Petition for Writ of Certiorari — Donald L. Blankenship, Petitioner v. United States

APPENDIX

i

APPENDIX

APPENDIX A: Opinion in the United States

Court of Appeals for the Fourth

Circuit (Dec. 7, 2021) ................... App. 1

APPENDIX B: Memorandum Opinion and

Order in the United States

District Court for the Southern

District of West Virginia

(Jan. 15, 2020) ............................ App. 22

APPENDIX C: Proposed Findings and

Recommendation of Magistrate

Judge in the United States

District Court for the Southern

District of West Virginia

(Aug. 26, 2019) ........................... App. 67

APPENDIX D: Order Denying Petition for

Rehearing en banc in the United

States Court of Appeals for the

Fourth Circuit

(Feb. 4, 2022) ............................ App. 139

APPENDIX E: Judgment Order in the United

States District Court for the

Southern District of West

Virginia

(Jan. 16, 2020) .......................... App. 140

APPENDIX F: Department of Justice, Office of

Professional Responsibility

Memorandum Regarding Report

(May 30, 2018) .......................... App. 142

APPENDIX G: Department of Justice, Office of

Professional Responsibility

Report

(May 30, 2018) .......................... App. 150

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APPENDIX H: Motion To Vacate And Set Aside

Defendant’s Conviction And

Sentence Pursuant To 28 U.S.C.

§ 2255 filed by Donald L.

Blankenship in the United

States District Court for the

Southern District of West

Virginia

(Apr. 18, 2018) .......................... App. 336

APPENDIX I: U.S. Department of Labor

Memorandum of Interview –

Charlie Bearse

(Feb. 7, 2014) ............................ App. 362

APPENDIX J: U.S. Department of Labor

Memorandum of Interview –

Mark Clemens

(Nov. 14, 2011).......................... App. 372

APPENDIX K: Federal Bureau of Investigation

Memorandum of Interview –

Sabrina Duba

(Feb. 6, 2015) ............................ App. 379

APPENDIX L: Federal Bureau of Investigation

Memorandum of Interview –

Stephanie Ojeda

(July 9, 2015) ............................ App. 389

APPENDIX M: U.S. Department of Labor

Memorandum of Interview –

Steve Sears

(Nov. 14, 2011).......................... App. 407

App. 1

______________

APPENDIX A

_______________________

United States Court of Appeals

For the Fourth Circuit

No. 20-6330

[Filed December 7, 2021]

__________________________________________

UNITED STATES OF AMERICA,

)

)

Plaintiff - Appellee,

)

)

v.

)

)

DONALD L. BLANKENSHIP,

)

)

Defendant - Appellant. )

__________________________________________)

______________

Appeal from the United States District Court

for the Southern District of West Virginia - Beckley

_______________________

Submitted: September 22, 2021

Filed: December 7, 2021

_______________________

Before NIEMEYER, DIAZ, and QUATTLEBAUM,

Circuit Judges.

_______________________

App. 2

NIEMEYER, Circuit Judge:

In this proceeding under 28 U.S.C. § 2255,

Donald Blankenship seeks to vacate his conviction for

conspiring to willfully violate coal mine safety

standards, alleging that the federal prosecutors

violated his due process rights in failing to produce

documents favorable to him before trial, in violation

of Brady v. Maryland, 373 U.S. 83 (1963) (requiring

the government to disclose exculpatory evidence), and

Giglio v. United States, 405 U.S. 150 (1972) (requiring

the government to disclose impeaching evidence).

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

App. 3

[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.

I

Before the explosion at the Upper Big Branch

mine, which occurred on April 5, 2010, Massey had

repeatedly been cited with respect to that mine for

violations of the Federal Mine Safety and Health Act

of 1977, 30 U.S.C. § 801 et seq. Indeed, in the 15

months prior to the explosion, it received the thirdmost serious safety citations of any mine in the United

States.

In November 2014, a federal grand jury

returned an indictment against Blankenship, who by

then had retired from Massey, and the grand jury’s

superseding indictment alleged that from 2008

App. 4

through April 9, 2010, Blankenship had, in connection

with the Upper Big Branch mine, conspired to

willfully violate federal mine safety and health

standards, in violation of 30 U.S.C. § 820(d) and 18

U.S.C. § 371. It also charged that Blankenship had

conspired to defraud the United States by impeding

the MSHA in the enforcement of mine safety and

health laws; had made false statements to the

Securities and Exchange Commission, in violation of

18 U.S.C. § 1001(a) and § 2; and had engaged in

securities fraud, in violation of 15 U.S.C. § 78ff, 17

C.F.R. § 240.10b-5, and 18 U.S.C. § 2.

At trial, the government’s proof focused mainly

on its allegation that Blankenship had conspired with

other Massey employees to willfully violate mine

health and safety standards in order to produce more

coal at a lower cost. It presented evidence that

Blankenship had received daily reports showing the

numerous citations for safety violations at the mine.

Bill Ross, one of Massey’s senior safety officials,

testified about his concern over the number and type

of citations that Massey had been receiving and how

his concerns had been communicated to Blankenship.

For example, in a June 2009 memorandum prepared

for Blankenship by a Massey in-house attorney,

Blankenship was advised that Ross believed that

“[t]he attitude at many Massey operations is ‘if you

can get the footage, we can pay the fines.’” The

memorandum noted further that Ross’s observation

was that the company “would rather get violations,

including unwarrantable actions, than wait for

approval” from the MSHA, which “show[ed] a lack of

concern for both safety and the law.”

App. 5

The evidence also showed that Blankenship

had fostered this lax attitude toward safety by

directing mine supervisors to focus on “running coal”

rather than complying with safety standards. In

particular, the Massey executive in charge of

managing the Upper Big Branch mine, Chris

Blanchard, testified (pursuant to a cooperation

agreement) that Blankenship had made statements to

him to the effect that “safety violations were the cost

of doing business the way he wanted it done,” taking

from his various conversations with Blankenship that

Blankenship “saw it as cheaper to break the safety

laws and pay the fines than to spend what would be

necessary to follow the safety laws.” Blanchard agreed

that Blankenship had “continually pressured” him “on

profit and costs but rarely, if ever, said anything about

the hundreds of safety law violations at [the Upper

Big Branch mine].” According to Blanchard,

Blankenship’s policy was “to invariably press for more

production even at mines that he knew were

struggling to keep up with safety laws.” Indeed, even

though Massey employees advised Blankenship that

the lack of adequate staff was a key factor in the high

number of safety violations at the Upper Big Branch

mine, Massey reduced staff there less than two

months before the accident, a decision Blankenship

would have had to approve given his close supervision

of mine operations and staffing.

In addition to the testimony of Ross and

Blanchard, the government also presented testimony

from numerous coal miners about how they were

required to work in unsafe conditions at the mine.

Blankenship’s primary defense at trial was

that none of the violations of safety standards had

App. 6

been willful. He acknowledged that he had pushed his

subordinates to increase coal production while

keeping costs down, but he maintained that the

evidence also showed that he took safety seriously and

had led a successful initiative in 2009 to cut down

citations at all the Massey mines, including the Upper

Big Branch mine. To present his defense,

Blankenship’s counsel vigorously cross-examined

both Ross and Blanchard, presenting numerous

Massey documents through them in support of his

defense. Blankenship did not, however, call any

witnesses, even though he had, in a pretrial filing,

designated several high-level Massey employees as

among those whom he might call to testify on his

behalf.

The jury, after deliberating for approximately

two weeks, convicted Blankenship of the

misdemeanor offense of conspiring to willfully violate

mine safety and health standards and acquitted him

on the remaining counts. The district court sentenced

Blankenship to 12 months’ imprisonment and

imposed a $250,000 fine.

On appeal, we affirmed the district court’s

judgment, United States v. Blankenship, 846 F.3d 663

(4th Cir. 2017), and the Supreme Court denied

Blankenship’s petition for a writ of certiorari,

Blankenship v. United States, 138 S. Ct. 315 (2017).

Following

his

conviction,

Blankenship

continued to request evidence that he believed the

government had suppressed both before and during

trial, despite his repeated requests and motions for

the evidence. The government had responded to his

earlier requests by stating that it had complied with

its discovery obligations. But in response to

App. 7

Blankenship’s post-trial requests, the United States

Attorney’s Office began providing Blankenship with

documents it had not previously produced, having by

then concluded that its earlier production of

documents had not complied with DOJ policies

governing discovery.

The documents belatedly produced fell into two

broad categories. First, the government produced

memoranda prepared by federal law enforcement

agents summarizing their interviews of seven

individuals who had been high-ranking Massey

employees during the time period charged in the

indictment (2008 to 2010). Two of these employees

were Ross and Blanchard, who testified at trial and

were cross-examined extensively, while the remaining

five — Mark Clemens, Steve Sears, Sabrina Duba,

Charlie Bearse, and Stephanie Ojeda — did not testify

at trial. Four of those five, however, had been included

on Blankenship’s pretrial witness list. Only Sears,

who had overseen Massey’s sales operation, was not.

The second category of documents produced by the

government were internal documents from the

MSHA, including emails and disciplinary records for

a few MSHA employees in connection with their

supervision of the Upper Big Branch mine. Some of

the MSHA documents contained statements by

several employees that indicated a hostility to Massey

and Blankenship.

In response to the government’s late production

of documents, Blankenship filed a § 2255 motion to

vacate his conviction, asserting that the government

had violated its obligations under Brady and Giglio by

suppressing materially favorable evidence in violation

of the Due Process Clause.

App. 8

Blankenship’s motion was initially referred to

a magistrate judge, who recommended to the district

court that the motion be granted. The district court,

however, reviewed the matter de novo and issued an

opinion and order dated January 15, 2020, denying

the motion. The court concluded that while the

documents at issue had been improperly suppressed,

Blankenship had not been prejudiced, as the

documents were not material to the outcome of the

trial. Specifically, the court concluded that the

memoranda relating to the interviews of Ross and

Blanchard were “overwhelmingly negative toward

[Blankenship], and that most of the favorable

information cited by” Blankenship in the summaries

could “only be viewed as such when taken entirely out

of context of the full documents.” The court observed

that “several statements cited by [Blankenship] as

favorable” — including Blanchard’s statements that

“Blankenship had a disdain for MSHA,” “felt MSHA

made things up,” and “viewed violations as the cost of

doing business” — “directly contradict[ed] the theory

of the case pursued by the defense team” at trial,

which was “that Blankenship was serious about

remedying violations and did not willfully break the

law or ignore violations.” And, as to the remainder of

the statements in these memoranda that Blankenship

identified as exculpatory, the court concluded, “[a]fter

careful review of the trial transcript,” that “all of the

undisclosed

allegedly

exculpatory

statements

contained in the Blanchard and Ross [interview

memoranda] were covered thoroughly and repeatedly”

in the cross-examination of those witnesses at trial.

With respect to the memoranda relating to the

interviews of the remaining five Massey employees

who did not testify at trial, the district court agreed

App. 9

with Blankenship that the memoranda suggested that

those individuals could have provided some trial

testimony that would have been favorable to him. It

noted, however, that “all but one of the witnesses were

on [Blankenship’s] trial witness list” and that they all

“occupied positions that would make them both

obvious and available sources of potential exculpatory

information.” In view of those circumstances, the

court concluded “that defense counsel’s failure to call

or interview these witnesses, if indeed they were not

interviewed by the defense, was an apparent ‘tactical

decision,’ rather than a constitutional deprivation.” In

this regard, it relied on our prior holding in United

States v. Wilson, 901 F.2d 378, 381 (4th Cir. 1990),

that a Brady violation is not shown when the

“exculpatory information is not only available to the

defendant but also lies in a source where a reasonable

defendant would have looked.” The court also

observed that “most of the favorable substance of

these [interview memoranda] was brought out as

evidence during the trial,” making the statements

“cumulative, at best.”

Finally, with respect to the internal MSHA

records, the court concluded that they “were not

material, because there was no reasonable probability

that the evidence could have had an impact on the

verdict.” Blankenship had argued that the

undisclosed MSHA records “could have been used to

demonstrate that (1) MSHA citations did not reflect

actual violations; (2) [there was] MSHA bias and

contempt toward Massey and Blankenship; (3) it was

not clear that Massey’s practices related to advance

notice to [miners that inspectors had arrived at the

site] were actually illegal; and (4) several MSHA

supervisors were disciplined by the agency for

App. 10

inadequate supervision over [the Upper Big Branch

mine] — particularly [with respect to the mine’s]

approved ventilation plans.” The court noted,

however, that pursuant to its pretrial rulings,

evidence relating to unsubstantiated citations, the

legality of Massey’s advance notice practices, and

improper MSHA ventilation plans was not admissible

at trial. In particular, the court explained that the

MSHA citations had been admitted “only to show

Blankenship’s knowledge or intent relative to safety

issues, as opposed to evidence of actual safety law

violations” and that the jury had been instructed at

least twice that the citations could not be used to

establish violations of safety laws. As for the MSHA

emails showing employee hostility to Blankenship

and Massey, the court noted that “[e]mails tending to

show bias on behalf of individual MSHA employees

[did] not necessarily substantiate a claim that the

agency itself was biased.” Moreover, the court

observed, the materiality “inquiry must be

undertaken in light of the entire record,” and “the

evidence presented against [Blankenship] was

substantial.” “The core evidence regarding safety

violations was not MSHA citations,” the court

explained, “but testimony from miners and others

with direct, firsthand knowledge of conditions in the

mine.” At bottom, the court concluded that

Blankenship had “failed to meet his burden to

establish that a reasonable probability exist[ed] that

the outcome of the trial might have been different had

the suppressed evidence been disclosed prior to trial.”

By order dated October 23, 2020, we granted

Blankenship’s request for a certificate of appealability

on the issue of whether the government violated

Brady and Giglio.

App. 11

II

Due process requires that in a criminal

prosecution, the government must disclose to the

defendant evidence favorable to him if the

suppression of that evidence would deny him a fair

trial. “Society wins not only when the guilty are

convicted but when criminal trials are fair; our system

of the administration of justice suffers when any

accused is treated unfairly.” Brady v. Maryland, 373

U.S. 83, 87 (1963). The Court in Brady held that the

prosecution’s suppression of evidence that is favorable

to the accused “violates due process where the

evidence is material either to guilt or to punishment,

irrespective of the good faith or bad faith of the

prosecution.” Id. And evidence favorable to the

defendant includes not only exculpatory evidence but

also evidence that the defendant can use to impeach

government witnesses. See Giglio v. United States,

405 U.S. 150, 153–54 (1972); United States v. Bagley,

473 U.S. 667, 676 (1985). Just as the Brady rule does

not depend on the good faith, vel non, of the

prosecutor, it also is not limited to evidence known

only to the prosecutor. Thus, the obligation applies to

“evidence known only to police investigators and not

to the prosecutor.” Kyles v. Whitley, 514 U.S. 419, 438

(1995).

Nonetheless, “the Constitution is not violated

every time the government fails or chooses not to

disclose evidence that might prove helpful to the

defense.” Id. at 436–37. Rather, the suppressed

evidence must be materially favorable to the accused

— that is, the nondisclosure must be “so serious that

there is a reasonable probability that the suppressed

evidence would have produced a different verdict.”

App. 12

Strickler v. Greene, 527 U.S. 263, 281 (1999). Stated

otherwise, the question is whether “the favorable

evidence,” “considered collectively,” “could reasonably

be taken to put the whole case in such a different light

as to undermine confidence in the verdict.” Kyles, 514

U.S. at 435–36 (emphasis added).

With these governing principles in hand, we

now turn to the two categories of documents at issue

to determine whether they were favorable to

Blankenship and whether there is a reasonable

probability that their disclosure would have produced

a different result — i.e., whether Blankenship was

prejudiced by their suppression.

A

With respect to the suppressed memoranda

relating to the interviews of seven Massey employees,

several described interviews with Ross and

Blanchard, who testified at trial. Blankenship

acknowledges on appeal that “[t]he District Court was

correct in finding that the substance of [the]

undisclosed exculpatory statements” made by Ross

and Blanchard in their pretrial interviews “was

covered” during defense counsel’s thorough crossexamination of these witnesses at trial and therefore

that “these nondisclosures were not ultimately

violations of Brady.”

With respect to the memoranda relating to the

pretrial interviews of the remaining five Massey

employees, it is significant that these employees held

executive or administrative positions at Massey that

placed them in close contact with Blankenship during

the relevant period. Mark Clemens was Senior Vice

President of Operations for Massey Coal Services and

App. 13

reported directly to Blankenship; Steve Sears oversaw

the company’s sales operation and reported on an

informal basis to Blankenship; Sabrina Duba was a

senior

accountant

who

communicated

with

Blankenship on a daily basis; Charlie Bearse was

responsible for a group of mines and communicated

regularly with Blankenship; and Stephanie Ojeda was

the in-house lawyer who prepared the June 2009

memorandum for Blankenship that summarized

Ross’s safety concerns.

The statements in these interview memoranda

that might have been helpful to Blankenship’s defense

generally pertained to things that Blankenship

himself had said or done with respect to safety or to

the employees’ overall perception of the company’s

commitment to safety. Clemens, for example, stated

generally that “there was pressure at Massey to run

coal, but not enough pressure to overlook safety” and

that he had “initiated a non-fatal days lost (NFDL)

audit” at Blankenship’s direction after MSHA found

that not all accidents were being reported. Sears

stated that “Massey’s primary focus was safety” and

that “Blankenship [had] started a safety program . . .

and pushed safety more than any other CEO in the

industry.” Duba helped develop the format for the

daily violation report that Blankenship received and

stated that Blankenship “wanted to know” the

identities of “the repeat offenders.” Bearse

acknowledged that the mines he supervised

“receiv[ed] a lot of citations” but stated that “[t]he

[i]ntent was always zero violations” and that “he could

make a list of safety things that he was involved with”

and that “the list would be half” as long without

Blankenship’s involvement. Bearse also stated that

Massey’s staffing on mine sections “was the industry

App. 14

standard” and that while “Blankenship was very

aggressive and in your face,” “safety was implied.”

