Filed: Nov. 27, 2012
Latest Update: Feb. 12, 2020
Summary: -3-, district court erroneously admitted certain evidence at trial;that defense.United States v. Acosta, 67 F.3d 334, 337 (1st Cir.1, Roszkowski devoted much of his pretrial proffer to, establishing that his participation in the transaction with, Zarrella was a product of government inducement.
United States Court of Appeals
For the First Circuit
Nos. 11-1455
11-1456
UNITED STATES OF AMERICA,
Appellee,
v.
ARJUSZ ERIK ROSZKOWSKI,
Defendant, Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. William E. Smith, U.S. District Judge]
Before
Howard, Stahl and Lipez,
Circuit Judges.
Amy M. Belger for appellant.
Donald C. Lockhart, Assistant United States Attorney with whom
Peter F. Neronha, United States Attorney, was on brief, for
appellee.
November 27, 2012
HOWARD, Circuit Judge. After a three-day trial, a jury
in the District of Rhode Island convicted Arjusz Roszkowski of
being a felon in possession of a firearm, 18 U.S.C. § 922(g)(1),
and knowingly possessing a firearm with an altered serial number,
id. § 922(k). Roszkowski now appeals, claiming that the district
court erroneously precluded his proposed entrapment defense and
improperly admitted certain evidence at trial. He also contends
that the aforementioned statutes of conviction are unconstitutional
pursuant to the Supreme Court's recent decision in National
Federation of Independent Business v. Sebelius,
132 S. Ct. 2566
(2012). We affirm.
I.
The pertinent facts, which we recount in the light most
favorable to the verdict, United States v. Díaz, 670 F.3d 332, 337
(1st Cir. 2012), are uncomplicated. On November 5, 2009,
Roszkowski, a convicted felon, placed a phone call to Christopher
Zarrella, an undercover police officer posing as a black-market
arms dealer. During that conversation, which was recorded,
Roszkowski sought to procure, for the stated purpose of home
defense, a 12-gauge shotgun, a 9 mm handgun, and various types of
ammunition, including hollow-point bullets. Roszkowski also
demonstrated a substantial knowledge of firearms and ammunition
during the call, and he repeatedly expressed his interest in making
future purchases from Zarrella. After settling on the desired
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products and pricing terms, the two agreed to complete the
transaction at a secluded Rhode Island park the following day.
That transaction, as evidenced by the instant appeal, did
not go according to plan. As Roszkowski approached the designated
exchange point, Detective Zarrella spotted a gun protruding from
his front waistband. Fearing for his safety, Zarrella identified
himself as a police officer and attempted, unsuccessfully, to
arrest the appellant. A struggle ensued, during which Roszkowski
discharged the firearm, critically injuring himself. He was
quickly subdued, and a subsequent examination of his weapon, which
had been manufactured in Ohio, revealed that its serial number had
been removed.
Shortly thereafter, a federal grand jury in the District
of Rhode Island indicted Roszkowski on one count of being a felon
in possession of a firearm in violation of 18 U.S.C. § 922(g)(1),
and one count of knowingly possessing a firearm with an altered
serial number in violation of 18 U.S.C. § 922(k). He was
ultimately convicted on both counts and sentenced to 180 months'
imprisonment. This timely appeal followed.
II.
Challenging only his conviction, Roszkowski alleges that
(1) the district court's denial of his pretrial motions to unveil
and subpoena an alleged confidential informant deprived him of his
constitutional right to present a complete defense; (2) the
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district court erroneously admitted certain evidence at trial; and
(3) because the Commerce Clause does not endow Congress with the
requisite authority to regulate the conduct covered by the
underlying statutes of conviction, those statutes are invalid and
unenforceable. We address each of these claims in turn.
