Opposition Brief — Donald L. Blankenship, Petitioner v. United States

No. 21-1428

In the Supreme Court of the United States

DONALD L. BLANKENSHIP, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

ELIZABETH B. PRELOGAR

Solicitor General

Counsel of Record

KENNETH A. POLITE, JR.

Assistant Attorney General

THOMAS E. BOOTH

Attorney

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

QUESTION PRESENTED

Whether the court of appeals erred in determining

that petitioner was not entitled to vacatur of his conviction under Brady v. Maryland, 373 U.S. 83 (1963), on

the ground that he had not satisfied the requirement to

show a reasonable probability that the pretrial disclosure of additional materials would have affected the outcome of his case.

(I)

TABLE OF CONTENTS

Page

Opinions below .............................................................................. 1

Jurisdiction .................................................................................... 1

Statement ...................................................................................... 1

Argument....................................................................................... 8

Conclusion ................................................................................... 24

TABLE OF AUTHORITIES

Cases:

Allen v. Lee, 366 F.3d 319 (4th Cir.), cert. denied,

543 U.S. 906, and 543 U.S. 919 (2004) ............................... 11

Banks v. Dretke, 540 U.S. 668 (2004) ................................... 12

Banks v. Reynolds, 54 F.3d 1508 (10th Cir. 1995) ....... 16, 17

Bell v. Bell, 512 F.3d 223 (6th Cir.), cert. denied,

555 U.S. 822 (2008).............................................................. 21

Brady v. Maryland, 373 U.S. 83 (1963) ........................ 6, 8, 9

Camm v. Faith, 937 F.3d 1096 (7th Cir. 2019) ................... 15

Cazares v. United States, 552 U.S. 1056 (2007) .................... 9

Commonwealth v. Tucceri, 589 N.E.2d 1216

(Mass. 1992) ......................................................................... 21

Cunningham v. Wong, 704 F.3d 1143 (9th Cir.),

cert. denied, 571 U.S. 867 (2013) ....................................... 18

Dennis v. Secretary, 834 F.3d 263 (3d Cir. 2016) ......... 19, 20

Fontenot v. Crow, 4 F.4th 982 (10th Cir. 2021),

cert. denied, 142 S. Ct. 2777 (2022) ................................... 17

Georgiou v. United States, 577 U.S. 954 (2015).................... 9

Giles v. Maryland, 386 U.S. 66 (1967)................................. 10

Graver Tank & Mfg. Co. v. Linde Air Prods. Co.,

336 U.S. 271 (1949).............................................................. 14

(III)

IV

Cases—Continued:

Page

Guidry v. Lumpkin:

2 F.4th 472 (5th Cir. 2021), cert. denied,

142 S. Ct. 1212 (2022) ................................................ 15

142 S. Ct. 1212 (2022) ........................................................ 9

Kyles v. Whitley, 514 U.S. 419 (1995) ........................ 9, 13, 14

Lewis v. Connecticut Comm’r of Corrs.,

790 F.3d 109 (2d Cir. 2015) .......................................... 18, 19

Metz v. United States, 527 U.S. 1039 (1999) ......................... 9

People v. Bueno, 409 P.3d 320 (Colo. 2018)......................... 21

People v. Chenault, 845 N.W.2d 731 (Mich. 2014).............. 21

Raley v. Ylst, 470 F.3d 792 (9th Cir. 2006),

cert. denied, 552 U.S. 833 (2007) ....................................... 18

Rigas v. United States, 562 U.S. 947 (2010) ......................... 9

Rhoades v. Henry, 638 F.3d 1027 (9th Cir.),

cert. denied, 565 U.S. 946 (2011) ....................................... 18

Schledwitz v. United States, 519 U.S. 948 (1996) ................. 9

Sealed Case No. 99-3096 (Brady Obligations),

In re, 185 F.3d 887 (D.C. Cir. 1999) .................................. 20

State v. Bethel, No. 2020-648, 2022 WL 838337

(Ohio 2022) ........................................................................... 22

State v. Durant, 844 S.E.2d 49 (S.C. 2020),

cert. denied, 141 S. Ct. 1423 (2021) ................................... 22

State v. Reinert, 419 P.3d 662 (Mont. 2018) ........................ 21

State v. Wayerski, 922 N.W.2d 468 (Wis. 2019).................. 22

State v. Williams, 896 A.2d 973 (Md. 2006) ........................ 21

Strickler v. Greene, 527 U.S. 263 (1999) .............................. 12

United States v. Agurs, 427 U.S. 97 (1976) ......................... 10

United States v. Anwar, 880 F.3d 958 (8th Cir. 2018) ....... 15

United States v. Bagley, 473 U.S. 667 (1985).................. 9, 13

United States v. Bond, 552 F.3d 1092 (9th Cir. 2009) ........ 18

United States v. Diaz, 922 F.2d 998 (2d Cir. 1990),

cert. denied, 500 U.S. 925 (1991) ....................................... 19

V

Cases—Continued:

