Appeal: 16-4193 Doc: 9-1 Filed: 04/12/2016 Pg: 1 of 37 Total Pages:(1 of 52) ORAL ARGUMENT REQUESTED No. 16-4193 ____________________________ UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT ____________________________ UNITED STATES, Appellee, v. DONALD L. BLANKENSHIP, Appellant. ____________________________ On Appeal from the United States District Court For the Southern District of West Virginia (Criminal No. 5:14-cr-244) The Honorable Irene C. Berger, District Judge ____________________________ APPELLANT’S MOTION FOR RELEASE PENDING APPEAL ____________________________ Appeal: 16-4193 Doc: 9-1 Filed: 04/12/2016 Pg: 2 of 37 Total Pages:(2 of 52) TABLE OF CONTENTS LOCAL RULE 27(A) STATEMENT ...................................................................... ii STATEMENT............................................................................................................3 ARGUMENT .............................................................................................................8 I. THE DISTRICT COURT FOUND THERE IS NO RISK OF FLIGHT OR DANGER…. ......................................................................................................9 II. THIS APPEAL IS NOT FOR DELAY..............................................................9 III. THE APPEAL WILL PRESENT SUBSTANTIAL QUESTIONS...................9 A. The District Court Gave An Instruction Erroneously Defining Willfulness..................................................................................................9 B. In Violation Of The Fifth And Sixth Amendments, The Indictment Did Not Name The Mine Safety Standards That Mr. Blankenship Conspired To Violate .................................................................................................15 C. The District Court Erroneously Denied Cross-Examination. ..................20 1. Testimony Regarding Existence of Alleged Conspiracy. ................22 2. Testimony Regarding Dozens of New MSHA Citation Exhibits.....27 D. The District Court Gave An Erroneous Reasonable Doubt Instruction...29 CONCLUSION........................................................................................................33 Appeal: 16-4193 Doc: 9-1 Filed: 04/12/2016 Pg: 3 of 37 Total Pages:(3 of 52) LOCAL RULE 27(A) STATEMENT Opposing counsel, the United States Attorney for the Southern District of West Virginia, has been advised of the intended filing of this motion. The United States Attorney’s office has stated that it intends to file an opposition to this motion. ii Appeal: 16-4193 Doc: 9-1 Filed: 04/12/2016 Pg: 4 of 37 Total Pages:(4 of 52) Appellant Donald Blankenship moves for release pending appeal of his misdemeanor conviction for conspiracy to willfully violate federal mine safety standards. See 30 U.S.C. § 820(d). This motion is made pursuant to FRAP 9(b) and 18 U.S.C. § 3143(b). On April 6, 2016, the District Court (Berger, J.) imposed a sentence that included twelve months’ incarceration. Ex. A (judgment). The Court ruled that Mr. Blankenship “should be permitted to report voluntarily” when directed to do so by the Bureau of Prisons, “finding that your conduct while on bond for the past year and a half constitutes clear and convincing evidence that you’re not likely to flee and not likely to cause harm to any other person.” Ex. B at 72-73 (transcript of part of sentencing addressing release). But even though Mr. Blankenship could serve much, if not all, of his twelve-month sentence before this appeal is decided, the Court orally denied release pending appeal. It did so without an explanation, and without the statement of reasons that is required by FRAP 9. Ex. B at 73. The District Court entered judgment on April 7, 2016. ECF 589. Mr. Blankenship filed a notice of appeal later that day. ECF 591. Mr. Blankenship now requests that this Court grant his release so that the Court can resolve his appeal before he has served most or all of his twelve-month sentence. He amply satisfies the requirements for release pending appeal set forth in 18 U.S.C. § 3143(b)(1)(A)-(B). The District Court already found by clear and Appeal: 16-4193 Doc: 9-1 Filed: 04/12/2016 Pg: 5 of 37 Total Pages:(5 of 52) convincing evidence that Mr. Blankenship is unlikely to flee or pose a danger to the community. The government did not contend below that his appeal is for the purpose of delay. Thus, under section 3143(b)(1), release pending appeal is appropriate – indeed, mandatory – if the appeal raises a substantial question of law or fact that, if decided in Mr. Blankenship’s favor, likely will lead to reversal. 18 U.S.C. § 3143(b)(1) (“shall order” release). Mr. Blankenship’s appeal will raise several substantial questions, including: • Whether the jury instructions permitted conviction absent proof that Mr. Blankenship conspired to willfully violate mine safety standards. The challenged willfulness instructions improperly substituted civil law concepts of failure to prevent violations and of recklessness for the intent to act unlawfully. In so doing, they deviated from the Supreme Court’s decision in Bryan v. United States, 524 U.S. 184 (1988), and the decisions of this Court applying Bryan. We are aware of no court that ever has approved such willfulness instructions. They were drafted by the government specifically for this case. • Whether, under the Fifth and Sixth Amendments, the indictment could charge a conspiracy to willfully violate mine safety standards without specifying which standards were the object of the conspiracy and without charging the elements required to prove a violation of any standard. See United States v. Kingrea, 573 F.3d 186 (4th Cir. 2009); United States v. Hooker, 841 F.2d 1225 (4th Cir. 1988). • Whether the refusal to permit cross-examination concerning new testimony elicited by the government for the first time in re-direct examination of its key cooperating witness, regarding alleged statements by Mr. Blankenship and regarding many new exhibits violated Mr. Blankenship’s constitutional right to cross-examination. See United States v. Caudle, 606 F.2d 451 (4th Cir. 1979). • Whether, as other circuits already have concluded, it was error to instruct the jury that acquittal was required in the event of a “tie” 2 Appeal: 16-4193 Doc: 9-1 Filed: 04/12/2016 Pg: 6 of 37 Total Pages:(6 of 52) between the evidence of guilt and the evidence of innocence, diluting the reasonable doubt standard and allowing the jury to convict on the basis of a mere preponderance of the evidence. The instruction also conflicted with this Circuit’s rule that reasonable doubt should not be explained unless a jury asks for an explanation. The District Court’s resolution of these questions was error, and any one will require reversal. They present, at a minimum, “close question[s]” that “very well could be decided the other way.” United States v. Steinhorn, 927 F.2d 195, 196 (4th Cir. 1991) (defining “substantial question” for appeal). All the questions were vigorously litigated below and were important to the outcome of the trial. If any question is decided in Mr. Blankenship’s favor, it will produce reversal. In light of Mr. Blankenship’s twelve-month sentence, release so that this Court may consider the substantial questions generated in this novel case will preserve the Court’s power to grant full relief. See Rhodes v. United States, 275 F.2d 78, 82 (4th Cir. 1960) (defendant sentenced to 22 months would lose benefit of appeal unless released); United States v. Garcia, 340 F.3d 1013, 1019 (9th Cir. 2003) (requiring defendant to “serve most or all of his sentence before his appeal is decided” would “substantially diminish the benefit” of appeal). STATEMENT Proceedings below. Mr. Blankenship, the former Chief Executive Officer of Massey Energy Company, was charged in Count One of a superseding indictment with a dual-object conspiracy (i) to willfully violate mine safety 3 Appeal: 16-4193 Doc: 9-1 Filed: 04/12/2016 Pg: 7 of 37 Total Pages:(7 of 52) standards at the Upper Big Branch mine, one of the dozens of mines owned and operated by the company, and (ii) to defraud the United States at that one mine. The indictment also charged Mr. Blankenship with false statements to the SEC in connection with a company filing relating to mine safety (Count Two) and securities fraud for the same filing (Count Three). ECF 169. Trial began October 1, 2015. The government presented its case over six weeks. The defense rested without putting on evidence. The jury began deliberations November 17, 2015. The jury sent a deadlock note November 19, but the Court ordered the jury to continue. Tr. 6026-27. On December 1, the jury again reported deadlock, and the Court gave an Allen charge. Tr. 6150-52. On December 3, after approximately ten days of deliberation, the jury returned a verdict. The jury acquitted on Counts Two and Three and on the conspiracy to defraud object in Count One. ECF 530. The jury convicted Mr. Blankenship of the Count One misdemeanor conspiracy to commit willful mine safety violations contrary to 30 U.S.C. § 820(d). ECF 530. Central theory of the prosecution. 