Case 5:14-cr-00244 Document 486 Filed 11/09/15 Page 1 of 4 PageID #: 8748 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 ) ___________________________________ ) PROFFER Donald L. Blankenship, through undersigned counsel, respectfully makes the following proffer of testimony, which he sought to elicit from William L. Ross, and which he would propose to elicit by calling Mr. Ross and certain other witnesses in the defense case. We make this proffer because the Court sustained the government’s objection to testimony that Mr. Ross would have given during cross examination concerning inundations of natural gas at the Upper Big Branch Mine (“UBB”) in 2003 and 2004, when Mr. Ross was a ventilation specialist at Coal Mine Safety and Health District 4 (“District 4”) of the Mine Safety and Health Administration (“MSHA”). Mr. Ross would have explained the nature of the examination and reports that MSHA, at his request, did at the time. See Defense Exhibit 477 (July 15, 2004 MSHA Technical Support-Ventilation Division Memorandum Re: Methane Floor Outbursts at Performance Coal Company’s Upper Big Branch Mine-South; Mar. 4, 2004 MSHA Technical Support-Roof Control Division Memorandum Re: Evaluation of Controls on Floor Bursts at Performance Coal Company, Upper Big Branch-South), attached hereto as Exhibit A. Mr. Ross would have testified that he believed the inundations to be highly relevant to the justification of use of belt air to provide increased ventilation to UBB’s longwall section, as we urged the Court in requesting re-cross examination of Mr. Ross, and that he specifically brought those concerns and the reports to the attention of District 4 Ventilation Supervisor Joseph Case 5:14-cr-00244 Document 486 Filed 11/09/15 Page 2 of 4 PageID #: 8749 Mackowiak and District Manager Robert Hardman during a meeting at MSHA’s Mt. Hope, West Virginia offices in the Fall of 2009. This is all directly relevant to the government’s suggestion that company officials never provided justification for the use of belt air as requested. Based upon the recent discovery of his declaration in Freedom of Information Act litigation before the U.S. District Court for the District of Columbia, we would further elicit testimony from Mr. Ross that he looked for one of the reports when he returned to MSHA’s Mt. Hope offices in the summer of 2010. See Defense Exhibit 568 (June 8, 2011 Declaration of William Lowell “Bill” Ross, Performance Coal Co. v. U.S. Dep’t of Labor, No. 1:10-cv-01698 (D.D.C.)), attached hereto as Exhibit B. Mr. Ross was unable to find the document where he believed it should have been. His former secretary at MSHA, Doris Chambers, advised Mr. Ross that Mr. Mackowiak had destroyed a quantity of documents, including documents relating to UBB. Further, we expect that Mr. Mackowiak and Mr. Hardman will both testify that Mr. Ross did not raise with them the issue of the inundations in 2003 and 2004 and that they never saw or heard of the reports until late May of 2010, when they were mysteriously slipped under Mr. Hardman’s door. See Exhibit C (excerpt of May 27, 2010 Statement Under Oath of Robert Hardman in the UBB Accident Investigation indicating that he was made aware of the two reports on May 20, 2010, and that he did not see the reports until the following day, after they had been slipped under the door to his office); Exhibit D (excerpt of June 7, 2010 Statement Under Oath of Joseph Mackowiak in the UBB Accident Investigation indicating that he did not become aware of one report until May 21, 2010 at 11:16 a.m., that he first saw the second report the following day, and that he did not recall any conversations with Mr. Ross regarding outbursts at UBB or at any other mines in District 4). 2 Case 5:14-cr-00244 Document 486 Filed 11/09/15 Page 3 of 4 PageID #: 8750 This testimony is relevant both to Mr. Ross’s credibility and the issue of spoliation or document destruction now before the Court. Dated: November 9, 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 3 Case 5:14-cr-00244 Document 486 Filed 11/09/15 Page 4 of 4 PageID #: 8751 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 9th 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/ William W. Taylor, III William W. Taylor, III