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No. 16-4193
____________________________
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
____________________________
UNITED STATES,
Appellee,
v.
DONALD L. BLANKENSHIP,
Appellant.
____________________________
On Appeal from the United States District Court
For the Southern District of West Virginia (Criminal No. 5:14-cr-244)
The Honorable Irene C. Berger, District Judge
____________________________

APPELLANT’S REPLY TO UNITED STATES’ RESPONSE
TO MOTION FOR RELEASE PENDING APPEAL
____________________________

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TABLE OF CONTENTS

I.

The Special Willfulness Instruction Given In This Case Was Not
Approved In Jones And Is Contrary To Bryan. .................................................2

II.

The Indictment‟s Inclusion Of Allegations About Safety Violations,
Without Identifying The Safety Standards The Defendant Agreed To
Violate And Without Alleging The Elements Of Those Standards, Is
Insufficient Under Hooker And Kingrea. ..........................................................6

III. The Government‟s Reliance On Abuse Of Discretion And Harmless
Error Doctrines As To The Denial Of Cross-Examination Of Chris
Blanchard On Matters That The Government Reserved For Redirect
Examination, And Its Analysis Of What Qualifies As “New Matter”
Elicted On Redirect Examation, Directly Conflict With United
States v. Caudle. .................................................................................................8
IV. The Government Does Not Even Argue That It Was Proper To Give
The Two-Inference Reasonable Doubt Instruction. .........................................11
V. Conclusion ........................................................................................................14

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The government‟s opposition to release pending appeal does not dispute the
District Court‟s finding that Mr. Blankenship does not pose a risk of flight or
danger. Nor does the government argue that the purpose of appeal is to delay.
Thus, notwithstanding the background presumption in favor of detention on which
the government leans so heavily, the government never disputes that the
presumption will have been refuted, and that 18 U.S.C. § 3143(b)(1) will mandate
release pending appeal, if Mr. Blankenship presents a substantial question on
appeal that, if decided in his favor, likely will lead to reversal.
For all of its discussion of the harmless error standard, the government
makes no effort actually to demonstrate that the four errors identified in Mr.
Blankenship‟s motion were harmless.1

Two of the errors (the constitutional

insufficiency of the indictment and the erroneous explanation of the reasonable
doubt standard) are not subject to harmless error review. The other two errors (the
erroneous willfulness instruction and the denial of cross-examination on new
matter elicited in the redirect of the government‟s most important witness) went to

1

The government‟s opposition (at 4-12) includes an incomplete, inaccurate
account of the evidence. Space constraints preclude a response here. It is enough
to observe that the government makes no effort to demonstrate the harmlessness of
the erroneous jury instructions and denial of cross-examination on the basis of the
trial record, other than reciting the predictable formula (at 19) that all errors are
harmless because the government‟s case was “overwhelming.” The jury, of course,
deadlocked twice and acquitted on all of the other charges, which involved
overlapping evidence.

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the heart of the only charge of which Mr. Blankenship was convicted. If this Court
concludes that any of the four rulings was erroneous, it is likely to reverse Mr.
Blankenship‟s conviction. While presentation of a single substantial question for
appeal mandates release, this appeal will present at least four such questions.
I.

THE SPECIAL WILLFULNESS INSTRUCTION GIVEN IN THIS
CASE WAS NOT APPROVED IN JONES AND IS CONTRARY TO
BRYAN.
The government (at 19-21) defends the first-of-its-kind willfulness

instruction that it proposed below as a correct interpretation of the Mine Act,
relying on United States v. Jones, 735 F.2d 785 (4th Cir. 1984). The novel
instruction (Tr. 5819) specially defining willfulness for “a person with supervisory
authority at or over a mine” in terms of “fail[ing] to take actions” and “reckless
disregard for whether the action or failure to act will cause” a violation was not,
however, given in Jones or in any other case, but was crafted by the government to
fit the prosecution theory in this case.
Jones involved a different offense with a lower mens rea – knowingly
authorizing, ordering, or carrying out a mine safety violation contrary to 30 U.S.C.
§ 820(c) – rather than willfully committing a safety violation contrary to 30 U.S.C.
§ 820(d), the object of the conspiracy alleged in this case. Jones‟ analysis of the
jury instruction asked whether the instruction “allowed the jury to convict the
defendants under a lesser standard of culpability than that set forth in section

