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UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
Beckley Division

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UNITED STATES OF AMERICA
Plaintiff,
v.

DONALD L. BLANKENSHIP
Defendant.

Criminal No. 5:14-CR-00244

MOTION TO VACATE AND SET ASIDE DEFENDANT’S
CONVICTION AND SENTENCE PURSUANT TO 28 U.S.C. § 2255
Donald L. Blankenship, by and through counsel, respectfully moves this court to vacate
set aside, and correct his sentence and conviction as contrary to the laws and Constitution of the
United States pursuant to 28 U.S.C. § 2255.
INTRODUCTION
1.

Don Blankenship was charged by indictment on November 13, 2014 with several

felony offenses and one misdemeanor offense related to an explosion at the Upper Big Branch
(“UBB”) mine owned by his company, Massey Energy. The charges were vigorously contested
by Mr. Blankenship, and his attorneys served numerous formal and informal demands for
discovery on the prosecution team. This Court ordered the government to disclose all Brady
information and to specify that information to the defense. On December 3, 2015, after trial and
after lengthy deliberations – punctuated by several Allen charges – the jury acquitted Mr.
Blankenship on all felony counts. The jury convicted, however, on the misdemeanor charge of
conspiracy to violate mine safety regulations.
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2.

After trial and sentencing, something extraordinary occurred. Mr. Blankenship

and his counsel continued to assert his right to discovery of exculpatory and other information
required for his defense. After the two attorneys who led the prosecution of Mr. Blankenship left
the United States Attorney’s Office, the government began to produce reports and other
information that were responsive to Mr. Blankenship’s discovery requests that it had not
disclosed pre-trial. In a series of letters stretching from January 31, 2017 to April 6, 2018, the
government provided to Mr. Blankenship sixty-one previously undisclosed memoranda of
interview (“MOI”), forty-eight previously undisclosed emails, and nine other previously
undisclosed documents. The sheer quantity of withheld information is staggering, and its quality
would have made it essential to Mr. Blankenship’s defense. Included in this never-beforedisclosed information are five MOIs each for the government’s two main witnesses. The
materials also include internal Mine Safety and Health Administration (“MSHA”) emails that
directly contradict the government’s theory of prosecution. In addition, the materials include
documents reflecting sanctions imposed on MSHA officials for their performance of their
official duties – evidence which corroborates a central part of Mr. Blankenship’s defense. This
mountain of undisclosed information includes exculpatory Brady material, impeaching Giglio
material, and witness Jencks material, among other things.
3.

There is no lawful basis by which these materials could have been withheld. The

Department of Justice, for its own part, has referred these matters to its Office of Professional
Responsibility (“OPR”) for investigation. OPR has not yet released its report and findings, but
Mr. Blankenship expects that the report will issue in the near future. Mr. Blankenship anticipates
that the findings of the OPR report will add material information to the subject matter of this
Motion.

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4.

The full scope of the prosecution’s conduct in this matter is still coming to light.

Mr. Blankenship has received new information from the government as recently as April 8,
2018. And the findings of OPR will no doubt shed further light on this matter. Mr. Blankenship
brings this Motion to vindicate his constitutional and other rights. The prosecution if this case
deprived Mr. Blankenship of his constitutional right to a fair trial, violated the Jencks Act,
violated this Court’s discovery orders, and made material misrepresentations to Mr.
Blankenship’s defense counsel and to the Court. The conviction of Mr. Blankenship that
resulted from this terribly flawed process cannot stand. The jury that convicted Mr. Blankenship
deliberated for nine days and twice told the judge that it could not agree on a verdict. Ultimately,
it convicted Mr. Blankenship on only a single, misdemeanor count. In short, this was an
extremely close call. The newly disclosed evidence, withheld by the prosecution until after trial,
would have tipped the balance in Mr. Blankenship’s favor. As a result, Mr. Blankenship’s
conviction and sentence was imposed in violation of the Constitution and laws of the United
States. Therefore, this Court should vacate and set aside that conviction and sentence
PROCEDURAL HISTORY
5.

On November 13, 2014, a grand jury in the Southern District of West Virginia

(S.D.W.Va.) indicted Mr. Blankenship. United States v. Donald L. Blankenship, Crim. No. 5:14cr-00244 (ECF No. 1).1 As amended by the superseding indictment on March 10, 2015,
prosecutors charged Mr. Blankenship with three counts: (1) conspiracy to both willfully violate
federal mine safety and health standards in violation of 18 U.S.C. §371 and 30 U.S.C. § 820(d)
and to defraud the United States in violation of 18 U.S.C. § 371; (2) false statements to the
Securities and Exchange Commission in violation of 18 U.S.C. §1001; and (3) false statements

1

All ECF numbers cited herein refer to this docket.
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in connection with the sale or purchase of securities in violation of 18 U.S.C. §78ff. (ECF No.
169). Mr. Blankenship pled not guilty to all counts.
6.

