IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA AT CHARLESTON TRANSCRIPT OF PROCEEDINGS -----------------------------x : UNITED STATES OF AMERICA, : : vs. : : DONALD L. BLANKENSHIP, : : Defendant. : : -----------------------------x CRIMINAL ACTION NO. 5:14-CR-00244 November 17, 2015 TRIAL VOLUME XXVIII BEFORE THE HONORABLE IRENE C. BERGER UNITED STATES DISTRICT JUDGE APPEARANCES: For the United States: MR. R. BOOTH GOODWIN, II MR. STEVEN R. RUBY MS. GABRIELE WOHL U.S. Attorney's Office P.O. Box 1713 Charleston, WV 25326-1713 MR. R. GREGORY MCVEY U.S. Attorney's Office P.O. Box 1239 Huntington, WV 25714-1239 APPEARANCES (Continued): For the Defendant: MR. WILLIAM W. TAYLOR, III MR. BLAIR GERARD BROWN MR. ERIC R. DELINSKY Zuckerman Spaeder Suite 1000 1800 M Street, NW Washington, DC 20036-5807 MR. JAMES A. WALLS Spilman Thomas & Battle P.O. Box 273 Charleston, WV 25321-0273 Court Reporters: Lisa A. Cook, RPR-RMR-CRR-FCRR (304)347-3198 lisa_cook@wvsd.uscourts.gov Mary A. Schweinhagen, RMR-CRR (304)347-3188 mary_schweinhagen@wvsd.uscourts.gov Proceedings recorded by mechanical stenography; transcript produced by computer. I N D E X PAGE CHARGE TO JURY . . . . . . . . . . . . . . . 5776 - 5820 CLOSING ARGUMENT BY MR. GOODWIN . . . . . . 5821 - 5862 CLOSING ARGUMENT BY MR. TAYLOR . . . . . . . 5869 - 5934 REBUTTAL ARGUMENT BY MR. RUBY . . . . . . . 5935 - 5963 CLOSING CHARGE TO JURY . . . . . . . . . . . 5963 - 5968 5776 1 P R O C E E D I N G S 2 (Jury returned into the courtroom at 9:01 a.m.) 3 (Trial resumed at 9:02 a.m.) 4 5 6 THE COURT: Counsel, I have copies of the charge for you and I will read it before your closings. 7 MR. TAYLOR: 8 THE COURT: 9 10 Good morning, everyone. Yes, Your Honor. Again, good morning to you ladies and gentlemen. At the outset I want to thank you for your undivided 11 attention throughout the trial, your care and consideration 12 of the testimony and exhibits, your patience and 13 understanding when delays were necessary, and your 14 promptness in attending court. 15 You've now heard and seen all of the evidence which you 16 may properly consider in determining the facts of the case 17 and the guilt or innocence of the defendant as determined by 18 those facts and the law. 19 any other person has been proven guilty. 20 should be based solely upon the evidence or lack of evidence 21 as to the defendant, Donald Blankenship, in accordance with 22 my instructions and without regard to whether the guilt of 23 other people has or has not been proven. 24 25 You are not being asked whether Your verdict At this stage in the trial, I am required to state and explain to the jury the law which applies to the case. This 5777 1 statement as to the law of the case is known as a charge and 2 is presented in the form of instructions. 3 Each instruction is as important as any other. You 4 should draw no inference from the order, language, or manner 5 in which these instructions are read. 6 one statement or instruction and ignore other instructions 7 or parts of instructions. 8 instructions together as a whole. 9 Do not pick out any Consider and apply the The functions of the judge, the jury, and the attorneys 10 in a case are quite different. 11 to determine and state the law of the case, preside over the 12 trial, and conform each portion to the law. 13 It is the duty of the judge It is the duty of the jury to impartially determine the 14 facts of the case from all of the evidence. Your oath as a 15 juror requires you to accept and apply the law as stated in 16 these instructions to the facts determined by you from all 17 the evidence. 18 idea of what you think the law should be. You must not change the law or apply your own 19 It is the duty of the attorneys to present their 20 client's case, the law to the judge, and the facts to the 21 jury and, in argument, to relate the law to the facts and, 22 thus, assist the jury in determining the guilt or innocence 23 of the defendant. 24 25 Generally speaking, the indictment charges that between January 1st, 2008, and April 5th, 2010, the defendant, 5778 1 Donald L. Blankenship, conspired to willfully violate 2 mandatory health and safety standards and willfully made 3 false statements. 4 the offenses were committed, quote, on or about, end of 5 quote, a certain day. 6 You will note the indictment charges that The proof need not establish with certainty the exact 7 date of the alleged offense. 8 evidence in the case establishes beyond a reasonable doubt 9 that the offense was committed on a date reasonably near the 10 11 It is sufficient if the date alleged. You will find oftentimes that an indictment is charged 12 in the conjunctive meaning that it uses the word "and" 13 between two elements of the offense. 14 However, the law may not require proof of both 15 elements. 16 instructions as to the actual elements of each offense that 17 must be proven. 18 Therefore, you should be guided by this Court's You will also note the indictment charges that the 19 offenses were committed at or near a certain location. 20 proof need not establish with certainty the exact location 21 of the alleged offenses. 22 in the case establishes beyond a reasonable doubt that the 23 offenses were committed at a location reasonably near the 24 location alleged. 25 The It is sufficient if the evidence You are to determine the facts of the case from the 5779 1 evidence alone. 2 testimony of all of the witnesses, all exhibits received in 3 evidence, and all matters of which I took judicial notice. 4 The evidence always consists of the sworn When the Court declares that it has taken judicial 5 notice of some fact or event, you may accept the Court's 6 declaration as evidence and regard it as conclusively 7 proven, the fact or event which has been judicially noticed, 8 and weigh it along with other evidence in the case. 9 However, you are not required to accept such facts 10 because, again, you as jurors are the sole judges of the 11 facts. 12 testimony of every witness and all exhibits and not 13 disregard or overlook any testimony, witness, exhibit, or 14 evidence. You must carefully and impartially consider the 15 You must not permit yourself to be influenced by 16 sympathy, bias, passion, prejudice, or public sentiment for 17 or against the defendant or the Government. 18 Under your oath as jurors you are not to be swayed by 19 sympathy. 20 this case. 21 yourselves as you sift through the evidence as to each count 22 of the indictment is: 23 of the defendant beyond a reasonable doubt? 24 25 You are to be guided solely by the evidence in And the crucial question that you must ask Has the Government proven the guilt It is for you alone to decide whether the Government has proven that the defendant is guilty of the crimes 5780 1 charged solely on the basis of the evidence and subject to 2 the law as I charge you. 3 you let fear or prejudice or bias or sympathy interfere with 4 your thinking, there is a risk that you will not arrive at a 5 true and just verdict. 6 It must be clear to you that if If you have a reasonable doubt as to the defendant's 7 guilt, you must not hesitate because of sympathy or any 8 other reason to find the defendant not guilty. 9 other hand, if you should find that the Government has met But, on the 10 its burden of proving the defendant's guilt beyond a 11 reasonable doubt, you should not hesitate because of 12 sympathy or any other reason to render a verdict of guilty. 13 During trial you heard evidence of an explosion that 14 occurred at the Upper Big Branch mine on April 5th, 2010. 15 The Government, however, has not charged the defendant with 16 causing that explosion and the defendant is not on trial for 17 the explosion. 18 responsibility for the explosion is at issue in this case. 19 In fact, neither the cause of nor the Accordingly, in considering the charges against the 20 defendant, you cannot be influenced by the explosion or by 21 sympathy for the decedent or their families. 22 not consider or reveal your personal feelings or ideas about 23 what caused the explosion or whether any individual 24 Government agency or company bears responsibility for that 25 event. You also may 5781 1 It would violate your duty as jurors and my 2 instructions to you if you were to discuss or consider in 3 your deliberations the cause of the explosion or to use your 4 verdict in this case to address responsibility or blame for 5 the explosion. 6 Your duty is to consider only the matters at issue in 7 this case and to decide only the charges that have been 8 brought in this case. 9 You have also heard evidence that the defendant held 10 the position of chairman and chief executive officer of 11 Massey Energy Company. 12 executive of the company alone is not evidence of guilt. 13 You may not find the defendant guilty of any offense charged 14 in the indictment simply because he held such a position. 15 In other words, an executive of a corporation is not His position as chairman and chief 16 criminally responsible for the illegal acts of another 17 individual in the company merely because of his position. 18 In order to convict the defendant of any of the 19 offenses charged in the superseding indictment, the 20 Government must prove to you beyond a reasonable doubt all 21 of the elements of the particular offense or offenses. 22 the Government has failed to prove any element of the 23 offense, then you must acquit the defendant of that offense 24 or those offenses regardless of his position at the company. 25 If Both the defendant and the Government expect that you 5782 1 will carefully and impartially consider all of the evidence 2 in this case, follow the law as stated by the Court, and 3 reach a just verdict regardless of the consequences. 4 Generally speaking, there are two kinds of evidence 5 from which you may find the truth as to the facts of the 6 case: 7 Direct evidence and circumstantial evidence. Direct evidence of a fact to be proven is usually the 8 testimony of the witness who saw, heard, or otherwise 9 experienced the fact. 10 11 In other words, it is the testimony of a witness who claims actual knowledge of the facts. Circumstantial evidence is where one fact or a chain of 12 facts gives rise to a reasonable inference of another fact. 13 If one fact or group of facts on the basis of common sense 14 and common experience leads you to logically and reasonably 15 infer other facts, then this is circumstantial evidence. 16 Circumstantial evidence is no less valid and no less 17 weighty than direct evidence provided that the inferences 18 drawn are logical and reasonable. 19 In a criminal case where a defendant's state of mind is 20 at issue, where there are questions of what the defendant 21 intended or what his purpose was, circumstantial evidence is 22 often an important means of proving what the state of mind 23 was at the time of the events in question. 24 the only means of proving state of mind. 25 Sometimes it is The law makes no distinction between the weight to be 5783 1 given to either direct evidence or circumstantial evidence, 2 nor is a greater degree of certainty required of 3 circumstantial evidence than of direct evidence. 4 Do not be concerned about whether evidence is direct 5 evidence or circumstantial evidence. 6 and weigh all of the evidence that was presented to you. You should consider 7 You are to consider only the evidence presented and you 8 may not guess or speculate as to the existence of any facts. 9 But in your consideration of the evidence, you are not 10 limited to the bald statements of the witnesses. 11 words, you are not limited solely to what you see and hear 12 as the witnesses testify. 13 In other You are permitted to draw from facts which you find 14 have been proven such reasonable inferences as you feel are 15 justified in the light of your own experience, reason, and 16 common sense. 17 The indictment in this case is only an accusation or 18 charge against the defendant, Donald L. Blankenship, and is 19 not any evidence of guilt whatsoever. 20 trial only for the acts or conduct alleged in the 21 indictment. 22 the indictment and not on anything else. 23 The defendant is on Your focus must be on the charges contained in Nothing said or done by the attorneys who have tried 24 this case is to be considered by you as evidence of any 25 fact. The questions of counsel, the opening statements, and 5784 1 the final arguments of counsel are intended to help you in 2 understanding the evidence and applying the law to the 3 evidence, but they are not themselves evidence. 4 Accordingly, if any question, argument, statement or 5 remark of counsel is not based upon the evidence or the law 6 as stated in these instructions, then you should disregard 7 that question, argument, statement, or remark. 8 9 Any proposed testimony or proposed exhibit to which an objection was sustained by the Court and any testimony or 10 exhibit ordered stricken by the Court must be entirely 11 disregarded. 12 any question to which an objection was sustained. 13 You should not speculate as to the answer to Nothing that I have said or done at any time during the 14 trial is to be considered by you as evidence of any fact or 15 as indicating any opinion concerning any fact, the 16 credibility of any witness, the weight of any evidence, or 17 the guilt or innocence of the defendant. 18 instructions, nor by any ruling or remark which I have made 19 or will make, have I meant or do I mean to indicate any 20 opinion as to the facts of this case. 21 you, the jury, to decide. Neither by these The facts are for 22 Anything you may have seen or heard outside the 23 courtroom, including media coverage, is not evidence and 24 must be entirely disregarded. 25 The exhibits which have been introduced and admitted 5785 1 into evidence are a part of the case and you are to consider 2 them in the same manner as other evidence in the case. 3 However, exhibits offered as evidence and not admitted by 4 the Court are not to be considered by you at all. 5 And in this connection, the Court instructs you that 6 certain exhibits referred to as schedules or summaries have 7 been admitted into evidence. 8 exhibits are not actual evidence but are admitted as 9 summaries of other evidence in the case and are admitted Strictly speaking, these 10 only for your assistance and convenience in considering the 11 other evidence which they purport to summarize. 12 In other words, the charts or summaries are used only 13 as a matter of convenience. 14 independent value and you should consider them only insofar 15 as they have concluded that they accurately reflect the 16 documents and testimony actually introduced into evidence. 17 If you find that the summaries do not accurately reflect the 18 evidence in the case, you are to disregard them entirely. 19 These summaries have no Tape recordings of conversations have been received in 20 evidence and have been played for you. Type-written 21 transcripts of these tape recorded conversations may have 22 been furnished to you. 23 the conversations are being given to you solely for your 24 convenience in assisting you in following the conversation 25 or in identifying the speakers. These type-written transcripts of 5786 1 The tapes themselves are evidence in the case and the 2 type-written transcripts are not evidence. 3 on the tapes is evidence. 4 is not. 5 will be guided solely by the tapes and not by the 6 transcripts. What you heard What you read in the transcript If you perceive any variation between the two, you 7 If you cannot, for example, determine from the tape 8 recording that particular words were spoken or if you cannot 9 determine from the tape recording who said a particular word 10 or words, you must disregard the transcript insofar as those 11 words or that speaker are concerned. 12 During your deliberations you should carefully consider 13 the testimony of each and every witness and not disregard or 14 overlook any testimony, witness, or evidence. 15 saying that you must consider all of the evidence, I do not 16 mean that you must accept all of the evidence as true or 17 accurate. 18 Now, in You as jurors are the sole judges of the credibility of 19 the witnesses and the weight of the evidence. The 20 credibility of the witness means the truthfulness of the 21 witness, and the weight of the evidence means the extent to 22 which you are or are not convinced by the evidence. 23 Inconsistencies or discrepancies in the testimony of a 24 witness or between the testimony of different witnesses may 25 or may not cause the jury to discredit such testimony. 5787 1 Two or more persons witnessing an incident may see or 2 hear it differently. 3 failure of recollection, is not an uncommon experience. 4 And innocent misrecollection, like In weighing the effect of a discrepancy, always 5 consider whether it pertains to a matter of importance or an 6 unimportant detail, and whether the discrepancy results from 7 innocent error or intentional falsehood. 8 The number of witnesses testifying on one side or the 9 other of an issue is not alone the test of the credibility 10 of the witnesses and the weight of the evidence. 11 warranted by the evidence, you may believe one witness 12 against a number of witnesses testifying differently. If 13 However, you are instructed that the defendant has no 14 burden of calling any witnesses or producing any evidence. 15 The tests are: How truthful is the witness and how 16 convincing is his or her evidence, and which witnesses and 17 which evidence appeals to your minds as being most accurate 18 and otherwise trustworthy in light of all of the evidence 19 and circumstances shown. 20 In determining the credit and weight you will give to 21 the testimony of any witness who has testified, you may 22 consider, among other things, if found by you from the 23 evidence: 24 His or her good memory or lack of memory; 25 The interest or lack of interest of the witness in the 5788 1 2 3 outcome of the trial; The relationship of any witness to any of the parties or other witnesses; 4 His or her demeanor and manner of testifying; 5 His or her opportunity and means or lack of opportunity 6 and means of having knowledge concerning the matters which 7 he or she testified; 8 9 The reasonableness or unreasonableness of his or her testimony; 10 His or her apparent fairness or lack of fairness; 11 The intelligence or lack of intelligence of the 12 13 witness; The bias, prejudice, hostility, friendliness, or 14 unfriendliness of the witness for or against any of the 15 parties; 16 Contradictory statements of any witness, if you believe 17 from the evidence that such were made by the witness either 18 during trial or before trial, and that the same are 19 contradictory of his or her testimony; however, 20 contradictory statements, if any, may not be considered by 21 the jury to establish the truth of such statement; 22 Contradictory acts of any witness, if you believe that 23 such were committed by the witness, and that they were 24 contradictory of his or her testimony. 25 From these considerations and all other circumstances 5789 1 appearing from the evidence, you may give the testimony of 2 the witness such credit and weight as you believe it 3 deserves. 4 In other words, what you must try to do in deciding 5 credibility is to size up a person just as you would in any 6 important matter when you are trying to decide if a person 7 is truthful, straightforward, and accurate in his or her 8 recollection. 9 Further, the Court instructs you that you are not 10 required to accept testimony even though the testimony is 11 uncontradicted and the witness is not impeached. 12 You may decide because of the witness's bearing and 13 demeanor or because of the inherent improbability of his or 14 her testimony or for other reasons sufficient to you that 15 such testimony is not worthy of belief. 16 During this trial you have heard the testimony of 17 federal agents. 18 considered in the same way and judged as to credibility and 19 weight as the testimony of any other witness. 20 The testimony of such a witness should be You have heard the testimony of one or more witnesses 21 who testified under an agreement with the United States that 22 gives him what is called use immunity. 23 that the testimony of the witness may not be used against 24 him in any criminal case except a prosecution for perjury, 25 giving a false statement, or otherwise failing to comply What this means is 5790 1 2 with the use immunity agreement. You are instructed that the United States is entitled 3 to call as a witness a person who has entered into an 4 immunity agreement with the United States and that you may 5 convict a defendant on the basis of such a witness's 6 testimony alone if you find that the testimony proves the 7 defendant guilty beyond a reasonable doubt. 8 9 However, the testimony of a witness who has been granted immunity should be examined by you with greater care 10 than the testimony of an ordinary witness. 11 scrutinize it closely to determine whether or not it is 12 colored in such a way as to place guilt upon the defendant 13 in order to further the witness's own interests; for such a 14 witness, confronted with the realization that he can win his 15 own freedom by helping to convict another, has a motive to 16 falsify his testimony. 17 as jurors shall determine the credit and weight to give to 18 such testimony. You should As with all witness testimony, you 19 If you believe that any witness in this case has 20 knowingly testified falsely as to any material or important 21 fact, you may, after considering and weighing the testimony 22 of such witness, disregard all of the testimony of such 23 witness or give it or any part thereof such credit and 24 weight as you believe it deserves. 25 The defendant, Donald L. Blankenship, has exercised his 5791 1 right to remain silent. 2 States gives a defendant an absolute and inalienable right 3 to remain silent. 4 held against the defendant or in any way affect the outcome 5 of his trial. 6 constitutional right not to testify cannot be used by you 7 during your deliberations in any way whatsoever. 8 9 The Constitution of the United And the exercise of this right cannot be The fact that the defendant exercised his You cannot conclude that his decision is even remotely indicative of guilt, and you must not speculate what his 10 testimony might have been or why he chose not to be a 11 witness or give evidence. 12 Ordinarily witnesses are not permitted to testify as to 13 opinions or conclusions. 14 provide that if scientific, technical, or other specialized 15 knowledge might assist the jury in understanding the 16 evidence, or in determining a fact issue, a witness 17 qualified as an expert by knowledge, skill, experience, 18 training, or education may testify and state his opinion 19 concerning such matters and may state the reasons for the 20 opinion. 21 However, the rules of evidence You should consider each expert opinion received in 22 this case and the reasons given in support of the opinion 23 and give it such weight as you may think it deserves. 24 25 In determining the weight to be given to the opinion of an expert, you should consider the education, training, and 5792 1 experience of the expert; the basis of the opinion; the 2 confidence of the witness; the reasons and reasoning stated 3 by the witness; and the opinions of other similar witnesses, 4 if any, on the same matters, and the rules generally 5 applicable to other witnesses in the case. 6 If you should decide that the opinion of an expert 7 witness is not based upon sufficient education and/or 8 experience or if you should decide that the reasons given in 9 support of the opinion are not sound or that the opinion is 10 outweighed by other evidence, then you may disregard the 11 opinion entirely or give it such weight as you find it 12 deserves. 13 Expert witnesses were at times asked hypothetical 14 questions and they gave answers to such questions. A 15 hypothetical question has been defined as a form of question 16 in which facts that counsel claims or assumes to have been 17 proven are stated as a hypothesis, and the opinion of an 18 expert is asked thereon. 19 In answering a hypothetical question, an expert witness 20 must accept as true every fact stated therein, but this does 21 not mean that the jury must. 22 conditions, circumstances, or facts are not proven by the 23 evidence, the validity of the expert opinion may dissolve 24 and both the question and the answer may be disregarded 25 entirely or given such weight as you may deem it entitled to If the jury finds that assumed 5793 1 2 receive. The law presumes a defendant to be innocent of crime. 3 Thus, a defendant, although accused, begins the trial with a 4 clean slate; with no evidence against him. 5 permits nothing but legal evidence presented before the jury 6 to be considered in support of any charge against the 7 accused. And the law 8 So the presumption of innocence alone is sufficient to 9 acquit a defendant unless the jurors are satisfied beyond a 10 reasonable doubt of the defendant's guilt after careful and 11 impartial consideration of all the evidence in the case. 12 The jury will remember that a defendant is never to be 13 convicted on mere suspicion or conjecture. The burden is 14 always upon the Government to prove guilt beyond a 15 reasonable doubt. 16 This burden never shifts to a defendant for the law 17 never imposes upon a defendant in a criminal case the burden 18 or duty of calling any witnesses or producing any evidence. 19 You may not infer that defendant Donald L. Blankenship 20 is guilty of participating in criminal conduct merely from 21 the fact that he was present at the time a crime was being 22 committed and had knowledge that it was being committed or 23 because he associated with others who were guilty of 24 wrongdoing. 25 So if the jury, after careful and impartial 5794 1 consideration of all the evidence in the case, has a 2 reasonable doubt that the defendant is guilty of the charge, 3 it must acquit. 4 If the jury views the evidence in the case as 5 reasonably permitting either of two conclusions - one of 6 innocence, the other of guilt - the jury should, of course, 7 adopt the conclusion of innocence. 8 9 However, if you are satisfied beyond a reasonable doubt that all elements of the particular charge or charges have 10 been proven, then you must find the defendant guilty of that 11 particular charge or charges. 12 The superseding indictment contains a total of three 13 counts. Each count charges the defendant with a different 14 crime. You must consider each count separately and return a 15 separate verdict of guilty or not guilty for each count. 16 The defendant, Donald L. Blankenship, is charged in 17 Count One of the superseding indictment with unlawfully, 18 willfully, and knowingly conspiring with others between 19 January 1st, 2008, and April 9th, 2010, to willfully violate 20 mandatory federal mine safety and health standards at Upper 21 Big Branch in violation of Title 30, United States Code, 22 Section 820(d) and Title 18, United States Code, 23 Section 371; and to defraud the United States and an agency 24 thereof in violation of Title 18, United States Code, 25 Section 371. 5795 1 2 You may return one of two verdicts with respect to Count One of the indictment: Guilty or not guilty. 3 You will note that Count One of the superseding 4 indictment charges a multiple object conspiracy, meaning 5 that the defendant and others conspired to willfully violate 6 mandatory mine safety and health standards in violation of 7 30, U.S.C., Section 820(d), and defraud the United States by 8 impeding the lawful functions of one of its agencies in 9 violation of 18, U.S.C., Section 371. 10 It is not necessary for the United States to prove 11 beyond a reasonable doubt that the conspiracy furthered both 12 objects. 13 means of violating the statute and you need only find beyond 14 a reasonable doubt that the defendant knowingly committed 15 one of these acts; for example, conspired to willfully 16 violate mandatory mine safety and health standards in 17 violation of 30, U.S.C., Section 820(d), or conspired to 18 defraud the United States by impeding the lawful functions 19 of one of its agencies in violation of 18, U.S.C., Section 20 371. 21 Rather, the United States has charged different The Court instructs you that you must be unanimous in 22 the act or acts which you find have been proven beyond a 23 reasonable doubt. 24 A criminal conspiracy is an agreement or a mutual 25 understanding knowingly made or knowingly entered into by at 5796 1 least two people to violate the law by some joint or common 2 plan or course of action. 3 4 5 Ladies and gentlemen, I did not tell you, but you will be able to take this charge with you to the jury room. The United States must prove beyond a reasonable doubt 6 that the defendant knowingly arrived at an agreement or 7 understanding that he and others would willfully violate 8 mandatory federal mine safety and health standards or 9 defraud the United States by means of some common plan or 10 course of action as alleged in the superseding indictment. 11 It is proof of this conscious understanding or 12 agreement by the alleged members that should be central to 13 your consideration of the charge of conspiracy. 14 In order to satisfy its burden of proof for the 15 conspiracy charged in Count One of the superseding 16 indictment, the United States must establish each of the 17 following elements beyond a reasonable doubt: 18 That two or more persons in some way or manner 19 positively or tacitly came to a mutual understanding to 20 willfully violate mandatory federal mine safety and health 21 standards at Upper Big Branch or to defraud the United 22 States and the Department of Labor; 23 24 25 That the defendant knowingly and willfully became a member of the conspiracy; That one of the conspirators, not necessarily the 5797 1 defendant, during the existence of the conspiracy knowingly 2 committed at least one of the means or methods or overt acts 3 described in the superseding indictment; 4 And that such overt act was knowingly committed during 5 the life of the conspiracy in order to further the 6 conspiracy. 7 The Court instructs you that an act committed after the 8 central objectives of the conspiracy have been attained for 9 the purpose only of covering up the conspiracy does not 10 11 constitute an overt act in furtherance of the conspiracy. With respect to the second element, the Government is 12 required to prove beyond a reasonable doubt that the 13 defendant knowingly and willfully joined and participated in 14 the conspiracy. 15 A defendant enters into a conspiracy knowingly and 16 willfully if he joins and participates in the conspiracy 17 with knowledge of and the intent to further its unlawful 18 object. 19 The Government must prove two types of intent beyond a 20 reasonable doubt before a defendant can be said to have 21 willfully joined a conspiracy: 22 intent that the underlying crime be committed. An intent to agree and an 23 Thus, in addition to proving that a defendant had 24 knowledge of the conspiracy and the intent to join it, the 25 Government also must prove that a defendant had the intent 5798 1 necessary to commit one or more of the crimes that are 2 alleged to be the objects of the conspiracy. 3 Mere association by a defendant with a conspirator does 4 not itself make the defendant a member of a conspiracy even 5 if he knows of the conspiracy. 6 not enough. 7 participate in the conspiracy with the purpose of helping to 8 commit one or more of the crimes that are alleged to be the 9 objects of the conspiracy. 10 In other words, knowledge is The defendant himself must intentionally Thus, in order to find the defendant guilty of Count 11 One, the Government must prove beyond a reasonable doubt 12 that two or more persons agreed to willfully violate 13 mandatory mine safety standards at UBB during the indictment 14 period; that the defendant intentionally joined the 15 agreement knowing that one of its objects was to willfully 16 violate mine safety standards at UBB; that the defendant 17 intended that willful violations of mine safety standards be 18 committed at UBB; and that at least one overt act in 19 furtherance of the conspiracy was knowingly and willfully 20 committed by at least one member of the conspiracy during 21 the life of the conspiracy. 22 The Court instructs you that it is a criminal offense 23 for any operator of a mine to willfully violate a mandatory 24 health or safety standard. 25 instructions that you take to your jury deliberation room an You will find attached to the 5799 1 exhibit relative to Count One which contains mandatory 2 health and safety requirements. 3 exhibit during your deliberations relative to Count One of 4 the superseding indictment. 5 You must review this The federal laws on coal mine safety and health apply 6 to any coal mine whose products enter interstate commerce or 7 whose operations or products enter interstate commerce or 8 whose operations or products affect commerce. 9 This element is satisfied for purposes of this case if 10 you find that the coal produced at the Upper Big Branch mine 11 was sold or that mining supplies or equipment was purchased 12 for use in the mine. 13 It is also a crime to conspire to defraud the United 14 States. 15 in pertinent part if two or more persons conspire to defraud 16 the United States or any agency thereof in any manner or for 17 any purpose and one or more of such persons does any act to 18 affect the object of the conspiracy, each shall be guilty of 19 an offense against the United States. 20 Title 18, United States Code, Section 371 provides One of the objects of the conspiracy alleged in Count 21 One involves defrauding the Department of Labor and its 22 agency, MSHA: 23 By hampering, hindering, impairing, impeding, or 24 obstructing, by trickery, deceit, or dishonest means their 25 lawful and legitimate function in the administration and 5800 1 enforcement of mine safety and health laws at UBB; or by 2 depriving by trickery, deceit, or dishonest means the United 3 States of money that it otherwise would have received. 4 So, alternatively, before the jury can find the 5 defendant guilty of Count One, the Government must prove 6 beyond a reasonable doubt that during the indictment period 7 two or more persons agreed to defraud an agency of the 8 United States, namely, the Department of Labor or MSHA, by 9 depriving it of money at UBB by trickery, deceit, and 10 dishonest means or by obstructing its lawful functions at 11 UBB by trickery, deceit, and dishonest means; that the 12 defendant intentionally joined this agreement with knowledge 13 of its objects; that the defendant intended the Department 14 of Labor or MSHA to be defrauded of its money and to be 15 obstructed in its lawful functions at UBB; and that at least 16 one overt act in furtherance of the conspiracy was knowingly 17 and willfully committed by at least one member of that 18 conspiracy. 19 The Court instructs you that you must be unanimous 20 relative to whether the Government has proven beyond a 21 reasonable doubt that there was a conspiracy to defraud the 22 Department of Labor or MSHA by depriving it of money at UBB 23 or a conspiracy to defraud the Department of Labor or MSHA 24 by obstructing its lawful functions at UBB. 25 For the conspiracy charged in Count One of the 5801 1 superseding indictment, the evidence need not show that the 2 members entered into any express or formal agreement or that 3 they directly, by words spoken or in writing, stated between 4 themselves what their object or purpose was to be or the 5 details thereof or the means by which the object or purpose 6 was to be accomplished. 7 persons explicitly or implicitly came to an understanding to 8 achieve the specified crimes, whether or not they were 9 successful. 10 It is sufficient if two or more Similarly, the evidence need not establish that all of 11 the means or methods set forth in the superseding indictment 12 were in fact agreed upon to carry out the alleged 13 conspiracy, or that all of the means or methods which were 14 agreed upon were actually used or put into operation. 15 Neither must it be proven that all of the persons charged to 16 have been members of the conspiracy were such. 17 One may become a member of a conspiracy without full 18 knowledge of all of the details of the unlawful scheme, or 19 all the manner and means or overt acts committed in 20 furtherance of it, or the names and identities of all of the 21 other alleged conspirators. 22 So if you believe beyond a reasonable doubt that the 23 defendant, with an understanding of the unlawful character 24 of a plan, knowingly and willfully joined in an unlawful 25 scheme on one occasion, that is sufficient to convict him 5802 1 for conspiracy even though he had not participated at 2 earlier or later stages in the scheme and even though he 3 played only a minor part in the conspiracy. 4 the extent of a defendant's participation is not 5 determinative of guilt or innocence. 6 In other words, To act or participate knowingly means to act or 7 participate voluntarily and intentionally and not because of 8 mistake or accident or other innocent reason. 9 To act willfully in a conspiracy means to act 10 voluntarily and intentionally and with specific intent to do 11 something the law forbids, or with specific intent to fail 12 to do something the law requires to be done. 13 If a defendant or any other person with understanding 14 of the unlawful character of a plan knowingly and 15 intentionally encourages, advises, or assists for the 16 purpose of furthering the undertaking or scheme, he thereby 17 becomes a knowing and willful participant, a conspirator. 18 One who knowingly joins an existing conspiracy is 19 charged with the same responsibility as if he had been one 20 of the originators or instigators of the conspiracy. 