United States v. Frink

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 08-4163

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

JAMES ANTHONY FRINK,

Defendant - Appellant.

No. 08-4233

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

GREGORY L. WALKER,

Defendant - Appellant.

Appeals from the United States District Court for the Eastern
District of North Carolina, at Wilmington. Earl W. Britt,
Senior District Judge. (7:07-cr-00076-BR-2; 7:07-cr-00076-BR-1)

Argued: March 27, 2009 Decided: May 14, 2009

Before WILKINSON, MOTZ, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.

ARGUED: Stephen Clayton Gordon, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Raleigh, North Carolina; Paul K. Sun, Jr., ELLIS &
WINTERS, LLP, Raleigh, North Carolina, for Appellants. Anne
Margaret Hayes, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh,
North Carolina, for Appellee. ON BRIEF: Thomas P. McNamara,
Federal Public Defender, Raleigh, North Carolina, for
Appellants. George E. B. Holding, United States Attorney,
Jennifer May-Parker, Assistant United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.

2
PER CURIAM:

This is a consolidated appeal by James Anthony Frink and

Gregory L. Walker challenging the nonproduction of purportedly

exculpatory evidence, the admission of Walker’s jailhouse

telephone conversations with his girlfriend, the suggestiveness

of the photographic array used to identify Walker, the

sufficiency of the evidence to convict both Walker and Frink,

Walker’s career offender enhancement, and the propriety of

charging Frink with a firearm offense. Finding no error, we

affirm.

I.

The events giving rise to this case are as follows. In

August 2006, Sergeant Steven Worthington of the Columbus County,

North Carolina, Sheriff’s Office began an investigation into

drug trafficking in Whiteville, North Carolina, in an area known

as Stanley Circle. Because the officers determined that the

community would be difficult to penetrate even in unmarked cars,

Worthington decided to utilize a confidential informant named

Edward Boone. Boone had previously worked as a confidential

informant for other police departments. The record indicates

that Boone had no other source of income; lived in an apartment

paid for by the Bladen County, North Carolina, authorities; and

3
used a cellular telephone and bicycle also paid for by Bladen

County.

Boone did not have an inside connection with the Stanley

Circle drug trade, so he arranged for an introduction through an

acquaintance, Tremaine Howard. Howard did not know that Boone

was operating as a police informant. On August 14, 2006, Boone

and Worthington met at a staging area where Worthington gave him

$1700 in order to buy drugs. The officers then took Boone back

to his apartment complex, where he met Howard. Boone and Howard

picked up another man named “Full Throttle” and proceeded to

Stanley Circle. Worthington and other officers observed the men

from the time they left the complex until they approached

Stanley Circle. At that point, about half of a mile away, the

officers pulled into a shopping center parking lot so that they

would not be observed. From that location, however, the

officers could not receive a signal from the audio recording

device they had planted on Boone. At Stanley Circle, Full

Throttle approached someone named “J.,” and Boone joined them.

J. sold Boone two ounces of crack cocaine for $1700, after which

J. gave Boone his telephone number. At trial, Boone identified

J. as defendant James Frink.

On August 16, Boone made a recorded phone call to J. to ask

for more drugs and for a gun. He followed up during another

recorded conversation on August 22, at which point J. quoted a

4
price of $1000 per ounce of crack cocaine and offered to sell it

to him later that day. However, J. said that he did not yet

have the gun. Worthington gave Boone $1000 to purchase the

drugs. Boone arranged for a man named Donnell to drive him to

Stanley Circle. Boone purported to get lost on the way, and he

called J., who met him at a grocery store parking lot and then

led the way back to Stanley Circle. Across the street from the

store parking lot, Worthington saw J., whom he identified as

Frink, drive up, but Worthington remained in the parking lot and

did not follow them. When Boone and company arrived at Stanley

Circle, a gray Buick was about to drive out, but it then backed

up and parked once it saw them. Boone was allegedly only five

feet away from the Buick, and at trial, he identified its driver

as defendant Gregory Walker, whose alias was “C-Man.” J.

approached C-Man before returning to his own car, after which

they both drove away. J. returned shortly thereafter, and from

J.’s back seat, Boone exchanged his money for crack cocaine. He

asked if J. could get him a gun, and J. responded that he could.

