United States District Court, S.D. West Virginia, Beckley Division
MEMORANDUM OPINION AND ORDER
C. BERGER UNITED STATES DISTRICT JUDGE .
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.
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 the fecal [coliform]
levels at different areas of Little Huff Creek at different
dates, ranging from 2000 to 2016.” (United States'
Mot., at 3.)
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.
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 .
. . .” (Id. 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.” (Id.)
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) 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.
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
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.
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.
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.
 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 ...