Petition for Writ of Certiorari — Michael Blankenship, Petitioner v. United States

NUMBER

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 2019

MICHAEL BLANKENSHIP, Petitioner,

Vv.

UNITED STATES OF AMERICA, Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JONATHAN D. BYRNE

ASSISTANT FEDERAL PUBLIC DEFENDER

Office of the Federal Public Defender, Southern District of West Virginia

Room 3400, Robert C. Byrd Federal Courthouse

300 Virginia Street, East

Charleston, West Virginia 25301

Telephone: 304/347-3350

Counsel for Petitioner

WESLEY P. PAGE

FEDERAL PUBLIC DEFENDER

LORENA E. LITTEN

ASSISTANT FEDERAL PUBLIC DEFENDER

I. QUESTIONS PRESENTED FOR REVIEW

1. Whether in a prosecution for illegally dumping waste into a creek,

where a major part of the Government’s case was based on eyewitness testimony

about the smell of the creek when the defendant was allegedly dumping, a chart

showing a consistently high level of fecal coliform in the creek was relevant to show

there were other potential sources of the odors to which witnesses testified.

2. Whether allowing the Government to present testimony from multiple

witnesses about the defendant’s admissions to dumping on days outside the dates

charged in the indictment violated Rule 404(b) of the Rules of Evidence.

II. TABLE OF CONTENTS

I. QUESTIONS PRESENTED FOR REVIEW............:ccccccccsscceeseesseeesseeeesnaeeeesees 1

IT. TABLE OF CONTENTS... ec eecccessecsseceseecesseecssaeeecneessseeessseeesssesesseeeesssesensaes 2

IIT. TABLE OF AUTHORITIES 2.00... cccccccccesecssneeeeseeeseeesseeeesseeessseesessesesseeeenes 5

IV. LIST OF ALL DIRECTLY RELATED PROCEEDINGS ...0. oc eeeeeeeeeeeeessteeees 7

V. OPINIONS BELOW uo... ee cecsecccesceseceseeceseeseeessneeesecsseeseecnseeseeceseesseeeesesenseeens 7

VI. JURISDICTION ooo. eee eeccecenecesseeeenseeesneeeeseeeeseeecsaceeeseeesessecsssesesssecesseeeeeaseees 7

VII. STATUTES AND REGULATIONS INVOLVED ......... icc ccccccessscesseeeesseeeesseees 8

VIII. STATEMENT OF THE CASE ou... eeeecccccsecesseeesseecesseeeseecesseeessseeeseesenseeeseatess 8

A Federal Jurisdiction 00.0... ccccecsscceseceseccsseecesseesseeeceseseseseeeesseseessecesseeeees 8

B Facts Pertinent to the Issue Presented..............c:cccccssssccesesseceeeesteeessnaeeees 9

| 1. Blankenship is charged with multiple counts of

dumping sewage into Little Huff Creek. ........0..ceccceecccseseeeeeees 9

The district court allows the Government to

present evidence of dumping outside the

instances charged in the indictment, while

ruling that Blankenship cannot inform the

jury about the condition of Little Huff Creek... .....cc eee 10

Blankenship goes to trial on the eleven-count indictment......... 13

a. Evidence about the September 29, 2015, incident........... 13

b. Evidence about the other alleged dumping incidents...... 17

C. Remaining testimony ............cccccccccccccccccsceccccceeeeeseecessseneees 19

Blankenship is convicted on two counts and

acquitted on the other mine................:ccccsssesssccccssssssscceeeeceessnceeees 21

5. The Fourth Circuit affirms Blankenship’s convictions

ANA SENLENCE. 0.0... eeeeeceeesseeesseeeessncceeeeeseeeseessseseesssaseceessseeeeessauseeess QD

IX. REASON FOR GRANTING THE PETITION |... .cccccceccccsesscccceesseeeeessseess 23

I. The writ should be granted to determine whether in a

prosecution for illegally dumping waste into a creek,

where a major part of the Government’s case was based

on eyewitness testimony about the smell of the creek

when the defendant was allegedly dumping, a chart

showing a consistently high level of fecal coliform

in the creek was relevant to show there were other

potential sources of the odors to which witnesses testified.............0..... 23

A. The water quality chart was relevant to show the

source of the sewage smell of Little Huff Creek could

have come from sources other than Blankenship...............00...... 23

II. The writ should be granted to determine whether allowing the

Government to present testimony from multiple witnesses

about the defendant’s admissions to dumping on days outside

the dates charged in the indictment violated Rule 404(b) of

the Rules of Evidence...........ccccccccssssecceeseeesssceeeeceesessseseceeccessesseeeeeenseeeeas 27

A. The district court was incorrect that the Government

could properly present evidence of alleged discharges

beyond those charged in the indictment. ...............:ccccccccccseeeeeees 27

B. Testimony about undated discharges was neither

intrinsic to the charged offenses ‘nor did it complete

the Government’s story of the charged offenses .................ccseeeee 28

C. The testimony about undated discharges did not prove

Blankenship’s intent with regard to the charged Clean

Water Act violations. ..............ccccsssesseeeesseeesseecsrseeeeses a eeeesseeeesessness 31

D. The testimony about other uncharged discharges

WAS UNLE liable. ...... eee ccessscssceeseesssnecceeceeesessneeeeececeeseessscscsaaas 32

E. Testimony about undated discharges was unfairly

prejudicial even if it was probative ............cccccceeessseessesssscsseeceeeees 33

X. CONCLUSION ......eeccccccescccsssssccessneeceenseeceseseeceeseececcesssescusscseesesssssesessessaaas 34

APPENDIX A:

