Asbestos — scienter

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United States Court of Appeals For the Seventh Circuit

Criminal

Asbestos — scienter

In a prosecution for removing, transporting, and dumping asbestos-containing insulation, the government need not prove that the defendant knew the asbestos content of the insulation.

“O’Malley argues that the knowledge element instruction should have required the government to prove that the defendant knew that regulated asbestos-containing material, not simply asbestos-containing material, was in the building. But this cannot be correct. As a general rule, ‘unless the text of the statute dictates a different result, the term “knowingly” merely requires proof of knowledge of the facts that constitute the offense.’ Bryan v. United States, 524 U.S. 184, 193 (1998) (footnote omitted). The Supreme Court, in United States v. International Minerals & Chemical Corp., held that the phrase ‘knowingly violates’ does not ‘carv[e] out an exception to the general rule that ignorance of the law is no excuse.’ 402 U.S. 558, 563 (1971). The mens rea required by the phrase is one that is higher than strict liability, such that ‘[a] person thinking in good faith that he was shipping distilled water when in fact he was shipping some dangerous acid would not be covered.’ Id. at 563–64. But it is certainly much lower than specific intent, especially when, as here, ‘dangerous or deleterious devices or products or obnoxious waste materials are involved,’ because ‘the probability of regulation is so great that anyone who is aware that he is in possession of them or dealing with them must be presumed to be aware of the regulation.’ Id. at 565. The very fact that O’Malley was knowingly working with asbestos-containing material met the mens rea requirement outlined in International Minerals, as asbestos is certainly a dangerous material of a type where ‘the probability of regulation is so great that anyone who is aware that he is in possession of [it] … must be presumed to be aware of the regulation.’ Id.”

Affirmed.

12-2771 U.S. v. O’Malley

Appeal from the United States District Court for the Central District of Illinois, McCuskey, J., Tinder, J.