Ojeda, who had been interviewed by Blankenship’s

counsel a few weeks before her interview with the

government agents, stated that Blankenship “seemed

to think that Ross was legitimate” and that she

thought he was “looking for solutions from Ross.”

It is apparent that each of these five witnesses

held high positions in Massey and, from those

positions, interacted closely with Blankenship, indeed

engaging with him on some of the very issues raised

in his prosecution. Blankenship knew what he had

told them and asked them to do, and undoubtedly he

also had a sense of their views about the company’s

approach to safety. Indeed, he listed four of the five

individuals as potential witnesses to testify on his

behalf in his pretrial witness list, surely knowing how

they might help his case.

These facts do not describe a circumstance

where Blankenship was required to “scavenge for

hints of undisclosed Brady material” or which

amounted to a hide-and-seek process in which

Blankenship was the seeker. Banks v. Dretke, 540

U.S. 668, 695–96 (2004). Rather, the information was

in Blankenship’s own house and held by in-house

witnesses close to him. At the very least, he knew of

the availability of this type of information and where

to find it. Its location was surely where he would first

look — indeed, probably did look. This circumstance

therefore is governed by our holding in Wilson that

“where the exculpatory information is not only

available to the defendant but also lies in a source

where a reasonable defendant would have looked, a

App. 15

defendant is not entitled to the benefit of the Brady

doctrine.” 901 F.2d at 381.

Blankenship contends that Wilson is no longer

good law in light of the Supreme Court’s subsequent

decision in Banks, even though we have continued to

apply Wilson following Banks. See, e.g., United States

v. Parker, 790 F.3d 550, 561–62 (4th Cir. 2015);

United States v. Catone, 769 F.3d 866, 872 (4th Cir.

2014); Lovitt v. True, 403 F.3d 171, 184 (4th Cir.

2005). Wilson and Banks, however, control two

entirely different circumstances. In Banks, the State

suppressed information that a key government

witness had set up the defendant’s arrest and had

served as a paid police informant. 540 U.S. at 678–84.

Moreover, the State covered up the paid-policeinformant fact during trial by failing to correct the

witness’s false testimony that he was not a paid

informant. Id. In the postconviction proceeding, the

State nonetheless argued that the defendant had

failed to use “appropriate diligence in pursuing” his

Brady claim, faulting him for failing to discover the

suppressed facts earlier. Id. at 695. The Supreme

Court rejected this argument, explaining that its

“decisions lend no support to the notion that

defendants must scavenge for hints of undisclosed

Brady material when the prosecution represents that

all such material has been disclosed.” Id. It

characterized the State’s argument as essentially

being “that ‘the prosecution can lie and conceal and

the prisoner still has the burden to . . . discover the

evidence,’ so long as the ‘potential existence’ of a

prosecutorial misconduct claim might have been

detected.” Id. at 696 (citation omitted). And it

admonished that a rule “declaring ‘prosecutor may

hide, defendant must seek,’ is not tenable in a system

App. 16

constitutionally bound to accord defendants due

process.” Id.

The circumstances in Banks in no way describe

those here. To obtain access to the testimony of

individuals who had once been his own employees,

Blankenship would not have been required to

scavenge, guess, search, or seek. He had the evidence

before him and undoubtedly was aware of it, as he

indicated his choice to use the very same employees as

his own witnesses at trial. This case instead falls

squarely under the principle that the Brady doctrine

is not available where the favorable information is

available to the defendant and lies in a source where

a reasonable defendant would have looked. See

Wilson, 901 F.2d at 381.

To be clear, the government’s need to comply

with its Brady obligations is not obviated by the

defendant’s lack of due diligence. The constitutional

right cannot be so burdened. It is, after all, the

fairness that inheres in the fulfillment of the

government’s Brady obligations that must be satisfied

— the fairness of disclosing to the defendant evidence

favorable to him — and the government cannot ignore

fundamental fairness concerns by arguing that the

defendant failed to find evidence that the government

did not disclose. The government’s role is grander

than serving as an advocate solely for conviction; it

must be an advocate for the just outcome of a criminal

prosecution. See Berger v. United States, 295 U.S. 78,

88 (1935) (noting that the government’s “interest . . .

in a criminal prosecution is not that it shall win a case,

but that justice shall be done”).

Yet, while that precept is overriding, common

sense should not be ignored. Thus, when assessing the

App. 17

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 Wilson and Banks.

In this case, the district court also

appropriately noted the lack of materiality where

Blankenship was able to elicit most of the favorable

substance of the statements in the interview

memoranda through the cross-examination of Ross

and Blanchard and then decided, as a matter of

strategy, not to call any witnesses to testify.

Blankenship’s lead counsel even highlighted this

point during closing arguments, noting that he had

told the jury in his opening statement “that it might

take us a while to put on the evidence that indicated

that Massey did not want citations. I didn’t realize

that we were going to do it with the Government’s key

witness,” i.e., Blanchard. (Emphasis added).

We conclude accordingly that the suppression

of the interview memoranda for Ross, Blanchard, and

the five potential defense witnesses did not prejudice

Blankenship.

B

With respect to the internal MSHA documents

that were suppressed — consisting primarily of emails

between and among agency employees and

disciplinary records for three MSHA employees that

stemmed from an internal agency review conducted

App. 18

after the Upper Big Branch mine explosion —

Blankenship contends that they should have been

produced under Brady and Giglio to allow him to

demonstrate, most notably, that the MSHA was

biased against him and Massey.

One document in this category was generated

before the explosion. When an MSHA public affairs

employee circulated to other MSHA employees a

Massey press release noting that two Massey mines

were receiving a safety award from the MSHA, one

employee wrote to another, “This won’t play well with

certain parties.” All the other “bias” documents were

dated after the fatal explosion and indicated that

certain MSHA employees viewed Blankenship or

Massey negatively. For instance, about two weeks

after the explosion, one MSHA official commented

that a “hazard complaint news release” that the

agency was preparing to release should “put a dagger

into massey” by noting a complaint that the MSHA

had received at another Massey mine “even after the

explosion.” This “dagger” comment appears to have

prompted the head of the MSHA to warn in response

that the news release was “about presenting the facts

to the public in a responsible way.” Several months

later, when an MSHA employee forwarded to a

colleague an article with the title “Don Blankenship

Is an Evil Bastard,” the colleague joked that it

appeared that the other employee had written the

title. About a year later, when news circulated in

December 2011 that Blankenship intended to start a

new coal company, an employee at MSHA lamented

that “[t]he Grinch that stole safety is back.” And, in

the most vivid exchange, one MSHA employee used

graphic and violent language to discuss his vehement

dislike of Blankenship after Blankenship, who at the

App. 19

time was still the head of Massey, was quoted in the

news as saying that the fatal explosion had

“impact[ed] production in that people [were] trying to

make sure they’re in compliance with every rule.” The

employee wrote that he “hope[d] that [Blankenship] .

. . get[s] raped by a rhinoceros. Horn end.”

These records were indeed unflattering to the

MSHA and undoubtedly could be used to show

hostility of the particular employees involved. But it

does not follow that they were material to

Blankenship’s prosecution for conspiracy to willfully

violate mine safety and health standards. First, none

of the MSHA employees who wrote the “bias” emails

testified at Blankenship’s trial, nor were any of them

proffered as witnesses or even — as far as we can tell

— mentioned in the lengthy proceeding. There is also

no indication that any of these MSHA employees had

any involvement in the decision by the United States

Attorney’s Office to charge Blankenship with criminal

offenses. In these circumstances, it is far from clear

how Blankenship would have been able to introduce

these documents into evidence at trial or even use

them to discover admissible evidence. See Wood v.

Bartholomew, 516 U.S. 1, 6 (1995) (inadmissible

evidence “could have had no direct effect on the

outcome of trial” for Brady purposes).

Blankenship’s theory appears to be that the

records would have been admissible to show that the

MSHA as an agency was biased against him. But the

district court rejected the argument, stating that

“[e]mails tending to show bias on behalf of individual

MSHA employees do[] not necessarily substantiate a

claim that the agency itself was biased against

[Blankenship] or Massey.” Moreover, even if

App. 20

Blankenship were somehow able to introduce the

records into evidence, they may well have done his

defense more harm than good, as the records

themselves generally indicated that the reason

certain MSHA employees were hostile to Blankenship

was because they perceived him as being reckless with

regard to mine safety.

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. See

Bagley, 473 U.S. at 682.

*

*

*

App. 21

The circumstances that have brought us to this

point in the prosecution of Blankenship are not

flattering to the government, and Blankenship’s

protest is not a frivolous one. Nonetheless, after a

careful review, we conclude that the suppression at

issue — both with respect to the individual categories

of documents and when they are considered

cumulatively — does not undermine confidence in the

verdict. The verdict that Blankenship conspired to

willfully violate mandatory mine standards was

supported by ample evidence, and there is not a

reasonable probability that the jury’s conclusion

would have been altered by the documents’ disclosure.

The district court’s order denying Blankenship’s §

2255 motion is accordingly

AFFIRMED.

App. 22

______________

APPENDIX B

_______________________

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF

WEST VIRGINIA

BECKLEY DIVISION

CIVIL ACTION NO. 5:18-cv-00591

(Criminal No. 5:14-cr-00244)

Judge Irene C. Berger

[Filed January 15, 2020]

____________________________________

DONALD L. BLANKENSHIP,

)

)

Movant,

)

)

v.

)

)

UNITED STATES OF AMERICA,

)

)

Respondent.

)

____________________________________)

MEMORANDUM OPINION AND ORDER

On April 18, 2018, the Movant filed a motion

pursuant to 28 U.S.C. § 2255, alleging that his

conviction should be overturned due to violations of

his constitutional rights. By Standing Order

(Document 665) entered on April 20, 2018, the matter

was referred to the Honorable Omar J. Aboulhosn,

United States Magistrate Judge, for submission to

App. 23

this Court of proposed findings of fact and

recommendation for disposition, pursuant to 28

U.S.C. § 636(b)(1)(B). The Court has reviewed the

Magistrate

Judge’s

Proposed Findings and

Recommendation (PF&R) (Document 736), to which

no objections have been filed, and has reviewed the

various underlying motions as well as the attendant

briefing.

On March 10, 2015, the Movant was charged in

a three-count superseding indictment with (1)

conspiring to willfully violate mandatory federal mine

safety and health standards at Massey Energy

Company’s (Massey) Upper Big Branch-South mine

(UBB), in violation of 30 U.S.C. § 820(d) and 18 U.S.C.

§ 371, and to defraud the United States by impeding

the Mine Safety and Health Administration (MSHA)

in the administration and enforcement of mine safety

and health laws at UBB, (2) making false statements

to the Securities and Exchange Commission in

violation of 18 U.S.C. § 1001 and 18 U.S.C. § 2 and (3)

making false and fraudulent statements in connection

with the sale or purchase of securities in violation of

15 U.S.C. § 78ff, 18 U.S.C. § 2, and 17 C.F.R. §

240.10b-5. (Document 170 at 34−41.)

Following a 36-day jury trial, the Movant was

found guilty of conspiracy to violate Mine Safety

regulations, in violation of 30 U.S.C. § 820(d) and 18

U.S.C. § 371, as charged in Count One of the

Superseding Indictment, and was acquitted on the

remaining two counts. (Documents 529, 553.) On April

6, 2016, the Movant was sentenced to twelve months

of imprisonment, a one-year term of supervised

release, a fine of $250,000, and a special assessment

of $25. (Document 589.)

App. 24

On April 7, 2016, the Movant filed a Notice of

Appeal to the United States Court of Appeals for the

Fourth Circuit (hereinafter, “Fourth Circuit”) seeking

relief from his conviction and sentence on the grounds

that this Court: (1) erroneously concluded that the

superseding indictment sufficiently alleged a

violation of Section 820(d), (2) improperly denied

Defendant the opportunity to engage in re-cross

examination of Chris Blanchard, an alleged coconspirator, (3) incorrectly instructed the jury

regarding the meaning of “willfully” in 30 U.S.C. §

820(d), which makes it a misdemeanor for a mine

operator to “willfully” violate federal mine safety laws

and regulations and (4) incorrectly instructed the jury

as to the United States’ burden of proof. (Documents

591, 647 at 5−6.) On January 19, 2017, the Fourth

Circuit affirmed the decision of this Court, finding no

reversible error. United States v. Blankenship, 846

F.3d 663 (4th Cir. 2017).

The Movant then petitioned the United States

Supreme Court for certiorari, arguing that this Court

incorrectly instructed the jury regarding the meaning

of the term “willfully,” and improperly denied re-cross

examination of Mr. Blanchard. On October 10, 2017,

the Supreme Court denied certiorari. Blankenship v.

United States, 138 S.Ct. 315 (2017).

On April 18, 2018, the Movant filed this Motion

to Vacate and Set Aside Defendant’s Conviction and

Sentence Pursuant to 28 U.S.C. § 2255, arguing that

his sentence and conviction should be vacated on the

following grounds: (1) the United States suppressed

material exculpatory and/or impeachment evidence in

violation of Brady v. Maryland and Giglio v. United

States, (2) the United States suppressed evidence in

App. 25

violation of the Jencks Act and Rule 26.2 of the

Federal Rules of Criminal Procedure and (3)

prosecutorial misconduct denied Movant due process

and a fair trial, in violation of the Fifth Amendment.

(Document 663 at 10−19.)

On June 6, 2018, the United States Attorney’s

Office for the Southern District of West Virginia filed

a Notice of Recusal, recusing itself from defending the

Section 2255 motion filed by the Movant. (Document

672.) Due to the recusal, the United States Attorney

for the Southern District of Ohio was ultimately

assigned to represent the United States in this

matter. Id.

Following an extension of time, the Movant

filed a Memorandum in Support of Motion to Vacate

Conviction Pursuant to 28 U.S.C. § 2255 (Document

703) on September 5, 2018, and on September 6, 2018,

filed an Amended Memorandum in Support of Motion

to Vacate Conviction Pursuant to 28 U.S.C. § 2255

(Document 705). The Movant also filed a Motion for

Oral Argument (Document 733) and a Motion for

Evidentiary Hearing (Document 704-1), arguing that

if the § 2255 petition for relief was not granted, then

an evidentiary hearing would be needed to resolve

factual issues. On November 16, 2018, the United

States filed the Government’s Consolidated Response

in Opposition to Defendant’s Motion to Vacate Under

28 U.S.C. § 2255 and Defendant’s Request for

Evidentiary Hearing (Document 728) and on

November 30, 2018, the Movant filed his Consolidated

Reply to Government’s Consolidated Response in

Opposition to Motion to Vacate Under 28 U.S.C. §

2255 and Motion for Evidentiary Hearing (Document

731).

App. 26

On August 26, 2019, the Magistrate Judge filed

the PF&R. The Court has reviewed the Magistrate

Judge’s PF&R, to which no objections have been filed,

under a de novo standard of review. After careful

consideration and for the reasons stated herein, the

Court finds that the findings and conclusions of the

PF&R should be rejected.

STANDARD OF REVIEW

Pursuant to 28 U.S.C. § 636, the district court

reviews the magistrate judge’s proposed findings and

recommendations regarding a petition for posttrial

relief made by individuals convicted of criminal

offenses or petitions challenging conditions of

confinement. 28 U.S.C. § 636(b)(1)(B) and (C). If no

objections are filed, the district judge “may accept

reject or modify, in whole or in part, the findings or

recommendations made by the magistrate judge.” 28

U.S.C. § 636(b)(1); Thomas, 474 U.S. at 150, 153;

Nettles v. Wainwright, 667 F.2d 404, 409 (5th Cir.

1982), overruled on other grounds by Douglass v.

United Servs. Auto. Ass’n, 79 F.3d 1415 (5th Cir.

1996) (noting that the district court “has the duty to

conduct a careful and complete review” when deciding

whether to accept, reject, or modify the magistrate

judge’s recommendations); see also Williams v.

Wainwright, 681 F.2d 732, 732 (11th Cir. 1982) (citing

Louis v. Blackburn, 630 F.2d 1105 (5th Cir. 1980)).

“The district judge has jurisdiction over the case at all

times,” and “retains full authority to decide whether

to refer a case to the magistrate, to review the

magistrate’s report, and to enter judgment.” Thomas,

474 U.S. at 154. “Moreover, while the statute does not

require the judge to review an issue de novo if no

objections are filed, it does not preclude further review

App. 27

by the district judge, sua sponte or at the request of a

party, under a de novo or any other standard.” Id.

FACTS

The Movant is the former chairman and chief

executive officer of Massey. In 2009 and 2010, MSHA

issued numerous citations to Massey for violating

requirements of the Mine Safety and Health Act of

1977, 30 U.S.C. § 801 et seq. At trial, the United

States introduced testimony to show that Massey was

issued the most citations for safety violations in the

country during the indictment period, including some

of the most serious safety violations. The United

States presented evidence at trial that the Movant

conspired to violate mine safety laws by prioritizing

coal production over mine safety.

The evidence presented included cheating on

dust samples, advance warning of visits by mine

inspectors, lack of adequate staff, concealing safety

warnings as confidential, and testimony from

numerous coal miners demonstrating that they were

required to work in unsafe conditions or conditions

with inadequate ventilation. The United States

presented further evidence that the Movant was

aware of the violations at UBB mine in the years

leading up to a deadly explosion and received daily

reports showing numerous citations for safety

violations at the mine and warnings from a Massey

safety official about the serious risks posed by

violations at UBB.

