Appeal: 16-4193 Doc: 56 Filed: 08/15/2016 Pg: 1 of 97 No. 16-4193 IN THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT ────────── UNITED STATES OF AMERICA, Appellee, v. DONALD L. BLANKENSHIP, Appellant. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA ─────────── BRIEF OF APPELLEE THE UNITED STATES OF AMERICA ─────────── CAROL A. CASTO United States Attorney STEVEN R. RUBY R. GREGORY MCVEY GABRIELE WOHL Assistant United States Attorneys Post Office Box 1713 Charleston, West Virginia 25326 (304) 345-2200 COUNSEL FOR APPELLEE Appeal: 16-4193 Doc: 56 Filed: 08/15/2016 Pg: 2 of 97 TABLE OF CONTENTS TABLE OF AUTHORITIES ...........................................................................iv STATEMENT OF JURISDICTION .................................................................1 ISSUES PRESENTED FOR REVIEW ..............................................................1 STATEMENT OF THE CASE ..........................................................................2 I. Factual Background ............................................................................2 II. Procedural History ............................................................................11 III. Corrections and supplements to Defendant’s statement of the case..........................................................................................13 SUMMARY OF ARGUMENT ........................................................................19 ARGUMENT I. The trial court’s instruction on willfulness under the Mine Act was correct. ............ ................................................................................22 A. Defendant’s core premise is wrong: Reckless disregard for the law has never been barred from the definition of criminal willfulness. .........................................................................24 1. Reckless disregard for the law is a longstanding component of many definitions of criminal willfulness up to the present day. ..................................................................24 2. The cases that Defendant cites did not affect the use of reckless disregard for the law in criminal willfulness definitions. .................................................................31 a. Bryan did not affect the use of reckless disregard for the law in criminal willfulness definitions. ......................32 i Appeal: 16-4193 Doc: 56 Filed: 08/15/2016 Pg: 3 of 97 b. Safeco did not affect the use of reckless disregard for the law in criminal willfulness definitions. ......................37 B. The trial court properly followed this Court’s leading precedent on willfulness under the Mine Act. .................................39 C. Even if the Court were to deem the instruction error, any error would be harmless. ..................................................................46 1. Legal standards regarding harmless error....................................46 2. Any error with regard to the trial court’s willfulness instruction was harmless. ............................................................47 II. Count One of the indictment was sufficient, and any error was harmless. ................................................................................50 A. Count One of the indictment was sufficient. ..................................50 B. Even if the challenged aspect of Count One had been error, it would be harmless. ........................................................................59 III. The trial court did not abuse its discretion in finding that the redirect examination of witness Blanchard raised no subjects not previously covered, and even if the Court were to find error, it would be harmless. ..............................................61 A. The trial court did not abuse its discretion in ruling that the redirect examination of Blanchard raised no new subjects. ............ ................................................................................63 1. Recross-examination is required only when redirect examination raises a new subject not raised in direct or cross-examination. ........................................................................63 2. The redirect examination of Blanchard did not raise subjects not previously raised in direct or cross-examination. ........................................................................64 ii Appeal: 16-4193 Doc: 56 Filed: 08/15/2016 Pg: 4 of 97 3. The trial court did not abuse its discretion in finding that the redirect examination of Blanchard raised no new subjects. ........ ................................................................................68 B. Even if the district court were deemed to have erred, any error was harmless..............................................................................72 IV. The trial court’s “conclusion of innocence” instruction did not purport to define “reasonable doubt” and did not lead to an erroneous jury charge. ......................................................................77 A. The “conclusion of innocence” instruction did not purport to define reasonable doubt. ..................................................................78 B. Defendant cites no precedent where the “conclusion of innocence” instruction was held to be reversible error, and appellate panels in at least two circuits have approved of it. .................. ................................................................................79 C. The jury charge here, viewed as a whole, correctly instructed the jury on the standard of proof required for conviction. .............82 CONCLUSION ...............................................................................................85 CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE iii Appeal: 16-4193 Doc: 56 Filed: 08/15/2016 Pg: 5 of 97 TABLE OF AUTHORITIES CASES Agostini v. Felton, 521 U.S. 203 (1997) ......................................................... 25, 34, 38 Brecht v. Abrahamson, 507 U.S. 619 (1993) .............................................................. 47 Bryan v. United States, 524 U.S. 184 (1998) ........................................................ passim Cheek v. United States, 498 U.S. 192 (1991) ............................................................. 32 Citron v. Citron, 722 F.2d 14, 15-16 (2d Cir. 1983) ................................................. 28 Coy v. Iowa, 487 U.S. 1012 (1988) ........................................................................... 72 Elbel v. United States, 364 F.2d 127 (1966) ................................................................. 6 Evans v. Chavis, 546 U.S. 189 (2006) ....................................................................... 34 Farroni v. Farroni, 862 F.2d 109, 112 (6th Cir. 1988) .............................................. 28 Kotteakos v. United States, 328 U.S. 750 (1946) ........................................................ 47 Malouche v. J.H. Mgmt. Co., 839 F.2d 1024, 1025-26 (4th Cir. 1988) ...................... 28 Neder v. United States, 527 U.S. 1 (1999) .................................................................... 7 Ratzlaf v. United States, 510 U.S. 135 (1994) ................................................ 24, 33, 35 Rose v. Clark, 478 U.S. 570 (1986) ........................................................................... 47 Safeco Ins. Co. of Am. v. Burr, 551 U.S. 47 (2007) ............................................... passim Screws v. United States, 325 U.S. 91 (1945) ......................................................... 26, 37 Spies v. United States, 317 U.S. 492 (1943) ............................................................... 33 Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379 (2008) ................................... 68 Tuggle v. Netherland, 79 F.3d 1386 (4th Cir. 1996) .................................................. 47 Turner v. United States, 441 F.2d 736 (5th Cir. 1971) .............................................. 70 United States v. Aracoma Coal Co., No. 2:08-cr-00286 (S.D. W. Va. May 11, 2010) ..................................................................... 16, 53 United States v. Barahona, 606 F. App’x 51 (4th Cir. 2015) ..................................... 76 United States v. Basham, 561 F.3d 302 (4th Cir. 2009) ............................................. 68 United States v. Beckton, 740 F.3d 303 (4th Cir. 2014) ............................................. 68 United States v. Bradley, 196 F.3d 762 (7th Cir. 1999) ............................................. 29 iv Appeal: 16-4193 Doc: 56 Filed: 08/15/2016 Pg: 6 of 97 United States v. Buchanan, 787 F.2d 477 (10th Cir. 1986) ....................................... 52 United States v. Burstyn, 878 F.2d 1322 (11th Cir. 1989) ......................................... 27 United States v. Cacchillo, 416 F.2d 231 (2d Cir. 1969) ...................................... 80, 81 United States v. Caudle, 606 F.2d 451 (4th Cir. 1979) .............................................. 71 United States v. Chase, 372 F.2d 453 (4th Cir. 1967) ............................................... 69 United States v. Consolidation Coal Co., 504 F.2d 1330 (6th Cir. 1974) ........ 27, 40, 46 United States v. Creech, 408 F.3d 264 (5th Cir. 2005) .............................................. 81 United States v. Dise, 763 F.2d 586 (3d Cir. 1985) ................................................... 26 United States v. Dowlin, 408 F.3d 647 (10th Cir. 2005) ....................................... 81-82 United States v. Downing, 297 F.3d 52 (2d Cir. 2002) ............................................... 51 United States v. Edwards, 188 F.3d 230 (4th Cir. 1999) ............................................ 69 United States v. Ellis, No. 2:10-cr-00102 (S.D. W. Va. July 20, 2010) ....................... 16 United States v. Feola, 420 U.S. 671 (1975) ............................................................... 52 United States v. Ferguson, 752 F.3d 613 (4th Cir. 2014) ............................................ 47 United States v. Fernandez, 913 F.2d 148 (4th Cir. 1990) ......................................... 68 United States v. Feyisetan, No. 10-CR-00596, 2012 WL 12334381 (D. Md. Feb. 27, 2012) .................................................................................. 79 United States v. Figueroa, 729 F.3d 267 (3d Cir. 2013) .................................. 30-31, 39 United States v. Fleschner, 98 F.3d 155 (4th Cir. 1996) ....................................... passim United States v. France, 164 F.3d 203 (4th Cir. 1998) ............................................... 69 United States v. Fuentes, 57 F.3d 1061, 1995 WL 352808 (1st Cir. 1995) ......... 81, 84 United States v. Gabinskaya, ___ F.3d ___ , 15-776-CR, 2016 WL 3736414 (2d Cir. July 12, 2016) ................................................................................... 68 United States v. Gibson, 187 F.3d 631, 1999 WL 543220, (4th Cir. July 27, 1999) .. 76 United States v. Grant, 715 F.3d 552 (4th Cir. 2013) ............................................... 72 United States v. Greer, 527 F. App’x 225 (3d Cir. 2013) ........................................... 82 United States v. Hagy, No. 2:10-cr-00101 (S.D. W. Va. July 20, 2010) ..................... 16 United States v. Harrah, No. 5:11-cr-00082 (S.D. W. Va. Sept. 22, 2011) ................ 17 United States v. Hassan, 742 F.3d 104 (4th Cir. 2014) ............................................. 83 United States v. Higgs, 353 F.3d 281 (4th Cir. 2003) ................................................ 59 v Appeal: 16-4193 Doc: 56 Filed: 08/15/2016 Pg: 7 of 97 United States v. Hill, 420 F. App’x 407 (5th Cir. 2011) ...................................... 31, 39 United States v. Hooker, 841 F.2d 1225 (4th Cir. 1988) ...................................... 54, 58 United States v. House, 684 F.3d 1173 (11th Cir. 2012) ..................................... 31, 39 United States v. Hughart, No. 5:12-cr-00220 (S.D. W. Va. Sept. 11, 2013) .............. 18 United States v. Hughes, 389 F.2d 535 (2d Cir. 1968) ......................................... 80, 81 United States v. Hyde, 574 F.2d 856 (5th Cir. 1978) ................................................. 69 United States v. Ill. Cent. R.R., 303 U.S. 239 (1938) ................................................... 35 United States v. Inciso, 292 F.2d 374 (7th Cir. 1961) ................................................ 26 United States v. Inserra, 34 F.3d 83 (2d Cir. 1994) .................................................... 82 United States v. Isaac, 134 F.3d 199 (3d Cir. 1998) .................................................. 82 United States v. Jacobs, 44 F.3d 1219 (3d Cir. 1995) ................................................. 82 United States v. Jones, 735 F.2d 785 (4th Cir. 1984) ........................................... passim United States v. Kaye, 556 F.2d 855 (7th Cir. 1977) ................................................. 26 United States v. Khan, 821 F.2d 90 (2d Cir. 1987) .............................................. 80, 82 United States v. Kingrea, 573 F.3d 186 (4th Cir. 2009) ............................................. 45 United States v. Koon, 34 F.3d 1416 (9th Cir. 1994)............................................ 28, 29 United States v. Krimsky, 230 F.3d 855 (6th Cir. 2000) ............................................ 30 United States v. London, 66 F.3d 1227 (1st Cir. 1995) ........................................ passim United States v. Lovern, 293 F.3d 695 (4th Cir. 2002) ......................................... 47-48 United States v. Madden, 38 F.3d 747 (4th Cir. 1994) .............................................. 46 United States v. Manalapan Mining Co., No. Crim. 12-05-GFVT, 2012 WL 5198455 (E.D. Ky. Oct. 19, 2012) .................................... 16, 45, 46 United States v. May, No. 5:12-cr-00050 (S.D. W. Va. Jan. 18, 2013) ...................... 17 United States v. Mayberry, No. 5:05-CR-299-FL, 2006 WL 6457613 (E.D.N.C. June 8, 2006) ................................................................................ 79 United States v. Meredith, 824 F.2d 1418 (4th Cir. 1987) ......................................... 54 United States v. Mohr, 318 F.3d 613 (4th Cir. 2003) ................................................ 30 United States v. Mojica-Baez, 229 F.3d 292 (1st Cir. 2000) .................................. 59-60 United States v. Muldoon, No. 89-CR-00326, 1989 WL 1641193 vi Appeal: 16-4193 Doc: 56 Filed: 08/15/2016 Pg: 8 of 97 (E.D. Va. Dec. 29, 1989) ................................................................................ 79 United States v. Pena, 527 F.2d 1356 (5th Cir. 1976) ............................................... 82 United States v. Pina, 974 F.2d 1241 (10th Cir. 1992) .............................................. 63 United States v. Plumley, No. 2:10-cr-00103 (S.D. W. Va. July 20, 2010) ................. 16 United States v. Pomrenke, No. 1:15-CR-00033, 2016 WL 758804 (W.D. Va. Feb. 22, 2016) .......................................................................... 78-79 United States v. Praetorius, 622 F.2d 1054 (2d Cir. 1979) ................................... 80, 81 United States v. Rapone, 131 F.3d 188 (D.C. Cir. 1997) ........................................... 29 United States v. Reese, 2 F.3d 870, 881-82 (9th Cir. 1993) ........................................ 27 United States v. Roberts, 881 F.2d 95 (4th Cir. 1989) ................................................ 51 United States v. Shadd, No. 2:10-cr-00104 (S.D. W. Va. July 20, 2010) .................... 17 United States v. Stover, No. 5:11-cr-00038 (S.D. W. Va. Mar. 1, 2012) ..................... 17 United States v. Tarallo, 380 F.3d 1174 (9th Cir. 2004) ................................ 30, 36, 37 United States v. Thompson, 579 F. App’x 552 (9th Cir. 2014) ............................. 31, 39 United States v. Thompson, No. 6:02-102-HMH, 2007 WL 2815586 (D.S.C. Sept. 25, 2007) .................................................................................. 79 United States v. Trudeau, 812 F.3d 578 (7th Cir. 2016) ................................ 30, 38, 39 United States v. Vidacak, 553 F.3d 344 (4th Cir. 2009) ............................................ 70 United States v. White Buck Coal Co., No. 2:06-cr-00114 (S.D. W. Va. Dec. 6, 2007) ............................................................................ 17 United States v. Young, 248 F.3d 260 (4th Cir. 2001) ............................................... 69 Williamson v. United States, 310 F.2d 192 (9th Cir. 1962) ........................................ 60 STATUTES Title 18, United States Code, Section 242 (2012) ....................................... 26, 29, 30 Title 18, United States Code, Section 371 (2012) ............................................. passim Title 18, United States Code, Section 401 (2012) .................................................. 