United States v. Pereira

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this opinion should not be published and is not precedent except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