PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                  No. 95-5594

DARLENE TURNER,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                  No. 95-5595

DENNIS TURNER,
Defendant-Appellant.

Appeals from the United States District Court
for the Western District of Virginia, at Big Stone Gap.
Glen M. Williams, Senior District Judge.
(CR-94-49-B)

Argued: September 27, 1996

Decided: December 26, 1996

Before MURNAGHAN, Circuit Judge, SMITH, United States
District Judge for the Eastern District of Virginia, sitting by
designation, and MICHAEL, Senior United States District Judge for
the Western District of Virginia, sitting by designation.

_________________________________________________________________

Affirmed by published opinion. Judge Smith wrote the opinion, in
which Judge Murnaghan and Senior Judge Michael joined.

_________________________________________________________________
COUNSEL

ARGUED: Robert Maurice Galumbeck, DUDLEY, GALUMBECK
& SIMMONS, Tazewell, Virginia, for Appellants. Steven Randall
Remseyer, Assistant United States Attorney, Abingdon, Virginia, for
Appellee. ON BRIEF: Robert P. Crouch, Jr., United States Attorney,
Abingdon, Virginia, for Appellee.

_________________________________________________________________

OPINION

SMITH, District Judge:

Darlene Turner, owner, President, and mine operator of Bruce Coal
Company, and Dennis Turner, her husband and also mine operator at
Bruce Coal, were both sentenced to imprisonment for violating 18
U.S.C. § 371 and 30 U.S.C. § 820(f) of the Federal Mine Safety and
Health Act of 1977 ("Act"). Under the Act, each miner must receive
at least eight hours of annual refresher training regarding mine health
and safety. 30 U.S.C. § 825(a)(3); 30 C.F.R.§§ 48.8, 48.28. The
training is mine-specific, and is geared to the roof control plans, ven-
tilation plans, and safety devices at each particular mine. 30 C.F.R.
§§ 48.8, 48.28. Upon completion of the training, the mine operator
must certify on Mine Safety and Health Administration form 5000-23
("MSHA form 5000-23"), the form approved by the Secretary of
Labor, that each miner has received this annual training. 30 U.S.C.
§ 825(c); 30 C.F.R. §§ 48.9, 48.29. The Act requires each mine opera-
tor to maintain this form and make it available for inspection at the
mine site. Id. In an attempt to circumvent these requirements of the
Act, the Turners paid a certified mine safety instructor, Donald Ken-
drick, to state falsely on several MSHA 5000-23 forms that he pro-
vided safety training to miners working for Bruce Coal Company, in
violation of § 371 and § 820(f) of the Act.

On appeal, Darlene Turner contends that she is not guilty because
the MSHA 5000-23 forms upon which Kendrick made these false
statements were not proper under the Act, as the forms did not have
a place for the mine operator to certify personally that the training
was given. Moreover, even if the forms at issue were proper, Ms. Tur-

                    2
ner argues that she did not violate the Act because she did not person-
ally sign the forms, and Kendrick was not acting as her agent when
he made the false certifications. She maintains that the United States
did not present sufficient evidence at trial to prove beyond a reason-
able doubt that she violated 18 U.S.C. § 371 and 30 U.S.C. § 820(f).

In addition, with regard to their sentences, the Turners argue on
appeal that the district court erred in its determination that: (1) the
Turners' offenses involved the conscious or reckless risk of serious
bodily injury, pursuant to United States Sentencing Commission,
Guidelines Manual, § 2F1.1(b)(4)(A) (Nov. 1995) ("USSG"); (2)
Dennis Turner was an organizer of a criminal activity involving five
or more participants, pursuant to USSG § 3B1.1; and (3) the Turners
abused a position of public or private trust in a manner that signifi-
cantly facilitated the commission of the offense, pursuant to USSG
§ 3B1.3. For the reasons stated below, we affirm.

I.

