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IN THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-4193

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DONALD L. BLANKENSHIP,
Defendant-Appellant.
UNITED STATES’ RESPONSE TO DEFENDANT-APPELLANT’S
MOTION FOR RELEASE PENDING APPEAL
“[O]nce a person has been convicted and sentenced to jail, there is
absolutely no reason for the law to favor release pending appeal or even permit it
in the absence of exceptional circumstances.” United States v. Miller, 753 F.2d 19,
22-23 (3d Cir. 1985) (quoting H. Rep. No. 907, 91st Cong., 2d Sess. 186-87
(1970)).
A criminal defendant’s conviction and sentencing bring with them a strong
presumption that he will serve his sentence without delay. By his motion to stay his
sentence pending appeal, Defendant-Appellant Blankenship (“Defendant”) seeks to
evade that presumption. He cites four supposed reversible errors and says his
sentence should be delayed because of them. The record reveals, however, that the

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district court was exceptionally careful and thorough in resolving Defendant’s
legal contentions both before trial and during it. Defendant’s appellate claims
simply are weak, and success for him on appeal is improbable.
Defendant first attacks a jury instruction on the meaning of the term
“willfully” in the Mine Act. But the instruction was drawn directly from this
court’s controlling precedent on that term, which remains good law. Defendant
next claims that the indictment failed to name specific mine safety standards
involved in his conspiracy. But even a cursory review of the indictment reveals
that this claim is factually inaccurate: The indictment specifically names numerous
standards whose violation was part of the conspiracy. Defendant next contends that
the district court abused its discretion by not allowing him recross-examination of
a witness (Defendant’s motion incorrectly refers to “cross-examination”; in fact, it
was recross-examination). But Defendant had already cross-examined the witness
for four days, using approximately 180 exhibits; redirect examination of the
witness covered no new subject matter not addressed on cross-examination; and
the witness remained subject to recall by Defendant if Defendant wanted to call
him. Finally, Defendant asserts that one of the trial court’s jury instructions was an
impermissible definition of reasonable doubt. But in fact the instruction said

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nothing about reasonable doubt, and the instructions as a whole correctly instructed
the jury on reasonable doubt no fewer than 38 times.
None of Defendant’s claims has merit, and none rises to the level of a
substantial question likely to result in reversal. Defendant suggests that this
statutory requirement should be relaxed in his case because his sentence is only a
year, but the statute does not permit the appeals court to consider the length of a
defendant’s sentence in deciding whether to stay it. 18 U.S.C. § 3143(b). If a
defendant does not show the existence of a substantial question likely to result in
reversal, it makes no difference whether his sentence is a year or 40 years—the
sentence cannot be stayed. Id. Defendant has not met his burden to justify a stay of
sentence pending appeal, and his motion should be denied.
I.
On April 5, 2010, a massive explosion at Massey Energy Company’s
(“Massey”) Upper Big Branch mine (“UBB”), located in Montcoal, West Virginia,
killed 29 coal miners. U.S. Ex. 197.1 Almost immediately after the explosion,
reports of safety-law violations at the mine came to the attention of the Federal
Bureau of Investigation and the United States Department of Labor’s Office of
                                                            
1

Given the limited question under review in this motion, the United States’ response sets forth certain limited
factual background. The factual discussion relies on the evidence adduced at trial. Citations to “U.S. Ex.” and “Def.
Ex.” numbers refer, respectively, to United States and defense exhibits admitted at trial. Citations to “Tr.” refer to
pages of the trial transcript. Citations to “Voir Dire Tr.” and “Sntcg. Tr.” refer to pages of the respective transcripts
of voir dire and sentencing.

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Inspector General, and a criminal investigation began. Tr. 4963:8-22. Defendant
was the chief executive officer of Massey and the chairman of its board of
directors at the time of the explosion. U.S. Ex. 286. The investigation eventually
led to his conviction by a federal jury, on December 3, 2015, for conspiracy to
violate mandatory mine safety and health standards. Tr. 6165:1-10.
Although Defendant was the CEO of Massey, a large coal company with
many mines, the evidence at trial demonstrated that he personally supervised even
minor details of the UBB mine’s operations. He required that every new hire at
UBB receive his personal approval. U.S. Ex. 80; Tr. 2280:1-2281:6. He personally
had to approve any spending on outside contractors. U.S. Ex. 156; Tr. 2337:172339:18. He personally had to approve any pay raise, even for a small group of
employees at a single mining operation. U.S. Ex. 155; Tr. 2233:11-2334:16. And
he personally had to approve any purchase of mining equipment or other
expenditure of capital. Tr. 2281:7-2282:1.
At UBB, Defendant required that he personally receive a report every 30
minutes detailing how much coal was being produced in the mine’s longwall
mining section, which was the most profitable part of the mine. On evenings and
weekends, these reports had to be faxed to his home. Defendant monitored these
reports closely: When the mine failed once to send the required reports over a
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weekend, he responded with an angry memorandum: “I didn’t get any faxes
regarding the UBB longwall over the weekend, including last night and this
morning. Do you think that I should have to ask you yet again to keep me informed
every 30 minutes?” U.S. Ex. 153.
During much of the time period covered by the indictment, Defendant spoke
at least daily, and often more frequently than that, with the division president in
charge of UBB. Tr. 2286:7-14. In addition to these telephone conversations,
Defendant regularly sent the division president handwritten messages on coal
production at UBB. Tr. 2285:12-23. These communications provided direction on
details as small as the placement of a specific piece of equipment in one of the
mine’s many operating areas, or whether the mine could stop coal production for a
few hours to perform maintenance required by safety laws (Defendant objected
even to this brief delay in coal production for safety purposes). U.S. Exs. 158, 154.
When Defendant believed that the mine was spending too much money on workers
whose jobs focused on safety-law compliance instead of directly producing coal,
he demanded to personally review the job description of each such worker in order
to make cuts. U.S. Ex. 166. In March 2008, he ordered the division president to
stop building overcasts, which are structures needed to deliver fresh air to areas
where miners are working. U.S. Ex. 164; Tr. 2415:14-2418:24.
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Defendant also received daily information on how often UBB was being
cited for violating mine safety laws. During much of the period covered by the
indictment, he got a daily, internal report that showed him UBB was being cited
for hundreds of such violations annually, among the most of any of Massey’s
mines. U.S. Ex. 42. For several months before the mine exploded, the internal
reports showed him specific violations being cited at UBB, including many serious
citations for improper mine ventilation and accumulations of combustible
materials. Defendant regularly reviewed these reports. Tr. 611:2-9. They were even
part of a package of materials that had to be sent to him when he was out of the
office. Tr. 611:13-612:6.
From his position of control over the mine, Defendant fostered an
understanding—one that also involved other members of UBB’s management—
that such safety violations routinely would be committed in order to mine more
coal and do so more cheaply. The division president in charge of the mine testified
that there was an understanding at UBB that preventable safety violations would be
tolerated, and that Defendant shared in an understanding that it was cheaper to
break the safety laws than to follow them. Tr. 2243:11-2246:5. The division
president further testified that the majority of safety-law violations at UBB could
have been prevented by staffing the mine adequately and allowing enough non6
 

