Professional Documents
Culture Documents
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.
______________
_____________________
____________________
*
____________________
____________________
-3-
fraudulent
scheme,
insurance claims
five
adjusters.
The
automobile body
purpose of
the
appellants,
defendants
in
the
trial
court,
trial.
The
judgment was
for
Aetna Casualty
and Surety
Betty
Arhaggelidis
on
the
theory
of
civil
the
Tirinkians
and
the
Markarians
(the
five
Organizations
of the
Act ("RICO"),
under 18 U.S.C.
Racketeer Influenced
and costs,
and Corrupt
expenses, disbursements
prejudgment
Markarian,
of the Arsenal
and
Jack
Markarian)
for
separate
and
ch. 93A
Arsenal Auto
Repairs,
Inc.
("Arsenal Auto"),
1989 to
I.
I.
We
jury might
BACKGROUND
BACKGROUND
most favorable to
Santiago, 872 F.2d
we view
the verdicts.
a summary of
facts as the
the evidence in
the light
Rivera_______
492
________
____________
operated
appealed
appellant
the body
by
defendant
the judgment
Petros Arhaggelidis,
against
him.
Betty Arhaggelidis.
He
is
was owned
who
the
has
husband
not
of
the
body
Zareh Tirinkian.
Markarian
of
shops, Arsenal
Auto
(also
an
by appellant
and Peter
Markarian
were employees
of Arsenal
Auto
Peter Markarian
were
1987 to
1989, the
Arsenal defendants,
together
____________________
1
The published version of this Opinion includes only the
background statement of facts (Part I) and discussion of those
issues that may be of
general interest (Parts II-IX and
Conclusion). The remaining portions of the Opinion (Parts X-XIV)
contain a detailed explanation of the sufficiency of the evidence
to support the jury findings and address other issues that do not
appear to have precedential importance. See First Cir. R. 36.2.
___
-5-
with
employees
insurance claims
paid
and
friends,
to Aetna
submitted
ten additional
cars.
other insurance
Aetna
fraudulent
at least
sixteen
upon which
the insured.
the cars
involved in the
Auto,
fraudulent claims
were
appraisers who covered the area where Arsenal Auto and the
for
ten of
defendants
friends)
filed
Cummings
and
the
sixteen fraudulent
(personally
over a
Dexter
or
three-year
submitted
claims
in cooperation
period
that the
with
their
commencing in
1987.
false appraisals
to
help
the
against Cummings and Dexter under RICO for $789,967.24 (being the
amount paid out
Aetna
that
the
by Aetna
jury
on 112 insurance
found
to
be
claims submitted
fraudulent)
trebled
to
to
in costs, disbursements,
-6-
each of
the
the
sixteen
Arsenal defendants
fraudulent claims
and friends
directly
cooperating with
Arsenal defendants
Arsenal
Auto or
repairs in
did not
any other
autobody shop
provide any
other cases,
The jury
At trial,
documentation that
completed any
the claims.
With
of the
respect to
was intentionally
in some
cases defective parts were placed on the cars for the purpose
of
jury found
was liable
for
for
that
each of
the individual
a substantive
participating in
the affairs
Arsenal
RICO violation
of Aetna
under
through a
individual
conspiracy
with the
shops
under
1962(d),
operators of
for RICO
other body
against Cummings
Betty Arhaggelidis
scheme through
Autobody, one
of
the
was associated
her husband,
five
autobody
the owner
shops
with the
of Rodco/P&B
involved.
Betty
-7-
Arhaggelidis owned
her
mother's
name.
These two
Mercedes
was registered in
were involved
in six
theory
centered around
a "civil conspiracy"
Autobody, and
therefore
was
on
a variety
of grounds.
In addition,
each appellant,
except
for
court's
Arsenal Auto
Repairs,
Inc.,
appeals the
district
we
consider
among the
the
RICO
issues
counts and
arising
the civil
from
the
conspiracy
II.
II.
at various points,
aspect of
oral argument
the relationships
both in
the jury.
among the
We address
because of
different theories
specific aspects
five different
theories
relevant to
this
inquiry:
claim
the
jury's
Therefore,
or
finding of
liability
on
Counts
VIII and
IX.
that on
judgment must
Count IX
stand.
is supported
by sufficient
evidence, the
the
evidence was
sufficient
for the
jury
reasonably to
find
on Count X.
with respect
deficiency
to
Count
that
VI is
we have
Moreover, because
the individual
The only
an
rejected
we have
regarding
pleading
wholly without
support.
judgment against
by jury findings
Count X, or
both.
The
is also an
finding of
liability on
Count X,
theory.
evidence
Count X.
judgment
by the
against
appellant
jury's finding
conspiracy theory.
Arhaggelidis
of liability
We conclude
on Count
that
is
X, the
the evidence
was
Count X.
From this summary, it is clear that
assertions
is
true:
the
legal
relationships
defendants,
and
claims
are
factually.
A question remains,
one of appellants'
among
complex
transactions,
both
however, as to
legally
and
how, if at all,
-10-
was too
complex for a
an argument that
briefs before
that is quoted
Brief at 59-61,
set of
We have done
so,
any argument
first, to
presented
be certain
we have
not overlooked
as
complex as
issues presented by
that before
us, with
interlocking
by RICO, a
consequences
conspiracy is
in
civil.
by a court.
of
invoking
Even with
relevant statutes
respect to the
and precedents
upon the
theories
of
provide only
limited guidance
with respect to
(1)
single
conspiracy of
many
parties,
multiple
nest
overlapping
conspiracies
of
interlocking
conspiracies
or
conspiracies
smaller,
that
discrete
may
inner
not all
result of
this
range of
possible
interpretations of
the
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 in the present case, like those charged under a nonRICO 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
of
theory,
consequences,
though
including
the
choice
those incident
may
be
to
the
is allowed some
burdened
law of
with
double
jeopardy.
In a
some choice
also, may
civil context,
of theory.
But
be burdened with
in the
be allowed
civil context
consequences -- a point
to which we
return below.
In this
relationships
case, added
among
layers of complexity
theories exist,
not
only
incident to
because of
the
relationships
(RICO
between different
conspiracy) and
Count
conspiracy
X (civil
because of the
alleging
substantive
RICO
Also, as in criminal
op.
counts --
Count IX
conspiracy) --
but also
violations (Counts
VII
at 19, an answer as to
counts
and
VIII).
91-1769, slip
theories as
choice at least
court.
alternative contentions,
this case
until late
presents may
be allowed
stages of proceedings
to defer
in the
trial
in a civil
-13-
to be
is closed,
made about
the
about instructions
either
"special
to the jury.
question"
may require
verdict to
some
be used
in
R. Civ. P. 49 -- and
least
instruction
not request
submitting
has the
associated consequence of
See,
___
procedural
rule, in
limit
the scope
e.g.,
Fed.
