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

Supreme Court briefDec 30, 2019

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NUMBER

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 2019

MICHAEL BLANKENSHIP, Petitioner,

UNITED STATES OF AMERICA, Respondent.

APPENDIX A

TO 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

United States v. Blankenship, --- Fed.Appx. ---- (2019)

2019 WL 4805766

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This case was not selected for

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See Fed. Rule of Appellate Procedure 32.1

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also U.S.Ct. of Appeals 4th Cir. Rule 32.1.

United States Court of Appeals, Fourth Circuit.

UNITED STATES of America, Plaintiff - Appellee,

Michael BLANKENSHIP, Defendant - Appellant.

No. 19-4072

Submitted: September 25, 2019

Decided: October 1, 2019

Synopsis

Background: Defendant was convicted in the United States

District Court for the Southern District of West Virginia, Irene

C. Berger, J., of violating the Clean Water Act. Defendant

appealed.

Holdings: The Court of Appeals held that:

[1] district court's error in finding that defense counsel

attacked government witness's reputation for character and

thus opened door to bolstering of such character did not

substantially sway judgment, and thus was harmless;

[2] district court did not abuse discretion in refusing to admit

chart into evidence;

[3] witnesses’ testimony regarding instances in which

defendant allegedly dumped waste matter into creek was

admissible as probative of defendant's knowledge and intent;

and

[4] evidence was sufficient to establish that defendant

knowingly dumped waste matter into creek, and thus jury

instruction on lesser-included offense of negligent dumping

was not warranted.

Affirmed.

West Headnotes (5)

[1]

[2]

[3]

Criminal Law

aid

Defense counsel, by establishing government

witness's bias during cross-examination of

witness that was limited to facts of case, did not

attack witness's reputation for truthfulness, and

thus district court erred in finding that such attack

occurred and opened door for character witness

to bolster witness's character in prosecution for

violation of Clean Water Act.

Criminal Law

District court's error in finding that defense

counsel, by establishing bias of government

witness, attacked witness's

truthfulness and thus opened door for character

witness to bolster witness's character did not

reputation for

substantially sway its judgment, and thus error

was harmless in prosecution for violation of

Clean Water Act; bolstering witness's testimony

lasted approximately five minutes and occupied

only four pages of transcript. Fed. R. Evid.

608 (a).

Criminal Law

District court did not abuse its discretion in

refusing to admit into evidence chart offered

by defendant, which purportedly demonstrated

alternative sources of pollution in creek into

which defendant allegedly dumped untreated

waste matter, in prosecution for violation of

Clean Water Act; although defendant argued

that chart could explain source of foul odors

described by witnesses, chart listed bacteria

testing results at different times over 16-

year period at various places along creek, but

no testing date or location matched any of

defendant's alleged acts of dumping, and thus

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United States v. Blankenship, --- Fed.Appx. ---- (2019)

2019 WL 4805766

chart was not probative of detected odors, and

given that quality of stream had no bearing

on whether defendant dumped waste matter

into it, chart was not relevant. Federal Water

Pollution Control Act §§ 301, 309, 33 U.S.C.A,

§§ 1311(a), 1319(c)(2)(A); Fed. R. Evid. 401,

402, 403.

[4] Criminal Law

Witnesses' testimony regarding instances in

which defendant allegedly dumped waste matter

into creek was admissible as probative of

defendant's knowledge and intent to dump such

waste, and thus district court did not err in

admitting such testimony in prosecution for

violation of Clean Water Act, even though

instances were undated. Federal Water Pollution

Control Act §§ 301, 309, 33 US.C.A. §§

1311(a), 1319{c)(2)(A); Fed. R. Evid. 404(b).

[5] Criminal Law

Evidence was sufficient to establish that

defendant knowingly dumped waste matter into

creek, as necessary to establish violation of Clean

Water Act, and thus jury instruction on lesserincluded offense of negligent dumping was not

warranted; state Department of Environmental

Protection inspectors testified that defendant's

truck was discharging waste matter into creek on

day in question, neighbors' testimony established

that defendant had history of dumping waste

matter, and defendant twice admitted to

investigators that he had dumped waste matter

on date charged. Federal Water Pollution Control

Act §§ 301, 309, 33 U.S.C.A. §§ 1311(a),

1319(c)(2)(A).

Appeal from the United States District Court for the Southern

District of West Virginia, at Beckley. Irene C. Berger, District

Judge. (5:17-cr-00200-1)

Attorneys and Law Firms

Brian J. Kornbrath, Acting Federal Public Defender,

Jonathan D. Byrne, Lorena E. Litten, Assistant Federal

Public Defenders, OFFICE OF THE FEDERAL PUBLIC

DEFENDER, Charleston, West Virginia, for Appellant.

Michael B. Stuart, United States Attorney, Erik S. Goes,

Assistant United States Attorney, Perry D. McDaniel,

Special Assistant United States Attorney, OFFICE OF THE

UNITED STATES ATTORNEY, Charleston, West Virginia,

for Appellee.

Before WILKINSON, MOTZ, and RICHARDSON, Circuit

Judges.

Opinion

Affirmed by unpublished per curiam opinion.

Unpublished opinions are not binding precedent in this

circuit.

PER CURIAM:

*J] A jury convicted Michael Blankenship of two counts

of violating the Clean Water Act for knowingly discharging

untreated sewage and portable toilet waste into Little Huff

Creek near Hanover, West Virginia, in violation of 33

U.S.C. §§ 1311(a), 1319(c)(2)(A) (2012). The district court

sentenced him to 15 months in prison and ordered him to pay

a $10,000 fine. Blankenship timely appealed and challenges

four of the district court’s rulings. We affirm.

