FormerMassey Energy CEO Don Blankenship is trying to avoid imprisonment with anuncommon request to the judge just days before his sentencing April 6.
OnMarch 31, Blankenship's attorneys asked the judge to allow Blankenship toremain free even if sentenced to jail time until the defense completes aplanned appeal of amisdemeanor charge related to conspiring to violate mine safety laws. Theformer coal boss faces a maximum one-yearjail sentence after his conviction following the investigation ofthe Upper Big Branch coal mine explosion that resulted in the deaths of 29 coalminers. He was acquitted of felony charges related to the matter.
MichaelHissam, a partner with law firm Bailey & Glasser who is also a formerassistant U.S. attorney for the Southern District of West Virginia, has beenclosely watching the case and said he believes there is high likelihood JudgeIrene Berger will be handing out the statutory maximum sentence.
"Ithink it's safe to say that given the sentencing guidelines that he faces, Idon't think anyone will be surprised if she gives him a year," Hissamsaid. "In fact, I think even the defense is anticipating a sentence ofincarceration because they made a very unusual move last night of filing amotion for continued release pending appeal before sentencing."
Federalsentencing guidelines, based on certain enhancements related to detailssurrounding the situation and crime, raise Blankenship's sentencing guidelinesto 15 to 21 months' imprisonment. Hissam pointed out that the defense hasmostly only objected to an enhancement related to obstruction of justice, whichwould still put the recommended sentence at between 10 and 12 months.
Headded that Berger's history suggests she will likely stick with the guidelinesrange.
Hissamalso said a motion for continued release pending appeal is uncommon enough thathe had not seen one before, but he thinks there is a decent chance it will begranted by Berger or the appeals court.
"Witha one-year sentence, you don't get meaningful relief if your appeal is resolvednine months into your sentence," Hissam said.
Thedefense emphasized the same point in its March 31 filing.
"Ifincarcerated pending appeal, Mr. Blankenship would serve much or all of anysentence before the Fourth Circuit decides the appeal," the filing states."Mr. Blankenship is neither a flight risk nor a danger, and he will notexercise his appellate right for the purpose of delay. Release pendingappeal is the onlyway to guarantee meaningful appellate review of the substantial questionsraised by his conviction."
Thelatest filing also previews the arguments the defense will make once they appeal.Blankenship's attorney said the appeal will raise questions around alleging aconspiracy to violate regulations without specifying the regulations violated,some of the phrasing the judge used in her instruction to the jury, and some ofthe judge's choices around witnesses and evidence allowed in the trial.
"Thequestions that the Fourth Circuit will be asked to review are fundamental tothe framing of, and to the proof and instructions to the jury concerning, thenovel conspiracy charge in this case," the filing states. "Thosequestions are important, and it is right and proper that the Fourth Circuitreview them before Mr. Blankenship is required to serve any sentence that mightbe imposed."
Thefiling also said that because many elements of the case were without precedent,the court was forced to face novel questions and familiar questions in a novelcontext. They added that the potential for an appeals court to answer thesequestions differently was high because "the path has not been clearlymarked."
"Thesole conviction here was for an unprecedented offense," the filing states."The government sought and obtained a conviction of a CEO who was not inthe relevant mine, during the relevant period, for an alleged conspiracy tocommit willful violations of unspecified safety regulations at that mine. Theonly witness who could establish the conspiracy testified that there was noconspiracy. The government based its case on an 'understanding' and on evidenceabout production targets, staffing levels and budgets."
Blankenshiphas been free since posting a $5 million bond ahead of the trial. That bond waslater lowered to $1 million after he was convicted on just the misdemeanorcharge.
Underthe original charges, Blankenship faced up to three decades imprisonment.Despite now only facing up to a year imprisonment on the charges, Hissam saidhe does not get the sense the government regrets the considerable resourcesthat had to be expended in the expansive investigation leading to hisconviction.
Hissamsaid that while Blankenship may have been the "pinnacle" forprosecutors when it came to individuals involved, the prosecution has securedother victories as well. In addition to convicting other members of managementat Massey, it also secured a $209.3 million non-prosecution with after itbought Massey.
Hesaid the deterrent effect of Blankenship's conviction should stronglydiscourage operators from knowingly running mines unsafely. However, given thecurrent state of the industry, he said that impact may be less than what it mayhave been a few years ago.
"Ithink the impact of this case has been maybe not as dramatic as some peoplethought simply because the industry is struggling to survive," Hissamsaid. "To me, five years ago, shortly after it happened a successfulprosecution like this would have had a major impact on the industry in CentralAppalachia. It just seems to me the biggest focus of the industry now is onpure survival."
Alphahas a pending claim for restitution,but both the defense and prosecutors have requested a separate hearing on thatmatter.
Thecase is United States of America v. DonBlankenship (5:14-cr-00244) in the U.S. District Court for the SouthernDistrict of West Virginia.