Page

United States v. Howell, 231 F.3d 615 (9th Cir. 2000),

cert. denied, 534 U.S. 831 (2001) ................................. 17, 18

United States v. Paulino, 445 F.3d 211 (2d Cir.),

cert. denied, 549 U.S. 980 (2006) ................................. 11, 19

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

cert. denied, 546 U.S. 1137 (2006) ..................................... 20

United States v. Quintanilla, 193 F.3d 1139

(10th Cir. 1999), cert. denied, 529 U.S. 1029 (2000) ......... 17

United States v. Robinson, 560 F.2d 507

(2d Cir. 1977), cert. denied, 435 U.S. 905 (1978) .............. 19

United States v. Stein, 846 F.3d 1135 (11th Cir.),

cert. denied, 138 S. Ct. 556 (2017) ..................................... 15

United States v. Tavera, 719 F.3d 705 (6th Cir. 2013) ....... 20

United States v. Therrien, 847 F.3d 9 (1st Cir.),

cert. denied, 137 S. Ct. 2227 (2017) ................................... 15

United States v. Wilson, 787 F.2d 375 (8th Cir.),

cert. denied, 479 U.S. 857 and 479 U.S. 865 (1986).......... 12

United States v. Wolf, 839 F.2d 1387 (10th Cir.),

cert. denied, 488 U.S. 923 (1988) ....................................... 17

Walker v. United States, 139 S. Ct. 1168 (2019) ................... 9

Yates v. United States, 139 S. Ct. 1166 (2019) ...................... 9

Constitution, statutes, and rule:

U.S. Const. Amend. V (Due Process Clause) ....................... 6

Federal Mine Safety and Health Act of 1977,

30 U.S.C. 801 et seq. .............................................................. 2

30 U.S.C. 820(d) ............................................................. 2, 4

15 U.S.C. 78ff ........................................................................... 2

18 U.S.C. 371 ............................................................................ 2

18 U.S.C. 1001 .......................................................................... 2

28 U.S.C. 2255 ...................................................................... 2, 6

Sup. Ct. R. 10 ......................................................................... 14

In the Supreme Court of the United States

No. 21-1428

DONALD L. BLANKENSHIP, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1-21)

is reported at 19 F.4th 685. A prior decision of the court

of appeals is reported at 846 F.3d 663. The opinion of

the district court (Pet. App. 22-66) is not published in

the Federal Supplement but is available at 2020 WL

247313.

JURISDICTION

The judgment of the court of appeals was entered on

December 7, 2021. A petition for rehearing was denied

on February 4, 2022 (Pet. App. 139). The petition for a

writ of certiorari was filed on May 5, 2022. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

Following a jury trial in the United States District

Court for the Southern District of West Virginia,

(1)

2

petitioner was convicted on one count of conspiring to violate federal mine safety and health standards, in violation of 18 U.S.C. 371 and 30 U.S.C. 820(d). Pet. App. 23.

The district court sentenced petitioner to one year of

imprisonment, to be followed by one year of supervised

release, and fined him $250,000. Ibid. The court of appeals affirmed, 846 F.3d 663, and this Court denied a

petition for a writ of certiorari, 138 S. Ct. 315 (2017).

In 2018, petitioner filed a motion to vacate his sentence under 28 U.S.C. 2255. Pet. App. 22. The district

court denied the motion, id. at 22-66, and the court of

appeals affirmed, id. at 1-21.

1. Petitioner was the Chairman and Chief Executive

Officer of Massey Energy Company, which owned the

Upper Big Branch coal mine in Montcoal, West Virginia. Pet. App. 2. In April 2010, the Upper Big Branch

mine was the site of the deadliest coal mine disaster in

decades, a coal-dust explosion that killed 29 miners. Id.

at 2-3. In the 15 months before the explosion, the mine

had “received the third-most safety citations of any

mine in the United States” for violations of the Federal

Mine Safety and Health Act of 1977, 30 U.S.C. 801 et

seq. Pet. App. 3.

In 2015, a grand jury returned a superseding indictment charging petitioner with conspiring to defraud the

United States and to willfully violate mine safety standards, in violation of 18 U.S.C. 371 and 30 U.S.C. 820(d),

making false statements to the Securities and Exchange

Commission, in violation of 18 U.S.C. 1001, and engaging in securities fraud, in violation of 15 U.S.C. 78ff.

Pet. App. 23.

During a six-week jury trial, the government presented evidence that petitioner had willfully failed to address the safety problems at Upper Big Branch, “favoring

3

coal-mine production and profits over safety.” Pet. App.

2; see id. at 4. The government called numerous miners

who described widespread safety violations at the Upper

Big Branch mine and testified that Massey’s safety policies were often ignored or never communicated to miners

at all. Id. at 5; Gov’t C.A. Br. 7. The government also

presented evidence that petitioner knew about the safety

problems at Upper Big Branch because, among other

things, he maintained close supervision of mine operations and staffing, Pet. App. 5, and received daily reports

reflecting the many citations for safety violations at the

mine, id. at 4.

The jury also heard from Massey employees that petitioner had fostered a “lax attitude toward safety by directing mine supervisors to focus on ‘running coal’ rather than

complying with safety standards.” Pet. App. 5. Bill Ross,

a senior Massey safety official, testified that he had

warned petitioner about the serious safety problems at

Upper Big Branch and the company’s other mines, including by expressing to petitioner his concern that the company “would rather get violations, including unwarrantable actions, than wait for approval” from the Mine Safety

and Health Administration, thereby “show[ing] a lack of

concern for both safety and the law.” Id. at 4. Chris

Blanchard, the executive manager at the Upper Big

Branch mine, testified that petitioner constantly pressured him on profit and costs, rarely said anything about

safety violations, and communicated to him that “safety

violations were the cost of doing business the way [petitioner] wanted it done.” Id. at 5. The jury also heard that

Massey reduced the staff at Upper Big Branch less than

two months before the accident—a decision petitioner

would have needed to approve—despite prior warnings to

4

petitioner that the lack of adequate staff was a key factor

in the high number of safety violations at the mine. Ibid.

