

                  UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT
                                           

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

                  AETNA CASUALTY SURETY COMPANY,

                      Plaintiff - Appellee,

                                v.

                      P&amp;B AUTOBODY, ET AL.,

                     Defendants - Appellees.

                                           

               ARSENAL AUTO REPAIRS, INC., ET AL.,

                     Defendants - Appellants.

                                           

No. 93-1903

                  AETNA CASUALTY SURETY COMPANY,

                      Plaintiff - Appellee,

                                v.

                     RODCO AUTOBODY, ET AL.,

                     Defendants - Appellees.

                                           

                       BETTY ARHAGGELIDIS,

                      Defendant - Appellant.

                                           

No. 93-2257

                  AETNA CASUALTY SURETY COMPANY,

                      Plaintiff - Appellee,

                                v.

                      P&amp;B AUTOBODY, ET AL.,

                     Defendants - Appellees.

                                           

                       BETTY ARHAGGELIDIS,

                            Appellant.

                                           

          APPEALS FROM THE UNITED STATES DISTRICT COURT

                FOR THE DISTRICT OF MASSACHUSETTS

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

                                           

                              Before

                     Torruella, Chief Judge,                                                     

                      Boudin, Circuit Judge,                                                     

                   and Keeton,* District Judge.                                                        

                                           

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

                                                  

*  Of the District of Massachusetts, sitting by designation.

                               -2-

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

                                           

                        December 29, 1994
                                           

                               -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,2 we affirm.

                         I.   BACKGROUND                                   I.   BACKGROUND

          We  begin this Opinion with  a summary of  facts as the

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

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

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

U.S. 910, (1989).

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

and  operated  by  defendant  Petros Arhaggelidis,  who  has  not

appealed  the judgment  against  him.    He  is  the  husband  of

appellant  Betty Arhaggelidis.  She was the owner of two Mercedes

upon which six fraudulent claims were made to Aetna.

          Another  of  the  body  shops, Arsenal  Auto  (also  an

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

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

Markarian  and Peter  Markarian  were employees  of Arsenal  Auto

during the period of the alleged fraudulent scheme.

          Tarja Markarian  and her husband  Peter Markarian  were

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

made to Aetna.

          From  1987 to  1989, the  Arsenal defendants,  together
                                                  

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

                               -5-

with   employees  and   friends,  submitted   sixteen  fraudulent

insurance claims  to Aetna  involving luxury automobiles.   Aetna

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

at least  ten additional  fraudulent claims with  other insurance

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

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

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

Peter and  Tarja Markarian submitted four  fraudulent claims (two

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

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

where most of  the cars  involved in the  fraudulent claims  were

stored and purportedly repaired.

          Timothy Cummings and Steven Dexter were two of the many

Aetna  appraisers who covered the area where Arsenal Auto and the

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

appraisal  for  ten of  the  sixteen fraudulent  claims  that the

Arsenal  defendants  (personally  or  in cooperation  with  their

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

Cummings  and  Dexter  submitted  false appraisals  to  help  the

Arsenal defendants defraud Aetna.

          In the district court,  judgment was entered by default

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

amount paid out  by Aetna  on 112 insurance  claims submitted  to

Aetna  that  the  jury   found  to  be  fraudulent)  trebled   to

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

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

                               -6-

and attorneys' fees.

          For  each of  the  sixteen  fraudulent claims  directly

involving  the  Arsenal defendants  and friends  cooperating with

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

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

the  Arsenal defendants  did not  provide any  documentation that

Arsenal  Auto or  any other  autobody shop  completed any  of the

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

some claims, the evidence shows  that the claimed accidents never

occurred; in  other cases,  the claimed damage  was intentionally

inflicted.  The jury  may have supportably inferred that  in some

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

appraisal and then later replaced with the original parts.

          The  jury found  that  each of  the individual  Arsenal

defendants  was liable  for  a substantive  RICO violation  under

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

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

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

conspiracy  with the  adjusters and the  operators of  other body

shops  (not including Betty Arhaggelidis).

          The judgment against the  Arsenal defendants was in the

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

and Dexter, explained above.

          Appellant  Betty Arhaggelidis  was associated  with the

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

Autobody, one  of  the  five  autobody  shops  involved.    Betty

                               -7-

Arhaggelidis owned  two Mercedes, one of which  was registered in

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

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

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

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

liable in connection with thirty-seven fraudulent claims.

