United States of America v. Pedro Miguel Pereira

In the
United States Court of Appeals
For the Seventh Circuit
No. 14-1301
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
PEDRO MIGUEL PEREIRA,
Defendant-Appellant.
Appeal from the United States District Court for the
Central District of Illinois.
No. 4:11-cr-40118-JES-JAG-1 — James E. Shadid, Chief Judge.
ARGUED FEBRUARY 13, 2015 — DECIDED APRIL 17, 2015
Before WOOD, Chief Judge, and BAUER and RIPPLE, Circuit
Judges.
BAUER, Circuit Judge. Defendant-appellant, Pedro Miguel
Pereira (“Pereira”), was convicted by a jury, after a full trial, of
conspiracy with intent to distribute at least 100 kilograms of
marijuana in violation of 21 U.S.C. § 846. On appeal, he argues
that there was insufficient evidence to support his conviction.
Specifically, Pereira contends that the government proved only
the existence of a buyer-seller relationship, which was insuffi-

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2 No. 14-1301
cient to prove involvement in a drug-distribution conspiracy.
We find that the record contains sufficient evidence from
which a rational jury could infer that Pereira conspired to
distribute marijuana and we affirm.
I. BACKGROUND
On December 8, 2011, an Illinois state trooper pulled over
a vehicle driven by David Helsene (“Helsene”). Although it
was December, Helsene was transporting two kayaks on top
of his vehicle, which raised the trooper’s suspicion. After a K-9
unit detected the presence of narcotics near the top of the
vehicle, the trooper searched the kayaks and discovered
approximately 145 pounds of marijuana hidden inside.
Helsene was arrested and agreed to cooperate with law
enforcement by participating in a controlled delivery of the
marijuana to an individual in Philadelphia. Additionally,
Helsene told authorities that he had received instructions from
a man named Kenneth Clarke (“Clarke”), the source of the
marijuana, to travel to New Jersey to collect $50,000 from
Pereira. Helsene called Pereira and instructed him to “go
where [he] went the last time.” With law enforcement agents
close behind, Helsene met with Pereira, who handed him a
toolbox containing $41,000, and the agents arrested Pereira.
After a months-long investigation, Pereira, Clarke, Helsene
and Pereira’s brother, Jimmy, were charged with conspiring
with each other and with persons known and unknown, to
knowingly and intentionally distribute and possess with intent
to distribute at least 100 kilograms of marijuana in violation of
21 U.S.C. § 841(a)(1) and (b)(1)(B), and 21 U.S.C. § 846.

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No. 14-1301 3
At trial, Helsene testified that Pereira bought marijuana
from Clarke, a supplier who worked out of California. Since
becoming a courier for Clarke in April 2011, Helsene had de-
livered marijuana to Pereira on at least six occasions before
they were both arrested in December 2011. On each of these
occasions, Helsene transported large amounts of marijuana,
which were stored in kayaks and secured to the top of his
vehicle, from California to Pereira’s residence in New Jersey.
On a least four of these trips, the weight of those loads ranged
from 60–100 pounds. Once Helsene arrived at Pereira’s
residence, he unloaded packages of marijuana from the kayaks,
which Pereira then stored in his garage. Clarke was present
during five of the deliveries, having met Helsene in New Jersey
and accompanied him to Pereira’s residence in order to “make
sure everything was on the up and up.” According to Helsene,
Clarke and Pereira would often discuss price terms and the
quality of the marijuana during those meetings. However,
Pereira never provided payment for a new load to Helsene or
Clarke at the time of delivery; rather, if any money was
exchanged at all, it was for the prior delivery. Only once did
Helsene stay in New Jersey for a few days, waiting for Pereira
to drop off a payment for the most recent delivery.1
Helsene described this payment arrangement as one of “consignment,”
1
leading the government to rely, in part, on a consignment theory of
conspiracy. The legal term “consignment” refers to a sales arrangement in
which the buyer is permitted to return unsold goods to the seller. The
distinction between consignment sales and other payment arrangements,
such as credit sales, can be a critical one, as this court has described
consignment sales as “quintessential evidence of a conspiracy.” See United
(continued...)