Mr. Blankenship was tried before a jury sitting in the S.D.W.V. He did not testify

at trial. On December 3, 2015, the jury convicted Mr. Blankenship on Count 1, but only as to the
conspiracy to violate Mine Safety regulations. (ECF No. 529) The jury acquitted Mr.
Blankenship on Counts 2 and 3. (Id.). The district court entered a judgment of conviction on
December 10, 2015. (ECF. No. 553)
7.

On April 6, 2016, the district court sentenced Mr. Blankenship to twelve months

incarceration followed by one year of supervised release, as well as a $250,000 fine and a $25
special assessment. (ECF No. 589). Prosecutors objected to Mr. Blankenship remaining on
bond pending appeal.
8.

Mr. Blankenship filed a timely appeal to the Fourth Circuit. (ECF No. 591; Case

No. 16-4193). He argued that: (1) the indictment insufficiently alleged a violation of 30 U.S.C. §
820(d); (2) that the district court improperly denied re-cross examination of an alleged coconspirator, Chris Blanchard; (3) that the district court incorrectly instructed the jury regarding
the meaning of “willfully” as used in 30 U.S.C. §820(d); and (4) the district court incorrectly
instructed the jury as to the government’s burden of proof. The Fourth Circuit affirmed Mr.
Blankenship’s conviction on January 19, 2017. United States v. Blankenship, 846 F.3d 663 (4th
Cir. 2017).
9.

Mr. Blankenship petitioned the United States Supreme Court for a writ of

certiorari. (ECF No. 655; Case No. 16-1413). He raised the following two issues in his petition:
that the district court (1) incorrectly instructed the jury regarding the meaning of willfully, and

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(2) improperly denied re-cross examination of Mr. Blanchard. The Supreme Court denied
certiorari on October 10, 2017. 138 S.Ct. 315 (2017).
10.

Mr. Blankenship has filed no other motions, petitions, or applications concerning

the judgment of conviction in any court.
JURISDICTION
11.

This Court has jurisdiction over this motion as it imposed Mr. Blankenship’s

sentence. 28 U.S.C. § 2255(a).
12.

Mr. Blankenship is presently in custody within the meaning of Section 2255 as he

is serving a term of supervised release under the supervision of Probation and Pretrial Services
for the District of Nevada. See United States v. Swaby, 855 F.3d 233, 238-39 (4th Cir. 2017); see
also Maleng v. Cook, 490 U.S. 488, 491-92 (1989). His term of supervised release ends on May
9, 2018.2
13.

This motion is timely because it has been filed within one year of the date on

which the judgment of conviction became final. 28 U.S.C. §2255(f)(1); Clay v. United States,
537 U.S. 522, 527 (2003) (judgment of conviction becomes final when the U.S. Supreme Court
denies petition for writ of certiorari).
STATEMENT OF FACTS
14.

Zuckerman Spaeder (“Zuckerman”) represented Mr. Blankenship in the pre-trial,

trial, and appellate proceedings. Throughout the proceedings, the Zuckerman defense team
raised concerns to the prosecution and the Court about the adequacy of the prosecution’s
2

A motion under Section 2255 does not become moot when the custodial sentence terminates if
the movant continues to suffer collateral consequences that flow from the conviction. Carafas v.
LaVallee, 391 U.S. 234, 237-38 (1968); Swaby, 855 F.3d at 239 n. 2. The Fourth Circuit has
held that payment of a fine or restitution upon conviction – as done by Mr. Blankenship here –
qualifies as a collateral consequence sufficient to keep a Section 2255 motion from becoming
moot. Nakell v. Att’y Gen. of North Carolina, 15 F.3d 319, 322 (4th Cir. 1994).
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disclosure of Brady material. In addition to informal requests, the defense filed multiple motions
seeking exculpatory and impeachment material.3 The government consistently replied that it had
provided the defense with all documents required by Brady, Giglio, and Jencks, as well as the
Court’s orders regarding discovery.4
15.