On August 23, 2006, Boone made two recorded telephone calls

to J. asking if J. had a gun for him. J. said that he did, and

Boone also requested more drugs. The next day, Boone placed

another recorded telephone call to J., and J. said that the gun

would be “a little thirty-two” and would cost about $150.

(Supp. J.A. 713.) Worthington gave Boone $1050, and Howard

5
drove Boone to Stanley Circle. Worthington assumed his usual

post in the parking lot and, once again, could not record what

transpired. When Boone pulled into Stanley Circle, a green Ford

Expedition was parked there. C-Man was in the driver’s seat,

and he handed a bag to J. J. then got into Boone’s back seat

and gave him the bag, which contained crack cocaine. J. also

gave Boone a gun. Boone gave J. the $1050, but J. said that he

owed another $100. They arranged for Boone to pay the remainder

later. When Boone reported back, Worthington found the .32-

caliber gun to be fully operational.

After the August 24 transactions, Worthington requested

assistance from the U.S. Bureau of Alcohol, Tobacco, Firearms

and Explosives (“ATF”). Special Agent Geoff Brown was sent to

lead the investigation. Brown assigned Special Agent Charles

Patterson to accompany Boone on a future transaction at Stanley

Circle. On October 25, Patterson and Boone met to discuss their

cover story. Patterson would drive a Chevrolet Silverado pickup

truck that was equipped with audio and video recording

equipment. Brown gave Patterson cash to buy firearms and two

ounces of crack cocaine. Boone and Patterson went to Stanley

Circle on October 27, but neither J. nor C-Man was present.

However, they talked to a man named “Dede,” who called C-Man.

When C-Man arrived, Dede talked to him, then C-Man left to go

get the drugs. Brown, Worthington, and other officers were at

6
their usual location and observed a truck leave Stanley Circle

and return shortly thereafter. When C-Man returned, he gave a

plastic bag containing crack cocaine to Dede, who took it to

Patterson and Boone. Boone identified defendant Walker as the

person in the truck who handed Dede the drugs. Patterson also

identified Walker, both in court and in a photographic array, as

the person in the truck. Boone gave Dede $2100. Patterson

asked Dede if he had any guns. After conferring with C-Man,

Dede returned and relayed that J. would return an hour later

with the guns. Patterson and Boone did not wait for him to

return, and Walker and Frink were subsequently arrested.

While in custody at the Columbus County Jail, Walker made a

series of telephone calls to his girlfriend, Alice Faye Black.

During these phone calls, several drug references were made,

including questions about how his clientele would continue to be

serviced. Walker challenges the admission of the telephone

calls at trial.

The appellants were charged with conspiring to distribute,

and possessing with intent to distribute, more than fifty grams

of cocaine base, and with distributing five or more grams of

cocaine base. Additionally, Frink was charged with using and

carrying a firearm during and in relation to a drug trafficking

crime, and with possessing a firearm in furtherance of a drug

trafficking crime. The jury found Frink guilty on all counts,

7
and it found Walker guilty on all counts except one of the drug

distribution counts. The district court sentenced Frink to an

imprisonment term of 187 months and Walker to a term of 360

months.

II.

The appellants raise several issues, each of which will be

addressed below.

A.

Walker and Frink argue first that the government failed to

disclose exculpatory information when it did not provide the

entire set of recordings from the various drug transactions in

which Boone interacted with the appellants. Instead, they

allege that the government produced only a short, edited

videotape of the final transaction that involved Agent

Patterson. They contend that the undisclosed recordings have

inherent exculpatory value and that their nondisclosure entitled

them to a judgment of acquittal. Frink makes this argument for

the first time on appeal, so we review his claim for plain

error. United States v. Higgs, 353 F.3d 281, 309 (4th Cir.

