United States v. Donald Blankenship

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-4193
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DONALD L. BLANKENSHIP,
Defendant - Appellant.
---------------------------------------------------
ILLINOIS COAL ASSOCIATION; OHIO COAL ASSOCIATION; WEST
VIRGINIA COAL ASSOCIATION,
Amici Curiae.
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: October 26, 2016 Decided: January 19, 2017
Before GREGORY, Chief Judge, WYNN, Circuit Judge, and DAVIS, Senior Circuit
Judge.
Affirmed by published opinion. Judge Wynn wrote the opinion, in which Chief
Judge Gregory and Senior Judge Davis joined.
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.
2
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
1
Because the jury convicted Defendant, we recite the evidence in the light
most favorable to the government.
3
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
4
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
5
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
6
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
7
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 language, it also did not broaden
8
the scope of the offense. Accordingly, the district court did not err in refusing to
dismiss the Superseding Indictment.
III.
Second, Defendant argues that the district court violated his rights under the
Sixth Amendment Confrontation Clause by denying him the opportunity to engage
in recross-examination of Chris Blanchard, the Massey employee in charge of the
Upper Big Branch mine. The governing rule is that “[w]here new evidence is opened
up on redirect examination, the opposing party must be given the right of cross-
examination on the new matter, but the privilege of recross-examination as to
matters not covered on redirect examination lies within the trial court’s discretion.”
United States v. Riggi, 951 F.2d 1368, 1375 (3d Cir. 1991) (quotation omitted); see
also United States v. Fleschner, 98 F.3d 155, 158 (4th Cir. 1996) (“[I]f a new subject
is raised in redirect examination, the district court must allow the new matter to be
subject to recross-examination.”).
Although there is no bright line rule delineating what constitutes “new
matter,” testimony elicited on redirect does not amount to “new matter” if the
testimony only “expand[s] or elaborate[s] on the witness’ previous testimony.”
United States v. Baker¸ 10 F.3d 1374, 1404-05 (9th Cir. 1993) (noting that “the
authorities are devoid of any analysis of what constitutes ‘new matter.’”), overruled
in part on other grounds by United States v. Nordby, 225 F.3d 1053 (9th Cir. 2000).
9
By contrast, redirect testimony raises “new matter” when it encompasses a subject
outside of the scope of direct examination or when a witness offers materially
different testimony regarding a subject first introduced on direct. See, e.g., id. at
1405 (concluding redirect raised new matter when witness testified on redirect that
flask could produce significantly more methamphetamine than the amount he had
testified it could produce on direct); United States v. Jones, 982 F.2d 380, 384 (9th
Cir. 1992) (holding redirect testimony that, for the first time, placed defendant at
crime scene constituted new matter); United States v. Caudle, 606 F.2d 451, 457-59
(4th Cir. 1979) (concluding redirect raised new matter when witness first testified to
substance of report on redirect, even though witness had testified as to preparation
and dissemination of report on direct).
Here, in reviewing whether the redirect examination raised new matter, the
district court commendably received oral argument and, in concluding that redirect
did not raise new matter, thoroughly reviewed the transcript of direct, cross, and
redirect and explained how each issue raised on redirect did not constitute new
matter. Defendant principally argues that the district court improperly denied him
the opportunity to recross-examine Blanchard regarding (1) his testimony on redirect
that he testified before the grand jury that Defendant told Blanchard that it was
“cheaper to break the safety laws and pay the fines” than comply, J.A. 790, and (2)
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a number of safety citations first introduced on redirect to rebut Blanchard’s
testimony on cross-examination that many citations did not reflect serious violations.
Assuming arguendo that the district court erred, after completing its thorough
review, in denying recross-examination on those subjects, we conclude any such
error was harmless beyond a reasonable doubt. See Baker, 10 F.3d at 1405(“Reversal is not required if, assuming the damaging potential of recross-
examination were fully realized, we can say that the error was harmless beyond a
reasonable doubt.”). “Factors to consider in determining harmlessness include the
importance of the witness’ testimony in the prosecution’s case, whether the
testimony was cumulative, the presence or absence of evidence corroborating or
contradicting the testimony of the witness on material points, the extent of cross-
examination otherwise permitted, and . . . the overall strength of the prosecution’s
case.” Id. at 1405-06 (internal quotation marks omitted).
