

December 29, 1994     [NOT FOR PUBLICATION]                                [NOT FOR PUBLICATION]

                  UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT
                                           

Nos. 93-1877
     93-1878
     93-1879
     93-1880
     93-1881
     93-2209
     93-2300

                  AETNA CASUALTY SURETY COMPANY,

                      Plaintiff - Appellee,

                                v.

                      P&amp;B AUTOBODY, ET AL.,

                     Defendants - Appellees.

                                           

               ARSENAL AUTO REPAIRS, INC., ET AL.,

                     Defendants - Appellants.

                                           

No. 93-1903

                  AETNA CASUALTY SURETY COMPANY,

                      Plaintiff - Appellee,

                                v.

                     RODCO AUTOBODY, ET AL.,

                     Defendants - Appellees.

                                           

                       BETTY ARHAGGELIDIS,

                      Defendant - Appellant.

                                           

No. 93-2257

                  AETNA CASUALTY SURETY COMPANY,

                      Plaintiff - Appellee,

                                v.

                      P&amp;B AUTOBODY, ET AL.,

                     Defendants - Appellees.

                                           

                       BETTY ARHAGGELIDIS,

                            Appellant.

                                           

          APPEALS FROM THE UNITED STATES DISTRICT COURT

                FOR THE DISTRICT OF MASSACHUSETTS

           [Hon. William G. Young, U.S. District Judge]                                                                

                                           

                              Before

                     Torruella, Chief Judge,                                                     

                      Boudin, Circuit Judge,                                                     

                   and Keeton,* District Judge.                                                        

                                           

     William  F. Spallina, with whom Carol A. Molloy was on brief                                                              
for defendants Arsenal Auto Repairs, Inc., et al.
     Kenneth R.  Berman, with whom  David A. Guberman  and Sherin                                                                           
and Lodgen, were on brief for defendant Jack Markarian.                    
     James  P. Duggan,  Alfred E.  Nugent, John  G.  Lamb, Flynn,                                                                           
Hardy  &amp; Cohn, Giovano Ferro II, Ferro, Feeney, Patten &amp; Galante,                                                                          
Daniel  T. Sheehan, Ralph  Stein, Edward  G. Ryan,  Ahmad Samadi,                                                                          
Joseph  S. Carter, William D. Crowe, Crowe, Crowe &amp; Vernaglia and                                                                       
Abdullah Swei for defendants P Autobody, et al.                       

                                                  

*  Of the District of Massachusetts, sitting by designation.

     David S. Douglas  and David  O. Brink, with  whom Howard  S.                                                                           
Veisz,  Kornstein Veisz  &amp; Wexler,  Glenda H.  Ganem and  Smith &amp;                                                                           
Brink, were  on brief  for plaintiff-appellee Aetna  Casualty and               
Surety Company.

                                           

                                           

                               -3-

          KEETON, District Judge.   This case concerns an alleged                                          

widespread  fraudulent  scheme,  involving  five  automobile body

shops and two  insurance claims  adjusters.  The  purpose of  the

scheme was to obtain payments on fraudulent insurance claims.  

          Seven  appellants,  defendants  in  the   trial  court,

challenge on  numerous grounds the final judgment entered after a

jury  trial.   The  judgment was  for  Aetna Casualty  and Surety

Company ("Aetna") against

          (a)  Betty   Arhaggelidis  on   the  theory   of  civil

conspiracy in  the sum of $373,857.28 plus  interest from October

2, 1989 to the date of entry of judgment;

          (b)  the  Tirinkians  and  the  Markarians  (the   five

individual "Arsenal defendants") for $3,859,901.72 (consisting of

damages of  $789,967.24 trebled to $2,359,901.72  under 18 U.S.C.

  1962(c)  and 1962(d)  of the  Racketeer Influenced  and Corrupt

Organizations  Act ("RICO"),  and costs,  expenses, disbursements

and attorneys' fees  of $1,500,000.00) together with  prejudgment

interest from October 2, 1989 to the date of entry of judgment;

          (c) three  of the Arsenal  defendants (Zareh Tirinkian,

Peter  Markarian,   and  Jack  Markarian)  for   a  separate  and

irreducible penalty of $1,579,934.48 under Mass. Gen. L.  ch. 93A

in addition to the amount set forth in (b); and

          (d)  Arsenal Auto  Repairs,  Inc.  ("Arsenal Auto"),  a

separate defendant in the action, for the sum of $789,967.24 on a

claim of civil conspiracy  plus interest from October 2,  1989 to

the date of entry of judgment.

                               -4-

          For the reasons that follow,1 we affirm.

                         I.   BACKGROUND                                   I.   BACKGROUND

          We  begin this Opinion with  a summary of  facts as the

jury might  have found them;  we view  the evidence in  the light

most favorable to  the verdicts.   See United  States v.  Rivera-                                                                           

Santiago, 872 F.2d  1073, 1078-79 (1st  Cir.), cert. denied,  492                                                                     

U.S. 910, (1989).

          One of  the body  shops, Rodco/P&amp;B Autobody,  was owned

and  operated  by  defendant  Petros Arhaggelidis,  who  has  not

appealed  the judgment  against  him.    He  is  the  husband  of

appellant  Betty Arhaggelidis.  She was the owner of two Mercedes

upon which six fraudulent claims were made to Aetna.

          Another  of  the  body  shops, Arsenal  Auto  (also  an

appellant in  this action), was  owned and operated  by appellant

Zareh Tirinkian.  His wife, Lena Tirinkian, and her brothers John

Markarian  and Peter  Markarian  were employees  of Arsenal  Auto

during the period of the alleged fraudulent scheme.

          Tarja Markarian  and her husband  Peter Markarian  were

the co-owners of a Mercedes upon which two fraudulent claims were

made to Aetna.

          From  1987 to  1989, the  Arsenal defendants,  together
                                                  

1   The  published  version of  this  Opinion includes  only  the
background statement  of facts (Part  I) and discussion  of those
issues  that  may  be  of   general  interest  (Parts  II-IX  and
Conclusion).  The remaining portions of the Opinion (Parts X-XIV)
contain a detailed explanation of the sufficiency of the evidence
to support the jury findings and address other issues that do not
appear to have precedential importance.  See First Cir. R. 36.2.                                                      

                               -5-

with   employees  and   friends,  submitted   sixteen  fraudulent

insurance claims  to Aetna  involving luxury automobiles.   Aetna

paid  $137,346.83 on these claims.   The Arsenal defendants filed

at least  ten additional  fraudulent claims with  other insurance

companies on the same group of  cars.  The Tirinkians submitted a

total of  fifteen fraudulent claims  (seven to Aetna)  upon which

either Lena or Tareh  Tirinkian was the claimant or  the insured.

Peter and  Tarja Markarian submitted four  fraudulent claims (two

to Aetna) on their Mercedes.  John Markarian, who filed no claims

in his own name, was the  supervisor of repairs at Arsenal  Auto,

where most of  the cars  involved in the  fraudulent claims  were

stored and purportedly repaired.

          Timothy Cummings and Steven Dexter were two of the many

Aetna  appraisers who covered the area where Arsenal Auto and the

other body shops were located.  Either Cummings or Dexter did the

appraisal  for  ten of  the  sixteen fraudulent  claims  that the

Arsenal  defendants  (personally  or  in cooperation  with  their

friends)  filed  over a  three-year  period  commencing in  1987.

Cummings  and  Dexter  submitted  false appraisals  to  help  the

Arsenal defendants defraud Aetna.

          In the district court,  judgment was entered by default

against Cummings and Dexter under RICO for $789,967.24 (being the

amount paid out  by Aetna  on 112 insurance  claims submitted  to

Aetna  that  the  jury   found  to  be  fraudulent)  trebled   to

$2,359,901.72 plus interest at 12% per annum from October 2, 1989

on the  trebled amount, plus $1,500,000  in costs, disbursements,

                               -6-

and attorneys' fees.

          For  each of  the  sixteen  fraudulent claims  directly

involving  the  Arsenal defendants  and friends  cooperating with

them, Aetna, in accordance  with its business practices, required

a completed work form to be submitted by the claimant.  At trial,

the  Arsenal defendants  did not  provide any  documentation that

Arsenal  Auto or  any other  autobody shop  completed any  of the

repairs in  connection with any of  the claims.  With  respect to

some claims, the evidence shows  that the claimed accidents never

occurred; in  other cases,  the claimed damage  was intentionally

inflicted.  The jury  may have supportably inferred that  in some

cases defective parts were placed on the cars for the purpose  of

appraisal and then later replaced with the original parts.

          The  jury found  that  each of  the individual  Arsenal

defendants  was liable  for  a substantive  RICO violation  under

 1962(c)  for  participating in  the affairs  of Aetna  through a

pattern of racketeering activity.  The jury also found all of the

individual  Arsenal defendants liable,  under  1962(d),  for RICO

conspiracy  with the  adjusters and the  operators of  other body

shops  (not including Betty Arhaggelidis).

          The judgment against the  Arsenal defendants was in the

same amount, and on  the same calculus, as that  against Cummings

and Dexter, explained above.

          Appellant  Betty Arhaggelidis  was associated  with the

fraudulent  scheme through  her husband,  the owner  of Rodco/P&amp;B

Autobody, one  of  the  five  autobody  shops  involved.    Betty

                               -7-

Arhaggelidis owned  two Mercedes, one of which  was registered in

her  mother's  name.   These two  Mercedes  were involved  in six

fraudulent claims, as to all of which Cummings did the appraisal.

 The  jury found that she  was liable under  a "civil conspiracy"

theory  centered around  Rodco/P&amp;B  Autobody, and  therefore  was

liable in connection with thirty-seven fraudulent claims.

          The  appellants challenge the judgments entered against

them  on  a variety  of grounds.    In addition,  each appellant,

except  for  Arsenal Auto  Repairs,  Inc.,  appeals the  district

court's  denial of his or her motion  for judgment as a matter of

law because of insufficiency of the evidence.

          First  we   consider  the  issues   arising  from   the

relationships  among the  RICO  counts and  the civil  conspiracy

count, then we consider other issues raised by one or more of the

appellants.

     II.  RELATIONSHIPS AMONG COUNTS OF THE AMENDED COMPLAINT               II.  RELATIONSHIPS AMONG COUNTS OF THE AMENDED COMPLAINT

          Appellants,  at various points,  both in  oral argument

and in briefs before this court,  have seemed to suggest that the

judgment against them in  this case is somehow flawed  because of

some  aspect of  the relationships  among the  different theories

alleged and tried before  the jury.  We address  specific aspects

of this suggestion in Part III, infra.  We address the suggestion                                               

more broadly here.

          The district court  considered five different  theories

(asserted in  five different  counts) that are  relevant to  this

                               -8-

inquiry:  three claims of RICO substantive violations, one  claim

of RICO conspiracy, and one non-RICO conspiracy claim.

               First.  Count  VII, a RICO substantive                              
            violation  under    1962(c)  alleging  an
            association-in-fact  enterprise.     This
            theory was dismissed from the case in the
            trial court.

               Second.      Count   VIII,    a   RICO                               
            substantive   violation  under    1962(c)
            alleging  Aetna as  the enterprise.   The
            jury  found that  this  claim was  proved
            against     all    individual     Arsenal
            appellants.

               Third.   Count VI,  a RICO substantive                              
            violation   under    1962(c),    alleging
            Arsenal Auto as the enterprise.  The jury
            found that this claim was  proved against
            all individual Arsenal appellants.

               Fourth.   Count  IX, alleging  a  RICO                                
            conspiracy  under   1962(d).    The  jury
            found that this  claim was proved against
            all individual Arsenal appellants.

               Fifth.    Count  X, common  law  civil                              
            conspiracy.   The  jury found  that  this
            claim   was   proved   against  all   the
            appellants,  including  Arsenal Auto  and
            Arhaggelidis.

          The judgment against  the individual Arsenal appellants

jointly and severally in the amount of $2,359,901.72 is supported

by  the  jury's  finding of  liability  on  Counts  VIII and  IX.

Therefore,  if we determine that either the finding on Count VIII                                                 

or  that on  Count IX  is supported  by sufficient  evidence, the

judgment must  stand.  In fact, as we explain below, we find that

the  evidence was  sufficient  for the  jury  reasonably to  find

liability on both Count VIII (the RICO substantive violation with                           

Aetna as the enterprise) and Count IX (the RICO conspiracy).

                               -9-

          The Arsenal appellants do not challenge the sufficiency

of the evidence in  support of the jury's finding of liability on

Count VI or  on Count X.  The only  argument raised by appellants

with respect  to  Count  VI is  an  argument  regarding  pleading

deficiency  that  we have  rejected  as  wholly without  support.

Moreover, because  we have  determined that the  judgment against

the individual  Arsenal appellants is supported  by jury findings

on Count VIII and Count IX, we have no reason to consider whether

appellants are independently  liable under Count VI,  Count X, or

both.

          The  judgment against Arsenal  Auto Repairs, Inc. which

is also an  appellant in this action, is  supported by the jury's

finding of  liability on  Count X,  the civil conspiracy  theory.

Arsenal Auto has not challenged  the sufficiency of the  evidence

supporting the jury's finding with respect to its liability under

Count X.   The judgment against Arsenal Auto is  affirmed for the

reasons stated in other parts of this Opinion.

          The   judgment   against   appellant  Arhaggelidis   is

supported  by the  jury's finding  of liability  on Count  X, the

civil  conspiracy theory.    We conclude  that  the evidence  was

sufficient to support the  jury's finding against Arhaggelidis on

Count X.

          From this summary, it is clear that  one of appellants'

assertions  is  true:    the  relationships  among  transactions,

defendants,  and  legal  claims  are  complex  both  legally  and

factually.   A question remains,  however, as to  how, if at all,

                               -10-

any of those complexities or all of them taken together bear upon

any of the issues before this court on appeal.

          Nowhere in the trial record, or in their  briefs before

this court, except in  a passage from their brief  that is quoted

in  Part III, infra, and  an argument that  the consolidated case                             

was too  complex for a  jury to understand, App.  Brief at 59-61,

did the appellants ever  clearly formulate an argument or  set of

arguments based upon their hints and innuendos about complexity.

          Nevertheless, we have read  with special care all parts

of the briefs containing such hints or suggestions.  We have done

so,  first, to  be certain  we have  not overlooked  any argument

presented  and, second, to assure that we have taken into account

any cited cases that  might bear upon the  issues presented by  a

fact pattern  as  complex as  that before  us, with  interlocking

personal, family, and institutional relationships.

          Entirely apart  from the complexities added  by RICO, a

risk of confusion has long existed because of relationships among

different legal and factual theories  of conspiracy that might be

invoked by the parties or  by a court.  The law bearing  upon the

potential   consequences  of   invoking  different   theories  of

conspiracy is  more extensively developed in  criminal cases than

in  civil.  Even with  respect to the  criminal context, however,

relevant statutes  and precedents  provide only  limited guidance

for structuring factual and legal analysis.

          In criminal  cases, issues arise often  with respect to

whether a case should be viewed as one involving:

                               -11-

          (1)  a  single  conspiracy of  many  parties,  multiple

objectives, and broad sweep;

          (2) multiple independent conspiracies; or

          (3)  a  nest  of  interlocking  conspiracies  that  may

involve  overlapping  conspiracies  or  smaller,  discrete  inner

conspiracies  of fewer persons and smaller scope that are tied in

with a larger conspiracy  whose members include some but  not all

of the members of the discrete inner conspiracies.

