United States v. Morrow

December 19, 1994 UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 93-1463

UNITED STATES OF AMERICA,

Appellee,

v.

CHARLES MORROW,

Defendant, Appellant.

No. 93-1477
No. 93-1635

UNITED STATES OF AMERICA,

Appellee,

v.

JACOB NEVCHERLIAN,

Defendant, Appellant.

ERRATA SHEET

The opinion of this Court, issued on November 9, 1994 is
amended as follows:

On page 11, line 3 of last paragraph, insert "the" before
"crime" and replace "if" with "though".

On page 13, last line, delete "the" before "this".

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 93-1463

UNITED STATES OF AMERICA,
Appellee,

v.
CHARLES MORROW,

Defendant, Appellant.

No. 93-1477
No. 93-1635
UNITED STATES OF AMERICA,

Appellee,
v.

JACOB NEVCHERLIAN,
Defendant, Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ernest C. Torres, U.S. District Judge]

Before
Breyer,* Chief Judge,

Boudin and Stahl, Circuit Judges.

Edward J. Romano for appellant Charles Morrow.

Robert B. Mann, by Appointment of the Court, with whom Mann &

Mitchell was on brief for appellant Jacob Nevcherlian.

Margaret E. Curran, Assistant United States Attorney, with whom

Edwin J. Gale, United States Attorney, and James H. Leavey, Assistant

United States Attorney, were on brief for the United States.

November 9, 1994

*Chief Judge Stephen Breyer heard oral argument in this matter, but
did not participate in the drafting or the issuance of the panel's
opinion. The remaining two panelists therefore issue this opinion
pursuant to 28 U.S.C. 46(d).

BOUDIN, Circuit Judge. This automobile fraud case poses

a tricky issue in conspiracy law that may not have been

clearly addressed in this circuit. We conclude that some

evidence may have been admitted at trial against both

appellants that was admissible only against one of the two,

but we also find that the error was clearly harmless.

Rejecting all other claims of error, we affirm.

I.

In March 1992, a federal grand jury indicted the two

appellants--Charles Morrow and Jacob Nevcherlian--together

with Rodney Andreoni, Vito DeLuca and Randal Lane for

conspiracy to commit mail fraud. 18 U.S.C. 371.

Nevcherlian was also charged with two substantive violations

of the mail fraud statute, 18 U.S.C. 1341, and Morrow was

similarly charged with one such violation.

DeLuca, Andreoni and Lane pled guilty. Morrow and

Nevcherlian were tried together in January 1993. At trial,

the government's chief witness was FBI agent Gary Brotan, who

had pretended to participate in the scheme. His extensive

testimony was supplemented by documents and by recordings of

certain of the conversations among the indicted defendants.

The government's evidence, if believed, tended to show the

following.

In early 1991, the FBI began investigating a possible

case of automobile insurance fraud. A confidential

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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

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.

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

of the appellants has a colorable claim that, although guilty

of conspiracy to commit mail fraud, neither participated in

the overarching conspiracy charged in the indictment but

rather each joined only in a smaller, separate conspiracy

relating to a different car--Nevcherlian being associated

with the 1975 Corvette and Morrow with the 1958 Corvette.

The law of conspiracy is fraught with difficulties but

perhaps no aspect is more confusing than "the scope to be

accorded to a combination, i.e., the singleness or

multiplicities of the conspiratorial relationships . . . ."

American Law Institute, Model Penal Code and Commentaries 423

(1985). One reason is that the "scope" issue is used to

decide a variety of quite different issues, ranging from

substantive responsibility for co-conspirator acts, overt act

requirements, and double jeopardy, to admissibility of

hearsay, venue, joinder and limitations issues. From a

policy standpoint, not all should necessarily be treated in

the same way.

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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]."

Developments in the Law: Criminal Conspiracy, 72 Harv. L.

Rev. 920, 934 (1959). To emphasize "agreement," the core

concept in conspiracy, Iannelli v. United States, 420 U.S.

770, 777 (1975), implies that "scope" is to be resolved by

asking what the defendant agreed to do, or at least knew to

be likely. By contrast, if the "group" character of the

crime is emphasized, "scope" may seem more to be a function

of how the enterprise conducted itself rather than what any

one individual had in mind.