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820(c), which contains the “knowingly” rather than the “willfully” standard
mistakenly alleged in the indictment in that case. 735 F.2d at 789. The Court
concluded: “the standard applied by the court, though couched in terms of willful
conduct, set a level of behavior at least as culpable as that required to convict for
knowing conduct in violation of the [Mine] Act.” Id. at 789 (emphasis added).
The “reckless disregard” instruction that was given in Jones concerned
reckless disregard of a known legal standard – the “closing of the eyes to or
deliberate indifference toward the requirements of a mandatory safety standard,
which standard the defendant should have known or had reason to know at the time
of violation.” 735 F.2d at 790 & 789 n.6.2 The different instruction challenged
here, in contrast, concerned acts or omissions undertaken with “reckless disregard
for whether that action or failure to act will cause a mandatory safety or health
standard to be violated.” Tr. 5818-19. In combination with the instruction that
willfulness for “a person with supervisory authority” includes failure “to take
actions that are necessary to comply with the mandatory mine safety or health
standard,” Tr. 5818, the novel reckless disregard instruction permitted the jury to
2

In this case, the Court also gave the quoted reckless disregard instruction
from Jones, which under Bryan was error. Even if Jones could be read as a
holding about willfulness in a section 820(d) prosecution, it has been displaced by
a “superseding contrary decision of the Supreme Court.” Busby v. Crown Supply,
Inc., 896 F.2d 833, 840-41 (4th Cir. 1990); see also McMellon v. United States,
387 F.3d 329, 333 (4th Cir. 2004) (en banc) (earliest panel opinion controls unless
overruled by the Supreme Court).
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find a willful violation if the defendant created a risk that violations would occur
without having any intention or having reached any agreement to commit a
violation.

The instruction was the foundation of the government‟s closing

argument that Mr. Blankenship could be convicted if he set budgets and production
targets that failed to prevent safety violations, even if he did not intend the
commission of a violation. Tr. 5843, 5953; see also Tr. 5425 (Rule 29 argument).
The government does not contend otherwise.
Jones does not suggest that setting general policies that fail to prevent
violations by others could be enough to show willfulness, and no such instruction
was given or approved in that case. The cited (at 22) discussion in Jones of the
sufficiency of proof of a willful violation by failing to prevent a violation
concerned more than a defendant‟s failure to order miners under his supervision to
stop moving an energized machine in his presence: “instead, he encouraged the
movement to continue at a more rapid rate.” 735 F.2d at 791. As to the other
violation there, the government‟s theory was that a defendant affirmatively
prevented miners from carrying out required inspections, not that he failed to
prevent them from performing inadequate inspections. Id.
Although the government suggests (at 23) that courts have only required
proof that the defendant knew his conduct was illegal “in narrow contexts,” that
reading is impossible to square with the language of Bryan itself. Bryan speaks in

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broad terms, stating that “[a]s a general matter, when used in the criminal context,
a „willful‟ act is one undertaken with a „bad purpose.‟ In other words, in order to
establish a „willful‟ violation of a statute, „the Government must prove that the
defendant acted with knowledge that his conduct was unlawful.‟” 524 U.S. at 192
(quoting Ratzlaf v. United States, 510 U.S. 135, 137 (1994)) (emphasis added).
Since Bryan, the Supreme Court has reiterated that “reckless disregard” is
insufficient to satisfy a “willfulness” requirement in criminal cases, though not in
civil cases. See Safeco Ins. Co. v. Burr, 551 U.S. 47, 60 (2007); see also United
States v. Bursey, 416 F.3d 301, 308-09 (4th Cir. 2005); Mot. for Release at 10.
The government never explains why Bryan is not applicable in a Mine Act
case and does not dispute that the challenged instruction is reversible error if Bryan
applies. Those two failures suggest a substantial issue for appeal. As for the
government‟s observation (at 24) that willfulness may have many meanings, those
meanings include statutes requiring standards of proof that are more demanding
than the general standard articulated Bryan. E.g., Cheek v. United States, 498 U.S.
192, 201 (1991). The government points to no authority approving the lesser
standard on which the District Court instructed the jury here.3

3

The cases the government cites (at 25) do not hold that a lesser willfulness
standard survives Bryan. There was no challenge to the jury instruction in United
States v. Mohr, 318 F.3d 613 (4th Cir. 2003), and no reason for the Court to
consider the question. In United States v. Dearing, 504 F.3d 897, 902 (9th Cir.
2007), which concerned a different instruction on intent to defraud, the trial court
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II.