R.
Civ.
this instance)
of
choice by
attached
to each of the
complete
freedom of choice.
almost certainly
omitted theory of
P. 49.
The
allows choice,
defining
makes a
law
(a
but it
may
consequences that
are
party making
a choice
of this
course, a
submission to
trial
court may
jury
of
two
in some
or
more
circumstances
theories,
with
The
different
compatible
submitted
-may
theories submitted
that
be
is,
to
Also,
may
be
sustaining all
however,
the
conspiracy submitted to a
a jury
verdict
permissible.
sustaining that
incompatible that
the
jury's choice is
limited to finding
one or another
of the
to
"general
be
submission
verdict,"
examination,
R.
Civ.
P.
against each
as a
theory
Fed.
it, discloses
general verdict of
claim
"special questions,"
with
49(a).
no
Closer
colloquies about
each claim
under
on
matter
alleged in
required only
P. 49(b), as to
of claims
rejected the
(the association-in-fact
Count VII) or
Aetna elected
conspiracy
not
to request
submission of
jury to report
allegedly
a separate
an answer as to
fraudulent
claims
question requiring
necessary
the
of the 176
because
disputed
RICO
conspiracy
and
the
alleged
RICO
substantive
theory,
transactions
but
also with
was
within
substantive violation.
of
the judgment
to
The
respect
the
scope
to
of
whether
the
each of
the
conspiracy
or
be entered,
even
though the
the terms
trial
judge
determined
(supportably,
we
have
concluded)
that no
genuine
plaintiff
against
the
appellants
are
supported
by
the
SUFFICIENCY OF PROOF
SUFFICIENCY OF PROOF
Standard of Review
__________________
against them.
They argue
that the
for judgment as
a matter of law.
of
law only
reasonable inferences
the
nonmovant," it
if, after
examining
the evidence
and all
most favorable to
evidence could
lead a
reasonable
movant.
person
to only
one
conclusion,"
favorable to
the
A denial of
judgment as a
matter of law
is "reviewed de
__
novo,
____
Id. at 125.
___
independently, by
first,
the finding
that all
liable
on a theory of
each of
amount of $2,369,901.72
two
jury findings
individual Arsenal
--
defendants are
with Aetna as
-16-
the
enterprise
finding that
theory of
under
1962(c)
(Count
RICO
conspiracy
under
VIII)
and, second,
IX).
the
on a
With
the amount
of $373,857.28 is
supported by
the
substantive charge
alleging Aetna
court
of
alleging
law
an
defendants),
as the
enterprise, and
granted defendants'
motion
on Count
RICO substantive
VII
(the
association-in-fact
the
district
for
enterprise
court
should
have
judgment as
violation
including
granted,
all
also,
IX.
(This
made in the
trial court as to
VI,
a scheme
of a smaller
Thus, no plausible
scope than
that
argument can be
made
Appellants do
their
preclusion argument.
Reading
legal premises of
generously to
appellants,
preclusion is
implicitly if not
at least
explicitly suggested.
is true
that
fraudulent scheme
each of
Counts
that includes
VII, VIII,
all the
and
IX
body shops.
These three theories have the same "scope" in the sense that each
defendants in
count
the amount
asserts a
theories has
Counts
of $2,369,901.72.
distinctive
all
VII and
of the
VIII
theory,
and
elements of
allege RICO
Nevertheless, each
none
any other
of
the
of the
three
three.
substantive violations
under
-18-
1962(c),
but
different.
the
entities
alleged
Since
that
the
enterprise
are
elements
as
each
of
of proof, the
the dismissal
the
1962(d).
three
counts requires
appellants are
of one
of these
different
incorrect when
counts, namely
they say
Count VII,
we
proceed
to
consider the
fails as a matter of
possibility
of
some
other
patently incorrect
statement of law.
One
argument
is
premise
that
in
that
may
order
to
be
inferred
prove
Count
from appellants'
VIII,
the
RICO
that
alleged in
1961 defines an
associated-in-fact
1961(4).
Thus
although
to satisfy
legal
of individuals
entity."
18
U.S.C.
of a
RICO
legal entity,
individuals
were
such as
a corporation, or
__
associated-in-fact.
Since
that a
Aetna
group of
is
if there is
no proof of an
association-in-
fact enterprise.
In
contrast,
association-in-fact
Count
enterprise.
VII
requires
An
proof
of
an
association-in-fact
enterprise
is
an
"function[ing]
apart
from
"ongoing
as a
organization,"
continuing
the pattern
unit," which
of racketeering
with
members
is "separate
in which
and
it engages."
no party
has
challenged
the district
court's
judgment as a matter of
law
plaintiff
Nevertheless,
is
to
an
association-in-fact enterprise.
different from
Aetna.
prove
an enterprise
Since different
proof is
that is
required
law
consistent
in
with
favor
the
of the
court's
a legal
entity, like
to establish
these
court's determination as a
defendants
on
determination
Count
that
VII
fact
is
issues
possible
premise,
which
is
not
is that in order
explicitly
of an association-
proof
of
an
not valid.
association-in-fact
-20-
enterprise.
not
Any
1961 an
like
Aetna as
court has
of the
racketeering activity.
both
This
1962(c) and
a RICO
to prove
necessarily an
hand,
some
kind
of
enterprise
of
that
association-in-fact enterprise.
scope,
In the
not
case at
sufficient.
victim enterprise)
and of
1962(d) conspiracy
(with
Substantive
RICO
Violation
Under
1962(c)
with
__
__________________________________________________
an individual
violation
enterprise,
defendant to
under
be liable for
1962(c),
with
Aetna
a RICO
as
the
foreign
consideration associated
of
the
enterprise's
defendant's participation
activity.
28 U.S.C.
We
was through a
and
(4)
that
this
pattern of racketeering
1962(c).
consider, whether
affairs,
in the
the evidence
was
sufficient to
defendants the
Aetna is
of RICO
is to
an "enterprise
the meaning of
protect legitimate
1962(c).
affecting
The major
business enterprises
from infiltration by
act,
racketeers.
includes legitimate
corporations.
property
Aetna's
and
casualty
conduct
"Enterprise"
of
as used in
See
___
United States
_____________
2524 (1981).
insurer doing
its business
this
v.
Since Aetna is a
business
"affects
in
many
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
activities were to
-22-
In United States
_____________
v. Boylan, this
______
convictions
illegally
of Boston
police
participating
detectives who
in the
affairs
of
violated RICO
the Boston
by
Police
the
affairs
of the
enterprise
In
Boylan, as in this
______
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.
