Defendant-appellant Marcus Mitchell was convicted after a jury trial for conspiring to distribute cocaine. He now appeals his conviction on two grounds. Fust, 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,
I. Background 1
A. The Conspiracy
From January to October 2004, Manuel Piñales ran a wholesale drug operation that supplied large quantities of cocaine to customers in the Boston area. *21 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 Rodriguez to take over the organization’s distribution activities while he was away in the Dominican Republic. Before he left, Clas introduced Rodriguez to many of the organization’s customers, one of whom was “Prieto.” At this initial meeting, Rodriguez sold “Prieto” and another man a kilogram of cocaine. While Clas was away, Rodriguez was the principal contact for Clas’s customers.
From January through October 2004, Rodriguez 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 Rodriguez 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 Piñales, 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 Rodriguez in code about drugs and drug proceeds. For instance, in one conversation, Rodriguez 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, “[Ijt’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 Rodriguez at 9:57 a.m. looking to speak to Clas. At 9:58 a.m., Rodriguez called Piñales and asked him to tell Clas to call “Prieto.” Piñales said that he would. At 9:59 a.m., Clas called Mitchell. The *22 remaining calls demonstrated “Prieto’s” role in the conspiracy. For example, during one exchange, Rodriguez told Piñales that he was going to collect a debt from “Prieto.” The next day, he told Piñales that “Prieto” only brought “nineteen pesos,” short of the full payment amount. In another call, Rodriguez asked Piñales 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, Rodriguez began to cooperate with the government pursuant to a plea agreement.
On February 23, 2005, government agents showed Rodriguez an array of several photographs and asked him to identify anyone that he knew. Rodriguez 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, Rodriguez testified, among other things, that Piñales, Pena, Cías, and Rodriguez only referred to one customer as “Prieto”/“Marko.” Rodriguez 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,
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
*23
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,
“[A] co-conspirator’s statement, standing alone, is insufficient to meet the preponderance standard of Rule 801(d)(2)(E).”
Sepúlveda,
Mitchell’s principal contention is that the admission of the co-conspirator statements was in error because the “uncorroborated” testimony of Rodriguez 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, Rodriguez identified Mitchell as “Prieto,” one of his co-conspirators.
See, e.g., Portela,
*24
In any event, the government offered substantial evidence, in addition to Rodriguez’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,
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 Pórtela,
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).
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,
We review the district court’s failure to issue the instruction
sua sponte
for plain error,
United States v. Varoudakis,
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,
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,
Affirmed.
Notes
. "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,
. The Spanish term “Prieto” translates to "the dark one.” Mitchell is African-American.
. As we have mentioned, Mitchell’s first name is Marcus; "Marko” is a Spanish equivalent.
. The government does not dispute that the challenged statements were being offered for the truth of the matters asserted. We assume that they were.
. 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,
.Mitchell limits his appeal to whether sufficient evidence was presented to establish his participation in the conspiracy. He does not *23 contest the existence of a conspiracy to distribute drugs.
. 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,
. Mitchell does not dispute that Cías and Rodriguez were members of a conspiracy to distribute cocaine.
. "El Negro” and "Prieto,” when translated, both roughly mean "the dark one.”