UNPUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 19-4072
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MICHAEL BLANKENSHIP,
Defendant - Appellant.
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)
Submitted: September 25, 2019 Decided: October 1, 2019
Before WILKINSON, MOTZ, and RICHARDSON, Circuit Judges.
Affirmed by unpublished per curiam opinion.
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.
Unpublished opinions are not binding precedent in this circuit. PER CURIAM:
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.” Id. (internal
quotation marks omitted).
A witness’s credibility may be attacked or supported by testimony 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
2 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.”).
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).
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
3 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).
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
4 properly found that admission of the chart may confuse the jury.
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UNPUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 19-4072
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MICHAEL BLANKENSHIP,
Defendant - Appellant.
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)
Submitted: September 25, 2019 Decided: October 1, 2019
Before WILKINSON, MOTZ, and RICHARDSON, Circuit Judges.
Affirmed by unpublished per curiam opinion.
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.
Unpublished opinions are not binding precedent in this circuit. PER CURIAM:
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.” Id. (internal
quotation marks omitted).
A witness’s credibility may be attacked or supported by testimony 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
2 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.”).
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).
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
3 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).
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
4 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 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.” Id. at 247.
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
5 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 lesser-included 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).
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
6 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