18 U.S.C. § 820(d) provides criminal penalties for “willfully violat[ing] a mandatory health or safety standard” contained in Title 30 of the Code of Federal Regulations. Section 820 treats nonwillful violations very differently. Under section 820(a), non-willful violations of safety standards are subject to civil penalties. 4 Appeal: 16-4193 Doc: 9-1 Filed: 04/12/2016 Pg: 8 of 37 Total Pages:(8 of 52) The indictment did not charge a substantive violation of section 820(d) – i.e., willfully violating a mine safety standard. Nor did it charge under section 820(c) that Mr. Blankenship “knowingly authorized, ordered, or carried out” a violation. Although the Mine Safety and Health Administration (MSHA) frequently issued citations to Massey for safety violations, they were under section 820(a) for civil, non-willful violations. There was no evidence that Mr. Blankenship knew about the facts described in the citations before or as they occurred. The evidence was that he received information about citations after the fact. In the absence of evidence that Mr. Blankenship “willfully” violated a safety standard (section 820(d)) or “knowingly authorized, ordered, or carried out” a violation (section 820(c)), the government pursued a conspiracy theory that skirted the requirements for proof (1) of an agreement (2) to willfully violate the law. The government produced only one alleged co-conspirator, Chris Blanchard, as a witness. Mr. Blanchard testified to an “understanding at UBB” that preventable violations would naturally occur and be cited by MSHA, that it was cheaper to pay fines than to employ the resources necessary to prevent “all” violations and that he thought Mr. Blankenship “shared the same opinion.” He also testified, for the first time in the government’s redirect examination, that Mr. Blankenship made statements “to the effect” that it was cheaper as a cost of doing 5 Appeal: 16-4193 Doc: 9-1 Filed: 04/12/2016 Pg: 9 of 37 Total Pages:(9 of 52) business to pay fines for safety violations than to eliminate them. Tr. 2245-46, 3322-23. Tellingly, the government did not ask its witness, whom it immunized (Def. Ex. 284; Tr. 2540-41), whether there was an agreement to willfully violate mine safety regulations. It knew Mr. Blanchard would deny it. On cross-examination, the witness flatly denied that there was a conspiracy or agreement to violate the law and stated unequivocally that Mr. Blankenship had not instructed him to violate the law and that Mr. Blankenship did not want safety violations and had ordered him and others to comply with mine safety standards. E.g., Tr. 2529, 2540-41, 2593-94, 2603-04, 2614-15, 2648-49, 2667, 2679, 2694, 2852-53, 2918, 2946, 3020, 3043-45, 3069, 3309-12. Regarding communications and documents that the government put into evidence – such as one in which Mr. Blankenship told Mr. Blanchard not to let MSHA “run” his mines and another insisting that that mine officials “run coal” – Mr. Blanchard testified that he did not understand Mr. Blankenship to suggest in these communications that safety standards be violated. E.g., Tr. 2405-06, 2527, 2545-48, 2592-93, 2603-04, 2627-28, 2648-49, 2650-51, 2894-95, 3312. Even Bill Ross, the government witness who reported to company management and ultimately to Mr. Blankenship comments he heard from mine level personnel about prioritizing production over safety and who suggested an increase in the number of 6 Appeal: 16-4193 Doc: 9-1 Filed: 04/12/2016 Pg: 10 of 37 Total Pages:(10 of 52) miners in order to reduce safety violations, testified that Mr. Blankenship consistently made clear that he wanted violations reduced, if not eliminated. Tr. 4126, 4152, 4322-26. Over objection, e.g., 5455:19-5456:14, the government introduced a large quantity of hearsay evidence from an MSHA database – including electronic records of certain citations and other compilations of citations, e.g., Gov’t Exs. 5778, 455. In response to hearsay and Confrontation Clause objections, the government insisted that the records and compilations were being offered only to show Mr. Blankenship’s knowledge that (non-willful, civil) safety violations were occurring, e.g. ECF 411, from which the government argued that Mr. Blankenship willfully violated safety standards by not acting to reduce future violations, e.g., Tr. 5857, 5936. As part of its argument that Mr. Blankenship violated section 820(d) by failing to do enough to prevent safety violations, the government argued that Mr. Blankenship established high coal production targets and tight operating budgets, that lower production targets would have given miners more time to pay attention to safety issues, and that larger budgets would have provided more personnel who could pay attention to safety issues. The government emphasized in closing argument that failure to take preventive action established willful criminality under 7 Appeal: 16-4193 Doc: 9-1 Filed: 04/12/2016 Pg: 11 of 37 Total Pages:(11 of 52) section 820(d) based on the duty described in this slide that the government displayed to the jury: ECF 545 at 3; Tr. 5865-66; see ECF 169 at ¶¶ 49-52 & 92-93 (allegations in superseding indictment that defendant “could have drastically reduced violations” by hiring more miners, devoting more “resources” to safety, reducing time devoted to coal production, and “tak[ing] action to reduce safety-law violations”). ARGUMENT Mr. Blankenship moves for release pending appeal because the issues to be raised are substantial. Without relief, he could serve much, if not all, of his sentence before the appeal is decided. Under 18 U.S.C. § 1343(b), release must be granted if (1) there is clear and convincing evidence that the defendant is not a risk of flight or a danger to the community, (2) the appeal is not for purpose of delay, and (3) the issues presented on appeal are substantial and, if decided in defendant’s favor, will result in reversal. Mr. Blankenship meets this test. 8 Appeal: 16-4193 I. Doc: 9-1 Filed: 04/12/2016 Pg: 12 of 37 Total Pages:(12 of 52) THE DISTRICT COURT FOUND THERE IS NO RISK OF FLIGHT OR DANGER. As explained at the outset of this motion, the District Court found by clear and convincing evidence that Mr. Blankenship is not a flight risk or a danger to others. Ex. B. II. THIS APPEAL IS NOT FOR DELAY. The government never has argued that appeal will be for the purpose of delay. The nature of the issues to be presented on appeal demonstrates that it is not. III. THE APPEAL WILL PRESENT SUBSTANTIAL QUESTIONS. The only release factor requiring resolution by this motion is whether the issues on appeal will be substantial ones that, if accepted by this Court after merits briefing, likely will produce a reversal. Some – but in the interest of space, not all – of the substantial questions to be raised in this appeal are explained below. A. The District Court Gave An Instruction Erroneously Defining Willfulness. Bryan v. United States, 524 U.S. 184 (1998), explains the meaning of willfulness in criminal statutes that do not call for the heightened knowledge of the law required for highly technical offenses.1 1 Willfulness “[m]ost obviously The government has recognized that Bryan sets a floor for defining willfulness in criminal cases and has confessed error when jury instructions provided a lesser standard for criminal liability. Br. for the United States in Opp’n in Ajoku v. United States, No. 13-7264, at 11, 2014 WL 1571930 (Mar. 10, 2014) (18 U.S.C. 9 Appeal: 16-4193 Doc: 9-1 