
USCA1 Opinion

	




          December 19, 1994 UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 93-1463                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                   CHARLES MORROW,                                Defendant, Appellant.                                  _________________          No. 93-1477          No. 93-1635                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                  JACOB NEVCHERLIAN,                                Defendant, Appellant.                                 ___________________                                     ERRATA SHEET               The opinion of  this Court,  issued on November  9, 1994  is          amended as follows:               On  page 11, line 3  of last paragraph,  insert "the" before          "crime" and replace "if" with "though".               On page 13, last line, delete "the" before "this".                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 93-1463                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                   CHARLES MORROW,                                Defendant, Appellant.                                 ____________________        No. 93-1477        No. 93-1635                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                  JACOB NEVCHERLIAN,                                Defendant, Appellant.                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                     [Hon. Ernest C. Torres, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                 Breyer,* Chief Judge,                                          ___________                          Boudin and Stahl, Circuit Judges.                                            ______________                                 ____________________            Edward J. Romano for appellant Charles Morrow.            ________________            Robert  B. Mann, by  Appointment of  the Court,  with whom  Mann &            _______________                                             ______        Mitchell was on brief for appellant Jacob Nevcherlian.        ________            Margaret E.  Curran, Assistant United  States Attorney, with  whom            ___________________        Edwin  J. Gale, United States Attorney, and James H. Leavey, Assistant        ______________                              _______________        United States Attorney, were on brief for the United States.                                 ____________________                                   November 9, 1994                                 ____________________                                    ____________________        *Chief  Judge Stephen Breyer heard  oral argument in  this matter, but        did not  participate in  the drafting or  the issuance of  the panel's        opinion.   The remaining  two panelists  therefore issue  this opinion        pursuant to 28 U.S.C.   46(d).                  BOUDIN, Circuit Judge.  This automobile fraud case poses                         _____________            a  tricky  issue in  conspiracy law  that  may not  have been            clearly addressed  in this  circuit.   We conclude  that some            evidence  may  have  been  admitted  at  trial  against  both            appellants that was  admissible only against one  of the two,            but  we  also  find  that  the  error  was clearly  harmless.            Rejecting all other claims of error, we affirm.                                          I.                 In  March 1992,  a federal  grand jury indicted  the two            appellants--Charles  Morrow  and Jacob  Nevcherlian--together            with  Rodney  Andreoni,  Vito  DeLuca  and  Randal  Lane  for            conspiracy  to  commit   mail  fraud.    18   U.S.C.     371.            Nevcherlian was also charged  with two substantive violations            of the mail  fraud statute, 18 U.S.C.   1341,  and Morrow was            similarly charged with one such violation.                   DeLuca,  Andreoni  and Lane  pled  guilty.   Morrow  and            Nevcherlian were tried together in  January 1993.  At  trial,            the government's chief witness was FBI agent Gary Brotan, who            had pretended to  participate in the  scheme.  His  extensive            testimony was supplemented by  documents and by recordings of            certain of  the conversations among the  indicted defendants.            The government's  evidence, if  believed, tended to  show the            following.                 In early  1991, the  FBI began investigating  a possible            case   of  automobile   insurance  fraud.     A  confidential                                         -2-                                         -2-            informant, Mark Vermilyea,  introduced Brotan to Andreoni  in            March  1991.   Andreoni  was  self-employed  as an  insurance            adjustor.  Brotan posed as Vermilyea's cousin from Boston and            colleague in the  subsequent activities.   Andreoni described            to Brotan how to conduct  an insurance fraud scheme involving            old but valuable "classic" cars.                   Andreoni proposed that Brotan acquire from DeLuca a 1975            Corvette  which  had  been used  in  prior  frauds.   It  was            suggested that  Brotan or  Vermilyea insure a  less expensive            car  and then  substitute the  Corvette on  the policy.   The            insured  then would file a claim based on an alleged accident            involving the Corvette, and shortly thereafter report the car            stolen  and  collect  again,   presumably  from  a  different            insurer.  The accident or loss  had to be staged within three            days of the purported acquisition of the car so that it would            not be necessary to  register the vehicle in Rhode  Island or            pay the state sales tax on the acquisition.                  