            See, e.g., United States v. Glenn, 828 F.2d                                                       
          855 (1st Cir. 1987).

One  result of  this  range of  possible  interpretations of  the

evidence in a particular case is that a question concerning legal

theory and  arguments based upon it,  and concerning instructions

explaining the law to the jury, is difficult and "is probably not

susceptible to an abstract answer unrelated to context."

            United  States v. Oreto,  No. 91-1769, slip                                             
          op. at 19 (1st Cir. Oct. 4, 1994).

          The persons  alleged to be RICO  conspirators and civil

conspirators in the present case, like those charged under a non-

RICO conspiracy theory in Oreto                                         

            have engaged in a series  of transactions
            that could be viewed as a set of separate
            conspiracies,  or one  overall conspiracy
            embracing numerous wrongful transactions,
            or .  . . both an  overarching conspiracy
            and   a   nest   of  underlying   smaller
            conspiracies.   Partly this  is a problem
            of  proof  and   inference;  partly   the
            problem  arises  from  trying to  squeeze
            into  the  conceptual  cubbyhole  of  "an
            agreement"  activities  that in  practice
            often have the  more shapeless  character
            of    an    evolving    joint    criminal
            enterprise.

                               -12-

            Id.  at  20  (citations  and  reference  to                         
          double jeopardy omitted);
            see also  United  States v.  Sep lveda,  15                                                            
          F.3d  1161, 1191  (1st Cir. 1993),  114 S.Ct.
          2714    (1994)("[T]he     fact    that    the
          organization's  methods  and tactics  evolved
          over time  did not dictate a  finding of two,
          three, or four separate conspiracies.").

          In a  criminal context, the prosecutor  is allowed some

choice  of  theory,  though  the  choice  may  be  burdened  with

consequences,  including  those incident  to  the  law of  double

jeopardy.

          In a  civil context,  likewise, parties may  be allowed

some choice  of theory.   But  the choice,  in the  civil context

also, may  be burdened with  consequences -- a point  to which we

return below.

          In this  case, added  layers of complexity  incident to

relationships  among  theories exist,  not  only  because of  the

relationships  between different  conspiracy  counts --  Count IX

(RICO  conspiracy) and  Count  X (civil  conspiracy) --  but also

because of the  relationships among these  counts and the  counts

alleging  RICO  substantive  violations (Counts  VII  and  VIII).

Also, as in criminal  cases, see, e.g., Oreto, No.  91-1769, slip                                                       

op.  at 19, an answer as to  what significance, if any, the legal

and factual theories may have, must be context sensitive.

          Because procedural law allows  alternative contentions,

parties to  a civil action involving such an array of factual and

legal  theories as  this case  presents may  be allowed  to defer

choice at least  until late  stages of proceedings  in the  trial

court.   For example, both  plaintiffs and defendants  in a civil

                               -13-

case may be allowed to maintain alternative contentions at  least

until the evidence  is closed,  when the court  may require  some

choices  to be  made about  the  form of  verdict to  be used  in

submitting the case to the jury -- see Fed.  R. Civ. P. 49 -- and                                                

about instructions  to the jury.   When a party does  not request

either  a  "special  question"  or an  instruction  submitting  a

particular theory of conspiracy  to the jury, that party  makes a

choice that  has the  associated consequence of  almost certainly

precluding the assertion  after verdict of the  omitted theory of

conspiracy.   See,  e.g.,  Fed.  R.  Civ.  P. 49.    The  law  (a                           

procedural  rule, in  this instance)  allows choice,  but it  may

limit  the scope  of  choice by  defining  consequences that  are

attached  to each of the  available options, rather than allowing

complete  freedom of choice.   A  party making  a choice  of this

kind, among legally defined options only, is making an "election"

in the classic sense.  See John S. Ewart, Waiver  or Election, 29                                                                       

Harv. L. Rev. 724 (1916).

          Of  course, a  trial  court may  in some  circumstances

allow  submission to  a  jury  of  two  or  more  theories,  with

appropriate instructions explaining as to each theory the factual

elements the jury must  find to return a verdict  sustaining that

theory.   The  different  theories submitted  to  a jury  may  be

factually  compatible  --  that  is,   a  verdict  sustaining all

theories  submitted  may  be  permissible.   Also,  however,  the

evidence and the different theories of  conspiracy submitted to a

jury in a particular  case may be so factually  incompatible that

                               -14-

the  jury's choice is  limited to finding  one or another  of the

theories supported, but not all.

          In the present case, the trial judge, in submitting the

case to the jury, used a verdict form that at  first glance might

appear  to  be  a  submission  on  "special questions,"  with  no

"general  verdict,"   under  Fed.  R.  Civ.  P.  49(a).    Closer

examination,  however, of both the verdict form and the record of

colloquies about  it, discloses  that the court  required only  a

general verdict of  the jury, under Fed. R. Civ.  P. 49(b), as to

each claim  against each  defendant, after elimination  of claims

that were alleged but  as to which either the court  rejected the

claim  as a  matter  of law  (the association-in-fact  conspiracy

theory  alleged in  Count VII) or  Aetna elected  not  to request

submission to the jury.

          The  submission of  a separate  question requiring  the

jury to report  an answer as to  each of at least 122  of the 176

allegedly  fraudulent  claims  was  necessary   because  disputed

factual issues were presented not only with respect to whether an

alleged  RICO   conspiracy  and  the   alleged  RICO  substantive

violations existed, and, if so, what defendants were liable under

each  theory,  but  also with  respect  to  whether  each of  the

transactions  was   within  the   scope  of  the   conspiracy  or

substantive violation.  The  answers have a bearing on  the terms

of  the judgment  to  be entered,  even  though the  trial  judge

determined  (supportably,  we  have  concluded)  that no  genuine

dispute of fact existed as to the amount paid by Aetna on each of

                               -15-

the 112 claims the jury found to be fraudulent.

          In summary, we conclude  that the verdicts and judgment

for  plaintiff  against  the  appellants  are  supported  by  the

evidence received in this case, and by law.

                    III.  SUFFICIENCY OF PROOF                              III.  SUFFICIENCY OF PROOF

          A.   Standard of Review                                           

          Appellants challenge the sufficiency of the evidence to

support the judgment entered  against them.  They argue  that the

district court should have granted their motions  for judgment as

a matter of law.

          The district court may grant a motion for judgment as a

matter  of  law only  if, after  examining  the evidence  and all

reasonable inferences  therefrom "in the light  most favorable to

the  nonmovant," it  determines that "the  evidence could  lead a

reasonable  person  to only  one  conclusion,"  favorable to  the

movant.     Gallagher v. Wilton Enterprises,  Inc., 962                                                            
          F.2d   120,   124  (1st   Cir.  1992)(quoting
          Hendricks &amp; Associates, Inc. v. Daewoo Corp.,                                                                
          923 F.2d 209, 215 (1st Cir. 1991)).

A denial of  judgment as a  matter of law  is "reviewed de  novo,                                                                          

which means that  we use the same  stringent decisional standards

that control the district court."  Id. at 125.                                                

          With respect to the five individual Arsenal defendants,

appellee argues that the judgment in the  amount of $2,369,901.72

is supported,  independently, by  each of  two  jury findings  --

first,  the finding  that all  individual Arsenal  defendants are

liable  on a theory of  RICO substantive violation  with Aetna as

                               -16-

the  enterprise  under  1962(c)  (Count  VIII)  and, second,  the

finding that  all individual Arsenal  defendants are liable  on a

theory of  RICO  conspiracy  under   1962(d) (Count  IX).    With

respect to defendant Betty Arhaggelidis, the appellee argues that

the judgment in  the amount  of $373,857.28 is  supported by  the

jury finding that she was liable on a theory of civil conspiracy.

We examine the evidence supporting each of these theories against

each defendant in Parts III.C, III.D, and III.E, infra.                                                                

          B.   Appellants'  Preclusion  Argument  Based   on  the                                                                           

Relationship of Count VII to Other Counts                                                   

          The appellants challenge the district court's denial of

their motion for  judgment as a matter of law  on Count VIII, the

RICO  substantive charge  alleging Aetna  as the  enterprise, and

Count IX, the RICO conspiracy charge.  They contend that once the

district  court  granted defendants'  motion  for  judgment as  a

matter  of  law  on Count  VII  (the  RICO substantive  violation

alleging   an   association-in-fact   enterprise  including   all

defendants),  the  district  court  should  have  granted,  also,

defendants' motion for judgment as a matter of law on Counts VIII

and  IX.  (This  argument was not  made in the  trial court as to

defendants' motion for judgment as a  matter of law on Count  VI,

nor is it asserted on appeal.  Count VI, alleging Arsenal Auto as

the enterprise, alleges  a scheme  of a smaller  scope than  that

alleged in Count VII.   Thus, no plausible  argument can be  made

that the court's dismissal of Count VII requires the dismissal of

Count VI.)

                               -17-

          Appellants do  not clearly state the  legal premises of

their  preclusion argument.   Reading  generously to  appellants,

however, to assure that we address any contention that might even

plausibly be presented,  we infer that some asserted principle of

preclusion is  at least  implicitly if not  explicitly suggested.

For example, appellants say:

               The trial judge's  ruling directing  a
            verdict for  all Defendants on  Count VII
            of  the  Complaint,  because   there  was
            "insufficient  evidence to  sustain Count
            7,    an   overall    association-in-fact
            enterprise,"  (App. 4092),  separated the
            Arsenal   Defendants   from   the   other
            Defendants  in  the   case  and   thereby
            disassociated  [sic]  the actions  of the
            Allston   Group  from  the  acts  of  the
            Arsenal   Defendants.       Without   the
            association-in-fact  enterprise  to  meld
            the acts of  the various Defendants  into
            an overall conspiracy,  the link  between
            the  Arsenal  Defendants and  the Allston
            Group was severed  thereby absolving  the
            Arsenal  Defendants  from any  wrongdoing
            concerning  bribery.  As  such, the trial
            judge's ruling,  by implication, absolved
            the Arsenal Defendants  from bearing  the
            burden of the Allston Group's bribery.

Appellants' Brief at 41-42.

          It  is true  that  each of  Counts  VII, VIII,  and  IX

alleges a  fraudulent scheme  that includes  all the  body shops.

These three theories have the same "scope" in the sense that each

of them would support the judgment against the Arsenal individual

defendants in  the amount  of $2,369,901.72.   Nevertheless, each

count  asserts a  distinctive  theory,  and  none  of  the  three

theories has  all  of the  elements of  any other  of the  three.

Counts  VII and  VIII  allege RICO  substantive violations  under

                               -18-

 1962(c),  but  the  entities   alleged  as  the  enterprise  are

different.  In contrast to these substantive violations, Count IX                                                      

alleges a RICO conspiracy under  1962(d).                                   

          Since  each  of  the  three  counts requires  different

elements  of proof, the  appellants are  incorrect when  they say

that  the dismissal  of one  of these  counts, namely  Count VII,

requires the dismissal of one or both of the other two counts.                  

          Although the appellants' argument  fails as a matter of

law,  we  proceed  to  consider the  possibility  of  some  other

implicit premise that may  have led to such a  patently incorrect

statement of law.

          One  premise  that  may  be  inferred  from appellants'

argument  is  that  in  order  to  prove  Count  VIII,  the  RICO

substantive violation with Aetna as the enterprise, the plaintiff

had to prove the  same relationships between the defendants  that

were essential  to the association-in-fact enterprise  alleged in

Count VII.  This assumption is incorrect.

          Section  1961 defines an  "enterprise" for the purposes

of RICO to include "any individual, partnership, corporation .  .

. or other  legal entity, and  any union or group  of individuals

associated-in-fact  although  not a  legal  entity."   18  U.S.C.

 1961(4).  Thus  to satisfy  the "enterprise" element  of a  RICO

substantive violation, a plaintiff may prove either the existence

of a  legal entity,  such as  a corporation, or  that a  group of                                                         

individuals  were   associated-in-fact.     Since   Aetna  is   a

corporation, Aetna can constitute an "enterprise" for the purpose

                               -19-

of Count VIII, even  if there is  no proof of an  association-in-

fact enterprise.  

          In   contrast,   Count  VII   requires   proof   of  an

association-in-fact    enterprise.       An   association-in-fact

enterprise   is   an   "ongoing   organization,"   with   members

"function[ing]  as a  continuing  unit," which  is "separate  and

apart  from  the pattern  of racketeering  in which  it engages."

United States v. Turkette, 452 U.S. 576, 583 (1981).                                   

          Since  no party  has  challenged  the district  court's

grant of the defendants' motion for  judgment as a matter of  law

on Count VII, we need not determine the precise elements required

for  a  plaintiff  to  prove  an  association-in-fact enterprise.

Nevertheless,  it is clear that an association-in-fact enterprise

is  different from  an enterprise  that is  a legal  entity, like

Aetna.   Since different  proof is  required  to establish  these

different kinds of an enterprise, the  court's determination as a

matter of  law  in  favor  of the  defendants  on  Count  VII  is

consistent  with  the  court's  determination  that  fact  issues

remained for the jury to decide with respect to Count VIII.

          Another  possible  premise,  which  is  not  explicitly

articulated  or acknowledged by the appellants,  is that in order

to prove a RICO conspiracy of the scope alleged in  Count IX, the

plaintiff was required to prove the existence  of an association-

in-fact enterprise of that same scope.

          This premise is  not valid.   Section 1962(d) does  not

require  proof   of  an  association-in-fact   enterprise.    Any

                               -20-

enterprise meeting the definition of enterprise in  1961 will do.

Under  1961 an  enterprise may include a  legitimate legal entity

like  Aetna as  the victim  of the  racketeering activity.   This

court has  previously upheld convictions under  both  1962(c) and

 1962(d), that alleged a victim enterprise like Aetna.

            See United States  v. Boylan, 898  F.2d 230                                                  
          (1st Cir.), cert. denied, 498 U.S. 849 (1990)                                            
          (victim  enterprise  was  the  Boston  Police
          Department).

Therefore, in order to  satisfy the enterprise element of  a RICO

conspiracy of the scope alleged in Count IX, the plaintiff needed

only  to prove  some  kind  of  enterprise  of  that  scope,  not

necessarily an  association-in-fact enterprise.   In the  case at

hand,  proving a RICO conspiracy with Aetna as the enterprise was

sufficient.

          For these reasons, the trial judge's ruling as a matter

of law for  defendants on Count VII, based on the conclusion that

there was not  enough evidence to go to the jury on the theory of

an  "association-in-fact" enterprise, is entirely consistent with

the jury findings of a  1962(c) substantive violation (with Aetna

as the  victim enterprise)  and of  a   1962(d) conspiracy  (with

Aetna as the victim enterprise).

          C.   Substantive  RICO  Violation  Under  1962(c)  with                                                                           

Aetna as the Enterprise -- Count VIII                                               

          For  an individual  defendant to  be liable for  a RICO

substantive   violation  under   1962(c),   with  Aetna   as  the

enterprise,  the evidence must be sufficient for the jury to find

                               -21-

that (1) Aetna was an enterprise affecting interstate or  foreign

commerce, (2)  that the defendant under  consideration associated

with the enterprise, (3) that this defendant participated  in the

conduct  of   the  enterprise's   affairs,  and  (4)   that  this

defendant's participation  was through a  pattern of racketeering

activity.  28 U.S.C.  1962(c).