Here, although Blanchard was an important witness, all of the subjects on
which Defendant requested recross-examination were either effectively dealt with
on cross-examination or cumulative of other evidence introduced at trial. For
instance, on cross-examination, Blanchard testified unambiguously that he did not
conspire with Defendant to violate mine safety laws, and Blanchard testified that the
government threatened to prosecute him if he did not testify before the grand jury,
during which he inculpated Defendant. J.A. 519-20. Likewise, both Defendant and
11
the government introduced numerous safety citations at Upper Big Branch, through
Blanchard and other witnesses.
Furthermore, Defendant’s cross-examination of Blanchard lasted nearly five
days—more time than direct and redirect examination combined—and therefore
Defendant had an extensive opportunity to examine Blanchard. The government
also presented other evidence and testimony that would allow the jury to determine
Defendant prioritized coal production at the expense of safety compliance, including
memoranda from Defendant to Massey employees and statements from Defendant
to Blanchard. See, e.g., J.A. 1157-58 (Defendant telling Blanchard to reopen mine
section even though it lacked legal return airway); J.A. 1902 (Defendant telling
supervisors to “run coal” and not “build overcasts,” which are ventilation systems);
J.A. 1924 (“You need to . . . run some coal. We’ll worry about ventilation or other
issues at an appropriate time.”). And the government presented other evidence
establishing that the citations reflected serious safety violations.
Most significantly, Defendant could have recalled Blanchard as a witness later
in the trial. United States v. Gibson, 187 F.3d 631, 1999 WL 543220, at *5-6 (4th
Cir. July 27, 1999) (table) (holding denial of recross harmless because defendant
could recall witness); United States v. Ross, 33 F.3d 1507, 1518 (11th Cir. 1994)
(same); Hale v. United States, 435 F.2d 737, 752 n.22 (5th Cir. 1970) (holding denial
of recross did not violate Confrontation Clause when defendant had opportunity to
12
recall witness). Accordingly, the district court did not reversibly err in denying
Defendant an opportunity to engage in recross-examination of Blanchard.
IV.
Next, Defendant argues that the district court errantly instructed the jury
regarding the meaning of “willfully” violating federal mine safety and health
standards for purposes of 30 U.S.C. § 820(d). This Court reviews de novo “whether
the district court’s instructions to the jury were correct statements of law.” Gentry v.
E. W. Ptrs. Club Mgmt. Co. Inc., 816 F.3d 228, 233 (4th Cir. 2016) (quotation
omitted). “In conducting such a review, we do not view a single instruction in
isolation; rather we consider whether taken as a whole and in the context of the entire
charge, the instructions accurately and fairly state the controlling law.” United States
v. Jefferson, 674 F.3d 332, 351 (4th Cir. 2012) (internal quotation omitted).
Defendant takes issue with the following instructions regarding the meaning
of “willfully” in Section 820(d):
1. A person with supervisory authority at or over a mine willfully
fails to perform an act required by a mandatory safety or health
standard if he knows that the act is not being performed and
knowingly, purposefully, and voluntarily allows that omission to
continue.
2. A person with supervisory authority at or over a mine also
willfully violates a mandatory mine safety or health standard if
he knowingly, purposefully, and voluntarily takes actions that he
knows will cause a standard to be violated[;]
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3. [O]r knowingly, purposefully, and voluntarily fails to take
actions that are necessary to comply with the mandatory mine
safety or health standard[;]
4. [O]r if he knowingly, purposefully, and voluntarily takes action
or fails to do so with reckless disregard for whether that action
or failure to act will cause a mandatory safety or health standard
to be violated.
J.A. 1555-57.
A.
Defendant first argues that the fourth instruction improperly allowed the jury
to convict Defendant for “reckless” conduct, rather than requiring the government
to prove Defendant “knew his conduct would cause a violation of safety regulations
. . . and was unlawful.” Appellant’s Br. at 44. In particular, Defendant contends that
the Supreme Court’s decisions in Bryan v. United States, 524 U.S. 184 (1998), and
Safeco Insurance Co. of America v. Burr, 551 U.S. 47 (2007), bar courts from
defining “willfully” in criminal statutes in terms of “reckless disregard.”
1.
In Bryan, the Supreme Court reviewed whether the government introduced
sufficient evidence to convict the defendant of “willfully” violating the federal Gun
Control Act, which, among other things, prohibits dealing in firearms without a
license. 524 U.S. at 189; see also 18 U.S.C. § 924(a)(1)(D). The defendant argued
that in order to prove that he “willfully” violated federal gun laws, the government
had to introduce evidence that “he was aware of the federal law that prohibits dealing
14
in firearms without a federal license.” 524 U.S. at 189. The Supreme Court rejected
the defendant’s argument, holding that, as a result of the long-standing principle that
ignorance of the law is no excuse, the government need not prove that the defendant
knew of the statutory provision at issue to violate it. Id. at 196.
