USCA1 Opinion
December 19, 1994 UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-1463
UNITED STATES OF AMERICA,
Appellee,
v.
CHARLES MORROW,
Defendant, Appellant.
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No. 93-1477
No. 93-1635
UNITED STATES OF AMERICA,
Appellee,
v.
JACOB NEVCHERLIAN,
Defendant, Appellant.
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ERRATA SHEET
The opinion of this Court, issued on November 9, 1994 is
amended as follows:
On page 11, line 3 of last paragraph, insert "the" before
"crime" and replace "if" with "though".
On page 13, last line, delete "the" before "this".
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 93-1463
UNITED STATES OF AMERICA,
Appellee,
v.
CHARLES MORROW,
Defendant, Appellant.
____________________
No. 93-1477
No. 93-1635
UNITED STATES OF AMERICA,
Appellee,
v.
JACOB NEVCHERLIAN,
Defendant, Appellant.
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APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ernest C. Torres, U.S. District Judge]
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____________________
Before
Breyer,* Chief Judge,
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Boudin and Stahl, Circuit Judges.
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Edward J. Romano for appellant Charles Morrow.
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Robert B. Mann, by Appointment of the Court, with whom Mann &
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Mitchell was on brief for appellant Jacob Nevcherlian.
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Margaret E. Curran, Assistant United States Attorney, with whom
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Edwin J. Gale, United States Attorney, and James H. Leavey, Assistant
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United States Attorney, were on brief for the United States.
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November 9, 1994
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*Chief Judge Stephen Breyer heard oral argument in this matter, but
did not participate in the drafting or the issuance of the panel's
opinion. The remaining two panelists therefore issue this opinion
pursuant to 28 U.S.C. 46(d).
BOUDIN, Circuit Judge. This automobile fraud case poses
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a tricky issue in conspiracy law that may not have been
clearly addressed in this circuit. We conclude that some
evidence may have been admitted at trial against both
appellants that was admissible only against one of the two,
but we also find that the error was clearly harmless.
Rejecting all other claims of error, we affirm.
I.
In March 1992, a federal grand jury indicted the two
appellants--Charles Morrow and Jacob Nevcherlian--together
with Rodney Andreoni, Vito DeLuca and Randal Lane for
conspiracy to commit mail fraud. 18 U.S.C. 371.
Nevcherlian was also charged with two substantive violations
of the mail fraud statute, 18 U.S.C. 1341, and Morrow was
similarly charged with one such violation.
DeLuca, Andreoni and Lane pled guilty. Morrow and
Nevcherlian were tried together in January 1993. At trial,
the government's chief witness was FBI agent Gary Brotan, who
had pretended to participate in the scheme. His extensive
testimony was supplemented by documents and by recordings of
certain of the conversations among the indicted defendants.
The government's evidence, if believed, tended to show the
following.
In early 1991, the FBI began investigating a possible
case of automobile insurance fraud. A confidential
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informant, Mark Vermilyea, introduced Brotan to Andreoni in
March 1991. Andreoni was self-employed as an insurance
adjustor. Brotan posed as Vermilyea's cousin from Boston and
colleague in the subsequent activities. Andreoni described
to Brotan how to conduct an insurance fraud scheme involving
old but valuable "classic" cars.
Andreoni proposed that Brotan acquire from DeLuca a 1975
Corvette which had been used in prior frauds. It was
suggested that Brotan or Vermilyea insure a less expensive
car and then substitute the Corvette on the policy. The
insured then would file a claim based on an alleged accident
involving the Corvette, and shortly thereafter report the car
stolen and collect again, presumably from a different
insurer. The accident or loss had to be staged within three
days of the purported acquisition of the car so that it would
not be necessary to register the vehicle in Rhode Island or
pay the state sales tax on the acquisition.
About ten days after the initial conversation, Andreoni
introduced Brotan to DeLuca. Brotan made a $4,000 down
payment to DeLuca to purchase a 1975 Corvette for $10,000.
Although the car belonged to DeLuca, DeLuca had previously
registered the car in Florida under Nevcherlian's name and
with Nevcherlian's consent. DeLuca gave Brotan a receipt and
a copy of the title purportedly signed by Nevcherlian.