          We  consider, whether  the evidence  was  sufficient to

prove each of these  elements against each of the  defendants the

jury found liable under Count VIII.

          First  Element.     Aetna is  an "enterprise  affecting                                   

interstate commerce" within  the meaning of  1962(c).   The major

purpose  of RICO  is to  protect legitimate  business enterprises

from infiltration by  racketeers.  "Enterprise"  as used in  this

act,  includes legitimate  corporations.   See  United States  v.                                                                       

Turkette, 452 U.S. 576, 101 S.Ct.  2524 (1981).  Since Aetna is a                  

major  property  and  casualty  insurer doing  business  in  many

states,  Aetna's  conduct  of  its business  "affects  interstate

commerce."

            See   United    States   v.   South-Eastern                                                                 
          Underwriters  Ass'n, 322  U.S. 533  (1944) (a                                       
          fire  insurance  company   that  conducts   a
          substantial part of its business transactions
          across  state lines  is engaged  in "commerce
          among  the several states"  and is subject to
          regulation under the Commerce Clause).

          Appellants  argue  that  Aetna  cannot  constitute  the

"enterprise" because the alleged racketeering  activities were to

the detriment and not the benefit of Aetna.   This argument rests

on a misinterpretation of the RICO statute.  The statute does not

                               -22-

require that the pattern of racketeering be in furtherance of the

enterprise.   In United States  v. Boylan, this  court upheld the                                                   

convictions  of Boston  police  detectives who  violated RICO  by

illegally  participating  in the  affairs  of  the Boston  Police

Department (the enterprise), through a pattern of racketeering by

accepting bribes.   Boylan, 898 F.2d 230.  In  Boylan, as in this                                                               

case,  the  affairs  of the  enterprise  were  undermined by  the

illegal activity.

            See also Yellow Bus  Lines, Inc. v. Drivers                                                                 
          Chauffeurs &amp;  Helpers  Local Union  639,  913                                                           
          F.2d 948, 952 (D.C. Cir. 1990), cert. denied,                                                                
          501 U.S. 1222 (1991)("Section 1962(c) nowhere
          requires proof regarding  the advancement  of
          the enterprise's affairs  by the  defendant's
          activities  or  proof  that   the  enterprise
          itself is corrupt . . . .");
            United States v.  Provenzano, 688 F.2d  194                                                  
          (3rd  Cir.),  cert.  denied,  459  U.S.  1071                                               
          (1982)(RICO  is  not limited  to racketeering
          activities  that  advance   or  benefit   the
          enterprise, but also encompasses racketeering
          activities that work to the detriment of  the
          enterprise).

          Second Element.   Appellants, who are  not employees of                                   

Aetna,  attempt to  distinguish Boylan  by pointing  out that  in                                                

Boylan  the defendants  were employees  of the  organization that                

constituted  the  RICO enterprise.    Appellants  argue that  the

statute  prohibits  employees   from  conducting  an enterprise's

affairs  through  a  pattern  of  racketeering  activity  to  the

detriment  of the enterprise,  but does not  prohibit persons who

are  merely associated  with the  enterprise from  conducting the

enterprise's  affairs  to  its  detriment through  a  pattern  of

racketeering activity.

                               -23-

          The  proposed  distinction  is  not  supported  by  the

language of the  statute, which refers to  "person[s] employed by

or associated with  any enterprise." 18 U.S.C.   1962(c)(emphasis                            

added).  Nor is it supported by any identifiable public policy or

by precedent.

            See, e.g., United States v. Yonan, 800 F.2d                                                       
          164 (7th Cir.  1986) cert.  denied, 479  U.S.                                                      
          1055 (1987)(upholding conviction of attorney,
          who was not an  employee of the enterprise, a
          prosecutor's  office,  for violating  RICO by
          conducting  the  affairs of  the prosecutor's
          office through bribery);
            United States v. Bright, 630 F.2d 804, 830-                                             
          31 (5th Cir. 1980) (upholding RICO conviction
          of a  bail bondsmen, who was  not an employee
          of  the enterprise,  a sheriff's  office, for
          unlawfully  participating  in the  affairs of
          the enterprise through bribery).

          Appellants also  argue that  the  defendants cannot  be

held  liable for a RICO  substantive violation with  Aetna as the

enterprise  because  they  were  not  even  "associates"  of  the

enterprise, but were  outsiders and, as  outsiders, could not  be

said  to "have participated  in the conduct"  of Aetna's affairs.

This is  an argument more of  words than substance.   The statute

uses the phrase "associated with" rather than creating a category

of "associates,"  narrowly defined to include  fewer persons than

those who may  be said to have "associated with" an enterprise in

a broader sense of this phrase.  In ordinary usage,  one who, for

example, buys an insurance policy from an  enterprise and depends

on  the solidarity  of  that enterprise,  for protection  against

defined risks, has an association  with, and may be said to  have

"associated with," the enterprise.

                               -24-

          Each of the individual appellants was either an insured

or a claimant under an Aetna policy, or an owner or operator of a

body  shop involved  in repairing  automobiles insured  by Aetna.

Three of  the five individual Arsenal  appellants (the Tirinkians

and Peter Markarian)  were both  insureds and operators.   As  an

insured,  a  claimant,  or a  body  shop  operator,  each of  the

appellants was in  a contractual  relationship with  Aetna.   The

body shop (also an  appellant) and its owners and  operators were

"associated  with"  Aetna  because  each body  shop  about  which

evidence  was received at trial was a place where Aetna employees

conducted  appraisals and  where cars  that were  the subject  of

insurance were purportedly repaired.

          Third Element.   Appellants  argue  that no  reasonable                                 

jury could have found  that the appellants "participated directly

or indirectly in the conduct of the enterprise's affairs" because

the  defendants   did  not  "participate  in   the  operation  or

management  of the enterprise itself."   Reves v.  Ernst &amp; Young,                                                                          

113 S.Ct. 1163 (1993).

          Contrary   to  the  appellants'  assertion,  there  was

sufficient  evidence  for a  reasonable  jury  to find  that  the

defendants'  activities  met  the definition  of  "participation"

adopted by the  Supreme Court  in Reves,  which is  known as  the                                                 

"operation  or  management"  test.    Id.  at 1172.    Appraising                                                   

allegedly  damaged vehicles  and  investigating, processing,  and

paying  automobile insurance  claims are  vital parts  of Aetna's

business.  By acting with purpose to cause Aetna to make payments

                               -25-

on false claims, appellants were participating in the "operation"

of Aetna.

          The  Supreme  Court  in  Reves interpreted  the  phrase                                                  

"conduct of the  enterprise's affairs" to  indicate a "degree  of

direction,"  which the court  described as  taking "some  part in

directing  the enterprise's affairs."  Id. at 1170.  The evidence                                                    

was sufficient to support  a finding that the  individual Arsenal

defendants'  activities  affected,  in  a  material  degree,  the

direction of Aetna's affairs by  employees of Aetna.  Appellants'

activities caused Aetna  employees having authority  to do so  to

direct that  other employees make payments  Aetna otherwise would

not have  made.  The Court  in Reves emphasized that,  as in this                                              

case, the defendants' "participation"  could be "indirect" in the

sense  that persons with no formal position in the enterprise can

be held liable under   1962(c) for "participating in the  conduct

of the enterprise's affairs."   Id.  The evidence  was sufficient                                             

to  support a finding that each of the appellants participated in

the conduct of Aetna's affairs in this way.

          Moreover, in Reves the court expressly recognized  that                                      

"an  enterprise  also might  be  operated  or managed  by  others

'associated with'  the enterprise who  exert control over  it as,

for example, by bribery."  Id. at 1173.  When viewed in the light                                        

most favorable to  the plaintiff,  in support of  the verdict  in

this case, the evidence supports a finding that appellants caused

the Aetna appraisers  to approve false  claims and conduct  their

appraisals in a manner contrary to Aetna's business practices and

                               -26-

caused Aetna to pay out large sums of money on false claims.  The

evidence  was sufficient  to  support a  finding that  appellants

exerted  control over  the  enterprise, if  not  by bribery  (the

example  given by  the Court  in Reves), then  at least  by other                                                

methods of inducement.   Since a reasonable jury could  find that

the appellants exerted some  control over Aetna and took  part in

directing   some  aspect   of  the   enterprise's   affairs,  the

appellants'  actions  could  be   found  to  have  satisfied  the

"operation or management" test.

          Fourth Element.  The final element necessary to support                                   

liability  under  1962(c) is  that each defendant's participation

was  "through a pattern of  racketeering activity."   In order to

establish a  pattern of racketeering activity,  the evidence must

show  that  each defendant  committed  two  acts of  racketeering

activity  within the span of  ten years.   The predicate acts are

defined by 18 U.S.C.  1961 to include mail fraud, wire fraud, and

bribery as well as aiding and abetting these offenses.

            See Oreto,  No.  91-1769, slip  op.  at  27                               
          (jury  could find  a pattern  of racketeering
          activity for the purposes of  1962(c) if  the
          appellants aided and  abetted the  commission
          of at least two predicate acts);
            see also Pereira v. United States, 347 U.S.                                                       
          1,  9 (1954)(a  person  who  aids  and  abets
          another  in the commission  of mail  fraud, a
          violation of  1341, also violates  1341); 
            18  U.S.C.   1961   (violations  of    1341
          constitute predicate racketeering activity).

          Although  these  terms refer  to  criminal  offenses to

which the  beyond-reasonable-doubt  burden of  proof  applies,  a

plaintiff  in a  civil  RICO action  may  prove these  acts  by a

                               -27-

preponderance of the evidence.

            See Combustion Engineering, Inc.  v. Miller                                                                 
          Hydro Group,  13  F.3d  437,  466  (1st  Cir.                               
          1993)(the   preponderance  of   the  evidence
          standard applies  to  fraud claims  in  civil
          RICO proceedings);
            see also Moss v.  Morgan Stanley, Inc., 553                                                            
          F. Supp.  1347 (S.D.N.Y.), aff'd  719 F.2d  5                                                    
          (2d Cir. 1983), cert. denied sub nom. Moss v.                                                              
          Newman, 465 U.S.  1025 (1984) (although proof                          
          in civil proceedings under RICO requires only
          a preponderance of the  evidence, which is  a
          lower  standard  of  proof than  in  criminal
          proceedings, the standard does not  relate to
          the elements of the predicate crimes, but  to
          the  burden  that   the  plaintiff  bears  in
          showing the elements).

          The  elements of a mail fraud violation are a scheme to

defraud  and the  use  of the  mails to  execute or  further this

scheme.

            United States v.  Brien, 617 F.2d 299,  311                                             
          (1st  Cir.),  cert.  denied,  446   U.S.  919                                               
          (1980).

The  plaintiff alleged  that  each defendant  committed predicate

acts of mail fraud.

          The  intentional filing  of false  insurance  claims or

false completed work forms in order to obtain payments from Aetna

constitutes  a "scheme to defraud" Aetna.  The plaintiff does not

need to prove that  each defendant personally used the  mails but

only that the defendant acted "with knowledge that the use of the

mails will follow in  the ordinary course of business,  or [acted

in  circumstances] where  such use  can be  reasonably foreseen."

United States v. Maze, 414  U.S. 395, 399 (1974).  In  this case,                               

it  could reasonably be foreseen by each defendant that either an

insured, a claimant,  a body shop or  an appraiser would  use the

                               -28-

mails in connection with  each of the fraudulent claims,  or that

Aetna would use  the mails  to send payments  to the  recipients.

All of  these  uses of  the  mails  were in  furtherance  of  the

defendants' fraudulent scheme.

            See United States v. Martin, 694 F.2d  885,                                                 
          890 (1st Cir. 1982)  (refund checks mailed by
          an  insurance company  to  the defendant,  an
          insurance agent, were closely  enough related
          to  the agent's  insurance  fraud  scheme  to
          bring his conduct within the statute).

          In addition to  proof of at  least two predicate  acts,

there  must be evidence  of "continuity" sufficient  to show that

the  predicate   acts  constitute  a  "pattern"  of  racketeering

activity.     Boylan,  898  F.2d  at  250.    Continuity  may  be                              

established by  proving that  the predicate acts  "form a  closed

period of  repeated conduct" or that  they "are a regular  way of

conducting the enterprise."

            Id.;                         
            see also Digital  Equipment Corp. v.  Curie                                                                 
          Enterprises,   142   F.R.D.   16  (D.   Mass.                               
          1992)(holding that the use of the mails forms
          a "pattern of  racketeering activity" if  the
          uses are related and  they amount to, or pose
          threat of, continued illegal activity).

The  evidence  of the  ongoing  succession  of fraudulent  claims

presented in this case easily satisfies this requirement.

          The appellants  do  not dispute  that  each  fraudulent

claim is an  act of mail fraud and that  mail fraud is sufficient

to  constitute  a  predicate  offense  under  the  RICO  statute.

Similarly,  the appellants  do  not contend  that the  fraudulent

insurance claims were unrelated  or so dissimilar as to  lack the

continuity  necessary to  establish a  "pattern" of  racketeering

                               -29-

activity.   The  appellants  simply  contend  that there  was  no

evidence  of fraud on the part of any of the appellants.  We have

concluded that this assertion is contrary to the record.

          D.   RICO Conspiracy under Section 1962(d) -- Count IX                                                                          

          In   addition  to   finding   the  individual   Arsenal

defendants liable for a RICO substantive  violation with Aetna as

the  enterprise,  the jury  also  found  each  of the  individual

Arsenal defendants  liable for a RICO  conspiracy violation under

 1962(d).  Liability on this theory is proved against a defendant

by showing  (1) the existence of  enterprise affecting interstate

commerce, (2) that the  defendant knowingly joined the conspiracy

to participate in the  conduct of the affairs of  the enterprise,

(3) that the defendant participated in the conduct of the affairs

of  the enterprise, and (4)  that the defendant  did so through a

pattern of racketeering  activity by  agreeing to  commit, or  in

fact committing, two or more predicate offenses.  See Boylan, 898                                                                      

F.2d at 241.

          Even  though no  party  objected (on  grounds  relevant

here) to  the trial court's charge to the jury on the elements of

the  alleged  RICO conspiracy  (as well  as  the elements  of the

alleged RICO substantive violations), we have examined the charge

to the jury and determined it to be consistent with the  elements

of a RICO conspiracy as we have stated them here.  In arriving at

this formulation, we have been sensitive to the fact that earlier

cases in  this  circuit used  the  phrase "knowingly  joined  the

                               -30-

enterprise."

            United States v. Angiulo, 847 F.2d 956, 964                                              
          (1st   Cir.),  cert.  denied,  488  U.S.  928                                                
          (1988);
            United States  v.  Winter, 663  F.2d  1120,                                               
          1136 (1st Cir. 1981), cert. denied,  460 U.S.                                                      
          1011 (1983).

In Boylan,  the court  first  used this  same phrase  ("knowingly                   

joined the enterprise"), 898 F.2d at 241 (emphasis added), but in                               

a passage  following shortly  thereafter referred to  whether the

defendants had knowingly joined the conspiracy.                                                        

            Id.  ("Our inquiry thus  reduces to whether                         
          such  a conspiracy,  knowingly joined  by all
          defendants, was satisfactorily proven.").

In  Boylan  (and  perhaps  the  earlier   cases  as  well),  this                    

difference in phrasing was immaterial to the outcome of the case.