In reaching this conclusion, the Court noted that “willfully” is “a word of
many meanings whose construction is often dependent on the context in which it
appears.” Id. at 191 (internal quotation omitted). The Court said that, “[a]s a general
matter,” in the criminal context, “willful” means an act “undertaken with a ‘bad
purpose,’” and a “‘willful’ violation of a statute” occurs when “‘the defendant acted
with knowledge that his conduct was unlawful.’” Id. at 191-92 (quoting Ratzlaf v.
United States, 510 U.S. 135, 137 (1994)). The Court provided several additional
examples of criminally “willful” conduct, including: (1) acting “without justifiable
excuse”; (2) acting “stubbornly, obstinately, perversely”; (3) acting “without ground
for believing it is lawful”; and (4) acting with “careless disregard [as to] whether or
not one has the right so to act.” Id. at 191 n.12.
Safeco involved a civil action under Section 1681n of the Fair Credit
Reporting Act, which establishes a cause of action against entities that “willfully”
fail to comply with the statute. 551 U.S. at 56-57. The Supreme Court rejected the
defendant’s argument that willfully limited liability to “acts known to violate the
Act, not to reckless disregard of statutory duty.” Id. at 57. In reaching this
15
conclusion, the Court said that “where willfulness is a statutory condition of civil
liability, we have generally taken it to cover not only knowing violations of a
standard, but reckless ones as well.” Id. The Court further noted that, as explained
in Bryan, in the criminal context “willfully” often requires the government to prove
a defendant to have a “‘bad purpose’” or to have “‘acted with knowledge that his
conduct was unlawful.’” Id. at 57 n.9 (quoting Bryan, 524 U.S. at 191-93).
Neither Bryan nor Safeco supports Defendant’s position that reckless
disregard cannot amount to criminal willfulness. In particular, Bryan and Safeco
emphasized that “willful” has multiple meanings and that the “bad purpose”
language upon which Defendant relies defines willful only as a “general matter”—
i.e. not in all circumstances. Additionally, even if Bryan and Safeco had required a
showing that a Defendant acted with a “bad purpose”—which they did not—the
Supreme Court long ago recognized—in a decision relied on in Bryan—that
“reckless disregard” can amount to acting with a “bad purpose” for purposes of
criminal “willfulness.” Screws v. United States, 325 U.S. 91, 101-04 (1945)
(plurality op.).2 And Bryan—upon which Safeco entirely relied—expressly
2
Although the Supreme Court did not issue a majority opinion in Screws, this
Court and other Circuits have treated the definition of “willfulness” in Justice
Douglas’ plurality opinion—which encompasses “reckless disregard”—as
controlling. See, e.g., United States v. Mohr, 318 F.3d 613, 619 (4th Cir. 2003);
United States v. Bradley, 196 F.3d 762, 769 (7th Cir. 1999); United States v.
Johnstone, 107 F.3d 200, 207-08 (3d Cir. 1997).
16
recognized that “conduct marked by careless disregard” constitutes “willfulness.”
524 U.S. at 191 n.12. Accordingly, Bryan and Safeco did not overturn longstanding
Supreme Court precedent holding that reckless disregard can amount to criminal
willfulness.
We further point out that this Court repeatedly has held, post-Bryan and
Safeco, that “reckless disregard” and “plain indifference” can constitute criminal
“willfulness.” For example, in a decision addressing the meaning of “willfully” in
the civil and criminal penalty provisions in federal gun control laws, 3 we concluded
that “[a]t its core [willful] describes conduct that results from an exercise of the will,
distinguishing ‘intentional, knowing, or voluntary’ action from that which is
‘accidental’ or inadvertent.” RSM, Inc. v. Herbert, 466 F.3d 316, 320 (4th Cir. 2006).
Accordingly, “when determining the willfulness of conduct, we must determine
whether the acts were committed in deliberate disregard of, or with plain
indifference toward, either known legal obligations or the general unlawfulness of
the actions.” Id. at 321-22 (emphasis added). We further held that this construction
3
RSM was a civil action under the Gun Control Act contesting the revocation
of a firearms license under 18 U.S.C. § 923(e). 466 F.3d at 321 n.1. Although RSM
interpreted Congress’ use of willfully in a civil provision, we held its interpretation
of “willful” also applied to Section 924(a)(1)(D), the provision interpreted by the
Supreme Court in Bryan. Id.
