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Feds seek 25 years in jail for Upper Big Branch security chief

CHARLESTON, W.Va. -- Federal prosecutors want a former Massey Energy security chief to spend 25 years in jail for lying to investigators and trying to destroy evidence in the probe of the Upper Big Branch Mine Disaster.

U.S. Attorney Booth Goodwin argued in a court filing that Hughie Elbert Stover's actions played a major role in causing the April 5, 2010, explosion that killed 29 coal miners.

In a seven-page sentencing memorandum filed Tuesday, prosecutors said the miners died "in part" because of a system of inspection warnings Stover helped to coordinate. They said Stover later "acted to sabotage" the largest mine disaster probe in a generation.

"It is difficult to imagine a conviction for obstructing justice and making a false statement whose facts would rival these, with 29 miners dead and the subversion of an investigation of the highest national priority," Goodwin's memorandum said. "For that reason, a sentence that does not at least approach the maximum would not reflect the seriousness of the offense, provide just punishment, or promote respect for the law."

Goodwin noted that, "even the 25-year maximum sentence would represent only 10 1/2 months for each death involved."

U.S. District Judge Irene Berger is scheduled to sentence Stover during a Feb. 29 hearing in Beckley.

Defense attorney Bill Wilmoth urged Berger not to sentence Stover to any jail time or to at least split any sentence so that most of it is spent on home confinement. Wilmoth argued that Stover was innocent, and that crimes he was charged with had nothing to do with the mine disaster.

"The tragedy at UBB in April 2010 will live large in the hearts and minds of West Virginians forever as a terrible event," Wilmoth wrote. "The actions for which Elbert Stover was convicted, however, occurred much later, from August 2010 to January 2011, and were wholly unrelated to the cause of the explosion. "In no way should the nature and circumstances of the UBB tragedy be weighed in considering sentence in this case, and they do not support a term of incarceration."

In October, a federal jury convicted Stover of two felonies: making a false statement and obstructing justice. Jurors concluded that Stover lied to investigators and then tried to destroy evidence about Massey's practice of warning underground workers when federal inspectors arrived at Upper Big Branch.

By statute, Stover could face a maximum of 25 years in prison. Federal sentencing guidelines, which judges can follow or ignore, recommend a sentence of between 33 and 41 months.

Prosecutors said that a sentence within those sentencing guidelines would "risk trivializing the impact" of Stover's conduct. They said sentence of between 33 and 41 months "would be the same had he obstructed an investigation into the impersonation of a 4-H club member ... or for transporting water chestnuts across state lines."

In its report on the Upper Big Branch explosion, the U.S. Mine Safety and Health Administration concluded that Massey "established a practice of using staff to relay advance notice of health and safety inspections to mine personnel when federal and state inspectors arrived at the mine.

"This advance notice allowed [Massey] employees to conceal violations from enforcement personnel" and avoid fixing major problems that led to the disaster, MSHA said.

Prosecutors said that Stover "played a singular and indispensable role in these warnings.

"He required UBB security guards to act as lookouts for mine inspectors, making a radio announcement the moment an inspector arrived," prosecutors said. "UBB was a sprawling mine, so these early warnings routinely gave mine officials up to two hours to conceal illegal conditions. Defendant's wrongdoing helped stop MSHA inspectors from ever discovering how dangerous UBB truly was."

Prosecutors said that MSHA inspectors warned Stover's guards in 2001 and 2007 that advance notice of inspections was a crime. Both times, they said, guards told Stover about the warnings, but he ignored them and "persisted in ordering that inspections be announced."

In their legal memo, prosecutors explain that, "longstanding conventional wisdom holds that the federal government cares little about mine safety crimes.

"This case has the potential to upend that assumption and foster broad deterrence in an industry that is closely monitoring the outcome here," Goodwin wrote. "A sentence consistent with the magnitude of defendant's conduct and its consequences will send a resounding message: Gambling with coal miners' lives risks the most severe punishment available under the law."

Prosecutors argued that courts routinely impose sentences far higher than that sought for Stover in gun and drug cases "whose facts pale next to those here," citing one recent 260-month sentence for charges involving gun possession and selling crack

"Tens of thousands of similar federal sentences are handed down every year," prosecutors said. "Prisons overflow with young people confined for a decade or more for conduct that has led to no deaths and had no impact beyond their immediate surroundings."

Wilmoth argued that Stover, a 60-year-old former Marine and sheriff's deputy, "poses no threat to anyone, and his history of law-abiding, contributing family man and member of society factors against a term of incarceration."

Prosecutors said that they expected defense lawyers to "seek leniency" based on Stover's testimony at trial that he "would never break the law." Prosecutors said that, if necessary, the government would "offer evidence of misconduct by defendant beyond that addressed at trial."

Reach Ken Ward Jr. at kward@wvgazette.com or 304-348-1702.


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