                  UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT

                                           

No. 90-1174

                    UNITED STATES OF AMERICA,

                            Appellee,

                                v.

                      SHELDON ARTHUR YEFSKY,

                      Defendant, Appellant.

                                           

           APPEAL FROM THE UNITED STATES DISTRICT COURT

                FOR THE DISTRICT OF MASSACHUSETTS

        [Hon. David S. Nelson, Senior U.S. District Judge]
                                                         

                                           

                              Before

                     Torruella, Circuit Judge,
                                             
                  Coffin, Senior Circuit Judge,
                                              
                     and Cyr, Circuit Judge. 
                                           

                                           

  Theodore L. Craft for appellant.
                   
  Louis M. Fischer,  Attorney, Department of  Justice, with  whom A.
                                                                    
John Pappalardo, United States Attorney, was on brief for appellee.
             

                                           

                           May 3, 1993
                                           

                               -1-

     COFFIN, Senior Circuit Judge.   Sheldon Yefsky was convicted
                                 

by a jury of  a dual-object conspiracy, in violation of 18 U.S.C.

   371 and  1341, and of four counts of  mail fraud, unrelated to

the conspiracy,  in violation of  18 U.S.C.    1341.  On  appeal,

Yefsky raises a number of challenges to his conviction.  After an

exhaustive review of the record, we affirm.

                                I.

     We   begin  with  a  brief  description  of  the  facts  and

proceedings.

     The Greater  Boston Police Council (GBPC) was  formed in the

early 1960s as a mutual aid society for various metropolitan area

law enforcement  agencies.    The  GBPC enabled  its  members  to

purchase equipment  at  reduced  prices  pursuant  to  collective

purchase agreements.  As  an unincorporated association, the GBPC

relied on one of its members to act as its fiduciary agent.  

     At  all times  relevant to  this case,  the Town  of Newton,

whose police chief William Quinn served as the chair of the GBPC,

fulfilled that role.   Quinn, in turn, relied heavily  on Timothy

Coogan, a civilian employee of the police department, to  conduct

the  daily operations  of the  GBPC.   Coogan became  a full-time

employee  after   graduating  from  law  school   and  ended  his

affiliation with Newton in mid-1985, when the offenses underlying

this case surfaced.

     A  primary  concern of  the GBPC  was  the inability  of the

member  police  departments to  communicate  with  each other  by

radio.   To solve this  problem, the GBPC  undertook a project to

develop  an integrated radio system for its members.  This system

became known  as the Boston  Area Police Emergency  Radio Network

(BAPERN).  

     In  1975, the GBPC hired  a Chicago-based firm, Computer and

Engineering  Services (CES),  of  which Yefsky  is president,  to

assess  the  existing radio  systems.   One  year later,  CES was

awarded a bid contract of $31,000 to design and implement BAPERN.

The  system used  Motorola equipment,  which  was available  at a

discount through a GBPC collective purchase contract.  

     By June  1978, BAPERN  was fully operational,  connecting 23

cities  and  towns, and  Coogan  had  became the  BAPERN  project

director  and general counsel and administrator for the GBPC.  In

these capacities, Coogan  exercised financial and  administrative

control  of  GBPC  affairs,  including the  BAPERN  project.   He

encouraged organizations  to join  BAPERN and recommended  CES to

them  for  engineering and  design work.   Coogan  alone received

shipping  orders  from  BAPERN  members  to  the  GBPC,  prepared

GBPC/Newton  shipping  orders  to  CES  and   Motorola,  approved

invoices from  these businesses  to the GBPC/Newton  for payment,

prepared bills  from the GBPC/Newton  to the BAPERN  members, and

received  the  members'  payments.   Newton  officials, including

Quinn,  merely  rubber stamped  his work.    Coogan was,  in many

respects, the person most identified with the GBPC. 

     In  1985,  the  Internal  Revenue  Service  (IRS)  began  an

investigation of  Coogan, which revealed large  amounts of income

that he  had not  reported to  the  IRS.   The unreported  income

                               -3-

stemmed  from two  sources.   First,  Coogan  had become  a  paid

consultant  to  International  Telecommunications  Service,  Inc.

(ITS),  a subsidiary of CES, to perform engineering field work on

the  BAPERN system.  Second,  Coogan had overcharged GBPC members

for radio equipment and  had diverted the overcharge to  a secret

bank account for his personal use.

     In  1989,  Coogan,  Yefsky,  his  son  Michael  Yefsky,  the

president of ITS,  and Samuel Diamond, the financial  officer and

tax preparer for CES and ITS, were charged with numerous criminal

violations stemming from their involvement in the BAPERN project.

The indictment charged  the existence of two  separate schemes to

defraud members of  the GBPC  and charged Coogan  alone with  tax

fraud  for  concealing  his  illicit profits  from  both  schemes

(Counts 2-4).  

     The first scheme charged was a conspiracy involving all four

defendants (Count  1).  The goals  of the conspiracy were  to pay

Coogan  kickbacks for sending engineering work to CES and to help

him hide  that income  from  the IRS.    The kickbacks  were  the

payments ITS made  to Coogan, allegedly  for his field  services.

At  trial,  the  government  explained that  the  kickbacks  were

financed by  charging GBPC members for  engineering services that

were  unnecessary or  never were performed or by overcharging for

work actually done.

     The second intrigue implicated  Coogan and Yefsky in a  mail

fraud scheme based on  the equipment overcharge and  diversion of

funds  for Coogan's personal  use (Counts 5-14).   The government

                               -4-

consistently has admitted  that this was  a scheme distinct  from

the  engineering conspiracy.   The  mailing of  ten payments  for

equipment, maintenance fees, and  BAPERN expansion fees by member

organizations comprised the individual mail fraud counts.

     A  tedious and  rambling  trial stretching  86 days  ensued.

Over 1000 exhibits were  admitted, with more than half  subjected

to  limitations as  to the  various counts  and defendants.   The

government alone consumed 44 days and 878 exhibits to present its

case-in-chief.  Yefsky used  another 24 days and 376  exhibits to

present  his defense.  The thrust of  his defense was that he did

not join in either the conspiracy or the equipment scheme but was

a pawn of Coogan.

