## Facts

- Gary P. DeCicco owned a two-story brick warehouse in Chelsea, Massachusetts, purchased in 1989 and financed with substantial bank debt.
- The city denied an occupancy permit and later prevented use of the building as a warehouse, leaving DeCicco with a largely unusable asset and mounting financial pressure.
- In October 1991, DeCicco obtained insurance on the warehouse; an inspection found the building was empty despite representations of occupancy.
- In March 1992, a fire occurred at the warehouse about 29 hours before the insurance policy expired; damage was minimal and no insurance claim was filed.
- DeCicco obtained new insurance on the warehouse in May 1995.
- Three fires occurred in 1995, culminating in a July 21, 1995 fire that destroyed the warehouse, injured firefighters, and damaged nearby residences.
- The government alleged DeCicco intentionally set the 1995 fires to obtain approximately $117,000 in insurance proceeds, supporting mail-fraud charges.
- The government sought to introduce (1) evidence of the 1992 fire as proof of plan, intent, and motive, and (2) testimony from DeCicco’s accountant about significant tax liabilities and financial difficulties as motive evidence.
- The district court excluded both categories of evidence pretrial under Rules 404(b) and 403, and the government took an interlocutory appeal.

## Issues

1. Whether evidence of the March 1992 warehouse fire was admissible under Federal Rule of Evidence 404(b) to prove common plan or scheme, intent, motive, or absence of accident regarding the charged 1995 offenses.
2. Whether testimony about DeCicco’s tax liabilities and financial distress was admissible to prove motive, and whether Rule 403 required exclusion for unfair prejudice.

## Decision

- The First Circuit reversed the district court’s exclusion orders and remanded.
- Evidence of the 1992 fire was admissible under Rule 404(b) for non-propensity purposes (including common plan/scheme, intent, and absence of accident) and was not excludable under Rule 403 on this record.
- The accountant’s testimony about tax liabilities and financial pressure was admissible to show motive; exclusion based on the absence of tax charges applied an incorrect legal approach.

## Legal Principles

- Rule 404(b) permits “other acts” evidence when offered for a legitimate non-propensity purpose (e.g., motive, intent, plan, identity, absence of mistake or accident) and when its probative value is not substantially outweighed by Rule 403 dangers.
- Similarity and contextual connection between the other act and the charged conduct (same property, comparable method, insurance context, financial pressure) can support admissibility to show a common plan or scheme rather than character.
- A time gap does not automatically render other-acts evidence inadmissible; courts assess whether the timing meaningfully relates to the government’s theory of relevance.
- Rule 403 excludes evidence only when unfair prejudice substantially outweighs probative value; evidence is not “unfairly prejudicial” merely because it is harmful to the defense.
- Evidence of financial distress, including tax liabilities and debts, is generally admissible to prove motive for alleged profit-driven crimes, even if the financial matters are uncharged.

## Conclusion

The First Circuit held that the district court abused its discretion by excluding evidence of a prior fire at the same insured property and testimony about the defendant’s financial pressures, because both were probative of plan, intent, and motive and were not substantially outweighed by unfair-prejudice concerns under Rule 403.


United States v. DeCicco, 370 F.3d 206 (1st Cir. 2004)