The government provided its initial discovery on December 4, 2015 and January

29, 2015. On April 15, 2015, the defense emailed Assistant U.S. Attorney Steve Ruby and asked
him to confirm “that all of the memoranda of interviews that the government conducted as part
of its investigation, as well as the documents used during those interviews . . . have been
provided to the defense.” The defense also requested a complete list of all interviews conducted.
AUSA Ruby responded on April 21, 2015 with a list of interviews.
16.

On June 12, 2015, in response to a defense motion, this Court ordered the

government to “specifically designate any known Brady material as such and disclose the same
3

Zuckerman also sent a number of communications directly to the USAO seeking the same
material. Motions filed with the court that sought exculpatory material include: Motion to
Enforce The Government’s Brady Obligations (Feb. 6, 2015) (ECF No. 111); Motion to Compel
the Government to Identify in its Production Brady and Rule 16(a)(1) Material (Apr. 28, 2015)
(ECF No. 245); Motion to Compel Production of Witness Interview Notes and Records of
Attorney Proffers Containing Brady Information (May 6, 2015) (ECF No. 248); Motion to
Compel Compliance with Brady Order and for Other Appropriate Relief (July 8, 2015) (ECF No.
283); and Motion to Compel Compliance with Subpoena, for Production of Brady, Rule 16, and
Jencks Material, and for Evidentiary Hearing (Nov. 6, 2015) (ECF No. 481).
4

See, e.g., United States’ Response to Defendant’s Motion No. 19, Motion to Enforce the
Government’s Brady Obligations at 2 (Feb. 20, 2015) (ECF No. 133) (“Defendant’s belief
notwithstanding, all discoverable evidence, including all Brady material known to the United
States, has been provided to Defendant.”); United States’ Response to Defendant’s Motion to
Compel Production of Witness Interview Notes and Records of Attorney Proffers Containing
Brady Information at 1-2 (May 14, 2015) (ECF No. 251) (claiming that the government was
“aware of its ongoing Brady obligations” and “is in compliance with its discovery obligations”);
United States’ Combined Motion for Production of Reciprocal Discovery and Response to
Defendant’s Motion to Compel Compliance with Brady Order at 8 (July 14, 2015) (ECF No.
284) (“[S]ince the United States has complied with the Brady Order with respect to the substance
of those interviews, there is no reason to revisit that ruling.”)
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to defense counsel.” Mem. Op. & Order at 11 (June 12, 2015) (ECF No. 279). The prosecutors’
response flatly denied that any exculpatory evidence existed in the entire investigation:
As an initial matter, the United States notes that all the evidence of which it is
aware tends to support the conclusions that Defendant and others at Massey
Energy Company made a business decision to regularly commit illegal minesafety violations at the Upper Big Branch mine (“UBB”) and then caused
statements and omissions to be made that concealed that decision after the 2010
UBB explosion. In other words, the United States does not know of any evidence
that truly tends to exculpate Defendant. Defendant may propose that evidence is
exculpatory if it shows that there were occasions when he or others at Massey
complied with mine safety laws rather than violating them. That view would be
mistaken . . . Similarly, Defendant may propose that evidence that he or others at
Massey expressed general concern for safety tends to show that he did not
conspire to violate mine safety laws. That claim, too, would be erroneous.
(Emphases added)
Nonetheless, prosecutors proceeded to identify ten out of the more than 300 MOIs that had
actually been disclosed to the defense that “Defendant might claim tend to be exculpatory in
some way, even if such a claim would lack merit.”5
17.

After receiving the government’s response, Mr. Blankenship sought further relief

from this Court, citing a litany of deficiencies in the government’s representations. Motion to
Compel Compliance with Brady Order (July 8, 2015) (ECF No. 283) (ECF No. 283). For
example, in some instances, rather than turning over a complete MOI, the government provided
cursory statements that purported to summarize potentially exculpatory information provided by
a witness. Id. at 3. In its opposition to the Motion to Compel, the government assured the Court
that “the United States has complied with the Brady Order.” United States’ Combined Motion
for Production of Reciprocal Discovery and Response to Defendant’s Motion to Compel
Compliance with Brady Order (July 14, 2015) (ECF No. 284). In light of the government’s

5

This response is contained in Exhibit A of Mr. Blankenship’s Motion to Compel Compliance
with Brady Order (July 8, 2015) (ECF No. 283, Att. No. 1).
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representations, the Court denied further relief. Mem. Op. & Order (Aug. 10, 2015) (ECF No.
295).
18.