A. Discovery Motions
Prior to trial, Roszkowski -- who, against the persistent
advice of the trial judge, waived his right to counsel and
proceeded to represent himself -- filed motions to identify and
subpoena a purported confidential informant ("C.I."), asserting
that C.I.'s testimony was crucial to the development of a proposed
entrapment defense. Specifically, Roszkowski proffered the
following unsubstantiated facts, to which he claimed C.I. would
testify: that he met and befriended C.I. while they were briefly
co-habiting a Massachusetts halfway house; that C.I. sought his
help in acquiring various firearms and ammunition; that C.I.
provided him with the contact information of a supposed illicit
arms dealer (Detective Zarrella) in order to obtain the contraband;
and that C.I. urged him to bring a weapon to the transaction for
protection. These facts, he contends, ground a colorable defense
of entrapment -- and the trial court's denial of his discovery
motions, and consequent exclusion of C.I.'s anticipated testimony,
effectively deprived him of his constitutional right to present
that defense. See Washington v. Texas, 388 U.S. 14, 17-19 (1967);
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Brown v. Ruane, 630 F.3d 62, 71-72 (1st Cir. 2011). Though ably
advanced by counsel, the appellant's argument is unfounded.
Rulings on disclosure of informants ordinarily are
reviewed for abuse of discretion, see United States v. Robinson,
144 F.3d 104, 106 (1st Cir. 1998) ("We review a district court's
decision not to force the prosecution to divulge the identity of a
confidential informant for abuse of discretion."), and the standard
of review does not depend on the basis for the challenge to the
ruling, see United States v. DeCologero, 530 F.3d 36, 72–74 (1st
Cir. 2008)(reviewing for abuse of discretion the district court's
evidentiary rulings that allegedly violated defendant's right to
present a complete defense). In assessing the district court’s
decision here, we focus on Roszkowski’s reason for seeking the
disclosure, which was to support his purported entrapment defense.
To mount a viable claim of entrapment, a defendant must
make a threshold showing on two elements: first, that government
agents induced the crime with which the defendant was charged,
United States v. Acosta, 67 F.3d 334, 337 (1st Cir. 1995); and
second, that the defendant was not already predisposed to commit
the crime, United States v. Rogers,
102 F.3d 641, 645 (1st Cir.
1996). To demonstrate improper inducement, "a defendant must show
not only that the government provided [him] with [an] opportunity
to commit the crime, but also the existence of a 'plus' factor that
raises concerns of government overreaching," examples of which
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include "intimidation, threats, [or] dogged insistence." United
States v. Vasco, 564 F.3d 12, 18 (1st Cir. 2009) (citations and
internal quotation marks omitted).
At bottom, the failure to obtain C.I.'s projected
testimony did not prejudice the appellant's entrapment defense.
Even assuming that C.I. was, in fact, a confidential informant and
in that capacity acted as a government agent, and also that he
would have testified as Roszkowski suggests, at most his testimony
would have established that the appellant was the target of a
successful but otherwise unremarkable sting operation, which is
ordinarily insufficient to constitute entrapment. See United
States v. Dávila-Nieves, 670 F.3d 1, 9 (1st Cir. 2012) ("Operations
which merely give a defendant an opportunity to commit a crime,
including sting operations, ordinarily do not constitute
entrapment."); United States v. DePierre, 599 F.3d 25, 27-28 (1st
Cir. 2010) ("[T]he threshold that must be met to show wrongful
inducement is a high one. By their nature, 'stings' . . . do
'induce' crimes, if that word is used in its lay sense. But it is
settled that only undue pressure or encouragement are forbidden.").
The only material evidence of inducement, had C.I. confirmed
Roszkowski's claims, was that C.I. urged Roszkowski to bring a gun
to the November 6 transaction -- a fact which, even if true, does
not remotely approach the threshold showing necessary to establish
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a defense of entrapment.1 See Vasco, 564 F.3d at 18. Indeed,
Roszkowski's own standby counsel conceded as much, acknowledging at
the pretrial discovery hearing that he was "having a difficult time
perceiving" how such a defense would be constructed under the
apposite facts.
In the end, C.I.'s anticipated testimony would have, at
best, marginally reinforced a tenuous defense, and the district
court's refusal to compel that testimony, in light of the
appellant's speculative proffer, did not amount to constitutional
error. See United States v. Rodriguez, 858 F.2d 809, 812 (1st Cir.
1988) ("Entrapment comes into play only when the accused has
successfully carried what we have termed an 'entry-level burden.'"