Following a six-week jury trial involving

lengthy deliberations, the Movant was ultimately

convicted of the misdemeanor offense of conspiring to

violate mine safety laws and acquitted of the

App. 28

remaining felony offenses. Prior to returning a

verdict, the jury deliberated for approximately two

weeks, twice informed the Court that they could not

agree on a verdict and received an Allen charge from

the Court.

The Movant notes that the charges against him

were “vigorously contested” and “his attorney served

numerous formal and informal demands for discovery

on the prosecution team.” (Document 663, at 1.)

Throughout

pre-trial,

trial,

and

appellate

proceedings, the defense team made several informal

and formal requests—including six motions filed with

this Court—seeking the disclosure of Brady material

from the prosecution, along with several other

motions regarding discovery.1 In response, the United

States asserted that it had complied with all discovery

requests, including all Court orders regarding Brady

Motions filed with this Court seeking exculpatory material

include: Motion to Enforce the Government’s Brady Obligations

(Document 111); Defense Motion to Compel the Government to

Identify in its Production Brady and Rule 16(a)(1) Material

(Document 245); Motion to Compel Production of Witness

Interview Notes and Records of Attorney Proffers Containing

Brady Information (May 6, 2015) (Document 248); Motion to

Compel Production of MSHA Material (Document 261); Motion

to Compel Compliance with Brady Order and for Other

Appropriate Relief (Document 283); Motion to Compel MSHA to

Comply with Subpoena Duces Tecum (Document 377) and

Motion to Compel Compliance with Subpoena, for Production of

Brady, Rule 16, and Jencks Material, and for Evidentiary

Hearing (Document 481). The defense counsel notes that in

addition to the listed motions, it also sent a number of

communications directly to the United States Attorney’s Office

seeking the same material.

1

App. 29

obligations.2 The Court reviewed the motions

submitted by the Movant, and issued several orders

regarding the prosecution’s discovery obligations.3

Following the Movant’s conviction, he

continued to request evidence believed to have been

suppressed by the United States. In 2017, the United

States Attorney’s Office began sending the Movant

previously suppressed materials.

See, e.g., United States’ Response to Defendant’s Motion No. 19,

Motion to Enforce the Government’s Brady Obligations

(Document 133); United States’ Response to Defense Motion to

Compel Concerning Brady and Rule 16 (Document 246); United

States’ Response to Defendant’s Motion to Compel Production of

Witness Interview Notes and Records of Attorney Proffers

Containing Brady Information (Document 251); United States’

Response to Defendant’s Motion to Compel Production of MSHA

Material (Document 273); United States’ Combined Motion for

Production of Reciprocal Discovery and Response to Defendant’s

Motion to Compel Compliance with Brady Order and Other

Appropriate Relief (Document 284); Response to Motion to

Compel MSHA to Comply with Subpoena Duces Tecum

(Document 388) and United States’ Response to Defendant’s

Motion to Compel Compliance with Subpoena, for Production of

Brady, Rule 16, and Jencks Material, and For Evidentiary

Hearing (Document 496).

2

Document 222 (denying Defendant’s Motion to Enforce the

Government’s Brady Obligations (Document 111) as

premature.); Document 279 (granting in part and denying in part

defendant’s motions for Brady disclosures); Document 295

(denying Defendant’s motion to Compel Compliance with Brady

Order and for Other Appropriate Relief (Document 283));

Document 358 (granting Defendant’s request for a Rule 17(c)

subpoena duces tecum to be served on MSHA); Document 551

(denying the motion to compel compliance with subpoena, for

production of Brady, Rule 16, and Jencks Material, and for

Evidentiary Hearing (Document 481)).

3

App. 30

The facts underlying the Movant’s claims are

undisputed. Prior to trial, the United States failed to

produce numerous documents to the Movant. The

undisclosed documents include sixty-one Memoranda

of Interviews (MOIs) authored by law enforcement

agents. Eleven of the MOIs pertain to pre-indictment

interviews and fifty pertain to post-indictment

interviews. Ten of the undisclosed MOIs pertain to

two of the United States’ main witnesses, Chris

Blanchard and Bill Ross. In addition, the United

States Attorney’s Office produced the contents of a

previously undisclosed attorney proffer by Chris

Adkins, former Chief Operating Officer at Massey and

Mr. Blanchard’s immediate supervisor.

The United States also failed to produce MSHA

material prior to trial. This material includes 48

MSHA emails, twenty-one pages of disciplinary

records for MSHA employees in connection with UBB

and a number of miscellaneous emails and records

related to MSHA employee performance. On July 30,

2018, the United States Attorney’s Office produced

dozens of MSHA and Department of Labor (DOL)

records subject to a protective order. In August 2018,

that office produced four additional documents

previously withheld in whole or in part based on

attorney-client privilege.

ARGUMENT

Based on these previously undisclosed

documents, the Movant claims that his sentence and

conviction should be vacated on the following grounds:

(1) the United States suppressed material exculpatory

and/or impeachment evidence in violation of Brady v.

Maryland and Giglio v. United States; (2) the United

States suppressed evidence in violation of the Jencks

App. 31

Act and Rule 26.2 of the Federal Rules of Criminal

Procedure and (3) the United States violated the

District Court’s Orders regarding discovery thereby

committing prosecutorial misconduct, depriving

Movant of his constitutional right to due process and

a fair trial. (Document 663 at 10−19.)

First, the Movant argues that the prosecution

violated Brady v. Maryland and Giglio v. United

States by suppressing evidence that was both

exculpatory and/or impeaching. In particular, the

Movant claims that nondisclosure of the MOIs from

the United States’ two main witnesses, Blanchard and

Ross, impeded the ability to conduct efficient, targeted

cross-examination of the witnesses. The Movant

claims that material contained in suppressed MOIs

for Blanchard would show that MSHA inspectors

would write citations to Massey that were both

illegitimate and biased, that Massey did not want

cheating on the respirable dust samples, and that

MSHA was responsible for decisions that ended up

endangering the health and safety of miners.

For Ross, the Movant argues that undisclosed

MOIs would reveal that the UBB mine was set up to

fail based on the ventilation system [a non-belt air

system] MSHA forced the UBB mine to use. According

to him, the Ross MOI would pair with other withheld

MSHA materials to reveal that MSHA recognized

deficiencies in its handling of the UBB ventilation

plan. The Movant further argues that the withheld

material would negate the United States’ portrayal of

Ross as a whistleblower.

The Movant also argues that MOIs for five

other potential witnesses—Sabrina Duba, Charlie

Bearse, Stephanie Ojeda, Steve Sears, and Mark

App. 32

Clemens4—all of whom were former Massey

employees, were never disclosed and contained

exculpatory and impeachment material that could

have helped his defense. The Movant argues that

statements these witnesses provided in their MOIs

contradicted the United States’ theory that he pushed

production over safety and failed to budget sufficient

funds to hire more safety personnel, which he claims

was perhaps the single most important issue at trial.

The Movant also notes that, “[t]hese witnesses were

all employees whose roles gave them more insight

than many of the witnesses who ultimately testified.”

(Document 709, at 18.) Additionally, the Movant

argues that an attorney proffer for Chris Adkins,

former Chief Operating Officer for Massey Energy

and Blanchard’s immediate supervisor, was

undisclosed.

The Movant further argues that MSHA turned

over dozens of exculpatory and impeaching documents

that could demonstrate: (1) MSHA issued

unsubstantiated violations to UBB, (2) MSHA had

animus/contempt toward the Movant and Massey, (3)

MSHA itself was conflicted as to whether Massey’s

practices involving advance notice actually violated

regulations, (4) MSHA’s role in violations at UBB,

including MSHA requiring an inadequate ventilation

plan at UBB, and (5) disparity in government

treatment of Blankenship (criminal prosecution) and

MSHA employees responsible for UBB’s mine safety

(slap on wrist). The Movant essentially argues that

withheld MSHA materials would show that the

The Movant originally listed Frampton and Williams as

additional witnesses, however, in later filings it appears that

these witnesses were abandoned. Therefore, the Court will not

address the Frampton or the Williams MOIs.

4

App. 33

citations could not form the basis for a conviction to

“willfully” violate mine safety laws.

Second, the Movant argues that suppression of

evidence constituted a violation of the Jencks Act and

Rule 26.2 of the Federal Rules of Criminal Procedure

because some of the MOIs contained statements made

by witnesses who testified at trial, including MOIs for

Ross, Blanchard, and Lafferty. The Movant argues

that his sentence and conviction must be vacated,

since some of the excluded evidence was central to the

United States’ case.

Third, the Movant argues that his

constitutional right to a fair trial was violated because

the

United

States

committed

prosecutorial

misconduct by failing to comply with both this Court’s

Order requiring the prosecution to turn over any

known Brady material (Document 279) and this

Court’s order granting the request for a Rule 17(c)

subpoena duces tecum to be served on MSHA

(Document 358). The Movant argues that the

prosecutors not only failed to disclose information

pursuant to the Rule 17(c) subpoena and this Court’s

order regarding the production and identification of

Brady material, but also misrepresented the United

States’ compliance with both obligations in court

filings and oral arguments. The Movant argues that

these violations were of such magnitude as to

undermine confidence in the verdict and deprive him

of his constitutional right to due process and a fair

trial. Thus, he argues that vacating his sentence and

conviction is warranted in this case.

On August 26, 2019, the Magistrate Judge

issued a PF&R recommending that this Court grant

the Movant’s motion pursuant to 28 U.S.C. § 2255 to

App. 34

vacate, set aside or correct sentence by a person in

federal custody. Because the United States concedes

that the materials at issue were suppressed, the

Magistrate Judge conducted his analysis as follows:

[T]he undersigned must consider

whether the suppressed documents

were (1) favorable to Movant either

because

the

documents

were

exculpatory or impeaching, and (2)

material to the verdict such that the

suppression

prejudiced

Movant’s

defense. The cumulative effect of all

suppressed evidence favorable to a

defendant must be considered, rather

than considering each item of evidence

individually. Thus, the cumulative

effect requirement applies to the

materiality

element—not

the

favorability element. The undersigned,

therefore, will first determine whether

the suppressed evidence individually

was favorable to the Movant. Once

making this determination, the

undersigned

will

consider

the

cumulative effect of all suppressed

evidence favorable to Movant.

(PF&R at 14.) (citations omitted). The Magistrate

Judge determined that all undisclosed evidence was

favorable to the Movant, except for one email

regarding an exchange about an MSHA employee

issuing another violation at UBB.5 In sum, the

5 “Although the email indicates that a certain MSHA employee

would be ‘happy to give [Movant and Massey] one more piece of

paper,’ such does not reveal agency bias because the email clearly

App. 35

Magistrate Judge determined that: (1) the MSHA

email concerning advance notice was favorable to the

Movant, (2) four MSHA emails showing agency bias

were favorable to the Movant, but one email alleged to

reveal agency bias was not favorable to the Movant

and (3) the MSHA disciplinary records and internal

emails were favorable to the Movant.6

The Magistrate Judge further concluded that

the undisclosed MOIs for the five potential defense

witnesses, Mark Clemens, Steve Sears, Sabrina Duba,

Charlie Bearse, and Stephanie Ojeda, were favorable

to the Movant. The Magistrate Judge determined that

the “other source” exception to Brady, as explained in

United States v. Wilson, 901 F.2d 378, 381 (4th Cir.

1990), was not applicable to these witnesses because:

(1) it was clear the United States had the undisclosed

provides evidence supporting the issuance of a violation.

Accordingly, the foregoing email is not favorable to Movant.

(Criminal Action No. 5:14-00244, Document No. 663-5, p. 40,

Page ID 23404, USAO0000028.)” (PF&R at 24.)

“[T]he undersigned has concluded that the following MSHA

documents are favorable to Movant: (1) USAO0000030 (Criminal

Action No 5:14-00244, Document No. 663-5, pp. 44-45, Page ID

No. 23408.); (2) USAO0000114 (Criminal Action No. 5:14-cr00224, Document No. 663-6, p. 55, Page ID No. 23527.); (3)

USAO0000033 (Criminal Action No. 5:14-00244, p. 10, citing

Document No. 663-5, p. 49, Page ID No. 23413.); (4)

USAO0000109 (Criminal Action No. 5:14-00244, Document No.

663-6, p. 49, Page ID no. 23531.); (5) DLB-001532 (Criminal

Action No. 5:14-00244, Document No. 696-2, p. 1, Page ID No.

23797.); (6) USAO 000132 (Criminal Action No. 5:14-00244,

Document No. 663-6, p. 80, Page ID No. 23552.); and (7)

USAO0000024 (Criminal Action No. 5:14-00244, Document No.

663-5, p. 34, Page ID No. 23398.). The undersigned finds that

USAO0000028 is not favorable to Movant. (Criminal Action No.

5:14-00244, Document No. 663-5, p. 40, Page ID No. 23404;

USAO0000028.)” (PF&R at 29−30.)

6

App. 36

documents (whereas in other cases it was not clear the

government actually had exculpatory documents), (2)

defense counsel actually sought the material and the

United States misrepresented that such evidence had

been disclosed and (3) in this case, the MOIs were

clearly under the control of the prosecution and there

is no indication that the MOIs were available to

defense counsel through other sources. In addition,

the Magistrate Judge concluded that the MOIs for the

central witnesses, Blanchard and Ross, were also

favorable to the Movant.

The Magistrate Judge next concluded that,

considered cumulatively, the suppressed evidence was

material, and found that there was a reasonable

probability that its disclosure could have made a

difference in the resulting verdict. Specifically, the

Magistrate Judge determined that the United States

might have had a weaker case and the defense might

have had a stronger case if the suppressed materials

from MSHA and the MOIs for the five potential

witnesses had been disclosed. Moreover, the

Magistrate Judge determined that disclosure of the

“suppressed MOIs could have reduced the value of Mr.

Blanchard and Mr. Ross as witnesses for the United

States.” (PF&R at 57.)

The Magistrate Judge ultimately concluded

that he did not have confidence in the verdict, and

found that, based on the above reasoning, he lacked

assurance that the jury’s verdict would have been the

same had the suppressed evidence been disclosed. The

Magistrate Judge determined that the “Movant has

satisfied his burden of proof, establishing by a

preponderance of the evidence that the United States

violated his constitutional rights by committing a

App. 37

Brady violation justifying Section 2255 relief.” (PF&R

at 58.) The Magistrate Judge recommended that this

Court grant the Movant’s Section 2255 motion. Based

on the Magistrate Judge’s finding with respect to a

Brady violation, he did not address the Movant’s

claims regarding the Jencks Act and prosecutorial

misconduct. In sum, the Magistrate Judge

recommended that this Court grant the Movant’s

motion under 28 U.S.C. § 2255 to Vacate, Set Aside,

or Correct Sentence by a Person in Federal Custody

(Document 663), deny as moot Movant’s Motion for

Evidentiary Hearing (Document 704-1), deny as moot

Movant’s Motion for Oral Argument (Document 733),

and remove this matter from the Court’s docket.

SUBSTANTIVE LAW

In Brady v. Maryland, the United States

Supreme Court held that “suppression by the

prosecution of evidence favorable to an accused upon

request violates due process where the evidence is

material either to guilt or to punishment.” Brady v.

Maryland, 373 U.S. 83, 87 (1963). “Three essential

components of a Brady violation circumscribe the duty

[of disclosure]: (1) the evidence at issue must be

favorable to the defendant, whether directly

exculpatory or of impeachment value; (2) it must have

been suppressed by the state, whether willfully or

inadvertently; and (3) it must be material.” Spicer v.

Roxbury Corr. Inst., 194 F.3d 547, 555 (4th Cir. 1999)

(internal quotation marks omitted). “Impeachment

evidence . . . as well as exculpatory evidence, falls

within the Brady rule.” United States v. Bagley, 473

U.S. 667, 676 (1985) (citing Giglio v. United States,

405 U.S. 150, 154 (1972)).

App. 38

Undisclosed Brady evidence “is material only if

there is a reasonable probability that, had the

evidence been disclosed to the defense, the result of

the proceeding would have been different. A

‘reasonable probability’ is a probability sufficient to

undermine confidence in the outcome.” Id. at 682

(quoting Strickland v. Washington, 466 U.S. 668, 694

(1984)). “The mere possibility that an item of

undisclosed information might have helped the

defense, or might have affected the outcome of the

trial, does not establish ‘materiality’ in the

constitutional sense.” United States v. Agurs, 427 U.S.

97, 109−110 (1976). To establish a Brady claim, the

burden of proof rests with the defendant. United

States v. Chavez, 894 F.3d 593, 600 (4th Cir. 2018);

see also Garlotte v. Fordice, 515 U.S. 39, 46 (1995).

“[W]hile

courts

of

necessity

examine

undisclosed evidence item-by-item, their materiality

determinations must evaluate the cumulative effect of

all suppressed evidence to determine whether a Brady

violation has occurred.” United States v. Ellis, 121

F.3d 908, 91 (4th Cir. 1997); see also Kyles v. Whitley,

514 U.S. 419, 436 (1995); Monroe v. Angelone, 323

F.3d 286, 298 (4th Cir. 2003). The evidence is not

material if, “considering the collective impact of the

evidence, it could not ‘reasonably be taken to put the

whole case in such a different light as to undermine

confidence in the verdict.’” Campbell v. Polk, 447 F.3d

270, 276 (4th Cir. 2006) (quoting Kyles, 514 U.S. at

435). Impeachment evidence may be material if it was

the “only significant impeachment material,” or if the

witness to be impeached “supplied the only evidence

of an essential element of the offense.” United States

v. Parker, 790 F.3d 550, 558 (4th Cir. 2015) (quoting

United States v. Bartko, 728 F.3d 327, 339 (4th Cir.

