U.S. v. Rossomando

Citation144 F.3d 197
Decision Date10 April 1998
Docket NumberDocket No. 97-1491
PartiesUNITED STATES of America, Appellee, v. Phillip ROSSOMANDO, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Edward A. McDonald, Reboul, MacMurray, Hewitt, Maynard & Kristol, New York City (Lisa A. Ferrari, John C. Ertman, of counsel), for Defendant-Appellant.

Jonathan S. Sack, Assistant United States Attorney for the Eastern District of New York, Brooklyn, NY (Zachary W. Carter, United States Attorney for the Eastern District of New York, Emily Berger, Assistant United States Attorney, of counsel), for Appellee.

Before: OAKES and CABRANES, Circuit Judges, and HURLEY, District Judge *.

JOSE A. CABRANES, Circuit Judge:

Defendant-appellant Phillip Rossomando appeals from a judgment of the United States District Court for the Eastern District of New York (Raymond J. Dearie, Judge ), convicting him of one count of mail fraud under 18 U.S.C. § 1341. 1 Rossomando argues that the court's jury charge improperly suggested that the government did not have to prove that Rossomando intended to harm his victim in order to be guilty of mail fraud. We agree, and therefore reverse the judgment of the district court.

I.

Rossomando is a retired New York City firefighter who was awarded a disability pension in 1989 as the result of a service-related injury. The New York City Fire Department's Pension Bureau ("Pension Bureau"), which administers the payment of benefits to retired firefighters, permits a retired firefighter to earn outside income while receiving a disability pension, but limits the amount that may be earned by a disabled firefighter, without sacrificing a portion of the disability pension, prior to the twentieth anniversary of his hire date. The maximum amount of outside income that a firefighter may earn before being required to reimburse the excess to the Fire Department's Pension Fund ("Pension Fund") is called the "Safeguard Limitation." The Safeguard Limitation is determined for each pensioner using a calculation that factors in the base salary of "the next highest rank" to that at which the pensioner retired, along with several adjustments, the most important of which is the number of overtime hours worked by the pensioner in his final year of service. Until the twentieth anniversary of his hire date, a disabled firefighter is required to complete Pension Bureau questionnaires reporting his outside income so that the Pension Bureau can determine whether the Pension Fund is entitled to any recoupment.

Although the Pension Bureau's regular practice is to send out questionnaires annually, due to administrative problems it failed to mail questionnaires for the years 1991-1993 in a timely fashion, and instead mailed them in 1995 together with the 1994 income-year questionnaire. Rossomando, who had held numerous jobs in the years since his retirement in 1989, completed the forms, but a subsequent comparison of these forms to his income tax returns revealed that he provided the Pension Bureau with false information about his outside employment and understated his outside income by more than $100,000 over the four-year period, resulting in a $43,218 loss to the Pension Fund. The government charged Rossomando in a one-count indictment of violating the mail-fraud statute, 18 U.S.C. § 1341.

Rossomando's primary defense at trial was that he lacked the requisite intent to harm the Pension Fund. He claimed that, based on his mistaken understanding of the applicable Safeguard Limitation--allegedly gained from speaking to union personnel and other Fire Department employees--he believed that his outside earnings did not even approach, much less exceed, the level at which the Pension Fund would be entitled to reimbursement. Under pressure to complete the questionnaires before the deadline (after having failed to open them for some time), and unable to locate his income tax returns for the relevant years, Rossomando claimed that he carelessly filled out the forms using incomplete and inaccurate information, but did not believe that the incorrect information would cause any loss to the Pension Fund because he believed his earnings fell well below the applicable Safeguard Limitation.

The court's jury charge properly indicated that Rossomando had to have intended to harm the Pension Fund in order to be guilty of mail fraud, stating that "the government must prove that the alleged scheme contemplated depriving another of money or property," and that "[i]ntent to defraud simply means to act knowingly and with the specific intent to deceive for the purpose of causing some financial or property loss to another." Later in the charge, however, the court instructed the jury as follows regarding the possibility of a "good-faith defense":

Since an essential element of the crime charged is an intent to defraud, it follows that good faith on the part of the defendant is a complete defense to the charge of mail fraud....

Under the mail fraud statute, even false representations or statements or omissions of material fact do not amount to fraud unless done with fraudulent intent, as I've told you. However misleading or deceptive a plan may be, it is not fraudulent if it was devised or carried out in good faith. An honest belief in the truth of the representations made by the defendant or an honest belief that all material information had been disclosed is a good defense, however inaccurate the statements may turn out to be.

In considering whether or not the defendant acted in good faith, you are instructed that a belief by the defendant, if such a belief existed, that ultimately everything would work out so that no one would lose any money does not require a finding by you that he acted in good faith. No amount of honest belief on the part of the defendant that the scheme would not ultimately result in a financial loss to the New York City Fire Department or its Pension Fund will excuse fraudulent actions or false representations by him to obtain money, provided, of course, that the government proves beyond a reasonable doubt that the defendant acted with the specific intent to defraud.

(emphasis added).

