IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
PARTIAL TRANSCRIPT OF PROCEEDINGS

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UNITED STATES OF AMERICA,
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vs.
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DONALD L. BLANKENSHIP,
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Defendant.
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CRIMINAL ACTION
NO. 5:14-CR-00244
April 6, 2016

SENTENCING HEARING
BEFORE THE HONORABLE IRENE C. BERGER
UNITED STATES DISTRICT JUDGE
APPEARANCES:
For the United States:

MR. STEVEN R. RUBY
MS. GABRIELE WOHL
U.S. Attorney's Office
P.O. Box 1713
Charleston, WV 25326-1713
MR. R. GREGORY MCVEY
U.S. Attorney's Office
P.O. Box 1239
Huntington, WV 25714-1239

 APPEARANCES (Continued):

For the Defendant:

MR. WILLIAM W. TAYLOR, III
MR. BLAIR GERARD BROWN
MR. ERIC R. DELINSKY
Zuckerman Spaeder
Suite 1000
1800 M Street, NW
Washington, DC 20036-5807
MR. JAMES A. WALLS
Spilman Thomas & Battle
P.O. Box 273
Charleston, WV 25321-0273

Court Reporter:

Lisa A. Cook, RPR-RMR-CRR-FCRR
(304)347-3198
lisa_cook@wvsd.uscourts.gov

Proceedings recorded by mechanical stenography; transcript
produced by computer.

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P R O C E E D I N G S

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THE COURT:

All right.

Mr. Blankenship, if you

all would rise, please.
After giving careful consideration to the trial

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evidence in this case, the Pre-Sentence Investigation

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Report, the parties' sentencing memoranda, the statements

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that have been made here today, and giving consideration to

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the 3553(a) factors that I spoke to you about earlier, it's

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the judgment of this Court, Mr. Blankenship, that you be

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committed to the custody of the Bureau of Prisons for a term

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of 12 months.

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I further order that you serve a term of supervised
release of one year.
Within 72 hours of your release it's ordered that you

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report in person to the United States Probation Office in

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the district in which you are released.

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While you're on supervised release, Mr. Blankenship,

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you must not commit another federal, state, or local crime.

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You must not possess a firearm or other dangerous device.

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And although there's no indication of this whatsoever in the

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record, you also must not unlawfully possess a controlled

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substance.

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You must comply with the standard terms and conditions
of supervision as recommended by the United States

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Sentencing Commission and as adopted by this Court.
And I am not going to require as a standard condition

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that you participate in a program of testing, counseling,

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and treatment for drug and alcohol abuse as there is no

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indication in this record for the need for that.

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Further, I'm ordering, Mr. Blankenship, that you comply

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with the standard conditions of supervision adopted here

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within the Southern District of West Virginia in Rule 32.3

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of the Rules of Criminal Procedure.

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There is nothing, again, in this Pre-Sentence Report to

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indicate any substance abuse by you.

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suspend the requirement that the defendant submit to a drug

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test as a condition of supervised release.

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I am going to order a fine.

And, therefore, I

I will give the basis of

my ruling here shortly.
I order that you pay a fine in the amount of $250,000

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due immediately.

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date, I order that interest be applied.

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If not paid within 15 days of today's

If not paid immediately, the Court orders as a

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condition of supervised release that you provide the

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probation officer access to any requested personal or

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business related financial information; that you be

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prohibited from incurring new credit charges or opening

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additional lines of credit without approval of the probation

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officer until monetary assessments have been satisfied.

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I further order as a condition that you apply all

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monies received from income tax returns, lottery winnings,

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judgments, and any other anticipated or unanticipated

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financial gains to any outstanding court-imposed monetary

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obligations.

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I further order that you pay the fine during your term

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of incarceration through participation in the Bureau of

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Prisons' Inmate Financial Responsibility Program if it has

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not been paid immediately in installments of -- quarterly

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installments of $25 with any balance to be paid through

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monthly installments of not less than $25,000 during your

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term of supervised release with the first installment being

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paid within 10 days of your release from incarceration.

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As I've indicated previously, I make no order of

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restitution.

I do order that you pay a special assessment

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of $25 for having been convicted of an offense.

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Mr. Blankenship, I've given great consideration to this

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sentence, and I find that the sentence of 12 months followed

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by one year of supervised release and a variant fine of

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$250,000 is reasonable.