     At the trial's  conclusion, the jury convicted Coogan of all

14 counts against  him.   It convicted Yefsky  of the  conspiracy

count  and 4  of the  10 mail  fraud counts.   It  also convicted

Michael  Yefsky  and Diamond  of the  conspiracy count,  the only

charge against them.  

     During the proceedings below,  Yefsky made many motions, the

decisions of which form the bases  of this appeal.  These motions

include  a motion  for acquittal  based on  insufficiency of  the

evidence; a  motion to  dismiss the indictment  for insufficiency

and  double  jeopardy; a  motion  for severance;  and  an omnibus

motion for a new  trial that reiterated  many of these issues  as

well as errors at trial.

     Yefsky, his  son,  and Diamond  appealed their  convictions.

The government  then conceded  the insufficiency of  the evidence

                               -5-

supporting the convictions of Michael Yefsky and Diamond, and the

verdicts  against them  were  set aside  and  dismissed.   United
                                                                 

States v. Yefsky, Memorandum and Order, Nos. 90-1222,  -1240 (1st
                

Cir.  Jan.  29, 1993).   Coogan  did  not appeal  his conviction.

Yefsky's appeal remains, and we turn now to the issues he raises.

                               II.

     Yefsky contends that the district court erred in denying his

motion, renewed  at  close  of  trial,  for  acquittal  based  on

insufficiency  of   evidence.    When  reviewing   a  motion  for

acquittal, we  consider the evidence in the  light most favorable

to the prosecution.  United States v. Torres Lopez, 851 F.2d 520,
                                                  

527  (1st Cir.  1988).   We,  therefore,  "draw[] all  legitimate

inferences  and resolv[e] all credibility determinations in favor

of the verdict."  United  States v. Angiulo, 897 F.2d 1169,  1197
                                           

(1st Cir. 1990).

A.  The Conspiracy Count
                        

     To  support a verdict of guilt, the evidence must prove each

element  of  a  conspiracy  beyond a  reasonable  doubt.    These

elements  are  the existence  of  a  conspiracy, the  defendant's

knowledge of it, and  his voluntary participation in it.   United
                                                                 

States v.  David, 940 F.2d  722, 735 (1st  Cir. 1991).   To prove
                

voluntary  participation,  the  government  must  show  that  the

defendant intended both to agree with his  co-conspirators and to

commit  the  substantive  offense.    Id.    Moreover,  when  the
                                         

commission  of  mail  fraud is  a  goal  of  the conspiracy,  the

government must  show either an  intent to use  the mails or  the

                               -6-

reasonable foreseeability of  such use.   United States v.  Dray,
                                                                

901  F.2d 1132, 1137 (1st  Cir. 1990).  We turn  now to the facts

that the jury reasonably could find in support of the verdict. 

     In  1979,  the relationships  among  the  GBPC, Coogan,  and

Yefsky  changed, allowing  the conspiracy  to germinate.   First,

Coogan  was forced  to leave  regular employment with  the Newton

Police  Department  because  he  was maintaining  a  private  law

practice.   He became instead a consultant to the Department and,

in 1980, to  the GBPC.   His duties, however, remained  the same:

assistant   to  Quinn   (as   police  chief   and  GBPC   chair),

administrator of  and general  counsel to  the GBPC,  and project

director  of BAPERN.  In addition, his contracts permitted him to

engage in other telecommunications consulting work.

     Second,  government funding  and  oversight  of  the  BAPERN

project  ended.   Coogan then  prepared an  open-ended consulting

contract  for CES that defined  its role during  the expansion of

BAPERN.  The new  contract called for CES to  provide engineering

services as requested by shipping orders issued through Newton on

behalf of the GBPC members.

     The CES  contract did not  permit CES to  use subcontractors

without written  consent from  Newton.  Nonetheless,  in December

1979, CES entered a contract with ITS  by which ITS would perform

field  implementation  studies  and   services  for  various  CES

projects, including  BAPERN, and CES would pay ITS's salaries and

overhead expenses.  

                               -7-

     At some point during  this period, Coogan approached Yefsky,

proposing  to become  CES's local  "clerk of  the works"  for the

BAPERN project.  In December 1979, Coogan entered a contract with

ITS to provide field  engineering; site, installation and testing

supervision;  and  training for  the  BAPERN  expansion.   Unlike

Yefsky's other  subcontractors, Coogan was paid a fixed price for

each project  on which he worked  and was not  required to submit

time  sheets to corroborate his  fee.  Neither  Yefsky nor Coogan

ever  revealed their  subcontracting  relationship  to the  GBPC.

Coogan, in fact, repeatedly denied to Chief Quinn engaging in any

outside telecommunications consulting work.  

     From 1980  to mid-1985, 25  to 30  organizations joined  the

BAPERN  system.   Coogan  recommended CES  to  many of  them  for

engineering work.  As a result, CES's  income skyrocketed; during

this  period,  the  firm   received  approximately  $964,000  for

engineering services relating to  BAPERN.  More than half  of the

payments were for field work billed by Coogan.   Coogan, in turn,

received approximately $484,760  from ITS for his  services.  CES

reimbursed  ITS for  this and other  expenses, pursuant  to their

subcontract.

     Many  of  the  payments  for engineering  were  inflated  or

unnecessary.  Yefsky  himself testified that he had not performed

work  for  some  of the  police  departments  that  had paid  for

engineering  services.   Some departments  also paid more  to the

GBPC than CES had billed  GBPC.  Payments routinely were sent  to

the GBPC by mail.

                               -8-

     Coogan did  not report his ITS  income to the IRS.   Nor did

ITS  file Forms 1099 with the IRS  to reflect payments to Coogan.

