CHARLESTON, W.Va. — Former Massey Energy CEO Don Blankenship, who was sentenced to one year in prison on a misdemeanor conspiracy charge after the 2010 explosion at the Upper Big Branch mine killed 29 workers, must serve out the remaining months of his sentence.
That’s because a federal appeals panel upheld the conviction handed down in U.S. District Court in 2015. The only remaining avenue of appeal would be to the U.S. Supreme Court.
“We affirm the District Court’s judgment,” is the final sentence of today’s ruling, written by Judge James A. Wynn Jr and joined by Senior Judge Andre M. Davis and Chief Judge Roger L. Gregory.
The judges also wrote, “After careful review, we conclude the district court committed no reversible error.”
MORE Click here to see the ruling.
Blankenship reported to Taft Federal Prison in California on May 12, 2016.
The three-judge panel for the Fourth Circuit U.S. Court of Appeals in Richmond heard arguments by Blankenship attorney William Taylor as well as from Steve Ruby of the U.S. Attorney’s office on Oct. 26 in the appeal of Blankenship’s 2015 conviction of conspiracy to willfully violate mandatory mine safety and health standards.
The crime is a misdemeanor, and Blankenship was sentenced April 6, 2016, to the maximum penalty of one year in prison and a $250,000 fine.
“The decision was a resounding affirmation of prosecution and the way Judge Berger conducted the trial,” said Charleston attorney Booth Goodwin, who was U.S. Attorney for the Southern District of West Virginia at the time of Blankenship’s 2015 trial.
“It was also a rebuke of Blankenship as well as his high-priced legal team who guaranteed that the case would be overturned.”
Taylor, the lead attorney for Blankenship, said defense is still assessing the ruling and whether further actions are available.
“We are reading it, and will be making decisions in the next few days,” Taylor wrote in an email.
In the October appeals hearing, Blankenship’s attorneys contended that jurors were wrongly instructed about the meaning of “willful disregard” during his federal criminal case that followed the explosion of the Upper Big Branch Mine.
Lawyers for Blankenship also argued Judge Irene Berger’s jury instructions did not properly define and weigh the presumption of innocence.
The three-judge appeals panel, citing precedent in earlier cases, didn’t buy those arguments.
In particular, the appeals panel ruled, “The Mine Safety Act declares that ‘operators’ — like Defendant — have the primary responsibility to prevent unsafe and unhealthful conditions and practices at mines.”
The panel went on to say, “Because mine operators have ‘primary’ responsibility for safety and regulatory compliance and because an operator act with reckless disregard if he ‘closes his eyes’ to safety compliance or ‘should have known’ that an action or omission would lead to a safety violation, a mine operator cannot avoid liability under Section 820(d) by failing to engage in close oversight over safety and regulatory compliance.”
The panel said the jury was right to conclude that Blankenship took actions he knew would lead to violations of safety laws or failed to take actions that he knew were necessary to comply with federal mine safety laws. The introduction written by Judge Wynn makes note of the 549 violations at Upper Big Branch in 2009, the year before the explosion.
“Defendant knew that his actions and omissions would lead to violations of mine safety laws and regulations.”
Blankenship’s attorneys came closest to persuading the appeals panel with their argument that Berger’s jury instructions were not adequate.
The defense attorneys said the government’s burden of proof was lessened with the instruction that if the jury “viewed the evidence in the case as reasonably permitting either of two conclusions — one of innocence, the other of guilt — the jury should, of course, adopt the conclusion of innocence.”
In today’s decision, the panel instructed district courts not to use that construction going forward.
Instead, courts should use beyond a reasonable doubt as the standard.
But the panel said that alone was not enough to overturn the earlier decision in Charleston.
“Although we disapprove of the two-inference instruction, the district court’s use of that instruction here does not amount to reversible error because, when viewed as a whole, the court’s instructions correctly stated the government’s burden.
“In particular, the court instructed the jury several dozen times that it needed to find Defendant guilty beyond a reasonable doubt, including immediately before and after it used the two-inference instruction.”
Another argument by Blankenship’s lawyers was that they hadn’t gotten a chance to engage in recross-examination of Chris Blanchard, who supervised the Upper Big Branch mine for Massey.
The appeals panel noted that the defense’s earlier cross-examination of Blanchard lasted nearly five days “and therefore Defendant had an extensive opportunity to examine Blanchard.” The panel also said the defense could have called Blanchard as its own witness later in the trial.
Finally, the panel rejected an argument that the superseding indictment in the Blankenship case should have been dismissed because it did not cite the specific mine safety regulations that he allegedly conspired to violate.
“We disagree,” the panel concluded.