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production time to bring the mine into legal compliance. Tr. 2241:13-2242:10. He
testified that Defendant had the power both to provide adequate staffing and to
allocate sufficient worker time to safety-related tasks, but that in fact he did
neither. Tr. 2242:19-2243:1.
Defendant also explicitly discussed law-breaking at UBB with Bill Ross, a
Massey official who held the position of chief of technical services. Ross was a
former federal mine safety supervisor who joined Massey after retiring from
government service in 2008. Tr. 3867:3-3869:14. In the summer of 2009, he
confronted Massey officials, including Defendant, with blunt, urgent warnings
about safety violations at the company’s mines, singling out UBB as a mine of
special concern. U.S. Ex. 96. His warnings became the subject of a June 2009
memorandum to Defendant, which reported that Massey miners were “told to run,
run, run [coal] until we get caught; when we get caught, then we will fix it”; and
that they understood the company’s philosophy to be, “if you [miners] can get the
footage [of coal production], we can pay the fines.” Id. at 5. The company did not
staff its mines adequately to fulfill safety mandates, Ross explained. Id. at 2, 8.
Ross repeated these warnings in a one-on-one meeting with Defendant. He
specifically explained that adding one more miner in each of the company’s
mining sections (the areas of mines where coal is extracted) would improve
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compliance with safety laws. Tr. 4112:4-4113:15. Defendant responded by
indicating to Ross that the increased staffing would cost more than Defendant
wanted to spend. Tr. 4113:16-4114:3. (In 2009, the Massey division that included
UBB generated revenue of nearly $332 million. U.S. Ex. 152.) Ross answered that
the one thing the company could not afford was to have a mine disaster. Tr.
4116:9-17. Even after Ross warned Defendant about the need for more staffing to
follow safety laws, however, and even as UBB’s safety-law violations continued to
mount, staffing at UBB was slashed shortly before the explosion there—including
in positions specifically devoted to safety. Tr. 2509:16-2514:9, 2518:5-2519:8;
U.S. Exs. 176-77. Defendant’s response to Ross’ warnings, in a telephone
conversation that he secretly recorded, was to complain that they were “worse
than” articles in a state newspaper that frequently scrutinized Massey’s safety
record, and that the memorandum would be “a terrible document to be in
discovery.” U.S. Ex. 123.
Miners who worked at UBB testified to the working conditions caused by
the understanding that Defendant promoted. Miners were required to work in areas
that were inadequately ventilated, an illegal practice that can cause explosions. Tr.
322:2-3, 324:23-325:5, 1108:19-1109:31, 1676:19-21; 30 C.F.R. § 75.321. Illegal
accumulations of coal dust, which is explosive when suspended in air, pervaded
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the mine. Tr. 1671:15-1672:6; 30 C.F.R. § 75.400. Limestone dust, an inert
material that must be spread nearly everywhere in a mine to prevent and contain
explosions, was absent from large swaths of UBB, contrary to safety requirements.
Tr. 1040:14-15; 30 C.F.R. § 75.402. Understaffing and pressure to produce coal
even in illegal conditions produced rampant violations. Tr. 1482:6-21, 1660:101661:11, 1819:17-1820:20. Low-level supervisors who slowed coal production to
follow safety laws were threatened with firing. Tr. 1469:21-1470:4. Miners
understood that they were expected to violate safety laws in order to make more
money, or else. Tr. 1105:4-13.
Defendant, well aware of the practice of routine, preventable safety
violations at UBB, took steps that he knew would perpetuate it. In his
communications with subordinates, he reinforced a message that he put in writing
in a 2005 internal memorandum to mine superintendents, titled “RUNNING
COAL.” It said, “If any of you have been asked by your group presidents, your
supervisors, engineers or anyone else to do anything other than run coal (i.e. –
build overcasts, do construction jobs, or whatever), you need to ignore them and
run coal. This memo is necessary only because we seem not to understand that the
coal pays the bills.” U.S. Ex. 79. A witness who served as UBB’s mine
superintendent during part of the indictment period testified that he understood the
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memorandum to represent Defendant’s desired approach to running Massey’s
mines. Tr. 1612: 6-9.
Even as Defendant saw safety violations escalate at UBB, he continued to
pressure the mine to produce more coal with fewer miners. Tr. 3689:18-25,
3691:25-3693:2. He expressly directed UBB’s division president to ignore
ventilation at the mine, in contradiction of safety laws that mandate strict attention
to ventilation: A February 2008 memorandum instructed the president, “You need
to get low on UBB #1 and #2 and run some coal. We’ll worry about ventilation or
other issues at an appropriate time. Now is not the time.” U.S. Ex. 160. He ordered
UBB’s division president to operate one of the mine’s production sections when it
did not have a legally authorized ventilation plan, and when the president resisted,
accused him of letting federal mine safety officials run his mine. Tr. 2316:212317:24. In 2009, a year when UBB had among the highest levels of safety
violations of any mine at Massey, Defendant made its division president one of the
highest paid presidents in the company, with compensation exceeding $400,000.
Tr. 2301:1-2302:6.
Although Defendant sometimes spoke of concern for safety laws while CEO
of Massey, trial evidence showed that those expressions were only lip service.
Defendant surreptitiously recorded telephone conversations with his subordinates
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at Massey, and many of these recordings were obtained by the United States and
introduced as evidence at trial. In one, Defendant, referring to Massey’s vicepresident in charge of safety programs, said, “[Y]ou’ve got to have someone [in
that position] who actually understands that this game is about money.” Tr.
680:10-20; U.S. Ex. 123. In another, referring to a new safety initiative that he
wanted to announce in a securities filing, Defendant characterized the
announcement as a “chance to do some propaganda.” Tr. 679:11-25; U.S. Ex. 125.
At trial, one UBB miner after another testified that the company’s purported safety
initiatives either were ignored at UBB or were never communicated to the miners
there at all. See, e.g., Tr. 346:4-15 (testimony of former UBB miner Bobbie
Pauley); 347:7-16 (same); 1054:5-14 (testimony of former UBB miner Thomas
Gary Young); 1081:20-23 (testimony of former UBB miner Michael Smith);
1082:19-1083:5 (same); 1120:12-1121:8 (testimony of former UBB miner Brent
Racer); 1229:24-1230:9 (testimony of former UBB miner Clifton Stover);
1495:13-1496:5 (testimony of former UBB miner Richard Hutchens); 1697:1-11
(testimony of former UBB miner Larry Adams); 1766:6-22 (testimony of former
UBB miner Michael Ellison); 1861:9-13 (testimony of former UBB miner Stanley
Stewart).

