Case 5:14-cr-00244 Document 487 Filed 11/09/15 Page 1 of 7 PageID #: 8800

IN THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF WEST VIRGINIA
BECKLEY

UNITED STATES OF AMERICA

v.

CRIMINAL NO. 5:14-00244

DONALD L. BLANKENSHIP

UNITED STATES’ RESPONSE TO DEFENSE MOTION TO STRIKE
GOVERNMENT’S EXHIBIT 83, TO EXCLUDE ANY SIMILAR EVIDENCE,
AND FOR A CURATIVE INSTRUCTION
Government’s Exhibit 83 and other evidence regarding citation data at Massey or other
coal companies have been properly admitted into evidence and repeatedly held relevant and
admissible. Defendant’s motion should be denied.
Exhibit 83 is an email that Massey’s safety director, Elizabeth Chamberlin, sent to
Defendant’s assistant Sandra Davis, with the subject “For the Chairman.” The attachment to the
email includes violation data for fourteen coal companies for the years 2007, 2008, and 2009.
The attachment shows Massey at the top of the list with the most violations. This exhibit and
other similar evidence of mine comparisons are relevant to each count of the superseding
indictment, relevant based on arguments made in Defendant’s opening statement and evidence
adduced in his cross examinations, and do not create a “fatal variance.” This evidence is not
unfairly prejudicial, and does not give rise to a Rule 16 violation.
First, Defendant raised the issue of comparing UBB to other mines owned by other
mining companies during his opening statement, when defense counsel asserted that other
longwall mines (including Buchanan, Speed, and Harris) had more violations than UBB:

 Case 5:14-cr-00244 Document 487 Filed 11/09/15 Page 2 of 7 PageID #: 8801

And what the evidence will show about the number of citations is that during the
indictment period, 39 longwall mines in the United States, 18 had more violations
than UBB. In fact, the top 13 on the list received more than a thousand violations
during the same period. Some of these mines were bigger than UBB and some
were smaller. But during the indictment period, there were seven longwall mines
in Central App, and four of those received more violations than UBB did during
the same period of time. Buchanan, 1,837; Speed, 1,340; Harris, 1,093. Harris is
an important comparison. Harris is right next to UBB. It’s on the same coal seam.
It’s on the same set of reserves. And you would think that it would be
symptomatic of the same sort of things. And it's inspected by the same MSHA
personnel. But during this same indictment period, Harris had more violations
than UBB, 1,093 versus 837. It mined less coal than UBB. And it had more total
man-hours than UBB did.
Tr. 83:21-84:14.
Second, this Court has made numerous findings on the record that this evidence is
relevant and has admitted multiple records into evidence over Defendant’s relevance objections.
See Government’s Exhibits 60, 61, 62, 63, and 64. Ruling specifically on these issues with
respect to Exhibit 83, the Court stated, “I find Government’s Exhibit 83 to be relevant to the
issues contained in the indictment.” Tr. 706:21-22.
The Court has also recognized that comparison evidence has been introduced by the
Defendant: “For purposes of the record, I think the record will bear this out with respect to Mr.
Childress’s testimony, there was evidence regarding comparisons on both direct and crossexamination.” Tr. 706:17-20.
On October 23, 2015, the Court admitted Government’s Exhibit 176, a memorandum
reflecting staffing reduction at several Massey mines, over Defendant’s objection that
information about mines other than UBB is irrelevant. The Court specifically found that the
evidence was relevant. Tr. 2509:10-15 (“I overrule the objection, finding the document to be
relevant given the allegations contained in the indictment.).

