United States v. Stacy Macklin ( 1997 )

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No. 95-3240
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United States of America, *
*
Appellee, *
*
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,1 District Judge.
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1
THE HONORABLE RONALD E. LONGSTAFF, United States District
Judge for the Southern District of Iowa, sitting by designation.
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
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the district court's decision pursuant to United States Sentencing
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
2
The Honorable George F. Gunn, Jr., United States District
Judge for the Eastern District of Missouri.
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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
3
Love and Macklin argue on appeal that the evidence was
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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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).4 We will not reverse the district court's determination
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
4
The government must also prove that the weapons were present
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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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
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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"5 during rebuttal argument. Trial Tr. at 121.
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
5
Counsel for Love contended at oral argument that her client,
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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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-of-
lenity 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.
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