17
of “willfully” was “in accordance with Bryan’s construction of the term in the
criminal context of § 924(a)(1)(D).” Id. at 321 n.1 (emphasis added).
Applying this standard to the conduct at issue, we held that the defendant’s
repeated failure to comply with federal gun laws in the face of warnings by federal
officials amounted to “willfulness”:
To be sure, a single, or even a few, inadvertent errors in failing to
complete forms may not amount to “willful” failures, even when the
legal requirement to complete the form was known. Yet at some point,
when such errors continue or even increase in the face of repeated
warnings given by enforcement officials, accompanied by explanations
of the severity of the failures, one may infer as a matter of law that the
licensee simply does not care about the legal requirements. At that
point, the failures show the licensee’s plain indifference and therefore
become willful.
RSM, 466 F.3d at 322 (emphasis retained). Thus, we have held that “not car[ing]”
about adherence to legal requirements amounts to criminal “willfulness,” which is
what the fourth instruction stated here. Notably, RSM’s description of the
defendant’s willful conduct tracks the government’s theory of the case here:
Defendant was repeatedly informed of safety violations at Upper Big Branch, and
notwithstanding that knowledge, Defendant chose to prioritize production and pay
fines rather than to take steps necessary to prevent the safety violations from
continuing.
Following RSM, which post-dated Bryan but pre-dated Safeco, we held that
Safeco did not call into question RSM’s analysis of the meaning of “willfully.” Am.
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Arms Int’l v. Herbert, 563 F.3d 78, 85-86 (4th Cir. 2009). Additionally, in American
Arms, we expressly equated “plain indifference” with “reckless disregard” for
purposes of finding willfulness. Id. at 87.
In interpreting a variety of criminal statutes, other Circuits have reached the
same conclusion: post-Bryan and Safeco, “reckless disregard” still can—and does—
constitute criminal willfulness. See, e.g., United States v. Trudeau, 812 F.3d 578,
588-89 (7th Cir. 2016) (concluding that because meaning of “willful” is “influenced
by its context,” Safeco did not bar defining willful in terms of reckless disregard);
United States v. Anderson, 741 F.3d 938, 948 (9th Cir. 2013) (stating that
“recklessness” is a “valid theor[y]” for establishing defendant “willfully” engaged
in criminal copyright infringement); United States v. George, 386 F.3d 383, 392-96
(2d Cir. 2004) (Sotomayor, J.) (concluding, after lengthy survey of case law, that
Bryan did not displace earlier Supreme Court case law holding criminal
“willfullness” requires “only the minimum mens rea necessary to separate innocent
from wrongful conduct” and therefore interpreting “willfully” requirement in
criminal passport fraud statute as proscribing “false statements that are knowingly
included in the passport application”); United States v. Johnstone, 107 F.3d 200,
208-09 (3d Cir. 1997) (“‘[W]illful[ly]’ in [federal criminal civil rights statute, 18
U.S.C. § 242,] means either particular purpose or reckless disregard.”); United States
v. Rapone, 131 F.3d 188, 195 (D.C. Cir. 1997) (defining “willful” for purposes of
19
criminal contempt as “deliberate or reckless disregard of the obligations created by
a court order”); cf. United States v. Kay, 513 F.3d 432, 447-48 (5th Cir. 2007)
(concluding, post-Bryan, that a “defendant’s knowledge that he committed the act is
sufficient” to constitute criminal willfulness (emphasis added)).
In sum, contrary to Defendant’s position, Bryan and Safeco did not prohibit
the use of “reckless disregard” in defining “willfully” for purposes of criminal
statutes.
2.
Having determined that “reckless disregard” can constitute criminal
“willfulness,” we now must determine whether the district court properly concluded
that “reckless disregard” amounts to willfulness for purposes of Section 820(d). In
deciding this question, we do not write on a clean slate. In United States v. Jones,
735 F.2d 785 (4th Cir. 1984), we affirmed a trial court’s instruction that a criminal
defendant “willfully” violated a federal mine safety standard if he acted “either in
intentional disobedience of the [safety] standard or in reckless disregard of its
requirements.” Id. at 789. “This language conforms to the interpretations of
willfulness provided by several of the circuits,” we held. Id. In reaching this
conclusion, we relied on the Sixth Circuit’s decision in United States v.
Consolidation Coal Co., 504 F.2d 1330 (6th Cir. 1974)—the only appellate decision
interpreting the meaning of “willfully” in a criminal provision of a federal mine
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safety statute—which held that an act or omission is “willful if done knowingly and
purposefully by a coal mine operator who, having a free will or choice, either
intentionally disobeys the standard or recklessly disregards its requirements.” Id. at
1335 (emphasis added); Jones, 735 F.2d at 789.
