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Blankenship v. United States

United States District Court, S.D. West Virginia, Beckley Division

January 15, 2020

DONALD L. BLANKENSHIP, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION AND ORDER

          IRENE C. BERGER UNITED STATES DISTRICT JUDGE

         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 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.)

         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 co-conspirator, (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 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).

         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 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 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 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.

         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 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 Clemens[4]-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 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 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 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 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 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)).

         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 ...


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