29 Title 18, United States Code, Section 656 (2012) .................................................. 30 Title 26, United States Code, Section 7212(a) (2012) ............................................ 48 Title 29, United States Code, Section 186(d) (2012) ............................................. 26 vii Appeal: 16-4193 Doc: 56 Filed: 08/15/2016 Pg: 9 of 97 Title 30, United States Code, Section 820(d) (2012) .............................. 1, 13, 51, 53 OTHER Title 30, Code of Federal Regulations, Section 71.201 (2013) ............................... 53 Title 30, Code of Federal Regulations, Section 75.321 (2013) ................................ 8 Title 30, Code of Federal Regulations, Section 75.325 (2013) .............................. 51 Title 30, Code of Federal Regulations, Section 75.360 (2013) .............................. 53 Title 30, Code of Federal Regulations, Section 75.370 (2013) .............................. 51 Title 30, Code of Federal Regulations, Section 75.400 (2013) ................................ 8 Title 30, Code of Federal Regulations, Section 75.402 (2013) .......................... 8, 13 Federal Rule of Criminal Procedure 7(c) ................................................................. 52 viii Appeal: 16-4193 Doc: 56 Filed: 08/15/2016 Pg: 10 of 97 STATEMENT OF JURISDICTION The United States agrees with Defendant’s statement of jurisdiction. ISSUES PRESENTED FOR REVIEW I. Willfulness instruction. Should this Court hold that reckless disregard for the law can never be part of the definition of willfulness in a criminal prosecution, thereby overruling its own precedents and contradicting those of the Supreme Court and every other court of appeals? II. Sufficiency of the indictment. Count One of the superseding indictment expressly alleged all the elements both of the offense of conspiracy, 18 U.S.C. § 371, and the underlying substantive offense of criminal mine safety violations, 30 U.S.C. § 820(d). It also detailed the charged conspiracy at length, with allegations that included specific safety standards that were violated as part of the conspiracy and overt acts in furtherance of the conspiracy that Defendant-Appellant (hereinafter “Defendant”) himself committed. Was Count One sufficient? III. Recross-examination. Did the trial court abuse its discretion in ruling that the redirect examination of witness Christopher Blanchard raised no new subjects not already addressed in his direct and cross-examination? Appeal: 16-4193 IV. Doc: 56 Filed: 08/15/2016 Pg: 11 of 97 “Conclusion of innocence” instruction. The trial court gave a jury instruction often used before in this circuit regarding a scenario in which the jury should adopt the “conclusion of innocence.” Many appeals courts have considered this instruction, with some endorsing it and some not, but none has reversed a conviction because of it. The trial court also instructed the jury at least 38 times on the reasonable doubt standard required to convict. In these circumstances, should this Court become the first ever to reverse a conviction because of the “conclusion of innocence” instruction? STATEMENT OF THE CASE Defendant’s appeal presents the same four arguments that he made in his motion for release pending appeal, in which he sought to delay his sentence of imprisonment. Doc. 9-1.1 The standard for evaluating that motion was whether it presented a substantial question likely to result in reversal. Id. at 5. After lengthy briefing, this Court denied that motion. Doc. 25. Defendant’s appeal brief presents nothing that would prompt a different outcome now. I. Factual background. On April 5, 2010, a massive explosion at Massey Energy Company’s (“Massey”) Upper Big Branch mine (“UBB”), located in Montcoal, West Virginia, 1 References to “Doc. ___” refer to items filed in this Court’s electronic docket in this appeal. 2 Appeal: 16-4193 Doc: 56 Filed: 08/15/2016 Pg: 12 of 97 killed 29 coal miners. J.A. 1964-77.2 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 Inspector General, and a criminal investigation began. J.A. 1470. Defendant was the chief executive officer of Massey and the chairman of its board of directors at the time of the explosion. J.A. 471, 1288. 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. J.A. 230-31. 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. J.A. 1904; J.A. 477-78. He personally had to approve any spending on outside contractors. J.A. 1921; J.A. 486-88. He personally had to approve any pay raise, even for a small group of employees at a single mining operation. J.A. 1920; J.A. 468-69. And he personally had to approve any purchase of mining equipment or other expenditure of capital. J.A. 478-79. At UBB, Defendant required that he personally receive a report every 30 2 Citations herein to “J.A. ___” refer to the Joint Appendix submitted with Defendant’s opening brief. Citations to “S.J.A. ___” refer to the Supplemental Joint Appendix submitted with this brief. 3 Appeal: 16-4193 Doc: 56 Filed: 08/15/2016 Pg: 13 of 97 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 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?” J.A. 1918. During much of the time period covered by the superseding indictment, Defendant spoke at least daily, and often more frequently than that, with the division president in charge of UBB. J.A. 481. In addition to these telephone conversations, Defendant regularly sent the division president handwritten messages on coal production at UBB. J.A. 480. 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). J.A. 1923, 1919. 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 4 Appeal: 16-4193 Doc: 56 Filed: 08/15/2016 Pg: 14 of 97 demanded to personally review the job description of each such worker in order to make cuts. J.A. 1930. 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. J.A. 493-96; 1928. 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 superseding 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. J.A. 499, 505-07. 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. J.A. 358. They were part of a package of materials that had to be sent to him even when he was out of the office. J.A. 358-59. 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, 5 Appeal: 16-4193 Doc: 56 Filed: 08/15/2016 Pg: 15 of 97 and that Defendant shared in an understanding that it was cheaper to break the safety laws than to follow them. J.A. 473-76. 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 non-production time to bring the mine into legal compliance. J.A. 471-72. He testified that Defendant had the power both to provide adequate staffing and to allocate sufficient worker time to safetyrelated tasks, but that in fact he did neither. J.A. 472-73. 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. J.A. 1199-1201. 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. J.A. 1905-13. 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.” J.A. 1907. The company did not staff its mines adequately to fulfill safety mandates, Ross explained. J.A. 1907, 1913. 6 Appeal: 16-4193 Doc: 56 Filed: 08/15/2016 Pg: 16 of 97 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 compliance with safety laws. J.A. 1289-90. Defendant responded by indicating to Ross that the increased staffing would cost more than Defendant wanted to spend. J.A. 1290-91. (This notwithstanding that in 2009, the Massey division that included UBB generated revenue of nearly $332 million. S.J.A. 56.) Ross answered that the one thing the company could not afford was to have a mine disaster. J.A. 1292. 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. J.A. 509-14, 515-16; J.A. 1934-37. Defendant’s response to Ross’ warnings, in a telephone conversation that Defendant himself secretly recorded, was to complain that they were “worse than” articles in the Charleston Gazette, a state newspaper that frequently scrutinized Massey’s safety record, and that the memorandum would be “a terrible document to be in discovery.” S.J.A. 1, 37. Miners who worked at UBB testified to the working conditions caused by the understanding that Defendant promoted. Miners were required to work in areas 7 Appeal: 16-4193 Doc: 56 Filed: 08/15/2016 Pg: 17 of 97 that were inadequately ventilated, an illegal practice that can cause explosions. J.A. 321, 323, 380-81, 432; 30 C.F.R. § 75.321. Illegal accumulations of coal dust, which is explosive when suspended in air, pervaded the mine. J.A. 427-28; 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. J.A. 369; 30 C.F.R. § 75.402. Understaffing and pressure to produce coal even in illegal conditions produced rampant violations. J.A. 418, 425-26; J.A. 448-49. Low-level supervisors who slowed coal production to follow safety laws were threatened with firing. J.A. 410-11. Miners understood that they were expected to violate safety laws in order to make more money, or else. J.A. 379. 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.” J.A. 1902. A witness who served as UBB’s mine superintendent during part of the 8 Appeal: 16-4193 Doc: 56 Filed: 08/15/2016 Pg: 18 of 97 indictment period testified that he understood the memorandum to represent Defendant’s desired approach to running Massey’s mines. J.A. 424. Even as Defendant saw safety violations escalate at UBB, he continued to pressure the mine to produce more coal with fewer miners. J.A. 1152, 1154-56. He expressly directed UBB’s 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.” J.A. 1924. He ordered UBB’s 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. J.A. 484-85. In 2009, a year when UBB had among the highest levels of safety violations of any mine at Massey, Defendant made its president one of the highest paid presidents in the company, with compensation exceeding $400,000. J.A. 482-83. 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 at Massey, and many of these recordings were obtained by the United States and 9 Appeal: 16-4193 Doc: 56 Filed: 08/15/2016 Pg: 19 of 97 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.” S.J.A. 4-5. 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.” S.J.A. 45-46. 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., J.A. 327 (testimony of former UBB miner Bobbie Pauley); J.A. 328 (same); J.A. 370 (testimony of former UBB miner Thomas Gary Young); J.A.373 (testimony of former UBB miner Michael Smith); J.A. 374-75 (same); J.A. 382-83 (testimony of former UBB miner Brent Racer); J.A. 391-92 (testimony of former UBB miner Clifton Stover); J.A. 419-20 (testimony of former UBB miner Richard Hutchens); J.A. 441 (testimony of former UBB miner Larry Adams); J.A. 446 (testimony of former UBB miner Michael Ellison); J.A. 450 (testimony of former UBB miner Stanley Stewart). 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. J.A. 346-47. Its 59 unwarrantable failure orders during that time far exceeded many 10 Appeal: 16-4193 Doc: 56 Filed: 08/15/2016 Pg: 20 of 97 mines that produced substantially more coal than UBB. J.A. 1871. II. Procedural history. 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 (“MSHA”), 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. The superseding indictment was the operative indictment at trial and in connection with the sufficiency challenge that Defendant raises in this appeal; for economy’s sake, the remainder of this brief will refer to the superseding indictment simply as the “indictment,” unless otherwise indicated. Prior to trial, Defendant filed approximately 37 pretrial motions, including a variety of motions to dismiss the indictment and superseding indictment. The district court entered detailed written orders ruling on those motions, denying all 11 Appeal: 16-4193 Doc: 56 Filed: 08/15/2016 Pg: 21 of 97 the motions to dismiss. On October 1, 2014, 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. ECF No. 322 (order summoning jurors), Dist. Ct. ECF No. 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. On October 6, 2015, after four days of jury selection and the consideration of 183 prospective jurors, 12 jurors and three alternates were seated. 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. J.A. 1-61. 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. J.A. 230-31. The jury did not indicate a finding of guilt on the second object of the charged conspiracy, defrauding the United States by impeding MSHA. J.A. 230-31. 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 12 Appeal: 16-4193 Doc: 56 Filed: 08/15/2016 Pg: 22 of 97 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. J.A. 298-304. On April 7, 2016, Defendant timely noted this appeal. On April 12, 2016, Defendant moved to be released on bond while the appeal was pending, filing more than 30 pages of briefing in support of his submission. Doc. 9-1. The motion presented four arguments Defendant intended to make on appeal, contending they raised substantial questions likely to result in reversal. On April 25, 2016, the United States responded, also with a comprehensive brief, explaining why none of Defendant’s contentions raised a substantial question likely to result in reversal. Doc. 18. On April 25, 2016, Defendant submitted approximately 15 pages of additional briefing. Doc. 20. On May 12, 2016, this Court denied Defendant’s motion to avoid prison pending appeal. Doc. 25. On June 27, 2016, Defendant submitted his principal brief, which pursued the same four arguments the Court previously considered in his motion for release. Doc. 31. III. Corrections and supplements to Defendant’s statement of the case. The United States will not respond to every inaccurate or incomplete claim in Defendant’s statement of the factual and procedural background of the appeal, but some require discussion. First, and perhaps most glaringly, Defendant says the 13 Appeal: 16-4193 Doc: 56 Filed: 08/15/2016 Pg: 23 of 97 indictment contained no allegation that he and his co-conspirators believed they were violating the law. That claim is strikingly false, so much so that one wonders what could have prompted Defendant to assert it. In truth, the indictment contained allegations including these: • “Despite having the ready ability to drastically reduce violations of mandatory federal mine safety standards at UBB, and even though he knew that UBB’s practice of routinely violating such standards was unlawful, BLANKENSHIP purposely elected to continue that practice throughout the Indictment Period.” J.A. 127 (Superseding Indictment ¶ 58) (emphases added). • “During the Indictment Period, BLANKENSHIP instructed and encouraged UBB managers to violate mandatory mine safety standards.” J.A. 127 (Superseding Indictment ¶ 59). • “During the Indictment Period, BLANKENSHIP, together with Massey officials carrying out BLANKENSHIP’s instructions and policies . . . , imposed coal-production requirements on UBB that they knew would, in combination with the inadequate staffing and other resources provided to UBB, cause routine, preventable violations 14 Appeal: 16-4193 Doc: 56 Filed: 08/15/2016 Pg: 24 of 97 of federal mine safety and health standards to continue at UBB.” J.A. 131 (Superseding Indictment ¶ 68) (emphases added). • “BLANKENSHIP further knew that [the] reduction in the number of UBB coal miners who were focused on these and other safety-law compliance tasks, as distinct from direct production of coal, would cause continued routine violations of mandatory federal mine safety standards at UBB.” J.A. 132 (Superseding Indictment ¶ 71) (emphases added). • “It was a part of the conspiracy that BLANKENSHIP, together with others known and unknown to the Grand Jury, would and did instruct and counsel their subordinates to commit violations of mandatory federal mine safety and health standards, and to take actions that they knew would and did cause violations of those standards, and to engage in omissions to act that they knew would and did cause violations of those standards.” J.A. 135 (Superseding Indictment ¶ 91) (emphases added). Defendant also contends that his prosecution was based on a “novel” legal theory, a claim he previously made to no avail in his pretrial motions. The only thing novel about the charge against Defendant is that, in this case, it was pursued 15 Appeal: 16-4193 Doc: 56 Filed: 08/15/2016 Pg: 25 of 97 against the CEO of a major mining company instead of against low-ranking miners. The Mine Act’s criminal provisions have been invoked repeatedly to convict lawbreaking mine officials and mining companies, including at least two convictions of Massey subsidiaries while Defendant was CEO. See, e.g., United States v. Jones, 735 F.2d 785 (4th Cir. 1984) (affirming convictions of mine superintendent and nightshift supervisor for willful violations of mine safety standards); United States v. Manalapan Mining Co., No. Crim. 12-05-GFVT, 2012 WL 5198455 (E.D. Ky. Oct. 19, 2012) (noting charges against mining company as well as mine’s operations manager and superintendent for criminal violations of mine safety standards); United States v. Aracoma Coal Co., No. 2:08-cr-00286 (S.D. W. Va. May 11, 2010) (ECF 25) (Judgment in a Criminal Case) (noting conviction of Massey subsidiary for willful mine safety violation resulting in death); United States v. Hagy, No. 2:10-cr-00101 (S.D. W. Va. July 20, 2010) (ECF 5) (signed plea agreement) (agreement by Aracoma Coal Co. foreman to plead guilty to violation of mandatory mine safety standard); United States v. Ellis, No. 2:10-cr-00102 (S.D. W. Va. July 20, 2010) (ECF 5) (signed plea agreement) (agreement by Aracoma Coal Co. foreman to plead guilty to violation of mandatory mine safety standard); United States v. Plumley, No. 2:10-cr00103 (S.D. W. Va. July 20, 2010) (ECF 6) (signed plea agreement) (agreement by Aracoma Coal Co. foreman to plead guilty to violation of mandatory mine safety 16 Appeal: 16-4193 Doc: 56 Filed: 08/15/2016 Pg: 26 of 97 standard); United States v. Shadd, No. 2:10-cr-00104 (S.D. W. Va. July 20, 2010) (ECF 5) (signed plea agreement) (agreement by Aracoma Coal Co. foreman to plead guilty to violation of mandatory mine safety standard); United States v. White Buck Coal Co., No. 2:06-cr-00114 (S.D. W. Va. Dec. 6, 2007) (ECF 151) (Judgment in a Criminal Case) (noting conviction of Massey subsidiary for willful mine safety violation). Defendant may believe himself to be more important than those past defendants, and perhaps thought that his position insulated him from legal scrutiny, but there is nothing new about the legal authorities that were brought to bear in his prosecution. Defendant notes that he was charged several years after the beginning of the federal investigation of possible law-breaking at UBB, but neglects to say that this investigation proceeded like many others, securing convictions at steadily ascending levels of Massey’s corporate hierarchy before Defendant was charged. See United States v. Harrah, No. 5:11-cr-00082 (S.D. W. Va. Sept. 22, 2011) (ECF 26) (Judgment in a Criminal Case) (noting conviction of former UBB section foreman for false statements, along with 10-month prison sentence); United States v. Stover, No. 5:11-cr00038 (S.D. W. Va. Mar. 1, 2012) (ECF 188) (Judgment in a Criminal Case) (noting conviction of former UBB security chief for obstruction of justice and a false statement, along with 36-month prison sentence); United States v. May, No. 5:12-cr00050 (S.D. W. Va. Jan. 18, 2013) (ECF 40) (Judgment in a Criminal Case) (noting 17 Appeal: 16-4193 Doc: 56 Filed: 08/15/2016 Pg: 27 of 97 conviction of former UBB mine superintendent for conspiracy to impede MSHA, along with 21-month prison sentence); United States v. Hughart, No. 5:12-cr-00220 (S.D. W. Va. Sept. 11, 2013) (ECF 35) (Judgment in a Criminal Case) (noting conviction of former Massey division president for conspiracy to impede MSHA and conspiracy to violate mandatory mine safety and health standards, along with 42month prison sentence). Additionally, Defendant uses his statement of the case to complain about rulings of the district court that he has chosen not to appeal. He claims that the district in which the case was tried was “saturated with prejudice against” Defendant. Def.’s Br. 4. But he fails to note that he twice moved for a change of venue and now has chosen not to appeal the trial court’s denials of those motions. See Dist. Ct. ECF 551 (order denying final change of venue motion). Defendant also complains that the trial court admitted into evidence citations issued for safety violations at UBB. Def.’s Br. 9. Again, he fails to mention that he has chosen not to appeal the trial court’s ruling to admit that evidence. If Defendant believed that either of these complaints had merit sufficient for appeal, he presumably would have brought them before this Court. Finally, Defendant suggests that because 29 coal miners were killed at UBB, he must have been convicted because of the emotion and public outcry that the 18 Appeal: 16-4193 Doc: 56 Filed: 08/15/2016 Pg: 28 of 97 UBB explosion aroused, not because of his own rampant law-breaking. Def.’s Br. 35. Defendant raised this theory in a pretrial motion that the trial court rejected and whose denial, again, he does not appeal. Dist. Ct. ECF 217. That motion detailed his intricate fantasies that he was prosecuted because of an internet video he released touting his theory of the UBB explosion, or because of a vaguely described political conspiracy to frame him for the explosion. Id. The trial court found not a shred of evidence to support any of it. Defendant may be correct that not every mine where workers die is the scene of law-breaking, but the evidence showed that this one was, and that he was behind it—and a jury of his peers fairly convicted him of his crime. SUMMARY OF ARGUMENT As in his motion for release pending appeal, Defendant offers four contentions. First, he maintains that Supreme Court precedents from 1998 and 2007 eliminated reckless disregard for the law from the definition of willfulness in criminal cases, and that the trial court thus erred by instructing the jury on reckless disregard. But an overwhelming body of law shows that reckless disregard remains alive and well as a component of criminal willfulness. This is not surprising, because Defendant’s cited cases do not say what he claims. The first one does not even mention the phrase “reckless disregard”; it involved an entirely different issue. Bryan v. United States, 524 U.S. 184 (1998). And the second was not a criminal case at all. Rather, it was a civil appeal in which the Supreme Court not only did not rule on 19 Appeal: 16-4193 Doc: 56 Filed: 08/15/2016 Pg: 29 of 97 the definition of willfulness for criminal purposes but expressly said it was “beside the point.” Safeco Ins. Co. v. Burr, 551 U.S. 47, 60 (2007). Both decisions reiterated that “willful” is a term of many meanings whose definition depends on the context in which it is used—quite contrary to Defendant’s claim that they established a uniform definition of willfulness for all criminal cases. This Court and other courts of appeals continue to use reckless disregard as part of the definition of willfulness in appropriate cases after Bryan and Safeco. The district court thus correctly followed this Court’s leading precedent on willfulness under the Mine Act, which approved the inclusion of reckless disregard in a willfulness instruction. United States v. Jones, 735 F.2d 785 (4th Cir. 1984). Second, Defendant contends that Count One of the indictment was insufficient, claiming that it failed to allege an element of his offense. Even a cursory review of Count One, however, demonstrates that it alleged all the elements of both a criminal conspiracy and the underlying substantive offense. Defendant maintains that the indictment was required to allege a specific list of mine safety standards that he and his co-conspirators agreed to violate. But in reality, the conspirators had no such list. Rather, Defendant and his co-conspirators had an understanding that safety standards would be violated indiscriminately when profit could be increased by violating safety laws; they would break whatever laws needed to be broken to advance their goal of making more money. Defendant does not dispute that such a conspiracy to violate mine safety standards at large constitutes a conspiracy offense 20 Appeal: 16-4193 Doc: 56 Filed: 08/15/2016 Pg: 30 of 97 under 18 U.S.C. § 371, which does not require that conspirators reach agreement on every detail of how their offense will be carried out. And the indictment described the conspiracy in copious detail, providing Defendant more than ample notice of the charge against him. Third, Defendant asserts that he was entitled to a recross-examination of witness Christopher Blanchard (whom he erroneously describes as the United States’ key witness), in addition to the four days that he spent cross-examining that witness. The standard for mandatory recross-examination in this circuit is whether redirect examination raised new subjects not previously raised in the direct and cross-examinations of the witness. The trial court has discretion to determine whether new subjects have been raised. Here, the record shows that the redirect examination of Blanchard adhered strictly to the subjects covered in Defendant’s marathon cross-examination. The record further demonstrates that the trial court properly exercised its discretion in determining whether new subjects had been raised: It applied the correct legal standard and reviewed hundreds of pages of transcript and exhibits to ensure that its conclusion was accurate. Although Defendant understandably wanted to have the last word with a witness who had worked closely with Defendant at Massey and was disposed to provide friendly testimony on cross-examination, that desire creates no legal entitlement. Finally, Defendant contests a sentence from the trial court’s jury instructions that addressed one scenario in which the jury should adopt “the conclusion of 21 Appeal: 16-4193 Doc: 56 Filed: 08/15/2016 Pg: 31 of 97 innocence.” Defendant contends that the instruction was a definition of reasonable doubt, contrary to the rule in this circuit against providing such a definition. The fact, however, is that the challenged instruction did not purport to define reasonable doubt, and the trial court carefully avoided doing so anywhere in its jury charge. The jury instructions repeated at least 38 times that proof beyond a reasonable doubt was the standard required to convict, eliminating any possibility that the jury might have been confused on that point. Several circuits have considered the “conclusion of innocence” instruction, with some approving it and others expressing concern, but none has reversed a conviction because of it. There is no basis for this Court to become the first. ARGUMENT Defendant’s appeal pursues the same four arguments made in his motion for release pending appeal, in which this Court found, after extensive briefing, not even a substantial question likely to result in reversal. His claims have grown no stronger in the full appeal briefing. The Court should affirm his conviction. I. The trial court’s instruction on willfulness under the Mine Act was correct. Defendant first contends that the trial court gave an incorrect jury instruction on the term “willfully” as it is used in the Mine Act.3 He calls it a “special” willfulness instruction, implying that it deviates from some universal instruction that 3 The United States agrees that de novo review applies to this issue. 22 Appeal: 16-4193 Doc: 56 Filed: 08/15/2016 Pg: 32 of 97 courts must provide on that term. The Supreme Court, though, consistently has said the opposite: “willfully” is a word of many meanings whose construction is often dependent on the context in which it appears. See, e.g., Bryan v. United States, 524 U.S. 184, 191 (1984). Defendant contends that the definition of willfulness in a criminal case can never include a component of reckless disregard for the law.4 But in contexts that include the criminal offense created under the Mine Act, which is at issue here, courts—including this one—have held for decades that reckless disregard for the law is a part of the definition of willfulness. No court, including the Supreme Court, has ever held that reckless disregard cannot form a component of willfulness in appropriate contexts, and this Court would contradict decades of precedent were it to become the first. A. Defendant’s core premise is wrong: Reckless disregard for the law has never been barred from the definition of criminal willfulness. The premise of Defendant’s claim is that, in criminal cases, the Supreme Court has barred from the definition of willfulness any mention of reckless disregard for the law. The fact, though, is that courts have included reckless disregard in a variety of willfulness definitions—including in Mine Act prosecutions— 4 The jury instruction that Defendant contests was this: “[W]ith respect to Count One, 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 requirement. . . . The term willfully requires an affirmative act either of commission or omission, not merely the careless omission of a duty.” J.A. 1555-56. 23 Appeal: 16-4193 Doc: 56 Filed: 08/15/2016 Pg: 33 of 97 for decades, and continue to do so today. The Supreme Court decisions that Defendant cites suggested no defect in those definitions. On the contrary, the circuits that have considered Defendant’s interpretation of those Supreme Court decisions have affirmed that reckless disregard remains a perfectly legitimate component of criminal willfulness. 1. Reckless disregard for the law is a longstanding component of many definitions of criminal willfulness up to the present day. This section presents a representative sample of criminal decisions that have included reckless disregard as a component of willfulness. It begins with a 1945 Supreme Court decision and continues with precedents from every circuit, the most recent being a 2016 Seventh Circuit decision expressly rejecting one of Defendant’s claims. The selection of precedents offered here is far from comprehensive, but it illustrates that Defendant’s claim is thoroughly at odds with the law in every circuit. Defendant’s argument involves three key dates. In 1998 and 2007, the Supreme Court decided Bryan and Safeco, respectively—the cases that Defendant says prohibited the use of reckless disregard in any criminal willfulness definition. The third key date is 1994, when the Supreme Court decided United States v. Ratzlaf, 510 U.S. 135, 137 (1994). It was in Ratzlaf that the Supreme Court initially used the phrase, later used in Bryan, on which Defendant’s argument rests: that willfulness, at least in some contexts, requires that a defendant “acted with knowledge that his 24 Appeal: 16-4193 Doc: 56 Filed: 08/15/2016 Pg: 34 of 97 conduct was unlawful.” See Bryan, 524 U.S. 184, 191-92 (1998) (quoting United States v. Ratzlaf, 510 U.S. 135, 137 (1994)). If Defendant is correct that the Supreme Court used this phrase to ban reckless disregard from all definitions of willfulness, then one would expect that reckless disregard would disappear from such definitions after 1994, when it first was uttered in Ratzlaf, or at least after 1998, when Bryan was issued. And at a minimum, Defendant’s argument, if correct, would entail the end of reckless disregard as a component of willfulness after 2007, when Safeco was decided. But even a cursory study of federal appellate decisions from around the country shows that no such thing happened. Decisions predating Ratzlaf and Bryan also are important, because they illustrate the large and venerable body of law behind the use of reckless disregard in willfulness instructions. If the Supreme Court intended, with the Ratzlaf language later quoted in Bryan, to overrule its own precedent—not to mention a multitude of similar precedents from many circuits—one would have expected it to say so clearly. See Agostini v. Felton, 521 U.S. 203, 237 (1997) (warning lower courts not to “conclude our more recent cases have, by implication, overruled an earlier precedent”). In 1945, the Supreme Court decided Screws v. United States, 325 U.S. 91 (1945), which held that in a prosecution for violating rights under color of law, the 25 Appeal: 16-4193 Doc: 56 Filed: 08/15/2016 Pg: 35 of 97 meaning of “willful” included reckless disregard for the law. Id. at 104-05. In 1961, the Seventh Circuit decided United States v. Inciso, 292 F.2d 374 (7th Cir. 1961), stating, “We hold that the term ‘willfully violates’ in Section 186(d) contemplates proof of an awareness of the restrictions of that section or a reckless disregard for that section.” Id. at 380 (emphasis added). (“Section 186(d)” referred to 29 U.S.C. § 186(d), which makes it an offense for a labor union to receive money or things of value from an employer that employs its members.) In 1966, the Tenth Circuit held, in Elbel v. United States, 364 F.2d 127 (1966), that the willfulness required for a mail fraud conviction could be established by reckless indifference for whether one’s statements were truthful. Id. at 134. In 1977, in United States v. Kaye, 556 F.2d 855 (7th Cir. 1977), the Seventh Circuit reaffirmed the reckless disregard component of its willfulness definition where a union official criminally received payments from an employer. Id. at 863-64. In 1985, in United States v. Dise, 763 F.2d 586 (3d Cir. 1985), the Third Circuit affirmed that reckless disregard was part of the willfulness definition in that circuit for violations of rights under color of law under 18 U.S.C. § 242. Id. at 592. In 1989, the Eleventh Circuit, citing earlier precedent from the D.C. Circuit, held that reckless disregard was sufficient to establish willfulness in a conviction for criminal contempt of a court order. United States v. Burstyn, 878 F.2d 1322, 1324 (11th Cir. 1989). And in 1993, the year before Ratzlaf, the Ninth Circuit 26 Appeal: 16-4193 Doc: 56 Filed: 08/15/2016 Pg: 36 of 97 applied the Supreme