United States of America v. Gkanios

Filing 79

ORDER granting 74 Plaintiff's Motion to Enforce Judgment; denying 76 Defendant's Motion to Stay. Please see Order for compliance deadline and other details. Signed by Judge James I. Cohn on 2/20/2013. (sry)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 12-60423-CIV-COHN/SELTZER
UNITED STATES OF AMERICA,
Plaintiff,
v.
FOTIOS GKANIOS, a/k/a Frank Gkanios,
Defendant.
__________________________________/
ORDER ENFORCING JUDGMENT AND DENYING STAY PENDING APPEAL
THIS CAUSE is before the Court upon Plaintiff’s Motion to Enforce Judgment
[DE 74] (“Enforcement Motion”) and Defendant’s Motion to Stay Enforcement of
Judgment [DE 76] (“Stay Motion”). The Court has carefully reviewed these motions,
all related filings, and the record in this case, and the Court is otherwise fully advised in
the premises.
I.

Background
On March 7, 2012, the United States filed this action seeking to revoke the order

admitting Defendant Fotios Gkanios, a/k/a Frank Gkanios, to citizenship and to cancel
his certificate of naturalization. See DE 1; 8 U.S.C. § 1451(a) (authorizing proceedings
to revoke naturalized citizenship that was procured illegally or by concealment of
material fact or willful misrepresentation). On November 29, 2012, the Court denied
Gkanios’s Motion to Dismiss based on the Government’s delay in bringing this action.
See DE 69 at 6-8. In the same Order, the Court granted the Government’s Motion for
Summary Judgment. See id. at 10-13. Based on Gkanios’s convictions for raping and
sodomizing his underage stepdaughter, the Court concluded that “Gkanios illegally

procured his citizenship because he lacked the good moral character required to
naturalize, having committed unlawful acts that adversely reflected on his moral
character” during the relevant statutory period. Id. at 11-12.
That same day, the Court entered a Final Judgment in favor of the United States
and against Gkanios. See DE 70. As relevant here, the Judgment provided as follows:
2.

Defendant Gkanios’s naturalization is revoked, and his Certificate
of Naturalization No. 12430129, dated June 2, 1989, is cancelled;

3

From the date of this Judgment, Defendant Gkanios is forever
restrained and enjoined from claiming any rights, privileges, or
advantages under any document that evidences United States
citizenship;

4.

Within ten days of the date of this Judgment, Defendant Gkanios
shall surrender and deliver his Certificate of Naturalization and any
other indicia of United States citizenship (including any United
States passport or voter registration card issued to Defendant), as
well as any copies thereof in his possession, and make good faith
efforts to recover and then surrender any copies thereof that he
knows are in the possession of others, to the Attorney General or
his representative[.]

Id. at 1-2.
Although Gkanios subsequently filed a Notice of Appeal, see DE 71, he did not
surrender his Certificate of Naturalization and other citizenship documents within ten
days of the Court’s Judgment (i.e., by December 9, 2012) or at any time thereafter.
Thus, on January 7, 2013, the United States filed its present Enforcement Motion.
See DE 74. On January 25, 2013, Gkanios filed his Stay Motion. See DE 76. Both
motions are fully briefed and ripe for decision.
II.

Discussion
In its Enforcement Motion, the United States asks the Court to order Gkanios to

“immediately surrender his cancelled U.S. citizenship documents to the Government.”
2

DE 74 at 2. The United States further suggests that the Court “hold Gkanios in
contempt for his noncompliance with the Judgment.” Id. In response to the
Enforcement Motion, Gkanios notes that he has moved to stay enforcement of the
Judgment. See DE 75 at 1. More, Gkanios states that he is “willing to adhere to any
request by the Court, or on agreement of the parties to either relinquish the U.S.
citizenship documents to the Clerk, or the Government so long as removal proceedings
are not initiated prior to the Appeal being decided.” Id. In its Reply, the United States
correctly points out that the Judgment ordering Gkanios to surrender his citizenship
documents was not conditioned on whether removal proceedings were brought against
him during any appeal of the Judgment. See DE 77 at 1. The United States also
properly notes that the decision whether to bring removal proceedings against Gkanios
is within the Government’s discretion and that Gkanios has cited no authority that would
preclude such proceedings here. See id. at 2.
Because Gkanios offers no valid reason to excuse his noncompliance with the
Court’s Judgment, the enforcement of the Judgment depends on the merits of
Gkanios’s Stay Motion, which the Court construes as a motion for a stay pending
appeal. In deciding whether to stay a judgment pending appeal, the Court must
consider “(1) whether the stay applicant has made a strong showing that he is likely to
succeed on the merits; (2) whether the applicant will be irreparably injured absent a
stay; (3) whether issuance of the stay will substantially injure the other parties
interested in the proceeding; and (4) where the public interest lies.” Hilton v. Braunskill,
481 U.S. 770, 776 (1987).
Here, the Court finds that all of these factors warrant denial of a stay. Although
Gkanios has filed a notice of appeal, he has made no showing that he is likely to prevail
3

on the merits or even that he has a substantial argument in support of reversal.
Further, Gkanios seeks to stay the Judgment only “insofar as [it] requir[es] the
surrender of Defendant’s United States Citizenship Documentation.” DE 76 at 1.
Because the Judgment separately revoked Gkanios’s naturalization and enjoined him
from claiming any rights of citizenship, the surrender of Gkanios’s citizenship
documents would cause him no additional harm. By contrast, staying the Judgment
would harm the Government by preventing it from enforcing federal immigration laws
against a person who repeatedly raped and sodomized his minor stepdaughter shortly
before he applied for citizenship. For this same reason, the public interest supports
denying a stay in this case. The Court will therefore deny Gkanios’s Stay Motion and
grant the Government’s Enforcement Motion.
III.

Conclusion
For the reasons discussed, it is hereby ORDERED AND ADJUDGED as follows:

1.

Plaintiff’s Motion to Enforce Judgment [DE 74] is GRANTED;

2.

Defendant’s Motion to Stay Enforcement of Judgment [DE 76] is DENIED;

3.

By no later than noon on Friday, March 1, 2013, Defendant Fotios Gkanios
shall surrender and deliver his Certificate of Naturalization and any other indicia
of United States citizenship (including any United States passport or voter
registration card issued to Defendant), as well as any copies thereof in his
possession, and make good faith efforts to recover and then surrender any
copies thereof that he knows are in the possession of others, to the Attorney
General or his representative; and

4.

Although the Court declines to hold Defendant Gkanios in contempt at this time,
if Gkanios fails to meet the deadline specified in paragraph 3 above, the Court
4

will consider any renewed motion by the United States for a finding of contempt.1
DONE AND ORDERED in Chambers at Fort Lauderdale, Broward County,
Florida, this 20th day of February, 2013.

Copies to:
Counsel of record and
pro se parties via CM/ECF

1

The Court recognizes that Gkanios may seek a stay of the Judgment from the
Eleventh Circuit. See Fed. R. App. P. 8; 11th Cir. R. 8-1. Absent a stay from that
Court, however, Gkanios must comply with this Order.
5