Darlene Turner was the owner, President, and operator of Bruce
Coal Company, which operated an underground coal mine in Dicken-
son County, Virginia. Dennis Turner, Darlene's husband, also worked
for Bruce Coal as a mine operator. He "volunteered" his time at the
mine, electing not to receive a salary because he owed money to the
Internal Revenue Service. In March, 1993, Dennis Turner asked Don-
ald Kendrick, a certified mine safety instructor, to fill out training
forms for the miners who worked at Bruce Coal without actually giv-
ing them the eight hours of health and safety training required by the
Act. Mr. Turner explained that he could not afford to pay the miners
for the day of training, and agreed to pay Kendrick two hundred dol-
lars per form to certify falsely that the training was given. On each
blank MSHA form 5000-23, Kendrick falsely certified that he trained
the Bruce Coal miners at the Turners' house on March 20, 1993. Ken-
drick never gave the miners any training.

After Kendrick signed the blank MSHA 5000-23 forms, Darlene
Turner gave them to Tammy Mullins, an employee at Bruce Coal, and
instructed her to fill in the names and social security numbers of the
Bruce Coal miners. Nineteen forms were thus filled out, and ulti-
mately signed by the miners. The miners, none of whom actually

                    3
received the indicated training and some of whom did not even work
for Bruce Coal in March, 1993, signed the forms with the apparent
understanding that "[y]ou either signed it, or you went hunting
another job."

Dennis Turner, Darlene Turner, and Donald Kendrick were named
as co-defendants in a twenty-six count indictment returned on Decem-
ber 8, 1994. Count I charged each of the defendants with violating 18
U.S.C. § 371, by conspiring to make false statements, representations,
or certifications on MSHA 5000-23 forms, in violation of 30 U.S.C.
§ 820(f). Counts II through XXV charged Dennis and Darlene Turner
with willfully making, or aiding and abetting the making of, false
statements, representations, or certifications on twenty-four MSHA
5000-23 forms, in violation of 30 U.S.C. § 820(f) and 18 U.S.C. § 2.
In Count XXVI, Dennis Turner was charged with violating 30 U.S.C.
§ 820(d) and 18 U.S.C. § 2, for his willful violation of MSHA manda-
tory health and safety standards regarding roof support in the mine,
set forth in 30 C.F.R. § 75.202(a).

Donald Kendrick pled guilty pursuant to a plea agreement on Janu-
ary 24, 1995. On March 20, 1995, Dennis Turner entered a guilty
plea, without a plea agreement, to the first twenty-five counts of the
indictment. Count XXVI against Mr. Turner was dismissed on motion
of the United States at sentencing. Darlene Turner, however, elected
to go to trial. The trial commenced on March 20, 1995, and concluded
the following day with a jury verdict of guilty on Counts I, VII, XXI,
and XXIII, and not guilty as to the remaining counts. Counts VII,
XXI, and XXIII involved the false certification on three MSHA 5000-
23 forms for miners who were not yet employed at the mine on March
20, 1993, the date the forms indicated the training had occurred. The
district court denied Darlene Turner's Motion for Judgment of
Acquittal on June 23, 1995.

The sentencing hearing for Dennis and Darlene Turner was held on
July 13, 1995. The court (1) enhanced the Turners' base offense
levels from six to thirteen levels pursuant to USSG§ 2F1.1(b)(4)(A),
because their offenses involved the conscious or reckless risk of seri-
ous bodily injury; (2) enhanced Dennis Turner's offense level by four
levels pursuant to USSG § 3B1.1, because he was an organizer of a
criminal activity involving five or more participants; and (3)

                    4
enhanced the Turners' offense levels by two levels pursuant to USSG
§ 3B1.3, because the court found they abused a position of public or
private trust in a manner that significantly facilitated the commission
of the offense. The court sentenced Darlene Turner to eighteen (18)
months of imprisonment on each count for which she was convicted,
Counts I, VII, XXI, and XXIII, with the terms to run concurrently,
and a fine of $4,000.00. Dennis Turner was sentenced to twenty-four
(24) months of imprisonment on each of Counts I-XXV, with the
terms to run concurrently, and a fine of $5,000.00. The court also sen-
tenced the Turners to a three year period of supervised release upon
release from imprisonment.

II.