First, Blankenship argues that the district court erred in

its determination that his counsel had attacked Government

witness Denver Lester’s reputation for truthfulness and

opened the door for a character witness to bolster Lester’s

character. We review evidentiary rulings for abuse of

discretion. United States v. Caro, 597 F.3d 608, 633 (4th Cir.

2010). Evidentiary rulings are also subject to harmless error

analysis. United States v. Johnson, 617 F.3d 286, 292 (4th

Cir. 2010). An error is harmless when we can “say with fair

assurance, after pondering all that happened without stripping

the erroneous action from the whole, that the judgment was

not substantially swayed by the error.” /d. (internal quotation

marks omitted).

A witness’s credibility may be

attacked or supported by testimony

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United States v. Blankenship, --- Fed.Appx. ---- (2019)

2019 WL 4805766

about the witness’s reputation for

having a character for truthfulness

or untruthfulness, or by testimony in

the form of an opinion about that

character. But evidence of truthful

character is admissible only after the

witness’s character for truthfulness has

been attacked.

Fed. R. Evid. 608(a). “Opinion or reputation that the witness

is untruthful specifically qualifies as an attack under the rule,

and evidence of misconduct ... and of corruption also fall

within this category. Evidence of bias or interest does not.”

Fed. R. Evid. 608(a) advisory committee’s notes to 1972

proposed rules.

No firm line can be drawn regarding

whether cross-examination of a

witness amounts to an attack on the

witness’s character for truthfulness.

But a useful test employed by the

courts is whether the questioning

attacks the veracity of the witness’s

account of the facts in the specific

case before the court or attacks the

witness’s veracity in general.

United States v. Martinez, 923 F.3d 806, 816 (10th Cir.

2019); see also United States v. Dring, 930 F.2d 687, 691

(9th Cir. 1991) (“Rule [608(a) ] prohibits rehabilitation by

character evidence of truthfulness after direct attacks on a

witness’s veracity in the instant case. However, the Rule

permits rehabilitation after indirect attacks on a witness’s

general character for truthfulness.”),

(1] [2] We conclude that the district court erred in

finding that Blankenship’s counsel attacked Lester’s general

character for truthfulness. Blankenship’s cross-examination

was limited to the specifics of the case and established

Lester’s bias. This error, however, is harmless. The error

permitted the Government to call a character witness to

bolster Lester’s character for truthfulness, but this testimony

lasted approximately five minutes and occupies just four

pages of transcript. In these circumstances, we can “say

with fair assurance, after pondering all that happened

without stripping the erroneous action from the whole, that

the judgment was not substantially swayed by the error.”

Johnson, 617 F.3d at 292 (internal quotation marks omitted).

*2 Second, Blankenship contends that the district court

abused its discretion in excluding a chart demonstrating that

there were other sources of fecal coliform pollution in Little

Huff Creek other than Blankenship’s alleged acts of dumping.

Blankenship argues that the chart could explain the source

of the foul odors described by the witnesses as emanating

from the creek. The district court found that the chart was not

relevant and that, even if it was, its admission could confuse

the jury.

“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.”

Fed. R. Evid. 401. Relevant evidence is generally admissible,

Fed. R. Evid. 402, but the district court may “exclude relevant

evidence if its probative value is substantially outweighed by

a danger of one or more of the following: unfair prejudice,

confusing the issues, misleading the jury, undue delay,

wasting time, or needlessly presenting cumulative evidence.”

Fed. R. Evid. 403. “The threshold for determining whether

evidence is relevant is comparatively low, and we rarely

reverse such decisions because they are fundamentally a

matter of trial management.” United States v. Recio, 884 F.3d

230, 235 (4th Cir. 2018) (internal quotation marks omitted).

We review a decision to exclude relevant evidence for the

reasons listed in Rule 403 for abuse of discretion. Huskey v.

Ethicon, Inc., 848 F.3d 151, 159-60 (4th Cir. 2017). “Improper

exclusion of evidence warrants a new trial only if it results in

a high probability that the error affected the judgment.” Id. at

160 (alterations and internal quotation marks omitted).

[3] The chart lists fecal coliform bacteria testing results at

different times from 2000 to 2016 at various places along

Little Huff Creek. No testing date or location matches one

of Blankenship’s alleged acts of dumping. Accordingly, the

chart is not probative of the odors the witnesses detected.

Furthermore, the chart is not relevant. The quality of the

stream has no bearing on whether Blankenship dumped

sewage into it and the district court properly found that

admission of the chart may confuse the jury. The district court

did not abuse its discretion in refusing to admit the chart.

Third, Blankenship asserts that the district court abused

its discretion in permitting witnesses to testify to undated

instances of dumping. The district court admitted the evidence

as intrinsic of the charged dates. Alternatively, the district

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United States v. Blankenship, --- Fed.Appx. ---- (2019)

2019 WL 4805766

court determined that the evidence was admissible, pursuant

to Fed. R. Evid. 404(b), as probative of Blankenship’s

knowledge and intent.

Evidence that “serve[s] to complete the story of the crime on

trial do[es] not qualify as evidence of other crimes subject

to scrutiny under Rule 404(b).” United States v. McBride,

676 F.3d 385, 396 (4th Cir. 2012) (internal quotation marks

omitted). “Evidence is intrinsic if it is necessary to provide

context relevant to the criminal charges.” United States v.

Basham, 561 F.3d 302, 326 (4th Cir. 2009) (internal quotation

marks omitted).

