
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          Nos. 93-1877               93-1878               93-1879               93-1880               93-1881               93-2209               93-2300                            AETNA CASUALTY SURETY COMPANY,                                Plaintiff - Appellee,                                          v.                                P&B AUTOBODY, ET AL.,                               Defendants - Appellees.                                 ____________________                         ARSENAL AUTO REPAIRS, INC., ET AL.,                               Defendants - Appellants.                                 ____________________          No. 93-1903                            AETNA CASUALTY SURETY COMPANY,                                Plaintiff - Appellee,                                          v.                               RODCO AUTOBODY, ET AL.,                               Defendants - Appellees.                                 ____________________                                 BETTY ARHAGGELIDIS,                                Defendant - Appellant.                                 ____________________          No. 93-2257                            AETNA CASUALTY SURETY COMPANY,                                Plaintiff - Appellee,                                          v.                                P&B AUTOBODY, ET AL.,                               Defendants - Appellees.                                 ____________________                                 BETTY ARHAGGELIDIS,                                      Appellant.                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. William G. Young, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                               Torruella, Chief Judge,                                          ___________                                Boudin, Circuit Judge,                                        _____________                             and Keeton,* District Judge.                                          ______________                                _____________________               William  F. Spallina, with whom Carol A. Molloy was on brief               ____________________            _______________          for defendants Arsenal Auto Repairs, Inc., et al.               Kenneth R.  Berman, with whom  David A. Guberman  and Sherin               __________________             _________________      ______          and Lodgen, were on brief for defendant Jack Markarian.          __________               James  P. Duggan,  Alfred E.  Nugent, John  G.  Lamb, Flynn,               ________________   _________________  ______________  ______          Hardy  & Cohn, Giovano Ferro II, Ferro, Feeney, Patten & Galante,          _____________  ________________  _______________________________          Daniel  T. Sheehan, Ralph  Stein, Edward  G. Ryan,  Ahmad Samadi,          __________________  ____________  _______________   ____________          Joseph  S. Carter, William D. Crowe, Crowe, Crowe & Vernaglia and          _________________  ________________  ________________________          Abdullah Swei for defendants P Autobody, et al.          _____________                                        ____________________          *  Of the District of Massachusetts, sitting by designation.                                         -2-               David S. Douglas  and David  O. Brink, with  whom Howard  S.               ________________      _______________             __________          Veisz,  Kornstein Veisz  & Wexler,  Glenda H.  Ganem and  Smith &          _____   _________________________   ________________      _______          Brink, were  on brief  for plaintiff-appellee Aetna  Casualty and          _____          Surety Company.                                 ____________________                                  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&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&B          Autobody, one  of  the  five  autobody  shops  involved.    Betty                                         -7-          Arhaggelidis owned  two Mercedes, one of which  was registered in          her  mother's  name.   These two  Mercedes  were involved  in six          fraudulent claims, as to all of which Cummings did the appraisal.          The jury found  that she  was liable under  a "civil  conspiracy"          theory  centered around  Rodco/P&B  Autobody, and  therefore  was          liable in connection with thirty-seven fraudulent claims.                    The  appellants challenge the judgments entered against          them  on  a variety  of grounds.    In addition,  each appellant,          except  for  Arsenal Auto  Repairs,  Inc.,  appeals the  district          court's  denial of his or her motion  for judgment as a matter of          law because of insufficiency of the evidence.                    First  we   consider  the  issues   arising  from   the          relationships  among the  RICO  counts and  the civil  conspiracy          count, then we consider other issues raised by one or more of the          appellants.               II.  RELATIONSHIPS AMONG COUNTS OF THE AMENDED COMPLAINT               II.  RELATIONSHIPS AMONG COUNTS OF THE AMENDED COMPLAINT                    Appellants,  at various points,  both in  oral argument          and in briefs before this court,  have seemed to suggest that the          judgment against them in  this case is somehow flawed  because of          some  aspect of  the relationships  among the  different theories          alleged and tried before  the jury.  We address  specific aspects          of this suggestion in Part III, infra.  We address the suggestion                                          _____          more broadly here.                    