21 If there is proof beyond a reasonable doubt that a 22 conspiracy existed and that the defendant was one of the 23 members of the conspiracy, then the statements and the acts 24 by any other member may be considered as evidence against 25 the defendant even if he had no knowledge of the statements 5803 1 and acts, provided such statements and acts were knowingly 2 made or done during and in furtherance of the conspiracy. 3 The crime of conspiracy to violate a federal law is an 4 independent offense. 5 actual violation of any specific federal laws which the law 6 refers to as substantive crimes. 7 It is separate and distinct from the You may find the defendant guilty of the crime of 8 conspiracy to commit an offense against the United States 9 even though the substantive crime which was the object of 10 the conspiracy was not actually committed. 11 The United States is not required to prove that the 12 parties to or members of the alleged agreement or conspiracy 13 were successful in achieving any or all of the objects of 14 the agreement or conspiracy. 15 Moreover, you may find the defendant guilty of 16 conspiracy despite the fact that he himself was incapable of 17 committing the substantive crime. 18 You are instructed that a conspiracy, once formed, 19 continues to exist until it has accomplished its manifest 20 purpose and objectives or it is terminated by the withdrawal 21 of the members of the conspiracy evidenced by a clear 22 showing of the intent of the conspirators to withdraw and no 23 longer be a part of the conspiracy. 24 25 In order to sustain its burden of proof as to Count One of the superseding indictment, the United States must prove 5804 1 beyond a reasonable doubt that one of the members of the 2 conspiracy knowingly performed at least one overt act, that 3 the overt act was performed during the life of the 4 conspiracy, and was done to somehow further a goal of the 5 conspiracy. 6 The Government must prove beyond a reasonable doubt 7 that an overt act committed in furtherance of the conspiracy 8 was committed on or after November 13th, 2009. 9 of a citation or order on or after November 13th, 2009, is 10 11 The receipt not an overt act and you may not consider it as one. Although you must unanimously find beyond a reasonable 12 doubt that the same overt act was committed, the United 13 States is not required to prove more than one of the overt 14 acts charged. 15 beyond a reasonable doubt all of the overt acts alleged in 16 the superseding indictment. 17 The United States is not required to prove Some of the people who may have been involved in these 18 events are not on trial. 19 requirement that all members of a conspiracy be charged and 20 prosecuted or tried together in one proceeding, nor is there 21 any requirement that the names of the other conspirators be 22 known. 23 This does not matter. There is no An indictment can charge a defendant with a conspiracy 24 involving people whose names are not known as long as the 25 Government can prove beyond a reasonable doubt that the 5805 1 defendant conspired with one or more of them. 2 are named or not does not matter. 3 Whether they You should exercise caution in evaluating the testimony 4 of co-conspirators and scrutinize it with great care. 5 should consider whether they have an interest in the case 6 and whether they have a motive to testify falsely in order 7 to assist the Government or in order to obtain favorable 8 treatment from the Government. 9 You In other words, ask yourselves whether they have a 10 stake in the outcome of this trial. 11 accepted by you if you believe it to be true. 12 to you, the jury, to decide what weight, if any, to give to 13 the testimony of an unindicted co-conspirator. 14 Their testimony may be And it is up You have heard testimony from a Government witness, 15 David Hughart, who pled guilty to other charges. 16 instructed that you are to draw no conclusion or inferences 17 of any kind about the guilt of Mr. Blankenship from the fact 18 that a prosecution witness pled guilty to similar charges. 19 That witness's decision to plead guilty was a personal 20 decision. 21 against or unfavorable to Mr. Blankenship. 22 You are It may not be used by you in any way as evidence Count Two of the superseding indictment charges that on 23 or about April 8th, 2010, in the Southern District of West 24 Virginia and elsewhere, the defendant, Donald L. 25 Blankenship, aided and abetted by others known and unknown 5806 1 to the grand jury, knowingly and willfully made materially 2 false, fictitious, and fraudulent statements and 3 representations, and knowingly and willfully made and caused 4 to be made and used a false writing and document knowing the 5 same to contain materially false, fictitious, and fraudulent 6 statements and entries in a matter within the jurisdiction 7 of an agency of the executive branch of the Government of 8 the United States, that is, the Securities and Exchange 9 Commission, in violation of Title 18, Section 1001 and 2. 10 You may return one of two verdicts with respect to 11 Count Two of the superseding indictment: 12 guilty. 13 Guilty or not In order to satisfy its burden of proof for the charge 14 in Count Two of the superseding indictment, the United 15 States must establish each of the following elements beyond 16 a reasonable doubt: 17 The defendant made a false, fictitious, or fraudulent 18 statement or representation or made or used a false writing 19 or document; 20 And in making the false, fictitious, or fraudulent 21 statement or representation or making or using the false 22 writing or document the defendant acted knowingly and 23 willfully; 24 25 And the false, fictitious, or fraudulent statement or representation or false writing or document related to a 5807 1 material matter within the jurisdiction of the executive 2 branch of the United States, that is, the United States 3 Securities and Exchange Commission, as charged in Count Two 4 of the superseding indictment. 5 You must be unanimous that the Government has proven 6 beyond a reasonable doubt each and every one of the elements 7 as to the first statement charged, the second statement 8 charged, or both. 9 the statements charged in Count Two, then you must find the 10 11 If you are not unanimous as to either of defendant not guilty. The statements charged in Count Two are the following 12 two statements made by Massey Energy Company on or about 13 April 8th, 2010, in a statement to shareholders. 14 Quote: "We do not condone any violations -- any 15 violation of MSHA regulations," end of quote, and, quote, 16 "We strive to be in compliance with all regulations at all 17 times," end of quote. 18 No statements other than the two statements charged in 19 Count Two can be the basis of a conviction to Count Two. 20 The indictment charges that the term "we" in the statement 21 refers to Massey Energy Company. 22 statement to be false, fictitious, or fraudulent, it is not 23 sufficient to find just that the defendant condoned 24 violation of MSHA regulations and/or did not strive to be in 25 compliance with all regulations at all times. Thus, in order for the 5808 1 To establish that the statements charged in Count Two 2 are false when made, the Government must prove beyond a 3 reasonable doubt that on or about April 8th, 2010, Massey 4 Energy Company condoned violations of MSHA regulations 5 and/or did not at all times strive to be in compliance with 6 all regulations. 7 The Government need not prove that the defendant 8 physically made or otherwise personally prepared the 9 statements in question. It is sufficient if the Government 10 proves beyond a reasonable doubt that the defendant caused 11 the statements charged in Count Two of the indictment to 12 have been made. 13 One makes a statement by stating it himself. To cause 14 a statement to be made means to make it happen or to bring 15 it about. 16 It is necessary for you to find beyond a reasonable 17 doubt that the defendant knew that the statements charged in 18 Count Two were to be utilized in a manner which was within 19 the jurisdiction of the United States Securities and 20 Exchange Commission. 21 United States Securities and Exchange Commission means that 22 the statement must concern an authorized function of that 23 agency. 24 25 To be within the jurisdiction of the Count Three of the superseding indictment charges that from on or about April 7th, 2010, through on or about 5809 1 April 9th, 2010, the defendant, Donald L. Blankenship, aided 2 and abetted by others known and unknown to the grand jury, 3 did directly and indirectly, by means and instrumentalities 4 of interstate commerce, and by means of the mails and of the 5 facilities of national securities exchanges, did make and 6 cause to be made untrue statements of material fact, and did 7 omit to state and cause to be omitted to state material 8 facts necessary in order to make the statements made in the 9 light of the circumstances under which they were made not 10 misleading, and did engage in acts and practices and courses 11 of business which operated and would operate as frauds and 12 deceits upon persons, all in connection with the sale and 13 purchase of securities, to-wit: Massey Class A Common Stock, 14 in violation of Title 15, United States Code, Section 78ff 15 Title 17, Code of Federal Regulations, Section 240.10b-5; 16 And Title 18, United States Code, Section 2. 17 You may return one of two verdicts with respect to 18 Count Three of the superseding indictment: 19 guilty. 20 Guilty or not In order to satisfy its burden of proof for the charge 21 in Count Three of the superseding indictment, the United 22 States must establish each of the following elements beyond 23 a reasonable doubt: 24 25 In connection with the purchase or sale of the securities described in Count Three of the superseding 5810 1 indictment, the defendant knowingly either made any untrue 2 statement of a material fact, or omitted to state a material 3 fact necessary in order to make the statements made in the 4 light of the circumstances under which they were made not 5 misleading; or engaged in an act, practice, or course of 6 business which operated or would operate as a fraud and 7 deceit upon persons; and in connection with this purchase or 8 sale, the defendant made use of or caused the use of any 9 means or instrumentality of interstate commerce or of the 10 mails or of any facility of any national securities 11 exchange, and the defendant acted willfully, knowingly, and 12 with the intent to defraud. 13 If you find from your consideration of the evidence 14 that the Government has not proven any one of these elements 15 beyond a reasonable doubt, then you must find the defendant 16 not guilty of this charge. 17 The statements charged in Count Three are the following 18 two statements made by Massey Energy Company on or about 19 April 8th, 2010: 20 Quote: "We do not condone any violation of MSHA 21 regulations," end of quote, and, quote, "We strive to be in 22 compliance with all regulations at all times," end of quote. 23 No statement, other than the two statements charged in 24 Count Three, can be the basis of a conviction on Count 25 Three. 5811 1 The indictment charges that the term "we" in the 2 statement refers to Massey Energy Company. 3 for the statements to be false at the time they were made, 4 it is not sufficient to find just that the defendant 5 condoned violations of MSHA regulations and/or did not 6 strive to be in compliance with all regulations at all 7 times. 8 9 Thus, in order To establish that the statements charged in Count Three were false or contained material omissions at the time they 10 were made, the Government must prove beyond a reasonable 11 doubt that on or about April 8th, 2010, Massey Energy 12 Company condoned violations of MSHA regulations and/or on or 13 about April 9th did not strive to be in compliance with all 14 regulations at all times. 15 No statements other than the specific statements 16 charged in Count Three can be the basis of a conviction on 17 Count Three. 18 In order for you to find the defendant guilty of the 19 crime charged in Count Three, the Government must prove 20 beyond a reasonable doubt that each and every one of these 21 elements as to at least one of the specific statements 22 charged in Count Three. 23 In order for you to find the defendant guilty of the 24 crime charged in Count Three, you also must be unanimous as 25 to which specific statement charged in Count Three the 5812 1 Government has proven beyond a reasonable doubt each and 2 every one of the elements. 3 any of the specific statements charged in Count Three, then 4 you must find the defendant not guilty. 5 If you are not unanimous as to There have been in this charge, ladies and gentlemen, 6 is a list of definitions relative to the counts that I've 7 gone over with you that I want to read to you and that you 8 will have with you in your jury deliberation room. 9 The term "defraud." As it relates to Count One of the 10 superseding indictment, the term "defraud" means to obstruct 11 or interfere by trickery, deceit, or dishonest means with 12 the lawful function of the United States Government or its 13 agencies or to deprive by trickery, deceit, or dishonest 14 means the United States of money or property. 15 The term "department or agency of the United States." 16 The Court instructs you that the United States Securities 17 and Exchange Commission and the Department of Labor are 18 agencies of the executive branch of the Government of the 19 United States. 20 The term "false, fictitious, or fraudulent statements 21 or representations." A false or fictitious statement is an 22 assertion which is untrue when made and which is known by 23 the person making it to be untrue. 24 or representation is an assertion which is known to be 25 untrue and which is made or used with the intent to deceive. A fraudulent statement 5813 1 "Fraud and fraudulent intent." The words "fraud," 2 "fraudulent," or "defrauding" means to trick, deceive, 3 injure, or damage in some way. 4 A statement which is untrue or a representation which 5 is false rises to the level of fraud when the person making 6 it knew the statement to be untrue or knew the 7 representations to be false at the time that the statement 8 or representation was made. 9 A statement which is untrue or a representation which 10 is false may also rise to the level of fraud when the person 11 making the statement or making the representation is acting 12 with the intent to trick, deceive, injure, or damage or is 13 making the statement or representation with reckless 14 indifference to its truth, accuracy, or falsity. 15 If you find that the evidence has established beyond a 16 reasonable doubt that the defendant acted with a fraudulent 17 intent or with an intent to defraud, it is unimportant 18 whether the defendant was successful and accomplished the 19 plan or was successful and did not accomplish it -- or, or 20 was unsuccessful and did not accomplish it. 21 It is not necessary for the Government to prove that 22 anybody was actually defrauded or that a defendant actually 23 profited by any fraudulent transaction. 24 25 "Intent to defraud" in the context of the securities laws means to act knowingly and with the intent to deceive 5814 1 2 investors. The term "frauds or deceits upon any person." For 3 purposes of Count Three the phrase "frauds or deceits upon 4 any person" means simply a lie or a trick which may be 5 established by showing beyond a reasonable doubt that the 6 fraud or deceit employed was of a kind which would cause 7 reasonable investors to rely. 8 9 The fraud or deceit itself need not concern the quality of an investment or actually result in the purchase or sale 10 of any securities. 11 in the fraud or deceit need not have sold or purchased 12 securities themselves as long as the fraudulent or deceitful 13 conduct operated against some person. 14 required to prove that the fraud or deceit was successful. 15 The individuals alleged to be involved "Interstate commerce." The Government is not The term "interstate commerce" 16 as used in these instructions means trade or commerce in 17 securities or any transportation or communication relating 18 to such trade or commerce among the several states. 19 In this regard, however, it is not necessary that the 20 defendant personally used any means or instrumentality of 21 interstate commerce or that such use was contemplated or 22 intended by anyone involved in any scheme. 23 for the Government to prove that a defendant set forces in 24 motion which foreseeably resulted in such use. 25 The term "knowingly." It is sufficient An act is done knowing if it is 5815 1 done voluntarily and intentionally and not because of 2 mistake or accident or other innocent reason. 3 of Count Two, a person acts knowingly if that person acts 4 consciously and with awareness and comprehension and not 5 because of ignorance, mistake, or misunderstanding or other 6 similar reason. For purposes 7 Further, with respect to Count Two, a person who makes 8 or causes to be made a statement which that person believes 9 to be true does not knowingly make or cause to be made a 10 11 false, fictitious, or fraudulent statement. The term "makes or uses any false writing or document." 12 The phrase "makes or uses any false writing or document" 13 means to create, to bring into existence, or to submit or to 14 file some type of document, form, report or letter of any 15 kind which is not true. 16 The term "mandatory mine safety standard." A mandatory 17 mine safety standard is a federal safety regulation lawfully 18 promulgated by the Secretary of the United States Department 19 of Labor pursuant to the terms of the federal Mine Act. 20 "Materiality." The test of materiality is whether the 21 false statement has a natural tendency to influence a 22 governmental action or is capable of influencing 23 governmental action. 24 25 It is not necessary for the United States to prove that the statement here charged actually influenced a 5816 1 2 governmental action. The Court instructs the jury that with respect to Count 3 Three, the securities fraud statute is concerned only with 4 such material misstatements of fact or such material 5 omissions and does not cover minor or meaningless or 6 unimportant ones. 7 With respect to Count Three of the superseding 8 indictment, a fact is material if there is a substantial 9 likelihood that a reasonable investor would consider it 10 11 important in making a decision to buy, sell or hold. In other words, there must be a substantial likelihood 12 that disclosure of the fact would be viewed by the 13 reasonable investor as a significant part of the total mix 14 of information available in making the decision. 15 To the extent that information about a company is not 16 important to reasonable investors, such information is not 17 material. 18 public domain or that has been made credibly available to 19 the market by other sources is not material. 20 reasonable investor should already possess information 21 sufficient to call the representation into question, the 22 statement is not material. 23 Further, information that otherwise is in the The term "operator." If a Operator means any owner, lessee, 24 or other person who operates, controls, or supervises a coal 25 or other mine or any independent contractor performing 5817 1 2 services or construction at such mine. The term "overt act." An overt act is any act 3 knowingly committed by one of the conspirators in an effort 4 to accomplish some object or purpose of the conspiracy. 5 overt act need not be criminal in nature if considered 6 separately and apart from the conspiracy. 7 alone, be an -- be as innocent as the act of a man walking 8 across the street or participating in a conversation where 9 arrangements in furtherance of the conspiracy are made or 10 11 The It may, standing driving an automobile or using a telephone. It must, however, be an act which follows and tends 12 towards accomplishment of a plan or scheme and must 13 knowingly be done by one of the conspirators of some object 14 or purpose of the conspiracy charged in the superseding 15 indictment. 16 agreement, appear totally innocent and legal. 17 18 The overt act may, but for the alleged illegal "Security." The term "security" includes any stock in a company. 19 The term "willfully" with respect to Count One, a 20 violation of a safety standard, is done willfully if it is 21 done knowingly, purposefully, and voluntarily either in 22 intentional disobedience of the standard or in reckless 23 disregard of its requirement. 24 25 Reckless disregard means the closing of eyes to or deliberate indifference towards the requirements of a 5818 1 mandatory safety standard, which standard the defendant 2 should have known and had reason to know at the time of the 3 violation. 4 either of commission or omission, not merely the careless 5 omission of a duty. 6 The term "willfully" requires an affirmative act Stated differently, a person willfully violates a 7 mandatory health and safety standard if he knowingly, 8 purposefully, and voluntarily commits an act forbidden by 9 the standards or knowingly, purposefully, and voluntarily 10 11 fails to perform an act required by the standards. A person with supervisory authority at or over a mine 12 willfully fails to perform an act required by a mandatory 13 safety or health standard if he knows that the act is not 14 being performed and knowingly, purposefully, and voluntarily 15 allows that omission to continue. 16 A person with supervisory authority at or over a mine 17 also willfully violates a mandatory mine safety or health 18 standard if he knowingly, purposefully, and voluntarily 19 takes actions that he knows will cause a standard to be 20 violated or knowingly, purposefully, and voluntarily fails 21 to take actions that are necessary to comply with the 22 mandatory mine safety or health standard, or if he 23 knowingly, purposefully, and voluntarily takes action or 24 fails to do so with reckless disregard for whether that 25 action or failure to act will cause a mandatory safety or 5819 1 health standard to be violated. 2 The word "willfully" as used in Count Two of the 3 superseding indictment means that the defendant committed 4 the act voluntarily and purposefully and with knowledge that 5 his conduct was in a general sense unlawful. 6 defendant must have acted with a bad purpose to disobey or 7 disregard the law. 8 9 10 11 That is, the The Government need not prove that the defendant was aware of the specific provision of the law that he is charged with violating or any other specific provision. For a person to have willfully caused another to commit 12 an unlawful act means that the act not only must have been 13 caused by the person's activities, but also that the person 14 causing the act to be done must have had the specific intent 15 of bringing about the commission of the crime. 16 Ladies and gentlemen, you will recall that you heard 17 testimony regarding e-mails, notes, and letters sent to and 18 received by the defendant. 19 regarding citations, daily violation reports, and the 20 so-called Ross memorandum. 21 You have also heard testimony You are instructed that you cannot consider this 22 evidence to establish the truth of the information contained 23 in it, but you can consider this evidence on the issues of 24 motive, notice, knowledge, willfulness, and materiality as 25 related to the charges contained in the indictment in 5820 1 2 keeping with this Court's full instructions. Lastly, you heard testimony regarding a survey of 3 underground miners regarding certain safety issues. 4 Court instructs you that you cannot consider the questions 5 and answers for the truth of those matters or whether the 6 percentages are accurate, but you can consider this evidence 7 regarding the issues of knowledge and intent as related to 8 the charges contained in the indictment under the Court's 9 full instructions. 10 Will the Government go forward with closing argument? 11 MR. DELINSKY: 12 THE COURT: 13 (Bench conference on the record) 14 THE COURT: 15 MR. DELINSKY: Your Honor, may we approach? Yes, sir. 16 17 18 19 20 21 THE COURT: 22 MR. DELINSKY: 23 THE COURT: 24 25 The MR. DELINSKY: 5821 1 2 THE COURT: 3 MR. DELINSKY: 4 THE COURT: 5 6 MR. DELINSKY: 7 8 9 THE COURT: 10 11 12 13 MR. DELINSKY: 14 THE COURT: 15 (Bench conference concluded) 16 THE COURT: 17 closing argument at this time, counsel? MR. GOODWIN: 18 19 Will the Government go forward with THE COURT: 21 MR. GOODWIN: 23 May it please the Court. 20 22 Yes, Your Honor. Yes, sir, Mr. Goodwin. Counsel, ladies and gentlemen of the jury, it's good to finally look directly at you. The defendant, Don Blankenship, ran a massive, massive 24 criminal conspiracy. The plan and understanding that 25 Blankenship dictated to all and which all knew had to be 5822 1 agreed to or face the consequences was designed to operate 2 the UBB mine and Massey as a lawless enterprise. 3 The defendant and his group of "yes" men like Chris 4 Blanchard sought to obstruct, hide, and distract others from 5 this truth. 6 conspiracy engaged in a pattern of fear and intimidation and 7 propaganda. 8 9 Mr. Stewart put it best. Defendant's The goal of defendant's conspiracy was to violate the mine health and safety laws in order to run more coal. 10 to do this, he engaged in a relentless campaign of 11 obstruction. And 12 The defendant's conspiracy engaged in a system of 13 advance warnings to tip off the members underground to hide 14 surely thousands more violations that were not ever able to 15 be caught by inspectors. 16 Defendant's conspiracy cheated on dust pump samples 17 because there was no way they could be in compliance given 18 the outlaw nature in which he demanded that coal be mined. 19 Defendant's conspiracy at his explicit direction sought 20 to keep the ominous warnings of Bill Ross secret, 21 privileged, and confidential. 22 Defendant's conspiracy required and perpetuated a code 23 of silence where members weren't to talk to mine inspectors. 24 Defendant's conspiracy would buy flashy things and call 25 them innovations to distract from the perpetual law-breaking 5823 1 in which the defendant and his conspiracy engaged. 2 And after the UBB mine disaster, defendant's conspiracy 3 lied and misled the SEC and the public about what was really 4 happening there by falsely stating that Massey did not 5 condone any violation of the mine safety laws and strived 6 to, did strive to be in compliance with all laws at all 7 times. 8 Now, imagine if the defendant -- 9 That's why you never use technology, folks. 10 Imagine if the defendant had filed the Ross memo 11 instead of the propaganda that he and his co-conspirators 12 put in the 8-K document filed with the SEC after the 13 explosion. 14 15 16 Here's what the defendant was told and what the public should have been told. "The attitude at Massey operations is if you can get 17 the footage, we can pay the fines. Foremen are continually 18 forced to operate with skeleton crews. 19 men, they're given five and they're still expected to 20 produce big footage. 21 get caught. If they need nine We are told to run, run, run until we Then we will fix it." 22 "Massey is plainly cheating on dust sampling at some of 23 its operations, and foremen have admitted that they cheat on 24 dust sample day. 25 carrying out what they were told to do." They feel that in doing so that they're 5824 1 And this comes back to lack of personnel. "They feel 2 their job is to run big footage, and when they are given 3 citations, the company will simply pay the fine." 4 "If I try to do the right thing, I'll get fired. 5 just keep my mouth shut and do what I'm told. 6 to be allowed to do the right thing anyway." 7 by Massey employees. 9 on inspections and violations." 11 12 13 14 I ain't going "Inspectors have also been openly ignored, laughed at 8 10 I In addition, Massey pushes back more "The inspectors continue to find repeat violations. Massey never improves." "Massey managers have told Bill that they're allowed to violate the law as long as they run good footage." "There is no one to fix outby problems when they go 15 wrong unless the face people," people from their production 16 sections, "are sent there to fix them." 17 "Bill suggests that Massey pick a mine and focus on it 18 to be the model mine for MSHA and the rest of the company. 19 Performance," which as you know operated UBB, "would be a 20 good candidate because it has multiple operating types and 21 needs a lot of work. Imagine if that were done." 22 "When he sees the dust results, he can conclude only 23 that we haven't learned anything from our past problems." 24 25 "After the Aracoma accident, Massey paid attention to getting everything right. However, that stopped after 5825 1 2 3 4 5 6 several months." Again, "We've been told to run, run, run no matter what. We will fix it when they find it." "The big four problems are ventilation and examinations, roof control, clean-up, and electrical." "We would rather get violations including unwarrantable 7 actions than wait for approval. 8 concern for both safety and the law." 9 10 11 This shows a lack of "And sooner or later we will pay the price, especially if there is a serious injury or a fatality." Now, you'll note on each one of these slides down in 12 the corner there is a Government exhibit number. 13 have those exhibits at your disposal when you go back to the 14 jury room. 15 can look at all of the evidence that we've put in over these 16 several weeks. 17 You'll So you can read the memo for yourself and you The defendant conspired with others not to just violate 18 the law a couple times or even a dozen times, but hundreds 19 upon hundreds of times at UBB, thousands upon thousands of 20 times at Massey. 21 His message was, "Run coal." You saw it in these memos starting with this one. 22 "Running coal. If anybody has been told to do anything else 23 other than run coal, ignore it. 24 keep them running coal." 25 running enough coal." Run coal. Our goal is to That is the sections. "We're not 5826 1 2 3 4 To Chris Blanchard: sections. "Acting like construction Get as low as possible and run coal." "You need to get as low on UBB number 1 and number 2 and run some coal." 5 "P.S. 6 "Please be reminded that your core job is to make 7 money. Run coal. Don't bolt for the year 2525." To do this, you have to run coal." 8 "Run more coal, not less." 9 You heard the testimony from his 10 six-hundred-thousand-dollar-per-year "yes" man, Blanchard, 11 that there was an understanding, and Blankenship was a party 12 to that understanding, to run coal and pay the fines. 13 the law and pay the fines. 14 Break His method of operation was to violate nearly every 15 criminal law on mine safety in the book. 16 unless MSHA told him they were going to shut him down if he 17 kept it up. 18 19 20 That is until or The miners were told to, "Run, run, run until we get caught. When we get caught, then we'll fix it." He would then hire contractors, clean up the mine until 21 the inspectors withdrew the threat. 22 immediately go back to the old ways of, "Run coal." 23 Then he would At the beginning of the trial we knew that the defense 24 would really work to muddy the waters, and they've certainly 25 tried. But despite their efforts, this remains a very 5827 1 2 straightforward case. The defendant, Don Blankenship, conspired with others 3 to commit violations of miner safety laws and to obstruct 4 the enforcement of those laws. 5 explosion that occurred at Upper Big Branch, he lied and 6 caused the company to lie to the SEC and the investing 7 public about the company's mining practices and its safety 8 practices. 9 And then after the fatal When we talked to you at the beginning of the trial, we 10 told you how we were going to prove the case against the 11 defendant. 12 each element of each of the three crimes with which the 13 defendant has been charged. 14 Now my purpose is to show you how we've proven I don't know that I've ever formally introduced myself. 15 My name is Booth Goodwin. I'm the United States Attorney in 16 and for this district. 17 Greg McVey, and Steven Ruby. 18 States Attorneys in my office. 19 the United States of America in this. At counsel table is Gabriele Wohl, They are Assistant United We are honored to represent 20 As the United States Attorney -- I was an Assistant 21 United States Attorney for about nine years before being 22 appointed by the President of the United States to serve in 23 this role. 24 about three dozen times the other day. 25 I think you'll remember his name. But let me be clear. It was said I was not ordered to do anything 5828 1 by the President of the United States or anyone in this 2 case. 3 United States to support and defend the Constitution of the 4 United States and to do justice. 5 order, and that's your simple task here. 6 My only orders come from the Constitution of the That is, that is my simple Much of the trial I've been sitting right over there 7 next to you watching the evidence come in. 8 been part of the investigation and prosecution team on this 9 case from the start. Of course, I've But what I've tried to do over and 10 over again the last several weeks is to try to look at this 11 case the way you would look at this case. 12 I've tried to think back to a time when I really didn't 13 know anything about Massey Energy or the defendant. 14 to think back to a time when I didn't know anything about 15 how coal is mined or how mines are kept safe. 16 I tried I tried to think back to a time when I thought the 17 inside of coal mines were supposed to be black rather than 18 white from being properly rock dusted. 19 coal mine before being involved in this case. 20 bet that a number of you haven't been in a coal mine either. 21 Now, I feel like I have a pretty good understanding I hadn't been in a And I would 22 about how to safely mine coal and, most of all, a real 23 appreciation for the miners who do so. 24 25 And then there's this courtroom stuff. you haven't served on a jury before. I know many of And after this, I'd 5829 1 2 say you've probably earned your stripes. And as you know by now, if you ever had any doubt, it 3 takes a lot longer than it does on those shows like Law and 4 Order. 5 which you would probably say is an understatement. 6 those not so exciting parts are still important. 7 And there are many parts that aren't very exciting, But Now, you've received a number of instructions from the 8 Court. 9 instructions are very important. You might get some more. Those are -- those They'll instruct you on 10 certain definitions, and already have, about how to parse 11 through the evidence in this case. 12 So I've tried to put myself in your shoes and tried to 13 think of the questions that you would have. And we really 14 tried to give you a substantial cross section of witnesses 15 and evidence without totally overwhelming you. 16 And I believe that we've answered those questions. 17 if you still have some, I hope that in my time here with you 18 I'll be able to answer those and connect the dots. 19 And You were told at the beginning of this case, and again 20 by the Judge just a few moments ago, that the defendant is 21 charged in a three-count indictment. 22 The first count charges the defendant with conspiring 23 with others at Massey to violate the mine safety laws and to 24 obstruct MSHA in their enforcement of those laws. 25 The second count charges the defendant with making or 5830 1 causing false statements to be made to the Securities and 2 Exchange Commission. 3 And the third count charges the defendant with making 4 or causing false statements to be made and, importantly, 5 omitting facts that should have been included. 6 Both Counts Two and Three relate to the statements, 7 quote, "We, Massey, do not condone any violation of the 8 mine -- of Mine Safety and Health Administration, MSHA, 9 regulations." 10 11 And, quote, "We, Massey, strive to be in compliance with all regulations at all times." So let's start with this idea of conspiracy. 12 Conspiracy has a particular legal definition as you just 13 heard. 14 "conspiracy," you might have thought about folks in a dark 15 room dividing up loot all together. 16 When you heard before coming in here the word But you've heard the Court's instructions and now know 17 that the understanding that we're talking about doesn't need 18 to be formal. 19 through actions. 20 same ways can show that there is an understanding that those 21 laws are to be broken. 22 co-conspirators did not need to know all of the acts that 23 were done to further the conspiracy. 24 25 It can be unspoken. It can be demonstrated Individuals breaking the same laws in the And the defendant and his An understanding can exist from the top of an organization all the way to the folks down at the bottom of 5831 1 the organization, all the way up at the top of the corporate 2 ladder to the folks mining coal in the mine, even though 3 those individuals might never have ever spoken. 4 It's just like a drug kingpin who doesn't need to know 5 about every drug sale that is made by one of his street 6 corner drug dealers. 7 details about every violation of mine safety laws in order 8 to be guilty of conspiracy. 9 The defendant doesn't need to know the A drug kingpin doesn't need to know about lookouts 10 posted outside a drug house for the purpose of tipping off 11 the drug dealer inside if the police are coming. 12 The defendant doesn't need to know the details of 13 miners covering up law-breaking after being tipped off that 14 inspectors are on their way in. 15 16 Being a part of an understanding is all that is required for the defendant to be guilty of Count One. 17 Now, you may remember that Mr. Taylor asked Mr. 18 Blanchard a number of times if he conspired with the 19 defendant. 20 followed up with Mr. Blanchard, you'll recall that he didn't 21 understand what conspiracy means under the law that you now 22 know. 23 But you'll recall that we objected. And when we Ultimately, it's up to you to determine, based on the 24 testimony and the evidence that you've been presented with, 25 whether or not the defendant and others, including 5832 1 2 Blanchard, were part of the conspiracy. Someone's opinion of whether or not they conspired with 3 the defendant does not carry the day. 4 believe there was a conspiracy, an understanding based on 5 the evidence you heard and the definitions of the conspiracy 6 that the Court just gave you. 7 8 9 It's whether you The Court told you that the elements of the crime of conspiracy are these: Two or more persons came to a mutual understanding to 10 violate the law. 11 the conspiracy. 