273 F.3d 763 (8th Cir. 2001), 01-1276, United States v Abboud

Docket Nº:01-1276, 01-1277
Citation:273 F.3d 763
Party Name:UNITED STATES OF AMERICA, PLAINTIFF - APPELLEE, v. JOSEPH ABBOUD, DEFENDANT - APPELLANT. UNITED STATES OF AMERICA, PLAINTIFF - APPELLEE, v. GENE ABBOUD; G&A DISTRIBUTING, INC., DOING BUSINESS AS BROADWAY ENTERPRISES, DEFENDANTS - APPELLANTS.
Case Date:December 07, 2001
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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273 F.3d 763 (8th Cir. 2001)

UNITED STATES OF AMERICA, PLAINTIFF - APPELLEE,

v.

JOSEPH ABBOUD, DEFENDANT - APPELLANT.

UNITED STATES OF AMERICA, PLAINTIFF - APPELLEE,

v.

GENE ABBOUD; G&A DISTRIBUTING, INC., DOING BUSINESS AS BROADWAY ENTERPRISES, DEFENDANTS - APPELLANTS.

Nos. 01-1276, 01-1277

United States Court of Appeals, Eighth Circuit

December 7, 2001

Submitted: October 17, 2001

Appeals from the United States No. 01-1277 District Court for the District of Nebraska.

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Before Wollman, Chief Judge, Murphy and Riley, Circuit Judges.

Murphy, Circuit Judge

In these interlocutory appeals Joseph and Gene Abboud claim that their prosecution for conspiracy (to commit mail fraud, wire fraud and to assist in the unauthorized reception of cable television services) is barred by double jeopardy because of their sentencing on earlier convictions in

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Georgia for unauthorized reception of cable television services. The district court1 denied their motion to dismiss, and they appeal. We dismiss the appeals for lack of jurisdiction.

I.

In February 1996, Joseph Abboud, his father Gene Abboud, United Imports Corp., a.k.a. M.D. Electronics (M.D.) and G&A Distribuiting, Inc. (G&A) were indicted in the Northern District of Georgia on twelve counts of wire fraud (18 U.S.C. § 1343), five counts of unauthorized interception and reception of cable services (47 U.S.C. § 553(a)), four counts of money laundering (18 U.S.C. § 1957), forfeiture (18 U.S.C. § 982), and conspiracy (18 U.S.C. § 371). The indictment alleged that between August 1992 and February 1993, Gene Abboud and G&A had arranged for purchases of cable boxes and descramblers using interstate wire communications with the objective of making retail sales of electronic equipment for the unauthorized interception of electronic communications. Joseph Abboud and M.D. were charged with modifying the cable boxes and descramblers sold to them by Gene Abboud and G&A, so that the equipment could receive unauthorized cable signals. Joseph Abboud and M.D. then sold the illegally modified boxes and descramblers to retail customers through a toll free telephone number.

On September 30, 1996, the Abbouds each pled guilty to five counts of assisting in the unauthorized reception of cable television services, all in violation of 47 U.S.C. § 553(a). The conspiracy alleged in Count 13 was to be dismissed as part of their plea agreement. At the plea hearing, the district court2 asked the Abbouds whether they understood that they were obligated to reveal any side agreements not included in the written plea agreement. They said they understood that obligation, and they did not indicate that there were any other agreements with the government.

In April, 1997, the Abbouds were both sentenced to six months of home confinement and five years of probation. Fines were also imposed ($950,000 on Joseph and $50,000 on Gene), and the defendants agreed to forfeit substantial amounts of property. A prosecutor stated at the sentencing hearing that the Abbouds might face future charges growing out of ongoing criminal investigations in New Jersey.

In November 1999, the Abbouds and others were charged in a superseding indictment in the District of Nebraska with multiple criminal violations relating to cable television piracy operations conducted from 1989 through 1998. Count 1 charged the Abbouds with conspiracy under 18 U.S.C. § 371, to commit mail fraud and wire fraud and to assist in the unauthorized reception of cable television services (in violation of 18 U.S.C. §§ 1341, 1343 and 47 U.S.C. § 553(a), respectively).

The Abbouds moved to dismiss the conspiracy charges on the basis of double jeopardy. Joseph Abboud also claimed that the money laundering counts violated terms of the Georgia plea agreement. The district court denied the motions, and the Abbouds filed these interlocutory appeals arguing that the conspiracy charges are barred by double jeopardy. The Abbouds also moved for a special finding and stay pending appeal. The district court granted the motions and determined that the

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double jeopardy grounds for their appeals were non-frivolous.

II.

The government contends that this court lacks jurisdiction to reach the Abbouds' double jeopardy claim, citing United States v. Grabinski...

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