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Current Issue: Vol. 22, No. 18 | September 29, 2014

  • Accidents:
    • Six burned in coal silo incident at Sulphur Springs Strip (580)
    • Debris on mine floor blamed for fractured back at Prosperity Mine (581)
    • Mechanic pinned by loader at Morenci Mine (581)
    • Driver Has concussion after vehicle falls over bank at Arkansas coal mine (582)
    • Falling rock injures sixth miner this year at Shoemaker Mine (582)
    • MSHA investigates second rock burst this year at Galena Mine (583)
    • Blast at California Quarry damages residences (584)
  • Black Lung:
    • MSHA inspectors not entitled to black lung benefits (584)
    • Four hearings and four appeals later, court awards benefits to miner’s widow (585)
    • Widow of JWR miner awarded benefits due to Affordable Care Act (586)
  • Discrimination: Company did not discriminate against female miner with osteoporosis (586)
  • Equal Access to Justice Act:
    • Fees denied where Secretary vacated citations due to lack of witnesses (587)
    • Over $40,000 in EAJA fees awarded where small operator had penalty reduced by 90% (588)
  • Fatalities:
    • Forklift fatally pins mechanic at Hockley Salt Mine (588)
    • Miner crushed by equipment at West Ridge Mine (589)
    • Miners lacked experience with feeder repair before fatality at Gibson Mine (589)
    • Machine catwalk retrofit blamed in fatal fall at Ames underground limestone mine (590)
    • ALJ upholds $157,000 in penalties in 2010 fatal truck accident at Rex Coal (592)
  • Grants: Increased Brookwood-Sago Grants announced for fiscal 2015 (595)
  • Imminent Danger: 596 explosive range detected in Aracoma Mine (596)
  • WARN Act: Nine Mile Mining violated WARN Act when it fired 73 miners (597)
  • Review Commission Orders and ALJ Decisions (598)

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MSHA hotline for immediately reportable accidents, CPR for any reason, imminent danger or hazardous conditions: 800-746-1553 (call within 15 minutes of accident)

Recent Posts

Quick Primer on Conspiracy Charges:

Donald Blankenship, former CEO of the now defunct Massey Coal, was charged, in part, with allegedly violating 18 U.S.C. § 371, also known as the “general conspiracy statute.” In this case, the U.S. Attorney claims that Blankenship conspired with others to willfully violate mandatory federal mine safety and health standards at the Upper Big Branch Mine where 29 miners were killed in an underground explosion on April 5, 2010.

To date, former Massey Energy Co. executive David Hughart, along with former UBB mine superintendent Gary May are in jail after pleading guilty to conspiracy charges. Hugie Elbert Stover, the head of security for the Upper Big Branch Mine, was sentenced to three years in prison for his role in giving advanced notice of MSHA inspectors coming onto mining property

The following is from the U.S. Attorneys Criminal Resource Manual on the legal definition and case law relied upon for such a charge.

The general conspiracy statute, 18 U.S.C. § 371, creates an offense “[i]f two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose. (emphasis added). See Project, Tenth Annual Survey of White Collar Crime, 32 Am. Crim. L. Rev. 137, 379-406 (1995)(generally discussing § 371).

The operative language is the so-called “defraud clause,” that prohibits conspiracies to defraud the United States.

Although this language is very broad, cases rely heavily on the definition of “defraud” provided by the Supreme Court in two early cases, Hass v. Henkel, 216 U.S. 462 (1910), and Hammerschmidt v. United States, 265 U.S. 182 (1924). In Hass the Court stated:

The statute is broad enough in its terms to include any conspiracy for the purpose of impairing, obstructing or defeating the lawful function of any department of government . . . (A)ny conspiracy which is calculated to obstruct or impair its efficiency and destroy the value of its operation and reports as fair, impartial and reasonably accurate, would be to defraud the United States by depriving it of its lawful right and duty of promulgating or diffusing the information so officially acquired in the way and at the time required by law or departmental regulation.

Hass, 216 U.S. at 479-480.

In Hammerschmidt, Chief Justice Taft, defined “defraud” as follows:

To conspire to defraud the United States means primarily to cheat the Government out of property or money, but it also means to interfere with or obstruct one of its lawful governmental functions by deceit, craft or trickery, or at least by means that are dishonest. It is not necessary that the Government shall be subjected to property or pecuniary loss by the fraud, but only that its legitimate official action and purpose shall be defeated by misrepresentation, chicane or the overreaching of those charged with carrying out the governmental intention.

Hammerschmidt, 265 U.S. at 188.

The general purpose of this part of the statute is to protect governmental functions from frustration and distortion through deceptive practices. Section 371 reaches “any conspiracy for the purpose of impairing, obstructing or defeating the lawful function of any department of Government.” Tanner v. United States, 483 U.S. 107, 128 (1987); see Dennis v. United States, 384 U.S. 855 (1966).

The “defraud part of section 371 criminalizes any willful impairment of a legitimate function of government, whether or not the improper acts or objective are criminal under another statute.” United States v. Tuohey, 867 F.2d 534, 537 (9th Cir. 1989).

The word “defraud” in Section 371 not only reaches financial or property loss through use of a scheme or artifice to defraud but also is designed and intended to protect the integrity of the United States and its agencies, programs and policies. United States v. Burgin, 621 F.2d 1352, 1356 (5th Cir.), cert. denied, 449 U.S. 1015 (1980); see United States v. Herron, 825 F.2d 50, 57-58 (5th Cir.); United States v. Winkle, 587 F.2d 705, 708 (5th Cir. 1979), cert. denied, 444 U.S. 827 (1979).

Thus, proof that the United States has been defrauded under this statute does not require any showing of monetary or proprietary loss. United States v. Conover, 772 F.2d 765 (11th Cir. 1985), aff’d, sub. nom. Tanner v. United States, 483 U.S. 107 (1987); United States v. Del Toro, 513 F.2d 656 (2d Cir.), cert. denied, 423 U.S. 826 (1975); United States v. Jacobs, 475 F.2d 270 (2d Cir.), cert. denied, 414 U.S. 821 (1973).

Thus, if the defendant and others have engaged in dishonest practices in connection with a program administered by an agency of the Government, it constitutes a fraud on the United States under Section 371. United States v. Gallup, 812 F.2d 1271, 1276 (10th Cir. 1987); Conover, 772 F.2d at 771. In United States v. Hopkins, 916 F.2d 207 (5th Cir. 1990), the defendants’ actions in disguising contributions were designed to evade the Federal Election Commission’s reporting requirements and constituted fraud on the agency under Section 371.

The intent required for a conspiracy to defraud the government is that the defendant possessed the intent (a) to defraud, (b) to make false statements or representations to the government or its agencies in order to obtain property of the government, or that the defendant performed acts or made statements that he/she knew to be false, fraudulent or deceitful to a government agency, which disrupted the functions of the agency or of the government. It is sufficient for the government to prove that the defendant knew the statements were false or fraudulent when made. The government is not required to prove the statements ultimately resulted in any actual loss to the government of any property or funds, only that the defendant’s activities impeded or interfered with legitimate governmental functions. See United States v. Puerto, 730 F.2d 627 (11th Cir.), cert. denied, 469 U.S. 847 (1984); United States v. Tuohey, 867 F.2d 534 (9th Cir. 1989); United States v. Sprecher, 783 F. Supp. 133, 156 (S.D.N.Y. 1992)(it is sufficient that the defendant engaged in acts that interfered with or obstructed a lawful governmental function by deceit, craft, trickery or by means that were dishonest”), modified on other grounds, 988 F.2d 318 (2d Cir. 1993).

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