Federal prosecutors are asking a judge to order former Massey Energy Co. CEO Don Blankenship to turn over details about his financial assets to court officials prior to Blankenship's scheduled sentencing next month.
In a motion filed Friday with U.S. District Judge Irene Berger, prosecutors said Blankenship's defense attorneys had advised him to refuse to provide "any information pertaining to his financial condition" to the U.S. Probation Office, which is preparing a pre-sentencing report that Berger will use in the process of deciding on an appropriate sentence.
Assistant U.S. Attorney Gabriel Wohl said in the motion that 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.
"Defendant stands convicted of an offense against the United States," Wohl wrote. "The federal sentencing procedures are not optional."
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.
Berger has the sentencing scheduled for April 6, the day after the sixth anniversary of the mine disaster. The judge has not yet ruled on a request from both sides to schedule a separate hearing to consider and rule on restitution requests.
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 the new 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."
In a court filing that was not specifically responding to the government's new motion, Blankenship defense lawyer Blair Brown said prosecutors are "flat wrong" when they complain that the financial information is needed to decide if Blankenship must pay restitution to Alpha.
Brown also argues that the Fifth Amendment to the U.S. Constitution "protects Mr. Blankenship's right to remain silent at sentencing, just as it did at trial."
Reach Ken Ward Jr. at kward@wvgazettemail.com, 304-348-1702 or follow @kenwardjr on Twitter.