No. 16-1413

In the Supreme Court of the United States
DONALD L. BLANKENSHIP, PETITIONER
v.
UNITED STATES OF AMERICA
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

JEFFREY B. WALL
Acting Solicitor General
Counsel of Record
JEFFREY H. WOOD
Acting Assistant Attorney
General
JENNIFER SCHELLER NEUMANN
AVI KUPFER
Attorneys
Department of Justice
Washington, D.C. 20530-0001
SupremeCtBriefs@usdoj.gov
(202) 514-2217

 QUESTIONS PRESENTED

1. Whether the court of appeals erred in holding
that a person “willfully” violates a mine safety standard
within the meaning of 30 U.S.C. 820(d) if he acts in reckless disregard of the standard’s requirements.
2. Whether the court of appeals erred in relying in
part on petitioner’s ability to recall the relevant witness
in holding that any error in the district court’s denial of
his request for recross-examination was harmless.

(I)

 TABLE OF CONTENTS

Page
Opinion below ................................................................................ 1
Jurisdiction .................................................................................... 1
Statement ...................................................................................... 1
Argument....................................................................................... 9
Conclusion ................................................................................... 25
TABLE OF AUTHORITIES

Cases:
Ajoku v. United States, 134 S. Ct. 1872 (2014) ................... 17
Article II Gun Shop, Inc. v. Gonzales, 441 F.3d 492
(7th Cir.), cert. denied, 549 U.S. 995 (2006) ..................... 15
Browder v. United States, 312 U.S. 335 (1941)................... 10
Bryan v. United States, 524 U.S. 184 (1998) ............. passim
Cheek v. United States, 498 U.S. 192 (1991) ....................... 10
Delaware v. Fensterer, 474 U.S. 15 (1985) .......................... 23
Delaware v. Van Arsdall, 475 U.S. 673 (1986) ................... 23
Farmer v. Brennan, 511 U.S. 825 (1994) ............................ 12
Felton v. United States, 96 U.S. (6 Otto) 699 (1877) .......... 10
Hale v. United States, 435 F.2d 737 (5th Cir. 1970),
cert. denied, 402 U.S. 976 (1971) ....................................... 23
Hazen Paper Co. v. Biggins, 507 U.S. 604 (1993) .............. 12
Heikkinen v. United States, 355 U.S. 273 (1958) ............... 10
May v. United States, No. 12-cr-50, 2014 WL 427801
(S.D. W. Va. Feb. 3, 2014) .................................................... 5
Melendez-Diaz v. Massachusetts, 557 U.S. 305
(2009) .............................................................................. 24, 25
Perri v. Department of the Treasury, 637 F.2d 1332
(9th Cir. 1981) ...................................................................... 15
Ratzlaf v. United States, 510 U.S. 135 (1994) ............... 10, 11
RSM, Inc. v. Herbert, 466 F.3d 316 (4th Cir. 2006) ..... 15, 16
(III)

 IV
Cases—Continued:

Page

Russell v. United States, 134 S. Ct. 1872 (2014) ................. 17
Safeco Ins. Co. of Am. v. Burr, 551 U.S. 47
(2007) ...................................................................... 8, 9, 16, 17
Screws v. United States, 325 U.S. 91 (1945) ....................... 12
Spies v. United States, 317 U.S. 492 (1943) ........................ 10
Stein’s Inc. v. Blumenthal, 649 F.2d 463
(7th Cir. 1980) ...................................................................... 15
Thunder Basin Coal Co. v. Reich, 510 U.S. 200 (1994) ....... 2
Trans World Airlines, Inc. v. Thurston, 469 U.S. 111
(1985) .................................................................................... 12
United States v. Consolidation Coal Co.,
504 F.2d 1330 (6th Cir. 1974) ......................................... 8, 19
United States v. Figueroa, 729 F.3d 267
(3d Cir. 2013), cert. denied, 134 S. Ct. 1037 (2014) .......... 19
United States v. Hughart, No. 12-cr-220
(S.D. W. Va. Nov. 28, 2013) .................................................. 5
United States v. Jones, 735 F.2d 785 (4th Cir.),
cert. denied, 469 U.S. 918 and 469 U.S. 936 (1984)...... 8, 16
United States v. Lanier, 520 U.S. 259 (1997) ..................... 12
United States v. McFadden, 823 F.3d 217
(4th Cir. 2016), cert. denied, 137 S. Ct. 1434
(2017) .................................................................................... 22
United States v. Murdock, 290 U.S. 389 (1933) ...... 10, 11, 14
United States v. Quiel, 595 Fed. Appx. 692
(9th Cir. 2014), cert. denied, 135 S. Ct. 2336 (2015)......... 24
United States v. Ross, 33 F.3d 1507 (11th Cir. 1994),
cert. denied, 515 U.S. 1132 (1995) ..................................... 23
United States v. Stover, 499 Fed. Appx. 267
(4th Cir. 2012) ........................................................................ 5
United States v. Trudeau, 812 F.3d 578 (7th Cir.),
cert. denied, 137 S. Ct. 566 (2016) ..................................... 19

 V
Cases—Continued:

Page

Voisine v. United States, 136 S. Ct. 2272 (2016) ................ 12
Wood v. Allen, 558 U.S. 290 (2010) ...................................... 20
Constitution, statutes, and rule:
U.S. Const. Amend. VI
(Confrontation Clause) ....................................... 7, 23, 24, 25
Fair Credit Reporting Act, 15 U.S.C. 1681n(a) .................. 16
Federal Coal Mine Health and Safety Act of 1969,
Pub. L. No. 91-173, 83 Stat. 742 .......................................... 2
§ 109, 83 Stat. 756-758 ....................................................... 2
Federal Mine Safety and Health Act of 1977,
30 U.S.C. 801 et seq. .............................................................. 2
30 U.S.C. 801(e) ................................................................. 2
30 U.S.C. 801(g) ................................................................. 2
30 U.S.C. 802(d) ................................................................. 2
30 U.S.C. 811(a) ................................................................. 2
30 U.S.C. 820(d) ...................................................... passim
18 U.S.C. 242 .......................................................................... 12
18 U.S.C. 371 ............................................................................ 1
18 U.S.C. 923(e) ..................................................................... 15
18 U.S.C. 924(a)(1)(D) ........................................................... 13
18 U.S.C. 1001 ........................................................................ 18
18 U.S.C. 1035 .................................................................. 17, 18
29 U.S.C. 557a .......................................................................... 2
Sup. Ct. R. 14.1(a) .................................................................. 20
Miscellaneous:
Black’s Law Dictionary (10th ed. 2014) ............................. 14
Federal Bureau of Prisons, U.S. Dep’t of Justice,
Find an Inmate, https://www.bop.gov/inmateloc/
(last visited Aug. 23, 2017) ................................................... 6

