MORGANTOWN, W.Va. (AP) — A former security chief convicted of lying to investigators after the 2010 explosion that killed 29 men at the Upper Big Branch mine asked a federal appeals court Monday to overturn his October conviction and order a new trial.
Hughie Elbert Stover filed his appeal with the U.S. 4th Circuit Court of Appeals in Richmond, Va., just before the court-ordered deadline.
Stover, 60, was found guilty of lying to investigators and ordering a subordinate to destroy documents following the worst U.S. coal mine disaster in four decades. The mine was operated by Massey Energy, which was later bought by Virginia-based Alpha Natural Resources Inc.
He was sentenced to three years behind bars — one of the stiffest punishments ever handed down in a mine safety case — but has not been ordered to report to prison.
"This appeal is not about credibility determinations, the weight of the evidence or conflicts in the evidence," attorney William Wilmoth wrote in the 66-page document. "It is about a total lack of evidence."
There's no proof that Stover lied or that he ever intended to impede the investigation, Wilmoth argues, and prosecutors inflated the value or falsely portrayed what evidence they had.
U.S. Attorney Booth Goodwin has previously said that Stover was convicted fairly, in every respect.
Stover's appeal cites multiple errors by the trial court, arguing that U.S. District Judge Irene Berger wrongly allowed evidence the federal Mine Safety and Health Administration obtained through a subpoena that had been issued by state regulators. It also claims the West Virginia Office of Miners Health, Safety and Training overstepped its authority in issuing that subpoena.
MSHA wanted to conduct closed-door interrogations but has no legal power to subpoena witnesses on its own, Wilmoth said, so it got the state to do the work.
"It is clear that this was entirely an MSHA show," he wrote. "MSHA called all the shots on who to subpoena and when."
The questioning of Stover also violated his constitutional rights to remain silent while in custody or have a lawyer present, Wilmoth wrote.
Witnesses testified last fall that Stover instructed mine guards to send out radio alerts whenever inspectors entered the property, which is illegal.
Stover denied those claims in the November 2010 interview with investigators, which led to the lying charge. His appeal says Stover actually ended the practice, and when questions subsequently arose about the dispatchers' communication policy, he was told by company lawyers that it was legal.
"Stover was convicted for agreeing with his employer's lawyer," Wilmoth maintains. "... A trial for a felony is no place to decide whose legal opinion is better."
The second count claimed Stover sought to destroy documents in January 2011 by ordering a subordinate to bag them and then throw them into an onsite trash compactor, which is also illegal.
Massey had repeatedly warned employees to keep all records while the disaster remained under investigation. Company officials told investigators of the trashed documents, which were recovered.
But Stover paints a different picture: He says the "barracks" where the documents were kept was routinely filled with trash then emptied, and also prone to sewer-system backups.
Wilmoth says Stover ordered a routine cleanup in January 2011, and "to that point, no one had ever asked Elbert for anything in the barracks."
"So it never crossed Elbert's mind that any of it might be 'material' to the UBB investigation," the appeal says, arguing investigators themselves had told him that records 7-9 years old in the barracks weren't pertinent.
After the trash was cleared out, he argues, "the investigators changed their minds."
Stover then ordered a subordinate to make sure no one removed or emptied the trash bin.
"None was lost or damaged," the appeal says, and the few that the government showed interest in "were no worse for their brief stint in the Dumpster."
The documents were turned over immediately, but the FBI didn't even retrieve them until a week and a half before the trial, the appeal said.
Only one other person has been criminally charged in the disaster.
Former superintendent Gary May pleaded guilty to conspiracy to defraud the federal government for his actions at the mine.
He's cooperating with federal prosecutors in a continuing investigation and will be sentenced Aug. 9.