As the public tries to understand how six former Freedom Industries officials received a total of 60 days in jail for contaminating the drinking water for 300,000 people (see here and here for some of my efforts at explaining), some folks have naturally turned their attention to the upcoming sentencing in another of former U.S. Attorney Booth Goodwin’s major white-collar criminal cases
It’s hard not to wonder now whether former Massey Energy CEO Don Blankenship — to borrow a phrase that U.S. District Judge Thomas E. Johnston has now made famous — is “hardly a criminal.”
Like former Freedom officials Gary Southern, Dennis Farrell, William Tis, Charles Herzing, Michael Burdette and Robert Reynolds, Blankenship stands guilty of a crime that the law books list as a “misdemeanor.” A minor offense. A lesser crime (for more on whether crimes that put coal miner safety and health at risk deserve to be felonies, read this).
So when U.S. District Judge Irene Berger sentences Blankenship on April 6 — the day after the sixth anniversary of the Upper Big Branch Mine Disaster — will she let him off with what Blankenship’s critics (and certainly the families of the 29 miners who died at UBB) would consider a slap on the wrist?
Well, it’s true that Judge Berger’s hands are in some ways tied. Congress has made willfully violating a federal mine safety and health standard punishable by only up to one year in prison. And because Blankenship’s jury found him guilty only of conspiracy to willfully violate such standards, his conspiracy crime — normally a felony — is punishable with a maximum of one year in prison. Moreover, the Blankenship jury found him not guilty of the other, felony charges brought against him.
And while it’s true that Judge Berger has already sent four former Massey officials to prison for not insignificant periods of time, those four individuals (former Massey miner Thomas Harrah, UBB security chief Hughie Elbert Stover, UBB mine superintendent Gary May and former Massey unit president David Hughart) all were convicted by a jury or pleaded guilty to felony offenses.
Still, there some significant differences between the Blankenship and the Freedom cases, and they are worth understanding if you’re wondering how the next big sentencing in federal court here in Charleston might turn out. I’ve looked into this a little bit in the last day or so, and I asked Assistant U.S. Attorney Steve Ruby and defense lawyer Bill Taylor for their thoughts. I haven’t heard back from Mr. Taylor, but I’ll share some of AUSA Ruby’s comments below.
First, Blankenship was found guilty by the jury of conspiracy to willfully violate mandatory mine safety and health violations. This is quite different from the negligence and strict liability crimes involved in the water pollution cases against Freedom officials. As Ruby explained:
As you point out, Blankenship was convicted of conspiring to commit willful mine safety violations. The jury also found that his participation in the conspiracy was willful — a second level of willful misconduct, beyond the willfulness of the violations themselves. Willfulness is the highest standard of criminal intent that exists in the law. The difference between the willfulness of Blankenship’s actions, on the one hand, and the negligence and strict liability involved [in] the Freedom convictions, on the other, does distinguish the cases and would weigh in favor of a more severe sentence here.
Second, the federal government has already indicated in a court filing that it believes the advisory guideline sentencing range for Blankenship is 10 to 16 months (generally speaking, when a guidelines calculation produces a sentence which, like this one, ranges above the statutory maximum, that maximum becomes the guidelines range). Prosecutors indicated they believe there are factors that could push the guidelines range even higher, but they won’t yet explain their thinking on that. Ruby said:
We believe that the guidelines range ultimately could be some months higher than the 10- to 16-month range we discussed in our filing, but any difference would likely be a matter only of months, not years. We will decline at this time to discuss the specific enhancement that might increase the range. Given that the minimum range should be 10 to 16 months and the statutory maximum, unfortunately, is a year, we would not expect any difference to have much practical impact.
Third, make no mistake: Prosecutors are going to ask Judge Berger to max-out Blankenship. According to Ruby:
We intend to seek a year in prison-which unfortunately is the maximum that federal law currently allows for the crime of conspiring against mine safety standards-as well as the maximum possible fine, which appears to be $250,000. We also will ask the court to impose a substantial order of restitution.
(Regarding restitution, it’s clear there is some hard work going into how that could be used in the Blankenship case. Ruby said, “We intend to seek substantial restitution but would prefer to reserve comment on the details of our position until closer to sentencing.”)
Fourth, don’t look for the prosecution to soften its thinking on any of this. I asked Ruby if he was concerned that Judge Berger might use the fact that Blankenship’s conviction was a misdemeanor to conclude that he is “hardly a criminal” and Ruby responded:
We would not presume to speak for Judge Berger or predict how she will view the case. But our view is that the label “misdemeanor” does not begin to capture the seriousness of what this defendant did. For the chief executive officer of a coal company to conspire to willfully violate the mine safety laws that protect his workers is not just a crime, it’s an egregious one, regardless of the term of imprisonment that the statute allows.
What else? Well, look for the victims of Blankenship’s crimes to potentially play a larger role in the prosecution’s strategy at sentencing than they did in the Freedom cases. Ruby explained:
The offense of conviction is conspiracy to violate mine safety standards at UBB over a period exceeding two years, from January 2008 through April 2010. Our view is that everyone who worked in the mine during that time period is a victim of the conspiracy. Where a victim is deceased, the Crime Victims’ Rights Act provides for the victim’s estate, family members, or other persons appointed by the court to assume the victim’s rights. 18 U.S.C. s. 3771(e). We also believe that Alpha Natural Resources, the successor to Massey Energy Company, is a victim of the defendant’s crime.
We know that there are representatives of victims who wish to address the court, and we believe that what they have to say is essential information for the court to consider. We will ask that they be heard at sentencing and will provide whatever other assistance we can in their exercise of that right.
And remember that Judge Berger has the advantage of having been through not just the Blankenship trial, but the trial of Stover, the UBB security chief, and sentencing hearings in three other UBB cases, as well as civil proceedings about the mine disaster. Still, there could be additional witnesses and evidence, something that was mostly absent from the Freedom hearings. Ruby says:
With respect to facts that should be considered at sentencing, the trial record in this case is lengthy, as you know, and we believe it already contains the evidence to support most of the factual findings that the court will need to make. But if there remain disputed issues at sentencing that were not adequately addressed at trial (restitution might be an example), then we will, of course, introduce additional evidence on those.