor. At this meeting,
Pereira again provided only general information regarding the
importation of heroin from Panama into New York City. The meeting
lasted approximately 30 minutes, and the parties made no
arrangements regarding future meetings.
Sabando again met with Pereira on February 24, 1995, to
refingerprint her because the initial fingerprints were done on
state, rather than federal, print cards. Pereira was again
instructed to contact Sabando when she acquired information in
order for her to be established as a reliable source.
Sabando’s next contact with Pereira was a telephone call
in May to inform her of his new pager number because he had lost
his old pager. Then, in July, Pereira phoned Sabando, apologized
for not maintaining contact with him, and explained that she had
been ill.
3
On August 12, 1995, Pereira paged Sabando from Florida
and indicated on the page that it was an important call by using
the digits “911.” Sabando returned the call and informed her that
he was not happy that she had gone to Florida without first
notifying him. Pereira informed him that unknown persons had
entered her mother’s home, and she asked him to call local law
enforcement or the DEA to see what had happened. She told him that
she had financial records for Sabando and hoped they had not been
taken. Sabando refused her request and reminded her that she knew
the conditions of their agreement and that she had not advised him
before going to Florida. Sabando advised her to call local law
enforcement officials and to let him know what happened. Pereira
paged Sabando for a second time later that day, but he did not
return her call.
On August 14, 1995, Sabando was paged from Pereira’s
attorney’s office in Miami. Pereira’s attorney stated that Pereira
was present in his office and asked Sabando if the case he was
working on with Pereira overlapped with her business in Miami.
Pereira’s attorney suggested that Sabando speak with Agent Ozolof
in Miami. During the telephone call with Ozolof, Sabando learned
for the first time that a wiretap had been placed on Pereira’s
phone in New York, and as a result, the Miami authorities had
intercepted conversations indicating that Pereira was involved in
drug trafficking activity. Ozolof suggested that Sabando contact
4
New York City Police Officer Paul Massimillo, the individual who
obtained the court-authorized wiretap on Pereira’s phone. Sabando
contacted Massimillo and learned, also for the first time, that
during the previous six months, Pereira had been busy arranging for
couriers to smuggle controlled substances into the country from
Venezuela.
On August 15, 1995, Pereira again paged Sabando from
Florida. Sabando informed Pereira that the DEA in Miami was
looking for her and that she must come to New York. Pereira
responded that she had business to take care of in Houston, Texas.
Sabando instructed Pereira not to go to Houston to conduct business
and that her priority was to come to New York. Pereira traveled to
Houston in spite of her discussion with Sabando.
On August 16, 1995, Pereira paged Sabando from a Motel 6
in Houston and told him that her attorney had informed her that she
was wanted in Miami and that if she did not return to Miami she
would be indicted. Sabando confirmed Pereira’s fears that
officials in Miami wanted to indict her, and he told her to return
to New York so that he could finalize her paperwork.
Pereira contacted Sabando again on August 17, 1995, and
asked him if he would be able to help her with the DEA if she did
“a deal” in Texas. Sabando told Pereira that her priority was to
return to New York, he did not want her in Houston, he did not
authorize her to go to Houston, and she had called him after the
5
fact in contravention of their agreement. Pereira refused to
provide Sabando with any information regarding the deal in Texas.
The conversation ended abruptly when someone knocked on the motel
room door. Sabando was informed later that day that Pereira had
been arrested.
United States Customs Service Special Agent Dennis Lorton
testified that on August 1, 1995, he was notified that two
confidential informants were on board a freighter in possession of
heroin and cocaine. Lorton monitored the freighter which arrived
in Houston on August 13, 1995. He, along with DEA agents and
Houston Police Department Officers, met the informants on board the
freighter and took possession of two rectangular packages of
heroin, six packages of cocaine, and scraps of paper and business
cards with the names and telephone numbers of the contacts to whom
the informants were supposed to deliver the drugs. Later that
evening, the agents instructed the informants to contact “Rudolfo,”
one of the individuals listed on the scraps of paper retrieved from
the informants. Lorton testified that Rudolfo advised the
informant to call an individual named “Martha,” who was staying at
a local Motel 6. Martha was later identified as Pereira. The
agents established surveillance on the room and then contacted
“Martha.”