          The  appellants challenge the judgments entered against

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

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

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

law because of insufficiency of the evidence.

          First  we   consider  the  issues   arising  from   the

relationships  among the  RICO  counts and  the civil  conspiracy

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

appellants.

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

          Appellants,  at various points,  both in  oral argument

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

judgment against them in  this case is somehow flawed  because of

some  aspect of  the relationships  among the  different theories

alleged and tried before  the jury.  We address  specific aspects

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

more broadly here.

          The district court  considered five different  theories

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

                               -8-

inquiry:  three claims of RICO substantive violations, one  claim

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

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

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

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

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

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

          The judgment against  the individual Arsenal appellants

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

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

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

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

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

the  evidence was  sufficient  for the  jury  reasonably to  find

liability on both Count VIII (the RICO substantive violation with                           

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

                               -9-

          The Arsenal appellants do not challenge the sufficiency

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

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

with respect  to  Count  VI is  an  argument  regarding  pleading

deficiency  that  we have  rejected  as  wholly without  support.

Moreover, because  we have  determined that the  judgment against

the individual  Arsenal appellants is supported  by jury findings

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

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

both.

          The  judgment against Arsenal  Auto Repairs, Inc. which

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

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

Arsenal Auto has not challenged  the sufficiency of the  evidence

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

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

reasons stated in other parts of this Opinion.

          The   judgment   against   appellant  Arhaggelidis   is

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

civil  conspiracy theory.    We conclude  that  the evidence  was

sufficient to support the  jury's finding against Arhaggelidis on

Count X.

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

assertions  is  true:    the  relationships  among  transactions,

defendants,  and  legal  claims  are  complex  both  legally  and

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

                               -10-

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

any of the issues before this court on appeal.

          Nowhere in the trial record, or in their  briefs before

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

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

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

did the appellants ever  clearly formulate an argument or  set of

arguments based upon their hints and innuendos about complexity.

          Nevertheless, we have read  with special care all parts

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

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

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

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

fact pattern  as  complex as  that before  us, with  interlocking

personal, family, and institutional relationships.

          Entirely apart  from the complexities added  by RICO, a

risk of confusion has long existed because of relationships among

different legal and factual theories  of conspiracy that might be

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

potential   consequences  of   invoking  different   theories  of

conspiracy is  more extensively developed in  criminal cases than

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

relevant statutes  and precedents  provide only  limited guidance

for structuring factual and legal analysis.

          In criminal  cases, issues arise often  with respect to

whether a case should be viewed as one involving:

                               -11-

          (1)  a  single  conspiracy of  many  parties,  multiple

objectives, and broad sweep;

          (2) multiple independent conspiracies; or

          (3)  a  nest  of  interlocking  conspiracies  that  may

involve  overlapping  conspiracies  or  smaller,  discrete  inner

conspiracies  of fewer persons and smaller scope that are tied in

with a larger conspiracy  whose members include some but  not all

of the members of the discrete inner conspiracies.

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

One  result of  this  range of  possible  interpretations of  the

evidence in a particular case is that a question concerning legal

theory and  arguments based upon it,  and concerning instructions

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

susceptible to an abstract answer unrelated to context."

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

          The persons  alleged to be RICO  conspirators and civil

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

RICO conspiracy theory in Oreto                                         

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

                               -12-

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

          In a  criminal context, the prosecutor  is allowed some

choice  of  theory,  though  the  choice  may  be  burdened  with

consequences,  including  those incident  to  the  law of  double

jeopardy.

          In a  civil context,  likewise, parties may  be allowed

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

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

return below.

          In this  case, added  layers of complexity  incident to

relationships  among  theories exist,  not  only  because of  the

relationships  between different  conspiracy  counts --  Count IX

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

because of the  relationships among these  counts and the  counts

alleging  RICO  substantive  violations (Counts  VII  and  VIII).

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

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

and factual theories may have, must be context sensitive.

          Because procedural law allows  alternative contentions,

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

legal  theories as  this case  presents may  be allowed  to defer

choice at least  until late  stages of proceedings  in the  trial

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

                               -13-

case may be allowed to maintain alternative contentions at  least

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

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

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

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

either  a  "special  question"  or an  instruction  submitting  a

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

choice that  has the  associated consequence of  almost certainly

precluding the assertion  after verdict of the  omitted theory of

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

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

limit  the scope  of  choice by  defining  consequences that  are

attached  to each of the  available options, rather than allowing

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

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

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

Harv. L. Rev. 724 (1916).