 VI
Miscellaneous—Continued:

Page

Mine Safety & Health Admin., U.S. Dep’t of Labor,
Report of Investigation: Fatal Underground Mine
Explosion, https://arlweb.msha.gov/Fatals/2010/
UBB/FTL10c0331noappx.pdf (last visited
Aug. 23, 2017) .................................................................... 3
Model Penal Code § 2.02(c) (1985) ....................................... 12

 In the Supreme Court of the United States
No. 16-1413
DONALD L. BLANKENSHIP, PETITIONER
v.
UNITED STATES OF AMERICA
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. 1a-31a)
is reported at 846 F.3d 663.
JURISDICTION

The judgment of the court of appeals was entered on
January 19, 2017. A petition for rehearing was denied
on February 24, 2017 (Pet. App. 32a-33a). The petition
for a writ of certiorari was filed on May 25, 2017. The
jurisdiction of this Court is invoked under 28 U.S.C.
1254(1).
STATEMENT

Following a jury trial in the United States District
Court for the Southern District of West Virginia, petitioner was convicted on one count of conspiring to violate federal mine safety and health standards, in violation of 18 U.S.C. 371 and 30 U.S.C. 820(d). He was sentenced to one year of imprisonment, to be followed by
(1)

 2
one year of supervised release, and fined $250,000. The
court of appeals affirmed. Pet. App. 1a-31a.
1. In the Federal Coal Mine Health and Safety Act
of 1969 (Coal Act), Pub. L. No. 91-173, 83 Stat. 742, Congress sought to protect coal miners by imposing civil and
criminal penalties on mine operators who violate federal
health or safety standards. Id. § 109, 83 Stat. 756-758.
In 1977, Congress “strengthened and streamlined [the
Coal Act’s] health and safety enforcement requirements,” Thunder Basin Coal Co. v. Reich, 510 U.S. 200,
211 (1994), by enacting the Federal Mine Safety and
Health Act of 1977 (Mine Act), 30 U.S.C. 801 et seq.
The Mine Act establishes a comprehensive framework of mandatory safety and health standards “for the
protection of life and prevention of injuries in coal or
other mines.” 30 U.S.C. 811(a). It imposes an affirmative obligation on mine operators to ensure compliance
with those standards. 30 U.S.C. 801(e) and (g). The
Secretary of Labor has authority to enforce the Mine
Act through the Mine Safety and Health Administration
(MSHA). 29 U.S.C. 557a; see Thunder Basin, 510 U.S.
at 204 & n.4.
The Mine Act carries forward the Coal Act’s criminal
penalties for certain violations of federal health and
safety standards. It provides that “[a]ny operator who
willfully violates a mandatory health or safety standard” is subject to criminal prosecution. 30 U.S.C. 820(d).
The “operator[s]” potentially subject to liability under
Section 820(d) include any “owner, lessee, or other person who operates, controls, or supervises a coal or other
mine.” 30 U.S.C. 802(d). A first-time violator of Section
820(d) is guilty of a misdemeanor and may be imprisoned for up to one year, fined up to $250,000, or both.
30 U.S.C. 820(d).

 3
2. Petitioner was the Chairman and Chief Executive
Officer of Massey Energy Company, which owned the
Upper Big Branch coal mine in Montcoal, West Virginia. Pet. App. 3a. In April 2010, the Upper Big
Branch mine was the site of the deadliest coal mine disaster in decades, a coal-dust explosion that killed 29
miners. Ibid.; see generally MSHA, U.S. Dep’t of Labor, Report of Investigation: Fatal Underground Mine
Explosion, https://arlweb.msha.gov/Fatals/2010/UBB/
FTL10c0331noappx.pdf (last visited Aug. 23, 2017).
The Upper Big Branch mine had a history of safety
problems. In 2009, for example, MSHA identified 549
regulatory violations at the mine. Pet. App. 3a. In the
15 months before the explosion, the mine was cited for
a greater number of serious violations than any other
underground coal mine, save two. Ibid.; see C.A. App.
346-347. “Many of these violations related to improper
ventilation and accumulation of combustible materials—
problems that were key contributing factors to the accident.” Pet. App. 3a.
Petitioner knew about the safety problems at Upper
Big Branch because he maintained “close supervision of
mine operations and staffing.” Pet. App. 5a. Beginning
in 2009, for example, he received “daily reports showing
the numerous citations for safety violations at the
mine.” Id. at 4a. A senior Massey safety official also
specifically warned petitioner about the serious safety
problems at Upper Big Branch and the company’s other
mines. Among other things, the safety official advised
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 “[t]he attitude at many Massey operations is ‘if you can get the footage [i.e., mine the coal],
we can pay the fines’ ” for safety violations. C.A. App.