Given his concerns about the prosecution’s compliance with its discovery

obligations, Mr. Blankenship also sought evidence directly from MSHA. On September 9, 2015
this Court issued an order granting Mr. Blankenship’s request for a Rule 17(c) subpoena duces
tecum to be served on MSHA. (ECF No. 358). The subpoena was issued that same day and
sought three categories of documents including: “All documents regarding the UBB mine during
the Indictment Period located in the files of the MSHA inspectors and officials who were present
in the mine during the Indictment Period and their supervisors.” (ECF No. 359).
19.

On September 17, 2015, Mr. Blankenship filed a motion to compel compliance

with the Rule 17(c) subpoena, arguing that MSHA’s response could not possibly have been
complete. Motion to Compel MSHA to Comply with Subpoena Duces Tecum (Sept. 17, 2015)
(ECF No. 377). Prosecutors defended MSHA’s response and urged the Court to deny Mr.
Blankenship’s motion. Response to Motion to Compel MSHA to Comply with Subpoena Duces
Tecum (Sept. 24, 2015) (ECF No. 388). Mr. Blankenship renewed the motion on November 6,
2015. Motion to Compel Compliance with Subpoena, for Production of Brady, Rule 16, and
Jencks Material, and for Evidentiary Hearing (Nov. 6, 2015) (ECF No. 481). Once again, the
prosecutors insisted that MSHA had complied with the subpoena. United States’ Response to
Motion to Compel (Nov. 15, 2015) (ECF No. 496). This Court ultimately denied Mr.
Blankenship’s motion. Mem. Op. & Order (Dec. 9, 2015) (ECF No. 549).
20.

During trial, prosecutors continued to assert the government’s compliance during

argument before the court. For example, during cross-examination, Chris Blanchard testified
about a number of exculpatory topics that he claimed to have previously told the government.

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Defense counsel asked to see the MOIs from those interviews: “This witness was interviewed a
number of times by the Government and, according to the witness, told them that he did not, did
not believe that he was guilty of a crime, that he didn’t believe that he participated in a
conspiracy with Mr. Blankenship, and a number of other more specific exculpatory statements.
We were never provided with any of that, notwithstanding our aggressive [and] persistent
efforts.” (Trial Tr. Vol. XVII at 3710:23-3711:5). AUSA Ruby told the court point blank that
“We have [] turned over 302s from our interviews with this witness . . . to the extent that there is
exculpatory information that we had from this witness, that’s been turned over to the defense.”
(Id. at 3712:9-18). As of that time, the government had turned over a single 302 (also referred to
as a MOI) for Mr. Blanchard.
21.

On January 19, 2017, OPR notified the acting U.S. Attorney6 that MOIs

conducted during the investigation into Mr. Blankenship had not been disclosed to the defense.
In response, the U.S. Attorney’s Office (“USAO”) began a review of the file and, over the course
of the following weeks, provided Mr. Blankenship with sixty-one memoranda of interview that
had not been disclosed previously. In October 2017, the USAO provided details regarding an
undisclosed attorney proffer by Chris Adkins, Mr. Blanchard’s immediate supervisor. Then, in
November 2017, the USAO turned over several dozen emails from MSHA. Most recently, on
April 6, 2018, the USAO learned of still more undisclosed MSHA documents which it then
promptly turned over to Mr. Blankenship. All these undisclosed materials, along with the letters
of transmittal, are being submitted with this Motion.
GROUNDS FOR RELIEF

6

Carol Casto – who was not a member of the prosecution team in Mr. Blankenship’s case –
became the acting U.S. Attorney in January 2016 and served in that role until the appointment of
the current U.S. Attorney in January 2018.
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22.

Mr. Blankenship hereby incorporates by reference paragraphs 1 through 21 of this

motion.
23.

Prosecutors’ conduct deprived Mr. Blankenship of his constitutional right to a fair

trial. Each of the following grounds is individually sufficient to warrant the requested relief.
1.

Suppression of Material Exculpatory and/or Impeaching Evidence in Violation
of Brady v. Maryland and Giglio v. United States.
24.

Despite their repeated assertions to the court, prosecutors failed to turn over

material, exculpatory and/or impeachment evidence in violation of their obligations under Brady
v. Maryland, 373 U.S. 83 (1963) and Giglio v. United States, 405 U.S. 150 (1972). The
prosecutors’ failure to comply with their Brady and Giglio obligations violated Mr.
Blankenship’s constitutional right to a fair trial and warrants vacating his conviction and
sentence.
A. Memoranda of Interview
25.

The sixty-one MOI provided to Mr. Blankenship post-trial contain mountains of

exculpatory material. Among them were five MOI for each of the government’s two main
witnesses at trial. They failed to disclose twenty-three pages of reports from five separate
interviews with alleged co-conspirator Chris Blanchard. Similarly, five interviews comprising
twenty-eight pages of reports for Bill Ross – a former MSHA inspector hired by Mr.
Blankenship specifically to address safety concerns – also went undisclosed.
26.

