A major coal producer is trying in the Supreme Court to block trial of a 172-count indictment accusing it and eight employees of conspiring to violate the Federal Coal Mine Health and Safety Act, knowingly filing false reports, and willfully violating standards set under the law to protect miners from black lung disease.
The producer is Consolidation Coal Co. (Consol) of Georgetown, Ohio. Its owner is Continental Oil Co.
A grand jury returned the indictment in Augut 1975 but federal Judge Robert M. Duncan in Columbus suppressed the evidence on which it was based - mainly articles from offices including so-called cassettes for collecting dust samples, books, folders and pads.
Acting on information from a confidential informat who had worked at two Consol mines in Harrison County, two officials of the Government's Mining Enforcement and Safety Administration (MESA), health specialist William A. Holgate and inspector Thomas A. Jeske had obtained search warrants from a U.S. magistrate.
Judge Duncan held that the warrants violated the Fourth Amendment to the Constitution, which says that "no warrants shall issue, but upon probable cause."
A year after he ruled, the 6th U.S. Circuit Court of Appeals reversed, holding in July 1977 that the warrants met the constitutional test. Indeedthe government contends not only that there was "probable cause", but also that warrants weren't even necessary.
Petitions for Supreme Court review were filed by Consol and two of the indicted employes, Francis L. Marks, chief environmental technician for its Medwest region, and Raymond J. Zitko, assistant safety director. The court may act on the case later this session.
The case dates back to May 15, 1974, when the unnamed informant met with Holgate and Jeske. In sworn affidavits the MESA officials told the magistrate that the informant, "speaking from personal knowledge,"had told them that:
Supervisors had directed him to keep at hand extra cassettes containing dust samples collected under controlled, "clean" conditions.
Supervisors also directed him to send all cassettes containing dust samples collected under actual mining conditions to company technicians for opening and analysis.
Consol substituted the "clean" samples for any legitimate samples showing dust levels in excess of those allowed under federal mandatory health standards.
Certain Consol laboratory technicians, whom he named, had told him of similar fraudulent practices at other company mines in the central Ohio region.
A list of all cassette samples actually collected but then replaced by "clean" ones was kept on a bulletin board in the environment office of a particular Consol mine, Franklin No. 25 in New Athens.
In support of the allegations, the informant gave Jeske a photocopy of a list in the mine office showing that certain cassettes for collecting "high risk dust samples" had been voided. He also told the officials that a listing of all voided an dfictitious samples was in a brown "master book" in a desk drawer in the office.
Next day at the Franklin No. 25 environment office, Jeske said, he saw just such a list. He also saw a Consol technician take a hard-bound book from a desk drawer.
Several days later, after preparing the affidavits, Jeske and Holgate went to magistrate Joseph J. Freedman, who designated them deputy U.S. marshals and issued warrants to search eight separate Consol premises. They served the warrants and seized the cassettes and other items on May 22, in what the defendants call "surprise raids."
Under the mine-health law, the appeals court said, the searches were "essential components of a single compliance inquiry" and involved "reasonable intrusions which were 'routine' in scope if not in motivation."
Consol, Marks and Zitko argue that the warrants were outside "probable cause" because the government had not shown that informant was creditble or that his tips were reliable.