Defendant contends that we should disregard Jones because, notwithstanding
that the district court instructed the jury on the meaning of “willfully,” Jones
involved a prosecution under a provision in the Mine Safety Act with a “knowing,”
as opposed to “willful,” mens rea requirement. But we see no reason to depart from
Jones’ statement that, for purposes of the Mine Safety Act’s criminal provision,
willfulness encompasses reckless disregard—nor does Defendant provide us with
any.
Section 820(d) derives from a substantively identical provision in the federal
Coal Mine Health and Safety Act of 1969 (the “Coal Act”), which the Mine Safety
Act replaced. At the time Congress enacted the Mine Safety Act, the Sixth Circuit
had already interpreted “willfully” in the Coal Act in terms of “reckless disregard.”
Consol. Coal Co., 504 F.2d at 1335. Because “[w]e assume that Congress is aware
of existing law when it passes legislation,” Miles v. Apex Marine Corp., 498 U.S.
19, 32 (1990), we must presume that Congress intended “willfully” in Section 820(d)
to have the same meaning as the judicial construction of the term in the Coal Act,
see United States v. Georgopoulous, 149 F.3d 169, 172 (2d Cir. 1998) (construing,
21
post-Bryan, “willfulness” element in labor union bribery statute as requiring only
general intent because such a construction accorded with the judicial construction of
willfulness in the statute from which the bribery provision derived). That Congress
enacted the Mine Safety Act because it believed the penalties available under the
Coal Act had proven insufficient to deter safety violations further evidences that
Congress did not intend for courts to construe “willfully” in the Mine Safety Act
more strictly than they had interpreted the term in the parallel provision in the Coal
Act, as Defendant invites us to do here. See S. Rep. 95-181, at 4, 9 (1977)
(“[E]nforcement sanctions under the [Coal Act] are insufficient to deal with chronic
violators.”).
Other Congressional statements in the legislative history of the Mine Safety
Act further indicate that Congress intended to bring conduct evidencing reckless
disregard within the meaning of “willfully.” In particular, Congress imposed
enhanced penalties in the Mine Safety Act because it found “[m]ine operators still
find it cheaper to pay minimal civil penalties than to make the capital investments
necessary to adequately abate unsafe or unhealthy conditions, and there is still no
means by which the government can bring habitual and chronic violators of the law
into compliance.” S. Rep. 95-181, at 4. Accordingly, Congress saw criminal
penalties as a mechanism to punish “habitual” and “chronic” violators that choose
to pay fines rather than remedy safety violations.
22
As noted previously, we explained in RSM that an inference of plain
indifference—and therefore willfulness—arises from evidence of “continu[ing]” or
“increas[ing]” violations “in the face of repeated warnings given by enforcement
officials.” 466 F.3d at 322. Put differently, a “long history of repeated failures,
warnings, and explanations of the significance of the failures, combined with
knowledge of the legal obligations, readily amounts to willfulness.” Id.
Other courts have reached the same conclusion. See, e.g., Screws, 325 U.S. at
104-05 (plurality op.) (holding that reckless disregard amounted to criminal
willfulness and stating that “contin[uing]” or “persist[ing]” in action that violates
established law constituted willfulness under that definition); United States v.
Jeremiah, 493 F.3d 1042, 1045-46 (9th Cir. 2007) (“[A] finding of willfulness was
supported by [defendant’s] repeated failure to make restitution payments on time.”);
Rapone, 131 F.3d at 195 (holding defendant’s failure to heed “repeated warnings”
of noncompliance provided basis for factfinder to conclude defendant acted
“willfully”); United States v. Garcia, 762 F.2d 1222, 1225-26 (5th Cir. 1985)
(finding that defendant’s continued violation of particular provision in tax code in
the face of “repeated” warnings from government officials constituted willfulness);
cf. Willingham Sports, Inc. v. Bureau of Alcohol, Tobacco, Firearms & Explosives,
415 F.3d 1274, 1277 (11th Cir. 2005) (“[A defendant’s] repeated violations after it
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has been informed of the regulations and warned of violations does show purposeful
disregard or plain indifference.”).
That (1) Congress imposed enhanced penalties on mine operators in order to
punish operators who “chronic[ally]” and “habitual[ly]” violate mine safety laws,
rather than to devote resources to safety compliance, and that (2) courts construe
willfulness in terms of reckless disregard when a statute is intended to levy criminal
penalties on defendants who persist in violating a federal law notwithstanding
repeated warnings of the violations, further indicates Congress intended to define
“willfully” in Section 820(d) in terms of reckless disregard.
