UNITED STATES of America, Plaintiff-Appellee, v. Donald L. BLANKENSHIP, Defendant-Appellant.
No. 16-4193
United States Court of Appeals, Fourth Circuit.
January 19, 2017
846 F.3d 663
Argued: October 26, 2016; Illinois Coal Association; Ohio Coal Association; West Virginia Coal Association, Amici Curiae.
III.
We do not take a position on the merits of Patterson‘s application for disability benefits. Instead, the dispute here arises from a problem that has become all too common among administrative decisions challenged in this court—a problem decision makers could avoid by following the admonition they have no doubt heard since their grade-school math classes: Show your work. The ALJ did not do so here, and this error rendered his decision unreviewable. See Kohler, 546 F.3d at 267.
On remand, the ALJ should follow the dictates of all applicable regulations. Reaching a decision in a well-reasoned and documented fashion serves multiple purposes. It provides an appropriate record for review. It also accords a claimant‘s arguments the procedure and respect they deserve. And of course, providing comprehensive review of a claimant‘s arguments is in the SSA‘s best interest—in the instant case, providing such review in a well-documented manner would allow a court to readily determine the merits of Patterson‘s other arguments related to the ALJ‘s (1) evaluation of a particular Listing, (2) consideration of her treating physician‘s opinion, and (3) definition of her sit/stand option in formulating her RFC assessment. For the reasons stated above, we reverse the district court‘s order with instructions to remand to the ALJ for appropriate review of Patterson‘s mental impairment.
REVERSED AND REMANDED WITH INSTRUCTIONS
Before GREGORY, Chief Judge, WYNN, Circuit Judge, and DAVIS, Senior Circuit Judge.
Affirmed by published opinion. Judge WYNN wrote the opinion, in which Chief Judge GREGORY and Senior Judge DAVIS joined.
WYNN, Circuit Judge:
Defendant Donald Blankenship (“Defendant“), former chairman and chief executive officer of Massey Energy Company (“Massey“), makes four arguments related to his conviction for conspiring to violate federal mine safety laws and regulations. After careful review, we conclude the district court committed no reversible error. Accordingly, we affirm.
I.
This case arises from a tragic accident on April 5, 2010 at the Upper Big Branch coal mine in Montcoal, West Virginia, which caused the death of 29 miners. Massey owned and operated the Upper Big Branch mine.
In the years leading up to the accident, the federal Mine Safety & Health Administration (the “Mine Safety Administration“) repeatedly cited Massey for violations at the Upper Big Branch mine of the Mine Safety & Health Act of 1977,
Not only did Defendant receive daily reports of the safety violations, beginning in mid-2009, but Defendant also received warnings from a senior Massey safety official about the serious risks posed by the violations at Upper Big Branch. And the safety official informed Defendant that “[t]he attitude at many Massey operations is ‘if you can get the footage, we can pay the fines.‘” J.A. 1907. Evidence suggested that Defendant had fostered this attitude by directing mine supervisors to focus on “run[ning] coal” rather than safety compliance and to forego construction of safety systems. J.A. 1902, 1924. Defendant also told the Massey employee in charge of the Upper Big Branch mine that “safety violations were the cost of doing business” and that it was “cheaper to break the safety laws and pay the fines than to spend what would be necessary to follow the safety laws.” J.A. 790-91.
Notwithstanding the numerous citations and warnings, Defendant had a “policy to invariably press for more production even at mines that he knew were struggling to keep up with the safety laws.” J.A. 793. For example, Defendant directed the supervisor of Upper Big Branch to reopen a mine section to production even though it lacked a legal return airway. Additionally, Massey employees advised Defendant that the lack of adequate staff was a key factor in the high number of safety violations at Upper Big Branch. Contrary to this advice, Massey reduced staff at the Upper Big Branch mine less than two months before the accident, a decision that Defendant would have had to approve given his close supervision of mine operations and staffing.