Court’s 1945 Screws decision, holding that reckless disregard established criminal willfulness in a prosecution for excessive police force. United States v. Reese, 2 F.3d 870, 881-82 (9th Cir. 1993). In addition to these precedents, there are two categories of pre-Ratzlaf decisions that merit special attention. In the first category are decisions of two courts of appeals, including this one, that examined the meaning of the term “willful” in the Mine Act, the context pertinent to this case. To the United States’ knowledge, these are the only two appeals court decisions to do so. In 1974, in United States v. Consolidation Coal Co., 504 F.2d 1330, 1335 (6th Cir. 1974), the Sixth Circuit instructed district courts to define willfulness in Mine Act prosecutions to mean either intentional disobedience to a safety standard or reckless disregard for its requirements. Id. at 1335. And in 1984, in United States v. Jones, 735 F.2d 785 (4th Cir. 1984), this Court’s leading decision on willfulness under the Mine Act, this Court reviewed and endorsed a definition of willfulness that also included reckless disregard for a safety standard. Jones is discussed in more detail below. The second notable pre-Ratzlaf category is a series of decisions that held the criminal and civil willfulness standards for a particular statutory scheme can be the same (contrary to the claim in Defendant’s brief) and adopted, for both the criminal and civil contexts, a definition that included reckless disregard for the law. One was 27 Appeal: 16-4193 Doc: 56 Filed: 08/15/2016 Pg: 37 of 97 in this circuit: Malouche v. J.H. Mgmt. Co., 839 F.2d 1024, 1025-26 (4th Cir. 1988) (Powell, Associate Justice (retired), sitting by designation). Malouche was a civil action under the statute prohibiting wiretapping. Id. at 1025. The statute included both civil and criminal penalties. Id. This Court, with Justice Powell sitting by designation and writing for the Court, held that the same willfulness definition applied both in civil and criminal cases—and that it included reckless disregard for the law. Id. at 1026. Justice Powell wrote that this standard—“intentional or reckless disregard”— was the “traditional meaning” of the word “willful” when used in a criminal statute. Id. The Second and Sixth Circuits both have reached the same holding. Citron v. Citron, 722 F.2d 14, 15-16 (2d Cir. 1983); Farroni v. Farroni, 862 F.2d 109, 112 (6th Cir. 1988). Despite the claims that Defendant makes now, Ratzlaf and Bryan had no apparent effect on this body of precedent: Courts continued to include reckless disregard in willfulness definitions after those decisions just as before. In 1994—the same year as Ratzlaf but several months after the Ratzlaf opinion issued—the Ninth Circuit decided United States v. Koon, 34 F.3d 1416 (9th Cir. 1994), vacated in part on other grounds, Koon v. United States, 518 U.S. 81 (1996). Koon reaffirmed that in prosecutions for criminal violations of rights under 18 U.S.C. § 242, the definition of willfulness includes reckless disregard. Koon, 34 F.3d at 1449-50. In 1995, the 28 Appeal: 16-4193 Doc: 56 Filed: 08/15/2016 Pg: 38 of 97 First Circuit specifically considered the same argument that Defendant makes in this case (examining the Ratzlaf language that Defendant now emphasizes from Bryan) and rejected it, holding that reckless disregard remained a proper component of willfulness instructions after Bryan. United States v. London, 66 F.3d 1227, 1238-42 (1st Cir. 1995). (Because London expressly rejected Defendant’s contention, it is discussed in more detail below.) In 1997, the Third Circuit reaffirmed that reckless disregard was part of its willfulness definition in a prosecution for rights violations under color of law, with no apparent effect from what Defendant calls the Supreme Court’s contrary pronouncement in Ratzlaf. That same year, the D.C. Circuit similarly reaffirmed its prior holdings that reckless disregard was part of the definition of willfulness in prosecutions for criminal contempt of court under 18 U.S.C. § 401. United States v. Rapone, 131 F.3d 188, 195 (D.C. Cir. 1997). After Bryan, in 1999, the Seventh Circuit continued to use reckless disregard as part of the definition of willfulness in prosecutions for rights violations under color of law. United States v. Bradley, 196 F.3d 762, 769 (7th Cir. 1999). In 2000, 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). In 2003, this 29 Appeal: 16-4193 Doc: 56 Filed: 08/15/2016 Pg: 39 of 97 Court affirmed that reckless disregard continues to constitute willfulness in the context of a police officer’s violation of rights under 18 U.S.C. § 242. United States v. Mohr, 318 F.3d 613, 618-19 (4th Cir. 2003). And in 2004, the Ninth Circuit, in a securities fraud case, squarely considered and rejected Defendant’s argument that Bryan barred reckless disregard from definitions of criminal willfulness. United States v. Tarallo, 380 F.3d 1174, 1188 (9th Cir. 2004). Tarallo is discussed in more detail below. Safeco, 551 U.S. 47 (2007), the 2007 Supreme Court decision that Defendant cites, similarly failed to have the effect that Defendant now claims it did. No court, to the United States’ knowledge, has interpreted it to affect willfulness standards in criminal contexts. On the contrary, the Seventh Circuit, earlier this year, expressly considered and rejected Defendant’s argument regarding Safeco in a decision discussed in more detail below. United States v. Trudeau, 812 F.3d 578 (7th Cir. 2016). At least four other circuits have reached post-Safeco decisions reiterating that reckless disregard for the law is part of the definition of criminal willfulness in the context that they considered. United States v. Figueroa, 729 F.3d 267 (3d Cir. 2013) (reckless disregard part of willfulness standard in prosecution for violation of rights under color of law); United States v. House, 684 F.3d 1173, 1199-1200 (11th Cir. 2012) (same); United States v. Thompson, 579 F. App’x. 552, 553 (9th Cir. 2014) 30 Appeal: 16-4193 Doc: 56 Filed: 08/15/2016 Pg: 40 of 97 (same); United States v. Hill, 420 F. App’x. 407, 413 (5th Cir. 2011) (reckless disregard included in definition of willfulness for purposes of criminal contempt of court in violation of 18 U.S.C. § 401). 2. The cases that Defendant cites did not affect the use of reckless disregard for the law in criminal willfulness definitions. This string of precedents, spanning nearly 70 years and continuing to the present day, refutes Defendant’s core claim: that a pair of Supreme Court decisions from 1998 and 2007 excised reckless disregard from the definition of willfulness in all criminal cases. Lower courts—including this one—continue to use reckless disregard as part of the definition of willfulness in a variety of criminal contexts. They do so because the reckless disregard component fulfills the purpose of a willfulness standard: to avoid convicting innocents who truly have no inkling that their conduct is wrongful. And they do so because, contrary to Defendant’s claim, the Supreme Court has never said to do otherwise. Although Defendant characterizes his argument as an application of existing Supreme Court authority, he in truth is asking this Court to make a brand new rule of law, one that would overturn venerable precedent here and create a split with virtually every other circuit. 31 Appeal: 16-4193 Doc: 56 Filed: 08/15/2016 Pg: 41 of 97 a. Bryan did not affect the use of reckless disregard for the law in criminal willfulness definitions. Defendant first seeks to rely on Bryan v. United States, 524 U.S. 184 (1998), the same case he pointed to in his motion for release pending appeal. Bryan, however, did not so much as mention the phrase “reckless disregard,” and it had nothing to do with whether reckless disregard for the law could be a form of criminal willfulness. Rather, it concerned a different type of willfulness question, one routinely raised by defendants in white-collar cases: 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 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 may be convicted of unlicensed firearms 32 Appeal: 16-4193 Doc: 56 Filed: 08/15/2016 Pg: 42 of 97 dealing even if one does not know of the statutory provision that makes that conduct a crime. 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, 141 (1994) (“‘Willful,’ this Court has recognized, is a ‘word of many meanings,’ and ‘its construction is often influenced by its context.’”) (internal alternations omitted). Bryan reviewed, with no apparent disfavor, a number of the meanings that courts have approved over time. “As a general matter,” the Bryan Court observed, “when used in the criminal context, a ‘willful’ act is one undertaken with a bad purpose.” Bryan, 524 U.S. at 191. The Court wrote that “willfully” could denote “without justifiable excuse”; “stubbornly, obstinately, perversely”; “a thing done without ground for believing it is lawful”; “conduct marked by careless disregard whether one has the right so to act”; “purposeful, intentional conduct”; “indifference to the requirements of the law”; or a “conscious, intentional, deliberate, voluntary decision.” Id. at 191 n.12, 197 (internal quotation marks and brackets omitted). 33 Appeal: 16-4193 Doc: 56 Filed: 08/15/2016 Pg: 43 of 97 It is inescapable that the Bryan Court discussed these varied meanings of willfulness with no hint that any of them were invalid in the context in which they are used. On the contrary, the Court even rested part of its ruling on the fact that lower courts used willfulness definitions that required no knowledge of the law one was violating. Bryan, 546 U.S. at 197-98. Had the Court intended to eliminate all definitions of willfulness except the one Defendant proposes, one would expect that, somewhere in this recitation of the broad array of willfulness standards, it would have said so. Agostini v. Felton, 521 U.S. 203, 237 (1997) (warning lower courts not to “conclude our more recent cases have, by implication, overruled an earlier precedent.”). The absence of any suggestion that the Court meant to impose a uniform definition of willfulness in all criminal cases, which would have overruled decades of precedent, refutes Defendant’s contention. And it explains plainly why courts have not read Bryan in the manner that he urges, to extinguish traditional standards of willfulness. Beyond the many courts that continue to use reckless disregard in willfulness definitions after Bryan, at least two circuits have squarely considered Defendant’s Bryan-based argument and rejected it. The First Circuit did so in United States v. London, 66 F.3d 1227 (1st Cir. 1995). London, a 1995 decision, preceded Bryan, but the defendant in London made precisely the same argument that Defendant makes 34 Appeal: 16-4193 Doc: 56 Filed: 08/15/2016 Pg: 44 of 97 here—the only difference was that he cited United States v. Ratzlaf, 510 U.S. 135 (1994), instead of Bryan. Ratzlaf was the source of the phrase, quoted in Bryan, upon which Defendant bases his argument here: that willfulness, at least in some contexts, requires that a defendant “acted with knowledge that his conduct was unlawful.” Bryan, 524 U.S. at 191-92 (quoting Raztlaf, 510 U.S. at 137). Defendant London ran a check-cashing business and was convicted of willfully failing to file currency transaction reports (“CTRs”), which he was required to do for currency transactions exceeding $10,000. London, 66 F.3d at 1230. The London trial court instructed the jury that London could be convicted of willfully violating the CTR law if he recklessly disregarded its requirements. Id. at 1238-42. London challenged that instruction, invoking the same phrase—“acted with knowledge that his conduct was unlawful”—that Defendant uses here, drawn from Ratzlaf. Id. at 1240. The First Circuit rejected defendant London’s contention. Instead, it held that Ratzlaf’s concept of knowledge of unlawfulness of one’s conduct encompasses reckless disregard for whether one’s conduct violates the law. London, 66 F.3d at 1241-42. The London court emphasized that reckless disregard means more than mere negligence; to rise to the level of reckless disregard for a legal requirement, one must have some degree of awareness that one is not following a legal requirement. London, 66 F.3d at 1242 (“When we carefully scrutinize these instructions and note 35 Appeal: 16-4193 Doc: 56 Filed: 08/15/2016 Pg: 45 of 97 that not merely the concept of recklessness is involved, but reckless disregard, we must acknowledge that the instructions require some kind of awareness of law which is not casually or negligently but recklessly disregarded.”). A person who fails to obey a law of whose existence he has no clue cannot be said to have disregarded it recklessly; to disregard a requirement recklessly, rather, one must have at least a general awareness that it exists. The Ninth Circuit, several years after the First Circuit’s ruling in London, also directly considered Defendant’s argument from Bryan—and also rejected it. In United States v. Tarallo, 380 F.3d 1174 (9th Cir. 2004), defendant Tarallo was convicted of securities fraud, among other offenses. Id. at 1180. The jury instructions in Tarallo defined willfulness to include reckless disregard for legal requirements. Id. at 1186. Defendant Tarallo contended that this instruction was error under Bryan, quoting the same passage advanced by the defendant in London and by Defendant here. Id. The Ninth Circuit rejected that claim, observing, “The Supreme Court has taken pains to observe that the word ‘willful’ ‘is a word of many meanings’ and that ‘its construction is often influenced by its context.’” Id. at 1187 (quoting Ratzlaf, 510 U.S. at 141, and citing Bryan, 524 U.S. at 191). It then held that in the context of the securities offense at issue, Ninth Circuit law was that willfulness meant a 36 Appeal: 16-4193 Doc: 56 Filed: 08/15/2016 Pg: 46 of 97 defendant knew his conduct was wrongful, and the reckless-disregard instruction met that standard. Tarallo, 380 F.3d at 1188. b. Safeco did not affect the use of reckless disregard for the law in criminal willfulness definitions. The second Supreme Court decision on which Defendant would rely is Safeco Ins. Co. v. Burr, 551 U.S. 47 (2007). Safeco was a civil action under the Fair Credit Reporting Act (FCRA) in which a class of consumers sued a group of insurance companies, alleging willful violations of the FCRA. Id. at 52. The insurance companies sought a definition of “willfully” that excluded reckless disregard for legal requirements. Id. at 56. The Supreme Court rejected that position, holding that for purposes of the civil statute at issue in Safeco, willfulness included reckless disregard. Id. at 60. The Court said unambiguously, though, that it was not interpreting the meaning of “willfully” in the criminal context. Safeco was a civil case, and “[t]he vocabulary of the criminal side of the FCRA is consequently beside the point,” the Court wrote. Id. at 60. The Court emphasized, as it typically does when interpreting the term “willfully,” that it is a “‘word of many meanings whose construction is often dependent on the context in which it appears.’” Id. at 57 (quoting Bryan, 524 U.S. at 191). And it made no mention at all of the many criminal precedents—including the Supreme Court’s own precedent in Screws v. United States, 325 U.S. 91, 104-05 (1945)—that have defined willfulness, in their particular contexts, to include reckless 37 Appeal: 16-4193 Doc: 56 Filed: 08/15/2016 Pg: 47 of 97 disregard. Because Safeco, like Bryan, evinced no intent to overturn the longstanding body of precedent defining “willfully” to include reckless disregard when the context calls for it, courts have not interpreted Safeco to mean what Defendant claims it does. As noted above, the Supreme Court does not overrule longstanding precedents by implication. Agostini v. Felton, 521 U.S. 203, 237 (1997). The United States has reviewed lower court decisions citing Safeco and found only one that even considered the question of whether Safeco bars the use of reckless disregard in a criminal willfulness instruction (because Safeco was a civil decision in which the Supreme Court said criminal-law instructions were “beside the point,” it rarely comes up in criminal cases). See United States v. Trudeau, 812 F.3d 578 (7th Cir. 2016). In that case the defendant was convicted of criminal contempt. Id. at 581. The mens rea for the offense was willfulness, and the jury was instructed that willfulness could be established through a showing of reckless disregard. Id. at 588. On appeal, the defendant made the same argument that Defendant makes here: that Safeco precludes the use of reckless disregard in a criminal willfulness instruction. The Seventh Circuit rejected that claim. Citing Supreme Court precedent, Trudeau observed that “willful is a word of many meanings, and its construction is often influenced by its context.” Id. at 