Not for Publication in West's Federal Reporter Citation Limited Pursuant to 1st Cir. Loc. R. 32.3 

# United Stat es Court of Appeals

For the First C ircuit

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 . DavidO. 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, 20031 Defe ndants also hint at other theories why there was

insufficient evidence to support the jury's "pattern" finding, but those theories fail because, in add ition to being only minimally developedon appeal, they were n ot p resented with sufficient specificity to the district court before the jury was discharged. See infra . -2-

Per Curiam . Defendants Andrea, Mich ael, and John R. Lentz, individually and d/b/a L&L Collisions, appeal civil judgments en tere d upon jury verdicts concluding that they participatedin an automobile insurance fraud scheme which damaged plaintiff Metropolitan Property & Casu alty 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 th e sche me, there was insufficient evidence from which the jury could have found the predicate acts of mail fraud -- the theory under which the RICO claimwent to the jury -- and, derivatively, insufficient evidence fromwhich the jury could have found that the alleged acts of mail fraudconstituted a "pattern" of racketeering activity. 1 Proceeding on the assumption that their pr inc ipal appellate argu ment i s 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-3-

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 understoo d u ntil 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 ignoran ce or neglect" are subject to plain error review, which permits error c orrect ion in civil cases only when the error "resulted in a miscarriage of justice or seriously affected th e fa irness, 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 handdeliv ered. An ambiguity of this sort does not call into question the fundamental fairness of the trial. To vacate or-4-

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 .