ITS  did, however, list the consulting  fees as business expenses

on  its corporate tax returns.   CES also  listed its payments to

ITS as business expenses.1

     From these facts, the jury reasonably could draw a series of

inferences  to  connect Yefsky  to the  mail  fraud prong  of the

conspiracy.   The jury could find that, once government oversight

ended, Coogan and Yefsky grasped an opportunity to make money out

of the BAPERN project.  Thus,  it could find that Coogan  drafted

the open-ended CES contract  so that CES could pay  him kickbacks

to steer  work orders to  CES.  It  also could find that  CES and

Coogan  financed  the kickbacks  by  charging  inflated fees  for

engineering work actually performed  or completely false fees for

work never  performed.   Accordingly, the  jury  could find  that

Yefsky and Coogan agreed  to enrich themselves by  defrauding the

members of BAPERN.

     Because we find the  evidence sufficient to support Yefsky's

conviction of  conspiring to  commit  mail fraud,  we uphold  his

conviction on Count 1 without  considering the sufficiency of the

evidence  supporting the tax fraud object.  See Griffin v. United
                                                                 

States, 112 S.  Ct. 466, 473-74  (1991) (evidence supporting  one
      

                    

     1   CES and ITS had  taken deductions for their  payments to
Coogan.  But they were never indicted for tax fraud in connection
with the  kickback  scheme.    Although the  two  companies  were
audited  by the  IRS, they  were not  required to  pay additional
taxes for the years in question.

                               -9-

object  of  dual-object  conspiracy held  sufficient  to  support

conspiracy conviction).  

B.  The Mail Fraud Counts
                         

     The indictment charged  Yefsky and Coogan with ten counts of

mail fraud  in connection  with the equipment  overcharge scheme.

Each mailing  represented a  payment from  a  BAPERN member  that

Coogan diverted to his secret bank account.  Yefsky was convicted

of four of the ten counts.  

     A conviction for mail fraud2  requires proof of two elements

beyond   a  reasonable   doubt.     They   are  the   defendant's

participation in a  scheme to defraud and  the use of the  mails,

either  by or  caused by  the defendants,  in furtherance  of the

scheme.  United States v. Serrano, 870 F.2d 1, 6 (1st Cir. 1989).
                                 

The  defendant  need  not instigate  the  scheme  so  long as  he

willfully  participates   in  it,  with  the   knowledge  of  its

fraudulent  nature  and with  the intent  to achieve  its illicit

objectives.   Id. (citing United  States v. Price,  623 F.2d 587,
                                                 

591 (9th Cir. 1980)).  

                    

     2   The mail fraud  statute, 18 U.S.C.    1341, provides  in
relevant part:

     Whoever,  having devised  or  intending  to devise  any
     scheme or  artifice to defraud, or  for obtaining money
     or property by means  of false or fraudulent pretenses,
     representations, or promises, . . . for the purpose  of
     executing such  scheme or artifice or  attempting so to
     do  . . . takes  or receives [from  the Postal Service]
     any such matter  or thing,  or knowingly  causes to  be
     delivered by mail according  to the direction thereon .
     . . shall be  fined not more than $1,000  or imprisoned
     not more than five years, or both.

                               -10-

     A  mailing falls  within the  scope  of the  fraud if  it is

sufficiently connected to the scheme to defraud and reasonably is

foreseeable as  a result of  the participants'  actions.   United
                                                                 

States  v.  Pacheco-Ortiz, 889  F.2d  301, 305  (1st  Cir. 1989);
                         

United States v. Silvano, 812 F.2d 754, 760 (1st Cir. 1987).  The
                        

mailing  of proceeds  of  a fraudulent  scheme  is sufficient  to

uphold  a conviction  for mail fraud.   Silvano, 812  F.2d at 760
                                               

(citations omitted).  

     Yefsky challenges the sufficiency of evidence linking him to

the scheme to defraud and to the mailings.  Because each count of

which  he  was convicted  undisputedly  represents  a mailing  of

proceeds of the scheme, Yefsky's convictions must be  affirmed if

the evidence  sufficiently  supports  his  participation  in  the

scheme to overbill  for equipment.   We turn,  therefore, to  the

evidence of Yefsky's participation in the equipment scheme.

     In 1982, the  GBPC negotiated a  new contract with  Motorola

for the purchase  of equipment.   Yefsky assisted  Coogan in  the

negotiations,  which  resulted  in  deeper  discounts for  BAPERN

members.    Coogan then  began  to bill  BAPERN  members inflated

prices  for Motorola  equipment.   He also  provided false  price

lists, representing  them as part  of the  Motorola contract,  to

corroborate the prices he charged.  A Motorola employee testified

at trial that a comparison of Motorola bills with GBPC bills  for

equipment revealed that Coogan  had overcharged BAPERN members by

at least $888,000.

                               -11-

     Coogan deposited  the overcharge into a  bank account opened

under GBPC's name but without its knowledge or authorization.  He

was the  only  person  authorized  to withdraw  funds  from  this

account.   By December 1984, over $1.5 million had been deposited

into the account.   Coogan diverted this money for  personal use,

such as purchasing certificates  of deposit and paying mortgages.

The  government  conceded at  oral  argument that  Yefsky  had no

knowledge of this account and did  not share in the proceeds from

the overcharge.

     Yefsky,  however,  was  present  at meetings  when  inflated

prices  were quoted and discussed.  He also recommended the kinds

of equipment to be purchased to organizations joining  BAPERN and

included   inflated  price   lists,  obtained  from   Coogan,  in

feasibility studies he conducted for two organizations.

     The facts  connecting Yefsky to the equipment scheme are not

as  numerous   as  those   connecting  him  to   the  engineering

conspiracy.   Nonetheless,  the jury  could conclude  that Yefsky

knew that the equipment prices were being inflated because he had

helped to  negotiate the purchase agreement  that established the

legitimate prices.  It could conclude that Yefsky then joined the

equipment scheme  by supporting and using  Coogan's quotations of

inflated  prices.  It also could conclude that Yefsky entered the

scheme   to  ensure   Coogan's  ongoing   participation  in   the

engineering  conspiracy.     These  inferences   and  the   facts

supporting them are sufficient to sustain Yefsky's convictions of

mail fraud.

                               -12-

                               III.