Several weeks later, in April 1991, Brotan paid the $6,000
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balance to DeLuca and received from him a bill of sale, again
purportedly signed by Nevcherlian, showing a spurious
purchase price of $21,000. In May 1991, Andreoni offered
to stage an accident in which he backed his car into the 1975
Corvette in exchange for payment of $750. In June 1991,
Andreoni notified his own insurer, Travelers Insurance
Company, that such an accident had occurred on June 7.
Shortly thereafter, Andreoni gave DeLuca a loss form sent to
Andreoni by Travelers and Andreoni asked DeLuca to send it to
Nevcherlian in case Nevcherlian, as the listed prior owner,
was questioned by the insurance company.
On July 26, 1991, DeLuca, Andreoni, Nevcherlian, Brotan
and Vermilyea met at DeLuca's home. Nevcherlian was not in
the room at the outset of the discussion. Brotan asked that
a new receipt for the down payment for the Corvette be
prepared and redated June 3, 1991, to bring it close to the
alleged June 7 accident. Brotan also asked that a new bill
of sale be dated August 1, 1991, to cover a separate claim
for the theft of the vehicle scheduled for August 2, 1991.
After this discussion, Nevcherlian joined the meeting
and was introduced as the prior owner of the car.
Thereafter, the question arose whether the Corvette's hard
top should also be reported as stolen, Vermilyea saying that
it would be strange to claim that the hard top was being used
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in August. Nevcherlian suggested that Vermilyea tell the
insurance company that the car had air conditioning to
explain the use of the hard top, and he further suggested
that it could be falsely claimed that the car had a stereo
system worth $1,000. Nevcherlian also suggested giving a
false purchase price of $25,000 on the new bill of sale to be
dated August 1, 1991.
On August 1, Travelers sent Vermilyea a check for just
under $5,000 to cover the supposed June 7 accident and, on
the same date, Vermilyea substituted the 1975 Corvette for
another car on his own insurance policy. The following day
he reported to the Narraganset police that the 1975 Corvette
had been stolen. Shortly thereafter, Nevcherlian was
contacted in Florida by telephone by a Narraganset police
detective and he told the detective that he had sold the car
a few years earlier but lacked details; in September 1991,
Nevcherlian called the police department and told a sergeant
that he had sold the 1975 Corvette to Vermilyea for $25,000.
In response to a request for the paperwork, Nevcherlian then
mailed a copy of the Florida title certificate to the
Narraganset police.
In the meantime, a second fraudulent transaction was in
preparation. On August 5, 1991, DeLuca introduced Brotan to
Morrow, who was the owner of a car dealership in Rhode Island
and apparently a business partner of DeLuca in other
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ventures. Morrow agreed to sell Brotan a 1958 Corvette for
$15,000; Brotan explained how he intended to use it in an
insurance fraud. Brotan then made a $10,000 down payment;
Morrow said he could not release the car at once because he
himself had a pending insurance claim relating to the car.
Later in August, Brotan took the 1958 Corvette to Lane's
garage in New Hampshire; Lane agreed to strip the vehicle,
have it found after Brotan reported it stolen, and then after
insurance inspection replace the original parts, all in
exchange for a fee of $2,500. In September 1991, after
discussion of the planned fraud, Brotan gave Morrow $5,000--
the balance of the $15,000 purchase price--and Morrow gave
Brotan the title certificate and an undated bill of sale
showing a fictitious purchase price of $28,500.
On October 4, 1991, Brotan reported to the Manchester,
New Hampshire, police that the 1958 Corvette had been stolen
and later that month received claim forms from Aetna
Insurance Company for Brotan's claim for the alleged theft
and stripping of the 1958 Corvette. DeLuca had earlier given
Brotan a bill of sale for another car that Brotan did not own
but proceeded to insure so that the 1958 Corvette could be
substituted on the policy prior to filing the claim on the
Corvette. Morrow subsequently advised an Aetna investigator
that he had sold the 1958 Corvette to Brotan on October 3,
1991, for $28,500.
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In his own defense, Nevcherlian denied complicity in any
plot and testified that he had registered the 1975 Corvette
in Florida as a favor to DeLuca. He admitted signing a bill
of sale dated June 3, 1991, at the meeting at DeLuca's home
on July 26, 1991, and admitted sending the title for the car
to the Narraganset police in October 1991. Morrow also
testified in his own defense and denied guilt. He
acknowledged giving Brotan an undated bill of sale for the
1958 Corvette with a purported purchase price of $28,500 even
though he had received only $15,000. Both Nevcherlian and
Morrow admitted that they knew that insurance claims are
routinely processed through the mail.