App. 39

2013)). “In contrast, impeachment evidence is not

material if it is cumulative of evidence of bias or

partiality already presented and thus would have

provided only marginal additional support for the

defense.” Id. (quoting Bartko, 728 F.3d at 339)

(internal quotation marks omitted).

The materiality of suppressed evidence is also

assessed in light of the evidence presented at trial.

Bartko, 728 F.3d at 339; United States v. Gil, 297 F.3d

93, 103 (2d Cir. 2002). “Where the evidence against

the defendant is ample or overwhelming, the withheld

Brady material is less likely to be material than if the

evidence of guilt is thin.” Gil, 297 F.3d at 103. The

context of the entire record is used to evaluate the

omission. Agurs, 427 U.S. at 112−13. “If there is no

reasonable doubt about guilt whether or not the

additional evidence is considered, there is no

justification for new trial. On the other hand, if the

verdict is already of questionable validity, additional

evidence of relatively minor importance might be

sufficient to create a reasonable doubt.” Id.

Additionally, admissibility of the suppressed evidence

also bears on its materiality. Wood v. Bartholomew,

516 U.S. 1, 6 (1995) (finding that suppressed evidence

was not “material” under Brady due, in part, to its

inadmissibility at trial).

However, the Fourth Circuit has firmly

established that where the suppressed evidence is

both available to the defendant and in a source where

a reasonable defendant would look, the Brady rules do

not apply.7 United States v. Wilson, 901 F.2d 378, 381

7 Moreover, “[t]he majority of federal circuits . . . refuse to find a

Brady violation where the defense can access the material

through its own due diligence.” State v. Mullen, 171 Wash. 2d

App. 40

(4th Cir. 1990); United States v. Bros. Const. Co. of

Ohio, 219 F.3d 300, 316 (4th Cir. 2000); Lovitt v. True,

403 F.3d 171, 184 (4th Cir. 2005). This includes

suppressed evidence that could have been obtained by

the defendant through “reasonable and diligent

investigation.” Barnes v. Thompson, 58 F.3d 971, 976

(4th Cir. 1995); Hoke v. Netherland, 92 F.3d 1350,

1355 (4th Cir. 1996). Moreover, when the defense

counsel has failed to investigate an obvious and

readily available source of evidence, it may bolster the

conclusion that failure to investigate was an apparent

“tactical decision” by the defense counsel and no

Brady violation occurred. Barnes, 58 F.3d at 977.

The Brady rule illustrates the “special role

played by the American prosecutor in the search for

truth in criminal trials.” Strickler v. Greene, 527 U.S.

263, 280 (1999). The United States Attorney is “the

representative not of an ordinary party to a

controversy, but of a sovereignty whose obligation to

govern impartially is as compelling as its obligation to

govern at all; and whose interest, therefore, in a

criminal prosecution is not that it shall win a case, but

that justice shall be done.” Id. (quoting Berger v.

United States, 295 U.S. 78, 88 (1935)).

881, 896 n.5 (2011) (citing Ellsworth v. Warden, 333 F.3d 1, 6

(1st Cir. 2003); DiSimone v. Phillips, 461 F.3d 181, 197 (2d Cir.

2006); United States v. Pelullo, 399 F.3d 197, 213 (3d Cir. 2005);

United States v. Jeffers, 570 F.3d 557, 573 (4th Cir. 2009);

Pondexter v. Quarterman, 537 F.3d 511, 526 (5th Cir. 2008);

Owens v. Guida, 549 F.3d 399, 415 (6th Cir. 2008); Carvajal v.

Dominguez, 542 F.3d 561, 567 (7th Cir. 2008); Mandacina v.

United States, 328 F.3d 995, 1001−02 (8th Cir. 2003); United

States v. Aichele, 941 F.2d 761, 764 (9th Cir. 1991); Ward v. Hall,

592 F.3d 1144, 1183 (11th Cir. 2010); Xydas v. United States, 445

F.2d 660, 668 (D.C. Cir. 1971)).

App. 41

Because of this role, prosecutors in doubt

should resolve close calls in favor of disclosure. Kyles,

514 U.S. at 439. Favoring disclosure also works “to

preserve the criminal trial, as distinct from the

prosecutor’s private deliberations, as the chosen

forum for ascertaining the truth about criminal

accusations.” Id. at 540. “Brady material” often is used

to describe prosecutors’ broad duty of disclosure,

however, “strictly speaking, there is never a real

‘Brady violation’ unless the nondisclosure was so

serious that there is a reasonable probability that the

suppressed evidence would have produced a different

verdict.’” Strickler, 527 U.S. at 282. That is because

the Brady rule is designed to ensure compliance with

the due process requirement that the defendant

receive a fair trial. Bagley, 473 U.S. at 675.

DISCUSSION

The United States does not dispute that the

evidence at issue was suppressed. Therefore, to

determine whether a violation of Brady/Giglio

occurred, the analysis will turn on whether the

suppressed information was (a) favorable to the

Movant and (b) material such that it undermines

confidence in the verdict. The Court will assess each

piece of evidence item by item but make the overall

materiality determination by looking at the evidence

cumulatively. Ellis, 121 F.3d at 91. Again, there are

three main bodies of undisclosed evidence at issue in

this case: MOIs from five potential defense witnesses

and an attorney proffer for Chris Adkins, MOIs from

two government witnesses, Blanchard and Ross, and

MSHA materials.

Prior to addressing the three main bodies of

undisclosed evidence, however, the Court has

App. 42

observed that the Movant has woven several repeated

arguments throughout his submissions that should be

resolved initially. The Movant argues that some of the

undisclosed evidence would have shown MSHA’s

awareness of danger at the UBB mine and its failure

to address it, MSHA’s uncertainty about whether

certain conditions at the mine were actually violations

that should support a citation, MSHA’S issuance of

unsubstantiated violations to UBB, and that MSHA

employees received a “slap on the wrist” for

misconduct while he was criminally prosecuted. Given

the substance of the Movant’s conviction, and the

applicable law, any undisclosed evidence tending to

prove any of these issues would have been

inadmissible. The Movant and the United States

agreed, pre-trial, that the allegations in this case did

not include the cause of the UBB mine explosion.

(United States’ Motion in Limine Document 320;

Defendant’s Motion for Jury Instructions Regarding

the UBB Mine Explosion and to Exclude Evidence

Regarding the Explosion Document 287; and United

States’ Response Document 290.) Thus, neither

MSHA’s negligence or failures, if any, its uncertainty

about regulations nor the fact that its employees were

not criminally prosecuted was at issue, relevant, or

admissible during the trial of this case. Evidence of

this nature would, therefore, not be material for

purpose of Brady analysis.

Moreover, the Movant argues that the

undisclosed evidence indicates that MSHA citations

are such that they do not establish violations of safety

laws, that it issued unsubstantiated violations to UBB

and that MSHA decisions and policies made mine

conditions less safe, specifically its ventilation plan.

The Court instructed the jury, on at least two

App. 43

occasions, that the citations could not be used to

establish violations of safety laws. (Document 601 at

585; Document 626 at 5819.) Further, this Court

granted a motion in limine to exclude “claims that

federal mine safety standards were incorrect,

misguided or imprudent” (Oct. 6, 2015 Tr. at 266.) and

specifically granted a motion in limine regarding the

Movant’s quarrel with MSHA’s ventilation plan

(Document 463.).

Thus, any undisclosed evidence tending to

prove that citations do not establish safety law

violations or were unsubstantiated, or tending to

prove the efficacy of the ventilation plan or other

standard, would not have been admissible and,

therefore, is not material for Brady purposes. Wood,

516 U.S. at 6, (1995).

A.

MOIs from Five Potential Defense

Witnesses and Attorney Proffer

Potentially, some of the most “material”

evidence, meaning evidence most likely to undermine

confidence in the verdict, is found in the MOIs of

Clemens, Sears, Duba, Bearse, and Ojeda. The MOIs

suggest that these witnesses could have testified that

the Movant did not push production over safety, that

there were steps taken to insure safety, that the

Movant took Ross’s recommendations about safety

seriously, and that staffing was not an issue as

suggested by the United States. This information

would have been favorable to the Movant.

However, all of these people were current or

past employees of Massey who held administrative or

executive positions. Clemens was in charge of

production, sales, and budgeting, Sears oversaw

App. 44

Massey coal sales, Duba was a Massey senior

accountant, Bearse was President of Massey resource

group and Ojeda was Massey in-house counsel. Each

of them held positions with Massey (the very company

of which the Movant was CEO) that would require

them to have knowledge about production, sales,

safety, and/or staffing. In fact, as noted above, the

Movant, in his brief, stated that “[t]hese witnesses

were all employees whose roles gave them more

insight than many of the witnesses who ultimately

testified.”8 (Document 709 at 18.) Moreover, it is

undisputed that all of these Massey employees, except

Sears (who was retired at time of trial), were on the

Movant’s trial witness list.9

Given the clear language of Wilson, the Movant

is not entitled to the benefit of Brady protection for

these witnesses even though their MOIs are favorable,

because the “exculpatory information [was] not only

available to the defendant but also lies in a source

where a reasonable defendant would have looked . . .

” 901 F.2d at 381. Importantly, the substance of those

MOIs was available to the Movant through employees

of the very company of which he was CEO. The

Movant was actually in a better position than the

United States to know what the testimony of these

witnesses, relative to production, sales, safety and

staffing, was likely to be.

Under Brady, “the prosecutor is not required to

deliver his entire file to defense counsel, but only to

disclose evidence favorable to the accused that, if

8 The Movant chose to rest without calling witnesses.

9 The fact that Sears was retired did not make him unavailable

as a witness.

App. 45

suppressed, would deprive the defendant of a fair

trial.” Bagley, 473 U.S. at 676. Requiring a defendant

to exercise reasonable diligence in interviewing

potentially exculpatory witnesses does not constitute

deprivation of a fair trial.

Factors relevant to the Court’s finding include

the fact that all but one of the witnesses were on the

Movant’s trial witness list, the witnesses occupied

positions that would make them both obvious and

available

sources

of

potential

exculpatory

information, the Movant had knowledge of the

witnesses and that this case was—in the Movant’s

own words—“vigorously contested” by the defense

counsel. (Document 663 at 1.) These factors lead the

Court to conclude that defense counsel’s failure to call

or interview these witnesses, if indeed they were not

interviewed by the defense, was an apparent “tactical

decision,” rather than a constitutional deprivation.

Barnes, 58 F.3d at 977. Although unnecessary to the

analysis here, the Court finds it unlikely that persons

listed as potential trial witnesses by the defense were

not interviewed.

As noted above, the Magistrate Judge

determined that the “other source” exception to Brady

was not applicable to these five potential witnesses

because (1) it was clear that the United States had the

undisclosed documents (whereas in other cases it was

not clear the government actually had exculpatory

documents); (2) defense counsel actually sought the

material and the government misrepresented that

such evidence had been disclosed and (3) in this case,

there is no indication that the MOIs were available to

defense counsel through other sources. The Court

App. 46

finds, however, that this reasoning does not render

the “other source” exception inapplicable to this case.

First, there is nothing in the Wilson opinion

that suggests its language is not applicable if the

government actually possesses the Brady material.

The very import of Wilson is that a Defendant cannot

rely on the government’s failure to disclose the

material if it is otherwise available to the Defendant

or is in a place where a reasonably diligent defendant

would have looked. It will always be the case that the

government has possession of the evidence and failed

to produce it, or our analysis would not be within the

realm of Brady. Spicer, 194 F.3d at 555.

Second, for a Brady claim, the distinction

among situations in which the defendant makes “no

request,” a “general request,” or a “specific request” for

the disclosure of suppressed evidence has been

dissolved. Bagley, 473 at 682; Strickler, 527 U.S. at

280 (noting that the prosecutorial duty to disclose

evidence is the same “even though there has been no

request by the accused”). “[R]egardless of request,

favorable evidence is material, and constitutional

error results from its suppression by the government,

‘if there is a reasonable probability that, had the

evidence been disclosed to the defense, the result of

the proceeding would have been different.’” Kyles, 514

U.S. at 433 (quoting Bagley, 473 U.S. at 682). The

Movant’s request regarding MOIs in this case does not

alter the Brady analysis, and likewise has no bearing

on the application of the “other source” exception

under Wilson.

Last, although the MOIs were in the control of

the prosecutors and not accessible to the Movant, it is

the exculpatory interview information contained in

App. 47

the MOIs or the substance of the MOIs, that is really

at issue for purposes of Brady, not the MOI

documents. The actual substance of the MOIs from

these witnesses was clearly available to the Movant.

When a witness is readily available for a defendant to

interview or question, and the witness is a source

where a defendant, using reasonable diligence would

look, the Fourth Circuit has held that the Wilson

exception applies and does not require the prosecution

to turn over information or notes from interviews with

such witnesses. See Wilson, 901 F.2d at 381 (finding

no Brady violation where defendant could have

interviewed a witness that was likely to have

exculpatory evidence prior to trial); Hoke, 92 F.3d at

1355 (finding no Brady violation where police failed to

disclose interview notes from three witnesses with

potentially

exculpatory

information

because

defendant could have discovered the witnesses

through reasonably diligent investigation); Lovitt, 403

F.3d at 184 (finding exception to Brady where

defendant could have questioned doctor about her

opinion regarding the murder weapon’s potential to

inflict the victim’s wounds).10 To be clear, it is access

to the witnesses themselves, not access to documents

10 In reaching the opposite conclusion regarding the MOIs from

these witnesses, the Magistrate Judge appears to have relied

primarily on Strickler v. Greene, 527 U.S. 263 (1999) (finding

that petitioner may reasonably rely on prosecution’s open file

policy as representation that the suppressed information had

been disclosed) and United States v. Parker, 790 F.3d 550 (4th

Cir. 2015) (finding that the defendant’s knowledge that a witness

was involved in a scam did not relieve the government of its

obligations under Brady to disclose that the witness was subject

of an ongoing fraud investigation by the SEC). However, the

Court finds the line of cases specifically dealing with suppressed

interview information from available and obvious witnesses to be

more pertinent to this particular case.

App. 48

containing interview notes, that guides the analysis

when determining whether the Wilson exception is

applicable. In this case, by conducting reasonably

diligent investigation, the Movant could have

interviewed the five potential witnesses to obtain

exculpatory statements.

Thus, there is no Brady violation resulting from

prosecutorial failure to disclose the MOIs for these

witnesses. Because MOIs from these witnesses fall

under the Wilson “other source” exception to the

Brady rule, the MOIs from Clemens, Sears, Duba,

Bearse, and Ojeda do not factor into the cumulative

materiality of the non-disclosures, despite being

favorable to the Movant. Additionally, and perhaps

parenthetically, most of the favorable substance of

these MOI’s was brought out as evidence during the

trial making the statements made in the MOI’s

cumulative, at best.

The Movant argues a proffer made by an

attorney for Chris Adkins, the Chief Operating Officer

at Massey and Blanchard’s immediate supervisor,

was undisclosed. The Court has reviewed the

attachments submitted by the Movant and notes the

attorney proffer was not submitted to the Court as an

exhibit.11 In addition, apart from stating that the

attorney proffer was undisclosed, the Movant has not

made any further argument that the proffer was

11 The attachments to Document 703 do not include a document

labeled USAO0000174 as cited by the movant. (See Document

705, at 7.) Instead, the series of USAO documents submitted with

the Movant’s memorandum end at USAO0000173. (Document

703-3)

App. 49

favorable such that it could serve as the basis for a

Brady violation.

Pursuant to the Court’s Order, filed June 12,

2015, the United States was not required to produce

documents containing handwritten and typewritten

notes of interviews made by government attorneys

and agents or attorney proffers, but instead, was

required to produce the “substance” of such

documents. (Document 279.) After careful review of

the record, the Court has discovered that the

substance of an attorney proffer from counsel

representing Mr. Adkins, dated August 22, 2014, was,

in fact, disclosed to the Movant. Specifically, the

United States disclosed the following:

Mr.

Adkins’

counsel

related

information from Mr. Adkins that

included

the

following:

Mr.

Blankenship was involved in the

development of the violation targets

and report cards for the so-called

hazard elimination program. Mr.

Adkins also believed that Massey made

some degree of effort to comply with

mine safety laws.

(Document 283-1, at 3.) Because the Movant failed to

submit the attorney proffer to the Court, the Court

cannot verify whether the above-disclosed attorney

proffer was the same as that cited by the Movant as

undisclosed. However, due to the Movant’s failure to

make any argument regarding the favorability of the

attorney proffer, the Court order requiring only that

the substance of such proffers be disclosed and the

Movant’s failure to submit the purportedly

App. 50

undisclosed proffer for Court review, the Court finds

the Movant has failed to meet his burden of proof in

establishing that such evidence was, in fact, Brady

material.

B.

MOIs from Government Witnesses: Ross

and Blanchard

The Movant argues that ten MOIs from two of

the government’s main witnesses should have been

disclosed. As an initial matter, it is not clear that the

MOIs from Ross and Blanchard contain information

that is, in fact, favorable. After careful review, the

Court observes that the MOIs from Ross and

Blanchard are overwhelmingly negative toward the

Movant, and that most of the favorable information

cited by the Movant may only be viewed as such when

taken entirely out of context of the full documents. A

Brady claim arises when there is an “obviously

exculpatory character of certain evidence” or “the

evidence is so clearly supportive of a claim of

innocence that it gives the prosecution notice of a duty

to produce . . .” Agurs, 427 U.S. at 107. It is not

apparent that such a duty applies to evidence that

may only be construed as favorable when entirely

stripped from the surrounding context. In addition, at

least two of the MOIs contained no information that

could be construed as favorable to the Movant.

(Document 663-4 at 42, MOI-001550; Document 6634 at 24, MOI-001553.)