In our view, the governing principle is this: at a

minimum, a conspirator must have knowledge or foresight of

the conspiracy's multiplicity of objectives before that

defendant is convicted of a multiple-crime conspiracy.

Conviction for such a multiple-crime conspiracy remains

possible even if the conspiracy is open-ended (e.g., a

conspiracy to rob banks) and the specifics of the future

crimes (e.g., which banks) is undetermined or at least

unknown to the defendant. But if a defendant agrees with

others simply to commit a single crime (e.g., to rob one

bank) and has no knowledge or foresight of the conspiracy's

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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

States v. Townsend, 924 F.2d 1385, 1391 (7th Cir. 1991). I n

this case the government has not attempted on appeal to point

us to evidence to show that either Nevcherlian or Morrow was

aware that the conspiracy embraced multiple frauds. No such

evidence may exist as to Nevcherlian; Morrow is arguably a

closer case but his broader knowledge is not unequivocally

established. Nor is this the type of conspiracy, such as a

drug ring, where knowledge that multiple crimes are intended

1See, e.g., United States v. Brandon, 17 F.3d 409, 428

(1st Cir. 1994) ("knowledge of the basic agreement"
required); United States v. Mena Robles, 4 F.3d 1026, 1033

(1st Cir. 1993) ("common goal or overall plan"); United

States v. Zimmerman, 832 F.2d 454, 458 (8th Cir. 1987)

(conspirators "aware of the general nature and scope of the
conspiracy"); United States v. Evans, 970 F.2d 663, 670 (10th

Cir. 1992) ("shared" and not just "parallel" object), cert.

denied, 113 S. Ct. 1288 (1993).

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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

reversal only if shown to be prejudicial. United States v.

Sutherland, 929 F.2d 765, 773 (1st Cir. 1991).

On appeal, the closest that either appellant comes to an

assertion of prejudice relates to the admission of hearsay.

In accordance with settled First Circuit practice, the

district judge admitted provisionally a number of co-

conspirator statements against both appellants--specifically,

recordings or Brotan's testimony of what was said at various

meetings. See United States v. Pettrozziello, 548 F.2d 20

(1st Cir. 1977); United States v. Ciampaglia, 628 F.2d 632

(1st Cir.), cert. denied, 449 U.S. 956, 1038 (1980).

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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

condition has not been met here.

It remains to consider whether harm occurred. Normally,

where evidence is wrongly admitted over objection, it is for

the government to show that it was harmless. United States

v. Welch, 15 F.3d 1202, 1214 (1st Cir. 1993). Here, however,

we think that harmlessness is apparent from the distinctness

of the two fraudulent schemes. The admissible evidence

against each appellant amply proved his complicity in the

narrow conspiracy relating to the car furnished by that

appellant. There is no indication that inadmissible evidence

as to the first fraud came in against Nevcherlian or, as to

the second, against Morrow.

It is true that in principle some of the evidence used

to prove the second fraud was wrongly admitted against

Nevcherlian; a limiting instruction excluding its use as to

him would have been proper. But nothing tied Nevcherlian to

that fraud, and it is a virtual certainty that the jury

convicted him because of his involvement with the first

fraud. The same is true, mutatis mutandis, of the case

against Morrow. Nor is this an instance in which one of the

frauds was doubtful and the proof of one depended upon proof

of the other. If ever an error was harmless, this is it.

III.

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We next consider appellants' attacks on their

convictions for the substantive (i.e., non-conspiracy)

counts. In addition to conspiracy, Nevcherlian was convicted

of two counts of mail fraud. The first count at issue (count

4) charged that Nevcherlian, as part of the fraudulent

scheme, had mailed "matter" in Rhode Island to the

Narraganset Police Department. The evidence at trial showed

that Nevcherlian mailed a copy of the title for the 1975

Corvette from Florida to the Narraganset police in Rhode

Island in response to the police request for paperwork

confirming the story he had told the police about the sale of

the Corvette.

