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Clock ticking after former coal boss Blankenship files notice of appeal

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Essential Energy Insights - February 2021

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Clock ticking after former coal boss Blankenship files notice of appeal

Facing a sentence of a year in prison and the maximum fineof $250,000 for a misdemeanor conviction, former Massey Energy CEO DonBlankenship may now pivot his attention to appealing his conviction and .

Former Massey Energy CEO Don Blankenship

The former CEO's defense team a notice of appeal to the court's sentencingApril 7 after discussing several avenues they could take to overturn theruling.

In addition to a number of technical appeals, Blankenshipinsists he is innocent of crimes that were prosecuted following aninvestigation of an explosion that killed 29 coal miners at the Upper BigBranch coal mine in West Virginia.

"It's important to me that everyone knows that I am notguilty of a crime," Blankenship said, according to court records publishedby the Charleston (W.Va.) Gazette-Mail. " … The familiesalready know that [the Upper Big Branch miners] were great coal miners. Theyknow that their loved ones are good men and that they did not conspire with meor anyone else to commit violations of law."

According to the court clerk's day book entry in the U.S.District Court for the Southern District of West Virginia, Blankenship wasreleased on a prior bond and allowed to self-report to serve his sentence. Amotion that he made to remain free while an appeal was pending was denied.

Judge Irene Berger, who also sentenced Blankenship to a yearof supervised release following his one-year imprisonment sentence, toldBlankenship to pay a fine of $250,000, due immediately. Berger said Blankenshipwas found to have abused the trust of Massey Energy's shareholders, officersand directors and employees.

"Mining has carried the State of West Virginia forgenerations, as you well know," Berger said. "Each day and each shiftthat miners don their hats and boots and proudly go underground generallywithout any trepidation to make a living for themselves and for their families,they necessarily rely on owners and operators and administrators of these minesto provide a safe workplace. Safety simply has to be paramount."

Berger further admonished Blankenship for creating acorporate culture of profitability over safety. She said that given his historyof rising through the coal company ranks, Blankenship had to know the "vitalimportance" of safety.Berger said she takes no pleasure in imposing the sentence and saidBlankenship, rising from humble roots in the West Virginia coalfields to a topexecutive at a major corporation, "should be someone that we are able totout as a West Virginia success story."

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"Instead of being able to tout you as one of WestVirginia's success stories, however, we are here as a result of your part in adangerous conspiracy," Berger said. " … I believe the sentencepromotes respect for the law. It also reflects the seriousness of the offense.And it serves to protect the public from other such crimes. It also serves toavoid unwarranted sentence disparities, in my opinion, between you and otherswho are similarly situated."

Blankenship was convicted on a misdemeanor count of conspiring to violatemine safety laws, but a jury cleared him on felony brought by the prosecutors.Blankenship has 14 days from the sentence to file his .

Long road to appeal

If the court process moves along at a normal pace,Blankenship will likely serve much of his sentence even if his defense doesmount a successful appeal to the 4th U.S. Circuit Court of Appeals. However,Blankenship still has a few days to ask the appeals court to give him whatBerger denied: the opportunity to avoidimprisonment until a full appeal is heard.

Michael Hissam, apartner with law firm Bailey & Glasser who is also a former assistant U.S.attorney for the Southern District of West Virginia, said he expects thedefense to immediately seek a release pending appeal from the 4th Circuit. Hesaid a ruling on the motion to release pending appeal is hard to predict — theusual course is immediately jailing someone convicted in a federal court. But,he added it is a close call as unless the court moves at a "tremendouslyfast-pace," he will have potentially served as much as half of hissentence.

Hissam saidtypically, it will take about six to eight weeks after a conviction for adefendant to receive a notice to report from the Federal Bureau of Prisons. If amotion to release Blankenship pending appeal is unsuccessful, he would likelynot obtain another chance at relief from his sentence until the fall becausethe court has no scheduled oral arguments until mid-September. It could takeseveral weeks for them to make a ruling after the arguments as well.