Moreover, several statements cited by the

Movant as favorable directly contradict the theory of

the case pursued by the defense team. For example,

the Movant cites part of the following statement from

Blanchard’s MOI as exculpatory, “Blankenship

viewed violations as the cost of doing business and felt

App. 51

violations were going to be written by MSHA. . ..

Blankenship had a disdain for MSHA first, above DEP

and the state. Blankenship felt MSHA made things

up.” (Document 663-2, MOI 001402.) However, the

notion that Blankenship felt violations were made up

was entirely contradictory to the defense theory of the

case, which was instead that Blankenship was serious

about remedying violations and did not willfully break

the law or ignore violations. (See Document 613 at

3042, lines 14-19; Document 613 at 3056, lines 2-24.)

In fact, although the defense claims it did not have

access to the above-mentioned statement, it

extensively questioned Blanchard on crossexamination to make the point that Blankenship did

not think that citations were just made up or the “cost

of doing business.” (See e.g., Document 610 at 254647; Document 611 at 2694, lines 14-18; Document 614

at 3094, lines 3-17.)

Similarly, the Movant cites two statements

from the Ross MOIs as exculpatory although they

directly contradict the defense theory of the case.

First, the Movant cites a few lines from a MOI in

which Ross describes a conversation with

Blankenship

about

violations,

noting

that

“Blankenship was most interested in knowing why

MSHA was so biased against Massey.” (Document

663-3, MOI 001492.) Second, the Movant cites the

following statement: “Ross advised that when he met

with Blankenship, Blankenship wanted to know if

Massey was getting all of the violations because

MSHA was biased.” (Document 663-3, MOI 001499.)

In the MOI, the following sentence is found: “Ross

explained to Blankenship that the reason Massey

received violations was because they had compliance

issues.” Id.

App. 52

Statements tending to establish that the

Movant believed MSHA was biased are not favorable.

Instead, information proffered to the effect that the

Movant thought violations were not real or serious

would not have helped him avoid a finding that he

willfully violated mine safety laws. Consistent with

this, the defense counsel went to great lengths to draw

out the exact opposite point on cross-examination:

that the Movant believed all citations from MSHA

were legitimate and that he was serious about

remedying violations. (See e.g., Document 610 at

2527; Document 613 at 3042, 3056.)

For the remainder of the statements cited by

the Movant as exculpatory, the Court has assumed

their favorability and examined the record to

determine whether the statements were material to

the outcome of the trial. After careful review of the

trial transcript, the Court has discovered that the

subject of every single exculpatory statement cited by

the Movant as undisclosed was covered by the defense

counsel during cross-examination at trial.12 In fact, all

of the undisclosed allegedly exculpatory statements

contained in the Blanchard and Ross MOIs were

covered thoroughly and repeatedly with the witnesses

during cross-examination.

For example, the Movant cites, as undisclosed

Brady material, two statements demonstrating that

both Ross and Blanchard thought all mines would

have at least some citations. This topic, however, was

extensively covered with both witnesses on cross12 The Court notes that ideally, consistent with professional and

ethical standards, prior to filing such a motion, Movant’s counsel

would have reviewed the trial transcript to ensure the accuracy

of arguments related to nondisclosure.

App. 53

examination. For Blanchard, the Movant cites the

following statement from an undisclosed MOI:

“Blanchard stated there was no amount of money or

resources that could take care of all violations at a

mine.” (Document 663-4 at 33, MOI-001547.)

However, during cross-examination, the defense

questioned Blanchard about this exact point at least

five separate times. (See e.g., Document 610 at 254647 (testifying that it would take an impossible amount

of money to get to zero citations and that it does not

matter how many workers you have in a mine, there

will still be some citations); Document 611 at 2587,

2589, 2694; Document 612 at 2852.) Similarly, during

cross-examination Ross provided a response that was

nearly identical to the undisclosed statement in the

MOI. The undisclosed piece of evidence from the Ross

MOI states: “Ross advised that you would be hard

pressed to go to a mine and not find some violations.”

(Document 663-4 at 16, MOI-001531.) However,

during cross-examination Ross stated, “It would be

hard pressed to find a mine that you wouldn’t find at

least some violations. I don’t know how many.”

(Document 618 at 4161-62.) Ross further explained

this point at trial by stating that he was not aware of

any mines in the country with zero citations. Id.

Furthermore, the Movant argues that several

statements tending to show MSHA bias were

wrongfully suppressed. (Document 663-4 at 74, MOI001580; Document 663-3 at 85-98, MOI-001492;

Document 663-3 at 85-98, MOI-001499.) At trial,

however, the defense team exhausted the concept of

MSHA bias during cross-examination of Ross and

Blanchard, rendering the additional statements in the

MOIs merely cumulative of evidence previously

presented. (See e.g., Document 611 at 2603; Document

App. 54

618 at 4168-72, 4194-96; Document 619 at 4221-25,

4233-37, 4251-52, 4302, 4305-06, 4314-15, 4315-17;

Document 614 at 3284-3308.)

To argue for wrongful suppression, the Movant

cites the following undisclosed statement: “Blanchard

advised that he never knowingly gave a direct order

where he told someone to do something that caused a

law to be broken.” (Document 663-3 at 48-51, MOI001457.) However, on cross-examination at trial,

Blanchard testified that there was no information

indicating that Blankenship wanted to violate safety

laws, that Blanchard never committed a willful

violation of mine safety regulations, and that there

was no agreement or understanding between

Blanchard and Blankenship to violate mine safety

laws. (Document 610 at 2527, 2531; Document 611 at

2694.) Therefore, the additional statement would

have added no value to Blanchard’s testimony for the

Movant, since it was merely redundant or cumulative

of exculpatory evidence previously presented to the

jury during trial.

Another exculpatory statement from an

undisclosed MOI cited by the Movant reads:

“Blanchard was surprised to read the testimony from

UBB miners that respirable dust fraud was occurring

at the mine. Blanchard added the company did not

want people cheating on their respirable dust

sampling.” (Document 663-4 at 74, MOI-001580.)

However, this exact point was repeatedly elucidated

on cross-examination at trial. (Document 610 at 252728; Document 613 at 3068-69.)

Next, the Movant cites the following

undisclosed statement: “Blanchard does not believe

that MSHA or anyone from MSHA was trying to do

App. 55

something to endanger the health and safety of

miners. Blanchard does think decisions MSHA made

ended up endangering the health and safety of

miners.” (Document 663-4 at 74, MOI-001580.)

However, during cross-examination at trial, the

defense more fully questioned Blanchard about his

understanding of the decisions MSHA made—

particularly how some MSHA decisions made

ventilation of the mine more difficult. (Document 611

at 2603; Document 613 at 3264, 3284-3308.) As such,

all of the favorable information contained in the

undisclosed Blanchard MOIs was covered on crossexamination at trial.

Likewise, for the undisclosed Ross MOIs, every

single exculpatory statement cited by the Movant was

covered extensively on cross-examination at trial. One

such piece of evidence referenced by the Movant

states: “Blankenship also informed Ross that Massey

needed to reduce violations for sure.” (Document 6633 at 73, MOI-001487.) This point, however, was

covered numerous times during cross-examination of

Ross. For example, one line of questioning stated: “Q:

And you did know, didn’t you, that [Blankenship]

wanted the operators of these mines to reduce the

citations? A: Yes.” (Document 618 at 4126; see also

Document 618 at 4151; Document 619 at 4255-56,

4318, 4374, 4375-76.)

The Movant also cites the following undisclosed

statement: “Blankenship wanted Ross to talk to him

about the issues.” (Document 663-4 at 16, MOI001530.) During cross-examination the fact that

Blankenship wanted feedback and suggestions from

Ross regarding citation issues was covered on at least

eight separate occasions. (Document 618 at 4123-25,

App. 56

4136-37, 4146, 4148-49, 4161; Document 619 at 4254,

4322.) Covering the same point for the ninth time

would have added no possible value to the defense.

Next, the Movant notes that a Ross MOI stated:

“Ross advised that he was hired by Massey Energy to

teach foremen about ventilation, respirable dust, and

other safe workplace measures. Ross was able to

travel wherever he wanted to travel. Ross would also

be told by Chris Adkins to visit certain mines where

they thought his assistance was needed.” (Document

663-2 at 67, MOI-001474.) During cross-examination

at trial, the defense counsel demonstrated extensive

knowledge about Ross’ employment and the nature of

his role at Massey, making the undisclosed statement

repetitious considering exculpatory information on

the same point presented at trial. (Document 618 at

4121-22, 4126, 4151, 4163-73.)

The Movant also argues that the following

statement was material: “Ross explained to

Blankenship that Massey miners think the way they

are doing things was the right way for Blankenship.

Blankenship informed Ross that he did not know why

they were getting this idea. Blankenship stated that

he did not know that was the way Massey miners

thought.” (Document 663-3 at 73, MOI-001488.) As

noted above, the point was made repeatedly that

Blankenship wanted mine operators to reduce

citations. Additionally, it was covered at trial that

Blankenship had a hard time understanding why

there were so many citations at the mine, and that he

wanted miners to do a better job eliminating

violations. (Document 618 at 4128-29.)

Last, the Movant cites the following

undisclosed statement: “On August 5, 2009, at a

App. 57

meeting with all of Massey Energy’s salaried people

at Scott High School . . . Adkins stated that they

should comply with all regulations at the mine site

and that they did not have to worry anymore.”

(Document 663-2 at 67-71, MOI-001476.) However,

once again, the fact that Adkins wanted compliance

with regulations was covered extensively on crossexamination at trial. The trial transcript reflects an

exchange between defense counsel and Ross regarding

Adkins’ statements at the same August 5, 2009

meeting as follows:

Q: And you have also heard Mr.

Adkins say, “We’ve gotten ourselves in

a situation where we’ll take a violation

just to keep running coal. That’s the

wrong mindset to have, and it’s what

we’re going to change today.” You

heard him say that?

A: Yes.

Q: Do you recall him saying, “I’m

asking everybody to step it up a notch.

I’m asking for everybody at Massey to

ramp it up a notch, that that’s all I’m

asking, eliminate the hazard. You see a

hazard, eliminate it immediately.” Do

you recall him saying that?

A: Yes.

Q: And do you recall his saying near

the end of the meeting, “If you are

violating the law, it’s because you want

to do it. Because I’m sitting here telling

you today the main guy over all

App. 58

production,

Massey

plants

and

everything, I’m telling you, you don’t

have to do it. So, if you’re doing it,

you’re doing it on your own. I’m not

winking. I’m not nodding. I’m telling

you, don’t do it.” Do you remember his

saying that?

A: Yes.

Q: And as you suggested at some

point that Mr. Blankenship and Mr.

Adkins make it clear what their

message was, that is what Mr. Adkins

did right then; isn’t it?

A: Yes.

(Document 619 at 4325; see also Document 618 at

4151.) Therefore, not only did the defense counsel

elucidate the point that Mr. Adkins wanted people to

comply with regulations and reduce violations, but it

also appears as though defense counsel had access to

a script of what Mr. Adkins said during the August 5,

2009 meeting.

After careful review of the record, it is apparent

that the favorable information in the undisclosed

MOIs for Ross and Blanchard is merely redundant of

evidence presented to the jury at trial when viewed

cumulatively. Parker, 790 F.3d at 558 (quoting

Bartko, 728 F.3d at 339). The substance of the

undisclosed exculpatory statements was covered

extensively and repeatedly with Ross and Blanchard

at trial. Because additional statements going to the

same points that were covered at trial are cumulative

of evidence previously presented, their disclosure

App. 59

could have no impact on the outcome of the case.

Therefore, the Court finds that the MOIs for Ross and

Blanchard are not material, and the nondisclosure of

the Ross and Blanchard MOIs cannot serve as the

basis for a Brady violation.

C.

MSHS Material

The Movant further argues that several MSHA

documents should have been disclosed. The Movant

argues that the undisclosed material was exculpatory

and could have been used to demonstrate that (1)

MSHA citations did not reflect actual violations; (2)

MSHA bias and contempt toward Massey and

Blankenship; (3) it was not clear that Massey’s

practices related to advance notice were actually

illegal and (4) several MSHA supervisors were

disciplined by the agency for inadequate supervision

over UBB—particularly for failing to consider the

interaction between mine dust and the approved

ventilation plans. The Magistrate Judge determined

that one MSHA email was not favorable to the

Movant, and the Court agrees. (Document 663-5 at

USAO0000028.) For the remaining undisclosed

MSHA materials, the Court has assumed their

favorability. However, the Court finds that the

undisclosed MSHA materials were not material,

because there was no reasonable probability that the

evidence could have had an impact on the verdict.

Most of the Movant’s arguments here were addressed

by the Court earlier in this opinion.

As previously stated, evidence that is

inadmissible at trial is not material under Brady,

since it has no bearing on the outcome of the case.

Wood, 516 at 6. Again, pursuant to this Court’s

pretrial rulings, evidence related to unsubstantiated

App. 60

violations, advance notice, and improper MSHA

ventilation plans was inadmissible. By Order entered

October 6, 2015, this Court ruled that evidence

designed to show that a system of advanced notice was

lawful would not be admissible. (Oct. 6, 2015, Tr. at

870-71.) The Movant’s argument that suppressed

MSHA material could have supported a defense that

Massey’s practice of informing miners when

inspectors arrived was lawful has no merit, since

evidence going toward such a defense would have been

barred at trial.

Similarly, by the same Order, this Court ruled

that citations from MSHA would be admissible only if

they are “not being offered for the truth of the matter

asserted in them or, in other words, to prove violations

of safety standards but are being offered as evidence

of the defendant’s knowledge, intent, and/or

willfulness as well as notice.” (Oct. 6, 2015, Tr. at 854.)

These citations were admissible only to show

Blankenship’s knowledge or intent relative to safety

issues as opposed to evidence of actual safety law

violations. Therefore, evidence related to the legality

of advanced notice and unsubstantiated citations are

not material.

The Movant also argues that evidence showing

that MSHA officials failed to consider the interaction

between the ventilation plans and mine dust in

approving plans was material. The Movant argues

that this evidence would have supported a key

defense—that the ventilation plan MSHA imposed

created unavoidable violations. (Document 663 at 13.)

However, as previously stated, by Order entered on

October 6, 2015, the Court granted the United States’

motion in limine to exclude “claims that federal mine

App. 61

safety standards were incorrect, misguided, or

imprudent.” (Oct. 6, 2015, Tr. at 866.) Because the

Movant seeks to argue that MSHA ventilation plans

were incorrect or misguided, this evidence and

defense would have been inadmissible. In addition,

arguments presented before and during trial suggest

that the Movant was well aware of such evidence.

Therefore, evidence related to MSHA discipline for the

ventilation plans is not material due to its

inadmissibility.

The remaining exculpatory evidence consists of

several undisclosed emails from MSHA employees,

which the Movant argues would have supported the

defense that MSHA was biased against both Massey

and Blankenship. For example, an MSHA employee

sent an email stating: “I hope that him [Blankenship]

and Glenn Beck get raped by a rhinoceros. Horn end.”

(Document 663-6 at USAO0000109.) Another email

demonstrates an MSHA Mine Administrator

responding to a draft press release regarding

complaints about Massey mines by stating: “My only

comment is to put a dagger into massey [sic].”

(Document 663-5 at USAO0000033.)

The Court must now determine whether these

emails contain information that, if disclosed, would

have been exculpatory in such a manner as to

undermine confidence in the verdict. Importantly, this

inquiry must be undertaken in light of the entire

record. Agurs, 427 U.S. at 112−13. Emails tending to

show bias on behalf of individual MSHA employees

does not necessarily substantiate a claim that the

agency itself was biased against the Movant or

Massey. In fact, as the Movant acknowledged, the

sentiment contained in at least one of the two emails

App. 62

was directly “overruled by the head of MSHA.”

(Document 663-5 at USAO0000033.) This supports

the notion that decisions made on behalf of the agency

were not impacted by bias held by individual MSHA

employees.

Moreover, the evidence presented against the

Movant was substantial. At trial, the Court instructed

the jury on the count of conviction as follows:

Thus, in order to find the Defendant

guilty of Count One, the Government

must prove beyond a reasonable doubt

that two or more persons agreed to

willfully violate mandatory mine safety

standards at UBB during the

indictment period; that the Defendant

intentionally joined the agreement

knowing that one of its objectives was

to willfully violate mine safety

standards at UBB; that the Defendant

intended that willful violations of mine

safety standards be committed at UBB;

and that at least one overt act in

furtherance of the conspiracy was

knowingly and willfully committed by

at least one member of the conspiracy

during the life of the conspiracy.

(Document 540 at 22.) It is not evident that

information related to MSHA bias is directly relevant

to whether the Movant willfully violated mine safety

standards. The core evidence regarding safety

violations was not MSHA citations, but testimony

from miners and others with direct, firsthand

knowledge of conditions in the mine. The jury trial

proceeded for six weeks, during which numerous

App. 63

individual miners testified and considerable

additional evidence was presented to show that the

Movant willfully violated mine safety regulations. In

this light, even if the Court viewed the individual

employee emails as evidence of agency bias, the Court

finds that the Movant has failed to meet his burden of

demonstrating that a reasonable probability exists

that the outcome of the trial might have been different

had the suppressed evidence, alleged to be related to

MSHA bias, been disclosed prior to trial.

In sum, all evidence cited by the Movant in

support of the § 2255 motion was either excluded by

Court rulings, exhaustively covered at trial, or

immaterial to the charge. The record makes clear that

much, if not all, of the information cited by the Movant

as Brady material was available to the defense team

from some source. For the Ross and Blanchard MOIs,

every single statement cited as undisclosed pertained

to topics covered extensively by the defense team at

trial. Moreover, as noted above, a majority of the

MSHA documents cited as Brady material covered

topics that the Court ruled on repeatedly prior to and

during trial, making it apparent to the defense team

that such evidence was inadmissible.

