United States v. Corliss , 919 F.3d 666 ( 2019 )

United States Court of Appeals
For the First Circuit
No. 17-1942
UNITED STATES OF AMERICA,
Appellee,
v.
THOMAS CORLISS,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Leo T. Sorokin, U.S. District Judge]
Before
Lynch, Selya, and Boudin,
Circuit Judges.
Robert L. Sheketoff on brief for appellant.
Andrew E. Lelling, United States Attorney, and Mark T.
Quinlivan, Assistant United States Attorney, on brief for
appellee.
March 27, 2019
BOUDIN, Circuit Judge. On June 12, 2017, following a
nine-day trial, a jury convicted Thomas Corliss of ten counts of
mail fraud, 18 U.S.C. § 1341, and one count of embezzlement from
an organization receiving federal-program benefits, 18 U.S.C. §
666(a)(1)(A). He was sentenced on September 7, 2017, to concurrent
prison terms of one year and one day, to be followed by one year
of supervised release. Corliss now appeals from his conviction.
At trial, the government presented evidence that between
March and September 2015, Corliss, who was a Lieutenant in the
Quincy Police Department, submitted fraudulent detail and overtime
timesheets, which double counted time he worked. Corliss reported
that he worked details at the same time as regular shifts, details
at the same time as other details, training at the same time as
regular shifts, and overtime at the same time as regular shifts.
In one instance, Corliss claimed he worked three details while
taking a vacation day.
To support its case, the government introduced work
schedules, detail timesheets, detail invoices, overtime calendars,
and payroll documents. The government also called officers and
city officials to testify. The government's principal witness was
Captain John Dougan, who serves as the Executive Officer of the
Quincy Police Department. Captain Dougan testified about the
policies and procedures governing Quincy Police scheduling and
compensation, including the collective bargaining agreements
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between the City of Quincy and its police officers. He also
explained the initial investigation into what he called Corliss's
"double-dipping."
Corliss claims the district court erred during Captain
Dougan's testimony by improperly restricting cross examination.
The court prevented Corliss from asking whether any other police
officers faced disciplinary action for violating the department's
policy on overlapping shifts. Corliss argues that Captain Dougan's
likely concession--that no other police officers faced
disciplinary action for violations like those Corliss committed--
would have helped show his actions were consistent with permitted
practices, negating any specific intent to defraud.
Likely, the testimony was relevant, cf. Fed. R. Evid.
401, although that is a precondition and not a guarantee of
admissibility. The government says that Corliss did not make this
theory of relevance clear to the district court, see United States
v. Malik, 928 F.2d 17, 20 (1st Cir. 1991), but Corliss's attorney
proposed in his opening statement that police leadership
consciously avoided disciplining other officers for similar
conduct and that Corliss lacked the specific intent to defraud.
Given the trial judge's "wide latitude" to set
reasonable limits on cross examination, Delaware v. Van Arsdall,
475 U.S. 673, 679 (1986), the district court might have deemed the
testimony's value outweighed by its risk of misleading the jury by
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implying that Corliss's behavior was proper because others who
engaged in similar conduct were not disciplined, see Fed R. Evid.
403, but the judge did not explain his ruling.
Yet even supposing a properly preserved claim of error,
a new trial is unnecessary when the error is harmless. Fed. R.
Crim. P. 52(a). Here, Corliss's lone witness examined daily
rosters and detail sheets during the time period Corliss double-
dipped and offered a chart that, so far as we can tell, showed
other officers violated the department's policy on overlapping
shifts. Also, Captain Dougan admitted he was "sure" that "a lot
of people" violated the policy and acknowledged leadership did not
investigate other officers. So, limiting cross examination did
not stop the jury from hearing Corliss's argument and the
supporting evidence.
Corliss further argues that the district court
improperly permitted Captain Dougan to testify regarding the
meaning of the collective bargaining agreement. Corliss explains
that his theory at trial was that the collective bargaining
agreement permitted an officer to accrue pay for multiple
activities simultaneously. In Corliss's view, the district court
erred when it allowed Captain Dougan to testify on re-direct that
"[a]ccording to the collective bargaining agreement," Corliss
could not properly claim that he worked motorcycle training at the
same time he worked details.
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Corliss likely waived any objection to Captain Dougan's
invoking the collective bargaining agreement when Corliss's
attorney himself elicited just such testimony from Captain Dougan
on cross examination. See Willco Kuwait (Trading) S.A.K. v.
deSavary, 843 F.2d 618, 624–25 (1st Cir. 1988). When questioning
Captain Dougan about the motorcycle training, Corliss's attorney
asked Captain Dougan not only to interpret the collective
bargaining agreement but also to apply the agreement's terms to a
hypothetical situation.
Corliss says that Captain Dougan's testimony was "[o]ver
the defendant's objection." Most of Corliss's objections were
that the prosecutor was leading Captain Dougan. When Corliss's
attorney objected to questioning Captain Dougan on the collective
bargaining agreement, he simply stated "[o]bjection" without
further explanation. But to preserve a claim, a litigant must
"call his specific objection to the attention of the trial judge,"
United States v. Piva, 870 F.2d 753, 759 (1st Cir. 1989) (internal
quotation marks and brackets omitted), which Corliss's arguably
unexplained objection failed to do here.
Anyway, assuming a preserved objection, Corliss's
attorney himself questioned Captain Dougan about the collective
bargaining agreement's provisions on training, detail, and
overtime compensation. This line of questioning, if it did not
waive Corliss's claim, opened the door to follow-up questions on
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re-direct on related provisions. See United States v. Marin, 523
F.3d 24, 28–30 (1st Cir. 2008). Therefore, no error occurred.
Corliss's final claim on appeal is that the government's
closing argument, which included photographs of government
witnesses that were not admitted as evidence, represents
prosecutorial misconduct warranting a new trial. During its
closing, the government displayed a PowerPoint slide that included
pictures of Corliss and members of Corliss's unit who testified
for the government at trial. The picture of Corliss had been
admitted as evidence, but not so the pictures of the others.
After Corliss's attorney objected, the court instructed
the prosecutor to take down the pictures and told the jury that
they should disregard the pictures. But apparently the
prosecutor's slideshow happened several more times to hit on
unadmitted pictures, which Corliss now says was prosecutorial
misconduct warranting a new trial. See United States v. Auch, 187
F.3d 125, 129 (1st Cir. 1999).
Here, the conduct, even if more than accidental, did not
"so poison[] the well that the trial's outcome was likely
affected." United States v. Joyner, 191 F.3d 47, 54 (1st Cir.
1999) (internal quotation marks omitted). During the government's
closing, the trial court instructed the jury twice to disregard
the pictures and in its instructions reminded the jury to disregard
any excluded evidence. United States v. Zarauskas, 814 F.3d 509,
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516 (1st Cir. 2016). Given the government's powerful evidence of
guilt, conviction would hardly have been avoided absent the
witnesses' pictures.
Affirmed.
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