May 19, 2016
from the United States District Court for the Central
District of Illinois. No. 10-cr-20042-002 James E. Shadid,
WOOD, Chief Judge, and POSNER and ROVNER, Circuit Judges.
ROVNER, Circuit Judge.
"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
facts of this case and the challenges O'Malley raised on
direct appeal are described fully in our earlier opinion,
O'Malley, 739F.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 (1971)).
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. 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.
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 (1963), and Giglio v.
United States, 405 U.S. 150 (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 (2003).
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 "without
prejudice to bringing them, and any other applicable
collateral claims, as a properly filed [§] 2255 motion
within the applicable limitations period."
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. 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).
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 his trial. See Fed. R. Crim. P.
33(b)(1). We have explained that, under Rule 33(b)(1), the
"interest of justice" requires a new trial if
additional evidence (1) was discovered after trial, (2) could
not have been discovered sooner through the exercise of due
diligence, (3) is material and not merely impeaching or
cumulative, and (4) probably would have led to acquittal.
See United States v. Westmoreland, 712 F.3d 1066,
1072 (7th Cir. 2013); United States v. Hagler, 700
F.3d 1091, 1101 (7th Cir. 2012); United States v.
Reyes, 542 F.3d 588, 595 (7th Cir. 2008). And, like our
sister circuits, we routinely evaluate Brady,
Giglio, and other constitutional claims that were raised
in postjudgment Rule 33(b)(1) motions. See, e.g., United
States v. Salem, 578F.3d 682, 685-90 (7th Cir. 2009)
(Brady claim); United States v. L.E. Myers
Co., 562 F.3d 845, 852, 856 (7th Cir. 2009)
(Brady claim); United States v. Ervin, 540
F.3d 623, 630-32 (7th Cir. 2008) (Brady claim);
United States v. Calderon, No. 15-1652, 2016 WL
3854228, at *4 (1st Cir. July 15, 2016) (Brady and
Giglio claim); United States v. Rafidi, No.
15-4095, 2016 WL 3670273, at *6 (6th Cir. July 11, 2016)
(Brady claim); United States v. Schneider,
801 F.3d 186, 201-02 (3d Cir. 2015) (Brady claim);
United States v. Bowen, 799 F.3d 336, 351-52 (5th
Cir. 2015) (claim of prosecutorial misconduct); United
States v. Parse, 789F.3d 83, 108-110 (2d Cir. 2015)
(claim of juror bias); United States v.
Flores-Rivera, 787 F.3d 1, 15-16 (1st Cir. 2015)
(Brady claim); United States v. Isaacson,
752F.3d 1291, 1309 (11th Cir. 2014) (Brady claim);
United States v. Hoyle, 751 F.3d 1167, 1171 (10th
Cir. 2014) (Brady claim); United States v.
Battles, 745 F.3d 436, 446-47 (10th Cir. 2014)
(Brady claim); United States v. Sessa, 711
F.3d 316, 321 (2d Cir. 2013) (Brady claim);
United States v. Moore, 709F.3d 287, 292-93 (4th
Cir. 2013) (Brady claim); United States v.
Rubashkin, 655 F.3d 849, 857-58 (8th Cir. 2011) (claim
of judicial bias); United States v. Robinson, 627
F.3d 941, 948-52 (4th Cir. 2010) (Brady claim and
claim of police misconduct).
the district court held that O'Malley "is seeking
relief that he can only obtain through § 2255, "
relying on our decisions in United States v. Evans,
224 F.3d 670 (7th Cir. 2000), Ruth v. United States,
266 F.3d 658 (7th Cir. 2001), and United States v.
Rollins, 607 F.3d 500 (7th Cir. 2010), for the
proposition that Rule 33 does not authorize a postjudgment
motion based on newly discovered evidence except when that
evidence implies the defendant's actual innocence and
came to light after trial in a manner not suggesting a
constitutional violation. That reliance is mistaken. Those
decisions, which analyze some of the interplay between Rule
33 and § 2255, do not purport to define the outer limits
of claims that can be brought under Rule 33.
in Evans we concluded that a legitimate,
postjudgment claim of actual innocence based on newly
discovered evidence would fall within the scope of Rule 33
but not § 2255. 224 F.3d at 672-74. We reasoned that
motions to vacate under § 2255 are limited to claims
that the defendant's conviction or sentence was obtained
in violation of the Constitution or a statute, and thus
relief under § 2255 may not be available absent a
constitutional or statutory error even if new evidence shows
a factual injustice. See id. at 673-74; see also
McQuiggin v. Perkins,133 S.Ct. 1924, 1931-32 (2013)
(explaining that, although the Supreme Court has not yet
recognized right to habeas relief based on standalone
innocence claim, actual innocence may excuse procedural
default of underlying claim); but see United States v.
Berry,624F.3d 1031, 1040 n.5 (9th Cir. 2010) (noting
that Ninth Circuit recognizes freestanding innocence claim
under § 2255). In Evans, though, we did not
hold that an assertion of actual innocence is
essential to a Rule 33 motion. A theory that newly
discovered evidence establishes the defendant's innocence
is one, not the only, theory that would support relief under
Rule 33, as the rule encompasses all claims based on newly
discovered evidence which likely would lead to acquittal
whether or not because of actual innocence. See United
States v. Woods,169 F.3d 1077, 1078 (7th Cir. 1999)
(recognizing that Rule 33 would also be ground for retrial if
newly discovered evidence "would lead to the suppression
of critical evidence, and thus to the acquittal of a person
who actually committed the crime"); United States v.
Jordan,806F.3d 1244, 1252 (10th Cir. 2015) (newly
discovered evidence under Rule 33 must be "of such a
nature that in a new trial it would probably produce an
acquittal" (quoting United States v.
McCullough,457F.3d 1150, 1167 (10th Cir. 2006));
Bowen, 799 F.3d at 349 (newly discovered evidence
under Rule 33 "may be relevant to any controlling issue
of law" and "need not relate only to guilt or
innocence"); Weaver v. United States, 793 F.3d
857, 863 (8th Cir. 2015) ("When newly discovered
evidence is the ground for a § 2255 motion, the district
court should apply the same substantive test which governs a
motion for a new trial under Fed. R. Crim. P. 33 premised
upon the same ground." ...