IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

BECKLEY DIVISION
___________________________________
)
UNITED STATES OF AMERICA
)
)
v.
)
Criminal No. 5:14-cr-00244
)
DONALD L. BLANKENSHIP
)
___________________________________ )
MEMORANDUM IN SUPPORT OF DEFENSE MOTION NO. 1,
MOTION TO DISQUALIFY THIS COURT AND ALL THE JUDGES OF THE UNITED
STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
INTRODUCTION
Federal law requires that judges maintain not only actual impartiality, but also the
appearance of impartiality. 28 U.S.C. 455(a); Code of Conduct for United States Judges, 175
F.R.D. 364, 368 (1998). In this case, that standard, applied objectively, from the perspective of a
hypothetical reasonable observer from outside the judicial system, United States v.
DeTemple, 162 F.3d 279, 287 (4th Cir. 1998), requires the disqualification of all the judges of
this district and the appointment of a judge from outside the district. Accordingly, Mr.
Blankenship respectfully requests that this Court disqualify itself and all the other judges in the
Southern District of West Virginia, and refer this case to the chief judge of the Fourth Circuit to
designate another district judge of the circuit to preside. See 28 U.S.C. 292(b); United States v.
Gordon, 354 F. Supp. 2d 524 (D. Del. 2005).
This case is unique. The judge presiding over this case will have to consider and decide
whether the United States Attorney for this district, R. Booth Goodwin II, committed serious
misconduct both in deciding to prosecute Mr. Blankenship, a public figure in West Virginia, and
in misrepresenting to the grand jury the law and the facts of the case. Mr. Goodwin is the son of

the Honorable Joseph R. Goodwin, an active judge in this district, and who, it is reasonable to
assume, is a friend and colleague to his fellow judges. Given the political significance of this
prosecution, its high visibility, the substantial factual bases for the misconduct allegations, the
personal involvement of Mr. Goodwin, and his filial relationship with a district judge on this
very court, neither this Court, nor any other judge on the Southern District for West Virginia, can
preside over this case.
The defense has filed simultaneously with this motion a Motion to Dismiss the
Indictment For Selective and Vindictive Prosecution and a Motion to Dismiss the Indictment for
Improper and Misleading Conduct Before the Grand Jury, both of which it incorporates herein.
See Mem. in Supp. of Defense Mot. No. 4; Mem. in Supp. of Defense Mot. No. 5. The motion
for dismissal based upon selective and vindictive prosecution documents a series of events in
which it is apparent that the decision to indict Mr. Blankenship was made to punish him for his
exercise of his rights to criticize the government. The motion based on grand jury misconduct
presents five documented examples in which the Assistant U.S. Attorney, in the presence of U.S.
Attorney Goodwin and with his approval, used leading questions to the case agent to mislead the
grand jury as to important legal and factual issues that went to the heart of the charges against
Mr. Blankenship.
These motions regrettably demonstrate serious misconduct by the United States Attorney
and his office that requires dismissal. Neither this Court, nor any other judge in this district, can
preside over this case under these circumstances, because Mr. Goodwins father is their
colleague on this bench. A reasonable, everyday person would assume a shared understanding of
the feelings a father has for his son: a desire for him to succeed in a high profile case and a hope
he will not be criticized. A reasonable person would assume that no colleague of Judge Goodwin

