Case 5:14-cr-00244 Document 481 Filed 11/06/15 Page 1 of 8 PageID #: 8718

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 COMPEL COMPLIANCE WITH SUBPOENA, FOR PRODUCTION OF
BRADY, RULE 16, AND JENCKS MATERIAL, AND FOR EVIDENTIARY HEARING
Defendant Donald L. Blankenship, through counsel, hereby moves for an order directing
MSHA to comply with the subpoena issued by this Court on September 9, 2015, and for the
government to produce all Brady, Rule 16, and Jencks Act material. The defense makes this
motion because it recently learned of the destruction of documents regarding the Upper Big
Branch Mine (“UBB”) by MSHA employee Joseph Mackowiak. Mr. Blankenship also moves
for an evidentiary hearing on MSHA’s and the government’s efforts to locate and produce
discoverable documents and the possible destruction of documents by MSHA. These documents
may contain exculpatory evidence that must be produced under Brady or which are responsive to
Mr. Blankenship’s document requests and subpoena.

The documents also may be Jencks

material for witness Bill Ross and other witnesses called by the government to testify at trial.
FACTS
In October 2010, Performance Coal Company filed a Freedom-of-Information-Act
lawsuit against the Department of Labor and the Mine Safety and Health Administration,
charging that the agencies had failed to comply with several FOIA requests the company had
made for records relating to the Upper Big Branch mine. See Performance Coal Co., et al. v.
U.S. Dep’t of Labor, et al., No. 10-cv-01698, ECF No. 1 (D.D.C. Oct. 5, 2010). The requested

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records included, among other things, documents related to UBB for the time period of January
1, 2009 to April 5, 2010, records relating to rock dust samples taken from UBB on March 15,
2010, records related to submissions to the Mine Plan Approval system, and records relating to
previous methane outbursts and explosions in the mine. See Performance Coal Co., et al. v. U.S.
Dep’t of Labor, et al., No. 10-cv-01698, ECF No. 57 at 2-5 (D.D.C. Mar. 8, 2012).
In the course of that litigation, the defense has recently learned, Performance filed a
motion for discovery to investigate MSHA’s efforts to frustrate its FOIA requests, in particular,
allegations that MSHA had illegally destroyed documents related to UBB and the 2010
explosion at the mine. See Performance Coal Co., et al. v. U.S. Dep’t of Labor, et al., No. 10cv-01698, ECF No. 34-1 at 39-43 (D.D.C. June 9, 2011).

Performance submitted two

declarations in support of that motion: one from Bill Ross, a former MSHA official and then
Massey employee, and one from Phillip Ellis, an employee of Independence Coal Company. See
Performance Coal Co., et al. v. U.S. Dep’t of Labor, et al., No. 10-cv-01698, ECF Nos. 34-26
and 34-27 (D.D.C. June 9, 2011). In these declarations, which are attached to this motion as
Exhibits A and B, Mr. Ross and Mr. Ellis recounted a conversation they had had with an MSHA
employee who told them that Mackowiak had illegally destroyed documents related to UBB. In
testimony given in Mr. Blankenship’s trial outside of the presence of the jury, Mr. Ross
confirmed the statements in his declaration.
Mr. Ross’s declaration explained that, while he was a ventilation supervisor at MSHA, he
regularly saved important documents in accordance with the agency’s record-keeping
requirements, and that “[u]pon [his] departure from the agency [in 2008], there should have been
a significant number of critical documents related to Upper Big Branch mine that had been
preserved in MSHA’s files.” Ross Decl. ¶ 11. After Mr. Ross left his job with MSHA, he went

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to work for Massey. See id. ¶ 2. Mr. Ross recounted that in 2010, while working for Massey, he
made several visits with Mr. Ellis to MSHA’s facility in Mt. Hope, West Virginia, where they
met with Joseph Mackowiak, who had taken over Mr. Ross’s old position as ventilation
supervisor at MSHA. See id. ¶¶ 12, 16. During one such visit, Mr. Ross and Mr. Ellis spoke
with Doris Chambers, Mr. Ross’s former secretary at MSHA. See id. ¶¶ 14, 17. Mr. Ross
described their exchange:
During our conversation, the topic of the accident at the Upper Big
Branch mine came up. I inquired about an MSHA report from
2004 about a floor burst at Upper Big Branch mine that I was
familiar with from my time working at MSHA. This inquiry
prompted Mrs. Chambers to say that Mr. Mackowiak had
destroyed a significant amount of documents within his control at
MSHA. Mrs. Chambers specifically recalled Mr. Mackowiak
walking out of the Mt. Hope facility carrying trash bags filled with
documents. Mrs. Chambers made it clear that Mr. Mackowiak’s
document destruction and actions from the file room and map
room were questionable, at best. She told me that a lot of the
documents we saved were gone.
Id. ¶ 17. Mr. Ross added that based on his knowledge of MSHA records and record keeping, and
his experience at MSHA supervising ventilation matters, “if what Mrs. Chambers said was true,
Mr. Mackowiak’s document removal and/or destruction was improper and highly suspicious.”
Id. ¶ 18.
Mr. Ellis’s declaration substantiated this account. He affirmed that on a “trip to Mt. Hope
with Mr. Ross in or around May 2010, Mr. Ross and I spoke with MSHA employee Doris
Chambers. . . . During this conversation, M[r]s. Chambers stated that Mr. Mackowiak had
thrown away a number of important government documents in a suspicious manner.” Ellis Decl.
¶¶ 7-8. Mr. Ellis explained that “[a]ccording to M[r]s. Chambers, the destruction of these
documents by Mr. Mackowiak was contrary to MSHA’s document retention policy. M[r]s.

