Former Massey Energy CEO Don Blankenship is facing dozens of additional requests for criminal restitution, but is refusing to provide government officials with financial data needed for his sentencing hearing, according to new court filings this week.
Blankenship is seeking a delay in his sentencing hearing, currently scheduled for April 6, but both sides appear to agree that U.S. District Judge Irene C. Berger should plan a separate hearing to sort out legal arguments and other issues regarding any restitution the judge orders Blankenship to pay.
The new court filings from both sides provide another glimpse into the behind-the-scenes moves that are continuing as Blankenship awaits sentencing after being convicted in December of conspiring to violate mine safety and health standards at Massey's Upper Big Branch Mine, where 29 workers died in an April 2010 explosion.
Blankenship faces up to one year in prison and a fine of up to $250,000. Lawyers in the case are currently arguing over whether Blankenship should also be forced to pay restitution to compensate crime victims for any losses.
Defense lawyers are trying to convince Berger to dismiss nearly $28 million in restitution that the government has indicated it will support to reimburse Alpha Natural Resources for money spent on the government investigation following the Upper Big Branch Mine Disaster. Alpha, which bought Massey after the mine explosion, is also seeking to recoup the legal fees it paid for at least seven former Massey employees and for more than $10 million in federal safety fines.
As part of a response filed Monday evening, Assistant U.S. Attorney Gabriele Wohl said that a decision on restitution is premature at this point, because restitution claims haven't been formally filed yet. Prosecutors indicated in a letter to the U.S. Probation Office that Alpha intends to seek restitution, but those claims won't be outlined officially until probation officer Jeff Gwinn completes a presentence report that is due to the court on March 21.
In federal court, judge's decisions on sentencing in criminal cases are based at least in part on a review of lengthy background reports on defendants that are prepared by probation officers. Those reports are kept confidential, except when portions of them find their way into separate court filings or during back-and-forth between lawyers and the judge at sentencing hearings. Judges also use sentencing recommendations that are based on the advisory U.S. Sentencing Guidelines.
Wohl also said that Blankenship has "refused to comply with his obligations" under federal sentencing law "to submit to the probation officer a description of his financial resources, including a list of his assets."
Without Blankenship's financial disclosure, prosecutors cannot "make a complete argument" about restitution and Berger is prevented from "conducting a meaningful and holistic review of restitution claims."
Also, Wohl said that a separate evidentiary hearing on potential restitution is warranted in Blankenship's case. Under the law, such hearings can take place anytime up to 90 days following the sentencing hearing.
On Tuesday, Blankenship's lawyers filed a new motion to ask that Berger either delay the sentencing or schedule a separate hearing to handle the restitution issues. The defense argues that it needs more time to gather information and prepare to respond to requests for restitution.
In that court filing, Blankenship lawyer Blair Brown said that the defense learned on Monday from the probation office that it had received "dozens of additional claims [for restitution] in response to a mailing to potential victims." Brown said defense lawyers had not yet seen those claims.
Earlier, defense lawyers had said in a court filing that, except for Alpha's claim, it was their "understanding" that prosecutors were not seeking restitution for "any other person or entity or for any other harm" related to the Upper Big Branch explosion. Blankenship was not charged with causing the explosion.
Lead prosecutor Steve Ruby has said previously that everyone who worked in the Upper Big Branch Mine during the indictment period - from January 2008 through April 2010 - is a victim of Blankenship's conspiracy to violate safety and health standards. Under the law, where victims are deceased, the victims' estates or family members can assume the victim's rights.
Ruby has declined to comment on whether the government would be supporting requests for restitution other than the one expected from Alpha.
Reach Ken Ward Jr. at kward@wvgazettemail.com, 304-348-1702 or follow @kenwardjr on Twitter.