in the united states court of appeals for the fourth ... · non-criminal violations of the federal...

IN THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 16-4193

UNITED STATES OF AMERICA,

Plaintiff – Respondent,

v. DONALD L. BLANKENSHIP,

Defendant – Petitioner.

On Appeal from the United States District Court for the Southern District of West Virginia, Charleston

AMICUS BRIEF OF ILLINOIS COAL ASSOCIATION, OHIO COAL ASSOCIATION AND WEST VIRGINIA COAL ASSOCIATION IN

SUPPORT OF NEITHER PARTY Christopher A. Brumley

Jeffrey M. Wakefield Nathaniel K. Tawney Wesley P. Page Bradley J. Schmalzer

Flaherty Sensabaugh Bonasso PLLC P. O. Box 3843 Charleston, WV 25338-3843 Telephone: (304) 345-0200 Fax: (304) 345-0260 [email protected] Counsel for Amici Curiae

Appeal: 16-4193 Doc: 38-1 Filed: 07/05/2016 Pg: 1 of 39

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RULE 29(C)(5) STATEMENT

Pursuant to Fed. R. App. P. 29(c)(5) amici state that no party’s counsel

authored the brief in whole or in part; no party’s counsel contributed money that

was intended to fund preparing or submitting the brief; and no person—other than

amici, its members, or its counsel—contributed money that was intended to fund

preparing or submitting the brief.


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STATEMENT OF INTEREST AND CORPORATE DISCLOSURE

The amici on whose behalf this brief is submitted are statewide, non-profit

coal industry trade associations, namely the Illinois Coal Association, Ohio Coal

Association and West Virginia Coal Association. This brief is submitted pursuant

to Federal Rule of Appellate Procedure 29. The amici have no parent corporations

and do not issue stock. No publicly held corporation has a direct financial interest

in the outcome of this litigation due to the participation of the amici.

As associations representing the coal mining industry, the amici are uniquely

positioned to provide specific insights into the practical realities and day-to-day

issues faced by operators across the country. As discussed herein, management

personnel of mine operators need to be an integral part of operations to ensure that

production and safety are unified, and interpretations of the law that discourage

such efforts for fear of criminal prosecution should be avoided. It is the sincere

hope of the amici that a fuller understanding of the realities of the industry will

guide the Court in addressing certain issues raised in this appeal.

This brief is submitted with significant concern that it may be perceived to

support the Petitioner’s effort to have his conviction overturned. The amici want

to make very clear that they do not seek to endorse or sanction any specific

conduct of the Petitioner and do not speak to the totality of evidence in the record

as it may relate to the Petitioner’s conviction. To that end, the amici are not


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opining on the legality or illegality of Petitioner’s actions and the contents of this

brief are not intended to be an independent confirmation or validation of the facts

as presented by Petitioner. However, the amici cannot sit idly by and allow the

expansion of criminal law to the point that mere involvement of company

management in certain affairs can serve as a basis, in whole or in part, for criminal

prosecution. The amici feel compelled to express significant policy concerns with

respect to the potential for criminal prosecution of women and men who make

difficult management decisions every day under a broad regulatory scheme where

citations from State and Federal regulatory agencies are simply an integral part of a

regulatory system that has developed over the years to make mining safer.


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TABLE OF CONTENTS

Page

RULE 29(C)(5) STATEMENT ................................................................................... i STATEMENT OF INTEREST AND CORPORATE DISCLOSURE .................... ii

TABLE OF CONTENTS .......................................................................................... iv TABLE OF AUTHORITIES ..................................................................................... v INTRODUCTION AND SUMMARY OF ARGUMENT ........................................ 1 DISCUSSION ............................................................................................................ 3

MSHA’s History and Role .............................................................................. 3 MSHA Inspection and Enforcement ............................................................... 4 MSHA Citations .............................................................................................. 5 MSHA’s Narrow and Focused Enforcement on the Coal Industry ................. 8 Mine Operator Reporting Obligations under the Dodd-Frank Act ............... 12

LEGAL ARGUMENT ............................................................................................. 13

A. The current state of the law requires that for a defendant to be convicted of “willfully” violating the Mine Act, he or she must engage in conduct which violates the Mine Act with a “bad purpose” and with “knowledge that his or her conduct is illegal.” ................................................................................................ 15

1. The District Court’s reliance on United States v. Jones in

defining “willfully” was misplaced. ......................................... 16 2. The District Court’s definition of “willfully” failed to

consider that the term has been further clarified since Jones was decided. .................................................................... 19


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B. The District Court’s definition of “willfully” failed to include the necessary mens rea to sustain a conviction under 30 U.S.C. § 820(d). .............................................................................................. 22

CONCLUSION ........................................................................................................ 26 CERTIFICATE OF COMPLIANCE ....................................................................... 28 CERTIFICATE OF SERVICE ................................................................................ 29


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TABLE OF AUTHORITIES

CASES

Page

Bailey v. United States, 516 U.S. 137 (1995) ........................................................................................ 14 Bryan v. United States, 524 U.S. 184 (1998) .......................................................... 15, 19, 20, 21, 23, 24 Boyce Motor Lines, Inc. v. United States, 342 U.S. 337 (1952) ......................................................................................... 20 Intercounty Constr. Co. v. OSHRC, 522 F.2d 777 (4th Cir. 1975) ..................................................................... 17, 18 McNally v. United States, 483 U.S. 350 (1987) ......................................................................................... 14 Ratzlaf v. United States, 510 U.S. 135 (1994) ......................................................................................... 20 Scheidler v. Nat’l Org. for Women, Inc., 537 U.S. 393 (2003) ......................................................................................... 14 Sec. of Labor v. Twentymile Coal Co., 456 F.3d 151 (D.C. Cir. 2006) ........................................................................... 5 Spies v. United States, 317 U.S. 492 (1943) ......................................................................................... 15 United States v. Consolidation Coal Co., 504 F.2d 1330 (6th Cir. 1974) ................................................................... 17, 23 United States v. Genova, 333 F.3d 750 (7th Cir. 2003) ........................................................................... 14 United States v. Giles, 300 U.S. 41 (1937) ........................................................................................... 25


