Filed: Dec. 14, 2012
Latest Update: Feb. 12, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4199 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. HUGHIE ELBERT STOVER, Defendant -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 Distri
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4199 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. HUGHIE ELBERT STOVER, Defendant -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 Distric..
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UNPUBLISHED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Affirmed by unpublished opinion.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 the
opinion, in which Judge Wilkinson and Judge Davis joined.
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.
Unpublished opinions are not binding precedent in this circuit.
2
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. § 1001(a)(2); (2) making false
statements to the FBI, in 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 and 2(b).
Prior to trial, the government dismissed Count Two. At trial,
the jury convicted defendant on Counts One and 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
(4th Cir. 2012). In April 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 as multiple
state and federal investigations had commenced. 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 Montcoal were aware that such practice was illegal and,
despite being instructed not to announce the arrival of
inspectors, Stover had at the instruction of management required
his guards to announce whenever mine inspectors appeared at the
front gate. Despite the illegality of such advance warning,
these and other incidents were routinely logged by Montcoal
security officers and then stored in “the barracks,” an onsite
storage facility.
4
In the aftermath of the mine explosion, Stover was deposed
by federal non-law enforcement agents during a non-custodial
deposition in November 2010. It is undisputed that defendant
was represented by counsel during such deposition; however, a
grand jury determined that Stover had lied during such
deposition when questioned about practices and procedures
concerning announcing the arrival of mine inspectors. 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. With such information,
agents of the FBI inspected the 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
indictment. The district court denied his motions and the
government voluntarily dismissed Count Two prior to 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 the subpoena under which he testified was
unlawfully issued by state authorities; 1 (2) the indictment
failed to allege and the government failed to 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 district court erred in
denying his motions to suppress. 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
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 and leave. Thompson v.
Keohane,
516 U.S. 99, 112 (1995). Generally, “[a]bsent police-
imposed restraint, there is no custody.” United States v.
7
Jamison, 509 F.3d 623, 633 (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
States v. Mandujano,
425 U.S. 564, 579 (1976).
In this matter, Stover was subpoenaed to appear before
state and federal agencies investigating the Montcoal mine
disaster. The undisputed record indicates that when Stover was
deposed in November 2010, he appeared under a state-issued
subpoena, he was represented by counsel, no 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 grand jury, Stover was assisted by counsel throughout the
deposition. 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 the safeguards in Miranda were intended to
prevent”)). In conducting a de novo review of the district
court’s legal conclusions, we apply an objective test to
determine whether Stover was “in custody.” Thompson v. Keohane,
516 U.S. 99, 112 (1995). This objective inquiry focuses on: (1)
the circumstances surrounding the interrogation; and (2) given
8
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
turns on the provisions of [the statute] rather than the
judicially fashioned exclusionary rule aimed at deterring
violations of Fourth Amendment rights.” United States v.
Donovan, 429 U.S. 413, 432 n.22 (1977). 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 subpoena, and that state law provided for the
exclusion of evidence obtained in violation of the state
authorizing statute, such would not require exclusion in a
federal prosecution. As this court held in Clenney, “[state]
law does not attempt to direct federal courts to exclude
evidence obtained in violation of state statutes,” because
“[f]ederal not state law ‘governs the admissibility of evidence
obtained by state officers but ultimately used in a federal
prosecution.’” Id. (citing and quoting United States v.
Clyburn,
24 F.3d 613, 616 (4th Cir. 1994)). We affirm the
district court.
10
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 the Department of Labor (DOL) by stating that
security guards at the mine were prohibited from 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
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. Done knowingly and willfully.
See United States v. Camper, 384 F.3d 1073, 1075 (9th Cir.
2004). There is, however, no authority cited for 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
found that the false statements made by defendant were both
knowing and material. 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 instruction on materiality: “[t]he test of
materiality is whether the false statement has a 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. Where, as
here, defendant did not object to the district court’s jury
instruction regarding materiality at trial, this court’s review
is for plain error. United States v. Nicolau, 180 F.3d 565, 569
(4th Cir. 1999). “To reverse for plain error there must be (1)
an error, (2) 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 citations omitted). The plain error exception is
applied “sparingly” and saves only “particularly egregious
errors.” 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
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 Trial. On Count Three, defendant argues that the
district court erred in denying his Motion for Judgment 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, 110 F.3d 1064, 1067 (4th Cir. 1997) (internal
quotations omitted). In reviewing the sufficiency of the
14
evidence supporting a 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. United States v. Perry, 335
F.3d 316, 320 (4th Cir. 2003). A jury verdict is not to be
overturned except in the rare circumstance when the evidence
“weighs heavily” against it.
Id. (internal quotation marks
omitted). 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
As to Count One, the 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 that he had the
requisite intent to impede an investigation. 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 impede the ongoing
investigation into the Montcoal disaster. 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
guard shack, including 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 adduced at trial, however, included
evidence that 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 ordered destroyed. Substantial evidence
supports the jury’s conclusion that Stover acted with the
required criminal intent when he ordered a subordinate to
destroy records in January 2011; accordingly we affirm the
district court’s denial of Stover’s Motion for Judgment of
Acquittal or New Trial.
III.
In sum, we affirm the district court’s judgment in its
entirety.
AFFIRMED
17
