dissenting.
I respectfully dissent. I think the district court abused its discretion in excluding evidence of the fire set by T.E.H. The court today concludes that the district court excluded the evidence of the fire set by T.E.H. under Federal Rule of Evidence 403 because the probative value of the evidence was slight. Although the government objected to the evidence based on Federal Rules of Evidence 404(b) and 403, the district court’s ruling could not be more straightforward. The district court excluded the evidence under Rule 404(b), not under 403. The district court stated:
I am going to sustain the Government’s objection to it and not allow it, concluding that it is evidence of other crimes and its only purpose in being put forward, notwithstanding the representations of counsel, is to prove the character of the individual involved in order to show action and conformity therewith. I don’t think it fits any of the other exceptions of intent, preparation, plan, knowledge, et cetera, because I think the fires are entirely different. ...
(T. at 1089).
In excluding the evidence under Rule 404(b), the district court applied Rule 404(b) too broadly. The court faded to recognize any difference between admitting similar acts evidence for offensive and defensive purposes. Specifically, the court ignored the fact that the defendant offered evidence of the similar acts of a third party. “[T]he standard of admissibility when a criminal defendant offers similar acts evidence as a shield need not be as restrictive as when a prosecutor uses such evidence as a sword.” United States v. Aboumoussallem, 726 F.2d 906, 911 (2d Cir.1984); accord United States v. Cohen, 888 F.2d 770, 777 (11th Cir.1989). Several courts have recognized this distinction, concluding that evidence of a third person’s similar acts is not excluded under Rule 404(b) when the defendant is seeking to admit the evidence to prove some fact relevant to his defense. See, e.g., United States v. Blum, 62 F.3d 63, 67-68 (2d Cir.1995) (court abused its discretion in excluding evidence of witness’ personal motive to fabricate evidence); Cohen, 888 F.2d at 775-77 (court erred in excluding evidence that witness had been involved in similar scheme); Aboumoussallem, 726 F.2d at 912 (evidence that defendant’s cousins duped another person into transporting hashish not inadmissible under Rule 404(b)). This result is justified because Rule 404(b) typically applies to exclude evidence that the prosecution seeks to introduce to show the accused committed a crime on another occasion. Fed.R.Evid. 404(b), advisory committee’s note. The reason for excluding prior crimes evidence is the danger that the jury will use the evidence of a prior crime as a basis for inferring that the defendant committed the charged crime. United States v. DeAngelo, 13 F.3d 1228, 1232 (8th Cir.), cert. denied, — U.S. -, 114 S.Ct. 2717, 129 L.Ed.2d 842 (1994). This justification is not implicated when, as here, the defendant offers the evidence to prove some fact relevant to his defense, namely, that someone else may have committed the crime. Flaherty attempted to use evidence *975of T.E.H.’s prior crime to support his defense theory. Thus, there was no danger that the jury would make the improper inference contemplated by Rule 404(b). See Huddleston v. United States, 485 U.S. 681, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988) (discussing admission of similar act evidence).
The court must do a pas de chat to evade the district court’s misapplication of Rule . 404(b), saying that the T.E.H. evidence is of little probative value because Flaherty made a weak offer of proof. The court states that Flaherty’s only evidence of the school locker fire was a dismissed arson charge and a possible eyewitness to the fire. The court also finds the evidence lacking because the fires were not similar.
Flaherty offered, however, a certified copy of the complaint charging T.E.W. with arson in the first degree arising out of the school locker fire as well as the Hennepin County attorney’s file about the incident. This file contains a police report, including witness’ statements, a pretrial evaluation, and a case disposition summary. These documents show that T.E.H.’s arson charge was dismissed in exchange for T.E.H.’s plea of guilty to the lesser included offense of burglary in the second degree.7 That the arson charge was ultimately dismissed has no factual or legal significance in this ease. See Dowling v. United States, 493 U.S. 342, 110 S.Ct. 668, 107 L.Ed.2d 708 (1990) (admitting testimony about an alleged crime that the defendant had been acquitted of committing); United States v. Riley, 684 F.2d 542, 546 (8th Cir.1982), cert. denied, 459 U.S. 1111, 108 S.Ct. 742, 74 L.Ed.2d 962 (1983). Moreover, that the restaurant fires were more sophisticated than the school locker fire does not bolster the court’s ruling today. Flaherty did not offer the evidence of the locker fire to prove T.E.H.’s character or that the fires were similar acts. See Fed.R.Evid. 404(b). Flah-erty offered the evidence to prove the possibility that another person set the fire. See United States v. Perkins, 937 F.2d 1397, 1400 (9th Cir.1991) (defendant entitled to introduce evidence that someone else committed the crime); Blum, 62 F.3d at 68 (motive of third party to commit crime is recognized exception to Rule 404(b)). Besides the locker fire, there was other evidence supporting Flaherty’s theory. There was evidence that T.E.H. was fired from his job at the restaurant and had a long-standing dispute with Flaherty’s son, Brady. T.E.H. went to school with Brady, and had several physical and verbal confrontations with Brady. There was evidence that in addition to threatening Brady, T.E.H. had kicked Brady in the ribs.
As the district court did not base its ruling on Rule 403, it goes without saying that it did not perform the balancing test required by that rule. Although the court today rules the evidence of “slight” probative value, the court fails to balance the value of the evidence with the danger of unfair prejudice as required by Rule 403, if indeed an appellate court could perform this fact-finding function. There has been no articulation of “unfair prejudice.” I do not see how the T.E.H. evidence ‘"would influence the jury to decide the case on an improper basis.” King v. Ahrens, 16 F.3d 265, 269 (8th Cir.1994) (internal citation omitted). In my view, Flaherty should have been able to introduce this evidence to support his defense that someone else started the fire.
The exclusion of the T.E.H. evidence was prejudicial error. See Michigan v. Lucas, 500 U.S. 145, 150-152, 111 S.Ct. 1743, 1747, 114 L.Ed.2d 205 (1991); United States v. Bear Stops, 997 F.2d 451, 454-57 (8th Cir.1993). I would reverse and remand for a new trial.
. Of interest is the fact that T.E.H.’s pretrial evaluation and case disposition documents are dated December 26, 1988, and January 17, 1989. The fires at the restaurant were set December 31, 1988, and January 12, 1989.