United States v. Decicco
370 F.3d 206, 2004 U.S. App. LEXIS 11089, 64 Fed. R. Serv. 557 (2004)
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Rule of Law:
Under Federal Rule of Evidence 404(b), evidence of prior bad acts is admissible if it is offered for a non-propensity purpose, such as proving motive, opportunity, intent, preparation, or a common plan, and its probative value is not substantially outweighed by the danger of unfair prejudice under Rule 403.
Facts:
- In August 1989, Gary P. DeCicco purchased the Heard Street warehouse but was denied a permit to operate his moving business there by the City of Chelsea.
- By September 1991, DeCicco was in arrears on his mortgage, and his lender, Somerset Bank, obtained a foreclosure order on the property.
- DeCicco obtained an insurance policy on the warehouse, but the insurer cancelled it effective March 13, 1992, due to his misrepresentations that the building was occupied.
- On March 11, 1992, just before the insurance policy was cancelled and while DeCicco was facing foreclosure, an intentionally set fire caused minor damage to the warehouse; DeCicco did not file a claim.
- DeCicco hired an accountant, Richard Stewart, who determined that DeCicco owed over one million dollars to the IRS and other tax authorities.
- On May 7, 1995, more than three years after the prior insurance cancellation, DeCicco obtained a new policy from Scottsdale Insurance, falsely claiming the building was a new purchase and had no mortgage.
- On July 9, 1995, a second intentionally set fire occurred but failed to destroy the building. On July 21, 1995, a third fire, set with an accelerant at the support columns like the 1992 fire, successfully destroyed the warehouse.
- DeCicco collected a total of $116,964 in insurance payments from Scottsdale for the final fire.
Procedural Posture:
- The United States government indicted Gary P. DeCicco in the U.S. District Court on four counts of mail fraud and two counts of using fire to commit a felony.
- Before trial, DeCicco filed a motion in limine to exclude evidence related to the 1992 fire and testimony from his accountant, Richard Stewart, about his tax liabilities.
- The district court granted DeCicco's motion, excluding the contested evidence from the government's case-in-chief.
- The government (appellant) appealed the district court's exclusionary ruling to the United States Court of Appeals for the First Circuit; DeCicco is the appellee.
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Issue:
Does a district court abuse its discretion by excluding evidence of a defendant's prior uncharged arson and significant tax debts in a prosecution for arson and mail fraud, where the evidence is offered to prove a common scheme, plan, and motive?
Opinions:
Majority - Torruella, Circuit Judge.
Yes. A district court abuses its discretion by excluding such evidence when it is relevant to a non-propensity purpose and not unduly prejudicial. The court found that evidence of the 1992 fire was admissible under Rule 404(b) to show a common scheme or plan. There was sufficient circumstantial evidence for a jury to conclude DeCicco committed the first arson, and the three-year time gap was explainable by the need to wait before obtaining new insurance without disclosing the prior cancellation. The similarity in method (accelerant at support columns) and target (the same warehouse) demonstrated a progression of acts toward a single goal. Furthermore, the accountant's testimony about DeCicco's massive tax debt was highly relevant to establish a financial motive for committing arson and mail fraud to obtain insurance proceeds. The probative value of this evidence for showing plan and motive was not substantially outweighed by the danger of unfair prejudice under Rule 403.
Analysis:
This decision reaffirms the permissive scope of Federal Rule of Evidence 404(b), allowing prosecutors to introduce evidence of prior bad acts to construct a narrative of the defendant's intent and plan. The court's acceptance of a three-year gap between acts as not too remote, when explained by context, provides flexibility in applying the 'common scheme' doctrine. The ruling also solidifies the principle that evidence of severe financial distress, including uncharged tax crimes, is classic and highly probative motive evidence that is generally admissible so long as it passes the Rule 403 balancing test. This precedent strengthens the prosecution's ability to use circumstantial evidence to prove elements of crimes like arson and fraud.
