Case 5:14-cr-00244 Document 474 Filed 11/02/15 Page 1 of 6 PageID #: 8594

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
BECKLEY DIVISION
___________________________________
)
UNITED STATES OF AMERICA
)
)
v.
)
)
Criminal No. 5:14-cr-00244
DONALD L. BLANKENSHIP
)
___________________________________ )
MOTION TO STRIKE GOVERNMENT EXHIBIT 83, TO EXCLUDE
ANY SIMILAR EVIDENCE, AND FOR A CURATIVE INSTRUCTION
Government Exhibit 83 contains information concerning the total number of MSHA
citations and orders issued to all Massey mines and facilities regulated by MSHA (more than 100
mines and facilities in total) for 2007, 2008 and part of 2009. It also contains such information
for seven other coal companies. The defense objected to the admission of this exhibit, but the
Court overruled the defense objection. See Trial Tr. vol. 4, 705-07, Oct. 13, 2015.
The defense hereby moves to strike Government Exhibit 83, to exclude similar evidence
of the total number of MSHA citations and orders issued to Massey and other companies, and for
a curative instruction. The defense seeks this relief under the Fifth and Sixth Amendments to the
United States Constitution, Fed. R. Crim. P. 16, and Fed. R. Evid. 401, 402, and 403.1
Relevance
The total number of citations and orders issued to all Massey mines and facilities
regulated by MSHA and how they compare to the number of citations and orders issued to other
companies is not relevant to any count of the indictment.

1

The defense also objects to this evidence of citations and orders on hearsay and Confrontation Clause
grounds. See, e.g., Trial Tr. vol. 4, 705, Oct. 13, 2015; ECF No. 399. The Court, however, has overruled
the hearsay/Confrontation Clause objection, preserving Mr. Blankenship’s objection and exception.

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Count One of the indictment is expressly limited to conduct at the UBB mine and does
not concern any other Massey or non-Massey coal mine or facility. See Superseding Indictment
¶ 87 (limiting alleged conspiracy to conduct “at UBB”).
Counts Two and Three of the indictment also are limited to the conduct alleged at UBB.
The indictment alleges that Mr. Blankenship made false and misleading statements and
omissions “regarding his and Massey’s practice of willful violations of safety laws at that
mine.” Id. ¶ 3 (emphasis added). Indeed, the government has represented to the Court that “the
falsity and materiality of the statements . . . stem from the Indictment’s allegations of willful
law-breaking by Defendant and his co-conspirators” at UBB. ECF No. 129 at 38 (emphasis
added).2
Further, the government has expressly represented that the alleged false statement “did
not concern” the number of violations at UBB, but rather the intentionality of the conduct at
UBB. Id. at 37 (“The statements did not concern the fact that UBB had been the scene of many
safety violations.”). If the charges do not concern the number of violations at UBB, then they
most certainly do not concern the number of violations at other Massey coal mines and facilities,
much less those at other companies. Indeed, violations at other companies have nothing to do
with what happened at UBB and what was said in a statement about Massey’s policy towards the
citations and orders received at UBB.
Fatal Variance
For similar reasons, this evidence must be stricken and prohibited because it varies from
the charges in the indictment and thus violates Mr. Blankenship’s rights under the Fifth
Amendment. “Plainly and simply, a court cannot permit a defendant to be tried on charges not
2

In this regard, the plain text of the paragraph that contains the alleged false statement concerns only
UBB as well. Indeed, the sentences both before and after the one sentence in question concern UBB.

2

 Case 5:14-cr-00244 Document 474 Filed 11/02/15 Page 3 of 6 PageID #: 8596

made in the indictment against him.” United States v. Floresca, 38 F.3d 706, 711 (4th Cir. 1994)
(reversing conviction) (citation omitted). To do so would “destroy[] the defendant’s substantial
right to be tried only on charges presented in an indictment returned by a grand jury.” United
States v Stirone, 361 U.S. 212, 217 (1960) (reversing conviction).
Mr. Blankenship is not charged with conduct at any mine or facility other than UBB. Nor
are the statements charged in the indictment alleged to be false by virtue of conduct at any mine
or facility other than UBB.
Thus, while the government clearly seeks to use Exhibit 83 to obtain a conviction on the
basis of the total number of citations and orders at Massey writ large and how they compare to
those of other coal companies, that is not a charge asserted anywhere in the indictment, nor
passed on by the grand jury.
Unfair Surprise
This evidence also should be precluded on grounds of unfair surprise under both the Fifth
Amendment and Fed. R. Evid. 403. As noted above, the indictment provided no notice of the
theory the government currently is pursuing – that is, the theory that Mr. Blankenship is guilty by
virtue of the total number of citations and orders received Massey and by virtue of how this total
number compares to other companies. Nor did the government provide notice some other way.
To the contrary, the government articulated in its pleadings the much more limited theory pled in
the indictment, representing to the Court that the counts – including Counts Two and Three –
concerned only the conduct at UBB. For instance, it represented: “the falsity and the materiality
of the statements . . . stem from the Indictment’s allegations of willful law breaking” at UBB.
ECF 129 at 38; see also id. at 23-24, 32-33, 35.

