In the
United States Court of Appeals
For the Seventh Circuit
No. 10-2438
U NITED STATES OF A MERICA,
Plaintiff-Appellee,
v.
M ICHAEL P HILLIPS,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 1:09-cr-00201-WCG-1—William C. Griesbach, Judge.
A RGUED F EBRUARY 11, 2011—D ECIDED JUNE 17, 2011
Before B AUER, P OSNER and W ILLIAMS, Circuit Judges.
B AUER, Circuit Judge. Michael Phillips pleaded guilty
to removing and disposing of asbestos in violation of 42
U.S.C. § 7413(c)(1) but reserved his right to appeal the
meaning of “knowingly,” as it is used in § 7413(c)(1).
The district court judge sentenced Phillips to eighteen
months of imprisonment, three years of supervised
release, $12,765 in restitution, and a $100 special assess-
ment fee. For the following reasons, we affirm.
2 No. 10-2438
I. BACKGROUND
Michael Phillips owned and managed an apartment
building in New London, Wisconsin. In 2007, Phillips
hired Jeff DeCareau to remove asbestos insulation and
renovate the building’s heating system. DeCareau had
no experience, training, or expertise in asbestos removal,
but Phillips hired him because his rates were “really
cheap.” Phillips also hired two tenants, Sandy Kurth
and Molly Dumas, who agreed to assist DeCareau in
exchange for a reduction in rent.
DeCareau, Kurth, and Dumas removed the asbestos
insulation with a Sawzall, an electronic hand-held saw
with a large oscillating blade. Although the use of the
Sawzall created a great deal of asbestos dust and
debris, the workers did not wear face masks or protective
clothing. They also did not wet the insulation before
cutting it, confine the dust and debris to a limited area,
or store the asbestos insulation in sealed containers. In
fact, they kept the asbestos insulation in a vacant apart-
ment and the piping (which was also covered in asbes-
tos) in a common hallway and a shared garage. A profes-
sional trained in asbestos removal would have done
none of the above. When the Department of Natural
Resources and the Environmental Protective Agency
were alerted to this project, they inspected the building
and determined that the air was heavily laden with
asbestos fibers. Both agencies agreed that no person
could safely live in the building, and all tenants were
ordered to move out.
Phillips was involved throughout the entire renova-
tion project. He visited the building almost daily, helped
No. 10-2438 3
remove piping and asbestos insulation, and knew that
the Sawzall created a large quantity of asbestos dust
and debris. While he denies knowing that asbestos is
harmful, much of the evidence is to the contrary.
II. DISCUSSION
Phillips entered into a conditional plea agreement
whereby he pleaded guilty to illegally removing and
disposing of asbestos insulation but reserved his right
to appeal the knowledge requirement of § 7413(c)(1).
For the first time on appeal, Phillips also challenges
§ 7413(c)(1) as unconstitutionally vague in application.
A. Phillips’ Motion to Dismiss the Indictment
Phillips contends that the term “knowingly,” as it is used
in § 7413(c)(1), requires the government to prove not
only that Phillips was aware of the underlying facts of
the crime, but also that he knew his actions were unlaw-
ful. Because the indictment alleged the former but not
the latter, Phillips moved to dismiss the indictment as
insufficient. The district court denied this motion, and
we review the court’s ruling de novo. See United States
v. White, 610 F.3d 956, 958 (7th Cir. 2010).
Although Phillips’ argument has been soundly re-
jected by other courts,1 we need not address the meaning
1
See e.g., United States v. Alghazouli, 517 F.3d 1179, 1192 (9th
Cir. 2008); United States v. Rubenstein, 403 F.3d 93, 97-98 (2d Cir.
(continued...)
4 No. 10-2438
of “knowingly” in order to resolve this appeal. The ques-
tion before us is narrow: whether the district court prop-
erly denied Phillips’ motion to dismiss the indictment.
In order for an indictment to be sufficient, it must
identify the elements of the crime, fairly inform the de-
fendant of the charge so that he may prepare a defense,
and enable the defendant to evaluate any double
jeopardy problems. See Hamling v. United States, 418
U.S. 87, 117-18 (1974); United States v. Glecier, 923 F.2d
496, 499 (7th Cir. 1991). We have consistently held that
nothing more is required. See e.g., United States v.
