UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit. 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-ofcourt 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 
19 

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. 
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 
24 

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.