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United States v. Ill. Cent. R.R., 303 U.S. 239 (1938)) ......................................................................... 17, 18, 21 United States v. International Minerals & Chemical Corp., 402 U.S. 558 (1971) ............................................................................. 18, 19, 21 United States v. Jones, 735 F.2d 785 (4th Cir. 1984) ............................................ 16, 17, 18, 19, 21, 23 United States v. Kelner, 534 F.2d 1020 (2d Cir. 1976) .......................................................................... 25 United States v. Moore, 586 F.2d 1029 (4th Cir. 1978) ......................................................................... 18 United States v. Murdock, 290 U.S. 389 (1933) ......................................................................................... 20 United States v. Pasillas-Gaytan, 192 F.3d 864 (9th Cir. 1999) ........................................................................... 21 Westmoreland Coal Co. v. FMSHRC, 606 F.2d 417 (4th Cir. 1979) ............................................................................. 4

STATUTES 12 U.S.C. § 530 ........................................................................................................ 12 12 U.S.C. § 5301, Section 1503 of the Dodd-Frank Wall Street Reform and

Consumer Protection Act, ................................................................................ 12 29 U.S.C. § 651 .......................................................................................................... 8 30 U.S.C. § 801 et seq, Federal Mine Safety and Health Act of 1977 (the

"Mine Act" or "Act") ......................................................................................... 1 30 U.S.C. § 801(a) ..................................................................................................... 4 30 U.S.C. § 801(e) ..................................................................................................... 4 30 U.S.C. § 802(d) ..................................................................................................... 3 30 U.S.C. § 813(a) ..................................................................................................... 4 30 U.S.C. § 814(a) ..................................................................................................... 6 30 U.S.C. § 814(d) ..................................................................................................... 5 30 U.S.C. § 815 .......................................................................................................... 6 30 U.S.C. § 815(a) ..................................................................................................... 6 30 U.S.C. § 815 (d) .................................................................................................... 6


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30 U.S.C. § 816 .......................................................................................................... 7 30 U.S.C. § 820(c) ......................................................................................... 6, 16, 18 30 U.S.C. § 820(d) ................................................................................... 7, 14, 16, 22 30 U.S.C. § 820(d)(1)................................................................................................. 7 30 U.S.C. § 820(e) ..................................................................................................... 8

REGULATIONS

17 C.F.R. § 229.104 ................................................................................................. 13 29 C.F.R. §1900-2400 ................................................................................................ 8 30 C.F.R. § 46 ............................................................................................................ 5 30 C.F.R. § 48 ............................................................................................................ 5 30 C.F.R. § 100.3 ................................................................................................. 6, 11 30 C.F.R. § 104 et seq ................................................................................................ 9 30 C.F.R. § 816 .................................................................................................... 7 30 C.F.R. § 816(d) .................................................................................................. 7 30 C.F.R. § 842.11 ..................................................................................................... 8

OTHER AUTHORITIES

Coal Age, Total Number of Longwall Faces Drops Below 50 (Feb. 12, 2009) http://www.coalage.com/features/449-total-number-of-longwall-faces-drops-below-50.html#V2GNgxLN5Rw (last visited June 30, 2016) ...................... 10

James A. Lastowka, Walking the MSHA Investigation Tightrope - Implementing an Effective Inspection Management Plan, 17 E. Min. L. Inst. Ch. 8, at 252-54 (1997) available at http://www.emlf.org/clientuploads/directory/ whitepaper/Lastowka_97_excerpt.pdf .................................................... 10, 11

Patrick McLaughlin & Oliver Sherouse, George Mason Univ. Mercatus Ctr., The McLaughlin-Sherouse List: The 10 Most-Regulated Industries of 2014, (Jan. 21, 2016), http://mercatus.org/publication/mclaughlin-sherouse-list-10-most-regulated-industries-2014 (last visited June 30, 2016) .................................... 3

MSHA, Citation and Order Writing Handbook for Coal Mines and Metal and Nonmetal Mines, Handbook Number PH13-I-1(1) at 60 (Dec. 2013), available at http://arlweb.msha.gov/READROOM/HANDBOOK/PH13-I-1.pdf. ................................................................................................................ 7


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MSHA, Program Policy Manual, Vol. I at 29 (Nov. 2013), available at http://arlweb.msha.gov/REGS/complian/ppm/PDFVersion/PPM%20Vol%20I.pdf. ........................................................................................................ 5

OSHA, 2015 Enforcement Summary,

https://www.osha.gov/dep/2015_enforcement_summary.html (last visited June 30, 2016) .................................................................................................. 8

OSHA, OSHA Inspections, at 3-5 (OSHA 2098, 2002 rev.), available at https://www.osha.gov/Publications/osha2098.pdf. ......................................... 9

MSHA, MSHA Fact Sheet Total Citations and Orders Issued Both Coal and

Metal/Non Metal Mines CY 2009-CY2015, available at https://www.msha.gov/sites/default/files/Total%20Citations%20and%20Orders.pdf .............................................................................................................. 9

MSHA’s Mine Data Retrieval System (“MDRS”), available at

http://arlweb.msha.gov/drs/drshome.htm ...................................................... 11 Randy Rabinowitz, N.Y. Times, OSHA Has a Big Job, on a Tiny Budget,

http://www.nytimes.com/roomfordebate/2013/04/28/where-osha-falls-short-and-why/osha-has-a-big-job-on-a-tiny-budget (last visited June 30, 2016) ... 8

SEC’s Mine Safety Disclosure Small Entity Compliance Guide, (Jan. 20, 2012),

https://www.sec.gov/rules/final/2011/33-9286-secg.htm (last visited June 30, 2016) .............................................................................................................. 13


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INTRODUCTION AND SUMMARY OF ARGUMENT

Given the heavily regulated nature of the coal industry, where citations for

non-criminal violations of the Federal Mine Safety and Health Act of 1977 (the

“Mine Act” or “Act”), 30 U.S.C. § 801 et seq., are a routine aspect of federal

regulation designed to make mining safer, it is imperative that the demarcation

between business decisions and criminal conduct be clear, concrete and defined. In

the context of allegations that a defendant has “willfully” violated the Mine Act,

United States Circuit Courts of Appeal have historically required the government

to prove that a defendant knowingly, purposely, and voluntarily violated a standard

and did so “in intentional disobedience of the standard” or “in reckless disregard of

its requirements.” Since the controlling cases in this area were decided, the

Supreme Court of the United States has clarified that in the criminal law, “willful”

refers to a culpable state of mind, with the resulting act “undertaken with a bad

purpose” or “with knowledge that one’s conduct was unlawful.”