Alternatively, evidence of undated acts of dumping may

be admissible pursuant to Rule 404(b). “To be admissible

under Rule 404(b), the evidence must be (1) relevant to

an issue other than the general character of the defendant,

(2) necessary to prove an essential claim or element of the

charged offense, and (3) reliable.” United States v. Sterling,

860 F.3d 233, 246 (4th Cir. 2017). Furthermore, the evidence

must satisfy Rule 403—that is, “the evidence’s probative

value [must] not be substantially outweighed by its unfair

prejudice to the defendant.” /d. at 247.

*3 [4] Assuming without deciding that the evidence was

not intrinsic to the charged crimes, we conclude that the

district court did not abuse its discretion in admitting

the evidence pursuant to Rule 404(b). To prove the

charged offenses, the Government was required to establish

that Blankenship dumped sewage knowingly. Accordingly,

evidence that Blankenship had dumped sewage on other

occasions was probative of his knowledge and intent to dump

sewage and that it was not an accident. Furthermore, the

district court did not abuse its discretion in determining that

the evidence was reliable and not unduly prejudicial.

Finally, Blankenship contends that the district court abused its

discretion in refusing to give a jury instruction on the lesserincluded offense of negligent dumping as to one count. He

argues that the evidence supported the instruction because the

element of his knowledge of the dumping was in dispute. We

review a decision not to give a jury instruction for abuse of

discretion. United States v. Hill, 927 F.3d 188, 209 (4th Cir.

2019).

A refusal to grant a requested

instruction is only reversible error if

the instruction (1) was correct; (2)

was not substantially covered by the

court’s charge to the jury; and (3)

dealt with some point in the trial

so important, that failure to give

the requested instruction seriously

impaired the defendant’s ability to

conduct his defense.

id. (internal quotation marks omitted). “Even if these factors

are met, however, failure to give the defendant’s requested

instruction is not reversible error unless the defendant can

show that the record as a whole demonstrates prejudice.”

United States v.. Hager, 721 F.3d 167, 184 (4th Cir. 2013).

[5] Negligent dumping is a lesser-included offense of

knowingly dumping. 33 U.S.C. § 1319(c)(1)(A) (West 2016

& Supp. 2019). Blankenship’s argument, however, has no

merit. West Virginia Department of Environmental Protection

inspectors testified that Blankenship’s truck was discharging

sewage into the creek on the day in question, and neighbors’

testimony established that Blankenship had a pattern of

dumping sewage into the creek. Furthermore, Blankenship

twice admitted to investigators that he dumped sewage into

the creek on the date charged. Blankenship’s argument that

he admitted to dumping sewage but not doing so knowingly

makes little logical sense, and we conclude that the district

court did not abuse its discretion in refusing to give the

negligent dumping instruction.

Accordingly, we affirm Blankenship’s convictions and

sentence. We dispense with oral argument because the

facts and legal contentions are adequately presented in the

materials before this court and argument would not aid the

decisional process.

AFFIRMED

All Citations

--- Fed.Appx. ----, 2019 WL 4805766

End of Document

A-4 4

NUMBER

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 2019

MICHAEL BLANKENSHIP, Petitioner,

Vv.

UNITED STATES OF AMERICA, Respondent.

APPENDIX B

TO 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

Case 5:17-cr-00200 Document 56 Filed 04/13/18 Page 1 of 4 PagelD #: 479

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

BECKLEY DIVISION

UNITED STATES OF AMERICA,

Plaintiff,

v. CRIMINAL ACTION NO. 5:17-cr-00200

MICHAEL BLANKENSHIP,

Defendant.

MEMORANDUM OPINION AND ORDER

The Court has reviewed the United States Motion in Limine to Exclude Water Quality Data

and Evidence Concerning Lack of Harm (Document 48), the Defendant’s Response to United

States Motion in Limine to Exclude Water Quality Data and Evidence Concerning Lack of Harm

(Document 54), and the attached exhibit in question. For the reasons stated herein, the Court finds

that the United States’ motion should be granted. |

The Defendant, Michael Blankenship, was indicted on November 16, 2017, for eleven

counts of discharging untreated sewage and portable toilet waste into waters of the United States

without a Clean Water Act permit in violation of 33 U.S.C. §§ 1311(a) and 1319(c)(2)(A).!

During discovery, the Defendant provided a water quality table “purportedly representing data on

1 The Court previously explained in greater detail the procedural history regarding the charges against the Defendant

in its Memorandum Opinion and Order (Document 52) regarding a prior motion in limine, and refers to that opinion

herein.

]

JA-94 | B-1

Case 5:17-cr-00200 Document 56 Filed 04/13/18 Page 2 of 4 PagelD #: 480

the fecal [coliform] levels at different areas of Little Huff Creek at different dates, ranging from

2000 to 2016.” (United States’ Mot., at 3.)

The United States argues that the stream table the Defendant proposes to introduce should

be excluded because it is irrelevant under Rule 401 of the Federal Rules of Evidence. The United

States asserts that it will not attempt to introduce any evidence of the fecal coliform levels in the

stream at issue because the quality of the stream itself is immaterial to their case against the

Defendant. Because the level of pollutant in the stream, or harm to the stream in general, is not

an element the United States must prove, it argues that the general water quality data is irrelevant

under Rule 401. The United States also argues the stream table should also be excluded under

Rule 403 because it would be prejudicial and confusing to the jury.