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4 No. 14-1301
After Pereira received marijuana from Clarke, he distrib-
uted it for sale to various individuals, chief among them
Nicholas Urciuoli (“Urciuoli”). Urciuoli testified that he aided
Pereira throughout 2011 by selling marijuana acquired from
Pereira to others and collecting money from the customers.
Typically, Urciuoli received a pound of marijuana from Pereira
every one to three weeks, depending on how quickly Urciuoli
could sell it to his customers. Urciuoli was not required to pay
for the drugs up-front; rather, Pereira would receive payment
for the drugs after Urciuoli made his sales. Pereira never told
Urciuoli how much to charge for the marijuana, but chided
Urciuoli for not charging enough.
Urciuoli also performed a number of tasks for Pereira
beyond selling drugs, including storing large quantities of
marijuana at his residence on Pereira’s behalf. In May 2011,
Pereira paid Urciuoli approximately $10,000 to store 33 pounds
of marijuana at his house. Within a few days, it was all gone:
Urciuoli sold some of the marijuana to his own three or four
customers, while the rest was picked up by Pereira’s custom-
ers, only one of whom paid for the drugs up-front. When
Pereira learned that Urciuoli’s father was planning to move
into the house in August 2011, he expressed concern over what
(...continued)
1
States v. Brown, 726 F.3d 993, 999 (7th Cir. 2013). However, upon review of
the record, there is no evidence beyond Helsene’s mere use of the term
“consignment”—such as testimony that Pereira was permitted to return
unsold drugs that he had previously accepted for sale—to suggest that
Pereira paid for the marijuana on consignment. Instead, the evidence
supports the conclusion that Pereira purchased drugs on credit, and our
analysis will proceed accordingly.

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No. 14-1301 5
his “partners” would think about the situation and asked
Urciuoli to find a new location for the drugs. Urciuoli, who
understood that Pereira was referring to his suppliers in
California when he referenced his “partners,” reassured him
that nothing would change and continued to store marijuana
at his residence. Thereafter, Pereira paid him $250 per pound
to store large quantities of marijuana at his residence, which
Urciuoli again distributed to his and Pereira’s customers. Since
Pereira’s customers did not typically pay up-front for the
packages they received, Urciuoli maintained a handwritten
ledger containing a record of the outstanding debts and money
collected from those who owed Pereira for prior marijuana
orders. Following Pereira’s arrest, law enforcement personnel
recovered the ledger and over $60,000 in drug proceeds from
Urciuoli’s bedroom. Urciuoli agreed to cooperate with law
enforcement, and turned over $20,000 that he collected over
the next few weeks from customers who owed Pereira for prior
drug purchases.
In addition to compensating Urciuoli for storing marijuana,
Pereira paid him $150 per package to ship large quantities of
money—typically $40,000 per shipment—to Clarke and others
in California via UPS. Urciuoli testified that Pereira asked him
to accept packages of marijuana at his residence as well, but
that he refused to do this. Text messages between Pereira and
Urciuoli revealed that Pereira viewed this task as a “job” and
that when Urciuoli wouldn’t accept it, one of Pereira’s custom-
ers, Nicola Pisani (“Pisani”), accepted the job in his place.
Pisani also testified at trial, characterizing his involvement
with Pereira as a “business relationship.” In describing his
role in this relationship, Pisani said that he would typically

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6 No. 14-1301
receive three to four pounds of marijuana per month from
Pereira, except for when supply was low. Like Urciuoli, Pisani
did not have to provide cash up-front for the drugs that he
received from Pereira, nor was he required to sell the drugs at
a certain price. Rather, he had two to three weeks to pay
Pereira for these deliveries, usually owing him between $3,400
and $4,000 per pound of marijuana that he accepted.
Text messages between Pereira and Pisani revealed that the
two men frequently communicated about the status of pay-
ments that Pisani was expecting from people to whom he had
distributed marijuana. One such conversation revealed that
Pisani had given another individual $4,000 worth of marijuana
to distribute and was awaiting payment. When Pereira
questioned whether the other individual could “handle it,”
Pisani reassured him by explaining, “I trust the kid, and you
trust me.” Other text messages revealed that Pereira and Pisani
also spoke frequently about where and when to drop off
payments for prior orders or pick up more marijuana, which
sometimes involved going to Urciuoli’s house. Pisani would
give the money he owed to Pereira, Urciuoli, or once to
Pereira’s brother, Jimmy. Occasionally, Pisani exchanged the
marijuana he received if he didn’t like the quality of the
product; he never returned any drugs without exchanging
them for more and explained that Pereira discouraged returns
of any kind, telling him at one point, “[t]here’s [sic] no returns
here.”
The district court instructed the jury on the difference
between a conspiracy and a buyer-seller relationship and told
the jury that it could find Pereira guilty only if it found beyond

