US v. Hughie Stover

Filing

UNPUBLISHED AUTHORED OPINION filed. Originating case number: 5:11-cr-00038-1. Copies to all parties and the district court/agency. [999002620].. [12-4199]

Appeal: 12-4199

Doc: 33

Filed: 12/14/2012

Pg: 1 of 17

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-4199

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
HUGHIE ELBERT STOVER,
Defendant - Appellant.

Appeal from the United States District Court for the Southern
District of West Virginia, at Beckley.
Irene C. Berger,
District Judge. (5:11-cr-00038-1)

Argued:

September 21, 2012

Decided:

December 14, 2012

Before WILKINSON and DAVIS, Circuit Judges, and Max O. COGBURN,
Jr., United States District Judge for the Western District of
North Carolina, sitting by designation.

Affirmed by unpublished opinion.
Judge Cogburn wrote
opinion, in which Judge Wilkinson and Judge Davis joined.

the

ARGUED: William David Wilmoth, STEPTOE & JOHNSON, LLP, Wheeling,
West Virginia, for Appellant.
Blaire L. Malkin, OFFICE OF THE
UNITED STATES ATTORNEY, Charleston, West Virginia, for Appellee.
ON BRIEF: William J. O'Brien, Robert L. Bailey, STEPTOE &
JOHNSON, LLP, Wheeling, West Virginia, for Appellant. R. Booth
Goodwin II, United States Attorney, Charleston, West Virginia
for Appellee.

Appeal: 12-4199

Doc: 33

Filed: 12/14/2012

Pg: 2 of 17

Unpublished opinions are not binding precedent in this circuit.

2

Appeal: 12-4199

Doc: 33

Filed: 12/14/2012

Pg: 3 of 17

COGBURN, District Judge:
Appellant

Hughie

Elbert

Stover

(Stover)

appeals

from

a

criminal judgment entered following a jury trial in the United
States District Court for the Southern District of West Virginia
(Irene C. Berger, District Judge).

Stover was charged in a

superseding bill of indictment with: (1) making false statements
to a department or agency of the United States in a deposition,
in

violation

of

18

§

U.S.C.

statements to the FBI, in

1001(a)(2);

(2)

making

false

violation of 18 U.S.C. § 1001(a)(2);

and (3) attempting to destroy documents material to an ongoing
investigation,

in

violation

of

18

U.S.C.

§

1519

Prior to trial, the government dismissed Count Two.
the

jury

convicted

defendant

on

Counts

One

and

and

2(b).

At trial,

Three.

The

district court sentenced defendant to 36 months imprisonment on
the counts of conviction.

On appeal, Stover contends that the

district court improperly denied his motions to suppress, to
dismiss, and for acquittal.

Finding no error, we affirm the

district court.

I.
A.
On appeal, we consider the facts presented at trial in a
light most favorable to the government, as the prevailing party
at trial.

United States v. Jefferson, 674 F.3d 332, 341 n. 14
3

Appeal: 12-4199

(4th

Doc: 33

Cir.

Filed: 12/14/2012

2012).

In

April

Pg: 4 of 17

2010,

a

mine

explosion

at

the

Montcoal Mine, located in Raleigh County, West Virginia, killed
29 coal miners.

Almost immediately thereafter, attorneys for

the mine sent out notices to all employees not to destroy any
documents

based

on

a

“litigation

hold”

inasmuch

state and federal investigations had commenced.

as

multiple

Stover, who had

been chief of security for the mine since 1999, received actual
notice of the litigation hold inasmuch as copies of the notice
were posted at various places throughout the mine, including
above the shredder.
Evidence

produced

at

trial

showed

that

over

the

years,

security officers at the Montcoal mine would announce over the
radio when mine inspectors arrived at the front gate of the
mine.

The front gate was a substantial distance from the actual

mine facility.

This announcement was not only heard by other

guards and management, but by miners underground.