Having considered all of the arguments made

by the Movant, the nature and content of the

undisclosed documents, the substantive evidence

presented at trial and the applicable law, the Court

finds the Movant has failed to meet his burden to

establish that a reasonable probability exists that the

outcome of the trial might have been different had the

suppressed evidence been disclosed prior to trial.

Specifically, after thorough review, nothing has been

App. 64

presented to undermine confidence in the jury’s

verdict.

D.

Jencks Act

The Movant argues that the prosecution

violated the Jencks Act by failing to disclose MOIs.

However, a Jencks Act claim fails where the failure to

disclose does not result in prejudice. Rosenberg v.

United States, 360 U.S. 367, 371 (1959). Moreover, the

Jencks Act applies to statements that are written and

“signed or otherwise adopted or approved by the

witness as well as a recording of a witness’ oral

statement that is a substantially verbatim recital.”

United States v. Roseboro, 87 F.3d 642, 645 (4th Cir.

1996) (quoting 18 U.S.C. § 3500(b)) (internal

quotation marks omitted) (noting that “when a

government agent interviews a witness and takes

contemporaneous notes of the witness’ responses, the

notes do not become the witness’ statement”). The

MOIs at issue in this case are not producible under

the Jencks Act. The MOIs constitute summaries of

conversations with such witnesses, evidenced by the

use of third person to reference the interviewees

throughout the documents. Additionally, during its

Brady analysis, the Court determined that failure to

disclose the MOIs did not result in prejudice.

Therefore, the Court finds that the Movant’s request

for relief pursuant Jencks Act claim should be denied.

E.

Prosecutorial Misconduct

The Movant argues that the United States

committed

prosecutorial

misconduct

by

misrepresenting compliance with the Court’s

discovery orders. “To prevail on a claim of

prosecutorial misconduct, a defendant must show (1)

App. 65

that the prosecutor’s remarks and conduct were, in

fact, improper and (2) that such remarks or conduct

prejudiced the defendant to such an extent as to

deprive the defendant of a fair trial.” United States v.

Tipton, 581 Fed. Appx. 188, 189 (2014) (quoting

United States v. Allen, 491 F.3d 178, 191 (4th Cir.

2007)). The Movant, however, appears to be

essentially rehashing and converting the Brady claim

into the legal framework for prosecutorial misconduct.

Although this Court does not condone any violation of

its orders, because the prosecution’s conduct resulted

in no prejudice to the Movant, the Court finds that the

requested relief should be denied.

F.

Motions for Evidentiary Hearing and

Oral Argument

The Movant also filed a Motion for Oral

Argument (Document 733) and a Motion for

Evidentiary Hearing (Document 704-1), arguing that

if the § 2255 petition for relief was not granted, then

an evidentiary hearing would be needed to resolve

factual issues. The Court finds that there are no

pending factual disputes since the parties agree to the

underlying facts regarding nondisclosure. Therefore,

an evidentiary hearing and oral argument would not

benefit the Court in this matter. These motions should

be denied.

CONCLUSION

Again, it is undisputed that the United States

failed to disclose documents and that this failure is

violative of Department of Justice policy and the rules

of discovery. The sheer number of undisclosed

documents is troubling. Moreover, basic review of the

record reveals that many of the statements made by

App. 66

Counsel for the Movant, as to his knowledge of

undisclosed

materials

and

the

impact

of

nondisclosure, are simply inaccurate. The legal

profession and this Court demand more of all

concerned. Importantly, however, there is clear

precedent that guides the analysis and dictates the

ultimate resolution in this matter.

WHEREFORE, after thorough review and

careful consideration, the Court ORDERS that the

Motion to Vacate and Set Aside Defendant’s

Conviction and Sentence Pursuant to 28 U.S.C. § 2255

(Document 663) be DENIED and that this matter be

DISMISSED and STRICKEN from the Court’s docket.

Further, the Court ORDERS that the Movant’s

Motion for Evidentiary Hearing (Document 704-1)

and Motion for Oral Argument (Document 733) be

DENIED and that all other pending motions be

TERMINATED AS MOOT.

The Court DIRECTS the Clerk to send a

certified copy of this Order to the Honorable Omar J.

Aboulhosn, to counsel of record, and to any

unrepresented party.

App. 67

______________

APPENDIX C

_______________________

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF

WEST VIRGINIA

BECKLEY DIVISION

CIVIL ACTION NO. 5:18-cv-00591

(Criminal No. 5:14-cr-00244)

Magistrate Judge Omar J. Aboulhosn

[Filed August 26, 2019]

____________________________________

DONALD L. BLANKENSHIP,

)

)

Movant,

)

)

v.

)

)

UNITED STATES OF AMERICA,

)

)

Respondent.

)

____________________________________)

PROPOSED FINDINGS AND

RECOMMENDATION

Pending before the Court are the following

Motions: (1) Movant’s Motion Under 28 U.S.C. § 2255

to Vacate, Set Aside or Correct Sentence by a Person

in Federal Custody (Document No. 663), filed on April

18, 2018; (2) Movant’s Motion for Evidentiary Hearing

(Document No. 704), filed on September 5, 2018; and

App. 68

(3) Movant’s Motion for Oral Argument (Document

No. 733), filed on July 31, 2019. By Standing Order,

this matter was referred to the undersigned for

submission of proposed findings of fact and a

recommendation for disposition pursuant to 28 U.S.C.

§ 636(b)(1)(B). (Document No. 665.)

PRELUDE

Carl Calvin “Pee Wee” Acord, Jason Atkins,

Christopher Bell, Gregory Steven Brock, Kenneth A.

Chapman, Robert E. Clark, Cory Thomas Davis,

Charles Timothy Davis, Michael Lee “Cuz” Elswick,

William Ildon “Bob” Griffith, Steven “Smiley” Harrah,

Edward Dean Jones, Richard K. Lane, William

Roosevelt Lynch, Joe Marcum, Ronald Lee Maynor,

Nicholas Darrell McCroskey, James E. “Eddie”

Mooney, Adam Keith Morgan, Rex L. Mullins, Joshua

Scott Napper, Howard D. “Boone” Payne, Dillard Earl

“Dewey” Pesinger, Joel R. “Jody” Price, Gary Wayne

Quarles, Deward Allan Scott, Grover Dale Skeens,

Benny Ray Willingham, and Ricky Workman.1

These are the names of the miners who lost

their lives on the afternoon of April 5, 2010 when an

explosion occurred at the Upper Big Branch [“UBB”]

Coal Mine in Montcoal, WV. The criminal trial of the

Movant, while related to the events of that day, was

not in fact a trial as to the cause of the April 5, 2010

tragedy, but was instead, generally, related to

criminally prosecuting the Movant for allegations of

violating mine safety laws. Regardless, the

undersigned finds it appropriate to remember the

men who lost their lives on April 5, 2010 and the

1 http://www.ubbminersmemorial.com/the-miners

App. 69

family members who have had to live with the loss of

their loved ones since this tragedy occurred.

The UBB disaster was a tragedy felt most

poignantly in southern West Virginia, but it was also

felt around the world when it was learned of the

magnitude of the tragedy and the number of lives lost

that day. The significance that coal mining has played

in the growth and history of the United States cannot

be overstated. Furthermore, it is impossible to

overstate the impact that coal mining has had to the

history of the State of West Virginia, to the way of life

that many West Virginians have lived from

generation to generation, and to the economic wellbeing of the lives of families who have made coal

mining their career. While mining has become much

safer over the last century, due in large part to federal

and State mining laws and regulations, this tragedy

shows that coal mining is still a dangerous profession

and that mining, while safer, is still not safe. Over the

last century, in response to many other mining

tragedies and the loss of life, Congress and States

responded with legislation to attempt to prevent the

next tragedy from happening. Over the course of the

last 120 years, mining employment fell from a high of

862,536 miners in 1923 to just 82,699 in 2018.2 More

importantly, mining deaths fell from a high of 3,242

lives in 1907 to a low of 8 in 2016.3 Much of the

lowering of mining deaths can be attributable to the

improvements mandated by mine safety legislation.

With that said, the decision that follows should

not be seen as a decision on what caused or did not

2 https://arlweb.msha.gov/stats/centurystats/coalstats.asp

3

Id.

App. 70

cause the UBB disaster as the criminal trial of the

Movant was not about that issue. The issue at the

criminal trial of the Movant was whether the Movant

criminally violated mine safety laws. A jury of his

peers found that he did. The issue in this immediate

matter before the undersigned is should the Movant’s

conviction be vacated or set aside due to admitted

errors by the United States during the discovery

phase and trial of the Movant’s criminal prosecution.

The decision that follows is based upon the laws

and the facts that the undersigned has before him.

While the Movant attempts to ascribe ill motives to

the United States and the attorneys that tried the

case, the undersigned has found no ill motive in the

actions taken during the prosecution of this case.

While the United States has admitted that errors

were made and further argues reasons as to why those

areas don’t necessitate the relief sought by the

Movant, the undersigned has found that those errors

were simply that: errors. An analysis of the laws and

the facts and the conclusions reached by the

undersigned follow this preamble.

PROCEDURAL BACKGROUND

1.

Criminal Action No. 5:14-00244:

By Superseding Indictment filed on March 10,

2015, Movant was charged with one count of

conspiracy to willfully violate mandatory mine safety

and health standards in violation of 30 U.S.C. § 820(d)

and 19 U.S.C. § 371 and to defraud the United States

by impeding the Mine Health Safety Administration

[“MSHA”] in the administration and enforcement of

mine safety and health laws in violation of 18 U.S.C.

App. 71

§ 371 (Count One); one count of making false

statements to the Securities and Exchange

Commission in violation of 18 U.S.C. § 1001 (Count

Two); and (3) one count of making false statements in

connection with the sale or purchase of securities in

violation of 18 U.S.C. § 78ff (Count Three). (Criminal

Action No. 5:14-002244, Document No. 170.)

Following a 36-day jury trial beginning on October 7,

2015, Movant was convicted as to Count One and

acquitted as to Counts Two and Three. (Id., Document

No. 529.) The District Court sentenced Movant on

April 6, 2016, to a 12-month term of imprisonment.

(Id., Document Nos. 585 and 589.) The District Court

further imposed a one-year term of supervised

release, a $250,000 fine, and a $25.00 special

assessment. (Id.)

Movant filed a Notice of Appeal on April 7,

2016. (Id., Document No. 591.) In his appeal, Movant

argued that the District Court erred by: (1)

“erroneously conclude[ing] that the Superseding

Indictment sufficiently alleged a violation of Section

820(d);” (2) “improperly deny[ing] [Movant] the

opportunity to engage in re-cross examination of an

alleged coconspirator;” (3) “incorrectly instruct[ing]

the jury regarding the meaning of ‘willfully’ in 30

U.S.C. § 820(d), which makes it a misdemeanor for a

mine ‘operator’ to ‘willfully’ violate federal mine safety

laws and regulations;” and (4) “incorrectly

instruct[ing] the jury as to the government’s burden

of proof.” Id., Document No. 647; United States v.

Blankenship, 846 F.3d 663, 667 (4th Cir. 2017). On

January 19, 2017, the Fourth Circuit Court of Appeals

affirmed the District Court’s judgment. Id. Movant

filed a petition for certiorari, which was denied by the

United States Supreme Court on October 10, 2017.

App. 72

Blankenship v. United States, ___ U.S. ___, 138 S.Ct.

315, 199 L.Ed.2d. 207 (2017).

2.

Section 2255 Motion:

On April 18, 2018, Movant, by counsel, Howard

C. Vick, Benjamin L. Hatch, and W. Henry Jernigan,

Jr., filed his instant Motion to Vacate and Set Aside

Conviction and Sentence Pursuant to 28 U.S.C. §

2255. (Civil No. 5:18-00591, Document No. 663.) As

grounds for habeas relief, Movant argues as follows:

(1) The United States suppressed material

exculpatory and/or impeaching evidence in violation

of Brady v. Maryland and Giglio v. United States (Id.,

pp. 10 –13.); (2) The United States suppressed

evidence in violated of the Jencks Act and Rule 26.2 of

the Federal Rules of Criminal Procedure (Id., pp. 13 –

14.); (3) The United States violated the District

Court’s Orders regarding discovery thereby depriving

Movant of his constitutional right to a fair trial (Id.,

pp. 14 – 17.); and (4) Prosecutorial misconducted

denied Movant due process and a fair trial (Id., pp. 18

– 19.). As relief, Movant requests that his sentence

and conviction be vacated and set aside. (Id., p. 19.) As

Exhibits, Movant attaches a copy of pertinent

documents that were allegedly improperly withheld

(Id., Document Nos. 663-1, 663-2, 663-3, 663-4, 663-5,

663-6.).

On the same day, Movant filed a “Motion for

Extension of Time to Submit a Memorandum in

Support of Motion to Vacate Pursuant to 28 U.S.C. §

2255.” (Id., Document No. 664.) In support of his

Motion, Movant explained that “the Department of

Justice’s Office of Professional Responsibility [“OPR”]

is conducting an investigation into the conduct of the

App. 73

prosecutors in [Movant’s] case” and “the findings of

the OPR report are likely to add material information

to the subject matter of the Section 2255 Motion.” (Id.)

Movant stated that he expects that the OPR will issue

its reports in the near future and “the interest of

justice will be best served if [Movant] has the

opportunity to address that information in his

briefing.” (Id.) Movant further noted that he had

“learned of relevant new material as recently as April

6, 2018, and it is likely that more may come to light in

the coming weeks.” (Id.) Accordingly, Movant

requested an extension of time to file his

Memorandum in Support “until an appropriate date

after the OPR report has been issued.” (Id.)

By Order entered on April 23, 2018, the

undersigned granted Movant’s Motion for Extension

of Time, directed Movant to file his Memorandum in

Support of his Section 2255 Motion by June 4, 2018,

and directed the United States to file its Answer no

later than 45 days after the filing of Movant’s

Memorandum in Support. (Id., Document No. 667.)

On May 21, 2018, Movant filed a “Motion for In

Camera Review” of documents being withheld on

privilege grounds by the United States Attorney for

the Southern District of Virginia. (Id., Document No.

669.) The United States Attorney’s Office for the

Southern District of West Virginia was recused from

defending the Section 2255 Motion. Subsequently, the

undersigned granted an extension of time to the

United States for the filing of a response to Movant’s

“Motion for In Camera Review,” Movant for the filing

of his Memorandum in Support of his Section 2255

Motion, and the United States for the filing of its

Answer to Movant’s Section 2255 Motion. (Id.,

Document No. 674.)

App. 74

On June 21, 2018, Movant filed a “Motion to

Conduct Discovery.” (Id., Document No. 681.) The

United States filed its Response in Opposition on July

3, 2018, and Movant filed his Reply on July 13, 2018.

(Id., Document Nos. 685 and 686.) The undersigned

conducted an in-chambers informal conference

concerning Movant’s pending “Motion to Conduct

Discovery” on July 16, 2018. (Id., Document No. 689.)

Movant appeared via telephone, by counsel, Benjamin

L. Hatch, Howard C. Vick, Jr., Michael A. Baudinet,

and W. Henry Jernigan, Jr. The United States

appeared via telephone, by counsel, AUSA Douglas W.

Squires, AUSA Jessica H. Kim, and AUSA S. Courter

Shimeall. During the discussions, the parties reached

the following agreement to resolve the issues raised in

Movant’s above Motion:

1.

The United States will provide to Movant

the Department of Justice’s Office of

Professional Responsibility (“DOJ”) full

Report of Investigation, and documents

related to the DOJ’s review, by August 15,

2018.

2.

If the United States is unable to produce the

foregoing by August 15, 2018, the United

States must notify the Court of its inability

to comply by August 8, 2018. The United

States must further notify the Court of the

specific reasons for its inability to comply

with the August 15, 2018 deadline, and

provide the Court with a date certain for the

production of the foregoing documents.

3.

If Movant concludes his discovery request is

not satisfied after receipt and review of the

App. 75

above documents, Movant may file a new

Motion for Discovery.

(Id., Document No. 688.) The undersigned, therefore,

denied Movant’s “Motion to Conduct Discovery”

(Document No. 681) is as moot. (Id.)

The United States filed its Response to

Movant’s “Motion for In Camera Review” on July 30,

2018. (Id., Document No. 693.) Movant filed his Reply

on August 7, 2018. (Id., Document No. 696.) By Order

entered on August 8, 2018, the undersigned granted

in part and denied in part as moot Movant’s “Motion

for In Camera Review” (Document No. 669). (Id.,

Document No. 697.) Specifically, the undersigned

granted Movant’s Motion as to Document Nos. DLB001463, DLB-001464-77, DLB-001496-001501, and

DLB-001532, and denied as moot Movant’s Motion as

to all remaining documents. (Id.) Thus, the Court

directed the United States to produce the foregoing

documents for in camera review. (Id.) Subsequently,

the United States represented that it agreed to

release Document Nos. DLB-001463 and DLB001464-77 to Movant pursuant to the Court’s

Protective Order entered on July 27, 2018. (Id.,

Document No. 698.) The United States further stated

that Document Nos. DLB-001463 and DLB-001464-77

were sent via overnight mail to Movant’s counsel. (Id.)

Concerning DLB-001496-001501, the United States

states that it is amenable to disclosing the above

document with redactions to account for the privileged

communications. (Id.) The undersigned reviewed the

above document and determined that such contained

privileged attorney-client communications. (Id.)

Accordingly, the United States was ordered to produce

Document No. DLB-001496-001501, with redactions

of the privileged attorney-client communications, to

App. 76

Movant.