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In the 15 months before the April 2010 explosion ended mining activity at
UBB, the mine had the third-most unwarrantable failure orders—the most serious
type of mine safety citation that exists under the Mine Act—of any mine in
America. Tr. 488:20-489:1. Its 59 unwarrantable failure orders during that time far
exceeded many mines that produced substantially more coal than UBB. U.S. Ex.
62.
II.
On November 13, 2014, a federal grand jury sitting in Charleston, West
Virginia, returned a four-count indictment of Defendant. The indictment charged
Defendant with conspiracy to willfully violate mandatory mine safety and health
standards, conspiracy to defraud the United States by impeding the federal Mine
Safety and Health Administration, making false statements to the United States
Securities and Exchange Commission, and securities fraud.
On March 10, 2014, the same grand jury returned a three-count superseding
indictment. The superseding indictment, in essence, combined the two conspiracy
counts into a single conspiracy with two objects. The false statement and securities
fraud counts were substantially unchanged.
Prior to trial, Defendant filed approximately 37 pretrial motions, including a
variety of motions to dismiss the indictment and superseding indictment. The
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district court entered detailed written orders ruling on those motions, denying all
the motions to dismiss.
On October 1, 2015, after summoning 300 prospective jurors and employing
extended juror questionnaires to gauge their ability to fairly decide the case, the
district court began jury selection. Dist. Ct. Docs. 322 (order summoning jurors),
351 (juror questionnaire). The district court conducted individual voir dire,
bringing each juror to the bench by himself or herself for an often-lengthy inquiry
into any preconceptions about the case or possible sources of prejudice. Voir Dire
Tr. 4:1-904:22.2 On October 6, 2015, after four days of jury selection and the
consideration of 183 prospective jurors, 12 jurors and three alternates were seated.
Voir Dire Tr. 902:21-904:2. The United States began presenting evidence the
following day. After nearly six weeks of testimony by 27 witnesses, and the
presentation of more than 500 exhibits, the case went to the jury on November 17,
2015. Tr. 5968:10-12. On December 3, 2015, after several days of deliberations
interrupted by a break for Thanksgiving, the jury convicted Defendant of
conspiracy to willfully violate mandatory mine safety and health standards. Tr.
6164:2-6165:10. The jury did not indicate a finding of guilt on the second object of
the charged conspiracy, defrauding the United States by impeding MSHA. Dist. Ct.
                                                            
2

The transcript of voir dire is separate from the transcript of the trial and has its own page numbering.

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Doc. 529. And it acquitted Defendant on the false statement and securities fraud
counts. Id.
Although the evidence at trial showed that Defendant’s conspiracy
jeopardized miners’ lives, federal law sets the maximum penalty for willfully
violating a mine safety standard at one year in prison and a $250,000 fine. 30
U.S.C. § 820(d). On April 6, 2016, the district court sentenced Defendant to those
maximums: one year’s imprisonment and a fine of $250,000. Dist. Ct. Doc. 585.
Prior to sentencing, Defendant filed a lengthy motion for a stay of his sentence
pending appeal, and the United States filed a written opposition. Dist. Ct. Docs.
575, 582. At sentencing, the district court, after noting that it had carefully
considered the parties’ submissions, denied Defendant’s motion. Sntcg. Tr. 73:1419.
On April 7, 2016, Defendant noted his appeal, and on April 12, 2016, he
filed the instant motion.
III.
“[O]nce a person has been convicted and sentenced to jail, there is
absolutely no reason for the law to favor release pending appeal or even permit it
in the absence of exceptional circumstances.” United States v. Miller, 753 F.2d 19,
22-23 (3d Cir. 1985) (quoting H. Rep. No. 907, 91st Cong., 2d Sess. 186-87
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(1970)). Consequently, it is presumed that a defendant sentenced to prison must
begin serving his sentence immediately rather than waiting for an appeal to run its
course. See 18 U.S.C. § 3143(b); Miller, 753 F.2d at 22-23 (“The Bail Reform Act
of 1984 was enacted because Congress wished to reverse the presumption in favor
of bail that had been established under the prior statute, the Bail Reform Act of
1966.”). In order to overcome this presumption, the burden is on the defendant to
show that his appeal “raises a substantial question likely to result in reversal, an
order for a new trial,” or certain other appellate relief. 18 U.S.C. § 3143(b)(1)(B).
A substantial question is a close question or one that very well could be decided
the other way. United States v. Steinhorn, 927 F.2d 195, 196 (4th Cir. 1991) (per
curiam).
The substantial-question standard is not just a technicality. It is not satisfied
merely because a defendant asserts that he believes the district court erred, or
because defense counsel can articulate reasonable-sounding arguments for appeal.
Put differently, a substantial question for purposes of release pending appeal must
be one that is more than just “fairly debatable,” or “fairly doubtful,” or “of more
substance than would be necessary to a finding that it was not frivolous.” United
States v. Perholtz, 836 F.2d 554, 555-56 (D.C. Cir. 1988). In virtually any case,
competent defense counsel can express a coherent, even polished, argument for
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reversal. The substantial-question standard requires more. Otherwise, a stay of
sentence pending appeal would become the norm, contrary to the congressional
intent to limit it to “exceptional circumstances.” Miller, 753 F.2d at 22-23.
There are compelling reasons for the presumption of detention pending
appeal. The District of Puerto Rico has explained the importance of a defendant
serving his sentence of imprisonment immediately following his conviction, noting
that Congress’ creation of the presumption of detention “was motivated by the
widely-held belief that detaining a defendant immediately after his conviction or . . .
sentencing, reinforces the deterrent effect of the criminal law by ensuring that the
public sees and understands the consequences of criminal activity.” United States
v. Vazquez-Botet, No. CRIM. 04-160 (JAF), 2007 WL 316438, at *2 (D.P.R. Jan.
31, 2007) (citing legislative history). See also United States v. Abuhamra, 389 F.3d
309, 320 (2d Cir. 2004) (“The interest in ensuring that guilty persons receive and
serve their sentences was also a significant impetus to the enactment of § 3143.”);
United States v. Shoffner, 791 F.2d 586, 589 (7th Cir. 1986) (“Congress’ desire to
reverse what it perceived as a presumption in favor of bail even after conviction
under prior bail law demonstrates its recognition that harm results not only when
someone is imprisoned erroneously, but also when execution of sentence is