The operators

of

illegal

Montcoal

despite

were

being

aware

that

instructed

such

not

to

practice
announce

was
the

arrival

and,
of

inspectors, Stover had at the instruction of management required
his guards to announce whenever mine inspectors appeared at the
front gate.
these

and

Despite the illegality of such advance warning,

other

incidents

were

routinely

logged

by

Montcoal

security officers and then stored in “the barracks,” an onsite
storage facility.
4

Appeal: 12-4199

Doc: 33

Filed: 12/14/2012

Pg: 5 of 17

In the aftermath of the mine explosion, Stover was deposed
by

federal

non-law

enforcement

deposition in November 2010.

agents

during

a

non-custodial

It is undisputed that defendant

was represented by counsel during such deposition; however, a
grand

jury

deposition

determined
when

that

questioned

Stover
about

had

lied

practices

during

and

concerning announcing the arrival of mine inspectors.

such

procedures
While the

agents posed the questions in a number of ways to make sure
Stover understood the inquiry, he consistently testified that
mine security did not announce the arrival of mine inspectors.
The evidence presented at trial also showed that in January
2011, some months after being deposed, Stover ordered another
guard to dispose of the security records that were stored in the
barracks by taking them to a trash compactor/dumpster at the
mine.

Such guard was, however, summonsed to testify before the

grand jury that month, and revealed that Stover had ordered him
to dispose of the documents and told the grand jury that he had
placed those documents in the dumpster.
agents

of

the

FBI

inspected

the

With such information,

dumpster

and

found

the

documents, as the dumpster had not been emptied.
B.
Prior

to

trial,

Stover

moved

to

suppress

the

allegedly

false statements he made in his November 2010 deposition.

He

also moved to dismiss Counts One and Two of the superseding
5

Appeal: 12-4199

Doc: 33

indictment.
government

Filed: 12/14/2012

The

district

voluntarily

Pg: 6 of 17

court

dismissed

denied
Count

his
Two

motions
prior

and

to

the

trial.

Following a four-day trial, the jury returned verdicts of guilty
on Counts One and Three.

II.
On

appeal,

Stover

contends

that

the

judgment

should

be

reversed because (1) the district court erred in denying his
motions to suppress because he was in custody at the time of the
deposition,

and

unlawfully

issued

by

failed

allege

and

to

the

subpoena
state
the

under

which

authorities; 1
government

he

testified

(2)

the

failed

to

was

indictment
prove

the

requisite mens rea for Count One; and (3) the district court
erred in failing to grant defendant’s Motion for Judgment of
Acquittal or New Trial on Counts One and Two.

We address each

contention in turn.
A.
Stover

first

argues

that

the

denying his motions to suppress.

district

court

erred

in

This court reviews a district

court's factual findings for clear error and legal conclusions
1

Appellant also argued that his testimony should have been
suppressed because he was not given proper warnings before he
testified.
Such argument is subsumed by his argument and our
disposition of his claim that he was in custody at the time of
the deposition and will not, therefore, be further discussed.

6

Appeal: 12-4199

Doc: 33

Filed: 12/14/2012

Pg: 7 of 17

de novo when considering the denial of a motion to suppress.
United States v. Lewis, 606 F.3d 193, 197 (4th Cir. 2010).

In

conducting such review, the evidence is construed in the light
most favorable to the prevailing party with due weight given to
inferences reached from that evidence by the district court.
Id.
Defendant first contends that he was in custody during his
deposition, which occurred at the mine academy, and that the
district court erred in not so finding.

The warnings required

by Miranda v. Arizona, 384 U.S. 436 (1966), need only be given
when a suspect is subject to “custodial police interrogation.”
Id.

at

439

(emphasis

added);

see

also

United

States

v.

Martindale, 790 F.2d 1129, 1133 (4th Cir. 1986) (“Miranda is
applicable

only

in

cases

where

the

defendant

is

in

custody”

(citation omitted)).
A suspect is in custody when, under the totality of the
circumstances, the “suspect’s freedom of action is curtailed to
a degree associated with formal arrest.”

Berkemer v. McCarty,

468 U.S. 420, 440 (1984) (internal quotation marks omitted).
The appropriate inquiry is an objective one, focusing on whether
a reasonable person in the defendant’s position would have felt
free

to

terminate

the

interrogation

Keohane, 516 U.S. 99, 112 (1995).
imposed

restraint,

there

is

no
7

and

leave.

Thompson

v.

Generally, “[a]bsent policecustody.”

United

States

v.

Appeal: 12-4199

Doc: 33

Jamison,

Filed: 12/14/2012

509

F.3d

623,

633

Pg: 8 of 17

(4th

Cir.

2007).

Simply

being

compelled through a subpoena to appear and give testimony is not
sufficient to be considered “in custody,” as even a grand jury
subpoena has been determined to be insufficient to invoke the
protections

recognized

by

Miranda

and

its

progeny.

