Blankenship conviction affirmed

US v. Blankenship:  In this appeal, former chairman and CEO of Massey Energy Company challenged his conviction for conspiracy to willfully violate federal mine safety laws and regulations, arising from the 2010 Upper Big Branch Mine disaster, which caused the death of 29 miners.  Blankenship challenged the district court’s decision not to dismiss the superseding indictment, denying Blankenship the opportunity to re-cross an alleged co-conspirator, the jury instruction for “willfully” under 30 U.S.C. § 820(d), and the jury instruction on the government’s burden of proof.  The Fourth Circuit affirmed Blankenship’s conviction and sentence.

The Fourth Circuit found that the district court’s decision not to dismiss the indictment was proper, as the language of the indictment tracked the language of the statute, and it included a 30-page factual background that identified numerous mine safety regulations that Blankenship allegedly conspired to violate.  The second claim of error, whether Blankenship was properly denied the opportunity to re-cross examine his former colleague.  The Fourth Circuit determined that the district court here “commendably” heard oral argument on the issue of whether the witness, Blanchard, raised new matter in his redirect testimony, and it concluded that he did not.  The Fourth Circuit held that all of the subjects on which Blankenship requested re-cross examination on were either dealt with on cross or were cumulative of other evidence introduced at trial, so no error occurred.

Third, Blankenship argued that the jury instruction for “willfully” violating federal mine safety and health standards was wrong.  The Fourth Circuit determined that “willfully” in the pertinent criminal statute could be defined in terms of “reckless disregard” as well as “plain indifference,” and that Blankenship’s willful conduct tracked the government’s theory of the case, in that he was repeatedly informed of safety violations at Upper Big Branch and instead of taking steps to prevent the violations from continuing, he chose to prioritize production and pay fines.  Further, for the purposes of the criminal statutes at stake in this case, the Fourth Circuit found that the district court properly concluded that willfulness encompasses reckless disregard, per congressional intent and the conclusions of other courts.  Moreover, Congress imposed penalties on corporate officers in addition to enterprise penalties because corporate officers will treat criminal penalties as a ‘license fee for the conduct of an illegitimate business’ to be factored into profit-maximization analyses, which the Fourth Circuit found that the government’s evidence showed Blankenship did here.  

Finally, Blankenship argued that the district court provided an improper “two-inference” jury instruction, which impermissibly reduced the government’s burden of proof.  While the Fourth Circuit definitely disapproved of the instruction, it found that the court’s instructions correctly stated the government’s burden, so the district court did not reversibly err in providing the two-inference instruction.