By MARYCLAIRE DALE
Associated Press

PHILADELPHIA - Justice Department efforts to pursue a second fraud trial for an imprisoned cable-television mogul and his son amount to constitutionally prohibited double jeopardy, a defense lawyer argued Wednesday before an 11-judge U.S. appeals panel.

Adelphia Communications Corp. founder John Rigas, 85, is already serving a 12-year prison term, while his 53-year-old son, Timothy, is serving a 17-year sentence after federal convictions in New York for fraud and conspiracy.

Prosecutors allege that they used Adelphia - one of the nation's largest cable companies before its 2002 collapse - like a personal piggy bank, to the tune of $1.9 billion.

The Justice Department hopes to prosecute them a second time in Pennsylvania on charges of conspiring to avoid $300 million in taxes on that money, an allegation not lodged in the first case.

Federal appeals courts are deeply split on when double jeopardy applies in such cases, and the Rigases' appeal has likewise divided the 3rd U.S. Circuit in Philadelphia. A panel voted 2-1 last year to have the district judge reconsider his decision to allow a second trial. But prosecutors asked for a review by all 11 appellate judges.

Several judges seemed skeptical of the government's two-trial strategy. They noted that nearly every financial crime involves an underlying tax fraud because few criminals report illegal income. Prosecutors could routinely leave the tax conspiracy uncharged, then file it if they lose the larger criminal case, the judges said.

"You essentially have it both ways," Hon. Julio Fuentes said, challenging Justice lawyer Alexander Robbins during an hourlong session. "You can start a prosecution in New York and bring a subsequent prosecution (in Pennsylvania) if you lose."

Fuentes said the scenario goes to the heart of the double-jeopardy rule, which protects criminal defendants from being tried more than once for the same crime.

The government argued that different elements of a conspiracy can be tried separately. The two Rigas indictments, Robbins said, involve different victims, a point the trial judge noted in refusing to drop the Pennsylvania charges.

"In the New York action, the Rigases were charged with agreeing to conceal from investors, analysts and lenders the failing financial condition of Adelphia," District Judge Hon. John Jones III wrote in his 2008 opinion. "In this action, the Rigases are charged with agreeing to avoid paying income taxes. These two different objectives mark two different conspiracies."

Defense lawyer Larry McMichael argued that both indictments involve the same conspiracy statute.

The judges did not indicate when they would rule. But John Rigas is already slated to be in prison until his mid-90s.

"Just in case he lives past 95, the government wants to keep him in jail a little longer," McMichael said after the hearing.