12 conspiracy knowingly committed at least one of the means or 13 methods or overt acts to further the conspiracy. 14 The defendant willfully became a member of And one of the conspirators during the We have proven beyond a reasonable doubt that the 15 defendant was involved in an understanding with others at 16 Massey that he and others knew would and did result in 17 intentional violations of mine safety laws. 18 In fact, we've proven beyond a reasonable doubt that 19 the defendant was the leader of that conspiracy. 20 kingpin. 21 that year after year was cited for thousands upon thousands 22 of preventable violations of mine safety laws. 23 fact, year after year Massey was the worst in the country 24 and the defendant knew it. 25 He was the Under his leadership, Massey was an organization And, in But where a drug kingpin might not be aware of many 5833 1 details that are going on down deep in the organization, you 2 heard and saw over and over again how the defendant 3 micro-managed his operation, especially UBB, because the 4 longwall was the money machine. 5 and got reports every 30 minutes day and night, work days 6 and weekends. 7 He even insisted on reports There are two aspects to this conspiracy. The first 8 aspect you'll see is that the defendant and others had an 9 understanding that mine safety laws would be violated 10 11 despite defendant's duty to see that the laws were followed. And the second aspect is that the defendant and others 12 had reached an understanding that MSHA would be obstructed 13 in its efforts to enforce the mine safety laws and unable to 14 collect the fines associated with those citations had they 15 been written. 16 Part of the obstruction aspect of this conspiracy also 17 includes the lies that the defendant and his co-conspirators 18 told after the UBB explosion, the false statement that 19 Massey does not condone violating mine safety laws and 20 strives to be in compliance with all laws at all times. 21 Even though we've proven defendant is guilty of both 22 aspects of the conspiracy, if you find that the defendant is 23 guilty of just one, he is guilty of Count One. 24 25 So let's start with the first aspect of this conspiracy, to violate mine safety laws. 5834 1 To help you with deciding whether defendant and others 2 conspired to violate mine safety laws, we've given you a 3 crash course in coal mining. 4 authority over a mine, including the defendant, have a duty 5 to see that the mine laws are faithfully followed. 6 People with supervisory As you've learned, coal mines can be dangerous places 7 if the mine safety laws aren't followed. 8 Stumbo to start out with, and you heard it from the coal 9 miners who worked underground. 10 the big four violations: 12 control, and electrical. 13 You heard it from Bill Ross. And the Ross memo put it this way. 11 Now, ventilation. You heard from Mr. Massey suffers from Ventilation, clean-up, roof You've heard that proper ventilation 14 is perhaps the most important thing for safe operation of 15 coal mines. 16 flowing through. 17 through a series of fans either blowing in or pulling out. 18 In order to keep the mine safe, air needs to be That ventilation is generally provided Despite what you've heard from the defense, this isn't 19 complicated. 20 MSHA was part of this problem on ventilation. 21 Remember all that business about belt air. 22 lost. 23 MSHA. 24 25 The defense seems to want you to believe that I'm still But here's what the defendant himself said about (Recording Played) MR. GOODWIN: Ventilation is important because it 5835 1 sweeps out methane which is released during the mining 2 process. 3 coal dust that can cause black lung disease and which can 4 also fuel and spread explosions. It also sweeps out coal dust floating in the air, 5 Roof control is also an important part of ventilation. 6 It's important for the tunnels in the mines called entries, 7 cross-cuts, or breaks to remain intact and open. 8 a cave-in that obstructs the flow of air in the mine, it 9 short-circuits the ventilation system. If there's But, more critical, 10 if there is a miner nearby, a cave-in can also result in 11 substantial injury or death. 12 Therefore, it's essential to support the roofs of 13 mines. 14 are driven up into the rock above to support the mine roof. 15 You've seen where UBB was repeatedly caught and cited for 16 violating the laws that require proper ventilation and roof 17 control, and heard from witness after witness, miner after 18 miner that the conditions that were the basis for those 19 citations existed all the time at UBB. 20 And you've seen the long bolts with the plates that You heard from Ms. Pauley. You'll remember. It's been 21 a few weeks ago now. 22 was forced to work in dangered-off areas, crawl under moving 23 belts while on a red hat crew with a supervisor who was 24 uncertified. 25 But you heard from Ms. Pauley. She She told you about the terrible conditions driving back 5836 1 toward the Bandytown fan; that there was flooding, that 2 there was water roofed out so no air could pass through; 3 that she complained to supervisors about conditions with 4 regard to the water, the ribs, the roof, and the air but 5 there was never any changes; and there was never enough 6 fresh air for the miners to breathe and to sweep out 7 explosive coal dust and methane. 8 9 10 11 12 13 14 15 Mr. Smith also told you that there was never enough fresh air for the miners to breathe and to sweep out explosive coal dust and methane. Mr. Racer. Blanchard told him not to worry about ventilation and to worry more about production. Another foreman, Andy Coalson, instructed Racer's crew to continue to work in low air. Blanchard pressured Racer's supervisor -- we'll see him 16 in a minute -- Mr. Hutchens, to continue to work and 17 continue to run coal in low air. 18 19 20 21 22 23 24 25 Blanchard directed crew, crews to cut breaks into intake air. Racer also worked in water up to his neck going back through those entries to the Bandytown fan. Mr. Stover told you that air-lock doors were often left open. They were damaged. Mr. Hutchens also told you how he had to work in water behind the longwall for five or six weeks; that he ordered 5837 1 Everett Hager, the superintendent there, to wade through 2 water up to his chest; ordered to make unauthorized 3 ventilation changes by the superintendent there, Gary May. 4 Mr. Adams told you about times there wasn't enough 5 fresh air for the miners to breathe and to sweep out 6 explosive coal dust and methane at UBB. 7 Mr. Ellison told you there wasn't enough fresh air for 8 the miners to breathe and to sweep out explosive coal dust 9 and methane. 10 Superintendent Gary May directed him to knock holes in 11 stoppings to regulate air when the inspectors were going -- 12 to where the inspectors were going in order to conceal the 13 bad ventilation that was there and then build those 14 stoppings back up when the inspectors left. 15 complaints from Terry Moore, who was another foreman at UBB, 16 for not mining due to low air. 17 told you it got so dusty that he couldn't see. 18 And Mr. Stewart. He received At times when running, he The ventilation system, he told you, 19 was broken. 20 on headgate 22 the anemometer used to measure the air 21 wouldn't move at all. 22 coal anyway. 23 The sections never had enough fresh air. Once But Blanchard told Hutchens to run In July, 2009, he was instructed to make an illegal 24 ventilation change by knocking out stoppings and changing 25 sweep air on headgate 21. And what made it worse was there 5838 1 was a crew inby working while they made this ventilation 2 change. 3 His foreman and his crew were ordered by Blanchard to 4 cut breakers into intake air causing contaminants to sweep 5 into the face. 6 saw him tell you that that citation on, for inadequate 7 ventilation was consistent with the conditions that he saw 8 day in and day out at UBB. 9 He also took you through a citation. And did the defendant care? No. Here's what he had to 10 say about ventilation. 11 number 1 and number 2 and run some coal. 12 ventilation at an appropriate time. "You need to get as low on UBB 13 You also heard him. 14 (Recording Played) 15 16 17 MR. GOODWIN: You We'll worry about Now is not the time." "Black lung is not worth the effort they put into it." Coal accumulations and rock dusting. As you've also 18 heard, during the mining process chunks of coal are ripped 19 out of the coal seam, and those chunks are loaded on 20 conveyor belts and carried out of the mine. 21 At the same time, finer particles of coal are produced 22 and often left behind. 23 loose coal out of the mine or mix it with material that 24 won't explode. 25 It's important to either get that And as you've heard, that material used for that 5839 1 purpose is pulverized limestone, otherwise known as rock 2 dust. 3 If the coal isn't cleaned up or mixed with rock dust, 4 it's highly combustible. 5 otherwise small explosion to ripple and build throughout a 6 mine. 7 accumulations of loose coal and coal dust and mix what might 8 be left with rock dust. It's explosive, enabling an Therefore, it's incredibly important to clean up 9 You've seen where UBB was repeatedly cited for 10 violating the laws that require keeping the mine clear of 11 accumulations of coal dust. 12 And you again heard from witness after witness that the 13 conditions that were the basis for those citations existed 14 all the time at UBB. 15 time. 16 Violations were happening all the Mr. Young told you. He told you that UBB was not 17 adequately rock dusted; that he didn't have the proper 18 equipment, help, or time to adequately rock dust UBB. 19 complained to his supervisor over and over again. 20 wrote in a notebook to his supervisor that he was being set 21 up to fail. 22 He He even Mr. Stover told you he was often prevented from 23 starting his rock dust shift because of the deficient 24 equipment, or that the reason that the longwall crew got 25 priority travel time. He was only able to rock dust about 5840 1 two to three hours a shift. 2 you've seen, UBB is a massive mine. 3 to happen all the time. 4 You've got to remember, and as And rock dusting needs The rock duster that he was to use was often broken. 5 He was instructed by his supervisor, Gary May, to do 6 production work while on his rock dusting shift. 7 the supervisor when he didn't get to rock dust an assigned 8 area. 9 Mr. Hutchens. He told He told you often when his shift started 10 he would have to delay production to clean up and rock dust 11 everything the previous shift had left for him. 12 Mr. Adams, the fire boss, told you about accumulations 13 of coal dust around conveyor belts and inadequate rock 14 dusting that became worse after he lost his crew of red 15 hats. 16 He took you through the citation for float coal dust 17 accumulation and told you that it was consistent with 18 conditions he observed at UBB all the time. 19 Mr. Ellison. He said he would be forced to skip rock 20 dusting and mining sequences if short-handed, which was 21 nearly all the time. 22 Mr. Stewart told you the same thing. He and his crew 23 couldn't always rock dust and clean after cutting and 24 bolting due to the pressure to keep running. 25 And Mr. Halstead. He took you through the exam books 5841 1 reflecting -- that reflected that hazards were found during 2 his fire boss runs and unable to be corrected. 3 And you saw Agent Lafferty take you through these 4 exhibits which you'll have at your disposal to show you just 5 how many times a condition was reflected and then not 6 reflected as being corrected over the period just a little 7 over a month. 8 9 A lot of these miners like Mr. Halstead, Mr. Stewart, Mr. Hutchens, they've been mining coal their whole life. 10 They know what it takes. 11 people. But they also know that it takes 12 You also heard Chris Blanchard talk about all the 13 citations, many, many citations about just these particular 14 conditions and that these were the kinds of conditions that 15 were readily preventable. 16 And, finally, ignition sources. It's important to 17 eliminate sources of ignition in a coal mine. 18 you're not going to get a flame without an ignition. 19 Of course, The mining machines used in the mining, mine -- used to 20 mine the coal, both the continuous mining machine and the 21 longwall shearer use drums with bits. 22 coal mines come from the electrical equipment used in the 23 mines and from the bits used to rip the relatively soft coal 24 from the coal seam by hitting the rock. 25 Ignition sources in As you've heard, it's important that these bits remain 5842 1 sharp and that the water sprays on the drums are in working 2 order and free of clogs to prevent ignitions and reduce the 3 amount of coal dust produced. 4 You heard from Mr. McElroy who told you he observed 5 several missing and clogged water sprays on the longwall 6 shearer following the explosion. 7 was run through that shearer drum with the missing sprays 8 that there was really no water pressure coming out of any of 9 the sprays. 10 And he told you when water You also heard from every mining witness that testified 11 that complying with the law isn't hard. 12 heard, it's probably -- and you know that it is a matter of 13 simple housekeeping. 14 In fact, as you've And, in fact, when UBB was threatened with being placed 15 on the pattern of violators list, defendant and his 16 co-conspirators made sure that UBB had what it needed and 17 the violations of the mine safety laws were cut dramatically 18 in just a matter of days. 19 Resources were devoted because if the mine was placed 20 on the pattern of violators list, it was a death sentence 21 for a mine. 22 as the threat of closure was lifted, the resources went 23 away. 24 25 It meant almost certain closure. You heard Mr. Adams tell you. But as soon During that time, additional red hat miners were hired to clean belts in 2008 5843 1 which, of course, resulted in fewer violations. 2 work force was reduced and reduced again. Then the 3 After they lost the additional crew members that he 4 told you about, he didn't have enough time to keep the belts 5 clean. 6 worked on shifts with only two fire bosses, not enough fire 7 bosses to even examine the mines. 8 9 It was impossible to keep up with all the work. Mr. Hodge told you how much the violations went down with the measures taken during the PPOV period. After the 10 PPOV period, Saturdays that had been dedicated to doing 11 maintenance went back to production instead of that 12 maintenance. 13 He Now, the principles upon which the mine safety laws are 14 based have been around for more than 100 years. And people 15 with control over the mines, including the defendant, 16 especially the defendant, has a duty to see that his mines 17 complied with the mine safety laws. 18 Despite his duty to see that mine safety laws are 19 followed, the defendant ran Massey in a way that violating 20 mine laws was inevitable, and he knew it. 21 simply could not mine the amount of coal he demanded with 22 the limited amount of people he was willing to devote and 23 the resources that he was willing to devote without breaking 24 the law. 25 He knew that you And he kept right on doing it. You heard from the miners that the pressure was 5844 1 constant. 2 defendant and his "yes" men would find someone who would. 3 4 5 6 7 You heard that they either ran coal or the Ms. Pauley. She told you that she was instructed by a supervisor to run illegally to produce more coal. Mr. Smith told you that violations were routine; that he never got the time necessary. Mr. Hutchens. He was personally threatened with his 8 job by Mr. Hager if he didn't produce enough coal. 9 stopped production to address safety issues, his job was When he 10 threatened by supervisors. 11 Hutchens to produce coal and threatened him with his job. 12 And Mr. Stewart. Blanchard himself pressured Mr. You may recall after many objections, 13 Mr. Stewart was finally able to talk about the understanding 14 that existed. 15 attitude was, the laws don't apply to us. 16 They not only condoned breaking them, they encouraged 17 breaking them, and they demanded that they be broke." 18 He said that, "My experience there, the We don't care. Not that he needed to be told, but the defendant was 19 told time and time and time again, eventually day after day 20 that Massey's mines, and UBB in particular, were breaking 21 the law at the rate of thousands of times per year. 22 This shows you the violations reports that were sent to 23 the defendant; 250 during the period between April 3rd, 24 2009, and April 5th of 2010. 25 The defendant was told time and again that his mines 5845 1 needed more miners to comply with the law. 2 Ross that Massey couldn't afford to hire one more miner per 3 section even though Massey certainly had plenty of money to 4 do so. 5 thousand people off the payroll. 6 7 But he told Bill In fact, you heard him say that he needed to get a (Recording Played) MR. GOODWIN: You heard about the need for more 8 staffing and what more staffing could do. You saw memos and 9 meetings and speeches and slogans about safety. But you 10 heard miner after miner tell you that never did they receive 11 the personnel and the time necessary to comply with the 12 safety laws unless, of course, failure to comply would 13 affect production. 14 In fact, you saw 30 miners cut from the roles at UBB at 15 the end of March of 2010. 16 folks working at UBB that never had the time to properly 17 comply with the law. 18 Time and again you heard the UBB received 836 violations. Virtually everyone you've 19 heard from, including Blanchard, told you that the vast 20 majority of those could have been prevented with adequate 21 staff and sufficient time away from production to do the 22 things necessary to comply with the law. 23 The defendant had a duty to see that the mines he 24 operated complied with the law. But instead he pushed and 25 he pushed and he pushed and laws were intentionally broken. 5846 1 Now, the defense wants to distract you from this 2 blatant, willful law-breaking by talking about what the 3 defendant did for safety. 4 didn't really ever do anything for safety. 5 But let's be clear, the defendant People like the defendant want things, want to possess 6 things. 7 whizbang so-called innovations which, by the way, as you 8 heard, the miners working underground never saw any of them. 9 But things don't make mines comply with the safety In his mind the answer was always more things, more 10 laws. 11 committed to a common purpose to put in a day's work, to do 12 so safely and go home at the end of a shift. 13 People do. What keeps mines safe is people, people The defendant, someone who made almost $18 million in 14 the year 2009 with Massey, could have personally paid for 15 more -- for one more person per mining section and still had 16 more than $10 million left over that year. 17 In fact, for the amount of money defendant made in that 18 year alone, Massey could have hired 275 coal miners at 19 $65,000 a year. 20 But that's really what it all boils down to. The 21 defendant was on a mission to seek and destroy costs. 22 more miners cost money. 23 miners or taken time away from running coal in order to keep 24 from violating the mine safety laws, he wouldn't be able to 25 put as much money in his pockets and the pockets of his And If he had -- if he had hired more 5847 1 "yes" men. 2 and they did exactly what they were told to do. 3 And he needed those "yes" men to do his bidding, (Recording Played) 4 MR. GOODWIN: And you heard from Lisa Williams who 5 told you when Blanchard got off those calls what he looked 6 like, what his demeanor was. 7 whipped pup. 8 like? You saw him. She told you he looked like a What do you think he looked 9 We have proven beyond a reasonable doubt that the 10 defendant conspired with his "yes" men to violate the mine 11 safety laws hundreds upon hundreds of times at UBB and 12 thousands of times across Massey. 13 Now, how did the defendant and his co-conspirators get 14 away with the intentional violation of mine safety laws? 15 The answer is that they had to distract, obstruct, impede, 16 and lie. 17 In order to be -- in order to avoid being caught for 18 even more violations than the mine safety laws, you heard 19 witness after witness tell you that the defendant and his 20 co-conspirators insured that miners working underground were 21 illegally tipped off to the presence of mine inspectors on 22 the property so that miners could cover up as many 23 violations of the law as they could before the inspectors 24 arrived on the scene. 25 Ms. Pauley told you that she consistently received 5848 1 advance notice of inspectors from dispatchers so that the 2 crews that she was working on could cover up violations 3 before inspectors arrived. 4 She also told you that she for a time worked as a 5 dispatcher; that she was instructed by superiors to call 6 underground and tip off the sections that inspectors were on 7 their way. 8 Mr. Smith told you all the time he got warnings about 9 inspectors, and those warnings were given in code so that 10 employees could cover up violations underground; to change 11 air. 12 condition. 13 14 15 Inspectors never saw the mine in their regular Mr. Racer told you that crews underground knew when inspectors were coming and they covered up violations. Mr. Justice who worked entirely as a dispatcher at UBB 16 was instructed by supervisors to call underground to let 17 crews know that inspectors were coming so they could cover 18 up law-breaking. 19 If he could get -- if he couldn't get the section's 20 attention, he'd turn off the belt to signal the crew to call 21 out and then he'd use code words to deceive inspectors. 22 Mr. Hughart allowed the practice of tipping off 23 sections to obstruct MSHA to happen consistently at his 24 mines and pled guilty to similar charges. 25 Mr. Hutchens received calls from dispatchers to let him 5849 1 know the inspectors were coming; or if they couldn't get in 2 touch with him, they'd turn off the belts and he'd call out. 3 4 5 Mr. Ellison received advance notice of inspectors from dispatchers while underground. And Mr. Stewart received advance notice of inspectors 6 while working underground. 7 code. 8 the crew would take measures to conceal conditions that 9 would have been cited or simply shut down at times to avoid He told you he was informed in When he received advance notice of inspectors, he and 10 citations. 11 they'd go right back to mining in the same conditions that 12 they were mining in. 13 But as he told you, after the inspectors left, And Mr. Blanchard. He told you specifically that he 14 knew the defendant was well aware of the practice of tipping 15 off the inspectors -- tipping off the sections to the 16 presence of inspectors, and even cited a specific example 17 where he had to beg off a call with the defendant to go to 18 the mine to meet mine inspectors. 19 sure with Blanchard that the miners underground had been 20 tipped off. 21 And the defendant made Now, providing advance warning of an inspector's 22 presence is illegal in and of itself. Mr. Blanchard had 23 some story from early in his career about how once the 24 inspector crossed some permit boundary that any notice given 25 after that was no longer advance. 5850 1 Mr. Taylor's probably going to beat that drum. But 2 you've heard from Mr. Lilly that he got a stern warning from 3 an MSHA inspector who heard him give advance notice. 4 then raised it with the head of security at UBB, Elbert 5 Stover. Stover said that he would raise it with the company 6 lawyers. And whether Stover did or not, Mr. Lilly never got 7 an answer, the answer in writing that he had asked for. 8 9 And, oh, by the way, Mr. Hayhurst, the inspector who Blanchard talked about, said he never said that to 10 Blanchard. 11 he would never have said that. 12 He He didn't know what he was talking about, that Well, what's charged in the conspiracy, the 13 understanding, is that advance warning was used to obstruct 14 MSHA. 15 giving of advance warnings for the purpose of hiding 16 violations of the mine laws is especially serious and is 17 really what we're talking about here. 18 The giving of advance warnings is serious, but the And without that system of tipping off miners 19 underground, you heard witness after witness tell you that 20 UBB would have received even more violations and perhaps 21 even more serious citations had the crews underground not 22 been tipped off that inspectors were on their way. 23 And you heard that there was a substantial amount of 24 work that could be done in the time that was necessary for 25 the inspectors to travel from the portal all the way to the 5851 1 working sections there at UBB, and that this whole system 2 was driven by the defendant's pressure to produce. 3 Mr. Stewart told you. When I asked him the question, 4 "In your experience did MSHA inspectors ever see the mines 5 in their true condition as you worked day in and day out?" 6 He told you, "No, not in my experience, they didn't see it 7 in its true condition, whatever area or section they wanted 8 to. 9 But they, they couldn't see it in its true condition." And I asked, "And why was that?" He told you, "Well, 10 you know, we know they was there. 11 and we would dress things up, make it pretty, make it legal 12 as we could. 13 them." We knew they were coming We couldn't get them all, but we'd get most of Now, another area where MSHA was obstructed was in the 14 15 area of dust pumps. Of course, you've heard that the 16 purpose of these dust pumps -- and there's one in evidence. 17 You can see it. 18 determine how much dirty air that miners are breathing 19 during their ordinary working conditions. The purpose of those dust pumps is to You heard from the miners that there was widespread 20 21 cheating on the samples produced by these dust pumps. 22 Ms. Pauley told you dust pumps were hung in clean intake 23 air. 24 doesn't remember wearing a dust pump properly. 25 Supervisors knew it. It was a common occurrence. Mr. Smith told you that he was instructed by She 5852 1 2 supervisors to cheat on dust pump samples. Mr. Ellison told you dust pumps weren't worn properly. 3 They were told by section bosses to wear them to produce a 4 false sample, and that dust pumps were hung in intake air to 5 register fresh air rather than the air that they breathed 6 day in and day out; that they weren't worn properly and that 7 they were told by section bosses to wear them to produce 8 this false sample. 9 Mr. Stewart told you -- and he, of course, was a 10 continuous miner operator. 11 often times would be the one wearing that dust pump. 12 told you that he'd work in less dusty areas or have someone 13 else run his continuous miner whenever he was assigned to 14 dust pump to conceal the actual amount of dust that he was 15 normally exposed to. 16 And Mr. Halstead. He was one of the people who And he Mr. Halstead, you'll recall, was 17 what's called a part 90 miner. He had indications of black 18 lung disease. 19 it had even more particular significance. So when he was assigned to wear a dust pump, 20 And you heard him tell you that Berman Cornett, the 21 safety director, the safety director at UBB, would accompany 22 him and do the work that he was supposed to do in the areas 23 that he was supposed to do it on the days that he was 24 supposed to wear the dust pump so that they would get a 25 false reading. 5853 1 You heard that the defendant was well aware of this and 2 the true conditions in the mines that those false samples 3 were to conceal. 4 by Bill Ross. 5 sampling." 6 Here it is in the memo that was expressed "Massey is plainly cheating on dust The defendant apparently wasn't concerned. You heard 7 him say in that recording, "Yeah, I'm sure that there's a 8 certain amount of things, you know, that section bosses do 9 and so forth. But the truth of the matter is black lung is 10 not an issue in the industry that's worth the effort they 11 put into it." 12 And the defendant's conspiracy to defraud, impede, 13 obstruct, and lie went beyond these two examples. 14 just two examples. These are You heard from Mr. Stewart that defendant's conspiracy 15 16 required and perpetuated a code of silence. 17 happened, I felt like the truth needed to be told about the 18 things that went on there and the reasons why that mine blew 19 up. 20 silence there. 21 They were even still scared after then to speak up. 22 said, 'I'm going to speak up. 23 truth.'" 24 25 "After what And so I, I wanted it known that they had a code of Hardly nobody would talk. They were scared. And I I'm going to tell the This was also noted by Mr. Ross. Inspectors had been openly ignored, even laughed at by Massey employees. 5854 1 The defendant's conspiracy would buy flashy things and 2 call them innovations to distract from the perpetual 3 law-breaking that he oversaw. 4 You heard him say that he meant to keep the omissions, 5 the ominous warnings of Bill Ross secret, privileged, and 6 confidential so that they wouldn't see the light of day. 7 You heard the defendant talk about his notification 8 from Mr. Ross is worse than a Charleston Gazette article; 9 talked about how horrible it would be if the truth were to 10 come out and that's why he meant to keep it privileged and 11 confidential. 12 (Recording Played) 13 14 15 MR. GOODWIN: Elizabeth. You also heard that, who that was, the vice president of safety there at Massey. But you also heard from the defendant that they really 16 didn't have someone to fill that role the way he wanted it 17 filled; that they needed someone who knew that this thing 18 was about money. 19 Chamberlin. That's what he thought about Elizabeth 20 And look at the defendant's language. 21 having a fatal, not a man or woman being killed. 22 that it would be a terrible document to be in discovery. 23 He's talking about a terrible document to come out in a 24 lawsuit. 25 He talks about He says His concern is not for a widow, children, father, or a 5855 1 mother left behind. 2 money he can save the company, how much money will end up in 3 his pockets, and how much money he could put in the pockets 4 of his "yes" men. His concern is about money, how much 5 And that's why after the UBB mine disaster defendant's 6 conspiracy lied and misled the SEC and the investing public 7 by falsely stating that, "We do not condone any violation of 8 the mine safety laws and strive to be in compliance with all 9 laws at all times." 10 So we have proven each of these elements and each of 11 the two aspects of the conspiracy. 12 persons came to a mutual understanding. 13 course, was the leader of this conspiracy and he had a whole 14 host of "yes" men to do his bidding. 15 proven that. 16 Of course, two or more Mr. Blankenship, of So we have certainly The defendant became a member of the conspiracy. 17 willfully became a member of the conspiracy. 18 not be a member of the conspiracy that he led? 19 was willfully a member of the conspiracy. 20 He How could he Of course he And one of the co-conspirators, doesn't even have to be 21 the defendant, but one of the co-conspirators in this did a 22 particular act during the time period we've charged between 23 January of 2008 and April 5th of 2010. 24 25 You've heard -- actually April 9th of 2010. You've heard time and again the numbers of violations, the number 5856 1 of actions that have been performed to further the 2 defendant's conspiracy in this. 3 So we have certainly proven all three elements as to 4 both the conspiracy to violate mine safety laws and to 5 obstruct the enforcement of those mine safety laws. 6 And that brings us to Counts Two and Three. The Court 7 will instruct you that what we had to prove with respect to 8 Count Two -- actually, I believe she already did instruct 9 you that the defendant made or caused to be made false 10 statements or false writings; the defendant acted knowingly 11 and willfully; and the false statement or writing related to 12 a material matter that was within the jurisdiction of the 13 U.S. Securities and Exchange Commission. After the UBB explosion, the defendant and his band of 14 15 "yes" men put together a shareholders statement and filed it 16 with the -- filed it on Form 8-K with the SEC. 17 it. 18 You'll see It's Exhibit 197. You heard Mr. Poma tell you that he personally reviewed 19 with the defendant the shareholders statement that was 20 attached to it; that the defendant even added in certain 21 other propaganda with respect to safety; that the 22 defendant -- and that such an important matter would not 23 have been filed without the defendant wanting it to be 24 filed. 25 So let's look at this. That the defendant acted 5857 1 knowingly and willfully. 2 the second element. 3 Absolutely. You heard what the truth was. That takes care of As a mine operator, the 4 defendant had a duty to comply with the mine safety laws. 5 You heard the defendant's conspiracy violated the mine 6 safety laws hundreds of times at UBB and was cited thousands 7 of times Massey-wide; that at least the majority of these 8 violations, but more likely most all of them, could have 9 been prevented had the defendant upheld his duty and 10 11 complied with the law. But, in fact, the defendant pressed to run coal 12 understanding that by doing so at the level he demanded did 13 and would continue to result in intentionally breaking the 14 mine safety laws by he and his co-conspirators. 15 takes care of the first element. So that 16 You heard from Mr. Torchio about he -- about how 17 immediately after the explosion there were many reports and 18 speculation that there had been intentional law-breaking on 19 defendant's watch at Massey, and that Massey's stock price 20 plummeted, losing hundreds of millions of dollars in value 21 just hours, a matter of two days after the explosion. 22 Mr. Torchio told you that after the false shareholders 23 statement was filed, the stock price leveled off. 24 you'll see that up there. 25 stock price basically leveled off. And Where the second arrow is, the That there was no 5858 1 statistically significant change in price in the days after 2 the filing showing that the defendant's lies worked. 3 But then when it became apparent that there was enough 4 information to spark a federal investigation by my office 5 and the FBI into just the possibility that there was 6 intentional law-breaking at Massey's mines, the stock price 7 went down on April 30th again, and again in May. 8 9 This shows that the lies and the cover-ups by the defendant and his "yes" men were certainly material, that 10 they were important to investors, and they were important, I 11 know you would find them important to you if you were an 12 investor. 13 And certainly this occurred within a matter -- within 14 the jurisdiction of the Securities and Exchange Commission. 15 You saw the filing, the 8-K filing. 16 the SEC itself followed up shortly after with a letter to 17 Massey asking for more information about safety practices. 18 So the third and final count of the indictment is 19 related to Count Two, but it's a little bit different. 20 Court will instruct you that we have had to prove the 21 following: 22 And you even saw that The That the defendant made or caused to be made an untrue 23 statement of material fact or omitted material fact 24 necessary to keep the statement from being misleading; the 25 defendant made use of or caused the use of any means or 5859 1 instrumentalities of interstate commerce; and the defendant 2 acted willfully, knowingly, and with the intent to defraud. 3 Again, we have proven beyond a reasonable doubt that 4 the statement made by the defendant and his co-conspirators 5 that, "We do not condone any violation of the mine safety 6 laws and strive to be in compliance with all laws at all 7 times," was totally and completely false. 8 knew it. 9 And the defendant But this count can also be violated by defendant's 10 failure to disclose facts necessary to keep that statement 11 from being misleading. 12 tried to sell you on this idea that the statement was 13 literally true; that those statements actually if you looked 14 at them were literally true. 15 In other words, the defense has But even if you buy that, you have to admit that at the 16 very least the statement that, "We do not condone any 17 violation of mine safety laws and strive to be in compliance 18 with all laws at all times," is misleading without knowing 19 all the facts that you now know; facts that the defendant 20 knew at the time that he caused that statement to be made; 21 facts that you now know through the Ross memo and all of the 22 evidence that you've heard in this case are lies. 23 So we've proven beyond a reasonable doubt the first 24 element that the defendant made an untrue statement of 25 material fact and omitted material facts necessary to keep 5860 1 the statement from being misleading. 2 You only have to find one. 3 We've proven both. Second, we had to show that the defendant made use of 4 or caused the use of a means or instrumentality of 5 interstate commerce. 6 You'll remember that Ms. Hanretty and Mr. Poma both 7 told you about the statements and how they went out. This 8 is from the 8-K filing. It 9 went out by means of e-mail, internet posting, and 10 11 That statement is in there. ultimately to the SEC. And you heard from Ms. Hanretty that this statement 12 also was contained in a press release that was forwarded to 13 the public in general, and that she personally received the 14 approval to push that out. 15 okay, Don." 16 proven beyond a reasonable doubt the second element. 17 You'll see right there, "Karen, She told you about that. So certainly we've And, finally, we have proven beyond a reasonable doubt 18 that the defendant acted with the intent to defraud in 19 putting this statement and keeping other important facts 20 secret, privileged, and confidential. 