United States v. Duane O'Malley
2014 U.S. App. LEXIS 380
| 7th Cir. | 2014Background
- In 2009 defendant Duane “Butch” O’Malley (Origin Fire Protection) arranged removal of pipe insulation from a Kankakee, IL building that was known to contain asbestos; he solicited cash payment and had no asbestos license or trained crew.
- Workers cut friable asbestos insulation with power tools without wetting or proper PPE; material tested as friable regulated asbestos-containing material (4%–48% asbestos).
- O’Malley directed employees to dump bags of asbestos waste at several unauthorized locations; Illinois EPA later discovered torn bags and Superfund contractors spent over $47,000 to remediate.
- O’Malley admitted he suspected the material was asbestos, coached an employee to lie to investigators, and attempted to shift blame to a subcontractor; he was indicted on five criminal counts under the Clean Air Act and went to trial.
- At trial the court instructed the jury that the government need only prove the defendant knew asbestos-containing material was in the building (not that he knew it was a specific "regulated" type); O’Malley was convicted and sentenced to 120 months’ imprisonment, fined, and ordered restitution.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Mens rea required for Clean Air Act asbestos offenses | Gov: knowledge that asbestos-containing material was present suffices | O’Malley: must prove he knew the asbestos was a regulated type (RACM) | Court: affirmed—general knowledge of asbestos presence suffices; jury instruction proper and any objection was waived |
| District court conduct re: plea negotiations | Gov: judge’s remark cured alleged prejudice and did not coerce plea | O’Malley: judge improperly participated by offering to extend acceptance-of-responsibility deadline | Court: no plain error—the judge’s conditional statement remedial, not an impermissible intervention |
Key Cases Cited
- Bryan v. United States, 524 U.S. 184 (explaining that "knowingly" generally requires knowledge of facts constituting the offense)
- United States v. International Minerals & Chemical Corp., 402 U.S. 558 (ignorance of law is no excuse; knowledge of dangerous materials implies awareness of regulation)
- United States v. Weintraub, 273 F.3d 139 (2d Cir.) (in asbestos context, "knowingly" requires knowledge of presence of asbestos, not specific knowledge of illegality)
- United States v. Ho, 311 F.3d 589 (5th Cir.) (Clean Air Act scienter in asbestos cases is knowledge of presence of asbestos)
- United States v. Kirklin, 727 F.3d 711 (7th Cir.) (affirmative approval of jury instruction waives appellate challenge)