2003). Walker raised the issue below, but the district court

denied his motion. The denial of a motion for a judgment of

acquittal is reviewed de novo. United States v. Romer, 148 F.3d

359, 364 (4th Cir. 1998).

8
 In support of their argument, the appellants cite

California v. Trombetta, 467 U.S. 479 (1984). There, the

Supreme Court found that the Due Process Clause did not require

California to preserve original breathalyzer samples. First,

the Court noted that the government did not act in bad faith in

failing to preserve the samples. Second, the Court set forth

the following test of constitutional materiality: “evidence

must both possess an exculpatory value that was apparent before

the evidence was destroyed, and be of such a nature that the

defendant would be unable to obtain comparable evidence by other

reasonably available means.” Id. at 489.

Contrary to appellants’ contentions, while it is possible

that the recordings of the drug transactions would have

contained exculpatory information, such exculpatory value is far

from being evident on its face. More important, however, is the

fact that there is no concrete evidence that the recordings ever

existed. Worthington consistently maintained that he was unable

to record the transactions from his standpoint a half-mile away.

(J.A. 200, 202-04.) Although reports drafted after each

transaction indicate that the audio equipment “enabled agents to

listen” to the transactions (J.A. 200-01, 203, 204-05.), the

government concedes that the report is inaccurate. There is no

evidence of the recordings outside of these reports, and

Worthington consistently testified that they did not exist.

9
 Moreover, the appellants’ evidence of the existence of an

audio recording of Agent Patterson’s wire during the October 27

transaction separate from the truck’s audio and video recording

is similarly lacking. The only evidence the appellants point to

that shows the existence of a separate audio recording of the

wire is that Patterson said that there were “two recordings.”

(J.A. 455.) However, he then immediately followed that

statement with a contrast of the wire that “everybody can hear”

and the “audio and video recording from the truck itself.” (Id.

(emphasis added).) Later in his testimony, he once again

distinguished between the wire that allowed agents to “hear” him

and the “audio recordings that is [sic] recorded on the truck.”

(J.A. 481 (emphasis added).) Read in context, Patterson’s

testimony suggests that the wire communications were not

recorded. Without concrete evidence of the existence of any of

the recordings that the appellants desire, we cannot find that

the government improperly withheld them. Therefore, this

contention fails.

B.

The appellants next make several challenges concerning the

recording of Walker’s jailhouse telephone calls. The district

court’s evidentiary rulings are reviewed for abuse of discretion

and, pursuant to Federal Rule of Criminal Procedure 52, we will

disturb the district court’s decision only if an error was not

10
harmless. United States v. Brooks, 111 F.3d 365, 371 (4th Cir.

1997).

Walker contends that Title III of the Omnibus Crime Control

and Safe Streets Act of 1968, 18 U.S.C. § 2510 (2006), prevents

the use of the recorded jailhouse telephone conversations

between him and his girlfriend. 1 Title III generally prohibits

the unauthorized interception of “any wire, oral, or electronic

communication.” Id. at § 2511(1)(a) (2006). All of the parties

agree that Title III applies to jailhouse telephone calls, and

Court precedent supports this conclusion. United States v.
1
Frink also challenges the recordings, but we conclude that
he does not have standing to do so. Title III provides to any
“aggrieved person” the ability to move for suppression of an
intercepted communication. 18 U.S.C. § 2518(10)(a) (2006). The
statute defines an “aggrieved person” to be “a person who was a
party to any intercepted wire, oral, or electronic communication
or a person against whom the interception was directed.” Id. at
§ 2510(11). This Court has held that in order for a party to
show that he was aggrieved, he must demonstrate that “he was a
party to an intercepted communication, that the government’s
efforts were directed at him, or that the intercepted
communications took place on his premises.” United States v.
Apple, 915 F.2d 899, 905 (4th Cir. 1990).

In this case, Frink was not a party to the communications
and the communications did not take place on his premises.
While the government’s efforts might have been broadly directed
at him in the sense that they were trying to gather evidence for
the conspiracy, there is no indication that Frink was
specifically targeted in these recordings. Indeed, since Walker
never placed any phone calls to him from jail, it would be
difficult to argue that the government’s efforts were directed
at him. Therefore, Frink does not have standing to bring this
claim.