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delayed because of arguments that in the end prove to be without merit.”) (internal
citation, quotation marks, and footnote omitted).
In addition to noting the potential damage to the deterrent effect of a
sentence, the Vazquez-Botet court was wary of implicating class-based double
standards through a forgiving application of the standards set by § 3143. As the
court explained,
Federal district courts and judges in the courts of appeals know very
well that the Congressional policy behind the Bail Reform Act and the
subject of post-conviction and sentencing detention must be wisely
administered, in order to protect the criminal justice system from the
wrong perception that judges have two measuring sticks, one for
regular criminals and a more lenient one for the white-collar
defendant.
Vazquez-Botet, 2007 WL 316438, at *1.
IV.
Defendant raises four claims of error below in support of his motion for a
stay. None overcomes the substantial presumption in favor of detention that
Congress imposed in the Bail Reform Act of 1984.
None of the three trial rulings with which Defendant takes issue (two jury
instructions and the denial of recross-examination; the ruling on the sufficiency of
the indictment came before trial) was in error. Notwithstanding, each ruling would
be subject to a harmless error analysis, should any error be perceived. An error is
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harmless if it did not have a “substantial and injurious effect or influence in
determining the jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619, 623 (1993).
Harmless error review is used for any “trial error” that “occurs during the
presentation of the case to the jury,” and “may be quantitatively assessed in the
context of other evidence presented in order to determine the effect it had on the
trial.” Tuggle v. Netherland, 79 F.3d 1386, 1391 (4th Cir. 1996) (quotation marks
and alterations omitted). “[I]f the defendant had counsel and was tried by an
impartial adjudicator, there is a strong presumption that any other errors that may
have occurred are subject to harmless-error analysis.” Rose v. Clark, 478 U.S. 570,
579 (1986). “Even a ‘jury instruction that omits an element of the offense’ does not
‘necessarily render a trial fundamentally unfair.’” United States v. Smith, 723 F.3d
510, 515 (4th Cir. 2013) (quoting Neder v. United States, 527 U.S. 1, 8 (1999)).
Contrary to Defendant’s assertion, none of the “trial errors” he cites are
structural errors. The structural error designation is reserved for the “limited class
of cases” in which an error amounts to a “defect affecting the framework within
which the trial proceeds.” Johnson v. United States, 520 U.S. 461, 468 (1997).
Examples of structural errors include denial of counsel and the lack of an impartial
trial judge. An erroneous reasonable-doubt instruction was held to be a structural
error in Sullivan v. Louisiana, 508 U.S. 275 (1993), when the court gave a
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definition of reasonable doubt that was previously held unconstitutional by the
Supreme Court. Id. at 277 (explaining that the instruction was essentially identical
to the one held unconstitutional in Cage v. Louisiana, 498 U.S. 39, 41 (1990)).
Even if this court accepts Defendant’s contention that the trial court attempted to
define “reasonable doubt” for the jury in this case, the language used by the trial
court—which the Second Circuit has described as “obviously correct,” United
States v. Khan, 821 F.2d 90, 93 (2d Cir. 1987)—cannot be compared to the plainly
wrong definition of reasonable doubt that triggered reversal in Sullivan.
Thus, each of the trial issues Defendant presents as “substantial questions”
are subject to harmless error review only. In the context of the overwhelming
evidence against Defendant presented at trial, none of those issues, if decided in his
favor, would require reversal.
A.
Defendant first claims that the district court erroneously instructed the jury
on what the term “willfully” means in the Mine Act of 1977 (“Mine Act”). The
Mine Act makes it a crime to willfully violate a mandatory federal mine safety or
health standard. 30 U.S.C. § 820(d). Defendant was convicted of conspiring to
willfully violate such standards, in violation of the conspiracy provision in 18
U.S.C. § 371. At trial, the district court gave jury instructions defining willfulness
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in the context of the Mine Act prohibition at issue. These instructions relied on the
Fourth Circuit’s controlling precedent on willfulness under the Mine Act: United
States v. Jones, 735 F.2d 785 (4th Cir. 1984).
In Jones, a coal mine superintendent and the mine’s night shift supervisor
were charged with willfully violating mandatory mine safety standards. 735 F.2d at
787 & n.1. The Jones trial court’s instructions on willfulness included the
following:
A violation of a safety standard is done willfully if it is done
knowingly, purposely and voluntarily either in intentional
disobedience of the standard or in reckless disregard of its
requirements. . . . The term willfully requires an affirmative act either
of commission or omission, not merely the careless omission of a
duty.
Id. at 789 & n.6 (emphasis added). On appeal in Jones, this court approved those
instructions, relying on precedent from the Supreme Court, this court, and the Sixth
Circuit. Id. at 790 (citing United States v. Gullett, 713 F.2d 1203, 1212 (6th Cir.
1983)).
Jones also made a key ruling on a mine supervisor’s failure to prevent
ongoing violations. The case featured evidence that the defendant mine
superintendent, who oversaw the mine, knew that those under his supervision
routinely were violating mandatory mine safety standards and knowingly allowed
those violations to continue. 735 F.2d at 791. Jones held that such evidence is
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sufficient to sustain a conviction for willful mine safety violations. Id. In other
words, the law of Jones is that if a mine supervisor knows that regular safety
violations are occurring, has the power to stop them, but allows them to continue,
he thereby willfully violates the Mine Act.
The district court’s jury instructions on willfulness under the Mine Act
derived directly from Jones. This not only was proper, it was necessary. It would
have been error for the district court to ignore this circuit’s controlling precedent
on willfulness in this context. Contrary to Defendant’s claim that the Jones
instructions were “special instructions” invented by the United States, they simply
were the law of the Fourth Circuit.
Notwithstanding the precedent in Jones, Defendant seeks to persuade this
court that the district court’s Mine Act willfulness instructions were erroneous.
Specifically, he challenges the district court’s reliance on two points from Jones:
(1) that a mine operator can willfully violate a mine safety standard if he acts in
reckless disregard of its requirements, and (2) that the willfulness standard can be
satisfied by willfully omitting or failing to perform a required duty.
For purposes of the limited issue currently before the court, it is enough that
both these aspects of the district court’s instructions followed binding Fourth
Circuit precedent. Jones expressly approved, in a Mine Act case, the use of a
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willfulness instruction that incorporates reckless disregard for the requirements of
a mine safety standard. It expressly approved an instruction that willfulness can
occur through the willful omission to perform a required duty. And it ruled that a
mine supervisor willfully violates a mine safety standard when he knows that the
standard is being regularly violated, has the power to stop those violations, and yet
allows them to continue. For Defendant to prevail on this claim of error, Jones
would have to be overruled either by the en banc appeals court or the Supreme
Court of the United States. See McMellon v. United States, 387 F.3d 329, 333 (4th
Cir. 2004) (en banc). The remote possibility that a controlling precedent might be