The informant had three telephone conversations with
“Martha,” all of which were recorded. Summarized, the telephone
6
transcripts reflect that the informant asked “Martha” whether she
had the money. “Martha” stated that she had to call Rudolfo and
instructed the informant to call her back. When the informant
returned her call, “Martha” stated that she was unable to reach
Rudolfo, but the informant could come to the hotel and talk about
the transaction. “Martha” informed the informant that she did not
have the money with her at the room, but that the money could be
wired to him at the local Western Union. “Martha” and the
informant ultimately agreed to meet to conduct the transaction in
person.
The next day, Rudolfo arrived in Houston and went to
Pereira’s hotel room. The informant contacted Rudolfo at the
hotel, and they agreed that the informant would bring the drugs to
the hotel to make the exchange. The informants were taken to the
hotel in a taxi cab driven by an undercover Houston Police Officer.
When the informants arrived at the hotel, Pereira paid the cab fare
and escorted the informants inside the hotel room. Although the
informants were wearing body wires, the atmosphere noise in the
hotel room was very loud and the surveillance team was unable to
hear any dialog. The undercover officer driving the cab returned
to the hotel room under the pretense of returning a bag which one
of the informants left in the cab. Pereira opened the door and the
undercover officer observed the drugs and the money inside the
7
room. The officer gave a signal, and the surveillance team
effected the arrest.
The officers recovered $15,000 and the eight packages of
drugs the informants brought to the scene. The officers also
recovered two digital pagers, three or four temporary phone cards,
a piece of paper with the name of the dock where the freighter
arrived, airline tickets, and a piece of paper containing George
Sabando’s office and pager numbers from Pereira.
Ralph Saldivar, a latent print examiner with the Houston
Police Department, testified that an analysis of one of the
packages of drugs confiscated at the hotel revealed two of
Pereira’s fingerprints. Lorton testified that upon arrest, Pereira
stated that she worked for Sabando at the DEA in New York.
Pereira was charged in a two-count indictment with
conspiracy to possess with intent to distribute heroin and cocaine,
in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), (b)(1)(B), and
846, and with aiding and abetting the possession with intent to
distribute heroin and cocaine, in violation of 18 U.S.C. §§ 2, 21.
She was convicted after a jury trial of conspiracy to possess with
intent to distribute heroin and cocaine; she was acquitted of the
aiding and abetting count. The court sentenced Pereira to 188
months, five years supervised release, a $10,000 fine, and a $50
special assessment.
8
Pereira appeals complaining that (1) the district court
erred in admitting evidence of other crimes, (2) the evidence was
insufficient to support her conviction, (3) the jury’s verdict
convicting her of conspiracy was legally inconsistent with its
verdict of acquittal on the aiding and abetting count, and (4) the
district court erred in calculating her base offense level.
DISCUSSION
A. Evidence of Other Crimes
Pereira first argues that the district court abused its
discretion in admitting under FED. R. EVID. 404(b) evidence of two
uncharged incidents implicating her in drug trafficking activity.
She argues that the Government failed to demonstrate the relevance
of the prior offenses to the instant offense and that the proffered
testimony was unsubstantiated and not credible. She also argues
that the district court failed to balance the probative value of
the evidence against its prejudicial effect as required by Rule
403.
This court reviews the district court's evidentiary
rulings and determinations of relevance for abuse of discretion.
See United States v. Palmer, 37 F.3d 1080, 1084 (5th Cir. 1994),
cert denied, 514 U.S. 1087 (1995). FED. R. EVID. 404(b) precludes
the admission of evidence "of other crimes, wrongs, or acts . . .
to prove the character of a person in order to show action in
9
conformity therewith. It may, however, be admissible for other
purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or
accident."
We have previously held that in order to be admissible
under Rule 404(b), the extrinsic-offense evidence must be relevant
to an issue other than the defendant's character, must possess
probative value which is not substantially outweighed by undue
prejudice, and must satisfy the other requirements of FED. R. EVID.
403.2 See United States v. Bentley-Smith, 2 F.3d 1368, 1377 (5th
Cir. 1993). To determine whether this extrinsic evidence was
relevant to an issue other than Pereira’s character, the court
"must address the threshold question of whether the government
offered sufficient proof demonstrating that the defendant committed
the alleged extrinsic offense." United States v. Ridlehuber, 11
F.3d 516, 522 (5th Cir. 1993).
