United States Court of Appeals
For the First Circuit
No. 09-1260
UNITED STATES OF AMERICA,
Appellee,
v.
MARCUS MITCHELL,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. George A. O'Toole, U.S. District Judge]
Before
Torruella, Circuit Judge,
Souter,* Associate Justice,
and Stahl, Circuit Judge.
James H. Budreau, on brief for appellant.
Theodore B. Heinrich, Assistant United States Attorney, and
Michael K. Loucks, Acting United States Attorney, on brief for
appellee.
February 22, 2010
*
The Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
TORRUELLA, Circuit Judge. Defendant-appellant Marcus
Mitchell was convicted after a jury trial for conspiring to
distribute cocaine. He now appeals his conviction on two grounds.
First, he contends that the district court improperly admitted out-
of-court co-conspirator statements despite insufficient evidence to
corroborate Mitchell's participation in the conspiracy. See United
States v. Petrozziello, 548 F.2d 20 (1st Cir. 1977). Second, he
contends that the district court erred by failing to give a "buyer-
seller" instruction sua sponte, which would have asked the jury to
consider whether Mitchell's relationship with the conspiracy was
that of an active member or merely a purchaser of narcotics for
personal use. We conclude that the government offered more than
sufficient extrinsic evidence to support the admission of the co-
conspirator statements and that the need for a buyer-seller
instruction was not supported by the record. We affirm.
I. Background1
A. The Conspiracy
From January to October 2004, Manuel Pinales ran a
wholesale drug operation that supplied large quantities of cocaine
to customers in the Boston area. Luis Clas, José Rodríguez, and
Richard Pena were also major players. Their customers typically
purchased kilograms of cocaine at a time, often on consignment, for
1
"We review the facts of a criminal case on appeal from a
conviction in the light most favorable to the verdict." United
States v. Candelaria-Silva, 162 F.3d 698, 700 (1st Cir. 1998).
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approximately $24,000 per kilogram. One of their customers, who
purchased wholesale quantities of cocaine, was known variously as
"Prieto"2 or "Marko."3
In January 2004, Clas asked Rodríguez to take over the
organization's distribution activities while he was away in the
Dominican Republic. Before he left, Clas introduced Rodríguez to
many of the organization's customers, one of whom was "Prieto." At
this initial meeting, Rodríguez sold "Prieto" and another man a
kilogram of cocaine. While Clas was away, Rodríguez was the
principal contact for Clas's customers.
From January through October 2004, Rodríguez delivered,
on five occasions, large quantities of cocaine to "Prieto,"
totaling approximately fifteen kilograms. "Prieto" generally
purchased one or two kilograms at a time, although he purchased
three kilograms on one occasion and five on another. "Prieto"
often purchased on consignment and, at one point, was in debt to
Rodríguez to the tune of $120,000.
B. The Wiretap Investigation
From July through October 2004, the Drug Enforcement
Administration (DEA), which had been investigating Pinales's role
in the conspiracy, began a wiretap investigation on phones
2
The Spanish term "Prieto" translates to "the dark one."
Mitchell is African-American.
3
As we have mentioned, Mitchell's first name is Marcus; "Marko"
is a Spanish equivalent.
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belonging to Pinales, Pena, Rodríguez, and Clas. Over eight
hundred phone calls were intercepted. Twenty-six are relevant to
this appeal.
There were thirteen calls involving other buyers, not
Mitchell. All of these calls were in code and involved conspiracy
members other than Mitchell discussing the purchase and sale of
drugs. Drugs were referred to as concert tickets, vehicles, or car
parts. For instance, during one recorded call, Clas arranged to
meet a customer to exchange "twenty three" for "a tire."
Subsequent surveillance of Clas showed him distributing a kilogram
of cocaine to that customer.
Seven calls (the "Mitchell calls") were made to, or
originated from, Mitchell's listed number. In these calls,
Mitchell spoke directly to Clas or Rodríguez in code about drugs
and drug proceeds. For instance, in one conversation, Rodríguez
said to Mitchell, "my boy told me about something but it wasn't um
. . . In the price range, what I was looking for . . . he set it
high . . . if worst comes to worst, I'll just, you know, I'll just
tell him to . . . give me that car . . . so I can um . . . I can
have stuff to . . . transportation." In another exchange, Clas
asked Mitchell, "[C]an I see you tomorrow please." Mitchell
replied, "[I]t's kind of early, man," but agreed to see him. At
trial, these calls were offered as admissions of the defendant.
-4-
Mitchell did not object to their admission, nor does he challenge
them on appeal.
