PUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 20-6330
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, at Beckley. Irene C. Berger, District Judge. (5:14-cr-00244-1; 5:18-cv-00591)
Argued: September 22, 2021 Decided: December 7, 2021
Before NIEMEYER, DIAZ, and QUATTLEBAUM, Circuit Judges.
Affirmed by published opinion. Judge Niemeyer wrote the opinion, in which Judge Diaz and Judge Quattlebaum joined.
ARGUED: James McCall Cagle, Charleston, West Virginia, for Appellant. Thomas Ernest Booth, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON BRIEF: Nicholas L. McQuaid, Acting Assistant Attorney General, Robert A. Zink, Acting Deputy Assistant Attorney General, Criminal Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. 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 [was] identified.” The suppressed documents fell broadly into
two categories: (1) memoranda of interviews conducted of seven Massey employees and
2 (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 third-most 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 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
3 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.”
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
4 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 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,
5 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
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
6 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.
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
7 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 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
8 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 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
9 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.
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
10 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.” 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
11 Blanchard in their pretrial interviews “was covered” during defense counsel’s thorough
cross-examination 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 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
12 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 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
13 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 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-police-informant 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
14 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
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”).
15 Yet, while that precept is overriding, common sense should not be ignored. Thus,
when assessing the 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 after the
16 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 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
17 [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 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
18 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.
* * *
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
19 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.