In a March 31 filing, Blankenship's attorney's spelled outsome of the questions that would be raised in the appeal.

"The sole conviction here was for an unprecedentedoffense," the defense wrote. "The government sought and obtained aconviction of a CEO who was not in the relevant mine, during the relevantperiod, for an alleged conspiracy to commit willful violations of unspecifiedsafety regulations at that mine. … The court had to address both novel questionsand familiar questions in a novel context. The potential that a court ofappeals will answer questions differently from a trial court is always greaterwhen the path has not been clearly marked."

One question addresses the indictment's allegation of a conspiracyto willfully violate mine safety regulations without specifying the regulationor regulations violated.

"The indictment did not state which of the hundreds offederal regulations containing mine safety standards Mr. Blankenship conspiredto willfully violate," the defense wrote. "The government claimedbefore trial that it could prove this charge without referring to or provingviolation of any particular standards. When the time came for the to decide the case, thegovernment abandoned that theory. …"

Blankenship will also argue Berger used "novel"instructions to the jury in instructing them that "a person withsupervisory authority' willfully violates mining regulations if he 'allows'civil violations by others to continue or acts or fails to act with 'recklessdisregard' for whether his action or inaction will cause a violation." Hisattorneys suggest that the instructions substituted civil liability rules forcriminal liability rules in setting the bar for conspiracy.

The defense argues the instruction allowed Blankenship to befound criminally liable for failing to prevent violations or acting withreckless disregard, when the standard should have been whether or notBlankenship specifically "had agreed to commit criminal (willful)violations of mine safety standard."

"The government was able to argue that failing toprevent civil violations or acting with reckless disregard for civil violationsby a person with supervisory authority is itself a crime," the defensewrote. "This permitted an agreement to fail to prevent or to recklesslydisregard civil violations to substitute for an agreement to commit a willfulcriminal violation."

Blankenship's attorneys also take issue with a one-sentenceexplanation of reasonable doubt they say several appellate courts havedisapproved as unconstitutionally lessening the government's burden of proof.They said the explanation also conflicted with a rule in the 4th Circuit thatcourts are not to explain reasonable doubt to a jury unless they ask.

"Those arepure legal issues that the court of appeals will take a fresh look at,"Hissam said. "I think they are difficult legal issues because he doesn'thave, he's asking the Fourth Circuit to rule on issues of first impression. It'snot as if he has some clear-cut precedent that demonstrates what Judge Bergerdid was incorrect."

There are also numerous evidentiary objections to his conviction. Hissamsaid these court management issues are often "extraordinarily difficult" to succeed as widedeference is given to the judge's decision and the defense would have to provethe decision caused harm.

Blankenship's attorney's criticized the judge's decision todeny the cross examination of inculpatory statements allegedly made byBlankenship and about the substance of numerous safety violations reflected instacks of federal safety citations. Blankenship's attorneys said they shouldhave been allowed to cross examine Christopher Blanchard, former president ofthe group operating Upper Big Branch and alleged co-conspirator grantedimmunity, on new matters brought out in redirect examination.

The defense claims several new, specific issues came uparound an agreement between Blanchard and Blankenship about an agreement tocommit willful mine safety violations. The defense was denied an opportunity toaddress those issues, including Blanchard testifying he did not participate ina conspiracy to violate mine safety laws.

"All of this important testimony about the defendant'sstatements was new to the trial," the defense wrote. "Yet Mr.Blankenship was not permitted to cross-examine Mr. Blanchard to clarify whathappened in the grand jury and that the testimony did not mean that Mr.Blanchard had made an agreement with Mr. Blankenship to willfully violate minesafety regulations."

The defense also objected to the fact the jury was notpermitted to hear an excerpt in which Blankenship expressed disbelief at thefindings of a memo,but also said he would treat them as truth.

"[A]nybody in this company that believes this companyis not — focused on the safety and health of its coal miners needs to bedischarged, because you have to be brain dead," Blankenship is quoted bythe defense.

