United States v. Stanley Bell ( 1996 )

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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,1 after granting a downward departure
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.
1
The Honorable D. Brook Bartlett, Chief Judge, United States
District Court for the Western District of Missouri.
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.
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