Petitioner’s defense at trial centered on the argument that the safety violations had not been willful. Pet.

App. 5-6. Defense counsel acknowledged that petitioner

had pushed his subordinates to increase coal production

while keeping costs down, but nevertheless maintained

that petitioner took safety seriously. Id. at 6. Defense

counsel cross-examined Blanchard for nearly five days

and Ross for nearly two days; the defense also introduced numerous internal corporate documents. Ibid.;

Gov’t. C.A. Br. 8. Despite listing a number of high-level

Massey employees on the pretrial witness list, defense

counsel did not call any witnesses. Pet. App. 6. In closing, defense counsel stated that although 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,” counsel “didn’t realize that we

were going to do it with the Government’s key witness.”

Id. at 17 (emphasis omitted).

The jury found petitioner guilty of conspiring to violate 30 U.S.C. 820(d) and acquitted him on the remaining charges. Judgment 1. The district court sentenced

petitioner to one year of imprisonment, to be followed

by one year of supervised release, as well as a $250,000

fine. Judgment 2-3, 6; see Pet. App. 6. The court of

appeals affirmed, and this Court denied a petition for a

writ of certiorari. Pet. App. 6.

2. After his conviction, petitioner continued to request evidence that he believed the government had improperly suppressed. Pet. App. 6-7. In response to petitioner’s requests, the government provided petitioner

with documents that it had not previously produced. Id.

at 7.

5

Those documents included memoranda prepared by

FBI and Department of Labor investigators summarizing their interviews of Ross, Blanchard, and five others

who had been high-ranking Massey employees during

the time period charged in the indictment (2008 to

2010): Mark Clemens, Massey’s senior vice president of

operations; Sabrina Duba, Massey’s vice president of

subsidiary accounting; Charlie Bearse, president of a

Massey resource group; Stephanie Ojeda, Massey’s inhouse counsel; and Steve Sears, president of Massey

Coal Sales, Pet. App. 7, 43-44, 106, 373, 380, 408. Clemens, Duba, Bearse, Ojeda, and Sears did not testify at

trial, but petitioner had included four of them (all except

Sears) on his pretrial witness list. Id. at 7.

The interview memoranda from the Massey employees included statements that petitioner asserts would

have been favorable to his defense. Clemens stated 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 * * * audit’ at [petitioner’s]

direction after MSHA found that not all accidents were

being reported.” Pet. App. 13; see Pet. 10-11. Duba assisted with the daily violation report that petitioner received and “stated that [petitioner] ‘wanted to know’ the

identities of ‘the repeat offenders.’ ” Pet. App. 13; see

Pet. 11-12. Bearse admitted “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 [petitioner’s] involvement.” Pet. App. 13 (brackets in original); see Pet. 11. Bearse also stated that Massey’s staffing “ ‘was the industry standard’ and that while ‘[petitioner] was very aggressive and in your face,’ ‘safety

6

was implied.’ ” Pet. App. 13-14; see Pet. 11. Ojeda,

whom petitioner’s counsel interviewed a few weeks before her government interview, opined that petitioner

“ ‘seemed to think that Ross was legitimate’ and that she

thought he was ‘looking for solutions from Ross.’ ” Pet.

App. 14; see Pet. 12. And Sears opined that “ ‘Massey’s

primary focus was safety’ and that ‘[petitioner] [had]

started a safety program . . . and pushed safety more

than any other CEO in the industry.’ ” Pet. App. 13 (second set of brackets in original); see Pet. 11.

On May 30, 2018, the Office of Professional Responsibility found that the government had failed to disclose

materials that should have been disclosed under the Department of Justice’s internal discovery rules. Pet.

App. 142-335. It made no finding as to whether a constitutional violation under Brady v. Maryland, 373 U.S.

83 (1963), which addresses the Due Process Clause’s requirements for the disclosure of potentially exculpatory

evidence by the prosecution, had occurred. Pet. App.

146, 157-158, 274-275, 317-319, 333-334.

3. a. On April 18, 2018, petitioner moved to vacate

his sentence under 28 U.S.C. 2255. Pet. App. 336-361.

The magistrate judge recommended that the motion be

granted. Id. at 67-138. On de novo review, the district

court denied the motion, finding “no Brady violation resulting from prosecutorial failure to disclose the [interview memoranda] for these witnesses.” Id. at 48; see id.

at 22-66.

Although the district court viewed some of the information in the five interview memoranda as “favorable”

to petitioner, it determined that it is “the exculpatory

interview information contained in the [memoranda]

or the substance of the [memoranda], that is really at

issue for purposes of Brady, not the [memoranda]

7

documents.” Pet. App. 43, 46-47. And it found that

“[t]he actual substance was clearly available to [petitioner].” Id. at 47 (emphasis omitted).

The district court observed that “all of these people

were current or past employees of Massey,” Pet. App.