 4
1907. As the safety official summarized, Massey “would
rather get violations, including [serious violations], than
wait for approval”—an attitude that “shows a lack of
concern for both safety and the law.” Id. at 1913.
Petitioner affirmatively encouraged that attitude.
Although he portrayed himself to MSHA and the public
as attempting to reduce safety violations, petitioner privately communicated to the Massey employee in charge
of the Upper Big Branch mine that “safety violations
were the cost of doing business” and that it was
“cheaper to break the safety laws and pay the fines than
to spend what would be necessary to follow the safety
laws.” C.A. App. 790-791; see id. at 475-476; Pet. App.
4a. Petitioner implemented that policy by directing supervisors to “focus on ‘running coal’ rather than safety
compliance and to for[]go construction of safety systems.” Pet. App. 4a (brackets omitted); see C.A. App.
1902, 1924. For example, he ordered the reopening of a
portion of the Upper Big Branch mine that lacked legally required ventilation. Pet. App. 3a-4a. When a supervisor objected, citing safety rules, petitioner admonished him for “letting MSHA run [his] coal mines.” C.A.
App. 485. On another occasion, petitioner directed the
supervisor of the mine to ignore ventilation—a critical
safety issue—to maximize production. Id. at 1924 (“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.”).
3. In 2015, a grand jury returned a superseding indictment charging petitioner with conspiring to defraud
the United States and to willfully violate mine safety

 5
standards in violation of 30 U.S.C. 820(d), making false
statements, and securities fraud. Pet. App. 5a. 1
During a six-week jury trial, the government called
numerous miners who described widespread safety violations at the Upper Big Branch mine and testified that
Massey’s safety policies were often ignored or never
communicated to miners at all. Gov’t C.A. Br. 7-8, 10.
The government also presented a variety of documentary evidence reflecting petitioner’s control of the Upper Big Branch mine, as well as petitioner’s recordings
of his conversations—including one in which he stated
that the detailed written warning from the senior Massey safety official would “be a terrible [document] to be
in discovery” if the company had a “fatal” accident.
Gov’t Supp. C.A. App. 1; see Gov’t C.A. Br. 8-10.
In addition, the government called Chris Blanchard,
the Massey employee in charge of the Upper Big Branch
mine. Pet. App. 8a. Blanchard testified that there was
“an understanding” at Massey “that a certain number of
safety violations would be written [by MSHA] that could
have been prevented” because “it was less money to pay
the fines for the safety violations than the cost of preventing all the violations.” C.A. App. 475-476. He also
Other Massey employees were also prosecuted in connection
with the Upper Big Branch explosion. A jury convicted the Upper
Big Branch security chief of making false statements and attempting to destroy documents material to an investigation. United
States v. Stover, 499 Fed. Appx. 267 (4th Cir. 2012). An Upper Big
Branch superintendent pleaded guilty to conspiring to defraud the
United States by thwarting MSHA inspectors. See May v. United
States, No. 12-cr-50, 2014 WL 427801, at *1 (S.D. W. Va. Feb. 3,
2014). And a Massey division president pleaded guilty to conspiring
to defraud the United States by thwarting MSHA inspectors and
conspiring to violate Mine Act safety standards. Plea Agreement,
United States v. Hughart, No. 12-cr-220 (S.D. W. Va. Nov. 28, 2013).
1

 6
testified that petitioner shared in and fostered that understanding. Id. at 476; see id. at 790-791. Petitioner
cross-examined Blanchard for nearly five days—longer
than the direct and redirect examinations combined—
and then sought recross-examination. Pet. App. 11a.
The district court denied the request because it concluded that the redirect examination “did not raise new
matter.” Id. at 9a.
After the close of evidence, the district court instructed the jury that a person “willfully” violates a
safety standard within the meaning of Section 820(d) if
that person acts “knowingly, purposely and voluntarily,
either in intentional disobedience of the standard or in
reckless disregard of its requirements.” Pet. App. 40a.
The court then elaborated on that standard, explaining
that “[a] person with supervisory authority at or over a
mine * * * willfully violates a mandatory mine safety
or health standard if,” among other things, “he knowingly, purposely and voluntarily takes action, or fails to
do so, with reckless disregard for whether that action
or failure to act will cause a mandatory safety or health
standard to be violated.” Id. at 41a.
The jury found petitioner guilty of conspiring to violate 30 U.S.C. 820(d) and acquitted on the remaining
charges. The district court sentenced him to one year
of imprisonment, to be followed by one year of supervised release, as well as a $250,000 fine. Pet. App. 5a;
D. Ct. Doc. 589, at 1-3, 6 (Apr. 7, 2016). 2

Petitioner began serving his sentence after the court of appeals
denied his motion for bail pending appeal. According to the Federal
Bureau of Prisons, he was released on May 10, 2017. Federal Bureau of Prisons, U.S. Dep’t of Justice, Find an Inmate, https://www.
bop.gov/inmateloc/ (last visited Aug. 23, 2017).
2

 7
4. The court of appeals affirmed. Pet. App. 1a-31a.
a. As relevant here, the court of appeals first rejected petitioner’s contention that he was entitled to
a new trial because the district court violated the
Confrontation Clause by denying his request to recrossexamine Blanchard. Pet. App. 8a-12a. The court stated
that recross-examination is required only if redirect examination raises “new matter.” Id. at 8a-9a. The court
observed that, “in reviewing whether the redirect examination [of Blanchard] raised new matter, the district
court commendably received oral argument and * * *
thoroughly reviewed the transcript of direct, cross, and
redirect and explained how each issue raised on redirect
did not constitute new matter.” Id. at 9a-10a.
The court of appeals then held that, even if the district court erred, “any such error was harmless beyond
a reasonable doubt.” Pet. App. 10a. The court explained that “all of the subjects on which [petitioner] requested recross-examination were either effectively
dealt with on cross-examination or cumulative of other
evidence introduced at trial.” Ibid. The court also
noted that the nearly five-day cross-examination afforded petitioner “an extensive opportunity to examine”
Blanchard. Id. at 11a. And the court stated that,
“[m]ost significantly, [petitioner] could have recalled
Blanchard as a witness later in the trial” had he wished
to further explore the relevant subjects. Ibid.
b. The court of appeals also rejected petitioner’s
contention that reckless disregard of mine safety requirements is insufficient to satisfy Section 820(d)’s
“willfully” element. Pet. App. 13a-28a. The court explained that this Court has instructed that “willfully” is
“a word of many meanings whose construction is often
dependent on the context in which it appears.” Id. at