These sixty-one MOI contain numerous examples of exculpatory and impeaching

evidence. The full list of Brady/Giglio material in the undisclosed MOI is enormous and cannot
be detailed in full within the confines of this Motion. A few key examples, however, are
highlighted below.
27.

The undisclosed MOIs from Mr. Blanchard include the following information:
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o Mr. Blanchard told investigators: “Blanchard advised that he never knowingly
gave a direct order where he told someone to do something that caused a law to be
broken.” (MOI-001457).
o The government argued at trial that Massey’s failure to increase staffing levels at
UBB proved Mr. Blankenship’s intent to violate mine safety regulations. See,
e.g., Trial Tr. Vol. XXVIII at 5842:24-5843:24. But as is reflected in the
undisclosed materials, Mr. Blanchard told investigations that there was “no
amount of money or resources that could take care of all violations at a mine.”
(MOI-001547).
o One of the most critical pieces of evidence for the prosecution was Mr.
Blankenship’s receipt of reports that showed the citations issued to UBB. (See,
e.g., Trial Tr. Vol. XXVIII at 5839:9-11, 5953:12-19). But in fact, Mr. Blanchard
told the prosecutors that “Blankenship . . . felt violations were going to be written
by MSHA. Blankenship felt MSHA made things up.” (MOI-001402).
28.

A review of the five undisclosed MOIs for Mr. Ross likewise includes obvious

exculpatory and impeaching statements:
o Like Mr. Blanchard, Bill Ross provided evidence that many of the citations at
UBB were outside Massey’s control. Mr. Ross told investigators in an
undisclosed MOI that “the UBB mine was set up to fail based on the ventilation
system MSHA forced the UBB mine to use.” (MOI-001532). This was a critical
part of Mr. Blankenship’s defense – that UBB received citations, at least in part,
because MSHA required them to use an ineffective ventilation system that caused
violations.
o Ross also told the government of several statements Blankenship made about
reducing violations. (MOI-001487; MOI-001476; MOI-001488).
o What is more, one of the alleged co-conspirators, Chris Adkins (Mr. Blanchard’s
immediate supervisor), told Ross that “they should comply with all regulations at
the mine site.” (MOI-001477)
29.

In addition, the government never turned over MOIs for many other witnesses

that included exculpatory information that would have benefited Mr. Blankenship’s defense. For
example, the government never turned over a MOI for Mark Clemens, who oversaw Massey’s
production, sales and budgeting. Among other exculpatory information in his MOI, Mr.
Clemens directly refuted one theory of prosecution when he told the government that “there was

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pressure at Massey to run coal, but not enough pressure to overlook safety.” (MOI-001506). In
addition, the information contained in undisclosed MOIs for Sabrina Duba, Charlie Bearse,
Stephanie Ojeda, Steve Sears, Lisa Williams, and Gary Frampton all contained additional
exculpatory and impeachment information that would have benefited Mr. Blankenship at trial.
B. MSHA Documents
30.

In November 2017 and April 2018, the USAO turned over dozens of exculpatory

and impeaching documents and emails from the Mine Safety and Health Administration
(“MSHA”). We cannot identify every such instance here, but provide the following as
particularly egregious examples.
31.

Several of the MSHA emails support Mr. Blankenship’s defense theory that many

citations did not reflect actual violations. For example, one email from a MSHA attorney
discusses several citations issued to UBB. In this email, the attorney observes that one citation
could not be sustained and must be vacated. She also points out that more information would be
needed from inspectors to sustain two other citations. (USAO0000114). In another email, a
MSHA employee points out a “potential violation” at UBB. He receives the following response:
“Sounds like a violation is in order. Let Norman know about it and I am sure he will be more
than happy to give them one more piece of paper.” (USAO0000028).
32.

Other emails demonstrate MSHA’s contempt for Mr. Blankenship and Massey

Energy. In response to a draft press release regarding complaints about Massey mines, MSHA
Mine Administrator Kevin Stricklin replied: “My only comment is to put a dagger into massey
[sic].” He was overruled by the head of MSHA, Joe Main, who responded that “This is about
presenting the facts to the public in a responsible way.” (USAO0000033). But Mr. Stricklin’s

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remark is tame in comparison with what another MSHA employee wrote: “I hope that him
[Blankenship] and Glenn Beck get raped by a rhinoceros. Horn end.” (USAO0000109).
33.