          Of  course, a  trial  court may  in some  circumstances

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

appropriate instructions explaining as to each theory the factual

elements the jury must  find to return a verdict  sustaining that

theory.   The  different  theories submitted  to  a jury  may  be

factually  compatible  --  that  is,   a  verdict  sustaining all

theories  submitted  may  be  permissible.   Also,  however,  the

evidence and the different theories of  conspiracy submitted to a

jury in a particular  case may be so factually  incompatible that

                               -14-

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

theories supported, but not all.

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

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

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

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

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

colloquies about  it, discloses  that the court  required only  a

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

each claim  against each  defendant, after elimination  of claims

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

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

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

submission to the jury.

          The  submission of  a separate  question requiring  the

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

allegedly  fraudulent  claims  was  necessary   because  disputed

factual issues were presented not only with respect to whether an

alleged  RICO   conspiracy  and  the   alleged  RICO  substantive

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

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

transactions  was   within  the   scope  of  the   conspiracy  or

substantive violation.  The  answers have a bearing on  the terms

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

determined  (supportably,  we  have  concluded)  that no  genuine

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

                               -15-

the 112 claims the jury found to be fraudulent.

          In summary, we conclude  that the verdicts and judgment

for  plaintiff  against  the  appellants  are  supported  by  the

evidence received in this case, and by law.

                               -16-

                    III.  SUFFICIENCY OF PROOF                              III.  SUFFICIENCY OF PROOF

          A.   Standard of Review                                           

          Appellants challenge the sufficiency of the evidence to

support the judgment entered  against them.  They argue  that the

district court should have granted their motions  for judgment as

a matter of law.

          The district court may grant a motion for judgment as a

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

reasonable inferences  therefrom "in the light  most favorable to

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

reasonable  person  to only  one  conclusion,"  favorable to  the

movant.

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

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

which  means that we use the  same stringent decisional standards

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

          With respect to the five individual Arsenal defendants,

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

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

first,  the finding  that all  individual Arsenal  defendants are

liable  on a theory of  RICO substantive violation  with Aetna as

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

                               -17-

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.)

          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

                               -18-

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

 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).                                   

                               -19-

          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

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

fact enterprise.

          In   contrast,  Count   VII   requires  proof   of   an

                               -20-

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

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

                               -21-

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

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

                               -22-

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

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

                               -23-

illegally  participating  in the  affairs  of  the Boston  Police

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

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

case, the  affairs  of  the enterprise  were  undermined  by  the

illegal activity.

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

          Second Element.   Appellants, who are  not employees of                                   

Aetna, attempt  to distinguish  Boylan by  pointing  out that  in                                                

Boylan  the defendants  were employees  of the  organization that                

constituted  the  RICO enterprise.    Appellants  argue that  the

statute prohibits  employees   from  conducting  an  enterprise's

affairs  through  a  pattern  of  racketeering  activity  to  the

detriment of  the enterprise, but  does not prohibit  persons who

are  merely associated  with the  enterprise from  conducting the

enterprise's  affairs  to  its  detriment through  a  pattern  of

racketeering activity.

          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                             

                               -24-

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.

          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.

                               -25-

Three of  the five individual Arsenal  appellants (the Tirinkians

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

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

appellants was  in a  contractual relationship  with Aetna.   The

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

"associated  with"  Aetna  because  each body  shop  about  which

evidence  was received at trial was a place where Aetna employees

conducted  appraisals and  where cars  that  were the  subject of

insurance were purportedly repaired.

          Third  Element.   Appellants  argue that  no reasonable                                  

jury could have found  that the appellants "participated directly

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

the  defendants   did  not  "participate  in   the  operation  or

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

113 S.Ct. 1163 (1993).

          Contrary   to  the  appellants'  assertion,  there  was

sufficient  evidence  for a  reasonable  jury  to  find that  the

defendants'  activities  met  the definition  of  "participation"

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

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

allegedly  damaged vehicles  and  investigating, processing,  and

paying  automobile insurance  claims are  vital parts  of Aetna's

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

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

of Aetna.

          The  Supreme  Court  in  Reves  interpreted  the phrase                                                  

                               -26-

"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

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

                               -27-

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

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

                               -28-

          RICO proceedings);
            see also Moss v. Morgan Stanley, Inc.,  553                                                           
          F. Supp.  1347 (S.D.N.Y.),  aff'd 719  F.2d 5                                                     
          (2nd 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

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.