At the trial of this case, the District Court’s jury instruction defining

“willful,” however, permitted the jury to convict on a lesser standard of culpability

in that the instructions did not require a finding that the defendant acted “with a

bad purpose” or “with knowledge that his conduct was unlawful.” (J.A. 235-37.)

Instead, the instructions permitted a jury to find that a defendant “knowingly”


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acted or failed to act to prevent violations, which differs from the “willful” state of

mind necessary under the law. (J.A. 235-37.)

The instructions also permitted a jury to find that a defendant acted willfully

if he or she knew the actions would cause a standard to be violated, or failed to

take enough action necessary to comply with a standard. In a business under heavy

regulatory scrutiny, such an instruction is especially problematic in that it injects

elements of negligence into the criminal law and permits the jury to convict if it

believes that the defendant knew his or her conduct, in a general sense, would

cause more violations or permit violations to continue, without regard to whether

the defendant acted “with a bad purpose” or “with knowledge that his conduct was

unlawful.”

In sum, in an industry where regulatory citations will be received for myriad

unforeseen circumstances, it must be proven beyond a reasonable doubt that a

defendant charged with willfully violating the Act possessed the requisite mens

rea, and not merely that his or her acts or omissions caused or failed to eliminate

violations. Given the foregoing, the mining industry is concerned that evidence of

mere issuance of citations at a mine could potentially be misused to hold nearly

any employee, manager or corporate actor liable for conspiracy to commit future

violations of the Act.


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DISCUSSION

Coal and petroleum producers are unequivocally the most heavily regulated

industries in the nation.1 In the context of coal, in addition to the mandates of the

Mine Act, each operator2 is subject to countless state and federal laws and

regulations, ranging from environmental restrictions to workplace safety mandates.

In isolation, the number of citations issued by mine inspectors at any coal mine

may seem significant. However, when viewed in the proper context, the reality is

that such citations are an unavoidable fact of mining coal, given the ever-changing

geological conditions in mines coupled with the heightened level of regulatory

scrutiny under which mines carry out their daily operations.

MSHA’s History and Role

Under the mandates of the Act, the Department of Labor’s Mine Safety and

Health Administration (“MSHA”) is the agency tasked with the development and

enforcement of safety and health regulations governing the mining industry. The

Act states that it’s “first priority and concern” is “the health and safety” of coal

1 As of 2014, federal regulations targeted the energy industry, petroleum and

coal products manufacturing specifically, more than any other industry, with 25,482 regulations. This figure does not include state regulations. See Patrick McLaughlin & Oliver Sherouse, George Mason Univ. Mercatus Ctr., The McLaughlin-Sherouse List: The 10 Most-Regulated Industries of 2014, (Jan. 21, 2016), http://mercatus.org/publication/mclaughlin-sherouse-list-10-most-regulated-industries-2014 (last visited June 30, 2016).

2 “Operator” is defined to include any owner, lessee, or other persons who operates, controls, or supervises a coal or other mine or any independent contractor performing services or construction at such mine. 30 U.S.C. § 802(d).


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miners, and places “primary responsibility” for preventing unhealthy and unsafe

conditions on “the operators of such mines.” 30 U.S.C. §§ 801(a), 801(e); see also

Westmoreland Coal Co. v. FMSHRC, 606 F.2d 417, 419-20 (4th Cir. 1979). The

Act also established an independent administrative review panel, the Federal Mine

Safety and Health Review Commission (“FMSHRC”), to review MSHA's

enforcement actions.

MSHA Inspection and Enforcement

MSHA carries out its investigative and enforcement mandates by utilizing

mine inspectors. Under the Act, inspectors are authorized to regularly enter mines,

conduct inspections and search for regulatory violations. 30 U.S.C. § 813(a)

(inspectors “shall make frequent inspections and investigations”). Inspectors

investigate any identified violations and then issue citations. Id. MSHA's

jurisdiction also extends to contractors in related industries who provide services to

or at mine sites. Mine operators can even (and often do) receive what are referred

to as “overlapping” citations for an independent contractor employee’s violation of

a mining law, without regard to the operator’s knowledge of that violation.

Inspectors are required by law to make findings if they believe they have

witnessed a violation of the Act, and are further required to “describe with

particularity the nature of the violation” in a citation. Id. § 814(a). If an inspector

“finds that there has been a violation of any mandatory health or safety standard”


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and certain aggravating conditions exist, the inspector “shall include such findings

in any citation given to the operator.” Id. § 814(d).

MSHA Citations

The Act is a strict liability statute, and a mine operator may be held “liable

without regard to its own fault.” See Sec. of Labor v. Twentymile Coal Co., 456

F.3d 151, 155 (D.C. Cir. 2006). A mine operator can even receive “overlapping”

citations for violations by independent contractors working at mine sites.3

Operators are also liable for unknown and unexpected violations caused by

employees – even if the employee causes a violation notwithstanding extensive

training required by law or additional training required by the operator.4

3 See MSHA, Program Policy Manual, Vol. I at 29 (Nov. 2013), available at

http://arlweb.msha.gov/REGS/complian/ppm/PDFVersion/PPM%20Vol%20I.pdf. 4 Federal law requires that all miners receive basic and annual refresher

training, and that all mine operators maintain an effective training plan. Training requirements are governed by 30 C.F.R. §§ 48 and 46. Part 48 covers all underground mining and surface mining of coal. Under Part 48, new miners are required to have a minimum of 40 hours of training and pass a written exam prior to starting work as an inexperienced miner – 32 hours of new miner training and 8 hours of mine specific training – on the requirements of the Mine Act. Prior to being permitted to enter mine property, all miners must undergo mine site specific hazard training. This training must be renewed annually. Once a new miner arrives to work at the mine site, that miner is provided additional mine specific training which is approved by the MSHA area director. The miner is also provided task training on all regularly conducted activities which have not been performed previously and must be observed in the safe conduction of that activity prior to being permitted to perform it without immediate supervision. States such as West Virginia and Kentucky require additional training beyond that required under Part 48.