About  ten days after the initial conversation, Andreoni            introduced  Brotan  to DeLuca.    Brotan made  a  $4,000 down            payment  to DeLuca to  purchase a 1975  Corvette for $10,000.            Although the  car belonged  to DeLuca, DeLuca  had previously            registered the  car in  Florida under Nevcherlian's  name and            with Nevcherlian's consent.  DeLuca gave Brotan a receipt and            a  copy  of  the  title purportedly  signed  by  Nevcherlian.            Several weeks later,  in April 1991,  Brotan paid the  $6,000                                         -3-                                         -3-            balance to DeLuca and received from him a bill of sale, again            purportedly   signed  by  Nevcherlian,   showing  a  spurious            purchase price of $21,000.    In  May 1991,  Andreoni offered            to stage an accident in which he backed his car into the 1975            Corvette  in exchange  for payment  of $750.   In  June 1991,            Andreoni  notified  his   own  insurer,  Travelers  Insurance            Company, that  such  an  accident had  occurred  on  June  7.            Shortly thereafter, Andreoni gave DeLuca a loss  form sent to            Andreoni by Travelers and Andreoni asked DeLuca to send it to            Nevcherlian in  case Nevcherlian, as the  listed prior owner,            was questioned by the insurance company.                 On July  26, 1991, DeLuca, Andreoni, Nevcherlian, Brotan            and Vermilyea met at  DeLuca's home.  Nevcherlian was  not in            the room at the outset of  the discussion.  Brotan asked that            a  new receipt  for  the down  payment  for the  Corvette  be            prepared and redated June 3,  1991, to bring it close  to the            alleged June 7 accident.   Brotan also asked that a  new bill            of sale be dated  August 1, 1991,  to cover a separate  claim            for the theft of the vehicle scheduled for August 2,  1991.                   After  this discussion,  Nevcherlian joined  the meeting            and  was  introduced   as  the  prior   owner  of  the   car.            Thereafter,  the question arose  whether the  Corvette's hard            top should also be reported as stolen, Vermilyea  saying that            it would be strange to claim that the hard top was being used                                         -4-                                         -4-            in  August.   Nevcherlian suggested  that Vermilyea  tell the            insurance  company  that  the  car had  air  conditioning  to            explain the use  of the  hard top, and  he further  suggested            that it could  be falsely claimed  that the car had  a stereo            system  worth $1,000.   Nevcherlian  also suggested  giving a            false purchase price of $25,000 on the new bill of sale to be            dated August 1, 1991.                   On August 1, Travelers sent  Vermilyea a check for  just            under  $5,000 to cover the  supposed June 7  accident and, on            the same  date, Vermilyea  substituted the 1975  Corvette for            another car on his  own insurance policy.  The  following day            he reported to the Narraganset  police that the 1975 Corvette            had  been  stolen.     Shortly  thereafter,  Nevcherlian  was            contacted  in Florida  by telephone  by a  Narraganset police            detective and he told the detective that he had sold  the car            a few years  earlier but lacked  details; in September  1991,            Nevcherlian called the police  department and told a sergeant            that  he had sold the 1975 Corvette to Vermilyea for $25,000.            In response to a request for  the paperwork, Nevcherlian then            mailed a  copy  of  the  Florida  title  certificate  to  the            Narraganset police.                   In the meantime, a  second fraudulent transaction was in            preparation.  On August 5,  1991, DeLuca introduced Brotan to            Morrow, who was the owner of a car dealership in Rhode Island            and  apparently  a  business   partner  of  DeLuca  in  other                                         -5-                                         -5-            ventures.  Morrow agreed  to sell Brotan a 1958  Corvette for            $15,000; Brotan explained  how he  intended to use  it in  an            insurance fraud.   Brotan then  made a $10,000  down payment;            Morrow said  he could not release the  car at once because he            himself had a pending insurance claim relating to the car.                 Later in August, Brotan took the 1958 Corvette to Lane's            garage in New  Hampshire; Lane agreed  to strip the  vehicle,            have it found after Brotan reported it stolen, and then after            insurance  inspection  replace  the  original  parts, all  in            exchange  for  a fee  of $2,500.    In September  1991, after            discussion of the planned  fraud, Brotan gave Morrow $5,000--            the balance  of the  $15,000 purchase price--and  Morrow gave            Brotan the  title certificate  and  an undated  bill of  sale            showing a fictitious purchase price of $28,500.                 On October  4, 1991, Brotan reported  to the Manchester,            New Hampshire, police  that the 1958 Corvette had been stolen            and  later  that  month   received  claim  forms  from  Aetna            Insurance Company  for Brotan's  claim for the  alleged theft            and stripping of the 1958 Corvette.  DeLuca had earlier given            Brotan a bill of sale for another car that Brotan did not own            but  proceeded to insure so  that the 1958  Corvette could be            substituted  on the policy prior  to filing the  claim on the            Corvette.  