United States v. Frink , 328 F. App'x 183 ( 2009 )

UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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