21 After all, he had powerful motive to do so. He lost 22 $3 million in stock value in a matter of hours. His 23 conspiracy faced unprecedented scrutiny if the people knew 24 the truth. 25 worst, for him he would be facing jail time. And at best, more money would be lost. But at 5861 1 2 So we've certainly proven each of the three elements of Count Three, and Count Three as a whole. 3 Now, the defense has touted this so-called Hazard 4 Elimination Program that they say proves that the defendant 5 was concerned about safety. 6 hear about it a lot more here in a few minutes. 7 And I'm sure you're going to But you heard miner after miner tell you. They said 8 that they had never heard of such a program; that they 9 received no more miners or resources to keep up with the 10 mine safety laws; that production quotas always went up, 11 they never went down regardless of how many violations were 12 being committed at UBB. 13 you heard it from Mr. Stewart. 14 fear, intimidation, and propaganda. 15 And you heard the defendant in his own words talk about the 16 program. 17 18 19 20 And this is not surprising because There was an element of That didn't change. (Recording Played) MR. GOODWIN: "Give us a chance to do some propaganda there." Now, I'm going to sit down and the defense is going to 21 have an opportunity to talk to you. 22 talking to you, every time you hear the defendant was a 23 safety innovator, you should be thinking propaganda. 24 25 And while they're Every time you hear Hazard Elimination, you should be thinking propaganda. 5862 1 Every time you hear a trite slogan like "Kill the 2 Spider" or S-1 P-2, you should be thinking propaganda. 3 And every time you hear "Massey," you should be 4 thinking defendant's criminal conspiracy to break the law 5 and run coal. 6 After you retire to deliberate, you'll be given a 7 verdict form. 8 check off certain either "guilty" or "not guilty." 9 And on that verdict form you'll be asked to I would submit to you that we have proven and, 10 therefore, you should find the defendant guilty of Count One 11 for both conspiracy, conspiring to willfully violate 12 mandatory health and safety standards and conspiring to 13 defraud MSHA; that you should also find the defendant of 14 Count Two, guilty of Count Two for making false statements 15 to the SEC; and, finally, you should find the defendant 16 guilty as charged with Count Three involving securities 17 fraud. 18 Thank you all so very much for your attention over this 19 last however long it's been, but also throughout the last 20 several weeks of testimony. 21 and we certainly appreciate it. 22 All of us appreciate the service that you have given through 23 this. 24 doing here. 25 You've been incredibly patient All of us appreciate it. I, I can't thank you enough for, for what you're So with that, Your Honor. 5863 1 2 THE COURT: Mr. Taylor. 3 MR. TAYLOR: 4 THE COURT: 5 Yes, sir. May we approach, Your Honor? Yes, sir. (Bench conference on the record) 6 MR. TAYLOR: 7 MR. DELINSKY: 8 9 10 11 12 13 14 15 THE COURT: 16 17 18 19 20 21 22 23 24 25 MR. DELINSKY: SE64 SE65 SE66 5867 1 2 3 4 5 6 7 8 9 10 11 12 THE COURT: 13 14 MR. DELINSKY: 15 THE COURT: 16 17 MR. TAYLOR: 18 THE COURT: 19 20 21 MR. DELINSKY: 22 MR. WALLS: 23 24 25 THE COURT: 5868 1 2 3 MR. TAYLOR: 4 THE COURT: 5 6 7 8 MR. WALLS: 9 MR. DELINSKY: 10 11 (Bench conference concluded) THE COURT: Ladies and gentlemen, so that I do not 12 interrupt the closing argument that's about to begin, I'm 13 going to give you a 10-minute recess. 14 not discuss this case among yourselves or permit anyone to 15 discuss it with you or in your presence. 16 your jury lounge at 10 minutes till the hour. 17 in recess for your purposes. 18 19 20 21 22 23 24 25 (Recess taken at 11:39 a.m.) While you're out, do And please be in We'll stand 5869 1 (Jury returned into the courtroom at 11:51 a.m.) 2 (Trial resumed at 11:52 a.m.) 3 THE COURT: 4 MR. TAYLOR: 5 THE COURT: 6 MR. TAYLOR: 7 8 9 10 11 Mr. Taylor. May it please the Court. Yes, sir. Ladies and gentlemen, we too want to thank you for your patience and your attention. Before I begin, I'd like to ask you to look with me at six slides of testimony and one exhibit. This is testimony of Mr. Blanchard in which I asked: "This indictment alleges that Mr. Blankenship committed 12 a conspiracy to commit willful violations of the mine 13 regulations. 14 commit willful violations of the mine safety regulations?" Did you conspire with Mr. Blankenship to 15 Answer: 16 "He ordered you and all the group presidents to reduce 17 "No, sir." the number of citations, didn't he?" 18 "Yes, sir." 19 "Mr. Blankenship is also charged with a conspiracy to 20 defraud MSHA and the practice -- I want to ask you, did you 21 participate or conspire with Mr. Blankenship to defraud MSHA 22 inspectors?" 23 Answer: 24 Question: 25 "No, sir." "Did you ever tell Mr. Blankenship that anyone was falsifying dust samples at UBB or anywhere else?" 5870 1 "No, sir." 2 "Was the falsification of dust samples, if it occurred 3 at UBB, a product of a conspiracy between you and Mr. 4 Blankenship to cause citations at that mine?" 5 "No, sir." 6 "Did anything Mr. Blankenship did cause dust samples to 7 be falsified at UBB or anywhere else to your knowledge?" 8 "No, sir." 9 "So the record is clear, Mr. Blanchard, there was no 10 agreement between you and Mr. Blankenship to willfully 11 violate the federal mine safety laws?" 12 Answer: 13 "There was no unspoken agreement or understanding 14 between you and Mr. Blankenship to violate the mine safety 15 laws?" "That's correct." 16 Answer: "That's correct." 17 Question: "Your understanding was that Mr. Blankenship 18 did not want UBB to have citations for violations of the 19 mine safety laws?" 20 Answer: 21 "And you understood that he wanted UBB to eliminate and 22 "That is also correct." reduce the hazards and reduce violations?" 23 Answer: 24 "And he never sent you a message or even implied that 25 "That's correct." he wanted UBB to defraud MSHA by concealing conditions at 5871 1 UBB, did he?" 2 "No, sir." 3 This is a quote from Mr. Ross: "Mr. Blankenship -- you 4 know Mr. Blankenship didn't agree with you that hiring more 5 miners was the solution to reducing citations. 6 that?" 7 Answer: 8 Question: 9 You know "That's okay." "And that didn't mean he wanted people to violate the law, did it?" 10 Answer: 11 "And he never suggested or implied that he wanted 12 Massey mines or anybody in them to violate the law, did he?" "No, it did not." 13 "No, he did not." 14 This is the exhibit I wanted to show you. It's from 15 Defense Exhibit, memo from Mr. Blankenship dated 16 January 6th, 2010. 17 passages of transcript or this exhibit. I couldn't say it better than those 18 This is a criminal case, ladies and gentlemen. 19 Berger has told you that it's the Government's burden to 20 prove each and every element of the crimes charged. 21 defense has no burden. 22 Judge The She has told you that you cannot convict Mr. 23 Blankenship unless you are convinced beyond a reasonable 24 doubt that the Government has proved each and every element 25 of the crimes charged. It's the highest burden imposed in 5872 1 any kind of case in this country. 2 criminal cases because only in criminal cases are the forces 3 of the Government so organized and amassed against an 4 individual. We reserve it for 5 I'm beginning this discussion this way, ladies and 6 gentlemen, because what I'm about to do is show you why the 7 Government hasn't proved its case. 8 lawyerly argument. 9 all hold. 10 It's not a technical It goes to the most basic values that we In our country the police and the prosecutor don't 11 decide who's guilty. 12 people; not lawyers, not elected officials, not even judges, 13 to you, the jury. 14 final authority on whether the Government has proved Don 15 Blankenship guilty of these charges beyond a reasonable 16 doubt. 17 We entrust that responsibility to the You're the final authority. You're the I'm going to talk to you over the next 90 minutes or so 18 about why he's not guilty and why your verdict must say so. 19 As I told you in opening, you might be surprised where 20 the evidence in this case, the truth would take you. I 21 don't know if you were surprised or not by what the 22 Government did not prove. 23 evidence that there is and the evidence that there isn't. But let me talk about the 24 There's no proof that Don Blankenship agreed with 25 anyone else, with others, unnamed so far, to commit willful 5873 1 violations of MSHA regulations at the Upper Big Branch mine. 2 This willful violation thing is important. 3 citations that you've heard about are not criminal. 4 not criminal violations. 5 that he conspired with others to commit criminal violations, 6 willful violations. The They're The Government promised you proof Where's the proof? 7 There's no proof that he came up with a plan to have 8 guards and dispatchers call their friends underground and 9 tell them that inspectors were coming or, for that matter, 10 to tell them that the boss was coming; no proof that he 11 wanted anything concealed or that he ever instructed anybody 12 to do that. 13 The total evidence, the total evidence on this subject 14 is a question in a phone call. 15 there?" 16 beyond a reasonable doubt that Mr. Blankenship organized and 17 orchestrated a conspiracy to defraud in this mine. 18 "Does the crew know they're From that the Government wants you to believe There's no proof, no proof that Mr. Blankenship caused 19 Massey to issue a false statement in order to fool 20 shareholders or the Securities and Exchange Commission. 21 What the Government seems to be counting on in this 22 case, ladies and gentlemen, is what I call the maybe 23 approach. 24 With seven weeks of trial, maybe he's guilty. 25 Because he talked to his girlfriend about his stock 5874 1 options and the Government played the recording to you, 2 maybe he's guilty. 3 Because he was a tough boss, because he demanded a lot 4 of people, because he demanded that they follow his orders, 5 maybe he's guilty of this conspiracy. 6 Because he believed black lung disease was not as 7 important as other people thought it was, maybe he's guilty 8 of this conspiracy. 9 Because he was insulting and rude, maybe he's guilty. 10 Because he said people have to understand that their 11 job here is to make money, maybe he's guilty. 12 Because he made a lot of money, maybe he's guilty. 13 Because Massey made a lot of money, maybe he's guilty. 14 Because he wrote "denied for now" on an application for 15 16 17 18 an airshaft in 2008, maybe he's guilty of a conspiracy. Because a pod duster was old and needed repaired, a new one didn't get bought, maybe he's guilty. Because UBB did, in fact, get a lot of citations, 19 because maybe it wasn't as well managed as it could have 20 been, maybe he's guilty. 21 22 23 Because he was in charge of the company when there was a terrible accident, maybe he's guilty. In this country we don't convict people, rich or poor, 24 on the basis of "maybes." These crimes that he's charged 25 with require criminal intent, real specific intent, requires 5875 1 2 proof of two kinds of intent as Judge Berger told you. Not testimony like, "I think that's what he thought," 3 or, "I think there was an understanding." 4 of what he intended, proof that he intended to be in a 5 conspiracy, that he was part of an agreement, and proof that 6 he intended that the conspiracy would commit willful 7 violations of MSHA regulations at the UBB mine. It requires proof 8 You would think in a criminal case which has been under 9 investigation for over five years, a case of this magnitude, 10 there would be a witness who testifies that the defendant 11 committed a crime or said he was going to commit a crime or 12 ordered someone to commit a crime. 13 The Government called 27 witnesses in this case. 14 you want to know how many of them ever met Don Blankenship? 15 Seven. 16 Blankenship committed a crime or told him or her to commit a 17 crime? 18 of that. 19 Do Of those seven, did any of them testify that Mr. That's proof. That's evidence. But there isn't any I showed you what Mr. Blanchard said about him and I 20 showed you what Mr. Ross said about him. 21 Lafferty, the FBI agent who investigated this case for five 22 years, admitted that his investigation revealed that Mr. 23 Blankenship said he wanted to reduce citations. 24 25 And even Agent Now, what can you say then about what the Government did and did not prove in this case, this case about willful 5876 1 citations? 2 Was there testimony from an MSHA inspector that he 3 observed a willful violation of mine regulations in the 4 Upper Big Branch mine? 5 6 7 8 9 Was there testimony by an MSHA inspector or official that the agency was defrauded at the UBB mine? Was there testimony by a shareholder that he or she was deceived or defrauded by a Form 8-K? Was there testimony from anybody at the Securities and 10 Exchange Commission that their jobs were affected, they were 11 deceived? 12 That's proof. Think about this, ladies and gentlemen. It's truly 13 astonishing. 14 violations of conduct that occurred in a mine in which Don 15 Blankenship was not present during this indictment period, 16 no MSHA inspector testifies that he observed a willful 17 violation or even any violation. 18 In a criminal case involving willful In fact, there are no witnesses to any of the citations 19 that you've been hearing so much about. 20 told you you cannot consider those reports for their truth, 21 that it actually happened. 22 I know that's confusing. And the Judge has It's confusing to me. But 23 what it means is that the Government has offered no proof 24 that these citations actually occurred. 25 And think about that. The Government charged that 5877 1 these citations were written in this mine and the proof 2 comes from a data analyst who retrieves records from a data 3 cite at MSHA headquarters in Arlington, Virginia, near 4 Washington, D.C. 5 to conclude that Don Blankenship's a felon? 6 which came here with a data analyst which you can't consider 7 to prove the citations even happened? 8 9 And on the basis of this, you're supposed These records What you should try to figure out is what evidence can you consider to prove the violations that the Government has 10 alleged in this indictment. 11 is a conspiracy to commit willful violations. 12 Most important, remember, this These citations that you've been hearing about are not 13 crimes. 14 less serious. They are not crimes. Some are serious. Some are But none of them is said to be willful. You can take all this paper to the jury room. 15 And 16 there's a lot of it. You can take all of this paper and 17 look as long as you want and you will not find the word 18 "willful" in any of those citations or in any of the other 19 evidence that the Government has presented. You know, when you show -- when you get a speeding 20 21 ticket, the policeman has to show up. 22 they don't, you can't be convicted. We all know that. Ladies and gentlemen, what do we have here? 23 If Well, we 24 have Mr. Childress, a nice young fellow, pretty good at his 25 job. He's never been near a coal mine. And he brings us 5878 1 2 data from MSHA records. He didn't even bring the citations. He brought us what 3 he had obtained from a database in a computer in Arlington, 4 Virginia, hundreds of miles away from the Upper Big Branch 5 mine. 6 prove anything that actually happened. 7 And the Judge tells us that it's not admissible to So it's a strange way of going about proving a criminal 8 case. 9 Mr. Childress brought with him and that we talked about, And those printouts about the 14 citations that 10 those are not admissible to prove that they actually 11 happened either. 12 Now, I know that sounds confusing. I know it sounds 13 confusing when you're told that this piece of paper that 14 you're being asked to look at, you can't consider it to 15 prove what's there. 16 witnesses to what's there. 17 has brought you to prove that Don Blankenship is guilty of 18 this conspiracy. 19 But, you know, there's, there's no The paper is what the Government You know, then there's the SEC filings. How much time 20 did we spend looking at mountains of paper that Massey 21 Energy Company filed with the Securities and Exchange 22 Commission? 23 course, there's no witness who testified that he wrote it or 24 nobody from the SEC who said they read it. 25 And what are you supposed to make of it? Of The purpose of it was so they could get to you the 5879 1 evidence of how much cash the company had, how much money it 2 made, how much money Mr. Blankenship made. 3 Maybe you'll convict Mr. Blankenship if you see how 4 much money he made and how much money Massey made, how much 5 stock people owned. 6 You know, if it's a fact that, that he made a lot of 7 money and he worked for a company that made a lot of money, 8 if that means he's guilty, I'm wasting your time standing 9 here. 10 Mounds of paper from Massey, the daily violation 11 reports, the bylaws to tell you that Mr. Blankenship had 12 broad power, and the minutes of the board of directors, the 13 compensation committee to show you how much money he made. 14 No human being who attended any meeting that you've 15 been given the minutes of is here to testify. 16 interesting information in some of those documents and I'll 17 talk about it with you in a few minutes. 18 The daily violation reports. There's some We can add that, add them 19 to the pile of paper. They fit in those five binders there. 20 I'll tell you they're admissible so that you can determine 21 their implication for Mr. Blankenship's state of mind and 22 intent. And I'll tell you what they prove about his intent. 23 They prove that he demanded that the people who were in 24 the mine report to him on the violations that were occurring 25 there. In other words, in the middle of this so-called 5880 1 conspiracy, he demanded that the people working for him 2 compile the evidence of the conspiracy, compile the records 3 of the crimes that were being committed every day and sent 4 them to 20 or so people including Bill Ross. 5 Even Mr. Ross testified it would be strange for a man 6 engaged in a criminal conspiracy to be having people keep 7 records on paper of the crimes that he's allegedly 8 committing. 9 daily violation reports prove that Mr. Blankenship was 10 11 It's absurd. It's absurd to suggest that those engaged in a conspiracy to commit violations and hide them. What they prove is exactly the opposite. They prove 12 what Mr. Poma said; that Mr. Blankenship was beating on 13 people about citations. 14 Elimination committee, the company was determined to reduce 15 the violations. 16 17 18 As Mr. Adkins said at the Hazard Let's talk about some of the other people who did testify. Mr. Torchio from Rochester came in here and talked 19 about T factors and event analyses. 20 coal mining than anybody in this room, but he didn't -- even 21 he didn't come here and say the statement to shareholders 22 was false, did he. 23 done for the purpose of deceiving anybody. 24 whether it was true or not. 25 He knows less about He didn't come here and say that it was He did not know He, he had no opinion about whether it was true. 5881 1 That's a long way from proof that Donald Blankenship caused 2 Massey to issue a false or misleading statement to the SEC. 3 As Mr. Torchio said, it's clearly a response to media 4 reports about MSHA violations at UBB. 5 The first line of the paragraph -- and we'll look at it in a 6 minute -- says that the media has reported on citations at 7 UBB and has taken them out of context. 8 statement was issued. 9 That's what it says. That's why that But I didn't hear Mr. Torchio or anybody else talk 10 about shareholders being defrauded or that the purpose of 11 writing that document, which is what the statute requires, 12 is the intent to defraud shareholders. 13 Who else, who else did the Government bring us? Mr. 14 Hughart from his halfway house; Mr. Hughart who found 15 himself in federal prison because he stole hundreds of 16 thousands of dollars from Massey in four separate ways. 17 He got kickbacks from his suppliers. In other words, 18 he bought things for Massey at prices that were higher than 19 they were worth, and the people who sold them to him kicked 20 back the money to him. 21 He sold company equipment to people and put the money 22 in his pocket. He charged the mine's account for loads of 23 gravel that went to his own house. 24 to anybody who wanted to drive a truck up and pay for it. 25 He just forgot to give the money to Massey. And he sold Massey coal 5882 1 He then forgets to report the stolen money on his tax 2 returns and lies to federal agents about his crimes. 3 the day before he's coming in to make his deal, he gets 4 busted for spending $4,000 on 120 pain pills he was going to 5 use and distribute. 6 And Mr. Hughart is someone who chose to plead guilty to 7 conspiracy to violate mine safety laws to avoid being 8 prosecuted for mail fraud, tax evasion, and possession of 9 controlled substances. 10 Maybe Mr. Ruby -- Mr. Ruby, who I guess is going to 11 follow me, can explain to you why Mr. Hughart should 12 convince you that Don Blanchard -- Don Blankenship is a 13 criminal. 14 but I do sometimes. 15 I promised Mr. Blankenship I wouldn't do that, Mr. Hughart not only doesn't provide any evidence that 16 Mr. Blankenship is a criminal. 17 arrival notice at mines has been going on since he started 18 working in the mines at the age of 19. 19 meeting of Massey mine presidents that Mr. Blankenship 20 didn't attend, somebody said the practice was legal. 21 In fact, what he said was And he says at a In fact, when Mr. Ruby tried to ask Mr. Hughart whether 22 the high officials at Massey like Mr. Adkins, Mr. Clemens, 23 and Mr. Snelling were involved in safety, what did he say? 24 He was sure that if they saw something at a mine, they would 25 get it fixed. 5883 1 Did David Hughart contribute any evidence to whether 2 Donald Blankenship conspired to commit willful violations at 3 the Upper Big Branch or to cover them up or to defraud MSHA? 4 Mr. Blanchard. Mr. Blanchard is all by himself one big 5 reasonable doubt. 6 spent at this investigation, four and half years before they 7 got an indictment on Mr. Blankenship. 8 signed Mr. Blanchard up. 9 You remember how long the Government Two days after, they Mr. Blanchard told you that the Government threatened 10 him with prosecution if he didn't testify against Mr. 11 Blankenship. 12 didn't think Mr. Blankenship broke any laws, but that the 13 prosecution gave him two bad choices: 14 Blankenship or be prosecuted. 15 He told you that he didn't break any laws, Testify against Mr. You can't blame him for trying not to be prosecuted. 16 But he didn't have much stomach for it. 17 he'd committed a crime or that Mr. Blankenship had committed 18 a crime. 19 violations or to hide them from MSHA. 20 took him through the evidence which shows that they didn't. 21 I told you in opening that it might take us a while to 22 put on the evidence that indicated that Massey did not want 23 citations. 24 with the Government's key witness. 25 He didn't believe He didn't believe they conspired to commit any So for four days we I didn't realize that we were going to do it When Mr. Blanchard is all done, he established at least 5884 1 2 17 things. First, Mr. Blankenship demanded that the Massey mines 3 reduce citations. 4 reduce citations. He demanded that the resource groups 5 When Performance Coal started reporting on its 6 citations, Mr. Adkins started demanding explanations from 7 Mr. Blanchard about the citations. 8 9 10 11 The company put high-ranking people to work on reducing citations. The company assigned a former MSHA inspector to do nothing but work on reducing citations. Performance Coal disciplined people at UBB for 12 citations. 13 Perhaps Mr. Ruby can explain that to us. 14 superintendent at UBB was disciplined for violating MSHA 15 regulations. 16 I don't know how that equates to "yes" men. But the mine The mine went from two sections in 2008 to five 17 sections in 2009. It grew. 18 nearly every day. He established that the problems at the 19 UBB in the fall of 2009 were caused by MSHA's insistence on 20 a ventilation plan that had never been imposed before in 21 Central App. 22 And inspectors were there They were forced to do something that had never been 23 required; take the air that was going up the beltline across 24 the face and make it go backwards. 25 They made a company put less ventilation on the 5885 1 longwall than the company wanted to put on the longwall by 2 half. 3 problems. 4 And that many citations resulted from this set of He also established Mr. Blankenship wasn't involved in 5 any of this. 6 arguments with MSHA or anything else. 7 something about why there were citations at UBB in 2009. 8 He said Mr. Blankenship never told him to violate a 9 10 11 12 He wasn't involved in the vent plan or in the But that tells you regulation and that he never told Mr. Blankenship that the Performance Coal mines were understaffed. He never said to Mr. Blankenship, "I need more people to run safe." 13 He never told Mr. Blankenship that the proposed 14 airshaft was necessary to safely ventilate the mine. 15 you know, the, the airshaft was not required by the vent 16 plan, was not required by MSHA. 17 safety of the mine. 18 19 20 And as And it had no effect on the And, by the way, the next year was when they put in the big Bandytown fan. Now, that's an airshaft. Of all the nasty notes Mr. Blanchard received from Mr. 21 Blankenship, he did not understand any of them to tell him 22 to put production over safety, not a one. 23 There's not a piece of testimony in this case in which 24 Donald Blankenship said to Chris Blanchard or anybody else, 25 "I want you to run no matter whether you violate a 5886 1 regulation or not," or words to that effect. 2 evidence. 3 That's That would be evidence. Mr. Ruby's response was to remind Mr. Blanchard of the 4 penalties for perjury, and then asked him if he knew what 5 the definition of "conspiracy" was. 6 And the Government's response today is, well, you have 7 to consider that Chris Blanchard really didn't know what a 8 conspiracy was when he answered the question that he wasn't 9 guilty of one. Seriously. This guy's an engineer, speaks 10 the English language better than most of us. 11 Government's explanation for his saying that he was not 12 involved in a conspiracy is he didn't really understand what 13 a conspiracy was? 14 And the Here are some of the things that Mr. Blanchard did say. 15 And I want to go through them with you because it's 16 important. 17 "Is it fair to say there's pressure coming from Adkins 18 and Blankenship to you to explain why the mine's getting 19 citations?" 20 "Yes, sir." 21 "And why -- did you have an understanding as to why 22 23 24 25 they were putting this pressure on you?" Answer: "Because they wanted the hazards eliminated and the violations reduced." Question: "Now, were any of these citations that we've 5887 1 just looked at caused by a conspiracy between you and Mr. 2 Blankenship?" 3 "No, sir." 4 Question: 5 "You testified you had an understanding that a certain number of citations were inevitable; right?" 6 Answer: 7 "But it was, no matter what, impossible to prevent a 8 9 10 "Yes, sir." certain amount of citations?" "Yes, sir." Question: "Because there's almost no mine in the 11 country that can avoid violating these safety regulations at 12 some point in time?" 13 "Yes, sir. 14 15 It is -- too many of the citations are too subjective." Question: "Did you and he have an understanding or a 16 wink and a nod that there would be violations of the mine 17 safety regulations?" 18 Answer: 19 Question: 20 "We didn't have an agreement or an understanding. 21 22 23 "That we -- that there would be violations?" "That there would be." I think we both realized that violations would be written." Question: "And that for reasons we've discussed, violations are inevitable?" 24 "Yes, sir." 25 "Did you have an unwritten understanding that you 5888 1 wanted violations?" 2 "No, sir." 3 "Or an unwritten understanding that he instructed you 4 or wanted you to have violations?" 5 "No, sir." 6 Question: 7 8 9 "And that's the understanding you're talking about?" Remember the Government's fondness for using the word "understanding"? 10 "That's the understanding you're talking about, isn't 11 it, your understanding that the citations are inevitable?" 12 "Yes, sir." 13 Question: "It was not an understanding that you wanted 14 to cause the citations or that Mr. Blankenship was telling 15 you to cause willful citations?" 16 Answer: "That's correct, sir." 17 Question: "Your understanding was that no matter what 18 happened in these mines, there would be a certain number of 19 citations which could not be avoided?" 20 Answer: "Yes, sir." 21 Question: "You know some people recommended that 22 hiring more miners would reduce citations. 23 that?" You've heard 24 Answer: "Yes, sir." 25 "Do you also know that there are mines that employed 5889 1 more miners and produced less coal which got more citations 2 than Upper Big Branch?" 3 "Yes, sir." 4 "And you know Mr. Blankenship didn't believe that 5 hiring more miners was the solution to reducing citations?" 6 Answer: 7 Then Judge Berger said, "Just a second. "No, it's not the only solution." I want you to 8 answer the question. 9 Blankenship didn't believe that hiring more was the answer. 10 The question was, do you know that Mr. I don't think your answer was responsive." 11 "Would you ask the question again?" he says. 12 "Mr. Blankenship didn't believe that simply hiring more 13 And I do. miners was the solution to reducing safety citations?" 14 "That's what I believe he thought, sir, yes, sir." 15 This is Defense Exhibit 93. This is Mr. Blanchard's 16 note on a message from Elizabeth Chamberlin that's dated 17 January 2, '08, in which he's telling people, "Guys, make 18 sure we comply with Elizabeth's requests. 19 let's just not get violations." 20 This is Defense Exhibit 238. Most important, Mr. Blanchard is saying 21 to Mr. Cornett and Mr. Thompson in August of 2009, "I have 22 asked nicely too many times and, so, consider this an order 23 rather than a request. 24 offices at the UBB mine office no later than August 17th. 25 There is adequate office space above Cantly for both of I want both of you moved into 5890 1 you." 2 3 You remember that he's ordering Cornett and Thompson to both physically move to UBB to help reduce the citations. 4 This is from Mr. Blanchard to Mr. Blankenship and 5 others, August 24, 2009. 6 accidents in July. 7 safety director for Performance has moved his office to the 8 mine site in order to be available in the coal mine on a 9 daily basis and to reduce both accidents and violations." 10 "Performance had no lost time Year-to-date NFDL fell to 7.33. The Now, ladies and gentlemen, if this is, if this is all a 11 sham, I ask you why is Chris Blanchard writing to Mr. 12 Blankenship in August of 2009 telling him in no uncertain 13 terms that the safety director has moved to UBB to reduce 14 both accidents and violations? Does Mr. Blanchard think that Mr. Blankenship wants 15 16 violations reduced, or does he think he just doesn't care? 17 Why is he telling him that he's moved these two people to 18 UBB? 19 thinks Mr. Blankenship wants to know what he's doing to 20 reduce the citations at UBB. 21 Because he thinks Mr. Blankenship wants to know. He Exhibit 249, September 29, 2009, from Blanchard to 22 Jamie Ferguson. "Have Everett update Gary's list daily and 23 send to Gary and me. 24 their jobs if they keep disregarding the help that is being 25 given." Folks at UBB are going to start losing Sounds like somebody who's serious. 5891 1 September 30, 2009, Chris Blanchard to Berman Cornett 2 and Jim Walker. 3 this is what I expect. 4 violations/hazards eliminated." 5 "If my desires were not explained properly, Every day underground. I expect November 20, 2009, Mr. Blanchard to Gary Frampton, head 6 of the Hazard Elimination committee. 7 Ferguson. 8 Make sure that everyone understands the point isn't for Gary 9 F. to point out after the fact. "Not sure I understand how we can run so poorly. 10 list. 11 is not to be found again." 12 "Not --" and Jamie Bad enough to have this It is all to be corrected and the same ridiculousness November 8th -- November 6th, 2009, Chris Blanchard to 13 a bunch of other people. 14 He wants them to report to him on the number of inspection 15 days, number of violations, how to eliminate the hazard and 16 the discipline warranted. He says, "Violation elimination." January 4, 2010, notes on the president's call. 17 18 Remember, we talked about that. 19 "Don't confuse work with the right thing to do. 20 right thing, the work doesn't matter. 21 Cut the violations by 15 percent. President to review all 22 violations. Violations to be new part 23 of bonus." Put goals out there. If it's the Cut by 15 percent. The second part of this is what I really wanted you to 24 25 Mr. Blanchard's notes. see. The message is, "If the men are more afraid of 5892 1 inspectors than you, then you are not making a big enough 2 deal of Hazard Eliminations, P-2 and S-1." 3 Question: "Mr. Blanchard, 2009 was a year in which 4 Massey Energy was focused on citations and reduction in a 5 way that it never had before, wasn't it?" 6 "Yes, sir." 7 "You understood that Mr. Blankenship wanted the company 8 9 10 11 and all of its subsidiaries to reduce citations?" "Yes, sir." "He had given instructions that the citations or the violations be reported by each mine?" 12 "Yes, sir." 13 "And he wanted people to explain the reasons for them 14 and take responsibility?" 15 "Yes, sir." 16 "And take steps to cut them?" 17 "Yes, sir." 18 That's his testimony. 19 Question: 20 "Did Mr. Blankenship cause the conditions in the mine that resulted in those citations?" 21 "No, sir." 22 "Did he ever instruct you to violate the ventilation 23 plan that was in effect or the ventilation itself?" 24 "No, sir." 25 "Did you and others working with you try to get the air 5893 1 flow in the mine during that period to comply with the 2 ventilation plan you had submitted?" 3 Answer: 4 "And with the requirements that MSHA imposed upon the 5 "Yes, sir." mine?" 6 "Yes, sir." 7 Can we go to Number 17, Joe? 8 Question: 9 Blanchard. "And do you know --" this is still Mr. "And do you know what percentage of a reduction 10 in citations there was between the fourth quarter of 2009 11 and the third quarter?" 12 Answer: "I'd have to see that number again to do it 13 exactly, but I think it was about a 50 percent reduction 14 from actual third quarter to actual fourth quarter." 15 Thank you, Joe. 16 Finally, I want to ask you to pay attention to what Mr. 17 Blanchard actually said as compared to what the Government 18 says he said, two examples. 19 Remember Mr. Blanchard talking about calling Mr. 20 Blankenship to tell him he couldn't attend a meeting because 21 inspectors were at the mine? 22 because he had to be at the mine. 23 him one question. 24 That's the question. 25 And Mr. -- and he couldn't go And Mr. Blankenship asked "Does the crew know that they are there?" I asked him if there was anymore to the conversation 5894 1 2 and he said, "No." Later Mr. Ruby referred to this as a conversation in 3 which Mr. Blankenship instructed Mr. Blanchard to notify 4 miners about the presence of inspectors. 5 Can we look at the two slides on this conversation? 6 Starting with the middle, "And you called Mr. 7 Blankenship to tell him that you couldn't either attend the 8 phone call or the conference?" 9 10 Answer: "Correct." "And he said, I think you said, 'Does the crew know 11 they're there?'" 12 Answer: 13 And I said, "Is that as close of a quote as you could 14 "Yes, sir." come?" 15 "Yes, sir." 16 "And was that the sum total of the discussion?" 17 "Yes, sir." 18 "So the practice of notifying miners that inspectors 19 were on the premises was not a conspiracy that you and Mr. 20 Blankenship dreamed up to defraud MSHA, was it?" 21 "No, sir." 22 "Does the crew know they're there?" That is the sum 23 total, the evidence upon which the Government wants you to 24 convict Don Blankenship beyond a reasonable doubt of 25 participating in a conspiracy to defraud MSHA. 5895 1 Another example. Remember there was water in a bleeder 2 and Mr. Blanchard reported to Mr. Blankenship that he 3 couldn't run. 4 MSHA run your mines." 5 And Mr. Blankenship said, "You're letting Mr. Ruby later described this as when Mr. Blankenship 6 ordered Mr. Blanchard to run illegally. 7 happened, is it. 8 Blankenship telling him to run illegally, and he did not 9 run. 10 11 12 But that's not what Mr. Blanchard didn't understand Mr. Here's the full explanation from the question and answer about that incident. Question: "And there was a point in time in which you 13 talked to Mr. Blankenship about not running because of water 14 in the bleeders. 15 "Yes, sir." 16 "And he said words to the effect of don't let MSHA run 17 18 19 Do you remember that?" your mines; right?" "Well, I think he said that I was letting them run my mines." 20 Question: "Did you let MSHA run your mines?" 21 "No, sir." 22 "And did you run illegally?" 23 "No, sir." 24 "During that period at no time did you run that mine 25 illegally or in violation of those regulations, did you?" 5896 1 "No, sir." 2 "Mr. Blankenship at one point suggested to you that you 3 should have somebody walk the bleeders every day; right?" 4 "Yes, sir." 5 "And MSHA only required that you walk the bleeders once 6 a week; right?" 7 "Yes, sir." 8 "And, so, during that period he was also telling you 9 you should do more than MSHA required in terms of walking 10 the bleeders?" 11 "That's correct." 12 Ladies and gentlemen, make your decision in this case 13 on the basis of the actual evidence, not on what the lawyers 14 say it is. 15 The Government contends that Mr. Blankenship put so 16 much pressure on Mr. Blanchard and others that they 17 interpreted him to mean run illegally. 