In US v. Mitchell, No. 09-1260, the First Circuit faced a challenge to a conviction for conspiring to distribute cocaine. Defendant, Marcus Mitchell, claimed (1) that the district court improperly admitted out-of-court co-conspirator statements despite insufficient evidence to corroborate Mitchell's participation in the conspiracy, and (2) 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.
As stated in the decision: "Phone records showed calls from Mitchell's listed phone number to Clas and Rodriguez, and, as discussed, call patterns and conversations among co-conspirators provided strong circumstantial proof that Mitchell was indeed 'Prieto'."
In upholding the conviction, the court found that as to the first issue: "[t]he 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."
Further, as to the buyer-seller instruction, "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" particularly considering that "the evidence at trial showed that Mitchell was involved in multiple transactions, for large, kilogram-quantities of cocaine, for large sums of money" and also that he "made pre-arranged purchases from other conspiracy members" and was "familiar with the conspiracy's drug code."