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The jury found in its deliberation, after listening to

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evidence for a period of six weeks, that you had conspired

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with others of Massey Energy to willfully violate mine

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safety and health laws.

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In so doing, I have found, and I find it to be fact,

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that you abused the trust of the Massey Energy shareholders,

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your fellow officers and directors and, most importantly,

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the trust of the employees who looked to you for leadership

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and for a safe workplace.

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Mining has carried the State of West Virginia for

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generations, as you well know.

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miners don their hats and boots and proudly go underground

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generally without any trepidation to make a living for

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themselves and for their families, they necessarily rely on

Each day and each shift that

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owners and operators and administrators of these mines to

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provide a safe workplace.

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paramount.

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Safety simply has to be

Although there was evidence presented of an S-1, P-2

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program, or a safety first and production second program at

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the mine, it was not borne out by the testimony that we

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heard presented during the course of the trial.

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By putting profitability of the company ahead of the

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safety of your employees, you, Mr. Blankenship, created a

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culture of noncompliance at Upper Big Branch where your

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subordinates accepted and, in fact, encouraged unsafe

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working conditions in order to reach profitability and

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production targets.

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The legacy of that conduct was visible in the testimony

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of the miners from Upper Big Branch in this case who

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described dire working conditions where their safety was

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routinely compromised and preventable hazards were

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tolerated.

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There was testimony that I recall that the miners had

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to hide their efforts at safety, or that they had to hide

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non-production time where they were making efforts at

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safety.

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As Chief Executive Officer, you were ultimately

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responsible for ensuring that these miners went to work each

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day in mines which followed MSHA's safety and health

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standards.

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had to be aware, and having risen through the ranks of the

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company you had to be aware of the vital importance of

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safety in the coal industry.

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Having grown up in West Virginia coalfields, you

I take no pleasure in imposing this sentence here

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today, Mr. Blankenship.

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be warranted and I believe it to be appropriate, there's no

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pleasure in my imposing it.

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bit -- a good bit of consideration to this case, you should

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be someone that we are able to tout as a West Virginia

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success story.

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Although I believe the sentence to

Quite frankly, having given a

You were raised by a single mother in southern West

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Virginia.

You attended public schools in southern West

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Virginia, attended Marshall University where you obtained a

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degree.

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Massey to become its Chief Executive Officer.

You then became a CPA and rose through the ranks of
And you've

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given back to your community.
Instead of being able to tout you as one of West

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Virginia's success stories, however, we are here as a result

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of your part in a dangerous conspiracy.

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I've considered your lack of criminal history, Mr.

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Blankenship.

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letters written on your behalf.

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submitted 110, and there were four or five which came

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directly to me that were not included in the batch that was

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I have reviewed in excess of 100 character
I think your lawyer

sent to me by the lawyers.

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Some of those who wrote letters flatly disagree with

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the jury's verdict based upon their opinions of your work

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ethic and your commitment to safety.

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their opinion that you were, in fact, committed to safety,

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while others tout the community programs for children and

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others you initiated including the Christmas Extravaganza

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which a number of them mentioned for underprivileged

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children, and of scholarships that you initiated.

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Some simply express

Other writers knew you personally from childhood.

And

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still others had personal stories of how you helped when

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they went through personal health or other crises.

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given consideration to all of that.

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I've

In my consideration of the 3553(a) factors, the direct

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and circumstantial evidence in this case, I disagree with

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your lawyer about the status of the evidence as it relates

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to a conspiracy.

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The nature of conspiracy cases is that oftentimes

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there's not direct evidence of some express agreement and,

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more often than not, the evidence is borne out through

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circumstantial evidence.

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status of that.

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He and I simply disagree on the

But having considered it, I have considered the length

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of time that the conspiracy lasted.

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that during that time, the risk of injury and death was

I've also considered

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present every single day for employees in the mines.

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considered the pervasiveness of that conspiracy.

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I've

Neither of those issues is addressed in the guideline

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range.

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conduct, that the fine range under the guidelines is simply

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not sufficient in this case to meet the goals of sentencing

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and, therefore, have imposed a fine above that applicable

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advisory guideline range at the statutory maximum.

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I have found, given the nature and extent of the

Specifically, in my consideration of just punishment

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for the serious crime of conspiring to willfully violate

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mine safety and health standards, of deterring you and

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others from engaging in similar conduct, and promoting

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respect for the law, I find a sentence of one year of

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incarceration coupled with that maximum fine is sufficient

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and, yet, not greater than necessary to meet the goals of

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sentencing.

