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Painting JV Cleared; Suspension Lifted

Monday, November 24, 2014

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The bird calmly stayed put—while the workers were there, and even after they left. And the one worker's lone fake card could have fooled anyone, especially in his stack of real ones.

So ruled a federal jury in Philadelphia as it acquitted an industrial painting joint venture of disturbing federally protected peregrine falcons and hiring an undocumented worker on a $70 million bridge project in Philadelphia.

Suspension Lifted

The unanimous verdict, reached in less than four hours after a three-week-long trial, prompted the federal government to quickly lift the suspension and proposed debarment announced in July against Liberty Maintenance Inc. of Campbell, OH; Alpha Painting and Construction Company Inc. of Baltimore, MD; and employees Nikolaos Frangos, George Capuzello and Mikhail Zubialevich.

Courtesy Stevens & Lee

The defendants "disturbed and ultimately destroyed" the falcon's nesting site, the government said. The defendants argued successfully that this photo indicated otherwise.

Frangos was part owner of Liberty Maintenance and a principal of the joint venture. Capuzello was a foreman for the joint venture and assigned to supervise a painting crew that included Zubialevich. The defendants had faced 10 to 40 years in prison if convicted.

The verdict Nov. 10 and lifted suspension Nov. 19 end a costly three-and-a-half-year odyssey for the defendants.

"This is a case that never should have been brought by the federal government—and, thankfully, the jury realized that," William A. DeStefano, an attorney for the defendants, said Friday (Nov. 21).

'Frightened and Disturbed'

The defendants were indicted in May, accused of violating a Pennsylvania Department of Transportation (PennDOT) contract June 4, 2011, when "they disturbed and ultimately destroyed protected bird species nesting sites."

Specifically, authorities said, Capuzello ordered Zubialevich and Walter Morgan to perform grinding or sanding in the falcons' “restricted zone,” which "frightened and disturbed the falcons and caused them to abandon their nest," according to a news release about the charges.

Falcon Later
Courtesy Stevens & Lee

Other photos in the sequence showed that the workers left by 1:55. Sixteen minutes later, the falcon remained in its place.

The period was documented by a bird specialist hired as part of the bridge painting contract. DeStefano said the bird watcher took about 80 photographs in just a few minutes.

The photo sequence shows a falcon sitting and watching the worker, who had carried a hose through the area. The bird does not move and remains in place after the worker left.

Worker Allegations

The case grew during the investigation, becoming a federal issue because of the falcons' status and because the project was funded by the American Recovery and Reinvestment (Stimulus) Act.

Stevens & Lee

"This is a case that never should have been brought by the federal government—and, thankfully, the jury realized that," said attorney William A. DeStefano.

Authorities said the defendants "conspired to cover up the identity of one of the workers, who was an illegal alien and was partly responsible for disturbing the Peregrine Falcons." That worker was Morgan, aka Walter Eduardo Morgan Gomez.

DeStefano said that the Honduran-born Morgan did, indeed, turn out to be undocumented, but that he had been paid prevailing wages (about $45 an hour), with taxes withdrawn and documented, throughout the project.

Furthermore, all of the worker's papers were authentic, with the exception of a very realistic-looking phony Social Security card, the lawyer said.

Jurors accepted the defendants' contention that they could not have known that the worker was illegal and that he had been compensated and treated fairly.

Girard Point Bridge
Wikimedia Commons / Davidt8

Peregrine falcons have long had nesting sites on the Girard Point Bridge in Philadelphia. The birds are a federally protected species.

The jury also rejected authorities' accusation that Frangos and Capuzello "intimidated another person, J.W., in order to prevent or delay communication with a Special Agent relating to the possible commission of a federal offense."

Footing the Bill

Although the firms were allowed to continue other major projects while the case was underway, the legal fees for their defense amounted to several hundred thousand dollars, DeStefano said.

The companies are considering legal action to recoup their fees, but that is uncertain and such a case would not be easy, he said.

"This was an important case," he said.

peregrine falcon
Pennsylvania Game Commission / Joe Kosack

PennDOT's contract required safeguarding of the peregrine falcon's nesting sites, including having a qualified observer on hand to monitor the habitat and nesting areas.

"Although the criminal charges in and of themselves weren't that serious ... the collateral consequences of being convicted of these charges ... were very serious, and it could have spelled the end for these two companies.

"I don't know if there's enough work that's not subject to federal funding to keep these companies going."

Securing an expedited trial date helped prevent further damage, and the jurors did the rest, he said.

"It was pretty clear as the trial was winding down that the jury just wasn't buying the government's allegations."


Tagged categories: American Recovery and Reinvestment Act; Bridges; Criminal acts; Department of Transportation (DOT); Environmental Protection; Federal Highway Administration (FHWA); Government contracts; North America; Program/Project Management; Workers

Comment from MICHAEL DEATON, (11/24/2014, 6:59 AM)

Congratulations to Nick & all the guys dealing with this feathery issue...looks like someone's hopes & dreams of being the grand whistleblower were shot down. Bird recon, displacement, and relocation seems 2 need factoring into large bridge projects...shot guns won't work anymore! :)

Comment from Greg Internicola, (11/25/2014, 6:28 AM)

If the worthless government zealots would only go after Illegals the way they do with protecting Flora and Fauna there would be no need for I-9 forms. It is time we vote out all Incumbents and start with a fresh batch liars. I am a proud retired IUPAT member and I vote against all incumbents. I urge everyone to do the same

Comment from Mike McCloud, (11/25/2014, 7:01 AM)

Another waste of OUR money!

Comment from Andrew Piedl, (11/26/2014, 3:55 PM)

I applaud the efforts of those that protect the land. So many of us are far more distraught about offenses to our flag, which is a symbol of this land, than to offenses made to the land itself. Regardless of the outcome of this case, workers did violate the project's requirements to stay out of a protected work zone. If the contractors would have simply followed the project requirements, they would not have landed in court. My personal experience is that Philadelphia federal juries, that draw from an area well beyond the city's borders, are easily swayed by nonsensical anti-government diatribes spun by lawyers.

Comment from Franklin Teagle, (6/15/2018, 6:25 PM)

Hands down, the best company I have ever worked for. From the owners to the new hire helpers. Everyone is treated fairly and equally.

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