Case 5:14-cr Document 473 Filed 11/02/15 Page 1 of 5 PageID #: 8589

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1 Case 5:14-cr Document 473 Filed 11/02/15 Page 1 of 5 PageID #: 8589 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA BECKLEY DIVISION UNITED STATES OF AMERICA v. Criminal No. 5:14-cr DONALD L. BLANKENSHIP DEFENDANT S OPPOSITION TO THE UNITED STATES MOTION TO EXCLUDE VIDEO OF HAZARD ELIMINATION PROGRAM MEETING Defendant Donald L. Blankenship respectfully opposes the motion of the United States to exclude portions of the video recording of the meeting at Scott High School on August 1, The grounds for excluding the excerpts are similar to those which the government urged to exclude the larger tape of the four-and-a-half hour meeting. The government argued that the tape of the meeting was inadmissible because it contained hearsay and was puffery, among other reasons. As an initial matter, the excerpts are directives (i.e., directions to the mine management at Upper Big Branch and Massey s other mines to eliminate hazards and to cease production to do so and, therefore, do not constitute hearsay, as they are not assertions offered for the truth of the matter asserted. Additionally, the hearsay rule no more precludes the video than it does testimony of what people did and said at the meeting. The fact of the meeting and the things said there are material to Mr. Blankenship s defense. Evidence which shows intent, motive, or state of mind, as all of it does, is not hearsay. This evidence not only is admissible in its own right, but the government has opened the door to it. After the video s exclusion, during its re-direct of Mr. Blanchard, the government repeatedly showed Mr. Blanchard citations issued close in time to the meeting and asked him

2 Case 5:14-cr Document 473 Filed 11/02/15 Page 2 of 5 PageID #: 8590 whether anything was done in response. See, e.g., Oct. 29, 2009 Trial Tr. at (discussing July 21, 2009 citation and suggesting that nothing was done in response; Oct. 30, 2009 Trial Tr. at (asking Mr. Blanchard whether he received a note from Mr. Adkins about a July 29, 2009 citation. Of course, the government knows that the video demonstrates that something was done in response, that Mr. Blanchard and all the other Presidents in the company were told by Mr. Adkins and other high level executives in-person, during a four-hour meeting, that such citations were unacceptable; that a program was being put in place to reduce them; that, contrary to much of the government s questioning in relation to the citations, slowing down production to address hazards was permissible, expected, and accepted; and so forth. The tape is admissible to show these actions and to contradict the government s assertion that Mr. Blankenship and his alleged co-conspirators did nothing in the face of the citations being received at Upper Big Branch and Massey s other mines. In such circumstances, where the government is purportedly offering citations to show notice, state of mind, and intent, the response to the citations specifically, in this instance, the Hazard Elimination Program Kick-Off Meeting is not offered for the truth of the matter asserted in statements made during the meeting, but rather to demonstrate that they occurred, as well as to show intent, motive, and state of mind. Along the same lines, the government has introduced a memo documenting a meeting between Bill Ross, Stephanie Ojeda, and Stan Suboleski that occurred as part of the company s effort to reduce violations. Gov t Ex. 97. The cover to that memo states: Bill asked that the following message be included in sharing his memo with you [Mr. Blankenship] and Chris [Adkins]: Mr. Blankenship and Mr. Adkins must announce to all members our serious approach to establish and reflect our commitment of compliance to the health and safety regulations. Demanding a higher standard be set at all mines and requiring all personnel to be 2

3 Case 5:14-cr Document 473 Filed 11/02/15 Page 3 of 5 PageID #: 8591 responsible. policy. Establish compliance accountability programs and Id. The video shows that the company followed that recommendation with Mr. Adkins leading a four-hour meeting that conveyed exactly that message. It cannot be that the government can offer evidence of out-of-court statements, such as the Ross memo, for purportedly non-hearsay purposes, and the defense cannot offer into evidence the response for the same purposes and to show that events occurred and what they looked like. The argument that the meeting is puffery or that it was staged, while neither of which is true, go only to the weight, not the admissibility of the video. Indeed, while the government has repeatedly attempted to characterize the Hazard Elimination Program Kick-Off Meeting as a sham argument that by its very nature opens the door to allowing the jury to actually see what occurred at the meeting the jury must be allowed to see the evidence that contradicts that assertion and to weigh the evidence itself to decide whether the puffery and opinions actually represent the true intent, motive, and state of mind behind the Hazard Elimination Program efforts. We respectfully submit that the Court erred in excluding the larger version of the film and, without waiving that objection, we seek admission of the excerpts which the government opposes. 3

4 Case 5:14-cr Document 473 Filed 11/02/15 Page 4 of 5 PageID #: 8592 For the reasons set forth above, the defense requests that the United States Motion be denied and that the Court grant its request to admit excerpts from the August 1, 2009 Hazard Elimination Program Kick-Off Meeting. Dated: November 2, 2015 Respectfully submitted, /s/ William W. Taylor, III William W. Taylor, III Blair G. Brown Eric R. Delinsky R. Miles Clark Steven N. Herman ZUCKERMAN SPAEDER LLP 1800 M Street, NW, Suite 1000 Washington, DC (phone / (fax wtaylor@zuckerman.com bbrown@zuckerman.com edelinsky@zuckerman.com mclark@zuckerman.com sherman@zuckerman.com s/ James A Walls James A. Walls (WVSB #5175 SPILMAN THOMAS & BATTLE, PLLC 48 Donley Street, Suite 800 Morgantown, WV (phone / (fax jwalls@spilmanlaw.com /s/ Alexander Macia Alexander Macia (WVSB #6077 SPILMAN THOMAS & BATTLE, PLLC 300 Kanawha Boulevard, East Charleston, WV (phone / (fax amacia@spilmanlaw.com Counsel for Donald L. Blankenship 4

5 Case 5:14-cr Document 473 Filed 11/02/15 Page 5 of 5 PageID #: 8593 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 2nd day of November, 2015 on: R. Booth Goodwin, II Steven R. Ruby Gabriele Wohl U.S. Attorney s Office P.O. Box 1713 Charleston, WV R. Gregory McVey U.S. Attorney s Office P.O. Box 1239 Huntington, WV /s/ Steven N. Herman Steven N. Herman