_______________
Aetna,
attempt to
Boylan
______
the defendants
constituted
the
statute
prohibits
affairs
through
detriment
are
distinguish Boylan
______
were employees
RICO enterprise.
employees
a
pattern
of the enterprise,
merely associated
from
of
by pointing
of the
out that
in
organization that
Appellants
argue that
conducting
an enterprise's
racketeering
with the
not employees of
activity
to
the
the
enterprise from
conducting the
enterprise's
affairs
to
its
detriment through
pattern
of
racketeering activity.
-23-
The
language of the
proposed
is
or associated with
__________ ____
added).
distinction
not
supported
by
the
"person[s] employed by
1962(c)(emphasis
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
held
argue that
the
defendants cannot
be
Aetna as the
enterprise
because
they
were
even
outsiders and, as
to "have participated
This is
not
an argument more of
"associates"
of
in the conduct"
the
be
of Aetna's affairs.
The statute
In ordinary usage,
the solidarity
of
that enterprise,
against
have
shop involved
Three of
in repairing
automobiles insured
claimant,
were both
or a
body
by Aetna.
shop
operator,
As
each of
an
the
appellants was in
a contractual
relationship with
"associated
Aetna
evidence
with"
because
each body
Aetna.
The
operators were
shop
about
which
conducted
appraisals and
where cars
that were
the subject
of
Appellants
argue
that no
reasonable
defendants
management
did
not
"participate
in
the
operation
Reves v.
_____
or
evidence
to
the
for a
activities
met
adopted by the
Supreme Court
"operation
management"
allegedly
paying
or
damaged vehicles
automobile insurance
business.
appellants'
reasonable
assertion,
jury
the definition
in Reves,
_____
test.
and
Id.
___
to find
of
there
was
that
the
"participation"
which is
known as
at 1172.
Appraising
investigating, processing,
claims are
vital parts
the
and
of Aetna's
Supreme
"conduct of the
direction,"
directing
Court
in
enterprise's affairs" to
described as
activities
affected,
part in
material
degree,
the
Appellants'
to do so
to
as in this
of
individual Arsenal
The Court
phrase
The evidence
employees of Aetna.
made.
taking "some
Id. at 1170.
___
in
the
indicate a "degree
not have
Reves interpreted
_____
Id.
___
The evidence
conduct
was sufficient
enterprise
'associated with'
also might
be
operated
or managed
that
by
others
it as,
Id. at 1173.
___
the plaintiff,
in support of
the verdict
in
to approve false
their
was sufficient
exerted
control over
example
given by
to
the
support a
enterprise, if
the Court
methods of inducement.
some
appellants'
aspect
actions
not
in Reves), then
_____
appellants
by bribery
at least
finding that
could
the
be
enterprise's
found
to
have
The
(the
by other
find that
part in
affairs,
the
satisfied
the
under
1962(c) is
was
"through a pattern of
establish a
show
that
activity
racketeering activity."
committed
defined by 18 U.S.C.
two
ten years.
In order to
acts of
racketeering
these
terms refer
which the
beyond-reasonable-doubt
plaintiff
in a
civil
RICO action
to
criminal
burden of
may
proof
offenses to
applies,
prove these
-27-
v. Miller
______
acts
by a
and the
use
of the
mails to
execute or
further this
scheme.
United States v. Brien, 617 F.2d 299,
_____________
_____
(1st Cir.), cert. denied, 446
U.S.
_____________
(1980).
The
plaintiff alleged
that
each defendant
311
919
committed predicate
intentional filing
of false
insurance
claims or
mails but
only that the defendant acted "with knowledge that the use of the
mails will follow in
in
circumstances] where
such use
can be
or [acted
reasonably foreseen."
In
this case,
it
insured, a claimant,
a body shop or
an appraiser would
use the
or that
-28-
these
the mails
uses of
to send payments
the
mails
were in
to the
recipients.
furtherance
of
the
must be evidence
predicate
activity.
acts
Boylan,
______
established by
period of
proof of at
of "continuity" sufficient
constitute
898
proving that
F.2d
a
at
"pattern"
250.
of
acts,
to show that
racketeering
Continuity
Id.;
___
may
be
"form a
closed
way of
evidence
of the
ongoing
succession
of fraudulent
claims
not dispute
constitute
Similarly,
do
predicate
the appellants
offense
do
necessary to
each
fraudulent
not contend
that
the
RICO
that the
statute.
fraudulent
or so dissimilar as to
establish a
"pattern" of
lack the
racketeering
-29-
activity.
evidence
The
appellants
simply
contend
that there
was
no
We have
D.
__
In
addition
to
finding
the
individual
Arsenal
enterprise,
the jury
Arsenal defendants
1962(d).
also
found
of the
individual
by showing
the enterprise,
pattern of racketeering
activity by
did so through a
agreeing to
commit, or
in
F.2d at 241.
Even
here) to
the
though no
party
objected (on
grounds
relevant
alleged
RICO conspiracy
(as well
as
the elements
of the
elements
In arriving at
this
circuit used
the
-30-
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).
In Boylan,
______
the court
first
used this
same phrase
("knowingly
following shortly
thereafter referred to
whether the
Boylan
______
(and
perhaps
the
earlier
cases
as
well),
this
was so in Boylan
______
indisputably
alleged
employees
enterprise.
of
In the
the
Boston
Police
present case,
Department, the
on the
other hand,
For this reason we have addressed the issue more precisely in our
of a RICO conspiracy,
conclude that
the issue
we must
consider is
not
whether
the
defendants
conclude that
knowingly
the evidence
joined
is sufficient
in that Opinion)
conspiracy.
to support a
We
finding
-31-
1962(d)
RICO
conspiracy.
The alleged
conspiracy
to violate
violation of
of
IX) was a
1962(d) based on
1962(c).
defendant violated
prove two
1962(d),
in contrast, this
To prove a violation of
that two
Boylan, 898
______
F.2d
difference
is of
predicate offenses be
at 252.
In the
no practical
committed.
present case,
this
consequence because
one
See
___
latter
we conclude
assertion,
is that, in order
conspiracy
required to prove
the
perhaps
Arsenal
(a
implicit in
to prove each
1962(d)
violation),
the
appellants'
plaintiff
was
defendants
conspired
directly with
one
or
more
assertion
is
incorrect
of
because
it
depends
a RICO conspiracy.
It is true
-32-
violate a subsection of
1962.
It is
details
or
the full
extent
of the
conspiracy,
including the
a particular defendant, is to
prove that he
the
conspiracy.
Moreover,
conspiratorial agreement to
can
plausibly
interdependence
States v.
______
case,
each
is
not
necessary
for
the
be
inferred
of
activities
from
words,
and persons
defendant
it
actions,
and
the
involved.