43, the “very company of which [petitioner] was CEO,”

id. at 44. It determined that petitioner “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.” Ibid. It

noted that “all but one of the witnesses were on [petitioner’s] trial witness list,” and found that petitioner’s

failure to call them “was an apparent tactical decision,

rather than a constitutional deprivation.” Id. at 45 (citation and internal quotation marks omitted). And it

observed that “most of the favorable substance of these

[memoranda] were brought out as evidence during the

trial making the statements in the [memoranda] cumulative, at best.” Id. at 48.

b. The court of appeals affirmed, rejecting petitioner’s claim that the government violated Brady by

failing to disclose the five employees’ interview memoranda. Pet. App. 1-21.

“To be clear,” the court of appeals emphasized, “the

government’s need to comply with its Brady obligations

is not obviated by the defendant’s lack of due diligence.”

Pet. App. 16. But it cautioned that a defendant cannot

“be allowed to turn a willfully blind eye to available evidence and thus set up a Brady claim for a new trial.”

Id. at 17. And it found that here, petitioner “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.” Id. at 16.

8

The court of appeals observed that “the information

was in [petitioner’s] own house and held by in-house witnesses close to him.” Pet. App. 14. It also observed that

“each of these five witnesses held high positions in Massey and, from those positions, interacted closely with

[petitioner].” Ibid. And it further observed that “[t]he

statements in these interview memoranda that might

have been helpful to [petitioner’s] defense generally

pertained to things that [petitioner] himself had said or

done with respect to safety” and that petitioner “knew

what he had told them and asked them to do.” Id. at 1314.

The court of appeals additionally found that the district court had “appropriately noted the lack of materiality” because petitioner “was able to elicit most of the

favorable substance of the statements * * * through

the cross-examination of Ross and Blanchard and then

decided, as a matter of strategy, not to call any witnesses to testify.” Pet. App. 17. The court thus determined that “the suppression of the interview memoranda for * * * the five potential defense witnesses did

not prejudice [petitioner].” Ibid.

ARGUMENT

Petitioner renews his claim (Pet. 25-35) that he is entitled to vacatur of his conviction under Brady v. Maryland, 373 U.S. 83 (1963), on the theory that his constitutional rights were violated by the nondisclosure of

statements of five Massey employees who were not witnesses at the trial. The lower courts correctly rejected

that claim, and to the extent that federal courts of appeals and state courts of last resort may disagree in

their application of Brady to material that a defendant

could have discovered with reasonable diligence, this

case is not a suitable vehicle for addressing any such

9

disagreement. The court of appeals expressly rejected

a due-diligence requirement, instead finding that petitioner could not carry his burden in asserting a Brady

claim when he was “undoubtedly” aware of the undisclosed information. Pet. App. 16. And it found, in the

alternative, that the undisclosed evidence was not material under Brady because petitioner elicited the substance of that evidence at trial. Id. at 17.

This Court has recently and repeatedly denied petitions for writs of certiorari asserting similar conflicts.

See, e.g., Guidry v. Lumpkin, 142 S. Ct. 1212 (2022)

(No. 21-6374); Walker v. United States, 139 S. Ct. 1168

(2019) (No. 18-6336); Yates v. United States, 139 S. Ct.

1166 (2019) (No. 18-410); Georgiou v. United States, 577

U.S. 954 (2015) (No. 14-1535); Rigas v. United States,

562 U.S. 947 (2010) (No. 09-1456); Cazares v. United

States, 552 U.S. 1056 (2007) (No. 06-10088); Metz v.

United States, 527 U.S. 1039 (1999) (No. 98-6220);

Schledwitz v. United States, 519 U.S. 948 (1996) (No. 952034). It should follow the same course here.

1. To establish a Brady claim, a defendant must

show that: (1) the prosecution suppressed evidence; (2)

the evidence was favorable to the defendant; and (3) the

evidence was material to the establishment of the defendant’s guilt or innocence. Brady, 373 U.S. at 87. Evidence is material under Brady 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 v. Whitley, 514 U.S. 419, 435 (1995)

(quoting United States v. Bagley, 473 U.S. 667, 682

(1985) (plurality opinion)).

a. The court of appeals correctly determined that

petitioner could not prevail on his Brady claim based on

undisclosed interviews of Clemens, Duba, Bearse,

10

Ojeda, and Sears. The Brady rule is designed to ensure

disclosure of “information which had been known to the

prosecution but unknown to the defense.” United

States v. Agurs, 427 U.S. 97, 103 (1976); see Giles v.

Maryland, 386 U.S. 66, 96 (1967) (White, J., concurring

in the judgment) (“[A]ny allegation of suppression boils

down to an assessment of what the State knows at trial

in comparison to the knowledge held by the defense.”).

Here, the court of appeals found that petitioner was

“ ‘not entitled to the benefit of the Brady doctrine’ ” because petitioner “had the evidence before him and undoubtedly was aware of it.” Pet. App. 15-16 (citation

omitted). The court observed that the information was

in petitioner’s “own house” and held by witnesses “close

to him.” Id. at 14. “Indeed,” the court emphasized, petitioner “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.” Ibid.

Petitioner argues (Pet. 29) that knowledge of a witness’s identity does not mean that a defendant has access to that witness’s information, because potential

witnesses may not be willing to speak with defense

counsel. But petitioner does not assert that the Massey

employees here refused to speak with the defense. Petitioner in fact interviewed both Ojeda and Ross (who

testified for the government) before trial (see Pet. App.

405-406; C.A. App. 2118), and does not allege that he

was prevented from interviewing any other potential

witness before trial.

In any event, the court of appeals found that petitioner not only knew these witnesses’ identities, but also

knew the substance of the statements in the interview

memoranda. As the court explained, “each of these five

witnesses held high positions in Massey and, from those

11

positions, interacted closely with [petitioner].” Pet.

