United States District Court, M.D. Pennsylvania
H. RAMBO United States District Judge.
were indicted on forty-six counts including embezzlement,
submitting false payroll statements, fraud, and violations of
the Clean Water Act related to a subcontract for the George
Wade Bridge project. Presently before the court is
Defendants' motion to dismiss the counts involving the
Clean Water Act in the Indictment for violating the rule of
duplicity, or, alternatively, for failing to allege the
mens rea requirement. For the reasons stated herein,
Defendants' motion to dismiss will be denied.
Indictment sets forth charges stemming from Defendants'
work on the George Wade Bridge Project (“the
Project”) between October 2010 and September 2013.
(Doc. 1.) The George Wade Bridge carries Interstate 81 across
the Susquehanna River and spans Cumberland and Dauphin
Counties. (Id. ¶ 6.) J.D. Eckman, the prime
contractor on the Project, awarded Panthera Painting, Inc.
(“Panthera”) a subcontract for blasting,
resurfacing, and repainting of the structural steel on the
George Wade Bridge. (Id. ¶ 8.) Andrew Manganas
(“Manganas”) was the President, Vice-President,
Secretary, and Treasurer of Panthera. (Id. ¶
1.) According to the Indictment, Defendants embezzled more
than $400, 000.00 that should have been paid into several
employee welfare benefit plans over the course of the
contract, which is the basis for Count 1 of the Indictment.
(Id. ¶ 20.) The Indictment further alleges that
Defendants filed twenty-one false Certified Payroll Reports
with the United States Department of Transportation in order
to accomplish the embezzlement scheme, providing the
foundation for Counts 2 through 22. (Id. ¶ 22.)
Defendants also purportedly received payments based on
fraudulent billing by means of wire transmissions in
interstate commerce, forming the basis for Counts 23 through
43 of the Indictment. (Id. ¶ 24.) Lastly, the
Indictment alleges that Defendants knowingly discharged
various pollutants that were by-products of their blasting
and painting operations on the Project into the Susquehanna
River, a United States water, without a National Pollution
Discharge Elimination System (“NPDES”) permit as
required by the Clean Water Act (“CWA”).
(Id. ¶¶ 26-38.) Without a NPDES permit,
Defendants should have contained, collected, and disposed of
all pollutants resulting from their work on the Project.
(Id.) These allegations comprise the basis for
Counts 44 through 46 of the Indictment. (Id. ¶
the grand jury's return of the Indictment on July 27,
2016, Defendants pleaded not guilty to all charges and
Manganas was released on personal recognizance on August 23,
2016. (Docs. 11 & 14.)
filed a motion to dismiss Counts 44 through 46 on February
14, 2017 (Doc. 19), followed by a brief in support thereof on
February 28, 2017 (Doc. 21). The Government filed its
opposition on March 28, 2017 (Doc. 25), and Defendants
replied on April 25, 2017 (Doc. 31). Accordingly, the motion
to dismiss has been fully briefed and is ripe for
indictment is an accusation only, and its purpose is to
identify the defendant's alleged offense . . . and fully
inform the accused of the nature of the charges so as to
enable him to prepare any defense he might have.”
United States v. Stansfield, 171 F.3d 806, 812 (3d
Cir. 1999) (quotations and citations omitted). A defendant,
however, may move to dismiss an indictment based on defects
in the indictment, lack of jurisdiction, or failure to charge
an offense. See Fed. R. Crim. P. 12(b)(2), (3)(B).
indictment is sufficient “if it, first, contains the
elements of the offense charged and fairly informs a
defendant of the charge [against him, ] and, second, enables
him to plead an acquittal or conviction in bar of future
prosecutions for the same offense.” Hamling v.
United States, 418 U.S. 87, 117 (1974); accord
United States v. Cefaratti, 221 F.3d 502, 507 (3d Cir.
2000) (“An indictment . . . to be sufficient must
contain all essential elements of the charged
offense.”). However, an indictment “fails to
state an offense if the specific facts alleged in the
charging document fall beyond the scope of the relevant
criminal statute, as a matter of statutory
interpretation.” United States v. Panarella,
277 F.3d 678, 685 (3d Cir. 2002). In other words, the facts
in the indictment must satisfy the elements of the underlying
criminal statute. Id. at 684.
“[i]n considering a defense motion to dismiss an
indictment, the district court [must] accept[ ] as true the
factual allegations set forth in the indictment.”
United States v. Bergrin, 650 F.3d 257, 265 (3d Cir.
2011) (quoting United States v. Besmajian, 910 F.2d
1153, 1154 (3d Cir. 1990)) (alterations in original). If the
allegations in the indictment do not suffice to state an
offense, Rule 12(b)(3)(B) authorizes dismissal; however,
“dismissal[ ] may not be predicated upon the
insufficiency of the evidence to prove the indictment's
charges.” United States v. DeLaurentis, 230
F.3d 659, 660-61 (3d Cir. 2000) (“Unless there is a
stipulated record, or unless immunity issues are implicated,
a pretrial motion to dismiss an indictment is not a
permissible vehicle for addressing the sufficiency of the
have moved to dismiss Counts 44 through 46 of the Indictment
alleging violations of the CWA (hereinafter “CWA
counts”) on two bases: (1) that the CWA counts are
duplicative because they do not comport with the statutory
unit of prosecution; and (2) that the Indictment fails to
state an offense because it lacks the mens rea
requirement applicable to each element of a
“knowing” violation of the CWA. (See
Doc. 21.) The Government argues in opposition that the CWA
counts are not duplicative and that the Indictment ...