In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 12‐2771
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
DUANE L. O’MALLEY, aka BUTCH,
Defendant‐Appellant.
____________________
Appeal from the United States District Court for the
Central District of Illinois.
No. 2:10‐cr‐20042‐MPM‐DGB‐2 — Michael P. McCuskey, Judge.
____________________
ARGUED NOVEMBER 6, 2013 — DECIDED JANUARY 8, 2014
____________________
Before WOOD, Chief Judge, and FLAUM and TINDER, Circuit
Judges.
TINDER, Circuit Judge. Defendant‐Appellant Duane
“Butch” O’Malley was convicted of removing, transporting,
and dumping asbestos‐containing insulation. A jury was
convinced beyond a reasonable doubt that O’Malley knew
the insulation contained asbestos. O’Malley appeals his
criminal conviction and sentence on two grounds. First, he
argues that the government did not prove the appropriate
2 No. 12‐2771
mens rea for the Clean Air Act violations of which he was ac‐
cused: he argues that the government was required to prove
that O’Malley knew that the asbestos in the building was a
regulated type of asbestos. In the alternative, he asserts that
the district court inappropriately participated in the plea ne‐
gotiations. We find that the jury was correctly instructed on,
and the government proved, the correct mens rea for the vio‐
lations in question. We also conclude that the district court
did not improperly participate in plea negotiations. Conse‐
quently, we affirm the judgment of the district court.
I. BACKGROUND
Because O’Malley asks us to examine both the factual cir‐
cumstances of his alleged violations, as well as the conduct
by the district court, we provide a brief summary of the facts
relating to each.
a. The Removal of Asbestos
In 2005, Michael Pinski, a real estate developer, pur‐
chased a building in Kankakee, Illinois. Prior to the purchase
he had an asbestos survey prepared, which showed that the
building contained approximately 2,200 linear feet of asbes‐
tos‐containing insulation material wrapped around pipes. In
2009, Pinski hired Origin Fire Protection, a company run by
O’Malley, to convert the wet sprinkler system to a dry sys‐
tem.
When touring the building for this project, O’Malley
pointed out the insulation on the pipes in the building and
offered to remove the insulation for an additional payment.
Pinski, reluctant, informed O’Malley that some of the insula‐
tion‐wrapped pipes contained asbestos. O’Malley, however,
convinced Pinski that he would remove the insulation
properly and dispose of it in a proper landfill, and even save
No. 12‐2771 3
Pinski money in the process. O’Malley insisted on a cash
payment for the $12,000 contract price, and provided no
written contract for the insulation removal work, even
though he gave Pinski a written contract for the installation
of the sprinkler system. O’Malley later confided in an em‐
ployee that he had requested cash payments from Pinski so
“there wouldn’t [be] a paper trail.” O’Malley and his busi‐
ness did not hold a license to remove asbestos, and none of
the employees of the company were trained in complying
with federal asbestos regulations.
Almost everyone in the cast of characters recognized the
asbestos for what it was. James Mikrut, one of O’Malley’s
employees, walked through the building with O’Malley pri‐
or to beginning the removal, and told O’Malley that “[t]his is
probably all asbestos in this building.” When O’Malley of‐
fered to pay another employee, Virgil Lietz, to help remove
insulation from the building, O’Malley told Lietz that the in‐
sulation may contain asbestos. Richard Folk, who was also
considered for the insulation removal job, recognized the as‐
bestos and told O’Malley that a person needed a license to
remove asbestos insulation.
Ultimately, Jeff Franc was hired for the job, and Franc
and three workers he recruited stripped dry asbestos insula‐
tion off the pipes using a circular saw and other equipment
provided by O’Malley. O’Malley did not hire anyone with
training in asbestos removal, nor did he train Franc and his
workers in the proper way to remove asbestos. He did not
make available to Franc’s crew water or equipment for wet‐
ting the asbestos. Predictably, the circular saw produced
large amounts of asbestos dust that filled the room. The
workers were equipped only with a few paint suits, simple
4 No. 12‐2771
dust masks, and useless respirators with missing filters. The
workers donned the dust masks initially, but they quickly
became clogged and the workers were unable to breathe
through them. Franc’s crew stopped working after a day or
two because they inhaled a large amount of dust, and they
claimed the dust made them sick. O’Malley did not notify
the federal EPA or the Illinois EPA about the asbestos re‐
moval.