Filed: 04/12/2016 Pg: 13 of 37 Total Pages:(13 of 52) differentiates between deliberate and unwitting conduct, but in the criminal law it typically refers to a culpable state of mind.” Id. at 191. “As a general matter, when used in a criminal context, a ‘willful’ act is one undertaken with a ‘bad purpose.’” Id. Willfulness requires “specific evidence to prove that ‘an evil-meaning mind’ directed the ‘evil-doing hand.’” Id. at 193. “In other words, in order to establish a ‘willful’ violation of a statute, ‘the Government must prove that the defendant acted with knowledge that his conduct was unlawful.’” Id. at 191-92 (citation omitted); see United States v. Bishop, 740 F.3d 927 (4th Cir. 2014) (reiterating Bryan’s distinction between knowing and willful); United States v. Hsu, 364 F.3d 192, 197 (4th Cir. 2004) (same). Based on these principles, in Bryan the Supreme Court affirmed a conviction by a jury that was instructed by the trial judge on willfulness as follows: A person acts willfully if he acts intentionally and purposely and with the intent to do something the law forbids, that is with the bad purpose to disobey or to disregard the law. Now, the person need not be aware of the specific law or rule that his conduct may be violating. But he must act with the intent to do something that the law forbids. 524 U.S. at 190. §§ 1001, 1035). See Ajoku v. United States, 134 S. Ct. 1872 (2014) (vacating and remanding in light of confession of error); United States v. Ajoku, 584 F. App’x 824 (9th Cir. 2014) (noting confession); Russell v. United States, 134 S. Ct. 1872 (2014) (noting similar confession). 10 Appeal: 16-4193 Doc: 9-1 Filed: 04/12/2016 Pg: 14 of 37 Total Pages:(14 of 52) The District Court in this case deviated from Bryan by giving special instructions, proposed by the government, that a “person with supervisory authority at or over a mine” commits willful violations of mine safety regulations if, in effect, he knows non-willful violations have occurred and does not act to decrease violations in the future. Because the prosecution case was dominated by evidence and argument regarding alleged failures to set operating budgets and coal production targets that would permit more miners to be hired and more time to attend to safety issues, the government had to request special willfulness instructions authorizing conviction on such evidence. Over objection, Tr. 5720-30, the Court gave the government’s “theory of the prosecution” instructions: • “A person with supervisory authority at or over a mine willfully fails to perform an act required by a mandatory mine safety or health standard if he knows that the act is not being performed and knowingly, purposefully, and voluntarily allows that omission to continue.” • “A person with supervisory authority at or over a mine also willfully violates a mandatory mine safety or health standard o if he . . . knowingly, purposefully, and voluntarily fails to take actions that are necessary to comply with the . . . standard, or o if he knowingly, purposefully, and voluntarily takes action or fails to do so with reckless disregard for whether the action or failure to act will cause [a violation].” Tr. 5818 (emphasis added). 11 Appeal: 16-4193 Doc: 9-1 Filed: 04/12/2016 Pg: 15 of 37 Total Pages:(15 of 52) These instructions omitted everything that Bryan teaches is required in a criminal willfulness instruction, including deliberate conduct and an act taken with a bad purpose, knowledge that one’s conduct is unlawful, and an evil-meaning mind. Without those elements, the term willfulness ceases to limit criminal liability to those persons who are proved to have “intended to violate the law.” Bishop, 740 F.3d at 933 (applying Bryan).2 The instructions permitted conviction on a showing that a supervisor “knows that [an] act is not being performed and knowingly allows that omission to continue,” regardless of whether he knew that the act in question is legally required and that failure to perform the act is illegal and regardless of whether he intended to violate the law. Bishop, 740 F.3d at 933. Thus, the “allows an omission to continue” and “[f]ailure to take actions” portions of the instruction permitted conviction if Mr. Blankenship knew that non-criminal, even inadvertent violations, of safety standards by others had been occurring, as regularly happens in all mines,3 and failed to do enough to prevent future violations. 2 In addition to the intent and culpable mind that willfulness requires, proof of intent to make an agreement and of intent to commit a crime are required for a conspiracy conviction. The District Court instructed the jury on this point. Tr. 5796-98. The special willfulness instructions canceled out those intent instructions. 3 See, e.g., Def. Ex. 3 (showing neighboring Harris mine, owned by another company, had more civil violations than UBB); Gov’t Ex. 445 (showing MSHA citations issued to regulated facilities owned by Massey and other companies, including facilities with more citations than UBB). 12 Appeal: 16-4193 Doc: 9-1 Filed: 04/12/2016 Pg: 16 of 37 Total Pages:(16 of 52) The “will cause” a violation portion of the instruction permitted conviction for non-willful violations based on prosecution arguments that larger budgets and lower production targets would result in fewer citations, rather than on evidence that Mr. Blankenship intended to violate safety regulations and knew that his alleged conduct in setting budgets and production targets was unlawful. Similarly, the instructions that “reckless disregard for whether . . . the action or failure to act will cause” even a non-willful safety violation permitted conviction for recklessness rather than willfulness. Reckless disregard is sufficient for civil liability for willfulness, but it does not satisfy the willfulness element in a criminal statute. Safeco Ins. Co. of Am. v. Burr, 551 U.S. 47, 60 & n.9 (2007) (contrasting civil and criminal meanings of willful). The special willfulness instructions as a whole draw on civil liability concepts of foreseeability and responsibility for the actions of others and eliminates the need for the proof that Bryan requires of an intention to violate the law. The instructions shifted the jury’s determination from whether Mr. Blankenship had agreed to commit criminal (willful) violations of mine safety standards to whether he could have done more to prevent safety violations, even non-willful ones. The government fully exploited these novel willfulness instructions to obtain a conviction for not doing enough concerning safety rather than for intending to 13 Appeal: 16-4193 Doc: 9-1 Filed: 04/12/2016 Pg: 17 of 37 Total Pages:(17 of 52) violate the law. The government, over objection, Tr. 5865-66, displayed during closing a slide that stated: “the Defendant had a DUTY to see that his mines complied with the laws.” ECF 545 at 3 (emphasis in original); see Tr. 5953 (“[I]t’s not legal to just sit back, for somebody who’s running a coal mine to sit back and let violations happen. There is an affirmative duty to follow the safety laws.”). A coal mine operator may be civilly liable for failing to do more to prevent violations of mine health and safety standards. 30 U.S.C. § 820(a). But that is not a criminal violation. The Court’s novel instructions – and the arguments made by the government on the basis of them – allowed for the kind of negligence-based liability the federal courts have condemned, especially in the context of the criminal enforcement of regulatory schemes. E.g., United States v. Ladish Malting Co., 135 F.3d 484, 488 (7th Cir. 1998) (OSHA); United States v. Sabretech, Inc., 271 F.3d 1018 (11th Cir. 2001) (FAA); Marshall, 753 F.3d at 345 (USPS). Finally, the government erroneously argued to the District Court that a special willfulness instruction for supervisors is authorized by United States v. Jones, 735 F.2d 785 (4th Cir. 1984). ECF 353 at 9-10; Tr. 5721, 5728. Jones, however, concerned a very different instruction. 