THE HONORABLE RONALD E. LONGSTAFF, United States District

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Judge for the Southern District of Iowa, sitting by designation.

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No. 95-3240

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United States of America, *

*

Appellee, *

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v. *

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Stacy Macklin, *

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Appellant. *

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Appeals from the United States

No. 95-3257 District Court for the

___________ Eastern District of Missouri.

United States of America, *

*

Appellee, *

*

v. *

*

Willie Love, *

*

Appellant. *

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 Submitted: November 19, 1996

 Filed: January 14, 1997

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Before RICHARD S. ARNOLD, Chief Judge, MAGILL, Circuit Judge, and

LONGSTAFF, District Judge. 1

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 The Honorable George F. Gunn, Jr., United States District

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Judge for the Eastern District of Missouri.

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MAGILL, Circuit Judge.

Codefendants Willie Love and Stacy Macklin were convicted and

sentenced for possession of cocaine base with intent to distribute, in

violation of 21 U.S.C. § 841(a)(1) (1994). Both Love and Macklin challenge

the district court's decision pursuant to United States Sentencing

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Guideline § 2D1.1(b)(1) (1995) to increase their respective offense levels

by two levels for possession of a dangerous weapon. Love also challenges

the admission into evidence of two photographs at his trial and alleges

trial misconduct by the government. Macklin challenges his sentence on

equal protection and rule-of-lenity grounds. We affirm. 

I.

On May 31, 1994, officers of the St. Louis Police Department obtained

a warrant to search 5243 Cates Avenue in St. Louis, Missouri. The police

had information that Love, Macklin, and codefendant Charles Hendricks, Jr.

were trafficking in cocaine at that residence. On June 1, 1994, prior to

executing the search warrant, the police twice observed Hendricks leave the

residence, drive two blocks to the 5000 block of Vernon, and engage in what

the officers believed to be drug trafficking. On the second occasion,

Hendricks was arrested.

The officers returned to 5243 Cates after arresting Hendricks to

execute the search warrant. As the officers approached the residence, Love

exited through the front door carrying an armful of clothes. When he saw

the officers, Love dropped the clothes, ran back into the residence, and

proceeded to a living room that was being used as a bedroom. The officers

followed Love and found him sitting on the edge of a bed. Upon searching

the bed, the officers
 Love and Macklin argue on appeal that the evidence was

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insufficient to support their § 924(c)(1) convictions in light of

Bailey v. United States, 116 S. Ct. 501 (1995). However, since the

district court dismissed the § 924(c)(1) charges prior to the

resentencing of Love and Macklin, we need not address this issue

and accordingly decline to do so.

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discovered seven plastic bags containing cocaine base, a .357 magnum

handgun, and a .22 caliber rifle in between the mattress and box spring.

The officers also discovered several photographs in the converted bedroom.

These photographs showed Love and Macklin at a nightclub holding a large

amount of cash. The officers arrested Love on drug charges.

The officers arrested Macklin as he was exiting another bedroom on

the second floor of the house. In that room, the police found over 200

grams of cocaine base, $16,000 in cash, and two handguns. A search of the

kitchen also revealed several items associated with the preparation and

distribution of cocaine base.

Both Love and Macklin were charged with possession of cocaine base

with intent to distribute, in violation of 21 U.S.C. § 841(a)(1) (1994),

and with using a firearm during and in relation to that offense, in

violation of 18 U.S.C. § 924(c)(1) (1994). A jury found Love guilty of

both charges, and Macklin pled guilty to both charges. The district court

sentenced the two defendants on both counts, but this Court remanded the

case to the district court for resentencing in light of Bailey v. United

States, 116 S. Ct. 501 (1995) (holding that conviction under § 924(c)(1)

criminalizing use of a firearm during and in relation to drug trafficking

requires sufficient evidence to show active employment of firearm by

defendant). See Order Remanding for Resentencing (8th Cir. Feb. 2, 1996).

