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United States v. O'Malley

United States District Court, C.D. Illinois

March 2, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
DUANE O'MALLEY, Defendant.

          ORDER AND OPINION

          James E. Shadid Chief United States District Judge

         This matter is now before the Court on Defendant O'Malley's Motion [286] for Certification of Interlocutory Appeal Pursuant to 28 U.S.C. § 1292(b) and Fed. R. App. P. 5(a)(3). For the reasons set forth below, Defendant's Motion [286] is DENIED.

         Background

         On September 26, 2011, a jury found Duane O'Malley guilty of five counts of knowingly removing, transporting, and dumping asbestos-containing insulation in violation of 42 U.S.C. § 7413(c)(1). Doc. 68. On July 21, 2012, O'Malley was sentenced to 120 months of imprisonment, three years of supervised release, a $15, 000 fine, and $47, 085.70 of restitution to the EPA. Doc. 121. On appeal, O'Malley argued that the Government was required to prove that the Defendant knew the material was regulated asbestos-containing material. The Seventh Circuit affirmed the conviction and sentence, finding that the mens rea standard for a knowing violation of the Clean Air Act's federal asbestos regulations was satisfied where the Government proved that O'Malley knowingly worked with asbestos-containing material. United States v. O'Malley, 739 F.3d 1001 (7th Cir. 2014), cert. denied, 135 S.Ct. 411 (2014).

         While his direct appeal was pending, O'Malley filed a pro se motion for a new trial under Fed. R. Crim. P. 33. Doc. 172. His motion was based on three allegations: (1) the United States bribed codefendant Pinski by secretly agreeing that Pinski would not be liable for the $47, 000 restitution to the EPA superfund, in violation of 18 U.S.C. § 201(c)(2); (2) the United States withheld information regarding Pinski's testimony in a subsequent trial; and (3) the United States “underhandedly worked in collusion with O'Malley's retained appellate counsel Roger Heaton to prevent disclosure of the prosecutorial misconduct address in ‘Claims One and Two.'” Doc. 172, at 10-15. On April 3, 2013, O'Malley supplemented his motion to add a fourth allegation that the United States failed to disclose Pinski's involvement in the state civil proceedings related to his federal criminal charges. Doc. 183. On April 8, 2013, O'Malley again supplemented his motion, raising a sixth claim, that the United States improperly rewarded Pinski for breaching his cooperation agreement. Doc. 186; see also Docs. 188, 190.

         On June 17, 2013, O'Malley, with the assistance of counsel, filed a motion to stay the proceedings on his Rule 33 motion while counsel investigated whether new evidence existed that would warrant a new trial. Doc. 195. On June 19, 2013, the Court issued an opinion denying the motion to stay and advising O'Malley that his Rule 33 motion would be treated as a motion under 28 U.S.C. § 2255. Doc. 196. O'Malley withdrew that motion, but after his counsel withdrew from the case, he filed another pro se motion for new trial under Rule 33 on March 31, 2014. Doc. 209. In an opinion issued on May 28, 2014, the Court denied O'Malley's motion as it related to his third claim and construed his first and second claims as a motion under § 2255. Doc. 216. O'Malley appealed that decision and the subsequent denial of his motion to reconsider on August 1, 2014. Doc. 224.

         On September 22, 2016, the Seventh Circuit issued a mandate vacating the Court's ruling and allowing O'Malley to proceed under Rule 33. United States v. O'Malley, No. 14-2711 (7th Cir. 2016). On October 6, 2016, the Court reopened O'Malley's Rule 33 motion, allowed him to file a supplement to the motion, and scheduled a motion hearing. On October 20, 2016, O'Malley filed a “Supplemental Rule 33 Pleading Recognizing Structural Error, Per Se.” Doc. 265. That pleading raised two more issues: the Court's June 19, 2013 order was “structural error” that warrants a new trial, and newly discovered evidence shows that Defendant is actually innocent. On October 21, 2016, the Court held a status conference where O'Malley indicated that he had one additional filing to supplement his Rule 33 pleading. The Court directed O'Malley to file his supplement to documents 172, 183, 185, 186, 190, and 265 within 21 days. After granting two prior extensions of time for O'Malley to file the supplement, the Court granted O'Malley a third extension of time on January 3, 2017. That order noted that O'Malley had filed 6 other motions seeking to compel, enjoin, requesting discovery, and requesting release, and informed O'Malley that it would not consider those motions until he submitted his supplemental filing and the Government responded.

