U.S. v. Abboud

• Decision Date: 17 October 2001
• Docket Number: 01-1277,Nos. 01-1276,s. 01-1276
• Parties: (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. Submitted:
• Court: U.S. Court of Appeals — Eighth Circuit

Page 763

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 FOR THE EIGHTH CIRCUIT

Submitted: October 17, 2001

Filed: December 7, 2001

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

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 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 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, 674 F.2d 677, 678-80 (8 th Cir.) (en banc) (per curiam), cert. denied, 459 U.S. 829 (1982). Under Grabinski an order denying a motion to dismiss for double jeopardy is appealable "only if a colorable claim is made." Id. at 678. In the absence of a colorable claim of double jeopardy, the appeal must be dismissed for lack of jurisdiction. Id. at 679- 80. A colorable claim requires a showing of previous jeopardy and the threat of repeated jeopardy. Id. at 679.

The Fifth Amendment assures that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb." U.S. Const. amend. V. The clause provides three separate protections for criminal defendants: protection against a second prosecution for the same offense after acquittal, protection against prosecution for the same offense after conviction, and protection against multiple punishments for the same offense. Ohio v. Johnson, 467 U.S. 493, 498-99 (1984) (citations omitted). The clause also prohibits government from dividing a single criminal conspiracy into multiple conspiracy convictions. See Braverman v. United States, 317 U.S. 49, 52-53 (1942); United States v. Bennett, 44 F.3d 1364, 1369 (8 th Cir. 1995). The alleged agreement itself is the prohibited conduct targeted by the conspiracy statute, and there is only one offense where there is only one agreement. See 317 U.S. at 54; 44 F.3d at 1369.

In this case the Abbouds base their double jeopardy claim on the protection against multiple punishments for the same offense. The Abbouds claim that the conspiracy count in the Nebraska indictment is a second prosecution for the same offense for which they were punished in Georgia. The Abbouds were never convicted of the conspiracy charges in the Georgia case because those charges were dismissed as part of the plea agreement. They contend, however, that the punishment for their convictions of assisting the unauthorized reception of cable services incorporated the dismissed conspiracy offenses as relevant conduct, leading to $1,000,000 in fines and substantial property forfeitures.

Relevant conduct which has been considered in a prior sentencing can be a basis for subsequent prosecution without violating the double jeopardy clause so long as the earlier sentence was within the statutory or legislatively authorized punishment range. Witte v. United States, 515 U.S. 389, 397, 406 (1995) ("[C]onsideration of relevant conduct in determining a defendant's sentence within the legislatively authorized punishment range does not constitute punishment for that conduct..."). The sentences imposed on the Abbouds were within the statutorily authorized sentences ranges.

At the sentencing hearing the government stipulated that the amount of fraud was $39,569.77, an amount corresponding to the estimated sale of converted cable boxes in Georgia. The district court adopted the stipulated amount of fraud in calculating the Abbouds' guidelines.³ That amount of fraud made their offense level ten which, combined with their criminal history, resulted in a 6-12 month guidelines range. See United States Sentencing Commission, Guidelines Manual, §2B5.3(b)(1) (Nov. 1995) and the table at §2F1.1(b)(1)(E). This sentence placed them within Zone B of the guidelines where imprisonment is not mandatory, see USSG §§5B1.1, 5C1.1, and enabled the court to impose sentences of six months home confinement and five years probation. This was a favorable result for the Abbouds,⁴ and it was not one which might be expected for a wide ranging conspiracy such as that charged in the current case. Their fines ($950,000 for Joseph and $50,000 for Gene) were also within the statutory ranges for convictions involving two Class A misdemeanors and three Class E felonies. See 18 U.S.C. § § 3571(b)(3), (5) (2000); USSG §5E1.2, comment. (n.2) (Nov. 1995).

Since the Abbouds were sentenced in Georgia within the legislatively authorized punishment range for their convictions for assisting unauthorized reception of cable television services, their contention that they were punished for the dismissed conspiracy charges collapses. As the Supreme Court held in Witte, "[W]here the legislature has authorized such a particular punishment range for a given crime, the resulting sentence within that range constitutes punishment only for the offense of conviction for purposes of the double jeopardy inquiry." 515 U.S. at 403- 04 (emphasis added). Under Witte, the Abbouds were sentenced in Georgia only for assisting in the unauthorized reception of cable services, in violation of 47 U.S.C. § 553(a), and their multiple punishment theory does not raise a colorable claim of double jeopardy.

III.

A focus on whether more than one conspiracy was charged in the two indictments also shows that the Abbouds have no colorable claim of double jeopardy. A "totality of the circumstances" test is used to determine whether there is more than one conspiracy and it involves consideration of such factors as (1) the time period involved; (2) the individuals charged as coconspirators; (3) the offenses charged; (4) the overt acts charged or any other description of the offenses charged which indicate the nature and scope of the activity sought to be punished; and (5) the places where the alleged conspiratorial acts took place. United States v. Thomas, 759 F.2d 659, 662 (8 th Cir. 1985).

The conduct charged as conspiracies in the two indictments under review here had some overlap in time. The Georgia conspiracy was alleged to have taken place between August 1992 and February 1993. The conspiracy in this Nebraska case is alleged to have begun in 1989 and to have continued through December 1998. Even...