
USCA1 Opinion

	




          December 29, 1994     [NOT FOR PUBLICATION]                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                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&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&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  & Cohn, Giovano Ferro II, Ferro, Feeney, Patten & Galante,          _____________  ________________  _______________________________          Daniel  T. Sheehan, Ralph  Stein, Edward  G. Ryan,  Ahmad Samadi,          __________________  ____________  _______________   ____________          Joseph  S. Carter, William D. Crowe, Crowe, Crowe & 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  & Wexler,  Glenda H.  Ganem and  Smith &          _____   _________________________   ________________      _______          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&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&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&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 & 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 &  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 & 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&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&B  Autobody defendant  to          defraud Aetna.                                         -39-                    The  jury,   with  support  in  evidence,   found  that          Rodco/P&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&B Autobody,  pursuant to a  common          design.  All  six claims  with which she  was connected  involved          claimed damage  purportedly repaired at Rodco/P&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 & 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&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  & 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&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-
