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