     Yefsky  next  challenges  the adequacy  of  the  indictment,

claiming that the engineering fraud prong of the conspiracy count

was  defective because  it did  not specify  the  false pretenses

used.3  He contends that this  defect deprived him of the ability

to  present a meaningful defense.  The district court agreed that

the  count  did  not  specify  the false  pretenses  alleged  but

determined  that the  indictment as  a whole  sufficiently warned

Yefsky  of  the  charges  against him.    Memorandum  and  Order,

December 20,  1988, at  2.  It  therefore refused to  dismiss the

engineering fraud count.   We disagree with  the district court's

decision but find its error harmless.

     Rule  7(c)(1) of  the  Federal Rules  of Criminal  Procedure

requires an indictment to provide "a plain,  concise and definite

written statement of the essential facts constituting the offense

charged."  The Supreme Court has instructed that an indictment is

sufficient  if it contains  the elements of  the offense charged,

fairly informs the defendant of the charges against which he must

defend, and  enables him to enter  a plea without fear  of double

jeopardy.  Hamling  v. United  States, 418 U.S.  87, 117  (1974);
                                     

accord,  United States  v. Serino,  835 F.2d  924, 929  (1st Cir.
                                 

                    

     3  The original indictment  charged the engineering fraud in
Count 5 as a  conspiracy separate from the tax  fraud conspiracy.
When the district court ordered that the two be consolidated, the
allegations of the engineering fraud  were incorporated virtually
verbatim into Count 1.  Thus,  Yefsky's motion to dismiss Count 5
applies on appeal to Count  1 of the superseding indictment.   We
refer  to the original Count 5 as the "engineering conspiracy" or
the "engineering  fraud" to  avoid confusion with  the tax  fraud
prong of the conspiracy now charged.

                               -13-

1987).  The indictment  may incorporate the words of  the statute

to  set forth the offense,  but the statutory  language "`must be

accompanied with such a statement of the facts  and circumstances

as  will inform the accused of the specific offense, coming under

the  general description, with  which he is  charged.'"  Hamling,
                                                                

418 U.S. at 117-18 (quoting United States v. Hess,  124 U.S. 483,
                                                 

487 (1888)).   An indictment  for conspiracy,  however, need  not

allege the  predicate  offense with  the  same precision  as  the

substantive count.   Wong Tai v.  United States, 273 U.S.  77, 81
                                               

(1927); United States v. Fusaro, 708 F.2d 17, 23 (1st Cir. 1983).
                               

     Focusing on this last  principle, the government argues that

the  indictment  passes muster.    It urges  that  the challenged

count's  imprecision   regarding  the  mail  fraud  objective  is

irrelevant.   Because the count  clearly charged an  agreement to
                                                              

defraud  by use of the  mails, the government  argues that Yefsky

was able to prepare a defense to the conspiracy charge.

     We disagree.  "`Where guilt depends so crucially upon such a
                                                                 

specific identification  of fact,  our cases have  uniformly held
                                

that an indictment must  do more than simply repeat  the language

of the criminal  statute.'"   Hamling, 418 U.S.  at 118  (quoting
                                     

Russell  v. United States, 369 U.S. 749, 764 (1962)) (emphasis in
                         

Hamling).   We think a mail fraud conspiracy depends so crucially
       

on the underlying fraud  that the fraud also must be specified in

the applicable count.

                               -14-

     We reach this conclusion based on the unusual nature of mail

fraud.   A  multi-member  mail fraud  is  itself treated  like  a

conspiracy.   See  Serrano,  870 F.2d  at  6 (multi-member  fraud
                          

requires each member  to participate in common scheme with intent

to  commit fraud); see  generally United  States v.  Wormick, 709
                                                            

F.2d 454,  461 (7th Cir. 1983) (applying conspiracy principles to

multi-defendant mail  fraud indictment).   Thus, the  engineering

conspiracy  count essentially  charged  Yefsky  with agreeing  to

commit  another conspiracy.4   Yefsky  could not  be expected  to

defend himself from a  charge of conspiring to join  a conspiracy

to  perpetrate a  fraud if  the indictment  did not  identify the

fraud that was the ultimate underlying offense.  

     It is  undisputed that the engineering  conspiracy count did

not identify  the  plan used  to  defraud the  GBPC.   The  count

alleged  only that Coogan had  used his control  over the GBPC to

arrange  CES's  open-ended  engineering contract  in  1979,  that

Coogan  had signed a contract with ITS to provide field services,

that CES received approximately  $964,000 under its new contract,

and that ITS paid Coogan $484,760.  None of these allegations, on

their face, describe  fraudulent conduct.  The  count then stated

in conclusory  language drawn from  the mail  fraud statute  that

Coogan  had obtained  this money  from the  GBPC  members through

false pretenses.  It  did not divulge  the factual basis of  this

                    

     4   Yefsky,  of course,  could have  been charged  with both
conspiracy  to   commit  the  engineering  fraud   and  with  the
substantive  mail fraud  without  risking double  jeopardy.   See
                                                                 
infra Section VI.
     

                               -15-

accusation.   Accordingly, the count did not  provide Yefsky with

adequate notice of the  charge against him.  Cf. United States v.
                                                              

Nance, 533 F.2d 699,  702 (D.C. Cir. 1976) (noting  with approval
     

mail  fraud  count  that  specifies  misrepresentations);  United
                                                                 

States v. Curtis, 506  F.2d 985, 990 (10th Cir.  1974) (citations
                

omitted)  (dismissing mail  fraud indictment that  excludes false

pretenses).

     The district  court, however, upheld the  sufficiency of the

indictment  because  it  held  that "such  specification  can  be

inferred from a  reading of the  entire indictment."   Memorandum

and Order at 2.  The substantive mail fraud counts specified that

Coogan  and Yefsky had charged inflated rates for equipment.  The

court reasoned that the  similarity of the engineering conspiracy

and the substantive equipment  scheme enabled Yefsky to determine

that the false pretenses  used for the conspiracy must  have been

overcharges for engineering services.

     Contrary to  the district court's ruling,  the deficiency in

the count was not curable  by reading the indictment as  a whole.