The district court  considered five different  theories          (asserted in  five different  counts) that are  relevant to  this                                         -8-          inquiry:  three claims of RICO substantive violations, one  claim          of RICO conspiracy, and one non-RICO conspiracy claim.                         First.  Count  VII, a RICO substantive                         _____                      violation  under    1962(c)  alleging  an                      association-in-fact  enterprise.     This                      theory was dismissed from the case in the                      trial court.                         Second.      Count   VIII,    a   RICO                         ______                      substantive   violation  under    1962(c)                      alleging  Aetna as  the enterprise.   The                      jury  found that  this  claim was  proved                      against     all    individual     Arsenal                      appellants.                         Third.   Count VI,  a RICO substantive                         _____                      violation   under    1962(c),    alleging                      Arsenal Auto as the enterprise.  The jury                      found that this claim was  proved against                      all individual Arsenal appellants.                         Fourth.   Count  IX, alleging  a  RICO                         _______                      conspiracy  under   1962(d).    The  jury                      found that this  claim was proved against                      all individual Arsenal appellants.                         Fifth.    Count  X, common  law  civil                         _____                      conspiracy.   The  jury found  that  this                      claim   was   proved   against  all   the                      appellants,  including  Arsenal Auto  and                      Arhaggelidis.                    The judgment against  the individual Arsenal appellants          jointly and severally in the amount of $2,359,901.72 is supported          by  the  jury's  finding of  liability  on  Counts  VIII and  IX.          Therefore,  if we determine that either the finding on Count VIII                                           ______          or  that on  Count IX  is supported  by sufficient  evidence, the          judgment must  stand.  In fact, as we explain below, we find that          the  evidence was  sufficient  for the  jury  reasonably to  find          liability on both Count VIII (the RICO substantive violation with                       ____          Aetna as the enterprise) and Count IX (the RICO conspiracy).                                         -9-                    The Arsenal appellants do not challenge the sufficiency          of the evidence in  support of the jury's finding of liability on          Count VI or  on Count X.  The only  argument raised by appellants          with respect  to  Count  VI is  an  argument  regarding  pleading          deficiency  that  we have  rejected  as  wholly without  support.          Moreover, because  we have  determined that the  judgment against          the individual  Arsenal appellants is supported  by jury findings          on Count VIII and Count IX, we have no reason to consider whether          appellants are independently  liable under Count VI,  Count X, or          both.                    The  judgment against Arsenal  Auto Repairs, Inc. which          is also an  appellant in this action, is  supported by the jury's          finding of  liability on  Count X,  the civil conspiracy  theory.          Arsenal Auto has not challenged  the sufficiency of the  evidence          supporting the jury's finding with respect to its liability under          Count X.   The judgment against Arsenal Auto is  affirmed for the          reasons stated in other parts of this Opinion.                    The   judgment   against   appellant  Arhaggelidis   is          supported  by the  jury's finding  of liability  on Count  X, the          civil  conspiracy theory.    We conclude  that  the evidence  was          sufficient to support the  jury's finding against Arhaggelidis on          Count X.                    From this summary, it is clear that  one of appellants'          assertions  is  true:    the  relationships  among  transactions,          defendants,  and  legal  claims  are  complex  both  legally  and          factually.   A question remains,  however, as to  how, if at all,                                         -10-          any of those complexities or all of them taken together bear upon          any of the issues before this court on appeal.                    Nowhere in the trial record, or in their  briefs before          this court, except in  a passage from their brief  that is quoted          in  Part III, infra, and  an argument that  the consolidated case                        _____          was too  complex for a  jury to understand, App.  Brief at 59-61,          did the appellants ever  clearly formulate an argument or  set of          arguments based upon their hints and innuendos about complexity.                    Nevertheless, we have read  with special care all parts          of the briefs containing such hints or suggestions.  We have done          so,  first, to  be certain  we have  not overlooked  any argument          presented  and, second, to assure that we have taken into account          any cited cases that  might bear upon the  issues presented by  a          fact pattern  as  complex as  that before  us, with  interlocking          personal, family, and institutional relationships.                    Entirely apart  from the complexities added  by RICO, a          risk of confusion has long existed because of relationships among          different legal and factual theories  of conspiracy that might be          invoked by the parties or  by a court.  