18 Government's position, of course, because there's nothing in 19 this record that indicates Mr. Blankenship ever said 20 anything to anybody about violation of regulations. 21 they suggested Mr. Blanchard felt an intense pressure. 22 That's the But And they bring to us approximately 20 notes, some that 23 only went to Mr. Blanchard and some that went to all the 24 mine presidents; and 20 notes out of the millions of pages 25 that Agent Lafferty told you that he, that he looked through 5897 1 and that the Government obtained. 2 Blanchard said about Mr. Blankenship's notes and phone 3 calls. And here's what Mr. 4 Can we have the slide? 5 "Can you point us to anything in those notes or memos 6 or phone conversations where Mr. Blankenship tells you to 7 violate safety regulations?" 8 "No, sir." 9 "Or in the phone calls, in any of those phone calls or 10 recorded phone calls that we heard?" 11 "No, sir." 12 "Or in the phone calls that weren't recorded, any 13 conversation in which Mr. Blankenship told you it was okay 14 to violate safety regulations?" 15 "No, sir." 16 "Or to falsify dust samples?" 17 "No, sir." 18 And of all those thousands of reports from UBB and 19 20 otherwise, the Government has showed you 20 documents. "And I asked you if you could point to anything in any 21 one of the documents that suggested you or anyone else 22 should violate the MSHA regulations. And could you?" 23 "No, sir." 24 "In fact, the only document where the regulations are 25 even mentioned are at the meeting -- notes of a meeting 5898 1 attended by Mr. Blankenship, Mr. Adkins, and group 2 presidents; right? 3 at the meeting that the company expects them to follow the 4 MSHA regulations." And those notes tell the people present 5 "Yes, sir." 6 I'm not going to go through all of these notes. 7 the Government has tried repeatedly to use them to support 8 its story in this case. 9 Read all those notes. 10 11 The evidence is simply not there. See if you see any one in which Mr. Blankenship says anything close to violate the law. So what is the evidence that's supposed to prove beyond 12 a reasonable doubt that Donald Blankenship is guilty? 13 suppose it must be Bill Ross. 14 probably after lunch. 15 But I And I'll turn to Bill Ross As you know, because the Judge has told you and Mr. 16 Goodwin talked about it, we're talking about a conspiracy, 17 an agreement between two or more people to commit a specific 18 crime, a willful violation of MSHA regulations, and an 19 agreement to defraud MSHA. 20 Now, it doesn't have to be in writing, a conspiracy 21 doesn't, of course. 22 reasonable doubt that the so-called conspirators shared an 23 illegal purpose, an illegal purpose. 24 25 But the evidence has to show beyond a Knowledge, as Judge Berger said, is not enough. Knowledge is not enough. Suspicion is not enough. The 5899 1 conspirators must share an illegal goal. 2 happen and they intend to make it happen. 3 conspiracy is. 4 They want it to That's what It must -- you must find beyond a reasonable doubt that 5 it was Mr. Blankenship's purpose, not someone else's 6 purpose, Mr. Blankenship's purpose to commit willful 7 violations of the safety regulations and to defraud MSHA. 8 You must find beyond a reasonable doubt that it was his 9 purpose, not someone else's purpose, his purpose to prevent 10 MSHA from finding out about violations by having dispatchers 11 call underground. 12 Of course, there were no willful violations at UBB. 13 that's a good question to start with. 14 Blankenship intended, you know the only way to determine 15 what someone intended at the time is to look at what they 16 did and said during the relevant period of time. 17 But as to what Mr. So I want to show you a few pieces of evidence. 18 will call them reasonable doubts 1 through 20. 19 through them and then we'll break for lunch. 20 So And I And we'll go July 25, 2008, from Don Blankenship to Chris Adkins. 21 "It's important that we make sure we are recognizing the new 22 MSHA rules and designing our mine plans to be efficient 23 within those rules rather than mining and setting up the 24 sections the way we used to and complaining that MSHA won't 25 do what they won't let us do." That's number 1. 5900 1 Number 2. This is a memo from Elizabeth Chamberlin to 2 other people in which she says, "Effective immediately 3 individual mine safety meetings are to include a review of 4 citations and orders, should focus on the reduction of 5 orders and S&S violations and address individual 6 accountability." 7 Don." 8 9 Number 3. He writes on it, "Elizabeth, thanks. Elizabeth Chamberlin to Mr. Blankenship, August 10, 2008. "I intend to make changes in the 10 management of the Marfork/Performance safety program 11 shortly." 12 the bold at the bottom. 13 is necessary needs to be done. 14 to go from group to group. 15 they're having a bad run. 16 agree is best." Mr. Blankenship writes back and you can see in "We need to improve. So whatever However, these issues seem Be fair with safety people when Again, do what you and Chris 17 Don Blankenship to group presidents, January 19, 2009. 18 "I am aware that MSHA has changed their rates and tightened 19 up their inspections, but I had no idea we were not dealing 20 with the issue in our day-to-day operations. 21 we perhaps have turned this into a legal dispute as opposed 22 to dealing with it at the mines. 23 you are doing and figure out what your violation 24 circumstances are. 25 going to work." It seems that Everyone should drop what Obviously, what we are doing now is not 5901 1 2 Conspiracy? Conspiracy to commit willful violations at UBB? 3 What's the next reasonable doubt, Joe? 4 These are handwritten notes that Mr. Blankenship writes 5 on a message that he gets about citations in the spring of 6 2009. 7 frightening to our future than the regulators is us. 8 very, very disappointed that you all don't step up on your 9 relative pieces of this. 10 In his own typical style, "The only thing more I am Learn to fish." And then he writes to John Poma, Chris Adkins, and Mark 11 Clemens. 12 measure, manage, and eliminate violations will not provide 13 executive-level communication. 14 multi-page, detailed, shaded, microscopic reports to me. 15 It's about executive management of a new and frightening 16 challenge." "I remain frustrated that those who should This is not about 17 Conspiracy? 18 What's the next reasonable doubt, Joe? 19 March 20, 2009, Blankenship to Adkins further on 20 violations. "This memo is just thoughts about how we could 21 deal with it. 22 be better managed and that we have to elevate the level of 23 concern from the superintendents down through the mine 24 foremen, fire bosses, and back up to and including the group 25 presidents with violation reduction," and so forth, "to fill The essence of it is that our mines have to 5902 1 out whether we should have a team of inspectors. 2 see in this memo, I'm just brainstorming in an effort to 3 help you get your thoughts together. 4 bureaucratic, but let's get effective and primarily let's do 5 it yesterday." 6 As you can Let's not get Don to group presidents relating to respirable dust 7 violations: 8 to deal with this and other problems. 9 meetings, learn from Massey Coal Services processes. 10 "Group presidents, you have to develop a plan Have processes, Do your jobs." 11 He's talking about respirable dust samples. 12 This is the memo that is written to Mr. Blankenship 13 about the Hazard Elimination committee, its formation and 14 its kick-off, and its goals. 15 It's written by Chris Adkins. And Paragraph Number 4 which we've blown up here is the 16 one I wanted you to look at. 17 Mr. Blankenship who's going to be in charge of what. 18 And at the bottom he's telling And then he says, "Each will mark where we are now and 19 submit as to how we are going to reduce the violations 20 within their area by 20 percent." 21 through "20 percent" and writes "50 percent by year end 22 versus first half run rate." 23 24 25 And somebody strikes Do you know who that person was? It was Donald Blankenship. Your Honor, would this be a good time to break for 5903 1 lunch? THE COURT: 2 3 Yes, sir, if it's convenient for your argument. 4 MR. TAYLOR: 5 THE COURT: Yes. Ladies and gentlemen, I'm going to 6 recess you for lunch. While you're out, do not discuss the 7 case among yourselves or permit anyone to discuss it with 8 you or in your presence. 9 when I will release you to deliberate, but it's not here. It is getting close to that time 10 So make sure you do not discuss the case even with each 11 other. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Have a good luncheon recess and please be in your jury lounge at 10 minutes after 2:00. (Recess taken at 12:51 p.m.) We'll stand in recess. 5904 1 (The jury entered the courtroom at 2:11 p.m.) 2 (Trial resumed at 2:11 p.m.) 3 THE COURT: 4 RESPONSE: 5 THE COURT: 6 MR. TAYLOR: 7 THE COURT: 8 MR. TAYLOR: 9 a good lunch. Good afternoon, everyone. Good afternoon, Your Honor. Mr. Taylor? May it please the Court? Yes, sir. Ladies and gentlemen, I trust you had I'm always a little concerned about, about 10 the period right after lunch when I tend to get a little 11 dozy, so I hope that you will give me the, the added effort 12 to, to attend to what I have to say in the next few minutes 13 because it's as important as, as what I said this morning 14 before lunch, and I know you were paying close attention, 15 and I appreciate it. 16 I forgot to show you one piece of important testimony. 17 If I may, I'd like to go back to the issue of the, the time 18 in which Mr. Blanchard was talking to Mr. Blankenship about, 19 about the water, and when Mr. Blankenship said not to let 20 MSHA run your mines. 21 question and answer. 22 And I wanted you to be clear on the The question was, "And when he said not to let MSHA run 23 your mines, he wasn't saying that you were to incur or 24 violate the regulations, was he?" 25 Answer, "No, sir." Mary A. Schweinhagen (304)347-3188 5905 1 I was going to show you quite a few more exhibits, but 2 because of the, the amount of time it took me this morning, 3 I am going to have to cut, cut back on some of that. 4 your recollection will control and I know you will know that 5 there are many more exhibits and bits of evidence that 6 demonstrate Mr. Blankenship is not guilty than I may be able 7 to, to show you. 8 9 I know And when I sit down, of course, the Government has a chance to, to close, to finish. And if there are any 10 questions which, which I leave unanswered for you, I trust 11 you will blame them on me and not on Mr. Blankenship, 12 because I will do the best I can now for the next few 13 minutes to, to finish our discussion of, of the evidence or 14 the lack of it in this case. 15 So I want to go back to slide number 9, please, Joe. 16 This is in the same pattern, October the 9, 2009, an 17 e-mail or a handwritten note from Mr. Blankenship to Gary 18 Frampton, making the observation about citations and 19 discipline. 20 warnings are placed in the people's files and after a couple 21 of final discharges occur." "You won't make a difference until written October 9, 2009. 22 And one more, Joe, please. 23 And this, again, is from Mr. Blankenship to Mr. Adkins 24 dated October 23rd, 2009. 25 of the testimony in which Mr. Blankenship says that he was You saw it in the course of some Mary A. Schweinhagen (304)347-3188 5906 1 disappointed in the progress made and the lack of structure. 2 We are not -- and this is in connection with Hazard 3 Elimination. 4 "The effort thus far could be described as first grade. 5 We need to at least get to high school senior level efforts, 6 but I would certainly like to see doctorate level efforts. 7 I repeat, again, we need to be very serious about these 8 violations because they are going to come back to haunt us. 9 We can't be talking about what we're going to do; we have to 10 be talking about what we have done and how much improvement 11 we've made. 12 whether it's in the area of violations, production, or 13 safety, or earnings, should be past. 14 The time for talk about what we're going to do, Let's get it done." Ladies and gentlemen, I suggest to you that the 15 Government contends that there is a conspiracy in this case 16 and explain to you why that does not create a reasonable 17 doubt. 18 So what did other people, other people have to say 19 about, about the, the effort at reducing hazards or about 20 the conditions at the Massey mines? 21 We, we introduced into evidence the results of a survey 22 taken in March of 2010 that was responded to by some 2,500 23 underground miners anonymously. 24 few of these answers. 25 And I want to show you a This went directly to Mr. Blankenship. Mary A. Schweinhagen So when you are (304)347-3188 5907 1 asking yourself what his state of mind is or what he 2 believed about the conditions in the mines and what people 3 thought who were working in the mines, this is direct 4 evidence of what he heard about what people in the mines 5 thought. 6 7 8 9 First question number 5, "Enough people are available in my work group to maintain safe working conditions." 66 percent said yes; 32 percent, no; 3 percent, no response. 10 Next. 11 20, "I believe Massey is concerned about preventing 12 MSHA violations." 13 93 percent, yes; 5 percent, no; 2 percent, no response. 14 Now, when you ask yourselves whether Massey, the 15 company, condoned MSHA violations, whether that's a false 16 statement, I want you to remember that Mr. Blankenship 17 received this anonymous survey from 2,500 people. 18 percent said Massey's concerned about preventing MSHA 19 citations. 20 Next. 21 "The organization considers work safety to be greater 22 93 importance than production." 23 77 percent, yes; 20 percent, no. 24 "The company stresses proper safety procedures." 25 94 percent, yes; 4 percent, no. Mary A. Schweinhagen (304)347-3188 5908 1 I respectfully submit, ladies and gentlemen, when you 2 ask yourself, and when Mr. Blankenship is accused of making 3 a false statement, as to whether Massey condones violations 4 or is striving to avoid them, you'll remember this. 5 did he think it was a lie when he agreed to the statement 6 that said Massey condones and strives to avoid. Did he, 7 Thank you, Joe. 8 The Government also wants to ask you to convict 9 Mr. Blankenship because Upper Big Branch didn't get a new 10 pod duster. 11 course of this indictment, UBB got a total of 14 citations 12 for rock -- for inadequate rock dusting. Let me, let me remind you that over the entire 13 During the period that was covered by Agent Lafferty's 14 review of the books, there were no citations for rock dust. 15 And MSHA's in the mine virtually every day. 16 first three months of 2010, Upper Big Branch bought and used 17 872 tons of rock dust. That's a fact. During the That's in evidence. 18 As Mr. Blanchard said, that's more than three and a 19 half times the minimum amount necessary to rock dust the 20 mine. 21 And anyway, what is the evidence that Mr. Blankenship 22 knew anything about the condition of the pod duster or the 23 request for a new one? 24 a pod duster. 25 Mr. Blankenship prevented the mine from getting a pod It's easy to say the mine didn't get It's a lot harder to say, the evidence shows Mary A. Schweinhagen (304)347-3188 5909 1 duster. 2 argument, a nice speech, and evidence, about testimony from 3 a lot of people. 4 There's a difference between, between a rhetorical So let's talk about the so-called conspiracy to 5 defraud. 6 the cause of the practice of notifying people of a section 7 when the inspectors were in the mine? 8 9 10 Is there any evidence that Donald Blankenship was Was there any evidence that the folks who were doing it were conspiring with Don Blankenship? After all, this was supposed to be a conspiracy. 11 Is there any testimony that Bobbie Pauley or Charles 12 Justice or Charles Lilly were making the calls to the, to 13 the face because Don Blankenship told them to, or even that 14 they knew that he wanted them to? 15 There's no evidence of that. The Government would like 16 you to assume that, that there's a conspiracy there, but 17 they haven't given you any evidence. 18 The evidence such as it is establishes that this 19 practice was common and expected and this, and being coal 20 mines, it would have occurred if Don Blankenship had never 21 been born. 22 CEO. 23 24 25 It would have occurred if he had never been the It's the way things were done in coal mines. The dispatcher tells people, somebody may be coming. It may be an inspector; it may be the boss. Do you remember the testimony from, from Michael Smith? Mary A. Schweinhagen (304)347-3188 5910 1 He said, yeah, they always -- they got a call if the boss 2 was coming, because they'd kind of grouch, the boss would 3 kind of grouch if it wasn't cleaned up when you got down 4 there. 5 not, why would the boss grouch if it didn't look good when 6 he got down there? 7 8 9 Well, if the boss doesn't care whether it's dirty or When there's a speed trap, ladies and gentlemen, people flash their lights. The point is that the Government wants you to convict 10 Mr. Blankenship for a conspiracy to defraud MSHA simply 11 because a practice of giving notice existed. 12 widespread. 13 And it was It takes this piece of coal mining culture that says 14 it's Don Blanchard -- Don Blankenship's conspiracy. 15 like saying, I had breakfast with a ghost, and here's the 16 plate to prove it. 17 Is there any evidence that Donald Blankenship 18 instructed anybody to falsify dust sampling? 19 says he never told Mr. Blankenship that it, that it 20 occurred. 21 That's Mr. Blanchard Bill Ross says he told Mr. Blankenship that some people 22 at unidentified mines said they were falsifying dust 23 samples. 24 him that doesn't make Donald Blankenship a conspirator in 25 the falsification of dust samples. That's it. Bill Ross's saying that somebody told Mary A. Schweinhagen If it did, then (304)347-3188 5911 1 2 everybody who read that memo would be a co-conspirator. A conspirator is a partner. A co-conspirator is 3 someone who is joined with you in an effort to accomplish 4 something illegal. 5 knowledge is not enough to make a conspiracy. 6 And as the Judge said more than once, The sum total of the Government's evidence is that in a 7 phone conversation about inspectors in a mine, 8 Mr. Blankenship says he's sure there is a certain amount 9 that section bosses do and so on. That's it. There is no 10 evidence that he wanted anyone to cheat on dust sampling; no 11 evidence that he asked anybody to do it, wanted anybody to 12 do it, or told anybody to do it. 13 In fact, as you know, he approved the purchase of 14 state-of-the-art personal dust monitors. 15 testified that these were the top of the line and better 16 than any he had ever seen before. 17 18 19 20 21 And Mr. Ross So, the Government says, Bill Ross proves the conspiracy here. Ladies and gentlemen, Bill Ross is Exhibit A that Donald Blankenship is innocent. If you're engaged in a conspiracy to commit willful 22 violations, is the first thing you do invite a 30-year 23 veteran of your regulator in to see what you are doing? 24 Remember, the company hired Bill Ross four months into the 25 so-called conspiracy. And they put his office right next to Mary A. Schweinhagen (304)347-3188 5912 1 2 Chris Blanchard's. If you have a conspiracy going on, do you hire a 3 30-year MSHA employee and put him right next -- put his 4 office right next to the co-conspirator? 5 into the conspiracy invite him to meet with a member of the 6 board and urge him to be as candid as possible, to be as 7 critical as possible of your mines? 8 9 Do you 18 months I'm sure you noticed, Mr. Ross was asked to give his opinion because the company was trying to reduce citations. 10 That was the whole purpose of the conversation with 11 Mr. Suboleski and Ms. Ojeda. 12 been going on for some time by June of 2009. 13 And, you know the effort had And to continue my list of questions, once you get his 14 candid criticisms of your mines, do you ask him to write you 15 another memoranda on what he thinks you should consider 16 doing and then invite him to lunch? 17 Do you have him draft a speech for you? 18 Do you put him in a critical role in designing the 19 20 ventilation plan for your new longwall? Put him on the front line in the effort to persuade 21 your regulator that it's madness to force belt air to go the 22 wrong way? 23 To put him in the position of trying to beg MSHA on 24 your behalf not to force you to take the amount of air that 25 you wanted to put on the longwall and cut it in half? Mary A. Schweinhagen (304)347-3188 5913 1 Mr. Ross wasn't treated with disrespect. 2 When -- the Government says, I guess, when 3 Mr. Blankenship heard what Mr. Ross had to say about 4 staffing, he should have run out and immediately hired some 5 additional number of miners on every section, and the fact 6 that he didn't do that means he's a criminal. 7 The fact that he didn't want to see the Ross memo on 8 the front page of the Charleston Gazette means that he's 9 engaged in a conspiracy? 10 Is it really so strange that these memos to 11 Mr. Blankenship were marked attorney-client privileged? 12 They were sent to him by the company lawyer. 13 And I'm sure that Mr. Ruby will no doubt make a big 14 deal out of the fact that Mr. Blankenship compared them to 15 an article in the Charleston Gazette. 16 friends from the Charleston Gazette, but have you read the 17 coverage on Blankenship and the mines? 18 No disrespect to my Ladies and gentlemen, this case seems to come down to 19 the question of staffing. 20 question of whether Donald Blankenship was a criminal 21 because he didn't hire some number more miners. 22 It seems to come down to the Ross's testimony -- and the question is why? Why 23 didn't he walk out of the room after speaking with Mr. Ross 24 and immediately go to human resources and say, hire another 25 50 or 100 miners? There's good reasons for that. Mary A. Schweinhagen (304)347-3188 5914 1 Ross did not have any specifics, did he, about staffing 2 anywhere? 3 the mines. 4 about vacancies from turnover or positions. 5 at the budgets or plans for any of the mines to see how many 6 people actually worked there. 7 foremen he was talking to how many people they actually 8 thought they needed. 9 He didn't know how many people worked at any of He didn't know whether the foremen were talking He didn't look He didn't ask any of the mine If somebody says, "Gee, I'm shorthanded," isn't the 10 first thing you say, "Well, how many have you got? 11 more do you need?" 12 How many I asked the Government to tell you, when they get the 13 chance to stand back up, what is the testimony on what 14 anybody said about how many they had and how many more they 15 needed? 16 Certainly didn't do a job study or find out in any way 17 what particular mine needed a particular number of people, 18 if any. 19 reports you could look at or -- and he had none. 20 him, did you have any staffing recommendations at UBB? 21 he says, "No, I, I didn't know. 22 people worked there." 23 And he didn't even know that there were staffing I asked And I didn't even know how many So when the Government accuses Mr. Blankenship of being 24 a criminal because he doesn't hire more people at UBB, I 25 guess the first question is, well, how many more was he Mary A. Schweinhagen (304)347-3188 5915 1 supposed to hire so as not to be a criminal? 2 to know that? 3 And how is he Bill Ross repeatedly admitted that simply adding 4 workers to a coal mine would not necessarily reduce the 5 citations. 6 Just let me read you just one passage. "You didn't know whether or not adding one miner to any 7 one section would guarantee there would be no citations on 8 that section, could you?" 9 10 "No, I couldn't guarantee that." "So you certainly didn't make any specific suggestions 11 for changes to the staffing that was in place at UBB?" 12 "No, I didn't even know the staffing at Upper Big 13 14 15 16 17 Branch. I did not make no recommendations to that." "Can you say, Mr. Ross, that mines with fewer, that is, with more miners had fewer citations?" "You're asking me if I think there were more miners there would be fewer citations?" 18 I said, "Yes." 19 "I ain't going to say that's a fair question. 20 miners doing what? 21 having more miners would reduce violations? 22 that." 23 24 25 More More miners to prevent violations? "It would" -- and I asked him: I can't say Question: It would depend, wouldn't it, on a lot of things?" So I asked him, "So reducing citations isn't just a Mary A. Schweinhagen (304)347-3188 Just 5916 1 matter of numbers, is it?" 2 "Answer: 3 And you can't -- "In reference to the number of people No, sir." 4 that you have on a section, when you said it's not about 5 numbers?" 6 "Answer: It's not just about the number of people on 7 the section or in the mine or staffing. 8 numbers." 9 So, "Question: It's not about When you were talking to 10 Mr. Blankenship, you weren't telling him that you knew any 11 particular section was understaffed?" 12 "Understaffed? 13 "And you weren't saying to him that any specific 14 violations you're talking about would not have occurred -- 15 that any specific violations you are talking about would not 16 have occurred if there was another miner somewhere?" 17 No, sir." "I'm not going to say that by having another person 18 they would receive less violations. 19 because I don't know what that other person would be doing." 20 On the basis of this, ladies and gentlemen, you're I can't say that either 21 supposed to find beyond a reasonable doubt that Donald 22 Blankenship is a criminal? 23 You might have thought, since staffing at UBB was such 24 a big issue, the Government would have asked Mr. Blanchard 25 how many people he asked for and how many people were in the Mary A. Schweinhagen (304)347-3188 5917 1 final plan and what the difference was. 2 that the only person who asked him that was me? 3 Do you remember The sum total of what he says is that the plans that he 4 submitted usually didn't -- he usually didn't get all the 5 positions he asked for, but we don't know how many he asked 6 for. 7 Mr. Blanchard say about it? 8 that the plan that was approved for his mines was something 9 he couldn't run safely with. 10 And we don't know how many he got. And what did He said he never told anybody And, furthermore, he testified that he got more miners 11 that always, that were in his plan throughout the year. 12 the number of miners in the plan might very well and 13 probably wouldn't be the number of miners working in the 14 mine during the year. And 15 That's the essence of this so-called conspiracy. 16 Government says Blanchard asked for more miners for safety 17 and didn't get it. 18 asked for positions. 19 in, "I need this much for safety." 20 The If you look at what he asked for, he He never asked -- he never put a word And, frankly, you don't have any evidence that Donald 21 Blankenship ever saw his request, much less ever struck a 22 line through it. 23 In fact, the Government presents you with not a piece 24 of testimony about how the decision was made to resolve the 25 proposed plans for staffing at UBB. Mary A. Schweinhagen (304)347-3188 5918 1 The Government says that at the time when the mine was 2 having violations, Mr. Blankenship put pressure on it to 3 produce, and that was criminal. 4 First of all, it was not criminal to demand and enforce 5 accountability in coal mines. 6 true. 7 any evidence about production numbers at Upper Big Branch? 8 Any witness testify about how many tons they produced this 9 year or last year or whether it went up or down? 10 11 But, second, it's not even And the Government -- did the Government present you There's a reason for that. They said, the Government -- Mr. Goodwin says, 12 Mr. Blankenship kept insisting on his quotas, kept demanding 13 his quotas. 14 Well, I'd like to ask a question, "What quotas?" 15 you seen a quota? 16 quota? 17 insisted on? Have Have you heard the testimony about a Where are they? Where are the quotas that he 18 The Government's imagination. 19 And where is the evidence that a quota anywhere caused 20 a citation? 21 How many people were working there at the time? 22 And you would think that they would make some 23 connection between the number of people working there and 24 the -- and citations, if there are any. 25 whole theory has no support in the actual facts. Mary A. Schweinhagen The truth is, the (304)347-3188 5919 1 You would think that with all these so-called quotas 2 and pressure, that coal production would be going up higher 3 and higher so Mr. Blankenship could get richer and richer. 4 It's a myth. 5 Remember the calculation I did with Mr. Blanchard? 6 2008, the plan called for 731,000 tons. 7 The Government didn't bring that to your attention. 8 Government says he's always pounding to increase, increase, 9 increase. 10 It actually goes down. Actual, 363,000. The It actually goes down. And what happened to Mr. Blanchard as a result of that? 11 Nothing. 12 whipping people to produce and ignore safety? 13 that this proves Mr. Blankenship is insisting on quotas of 14 production at Upper Big Branch that cause safety violations 15 when, in fact, the production was in half? 16 okay, do you think, to reduce your staff if your production 17 goes in half? 18 And how is it that this proves Mr. Blankenship is How is it Would it be And 2009, the first plan called for 1,900,000 tons. 19 And lo and behold, it got reduced from 1 million 9 to 20 1 million 6 to 1 million 2. 21 22 Down, not up. As I said, ladies and gentlemen, facts are facts, evidence is evidence. 23 The facts are that Donald Blankenship is not guilty. 24 A lot has been said about belts and outby. 25 In the Government's case, they are fond of saying, well, there's Mary A. Schweinhagen (304)347-3188 5920 1 never enough people outby. 2 never enough people outby. 3 Mr. Ross said, you know, there's Well, we looked at the actual numbers, and for 2008, 4 this is at UBB, this is for the belt staffing, that is 5 outby. 6 7 8 9 10 The plan was for 20. The actual number is 33. 2009, the plan was for 20. The number was -- goes from 30 to 42 and 36 because of the starting date. And in 2010 the actual number is 15, and the plan goes to 51 and 52. What is the significance? The significance is that 11 although somebody says, gosh, I don't seem to have ever 12 had -- we didn't ever have anybody outby, Mr. Ross says. 13 Mr. Ross didn't bother to look and see how many people were 14 actually working outby. 15 And Mr. Blanchard testified that both he and 16 Mr. Blankenship authorized additional staffing on the belt 17 cost centers well above and beyond the plan. 18 authority to do it, and he and Mr. Blankenship got together 19 and agreed to do it. 20 And he had the And so I asked him, "So what you can tell from this 21 record at least is the company increased the number of 22 people working on these belts over the year from the number 23 that was originally in the plan?" 24 "Yes, sir." 25 Remember, ladies and gentlemen, what outby and belts Mary A. Schweinhagen (304)347-3188 5921 1 2 are. It's the non-production part of the coal mine. And the Government has made a big issue out of there 3 being an inadequate number of miners available outby. 4 not a single Government witness has testified to the first 5 number of people who actually were working outby. 6 A lot's also been said about the longwall. 7 numbers show you the same thing. 8 people on the longwall. 9 the records. But And the We looked at the number of I did that with Mr. Blanchard and And what the evidence showed is the plan for 10 2009 had 42 people in the plan; 59 people actually working. 11 2010, 45 people in the plan; 61, 64 actually working. 12 So what the, what the evidence the Government is most 13 fond of is in March of 2010 there was a reduction at UBB of 14 30 miners. 15 Mr. Ruby's fond of pointing this out. But you would think that in order to make this into 16 part of the criminal scheme, somebody would testify about 17 what the purpose of the, of the cuts were. 18 occurred. 19 You're left to simply guess why there were 30 people who 20 were moved or cut. 21 Were they necessary. Why they Was production down. But all I can say to you is, after the reduction, UBB 22 still had 251 miners. 23 calculation I did with, with Mr. Ross and you figure that if 24 you had 9 people on a section and you had 5 sections and 2 25 shifts, that's got you to 90. And if you take the little Remember? Mary A. Schweinhagen 9 people, 5 (304)347-3188 5922 1 sections, twice a day, 9 times -- 45 times 2 is 90. 2 would be what your production people would be doing. 3 people working in the continuous miners and the roof bolters 4 and the scoop, that's 90. 5 6 7 That The According to my math, there's 251 people at UBB at that time. There's 160 who were not in production. Now, for you to determine beyond a reasonable doubt 8 that that decision to cut miners at UBB in March makes 9 Mr. Blankenship a criminal, it seems to me you deserve some 10 explanation of why that decision is driven by greed or, or 11 by some other criminal motive or some conspiracy rather than 12 simply asking you to guess about why. 13 So let me talk about a couple of other things. There's 14 a comparison that the Government brought to us in the later 15 stages. 16 This was Government's Exhibit 454? 445. We brought you a chart from Mr. Childress in which they 17 gave you the name, the controller, company name, the year, 18 total citations, total penalty. 19 Okay, remember that chart? But what they didn't tell you, as they asked you to 20 conclude from this that Massey is the worst company in the 21 country, what they didn't tell you is that these other coal 22 mines, like Massey, are all divided into facilities. 23 you're -- it doesn't tell you until you look up the number 24 of facilities that are actually regulated by MSHA what the 25 real picture is. Mary A. Schweinhagen (304)347-3188 And 5923 1 And if you look at the data which is included with the 2 chart and do the math, you will find that the math is 3 exactly what we've put here. 4 104 facilities. 5 citations and orders per facility, you get this number, 6 compared to divide -- divide the number of facilities at 7 Peabody or Arch or Consol and compare apples to apples, the 8 numbers look a whole lot different. 9 up all the Massey citations and say, look how bad Massey is This is not one mine; this is And if you divide that into the number of And if you simply add 10 compared to all these other mines and just forget to tell 11 you that you are looking at 104 facilities at Massey and 140 12 by 2010 because they had made an acquisition. 13 Beyond a reasonable doubt. 14 We do have one real apples to apples comparison. And I 15 grant you that there are questions about, you know, are 16 these companies out west, are they big mines, small mines, 17 big seams, little seams, tough, tough, easy, whatever? 18 at least you should know, at least you should know when you 19 compare that you compare by the number of MSHA-regulated 20 facilities and not by the total number of citations. 21 22 But Your Honor, I have -- I think I have an hour and five minutes left, was that? 23 THE COURT: 24 MR. TAYLOR: 25 THE COURT: When I came back? Yes. I think that you -- Till 3:15? Yes, sir. Mary A. Schweinhagen Close to 3:15. (304)347-3188 5924 1 MR. TAYLOR: 2 THE COURT: Thank you. I thought you were telling me you had 3 an hour and five minutes left now, Mr. Taylor. 4 Go ahead. 5 6 7 MR. TAYLOR: I'm sorry. That's all right, Your Honor. Just checking. Remember, we talked about the Harris mine, which is the 8 real apples to apples comparison here. 9 same seam, same coal seam, right next to UBB. It's on the same, And in the 10 same period as the indictment, Harris had 1,092 citations 11 compared to 837 at UBB. 12 13 Think about this, this mine right here. Same time period, 1,090 citations, compared to 837 here. 14 So when the Government argues to you that this is an 15 astonishing number of citations and should put anybody on 16 notice, you should stop and think, well, really, what does 17 that mean? 18 citations, or understanding that there will be a certain 19 number of citations, they -- you have to ask much more than 20 just the fact that they occur, don't you? 21 more than just what the number is here. When we talk about the inevitability of You have to know 22 You've -- the Government wants you to believe that 23 these 837 or so at UBB are somehow either evidence of or the 24 result of a conspiracy. 25 Now, of course none of them is willful. Mary A. Schweinhagen We're still (304)347-3188 5925 1 remembering that this is a conspiracy to commit willful 2 violations. 3 time, does that mean there's a conspiracy at Harris? 4 does that mean something different? 5 But if Harris has 1,000 in the same period of Or When people say, and they looked down from the witness 6 stand, Ross, Blanchard, everybody, citations are inevitable. 7 They are as much a part of coal mining as is a scoop. 8 that's not because anybody wants 'em or because anybody's 9 trying to get 'em. And It's because the regulatory 10 responsibilities of MSHA and the inspectors require them to 11 go into every mine in the country and observe conditions and 12 write citations. 13 Now, why? And that's what they do. There's no -- nothing I can tell you in the 14 evidence about causes, because there isn't any evidence 15 about the cause of any particular citation, is there? 16 is not a witness testifies that he was there when a citation 17 occurred. 18 There You have got a lot of paperwork, but no witness. But this much we can say, if there was nobody in a coal 19 mine, there wouldn't be any citations. 20 coal mines. 21 are fire-bosses and inspectors and superintendents, roof 22 bolters, electricians, scoop operators, some like their 23 bosses and some don't, some think they know more about 24 mining coal than MSHA or their bosses. 