United States v. Frank C. Marolda

Frank C. Marolda appeals his conviction for embezzling from a labor union, 29 U.S.C. § 501 (c). The principal points on appeal concern the instructions to the jury. Because of error in the instructions, the judgment is reversed.

The International Union of Hotel and Restaurant Employees decided, for economic reasons, to merge two of its locals, and on October 1, 1975, the newly merged Local 19 was formed. The International installed Marolda as Local 19’s chief executive officer. At its first meeting, the Executive Board of the new local adopted an automobile expense allowance which provided $300 (raised a year later to $400) a month to officers and staff of the local who used their own cars for union business. The Board apparently also agreed at this meeting to terminate the practice of charging purchases on oil pompany credit cards that had been issued for union business. Marolda, however, continued to use his oil company credit card while also receiving the monthly auto allowance. In October 1977, when one of the Board members complained of Marolda’s continued use of a credit card, Marolda surrendered the card. The indictment and conviction for embezzling were based on Marolda’s…

(concurring):

With a degree of reluctance I join with the majority in finding that the defendant was prejudiced by the variance between the indictment and the jury instructions. My hesitance stems from doubts that the defendant has suffered any real prejudice, and from a belief that defendant contributed to this problem. His attorney submitted requested jury instructions which were largely adopted by the trial court. Despite these misgivings, I find the majority opinion persuasive.

What may be equally important here is for the Court to clearly establish the elements of this crime to prevent future confusion, Careful review of the legislative history 1 of § 501(c) convinces me that neither lack of authorization nor lack of union benefit are necessary elements of this crime.- Congress was merely transmuting common law theft crimes involving union funds and committed by union officers or employees into Federal crimes. The purpose in doing this was to provide an additional forum for prosecution of these crimes.

*873 I am not certain why courts began to add new elements to § 501(c) crimes. There is some suggestion that this stemmed from the language of § 501(a), which places…

615 F.2d 867 104 L.R.R.M. (BNA) 2595 , 88 Lab.Cas. P 12,069 UNITED STATES of America, Plaintiff-Appellee, v. Frank C. MAROLDA, Defendant-Appellant. No. 78-3752. United States Court of Appeals, Ninth Circuit. March 26, 1980. Allen J. Ruby, Morgan, Ruby, Teter, Schofield, Franich, Bourchier & Fredkin, San Jose, Cal., for defendant-appellant. Gerald J. Hinckley, Asst. U. S. Atty., San Francisco, Cal., for plaintiff-appellee. Appeal from the United States District Court for the Northern District of California. Before TRASK and GOODWIN, Circuit Judges, and LARSON * , District Judge. GOODWIN, Circuit Judge: 1 Frank C. Marolda appeals his conviction for embezzling from a labor union, 29 U.S.C. § 501 (c). The principal points on appeal concern the instructions to the jury. Because of error in the instructions, the judgment is reversed. 2 The International Union of Hotel and Restaurant Employees decided, for economic reasons, to merge two of its locals, and on October 1, 1975, the newly merged Local 19 was formed. The International installed Marolda as Local 19's chief executive officer. At its first meeting, the Executive Board of the new local adopted an automobile expense…