would want to be the instrument of his disappointment, and therefore would doubt the ability of
any of the judges in this district to be impartial in these circumstances, since they would only be
human in reacting to [the motions] in either a defensive or an adversarial way. In re Bulger, 710
F.3d 42, 46 (1st Cir. 2013) (Souter, J., by designation). Reasonable grounds for doubt are the
standard. The test is not actual impartiality or subjective belief in the ability to be fair. Close
questions about whether disqualification is necessary must be resolved in favor of
disqualification. See In re United States, 158 F.3d 26, 30 (1st Cir. 1998); In re Chevron U.S.A.,
Inc., 121 F.3d 163, 165 (5th Cir. 1997); Nichols v. Alley, 71 F.3d 347, 352 (10th Cir. 1995);
United States v. Dandy, 998 F.2d 1344, 1349 (6th Cir. 1993); United States v. Kelly, 888 F.2d
732, 744 (11th Cir. 1989).
Anticipating the governments argument that disqualification in this case would raise the
specter of unlimited efforts by defendants to disqualify the bench by making frivolous
accusations against U.S. Attorney Goodwin, the defense notes several significant factors that
distinguish this case from others that may arise. First, the misconduct allegations in these
motions cannot be said to be frivolous. They are not invented for the purpose of seeking
disqualification. They arise from indisputable facts, which are detailed below. Second, Mr.
Blankenship is a well-known and controversial public figure in West Virginia. Unlike most other
defendants, he looms large in the regions politics, industry, and culture. He is an outspoken
opponent of the President of the United States, the Democratic Party, Democrats in statewide
office, the United Mine Workers of America and the Mine Safety and Health Administration.
Democrats in this state use his image on their political advertisements. A sitting United States
Senator, as well as others, publicly called for his indictment, saying that he had blood on his
hands. See Ex. A (ABC News broadcast, World News with Diane Sawyer, Apr. 2, 2014). The

undisguised motivation of important figures in the state to get Don Blankenship makes the
prosecutorial misconduct even more serious, and makes it even more important to ensure that
Mr. Blankenships motions, and the rest of the proceedings, are handled by a judge who is not
only impartial but who appears to all reasonable observers to be so. Finally, this is not one of the
hundreds of cases for which the U.S. Attorney is responsible, but which are handled exclusively
by his assistants. Mr. Goodwin was personally present in the grand-jury room when the
misconduct occurred and he personally appears in court in this case. He has participated in phone
conferences with the magistrate and the Court. The defense expects he intends to appear at trial.
He has repeatedly given public statements to the press concerning his offices investigation of
the Upper Big Branch explosion, and, of course, he released this indictment with a public
statement before this Courts order prohibited further dissemination.
Disqualification would be required even if Mr. Goodwins involvement were not so
direct because he is responsible for the conduct of those in his office and, in this case, he has a
personal and professional stake in the issues it presents. It is not permissible under 455(a) for
this Court or any other of his fathers colleagues to preside over it.
In making this request, the defense notes that this is not a request to transfer the case for
trial. That request is made elsewhere. Rather, this is a request to have a judge appointed from
outside this district to preside over this case initially in this district, subject to her or his
consideration of the transfer motion and other motions to dismiss.
I.

Legal Standard
A federal judge must disqualify herself from any proceeding in which [her] impartiality

might reasonably be questioned. 28 U.S.C. 455(a); see also Code of Conduct for United
States Judges, 175 F.R.D. at 368 (same). The purpose of this rule is to ensure not only actual
impartiality but also the appearance of impartiality. United States v. Carmichael, 726 F.2d 158,
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160 (4th Cir. 1984) (emphasis added); Liteky v. United States. 510 U.S. 540, 548 (1994)
([W]hat matters is not the reality of bias or prejudice but its appearance.). In other words, a
judge must disqualify herself if an appearance of partiality is created[,] even though no actual
partiality exists. Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 860 (1988). By
prohibiting the appearance of bias, as well as actual bias, the law protects both the litigants dueprocess right to an unbiased decision-maker and the public confidence in the integrity of the
judicial process. Id. at 859-60.
As explained by the Fourth Circuit, the critical question in deciding a motion to
disqualify is not whether the judge is impartial in fact. It is simply whether another, not
knowing whether or not the judge is actually impartial, might reasonably question [her]
impartiality on the basis of all the circumstances. DeTemple, 162 F.3d at 286 (quotations
omitted). Disqualification is required if a reasonable factual basis exists for doubting the judges
impartiality. In re Beard, 811 F.2d 818, 827 (4th Cir. 1987). Congress implemented this
objective standard for disqualification in 1974, abolish[ing] the rule that courts should resolve
close questions of disqualification in favor of a judges so-called duty to sit. DeTemple, 162
F.3d at 286-87 (citations omitted). The rule today, by contrast, is that close questions should be
decided in favor of disqualification. In re United States, 158 F.3d at 30; In re Chevron, 121 F.3d
at 165; Nichols, 71 F.3d at 352; Dandy, 998 F.2d at 1349; Kelly, 888 F.2d at 744.
The Fourth Circuit has also made clear that in determining whether a judges impartiality
might reasonably be questioned, the hypothetical reasonable observer is not the judge [her]self
or a judicial colleague but a person outside the judicial system. DeTemple, 162 F.3d at 287.
Judges, the Court of Appeals has warned, are accustomed to the process of dispassionate
decision making and keenly aware of their Constitutional and ethical obligations to decide