APPENDIX B:

APPENDIX C:

APPENDIX D:

Opinion of the United States Court of

Appeals for the Fourth Circuit

United States v. Blankenship, __ F. App’x __,

2019 WL 4805766 (4th Cir. 2019) 0... eee eeeesecceeeseeeeeeeeeeeeeessnees A-1

Memorandum Opinion and Order, April 18, 2018.............. ee B-1

Memorandum Opinion and Order, April 10, 2018................0..000 C-1

Judgment in a Criminal Case, January 17, 2019... eee D-1

II, TABLE OF AUTHORITIES

Cases

Old Chief v. United States, 519 U.S. 172 (1997) ......ccccccccesesesessscssseessnssssssseceeeecs wee d4

United States v. Basham, 561 F.3d 302 (4th Cir. 2009) ........ cece eee 08, 29, 31

United States v. Blankenship, ___ F. App’x ___, 2019 WL 4805766

(Ath Cir, 2019)... eececccecssneceseseeeessaececcssaeeceessneesessneeesnaeeessseeeessnseeeessenseesesseeees 7, 22

United States v. Chin, 83 F.3d 83 (4th Cir. 1996)... cece ccccccccccccscecececcceceecessnesenes 29

United States v. Cooper, 482 F.3d 658 (4th Cir. 2007)... ccceccccccescseeeeeeeenees 29, 32

United States v. Grimmond, 137 F.3d 823 (4th Cir. 1998)... eceeeeeeeeeeseeeeeee 34

United States v. Johnson, 617 F.3d 286 (4th Cir. 2010) oc. cccceceeeseceseseeees 27

United States v. Kennedy, 32 F.3d 876 (4th Cir. 1994)... ccccccsseccsssssceseeenee 29-30

United States v. Law, 979 F.2d 977 (4th Cir. 1992) 0... ccceeesssseeesseeesesssssecceees 31

United States v. Masters, 622 F.2d 83 (4th Cir. 1980)... eeccccceeseeeseeeeees 29, 30, 33

United States v. McBride, 676 F.3d 385 (4th Cir. 2012)... ececcccesseeeetteceeteeeees 27-28

United States v. Oxford Royal Mushroom Products, 487 F. Supp. 852

(E.D. Pa. 1980)... eccecccceessnnceeeeeenneneeceeeeeesneeceeesseesaeeescessesseeeeeeeesenensssaeeeeeeeceseeueeeseees 30

United States v. Powers, 59 F.8d 1460 (4th Cir. 1995) oo... cccceeessscssceeeesesssececees 24

United States v. Queen, 132 F.3d 991 (4th Cir. 1997)... cecscccessssessseesesssseseseeees 32

United States v. Siegel, 536 F.3d 306 (4th Cir. 2008) ........ cc ccceeesesseeseseeeeesens 27, 31

Young v. Catoe, 205 F.3d 750 (4th Cir. 2000)... ceececcessssesssssesssssseeesnsrsceseesccens 26

Statutes

18 U.S.C. § 828] oes seeseesneesseesseeenteenennees soseesueesneessueessneessessuessutesueesaeessnesssneessnecs 9

18 U.S.C. § 8742 oe ceeccccessccssecesseceseeseceeeeseasessaeceseeesseeeseneeessesecsesaceseessscessaeecseesenseens 9

28 U.S.C. § 1254 oo ceccceseeeseesnceseessnecsseceenecnsecseenseesnsecseecsseeenseesseeesseeeesseeeseeesesense 7

28 U.S.C. § 12970 oo eecceseccsneceeseeeseecseecesseecesseessseesseecssaeceeseecsesseeessseceesseeeesseenseeeneas 9

33 U.S.C. § 1811 (8) eee ceeceseeseeesecenceeseeesseeeeseessecescesscecnsecesecsseeceseeessecssseceeueessscenseesas 9

33 U.S.C. § 1319(C)(2)(A) oe eeccccencecsncecseecsseeeceeseeseaeeseeeceseeceeseeeeesseesssseeeessesesseeeseeeeeas 9

Rules

Fed. R. Evid. 401 oo. eeeccccsscccssceceseeeeseeeeneecesseeeenseeesseeesseeeesseeeesseesesseeessseeeessseeeesrens 8, 24

Fed. R. Evid. 403 .eccccsssssscsssssssssesssssssssssssssssssseesessssssussssssssssssssessnuistisissssessanenssseeeeee 28

Fed. R. Evid. 404 oo... eeeesscedaccesseessseeesseeessneeeesseeesaes sacceeeeeaeeeeesseaeeeeeecneeeeeeeetteteesseeees 8

Fed. R. Evid. 404(D) 0... ccc ccccssssscesssscsesesscccccsscessssessssssssssausuaaeeessseecccceeeaeanens Passim

Fed. R. Evid. 608 ooo... ceieescccesseessseceeseeseeeccseeeeeeseessseessseeecsaeeeeseessssecessseeceesseeesseeesaees 19

Fed. R. Evid. 901 (a) .........ccceeeesessssscscceccccesesssesssssssscsescsesessessccseseseseseeseseeeeseseeessececsneeecees 12

Sup. Ct. R. LOC)... cccssssssssssssssssscsesscseseececccceccessecccsssssessssssssssesceseccceseeeeeeeesea 23, 27

Sup. Ct. R. 1B.Licccccccccscseccsecssessucssesssecsucssuessvcsucsssssuessusssesssessssssscsuessessusssessessesavecsesssseavece 7

Sup. Ct. BR. 18.8 cccccssssccecessssseeecesssssaeeeeecesesseeeeeeesessaaeeseceessseseaeeuesceseessessssssesesees 7

IV. LIST OF ALL DIRECTLY RELATED PROCEEDINGS

° United States v. Blankenship, No. 5:17-cr-00200-1, U.S. District Court

for the Southern District of West Virginia. Judgment entered January

17, 2019.

e United States v. Blankenship, No. 19-4072, U.S. Court of Appeals for

the Fourth Circuit. Judgment entered on October 1, 2019.