Nevcherlian's first argument for a judgment of

acquittal, made in the district court and renewed on appeal,

is that there is a fatal variance because Nevcherlian

actually mailed the title from Florida rather than from Rhode

Island (as alleged in the indictment). Such a variance

would, as already noted, be a basis for relief only if it

caused prejudice to the defendant; and in this instance there

is no showing of prejudice. We reject the variance claim on

this ground without reaching the government's alternative

argument that the mailing could be regarded as occurring

partly in Rhode Island.

Nevcherlian's second argument for an acquittal on this

count, again properly preserved, is that the mailing of the

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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

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),

the Supreme Court selected among its own earlier decisions

and declared that the mails had to be used in connection with

the fraud but their use "need not be an essential element of

the scheme" and could be merely "incidental to an essential

part of the scheme" or "a step in [the] plot." Id. at 710-

11. These expansive statements were made over a strong

dissent and go far toward making the mails a jurisdictional

hook.

The facts of Schmuck are also instructive as to the

current reach of the mail fraud statute. The Court there

held that Schmuck's own fraudulent scheme to roll back

automobile odometers and then resell the cars to dealers was

sufficiently connected with the use of the mails because the

defrauded dealers subsequently mailed to the state title

forms to register the affected cars that they in turn had

sold to their own customers. The mailings did not themselves

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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

of Schmuck's scheme--that is, his ability to carry out future

frauds of the same kind. Id. at 712.

In our own case, Aetna's acknowledgment letter did not

itself involve any deception, but it was "incidental" to an

essential element in the scheme, namely, the criss-cross of

mailings that would reasonably be expected when false claims

are submitted to insurance companies, are processed, and are

ultimately paid, thereby making the fraud successful. From a

temporal standpoint, the mailing here was more closely

connected to the fraud than the mailings in Schmuck because

the former was incident to the insurance payout that was the

very object of the fraud. Precedent amply supports the use

of mailings to and from the insurer or agent to supply this

element under the statute.2

Morrow, who was indicted on one substantive count of

mail fraud, also moved unsuccessfully for an acquittal. The

indictment charged (in count 3) that Morrow, together with

others in the conspiracy, caused Aetna to mail Brotan claims

materials for recovering on the alleged theft of the 1958

2See, e.g., United States v. Koen, 982 F.2d 1101, 1108

(7th Cir. 1992); United States v. Bortnovski, 879 F.2d 30,

40-41 (2d Cir. 1989); United States v. Contenti, 735 F.2d

628, 632 (1st Cir. 1984).

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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

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

United States v. Boylan, 898 F.2d 230, 245 (1st Cir.), cert.

denied, 498 U.S. 849 (1990). Whatever the deficiencies in

proof, there was nothing irresponsible about the allegations

in the indictment. Where the facts at trial fail to support

an element necessary for joinder, the defendant must make a

showing of prejudice sufficient for severance under Fed. R.

Crim. P. 14. Schaffer v. United States, 362 U.S. 511 (1960).

Appellants have made no such showing, and the very

separateness of the evidence relating to the two episodes

undermines such a claim.

Nevcherlian's second claim of error relates to the

admission of evidence. In the course of the trial, the

government introduced copies of the title certificate for the

1975 Corvette and of four bills of sale for that car. Each

document bore the purported signature of Nevcherlian. Each

was given to Brotan in the course of the conspiracy and in

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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

was genuine. Each document played a role in the 1975

Corvette transaction itself. Thus each helped to establish

the existence of a conspiracy, its method of operation, and

transactions between various of the participants. In short,

each document was admissible against Nevcherlian for these

purposes regardless whether the signature was genuine.

Nevcherlian was independently linked to the conspiracy by

other evidence, especially evidence of his presence and

statements at the crucial meeting July 26.

Nevcherlian's objection is thus a garden-variety

argument that the appearance of his name at the bottom,

without adequate authentication, meant that the documents'

prejudicial effect substantially outweighs their probative

value. Fed. R. Evid. 403. Even assuming that Nevcherlian

made this precise objection at trial, its rejection would not

constitute an abuse of discretion, especially in light of the

cautionary instruction. Nevcherlian might have argued for a

firmer instruction--e.g., expressly forbidding the jury from

treating the signature as genuine until this was proved by

independent evidence--but he did not do so.

Finally, Nevcherlian says that the district court erred

because it refused to give a requested defense instruction

that "good faith on the part of the Defendant is a complete

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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

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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