735 F.2d at 789 n.6. The instructions challenged here were not given by the trial court in Jones. Moreover, the defendants in that case were convicted under a different statute, section 820(c), that punishes “knowingly” authorizing, ordering, or carrying out a violation – a far 14 Appeal: 16-4193 Doc: 9-1 Filed: 04/12/2016 Pg: 18 of 37 Total Pages:(18 of 52) lower showing than the willfulness showing required for violations of section 820(d). Jones holds only that the trial court’s instructions “set a level of behavior at least as culpable as that required to convict for knowing conduct in violation of the Act.” 735 F.2d at 789. And in any event, Jones predates by more than a decade the Supreme Court’s clarification in Bryan of the difference between knowing and willful violations of law and also predates this Court’s decisions applying Bryan. The District Court’s decision to specially define willfulness for Count One raises a substantial question in light of Bryan. To our knowledge, no appellate court has approved the government’s instructions. The dispute about mens rea was central to the dispute the jury had to resolve. Indeed, the jury acquitted Mr. Blankenship of other counts for which the District Court properly defined willfulness in accord with Bryan. If the Court agrees that the special willfulness instructions were erroneous, it will reverse. B. In Violation Of The Fifth And Sixth Amendments, The Indictment Did Not Name The Mine Safety Standards That Mr. Blankenship Conspired To Violate. The indictment purported to charge Mr. Blankenship with an offense conspiracy, alleging in Count One that he conspired with others “to willfully violate mandatory federal mine safety and health standards at UBB, in violation of Title 30, United States Code, Section 820(d), and Title 18 United States Code, 15 Appeal: 16-4193 Doc: 9-1 Filed: 04/12/2016 Pg: 19 of 37 Total Pages:(19 of 52) Section 371.” ECF 169 ¶ 87(a). As alleged in the indictment, these regulatory standards are “codified in Title 30, Code of Federal Regulations, Chapter I.” ECF 169 ¶ 4. Title 30, however, contains hundreds of mine safety standards. Not one was named in the indictment as an object of the conspiracy. Simply put, the indictment charged the offense of conspiracy to willfully violate regulations without identifying which regulations. It is established law in this Circuit that a conspiracy indictment must allege each element of the offense that is the object of the conspiracy. United States v. Kingrea, 573 F.3d 186 (4th Cir. 2009); United States v. Hooker, 841 F.2d 1225 (4th Cir. 1988). A section 820(d) offense includes as elements that the requirements of a mandatory mine safety and health standard were willfully violated. Yet the indictment ignored the element pertaining to the “mandatory health or safety standard.” It referred to “mandatory health or safety standards” only generically, without naming any one the violation of which was the object of the conspiracy. ECF 169 ¶¶ 87(a), 89(a). And because it did not name a standard, it did not allege the elements of one. Mr. Blankenship moved to dismiss, relying on United States v. Kingrea, 573 F.3d 186 (4th Cir. 2009), and United States v. Hooker, 841 F.2d 1225 (4th Cir. 1988). ECF 203, 204, 237, 299, 332. The Court denied the motions. 16 Appeal: 16-4193 Doc: 9-1 Filed: 04/12/2016 Pg: 20 of 37 Total Pages:(20 of 52) Near trial, the government began to provide some of the detail concerning specific safety standards that the indictment did not. The government opposed a motion in limine excluding mention of explosions at trial. It would be unworkable, the government asserted, “because the very standards Defendant is charged with conspiring to willfully violate specifically mention mine explosions and combustible material.” ECF 290 at 8. The government did not, of course, refer to any part of the indictment that identified which “very standards” it meant. But the government did go on to identify the specific standards it then had in mind: 30 C.F.R. §§ 75.321, 75.325, 75.330, 75.371, 75.334, 75.400, 75.400-2, 75.401-1, 75.402, 75.402-2, 75.403-1. Then the government explained, ECF 290 at 9 & 11, the centrality of specific standards as elements of the offense charged: Violations of federal mine safety standards are key to the Superseding Indictment. It would be impossible to present evidence of willful violations of these regulations without explaining what the regulations are, [and] how they operate. . . . Eliminating the words “explosion” and “combustible” from these standards would result in the alteration of key language in the charges the United States must prove. . . . The purpose, requirements, and nature of the safety standards violated at UBB are not only probative, but are necessary to explain the charges in the Superseding Indictment and the overarching narrative of this case. ... These are words and concepts – not arguments – that are integral to the laws Defendant violated. The jury’s potential mental connection between these words and the UBB explosion does not “substantially outweigh” the probative value of these words to the elements of the charged offenses, and the inseparability of these words from the relevant standards. 17 Appeal: 16-4193 Doc: 9-1 Filed: 04/12/2016 Pg: 21 of 37 Total Pages:(21 of 52) When it came time to submit the case to the jury, the government argued that the Court must provide the jury with thirty pages of Title 30 regulations containing an array of safety standards so that the jury could “make the findings that it needed to find with respect to mine safety or health standards,” Tr. 5653, and “for purposes of the record to show that the jury was instructed on all of the standards that, that could apply to the testimony that came in about the miners. . . .” Tr. 5655. Mr. Blankenship unsuccessfully objected to the exhibit containing mine safety standards that “never were presented to the grand jury” or charged in the indictment. Tr. 5659; see ECF 540-1 (exhibit containing regulations). The Court instructed the jury that “you must review” the standards “during your deliberations relative to Count One of the superseding indictment.” Tr. 5799. The government and the District Court were correct to recognize ultimately that safety standards were an element of the charged offense and needed to be particularized for the jury, but were wrong not to assure that the indictment provided the defendant notice of the charges (as required by the Sixth Amendment) and that the grand jury had considered and found evidence supporting the charges (as required by the Fifth Amendment). Hooker, 841 F.2d at 1230 (explaining Fifth Amendment and Sixth Amendment roots of rule requiring indictments to charge all elements); see Fed. R. Crim. P. 7(c)(1) (“For each count, the indictment or information must give the official or customary citation of the statute, rule, 18 Appeal: 16-4193 Doc: 9-1 Filed: 04/12/2016 Pg: 22 of 37 Total Pages:(22 of 52) regulation, or other provision of law that the defendant is alleged to have violated.”); United States v. Daniels, 973 F.2d 272, 274 (4th Cir. 1992) (“Every essential element of an offense must be charged in the body of an indictment.”); Franco-Casasola v. Holder, 773 F.3d 33, 37 (5th Cir. 2014) (recognizing that, when a statute “criminalizes actions that are contrary to other laws and regulations,” the statute “depends on other statutes and regulations to provide the specific elements of the offense”). This Court has been vigilant in requiring that an indictment allege all elements of the offense charged. In Hooker, an indictment for conspiracy to violate the RICO statute omitted the allegation that the RICO enterprise affected interstate commerce, an element of the offense under 18 U.S.C. § 1962(c). The Court held that even the specific citation to the statute in the indictment, which set forth all the elements, did not cure the indictment’s failure actually to allege each element required by the statute. 841 F.2d at 1227-28. It still is necessary for the indictment to allege “the basic elements of the offense itself,” which includes the elements of the crime that is the object of a conspiracy. Id. at 1229. The Court strongly criticized the prosecutors for failing to follow these rules. Id. at 1232-33. More recently, this Court’s decision in Kingrea reaffirmed these principles, holding a conspiracy indictment under 18 U.S.C. § 371 was deficient for failure to allege an essential element of the offense that was the object of the conspiracy. 