U.S. v. Annabi, 85-1289
| Decision Date | 15 August 1985 |
| Docket Number | No. 85-1289,85-1289 |
| Citation | 771 F.2d 670 |
| Parties | UNITED STATES of America, Appellee, v. Sami ANNABI and Nedam Annabi, Defendants-Appellants. . Heard |
| Court | U.S. Court of Appeals — Second Circuit |
Ivan S. Fisher, New York City (Fisher & Ely, New York City, on brief), for defendants-appellants.
Richard Stanley, Asst. U.S. Atty., New York City (Rudolph W. Giuliani, U.S. Atty., Stuart E. Abrams, Asst. U.S. Atty., New York City, on brief), for appellee.
Before NEWMAN and WINTER, Circuit Judges, and HOLDEN, District Judge. *
This is an interlocutory appeal from an order of the District Court for the Southern District of New York (John E. Sprizzo, Judge) denying a motion to dismiss pending criminal charges because of an alleged violation of a plea agreement concluded in the Eastern District of New York. Because Judge Sprizzo properly determined that the Eastern District plea agreement did not preclude a prosecution in the Southern District, we affirm.
The pending Southern District indictment includes two counts charging defendants-appellants Sami and Nedam Annabi with narcotics offenses. Count One charges both Annabis and others with conspiracy to distribute heroin in violation of 21 U.S.C. Sec. 846 (1982). Count Three charges Sami with engaging in a continuing criminal enterprise in violation of 21 U.S.C. Sec. 848 (1982). 1 Both counts allege criminal conduct occurring from October 1982 until the date of the indictment, March 15, 1985.
The prior Eastern District charges were contained in a three-count indictment filed December 16, 1982. Both Annabis were charged in Count One with conspiracy to import heroin into the United States on or about November 23, 1982, in violation of 21 U.S.C. Sec. 963 (1982), in Count Two with the substantive offense of importing heroin on that date, in violation of 21 U.S.C. Sec. 952(a) (1982), and in Count Three with possession of heroin on that date with intent to distribute, in violation of 21 U.S.C. Sec. 841(a)(1) (1982). All three charges arose out of the arrest of the Annabis at Kennedy Airport on November 23, 1982, after their arrival from the Middle East in possession of four kilograms of heroin. This episode is listed as one of the overt acts in support of Count One (conspiracy to distribute) of the pending Southern District indictment and as one of predicate acts in support of Count Three (continuing criminal enterprise) of that indictment.
On February 4, 1983, after plea discussions with the United States Attorney's office for the Eastern District, both Annabis pled guilty to Count Two, the substantive importation charge. At the time of the plea, the prosecutor stated on the record that "the only agreement that exists between the defendants and the Government is that at the time of the imposition of sentence on Count Two, the Government would move to dismiss the two open remaining counts as to each defendant." The judgments for each defendant reflect that on motion of the Assistant United States Attorney, Counts One and Three were dismissed.
On the motion to dismiss the pending Southern District indictment, Judge Sprizzo heard testimony from the prosecutor of the 1982 Eastern District charges, a supervising prosecutor from the Eastern District, Sami Annabi, and the lawyer who represented Sami in connection with the 1982 Eastern District charges. Judge Sprizzo found that the plea agreement placed on the record at the time the Annabis entered guilty pleas to Count Two of the Eastern District indictment constituted the entire agreement between the prosecution and the defendants and that there was no agreement concerning prosecution of the Annabis in the Southern District of New York. Applying applicable law, the District Judge concluded that the Eastern District agreement did not insulate the Annabis from prosecution in the Southern District and therefore denied the motion to dismiss.
Since the Annabis were never in jeopardy with respect to the dismissed counts of the Eastern District indictment, see United States v. Von Barta, 635 F.2d 999, 1004 (2d Cir.1980), cert. denied, 450 U.S. 998, 101 S.Ct. 1703, 68 L.Ed.2d 199 (1981), their appeal rests on their claim that the pending Southern District indictment violates the protection they allege they secured by virtue of the 1982 plea agreement in the Eastern District. Though that issue may be raised on an interlocutory appeal, see United States v. Abbamonte, 759 F.2d 1065, 1070-71 (2d Cir.1985), it is without merit.
As an original proposition, a plea agreement whereby a federal prosecutor agrees that "the Government" will dismiss counts of an indictment other than the ones to which guilty pleas are entered might be thought to bar the United States from...
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