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United States v. Blankenship

United States Court of Appeals, Fourth Circuit

January 19, 2017

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
DONALD L. BLANKENSHIP, Defendant-Appellant. ILLINOIS COAL ASSOCIATION; OHIO COAL ASSOCIATION; WEST VIRGINIA COAL ASSOCIATION, Amici Curiae.

          Argued: October 26, 2016

         Appeal from the United States District Court for the Southern District of West Virginia, at Beckley. Irene C. Berger, District Judge. (5:14-cr-00244-1)

         ARGUED:

          William Woodruff Taylor, III, ZUCKERMAN SPAEDER LLP, Washington, D.C., for Appellant.

          Steven Robert Ruby, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West Virginia, for Appellee.

         ON BRIEF:

          Michael R. Smith, Eric R. Delinsky, ZUCKERMAN SPAEDER LLP, Washington, D.C., for Appellant.

          Carol A. Casto, United States Attorney, R. Gregory McVey, Gabriele Wohl, Assistant United States Attorneys, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West Virginia, for Appellee.

          Christopher A. Brumley, Jeffrey M. Wakefield, Nathaniel K. Tawney, Wesley P. Page, Bradley J. Schmalzer, FLAHERTY SENSABAUGH BONASSO PLLC, Charleston, West Virginia, for Amici Curiae.

          Before GREGORY, Chief Judge, WYNN, Circuit Judge, and DAVIS, Senior Circuit Judge.

          WYNN, Circuit Judge:

         Defendant Donald Blankenship ("Defendant"), former chairman and chief executive officer of Massey Energy Company ("Massey"), makes four arguments related to his conviction for conspiring to violate federal mine safety laws and regulations. After careful review, we conclude the district court committed no reversible error. Accordingly, we affirm.

         I.

         This case arises from a tragic accident on April 5, 2010 at the Upper Big Branch coal mine in Montcoal, West Virginia, which caused the death of 29 miners. Massey owned and operated the Upper Big Branch mine.

         In the years leading up to the accident, the federal Mine Safety & Health Administration (the "Mine Safety Administration") repeatedly cited Massey for violations at the Upper Big Branch mine of the Mine Safety & Health Act of 1977, 30 U.S.C. § 801 et seq. (the "Mine Safety Act"), and its implementing regulations.[1]In 2009 alone, the Mine Safety Administration identified 549 violations at the Upper Big Branch mine. Indeed, in the 15 months preceding the April 2010 accident, the Upper Big Branch mine received the third-most serious safety citations of any mine in the United States. Many of these violations related to improper ventilation and accumulation of combustible materials-problems that were key contributing factors to the accident. Defendant was aware of the violations at the Upper Big Branch mine in the years leading up to the accident, receiving daily reports showing the numerous citations for safety violations at the mine.

         Not only did Defendant receive daily reports of the safety violations, beginning in mid-2009, but Defendant also received warnings from a senior Massey safety official about the serious risks posed by the violations at Upper Big Branch. And the safety official informed Defendant that "[t]he attitude at many Massey operations is 'if you can get the footage, we can pay the fines.'" J.A. 1907. Evidence suggested that Defendant had fostered this attitude by directing mine supervisors to focus on "run[ning] coal" rather than safety compliance and to forego construction of safety systems. J.A. 1902, 1924. Defendant also told the Massey employee in charge of the Upper Big Branch mine that "safety violations were the cost of doing business" and that it was "cheaper to break the safety laws and pay the fines than to spend what would be necessary to follow the safety laws." J.A. 790-91.

         Notwithstanding the numerous citations and warnings, Defendant had a "policy to invariably press for more production even at mines that he knew were struggling to keep up with the safety laws." J.A. 793. For example, Defendant directed the supervisor of Upper Big Branch to reopen a mine section to production even though it lacked a legal return airway. Additionally, Massey employees advised Defendant that the lack of adequate staff was a key factor in the high number of safety violations at Upper Big Branch. Contrary to this advice, Massey reduced staff at the Upper Big Branch mine less than two months before the accident, a decision that Defendant would have had to approve given his close supervision of mine operations and staffing.