Morrow subsequently advised an  Aetna investigator            that he  had sold the 1958  Corvette to Brotan  on October 3,            1991, for $28,500.                                           -6-                                         -6-                 In his own defense, Nevcherlian denied complicity in any            plot and testified  that he had registered the  1975 Corvette            in Florida as a favor to  DeLuca.  He admitted signing a bill            of sale  dated June 3, 1991, at  the meeting at DeLuca's home            on July 26,  1991, and admitted sending the title for the car            to  the Narraganset  police  in October  1991.   Morrow  also            testified   in  his  own  defense   and  denied  guilt.    He            acknowledged  giving Brotan an  undated bill of  sale for the            1958 Corvette with a purported purchase price of $28,500 even            though he had  received only $15,000.   Both Nevcherlian  and            Morrow  admitted that  they  knew that  insurance claims  are            routinely processed through the mail.                   On January 21, 1993,  the jury convicted Nevcherlian and            Morrow   on  all   of  the   counts  charged   against  them.            Thereafter, Morrow was sentenced to  ten months' imprisonment            and  a  fine of  $2,000.   Nevcherlian  was sentenced  to ten            months' imprisonment, five of which were to be served in home            confinement,  and was  fined $250.   These  appeals followed.            Our  discussion   begins  with  the  conspiracy  count,  then            addresses the  substantive counts and concludes  with several            miscellaneous claims of error.                                         II.                 Count 1 of the indictment  charged all of the defendants            with being parties to a continuing conspiracy to  commit mail            fraud by  inducing  insurance  companies  to  pay  fraudulent                                         -7-                                         -7-            claims  of loss  for purported  automobile theft  and damage.            Both  Nevcherlian and Morrow  argue that the  evidence was so            weak  as to require a directed judgment of acquittal.  Morrow            also argues, in the alternative, that a new trial should have            been ordered.   Both appellants also claim  that the district            court  erred  in  refusing to  grant  a  mistrial  or give  a            limiting instruction  because the  evidence showed  no single            conspiracy that embraced both appellants.                 In reviewing the sufficiency of the evidence, we resolve            credibility issues  and draw inferences  in the  government's            favor, since  the issue  is whether a  jury could  reasonably            have  arrived at  the  verdict.   United  States v.  Gonzalez                                              ______________     ________            Torres, 980 F.2d 788, 790 (1st Cir. 1992).  Our analysis, for            ______            reasons that  will become  clear, starts not  with appellants            but  with   DeLuca  and  Andreoni.     The  evidence  already            summarized was ample to  permit the jury to find  that DeLuca            and  Andreoni were engaged  in a  conspiracy to  defraud that            contemplated  the use  of  the mails  in  furtherance of  the            scheme.  See  United States  v. Cassiere, 4  F.3d 1006,  1011                     ___  _____________     ________            (1st Cir. 1993).                 Further,  the jury  could  easily find  that DeLuca  and            Andreoni  were  engaged  in  a single  continuing  conspiracy            embracing  both of the specific frauds attempted here.  It is            a commonplace  that a single conspiracy  may embrace multiple            crimes.  The  similarity of  the frauds, the  core of  common                                         -8-                                         -8-            participants, the common location,  and the overlap in timing            all make  it  permissible  to  treat  the  conspiracy  as  an            unbroken one under the  criteria commonly used to distinguish            between single  and multiple conspiracies.   United States v.                                                         _____________            Cloutier, 966 F.2d 24 (1st Cir. 1992).            ________                 We now  turn to consider  the roles  of Nevcherlian  and            Morrow.   Although Nevcherlian argues  that he was not guilty            of any conspiracy, we think  that the evidence permitted  the            jury to find that Nevcherlian did participate in a conspiracy            to commit mail fraud  with DeLuca and Andreoni.   Nevcherlian            was the prior  title holder of the 1975 Corvette  used in the            first  fraud, was  familiar  with the  fraudulent  plan as  a            result of the July 26 meeting, suggested three different ways            in which the other participants could increase the fraudulent            claim, and provided a false story of the sale to  the police.            By  his own  admission,  the  use  of  the  mails  to  obtain            insurance payments was reasonably foreseeable.                   Morrow  could also reasonably be found a party to a mail            fraud conspiracy with DeLuca  and Andreoni based on  his role            in the 1958  Corvette transaction.  The evidence  showed that            he  was familiar with the intended fraudulent use of the car,            that he assisted in  the fraudulent arrangements by providing            phony bill of sale, and that he also knew that the mails were            used  to process and collect insurance payments.  