App. 14. The statements in the interview memoranda

“generally pertained to things that [petitioner] himself

had said or done with respect to safety or to the employees’ overall perception of the company’s commitment to

safety.” Id. at 13. Accordingly, the court found that petitioner “undoubtedly was aware” of the information in

their statements, because he “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.” Id. at 14, 16. And petitioner has never directly asserted that he was not aware of the information

in the memoranda. 1

Accordingly, the court of appeals correctly determined that petitioner could not prevail on his Brady

claim. Pet. App. 12-17; see United States v. Paulino,

445 F.3d 211, 227 (2d Cir.) (finding no Brady violation

where the government failed to disclose statements

made by counsel for another defendant because the

statements contained only “information already known

in substance to the defense”), cert. denied, 549 U.S. 980

(2006); Allen v. Lee, 366 F.3d 319, 325 (4th Cir.) (en

banc) (per curiam) (finding no Brady violation where

the defendant had “personal knowledge” of the

Petitioner further argues (Pet. 31-32) that even if he were aware

of the substance of the memoranda, the “very existence of the memoranda” is independently significant under Brady because “they indicate to defense counsel what the witness will likely say if called to

the stand” and “can assist in the presentation of a witness’ testimony.” But that would mean that any nondisclosure of witness interview memoranda would violate Brady, irrespective of a defendant’s own knowledge of the information contained therein (or, potentially, access to equivalent information). Petitioner identifies no

court of appeals that has read Brady to impose such a high obligation.

1

12

information contained in undisclosed jail records), cert.

denied, 543 U.S. 906, and 543 U.S. 919 (2004); United

States v. Wilson, 787 F.2d 375, 389 (8th Cir.) (“The government is under no obligation to disclose to the defendant that which he already knows.”), cert. denied, 479

U.S. 857, and 479 U.S. 865 (1986).

b. Petitioner contends (Pet. 26-29) that the court of

appeals’ ruling contravenes this Court’s decisions in

Strickler v. Greene, 527 U.S. 263 (1999), and Banks v.

Dretke, 540 U.S. 668 (2004). That contention lacks

merit.

In Strickler, the Court addressed a Brady claim on

federal postconviction review but expressly stated that

its decision “d[id] not reach, because it [wa]s not raised

in this case, the impact of a showing by the State that

the defendant was aware of the existence of the documents in question and knew, or could reasonably discover, how to obtain them.” 527 U.S. at 288 n.33.

In Banks, the state prosecutor did not disclose information about a paid informant and rehearsal sessions

with a prosecution witness. 540 U.S. at 675-678. Moreover, the State covered up the suppression during trial.

Ibid. On federal postconviction review, the Court rejected the state’s argument that the defendant had

failed to use “appropriate diligence in pursuing” his

Brady claim, explaining that its “decisions lend no support to the notion that a defendant must scavenge for

hints of undisclosed Brady material when the prosecution represents that all such material has been disclosed.” Id. at 695. But the Court did not address a

situation where the defendant was aware of the information underlying the Brady claim and has never

claimed otherwise.

13

As the court of appeals explained, “[t]he circumstances in Banks in no way describe those here,” because here, “[t]o obtain access to the testimony of individuals who had once been his own employees, [petitioner] would not have been required to scavenge,

guess, search, or seek.” Pet. App. 16. “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.” Ibid.; see also id. at 14

(“These facts do not describe a circumstance where [petitioner] was required to scavenge for hints of undisclosed Brady material or which amounted to a hide-andseek process in which [petitioner] was the seeker.”) (citation and internal quotation marks omitted).

Petitioner argues (Pet. 33-34) that Brady should be

interpreted to require disclosure of exculpatory evidence without regard to a defendant’s knowledge of the

information or his ability to obtain the evidence with

due diligence, in order to “limit[] prosecutorial conduct”

without regard to defense counsel’s conduct. The purpose of the Brady rule, however, “is not to displace the

adversary system as the primary means by which truth

is uncovered, but to ensure that a miscarriage of justice

does not occur.” Bagley, 473 U.S. at 675. “Thus, the

prosecutor is not required to deliver his entire file to

defense counsel, but only to disclose evidence favorable

to the accused that, if suppressed, would deprive the defendant of a fair trial.” Ibid. (footnote omitted); see

Kyles, 514 U.S. at 436-437 (“[T]he Constitution is not

violated every time the government fails or chooses not

to disclose evidence that might prove helpful to the defense.”). Brady’s concern for the fairness of trial, rather than the broader policy considerations put forth by

petitioner, supports the conclusion that due process is

14

not violated when the defendant, as here, “had the evidence before him and undoubtedly was aware of it.”

Pet. App. 16.

Petitioner’s related argument (Pet. 34) that the court

of appeals’ approach requires courts to “speculat[e]” as

to whether the defendant could have located exculpatory evidence is likewise incorrect. The court of appeals

did not engage in “speculation”; rather, after “giv[ing]

the record a close review,” Pet. App. 3, the court of appeals concluded that petitioner was aware of the substance of the information in the interview memoranda

based on petitioner’s relationship with his employees

and his knowledge of what he told them and asked them

to do, id. at 14. As noted, see p. 11, supra, petitioner

has never directly claimed that he was unaware of the

undisclosed information, proffered an affidavit to that

effect, or otherwise put anything into the postconviction

record to show lack of knowledge.