2

 Case 5:14-cr-00244 Document 487 Filed 11/09/15 Page 3 of 7 PageID #: 8802

On October 29, Mr. Delinsky argued for the defense against the use of Government’s
Exhibit 83 (which had already been admitted) during redirect examination of Christopher
Blanchard. Mr. Delinsky argued, “The use of total Massey violations as opposed to the UBB
violations is in effect a fatal variance from the charges in the indictment.” Tr. 3351:22-24. The
Court considered this argument, and rejected it, noting that “I think even Mr. Taylor would tell
you, Mr. Delinsky, that cross-examination wasn’t limited to UBB.” 3352:10-12.
Defendant’s motion to strike and exclude is an attempt to resurrect these failed objections
and present new grounds for these objections that were not timely raised in the first instance.
Moreover, on November 5, 2015, while this motion was pending, Mr. Taylor introduced
evidence during his cross examination of United States witness Bill Ross of the comparison of
UBB with the non-Massey mines Speed and Harris—precisely the type of evidence Defendant
seeks to strike and exclude in his motion. Tr. 4299:9-4301:2.
In at least one of its many rulings on the relevance of this evidence, the Court has already
rejected Defendant’s variance argument. Suffice it to say, the comparison of UBB to other mines
in terms of safety and compliance records is included in the allegations of the superseding
indictment. ECF 169 at ¶ 8. This type of evidence that has been admitted at trial in no way
changes the elements of the offenses charged. See United States v. Schnabel, 939 F.2d 197, 203
(4th Cir. 1991). Defendant does not, and cannot, argue that this is the case.
Third, with respect to “unfair surprise,” Defendant asserts that the indictment provided no
notice of the theory that the number of citations and orders could be relevant to the charged
offenses. This is untrue. Paragraph 8 of the superseding indictment specifically states that “UBB
ranked among the worst mines in the United States in . . . shutdown orders.” Paragraph 79 of the
superseding indictment discusses Defendant’s compensation in 2009 in relation to the number of

3

 Case 5:14-cr-00244 Document 487 Filed 11/09/15 Page 4 of 7 PageID #: 8803

total violations issued that year at all of Massey’s mines. The indictment clearly notifies
Defendant that comparison information from other Massey mines and other mine companies will
be featured in the United States’ proof. To the extent the indictment does not provide the exact
numbers of citations at other mines, or a detailed explanation of how and when this information
will be used at trial, as the United States has explained in one of its responses to a defense
motion to dismiss (a motion that the Court denied),
[An indictment] does not need to specify the theories upon which the United
States will rely to prove the facts that the indictment alleges. United States v.
Musacchio, 968 F.2d 782, 787 (9th Cir. 1991) (United States “not required to
allege its theory of the case”); United States v. Cochrane, 985 F.2d 1027, 1031
(9th Cir. 1993) (indictment “need not specify the theories or evidence upon which
the government will rely to prove [essential] facts”). Nor must the indictment
specify the factual proof that will be relied upon to support the charges. See, e.g.,
United States v. Innamorati, 996 F.2d 456, 477 (1st Cir. 1993) (“[The defendant]
misapprehends the law. The government need not recite all of its evidence in the
indictment, nor is it limited at trial to the overt acts listed in the indictment [which
charged conspiracy].”); United States v. Carr, 582 F.2d 242, 244 (2d Cir. 1978)
(“The Government is not required to set forth evidentiary matter [in the
indictment].”); United States v. Hoover, 467 F.3d 496, 500 (5th Cir. 2006)
(“Although the indictment must allege the essential elements of the charge
offense, it is not necessary for an indictment to go further and to allege in detail
the factual proof that will be relied upon to support the charges.” (internal
quotation marks and brackets omitted)); Braatelien v. United States, 147 F.2d
888, 892 (8th Cir. 1945) (“The evidence to support the charge [of conspiracy]
need not be set out.”).
ECF 129 at 2-3.
Defendant is not unfairly prejudiced, nor is there a Fifth Amendment violation, because
the indictment does not explain the relevance of UBB’s safety compliance record compared to
that of other mines. Such comparisons are pieces of evidence—which Defendant has himself
relied upon in his opening statement and in cross examinations—that the jury may consider as
part of the overall evidence in this case.
4

