801 F2d 378 United States v. Rosenthal

801 F.2d 378

UNITED STATES of America, Plaintiff-Appellee,
Harold Joseph ROSENTHAL, Philip Anthony Bonadonna, Robert
Edward Dunleavy, Jr., George Lombardi, Garland
Hubert Watson, Larry Roger Stewart,
Joseph Vincent Junker,
UNITED STATES of America, Plaintiff-Appellee,
Rose Marie JUNKER, Defendant-Appellant.
UNITED STATES of America, Plaintiff-Appellant,
Dennis Wayne WILSON, Defendant-Appellee.

Nos. 84-8969, 85-8108 and 85-8217.

United States Court of Appeals,
Eleventh Circuit.

Sept. 18, 1986.

Craig Gillen, Atlanta, Ga., Asst. U.S. Atty., for U.S.

R.C. Cougill, Lilburn, Ga., (Court Appointed), for Rosenthal.

Arthur W. Tifford, Miami, Fla., for Dunleavy.

Frank J. Petrella, Atlanta, Ga., for Lombardi & Bonadonna.

William T. Payne, Atlanta, Ga. (Court Appointed), for Watson.

Gil Howard, Atlanta, Ga. (Court Appointed), for Joseph V. Junker.

Bruce S. Harvey, Atlanta, Ga., for Stewart.

Howard J. Manchel, Atlanta, Ga. (Court Appointed), for Rose Marie Junker.

Paul Kehir, Snellville, Ga. (Court Appointed), for Wilson.

Appeals from the United States District Court for the Northern District of Georgia.

Before GODBOLD and VANCE, Circuit Judges, and THOMAS*, Senior District Judge.

THOMAS, Senior District Judge:


In our opinion United States v. Rosenthal, 793 F.2d 1214 (11th Cir.1986), Appellant Harold Rosenthal's conviction on Count Thirteen, conspiracy to import cocaine in violation of 21 U.S.C. Sec. 963, was vacated due to said offense merging with his Sec. 848 conviction and sentence.

In his motion for modification of opinion, Appellant Bonadonna argues that his conviction for the same offense should be vacated in light of Bonadonna's adoption of the arguments asserted by his co-appellants. An examination of the record discloses that Bonadonna, with respect to his Sec. 963 conviction, is in the same posture as Rosenthal. Accordingly, Bonadonna's conviction and sentence under Count Thirteen must be, and hereby is, VACATED. United States v. Harrington, 761 F.2d 1482 (11th Cir.1985).


Before GODBOLD, and VANCE, Circuit Judges, and THOMAS*, Senior District Judge.



Petitions for rehearing filed by Joseph Vincent Junker, George Lombardi, and Harold Joseph Rosenthal are DENIED. The petition for rehearing filed by Philip Anthony Bonadonna, except to the extent previously granted is DENIED. No member of this panel nor other judge in regular active service on the court having requested that the court be polled on rehearing en banc (Rule 35, Federal Rules of Appellate Procedure; Eleventh Circuit Rule 26), the suggestions for rehearing en banc filed by George Lombardi, Philip Anthony Bonadonna, Harold Joseph Rosenthal and Rose Marie Junker, are DENIED.


Honorable Daniel H. Thomas, Senior U.S. District Judge for the Southern District of Alabama, sitting by designation