 8
14a (quoting Bryan v. United States, 524 U.S. 184, 191
(1998)). The court then noted that it had “repeatedly”
held, in a variety of contexts, that “reckless disregard”
or “plain indifference” to the requirements of the law
can constitute criminal willfulness, and that “other Circuits have reached the same conclusion.” Id. at 16a; see
id. at 19a (collecting cases). And the court rejected petitioner’s contention that this Court’s decisions in
Bryan and in Safeco Insurance Co. of America v. Burr,
551 U.S. 47 (2007) (Safeco), establish a categorical rule
that a criminal willfulness requirement cannot be satisfied by reckless disregard. Pet. App. 14a-19a.
After rejecting petitioner’s contention that reckless
disregard of the law can never constitute criminal willfulness, the court of appeals held that “ ‘reckless disregard’ amounts to willfulness for purposes of Section
820(d).” Pet. App. 19a. The court noted it had previously upheld jury instructions providing that a defendant “willfully” violates a mine safety standard if he acts
“either in intentional disobedience of the safety standard or in reckless disregard of its requirements.” Ibid.
(brackets omitted) (quoting United States v. Jones, 735
F.2d 785, 789 (4th Cir.), cert. denied, 469 U.S. 918 and
469 U.S. 936 (1984)). The court added that, in “the only
[other] appellate decision interpreting the meaning of
‘willfully’ in a criminal provision of a federal mine safety
statute,” the Sixth Circuit held that a defendant was
guilty of a willful violation of a safety standard under
the predecessor provision of the Coal Act if he “either
intentionally disobeys the standard or recklessly disregards its requirements.” Ibid. (quoting United States
v. Consolidation Coal Co., 504 F.2d 1330, 1335 (1974)).
5. The court of appeals denied rehearing en banc
with no judge requesting a vote. Pet. App. 32a-33a.

 9
ARGUMENT

Petitioner renews his contentions (Pet. 19-31) that
the “willfully” element of 30 U.S.C. 820(d) requires
proof that a mine operator had actual knowledge that
his conduct violated safety standards and that the asserted error in the denial of his request for recrossexamination was not harmless. The court of appeals
correctly rejected those arguments, and its decision
does not conflict with any decision of this Court or another court of appeals. The petition for a writ of certiorari should be denied.
1. Petitioner principally contends (Pet. 19-28) that
the “willfully” element of Section 820(d) requires proof
that a mine operator actually knew that his conduct violated the law. Although petitioner acknowledges that
no court of appeals has adopted that interpretation of
Section 820(d), he asserts that this Court’s decisions in
Bryan v. United States, 524 U.S. 184 (1998), and Safeco
Insurance Co. of America v. Burr, 551 U.S. 47 (2007),
establish that a criminal willfulness requirement can
never be satisfied by anything less than actual knowledge of illegality. But Bryan and Safeco do not support
that assertion, and no court of appeals has endorsed petitioner’s understanding of those decisions. Furthermore, even if the meaning of Section 820(d)’s “willfully”
element otherwise warranted this Court’s review, this
case would not be an appropriate vehicle in which to
consider it. Petitioner was not convicted of violating
Section 820(d); he was convicted of conspiring to violate
Section 820(d). The district court separately instructed
the jury on the willfulness element of conspiracy, and
that instruction ensured that the jury found that petitioner knew that his conduct was unlawful.

 10
a. This Court has repeatedly observed that “willfully” is a “ ‘word of many meanings’ whose construction
is often dependent on the context in which it appears.”
Bryan, 524 U.S. at 191 (citation omitted); accord, e.g.,
Ratzlaf v. United States, 510 U.S. 135, 141 (1994); Spies
v. United States, 317 U.S. 492, 497 (1943).
“The word often denotes an act which is intentional,
or knowing, or voluntary, as distinguished from accidental.” United States v. Murdock, 290 U.S. 389, 394
(1933). Accordingly, “[o]ne may say, as the law does in
many contexts, that ‘willfully’ refers to consciousness of
the act but not to consciousness that the act is unlawful.” Cheek v. United States, 498 U.S. 192, 208-209
(1991) (Scalia, J., concurring in the judgment). Although that interpretation is most common in the civil
context, see Bryan, 524 U.S. at 191, this Court has also
applied it to criminal statutes. For example, the Court
has held that a statute making it a crime to “willfully
and knowingly” use a passport obtained by means of a
false statement requires only proof that the passport
was used “deliberately and with knowledge” that it was
obtained under false pretenses. Browder v. United
States, 312 U.S. 335, 341 (1941).
The more typical criminal-law meaning of “willfully”
“refers to a culpable state of mind.” Bryan, 524 U.S. at
191. This Court has thus explained that, “[a]s a general
matter, when used in the criminal context, a ‘willful’ act
is one undertaken with a ‘bad purpose.’ ” Ibid.; see, e.g.,
Heikkinen v. United States, 355 U.S. 273, 279 (1958)
(“bad purpose”); Murdock, 290 U.S. at 394 (same); Felton v. United States, 96 U.S. (6 Otto) 699, 702 (1877)
(“bad intent”). “[A] variety of phrases have been used
to describe that concept,” Bryan, 524 U.S. at 191, including an act taken “without justifiable excuse”; an act

 11
taken “stubbornly, obstinately, [or] perversely”; an act
taken “without ground for believing it is lawful”; and an
act taken with “careless disregard [to] whether or not
one has the right so to act,” Murdock, 290 U.S. at 394395; see Bryan, 524 U.S. at 191 n.12. The Court has held
that a defendant acts “willfully” in this sense if he acts
with “knowledge that the conduct is unlawful” in a general sense, even if he is not aware of the specific law
prohibiting it. Bryan, 524 U.S. at 196.
Finally, this Court has adopted a more stringent interpretation of “willfully” in the context of some tax
statutes, holding that “the jury must find that the defendant was aware of the specific provision of the tax
code that he was charged with violating.” Bryan, 524
U.S. at 194; see Ratzlaf, 510 U.S. at 138 (adopting a similar rule in the context of a prohibition on structuring
currency transactions). But the Court has applied that
more demanding construction only in the context of
“highly technical statutes that presented the danger of
ensnaring individuals engaged in apparently innocent
conduct.” Bryan, 524 U.S. at 194-195.
b. In this case, the court of appeals correctly held
that a mine operator “willfully” violates a safety standard under Section 820(d) if he either knows that his conduct violates that standard or recklessly disregards the
standard’s requirements. Pet. App. 23a. That interpretation appropriately ensures that an operator is not
held criminally liable for an innocent or careless violation, and is instead convicted of violating Section 820(d)
only if he acted with the sort of “bad purpose” or “culpable state of mind” that a criminal willfulness requirement ordinarily demands. Bryan, 524 U.S. at 191. And
that interpretation is consistent with this Court’s decisions discussing willfulness in other criminal statutes.

