The Honorable Jean C. Hamilton, United States District Judge 1

for the Eastern District of Missouri.

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No. 95-3365

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United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* Eastern District of Missouri.

Shirley Mora, *

* 

Appellant. *

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 Submitted: March 12, 1996

 Filed: April 19, 1996

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Before MAGILL, FLOYD R. GIBSON, and HEANEY, Circuit Judges.

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MAGILL, Circuit Judge.

Shirley Mora appeals her conviction on four counts of mail fraud in

violation of 18 U.S.C. §§ 1341 and 1342, arguing that the district court1

abused its discretion in allowing the government to present "other crimes"

evidence. We affirm.

I.

In December 1988, Mora's father passed away, leaving Mora an estate

which included a house on Red Bud Drive in Pacific, Missouri. The house,

valued at $159,000, was insured against fire loss by the Safeco Insurance

Company of America (Safeco). On
 This figure was later increased to $238,556.75. 2

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April 2, 1993, the house was destroyed by fire.

Mora submitted claims to Safeco for the loss of the house and its

contents in the amount of $211,720.75. Safeco denied her claims, and on 2

January 4, 1994, she brought an unsuccessful civil suit against Safeco to

recover her losses.

On February 2, 1994, Mora was indicted by a federal grand jury on

four counts of mail fraud. While the indictment alleged that the fire that

destroyed Mora's house had been set, it did not allege that Mora had set

the fire or caused it to be set, and arson was not directly at issue in any

of the four counts. The indictment did allege that, as part of an

elaborate scheme to defraud Safeco, Mora knowingly made a host of

misrepresentations to Safeco. First, although Mora did not live at the Red

Bud Drive residence, a requirement for coverage under the Safeco policy,

she informed Safeco that she did. To bolster her claim that the fire had

displaced her, Mora also rented a hotel room, and later a temporary

apartment and furniture. Finally, because the Safeco policy further

limited coverage to Mora's personal property, Mora claimed that the

personal property of acquaintances, who were residing at the Red Bud Drive

house, actually belonged to her.

Prior to trial, Mora filed a motion in limine to exclude evidence of

arson, which was denied by the district court. During the course of the

trial, Mora made ongoing objections to evidence regarding the cause of the

fire and her knowledge of the arson. Mora's objections were overruled by

the district court, and the government introduced evidence that the fire

had an incendiary cause, that Mora had experienced financial distress prior

to the arson, creating a motive for fraud, and that Mora had known that
 For example, the government introduced evidence that

3

accelerants had been used at the fire scene, that Mora had lost a

large amount of money on bad investments and had repeatedly tried,

unsuccessfully, to sell the Red Bud Drive property, and that,

immediately before the fire, Mora arranged to fly to Texas to visit

her daughter, stayed several days, and flew back to Missouri

immediately after the fire.

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the arson was to occur. Following a jury trial, Mora was convicted of all 3

four counts of mail fraud, and she was sentenced to twenty-seven months

imprisonment for each count, to run concurrently.

Mora brings this timely appeal, arguing that Federal Rules of

Evidence 403 and 404 should have prevented the government from introducing

evidence of arson and Mora's foreknowledge of the arson, because the

evidence was irrelevant and prejudicial.

II.

We review the district court's admission of other crimes evidence for

abuse of discretion. See United States v. Smith, 49 F.3d 475, 478 (8th

Cir. 1995). The admissibility of other crimes evidence is governed by

Federal Rule of Evidence 404(b), which provides:

Evidence of other crimes, wrongs, or acts is not admissible to

prove the character of a person in order to show action in

conformity therewith. It may, however, be admissible for other

purposes, such as proof of motive, opportunity, intent,

preparation, plan, knowledge, identity, or absence of mistake

or accident . . . .