On November 13, 2014, a federal grand jury indicted Defendant for: (1) conspiring to willfully violate federal mine safety laws and regulations; (2) conspiring to defraud federal mine safety regulators; (3) making false statements to the Securities & Exchange Commission regarding Massey‘s safety compliance; and (4) engaging in securities fraud. The grand jury issued a superseding three-count indictment (the “Superseding Indictment“) on March 10, 2015, which combined the conspiracy counts into a single, multi-object conspiracy charge and included additional factual allegations. Following a six-week trial, a jury convicted Defendant of conspiring to violate federal mine safety laws and it acquitted him of the remaining indicted offenses. The district court sentenced Defendant to one year imprisonment and assessed a $250,000 fine, both of which were the maximum permitted by law. Defendant timely appealed.
On appeal, Defendant argues that the district court: (1) erroneously concluded that the Superseding Indictment sufficiently alleged a violation of
II.
First, Defendant argues that the district court erred in refusing to dismiss his indictment. When, as here, a defendant
To satisfy the Fifth and Sixth Amendments, “[a]n indictment must contain the elements of the offense charged, fairly inform a defendant of the charge, and enable the defendant to plead double jeopardy as a defense in a future prosecution for the same offense.” Id. Under this standard, “[i]t is generally sufficient that an indictment set forth the offense in the words of the statute itself, as long as those words of themselves fully, directly, and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the [offense] intended to be punished.” Id. (quoting Hamling v. United States, 418 U.S. 87, 117 (1974)). To the extent an indictment relies on a “general description based on the statutory language,” the indictment also should include “a statement of the facts and circumstances as will inform the accused of the specific [offense], coming under the general description.” Id. (quoting Hamling, 418 U.S. at 117-18).
The jury convicted Defendant of conspiring to violate
Notwithstanding that the Superseding Indictment tracked the language of the statute, Defendant asserts the Superseding Indictment was insufficient because it did not cite the specific mine safety regulations that he allegedly conspired to violate. We disagree.
As detailed above, when an indictment uses a “general description based on the statutory language,” the indictment satisfies the Constitution if it includes an accompanying statement of facts that apprises a defendant of the specific offense the government alleges the defendant committed. Id. at 171. Here, as the district court correctly noted, although the Superseding Indictment did not include citations to specific regulations, it included a thirty-page factual background that identified numerous mine safety regulations that Defendant allegedly conspired to violate, including: (1) mine ventilation regulations, (2) mine-safety examination requirements, (3) regulations regarding support of roof and walls, and (4) regulations governing accumulation of explosive coal dust. The Superseding Indictment also detailed how Defendant conspired to violate these and other regulations.
Defendant cites no authority holding that an indictment is insufficient for failing to include specific regulatory citations when the indictment describes at length which regulations the defendant violated and how he violated those regulations. And the two cases upon which Defendant principally relies—United States v. Hooker and United States v. Kingrea—are readily distinguishable.
In Hooker, this Court found an indictment insufficient when it failed to include an essential statutory element of the offense—that the conduct at issue affected
III.
Second, Defendant argues that the district court violated his rights under the Sixth Amendment Confrontation Clause by denying him the opportunity to engage in recross-examination of Chris Blanchard, the Massey employee in charge of the Upper Big Branch mine. The governing rule is that “[w]here new evidence is opened up on redirect examination, the opposing party must be given the right of cross-examination on the new matter, but the privilege of recross-examination as to matters not covered on redirect examination lies within the trial court‘s discretion.” United States v. Riggi, 951 F.2d 1368, 1375 (3d Cir. 1991) (quotation omitted); see also United States v. Fleschner, 98 F.3d 155, 158 (4th Cir. 1996) (“[I]f a new subject is raised in redirect examination, the district court must allow the new matter to be subject to recross-examination.“).