matters solely on the merits, and as a result they may regard asserted conflicts to be more
innocuous than an outsider would. Id. A judge deciding a disqualification motion, then, must
take the perspective of an everyday, lay spectator to the proceedings, rather than that of an
experienced jurist.
Applying this standard, it is well settled that an appearance of partiality may arise by
virtue of the judges relationship with current or former colleagues, see, e.g., United States v.
Jordan, 49 F.3d 152, 157 (5th Cir. 1995); United States v. Murphy, 768 F.2d 1518, 1537-38 (7th
Cir. 1985); United States v. Bobo, 323 F. Supp. 2d 1238, 1242-43 (N.D. Ala. 2004), and may
even require disqualification of a courts entire bench, see, e.g., Gordon, 354 F. Supp. 2d at 524;
see also United States v. Sigillito, 759 F.3d 913, 928 (8th Cir. 2014) (noting disqualification of
all judges of the Eastern District of Missouri), cert. denied, No. 14-7586, 2015 WL 133494 (U.S.
Jan 12, 2015); Egervary v. Young, 366 F.3d 238, 243 (3d Cir. 2004) (noting disqualification of
all judges of the Middle District of Pennsylvania); Gini v. Las Vegas Metropolitan Police Dept.,
40 F.3d 1041, 1043 n.2 (9th Cir. 1994) (noting disqualification of all judges of the District of
Nevada); Nesblett v. Concord Fed. Probation, Civil No. 13-CV-515-NT, 2014 WL 808848, at *1
(D.N.H. Feb. 28, 2014) (noting disqualification of all judges of the District of New Hampshire).
Indeed, if a defendant raises arguments that implicate the interests of a judges colleagues, the
potential for apparent bias may require disqualification even if the relationship in question ended
several decades prior. See, e.g., Bulger, 710 F.3d at 44-45.

II.

A Reasonable Person Will Doubt Whether A Judicial Colleague of Judge

Goodwin, Father of the United States Attorney, Could Remain Impartial in
Hearing and Deciding the Issues in This Case.
A. Recent Decisions Authored by Respected Judges are Strikingly Instructive Here.
Two decisions, recently published by a pair of our nations most respected jurists

Justice Souter and Court of Appeals Judge Jordan ordering disqualification in circumstances
remarkably similar to the ones present here, are particularly instructive in this case.
The first is In re Bulger, 710 F. 3d 42 (1st Cir. 2013) (Souter J., by designation), in which
Justice Souter, writing for the panel, granted a writ of mandamus to a defendant seeking to
disqualify the district judge presiding over his case. That defendant, James Whitey Bulger, had
been indicted for his involvement in a criminal organization in Boston between 1972 and 1999.
See Bulger, 710 F.3d at 43. He filed a motion to disqualify the district judge assigned to his case,
contending that the judges service thirty years earlier in the U.S. Attorneys Office created the
appearance of bias, due to the fact that Mr. Bulger planned to argue in his defense that he had
been granted immunity for his actions during the same time period by a separate and distinct
office, the New England Organized Crime Strike Force, that had had some communication
with the judges former office. Id. at 44, 48. The district judge denied the motion, and Mr. Bulger
sought mandamus. Even given the extraordinary degree of deference granted to the district court
on mandamus review, Justice Souter found that the judge had erred by refusing to disqualify
himself, explaining that [a] reasonable member of the public could easily think that anyone who
held a position of high responsibility in the Office of the United States Attorney during this
period would only be human in reacting to [Bulgers] claim in either a defensive or an
adversarial way. Id. at 46. Justice Souter emphasized that concerns about impartiality arise
from the very structure of the prosecutorial forces, which included some communication between
the Strike Force and the United States Attorneys Office, and that:
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[T]he reasonable person might well question whether a judge who

