Blankenship v. United States, CIVIL ACTION NO. 5:18-cv-00591

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

CIVIL ACTION NO. 5:18-cv-00591

Criminal No. 5:14-cr-00244

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA BECKLEY DIVISION

January 15, 2020

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 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 ...