Although there is no bright line rule delineating what constitutes “new matter,” testimony elicited on redirect does not amount to “new matter” if the testimony only “expand[s] or elaborate[s] on the witness’ previous testimony.” United States v. Baker, 10 F.3d 1374, 1404-05 (9th Cir. 1993) (noting that “the authorities are devoid of any analysis of what constitutes ‘new matter.‘“), overruled in part on other grounds by United States v. Nordby, 225 F.3d 1053 (9th Cir. 2000). By contrast, redirect testimony raises “new matter” when it encompasses a subject outside of the scope of direct examination or when a witness offers materially different testimony regarding a subject first introduced on direct. See, e.g., id. at 1405 (concluding redirect raised new matter when witness testified on redirect that flask could produce significantly more methamphetamine than the amount he had testified it could produce on direct); United States v. Jones, 982 F.2d 380, 384 (9th Cir. 1992) (holding redirect testimony that, for the first time, placed defendant at crime scene constituted new matter); United States v. Caudle, 606 F.2d 451, 457-59 (4th Cir. 1979) (concluding redirect raised new matter when witness first testified to substance of report on redirect, even though witness had testified as to preparation and dissemination of report on direct).
Here, in reviewing whether the redirect examination raised new matter, the district court commendably received oral argument and, in concluding that redirect did not raise new matter, thoroughly reviewed the transcript of direct, cross, and redirect and explained how each issue raised on redirect did not constitute new matter. Defendant principally argues that the district court improperly denied him the opportunity to recross-examine Blanchard regarding (1) his testimony on redirect that he testified before the grand jury that Defendant told Blanchard that it was “cheaper to break the safety laws and pay the fines” than comply, J.A. 790, and (2) a number of safety citations first introduced on redirect to rebut Blanchard‘s testimony on cross-examination that many citations did not reflect serious violations.
Here, although Blanchard was an important witness, all of the subjects on which Defendant requested recross-examination were either effectively dealt with on cross-examination or cumulative of other evidence introduced at trial. For instance, on cross-examination, Blanchard testified unambiguously that he did not conspire with Defendant to violate mine safety laws, and Blanchard testified that the government threatened to prosecute him if he did not testify before the grand jury, during which he inculpated Defendant. J.A. 519-20. Likewise, both Defendant and the government introduced numerous safety citations at Upper Big Branch, through Blanchard and other witnesses.
Furthermore, Defendant‘s cross-examination of Blanchard lasted nearly five days—more time than direct and redirect examination combined—and therefore Defendant had an extensive opportunity to examine Blanchard. The government also presented other evidence and testimony that would allow the jury to determine Defendant prioritized coal production at the expense of safety compliance, including memoranda from Defendant to Massey employees and statements from Defendant to Blanchard. See, e.g., J.A. 1157-58 (Defendant telling Blanchard to reopen mine section even though it lacked legal return airway); J.A. 1902 (Defendant telling supervisors to “run coal” and not “build overcasts,” which are ventilation systems); J.A. 1924 (“You need to ... run some coal. We‘ll worry about ventilation or other issues at an appropriate time.“). And the government presented other evidence establishing that the citations reflected serious safety violations.
Most significantly, Defendant could have recalled Blanchard as a witness later in the trial. United States v. Gibson, 187 F.3d 631, at *5-6 (4th Cir. 1999) (table) (holding denial of recross harmless because defendant could recall witness); United States v. Ross, 33 F.3d 1507, 1518 (11th Cir. 1994) (same); Hale v. United States, 435 F.2d 737, 752 n.22 (5th Cir. 1970) (holding denial of recross did not violate Confrontation Clause when defendant had opportunity to recall witness). Accordingly, the district court did not reversibly err in denying Defendant an opportunity to engage in recross-examination of Blanchard.
IV.
Next, Defendant argues that the district court errantly instructed the jury regarding the meaning of “willfully” violating federal mine safety and health standards for purposes of
Defendant takes issue with the following instructions regarding the meaning of “willfully” in
- 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, purposefully, 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, purposefully, and voluntarily takes actions that he knows will cause a standard to be violated[;]
- [O]r knowingly, purposefully, and voluntarily fails to take actions that are necessary to comply with the mandatory mine safety or health standard[;]
- [O]r if he knowingly, purposefully, 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. 1555-57.
A.
Defendant first argues that the fourth instruction improperly allowed the jury to convict Defendant for “reckless” conduct, rather than requiring the government to prove Defendant “knew his conduct would cause a violation of safety regulations ... and was unlawful.” Appellant‘s Br. at 44. In particular, Defendant contends that the Supreme Court‘s decisions in Bryan v. United States, 524 U.S. 184 (1998), and Safeco Insurance Co. of America v. Burr, 551 U.S. 47 (2007), bar courts from defining “willfully” in criminal statutes in terms of “reckless disregard.”
