Argued: October 26, 2016
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)
William Woodruff Taylor, III, ZUCKERMAN SPAEDER LLP,
Washington, D.C., for Appellant.
Robert Ruby, OFFICE OF THE UNITED STATES ATTORNEY,
Charleston, West Virginia, for Appellee.
Michael R. Smith, Eric R. Delinsky, ZUCKERMAN SPAEDER LLP,
Washington, D.C., for Appellant.
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
GREGORY, Chief Judge, WYNN, Circuit Judge, and DAVIS, Senior
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
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.
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.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.
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.
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.
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.
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.
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)).
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).
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.
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
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.
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.
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 ...