589 (citing Ratzlaf v. United States, 510 U.S. 135, 38 Appeal: 16-4193 Doc: 56 Filed: 08/15/2016 Pg: 48 of 97 141, (1994) (internal quotation marks and alterations omitted). Because the context from Safeco was an entirely different one from the criminal-law context presented in Trudeau, the Seventh Circuit said, Safeco had no effect on criminal precedents that include reckless disregard as a form of willfulness. Id. Although Defendant’s Safeco argument does not appear to have been raised in criminal cases in other circuits (most litigants likely recognize its inapplicability in the criminal context), courts at both the appellate and trial levels continue, after Safeco, to adhere to precedential definitions of willfulness that include reckless disregard. See, e.g., United States v. Trudeau, 812 F.3d 578 (7th Cir. 2016); United States v. Figueroa, 729 F.3d 267 (3d Cir. 2013); United States v. House, 684 F.3d 1173, 1199-1200 (11th Cir. 2012); United States v. Thompson, 579 F. App’x. 552, 553 (9th Cir. 2014); United States v. Hill, 420 F. App’x. 407, 413 (5th Cir. 2011). These courts do not view Safeco’s civil-law interpretation of willfulness under the FCRA as altering those definitions, nor is there any reason for them to. As with his Bryan argument, Defendant asks this Court not to apply a principle that appears in Safeco, but rather to read into that decision an entirely new rule of law contradicted by decades of precedent here and around the country. B. The trial court properly followed this Court’s leading precedent on willfulness under the Mine Act. The district court’s willfulness instruction relied on this Court’s longstanding 39 Appeal: 16-4193 Doc: 56 Filed: 08/15/2016 Pg: 49 of 97 precedent from 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 convicted of willfully violating mandatory mine safety standards. Id. at 787 & n.1. The Jones trial court’s jury instruction 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). Relying on that instruction, the jury convicted the defendants of willful mine safety violations. Id. at 791-92 (noting that defendants were convicted of willful violations of mine safety standards). On appeal, this Court carefully examined the willfulness instruction that underlay the convictions, and endorsed it. It observed that the Supreme Court itself had described willfulness similarly. Id. at 789 (quoting United States v. Ill. Cent. R.R., 303 U.S. 239 (1938)). The Court further noted that the instruction “conforms to the interpretations of willfulness provided by several of the other circuits,” including the definition from the leading case on willfulness under the Mine Act. Id. (citing United States v. Consolidation Coal Co., 504 F.2d 1330, 1335 (6th Cir. 1974)). The Jones Court then ruled that the evidence against the defendants met the standard for willful misconduct. The Court’s analysis covered several different 40 Appeal: 16-4193 Doc: 56 Filed: 08/15/2016 Pg: 50 of 97 counts of willful violations. This brief will not review them all in detail, but one is of particular importance to the jury instruction that Defendant challenges in this appeal. Defendant Jones was convicted, among other things, of willfully causing a failure to conduct adequate weekly safety examinations at the mine where he was a supervisor. Id. at 791. The evidence in support of that charge was that Jones, as a person with supervisory authority over the mine, was informed of the mine’s failure to conduct adequate safety examinations and allowed it to continue. Id. The Jones Court held that this evidence “was sufficient to support a conclusion by the jury that Jones willfully caused the failure to conduct adequate weekly safety examinations at the mine.” Id. In other words, Jones concluded that when a mine supervisor knows of ongoing violations of safety laws and allows them to continue, he is guilty of willfully violating a mine safety standard. The willfulness standard in Jones also was central to resolving a constitutional challenge that the defendants there raised. The defendants contended that the Mine Act’s criminal provisions violated the Equal Protection Clause. Id. at 793. Their argument was that the offense applicable to corporate mine operators required a willful mens rea, while the offense applicable to individual agents of such operators required a knowing mens rea. Id. The Court rejected that claim as inapplicable to the facts in Jones. Because the Jones defendants were convicted of willful violations rather 41 Appeal: 16-4193 Doc: 56 Filed: 08/15/2016 Pg: 51 of 97 than knowing violations, the Court said, there was no difference between the standard under which they were convicted and the standard under which a corporate mine operator could have been convicted. Id. “Although the Government might have charged the defendants under the knowing standard of section 820(c), it deliberately chose to charge them under the willful standard of section 820(d).” Id. “The defendants therefore cannot complain that they were subjected to a discriminatory standard.” Id. To summarize, Jones was a case in which the definition of willfulness was crucial both to the defendants’ convictions and their appeal. This Court endorsed that definition—including its component of reckless disregard for the law—and affirmed the convictions. And it ruled that the willfulness standard was satisfied where a supervisor knew of ongoing safety-law violations at his mine and allowed them to continue. In this case, the district court properly followed the precedent from Jones. It drew its jury instruction on willfulness from the instruction that this Court endorsed in Jones, and it stated the law from Jones on a supervisor’s purposeful allowing of ongoing safety violations. Defendant makes two arguments concerning Jones. First, he contends that Jones was a case about knowing violations rather than willful ones and thus should not be given precedential weight in this appeal. Second, he asserts that the trial 42 Appeal: 16-4193 Doc: 56 Filed: 08/15/2016 Pg: 52 of 97 court’s instruction concerning a supervisor who purposely allows ongoing violations was not part of the instruction endorsed in Jones and thus should be treated as error.5 The first of these arguments mischaracterizes Jones. Although Defendant is correct that one of the issues in Jones had to do with knowing conduct, the willful standard of conduct was central to the case, and the Jones trial court’s definition of willfulness was endorsed by this Court on appeal. Jones did undertake a comparison of willful misconduct to knowing misconduct because, as explained above, the United States chose to prosecute the Jones defendants under a willful standard, even though the statute under which they were charged required a showing only of knowledge. Id. at 793. The defendants claimed, unsuccessfully, that the jury instruction on willfulness allowed them to be convicted on a standard lower than that of knowledge. Id. at 788. But the Jones Court was unambiguous that the defendants were convicted of willful violations, not knowing violations. The Court’s opinion made this clear at least six times in its opinion: 5 In this part of his contention, Defendant challenges the following instruction: “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, purposely, and voluntarily allows that omission to continue.” J.A. 1556. 43 Appeal: 16-4193 Doc: 56 Filed: 08/15/2016 Pg: 53 of 97 • “From this evidence, a jury reasonably could have concluded that Jones willfully caused the violation.” Jones, 735 F.2d at 791 (emphasis added). • “The evidence presented was sufficient to support a conclusion by the jury that Jones willfully caused the failure to conduct adequate weekly safety examinations at the mine.” Id. (emphasis added). • “The question of whether there was sufficient evidence to convict Jones of willfully causing a failure to conduct a weekly examination of the 1 East and 2 South areas of the mine during the week commencing October 20 is more difficult.” Id. (emphasis added). (After analysis, the Court concluded that the evidence on this count was sufficient.) • In order to uphold the conviction of defendant Neil (the night-shift supervisor), the United States “only needed to demonstrate that Neil had willfully caused miners to enter the areas when there had not been a prior safety inspection.” Id. at 792 (emphasis added). • “We are persuaded that there was sufficient evidence presented to support Neil’s conviction for willfully violating this mandatory safety standard.” Id. (emphasis added). 44 Appeal: 16-4193 Doc: 56 Filed: 08/15/2016 Pg: 54 of 97 • “Although the Government might have charged the defendants under the knowing standard of section 820(c), it deliberately chose to charge them under the willful standard of section 820(d). The defendants therefore cannot complain that they were subjected to a discriminatory standard.” Id. at 793 (emphasis added). In short, the Jones opinion leaves no room for doubt that the willful misconduct standard was at the center of the appeal. As noted above, the Court carefully examined the definition of willfulness used by the Jones district court and endorsed it, including its component of reckless disregard. Jones thus stands as this Court’s leading precedent on willfulness under the Mine Act, a point that other courts continue to recognize. See United States v. Manalapan Mining Co., No. Crim. 12-05-GFVT, 2012 WL 5198455, at *1 (E.D. Ky. Oct. 19, 2012) (citing Jones for willfulness standard in Mine Act prosecution). It is notable, moreover, that Jones does not stand alone. The only other appeals court that has considered the meaning of “willfully” in the Mine Act, at least to the United States’ knowledge, applied essentially the same definition—one that included reckless disregard for mine safety laws. United States v. Consolidation Coal Co., 504 F.2d 1330, 1335 (6th Cir. 1974). Consolidation Coal Co. remains good law. See Manalapan Mining Co., No. Crim. 12-05-GFVT, 2012 WL 5198455, at *1 (E.D. 45 Appeal: 16-4193 Doc: 56 Filed: 08/15/2016 Pg: 55 of 97 Ky. Oct. 19, 2012) (stating that Consolidation Coal Co. provides “the definitive interpretation” of “willfully” in the Mine Act). That the two courts of appeals that have addressed the question both agree on the correct definition of willfulness under the Mine Act further bolsters the willfulness instruction used by the trial court here. Defendant’s second argument concerning Jones is that it does not support the trial court’s instruction on supervisors who purposely allow ongoing violations of safety laws. This claim can be answered concisely. As explained above, Jones held that evidence of a supervisor’s purposely allowing ongoing safety violations was sufficient to show willful misconduct. That holding is binding precedent in this circuit. The district court did nothing more than instruct the jury on it, and did so correctly. C. Even if the Court were to deem the instruction error, any error would be harmless. 1. Legal standards regarding harmless error. The Court reviews evidentiary determinations for harmless error. United States v. Madden, 38 F.3d 747, 753 (4th Cir. 1994). An error is 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 46 Appeal: 16-4193 Doc: 56 Filed: 08/15/2016 Pg: 56 of 97 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). The harmless error standard is designed to prevent reviewing courts “from ‘tower[ing] above the trials of criminal cases as impregnable citadels of technicality.’” United States v. Ferguson, 752 F.3d 613, 618-19 (4th Cir. 2014) (quoting Kotteakos v. United States, 328 U.S. 750, 759 (1946)). 2. Any error with regard to the trial court’s willfulness instruction was harmless. Even if the Court were to find error in the trial court’s willfulness instruction, any error was harmless. An improper instruction on a single element of an offense is subject to harmless error analysis. See Neder v. United States, 527 U.S. 1, 9 (1999). The Supreme Court has repeatedly found harmless a district court’s improper instruction and even complete omission of an element in an instruction when there has been overwhelming and uncontroverted evidence supporting the missing or erroneous instruction. Id. For example, in United States v. Lovern, 293 F.3d 695 (4th Cir. 2002), the defendant was convicted under 26 U.S.C. § 7212(a), of impeding, intimidating, or obstructing an employee of the United States acting in an official capacity under Title 26 of the United States Code. The district court instructed the 47 Appeal: 16-4193 Doc: 56 Filed: 08/15/2016 Pg: 57 of 97 jury that, as a matter of law, the official in question was acting in an official capacity under Title 26. Id. at 699. This instruction deprived the jury of the opportunity to make a finding on an essential element of the offense. Id. at 700. Although this instruction was error, the Court found the error was harmless beyond a reasonable doubt because the unrebutted evidence at trial demonstrated that the agent was performing an official duty. Id. at 701. Defendant argues that the district court’s instructions on willfulness permitted the jury to convict him without any proof that he was aware that his conduct would cause or contribute to violations of safety regulations. This argument is belied by the overwhelming evidence at trial. Defendant received and reviewed daily reports tallying the number and nature of safety violation citations at UBB. See, e.g., J.A. 1828-64, 1978-86. He knew what the laws required, and he knew that UBB was flouting those requirements on a massive scale—because he was told daily. The president of UBB testified that there was an understanding at Massey that preventable safety violations would be tolerated, and that Defendant shared in the understanding that it was cheaper to break the safety laws than to follow them. J.A. 473-76. Defendant was told, in writing and again face to face, by a senior Massey official that the management decisions regarding staffing and production were preventing the company from following safety laws. J.A. 1905-13; J.A. 1292. 48 Appeal: 16-4193 Doc: 56 Filed: 08/15/2016 Pg: 58 of 97 Finally, a former UBB mine superintendent testified that UBB was placed on a Potential Pattern of Violations status (“PPOV”) in 2008 due to rampant and repeated safety violations. S.J.A. 8. This designation is a serious threat to a mine, because if the mine cannot turn around within 90 days, it is likely to be shut down completely. To avoid shutdown, the superintendent testified that the mine was permitted to halt production on weekends in order to conduct needed maintenance and hire labor dedicated to cleaning and bringing the mine into compliance. S.J.A. 9-10. During that time, UBB’s violations decreased by 44%. S.J.A. 12. After the mine was taken off the PPOV list and the immediate threat of shutdown was gone, the mine went back to producing coal through the weekends and the extra safety positions were eliminated. S.J.A. 11. The UBB president testified that Defendant approved the hiring of additional staff when the mine was on PPOV status. S.J.A. 15. Defendant was aware of UBB’s PPOV status and was advised regularly on the steps taken to eliminate violations. S.J.A. 54-55. This evidence demonstrates that during the time period covered by the indictment, Defendant not only knew of the law’s requirements and UBB’s failure to comply, but based on the 2008 PPOV experience, he also knew firsthand what actions would eliminate and prevent violations with certainty. Any evidence that he “did not want” violations, or took steps other than hiring more staff and dedicating 49 Appeal: 16-4193 Doc: 56 Filed: 08/15/2016 Pg: 59 of 97 more time to maintenance does not rebut the facts that he had the knowledge and ability to effectively eliminate violations and yet refused to do it. Given the evidence at trial, there is no possibility that the jury convicted Defendant based on wholly innocent management decisions that he had no idea would cause or perpetuate safety violations. II. Count One of the indictment was sufficient, and any error was harmless. A. Count One of the indictment was sufficient. Defendant next contends that the indictment was insufficient with respect to Count One, the count on which he was convicted.6 He claims that the indictment was required to include a list of the specific mine safety standards that he and his coconspirators agreed to violate, and that because such a list is absent, the indictment fails to allege an element of the offense and give him proper notice of the charge. His contention raises a threshold question: Must a conspiracy to violate mandatory mine safety and health standards in fact feature a specific list of standards that the conspirators agreed to violate? The answer is no, and, as a result, Defendant’s claim fails. The Mine Act makes it an offense for an operator of a mine willfully to violate a mandatory mine safety or health standard. 