USA. v. Dipentino, s. 98-10449

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Citation242 F.3d 1090
Docket Number98-10450,Nos. 98-10449,98-10482,98-10481,s. 98-10449
Parties(9th Cir. 2001) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ROCCO DIPENTINO, Defendant-Appellant. UNITED STATES OF AMERICA, Plaintiff-Appellee, v. DENNIS PRICE, aka Rafiq Ali, Defendant-Appellant. UNITED STATES OF AMERICA, Plaintiff-Appellee Cross-Appellant, v. DENNIS PRICE, aka Rafiq Ali, Defendant-Appellant Cross-Appellee. UNITED STATES OF AMERICA, Plaintiff-Appellee-Cross-Appellant, v. ROCCO DIPENTINO, Defendant-Appellant-Cross-Appellee
Decision Date13 March 2001

Eric W. Swanis, Kelvin R. Stolworthy, Las Vegas, Nevada, for defendant appellant Rocco Dipentino.

Dennis P. Riordan, San Francisco, California, for defendant appellant Rafiq Ali.

James A. Morgulec, Washington, D.C., for plaintiff-appellee United States of America.

Appeals from the United States District Court for the District of Nevada Lloyd D. George, District Judge, Presiding. D.C. Nos. CR-96-00251-LDG, CR-96-00251-3-LDG.

Before: David R. Thompson, Diarmuid F. O'Scannlain, and A. Wallace Tashima, Circuit Judges.

THOMPSON, Circuit Judge:

Rocco Dipentino and Rafiq Ali appeal their convictions following their joint trial for improperly removing asbestos containing materials from the Landmark Hotel and Casino in Las Vegas, Nevada, prior to its demolition, in violation of the Clean Air Act, 42 U.S.C. SS 7412(f)(4) and (h), 7413(c)(1). The government cross-appeals the sentences imposed by the district court. We conclude that the district court committed plain error when it constructively amended the indictment by instructing the jury on a work practice standard that the defendants were not charged with violating. We exercise our discretion under Federal Rule of Criminal Procedure 52(b) to reverse the defendants' convictions and remand the case to the district court. We dismiss the government's cross-appeals as moot.

BACKGROUND

The Las Vegas Convention and Visitors Authority ("Visitors Authority") hired Ab-Haz Environmental, Inc. ("Ab-Haz"), an asbestos-abatement consulting firm, to oversee the removal of asbestos-containing materials from the Landmark Hotel and Casino in Las Vegas, Nevada, prior to its demolition. Rafiq Ali1 was the president and sole proprietor of Ab-Haz; Rocco Dipentino was an industrial hygienist employed by Ab-Haz as the on-site inspector at the Landmark. Under the terms of its contract with the Visitors Authority, Ab-Haz was required to: (1) survey the Landmark and identify the asbestos-containing materials that needed to be removed prior to demolition; (2) prepare specifications for how the asbestos removal job was to be performed; (3) assist the Visitors Authority in selecting an asbestos-removal contractor to remove the asbestos-containing materials; (4) serve as the Visitors Authority's on-site representative, providing day-to-day monitoring and oversight of the work to ensure that it was being performed in accordance with the law; and (5) inspect and certify that the site was free from asbestos following the completion of the asbestos-removal work.

The Clean Air Act classifies asbestos as a hazardous air pollutant. See 42 U.S.C. S 7412(b)(1). Emissions of hazardous air pollutants in violation of work practice standards promulgated by the Environment Protection Agency are prohibited. See 42 U.S.C. S 7412(b)(1), (h)(1). Under the work practice standard relevant to this case, an owner or operator of a demolition activity is required to remove all asbestos prior to demolition and must "[a]dequately wet the [asbestos containing] material and ensure that it remains wet until collected and contained" in leak-tight containers for proper disposal. See 40 C.F.R. S 61.145(c)(6)(i). An owner or operator of a demolition activity who knowingly violates a work practice standard is subject to criminal penalties. See 42 U.S.C. S 7413(c)(1). An employee who is carrying out his or her normal activities and acting under orders from the employer is liable only for knowing and willful violations. See 42 U.S.C. S 7413(h).