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THE INDICTMENT’S INCLUSION OF ALLEGATIONS ABOUT
SAFETY VIOLATIONS, WITHOUT IDENTIFYING THE SAFETY
STANDARDS THE DEFENDANT AGREED TO VIOLATE AND
WITHOUT ALLEGING THE ELEMENTS OF THOSE STANDARDS,
IS INSUFFICIENT UNDER HOOKER AND KINGREA.
In opposition to a motion to dismiss, the government argued below that,

“[n]o listing of specific standards is required to allege this object [of the
conspiracy] and none would be required to prove it.” ECF 215 at 6. Completing
the about-face it began on the eve of trial (ECF 290 at 8, 9 & 11) and when it
submitted standards for the jury‟s use in deliberations (Tr. 5653; ECF 540-1), the
government now maintains that the conspiracy count was sufficient because a
background section in the indictment “identifies no fewer than six specific
mandatory mine safety or health standards that Defendant conspired to violate.”
Opp. 26. That is not correct.
The government refers to ¶¶12-36 of the indictment (ECF 169), which are
set forth in a background section and which generally describe categories of mine
safety standards or refer to the number of citations issued by MSHA. However,
those general descriptions, unlike the standards later submitted to the trial jury, do
not identify specific standards, nor do they allege the elements of a violation of any
gave a willfulness instruction that followed Bryan. United States v. Krimsky, 230
F.3d 855 (6th Cir. 2000), concerned a statute forbidding knowing false statements,
with no willfulness element. United States v. Manalapan Mining Co., 2012 WL
5198455, at *3 (E.D. Ky. Oct. 19, 2012), actually held that the defendant could
assert a good faith defense “by arguing it was ignorant of the law or interpreted the
law in a nonfrivolous manner that justified the decision(s) it made.”
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standard, and the government does not contend otherwise. Yet the regulatory
standards supply essential elements of an offense under section 820(d). Because
the indictment failed to allege specific standards and the elements of them, it failed
to allege the elements of an offense under section 820(d) and thus failed to allege a
conspiracy to commit an offense. United States v. Kingrea, 573 F.3d 186 (4th Cir.
2009); United States v. Hooker, 841 F.2d 1225 (4th Cir. 1988) (en banc); see
United States v. Pupo, 841 F.2d 1235, 1239 (4th Cir. 1988) (en banc) (reversal
required if indictment fails to allege elements of offense).
The problem is not just that the government did not provide citations to the
standards (Opp. 27 n.3). The indictment does not specify which of many standards
within a category Mr. Blankenship was alleged to have agreed to violate or the
requirements of any standard.

Take the indictment‟s general references to

ventilation standards in paragraphs 12 and 13. 30 C.F.R. Part 75, Subpart D
addresses ventilation. Subpart D regulations span from Section 75.300 to Section
75.389. Each regulation has different parts. The indictment‟s general references to
ventilation standards do not identify which part of which regulation Mr.
Blankenship agreed to violate, and do not allege the elements of any regulation.
Moreover, the “six specific” standards the government claims were set out in
the indictment do not correspond to the dozens of mine safety standards the
government provided given to the trial jury in its exhibit. An indictment functions

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to limit the government at trial to the offense presented to the grand jury. Russell
v. United States, 369 U.S. 749, 768 (1962). Some of the standards provided to the
trial jury did not even correspond to the evidence adduced at trial, such as two
standards applicable to surface coal mines (not underground mines like UBB).
ECF 540-1 at 2 (30 C.F.R. § 71.201(a) and (b)). Others were incomplete or
inapposite. ECF 540-1 at 7, 12-13 (30 C.F.R. § 75.334 and 30 C.F.R. § 75.202(b)).
III.

THE GOVERNMENT’S RELIANCE ON ABUSE OF DISCRETION
AND HARMLESS ERROR DOCTRINES AS TO THE DENIAL OF
CROSS-EXAMINATION OF CHRIS BLANCHARD ON MATTERS
THAT THE GOVERNMENT RESERVED FOR REDIRECT
EXAMINATION, AND ITS ANALYSIS OF WHAT QUALIFIES AS
“NEW MATTER” ELICTED ON REDIRECT EXAMATION,
DIRECTLY CONFLICT WITH UNITED STATES v. CAUDLE.
The government argues (at 28) that there is no substantial question here

because the District Court‟s ruling denying Mr. Blankenship an opportunity to
cross-examine Chris Blanchard after his redirect examination “is reviewed for
abuse of discretion.” But this Court expressly rejected that argument in United
States v. Caudle, 606 F.2d 451 (4th Cir. 1979). Caudle holds that, while trial
judges do have “broad discretion to control the scope and extent of crossexamination,” that discretion does not extend to allow the complete denial of crossexamination as to new matter elicited by the government on redirect examination
and that such denial is not subject to abuse of discretion review. Id. at 459. In
words directly relevant here, this Court wrote: “We do not believe the discretion

