U.S. v. Mitchell, 09-1260.

• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)
• Citation: 596 F.3d 18
• Docket Number: No. 09-1260.,09-1260.
• Parties: UNITED STATES of America, Appellee, v. Marcus MITCHELL, Defendant, Appellant.
• Decision Date: 22 February 2010

596 F.3d 18 UNITED STATES of America, Appellee,
v.
Marcus MITCHELL, Defendant, Appellant. No. 09-1260. United States Court of Appeals, First Circuit. Submitted January 5, 2010. Decided February 22, 2010.

[596 F.3d 20]

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.

Before TORRUELLA, Circuit Judge, SOUTER,^* Associate Justice, and STAHL, Circuit Judge.

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.

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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 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 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. 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

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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 "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 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

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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...