The Defendant counters that the United States’ motion should be denied because it was not

timely filed. He further argues that the water quality table is admissible because there is a clear

path to the authenticity of the data in question, and because it is relevant. The Defendant contends

that the table “provides the jury with an alternative explanation for why Mr. Blankenship’s

neighbors smelled a sewage odor emanating from Little Huff Creek.” (Def.’s Resp. at 1-2.)

According to the Defendant, this evidence will speak to the photos taken by the Defendant’s

neighbors that the United States intends to introduce and will “demonstrate that sewage was

present in Little Huff Creek in 2015-2016 from sources other than Mr. Blankenship....” (dd. at

9.) The Defendant argues that this evidence is relevant because “the sewage odor is the basis the

neighbor witnesses have for alleging that Mr. Blankenship was discharging.” (d.)

Rule 401 of the Federal Rules of Evidence states that “[e]vidence 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)

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Case 5:17-cr-00200 Document 56 Filed 04/13/18 Page 3 of 4 PagelD #: 481

the fact is of consequence in determining the action.” Further, pursuant to Rule 403, “[t]he court

may exclude relevant evidence if its probative value is substantially outweighed by a danger of

one or more of the following: unfair prejudice, confusing the issues....” Fed. R. Evid. 403.

Without addressing the timeliness” issue in great detail, the Court finds that the water

quality chart the Defendant seeks to introduce is not relevant. Based on the charges in the

indictment, the United States must prove that the Defendant knowingly discharged a pollutant from

a point source without a permit issued in accordance with the Clean Water Act. See, United States

v. Cooper, 482 F.3d 658, 663 (4th Cir. 2007); United States v. Wilson, 133 F.3d 251, 264 (4th Cir.

1997). The quality of the stream, before and during the time in which the Defendant is charged

with discharging into the stream, is not relevant to the elements of the charged offense. Further,

appropriate cross examination of the testimony of the neighbor witnesses, with respect to the odor

of the stream, can fully address this issue from the Defendant’s perspective without introducing

the water quality table.

However, even if the evidence were relevant, the Court finds that the water quality table

should be excluded under Rule 403. The water quality of the stream is not determinative of

whether or not the Defendant illegally discharged pollutants into a water of the United States

without a permit. The quality of the stream is not at issue. Any possible probative value of the

water quality table is substantially outweighed by the potential for confusing the jury regarding

the actual elements of the charged offense.

2 Although the United States’ motion was filed outside of the deadline established for motions in limine, the Court

would have necessarily ruled on the issue had it arisen during trial and therefore finds that a ruling before trial, which

will assist the parties in planning trial strategy, is appropriate.

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Case 5:17-cr-00200 Document 56 Filed 04/13/18 Page 4 of 4 PagelD #: 482

CONCLUSION

WHEREFORE, after thorough review and careful consideration, the Court ORDERS that

the United States Motion in Limine to Exclude Water Quality Data and Evidence Concerning Lack

of Harm (Document 48) be GRANTED.

The Court DIRECTS the Clerk to send a copy of this Order to the Defendant and counsel,

to the United States Attorney, to the United States Probation Office, and to the Office of the United

States Marshal.

ENTER: April 13, 2018

IRENE C. 2S G

UNITED STATES DISTRICT JUDGE

SOUTHERN DISTRICT OF WEST VIRGINIA

JA-97 B-4

NUMBER

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 2019

MICHAEL BLANKENSHIP, Petitioner,

Vv.

- UNITED STATES OF AMERICA, Respondent.

APPENDIX C

TO 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

Case 5:17-cr-00200 Document 52 Filed 04/10/18 Page 1 of 6 PagelD #: 448

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA .

BECKLEY DIVISION

UNITED STATES OF AMERICA,

Plaintiff,

V. CRIMINAL ACTION NO. 5:17-cr-00200

MICHAEL BLANKENSHIP,

Defendant.

MEMORANDUM OPINION AND ORDER

The Court has reviewed the Defendant’s Second Motion in Limine to Exclude Other Bad

Acts Evidence at Trial (Document 36), the Defendant’s Memorandum in Support (Document 37),

and the United States’ Response to Defendant’s Second Motion in Limine to Exclude Other Bad

Acts Evidence at Trial (Document 40). For the reasons stated herein, the Court finds that the

Defendant’s motion should be denied, subject to a limiting instruction, and the Government’s

evidence should be admitted.

The United States alleges that the Defendant, Michael Blankenship, owned Hanover

Contracting Company, LLC, a business engaged in “cleaning portable toilets, hauling domestic

sewage, and disposing of the sewage... .” (Indictment, at ] 3.) In order to perform these tasks,

Mr. Blankenship allegedly used two sewage-hauling trucks, each capable of carrying between 400

and 800 gallons of sewage. On November 16, 2017, the Defendant was indicted on eleven counts

of discharging untreated sewage and portable toilet waste into waters of the United States without

]

JA - 66 res

Case 5:17-cr-00200 Document 52 Filed 04/10/18 Page 2 of 6 PagelD #: 449

a permit issued pursuant to the Clean Water Act in violation of 33 U.S.C. §§ 1311(a) and

1319(c)(2)(A).