This is not            by any means  a case  in which a  defendant's involvement  is                                         -9-                                         -9-            based  merely  on  the provision  of  some  lawful object  or            commodity later used in a criminal manner.                  While the evidence  was thus adequate to  show that each            appellant participated in a mail fraud conspiracy with DeLuca            and  Andreoni,  the hard  question  is  whether a  reasonable            factfinder  could   conclude  Nevcherlian  and   Morrow  each            participated in  the same conspiracy.   Put differently, each                                 ____            of the appellants has a colorable claim that, although guilty            of conspiracy  to commit mail fraud,  neither participated in            the  overarching conspiracy  charged  in the  indictment  but            rather  each joined  only in  a smaller,  separate conspiracy            relating  to a  different  car--Nevcherlian being  associated            with the 1975 Corvette and Morrow with the 1958 Corvette.                 The law  of conspiracy is fraught  with difficulties but            perhaps no aspect  is more  confusing than "the  scope to  be            accorded  to   a   combination,  i.e.,   the  singleness   or                                             ____            multiplicities of the conspiratorial relationships . .  . ."             American Law Institute, Model Penal Code and Commentaries 423                                    _________________________________            (1985).   One reason  is that  the "scope"  issue is used  to            decide  a variety  of  quite different  issues, ranging  from            substantive responsibility for co-conspirator acts, overt act            requirements,   and  double  jeopardy,  to  admissibility  of            hearsay,  venue,  joinder and  limitations  issues.   From  a            policy standpoint,  not all should necessarily  be treated in            the same way.                                         -10-                                         -10-                 Further,  and perhaps  more  fundamental as  a cause  of            confusion,  is  "the  verbal  ambiguity  which  leads  courts            [sometimes] to deal with the crime of conspiracy as though it            were  a group  rather  than  an  act [i.e.,  of  agreement]."                                                  ____            Developments in  the Law:   Criminal Conspiracy, 72  Harv. L.            _______________________________________________            Rev. 920,  934 (1959).   To emphasize  "agreement," the  core            concept in  conspiracy, Iannelli  v. United States,  420 U.S.                                    ________     _____________            770,  777 (1975), implies that  "scope" is to  be resolved by            asking what the defendant agreed  to do, or at least knew  to            be  likely.   By contrast,  if the  "group" character  of the            crime is emphasized, "scope"  may seem more to be  a function            of how the  enterprise conducted itself rather  than what any            one individual had in mind.                 In  our view,  the governing  principle is  this:   at a            minimum,  a conspirator must have   knowledge or foresight of                                                ______________________            the  conspiracy's  multiplicity  of  objectives  before  that            defendant  is  convicted  of  a   multiple-crime  conspiracy.            Conviction  for  such  a  multiple-crime  conspiracy  remains            possible  even  if  the  conspiracy is  open-ended  (e.g.,  a                                                                 ____            conspiracy  to rob  banks) and  the  specifics of  the future            crimes  (e.g.,  which  banks)  is undetermined  or  at  least                     ____            unknown to the  defendant.   But if a  defendant agrees  with            others  simply to  commit a  single crime  (e.g., to  rob one                                                        ____            bank)  and has no knowledge or  foresight of the conspiracy's                                         -11-                                         -11-            broader  scope,  that  defendant  is  a member  only  of  the            narrower, one-crime conspiracy.                  Our conclusion does not  rest upon policy, for policies            can  be found on either side of  the issue.  Rather, our view            derives  in part from the  core concept of  agreement, for it            seems to us  hard for  a conspirator to  "agree" to  multiple            objectives if instead the  conspirator believes that only one            crime is intended.  Our view is buttressed by precedents that            hold or imply that  knowledge is required, including language            in  our  own  prior  cases.1    Whether  anything  more  than            knowledge may be required  for agreement depends upon context            and, in  any event, is  not at  issue here.   Compare  United                                                          _______  ______            States v. Townsend, 924 F.2d 1385, 1391 (7th Cir. 1991). I  n            ______    ________            this case the government has not attempted on appeal to point            us  to evidence to show that either Nevcherlian or Morrow was            aware that the  conspiracy embraced multiple frauds.  No such            evidence  may exist as  to Nevcherlian; Morrow  is arguably a            closer case  but his  broader knowledge is  not unequivocally            established.   