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United States v. Frangos

United States District Court, E.D. Pennsylvania

September 18, 2014



JOHN R. PADOVA, District Judge.

Count III of the Indictment in this case charges Defendants Mikhail Zubialevich, Nikolaos Frangos and George Capuzello with concealing, harboring and shielding an alien from detection by immigration and other law enforcement authorities, and aiding and abetting the concealing, harboring and shielding of that alien, in a place, namely the Girard Point Bridge, in violation of 8 U.S.C. §§ 1324(a)(1)(A)(iii), 1324(a)(1)(B)(i) and 1324(a)(1)(A)(v)(II). Zubialevich has moved to dismiss Count III pursuant to Federal Rule of Criminal Procedure 12(b)(3), arguing that the Count fails both to state an offense that is cognizable under § 1324(a)(1)(A)(iii) (the "Harboring Statute"), and to allege certain elements of the charged offenses. Frangos and Capuzello have filed a Partial Joinder in Zubialevich's Motion to Dismiss, seeking to join Zubialevich's Motion to the extent that it argues that Count III fails to state a cognizable offense. For the following reasons, we deny the Motion to Dismiss.


The Indictment in this case alleges, in pertinent part, that Frangos is the part-owner of a company that, in 2011, was repairing and refurbishing the Girard Point Bridge (the "Bridge"). Because the Bridge was a nesting site for Peregrine Falcons, the contract for the Bridge work required the company to take certain measures to safeguard the falcons' nesting site. Nevertheless, on June 4, 2011, Capuzello, a company foreman, ordered two employees, Zubialevich and Walter Morgan, an unauthorized alien, to carry tools and equipment to an area next to the falcons' nesting box and to perform grinding or sanding in that area. When Zubialevich and Morgan performed those tasks, they disturbed the falcons, who then abandoned their nest.

On June 13, 2011, in connection with a criminal investigation of the incident, officers of the Pennsylvania Game Commission and the U.S. Fish and Wildlife Service (the "Wildlife Service"), met with Frangos and requested the names of the individuals who had disturbed the falcons. Frangos promised to provide those names but, at the same time, he did not want to reveal to the authorities that his company employed unauthorized aliens, including Morgan. Accordingly, Frangos and Capuzello persuaded another individual, J.W., to falsely say that he was one of the two workers who had frightened the falcons. Thereafter, in a June 13, 2011 interview, Frangos purported to identify the three workers involved in the incident to the Wildlife Service; on June 24, 2011, J.W., Zubialevich and Capuzello gave false statements to the Wildlife Service; and Capuzello and Zubialevich gave false testimony to a federal grand jury on April 23, 2013, and April 30, 2013, respectively.

The Indictment against Defendants includes five Counts, but the Motion to Dismiss only seeks dismissal of Count III.[1] Count III charges Zubialevich, Capuzello, and Frangos with violation of the Harboring Statute, which imposes criminal penalties on anyone who:

knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law, conceals, harbors, or shields from detection, or attempts to conceal, harbor, or shield from detection, such alien in any place, including any building or any means of transportation[.]

8 U.S.C. § 1324(a)(1)(A)(iii). All three Defendants have moved to dismiss this Count of the Indictment.


As a general matter, Federal Rule of Criminal Procedure 7 requires an indictment to provide "a plain, concise, and definite written statement of the essential facts constituting the offense charged." Fed. R. Crim. P. 7(c)(1). "[A]n indictment is facially sufficient if it (1) contains the elements of the offense intended to be charged, (2) sufficiently apprises the defendant of what he must be prepared to meet, and (3) allows the defendant to show with accuracy to what extent he may plead a former acquittal or conviction in the event of a subsequent prosecution.'" United States v. Huet , 665 F.3d 588, 595 (3d Cir. 2012) (quoting United States v. Vitillo , 490 F.3d 314, 321 (3d Cir. 2007)). "[N]o greater specificity than the statutory language is required so long as there is sufficient factual orientation' to permit a defendant to prepare his defense and invoke double jeopardy." Id . (alteration in original) (quoting United States v. Kemp , 500 F.3d 257, 280 (3d Cir. 2007)).

Federal Rule of Criminal Procedure 12(b)(3) authorizes a defendant to lodge a pretrial challenge to the sufficiency of an indictment on the basis that the indictment "fails... to state an offense." Fed. R. Crim. P. 12(b)(3)(B). There are two primary ways in which a defendant can proceed with such a challenge. "First, a defendant may contend that an indictment is insufficient on the basis that it does not satisfy the first requirement in that it fails to charge an essential element of the crime.'" United States v. Stock , 728 F.3d 287, 292 (3d Cir. 2013) (quoting Huet , 665 F.3d at 595). "Second, because an indictment that merely recites in general terms the essential elements of the offense' does not satisfy the second and third requirements, a defendant may also claim that an indictment fails to state an offense on the basis that the specific facts alleged... fall beyond the scope of the relevant criminal statute, as a matter of statutory interpretation.'" Id . (quoting United States v. Panarella , 277 F.3d 678, 685 (3d Cir. 2002)).

Significantly, our "review of a motion to dismiss an indictment is a narrow, limited analysis geared only towards ensuring that legally deficient charges do not go to a jury.'" Id. at 292 n.4 (quoting United States v. Bergrin , 650 F.3d 257, 268 (3d Cir. 2011)). It "is not... a permissible vehicle for addressing the sufficiency of the government's evidence.'" Id . (alteration in original) (quoting Bergrin , 650 F.3d at 265). Accordingly, we may only determine "whether the facts alleged in the indictment, if accepted as entirely true, state the elements of an offense and could result in a guilty verdict.'" Id . (quoting Bergrin, 650 F.23 at 268). In addition, we must review the facts alleged in the indictment "using a common sense construction." United States v. Hodge , 211 F.3d 74, 76 (3d Cir. 2000) (citation omitted).


A. Whether the Facts Alleged Fall Within the Scope of the ...

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