(citation omitted)); cf. Souza v. Ellerthorpe, 712 F.2d 1529, 1531
(1st Cir. 1983) (affirming denial of a habeas petition where the
district court found that the trial court's refusal to compel
1
Roszkowski devoted much of his pretrial proffer to
establishing that his participation in the transaction with
Zarrella was a product of government inducement. He reiterates
that line of contention on appeal, stating that his "theory of the
case was that the government entrapped him by using a confidential
informant to get him to engage in an arms transaction with which he
otherwise would never have involved himself." This argument,
however, misses the mark. Roszkowski was neither indicted nor
convicted for his attempted purchase of firearms from Detective
Zarrella; accordingly, he could not have been entrapped into
engaging in an arms transaction for which he was never criminally
charged. See Dávila-Nieves, 670 at 9 (holding that to be entitled
to an entrapment instruction, "a defendant must adduce some hard
evidence that . . . government actors induced him to commit the
charged crime" (emphasis added) (citation and internal quotation
marks omitted)).
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disclosure of a confidential informant did not deny the defendant
a fair trial because any benefit from the informant's testimony
would have been "speculative" and "unlikely to affect the outcome
of the trial").
B. Evidentiary Issues
In his next assignment of error, Roszkowski assails the
admission of two pieces of evidence: (1) Detective Zarrella's
testimony that the appellant discharged his firearm while resisting
arrest; and (2) unredacted excerpts of his audiotaped phone
conversation with Zarrella, in which he inquired about the
availability of hollow-point ammunition. Because Roszkowski did
not contemporaneously object to the admission of this evidence at
trial, our review is for plain error only, United States v. Ríos-
Hernández, 645 F.3d 456, 462 (1st Cir. 2011), which requires him to
show that "(1) an error occurred which was (2) clear or obvious and
which not only (3) affected his substantial rights, but also (4)
seriously impaired the fairness, integrity, or public reputation of
the judicial proceedings," United States v. Savarese,
686 F.3d 1,
12 (1st Cir. 2012). For reasons upon which we elaborate below, we
conclude that the appellant has failed to satisfy this heavy
burden.
1. Detective Zarrella's Testimony
As part of its case-in-chief, the government introduced
the details of the foiled November 6 transaction through the
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testimony of Detective Zarrella. Specifically, Zarrella described
the attempted arrest, the ensuing physical altercation, and
Roszkowski's self-inflicted gunshot wound, in part, as follows:
Zarrella: I had a very good grip on the
Defendant, fortunately. But he was struggling
. . . to get his hands free to gain better
control of the pistol, in my mind. He
couldn't do that because I had my hands on the
pistol; one hand on the pistol, the other hand
on his hands. So there was a struggle for
control of where that weapon was pointed.
. . .
Prosecutor: And during the course of the
struggle, did the Defendant ever give up the
weapon?
Zarrella: The Defendant never relinquished the
weapon.
Prosecutor: Did the Defendant ever comply with
any of your commands?
Zarrella: He did not.
. . .
Prosecutor: And did there come a time when
[the struggle] ceased?
Zarrella: Yes.
Prosecutor: What caused the struggle to cease?
Zarrella: There was a gunshot, which I could
hear and feel, and then I observed a great
deal of blood coming from Mr. Roszkowski, and
he stopped struggling at that point.
Roszkowski now argues, for the first time on appeal, that
Zarrella's testimony concerning the gunshot was merely propensity
evidence, see Fed. R. Evid. 404(b), and that its probative value
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was substantially outweighed by the risk of unfair prejudice, see
Fed. R. Evid. 403. We think not.
It is common ground that evidence of prior bad acts,
including a defendant's antecedent criminal activities, may not be
introduced to prove subsequent "action in conformity therewith."
Fed. R. Evid. 404(b); United States v. Watson, 695 F.3d 159, 165
(1st Cir. 2012). That prohibition, however, typically refers to
evidence that is extrinsic to the crime charged, and is introduced
for the purpose of showing villainous propensity. See, e.g.,
United States v. Epstein,
426 F.3d 431, 438-39 (1st Cir. 2005).
Here, we needn't reach the question of propensity; the fact that
Roszkowski discharged his weapon is intrinsic to its felonious
possession. That is to say, the evidence comprises part and parcel
of the core events undergirding the crime for which he was charged.
