U.S. v. Rosenthal

• Citation: 793 F.2d 1214
• Decision Date: 18 July 1986
• Docket Number: 85-8108 and 85-8217,Nos. 84-8969,s. 84-8969
• Parties: 21 Fed. R. Evid. Serv. 264 UNITED STATES of America, Plaintiff-Appellee, v. Harold Joseph ROSENTHAL, Philip Anthony Bonadonna, Robert Edward Dunleavy, Jr., George Lombardi, Garland Hubert Watson, Larry Roger Stewart, Joseph Vincent Junker, Defendants-Appellants. UNITED STATES of America, Plaintiff-Appellee, v. Rose Marie JUNKER, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellant, v. Dennis Wayne WILSON, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 1214

793 F.2d 1214

21 Fed. R. Evid. Serv. 264

UNITED STATES of America, Plaintiff-Appellee, v. Harold Joseph ROSENTHAL, Philip Anthony Bonadonna, Robert

Edward Dunleavy, Jr., George Lombardi, Garland

Hubert Watson, Larry Roger Stewart,

Joseph Vincent Junker,

Defendants-Appellants.

UNITED STATES of America, Plaintiff-Appellee, v. Rose Marie JUNKER, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellant, v. Dennis Wayne WILSON, Defendant-Appellee.

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

United States Court of Appeals Eleventh Circuit.

July 18, 1986.

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

R.C. Cougill, Lilburn, Ga. (court-appointed), for Rosenthal.

Steven H. Sadow, Atlanta, Ga., for Bonadonna.

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

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

William T. Payne, Atlanta, Ga. (court-appointed), for Watson.

Gil Howard, Atlanta, Ga. (court-appointed), for Joseph Junker.

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

Paul Kehir, Snellville, Ga. (court-appointed), for Wilson.

Howard J. Manchel, Atlanta, Ga. (court-appointed), for Rose Marie Junker.

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

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

DANIEL HOLCOMBE THOMAS, Senior District Judge:

I.

INTRODUCTION

This is a drug conspiracy case wherein appellants were charged with engaging in racketeering by conspiring to participate in a large scale organization to smuggle and distribute cocaine.

Appellants were members of a large cocaine smuggling operation referred to as "southern comfort". The federal grand jury for the Northern District of Georgia returned a fifty-five count indictment against thirty defendants. Of the thirty defendants seven were granted an interlocutory appeal severance ¹ and thirteen were either fugitives or entered guilty pleas, hence, only ten defendants went to trial. ² At the conclusion of the trial, eight defendants were convicted under various counts of the indictment, one was found not guilty and one was acquitted on motion. ³ Count One, in which eight appellants were charged and convicted, charged conspiracy to violate the Racketeer Influenced and Corrupt Organizations Act (RICO), in violation Eight appellants appeal here raising, collectively, twenty-one issues. ⁴ In addition, the government appeals from the trial court's ruling granting an acquittal in favor of Dennis Wayne Wilson. For clarity, we have separated the issues into the following categories: (1) sufficiency of the evidence; (2) pre-trial rulings; (3) trial rulings; (4) jury charges and post-verdict rulings; and (5) Wilson's acquittal.

of 18 U.S.C. Sec. 1962(d). Count Two is a RICO substantive count, 18 U.S.C. Sec. 1962(c) in which seven appellants were charged and five were convicted. Count Three, in which only appellant Rosenthal was charged and convicted and Count Four, in which only appellant Bonadonna was charged and convicted, charged engaging in a continuing criminal enterprise in violation of 21 U.S.C. Sec. 848. Counts Nine, Ten, Eleven, Twelve, Fourteen and Fifteen, in which seven appellants were charged and four were convicted, charge importation of cocaine in violation of 21 U.S.C. Sec. 963. Count Thirteen, in which four of the appellants were charged and three were convicted, charged conspiracy to import cocaine in violation of 21 U.S.C. Sec. 952. Counts Sixteen, Eighteen, Nineteen and Twenty, in which eight appellants were charged and six were convicted, charged possession of cocaine with intent to distribute in violation of 21 U.S.C. Sec. 841(a)(1). Counts Thirty-one, Thirty-six through Thirty-nine and Counts Forty-two, Forty-five, Forty-seven and Fifty, in which seven appellants were charged and five were convicted, charged interstate travel to carry on an unlawful activity in violation of 18 U.S.C. Sec. 1952(a)(3).

II.

THE FACTS

Only a brief overview of the facts are presented here; the facts most pertinent to each issue are discussed separately.

In September 1981, appellant, Harold Rosenthal, escaped from a federal correctional facility in Memphis, Tennessee. Thereafter, Rosenthal fled to Colombia, South America, where he organized a large cocaine smuggling operation. Because of the many facets of this network, we have divided the facts into the following phases: (1) The Tennessee phase; (2) the Crystal River and LaFayette phase; (3) the Paulding County, Georgia phase; (4) the Bahamas and Reading, Pennsylvania, phase; (5) Rosenthal's arrest; and (6) the post-arrest phase.