V. OPINIONS BELOW

The opinion of the United States Court of Appeals for the Fourth Circuit in

United States v. Blankenship, ___ F. App’x ___, 2019 WL 4805766 (4th Cir. 2019), is

an unpublished opinion and is attached to this Petition as Appendix A. The basis of

the first issue presented in this Petition was ruled upon by the district court in a

written order prior to trial and 1s attached to this Petition as Appendix B. The basis

of the second issue presented in this Petition was also ruled upon by the district

court in a written order prior to trial and is attached to this Petition as Appendix C.

The final judgment order of the district court is unreported and is attached to this

Petition as Appendix D.

VI. JURISDICTION

This Petition seeks review of a judgment of the United States Court of

Appeals for the Fourth Circuit entered on October 1, 2019. This Petition is filed

within ninety days of the date the court’s judgment. No petition for rehearing was

filed. Jurisdiction is conferred upon this Court by 28 U.S.C. § 1254 and Rules 13.1

and 13.38 of this Court.

VII. STATUTES AND REGULATIONS INVOLVED

The first issue in this Petition requires interpretation and application of Rule

401 of the Rules of Evidence, which provides:

Evidence is relevant if:

(a) it has any tendency to make a fact more or less probable

than it would be without the evidence; and

(b) the fact is of consequence in determining the action.

The second issue in this Petition requires interpretation and application of

Rule 404 of the Rules of Evidence, which provides, in pertinent part:

(b) Crimes, Wrongs, or Other Acts.

(1) Prohibited Uses. Evidence of a crime, wrong, or

other act is not admissible to prove a_ person's

character in order to show that on a particular

occasion the person acted in accordance with the

character.

(2) Permitted Uses; Notice in a Criminal Case. This

evidence may be admissible for another purpose, such

as proving motive, opportunity, intent, preparation,

plan, knowledge, identity, absence of mistake, or lack

of accident.

VIII. STATEMENT OF THE CASE

A. Federal Jurisdiction

This Petition arises from the final judgment and sentence imposed upon

Michael Blankenship following his conviction on two counts of an eleven-count

indictment for illegally dumping waste into a creek. On November 16, 2017, an

indictment was filed in the Southern District of West Virginia charging

Blankenship with eleven counts of discharging pollutants into a water of the United

States, in violation of 33 U.S.C. §§ 1811(a) and 1819(c)(2)(A). J.A. 10-12. Because

that charge constitutes an offense against the United States, the district court had

original jurisdiction pursuant to 18 U.S.C. § 3231. This is an appeal from the final

judgment and sentence imposed after Blankenship was convicted by a jury of

Counts Four and Nine of the indictment. J.A. 554-555. A judgment order was

entered on January 17, 2019. J.A. 556-562. Blankenship timely filed a notice of

appeal on January 30, 2019. J.A. 563. The United States Court of Appeals for the

Fourth Circuit had jurisdiction to review this matter pursuant to 18 U.S.C. § 3742

and 28 U.S.C. § 1291.

B. Facts Pertinent to the Issue Presented

This case involves a stream in rural West Virginia called Little Huff Creek,

which flows into the Guyandotte River. Blankenship was accused of dumping waste

collected from portable toilets into the creek over a period of several months in 2015

and 2016. J.A. 10-12. He was eventually convicted of doing so on two particular

days and sentenced to fifteen months in prison. J.A. 554-555.

1. Blankenship is charged with multiple counts

of dumping sewage into Little Huff Creek.

Blankenship ran a business, Hanover Contracting Company, “which engaged

in the business of cleaning portable toilets, hauling domestic sewage, and disposing

of the sewage.” J.A. 570. As part of the business he owned two trucks that he used

for hauling sewage. Blankenship’s home and business were located on Little Huff

Creek in Wyoming County, West Virginia. Id.

On September 29, 2015, investigators with the West Virginia Department of

Environmental Protection “(WVDEP”) received an anonymous tip that there was a

truck at Blankenship’s property that was discharging waste into Little Huff Creek.

Agents went to the scene to investigate and eventually spoke to Blankenship’s

neighbors, Denver Lester (“Lester”) and his wife, Virginia (“Virginia”), who alleged

that Blankenship had been dumping in the creek on a regular basis. J.A. 571-572.

As a result of that investigation, Blankenship was charged with eleven

counts of violating the Clean Water Act by dumping sewage into Little Huff Creek.

J.A. 10-12. Count Nine alleged dumping on September 29, 2015, when the WVDEP

was called. The other counts alleged dumping on specific dates between February 6,

2015, and May 9, 2016. J.A. 12.

2. The district court allows the Government to

present evidence of dumping outside the

instances charged in the indictment, while

ruling that Blankenship cannot inform the

jury about the condition of Little Huff Creek.