Darlene Turner maintains that the district court erred in denying
her Motion for Judgment of Acquittal because (a) as a matter of law
she committed no illegal act, and (b) the United States did not prove
beyond a reasonable doubt that she conspired to make, willfully did
make, or aided and abetted the making of, false certifications on
MSHA 5000-23 forms, in violation of 18 U.S.C. § 371 and 30 U.S.C.
820(f). In reviewing a sufficiency of the evidence challenge to a con-
viction, the court must view the evidence in the light most favorable
to the prosecution and ask whether "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); United States
v. Tipton, 90 F.3d 861, 889 (4th Cir. 1996).

A.

The parties agree that MSHA form 5000-23 is mandated by the
statute and the regulations. The Secretary of Labor must promulgate
regulations with respect to health and safety training programs under
30 U.S.C. § 825(a). Each miner must receive at least eight hours of
annual refresher training regarding mine health and safety pursuant to
30 U.S.C. § 825(a)(3) and 30 C.F.R. §§ 48.8, 48.28. "Upon comple-
tion of each training program, each operator shall certify, on a form
approved by the Secretary, that the miner has received the specified
training . . . ." 30 U.S.C. § 825(c). The regulations further provide that
this certification must occur on MSHA form 5000-23:"the operator

                     5
shall record and certify on MSHA form 5000-23 that the miner has
received the specified training." 30 C.F.R. §§ 48.9, 48.29.

Under the statute and regulations, "[f]alse certification by an opera-
tor that training was given shall be punishable under section 820(a)
and (f) . . . ." 30 U.S.C. § 825(c); 30 C.F.R. §§ 48.9(b), 48.29(b). The
penalties provision states that criminal penalties await

          [w]hoever knowingly makes any false statement, representa-
          tion, or certification in any application, record, report, plan,
          or other document filed or required to be maintained pursu-
          ant to this chapter . . . .

30 U.S.C. § 820(f).

Ms. Turner places the utmost importance on the fact that Counts
I, VII, XXI, and XXIII charge her specifically with conspiring to
make, and willfully making, or aiding and abetting the making of,
false statements, representations, or certifications on MSHA form
5000-23, a form "required to be maintained pursuant to [the Act]," in
violation of 18 U.S.C. § 371 and 30 U.S.C.§ 820(f). According to
Ms. Turner, she is punishable under these statutes only if the forms
at issue conform with the requirements of the Act. By construing very
strictly the language of 30 U.S.C. §§ 820(f) and 825(c), as well as 30
C.F.R. §§ 48.9 and 48.29, Ms. Turner contends that the forms falsely
signed by Kendrick and the miners were not the proper forms
required to be maintained pursuant to the Act.

Each form at issue provides two signature lines, one for the miner,
and the other for the "person responsible for training," to certify that
the training has in fact been given. The form does not contain any
other signature line, and neither Dennis nor Darlene Turner personally
signed any of the forms. Under Ms. Turner's strict interpretation of
30 U.S.C. § 825(c), a proper MSHA form 5000-23 must have a place
for the operator to certify personally that training has been given,1 and
_________________________________________________________________
1 The district court stated in its opinion that the forms used here met
this requirement. In its June 27, 1995, Memorandum Opinion, the court
correctly observed that MSHA form 5000-23 calls for the signature of

                      6
the form cannot require any other person to so certify. Because the
forms at issue provide a signature line for the miner and the instruc-
tor, but not the operator, ipso facto the forms are not legally proper
under the requirements set forth in 30 U.S.C. § 825(c) and 30 C.F.R.
§§ 48.9, 48.29. Consequently, Ms. Turner argues that false certifica-
tions on them are not punishable under 30 U.S.C.§ 820(f).

Ms. Turner also relies on a due process argument to support her
contention that no one can be punished for the false certifications that
did occur. To be valid, a federal regulation must fall within the statu-
tory grant of Congress. If a form does not fall within that grant,
because it contains a requirement not properly promulgated, then that
form may not serve as a basis for prosecution. No one can be crimi-
nally prosecuted for violating a rule or requirement that was not
passed by Congress or properly promulgated by an Executive
Agency. Accordingly, since no law of Congress nor any promulgated
rule provides for any certification other than that of the operator's,
Ms. Turner maintains that false certifications by Kendrick and the
miners cannot violate the law. To subject these non-operators to crim-
inal liability, or to prosecute an operator based on the false certifica-
tion of a non-operator, would constitute creating a crime without the
approval of Congress.

