### THE HONORABLE RONALD E. LONGSTAFF, United States Distric t 1 

### Judge for the Southern District of Iowa, sitting by designation. ___________ No. 95-3240

___________ United States of America, * * Appellee, * * v. * * Stacy Macklin, * * Appellant. *

___________ 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. *

__________ Submitted: November 19, 1996 Filed: January 14, 1997

__________ Before RICHARD S. ARNOLD, Chief Judge, MAGILL, Circuit Judge, an d LONGSTAFF, District Judge. 1

___________

### The Honorable George F. Gunn, Jr., United States Distric t 2 

### Judge for the Eastern District of Missouri. -2- MAGILL, Circuit Judge.

Codefendants Willie Love and Stacy Macklin were convicted an d sentenced for possession of cocaine base with intent to distribute, i n violation of 21 U.S.C. § 841(a)(1) (1994). Both Love and Macklin challeng e the district court's decision pursuant to United States Sentencin g 2 Guideline § 2D1.1(b)(1) (1995) to increase their respective offense levels by two levels for pos session of a dangerous weapon. Love also challenges the admission into evidence of two photographs at his trial and allege s tri al misconduct by the government. Macklin challenges his sentence o n equal protection and rule-of-lenity grounds. We affirm.

I.
On May 31, 1994, officers of the St. Louis Police Department ob tained a warrant to search 5 243 Cates Avenue in St. Louis, Missouri. The police had information that Love, Macklin, and codefend ant Charles Hendricks, Jr. were trafficking in c ocaine at that residence. On June 1, 1994, prior to executing the search warrant, the police twice observed Hendricks leave th e residence, drive two blocks to the 5000 block of Vernon, and engage in wha t the o fficers believed to be drug trafficking. On the second occasion , Hendricks was arrested.

The officers returned to 5243 Cates after arresting Hendricks t o execute the search warrant. As the officers approached the residence, Lov e exited through the fr ont 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 a s a bedroom. The officers followed Love and fou nd him sitting on the edge of a bed. Upon searching the bed, the officers

### L ove and Macklin argue on appeal that the evidence wa s 3 

### insufficient to support their § 924(c)(1) convictions in light of Bailey v. United States , 116 S. Ct. 501 (1995). However, si nce the dis trict court dismissed the § 924(c)(1) charges prior to th e resentencing of Love and Macklin, we need not address this issue and accordingly decline to do so. -3- discov ered seven plastic bags containing cocaine base, a .357 magnu m 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 offi cers arrested Macklin as he was exiting another bedroom o n the s econd floor of the house. In that room, the police found over 20 0 grams of cocaine base, $16,000 in cash, and two handguns. A search of the kitche n also revealed several items associated with the preparation an d distribution of cocaine base.

Both Lov e and Macklin were charged with possession of cocaine bas e 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, i n violati on of 18 U.S.C. § 924(c)(1) (1994). A jury found Love guilty o f both charges, and Macklin pled guilty to both ch arges. 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 requir es sufficient evidence to show active employment of firearm b y defendant). See Order Remanding for Resentencin g (8th Cir. Feb. 2, 1996).

On remand, the district court granted the government's motion t o dism iss the § 924(c)(1) firearm charges against both Love and Macklin. 3 However, in resentencing both Love and Macklin on the

### The governm ent must also prove that the weapons were present 4 

### wh en the crime was committed before the two-level sentenc e enh ancement under U.S.S.G. § 2D1.1(b)(1) can be applied. Unite d States v. Shields , 44 F.3d 673 , 674 (8th Cir. 1995). Neither Love nor Macklin dispute the distri ct court's finding that the firearms were present during the commission of their crimes. We therefore do not address this issue. -4- remaining § 841(a)(1) possession counts, the dis trict court increased each defe ndant'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 objecte d 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.

Lo ve and Macklin argue that there was not sufficient evidence t o su pport a two-level sentence enhancement pursuant to U.S.S.G
. § 2D1.1(b )(1). They argue that there was no nexus between the firearm s 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 sentenc e enhancement, "the government must prove by a pre ponderance of the evidence that it w as not clearly improbable that the weapon was connected to th e 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 determinatio n 4 that the weapon was connected to the offense unless the district cour t clearly erred in this determination. Britton , 68 F.3d at 265.

Given the proximity of the firearms to the drugs in this case, th e ease with which the defendants could access the firearms, the

### -5-

ongoing drug trafficking occurring out of the re sidence at 5243 Cates, and the likely need for t he defendants to protect both the drugs and the cash found in the residence, we hold that the district court did not clearly er r in f inding that it was not clearly improbable that the firearms wer e 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 an d ammunition were foundin 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 tw o photographs that show Love and Macklin holding a large quantity of cash at
a nightcl ub. He argues that the photographs were not relevant and tha t they were unfairly prejudicial. We disagree.

The admission of evidence is a matter of discretion for the tria l 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 Unite d States v. Delpit , 94 F.3d 1134, 1146 (8th Cir. 1996); Unite d States v. Just , 74 F.3d 902, 904 (8th Cir. 1996). The photographs her e were offered into evidence to show the association between Love an d Macklin, to put into context Love's statement th at he was only involved in "small" sales of coca ine, 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 racia l 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 th e sen tencing hearing that 'Mr. Brown wasn't involved in a smal l le vel. He wasn't a mope who just delivered. He was up there a t the top.'"), aff'd sub nom. Griffin v. United States , 502 U.S. 46 (1991). -6- photographs were relevant. In light of all the other evidence admitte d 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 Unite d States v. Watts , 950 F.2d 508, 513-14 (8th Cir. 1991) (holding tha t photog raph of codefendants with cash and weapons was not unfairl y pre judicial "[i]n the context of all the other evidence, including [th e codefendants'] association, the large sums of cash found at other times, and law enforcement officer testimony regarding other weapons, vehicles an d the like associated with this and, in general, other drug activities").

IV.

Lo ve also argues that the government committed reversibl e prosecutorial miscond uct. 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 tha t 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 rema rks were improper, and (2) the remarks prejudicially affected the defendant's substantial rights

### -7-

so as to deprive him of a fair trial." United States v. Wiley , 29 F.3 d 345, 351 (8th Cir.), cert. denied , 115 S. Ct. 522 (1994). Trial courts ar e invest ed with broad discretion in controlling closing arguments, and w e will reverse only if the trial court abused that discretion. Id.

We do not think that the isolated us e of the word mope prejudicially affected the defendant's substantial rights so a s to deprive him of a fair trial. See id. (characterization of defendant as a "criminal" and "drug deal er" 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 defen dant of a fair trial); cf. United States v. McGuire , 45 F.3d 1177, 1189 (8th Cir.) (district court di d 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 no t 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 office r as to the drug traffi cking occurring out of 5243 Cates. See Trial Tr. at 121-22.

Simila rly, the reference to drugs as being ugly things did no t deprive Love of a fair trial. The prejudice to Love, if any, wa s insignificant given b oth the strength of the evidence against him and the admission of evidence at trial of the harmful ef fects 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 dru g were not objectionable where some testimony rega rding effects of drugs was adduced at trial).

### -8- V.
Finally, pointing to the increased penalties for cocaine base a s compared to powder cocaine, Macklin challenges h is sentence for possession of cocaine base with intent to distribute on equ al protection and rule-ofle nity grounds. Macklin's arguments lack merit. This Court ha s 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 State s
v. Delane y , 52 F.3d 182, 189 (8th Cir.), cert. denied , 116 S. Ct. 20 9 (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 i s 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.