UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
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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 
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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 
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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.
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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