Prior to trial, Blankenship filed motions seeking to prevent the Government

from presenting evidence of other alleged incidents of dumping. J.A. 13-14. As

relevant to this appeal, Blankenship argued that the Government had disclosed its

intention to present several witnesses at trial who allegedly saw Blankenship

dumping into Little Huff Creek on dates other than those charged in the

indictment. J.A. 15-26. Blankenship argued that the statements of three of his

neighbors — Lester, Virginia, and Bill Lester (“Bill”) -were untimely disclosed and

that their testimony was not intrinsic to the offenses charged and should be

-10-

excluded as evidence of other bad acts under Rule 404(b) of the Federal Rules of

Evidence. J.A. 18-25. The Government countered that the testimony of the Lesters

was intrinsic to the charges against Blankenship, arguing that the “story of

[Blankenship’s repeated] discharges provides context to the eleven charges to be

presented to the jury.” J.A. 45. In the alternative, the Government argued that the

testimony was admissible under Rule 404(b) because it was relevant to the issue of

intent, was reliable, and was not more prejudicial than probative. J.A. 46-51.

The district court denied Blankenship’s motion in a written order prior to

trial. J.A. 66-71. The district court concluded that “the evidence and testimony of

Mr. and Mrs. Lester does not constitute evidence of prior bad acts such that it is

subject to exclusion or analysis under Rule 404(b).” J.A. 69. That was because it was

“inextricably intertwined with the Clean Water Act violations that the United

States must prove at trial” and was “sufficiently connected to the criminal activity

charged in the indictment such that they tell the story of the crime.” Jd. In the

alternative, the district court held that the testimony would be admissible under

Rule 404(b) because it was relevant to “issues other than [Blankenship’s] character,

such as his intent to discharge the pollutants without a permit, and whether he did

so in absence of mistake or accident.” J.A. 70. Any danger of undue prejudice could

be addressed by a limiting instruction to the jury. Jd.

The Government also filed a motion in limine seeking the exclusion of

evidence at trial. J.A. 54-65. Specifically, the Government argued that the district

court should exclude a “chart purportedly representing data on fecal levels at

-1l1-

different areas of Little Huff Creek” that was “created using data that is publicly

available on the WVDEP website.” J.A. 56, 64-65. Such evidence was “not relevant

because it has no probative value” because the Government did not have to prove

that Blankenship damaged the creek in order to secure a conviction. J.A. 56. The

Government argued that the “only reason to introduce evidence that there may be

other sources of fecal coliform in the stream ... is to claim that [Blankenship] is not

the only one guilty of polluting the stream or that the stream is so polluted that

[Blankenship’s] illegal discharges should be excused.” J.A. 58.

In response, Blankenship argued that the chart was relevant without any

relation to whether his alleged dumping damaged the creek. Blankenship argued

that the chart was admissible because it was authentic under Rule 901(a) of the

Federal Rules of Evidence and was relevant. J.A. 76-78.! The chart was relevant

because it was expected that Blankenship’s neighbors would testify that “they

smelled sewage odors and believed that Mr. Blankenship is the source,” but the

chart showed that “sewage was present in Little Huff Creek .. . from sources other

than Mr. Blankenship.” J.A. 79-80. That was “of consequence because the sewage

odor is the basis the neighbor witnesses have for alleging Mr. Blankenship was

discharging.” J.A. 80. The evidence was not going to be “used as an ‘everyone else

does it defense.” J.A. 81.

1Blankenship also argued that the Government’s objection was untimely because its

motion was filed after the deadline set by the district court for pretrial motions and

the chart had been disclosed in a timely fashion. J.A. 73-76.

-12-

The district court granted the Government’s motion in a written order prior

to trial. J.A. 94-97. The district court concluded that “the water quality chart

[Blankenship] seeks to introduce is not relevant.” J.A. 96. “The quality of the

stream,” the district court explained, “is not relevant to the elements of the charged

offense.” Id. In addition, “appropriate cross-examination of the testimony of the

neighbor witnesses, with respect to the odor of the stream, can fully address this

issue.” Jd. In the alternative, the district court held that the chart should be

excluded because any probative value would be “substantially outweighed by the

potential for confusing the jury regarding the actual elements of the charged

offense.” Id.

3. Blankenship goes to trial on the eleven-count

indictment.

Blankenship’s trial began on April 16, 2018. The Government’s case consisted

of numerous witnesses that can generally be broken down into three groups — those

who testified about the September 29 incident that led to the investigation, those

who testified about other alleged dumping incidents, and those witnesses who

provided other relevant testimony to the jury. After hearing the evidence, the jury

acquitted Blankenship on nine counts and convicted him on Counts Four and Nine

of the indictment. J.A. 554-555.

a. Evidence about the September 29, 2015,

incident

The Government produced testimony from two WVDEP employees who

responded to the anonymous complaint about Blankenship made on September 29,

-18-

2017 — Michael Puckett (“Puckett”) and Lily Kay (“Kay”). J.A. 125-162, 172-197.

Puckett testified that Kay received a complaint by email that involved “a septage

hauler being discharged into the creek” and they decided to investigate. J.A. 126.

When they arrived at Blankenship’s property Puckett “saw a septage hauler truck

parked on a concrete pad adjacent to Little Huff Creek with an attached hose

leading from the back of the truck down the slope into Little Huff Creek.” J.A. 127.

Puckett testified that he could see “septage spilled all over the concrete pad” and

“over the bank” and that there “was septage spilled all over the bank.” J.A. 130. He

also saw “a dark pool at the end of the nozzle” that he believed to be septage based

“on observation, smell, overall characteristics of septage that I’ve encountered over

my career.” Id. Kay testified that she saw “a hose attached to the sewage valve on

the back of the truck with the hose leading into Little Huff Creek” and that there

was “sewage sludge directly underneath the sewage valve on the truck” as well as

“all over the concrete pad.” J.A. 174-175. In addition, there was “the very distinct

odor of sewage” and the “creek was discolored.” J.A. 175. Puckett and Kay took

pictures then left the scene in order to make a phone call for backup out of

“prudence” and based “on the magnitude of what we observed.” J.A. 130-1381.