11
Hammond, 286 F.3d 189, 192 (4th Cir. 2002). The parties differ,

however, in their views on whether an exception to Title III

applies that allows the use of the taped calls.

According to 18 U.S.C. § 2511(2)(c) (2006), “It shall not

be unlawful under this chapter for a person acting under color

of law to intercept a wire, oral, or electronic communication,

where such person is a party to the communication or one of the

parties to the communication has given prior consent to such

interception.” This Court construed the exception in Hammond,

where it held: “We conclude that the ‘consent’ exception

applies to prison inmates . . . required to permit monitoring as

a condition of using prison telephones . . . .” 286 F.3d at

192.

The parties agree that at the beginning of each telephone

call, before the recipient presses “0” to accept it, a recorded

message is played that notifies the callers that their

conversation is “subject to monitoring and recording.” (E.g.,

Supp. J.A. 715, 721.) Given this warning, it would be difficult

to find that Walker did not give his consent to the recordings.

He argues, however, that “[t]he inclusion of a ‘subject to

monitoring’ warning did not establish consent to the

interception of the telephone calls; it merely established

acquiescence to the prospect that the calls would be monitored.”

(Appellants’ Br. 35.) In support of this proposition, he cites

12
United States v. Daniels, 902 F.2d 1238 (7th Cir. 1990). In

that case, however, the Seventh Circuit merely noted that

“knowledge and consent are not synonyms,” but did not address

the merits of the argument because it found the law enforcement

exception to apply. Id. at 1245. Therefore, Daniels does not

counsel against our finding the consent exception to apply.

With regard to the law enforcement exception,

§ 2510(5)(a)(ii) of Title III allows “an investigative or law

enforcement officer in the ordinary course of his duties” to

engage in an interception. In Hammond, this Court found the law

enforcement exception to apply because “the [Bureau of Prisons]

was acting pursuant to its well-known policies in the ordinary

course of its duties in taping the calls.” 286 F.3d at 192.

The same reasoning would apply in this case.

Walker argues that the government did not make a showing

that the calls were taped in the ordinary course of business at

the jail or that they were intercepted by an investigative or

law enforcement officer. However, as evidenced by the

transcripts in the record and as Walker concedes (Appellants’

Br. 37), all calls were routed through the jail’s central

recording system, and the message was played at the beginning of

each outgoing phone call. Thus, law enforcement officers were

acting in the ordinary course of their duties by taping the

calls.

13
 The appellants also assert that the telephone call

recordings were inadmissible hearsay inasmuch as Black was not

shown to be part of the conspiracy at issue. However, this

Court has held, in a similar factual situation, that the

statements of the recipient of a phone call made by a party

“were reasonably required to place [the defendant’s] responses

into context. Accordingly, [the recipient’s] statements were

properly admitted to make [the defendant’s] statements, so far

as they constituted incriminating admissions, intelligible to

the jury and recognizable as admissions.” United States v.

Wills, 346 F.3d 476, 490 (4th Cir. 2003) (internal quotations

omitted). Thus, the appellants’ hearsay objection fails.

The appellants maintain that the district court abused its

discretion in admitting the transcripts of the recorded

telephone calls because the government had made no showing of

the intelligibility of the recordings and because they were

cumulative. The appellants have identified no errors in the

transcript, and it was within the district court’s discretion to

admit them. United States v. Capers, 61 F.3d 1100, 1107 (4th

Cir. 1995). Moreover, the district court gave a limiting

instruction in which it told the jury that, “if there is a doubt

in your mind between what the transcript shows and what you hear

on the tape, then you go by the tape because it is the

14
evidence.” (J.A. 150.) Thus, it was not an abuse of discretion

for the district court to admit the transcripts.