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of the trial court to limit the scope or extent of cross-examination came into play in
this case because the defendants never had the opportunity to cross-examine [the
witness] at all on the subject raised by the redirect examination.” Id. United States
v. Fleschner, 98 F.3d 155, 158 (4th Cir.1996), cited by the government (at 28), is
not at all to the contrary. The Court simply applied an abuse of discretion standard
after concluding that the redirect examination did not elicit new matter.
The government seeks to sidestep the substantial question here by also
arguing that any error is harmless because Mr. Blankenship could have put on a
defense case and could have called the witness then. The Supreme Court squarely
rejected that argument in Melendez-Diaz v. Massachusetts, 557 U.S. 305, 324-25
(2009), holding that the right to call a witness “is no substitute for the right of
confrontation.” Accord United States v. Charles, 722 F.3d 1319, 1330 n.14 (11th
Cir. 2013); United States v. Walker, 673 F.3d 649, 656 (7th Cir. 2012). The cases
cited by the government predate Melendez-Diaz.
On the merits, the government ignores the kind of testimony on redirect
examination that Caudle treats as “new matter” requiring some opportunity for the
defense to cross-examine. The government retreats (at 31 & 24) to a high level of
generality regarding the “subjects” of examination, such that all of the
government‟s questions on direct and redirect examination about a conspiratorial
understanding and about citations for regulatory violations could be said to have

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been about the same subjects. But Caudle is clear that new matter can concern a
subject covered by prior testimony. In that case, the government asked the witness
about a document during direct examination, and the defense cross-examined the
witness about that document. The government then on redirect drew out new
testimony about the document by going through it page by page, which it had
avoided doing on direct.

The Court observed that “[e]xamining counsel is

normally expected to elicit everything from a witness, so far as possible, at the first
opportunity,” Caudle, 606 F.2d at 458, and reversed because the much more
extensive testimony regarding the document was new matter requiring an
opportunity to cross-examine. Again, in words directly relevant here, this Court
wrote: “To deny recross examination on matter first drawn out on redirect is to
deny the defendant the right of any cross-examination as to that new matter.” The
prejudice of the denial cannot be doubted.” Id.
The existence of new matter is clearer here than it was in Caudle. The direct
testimony about a conspiratorial understanding contained no reference to prior
grand jury testimony or to Mr. Blankenship‟s statements. Questions about what
“the defendant told you” and about “conversations that you had with the
defendant,” Tr. 3322-23, had no parallel in the direct examination of Mr.
Blanchard. The same is true as to the 40 new exhibits used on redirect. See
Motion 27.

None of these exhibits had been mentioned previously.

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government used them, not only to respond to the implication that citations had
been issued for trivial violations and elicited management concern (see Opp. 3132), but also to ask whether Blanchard “disagreed” with the substance of the
citations, using them to establish the truth of the matter (violations) asserted in the
citations and to erroneously imply that Mr. Blankenship knew the contents.

In

light of Caudle, all of this amply satisfies the substantial question standard.
IV.

THE GOVERNMENT DOES NOT EVEN ARGUE THAT IT WAS
PROPER TO GIVE THE TWO-INFERENCE REASONABLE DOUBT
INSTRUCTION.
The government cannot bring itself to argue that the challenged reasonable

doubt instruction was actually proper. It follows that there is a substantial question
for appeal.
The government contends (at 37-38) that courts condemning the challenged
instruction have not reversed convictions.

The Second Circuit, however, did

reverse a conviction based on a similar instruction. United States v. Hughes, 389
F.2d 535, 537 (2d Cir. 1968). And other circuits have declined to reverse only
because there were compensating instructions solidly defining reasonable doubt.
United States v. Dowlin, 408 F.3d 647 (10th Cir. 2005); United States v. Inserra,
34 F.3d 83 (2d Cir. 1994); United States v. Khan, 821 F.2d 90 (2d Cir. 1987);

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United States v. Isaac, 134 F.3d 199 (3d Cir. 1998); United States v. Andujar, 49
F.3d 16 (1st Cir. 1995).4
The District Court here never gave compensating instructions that would
have clarified the standard and distinguished it from a preponderance standard,
such as by emphasizing the government‟s heavy burden and contrasting it with the
lesser burden in civil cases. Cf. United States v. Moss, 756 F.2d 329, 333-34 (4th
Cir. 1985) (“ameliorating instructions” saved erroneous reasonable doubt
explanation). Mr. Blankenship unsuccessfully requested such instructions. The
government does not address the District Court‟s refusal to give them. Instead it
has focused on the Court‟s instruction that the government must prove its case
beyond a reasonable doubt. That basic, unexplained instruction was given in all of
the cases that condemned the two-inference instruction. It never provided the basis
for affirming the convictions; rather, some other ameliorating instruction, never
given here, saved the conviction. There is good reason for that: Repeating the
words “reasonable doubt” multiple times after it has been explained in terms that
erroneously diminish the standard of proof does not cure the error.
4