On January 21, 1993, the jury convicted Nevcherlian and
Morrow on all of the counts charged against them.
Thereafter, Morrow was sentenced to ten months' imprisonment
and a fine of $2,000. Nevcherlian was sentenced to ten
months' imprisonment, five of which were to be served in home
confinement, and was fined $250. These appeals followed.
Our discussion begins with the conspiracy count, then
addresses the substantive counts and concludes with several
miscellaneous claims of error.
II.
Count 1 of the indictment charged all of the defendants
with being parties to a continuing conspiracy to commit mail
fraud by inducing insurance companies to pay fraudulent
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claims of loss for purported automobile theft and damage.
Both Nevcherlian and Morrow argue that the evidence was so
weak as to require a directed judgment of acquittal. Morrow
also argues, in the alternative, that a new trial should have
been ordered. Both appellants also claim that the district
court erred in refusing to grant a mistrial or give a
limiting instruction because the evidence showed no single
conspiracy that embraced both appellants.
In reviewing the sufficiency of the evidence, we resolve
credibility issues and draw inferences in the government's
favor, since the issue is whether a jury could reasonably
have arrived at the verdict. United States v. Gonzalez
______________ ________
Torres, 980 F.2d 788, 790 (1st Cir. 1992). Our analysis, for
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reasons that will become clear, starts not with appellants
but with DeLuca and Andreoni. The evidence already
summarized was ample to permit the jury to find that DeLuca
and Andreoni were engaged in a conspiracy to defraud that
contemplated the use of the mails in furtherance of the
scheme. See United States v. Cassiere, 4 F.3d 1006, 1011
___ _____________ ________
(1st Cir. 1993).
Further, the jury could easily find that DeLuca and
Andreoni were engaged in a single continuing conspiracy
embracing both of the specific frauds attempted here. It is
a commonplace that a single conspiracy may embrace multiple
crimes. The similarity of the frauds, the core of common
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participants, the common location, and the overlap in timing
all make it permissible to treat the conspiracy as an
unbroken one under the criteria commonly used to distinguish
between single and multiple conspiracies. United States v.
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Cloutier, 966 F.2d 24 (1st Cir. 1992).
________
We now turn to consider the roles of Nevcherlian and
Morrow. Although Nevcherlian argues that he was not guilty
of any conspiracy, we think that the evidence permitted the
jury to find that Nevcherlian did participate in a conspiracy
to commit mail fraud with DeLuca and Andreoni. Nevcherlian
was the prior title holder of the 1975 Corvette used in the
first fraud, was familiar with the fraudulent plan as a
result of the July 26 meeting, suggested three different ways
in which the other participants could increase the fraudulent
claim, and provided a false story of the sale to the police.
By his own admission, the use of the mails to obtain
insurance payments was reasonably foreseeable.
Morrow could also reasonably be found a party to a mail
fraud conspiracy with DeLuca and Andreoni based on his role
in the 1958 Corvette transaction. The evidence showed that
he was familiar with the intended fraudulent use of the car,
that he assisted in the fraudulent arrangements by providing
phony bill of sale, and that he also knew that the mails were
used to process and collect insurance payments. This is not
by any means a case in which a defendant's involvement is
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based merely on the provision of some lawful object or
commodity later used in a criminal manner.
While the evidence was thus adequate to show that each
appellant participated in a mail fraud conspiracy with DeLuca
and Andreoni, the hard question is whether a reasonable
factfinder could conclude Nevcherlian and Morrow each
participated in the same conspiracy. Put differently, each
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of the appellants has a colorable claim that, although guilty
of conspiracy to commit mail fraud, neither participated in
the overarching conspiracy charged in the indictment but
rather each joined only in a smaller, separate conspiracy
relating to a different car--Nevcherlian being associated
with the 1975 Corvette and Morrow with the 1958 Corvette.
The law of conspiracy is fraught with difficulties but
perhaps no aspect is more confusing than "the scope to be
accorded to a combination, i.e., the singleness or
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multiplicities of the conspiratorial relationships . . . ."