Characterizing this argument as "absurd," the United States points
out that the form at issue here is the one and only"MSHA form 5000-
23" used in the industry,2 that the statute and regulations do authorize
_________________________________________________________________
the "person responsible for training," and under the clear language of 30
U.S.C. § 825(a), the person legally responsible for the miner's training
is the operator. In this way, the court rejected Ms. Turner's argument that
only the certified instructor could sign on this line. Likewise, we reason
that the mine operator can sign on this line, either personally or through
an agent. See infra at 8-11.

2 At trial, Stanley Blankenship, a MSHA special investigator, identified
the forms signed by Kendrick and the miners to be the forms MSHA
requires coal operators to maintain. Although these forms all include the
statement "Expires March 31, 1989," Blankenship testified that MSHA
still distributes these exact forms to the coal companies: "[t]hey only
reprint this form over and over. There's no regulation to us not accepting
these forms. . . . [T]here's nothing improper about it."

                     7
a non-operator to certify on an operator's behalf that the training has
been completed, and that a false certification on MSHA form 5000-23
by any person constitutes a violation of 30 U.S.C.§ 820(f). We agree
with the United States that the MSHA 5000-23 forms at issue here are
proper forms authorized by the Act,3 and that common sense belies
Darlene Turner's contention that only an operator's certification is
authorized or punishable.

First, although it is the mine operators who are required to certify
under 30 U.S.C. § 825(c) that the training has been completed by the
miners, it is generally another person--the instructor--who actually
trains each miner. Common sense then compels us to reject Ms. Tur-
ner's argument that the Act only authorizes certification by the opera-
tor personally, and not through the instructor, as the operator's agent.
For example, 30 U.S.C. § 825(a) provides that"[e]ach operator of a
coal or other mine shall have a health and safety training program
which shall be approved by the Secretary." This statement does not
connote that the Secretary of Labor must personally approve every
health and safety training program for every mine in the country. Sim-
ilarly, when 30 U.S.C. § 825(c) provides that"each operator shall cer-
tify" that the miner has received the required training, it does not
mean the operator must personally sign every form. Instead, by
approving the use of MSHA form 5000-23, which provides a signa-
ture line for the miner and the person responsible for the training, but
not specifically limited to the operator alone, the Secretary implicitly
allowed the operator to certify through an agent, the instructor, that
the miner has received the required training. Therefore, the Secretary
_________________________________________________________________
3 To the extent Ms. Turner argues that the forms at issue were never
actually approved by the Secretary pursuant to 30 U.S.C. § 825(c), that
argument is frivolous. First, the Secretary specifically authorizes the use
of MSHA form 5000-23 in 30 C.F.R. §§ 48.9 and 48.29, and Ms. Turner
admits that the Secretary properly promulgated that regulation. (Appel-
lant's Reply Br. at 4.) Second, the United States points out that the indus-
try uses only one MSHA form 5000-23. The forms are captioned "U.S.
Department of Labor, Mine Health and Safety Administration," and
labeled "MSHA Form 5000-23." Since this court holds that MSHA form
5000-23 does meet the requirements of §§ 48.9 and 48.29, which were
properly promulgated by the Secretary, we find the Secretary approved
the forms upon which Kendrick and the miners made their false certifica-
tions.

                    8
did not act contrary to the law and clearly acted within his discretion
in approving a form which allows an instructor to certify on MSHA
form 5000-23, in the operator's stead as the operator's agent, that the
required training was actually provided. Similarly, the Secretary did
not act arbitrarily or capriciously in approving a form which also pro-
vides a space for the miner to verify completion of training. See 43
Fed. Reg. 47,454, 47,457 (miners should acknowledge completion of
the training program on the certificate).