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I also find specifically, Mr. Blankenship, that the

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sentence reflects the seriousness of the offense.

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want to be clear that this Court has considered the evidence

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at trial.

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And I

I want to place on the record because it was brought

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out during the course of arguments that I've not even seen a

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60 Minutes production about this case.

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the impact of the offense, and giving consideration to the

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3553(a) factors, tells me that this sentence is appropriate

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But the evidence and

and that it's warranted.

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Again, I believe the sentence promotes respect for the

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law.

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it serves to protect the public from other such crimes.

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also serves to avoid unwarranted sentence disparities, in my

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opinion, between you and others who are similarly situated.

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It also reflects the seriousness of the offense.

The crime is serious.

And
It

There's been discussion here

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about the acquittal of felony offenses and your conviction

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of a misdemeanor.

Those of us in the legal community put

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tags on offenses.

Congress puts tags on offenses.

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But when we seek to sentence someone, we sentence based

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on the conduct, which I find to be very serious not only in

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its commission but in its potential impact in terms of risk

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in this particular case.

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appropriate given those 3553(a) factors.

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And, again, I find it to be

You have a right to appeal this Court's sentence, Mr.

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Blankenship.

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notice of your intent to do so with the clerk within 14 days

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of the clerk's entry of my order of sentence and judgment.

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If you fail to file it during that time period, your right

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to appeal will expire.

If you want to appeal, you must file written

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Do you understand that?

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THE DEFENDANT:

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THE COURT:

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Yes, ma'am.

If you want to appeal and if the Court

finds for some reason -- I'm required to say this to you --

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that you don't have the money to procure transcripts or

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other documents necessary to effect your appeal or to pay

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for the services of an attorney, those costs will be borne

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by the United States.

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Do you also understand that?

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THE DEFENDANT:

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THE COURT:

Yes.

Your sentence is a final judgment.

I

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can't release you from prison or reduce or modify your

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sentence unless the Director of the Bureau of Prisons makes

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such a request or unless the Government files a motion

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pursuant to Rule 35 for substantial assistance.

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So letters written to me asking me to change, reduce,

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or modify it would be of no consequence.

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Do you understand that as well?

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THE DEFENDANT:

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THE COURT:

Yes.

Because you were released on a surety

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bond pending sentencing, the Bail Reform Act permits me to

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allow you to surrender voluntarily if there's clear and

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convincing evidence that you're not likely to flee and not

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likely to pose a danger to any other person or to the

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community if released.

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I find, Mr. Blankenship, that you should be permitted

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to report voluntarily based on your conduct while on bond

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and the financial incentive to surrender, as well as the

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release status report and, most importantly, my finding that

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your conduct while on bond for the past year and a half

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constitutes clear and convincing evidence that you're not

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likely to flee and not likely to cause harm to any other

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person.

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Accordingly, I order that you be permitted to surrender

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voluntarily at the institution designated by the Bureau of

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Prisons as notified by the United States Marshal, and that

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you remain released on the previously executed

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one-million-dollar surety bond subject to the conditions set

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forth in the prior order.

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I have reviewed the defendant's motion for continued

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release pending appeal, the Government's response, as well

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as the reply which was filed somewhat late yesterday.

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after careful consideration of the arguments in those

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documents, I order that the motion be denied and that you

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report when ordered to do so.

And

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I preserve your, Mr. Blankenship, objection and
exception to my denying that particular motion.
Before I conclude the hearing, Mr. Blankenship, I want
to advise you of a couple of things.
First, if you knowingly fail to report as ordered, I

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can impose an additional sentence up to one year and an

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additional fine up to $250,000.

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If you commit any offense while you're awaiting

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voluntary surrender, if it's a felony I can impose a

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sentence up to 10 years.

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impose a sentence up to one year.

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that sentence would run consecutively to the sentence I've

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imposed today, not concurrently with that sentence.

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If it's a misdemeanor, I can
And in either situation,

Do you understand that as well?
THE DEFENDANT:

Yes.
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I, Lisa A. Cook, Official Reporter of the United

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States District Court for the Southern District of West

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Virginia, do hereby certify that the foregoing is a true and

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correct transcript, to the best of my ability, from the

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record of proceedings in the above-entitled matter.

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s\Lisa A. Cook
Reporter

April 6, 2016
Date