Unless an appeals court steps in, former Massey Energy Co. CEO Don Blankenship is scheduled to report to federal prison in three weeks, prosecutors disclosed in a new court filing.
Blankenship is currently required to "surrender to federal custody" on May 12, according to information provided to the parties and included in a court filing from Assistant U.S. Attorney Steve Ruby.
The court filing did not say where Blankenship would be serving his time. Such assignments are made by the U.S. Bureau of Prisons. During his sentencing hearing on April 6, Blankenship's lawyers did not publicly ask that any specific facility or location be considered.
U.S. District Judge Irene Berger sentenced Blankenship to serve one year in prison and pay a $250,000 fine - which Blankenship has already paid - after he was convicted of conspiring to violate federal mine safety standards. He is appealing his conviction to the 4th U.S. Circuit Court of Appeals, in Richmond, Virginia.
Blankenship has asked the 4th Circuit to allow him to remain free pending appeal, but the court has not ruled on that issue yet.
Ruby revealed the prison-report date for Blankenship in a court filing that sought more time for government lawyers to respond to Blankenship's legal brief arguing that he should be allowed to remain free on $1 million bail pending a full consideration and decision by the 4th Circuit on the appeal of his conviction. Ruby said he needs more time because the defense lawyers had filed an "unusually long motion."
Last week, Blankenship's lawyers filed a 33-page legal brief. They said that they needed more than the 20 pages normally allowed to "provide factual background and context important to an assessment of the merits" and to demonstrate that the trial errors the defense argues Berger made were not harmless but were significant enough to warrant Blankenship remaining free pending appeal.
Ruby requested a three-day extension from his original filing deadline on Wednesday. Approval would actually give him until Monday, because the three days would take the deadline to Saturday, and the court moves deadlines that fall on a weekend to the next business day.
"Accordingly, the requested three-day extension would leave approximately two-and-a-half weeks between the filing of the United States' response and the date set for defendant's surrender," Ruby wrote. "This being the case, there is no emergency that would preclude the United States' request for a brief extension to respond to Defendant's unusually long motion."
Ruby said that if the 4th Circuit would not give him an extension of time, the court should order Blankenship's lawyers to comply with the 20-page limit for legal briefs.
"There being no emergency, it would be needlessly unfair to permit Defendant to exceed so substantially the page limit for a motion unless the United States is permitted a brief period of additional time to respond to the longer motion," Ruby wrote.
In a response filed late Wednesday, Blankenship's lawyers defended the length of their original filing with the 4th Circuit.
"The motion for release itself demonstrates that space is not wasted in presenting important questions that arose from a six-week trial," they wrote.
Reach Ken Ward Jr. at kward@wvgazettemail.com, 304-348-1702 or follow @kenwardjr on Twitter.