United

to

before

States v. Mandujano, 425 U.S. 564, 579 (1976).
In
state

this
and

federal

disaster.
deposed

matter,

Stover

was

agencies

subpoenaed

investigating

the

appear
Montcoal

mine

The undisputed record indicates that when Stover was

in

subpoena,

November

he

was

2010,

he

represented

appeared
by

under

counsel,

no

a

state-issued

law

enforcement

officers were present, the deposition was conducted at a mining
academy not a police station, and that nothing prevented him
from simply leaving the deposition.

Unlike an appearance before

a

by

grand

jury,

deposition.

Stover

was

assisted

counsel

throughout

the

See Iverson v. North Dakota, 480 F.2d 414, 424 (8th

Cir. 1973) (holding that testimony compelled by subpoena “does
not in itself constitute such compulsion to incriminate oneself
to

the

extent

prevent”)).
court’s

legal

the

safeguards

in

Miranda

were

intended

to

In conducting a de novo review of the district
conclusions,

we

apply

an

determine whether Stover was “in custody.”
516 U.S. 99, 112 (1995).

objective

test

to

Thompson v. Keohane,

This objective inquiry focuses on: (1)

the circumstances surrounding the interrogation; and (2) given
8

Appeal: 12-4199

Doc: 33

Filed: 12/14/2012

Pg: 9 of 17

those circumstances, would a reasonable person have felt he or
she was at liberty to terminate the interrogation and leave.
Id.

Having

examined

all

the

circumstances

surrounding

the

deposition of Stover in this matter, we cannot find that there
was

either

a

“formal

arrest”

or

“restraint

on

freedom

of

movement of the degree associated with formal arrest,” id., that
would have caused a reasonable person in defendant’s position to
perceive that he lacked the freedom to terminate the questioning
and leave.

Not only was no one present with any authority to

arrest defendant, he was at all times represented by counsel who
could have advised him of just such right.

Finding no error, we

affirm the district court’s denial of such motion to suppress.
Stover has also argued that the statements made by him at
the deposition should have been excluded inasmuch as the state
agency

conducting

the

inquiry

improperly

issued

the

subpoena

under West Virginia law, W. Va. Code § 22A-1-4, based on the
federal agency’s inability to issue a subpoena under 30 U.S.C. §
813(b). 2

We need not decide this issue because even if the

subpoena were invalid, the statements made and evidence derived
therefrom are not subject to exclusion under the exclusionary
rule.

As the Supreme Court has held, “the suppression remedy

for ... statutory, as opposed to constitutional, violations ...
2

Defendant made such motion in limine.

9

Appeal: 12-4199

Doc: 33

turns

on

Filed: 12/14/2012

the

provisions

of

Pg: 10 of 17

[the

judicially

fashioned

exclusionary

violations

of

Amendment

statute]

Fourth

rule

rather

aimed

rights.”

Donovan, 429 U.S. 413, 432 n.22 (1977).

than

at

the

deterring

United

States

v.

As this court has

found, “there is no exclusionary rule generally applicable to
statutory violations.”

United States v. Clenney, 631 F.3d 658,

667 (4th Cir. 2011) (internal quotation marks omitted).
Even if this court were to assume, as defendant argues,
that

having

the

state

agency

issue

a

subpoena

violated

the

federal agency’s obligation under § 813(b), no authorization of
suppression is found in that federal statute.

Further, even if

the state agency’s actions somehow ran afoul of state law in
issuing

its

exclusion

subpoena,

of

authorizing

evidence

statute,

federal prosecution.
law

does

evidence

not

in

that

state

provided

violation

of

not

would

law

in

obtained

such

require

for

the

to

direct

violation

federal
of

state

courts

the

state

exclusion

As this court held in Clenney,

attempt

obtained

and

in

a

“[state]
to

exclude

statutes,”

because

“[f]ederal not state law ‘governs the admissibility of evidence
obtained

by

state

prosecution.’”

officers

Id.

but

(citing

ultimately

and

quoting

used

United

Clyburn, 24 F.3d 613, 616 (4th Cir. 1994)).
district court.

10

in

a

federal

States

v.

We affirm the

Appeal: 12-4199

Doc: 33

Filed: 12/14/2012

Pg: 11 of 17

B.
Stover

next

contends

that

the

district

court

erred

in

denying his Motion to Dismiss Count One of the superseding bill
of indictment because it failed to allege, and the government
failed

to

prove,

the

requisite

mens

rea

for

Count

One.

Specifically, defendant contends that the district court erred
in

not

dismissing

Count

One

of

the

superseding

indictment

because the United States failed to allege that he knew his
statements were material.

