Former Massey Energy Co. CEO Don Blankenship is invoking his Fifth Amendment right against self incrimination to resist disclosing financial information to court officials before he's sentenced.
Blankenship is refusing to turn over information pertaining to his financial condition to the U.S. Probation Office, which is preparing a pre-sentencing report that U.S. District Judge Irene Berger will use in the process of deciding an appropriate sentence.
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. He faces up to one year in prison and a fine of up to $250,000.
The information is needed for the court to decide issues relating to jail time and a fine, as well as in determining what sort of criminal restitution Blankenship should be ordered to pay, federal prosecutors have said.
"Defendant stands convicted of an offense against the United States," Assistant U.S. Attorney Gabriel Wohl wrote in a motion last week asking Berger to require Blankenship to turn over the information. "The federal sentencing procedures are not optional."
Attorneys for Blankenship on Friday responded, arguing that the Fifth Amendment privilege applies beyond trial through sentencing.
An appeals court has "held that the government may not compel a defendant to provide financial information to the probation office for purposes of preparing the Pre-Sentence Report if that information might be used against him in a future criminal proceeding," Blankenship's response states.
Blankenship intends to appeal his conviction and faces the possibility of a retrial, the motion states.
"The government may not compel Mr. Blankenship to produce financial information that it might use against him at a retrial or in any other criminal proceedings," Blankenship's attorneys write.
His motion also argues his financial information is irrelevant in the determination of restitution.
Lawyers in the case are arguing over whether Blankenship also should be forced to pay restitution to compensate crime victims for any losses. So far, the only restitution request that's been specifically identified in public court filings is one from Alpha Natural Resources, for nearly $28 million, to recoup costs that Alpha spent on the criminal investigation after it bought Massey in June 2011.
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 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 said in her motion that Blankenship provided "some financial information" before his arraignment in November 2014, but that "without the current financial information the law requires him to provide, there is no way to know whether his financial condition remains the same, or whether he has transferred assets or altered his financial situation in anticipation of fines or restitution."
Reach Kate White at kate.white@wvgazettemail.com, 304-348-1723 or follow @KateLWhite on Twitter.