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If an “MSHA inspector discovers conditions that violate safety or health

standards, section 104 of the Act directs the Secretary to issue a citation or an order

to the mine’s ‘operator.’” Id. (citing 30 U.S.C. § 814(a)). Among other things,

MSHA citations reflect an inspector’s investigation and findings as to seriousness

and level of blame or culpability with respect to a violation.5 An inspector’s

issuance of a citation begins an enforcement process involving adjudication and

imposition of sanctions. Id. § 815. MSHA then assesses a civil penalty, (Id. §§

815(a), 820(a)), and the mine operator then has 30 days to contest the violation and

the penalty. A contest involves an adversarial and evidentiary administrative

proceeding that produces an administrative decision. Id. §§ 815(a), 815(d). Judicial

review of the final administrative order follows, including the possibility of

5 Pursuant to 30 C.F.R. § 100.3 (Table X), upon identifying a violation of the

Act, the inspector must make a determination of the operator’s negligence as follows:

No negligence - (The operator exercised diligence and could not have known of the violative condition or practice.) Low negligence - (The operator knew or should have known of the violative condition or practice, but there are considerable mitigating circumstances.) Moderate negligence - (The operator knew or should have known of the violative condition or practice, but there are mitigating circumstances.) High negligence - (The operator knew or should have known of the violative condition or practice, and there are no mitigating circumstances.) Reckless disregard - (The operator displayed conduct which exhibits the absence of the slightest degree of care.


7

offering further evidence to contest the violation charged in the citation and

enforced by administrative order. Id. § 816. If an MSHA citation involves a

“Possible Knowing/Willful Violation” violation, there can be parallel criminal

proceedings that can lead to additional fines and imprisonment. Id. § 816(d). In

fact, after writing a citation, MSHA inspectors have a duty to refer a “Possible

Knowing/Willful Violation” to superiors along with a variety of detailed

information relevant to possible criminal prosecution.6

The Act carries possible penalties of up to one year in federal prison, plus

monetary fines, for violations of MSHA standards, whether or not an accident or

injury occurred.7 Generally, MSHA refers criminal violations to the Department of

Justice where the “reckless disregard” box is checked on “unwarrantable failure”

citations and orders issued under section 104(d) of the Act, or where such

violations are coupled with an imminent danger order under section 107(a) of the

Act. MSHA can also seek criminal actions for giving advance notice of inspections

or for giving false statements or falsified documents in the course of an inspection

or incident investigation. Id. § 820(e).

6 See MSHA, Citation and Order Writing Handbook for Coal Mines and

Metal and Nonmetal Mines, Handbook Number PH13-I-1(1) at 60 (Dec. 2013), available at http://arlweb.msha.gov/READROOM/HANDBOOK/PH13-I-1.pdf.

7 The government must prove the following three elements in order to establish an offense under 30 U.S.C. § 820(d): (1) the defendant is an operator of a coal or other mine which is subject to the Act, (2) the defendant violated a mandatory health or safety standard or an order of withdrawal at that mine, and (3) the violation was willful.


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MSHA’s Narrow and Focused Enforcement on the Coal Industry

Unlike the enforcement arm of MSHA’s sister-agency, the U.S. Department

of Labor’s Occupational Health and Safety Administration (“OSHA”),8 MSHA

inspectors are required to inspect every single workplace under MSHA

jurisdiction. 30 C.F.R. § 842.11. Inspectors are required to visit every surface mine

twice a year and every underground mine once every quarter. Id. Some large

underground mines have at least a single MSHA inspector in the mine every single

day. By way of comparison, in 2015 OSHA conducted 35,820 inspections and

issued 65,044 citations.9 Estimates indicate that it would take OSHA

approximately 131 years to inspect each workplace under its jurisdiction just

once.10 Employers under OSHA’s jurisdiction may never experience an inspection.

Apart from certain programmed inspections, the major triggers for OSHA are

8 OSHA administers the Occupational Safety and Health Act of 1970 (“OSH

Act”). In general, the OSH Act covers all employers and their employees in the 50 states, the District of Columbia, Puerto Rico, and other U.S. territories. The OSH Act applies to employers and employees in such varied fields as manufacturing, construction, longshoring, agriculture, law and medicine, charity and disaster relief, organized labor, and private education. See 29 U.S.C. § 651; 29 C.F.R. §§ 1900-2400.

9 See OSHA, 2015 Enforcement Summary, https://www.osha.gov/dep/2015_enforcement_summary.html (last visited June 30, 2016).

10 See Randy Rabinowitz, N.Y. Times, OSHA Has a Big Job, on a Tiny Budget,http://www.nytimes.com/roomfordebate/2013/04/28/where-osha-falls-hort-and-why/osha-has-a-big-job-on-a-tiny-budget (last visited June 30, 2016).


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imminent danger situations, catastrophes, fatal accidents and hazard complaints.11

In contrast, in 2015, MSHA inspectors averaged 56 total inspection hours per mine

at a total of 13,281 mines, issuing 108,101 citations.12 The result is 743,736

inspection hours focused on mining, in a single year, in a single industry.

MSHA's authority differs from that of OSHA in another very significant

respect. Where an MSHA inspector identifies what is believed to be a safety

violation, the operator is typically required to abate the cited safety issue before

being given the opportunity to contest the violation. This sometimes involves

purchasing expensive equipment or undergoing significant repairs. And if the

company does not comply with the inspector's orders within a “reasonable time,” it

is subject to further violations and penalties. MSHA inspectors also have the

authority to shut down certain areas of the mine, or the entire mine, all before the

operator has an opportunity to challenge the inspector's determination.13 Such

power and process reveal the involved and significant role of MSHA in aiding

mine operators to mine safely and immediately correct even perceived violations.