19 Appeal: 16-4193 Doc: 9-1 Filed: 04/12/2016 Pg: 23 of 37 Total Pages:(23 of 52) 573 F.3d at 191-94. In particular, the object offense prohibited exhibiting “an animal in an animal fighting venture.” Id. at 191. It was not enough that the indictment alleged that the defendant conspired to exhibit “an animal fighting venture” because that lacked the requisite allegation concerning exhibition of “an animal,” id. at 191-92, and thus the indictment “failed to state an offense against the United States as the object of the conspiracy,” id. at 193. The issue whether the indictment here was deficient under Hooker and Kingrea easily satisfies section 3143(b)’s substantiality requirement. If the indictment was deficient, reversal is required, as it was in both Hooker and Kingrea. “[W]hen an indictment fails to include an essential element of the offense charged, it thereby fails to charge any federal offense and a conviction under the indictment may not stand.” United States v. Pupo, 841 F.2d 1235, 1239 (4th Cir. 1988) (en banc). C. The District Court Erroneously Denied Cross-Examination. The government’s key witness was Chris Blanchard, former president of the Massey group that operated UBB. The government granted immunity to Mr. Blanchard, Def. Ex. 284; Tr. 2540-41, the only alleged co-conspirator whom the government called as witness, and the only witness who worked at UBB who testified about communications with Mr. Blankenship, e.g., Tr. 2286. At the end of the government’s redirect examination of Mr. Blanchard and again in a letter to 20 Appeal: 16-4193 Doc: 9-1 Filed: 04/12/2016 Pg: 24 of 37 Total Pages:(24 of 52) the Court, Mr. Blankenship requested the opportunity to cross-examine on important new matters first raised in the redirect examination, including (1) statements that Mr. Blankenship allegedly made that tracked the government’s theory of conspiracy and (2) a large number of new exhibits consisting of MSHA citations for safety violations that the government spent hours asking Mr. Blanchard to read and ratify. See Tr. 3701-11; ECF 476. There is at least a substantial question whether denying Mr. Blankenship any opportunity to cross examine on these critical subjects was reversible error. In United States v. Caudle, 606 F.2d 451 (4th Cir. 1979), the Court recognized that the Sixth Amendment rights to confront and cross-examine witnesses “apply with equal strength to recross examination where new matter is brought out on redirect examination.” Id. at 457-58. Where . . . new matter is brought out on redirect examination, the defendant’s first opportunity to test the truthfulness, accuracy, and completeness of that testimony is on recross examination. To deny recross examination on matter first drawn out on redirect is to deny the defendant the right of any cross-examination as to that new matter. The prejudice of the denial cannot be doubted. Id. (citations omitted).4 Caudle distinguished between a court’s discretion as to the extent of cross-examination on new matter and the absence of discretion to deny cross-examination altogether: 4 Other circuits recognize the right to confront new matter elicited during redirect examination. United States v. Riggi, 951 F.2d 1368, 1375 (3d Cir. 1991); 21 Appeal: 16-4193 Doc: 9-1 Filed: 04/12/2016 Pg: 25 of 37 Total Pages:(25 of 52) Since the defendant did not have an opportunity to exercise the right of cross-examination on this issue, the trial court’s discretion to limit cross-examination simply did not become operative. Put another way, the trial court does not have discretion to curtail cross-examination until after the questioner has had a reasonable chance to pursue the matters raised on direct. Id. at 459. 1. Testimony Regarding Existence of Alleged Conspiracy. The government asked only three tentative, limited questions on direct examination about a vague “understanding at UBB.” Mr. Blanchard testified that (1) there was an understanding “that a certain number of safety violations would be written that could have been prevented,” Tr. 2245; (2) there was an understanding “that it was cheaper … to pay the fines for the safety violations than the cost of preventing all the violations,” Tr. 2245-46 (emphasis added); and (3) he thought Mr. Blankenship “shared the same opinion” that it was cheaper to pay fines than prevent all such violations, Tr. 2246. On cross-examination, Mr. Blanchard testified that he had committed no crime, Tr. 2540-41 & 3309-10, and that there was no conspiracy and no spoken or unspoken agreement to willfully violate mine safety standards, e.g., Tr. 2529, 2593, 2582-83, 2694, 3309-12. He testified that the documents and conversations United States v. Ross, 33 F.3d 1507, 1518 (11th Cir. 1994); United States v. Payne, 437 F.3d 540, 547 n.5 (6th Cir. 2006); Hale v. United States, 435 F.2d 737, 749-50 (5th Cir. 1970). 22 Appeal: 16-4193 Doc: 9-1 Filed: 04/12/2016 Pg: 26 of 37 Total Pages:(26 of 52) reflecting communications with Mr. Blankenship that the government covered on direct examination were not instructions by Mr. Blankenship to violate the law. E.g., Tr. 2527, 2545, 2650-51. He testified that Mr. Blankenship did not want safety violations, that Mr. Blankenship wanted UBB to reduce violations and to comply with regulations, and that Mr. Blankenship ordered him and others to reduce violations. Tr. 2529, 2648-49, 2679, 2948-49, 3020, 3043, 3312. In redirect, the government for the first time attacked its own witness’ credibility. The first words from the prosecutor were, “Mr. Blanchard . . . [w]e have a lot to talk about.” Tr. 3320. Next, the prosecutor emphasized to Mr. Blanchard that he could be prosecuted for perjury if his grand jury testimony was untruthful. Tr. 3320. This was the first mention of any grand jury testimony. Then, through a series of leading questions reiterating the grand jury testimony, the government elicited testimony about statements that Mr. Blankenship allegedly made that tracked the core of the government’s theory of conspiracy. The government asked for the first time “whether the defendant told you or said words to the effect that he saw it as cheaper to break the safety laws and pay the fines than to spend what would be necessary to follow the safety laws[?]” Mr. Blanchard: “That was the implication.” Tr. 3322 (emphasis added). The government further asked for the first time “whether that was your understanding from conversations that you had with the defendant?” Mr. Blanchard: “Yes, sir.” 23 Appeal: 16-4193 Doc: 9-1 Filed: 04/12/2016 Tr. 3322-23 (emphasis added). Pg: 27 of 37 Total Pages:(27 of 52) And the government asked for the first time “whether the defendant told you that safety violations were the cost of doing business the way he wanted it done, or words to that effect?” Mr. Blanchard: “To that effect.” Tr. 3323 (emphasis added). This testimony about allegedly incriminating statements by Mr. Blankenship was new and important to the government. The government relied on and closely paraphrased it in closing argument. Tr. 5957. Indeed, the government offered no other alleged co-conspirator who could admit or deny a conspiratorial agreement. Recognizing that the testimony consisted of answers to leading questions framed by the government to avoid the factual context of any statement and to embed questions with the vague qualifier “to that effect,” the government sought to shield the new testimony from cross-examination by raising it for the first time during redirect examination. Testimony that raised the question whether defendant made statements “to th[e] effect” and with that “implication” cried out for searching cross-examination about what Mr. Blankenship actually said, when he said it, where, to whom, in what context, etc. The government carefully avoided eliciting that detail from its witness. It was important to the defense to cross-examine to test and clarify the accusatory new matter elicited in the redirect examination. 