bore supervisory responsibility for prosecutorial activities during
some of the time at issue could suppress his inevitable feelings and
remain impartial when asked to determine how far to delve into the
relationship between defendant and Government, and to preside
over whatever enquiry may ultimately be conducted.
Id. at 48-49. He therefore granted the mandamus petition and assigned the case to a new judge.
As in Bulger, Mr. Blankenship asserts claims concerning the conduct of federal
prosecutors in charge of his prosecution. As in Bulger, Mr. Blankenships claims will, if
successful, require dismissal of the indictment. And, as in Bulger, Mr. Blankenships claims, if
accepted, will cause significant harm to the public standing of an office closely affiliated with
this Court. Indeed, the appearance of bias would be far more direct here than it was in Bulger.
The relationship that creates the appearance of bias is current and continuing, not thirty years
old. To decide Mr. Blankenships claims, even to decide how much inquiry they require, the
presiding judge will have to evaluate the professional conduct of the son of a colleague on this
very court.
The second case is United States v. Gordon, 354 F. Supp. 2d 524 (D. Del. 2005), where
District Judge (now Court of Appeals Judge) Jordan, presiding over the prosecution of two
defendants for alleged political corruption, disqualified himself and referred the matter to the
Chief Judge of the Third Circuit to appoint a judge from outside the district to preside over the
case. See Gordon, 354 F. Supp. 2d at 524-25. Disqualification of the entire bench was necessary,
Judge Jordan explained, because the defendants intended to subpoena one of the district judges
from the District of Delaware for evidence related to a real-estate transaction he had entered into
with them, which they claimed was relevant to their case. See id. at 525. Judge Jordan
acknowledged that the significance of the real-estate transaction was hotly contested, but noted

that the defendants claim could not be ignored as being based on a frivolous assertion of
relevancy. Id. at 527-28. He explained his decision to disqualify as follows:
Since a defense effort to subpoena Judge Farnan cannot be rejected
without consideration, the inquiry necessarily turns to whether
reasonable people could question my role as the one doing the
considering. I think they could. Indeed, I would be surprised if they
did not. This is a relatively small court, with four active trial
judges, including me. Without presuming to speak for anyone but
myself on how an objective observer would see this court, I am
persuaded that one could reasonably believe that we four judges
see each other regularly, that we have developed professional
respect, appreciation, and friendship for one another, and that a
natural empathy may be unavoidable in seeing a colleague's
reputation and privacy threatened by embroilment in a criminal
prosecution. Real or not, partiality under these circumstances could
fairly be perceived to be an issue. Since the judicial role must be
filled by one whose partiality cannot be reasonably questioned, I
cannot continue in this case.
Id. at 528.
In Judge Jordans words, since the allegations of misconduct in this case have to be
considered, the inquiry necessarily turns to whether reasonable people could question the role of
any judge on this bench as the one doing the considering. Id. His conclusion that a reasonable
person could question his role applies with even greater force here. This is also a small court,
with five active trial judges. From the objective perspective of a person from outside the judicial
system, see DeTemple, 162 F.3d at 287, the judges of this District are presumed to share close
relationships with one another. A member of the public would reasonably believe that the judges
see each other regularly, that [they] have developed professional respect, appreciation, and
friendship, and a natural empathy. Gordon, 354 F. Supp. 2d at 528. A reasonable member of
the public might further believe that a judge from this district would feel uncomfortable or
hesitant endorsing one of Mr. Blankenships misconduct allegations against a colleagues son.
Just as in Gordon, then, no judge from this district can preside over this case.