25 accumulations and some walk right by. Human beings run Human beings work in coal mines. Mary A. Schweinhagen Human beings Some pick up (304)347-3188 5926 1 2 3 It was a cruel question to ask Mr. Blanchard. "So are you blaming the miners for these citations?" Nobody's blaming the miners. But the Government wants 4 you to find beyond a reasonable doubt that Donald 5 Blankenship is a criminal because these mines got these 6 citations, in the absence of any proof that he caused them. 7 Try as hard as they can, they will not show you a 8 single citation they can say he caused. 9 talking about a conspiracy to commit willful violations. 10 He shouldn't be acquitted because he's the CEO of a Don't forget, we're 11 huge company, just because of that, but neither should he be 12 convicted because he's the CEO of a huge company whose 13 employees were doing things wrong. 14 Let me read you something from Mr. Blanchard. 15 "Question: 16 You testified you had an understanding that a certain amount of citations were inevitable, right?" 17 "Yes, sir." 18 "But it was impossible to prevent a certain amount of 19 violations?" 20 "Answer: 21 "Because there is almost no mine in the country that Yes, sir." 22 can avoid violating safety regulations at some point in 23 time?" 24 "Yes, sir." 25 "Too many of the citations are too subjective. Mary A. Schweinhagen (304)347-3188 And 5927 1 that's the understanding you are talking about, isn't it? 2 You're understanding the citations are inevitable? 3 not an understanding you wanted to cause the citations or 4 Mr. Blankenship was telling you to cause citations?" 5 "Yes, sir." 6 I want to talk about Counts Two and Three now. It was As 7 Mr. Goodwin said, these are sort of called false statement 8 counts. 9 Count Two charges that Mr. Blankenship made or caused 10 to be made a false statement in a filing with the Securities 11 and Exchange Commission. 12 condone any violation of MSHA regulations and we strive to 13 be in compliance with all regulations at all times." 14 The false statement is, "We do not Count Three charges that he made and he caused Massey 15 to make the same statement to shareholders. 16 Count Three is that he caused the company to make the, make 17 the statement so as to deceive and defraud shareholders and 18 to deceive the Securities and Exchange Commission. 19 The charge in As I said earlier, we might have expected that some 20 shareholder would testify that he was deceived. 21 hear a single shareholder testify that he was misled, nor 22 did we hear an SEC official say his agency was. 23 even hear a witness say Mr. Blankenship wrote the statement 24 or that he revised it. 25 We didn't We didn't The testimony was exactly the opposite, wasn't it? Mary A. Schweinhagen (304)347-3188 5928 1 Did you hear any of the witnesses involved in preparing 2 the statement or reviewing it say it was false or that 3 Mr. Blankenship knew that it was false? 4 if you are going to charge somebody with a false statement, 5 you'd have a witness who comes in and says it's false? 6 Wouldn't you think, Anyway, it doesn't, it doesn't add up that there is no 7 witnesses -- witness who testifies that this statement was 8 made because of the stock. 9 statement had to do with deceiving the shareholders, you If the purpose of making the 10 would think there would be some testimony from somebody that 11 that was the purpose. 12 witness or some piece of evidence to say, this is the reason 13 why this was done. 14 I mean, seriously, we'd expect some There's no testimony to that. No evidence. What we 15 have, as we know, is that the statement was done in response 16 to media which was criticizing the citations at UBB. 17 The Government did put on two witnesses, John Poma and 18 Karen Hanretty. 19 statement was false. 20 raised even the slightest concern. 21 purpose of it was to deceive investors or the SEC. 22 Neither of them testified that the Neither testified that a single person Neither testified the They testified about the process, about how the 23 statement was drafted, the number of attorneys that it went 24 through, the number of management people who looked at it, 25 and how it was finally issued and how Mr. Grinnan prepared Mary A. Schweinhagen (304)347-3188 5929 1 the SEC filing. 2 about the statement. 3 And that's the sum total of the evidence These two counts are all about purpose, purpose to 4 deceive. 5 the only thing you will find is that the people involved in 6 preparing that statement thought they had to respond to 7 criticism about the issues of safety at UBB. 8 what the statement said, isn't it? 9 Search the evidence in this enormous record, and And that's Let's take, let's take a step back and talk about what 10 the statement actually says and what it doesn't say. 11 actually contains 49 other sentences. 12 focuses on one, but let's at least look at the entire 13 paragraph. It The Government 14 Lawyers get criticized for -- 'cause they talk about 15 words, the meanings of words, and we probably deserve it, 16 but to be fair, these two counts are about words. 17 important that we look at these words and understand what 18 they say and what they don't say. 19 It's The sentence that's highlighted there is not about 20 whether violations occurred or not. 21 everybody else said, the citations were public. 22 shareholder statement acknowledges the violations and says, 23 "We try to correct them as soon as possible. 24 violations, we don't condone them. 25 strive or try not to get them." Mary A. Schweinhagen As Mr. Childress and And the While we get And when we get them, we (304)347-3188 5930 1 Mr. Poma acknowledges -- he testified that the 2 paragraph specifically acknowledged receiving the citations, 3 and that even though we get them, we don't condone them, and 4 we try to prevent them. 5 Even Mr. Torchio agreed, Massey's not saying that it 6 didn't get citations; they are just saying we try not to get 7 them. 8 9 Understanding the reality that a coal mine received citations doesn't mean that you condone them. And 10 everything in this record that's before you that you will 11 deliberate about in the jury room demonstrates that Massey 12 was trying to prevent them; that Don Blankenship was trying 13 to prevent them and trying to reduce them. 14 So the question before you is whether the Government 15 has proved beyond a reasonable doubt that Mr. Blankenship is 16 guilty of these two counts because of the statement. 17 And let me point these things out to you. The 18 Government hasn't proven that it was his idea to write the 19 statement. 20 was. 21 22 23 Mr. Poma testified he had no idea whose idea it He said he couldn't say it was Mr. Blankenship's idea. Mr. Blankenship didn't draft the statement. edit. He didn't sign it. He didn't He's not even named in it. And you saw that the only connection that 24 Mr. Blankenship ever has with this document is to put on the 25 top of it "Okay." Mary A. Schweinhagen (304)347-3188 5931 1 Now, Mr. Blankenship did ask Mr. Poma to be the 2 coordinator or the traffic cop. 3 he moved these drafts back and forth among people. 4 know, that's all true. 5 Lawyers finally approved it. 6 But that's not a crime. And, and he did that. And And, you Lawyers, lawyers were involved. The crime, if there is one, 7 is, is causing a statement that's false and that's done with 8 the purpose to deceive people. 9 evidence that there was a purpose to deceive anybody. 10 And there's not a shred of As Agent Lafferty told us, the Government didn't even 11 interview Roger Hendriksen, the person who drafted the 12 statement. 13 in the stock cared about the statement. 14 And there's not even any evidence that investors At most, the Government presents us with a letter from 15 the SEC from several months later. 16 completely different filings. 17 The letter that the Government referred to coming from the 18 SEC after this time doesn't relate. 19 But it concerns Let's be clear about that. And, of course, the statement was vetted carefully by 20 management and by lawyers. 21 Carter, the attorney for the outside law firm. 22 Mr. Blankenship gave his final go ahead. 23 It was finally cleared by David And Of all of these people who were involved in the 24 preparation of that paragraph, Mr. Blankenship was the only 25 person who stands charged with doing anything wrong. Mary A. Schweinhagen (304)347-3188 5932 1 Finally, the Government has failed to prove beyond a 2 reasonable doubt that Mr. Blankenship believed the statement 3 was false. 4 because Mr. Blankenship did not believe the statement was 5 false. 6 that Mr. Blankenship had within the last month read the 7 survey that showed that 93 percent of all underground miners 8 agreed Massey was concerned with preventing MSHA violations, 9 and that he was, too. 10 And it hasn't done that because it can't do that There's no testimony that it was false. And we know We also know that the statement is true from all the 11 evidence -- other evidence in the case, a good deal of which 12 I went over with you this morning. 13 But most particularly, I bring you back to, quote, "I 14 remain frustrated that those who should measure, manage, and 15 eliminate violations will not provide executive-level 16 communication." 17 We know it from the testimony that Mr. Blankenship was 18 beating on people to reduce citations. 19 every single witness who testified in this case who had any 20 meaningful contact with Mr. Blankenship, Bill Ross, Chris 21 Blanchard, John Poma, Sandra Davis, testified unequivocally 22 that he did not want these violations and that he was 23 demanding that hazards be eliminated and reduced. We know because 24 Reducing them was the goal. 25 I'm going to ask Mr. Ruby to show you one piece of Mary A. Schweinhagen (304)347-3188 5933 1 evidence that shows the company did not want fewer 2 violations. 3 I'm going to sit down now, in just about five minutes. 4 Before I do, I want to remind you of what I said when we 5 started. 6 basis of maybes. 7 they are rich or they are rude or they are tough. We don't convict people in this country on the We don't convict them of crimes because 8 We require the Government to prove more than that a man 9 was in charge of a company when a terrible tragedy occurred. 10 We're required to prove more than that he believed in the 11 bottom line and that he expected other people to do that, 12 too. 13 an agreement to commit willful violations of mine safety 14 regulations and that he actually made an agreement with 15 somebody to cover them up, and that he actually caused a 16 company to issue a statement to shareholders written by 17 others, approved by lawyers and issued by the company, that 18 he did it for the purpose of deceiving shareholders and he 19 knew that it was false. 20 21 We require in this case to prove that he actually made There is no such evidence. I have seven questions to leave. 22 First, if the Government contends that Mr. Blankenship 23 is guilty because not enough miners worked at UBB, how many 24 would it have taken for him not to be? 25 How many miners actually worked at UBB? Mary A. Schweinhagen (304)347-3188 5934 1 How many shifts were there? 2 What witness testified that Mr. Blankenship instructed 3 4 5 6 7 How many belts? him to commit a violation? What witness testified that Mr. Blankenship instructed him to cover up anything? What witness testified that the statement to shareholders was written to deceive anyone? 8 What shareholder was deceived? 9 What witness testified that there's a coal mine 10 11 anywhere in the country that does not get MSHA citations? The Government gets to go last because it has the 12 burden of proof in our country. 13 as we discussed earlier, the prosecution has the burden of 14 proof. 15 summing up. 16 As the Judge told you and It gets to go first and it gets to go last in And that is a burden which it has not met, a burden 17 which it cannot meet, and it is because Mr. Blankenship is 18 on trial here because four and a half years after the 19 tragedy the Government decided they wanted to prosecute him 20 in the hope that the jury would forget about the evidence, 21 or the lack of it, and decide, well, maybe he's guilty. 22 23 He's not guilty. And we should never have been here in the first place. 24 THE COURT: 25 MR. RUBY: Mr. Ruby. May it please the Court? Mary A. Schweinhagen (304)347-3188 5935 1 THE COURT: 2 MR. RUBY: Yes, sir. If talking about the law, talking about 3 following the law were the same thing as actually following 4 the law, then we wouldn't have had to be here in the first 5 place and we wouldn't be here today because the defendant 6 and people at Massey certainly talked about following the 7 law. 8 9 10 There is no question about that. You've seen from talk from 2006 or 2007, all the way up to the time the UBB mine exploded, notes and memos saying, okay, now it's time to stop having safety violations. 11 But year after year, the safety violations keep going 12 up. 13 most safety law violations in the country. 14 than the next closest company, even companies that were 15 producing millions of tons more coal than Massey. Year after year after year, Massey keeps having the Thousands more 16 And what you heard from the miners who worked at UBB 17 was that year after year after year, right up to the time 18 the mine exploded, they were told to work in dangerous and 19 illegal conditions to maximize coal production, and to cut 20 the company's spending on people, on coal miners to the 21 bone. 22 Because all that talk about following the safety laws 23 was just talk. 24 it up, to actually put money behind it, the defendant said 25 no. When it came time to decide whether to back Mary A. Schweinhagen (304)347-3188 5936 1 The exhibit that Mr. Taylor started out with before 2 lunch on the board that he put on the easel -- and I don't 3 know where it is right now -- that example that he said says 4 it all. 5 about the computer system -- the testimony that you heard 6 during trial is that the computer system the defendant talks 7 about and the note that he wrote on that exhibit, it never 8 existed. 9 it, and it never happened. 10 11 It does say it all, because that exhibit, the one It was never created. The defendant talked about That is what the witnesses who looked at that exhibit told you. The defendant wants you to look at the small picture, 12 to look at each little piece of evidence in the case 13 separately, individually, and say that by itself that piece 14 of evidence isn't enough. 15 What I want to do in the last few minutes that I have 16 with you today is ask you to look at the big picture. 17 at what the evidence as a whole that you've heard over the 18 last month and a half shows you. 19 It's been a long case, but that doesn't mean it's a 20 hard case. 21 sum up the case in six sentences. 22 Look We've been here for six weeks or so, but I can The Upper Big Branch mine sadly was the site of 23 hundreds of serious preventable safety violations, including 24 the most unwarrantable failure orders of almost any coal 25 mine in America. The defendant knew that the Upper Big Mary A. Schweinhagen (304)347-3188 5937 1 Branch mine was continually breaking the mine safety laws 2 and that it was one of the worst mines in all of Massey for 3 safety violations. 4 The defendant, the chief executive officer and the 5 chairman of the board of Massey, had it completely within 6 his power, completely within his power to put a stop to the 7 vast majority of the safety violations at UBB if he was 8 willing to spend a little bit more money and take a little 9 bit more time to devote to following the safety laws. 10 Instead, he chose, he chose to keep on breaking the mine 11 safety laws at UBB, not just allowing it, not just sitting 12 passively by while the laws were broken, as if that wouldn't 13 be bad enough, but taking actions and imposing policies and 14 denying requests that he knew were going to cause the 15 constant law-breaking that existed at that mine to continue. 16 And the reason that he did it was money, millions and 17 millions of dollars for him, hundreds of millions of dollars 18 for Massey, millions for the "yes" men that he surrounded 19 himself with. 20 eyes of the world on him and his safety practices, he lied 21 about it to cover it up and to keep the money machine going 22 a little longer. 23 And when tragedy happened and he found the That's what the evidence shows you. If those six sentences are too long, you can boil the 24 entire case down to one question. 25 I'll ask you again before I finish: Mary A. Schweinhagen I'll ask you this now and Do you believe that the (304)347-3188 5938 1 defendant and his "yes" men at Massey had an 2 understanding -- and it doesn't have to ever have been 3 anything that they came right out and said, it can be 4 unspoken -- but did they have an understanding that safety 5 laws would be overlooked at UBB when it was profitable to 6 overlook them? 7 Mr. Taylor said a number of times, there are no 8 witnesses to say there were any willful safety violations at 9 UBB. I guess he forgot about the coal miners. It's not the 10 first time the coal miners at UBB have been forgotten. 11 maybe it's not a surprise. 12 coal miners who worked at Upper Big Branch who testified in 13 vivid detail about will -- about willful safety violations 14 that went on in that mine day in and day out. 15 So But you heard from a dozen or so And I want you to picture what you have heard about 16 that in this case. 17 the course of weeks and hear testimony, let it turn into 18 words that are running together. 19 going underground every day miles away from daylight in 20 complete darkness. 21 Picture, if you can, being miles away from fresh air, not 22 being able to get enough of it; being told by your bosses to 23 keep on mining anyway without so much as a breeze, in 24 methane gas that you know can become explosive if there is 25 not enough air to blow it away from you. It's easy to, to, as we sit here over But picture that. Picture Some of you know something about that. Mary A. Schweinhagen (304)347-3188 5939 1 Picture mining day in and day out, eight or ten hours a 2 shift, while you are literally choking on the coal dust in 3 the air around you. 4 reroute the air in the mine because safety inspectors are 5 coming and you've got to trick them into thinking there's 6 enough fresh air in the part of your mine where your friends 7 are working. 8 friends' fresh air away as soon as the inspector leaves so 9 they go back to sweating and choking and being afraid that 10 11 Picture having your boss tell you to go And then picture being told to go take your the methane gas is going to come back again. Picture a miner who knows that what is standing between 12 him and black lung disease is the dust pump, the sampling 13 device that's supposed to check how much coal dust he is 14 breathing. 15 cheat on the sample so he can keep eating coal dust without 16 anybody outside ever finding out about it. 17 Picture that miner being told that he has to Picture Larry Adams, the fire boss, that came in here 18 and testified, probably 70 years old, I don't know; 40 years 19 in the mines, bad legs, being told that you have to walk 20 miles upon miles of conveyor belts every night, alone in the 21 dark, and change the belt rollers, all alone in the dark; do 22 the maintenance, again all alone; fix the roof in the places 23 that you find it falling down, and then shovel up tons of 24 coal that's come off the belt. 25 Again, all alone. And if you don't, and an inspector finds a violation on Mary A. Schweinhagen (304)347-3188 5940 1 your belts, then you're the one who gets, quote-unquote, 2 disciplined. 3 Being told to cover an entire mine the size of UBB with 4 only one other person to help you, that would be a joke if 5 it weren't so scary. 6 supposed to do all that? How in the world is a human being 7 Picture telling your bosses you were afraid something 8 bad, something serious was going to happen at UBB, telling 9 anybody who would listen and being ignored. 10 Picture walking through a mine and seeing everywhere in 11 the tunnels around you coal dust, knowing it's explosive, 12 knowing there's an easy way to make it safe by putting down 13 pure white rock dust on top of it, but the people in charge 14 won't take the time to do it. 15 Picture being told it's your job to spread the rock 16 dust that can stop explosions from happening or spreading in 17 a coal mine but then picture being given a piece of 18 equipment that won't work, that's broke down half the time. 19 20 21 Picture asking over and over again for a rock duster that works and being ignored. Picture being pulled away night after night from what 22 you're supposed to be doing because the mine was shorthanded 23 and there was other work that was more important to keeping 24 the coal rolling on the belts. 25 Picture coming to work at the end of March in 2010 and Mary A. Schweinhagen (304)347-3188 5941 1 writing a note to your boss in the middle of the night, "I'm 2 set up to fail here." 3 Picture being a section foreman at UBB. 4 Picture Rick Hutchens who came in here and testified, 5 trying to do the right thing, trying to follow the law, and, 6 and doing everything he can to keep his crew safe. 7 Picture him being sent all the way down to the far end 8 of the mine -- he's shorter than I am -- forced to wade 9 through water up to his chest, in places up to his neck, 10 slip-sliding across the bottom of the mine in pitch black 11 darkness. 12 because he knew that if anything happened to him back there 13 nobody would ever find him. 14 Picture him taking one of his men with him Picture him trying to follow the law, risking -- 15 risking his life in water that's almost up to the roof. 16 the thanks that he gets for it is somebody threatening to 17 fire him three or four times a week for trying to do the 18 right thing. And 19 Fast forward a few years to this trial and picture 20 having the defense try to blame the coal miners for the 21 safety violations that happened at UBB. 22 Mr. Taylor said that that's not what the testimony was, but 23 you heard the testimony. And I know 24 The coal miners who went to work every day and kept 25 their heads down and did their best to make a living for Mary A. Schweinhagen (304)347-3188 5942 1 their families. 2 that what happened at the mine, the violations that happened 3 at the mine, were the miners' fault because they were too 4 lazy or incompetent to do their jobs. 5 they were all but begging in fact just to be given a chance 6 to do what was right, to follow the laws that were designed 7 to keep them safe on the job. 8 Picture having a bunch of lawyers suggest Picture Bill Ross. They were all -- when When you go back to the jury room 9 and you start your deliberations, I want you to pull out 10 four documents -- you are going to have with you all the 11 documents that came in in this case, and that's a mountain 12 of them. 13 But I want you to remember these: Government's Exhibit 14 Number 96, Government's Exhibit Number 97, Government's 15 Exhibit Number 189, and Government's Exhibit Number 191. 16 All of these are documents from Bill Ross, 40 years in coal 17 mining, 30-plus years working in mine safety. 18 go to work for Massey thinking he can make a difference 19 there, but he hasn't been there for even a year when he 20 becomes alarmed, deeply concerned about the constant safety 21 violations that he sees at the company's mines, including 22 UBB. 23 He starts to tell people about it. He retires to And so the 24 defendant sets it up for him to meet with a lawyer. 25 what comes out of that is this, Government's Exhibit 96. Mary A. Schweinhagen (304)347-3188 And 5943 1 Pull it out when you get back to the jury room and pass it 2 around, look at it with your own eyes. 3 This is probably the single most important document in 4 the case, at least one of the two most important. 5 to believe, even for me now, that a document like this 6 exists. 7 executive officer of the company, with the words of Bill 8 Ross in it. 9 It's hard A memo directly to the defendant, the chief This is from June of 2009. It starts out -- well, it starts out by saying, "Don't 10 tell anybody about this." 11 top, in a big, bold box, all capitals, "Confidential, 12 attorney-client privileged communication. 13 and" -- in case you missed it the first time -- 14 "confidential." 15 16 17 Big, bold letters here at the Privileged Do you think they wanted to keep this confidential? Well, we can see why, right? "If you can get the footage, we can pay the fines. 18 Foremen are continually forced to work with skeleton crews. 19 We are like robots. 20 aren't given the manpower to actually do it. 21 run, run, run until we get caught. 22 we will fix it. 23 Everything is laid out for us but we We are told to When we get caught, then "With sufficient manning, Massey could get tons up and 24 bring violations down at the same time. 25 cheating on dust sampling, the tests that were run in the Mary A. Schweinhagen Massey's plainly (304)347-3188 5944 1 mine to figure out how much coal dust miners were breathing 2 into their lungs. 3 "Massey has been warned about cheating on its samples 4 of breathable coal dust and it still hasn't changed 5 anything. 6 never have the manpower to follow through. 7 We continually make promises to MSHA but then "The inspectors continue to find repeat violations. 8 Massey never improves. 9 a model mine" -- and he singled out the Upper Big Branch in Proper staffing is the key to having 10 particular. 11 across Massey, the one mine that Bill Ross singled out in 12 this memo that went directly to the defendant in June of 13 2009 was the Upper Big Branch mine. 14 Of all the mines in the entire company, all "Does anyone care? Does it matter to anyone? Sooner 15 or later, we will pay the price, especially if there is a 16 serious injury or a fatality." 17 Government's Exhibit 97. This is another memo from 18 Mr. Ross that went to the defendant. 19 the same things. 20 one complaint, not enough personnel to keep up the mine to 21 prevent citations and orders. 22 belts, rock dusting, supplying stopping, the walls, that get 23 fresh air to where it needs to go in the coal mine." 24 25 In this one he says This is from July of 2009. "The number Cleaning and maintaining The e-mail that Mr. Ross sent, the cover e-mail that he sent with that memo is Government's Exhibit Number 189, and Mary A. Schweinhagen (304)347-3188 5945 1 I want you to take a look at this one because, because this 2 shows you, if you want a picture what it was like to be Bill 3 Ross at this point in this company, take a look at this 4 document. 5 When he sends the memo, "I'm positive the District 4 6 will be totally amazed by our turnaround. 7 about a new Massey Energy Company should this take hold. 8 Let's hope and pray that new and better things are going to 9 happen." 10 I'm so thrilled Picture his meeting with the defendant. You saw 11 Mr. Ross on the stand for, for a while. 12 guts that it took for Bill Ross to march into the 13 defendant's office and say, "You are probably going to fire 14 me but you need to hear this anyway," to tell him that the 15 company's mines were starving for the coal miners that they 16 needed to keep up with basic safety laws and keep their 17 miners safe; to tell him that the company was cheating on 18 its dust samples; to tell him what a difference it would 19 make if he would add just one more coal miner, a single coal 20 miner to each of the company's mining sections, how big that 21 would be for stopping violations of basic laws on mine 22 safety; to tell him that the one thing the company couldn't 23 afford to have happen was a disaster. 24 25 Think about the courage that took. Think about the And think about the disappointment, the disappointment that Mr. Ross must have Mary A. Schweinhagen (304)347-3188 5946 1 felt when the defendant told him he wasn't willing to pay 2 the 60- or $65,000 that it would take to hire one more 3 miner. 4 making over $17 million a year and to a company making more 5 than $2 billion a year wouldn't spend $65,000 per section to 6 hire one more coal miner when that is what it would take to 7 follow the law. 8 9 Think about how crazy that must have seemed to a man Picture, picture, if you can, this from the defendant's perspective. Picture what he was seeing and what he did in 10 response. 11 memo like this telling you that your mines are plainly 12 cheating on dust sampling, that you keep repeating the same 13 safety violations over and over again and never improve, 14 that the attitude at your mines is run, run, run until we 15 get caught. Picture being the CEO of a company and getting a When they find it, we'll fix it. 16 Picture getting the information that he got every 17 single day, the daily violation reports that showed him not 18 just the number of violations that were occurring at the 19 company's mines but the types of violations. 20 these were violations for ventilation, for fresh air, and 21 not having fresh air, not following the laws on fresh air in 22 the company's mines. 23 Things that catch on fire in a coal mine, for accumulations 24 of coal dust, which is explosive in a coal mine. 25 putting down enough of the protective rock dust that The fact that Violations for combustible materials. Mary A. Schweinhagen For not (304)347-3188 5947 1 prevents explosions from spreading in a mine. 2 Picture being the chief executive officer of a company 3 and learning those things and then making the decisions that 4 the defendant made to ignore what he was told about how, how 5 to follow the safety laws and to continue to run his company 6 in a way that he knew, knew to a certainty was going to 7 cause those violations to continue. 8 9 10 Picture a person who could know that his mines had the worst safety record in the company year after year and continued to put profits over following the safety laws. 11 That's exactly what you have in this defendant. 12 We've talked about what we call the elements of the 13 charges or the different legal pieces that you have to 14 consider. Let me try to boil it down to five questions. 15 Number one, was there a conspiracy? 16 Number two, was the defendant part of it? 17 Number three, were the violations willful? 18 Number four, were the statements that were made to 19 shareholders after the explosion false or misleading? 20 21 And number five, was the defendant responsible for them? 22 First question, was there a conspiracy? The answer is 23 yes. 24 crime of conspiracy under the law doesn't just mean a bunch 25 of guys in a backroom plotting and scheming or dividing up And here's what's important to know about it. Mary A. Schweinhagen (304)347-3188 The 5948 1 the loot. 2 word, but it's broader than that, as the Judge has already 3 told you. 4 That might be what we picture when we hear the A conspiracy can be an unspoken understanding to break 5 the law and there's a good reason that the law works that 6 way. 7 somebody had a formal or spoken agreement to break the law, 8 then it would be easy to get around the law. 9 to do is not come out, come right out and say what you were 10 11 If the only way to prove a conspiracy was to show that doing. All you'd need That wouldn't be a good law. So what the law says is that the understanding at the 12 heart of the conspiracy can be unspoken. 13 mean, an unspoken understanding? 14 word, "an understanding." 15 certain groups of people that are just understood, that 16 don't have to be spoken because everybody's already on the 17 same page. 18 What does that Well, think about that There are certain things within You heard one coal miner after another in this case 19 take the stand and testify that it was understood that 20 safety laws were going to be violated at UBB whenever they 21 could be. 22 There were times when their bosses told them to do that 23 directly, to go mine in, when there wasn't enough fresh air 24 to meet the legal requirements or to mine in areas where the 25 roof wasn't properly supported. But a lot of the time Mary A. Schweinhagen (304)347-3188 5949 1 the -- a lot of the times the violations happened because 2 there was an unspoken understanding that that was the way 3 things were going to be done. 4 The defendant knew that the Upper Big Branch mine was 5 continually breaking the safety laws. 6 in charge at UBB knew that he knew that. 7 information he was getting. 8 right out and say, "break the law," he didn't need to. 9 They knew what And even if he didn't come What he instead said was, "You need to run coal. 10 doing construction and run coal. 11 another time and run coal." 12 The people who were Quit Worry about ventilation "If anybody tells you that you need to do anything 13 other than run coal, you need to ignore them and run coal." 14 That's Government's Exhibit 79. 15 "The number of people that you have to do your safety 16 examinations and clean up your conveyor belts and put down 17 rock dust in your coal mine is ridiculous and literally 18 crazy. 19 Run coal, run coal, run coal." When the defendant knew that the Upper Big Branch mine 20 was breaking the basic safety laws every single day, his 21 relentless response was to run coal and do it less -- do it 22 with less coal miners than before. 23 unspoken understanding. 24 the mine was going to keep breaking the safety laws so long 25 as that was the way to make more money. That's what we call an The plain understanding was that Mary A. Schweinhagen (304)347-3188 5950 1 If that's not an unspoken understanding that the mine 2 safety laws were going to be broken, then I don't know what 3 is. 4 You heard testimony from the president of the mine who 5 said that the defendant, who talked to him every day, at 6 least, during most of the conspiracy, most of the time 7 period we're interested in and sometimes multiple times a 8 day, and who sent him hundreds or thousands of handwritten 9 notes telling him what to do or not to do over the span of 10 this two or three years, rarely, if ever, talked to him 11 about the number of safety violations, the hundreds of 12 safety violations that his mine had; and invariably told him 13 to run more coal. 14 The defendant wants you to reward him for being smart 15 enough not to come right out and say, "I want you to break 16 the law." 17 was careful enough to come right up to the line of putting 18 it explicitly, putting it into words without doing it. 19 Don't do that. 20 He wants you to let him off the hook because he The understanding that UBB was going to continually 21 break the mine safety laws is as clear from the evidence in 22 this case as if the defendant had put up a billboard that 23 said, "We will break the law whenever it is profitable to do 24 it." 25 understanding is. That's how clear it was. That's what an unspoken And that's the essence of a criminal Mary A. Schweinhagen (304)347-3188 5951 1 2 conspiracy. Was the defendant part of the conspiracy? Again, the 3 answer's yes. 4 you think conspiracy, think about the understanding, the 5 unspoken understanding about law-breaking that existed at 6 Massey and UBB. 7 I've already explained part of this. When The defendant wasn't just part of this, he was the 8 driving force behind it. 9 think that the constant safety violations that happened at The defense would like you to 10 Massey happened without the defendant's involvement or in 11 spite of what he did to try to stop them. 12 That's not true. You've seen how Massey ran and how the defendant 13 micromanaged it. 14 the jury room Government's Exhibit 80. 15 more hiring unless I" -- that's the defendant. 16 memo that he sent. 17 multi-billion-dollar company, "No more hiring unless I 18 approve the individual being hired. 19 to you but there will be no more hiring." 20 Look at -- pull out when you get back to "There will be no This is a The defendant, the CEO of this Look at Number 156, 156. This may be surprising Upper Big Branch asks for 21 $750 in a mining group that made hundreds of millions of 22 dollars a year, $750 for a freeze proofing system before 23 winter hit. 24 25 The defendant had to personally approve it. And he says he doesn't approve it. response, "No. Nonsense. He says in Giving away money." Mary A. Schweinhagen (304)347-3188 5952 1 Look at Number 153, the defendant lighting into the 2 president of Upper Big Branch because he didn't get his 3 30-minute production report on time every half hour over a 4 weekend. 5 company without him knowing about it and having his hands on 6 it. 7 case that the defendant was sitting by passively while UBB 8 and the company's other mines continually broke the safety 9 laws. There was almost nothing that went on in this You cannot seriously conclude from the evidence in this He was the boss of bosses at Massey, and the 10 understanding that the safety laws were going to be broken 11 could not have existed without his participation in it. 12 And he didn't just allow it. You've seen document 13 after document where the defendant throws fuel on the fire. 14 "Worry about ventilation later. 15 and run coal. 16 other than run coal." 17 Forget about construction Ignore anybody who tells you to do anything The next question is, were the violations willful? 18 Again, the answer's yes. 19 that happened at UBB were willful on a couple of levels. 20 They were willful when they were committed or allowed to 21 occur at the mine, and they were willful on the part of the 22 defendant. 23 The majority of the violations A willful safety violation -- and the Judge has already 24 instructed you about this. 25 charge she'll give you, and there is a lot in there, but if I want you to take a look at the Mary A. Schweinhagen (304)347-3188 5953 1 you look at page 41 of the charge, what she'll tell you is 2 that, is that it's not legal just to sit back, for somebody 3 who's running a coal mine just to sit back and let 4 violations happen. 5 the safety laws. 6 There is an affirmative duty to follow She told you specifically, and this is on page 41, that 7 if a person with supervisory authority over a mine knows 8 that something required by the safety laws is not being 9 done, and knowingly, purposely, and voluntarily allows it to 10 continue not being done, then he's willfully violated the 11 mine safety laws. 12 That's what the law says. The defendant knew, of course, that safety 13 violations were happening continually at the UBB mine. 14 knew the mine was breaking the laws on combustible materials 15 over and over and over again. 