During a colloquy that occurred prior to the charging of the jury, the defendant's trial counsel, who does not represent him on appeal, mildly and somewhat ambiguously objected to the portion of the charge italicized above, arguing that it suggested that Rossomando could be convicted despite having had no intent to harm the Pension Fund. The Assistant United States Attorney litigating the case for the government defended the language, stating that it was intended to "take[ ] away the no harm, no foul defense," and proceeded to give an example of such an (illegitimate) defense: "someone who files false forms to a bank, says 'The bank didn't end up losing any money so it was okay and I really didn't mean for the bank to lose any money because I meant to pay back my loan.' " The court stated that "[t]hat's clearly what it's addressed to," but told defense counsel that it understood counsel's concern, and would be "happy to consider" additional or alternative language he might suggest. Defense counsel stated that he would "work on that language," but failed to submit anything to the court. Immediately before the issuance of the charge, defense counsel raised the issue once again, albeit in a half-hearted manner that verged on acquiescence to the court's instruction. 2

After the jury began deliberations, it submitted a note to the court containing several questions, including a request that the court clarify the legal definition of "intentional." The court gave the following supplemental charge on intent:

The government in this case is required to prove beyond a reasonable doubt that the defendant lied; that is to say, he intentionally deceived the Fire Department on the questionnaires to keep pension benefits or monies that he would not otherwise be entitled to. That's what this case is about, as you well know.... They must establish beyond a reasonable doubt each of the three elements of the crime I instructed you on this morning, the instructions for which are repeated in the written instructions that you now have.

... I hope that responds to your inquiry concerning "intentional." He must have intended to deceive[ ]. He must have lied to the Fire Department to keep pension monies that he would not otherwise have been entitled to. That's what the government must prove.

When asked whether this instruction was satisfactory, defense counsel responded affirmatively.

The jury returned a verdict of guilty. The court downwardly departed from Rossomando's Sentencing Guidelines range of 12 to 18 months' imprisonment--"[l]argely on the basis of [Rossomando's] otherwise law-abiding and responsible conduct, [and] the aberrational nature of this particular crime"--and sentenced Rossomando principally to six months' imprisonment followed by six months' home detention, as well as a three-year term of supervised release, including as a special condition restitution to the Pension Fund of the monies owed.

We were informed at oral argument, on March 6, 1998, that Rossomando had just begun to serve the term of imprisonment prescribed in his sentence. On March 11, 1998, we entered a summary order vacating the judgment of the district court, including any order of incarceration, and indicated that an opinion would follow in due course.

II.

The parties dispute the proper standard of review applicable to Rossomando's challenge to the court's jury instructions. Defense counsel did voice an objection to the court's initial charge, but his objection was somewhat muddled, leaving it a close question whether the objection was adequately raised. See Fed.R.Crim.P. 30 ("No party may assign as error any portion of the charge or omission therefrom unless that party objects thereto before the jury retires to consider its verdict, stating...

To continue reading

Request your trial
83 cases
  • United States v. Carpenter
    • United States
    • U.S. District Court — District of Connecticut
    • June 6, 2016
    ...a victim in controlling his or her own assets." United States v. Carlo, 507 F.3d 799, 802 (2d Cir.2007) ; see alsoUnited States v. Rossomando, 144 F.3d 197, 201 n. 5 (2d Cir.1998). The government can satisfy this element by proving that the defendant's scheme "den[ied] the victim the right ......
  • United States v. Ernst
    • United States
    • U.S. District Court — District of Massachusetts
    • November 23, 2020
    ...to make discretionary economic decisions." United States v. Binday, 804 F.3d 558, 570 (2d Cir. 2015) (citing United States v. Rossomando, 144 F.3d 197, 201 n.5 (2d Cir. 1998) ).6 However, as the Second Circuit recently emphasized in United States v. Finazzo, the right to control theory is n......
  • United States v. Larry Davis & DCM Erectors, Inc.
    • United States
    • U.S. District Court — Southern District of New York
    • August 3, 2017
    ...it of information necessary to make discretionary economic decisions.'" Binday, 804 F.3d at 570 (quoting United States v. Rossomando, 144 F.3d 197, 201 n.5 (2d Cir. 1998)). However, merely showing that a victim would not have entered into a discretionary economic transaction but for the def......
  • United States v. Watts
    • United States
    • U.S. District Court — Eastern District of New York
    • March 22, 2013
    ...line between a defendant's intent to cause “no harm” and “no ultimate harm,” as discussed by the Second Circuit in United States v. Rossomando, 144 F.3d 197 (2d Cir.1998), the issue of intent must be decided by the jury based on the trial evidence. ( Id.) Mr. Watts intends to present as evi......
  • Request a trial to view additional results
4 books & journal articles
  • Mail and wire fraud.
    • United States
    • American Criminal Law Review Vol. 42 No. 2, March 2005
    • March 22, 2005
    ...and thus had knowledge and intent necessary to sustain mail and wire fraud convictions). (88.) See United States v. Rossomando, 144 F.3d 197, 203 (2d Cir. 1998) (overturning conviction based on jury instruction suggesting defendant could be convicted absent showing of intent); United States......
  • Mail and wire fraud.
    • United States
    • American Criminal Law Review Vol. 43 No. 2, March 2006
    • March 22, 2006
    ...and thus had knowledge and intent necessary to sustain mail and wire fraud convictions). (61.) See United States v. Rossomando, 144 F.3d 197, 203 (2d Cir. 1998) (overturning conviction based on jury instruction suggesting defendant could be convicted absent showing of intent); United States......
  • Mail and wire fraud.
    • United States
    • American Criminal Law Review Vol. 44 No. 2, March 2007
    • March 22, 2007
    ...and thus had knowledge and intent necessary to sustain mall and wire fraud convictions). (61.) See United States v. Rossomando, 144 F.3d 197, 203 (2d Cir. 1998) (overturning conviction based on jury instruction suggesting defendant could be convicted absent showing of intent); United States......
  • Tax practice and the federal Criminal Code.
    • United States
    • The Tax Adviser Vol. 39 No. 4, April 2008
    • April 1, 2008
    ...out does not excuse fraudulent misrepresentations (Sand, Modern Federal Jury Instructions, Inst. 44-5, Comment). However, in Rossomando, 144 F3d 197 (2d Cir. 1998), a defendant received a disability pension, the amount of which depended in part on the outside income he earned. On several ye......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT