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United States v. Dipentino

ELR Citation: 31 ELR 20532
Nos. No. 98-10449, 242 F.3d 1090/(9th Cir., 03/13/2001)

The court reverses and remands the convictions of two individuals charged with improperly removing asbestos-containing materials from a hotel and casino in Las Vegas, Nevada. The court first holds that the district court committed plain error when it constructively amended the indictment by instructing the jury on a work practice standard that the individuals were not charged with violating. The court also holds that the individuals were prejudiced by the constructive amendment. The court, therefore, reverses and remands the convictions even though the individuals failed to object to the erroneous instructions at trial. The court next holds that the evidence was sufficient to support one individual's conviction for violating the Clean Air Act. The court addressed this issue because were the evidence presented at trial insufficient to support a conviction, the Double Jeopardy Clause would have barred a retrial of this issue.

Counsel for Plaintiff
James A. Morgulec
Law Offices of James A. Morgulec
1236 Walter St. SE, Washington DC 20003
(202) 544-0968

Counsel for Defendant
Kevin R. Stolworthy
Jones Vargas
3773 Howard Hughes Pkwy., 3d Fl. S., Las Vegas NV 89109
(702) 734-2220

Thompson, J. Before O'Scannlain and Tashima, JJ.