### Th e Honorable D. Brook Bartlett, Chief Judge, United State s 1 

### District Court for the Western District of Missouri. ___________ No. 95-3757

___________ United States of America, * * Appellee, * Appeal from the United * States District Court v. * for the Western District * of Missouri. Stanley Bell, * * Appellant. *

___________ Submitted: April 9, 1996 Filed: July 24, 1996

___________ Before FAGG, JOHN R. GIBSON, and BOWMAN, Circuit Judges.

___________ BOWMAN, Circuit Judge.

Stan leyBell pleaded guilty to distributing crack cocaine, a violationof 21 U.S.C. § 841(a)(1) (1994), and to using a firearm during and in relation to a drug-trafficking offense, a violation of 18 U.S.C. § 924(c)(1) (1994). The District Court, after granting a downwa rd departure 1 for cooperation, sentenced Bell to thirty-six months of imprisonment for the drug-trafficking offense followed by a consecutive thirty-six months of imprisonment for the firearm offense. The court also imposed five year s of supervised release. Bell timely appeals, and we affirm.

### -2- I.
During the spring of 1994, Bell was the target of an investigatio n into gang-related activities in Kansas City. During the investigation, th e police made two undercover purchases of cocaine base from Bell in earl y June 1994. Following the undercover drug transactions, a search warrant for Bell's residence was issued by the Circuit Court of Jackson County , Missouri. When the police sought to execute the search warrant, Bel l pointed a loaded 9-mm semi-automatic pistol at the entry team. Bell was eventually arrested and a search incident to the arrest revealed that Bell
was carrying 9.5 grams of crack cocaine and $1,231 in cash. A briefcase found in the upstairs bedroom contained 520 grams of cocaine and $47,440 in cash. More handguns were found in other bedrooms and on the coffe e table in the living room.

On July 20, 1994, an indictment was returned against Bell chargin g himwith federal drug and weapons offenses. A week or so later, Bel l received a letter dated July 27, 1994, from the Federal Bureau o f Investigation, Forfeiture and Seized Property Un it, notifying him of civil forfeiture proceedings against the $47,440. A similar letter dated July 29, 1994, informed Bell of another civil forfeit ure proceeding against the $1,231. Both letters indicated that the forfeit ure actions were initiated "for violation of The Controlled Substances Act." Bell did not contest th e seizure of the cash and it was forfeited to the United States.

II.
Bell first argues that the District Court erred in denying his motion to dismiss the indictment based on the Double Je opardy Clause of the Fifth Amendm ent. The Double Jeopardy Clause protects against three distinc t governmental actions: (1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple

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punishments for the same offense. Schiro v. Farley , 114 S. Ct. 783, 789 (1994). "These protections stem from the underlying premise that a defendant should not be twice tried or punished for the same offense." Id

. Bell contends that the government's decision to prosecute him criminally after the civil forfe iture of the money meant that he was twice placed in jeopardy or, at the v ery least, that he received multiple punishments for the same offense. We disagree. Bell's argument is foreclosed by United States v. Clementi , 70 F.3d 997, 1000 (8th Cir. 1995) (holding jeopard y does not attach to ci vil forfeiture proceedings), and by United States v. Ursery , 64 U.S.L.W. 4565, 4566 (U.S. June 24, 1996) (holding civi l forfei tures do not constitute punishment for purposes of the Doubl e Jeopardy Clause).

III.
Bell next argues that the District C ourt erred in denying his motion to dismiss the firearm count under 18 U.S.C. § 9 24(c)(1), which applies to any per son who "during and in relation to any crime of violence or dru g traff icking crime . . . uses or carries a firearm." Relying on Unite d States v. Lopez , 115 S. Ct. 1624 (1995), Bell co ntends that Congress lacks the authority under the Commerce Clause to make the use of firearms i n connection with drug trafficking a federal offen se. In Lopez , the Supreme Cou rt struck down the Gun-Free School Zones Act of 1990, 18 U.S.C

. § 922(q), which made it a federal offense for any individual knowingly to possess a firearm in a school zone. The Court determined that Congres s
exc eeded its Commerce Clause authority when it enacted § 922(q) becaus e
mere possession of a gun in a school zone did not substantially affec t interstate commerce. The Court reasoned that § 922(q) "by its terms has nothing to do with `c ommerce' or any sort of economic enterprise, however broadlyone might define those terms." Id. at 1630-31. Moreover, th e Court also noted that § 922(q) "contains no jurisdictional element which would ensure, through case-by-case inquiry, that the firearm possession in

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quest ionaffects interstate commerce." Id. at 1631. We reject Bell' s attempt to extrapolat e the reasoning and holding in Lopez to § 924(c)(1).