11 See OSHA, OSHA Inspections, at 3-5 (OSHA 2098, 2002 rev.), available

at https://www.osha.gov/Publications/osha2098.pdf. 12 See MSHA, MSHA Fact Sheet Total Citations and Orders Issued Both

Coal and Metal/Non Metal Mines CY 2009-CY2015, available at https://www.msha.gov/sites/default/files/Total%20Citations%20and%20Orders .pdf.

13 See 30 C.F.R. § 104 et seq. Revised in 2013, section 104 eliminated the “potential pattern of violation” requirement that allowed mine operators additional time to avoid a “pattern of violation” notice and possible shutdown.


10

Given the government’s focused and aggressive regulation of the mining

industry, the receipt of citations has become a part of the operational process for

the coal mining industry. Mines receive citations for a variety of reasons – from the

constantly changing geological conditions of a mine, to administrative oversights,

enforcement trends and in some cases, simple mistakes by miners or supervisors.14

In every case, whether there is a violation is based upon the opinion of any given

inspector. The number of citations received by any given mine can be a misleading

indicator of overall regulatory and safety compliance. Even the most compliant

operators are issued citations given the strict liability imposed under the Act. To

illustrate, from January 1, 2008 through April 9, 2010, (the “Indictment Period”

(J.A. 62)), approximately 40 MSHA-regulated mines produced coal using a

method referred to as longwall mining.15 During that time, according to MSHA’s

14 See James A. Lastowka, Walking the MSHA Investigation Tightrope –

Implementing an Effective Inspection Management Plan, 17 E. Min. L. Inst. Ch. 8, at 252-54 (1997) (discussing the “four factors” – geology, human error, strict liability and recurring inspections – which contribute to liability under the Act), available at http://www.emlf.org/clientuploads/directory/whitepaper/Lastowka_97 _excerpt.pdf.

15 See Coal Age, Total Number of Longwall Faces Drops Below 50 (Feb. 12, 2009), (there were 44 active longwall mines in 2009, and per MDRS, approximately 40 of these were coal mines), http://www.coalage.com/features/449-total-number-of-longwall-faces-drops-below-50.html#V2GNgxLN5Rw (last visited June 30, 2016).


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Mine Data Retrieval System (“MDRS”), the least-cited mine received

approximately 204 citations.16

Because of the dynamic and constantly changing nature of coal mines,

violations of the Act can and do occur without any knowledge or fault on the part

of the operator.17 For instance, a crack could develop in the roof of the mine, even

though the area was previously inspected and found to be in compliance with the

mine’s roof control plan. The simple development and existence of the crack

would constitute a violation, with no negligence or fault on the part of the operator

under 30 C.F.R. § 100.3. The same applies if part of the “rib” (the wall of the

mine) has sloughed off, or if the operator uncovered a natural spring that resulted

in water in the mine.

In short, the very fact that citations are issued does not mean there were

violations, and the very fact that there are violations do not necessarily evince bad

conduct.

16 This data is publicly available at MSHA’s MDRS, located online at

http://arlweb.msha.gov/drs/drshome.htm. Raw datasets are available at the U.S. Department of Labor’s MSHA Enforcement Data website, located at: http://ogesdw.dol.gov/views/data_summary.php, as well as MSHA’s Open Government Initiative resource, located at http://arlweb.msha.gov/Open GovernmentData/OGIMSHA.asp.

17 See Lastowka, supra note 14, at 252-53.


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Mine Operator Reporting Obligations under the Dodd-Frank Act

Additionally, mine operators are legally obligated to monitor regulatory

compliance. On December 21, 2011, the Securities and Exchange Commission

(“SEC”) adopted amendments to its disclosure rules and forms to implement

Section 1503 of the Dodd-Frank Wall Street Reform and Consumer Protection Act,

12 U.S.C. § 5301 (the “Dodd-Frank Act”). Section 1503 of the Dodd-Frank Act

requires public companies that are operators, or have a subsidiary that is an

operator, of a coal or other mine to disclose certain information about mine health

and safety matters in their annual and quarterly reports filed with the Commission.

Specifically, the Dodd-Frank Act requires operators to provide mine-by-mine

totals of: significant and substantial violations of mandatory health or safety

standards under section 104 of the Mine Act for which the operator received a

citation from MSHA; orders under section 104(b) of the Mine Act; citations and

orders for unwarrantable failure of the mine operator to comply with section

104(d) of the Mine Act; flagrant violations under section 110(b)(2) of the Mine

Act; imminent danger orders issued under section 107(a) of the Mine Act; the

dollar value of proposed assessments from MSHA; notices from MSHA of a

pattern of violations or potential to have a pattern of violations under section


13

104(e) of the Mine Act; pending legal actions before the FMSHRC; and any

mining-related fatalities.18 See 17 C.F.R. § 229.104 (Item 104).

Using evidence of the knowledge of prior citations to support a conspiracy

theory of criminal liability for intent to violate mining law in the future places

operators in an untenable position where they are required to be apprised of

regulatory infractions, but subject to possible criminal charges for possessing such

knowledge. Such a conflict does not further the goals of either the Mine Act or the

Dodd-Frank Act, nor does it further the public policy of encouraging workplace

safety in the mining industry.

LEGAL ARGUMENT

The current state of the law requires that for a defendant to be convicted of

“willfully” violating the Mine Act, he or she must engage in conduct which

violates the Act with a “bad purpose” and with “knowledge that his or her conduct

is illegal.” Yet, the District Court’s jury instruction defining “willfully”

specifically permitted the jury to return a conviction based upon a lesser mens rea

than that required under the statute. (J.A. 235-37.)

It is a basic tenet of criminal law that “people are entitled to clear notice of

what the criminal law forbids, and courts must take care not to enlarge the scope of

18 For further information, please refer to the SEC’s Mine Safety Disclosure

Small Entity Compliance Guide, (Jan. 20, 2012), https://www.sec.gov/rules/final/2011/33-9286-secg.htm (last visited June 30, 2016).


14

illegality.” United States v. Genova, 333 F. 3d 750, 757-58 (7th Cir. 2003) (citing

Scheidler v. Nat’l Org. for Women, Inc., 537 U.S. 393 (2003); Bailey v. United

States, 516 U.S. 137 (1995); and McNally v. United States, 483 U.S. 350 (1987)).