30 U.S.C. § 820(d). Regulations 6 The United States agrees that de novo review applies to this issue. 50 Appeal: 16-4193 Doc: 56 Filed: 08/15/2016 Pg: 60 of 97 promulgated pursuant to the Mine Act set forth a variety of such mandatory mine safety and health standards. See, e.g., 30 C.F.R. Part 75 (safety standards for underground coal mines). The federal criminal code makes it an independent offense to conspire to commit an offense against the United States, including an offense under the Mine Act. 18 U.S.C. § 371. A criminal conspiracy requires an agreement by two or more persons to commit a predicate substantive offense and at least one overt act in furtherance of that agreement. The conspirators need not agree on all the details of how the offense will be committed. United States v. Roberts, 881 F.2d 95, 101 (4th Cir. 1989) (“[A defendant] may become a member of the conspiracy without full knowledge of all of its details, but if he joins the conspiracy with an understanding of the unlawful nature thereof and willfully joins in the plan on one occasion, it is sufficient to convict him of conspiracy . . . .”). In a securities fraud conspiracy, for example, one may be convicted even though one did not know the details of the stock fraud scheme at the heart of the conspiracy. United States v. Downing, 297 F.3d 52, 57 (2d Cir. 2002). In a conspiracy to manufacture and possess an unregistered firearm, one may be convicted even though one did not reach any specific agreement as to the type of firearm to be manufactured or possessed, so long as one was aware of the conspiracy’s general scope. United States v. Buchanan, 787 F.2d 477, 487-88 (10th Cir. 1986). Conspiracy, moreover, is an inchoate offense: 51 Appeal: 16-4193 Doc: 56 Filed: 08/15/2016 Pg: 61 of 97 The intended substantive offense need not be completed for conspirators to be convicted. United States v. Feola, 420 U.S. 671, 694 (1975). For two or more persons to agree to violate mandatory mine safety and health standards, it is not necessary that they agree on a specific standard or list of standards that will be violated. On the contrary, just as persons can conspire to commit a firearms offense without agreeing on a specific underlying firearm, persons can agree that they will operate a mine by flouting mine safety and health standards indiscriminately, without agreeing on a discrete set of standards that they will violate. Such an agreement, plus an overt act in furtherance of it, is an unlawful conspiracy under Section 371. To put it in more concrete terms, mine executives who agree, expressly or tacitly, to break whatever safety and health standards they need to in order to make more money, and who act on that agreement, have conspired to commit the Mine Act’s criminal offense. Settled principles of conspiracy law, then, dictate that a Mine Act conspiracy may take the form of an agreement to violate safety standards at large, not just an agreement to violate one or more specifically identified standards. Even Defendant does not dispute this legal proposition. The consequences of the opposite rule would be perverse, to put it mildly: A group of mine executives could assemble in a boardroom and agree to violate safety standards on a wholesale basis at their coal 52 Appeal: 16-4193 Doc: 56 Filed: 08/15/2016 Pg: 62 of 97 mines whenever committing a violation would increase profits, yet be immunized from prosecution because they avoided naming a specific standard to violate. Meanwhile, a low-level supervisor and his crew could be imprisoned for conspiracy if they agreed to commit a single violation of a specific mine safety standard at a particular mine on a particular working shift. Such a regime obviously would benefit defendants such as the one in this case, but it is not the law. Count One of the indictment, which incorporated 25 pages of introductory allegations describing the conspiracy, both stated the elements of a conspiracy to violate the Mine Act’s criminal offense and gave Defendant ample notice of the conspiracy’s factual details. It alleged that Defendant and others “combined, conspired, confederated, and agreed” for operators of UBB “to willfully violate mandatory federal mine safety and health standards at UBB,” and committed specified overt acts in furtherance of that agreement. J.A. 138, 161-62. These allegations included the elements of the Mine Act criminal offense that was the predicate for the conspiracy: an operator of a mine; willfulness; and violation of mandatory mine safety and health standards. 30 U.S.C. § 820(d); United States v. Aracoma Coal Co., No. 08-cr-00286 (ECF 18, at 19-20) (S.D. W. Va. Jan. 26, 2009) (Tr. of Plea Hearing). It also included the elements of the offense of conspiracy: an agreement by two or more persons to perform some illegal act, willing participation 53 Appeal: 16-4193 Doc: 56 Filed: 08/15/2016 Pg: 63 of 97 by the defendant, and an overt act in furtherance of the conspiracy. 18 U.S.C. § 371; United States v. Meredith, 824 F.2d 1418, 1428 (4th Cir. 1987). By alleging the statutory elements of conspiracy and the underlying substantive offense, Count One satisfied the requirements of United States v. Hooker, 841 F.2d 1225 (4th Cir. 1988), and United States v. Kingrea, 573 F.3d 186 (4th Cir. 2009), decisions that found indictments to be insufficient because they omitted statutory elements of the charged offense. In Hooker, the indictment charged a conspiracy to violate the Racketeering Influenced and Corrupt Organizations Act, which included as a statutory element an effect on interstate commerce. But the indictment failed to allege an effect on interstate commerce. Hooker, 841 F.2d at 1227. And in Kingrea, the indictment charged a violation of 7 U.S.C. § 2156(a), which included as a statutory element sponsoring an animal in an animal fighting venture. But the indictment failed to allege that the defendant sponsored an animal. Kingrea, 573 F.3d at 192. Because Count One alleged the statutory elements of the charged offense, Hooker and Kingrea do not undermine the indictment’s sufficiency— on the contrary, they support it. Count One and its incorporated introductory allegations also gave Defendant notice of the nature and specifics of the conspiracy with which he was charged. In its first paragraph, the indictment alleged that Defendant “fostered and participated in 54 Appeal: 16-4193 Doc: 56 Filed: 08/15/2016 Pg: 64 of 97 an understanding that perpetuated UBB’s practice of routine safety violations, in order to produce more coal, avoid the cost of following safety laws, and make more money.” J.A. 105-06 (emphasis added). It alleged, “BLANKENSHIP was fully aware of UBB’s practice of routinely violating mandatory federal mine safety standards,” and, “Despite having the ready ability to drastically reduce violations of mandatory federal mine safety standards at UBB, and even though he knew that UBB’s practice of routinely violating such standards was unlawful, BLANKENSHIP purposely elected to continue that practice throughout the Indictment Period.” J.A. 119, 127 (emphases added). The indictment went into great detail concerning particular safety standards that were violated as part of the conspiracy, specifically identifying standards governing minimum airflow in a mine and ventilation plans (Superseding Indictment ¶ 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 combustible materials (¶ 31). J.A. 109-10, 112, 115-17. The indictment specifically alleged that these standards were routinely violated at UBB and that those violations were overt acts in furtherance of the conspiracy. J.A. 111, 115, 116-17, 141-42. The paragraphs of the indictment that named these specific standards were expressly incorporated into 55 Appeal: 16-4193 Doc: 56 Filed: 08/15/2016 Pg: 65 of 97 Count One (the count of conviction) in two separate places. J.A. 138, 141-42. And the indictment specifically identified these as standards contained in Title 30, Code of Federal Regulations, Chapter I. J.A. 106. The indictment also identified overt acts that Defendant personally carried out in furtherance of the conspiracy, as well as mandatory safety standards that he thereby caused to be violated. These included standards mandating proper ventilation, support for the mine’s roof and walls, and the performance of regular examinations for safety problems. J.A. 127-135. Among other things, Defendant personally told a UBB executive, “We’ll worry about ventilation or other issues at an appropriate time. Now is not the time.” J.A. 127. And the indictment alleged that he and his co-conspirators “imposed coal production requirements on UBB that they knew would, in combination with the inadequate staffing and other resources provided to UBB, cause routine, preventable, violations of mandatory federal mine safety and health standards to continue.” J.A. 131 (emphasis added). Defendant claims that the indictment provided insufficient information to identify the specific standards that it mentioned, but that contention lacks support. The indictment described the standards using language that clearly identifies them. For example, the indictment alleged, “At all relevant times, airflow in certain key areas of a coal mine was required, by mandatory federal mine safety standards, to be 56 Appeal: 16-4193 Doc: 56 Filed: 08/15/2016 Pg: 66 of 97 adequate to dilute, render harmless, and carry away explosive substances.” J.A. 109. The corresponding regulation is 30 C.F.R. § 75.325, which provides that a mine’s ventilation plan must require whatever quantity of air is “necessary to dilute, render harmless, and carry away flammable, explosive, noxious, and harmful gases, dusts, smoke, and fumes.” In another example, the indictment alleged, “At all relevant times, the operator of any coal mine was required to develop and follow a ventilation plan approved by federal mine-safety officials, also pursuant to a mandatory federal mine safety standard.” J.A. 109. The corresponding regulation is 30 C.F.R. § 75.370, which provides, “The operator shall develop and follow a ventilation plan approved by the [federal] district manager.” The indictment also identified specific citations issued for violations of the standards it described. Those citations were available to Defendant and include the C.F.R. section corresponding to each standard. See, e.g., J.A. 1736-59 (citations identified in indictment). Defendant complains that the indictment did not provide code citations for the regulations it identified, but the law is clear that such citations are not required. 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 57 Appeal: 16-4193 Doc: 56 Filed: 08/15/2016 Pg: 67 of 97 the statutory citation that is controlling”) (internal quotation marks omitted). To summarize, the indictment properly alleged a criminal conspiracy under well-established standards of conspiracy law. The conspiracy that Defendant perpetrated did not operate from a particularized list of safety standards that the conspirators intended to violate; rather, it was a conspiracy to violate safety standards at large in order to maximize profits. A conspiracy of that type is a crime. Although the conspirators identified no narrow set of standards to violate, many safety standards were, in fact, violated in the course of overt acts, and the indictment specifically identified those for Defendant as part of a long and detailed explanation of the conspiracy. Defendant cannot reasonably claim that he lacked notice of the charge against him. Defendant’s final statement on this issue is that the jury charge included instructions on safety standards that were not in the indictment. He cites several standards in this regard, but many of them in fact were identified in the indictment. For instance, Defendant claims that 30 C.F.R. § 71.201 did not relate to the indictment, but that section governs the process to test for breathable coal dust in mine air. The indictment alleged that this testing was falsified at UBB as part of the means of the conspiracy in Count One. J.A. 140-41. In another example, Defendant claims that 30 C.F.R. § 75.360 did not relate to the indictment, but that section 58 Appeal: 16-4193 Doc: 56 Filed: 08/15/2016 Pg: 68 of 97 establishes the requirement for mine operators to conduct regular safety examinations of their mines. That requirement was alleged in the indictment. J.A. 110. Defendant’s other claims on this point demonstrate a similar lack of attention to the allegations that actually appeared in the indictment. Even if there were standards included in the jury instructions that were not in the indictment, Defendant offers no explanation for why that would affect the sufficiency of the indictment or otherwise reflect error. Jury instructions instruct the jury on more than just the elements of an indictment. Evidence at trial covered a wide range of safety violations, and the trial court’s instructions permitted the jury to assess that evidence as it compared to requirements set forth in regulation. B. Even if the challenged aspect of Count One had been error, it would be harmless. Even if the challenged aspect of Count One had been error, it would be harmless. This Court has held that “the failure of an indictment to allege an element of a charged offense . . . may be reviewed for harmlessness.” United States v. Higgs, 353 F.3d 281, 306 (4th Cir. 2003); see also United States v. Mojica–Baez, 229 F.3d 292, 311 (1st Cir. 2000) (applying harmless error review “to the failure to include an element in an indictment that otherwise provided the defendants with fair notice of the charges against them”). Appellant asserts that the indictment failed to allege the name and citation of 59 Appeal: 16-4193 Doc: 56 Filed: 08/15/2016 Pg: 69 of 97 each specific regulation that he conspired to willfully violate. He does not assert that this omission prejudiced him in any manner. He does not claim that he did not have notice of the charges against him or that he could not plead the defense of former jeopardy. Appellant cannot even claim that an element of the offense was omitted in its entirety. The indictment named regulations (e.g., requirements for ventilation, wall and roof support, safety examinations, explosive coal dust) and specific instances when those regulations were violated. Moreover, the specific regulations with their citations had no bearing on his defense. See Williamson v. United States, 310 F.2d 192 (9th Cir. 1962) (indictment charging conspiracy to import marijuana “contrary to law” but omitted which law the importation violated did not warrant reversal, “especially when respect in which importation was illegal and reference to statute which made it so was not relevant to defense”). During trial, Appellant never asserted that the violations of safety regulations did not occur, or that accounts of the violations were fabricated. His defense, brought out during cross-examination of the United States’ witnesses, was that his management decisions on budget, staff, and production targets were innocent business strategies, and violations at UBB were unavoidable and unrelated to his actions and omissions. Defendant does not dispute his actions; rather, he cleaves to the notion that his conduct was not illegal. The jury rejected Defendant’s 60 Appeal: 16-4193 Doc: 56 Filed: 08/15/2016 Pg: 70 of 97 defense and convicted him of conspiring to willfully violate mine safety laws. Any error with respect to the omission of regulations and their specific citations in the indictment was therefore harmless. III. The trial court did not abuse its discretion in finding that the redirect examination of witness Blanchard raised no subjects not previously covered, and even if the Court were to find error, it was harmless. Defendant next contends that it was reversible error not to permit recrossexamination of Christopher Blanchard, a former UBB official, even after an initial cross-examination that lasted four days and introduced approximately 182 exhibits. 