United
______
In this
defendant
knew that
fraudulent scheme.
he
or she
was
a part
of
a larger
evidence supported a
finding that each of the Arsenal defendants was well aware of the
fraudulent business
practices of
the jury
could find that all of the Arsenal defendants knew they were part
of a larger conspiracy
to their own
both.
of fraudulent
appraisals by
uses similar
Dexter, Cummings,
or
-33-
defendant
conspiratorial
sweep"
who
is
does
not
nevertheless
know
jointly
Using a
providing the
the body
individual defendants.
"entire
severally
in furtherance of the
that Cummings
extended
and
the
which all
and most,
if not
all of
the
Inc. and
Betty
Arhaggelidis.
We
need not
consider
nor to the
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
Through
evidence
of
each
individual
Arsenal
defendant's actions, the jury could infer that each defendant had
the
for a RICO
conspiracy violation --
knowing participation.
See
Boylan, 898
F.2d at
242 ("[The
___
______
plaintiff] may prove [a RICO conspiracy]
through the use of circumstantial evidence,
so long as the total evidence, including
-34-
reasonable
inferences, is
sufficient
warrant [the jury's findings].").
The appellants do not
conspired
all the
conspiracy.
agreed
Through Dexter
to
to
to
other
defendants who
commission
were
two
predicate
for
RICO
committed or
offenses,
each
although
it
was
not
necessary
for
the
of defendants from
directly
with them, the evidence was sufficient for the jury to infer that
this
was in
fact
testified that
the
case.
he frequently
For
example,
Zareh
other social
discussing his
that
the
body
unusually similar.
The
reported nearly
obtained
practice
shops'
body shops
identical types
of filing
all
sufficient to
considered
were
defrauded Aetna,
they
of fraudulent claims,
along
with
evidence
activities
similarities,
Although
fraudulent
racketeering
Tirinkian
other
and they
Evidence of these
evidence,
was
degree
of
E.
__
Defendant
liable
Arsenal
Auto
for
the jury's
finding
insufficiency of
discussion
of
Inc.
was not
held
civil conspiracy.
challenge this
Repairs,
The
appellants' brief
against Arsenal
the evidence.
Auto
concerns
was
does not
on the
civil conspiracy
Auto
basis
of
the following
Arhaggelidis's appeal
only.
Appellant Arhaggelidis challenges the
against
of
the evidence.
conspired
with
The plaintiff
her
fellow
judgment entered
Rodco/P&B
Autobody
Ms. Arhaggelidis
defendants
to
defraud Aetna.
The
nature
of
"civil conspiracy"
required to invoke
those
criminal conspiracies
applying to
conspiracies in
particular.
and
the
proof
Under Massachusetts
to RICO
law, either of
of action in
coercive type.
Mass. 1985).
conspiracy,
See
___
Massachusetts" for
"civil conspiracy"
Jurgens v. Abrams, F.
_______
______
allege
-36-
a "very limited
of a
(D.
that defendants,
acting
in
unison, had
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,
complaint,
does allege
constitute such a
is
that
in
paragraph
a
480
of
Count
circumstance that,
were
collectively
of
if proved,
"defendants
able
its
might
The allegation
to
negate
the
accomplishing a
fraud of this
type."
(App.
609).
Despite the
state a
fact that
sufficient to
This
conspiracy is more
It is
elsewhere and in
Massachusetts, the
(1977).
That
is,
the concept
is invoked
to
support liability
of one
on
a common
this basis,
there
must be,
first,
or an
design
of some tortious
See
___
b.
Where
act in concert,
876 cmt.
Supreme
Massachusetts
common
876 (1977).
Judicial
law
of
Court
civil
has
implied
conspiracy
that
the
encompasses
liability are
N.E.
428, and
declining to
"pause to
determine whether the principles of 876 and
the law of the Commonwealth are, in all
respects, in complete accord" because the
parties accepted this section as governing
the principles of civil conspiracy in the
Commonwealth);
see also Gurney, 84 N.E. at 430 (alluding
___ ____ ______
to concert of action theory
similar to
876(a));
Payton v. Abbott Labs, 512 F. Supp. 1031,
______
____________
1035 (D. Mass. 1981)("The concert of action
theory in Massachusetts tracks 876(a) of the
Restatement.").
The district court, in
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
Restatement
instruction
876,
is
not
the appellant
precisely
has
not
in
accord
presented any
the instruction.
In any
with
issue
event, she
did, however,
by her
motion for
conclude, nevertheless,
state of Massachusetts
challenge
judgment as
that we
the
sufficiency of
a matter
of law.
the
We
the precise
in tort, because
under
any plausible
reasonably could
with
her
formulation
find that
husband and
of Massachusetts
law, a
fellow
Rodco/P&B
jury
in concert
Autobody defendant
to
defraud Aetna.
-39-
The
Rodco/P&B
jury,
with
Autobody was
support
in
associated with
evidence,
found
that
thirty-seven fraudulent
Betty Arhaggelidis
also that
Ms.
All
of Rodco/P&B Autobody,
with which she
in
represented
concert" with
pursuant to a
was connected
appraisals by Mr.
of the
evidence
defendant.
many
Arhaggelidis "acted
six claims
claimed damage
six
cars personally.
to
Aetna that
Evidence
the repairs
common
involved
Autobody.
All
Cummings, a co-
allegedly repaired
was received
had
her
been made.
that she
Also,
Mr. Arhaggelidis:
found
to be
totalling
he
fraudulent, and
he made
payments to
Mr. Cummings
bribes.
could infer an
jury,
Arsenal
Arsenal defendants
instead
of
the thirty-three
claims
was heard.
sixteen claims
submitted to
involving
the
The appellants
-40-
correctly assert
were made to Aetna; the other seventeen claims were made to other
insurance
companies
(except
for
Tareh
Tirinkian's
worker's
compensation claim).
Aetna
insurance claims
recovered
damages
paid by Aetna
for
the
-- claims the
sixteen automobile
jury found
to be
fraudulent.
The trial
seventeen claims
court
admitted evidence
For
accident
the claims to
was allegedly
district
was
in
this
other insurance
In one
sustained in
one
alleged accident.
corresponding to
to the determination
or more
court
the other
example, many of
companies duplicated
of
correct
in
admitting
the
evidence
at trial,
their briefs
in
this court
have not
appellants argue
that
the verdict
form
should not have asked the jury to determine whether each of these
seventeen
ultimate issues of
to be decided
to
determine
proved.
an
whether
each element
of
some claim
were in
these
fact prejudiced
defense was
they
or
in any way
submission of
to the jury,
we have no
court
arguments
did consider
that
they
and
were
reject
prejudiced
evidence
evidence
because
it tended
issue
by
admissibility
of
jury's
hearing
finding of
a common
regarding
the
defendants'
to support
the Arsenal
The
the
is
properly
It is true that
note, however,
appellee
that an
argument can
it on appeal
be made,
although the
do so in
to
two
submitted to Aetna
and
one
was
submitted
to
another
insurance
company,
would
-42-
of our
review of
the evidence
1962(c) by
sixteen Aetna
to the
to
of mail
fraud.