B. Mr. Blankenship is a Public Figure in West Virginia

Mr. Blankenship is a major figure in West Virginia politics, industry, and culture. He is
one of the most outspoken, recognizable, and controversial figures in the state. Mr.
Blankenships indictment delighted his enemies, including the United Mine Workers, who
described it as long overdue. See Ex. B (Cara Salvatore, Ex-CEO of Massey Coal Pleads Not
Guilty In Mine Blast, Law360, Nov. 20, 2014). Both U.S. Senators for West Virginia issued
statements praising the indictment after it issued. The New York Times called the indictment a
turning point. Trip Gabriel, West Virginia Coal Country Sees New Era as Donald Blankenship
Is Indicted, N.Y. Times, Nov. 30, 2014, at A1. The Charleston Gazette Editorial Board described
it as momentous. Blankenship Dramatic Breakthrough, Charleston Gazette, Nov. 15, 2014,
http://www.wvgazette.com/article/20141115/ARTICLE/141119512. Mere procedural orders
from this Court such as an order approving the transcription of voir dire from another case
have received press coverage. See Judge: Blankenship can view record from trial, Charleston
Gazette, Jan. 27, 2015, http://www.wvgazette.com/article/20150127/GZ01/150129312. As this
Court itself noted, [t]he press has exercised its right to report extensively on the indictment and
proceedings in this case. ECF No. 63 at 9 (emphasis added).
Mr. Blankenships status as a public figure makes these proceedings, and the alleged
misconduct by the U.S. Attorneys Office, with the personal involvement of the son of an active
judge in this district, politically significant. Fairness and the appearance of fairness are essential
to due process in every criminal prosecution. When the defendant is as controversial and
despised as Mr. Blankenship is to substantial groups of West Virginians, it is even more
important that there be no doubts about the impartiality of the judge presiding over the case. Mr.
Blankenship has alleged and provided facts to prove that the son of Judge Goodwin acted

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improperly by deciding to bring charges against him and by misleading a grand jury in order to
obtain an indictment on those charges, not to mention the multiple additional challenges to the
prosecution that Mr. Blankenship has raised in his other motions and will continue to raise
throughout this case. The political web that Mr. Blankenship has brought to the Courts attention,
linking Mr. Goodwin to Senator Joe Manchin to Senator Carte Goodwin (Judge Goodwins
nephew), must not be unraveled by a judge who the public reasonably perceives is a friend of the
Goodwin family.
C. The Misconduct Alleged is Serious and Has a Substantial Factual Basis
As in Bulger and Gordon, the allegations concerning Judge Goodwins son and his Office
are not fanciful or frivolous. There is a substantial factual basis for both of the motions at issue
here.
First, Mr. Blankenship has moved to dismiss the indictment on the ground that, in the
presence of Mr. Goodwin and with his tacit approval, the prosecutor conducting the examination
of the case agent misled the jurors to believe that negligent violations were criminal as a matter
of law and that any advance notice of the presence of inspectors was a violation of the Mine Act,
neither of which are true. See Mem. in Supp. of Defense Mot. No. 5. The prosecutors, again in
Mr. Goodwins presence and cloaked in his authority, obtained an indictment for a false
statement in a press release by showing the grand jury only a draft of that release, which was
different from the final copy, and by leading the case agent to misrepresent testimony of third
parties as to Mr. Blankenships approval of the statement for release. Courts in this circuit have
dismissed indictments for far less egregious behavior. In an ordinary case, Mr. Goodwin, as
United States Attorney, would carry supervisory responsibility for these misdeeds. See United
States v. Arnpriester, 37 F.3d 466, 467 (9th Cir. 1994). In this case, he is directly involved.