Prior to trial, Pereira gave notice of her intent to
raise the defense of public authority. “The public authority
defense is available when the defendant is engaged by a government
official to participate or assist in covert activity.” United
2
FED. R. EVID. 403 provides in relevant part: "Although
relevant, evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury . . .."
10
States v. Spires, 79 F.3d 464, 466 n.2 (5th Cir. 1996). Pereira
asserted that her exercise of public authority occurred between
January 1, 1995 and September 1, 1995. After being notified of
Pereira’s intent to use this defense, the Government informed
Pereira of its intent to introduce evidence of two incidents
implicating Pereira in drug-trafficking during the relevant period.
The court allowed the Government to do so.
Regarding the first incident, DEA Special Agent Osvaldo
Amaro testified at Pereira’s trial that on May 18, 1995, while
working in an undercover capacity, he delivered 4.5 kilograms of
cocaine to Pereira in a hotel room in Miami. Amaro had been
instructed to arrive at the hotel with 12 shaving cans stuffed with
cocaine and deliver those cans to a female -- later identified as
Pereira -- in exchange for $10,000.
Regarding the second incident, Denise Munoz testified
that she was approached by Pereira, who at the time identified
herself as “Martha,” in July of 1995 while Munoz was working at a
beauty salon in New Jersey. After their initial meeting, Pereira
and Munoz had several telephone conversations in which they
discussed transporting drugs into the country from Venezuela.
Pereira offered to pay Munoz $8,000 if she agreed to the
transaction. Munoz did in fact travel to Venezuela, with an
airline ticket purchased by Pereira. She picked up a suitcase from
another person in Venezuela as pre-arranged by Pereira and returned
11
to Miami. However, immediately upon exiting the plane, Munoz was
stopped and detained by a DEA agent. Munoz agreed to cooperate
with the DEA and provided the DEA with Pereira’s telephone number
and her contact person in New York.
Massimillo testified that, while investigating a
suspected drug trafficker Jorge Emilio Torres, he discovered that
Torres was frequently in contact with Pereira. On July 21, 1995,
Massimillo obtained the court-authorized wiretap on Pereira’s home
telephone in New York which intercepted a call from Pereira to
Munoz in which Pereira instructed Munoz to travel to Venezuela and
pick up the heroin.
Sabando testified that prior to Pereira’s arrest on
August 17, 1995, and in violation of any agreement he may have had
with her, he had no knowledge of Pereira’s involvement with 4.5
kilograms of cocaine on May 18, 1995 and that, prior to August 14,
1995, he had no knowledge of Pereira’s involvement in recruiting
Munoz to import heroin from Venezuela.
The evidence of Pereira’s prior acts during the period
in which she maintains she was acting under actual or believed
public authority was probative evidence of Pereira’s state of mind
when she conspired to distribute and possess with the intent to
distribute cocaine and is relevant to rebutting her public
authority defense. The testimony of Agent Amaro that Pereira
orchestrated the delivery of cocaine in Miami and the testimony
12
from Munoz and Massimillo that Pereira orchestrated the delivery of
heroin from Venezuela to Miami were sufficient proof of the
extrinsic acts and were relevant to Pereira’s intent to distribute
cocaine and heroin in the Houston offense. The prejudice caused by
the admission of this testimony does not substantially outweigh its
probative value. The district court did not abuse its discretion
in admitting this evidence.
B. Sufficiency of the Evidence
Pereira next challenges the sufficiency of the evidence
to support her conviction. We review a challenge to the
sufficiency of the evidence to determine whether, when viewing the
evidence in the light most favorable to the jury’s verdict, a
rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt. See United States v. Sotelo,
97 F.3d 782, 789 (5th Cir. 1996), cert. denied, ___ U.S. ___, 117
S.Ct. 1002 (1997). To prove a conspiracy under 21 U.S.C. § 846,
the Government is required to prove (1) an agreement between two or
more persons to violate the narcotics laws; (2) a defendant’s
knowledge of the agreement; and (3) her voluntary participation in
that agreement. See United States v. Misher, 99 F.3d 664, 667 (5th
Cir. 1996), petition for cert. filed, 65 U.S.L.W. (1997). “[A]
jury may infer each element of a conspiracy from circumstantial
evidence: ‘an agreement to violate narcotic laws may be inferred
13
from concert of action.’” Id. at 668 (quoting United States v.