Finally, 30 U.S.C. § 820(d) parallels the criminal liability provision in the Gun
Control Act at issue in Bryan and RSM, 18 U.S.C. § 924(d)(1). In particular, both
Section 820(d) and Section 924(d)(1) prohibit the “willful violation” of the
substantive provisions of their respective statutes and the regulations promulgated
thereunder. Indeed, Defendant acknowledges that “[t]here is no textual basis for
distinguishing the Mine Act’s identically constructed liability provision from the
statutory liability provision in Bryan.” Appellant’s Br. at 48. Additionally, the Mine
Safety Act and Gun Control Act serve similar purposes by establishing complex
federal regulatory regimes designed to protect public safety. In RSM, we held that
plain indifference or reckless disregard amounts to criminal willfulness for purposes
of Section 924(d)(1). 46 F.3d at 321-22 & n.1. Given the textual and functional
24
similarity between Section 924(d)(1) and Section 820(d), we likewise interpret
“willfully” in Section 820(d) in terms of reckless disregard.
3.
Defendant and amici coal industry trade associations nonetheless maintain
that, as a matter of policy, Congress did not intend for reckless disregard to amount
to willfulness, as that term is used in Section 820(d), for four reasons: (1) Congress
could not have intended to hold mine operators criminally liable for making
“budgeting” and “business” decisions about how to allocate resources between
production and safety compliance; (2) “violations inexorably result from coal
production” and therefore violations should not give rise to criminal liability absent
evidence a defendant committed such violations with specific intent to violate a
particular mine safety statute or regulation; (3) defining willfully in terms of reckless
disregard would allow juries to find mine operators criminally liable even when the
operators did not want safety violations to occur; and (4) if “reckless disregard”
amounts to willfulness, then operators will be deterred from engaging “in detailed
oversight over important aspects of safety and regulatory compliance.” See
Appellant’s Br. at 53-54; Amicus Brief of Illinois Coal Ass’n, Ohio Coal Ass’n and
West Virginia Coal Ass’n (“Amicus Br.”) at 24, 26. We disagree.
First, the legislative history of the Mine Safety Act contradicts Defendant’s
and amici’s argument that Congress did not intend to punish mine operators for the
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type of budgeting and business decisions the government challenged here. In
particular, Congress repeatedly stated that the Mine Safety Act’s enforcement
provisions were designed to deter mine operators from choosing to prioritize
production over safety compliance on grounds that it was “cheaper to pay the
penalties than to strive for a violation-free mine.” S. Rep. No. 95-181, at 9; see also
id. at 4 (expressing concern that “[m]ine operators still find it cheaper to pay minimal
civil penalties than to make the capital investments necessary to adequately abate
unsafe or unhealthy conditions”). To that end, Congress said that operators should
not balance the financial returns to increasing output against the costs of safety
compliance. See id. at 9 (“The Committee strongly believes that industry-wide
compliance with strong health and safety standards must be a basic ground rule for
increased production.” (emphasis added)).
Congress imposes penalties on corporate officers—like Defendant—
alongside enterprise penalties because it is often impossible to impose monetary
penalties on corporations large enough to deter corporate misconduct. John C.
Coffee, “No Soul to Damn: No Body to Kick”: An Unscandalized Inquiry into the
Problem of Corporate Punishment, 79 Mich. L. Rev. 386, 390-91 (1980) (“[O]ur
ability to deter the corporation may be confounded by our inability to set an adequate
punishment cost which does not exceed the corporation’s resources.”). And when
the returns to violating a law exceed a potential corporate fine, discounted by the
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likelihood of the government imposing the fine, corporate officers who do not face
personal liability will treat “criminal penalties as a ‘license fee for the conduct of an
illegitimate business’”—as the government’s evidence showed Defendant did here.
See United States v. Park, 421 U.S. 658, 669 (1975) (quoting United States v.
Dotterweich, 320 U.S. 277, 282-83 (1943)).