16 the laws on fresh air in the mine over and over and over, 17 and he knew that the majority of those violations could have 18 been prevented if he had just provided enough coal miners 19 and enough time to follow the law. 20 21 22 He refused to do it. He He knew the mine was breaking That, ladies and gentlemen, means that he personally violated the mine safety laws. The next question: Were the statements that were made 23 in the filings with the SEC and the press release that were 24 issued after the explosion false or misleading? 25 the answer's "yes." Mary A. Schweinhagen And, again, (304)347-3188 5954 1 In the wake of the explosion at UBB with the company's 2 stock crashing, the defendant had a statement prepared to go 3 out to the company shareholders. 4 defendant personally were under an incredible amount of 5 scrutiny. 6 heard about that affected the company; and when this 7 happened, the tragedy at UBB, the horrible safety record at 8 that mine started to come out. 9 The company and the There had been past safety problems that you The statement was an attempt to tamp that down. It 10 said, "We do not condone any violation of MSHA violations, 11 and we strive to be in compliance with all regulations at 12 all times." 13 What a claim. This was a company that the defendant 14 knew had more than 10,000 cited safety violations in 2008, 15 more than 10,000 cited safety violations in 2009, far more 16 than any other coal company in America. 17 UBB, that had more unwarrantable failure orders than almost 18 any other single mine in America, and hundreds of violations 19 of the safety laws every year. 20 This was a mine, That's what -- well, even though the statement included 21 the fact that there had been violations at UBB, it didn't 22 include the number, or the type, by the way. 23 by that point that there had been safety violations at UBB. 24 25 Everybody knew The critical question, the thing people didn't know, was whether the violations had been intentionally tolerated. Mary A. Schweinhagen (304)347-3188 5955 1 And people at the upper levels of the company, people like 2 the defendant, had known about those violations and allowed 3 them to go on. 4 that you want something or that you actively seek it out or 5 promote it. 6 you know about something and, even if you'd rather not have 7 it happen, you allow it to continue anyway for some reason. 8 For example, to make more money. 9 That's what condone means. It doesn't mean The word means something different. It means In other words, if the defendant and his higher-ups at 10 Massey knew that preventable safety violations were going on 11 at UBB -- and they did -- and they didn't stop those 12 violations -- and they did not -- that statement to 13 shareholders was false and it was misleading. 14 Last of the five questions: Was the defendant 15 responsible for the statement? 16 Mr. Taylor's argument a claim or a suggestion that the 17 defendant wasn't responsible for the statements that were 18 made after the explosion; that other people put them 19 together or edited them or revised them; that lawyers looked 20 at them; that they didn't have his signature on them. 21 You heard near the end of Here's what you need to know about that. The Judge, 22 the Judge has instructed you that the defendant did not have 23 to directly make the statement himself to be guilty. 24 enough if he caused it to be made. 25 irrefutable that he caused it to be made. Mary A. Schweinhagen It's And the evidence is (304)347-3188 5956 1 First, he requested that the statement be sent to him 2 for his review. 3 He personally reviewed it. 4 put the statement together. 5 it said what he wanted it to say. 6 Mr. Poma on that. 7 Look at Government's Exhibit 194 on that. You heard that from Mr. Poma who He personally edited it until Again, you heard from And then he personally let it go out. Mr. Poma, the company's chief administrative officer, 8 told you the statement could never have gone out without the 9 defendant personally approving it. He also told you the 10 defendant didn't review things like this lightly. 11 you've seen that from the other evidence in this case. And 12 He reviewed statements like this word by word. 13 heard that in one of the recordings, the defendant going 14 through another SEC filing line by line, word by word, 15 getting it exactly the way he wanted it before it went out 16 under somebody else's signature. 17 18 You All the evidence tells you that the defendant knew what was in that statement. 19 If you had any doubt, remember, he sent it out again, a 20 second time, the next day, the same false claim, even higher 21 up in the statement, more prominent, in a press release that 22 went out to the public. 23 102. 24 But twice, no. 25 That's Government's Exhibit Number If it had only gone out once, maybe it's an accident. I'll quickly go through some of the things that Mary A. Schweinhagen (304)347-3188 5957 1 Mr. Taylor touched on. 2 certainly more than we're going to. 3 Mr. Blanchard our key witness. 4 he were, but he's not. 5 He talked a lot about Mr. Blanchard, Mr. Taylor called Mr. Taylor might wish that Our key witness, so to speak, isn't really a witness at 6 all, it's the documents and the recordings that you've seen 7 and heard over the last few weeks. 8 advantage over witnesses in certain cases: 9 They don't forget. 10 Documents have some They don't lie. They don't change their stories. And the evidence against the defendant in the form of 11 these documents, his own words, both written and spoken, is 12 overwhelming. 13 Mr. Blanchard did say a few things that are worth 14 remembering. 15 is backed up by documents and by other witnesses -- that 16 violations of the safety laws were going to be tolerated at 17 UBB and that the defendant was a part of that understanding; 18 that there was an understanding that it was cheaper to pay 19 the fines than to follow the safety laws at UBB, and that 20 the defendant was a part of that understanding; that there 21 was an understanding that breaking the safety laws was a 22 cost of doing business the way the defendant wanted it done; 23 and that the defendant, beyond just the single example of 24 advance warning at UBB that Mr. Taylor told you about, that 25 the defendant understood that there was a practice of He said there was an understanding -- and this Mary A. Schweinhagen (304)347-3188 5958 1 advance warning of inspectors at UBB and that when the 2 defendant talked to him, talked to Mr. Blanchard about it, 3 he was doing so to make sure that sections underground were 4 warned before inspectors got there. 5 On staffing, the evidence in the case is that Massey 6 staffed its mines with a lot fewer miners than the rest of 7 the industry. 8 needed more people; the mine presidents told Mr. Blankenship 9 that they needed more people; Mr. Ross told the defendant The miners you heard from testified that they 10 that the mines needed more people. 11 he was wrong. 12 willing to pay for it. 13 constant violations that could have been prevented with more 14 people. 15 And nobody ever told him The defendant just told him that he wasn't Miners testified that there were All the evidence in the case on this point tells you 16 that the mine needed more people, and not only did the 17 defendant refuse to provide those additional people, he 18 continued -- or the company continued to slash the number of 19 coal miners at UBB right up until the week before the 20 explosion. 21 On the survey, you heard testimony from Mr. Stewart, 22 "Goose," Stanley Stewart, the last one of the coal miners 23 that we called. 24 concerned about it and others were concerned about it 25 because they didn't believe that it was anonymous. He remembered the survey. Mary A. Schweinhagen He said he was (304)347-3188 They 5959 1 were afraid of retaliation. 2 company worked to know that this was not a serious survey. 3 More propaganda, to use the defendant's word for it. 4 You heard enough about how this I'm short on time, so there are a few more things that 5 I want to mention before, before I sit down and you go to 6 deliberate on this case. 7 First, the case, in a significant way -- and this 8 probably goes without saying -- is about money. 9 understand what was going on at Massey and at UBB, you have 10 to understand that it was all about the money. 11 the key. 12 To The money is You've heard -- from the defense just a few minutes 13 ago, you heard Mr. Taylor say that the defendant didn't want 14 to have safety violations. 15 In a perfect world, the defendant wouldn't have had any 16 safety violations, because safety violations cost money, and 17 he didn't like things that cost him money. 18 Well, that was probably true. So if the defendant didn't want any safety violations 19 and he was the CEO and the chairman of the board of this 20 company, why did they have 10,000 safety violations a year, 21 year after year after year? 22 The answer is money. If the defendant could have had all his mines follow 23 all the safety laws for free, would he have done that? 24 Absolutely. 25 safety laws costs money. But it doesn't work that way. Mary A. Schweinhagen Following the (304)347-3188 5960 1 It takes coal miners to do the construction work in the 2 mine that the defendant hated so much, to build the walls 3 that sent fresh air to where miners were working, to clean 4 up loose coal that can cause fires, coal miners to do safety 5 examinations. 6 isn't free. 7 money and the time necessary to follow them, and that's 8 where the evidence in this case is crystal clear. 9 In other words, following the safety laws It takes a conscious decision to invest the When following the safety laws made financial sense, 10 when there was money in it, then the defendant followed the 11 safety laws. 12 safety laws, the defendant and the "yes" men around him 13 broke the law. 14 But when it made financial sense to break the That's what the evidence tells you. Look at the so-called Hazard Elimination Program, where 15 Massey brought in its managers and told them to stop having 16 safety violations. 17 sentence. 18 referred to in the call where he said he wanted to get some 19 propaganda in there. 20 I emphasize the word "told" in that This is the same program that the defendant I emphasize the word "told" because that's all that 21 happened. 22 violations. 23 to get the people to do that or to find the time to do it 24 and still mine the amount of coal that the defendant wanted 25 them to mine. They told people to stop having safety They didn't tell them where they were supposed Mary A. Schweinhagen (304)347-3188 5961 1 And as a result, safety violations, in fact, went up. 2 They went up from 2008, the year before the Hazard 3 Elimination Program, they went to 2009 when the Hazard 4 Elimination Program or what the company called that was 5 introduced in the middle of the year, and they went up again 6 to over 11,000, again, the most in the country, in 2011. 7 And what you've heard from the miners who worked at 8 UBB, every single one of them who took the stand and 9 testified about it said that they never heard of anything 10 11 called the Hazard Elimination Program. And Bill Ross -- and I won't read through it because 12 time is short -- but look when you get back in the grand -- 13 or in the jury room at Exhibit Number 191. 14 other one of the two most important documents in the case. 15 And what it says, in February of 2010, is "The Hazard This is the 16 Elimination Program was like any other. 17 company wasn't serious about doing the right thing." 18 doing the right thing would have cost money. 19 Just words, and the This case, ladies and gentlemen, in the final analysis, 20 is about accountability. 21 do and what we don't do to follow the law. 22 'Cause We're all accountable for what we Mr. Taylor's right about one thing: It doesn't matter 23 how rich a man is in this country or how poor he is. 24 breaks the law, he's accountable. 25 man is powerful or if he has no power at all. Mary A. Schweinhagen If he It doesn't matter if a If he breaks (304)347-3188 5962 1 2 the law, he's accountable for it. The defendant wants you to believe that he's on trial 3 because he's rich or because he was rude or because he was a 4 tough boss. 5 defendant ran a company that broke the mine safety laws as 6 part of its essential, integral way of doing business. 7 None of that's true. We're here because the In this country, though, in our system, everybody from 8 the chairman of the board down to the employee on the very 9 bottom rung of the ladder is equal in the eyes of justice. 10 They stand equal in judgment before you, the jury, the 11 judges of the facts in this case, no matter how big or how 12 small they are. 13 That man, Don Blankenship, he was a big man, the 14 chairman of the board, the CEO, and he had all the 15 information in the world to tell them that UBB was a run- 16 away train. 17 to it, to put a stop to the vast majority of the law- 18 breaking there and start following the laws that exist to 19 keep coal miners safe at their jobs. 20 He had all the power in the world to put a stop And instead of hitting the brakes, he pushed his foot 21 down as far on the gas as it would go. 22 worry about ventilation at the appropriate time. 23 the time. 24 game is about money. 25 you to do and that is to run coal, run coal, run coal." "Run coal. We'll Now is not We need people who actually understand that this Your job is to do exactly what I tell Mary A. Schweinhagen (304)347-3188 5963 1 And when the unthinkable happened, when his stocks were 2 plunging, when the investigators started digging, when the 3 whole house of cards threatened to come falling down, he 4 lied about it. 5 little more time to make a little more money. 6 Oldest trick in the book. Accountability. Buy yourself a That's what this case is about, ladies 7 and gentlemen. 8 It's time to hold him accountable. 9 on the laws that were supposed to keep the miners safe at Accountability for the things he's done. It's time to convict him 10 UBB and convict him for the lies that he told. 11 on all counts. 12 Justice is waiting. 13 every one of you. 14 done here. 15 Convict him Justice is counting on each and It is long past time for justice to be Thank you, Your Honor. 16 THE COURT: Ladies and gentlemen, in conducting 17 your deliberations and returning your verdict, there are 18 certain rules that you must follow. 19 First, when you go to the jury room, you must select 20 one of your members as your foreperson. 21 preside over your discussions, and speak for you here in 22 court. 23 That person will Second, it is your duty as jurors to discuss this case 24 with one another in the jury room. 25 agreement if you can do so without violence to individual Mary A. Schweinhagen You should try to reach (304)347-3188 5964 1 judgment, because a verdict -- whether guilty or not 2 guilty -- must be unanimous. 3 Each of you must make your own conscientious decision, 4 but only after you have considered all of the evidence, 5 discussed it fully with your fellow jurors, and listened to 6 the views of your fellow jurors. 7 Do not be afraid to change your opinions if the 8 discussions persuade you that you should. 9 to a decision simply because other jurors think it is right 10 But do not come or simply to reach a verdict. 11 Third, if you need to communicate with me during your 12 deliberations, you can send a note to me through the court 13 security officer, signed by your foreperson. 14 as soon as possible, either in writing or verbally in open 15 court. 16 including me -- how your vote stands numerically. I will respond Remember that you should not tell anyone -- 17 Fourth, your verdict should be based solely on the 18 evidence and on the law which I have given to you in my 19 instructions. 20 must be unanimous. 21 to suggest what your verdict should be. 22 for you to decide. 23 The verdict, whether guilty or not guilty, Nothing I have said or done is intended That is entirely During your deliberations, you must not communicate 24 with, obtain, or provide any information to anyone by any 25 means about this case. You may not use any electronic Mary A. Schweinhagen (304)347-3188 5965 1 device or media, such as a telephone, cell phone, Smart 2 phone, iPhone, BlackBerry, or computer, the Internet, any 3 Internet service, or any text or instant messaging service, 4 or any Internet chat room, blog, or website, such as 5 Facebook, Myspace, LinkedIn, YouTube, or twitter, or 6 communicate to anyone or obtain any information about this 7 case, or conduct any research about this case until after I 8 accept your verdict. 9 Finally, the verdict form is simply the written notice 10 of the decision that you reach in this case. 11 this form to the jury room, and when each of you has agreed 12 on the verdict, your foreperson will fill in the form, sign 13 and date it, and advise the court security officer that you 14 are ready to return to the courtroom and return -- and 15 report your verdict. 16 You will take Ladies and gentlemen, I am about to release you to give 17 consideration of your verdict. 18 all exhibits which have been admitted into evidence. 19 are the only exhibits that I can provide to you during the 20 course of your deliberations. 21 you with other exhibits. 22 Those I will not be able to provide I also will not be able to repeat any testimony for 23 you. 24 the testimony in this case. 25 The clerk will bring to you You will have to use your collective memory to recall When you begin your deliberations, I am not likely to Mary A. Schweinhagen (304)347-3188 5966 1 interrupt you, so what that means is that if you want a 2 break or you want to go home, you will need to send a note 3 to me signed by your foreperson. 4 The court security officer will be close to your door. 5 If you knock on the inside of your door, the court security 6 officer will hear you and will respond to whatever your 7 needs are. 8 9 So if you have any questions about a break or anything of that nature, remember that you will need to send me a 10 note. 11 because I will not know where you are in your deliberations 12 and I don't want to interrupt that. 13 I will not interrupt you unless it's very late simply The other thing that the clerk will bring to you is my 14 charge, or the instructions that I read to you, together 15 with the exhibit that I told you contained the mandatory 16 safety regulations. 17 should apply that charge or those instructions as a whole. 18 Do not single out any one instruction to the exclusion of 19 the others. 20 I would simply say to you that you And she will bring to you the jury verdict form. It's 21 self-explanatory. 22 and Count Three, you will have choices in the margin where 23 you check whatever your decision is with respect to those 24 counts. 25 With respects to Counts One, Count Two, After you've done that, it needs to be signed by your Mary A. Schweinhagen (304)347-3188 5967 1 foreperson and dated and, again, you would knock and let the 2 court security officer know that you are ready to return 3 your verdict. 4 Ms. Cunningham, Ms. Burgy, and Ms. Spencer, you are our 5 alternate jurors. 6 you play. 7 the event something occurred that they could not complete 8 their service. 9 going to release you with the instruction that you continue It is an extremely important role that You would replace one of the other 12 jurors in So although I'm going to release you, I'm 10 as you have: 11 or permit anyone to discuss it with you or in your presence; 12 do not read, listen to, or view any media coverage that 13 there might be of the trial. 14 That you do not discuss this case with anyone I do that so that if something happens in your role as 15 alternates you would be able to fill in. 16 contact you when we release the ladies and gentlemen of the 17 jury from any further deliberation, and at that time you 18 would be released from my order. 19 My office will In the meantime, I ask that you keep my orders so that 20 if the need arises for you to replace one of these jurors, 21 you can be brought up to speed very quickly, and you will be 22 in the same position as you are when you leave here today. 23 Do the three of you understand that? 24 RESPONSE: 25 THE COURT: Yes, ma'am. All right. Mary A. Schweinhagen I appreciate that. (304)347-3188 With 5968 1 that, I want to thank you for your service thus far, and I'm 2 going to release you, Ms. Cunningham, Ms. Burgy, and 3 Ms. Spencer, with my thanks and thanks of all of the parties 4 in this case. You all are free to go. 5 THE JUROR: Leave? 6 THE COURT: Yes. 7 8 Thank you. Ms. Spencer, you can leave your note pad in the jury room. 9 THE JUROR: Okay. 10 THE COURT: For the rest of you, ladies and 11 gentlemen, I release you at this time to give consideration 12 of your verdict. 13 (The jury left the courtroom at 3:56 p.m.) 14 THE COURT: 15 16 17 18 All right. Mr. Delinsky, you had objections to closing. MR. DELINSKY: Thank you, Your Honor. May it please the Court. I had gone through a number of, of grounds for the 19 motion we made pertaining to the Government's closing 20 argument, a motion for mistrial or, in the alternative, for 21 curative instructions. 22 I would like to expand the basis of that motion at this 23 point to include the Government's rebuttal argument as well. 24 And I would like to set forth some additional points 25 regarding the grounds I've already raised as well as some Mary A. Schweinhagen (304)347-3188 5969 1 wholly additional grounds for this motion for mistrial or, 2 in the alternative, for curative instructions. 3 4 One of the grounds for the mistrial was a statement in the Government's -- 5 THE COURT: I'm sorry. Excuse me just a moment. 6 Kierstin, will you get the jury verdict form. 7 Go ahead, sir. 8 9 MR. DELINSKY: As I told the Court previously, the defense objects to the statement made in the opening portion 10 of the Government's closing argument to the effect that Don 11 Blankenship violated every criminal mine safety law in the 12 books. 13 statement, the crux of which is it mischaracterized the, 14 the -- it mischaracterized the substance of citations and 15 orders. 16 they're not. 17 We set forth the basis of our objection to that It characterized them as criminal when, in fact, The, the problem with the, the Government's 18 characterization of citations and orders was made even more 19 pernicious and acute in the Government's rebuttal argument. 20 In rebuttal argument, the Government went so far as to state 21 that the unspoken understanding at issue in here is the 22 foundation of the Government's theory of conspiracy was 23 based on citations and orders. 24 25 The Government repeatedly referred to, to law-breaking in connection with the citations and orders to encourage the Mary A. Schweinhagen (304)347-3188 5970 1 2 jury to convict. The core point here, Your Honor, in addition to the 3 ones raised previously, is that citations and orders, number 4 one, were not admitted for the truth. 5 Government stands up and argues that they, they form the 6 basis of an agreement, they are being used for the truth. 7 That is a basis for a mistrial. 8 9 But when the Number two, we have asked that this jury be instructed on what citations and orders are. This is a legal question. 10 It's not a matter of interpreting evidence. 11 orders that were issued to this mine and to the other Massey 12 mines and other mines throughout the country are not 13 criminal in nature; and if the Court's not going to grant a 14 mistrial based on the Government's use of these citations 15 and orders, both for the truth and as if they were criminal 16 in nature, then a curative instruction clearly instructing 17 the jury about what citations and orders are and instructing 18 the jury that they are not criminal is necessary. 19 Citations and Your Honor, I put, in addition to others, an argument 20 on the record in support of this motion based on the 21 Government's common argument on Mr. Blankenship's 22 compensation and the method and form in which that was 23 argued in the opening portion of the Government's closing 24 argument. 25 These same points were echoed in the rebuttal argument, Mary A. Schweinhagen (304)347-3188 5971 1 so the same objections pertain to how Mr. Blankenship's 2 compensation was improperly used in the Government's 3 rebuttal argument as well. 4 In this regard, Your Honor, we ask that the Court order 5 the Government to put it -- to file its slides in the record 6 so that they, they -- so that they are in the record and 7 available should they be necessary. 8 9 To the extent the Court does not grant a mistrial, which we think is the proper remedy here, we would ask the 10 Court to provide a, a curative instruction based on these 11 improper arguments on compensation, instructing the jury 12 that Mr. Blankenship's compensation is not a basis for 13 conviction and that the jury may not convict Mr. Blankenship 14 on the ground that he could have spent his own money -- he 15 could have spent his own money on safety, or to give any 16 consideration to whether he could have spent his own money 17 on safety. 18 compensation evidence. 19 That is -- was a completely improper use of the In the opening portion of the Government's closing 20 argument, Your Honor, there was a reference to the 21 illegality of advance notice under Section 820. 22 Mr. Blankenship, of course, is not charged with -- charged 23 under the advance notice provision of Section 820. 24 25 Advance notice is incorporated into the charges here as part of a conspiracy to defraud under Section 371. Mary A. Schweinhagen (304)347-3188 We've 5972 1 raised this issue before. 2 charged here, because the argument varies from the 3 indictment, it's another ground for a mistrial, and we'd 4 renew our request for defendant's proposed Instruction 5 Number 79, which would explain to the jury that this advance 6 notice statute is not at issue here. Because that statute wasn't 7 In the absence of such an instruction, there is a risk 8 that any conviction, should there be one, would be based on 9 a statute not charged in the indictment, not considered in 10 the Grand Jury. 11 Your Honor, we object to the Government's use in the 12 opening portion of its closing argument to the testimony of 13 Stanley Stewart. 14 testimony in which he, he indicated that he spoke out in 15 order to explain why the mine blew up and why people lost 16 their lives. 17 that testimony, is unfairly prejudicial. 18 to any of the charges in this case. 19 our view, it runs afoul of the Court's rules on what is 20 permissible in this case and what is not permissible in this 21 case. 22 Specifically to the portion of his That argument, and highlighting the portion of It's not relevant It is inflammatory. In This, this prejudice was compounded by the Government's 23 discussion of an audio recording, and characterizing it has 24 shown a lack of compassion by Mr. Blankenship for an injured 25 or sick or hurt miner. Mary A. Schweinhagen (304)347-3188 5973 1 This case isn't about compassion or lack of compassion. 2 And, again, these arguments were made to inflame the 3 passions of the jury. 4 And in the factual back drop of this case, especially in 5 light of the condition of Count One with Counts Two and 6 Three, these are unfairly prejudicial and require a mistrial 7 or, at a bare minimum, a curative instruction. 8 9 10 They are not relevant to any charge. This prejudice was enhanced as well by a slide and argument on ignition sources in addition to that. Your Honor, in the Government's -- the opening portion 11 of the Government's closing argument, it referred to the 12 number of citations and orders as overt acts in furtherance 13 of the conspiracy. 14 and orders were not introduced for the truth. 15 be considered as overt acts. 16 that ground as well or, in the alternative, a curative 17 instruction. 18 Once again, Your Honor, the citations They cannot We'd ask for a mistrial on In the Government's closing argument, Your Honor, the 19 Government argued that the shareholder statement caused the 20 stock to level off. 21 simple. 22 Mr. Torchio's own chart, demonstrative chart showed that. 23 That was false. 24 evidence. 25 a mistrial is required or, at a minimum, a curative That was a false statement, plain and The stock leveled off the day before. Those demonstrative charts are not in That was mischaracterization of the evidence, and Mary A. Schweinhagen (304)347-3188 5974 1 instruction. 2 Your Honor, we object to the portion of the 3 Government's rebuttal closing in which the Government 4 attorney asked the jury to picture various conditions of the 5 mine. 6 could be deemed to be proper in the first place, it was 7 based on an exaggeration of the testimony and it departed 8 from the record. That was improper argument. And to the extent it 9 Your Honor, in the Government's -- the rebuttal portion 10 of the Government's closing argument, the Court's definition 11 of willfulness was quoted to the jury. 12 we've objected to, to that definition of willfulness under 13 Section 820(d). 14 read that language, some of the language that we objected 15 to, to the jury, we believe, at a minimum, an instruction is 16 necessary to differentiate between the specific intent 17 required for conspiracy and the lesser standard for intent 18 that the jury's been instructed on regarding 820(d). As Your Honor knows, However, in light of the fact that Mr. Ruby 19 I made that request yesterday, but by virtue of how the 20 Government has used that instruction, we submit that such an 21 instruction is necessary now. 22 Your Honor, in the Government's rebuttal closing 23 argument, it argued that the statement at issue in Counts 24 Two and Three was false by virtue of the number of 25 citations. We seek a mistrial on that ground as well or, at Mary A. Schweinhagen (304)347-3188 5975 1 a minimum, a curative instruction. 2 improper for several reasons: 3 4 5 Number one, it uses the citations and orders for their truth. They were not admitted for that purpose. Number two, that varies from the theory set forth in 6 the indictment. 7 indictment was linked to Count One. 8 violations. 9 This argument was The theory of falsity set forth in the It was to willful It was not based on citations and orders. And number three, Your Honor, as the testimony in this 10 case established, the number of citations and orders were 11 publicly available information. 12 to the statement. 13 definition and as a matter of law cannot form the basis of a 14 1001 claim or a 10(b)(5) claim as pled in Count Three. 15 16 17 They were reported on prior They were available on websites. They by So for those grounds we'd seek a mistrial as well or, in the alternative, some type of curative instruction. Finally, Your Honor, in closing as to this motion, I 18 would just note that the Government repeatedly, time and 19 again, in both portions of its closing argument, argued the 20 citations and orders for their truth as proof of, 21 quote-unquote -- proof that, quote-unquote, safety 22 violations in fact occurred. 23 The Government asked the jury to use those citations 24 and orders for their truth in one way or the other. 25 flagged several instances of that, Your Honor, but it Mary A. Schweinhagen (304)347-3188 I 5976 1 happened time and again. 2 evidence which Your Honor admitted, over defense objection, 3 exclusively for state of mind. 4 truth. 5 This -- the quantity of evidence and the argument made on 6 these citations and orders no longer is in the realm where 7 fairness can be preserved by a curative instruction. 8 9 10 11 That is an improper use of that They were not admitted for We seek a mistrial on that ground as well, as well. Those are the bases of our motion for a mistrial and for a curative instruction based on the Government's closing argument, Your Honor. We also have some issues to raise with regard to the 12 final jury instructions given to the jury, that we attempted 13 to raise before. 14 objection and asked us to wait until after closing. 15 Your Honor, I believe, preserved our THE COURT: I did. I did preserve your objection. 16 We argued those on yesterday evening at some length, 17 including similar instructions that were filed yesterday 18 morning. 19 I will hear you on that briefly, but I want to hear the 20 Government's response with respect to the various motions 21 for mistrial based on the closing arguments at this time. 22 MR. RUBY: Thank you, Your Honor. I'm going to -- 23 and I've got two sets of notes here, one from earlier at the 24 bench and then ones from comments that Mr. Delinsky made 25 just now. I am going to start with the ones that were Mary A. Schweinhagen (304)347-3188 5977 1 2 discussed earlier. I think the first complaint from the defense has to do 3 with the reference in the initial opening statement to 4 disclosure of the Ross memorandum or information from the 5 Ross memorandum. 6 the Ross memorandum was not admitted for the truth. 7 The objection, as I understand it, is that The response to that, Your Honor, is that the Ross 8 memorandum or the contents of the Ross memorandum is still 9 relevant, or at least potentially relevant. The jury could 10 find that it is material information to investors or that, 11 that the information contained therein is, is necessary to 12 complete the statements that were made because of the, 13 because of the fact that it provided notice. 14 In other words, the, the significance, or part of the 15 significance of the Ross memorandum is the notice that it 16 provided to the defendant and to others who received it. 17 And the fact that -- the fact in the wake of the explosion 18 that the defendant and others had received that notice, 19 that's information that very well could -- that the jury 20 very well could find to be material to investors. 21 no unconstitutional variance here. 22 There's I think the third point of Mr. Delinsky's argument is 23 that there is no duty to disclose that statement. 24 Mr. Delinsky makes reference -- and we've had this 25 discussion before -- to securities law. Mary A. Schweinhagen And I don't know that (304)347-3188 5978 1 2 there's a specific aspect of it. Our position is that the, is that the information or at 3 least parts of the information that was contained in that 4 memorandum, and notice that was given to the defendant and 5 others, and the fact that that notice had been given to the 6 defendant and to others could be information, could be 7 information that the jury could find had to be disclosed in 8 order to make the statements that were made not materially 9 misleading. 10 The second point that Mr. Delinsky raised -- and this 11 one he touched on again in the argument that he just made -- 12 is the reference to violated every criminal mine safety law 13 in the book. 14 issue that crops up at various points in Mr. Delinsky's 15 arguments. 16 seems to be, unless I'm misunderstanding him, assuming that 17 every reference the United States makes to violations means 18 a reference to -- is a reference to citations. 19 not necessarily true. 20 Here, the argument -- and I think this is an And I want to make this clear. Mr. Delinsky And that's Again, the defense seems to be forgetting the testimony 21 of the dozen or so coal miners who came into court and 22 testified before the jury about routine willful violations 23 at the Upper Big Branch mine that they had firsthand 24 knowledge of, violations that many of them testified were 25 chronic, were continual, went on virtually every day, every Mary A. Schweinhagen (304)347-3188 5979 1 2 shift that they worked at the mine. And so there is, there is abundant evidence in this 3 case of violations of the mine safety laws. 4 It doesn't have anything to do with -- let me correct that. 5 It's independent of citations and orders that were issued at 6 the mine. 7 It's firsthand. Now, there are instances where the Court will recall 8 witnesses -- a witness looked at a specific citation or 9 order and confirmed that that was consistent with the kinds 10 11 of violations that they observed firsthand. But my basic response to this, Your Honor, is that I 12 don't believe the statement that the defense takes issue 13 with actually suffers from the defect of the defense claims. 14 In other words, it's not a statement that is about citations 15 or orders; it's a statement that's about violations. 16 there is independent, firsthand evidence of chronic willful 17 safety violations in this case. 18 And The third point that Mr. Delinsky raised at the bench 19 has to do with a slide about the defendant's duty. 20 believe -- I think this is fair argument from the jury 21 instructions with respect to the duty that a person with 22 supervisory authority over the mine has to -- has with 23 respect to safety violations that that person knows are 24 occurring. 25 and I'll apply the same response to the complaint that I don't So I think it's a correct statement of the law, Mary A. Schweinhagen (304)347-3188 5980 1 Mr. Delinsky had about the -- my discussion of the jury 2 instruction on the willfulness issue in the rebuttal 3 closing. 4 Number four, this is the compensation issue. The 5 discussion here about the amount of the defendant's 6 compensation, the point of the discussion is that the 7 company -- or the point of the argument, and it's fair 8 argument, is that the company had resources to hire 9 additional miners. The company had resources that it used 10 in a variety of ways, some of those resources that it used, 11 some of those resources that it used on the defendant's 12 compensation. 13 But to the extent there is any suggestion that -- there 14 has been suggestion in cross-examination certainly that in 15 order to, to operate a functioning business, the company 16 couldn't -- the company had to make certain trade-offs or 17 choices about how it was going to spend its resources. 