American Law Institute, Model Penal Code and Commentaries 423
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(1985). One reason is that the "scope" issue is used to
decide a variety of quite different issues, ranging from
substantive responsibility for co-conspirator acts, overt act
requirements, and double jeopardy, to admissibility of
hearsay, venue, joinder and limitations issues. From a
policy standpoint, not all should necessarily be treated in
the same way.
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Further, and perhaps more fundamental as a cause of
confusion, is "the verbal ambiguity which leads courts
[sometimes] to deal with the crime of conspiracy as though it
were a group rather than an act [i.e., of agreement]."
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Developments in the Law: Criminal Conspiracy, 72 Harv. L.
_______________________________________________
Rev. 920, 934 (1959). To emphasize "agreement," the core
concept in conspiracy, Iannelli v. United States, 420 U.S.
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770, 777 (1975), implies that "scope" is to be resolved by
asking what the defendant agreed to do, or at least knew to
be likely. By contrast, if the "group" character of the
crime is emphasized, "scope" may seem more to be a function
of how the enterprise conducted itself rather than what any
one individual had in mind.
In our view, the governing principle is this: at a
minimum, a conspirator must have knowledge or foresight of
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the conspiracy's multiplicity of objectives before that
defendant is convicted of a multiple-crime conspiracy.
Conviction for such a multiple-crime conspiracy remains
possible even if the conspiracy is open-ended (e.g., a
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conspiracy to rob banks) and the specifics of the future
crimes (e.g., which banks) is undetermined or at least
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unknown to the defendant. But if a defendant agrees with
others simply to commit a single crime (e.g., to rob one
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bank) and has no knowledge or foresight of the conspiracy's
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broader scope, that defendant is a member only of the
narrower, one-crime conspiracy.
Our conclusion does not rest upon policy, for policies
can be found on either side of the issue. Rather, our view
derives in part from the core concept of agreement, for it
seems to us hard for a conspirator to "agree" to multiple
objectives if instead the conspirator believes that only one
crime is intended. Our view is buttressed by precedents that
hold or imply that knowledge is required, including language
in our own prior cases.1 Whether anything more than
knowledge may be required for agreement depends upon context
and, in any event, is not at issue here. Compare United
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States v. Townsend, 924 F.2d 1385, 1391 (7th Cir. 1991). I n
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this case the government has not attempted on appeal to point
us to evidence to show that either Nevcherlian or Morrow was
aware that the conspiracy embraced multiple frauds. No such
evidence may exist as to Nevcherlian; Morrow is arguably a
closer case but his broader knowledge is not unequivocally
established. Nor is this the type of conspiracy, such as a
drug ring, where knowledge that multiple crimes are intended
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1See, e.g., United States v. Brandon, 17 F.3d 409, 428
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(1st Cir. 1994) ("knowledge of the basic agreement"
required); United States v. Mena Robles, 4 F.3d 1026, 1033
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(1st Cir. 1993) ("common goal or overall plan"); United
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States v. Zimmerman, 832 F.2d 454, 458 (8th Cir. 1987)
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(conspirators "aware of the general nature and scope of the
conspiracy"); United States v. Evans, 970 F.2d 663, 670 (10th
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Cir. 1992) ("shared" and not just "parallel" object), cert.
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denied, 113 S. Ct. 1288 (1993).
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may be rather easily inferred based on common practice. In
sum, we think that we are not in a position to sustain the
convictions here on the ground that Nevcherlian or Morrow
engaged in a multiple-crime conspiracy.
This conclusion prolongs our discussion but does not
alter the result. The indictment charged Nevcherlian and
Morrow with conspiracy to commit mail fraud; and the jury, on
ample evidence, convicted them of this very crime. Thus
there was no constructive amendment of the indictment. Of
course, the indictment charged each defendant with a single
continuing multi-crime conspiracy, so as to Nevcherlian and
Morrow there was a variance between the facts charged and the
facts proved. But the indictment gave appellants ample
notice of the events charged, and a variance warrants
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reversal only if shown to be prejudicial. United States v.
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Sutherland, 929 F.2d 765, 773 (1st Cir. 1991).
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On appeal, the closest that either appellant comes to an
assertion of prejudice relates to the admission of hearsay.