The discarded asbestos insulation was packed into more
than 100 large, plastic garbage bags, which were then loaded
into an Origin Fire Protection dump truck. O’Malley di‐
rected one of his employees, Steven Giles, to transport the
bags to an asbestos‐abatement company called Angel
Abatement, but the company refused to accept the load of
asbestos waste. Thereafter, O’Malley asked Franc to take
some of the bags and dispose of them at an abandoned
farmhouse a couple of miles from O’Malley’s property;
O’Malley also enlisted Lietz to dispose of garbage bags,
which Lietz placed in a dumpster near a Hobby Lobby store.
Franc was instructed to dispose of the remaining asbestos
debris. Lastly, O’Malley instructed Mikrut to take the bags of
asbestos in the Origin Fire Protection truck and get rid of
them. Mikrut and Franc drove the truck to a field in Hopkins
Park, Illinois, where they dropped the bags off at the end of
a road, near a vacant house.
In September 2009, Illinois EPA director Joseph Kotas in‐
spected both the field where the bags of asbestos had been
dumped and the building from which the pipes had been
removed. Kotas observed open and torn bags in the field,
some of the contents spilling out onto the bare ground. EPA
Superfund contractors later spent more than $47,000 to
No. 12‐2771 5
properly remove and dispose of the bags of asbestos and to
clean up the contaminated soil in Hopkins Park.
O’Malley instructed Mikrut that, if Inspector Kotas asked
about the insulation that had been removed, Mikrut should
deny removing the insulation and say all he did was alarm
work. Mikrut indicated that he would comply with this in‐
struction. When the federal EPA’s criminal investigation di‐
vision interviewed Mikrut, however, he admitted to the
truth and agreed to make recorded calls to O’Malley. The
calls revealed O’Malley coaching Mikrut to mislead federal
agents if asked further about the asbestos removal and dis‐
posal. O’Malley also came up with the clever scheme to pin
the illegal asbestos removal on Franc. When confronted by
the agents, O’Malley admitted in a verbal and written state‐
ment that he had failed to stop the illegal asbestos removal
even after he suspected the material was asbestos.
The material was tested and revealed to be friable asbes‐
tos containing a regulated type of asbestos at concentrations
ranging from 4% to 48%.
In June 2010, O’Malley was indicted by a grand jury with
five counts of knowingly violating the criminal provisions of
the Clean Air Act. Pinski and Mikrut pleaded guilty, but
O’Malley informed the court that he wanted a jury trial.
b. Matters at Pretrial Conference
The district court scheduled an acceptance of responsibil‐
ity deadline for O’Malley to plead guilty by August 4, 2011.
On August 4, 2011, O’Malley informed the district court that
he intended to proceed to trial. Before the scheduled final
pretrial conference on September 7, 2011, the government
filed its proposed jury instructions, which included an ele‐
6 No. 12‐2771
ment stating that the United States was required to prove
general intent, specifically that “the defendant knew that as‐
bestos‐containing material was in the building.” The pro‐
posed instructions also included a standard “ostrich instruc‐
tion.” See, e.g., United States v. Westerfield, 714 F.3d 480, 485
(7th Cir. 2013). O’Malley did not object to these instructions
or submit any of his own regarding knowledge. At the jury
instruction conference, O’Malley’s counsel affirmatively
stated that he had “no objection” to the proposed knowledge
instruction. Thereafter, the district court instructed the jury
that, for each of the five counts, the government was re‐
quired to prove that the defendant knew that asbestos‐
containing material was in the building.
The government submitted its initial witness list at the
final pretrial conference on September 7, 2011. On September
16, the government identified an additional witness it in‐
tended to call—Virgil Lietz, an employee that O’Malley had
offered to pay for the asbestos removal. Three days later,
O’Malley moved to exclude the testimony of Lietz, com‐
plaining that his deadline to “accept responsibility” had al‐
ready passed. At a hearing prior to jury selection, the district
court stated that he would be willing to extend O’Malley’s
acceptance of responsibility deadline if Lietz’s disclosure
had caused the defendant to want to plead guilty. O’Malley
declined.
c. Trial and Sentencing
The jury returned guilty verdicts for all five counts of the
indictment. O’Malley filed a motion for a new trial, but did
not object to the general intent instructions or argue for a
specific intent instruction. The district court denied the mo‐
tion and sentenced O’Malley to 120 months of imprison‐
No. 12‐2771 7
ment, three years of supervised release, a $15,000 fine, and
$47,085.70 of restitution to the EPA. The advisory sentencing
guideline range was 121 to 151 months.