On March 20, 2018, Mr. Blankenship filed a Motion in Limine to Exclude Other Bad Acts

Evidence at Trial (Document 24) and a Motion to Exclude Untimely Noticed 404(b) Evidence, or

in the Alternative, Motion for Leave to File Any Additional Motions in Limine to Exclude 404(b)

Testimony (Document 30). United States Magistrate Judge Omar Aboulhosn held a pre-trial

motions hearing on March 27, 2018, wherein the parties informed the Court that they had reached

an agreement on the Defendant’s motion in limine to exclude evidence of prior bad acts in that the

United States had agreed not to present any evidence at trial of the Defendant’s prior state court

misdemeanor convictions. Magistrate Judge Aboulhosn therefore terminated the motion in

limine as moot. Magistrate Judge Aboulhosn also denied the Defendant’s motion to exclude

404(b) evidence, finding that the United States “exercised good faith in disclosing the additional

witness statements as soon as that information became known, and did not disclose same untimely

due to the United States continuing obligation and duty to disclose discovery when it becomes

known.” (Order, at 2) (Document 34.)

In response to the Magistrate Judge’s findings, the Defendant filed this second motion in

limine. Mr. Blankenship argues that the United States intends to introduce at trial evidence

consisting of testimony from his neighbors, Denver and Virginia Lester, regarding the illegal

discharges. The Defendant argues that this evidence will consist of pictures and testimony from

Mr. and Mrs. Lester showing that Mr. Blankenship discharged the sewage inappropriately on

unspecified dates that are separate from the specific dates charged in the indictment. Because this

evidence falls outside the time for which Mr. Blankenship is charged with a crime, the Defendant

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argues that this evidence constitutes prior bad acts evidence not admissible pursuant to Rule 404(b)

of the Federal Rules of Evidence. The Defendant argues this evidence amounts to “other crimes”

evidence that is not necessary to complete the story of the crime for which he will be tried, that it

does not prove his intent to violate the Clean Water Act, that it is unreliable, and that the unfair

prejudicial effect it will have on the jury substantially outweighs its probative value.

The United States counters that the evidence is admissible because it does not fall under

the purview of Rule 404(b). The United States contends that the evidence is not evidence of prior

bad acts, but that it is intrinsic to, and completes the story of, the crimes for which the Defendant

is charged. The United States asserts that the evidence from Mr. and Mrs. Lester which falls

outside of the charging period “provides context to the eleven charges to be presented to the jury”

such that it is not subject to exclusion under Rule 404(b). The United States alternatively argues

that, even if the evidence does fall under the purview of Rule 404(b), it is still admissible because

it is relevant to an issue the United States must prove, it is probative of an element of the crime, it

is reliable, and its probative value is not substantially outweighed by the danger of unfair prejudice.

Rule 404(b) of the Federal Rules of Evidence provides that “[e]vidence 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.” Fed. R. Evid. 404(b)(1).. The rule

further states that “[t]his evidence may be admissible for another purpose, such as proving motive,

opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of

accident.” Jd. at 404(b)(2). “Rule 404(b) only applies, however, to evidence relating to acts

extrinsic to the conduct being prosecuted. Evidence intrinsic to the story of the crime does not

fal] under Rule 404(b)’s prohibition.” United States v. Cooper, 482 F.3d 658, 663 (4th Cir. 2007)

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Case 5:17-cr-00200 Document 52 Filed 04/10/18 Page 4 of 6 PagelD #: 451

(citing United States v. Lipford, 203 F.3d 259, 268 (4th Cir. 2000)). In order for extrinsic evidence

to be admissible under Rule 404(b), it must be (1) relevant to an issue other than the defendant’s

character, (2) probative of an essential element of the crime for which the defendant is charged,

(3) reliable, and (4) admissible under Rule 403 such that its probative value is not substantially

outweighed by the danger of confusion or unfair prejudice to the jury. See, United States v.

McBride, 676 F.3d 385, 395 (4th Cir. 2012).

The Court finds 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).

According to its discovery disclosures, the United States intends to introduce evidence at trial from

Mr. and Mrs. Lester that they witnessed and took photographs of the Defendant discharging

sewage waste into Little Huff Creek both before and during the time period alleged in the

indictment. This evidence constitutes the history of Mr. Blankenship’s discharges and is

inextricably intertwined with the Clean Water Act violations that the United States must prove at

trial. Although some of the discharges Mr. and Mrs. Lester will testify to fall outside of the

charging period in the indictment, they are sufficiently connected to the criminal activity charged

in the indictment such that they tell the story of the crime. See, United States v. Kennedy, 32 F.3d

876, 887 (4th Cir. 1994) (“[E]vidence of uncharged conduct is not considered ‘other crimes’

evidence if it arose out of the same series of transactions as the charged offense or if it is necessary

to complete the story of the crime (on) trial.”) (internal citations omitted). Mr. and Mrs. Lester

will testify that the discharges arose out of the same series of discharges contained in the

indictment. Their testimony is expected to complete the story regarding the activities for which

JA - 69 C-4

Case 5:17-cr-00200 Document 52 Filed 04/10/18 Page 5 of 6 PagelD #: 452

Mr. Blankenship is charged. Thus, the evidence does not fall within the purview of Rule 404(b)

and admissible.

However, even if the evidence was not intrinsic, it would still be admissible under Rule

404(b) analysis. The evidence is relevant to issues other than the Defendant’s character, such as

his intent to discharge the pollutants without a permit, and whether he did so in the absence of

mistake or accident. The United States must prove at trial that the Defendant committed the

alleged acts knowingly, and the Lester evidence is probative of this element. Although the

Defendant argues otherwise, the Lester evidence is also reliable. Mr. and Mrs. Lester provide

specific details about the allegations, including photographs, such that their testimony is not “so

preposterous that it could not be believed by a rational and properly instructed jury.” United

States v. Aramony, 88 F.3d 1369, 1377 (4th Cir. 1996). Finally, the probative value of the

evidence and testimony is not substantially outweighed by unfair prejudice. Under an appropriate

limiting instruction, the evidence relating to undated discharges is not confusing and will not be

unduly prejudicial under Rule 403.! Therefore, the evidence should not be excluded.