Donelson, 326 Fed. Appx. 938, 940 (7th Cir. 2009). Phillips
nevertheless argues that the indictment must also define
“knowingly,” and by that logic, every other element of
the crime. We disagree. Phillips has cited no case law in
support of this argument nor articulated any reason
why the elements of a crime are more properly defined
in the indictment, as opposed to the jury instructions.
Our research reveals none. We therefore hold that even
if Phillips’ interpretation of “knowingly” were correct,
the district court properly dismissed Phillips’ motion
to dismiss the indictment.
(...continued)
2005); United States v. Ho, 311 F.3d 589, 605-06 (5th Cir. 2002);
United States v. Weintraub, 273 F.3d 139, 147 (2d Cir. 2001);
United States v. Buckley, 934 F.2d 84, 88 (6th Cir. 1991). Cf. Bryan
v. United States, 524 U.S. 184, 194 (1998) (stating the tradi-
tional rule that “ignorance of the law is no excuse”); United
States v. Useni, 516 F.3d 634, 654 (7th Cir. 2008) (articulating
the typical definition of “knowingly”).
No. 10-2438 5
B. Phillips’ As-Applied Vagueness Challenge
Phillips contends that § 7413(c)(1) is unconstitu-
tionally vague as-applied to the facts of his case. Phillips
pleaded guilty, however, without ever challenging the
validity of the statute in the lower court or reserving his
right to do so on appeal. Whether Phillips waived his
vagueness challenge is an issue of first impression. Con-
sistent with every court that has addressed this issue,2
we now hold that a defendant who pleads guilty
2
See United States v. Ochoa-Colchado, 521 F.3d 1292, 1299 (10th
Cir. 2008); United States v. O’Dell, 118 Fed. Appx. 256, 257 (9th
Cir. 2004); United States v. Lasagna, 328 F.3d 61, 63-64 (2d Cir.
2003); United States v. Martinez-Martinez, 69 F.3d 1215, 1224 & nn.
9-10 (1st Cir. 1995); United States v. Burke, 694 F.2d 632, 634 (9th
Cir. 1982); United States v. Sandsness, 988 F.2d 970, 971-72 & n.2
(9th Cir. 1993). See generally United States v. Kapenekas, 2011 WL
666915, *1 (5th Cir. 2011); United States v. Jacobson, 2011 WL 69115
(8th Cir. 2011); United States v. Seay, 620 F.3d 919, 922 & n.3 (8th
Cir. 2010); United States v. Feaster, 394 Fed. Appx. 561, 564 (11th
Cir. 2010); United States v. Ramirez-Nicholas, 179 Fed. Appx. 917,
918 (5th Cir. 2006); United States v. Urquilla-Avalos, 144 Fed.
Appx. 447 (5th Cir. 2005); United States v. Morgan, 230 F.3d 1067,
1071 (8th Cir. 2000); Alikhani v. United States, 200 F.3d 732, 734-35
(11th Cir. 2000). Cf. United States v. Donovan, 2011 WL 549676, *2
(7th Cir. 2011); United States v. Kingcade, 562 F.3d 794, 797 (7th
Cir. 2009) ; United States v. Lacey, 569 F.3d 319, 323 (7th Cir. 2009);
United States v. Martin, 147 F.3d 529, 531-32 (7th Cir. 1998);
Gilbert v. United States, 1997 WL 312278, *1-2 (7th Cir. 1997);
United States v. Bell, 70 F.3d 495, 497 (7th Cir. 1995); United States
v. Nash, 29 F.3d 1195, 1201 (7th Cir. 1994); United States v.
Markling, 7 F.3d 1309, 1312-13 (7th Cir. 1993); United States
v. Seybold, 979 F.2d 582, 585 (7th Cir. 1992).
6 No. 10-2438
without raising an as-applied vagueness challenge in
the trial court is barred from raising that issue on appeal.
As a general rule, a defendant who pleads guilty
waives his right to appeal all non-jurisdictional issues.