At all events, petitioner’s disagreement with the

court of appeals’ factbound determination—which was

consistent with the district court’s findings, Pet. App.

43-48—does not warrant this Court’s review. See Sup.

Ct. R. 10; see also Kyles, 514 U.S. at 456-457 (Scalia, J.,

dissenting) (“[U]nder what [the Court] ha[s] called the

‘two-court rule,’ th[at] policy has been applied with particular rigor when district court and court of appeals are

in agreement as to what conclusion the record requires.”) (citing Graver Tank & Mfg. Co. v. Linde Air

Prods. Co., 336 U.S. 271, 275 (1949)). Petitioner provides no reason to depart from the usual practice here.

2. The decision below does not conflict with the decision of a federal court of appeals or a state court of

last resort.

15

a. Petitioner observes (Pet. 17-18) that some federal

courts of appeals and state courts have determined that

the nondisclosure of exculpatory evidence did not violate Brady in circumstances where the defendant did

not actually possess the evidence in question but could

have discovered it in the exercise of due diligence. See,

e.g., Guidry v. Lumpkin, 2 F.4th 472, 487 (5th Cir. 2021)

(per curiam) (reasoning that a “Brady claim fails if the

suppressed evidence was discoverable through reasonable due diligence”) (citation omitted), cert. denied, 142

S. Ct. 1212 (2022); Camm v. Faith, 937 F.3d 1096, 1108

(7th Cir. 2019) (reasoning that evidence is suppressed

only if it “was not otherwise available to the defendant

through the exercise of reasonable diligence.”) (citation

omitted); United States v. Anwar, 880 F.3d 958, 969 (8th

Cir. 2018) (reasoning that “[t]he government does not

suppress evidence in violation of Brady by failing to disclose evidence to which the defendant had access

through other channels”) (citation omitted; brackets in

original); United States v. Therrien, 847 F.3d 9, 16 (1st

Cir.) (reasoning that “evidence is not suppressed if the

defendant either knew, or should have known of the essential facts permitting him to take advantage of ” the

evidence) (citations omitted), cert. denied, 137 S. Ct.

2227 (2017); United States v. Stein, 846 F.3d 1135, 1146

(11th Cir.) (reasoning that “the government is not

obliged under Brady to furnish a defendant with information which * * * with any reasonable diligence, he

can obtain himself.”) (citations omitted; brackets in

original), cert. denied, 138 S. Ct. 556 (2017).

Petitioner contends (Pet. 18-25) that those decisions

conflict with decisions from other federal and state

courts holding that there is no due-diligence requirement for a Brady claim. This Court has repeatedly and

16

recently denied certiorari in petitions asserting that

conflict. See p. 9, supra. And in any event, any disagreement is not implicated by the decision below, because the court of appeals expressly stated that the government’s Brady obligation “is not obviated by the defendant’s lack of due diligence.” Pet. App. 16. The decision below instead rested on the narrower determination that no Brady violation occurred where petitioner

had the evidence from his employees “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.” Ibid.; see pp. 10-11, 14, supra. 2 The court of appeals’ narrow and context-specific decision makes this

case an inappropriate vehicle for considering the

broader question that petitioner presents, and none of

the cases cited by petitioner establish a conflict on the

narrower question.

b. Petitioner fails to identify another court of appeals or state court of last resort that would necessarily

have reached a different result on the facts of this case.

Although the Tenth Circuit stated in Banks v.

Petitioner argues that the court of appeals effectively imposed a

“due diligence” test, Pet. 27 (citation omitted)—notwithstanding

its express rejection of that test, Pet. App. 16—by invoking “the

common-sense notion of self-help imputable to a defendant in preparing his case,” id. at 17. In context, the court used the term “selfhelp” to mean that petitioner was not entitled “to turn a willfully

blind eye to available evidence” to “set up a Brady claim for a new

trial.” Ibid. The court did not impose a due-diligence requirement

on petitioner to scavenge for evidence; rather, the court emphasized

that there was no Brady violation here because petitioner “undoubtedly was aware” of the evidence in the first place. Id. at 16. And

any ambiguity in the opinion on this issue would suggest that further clarification by the court of appeals is possible, and that review

by this Court would be premature.

2

17

Reynolds, 54 F.3d 1508 (1995), that “the fact that defense counsel ‘knew or should have known’ about [exculpatory] information, therefore, is irrelevant to whether

the prosecution had an obligation to disclose,” id. at

1517, in that case the defendant knew only that two

other suspects had been arrested for the crime; the

prosecution failed to disclose not only that already

known fact, but also eyewitness accounts placing those

suspects at the scene, a report that one of the suspects

had confessed to the crime, and potentially exculpatory

information from their criminal histories. Id. at 15101511. Petitioner has not cited a case in which the Tenth

Circuit has identified a Brady violation where, as here,

the defendant did not claim he was unaware of the exculpatory information.

To the contrary, the Tenth Circuit has recognized

that “a defendant’s independent awareness of the exculpatory evidence is critical in determining whether a

Brady violation has occurred” because that awareness

renders the nondisclosed evidence “immaterial.” United

States v. Quintanilla, 193 F.3d 1139, 1149 (1999), cert.

denied, 529 U.S. 1029 (2000); see Fontenot v. Crow, 4

F.4th 982, 1066 (10th Cir. 2021) (“[A] defendant’s

knowledge instead implicates the element of prejudice,

or materiality”), cert. denied, 142 S. Ct. 2777 (2022).