Section 9 24(c)(1), unlike § 922(q), is tied to interstate commerce. Section 924(c)(1) is not a free-standing statute ; it imposes an additional penalt yfor using or carrying a firearm during or in relation to th e violation of other fe deral statutes for which there plainly is a nexus to interstate commerce. One of the statutory predicates for a § 924(c)(1 ) violationis the commission of a federal drug-trafficking offense, which is de fined by § 924(c)(2) as including any felony punishable under th e Controlled Substances Act, 21 U.S.C. §§ 801-971 (1994). In this case, Bel l pleaded guilty to vio lating 21 U.S.C. § 841(a)(1). It is beyond question that t he activity § 841(a)(1) seeks to criminalize--the production an d dis tributionof controlled substances--substantially affects interstat e commerce. Congress h as made explicit findings concerning the effect that the drug trade has oninterstate commerce. See , e.g. , 21 U.S.C. § 801(2) ("The illegal importation, manufacture, distribution, and possession and improper use of controlled substances have a substantial and detrimental effect on the health and general welfare of the American people."); id

. § 801(4 ) ("Local distribution and possession of controlled substance s contribute to swelling the interstate traffic in such substances."); id. § 801(6) ("Federal control of the intrastate incidents of the traffic in contro lled substances is essential to the effective control of th e interstate incidents of such traffic."). In light of these findings, we have held that Congress may regulate both interstate and intrastate drug trafficking under the Commerce Clause. United States v. Curtis , 965 F.2d 610, 616 (8th Cir. 19 92). Although Bell's argument explicitly challenges the constitutionality of § 924(c)(1), the argument implicitly questions th e constitutionality of § 841(a)(1) because § 924(c)(1) derives its

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interstate nexus from that underlying federal drug-trafficking provision.

Court s have determined consistently (both before and after Lopez ) that § 841(a)(1) is a valid exercise of congressional Commerce Claus e power. United States v. Weinrich , 586 F.2d 481, 498 (5th Cir. 1978 ) (holding § 841(a)(1) constitutional even though it does not require a n interstate nexus as element of conviction), cert. denied , 440 U.S. 98 2 (1979) and441 U.S. 927 (1979); United States v. Leshuk , 65 F.3d 1105 , 111 1-12 (4th Cir. 1995) (rejecting Lopez Commerce Clause challenge to § 841(a)(1))

. As we previously have held, § 924(c)(1) is a permissibl e extension of that power. United States v. Brown , 72 F.3d 96, 97 (8th Cir. 1995) (per curiam) ("Because Brown's section 924 (c)(1) conviction is based
on his section 841(a)(1) drug trafficking offense, which involved a n activity that substantially affected interstate commerce, we reject Brown' s Lopez challenge.") (internal punctuation omitted), cert. denied , 6 4 U.S.L.W. 3868 (U.S. July 1, 1996); see also United States v. McMillian , 53 5 F.2d 1035, 1037 n.1 (8th Cir. 1976) ("We . . . find the defendants ' argument that 18 U.S.C. § 924(c) is not within the scope of Congress' powe r to regulate interstate commerce and therefore reserved to the states by th e Tenth Amendment, unpersuasive."), cert. denied , 434 U.S. 1074 (1978). The District Court properly denied Bell's motion to dismiss the firearm count.

IV.

Bell a lso argues that his conviction for using a firearm unde r § 92 4(c)(1) should be reversed because the government failed to sho w "active employment" of the firearm as required by Bailey v. United States , 116 S. C t. 501, 505 (1995). The Supreme Court explained that the mer e storage of weapons in close proximity to drugs or drug proceeds does not amount to active empl oyment and therefore is not "use" within the meaning of t he statute, but that "brandishing, displaying, bartering, strikin g with, and most

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obviously, firing or attempting to fire, a firea rm" does constitute active employment. Id. at 5 08. In the present case, it is undisputed that Bell pointed a loaded firearm at the search warrant entry team. This conduct is the type of active employment contemplated by Bailey . Bell' s § 924(c)(1) conviction therefore must be sustained.

V.

Fo r the foregoing reasons, the judgment of the District Court i s affirmed.

A true copy.

Attest:

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