This  was so in Boylan  because the evidence  was undisputed that                                

all  of the defendants alleged to have joined the conspiracy were

indisputably  employees  of  the  Boston  Police  Department, the

alleged  enterprise.   In the  present case,  on the  other hand,

plaintiff alleged that defendants who were not employees of Aetna

(the enterprise  in Count VIII) knowingly  joined the conspiracy.

For this reason we have addressed the issue more precisely in our

formulation, stated above, of the elements  of a RICO conspiracy,

as applied to this case.

          We  conclude that  the issue  we must  consider is  not

whether the defendants knowingly joined the victim enterprise (as

first  phrased in Boylan) but  (as later stated  in that Opinion)                                  

whether  the  defendants  knowingly  joined  a  conspiracy.    We

conclude that  the evidence  is sufficient  to support a  finding

                               -31-

that each of the appellants "knowingly joined" the  1962(d)  RICO

conspiracy.

          The alleged   1962(d) RICO conspiracy (Count  IX) was a

conspiracy  to violate  1962(c).   The major difference between a

violation of  1962(c) itself (such as Count VIII) and a violation

of  1962(d) based on  1962(c)(such as Count IX) is the additional

required element that the defendant knowingly joined a conspiracy

to violate  1962(c).  Another difference is that, to prove that a

defendant violated  1962(c), it is necessary for the plaintiff to

prove two  predicate offenses; under  1962(d),  in contrast, this

is not an element required to be proved.  To prove a violation of

 1962(d), it is enough to prove that a defendant agreed with  one                                                                 

or more others  that two  predicate offenses be  committed.   See                                                                           

Boylan, 898  F.2d  at 252.    In the  present case,  this  latter                

difference  is of  no practical  consequence because  we conclude

that there was sufficient evidence to support a finding that each

defendant in fact committed two predicate offenses.

          One  assertion,  perhaps  implicit in  the  appellants'

argument,  is that, in order  to prove each  defendant liable for

RICO   conspiracy  (a   1962(d)  violation),  the  plaintiff  was

required to prove  a conspiracy to defraud Aetna in which each of

the  Arsenal  defendants  conspired  directly with  one  or  more

persons associated with each of the other body shops.

          This   assertion  is   incorrect  because   it  depends

necessarily upon a misinterpretation  of  1962(d) with respect to

the  elements necessary to prove  a RICO conspiracy.   It is true

                               -32-

that to find a defendant liable under  1962(d) one must find that

the defendant conspired to  violate a subsection of  1962.  It is

not  necessary, however, to find that each defendant knew all the

details  or  the full  extent  of the  conspiracy,  including the

identity and role of every other conspirator.

            Boylan, 898 F.2d at 242 ("A RICO conspiracy                            
          does  not demand  . .  . that  all defendants
          participate in all racketeering acts, know of
          the  entire  conspiratorial   sweep,  or   be
          acquainted with all other defendants.")

          All that is necessary to prove this element of the RICO

conspiracy, against  a particular defendant, is to  prove that he

or  she agreed with one or more co-conspirators to participate in

the   conspiracy.    Moreover,  it  is   not  necessary  for  the

conspiratorial agreement to  be express, so long as its existence

can  plausibly   be  inferred   from  words,  actions,   and  the

interdependence  of  activities  and persons  involved.    United                                                                           

States v.  Concemi, 957 F.2d 942,  950 (1st Cir. 1992).   In this                            

case,  the jury reasonably  could have found  that, although each

defendant  may not have known the entire sweep of the conspiracy,

each  defendant  knew that  he  or she  was  a part  of  a larger

fraudulent scheme.   For example, since the  evidence supported a

finding that each of the Arsenal defendants was well aware of the

fraudulent business  practices of  Dexter and Cummings,  the jury

could find that all of the Arsenal defendants knew they were part

of a larger conspiracy  in which other persons made  uses similar

to their own  of fraudulent  appraisals by  Dexter, Cummings,  or

both.

                               -33-

          A   defendant   who   does   not   know   the   "entire

conspiratorial  sweep"  is  nevertheless  jointly  and  severally

liable, in the civil context, for all acts  in furtherance of the

conspiracy.  Using a  common metaphor, one may say  that Cummings

and Dexter, the Aetna appraisers, were  at the hub of the overall

RICO conspiracy,  providing the  central point through  which all

the defendant body shops were connected.  A jury could reasonably

find that, through Cummings  and Dexter, the conspiratorial sweep

extended  to all  the body  shops  and most,  if not  all of  the

individual defendants.  The jury in this case found that the RICO

conspiracy included all other appellants, except for Arsenal Auto

Repairs,  Inc. and  Betty  Arhaggelidis.   We  need not  consider

whether the evidence would have supported a finding against these

two appellants as well.  That was not  essential to the liability

of  others under this theory,  nor to the  liability of these two

appellants under a different theory.

          From evidence  of the  extensive dealings of  all other

appellants with Cummings and Dexter, the jury could have inferred

an  agreement,  to  defraud  Aetna,  among  all  of  the  Arsenal

defendants (Arhaggelidis not being  an Arsenal defendant) and the

appraisers.    Through  evidence   of  each  individual   Arsenal

defendant's actions, the jury could infer that each defendant had

the  requisite state of mind  for a RICO  conspiracy violation --

knowing participation.

            See   Boylan,  898   F.2d  at   242  ("[The                                  
          plaintiff]  may  prove  [a  RICO  conspiracy]
          through the use  of circumstantial  evidence,
          so  long as  the  total  evidence,  including

                               -34-

          reasonable   inferences,  is   sufficient  to
          warrant [the jury's findings].").

          The appellants do not  dispute that Dexter and Cummings

conspired  with the owners and operators of the other body shops.

Through Dexter  and Cummings, the Arsenal  defendants were linked

to  all the  other  defendants who  were  found liable  for  RICO

conspiracy.   Thus, upon proof  that each defendant  committed or

agreed  to  the  commission   of  two  predicate  offenses,  each

defendant could be held liable for the overall RICO conspiracy.

          Moreover,   although  it  was  not  necessary  for  the

plaintiff to  prove that the Arsenal defendants knew the identity

of defendants from  the other body  shops and conspired  directly

with them, the evidence was sufficient for the jury to infer that

this  was in  fact  the  case.    For  example,  Zareh  Tirinkian

testified that  he frequently  attended parties and  other social

engagements with the operators of the other body shops.  Although

Tirinkian denied  discussing his  practice  of filing  fraudulent

insurance claims with  the other body  shop owners, the  evidence

showed  that   the  body  shops'  racketeering   activities  were

unusually similar.   The  body shops  all  defrauded Aetna,  they

reported nearly  identical types  of fraudulent claims,  and they

obtained  appraisals from the same appraisers.  Evidence of these

similarities,   considered  along   with   other  evidence,   was

sufficient to  support a jury finding that the owners of the body

shops conspired directly with one another.

            Id. at 242 (a jury may infer that  a single                         
          overall conspiracy existed  when evidence  of
          racketeering   acts   shows   "hallmarks   of

                               -35-

          similarity"  and  "a  significant  degree  of
          interconnectedness").

          E.   Civil Conspiracy -- Count X                                                    

          Defendant  Arsenal  Auto  Repairs,  Inc.  was not  held

liable  under any RICO theory.  The judgment against Arsenal Auto

rests instead, upon  the jury's  finding that Arsenal  Auto   was

liable  for  civil conspiracy.   The  appellants' brief  does not

challenge this  finding  against Arsenal  Auto  on the  basis  of

insufficiency of  the evidence.   For this reason,  the following

discussion  of  civil conspiracy  concerns  Arhaggelidis's appeal

only.

          Appellant Arhaggelidis challenges the  judgment entered

against  her for civil conspiracy  on the ground of insufficiency

of  the evidence.   The plaintiff  alleged that  Ms. Arhaggelidis

conspired  with  her  fellow  Rodco/P&amp;B  Autobody  defendants  to

defraud Aetna.

          The  nature  of  a  "civil conspiracy"  and  the  proof

required to invoke  this type of claim  differ significantly from

those  applying to  criminal conspiracies  generally and  to RICO

conspiracies in  particular.  Under Massachusetts  law, either of

two possible causes of action may be called "civil conspiracy."

          First.   There is precedent supporting  a "very limited                          

cause  of action in  Massachusetts" for  "civil conspiracy"  of a

coercive type.  See  Jurgens v. Abrams, F.  Supp. 1381, 1386  (D.                                                

Mass. 1985).  "In order to state a claim of  [this type of] civil

conspiracy,  plaintiff must  allege  that defendants,  acting  in

                               -36-

unison, had  some peculiar power of coercion  over plaintiff that

they would not have had if they had been acting independently."

            Id. (quotations  omitted)(citing Fleming v.                                                              
          Dane, 22 N.E.2d 609 (Mass. 1939)).                        

          Plaintiff,  in   paragraph  480  of  Count   X  of  its

complaint,  does allege  a  circumstance that,  if proved,  might

constitute such a  "peculiar power of coercion."   The allegation

is  that  "defendants  were   collectively  able  to  negate  the

safeguards that would have prevented any one group of defendants,

acting alone from  accomplishing a  fraud of this  type."   (App.

609).

          Despite the  fact that  the pleading was  sufficient to

state a  claim of this type of civil conspiracy, however, Count X

was tried and the jury was  ultimately instructed on a second and

quite different "civil conspiracy" cause of action.

          Second.  This  second type of civil  conspiracy is more                           

akin to a  theory of common law  joint liability in tort.   It is

explicitly recognized in Massachusetts law.

            See  Gurney v.  Tenney,  84  N.E. 428,  430                                            
          (Mass. 1908);
            see also Phelan v.  Atlantic Nat'l Bank, 17                                                             
          N.E.2d 697, 700  (Mass. 1938)("[A]verment  of
          conspiracy does not ordinarily  change nature
          of cause of action [sounding in tort] nor add
          to its legal force.").

In the  civil context, both  elsewhere and in  Massachusetts, the

word conspiracy is frequently  used to denote vicarious liability

in tort for "concerted action."

            See W.  Page Keeton, Prosser and  Keeton on                                                                 
          Torts 322 (5th ed. 1984);                         
            Restatement (Second) of  Torts  876 cmt.  b                                                    

                               -37-

          (1977).

That  is,  the concept  is invoked  to  support liability  of one

person for a tort committed by another.   For liability to attach

on  this basis,  there  must be,  first,  a common  design  or an

agreement, although not necessarily  express, between two or more

persons to do a wrongful act and, second, proof  of some tortious

act in furtherance of the agreement.

          See  Restatement (Second) of  Torts  876 cmt.                                                       
          b.

Where  two or more persons  act in concert,  each will be jointly

and severally liable for the tort.

            See id.;                             
            see  also  New  England Foundation  Co.  v.                                                             
          Reed, 95 N.E. 935,  935 (1911)("The gist of a                        
          civil  action  of   this  sort  is   not  the
          conspiracy, but  the deceit or  fraud causing
          damage  to  the  plaintiff,  the  combination
          being  charged  merely  for  the  purpose  of
          fixing joint liability on the defendants.").

According to the Restatement:

          For harm resulting to a third person from the
          tortious conduct of  another, one is  subject
          to liability if he (a) does a tortious act in
          concert  with  the  other or  pursuant  to  a
          common design with him . . . .

Restatement (Second) of Torts,  876 (1977).

          The  Supreme   Judicial  Court  has  implied  that  the

Massachusetts   common  law   of  civil   conspiracy  encompasses

liability of this nature,  even if the elements of  liability are

not in all respects identical to those defined in this section of

the Restatement.

            Kyte v.  Philip  Morris, Inc.,  556  N.E.2d                                                   
          1025,  1027  (Mass.  1990)(citing Gurney,  84                                                            

                               -38-

          N.E.   428,  and   declining  to   "pause  to
          determine whether the  principles of  876 and
          the  law  of  the Commonwealth  are,  in  all
          respects,  in  complete  accord" because  the
          parties  accepted  this section  as governing
          the principles  of  civil conspiracy  in  the
          Commonwealth);
            see also  Gurney, 84 N.E. at  430 (alluding                                      
          to  concert  of  action  theory    similar to
           876(a));
            Payton v. Abbott  Labs, 512 F.  Supp. 1031,                                            
          1035  (D. Mass. 1981)("The  concert of action
          theory in Massachusetts tracks  876(a) of the
          Restatement.").

The district court, in  this case, instructing the jury  on civil

conspiracy, stated:

          The essence  of conspiracy is that the person
          agreed with  one  or more  other persons  [to
          commit an unlawful  act] .  . . .   Plus  for
          conspiracy . . . somebody has to do something
          to attempt to make it come about.

(App. 4817-18).

Although  this  instruction  is  not  precisely  in  accord  with

Restatement   876,  the appellant  has  not  presented any  issue

before this court regarding  the instruction.  In any  event, she

would be precluded from doing so here, not having objected to the

instruction in the district court.  Fed. R. Civ. P. Rule 51.

          She  did, however,  challenge  the  sufficiency of  the

evidence  by her  motion for  judgment as  a matter  of law.   We

conclude, nevertheless,  that we  need not determine  the precise

state of Massachusetts  law on concerted action  in tort, because

under  any plausible  formulation  of Massachusetts  law, a  jury

reasonably could  find that  Betty Arhaggelidis acted  in concert

with  her  husband and  fellow  Rodco/P&amp;B  Autobody defendant  to

defraud Aetna.

                               -39-

          The  jury,   with  support  in  evidence,   found  that

Rodco/P&amp;B  Autobody was  associated with  thirty-seven fraudulent

claims that were submitted to Aetna, and that  Betty Arhaggelidis

was directly involved in six of those claims.

          From the  evidence at trial, the  jury reasonably could

find  also that  Ms.  Arhaggelidis "acted  in  concert" with  her

husband, the owner  of Rodco/P&amp;B Autobody,  pursuant to a  common

design.  All  six claims  with which she  was connected  involved

claimed damage  purportedly repaired at Rodco/P&amp;B  Autobody.  All

six  claims were supported by  appraisals by Mr.  Cummings, a co-

defendant.  Her husband, Petros Arhaggelidis,  allegedly repaired

many  of the  cars personally.   Evidence  was received  that she

represented  to  Aetna that  the repairs  had  been made.   Also,

evidence  was received of other fraudulent conduct on the part of

Mr. Arhaggelidis:  he  was a claimant on several  claims the jury

found  to be  fraudulent, and  he made  payments to  Mr. Cummings

totalling  over $35,000, which the jury could have inferred to be

bribes.   From the evidence as  a whole, the jury  could infer an

agreement between Betty Arhaggelidis and her husband, under which

they played different roles, but nevertheless acted together with

a common design to defraud Aetna.

              IV.  SUBMISSION OF CLAIMS TO THE JURY                        IV.  SUBMISSION OF CLAIMS TO THE JURY

          The Arsenal appellants  argue that only  sixteen claims

involving the  Arsenal defendants  should have been  submitted to

the  jury,  instead  of  the thirty-three  claims  involving  the

Arsenal  defendants on which evidence  was heard.  The appellants

                               -40-

correctly assert  that only sixteen of  these thirty-three claims

were made to Aetna; the other seventeen claims were made to other

insurance  companies  (except   for  Tareh  Tirinkian's  worker's

compensation claim).