And in another case, the Tenth Circuit explained that

the government has no obligation under Brady to produce exculpatory evidence “[i]f the means of obtaining

the * * * evidence has been provided to the defense.”

United States v. Wolf, 839 F.2d 1387, 1391, cert. denied,

488 U.S. 923 (1988).

The Ninth Circuit’s decision in United States v.

Howell, 231 F.3d 615 (2000), cert. denied, 534 U.S. 831

(2001), likewise presented circumstances distinct from

18

this case. There, the government gave the defense two

police reports containing material errors that misidentified the codefendant as carrying contraband at the

time of arrest, when the contraband was in fact found

on the defendant. Id. at 623. The prosecutor learned of

the material errors in the reports before trial, yet failed

to disclose them to the defense, which then crafted its

trial strategy around the erroneous police reports, only

to discover mid-trial that the government disavowed

their accuracy. Id. at 623-624. The court of appeals rejected the government’s argument that the prosecutors

had no duty to disclose the mistakes because the defendant knew “the truth” and therefore knew that the

reports were “wrong.” Id. at 625. Unlike in Howell, this

case does not involve “the government’s duty to disclose

evidence of a flawed police investigation.” Ibid. And in

other cases, the Ninth Circuit has found no Brady violation when the defendant “had all the ‘salient facts regarding the existence of the [evidence] that he claims

[was] withheld.’ ” Rhoades v. Henry, 638 F.3d 1027,

1039 (quoting Raley v. Ylst, 470 F.3d 792, 804 (9th Cir.

2006), cert. denied, 552 U.S. 833 (2007)) (brackets in

original), cert. denied, 565 U.S. 946 (2011); see Cunningham v. Wong, 704 F.3d 1143, 1154 (9th Cir.) (same),

cert. denied, 571 U.S. 867 (2013); United States v. Bond,

552 F.3d 1092, 1095 (9th Cir. 2009) (“[W]here the defendant has enough information to be able to ascertain

the supposed Brady material on his own, there is no

suppression.”) (citations and internal quotation marks

omitted).

In Lewis v. Connecticut Commissioner of Corrections, 790 F.3d 109 (2d Cir. 2015), it was not until after

the defendant’s trial that the defense learned, from a

retired police officer who had assisted in the

19

defendant’s arrest, that the state prosecutor failed to

disclose that the prosecution’s prime witness “repeatedly denied having any knowledge of the murders and

only implicated [the defendant] after a police detective

promised to let [the witness] go if [the witness] gave a

statement in which he admitted to being the getaway

driver and incriminated [the defendant] and another individual.” Id. at 113; see id. at 113-115. In reviewing

the defendant’s habeas petition, the Second Circuit

noted that “[e]vidence is not ‘suppressed’ [for Brady

purposes] if the defendant either knew, or should have

known, of the essential facts permitting him to take advantage of any exculpatory evidence.” Id. at 121 (citation omitted; brackets in original). Although the Second

Circuit declined to apply a due-diligence requirement

where a defendant “was reasonably unaware of exculpatory information,” ibid., it did not relieve a defendant

of an obligation to interview an individual whom the defendant knew had witnessed an exculpatory incident,

which it viewed as involving “facts already within the

defendant’s purview,” ibid.; see United States v. Diaz,

922 F.2d 998, 1007 (2d Cir. 1990) (“[T]here is no improper suppression within the meaning of Brady where

the facts are already known by the defendant.”), cert.

denied, 500 U.S. 925 (1991); see also Paulino, 445 F.3d

at 224-225; United States v. Robinson, 560 F.2d 507, 518

(2d Cir. 1977) (en banc), cert. denied, 435 U.S. 905

(1978). Because petitioner was aware of the substance

of the statements in the pretrial interviews of his employees, he would not prevail under the approach described in Lewis.

Dennis v. Secretary, 834 F.3d 263 (3d Cir. 2016) (en

banc) involved the prosecution’s failure to disclose a

timestamped receipt that would have supported the

20

defendant’s alibi defense, the existence of which was unknown to the defendant at the time of trial and which

was not “publicly available.” Id. at 289; see id. at 275276, 288-290. That decision does not conflict with the

decision here, which involved information of which petitioner was aware. Furthermore, in finding a Brady violation on those facts, the Third Circuit construed a

prior decision, which it reaffirmed, as “reject[ing] defendant’s argument that certain documents were * * *

somehow ‘suppressed’ when the government had made

the materials available for inspection and they were defendant’s own documents.” Id. at 292-293 (citing United

States v. Pelullo, 399 F.3d 197, 212 (3d Cir. 2005), cert.

denied, 546 U.S. 1137 (2006)) (emphasis added).

In United States v. Tavera, 719 F.3d 705, 711-712

(6th Cir. 2013), and In re Sealed Case No. 99-3096

(Brady Obligations), 185 F.3d 887, 892-894, 896-897

(D.C. Cir. 1999), the courts of appeals reasoned that a

due-diligence rule did not require the defense to attempt to interview trial witnesses to discover exculpatory information that was provided to police or prosecutors. In re Sealed Case additionally reasoned that a

due-diligence rule did not require a defendant to subpoena police officers to learn whether they had negotiated cooperation agreements with witnesses. Id. at 897.

Neither case held that a Brady violation occurs when

the government does not provide information that the

defendant already knows or could reasonably obtain.