 Case 5:14-cr-00244 Document 487 Filed 11/09/15 Page 5 of 7 PageID #: 8804

Finally, Defendant objects to comparison data of other mines as a Rule 16 violation, and
on the basis that he has not had equal access to the underlying data. This part of the motion refers
to United States’ exhibits that were introduced through Tyler Childress, and contain information
generated by a public MSHA database about citation records at other mines. Defendant
complains that because he does not have access to the private MSHA database that Mr. Childress
used to create charts—a database that is separate from the public database and used by
employees—he cannot prepare a defense. Defendant bases this argument on the sole complaint
that “the public portion of the MSHA website . . . does not allow the defense to retrieve data by
company, but rather only by individual mine,” while the non-public database contains data by
company.
It appears, however, that this issue was resolved during the defense’s cross-examination
of Mr. Childress, when it was revealed that the public database contains mine operator
information in addition to mine name:
Q. Mr. Childress, before we broke for lunch we were talking about the MSHA
database. Do you recall that?
A. Yes.
Q. And based on your knowledge of the MSHA database, does it indicate who the
operator of each coal mine is?
A. Yes.
Tr. 526:7-12. During cross, defense counsel elicited clarification from Mr. Childress that citation
information for any coal mine in the country is publicly available:
Q. And if anybody wanted to see the manhours at UBB or any other coal mine in
the country since 2008 on a quarterly basis, on an annual basis, they could find
that pretty
easily, right?
A. Yes.
Q. And the same question with respect to citations and violations. That
information is publicly available on the, on the MSHA database website and has
been since at least 2008, right?
5

 Case 5:14-cr-00244 Document 487 Filed 11/09/15 Page 6 of 7 PageID #: 8805

A. Yes.
Tr. 523:17-524:1; see also Tr. 528-523 (explaining that data underlying charts is publicly
available). There is no Rule 16 violation because this data is contained in a public database, even
if it must be searched for using different terms than those used by Mr. Childress.
Defendant also asserts that the United States’ failure to produce data underlying its
Exhibit 83 is a Rule 16 violation and constitutes “unequal access to data.” This exhibit is a
Massey document, promulgated by Massey insiders and provided to Defendant, the CEO of
Massey, during the indictment period. The United States did not compile the information in
Exhibit 83 from a source unavailable to Defendant. Nor is this document a surprise—this
Massey-generated document has been in Defendant’s possession for at least nearly a year.
Moreover, this exhibit was introduced for the purpose of notice and knowledge, and not for the
truth of the underlying data, so any underlying data pertinent to the comparisons in Exhibit 83 is
irrelevant to this particular exhibit.
For these reasons, the Court should deny Defendant’s motion.

Respectfully submitted,
R. BOOTH GOODWIN II
United States Attorney

/s/ Gabriele Wohl
GABRIELE WOHL, WV Bar No. 11132
Assistant United States Attorney
300 Virginia Street, East
Room 4000
Charleston, WV 25301
Telephone: 304-345-2200
Fax: 304-347-5104
Email: gabriele.wohl@usdoj.gov

6

 Case 5:14-cr-00244 Document 487 Filed 11/09/15 Page 7 of 7 PageID #: 8806

CERTIFICATE OF SERVICE
It is hereby certified that the foregoing “UNITED STATES’ RESPONSE TO
DEFENSE MOTION TO STRIKE GOVERNMENT’S EXHIBIT 83, TO EXCLUDE ANY
SIMILAR EVIDENCE, AND FOR A CURATIVE INSTRUCTION” has been electronically
filed and service has been made on opposing counsel by virtue of such electronic filing this 9th
day of November, 2015 to:
Steven Herman, Esq.
Miles Clark, Esq.
Eric Delinsky, Esq.
William Taylor, III, Esq.
Blair Brown, Esq.
Zuckerman Spaeder LLP
Suite 1000
1800 M Street, NW
Washington, DC 20036
Alex Macia, Esq.
Spilman Thomas & Battle PLLC
P.O. Box 273
Charleston, WV 25321
James Walls, Esq.
Spilman Thomas & Battle PLLC
P.O. Box 615
Morgantown, WV 26507

/s/ Gabriele Wohl
GABRIELE WOHL, WV Bar No. 11132
Assistant United States Attorney
300 Virginia Street, East
Room 4000
Charleston, WV 25301
Telephone: 304-345-2200
Fax: 304-347-5104
Email: gabriele.wohl@usdoj.gov

7