MORGANTOWN, W.Va. - A former superintendent at West Virginia's Upper Big Branch mine wants a judge to sentence him to home confinement or at least reduce his prison time when he pleads to a federal conspiracy charge next week.
Gary May is cooperating with prosecutors in their continuing criminal investigation of the April 2010 explosion that killed 29 miners at the former Massey Energy operation near Montcoal.
He's set to enter a plea Jan. 17 in U.S. District Court on charges he defrauded the federal government through his actions at the mine, which included disabling a methane gas monitor and falsifying records.
Defense attorney Tim Carrico argued in court documents Monday that May is "deeply sorry" about the deaths but said there does not appear to be a direct link between his conduct and the worst U.S. coal mine disaster in four decades.
Carrico wants Judge Irene Berger to impose less than the 15- to 21-month sentence that federal guidelines recommend. Alternatively, he asked that May be sent to a prison near his home in Bloomingrose.
Assistant U.S. Attorney Steve Ruby is pushing for a sentence at the high end of the federal guidelines because those recommendations don't account for the risk that May's actions created to miners' lives. He also asked Berger to consider a sentence above the recommended range.
"Common sense dictates that when a defendant risks other people's lives and health, that fact must be accounted for in fashioning his sentence," Ruby argued. "To treat this conspiracy, with its risk of death or injury to others, like routine conspiracies whose risk is only financial would understate the seriousness of this offense."
May's cooperation has been valuable so far, Ruby wrote, and it's possible that when the investigation is finished, it "will warrant a motion for downward departure."
"At this stage, though," he said, "the value of the defendant's cooperation cannot be properly assessed" for such an argument.
So far, the investigation has led to two other criminal prosecutions.
Former security chief Hughie Elbert Stover is in prison in Kentucky, convicted of lying to investigators and ordering a subordinate to destroy documents during the investigation.
A former president of another Massey coal company, meanwhile, is also cooperating with prosecutors.
Former White Buck Coal Co. President David C. Hughart is set to enter a plea to two federal conspiracy charges Jan. 16, the day before May's sentencing.
Hughart is accused of working with unnamed co-conspirators to ensure miners at White Buck and other, unidentified Massey-owned operations, got advance warning about surprise federal inspections many times between 2000 and March 2010.
Prosecutors say that gave workers time to conceal life-threatening violations that could have led to citations and shutdowns.
Carrico said May acknowledges he should have disassociated himself from the policies and practices that Massey used to subvert inspectors and give miners underground advance warning of their arrival.
But he has otherwise led an "exemplary life" with "absolutely no criminal history," Carrico argued, and his 24-year career as a coal miner is effectively over.
He's now supporting his wife and two daughters as a truck driver, he said, and is not likely to engage in any criminal conduct in the future.
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