In accordance with settled First Circuit practice, the
district judge admitted provisionally a number of co-
conspirator statements against both appellants--specifically,
recordings or Brotan's testimony of what was said at various
meetings. See United States v. Pettrozziello, 548 F.2d 20
___ _____________ _____________
(1st Cir. 1977); United States v. Ciampaglia, 628 F.2d 632
_____________ __________
(1st Cir.), cert. denied, 449 U.S. 956, 1038 (1980).
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Ultimately, after all of the evidence was admitted, the
district judge concluded (outside the presence of the jury)
that a single conspiracy existed in which both appellants
participated.
Such findings are normally reviewed only for clear
error. But here the district court's explanation for its
ruling suggests that the court believed it to be sufficient
that an overarching conspiracy existed and that each
appellant agreed to participate in a phase of its operation.
Thus, our disagreement turns on an issue of law, namely our
view that (in addition) knowledge of the multiple-crimes
objective was requisite. In all events, the government has
not pointed to evidence of such knowledge, so a contrary
finding would be clearly erroneous.
It is therefore likely true that some of the hearsay
relating to the first fraud and admitted against Morrow was
not, as to him, covered by the co-conspirator exception to
the hearsay rule; and, conversely, some of the hearsay on the
second fraud was not admissible against Nevcherlian.
Arguably, the co-conspirator hearsay exception is an
historical anomaly, there being nothing especially reliable
about such statements; but it is settled law, see Fed. R.
___
Evid. 801(d)(2)(e), and the exception clearly requires that
the defendant be (at some point) a member of the same
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conspiracy that generates the hearsay statement. Id. That
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condition has not been met here.
It remains to consider whether harm occurred. Normally,
where evidence is wrongly admitted over objection, it is for
the government to show that it was harmless. United States
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v. Welch, 15 F.3d 1202, 1214 (1st Cir. 1993). Here, however,
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we think that harmlessness is apparent from the distinctness
of the two fraudulent schemes. The admissible evidence
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against each appellant amply proved his complicity in the
narrow conspiracy relating to the car furnished by that
appellant. There is no indication that inadmissible evidence
as to the first fraud came in against Nevcherlian or, as to
the second, against Morrow.
It is true that in principle some of the evidence used
to prove the second fraud was wrongly admitted against
Nevcherlian; a limiting instruction excluding its use as to
him would have been proper. But nothing tied Nevcherlian to
that fraud, and it is a virtual certainty that the jury
convicted him because of his involvement with the first
fraud. The same is true, mutatis mutandis, of the case
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against Morrow. Nor is this an instance in which one of the
frauds was doubtful and the proof of one depended upon proof
of the other. If ever an error was harmless, this is it.
III.
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We next consider appellants' attacks on their
convictions for the substantive (i.e., non-conspiracy)
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counts. In addition to conspiracy, Nevcherlian was convicted
of two counts of mail fraud. The first count at issue (count
4) charged that Nevcherlian, as part of the fraudulent
scheme, had mailed "matter" in Rhode Island to the
Narraganset Police Department. The evidence at trial showed
that Nevcherlian mailed a copy of the title for the 1975
Corvette from Florida to the Narraganset police in Rhode
Island in response to the police request for paperwork
confirming the story he had told the police about the sale of
the Corvette.
Nevcherlian's first argument for a judgment of
acquittal, made in the district court and renewed on appeal,
is that there is a fatal variance because Nevcherlian
actually mailed the title from Florida rather than from Rhode
Island (as alleged in the indictment). Such a variance
would, as already noted, be a basis for relief only if it
caused prejudice to the defendant; and in this instance there
is no showing of prejudice. We reject the variance claim on
this ground without reaching the government's alternative
argument that the mailing could be regarded as occurring
partly in Rhode Island.
Nevcherlian's second argument for an acquittal on this
count, again properly preserved, is that the mailing of the
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title document cannot be treated as part of a scheme to
defraud since the document was sent in response to a police
request. We see no reason why a jury could not reasonably
conclude as a factual matter that the mailing was intended to
and did serve to forward and shield the fraudulent scheme by
seeming to corroborate the story that Nevcherlian had already
told the police. After all, to recover and retain the
insurance proceeds depended on reporting the supposed theft
to the police while at the same time dissembling about the
facts.