When they returned to the scene with two West Virginia State Police

officers,? the truck had “been disconnected from the end of the hose” and the truck

had been “moved to the opposite side” of the street, away from the creek. J.A. 138.

Although Puckett could “no longer see that [the truck] had been discharging sewage

2One of those officers testified about returning to the scene with Puckett and Kay

and similar observations of the truck, creek, and general area. J.A. 163-171.

-14-

... there was still some sewage on the rear-end of the truck, the rear bumper.” J.A.

1388-139. However, the hose that had been connected to the truck had not been

moved and was in “the same place” as when Puckett and Kay had left. J.A. 145.

As part of their investigation, Puckett and Kay took samples from various

locations. One was taken from the valve on the truck which, when opened, produced

a “trickle” of septage. J.A. 149. They also collected a sample from the concrete pad

where the truck was originally parked. J.A. 151. Kay put those samples on ice and

transported them to a company called Analabs for testing. J.A. 179, 184. Both

samples tested positive for the presence of fecal coliform bacteria which is “in the

feces of all humans.” J.A. 183-174. Puckett testified that testing the samples was

not necessary to prove fecal material was involved because he could make that

determination “based on personal experience.” J.A. 157. Lab tests would only

“confirm” his observations. Jd. Kay suggested the same thing, calling test results “a

good backup.” J.A. 188.

Puckett testified that they did not take samples from Little Huff Creek itself

because the “steepness of the bank was such that we decided there were safety

issues involved.” J.A. 152. They lacked the proper equipment because they had not

“start[ed}] the day anticipating that we were going to encounter a situation like

that.” J.A. 156. Kay confirmed that no samples were taken from the creek for

“safety reasons.” J.A. 180. In addition, she admitted that she “did not confirm that

the valve was discharging or taking in water.” J.A. 194.

83The Government also presented testimony from the Analabs employees who

received the samples and tested them. J.A. 198-218.

-15-

The Government also produced testimony from two federal agents who

followed up on the initial investigation of Puckett and Kay. J.A. 220-236, 253-279.

FBI agent Hugh Mallet (“Mallet”) and EPA agent Nicholas Gillespie (“Gillespie”)

testified that they went to speak with Blankenship on multiple occasions. J.A 221-

222, 255. On one occasion Blankenship was present and “agreed to speak with us

about .. . incidents with the dumping of sewage into Little Huff Creek.” J.A. 223.

Blankenship explained that his business involved servicing about two dozen

portable toilets for a local mining company. J.A. 224. When asked about the incident

where the WVDEP investigators came to his property, Blankenship “admitted to

dumping the sewage from his truck into the creek,” although he could not recall the

specific date. J.A. 225. According to Gillespie, he said “[yJes, I did it.” J.A. 266.

Blankenship explained that he did so because he had a “metal container . . . about

five miles up the road” but that it “wasn’t set up to retrieve the sewage and that’s

why he dumped it into the creek.” J.A. 225-226.

Mallet and Gillespie also testified about talking with Blankenship about

other incidents of dumping, over Blankenship’s objection and with a limiting

instruction for the jury. J.A. 226-229, 231. Mallet testified that when asked about

other instances Blankenship “said he did it one or two other times... . but he wasn’t

able to provide” dates. J.A. 229. Gillespie also testified that Blankenship admitted

to dumping into the creek “on one or two other occasions.” J.A. 267.

-16-

b. Evidence about the other alleged dumping

incidents

The Government presented testimony from three related neighbors of

Blankenship as evidence regarding dumping incidents outside of the September 29

incident.

Lester had lived all of his sixty-seven years on Little Huff Creek next door to

Blankenship, downstream from his property. J.A. 298, 300, 302, 336. For thirtyseven of those years, Lester’s wife Virginia lived there as well. J.A. 349-350. In

addition to being Blankenship’s neighbor, Lester was also related to him. J.A. 336.

Lester testified that between February 6, 2015, and May 9, 2015, he saw

Blankenship repeatedly dump sewage into the creek from one of his septage trucks.

He did this by walking through a series of photographs he took purporting to show

such dumping. Each had a date stamp and Lester testified that he saw dumping

and smelled sewage. One of those dates was “4-14” — April 14, 2015 — which

corresponded with Count Four of the indictment. J.A. 12, 317. Virginia testified

about some of the incidents, as well as about how she developed the pictures that

were introduced at trial. J.A. 350-355.

As for how Lester knew what he saw being dumped into the creek, Lester

relied on two factors. One was his sense of smell, repeatedly explaining that his

“nose don’t he.” J.A. 310, 320, 323. He denied any knowledge of other neighbors

further upstream who “straight-pipe[d] their sewage into” the creek. J.A. 341. The

other factor was because he saw the water in the creek turn “black.” J.A. 309, 310,

317, 318, 327. However, on cross-examination, Lester admitted that the water in

-17-

some photographs was the same color upstream from Blankenship’s property as it

was downstream. J.A.345. Virginia also testified that the creek “was black and it

stunk really bad.” J.A. 350.

But Lester was more than Blankenship’s neighbor and relative. At the time

of trial, he was, as the Government solicited during direct examination, embroiled

in a long-running property dispute with Blankenship that was still tied up in court.

J.A. 335. Blankenship further explored that issue during cross examination. J.A.