Even more astoundingly, the issue of advance notice – the illegal practice of

warning miners that inspectors had arrived – came up regularly at trial. It was a major focus of
the government’s case that Mr. Blankenship defrauded the United States, but was also used to
demonstrate his participation in a conspiracy to violate the mine safety regulations. In fact,
however, the undisclosed internal MSHA emails reveal that MSHA officials themselves were
conflicted as to whether Massey’s practices actually violated regulations regarding advance
notice. In one especially pointed email, a MSHA investigator explained: “The fact is most
[inspectors] did not really think that what was going on was advance notice. The lack of citations
says a lot.” (USAO0000030).
34.

Finally, the documents provided on April 6, 2018 show that multiple MSHA

supervisors were disciplined by the agency for inadequate supervision over UBB. In particular,
these documents criticize MSHA officials for failing to consider the interaction between the
mine’s dust and ventilation plans when they approved them. This evidence supports another of
Mr. Blankenship’s key defenses at trial – that MSHA required Massey to use a ventilation plan
that inherently created violations. These documents also reveal the disparity between the
government’s treatment of Mr. Blankenship (criminal prosecution) and that of the MSHA
officials responsible for the UBB mine’s safety (a slap on the wrist).
2.

Suppression of Evidence in Violation of the Jencks Act and Rule 26.2 of the
Federal Rules of Criminal Procedure.
35.

Many of the MOIs include statements by witnesses who testified at trial and

should therefore have been turned over to the defense. See Jencks Act, 18 U.S.C. § 3500; Fed.
R. Crim. P. 26.2(a). The sanctions for Jencks violations at trial include striking the witnesses’
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testimony and/or declaring a mistrial. Fed. R. Crim. P. 26.2(e). Because the excluded testimony
was critical to the government case, Mr. Blankenship’s conviction and sentence must be vacated.
36.

Roughly two-thirds of the undisclosed memos were authored by FBI Special

Agent James Lafferty, who testified at trial on a number of subjects, including subjects related to
those covered in the MOIs. These MOIs are unequivocally Jencks material that should have
been produced. See United States v. Hinton, 719 F.2d 711, 714 n.2, 716, 722 (4th Cir. 1983)
(formal MOIs are considered a government agent’s statement for Jencks Act purposes but
informal notes are not). Notably, Special Agent Lafferty authored all of the undisclosed Ross
MOIs and all but one of the Blanchard MOIs.
37.

Moreover, one of the undisclosed MOIs includes a diagram drawn by Mr. Ross to

explain how continuous miners operated in connection with certain ventilation systems. Mr.
Ross testified extensively on the subject matter of ventilation and mining operations. (See, e.g.,
Trial Tr. Vol. XIX at 3904:18-3905:25).
38.

If the testimony of Mr. Ross, Mr. Blanchard, and Special Agent Lafferty had

been stricken, there clearly would have been insufficient evidence to convict. In fact, striking the
testimony of any one of them would have seriously undermined the government’s case. This fact
alone warrants vacating Mr. Blankenship’s conviction and sentence.
3.

Violation of District Court Orders Regarding discovery.
39.

By failing to disclose these MOIs and MSHA documents, the government

violated two orders issued by the Court regarding discovery. These violations deprived Mr.
Blankenship of his constitutional right to a fair trial.

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A. District Court’s Brady Order
40.

As described in paragraph 15, this Court ordered the government to “specifically

designate any known Brady material as such and disclose the same to defense counsel.” The
prosecution’s response denied that any exculpatory evidence existed in the entire investigation.
None of the sixty-one interviews were included on that list, despite the fact that a number had
already occurred by that time. And, of course, those interviews conducted later on were never
disclosed at all.
41.

Moreover, prosecutors repeatedly told the Court and the defense that they had

complied with the Court’s order. For instance, Mr. Blanchard testified on cross-examination that
he had made several exculpatory statements during meetings with prosecutors. Having received
only a single MOI from an interview with Mr. Blanchard, the defense requested the MOI from
those other interviews. In response, AUSA Ruby asserted that “We have [] turned over 302s
from our interviews with this witness . . . to the extent that there is exculpatory information that
we had from this witness, that’s been turned over to the defense.” (Trial Tr. Vol. XVII at
3712:9-18). But, in fact, the government had not turned over 302s – plural – as AUSA Ruby
claimed. It had turned over only a single 302 and had withheld five others with Mr. Blanchard –
totaling twenty-three pages of notes. Included in one of those undisclosed MOIs was a statement
corroborating that Mr. Blanchard told the government he had committed no crime: “Blanchard
advised that he never knowingly gave a direct order where he told someone to do something that
caused a law to be broken.” (MOI-001457).
B. Rule 17(c) Subpoena
42.

