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UNITED STATES v. GOLE

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK


September 24, 1997

UNITED STATES OF AMERICA, against JOHN F. GOLE, Defendant.

The opinion of the court was delivered by: KORMAN

MEMORANDUM

 Korman, J.

 John F. Gole was convicted of one count of mail fraud, 18 U.S.C. § 1341, after a jury trial. This was a classic mail fraud case in which the defendant conceded all of the essential elements of the offense. The defense that was offered was essentially one which appealed to the power of the jury to nullify. The Second Circuit recently observed that "no juror has a right to engage in nullification" and that "trial courts have the duty to forestall or prevent such conduct." United States v. Thomas, 116 F.3d 606, 616 (2d Cir. 1997). The purpose of this memorandum is to place in context and to explain several rulings I made in the course of the trial that were made to prevent the defendant from achieving his goal.

 The facts are simple. Mr. Gole retired from the Fire Department on October 10, 1988, with the rank of Firefighter 1st Grade, after he was found by a review board to have a disabling back injury. He was granted a pension of a little over $ 30,000 per year. Under New York law, a disability pensioner is allowed to earn money by other gainful employment even though disabled from firefighting duties. If he does so, however, his pension is reduced by the amount that the pension combined with his outside earnings had exceeded the "current maximum salary for the title next higher than that held by him . . . when he . . . was retired" for a given year. N.Y.C. Admin. Code §§ 13-356 & 13-357 ("Safeguard Provisions").

 The Pension Bureau relies on annual reports of outside income by the pensioner in order to determine whether to reduce the pension for a particular year. Because the report of outside income is made after the pensioner has received his disability pension for that year, any amount earned over this "Safeguard Threshold" would be reimbursed to the City, through abatement of future pension payments, Tr. 185 (March 11, 1997), or by a negotiated schedule of repayments. Tr. 50, 75, 83 (March 10, 1997).

 The case here turns on the outside income reports Mr. Gole filed for the years 1991, 1993, 1994. Apparently due to some bureaucratic glitch, the Pension Bureau did not send Mr. Gole and others similarly situated the outside income reporting forms at the end of each of the subject calendar years. Instead, it sent the forms for those years in early 1995. Mr. Gole concededly earned income as a steam fitter for those years. Mr. Gole knew that the amounts he actually earned, when combined with his pension, exceeded substantially what the Pension Bureau regarded as the "current maximum salary for the title next higher than that held by him . . . when he . . . was retired," which was Lieutenant. But Mr. Gole held a different view of the maximum he was entitled to earn prior to triggering the Safeguard repayment obligation. Specifically, he claimed that he was entitled to outside earned income which, when combined with his pension, equaled the total earnings of the highest-paid Lieutenant in the Fire Department. This amount would vary from year to year because it includes not only the base salary but the overtime earned by that Lieutenant. *fn1"

 Under his interpretation of the Safeguard Provisions, Mr. Gole's earned income was within permissible bounds and would not have triggered a retrospective recalculation of his pension benefits for the years in question. Because Mr. Gole was aware that the Pension Bureau did not accept this interpretation, he knew that filing truthful financial disclosure forms would have caused a recalculation, and that the only way to avoid this would have been litigation. Such litigation was a "hassle" that he wished to avoid. Accordingly, he deliberately filed false reports for the years 1991, 1993, and 1994 that understated his outside income by amounts that would bring his total income, outside plus pension, below the Pension Bureau's calculation of the Safeguard Threshold under the New York City Administrative Code. Specifically, the figures for actual and reported income were as follows: Actual Income Reported 1991 $ 33,146.00 20,844.00 1993 52,791.00 23,866.00 1994 53,181.00 24,612.00

19970924

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