Nor is this the type  of conspiracy, such as a            drug ring, where knowledge  that multiple crimes are intended                                            ____________________                 1See, e.g., United  States v. Brandon, 17  F.3d 409, 428                  ___  ____  ______________    _______            (1st  Cir.   1994)  ("knowledge   of  the   basic  agreement"            required); United States  v. Mena Robles,  4 F.3d 1026,  1033                       _____________     ___________            (1st  Cir.  1993) ("common  goal  or  overall plan");  United                                                                   ______            States  v.  Zimmerman, 832  F.2d  454,  458 (8th  Cir.  1987)            ______      _________            (conspirators "aware of the  general nature and scope  of the            conspiracy"); United States v. Evans, 970 F.2d 663, 670 (10th                          _____________    _____            Cir. 1992)  ("shared" and not just  "parallel" object), cert.                                                                    _____            denied, 113 S. Ct. 1288 (1993).            ______                                         -12-                                         -12-            may be rather easily  inferred based on common practice.   In            sum, we  think that we are  not in a position  to sustain the            convictions  here on  the ground  that Nevcherlian  or Morrow            engaged in a multiple-crime conspiracy.                 This  conclusion prolongs  our discussion  but  does not            alter  the result.   The  indictment charged  Nevcherlian and            Morrow with conspiracy to commit mail fraud; and the jury, on            ample evidence,  convicted  them of  this very  crime.   Thus            there was  no constructive amendment  of the indictment.   Of            course, the  indictment charged each defendant  with a single            continuing multi-crime conspiracy,  so as to  Nevcherlian and            Morrow there was a variance between the facts charged and the            facts  proved.   But  the  indictment  gave appellants  ample            notice  of  the  events  charged,  and  a  variance  warrants                             ______            reversal only if shown  to be prejudicial.  United  States v.                                                        ______________            Sutherland, 929 F.2d 765, 773 (1st Cir. 1991).            __________                 On appeal, the closest that either appellant comes to an            assertion of  prejudice relates to the  admission of hearsay.            In  accordance  with  settled  First  Circuit  practice,  the            district  judge  admitted  provisionally   a  number  of  co-            conspirator statements against both appellants--specifically,            recordings or Brotan's testimony of what was said at  various            meetings.   See United States  v. Pettrozziello, 548  F.2d 20                        ___ _____________     _____________            (1st Cir.  1977); United States  v. Ciampaglia, 628  F.2d 632                              _____________     __________            (1st  Cir.),  cert.  denied,   449  U.S.  956,  1038  (1980).                          _____________                                         -13-                                         -13-            Ultimately,  after  all of  the  evidence  was admitted,  the            district judge  concluded (outside the presence  of the jury)            that  a single  conspiracy existed  in which  both appellants            participated.                 Such  findings are  normally  reviewed  only  for  clear            error.   But here the  district court's  explanation for  its            ruling  suggests that the court  believed it to be sufficient            that  an  overarching   conspiracy  existed  and  that   each            appellant agreed  to participate in a phase of its operation.            Thus, our disagreement turns  on an issue of law,  namely our            view  that  (in addition)  knowledge  of the  multiple-crimes            objective was requisite.   In all events,  the government has            not pointed  to evidence  of  such knowledge,  so a  contrary            finding would be clearly erroneous.                 It is  therefore likely true  that some  of the  hearsay            relating  to the first fraud  and admitted against Morrow was            not,  as to him,  covered by the  co-conspirator exception to            the hearsay rule; and, conversely, some of the hearsay on the            second   fraud  was   not  admissible   against  Nevcherlian.            Arguably,   the  co-conspirator   hearsay  exception   is  an            historical anomaly,  there being nothing  especially reliable            about such statements;  but it  is settled law,  see Fed.  R.                                                             ___            Evid.  801(d)(2)(e), and the  exception clearly requires that            the  defendant  be  (at some  point)  a  member  of the  same                                                                     ____                                         -14-                                         -14-            conspiracy that generates the  hearsay statement.  Id.   That                                                               ___            condition has not been met here.                 It remains to consider whether harm occurred.  Normally,            where evidence is wrongly admitted over objection, it is  for            the government to show  that it was harmless.   United States                                                            _____________            v. Welch, 15 F.3d 1202, 1214 (1st Cir. 1993).  Here, however,               _____            we think that harmlessness  is apparent from the distinctness            of  the  two fraudulent  schemes.    