United States Court of Appeals 

For the Seventh Circuit 

Chicago, Illinois 60604 

Submitted February 26, 2019 

Decided February 27, 2019 

Before 

MICHAEL B. BRENNAN, Circuit Judge 

MICHAEL Y. SCUDDER, Circuit Judge 

AMY J. ST. EVE, Circuit Judge

No. 18-1617 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

v. 

DUANE L. O’MALLEY, 

 Defendant-Appellant.

 Appeal from the United States District 

Court for the Central District of Illinois. 

No. 10-20042-002 

James E. Shadid, 

Chief Judge. 

O R D E R 

Duane “Butch” O’Malley was convicted after a jury trial of removing, handling, 

and disposing of insulation that he knew contained regulated asbestos without 

licensing, training, equipment, or authorization to do so, in violation of the Clean Air 

Act, see 42 U.S.C. § 7413(c)(1). He was sentenced to 10 years in prison, below the 

Sentencing Guidelines recommended range. We affirmed his conviction. See United 

States v. O'Malley, 739 F.3d 1001 (7th Cir. 2014) (O’Malley I). He then moved for a new 

trial in light of newly discovered evidence that, he says, would impeach Michael Pinski, 

who had testified at trial that he warned O’Malley that the insulation contained 

asbestos. See FED. R. CRIM. P. 33. (We described that evidence in United States v. 

O’Malley, 833 F.3d 810, 812 (7th Cir. 2016) (O’Malley II)). Chief Judge Shahid denied the 

motion because, in his view, O’Malley should have brought the evidence under 

28 U.S.C. § 2255. We vacated that decision and remanded the case for the judge to 

NONPRECEDENTIAL DISPOSITION 

To be cited only in accordance with Fed. R. App. P. 32.1 
No. 18-1617 Page 2 

reconsider O’Malley’s motion under Federal Rule of Criminal Procedure 33. 

See O’Malley II, 833 F.3d at 816. The judge denied the motion on the merits, and 

O’Malley appealed. 

O’Malley’s appointed counsel asserts that the appeal is frivolous and moves to 

withdraw. See Anders v. California, 386 U.S. 738 (1967). When a defendant moves for a 

new trial before taking a direct appeal, he has a right to counsel on appeal with respect 

to that motion. See Kitchen v. United States, 227 F.3d 1014, 1018 (7th Cir. 2000). Before we 

resolved O’Malley’s direct appeal, he filed a motion for a new trial that is similar to the 

one now before us. Therefore, we will assume that he has a right to counsel on this 

appeal and apply the Anders safeguards. See United States v. Wheeler, 814 F.3d 856, 857 

(7th Cir. 2016) (applying Anders framework even when defendant had no right to 

counsel). Counsel’s submission explains the nature of the case and describes the issues 

that the appeal would involve. Her analysis appears thorough, so we limit our review 

to the topics she discusses and those that O’Malley raises in response. See United States 

v. Bey, 748 F.3d 774, 776 (7th Cir. 2014); CIR. R. 51(b). 

Counsel considers challenging only the judge’s denial of O’Malley’s motion for a 

new trial. A district judge may grant a defendant’s motion for a new trial “if the interest 

of justice so requires,” FED. R. CRIM. P. 33(a), that is, when “additional evidence (1) was 

discovered after trial, (2) could not have been discovered sooner ..., (3) is material and 

not merely impeaching or cumulative, and (4) probably would have led to acquittal,” 

O’Malley II, 833 F.3d at 813. We would review the judge’s decision to deny the motion 

for a new trial for an abuse of discretion. See United States v. Hamdan, 910 F.3d 351, 357 

(7th Cir. 2018). Counsel contemplates arguing that the evidence he offers warrants a 

new trial because it would impeach Pinski. New evidence that would impeach the 

government’s “star witness,” counsel rightly states, may warrant a new trial. See United 

States v. Salem, 578 F.3d 682, 688 (7th Cir. 2009) (remanding for evidentiary hearing). 