The government‟s observation (at 19) that United States v. Khan, 821 F.2d
at 93, described the instruction as “obviously correct” is misleading. Khan
described the instruction as correct “as far as it goes.” Khan rejected the
instruction because it implies that preponderance of the evidence is the standard
and fails to tell the jury what to do when the “inference of guilt is stronger than the
inference of innocence but no[t] strong enough to be beyond a reasonable doubt.”
Id. (noting that challenged instruction was removed from Devitt & Blackmar).
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The government argues (at 37-40) that the challenged instruction had
nothing to do with reasonable doubt. But the government acknowledges (at 38)
that it “directly followed” the instruction to acquit if there were reasonable doubt.
See Tr. 5793-94.

Therefore, the challenged instruction is naturally read as

“indicating how the broad principle should apply.” Rosemond v. United States,
134 S. Ct. 1240, 1252 (2014).
Indeed, during the charge conference, after the defense objected to the
challenged instruction as “dilut[ing] the reasonable doubt standard,” Tr. 5672, the
government countered that it was “satisfied” with the instruction because it “serves
the purpose of providing another definition or another expression of what
reasonable doubt is.” Tr. 5674-75. “This is an expression, a correct expression of
the meaning of, or at least one of the meanings of the concept of reasonable
doubt.” Tr. 5675. The Court explained that the challenged instruction “tells the
jury that if there‟s reasonable doubt, they must acquit. And then it tells them if, as
you say, it‟s a tie, they must acquit.” Tr. 5673.
In view of all this, one might wonder why the government would argue (at
37) that the instruction “does not purport to define reasonable doubt.” First, only
then can it argue (at 39), that the District Court did not violate this Circuit‟s rule
against explaining the meaning of reasonable doubt. See United States v. Oriakhi,
57 F.3d 1290, 1300 (4th Cir. 1995) (stating rule). Second, only by denying that it

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is a reasonable doubt instruction can the government maintain (at 19) that the
instruction is subject to harmless error analysis rather than the rule that erroneous
definitions of reasonable doubt are structural error. Johnson v. United States, 520
U.S. 461, 469 (1997). For purposes of applying both the rule against explanation
of reasonable doubt and rules regarding structural error, the charge conference and
the charge itself require the conclusion that the challenged instruction was an
explanation (partial and flawed) of reasonable doubt.
The government‟s suggestion that there are different degrees of erroneous
reasonable doubt instructions, only the most egregious of which are considered
structural error warranting per se reversal, is unsupported and contrary to Sullivan
v. Louisiana, 508 U.S. 275, 281 (1993). “[T]he essential connection to a „beyond a
reasonable doubt‟ factual finding cannot be made where the instructional error
consists of a misdescription of the burden of proof, which vitiates all the jury's
findings.” Id. Moreover, it is doubtful that the instruction in Sullivan relating the
standard to “moral certainty” was more egregious than the instruction in this case
relating the standard to a preponderance of the evidence.
V.

CONCLUSION
The BOP has given Mr. Blankenship a May 12, 2016, reporting date. The

Court should order Mr. Blankenship‟s release pending resolution of the substantial
questions to be presented on appeal.

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Respectfully submitted,
/s/ William W. Taylor, III
William W. Taylor, III
Michael R. Smith
Eric R. Delinsky
ZUCKERMAN SPAEDER LLP
1800 M Street, NW
Washington, DC 20036
202-778-1800 (phone)
202-841-8106 (fax)
wtaylor@zuckerman.com
msmith@zuckerman.com
edelinsky@zuckerman.com
Counsel for Donald L. Blankenship

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CERTIFICATE OF SERVICE
I hereby certify that the foregoing has been electronically filed and service
has been made by virtue of such electronic filing this 27th day of April, 2016 on:
Steven R. Ruby
Gabriele Wohl
U.S. Attorney‟s Office
P.O. Box 1713
Charleston, WV 25326-1713
R. Gregory McVey
U.S. Attorney‟s Office
845 Fifth Avenue, Room 209
Huntington, WV 25701
/s/ Eric R. Delinsky
Eric R. Delinsky