We have crafted a four-part test to determine if other crimes evidence is

admissible under Rule 404(b). Such evidence is admissible when: (1) the

evidence of the bad act or other crime is relevant to a material issue

raised at trial; (2) the bad act or crime is similar in kind and reasonably

close in time to the crime
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charged; (3) there is sufficient evidence to support a finding by the jury

that the defendant committed the other act or crime; and (4) the potential

prejudice of the evidence does not substantially outweigh its probative

value. United States v. DeAngelo, 13 F.3d 1228, 1231 (8th Cir.), cert.

denied, 114 S. Ct. 2717 (1994); see also United States v. Mejia-Uribe, 75

F.3d 395, 397-98 (8th Cir. 1996); Smith, 49 F.3d at 478. All of these

factors have been met in this case.

A. Relevance

Relevance of evidence "is established by any showing, however slight,

that [the evidence] makes it more or less likely that the defendant

committed the crime in question." United States v. Casares-Cardenas, 14

F.3d 1283, 1287 (8th Cir.) (construing Federal Rule of Evidence 401), cert.

denied, 115 S. Ct. 147 (1994). For a jury to decide if Mora had intended

to "devise [a] scheme or artifice to defraud" her insurance company, 18

U.S.C. § 1341, it is highly relevant whether the fire was a serendipitous

accident, or whether it was a planned event. If Mora knew that the fire

was to take place, her misrepresentations to Safeco were more likely

intentional and part of a coordinated plan, rather than inadvertent,

isolated misstatements.

B. Closeness in time and similarity

Although Mora apparently concedes that the arson and mail fraud

occurred closely together in time, see Appellant's Br. at 18, she asserts

that "the offenses are not similar." Id. For this evidence to be

admissible, however, the prior acts "need not be duplicates of the one for

which the defendant is now being tried," United States v. Lloyd, 71 F.3d

1256, 1265 (7th Cir. 1995) (quotations and emphasis omitted) (evidence that

defendant had been target of assassination attempts relevant to his motive

to possess firearms), because the "admissibility of other crimes evidence
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depends on the nature and purpose of the evidence." Mejia-Uribe, 75 F.3d

at 398. Here, evidence that Mora withheld information about arson from

Safeco is sufficiently similar to the charge that she misrepresented her

claims to Safeco to help prove her intent to defraud, and satisfies this

prong of the test.

C. Sufficient evidence

While conceding that "from the evidence, it was reasonable to

conclude that arson caused the fire," Appellant's Br. at 16, and

complaining that the "sheer voluminosity of [evidence of arson] was

overwhelmingly persuasive and convincing that someone was guilty of the

horrible crime of arson, and that someone was Shirley Mora," Appellant's

Reply Br. at 7, Mora nevertheless argues that "the government did not offer

any evidence which indicated that Appellant participated in the offense of

arson." Appellant's Br. at 17.

Mora was not indicted for the crime of arson, however, and the

government never set out to prove that she was guilty of arson. Rather,

to prove that Mora had committed mail fraud, the government introduced

other crimes evidence that Mora knew that her house was to be destroyed by

arson. For this evidence to be relevant, the government had the burden of

proving, by a preponderance of evidence, that Mora had this foreknowledge

of arson. See Huddleston v. United States, 485 U.S. 681, 690 (1988)

(burden of proof). The government met this burden, most significantly by

introducing evidence that Mora, prior to the arson, had arranged to be in

Texas from March 30, 1993, until April 4, narrowly bracketing the arson

date of April 3. The government's post-arson evidence, showing the extent

to which Mora immediately attempted to misrepresent her losses to Safeco,

also tended to prove a well-developed plan based on foreknowledge of the

arson.
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D. Prejudice

Finally, Mora argues that evidence of arson and her knowledge of

arson was unduly prejudicial, and was inadmissible under both Federal Rules

of Evidence 404(b) and 403. We disagree. This Court has "held that the

jury in a criminal case is entitled to know about the context of a crime

and any events that help explain the context." DeAngelo, 13 F.3d at 1232.

As noted above, the evidence admitted was highly relevant to the context

of Mora's commission of mail fraud. While we agree with Mora that arson

is a "heinous[,] . . . egregious and abhorrent" crime, Appellant's Br. at

22, we do not believe that its unfairly prejudicial impact, if any,

"substantially outweighed" its relevance in this case. See Fed. R. Evid.

403. 

Accordingly, we affirm the judgment of the district court.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.