Fourth Circuit delves into the conundrum of willfulness

By Stuart Berman
Guest contributor

Veteran federal prosecutors and defense lawyers can pretty much recite in their sleep the standard jury instructions defining “knowingly” and “willfully.” In the commonly used Modern Federal Jury Instructions, knowingly means “to act voluntarily and deliberately, rather than mistakenly or inadvertently. A person acts knowingly if he acts intentionally and voluntarily, and not because of ignorance, mistake, accident, or carelessness.” Willfully means “to act knowingly and purposely, with an intent to do something the law forbids; that is to say, with bad purpose either to disobey or to disregard the law.” Simple enough, right?

Not so fast. In 2015, Donald Blankenship, the former chairman and CEO of Massey Energy Company, was tried in federal court in West Virginia of charges arising out of a fatal accident at the Upper Big Branch coal mine. Blankenship was acquitted of felony charges, but convicted of the Class A misdemeanor of conspiring to willfully violate federal mine safety laws and regulations. The court sentenced him to the statutory maximum of imprisonment (one year) and fine ($250,000). In a recent published opinion, United States v. Blankenship, the Fourth Circuit unanimously affirmed the conviction and sentence. Judge Wynn’s opinion illustrates the difficulties of knowing (so to speak) what “willfully” really means.

By any measure, Upper Big Branch was a mine safety disaster waiting to happen. Federal regulators repeatedly cited Massey for safety violations, including 549 times in 2009 alone. Blankenship received daily reports showing safety citations. A senior Massey safety officer warned him about risks. Focused on maximizing production regardless of safety conditions, Blankenship told the Massey employee in charge of Upper Big Branch 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.”[1] The jury convicted Blankenship of violating 30 U.S.C. § 820(d), which makes it a crime for “[a]ny operator [to] willfully violate[] a mandatory [mine] health or safety standard.” Such language is commonplace in regulatory statutes, where willful violation of a regulation criminalizes what would otherwise be a civil or administrative matter.

The district court’s instructions gave the jury four different ways to find a willful violation of a mine safety standard. A mine supervisor acts willfully if he (1) “knows that the act [required by the standard] is not being performed and knowingly, purposefully, and voluntarily allows that omission to occur”; (2) “knowingly, purposefully, and voluntarily takes action that he knows will cause a standard to be violated”; (3) “knowingly, purposefully, and voluntarily fails to take actions that are necessary to comply” with the standard; or (4) “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.”[2] Blankenship’s appeal focused on the fourth option. He claimed that allowing the jury to find willfulness on the basis of mere reckless disregard contravened two Supreme Court cases, Bryan v. United States[3] and Safeco Insurance Co. of America v. Burr.[4]

The Fourth Circuit disagreed, finding that neither case supports the proposition that reckless disregard cannot amount to criminal willfulness. Willfulness does not always require that the defendant act with “bad purpose,” but even if it did, precedent – the plurality opinion in a 1945 case, Screws v. United States[5] – recognized that “reckless disregard” can amount to acting with a “bad purpose” for purposes of “willfulness.” So did a civil firearms case decided by the Fourth Circuit in 2006,[6] where the court held “that the defendant’s repeated failure to comply with federal gun laws in the face of warnings by federal officials amounted to ‘willfulness[.]’” Under that theory, Blankenship could appropriately be convicted because he “was repeatedly informed of safety violations at Upper Big Branch, and notwithstanding that knowledge, … chose to prioritize production and pay fines rather than take steps necessary to prevent the safety violations from continuing.”[7]

With the big-picture issue resolved, the court turned to whether “reckless disregard” amounted to “willfulness” in the specific context of 30 U.S.C. § 820(d) – a lengthy discussion that can be left to aficionados of mine safety law. In brief, the court adhered to a 1984 precedent[8] that permitted such a prosecution and found that such liability was well‑grounded in the legislative history of the Mine Safety Act. Along the way, the court swatted aside elaborate arguments presented not just by Blankenship but also by amici curiae coal industry trade associations.[9]

At the end of the day, then, Blankenship leaves the world of specific-intent jury instructions pretty much where it has always been, and gives the government a plausible path to prosecute high-ranking executives who may not have been directly involved in the underlying regulatory violation.

And yet, the opinion leaves a significant issue unaddressed. For the past five years, white-collar criminal practitioners have been confronted with a visitor from the unlikely world of patent infringement law. In Global‑Tech Appliances, Inc. v. SEB S.A.,[10] the Supreme Court held that a plaintiff cannot prove the knowledge element of induced patent infringement by showing that the defendant acted with “deliberate indifference to a known risk that a patent exists.”[11] In an opinion that relied extensively on criminal precedents and the Model Penal Code, the Court distinguished between “willful blindness,” which is an acceptable substitute for actual knowledge,” and “deliberate indifference,” which is not.[12] With one exception, the courts of appeals have applied Global-Tech to criminal cases,[13] although an unpublished Fourth Circuit case citing Global-Tech mentioned the case without much in the way of analysis.[14] But if “deliberate indifference” is insufficient to prove the general-intent standard that a defendant acted knowingly, how can “reckless disregard” be enough to satisfy the specific intent standard that he or she acted willfully? What kind of jury instruction can satisfy potentially contradictory standards about whether acting like an ostrich establishes intent? As much as Blankenship seeks to reaffirm the existing framework of specific intent, determining the best structure for helping juries figure out exactly what was in a defendant’s mind at the time of an act remains as tricky a proposition as ever.

[1] Slip op. at 3-4.

[2] Slip op at 13-14.

[3] 524 U.S. 184 (1998)

[4] 551 U.S. 47 (2007)

[5] 325 U.S. 91, 101-04 (1945).

[6] RSM, Inc. v. Herbert, 466 F.3d 316, 320 (4th Cir. 2006).

[7] Slip op. at 18.

[8] United States v. Jones, 735 F.2d 785 (4th Cir. 1984).

[9] Slip op. at 25-30.

[10] 563 U.S. 754 (2011).

[11] Id. at 766.

[12] Id. at 766-70.

[13] The issue is discussed in United States v. Brooks, 681 F.3d 678, 702 n.19 (5th Cir. 2012), and United States v. Macias, 786 F.3d 1060, 1062 (7th Cir. 2015). See also United States v. Patel, 651 F. App’x 468, 472 (6th Cir. 2016); United States v. Sorensen, 801 F.3d 1217, 1233 (10th Cir. 2015); United States v. Galimah, 758 F.3d 928, 931 (8th Cir. 2014); United States v. Potter, 583 F. App’x 178, 180 (4th Cir. 2014); United States v. Yi, 704 F.3d 800, 804-805 (9th Cir. 2013); United States v. Denson, 689 F.3d 21, 24-25 (1st Cir. 2012). But see United States v. Clay, 832 F.3d 1259, 1313 (11th Cir. 2016) (declining to apply Global‑Tech, “a civil patent‑infringement case,” to a criminal health care fraud case), pet. for cert. filed sub nom. Farha v. United States, ___ S. Ct. ___ (U.S. Jan. 13, 2017) (No. 16‑888).

[14] Potter, 583 F. App’x at 180 (finding sufficient evidence that the defendant in a check fraud scheme took “deliberate actions to avoid learning” that the checks were fraudulent).