The Honorable D. Brook Bartlett, Chief Judge, United States

1

District Court for the Western District of Missouri.

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No. 95-3757

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United States of America, *

*

Appellee, * Appeal from the United

* States District Court

v. * for the Western District

* of Missouri.

Stanley Bell, *

*

Appellant. *

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 Submitted: April 9, 1996

 Filed: July 24, 1996

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

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BOWMAN, Circuit Judge.

Stanley Bell pleaded guilty to distributing crack cocaine, a

violation of 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 downward 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 years

of supervised release. Bell timely appeals, and we affirm.
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I.

During the spring of 1994, Bell was the target of an investigation

into gang-related activities in Kansas City. During the investigation, the

police made two undercover purchases of cocaine base from Bell in early

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, Bell

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 coffee

table in the living room. 

On July 20, 1994, an indictment was returned against Bell charging

him with federal drug and weapons offenses. A week or so later, Bell

received a letter dated July 27, 1994, from the Federal Bureau of

Investigation, Forfeiture and Seized Property Unit, notifying him of civil

forfeiture proceedings against the $47,440. A similar letter dated July

29, 1994, informed Bell of another civil forfeiture proceeding against the

$1,231. Both letters indicated that the forfeiture actions were initiated

"for violation of The Controlled Substances Act." Bell did not contest the

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 Jeopardy Clause of the Fifth

Amendment. The Double Jeopardy Clause protects against three distinct

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 forfeiture of the money meant that he was twice placed in

jeopardy or, at the very 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 jeopardy

does not attach to civil forfeiture proceedings), and by United States v.

Ursery, 64 U.S.L.W. 4565, 4566 (U.S. June 24, 1996) (holding civil

forfeitures do not constitute punishment for purposes of the Double

Jeopardy Clause).

III.

Bell next argues that the District Court erred in denying his motion

to dismiss the firearm count under 18 U.S.C. § 924(c)(1), which applies to

any person who "during and in relation to any crime of violence or drug

trafficking crime . . . uses or carries a firearm." Relying on United

States v. Lopez, 115 S. Ct. 1624 (1995), Bell contends that Congress lacks

the authority under the Commerce Clause to make the use of firearms in

connection with drug trafficking a federal offense. In Lopez, the Supreme

Court 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 Congress

exceeded its Commerce Clause authority when it enacted § 922(q) because

mere possession of a gun in a school zone did not substantially affect

interstate commerce. The Court reasoned that § 922(q) "by its terms has

nothing to do with `commerce' or any sort of economic enterprise, however

broadly one might define those terms." Id. at 1630-31. Moreover, the

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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question affects interstate commerce." Id. at 1631. We reject Bell's

attempt to extrapolate the reasoning and holding in Lopez to § 924(c)(1).

Section 924(c)(1), unlike § 922(q), is tied to interstate commerce.

Section 924(c)(1) is not a free-standing statute; it imposes an additional

penalty for using or carrying a firearm during or in relation to the

violation of other federal statutes for which there plainly is a nexus to

interstate commerce. One of the statutory predicates for a § 924(c)(1)

violation is the commission of a federal drug-trafficking offense, which

is defined by § 924(c)(2) as including any felony punishable under the

Controlled Substances Act, 21 U.S.C. §§ 801-971 (1994). In this case, Bell

pleaded guilty to violating 21 U.S.C. § 841(a)(1). It is beyond question

that the activity § 841(a)(1) seeks to criminalize--the production and

distribution of controlled substances--substantially affects interstate

commerce. Congress has made explicit findings concerning the effect that

the drug trade has on interstate 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 substances

contribute to swelling the interstate traffic in such substances."); id.

§ 801(6) ("Federal control of the intrastate incidents of the traffic in

controlled substances is essential to the effective control of the

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. 1992). Although Bell's argument explicitly challenges

the constitutionality of § 924(c)(1), the argument implicitly questions the

constitutionality of § 841(a)(1) because § 924(c)(1) derives its
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interstate nexus from that underlying federal drug-trafficking provision.

Courts have determined consistently (both before and after Lopez)

that § 841(a)(1) is a valid exercise of congressional Commerce Clause

power. United States v. Weinrich, 586 F.2d 481, 498 (5th Cir. 1978)

(holding § 841(a)(1) constitutional even though it does not require an

interstate nexus as element of conviction), cert. denied, 440 U.S. 982

(1979) and 441 U.S. 927 (1979); United States v. Leshuk, 65 F.3d 1105,

1111-12 (4th Cir. 1995) (rejecting Lopez Commerce Clause challenge to §

841(a)(1)). As we previously have held, § 924(c)(1) is a permissible

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 an

activity that substantially affected interstate commerce, we reject Brown's

Lopez challenge.") (internal punctuation omitted), cert. denied, 64

U.S.L.W. 3868 (U.S. July 1, 1996); see also United States v. McMillian, 535

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' power

to regulate interstate commerce and therefore reserved to the states by the

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 also argues that his conviction for using a firearm under

§ 924(c)(1) should be reversed because the government failed to show

"active employment" of the firearm as required by Bailey v. United States,

116 S. Ct. 501, 505 (1995). The Supreme Court explained that the mere

storage of weapons in close proximity to drugs or drug proceeds does not

amount to active employment and therefore is not "use" within the meaning

of the statute, but that "brandishing, displaying, bartering, striking

with, and most
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obviously, firing or attempting to fire, a firearm" does constitute active

employment. Id. at 508. 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.

For the foregoing reasons, the judgment of the District Court is

affirmed.

A true copy.

Attest:

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