Thus, the evidence is not "other acts" evidence at all, and,
accordingly, Rule 404(b) is not implicated. See id.; United States
v. Villarman-Oviedo,
325 F.3d 1, 11 (1st Cir. 2003).
Nor is the testimony excludable, as the appellant
contends, under Rule 403, which permits the exclusion of evidence
whose "probative value is substantially outweighed by the danger of
unfair prejudice." The testimony at issue here was highly
probative. It demonstrated both that the weapon was operable -- a
necessary element of the subject offense, see 18 U.S.C. § 921(a)(3)
-- and that the appellant knowingly possessed the weapon. As well,
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it displayed the chain of events leading to the weapon's recovery
by law enforcement. Although Roszkowski laments the testimony's
prejudicial effect, he makes no showing of unfairness sufficient to
counteract its highly probative value. "The mere fact that
evidence is prejudicial does not trump the need for Rule 403
balancing: 'By design, all evidence is meant to be prejudicial; it
is only unfair prejudice which must be avoided.'" United States v.
Raymond, 697 F.3d 32, 35 (1st Cir. 2012) (quoting United States v.
Rodriguez-Estrada,
877 F.2d 153, 156 (1st Cir. 1989)). Discerning
no unfair prejudice, we cannot conclude that the district court's
admission of this testimony was error, plain or otherwise.
2. Recorded References to Hollow-Point Ammunition
In his second claim of evidentiary error, the appellant
challenges the district court's failure to redact, sua sponte, a
portion of his recorded phone conversation with Detective Zarrella
in which he sought to purchase hollow-point ammunition. More
precisely, the contested colloquy was comprised of the following:
Roszkowski: Also . . . any way I can get
ammunition . . . from you too right now?
Zarrella: Yeah, I can get you . . . all the
ammo you want. The ammo's easy.
. . .
Roszkowski: Yeah, one box of slug and one box
of double ought [sic], and can I have, ah, for
a .9 millimeter, can I have - let me think,
let me think. Just do you have any hollow
points or no?
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Zarrella: I can get you any -- with ammo I can
get you anything you want.
Roszkowski: Okay. Can I have like . . . three
boxes of hollow points.
Zarrella: Okay.
Roszkowski: It's only for house protection,
you know, so --
. . .
Zarrella: All right . . . probably gonna be
around another hundred bucks.
Roszkowski: Okay, that's good.
As with his first evidentiary challenge, Roszkowski rests his
argument on Rules 404(b) and 403. The argument is similarly
unavailing.
As a preliminary matter, the "hollow-point" references
are neither "prior bad acts" nor unduly prejudicial; they are
intrinsic to the narrative of the subject offense, cf. Watson, 695
F.3d at 165-66, and demonstrate the appellant's familiarity with
guns and ammunition, which indicates that he knowingly possessed
the firearm and augments the likelihood that he was cognizant of
its altered serial number.
By contrast, the risk of any unfair prejudice was
minimal. The challenged remarks were brief, and the enhanced
lethality of hollow-point bullets was not suggested by the
government. The government neither explained what a hollow-point
bullet is, nor emphasized the reference to them during the trial.
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See id. at 168 (considering, in reviewing a 404(b)/403 claim for
plain error, whether the government emphasized the challenged
evidence during trial); United States v. Fouche, No. 92-50584,
1993
WL 402937, at *2 (9th Cir. 1993) (finding that testimonial
references to defendant's use of hollow-point bullets were not
unduly prejudicial, in part because the witness "did not testify
about the effects [of] such bullets . . . [or] compare hollow-point
bullets with any other type of bullets"). Moreover, any lingering
untoward effects were almost certainly cured by the trial judge's
instruction that the defendant was being tried only for possessing
the firearm, and for no other conduct. See United States v.
Candelaria-Silva,
166 F.3d 19, 36 (1st Cir. 1999) (holding that
jury instructions are a useful means of allaying potential
prejudice). Thus, though the hollow-point references were perhaps
mildly adverse to Roszkowski, it is not obvious that they were
improperly admitted, if indeed there was any error in their
admission at all.
Even assuming, however, that the district court's failure
to redact the references was an obvious error, the appellant has
not shown that their admission "affected his substantial rights."
Savarese, 686 F.3d at 12. The government's case against Roszkowski
-- which included audio recordings and testimony of several
eyewitnesses, among other evidence -- was overwhelming. Without
more, these isolated remarks do not warrant a new trial.