          Aetna  recovered  damages  for  the  sixteen automobile

insurance claims  paid by Aetna  -- claims the  jury found  to be

fraudulent.    The trial  court  admitted evidence  of  the other

seventeen claims  because each was relevant  to the determination

of fraud with respect to one  or more of the sixteen Aetna claims

at issue.   For  example, many of  the claims to  other insurance

companies duplicated  one or more of the claims to Aetna.  In one

or more  instances, damage that  was allegedly  sustained in  one

accident  was later reported to  Aetna in connection with another

alleged accident.  On this appeal we need  not decide whether the

district   court   was   correct  in   admitting   the   evidence

corresponding to  each of the seventeen  claims because, although

in  some instances the appellants objected to the introduction of

this  evidence  at trial,  their briefs  in  this court  have not

directly challenged these rulings of the district court.

          Instead, the  appellants argue  that  the verdict  form

should not have asked the jury to determine whether each of these

seventeen  other claims was fraudulent.   We will assume, without

deciding, that the trial court's inclusion in the verdict form of

questions about these seventeen claims was unnecessary because at

most they concerned findings of an evidentiary nature rather than

findings on  ultimate issues of  fact that had  to be decided  to

                               -41-

determine  whether  each element  of  some claim  or  defense was

proved.   Since the appellants do  not even articulate grounds of

an  argument for prejudicial error, however,  much less show that

they  were in  fact prejudiced  in any way  by the  submission of

these  seventeen other insurance claims  to the jury,  we have no

occasion to determine whether their submission was improper.  The

trial  court  did consider  and  reject  the Arsenal  defendants'

arguments  that  they  were  prejudiced  by  the  jury's  hearing

evidence  of these seventeen claims.  The trial court allowed the

evidence  because  it tended  to support  a  finding of  a common

pattern and scheme of fraud that the  jury might find extended to

all the Aetna  claims and others as well.   Even assuming that an

issue   regarding  admissibility  of  the  evidence  is  properly

preserved for our consideration, we conclude that this ruling was

not an abuse of discretion.  Nor was it an abuse of discretion to

submit to the jury questions about these claims.  It is true that

the jury's findings with respect to the seventeen other insurance

claims were not essential to the judgment entered on the verdict.

We  note, however,  that an  argument can  be made,  although the

appellee  does not advance  it on appeal  (and need not  do so in

view of other findings), that each  of these claims, if found  to

constitute  mail fraud, would constitute  a predicate act for the

purposes of Count VI, the substantive RICO violation with Arsenal

Auto as the enterprise.   For example, one  could argue that  two

related, fraudulent  claims, although one was  submitted to Aetna

and  one  was  submitted  to  another  insurance  company,  would

                               -42-

constitute a "pattern of racketeering activity" through which the

defendantsparticipated inthe conductof theaffairs ofArsenal Auto.

          In considering the sufficiency of evidence, we need not

address the merits of such an argument because even when limiting

the scope  of our  review of  the evidence  to the  sixteen Aetna

insurance claims, we find  that there was sufficient evidence  to

support the finding that each of  the Arsenal defendants violated

RICO  1962(c) by  committing two related, predicate acts  of mail

fraud.

        V.  UNFAIR TRADE PRACTICES:  MASS GEN. L. CH. 93A                  V.  UNFAIR TRADE PRACTICES:  MASS GEN. L. CH. 93A

          Mass. Gen.  L. ch.  93A prohibits "unfair  or deceptive

acts or practices in the conduct of any trade or commerce."  Mass

Gen. L. ch.  93A  2.  The statute provides  for treble damages in

the  case of a willful violation of  the statute.  The jury found

that  Zareh  Tirinkian,  Jack  Markarian,  and  Peter Markarian's

deceptive business practices  constituted a willful  violation of

this statute.

          Appellants contend that their  dealings with Aetna were

purely  personal and  that  they did  not  violate this  statute,

because they did not deal with Aetna in a business context.

          Appellants are  correct  in asserting  that the  phrase

"persons  engaged in . . . trade or commerce" refers specifically

to  individuals acting  in a  business context.   See  Lantner v.                                                                        

Carson, 373 N.E.2d 973 (Mass. 1978).  Contrary to the appellants'                

assertions, however, the evidence was sufficient for the  jury to

find that  these  three  defendants were  acting  in  a  business

                               -43-

context and engaged in unfair or deceptive business practices  in

violation of this statute.

          All three defendants were  involved in the Arsenal Auto

business:   Zareh  Tirinkian  was an  owner  and Jack  and  Peter

Markarian performed  repair  work.   The jury  found that  family

members  and  friends of  these  defendants submitted  fraudulent

claims to Aetna for damages.   Most of these cars  were appraised

by  Aetna appraisers, and most  of the repair  work was allegedly

performed at Arsenal  Auto.   Many of the  work completion  forms

submitted  to Aetna with respect  to these claims  bear the stamp

"Arsenal  Auto Repairs," certifying  that Arsenal  Auto completed

the repair work.

          Under  Massachusetts law, "unfair and deceptive acts or

practices" include acts of fraud.

            See Evans v. Yegen Associates, Inc., 556 F.                                                         
          Supp. 1219,  1227  (D. Mass.  1982)("Acts  of
          fraud clearly fall within  2 [of Mass Gen. L.
          ch. 93A].");
            see  also  Heller  v.  Silverbranch  Const.                                                                 
          Corp.,   382   N.E.2d   1065,   1069   (Mass.                         
          1978)(Chapter 93A expands  common law  notion
          of fraud).

          We  conclude that  the  evidence was  ample to  support

findings of fraudulent practices by these three defendants.  From

the  evidence before them, the  jury could find  that these three

defendants used  deceptive business practices  in their  dealings

with Aetna in violation of Mass. Gen. L. ch. 93A.

                     VI.   JURY INSTRUCTIONS                               VI.   JURY INSTRUCTIONS

          In   addition  to   arguing   that  the   evidence  was

                               -44-

insufficient to  support the finding that each  of the individual

Arsenal appellants violated 18  U.S.C.  1962(c) and  1962(d), the

appellants assign error in the district court's jury instructions

on these counts.

          The  court   instructed  the  jury   that  "[t]he  term

'participate  in  the  conduct  of an  enterprise'  includes  the

performance of acts, functions or duties which are related to the

operation of  the enterprise."   The appellants  argue that  this

instruction on  the meaning of the  phrase "participated directly

or indirectly in the conduct of the enterprise's affairs"  failed

to comport with the "operation or management" test adopted by the

Supreme Court in Reves v. Ernst &amp; Young, 113 S.Ct. 1163 (1993).                                                 

          The appellants are  precluded from successfully  making

this  argument on appeal, however, since they failed to object on

this ground at  trial.  Fed.  R. Civ. P.  Rule 51.   Although the

appellants contend  that they  objected to this  instruction, the

most that can be said is that they objected to the "RICO -- Aetna

as the enterprise" charge on  the ground that Aetna could  not be

the enterprise  as a matter of  law.  See App. 4833.   The record                                                   

shows that the court did not interpret this to be an objection to

any  jury instruction, but merely further  argument in support of

their  motion for  judgment as a  matter of  law.   See App. 4834                                                                 

("You've  made a directed verdict, I've overruled.  Of course you

object to the  theories going to the jury. . .  . Your rights are

saved  as to  that.").   In  any case,  even if  this were  to be

interpreted as  an  objection  to  the  instruction,  it  is  not

                               -45-

sufficient  to preserve an issue  for appeal because  it does not

"state  distinctly the  matter objected  to and  the grounds  for

objection."

            Fed. R. Civ. P. Rule 51;
            see  also Jordan  v.  United States  Lines,                                                                 
          Inc., 738  F.2d  48 (1st  Cir.  1984)(holding                        
          that  appellant's  objection  to   the  trial
          court's  instruction  on  the  definition  of
          "unseaworthiness" was not specific  enough to
          satisfy Rule 51).

Moreover,  even if viewed as an objection, counsel's statement is

reasonably understood as  an objection only to  the definition of

"enterprise"  and not  to the definition  of "participate  in the

conduct  of the affairs."   The appellants never  objected to the

district court's definition of "participate in the conduct of the

affairs of the enterprise,"  nor did they ever mention  the Reves                                                                           

test or offer  any alternative  to the instruction  given by  the

judge.

          Although this  jury instruction  is arguably open  to a

broader  interpretation,  it  is  also reasonably  understood  to

convey a meaning consistent with  the Supreme Court's language in

Reves that  in order to  be liable  under RICO, a  defendant must               

"participate  in the  operation or  management of  the enterprise

itself."     Reves,  113  S.Ct.   at  1173.     "Because  of  the                            

[appellants'] failure to comply with Rule 51, we review the trial

court's  instructions only for plain error."  Poulin v. Greer, 18                                                                       

F.3d 979, 982  (1st Cir. 1994).  "The plain  error rule should be

applied sparingly and only in exceptional cases or under peculiar

circumstances  to prevent  a clear  miscarriage of  justice." Id.                                                                           

                               -46-

(quotations  omitted).   The  alleged error  in this  instruction

fails to pass this test.

                   VII.  JURY TRIAL ON DAMAGES                             VII.  JURY TRIAL ON DAMAGES

          A.   Post-Verdict Hearings and the Standard of Decision                                                                           

          The Arsenal appellants  challenge the judgment  entered

against them  on the ground that they were denied a jury trial on

damages in  violation of the  Seventh Amendment guarantee  of the

right to a  jury trial upon a timely demand.  Fed. R. Civ. P. 38.

Appellants demanded a jury  trial and agreed to a  bifurcation of

liability issues and damages.  Following the jury trial and  jury

verdict on the issues  of liability, the district  court properly

determined  that no  genuine disputes  of material  fact remained

with respect to damages.

          The appellants' challenge fails because, after the jury

verdict, damages could be determined purely "as a matter of law,"

in  the sense  that reasonable  factfinders applying  the correct

legal  standard could  come to  but one  determination as  to the

amount  of damages  to be  awarded under  the jury's  findings on

liability.

          Precedents  regarding  summary judgment  provide useful

guidance  on issues arising after jury verdict in the first phase

of a phased trial such as occurred in this case.

          In the pretrial context,  regardless of any jury demand

made  by  the parties,  summary  judgment  is warranted  when  no

triable fact issues have been identified.

            See  Anderson v.  Liberty Lobby,  Inc., 477                                                            

                               -47-

          U.S.    242   (1986)(summary    judgment   is
          appropriate when there are no disputed issues
          of material fact);
            see  also Plaisance v. Phelps, 845 F.2d 107                                                   
          (5th  Cir. 1988)(plaintiff  did  not have  an
          absolute right  to a  jury trial where  there
          was no genuine issue of material  fact, since
          the  function of  a jury  is to  try disputed
          material facts);
            Bloomgarden  v.  Coyer, 479  F.2d  201, 206                                            
          (D.C.   Cir.   1973)("The  summary   judgment
          procedure is properly and wholesomely invoked
          when it eliminates a useless trial. . . .").

          In addition, under Federal  Rule of Civil Procedure 16,

the  court may take action  to formulate and  simplify the issues

"including  the  elimination of  frivolous  claims  or defenses."

Fed.  R. Civ.  P. 16.   Rule  16 also  authorizes courts  to take

action with respect to the "appropriateness and timing of summary

adjudication under Rule 56."  Id.  Moreover, Rule 16 was intended                                           

to  confirm  the power  of the  court  to "identify  [] litigable

issues" without  awaiting a  formal motion for  summary judgment.

Advisory Committee Notes, 1983 Amendment.

          In this case, the trial judge's determination regarding

the damages  to be  awarded  was made  after  the jury  trial  on

liability.   At the conference  on damages held  after trial, the

court stated  its intention to  enter a judgment  without another

trial  if  no genuine  dispute of  fact  material to  the damages

determination remained.   In a conference with counsel, the court

stated, "[u]nder Rule  16, I have the power  to narrow the issues

for trial . . . I can in effect talk through a proceeding akin to

a motion for summary judgment."

          This court  has held  that a district  court may  grant

                               -48-

summary  judgment sua sponte as long as two requirements are met.

Stella  v. Town  of Tewksbury,  4 F.3d  53, 55  (1st  Cir. 1993).                                       

"First the discovery phase must be sufficiently advanced that the

court can  make an  accurate determination  of whether a  genuine

issue  of  material  fact  [exists]."   Id.  (citation  omitted).                                                     

Second,  "the target must have been  on notice to bring forth all

of its evidence."  Id.  "'Notice' in this context  means that the                                

losing party  . . . received  a fair opportunity to  put its best

foot forward."   Jardines Bacata, Ltd. v.  Diaz-Marquez, 878 F.2d                                                                 

1555, 1560 (1st Cir. 1989).

          These two  requirements were met.   The discovery phase

was not merely "sufficiently advanced."  It was complete.  And  a

trial on the liability issues had been completed.  The appellants

received notice and  an opportunity  to be heard.   The  district

judge,  before   entering  judgment,   allowed  the   parties  an

opportunity to file written  submissions on the issues  that were

raised at the conference.

          In  their post-trial  memorandum,  the appellants  made

substantially the same  argument as they  make before this  court

(discussed below), and in both instances without any proffer that

they would be able to offer at a damages-phase trial any evidence

that would raise a genuine dispute of fact that might be resolved

by a factfinder in their favor.

          B.   The Alleged Need for a Jury Trial                                                          

          The  appellants argue that a jury  trial on damages was

necessary  to determine  how much  of each  fraudulent  claim was

                               -49-

legitimate,  that reported  losses were  merely exaggerated,  and

that Aetna's damages should be  limited to the difference between

the payment made by Aetna  and the actual loss to the  appellant.

Each  of these arguments fails because, as a matter of law, Aetna

is entitled to damages equal to the entire amount of its payments

on  fraudulent claims,  regardless of  any portion of  the claims

that might have  been shown  to be supportable  if no  fraudulent

enlargement of the claims had occurred.

          We put aside Aetna's  argument that appellants violated

the cooperation clause of the various policies under which claims

were made.  In part that clause provides:

               After  an  accident  or loss,  you  or
            anyone  else  covered  under this  policy
            must   cooperate   with    us   in    the
            investigation, settlement  and defense of                                                               
            any claim or lawsuit. . . .                                          

(App. 4800)(emphasis added).  Earlier automobile insurance policy

forms,  from which this language  in the Aetna  policies at issue

descended, contained an Assistance  and Cooperation Clause, as it

was then called.  That clause initially appeared among conditions

that  applied only to liability  coverages.  The  claims at issue

here  were  made  under  collision coverage.    No  Massachusetts

precedent has  explicitly determined  that this clause  in policy

forms like those at issue here applies to collision coverage.  In

these  circumstances, any  prediction about  whether the  Supreme

Judicial Court  will hold that  this clause applies  to collision

coverage is speculative, but  we need not make any  prediction on

this matter  in  order  to  decide  this  case.    We  assume  in

                               -50-

appellants' favor, without deciding,  that the cooperation clause

in  these Aetna policies does not apply to claims under collision

coverage.

          The "cooperation  clause," of  course, is not  the only

provision concerning  the obligations of  insureds and  claimants

after  an accident  or  loss.   Other  provisions concern  giving

notice and filing a proof of loss.

          Appellants  contend  that  one or  another  of  various

preclusion doctrines  of insurance law bars  Aetna from asserting

that making  a fraudulent  claim is  a violation  of  any of  the

provisions of the  policy under  which the  claim is  made.   One

reason  all of the appellants' preclusion  arguments fail is that

on  the facts of this case, as determined by supportable findings

of  the  jury,  every  claim   included  in  the  trial   court's

calculation  of  the  damages  award  has  been  found  to  be  a

fraudulent claim.  In addition, every claim for which the Arsenal

defendants  were held liable was made  within the scope of a RICO

substantive violation and a RICO  conspiracy, and every claim for

which  appellant  Arhaggelidis was  held  liable  was within  the

finding against her on the ground of civil conspiracy.