Cardenas, 9 F.3d 1139, 1157 (5th Cir. 1993)).
The evidence presented at trial established that Pereira
was actively involved in orchestrating the delivery of the drugs
between Rudolfo Pierre and the informants. Pereira’s defense that
she was acting under an actual or believed public authority was
refuted by Sabando’s testimony that he was unaware of Pereira’s
involvement in the two drug-trafficking offenses in Miami and that
he instructed her not to continue the drug deal in Houston. In
viewing the evidence in the light most favorable to the jury’s
verdict, the evidence is sufficient to prove beyond a reasonable
doubt that Pereira knowingly conspired to possess cocaine and
heroin with the intent to distribute it.
C. Inconsistency of the Verdict
Pereira next contends that her acquittal for aiding an
abetting the possession with intent to distribute heroin and
cocaine requires the reversal of her conviction for conspiracy to
possess with intent to distribute heroin and cocaine because the
jury rendered a legally inconsistent verdict.
However, “it is well established that juries are entitled
to render inconsistent verdicts.” United States v. Parks, 68 F.3d
860, 865 (5th Cir. 1995), cert. denied, 116 S. Ct. 825 (1996). In
a multiple-count indictment, "even if the counts were overlapping,
14
the law does not require consistency of verdict between the
separate counts. Inconsistent verdicts may simply be a reflection
of the jury's leniency." United States v. Peña, 949 F.2d 751, 755
(5th Cir. 1991) (citations omitted). We affirm on this issue.
D. Sentencing
1. Appropriate Quantity of Drugs Attributable to Pereira
Pereira contends that the district court erred during
sentencing in calculating the amount of cocaine and heroin
attributable to her. She argues that the district court should
have considered only the 1,290 grams of heroin and the 2,477 grams
of cocaine seized as a result of her arrest in Houston in
determining her base offense level and that the court impermissibly
included the amount of drugs seized in the two prior Miami
offenses. She argues that evidence regarding the amount of drugs
seized in the two prior offenses was based on information obtained
from unreliable cooperating government witnesses and that it was
not independently corroborated, did not bear indicia of
reliability, and that the two prior offenses were outside the scope
of her relevant conduct.
We review a sentencing court’s application of the
sentencing guidelines de novo. See United States v. Edwards, 65
F.3d 430, 432 (5th Cir. 1995). We review the district court's
calculation of the quantity of drugs involved for sentencing
15
purposes for clear error. See United States v. Mergerson, 4 F.3d
337, 345 (5th Cir. 1993), cert. denied, 510 U.S. 1198 (1994).
"[A] defendant's base offense level for the offense of
conviction must be determined on the basis of all `relevant
conduct' as defined in U.S.S.G. § 1B1.3." United States v. Vital,
68 F.3d 114, 117 (5th Cir. 1995); U.S.S.G. § 2D1.1 comment. n.12.
Relevant conduct may include quantities of drugs not specified in
the count of conviction if they were part of the same course of
conduct or part of a common scheme or plan as the count of
conviction. See United States v. Bryant, 991 F.2d 171, 177 (5th
Cir. 1993); United States v. Edwards, 911 F.2d 1031, 1033 (5th Cir.
1990) (noting that the sentencing court may consider a broad range
of conduct and is not limited to conduct from the offense of
conviction); U.S.S.G. § 1B1.3, comment. (backg'd) ("Conduct that is
not formally charged or is not an element of the offense of
conviction may enter into the determination of the applicable
guideline sentencing range.").
Two or more offenses “constitute part of a common scheme
or plan” if they are “substantially connected to each other by at
least one common factor, such as common victims, common
accomplices, common purpose, or similar modus operandi.” U.S.S.G.
§ 1B1.3 comment. (n.9(A)). Two or more offenses involve the “same
course of conduct . . . if they are sufficiently connected or
16
related to each other as to warrant the conclusion that they are
part of a single episode, spree, or ongoing series of offenses.”
U.S.S.G. § 1B1.3 comment. (n.9(B)) (emphasis added).