 12
In the criminal context, “recklessness” is a subjective standard that is satisfied only if “a person disregards a risk of harm of which he is aware.” Farmer v.
Brennan, 511 U.S. 825, 836-837 (1994); see Voisine v.
United States, 136 S. Ct. 2272, 2278 (2016). A defendant
recklessly disregards the law in that sense only if he
“ ‘consciously disregard[s]’ a substantial risk” that his
conduct violates the law. Farmer, 511 U.S. at 839
(brackets omitted) (quoting Model Penal Code § 2.02(c)
(1985)). A defendant who consciously disregards such a
risk is properly regarded as acting with “bad purpose”
or a “culpable state of mind.” Bryan, 524 U.S. at 191.
For example, in Screws v. United States, 325 U.S. 91
(1945), the Court considered a provision, now codified
at 18 U.S.C. 242, making it a crime for a person acting
under color of law to “willfully” deprive another person
of a right secured by the Constitution or laws of the
United States. The plurality concluded that a defendant acts willfully within the meaning of that provision if
he acts “in open defiance or in reckless disregard of a
constitutional requirement which has been made specific and definite.” Screws, 325 U.S. at 105 (opinion of
Douglas, J.) (emphasis added). The Court’s subsequent
decisions have treated the Screws plurality’s interpretation of Section 242 as controlling. See, e.g., United
States v. Lanier, 520 U.S. 259, 267 (1997). More
broadly, the Court has stated that an interpretation of
“willfully” that includes both knowledge of illegality and
“reckless disregard” of legal requirements is “consistent with the meaning of ‘willful’ in * * * criminal
and civil statutes.” Hazen Paper Co. v. Biggins, 507
U.S. 604, 614 (1993) (emphasis added; citation omitted);
see Trans World Airlines, Inc. v. Thurston, 469 U.S.
111, 126 (1985) (same).

 13
c. Petitioner does not address those decisions. Instead, he asserts (Pet. 19-25) that Bryan and Safeco establish, as a categorical matter, that a criminal willfulness requirement always necessitates proof that the defendant actually knew that his conduct was unlawful.
Neither Bryan nor Safeco supports that assertion.
i. In Bryan, this Court addressed 18 U.S.C.
924(a)(1)(D), which makes it a crime to “willfully” violate
certain federal firearms laws. 524 U.S. at 186-189. The
district court had instructed the jury that “a person acts
willfully if he acts intentionally and purposely and with
the intent to do something the law forbids, that is, with
the bad purpose to disobey or to disregard the law.” Id.
at 190 (citation omitted). The defendant challenged that
instruction, asserting that Section 924(a)(1)(D) required
proof that he knew about the specific legal requirement
at issue—a standard akin to the stringent interpretation
of “willfully” that the Court had applied only in the context of tax laws and in Ratzlaf. Id. at 193-195. The Court
rejected the defendant’s argument, holding that a person acts “willfully” within the meaning of Section
924(a)(1)(D) if he “knew that his conduct was unlawful”
in a general sense. Id. at 195.
In the passages on which petitioner relies (Pet. 19-20),
the Court stated that, in general, a criminal willfulness
element requires the government to “prove that the defendant acted with knowledge that his conduct was unlawful.” Bryan, 524 U.S. at 192 (citation omitted); see
id. at 195-196. But for at least three reasons, those
statements cannot be read to establish that a criminal
willfulness element can never be satisfied by reckless
disregard for a known legal requirement.

 14
First, the Court in Bryan reiterated that “willfully”
is “ ‘a word of many meanings’ whose construction is often dependent on the context in which it appears.” 524
U.S. at 191 (citation omitted). The Court also stated
that, even in the criminal context, “a variety of phrases
have been used to describe” the “culpable state of mind”
that the word “typically” connotes. Ibid. Among other
formulations, the Court reiterated Murdock’s observation that the word can mean “careless disregard” of legal requirements. Id. at 191 n.12 (quoting Murdock, 290
U.S. at 395). Contrary to petitioner’s assertion (Pet.
20), the Court thus did not purport to “establish[]” actual knowledge of illegality as the “floor” for willfulness
in all criminal contexts—much less to overrule Screws
and the other decisions recognizing that reckless disregard may qualify.
Second, the jury instruction that the Court sustained
in Bryan equated the “intent to do something the law
forbids” with “the bad purpose to disobey or to disregard the law.” 524 U.S. at 190 (emphasis added; citation
omitted). The use of the disjunctive suggests that the
instruction reaches not only those who knowingly disobey the law, but also those who view it as unnecessary
to seek to conform their behavior to the law’s requirements. See Black’s Law Dictionary 573 (10th ed. 2014)
(defining “disregard” as “[t]o ignore or treat as unimportant”).
Third, the Court’s opinion in Bryan expressly stated
that “disregard of a known legal obligation is certainly
sufficient to establish a willful violation.” 524 U.S. at
198-199; see id. at 197 (same). In making that point,
Bryan cited circuit-court decisions holding that a willfulness requirement “is satisfied by disregard of a
known legal obligation.” Id. at 196-197 & n.26 (citing

