The Register-Herald, Beckley, West Virginia

Latest News

September 24, 2013

Former UBB superintendent asks court to ‘correct’ sentence, claims attorney conflict

BECKLEY — Former Upper Big Branch mine superintendent Gary May, who is serving a 21-month sentence for conspiracy in the April 2010 explosion, has filed a motion for his sentence to be corrected because he says his attorney had a conflict of interest.

May was sentenced in January to 21 months in prison, three years supervised release and a $20,000 fine after pleading guilty in March 2012 to conspiracy to defraud the federal government, including disabling a methane gas monitor and falsifying records. He also admitted to giving prior notice when mine safety crews were coming for an inspection.

May is asking the court to consider that his defense counsel, Tim Carrico, may have been “constitutionally ineffective because of a conflict of interest” because Carrico was retained by Massey and Massey’s criminal liability could have been impacted by his (May’s) testimony.

He also said in the motion that he believes Carrico, Alpha’s corporate counsel Phil Monroe and former Massey owner Don Blankenship’s long-time attorney Tammy Harvey conspired to make him “a villain” and an “easy scapegoat.”

“Remembering the deadly, tragic circumstances preceding May’s information, it is easy to understand why the government was looking for a villain upon which to blame the deaths of the 29 miners,” the motion stated.  

“Although May was the only Massey employee to fully cooperate with federal investigations, the public and Massey found his actions to speak volumes. He became an easy scapegoat for the U.S. Attorney’s Office to relieve public pressure with a conviction and became a sacrificial lamb for Massey and its corporate successor Alpha.”

According to the motion, Massey Energy hired Carrico to defend May against the post-explosion federal charges, and that arrangement was continued after Alpha Natural Resources purchased Massey in June 2011.

“During the representation of May, Carrico was in constant communication with Alpha’s corporate counsel, Phil Monroe,” the motion stated.

“Carrico would not allow May to testify at the plea hearing about Massey Energy’s company and Chris Blanchard’s (Massey president under owner Don Blankenship) policy directing May, along with more than 100 other employees, to provide advance notice of mine inspectors’ presence.”

The motion stated, “Harvey had strategic input and apparently drafted May’s pleadings for Attorney Carrico while representing Don Blankenship and Alpha Natural Resources.”

An e-mail correspondence, dated June 12, 2012, from Monroe to Carrico, which was filed along with the motion, said: “I did speak with Tammy (Harvey), and what we are going to do is have you represent Gary. Behind the scenes, Tammy will likely prepare most of the pleadings since they need to be consistent and have you review and sign off if they are appropriate.”

May said during private conversations, he was advised not to testify about Massey’s corporate policy of advance notice.

“May assumed he would have another opportunity to divulge this information but this never occurred,” the motion said. “May was told ‘it’s not a good time to bring this up.’”

May also said he told Carrico several facts in the information were incorrect, namely facts about the deactivated methane monitor, which he said by federal regulations was not within the “working place.”

“May was advised that because he was no longer being charged with disabling the monitor that it didn’t matter,” but the motion added, “the court used those erroneous facts against May within the sentencing hearing.”

Carrico failed to object to the sentencing or try to have it changed because he was it was a part of “his and his co-counsels’ strategy to protect Alpha and Blankenship by making May the fall guy,” the motion said.

“The public and the families of the mine explosion had someone to blame.”

May said his Sixth Amendment rights have been violated, as he did not have a “conflict free” counsel.

He mailed the motion to the Beckley U.S. District Court from the Federal Correctional Institution at Morgantown.

This motion was filed Aug. 30, and an amendment was filed Sept. 11, stating that Tammy Harvey is married to attorney M. Shane Harvey, who is vice president and general counsel for Alpha Natural Resources.

“This husband-wife relationship further muddies the conflict of interest waters as they relate to defendant May,” the amendment said. “The appearance of impropriety further taints the public’s perception of justice and fair play and makes one question just whose interests the Carrico, Monroe, Harvey, Harvey defense team were actually defending.”

In the amended complaint, May asks the court for specific performance to vacate, set aside or correct his sentence and to convict him of one misdemeanor and sentence him to time served.

— E-mail:

Text Only
Latest News
  • twv twins One Hatfield, two actors

    If you shake hands with the cast and crew at Theatre West Virginia after the show, don’t worry if you think you’re seeing double.
    Jacob and James Cline, 12-year-old twins, are a part of the team this year, assisting  with props and portraying Little Troy Hatfield.

    July 25, 2014 1 Photo

  • Construction begins on Meadow River Rail Trail

    Construction has finally begun on the Meadow River Rail Trail, a recreation project undertaken in a unique partnership between Greenbrier and Fayette counties.

    July 25, 2014

  • AARP reps talk future of Social Security

    The future of Social Security was on the menu at a listening session staged Thursday by AARP West Virginia at the West Virginia School of Osteopathic Medicine.

    July 25, 2014

  • Juvenile petitions sought against teens in Mount Hope B&Es

    The Fayette County Sheriff’s Department is filing juvenile petitions against two Page-area teens after two businesses in the Mount Hope area were broken into early Thursday.

    July 25, 2014

  • US issues 186 mining citations in June

    The Mine Safety and Health Administration says inspectors issued 186 citations at 13 U.S. mining operations in June.

    July 24, 2014

  • Lawsuit filed after Dirty Girl Run canceled

    A lawsuit has been filed against the producers of a run that was canceled in Charleston in which participants were told they wouldn't be issued refunds.

    July 24, 2014

  • Juveniles caught after breaking and entering in Fayette

    The Fayette County Sheriff’s Department is filing juvenile petitions against two teens from the Page area after two businesses in the Mount Hope area were broken into.

    July 24, 2014

  • Saints arrive 1 Saints march into ‘Almost Heaven, W.Va.’

    At 3:54 p.m. Wednesday afternoon the New Orleans Saints’ chartered flight touched the ground at the Greenbrier Valley Airport, and Greenbrier County officially became “Who Dat?” Country. INCLUDES TOUT VIDEO.

    July 24, 2014 3 Photos

  • Broadband panel eyes access to rural areas

    The West Virginia Broadband Deployment Council met far outside its typical Charleston venue Wednesday to hear issues about Internet speeds in some of the state’s most rural regions.

    July 24, 2014

  • Lewisburg official says fuel spill contained, drinking water safe

    Lewisburg’s public works director is confident that a Tuesday afternoon fuel spill 60 miles upriver from the city water system’s intake has been contained and the water is safe to drink.

    July 24, 2014