Six calls (the "Prieto calls") involved conversations
among conspiracy members in which they discussed "Prieto." Two of
the Mitchell calls overlapped with the Prieto calls and provided
strong circumstantial evidence that Mitchell was "Prieto." For
example, during one recording, Mitchell called Rodríguez at 9:57
a.m. looking to speak to Clas. At 9:58 a.m., Rodríguez called
Pinales and asked him to tell Clas to call "Prieto." Pinales said
that he would. At 9:59 a.m., Clas called Mitchell. The remaining
calls demonstrated "Prieto's" role in the conspiracy. For example,
during one exchange, Rodríguez told Pinales that he was going to
collect a debt from "Prieto." The next day, he told Pinales that
"Prieto" only brought "nineteen pesos," short of the full payment
amount. In another call, Rodríguez asked Pinales if he could give
"Prieto" five "tickets" in advance since "Prieto" could only afford
three. The Prieto calls were offered at trial as co-conspirator
statements, which Mitchell now challenges in this appeal.4
C. The Jig is Up
In October 2004, government agents seized fifty-three
kilograms of cocaine from Clas's residence along with drug ledgers
from Pinales's store. The ledgers showed numerous entries for
4
The government does not dispute that the challenged statements
were being offered for the truth of the matters asserted. We
assume that they were.
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"Marko"/"Prieto," revealing that he generally received three to
five kilograms at a time, often delivered on consignment, and that
he owed up to $ 120,000 in the summer of 2004. Around this time,
Rodríguez began to cooperate with the government pursuant to a plea
agreement.
On February 23, 2005, government agents showed Rodríguez
an array of several photographs and asked him to identify anyone
that he knew. Rodríguez pointed to a photo of Mitchell and said,
"That's Prieto," although he did not know Mitchell's actual name.
Later, Mitchell was arrested and, in July 2005, indicted by a grand
jury. He was charged, along with thirteen co-defendants, with
conspiracy to possess with intent to distribute, and distribution
of, more than five kilograms of cocaine, in violation of 21 U.S.C.
§§ 841(a)(1), 841(b)(1)(A), and 846.
At Mitchell's jury trial, Rodríguez testified, among
other things, that Pinales, Pena, Clas, and Rodríguez only referred
to one customer as "Prieto"/"Marko." Rodríguez identified that
person as Mitchell. The government also introduced the wiretapped
calls, including the Prieto calls now challenged on appeal.
Mitchell made a timely objection to the admission of the Prieto
calls under Petrozziello, 548 F.2d 20, asserting that there was
insufficient evidence, independent of the co-conspirator statements
themselves, to establish that he was "Prieto" and therefore a
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member of the conspiracy.5 The district court disagreed and
admitted the statements. Mitchell was convicted after a four-day
trial and now appeals.
II. Discussion
A. Admission of Co-conspirator Statements
Mitchell's heartland claim on appeal is that he was
convicted on the basis of out-of-court statements that were
improperly admitted under the co-conspirator exception to the
hearsay rule. See Fed. R. Evid. 801(d)(2)(E). He challenges the
admission of those statements, and asks us to vacate his conviction
and remand for a new trial.6
Federal Rule of Evidence 801(d)(2)(E) permits the
admission of statements made "by a co-conspirator of a party during
the course and in furtherance of the conspiracy." See, e.g.,
United States v. Portela, 167 F.3d 687, 702 (1st Cir. 1999). To
introduce statements under this co-conspirator exception, "[t]he
proponent of the statement bears the burden of establishing, by a
5
Under Petrozziello, the party against whom a statement is being
offered must object to its admission at the time it is offered,
and, if the statement is admitted, renew the objection at the close
of all the evidence. United States v. Sepúlveda, 15 F.3d 1161,
1180 (1st Cir. 1993)(citations omitted). The court will then make
its final Petrozziello determination "out of the hearing of the
jury." United States v. Portela, 167 F.3d 687, 703 (1st Cir. 1999)
(citing United States v. Ciampaglia, 628 F.2d 632, 638 (1st Cir.
1980)).
6
Mitchell limits his appeal to whether sufficient evidence was
presented to establish his participation in the conspiracy. He
does not contest the existence of a conspiracy to distribute drugs.
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preponderance of the evidence, 'that a conspiracy embracing both
the declarant and the defendant existed, and that the declarant
uttered the statement during and in furtherance of the
conspiracy.'" United States v. Bradshaw, 281 F.3d 278, 283 (1st
Cir. 2002)(quoting Sepúlveda, 15 F.3d at 1180); see Fed. R. Evid.