18 There is a viable argument as to whether or not resources 19 that were devoted to the defendant's compensation could have 20 been devoted instead to, to following the mine safety laws. 21 And there's nothing inappropriate about that. 22 The -- I think that's the end of what we discussed at 23 the bench with the jury in the courtroom, Your Honor, 24 earlier. 25 The new arguments, the first note that I have is a Mary A. Schweinhagen (304)347-3188 5981 1 complaint about -- that Mr. Delinsky made about discussion 2 of unspoken understanding, and, again, this being based on 3 citations and orders. 4 that, that he has in mind. 5 violations in the rebuttal closing, which, at least some of 6 which relates to the -- what I discussed earlier, the 7 violations, the evidence of violations that exist in the 8 case in the form of firsthand testimony from witnesses at 9 the mine, willful violations that they testified to. I'm not sure the specific reference There was discussion of, again, 10 There is a role for -- an appropriate role for the 11 citations and orders in the jury's consideration of the 12 understanding that existed here because the citations and 13 the orders go to the issue of notice. 14 through this before, and I won't belabor it, but there's 15 evidence in the case, firsthand evidence about what happened 16 at the mine. 17 that exists here. And we've been That's one component of the chain of proof 18 And then there's further evidence about the information 19 that was conveyed to the defendant, notice that was provided 20 to the defendant, and there's information or documents in 21 evidence, testimony in evidence about how notice of what was 22 going on at the mine was conveyed to, to the defendant. 23 And so in that context, or for that purpose, it's not 24 inappropriate to, to discuss citations and orders in the 25 context of the information that the defendant received and Mary A. Schweinhagen (304)347-3188 5982 1 how that figured into the existence of the unspoken 2 understanding that existed at the company. 3 There's a, another objection that Mr. Delinsky raised 4 on the compensation issue. 5 to rebuttal closing. 6 ago. 7 THE COURT: I think this one is with respect The -- and I know it was 20 minutes His objection, I believe, was based on 8 your argument for a company that had blah, blah 9 compensation, and the defendant whose compensation was blah, 10 blah, that they could not afford $65,000 for a miner on a 11 section. 12 MR. RUBY: Yes, Your Honor. And the argument here 13 would be the same, that it's fair to make argument about the 14 company's decision about with respect to allocation of 15 resources when there's evidence that the defendant knew that 16 there were routine violations of safety laws going on. 17 THE COURT: I think the argument also, counsel, 18 was that your argument implied to the jury that the miner 19 could be purchased with Mr. Blankenship's personal 20 compensation. 21 22 23 MR. RUBY: And I don't believe that's the case, Your Honor. THE COURT: Well, I don't know that that's what 24 you meant, but I believe that that was part of the argument 25 that was made. Mary A. Schweinhagen (304)347-3188 5983 1 MR. RUBY: 2 that is part of the argument. I agree with that, Your Honor, I think 3 THE COURT: 4 MR. RUBY: All right. I don't believe that is -- well, not 5 the interpretation that I intended. 6 that I said it in that way, and -- 7 THE COURT: I don't believe that, I'm not saying that you did, counsel. 8 I just want you to be able to fully respond to what I 9 understood the argument to you. 10 MR. RUBY: Thank you, Your Honor. And my response 11 was that that was -- whether or not Mr. Delinsky perceived 12 it that way, that was not, that was not the argument. 13 There's no curative argument that's required here. 14 was fair argument about the company's allocation of 15 resources. 16 There The illegality of advance notice in the initial 17 opening. 18 motion in limine. 19 for the purpose of willfulness. 20 purpose. 21 since, circumstances since the Court made that ruling, and 22 so there is no basis for a mistrial or for a curative 23 instruction. 24 25 This is in evidence. It's been the subject of a The Court ruled that it was admissible It's relevant for that There hasn't been any change or circumstances With respect to Stewart, this is, as the Court may -Mr. Stewart and the particular testimony about why Mary A. Schweinhagen (304)347-3188 5984 1 Mr. Stewart gave his testimony in Congress, again, the Court 2 will recall that this is testimony that was elicited by the 3 defense, or, I am sorry, it was in response to impeachment 4 on cross-examination in which the defense attempted to 5 impeach Mr. Stewart with regard -- well, the defense crossed 6 Mr. Stewart and crossed him on what I believe to be bias 7 based on the suggestion either that he was, that he was -- 8 his affiliation with the United Mine Workers that the 9 defense attempted to suggest or that he was seeking 10 publicity by testifying before Congress. 11 done in cross-examination. 12 That was, that was I think that the testimony that Mr. Goodwin showed was 13 elicited in response to that in redirect examination, but 14 it's not -- it's in evidence. 15 was even an objection to it at the time. 16 I don't believe that there And there's nothing inappropriate about, there's 17 nothing inappropriate about the argument here, particularly 18 since this was a response to a defense attempt to, to show 19 bias on the part, or improper motive on the part of an 20 important Government witness. 21 The, the discussion of the recording which Mr. Delinsky 22 characterized as showing a lack -- characterized the 23 discussion of being about a lack of compassion on the part 24 of the defendant. 25 defendant saw this issue as being about money. Again, this is fair argument. Mary A. Schweinhagen The It's (304)347-3188 5985 1 significant, the issue about motive and the, the extent to 2 which the defendant perceived issues of safety compliance is 3 really being about money. 4 case. 5 It's an important issue in the And this is fair argument that the defendant saw the 6 issues that arose from the Ross memo, and safety issues more 7 generally, as being about money and the possible 8 consequences to the company in litigation. 9 The slide on ignition sources, I don't believe that 10 there is anything beyond -- anything about that portion of 11 the initial opening that goes beyond what's in evidence 12 about ignition sources. 13 that. 14 There's evidence in the case about Again, it is fair argument about safety hazards that 15 exist in coal mines and about, about the significance of 16 safety regulations that exist with respect to those hazards. 17 The next point that I have for Mr. Delinsky is arguing 18 citations and orders as overt acts. 19 what language he's referring to, but I think this is another 20 example or another case where, where what we're talking 21 about is violations. 22 I don't know exactly And as I've said before, there is -- it's part of the 23 indictment and it's part of our theory of the case that 24 specific violations that occurred at the Upper Big Branch 25 mine, insofar as they're proved by, by miners who have Mary A. Schweinhagen (304)347-3188 5986 1 firsthand testimony on that, were, or at least many of 2 those, were overt acts in furtherance of the conspiracy. 3 I don't think there is anything improper there. 4 The next point I had for Mr. Delinsky is that the 5 shareholder statement called -- the statement or the 6 discussion in the initial closing about the shareholder 7 statement causing the stock -- the drop in the stock price 8 to level off. 9 He says that the statement is false. 10 Mr. Delinsky disagrees with the statement. In fact, as I recall the testimony of the chart and the 11 testimony of Mr. Torchio, the testimony of Mr. Torchio was 12 that there was no statistically significant drop in the 13 stock price between the filing of the statement to 14 shareholders on the evening of April the 8th and the, and 15 the April 30th, or something like that, disclosure of an 16 existence of an FBI investigation. 17 fair characterization of that point and argument. 18 So And so I think that's a Mr. Delinsky takes issue I think with the notion that 19 the shareholders statement and the contents of the 20 shareholders statement had anything to do with the, the fact 21 that the stock price stopped dropping and didn't have any 22 statistically significant declines after the statement of 23 shareholders was released. 24 25 I take it that his argument is that there was also another statistically significant drop on the day that that Mary A. Schweinhagen (304)347-3188 5987 1 statement was released, but I don't think that that fact, 2 which is on the chart and in evidence, I don't think that 3 that makes it inappropriate to observe an argument that, for 4 statistical purposes anyway, the stock price remains stable 5 after or between the filing of the shareholders statement 6 and the, the disclosure of the FBI investigation. 7 In rebuttal, or with regard to rebuttal, Mr. Delinsky 8 takes issue with the argument asking the jury to picture 9 various aspects of the evidence. I don't believe it's 10 inappropriate argument. 11 exaggeration of the testimony or any departure from the 12 record. 13 14 15 I don't believe there was any I'm not -- certainly not aware of any departure from the record with respect to that aspect of the argument. On the issue of willfulness, I've touched on this 16 already. 17 difference between a conspiracy and intent and all that. 18 Mr. Delinsky would like instruction on the We've talked about this yesterday evening, Your Honor. 19 That's already in there. 20 least what was yesterday page 20 or 21 of the charge, the 21 discussion or the distinction between -- or the two types of 22 intent that the jury has to find. 23 problem with the instructions on that point. 24 25 I think it's on page 20, or at I don't think there's any Argument that the statement or the use -- the discussion of citations and orders with respect to Counts Mary A. Schweinhagen (304)347-3188 5988 1 Two and Three, and the argument here is that this uses those 2 citations and orders for the truth. 3 Again, the Court has issued the citations and orders 4 properly for a number of purposes that are pertinent to, 5 relevant to Count Two and three, including notice that the 6 defendant had motive, willfulness. 7 inappropriate to discuss, to discuss a number of citations 8 and orders with respect to, to the defendant's knowledge or 9 to the elements of Counts Two and Three. 10 And so it's not And then the last point is a broad point, a general 11 point that, again, about the notion that the -- that we have 12 argued citations and orders for the truth. 13 I believe we have been careful to avoid that. I think 14 some of the confusion may be what I discussed at the outset, 15 the conflation of references to violations, or the 16 assumption that any reference to a violations means 17 citations and orders. 18 But there is, as I said at the beginning, a great deal 19 of evidence in the case about violations that comes from 20 firsthand witnesses, which the defense, in closing at least, 21 has denied exists, but it does exist. 22 violations are properly founded based on that, based on that 23 evidence. 24 25 And so references to Have I covered everything the Court has Your Honor? THE COURT: I believe so, counsel. Mary A. Schweinhagen All right. (304)347-3188 5989 1 Let me say, first of all, that in closing argument you 2 lawyers are permitted to argue the facts as well as the fair 3 inferences from the facts. 4 When I listened to Mr. Delinsky's arguments here at the 5 bench, which took place immediately after Mr. Goodwin's 6 argument while the jury was still seated -- and I've 7 listened to his argument as well as to Mr. Ruby's 8 argument -- I find that there was no closing argument that 9 was not based on the facts, a fair inference of those facts 10 that are in evidence, or any argument which misstated the 11 law. 12 There has been a good deal of argument about the fact 13 that the citations were argued for the truth of what was 14 contained in them when they had been admitted for a limited 15 purpose. 16 And Mr. Delinsky is correct that those documents were, 17 in fact, limited, as was the information regarding the 18 number of citations. 19 number of occasions that that information was limited -- was 20 admitted for a limited purpose. 21 not go outside of that. 22 The jury has been instructed on a I find the arguments did I find no reason, based on the arguments that I've 23 tried to listen to here carefully, to grant a mistrial as a 24 result of the Government's opening closing argument to the 25 jury or the rebuttal. Mary A. Schweinhagen (304)347-3188 5990 1 In making that finding, I take into consideration the 2 arguments regarding citations, which is an overarching theme 3 throughout the course of these arguments. 4 has -- I think you are correct in stating, Mr. Ruby, some 5 confusion between statements regarding violations and 6 evidence. 7 miners about violations that they personally observed. 8 There was -- there were questions of these miners -- they 9 examined citations and they were asked whether or not the 10 conditions in those citations were consistent or not with 11 what they observed on their time in the mine. 12 was firsthand information. 13 I find that there There was lots of evidence in this case from Again, that I do not believe there's been any argument regarding 14 citations that exceeds the purpose for which I admitted them 15 into evidence. 16 With respect to that issue and the other matters that 17 were argued, I find that there's been no fatal variance in 18 terms of the arguments that were made. 19 unfair prejudice to Mr. Blankenship which would result in a 20 mistrial being granted. 21 I also find no I also include in my finding the arguments that have 22 been made regarding the compensation or financial status of 23 the company as well as the financial status of the 24 defendant, Mr. Blankenship. 25 that there was an argument or a fair inference that could be I do not believe, Mr. Delinsky, Mary A. Schweinhagen (304)347-3188 5991 1 drawn from the argument that I heard that the compensation 2 for hiring a miner for each section could be drawn from the 3 defendant's personal compensation. 4 I also give consideration to the testimony from 5 Stewart, the testimony or the argument regarding the stock 6 prices leveling off, the slide with respect to the ignition 7 sources. 8 9 The fact that Mr. Ruby made argument about picturing certain things that he claimed to have been part of the 10 evidence, I find, based on listening to that and listening 11 to your arguments, that that argument was related to actual 12 evidence or fair inferences from the evidence. 13 14 Again, no variance as it has been argued or unfair prejudice to the defendant. 15 There has also been argument made that the citations 16 were argued to be criminal in nature. 17 what I heard, I believe that went to violations, 18 Mr. Delinsky, not as to the citations. 19 been evidence in this case that supports the fact that the 20 jury could consider firsthand testimony regarding 21 violations. 22 And, again, based on And, again, there's I find that there has been no repeated argument of 23 citations being used for the truth of what's contained in 24 them. 25 There was argument regarding the Court's instruction as Mary A. Schweinhagen (304)347-3188 5992 1 to willfulness. 2 We did discuss that last evening in making an effort to 3 settle the charge, for me to listen to your various 4 objections with respect to the charge. 5 Part of it was, in fact, read to the jury. In an effort to be cautious in light of the argument 6 that was made last evening that the Fourth Circuit case of 7 Jones had -- that opinion had been written and the 8 definition of willfulness that was drawn from that case had 9 been written by the Court prior to the United States Supreme 10 11 Court case of Ratzlaf. I took a look at that opinion, and that Supreme Court 12 opinion almost expressly limits the definition of 13 willfulness that's given in that case to the particular 14 statute that was under consideration in that case. 15 Court in that particular opinion, very early on in the 16 opinion recognized that there were a number of different 17 definitions for willfulness, and it was clear from the 18 opinion that the language used in that case was used related 19 to the particular statute that was under consideration. 20 The So I find that the definition of willfulness that's 21 given in the instructions is appropriate. 22 Ratzlaf Supreme Court opinion in no way impacts that, and 23 that there was nothing inappropriate or improper about 24 reading from the Court's instruction on willfulness. 25 I find that the Again, giving consideration to all of the arguments Mary A. Schweinhagen (304)347-3188 5993 1 that have been made relative to the closing arguments, I 2 find no support for this Court to give a curative 3 instruction or to grant a mistrial. 4 the argument was all based on the evidence or fair inference 5 from it and no misstatement of the law. 6 And, again, I find that I preserve Mr. Blankenship's objection and exception to 7 my denial of the motion for mistrial and to denying the 8 motion for curative instructions based on various aspects of 9 the closing arguments made by the Government. 10 Mr. Delinsky, I will hear you briefly with respect to 11 the jury instruction issues you want to raise. 12 was a deadline for jury instructions. 13 instructions filed last -- or yesterday during the course of 14 the day. 15 instructions at some length last evening. 16 to belabor the point, but I want you to be able to make 17 brief objections if you have them. 18 MR. DELINSKY: Long after the deadline. Again, there There were jury And we covered jury So I do not want Your Honor, briefly, and just so 19 the record's clear, I did endeavor to make these objections 20 immediately after the Court's charge to the jury this 21 morning. 22 23 The defense -THE COURT: Yes, sir. And I, I want to confirm on 24 the record that you did that. 25 and the jury was in the box, I thought it would be better to And because it was going on Mary A. Schweinhagen (304)347-3188 5994 1 2 do it after you all finished your closings. Go ahead, please. 3 MR. DELINSKY: The defense renews all of our 4 objections to the Court's instructions that we asserted 5 yesterday. 6 language included in the instructions, as well as our 7 objections based on proposed language that the defense 8 submitted that the Court did not include in the 9 instructions. 10 This includes our objections based on the Without repeating the objections, Your Honor, there are 11 a few issues that we noticed as the Court read the 12 instructions that we wish to raise. 13 Number one, there was no definition of willfulness as 14 to Count Three. 15 morning, willfulness was defined as to Count One and as to 16 Count Two but not as to Count Three. 17 As we heard the Court's instructions this Your Honor, on page 34, there was an issue that we had 18 discussed yesterday -- I'm sorry. 19 wrong page, Your Honor. 20 I have the wrong, the In connection with the charge on Count Three, dates 21 were transposed. 22 think the fix didn't make it into the final charge. We talked about that yesterday, and I just 23 THE COURT: 24 MR. DELINSKY: 25 specific page. All right. I'll direct the Court to the It's on page 33 of the Court's instructions. Mary A. Schweinhagen (304)347-3188 5995 1 The two prongs of the allegedly false statement are split up 2 with, with a date, one is attributed to April 8th and one is 3 attributable to April 9th. 4 THE COURT: 5 MR. DELINSKY: 6 this last night. 7 8 All right. When, in fact -- we talked about I'm sure it was just a scribner's issue. MR. RUBY: I have it on 34, Your Honor, if the Court's looking for it. 9 THE COURT: 10 Um-hmm. MR. DELINSKY: Your Honor, the other issue is we 11 talked last night about a unanimity instruction as to the -- 12 in connection with Count One as to the Section 800 -- 820(d) 13 object on the one hand and the conspiracy to defraud object 14 on the other, and we noticed that that unanimity instruction 15 was not included in what the Court read to the jury this 16 morning. 17 There was a unanimity instruction to the two subparts 18 of the second object of the conspiracy, but there was not 19 one as to the two objects themselves. 20 objection on that ground. 21 22 So we would assert an Your Honor, on page 39 -THE COURT: When you say that, I want to make sure 23 that I understand you, Mr. Delinsky. 24 an argument last evening that the Government would be 25 required to prove both of those objects. Mary A. Schweinhagen You made, I believe, And you are saying (304)347-3188 5996 1 that in addition to, or is that the same argument? 2 addition to, we discussed the unanimity that was not 3 included in the charge. 4 to make sure I understand your argument. 5 6 MR. DELINSKY: In Is that what you're saying? I want I apologize if I was not clear, Your Honor. 7 THE COURT: 8 make sure that I understand it. 9 Well, it may not be you, but I want to MR. DELINSKY: My understanding -- we did object 10 to the portion of the instruction which permits the jury to, 11 to convict based on one object or the other rather than both 12 together. 13 objection to that language. 14 My understanding is the Court overruled our We stand on that objection. In the alternative, however, we requested last night a 15 unanimity instruction. 16 has instructed the jury, is permitting the jury if it finds 17 guilt beyond a reasonable doubt to convict on one object or 18 the other, it has to be advised that they have to be 19 unanimous as to that object. In other words, if the Court, as it 20 THE COURT: 21 MR. DELINSKY: All right. Lastly, Your Honor -- and this is 22 another one we talked about last night -- the definition of 23 materiality on page 39. 24 that the first paragraph of that test pertains only to Count 25 Two. The -- we talked about making clear It's not qualified right now. Mary A. Schweinhagen The subsequent (304)347-3188 5997 1 paragraphs are qualified as to Count Three, but the very 2 first paragraph only pertains to Count Two. 3 And we would object to the extent it's not so 4 qualified. 5 what's required under Count Three. 6 7 We are concerned there will be bleed-over into Your Honor, if I could just review my, my notes, that might -- that may be it. One moment, Your Honor. 8 (Pause.) 9 Your Honor, just in closing, as to the willfulness 10 instruction of Count Three which we noted is not contained 11 in the definitional section. 12 defense Instruction Number 59, which proposes language for 13 that. 14 We'd direct the Court to Finally, Your Honor, we'd just note that the Court did 15 not include a good faith instruction as to any of the 16 counts. We -- 17 THE COURT: 18 MR. DELINSKY: 19 I'm sorry? The Court did not include a good faith instruction as to any of the counts. 20 THE COURT: 21 MR. DELINSKY: All right. We submit that one, that one's 22 warranted for each and every count and was required, and we 23 just wish to assert -- we had proposed those previously. 24 just want to directly assert our objection on the record to 25 the absence of the good faith instructions as to each of the Mary A. Schweinhagen (304)347-3188 We 5998 1 2 counts in the instructions. Finally, Your Honor, mindful of the fact that I've 3 already worn out my welcome, returning to the citations and 4 orders, I would, in light of the argument made by Mr. Ruby 5 and in light of the Court's remarks, request a different 6 form of curative instruction in the alternative to the 7 relief that we sought in the mistrial motion. 8 9 Mr. Ruby got up and said, well, there's confusion because there's different kinds of violations that were in 10 evidence. 11 the citations and orders and how they were used in closing 12 and how they were used in the case. 13 We think that he's understating the problem with But that having been said, there is confusion. I, I 14 did not see the distinction in closing argument that 15 Mr. Ruby was drawing and which I think the Court discussed 16 in making its ruling. 17 that you have two entirely different bodies of evidence: 18 We believe it's appropriate, given You have citations and orders on one hand. Those 19 citations and orders were not issued for the truth. 20 were exclusively, exclusively issued for state of mind. They 21 Then on the other hand you have the testimony from the 22 miners that in the Government's view established eyewitness 23 testimony about violations that occurred underground. 24 25 I think the jury needs to be advised and we'd request that the jury be instructed about the different uses they Mary A. Schweinhagen (304)347-3188 5999 1 are allowed to put to those two different types of evidence. 2 But way of example, we believe that the jury needs to be 3 instructed that they not only can't consider the citations 4 and orders for their truth, as the Court already has 5 instructed, but specifically that they can't base that -- 6 they can't infer an agreement from the citations on orders. 7 They cannot measure the truth or falsity of the statements 8 at issue in Counts Two and Three by virtue of the citations 9 and orders. 10 They can, they can use the citation and orders for 11 state-of-mind issues but not for truth or falsity. 12 that kind of instruction is necessary and that the Court can 13 simultaneously instruct the jury that when it comes to overt 14 acts or, or truth or falsity or other issues as to the 15 truth, they can consider the testimony of the underground 16 miners to the extent that they find that probative over the 17 issues. 18 We think But we think it is necessary in light of the evidence, 19 in light of the non-criminal nature of the citations and 20 orders, in light of the limited basis on which the citation 21 and orders were admitted that at this point the jury be 22 instructed on -- precisely on how they can and cannot use 23 that evidence and how that evidence differs from other 24 evidence that the Government's adduced. 25 Thank you, Your Honor. Mary A. Schweinhagen (304)347-3188 6000 1 THE COURT: All right. I overrule that objection, 2 preserve -- or that motion, deny the motion to instruct the 3 jury as such, preserving Mr. Blankenship's objection and 4 exception. 5 I do recall last evening that I agreed with respect to 6 materiality to insert with respect to Count Two in front of 7 that first sentence and somehow have neglected to do that, 8 and I'll make sure that it's done before this charge goes 9 back to the jury. 10 11 Mr. Ruby, is there anything that you want to put on the record with respect to the objections to the charge? 12 MR. RUBY: The only thing I'd say is this, Your 13 Honor: 14 is looking for, I think it, I think it's the one that the 15 Court added on page 20. 16 I think the unanimity instruction that Mr. Delinsky THE COURT: I remember our discussing it, and I 17 remember or thought I remembered agreeing to do it, but I 18 thought it was here. 19 MR. RUBY: I see it. It's -- I think it's the 20 first full sentence on page 20. 21 "The Court further instructs you that you must be 22 unanimous." 23 THE COURT: 24 MR. RUBY: 25 That's that instruction, All right. Anything further? Otherwise, Your Honor, we don't object to the change on the dates that we discussed yesterday. Mary A. Schweinhagen (304)347-3188 6001 1 THE COURT: 2 MR. RUBY: 3 The dates I think are on 34. Yes, Your Honor, 34. 4 5 And what page is that on, please? THE COURT: And the dates towards the bottom of the page, counsel. 6 MR. RUBY: Yes, Your Honor. I think -- I don't 7 want to speak for him, but I think based on the discussion 8 yesterday, what Mr. Delinsky is asking is that it changed to 9 "The Government must prove beyond a reasonable doubt that on 10 or about April 8, 2010, or April 9, 2010, Massey Energy 11 Company condoned violations of MSHA regulations and/or did 12 not strive to be in compliance with all regulations at all 13 times." 14 15 16 17 In other words, just move that date up. THE COURT: Mr. Delinsky. I remember discussing that, Is that your proposal? MR. DELINSKY: That is, Your Honor. With -- our only revision would be that the two dates should be -- 18 THE COURT: 19 MR. DELINSKY: Together? Correct. And connected with an 20 "and" instead of an "or," although I understand that the 21 Court already has overruled my objections on those grounds. 22 23 THE COURT: All right. I will make sure that change occurs. 24 All right, gentlemen. 25 two changes to the charge. I will have Karen to make those Mary A. Schweinhagen (304)347-3188 6002 1 And the clerk has the jury verdict form which I will 2 send back to the jury, and you can view it and place any 3 objections that you want on the record. 4 MR. RUBY: Your Honor, before we do that, could I 5 ask what the Court decided on the issue of providing an 6 exhibit to the jury with the safety standards? 7 THE COURT: I thought I had advised you all 8 yesterday, and I, when I read the instructions to the jury, 9 I told them that they would have an exhibit, and so I have a 10 sheet that simply has "Exhibit" on it together with those 11 mandatory health and safety regulations that you submitted. 12 13 The clerk has those as well, if you all want to look at them. 14 15 16 17 MR. RUBY: Thank you, Your Honor. Should we approach? THE COURT: Yes, sir. To look at this jury verdict form as well, please. 18 (Pause.) 19 Mr. Delinsky, based on our discussions last evening, I 20 believe you want to place on the record an objection to the 21 jury verdict form. 22 23 MR. DELINSKY: That's correct, Your Honor. defer to Mr. Brown on that? 24 THE COURT: That's fine. 25 MR. BROWN: Yes, Your Honor. Mary A. Schweinhagen (304)347-3188 May I 6003 1 THE COURT: Mr. Brown. 2 MR. BROWN: We do object to the, to the form of 3 the verdict form, specifically to the portion of it that 4 asks the jury to, to make a special finding with respect to 5 each object of the conspiracy charged in Count One. 6 We made a request last night and submitted a short 7 memorandum last night in support of our position that we are 8 entitled to a general verdict on the Count One that is not a 9 general verdict. So for that reason, we object to the form 10 of the, of the verdict form and would ask the Court to 11 instead use the form that, that we submitted. 12 THE COURT: 13 MR. RUBY: All right. Any response, counsel? Briefly, Your Honor. We reviewed the 14 defense cases. 15 proposition that, that the kind of form that the Court has 16 proposed to use here is impermissible. 17 some support for the view that he can inquire into the 18 factual bases for the, for the jury's finding. 19 We don't believe they stand for the I think there is But here, where the issue is that there is a conspiracy 20 with two separate objects and that there is -- there are 21 possible consequences for sentencing, the case law, and we 22 haven't found a case that is precisely on point from this 23 circuit but we have found support in other circuits for the 24 proposition that this is appropriate for the Court to use 25 it, or like the one that's being used here. Mary A. Schweinhagen (304)347-3188 6004 1 2 3 So we would, we'd -- we would oppose the defense objection to the form here. THE COURT: In the instance that it is not broken 4 out, Mr. Brown, in the cases that you've cited, how does the 5 Court address the issue of conviction or sentencing if the 6 defendant is convicted where there is a difference in the 7 type of offense? 8 9 10 MR. BROWN: Well, Your Honor, the Government made the decision to charge these multiple objects in a single conspiracy count. 11 THE COURT: Um-hmm. 12 MR. BROWN: And so our view is that we have a 13 right to a general verdict on that count; and if there is a 14 conviction on that count, then the Court will need to 15 address it at that point if it was a general verdict. 16 And our position would be that Mr. Blankenship would 17 need to be sentenced, if he were convicted, based on the 18 object that has the lesser sentence. 19 THE COURT: All right. 20 MR. BROWN: Can I raise a couple of housekeeping 21 matters, Your Honor? 22 THE COURT: And I will give you that opportunity 23 in just a minute. 24 and to leave at 5:00, and I am just going to release them, 25 and then I will hear you. The jury has asked for a 20-minute recess Mary A. Schweinhagen (304)347-3188 6005 1 MR. BROWN: Thank you. 2 THE COURT: Would you bring them out, please. 3 (The jury entered the courtroom at 4:55 p.m.) 4 THE COURT: 5 6 Ms. Carte, and ladies and gentlemen of the jury, I am going to release you for the evening. While you are out, do not discuss this case among 7 yourselves or permit anyone to discuss it with you. 8 Remember that you are under continuing order throughout the 9 course of the case and throughout your deliberations not to 10 listen to, view, or read any media coverage that there might 11 be, or any other information. 12 Have a good, restful evening, and please be in your 13 jury lounge tomorrow morning at 9:00. 14 deliberations until you hear from me. 15 Do not begin your Have a good evening. 16 (The jury left the courtroom at 4:56 p.m.) 17 THE COURT: Mr. Brown, go ahead, please. 18 MR. BROWN: Thank you, Your Honor. Mr. Delinsky 19 had made a request that, in support of a motion for a 20 mistrial, that the slides used by the Government be put into 21 evidence, and so I would ask that the Court make those a 22 part of the record. 23 part of a record, not put into evidence. 24 THE COURT: 25 MR. RUBY: I say put into evidence, I mean make Any objection, counsel? I don't know that there is any Mary A. Schweinhagen (304)347-3188 6006 1 necessity for it, Your Honor, the slides. 2 THE COURT: 3 MR. RUBY: 4 THE COURT: Mr. Brown? 5 MR. BROWN: Well, Your Honor, it was part of the Is there an objection to it, Mr. Ruby? Yes, Your Honor. 6 objection to the closing argument that we made in the case, 7 and I think that in order to accurately preserve the record 8 and make the record for what occurred in the course of the 9 closing argument, the slide was referred to and obviously 10 seen by the juror -- the jury, then we should ask that it 11 should be made a part of the record so the record is 12 complete. 13 THE COURT: All right. To the extent that there 14 is that capability, I am going to order that it be preserved 15 for the record. 16 should that necessity arise, be able to assess the objection 17 without knowing what's being objected to. 18 19 There is no way for a reviewing court, MR. RUBY: Your Honor, if I could inquire of the defense, is there a specific slide that is at issue? 20 MR. BROWN: One moment. 21 (Pause.) 22 All of them, Your Honor. 23 24 25 THE COURT: counsel. Well, that wasn't the argument, As I understood it -MR. BROWN: Mr. Delinsky, I think, can identify Mary A. Schweinhagen (304)347-3188 6007 1 the ones at issue. 2 MR. DELINSKY: Your Honor, we did not have a slide 3 deck, but I believe there were at least four slides. 4 don't know -- let me put it differently. 5 subject areas I can recall on which there were slides. 6 There may have been more than one slide on each subject 7 matter. 8 the slides, Your Honor. 9 I just There were four But, again, we don't have that -- we don't possess THE COURT: We didn't have them in advance. I understand. But I was taking notes, 10 which I have temporarily misplaced. 11 it was my recollection, to, when you made your argument, to 12 a slide, and I want that preserved. 13 not go to the entirety of the slides that were used, as I 14 understood it. 15 16 MR. DELINSKY: But your argument did But it went to more than one, Your Honor. 17 18 You had an objection, THE COURT: Well, if you will tell us which ones, I am going to order that they be preserved. 19 MR. DELINSKY: Okay. It went to any slides on 20 compensation, Your Honor. 21 recollection is that, is that there was one, but if there 22 was more than one, we'd like that to be included in the 23 record. 24 25 We believe -- my best I made argument on the, the Government's point about there being a duty on the part of Mr. Blankenship to see to Mary A. Schweinhagen (304)347-3188 6008 1 it that others follow the law, and there was a slide that 2 accompanied that, that stated that. 3 There was a slide on ignition sources. 4 THE COURT: That was the slide that your -- that 5 you mentioned during the course of your argument. 6 ignition sources. 7 MR. DELINSKY: It was on And I did mention as well that duty 8 point, Your Honor, and I think I already -- that was a 9 mistake under the law. 10 11 And then there was the slide on Mr. Stewart's testimony. 12 THE COURT: 13 MR. DELINSKY: All right. Anything further? Oh, and I am sorry, Your Honor, 14 there was one other. 15 regarding Mr. Ross, because that was part of Mr. Goodwin's 16 argument superimposing -- or juxtaposing Mr. Ross's words 17 with the false statements, alleged false statements at issue 18 in Counts Two and Three, and that, that -- my argument on 19 that was based not only on the argument by counsel but on 20 the slide as well. 21 THE COURT: 23 MR. RUBY: 25 The very first slide So it's those five issues. 22 24 I apologize. Counsel? We can -- should we just provide -- print those off and provide them to the clerk, Your Honor. THE COURT: If you have the capability to do that, Mary A. Schweinhagen (304)347-3188 6009 1 I would ask that you do it to preserve it for the record. 2 MR. RUBY: 3 THE COURT: 4 5 Okay, Your Honor. All right. Thank you. You all have a good evening. (Trial recessed at 5:01 p.m.) 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Mary A. Schweinhagen (304)347-3188 6010 1 REPORTERS' CERTIFICATE 2 3 Lisa A. Cook, RPR, RMR, CRR, FCRR, Official Court 4 Reporter of the United States District Court for the 5 Southern District of West Virginia, and Mary A. 6 Schweinhagen, RMR, CRR, do hereby certify that the foregoing 7 is a true and accurate transcript, to the best of our 8 ability, of the proceedings as taken stenographically by and 9 before us at the time place, and on the date hereinbefore 10 set forth. 11 12 13 14 /s/ Lisa A. Cook Court Reporter November 17, 2015 15 16 17 18 /s/ Mary A. Schweinhagen Court Reporter November 17, 2015 19 20 21 22 23 24 25 Mary A. Schweinhagen (304)347-3188