CONCLUSION

WHEREFORE, after thorough review and careful consideration, the Court ORDERS that

the Defendant’s Second Motion in Limine to Exclude Other Bad Acts Evidence at Trial (Document

36) be DENIED.

1 The Court further notes that this same limiting instruction would prevent Mr. and Mrs. Lester’s testimony from

removing the Government’s burden to prove criminal conduct on the dates charged in the indictment. Such a limiting

instruction would explain that the testimony outside the timeline in the indictment provides context and history to the

charged activity, but does not, on its own, prove that the Defendant acted on the dates and in the manner charged in

the indictment.

JA-70 C-5

Case 5:17-cr-00200 Document 52 Filed 04/10/18 Page 6 of 6 PagelD #: 453

The Court DIRECTS the Clerk to send a copy of this Order to the Defendant and counsel,

to the United States Attorney, to the United States Probation Office, and to the Office of the United

States Marshal.

ENTER: April 10, 2018

IRENE C. 2 G

UNITED STATES DISTRICT JUDGE

SOUTHERN DISTRICT OF WEST VIRGINIA

JA-71 C-6

NUMBER

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 2019

MICHAEL BLANKENSHIP, Petitioner,

Vv.

UNITED STATES OF AMERICA, Respondent.

APPENDIX D

TO 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

Case 5:17-cr-00200 Document 94 Filed 01/17/19 Page 1 of 7 PagelD #: 1101

AO 245B (Rev. 02/18) Judgment in a Criminal Case

Sheet !

UNITED STATES DISTRICT COURT

Southern District of West Virginia

UNITED STATES OF AMERICA JUDGMENT IN A CRIMINAL CASE

Vv. )

MICHAEL BLANKENSHIP Case Number: 5:17-CR-00200-01

) USM Number: 14799-088

)

) Lorena Litten

) Defendant’s Attorney

THE DEFENDANT:

LC pleaded guilty to count(s)

[_] pleaded nolo contendere to count(s)

which was accepted by the court.

VJ was.found guilty on count(s) 4 & 9 of the Indictment

after a plea of not guilty.

The defendant is adjudicated guilty of these offenses:

Title & Section Nature of Offense Offense Ended Count

33 U.S.C. §8 131 1(a) & 1319(c)(2)(A) 9/29/2015 9

pollutant discharge without a permit

The defendant is sentenced as provided in pages 2 through 7 of this judgment. The sentence is imposed pursuant to

the Sentencing Reform Act of 1984.

W| The defendant has been found not guilty on count(s) 1, 2, 3, 5, 6, 7, 8, 10 and 11 of the Indictment

CX Count(s) CJ is _ LJare dismissed on the motion of the United States.

_,,_ It is ordered that the defendant must notify the United States attorney for this district within 30 days of any change of name, residence,

or mailing address until all fines, restitution, costs, and special assessments imposed by this judgment are fully paid. ‘If ordered to pay restitution,

the defendant must notify the court and United States attorney of material changes in economic circumstances.

1/16/2019

Date of imposition of Judgment

Dihwe 0. Sy

IRENE C. BERGER

UNITED STATES DISTRICT JUDGE

SOUTHERN DISTRICT OF WEST VIRGINIA

Name and Title of Judge

1/17/2019

Date

JA - 556 D-1

Case 5:17-cr-00200 Document 94 Filed 01/17/19 Page 2 of 7 PagelD #: 1102

AO 245B (Rev. 02/18) Judgment in Criminal Case

Sheet 2 — Imprisonment

Judgment — Page 2 of 7

DEFENDANT: MICHAEL BLANKENSHIP

CASE NUMBER: 5:17-CR-00200-01

IMPRISONMENT

. The defendant is hereby committed to the custody of the Federal Bureau of Prisons to be imprisoned for a total

term of:

FIFTEEN (15) MONTHS.

W\ The court makes the following recommendations to the Bureau of Prisons:

The Court recommends that the defendant be placed in a facility as near as possible to his home in Hanover, West Virginia.

(1 The defendant is remanded to the custody of the United States Marshal.

C1) The defendant shall surrender to the United States Marshal for this district:

CI at DOham O pm on

[] as notified by the United States Marshal.

W\ The defendant shall surrender for service of sentence at the institution designated by the Bureau of Prisons:

(CJ before 2 p.m. on

M as notified by the United States Marshal.

[] as notified by the Probation or Pretrial Services Office.

RETURN

I have executed this judgment as follows:

Defendant delivered on to

at , with a certified copy of this judgment.

UNITED STATES MARSHAL

DEPUTY UNITED STATES MARSHAL

JA - 557 D-2

Case 5:17-cr-00200 Document 94 Filed 01/17/19 Page 3 of 7 PagelD #: 1103

AO 245B (Rev. 02/18) Judgment in a Criminal Case

Sheet 3 — Supervised Release

Judgment—-Page 3 of 7

DEFENDANT: MICHAEL BLANKENSHIP

CASE NUMBER: 5:17-CR-00200-01

SUPERVISED RELEASE

Upon release from imprisonment, you will be on supervised release for a term of :

ONE (1) YEAR.

MANDATORY CONDITIONS

1, You must not commit another federal, state or local crime.

2. You must not unlawfully possess a controlled substance.

You must refrain from any unlawful use of a controlled substance. You must submit to one drug test within 15 days of release from

imprisonment and at least two periodic drug tests thereafter, as determined by the court.