1.
In Bryan, the Supreme Court reviewed whether the government introduced sufficient evidence to convict the defendant of “willfully” violating the federal Gun Control Act, which, among other things, prohibits dealing in firearms without a license. 524 U.S. at 189; see also
In reaching this conclusion, the Court noted that “willfully” is “a word of many meanings whose construction is often dependent on the context in which it appears.” Id. at 191 (internal quotation omitted). The Court said that, “[a]s a general matter,” in the criminal context, “willful” means an act “undertaken with a ‘bad purpose,‘” and a “‘willful’ violation of a statute” occurs when “the defendant acted with knowledge that his conduct was unlawful.” Id. at 191-92 (quoting Ratzlaf v. United States, 510 U.S. 135, 137 (1994)).
Safeco involved a civil action under
Neither Bryan nor Safeco supports Defendant‘s position that reckless disregard cannot amount to criminal willfulness. In particular, Bryan and Safeco emphasized that “willful” has multiple meanings and that the “bad purpose” language upon which Defendant relies defines willful only as a “general matter“—i.e. not in all circumstances. Additionally, even if Bryan and Safeco had required a showing that a Defendant acted with a “bad purpose“—which they did not—the Supreme Court long ago recognized—in a decision relied on in Bryan—that “reckless disregard” can amount to acting with a “bad purpose” for purposes of criminal “willfulness.” Screws v. United States, 325 U.S. 91, 101-04 (1945) (plurality op.).2 And Bryan—upon which Safeco entirely relied—expressly recognized that “conduct marked by careless disregard” constitutes “willfulness.” 524 U.S. at 191 n.12. Accordingly, Bryan and Safeco did not overturn longstanding Supreme Court precedent holding that reckless disregard can amount to criminal willfulness.
We further point out that this Court repeatedly has held, post-Bryan and Safeco, that “reckless disregard” and “plain indifference” can constitute criminal “willfulness.” For example, in a decision addressing the meaning of “willfully” in the civil and criminal penalty provisions in federal gun control laws,3 we concluded that “[a]t its core [willful] describes conduct that results from an exercise of the will, distinguishing ‘intentional, knowing, or voluntary action from that which is ‘accidental’ or inadvertent.” RSM, Inc. v. Herbert, 466 F.3d 316, 320 (4th Cir. 2006). Accord-
Applying this standard to the conduct at issue, we held that the defendant‘s repeated failure to comply with federal gun laws in the face of warnings by federal officials amounted to “willfulness“:
To be sure, a single, or even a few, inadvertent errors in failing to complete forms may not amount to “willful” failures, even when the legal requirement to complete the form was known. Yet at some point, when such errors continue or even increase in the face of repeated warnings given by enforcement officials, accompanied by explanations of the severity of the failures, one may infer as a matter of law that the licensee simply does not care about the legal requirements. At that point, the failures show the licensee‘s plain indifference and therefore become willful.
RSM, 466 F.3d at 322 (emphasis retained). Thus, we have held that “not car[ing]” about adherence to legal requirements amounts to criminal “willfulness,” which is what the fourth instruction stated here. Notably, RSM‘s description of the defendant‘s willful conduct tracks the government‘s theory of the case here: Defendant was repeatedly informed of safety violations at Upper Big Branch, and notwithstanding that knowledge, Defendant chose to prioritize production and pay fines rather than to take steps necessary to prevent the safety violations from continuing.
Following RSM, which post-dated Bryan but pre-dated Safeco, we held that Safeco did not call into question RSM‘s analysis of the meaning of “willfully.” Am. Arms Int‘l v. Herbert, 563 F.3d 78, 85-86 (4th Cir. 2009). Additionally, in American Arms, we expressly equated “plain indifference” with “reckless disregard” for purposes of finding willfulness. Id. at 87.