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) (“It is well settled that if a new subject is raised in redirect examination, the district court must allow the new matter to be subject to recross-examination.”) (internal quotation marks omitted). Defendant’s brief omits any mention of the “new subject” test set forth in Fleschner, presumably recognizing that when that standard is applied, his contention fails. The United States’ redirect examination of Blanchard, which followed the aforementioned exhaustive four-day cross-examination, adhered rigorously to the subjects of Blanchard’s previous testimony on direct and cross-examination. The redirect examination also was proportionate in length and scope to the marathon 61 Appeal: 16-4193 Doc: 56 Filed: 08/15/2016 Pg: 71 of 97 cross-examination. The district court applied the correct standard to determine whether recross was required, and it carefully considered the hundreds of pages of transcript and exhibits in the record of Blanchard’s testimony. It then reached the reasoned—and correct—conclusion that redirect did not “raise” a “new subject” that was not previously addressed on direct and cross-examination. Flescher, 98 F.3d at 158. That determination is within the district court’s substantial discretion to assess the course of a trial and decide matters of trial management and the presentation of evidence. Even if the district court were deemed to have abused its discretion in finding that redirect raised no new subjects, any error was harmless. The evidence that Defendant says he would have elicited on recross-examination was put before the jury in Blanchard’s direct and cross-examinations, not just briefly but at considerable length. Defendant had, moreover, the ability to call Blanchard as a defense witness to clarify those points if he wished. This Court has said that where a party could have recalled a witness to testify further, denial of recross-examination of that witness is harmless error. A. The trial court did not abuse its discretion in ruling that the redirect examination of Blanchard raised no new subjects. 1. Recross-examination is required only when redirect examination raises a new subject not raised in direct or cross-examination. 62 Appeal: 16-4193 Doc: 56 Filed: 08/15/2016 Pg: 72 of 97 The rule in the Fourth Circuit is that recross-examination is mandatory only where a new subject is raised in redirect. United States v. Fleschner, 98 F.3d 155, 158 (4th Cir. 1996) (“It is well settled that if a new subject is raised in redirect examination, the district court must allow the new matter to be subject to recrossexamination.”) (emphasis added); see also United States v. Pina, 974 F.2d 1241, 124445 (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). The practical basis for this rule is self-evident: Redirect examination affords an opportunity for a witness to explain and provide context to testimony that he or she gave on cross-examination. Redirect testimony thus rarely will recite, verbatim, testimony already given; that would serve little purpose. If the rule were that anything but a regurgitation of previous testimony immediately entitled an opposing party to recross-examination, then recross-examination would, for all intents and purposes, be automatic. But the general principle is the opposite: “a party has the last word with his own witness.” Fleschner, 98 F.3d at 157. The rule, then, is that recross-examination is triggered not by any testimony or evidence that provides further explanation or context for previous testimony, but rather only when redirect ventures off into subjects not raised on direct or cross-examination. 63 Appeal: 16-4193 Doc: 56 Filed: 08/15/2016 Pg: 73 of 97 2. The redirect examination of Blanchard did not raise subjects not previously raised in direct or cross-examination. In this case, 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. 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. J.A. 473-76. 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. J.A. 471-73. He testified that Defendant was aware of the large number and grave nature of safety violations cited at UBB, receiving daily information about them. J.A. 503-08; J.A. 1978-82. (Defendant’s description of Blanchard’s direct-examination testimony as a “weak” statement on a single point is, to be blunt, grossly misleading. See Def. Br. 69. If Blanchard’s testimony was so forgettable, one might reasonably ask why defense counsel felt four days were required to cross-examine him.) Defense counsel began cross-examining Blanchard on the afternoon of Friday, October 23, 2015. The cross-examination continued the following Monday, Tuesday, and Wednesday before finally concluding shortly before noon on 64 Appeal: 16-4193 Doc: 56 Filed: 08/15/2016 Pg: 74 of 97 Thursday, October 29, 2015—a week after Blanchard initially took the stand. The transcript of this exhaustive 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., J.A. 519, 544, 585, 535, 552,704-05, 706, 712. On the subject of citations at UBB, Defendant questioned Blanchard concerning approximately 59 such citations. J.A. 1640, 1641-42, 1643-53, 1654-57, 1658-64, 1665, 1666, 1667, 1668-80, 1681-87, 1688-91, 1692-93, 1694, 1695-96, 1997-1702, 1703-13, 1714-28, 1729-31, 1732-59. 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., J.A. 709 (identification tag missing from miner’s belt); J.A. 70911 (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 65 Appeal: 16-4193 Doc: 56 Filed: 08/15/2016 Pg: 75 of 97 absence of an understanding that willful violations would be committed. See, e.g., J.A. 575-80. 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., J.A. 600-01, 605. The United States’ redirect examination of Blanchard began at midday on Thursday, October 29, 2015. J.A. 788. It continued into the following day, a Friday, and concluded shortly before 4:00 p.m. J.A. 1164. The redirect examination covered the same two subjects described above, which had been explored at great length 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 spending the money necessary to follow them. J.A. 789-90. 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., J.A. 877-81. When the redirect examination ended, Defendant sought recross-examination of Blanchard, despite the court’s previous decision that recross-examination generally would not be permitted. J.A. 1164 (Defendant’s request for recross66 Appeal: 16-4193 Doc: 56 Filed: 08/15/2016 Pg: 76 of 97 examination); J.A. 319 (trial court states that recross-examination generally will not be permitted unless new matters were raised in redirect that would require it). The parties offered oral argument supporting and opposing that request. J.A. 1164-73. The court took the matter under advisement. J.A. 1177. Over the ensuing weekend, both parties made written submissions further stating their positions. J.A. 1181. 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. J.A. 1181. In the hearing, the district court denied the request for recross-examination and explained its reasoning in detail. J.A. 1181-96. 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. J.A. 1182, 1183, 1184, 1190, 1195. The district court supported this conclusion with numerous specific citations to the transcript of Blanchard’s testimony. J.A. 1183, 1184, 1188-90, 1191, 1195. 3. The district court did not abuse its discretion in finding that the redirect examination of Blanchard raised no new subjects. The question of whether testimony in a redirect examination raises new subjects is properly within the trial court’s discretion, as are evidentiary and trialmanagement rulings generally. See, e.g., United States v. Basham, 561 F.3d 302, 325 67 Appeal: 16-4193 Doc: 56 Filed: 08/15/2016 Pg: 77 of 97 (2009) (evidentiary rulings reviewed for abuse of discretion only); United States v. Beckton, 740 F.3d 303, 306 (4th Cir. 2014) (same rule for trial-management rulings). Trial courts are accorded this discretion because they generally are better situated than appellate courts to assess the significance of one event or item of evidence within the context of an entire trial. See, e.g., Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 384 (2008) (noting deference to district court’s familiarity with details of case); United States v. Gabinskaya, ___ F.3d ___, No. 15-776-CR, 2016 WL 3736414, at *4 (2d Cir. July 12, 2016) (trial court in superior position to assess evidence); United States v. Fernandez, 913 F.2d 148, 155 (4th Cir. 1990) (noting that discretion to district court was warranted because “[t]rial judges are much closer to the pulse of the trial than we can ever be”). Whether a witness’s testimony falls within previously raised subjects or instead raises a new one is a classic question of evidentiary interpretation, not dissimilar to the question of whether a piece of testimony tends to establish a particular fact or instead is unrelated to it. The latter question, of course, is the test for the relevancy of evidence, a matter in which the discretion of trial courts is well established. See, e.g., United States v. France, 164 F.3d 203, 209-10 (4th Cir. 1998). Precedent from this circuit and elsewhere makes clear that trial courts’ discretion extends to rulings on recross-examination. See, e.g., United States v. 68 Appeal: 16-4193 Doc: 56 Filed: 08/15/2016 Pg: 78 of 97 Fleschner, 98 F.3d 155, 158 (4th Cir. 1996); United States v. Hyde, 574 F.2d 856, 872 (5th Cir. 1978). Defendant is correct that recross-examination is required where redirect examination strays into new subjects. But the question of whether a new subject has been raised requires a close review of evidence, and is one in which the trial court must have considerable discretion. If trial courts possess discretion to declare (or not declare) mistrials, to exclude evidence from the jury’s consideration altogether, and even to choose the jurors who will decide a case, surely they have discretion to determine whether testimony raises a new subject. See United States v. Chase, 372 F.2d 453, 465 (4th Cir. 1967) (trial court has discretion to declare or not declare mistrial); United States v. Young, 248 F.3d 260, 269-70 (4th Cir. 2001) (trial court has discretion to exclude evidence from jury’s consideration, even where a defendant claims it is essential to his defense); United States v. Edwards, 188 F.3d 230, 235-37 (4th Cir. 1999) (trial court has discretion to dismiss or retain jurors). The trial court’s conclusion—that redirect examination adhered to the subjects raised previously in direct and cross-examination—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 69 Appeal: 16-4193 Doc: 56 Filed: 08/15/2016 Pg: 79 of 97 concerned responses from Massey executives. The redirect examination merely tested the testimony given on these subjects on cross-examination. It raised no subjects that were not covered comprehensively in Defendant’s four-day crossexamination. Cf. Turner v. United States, 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 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. 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 70 Appeal: 16-4193 Doc: 56 Filed: 08/15/2016 Pg: 80 of 97 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 relies almost exclusively on United States v. Caudle, 606 F.2d 451 (4th Cir. 1979). In Caudle, however, the trial court failed to apply the correct standard to determine whether recross-examination was required: It made no finding at all on whether redirect examination raised new subjects. Id. at 458-59. The Caudle panel on appeal said there was no valid exercise of the district court’s discretion, and it examined on its own, as a matter unconsidered in the district court, whether the redirect testimony raised new subjects. Id. On the dispositive question of whether redirect examination raised new subjects, then, there simply was no district court finding for the appeals court to review. (Caudle, incidentally, contrary to Defendant’s claim, made no mention of de novo review on issues of recross-examination.) A district court abuses its discretion when it fails to consider judicially recognized factors constraining its exercise of discretion. United States v. Grant, 715 F.3d 552, 557 (4th Cir. 2013). The trial court here, unlike the one in Caudle, considered the correct factors, and did so thoroughly. 71 Appeal: 16-4193 Doc: 56 Filed: 08/15/2016 Pg: 81 of 97 The procedural history before the Court in this case could not be more different from that in Caudle. Here, the history discloses four days of painstaking cross-examination by the defense, two to three days spent by the trial court reviewing hundreds of pages of testimony and exhibits, and detailed findings by the trial court on the exact evidentiary question that controls the Fleschner inquiry. Had the Caudle appeals court been faced with such a record, a different outcome seems probable. At minimum, given the vastly different facts and circumstances, one can hardly say that Caudle offers a close parallel to this appeal. B. Even if the district court were deemed to have erred, any error was harmless. Even if the district court were deemed to have abused its discretion, any error was harmless. See Coy v. Iowa, 487 U.S. 1012, 1021 (1988) (Confrontation Clause violations subject to harmless error analysis). Defendant proposes three main points he wanted to make in a recross-examination of Blanchard: 1) Blanchard’s redirect testimony about his shared understanding with Defendant was vague and incomplete; 2) the daily violation reports that Defendant received provided summary information on citations issued at UBB, rather than all the information in the citation; and 3) different staffing decisions by Defendant would not have prevented violations. Def. Br. at 72-74. Addressing those points on redirect would have made little if any difference in the case, for the same reason that recross was not required: 72 Appeal: 16-4193 Doc: 56 Filed: 08/15/2016 Pg: 82 of 97 all three subjects were already thoroughly covered in the direct and crossexaminations of Blanchard. Defense counsel devoted a large portion of Blanchard’s cross-examination to questions on Blanchard’s criminal understanding with Defendant—or, more precisely, Defendant’s theory that there was none. Space limitations do not permit the United States to list all the testimony to that effect, but some examples suffice to illustrate. Blanchard, although called by the United States, testified on crossexamination as a defense-friendly witness, and defense counsel elicited testimony including the following: there was no understanding between Blanchard and Defendant that it was acceptable to have safety violations at UBB; Blanchard and Defendant had no understanding about committing violations but both understood that safety citations would be written regardless of what they did; there was no unwritten understanding that Defendant instructed or wanted Blanchard to have violations; none of the citations on which defense counsel questioned Blanchard were the result of a conspiracy between Defendant and Blanchard; and there was no unspoken agreement between Blanchard and Defendant to violate mine safety laws. J.A. 535, 585, 712, 785-86. These are only a few of many more examples from the cross-examination. Suffice to say, Defendant thoroughly explored with Blanchard his position on the non-existence of any conspiracy or understanding. And just in case 73 Appeal: 16-4193 Doc: 56 Filed: 08/15/2016 Pg: 83 of 97 he did not make the point as many times as he desired in cross-examination, he repeated it again—multiple times—to lead off his closing argument. The second point—the contents of the daily report that Defendant received on safety violations—was covered in detail in Blanchard’s direct examination. The United States introduced examples of the report from two different dates and walked Blanchard through them page by page, highlighting the fact that the reports contained summary statistics about safety violations at UBB and the group of mines of which UBB was a part. J.A. 503-08, 1978-86; S.J.A. 18-19. Neither the United States’ direct examination of Blanchard nor its redirect suggested that the daily reports included the complete information from every citation issued at UBB; on the contrary, the emphasis was on the aggregate statistics that conveyed to Defendant the staggering number of violations at the mine. J.A. 506; S.J.A. 18-19. If Defendant believed that this point was unclear to the jury and material to the case, he had every opportunity to address it in his closing argument, since the daily reports themselves were in evidence. Defense counsel additionally cross-examined Blanchard at length on the theory that Defendant’s staffing decisions at UBB did not lead to safety violations. Defense counsel elicited testimony that there were mines that employed more miners than UBB and produced less coal but were cited for more safety violations. 