II. DISCUSSION
On appeal to this court, O’Malley presents two issues for
review. First, he claims that because the relevant federal law
defines “asbestos‐containing material” as only six types of
regulated asbestos, the government was required to prove
that O’Malley knew that the asbestos in the building was
one of the six forms of regulated asbestos. He asserts that the
government did not present evidence to demonstrate
O’Malley’s knowledge of the type of asbestos in the build‐
ing. Second, he argues that the district court improperly par‐
ticipated in plea negotiations when it offered to extend the
acceptance of responsibility deadline and grant the reduc‐
tion for acceptance if O’Malley entered a guilty plea.
1. Requisite Scienter for Asbestos Crimes
Though O’Malley labels the argument about the requisite
scienter of asbestos crimes as one about the insufficiency of
the evidence, we agree with the government that O’Malley is
actually challenging the district court’s jury instructions on
the mens rea elements of the Clean Air Act. We first briefly
discuss the relevant regulatory scheme, then turn to the ac‐
tual instructions given by the district court.
a. Regulation of Asbestos
O’Malley is correct that not all forms of asbestos are sub‐
ject to regulation. The Clean Air Act authorizes the regula‐
tion of hazardous air pollutants, one of which is asbestos.
“Because asbestos is not typically emitted through a convey‐
ance designed and constructed to emit or capture it, such as
8 No. 12‐2771
a pipe or smokestack, but rather escapes from more diffuse
sources such as open construction or demolition sites, EPA
adopted a work‐practice standard for the handling of asbes‐
tos in building demolition and renovation.” United States v.
Weintraub, 273 F.3d 139, 144 (2d Cir. 2001) (internal quota‐
tion marks and citation omitted). The EPA’s regulations are
the National Emission Standard for Asbestos, 40 C.F.R. §§
61.140‐157. The work practice standard promulgated for the
handling of asbestos applies only to the six types of “regu‐
lated asbestos‐containing material (RACM),” defined as:
(a) Friable asbestos material, (b) Category I
nonfriable ACM that has become friable, (c)
Category I nonfriable ACM that will be or has
been subjected to sanding, grinding, cutting, or
abrading, or (d) Category II nonfriable ACM
that has a high probability of becoming or has
become crumbled, pulverized, or reduced to
powder by the forces expected to act on the
material in the course of demolition or renova‐
tion operations regulated by this subpart.
40 C.F.R. § 61.141.
“Friable asbestos material” is defined as “any material
containing more than 1 percent asbestos as determined using
… Polarized Light Microscopy, that, when dry, can be crum‐
bled, pulverized, or reduced to powder by hand pressure.”
Id. Thus, there is no question that the material in question—
which was both friable and contained asbestos at concentra‐
tions ranging from four percent to forty‐eight percent—was
indeed “regulated asbestos‐containing material.”
No. 12‐2771 9
b. Propriety of Jury Instructions
The Clean Air Act makes it a crime for any person to
“knowingly violate[] any … requirement or prohibition of …
section 7412 [of the Act], … including a requirement of any
rule” promulgated under section 7412 of the Act. 42 U.S.C.
§7413(c)(1). On all five counts, the district court instructed
the jury on the knowledge elements as follows: “The gov‐
ernment must prove … the defendant knew that asbestos‐
containing material was in the building.” Final Jury Instruc‐
tions to jury as to Duane L O’Malley, ECF No. 66, pp. 23–27.
The district court also gave a definition for “regulated asbes‐
tos‐containing material”, stating that it “includes any mate‐
rial containing more than one‐percent (1%) asbestos as de‐
termined using polarized light microscopy that, when dry,
can be crumbled, pulverized, or reduced to powder by hand
pressure.” ECF No. 66, p. 30. This definition applied to a
separate element of the charges: for counts 2, 3, 4, and 5—
two charges of illegal asbestos removal, a charge of illegal
asbestos handling, and a charge of illegal asbestos disposal,
respectively—the government was required to prove that
the renovation activity involved “more than 260 linear feet
on pipes or 35 cubic feet of regulated asbestos‐containing
material.” The scienter requirement was thus separate from
the requirement that the government prove that the asbestos
in question was of the regulated variety.