 15
Perri v. Department of the Treasury, 637 F.2d 1332,
1336 (9th Cir. 1981); Stein’s Inc. v. Blumenthal, 649
F.2d 463, 467-468 (7th Cir. 1980)). The cited decisions
did not require an intentional violation of the known obligation; instead, they held that a defendant acts “willfully” if he “understands the requirements of the law,
but knowingly fails to follow them or was indifferent to
them.” Perri, 637 F.2d at 1336 (emphasis added); see
Stein’s, 649 F.2d at 467 (requiring proof that the firearms dealer “knew of his legal obligation and purposefully disregarded or was plainly indifferent to [it]”) (citation omitted).
Consistent with that understanding, courts of appeals have held that the interpretation of “willfully” articulated in Bryan is “satisfied by a showing of, among
other things, a disregard of or an indifference to known
legal obligations.” RSM, Inc. v. Herbert, 466 F.3d 316,
321 (4th Cir. 2006); see, e.g., Article II Gun Shop, Inc.
v. Gonzales, 441 F.3d 492, 497-498 (7th Cir.) (“purposeful disregard” or “plain indifference”), cert. denied, 549
U.S. 995 (2006). Although those decisions interpreted
18 U.S.C. 923(e), a civil statute related to the provision
at issue in Bryan, they applied Bryan’s criminal-law interpretation of “willfully.” See RSM, 466 F.3d at 321
n.1; Article II Gun Shop, 441 F.3d at 497-498; see also
Pet. App. 16a n.3.
The court of appeals expressly adopted the same interpretation here. Quoting RSM, it explained that a
“long history of repeated failures, warnings, and explanations of the significance of the failures, combined with
knowledge of the legal obligations, readily amounts to

 16
willfulness” because it demonstrates “plain indifference” to the law.” Pet. App. 21a (quoting RSM, 466 F.3d
at 322); see id. at 16a-17a. 3
ii. In Safeco, this Court considered a provision of the
Fair Credit Reporting Act (FCRA) imposing civil liability on persons who “willfully” fail to comply with the
statute’s requirements. 15 U.S.C. 1681n(a). The Court
held that the “willfully” standard was satisfied by “reckless disregard” of FCRA’s requirements. Safeco, 551
U.S. at 52. In a footnote, the Court distinguished that
interpretation of “willfully” from the meaning of the
term “in the criminal law.” Id. at 57-58 n.9. Quoting
Bryan, the Court stated that the usual criminal-law
meaning of “willfully” requires a showing that the defendant acted with “bad purpose,” which the Court
equated with “knowledge that his conduct was unlawful.” Ibid. (citation omitted).
In this case, the district court instructed the jury, in accord with
Fourth Circuit precedent, that reckless disregard “means the closing of the eyes to or deliberate indifference toward the requirements of a mandatory safety standard, which standard the defendant should have known and had reason to know at the time of the
violation.” Pet. App. 40a; see United States v. Jones, 735 F.2d 785,
790 (4th Cir.), cert. denied, 469 U.S. 318 and 469 U.S. 936 (1984).
That instruction did not explicitly require a finding that petitioner
had actual knowledge of the relevant safety standards, only that he
had “reason to know” of them. But petitioner did not specifically
challenge that aspect of the instruction in the court of appeals, and
he has not sought this Court’s review of the district court’s definition of “reckless disregard”—only of the propriety of giving any
reckless disregard instruction at all. Pet. i. In any event, petitioner
has not argued, and could not plausibly argue, that he lacked actual
knowledge of the relevant safety standards. Among other things,
he received and reviewed “daily reports” of citations at the Upper
Big Branch mine that specifically identified the mine’s safety violations. Pet. App. 4a; see Gov’t C.A. Br. 5.
3

 17
The Court’s statement in Safeco did not purport to
overrule Screws or to reject Bryan’s statement that
“disregard of a known legal obligation is certainly sufficient to establish a willful violation.” 524 U.S. at 198199. And because Safeco was a civil case, the Court had
no occasion to parse the degree of proof necessary to
satisfy the Bryan standard—much less to establish a
categorical rule about the meaning of “willfully” in all
criminal statutes.
The Court’s statement instead accords with a fundamental distinction between civil and criminal “recklessness” that is not directly at issue here. Safeco described
civil recklessness “as conduct violating an objective
standard” and equated it with “gross negligence.” 551
U.S. at 58, 68 (emphasis added). “[C]riminal recklessness,” in contrast, “also requires subjective knowledge
on the part of the offender”—in this context, subjective
knowledge of the relevant legal standard. Id. at 68 n.18;
see p. 12, supra. Objective recklessness of the sort discussed in Safeco may not qualify as criminal willfulness.
But reckless disregard of a subjectively known legal
duty—which is what the court of appeals deemed sufficient here, see Pet. App. 17a, 21a—is a different matter.
iii. Petitioner asserts that the government endorsed
his understanding of Bryan and Safeco in two recent
briefs in opposition. Pet. 21-22 (citing Br. in Opp.,
Ajoku v. United States, 134 S. Ct. 1872 (2014) (No. 137264) (Ajoku Opp.); Br. in Opp., Russell v. United
States, 134 S. Ct. 1872 (2014) (No. 13-7357) (Russell
Opp.)). That is not correct.
Ajoku and Russell involved 18 U.S.C. 1035, which
prohibits “knowingly and willfully” making false statements in healthcare benefit matters. See Ajoku Opp. 7;
Russell Opp. 4. In each case, the court of appeals held

 18
that a person “knowingly and willfully” makes a false
statement in violation of Section 1035 if he makes that
statement “deliberately and with knowledge” of its falsity. Ajoku Opp. 8 (citation omitted); see Russell Opp.
5. In this Court, the government acknowledged that
those decisions were erroneous and that the “willfully”
element of Section 1035 should be interpreted to require proof that the defendant acted “with knowledge
that his conduct was unlawful.” Ajoku Opp. 10 (quoting
Bryan, 524 U.S. at 193); see Russell Opp. 6 (same).
The government thus acknowledged in Ajoku and
Russell that Bryan’s interpretation of “willfully” should
govern in the context of Section 1035, and that the
courts of appeals had erred in adopting an interpretation that did not require any awareness of the law or
other showing of “bad purpose.” But unlike this case,
Ajoku and Russell did not present any question about
whether and under what circumstances a criminal willfulness requirement may be satisfied by reckless disregard of a known legal obligation. And in any event, the
government’s concession in those cases was limited to
Section 1035 (and the materially identical language in
18 U.S.C. 1001). The government emphasized that
“ ‘willfully’ is ‘a word of many meanings’ ” and that
“[c]ontext and history may support a different interpretation of that term in other criminal statutes.” Ajoku
Opp. 15 (citation omitted); see Russell Opp. 11 (same).
d. Petitioner does not contend that the court of appeals’ decision conflicts with any decision by another
court of appeals. To the contrary, it appears that no
other circuit has considered the meaning of “willfully”
in Section 820(d). Instead, “the only [other] appellate
decision interpreting the meaning of ‘willfully’ in a criminal provision of a federal mine safety statute” is a Sixth