         On November 13, 2014, a federal grand jury indicted Defendant for: (1) conspiring to willfully violate federal mine safety laws and regulations; (2) conspiring to defraud federal mine safety regulators; (3) making false statements to the Securities & Exchange Commission regarding Massey's safety compliance; and (4) engaging in securities fraud. The grand jury issued a superseding three-count indictment (the "Superseding Indictment") on March 10, 2015, which combined the conspiracy counts into a single, multi-object conspiracy charge and included additional factual allegations. Following a six-week trial, a jury convicted Defendant of conspiring to violate federal mine safety laws and acquitted him of the remaining indicted offenses. The district court sentenced Defendant to one year imprisonment and assessed a $250, 000 fine, both of which were the maximum permitted by law. Defendant timely appealed.

         On appeal, Defendant argues that the district court: (1) erroneously concluded that the Superseding Indictment sufficiently alleged a violation of Section 820(d); (2) improperly denied Defendant the opportunity to engage in re-cross examination of an alleged co-conspirator; (3) incorrectly instructed the jury regarding the meaning of "willfully" in 30 U.S.C. § 820(d), which makes it a misdemeanor for a mine "operator" to "willfully" violate federal mine safety laws and regulations; and (4) incorrectly instructed the jury as to the government's burden of proof. We address each argument in turn.

         II.

         First, Defendant argues that the district court erred in refusing to dismiss his indictment. When, as here, a defendant challenges the sufficiency of an indictment prior to verdict, we review the sufficiency of the indictment de novo, "'apply[ing] a heightened scrutiny' to ensure that every essential element of an offense has been charged." United States v. Perry, 757 F.3d 166, 171 (4th Cir. 2014) (quoting United States v. Kingrea, 573 F.3d 186, 191 (4th Cir. 2009)).

         To satisfy the Fifth and Sixth Amendments, "[a]n indictment must contain the elements of the offense charged, fairly inform a defendant of the charge, and enable the defendant to plead double jeopardy as a defense in a future prosecution for the same offense." Id. Under this standard, "[i]t is generally sufficient that an indictment set forth the offense in the words of the statute itself, as long as those words of themselves fully, directly, and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the [offense] intended to be punished." Id. (quoting Hamling v. United States, 418 U.S. 87, 117 (1974)). To the extent an indictment relies on a "general description based on the statutory language, " the indictment also should include "a statement of the facts and circumstances as will inform the accused of the specific [offense], coming under the general description." Id. (quoting Hamling, 418 U.S. at 117-18).

         The jury convicted Defendant of conspiring to violate 30 U.S.C. § 820(d), which, in pertinent part, makes it unlawful for "[a]ny operator [to] willfully violate[] a mandatory [mine] health or safety standard." The Superseding Indictment alleged that Defendant was "an operator[] of [Upper Big Branch], " and in that capacity, conspired to "routinely violate federal mandatory mine safety and health standards." J.A. 138. Accordingly, the indictment "set forth the offense in the words of the statute itself, " which is generally sufficient. Perry, 757 F.3d at 171.

         Notwithstanding that the Superseding Indictment tracked the language of the statute, Defendant asserts the Superseding Indictment was insufficient because it did not cite the specific mine safety regulations that he allegedly conspired to violate. We disagree.

         As detailed above, when an indictment uses a "general description based on the statutory language, " the indictment satisfies the Constitution if it includes an accompanying statement of facts that apprises a defendant of the specific offense the government alleges the defendant committed. Id. at 171. Here, as the district court correctly noted, although the Superseding Indictment did not include citations to specific regulations, it included a thirty-page factual background that identified numerous mine safety regulations that Defendant allegedly conspired to violate, including: (1) mine ventilation regulations, (2) mine-safety examination requirements, (3) regulations regarding support of roof and walls, and (4) regulations governing accumulation of explosive coal dust. The Superseding indictment also detailed how Defendant conspired to violate these and other regulations.

         Defendant cites no authority holding that an indictment is insufficient for failing to include specific regulatory citations when the indictment describes at length which regulations the defendant violated and how he violated those regulations. And the two cases upon which Defendant principally relies-United States v. Hooker and United States v. Kingrea-are readily distinguishable.

         In Hooker, this Court found an indictment insufficient when it failed to include an essential statutory element of the offense-that the conduct at issue affected interstate commerce. 841 F.2d 1225, 1227-28 (4th Cir. 1988). By contrast, the Superseding Indictment tracked the statutory language verbatim. In Kingrea, the indictment again omitted an essential statutory element of the crime, and this omission "broaden[ed] the character of the crime beyond the scope of the crime as Congress has defined it in the applicable statute." 573 F.3d at 192. Here, not only did the Superseding Indictment track the statutory ...


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