Finally, the appellants argue that the government failed to

give adequate notice of anticipated expert testimony

interpreting the recordings. Federal Rule of Criminal Procedure

16(a)(1)(G) requires the government to give, at the defendant’s

request, a summary that “describe[s] the witness’s opinions, the

bases and reasons for those opinions, and the witness’s

qualifications.” Specifically, the appellants take issue with

Agent Smith’s informing the jury that: 1) “papers” meant drugs

or money (J.A. 517-18), 2) “four cans” meant four ounces of

crack cocaine (J.A. 520), and 3) “J.A.” meant “James Frink”

(J.A. 522). However, it was the appellants themselves who asked

Smith whether “four cans” meant “four ounces of drugs.” (J.A.

525.) Additionally, the government simply asked Smith if he

knew someone in the investigation whose initials were “J.A.,” to

which he responded, “James Anthony Frink.” (J.A. 522.)

The most compelling claim the appellants present in this

regard concerns the code words for the drugs. However, the

decision to impose a sanction for violating Rule 16 is in the

district court’s discretion, see United States v. Hastings, 126

F.3d 310, 317 (4th Cir. 1997), and there is no indication that

the defendants were prejudiced by the statements, see United

States v. Chastain, 198 F.3d 1338, 1348 (11th Cir. 1999). This

15
is especially so in light of the fact that the government

informed the appellants, prior to Agent Smith’s testimony, that

he would be testifying about drug-trafficking code words. Thus,

we conclude that this argument also fails.

C.

The appellants next contend that Agent Patterson’s out-of-

court identification of Walker should not have been admitted

because the procedure by which it was obtained was impermissibly

suggestive and violated Walker’s due process rights. In

considering a similar situation in United States v. Saunders,

501 F.3d 384 (4th Cir. 2007), this Court determined that in

order to prevail on such a due process claim, the following

conditions must be met:

First, the defendant must show that the photo
identification procedure was impermissibly suggestive.
Second, if the defendant meets this burden, a court
considers whether the identification was nevertheless
reliable in the context of all of the circumstances.
A witness’s out-of-court photo identification that is
unreliable and therefore inadmissible on due process
grounds also renders as inadmissible his subsequent
in-court identification.

Id. at 389-90 (internal citation and footnote omitted). We

review the matter de novo. Id. at 389.

In support of their contention that the photographic array

was unnecessarily suggestive, the appellants cite to Department

of Justice materials that recommend a sequential photograph

lineup prepared by an officer who was not involved in the

16
investigation. 2 The appellants contend that the photographic

array presented to Patterson was unduly suggestive in that

Walker’s photograph was cropped differently, the photographs

were not presented sequentially, and the array was prepared by

Agent Brown, who knew what Walker looked like.

First, the handbook that the appellants refer to itself

states in a disclaimer that its contents may not necessarily be

the official position of the Department of Justice. More

importantly, while some methods of presenting photographs might

be less suggestive than others, this Court is concerned with

whether the identification was “‘so impermissibly suggestive as

to give rise to a very substantial likelihood of irreparable

misidentification.’” Id. at 389 (quoting Simmons v. United

States, 390 U.S. 377, 384 (1968)). In the photographic array

(J.A. 57), eight pictures of similar-looking men were presented.

When Brown showed the array to Patterson, he indicated that

Walker’s photograph may or may not be in the array.

Upon reviewing the photographic array for the infirmities

that the appellants note, Walker’s photograph does not appear to

this Court to be any more suggestive than the other photographs,

especially since at least two other photographs also appear to

2
U.S. Department of Justice, Eyewitness Evidence: A Guide
for Law Enforcement (1999), http://www.ncjrs.gov/pdffiles1/nij/1
78240.pdf.

17
be closely cropped. Although presenting an array of photographs

sequentially might be ideal in terms of limiting

misidentifications, we cannot say on the facts presented in this

case that the manner of presentation was impermissibly

suggestive.

Moreover, given Patterson’s other interactions with Walker,

the totality of the circumstances would support the reliability

of his identification. In this regard, the appellants argue

that there was no contemporaneous description by Patterson of

Walker the day Patterson supposedly saw him in the pickup truck.

