United States v. Gosser

• Decision Date: 08 December 1964
• Docket Number: No. 15415-15417.,15415-15417.
• Citation: 339 F.2d 102
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Richard T. GOSSER, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Donald J. PINCIOTTI, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Ted MAISON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

339 F.2d 102 (1964)

UNITED STATES of America, Plaintiff-Appellee, v. Richard T. GOSSER, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Donald J. PINCIOTTI, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Ted MAISON, Defendant-Appellant.

Nos. 15415-15417.

United States Court of Appeals Sixth Circuit.

December 8, 1964.

COPYRIGHT MATERIAL OMITTED

Merritt W. Green, Toledo, Ohio, and Fred H. Mandel, Cleveland, Ohio, for appellant Gosser.

Henry C. Lavine, Cleveland, Ohio, for appellant Pinciotti.

Marcus L. Friedman, Toledo, Ohio, for appellant Maison.

William S. Lynch, Department of Justice, Washington, D. C., and John G. Mattimoe, Asst. U. S. Atty., Toledo, Ohio, Merle M. McCurdy, U. S. Atty., Cleveland, Ohio, on brief, Jacob B. Tanzer, Department of Justice, Washington, D. C., of counsel, for appellee.

Jack Gallon, Gerald B. Lackey, Robert Z. Kaplan, Allan J. Chabler, Toledo, Ohio, amici curiae, Toledo & Northwestern Ohio Civil Liberties Union.

Before MILLER, O'SULLIVAN and PHILLIPS, Circuit Judges.

SHACKELFORD MILLER, Jr., Circuit Judge.

The defendants-appellants, Richard T. Gosser, Donald J. Pinciotti, and Ted Maison, were indicted for conspiring during the period of October 5, 1962, through November 12, 1962, to defraud the United States, in violation of Section 371, Title 18 United States Code. The indictment specifically charged that the defendants, together with Mrs. Patricia Niedomski, who was an employee of the United States, assigned to the Intelligence Division of the Internal Revenue Service, and who had access to the confidential files of said Intelligence Division, conspired that Mrs. Niedomski would make available to the defendants certain documents and transcriptions thereof, surreptitiously taken by her from the files of the Internal Revenue Service, pertaining to the investigation by said Service of the income tax returns of the defendant Gosser. Mrs. Niedomski was named as a conspirator but was not made a defendant. Following a trial of approximately 9 days, the jury returned a verdict of guilty against each defendant. Each defendant received a sentence of three years. These separate appeals followed, which have been heard together. In view of the strong reliance by the appellants Gosser and Pinciotti upon the defense of entrapment, we will state the evidence in some detail.

The Government's evidence showed the following. Patricia Niedomski was an employee in the Toledo, Ohio, office of the Internal Revenue Service, Intelligence Division. The defendant Ted Maison, who was married to her first cousin, was in the numbers business. The defendant Gosser was the senior International Vice President of the United Automobile Workers of America, AFL-CIO. The defendant Pinciotti was an employee of the International Union of the United Automobile Workers of America, and by assignment of the International Union was an Administrative Assistant to Gosser.

The Internal Revenue Service had some time prior to October 1962 instituted an inquiry and investigation of the income tax returns of Gosser for the years 1956, 1957, and 1958. These claims were subsequently settled without fraud penalties.

On October 19, 1962, an agent of the Toledo Treasury Intelligence Office noticed that Mrs. Niedomski was engaged in typing from reports which were not in her particular area of responsibility. From October 22 through November 1 Mrs. Niedomski was from time to time under surveillance by various government agents. On November 2 she was questioned by three agents and accused of giving Maison information from the files of the Intelligence Division. After extended questioning she finally admitted that she had been furnishing Maison with such information. Thereupon, the agents accompanied Mrs. Niedomski to her home, where they recovered two stenographic notebooks and six other documents, including copies of four sensitive case reports relating to a Treasury Intelligence investigation which had been conducted on Gosser for the years 1956, 1957, and 1958.

