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UNITED STATES v. MAROLDA

No. 80-1641.

648 F.2d 623 (1981)

UNITED STATES of America, Plaintiff-Appellee, v. Frank C. MAROLDA, Defendant-Appellant.

United States Court of Appeals, Ninth Circuit.

Decided June 15, 1981.

Attorney(s) appearing for the Case

Allen Ruby, Morgan, Ruby, Teter, Schofield, Franich, Bouchier & Fredkin, San Jose, Cal., for defendant-appellant.

Peter D. Isakoff, Atty., Dept. of Justice, Washington, D. C., argued for plaintiff-appellee; William C. Bryson, Atty., Dept. of Justice, Washington, D. C., on brief.

Before WRIGHT and CANBY, Circuit Judges, and TAKASUGI, District Judge.

EUGENE A. WRIGHT, Circuit Judge:

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.

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