 19
Circuit decision interpreting Section 820(d)’s predecessor in the Coal Act. Pet. App. 19a. Consistent with the
decision below, the Sixth Circuit held that a defendant
“willfully” violates a safety standard if he “either intentionally disobeys the standard or recklessly disregards
its requirements.” United States v. Consolidation Coal
Co., 504 F.2d 1330, 1335 (1974). As the court of appeals
observed, the fact that Congress enacted Section 820(d)
against the backdrop of that judicial interpretation of a
materially identical predecessor provision supports the
court’s conclusion here that an operator acts “willfully”
under Section 820(d) if he recklessly disregards mine
safety requirements. Pet. App. 20a-21a.
Petitioner also does not identify any decision adopting his view that Bryan and Safeco establish a “floor”
that categorically requires actual knowledge of illegality to establish willfulness in the context of every criminal statute. To the contrary, he correctly acknowledges (Pet. 23-24) that “courts of appeals across the
country continue to hold in various contexts * * * that
criminal willfulness can be established without proof
that the defendant intended to act unlawfully.” The decisions petitioner cites (Pet. 24-25) interpret the willfulness requirements of particular criminal statutes in different ways, and in some contexts hold that “reckless
disregard” is sufficient. E.g., United States v. Trudeau,
812 F.3d 578, 588 (7th Cir.), cert. denied, 137 S. Ct. 566
(2016); United States v. Figueroa, 729 F.3d 267, 277 (3d
Cir. 2013), cert. denied, 134 S. Ct. 1037 (2014).
The circuit courts’ uniform failure to adopt petitioner’s one-size-fits-all approach to willfulness is consistent with this Court’s decisions giving that term different meanings in different criminal statutes. It also
accords with the Court’s admonition that the meaning

 20
of “willfully” “is often dependent on the context in which
it appears.” Bryan, 524 U.S. at 191. And petitioner’s
recognition that courts often hold that a willfulness requirement is satisfied by something less than actual
knowledge of illegality refutes his assertion (Pet. 26)
that the decision below—which was closely tied to Section 820(d)—“threatens to dramatically expand” the
scope of federal criminal liability more broadly. 4
e. Even if the meaning of Section 820(d)’s “willfully”
element otherwise warranted this Court’s review, this
case would not be a suitable vehicle for considering it.
Petitioner was not convicted of violating Section 820(d);
he was convicted of conspiring to violate Section 820(d).
Pet. App. 5a. Petitioner focuses exclusively on the district court’s instruction on the meaning of “willfully” in
the context of Section 820(d)’s substantive offense. But
the district court separately instructed the jury that it
could not convict petitioner of the charged conspiracy
unless it found that he “knowingly and willfully joined
and participated in the conspiracy.” Trial Tr. 5797
In addition to challenging the court of appeals’ conclusion that
reckless disregard for mine safety standards can satisfy Section
820(d)’s “willfully” element, petitioner also takes issue (Pet. 12-13,
16-17, 27) with other aspects of the district court’s jury instructions
elaborating on the meaning of “willfully.” Those case-specific arguments are outside the scope of the question presented, see Pet. i,
and their inclusion in the body of the petition is insufficient to preserve them for this Court’s review. Sup. Ct. R. 14.1(a); see Wood v.
Allen, 558 U.S. 290, 304 (2010). In any event, the court of appeals
correctly held that the district court’s additional instructions required the jury to find either that petitioner “knew that his actions
and omissions would lead to violations of mine safety laws and regulations,” Pet. App. 29a, or that he acted “with reckless disregard
as to whether [his] action[s] or omission[s] would lead to a violation
of mine safety laws,” id. at 27a-28a.
4

 21
(D. Ct. Doc. 626 (Nov. 17, 2015)). And the court’s instructions on the “willfully” element of the conspiracy
charge ensured that the jury found that petitioner acted
with knowledge that the object of the conspiracy was to
violate mine safety standards.
In particular, the district court instructed the jury
that “[a] defendant enters into a conspiracy knowingly
and willfully if he joins and participates in the conspiracy with knowledge of and the intent to further its unlawful object.” Trial. Tr. 5797. The court further instructed that the jury had to find that petitioner “intentionally joined the [conspiracy] knowing that one of its
objects was to willfully violate mine safety standards”
and that he “intended that willful violations of mine
safety standards be committed.” Id. at 5798 (emphasis
added). Notwithstanding the reckless-disregard language in the instructions on Section 820(d)’s substantive offense, the jury would have understood the italicized language—particularly in the context of the other
conspiracy instructions—to require it to find that petitioner intended that violations of mine safety standards
actually occur. The conspiracy instructions thus ensured that the jury found that petitioner acted with
knowledge that his conduct was unlawful.
It is not surprising that the jury made that finding.
The government’s theory throughout the trial was that
petitioner conspired with other Massey employees “to
violate the mine health and safety laws in order to run
more coal.” Trial Tr. 5822 (closing argument). The government thus argued that petitioner “was involved in an
understanding with others at Massey that he and others
knew would and did result in intentional violations of
the mine safety laws.” Id. at 5832 (emphasis added).
The government’s closing statements did not use the