M1 The above drug testing condition is suspended, based on the court's determination that you

pose a low risk of future substance abuse. (check if applicable)

4, CJ You must make restitution in accordance with 18 U.S.C. §§ 3663 and 3663A or any other statute authorizing a sentence of

restitution. (check if applicable)

caf You must cooperate in the collection of DNA as directed by the probation officer. (check if applicable)

C] You must comply with the requirements of the Sex Offender Registration and Notification Act (34 U.S.C. § 20901, et seq.) as

directed by the probation officer, the Bureau of Prisons, or any state sex offender registration agency in the location where you

reside, work, are a student, or were convicted of a qualifying offense. (check if applicable)

7. CL) You must participate in an approved program for domestic violence. (check if applicable)

You must comply with the standard conditions that have been adopted by this court as well as with any other conditions on the attached

page.

JA - 558 D-3

Case 5:17-cr-00200 Document 94 Filed 01/17/19 Page 4 of 7 PagelD #: 1104

AO 245B (Rev. 02/18) Judgment in a Criminal Case

Sheet 3A —- Supervised Release

Judgment—Page 4 of 7

DEFENDANT: MICHAEL BLANKENSHIP

CASE NUMBER: 5:17-CR-00200-01

STANDARD CONDITIONS OF SUPERVISION

As part of your supervised release, you must comply with the following standard conditions of supervision. These conditions are imposed

because they establish the basic expectations for your behavior while on supervision and identify the minimum tools needed by probation

officers to keep informed, report to the court about, and bring about improvements in your conduct and condition.

1. You must report to the probation office in the federal judicial district where you are authorized to reside within 72 hours of your

release from imprisonment, unless the probation officer instructs you to report to a.different probation office or within a different time

frame.

2. After initially reporting to the probation office, you will receive instructions from the court or the probation officer about how and

when you must report to the probation officer, and you must report to the probation officer as instructed.

3. You must not knowingly leave the federal judicial district where you are authorized to reside without first getting permission from the

court or the probation officer.

You must answer truthfully the questions asked by your probation officer.

You must live at a place approved by the probation officer. If you plan to change where you live or anything about your living

arrangements (such as the people you live with), you must notify the probation officer at least 10 days before the change. If notifying

the probation officer in advance is not possible due to unanticipated circumstances, you must notify the probation officer within 72

hours of becoming aware of a change or expected change.

6. You must allow the probation officer to visit you at any time at your home or elsewhere, and you must permit the probation officer to

take any items prohibited by the conditions of your supervision that he or she observes in plain view.

7. You must work full time (at least 30 hours per week) at a lawful type of employment, unless the probation officer excuses you from

doing so. If you do not have full-time employment you must try to find full-time employment, unless the probation officer excuses

you from doing so. If you plan to change where you work or anything about your work (such as your position or your job

responsibilities), you must notify the probation officer at least 10 days before the change. If notifying the probation officer at least 10

days in advance is not possible due to unanticipated circumstances, you must notify the probation officer within 72 hours of

becoming aware of a change or expected change.

8. You must not communicate or interact with someone you know is engaged in criminal activity. If you know someone has been

convicted of a felony, you must not knowingly communicate or interact with that person without first getting the permission of the

probation officer.

9. Ifyou are arrested or questioned by a law enforcement officer, you must notify the probation officer within 72 hours.

10. You must not own, possess, or have access to a firearm, ammunition, destructive device, or dangerous weapon (i.e., anything that was

designed, or was modified for, the specific purpose of causing bodily injury or death to another person such as nunchakus or tasers).

11. You must not act or make any agreement with a law enforcement agency to act as a confidential human source or informant without

first getting the permission of the court.

12. Ifthe probation officer determines that you pose a risk to another person (including an organization), the probation officer may

require you to notify the person about the risk and you must comply with that instruction. The probation officer may contact the

person and confirm that you have notified the person about the risk.

13, You must follow the instructions of the probation officer related to the conditions of supervision.

U.S. Probation Office Use Only

AUSS. probation officer has instructed me on the conditions specified by the court and has provided me with a written copy of this

judgment containing these conditions. For further information regarding these conditions, see Overview of Probation and Supervised

Release Conditions, available at: www.uscourts.gov.

Defendant's Signature Date

JA - 559 D-4

Case 5:17-cr-00200 Document 94 Filed 01/17/19 Page 5 of 7 PagelD #: 1105

AO 245B (Rev. 02/18) Judgment in a Criminal Case

Sheet 3B — Supervised Release

Judgment—Page 5 of 7

DEFENDANT: MICHAEL BLANKENSHIP

CASE NUMBER: 5:17-CR-00200-01

ADDITIONAL SUPERVISED RELEASE TERMS

While on supervised release, the defendant must not commit another federal, state, or local crime, must not possess a firearm or other

dangerous device, and must not unlawfully possess a controlled substance. The defendant must also comply with the standard terms

and conditions of supervised release as recommended by the United States Sentencing Commission and as adopted by the United States

District Court for the Southern District of West Virginia, including the special condition that the defendant shall participate in a

program of testing, counseling, and treatment for alcoho! abuse as directed by the probation officer, until such time as the defendant is

released from the program by the probation officer; the defendant shall not, however, be required to participate in drug treatment. In

addition, the defendant shall comply with the Standard Conditions of Supervision adopted by the Southern District of West Virginia in

Local Rule of Criminal Procedure 32.3, as follows:

1) If the defendant is unemployed, the probation officer may direct the defendant to register and remain active with Workforce West

Virginia;

2) The defendant shall submit to random urinalysis or any drug screening method whenever the same is deemed appropriate by the

probation officer and shall participate in an alcohol abuse program as directed by the probation officer. The defendant shall not use any

method or device to evade a drug screen;

3) As directed by the probation officer, the defendant will make co-payments for drug testing and drug treatment services at rates

determined by the probation officer in accordance with a court-approved schedule based on ability to pay and availability of third-party

payments; and

4) A term of community service is imposed on every defendant on supervised release or probation. Fifty hours of community service is

imposed on every defendant for each year the defendant is on supervised release or probation. The obligation for community service is

waived if the defendant remains fully employed or actively seeks such employment throughout the year.