          A  claimant,   in  making   a  fraudulent  claim,   was

committing a material breach -- indeed, a most fundamental breach

-- of the  contract between Aetna and its  policyholder.  This is

true, of course, not only of a claim by the policyholder but also

of any claim under the policy by any other person entitled by the

terms of the policy to make a claim under the policy.

                               -51-

          A  breach  as  fundamental as  this  is  a  bar to  the

assertion of any further  rights under the contract by  the party

guilty of the breach.  This is a basic rule of contract law.  See                                                                           

E. Allan Farnsworth, Contracts 632-38 (2nd ed. 1990).  It applies                                        

to insurance contracts as well as other contracts.

          Appellants contend  that  one  or  another  of  various

preclusion  doctrines  developed distinctively  in  insurance law

nevertheless bars Aetna from asserting fraud by the appellants in

this  case.  This contention  fails because the  jury findings in

this case have  negated at least one of the essential elements of

each preclusion theory appellants attempt to invoke.

          The jury's findings negate the voluntary relinquishment

of known rights that  is characteristic of waiver in  the classic

sense,   the  detrimental   reliance  by   a  claimant   that  is

characteristic of  estoppel in  the classic sense,  the voluntary

choice of an  option that  is characteristic of  election in  the

classic  sense, and insurer  overreaching of a  less informed and

unequal  bargainer  that  is  characteristic of  cases  in  which

precedents  have stretched  doctrines  of waiver,  estoppel,  and

election beyond  their classic  meaning to favor  a disadvantaged

insured.

            See generally id.  at 92-102, 319-23,  586-                                       
          92;
            John S. Ewart, Waiver Distributed Among the                                                                 
          Departments:   Election,  Estoppel, Contract,                                                                 
          Release, 7-9, 84-87 (1917);                           
            John S. Ewart, Waiver or Election, 29 Harv.                                                       
          L. Rev. 724 (1916).

          Appellants   have   not   cited   any   precedent,   in

                               -52-

Massachusetts law or elsewhere,  that supports application to any

part  of the verdict and judgment in  this case of any preclusion

doctrine  establishing  rights in  favor  of  insurance claimants

beyond  those provided by the terms of the contract of insurance.

These terms  include the limitations,  conditions, and exceptions

as  well  as  its clauses  granting  and  defining  the scope  of

coverage.    Indeed,  in  view of  the  jury  finding  of a  RICO

substantive violation  with Aetna  as victim, if  there were  any

need or occasion  to invoke principles of  preclusion rather than

ordinary contract doctrine to decide this case, the record  would

be  more congenial  to preclusion  against a  fraudulent claimant

than to preclusion of any of Aetna's defenses.

          Although  the parties  have not  cited and  we  are not

aware  of any  Massachusetts precedent  directly  determining the

effect of  fraudulent claims and RICO violations upon the measure

of  recovery  to which  the  insurer  is entitled,  Massachusetts

decisions  on analogous  issues support  the judgment  entered in

this  case.   For example,  Massachusetts courts  have held  in a

number of different contexts that an insured who committed  fraud

either in  obtaining a policy or in  making a claim was precluded

from recovering on a claim under the policy.

            See  Airway  Underwriters  v.   Perry,  284                                                           
          N.E.2d  604  (Mass.  1972)(holding   that  an
          attempt   to  defraud   the  insurer   was  a
          violation of the policy's  cooperation clause
          and a clause stating that the policy was void
          in case of fraud,  and therefore insurer  was
          relieved of its  obligation to indemnify  the
          insured or defend on the insured's behalf);
            Bockser v. Dorchester Mutual Fire Ins. Co.,                                                                
          99  N.E.2d 640  (Mass. 1951)(holding  that an

                               -53-

          insured, whose property was destroyed by fire
          and  whose  agent  attempted to  defraud  the
          insurance company by exaggerating  the losses
          was  precluded from recovery under the policy
          in  light  of  a  provision   of  the  policy
          rendering  the  policy  void  if  the insured
          attempted  to  defraud  the   company  either
          before or after a loss).

          In addition, fraud on the part of a party to a contract

has been  determined to be a breach of the covenant of good faith

and fair dealing.   Glaz  v. Ralston Purina  Co., 509 N.E.2d  297                                                          

(Mass. App. Ct. 1987).

          The  appellants do  not contend  that the  amounts that

Aetna  paid out  on the  policies were  ever in  dispute.   These

amounts  were the only facts, in addition to the facts determined

by  the jury  in the liability  phase, that were  material to the

court's judgment.  Although  there may have been some  dispute as

to  the  existence  and  extent  of  any  actual  losses  by  the

defendants, any dispute about these facts was not material to the

judgment because the appellants' fraud (by either exaggerating or

completely fabricating  losses) precluded them from asserting any

right to recover for actual losses under the insurance contracts.

Since no  triable fact disputes remained, the appellants were not

denied their right to  a jury trial.  The  court's determinations

of the sums  certain to  be awarded against  the defendants  were

properly made as matters of law  -- that is, by the judge without

submission to a jury.

                      VIII.  ATTORNEYS' FEES                                VIII.  ATTORNEYS' FEES

          As  a part of the  judgment in this  case, the district

                               -54-

court awarded  $1,500,000 in costs, expenses,  disbursements, and

attorneys'  fees  to  the plaintiff.    Under  the  terms of  the

judgment,  each  individual  Arsenal  defendant  is  jointly  and

severally liable for the entire amount of $1,500,000.

          The  sole challenge in this appeal to this award or the

amount  of it  is  that the  Arsenal  appellants argue  that  the

district  court  improperly held  them  liable for  not  only the

attorneys' fees  expended in  this case but  also the  attorneys'

fees  expended in  a  related case  entitled  Aetna Casualty  and                                                                           

Surety Co. v.  Sport Auto  Body, Inc., No.  91-11718 (the  "Sport                                                                           

case").  In the  Sport case, Aetna alleged that Sport  Auto Body,                                

Inc. and  its operators  were a part  of the  same conspiracy  to

defraud Aetna, which included Arsenal Auto and the other autobody

shops.  The Sport case was consolidated with this case on May 17,                           

1992.  Subsequently, the Sport defendants defaulted and the Clerk                                        

entered judgment against them.

          The   appellants  argument  fails   because  18  U.S.C.

 1964(c) authorizes the recovery of reasonable attorneys' fees by

a prevailing plaintiff in a civil RICO case.  18 U.S.C.  1964(c).

Since  the  Sport case  was  consolidated  with this  action  and                           

judgment  was  entered  against  the  Sport  defendants  and  the                                                     

individual Arsenal  defendants for the same  RICO violations, the

district court correctly held  the Arsenal defendants jointly and

severally liable for reasonable attorneys' fees expended by Aetna

for   the   entire  suit.      Arsenal   appellants  argue,   but

unconvincingly, that the district court's order of  consolidation

                               -55-

did not extend to the phased trial.  The district court  rejected

the argument, and we find no abuse of discretion in this ruling.

                    IX.  PREJUDGMENT INTEREST                              IX.  PREJUDGMENT INTEREST

          Raising  this issue for the first time in a reply brief

on appeal, appellant Jack  Markarian challenges the inclusion, in

the judgment against  him, of prejudgment interest  on the treble

damages awarded under the  RICO claims.  He argues that since the

treble  damages  are punitive  in  nature  and not  compensatory,

prejudgment interest is inappropriate.

          The appellant failed to raise the issue either at trial

or even  in his opening  brief, which was submitted  on behalf of

all  the  Arsenal  defendants.    The  first  statement  of  this

contention appears in this appellant's  reply brief, filed on his

behalf  by  new  counsel  representing  him  alone.    In   these

circumstances,  we hold that he has failed to preserve this issue

for appeal.

            American Automobile Manufacturers Assoc. v.                                                              
          Commissioner,  31  F.3d   18,  25  (1st  Cir.                                
          1994)(appellant failed to preserve  issue for
          appeal when the argument was first raised  in
          his reply brief);
            Frazier v. Bailey,  957 F.2d 920,  932 n.14                                       
          (1st. Cir. 1992)(same);
            Pignons  S.A.  de  Mecanique   v.  Polaroid                                                                 
          Corp., 701 F.2d 1, 3 (1st Cir. 1983)(same);                         
            see also McCoy  v. Massachusetts  Institute                                                                 
          of  Technology, 950  F.2d  13, 22  (1st. Cir.                                  
          1991), cert. denied, 112 S.Ct. 1939(1992)("It                                       
          is  hornbook law  that  theories  not  raised
          squarely  in  the  district court  cannot  be
          surfaced for the first time on appeal.").

          "[A]n appellee is entitled to rely on the content of an

appellant's [opening]  brief for  the scope of  issues appealed."

                               -56-

Pignons S.A., 701 F.2d at 3.    When an argument is  first raised                      

in  a  reply  brief,  the  appellee  is  not  given  an  adequate

opportunity to  respond.  See  Sandstrom v.  Chemlawn Corp.,  904                                                                     

F.2d  83, 87 (1st Cir. 1990).   Moreover, the court of appeals is

deprived  of  the  benefit  of  written  submissions by  all  the

parties.  Id.                      

          This   court   has  recognized   that   if  exceptional

circumstances are shown,  an issue may be considered  even though

it has not been timely raised.

            Id. (citing United States v. LaGuardia, 902                                                            
          F.2d 1010, 1013 (1st Cir. 1990)).  

Such  exceptional circumstances  include arguments  that are  "so

compelling  as virtually  to insure  the appellant's  success" or

arguments  that  must be  ruled upon  to  avoid a  miscarriage of

justice.

            Johnston  v. Holiday  Inns, Inc.,  595 F.2d                                                      
          890, 894 (1st Cir. 1992).

          The argument presented  by appellant Jack Markarian  is

not  one  that  satisfies  this standard.    A  district  court's

decision to  award prejudgment interest under  RICO is ordinarily

subject to review under the "abuse of discretion" standard.

            Cf.  Earnhardt  v.  Commissioner of  Puerto                                                                 
          Rico, 744 F.2d 1,  3 (1st Cir. 1984)(abuse of                        
          discretion  standard  is applied  to district
          court's decision whether to award prejudgment
          interest in a Title VII case);
            see  also  Abou-Khadra v.  Mahshie,  4 F.3d                                                        
          1071, 1084 (2nd Cir. 1993), cert. denied, sub                                                                 
          nom.  Bseirani  v.  Mahshie,  114  S.Ct. 1835                                               
          (1994)  ("Since the  RICO  statute  does  not
          contain any provisions  concerning the  award
          of prejudgment interest,  the district  court
          had discretion  as to  whether to  award such

                               -57-

          interest.");
            Louisiana Power and Light Co. v. United Gas                                                                 
          Pipe  Line Co.,  642 F.  Supp. 781  (E.D. La.                                  
          1986)(same).

          We  recognize   that  there   is  some  force   in  the

appellant's  argument   that  the   district  court   abused  its

discretion  in  awarding  prejudment  interest.    The  appellant

reasons  that  treble  damages  under  RICO  constitute  punitive

damages, and that since  prejudgment interest on punitive damages

is ordinarily inappropriate, the district court erred in awarding

prejudgment interest in this case.

            Cf.  McEvoy Travel  Bureau, Inc.  v. Norton                                                                 
          Co., 563 N.E.2d 188, 196 (Mass. 1990)(holding                       
          that  prejudgment  interest  should   not  be
          awarded  in  Mass.  Gen.  L.  ch.  93A  cases
          because  multiple  damages  are  punitive  in
          nature); 
            Wickham Contracting Co.  v. Local Union No.                                                                 
          3,  Int'l Brotherhood  of Elec.  Workers, 955                                                            
          F.2d  831, 834 (2nd  Cir.), cert. denied, 113                                                            
          S.Ct. 394  (1992)(prejudgment interest should
          not be  awarded when damages  are punitive in
          nature).

It may  reasonably  be argued,  however,  that RICO  damages  are

primarily  compensatory in nature,  and thus prejudgment interest

was properly awarded.

            Cf.  Liquid Air  Corp. v. Rogers,  834 F.2d                                                      
          1297, 1310 (7th Cir. 1987),  cert. denied 492                                                             
          U.S. 917 (1989)("Although there is some sense
          in  which RICO  treble damages  are punitive,
          they are largely compensatory in the  special
          sense that  they ensure that  wrongs will  be
          redressed   in   light   of  the   recognized
          difficulties of itemizing [the damages caused
          from racketeering activity].").

Thus,  the appellants' argument is not so compelling as to ensure

the  appellant's success.  Nor is his argument so clearly correct

                               -58-

that  a failure to rule in his  favor on this issue constitutes a

miscarriage of justice.   Therefore, the appellant cannot prevail

under the Johnston standard.                            

                          X.   SEVERANCE                                    X.   SEVERANCE

          The Arsenal defendants  challenge the district  court's

denial  of  their  motion for  a  mistrial at  the  close  of the

plaintiff's evidence.  They argue that the district  court should

not  have tried the case  against all fourteen  defendants in the

same  proceeding because of the potential for jury confusion.  In

addition, the Arsenal defendants  argue that they were prejudiced

by the jury's hearing evidence concerning the other defendants.

          A mistrial need  not be allowed absent a  clear showing

of prejudice.   United States v. Schlamo, 578 F.2d  888, 891 (1st                                                  

Cir.  1978).   We  review  the  mistrial  ruling  for  "abuse  of

discretion."   United States v.  Dockray, 943 F.2d  152, 157 (1st                                                  

Cir. 1991).

          The defendants'  challenge to the trial court's failure

to sever fails in this instance for several reasons.

          First.    The  Arsenal  defendants never  moved  for  a                         

separate  trial of  the claims  against them.   Before  the trial

began, they were  fully aware that all the defendants  were to be

tried together and were informed of the identity of every witness

to  be called and every exhibit to  be offered.  Absent a showing

of materially  changed circumstances  after the trial  began, the

Arsenal defendants'  failure to  move for severance  before trial

began precludes both their motion at the close of the plaintiffs'

                               -59-

evidence and  their challenge before this court.   Absent special

circumstances,  a party  is required  to object  to an  allegedly

erroneous  or  prejudicial  procedure  while  the  court  has  an

opportunity to correct it.

            Cf. Computer Systems  Engineering, Inc.  v.                                                             
          Qantel  Corp.,  740  F.2d 59,  69  (1st  Cir.                                 
          1984)("A party may  not wait and  see whether
          the  verdict is favorable  before deciding to
          object.");
            see  also Harris v.  Chanclor, 537 F.2d 203                                                   
          (5th Cir. 1976)(a motion for new trial on the
          grounds that the  defendant should have  been
          given a separate trial was properly denied in
          light of the  defendant's failure to  press a
          pre-trial motion to sever).

          Second.  The defendants have not made the clear showing                          

required  to support  a determination  that the  district court's

denial of a mistrial  was an abuse of  discretion.  No  appellant

has shown any prejudice from having all the claims at issue tried

together.   No basis  appears in  the  record for  this court  to

conclude  that  the jury  was unable  to differentiate  among the

defendants  and  to distinguish  the  evidence  relating to  each

defendant.   Moreover,  the district  court's  jury  instructions

cautioned the jury to consider the claims against each  defendant

separately,  thus giving  added protection against  any potential

prejudice.