O’Malley argues that the knowledge element instruction
should have required the government to prove that the de‐
fendant knew that regulated asbestos‐containing material,
not simply asbestos‐containing material, was in the building.
But this cannot be correct. As a general rule, “unless the text
of the statute dictates a different result, the term ‘knowingly’
10 No. 12‐2771
merely requires proof of knowledge of the facts that consti‐
tute the offense.” Bryan v. United States, 524 U.S. 184, 193
(1998) (footnote omitted). The Supreme Court, in United
States v. International Minerals & Chemical Corp., held that the
phrase “knowingly violates” does not “carv[e] out an excep‐
tion to the general rule that ignorance of the law is no ex‐
cuse.” 402 U.S. 558, 563 (1971). The mens rea required by the
phrase is one that is higher than strict liability, such that “[a]
person thinking in good faith that he was shipping distilled
water when in fact he was shipping some dangerous acid
would not be covered.” Id. at 563–64. But it is certainly much
lower than specific intent, especially when, as here, “dan‐
gerous or deleterious devices or products or obnoxious
waste materials are involved,” because “the probability of
regulation is so great that anyone who is aware that he is in
possession of them or dealing with them must be presumed
to be aware of the regulation.” Id. at 565. The very fact that
O’Malley was knowingly working with asbestos‐containing
material met the mens rea requirement outlined in Interna‐
tional Minerals, as asbestos is certainly a dangerous material
of a type where “the probability of regulation is so great that
anyone who is aware that he is in possession of [it] … must
be presumed to be aware of the regulation.” Id.
The application of International Minerals to the asbestos
context is a natural one; it is not a novel construction of law.
See, e.g., United States v. Ho, 311 F.3d 589, 605–06 (5th Cir.
2002) (holding that the scienter required by the Clean Air
Act in the asbestos context is mere knowledge of the pres‐
ence of asbestos); Weintraub, 273 F.3d at 147 (holding that in
the context of asbestos regulations under the Clean Air Act,
“the phrase ‘knowingly violates’ requires knowledge of facts
and attendant circumstances that comprise a violation of the
No. 12‐2771 11
statute, not specific knowledge that one’s conduct is ille‐
gal”); United States v. Buckley, 934 F.3d 84, 99 (6th Cir. 1991)
(holding that the statutory language of the Clean Air Act re‐
quires only general intent, especially in the context of asbes‐
tos).
But it turns out we need not even undertake such a level
of analysis to dismiss O’Malley’s claim. O’Malley did not
challenge the district court’s jury instructions prior to filing
his appellate brief. Indeed, his counsel affirmatively stated
that he had no objection to the government’s proposed jury
instructions at the pretrial conference about the instructions.
“Counsel’s affirmative statement that he had no objection to
the proposed instruction constitutes waiver of the ability to
raise this claim on appeal.” United States v. Kirklin, 727 F.3d
711, 716 (7th Cir. 2013) (quoting United States v. Griffin, 493
F.3d 856, 864 (7th Cir. 2007)) (internal quotation marks omit‐
ted); see also United States v. Natale, 719 F.3d 719, 729 (7th Cir.
2013) (“Although passive silence with regard to a jury in‐
struction permits plain error review, … a defendant’s af‐
firmative approval of a proposed instruction results in waiv‐
er.”) (citations omitted). Because O’Malley failed to object to
the jury instructions in question in the district court, we need
not even reach the plain error review to which the district
court’s instructions would otherwise be subject: review that
would nonetheless lead to the conclusion that the district
court’s instructions on scienter were proper.
2. Propriety of the District Court’s Conduct at the Witness
Exclusion Hearing
O’Malley’s second argument is that the district court par‐
ticipated in plea negotiations, violating Rule 11 of the Feder‐
al Rules of Criminal Procedure. O’Malley’s counsel conced‐
12 No. 12‐2771
ed at oral argument that O’Malley did not object on this
ground in the district court. He did not seek a writ of man‐
damus, seek to have the judge recused or removed, or seek
any other remedy in response to the judge’s alleged unfair‐
ness. Because this issue was not preserved before the district
court, we apply a plain error standard in reviewing the
claim. See United States v. Vonn, 535 U.S. 55, 58 (2002) (“A de‐
fendant who failed to object to trial error may nonetheless
obtain reversal of a conviction by carrying the converse bur‐
den, showing among other things that plain error did affect
his substantial rights.”); see also United States v. Covington,
681 F.3d 908, 910 (7th Cir. 2012) (holding that an argument
raised for the first time on appeal is reviewed only for plain
error). We find that there has been a plain error if we deter‐
mine “(1) that the district court erred; (2) that the error was
plain; and (3) that the error affected [O’Malley’s] substantial
rights.” Covington, 681 F.3d at 910 (citing United States v.