The law bearing  upon the          potential   consequences  of   invoking  different   theories  of          conspiracy is  more extensively developed in  criminal cases than          in  civil.  Even with  respect to the  criminal context, however,          relevant statutes  and precedents  provide only  limited guidance          for structuring factual and legal analysis.                    In criminal  cases, issues arise often  with respect to          whether a case should be viewed as one involving:                                         -11-                    (1)  a  single  conspiracy of  many  parties,  multiple          objectives, and broad sweep;                    (2) multiple independent conspiracies; or                    (3)  a  nest  of  interlocking  conspiracies  that  may          involve  overlapping  conspiracies  or  smaller,  discrete  inner          conspiracies  of fewer persons and smaller scope that are tied in          with a larger conspiracy  whose members include some but  not all          of the members of the discrete inner conspiracies.                      See, e.g., United States v. Glenn, 828 F.2d                      _________  _____________    _____                    855 (1st Cir. 1987).          One  result of  this  range of  possible  interpretations of  the          evidence in a particular case is that a question concerning legal          theory and  arguments based upon it,  and concerning instructions          explaining the law to the jury, is difficult and "is probably not          susceptible to an abstract answer unrelated to context."                      United  States v. Oreto,  No. 91-1769, slip                      ______________    _____                    op. at 19 (1st Cir. Oct. 4, 1994).                    The persons  alleged to be RICO  conspirators and civil          conspirators in the present case, like those charged under a non-          RICO conspiracy theory in Oreto                                    _____                      have engaged in a series  of transactions                      that could be viewed as a set of separate                      conspiracies,  or one  overall conspiracy                      embracing numerous wrongful transactions,                      or . . .  both an overarching  conspiracy                      and   a   nest   of  underlying   smaller                      conspiracies.   Partly this  is a problem                      of  proof  and   inference;  partly   the                      problem  arises  from  trying to  squeeze                      into  the  conceptual  cubbyhole  of  "an                      agreement"  activities  that in  practice                      often have the  more shapeless  character                      of    an    evolving    joint    criminal                      enterprise.                                         -12-                      Id.  at  20  (citations  and  reference  to                      ___                    double jeopardy omitted);                      see also  United  States v.  Sep lveda,  15                      ________  ______________     _________                    F.3d  1161, 1191  (1st Cir. 1993),  114 S.Ct.                    2714    (1994)("[T]he     fact    that    the                    organization's  methods  and tactics  evolved                    over time  did not dictate a  finding of two,                    three, or four separate conspiracies.").                    In a  criminal context, the prosecutor  is allowed some          choice  of  theory,  though  the  choice  may  be  burdened  with          consequences,  including  those incident  to  the  law of  double          jeopardy.                    In a  civil context,  likewise, parties may  be allowed          some choice  of theory.   But  the choice,  in the  civil context          also, may  be burdened with  consequences -- a point  to which we          return below.                    In this  case, added  layers of complexity  incident to          relationships  among  theories exist,  not  only  because of  the          relationships  between different  conspiracy  counts --  Count IX          (RICO  conspiracy) and  Count  X (civil  conspiracy) --  but also          because of the  relationships among these  counts and the  counts          alleging  RICO  substantive  violations (Counts  VII  and  VIII).          Also, as in criminal  cases, see, e.g., Oreto, No.  91-1769, slip                                       _________  _____          op.  at 19, an answer as to  what significance, if any, the legal          and factual theories may have, must be context sensitive.                    Because procedural law allows  alternative contentions,          parties to  a civil action involving such an array of factual and          legal  theories as  this case  presents may  be allowed  to defer          choice at least  until late  stages of proceedings  in the  trial          court.   For example, both  plaintiffs and defendants  in a civil                                         -13-          case may be allowed to maintain alternative contentions at  least          until the evidence  is closed,  when the court  may require  some          choices  to be  made about  the  form of  verdict to  be used  in          submitting the case to the jury -- see Fed.  R. Civ. P. 49 -- and                                             ___          about instructions  to the jury.   When a party does  not request          either  a  "special  question"  or an  instruction  submitting  a          particular theory of conspiracy  to the jury, that party  makes a          choice that  has the  associated consequence of  almost certainly          precluding the assertion  after verdict of the  omitted theory of          conspiracy.   See,  e.g.,  Fed.  R.  Civ.  P. 49.    