(Id.)

Concerning

DLB-001532,

the

undersigned determined that such did not contain

privileged attorney-client communicates and the

United States was ordered to produce Document No.

DLB-001532, without redaction, to Movant. (Id.)

On September 5, 2018, Movant filed

Memorandum in Support of his Section 2255 Motion.

(Id., Document Nos. 703 and 712-5.) As Exhibit,

Movant’s attaches copies of the pertinent evidence

that was withheld by the United States. (Id.,

Document Nos. 703-1 – 703-17.) On September 6,

2018, Movant filed his Amended Memorandum in

Support of his Section 2255 Motion. (Id., Document

Nos. 705 and 712-5.) First, Movant argues that the

United States suppressed material, exculpatory, and

impeachment evidence in violation of Brady and

Giglo. (Id., pp. 12 – 26.) Second, Movant claims that

the United States suppressed evidence in violation of

the Jencks Act and deprived Movant of due process.

(Id., pp. 26 – 28.) Finally, Movant asserts that the

United States violated the District Court’s discovery

Orders and committed prosecutorial misconduct. (Id.,

pp. 28 – 30.)

Movant also filed a “Motion for Evidentiary

Hearing.” (Id., Document No. 704-1.) Movant argued

that the existing record demonstrates that he is

entitled to relief under Section 2255. (Id.) Movant,

however, states that he requests an evidentiary

hearing if the Court is not inclined to grant him

Section 2255 relief based on the record. (Id.)

On November 16, 2018, the United States filed

its Consolidate Response in Opposition to Movant’s

Section 2255 Motion and Request for Evidentiary

Hearing. (Id., Document No. 728.) First, the United

App. 77

States argues that Movant’s Brady and Giglio claims

are meritless because the undisclosed favorable

evidence was not material. (Id., pp. 6 – 23.) Second,

the United States claims that the Jencks Act claim is

without merit because the statements were not

relevant to the witnesses’ testimony on direct

examination. (Id., pp. 23 – 35.) Third, the United

States

disputes

it

committed

prosecutorial

misconduct by failing to comply with the Court’s

discovery orders. (Id., pp. 35 – 37.) Finally, the United

States asserts there is no need for an evidentiary

hearing because the record conclusively shows

Movant is entitled to no relief. (Id., pp. 38 – 40.)

On November 30, 2018, Movant filed his

Consolidate Response in Opposition. (Id., Document

No. 731.) First, Movant states that “examples cited in

[Movant’s] Memorandum in Support illustrates

prejudice, but are not a comprehensive list of all the

favorable, material, undisclosed evidence.” (Id., pp. 7

– 9.) Second, Movant disputes that he suffered no

prejudice because the evidence against him at trial

was “strong” or “overwhelming.” (Id., pp. 9 – 11.)

Third, Movant argues that the “undisclosed MSHA

evidence supported [his] defense theory.” (Id., pp. 11 –

16.) Fourth, Movant claims that the “undisclosed MOI

would have led to the identification of potential

defense witnesses.” (Id., pp. 16 – 21.) Fifth, Movant

argues that “undisclosed MOI would have led to

impeachment of key witnesses.” (Id., pp. 21 – 23.)

Sixth, Movant asserts that “the facts in this case

demonstrate bad faith sufficient to support reversal

for Jencks Act violations.” (Id., pp. 23 – 24.) Seventh,

Movant contends that this Court “should make its

own factual determinations at an evidentiary

hearing.” (Id., pp. 24 – 26.) Finally, Movant claims

App. 78

“[t]his patent prosecutorial misconduct must be

remedied.” (Id., pp. 26 – 30.)

On July 31, 2019, Movant filed a “Motion for

Oral Argument.” (Id., Document No. 733.) Movant

states that he “seeks oral argument to support the

resolution of his 2255 Motion.” (Id.) Although Movant

acknowledges that he is not incarcerated, Movant

states that his conviction continues to cast “an

ongoing cloud over [Movant’s] professional and

personal life.” (Id.) Movant, therefore, requests “oral

argument on the 2255 Motion so that the parties may

present their arguments to the Court and respond to

any issues the Court may raise.” (Id.) On August 1,

2019, the United States filed its Response in

Opposition. (Id., Document No. 734.) The United

States notes that oral argument is not a matter of

right in a habeas case, materials needed to review the

motion are before the Court, and oral argument would

not aid in the decisional process. (Id.) On August 8,

2019, Movant filed his Reply arguing that “oral

argument may assist the Court in evaluating the facts

and legal issues of the matter.” (Id., Document No.

735.)

FACTUAL BACKGROUND

A coal mine explosion occurred at the UBB

mine on April 5, 2010, resulting in the tragic death of

29 miners. The UBB mine was owned and operated by

Massey Energy Company [“Massey”]. Movant was the

former chairman and chief executive officer of Massey.

In 2009 and 2010, Massey was repeatedly cited by

MSHA for violating requirements of the Mine Safety

and Health Act of 1977, 30 U.S.C. § 801, et seq. During

the jury trial, testimony was presented that MSHA

App. 79

issued UBB 466 violations in 2009, 480 violations in

2010, and UBB had the third most serious safety

violations in any mines in the United State for the

indictment period. Testimony was also presented that

Massey had the most violations in the United States

for 2009 and 2010. The United States argued that

Movant conspired with other Massey officials to

violate the mine safety laws in order to produce more

coal. The United States presented testimony that

there was an unspoken understanding at UBB that

safety violations were acceptable so long as the mine

was producing coal. The conspiracy involved the

advance warnings of mine inspectors, cheating on

dust samples, and the concealing of Mr. Ross’s safety

warnings by designing such as confidential. Coal

miners testified that they were required to work in

conditions known to be unsafe and without proper

ventilation. Following a six-week jury trial, Movant

was convicted of conspiring to violate mine safety laws

and acquitted of the remaining offenses. Prior to

returning a verdict, the jury deliberated for

approximately two weeks, twice informed the District

Judge that they could not agree on a verdict, and

received an Allen charge from the Court.

Following

Movant’s

conviction,

Movant

continued his quest for evidence allegedly suppressed

by the United States. In 2017, the United States

Attorney’s Office began sending Movant letters

enclosing materials previously suppressed. Movant

contends that the United States Attorney’s Office has

now produced more than 1,000 additional pages of

documents that should have been provided to Movant

prior to his criminal trial.

App. 80

DISCUSSION

The relevant portion of Section 2255 provides

as follows:

A prisoner in custody under sentence of

a court established by Act of Congress

claiming the right to be released upon

the ground that the sentence was

imposed in violation of the Constitution

or laws of the United States, or that the

court was without jurisdiction to

impose such sentence, or that the

sentence was in excess of the maximum

authorized by law, or is otherwise

subject to collateral attack, may move

the court which imposed the sentence

to vacate, set aside or correct the

sentence.

A motion made pursuant to Section 2255 is a

collateral attack on a conviction or sentence. To

succeed on a Section 2255 motion, the movant must

prove that “his sentence or conviction was imposed in

violation of the Constitution or law of the United

States, that the court was without jurisdiction to

impose such a sentence, that the sentence exceeded

the maximum authorized by law, or that the sentence

otherwise is subject to collateral attack.” 28 U.S.C. §

2255. “A motion collaterally attacking a petitioner’s

sentence brought pursuant to § 2255 requires the

petitioner to establish his grounds by a preponderance

of the evidence.” Sutton v. United States, 2006 WL

36859, * 2 (E.D.Va. Jan. 4, 2006).

Movant argues that the United States failed to

disclose numerous pieces of materially favorable

App. 81

exculpatory evidence under Brady v. Maryland, 373

U.S. 83, 83 S.Ct. 1194, 1196-97, 10 L.Ed.2d 215

(1963), and material impeachment evidence under

Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31

L.Ed.2d 104 (1972). It is well established that “the

suppression by the prosecution of evidence favorable

to an accused upon request violates due process where

the evidence is material either to guilt or to

punishment, irrespective of the good faith or bad faith

of the prosecution.” Brady v. Maryland, 373 U.S. 83,

87, 83 S.Ct. 1194, 1196-97, 10 L.Ed.2d 215 (1963). In

United States v. Agurs, 427 U.S. 97, 111, 96 S.Ct.

2392, 2401, 49 L.Ed.2d 342 (1976), the Supreme Court

clarified the prosecutor’s duty to require disclosure of

favorable evidence to the defense, even if not

requested. This duty encompasses impeachment

evidence (often referred to as “Giglio material”),

exculpatory evidence, and evidence “known only to

police investigators and not to the prosecutor.” Kyles

v. Whitley, 514 U.S. 419, 438, 115 S.Ct. 1555, 156768, 131 L.Ed.2d 490 (1995). A prosecutor, however,

does not have a “constitutional duty routinely to

deliver his entire file to defense counsel.” United

States v. Agurs, 427 U.S. 97, 111, 96 S.Ct. 2392, 2401,

49 L.Ed.2d 342 (1976); also see Kyles, 514 U.S. 419,

437, 115 S.Ct. at 1567(“[T]he rule in Bagley (and,

hence, in Brady) requires less of the prosecution than

the ABA Standards for Criminal Justice.) If the

prosecution suppresses Brady material, the disclosure

of which would have in all reasonable probability

resulted in a different outcome, then the mandates of

due process are violated. See United States v. Bagley,

473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985);

Brady v. Maryland, 373 U.S. at 87, 83 S.Ct. at 119697.

App. 82

To state a valid Brady claim, the evidence

“must be favorable to the accused, either because it is

exculpatory, or because it is impeaching, [the]

evidence must have been suppressed by the State,

either willfully or inadvertently,” and the evidence

must have been material to the verdict such that its

suppression prejudiced the defense. Strickler v.

Greene, 527 U.S. 263, 281-82, 119 S.Ct. 1936, 1948,

144 L.Ed.2d 286 (1999); Monroe v. Angelone, 323 F.3d

286, 299-300 (4th Cir.2003). Suppressed evidence is

“information which had been known to the

prosecution but unknown to the defense.” Agurs, 427

U.S. at 103, 96 S.Ct. 2392. “Evidence is ‘exculpatory’

and ‘favorable’ if it ‘may make the difference between

conviction and acquittal’ had it been ‘disclosed and

used effectively.’” United States v. Wilson, 624 F.3d

640, 661 (4th Cir. 2010(citing Bagley, 473 U.S. at 676,

105 S.Ct. at 3375)). Concerning materiality, the

Supreme Court emphasized three aspects. Kyles, 514

U.S. at 434, 115 S.Ct. at 1565. First, the Supreme

Court stressed that “a showing of materially does not

require demonstration by a preponderance that

disclosure of the suppressed evidence would have

resulted ultimately in the defendant’s acquittal.” Id.,

514 U.S. at 434, 115 S.Ct. at 1566(Bagley’s touchstone

of materiality is a ‘reasonable probability’ of a

different result, and the adjective is important.”)

Stated another way, “[t]he question is not whether the

defendant would more likely than not have received a

different verdict with the evidence, but whether in its

absence he received a fair trial, understood as a trial

resulting in a verdict worthy of confidence.” Id.

Therefore, a “reasonable probability” is shown when

the suppression of evidence “undermines confidence

in the outcome of the trial.” Id. Second, the Supreme

Court emphasizes that when considering materiality,

App. 83

there is not a sufficiency of the evidence test. Id. The

Supreme Court explained that “[a] defendant need not

demonstrate that after discounting the inculpatory

evidence in light of the undisclosed evidence, there

would not have been enough left to convict.” Id., 514

U.S. at 434-35, 115 S.Ct. at 1566. Again, a defendant

must only show that the favorable evidence “could

reasonably be taken to put the whole case in such a

different light as to undermine confidence in the

verdict.” Id. Finally, the Supreme Court stressed that

the question of materiality must be considered

“collectively, not item by item.” Id. at 436, 115 S.Ct. at

1567(noting that it was debatable whether lower court

assessed the “cumulative effect of the evidence”

because the court’s decision contained repeated

references dismissing particular items of evidence as

immaterial, thereby suggesting that cumulative

materiality was not the touchstone).

It is undisputed that the United States failed to

produce to Movant, prior to trial, 61 Memoranda of

Interviews (“MOIs”) written by law enforcement

agents. (Criminal Action No. 5:14-cr-00244,

Document No. 728, p. 5 and Document No. 712-6, p.

2.) Eleven of the MOIs pertained to pre-indictment

interviews and 50 pertained to post-indictment

interviews. (Id.) Movant further argues that the

United States failed to produce MSHA material

including emails and disciplinary records. (Id.,

Document No. 712-5, pp. 7 - 8, 13 – 17.) In Response,

the United States states that for purpose of the

Motion, it does not dispute that the Government

suppressed documents. (Id., Document No. 728, p. 6.)

Therefore, the undersigned, must consider whether

the suppressed documents were (1) favorable to

Movant either because the documents were

App. 84

exculpatory or impeaching, and (2) material to the

verdict such that the suppression prejudiced Movant’s

defense. The cumulative effective of all suppressed

evidence favorable to a defendant must be considered,

rather than considering each item of evidence

individually. As discussed in Kyles, a court must

consider the cumulative effective of all suppressed

evidence favorable to a defendant rather than

considering each item of evidence individually. Kyles,

514 U.S. at 436, 115 S.Ct. at 1567. Thus, the

cumulative effective requirement applies to the

materiality element - - not the favorability element.

The undersigned, therefore, will first determine

whether the suppressed evidence individually was

favorable

to

Movant.

Once

making

this

determination, the undersigned will consider the

cumulative effective of all suppressed evidence

favorable to Movant.

1.

Issue of Favorability of Suppressed Evidence:

A.

MSHA Evidence:

First, Movant argues that suppressed MSHA

material included emails and disciplinary records that

were “incredibly favorable to [Movant] and would

have provided significant support for his defense at

trial on multiple issues.” (Criminal Action No. 5:1400244, Document 712-5, p.13.) Movant states that

“[t]hese materials could have caused the defense to

change its decision and present a case, including by

presenting the compelling point that [Movant] was

subject to criminal prosecution when MSHA officials

were given a slap on the wrist for their own conduct.”

(Id.) Movant further alleges that evidence obtained

since trial supports Movant’s claim that a MSHA

App. 85

official altered and destroyed documents that “likely

contained additional exculpatory and impeachment

information.” (Id., pp. 13 – 14.) Although Movant

stresses that his examples are not inclusive of all

favorable, material, undisclosed evidence, Movant

contends that he has provided examples sufficient to

prove a Brady violation. (Id.) As stated above, the

undersigned will consider each example of suppressed

evidence to determine if such was favorable to

Movant:

i.

Advance Notice:

As his first example, Movant argues that the

suppressed MSHA material would have supported

Movant’s defense that Massey’s practice of informing

miners when inspectors arrived at the mine did not

constitute illegal advance notice. (Id., Document No.

712-5, p. 14.) Movant contends that suppressed

internal emails reveal that MSHA officials were

conflicted as to whether Massey’s practice constituted

an improper advanced notice. (Id., citing Document

No. 663-5, pp. 44 -45, Page ID No. 23408,

USAO0000030.) Movant further notes that the emails

exhibited the “tremendous discretion and uncertainty

inherent in the decision to issue a citation.” (Id., p. 14.)

Movant acknowledges that he made some of the points

during trial through former Massey employees, but

Movant argues that MSHA evidence would have

provided independent corroboration. (Id.) Movant

notes that independent corroboration of a defense

theory is not cumulative testimony or evidence and

can undermine the confidence in a verdict. (Id., pp. 14

– 15.)

App. 86

In Response, the United States argues that the

“MSHA materials neither relate to the [Movant’s]

criminal charges, nor would they have led to evidence

that would have supported this defense.” (Id.,

Document No. 728, p. 8.) First, the United States

contends that the email chain between MSHA officials

discussing advance notice is irrelevant because

Movant was acquitted of this aspect of Count One.

(Id., p. 9.) The United States further notes that the

email is irrelevant because it occurred on January 24,

2012, which was after the period of time in issue in

the Superseding Indictment (“Beginning no later than

January 1, 2008 and continuing through April 9, 2010

. . .”). (Id.)

In Reply, Movant disputes the United States’

argument that the MSHA email (USAO0000030) was

irrelevant because such was dated after the

indictment period. (Id., Document No. 731, p. 11.)

Movant argues that it is immaterial that the email

discussion took place after the indictment period so

long as the email discusses relevant information. (Id.,

pp. 11 – 12.) Movant maintains that the emails

involved discussions among MSHA investigators as to

events occurring at UBB during the indictment

period, which were relevant and discoverable. (Id., p.

12.) Movant further argues that suppressed evidence

regarding advanced notice was relevant and

prejudicial despite his acquittal on the second object

of the conspiracy count. (Id., p. 13.) Movant explains

that “evidence expressly rebutting a key aspect of the

prosecution’s theory undermines the theory as a

whole.” (Id.) Specifically, Movant explains that the

United States proceeded on the theory that Movant’s

emphasis on “production over safety” led miners to

provide illegal advanced notice to cover up violations

App. 87

at UBB. (Id.) Movant contends that even though the

jury did not convict him on this object of the

conspiracy, the jury could have considered the

evidence relevant to the conspiracy to violate mine

regulations. (Id.) Movant notes that “evidence from

MSHA itself that inspectors did not consider this to be

an illegal or improper practice would have

undermined the entire tenor of this theory.” (Id.)

The undersigned first finds that the suppressed

emails regarding advance notice are not rendered

irrelevant merely because the emails were composed

on January 24, 2012, which was outside the

indictment period (January 1, 2008 through April 9,

2010). Movant maintains that the emails involved

discussions among MSHA investigators as to events

occurring at UBB during the indictment period, which

was relevant and discoverable. The Court agrees.