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 Case 5:14-cr-00244 Document 474 Filed 11/02/15 Page 4 of 6 PageID #: 8597

This undisclosed surprise is unfairly prejudicial to the defense. As a result of it, the
defense has not had the opportunity to conduct analysis of the company’s citation numbers,
much less of the citation numbers of other companies to which the government makes
comparison. In other words, the surprise nature of this evidence has deprived Mr. Blankenship
of the opportunity to prepare a defense to these statistics.
Rule 16/Unequal Access to Data
If the total number of citations and orders issued to the more than 100 MSHA-regulated
mines and facilities operated by Massey is relevant (it is not), and if comparisons between the
Massey total and the totals of other companies is relevant (it is not), then also relevant is all of
the data about these company statistics in the government’s possession, custody, and control.
The public portion of the MSHA website, however, does not allow the defense to retrieve data by
company, but rather only by individual mine. However, the non-public MSHA database, about
which Mr. Childress testified, contains data by company.
The government, however, did not produce any of this data from the non-public MSHA
database pre-trial, as it was required to do under Rule 16 given its view that such data is relevant.
Indeed, it was not until October 30, 2015 – as the government neared the close of its case-inchief – that the government provided some such data. And it still has not produced all data
pertinent to the company comparisons in Exhibit 83 that is available in the non-public MSHA
database. Nor has it provided the defense with access to the database.
This is a plain Rule 16 violation. It also is a Fifth Amendment due process violation – as
the government possesses information about these company statistics that Mr. Blankenship and
his counsel have no access to and cannot explore to prepare the defense.

4

 Case 5:14-cr-00244 Document 474 Filed 11/02/15 Page 5 of 6 PageID #: 8598

Relief Sought
For these reasons, the defense respectfully requests that the Court (1) strike Government
Exhibit No. 83, (2) preclude the government from introducing any similar evidence, and (3)
provide a curative instruction advising the jury that the exhibit and all testimony relating to it are
stricken and that the document has no bearing on any charge in the case.
Dated: November 2, 2015

Respectfully submitted,
/s/ William W. Taylor, III
William W. Taylor, III
Blair G. Brown
Eric R. Delinsky
R. Miles Clark
Steven N. Herman
ZUCKERMAN SPAEDER LLP
1800 M Street, NW, Suite 1000
Washington, DC 20036
202-778-1800 (phone) / 202-822-8106 (fax)
wtaylor@zuckerman.com
bbrown@zuckerman.com
edelinsky@zuckerman.com
mclark@zuckerman.com
sherman@zuckerman.com
/s/ James A. Walls
James A. Walls (WVSB #5175)
SPILMAN THOMAS & BATTLE, PLLC
48 Donley Street, Suite 800
Morgantown, WV 26501
304-291-7947 (phone) / 304-291-7979 (fax)
jwalls@spilmanlaw.com
/s/ Alexander Macia
Alexander Macia
SPILMAN THOMAS & BATTLE, PLLC
P.O. Box 273
Charleston, WV 25321-0273
304-340-3800 (phone) / 304-340-3801 (fax)
amacia@spilmanlaw.com
Counsel for Donald L. Blankenship

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 Case 5:14-cr-00244 Document 474 Filed 11/02/15 Page 6 of 6 PageID #: 8599

CERTIFICATE OF SERVICE
I hereby certify that the foregoing has been electronically filed and service has been made
by virtue of such electronic filing this 2nd day of November, 2015 on:
R. Booth Goodwin, II
Steven R. Ruby
Gabriele Wohl
U.S. Attorney’s Office
P.O. Box 1713
Charleston, WV 25326-1713
R. Gregory McVey
U.S. Attorney’s Office
P.O. Box 1239
Huntington, WV 25714-1239

/s/ Eric R. Delinsky
Eric R. Delinsky