V.
V.
L. ch.
or deceptive
93A
2.
Tirinkian,
Jack
the statute.
Markarian,
Mass
and
Peter Markarian's
constituted a willful
violation of
this statute.
Appellants contend that their
purely
personal and
that
they did
not
violate this
statute,
correct
in asserting
that the
phrase
individuals acting
in a
business context.
See
___
Lantner v.
_______
these
three
defendants were
acting
in
jury to
business
-43-
in
Zareh
Markarian performed
members
and
Tirinkian
repair
friends of
was an
work.
these
and Jack
and
found that
defendants submitted
Most of these cars
Peter
family
fraudulent
were appraised
by
performed at Arsenal
submitted
"Arsenal
Auto.
of the repair
Many of the
work completion
to these claims
that Arsenal
forms
Auto completed
conclude that
the
evidence was
ample to
support
defendants used
From
dealings
addition
JURY INSTRUCTIONS
JURY INSTRUCTIONS
to
arguing
-44-
that
the
evidence
was
insufficient to
U.S.C.
of the individual
1962(c) and
1962(d), the
court
in
instructed
the
conduct
the
of an
jury
that
enterprise'
"[t]he
term
includes
the
the enterprise."
The appellants
argue that
this
failed
making
this ground at
trial.
appellants contend
Fed.
that they
R. Civ. P.
Rule 51.
objected to this
Although the
instruction, the
most that can be said is that they objected to the "RICO -- Aetna
as the enterprise" charge on
the enterprise
as a matter of
law.
not be
The record
("You've
judgment as a
matter of
argument in support of
law.
Of course you
object to the
saved
as to
interpreted as
an
In
any case,
objection
to
the
even if
instruction,
it
to be
is
not
-45-
sufficient
"state
to preserve an issue
distinctly the
matter objected
to and
it does not
the grounds
for
objection."
Fed. R. Civ. P. Rule 51;
see also Jordan v. United States Lines,
___ ____ ______
_____________________
Inc., 738 F.2d 48 (1st Cir. 1984)(holding
____
that appellant's objection to
the trial
court's instruction on the definition of
"unseaworthiness" was not specific enough to
satisfy Rule 51).
Moreover,
reasonably understood as
"enterprise"
conduct
and not
an objection only to
to the definition
of the affairs."
the definition of
of "participate
in the
objected to the
the Reves
_____
test or offer
any alternative
to the instruction
given by
the
judge.
Although this
broader
interpretation,
jury instruction
it
is
also reasonably
in order to
"participate
itself."
in the
Reves,
_____
is arguably open
understood
to a
to
be liable
under RICO, a
defendant must
operation or
management of
the enterprise
113
S.Ct.
at
1173.
"Because
of
the
"The plain
Poulin v. Greer, 18
______
_____
to prevent
a clear
miscarriage of
justice." Id.
___
-46-
(quotations
omitted).
The
alleged error
in this
instruction
VII.
A.
__
damages in
violation of the
right to a
of the
determined
entered
bifurcation of
jury
court properly
of material
fact remained
the sense
legal
that reasonable
standard could
amount
of damages
factfinders applying
come to
to be
but one
awarded under
the correct
determination as
the jury's
to the
findings on
liability.
Precedents
guidance
regarding
summary judgment
provide useful
by
the parties,
summary
judgment
is warranted
Anderson v.
________
when
no
U.S.
242
(1986)(summary
judgment
is
appropriate when there are no disputed issues
of material fact);
see also Plaisance v. Phelps, 845 F.2d 107
___ ____ _________
______
(5th Cir. 1988)(plaintiff did not have an
absolute right to a jury trial where there
was no genuine issue of material fact, since
the function of a jury is to try disputed
material facts);
Bloomgarden v. Coyer, 479 F.2d 201, 206
______________________
(D.C.
Cir.
1973)("The summary
judgment
procedure is properly and wholesomely invoked
when it eliminates a useless trial. . . .").
In addition, under Federal
the
"including
Fed.
the
R. Civ.
to formulate and
elimination of
P. 16.
Rule
frivolous
16 also
or defenses."
authorizes courts
to take
confirm
the power
issues" without
Id.
___
of the
awaiting a
court
to "identify
[] litigable
summary judgment.
to be
awarded
was made
liability.
At the conference
after
the jury
on damages held
trial
on
court stated
trial
if
its intention to
no genuine
enter a judgment
dispute of
determination remained.
stated, "[u]nder Rule
fact
without another
material to
the damages
has held
that a district
court may
grant
-48-
summary
Stella
______
4 F.3d
53, 55
(1st
Cir. 1993).
make an
issue
material
Second,
of
accurate determination
fact
[exists]."
of its evidence."
losing party
foot forward."
Id.
___
Id.
___
of whether a
(citation
omitted).
. . . received
genuine
a fair opportunity to
It was complete.
before
an opportunity
entering
to be heard.
judgment,
allowed
And
The appellants
The
the
district
parties
an
that were
their post-trial
memorandum,
argument as they
the appellants
made
court
The
necessary
to determine
how much
of each
claim was
-49-
legitimate,
that reported
losses were
merely exaggerated,
and
appellant.
fraudulent claims,
regardless of
been shown
any portion of
to be supportable
the claims
if no
fraudulent
in the Aetna
here
were
precedent has
that
made
policies at issue
under
coverages.
The
collision coverage.
explicitly determined
claims at issue
No
Massachusetts
in policy
circumstances, any
Judicial Court
prediction about
in
order
to
whether the
decide
this
case.
In
Supreme
to collision
prediction on
We
assume
in
-50-
coverage.
The "cooperation
provision concerning
after
an accident
clause," of
course, is not
the only
insureds and
claimants
the obligations of
or
loss.
Other
provisions concern
giving
that
one or
a fraudulent
provisions of the
reason
contend
claim is
policy under
another
of
claim is
various
a violation
which the
of
any of
the
made.
One
on
of
the
jury,
calculation
every
claim
the
damages
of
fraudulent claim.
defendants
included
award
has
appellant
the
been
trial
found
court's
to
be
in
Arhaggelidis was
liable
was within
the
claimant,
in
making
fraudulent
claim,
was
policyholder.
This is
of any claim under the policy by any other person entitled by the
terms of the policy to make a claim under the policy.
-51-
breach
as
fundamental as
this
is
bar to
the party
the
See
___
It applies
doctrines
that
one
or
another
developed distinctively
in
of
various
insurance law
case.