Parr v. United States, 363 U.S. 370 (1959), relied on by
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Nevcherlian, is not in point. There, employees stole money
that had been obtained by the school district, which had
obtained the funds by mailing tax assessments and received
checks by mail. The Supreme Court held that the mailings,
which were required by law and had been completed before the
funds were stolen, could not be treated as part of the
fraudulent scheme so as to invoke the mail fraud statute. In
our case, Nevcherlian's mailing was not compelled by law, nor
was it a separate activity completed before the end of the
fraudulent scheme. Rather, the mailing played an operative
role in the fraud.
Nevcherlian was also charged (in count 5) with a second
substantive count of mail fraud by causing Maryland Casualty
to make a mailing to Vermilyea. The mailing was the
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insurer's letter acknowledging that it had received
Vermilyea's claim for the theft of the 1975 Corvette.
Nevcherlian asked for a judgment of acquittal in the district
court on the ground that the mailing was not part of the
scheme to defraud, the district court rejected the assertion,
and Nevcherlian now claims error. Courts have long puzzled
to devise a formula that would capture the required
relationship between the use of the mails and the fraudulent
scheme. In Schmuck v. United States, 489 U.S. 705 (1989),
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the Supreme Court selected among its own earlier decisions
and declared that the mails had to be used in connection with
the fraud but their use "need not be an essential element of
the scheme" and could be merely "incidental to an essential
part of the scheme" or "a step in [the] plot." Id. at 710-
___
11. These expansive statements were made over a strong
dissent and go far toward making the mails a jurisdictional
hook.
The facts of Schmuck are also instructive as to the
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current reach of the mail fraud statute. The Court there
held that Schmuck's own fraudulent scheme to roll back
automobile odometers and then resell the cars to dealers was
sufficiently connected with the use of the mails because the
defrauded dealers subsequently mailed to the state title
forms to register the affected cars that they in turn had
sold to their own customers. The mailings did not themselves
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dupe either the retailers or their customers. The Court said
that it was enough that the passage of title, accomplished
through the mails, was a necessary part of the perpetuation
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of Schmuck's scheme--that is, his ability to carry out future
frauds of the same kind. Id. at 712.
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In our own case, Aetna's acknowledgment letter did not
itself involve any deception, but it was "incidental" to an
essential element in the scheme, namely, the criss-cross of
mailings that would reasonably be expected when false claims
are submitted to insurance companies, are processed, and are
ultimately paid, thereby making the fraud successful. From a
temporal standpoint, the mailing here was more closely
connected to the fraud than the mailings in Schmuck because
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the former was incident to the insurance payout that was the
very object of the fraud. Precedent amply supports the use
of mailings to and from the insurer or agent to supply this
element under the statute.2
Morrow, who was indicted on one substantive count of
mail fraud, also moved unsuccessfully for an acquittal. The
indictment charged (in count 3) that Morrow, together with
others in the conspiracy, caused Aetna to mail Brotan claims
materials for recovering on the alleged theft of the 1958
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2See, e.g., United States v. Koen, 982 F.2d 1101, 1108
___ ____ _____________ ____
(7th Cir. 1992); United States v. Bortnovski, 879 F.2d 30,
_____________ __________
40-41 (2d Cir. 1989); United States v. Contenti, 735 F.2d
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628, 632 (1st Cir. 1984).
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Corvette. Morrow preserved his claim by moving for a
judgment of acquittal. Morrow does not urge that the mailing
was unrelated to the fraud but argues that there was no
evidence to indicate that Morrow put anything in the mail or
caused Aetna to do so.
There is no requirement that the mailing be done by a
party to the fraud so long as the mailing bears the requisite
relationship to the fraudulent scheme. It is enough that
Morrow participated in a crime in which it was foreseeable
(here, almost inevitable) that the mails would be used.
United States v. Yefsky, 994 F.2d 885, 890, 892 (1st Cir.
_____________ ______
1993); United States v. Dray, 901 F.2d 1132, 1137 (1st Cir.
_____________ ____
1990), cert. denied, 498 U.S. 895 (1990). To this extent
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Morrow is properly chargeable with the foreseeable events
that he himself helped put in train. Morrow admitted at
trial that he knew that automobile insurance claims are
processed in part through the use of the mails.