overruled in that fashion does not rise to the level of a substantial question likely to
result in reversal.
Despite the existence of this dispositive precedent, Defendant raises two
challenges to Jones. He claims, first, that Jones concerned a knowing mens rea
instead of a willful one and thus does not apply here. That is incorrect. The
indictment in Jones specifically alleged willful mine safety violations, and the
Jones district court instructed the jury on a willfulness standard. Jones, 735 F.2d at
789 n.6. In considering the appeal, this court reviewed and approved of the
instruction on willfulness, and it ruled that evidence of a supervisor’s knowingly
allowing violations was sufficient to establish willfulness. Id. at 790. It is true that
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Jones involved convictions under 30 U.S.C. § 820(c) instead of § 820(d), which is
the provision charged in the instant case, and that § 820(c) involves a knowing
mens rea. Jones, 735 F.2d at 789. But because the indictment in Jones alleged
willful violations instead of knowing ones, this court analyzed—and its resulting
precedent established—the standard for willfulness in criminal Mine Act cases.
Defendant also suggests, somewhat obliquely, that a 1998 Supreme Court
decision implicitly abrogated Jones. Def. Mot. 15. The decision that Defendant
cites is Bryan v. United States, 524 U.S. 184 (1998). Bryan, however, concerned a
particular species of willfulness question that arises commonly and that is different
from the question presented here: whether the willful mens rea in a given criminal
prohibition requires knowledge of the specific statutory provision that the
defendant is alleged to have violated. 524 U.S. at 186. Over the years, a handful of
decisions have imposed such a heightened willfulness requirement in narrow
contexts. In Cheek v. United States, 498 U.S. 192, 201 (1991), for example, the
Supreme Court held that a defendant could be convicted of a particular kind of
willful tax violation only if he knew of the specific provision of the tax code that
he was violating. The defendant in Bryan, like many defendants in cases where
willfulness is an element, wanted the Court to apply the same heightened
willfulness standard to the provision under which he had been convicted: one that
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required a license to deal in firearms. 524 U.S. at 186. The Court declined. Id. at
196. Bryan thus stands for the proposition that one need not know of the particular
provision requiring a firearms-dealing license in order to be guilty of violating it,
so long as one knows that one’s conduct generally is unlawful.
Bryan did not purport to impose a uniform definition of willfulness in all
cases, or to disturb interpretations of willfulness that courts, including the Supreme
Court, had adopted in other statutory contexts. On the contrary, it recognized that
“the word ‘willfully’ is . . . ‘a word of many meanings’ whose construction is often
dependent on the context in which it appears.” 524 U.S. at 191 (citing Spies v.
United States, 317 U.S. 492, 497 (1943)); see also Ratzlaf v. United States, 510
U.S. 135, 139 (1994) (“‘Willful,’ this Court has recognized, is a ‘word of many
meanings,’ and ‘its construction is often influenced by its context.’” (internal
alternations omitted)). The interpretation of willfulness in Bryan had nothing to do
with the different interpretive context of the Mine Act. Nor did it have anything to
do with definitions of willfulness that include reckless disregard for a known legal
requirement. And it said nothing about definitions of willfulness that include a
failure or omission to comply with a known legal obligation.
The courts, including the Fourth Circuit, certainly have not understood
Bryan to invalidate definitions of willfulness that include reckless disregard for a
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legal requirement. In 2003, for example, five years after Bryan, this court affirmed
that reckless disregard continues to constitute willfulness in the context of a police
officer’s violation of civil rights under 18 U.S.C. § 242. United States v. Mohr, 318
F.3d 613, 618-19 (4th Cir. 2003); accord United States v. Bradley, 196 F.3d 762,
769 (7th Cir. 1999); United States v. Thompson, 579 F. Appx. 552, 553 (9th Cir.
2014) (unpublished) (citing United States v. Koon, 34 F.3d 1416 (9th Cir. 1994)).
In 2007, nine years after Bryan, the Ninth Circuit expressly approved a jury
instruction that defined willfulness, in the context of health care fraud, to include
reckless indifference to the truth or falsity of one’s statements. United States v.
Dearing, 504 F.3d 897, 902-03 (9th Cir. 2007). In 2000, three years after Bryan,
the Sixth Circuit reaffirmed pre-Bryan decisions holding that reckless disregard
could establish willfulness in prosecutions for willful misapplication of bank funds
under 18 U.S.C. § 656 and for conspiracy to defraud the United States under 18
U.S.C. § 371. United States v. Krimsky, 230 F.3d 855, 860-61 (6th Cir. 2000). And
in the Sixth Circuit, specifically in the context of the Mine Act, the instructions
from Jones—including the language on reckless disregard of a safety requirement
and on willful omissions—remain good law even after Bryan. United States v.
Manalapan Mining Co., No. Crim. 12-05-GFVT, 2012 WL 5198455, at *1 (E.D.
Ky. Oct. 19, 2012) (citing United States v. Consolidation Coal Co., 504 F.2d 1330,
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1335 (6th Cir. 1974), on which Jones relied, as the “definitive interpretation” of
willfulness under the Mine Act)).
The district court’s Jones instructions correctly stated binding precedent in
this circuit. Bryan did not affect the validity of the Jones instructions or similar
willfulness instructions used in other contexts, as this court and others have
repeatedly recognized. Because controlling precedent confirms the correctness of
the Jones instructions given in this case, those instructions do not raise a
substantial question likely to result in reversal.
B.
Defendant next asserts that the indictment was deficient because it failed to
name specific mine safety standards the violation of which was part of the
conspiracy. That claim simply is incorrect as a factual matter. The indictment (to
be specific, the superseding indictment, which is the version of the indictment
under which Defendant was tried) identifies no fewer than six specific mandatory
mine safety or health standards that Defendant conspired to violate. See
Superseding Indictment at 5-12 (¶¶ 12-36). These include standards governing
minimum airflow in a mine (¶ 12), construction requirements for proper ventilation
(¶ 13), safety examinations (¶ 14), ventilation plan and water spray specifications
(¶ 21), support of mine roof and walls (¶ 28), and explosive coal dust and
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combustible materials (¶ 31). The indictment specifically alleges that these
standards were routinely violated at UBB and that those violations were overt acts
in furtherance of the conspiracy. Sup. Ind. ¶¶ 16, 28, 31, 100(j). The paragraphs of
the indictment that named these specific standards were expressly incorporated
into Count One (the count of conviction) in two separate places. Id. ¶¶ 86, 100(j).
And the indictment specifically identified these as standards contained in Title 30,
Code of Federal Regulations, Chapter I.3
The Supreme Court has identified two criteria for measuring the sufficiency
of an indictment: (1) whether the indictment contains the elements of the offense
intended to be charged and sufficiently apprises the defendant of what he must be
prepared to meet, and (2) whether it is specific enough to make a plea of double
jeopardy possible. Russell v. United States, 369 U.S. 749, 763-64 (1962).
Count One of the superseding indictment unambiguously tracks the language
of the statute that contains the object of the conspiracy, unlike the indictments in
United States v. Hooker, 841 F.2d 1225 (4th Cir. 1988), and United States v.
                                                            