Blankenship also took issue with Berger's admission ofgovernment arguments insisting his "safety efforts were a sham," butexcluded favorable evidence,including a videotape of a Massey safety rally. They claim the video wasessential to countering the prosecution's assertion Massey and Blankenship'ssafety efforts were insincereand its exclusion was prejudicial.

"The court excluded important exculpatory of a : video of theAug. 1, 2009 kick-off of Massey's company-wide hazard elimination program,which Mr. Blankenship initiated in the heart of the alleged conspiracy,"the defense wrote. "The video captured clear directives from management toover 500 mine supervisors to eliminate hazards, to reduce violations, and notto operate if a mine was out of compliance with the law."

Another example of prejudicial evidence allowance,Blankenship's team argued, was admission of recording of a phone conversation about a safety memo critical of Massey'ssafety culture. They write Blankenship declaring the memo was "bad becauseif there was a fatal [accident] today or if we have one it would be a terribledocument to be in discovery" was admitted, but the statement just beforethat was denied: "I was just surprised that [the author of the memo] feltthat way. … I don't know how anybody at Massey doesn't think I am serious aboutsafety."

Blankenship also claims it was unfair the jury was notallowed to hear another executive say immediately afterwards "that ourdedication to safety is above and beyond any, any, any company that I've dealtwith and I've dealt with most of them."

Blankenship also wants to argue that they should have beenallowed to cross-examine the federal official that issued citations fornon-willful mine safety violations. The defense said this should have beenallowed as the prosecutors were allowed to argue "repeatedly" thatcited violations occurred and were part of a conspiracy to commit willfulviolations.

The April 7 notice of appeal includes no details about theformer CEO's approach to overturning the ruling.

Critics wanted evenmore punishment

Blankenship's sentencing prompted a wave of cheers fromseveral entities April 6, just one day after the six-year anniversary of theUpper Big Branch mine explosion.

Jessica Martinez,acting executive director, National Council for Occupational Safety and Health,called for tougher safety laws to protect workers and families in the wake ofthe sentence. She said a one-year sentence "is hardly enough to make upfor the years and decades of life lost" at Upper Big Branch.

"All too often, these deaths happen when executiveslike Don Blankenship make decisions that put profits and production aheadof worker safety," Martinez said. "The way to change this irresponsiblebehavior is to ensure swift, certain and severe punishment for those who abusetheir authority and put workers' lives at risk."

The U.S. Department of Labor, the branch of government whichmanages the U.S. Mine Safety and Health Administration, which enforces minesafety laws, applauded the sentence, saying it proves "no mine operator isabove the law."

"That said this is a clear case of the punishment notfitting the crime," said U.S. Secretary ofLabor Thomas Perez. "Thissentence is the maximum allowable under the law, but regrettably, the criminalprovisions of the Mine Act are far too weak to truly hold accountable those whoput miners' lives at risk. This administration continues to support efforts inCongress to strengthen those penalties, and we stand ready to work with memberswho believe that no worker should lose their life for a paycheck."

United Mine Workers of America President Cecil Roberts saidit was "outrageous" that the maximum sentence Blankenship faced was ayear. They pointed to "52 people killed at Massey mines while he was CEO,"which includes other mine disasters aside from Upper Big Branch.

"Although this sentence will not begin to make himatone for his crimes, there is a higher court he will answer to someday, and Ihave complete faith that the justice he receives there will be more thanadequate," Roberts said.

Former U.S. Attorney and gubernatorial Booth Goodwin said theinvestigation conducted by his office "certainly" made mines saferand would send a "powerful message that a corrupt corporate executivecannot gamble with workers' lives and get away with it." He also insistedthat Blankenship deserved a "more severe punishment."

Massey was bought by Alpha Natural Resources Inc., which wasrecently denied a$27.8 million restitution claimin the case. Alpha is in the middle of a Chapter 11bankruptcy reorganization. It is seeking to reorganize core assets into asustainable enterprise while preparing its other mines to focus on reclamationefforts.

The case is United Statesof America v. Don Blankenship (5:14-cr-00244).