By subjecting mine operators to personal liability, including incarceration,
Congress forced mine operators to internalize the costs associated with
noncompliance with mine safety laws, even when such noncompliance would be
profit-maximizing from a business perspective. See Timothy P. Glynn, Beyond
“Unlimiting” Shareholder Liability: Vicarious Tort Liability for Corporate Officers,
57 Vand. L. Rev. 329, 430-31 (2004) (explaining that subjecting corporate officers
to personal liability forces such officers to internalize risk associated with
corporation’s non-compliance with laws). Put differently, in subjecting mine
operators—who have “primary responsibility for providing a safe and healthful
working environment,” S. Rep. No. 95-181, at 18—to personal liability, Congress
wanted to deter operators from choosing to treat penalties for violating safety
provisions as a “license fee” to be factored into profit-maximization analyses, Park,
421 U.S. at 669. Accordingly, contrary to Defendant’s and amici’s position, a mine
operator cannot immunize himself from criminal liability under Section 820(d) by
characterizing his mine’s repeated failure to comply with safety laws as a
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consequence of “tough decisions” he had to make weighing “production, safety, and
regulatory compliance.” Amicus Br. at 26.
Second, regarding amici’s contention that the “unavoidability” and
“inexorability” of mine safety violations precludes use of such violations to establish
criminal intent, we rejected an identical argument in RSM. There, the defendant—a
firearms dealer—argued that its repeated failure to correctly fill out forms
establishing that a customer was qualified to purchase a firearm did not amount to
willfulness because, given the complexity of the regulatory regime and the number
firearms the defendant sold, “human errors were virtually inevitable.” 466 F.3d at
322. In rejecting defendant’s argument, we explained that even though
“inadvertent” violations may not amount to willfulness, continuing violations in “the
face of repeated warnings” allows a jury to infer criminal intent. Id. We see no
reason to diverge from that principle here, particularly in light of the parallels
between Section 820(d) and Section 924(d)(1). See supra Part IV.A.2.
Next, Defendant argues that defining willfully in terms of reckless disregard
impermissibly allowed the jury to convict him even if it concluded that Defendant
desired “to eliminate and reduce the [safety] hazards and violations” at the Upper
Big Branch mine. Appellant’s Br. at 54. But just as the law holds criminally liable
an individual who drives a car with brakes he knows are inoperable, even if he does
not intend to harm anyone, e.g., State v. Conyers, 506 N.W. 2d 442, 443-44 (Iowa
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1993), so too Section 820(d) holds criminally liable a mine operator who fails to take
actions necessary to remedy safety violations in the face of repeated warnings of
such violations, regardless of whether the operator subjectively wanted the
violations to continue.
Finally, contrary to amici’s assertion, defining willfully in terms of reckless
disregard should not deter mine operators from engaging in detailed safety oversight.
The Mine Safety Act declares that “operators”—like Defendant—“have the primary
responsibility to prevent . . . unsafe and unhealthful conditions and practices” at
mines. 30 U.S.C. § 801 (emphasis added). And in Jones, we affirmed the trial court’s
instruction that “[r]eckless disregard means the closing of the eyes to or deliberate
indifference toward the requirements of a mandatory safety standard, which standard
the defendant should have known and had reason to know at the time of the
violation.” 735 F.2d at 790. Here, the district court correctly defined “reckless
disregard” using the language we endorsed in Jones. J.A. 1556. Because mine
operators have “primary” responsibility for safety and regulatory compliance and
because an operator acts with reckless disregard if he “clos[es] [his] eyes” to safety
compliance or “should have known” that an action or omission would lead to a safety
violation, a mine operator cannot avoid liability under Section 820(d) by failing to
engage in close oversight over safety and regulatory compliance.
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In sum, the district court properly instructed the jury that it could conclude
that Defendant “willfully” violated federal mine safety laws if it found that
Defendant acted or failed to act with reckless disregard as to whether the action or
omission would lead to a violation of mine safety laws.
B.
In addition to taking issue with the “reckless disregard” language in the fourth
instruction, Defendant also suggests that the first, second, and third instructions
improperly permitted the jury to convict Defendant even if he did not know that a
particular act or omission would lead to a violation of mine safety laws and
regulations. Again, we disagree.
The first instruction stated that a defendant willfully “fails to perform an act
required by a mandatory safety or health standard if he knows that the act is not
being performed and knowingly, purposefully, and voluntarily allows that omission
to continue.” J.A. 1556. Defendant maintains that this instruction “permits a finding
of willfulness . . . even if a person does not know that ‘the act’ in question is required
by safety regulations.” Appellant’s Br. at 46. But by using the definite article “the”
to modify “act,” the instruction required that the jury find that Defendant knew the
act was “required by a mandatory safety or health standard.” Cf. Gale v. First
Franklin Loan Svcs., 701 F.3d 1240, 1246 (9th Cir. 2012) (“In construing a statute,
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the definite article ‘the’ particularizes the subject which it precedes and is a word of
limitation.” (alterations and quotations omitted)).