Luepke, 495 F.3d 443, 448 (7th Cir. 2007)).
The context of the exchange that O’Malley characterizes
as judicial impropriety is as follows. On September 21, 2011,
prior to jury selection, the district court considered
O’Malley’s objection to the government’s disclosure on Sep‐
tember 16 that it would be calling Virgil Lietz. The deadline
for disclosing witnesses was unclear: the district court did
not set a deadline requiring parties to file witness lists, and
the government filed its initial witness list on September 7,
2011, prior to the scheduled final pretrial conference date.
But the government supplemented its list on September 16,
after it learned of Lietz’s last name in witness preparation. It
appears Lietz had been a person of interest during the gov‐
ernment’s investigation—when known only by his first
name—and that knowledge of his last name led to finally
No. 12‐2771 13
finding and interviewing him. As soon as the government
decided to call Lietz, the government notified defense coun‐
sel and supplemented the witness list. O’Malley promptly
moved to exclude Lietz’s testimony, asserting in a written
motion that one reason for excluding Lietz was that “[t]he
deadline for the Defendant to ‘accept responsibility’ in this
case has passed.” Def.’s Mot. to Exclude Test., United States
v. O’Malley, No. 10‐CR‐20042 (C.D. Ill. Sep. 19, 2011), ECF
No. 63.
On September 21, the district court heard argument from
both sides about the inclusion of Lietz. The judge asked
O’Malley’s counsel why O’Malley would be prejudiced by
Lietz’s inclusion, when the name was not a surprise to
O’Malley. Counsel responded that O’Malley’s decision to go
to a jury trial or not was made “with the witness list and ex‐
hibit list that the government had tendered by the deadline
and not the current witness list.” The district court expressed
some skepticism at this remark, noting that the acceptance of
responsibility date had in fact passed before the government
had filed its witness list and expressing that O’Malley’s deci‐
sion to change his plea could not have been based on the
witness list. In expressing his incredulity, the district judge
stated,
So, really, Mr. O’Malley’s decision as to
whether he wanted to change his plea came be‐
fore the filing of the witness list and the final
pretrial; but if somehow this is the witness
that’s the tipping point, the witness that if it
had—if we knew he was going to testify, we
would have accepted responsibility long ago
and we never thought he was going to testify,
14 No. 12‐2771
I’d extend the acceptance of responsibility right
now. I’d take an open plea right now, if that’s
what the defendant wishes to do, and give him
acceptance instead of, in effect, sanctioning the
government by striking the witness.
Tr. of Oral Arg. on Mot. to Exclude Gov’t Witness at 10–11,
United States v. O’Malley, No. 10‐CR‐20042 (C.D. Ill. Sep. 21,
2011), ECF No. 84.
Reading the statement in context, it is clear to us that it
was O’Malley, not the district court, who first raised the is‐
sue of the acceptance of responsibility deadline: in the writ‐
ten motion submitted to the court, then again at the hearing.
The court was merely responding to the alleged prejudice—
O’Malley’s ability to choose whether to go to trial—and at‐
tempting to cure it. We can see how the phrasing of the
judge’s statement can appear ambiguous; the statement
could be interpreted as an offer to extend the deadline.
However, on careful reading, it appears the judge was using
the subjunctive. He indicated that in the improbable case
that O’Malley believed his chances at trial were doomed by
the introduction of Lietz, the judge would extend the dead‐
line for acceptance of responsibility to ensure O’Malley had
the opportunity to enter a plea instead of moving forward
with trial. He was, with this hypothetical, calling O’Malley’s
bluff. While we would not present the district court’s state‐
ment as a model of clarity, we believe it is clear that the
judge had no animus against the defendant or an improper
motive in stating that were O’Malley’s concerns real, the
judge would be willing to address them. The statement was
far from an actual, impermissible intervention in plea nego‐
tiations.
No. 12‐2771 15
We conclude that the district court’s conduct at the wit‐
ness exclusion hearing passes plain error review because
there is no evidence that the district judge’s statement affect‐
ed O’Malley’s substantial rights.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s
judgment.