United States v. Joseph Abboud ( 2001 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 01-1276
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United States of America, *
*
Plaintiff - Appellee, *
*
v. *
*
Joseph Abboud, *
*
Defendant - Appellant. *
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Appeals from the United States
No. 01-1277 District Court for the District of
___________ Nebraska.
United States of America, *
*
Plaintiff - Appellee, *
*
v. *
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Gene Abboud; G&A Distributing, Inc., *
doing business as Broadway *
Enterprises, *
*
Defendants - Appellants. *
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Submitted: October 17, 2001
Filed: December 7, 2001
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Before WOLLMAN, Chief Judge, MURPHY and RILEY, Circuit Judges.
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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.
1
The Honorable Lyle E. Strom, United States District Judge for the District of
Nebraska.
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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
2
The Honorable Julie E. Carnes, United States District Judge for the Northern
District of Georgia.
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pending appeal. The district court granted the motions and determined that the
double jeopardy grounds for their appeals were nonfrivolous.
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 (8th 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 (8th
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
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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
3
The presentence report had valued the amount of fraud at $3,847,307.43, an
amount it said reflected sales of illegal converter boxes throughout the United States
and elsewhere during the time frame covered by the Georgia conspiracy charge.
Although the district court stated at the sentencing hearing that it could have found
the fraud to be "over the million dollar mark," its actual finding was that the fraud
amount was $39,569.77. If the district court had adopted a $1 million amount, the
Abbouds' offense level would have been seventeen, which would have resulted in a
24-30 month guidelines range. See USSG §§2B5.3(b)(1), 2F1.1(b)(1)(L).
Imprisonment would have been mandatory as a Zone D offense. See USSG
§5C1.1(f).
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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.
4
Even under the amount of fraud found by the district court, the Abbouds could
have been exposed from 30 months to as much as 192 months imprisonment on their
five convictions for assisting unauthorized reception of cable services. See 47 U.S.C.
§ 553(b) (2000).
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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 (8th 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
though a subsequent conspiracy is alleged to have occurred during some of the same
time as a prior conspiracy, it is not necessarily the same conspiracy. See United
States v. Kienzle, 896 F.2d 326, 329 (8th Cir. 1990) (no bar for five month overlap
over a three year period); Thomas, 759 F.2d at 666 (no bar for four year overlap over
a nine year period). The fact that the narrower conspiracy charge preceded the
current broader Nebraska charge reduces the concern that the government is using
multiple conspiracy charges to retry the Abbouds on smaller and smaller conspiracies.
See United States v. Macchia, 35 F.3d 662, 669 (2d Cir. 1994) ("[W]here the smaller
conspiracy is charged first, there is not the same opportunity for prosecutorial abuse,
and the overlap of time is therefore a less important consideration.").
The Abbouds are alleged to be at the center of both conspiracies, but in this
case they are charged with involvement in a more extensive web of criminal conduct.
The Georgia indictment was limited to the Abbouds and their businesses, but the
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Nebraska indictment includes four additional coconspirators5 and seven unindicted
coconspirators.6 The substantial increase in the number of coconspirators in the
Nebraska indictment and the expanded scope of criminal activity are factors which
suggest that there were separate conspiracies and that the Abbouds assumed different
roles, duties, and responsibilities in the second conspiracy.
Similar offenses were charged in both cases. In both indictments the Abbouds
were charged with conspiracy, in violation of 18 U.S.C. § 371, to commit wire fraud
(18 U.S.C. § 1343) and to assist in the unauthorized reception of cable services (47
U.S.C. § 553(a)). In this case the Abbouds were also alleged to have conspired to
commit mail fraud in violation of 18 U.S.C. § 1341. Similarities between charges in
two indictments does not necessarily mean that there was a single conspiracy. As this
court has pointed out, "[t]he fact that both indictments charge some of the same
statutory violations is not particularly important. It is possible to have two different
conspiracies to commit exactly the same type of crime." Thomas, 759 F.2d at 666.
The fourth factor requires consideration of the overt acts charged and the
nature and scope of the activity sought to be punished in each case. Acts alleged as
part of the conspiracy in this case include manufacture of cable descramblers in Asia,
additional purchases of "turned on"7 devices from various wholesalers throughout the
United States, and the subsequent sale of Abboud products to purchasers in North
Carolina, Colorado, Florida, New Jersey, and California. The Nebraska indictment
also includes acts by the Abbouds and their coconspirators to launder their profits
through an overbilling scheme involving Cayman Island shelf corporations. The facts
5
David Abboud, Baron Abboud, Susan Germer, and Infinite Electronics.
6
Frank Russo, Edward "Trey" Prevost, William Yea, Todd Littlejohn, Frank
Redessy, Glenn Montelbono, and Sharon Snider.
7
A "turned on" cable box is one that has been modified or enhanced to allow
full reception of all premium and pay per view programming.
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alleged in the Georgia conspiracy were only a small part of the Abboud's extensive
network of illegal activities, which are alleged to have occurred over a large period
of time. In other cases we have recognized separate conspiracies where the scope of
the second conspiracy was broader or qualitatively different from the first charged.
See United States v. Aguilera, 179 F.3d 604, 608-09 (8th Cir. 1999); United States v.
Tanner, 860 F.2d 864, 867 (8th Cir. 1988); United States v. Robinson, 774 F.2d 261,
274 (8th Cir. 1985).
Finally, we consider the places in which the conspiratorial acts occurred. The
government concedes that both conspiracies were headquartered in Omaha, Nebraska,
but notes that the conduct outlined in the earlier conspiracy charge was initiated and
took place in Georgia. A substantial portion of the criminal conduct alleged in this
case involves activities in the British West Indies, Asia, Florida, Pennsylvania, North
Carolina, Texas, Colorado, New Jersey, and California. Even if two conspiracies
contain some geographical overlap, there may be separate conspiracies if each also
involves distinct places. See Aguilera, 179 F.3d at 609; Kienzle, 896 F.2d at 329.
The same is true in this case.
IV.
The Abbouds have not raised colorable claims of double jeopardy because they
were sentenced within the statutorily authorized range for their previous convictions
and the totality of the circumstances do not suggest that there has been only a single
conspiracy or that jeopardy previously attached. For these reasons we lack
jurisdiction over these interlocutory appeals, and they are dismissed.
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A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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