801(d)(2)(E). A court's determination as to whether this burden
has been met is known in this circuit as a Petrozziello ruling.
See United States v. Famania-Roche, 537 F.3d 71, 75 (1st Cir.
2008)(citing United States v. Newton, 326 F.3d 253, 257 (1st Cir.
2003)).
"[A] co-conspirator's statement, standing alone, is
insufficient to meet the preponderance standard of Rule
801(d)(2)(E)." Sepúlveda, 15 F.3d at 1182. The proponent of the
statement must introduce some "extrinsic evidence . . . sufficient
to delineate the conspiracy and corroborate the declarant's and the
defendant's roles in it." United States v. Piper, 298 F.3d 47, 52
(1st Cir. 2002). Thus, "[w]hile a trial court may consider the
contents of the statement at issue as evidence of the elements of
a Petrozziello determination, the determination must rest at least
in part on corroborating evidence beyond that contained in the
statements at issue." Portela, 167 F.3d at 703. We will uphold
the trial court's admission of co-conspirator statements unless it
was clearly erroneous. United States v. Thompson, 449 F.3d 267,
273 (1st Cir. 2006).
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Mitchell's principal contention is that the admission of
the co-conspirator statements was in error because the
"uncorroborated" testimony of Rodríguez laid an insufficient
evidentiary foundation to support the conclusion that Mitchell was,
more likely than not, "Prieto," a member of the conspiracy. This
argument is a nonstarter. The testimony of Rodríguez, a
cooperating witness, was extrinsic evidence that was probative of
the existence of the conspiracy to distribute cocaine and
Mitchell's membership in that conspiracy. At trial, Rodríguez
identified Mitchell as "Prieto," one of his co-conspirators. See,
e.g., Portela, 167 F.3d at 703, 704 (co-conspirator's in-court
identification of defendant as conspiracy member supports admission
of co-conspirator statements). Rodríguez testified that Mitchell
regularly purchased, on consignment, multi-kilogram quantities of
cocaine from conspiracy members for tens of thousands of dollars at
a time. See, e.g., United States v. Moran, 984 F.2d 1299, 1303
(1st Cir. 1993) (pattern of drug sales between individuals for
redistribution supports conclusion that individuals were involved
in drug conspiracy). We have never held that the testimony of a
cooperating witness cannot be used to satisfy the government's
burden under Petrozziello. Indeed, our cases are to the contrary.
See Piper, 298 F.3d at 52 (testimony of cooperating co-conspirator
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supports admission of statements under Rule 801(d)(2)(E)); accord
Portela, 167 F.3d at 703-04.7
In any event, the government offered substantial
evidence, in addition to Rodríguez's testimony, to establish that
Mitchell was an active conspiracy member. The government offered
recordings of phone calls, which came into evidence as the
defendant's own admissions, in which Mitchell discussed drug-
related matters in code with other conspiracy members. See United
States v. Morales-Madera, 352 F.3d 1, 12-13 (1st Cir. 2003)
(defendant's use of drug code probative of membership in
conspiracy). Phone records showed calls from Mitchell's listed
phone number to Clas and Rodríguez, and, as discussed, call
patterns and conversations among co-conspirators provided strong
circumstantial proof that Mitchell was indeed "Prieto."8 See
United States v. Campbell, 268 F.3d 1, 6 n.4 (1st Cir. 2001)(phone
records and call patterns probative of conspiracy membership); see
7
A defendant's conviction for participation in a narcotics
distribution conspiracy may be upheld under a reasonable doubt
standard on the basis of the "uncorroborated" testimony of a
cooperating witness alone. See United States v. Gómez-Pabón, 911
F.2d 847, 853 (1st Cir. 1990) (rejecting defendant's argument that
cooperating witness's testimony was insufficient to establish
participation in conspiracy); see also United States v. Martínez-
Medina, 279 F.3d 105, 115 (1st Cir. 2002) (quoting United States v.
Andújar, 49 F.3d 16, 21 (1st Cir. 1995)) (same). Plainly, then,
the testimony of a cooperating witness may be used to satisfy the
lower evidentiary burden required by Petrozziello. 548 F.2d at 22,
23.
8
Mitchell does not dispute that Clas and Rodríguez were members
of a conspiracy to distribute cocaine.
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also Portela, 167 F.3d at 703 (phone records may corroborate
participation in conspiracy for purposes of Rule 801(d)(2)(E)).