To the contrary, the court in Tavera noted that the facts

of that case involved “information known to investigating officers that defendants had no reason to know

about,” contrasting it with a prior case in which the circuit had determined that Brady did not apply to publicly available sentencing records. Tavera, 719 F.3d at

21

712 n.4 (quoting Bell v. Bell, 512 F.3d 223, 235 (6th Cir.)

(en banc), cert. denied, 555 U.S. 822 (2008)).

c. The state cases on which petitioner relies (Pet. 2325) likewise indicate no conflict warranting this Court’s

review. In People v. Chenault, 845 N.W.2d 731 (Mich.

2014), the prosecution failed to disclose videotaped witness interviews that were arguably inconsistent with

the witnesses’ written statements; the defendant did

not know the contents of the recorded interviews. Id. at

734. The Michigan Supreme Court declined to adopt “a

rule requiring a defendant to show that counsel performed an adequate investigation in discovering the alleged Brady material,” but made clear that “evidence

that the defense knew of favorable evidence, will reduce

the likelihood that the defendant can establish that the

evidence was suppressed for purposes of a Brady

claim,” id. at 738. That approach is consistent with the

result in this case.

The other state cases are inapposite because they did

not involve a finding, as this case does, that the defendant “undoubtedly was aware” of the nondisclosed material. Pet. App. 16. See People v. Bueno, 409 P.3d 320,

322-323, 327-329 (Colo. 2018) (en banc) (investigative reports detailing evidence of threats against inmates that

would have supported defendant’s “alternate-suspect”

defense that were unknown to the defense and whose

nondisclosure would violate Brady “even if * * * a reasonable diligence requirement” applied); State v. Williams, 896 A.2d 973, 993 (Md. 2006) (informant status of

government witness); Commonwealth v. Tucceri, 589

N.E.2d 1216, 1217-1224 (Mass. 1992) (police pretrial

photographs of the defendant); State v. Reinert, 419

P.3d 662, 666 (Mont. 2018) (state medical examiner’s letter questioning credentials of State’s forensic expert);

22

State v. Bethel, No. 2020-648, 2022 WL 838337, at *5-*7

(Ohio 2022) (pretrial investigation report that the defendants did not know about before trial); State v. Durant, 844 S.E.2d 49, 53-55 (S.C. 2020) (criminal history

of government witness), cert. denied, 141 S. Ct. 1423

(2021); State v. Wayerski, 922 N.W.2d 468, 481-482

(Wis. 2019) (pending charges against government witness).

3. This case would, in addition, not be a suitable vehicle to review the question presented for the independent reason that both the court of appeals (Pet. App. 17)

and the district court (id. at 48) determined that disclosure of the information would not have affected the outcome of the trial, because corresponding evidence was

presented at trial and the information at issue here

would have been cumulative.

That determination has substantial record support.

As the court of appeals noted, through his crossexamination of Blanchard and Ross, and his presentation of “numerous Massey documents,” petitioner

“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.”

Pet. App. 6. That evidence included petitioner’s work

with Ojeda, Duba, Bearse, and Clemens. Both Blanchard

and Ross repeatedly referred to the roles played by

these employees at Massey, as well as their communications with petitioner and other Massey employees.

See, e.g., C.A. App. 632 (DX 26); id. at 1163-1164 (DX

333); id. at 1874-1900, 2000-2002, 2244-2246 (Ojeda); id.

at 486, 670, 773-774, 862, 1095, 1318-1319 (Duba); id. at

634-637 (DX 41 and 43) (Bearse); id. at 471, 622, 773,

862, 1318 (Clemens). Accordingly, in closing argument,

petitioner contended that the June 2009 meeting

23

between Ross and Ojeda showed that he tried to reduce

violations at the mines, id. at 2655, and referred to an

exculpatory e-mail that he had sent to Clemens and others, id. at 2644.

As the lower courts observed, Pet. App. 7, 14, 45, petitioner had four of the five employees whose statements are at issue here on his witness list, and decided

not to call them. And as the lower courts recognized,

that decision was not based on ignorance about material

exculpatory information that those witnesses could

have provided, but instead “a matter of trial strategy”

based on petitioner’s ability “to elicit most of the favorable substance of the statements in the interview memoranda through the cross-examination of Ross and

Blanchard.” Pet. App. 17; see ibid. (highlighting defense counsel’s statement during closing that although

he had told the jury in his opening “ that it might take

us a while to put on the evidence that indicated that

Massey did not want citations,” he had not “realize[d]

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

witness”) (emphasis omitted). No sound reason exists

to presume that petitioner would have reached a different judgment for the one of the five employees who was

not on his witness list (Sears), whose nondisclosed

statements were similar and cumulative of the evidence

at trial that petitioner opted not to bolster with defense

testimony. See pp. 22-23, supra; see also, e.g., C.A. App.

905, 2627 (evidence and argument about petitioner’s

disciplining of employees who committed safety violations).

Petitioner does not mention—let alone challenge—

the additional determination by the courts below, which

provides an independent basis for rejecting petitioner’s

claim. And the fact-bound determination is both

24

inappropriate for this Court’s review and preclusive of

a different result in this case, even if the Court were to

decide the question presented in petitioner’s favor.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

ELIZABETH B. PRELOGAR

Solicitor General

KENNETH A. POLITE, JR.

Assistant Attorney General

T HOMAS E. BOOTH

Attorney

AUGUST 2022