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C. Constitutionality of 18 U.S.C. §§ 922(g)(1) and 922(k)
Finally, in a quite different claim of error, Roszkowski
posits that 18 U.S.C. §§ 922(g)(1) and 922(k) exceed Congress's
Commerce Clause authority, and are therefore unenforceable -- a
claim which we have repeatedly and unreservedly rejected. See,
e.g., United States v. Joost, 133 F.3d 125, 131 (1st Cir. 1998)
(deeming a Commerce Clause attack on § 922(g) to be "hopeless");
United States v. Diaz-Martinez,
71 F.3d 946, 953 (1st Cir. 1995)
(finding § 922(k) to be a valid exercise of Congress's Commerce
Clause powers). Despite this precedent, Roszkowski argues that, in
light of the Supreme Court's recent decision in National Federation
of Independent Business v. Sebelius,
132 S. Ct. 2566 (2012), we
should revisit the issue. Sebelius is a complex case based on
intricate facts, and it ultimately propounds several holdings.
Despite the difficulty in doing so, we believe it necessary to
explicate, on the most basic level, the scenario that confronted
the Sebelius Court in order to assess the claim asserted here.2
Sebelius involved a constitutional challenge to various
provisions of the Patient Protection and Affordable Care Act ("the
Act"), Pub. L. No. 111-148, 124 Stat. 119 (2010). As part of the
Act, Congress enacted the "individual mandate," which requires
2
We are mindful that, because this claim was not raised
below, our review is for plain error. Savarese, 686 F.3d at 12.
However, we find no merit to this challenge under any standard of
review.
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that, beginning in 2014, non-exempt individuals who fail to
maintain "minimum essential" health care coverage must pay the
government a "shared responsibility payment." See 26 U.S.C.
§§ 5000A(a), (b)(1). Although the Court eventually upheld the
mandate as a valid exercise of Congress's taxing power, the
gravamen of the constitutional challenge was that Congress lacked
the requisite authority to enact the mandate under the Commerce
Clause. In the course of his controlling opinion, Chief Justice
Roberts agreed. The problem, he explained, was that the individual
mandate "does not regulate existing commercial activity[,] [but]
instead compels individuals to become active in commerce by
purchasing a product, on the ground that their failure to do so
affects interstate commerce." 132 S. Ct. at 2587. The Chief
Justice concluded that such a construction of the Commerce Clause
would impermissibly expand its already expansive reach.3
Seizing on what he perceives to be a new constitutional
foothold, Roszkowski urges us to review our own Commerce Clause
jurisprudence, citing the Chief Justice's opinion for the
proposition that the simple possession of a firearm does not
3
We need not, and therefore do not, express our opinion as to
whether the Chief Justice's Commerce Clause discussion was indeed
a holding of the Court. See United States v. Henry, 688 F.3d 637,
641 n.5 (9th Cir. 2012) ("There has been considerable debate about
whether the statements [in Sebelius] about the Commerce Clause are
dicta or binding precedent.").
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constitute commercial activity, and therefore cannot be regulated
by Congress pursuant to the Commerce Clause. We disagree.
Section 922(g)(1) forbids convicted felons from
possessing a firearm "in or affecting commerce," which includes the
possession of a gun that previously traveled interstate, see United
States v. Combs, 555 F.3d 60, 65 (1st Cir. 2009). Similarly,
§ 922(k) prohibits the possession, by any individual, of firearms
with obliterated or altered serial numbers that have, "at any time,
been shipped or transported in interstate or foreign commerce." In
stark contrast to the individual mandate in Sebelius, these
statutes do not "compel[] individuals to become active in
commerce"; rather, they prohibit affirmative conduct that has an
undeniable connection to interstate commerce. See 18 U.S.C.
§ 922(g)(1), (k);
Combs, 555 F.3d at 65-66 (rejecting the argument
that mere possession of a firearm, under 18 U.S.C. § 922(g), has an
insufficient nexus to interstate commerce). The two provisions at
issue reside in the heartland of Congress's authority under the
Commerce Clause: "regulat[ing] the channels and instrumentalities
of interstate commerce, as well as activities that substantially
affect interstate commerce." United States v. Teleguz,
492 F.3d
80, 87 (1st Cir. 2007). Thus, even if Sebelius changed the Supreme
Court's Commerce Clause jurisprudence, it did nothing to undermine
the validity of 18 U.S.C. §§ 922(g)(1) and 922(k). Roszkowski's
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reliance on Sebelius is misplaced, as is, therefore, his
constitutional plaint.
III.
For the foregoing reasons, the convictions are affirmed.
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