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Washington, D.C. – The U.S. Supreme Court threw out a Pennsylvania man’s hazardous-waste conviction last week, seven years after the state’s highest court ruled that his co-defendant was prosecuted under the wrong law.

The justices, in an unsigned opinion, said William Fiore could not be convicted of operating a hazardous-waste disposal plant without a permit, because he had a permit.

The Constitution’s due-process guarantee ‘forbids a state to convict a person of a crime without proving the elements of that crime beyond a reasonable doubt,’ the court said.

‘In this case, failure to possess a permit is a basic element of the crime of which Fiore was convicted,’ the court said. ‘And the parties agree that [prosecutors] presented no evidence whatsoever to prove that basic element.’

‘The simple, inevitable conclusion is that Fiore’s conviction fails to satisfy the federal Constitution’s demands,’ the court added.

Fiore owned a hazardous-waste disposal facility in Allegheny County in western Pennsylvania, and David Scarpone was its general manager. The two men were prosecuted in 1984 after state officials found that a monitoring pipe was altered so that hazardous material could be dumped without being noticed by inspectors.

Fiore and Scarpone were convicted of operating a hazardous-waste facility without a permit. The plant had a permit, but prosecutors successfully argued that the altered monitoring system was such a significant violation that it in effect canceled the permit.

Fiore’s conviction was upheld by an appellate court, and the Pennsylvania Supreme Court denied review in 1990.

But a separate state appeals court threw out Scarpone’s conviction. The court said he could not be convicted of operating the plant without a permit, but that he could have been charged with violating the permit’s terms. The Pennsylvania Supreme Court upheld that ruling in December 1993.

Pennsylvania courts refused to apply the ruling in Scarpone’s case to Fiore’s case, and the 3rd U.S. Circuit Court of Appeals also ruled against him.

The U.S. Supreme Court granted review to Fiore’s appeal in 1999. After hearing arguments, the justices asked the Pennsylvania Supreme Court to state whether its ruling in Scarpone’s case set a new rule or clarified the law as it existed when Fiore’s case was decided.

Last August, the Pennsylvania court said its ruling did not set a new rule but ‘merely clarified the plain language of the statute.’

In the case acted on last week, Fiore’s lawyers said upholding his conviction would violate his due-process rights. Prosecutors said Fiore’s conviction should stand because the Pennsylvania court’s 1993 ruling could not be applied retroactively to his case.

But the Supreme Court said retroactivity was not an issue because the Pennsylvania court interpreted the law as it existed when Fiore was convicted.

High Court Says Video Poker Can be Prosecuted

Pittsburgh – The state Supreme Court last week reversed a ruling that made authorities reluctant to prosecute video poker cases, apparently reviving a 10-year-old investigation of a family-owned company.

The Supreme Court opinion in Commonwealth v. Kratsas, PICS Case No. 01-0022 (Pa. Jan. 9, 2000) Saylor, J. (33 pages), overturns a 1998 Superior Court ruling that said it was unconstitutional for state authorities to prosecute George and John Kratsas and Amusement Supply Co. because municipal governments issue licenses and collect fees on the machines.

Following the Superior Court ruling, some prosecutors said they were reluctant to charge video poker operators, because they felt it barred prosecution if local officials knew they were licensing machines that would be used illegally.

George and John Kratsas argued that their due process rights were violated because some forms of gambling are legal in Pennsylvania. They also argued that regulators issued their company permits for poker machines to be used ‘for amusement only’ – even though the local officials knew they would be used for gambling.

The Supreme Court said that doesn’t matter because people in the gaming industry should know that video poker gambling is illegal – even if the conduct of local officials flies in the face of the law.

The 33-page ruling also returned the case to Allegheny County Judge James McGregor, who in 1997 dismissed charges against the Kratsases and the company.

Officials with the state Attorney General’s Office and the Allegheny County District Attorney’s Office declined comment on the ruling or whether the prosecution of the Kratsases will be revived.

The Pennsylvania State Police and the Bureau of Liquor Control Enforcement began an investigation into the Kratsases and Amusement Supply Co. in January 1991.

Authorities alleged the machines were equipped with switches and internal meters that enable credits earned by players to be paid out as monetary prizes.

On Dec. 14, 1993, authorities seized the machines at 11 Allegheny County locations and charged the Kratsases.

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