United States v. O'Malley, 14–2711

• Decision Date: 17 August 2016
• Docket Number: No. 14–2711,14–2711
• Parties: United States of America, Plaintiff–Appellee, v. Duane L. O'Malley, Defendant–Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

833 F.3d 810

United States of America, Plaintiff–Appellee,
v.
Duane L. O'Malley, Defendant–Appellant.

No. 14–2711

United States Court of Appeals, Seventh Circuit.

Argued May 19, 2016
Decided August 17, 2016

Eugene L. Miller, Katherine Virginia Boyle, Office of the United States Attorney, Urbana, IL, for Plaintiff–Appellee.

833 F.3d 811

Vanessa K. Eisenmann, Michelle L. Jacobs, Biskupic & Jacobs, S.C., Mequon, WI, for Defendant–Appellant.

Before Wood, Chief Judge, and Posner and Rovner, Circuit Judges.

Rovner, Circuit Judge.

Duane “Butch” O'Malley is serving ten years in prison for violating the Clean Air Act by improperly removing and disposing of insulation containing regulated asbestos. See 42 U.S.C. § 7413(c)(1) ; 40 C.F.R. §§ 61.145, 61.149, 61.150, 61.154. After we upheld his convictions on direct appeal, United States v. O'Malley , 739 F.3d 1001 (7th Cir. 2014), O'Malley filed in the district court what he dubbed a motion under Federal Rule of Criminal Procedure 33(b)(1) for a new trial based on newly discovered evidence. That rule authorizes a district court to grant a timely request for a new trial “if the interest of justice so requires.” FED. R. CRIM. P. 33(a). The district court concluded that O'Malley's submission contains constitutional theories that, the court reasoned, are incompatible with Rule 33 and cognizable only under 28 U.S.C. § 2255. And the remainder of O'Malley's motion could not entitle him to relief under Rule 33, the court added, because the new evidence is not material. We conclude that the entirety of O'Malley's submission falls within the scope of Rule 33(b)(1) even if his theories overlap with § 2255, and that the district court should have respected his choice between these available means of relief. We thus vacate the district court's decision and remand for further proceedings.

I. BACKGROUND

The facts of this case and the challenges O'Malley raised on direct appeal are described fully in our earlier opinion, O'Malley , 739 F.3d at 1003–06, but we provide a brief summary as necessary to understand the current appeal. Michael Pinski hired O'Malley's company to replace the sprinkler system in a building that Pinski knew to have asbestos. O'Malley offered to remove the insulation for an additional cost and, after Pinski's warning that some of it contained asbestos, assured Pinski that he would remove and dispose of the insulation properly. One of O'Malley's employees, James Mikrut, cautioned O'Malley that the building was “probably all asbestos” and another said that O'Malley needed a license to remove asbestos. O'Malley eventually hired four people for the job, and they wore light protective equipment while using a circular saw to strip dry insulation off the pipes, producing large amounts of asbestos dust. An asbestos-abatement company refused to accept the discarded asbestos insulation, so Mikrut and two other employees dumped garbage bags full of insulation in an abandoned farmhouse, a store dumpster, and a field near a vacant house. Inspections by the Environmental Protection Agency and its Illinois counterpart eventually led to O'Malley's confession that he had not halted the work even after suspecting the material to be asbestos. Testing confirmed the material to be a regulated type of asbestos at high concentrations. O'Malley, Pinski, and Mikrut were indicted in June 2010. Pinski and Mikrut pleaded guilty and testified against O'Malley at his jury trial in September 2011. On direct appeal O'Malley principally argued that, because not all asbestos is regulated, the government had failed to prove that he knew the building contained regulated asbestos. We rejected that argument, concluding that asbestos is so dangerous and the probability of regulation is so great that anyone working with the material would be presumed to know the applicable regulations. Id . at 1007 (citing United States v. Int'l Minerals & Chem. Corp. , 402 U.S. 558, 565, 91 S.Ct. 1697, 29 L.Ed.2d 178 (1971) ).