The  law  (a                        __________          procedural  rule, in  this instance)  allows choice,  but it  may          limit  the scope  of  choice by  defining  consequences that  are          attached  to each of the  available options, rather than allowing          complete  freedom of choice.   A  party making  a choice  of this          kind, among legally defined options only, is making an "election"          in the classic sense.  See John S. Ewart, Waiver  or Election, 29                                 ___                ___________________          Harv. L. Rev. 724 (1916).                    Of  course, a  trial  court may  in some  circumstances          allow  submission to  a  jury  of  two  or  more  theories,  with          appropriate instructions explaining as to each theory the factual          elements the jury must  find to return a verdict  sustaining that          theory.   The  different  theories submitted  to  a jury  may  be          factually  compatible  --  that  is,   a  verdict  sustaining all          theories  submitted  may  be  permissible.   Also,  however,  the          evidence and the different theories of  conspiracy submitted to a          jury in a particular  case may be so factually  incompatible that                                         -14-          the  jury's choice is  limited to finding  one or another  of the          theories supported, but not all.                    In the present case, the trial judge, in submitting the          case to the jury, used a verdict form that at  first glance might          appear  to  be  a  submission  on  "special questions,"  with  no          "general  verdict,"   under  Fed.  R.  Civ.  P.  49(a).    Closer          examination,  however, of both the verdict form and the record of          colloquies about  it, discloses  that the court  required only  a          general verdict of  the jury, under Fed. R. Civ.  P. 49(b), as to          each claim  against each  defendant, after elimination  of claims          that were alleged but  as to which either the court  rejected the          claim  as a  matter  of law  (the association-in-fact  conspiracy          theory  alleged in  Count VII) or  Aetna elected  not  to request          submission to the jury.                    The  submission of  a separate  question requiring  the          jury to report  an answer as to  each of at least 122  of the 176          allegedly  fraudulent  claims  was  necessary   because  disputed          factual issues were presented not only with respect to whether an          alleged  RICO   conspiracy  and  the   alleged  RICO  substantive          violations existed, and, if so, what defendants were liable under          each  theory,  but  also with  respect  to  whether  each of  the          transactions  was   within  the   scope  of  the   conspiracy  or          substantive violation.  The  answers have a bearing on  the terms          of  the judgment  to  be entered,  even  though the  trial  judge          determined  (supportably,  we  have  concluded)  that no  genuine          dispute of fact existed as to the amount paid by Aetna on each of                                         -15-          the 112 claims the jury found to be fraudulent.                    In summary, we conclude  that the verdicts and judgment          for  plaintiff  against  the  appellants  are  supported  by  the          evidence received in this case, and by law.                                         -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 & 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 &  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 & 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&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&B  Autobody defendant  to          defraud Aetna.                    The   jury,  with  support   in  evidence,  found  that          Rodco/P&B  Autobody was  associated with  thirty-seven fraudulent          claims that were submitted to Aetna, and that Betty  Arhaggelidis          was directly involved in six of those claims.                    From the  evidence at trial, the  jury reasonably could          find  also  that Ms.  Arhaggelidis  "acted in  concert"  with her                                         -40-          husband, the owner  of Rodco/P&B Autobody,  pursuant to a  common          design.  All  six claims  with which she  was connected  involved          claimed damage  purportedly repaired at Rodco/P&B  Autobody.  All          six  claims were supported by  appraisals by Mr.  Cummings, a co-          defendant.  Her husband, Petros Arhaggelidis, allegedly  repaired          many  of the  cars personally.   Evidence  was received  that she          represented  to  Aetna that  the repairs  had  been made.   Also,          evidence  was received of other fraudulent conduct on the part of          Mr. Arhaggelidis:   he was a claimant  on several claims the jury          found  to be  fraudulent, and  he made  payments to  Mr. Cummings          totalling  over $35,000, which the jury could have inferred to be          bribes.   From the evidence as  a whole, the jury  could infer an          agreement between Betty Arhaggelidis and her husband, under which          they played different roles, but nevertheless acted together with          a common design to defraud Aetna.                        IV.  SUBMISSION OF CLAIMS TO THE JURY                        IV.  SUBMISSION OF CLAIMS TO THE JURY                    The Arsenal appellants argue  that only sixteen  claims          involving the  Arsenal defendants  should have been  submitted to          the  jury,  instead  of  the thirty-three  claims  involving  the          Arsenal defendants on which  evidence was heard.   The appellants          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 & 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-
