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United States v. O'Malley

United States Court of Appeals, Seventh Circuit

January 8, 2014

UNITED STATES of America, Plaintiff-Appellee,
Duane L. O'MALLEY, aka BUTCH, Defendant-Appellant.

Argued Nov. 6, 2013.

Page 1002

John E. Childress, Attorney, Office of the United States Attorney, Springfield, IL, Eugene L. Miller, Attorney, Office of the United States Attorney, Urbana, IL, James Jinhan Cha, Attorney, Environmental

Page 1003

Protection Agency Region 5, Office of the Regional Counsel, Chicago, IL, for Plaintiff-Appellee.

Robert T. Ruth, Attorney, Madison, WI, for Defendant-Appellant.

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 mens rea for the Clean Air Act violations of which he was accused: 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 negotiations. We find that the jury was correctly instructed on, and the government proved, the correct mens rea for the violations in question. We also conclude that the district court did not improperly participate in plea negotiations. Consequently, we affirm the judgment of the district court.


Because O'Malley asks us to examine both the factual circumstances of his alleged violations, as well as the conduct bye 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, purchased 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 asbestos-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 system.

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 insulation-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 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 employee that he had requested cash payments from Pinski so " there wouldn't [be] a paper trail." O'Malley and his business 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 prior to beginning the removal, and told O'Malley that " [t]his is probably all asbestos in this building." When O'Malley offered to pay another employee, Virgil Lietz, to help remove insulation from the building, O'Malley told Lietz that the insulation may contain asbestos. Richard Folk, who was also considered for the insulation removal job, recognized the asbestos and told O'Malley that a person needed a license to remove asbestos insulation.

Page 1004

Ultimately, Jeff Franc was hired for the job, and Franc and three workers he recruited stripped dry asbestos insulation 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 wetting 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 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 ...

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