United States v. Frank C. Marolda

I

Marolda was convicted after trial by jury of embezzling from a labor union, 29 U.S.C. § 501 (c). On his first appeal, he argued that: (1) the definition of the offense in instructions to the jury excluded statutory elements; (2) there was a prejudicial variance between the offense as set forth in the indictment and as defined in the instructions; and (3) the evidence was insufficient to support a conviction.

We reversed, addressing only the second issue:

United States v. Marolda, 615 F.2d 867, 870 (9th Cir. 1980).

One element found in the indictment and omitted from the instructions was that Marolda used a gasoline credit card “without benefit to [the Union].” Id. at 868 n.2. Our opinion made no mention of Marolda’s sufficiency of the evidence argument.

When the case returned to district court, Marolda moved to dismiss on double jeopardy grounds, contending there had been insufficient evidence to prove an absence of union benefit. The court denied the motion for two reasons. First, it held that, because the conviction had been reversed for . trial error but not for evidentiary insufficiency, retrial would not subject Marolda to double jeopardy. Second, there had been…