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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 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.

         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 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. ¶ 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 sever Counts 44 through 46 on February 14, 2017 (Doc. 18), followed by a brief in support thereof on February 28, 2017 (Doc. 20).[1] 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.

         III. Discussion

         Defendants 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.)

         A. Rule 8(a)

         Federal Rule of Criminal Procedure 8 permits joinder of offenses against a defendant. Rule 8(a) provides, in relevant part, that:

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 ...


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