(1). The Tennessee Phase

During the first week in June 1982, 640 pounds of cocaine were flown from Colombia into the Rockwood, Tennessee airport. Appellant Garland Watson was to secure the airport and take the load to the "stash house". After distributing several kilograms of cocaine as payment to the pilots and ground crew, the cocaine was taken to Florida and sold for $370,000. Within the next two weeks, two additional loads of cocaine were flown into Rockwood, Tennessee and sold in Florida. A fourth load, consisting of over 1,000 pounds of cocaine arrived in July. After receiving a tip, the Drug Enforcement Administration (DEA) arrested all individuals transporting the cocaine.

(2). The Crystal River and LaFayette Phase

During the late summer of 1982, a plane was flown to Colombia to pick up a load of cocaine. The plane was loaded with fifteen or sixteen duffle bags of cocaine. The plane crashed on take-off and burned; the two passengers, however, escaped unharmed. In furtherance of the conspiracy another plane was purchased. Upon arrival in Colombia, the plane was loaded with fifteen duffle bags of cocaine and flown to Crystal River, Florida. Another load of 633 pounds of cocaine was flown to LaFayette,

Georgia. When the plane landed the F.B.I. arrested the passengers and several others.

(3). The Paulding County Phase

In September 1982, DEA Agent Thomas Thompson was introduced to Loy Shipp by the Paulding County Sheriff. Shipp agreed to cooperate with the government. He told Agent Thompson that he traveled to Medellin, Colombia, in July 1982, to meet with Rosenthal, and thereafter, Shipp said he received $50,000 as a down payment to purchase an aircraft.

On October 7, 1982, Shipp and Agent Thompson traveled to Fort Lauderdale, Florida where Shipp met with appellant Philip Bonadonna and Charles Alaimo. After the meeting Shipp delivered $120,000 to Agent Thompson. On October 13, 1982, Shipp and Agent Thompson acting undercover, met Bonadonna and Alaimo at the Atlanta airport. At this meeting, Bonadonna discussed the purchase of an aircraft and utilization of vehicles to transfer drugs to a stash house. Thereafter, $50,000 was delivered to Shipp and Agent Thompson. On October 19, 1982, Bonadonna and Alaimo delivered $250,000 to Shipp and Agent Thompson. Over the next two months over $450,000 was delivered to Thompson and Shipp. Appellant Robert Dunleavy delivered $40,000 to Agent Thompson in January. Finally, in February 1983, Michael Leonard, an undercover DEA agent, flew to Colombia with Shipp to pick up a load of cocaine. When they arrived in Colombia, several duffel bags of cocaine were placed on the aircraft. They flew from Colombia to Dobbins Air Force Base outside of Atlanta.

Approximately 755 pounds of cocaine was unloaded into a van which Agent Thompson drove to the stash house. Two days later, two white Chevrolet automobiles left the stash house. These vehicles had Florida license plates YD5860 and YD5861. The vehicles, under surveillance by DEA agents, traveled in a southerly direction toward Florida. One vehicle was driven by appellants Joseph and Rose Marie Junker, who were subsequently arrested in Pompano, Florida. The other car was seized and the driver was arrested in Tamaral, Florida. Approximately one-half of the 755 pounds of cocaine delivered to the stash house was in the Junker car.

(4). The Bahamas and Reading, Pennsylvania Phase

In the fall of 1982, Russell Zoellner, Jr. was recruited by his father, Russell Zoellner, Sr., to assist him in flying cocaine from Colombia to the Bahamas for Rosenthal. Zoellner, Jr. assisted his father in "plumbing" an aircraft to be used in the smuggling operation. Zoellner, Sr. had previously used appellant Larry Stewart to fly a load of cocaine for Rosenthal. Zoellner, Jr. saw his father give Stewart $7,500 for the previous trip.

This phase of the operation consisted of four loads of over 1800 pounds of cocaine flown into the Bahamas from Colombia.

In the Spring of 1983, Zoellner, Jr. and Stewart flew to Boca Raton, Florida, in order to purchase a 200 gallon bladder tank. They then flew to the Bahamas, refueled, and headed for Colombia. This trip was aborted, however, due to technical trouble with the plane.

In June 1983, appellant George Lombardi delivered $12,500 to Zoellner, Jr. to pay for Zoellner, Sr.'s flight school. Apparently, Rosenthal wanted Zoellner, Sr. to learn to fly one of the aircrafts for use in the smuggling operation. Thereafter, Rosenthal decided to purchase another aircraft and sent Lombardi and Dunleavy to deliver $75,000 to Zoellner, Jr. The Zoellners exchanged the aircraft previously used and paid $60,000 in cash for a Queen Aire N113T.

In late August 1983, the Zoellners flew the Queen Aire to Colombia where they met Rosenthal. The plane was loaded with 1000 pounds of cocaine. Although they were headed to Reading, Pennsylvania, strong winds forced them to land in Chattanooga, Tennessee. The cocaine was placed in a storage unit in Dalton, Georgia. The On September 12, 1983, Zoellner, Jr. flew to Miami, Florida, where Lombardi and Dunleavy gave him $175,000 to purchase a Super DC3 aircraft. Zoellner, Jr. purchased the Super DC3 in California for $160,000. The Zoellners flew the Super DC3 to Colombia on September 25, 1983. Approximately 500 pounds of cocaine was loaded on the Super DC3 and...