On September 9, 2015, pursuant to this Court’s order granting Mr. Blankenship’s

request for a Rule 17(c) subpoena duces tecum to be served on MSHA (ECF No. 358), the

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subpoena was issued requesting: “All documents regarding the UBB mine during the Indictment
Period located in the files of the MSHA inspectors and officials who were present in the mine
during the Indictment Period and their supervisors.” (ECF No. 359).
43.

Mr. Blankenship – correctly as we now know – believed that MSHA’s responses

were inadequate. When he sought the Court’s assistance in compelling better responses,
prosecutors vigorously opposed those efforts. See supra para. 19.
44.

However, documents turned over to Mr. Blankenship in November 2017 include

emails that were responsive to the Rule 17(c) subpoena and should have been produced pursuant
to it.
45.

What is more, the defense discovered evidence that MSHA had destroyed

documents in the aftermath of the UBB explosion. It raised this issue with the court and
requested an evidentiary hearing. (ECF No. 481). In opposition to Mr. Blankenship’s motion,
prosecutors told this Court: “MSHA has complied with the subpoena, and the United States has
complied and continues to comply with its discovery obligations.” (ECF No. 496). As a result,
the court did not find Mr. Blankenship’s evidence of non-compliance to be sufficient: “Absent
additional testimony or evidence regarding alleged document destruction by MSHA or any
MSHA employee, and any additional link between such acts and this case, the Court sees no
legal basis or justification for granting the Defendant’s Motion.” (ECF No. 549).
46.

The undisclosed MSHA letters provide that additional evidence. In December

2011, a MSHA employee William Francart sent an email asking: “How many miners worked
their entire career at UBB? We had a shredding party here in Beckley and the charts you printed
for everyone were modified so that they can’t be read.” (USAO0000032). This email reinforces
the conclusion that MSHA intentionally destroyed its records related to UBB.

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C. Fraud on the Court
47.

In addition to its failure to turn over Brady material, prosecutors misrepresented

the government’s compliance with its Brady obligations and the court’s Brady order in both
court filings and oral arguments.
48.

For example, in its opposition to Mr. Blankenship’s pre-trial motion to Compel

Compliance with the Court’s Brady Order, prosecutors told the Court that “the United States has
complied with the Brady Order.” (ECF No. 284). Likewise, in its opposition to a similar motion
during trial, prosecutors told this Court: “MSHA has complied with the subpoena, and the United
States has complied and continues to comply with its discovery obligations.” Response to
Defendant’s Motion to Compel (Nov. 15, 2015) (ECF No. 496). Neither of these statements was
true.
49.

AUSA Ruby misrepresented the government’s compliance during argument

before the court. As described earlier, after Chris Blanchard testified about a number of
exculpatory topics that he told the government, Mr. Taylor asked to see the MOIs from those
interviews. AUSA Ruby told the Court that “We have [] turned over 302s from our interviews
with this witness . . . to the extent that there is exculpatory information that we had from this
witness, that’s been turned over to the defense.” (Trial Tr. Vol. XVII at 3712). This was simply
not true.
4.

Prosecutorial Misconduct
50.

In order to establish a claim under Brady, it is not necessary to show that the

prosecutors intentionally suppressed evidence. See Brady, 373 U.S. at 87 (the “good faith or bad
faith of the prosecution” is irrelevant if the suppressed evidence “is material either to guilt or to
punishment”). Nonetheless, the quantity and quality of the suppressed exculpatory and other

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information here leads to the unfortunate conclusion that the misconduct was intentional. The
prosecutorial misconduct was of such magnitude as to deny Mr. Blankenship due process and a
fair trial, and it therefore violated his Fifth Amendment rights and warrants vacating his
conviction and sentence.
51.

Defense counsel frequently raised the issue of nondisclosure with both

prosecutors and the court, asking for specific documents or statements. On behalf of the
prosecution team, AUSA Ruby repeatedly countered that they had complied with their
obligations even though they so obviously had not. AUSA Ruby in particular, must have known
that these representations were not true. He had personally participated in the vast majority of
the undisclosed interviews including all five Blanchard interviews, along with three of those
involving Bill Ross.
52.

