Judge won't delay Upper Big Branch sentencing
CHARLESTON, W.Va. -- A federal judge has refused to give prosecutors more time to obtain information from a former Upper Big Branch Mine superintendent before the man is sentenced for his role in plotting to skirt safety rules at the Raleigh County operation.
U.S. District Judge Irene Berger ruled that prosecutors "failed to state good cause" for their requested delay in the sentencing of Gary May, who pleaded guilty and is cooperating in the ongoing investigation of the April 2010 explosion that killed 29 Massey Energy Co. miners.
May will be sentenced Jan. 17 in federal court in Beckley. He faces five years in prison after pleading guilty to one felony charge.
U.S. Attorney Booth Goodwin said his office "will certainly be ready to proceed" with the sentencing.
"However, the denial of the continuance is regrettable because, as we stated in our motion, there is a risk to the investigation from the sentencing proceeding itself," Goodwin said. "We will certainly do our very best to minimize that risk as the matter proceeds as ordered."
In a court filing, Assistant U.S. Attorney Steve Ruby had asked for a four-month delay because May "continues to provide important cooperation in an ongoing criminal investigation."
Berger already had twice postponed May's sentencing because prosecutors said they needed more time to get information from him. May is cooperating as part of a plea deal.
"Notable progress has been made in the investigation since this sentencing proceeding was last continued," Ruby wrote. "The further continuance requested here will allow that progress to be extended and will avoid any risk to the investigation from the sentencing proceeding itself."
May pleaded guilty to plotting "with others known and unknown" to put coal production ahead of worker safety and to conceal the resulting hazards on numerous occasions at Upper Big Branch. May admitted that he took part in a scheme to provide advance warning of government inspections and then hide or correct violations before federal agents could make it into working sections of the mine.
The day before May's sentencing, on Jan. 16, Berger will hold a plea hearing for longtime Massey official David C. Hughart, who also is cooperating in the investigation of Massey safety practices. Hughart has agreed to plead guilty to two criminal charges and provide testimony about a decade-long conspiracy to defy safety laws and hide the resulting conditions from government inspectors.
Reach Ken Ward Jr. at email@example.com or 304-348-1702.