considered this contention and concluded "that a reasonable jury
could readily have found liability on the RICO . . .  claims,"
because "[t]here was sufficient circumstantial evidence to prove
Theodore's knowing involvement in the fraudulent management of
the Royal Oaks service Department."  Mem. Op. at 3-4.
          In reviewing an order denying or granting a judgment as
a matter of law, we exercise plenary review, applying the same
standard as the district court.  Lightning Lube, 4 F.3d at 1166.
That standard permits such a motion to be granted "only if,
viewing the evidence in the light most favorable to the non-
movant and, giving it the advantage of every fair and reasonable
inference, there is insufficient evidence from which a jury
reasonably could find liability."  Id.  In making such a
determination, "the court may not weigh the evidence, determine
the credibility of witnesses, or substitute its version of the
facts for the jury's version."  Id.  While a "scintilla of
evidence is not enough to sustain a verdict of liability," the
question is "whether there is evidence upon which the jury could
properly find a verdict for that party."  Id.  It is
uncontroverted that Mark and other dealership employees committed
numerous acts of mail fraud by systematically mailing false and
fraudulent warranty claims to Jaguar.  At issue on appeal is
whether the evidence presented to the jury supports the
conclusion that Theodore aided and abetted these predicate acts.
          We have held that a defendant may be liable under RICO
if he aided or abetted the commission of at least two predicate
acts of mail fraud.  See Banks v. Wolk, 918 F.2d 418, 421 (3d
Cir. 1990); Petro-Tech, 824 F.2d at 1356.  Civil RICO liability
for aiding and abetting advances RICO's goal of permitting
recovery from anyone who has committed the predicate offenses,
"regardless of how he committed them."  Petro-Tech, 824 F.2d at
1357.  In order to find a defendant liable for aiding and
abetting a predicate act under RICO, the plaintiff must prove (1)
that the substantive act has been committed, and (2) that the
defendant alleged to have aided and abetted the act knew of the
commission of the act and acted with intent to facilitate it.
Local 560, 780 F.2d at 284.  The first element has concededly
been met in this case.  With regard to the second, a plaintiff
need not offer direct evidence of intent.  Rather, the fact
finder may infer a defendant's knowledge and intent from
circumstantial evidence.  See Genty v. Resolution Trust Corp.,
937 F.2d 899 (3d Cir. 1991); United States v. Local 560, 780 F.2d
267, 284 ("[I]t has long been settled that it is permissible to
infer from circumstantial evidence the existence of intent.").
          We must therefore consider whether, giving Jaguar the
advantage of every fair and reasonable inference, there is
sufficient evidence from which a jury reasonably could find that
Theodore knew of the fraud and acted with the intent to
facilitate it.  We recognize, as Jaguar concedes, that no single
piece of evidence links Theodore directly to the fraud.  Rather,
Jaguar contends that while Mark directed the fraudulent scheme,
Theodore's experience and active participation in the Royal Oaks
dealership, combined with the extent of the fraud, present a
sufficient basis from which a reasonable jury could have
concluded that he was aware of and facilitated the fraudulent
scheme.  We agree.
          Theodore was the 51% owner and active president of the
Royal Oaks Jaguar dealership.  While Theodore had been a car
dealer since 1956, his son Mark had relatively little experience
in operating a dealership.  Theodore was actively involved in the
operation of Royal Oaks.  He spent roughly twenty-five to thirty
hours a week at the dealership and had ultimate supervisory
responsibility for the dealership's operations.  Theodore was
Mark's supervisor, and met with him daily to discuss the
operation of the dealership, including its parts and service
department.  In order to have exculpated Theodore, the jury would
had to have believed that in those meetings they never discussed,
in any depth, the operation of the service department and the
source of that department's income; even though, during this
period, the service department was accounting for between
$200,000 and $400,000 of the dealership's monthly income, thereby
allowing Theodore to maintain his annual salary of one-half
million dollars.
          In our view, the evidence supports the conclusion that
Theodore was aware of and concerned about all of the operations
of the dealership.  His salary was five times the amount of any
other employee, including Mark.  Theodore acknowledged in his
testimony that he reviewed the dealership's financial statements
on a monthly basis and spent "a lot" of time "inspecting and
looking around the building."
          Royal Oaks generated hundreds of thousands of dollars a
month in warranty claims, while actual work had declined to a
point where there were few, if any cars in the service
department.  The evidence presented at trial demonstrated that
the dealership's ten service technicians, in order to occupy
their time, regularly sat at their workbenches reading magazines,
or congregated to pitch coins, play ping-pong, play softball, or
operate electronic cars.  Similarly, some technicians themselves
asked to be laid off because they didn't believe that there was
enough work to keep them busy.  In a dealership which employed a
total of roughly thirty-five people, a jury could reasonably have
found it likely that Theodore was aware of a fraudulent scheme so
pervasive that the evidence suggested it was the subject of
innumerable jokes among Royal Oaks' employees.
          The jury could also reasonably have concluded that an
experienced dealer, such as Theodore, would have grown suspicious
of the excessive amount of service income attributable to
warranty work, when examining the dealership's financial
statements.  Because of the pervasive warranty fraud, Royal Oaks
had an unusually high percentage of service department income
attributable to warranty work, as opposed to customer-paid
repairs.  Given Theodore's monthly scrutiny of the dealership's
financial statements, the jury could have concluded he was aware
of and facilitated the source of this aberrant financial data.
          In addition, Theodore was aware of Jaguar's
unprecedented week long monitoring of Royal Oaks' service
department, and in response called Jaguar regarding it.  The jury
could reasonably have found it inconceivable that Theodore was
not aware of and did not facilitate the rampant fraud which both
preceded and followed Jaguar's investigation.
          In sum, we conclude that the evidence of Theodore's
control over the dealership (including his spending significant
time there, reviewing the financial statements, and discussing
the dealership's operations on a daily basis with his son, the
architect of the fraudulent scheme), combined with evidence of
the pervasive nature of the fraudulent scheme, allowed the jury
to reasonably find Theodore liable of aiding and abetting the
predicate acts of mail fraud.
          For the foregoing reasons, the judgment of the district
court and its order denying the defendants' post-trial motions
will be affirmed.
--- FMail/386 1.0g
(1:2629/124)
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