Bluefield Daily Telegraph, Bluefield, WV

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WV State News

September 21, 2012

Appeals court hears arguments in W.Va. mine case

BECKLEY — A federal appeals court did not sound receptive to former mine security chief Hughie Elbert Stover’s claim that he was improperly convicted of lying to investigators after the 2010 explosion that killed 29 men at the Upper Big Branch mine in West Virginia.

Stover also was convicted last year of illegally ordering a subordinate to destroy documents relevant to the investigation, but a three-judge panel of the 4th U.S. Circuit Court of Appeals did not even get to that issue during a 20-minute hearing Friday. Instead, the court focused on Stover’s claim that there was no evidence he knowingly lied when he told investigators that miners were not alerted whenever inspectors arrived.

“This is not an insufficiency of evidence case, it’s an absence of evidence,” Stover’s attorney, William Wilmoth, told the judges.

The judges seemed skeptical, noting that several witnesses contradicted Stover’s statements at trial.

“There was a ton of circumstantial evidence,” Judge Andre Davis said.

Wilmoth said that when Stover became security chief at the former Massey Energy mine near Montcoal, he put a stop to the practice of guards telephoning miners to alert them that inspectors were on the premises. Instead, he said, guards announced every visitor’s arrival on two internal radio channels — a practice that company attorneys had assured Stover was legal. He said dispatchers monitoring the radio transmissions relayed the messages underground unbeknownst to Stover.

However, Assistant U.S. Attorney Blaire Malkin said Stover flatly told investigators several times that “we do not notify” when an inspector arrives. She said it was clear that Stover knew this was untrue, and it was up to the jury to decide whether he deliberately lied.

Judge J. Harvie Wilkinson III said Stover was “trying to muddy the waters” on a matter of grave importance.

“There’s a serious issue here because there have been some terrible mine calamities in West Virginia,” he said, adding that the federal Mine Safety and Health Administration’s efforts to prevent such catastrophes are crimped by limited resources.

“What they do rely on is spot inspections,” he said. “That whole approach is defeated if anybody goes through a drill once they know inspectors are on the grounds.”

Stover, described by his attorney as “a high school-educated former deputy sheriff,” was sentenced to three years in prison after being convicted on the two counts. He has remained free pending the appeal.

The appeals court typically takes several weeks to issue a decision.

So far, only one other person has been criminally charged in the nation’s worst mine disaster in four decades.

Former superintendent Gary May pleaded guilty to conspiracy to defraud the federal government for his actions at the mine, which has since been sealed by its current owner, Virginia-based Alpha Natural Resources. May is cooperating with federal prosecutors in a continuing investigation and will be sentenced in January.

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