Moreover, they contend that his visibility was limited by rain

and note that he could not identify someone else in another

vehicle that was as close as Walker’s. 3 Finally, the appellants

find it “implausible” that Patterson had not seen a photograph

of Walker previously, given the centrality of Walker to the

investigation. (Appellants’ Br. 50.)

In Neil v. Biggers, 409 U.S. 188, 199-200 (1972), the

Supreme Court identified five factors to consider in evaluating

the reliability of eyewitness identification under the totality

of the circumstances:

[T]he opportunity of the witness to view the criminal
at the time of the crime, the witness’ degree of

3
Patterson contends that the vehicle had tinted windows.
(J.A. 481.)

18
 attention, the accuracy of the witness’ prior
description of the criminal, the level of certainty
demonstrated by the witness at the confrontation, and
the length of time between the crime and the
confrontation.

In the present case, Patterson testified that Walker was in his

direct line of sight when he arrived at Stanley Circle and that

he was able to see him clearly. Moreover, he was able to get

several more looks at Walker over the course of the transaction.

Second, there is no indication that Patterson was not paying

attention, and as a trained police officer, his degree of

attention is presumed to be higher than that of a lay person.

See Manson v. Brathwaite, 432 U.S. 98, 115 (1977). Third, it

appears that Patterson did not give a prior description, so

there is nothing to compare to his later description. Fourth,

Patterson indicated that he was very certain of the

identification, and he immediately recognized Walker in the

array and in court. Finally, only two weeks transpired between

the drug transaction and Patterson’s identification of Walker in

the photographic array. Given these factors, the totality of

the circumstances does not favor excluding the testimony. That

the appellants, with no support, find it “implausible” that

Patterson would not have seen a photograph prior to the

transaction is of little moment and unavailing.

19
 D.

The appellants challenge the sufficiency of the

government’s evidence to convict. The denial of a motion for a

judgment of acquittal is reviewed de novo. United States v.

Osborne, 514 F.3d 377, 385 (4th Cir. 2008). When the motion is

based on a claim of insufficient evidence, “[t]he verdict of a

jury must be sustained if there is substantial evidence, taking

the view most favorable to the Government, to support it.”

Glasser v. United States, 315 U.S. 60, 80 (1942).

In support of their argument that there was insufficient

evidence to convict, the appellants repeat many of the arguments

expounded upon above, and for the reasons given above, we find

them to be without merit. The appellants also contest the

veracity of Boone, the confidential informant. However, this

Court has determined: “We do not review the credibility of the

witnesses when we evaluate whether there existed sufficient

evidence to support a conviction. Just as the uncorroborated

testimony of one witness or of an accomplice may be sufficient

to sustain a conviction, the uncorroborated testimony of an

informant may also be sufficient.” United States v. Wilson, 115

F.3d 1185, 1190 (4th Cir. 1997) (internal footnote omitted).

Moreover, regarding the appellants’ argument that Worthington

improperly suggested C-Man’s identity to Boone prior to Boone’s

identification of Walker, even if the suggestion were improper,

20
there was still sufficient evidence to support the drug

convictions through the testimony of Agent Patterson.

E.

We will next review Frink’s firearm conviction. “In

reviewing the district court’s denial of a motion for judgment

of acquittal, we must consider the evidence viewed in the light

most favorable to the government and determine whether any

rational jury could have found each essential element of the

crime charged beyond a reasonable doubt.” Wilson, 115 F.3d at

1191. In Wilson, the Court set forth the parameters for

sustaining a conviction under 18 U.S.C. § 924(c)(1): “To

sustain a conviction under section 924(c)(1), the Government

needed to demonstrate that [the defendant] (1) used, or (2)

carried, (3) a firearm, (4) during and in relation to a drug

trafficking offense.” Id.

Frink takes issue with the “in relation to” prong. The

Supreme Court has held:

The phrase “in relation to” thus, at a minimum,
clarifies that the firearm must have some purpose or
effect with respect to the drug trafficking crime; its
presence or involvement cannot be the result of
accident or coincidence. . . . Instead, the gun at
least must facilitate, or have the potential of
facilitating, the drug trafficking offense.