"`Each count in an indictment is regarded as if it was a separate

indictment.'"   United States v. Winter, 663 F.2d 1120, 1138 (1st
                                       

Cir.  1981) (quoting  Dunn v.  United States,  284 U.S.  390, 393
                                            

(1932));  1 Charles  A. Wright,  Federal Practice  and Procedure:
                                                                 

Crim.  2d (Federal Practice and  Procedure)   123  at 349 (1982).
                                          

Thus, each  count must be  sufficient without reference  to other

counts  unless  the allegations  of  those  counts expressly  are

incorporated.  Winter, 663 F.2d at 1138 (quoting United States v.
                                                              

                               -16-

Fulcher,  626 F.2d 985, 988 (D.C. Cir. 1980)); 1 Federal Practice
                                                                 

and Procedure   123 at 349.  The engineering conspiracy count did
             

not incorporate  any of the allegations  underlying the equipment

fraud  counts.  We therefore review it standing alone, and, as it

was written, the engineering conspiracy count was defective.

     Indeed, there is no reason for the conspiracy count to refer

to  the separate equipment fraud counts.  Although it makes sense

to read a conspiracy  indictment as a whole when  the substantive

offenses  also are  the objects  of the  conspiracy,   see, e.g.,
                                                                

Fusaro, 708 F.2d at 23, the substantive mail fraud counts in this
      

case did not flow  from the conspiracy count.   The substantively

charged  scheme   encompassed  overcharges  for   equipment,  not

engineering, and, throughout trial, evidence of the two different

overcharges was limited to the  appropriate counts.  We  consider

it disingenuous  of the  government to abandon  this distinction,

which  it  repeatedly has  emphasized, when  the blurring  of the

schemes conveniently serves a specific argument.

     The  finding  of  error  does  not,  however,  conclude  our

inquiry.    We still  must determine  whether  the defect  in the

indictment prejudiced Yefsky.  Fusaro,  708 F.2d at 23 (citations
                                     

omitted).   Having reviewed the record  and considered the impact

of  the error  on the  jury, we  conclude "`with  fair assurance,

after pondering all that happened without stripping the erroneous

action  from  the  whole, that  the  [jurors']  judgment  was not

substantially swayed by the error.'"  United States v. Burke, 948
                                                            

F.2d  23, 27 (1st Cir. 1991) (quoting United States v. Mazza, 792
                                                            

                               -17-

F.2d 1210,  1216-17 (1st Cir. 1986) (quoting  Kotteakos v. United
                                                                 

States, 328 U.S. 750, 765 (1946))).  
      

     Although the  indictment itself did  not warn Yefsky  of the

nature of  the engineering  conspiracy, he received  ample notice

before  trial of the facts  underlying it.   Months before trial,

the district  court's decision on his motion informed Yefsky that

"it  would  have  been  necessary  for the  defendant  to  charge

inflated  rates  in  order  to  make  the  alleged  kickbacks  to

defendant  Coogan."   Memorandum and  Order at  2.   In addition,

documents provided by  the government  during discovery  revealed

the  overcharges   that  formed  a  basis   for  the  engineering

conspiracy.   Yefsky,  moreover,  took  24 days  to  present  his

defense, which thoroughly explored  his involvement in the BAPERN

project  and laid the blame for the engineering fraud at Coogan's

feet.   He thus had  ample opportunity to  rebut the government's

charges.  The defect, therefore, was harmless.

                               IV.

     Yefsky also  contends  that the  conspiracy  improperly  was

joined  with  the  substantive  offenses  and  should  have  been

severed.   Alternatively, Yefsky  argues that, because  the joint

trial prejudiced him, the district court should have  severed the

counts and also  should have separated  his trial from  Coogan's.

We deal first with  the question of  joinder and second with  the

question of severance.

A.  Joinder
           

                               -18-

     Rule 8 of  the Federal Rules  of Criminal Procedure  governs

the joinder of offenses.   Offenses may be charged jointly if the

acts or transactions from which  they stem are related.  Fed.  R.

Crim.  P. 8(a),  (b).    Yefsky  contends  that  joinder  of  the

conspiracy, tax fraud, and mail fraud counts was improper because

each set of offenses was comprised of a discrete  series of acts.

The district court determined that despite the distinct nature of

the three  offenses, the  acts underlying them  were sufficiently

connected for the offenses to be joined.  Memorandum and Order at

3-5.    Our review  of  joinder  is plenary.    United States  v.
                                                             

Natanel,  938 F.2d  302, 306-07  (1st Cir.  1991) (citing  United
                                                                 

States v. MacDonald &amp; Watson Waste  Oil Co., 933 F.2d 35, 59 (1st
                                           

Cir. 1991)).

     Yefsky points  out the  following dissimilarities among  the

counts.   The engineering conspiracy  involved one scheme  to pay

kickbacks to Coogan and to help  him evade tax liability; the tax

fraud encompassed Coogan alone;  and the substantive fraud scheme

entailed  a  distinct plot  to  inflate  equipment prices,  which

overcharge Coogan  alone pocketed.  The  conspiracy also predated

the equipment  overcharge scheme by  three years.   Yefsky argues

that the only common thread in  these charges is Coogan and  that

this single strand is too weak to bind the three offenses.  

     There can be  no doubt  that the tax  fraud counts  properly

were  joined with either the conspiracy or the mail fraud counts.

As the district court noted, it is axiomatic that a defendant can

be  charged with both the conspiracy and the substantive offenses

                               -19-

arising from it.  United States v. Boylan, 898 F.2d 230, 245 (1st
                                         

Cir. 1990); United States  v. Arruda, 715 F.2d 671, 678 (1st Cir.
                                    

1983).   In this  case, the conspiracy embraced  many of the acts

that  constituted the tax fraud  offenses and, therefore, the two

properly were joined under  Rule 8(b).  Similarly, the  tax fraud

and  mail  fraud  counts could  be  joined  because  some of  the

unreported income  was the fruit of  the mail fraud  scheme.  See
                                                                 

United States v. Treadwell, 566 F. Supp. 80, 86-87 (D.D.C. 1983),
                          

aff'd, 760 F.2d 327 (D.C. Cir. 1985). 
     