The second instruction described willfully as “knowingly, purposefully, and
voluntarily tak[ing] actions that he knows will cause a standard to be violated.” J.A.
1556. The third instruction stated that an operator acts willfully if he “knowingly,
purposefully, and voluntarily fails to take actions that are necessary to comply with
the mandatory mine safety or health standard.” Id. Contrary to Defendant’s
argument, the use of “that” in each of these instructions required the jury to conclude
that Defendant knew the action or omission would “cause a standard to be violated”
or was “necessary to comply with the mine safety or health standard.” See The
Chicago Manual of Style § 5.220 (16th ed. 2010) (explaining that “that” is a “relative
pronoun . . . used restrictively to narrow a category or identify a particular item being
talked about”).
Accordingly, all three instructions reflect the “bad purpose” mens rea
discussed in Bryan because they required that the jury conclude that Defendant took
actions that he knew would lead to violations of safety laws or failed to take actions
that he knew were necessary to comply with federal mine safety laws—i.e.,
Defendant knew that his actions and omissions would lead to violations of mine
safety laws and regulations.
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V.
Finally, Defendant asserts that the district court reversibly erred in providing
the so-called “two-inference” instruction, pursuant to which it instructed the jury that
if it “view[ed] the evidence in the case as reasonably permitting either of two
conclusions—one of innocence, the other of guilt—the jury should, of course, adopt
the conclusion of innocence.” J.A. 1552. Defendant asserts that the two-inference
instruction impermissibly reduced the government’s burden of proof.
As explained previously, we review de novo whether a jury instruction
correctly stated applicable law, assessing “whether taken as a whole and in the
context of the entire charge, the instructions accurately and fairly state the
controlling law.” Jefferson, 674 F.3d at 351 (quotation omitted); see also United
States v. Khan, 821 F.2d 90, 92 (2d Cir. 1987) (determining whether use of “two-
inference” instruction constituted reversible error by assessing whether “the court’s
charge, taken as a whole, properly instructed the jury on reasonable doubt”).
Although this Court has not had an opportunity to pass judgment on the two-
inference instruction, our Sister Circuits disfavor it. See, e.g., United States v.
Dowlin, 408 F.3d 647, 666 (10th Cir. 2005); United States v. Jacobs, 44 F.3d 1219,
1226 (3d Cir. 1995); Khan, 821 F.2d at 93. In Khan, the Second Circuit explained
that, although correct as a matter of law, the two-inference instruction “by
implication suggests that a preponderance of the evidence standard is relevant, when
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it is not. . . . It instructs the jury on how to decide when the evidence of guilt or
innocence is evenly balanced, but says nothing on how to decide when the inference
of guilt is stronger than the inference of innocence but no[t] strong enough to be
beyond a reasonable doubt.” 821 F.2d at 93. We agree and therefore direct our
district courts not to use the two-inference instruction going forward.
Although we disapprove of the two-inference instruction, the district court’s
use of that instruction here does not amount to reversible error because, when viewed
as a whole, the court’s instructions correctly stated the government’s burden. In
particular, the court instructed the jury several dozen times that it needed to find
Defendant guilty beyond a reasonable doubt, including immediately before and after
it used the two-inference instruction. Likewise, the court correctly instructed the
jury regarding the presumption of innocence and the government’s burden.
Accordingly, the district court did not reversibly err in providing the two-inference
instruction. See, e.g., United States v. Soto, 799 F.3d 68, 96-97 (1st Cir. 2015)
(rejecting challenge to “two-inference” instruction under “any standard of review”
because “there was no ‘reasonable likelihood’ that the jury misunderstood the
government’s burden”); Dowlin, 408 F.3d at 666-67 (“The instructions as a whole
told the jury not to convict [the defendant] unless the government proved his guilt
beyond a reasonable doubt.”); United States v. Creech, 408 F.3d 264, 268 (5th Cir.
2005) (finding no reversible error in use of two-inference instruction when district
33
court repeatedly informed the jury of the presumption of innocence, the “heavy
burden borne by the government,” and that the law does not require the defendant to
prove his innocence); Khan, 821 F.2d at 92 (finding use of two-inference instruction
not reversible error because “[t]he judge instructed the jury several times on the
meaning of reasonable doubt and specifically told the jury to acquit unless it was
‘satisfied beyond a reasonable doubt of the defendant’s guilt’”).
VI.
For the foregoing reasons, we affirm the District Court’s judgment.
AFFIRMED
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