24 Appeal: 16-4193 Doc: 9-1 Filed: 04/12/2016 Pg: 28 of 37 Total Pages:(28 of 52) Likewise, cross-examination was important to permit Mr. Blanchard to reconcile his (purportedly inculpatory) grand jury testimony with the highly exculpatory testimony that he had given on cross-examination. The government’s references to perjury and its use of the prior grand jury testimony were done to suggest that Mr. Blanchard had lied on cross-examination. The government’s restrictive questions on redirect examination left no opportunity for explanation from Mr. Blanchard and no opportunity to reconcile his cross-examination testimony with his grand jury testimony. Only further cross-examination by the defense could have given Mr. Blanchard that important opportunity to dissipate the government’s suggestion that Mr. Blanchard had lied on cross examination – as well as the opportunity to show that the government’s questions in the grand jury had been negotiated and rehearsed in advance in a way that left them vague and allowed for no elaboration.5 5 Tr. 3705 (“On the Grand Jury testimony itself . . . some of the questions are out of context and deserve, in Mr. Blankenship’s defense and in fairness to Mr. Blanchard, that he clarify.”) (emphasis added); ECF 476 at 1 (“This is the first time that the substance of Mr. Blanchard’s grand jury testimony was raised in the trial. And the government used it to suggest that Mr. Blanchard lied on crossexamination when he testified that no conspiracy existed and to suggest that he testified to the contrary in the grand jury. It pointed to a number of questions put to him in the grand jury which it contends support its case but which have context that we should be entitled to examine about.”); Tr. 3721 (noting “confining nature of the grand jury testimony” and need to clarify such testimony “taken out of context”). 25 Appeal: 16-4193 Doc: 9-1 Filed: 04/12/2016 Pg: 29 of 37 Total Pages:(29 of 52) The testimony elicited on redirect examination was newer and more significant than the testimony on redirect that prompted this Court’s reversal in Caudle. That case concerned the truthfulness of a statement that a Dr. Levy had prepared a report. On direct examination by the government, Dr. Levy testified generally about his involvement in the report’s preparation, including that that he essentially provided a limited first draft and thereafter provided some materials for and validated some information in the report. 606 F.2d at 455. On cross by the defendants, Dr. Levy testified that he knew others would compile the final report bearing his name, that he did not object, and that he reviewed and adopted the finished product and then signed a document saying that he had prepared the report. Id. On redirect, the government then did what it had not done on direct; it “took Dr. Levy through a page-by-page examination” of the report that had been discussed on direct and cross and had him identify exactly what he had written and had not written. Id. The defense sought “the same privilege that the United States Attorney had in going through these individual pages,” id. at 456, but the trial court denied any cross-examination. This Court held that the trial court thus denied the defendants’ Sixth Amendment right to confront the evidence through crossexamination “of Dr. Levy as to what part of each page of the [report] was his original work.” Id. at 459. That was true even though the report had been addressed generally in direct testimony, but not on a page-by-page basis. 26 Appeal: 16-4193 Doc: 9-1 Filed: 04/12/2016 Pg: 30 of 37 Total Pages:(30 of 52) Here, in contrast with Caudle, Mr. Blanchard’s testimony about the defendant’s statements had not been covered on direct. Neither the grand jury testimony nor any impeachment of Mr. Blanchard had been covered on direct. All of those subjects were new when introduced for the first time during the government’s redirect. The denial of any opportunity to cross-examine that critical testimony cannot be squared with Caudle. 2. Testimony Regarding Dozens of New MSHA Citation Exhibits. On redirect, the government also used more than 40 new exhibits consisting of MSHA citations and orders. Gov’t Exs. 328-29, 331, 339, 344-360, 362-63, 365-70, 376-78, 381-88, 390, 394. Over objection, Tr. 3405-06, 3485-86, 3493-94, the government examined Mr. Blanchard over the course of two days about the contents of the new exhibits. It had him read the hearsay facts alleged in the citations, asked Mr. Blanchard if he disagreed with the citations (i.e., if they were true), and asked if the violations were preventable. The government also asked, as to each new citation exhibit, whether Mr. Blanchard was aware that the citation was included in reports sent to Mr. Blankenship. Tr. 3409-13, 3395, 3479-83; see ECF 476 at 2-3. That gave the jury the misleading impression that Mr. Blankenship actually knew the contents of each of the citations, when in fact he only received reports listing and summarizing citations. ECF 472 at 14 (government’s admission that Mr. Blankenship “did not receive the citations 27 Appeal: 16-4193 Doc: 9-1 Filed: 04/12/2016 Pg: 31 of 37 Total Pages:(31 of 52) themselves or the particular details of the citations”); ECF. No. 476 at 2-3; Gov’t Ex. 42 (daily violation reports sent to Mr. Blankenship, simply summarizing number and types of some citations). Over objection, the Court admitted the citations with a limiting instruction that they were not offered for the truth but only to show Mr. Blankenship’s notice of citations. Tr. 3459. Admission of the citations with that instruction confirmed the inaccurate implication of the government’s questions to Mr. Blanchard that Mr. Blankenship actually saw them. Because the defense could not cross-examine Mr. Blanchard about the differences between the contents of the citations and the reports seen by Mr. Blankenship, the jury was left with a false impression that Mr. Blankenship knew of the citations’ contents. The defense also could not explore whether Mr. Blanchard had personal knowledge about the facts discussed in the citations when he was asked on redirect, notwithstanding the limited admission of the exhibits, if he disagreed with the citations and if they were preventable. In closing argument, the government emphasized this testimony. Tr. 5841 (“You also heard Chris Blanchard talk about all the citations, many, many citations about these particular conditions and that these were the kinds of conditions that were readily preventable.”). The lengthy testimony on redirect regarding the citations addressed new matter and should have been subjected to cross-examination. Tr. 3701, 3705, 28 Appeal: 16-4193 Doc: 9-1 Filed: 04/12/2016 Pg: 32 of 37 Total Pages:(32 of 52) 3731-33 (stating grounds for request to recross); ECF 476 at 2-3 (same); Tr. 372631, 3733-34 (denying recross). Just as the defendants in Caudle had a Sixth Amendment right to conduct the same page-by-page examination of the report at issue in that case, a fortiori Mr. Blankenship was entitled to cross-examine on important matters involving two days of testimony about a pile of new exhibits. D. The District Court Gave An Erroneous Reasonable Doubt Instruction. “It is well settled in this circuit that a district court should not attempt to define the term ‘reasonable doubt’ in a jury instruction absent a specific request for such a definition from the jury.” United States v. Oriakhi, 57 F.3d 1290, 1300 (4th Cir. 1995); accord, United States v. Reives, 15 F.3d 42, 45 (4th Cir. 1994) (“[W]e have consistently and vigorously condemned the attempts of trial courts to define reasonable doubt” except “when a jury asks for a definition.”). Here, over defense objection, Tr. 5672-77, and without any request from the jury, the Court gave the following explanation of reasonable doubt to the jury. “If the jury views the evidence in the case as reasonably permitting either of two conclusions—one of innocence, the other of guilt—the jury should, of course, adopt the conclusion of innocence.” Tr. 5794. This language appears to have been removed from a longer pattern instruction found in Kevin F. O’Malley, et al., Federal Jury Practice & Instructions § 12:10, but was given to the jury 29 Appeal: 16-4193 Doc: 9-1 Filed: 04/12/2016 Pg: 33 of 37 Total Pages:(33 of 52) unaccompanied by any of the other language from the model instruction that explains reasonable doubt. The District Court’s sua sponte explanation of reasonable doubt unconstitutionally lessened the government’s burden of proof. By instructing the jury that it should acquit if the evidence of guilt and of innocence were equally plausible, the District Court effectively instructed the jury that it could convict if the evidence of guilt were even slightly more plausible. That reduced the government’s burden to the preponderance of the evidence standard applicable in a civil case. The Court acknowledged in the charge conference that the instruction would tell the jury, “if, as you say, it’s a tie, they must acquit.” Tr. 5673. Not surprisingly, the government stated that it was “satisfied” with the instruction as “providing another definition or another expression of what reasonable doubt means.” Tr. 5674-75. The Court then compounded error by rejecting a defense request for instructions that could have placed the objectionable instruction in a more correct context.6 The rejected instructions—unlike the excerpt given by the District Court—track instructions approved by this Court. United States v. Moss, 756 F.2d 6 “A reasonable doubt is the kind of doubt that would make a reasonable person hesitate to act in the graver or more important matters in life. Proof beyond a reasonable doubt must, therefore, be proof of such a convincing character that a reasonable person would not hesitate to rely and act upon it in the most important of his or her own affairs.” ECF 357-2 at 35; see Tr. 5677. 