In interpreting a variety of criminal statutes, other Circuits have reached the same conclusion: post-Bryan and Safeco, “reckless disregard” still can—and does—constitute criminal willfulness. See, e.g., United States v. Trudeau, 812 F.3d 578, 588-89 (7th Cir. 2016) (concluding that because meaning of “willful” is “influenced by its context,” Safeco did not bar defining willful in terms of reckless disregard); United States v. Anderson, 741 F.3d 938, 948 (9th Cir. 2013) (stating that “recklessness” is a “valid theor[y]” for establishing defendant “willfully” engaged in criminal copyright infringement); United States v. George, 386 F.3d 383, 392-96 (2d Cir. 2004) (Sotomayor, J.) (concluding, after lengthy survey of case law, that Bryan did not displace earlier Supreme Court case law holding criminal “willfullness” requires “only the minimum mens rea necessary to separate innocent from wrongful conduct” and therefore interpreting “willfully” requirement in criminal passport fraud statute as proscribing “false statements that are knowingly included in the passport application“); United States v. Johnstone, 107 F.3d 200, 208-09 (3d Cir. 1997) (“‘[W]illful[ly]’ in [federal criminal civil rights statute,
In sum, contrary to Defendant‘s position, Bryan and Safeco did not prohibit the use of “reckless disregard” in defining “willfully” for purposes of criminal statutes.
2.
Having determined that “reckless disregard” can constitute criminal “willfulness,” we now must determine whether the district court properly concluded that “reckless disregard” amounts to willfulness for purposes of
Defendant contends that we should disregard Jones because, notwithstanding that the district court instructed the jury on the meaning of “willfully,” Jones involved a prosecution under a provision in the Mine Safety Act with a “knowing,” as opposed to “willful,” mens rea requirement. But we see no reason to depart from Jones’ statement that, for purposes of the Mine Safety Act‘s criminal provision, willfulness encompasses reckless disregard—nor does Defendant provide us with any.
As noted previously, we explained in RSM that an inference of plain indifference—and therefore willfulness—arises from evidence of “continu[ing]” or “creas[ing]” violations “in the face of repeated warnings given by enforcement officials.” 466 F.3d at 322. Put differently, a “long history of repeated failures, warnings, and explanations of the significance of the failures, combined with knowledge of the legal obligations, readily amounts to willfulness.” Id.
Other courts have reached the same conclusion. See, e.g., Screws, 325 U.S. at 104-05 (plurality op.) (holding that reckless disregard amounted to criminal willfulness and stating that “contin[uing]” or “persist[ing]” in action that violates established law constituted willfulness under that definition); United States v. Jeremiah, 493 F.3d 1042, 1045-46 (9th Cir. 2007) (“[A] finding of willfulness was supported by [defendant‘s] repeated failure to make restitution payments on time.“); Rapone, 131 F.3d at 195 (holding defendant‘s failure to heed “repeated warnings” of noncompliance provided basis for factfinder to conclude defendant acted “willfully“); United States v. Garcia, 762 F.2d 1222, 1225-26 (5th Cir. 1985) (finding that defendant‘s continued violation of particular provision in tax code in the face of “repeated” warnings from government officials constituted willfulness); cf. Willingham Sports, Inc. v. Bureau of Alcohol, Tobacco, Firearms & Explosives, 415 F.3d 1274, 1277 (11th Cir. 2005) (“[A defendant‘s] repeated violations after it has been informed of the regulations and warned of violations does show purposeful disregard or plain indifference.“).
That (1) Congress imposed enhanced penalties on mine operators in order to punish operators who “chronic[ally]” and “habitual[ly]” violate mine safety laws, rather than than to devote resources to safety compliance, and that (2) courts construe willfulness in terms of reckless disregard when a statute is intended to levy criminal penalties on defendants who persist in violating a federal law notwithstanding repeated warnings of the violations, further indicates Congress intended to define “willfully” in
Finally,
3.