            See United States v.  Chamorro, 687 F.2d 1,                                                    
          6  (1st Cir.),  cert.  denied, 459  U.S. 1043                                                 
          (1982)(cautionary jury instructions dispelled
          any significant risk of unfair prejudice).

In  fact, the  jury  found some  defendants  liable on  specified

theories and found other defendants not liable on those theories,

thus  reinforcing  the inference  that  the  jury understood  its

                               -60-

responsibility and was not confused by the size and complexity of

the case.

            Cf.  United States  v.  Figueroa, 976  F.2d                                                      
          1446, 1452 (1st Cir. 1992), cert. denied, 113                                                            
          S.Ct.   1346   (1993)  (acquittals   of  some
          defendants  on  some  counts was    a  factor
          relevant to  decision to uphold  a denial  of
          severance).

          Third.   Viewing the motion for a mistrial at the close                          

of the  defendant's evidence as  a delayed  motion for  severance

does not change the result.   This court will reverse a  district

court's refusal to sever only upon a finding of manifest abuse of                                                                  

discretion.

            See  United  States  v. Olivo-Infante,  938                                                           
          F.2d 1406, 1409 (1st Cir. 1991).

The appellants  "must demonstrate that the  joint trial prevented

the jury from separating the evidence against  each defendant and

reaching a reliable verdict."

            United States v. Brandon,  17 F.3d 409, 440                                              
          (1st  Cir.),  cert.   denied,  115  S.Ct.  80                                                
          (1994).

          Again,   the  jury's  verdict   shows  that   the  jury

considered the evidence against each defendant separately.

          Also, we  reject the  appellants'  suggestion that  the

district court's dismissal of  Count VII (asserting a substantive

RICO violation allegedly involving an overall association-in-fact

enterprise) was an indication of the appropriateness and need for

a separate  trial.   The district  court  denied the  defendants'

motion  for judgment  as a matter  of law  on Count  IX (the RICO

conspiracy) and  Count VIII (the RICO  substantive violation with

                               -61-

Aetna  as  the enterprise),  and  the jury  ultimately  found the

defendants  liable  on  these  theories.   Severing  the  Arsenal

defendants would  have  required  Aetna  to present  all  of  the

evidence twice in order to prove the scope of the same fraudulent

scheme in each of two separate  trials.  The court's dismissal of

Count VII  in no way, either explicitly or implicitly, determined

that a separate trial was  needed for any of the  multiple counts

remaining after the dismissal.

          Appellant Arhaggelidis is another  party who asserts on

appeal  that  the district  court failed  to  provide her  with a

separate  trial.  She, too, is precluded from arguing this ground

before this court  because she did not move  for a separate trial

until after the  trial had  been completed.   Having never  moved

before the verdict  for a  separate trial for  herself alone,  or

even  for the Rodco/P&amp;B Autobody defendants as a group, she is in

no position  to complain now that  she should have been  the sole

defendant  in a  separate  trial.   Taking  her argument  to  its

logical  conclusion,  that  each  defendant  should  have  had  a

separate trial, would  require that Aetna  present and the  court

hear the  same evidence  up  to fourteen  times --  one for  each

defendant who chose to go to trial.  No more need be said.

                    XI.   PRETRIAL ATTACHMENTS                              XI.   PRETRIAL ATTACHMENTS

          The   Arsenal  defendants   argue  that   the  pretrial

attachments obtained by Aetna in  the district court violated due

process.    Their  challenge  of  the  pretrial  attachments  was

rejected  six times at the  district court level.   The challenge

                               -62-

fails again, for several reasons.

          First.    The  appellants' reliance  upon  the  Supreme                          

Court's  decision in  Connecticut  v. Doehr,  501 U.S.  1 (1991),                                                     

holding that  the  Connecticut attachment  statute  violated  due

process,  is not well-founded.   The procedure used  in this case

was  based on  the Massachusetts  Rules of Civil  Procedure; that

procedure  and  its  implementation   by  the  magistrate   judge

comported  with  due process  and  was  entirely consistent  with

Doehr.               

            See  Digital  Equipment  Corp.   v.  Currie                                                                 
          Enterprises,  142  F.R.D.  16, 26  (D.  Mass.                               
          1992)(upholding    Massachusetts   attachment
          statute against due  process challenge  under
          Doehr).                         

Although  the attachments  were issued  ex parte,  the plaintiffs

made  the  requisite showing  of an  exigent  circumstance --   a

clear danger that, if  notified in advance, the defendants  would

convey the property or remove it from the state.

            Doehr, 501 U.S.  at 16 (recognizing that  a                           
          properly  supported   "allegation  that  [the
          defendant] was about  to transfer or encumber
          his   real  estate"   would  be   an  exigent
          circumstance permitting ex parte attachment).
          Second.   Although the assets were first attached by an                           

ex  parte  proceeding, the  magistrate  judge  later conducted  a

lengthy  hearing at which the appellants were afforded "more than

adequate due process."  (Magistrate's  Order Re: Second Motion to

Dissolve  Ex Parte  Attachments, App. 852)   As a  result of this

hearing,  the  magistrate  judge  determined  that  the  pretrial

attachments   should  not  be  dissolved.     Id.    Judge  Young                                                           

subsequently denied the appellants  motion for reconsideration of

                               -63-

the magistrate judge's decision,  implicitly determining that any

possible defect in the ex parte procedure was irrelevant in "view

of  the   extensive  hearing  held  by   the  magistrate  judge."

(Endorsed Order, App. 903.)

          Third.   The conclusion that appellants'  have no basis                          

for relief from the  attachments at this time is  reinforced upon

the  rejection of other contentions  on this appeal  and upon the

affirmance of  the final  judgment against the  defendants in  an

amount greatly in excess of the value of the attached assets.  In

light of their joint and several liability for $2,369,901.72,  no

basis remains, if ever there   was one, for an argument  that the

attachment of  their assets should  now be vacated.   Determining

what  process  is  due  in  pre-judgment  attachment  proceedings

requires a consideration of the risk of  an erroneous deprivation                                                               

of  property.  See Doehr, 501 U.S. at 12.  With the affirmance of                                  

the judgment against all attacks on other grounds, no longer will

there  be  any such  risk.   Aetna  has prevailed  and subsequent

events  have  demonstrated  that  no  unwarranted deprivation  of

property occurred.

               XII.   ALLEGED PLEADING DEFICIENCIES                         XII.   ALLEGED PLEADING DEFICIENCIES

          The  appellants challenge  the verdict  entered against

them on Count VI, which alleged a substantive RICO violation with

Arsenal  Auto Repairs, Inc. as  the enterprise.   They argue that

the  district  court erred  by not  granting their  Rule 12(b)(6)

motion to dismiss Count  VI of the amended complaint  for failure

                               -64-

to state a cause of action.

          The appellants' argument is  based on what Aetna claims

is a  typographical  error.    Appellants argue  that  they  were

confused by paragraph 460 of the amended complaint, which alleges

that "[e]ach  of the individual  policyholder/claimants named  in

paragraph 38"  participated in the conduct  of Arsenal's affairs.

Paragraph 38 names  Vachig Petrosyans,  but none  of the  Arsenal

appellants.  Appellants  imply that they were prejudiced  by this

error because they had to "guess" at the meaning of Count VI.

          The  appellants'  argument,   which  the  trial   court

rejected four times, fails  again.  Paragraph 459 of  the amended

complaint clearly  alleges that Tareh  Tirinkian, Lena Tirinkian,

Peter Markarian, and  Jack Markarian conducted  Arsenal's affairs

through a pattern of racketeering activity.  The appellant cannot

deny that Count VI was directed towards these four defendants.

          Although  Count  VI  does   not  expressly  name  Tarja

Markarian, the fifth individual Arsenal  defendant, paragraph 460

does refer to "individual policyholders/ claimants" and paragraph

42 states that Tarja Markarian was a policyholder associated with

Arsenal Auto.   Therefore,  appellants' assertion that  they were

confused  is  both  unreasonable  and  unpersuasive.    Moreover,

Aetna's  Pretrial  Statement of  Claims  and  Damages, which  was

submitted four  months  before trial,  states  that Count  VI  is

directed against the five individual Arsenal defendants and lists

them by name.   In these circumstances, the appellants  never had

any basis for asserting that they were prejudiced at trial by any

                               -65-

confusion purportedly caused by the amended complaint.

              XIII.  COURT'S ANSWER TO JURY QUESTION                        XIII.  COURT'S ANSWER TO JURY QUESTION

          The  Arsenal appellants challenge  the judgment against

them on Count  VIII, the RICO substantive  violation with Arsenal

as the enterprise, on the ground that the judge, in response to a

question by  the jury during their  deliberations, instructed the

jury  that the  Arsenal  defendants  were  not  part  of  such  a

conspiracy.

          Only  one sentence  of the appellants'  brief addresses

this  issue.  The appellant provides no argument or authority for

its 

proposition.    This court  has previously held  that an argument

that is presented in  "such a cursory and mechanical  fashion" is

rendered unpreserved on appeal.

            Gamma Audio  &amp; Video, Inc.  v. Ean-Chea, 11                                                             
          F.3d  1106,  1112 (1st.  Cir.  1994)("We have
          consistently  admonished litigants  that they
          cannot  simply  present  this  court  with  a
          shopping list of arguments and then expect up
          to both develop and address each one.");
            Ryan v.  Royal Ins. Co., 916  F.2d 731, 734                                             
          (1st  Cir.  1990)("[I]ssues  adverted  to  on
          appeal in a perfunctory manner, unaccompanied
          by some developed  argumentation, are  deemed
          to have been abandoned.").

Similarly, the appellants have  not properly preserved this issue

before this court.

          Although the appellants are not entitled to a ruling on

this matter,  we note in any  event that no basis  for any relief

appears in the record.  In  response to a written question by the

jury, the court  instructed the  jury again on  the various  RICO

                               -66-

theories alleged by Aetna  and used a diagram to  illustrate some

aspects of his instruction.  Although it is not clear what aspect

of  the response by the  court the appellants'  are attempting to

put  in issue,  our examination  of the  record reveals  that the

appellants'  have mischaracterized or  grossly misinterpreted the

court's response to the jury's question.

          From  the  record, it  appears  that the  court  drew a

diagram representing  the different enterprise theories  that had

been submitted  to the jury.  Although  the record before us does

not  include this  diagram, the record  does include  the court's

oral instructions.

          One of the theories  submitted to the jury, but  not at

issue in this  appeal, was that  two or more  of the body  shops,

other than  Arsenal Auto Repairs, Inc.,  constituted the "Allston

group" enterprise.   The Arsenal defendants were never alleged to

be part of the "Allston group."  Therefore, the court pointed out

that the defendants associated with the body shops that allegedly

constituted  the  "Allston group"  did  not  include the  Arsenal

defendants.    The court's  description  of  the "Allston  group"

theory had no bearing on the Arsenal defendants.  Nothing  in the

court's detailed  response to the jury's  question indicated that

the  Arsenal defendants were not  alleged to have participated in

the  affairs of the Aetna enterprise.  In these circumstances, we

discern no basis to  conclude that the trial court's  response to

the  jury's question  was inconsistent  with the  court's earlier

instructions  to the jury, or with the court's earlier rulings on

                               -67-

the  theories to be  submitted to the  jury, or with  the verdict

ultimately rendered.   Thus, the appellants could  not prevail on

this issue even if they had preserved it.

                  XIV.  SUFFICIENCY OF EVIDENCE                            XIV.  SUFFICIENCY OF EVIDENCE

          A.   The Arsenal Appellants                                               

          Having addressed  in Parts III.C and  III.D, supra, the                                                                      

Arsenal  appellants'  arguments  with  respect  to  the  elements

necessary to prove liability  for each of the two  RICO offenses,

we  turn  here to  the evidence  against  each of  the individual

Arsenal  defendants.   In  addition to  the  explanation in  Part

III.D,  supra, of the evidence  of RICO conspiracy,  we note here                       

that there was sufficient evidence against each defendant for the

jury to find  that each defendant conspired to violate  RICO.  We

also  conclude  that the  evidence  of an  ongoing  succession of

fraudulent  claims   was  sufficient  to   meet  the   continuity

requirement necessary  to establish  a  pattern of  racketeering.

Although  the  jury found  that  sixteen Aetna  claims  that were

connected with  the Arsenal defendants were  fraudulent, only two

predicate  acts   are  necessary  to  constitute   a  pattern  of

racketeering.   Thus, we need  only to conclude,  with respect to

each  Arsenal defendant,  that there  was sufficient  evidence to

support  findings of the fraudulent nature of two claims in which

the defendant was involved.

            1.  Zareh Tirinkian                                         

          With respect to Mr. Tirinkian, there was ample evidence

of mail fraud.   Mr. Tirinkian  was a key  figure of the  Arsenal

                               -68-

branch of  the RICO  conspiracy.  As  owner and  operator of  the

Arsenal Body Shop, he was directly involved in all aspects of the

fraudulent  scheme.   Automobiles  were  appraised  and allegedly

repaired at his shop.  On behalf of Arsenal Auto, Mr. Tirinkian's

name appears on appraisal forms,  agreeing, on behalf of  Arsenal

Auto,  to perform  repair  work.   As  either  an insured,  or  a

claimant, or a person  aiding an insured or claimant  under Aetna

policies, Mr.  Tirinkian submitted fifteen insurance  claims that

the jury found to be fraudulent.

          In  1988, Mr.  Tirinkian  submitted a  claim to  Aetna,

stating that his 1976 Rolls Royce was  hit from behind and forced

into a guardrail by an unknown vehicle.  Mr. Tirinkian claims  to

have  driven home after this alleged accident.  Dexter, the Aetna

appraiser, determined that the  car needed  $6,780.92 in repairs.

When  called for  a second  appraisal, Dexter determined  that in

fact it needed $12,023.00 in repairs,  $8,090.17 for parts alone.

At  trial, Mr. Tirinkian conceded that the only part he purchased

was  an axle  for  $300.   From  this  evidence, the  jury  could

reasonably find that Mr. Tirinkian submitted a fraudulent claim.

          In  1989, Mr.  Tirinkian reported  that his  1976 Rolls

Royce struck the back of a  BFI garbage truck that sped off after

the collision.   Mr. Tirinkian received  payment of $20,000  from

Aetna for this claim.  The record contains, in addition to  other

evidence  presented  at  trial  supporting  the  suggestion,  the

testimony of  an expert  witness in accident  reconstruction, who

said that  BFI operated no  truck "that matched  in any shape  or

                               -69-

form  the damage that [he] saw on  this Rolls Royce."  The expert

testified  also  that  the damage  must  have  been  caused by  a

person's striking the car,  or driving it into other  objects, at

least seven times,  at different  angles and speeds.   From  this

evidence,  the  jury could  reasonably  find  that Mr.  Tirinkian

submitted a fraudulent claim to Aetna.

          Since the  jury reasonably could have  found that these

two   related  acts  of  mail  fraud  constituted  a  pattern  of

racketeering activity, Mr. Tirinkian's  liability on the theories

of RICO conspiracy (Count IX) and RICO substantive violation with

Aetna as the enterprise (Count VIII) is established.

