UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4040
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RICHARD ANTHONY KAMINSKY,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Catherine C. Eagles,
District Judge. (1:11-cr-00162-CCE-1)
Submitted: August 30, 2012 Decided: September 13, 2012
Before GREGORY, SHEDD, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Louis C. Allen III, Federal Public Defender, William S.
Trivette, Assistant Federal Public Defender, Greensboro, North
Carolina, for Appellant. Ripley Rand, United States Attorney,
Robert A. J. Lang, Assistant United States Attorney, Sarah
Boshears, Third Year Law Student, Winston-Salem, North Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
A jury convicted Richard Anthony Kaminsky of two
counts of making a false statement on a firearms transaction
record, in violation of 18 U.S.C. § 922(a)(6) (2006) (Counts One
and Two), and one count of possession of a firearm by a
prohibited person, 18 U.S.C. § 922(g)(4) (2006) (Count Three).
The district court sentenced Kaminsky to twenty-eight months’
imprisonment, and he appeals. Finding no error, we affirm.
Kaminsky alleges that the district court’s admission
of certain evidence relating to his mental health, finances, and
prior litigation violated Federal Rules of Evidence 403 and
404(b). We review the admission of evidence for abuse of
discretion. United States v. Forrest, 429 F.3d 73, 79 (4th Cir.
2005).
Under Federal Rule of Evidence 404(b), “[e]vidence of
a crime, wrong, or other act is not admissible to prove a
person’s character in order to show” that his actions on a
particular occasion conformed to that character. Fed. R. Evid.
404(b)(1). Such evidence “may be admissible for another
purpose, such as proving . . . intent, . . . knowledge,
identity, absence of mistake, or lack of accident.” Rule
404(b)(2). Further, “[t]o be admissible under Rule 404(b),
evidence must be (1) relevant to an issue other than character;
(2) necessary; and (3) reliable.” United States v. Siegel, 536
2
F.3d 306, 317 (4th Cir. 2008) (internal quotation marks
omitted). “Rule 404(b) is . . . an inclusive rule, admitting
all evidence of other crimes or acts except that which tends to
prove only criminal disposition.” United States v. Young, 248
F.3d 260, 271-72 (4th Cir. 2001) (internal quotation marks
omitted).
Evidence sought to be admitted under Rule 404(b) must
also satisfy Federal Rule of Evidence 403, Siegel, 536 F.3d at
319, so that its probative value is not substantially outweighed
by its prejudicial value. United States v. Queen, 132 F.3d 991,
995 (4th Cir. 1997). Under Rule 403, “damage to a defendant’s
case is not a basis for excluding probative evidence” because
“[e]vidence that is highly probative invariably will be
prejudicial to the defense.” United States v. Grimmond, 137
F.3d 823, 833 (4th Cir. 1998). Rule 403 requires exclusion of
evidence only where the trial judge perceives “a genuine risk
that the emotions of the jury will be excited to irrational
behavior” disproportionate to the value of the proffered
evidence. United States v. Mohr, 318 F.3d 613, 618 (4th Cir.
2003) (internal quotation marks omitted).
We have reviewed the record and conclude that the
district court did not abuse its discretion in admitting the
challenged evidence pursuant to Rules 403 and 404(b). This
evidence was relevant and reliable, and bore little or no risk
3
of exciting the jury to irrational behavior. Therefore, this
claim fails.
Kaminsky next challenges the sufficiency of the
evidence supporting his convictions on Counts One and Two. We
review a challenge to the sufficiency of evidence de novo.
United States v. Roe, 606 F.3d 180, 186 (4th Cir. 2010). We are
obliged to sustain a guilty verdict that is supported by
substantial evidence, viewing the evidence in the light most
favorable to the Government. United States v. Osborne, 514 F.3d
377, 385 (4th Cir. 2008). Substantial evidence is such evidence
that a reasonable fact-finder could accept as adequate to
support a finding of guilt beyond a reasonable doubt. United
States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (en banc).
A defendant bringing a sufficiency challenge bears a
“heavy burden.” United States v. Young, 609 F.3d 348, 355 (4th
Cir. 2010). In evaluating evidentiary sufficiency, we do not
review the credibility of witnesses, and we assume the jury
resolved all contradictions in the testimony in the Government’s
favor. United States v. Foster, 507 F.3d 233, 245 (4th Cir.
2007). Section 922(g) prohibits one who “has been committed to
a mental institution” from possessing a firearm. 18 U.S.C.
§ 922(g)(4). We have reviewed the record and conclude that the
evidence was sufficient to support each element of Kaminsky’s
convictions.
4
Finally, Kaminsky asserts that his conviction for
violating § 922(g)(4) exceeded Congress’s authority under the
Commerce Clause because the firearms at issue in his case lacked
a sufficient nexus with interstate commerce. Although Kaminsky
concedes that this argument is foreclosed by our holding in
United States v. Gallimore, 247 F.3d 134 (4th Cir. 2001), he
questions Gallimore’s validity in light of the United States
Supreme Court’s holdings in United States v. Morrison, 529 U.S.
598 (2000), Jones v. United States, 529 U.S. 848 (2000), and
United State v. Lopez, 514 U.S. 549 (1995).
We decided Gallimore in the wake of Jones, Lopez, and
Morrison. Moreover, one panel of this court may not overrule
the precedent set by a prior panel. United States v. Rivers,
595 F.3d 558, 564 n.3 (4th Cir. 2010). Thus, this claim lacks
merit.
Accordingly, we affirm the district court’s judgment.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument will not aid the decisional process.
AFFIRMED
5