Wednesday, December 8, 2021
Donald Blankenship's efforts to undo his conviction for alleged disclosure violations fell on the deaf ears of the United States Court of Appeals for the Fourth Circuit
Following an explosion at Massey Energy Company’s Upper Big Branch coal mine in Montcoal, West Virginia, that killed 29 miners, Blankenship — who was at the time of the explosion the Chairman of the Board and CEO of Massey — was charged with and convicted of conspiring to willfully violate mandatory federal mine safety and health standards, in violation of 30 U.S.C. § 820(d) and 18 U.S.C. § 371. The trial evidence centered on the allegation that Blankenship had willfully failed to address numerous notices of mine safety violations that Massey had received, favoring coal-mine production and profits over safety.
Following the trial and in response to Blankenship’s ongoing requests, the government produced documents to Blankenship that it had not produced before trial and that it should have produced under applicable Department of Justice (“DOJ”) policies. Indeed, an internal DOJ review concluded that prosecutors in the case failed, as DOJ policies require, to “develop a process for review of pertinent information to ensure that discoverable information [was] identified.” The suppressed documents fell broadly into two categories: (1) memoranda of interviews conducted of seven Massey employees and (2) internal emails and documents of the Mine Safety and Health Administration (“MSHA”) showing, among other things, some MSHA employees’ hostility to Massey and Blankenship.
The district court, recognizing that the documents were improperly suppressed, concluded nonetheless that they were not material in that there was not a reasonable probability that they would have produced a different result had they been disclosed before trial. The court stated that “after thorough review, nothing ha[d] been presented to undermine confidence in the jury’s verdict.” It accordingly denied Blankenship’s § 2255 motion.
Having given the record a close review ourselves, we reach the same conclusion as the district court. Accordingly, we affirm.
The court on defense due diligence
when assessing the defendant’s role in preparing his defense, he should not be allowed to turn a willfully blind eye to available evidence and thus set up a Brady claim for a new trial. In this manner, we distinguish the burden of due diligence — which the defendant need not carry in asserting a Brady claim — from the common-sense notion of self-help imputable to a defendant in preparing his case. This is precisely the distinction between [prior cases] Wilson and Banks.
On the MSHA documents
We agree with the district court that the suppression of these documents and the other MSHA records did not violate Brady and Giglio. The bias of individual MSHA employees — if bias is the correct word when considering that the employees’ hostile comments were in response to the perceived lack of mine safety — could not be accepted to show agency bias unless it was shown that the employees spoke for the agency or had some responsibility in regard to Blankenship’s prosecution. But that has not been shown. Most importantly, the core issue at trial did not relate to the validity of the mine safety citations or to MSHA conduct; it focused on Blankenship’s state of mind — whether he conspired to willfully violate mine safety standards. And the evidence relevant to that issue came from (1) miners and others with factual knowledge of the conditions at the mine and (2) Massey employees and documents providing evidence relevant to Blankenship’s state of mind.
We agree with the district court that this category of documents was not material to the outcome of the trial and that their suppression therefore did not constitute a Brady violation.