The admissible  evidence                                                     __________            against  each appellant  amply proved  his complicity  in the            narrow  conspiracy  relating to  the  car  furnished by  that            appellant.  There is no indication that inadmissible evidence            as  to the first fraud came  in against Nevcherlian or, as to            the second, against Morrow.                 It is true that  in principle some of the  evidence used            to  prove  the  second  fraud was  wrongly  admitted  against            Nevcherlian; a  limiting instruction excluding its  use as to            him  would have been proper.  But nothing tied Nevcherlian to            that  fraud,  and it  is a  virtual  certainty that  the jury            convicted  him  because of  his  involvement  with the  first            fraud.    The same  is true,  mutatis  mutandis, of  the case                                          _________________            against Morrow.  Nor is this  an instance in which one of the            frauds  was doubtful and the proof of one depended upon proof            of the other.  If ever an error was harmless, this is it.                                         III.                                         -15-                                         -15-                 We   next  consider   appellants'   attacks   on   their            convictions  for  the   substantive  (i.e.,   non-conspiracy)                                                  ____            counts.  In addition to conspiracy, Nevcherlian was convicted            of two counts of mail fraud.  The first count at issue (count            4)  charged  that  Nevcherlian,  as part  of  the  fraudulent            scheme,  had   mailed  "matter"   in  Rhode  Island   to  the            Narraganset Police Department.   The evidence at trial showed            that  Nevcherlian mailed  a copy  of the  title for  the 1975            Corvette  from Florida  to  the Narraganset  police in  Rhode            Island  in  response  to  the police  request  for  paperwork            confirming the story he had told the police about the sale of            the Corvette.                 Nevcherlian's   first   argument  for   a   judgment  of            acquittal, made in the district  court and renewed on appeal,            is  that  there  is  a  fatal  variance  because  Nevcherlian            actually mailed the title from Florida rather than from Rhode            Island (as  alleged  in the  indictment).   Such  a  variance            would,  as already noted,  be a basis  for relief only  if it            caused prejudice to the defendant; and in this instance there            is no showing of prejudice.  We reject  the variance claim on            this  ground without  reaching  the government's  alternative            argument  that the  mailing  could be  regarded as  occurring            partly in Rhode Island.                 Nevcherlian's second  argument for an  acquittal on this            count,  again properly preserved, is  that the mailing of the                                         -16-                                         -16-            title  document  cannot be  treated as  part  of a  scheme to            defraud since the document  was sent in response to  a police            request.   We see no reason  why a jury could  not reasonably            conclude as a factual matter that the mailing was intended to            and  did serve to forward and shield the fraudulent scheme by            seeming to corroborate the story that Nevcherlian had already            told  the police.    After all,  to  recover and  retain  the            insurance proceeds depended  on reporting the supposed  theft            to  the police while at  the same time  dissembling about the            facts.                   Parr v. United States, 363 U.S. 370 (1959), relied on by                 ____    _____________            Nevcherlian, is not  in point.  There,  employees stole money            that had  been obtained  by  the school  district, which  had            obtained the  funds by  mailing tax assessments  and received            checks  by mail.  The  Supreme Court held  that the mailings,            which  were required by law and had been completed before the            funds  were stolen,  could  not be  treated  as part  of  the            fraudulent scheme so as to invoke the mail fraud statute.  In            our case, Nevcherlian's mailing was not compelled by law, nor            was  it a separate activity  completed before the  end of the            fraudulent scheme.   Rather, the mailing  played an operative            role in the fraud.                 Nevcherlian was also charged (in  count 5) with a second            substantive count of mail  fraud by causing Maryland Casualty            to  make a  mailing  to  Vermilyea.    The  mailing  was  the                                         -17-                                         -17-            insurer's   letter   acknowledging  that   it   had  received            Vermilyea's  claim  for  the  theft  of  the  1975  Corvette.            Nevcherlian asked for a judgment of acquittal in the district            court  on the  ground that the  mailing was  not part  of the            scheme to defraud, the district court rejected the assertion,            and Nevcherlian now claims error.  Courts  have long  puzzled            to  devise   a  formula  that  would   capture  the  required            relationship between the use of the mails  and the fraudulent            scheme.   In Schmuck v.  United States, 489  U.S. 705 (1989),                         _______     _____________            the Supreme  Court selected  among its own  earlier decisions            and declared that the mails had to be used in connection with            the fraud but their use "need not be an  essential element of            the scheme"  and could be merely "incidental  to an essential            part of the scheme" or "a step  in [the] plot."  