The grand jury for the District of Nevada returned a two count indictment against Ab-Haz, Rafiq Ali, Rocco Dipentino, and a defendant who was later acquitted, Richard Lovelace, who was the on-site inspector of the asbestos-removal contractor hired by the Visitors Authority. Count 1 of the indictment charged the defendants with knowingly conspiring to violate the Clean Air Act by removing regulated asbestos containing materials from surfaces in the Landmark without complying with the applicable work practice standards. Count 2, paragraph A ("Count 2PA") charged each defendant with knowingly violating the Clean Air Act by leaving scraped asbestos-containing debris on floors and other surfaces, where it was allowed to dry out, instead of placing the debris, while wet, into leak-proof containers for removal from the site. Count 2, paragraph B ("Count 2PB") charged each defendant with knowingly violating the Clean Air Act by causing asbestos-covered facility components to fall from the ceiling to the floor, rather than carefully lowering such components so as not to dislodge asbestos. One government inspector described the removal project as "the worst [asbestos] abatement job I've seen."

At the close of the government's case, the district court granted the defendants' motions for judgment of acquittal on Counts 1 and 2PB, but held that the government had produced sufficient evidence to support a conviction on Count 2PA. The jury convicted Ali and Dipentino on Count 2PA, but acquitted Lovelace.2 The district court sentenced Ali and Dipentino to five months' incarceration and five months of home detention, and fined Ali $3,000 and Dipentino $2,000.

Ali and Dipentino appeal their convictions in appeal nos. 98-10449 and 98-10450. The government cross-appeals the sentences imposed by the district court in appeal nos. 9810481 and 98-10482.

DISCUSSION
A. Constructive Amendment

Ali and Dipentino contend that the district court constructively amended the indictment by instructing the jury on a work practice standard that they were not charged in the indictment with violating -namely, that an owner or operator of a demolition activity must deposit all asbestos containing waste material at a waste disposal site that meets appropriate federal requirements. They argue that this error violated their Fifth Amendment right to be tried only on the charges included in the grand jury's indictment. See Stironev. United States, 361 U.S. 212, 215-16 (1960).

The defendants did not object to the district court's jury instruction. Accordingly, we review for plain error. See United States v. Payseno, 782 F.2d 832, 834 (9th Cir. 1986). We have the authority to reverse a conviction under Federal Rule of Criminal Procedure 52(b) when: (1) there was an error, (2) the error was plain, and (3) the error affected the defendant's substantial rights. See United States v. Olano, 62 F.3d 1180, 1187-88 (9th Cir. 1995) (citing United States v. Olano, 507 U.S. 725, 732-34 (1993)). However,"Rule 52(b) is permissive, not mandatory." Olano, 507 U.S. at 735. We will not exercise our discretion to reverse under Rule 52(b) unless "the `error seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings.' " Id. at 736 (quoting United States v. Atkinson, 297 U.S. 157, 160 (1936)).

A defendant charged in a federal criminal case by a grand jury's indictment may only be tried on the charges set forth in that indictment. See Stirone, 361 U.S. at 216. A district court that constructively amends an indictment by its instructions to the jury commits error. See United States v. Shipsey, 190 F.3d 1081, 1086 (9th Cir. 1999). A constructive amendment "involves a change, whether literal or in effect, in the terms of the [indictment]." Jones v. Smith, 231 F.3d 1227, 1232 (9th Cir. 2000) (quoting Browning v. Foltz , 837 F.2d 276, 280 & n.5 (6th Cir. 1988)); see also United States v. Olson, 925 F.2d 1170, 1175 (9th Cir. 1991) ("We distinguish variances from amendments by determining whether the charging terms of the indictment have been altered, either formally or in effect."); United States v. Von Stoll, 726 F.2d 584, 586 (9th Cir. 1984) ("An amendment of the indictment occurs when the charging terms of the indictment are altered, either literally or in effect, by the prosecutor or a court after the grand jury has last passed upon them.").

Ali and Dipentino were charged in Count 2PA with allowing scraped asbestos-containing materials to dry out on the floor, instead of placing the materials, while wet, into leak proof containers for later removal. Count 2PA specifically stated:

In the course of causing the wetting and removal of asbestos-containing materials from ceilings and other components at the Landmark Hotel and Casino, the defendants caused quantities of scraped and/or loose asbestos-containing debris to be left on floors and other surfaces where such debris was allowed to dry instead of causing all such debris to be gathered, while wet, and placed in leak-proof con tainers or wrappings to be removed from the site, as required by work practice standards promulgated pursuant to the Clean Air Act.