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Two months after our decision, O'Malley (proceeding pro se) filed what he labeled as a motion under Rule 33 seeking a new trial based on newly discovered evidence.¹ O'Malley asserted that, through a posttrial demand under the Freedom of Information Act and other “investigative work,” he had obtained new evidence that discredited Pinski, who was critical to establishing O'Malley's knowledge of the asbestos. O'Malley separated the new evidence into three groups: (1) information withheld from him at the time of trial about Pinski's ongoing cooperation with federal authorities investigating Pinski's involvement in organized crime; (2) correspondence and agreements between Pinski and the Illinois EPA, which, O'Malley says, demonstrate that Pinski steered him to violate the Clean Air Act unintentionally; and (3) an appraisal of Pinski's property done after the asbestos removal that, O'Malley asserts, contradicts Pinski's trial testimony.

The district court first addressed O'Malley's motion in May 2014. The court, following O'Malley's lead, separated the evidence into the same three groups and then denied “claim three” (the property appraisal) under Rule 33. The court reasoned that the appraisal, even if previously unavailable to O'Malley, would have been “merely impeaching or cumulative” and unlikely to lead to acquittal. As for the other two “claims,” however, the district court concluded that O'Malley could proceed only under § 2255. The court determined that Rule 33 motions based on newly discovered evidence are limited to situations in which (1) the new evidence establishes actual innocence and (2) the manner in which the new evidence came to light after trial does not suggest a constitutional violation. Although it was only for the first category of evidence that O'Malley had invoked Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and Giglio v. United States , 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), the district court concluded that Brady and Giglio applied to the second category as well and that O'Malley was relegated to raising both in a motion to vacate his sentence under § 2255 rather than a motion under Rule 33. The court gave O'Malley a deadline either to withdraw the motion or, if he preferred, amend it to include any other available § 2255 claims. See Castro v. United States , 540 U.S. 375, 383, 124 S.Ct. 786, 157 L.Ed.2d 778 (2003).

O'Malley moved for reconsideration, insisting that his submission, in its entirety, is a bona fide Rule 33 motion. He also asserted that he is innocent and that the new evidence establishes that he did not “knowingly” deal with regulated asbestos. He pressed for a new trial or at least an evidentiary hearing, under Rule 33, on all three of his assertions of newly discovered evidence. In the alternative, O'Malley requested more time to amend his submission if the district court was inflexible about construing part of it as a § 2255 motion. In June 2014 the district court entered a “text order” denying all relief and noting that the first and second “claims” would be deemed withdrawn

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“without prejudice to bringing them, and any other applicable collateral claims, as a properly filed [§] 2255 motion within the applicable limitations period.”²

II. ANALYSIS

O'Malley argues that the district court erred in concluding that his postjudgment motion is not a legitimate Rule 33 motion, and instead must be a § 2255 motion, to the extent that it relies on Brady and Giglio.³ Although Rule 33 decisions typically are reviewed for abuse of discretion, see United States v. Berg , 714 F.3d 490, 500–01 (7th Cir. 2013) ; United States v. Palivos , 486 F.3d 250, 255 (7th Cir. 2007), we review de novo the legal issue whether a claim is cognizable in a Rule 33 motion, see United States v. Lawson , 810 F.3d 1032, 1042 (7th Cir. 2016) ; United States v. Knope , 655 F.3d 647, 660 (7th Cir. 2011).

We conclude that a postjudgment motion based on newly discovered evidence which happens to invoke a constitutional theory can be brought under Rule 33(b)(1) or § 2255, and thus O'Malley should have been allowed to choose the procedural vehicle. First, nothing in the text of Rule 33 excludes claims of newly discovered evidence that rely on a constitutional theory, such as the rule of Brady and Giglio. Rather a district court may “grant a new trial if the interest of justice so requires.” FED. R. CRIM. P. 33(a) ; see United States v. Peterson , 823 F.3d 1113, 1122 (7th Cir. 2016). A time constraint is the only textual limit in the rule, and O'Malley's motion resting on newly discovered evidence was timely filed within three years of...