Id. at  710-                                                             ___            11.   These  expansive  statements were  made  over a  strong            dissent  and go far toward  making the mails a jurisdictional            hook.                 The facts  of Schmuck  are also  instructive  as to  the                               _______            current reach of  the mail  fraud statute.   The Court  there            held  that  Schmuck's  own  fraudulent scheme  to  roll  back            automobile odometers and then resell  the cars to dealers was            sufficiently connected with the use of the mails because  the            defrauded dealers  subsequently  mailed to  the  state  title            forms to register  the affected  cars that they  in turn  had            sold to their own customers.  The mailings did not themselves                                         -18-                                         -18-            dupe either the retailers or their customers.  The Court said            that  it was enough  that the passage  of title, accomplished            through the mails,  was a necessary part  of the perpetuation                                                             ____________            of Schmuck's scheme--that is, his ability to carry out future            frauds of the same kind.  Id. at 712.                                      ___                 In our  own case, Aetna's acknowledgment  letter did not            itself  involve any deception, but  it was "incidental" to an            essential element  in the scheme, namely,  the criss-cross of            mailings that would reasonably  be expected when false claims            are submitted to insurance  companies, are processed, and are            ultimately paid, thereby making the fraud successful.  From a            temporal  standpoint,  the  mailing  here  was  more  closely            connected to  the fraud than the mailings  in Schmuck because                                                          _______            the  former was incident to the insurance payout that was the            very object of the  fraud.  Precedent amply supports  the use            of mailings to and from the  insurer or agent to supply  this            element under the statute.2                 Morrow,  who was  indicted on  one substantive  count of            mail fraud, also moved unsuccessfully for  an acquittal.  The            indictment charged  (in count  3) that Morrow,  together with            others in the conspiracy, caused  Aetna to mail Brotan claims            materials  for recovering  on the alleged  theft of  the 1958                                            ____________________                 2See, e.g., United States  v. Koen, 982 F.2d  1101, 1108                  ___  ____  _____________     ____            (7th Cir.  1992); United States  v. Bortnovski, 879  F.2d 30,                              _____________     __________            40-41 (2d  Cir. 1989);  United States v.  Contenti, 735  F.2d                                    _____________     ________            628, 632 (1st Cir. 1984).                                          -19-                                         -19-            Corvette.    Morrow  preserved  his  claim by  moving  for  a            judgment of acquittal.  Morrow does not urge that the mailing            was  unrelated  to the  fraud but  argues  that there  was no            evidence  to indicate that Morrow put anything in the mail or            caused Aetna to do so.                   There  is no requirement that  the mailing be  done by a            party to the fraud so long as the mailing bears the requisite            relationship  to the fraudulent  scheme.   It is  enough that            Morrow participated  in a crime  in which it  was foreseeable            (here,  almost  inevitable) that  the  mails  would be  used.            United States v.  Yefsky, 994  F.2d 885, 890,  892 (1st  Cir.            _____________     ______            1993); United States v.  Dray, 901 F.2d 1132, 1137  (1st Cir.                   _____________     ____            1990), cert. denied,  498 U.S.  895 (1990).   To this  extent                   ____________            Morrow  is properly  chargeable with  the foreseeable  events            that  he himself  helped put  in train.   Morrow  admitted at            trial  that  he knew  that  automobile  insurance claims  are            processed in part through the use of the mails.                                         IV.                 There  are  three  remaining  claims of  error  on  this            appeal.   Each is  advanced by Nevcherlian.   We take them in            chronological order.                 First,  Nevcherlian  appeals from  the  district court's            rejection of his motion to sever his prosecution from that of            Morrow.    The  attack on  joinder  is  that  there were  two            different   conspiracies   and    that   neither    appellant                                         -20-                                         -20-            participated in the same  conspiracy.  Fed. R. Crim.  P. 8(b)            allows two defendants to be joined in the same indictment "if            they  are alleged  to have  participated in  the same  act or            transaction  or in  the same series  of acts  or transactions            constituting an  offense or offenses."   Here, the indictment            satisfied this  requirement by alleging that  appellants were            members of the same conspiracy.                 Under Rule 8(b), the test for initial joinder is what is            responsibly  alleged, not  what  is ultimately  proved.   