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 sever Counts 44 through 46 in the
Indictment for violations of the Clean Water Act. For the
reasons stated herein, Defendants' motion 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 were required to contain, collect, and dispose 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 sever Counts 44 through 46 on February 14,
2017 (Doc. 18), followed by a brief in support thereof on
February 28, 2017 (Doc. 20). The Government filed its
opposition on March 28, 2017 (Doc. 24), and Defendants
replied on April 25, 2017 (Doc. 30). Accordingly, the motion
to sever has been fully briefed and is ripe for disposition.
have moved to sever Counts 44 through 46 pursuant to the CWA
(hereinafter “CWA counts”) arguing that the CWA
counts are not the same or similar in character, or part of a
common scheme or plan, with the other forty-three counts and,
thus, were improperly joined under Rule 8(a). Alternatively,
Defendants contend that the CWA counts should be severed in
accordance with Rule 14 in order to avoid prejudice to
Defendants. (See Doc. 20.) The Government contends
that joinder of the CWA counts was proper because the charges
constitute parts of a common plan and there is no actual
prejudice to Defendants if the court denies severance.
(See Doc. 24.)
Rule of Criminal Procedure 8 permits joinder of offenses
against a defendant. Rule 8(a) provides, in relevant part,
The indictment . . . may charge a defendant in separate
counts with 2 or more offenses if the offenses charged . . .
are of the same or similar character, or are based on the
same act or transaction, or are connected with or constitute
parts of a common scheme or plan.
Fed. R. Crim. P. 8(a). Federal Rule of Criminal Procedure
8(a) permits joinder of offenses “when a transactional
nexus exists between the offenses . . . to be joined.”
United States v. Brown, Crim. No. 02-cr-0146, 2002
WL 32739530, *2 (M.D. Pa. Dec. 17, 2002) (quoting United
States v. Eufrasio, 935 F.2d 553, 570 n.20 (3d Cir.
1991)). Usually, the relevant inquiry is whether “the
offenses . . . to be joined arise out of a common series of
acts or transactions.” Eufrasio, 935 F.2d at
570 n.20. The burden of establishing the improper joinder
rests on the party requesting severance. United States v.
Stevens, 188 F.Supp.3d 421, 423 (M.D. Pa. 2016). In
determining whether ...