The government also put into evidence a phone book seized
from Clas's apartment containing Mitchell's phone number with "El
Negro" written beside it.9 See Portela, 167 F.3d at 703 (co-
conspirator phone book containing defendant's phone number
probative of conspiracy involvement). Drug records seized from
Clas's residence and presented at trial showed that "Prieto"
/"Marko" made multiple purchases of multi-kilogram quantities of
cocaine from the conspiracy on consignment. See United States v.
Tejada, 886 F.2d 483, 487 (1st Cir. 1989)(drug ledger, containing
nicknames of defendant and other conspiracy members, is direct
evidence of membership in conspiracy); see also Martínez-Medina,
279 F.3d at 127 (drug ledgers may corroborate defendant's
participation in drug conspiracy).
We need not gild this lily any further. The government
introduced more than sufficient extrinsic evidence to establish
that Mitchell was, more likely than not, a member of the charged
conspiracy to distribute cocaine, and that the challenged
statements were in furtherance of the conspiracy's objectives. The
district court properly admitted the statements under Rule
801(d)(2)(E).
9
"El Negro" and "Prieto," when translated, both roughly mean "the
dark one."
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B. Buyer-Seller Instruction
Next, Mitchell argues that, though he himself did not
request one, the district court should have given a buyer-seller
instruction sua sponte because the evidence presented at trial
supported the theory that he was a mere buyer and not a co-
conspirator. See Moran, 984 F.2d at 1302. A buyer-seller
instruction is appropriate only if the record, when viewed in the
light most favorable to the defendant's theory of the case,
reasonably supports the conclusion that the defendant was a mere
purchaser of drugs for personal use and not an active participant
in the conspiracy. See United States v. Rodríguez, 858 F.2d 809,
812 (1st Cir. 1988). A "classic" buyer-seller relationship is a
single sale, for personal use, without prearrangement. Moran, 984
F.2d at 1304; United States v. Innamorati, 996 F.2d 456, 484 (1st
Cir. 1993)(buyer-seller instruction restricted to cases "in which
the evidence showed only a single or a very limited number of sales
for personal use").
We review the district court's failure to issue the
instruction sua sponte for plain error, United States v.
Varoudakis, 233 F.3d 113, 125 n.12 (1st Cir. 2000), bearing in mind
that "the plain error exception is cold comfort to most defendants
pursuing claims of instructional error." United States v. Gómez,
255 F.3d 31, 37 (1st Cir. 2001). To succeed, the defendant must
show "(1) that an error occurred, (2) which was clear or obvious
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and which not only (3) affected the defendant's substantial rights,
but also (4) seriously impaired the fairness, integrity, or public
reputation of judicial proceedings." United States v. Duarte, 246
F.3d 56, 60 (1st Cir. 2001).
We hold that the district court did not plainly err in
failing to give a buyer-seller instruction because the record does
not support the theory that Mitchell was a mere buyer for personal
use. At the outset, Mitchell never argued to the jury that he was
a mere buyer; his principal defense was that he was not "Prieto."
See United States v. Askew, 403 F.3d 496, 504 (7th Cir. 2005)
(defendant's "choice not to adopt a buyer-seller defense cuts in
favor of finding no error in the district judge's decision not to
give the instruction"); see also United States v. Johnson, 437 F.3d
665, 677 (7th Cir. 2006)(similar).
In any event, the evidence at trial showed that Mitchell
was involved in multiple transactions, for large, kilogram-
quantities of cocaine, for large sums of money. See Martínez-
Medina, 279 F.3d at 120 (no buyer-seller relationship where
defendant made repeated purchases of large quantities of drugs for
resale); see also United States v. Gómes, 376 F.3d 42, 45 (1st Cir.
2004)(even one sale between two parties can prove existence of
conspiracy when coupled with supporting contextual details). The
evidence established that he often received drugs on consignment.
United States v. Humphrey, 287 F.3d 422, 435 (6th Cir. 2002)
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(delayed credit plan evidences trust and supports a conspiracy link
between parties). He also made pre-arranged purchases from other
conspiracy members. United States v. Hawkins, 547 F.3d 66, 72 (2d
Cir. 2008)(pre-arrangement to deal in wholesale quantities of drugs
creates presumption of knowing conspiracy involvement). Moreover,
he was familiar with the conspiracy's drug code. Morales-Madera,
352 F.3d at 12-13 (defendant's use of drug code probative of his
role in conspiracy). Under these circumstances, a buyer-seller
instruction was not called for. There was no error -- let alone
plain error -- when the district court did not so instruct the
jury.
Affirmed.
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