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Second, Mr. Blankenship has moved to dismiss the indictment on the ground that he is
being vindictively and selectively prosecuted, that U.S. Attorney Goodwins office has singled
him out for prosecution in retaliation for his release of documentaries concerning the explosion
at Upper Big Branch mine and for other constitutionally-protected political speech. See Mem. in
Supp. of Defense Mot. No. 4. This motion concerns in part U.S. Senator Joseph Manchins
public outrage at Mr. Blankenships documentary and his communication thereafter with U.S.
Attorney Goodwins office (a communication to which Senator Manchin, himself, has referred in
writing). It further concerns in part Senator Manchins deep connections to the Goodwin family,
including to Judge Goodwins nephew Carte Goodwin and Judge Goodwins former law
firm, Goodwin & Goodwin LLP.
This motion is supported by fact by the fact that U.S. Attorney Goodwins office told
undersigned counsel before the release of Mr. Blankenships documentary that Mr. Blankenship
was not a target of the investigation and that others were; by the fact that Senator Manchin
reacted to the documentary with furor and put in writing that he was referring Mr. Blankenship
to U.S. Attorney Goodwin; and by the fact that Mr. Blankenship then was suddenly indicted in
the months after the documentary, and a week after the election, notwithstanding that he never
before was a target; and by the fact that no one else was indicted with him, not even the targets
of the investigation to which U.S. Attorneys had previously referred and not even any of the coconspirators who allegedly joined in the alleged crimes charged in the indictment. This motion is
further supported by the mysterious haste in which the grand jury in this case was empanelled,
heard six hours of testimony, and returned the indictment, all within forty-eight hours.

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Count Four1 provides an example and an example only of the additional facts
supporting this motion for vindictive and selective prosecution. That count a 20-year securities
fraud count involves statements in a company securities filing that the government alleges are
false. While the statements in question were drafted by individuals other than Mr. Blankenship,
edited by individuals other than Mr. Blankenship, approved by individuals other than Mr.
Blankenship (including attorneys), signed by an individual other than Mr. Blankenship, and filed
by an individual other than Mr. Blankenship, only Mr. Blankenship is charged. Worse, the
defense has learned and have set forth the supporting data in the Memorandum in Support of
Motion No. 14 that all of the other major coal companies routinely make the exact same kinds
of statements that Mr. Blankenship, alone, now is charged with making, and each of these
companies has mines with as many or even more violations than UBB. None of those
companies, nor any of their executives, are facing charges either. The selectivity and
vindictiveness are palpable. Suffice it to say, this is a serious, well-supported motion that the
judge presiding over this matter will need to consider carefully and decide.
Finally, Mr. Blankenship alternatively has moved for discovery in connection with this
vindictive and selective prosecution motion. This request seeks, among other things,
communications between U.S. Attorney Booth Goodwin and Senator Manchin and nonprivileged communications between the U.S. Attorney and third parties (which would include his
family members) regarding Mr. Blankenships documentary. See Gordon, 354 F. Supp. 2d at
528. It also seeks internal U.S. Attorney documents relating to, among other things, the
documentary, the decision to prosecute Mr. Blankenship, and the decision not to prosecute others
along with him.

In addition to arguing that this count must be dismissed because of the misrepresentations used to secure it, the
defense also argues, in separate motions, that it must be struck due to its legal insufficiency.

