Coal Tattoo

Goodwin turns up the heat on UBB security chief

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We broke the story last night on the Gazette’s website about U.S. Attorney Booth Goodwin taking the highly unusual step of asking for the maximum possible jail sentence — 25 years in prison — for Hughie Elbert Stover, the former Massey Energy security chief convicted for lying and trying to destroy evidence in the investigation of the Upper Big Branch Mine Disaster.

The story was updated this morning after Stover’s defense lawyer, former U.S. Attorney Bill Wilmoth, filed his own sentencing memorandum, arguing that Stover deserves no jail time at all or — at worst — a minor sentence with most of it served on home confinement.

I’ve posted a copy of the prosecution brief here and the defense filing here so you can read them for yourselves.

Goodwin’s brief explains that in seeking such a sentence — substantially more than the 33 to 41 months recommended by federal sentencing guidelines — is a key part of changing the criminal justice system’s priorities, so that mine safety crimes are taken seriously, especially by the industry:

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. 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.

Judge Berger — whose father was a coal miner and who lost a brother in a coal tipple accident (subscription required) — has already moved things in this direction. She sent a former Upper Big Branch miner to jail for 10 months for lying about having foreman’s credentials. She sent a former Alpha Natural Resources contractor to jail for six months for lying about training practices at a mine where two workers died in a roof fall.

That’s quite a contrast from the results of the criminal investigation of the Aracoma Mine fire. Five foremen from Aracoma were allowed to plead guilty to misdemeanors charges, rather than felonies, and none of them went to jail.

In a March 15, 2011 photo, Massey Energy Security Chief Hughie Elbert Stover, center, and his wife, left, are swamped by members of the media as they leave the Federal courthouse in Beckley after.  (AP Photo/The Register-Herald, F. Brian Ferguson)

In his memorandum, Goodwin compares Stover’s case to the way federal courts routinely handle drug and gun crimes (mostly by young black men), noting a bunch of recent cases with sentences as long or longer than what the guidelines recommend for Stover:

Tens of thousands of similar federal sentences are handed down every year. 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. This is not to question the wisdom of those sentences. But for defendant, for this conduct, to receive a Guidelines sentence far lower than a street-level drug dealer would not legitimately reflect the seriousness of his offense or provide just punishment.

Not surprisingly, defense attorney Wilmoth argues that this sort of stuff is all more than a bit much, saying the UBB disaster really has nothing to do with Stover’s case:

The tragedy at UBB in April 2010 will live large in the hearts and minds of West Virginians forever as a terrible event. 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.

The issue here is whether you believe the U.S. Mine Safety and Health Administration’s report on Upper Big Branch, which concluded that advance notice of inspections was a major factor in causing the nation’s worst coal-mining disaster in nearly 40 years:

PCC/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. The advance notice allowed PCC/Massey employees to conceal violations from enforcement personnel.

Of course, prosecutors did not specifically charge Stover with providing advance notice of inspections, perhaps because that’s only a misdemeanor, punishable with a maximum of six months in jail.  Instead, they got him for lying to investigators who asked him if Upper Big Branch routinely warned underground workers when inspectors arrived, and for trying to destroy security records that might have shed light on such activities. Wilmoth argues that Stover never really destroyed any records, that he didn’t really lie, and that federal agents tried to trip him up with questions that “either inartfully vague or deliberately obtuse.” The problem with that, though, is that Stover got to make those arguments to a jury of his peers — and they didn’t buy it.

Wilmoth argues the usual stuff that you get in criminal cases … Stover is a good father and husband, a good grandfather. He grew up poor and was beaten by his step-father as a child. He served his country in the Marines and his community as a police officer. Prosecutors responded with a somewhat ominous threat that if that’s the line the defense takes at sentencing, they would “offer evidence of misconduct by defendant beyond that addressed at trial.”

Prosecutors argue that Stover “played a singular and indispensable role” in warning of impending government inspections:

He required UBB security guards to act as lookouts for mine inspectors, making a radio announcement the moment an inspector arrived. 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.

That last part — helped stop MSHA inspectors from ever discovering how dangerous UBB truly was — might seem a little tough to swallow. I mean come on, MSHA was at this mine a lot, and federal inspectors wrote up a lot of violations. But remember that UBB was just a hair away from getting cited for a “pattern of violations” that would have prompted even more scrutiny from federal agents and tougher enforcement sanctions for the mine. (On the other hand, who knows what might have happened if MSHA had been able to keep its enforcement data straight or hadn’t cut back on POV reviews without first asking for more resources to do the job).

There are quite a few critics of Goodwin’s handling of all of this who won’t be satisfied until they see Don Blankenship go to jail. But you can’t just throw somebody in jail without being able to make a criminal case against them, and it’s obvious that it’s tough to do that against a coal company executive given today’s laws (see here and here).  At least Goodwin’s office didn’t repeat what happened with Aracoma, where then-U.S. Attorney Charles Miller agreed not to prosecute any executives or agents of Massey, claiming to have no evidence against them, despite a fascinating paper trail assembled by lawyers for Aracoma widows Delorice Bragg and Freda Hatfield.

Goodwin’s deal with Alpha Natural Resources, which bought Massey and its Upper Big Branch liabilities last year, doesn’t stop Goodwin and his team from pursuing any individuals who they believe committed crimes at Upper Big Branch. If the public and his critics are quick to point out that nobody very far up the corporate ladder has been brought to court yet, that’s partly Goodwin’s own fault, for telling us  over and over that his investigation isn’t over, that his staff is aware of crimes that haven’t yet been charged, and they will follow this trail wherever it leads. At some point, it will become clear that either charges are being brought against higher-up mine management and corporate officials — or they aren’t.  It’s probably still too soon to conclude one way or the other.

But in seeking a 25-year sentence for the Upper Big Branch security chief, Goodwin has raised the bar again, both for the coal industry and for his own team of prosecutors. Stay tuned …