FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MASSACHUSETTS [Hon. Leo T. Sorokin, U.S. District Judge]
L. Sheketoff on brief for appellant.
E. Lelling, United States Attorney, and Mark T. Quinlivan,
Assistant United States Attorney, on brief for appellee.
Lynch, Selya, and Boudin, Circuit Judges.
BOUDIN, Circuit Judge.
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.
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.
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 between the City of Quincy and its
police officers. He also explained the initial investigation
into what he called Corliss's "double-dipping."
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.
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.
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
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
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.
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
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 ...