On remand, the district court granted the government's motion to

dismiss the § 924(c)(1) firearm charges against both Love and Macklin.3

However, in resentencing both Love and Macklin on the
 The government must also prove that the weapons were present 4

when the crime was committed before the two-level sentence

enhancement under U.S.S.G. § 2D1.1(b)(1) can be applied. United

States v. Shields, 44 F.3d 673, 674 (8th Cir. 1995). Neither Love

nor Macklin dispute the district court's finding that the firearms

were present during the commission of their crimes. We therefore

do not address this issue. 

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remaining § 841(a)(1) possession counts, the district court increased each

defendant's total offense level by two levels pursuant to U.S.S.G. §

2D1.1(b)(1) for possession of a dangerous weapon. Both defendants objected

to the increase, but were overruled by the district court. The district

court imposed a term of imprisonment of 108 months on Love and 150 months

on Macklin.

II.

Love and Macklin argue that there was not sufficient evidence to

support a two-level sentence enhancement pursuant to U.S.S.G.

§ 2D1.1(b)(1). They argue that there was no nexus between the firearms

found in their bedrooms and the crime of drug trafficking. We disagree.

For the district court to apply § 2D1.1(b)(1)'s two-level sentence

enhancement, "the government must prove by a preponderance of the evidence

that it was not clearly improbable that the weapon was connected to the

charged offense." United States v. Britton, 68 F.3d 262, 264-65 (8th Cir.

1995), cert. denied, 116 S. Ct. 1322 (1996); U.S.S.G. § 2D1.1(b)(1),

comment. (n.3). We will not reverse the district court's determination

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that the weapon was connected to the offense unless the district court

clearly erred in this determination. Britton, 68 F.3d at 265. 

Given the proximity of the firearms to the drugs in this case, the

ease with which the defendants could access the firearms, the
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ongoing drug trafficking occurring out of the residence at 5243 Cates, and

the likely need for the defendants to protect both the drugs and the cash

found in the residence, we hold that the district court did not clearly err

in finding that it was not clearly improbable that the firearms were

connected with the offense of drug trafficking. Cf. United States v.

Wright, 29 F.3d 372, 374 (8th Cir. 1994) (holding that connection was not

clearly improbable for purposes of U.S.S.G. § 2D1.1 where handguns and

ammunition were found in defendant's bedroom and marijuana was found in a

case with a shotgun notwithstanding the defendant's allegation that some

guns were part of a collection and others were for hunting).

III.

Love argues that the district court erred in admitting two

photographs that show Love and Macklin holding a large quantity of cash at

a nightclub. He argues that the photographs were not relevant and that

they were unfairly prejudicial. We disagree.

The admission of evidence is a matter of discretion for the trial

court, and the trial court's determination that evidence is relevant and

that its probative value outweighs the danger of unfair prejudice will not

be reversed on appeal unless the trial court has abused that discretion.

See United States v. Delpit, 94 F.3d 1134, 1146 (8th Cir. 1996); United

States v. Just, 74 F.3d 902, 904 (8th Cir. 1996). The photographs here

were offered into evidence to show the association between Love and

Macklin, to put into context Love's statement that he was only involved in

"small" sales of cocaine, and to show that other items, such as the drugs

and guns, found near the photographs belonged to Love. See Trial Tr. at

22-24. 

Given the reasons for admitting the photographs, we cannot say that

the district court abused its discretion in finding that the
 Counsel for Love contended at oral argument that her client, 5

an African-American, understood the word "mope" to be a racial

epithet. However, there is no indication that the jury understood

mope to be a racial epithet. Moreover, counsel for the government

explained that the word was intended to refer to a low-level drug

dealer. Cf. United States v. Beverly, 913 F.2d 337, 349 n.15 (7th

Cir. 1990) (noting that "[t]he government had argued at the

sentencing hearing that 'Mr. Brown wasn't involved in a small

level. He wasn't a mope who just delivered. He was up there at

the top.'"), aff'd sub nom. Griffin v. United States, 502 U.S. 46

(1991).

