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Published: Thursday, March 01, 2012
Page: 1A

BECKLEY - A former Massey Energy security director deserves to spend three years in prison for lying to investigators and trying to destroy documents, but should not be blamed for the worst coal-mining disaster in nearly 40 years, a federal judge concluded Wednesday.

U.S. District Judge Irene Berger sentenced Hughie Elbert Stover to 36 months in jail, two years of probation and a $20,000 fine after he was convicted of two felonies: Making a false statement and obstructing a government probe of the Upper Big Branch Mine Disaster.

Stover, 60, of Clear Fork, was found guilty last October by a federal jury that concluded he lied to investigators about Massey's practice of warning underground workers when government safety inspectors arrive at its mines. The jury also concluded that Stover later tried to have one of his guards get rid of company documents about security procedures at Upper Big Branch.

During a court hearing in Beckley, Berger rebuffed U.S. Attorney Booth Goodwin, who recommended Stover receive the maximum sentence of 25 years behind bars, arguing that his crimes played a major role in causing the April 5, 2010, disaster that killed 29 miners.

"It is a very serious thing to hang death on anyone, and it should only be done when there is evidence to support it," Berger said.

Afterward, Goodwin pointed out that Stover received "perhaps one of the longest sentences ever handed down in a mine safety case," and said his team would continue trying to work up Massey's corporate ladder its sprawling Upper Big Branch probe.

"We wanted to send a clear message and will continue to send that message that anyone who obstructs our investigation, they're going to be met with the harshest prosecution," Goodwin told reporters in a brief news conference on the courthouse steps.

Stover's lawyer, former U.S. Attorney Bill Wilmoth of Wheeling, said the judge's conclusion that the security director wasn't responsible for blowing up the mine was only a small vindication for his client.

"I suppose I should be pleased with a sentence of only three years ... but if that's a victory, it's a hollow one," Wilmoth said. "Three years is a long time for someone to be incarcerated at the age of 60."

Lisa Workman, whose brother-in-law Dean Jones died in the mine explosion, said her family had little sympathy for Stover.

"They were in there worried about Mr. Stover seeing his grandchildren and being with his family," Workman said. "My brother-in-law, Deano, will never get the chance to see his 15-year-old son graduate high school. He'll never get the chance to hold his grandchildren."

Stover is the second person convicted in what government officials have described as a massive and widespread criminal probe of Upper Big Branch and of potential criminal violations at other Massey operations.

In September 2011, Berger sentenced former Upper Big Branch miner Thomas Harrah to 10 months in jail. Harrah pleaded guilty to faking a foreman's license when he performed key mine safety examinations at the mine between January 2008 and August 2009 and to then lying to investigators about his actions.

Last week, charges were filed against Gary May, an Upper Big Branch superintendent, accusing him of conspiracy to violate mine safety standards and cover up the resulting hazards at the mine. He was charged with a document called an information, rather than through a grand jury indictment, which typically means a defendant has reached a plea deal and is cooperating with prosecutors.

Four investigations by government agencies, an independent team and the United Mine Workers union have blamed the explosion on Massey's failure to maintain mining equipment, provide adequate underground ventilation and properly clean up explosive coal dust from mine tunnels.

Criminal prosecutions in workplace safety cases are relatively rare, and jail sentences following mine safety convictions - especially multi-year ones - are even more unusual, government records show.

But Goodwin and his chief UBB prosecutor, Steve Ruby, have promised to try to change that. Goodwin has said he will follow the investigation wherever it leads, and promised to try to move up the Massey corporate ladder.

In seeking the maximum sentence of 25 years for Stover, Goodwin said he hoped to reverse the "longstanding conventional wisdom ... that the federal government cares little about mine safety crimes."

The charges against Stover focused on his role in a Massey practice of warning workers underground of impending safety inspections, a routine occurrence that federal Mine Safety and Health Administration investigators say played a major role in the disaster.

Wilmoth said Stover's actions played no part in the mine disaster, and noted the former Raleigh County sheriff's deputy is also "a veteran, a community and family man, who has been employed his entire life and presents no threat." He asked Berger to sentence Stover to no jail time.

Prosecutors had planned to present witnesses they said would testify that Stover had admitted racially motivated misconduct as a police officer, admitted to sexual harassment, and kept sexually explicit images on his office computer.

But after nearly a half-hour private discussion between Berger and lawyers for both sides, those witnesses were never called. Instead, Stover admitted to a short set of facts that were privately read into the hearing transcript and then at least partially revealed to the public by the judge.

Berger said that, while Stover was honorably discharged from the military, he was also court-martialed and sent to "hard labor" related to a six-month desertion. The judge said that Stover, while a deputy, would arrest and cuff suspects, "force them to their knees and beat them." Stover targeted African-Americans for this treatment, Berger said.

While federal law set the maximum sentence at 25 years, federal sentencing guidelines, which judges can ignore or follow, recommended a sentence of between 33 and 41 months.

Goodwin urged Berger to make a major "upward departure" from those guidelines, arguing the security director "played a singular and indispensable role" in helping Massey hide safety hazards at the mine and "stop MSHA inspectors form ever discovering how dangerous UBB truly was."

During Wednesday's hearing, MSHA coal administrator Kevin Stricklin testified for prosecutors, explaining the importance of his agency's Upper Big Branch investigation.

Stricklin said Massey's practice of advance notice of government inspections kept MSHA officials from knowing the full extent of safety problems there, by giving the company time to temporarily fix hazards and avoid being cited or having to make long-term repairs. As an example, Stricklin said Massey could easily have fixed broken water sprays on its longwall mining machine or cleaned up explosive coal dust, covering up two serious problems that contributed the disaster.

Gina Jones, Upper Big Branch widow Dean Jones' widow, testified to support prosecutors' argument that the disaster investigation was important to the families of the miners who died. Gina Jones said she had read all of the reports issued so far, studied many of the investigation's interview transcripts, and attended many meetings to hear progress reports from investigators.

Also testifying for the government was Gary May, who said that he has reached a plea agreement through which he will admit to conspiring to violate safety laws at Upper Big Branch and help prosecutors as they continue their investigation.

May said that mine guards routinely warned underground workers when inspectors arrived at Upper Big Branch, and that he and other mine officials would scramble to cover up safety violations.

"I always spread extra rock dust if I knew someone was coming, to make it look good," May said. "I would go across and make sure my ventilation was the way it was supposed to be."

Still, Berger noted that Stover himself wasn't actually charged with the crime of providing advance notice of MSHA inspections, especially in the time period immediately prior to the explosion.

"There was nothing in this case to indicate that your actions resulted in this particular explosion," Berger told Stover. "There's no evidence that any actions on your part at around the time of this explosion resulted in the loss of the lives of these miners."

Berger did agree with prosecutors that Stover's false statements to investigators and his effort to destroy evidence were serious crimes that needed to be punished. The judge said such actions prevent the government from conducting "an honest investigation," finding the cause of an accident and "preventing further mine tragedies."

In response to Wilmoth's arguments that federal officials went after Stover in their search for a scapegoat for MSHA's own failure to prevent the explosion, Berger said, "MSHA is not on trial, so I won't go into my opinion on that, given the evidence I've heard."

Reach Ken Ward Jr. at or 304-348-1702.

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