335-340. Lester admitted that, were he to succeed in court, he would gain some of

Blankenship’s property including, ironically, the concrete pad where Puckett and

Kay first saw the truck when they investigated. J.A. 340. Lester also admitted that

while he purported to see Blankenship engage in dumping when he took

photographs, he did not manage to get a picture with Blankenship in it. J.A. 342.

The other neighbor witness was Lester’s brother, Bill, who lived across the

street from Lester. J.A. 359, 368. Bill testified that he, too, observed Blankenship

dumping into the creek in 2015 and 2016, but could not provide specific dates as to

when it occurred. J.A. 360, 368, 369. Blankenship objected to his testimony under

Rule 404(b), but the district court overruled the objection, holding that the lack of

dates made it impossible to determine if the testimony was intrinsic to the charged

crimes, but that it was admissible under Rule 404(b) “going towards the element of

the offense that he knowingly dumped.” J.A. 361. Bill testified that he did not know

what was being dumped, but that “in a few minutes you could smell it” and that it

-18-

“didn’t smell nice.” J.A. 364-365. As with Lester, he denied having any knowledge of

other neighbors who dumped household waste into the creek. J.A. 370.

The Government’s next witness was Ronald Connors (“Connors”). J.A. 373-

376. The Government called him a “character witness” at a sidebar prior to his

testimony who was called “under Rule 608 [to] vouch for the truthfulness of Denver

Lester.” J.A. 371. Blankenship objected, arguing that Lester’s “reputation wasn’t

attacked” and that “a motive to fabricate is different than showing that his

character is one of... . lying or being untruthful.” Jd. The district court overruled the

objection, holding that “the witness’s credibility has, in fact, been attacked” because

some cross-examination questions went “to not only the motive in terms of the

complaint which goes to his credibility but also questions like, you know, Mr.

Blankenship doesn’t appear in any of these photographs when he testified he saw

him on each of those occasions.” Jd.

Connors testified that he lived in Wyoming County all his life and had known

Denver for more than fifty years. J.A. 374-375. He testified that “Lester’s reputation

for truthfulness” is that he was “honest as the day is long.” J.A. 375. He reiterated,

“T know he’s truthful.” Id.

c. Remaining testimony

In addition to those witnesses, the Government presented several others as

part of its case. Two witnesses from local facilities that dealt with waste testified

about their dealings with Blankenship. Michael Preston, of the water treatment

plant for the town of Gilbert, testified that he discussed the business with

-19-

Blankenship and told him that he could not dump portable toilet waste at the plant

and that the nearest facility that could handle that waste was in Beckley. J.A. 240.

Ray Perdue, of the Beckley Sanitary Board, testified that Blankenship did not dump

waste in Beckley in 2015 or until “towards the end of the year” in 2016. J.A. 250-

251. The Government also presented evidence from Mark Bolling of the WVDEP,

who testified that Blankenship had never had any permit to discharge waste into

Little Huff Creek. J.A. 390-391. William Cox, of the Wyoming County Health

Department, testified that Blankenship did not have a permit issued for his trucks

that he used to haul septage until September 2016. J.A. 384.

Finally, John Wirts (“Wirts”) of the WVDEP testified about the perennial

nature of Little Huff Creek and that it was a tributary of the Guyandotte River. J.A.

268-267. Wirts also testified that in 2015 and 2016 he and his team “did an

extensive monitoring of the upper Guyandotte watershed in 2015 and ’16,” making

assessments at “four locations along the main stem of Little Huff Creek” up to

nearly eleven miles from where it entered the Guyandotte. J.A. 285-286.

Blankenship sought to recall Wirts to testify about the results of those assessments,

which formed the basis for the water data chart that the district court excluded by

granting the Government’s motion in limine, because “the bulk of the Government’s

case, that is, the bulk of.the counts in the indictment are corroborated by smell.”

J.A. 411. The district court denied that request. J.A. 412.

- 20 -

4, Blankenship is convicted on two counts and

acquitted on the other nine.

After the close of evidence, Blankenship requested that the jury be instructed

“on the lesser included offense of negligent discharge, specifically for Count Nine,”

which arose from the September 29 incident. J.A. 421.4 Blankenship argued that

the element of “knowledge” in the offense as charged was “sufficiently in dispute”

because while there was testimony about sewage being found in various locations,

“testimony showed that no one had tested the pipe itself.” J.A. 422. Because Kay

testified that she could not say whether the hose was sucking in water or

discharging sewage “the jury could fairly infer that the discharge on that specific

date was due to an accidental spillage.” Jd. As to the witnesses who testified about

Blankenship’s statements about that incident, “[n]o one specifically testified that

Mr. Blankenship said that he intentionally or knowingly dumped into Little Huff

Creek.” J.A. 428.

The district court rejected Blankenship’s request, holding that “I do not

believe that there is a fair inference or a reasonable inference to be made from the

evidence that’s been presented here that a jury could find it to be negligence.” J.A.

424-425. While recognizing that the Lester eyewitnesses did not testify about that

date, the district court found that “the admissions and the testimony about the

questions that were being asked of him and what his responses were” showed any

discharge was intentional. J.A. 425. The district court concluded that “I think that

4The proposed instruction was tendered to the district court as Defense Exhibit 4.

J.A. 425-426, 493.

-21-

the jury has to find either he didn’t do it or they could find that it was intentional

and maybe not find some other element,” however, “I don’t believe there’s any

evidence to support my giving an instruction that it could have been negligent.” Id.

The jury found Blankenship guilty on two counts of the indictment — Counts

Four and Nine — and found him not guilty on the other nine counts. J.A. 483-484.

5. The Fourth Circuit affirms Blankenship’s

convictions and sentence.