See e.g., United States v. Martin, 147 F.3d 529, 531-32 (7th
Cir. 1998). Rule 11 of the Federal Rules of Criminal Pro-
cedure creates a narrow exception: upon the approval of
the court and the consent of the government, a defendant
may enter a conditional plea, “reserving in writing the
right to have an appellate court review an adverse deter-
mination of a specified pretrial motion.” Fed. R. Crim.
P. 11. This exception is narrow because all non-jurisdic-
tional issues not specifically reserved in the condi-
tional plea agreement remain waived. United States v.
Kingcade, 562 F.3d 794, 797 (7th Cir. 2009). Accordingly,
Phillips may raise an as-applied vagueness challenge
for the first time on appeal only if it is jurisdictional.
The term “jurisdictional” refers to a court’s statutory
or constitutional authority to hale the defendant into
court; it does not refer to subject matter jurisdiction.
Blackledge v. Perry, 417 U.S. 21, 30 (1974); Bell, 70 F.3d at
497. A jurisdictional issue is one that stands in the way
of conviction—even when factual guilt is validly estab-
lished—and prevents a court from entering any judg-
ment in the case, including an acquittal. See Blackledge,
417 U.S. at 30; Donovan, 2011 WL 549676, at *2; Lacey,
569 F.3d at 323; Alikhani, 200 F.3d at 734-35; United States
v. Johnston, 199 F.3d 1015, 1020 n.3 (9th Cir. 1999).
Whether the issue concerns a statutory or constitutional
violation is immaterial because even constitutional viola-
No. 10-2438 7
tions “not logically inconsistent with the valid establish-
ment of factual guilt” are non-jurisdictional and thus
waived unless explicitly reserved for appeal in a condi-
tional plea agreement. Bell, 70 F.3d at 496 (quoting
Menna v. New York, 423 U.S. 61, 63 n.2 (1975)).
While a facial attack on a statute’s constitutionality
is jurisdictional, an as-applied vagueness challenge is
not. A facially vague statute presents a jurisdictional
issue because it is by definition vague in every applica-
tion, preventing a court from entering a judgment
under the statute in any case and stripping the govern-
ment of its ability to obtain a conviction against any
defendant. See Blackledge, 417 U.S. at 30; Donovan, 2011
WL 549676, at *2. Unlike a facial challenge, an as-
applied challenge does not dispute the court’s power to
hear cases under the statute; rather, it questions the
court’s limited ability to enter a conviction in the case
before it. Indeed, a statute that is vague only as-applied
to the defendant may still be constitutional as-applied
to others, and it thus does not strip the court of its
power to enter a judgment under the statute or deprive
the government of authority to seek a conviction under
the statute. See Blackledge, 417 U.S. at 30; Johnston, 199
F.3d at 1020 n.3. Stated otherwise, an as-applied chal-
lenge is a non-jurisdictional issue because, even if the
challenge is successful, it will not leave the court
without any power to hale a defendant into court under
the statute. See Menna, 423 U.S. at 62; Blackledge, 417 U.S.
at 30; Donovan, 2011 WL 549676, at *2.
Furthermore, when we are presented with an as-
applied challenge, we examine only the facts of the case
8 No. 10-2438
before us and not any set of hypothetical facts under
which the statute might be unconstitutional. See Sands-
ness, 988 F.2d at 972 n.2; United States v. Stephenson, 557
F.3d 449, 456 (7th Cir. 2009). The plea agreement, which
contains the facts of the case, is thus of critical impor-
tance. See Sandsness, 988 F.2d at 972 n.2.
A guilty plea is more than a mere confession; a de-
fendant who pleads guilty admits not only that he com-
mitted the acts described in the indictment but also that
he is guilty of the substantive offense. See United States
v. Broche, 488 U.S. 563, 570 (1989). Having already
admitted guilt of the substantive crime and affirmed as
true the underlying facts of the conviction, the de-
fendant can no longer re-argue the facts on appeal and
challenge the statute as vague in application. Therefore,
while a facial vagueness challenge is jurisdictional, an as-
applied vagueness challenge is non-jurisdictional and
waived unless specifically reserved for appeal in a condi-
tional plea agreement. Phillips is thus barred from as-
serting an as-applied vagueness challenge for the first
time on appeal. We A FFIRM the judgment of the district
court.
6-17-11