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Chambers said that there were documents pertaining to the Upper Big Branch mine included
among the documents that were destroyed.” Id. ¶ 8.
DOL and MSHA opposed Performance’s request for discovery, and submitted
declarations from Mr. Mackowiak and Mrs. Chambers in support of their opposition. These
declarations contained carefully-worded denials of the allegations set forth by Mr. Ross and Mr.
Ellis.
Mr. Mackowiak’s declaration asserted that he had “never destroyed nor transported
documents from the District 4 office in trash bags for disposal related to the Performance Coal
UBB mine. Additionally, all files left by [Mr. Ross] upon his retirement in June 2008, remain in
the same file cabinets in the District 4 office where they were located upon his departure.”
Performance Coal Co., et al. v. U.S. Dep’t of Labor, et al., No. 10-cv-01698, ECF No. 54-2, ¶ 11
(D.D.C. Oct. 7, 2011).
Mrs. Chambers offered a similarly careful denial: “At no time did I ever tell Mr. Ross or
Mr. Ellis that Joseph C. Mackowiak removed, destroyed, or transported ‘trash bags filled with
documents’ and threw ‘away a number of important government documents in a suspicious
manner’ from the MSHA’s District 4 office,” “[a]t no time did I ever observe or have knowledge
that Mr. Mackowiak removed, destroyed, or transported ‘trash bags filled with documents’ and
threw ‘away a number of important government documents in a suspicious manner’ from the
MSHA’s District 4 office,” and “[t]o my knowledge, the files that were maintained and left by
Mr. Ross upon his departure from MSHA in 2008, still remain in the same file cabinets within
the District 4 offices.” Performance Coal Co., et al. v. U.S. Dep’t of Labor, et al., No. 10-cv01698, ECF No. 52-10, ¶¶ 9-11 (D.D.C. Oct. 5, 2011).

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The dispute over whether Mr. Mackowiak illegally destroyed documents related to UBB
and the 2010 explosion at the mine was never resolved. Instead, the District Court denied
Performance’s request for discovery on the ground that “[d]iscovery is generally inappropriate in
a FOIA case” and that “FOIA actions are typically resolved without discovery.” Performance
Coal Co., et al. v. U.S. Dep’t of Labor, et al., No. 10-cv-01698, ECF No. 57 at 18 n.4 (D.D.C.
Mar. 8, 2012) (citations omitted). In denying Performance’s request for discovery, the District
Court made no mention of either Mr. Ross and Mr. Ellis’s allegations or Mr. Mackowiak and
Mrs. Chambers’s denials.
ARGUMENT
The defense has repeatedly asked the Court to compel the government to comply with its
constitutional and statutory obligations to produce all Brady and Rule 16 material and to compel
MSHA to comply with the document subpoena issued by this Court on September 9, 2015. See,
e.g., ECF Nos. 245, 283, and 377. The government and MSHA have consistently resisted these
requests. This Court has ordered the government to follow the law and produce Brady material.
See ECF No. 279.
MSHA documents are, of course, central to this case.

MSHA not only issued the

citations referenced in the indictment that form the basis of the government’s theories, but also
MSHA was present in the UBB mine on a nearly-continuous basis during the indictment period.
MSHA inspectors were therefore actual eyewitnesses to the operation of the mine, the conditions
of the mine, and conduct in the mine during the indictment period.
Despite the nearly constant presence of MSHA at the mine, MSHA has produced few
documents, especially emails, in response to the subpoena. The government likewise has
produced few emails of MSHA employees despite the fact that MSHA inspectors and

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supervisors used email in the course of their work.

The evidence of Mr. Mackowiak’s

destruction of documents raises serious concerns that other documents, including emails, may
have been destroyed, deleted, or suppressed. No court has ever resolved whether Mr. Ross and
Mr. Ellis’s accounts were credible or whether the agency did in fact illegally destroy documents
related to UBB.

Moreover, the agency’s peculiar denials – its employees claim that the

documents were not removed or destroyed “in trash bags,” but they do not deny that documents
were in fact removed or destroyed – do little to allay the concern that Mr. Blankenship may have
been deprived of material to which he had a constitutional and statutory right and which may
have supported his defense.
In further support of this motion, the defense incorporates by reference the facts and
arguments set forth in the Motion to Compel Compliance with MSHA Subpoena Duces Tecum,
ECF 377.
CONCLUSION
For the foregoing reasons, the defense respectfully requests an order directing MSHA to
comply with the subpoena issued by this Court on September 9, 2015, and an order to the
government to produce all Brady, Rule 16, and Jencks Act material, and an evidentiary hearing
regarding MSHA’s and the government’s compliance with their discovery obligations.

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Dated: November 6, 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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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 6th 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
845 Fifth Avenue, Room 209
Huntington, WV 25701

/s/ Blair G. Brown
Blair G. Brown