Blankenship appealed his convictions to the Fourth Circuit Court of Appeals,

which affirmed them in an unpublished opinion. United States v. Blankenship, __

F. Appx __, 2019 WL 4805766 (4th Cir. 2019). As relevant to this Petition,

Blankenship raised two issues. First, he argued that the district court erred by not

allowing him to introduce the water quality chart into evidence. The court rejected

that argument, holding that it was not relevant because the chart showed results

taken at “different time from 2000 to 2016,” none of which matched the dates of the

acts charged against Blankenship, and therefore it was "not probative of the odors

the witnesses detected.” Jd. at *2. Second, he argued that the district court erred by

allowing the Government to present evidence of other instances of dumping. The

court rejected that argument as well, concluding that if the evidence was not

intrinsic to the acts charged it was nonetheless properly admitted under Rule

404(b). Id. at *3.

22.

IX. REASONS FOR GRANTING THE WRIT

I. The writ should be granted to determine whether in a

prosecution for illegally dumping waste into a creek,

where a major part of the Government’s case was based

on eyewitness testimony about the smell of the creek

when the defendant was allegedly dumping, a chart

showing a consistently high level of fecal coliform in the

creek was relevant to show there were other potential

sources of the odors to which witnesses testified.

Most of the evidence of Blankenship’s dumping activities consisted of

neighbors who explained that they could smell the odor of sewage. Statistics

compiled by the Government’s own expert witness showed that Little Huff Creek

was full of fecal coliform and could have been the source of such odors. The chart

showing that contamination was relevant to the issue of whether Blankenship,

based on the odor associated with his actions, was dumping waste. The

admissibility of such evidence is an important question of federal law that has not

been, but should be, settled by this Court. Rules of the Supreme Court 10(c).

A. The water quality chart was relevant to show the

source of the sewage smell of Little Huff Creek

could have come from _ sources other’ than

Blankenship.

The Government’s case against Blankenship was largely built on its

witnesses’ sense of smell — they testified that they smelled sewage. The district

court abused its discretion by prohibiting Blankenship from presenting the water

quality chart to the jury which showed there were other sources of that sewage

smell. It was relevant to show Blankenship was not necessarily the cause of the

odors in question.

93 -

At trial, several witnesses testified that they smelled sewage odors and

believed that Blankenship was the source. Most notably, Lester testified repeatedly

that he knew Blankenship was dumping sewage because his “nose don’t lie.” J.A.

310, 320, 323. Lester was the Government’s primary witness for all but Count Nine

of the indictment. He took photos of what he testified were days on which

Blankenship allegedly discharged sewage into Little Huff Creek. Blankenship does

not appear in any of these photos. What brings these photos alive and gives them

relevance are the testimony of Lester and others about what they smelled. In

addition to Lester, Virginia testified that the creek “stunk really bad.” J.A. 350. Bill

also testified that Blankenship was dumping sewage because “you could smell it”

and it “didn’t smell nice.” J.A. 364-365. Puckett and Kay both testified that they

concluded sewage was involved based on smell, each going so far as to say that lab

testing of collected material was merely to “confirm” their nasal impressions, “a

good backup.” J.A. 180, 157, 175, 188.

Rule 401 of the Federal Rules of Evidence states that evidence is relevant

when “it has any tendency to make a fact more or less probable than it would be

without the evidence” and “the fact is of consequence in determining the action.

Courts have recognized that “the threshold for relevancy is relatively low.” United

States v. Powers, 59 F.3d 1460, 1465 (4th Cir. 1995). The water quality chart cleared

that low threshold.

The water quality chart was relevant because it showed that sewage was

present in Little Huff Creek in 2015 and 2016 from sources other than Blankenship.

-24-—

The chart, made an exhibit to the Government’s motion in limine, shows the fecal

coliform levels in the creek at multiple points upstream from where it empties into

the Guyandotte river. J.A. 64-65. According to Wirts, through whom Blankenship

would have admitted this evidence at trial, only the sampling point 0.1 mile from

the river was downstream from Blankenship’s property — the other three were

further upstream. J.A. 86. The chart, prepared by Wirts and WVDEP, shows that

fecal coliform levels at the points further upstream are as high — sometimes much

higher — as the one downstream from Blankenship’s property. J.A. 64-65. Evidence

of such pollution was relevant because the sewage odor was the basis the neighbor

witnesses have for alleging Blankenship was discharging. That is particularly true

because the data reflected in the chart is from roughly the same time as the

incidents charged in the indictment to which Lester and Virginia testified. Without

the smell there would not be sufficient evidence that Blankenship was violating the

Clean Water Act.

While the district court was correct that the issue of the water quality of

Little Huff Creek was “not relevant to the elements of the offense,” J.A. 96, that was

not the end of the inquiry. The water quality chart was relevant to another issue —

whether there was a source besides Blankenship for the sewage smell reported by

many witnesses. The district court was incorrect that cross-examination of the

witnesses who smelled sewage “can fully address the issue,” id., because the

witnesses were obviously convinced that Blankenship was the source of the sewage

smell. Lester and Bill were, at best, oblivious to the fact that other neighbors

- 25 -

dumped their own waste directly into the creek. J.A. 341, 370. Without the hard

evidence from the WVDEP of the condition of | the creek to balance out their

testimony, cross-examination was hardly sufficient.