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No. 14-1301 7
a reasonable doubt that he was a member of the conspiracy
charged in the indictment.
After deliberating, the jury found Pereira guilty of conspir-
acy with intent to distribute at least 100 kilograms of mari-
juana. Pereira moved for a judgment of acquittal, arguing that
the evidence was insufficient to support a verdict of guilty. The
court denied the motion. This appeal followed.
II. ANALYSIS
We will reverse a conviction on sufficiency-of-the-evidence
grounds only when, after viewing the evidence in the light
most favorable to the prosecution, we determine that no
“rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt.” United States v. Love,
706 F.3d 832, 837 (7th Cir. 2013).
“Conspiracy is the extra act of agreeing to commit a crime,”
United States v. Brown, 726 F.3d 993, 997 (7th Cir. 2013), but in
cases involving drug sales, the analysis is complicated by the
fact that the substantive trafficking crime is itself an agree-
ment—one involving a buyer and seller who “agree on terms”
and “exchange money or commodities at the settled rate.” Id.
at 998 (citing United States v. Rock, 370 F.3d 712, 714 (7th Cir.
2004)). This underlying agreement between the buyer and the
seller is not the same as the agreement required to find
conspiracy. “Rather, conspiracy to traffic drugs requires an
agreement to further distribution.” Brown, 726 F.3d at 998.
Thus, to support a conviction for conspiracy here, the govern-
ment must prove (1) that Pereira agreed with another person
to further the distribution of drugs and (2) that Pereira know-
ingly and intentionally joined the agreement. See id. at 1005.

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8 No. 14-1301
The government may prove the existence of a conspiracy
through direct evidence, but often there will only be circum-
stantial evidence of the agreement to further distribution.
Circumstantial evidence can raise an inference of conspiracy,
but these factors can also be consistent with a mere buyer-seller
relationship. So, “we have routinely held that a conviction for
conspiracy to distribute drugs cannot be sustained solely on
circumstantial evidence.” United States v. Johnson, 592 F.3d 749,
755 (7th Cir. 2010). In Johnson, we identified a nonexhaustive
list of characteristics that strongly distinguish a conspiracy
from a buyer-seller relationship. These considerations include:
“sales on credit or consignment, an agreement to look for other
customers, a payment of commission on sales, an indication
that one party advised the other on the conduct of the other’s
business, or an agreement to warn of future threats to each
other’s business stemming from competitors or law enforce-
ment authorities.” Id. at 755–56 (internal footnote omitted).
Based on the evidence in this case, a reasonable jury could
infer that Pereira bought marijuana on credit from Clarke on at
least six occasions from April 2011 until his arrest in December
2011. Helsene testified that Pereira did not pay up-front for the
parcels of marijuana that Helsene delivered to his residence in
New Jersey. Instead, Pereira would pay for the prior delivery
or Helsene would wait in New Jersey for a few days until
Pereira paid him for the current load. Moreover, the record
indicates that the purpose of Helsene’s final trip to New Jersey,
which culminated in Pereira’s arrest, was to collect $50,000 that
Pereira owed Clarke. Finally, Urciuoli testified that Pereira
instructed him to mail packages of large quantities of cash to

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No. 14-1301 9
Clarke on several occasions. Taken together, this evidence is
sufficient to establish that Pereira obtained marijuana on credit.
That Pereira merely bought marijuana on credit is not, on
its own, sufficient to permit an inference of a conspiracy. See
Brown, 726 F.3d at 999. But here, as we recounted earlier, the
government’s evidence of conspiracy encompassed far more
than just a credit arrangement and is sufficient to permit a
reasonable jury to discern an agreement to further trafficking
of drugs. In the first place, the record establishes that Pereira’s
dealings with Clarke amounted to much more than just “a
single sale, on credit, in a quantity consistent with personal
consumption.” Id. at 1000. Helsene’s testimony revealed that
on at least four of the six occasions that he delivered marijuana
to Pereira, the kayaks contained between 60 and 100 pounds of
marijuana, indicating that Pereira bought large quantities of
drugs from his supplier. Furthermore, Pereira’s transactions
were not, as he argues, episodic. Helsene testified that he made
six deliveries to Pereira, beginning in April 2011, before his
arrest in December 2011, but did not make any trips from June
through August because all of the crops had been harvested.
Urciuoli and Pisani corroborated this portion of Helsene’s
testimony, as they both explained that there was a “slow
season” for marijuana distribution that began in May and
lasted until October or November. Excluding the summer
months during which Helsene made no trips, the evidence
sufficiently shows that Pereira received large quantities of
marijuana from Clarke at a rate of once a month, for six
months.
Quantity and frequency are circumstantial evidence of
conspiracy to distribute drugs and when they are coupled with

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10 No. 14-1301
the evidence of credit sales and other evidence of cooperation,
as we have in this case, there is a “basis for the jury to distin-
guish the alleged conspiracy from the underlying buyer-seller
relationship.” Johnson, 592 F.3d at 755, 756 n.5. See also Brown,
726 F.3d at 1002 (“[A] relationship exhibiting all three Johnson
factors … [is] widely accepted as sufficient proof of a traffick-
ing conspiracy.”). Given that all three factors—multiple, large
quantity purchases, on credit—are present here, a jury could
rationally conclude, beyond a reasonable doubt, that Pereira
was guilty of conspiracy to distribute drugs.
III. CONCLUSION
For the foregoing reasons, we AFFIRM Pereira’s conviction.

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