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Blankenship attorney's defend against prosecution seeking maximum punishment

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Essential Energy Insights - January 2021


Blankenship attorney's defend against prosecution seeking maximum punishment

Prosecutorsare seeking a maximum jail sentence and fine for the now-convicted former CEOof Massey Energy Don Blankenship, saying his actions amounted to "tramplingon laws that protect human life."

Alsofiled March 28, the former coal boss' attorneys filed a report defending him asa man that "cares deeply about his family, his community, and the peoplewho worked for him." They submitted multiple exhibits, including lettersfrom family, friends and community members supporting Blankenship's characteras he heads into sentencing on one misdemeanor count of conspiring to violatemine safety laws.

Blankenshipwas cleared of felonycharges the prosecution sought following the investigation of the April 2010 explosion of the UpperBig Branch coal mine in West Virginia that resulted in the deaths of 29 miners.The prosecution's sentencing memo starts with a list of mining disasters inmaking the case that anything less than maximum punishment for Blankenshipwould "undermine the basic requirements of sentencing" as the maximumyear in prison "is paltry enough."

"Wehave known for a very long time how to prevent it," the filing states. "And,sadly, we have known for a very long time that some mine operators will ignorethese hard learned lessons until the law compels them to take notice. The minesafety laws, it is said with good reason, are written in coal miners' blood."

Prosecutorssaid Blankenship "knew full well the awful risks, dramatized time andagain in ghastly fashion over the years, that he was taking by flouting themine safety laws at Upper Big Branch."

"Solet us dispense with the defense's obfuscation and double talk and say plainlywhat Don Blankenship did: He made a conscious, cold-blooded decision to gamblewith the lives of the men and women who worked for him," the filingstates. "How does one take the measure of such a crime? Defendant was thechief executive of one of America's largest coal companies — amultibillion-dollar behemoth with its shares traded on the New York StockExchange, a fleet of private aircraft, luxurious board meetings at posh resortsaround the country, and vast resources to support its mining operations. He hadevery opportunity to run UBB safely and legally."

Insteadof taking action, prosecutors allege, he "actively conspired" tobreak mine safety laws. They called his actions "monstrous" and awillful endangerment of his employees to "further fatten his bank account."They add that under any fair assessment, the prosecution believes only asentence of many years would reflect the seriousness of Blankenship's convictedcrimes.

"Onedoubts that Congress contemplated a set of facts like these when it imposedthat one-year maximum: a CEO whose conspiracy led to near-constant safetyviolations, thousands of them, certainly, based on the testimony of the minerswho worked at UBB," prosecutors wrote. "A year is woefullyinsufficient to comply with the purposes of the statutory section that governsthis proceeding. But under the law on the books, it is the best the court cando."

Prosecutorsare asking the judge to order Blankenship serve a year in prison and pay a$250,000 fine. According to prosecutors, certain enhancements added toassessing Blankenship's sentencing assessment, including obstruction ofjustice, abuse of trust and his role as a leader of criminal activity, raisehis sentencing guideline to 15 to 21 months' imprisonment.

Notingthey did not contest he could be a "blunt and a hard taskmaster,"Blankenship's defense argued against maximum imprisonment and fines andsubmitted over 100 letters from those supporting Blankenship. Some includedreferences to Blankenship's philanthropy and family while others saidBlankenship was dedicated to improving mine safety.

"Thepeople who wrote the letters know Don Blankenship," the defense wrote. "Notall of them like him, but not one of them, indeed not a single witness attrial, provides any support for the notion that he was ruthlessly committed tomoney for himself at the expense of the safety of the people who worked forhim."

Thefiling references a survey of Performance Coal employees, the subsidiary thatoperated Upper Big Branch, finding two-thirds of the miners of Upper Big Branchagreed safety was a priority at Massey. The filing references multiple minerswho said things such as "UBB was one of the safest mines I was everemployed at" and that they were never denied anything that promoted safetyunderground.

"Iwas the 'block' chief electrician at the UBB Mine, in charge of both thetailgate section and the head gate section … I have two children and would havetaken them in that mine at any time … Massey (UBB) was the safest run mine thatI have ever worked in in my lifetime," wrote Rick Nicolau in one letter,according to exhibits from the defense.

Inarguing for a minimum sentence, the defense said there is no reason to believeBlankenship would reoffend. As for deterring other mine executives, the defensesaid the conviction, fine and restrictions of probation has been "amplewarning" to others that mine safety laws believed by the government to bewillful will be criminally prosecuted.

Sentencingguidelines suggest a $40,000 fine, but prosecutors are asking for the maximumunder law, which they said for a man as wealthy as Blankenship may not be that big of adifference, but the best they could get under statute.

"[Blankenship]is — there is no other way to put it — immensely wealthy," the prosecutors'filing states. "A fine of $40,000 or less probably would strike him, andothers, as comical. It would promote mockery of the law, not respect. It woulddo nothing whatsoever to deter violations of safety laws by mine executives."

MasseyEnergy was purchased by AlphaNatural Resources Inc. Currently in bankruptcy, Alpha is seekingrestitution fromBlankenship. According to the sentencing memorandum from prosecutors, theamount is being determined, but previous documents suggested consideration of aclaim of $27.8million.

Thecase is United States of America v. DonBlankenship (5:14-cr-00244) in the U.S. District Court for the SouthernDistrict of West Virginia.