The district court also concluded, in the alternative, that even if relevant the

water quality chart would be more likely to cause confusion with the jury than be

probative. J.A. 291. There was no reason for the jury to be confused. The district

court instructed the jury on the elements of a Clean Water Act violation, elements

that would have been the same had the water quality chart been admitted. J.A. 440-

445. Jurors are presumed to abide by the instructions given. Young v. Catoe, 205

F.3d 750, 764 (4th Cir. 2000). There is no reason to think the jury would have read

into the instructions given by the district court a sub silentio defense that

Blankenship did not actually harm the creek or the fact that he was far from the

only person dumping waste into the creek. Furthermore, the issue for which the

chart would have been admitted — that there were other sources to make Little Huff

Creek smell like sewage — was clearly delineated and within the common sense of

jurors to analyze.

The evidence that Little Huff Creek was polluted by far more persons than

Blankenship, in the proof of the WVDEP’s own data, was relevant to a fact of

consequence to this case — whether the witnesses who testified that they smelled

Blankenship dumping sewage were credible. That evidence was probative and

would not have confused the jury. Therefore, the Fourth Circuit erred that the

- 26 -

district court did not abuse its discretion by preventing Blankenship from admitting

it.

Il. . The writ should be granted to determine whether

allowing the Government to present testimony from

multiple witnesses about the defendant’s admissions to

dumping on days outside the dates charged in the

indictment violated Rule 404(b) of the Rules of Evidence.

Blankenship was charged with illegally dumping into Little Huff Creek on

eleven occasions. In addition to testimony about those dates, the district court

allowed the Government to produce testimony about other acts of dumping.

Whether such evidence is admissible under Rule 404(b) is an important question of

federal law that has not been, but should be, settled by this Court. Rules of the

Supreme Court 10(c).

A. The district court was _ incorrect that the

Government could properly present evidence of

alleged discharges beyond those charged in the

indictment.

Federal Rule of Evidence 404(b) provides the authority for excluding evidence

which would serve to improperly taint the defendant’s character where the

Government cannot establish all of the requirements for admitting evidence of other

bad acts allegedly committed by the defendant. United States v. McBride, 676 F.3d

385, 395 (4th Cir. 2012); United States v. Johnson, 617 F.3d 286, 296 (4th Cir.

2010); United States v. Siegel, 536 F.3d 306, 314 (4th Cir. 2008). Rule 404(b)

prohibits the introduction of evidence of other bad acts to show bad character or the

propensity to break the law. Siegel, 536 F.3d at 317. In order to be considered to be

admissible under Rule 404(b), evidence must be (1) relevant to an issue other than

-27-

character; (2) necessary in the sense that it is probative of an essential claim or

element of the offense; (8) and reliable. United States v. Basham, 561 F.3d 302, 326

(4th Cir. 2009). In addition, any such evidence must be more probative than it

would be unfairly prejudicial under Rule 403. McBride, 676 F.3d at 396.

The district court concluded that the testimony about alleged discharges that

occurred at times other than those charged in the indictment “does not constitute

evidence of prior bad acts such that it is subject to exclusion or analysis under Rule

A04A(b).” J.A. 69. Contrary to the district court’s conclusion, that evidence was not

“inextricably intertwined with the Clean Water Act violations that the United

States much prove at trial,” nor was it “sufficiently connected to the criminal

activity charged in the indictment such that they tell the story of the crime.” Jd. The

district court was also incorrect by holding, in the alternative, that the testimony

was admissible under Rule 404(b) because it was relevant to “issues other than

[Blankenship’s] character, such as his intent to discharge the pollutants without a

permit, and whether he did so in absence of mistake or accident.” J.A. 70. As a

result of those incorrect conclusions of law, the district court abused its discretion

by allowing the Government to present evidence of other, uncharged, incidences of

dumping during Blankenship’s trial.

B. Testimony about undated discharges was neither

intrinsic to the charged offenses nor did it complete

the Government’s story of the charged offenses.

Evidence of uncharged conduct is not considered ‘other crimes’ evidence if it

‘arose out of the same ... series of transactions of the charged offense ... or if it is

- 28 -

necessary to complete the story of the crime (on) trial.” United States v. Kennedy, 32

F.3d 876, 885 (4th Cir. 1994); see also United States v. Masters, 622 F.2d 83, 87 (4th

Cir. 1980). In other words, if it is “intrinsic” to the crime charged and “is necessary

to ‘provide context relevant to the criminal charges.” Basham, 561 F.3d at 326,

quoting United States v. Cooper, 482 F.3d 658, 663 (4th Cir. 2007); see also United

States v. Chin, 83 F.3d 83, 88 (4th Cir. 1996)(“[o]ther criminal acts are intrinsic

when they are inextricably intertwined or both acts are part of a single criminal

episode or the other acts were necessary preliminaries to the crime

charged”)(internal quotation mark omitted).

The defendant in Kennedy was charged with a drug conspiracy and objected

to testimony by a police officer about his investigation of the defendant prior to the

dates alleged in the indictment. Kennedy, 32 F.8d at 885. The district court

admitted the evidence because it provided context to the drug distribution scheme.

Id. at 885-886. The court determined that the evidence of the defendant’s uncharged

conduct was admissible because it “served to complete the story of the crime on

trial” by providing background information and that the defendant erroneously

assumed that “all evidence falling outside of the charged conspiracy period

necessarily involves a separate, unrelated offense.” Jd. at 885.

In Masters, the defendant was charged with dealing in firearms or

ammunition without a valid license. Masters, 622 F.2d at 83. Evidence of conduct

outside the dates alleged in the indictment was admitted by the trial court over the

defendant’s objection. Jd. at 84-85. The court affirmed the admission of that

29.

[OCR skipped on page(s) 31-36]

[Read from a scan; the first 30 pages.]