This contention
jury findings in
the
detrimental
characteristic of
choice of an
is characteristic of waiver in
reliance
estoppel in
option that
unequal
bargainer
precedents
claimant
overreaching of a
is
have stretched
election beyond
is characteristic of
classic
that
by
their classic
is
the voluntary
the
of waiver,
meaning to favor
that
election in
characteristic of
doctrines
the classic
cases
in
estoppel,
which
and
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
-52-
cited
any
precedent,
in
doctrine
beyond
establishing
rights in
favor
of
insurance claimants
These terms
as
well
as
coverage.
its clauses
Indeed,
in
substantive violation
need or occasion
granting
view of
the
with Aetna
defining
jury
finding
as victim, if
to invoke principles of
the scope
of a
there were
more congenial
to preclusion
RICO
any
of
against a
would
fraudulent claimant
of any
effect of
of
have not
Massachusetts precedent
cited and
directly
we
recovery
to which
on analogous
case.
determining the
the
insurer
is entitled,
issues support
For example,
Massachusetts
the judgment
Massachusetts courts
entered in
have held
are not
decisions
this
the parties
obtaining a policy or in
in a
fraud
_______
_______________________________
99 N.E.2d 640 (Mass. 1951)(holding that an
-53-
Glaz
____
297
appellants do
paid out
on the
the jury
the
policies were
that the
ever in
amounts that
dispute.
These
court's judgment.
to
not contend
existence
Although
and
material to the
extent
of
any
actual
dispute as
losses
by
the
defendants, any dispute about these facts was not material to the
completely fabricating
a jury trial.
certain to
The
court's determinations
be awarded against
the defendants
were
submission to a jury.
VIII.
VIII.
As
a part of the
ATTORNEYS' FEES
ATTORNEYS' FEES
judgment in this
-54-
court awarded
attorneys'
judgment,
fees
each
to
the plaintiff.
individual
Arsenal
disbursements, and
Under
the
defendant
terms of
the
jointly
and
is
of it
court
attorneys' fees
that the
Arsenal
improperly held
expended in
them
appellants argue
liable for
not
also the
that
the
only the
attorneys'
fees
expended in
Surety Co. v.
__________
case").
In the
Inc. and
related case
entitled
its operators
were a part
of the
"Sport
_____
Auto Body,
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.
appellants
argument
fails
because
18
U.S.C.
the
judgment
Sport case
_____
was
entered
individual Arsenal
was
consolidated
against
the
with this
Sport
_____
18 U.S.C.
1964(c).
action
defendants
and
and
the
the
entire
suit.
Arsenal
appellants
argue,
but
consolidation
rejected
damages
PREJUDGMENT INTEREST
PREJUDGMENT INTEREST
RICO claims.
are punitive
in
on the treble
nature
and not
compensatory,
in his opening
the
Arsenal
defendants.
The
first
on behalf of
statement
of
this
behalf
him
by
new
circumstances,
counsel
representing
alone.
In
these
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.").
brief for
the scope of
issues appealed."
-56-
reply
brief,
opportunity to
F.2d
the
When an argument is
appellee
respond.
See
___
deprived
of
the
parties.
Id.
__
This
benefit
court
of
has
is
not
Sandstrom v.
_________
given
first raised
an
adequate
Chemlawn Corp.,
______________
904
recognized
submissions by
that
all
the
if
exceptional
even though
___
_____________
_________
F.2d 1010, 1013 (1st Cir. 1990)).
Such
exceptional circumstances
compelling
as virtually
arguments
that
must be
include arguments
to insure
ruled upon
that are
the appellant's
to
avoid a
"so
success" or
miscarriage of
justice.
Johnston v. Holiday Inns, Inc.,
________
___________________
890, 894 (1st Cir. 1992).
The argument presented
not
one
that
decision to
satisfies
595 F.2d
this standard.
district
court's
RICO is ordinarily
is
interest.");
Louisiana Power and Light Co. v. United Gas
_____________________________
__________
Pipe Line Co., 642 F. Supp. 781 (E.D. La.
______________
1986)(same).
We
recognize
appellant's
discretion
reasons
that
argument
in
that
that
awarding
treble
there
the
some
district
prejudment
damages
is
force
court
interest.
under
RICO
in
the
abused
its
The
constitute
appellant
punitive
reasonably
primarily
be argued,
however,
compensatory in nature,
that RICO
damages
are
that
miscarriage of justice.
SEVERANCE
SEVERANCE
of
their
motion for
plaintiff's evidence.
not
same
the
close
court's
of the
court should
defendants in the
In
A mistrial need
of prejudice.
Cir.
1978).
discretion."
clear showing
We
review
the
mistrial
United States v.
_____________
ruling
for
"abuse
of
Cir. 1991).
The defendants'
separate
First.
_____
The
trial of
the claims
Arsenal
defendants never
against them.
moved
Before
for
the trial
were to be
of materially
changed circumstances
Arsenal defendants'
failure to
be offered.
Absent a showing
began, the
before trial
evidence and
circumstances,
is required
to object
Absent special
to an
allegedly
erroneous
or
prejudicial
procedure
while
the
court
has
an
to support
a determination
that the
district court's
denial of a mistrial
was an abuse of
discretion.
No
appellant
has shown any prejudice from having all the claims at issue tried
together.
conclude
No basis
that
defendants
the jury
and
defendant.
appears in
was unable
to distinguish
Moreover,
the
the
the district
record for
this court
to differentiate
evidence
court's
thus giving
each
instructions
among the
relating to
jury
to
defendant
any potential
prejudice.
See United States v. Chamorro, 687 F.2d 1,
___ _____________
________
6 (1st Cir.), cert. denied, 459 U.S. 1043
_____________
(1982)(cautionary jury instructions dispelled
any significant risk of unfair prejudice).
In
fact, the
jury
found some
defendants
liable on
specified
reinforcing
the inference
that
the
jury understood
its
-60-
defendant's evidence as
a delayed
motion for
severance
district
938
_____________
_______
(1st Cir.), cert.
denied,
______________
(1994).
Again,
the
jury's
115
verdict
S.Ct.
shows
80
that
the
jury
reject the
appellants'
suggestion that
the
trial.
The district
court
denied the
defendants'
as a matter
of law
on Count
IX (the RICO
for judgment
conspiracy) and
-61-
Aetna
as
defendants
the enterprise),
liable
defendants would
on
have
and
these
the jury
theories.
required
Aetna
ultimately
found the
Severing
the
Arsenal
to present
all
of
the
trials.
multiple counts
that
separate
the district
trial.
to
provide her
with a
court failed
been completed.
for a
Having never
moved
herself alone,
or
no position
defendant
logical
separate
conclusion,
hear the
trial.