Next, the undersigned will consider whether the

advance notice emails were favorable despite

Movant’s acquittal on this object of the conspiracy as

to Count One. In Count One, Movant was charged

with a conspiracy involving two objects: (1) willfully

violating mandatory mine health and safety

standards; and (2) defrauding an agency of the United

States (MSHA). Movant was acquitted of the

conspiracy object of defrauding MSHA. (Criminal

Action No. 5:14-00244, Document No. 529.) Movant,

however, was convicted of conspiring to violate the

mandatory mine health and safety standards. (Id.) At

trial, the United States proceeded on the theory that

Movant’s knowledge and participation in advance

notice was both (1) fraud on the Department of Labor

and MSHA and (2) evidence of Movant’s knowledge

and participation in a conspiracy to violate the mine

safety regulations. (Criminal Action No. 5:14-00244,

App. 88

Document No. 626, pp. 75 – 79, Page ID Nos. 2164145.) The United States argued that “[t]he goal of

defendant’s conspiracy was to violate the mine health

and safety laws in order to run more coal. And to do

this, he engaged in a relentless campaign of

obstruction. The Defendant’s conspiracy engaged in a

system of advance warnings to tip off the members

underground to hide surely thousands more violations

that were not ever able to be caught by inspectors.”

(Id., Document No. 626, p. 50, Page ID No. 21616.) The

United States further argued that “providing advance

warning of an inspector’s presence is illegal in and of

itself.” (Id., p. 77.) The United States presented

testimony from numerous witnesses (Smith, Racer,

Justice, Hughart, Hutchen, Ellison, Stewart, and

Blanchard) that Movant encouraged the practice of

providing notice of an inspector’s presence at the mine

so that mine safety violations could be hide or avoided.

(Id.) The suppressed MSHA email chain revealing

that MSHA officials were conflicted as to whether

Massey’s practice constituted an improper advanced

notice is favorable to Movant. Although the jury

acquitted Movant of the conspiracy charge where the

object involved defrauding MSHA, it is certainly

reasonable that the jury could have at least partially

relied upon the alleged advance notice in concluding

that Movant conspired to violate mandatory mine

health and safety standards. Accordingly, the

undersigned finds that MSHA email involving

advance notice (Criminal Action No 5:14-00244,

Document No. 663-5, pp. 44 - 45, Page ID No. 23408,

USAO0000030) is favorable to Movant.

App. 89

ii.

MSHA Bias:

(a)

Movant’s Arguments:

Movant argues that the suppressed MSHA

material would have supported Movant’s defense that

a MSHA citation does not necessarily reflect an actual

violation of a mine safety law. (Criminal Action No.

5:14-00244, Document No. 712-5, p. 15.) Movant again

claims that because the decision to issue a MSHA

citation involves significant discretion, such could not

form a basis for a conviction of violating mine safety

law. (Id.) Movant concludes that the suppressed

MSHA documents would have supported his defense

by showing the following: (1) MSHA issued citations,

and resisted challenges to citations, even in cases

where there was insufficient proof of a violation; (2)

MSHA employees were biased against Massey and

Movant; and (3) MSHA inspectors often disagreed

concerning what constituted a violation. (Id.) In

support, Movant first references an email from a

MSHA attorney discussing several citations issued to

UBB. (Id., citing Document No. 663-6, p. 55, Page ID

No. 23527, USAO0000114.) Movant contends that the

MSHA attorney noted that one citation could not be

sustained and must be vacated. (Id.) Movant claims

that the MSHA attorney “writes further that more

information would be needed to sustain two other

citations if Massey pressed its challenge, but notes

that MSHA still would not vacate those citations.”

(Id.) Movant states that this email “provided crucial

evidence explaining why [he] often considered MSHA

citations the ‘cost of doing business’ and chose not to

challenge them on the merits.” (Id.)

App. 90

Second, Movant references an email from a

MSHA employee pointing out a “potential violation”

at UBB, stating that one section “seem[ed] to be

mining” but written notice was not provided for two

weeks. (Id., citing Document No. 663-5, p. 40, Page ID

No. 23404, USAO0000028.) The responding email

stated as follows: “Sounds like a violation is in order.

Let Norman know about it and I am sure he will be

more than happy to give them one more piece of

paper.” (Id.) Movant contends that the foregoing

emails demonstrate “MSHA’s willingness to issue

citations without sufficient proof that the underlying

violation occurred, as well as its bias against Massey

and [Movant].” (Id., p. 16.)

Finally, Movant references several other emails

that he claims “paint[s] an even more compelling

picture of this bias.” (Id.) In response to a draft press

release, MSHA Mine Administrator Kevin Stricklin

stated as follows: “My only comment is to put a dagger

into [M]assey.” (Id., citing Document No. 663-5, p.

663-5, Page ID No. 49, USAO0000033.) Movant states

that Mine Administrator Stricklin was “one of the

MSHA employees later disciplined in connection with

UBB. (Id.) In another email, a MSHA employee stated

as follows: “I hope that [Movant] and Glenn Beck get

raped by a rhinoceros. Horn end.” (Id., citing

Document No. 663-6, p. 49, Page ID No. 23521,

USAO0000109.) In a final email, Movant states that

a DOL official reported Movant’s indictment to the

Secretary of Labor stating “And sometimes bad things

happen to bad people.” (Id., citing Document No. 6962, p. 1, Page ID No. 23797, DLB-001532.) Therefore,

Movant alleges that the foregoing undermines

MSHA’s credibility and the citation process. (Id.)

App. 91

(b)

United States’ Arguments:

In Response, the United States disputes that

the MSHA attorney-client communication regarding a

settlement in an administrative matter shows that

Movant was not acting willfully. (Id., Document No.

728, p. 9, citing Document No. 663-6, p. 55, Page ID

No. 23527, USAO0000114.) The United States

explains that his communication does not undermine

the evidence and testimony presented exhibiting that

there were 836 violations issued to UBB from January

2008 to April 2010, and that Movant had knowledge

regarding the violations. (Id.) Specifically, the United

States notes that during trial Blanchard, Ross, and

Davis testified that Movant received daily violation

reports. (Id., citing Document No. 614, p. (19210),

Document No. 618, p. 19848, 19854-55, 19855, 1993537, Document No. 602, p. 16509, 16513-17.)

Furthermore, the United States asserts that mere

reckless disregard was sufficient mens rea to support

Movant’s conviction. (Id., pp. 9 – 10.)

Furthermore, the United States disputes that

the additional emails exhibit agency bias. (Id., p. 10.)

The United States explains that the email referenced

by Movant involving a “potential violation” and giving

UBB “one more piece of paper” was regarding a single

citation and the email was sent during the MSHA

accident investigation in 2011. (Id., citing Document

No. 663-5, p. 40, Page ID No. 23404, USAO0000028.)

The United States claims that email is irrelevant

because it was composed in 2011, outside the

indictment period. (Id.) The United States further

argues the email is not favorable because it involves a

citation to UBB and the email cites specific records

documenting the actual violation. (Id.) The United

App. 92

States asserts that MSHA employees’ willingness to

cite UBB for documented violations does not

demonstrate bias.” (Id.) Regarding the other four

emails, the United States argues that none support

Movant’s theory of agency bias. (Id.) The United

States claims that the email from Mine Administrator

Stricklin (“….put a dagger into [M]assey”) was “a

single intemperate comment from a MSHA employee

shortly after the tragedy at UBB that does not show

wide-spread bias.” (Id., p. 10, citing Document No.

663-5, p. 49, Page ID No. 23413, USAO0000033.) The

United States further noted that “the response from

the DOL assistance secretary redirected the focus to

“presenting the facts [about the tragedy] in a

responsibly way.” (Id.) The United States claims that

another email was not favorable to Movant’s defense

because it involved a profane statement (“raped by a

rhinoceros”) from a “MSHA employee with no

apparent enforcement connection to UBB” and an

employee from a private sector. (Id., citing Document

No. 663-6, p. 49, Page ID No. 23521, USAO0000109.)

The United States explains that the email involving

the Secretary of Labor was not favorable to Movant’s

defense because the email was composed after

Movant’s indictment, “and therefore has no relation to

any possible pre-indictment MSHA enforcement

bias.” (Id., pp. 10 – 11, citing Document No. 696-2, p.

1, Page ID No. 23797, DLB-001532.)

Finally, the United States stresses that none of

the individuals on the above emails were employed by

the Department of Justice or involved in the criminal

investigation. (Id.) The United States argues that

“[a]lthough [Movant] claims that these emails could

have undermined MSHA’s credibility, he ignores that

this matter was not brought by MSHA, and did not

App. 93

rely solely on testimony from MSHA employees.” (Id.)

The United States contends that given the “egregious

pattern of 836 violations during the charged period[,]

. . . [f]our isolated emails from people not involved in

the criminal case do not refute a large volume of

evidence of properly issued citations against UBB.”

(Id.)

(c)

Movant’s Reply Arguments:

In Reply, Movant disputes the United States’

argument that the MSHA emails (USAO0000028 and

32) were irrelevant because such were dated after the

indictment period. (Id., Document No. 731, p. 11.)

Movant argues that it is immaterial that the email

discussion took place after the indictment period so

long as the email discusses relevant information. (Id.,

pp. 11 – 12.) Movant maintains that the emails

involved discussions among MSHA investigators as to

events occurring at UBB during the indictment

period, which were relevant and discoverable. (Id., p.

12.) Second, Movant disputes the United States’

argument that evidence that would “undercut” the

number of violations issued by MSHA is irrelevant.

(Id.) Movant notes that the United States proceeded

on the theory that Movant had an “egregious pattern

of 836 violations” at UBB. (Id.) Movant argues that his

“unimpeachable evidence . . . undermined the

prosecutors’ narrative that the number of violations

actually reflected an ‘egregious pattern.’” (Id.) Third,

Movant argues that the internal MSHA email reveals

that the investigator was instructed to issue a citation

even though he identified only a “potential” violation.

(Id.) Movant argues that this email was favorable and

App. 94

relevant to allow Movant to question the investigator

as to the reasoning for issuing the citation. (Id., p. 13.)

Finally, Movant argues that “MSHA was

intimately involved in this prosecution.” (Id., p. 14.)

Movant, therefore, contends that the emails

exhibiting bias by MSHA is relevant. (Id.) Movant

notes that “the prosecution team itself consisted of a

Department of Labor Office of the Inspector General

Special Agent and ‘DOL attorneys, several of whom

were appointed as Special AUSAs for the Blankenship

trial.’” (Id., p. 14 citing OPR 00012 and Document Nos.

397 and 398.) Movant states that a DOL special agent

participated in a number of the MOI interviews. (Id.)

Movant also states that “according to [former AUSA]

Ruby, the prosecutors relied on DOL and MSHA to

determine what documents were exculpatory and

should be disclosed to the defense. (Id., citing OPR

000121-22). Movant concludes that MSHA “was

clearly part of the prosecution team in this case” and

evidence of bias by MSHA was relevant. (Id.)

Specifically, Movant argues that evidence exhibiting

bias by MSHA was relevant to the jury’s determinate

as to whether such bias affected how inspectors and

their supervisors treated citations to UBB, and to any

effect on the subsequent investigation and charges

brought by the United States against Movant. (Id.)

(d)

Court’s Findings:

Concerning Movant’s reference to an email

from a MSHA attorney discussing several citations

issued to UBB, the undersigned finds such is

favorable to Movant. (Criminal Action No. 5:14-cr00224, Document No. 663-6, p. 55, Page ID No. 23527,

USAO0000114.) As Movant notes, the email indicates

App. 95

that MSHA counsel was aware that one citation

(Citation 7261300/air quality) could not be sustained

if challenged by Movant. (Id.) MSHA counsel noted

that Movant had challenged citation, and thus,

counsel recommended that the citation be vacated.

The foregoing indicates that although MSHA was

aware the citation could not be sustained, such would

not have been vacated unless challenged by Movant.

(Id.) As to citation 7278775 (protection from roof and

rib falls), MSHA counsel indicates that the

seriousness of the citation might need to be

reconsidered due to the lack of information provided

by the mine inspector. (Id.) MSHA counsel, however,

recommended Movant’s challenge to the citation be

denied. (Id.) Concerning the foregoing email, Movant

states that this email “provided crucial evidence

explaining why [Movant] often considered MSHA

citations the ‘cost of doing business’ and chose not to

challenge them on the merits.” (Id.) The undersigned

finds that the foregoing email is favorable to Movant.

(Criminal Action No. 5:14-cr-00224, Document No.

663-6, p. 55, Page ID No. 23527, USAO0000114.) The

United States clearly relied upon reference to MSHA

citations in support of its argument that Movant

conspired to violate mine safety standards. The

United States presented testimony that Massey was

issued more safety violations than any other mines in

the United States for 2009 and 2010. The forgoing

email indicates that MSHA inspectors issued citations

to Massey without providing sufficient evidence to

support the citation, or that could not be sustained if

challenged.

Concerning the email from the MSHA

employee pointing out a violation at UBB, and the

responding email that Norman “will be more than

App. 96

happy to give them one more piece of paper” is not

favorable to Movant. (Criminal Action No. 5:14-00244,

Document No. 663-5, p. 40, Page ID No. 23404,

USAO0000028.) In the foregoing email, a MSHA

employee notes a potential violation and states

evidence supporting such. (Id.) In response, another

MSHA employee states that a violation is in order and

“Let Norman know about it and I am sure he will be

more than happy to give them one more piece of

paper.” (Id.) Despite Movant’s allegations to the

contrary, the foregoing does not provide favorable

evidence. The email contains evidence supporting the

basis for the violation. Although the email indicates

that a certain MSHA employee would be “happy to

give [Movant and Massey] one more piece of paper,”

such does not reveal agency bias because the email

clearly provides evidence supporting the issuance of a

violation. Accordingly, the foregoing email is not

favorable to Movant. (Criminal Action No. 5:14-00244,

Document No. 663-5, p. 40, Page ID No. 23404,

USAO0000028.)

Concerning the email from Mine Administrator

Stricklin (“….put a dagger into [M]assey”), the

undersigned finds that such is favorable to Movant.

(Criminal Action No. 514-00244, p. 10, citing

Document No. 663-5, p. 49, Page ID No. 23413,

USAO0000033.) Although the response from the DOL

assistant secretary redirected the focus to “presenting

the facts to the public in a responsible way,” such does

indicate a bias towards Massey or Movant.

Concerning the email from the MSHA employee to an

employee of a private sector (stating he hoped Movant

was “raped by a rhinoceros”), the undersigned finds

that such is favorable to Movant to show bias by a

MSHA employee. (Criminal Action No. 5:14-00244,

App. 97

Document No. 663-6, p. 49, Page ID No. 23521;

USAO0000109.) Although the United States argues

that this MSHA employee had “no apparent

enforcement connection to UBB,” Movant contends

that certain MSHA employees were involved in his

prosecution and bias by a MSHA employees is

relevant. The undersigned agrees. Concerning the

email from a DOL official reporting Movant’s

indictment to the Secretary of Labor stating “And

sometimes bad things happen to bad people,” the

undersigned find such is favorable to Movant. (Id.,

Document No. 696-2, p. 1, Page ID No. 23797; DLB001532.) Again, the undersigned finds that the

forgoing indicates bias toward Movant and such was

favorable to his defense.

According, the undersigned finds that the

following emails were favorable to Movant: (1)

USAO0000114 (Criminal Action No. 5:14-cr-00224,

Document No. 663-6, p. 55, Page ID No. 23527.); (2)

USAO0000033 (Criminal Action No. 5:14-00244, p.

10, citing Document No. 663-5, p. 49, Page ID No.

23413.); (3) USAO0000109 (Criminal Action No. 5:1400244, Document No. 663-6, p. 49, Page ID No.

23521.); and (4) DLB-001532 (Criminal Action No.

5:14-00244, Document No. 696-2, p. 1, Page ID No.

23797.) The undersigned finds that USAO0000028 is

not favorable to Movant. (Criminal Action No. 5:1400244, Document No. 663-5, p. 40, Page ID No. 23404;

USAO0000028.)

iii.

MSHA Disciplinary Documents:

Finally, Movant argues that disciplinary

records

concerning

MSHA

employees

were

suppressed. (Criminal Action No. 5:14-00244,

App. 98

Document No. 712-5, pp. 16 – 17.) Movant claims that

the MSHA employment records show that “MSHA

employees responsible for oversight of the UBB mine

during the period the indictment were subject to

disciplinary action including for their failure to

consider the interaction between the mine dust and

the ventilation plans MSHA required at the UBB

mine.” (Id., p. 16, citing Document Nos. 663-6, pp. 78

– 83, 91 - 96, 101 - 106 and Document No. 669-1.)

Thus, Movant argues “[t]his evidence would have

supported a key defense argument: the MSHArequired and approved ventilation plan – not some

criminal conspiracy – actually caused many of the

violations for which the government sought to hold

[Movant] responsible.” (Id.) Movant further states

that in an undisclosed email one MSHA employee

“chastises another [stating] ‘you told Lynn that the

Internal Review report still made it appear that

MSHA was responsible for a defective ventilation plan

at UBB. (It would have been really good if you had told

me that, since I am the one who can fix it.)’” (Id., p. 17,

citing Document No. 663-5, p. 34, Page ID No. 23398,

USAO0000024.) Movant argue that the foregoing is

“independent evidence” supporting his defense that

“could have opened a number of avenues for further

inquiry.” (Id.)

In Response, the United States disputes that

the disciplinary actions taken by MSHA against

MSHA employees was favorable to Movant. (Id.,

Document No. 728, pp. 11 – 12.) The United States

disagrees that the disciplinary letters demonstrate

that MSHA caused many of the violations Movant was

held accountable. (Id., p. 11.) The United Sta

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