Convictions reversed in asbestos case involving LV Landmark casino

Thursday, March 15, 2001 | 10:47 a.m.

The 9th U.S. Circuit Court of Appeals in San Francisco on Wednesday reversed the convictions of two men found guilty of violating the federal Clean Air Act in the removal of asbestos from the Landmark hotel-casino in Las Vegas before its demolition.

The court said U.S. District Judge Lloyd D. George gave a wrong instruction to the jury that convicted Rocco Dipentino and Dennis Price, also called Rafiq Ali, who were sentenced to five months in jail and five months of home detention. Ali was fined $3,000 and Dipentino was assessed $2,000.

The case returns to the U.S. District Court in Las Vegas for further proceedings.

The Las Vegas Convention and Visitors Authority hired AB-Haz Environmental Inc., a consulting firm, to oversee the removal of the asbestos at the Landmark. The LVCVA imploded the hotel on Paradise Road in 1995 with plans to use the site for parking for its Las Vegas Convention Center.

Ali was president and sole proprietor of the firm, and Dipentino was an industrial hygienist employed by AB-Haz as the on-site inspector.

The two men were indicted on two counts by a federal grand jury and convicted of one, which accused them of leaving scraped asbestos debris on floors and other surfaces. There it was allowed to dry out, instead of being placed into leak-proof containers and removed from the site.

George, according to the circuit court, gave the jury an instruction that expanded the language in the indictment. His instruction added that the work practice standard in the Clean Air Act required that the waste material must be removed and dumped at an approved site. They were convicted on that count.

The court, based in San Francisco, agreed with lawyers for Dipentino and Ali that this error violated their Fifth Amendment right to be tried only on the charges included in the grand jury's indictment.

Circuit Judge David Thompson, who wrote the unanimous decision, said the instruction "permitted the jury to convict the defendants of violating a work practice standard they were not charged in the indictment with violating, namely that '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."'

The court rejected a claim by Dipentino that the evidence was insufficient to support his conviction. It said if this were the case, then a retrial would be prohibited because of double jeopardy.

"The evidence established that Dipentino 'had significant or substantial or real control and supervision' over the project and that he knowingly violated the relevant work practice standards charged in the indictment," Thompson wrote.