United States of America, Plaintiff-appellee, v. John H. Thomas and Jon-t Farms, Inc., a Corporation,defendants-appellants.united States of America, Plaintiff-appellee, v. John H. Thomas, A/k/a J. H. Thomas, Defendant-appellant, 604 F.2d 450 (5th Cir. 1979)Annotate this Case
Nov. 14, 1979
Appeals from the United States District Court for the Northern District of Texas, Halbert O. Woodward, Chief Judge.
Travis D. Shelton, Lubbock, Tex., Michael E. Tigar, John J. Privitera, Washington, D. C., for defendants-appellants.
Bob D. Slough, Asst. U. S. Atty., Lubbock, Tex., for the U. S.
ON PETITION FOR REHEARING
(Opinion April 19, 1979, 5 Cir. 1979, 593 F.2d 615).
Before GEE and VANCE, Circuit Judges, and HUNTER,** District Judge.
On rehearing, among other contentions, appellants press upon us the existence of possible collateral consequences deriving from the conversion counts, urging that these render inappropriate our disposition of those counts under the concurrent sentence doctrine. Assuming without deciding the presence of such consequences, we have reviewed appellants challenges to the convictions on the conversion counts and find them without merit except as to Count 92, the Blackstock count. As to that count, we conclude that the evidence does not support the conviction. To this extent, we therefore grant rehearing and reverse the conviction on Count 92.
The same considerations require that the cause be remanded as to the conversion counts for consideration by the court below of whether the addition of these counts, or any of them, was motivated by actual prosecutorial vindictiveness. To this extent as well rehearing is granted. In all other respects, it is denied.
No member of this panel nor 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; Local Fifth Circuit Rule 12) the Petition for Rehearing En Banc is denied.
AFFIRMED IN PART AND REVERSED AND REMANDED IN PART IN NO. 78-5249.
UNITED STATES v. THOMAS
District Judge of the Western District of Louisiana, sitting by designation