3

To the extent Defendant implies that his conviction should be reversed because the indictment does not cite
specific C.F.R. sections and subsections corresponding to each mine safety standard it names, it is settled law that a
statutory citation has no effect on the legal force of an indictment. See Fed. R. Crim. P. 7(c) (“[N]either an error in a
citation nor a citation’s omission is a ground to dismiss the indictment or information or to reverse a conviction.”);
United States v. Hooker, 841 F.2d 1225, 1227-28 (4th Cir. 1988) (“in testing the sufficiency of an indictment, it is
the statement of facts in the pleading, rather than the statutory citation that is controlling”) (internal quotation marks
omitted).
 

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Kingrea, 573 F.3d 186, 191 (4th Cir. 2009), which omitted language from the
underlying statutes. The indictment in this case is replete with examples of the
specific standards that were violated and even dates on which citations for such
violations occurred. Defendant does not even attempt to make a colorable
argument that he lacked notice of the charges against him, nor does he assert that it
would be impossible for him to make a plea of double jeopardy. Defendant’s
efforts to cast this issue as a substantial question fail.
C.
Defendant next challenges the lack of recross-examination of Christopher
Blanchard, the former Massey division president who oversaw UBB. As an initial
matter, the terminology used in Defendant’s motion requires some clarification.
Defendant states that he was unable to conduct cross-examination of Blanchard,
but that statement is incorrect. Defendant did cross-examine Blanchard. The crossexamination, in fact, lasted for four days. The asserted error pertains not to crossexamination, but to Defendant’s demand to recross-examine Blanchard.
A trial court’s decision on whether to allow recross-examination of a witness
is reviewed for abuse of discretion—something else Defendant’s motion fails to
say. United States v. Fleschner, 98 F.3d 155, 158 (4th Cir. 1996). Under the abuse
of discretion standard, the appeals court may not substitute its judgment for that of
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the district court; rather, it must determine whether the district court’s exercise of
discretion, considering the law and the facts, was arbitrary or capricious. United
States v. Vidacak, 553 F.3d 344, 348 (4th Cir. 2009).
The question presented here, then, is whether the district court’s decision not
to allow recross-examination of Blanchard, which was a routine matter of trial
management, was arbitrary and capricious. Given the deferential standard of
review, this is not a substantial question likely to result in reversal. A review of
Blanchard’s testimony and the district court’s decision shows why.
1.
The United States called Blanchard to the witness stand on the afternoon of
Thursday, October 22, 2015, the 11th day of trial, questioning him for the rest of
that day and the morning of the following day. Tr. 2239-2523. In this direct
examination, Blanchard testified to an understanding that he shared with
Defendant: that preventable safety violations were going to be tolerated at UBB,
and that it was cheaper to break the safety laws than to follow them. Tr. 2243:112246:5. He testified that Defendant had the power to take straightforward steps that
would have eliminated the majority of safety violations at UBB, but decided
instead to run the mine in a manner that caused violations to continue. Tr. 2241:132243:1. He testified that Defendant was aware of the large number and grave
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nature of safety violations cited at UBB, receiving daily information about them.
Tr. 2499:13-2504:14; U.S. Ex. 212.
Defense counsel began cross-examining Blanchard on the afternoon of
Friday, October 23, 2015. Tr. 2523:18. The cross-examination continued the
following Monday, Tuesday, and Wednesday before finally concluding shortly
before noon on Thursday, October 29, 2015—a week after Blanchard initially took
the stand. Tr. 2523-3320. The transcript of this marathon cross-examination spans
nearly 800 pages.
Two predominant subjects of the cross-examination were, first, the
understanding that Blanchard shared with Defendant regarding safety violations at
UBB, and second, citations issued for safety violations at UBB. The crossexamination returned to each of these subjects again and again over the four days
of questioning. On the subject of Defendant and Blanchard’s shared understanding,
the cross-examination elicited dozens of statements designed to show that no such
understanding existed. See, e.g., Tr. 2531:15-17, 2616:18-22, 2694:5-15, 2694:1924, 2593:10-13, 2626:1-4, 2828:24-2829:1, 2833:2-5, 2852:1-5. On the subject of
citations at UBB, Defendant questioned Blanchard concerning approximately 59
such citations during the cross-examination. Def. Exs. 119, 121, 122-27, 131, 13440, 142, 144, 146, 148-52, 158-59, 161-62, 164, 166, 168-69, 190A-C, 194, 19830
 