         On January 17, 2017, O'Malley filed his fourth motion for extension of time. Doc. 277. The Court denied O'Malley's request, noting that he had used the previous extensions of time to file various other motions. See Jan. 17, 2017 Text Order (“In sum, [Defendant] has had almost 90 days to file his Supplement, which was simply to consolidate all the addenda to his Rule 33 Motion into one document. Accordingly the Court finds that no future extensions are warranted and Orders the Government to Respond to Defendant's Rule 33 Motion [172] and supporting Addenda [183] [185 [186] [188] [190] [265] within 21 days of this Order.”). On January 31, 2017, while the United States was preparing its response to the Rule 33 motion, O'Malley filed a “Motion for Leave to File Belated Consolidated Rule 33 Motion and Request to Extend Time to Add Necessary Documents, ” “Defendant's Supplement to his Pre-Appeal Ruling Rule 33(b)(1) Motion for New Trial Under # 172, 183, 185, 186, 188, 190, and 265, ” and five “books.” Docs. 278-84. The Court directed the United States to respond to O'Malley's motion for leave to file, and the response was docketed on February 7, 2017. Doc. 285. In its response, the United States opposed O'Malley's request for leave to file. Id. (“The petitioner's repeated filings failed to comply with this Court's previously imposed time deadlines and many issues raised therein are far outside the scope of the remand to consider defendant's previously filed motion for a new trial under Rule 33 of the Federal Rules of Criminal Procedure.”). The Court denied O'Malley's motion and ordered the Government to file its response to the Rule 33 motion by February 15, 2017. On February 15, 2017, the Government filed its response (Doc. 287) and O'Malley filed a “Motion for Certification of Interlocutory Appeal Pursuant to 28 U.S.C. § 1292(b) and Fed. R. App. P. 5(a)(3).” Doc. 286.

         Legal Standard

         “Federal appellate jurisdiction generally depends on the existence of a decision by the District Court that ‘ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.'” Coopers & Lybrand v. Livesay, 437 U.S. 463 (1978); 28 U.S.C. § 1291. However, an exception to this general rule exists when a preliminary or interim disposition qualifies as a “collateral order, ” i.e., when it “(1) “conclusively determine[s] the disputed question, ” (2) “resolve[s] an important issue completely separate from the merits of the action, ” and (3) is “effectively unreviewable on appeal from a final judgment.” Sell v. United States, 539 U.S. 166, 176 (2003) (citing Coopers, 437 U.S. at 468).

         The Federal Rules of Appellate Procedure set forth the procedure for petitioning for permission to appeal. See Fed. R. App. P. 5. When an appeal is within the court of appeals' discretion, a party must file a petition for permission to appeal. Fed. R. App. P. 5(a). In instances where a party may not petition for appeal unless a district court first enters an order granting permission to do so, the district court may, when appropriate, amend its order to include the required permission. Fed. R. App. P. 5(a)(3).

         Analysis

         Defendant O'Malley's “Motion for Certification of Interlocutory Appeal Pursuant to 28 U.S.C. § 1292(b) and Fed. R. App. P. 5(a)(3)” requests that this Court certify an interlocutory appeal of the Court's text order of February 8, 2017. See Doc. 286. As recited above, that order denied O'Malley's request for “Leave to File Belated Consolidated Rule 33 Motion and Request to Extend Time to Add Necessary Documents, ” which itself related to the Court's January 17, 2017 denial of O'Malley's fourth motion for extension of time to file his supplement to his Rule 33 Motion. See Doc. 277, 278. The instant Motion asserts that the Court abused its discretion in denying O'Malley's motion for leave to file. O'Malley argues that he should be granted permission to appeal because the Court's denial of his motion for leave to file prevents him from introducing newly discovered ...


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