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Federal judge denies nine Blankenship defense motions

By Wendy Holdren

Register-Herald Reporter

BECKLEY, W.Va. — District Court Judge Irene C. Berger denied nine defense motions Wednesday, all of which asked for Count One in the superseding indictment against former Massey Energy CEO Don Blankenship to be dismissed.

Motions 21-29, filed April 7, asked for the dismissal of Count One, which charges Blankenship with willfully violating mandatory federal mine safety and health standards at Upper Big Branch, and defrauding the U.S. and the Mine Safety and Health Administration.

• Defense attorneys argued in Motion 21 that Count One was duplicitous, and the indictment could not charge Blankenship with two conspiracies in a single count.

Berger cited case law stating “(a) single agreement to commit several crimes constitutes one conspiracy.”

• In Motion 22, the defense argued for dismissal because the superseding indictment “does not allege a single agreement” to support Count One.

Because the prosecution alleges a “multi-object conspiracy,” the defense said it must show that Blankenship entered a “single agreement to commit (those) several crimes.”

Berger denied the motion: “The Court finds that the superseding indictment plainly alleges that an agreement, or ‘meeting of minds,’ was entered into during the time period covering the alleged conspiracy.”

• The defense argued in Motion 23 that Blankenship was charged with non-criminal conduct, and that the superseding indictment does not describe how the safety violations were concealed or covered up.

In theory, they said allegations could encompass the act of “correcting a mine safety violation before it could be observed…”

Berger ruled that the indictment plainly alleges Blankenship conspired to defraud the U.S. “by obstructing its lawful functions through willful violations of mandatory federal mine safety and health standards.”

“In view of the allegations contained in the indictment, the Defendant’s argument that he only corrected violations, and thus, his alleged acts were not criminal, borders on the absurd,” Berger wrote.

“Simply put, mine operators cannot willfully violate mandatory federal mine safety and health standards and obstruct the lawful functions of MSHA as alleged here, and then avoid responsibility simply because

providing advance warning allowed their employees to ‘correct’ said violations with inspectors at the doorstep. Such a reality would strip applicable sections of the United States Code of any force or meaning, and render MSHA impotent.”

• In Motion 24, the defense argued Count One “fails to cite, let alone set forth the elements of, a single regulation (i.e., standard) that Mr. Blankenship allegedly conspired to willfully violate.”

Berger ruled, “The superseding indictment is replete with identification of the particular standard or standards that the Defendant allegedly conspired to willfully violate.”

• The defense argued in Motion 25 that Count One “alleges as an overt act the making of false statements to shareholders after the mine had already closed, allegedly in order to conceal the existence of the conspiracy.”

They argue because the statements were made after the April 5, 2010, explosion, they could not have been part of the conspiracy.

Further, the defense said it is impossible to know whether the grand jury would have returned Count One in the indictment in the absence of the allegation.

Berger denied the motion and stated, “The Court is not in a position to determine whether the statements were done in furtherance of the main criminal objective of the conspiracy, or rather, done after these central objectives had been attained.”

• Defense attorneys argue in Motion 26 there are no allegations in the superseding indictment suggesting Blankenship “had any knowledge of the conduct described therein, much less that he agreed to it.”

They also argue no facts were alleged that Blankenship “personally joined an agreement to impede MSHA that included the falsification of dust samples.”

Berger ruled, as stated in a separate opinion, the agreement underpinning a conspiracy “need only be a tacit or mutual understanding between the defendant and his accomplice(s).”

• Motion 27 charges that the prosecution selected the parts of the Mine Act it wanted to use and avoided other parts; “Count One does not charge the advance notice part of the conspiracy under the Mine Act,” but instead “charges the conduct as a fraud on the United States under the defraud clause of the conspiracy statute.”

The defense also argues that the “framing” of Count One as a violation of the defraud clause instead of the offense clause unfairly burdens him because the government “tries to convert a six-month misdemeanor into a five-year felony.”

In her denial of the motion, Berger cited a Supreme Court ruling that establishes fraud as “any conspiracy for the purpose of impairing, obstructing, or defeating the lawful function of any department of government.”

• In Motion 28, the defense said the superseding indictment fails to state a conspiracy to defraud the U.S. of money or property.

Defense attorneys argued “Mine safety enforcement proceedings that did not occur and did not result in the imposition of penalties do not give rise to debts.”

Berger again denied this motion, citing three cases of “clear Supreme Court precedent.”

• The defense in Motion 29 argue the superseding indictment fails to show specific intent — “Only a defendant who enters an agreement with the specific intent to commit a criminal offense can be said to have engaged in a conspiracy.”

Defense attorneys contend the indictment cites corporate polices that may have led to mine safety violations, but “not that (Blankenship) specifically intended to commit such violations.”

Berger said the existence of a mutual understanding between conspirators is sufficient evidence of an agreement.

“While it is unclear at this point in the proceeding whether the United States’ evidence will be sufficient for a conviction, this consideration is unnecessary to the Court’s current determination.”

— E-mail: [email protected] and follow on Twitter @WendyHoldren

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