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204, 207-08, 210-26. He asked questions that sought to show three things: One,
UBB safety violations were trivial: Some citations issued at UBB were for what
Defendant suggested were minor matters rather than serious safety violations. See,
e.g., Tr. 2838:4-12 (identification tag missing from miner’s belt); 2838:7-2840:3
(citation for unsanitary bathing facilities). Two, concern by senior Massey
management: Some citations issued at UBB triggered written criticisms from
Massey’s chief operating officer (“COO”), which Defendant suggested showed the
absence of an understanding that willful violations would be committed. See, e.g.,
Tr. 2674:10-2679:18. And three, discipline: Some citations issued at UBB resulted
in discipline for rank-and-file workers, which Defendant also suggested showed
the absence of an understanding to commit violations. See, e.g., Tr. 2709:152710:14; 2714:13-18.
The United States’ redirect examination of Blanchard began at midday on
Thursday, October 29, 2015. Tr. 3320. It continued into the following day, a
Friday, and concluded shortly before 4:00 p.m. Tr. 3701. The redirect examination
covered the same two subjects described above, which had been explored
exhaustively on cross. Concerning Defendant and Blanchard’s shared
understanding about safety violations, Blanchard reiterated on redirect that it was
his understanding from Defendant that violating safety laws was cheaper than
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spending the money necessary to follow them. Tr. 3322:20-3321:7. Concerning
citations issued at UBB, the United States showed Blanchard a number of citations
and asked questions about the three points emphasized on cross: was the citation
for a trivial violation or a serious safety problem? Did the citation trigger a
concerned response from the company’s COO? And did the citation result in
discipline? See, e.g., Tr. 3409:4-3413:21.
When the redirect examination ended, Defendant sought recrossexamination of Blanchard, despite the court’s previous decision that recrossexamination generally would not be permitted. Tr. 3701:9-10 (Defendant’s request
for recross-examination); 296:13-16 (trial court states that recross-examination
generally will not be permitted unless new matters raised in redirect that would
require it). The parties offered oral argument supporting and opposing that request.
Tr. 3701:16-3710:10. The court took the matter under advisement. Tr. 3714:1-5.
Over the ensuing weekend, both parties made written submissions further stating
their positions. Tr. 3720:19-22. Monday, November 2, 2015, was a day off from
trial. Late that afternoon, the district court, having reviewed the parties’ written
submissions, convened a telephonic hearing to rule on the recross-examination
request. Tr. 3720:21-22.

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In the hearing, the district court denied the request for recross-examination
and explained its reasoning in detail. Tr. 3720:23-3735:10. The district court
concluded that the redirect examination had not raised new matters within the
meaning of the case law, but rather had been confined to the same subjects as the
direct examination and cross-examination. Tr. 3721:12-16, 3722:21-3723:4,
3723:21-24, 3729:14-25, 3734:17-3735:6. The district court supported this
conclusion with numerous specific citations to the transcript of Blanchard’s
testimony. Tr. 3722:2, 3722:17-20, 3723:18-20, 3727:10-3729:13, 3730:21-25,
3734:12-13.
2.
The legal test for whether recross-examination is required is this: did the
redirect examination raise subjects not previously addressed with the witness?
United States v. Fleschner, 98 F.3d 155, 158 (4th Cir. 1996) (affirming trial court’s
denial of recross-examination where redirect examination was limited to “subjects
which had been the subject of the direct examination of the witnesses”); see also
United States v. Pina, 974 F.2d 1241, 1244-45 (10th Cir. 1992) (affirming denial
of recross-examination where redirect examination elicited testimony that
contradicted cross-examination testimony but remained within topics raised in
cross-examination). Here, the trial court correctly applied that standard. Tr.
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3721:12-16, 3722:21-3723:4, 3723:21-24, 3729:14-25, 3734:17-3735:6. Because
the redirect examination concluded on a Friday afternoon, the trial court was able
to use the weekend to review the parties’ positions and the transcript of
Blanchard’s testimony, and prepare a detailed ruling as to why the redirect
examination did not raise new subjects.
The conclusion that the trial court reached was correct. As explained above,
the subjects that Defendant claims should have triggered recross-examination were
the same subjects that dominated much of Defendant’s cross-examination: the
existence (or absence) of a shared understanding between Defendant and
Blanchard; and whether citations issued at UBB were trivial, or resulted in
discipline or concerned responses from Massey executives. The redirect
examination merely tested the testimony given on these subjects on crossexamination. It raised no subjects that were not covered exhaustively in
Defendant’s four-day cross-examination. Cf. United States v. Turner, 441 F.2d
736, 739 (5th Cir. 1971) (“This record shows 56 pages of full, searching, and
competent cross-examination of the government informer, and it does not appear
that the Trial Court abused its discretion in denying recross-examination.”).
Although the trial court’s ruling was, in fact, the correct one, the question on
appeal is not whether the appeals court would have made the same ruling as the
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trial court. Rather, on review for abuse of discretion, the question is whether the
district court’s exercise of discretion, considering the law and the facts, was
arbitrary or capricious. United States v. Vidacak, 553 F.3d 344, 348 (4th Cir.
2009). The facts of this case demonstrate why such broad discretion is necessary.
Blanchard’s testimony spanned seven days of trial and consumed more than 1400
transcript pages. Tr. 2523-3320. Only the trial court was present for these many
hours of testimony, and only the trial court was in a position to make an informed
ruling on whether, given the totality of the testimony, the redirect examination
truly raised new subjects that would require recross-examination.
The trial court’s ruling was not arbitrary or capricious. It applied the correct
legal standard and reached a reasoned—and reasonable—conclusion after
considerable deliberation. It placed extensive analysis on the record. If the appeals
court now substitutes its own judgment for the trial court’s and requires a new trial
under these circumstances, it would badly undermine the latitude necessary for
district courts to manage their own trials.
Defendant cites as support United States v. Caudle, 606 F.2d 451 (4th Cir.
1979). In Caudle, though, at least as far as the appellate opinion discloses, there
had been no four-day cross-examination that comprehensively covered the same
subjects later raised on redirect examination. The decision whether to permit
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recross-examination necessarily is highly specific to the facts and circumstances of
each trial and each witness. That the facts of Caudle warranted recrossexamination in no way renders the trial court’s ruling here, in a vastly different
case, arbitrary and capricious.
Finally, even if the appeals court concludes that the trial court abused its
discretion, the error nonetheless was harmless. If Defendant wished to further
examine Blanchard, he had every ability to call him as its own witness. This court
previously has recognized, albeit in an unpublished decision, that the denial of
recross-examination is harmless when the appealing party could have called the
witness itself to explore points it wished to further examine. United States v.
Gibson, 187 F.3d 631, 1999 WL 543220, at *5-6 (4th Cir. July 27, 1999)
(unpublished; reporter citation is to table of unpublished dispositions), judgment
vacated on other grounds, 531 U.S. 801 (2000)) (“Because the defense was
permitted to recall witnesses if it wanted to explore new points brought out on
redirect, any error in denying recross-examination was harmless.”); see also
Fleschner, 98 F.3d 155, 158 (4th Cir. 1996) (affirming denial of recrossexamination; noting that “a further examination by the defendants’ attorney not in