Taking
each
defendant
that
to fourteen
Arsenal
her argument
the sole
should
to
have
had
its
one for
court
each
PRETRIAL ATTACHMENTS
PRETRIAL ATTACHMENTS
defendants
argue
that
the
pretrial
process.
the
rejected
Their
challenge
of
pretrial
attachments
was
The challenge
decision in
holding that
process,
was
The
the
appellants' reliance
Connecticut
___________
Connecticut attachment
is not well-founded.
based on
procedure
and
comported
with
v. Doehr,
_____
due process
statute
Rules of Civil
implementation
and
by
was
the
the
501 U.S.
Supreme
1 (1991),
violated
the Massachusetts
its
upon
due
in this case
Procedure; that
magistrate
judge
entirely consistent
with
Doehr.
_____
See Digital Equipment Corp.
v. Currie
___ _________________________
______
Enterprises, 142 F.R.D. 16, 26 (D. Mass.
___________
1992)(upholding
Massachusetts
attachment
statute against due process challenge under
Doehr).
_____
Although
made
the
the attachments
were issued
requisite showing
of an
ex parte,
exigent
the plaintiffs
circumstance --
would
parte
lengthy
proceeding, the
magistrate
judge
later conducted
Ex Parte
hearing,
the
attachments
(Magistrate's
magistrate
should
judge
not
be
As a
determined
dissolved.
result of this
that
the
Id.
___
pretrial
Judge
Young
-63-
the
extensive
hearing
held
by
the
magistrate
judge."
affirmance of
the final
have no basis
reinforced upon
on this appeal
defendants in
an
In
no
now be vacated.
that the
Determining
what
process
is
due
in
pre-judgment
property.
attachment
proceedings
an erroneous deprivation
_________
be
events
any such
have
risk.
demonstrated
Aetna
that
has prevailed
no
and subsequent
unwarranted deprivation
of
property occurred.
XII.
XII.
The
appellants challenge
the verdict
entered against
district
court erred
the enterprise.
by not
granting their
Rule 12(b)(6)
for failure
-64-
typographical
error.
Appellants argue
that
they
were
of the individual
paragraph 38"
Paragraph 38 names
appellants.
policyholder/claimants named
Vachig Petrosyans,
Appellants
in
of Arsenal's affairs.
but none
of the
Arsenal
by this
appellants'
argument,
again.
which
trial
Paragraph 459 of
the
court
the amended
Arsenal's affairs
Count
VI
does
not
expressly
name
Tarja
is
Therefore,
both
Pretrial
submitted four
unreasonable
Statement of
months
and
Claims
before trial,
unpersuasive.
and
states
they were
Moreover,
Damages, which
that Count
VI
was
is
never had
any basis for asserting that they were prejudiced at trial by any
-65-
them on Count
that the
Arsenal
defendants
not
part
of
such
conspiracy.
Only
this
issue.
one sentence
of the appellants'
brief addresses
its
proposition.
This court
that is presented in
that an argument
fashion" is
we note in any
In
instructed the
jury again on
the various
RICO
-66-
appellants'
illustrate some
our examination
of the
have mischaracterized or
are attempting to
record reveals
that the
the
record, it
diagram representing
been submitted
not
that the
court
to the jury.
include this
appears
Although
drew a
that had
the court's
oral instructions.
One of the theories
not at
issue in this
other than
two or more
group" enterprise.
of the body
shops,
that the defendants associated with the body shops that allegedly
constituted
defendants.
the
"Allston group"
The court's
did
not
include the
Arsenal
of
the "Allston
group"
description
the
the
discern no basis to
the
in the
In these circumstances, we
jury's question
instructions
Nothing
was inconsistent
with the
response to
court's earlier
the
theories to be
submitted to the
ultimately rendered.
jury, or with
SUFFICIENCY OF EVIDENCE
the verdict
not prevail on
XIV.
A.
__
SUFFICIENCY OF EVIDENCE
Having addressed
Arsenal
appellants'
arguments
turn
here to
Arsenal
III.D,
with
In
to
the
the evidence
defendants.
respect
against
addition to
RICO offenses,
each of
the
elements
the individual
explanation in
of RICO conspiracy,
Part
we note here
that there was sufficient evidence against each defendant for the
jury to find
also
conclude
fraudulent
that the
claims
was
requirement necessary
Although
the
connected with
predicate
acts
racketeering.
each
of an
sufficient
to establish
jury found
that
to
a
are
to
the
continuity
racketeering.
claims
that were
constitute
only to conclude,
that there
We
succession of
pattern of
sixteen Aetna
necessary
Thus, we need
ongoing
meet
Arsenal defendant,
support
evidence
RICO.
pattern
of
with respect to
was sufficient
evidence to
Zareh Tirinkian
_______________
Mr. Tirinkian
was a key
-68-
figure of the
Arsenal
branch of
the RICO
conspiracy.
As
owner and
operator of
the
scheme.
Automobiles
were
to perform
repair
claimant, or a person
policies, Mr.
and allegedly
appraised
agreeing, on behalf of
work.
As
either
an insured,
Arsenal
or
under Aetna
claims that
1988, Mr.
Tirinkian
submitted a
When
called for
a second
At
was
car needed
to
$6,780.92 in repairs.
Aetna,
claim to
that in
for
$300.
From
this
evidence, the
jury
could
1989, Mr.
Tirinkian reported
that his
1976 Rolls
the collision.
presented
testimony of
said that
payment of $20,000
an expert
trial
supporting
the
witness in accident
BFI operated no
from
other
suggestion,
the
reconstruction, who
in any shape
or
-69-
form
testified
also
that
the damage
the
must
have
been
The expert
caused by
at different
jury could
reasonably
find
that Mr.
objects, at
From
this
Tirinkian
related
acts
fraud
constituted
pattern
of
Lena Tirinkian
______________
Ms. Tirinkian
Inc.
was an officer of
for Arsenal
checks
Auto, dealt
from them.
and received
taken together with other evidence, the jury could infer that she
conspired
Like
Mr.
the
jury found
with
her husband
to be fraudulent.
and
turn, the
other
defendants.
finding that
Ms. Tirinkian
would support,
violated
1962(c) by
activity.
-70-
Royce
was damaged
by Forge
Motors Auto
The second
$3,306.95 headlight
trial, the
switch
was damaged
in
transit.
Yet,
at
that he had noticed that the headlights were not working sometime
in the fall of 1988 and suggested to Mr.
on her
1979 Rolls
Royce.
insured to sign
Ms.
The forms
stated
that "all
allegedly sustained by this vehicle, nor did she ever see the car
at
Arsenal Auto or
that
repair shop.
in her bank
She admitted
claim stated
the
owner of
completed there.
trial,
the
defrauded
jury
Aetna
that shop
From this
reasonably
by submitting
testified
and other
could
these
automobile.
-71-
that no
Although
Car Center,
repairs were
evidence introduced
find
that
two false
Ms.
at
Tirinkian
claims
on her
1962(c)
and (d).
