Not for Publication in West's Federal Reporter

Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

United States Court of Appeals

For the First Circuit

No. 02-1977

METROPOLITAN PROPERTY & CASUALTY INSURANCE COMPANY,

Plaintiff, Appellee,

v.

ANDREA LENTZ, MICHAEL LENTZ, JOHN R. LENTZ,

INDIVIDUALLY, d/b/a L&L COLLISIONS,

Defendants, Appellants.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Douglas P. Woodlock, U.S. District Judge]

Before

 Boudin, Chief Judge,

Torruella and Howard, Circuit Judges.

David O. Brink with whom Richard D. King, Jr., Nathan A.

Tilden and Smith & Brink, P.C. were on brief, for appellee.

Bruce T. Macdonald for appellants.

September 22, 2003
1Defendants also hint at other theories why there was

insufficient evidence to support the jury's "pattern" finding, but

those theories fail because, in addition to being only minimally

developed on appeal, they were not presented with sufficient

specificity to the district court before the jury was discharged.

See infra.

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Per Curiam. Defendants Andrea, Michael, and John R.

Lentz, individually and d/b/a L&L Collisions, appeal civil

judgments entered upon jury verdicts concluding that they

participated in an automobile insurance fraud scheme which damaged

plaintiff Metropolitan Property & Casualty Company and violated,

inter alia, the Racketeering Influenced and Corrupt Organizations

("RICO") Act. See 18 U.S.C. §§ 1962, 1964. Defendants argue that,

due to a nearly complete absence of evidence that the United States

mails were used in furtherance of the scheme, there was

insufficient evidence from which the jury could have found the

predicate acts of mail fraud -- the theory under which the RICO

claim went to the jury -- and, derivatively, insufficient evidence

from which the jury could have found that the alleged acts of mail

fraud constituted a "pattern" of racketeering activity.1

Proceeding on the assumption that their principal appellate

argument is meritorious, defendants further contend that the

evidence relevant to the RICO counts (which defendants say the jury

never should have heard) was so prejudicial that it might well have

misled the jury into holding them liable under non-RICO theories.

Our review of the record reveals that defendants did not
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present either their principal appellate argument, or the "pattern"

argument which is largely built from it, see n.1, above, to the

district court with sufficient specificity to have made their

position on the matter understood until after the jury verdicts

were returned. We will not disturb a lower court's judgment on the

basis of an argument raised so late in the game unless the argument

persuades us that, among other things, a miscarriage of justice has

occurred. See Davignon v. Clemmey, 322 F.3d 1, 13 (1st Cir. 2003)

(argument first presented in a post-verdict Fed. R. Civ. P. 50

motion is forfeited); Blockel v. J.C. Penney Co., Inc., 337 F.3d

17, 25 (1st Cir. 2003) (sufficiency arguments must be made with

specificity to preserve them for plenary appellate review); RiveraTorres v. Ortiz Velez, 2003 WL 22006239, at *14 (1st Cir. Aug. 26,

2003) ("claims forfeit[ed] through ignorance or neglect" are

subject to plain error review, which permits error correction in

civil cases only when the error "resulted in a miscarriage of

justice or seriously affected the fairness, integrity, or public

reputation of judicial proceedings") (citations and internal

quotation marks omitted). There was no miscarriage of justice in

this case. Rather than demonstrating or strongly suggesting that

no mailings took place in furtherance of the scheme, the record is

merely ambiguous about which documents were mailed and which were

hand delivered. An ambiguity of this sort does not call into

question the fundamental fairness of the trial. To vacate or
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reverse the judgments on the basis of an issue that only came into

focus after the jury was discharged could encourage sandbagging in

future cases with little in the way of present benefits. 

Defendants' remaining appellate argument regarding

prejudicial spillover depends upon our agreeing with their

principal argument. Because we have rejected defendants' principal

argument, we reject defendants' remaining argument without further

discussion.

Affirmed.