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the form of a cross-examination”—that is, a direct examination by the defense
itself—could have been permissible).4
The question of whether the trial court acted arbitrarily or capriciously in
denying recross-examination of Blanchard is not a substantial question likely to
result in reversal. Defendant’s contention in that regard does not warrant a stay of
his sentence pending appeal.
D.
Defendant’s final attempt to frame a substantial question comes in the form
of an objection to a line in the jury charge instructing the jury that, if it views the
evidence as reasonably permitting a conclusion of guilt or innocence, then it should
adopt the conclusion of innocence. Defendant interprets this instruction as an
impermissible definition of “reasonable doubt,” in spite of the fact that the
instruction does not purport to define reasonable doubt, or even mention it.
Defendant asserts that this so-called “two-inference” language has been
disapproved by “several circuits,” yet, notably cites to only a single Tenth Circuit
case. Def. Mot. at 32 (citing United States v. Dowlin, 408 F.3d 647 (10th Cir.
2005)). This is likely because no court of appeals has come out so strongly against
                                                            
4

The United States recognizes that citation of unpublished opinions issued prior to 2007 is disfavored. 4th Cir. R.
32.1. But the United States has not located a published decision of this court that analyzes as directly as Gibson the
question of when denial of recross-examination is harmless error. See 4th Cir. R. 32.1 (permitting citation of pre2007 unpublished decisions if there is no published opinion that would serve as well).

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this language as to require reversal. The court in Dowlin disfavored the language to
which Defendant objects, but did not characterize it as a definition of reasonable
doubt, and found no reason to reverse where the “[t]he instructions as a whole told
the jury not to convict [the defendant] unless the government proved his guilt
beyond a reasonable doubt.” Dowlin, 408 F.3d at 666-67.
In context, the two-inference instruction given in this case directly followed
the sentence, “So, if the jury, after careful and impartial consideration of all the
evidence in the case, has a reasonable doubt that a defendant is guilty of the
charge, it must acquit.” Tr. 5793:25-5794:3. The entirety of the jury charge
reiterated that the government must prove Defendant guilty beyond a reasonable
doubt at least thirty-eight times. There is no flicker of possibility that the jury
misunderstood its duty as one to convict—as Defendant asserts—upon a finding of
a preponderance of the evidence instead of guilt beyond a reasonable doubt.
There are other circuits that have examined the two-inference language.
The Second and the Third Circuits criticized the language but found that, when
taken as a whole, jury instructions that conveyed the burden of reasonable doubt
were not rendered deficient by the inclusion of the language. United States v.
Jacobs, 44 F.3d 1219, 1226 (3d Cir. 1995) (calling defendant’s challenge to the

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language a “rather subtle argument”); United States v. Khan, 821 F.2d 90, 92 (2d
Cir. 1987).
The First Circuit, referring to the same language as the “two-conclusions”
language, explained that, “[r]ead literally, the . . . instruction merely emphasizes
that in a close case the jury must acquit; it says nothing about the government’s
burden of proof.” United States v. Fuentes, 57 F.3d 1061, 1995 WL 352808, at *1
(1st Cir. 1995) (unreported; reporter citation is to table of unpublished
dispositions). The court went on to state that, “we do not think that a jury
repeatedly instructed on the reasonable doubt standard could view the twoconclusions charge as substituting for or modifying the reasonable doubt standard.”
Id.
None of these cases considered the two-inference language to be an attempt
to define reasonable doubt. Because the language does not define reasonable doubt,
the Fourth Circuit cases barring definitions of reasonable doubt are inapplicable.
See United States v. Thompson, No. 6:02-102-HMH, 2007 WL 2815586, at *3
(D.S.C. Sept. 25, 2007) (rejecting challenge to instruction that included the twoinference language, and finding that the trial court “properly charged the jury and
did not define reasonable doubt.”).

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At best, Defendant’s appellate argument against the two-inference
instruction is a plea to the appeals court to (1) unnecessarily take a position on
common jury charge language and (2) go to lengths that no court has gone and
hold that such language is sufficient—despite dozens of instructions that the
United States was required to prove guilt “beyond a reasonable doubt”—to warrant
reversal. This is far from the “close question” contemplated in 18 U.S.C. §
3143(b)(2).
V.
A stay of sentence pending appeal should be granted only in exceptional
circumstances. The statutory presumption is that a defendant will begin serving his
sentence immediately, for reasons of fairness and deterrence. Defendant has failed
to meet the burden necessary to overcome that presumption.
The questions presented by Defendant are not of the exceptional variety that
would warrant a stay of sentence. His first claim, on the meaning of “willfully” in
the Mine Act, would require the court to overrule longstanding Fourth Circuit
precedent that is consistent with very recent precedents from other courts. His
second claim, asserting that the indictment failed to name the specific safety
standards violated as part of the conspiracy, is wrong as a factual matter. On his
third claim, concerning the recross-examination of Christopher Blanchard, the
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record reveals not the sort of arbitrary and capricious ruling that would constitute
abuse of discretion, but rather a careful application of correct legal principles in a
matter of trial management that is committed to the trial court’s sound discretion.
And Defendant’s final claim attacks an instruction that in no way purported to
define reasonable doubt and that, even in circuits where it has been questioned, has
not resulted in reversal. The jury was correctly instructed on the reasonable doubt
standard 38 times.
None of Defendant’s contentions raise a substantial question likely to result
in reversal. If the court were to grant Defendant’s motion, it would upend the
statutory presumption favoring immediate service of sentence. Defendant’s motion
should be denied.
Respectfully submitted,
CAROL A. CASTO
Acting United States Attorney
By:
/s/ Steven R. Ruby
STEVEN R. RUBY
Assistant United States Attorney
WV Bar No. 10752
300 Virginia Street, East
Room 4000
Charleston, WV 25301
Telephone: 304-345-2200
Fax: 304-347-5104
Email: steven.ruby@usdoj.gov

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CERTIFICATE OF SERVICE
It is hereby certified that service of the foregoing “United States’ Response
to Defendant-Appellant’s Motion for Release Pending Appeal” has been
electronically filed and service has been made on opposing counsel by virtue of
such electronic filing on this 25th day of April, 2016, to:

William W. Taylor, III
Michael R. Smith
Eric R. Delinsky
Zuckerman Spaeder LLP
1800 M Street, NW, Suite 1000
Washington, DC 20036

/s/ Steven R. Ruby
STEVEN R. RUBY
Assistant United States Attorney
WV Bar No. 10752
300 Virginia Street, East
Room 4000
Charleston, WV 25301
Telephone: 304-345-2200
Fax: 304-347-5104
Email: steven.ruby@usdoj.gov

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