In its jury instructions, the district court defined the charged offense as one in which the defendants knowingly failed or knowingly caused any employee to fail to comply with the work practice standards alleged in the indictment. The district court then defined the work practice standards as follows:

When friable asbestos material is stripped from a facility component, such as a wall, ceiling, or beam, the material must be adequately wetted during the stripped operation.

All asbestos-containing material that has been removed or stripped must remain adequately wet until collected, contained, treated, and packed and sealed in leak-tight containers or wrappings in prepa ration for...

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32 cases
  • State v. Adamcik, Docket No. 34639
    • United States
    • Idaho Supreme Court
    • November 29, 2011
    ...a constructive amendment has occurred. State v. Johnson, 145 Idaho 970, 973, 188 P.3d 912, 915 (2008) (citing United States v. Dipentino, 242 F.3d 1090, 1094 (9th Cir. 2001)). A variancerequires a reversal only where "it deprives the defendant of his right to fair notice or leaves him open ......
  • State v. Adamcik
    • United States
    • Idaho Supreme Court
    • January 25, 2012
    ...a constructive amendment has occurred. State v. Johnson, 145 Idaho 970, 973, 188 P.3d 912, 915 (2008) (citing United States v. Dipentino, 242 F.3d 1090, 1094 (9th Cir.2001) ). A variance requires a reversal only where "it deprives the defendant of his right to fair notice or leaves him open......
  • United States v. Starnes
    • United States
    • U.S. Court of Appeals — Third Circuit
    • September 24, 2009
    ...the same should not hold true in the present context of a criminal prosecution under 42 U.S.C. § 7413(c)(1). Cf. United States v. Dipentino, 242 F.3d 1090, 1096 (9th Cir.2001) (upholding the conviction of a non-owner defendant under 42 U.S.C. § 7413(c)(1) where the evidence established that......
  • U.S. v. Starnes
    • United States
    • U.S. Court of Appeals — Third Circuit
    • September 24, 2009
    ...the same should not hold true in the present context of a criminal prosecution under 42 U.S.C. § 7413(c)(1). Cf. United States v. DiPentino, 242 F.3d 1090, 1096 (9th Cir. 2001) (upholding the conviction of a nonowner defendant under 42 U.S.C. § 7413(c)(1) where the evidence established that......
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8 books & journal articles
  • Environmental crimes.
    • United States
    • American Criminal Law Review Vol. 45 No. 2, March 2008
    • March 22, 2008
    ...even if he is unaware of such requirements; term "knowingly" refers to knowledge of facts, not law); United States v. Dipentino, 242 F.3d 1090, 1096-97 (9th Cir. 2001) (evidence of a CAA violation was sufficient where it showed that defendant left debris pile intact when he knew it was crea......
  • Environmental crimes.
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    • American Criminal Law Review Vol. 43 No. 2, March 2006
    • March 22, 2006
    ...even if he is unaware of such requirements; term "knowingly" refers to knowledge of facts, not law); United States v. Dipentino, 242 F.3d 1090, 1096-97 (9th Cir. 2001) (evidence of a CAA violation was sufficient where it showed that defendant left debris pile intact when he knew it was crea......
  • Environmental crimes.
    • United States
    • American Criminal Law Review Vol. 44 No. 2, March 2007
    • March 22, 2007
    ...even if he is unaware of such requirements; term "knowingly" refers to knowledge of facts, not law); United States v. Dipentino, 242 F.3d 1090, 1096-97 (9th Cir. 2001) (evidence of a CAA violation was sufficient where it showed that defendant left debris pile intact when he knew it was crea......
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    • American Criminal Law Review Vol. 46 No. 2, March 2009
    • March 22, 2009
    ...even if he is unaware of such requirements; term "knowingly" refers to knowledge of facts, not law); United States v. Dipentino, 242 F.3d 1090, 1096-97 (9th Cir. 2001) (evidence of a CAA violation was sufficient where it showed that defendant left debris pile intact when he knew it was crea......
  • Request a trial to view additional results

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