Defendant and amici coal industry trade associations nonetheless maintain that, as a matter of policy, Congress did not intend for reckless disregard to amount to willfulness, as that term is used in
First, the legislative history of the Mine Safety Act contradicts Defendant‘s and amici‘s argument that Congress did not intend to punish mine operators for the type of budgeting and business decisions the government challenged here. In particular, Congress repeatedly stated that the Mine Safety Act‘s enforcement provisions were designed to deter mine operators from choosing to prioritize production over safety compliance on grounds that it was “cheaper to pay the penalties than to strive for a violation-free mine.” S. Rep. No. 95-181, at 9; see also id. at 4 (expressing concern that “[m]ine operators still find it cheaper to pay minimal civil penalties than to make the capital investments necessary to adequately abate unsafe or unhealthy conditions“). To that end, Congress said that operators should not balance the financial returns to increasing output against the costs of safety compliance. See id. at 9 (“The Committee strongly believes that industry-wide compliance with strong health and safety standards must be a basic ground rule for increased production.” (emphasis added)).
Congress imposes penalties on corporate officers—like Defendant—alongside enterprise penalties because it is often impossible to impose monetary penalties on corporations large enough to deter corporate misconduct. John C. Coffee, “No Soul to Damn: No Body to Kick“: An Unscandalized Inquiry into the Problem of Corporate Punishment, 79 Mich. L. Rev. 386, 390-91 (1980) (“[O]ur ability to deter the corporation may be confounded by our inability to set an adequate punishment cost which does not exceed the corporation‘s resources.“). And when the returns to violating a law exceed a potential corporate fine, discounted by the likelihood of the government imposing the fine, corporate officers who do not face personal liability will treat “criminal penalties as a ‘license fee for the conduct of an illegitimate business‘“—as the government‘s evidence showed Defendant did here. See United States v. Park, 421 U.S. 658, 669 (1975) (quoting United States v. Dotterweich, 320 U.S. 277, 282-83 (1943)).
Second, regarding amici‘s contention that the “unavoidability” and “inexorability” of mine safety violations precludes use of such violations to establish criminal intent, we rejected an identical argument in RSM. There, the defendant—a firearms dealer—argued that its repeated failure to correctly fill out forms establishing that a customer was qualified to purchase a firearm did not amount to willfulness because, given the complexity of the regulatory regime and the number firearms the defendant sold, “human errors were virtually inevitable.” 466 F.3d at 322. In rejecting defendant‘s argument, we explained that even though “inadvertent” violations may not amount to willfulness, continuing violations in “the face of repeated warnings” allows a jury to infer criminal intent. Id. We see no reason to diverge from that principle here, particularly in light of the parallels between
Next, Defendant argues that defining willfully in terms of reckless disregard impermissibly allowed the jury to convict him even if it concluded that Defendant desired “to eliminate and reduce the [safety] hazards and violations” at the Upper Big Branch mine. Appellant‘s Br. at 54. But just as the law holds criminally liable an individual who drives a car with brakes he knows are inoperable, even if he does not intend to harm anyone, e.g., State v. Conyers, 506 N.W.2d 442, 443-44 (Iowa 1993), so too
Finally, contrary to amici‘s assertion, defining willfully in terms of reckless disregard should not deter mine operators from engaging in detailed safety oversight. The Mine Safety Act declares that “operators“—like Defendant—“have the primary responsibility to prevent ... unsafe and unhealthful conditions and practices” at mines.
In sum, the district court properly instructed the jury that it could conclude that Defendant “willfully” violated federal mine safety laws if it found that Defendant acted or failed to act with reckless disregard as to whether the action or omission would lead to a violation of mine safety laws.
B.
In addition to taking issue with the “reckless disregard” language in the fourth instruction, Defendant also suggests that the first, second, and third instructions improperly permitted the jury to convict Defendant even if he did not know that a particular act or omission would lead to a violation of mine safety laws and regulations. Again, we disagree.
The first instruction stated that a defendant 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, purposefully, and voluntarily allows that omission to continue.” J.A. 1556. Defendant maintains that this instruction “permits a finding of willfulness ... even if a person does not know that ‘the act’ in question is required by safety regulations.” Appellant‘s Br. at 46. But by using the definite article “the” to modify “act,” the instruction required that the jury find that Defendant knew the act was “required by a mandatory safety or health standard.” Cf. Gale v. First Franklin Loan Svcs., 701 F.3d 1240, 1246 (9th Cir. 2012) (“In construing a statute, the definite article ‘the’ particularizes the subject which it precedes and is a word of limitation.” (alterations and quotations omitted)).