See                         _______                                      ___            United  States v. Boylan, 898 F.2d 230, 245 (1st Cir.), cert.            ______________    ______                                _____            denied,  498 U.S. 849  (1990).  Whatever  the deficiencies in            ______            proof, there  was nothing irresponsible about the allegations            in the  indictment.  Where the facts at trial fail to support            an element necessary  for joinder, the defendant  must make a            showing of  prejudice sufficient for severance  under Fed. R.            Crim. P. 14.  Schaffer v. United States, 362 U.S. 511 (1960).                          ________    _____________            Appellants  have   made  no   such  showing,  and   the  very            separateness  of the  evidence relating  to the  two episodes            undermines such a claim.                   Nevcherlian's  second  claim  of error  relates  to  the            admission  of  evidence.   In the  course  of the  trial, the            government introduced copies of the title certificate for the            1975 Corvette and of four  bills of sale for that car.   Each            document bore the purported signature of Nevcherlian.    Each            was given  to Brotan in the  course of the conspiracy  and in                                         -21-                                         -21-            furtherance  of it.  Most  of the documents  were supplied by            Andreoni at meetings, already described, at which Nevcherlian            was not present.                  Nevcherlian objected to the admission of these documents            at trial on the ground that there was no evidence that he had            signed  them.  The government says  that later evidence shows            that he  had  signed at  least  one, but  it  admits that  he            probably  did not sign  two of the  others.  At  the time the            documents were  introduced,  the district  court advised  the            jury that the introduction of the documents did not establish            that Nevcherlian had  signed them  and that this  would be  a            matter  for   the  jury  to  determine   from  the  evidence.            Nevcherlian  argues  that   this  limiting  instruction   was            inadequate to avoid prejudice and confusion.                 Where  the  relevance  of  a  document  depends  on  the            authenticity of  a purported signature, the  Federal Rules of            Evidence  are somewhat  more demanding  than the  practice of            ordinary  life.   Like  the common  law,  Fed. R.  Evid.  901            requires   (with  some   exceptions)  that   there   be  some            affirmative proof  of authenticity--that  is, in a  case like            this,  proof  that the  document was  in  fact signed  by the            purported signatory.   Such proof is  normally offered before            the document may  be considered by the  jury, but conditional            admissibility is not precluded.  Fed. R. Evid. 104(b).                                         -22-                                         -22-                 But each of the five documents at issue in this case was            admissible without regard to whether  Nevcherlian's signature                       __________________________________________________            was  genuine.    Each document  played  a  role  in the  1975            ____________            Corvette transaction  itself.  Thus each  helped to establish            the existence of  a conspiracy, its method  of operation, and            transactions between various of  the participants.  In short,            each document  was admissible  against Nevcherlian  for these            purposes  regardless  whether  the  signature   was  genuine.            Nevcherlian was  independently  linked to  the conspiracy  by            other  evidence,  especially  evidence  of  his  presence and            statements at the crucial meeting July 26.                 Nevcherlian's   objection   is  thus   a  garden-variety            argument  that  the appearance  of  his name  at  the bottom,            without  adequate authentication,  meant that  the documents'            prejudicial  effect  substantially outweighs  their probative            value.   Fed. R. Evid.  403.  Even  assuming that Nevcherlian            made this precise objection at trial, its rejection would not            constitute an abuse of discretion, especially in light of the            cautionary instruction.  Nevcherlian  might have argued for a            firmer instruction--e.g., expressly forbidding the  jury from                                ____            treating the  signature as genuine  until this was  proved by            independent evidence--but he did not do so.                 Finally, Nevcherlian says that the district  court erred            because it  refused to  give a requested  defense instruction            that "good faith  on the part of the Defendant  is a complete                                         -23-                                         -23-            defense to a  charge of  mail fraud."   Nevcherlian does  not            deny that the  other jury instructions given by  the district            court properly set forth the  elements of the crimes charged.            He  merely asks us to reexamine United States v. Dockray, 943                                            _____________    _______            F.2d 152, 155 (1st  Cir. 1991), holding that the  trial court            is not  required to give  a specific good  faith instruction.            This  panel  is  not  free to  disregard  recent,  unimpaired            precedent of this court.      Affirmed.                                          ________                                         -24-                                         -24-
