UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 20-6330

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. DONALD L. BLANKENSHIP,

Defendant - Appellant.

Appeal from the United States District Court for the Southern District of West Virginia, at Beckley. Irene C. Berger, District Judge. (5:14-cr-00244-1; 5:18-cv-00591)

Argued: September 22, 2021 Decided: December 7, 2021

Before NIEMEYER, DIAZ, and QUATTLEBAUM, Circuit Judges.

Affirmed by published opinion. Judge Niemeyer wrote the opinion, in which Judge Diaz and Judge Quattlebaum joined.

ARGUED: James McCall Cagle, Charleston, West Virginia, for Appellant. Thomas Ernest Booth, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON BRIEF: Nicholas L. McQuaid, Acting Assistant Attorney General, Robert A. Zink, Acting Deputy Assistant Attorney General, Criminal Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. NIEMEYER, Circuit Judge:

In this proceeding under 28 U.S.C. § 2255, Donald Blankenship seeks to vacate his conviction for conspiring to willfully violate coal mine safety standards, alleging that the federal prosecutors violated his due process rights in failing to produce documents favorable to him before trial, in violation of Brady v. Maryland, 373 U.S. 83 (1963) (requiring the government to disclose exculpatory evidence), and Giglio v. United States, 405 U.S. 150 (1972) (requiring the government to disclose impeaching evidence).

Following an explosion at Massey Energy Company’s Upper Big Branch coal mine in Montcoal, West Virginia, that killed 29 miners, Blankenship — who was at the time of the explosion the Chairman of the Board and CEO of Massey — was charged with and convicted of conspiring to willfully violate mandatory federal mine safety and health standards, in violation of 30 U.S.C. § 820(d) and 18 U.S.C. § 371. The trial evidence centered on the allegation that Blankenship had willfully failed to address numerous notices of mine safety violations that Massey had received, favoring coal-mine production and profits over safety.

Following the trial and in response to Blankenship’s ongoing requests, the government produced documents to Blankenship that it had not produced before trial and that it should have produced under applicable Department of Justice (“DOJ”) policies. Indeed, an internal DOJ review concluded that prosecutors in the case failed, as DOJ policies require, to “develop a process for review of pertinent information to ensure that discoverable information [was] identified.” The suppressed documents fell broadly into two categories: (1) memoranda of interviews conducted of seven Massey employees and

2 (2) internal emails and documents of the Mine Safety and Health Administration (“MSHA”) showing, among other things, some MSHA employees’ hostility to Massey and Blankenship.

The district court, recognizing that the documents were improperly suppressed, concluded nonetheless that they were not material in that there was not a reasonable probability that they would have produced a different result had they been disclosed before trial. The court stated that “after thorough review, nothing ha[d] been presented to undermine confidence in the jury’s verdict.” It accordingly denied Blankenship’s § 2255 motion.

Having given the record a close review ourselves, we reach the same conclusion as the district court. Accordingly, we affirm.

I

Before the explosion at the Upper Big Branch mine, which occurred on April 5, 2010, Massey had repeatedly been cited with respect to that mine for violations of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. Indeed, in the 15 months pr