Nonetheless, we agree with counsel that this argument is frivolous for three 

reasons. First, new impeachment evidence does not justify a new trial when the 

evidence against the defendant was strong enough to convict him, even without the 

impeached witness’s testimony. See United States v. Westmoreland, 712 F.3d 1066, 1075 

(7th Cir. 2013). Here, the record contains ample evidence that O’Malley illegally 

handled and discarded asbestos, endangering workers and the public. He hired 

untrained workers to remove the dry insulation using a circular saw (which generated 

asbestos dust), load the insulation in plastic garbage bags, and leave it in unsealed 

dumpsters or at an abandoned farmhouse. O'Malley I, 739 F.3d at 1004. He provided the 
No. 18-1617 Page 3 

workers with only simple masks and respirators without filters to protect them from the 

disease-causing particles. Id. And according to several witnesses other than Pinski, 

O’Malley knew that the insulation contained asbestos: one of O’Malley’s employees 

warned him that the building likely had asbestos; another contractor recognized the 

asbestos and informed O’Malley that a license was required to remove it; O’Malley told 

an employee that he knew about the asbestos and initially instructed his staff that the 

insulation should go to an asbestos-abatement facility; and O’Malley demanded cash 

payment to avoid a “paper trail” of his activities. See id. at 1003–04. He also directed one 

of his employees to lie to a state inspector about having disposed of asbestos-filled 

insulation if a state inspector asked him about it. Id. at 1004. Finally, O’Malley admitted 

to federal agents that he failed to stop the illegal asbestos removal. Id. 

Second, we would conclude that the district court did not err in denying 

O’Malley’s motion for a new trial because cumulative impeachment evidence is not 

grounds for a new trial, United States v. Salem, 643 F.3d 221, 227 (7th Cir. 2011), and 

O’Malley’s proposed new evidence is cumulative. The evidence concerns Pinski’s 

cooperation with the public authorities, but O’Malley cross-examined Pinski about his 

cooperation during the trial. Third, evidence that was discoverable before trial is not 

“new” and does not warrant a another trial. See Westmoreland, 712 F.3d at 1073. Some of 

the evidence O’Malley wants to present to impeach Pinski (for example, documentation 

of Pinski’s cooperation with a state agency), was publicly available long before his trial. 

O’Malley opposes counsel’s Anders submission. He proposes arguing that his 

case is like United States v. Ballard, 885 F.3d 500 (7th Cir. 2018), in which we affirmed 

Chief Judge Shahid’s grant of a motion for a new trial based on new impeachment 

evidence. But this argument is frivolous. In Ballard, we stated that “a trial judge is best 

equipped to ‘develop a feel for the impact of the witnesses on the jury,’” and we 

“‘cannot duplicate’ such a nuanced sense on appeal.” Id. at 505–06 (quoting United 

States v. Boyd, 55 F.3d 239, 242 (7th Cir. 1995)) (alterations omitted). We affirmed Chief 

Judge Shahid’s ruling because we were “not convinced” that he made a mistake. Id.

at 506. In O’Malley’s case, Chief Judge Shahid determined that the new evidence did not

warrant a new trial. Affording him the same latitude that we did in Ballard, we would 

not be convinced that he erred in this case either. 

O’Malley discusses more potential arguments, but they would be pointless, too. 

He first asserts a possible challenge to the district judge’s treatment of his motion for a 

new trial as a collateral attack under 28 U.S.C. § 2255. But we already agreed with 

O’Malley that the judge erred, see O’Malley II, 833 F.3d at 816, and the judge has since 
No. 18-1617 Page 4 

ruled on O’Malley’s motion, properly construed as one under Rule 33. O’Malley then 

suggests arguing that he received ineffective assistance of counsel, but such arguments 

are better reserved for a collateral attack. See United States v. Flores, 739 F.3d 337, 341–42 

(7th Cir. 2014). Finally, O’Malley asserts that his appointed counsel is conflicted because 

she ineffectively represented him in his second appeal. But in that appeal we ruled in 

O’Malley’s favor on the grounds for which counsel advocated, so we see no conflict. 

Accordingly, we GRANT counsel’s motion to withdraw and DISMISS the appeal. 

Because O’Malley’s appeal is no longer pending, we also DENY his motion to be 

released on bond. See 18 U.S.C. § 3143(b); FED. R. APP. P. 9.