The United States sued three employees of Ab-Haz Environmental, Inc. (Ab-Haz) for improperly removing asbestos-containing materials in violation of the Clean Air Act ("CAA" or the "Act").[1] The United States alleged that defendants' removal of asbestos did not conform to the work practice standards for removal of hazardous air pollutants promulgated by the Environmental Protection Agency (EPA)[2] and that defendants knowingly and willfully conspired and violated the Act.[3] After a trial, the jury convicted two of the defendants.[4] Defendants appealed their convictions and the Ninth Circuit reversed, holding that the district court committed plain error by amending the grand jury indictment in its jury instructions.
The Las Vegas Convention and Visitors Authority hired Ab-Haz to oversee the removal of asbestos-containing materials from the Landmark Hotel and Casino. Ab-Haz was required to survey and identify the asbestos-containing materials, prepare specifications for removal, assist in the selection of an asbestos-removal contractor, provide day-to-day monitoring and oversight of the work to ensure it was being performed in accordance with the law, and inspect and certify that the site was free from asbestos upon completion of the asbestos-removal work.
The grand jury for the District of Nevada returned a two-count indictment against the defendants.[5] At the close of the government's case, the district court acquitted defendants on Counts 1 and 2B, but ruled that there was sufficient evidence to support a conviction under Count 2A. The district court instructed the jury, and the jury convicted two of the defendants. Defendants appealed their convictions based on a faulty jury instruction,[6] and the United States cross-appealed the court-imposed sentences.
The Ninth Circuit reversed the convictions and dismissed the United States's cross appeal. Although the defendants did not object to the district court's jury instructions, the Ninth Circuit reviewed the district court's decision for plain error under its authority to reverse a conviction. The Ninth Circuit reasoned that a defendant charged in a federal criminal case by a grand jury's indictment may only be tried on the charges set forth in the indictment. Therefore, jury instructions that "constructively amend" the indictment constitute error.[7] In this case, the district court defined EPA's applicable workplace standards for hazardous air pollutants beyond what was included in the indictment; therefore, the defendants were prejudiced by the constructive amendment. The Ninth Circuit determined that under the jury instructions, the jury may have found the defendants not guilty of the indictment charges--permitting scraped asbestos to dry out before placing it in containers--but convicted them because they failed to move the containers as soon as practical to a government-approved waste disposal site--a step beyond the reach of the indictment. Because the defendants were prejudiced by the district court's instructions, the Ninth Circuit exercised its discretion and reversed the defendants' convictions.[8]
[3] The CAA classifies asbestos as a hazardous air pollutant. 42 U.S.C. § 7412(b)(1) (1994). Emissions from hazardous air pollutants beyond EPA's work practice standards are prohibited under the Act. Id. § 7412(h)(1).
[4] The jury convicted Rocco Dipentino and Rafiq Ali, but acquitted Richard Lovelace, an on-site inspector. The district court sentenced Dipentino and Ali to five months incarceration, five months of home imprisonment, and imposed fines of $3000 and $2000, respectively. United States v. Dipentino, 242 F.3d 1090, 1093-94 (9th Cir. 2001).
[5] Id. Count 1 charged the defendants with knowingly conspiring to violate the Act by not complying with EPA's work practice standards. Count 2 contained two paragraphs. Paragraph A charged defendants with knowingly violating the Act by leaving asbestos debris on floors and other surfaces, where it was allowed to dry out, rather than following EPA's requirement of storing the wet debris in leak-proof containers for removal from the site. Paragraph B charged defendants with knowingly violating the Act by causing the asbestos debris to fall from the ceiling to the floor, rather than following EPA's requirement of carefully lowering the components to avoid dislodging the asbestos.
[6] In addition to the language in the two counts of the indictment, the disputed jury instruction added: "All asbestos-containing waste material shall be deposited as soon as is practical by the waste generator at a waste disposal site that meets appropriate federal requirements." Id. at 1095.
[8] The Ninth Circuit also examined the sufficiency of the government's evidence presented at trial to determine if the government would be barred from retrying its case against the defendants under the Double Jeopardy Clause. The court held that the government's evidence was sufficient to support a conviction. Id. at 1097.