JA - 560 D-5

Case 5:17-cr-00200 Document 94 Filed 01/17/19 Page 6 of 7 PagelD #: 1106

AO 245B (Rev. 02/18) Judgment in a Criminal Case

Sheet 5 — Criminal Monetary Penalties

Judgment — Page 6 of 7

DEFENDANT: MICHAEL BLANKENSHIP

CASE NUMBER: 5:17-CR-00200-01

CRIMINAL MONETARY PENALTIES

The defendant must pay the total criminal monetary penalties under the schedule of payments on Sheet 6.

Assessment JVTA Assessment* Fine Restitution

TOTALS $ 200.00 $ 0.00 $ 10,000.00 $ 0.00

(1 The determination of restitution is deferred until . An Amended Judgment in a Criminal Case (AO 245C) will be entered

after such determination.

LJ The defendant must make restitution (including community restitution) to the following payees in the amount listed below.

If the defendant makes a partial payment, each payee shall receive an approximately proportioned payment, unless specified otherwise in

the priority order or percentage payment column below. However, pursuant to 18 U.S.C. § 3664(i), all nonfederal victims must be paid

before the United States is paid.

f _ otal ituti

TOTALS $ 0.00 $ 0.00

CL] Restitution amount ordered pursuant to plea agreement $

The defendant must pay interest on restitution and a fine of more than $2,500, unless the restitution or fine is paid in full before the

fifteenth day after the date of the judgment, pursuant to 18 U.S.C. § 3612(f). All of the payment options on Sheet 6 may be subject

to penalties for delinquency and default, pursuant to 18 U.S.C. § 3612(g).

(J The court determined that the defendant does not have the ability to pay interest and it is ordered that:

(1 the interest requirement is waived forthe [] fine (] restitution.

(1 séthe interest requirement for the OO fine C1 restitution is modified as follows:

* Justice for Victims of Trafficking Act of 2015, Pub. L. No. 114-22. ;

** Findings for the total amount of losses are required under Chapters 109A, 110, 110A, and 113A of Title 18 for offenses committed on or

after September 13, 1994, but before April 23, 1996.

JA - 561 D-6

AO 245B (Rev. ook PRE RIA FE; 09200, Document 94 Filed 01/17/19 Page 7 of 7 PagelD #: 1107

Sheet 6 — Schedule of Payments

Judgment — Page 7 of rd

DEFENDANT: MICHAEL BLANKENSHIP

CASE NUMBER: 5:17-CR-00200-01

SCHEDULE OF PAYMENTS

Having assessed the defendant’s ability to pay, payment of the total criminal monetary penalties is due as follows:

A (1 Lump sum payment of $ due immediately, balance due

C] not later than , or

(| inaccordancewithh C, OF D, OF E,or CZ F below; or

B [Payment to begin immediately (may be combined with LIC, O1D,or 1 F below); or

C (Payment in equal (e.g., weekly, monthly, quarterly) installments of $ over a period of

(e.g., months or years}, to commence (e.g., 30 or 60 days) after the date of this judgment; or

D (Payment in equal (e.g., weekly, monthly, quarterly) installments of $ over a period of

(e.g., months or years), to commence (e.g., 30 or 60 days) after release from imprisonment to a

term of supervision; or

E (Payment during the term of supervised release will commence within (e.g., 30 or 60 days) after release from

imprisonment. The court will set the payment plan based on an assessment of the defendant’s ability to pay at that time; or

F Special instructions regarding the payment of criminal monetary penalties:

The $200 special assessment was paid in full on January 16, 2019. The defendant shall pay the $10,000 fine in monthly installments of $300

each, with the first payment becoming due 60 days after the defendant's release from custody. The defendant shall make the fine payments to the

Clerk. United States District Court, 110 North Heber Street, Room 119, Beckley, WV 25801.

Unless the court has expressly ordered otherwise, if this judgment imposes imprisonment, payment ofcriminal monetary penalties is due during

the period of imprisonment. All criminal monetary penalties, except those payments made through the Federal Bureau of Prisons’ Inmate

Financial Responsibility Program, are made to the clerk of the court.

The defendant shall receive credit for all payments previously made toward any criminal monetary penalties imposed.

C1 Joint and Several

Defendant and Co-Defendant Names and Case Numbers (including defendant number), Total Amount, Joint and Several Amount,

and corresponding payee, if appropriate.

[1 The defendant shall pay the cost of prosecution.

[1 The defendant shall pay the following court cost(s):

(1) The defendant shall forfeit the defendant’s interest in the following property to the United States:

Payments shall be applied in the following order: (1) assessment, (2) restitution principal, (3) restitution interest, (4) fine principal, (5) fine

interest, (6) community restitution, (7) JVTA assessment, (8) penalties, and (9) costs, including cost of prosecution and court costs.

JA - 562 D-7

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.