                               -29-

            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

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.

                               -30-

          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

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).

                               -31-

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

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

                               -32-

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

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

                               -33-

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.

          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

                               -34-

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
          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

                               -35-

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
          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

                               -36-

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

liable  for civil  conspiracy.   The appellants'  brief does  not

challenge  this finding  against  Arsenal Auto  on  the basis  of

insufficiency of the  evidence.  For  this reason, the  following

discussion of  civil  conspiracy concerns  Arhaggelidis's  appeal

only.

          Appellant Arhaggelidis challenges the  judgment entered

against her for  civil conspiracy on the ground  of insufficiency

of the  evidence.   The plaintiff  alleged that  Ms. Arhaggelidis

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

defraud Aetna.

          The  nature  of  a  "civil conspiracy"  and  the  proof

required  to invoke this type  of claim differ significantly from

those  applying to  criminal conspiracies  generally and  to RICO

conspiracies in  particular.  Under Massachusetts  law, either of

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

          First.   There is precedent supporting  a "very limited                          

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

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

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

conspiracy,  plaintiff  must  allege that  defendants,  acting in

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

                               -37-

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                                                    
          (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

                               -38-

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                                                            
          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

                               -39-

          theory in Massachusetts tracks  876(a) of the
          Restatement.").

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

conspiracy, stated:

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

(App. 4817-18).

Although  this  instruction  is  not  precisely  in  accord  with

Restatement   876,  the appellant  has  not  presented any  issue

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

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

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

          She  did,  however, challenge  the  sufficiency  of the

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

conclude, nevertheless,  that we  need not determine  the precise

state  of Massachusetts law on concerted  action in tort, because

under  any plausible  formulation  of Massachusetts  law, a  jury

reasonably could  find that  Betty Arhaggelidis acted  in concert

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

defraud Aetna.

          The   jury,  with  support   in  evidence,  found  that

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

claims that were submitted to Aetna, and that Betty  Arhaggelidis

was directly involved in six of those claims.

          From the  evidence at trial, the  jury reasonably could

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

                               -40-

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

design.  All  six claims  with which she  was connected  involved

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

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

defendant.  Her husband, Petros Arhaggelidis, allegedly  repaired

many  of the  cars personally.   Evidence  was received  that she

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

evidence  was received of other fraudulent conduct on the part of

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

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

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

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

agreement between Betty Arhaggelidis and her husband, under which

they played different roles, but nevertheless acted together with

a common design to defraud Aetna.

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

          The Arsenal appellants argue  that only sixteen  claims

involving the  Arsenal defendants  should have been  submitted to

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

Arsenal defendants on which  evidence was heard.   The appellants

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

                               -41-

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

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

                               -42-

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

constitute a "pattern of racketeering activity" through which the

defendants participated in the conduct of the  affairs of Arsenal

Auto.

          In considering the sufficiency of evidence, we need not

address the merits of such an argument because even when limiting

                               -43-

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

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

                               -44-

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

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.

                               -45-

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

'participate  in  the  conduct  of an  enterprise'  includes  the

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

operation of  the enterprise."   The  appellants argue that  this

instruction on  the meaning of the  phrase "participated directly

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

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

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

          The appellants  are precluded from  successfully making

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

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

appellants contend  that they  objected to this  instruction, the

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

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

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

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

any jury instruction,  but merely further argument in  support of

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

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

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

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

interpreted  as  an objection  to  the  instruction,  it  is  not

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,                                                                 

                               -46-

          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.                                                                           

(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                                                                           

                               -47-

          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                                                            
          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);

                               -48-

            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

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).                                                     

                               -49-

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

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

                               -50-

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

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

                               -51-

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.

          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 (2d ed. 1990).  It applies                                         

to insurance contracts as well as other contracts.

                               -52-

          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

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

                               -53-

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
          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

                               -54-

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

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

                               -55-

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

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

                               -56-

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."

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.                      

                               -57-

          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
          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

                               -58-

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

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.                            

                            CONCLUSION                                      CONCLUSION

          In  summary, we  conclude  that none  of the  arguments

advanced on  appeal  supports  reversal  of  any  aspect  of  the

                               -59-

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

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.                                                                  

                               -60-