30 Appeal: 16-4193 Doc: 9-1 Filed: 04/12/2016 329, 333-34 (4th Cir. 1985). Pg: 34 of 37 Total Pages:(34 of 52) The District Court also rejected a corrective instruction that could have partially diminished the effect of defining reasonable doubt in terms of a tie in the evidence: “The burden on the government to prove guilt beyond a reasonable doubt is the highest burden of proof in our legal system and the most difficult to meet.” ECF 357-2 at 34 (Def’s Prop. Inst. 32); see Tr. 5675 (rejecting instruction). That was “precisely the type of ameliorating instruction[]” this Court has found essential to “render[ing] harmless any confusion engendered by” a district court’s attempt to define reasonable doubt. Moss, 756 F.2d at 334 (instruction on “government’s heavy burden of proof” helped “neutralize[]” prejudice from challenged reasonable doubt instruction).7 Ironically, the District Court “unhappily refuse[d]” all the remedying instructions the defense requested, relying on the Fourth Circuit rule that reasonable doubt ordinarily not be explained. Tr. 5677, 5675-76 (“[C]oming from State Court to Federal Court it was an eye opener for me that I couldn’t define ‘reasonable doubt’ for the jury.”). Of course if the District Court had followed the rule against explaining reasonable doubt, then the erroneous instruction would not have been given in the first place. 7 The entire pattern instruction from which the District Court took the challenged language contains the type of additional instructions that the defense requested here to provide necessary context to the bare instruction that an evidentiary tie entitles the defendant to acquittal. Nothing in the record explains why the District Court plucked the offending language from these other provisions of the model instruction. 31 Appeal: 16-4193 Doc: 9-1 Filed: 04/12/2016 Pg: 35 of 37 Total Pages:(35 of 52) Several circuits have disapproved the exact explanatory instruction that the District Court gave here. E.g., United States v. Dowlin, 408 F.3d 647, 666-67 (10th Cir. 2005) (“the language is imprecise and should not be used”). In Dowlin the defense had not, however, objected. Thus there was no plain error requiring reversal inasmuch as the trial court gave other instructions (“[t]he saving grace”) distinguishing reasonable doubt from a preponderance of the evidence and defining reasonable doubt in the same terms unsuccessfully requested by Mr. Blankenship – “the kind of doubt arising, after consideration of all the evidence, that would cause reasonable people to hesitate to act upon it when conducting the more serious and important affairs in their own lives.” Id. at 665 n.9. There is no saving grace in this case. The erroneous instruction explaining reasonable doubt was the only explanation of the concept given. Because Mr. Blankenship vigorously objected to the faulty instruction, the standard of review is not plain error. In view of “[t]he underlying premise” in this Court’s reasonable doubt jurisprudence “that trying to explain things will confuse matters,” Reives, 15 F.3d at 46, the challenged instruction, coupled with the Court’s failure to give corrective instructions, presents a question that “very well could be decided the other way.” Steinhorn, 927 F.2d at 196 (citation omitted). An erroneous reasonable doubt instruction is a structural error, Johnson v. United States, 520 U.S. 461, 469 32 Appeal: 16-4193 Doc: 9-1 Filed: 04/12/2016 Pg: 36 of 37 Total Pages:(36 of 52) (1997); United States v. Curbelo, 343 F.3d 273, 281 (4th Cir. 2003), requiring reversal. CONCLUSION There are substantial questions for this Court to consider on appeal. Mr. Blankenship should not serve his twelve-month sentence before appellate proceedings are concluded. He should be released as 18 U.S.C. § 3143(b) requires. Dated: April 12, 2016 Respectfully submitted, /s/ William W. Taylor, III William W. Taylor, III Michael R. Smith Eric R. Delinsky ZUCKERMAN SPAEDER LLP 1800 M Street, NW Washington, DC 20036 202-778-1800 (phone) 202-841-8106 (fax) wtaylor@zuckerman.com msmith@zuckerman.com edelinsky@zuckerman.com Counsel for Donald L. Blankenship 33 Appeal: 16-4193 Doc: 9-1 Filed: 04/12/2016 Pg: 37 of 37 Total Pages:(37 of 52) CERTIFICATE OF SERVICE I hereby certify that the foregoing has been electronically filed and service has been made by virtue of such electronic filing this 12th day of April, 2016 on: Steven R. Ruby U.S. Attorney’s Office P.O. Box 1713 Charleston, WV 25326-1713 R. Gregory McVey U.S. Attorney’s Office 845 Fifth Avenue, Room 209 Huntington, WV 25701 /s/ Eric R. Delinsky Eric R. Delinsky Appeal: 16-4193 Doc: 9-2 Filed: 04/12/2016 Pg: 1 of 8 Total Pages:(38 of 52) EXHIBIT A Appeal: 16-4193 Doc: 9-2 Filed: 04/12/2016 Pg: 2 of 8Page 1 of 7 PageIDTotal Pages:(39 of 52) Case 5:14-cr-00244 Document 589 Filed 04/07/16 #: 15273 $2 % 5HY -XGJPHQW LQ D &ULPLQDO &DVH 6KHHW 81,7(' 67$7(6 ',675,&7 &2857 Southern District of West Virginia BBBBBBBBBB 'LVWULFW RI BBBBBBBBBB JUDGMENT IN A CRIMINAL CASE 81,7(' 67$7(6 2) $0(5,&$ v. DONALD L. BLANKENSHIP &DVH 1XPEHU 5:14-cr-00244-01 860 1XPEHU 12393-088 William W. Taylor, III; Blair G. Brown; Eric R. Delinsky; James A. 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BLANKENSHIP '()(1'$17 &$6( 180%(5 5:14-cr-00244-01 -XGJPHQW²3DJH 4 RI 7 ADDITIONAL STANDARD CONDITIONS OF SUPERVISION While on supervised release, the defendant must not commit another federal, state, or local crime, must not possess a firearm or other dangerous device, and must not unlawfully possess a controlled substance. The defendant must also comply with the standard terms and conditions of supervised release as recommended by the United States Sentencing Commission and as adopted by the United States District Court for the Southern District of West Virginia, except that the defendant shall not be required to participate in a program of testing, counseling, and treatment for drug and alcohol abuse. In addition, the defendant shall comply with the Standard Conditions of Supervision adopted by the Southern District of West Virginia in Local Rule of Criminal Procedure 32.3, as follows: 1) If the defendant is unemployed, the probation officer may direct the defendant to register and remain active with Workforce West Virginia; and 2) A term of community service is imposed on every defendant on supervised release or probation. Fifty hours of community service is imposed on every defendant for each year the defendant is on supervised release or probation. The obligation for community service is waived if the defendant remains fully employed or actively seeks such employment throughout the year. Appeal: 16-4193 Doc: 9-2 Filed: 04/12/2016 Pg: 6 of 8Page 5 of 7 PageIDTotal Pages:(43 of 52) Case 5:14-cr-00244 Document 589 Filed 04/07/16 #: 15277 $2 % 5HY -XGJPHQW LQ D &ULPLQDO &DVH 6KHHW & ² 6XSHUYLVHG 5HOHDVH DONALD L. BLANKENSHIP '()(1'$17 &$6( 180%(5 5:14-cr-00244-01 -XGJPHQW²3DJH 5 RI 7 SPECIAL CONDITIONS OF SUPERVISION If the defendant does not pay the $250,000 fine immediately, the following special conditions of supervised release shall apply: 1) The defendant shall provide the probation officer access to any requested personal or business-related financial information; 2) The defendant shall be prohibited from incurring new credit charges or opening additional lines of credit without approval of the probation officer until all monetary assessments have been satisfied; 3) The defendant shall apply all monies received from income tax refunds, lottery winnings, judgments, and any other anticipated or unanticipated financial gains to any outstanding Court imposed monetary obligations; and 4) The defendant shall pay the fine during his term of incarceration through participation in the Bureau of Prisons' Inmate Financial Responsibility Program in monthly installments of $25 each with any balance to be paid during the defendant's term of supervised release through monthly installments of no less than $25,000 each, with the first payment being due within ten day of the defendant's release from custody. Appeal: 16-4193 Doc: 9-2 Filed: 04/12/2016 Pg: 7 of 8Page 6 of 7 PageIDTotal Pages:(44 of 52) Case 5:14-cr-00244 Document 589 Filed 04/07/16 #: 15278 $2 % 5HY -XGJPHQW LQ D &ULPLQDO &DVH 6KHHW ² &ULPLQDO 0RQHWDU\ 3HQDOWLHV -XGJPHQW ² 3DJH DONALD L. 