     The harder  question is whether the conspiracy  and the mail

fraud  counts properly  were joined.   Although  Count 1  accused

defendants of  conspiring to commit mail  fraud, this engineering

conspiracy   differed   from   the   equipment   scheme   charged

substantively  in Counts 5-14.   To determine if  the two schemes

sufficiently  were connected  to the  same series  of acts  to be

joined, we  must consider whether there  is "substantial identity

of  facts  or  participants"  underlying  the  charged  offenses.

United States v. Levine, 546 F.2d 658, 662 (5th Cir. 1977).  Mere
                       

similarity of the  acts would not suffice.  Natanel,  938 F.2d at
                                                   

307; King v. United States, 355 F.2d 700, 703 (1st Cir. 1966).  
                          

     We conclude  that the indictment properly consolidated these

counts.  Both schemes used the same basic mechanism to overcharge

for services and  equipment.   As the district  court found,  the

engineering conspiracy  and the  equipment fraud shared  the same

participants and victims and  overlapped in time.   Both offenses

depended on  the interrelationships  among the GBPC,  Coogan, and

                               -20-

Yefsky for their  operation.  A joint trial  of the offenses thus

avoided  problems  of  inconsistent verdicts  and  repetition  of

testimony.   See United  States v. Doherty, 867  F.2d 47, 63 (1st
                                          

Cir.  1989).  Accordingly, the  acts underlying the offenses were

sufficiently related to warrant joinder.

     A  finding of  proper  joinder does  not,  however, end  our

inquiry.   If  a  defendant is  prejudiced  from the  joinder  of

counts, severance may  be appropriate, pursuant to Fed.  R. Crim.

P.  14.5   We, therefore,  must consider  whether the  benefit of

joinder outweighed the risk of prejudice to the defendant.  King,
                                                                

355 F.2d at 704.

B.  Severance
             

     Yefsky  argues that the district  court erred in refusing to

sever the  engineering conspiracy  from the equipment  fraud6 and

his  trial from  Coogan's.   The decision  to grant  severance is

committed to the  district court's sound  discretion.  Zafiro  v.
                                                             

United  States, 61 U.S.L.W.  4147, 4148-49 (U.S.  Jan. 26, 1993);
              

Natanel,  938 F.2d  at 308.   Severance  is appropriate  "only if
       

                    

     5  Rule 14 provides in relevant part:

     If it  appears that a  defendant or  the government  is
     prejudiced by a joinder of offenses or of defendants in
     an  indictment or  information or  by such  joinder for
     trial  together, the  court  may order  an election  or
     separate  trials  of  counts,   grant  a  severance  of
     defendants  or  provide whatever  other  relief justice
     requires.

     6   We do  not address the question  of severing Counts 2-4.
Because  Coogan was the only defendant charged with tax fraud and
he  has not  appealed, these  offenses will  not be  re-tried and
cannot affect Yefsky on a remand.

                               -21-

there  is a serious  risk that a  joint trial would  compromise a

specific trial right  of one  of the defendants,  or prevent  the

jury  from making a reliable judgment  about guilt or innocence."

Zafiro, 61  U.S.L.W.  at 4148.  Incidental  spillover  prejudice,
      

which is almost inevitable in  a multi-defendant trial, does  not

suffice.   United States v.  Sabatino, 943 F.2d 94,  97 (1st Cir.
                                     

1991); United States  v. Martinez,  922 F.2d 914,  923 (1st  Cir.
                                 

1991).    We will not  reverse a denial of  severance, therefore,

unless  the defendant  makes "`a  strong showing  of prejudice.'"

United States v.  Gray, 958 F.2d 9,  14 (1st Cir.  1992) (quoting
                      

United States v. Font-Ramirez, 944 F.2d 42, 45 (1st Cir. 1991)).
                             

     We look first at the severance of counts.  In his  pre-trial

motion  to  sever, Yefsky  suggested  only that  evidence  of the

amount of money garnered from the equipment fraud would overwhelm

the lack  of evidence  of his  participation  in the  engineering

scheme.   The district court refused to sever the counts, finding

the  mere  allegation  of  potential  spillover  insufficient  to

warrant severance.  Memorandum and Order at 6.  

     We agree with the district court.  It was Yefsky's burden to

articulate  specific ways in which he was prejudiced.  Zafiro, 61
                                                             

U.S.L.W.  at 4149.    To make  the  requisite strong  showing  of

prejudice,  a defendant must "present enough information . . . to

satisfy  the  court  that  the claim  of  prejudice  is genuine."

United States  v. Tracy,  No. 92-1459,  slip op.  at 9 (1st  Cir.
                       

March  29, 1993) (quoting Baker  v. United States,  401 F.2d 958,
                                                 

977 (D.C. Cir. 1968)).  Speculative allegations of prejudice fall

                               -22-

far  short of  the  prejudice  required  to  prove  an  abuse  of

discretion in denying a  motion for severance.  United  States v.
                                                              

Porter,  764 F.2d  1,  13 (1st  Cir.  1985) (citations  omitted).
      

Yefsky did not provide the district court with a factual basis to

determine if his claim of prejudice was genuine.  On this record,

the court did not err in denying the motion to sever counts.7

     Yefsky also contends that  he was prejudiced by  being tried

with  Coogan.  Specifically, Yefsky argues that the weight of the

evidence  against  Coogan,  coupled  with the  lack  of  specific

instructions at  the close  of  trial limiting  that evidence  to

Coogan, prevented him from presenting adequately his defense that

he was merely a pawn in Coogan's scheme.  

     This argument first ignores the fact that Yefsky was charged

with Coogan in a conspiracy and in a  separate mail fraud scheme.

Evidence  against Coogan  thus  was  admissible against  Yefsky.8

                    

     7  On appeal, Yefsky suggests for the first time that he was
prejudiced by  the jury's inability to  differentiate between the
engineering conspiracy and  the equipment scheme.   He bases  his
argument on the fact that the four substantive counts of which he
was convicted involved projects for which he personally performed
engineering work.  Because this argument was not presented to the
district court,  even though Yefsky raised the issue of severance
again  in his  post-judgment motion for  a new  trial, we  do not
consider  it on appeal.  Tracy, slip  op. at 9 n.2 (citing United
                                                                 
States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990)).
                 

