United States v. Rossomando

United States v. Rossomando

Opinion

 [*198]  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,  [**2]  Judge), convicting him of one count of mail fraud under 18 U.S.C. § 1341. ² 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.

 [**3]  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 [**4]  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.

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