IV.
There are three remaining claims of error on this
appeal. Each is advanced by Nevcherlian. We take them in
chronological order.
First, Nevcherlian appeals from the district court's
rejection of his motion to sever his prosecution from that of
Morrow. The attack on joinder is that there were two
different conspiracies and that neither appellant
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participated in the same conspiracy. Fed. R. Crim. P. 8(b)
allows two defendants to be joined in the same indictment "if
they are alleged to have participated in the same act or
transaction or in the same series of acts or transactions
constituting an offense or offenses." Here, the indictment
satisfied this requirement by alleging that appellants were
members of the same conspiracy.
Under Rule 8(b), the test for initial joinder is what is
responsibly alleged, not what is ultimately proved. See
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United States v. Boylan, 898 F.2d 230, 245 (1st Cir.), cert.
______________ ______ _____
denied, 498 U.S. 849 (1990). Whatever the deficiencies in
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proof, there was nothing irresponsible about the allegations
in the indictment. Where the facts at trial fail to support
an element necessary for joinder, the defendant must make a
showing of prejudice sufficient for severance under Fed. R.
Crim. P. 14. Schaffer v. United States, 362 U.S. 511 (1960).
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Appellants have made no such showing, and the very
separateness of the evidence relating to the two episodes
undermines such a claim.
Nevcherlian's second claim of error relates to the
admission of evidence. In the course of the trial, the
government introduced copies of the title certificate for the
1975 Corvette and of four bills of sale for that car. Each
document bore the purported signature of Nevcherlian. Each
was given to Brotan in the course of the conspiracy and in
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furtherance of it. Most of the documents were supplied by
Andreoni at meetings, already described, at which Nevcherlian
was not present.
Nevcherlian objected to the admission of these documents
at trial on the ground that there was no evidence that he had
signed them. The government says that later evidence shows
that he had signed at least one, but it admits that he
probably did not sign two of the others. At the time the
documents were introduced, the district court advised the
jury that the introduction of the documents did not establish
that Nevcherlian had signed them and that this would be a
matter for the jury to determine from the evidence.
Nevcherlian argues that this limiting instruction was
inadequate to avoid prejudice and confusion.
Where the relevance of a document depends on the
authenticity of a purported signature, the Federal Rules of
Evidence are somewhat more demanding than the practice of
ordinary life. Like the common law, Fed. R. Evid. 901
requires (with some exceptions) that there be some
affirmative proof of authenticity--that is, in a case like
this, proof that the document was in fact signed by the
purported signatory. Such proof is normally offered before
the document may be considered by the jury, but conditional
admissibility is not precluded. Fed. R. Evid. 104(b).
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But each of the five documents at issue in this case was
admissible without regard to whether Nevcherlian's signature
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was genuine. Each document played a role in the 1975
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Corvette transaction itself. Thus each helped to establish
the existence of a conspiracy, its method of operation, and
transactions between various of the participants. In short,
each document was admissible against Nevcherlian for these
purposes regardless whether the signature was genuine.
Nevcherlian was independently linked to the conspiracy by
other evidence, especially evidence of his presence and
statements at the crucial meeting July 26.
Nevcherlian's objection is thus a garden-variety
argument that the appearance of his name at the bottom,
without adequate authentication, meant that the documents'
prejudicial effect substantially outweighs their probative
value. Fed. R. Evid. 403. Even assuming that Nevcherlian
made this precise objection at trial, its rejection would not
constitute an abuse of discretion, especially in light of the
cautionary instruction. Nevcherlian might have argued for a
firmer instruction--e.g., expressly forbidding the jury from
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treating the signature as genuine until this was proved by
independent evidence--but he did not do so.
Finally, Nevcherlian says that the district court erred
because it refused to give a requested defense instruction
that "good faith on the part of the Defendant is a complete
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defense to a charge of mail fraud." Nevcherlian does not
deny that the other jury instructions given by the district
court properly set forth the elements of the crimes charged.
He merely asks us to reexamine United States v. Dockray, 943
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F.2d 152, 155 (1st Cir. 1991), holding that the trial court
is not required to give a specific good faith instruction.
This panel is not free to disregard recent, unimpaired
precedent of this court. Affirmed.
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