     8   Toward the close of trial, the district court determined
that a  preponderance of the evidence  demonstrated the existence
of  a conspiracy, each defendant's  membership in it  at the time
that certain declarations were  made, and that these declarations
were made in furtherance of the conspiracy.  It therefore allowed
the issue of conspiracy to  go to the jury.  See United States v.
                                                              
Petrozziello, 548 F.2d 20, 23  (1st Cir. 1977).  The court  later
            
charged  the jury  that it  could consider  each co-conspirator's
acts and statements in determining a defendant's participation in
the conspiracy.  Yefsky did not challenge this instruction.

                               -23-

Sabatino, 943 F.2d at 96; see Wormick, 709 F.2d at 461  (applying
                                     

conspiracy  doctrines to  multi-member  mail fraud  schemes).   A

separate trial, therefore, would not have availed Yefsky.

     Second, the argument overlooks the fact that mere antagonism

of defenses does not  require severance.  Zafiro, 61  U.S.L.W. at
                                                

4148;  Arruda, 715 F.2d at 679 (citations omitted).  Instead, the
             

tension between  defenses must be so great that a jury would have

to believe  one defendant at the  expense of the other.   Arruda,
                                                                

715 F.2d  at 679.   Yefsky has not  met this standard.   Although

Yefsky proclaimed his innocence  by blaming Coogan, Coogan merely

denied  the occurrence  of  any fraud.    Yefsky cannot  credibly

complain that  a jury believing Coogan's  defense therefore would

find Yefsky guilty.  

     The  district  court, in  fact,  took  appropriate steps  to

minimize  any  spillover  prejudice  Yefsky  might  suffer.    It

routinely  issued  instructions  limiting  the  evidence  to  the

appropriate counts and defendants.  Juries are presumed to follow

such  instructions.   Richardson  v.  Marsh,  481 U.S.  200,  211
                                           

(1987).    It   also  instructed  the   jury  to  give   separate

consideration to  an individual defendant's guilt  on each count.

These instructions were sufficient  to cure incidental  prejudice

from evidentiary spillover.  See Zafiro, 61 U.S.L.W. at 4149.  
                                       

     Rule  14 leaves the  determination of the  risk of prejudice

and any necessary remedy to the court's discretion.  The district

court  weighed the risk to  Yefsky and acted  suitably to protect

him.   Because Yefsky has  not shown any  manifest prejudice, the

                               -24-

district court did not abuse its discretion in denying his motion

to sever.

                                V.

     Yefsky  next  argues  that   the  district  court  erred  in

excluding defense evidence offered at  trial and that the  errors

prevented  him from presenting his defense.  We review each piece

of evidence in turn.

A.  Maxine Yefsky
                 

     Maxine  Yefsky acted  as  bookkeeper for  her husband's  and

son's firms.  She  testified that she had no  accounting training

and had problems  filing correct Forms  1099 with  the IRS.   The

district court  barred her  from testifying about  a conversation

she  had had with Coogan in January  1981 about these forms.  Ms.

Yefsky would have testified that Coogan had told  her not to file

the forms for him  because his office would.   The court excluded

Coogan's statement as hearsay.  

     Yefsky contends  that the court erred  in excluding Coogan's

statement as hearsay.   Yefsky  urges that the  evidence was  not

hearsay because he sought to introduce it only to demonstrate his

wife's reliance on  the statement and  his own lack of  intent to

help Coogan evade taxes.  See United States v. Hicks, 848 F.2d 1,
                                                    

3 (1st Cir.  1988) (evidence  not offered  for its  truth is  not

hearsay).   The government  agrees on  appeal that  the testimony

wrongly was excluded.

     We must consider, however,  whether the error harmed Yefsky.

Lubanski v. Coleco Indus., Inc., 929 F.2d 42, 47 (1st Cir. 1991).
                               

                               -25-

Our inquiry depends  on the centrality  of the evidence  excluded

and  the  prejudicial  effect  of  the  exclusion.    Id.  at  46
                                                         

(citations omitted).   Yefsky argues  that the  error was  highly

prejudicial because it effectively prevented him  from presenting

a defense to the tax  fraud conspiracy.  His defense was  that he

had no knowledge of  and no intent to assist  Coogan's wrongdoing

but was merely a pawn.  

     Our review of  the record  convinces us that  the error  was

harmless.    This evidence  was relevant  only  to the  tax fraud

objective of the conspiracy  count.  As we have  found sufficient

evidence  of  Yefsky's  participation  in  the engineering  fraud

objective,  see Section II supra, the  erroneous exclusion of Ms.
                                

Yefsky's testimony  did not  affect Yefsky's conviction  on Count

1.9

B.  Motorola
            

     Two  Motorola employees  called  by  Coogan testified  about

their involvement with  the BAPERN project.  Both  testified that

they had  made sales proposals  to prospective customers  and had

had conversations  with their supervisors  regarding GBPC pricing

procedures and  policies.   One employee  also testified  that he

knew  of equipment prices quoted by Coogan.  The court prohibited

as  hearsay  testimony  about  the substance  of  the  witnesses'

                    

     9  Moreover, on cross-examination, Yefsky testified that his
wife  had informed him of her conversation  with Coogan.  He also
testified that,  in not filing the  tax forms, she had  relied on
Coogan's  assurance that he would.   His trial  counsel used this
testimony  in  closing  argument  to  support  Yefsky's  defense.
Yefsky himself thus cured  the error, and he cannot  complain now
of prejudice.  

                               -26-

conversations with  their supervisors and their  customers, which

would  have revealed  Motorola's  awareness  of Coogan's  pricing

practice. 

     At trial,  Yefsky attempted  to use  this testimony to  show

that  Motorola had offered BAPERN prices to non-GBPC members.  On

appeal, Yefsky  argues instead that the  testimony was admissible

to demonstrate his  lack of knowledge  that Coogan was  inflating

prices.    The  government   again  concedes  that  the  disputed

testimony  would not be hearsay if offered for the purpose Yefsky

now advances.  But because Yefsky raises this issue for the first

time on appeal, we review the exclusion  for plain error.  United
                                                                 

States v. Young, 470 U.S. 1,  15 (1985).  Yefsky can prevail only
               

if  the error was so egregious that  he suffered a miscarriage of

justice.  Id.
             