When reviewing a district court’s

denial of a motion to dismiss an indictment, we review factual
findings for clear error and legal conclusions de novo.

United

States v. Brandon, 298 F.3d 307, 310 (4th Cir. 2002).
Our review of the superseding bill of indictment reveals
that the government alleged all the elements of a § 1001(a)(2)
offense.

Count One of the superseding indictment alleges that

defendant made a materially false statement and representation
to representatives of the Mine Safety and Health Administration
(MSHA)

and

security

the

guards

Department
at

the

of

mine

Labor
were

(DOL)

by

prohibited

stating
from

that

notifying

anyone at the mine site of the presence of inspectors at the
mine.

The superseding indictment alleges that defendant knew

his statement was false as he “well knew, because defendant . .
. had himself directed and trained security guards . . . to give

11

Appeal: 12-4199

Doc: 33

Filed: 12/14/2012

Pg: 12 of 17

advance notice by announcing the presence of an MSHA inspector
on mine property over the radio.”

J.A. 32.

Stover also argues in the alternative that the district
court erred in denying his Motion for Judgment of Acquittal or
New Trial because the United States did not put on any evidence
that

he

knew

his

statements

were

material.

The

essential

elements of a § 1001(a)(2) offense are, as follows:
1.

A material statement or representation;

2.

Which is false, fictitious, or fraudulent;

3.

Made in a matter within the jurisdiction
of a department or agency of the United States; and

4.
See

Done knowingly and willfully.

United

2004).

States

There

is,

v.

Camper,

however,

384
no

F.3d

1073,

authority

1075

cited

(9th

for

Cir.

Stover’s

argument that the government must prove that defendant knew his
statements were material to a federal agency. The materiality
analysis by the fact finder asks whether the statements could
have impacted the actions of a federal agency, United States v.
Oceanpro Ins., Ltd., 674 F.3d 323, 329 (4th Cir. 2012), not
whether defendant knew of an agency’s involvement or knew of the
materiality of his statement to such agency.

United States v.

Notarantonio, 758 F.2d 777, 785 n.4 (1st Cir. 1985).

Our review

of the evidence of record undercuts Stover’s contention, as it
contains ample evidence upon which a reasonable jury could have
12

Appeal: 12-4199

found

Doc: 33

that

Filed: 12/14/2012

the

false

knowing and material.

Pg: 13 of 17

statements

made

by

defendant

were

both

Put plainly, there is no requirement that

the government prove that defendant knew his statements were
material to MSHA or DOL.
In making such determination, we have also considered the
district

court’s

materiality

is

instruction
whether

the

on

materiality:

false

statement

“[t]he
has

test

a

of

natural

tendency to influence a governmental action or is capable of
influencing a governmental action.

It is not necessary for the

United States to prove that the statement here charged actually
did influence a governmental action.”

J.A. 550.

here, defendant

district

did

not

object

to

the

Where, as
court’s

jury

instruction regarding materiality at trial, this court’s review
is for plain error.
(4th Cir. 1999).
an

error,

(2)

United States v. Nicolau, 180 F.3d 565, 569

“To reverse for plain error there must be (1)

which

is

plain,

(3)

which

affects

substantial

rights, and (4) which seriously affects the fairness, integrity
or public reputation of judicial proceedings.”

United States v.

Brewer, 1 F.3d 1430, 1434-35 (4th Cir. 1993) (internal quotation
marks and
applied
errors.”

citations

“sparingly”

omitted).

The

and

only

saves

plain

error

exception

“particularly

is

egregious

United States v. Young, 470 U.S. 1, 15 (1985).

Review

of the district court’s instruction on materiality reveals no
plain error as the instruction is wholly consistent with this
13

Appeal: 12-4199

Doc: 33

Filed: 12/14/2012

Pg: 14 of 17

court’s recent articulation of the materiality test: “[t]he test
of

materiality

is

whether

the

false

statement

has

a

natural

tendency to influence agency action or is capable of influencing
agency action.”

United States v. Garcia-Ochoa, 607 F.3d 371,

375-76 (4th Cir.), cert. denied, 131 S. Ct. 494 (2010).
Finding no error, we affirm the district court’s denial of
defendant’s Motion to Dismiss as to Count One and its denial of
the Motion for Acquittal on Count One.

Finding no plain error

in its jury instruction on materiality, we affirm the district
court’s denial of the Motion for a New Trial.
C.
Stover argues that as to Count One, the government failed
to prove that defendant’s statements were false and that he knew
they were false.