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photographs were relevant. In light of all the other evidence admitted

against Love, including the cash and drugs found at 5243 Cates under Love's

bed and the testimony of law enforcement officers regarding ongoing drug

trafficking occurring out of that residence, we further conclude that the

admission of the photographs was not unfairly prejudicial. See United

States v. Watts, 950 F.2d 508, 513-14 (8th Cir. 1991) (holding that

photograph of codefendants with cash and weapons was not unfairly

prejudicial "[i]n the context of all the other evidence, including [the

codefendants'] association, the large sums of cash found at other times,

and law enforcement officer testimony regarding other weapons, vehicles and

the like associated with this and, in general, other drug activities").

IV.

Love also argues that the government committed reversible

prosecutorial misconduct. Specifically, Love challenges the government's

reference to him as a "mope" during rebuttal argument. Trial Tr. at 121. 5

He also challenges the government's statement during rebuttal argument that

drugs are "ugly stuff" and "do ugly things to people." Id. at 122.

"To prove prosecutorial misconduct, an appellant must prove that (1)

the prosecutor's remarks were improper, and (2) the remarks prejudicially

affected the defendant's substantial rights
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so as to deprive him of a fair trial." United States v. Wiley, 29 F.3d

345, 351 (8th Cir.), cert. denied, 115 S. Ct. 522 (1994). Trial courts are

invested with broad discretion in controlling closing arguments, and we

will reverse only if the trial court abused that discretion. Id.

We do not think that the isolated use of the word mope prejudicially

affected the defendant's substantial rights so as to deprive him of a fair

trial. See id. (characterization of defendant as a "criminal" and "drug

dealer" did not deprive defendant of a fair trial); United States v.

Schepp, 746 F.2d 406, 411-12 (8th Cir. 1984) (references to defendant as

a "criminal" and "hoodlum" did not deprive defendant of a fair trial); cf.

United States v. McGuire, 45 F.3d 1177, 1189 (8th Cir.) (district court did

not abuse discretion in holding that references to "contract hit" and "mob

murder" were not improper), cert. denied, 115 S. Ct. 2558 (1995); United

States v. Kindle, 925 F.2d 272, 278 (8th Cir. 1991) (district court did not

abuse discretion by permitting references to defendant as "hot papa" and

"boss" when based on evidence adduced at trial). The word mope was used

only once in reference to Love's status as a low-level drug dealer, a fact

supported by the evidence adduced at trial, and was used only after Love

challenged the veracity of the testimony given by a law enforcement officer

as to the drug trafficking occurring out of 5243 Cates. See Trial Tr. at

121-22. 

Similarly, the reference to drugs as being ugly things did not

deprive Love of a fair trial. The prejudice to Love, if any, was

insignificant given both the strength of the evidence against him and the

admission of evidence at trial of the harmful effects of cocaine. See id.

at 91; United States v. Harvey, 756 F.2d 636, 648 (8th Cir. 1985)

(government's reference to the effects of marijuana mixed with another drug

were not objectionable where some testimony regarding effects of drugs was

adduced at trial).
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V.

Finally, pointing to the increased penalties for cocaine base as

compared to powder cocaine, Macklin challenges his sentence for possession

of cocaine base with intent to distribute on equal protection and rule-oflenity grounds. Macklin's arguments lack merit. This Court has

consistently rejected the equal protection claim that he raises. See,

e.g., United States v. White, 81 F.3d 80, 84 (8th Cir. 1996); United States

v. Delaney, 52 F.3d 182, 189 (8th Cir.), cert. denied, 116 S. Ct. 209

(1995); United States v. Clary, 34 F.3d 709, 710-14 (8th Cir. 1994), cert.

denied, 115 S. Ct. 1172 (1995). Macklin's rule-of-lenity argument is

similarly foreclosed. See White, 81 F.3d at 84; United States v. Jackson,

64 F.3d 1213, 1219-20 (8th Cir. 1995), cert. denied, 116 S. Ct. 966 (1996).

VI.

For the foregoing reasons, the district court is affirmed.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.