U.S. v. Larkin
| Decision Date | 08 February 1980 |
| Docket Number | No. 78-2124,78-2124 |
| Parties | 103 L.R.R.M. (BNA) 2584, 87 Lab.Cas. P 11,821 UNITED STATES of America, Plaintiff-Appellee, v. Thomas A. LARKIN, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
James M. Russ, I. Paul Mandelkern, Orlando, Fla., for defendant-appellant.
David B. Smith, Appellate Sec., Crim. Div., U. S. Dept. of Justice, Washington, D. C., for plaintiff-appellee.
Appeal from the United States District Court for the Middle District of Florida.
ON PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC
(Opinion November 5, 1979, 5 Cir., 1979, 605 F.2d 1360).
Before THORNBERRY, GOLDBERG and GEE, Circuit Judges.
The appellant's petition for rehearing is denied. The appellee's petition for rehearing is granted.
In our initial opinion, reported at 605 F.2d 1360, we held that Larkin could not be retried under count one for conspiring to embezzle union funds and falsify union records because his acquittal under counts two through seven precluded such a retrial. Rather belatedly, the Government has deigned to inform the court that Larkin's potential criminal liability for conspiring to embezzle union funds and falsify union records rests not only on the acts that form the premise of counts two through seven, but also on the acts that constitute the basis for counts eight through ten. After again carefully reviewing the massive record of this case, we conclude that the Government's argument is sound.
In counts two through seven the Government charged that Parker paid union funds to two union members, Johnson and Wright, for work not actually performed. Larkin was charged, and acquitted, of vicarious liability for the payment and hiding of these monies. In contrast, in counts eight through ten Larkin was charged with responsibility for the issuance of checks drawn against union funds for legal services not performed. Because the jury failed to reach a verdict on these counts, Larkin can be retried under them. As our initial opinion discussed, the jury's acquittal on counts two through seven precludes retrial of Larkin for conspiring to embezzle union funds and falsify union records in the manner alleged in counts two through seven. However, the jury's deadlock on counts eight through ten does not preclude retrial of Larkin for conspiring to embezzle union funds and falsify union records in the manner alleged in counts eight through ten. Accordingly, we withdraw the last two...
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