74 Appeal: 16-4193 Doc: 56 Filed: 08/15/2016 Pg: 84 of 97 J.A. 784. Defense counsel also elicited testimony that Defendant did not, in Blanchard’s view, believe that hiring more miners was an effective way to reduce citations for safety violations. J.A. 3310-11. Defense counsel elicited testimony that Blanchard did not know whether Defendant personally weighed in on UBB’s staffing levels when the company’s annual budgets were prepared. S.J.A. 22 (Trial Tr. 3180:2-4). And defense counsel engaged in extended cross-examination concerning various UBB personnel budgets, eliciting testimony that purported to show that staffing at UBB was adequate. S.J.A. 25-34. Appellant made the point again later in the trial, repeatedly, during the cross examination of United States witness Bill Ross. J.A. 1384 (“In fact, you didn’t know whether or not adding one miner to any one section would, would guarantee there would be no citations on that section, could you?”); S.J.A. 40-41 (Trial Tr. 4299:24300:4) (“So reducing citations isn’t just a matter of [staffing] numbers, is it?”); S.J.A. 42 (Trial. Tr. 4301:3-15) (“I’m not going to say that by having another person that they would receive less violations.”); J.A. 1415 (“And you know Mr. Blankenship didn’t agree with you that hiring more miners was the solution to reducing citations. You know that?”). Preventing Appellant from making this point, yet again, on recross could not have had any effect on the jury’s decision. See United States v. Barahona, 606 F. App’x 51, 65 (4th Cir. 2015) (no reversal for preventing defendant 75 Appeal: 16-4193 Doc: 56 Filed: 08/15/2016 Pg: 85 of 97 from recalling government witnesses where desired questioning on recall had already been thoroughly brought to jury’s attention and would not have made difference in jury’s decision). To review, then, the three things Defendant says he would have proved in a recross-examination of Blanchard were already amply in evidence from Blanchard’s direct and cross-examinations. The denial of recross-examination, even if error, was harmless for this reason. It also was harmless for an additional reason previously recognized by this Court: Blanchard remained available for the defense to call as its own witness if it wished to do so. In that circumstance, even an erroneous denial of recross-examination does not support reversal. United States v. Gibson, 187 F.3d 631, 1999 WL 543220, at *5-6 (4th Cir. July 27, 1999) (unpublished table decision), 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.”); Fleschner, 98 F.3d 155, 158 (4th Cir. 1996) (affirming denial of recross-examination; noting that “a further examination by the defendants’ attorney not in the form of a crossexamination”—that is, a direct examination by the defense itself—could have been permissible). 76 Appeal: 16-4193 Doc: 56 Filed: 08/15/2016 Pg: 86 of 97 IV. The trial court’s “conclusion of innocence” instruction did not purport to define “reasonable doubt” and did not lead to an erroneous jury charge. Finally, Defendant contends that the jury charge impermissibly defined reasonable doubt. The argument underlying this contention, however, does not match the heading Defendant places on it: The instruction that Defendant complains about does not purport to define reasonable doubt. And none of the precedents that Defendant cites describes the instruction as a definition of reasonable doubt. Defendant calls the instruction a definition of reasonable doubt because he wishes to take advantage of this Court’s prohibition on such definitions. But his label does not fit. In point of fact, the instruction is one to choose the conclusion of innocence if the evidence reasonably permits it. Other courts have criticized this instruction, but none has reversed a conviction because of it. That unprecedented step certainly is not warranted here, where the trial court correctly instructed the jury no fewer than 38 times on the reasonable doubt standard required to convict. Viewed as a whole, as they must be, the trial court’s jury instructions properly charged the jury on this point. A. The “conclusion of innocence” instruction did not purport to define reasonable doubt. The challenged jury instruction did not purport to define reasonable doubt, 77 Appeal: 16-4193 Doc: 56 Filed: 08/15/2016 Pg: 87 of 97 and it did not run afoul of this Court’s prohibition on such definitions. The instruction was this: “If the jury views 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. The instruction was not phrased as a definition of reasonable doubt; at no point in its jury charge did the trial court undertake to tell the jury what reasonable doubt means. Although Defendant cites several decisions that have expressed concern about the “conclusion of innocence” instruction, he omits to say that none of them described it as a definition of reasonable doubt. To the extent courts have found the instruction to be less than ideal, it has been for other reasons. Notably, many trial courts in this circuit have used the “conclusion of innocence” instruction notwithstanding this Court’s well-known rule that reasonable doubt is not to be defined. Those courts presumably recognized, as the United States points out here, that the instruction is not a definition of reasonable doubt. United States v. Pomrenke, No. 1:15-CR-00033, 2016 WL 758804, (W.D. Va. Feb. 22, 2016) (using “conclusion of innocence” instruction in trial for public corruption and tax fraud); United States v. Feyisetan, No. 10-CR-00596, 2012 WL 12334381 (D. Md. Feb. 27, 2012) (using “conclusion of innocence” instruction in trial for bank fraud and identity theft); United States v. Thompson, No. 6:02-10278 Appeal: 16-4193 Doc: 56 Filed: 08/15/2016 Pg: 88 of 97 HMH, 2007 WL 2815586, at *3 (D.S.C. Sept. 25, 2007) (in trial for drug and firearm possession, rejecting challenge to instruction that included the “conclusion of innocence” language and finding that the trial court “properly charged the jury and did not define reasonable doubt.”); United States v. Mayberry, No. 5:05-CR-299FL, 2006 WL 6457613 (E.D. N.C. June. 8, 2006) (using “conclusion of innocence” instruction in trial for firearm possession); United States v. Muldoon, No. 89-CR00326, 1989 WL 1641193 (E.D. Va. Dec. 29, 1989) (using “conclusion of innocence” instruction in trial for bribery).7 This Court has never, so far as the United States has determined or Defendant’s brief discloses, expressed any reservations about the use of the instruction—again, notwithstanding the aforementioned rule against defining reasonable doubt. B. Defendant cites no precedent where the “conclusion of innocence” instruction was held to be reversible error, and appellate panels in at least two circuits have approved of it. None of the precedents that Defendant cites reversed a conviction based on the “conclusion of innocence” instruction given in this case. Defendant points to United States v. Hughes, 389 F.2d 535 (2d Cir. 1968), as a precedent supporting his contention, but the contested instruction in Hughes was a different one. The Second 7 In the foregoing citation sentence, several Westlaw citations lack a page number for the cited material. These are court documents available online on Westlaw that have no internal page numbering. 79 Appeal: 16-4193 Doc: 56 Filed: 08/15/2016 Pg: 89 of 97 Circuit, in fact, said so explicitly in a subsequent case, United States v. Khan, 821 F.2d 90 (2d Cir. 1987). Khan reviewed a trial-court instruction that substantively was identical to the one in this case and opined that it was a different instruction from the instruction in Hughes—and “not quite as troublesome.” Id. at 92. Considering an instruction that truly was the same as the one in this case, Khan cautioned district courts in the Second Circuit against using it—but held that its use in the case then on appeal was not error, because the instructions as a whole correctly instructed the jury on reasonable doubt. Id. at 92-93. Khan went so far as to observe that the instruction was “obviously correct.” Id. And it noted that two other Second Circuit panels had concluded the instruction was not misleading at all. Id. (citing United States v. Cacchillo, 416 F.2d 231, 234 (2d Cir. 1969); United States v. Praetorius, 622 F.2d 1054, 1061-62 (2d Cir. 1979), cert. denied, 449 U.S. 860 (1980)). Hughes, moreover, besides featuring a different instruction than the one that Khan called “obviously correct,” rested its decision to reverse the defendant’s conviction on a second ground: a constitutional violation in the prosecution’s closing argument. Hughes, 389 F.2d at 537. Hughes made clear that it was the combined force of those errors—not just the jury instruction—that led the panel to reverse. Id. Like the Second Circuit panels in Cacchillo and Praetorius, the First Circuit has 80 Appeal: 16-4193 Doc: 56 Filed: 08/15/2016 Pg: 90 of 97 held that the “conclusion of innocence” instruction poses no difficulty, particularly if used in conjunction with other instructions that charge the jury on the requirement of proof beyond a reasonable doubt. United States v. Fuentes, 57 F.3d 1061, No. 94-1623, 1995 WL 352808, at *1 (1st Cir. 1995) (unpublished table decision). The Fuentes court wrote 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.” Id. (emphasis added). It continued, “we do not think that a jury repeatedly instructed on the reasonable doubt standard could view the two-conclusions charge as substituting for or modifying the reasonable doubt standard.” Id. Defendant’s other cited cases, meanwhile, all declined to disturb convictions even where they expressed skepticism about the “conclusion of innocence” instruction. See United States v. Creech, 408 F.3d 264, 268 (5th Cir. 2005) (affirming conviction where trial court gave “conclusion of innocence” instruction); United States v. Dowlin, 408 F.3d 647, 666–67 (10th Cir. 2005) (cautioning against use of “conclusion of innocence” instruction, but affirming conviction where “[t]he 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. Isaac, 134 F.3d 199, 204 (3d Cir. 1998) (disapproving “conclusion of innocence” instruction 81 Appeal: 16-4193 Doc: 56 Filed: 08/15/2016 Pg: 91 of 97 but affirming convictions where “[a]s a whole, the court’s instructions adequately conveyed the government’s burden of proof to the jury”); United States v. Jacobs, 44 F.3d 1219, 1226 (3d Cir. 1995) (disapproving “conclusion of innocence” instruction but affirming conviction, finding no constitutional deficiency in instructions); United States v. Inserra, 34 F.3d 83, 91 (2d Cir. 1994) (court affirmed conviction where instructions included “conclusion of innocence” language but, “as a whole properly conveyed the concept of reasonable doubt to the jury”); United States v. Khan, 821 F.2d 90, 92 (2d Cir. 1987) (requesting district courts not use “conclusion of innocence” instruction, but affirming conviction where jury instructions “fairly conveyed to the jury the concept of proof beyond a reasonable doubt”) ; United States v. Pena, 527 F.2d 1356, 1365 (5th Cir. 1976) (declining to reverse based on instructions that included “conclusion of innocence” language); United States v. Greer, 527 F. App’x 225, 235 (3d Cir. 2013), judgment vacated on other grounds, 134 S. Ct. 1875 (2014) (recognizing disfavor of “conclusion of innocence” instruction, but affirming conviction). C. The jury charge here, viewed as a whole, correctly instructed the jury on the standard of proof required for conviction. The trial court instructed the jury at least 38 times that a conviction required proof beyond a reasonable doubt. In assessing a claim of instructional error, this Court does not view a single instruction in isolation; rather, it considers whether, 82 Appeal: 16-4193 Doc: 56 Filed: 08/15/2016 Pg: 92 of 97 taken as a whole and in the context of the entire charge, the instructions fairly and accurately state the controlling law. United States v. Hassan, 742 F.3d 104, 129 (4th Cir. 2014). The transcript of the jury charge is 54 pages long, and the “conclusion of innocence” instruction appears on the 22nd page of that charge, about halfway through. J.A. 1552. Repeated instructions on the reasonable doubt standard both preceded and followed it. Space does not permit all of them to be quoted in full, but a representative sample demonstrates the manner in which the trial court charged the jury on this issue: • “[T]he crucial question that you must ask yourselves as you sift through the evidence as to each count of the indictment is: Has the Government proven the guilt of the defendant beyond a reasonable doubt?” S.J.A. 49. • “If you have a reasonable doubt as to the defendant's guilt, you must not hesitate because of sympathy or any other reason to find the defendant not guilty.” J.A. 1551. • “In order to convict the defendant of any of the offenses charged in the superseding indictment, the Government must prove to you beyond a reasonable doubt all of the elements of the particular offense or offenses.” S.J.A. 50. 83 Appeal: 16-4193 Doc: 56 Filed: 08/15/2016 Pg: 93 of 97 • “So the presumption of innocence alone is sufficient to acquit a defendant unless the jurors are satisfied beyond a reasonable doubt of the defendant's guilt after careful and impartial consideration of all the evidence in the case.” S.J.A. 51. • “The Court instructs you that you must be unanimous in the act or acts which you find have been proven beyond a reasonable doubt.” S.J.A. 52. • “If you find from your consideration of the evidence that the Government has not proven any one of these elements beyond a reasonable doubt, then you must find the defendant not guilty of this charge.” S.J.A. 53. Given the entirety of the trial court’s jury charge, there can be no serious contention that the jury was unaware that it must find proof beyond a reasonable doubt in order to convict. See United States v. Fuentes, 57 F.3d 1061, 1995 WL 352808, at *1 (1st Cir. 1995) (unreported; table citation). Defendant asks this Court to become the first to reverse a conviction based on the “conclusion of innocence” instruction given here, but the record provides no reason for the Court to do so. 84 Appeal: 16-4193 Doc: 56 Filed: 08/15/2016 Pg: 94 of 97 CONCLUSION Defendant’s brief repeats the same four arguments that this Court considered and found lacking in his motion for release pending appeal. His initial contention, that reckless disregard for the law is categorically barred from criminal willfulness instructions, would upend decades of settled (and well-founded) law, including precedents from the Supreme Court and this Court. Not least among them would be this Court’s leading precedent on willfulness under the Mine Act. Concerning the sufficiency of Count One of the indictment, a straightforward examination confirms that it included all the statutory elements of criminal conspiracy and of the underlying offense. Defendants need not agree on a list of specific ways that they will commit their intended offense in order to be guilty of conspiracy. And the indictment expansively described the conspiracy alleged, giving him ample notice of the charge against him. As to recross-examination of witness Blanchard, the trial court properly exercised its discretion. It carefully applied the correct standard and accurately determined that Blanchard’s redirect examination raised no new subjects not addressed in direct examination or Defendant’s exhaustive four-day crossexamination. And in any event, the direct and cross-examinations thoroughly covered all the areas that Defendant says he would have revisited in recrossexamination. A defendant’s desire to score points by having the last word with a witness does not create an entitlement to recross-examination. 85 Appeal: 16-4193 Doc: 56 Filed: 08/15/2016 Pg: 95 of 97 Finally, the trial court’s “conclusion of innocence” instruction, taken in the context of a jury charge that include 38 instructions on the necessity for proof beyond a reasonable doubt, created no error. Courts in this district have used the “conclusion of innocence” instruction often. Some courts of appeals have considered and approved it while others have expressed concern, but none has reversed a conviction because of it. This case presents no occasion for this Court to become the first. In sum, none of Defendant’s contentions raises any substantial question as to the trial court’s rulings or the jury’s verdict. The Court should affirm Defendant’s conviction in all respects. Respectfully submitted, CAROL A. CASTO United States Attorney By: 86 s/Steven R. Ruby STEVEN R. RUBY R. GREGORY MCVEY GABRIELE WOHL Assistant United States Attorneys Appeal: 16-4193 Doc: 56 Filed: 08/15/2016 Pg: 96 of 97 CERTIFICATE OF COMPLIANCE Certificate of Compliance with Type-Volume Limitation, Typeface Requirements, and Type Style Requirements 1. This brief complies with the type-volume limitation set forth in the Court’s May 24, 2016 (Doc. 28), because this brief contains 19,676 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). 2. This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6), because the brief has been prepared in a proportional typeface using Microsoft Word 2016 in 14-point Goudy Old Style. s/Steven R. Ruby STEVEN R.RUBY Assistant United States Attorney Attorney for the United States Date: August 15, 2016 Appeal: 16-4193 Doc: 56 Filed: 08/15/2016 Pg: 97 of 97 CERTIFICATE OF SERVICE I hereby certify that on August 15, 2016, I electronically filed the foregoing "BRIEF OF APPELLEE THE UNITED STATES OF AMERICA" with the Clerk of court using the CM/ECF System, which will send notice of such filing to the following registered CM/ECF user: William W. Taylor, III Michael R. Smith Eric R. Delinsky Zuckerman Spaeder LLP 1800 M. Street, NW Washington, DC 20036 Email: wtaylor@zuckerman.com s/Steven R. Ruby_________________ STEVEN R. RUBY Assistant United States Attorney Attorney for the United States