            2.  Lena Tirinkian                                        

          Ms. Tirinkian  was an officer of  Arsenal Auto Repairs,

Inc.  She testified that she performed bookkeeping and accounting

for Arsenal  Auto, dealt  with insurance companies,  and received

checks  from them.  From her proximity to the Arsenal operations,

taken together with other evidence, the jury could infer that she

conspired  with  her husband  and  other  defendants.   Like  Mr.

Tirinkian, Ms. Tirinkian was involved in several claims that  the

jury found  to be fraudulent.  A  finding that she committed mail

fraud with respect to  two or more related claims  would support,

in  turn, the  finding that  Ms. Tirinkian  violated   1962(c) by

knowingly participating in the affairs of Aetna through a pattern

of racketeering  activity.  We summarize the evidence against Ms.

Tirinkian with respect to two claims.

          The Tirinkians  allege that Ms.  Tirinkian's 1979 Rolls

                               -70-

Royce  was damaged  twice during transport  by Forge  Motors Auto

Transport -- while being shipped  to the Tirinkian's Florida home

in the fall of 1988 and while being shipped back to Massachusetts

in the spring of 1989.  The second  claim to Aetna alleged that a

$3,306.95 headlight  switch  was damaged  in  transit.   Yet,  at

trial, the  owner of Watertown Foreign Car Center, Inc. testified

that he had noticed that the headlights were not working sometime

in the fall of 1988 and suggested to Mr.  Tirinkian that he get a

new headlight switch.

          It is  Aetna's practice to require the  insured to sign

completed work  forms before obtaining  payment from Aetna.   Ms.

Tirinkian  signed the completed work forms  relating to these two

claims  on her  1979 Rolls  Royce.   The forms  stated  that "all

damage to my auto was repaired in accordance with the appraisal."

At  trial Ms. Tirinkian testified  that she never  saw the damage

allegedly sustained by this vehicle, nor did she ever see the car

at  Arsenal Auto or  any other auto  repair shop.    She admitted

that  she endorsed and deposited  in her bank  account the checks

she received from Aetna  with respect to these claims.   Although

the completed work form  with respect to the second  claim stated

that the repairs were completed by Watertown Foreign  Car Center,

Inc.,  the  owner of  that shop  testified  that no  repairs were

completed there.    From this  and other  evidence introduced  at

trial,  the  jury  reasonably   could  find  that  Ms.  Tirinkian

defrauded  Aetna  by submitting  these  two false  claims  on her

automobile.

                               -71-

          Evidence of these two acts of mail fraud, among others,

supported a jury finding of a pattern of racketeering activity by

Ms. Tirinkian from which  the jury could find that  Ms. Tirinkian

violated  1962(c)  and (d).   Thus,  the district court  properly

denied Ms. Tirinkian's motion for judgment as a matter of law.

            3.  Jack Markarian                                        

          Jack  Markarian, brother  of  Lena  Tirinkian,  was  an

officer  and employee of Arsenal Auto Repairs, Inc.  He testified

at  trial  that  he  performed  repairs  and  managed  the  other

employees performing  repairs, and that Mr.  Tirinkian did mostly

paperwork.  Given evidence  that he was in charge of  repair work

at Arsenal Auto  where many of the cars that  were the subject of

fraudulent  claims were  appraised and purportedly  repaired, the

jury  could infer that he knew and participated in the fraudulent

scheme and conspired with his brother-in-law and others.

          In a reply  brief filed  on his behalf  by new  counsel

representing him alone, appellant  Jack Markarian argues that the

district court  improperly denied  the motion  for judgment  as a

matter of law with respect to him.  He distinguishes himself from

the  other defendants  in that he  was neither  an insured  nor a

claimant with respect  to any of the claims the  jury found to be

fraudulent.  His  strongest argument is that the plaintiff failed

to  establish that  he  committed or  agreed  to commit  the  two

predicate  acts necessary  for a  jury to  find him  liable under

either   1962(c)  or (d).   After  close scrutiny,  however, this

argument fails along with all others made on his behalf.

                               -72-

          It was not  necessary for  the jury to  find that  Jack

Markarian  committed mail  fraud  as a  principal.   Under  RICO,

aiding or abetting the commission of mail fraud  also constitutes

a  "predicate act," because aiding  and abetting mail  fraud is a

violation  of  1341, the  mail fraud statute  itself.  Therefore,

all  we have to decide  is whether there  was evidence sufficient

for  the jury to conclude  that Jack Markarian  aided and abetted

another Arsenal defendant in  the commission of two acts  of mail

fraud.

          From  Jack  Markarian's formal  position  and extensive

involvement in the everyday operations  of Arsenal Auto, the jury

reasonably could infer that Jack Markarian aided and  abetted his

friends  and relatives  in  submitting fraudulent  claims.   This

inference is  supported as well by  other circumstantial evidence

introduced at trial.

          One example  is that  Jack Markarian testified  that he

was at  Arsenal Auto when the 1976 Rolls Royce was towed in after

allegedly hitting the BFI truck  and that he "went over"  the car

with the Aetna appraiser who arrived  later.  Given the fact that

Markarian  placed himself at the scene with the 1976 Rolls Royce,

the jury could infer that he  helped to inflict damage on the car

before  the arrival  of the  Aetna appraiser,  who this  time was

neither  Dexter nor Cummings, or that at the least Jack Markarian

knew about and helped to conceal from the appraiser what had been

done.

          Another  example  concerns  a  check  written  by  Jack

                               -73-

Markarian.  At  trial Jack Markarian was asked  about a check for

$9,000 that he wrote to Mr. Keshishian, a person who was involved

with  two of the allegedly fraudulent  claims submitted to Aetna.

Mr. Markarian testified that this check was a loan.  Similarly, a

payment previously made by  Keshishian's brother to Tirinkian for

$13,000 had  been explained as a  loan, but was made  on the same

day  that Mr.  Keshishian  received a  payment  from Aetna  on  a

fraudulent claim  he had  submitted on an  automobile purportedly

repaired  at  Arsenal  Auto.     The  jury,  not  believing  this

explanation, could have inferred that the payment by Keshishian's

brother  to  Tirinkian  was  a kickback.    Similarly,  the  jury

reasonably could choose to discredit Jack Markarian's explanation

for  his own  $9,000 payment  and infer  that Jack  Markarian was

providing a kickback to Mr. Keshishian in connection with another

fraudulent claim.  Thus, the jury could infer that Jack Markarian

aided and abetted the commission of a fraud upon Aetna.

          In   many   respects,   Jack    Markarian's   testimony

corroborated that  of his  brother-in-law, Zareh Tirinkian.   For

example, Jack Markarian testified  that he saw his brother-in-law

working on the 1976 Rolls Royce after the "guardrail" accident in

June 1988, and  even stated that he himself had  done some of the

repair  work.   Jack  Markarian  also testified  that  the reason

Arsenal did  not  make available  any  autobody shop  records  or

documents  for discovery or at trial was that they were destroyed

by  flooding in the  autobody shop.   The jury  could infer, from

Jack Markarian's willingness to corroborate  his brother-in-law's

                               -74-

story,  which the jury appears  to have discredited,  that he was

actively involved in the racketeering activities of Arsenal Auto.

          As the head of repairs at Arsenal Auto,  Jack Markarian

stood to benefit from Arsenal Auto's obtaining payment from Aetna

for  work that  was never  performed.   At trial,  Jack Markarian

testified that he  and his  employees repaired many  of the  cars

that the plaintiff  alleged, and offered  evidence to show,  were

never  damaged.  He also  testified to the  general procedure for

dealing with insurance companies,  appraisers, and customers when

an accident occurs.  The jury  could infer that, in his  position

at Arsenal  Auto, Jack Markarian frequently  met with appraisers,

including  Cummings  and  Dexter,  and  discussed  estimates  for

repairs.  The jury  could infer that Jack Markarian, in this way,

aided  and  abetted  his  friends  and  relatives  in  submitting

fraudulent claims to Aetna.

          Despite  appellant Jack  Markarian's assertions  to the

contrary, the record contains ample evidence for the jury to find

that he  aided and  abetted others  in filing  fraudulent claims,

thereby  committing two  or  more predicate  acts constituting  a

pattern of racketeering activity.  Therefore, the jury reasonably

could find  that Jack Markarian  participated in  the affairs  of

Aetna, the  enterprise, in the substantive  violation of  1962(c)

and  in the RICO conspiracy  in violation of   1962(d), through a

pattern of racketeering activity.

            4.  Peter and Tarja Markarian                                                   

                               -75-

          Appellant Peter Markarian,  brother of Lena  Tirinkian,

was  an employee  of  Arsenal  Auto  during  the  course  of  the

conspiracy  except for six months during 1988.  He testified that

he  had done automobile repair work since  he was a teenager.  He

also testified  that when  he was  at Arsenal  Auto he  would see

Dexter and Cummings, the Aetna appraisers, as frequently as twice

a week.

          Appellant  Tarja   Markarian  is  the  wife   of  Peter

Markarian and  co-owner of their  1970 Mercedes.   Tarja admitted

that  she  sometimes  worked   at  Arsenal  Auto  Repairs,  Inc.,

answering phones and running errands.

          The evidence  shows that  Peter Markarian and  his wife

Tarja Markarian submitted  six claims on  their Mercedes, two  of

which were to Aetna, within  a span of three years, from  1986 to

1988.  The jury found four of these claims to be fraudulent.

          The  first  claim  the  Markarians  reported  to  Aetna

alleged  that their  car  was damaged  while  parked at  a  movie

theater.   The description of the damage to the car was identical

to that alleged in a previous claim to another insurance company.

Six  months later,  the Markarians  submitted a  second claim  to

Aetna  alleging that  their  Mercedes had  been vandalized  while

parked at  the Burlington  Mall.   Fifteen months earlier,  Peter

Markarian's  sister, Ms.  Garabedian,  had submitted  a claim  to

Aetna alleging that her Mercedes had been vandalized while parked

at the Burlington Mall.

          Peter  Markarian testified  that  he repaired  the  car

                               -76-

after  both alleged  claims and that  he purchased  the necessary

parts  with  cash.   He  was  unable  to provide  any  records or

receipts of such purchases.  Tarja Markarian signed the completed

work  forms for both sets of repairs.   Each form stated that the

repairs  were completed by Arsenal  Auto.  She  also endorsed and

deposited  the checks  from Aetna  to the Markarians  relating to

these  claims.  At trial,  Tarja Markarian admitted  that she had

never seen the damage on  the car and had never seen  any repairs

being  made.  An Aetna investigator who examined the car pursuant

to a court-ordered  inspection, testified at  trial that many  of

the alleged repairs  had never  been made  and that  some of  the

alleged damage never occurred.

          From the  evidence concerning these two  claims and the

evidence  concerning the  Markarians'  claim  history,  the  jury

reasonably could  infer that  the Markarians participated  in the

affairs  of Aetna  through  a pattern  of racketeering  activity,

consisting of acts of mail fraud, in violation of  1962(c).  From

Peter Markarian's employment at Arsenal Auto and his relationship

with  the Aetna  appraisers,  the  jury  could infer  that  Peter

Markarian  conspired with  the other  defendants in  violation of

 1962(d).  Similarly, from Tarja Markarian' false representations

with respect to the Aetna claims and her work, albeit limited, at

Arsenal  Auto, the jury could  infer that she  conspired with her

husband and other Arsenal defendants and was a member of the RICO

conspiracy.

          B.   Betty Arhaggelidis                                           

                               -77-

          Much   of  the   evidence   against   appellant   Betty

Arhaggelidis has been  described in  Part III.E, supra.   We  add                                                                

here, some  additional details that further  demonstrate that the

evidence supported the jury's findings.

          In addition  to finding  that Mr. and  Ms. Arhaggelidis

acted  in concert,  the  jury  reasonably  could  find  that  Ms.

Arhaggelidis actively  committed common  law fraud by  submitting

false claims  to Aetna.  To  establish fraud (the tort  of common

law  deceit), the plaintiff must  show that the  defendant made a

false statement of material fact with knowledge of its falsity in

order  to  induce  the  plaintiff  to  act,  and  that  plaintiff

justifiably  relied on  the  false statement  to the  plaintiff's

detriment.   Danca v. Taunton Savings Bank, 429 N.E.2d 1129, 1133                                                    

(Mass. 1982).

          Betty  Arhaggelidis used  two cars  to obtain  payments

from Aetna.  The title to one of the cars, a Mercedes 380 SL, was

in  the  name  of her  mother,  Ms.  Paikopoulos.   The  evidence

supported  a finding,  however, that  Betty Arhaggelidis  was the

regular driver of the car, her  mother had never purchased a car,

and her mother did not have a driver's license.  When claims were

made  to Aetna on this Mercedes 380 SL, Ms. Arhaggelidis received

the  checks  from Aetna  at her  own address,  which was  not Ms.

Paikopoulos's address.  From this evidence, the  jury could infer

that Ms. Arhaggelidis arranged for title  to the car to be in her

mother's name in order to conceal fraudulent activity.

          One  of the  claims submitted  on  the Mercedes  380 SL

                               -78-

alleged  that Amir  Lajervardi hit the  parked car.   Thirty-four

days  later, the car reportedly  hit another parked  car owned by

Mohammad Mohammadi.   Thirty-three days after  that, the Mercedes

240D, title to which  was in the name of  Betty Arhaggelidis, was

allegedly  rear-ended by  Rahim  Nima.      At  trial,  Mr.  Nima

testified that  Mr. Mohammadi was his roommate and Mr. Lajervardi

was  his  classmate.    Three  months later,  the  Mercedes  240D

supposedly  rear-ended a  Mercedes owned  by Mr.  Diamondopoulos.

Mr.  Diamondopoulos testified  at trial  that the  accident never

happened.   With  respect  to this  accident, Betty  Arhaggelidis

signed a "Total Loss  Affidavit" and submitted it to Aetna.   She

then received,  endorsed, and deposited Aetna's  payment into her

account.

          From this  and other evidence introduced  at trial, the

jury  could reasonably  infer  that Ms.    Arhaggelidis acted  in

concert with her husband to commit fraud and personally committed

acts of  fraud.   Therefore, Ms. Arhaggelidis  was properly  held

jointly and severally  liable for all the  claims associated with

Rodco/P&amp;B Autobody.

                            CONCLUSION                                      CONCLUSION

          In  summary, we  conclude  that none  of the  arguments

advanced  on  appeal  supports  reversal of  any  aspect  of  the

judgment in this case.  The district court commendably  fashioned

an order for phasing of trial in two consolidated cases, with all

disputed and  material issues bearing  on liability  to be  tried

before  a jury in the  first phase.   In post-verdict proceedings

                               -79-

analogous  to a  hearing on  a motion  for summary  judgment, the

district court  correctly determined  that no genuine  dispute of

fact  remained for  jury  determination and  that final  judgment

should be  entered for  Aetna on  the jury verdict,  establishing

liability, and on the court's  calculation of damages based  upon

facts disclosed on the record and not subject to genuine dispute.

The district court's  pretrial order  for phasing  and its  post-

verdict   proceedings  were  well-tailored   to  the  distinctive

characteristics of this legally and factually complex litigation.

Together they  achieved fair and appropriate  adjudication of all

claims and defenses on  the merits.  Proceeding in  this fashion,

the court also effected substantial reductions of delay  and cost

for  the  parties and  the  court system,  an  objective strongly

commended by Rule 1 of the Federal Rules of Civil Procedure.

          The judgment of the district court is AFFIRMED.                                                                  

                               -80-