Mrs. Niedomski testified that during June or July 1962 she furnished Maison with a copy of some information taken by her without authority from the government files, the exact nature of which she did not remember; that about the end of September 1962 she gave Maison a copy of a memorandum relating to gambling at the Willys Overland plant in Toledo, which involved Maison's brother, which she had copied without authority; then on October 5, 1962, she met Maison at a bowling alley where he handed her an envelope containing $50.00, which was for the memorandum which she had given him regarding gambling activities at the Willys Overland plant; that at that time Maison asked her if she would like to make some extra money, and when she asked him in what way, Maison said "getting information on the Richard T. Gosser case"; that a little later in the evening when she was leaving, Maison began to converse with her about Gosser and Pinciotti and said that the papers he wanted her to get was "any information at all relating to the Richard T. Gosser case" and that Gosser "would be interested to know who the informant was"; that on October 12, 1962, she again saw Maison at the Elm Recreation Bowling Alley, conversed with him and gave him some papers, the nature of which she did not recall; told him that she had typed a final report on the Richard T. Gosser case, that Maison asked her to get him a copy of it, and that she told him she would; that on the evening of October 19, 1962, she met Maison again and gave him a copy of a memorandum relating to Mr. Gross, which was in connection with the Richard T. Gosser case; that at that time Maison gave her $50.00 and asked her to get him a copy of the final report, and that she told him she wouldn't be able to; that she next saw Maison on October 26, 1962, at the Elm Recreation Bowling Alley, at which time she gave him a copy of the reports on the Richard T. Gosser case, that Maison slipped some currency in her purse, which amounted to $50.00; that on October 22 Maison called her and gave her some names to check on; that on October 29, 1962, Maison called her and gave her some additional names to check on, and told her "they were very well pleased with the information."

Two government agents also testified that they observed the meeting between Mrs. Niedomski and Maison on October 26 and saw her give certain papers to him while they were seated together at the bar. This was during the time Mrs. Niedomski was under surveillance beginning October 22. Mrs. Niedomski's testimony about these meetings with Maison was not contradicted by him, who did not take the witness stand. Mrs. Niedomski did not know either Gosser or Pinciotti.

Despite the mandatory provisions of Section 7214, Title 26 United States Code, requiring the discharge of a government employee who discloses such information, Mrs. Niedomski was not discharged. She returned to work on Monday, November 5, and attended to her regular duties except for an hour or so each day spent in conference with government inspectors. At these meetings plans were made for her to arrange a meeting with Maison for the following Friday, November 9. On November 8 she phoned Maison, asked him if he was going to be bowling Friday night, and upon his saying that he was, she told him "I'll see you then."

At about 9:15 P.M. on the evening of November 9 Mrs. Niedomski came to the Federal Building parking lot where she met two government agents and two girls, who searched her person and made inventory of the contents of her purse. There was a wallet in it which contained $63.00. One of the government agents handed her some documents which she read and put in her purse. These were copies of the reports relating to the Richard Gosser case which had been found in her home. They had been dusted with fluorescent material, some of which was also inside the envelope in which the documents were placed. Mrs. Niedomski drove to the Elm Recreation Bowling Alley, followed by the agents. She watched Maison bowl for a while. After he finished bowling he came out to the bar and sat next to her, at which time she gave him the documents. He read them and put them in his pocket. She told him to please be careful and that she had to know what was going to happen to this information. Maison said he would call Pinciotti Sunday evening and tell him to meet him for a cup of coffee. She asked him what time they were going to meet. He told her Monday morning at 9:30 at the International Pancake House. Maison put $50.00 in her purse which was later turned over to a government agent. Mrs. Niedomski left the bowling alley at 11:15 P.M. and returned to the Federal Building parking lot where her person and the contents of her purse were again searched and she made an affidavit as to the occurrences that evening. Her wallet contained $61.00 and there was $50.00 in loose money in her purse. No papers were found in her purse.

At approximately 9 A.M. on November 12 Maison entered the Pancake House in Toledo, where shortly thereafter he was joined at the table by Pinciotti. Maison handed Pinciotti a large, white letter-size envelope which he withdrew from his pocket. Pinciotti withdrew the documents from the envelope and looked at them very carefully, turning the pages, for approximately ten minutes. He then placed them in his pocket and left the Pancake House. These acts were observed by two government agents who were seated nearby in the Pancake House. A government employee who had made the copies of the documents in question was seated approximately ten feet away and recognized the documents as the copies she had made by reason of the format of the papers and the fact that some of the columns under the forms filed were out of line.

After leaving the Pancake House Pinciotti went to the United Automobile Workers' Health and Retiree Center near the center of downtown Toledo where Gosser...