United States v. Roszkowski

• Decision Date: 27 November 2012
• Docket Number: Nos. 11–1455,11–1456.,s. 11–1455
• Citation: 700 F.3d 50
• Parties: UNITED STATES of America, Appellee, v. Arjusz Erik ROSZKOWSKI, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

700 F.3d 50

UNITED STATES of America, Appellee,

v.Arjusz Erik ROSZKOWSKI, Defendant, Appellant.

Nos. 11–1455, 11–1456.

United States Court of Appeals, First Circuit.

Nov. 27, 2012.

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.

Before HOWARD, STAHL and LIPEZ, Circuit Judges.

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, ––– U.S. ––––, 132 S.Ct. 2566, 183 L.Ed.2d 450 (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 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 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, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967); 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 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 a defense of entrapment.¹See 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 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 testimony of Detective Zarrella. Specifically, Zarrella...