The second instruction described willfully as “knowingly, purposefully, and voluntarily tak[ing] actions that he knows will cause a standard to be violated.” J.A. 1556. The third instruction stated that an operator acts willfully if he “knowingly, purposefully, and voluntarily fails to take actions that are necessary to comply with the mandatory mine safety or health standard.” Id. Contrary to Defendant‘s argument, the use of “that” in each of these instructions required the jury to conclude that Defendant knew the action or omission would “cause a standard to be violated” or was “necessary to comply with the mine safety or health standard.” See The Chicago Manual of Style § 5.220 (16th ed. 2010) (explaining that “that” is a “relative pronoun ... used restrictively to narrow a category or identify a particular item being talked about“).
Accordingly, all three instructions reflect the “bad purpose” mens rea discussed in Bryan because they required that the jury conclude that Defendant took actions that he knew would lead to violations of safety laws or failed to take actions that he knew were necessary to comply with federal mine safety laws—i.e., Defendant knew that his actions and omissions would lead to violations of mine safety laws and regulations.
V.
Finally, Defendant asserts that the district court reversibly erred in providing the so-called “two-inference” instruction, pursuant to which it instructed the jury that if it “view[ed] the evidence in
As explained previously, we review de novo whether a jury instruction correctly stated applicable law, assessing “whether taken as a whole and in the context of the entire charge, the instructions accurately and fairly state the controlling law.” Jefferson, 674 F.3d at 351 (quotation omitted); see also United States v. Khan, 821 F.2d 90, 92 (2d Cir. 1987) (determining whether use of “two-inference” instruction constituted reversible error by assessing whether “the court‘s charge, taken as a whole, properly instructed the jury on reasonable doubt“).
Although this Court has not had an opportunity to pass judgment on the two-inference instruction, our Sister Circuits disfavor it. See, e.g., United States v. Dowlin, 408 F.3d 647, 666 (10th Cir. 2005); United States v. Jacobs, 44 F.3d 1219, 1226 (3d Cir. 1995); Khan, 821 F.2d at 93. In Khan, the Second Circuit explained that, although correct as a matter of law, the two-inference instruction “by implication suggests that a preponderance of the evidence standard is relevant, when it is not.... It instructs the jury on how to decide when the evidence of guilt or innocence is evenly balanced, but says nothing on how to decide when the inference of guilt is stronger than the inference of innocence but no[t] strong enough to be beyond a reasonable doubt.” 821 F.2d at 93. We agree and therefore direct our district courts not to use the two-inference instruction going forward.
Although we disapprove of the two-inference instruction, the district court‘s use of that instruction here does not amount to reversible error because, when viewed as a whole, the court‘s instructions correctly stated the government‘s burden. In particular, the court instructed the jury several dozen times that it needed to find Defendant guilty beyond a reasonable doubt, including immediately before and after it used the two-inference instruction. Likewise, the court correctly instructed the jury regarding the presumption of innocence and the government‘s burden. Accordingly, the district court did not reversibly err in providing the two-inference instruction. See, e.g., United States v. Soto, 799 F.3d 68, 96-97 (1st Cir. 2015) (rejecting challenge to “two-inference” instruction under “any standard of review” because “there was no ‘reasonable likelihood’ that the jury misunderstood the government‘s burden“); Dowlin, 408 F.3d at 666-67 (“The instructions as a whole told the jury not to convict [the defendant] unless the government proved his guilt beyond a reasonable doubt.“); United States v. Creech, 408 F.3d 264, 268 (5th Cir. 2005) (finding no reversible error in use of two-inference instruction when district court repeatedly informed the jury of the presumption of innocence, the “heavy burden borne by the government,” and that the law does not require the defendant to prove his innocence); Khan, 821 F.2d at 92 (finding use of two-inference instruction not reversible error because “[t]he judge instructed the jury several times on the meaning of reasonable doubt and specifically told the jury to acquit unless it was ‘satisfied beyond a reasonable doubt of the defendant‘s guilt‘“).
VI.
For the foregoing reasons, we affirm the District Court‘s judgment.
AFFIRMED