The primary concern of the amici is that in a heavily-regulated industry such as

coal, it is imperative that the distinction between legal, prudent business decisions

and criminal conduct be clear and definite such that management personnel need

not fear personal criminal exposure when operating within the bounds of the law.

The allegations in the Superseding Indictment, particularly when combined with

the District Court’s jury instruction defining “willfully,” illustrate the potential

dangers in this area.

In Count One of the Superseding Indictment the defendant was charged with

conspiracy to willfully violate the Act in violation of 30 U.S.C. § 820(d). That

subsection provides:

Any operator who willfully violates a mandatory health or safety standard, or knowingly violates or fails or refuses to comply with any order issued [as set forth herein], shall, upon conviction, be punished by a fine of not more than $250,000, or by imprisonment for not more than one year, or both . . . .

30 U.S.C. § 820(d) (emphasis added). While instructing the jury regarding that

count, the District Court defined “willfully” in part as follows:

. . . [A] person willfully violates a mandatory health and safety standard if he knowingly, purposely and voluntarily commits an act forbidden by the standards or knowingly,


15

purposely and voluntarily fails to perform an act required by the standards.

A person with supervisory authority at or over a mine willfully fails to perform an act required by a mandatory safety or health standard if he knows that the act is not being performed and knowingly, purposely, and voluntarily allows that omission to continue. A person with supervisory authority at or over a mine also willfully violates a mandatory mine safety or health standard if he knowingly, purposely and voluntarily takes actions that he knows will cause a standard to be violated, or knowingly, purposely and voluntarily fails to take actions that are necessary to comply with a mandatory mine safety or health standard, or if he knowingly, purposely and voluntarily takes action, or fails to do so, with reckless disregard for whether that action or failure to act will cause a mandatory safety or health standard to be violated.

(J.A. 235-37.) (emphasis added)

A. The current state of the law requires that for a defendant to be convicted of “willfully” violating the Mine Act, he or she must engage in conduct which violates the Mine Act with a “bad purpose” and with “knowledge that his or her conduct is illegal.”

“The word ‘willfully’ is sometimes said to be ‘a word of many meanings’

whose construction is often dependent on the context in which it appears. Most

obviously it differentiates between deliberate and unwitting conduct, but in the

criminal law it also typically refers to a culpable state of mind.” Bryan v. United

States, 524 U.S. 184, 191 (1998) (quoting Spies v. United States, 317 U.S. 492, 497

(1943)) (citation omitted). In the context of the Act, it is clear from the use of the

word “willfully” in the first clause and “knowingly” in the second clause of section


16

820(d) that Congress intended to draw a clear distinction between the mens rea

required to sustain a conviction under the separate clauses.19 The District Court’s

jury instruction defining “willfully,” however, failed to draw that distinction and

instead blurred the line between “willful” criminal conduct and innocent conduct.

1. The District Court’s reliance on United States v. Jones in defining “willfully” was misplaced.

As the government has observed, “[t]he district court’s jury instructions on

willfulness under the Act derived directly from [United States v. Jones, 735 F.2d

785 (4th Cir. 1984)].” (ECF Doc. 18 at 21.) Indeed, the first paragraph of the

district court’s instruction defining “willfully” is identical to the instruction

approved by this Court in Jones:

A violation of a safety standard is done willfully if it is done knowingly, purposely and voluntarily either in intentional disobedience of the standard or in reckless disregard of its requirements. Reckless disregard means the closing of the eyes to or deliberate indifference toward the requirements of a mandatory safety standard, which standard the defendant should have known and had reason to know at the time of the violation. The term willfully requires an affirmative act either of commission or omission, not merely the careless omission of a duty.

19 The distinction is further underscored by the use of the term “knowingly”

under section 820(c), which imposes civil and criminal penalties on “any director, officer, or agent of [a] corporation who knowingly authorized, ordered, or carried out [a] violation . . . .” 30 U.S.C. § 820(c).


17

735 F.2d at 789 n.6 (emphasis added); see also United States v. Consolidation

Coal Co., 504 F.2d 1330 (6th Cir. 1974). The Jones court observed that willful

conduct, by definition,20 is “marked by careless disregard whether or not one has

the right so to act.” 735 F.2d at 789 (quoting United States v. Ill. Cent. R.R., 303

U.S. 239 (1938)).

The District Court’s reliance on Jones, however, is problematic in that the

facts and holdings in Jones fail to adequately distinguish between “willful”

conduct, which is made criminal under section 820(d), and “knowing” conduct,

which is made criminal in certain aspects under section 820(c). In Jones, the

defendants were charged under section 820(c) of the Act, which imposes criminal

liability on a corporate agent who “knowingly authorized, ordered, or carried out”

a violation. 735 F.2d at 789. However, the indictment alleged that the defendants

“willfully” violated a safety standard, and the district court instructed the jury that

it may convict if it found the defendants acted “willfully.” Id.

A proper reading of Jones begins with an understanding that the Court first

had to “determine whether [the jury instruction at issue] allowed the jury to convict

. . . under a lesser standard of culpability than that set forth in the Act.” Id.

20 The Jones court further noted that similar language had been used to

define “willful” under the OSHA regulations. 735 F.2d at 789 (citing Intercounty Constr. Co. v. OSHRC, 522 F.2d 777, 780 (4th Cir. 1975) (“Congress intended to punish the conduct of one who ‘intentionally disregards the statute or is plainly indifferent to its requirements,’ or, to punish the conduct of one who knew that his actions might violate the law.”)).


18

Comparing accepted definitions of “knowingly” with the instruction on “willfully”

given by the district court, the panel in Jones concluded that “the standard applied

by the [district] court, though couched in terms of willful conduct, set a level of

behavior at least as culpable as that required to convict for knowing conduct in

violation of the Act.” Id.

In short, the Jones court’s holding extended only to a defendant charged

with a violation of section 820(c) for knowing conduct. As will be discussed in

greater detail below, the current state of the law requires the government to prove a

heightened mens rea to convict a defendant charged with willful conduct.