 22
words “reckless disregard.” And the government’s argument that petitioner acted with knowledge that mine
safety standards would be violated was supported by
overwhelming evidence. See pp. 3-6, supra. 5
Accordingly, any error in the district court’s instruction on the underlying elements of Section 820(d) was
harmless. See United States v. McFadden, 823 F.3d
217, 224 n.2 (4th Cir. 2016) (an instructional error is
harmless if “the jury necessarily found facts that would
satisfy the omitted element”), cert. denied, 137 S. Ct.
1434 (2017). At minimum, the conspiracy overlay and
the multiple relevant willfulness instructions would
make this case a poor vehicle in which to address the
meaning of “willfully” in Section 820(d).
2. Petitioner also contends (Pet. 29-31) that the
court of appeals erred in treating his ability to recall
Chris Blanchard as one factor supporting its conclusion
that any error in the denial of his request for recrossexamination was harmless. But other courts of appeals
have likewise considered a defendant’s ability to recall
the relevant witness in finding particular denials of
recross-examination to be harmless error, and petitioner does not cite any decision treating such consideration as improper. In any event, this case would not be
Petitioner asserts (Pet. 32) that his acquittal on the falsestatement charge shows that the district court’s instruction on the
meaning of “willfully” in Section 820(d) was “dispositive.” But petitioner overlooks the court’s separate instruction on the willfulness
element of conspiracy, which ensured that the jury found that he
joined the conspiracy knowing and intending that it would lead to
violations of mine safety standards. Petitioner’s acquittal on the
false-statement charge was thus likely attributable to that charge’s
different substantive elements, not to any difference in the applicable definitions of “willfully.” Cf. Trial Tr. 5805-5808 (jury instructions on the false-statement charge).
5

 23
an appropriate vehicle in which to consider the question
presented even if it otherwise merited review.
a. The Confrontation Clause guarantees a criminal
defendant the right “to be confronted with the witnesses against him.” U.S. Const. Amend. VI. This
Court has held that a trial court may violate the Confrontation Clause if it unduly restricts a defendant’s
ability to cross-examine a government witness. See,
e.g., Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986).
But the Court has also emphasized that “trial judges retain wide latitude * * * to impose reasonable limits on
such cross-examination.” Ibid. “[T]he Confrontation
Clause guarantees an opportunity for effective crossexamination, not cross-examination that is effective in
whatever way, and to whatever extent, the defense
might wish.” Delaware v. Fensterer, 474 U.S. 15, 20
(1985) (per curiam).
In this case, the district court denied petitioner’s request to recross-examine Blanchard because it determined, after a thorough review, that “each issue raised
on redirect did not constitute new matter.” Pet. App.
10a. The court of appeals held that any Confrontation
Clause error in that determination was harmless, in
part because petitioner “could have recalled Blanchard
as a witness later in the trial.” Id. at 11a.
b. Petitioner contends (Pet. 29-31) that the court of
appeals erred in considering his ability to recall
Blanchard in its harmless-error analysis, but he does
not cite any decision holding that such consideration is
improper. In fact, other circuits have likewise relied on
a defendant’s ability to recall a witness in finding that
particular denials of recross-examination constituted
harmless error. See United States v. Ross, 33 F.3d
1507, 1518 (11th Cir. 1994) (citing Hale v. United States,

 24
435 F.2d 737, 752 n.22 (5th Cir. 1970), cert. denied, 402
U.S. 976 (1971)), cert. denied, 515 U.S. 1132 (1995); see
also, e.g., United States v. Quiel, 595 Fed. Appx. 692,
695 (9th Cir. 2014), cert. denied, 135 S. Ct. 2336 (2015).
Petitioner errs in asserting (Pet. 29-30) that the
court of appeals’ decision is inconsistent with MelendezDiaz v. Massachusetts, 557 U.S. 305 (2009). In that
case, this Court held that a trial court violated the Confrontation Clause by admitting affidavits reporting the
results of drug tests when the prosecution had not
called the analysts who prepared the affidavits. Id. at
310-311. In reaching that conclusion, the Court rejected
an argument that the Confrontation Clause was not violated because the defendant “had the ability to subpoena the analysts” himself. Id. at 324. The Court explained that the ability to subpoena a witness “is no substitute for the right of confrontation” because it is “of
no use to the defendant when the witness is unavailable
or simply refuses to appear” and because “the Confrontation Clause imposes a burden on the prosecution to
present its witnesses, not on the defendant to bring
those adverse witnesses into court.” Ibid.
This case is different. The government satisfied its
burden to “present its witnesses” by calling Blanchard
to testify, and there was thus no risk that he was “unavailable” or might “refuse[] to appear.” Melendez-Diaz,
557 U.S. at 324. Indeed, petitioner cross-examined
Blanchard for “nearly five days.” Pet. App. 11a. The
court of appeals’ identification of petitioner’s ability to
recall Blanchard as support for its determination that
any error in the denial of his request for recrossexamination was harmless is not inconsistent with

 25
Melendez-Diaz, which involved a different type of Confrontation Clause issue and which did not address
harmless-error analysis at all. See 557 U.S. at 329 n.14.
c. Even if the question presented otherwise warranted this Court’s review, this case would not be an appropriate vehicle in which to consider it because the
court of appeals’ consideration of petitioner’s ability to
recall Blanchard was not necessary to its determination
that any error was harmless. The court explained that
“all of the subjects on which [petitioner] requested
recross-examination were either effectively dealt with
on cross-examination or cumulative of other evidence
introduced at trial.” Pet. App. 10a. It also noted that
petitioner’s cross-examination afforded him “an extensive opportunity to examine Blanchard” on all relevant
issues. Id. at 11a. Petitioner presumably disagrees
with those factbound conclusions, but he does not ask
this Court to review them—and he does not explain how
the denial of recross-examination could be prejudicial
where, as here, it would have been duplicative or cumulative.
CONCLUSION

The petition for a writ of certiorari should be denied.
Respectfully submitted.
JEFFREY B. WALL
Acting Solicitor General
JEFFREY H. WOOD
Acting Assistant Attorney
General
JENNIFER SCHELLER NEUMANN
AVI KUPFER
Attorneys

AUGUST 2017