Further, Stover asserts that it was error for

the district court to deny his Motion for Judgment of Acquittal
or

New

district

Trial.

On

court

erred

Count
in

Three,

denying

defendant
his

Motion

argues
for

that

Judgment

the
of

Acquittal or New Trial because the United States failed to prove
that

defendant

had

the

requisite

intent

to

impede

an

investigation.
“A defendant challenging the sufficiency of the evidence to
support his conviction bears a heavy burden.”

United States v.

Beidler,

1997)

quotations

110

F.3d

omitted).

1064,
In

1067

(4th

reviewing
14

Cir.
the

(internal

sufficiency

of

the

Appeal: 12-4199

Doc: 33

evidence

Filed: 12/14/2012

supporting

a

Pg: 15 of 17

conviction,

“the

relevant

question

is

whether, after viewing the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt.”
Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis).

The

government receives “the benefit of all reasonable inferences
from

the

facts

proven

to

those

sought

to

be

established.”

United States v. Tresvant, 677 F.2d 1018, 1021 (4th Cir. 1982)
(citations omitted).

A jury’s verdict must be upheld if there

is substantial evidence, viewed in the light most favorable to
the government, to support it.

Burks v. United States, 437 U.S.

1, 17 (1978).
Defendant also appeals the district court’s denial of a new
trial based on these same perceived evidentiary deficiencies.
This court reviews a district court's denial of a motion for a
new trial for abuse of discretion.
F.3d 316, 320 (4th Cir. 2003).

United States v. Perry, 335
A jury verdict is not to be

overturned except in the rare circumstance when the evidence
“weighs heavily” against it.
omitted).

Id.

(internal quotation marks

Whether to grant or deny a motion for a new trial is

within the broad discretion of the district court, which should
be

disturbed

on

appeal

only

in

very

limited

circumstances.

United States v. Smith, 451 F.3d 209, 216-17 (4th Cir. 2001).

15

Appeal: 12-4199

Doc: 33

As

to

Filed: 12/14/2012

Count

One,

the

Pg: 16 of 17

record

contains

an

abundance

of

evidence that defendant’s statements were false and that he knew
they

were

false.

While

“[t]he

answer

to

a

fundamentally

ambiguous question may not, as a matter of law, form the basis
for a false statement,” United States v. Sarwari, 669 F.3d 401,
407 (4th Cir. 2012), “[f]undamental ambiguity is the exception,
not the rule.”

Id. (quoting United States v. Farmer, 137 F.3d

1265, 1269 (10th Cir. 1998)).

In this case, defendant was asked

very plainly during the deposition about announcing the presence
of mine inspectors and the jury was presented with sufficient
evidence

for

it

to

conclude

that

his

testimony

was

false.

Accordingly we affirm the district court’s denial of Stover’s
Motion for Judgment of Acquittal or New Trial.
On Count Three, Stover argues that the district court erred
in denying his Motion for Judgment of Acquittal or New Trial
because

the

United

States

failed

to

prove

requisite intent to impede an investigation.

that

he

had

the

This argument also

fails as the record contains more than sufficient evidence for a
reasonable jury to conclude that defendant’s intent in ordering
the

destruction

of

the

records

was

to

investigation into the Montcoal disaster.

impede

the

ongoing

Defendant admitted

that he ordered the destruction of the records, that his order
was in direct violation of the litigation hold notice of which
he was aware, and that such records contained records of the
16

Appeal: 12-4199

guard

Doc: 33

Filed: 12/14/2012

shack,

including

Pg: 17 of 17

notations

as

to

the

arrival

of

mine

inspectors as well as incident reports.
Finally, Stover argues that the government failed to prove
that he had any criminal intent when he ordered the destruction
of the records.
evidence

that

Evidence adduced at trial, however, included
Stover:

(1)

was

aware

of

the

ongoing

FBI

investigation; (2) knew the focus of such investigation was on
the

practices

of

the

security

guards,

including

whether

inspectors were announced; and (3) that the FBI was interested
in

the

records

he

supports

the

required

criminal

destroy

jury’s

records

district

ordered

court’s

conclusion

intent

in

destroyed.

when

January

denial

of

that
he

2011;

Substantial
Stover

ordered

acted
a

with

subordinate

accordingly

Stover’s

evidence

we

the
to

affirm

the

Judgment

of

Motion

for

court’s

judgment

Acquittal or New Trial.

III.
In

sum,

we

affirm

the

district

in

its

entirety.
AFFIRMED

17