## Facts

- The Las Vegas Convention and Visitors Authority hired Ab-Haz Environmental, Inc. to manage asbestos abatement at the Landmark Hotel and Casino before demolition.
- Ab-Haz’s duties included surveying asbestos-containing materials, preparing abatement specifications, assisting in contractor selection, providing on-site monitoring for legal compliance, and certifying the site as asbestos-free after completion.
- Dennis Price (also known as Rafiq Ali) was Ab-Haz’s president and sole proprietor; Rocco Dipentino was an Ab-Haz industrial hygienist who served as the on-site inspector.
- Under the Clean Air Act, asbestos is a hazardous air pollutant, and EPA work practice standards required asbestos-containing material to be adequately wetted and kept wet until collected and sealed in leak-tight containers for disposal.
- The indictment alleged violations of Clean Air Act work practice standards based on asbestos-containing debris that was allowed to dry on floors instead of being kept wet and properly contained.
- Trial evidence described Dipentino as licensed and trained in asbestos regulation, present daily on-site, able to halt noncompliant work, and responsible for signing inspection reports certifying areas as asbestos-free.

## Issues

1. Whether the district court’s jury instructions constructively amended the indictment by permitting conviction under an uncharged, broader Clean Air Act work practice standard.
2. Whether the unpreserved instructional error satisfied Federal Rule of Criminal Procedure 52(b) plain-error requirements and warranted discretionary reversal.
3. Whether reversal of the convictions mooted the government’s cross-appeals challenging the sentences.

## Decision

- The Ninth Circuit held the jury instructions constructively amended the indictment by allowing conviction on a work practice standard not charged by the grand jury.
- The court found plain error under Rule 52(b): the error was clear, affected substantial rights, and warranted correction to protect the fairness and integrity of the proceedings.
- The court reversed the convictions and remanded for further proceedings.
- The court dismissed the government’s sentencing cross-appeals as moot.

## Legal Principles

- A constructive amendment occurs when jury instructions and/or proof effectively alter essential elements of the charged offense, creating a substantial likelihood of conviction for an offense not charged by the grand jury.
- Constructive amendment violates the Fifth Amendment grand jury requirement and is not treated as a harmless deviation when it expands the bases for conviction beyond the indictment.
- Under Federal Rule of Criminal Procedure 52(b), an appellate court may correct an unpreserved error when (1) there is error, (2) the error is plain, and (3) it affects substantial rights; the court may reverse if the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.
- When underlying convictions are reversed, appellate challenges to resulting sentences are generally moot.

## Conclusion

The Ninth Circuit reversed the defendants’ Clean Air Act convictions because the jury was instructed on a work practice standard different from the one charged, which constructively amended the indictment and constituted plain error requiring reversal; the government’s sentencing cross-appeals were dismissed as moot.


United States v. Dipentino, 242 F.3d 1090 (9th Cir. 2001)