After reaching its conclusion as to whether a conviction for “knowingly”

violating the Act under section 820(c) could be sustained under the jury instruction

defining “willfully,” the Jones court further confused the arenas of knowing and

willful conduct in addressing the defendants’ argument that it was necessary for

the prosecution to prove that they had knowledge of the terms of the safety

standards they were found to have violated. Answering that question, the Jones

panel held that “the prosecution must prove generally only that the defendant

knowingly committed the offensive act, not that the defendant knowingly violated

the law.” Id. at 790 (citing United States v. Int’l Minerals & Chem. Corp., 402 U.S.

558, 563 (1971); and United States v. Moore, 586 F.2d 1029, 1033 (4th Cir.

1978)). As will also be described in greater detail below, this language applies only


19

to the definition of “knowingly” and is inapposite when attempting to define

“willfully.”

The Jones court’s reliance on International Minerals in sustaining the

conviction for a knowing violation of the Act and resulting holding that the

prosecution need not prove that the defendant acted with knowledge that he was

violating the law do not extend to cases where a defendant is charged with a willful

violation of the Act. That such a holding does not extend to prosecutions under

section 820(d) is illustrated by International Minerals itself, which addressed the

“sole and narrow question [of] whether ‘knowledge’ of the regulation is also

required” to sustain a conviction of a defendant convicted when it was “charged

that [defendant] shipped sulfuric acid and hydrofluosilicic acid in interstate

commerce and ‘did knowingly fail to show on the shipping papers the required

classification of said property.’” 402 U.S. at 559-60 (emphasis added).

Accordingly, whatever reliance the district court and the government place on

Jones must be viewed in light of the limitations inherent in its holding, as well as

subsequent developments of the law which better define willful conduct.

2. The District Court’s definition of “willfully” failed to consider that the term has been further clarified since Jones was decided.

Since Jones was decided, the Supreme Court decided Bryan, supra, which

clarified the meaning of “willful” when used in the criminal law. In Bryan, it was


20

observed that “in the criminal law, [the term ‘willful’] typically refers to a culpable

state of mind,” and is used to refer to conduct “undertaken with a ‘bad purpose,’”

or with “knowledge that [one’s] conduct was unlawful.” 524 U.S. 184, 191-92

(1998) (citing United States v. Murdock, 290 U.S. 389 (1933) and Ratzlaf v. United

States, 510 U.S. 135, 137 (1994)). The Bryan court further distinguished between

“willful” conduct and “knowing” conduct, which “does not necessarily have any

reference to a culpable state of mind or to knowledge of the law.” 524 U.S. at 192.

In short, “‘the knowledge requisite to [a] knowing violation of a statute is factual

knowledge as distinguished from knowledge of the law.’” Id. (quoting Boyce

Motor Lines, Inc. v. United States, 342 U.S. 337, 345 (1952) (dissenting opinion)).

The Bryan court continued:

With respect to . . . categories of conduct that are made punishable . . . if performed “knowingly,” the background presumption that every citizen knows the law makes it unnecessary to adduce specific evidence to prove that “an evil-meaning mind” directed the “evil-doing hand.” More is required, however, with respect to the conduct . . . that is only criminal when done “willfully.” The jury must find that the defendant acted with an evil-meaning mind, that is to say, that he acted with knowledge that his conduct was unlawful.

Id. at 193. Although it is not required that a defendant know the particular

provisions of the statute he or she is accused of violating, it is clear that

“knowledge that the conduct is unlawful is all that is required.” Id. at 194.


21

Courts which have examined the distinction between “knowing” and

“willful” conduct since Bryan have aptly described the difference between the two

mentes reae. For example, the Ninth Circuit in United States v. Pasillas-Gaytan,

addressed the appeal of a defendant convicted of knowingly procuring, contrary to

law, his naturalization. 192 F.3d 864 (9th Cir. 1999). On appeal, the defendant

challenged the district court’s jury instructions which stated that the elements of

the offense were that the defendant “knowingly acquired naturalization” and that

the naturalization was contrary to the law. Citing both Bryan and International

Minerals21, the Ninth Circuit found that because the statute under which the

defendant was convicted “requires only ‘knowing’ conduct, rather than the stricter

‘willful’ requirement, [the defendant] did not have to know that procuring

naturalization was a criminal act, although such knowledge would of course suffice

to impose criminal liability.” Id. at 868. However, recognizing that “applying for

naturalization is almost always a voluntary, intentional act,” the Ninth Circuit went

on to note that “the statute requires a culpable state of mind as well,” specifically,

that “a defendant must know the facts that make his conduct illegal.” Id.

In sum, whatever this Court’s previous holding in Jones is taken to mean, it

is clear under the law today that “willful” conduct is a higher standard of

21 As noted above, the Jones court relied on International Minerals for the

proposition that “the prosecution must prove generally only that the defendant knowingly committed the offensive act, not that the defendant knowingly violated the law.” 735 F.2d at 790.


22

culpability than “knowing” conduct, and that for a defendant to be convicted of

willfully violating the Act, he or she must violate the Act with a “bad purpose” and

with “knowledge that his or her conduct is illegal.”

B. The District Court’s definition of “willfully” failed to include the necessary mens rea to sustain a conviction under 30 U.S.C. § 820(d).

Because the charges below concerned conspiring to willfully violate the Act

under 30 U.S.C. § 820(d), the government was required to prove that the violations

at issue were committed with a “bad purpose” and with “knowledge that his or her

conduct is illegal.” If the District Court’s charge permitted the jury to convict for a

lesser standard of culpability than that set forth in section 820(d), it is inconsistent

with the modern concept of willful criminal conduct. It is this danger of the

conviction of innocent operators and management personnel for conduct that falls

short of criminal with which the amici are most concerned.

Turning back to the instructions at issue here, the District Court’s definition

of “willfully” specifically permitted the jury to return a conviction based on

conduct which cannot be said to rise to the level of “willful” and which specifically

did not include the requisite mens rea that the defendant act with a “bad purpose”

and with “knowledge that his or her conduct is illegal.” Specifically, the instruction

permitted the jury to convict if it found “knowing” violations of the Act or conduct

that “caused,” “resulted in,” or “failed to prevent” violations without respect to any

mens rea.