Thus,
Ms. Tirinkian
properly
Jack Markarian
______________
Markarian, brother
Lena
Tirinkian,
trial
that
he
performed
employees performing
paperwork.
fraudulent
repairs
and
Given evidence
at Arsenal Auto
jury
of
an
He testified
managed
the
other
claims were
was
repair work
repaired, the
brief filed
on his behalf
by new
counsel
district court
the motion
improperly denied
other defendants
His
establish that
in that he
for judgment
as a
an insured
nor a
jury found to be
committed or
agreed
to commit
the
two
predicate
either
acts necessary
1962(c)
for a
or (d).
jury to
After
find him
liable under
close scrutiny,
however, this
It was not
Markarian
necessary for
committed mail
fraud
the jury to
as a
find that
principal.
violation
of
1341, the
we have to decide
is whether there
for
itself.
fraud is a
Therefore,
RICO,
also constitutes
all
Under
Jack
of mail
fraud.
From
Jack
Markarian's formal
position
and extensive
and relatives
inference is
in
submitting fraudulent
supported as well by
introduced at trial.
abetted his
claims.
This
One example
was at
is that
that he
Arsenal Auto when the 1976 Rolls Royce was towed in after
the arrival
neither
later.
the car
of the
who this
time was
knew about and helped to conceal from the appraiser what had been
done.
Another
example
concerns
check
written
by
Jack
-73-
Markarian.
At
that Mr.
been explained as a
Keshishian
Similarly, a
received a
payment
on the same
from Aetna
on
fraudulent claim
repaired
at
he had
Arsenal
submitted on an
Auto.
The
automobile purportedly
jury,
not
believing
this
to
Tirinkian
was
a kickback.
Similarly,
the
jury
his own
$9,000 payment
and infer
that Jack
Markarian was
many
corroborated that
respects,
of his
Jack
Markarian's
testimony
For
repair
Jack
that
work.
Arsenal did
documents
by
not
Markarian
also testified
make available
any
autobody shop
the reason
records
or
flooding in the
autobody shop.
The jury
his brother-in-law's
story,
to have discredited,
that he was
Jack Markarian
work that
was never
testified that he
and his
damaged.
performed.
including
aided
The jury
and
cars
evidence to show,
were
The jury
repairs.
of the
testified to the
at Arsenal
abetted
and
Jack Markarian
He also
an accident occurs.
At trial,
Dexter,
and
position
discussed
estimates
for
friends
and
relatives
in
submitting
appellant Jack
Markarian's assertions
to the
contrary, the record contains ample evidence for the jury to find
that he
aided and
abetted others
thereby
committing two
or
in filing
more predicate
Aetna, the
participated in
in violation of
4.
acts constituting
could find
and
fraudulent claims,
the affairs
violation of
of
1962(c)
1962(d), through a
__
_________________________
-75-
an employee
conspiracy
he
of
Arsenal
brother of Lena
Auto
during
the
also testified
that when
he was
Tirinkian,
course
of
the
He testified that
he was a teenager.
at Arsenal
Auto he
He
would see
she
Tarja
Markarian
co-owner of their
sometimes
worked
at
is
the
1970 Mercedes.
Arsenal
Auto
wife
of
Peter
Tarja admitted
Repairs,
Inc.,
shows that
six claims on
his wife
of
1986 to
alleged
first
that their
claim
car
the
Markarians
was damaged
while
reported
to
Aetna
parked at
movie
theater.
months later,
Aetna
the Markarians
alleging that
parked at
their
the Burlington
Markarian's
sister, Ms.
submitted a
Mercedes had
Mall.
second claim
to
been vandalized
while
Peter
Garabedian,
had submitted
a claim
to
Aetna alleging that her Mercedes had been vandalized while parked
at the Burlington Mall.
Peter
Markarian testified
that
he repaired
the
car
-76-
after
both alleged
he purchased
parts
with
He
to provide
cash.
was
deposited
the checks
claims.
from Aetna
At trial,
made.
any
records or
repairs
these
unable
the necessary
Auto.
She
to the Markarians
relating to
any repairs
to a court-ordered
inspection, testified at
had never
been made
and that
some of
of
the
concerning the
reasonably could
affairs
infer that
of Aetna
through
claim
history,
the
of racketeering
jury
in the
activity,
1962(c).
From
the Aetna
Markarian
appraisers,
conspired with
1962(d).
the
jury
the other
could infer
defendants in
that
Peter
violation of
with respect to the Aetna claims and her work, albeit limited, at
Arsenal
husband and other Arsenal defendants and was a member of the RICO
conspiracy.
B.
__
Betty Arhaggelidis
__________________
-77-
Much
of
the
evidence
against
appellant
Betty
described in
We
add
in concert,
the
Arhaggelidis actively
false claims
law
to Aetna.
to finding
jury
reasonably
committed common
To
Ms. Arhaggelidis
could
find
that
law fraud by
submitting
Ms.
of common
defendant made a
to
induce
the
plaintiff
the
to
act,
false statement
and
that
to the
plaintiff
justifiably
relied on
plaintiff's
detriment.
(Mass. 1982).
Betty
from Aetna.
in
the
two cars
to obtain
of her
a finding,
mother,
Ms.
however, that
Paikopoulos.
the
The
Betty Arhaggelidis
evidence
was the
payments
name
supported
Arhaggelidis used
from Aetna
Paikopoulos's address.
at her
own address,
which was
not Ms.
of the
claims submitted
on
the Mercedes
380 SL
-78-
alleged
days
that Amir
parked car.
Thirty-four
car owned by
Mohammad Mohammadi.
allegedly
rear-ended by
testified that
was
his
Mr.
Three
rear-ended a
With
respect
Nima.
At
months later,
Mercedes owned
Diamondopoulos testified
happened.
Mr.
Nima
classmate.
supposedly
Rahim
at trial
to this
the
Mercedes
240D
by Mr.
Diamondopoulos.
that the
accident never
accident, Betty
Arhaggelidis
She
account.
From this
jury
could reasonably
infer
that Ms.
at trial, the
Arhaggelidis acted
in
fraud.
was properly
held
CONCLUSION
CONCLUSION
advanced
In
summary, we
on
appeal
conclude
supports
that none
reversal of
of the
any
arguments
aspect
of
the
fashioned
a jury in the
first phase.
on liability
to be
tried
In post-verdict proceedings
-79-
analogous
to a
district court
fact
hearing on
correctly determined
remained for
should be
a motion
jury
entered for
for summary
that no genuine
determination and
Aetna on
judgment, the
dispute of
that final
judgment
establishing
upon
proceedings
pretrial order
were
for phasing
well-tailored
to
and its
the
post-
distinctive
adjudication of all
the merits.
Proceeding in
this fashion,
the
parties and
the
court system,
an
and cost
objective strongly
-80-