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. See Vasco, 564 F.3d at 18. Indeed, 1

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

Roszkowski devoted much of his pretrial proffer to 1

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. RíosHernández, 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

We are mindful that, because this claim was not raised

2

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

We need not, and therefore do not, express our opinion as to 3

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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