370 F.3d 206 (1st Cir. 2004), 03-1686, United States v. Decicco

Docket Nº:03-1686.
Citation:370 F.3d 206
Party Name:UNITED STATES of America, Appellant, v. Gary P. DECICCO, Defendant, Appellee.
Case Date:June 07, 2004
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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370 F.3d 206 (1st Cir. 2004)

UNITED STATES of America, Appellant,


Gary P. DECICCO, Defendant, Appellee.

No. 03-1686.

United States Court of Appeals, First Circuit

June 7, 2004

Heard Jan. 9, 2004.

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[Copyrighted Material Omitted]

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Robert E. Richardson, Assistant United States Attorney, with whom Michael J. Sullivan, United States Attorney, was on brief, for appellant.

Kimberly Homan, with whom Joseph S. Oteri and Oteri & Lawson, P.C., were on brief, for appellee.

Before TORRUELLA, Circuit Judge, LOURIE,[*] Circuit Judge, and HOWARD, Circuit Judge.

TORRUELLA, Circuit Judge.

The government appeals from a pair of orders excluding evidence in the prosecution of Gary P. DeCicco ("DeCicco"). The government indicted DeCicco for four counts of violating 18 U.S.C. § 1341 and two counts of violating 18 U.S.C. §§ 844(h)(1) and (2). The district court excluded evidence related to prior bad acts by DeCicco. After careful review, we reverse.

I. Factual Background

DeCicco purchased a two-story brick warehouse located at 17 Rear Heard Street, in Chelsea, Massachusetts, on August 8, 1989 ("the Heard Street warehouse"). Before securing the mortgage on the Heard Street warehouse, DeCicco applied to the City of Chelsea for an occupancy permit to use the building as a warehouse for his moving companies. The city denied the application, noting that the Heard Street warehouse was surrounded by residential properties and had a narrow driveway to provide access to and from the street. DeCicco used the building as a warehouse, notwithstanding the City of Chelsea's opposition. In the ensuing dispute, the City of Chelsea prevented DeCicco from using the property as a warehouse.

After the permit was denied, DeCicco paid $65,000 for the Heard Street warehouse. The purchase was financed with a $104,000 loan from Somerset Bank, which was secured by a mortgage on the property. As proof of insurance on the property, DeCicco submitted an insurance binder from the John M. Biggio Insurance Agency, signed by Andrew Biggio, and covering the property for the first month that DeCicco owned it.1

DeCicco was in arrears on his mortgage to Somerset Bank by September 1991.

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Somerset Bank obtained a foreclosure order on the Heard Street warehouse. DeCicco had other outstanding obligations to Somerset Bank: a $400,000 loan used to build a new warehouse in Revere, Massachusetts ("the Revere warehouse") and a short-term $80,000 commercial loan. Liens were imposed on both the Heard Street warehouse and the Revere warehouse, as well as on other properties owned by DeCicco's businesses.

In October 1991, two years after purchase, DeCicco obtained insurance on the Heard Street warehouse. Two applications were completed by the broker: a standard form application and an "arson" application. An insurance binder was issued by Lincoln Insurance Company and an expert was retained to examine the property. The inspector never managed to speak with DeCicco, but he visited the property and determined that, contrary to DeCicco's representations that the property was occupied, the Heard Street warehouse was in fact empty. On March 3, 1992, Lincoln Insurance Company cancelled the policy on the Heard Street warehouse due to DeCicco's alleged misrepresentations. A notice advised DeCicco that the policy would be cancelled effective at 12:01 a.m. on March 13, 1992.

In the meantime, Somerset Bank informed DeCicco that he was behind on his payments and that foreclosure proceedings would follow unless the bank received the amount owed by March 2, 1992.

On March 11, 1992, a fire broke out at the Heard Street warehouse. Investigators of the Chelsea Fire Department determined that the fire was started intentionally; the arsonist used a liquid accelerator on the support pillars, in order to bring down the building as quickly as possible. Due to the Fire Department's quick response, little damage was done to the warehouse. DeCicco did not file a claim related to this fire and a period of three years and two months transpired during which the Heard Street warehouse went uninsured.

In the meantime, DeCicco hired Richard Stewart ("Stewart"), an accountant. Stewart was allegedly retained because DeCicco had significant tax liabilities and wanted to institute sound bookkeeping practices for his businesses. Regardless, it is undisputed that DeCicco owed more than one million dollars to the Internal Revenue Service ("IRS") and other monies to the Massachusetts Department of Revenue ("DOR").2 DeCicco also owed over $10,000 in real estate taxes to the City of Chelsea and an undisclosed amount to the City of Revere.

On May 7, 1995, Scottsdale Insurance Company ("Scottsdale") issued an insurance policy for the Heard Street warehouse, listing DeCicco as the beneficiary. DeCicco told the Scottsdale agent that the building was a new purchase, even though DeCicco had owned it for nearly six years. He also told the Scottsdale agent that there was no mortgage on the property. The policy was for a one-year term and provided coverage of up to $125,000.

On July 9, 1995, the Heard Street warehouse was intentionally set on fire by means of four separate fires started on the second floor. The Fire Department again responded quickly and the property was spared. DeCicco hired an insurance adjustor to assist him in filing an insurance claim, but that claim was never filed.

During the early morning hours of July 21, 1995, a third fire broke out in the Heard Street warehouse. Investigators

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determined that the fire was set with an accelerant poured at the base of the support columns. The third time proved to be the last. This time, a much larger fire injured several firefighters as well as some surrounding residential property. Per the City of Chelsea's order, the Heard Street warehouse was demolished because the damage was too extensive.

DeCicco obtained payments for the third fire from Scottsdale, for a total aggregate amount of $116,964.

The government alleges that, in violation of 18 U.S.C. § 1341, DeCicco transmitted false and fraudulent...

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