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BLANKENSHIP 7 RI 7 '()(1'$17 &$6( 180%(5 5:14-cr-00244-01 SCHEDULE OF PAYMENTS +DYLQJ DVVHVVHG WKH GHIHQGDQW¶V DELOLW\ WR SD\ SD\PHQW RI WKH WRWDO FULPLQDO PRQHWDU\ SHQDOWLHV LV GXH DV IROORZV A /XPS VXP SD\PHQW RI ✔ G G ✔ G QRW ODWHU WKDQ LQ DFFRUGDQFH 250,025.00 GXH LPPHGLDWHO\ EDODQFH GXH RU G & G ' G ( RU B G 3D\PHQW WR EHJLQ LPPHGLDWHO\ PD\ EH FRPELQHG ZLWK C G 3D\PHQW LQ HTXDO D G 3D\PHQW LQ HTXDO G ✔ ) EHORZ RU G & G ' RU G ) EHORZ RU (e.g., weekly, monthly, quarterly) LQVWDOOPHQWV RI RYHU D SHULRG RI (e.g., months or years) WR FRPPHQFH (e.g., 30 or 60 days) DIWHU WKH GDWH RI WKLV MXGJPHQW RU (e.g., weekly, monthly, quarterly) LQVWDOOPHQWV RI RYHU D SHULRG RI (e.g., months or years) WR FRPPHQFH (e.g., 30 or 60 days) DIWHU UHOHDVH IURP LPSULVRQPHQW WR D WHUP RI VXSHUYLVLRQ RU E G 3D\PHQW GXULQJ WKH WHUP RI VXSHUYLVHG UHOHDVH ZLOO FRPPHQFH ZLWKLQ (e.g., 30 or 60 days) DIWHU UHOHDVH IURP LPSULVRQPHQW 7KH FRXUW ZLOO VHW WKH SD\PHQW SODQ EDVHG RQ DQ DVVHVVPHQW RI WKH GHIHQGDQW¶V DELOLW\ WR SD\ DW WKDW WLPH RU F 6SHFLDO LQVWUXFWLRQV UHJDUGLQJ WKH SD\PHQW RI FULPLQDO PRQHWDU\ SHQDOWLHV ✔ G Both the $25 special assessment and the $250,000 fine are due immediately. 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BLANKENSHIP, April 6, 2016 Defendant. x SENTENCING HEARING BEFORE THE HONORABLE IRENE C. BERGER UNITED STATES DISTRICT JUDGE APPEARANCES: For the United States: 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 Appeal: 16-4193 Doc: 9-3 Filed: 04/12/2016 1 THE DEFENDANT: 2 THE COURT: Pg: 3 of 7 Total Pages:(48 of 52) 72 Yes, ma'am. If you want to appeal and if the Court 3 finds for some reason -- I'm required to say this to you -- 4 that you don't have the money to procure transcripts or 5 other documents necessary to effect your appeal or to pay 6 for the services of an attorney, those costs will be borne 7 by the United States. 8 9 10 Do you also understand that? THE DEFENDANT: THE COURT: Yes. Your sentence is a final judgment. I 11 can't release you from prison or reduce or modify your 12 sentence unless the Director of the Bureau of Prisons makes 13 such a request or unless the Government files a motion 14 pursuant to Rule 35 for substantial assistance. 15 So letters written to me asking me to change, reduce, 16 or modify it would be of no consequence. 17 Do you understand that as well? 18 THE DEFENDANT: 19 THE COURT: Yes. Because you were released on a surety 20 bond pending sentencing, the Bail Reform Act permits me to 21 allow you to surrender voluntarily if there's clear and 22 convincing evidence that you're not likely to flee and not 23 likely to pose a danger to any other person or to the 24 community if released. 25 I find, Mr. Blankenship, that you should be permitted Appeal: 16-4193 Doc: 9-3 Filed: 04/12/2016 Pg: 4 of 7 Total Pages:(49 of 52) 73 1 to report voluntarily based on your conduct while on bond 2 and the financial incentive to surrender, as well as the 3 release status report and, most importantly, my finding that 4 your conduct while on bond for the past year and a half 5 constitutes clear and convincing evidence that you're not 6 likely to flee and not likely to cause harm to any other 7 person. 8 Accordingly, I order that you be permitted to surrender 9 voluntarily at the institution designated by the Bureau of 10 Prisons as notified by the United States Marshal, and that 11 you remain released on the previously executed 12 one-million-dollar surety bond subject to the conditions set 13 forth in the prior order. 14 I have reviewed the defendant's motion for continued 15 release pending appeal, the Government's response, as well 16 as the reply which was filed somewhat late yesterday. 17 after careful consideration of the arguments in those 18 documents, I order that the motion be denied and that you 19 report when ordered to do so. 20 21 22 23 24 25 And I preserve your, Mr. Blankenship, objection and exception to my denying that particular motion. Before I conclude the hearing, Mr. Blankenship, I want to advise you of a couple of things. First, if you knowingly fail to report as ordered, I can impose an additional sentence up to one year and an Appeal: 16-4193 1 Doc: 9-3 Filed: 04/12/2016 Pg: 5 of 7 Total Pages:(50 of 52) 74 additional fine up to $250,000. 2 If you commit any offense while you're awaiting 3 voluntary surrender, if it's a felony I can impose a 4 sentence up to 10 years. 5 impose a sentence up to one year. 6 that sentence would run consecutively to the sentence I've 7 imposed today, not concurrently with that sentence. 8 And in either situation, Do you understand that as well? 9 THE DEFENDANT: 10 11 If it's a misdemeanor, I can THE COURT: Yes. Counsel, are there other matters that need to be addressed here this morning? 12 MR. TAYLOR: Your Honor, will you grant a stay of 13 10 days on the reporting order during which we seek bail 14 from the Court of Appeals? THE COURT: 15 You, if I understand, are asking that 16 from the time that he's ordered to report that I grant a 17 stay of 10 days or 10 days now? 18 MR. TAYLOR: 19 THE COURT: From today. I will order -- and I don't think, 20 Mr. Taylor, that he will be ordered to report in the next 10 21 days. 22 report before the expiration of 10 days from today's date. 23 24 25 And I will certainly order that he not be required to Mr. Ruby. MR. RUBY: No objection to that, Your Honor. I can't imagine that the reporting date will be any sooner Appeal: 16-4193 1 2 3 4 Doc: 9-3 Filed: 04/12/2016 Pg: 6 of 7 Total Pages:(51 of 52) 75 than a couple of months. THE COURT: We would expect it to be longer, in other words, based on the practice, Mr. Taylor. MR. TAYLOR: Well, I don't want to take that risk. 5 So I, I just want to be clear with the Court that we, we do 6 intend to seek bail from the Court of Appeals. 7 THE COURT: 8 MR. TAYLOR: 9 Yes, sir. We'll do it expeditiously. And I would not, I would not want to have a reporting order become 10 effective while the application for bail is pending before 11 the Court of Appeals. 12 of things that won't happen. 13 that, that in no event will he be required to report in less 14 than 10 days. 15 bail in the Court of Appeals. 16 THE COURT: 17 Yes. 19 THE COURT: 20 MR. RUBY: 21 THE COURT: 24 25 I order that he not be ordered to report sooner than 10 days from today's date. MR. TAYLOR: 23 But you've ruled, I think, And we'll, we'll promptly file a motion for 18 22 It seems like in the ordinary course Thank you. Other matters? Nothing from us, Your Honor. All right. You all have a good afternoon. (Proceedings concluded at 12:14 p.m.) Appeal: 16-4193 1 Doc: 9-3 Filed: 04/12/2016 Pg: 7 of 7 Total Pages:(52 of 52) 76 I, Lisa A. Cook, Official Reporter of the United 2 States District Court for the Southern District of West 3 Virginia, do hereby certify that the foregoing is a true and 4 correct transcript, to the best of my ability, from the 5 record of proceedings in the above-entitled matter. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 s\Lisa A. Cook Reporter April 7, 2016 Date