     Yefsky does  not meet this standard.  Although the employees

did not testify  about the actual  price discrepancies, they  did

state that they did  not discuss the discrepancies with  the GBPC

chairman.   Yefsky thus was able to argue that Motorola tolerated

the  inflated  prices.    Yefsky  also  called  a  third Motorola

employee who testified that  Yefsky had consulted Motorola before

making  three  price  proposals  and that  those  prices  matched

Motorola's.    Yefsky thus  could argue  that  he did  not assist

Coogan to inflate  equipment prices,  or at least  acted in  good

faith when he quoted prices, and that Motorola did not inform him

of Coogan's overcharging.   Under these circumstances, Yefsky had

                               -27-

adequate  fuel  for  his defense  and  did  not  suffer from  the

exclusion of the testimony in question.

     Yefsky  also  claims  that  the district  court  erroneously

excluded  the depositions of two  police chiefs, which also would

have  shown Motorola's  knowledge  of Coogan's  pricing practice.

Deposition  testimony  is  admissible,  however,  only  when  the

witness  is unavailable.   Fed. R.  Evid. 804(b)(1).   One of the

witnesses actually testified at trial for the government and, so,

clearly was available.   Yefsky has offered no evidence  that the

other witness was unavailable.  No error, therefore, occurred.

C.  Harvard Radio Tower Project
                               

     A Harvard  official testified  about Harvard's entry  to the

BAPERN  system.  Yefsky then tried to  elicit evidence of work he

subsequently performed on the Harvard radio tower.   The district

court excluded  the evidence as  irrelevant.  Yefsky  argues that

the testimony was  admissible as evidence of his good  faith as a

general business practice.

     A  district  court  enjoys  broad  discretion regarding  the

admissibility  of  evidence  on  relevancy grounds.    Conway  v.
                                                             

Electro Switch Corp., 825 F.2d 593, 597 (1st Cir. 1987).  We will
                    

reverse  a court's decision only upon a showing of manifest abuse

of discretion.  Id. (citations omitted).
                   

     Yefsky does  not  make such  a  showing.   At  trial and  on

appeal,  Yefsky concedes that his work on the Harvard radio tower

project  was not connected  to any GBPC or  BAPERN contract.  Nor

was it temporally  related to  BAPERN, for the  project came  two

                               -28-

years  after  he completed  work  on Harvard's  entry  to BAPERN.

Accordingly, the district  court did not abuse  its discretion in

refusing to admit testimony so tenuously connected to  the issues

at hand.10

                               VI.

     Finally, we turn briefly to the issues remaining in Yefsky's

appeal.

A.  Double Jeopardy
                   

     Yefsky  also  raises the  severance  of  counts issue  as  a

problem  of  double jeopardy.   He  claims  that evidence  of the

engineering conspiracy  impermissibly was used to  convict him of

the equipment mail  fraud and  therefore caused him  to be  tried

twice for the   engineering conspiracy.  This claim  is mistaken.

Yefsky properly could be charged  with conspiracy to commit  mail

fraud and  with the underlying  substantive mail fraud.   Boylan,
                                                                

898  F.2d at  245.   Such an  indictment would  not have  exposed

Yefsky to double  jeopardy because the government would  have had

to prove different facts for  each charge.  See Serino,  835 F.2d
                                                      

at 930.  In an indictment for both conspiracy and mail fraud, the

first requires proof of an agreement and an intent to involve the

mails,  and the second requires  proof that the  mails were used.

Dray, 901 F.2d at 1137; United States v. Camiel, 689  F.2d 31, 36
                                               

(3d Cir. 1982).  The  problem Yefsky raises is that the  jury may

                    

     10   In any  event, we  note that  the court  allowed Yefsky
ample  time to delve into  his work on  specific BAPERN projects.
He thus was able to use BAPERN  work to prove his defense of good
faith.

                               -29-

have been unable to compartmentalize the evidence properly.   See
                                                                 

Section IV supra.
                

B.  Jury Charge
               

     Yefsky also contends  that the district  court erred in  not

charging the  jury  that specific  intent  to commit  the  object

offenses was an essential  element of the conspiracy.   The court

instructed  the  jury  that  "[w]hat  is necessary  is  that  the

defendant must have knowingly  and willfully participated in some

way in the unlawful plan with the intent to further  the unlawful

purpose of the  conspiracy."  Tr. Vol.  82 at 20.  We  review the

jury  charge as a whole to determine whether this instruction was

erroneous.  Cupp v. Naughten, 414 U.S. 141, 146-47 (1973).  
                            

     Although the insertion of  "specific" before "intent" may be

preferable,  we find  the jury  charge sufficient.   We  upheld a

similar instruction in United States v. Porter, 764 F.2d 1, 16-17
                                              

(1st Cir. 1985),  which stated, "you would have to  find that the

person  knew that  a conspiracy  existed and  voluntarily entered

into it  with the intent of  achieving the illegal  object of the

agreement".  Here,  the court defined  the terms "knowingly"  and

"willfully" for the jury  before giving the disputed instruction.

In particular,  it defined  "willfully" to mean  "voluntarily and

purposefully with  the specific  intent to  do something the  law

forbids."   Tr. Vol. 82 at 15.  The court thus clearly instructed

the jury that it  had to find that  Yefsky joined the  conspiracy

with the specific  intent to accomplish  the unlawful purpose  of

the   conspiracy,  namely  tax  and  mail  fraud.    Because  the

                               -30-

instruction  adequately covered  specific intent,  Yefsky is  not

entitled to any relief.   United States v.  McGill, 953 F.2d  10,
                                                  

12-13  (1st Cir. 1992); United  States v. Nivica,  887 F.2d 1110,
                                                

1124 (1st Cir. 1989).

     Affirmed.
             

                               -31-