Smith v. United States, 508 U.S. 223, 238 (1993) (internal

citations and quotation omitted). Frink argues that the drug

sales and the gun sale at issue were not dependent upon each

21
other, and thus the gun sale did not facilitate, or have the

potential of facilitating, the drug transaction. He contends

that Boone met with him for the sole purpose of purchasing crack

cocaine, and during one transaction, Boone simply asked for a

gun as a collateral matter, and Frink provided it to him.

Frink relies heavily on Wilson. That case also involved

the use of confidential informants by a local police force and

the ATF. The informant made two separate drug transactions and

two separate gun transactions. During the last transaction, the

informant had arranged to purchase drugs, but was also offered a

semiautomatic rifle, which he bought instead. The Court held

that the “sale of the firearm neither facilitated nor had the

potential of facilitating his marijuana sales” because a) the

rifle was not exchanged for drugs, b) the seller tried to sell

both the rifle and the drugs, c) there was no testimony from the

informant that the presence of the rifle influenced his decision

to purchase drugs, and d) the informant freely chose to purchase

the rifle instead of the drugs. Wilson, 115 F.3d at 1191-92.

There are significant differences between this case and

Wilson. First, when Boone bought the gun from Frink, he did not

pay the amount in full, but promised to do so during a future

transaction. Second, when Boone was setting up the third and

fourth transactions, he repeatedly asked for both guns and

drugs. From both of these actions, a reasonable jury could

22
infer that the guns facilitated the drug transactions: the

first action created an incentive—debt collection—for future

transactions. This incentive, when combined with Boone’s second

action, inextricably linked the gun and drug sales. Frink

attempts to distinguish his case from United States v. Lipford,

203 F.3d 259 (4th Cir. 2000), by arguing that Boone and Frink

had already established a course of drug dealing prior to the

gun sale. However, the same thing happened in Lipford, as the

gun sale did not occur until after two previous drug sales. Id.

at 263-64. Therefore, the Court’s reasoning in Lipford applies

equally here:

[A] drug purchaser can often “sweeten the pot,”
offering to purchase not only drugs, but other illegal
goods as well. Where that other illegal good is a
firearm, that gun’s involvement in the drug
transaction is not “spontaneous” or “co-incidental;”
on the contrary, the firearm facilitates the drug
transaction, making it possible for the drug buyer to
get the drug seller to take the risks inherent in
selling contraband.

Id. at 267.

In this case, it would be entirely rational for a jury to

infer that the gun sales “sweetened the pot” for Frink. Yet, we

do not suggest that the “in relation to” prong of § 924(c)(1)

may be satisfied automatically whenever a law enforcement agent

or informant initiates a gun transaction while also purchasing

drugs. Here, however, we are satisfied that there is sufficient

23
evidence to indicate that Frink’s gun sale was indeed transacted

in relation to the simultaneous drug sale.

III.

The appellants have raised several challenges to their drug

and firearm convictions, and we deny each of their claims. 4 The

decision of the district court is hereby affirmed.

AFFIRMED

4
Walker also argues that the district court erred in
applying the career offender enhancement to his case because it
was not charged in the indictment or found by a jury beyond a
reasonable doubt. However, two problems exist with Walker’s
reliance on Apprendi v. New Jersey, 530 U.S. 466, 490 (2000)
(“Other than the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury, and proved beyond
a reasonable doubt.”).

First, the Supreme Court explicitly excluded prior
convictions in its decision. Walker contends that the Court
will overturn Almendarez-Torres v. United States, 523 U.S. 224
(1998), the case that Apprendi referenced for the rule. Time
will tell whether the appellants are correct, but until then,
Almendarez-Torres remains good law. United States v. Cheek, 415
F.3d 349, 352-53 (4th Cir. 2005).

Second, and perhaps more fundamentally, Walker’s sentence
was not increased beyond the statutory maximum. Walker does not
dispute this, but instead simply requests this Court to abandon
its precedent for a prognostication on future rulings of the
Supreme Court. We decline to do so.

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