“In determining drug quantities, the district court may
rely on any evidence which has a ‘sufficient indicia of
reliability.’” United States v. Sherrod, 964 F.2d 1501, 1508 (5th
Cir.), cert. denied, 506 U.S. 1041 (1992). The PSR is considered
reliable evidence for sentencing purposes. See Vital, 68 F.3d at
120. A district court may adopt facts contained in the PSR without
further inquiry if the facts have an adequate evidentiary basis and
the defendant does not present rebuttal evidence. See United
States v. Puig-Infante, 19 F.3d 929, 943 (5th Cir.), cert. denied,
613 U.S. 864 (1994).
In addition to the fact that the Miami offenses and the
instant offense had a common purpose, there is significant temporal
proximity among them. The Miami offenses occurred within four
months of the offense for which Pereira was convicted. See United
States v. Bethley, 973 F.2d 396, 401 (5th Cir. 1992) (relevant
conduct taking place within six months of the count of conviction
met the temporal proximity test), cert. denied, 507 U.S. 935
(1993); see also United States v. Moore, 927 F.2d 825, 827-28 (5th
Cir.) (activities occurring in January and June of the same year
considered part of "common scheme or plan"), cert. denied, 502 U.S.
17
871 (1991). Pereira did not present any evidence to refute the
probation officer’s calculation of the relevant quantity of drugs
involved in those transactions for sentencing purposes. The
district court did not commit clear error by including quantities
of drugs from the two Miami transactions in its calculation of
Pereira’s base offense level.
2. Supervisory Role Pursuant to § 3B1.1(c)
Pereira also argues that the district court erred in
awarding a two-level enhancement for her role in the offense under
§ 3B1.1(c). She argues that the enhancement was based on
information obtained from an unreliable cooperating government
witness, that it was not independently corroborated, and that it
did not bear an indicia of reliability.
We review a district court’s determination that a
defendant held a supervisory role in an offense under U.S.S.G. §
3B1.1 for clear error. See United States v. Musquiz, 45 F.3d 927,
932-33 (5th Cir.), cert. denied, ___ U.S. ___, 116 S.Ct. 54 (1995).
Factual findings are not clearly erroneous if they are plausible in
light of the record read as a whole. See United States v. Ayala,
47 F.3d 688, 689-90 (5th Cir. 1995).
The guidelines provide that a defendant’s base offense
level is to be increased by two levels if the defendant was “an
organizer, leader, manager, or supervisor in any criminal
18
activity.” U.S.S.G. § 3B1.1(c). Proof that the defendant
supervised only one other culpable participant is sufficient to
make the defendant eligible for this enhancement. See United
States v. Washington, 44 F.3d 1271, 1281 (5th Cir.), cert. denied,
514 U.S. 1132 (1995). Such an increase is based on the defendant’s
role and conduct encompassed within the scope of the offense of
conviction and any relevant conduct. See United States v.
Eastland, 989 F.2d 760, 769 & n.18 (5th Cir.), cert. denied, 510
U.S. 890 (1993). The enhancement is proper only if the defendant
organized, led, managed, or supervised at least one other person
who was criminally culpable in, though not necessarily convicted
for, the offense. See United States v. Valencia, 44 F.3d 269, 272
(5th Cir. 1995); § 3B1.1, comment., (n.2). If the defendant
objects to the increase in his offense level, the Government must
establish facts to support the adjustment by a preponderance of the
relevant and sufficiently reliable evidence. See United States v.
Elwood, 999 F.2d 814, 817 (5th Cir. 1993).
Pereira filed written objections to the PSR, contesting
the facts supporting the recommendation for a § 3B1.1(c)) increase.
The district court awarded the two-level increase under § 3B1.1(c),
finding that the evidence at trial showed that Pereira recruited
Munoz to transport drugs from Venezuela to Miami. The intercepted
telephone conversations confirmed that Pereira instructed Munoz to
19
travel to Venezuela, pick up the heroin, and travel back to Miami
with an airline ticket purchased by Pereira. The district court
did not clearly err in determining, based on the record read as a
whole, that Pereira held a supervisory role sufficient to warrant
a two-level increase pursuant to § 3B1.1.
CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of
conviction and sentence of the district court.
20