Moreover, prosecutors denied that any exculpatory evidence even existed. In

response to the Court’s Brady Order, AUSA Ruby denied that any exculpatory evidence existed
in the entire investigation. Yet, it is clear from his response that AUSA Ruby understood the
precise nature of the information that Mr. Blankenship considered exculpatory. Instead of
providing that information, he simply argued that the evidence did not actually exculpate Mr.
Blankenship.
53.

The Blanchard incident is the most telling display of the willfulness of the

misconduct. After defense counsel requested notes from Mr. Blanchard’s MOIs, stunningly,
AUSA Ruby did not offer to review the file or ask the Court for time to confirm. Instead, he
boldly told the Court that all exculpatory information from the witness had been turned over.
(See Trial Tr. Vol. XVII at 3712:9-18). And yet, twenty-three pages of notes from five
interviews that AUSA Ruby personally attended had never been disclosed.

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54.

Despite the efforts of the new U.S. Attorney to remedy these discovery violations,

Mr. Blankenship has reason to believe that additional exculpatory material remains undisclosed.
Specifically, handwritten notes of interviews by investigating agents have never been disclosed.
In a pre-trial motion, defense counsel requested the handwritten notes of interviews. The Court
ordered that the substance of those notes be produced, a requirement the government claimed
had been satisfied by the typewritten memos. Nonetheless, it is probable that witnesses made
exculpatory statements to the government that are not reflected in the typed MOIs that were
produced.7 Based on the pattern of violations here, it seems likely that material evidence may be
contained in the handwritten notes that is not reflected in the typed MOIs.
55.

Additionally, before trial, the defense requested certain information regarding

communications between the government and immunized witnesses. Specifically, they requested
information on whether immunized “witnesses or their counsel profess innocence or otherwise
make factual representations or proffers inconsistent with their or Mr. Blankenship’s guilt.” No
response to that request has ever been provided.
56.

Finally, even with the most recent batch of MSHA emails provided by the

government, there is no indication that the routine day-to-day communications among MSHA
inspectors have ever been produced, despite defense counsel’s repeated requests.
CONCLUSION
WHEREFORE, Donald L. Blankenship moves this Court to vacate and set aside his
sentence and judgment of conviction as having been imposed in violation of the Constitution and
the laws of the United States, and for such other relief as is necessary and appropriate. Mr.

7

For example, Mr. Blanchard testified that he (or his attorney) informed the government that he
had not engaged in a conspiracy with Mr. Blankenship. (Trial Tr. Vol. XVI at 3309:17-3310:4).
No such statement appears in any of the disclosed MOIs.
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Blankenship also moves the Court to hold an evidentiary hearing to consider the full facts, and to
determine whether additional information exists that should have been provided to Mr.
Blankenship pre-trial.

Dated: April 17, 2018

Respectfully submitted,
/s/ Howard C. Vick
Howard C. Vick
Michael A. Baudinet
MCGUIREWOODS LLP
Gateway Plaza
800 E. Canal Street
Richmond, VA 23219-3916
Tel: (804) 775-1000
Fax: (804) 775-1061
tvick@mcguirewoods.com
mbaudinet@mcguirewoods.com
Benjamin L. Hatch
MGUIREWOODS LLP
World Trade Center
101 West Main Street
Suite 9000
Norfolk, VA 23510-1655
Tel: (757) 640-3700
Fax: (757) 640-3701
bhatch@mcguirewoods.com
/s/ W. Henry Jernigan, Jr.
W. Henry Jernigan, Jr. (WVSB No. 1884)
DINSMORE & SHOHL LLP
707 Virginia Street, East, Suite 1300
P.O. Box 11887
Charleston, West Virginia 25339-1887
Telephone: (304) 357-0900
Facsimile: (304) 357-0919
henry.jernigan@dinsmore.com
Counsel for Donald L. Blankenship

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UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
Beckley Division

UNITED STATES OF AMERICA
Plaintiff,
v.

DONALD L. BLANKENSHIP
Defendant.

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Criminal No. 5:14-CR-00244

CERTIFICATE OF SERVICE
I, W. Henry Jernigan, do hereby certify that a foregoing Motion to Vacate and Set
Aside Defendant’s Conviction and Sentence Pursuant to 28 U.S.C. § 2255 was served
through the Court’s electronic filing system on this the 17th day of April, 2018 upon the
following counsel of record:
Michael B. Stuart, Esquire
U.S. Attorney for the Southern District of West Virginia
Robert C. Byrd U.S. Courthouse
300 Virginia Street, East, Suite 4000
Charleston, WV 25301

/s/ W. Henry Jernigan, Jr.
W. Henry Jernigan, Jr. (WVSB No. 1884)

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