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United States v. Manganas

United States District Court, M.D. Pennsylvania

June 13, 2017

UNITED STATES OF AMERICA
v.
ANDREW MANGANAS and PANTHERA PAINTING, INC.

          MEMORANDUM

          SYLVIA H. RAMBO United States District Judge.

         Defendants 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.

         I. Background

         A. Facts

         The 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. ¶ 38.)

         B. Procedural History

         Following 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.)

         Defendants 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).[1] 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 disposition.

         II. Legal Standard

         “An 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).

         An 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.

         Finally, “[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 government's evidence.”).

         III. Discussion

         Defendants 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 ...


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