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No judge should be put in the position of evaluating the culpability of the son of a
judicial colleague not in a civil case, not in a criminal case, and not on a motion urging serious
misconduct that could compel dismissal. Even a partial victory for Mr. Blankenship on any one
of these issues or on any of the other challenges to the prosecution that Mr. Blankenship has
raised and will continue to raise will be embarrassing for Mr. Goodwin and for the U.S.
Attorneys Office. Dismissal of the indictment on any ground will have even more significant
consequences. A reasonable member of the public will doubt whether a judge sitting on the same
court as the U.S. Attorneys father could maintain impartiality while ruling on matters so
consequential for the son of his or her close associate and as a reasonable observer from
outside the judicial system might reasonably assume his or her friend. As a result of the
familial connection between U.S. Attorney Goodwin and Judge Goodwin, as well as the public
significance of this case, there is a reasonable perception that a natural empathy may be
unavoidable by the other judges of this district, Gordon, 354 F. Supp. 2d at 528, and that a
judge would only be human in reacting to [Mr. Blankenships position] in either a defensive or
an adversarial way, Bulger, 710 F.3d at 46.
To be clear, the appearance of partiality in this case is not restricted to these two
misconduct motions. The defense has raised multiple legal issues in its other motions that require
serious consideration of whether U.S. Attorney Goodwins indictment of Mr. Blankenship
should be dismissed due its legal insufficiency. In the unlikely event of trial, the defense will
continue to raise issues that could result in negative consequences for Mr. Goodwins case
against Mr. Blankenship whether they come in the form of motions in limine, motions for
discovery, motions for sanctions, motions under Rule 29, and so on. Any ordinary person from
outside the judicial system would reasonably question whether a colleague of Mr. Goodwins

14

father could avoid his or her perceived natural sympathies with him and decide these questions
impartially in a prosecution pursued by his son against an individual of the stature and notoriety
of Don Blankenship.
CONCLUSION
Consider the feeling any judge on this bench would have if he or she found Booth
Goodwins office guilty of grand jury abuse or vindictive prosecution or merely dismissed a
count of the indictment for legal insufficiency and then faced his father in the hallway the very
next day as the decisions were being reported in the media. A reasonable observer from outside
the judicial system might reasonably question the impartiality of any judge in this district based
on this human concern. That very prospect demonstrates why a judge that has no relationship to
any of the Goodwins must make the decisions in this case. As the court held in Gordon: Real or
not, partiality under these circumstances could fairly be perceived to be an issue. 354 F. Supp.
2d at 528. Since the judicial role must be filled by one whose partiality cannot be reasonably
questioned, id., disqualification is required. And, if there is any doubt about this (and the
defense submits there is not), that doubt must be resolved in favor of recusal. In re United States,
158 F.3d at 30; In re Chevron, 121 F.3d at 165; Nichols, 71 F.3d at 352; Dandy, 998 F.2d at
1349; Kelly, 888 F.2d at 744.
To protect Mr. Blankenships due-process right to trial before a judge who is impartial
and who appears so, and to preserve the integrity of the federal judiciary here and elsewhere,
disqualification of this Court and all the other judges of the Southern District of West Virginia
and appointment of a nonresident judge is required.
For the foregoing reasons, Mr. Blankenship respectfully requests the disqualification of
this Court, and all the other judges of the Southern District for West Virginia, under 28 U.S.C.

15

 455(a). Pursuant to 28 U.S.C. 292(b), he asks that the case be referred to the chief judge of
the Fourth Circuit, who may designate and assign another district judge of the circuit to preside
over the case.
Dated: February 6, 2015

Respectfully submitted,
_/s/ William W. Taylor, III_____
William W. Taylor, III
Blair G. Brown
Eric R. Delinsky
R. Miles Clark
Steven N. Herman
ZUCKERMAN SPAEDER LLP
1800 M Street, NW
Washington, DC 20036
202-778-1800 (phone)
202-822-8106 (fax)
wtaylor@zuckerman.com
bbrown@zuckerman.com
edelinsky@zuckerman.com
mclark@zuckerman.com
sherman@zuckerman.com
_/s/ James A. Walls____________
James A. Walls (WVSB #5175)
SPILMAN THOMAS & BATTLE, PLLC
48 Donley Street, Suite 800
P.O. Box 615
Morgantown, WV 26501
304-291-7947 (phone)
304-291-7979 (fax)
jwalls@spilmanlaw.com
Counsel for Donald L. Blankenship

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CERTIFICATE OF SERVICE
I hereby certify that the foregoing has been electronically filed and service has been made
by virtue of such electronic filing this 6th day of February 2015 on:
R. Booth Goodwin, II
Steven R. Ruby
United States Attorneys Office
P.O. Box 1713
Charleston, WV 25326-1713

_/s/ Eric R. Delinsky______________

Eric R. Delinsky

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