23

Although the first paragraph of the instruction accurately mirrors the

instructions approved in Jones, 735 F.2d 785, and Consolidation Coal, 504 F.2d

1330, the remainder of the instruction departs wildly both from those instructions

and from the definition of “willful” required by Bryan. By expanding its definition

of “willfully,” the District Court enlarged the scope of illegality prescribed by the

Act. In addition, if that instruction stands, mine operators and their management

will lack the clear notice of what the criminal law forbids and therefore be unable

appropriately to conform their conduct to that law.

Starting in the second and third paragraphs, the District Court’s instruction

permitted the jury to conclude that a willful violation occurred if a defendant

“knowingly, purposely and voluntarily commits an act forbidden by the standards

or knowingly, purposely and voluntarily fails to perform an act required by the

standards,” or “knows that the act is not being performed and knowingly,

purposely and voluntarily allows that omission to continue.” (J.A. 235-36.) That

definition more closely tracks the definition of “knowingly,” which the District

Court had previously defined as “voluntarily and intentionally and not because of

mistake or accident or other innocent reason,” (J.A. 1554), and completely omits

any reference to knowledge of the Act’s requirements or some other “bad purpose”

as required by Bryan.


24

In this instance, the District Court’s instruction would permit a jury to

convict if it found that the defendant knowingly, purposely, and intentionally

engaged in conduct that turned out to be a violation of the Act, without regard to

whether the defendant did so with a “bad purpose” or in intentional disobedience

or reckless disregard of the Act’s requirements.

The fourth paragraph of the District Court’s instruction is problematic for

multiple reasons. First, like the second and third paragraphs, it too omits any

reference to actions undertaken with a “bad purpose” or with “knowledge that his

or her conduct is illegal.” By omitting the essential language to establish the mens

rea, this paragraph similarly runs afoul of the definition of “willfully” as

articulated in Bryan.

In addition, the fourth paragraph permits the jury to convict for conduct that

a defendant “knows will cause a standard to be violated,” or “fails to take actions

that are necessary to comply with” a standard. Because violations inexorably result

from coal production, there are countless ways in which a management employee’s

acts or omissions may be said to “cause” or “result in” additional violations

without any of those violations being said to be willful and without them being

performed with a “bad purpose” or with knowledge that the conduct violates the

law.


25

Although “[i]t is a general principle of causation in criminal law that an

individual (with the necessary intent) may be held liable if he is a cause in fact of

the criminal violation,” United States v. Kelner, 534 F.2d 1020, 1022 (2d Cir.

1976) (citing United States v. Giles, 300 U.S. 41, 48-49 (1937)) (emphasis added),

the District Court’s instruction omitted the mens rea element, thus permitting the

jury to convict for conduct which falls short of willful.

The danger in approving such an instruction is underscored by the nature of

MSHA inspections and the broad strict liability regulatory scheme described

herein. Under the government’s theory, if a management employee knows in a

general sense that mining coal will cause the mine to receive citations, or perhaps

that in theory some (but not all) citations could potentially be avoided by

expending additional money, that individual may be subject to criminal liability

without any reference to a culpable state of mind. Under that definition, without

proof that a defendant formed an intent to act, or fail to act, with an “evil purpose”

or “with knowledge that his conduct was unlawful,” doing anything short of

ceasing production altogether may be said in some sense to “cause a standard to be

violated” or to fail to “take actions that are necessary” to comply with a standard.

The criminal law should not be read so broadly to permit the prosecution of

individuals who lack such a mens rea where the government believes that the

person could have or should have done something more with respect to safety.


26

Operating a coal mine is a difficult venture that presents tough decisions for its

managers, who are required to navigate a regulatory minefield in order to operate a

successful company. Those decisions, especially with respect to production, safety,

and regulatory compliance, may at times be imperfect, prone to second-guessing,

and, despite the best intentions, even incorrect. However, those decisions should

not lead to criminal liability unless it is proven beyond a reasonable doubt that the

individual possessed the “evil purpose” necessary to establish that the conduct was

illegal, not just general knowledge of the effects of broad regulatory involvement.

CONCLUSION

Taking into consideration the foregoing landscape of MSHA regulation in

the coal industry, one can expect the number of citations issued to a given mine to

derive from a variety of factors including, but not limited to, size, number of

employees, production, geologic and environmental conditions. As such, it is

imperative to clearly and definitively distinguish between legal and acceptable

business practices for the lawful production of coal and willful criminal behavior.

Without that distinction, one person may face serious criminal exposure for setting

certain production goals while another may choose to insulate him or herself from

receiving important information regarding safety and MSHA compliance for fear

that such knowledge may subject them to criminal prosecution. In sum, the lack of

a clear distinction would serve the dual effect of potentially punishing legal


27

business practices while simultaneously deterring detailed oversight over important

aspects of company safety and regulatory compliance.

For these reasons, the amici respectfully submit that aspects of the

prosecution’s theory of liability, as well as the District Court’s rulings on the jury

instructions with respect thereto, should carefully be considered by this Court and

found to be inconsistent with modern common law concepts of criminally willful

conduct.

Respectfully Submitted,

/s/ Christopher A. Brumley Christopher A. Brumley Jeffrey M. Wakefield Nathaniel K. Tawney Wesley P. Page Bradley J. Schmalzer Flaherty Sensabaugh Bonasso PLLC P. O. Box 3843 Charleston, WV 25338-3843 Telephone: (304) 345-0200 Fax: (304) 345-0260 [email protected] Counsel for Amici Curiae


29

CERTIFICATE OF SERVICE

I hereby certify that on July 5, 2015, I electronically filed the foregoing with

the Clerk of the Court for the United States Court of Appeals for the Fourth Circuit

by using the CM/ECF system, which will send electronic notification of such filing

to all counsel of record.

/s/ Christopher A. Brumley Christopher A. Brumley Jeffrey M. Wakefield Nathaniel K. Tawney Wesley P. Page Bradley J. Schmalzer Flaherty Sensabaugh Bonasso PLLC P. O. Box 3843 Charleston, WV 25338-3843 Telephone: (304) 345-0200 Fax: (304) 345-0260 [email protected] Counsel for Amici Curiae


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