Second, even if we accept Ms. Turner's argument that these forms
are not the proper forms required to be maintained pursuant to 30
U.S.C. § 825(c), false statements on these forms still violate 30
U.S.C. § 820(f), because these forms are also required to be main-
tained under 30 U.S.C. § 813(h). This section of the Act authorizes
the Secretary of Labor or the Secretary of Health and Human Services
to require operators to establish and maintain any other records,
reports, or information needed so that either Secretary can perform
their functions. 30 U.S.C. § 813(h). Given that 30 U.S.C. § 825(a)(3)
requires the Secretary of Labor to ensure that miners obtain at least
eight hours of safety training per year, it is not unreasonable for the
Secretary to require a form to be maintained at the mine site which
would provide information concerning whether such training was
actually given. Thus, false statements by anyone on these forms are
punishable under 30 U.S.C. § 820(f), regardless of whether they are
required to be maintained pursuant to 30 U.S.C.§ 825(c) or 30 U.S.C.
§ 813(h).

Third, it is not logical nor good public policy to allow non-
operators to make false certifications on the MSHA form 5000-23,
and thereby shield the operators from liability. The whole point of the
forms and the requirement that the operator maintain them at the mine
site is to ensure that the miners actually receive eight hours of annual
health and safety training. A false certification on a MSHA form
5000-23 by the operator, or anyone on the operator's behalf, prevents
a mine inspector from discovering that the training has not occurred
and delays the implementation of corrective action. In addition, the
penalties provision does not single out operators for punishment;
rather, it provides that criminal penalties await"[w]hoever knowingly
makes any false statement, representation, or certification [on any

                    9
form] required to be maintained pursuant to" the Act. 30 U.S.C.
§ 820(f) (emphasis added).

In conclusion, we agree with the reasoning in United States v.
McCormick, No. 86-5580, 1987 WL 36176 (4th Cir. Jan. 9, 1987)
(per curiam) (unpublished opinion). In McCormick , the defendant was
also convicted of a violation of 30 U.S.C. § 820(f) for causing miners
to state falsely on MSHA form 5000-23 that they had received the
annual safety training. The court observed that"form 5000-23 is a
form required to be maintained by the Act," and therefore "any person
making misrepresentations . . . on such [a] form was liable under the
Act." Id. at *1. The court in McCormick directly rejects the notion
that non-operators can lie with impunity on MSHA form 5000-23,
and notes that "[w]hile neither the defendant[a non-operator] nor the
miners may have been required by the Act to certify that the training
program was completed, they were nonetheless prohibited from
knowingly making false statements on the relevant forms." Id.

We find that the MSHA 5000-23 forms at issue here, upon which
Kendrick and the Bruce Coal miners made false certifications at the
direction of the Turners, are proper forms required to be maintained
by the Act. Anyone who knowingly makes a false statement, repre-
sentation, or certification upon this form, or aids and abets another in
so doing, is punishable under 30 U.S.C. § 820(f). In addition, anyone
who conspires with others to make such false certifications is punish-
able under 18 U.S.C. § 371.

B.

Even if she can be liable for falsely signing the forms through an
agent, Darlene Turner also argues that the United States did not estab-
lish beyond a reasonable doubt that Kendrick was her agent or that
she had any knowledge of the false certifications orchestrated by her
husband Dennis Turner. According to Ms. Turner, the United States
did not present any evidence proving that Kendrick was acting under
her authority in signing the forms, that she was present when Kendr-
ick or the miners falsely signed the forms, or that she and Kendrick
had any contact during the time period the falsifications took place,
in March, 1993. Both Turners testified at trial that Ms. Turner was
ignorant of the daily workings of the mine, and that she completely

                    10
deferred to Mr. Turner, who made all the important decisions. Then,
since the jury acquitted her of all charges that required a finding of
her knowledge of Kendrick's actions at the time the fictitious training
supposedly occurred, Ms. Turner claims the jury found Kendrick was
not her agent and that she had no knowledge of the false certifications
when they occurred in March, 1993.4 Based upon the evidence pres-
ented at trial and the jury's acquittal on certain counts, Ms. Turner
contends that a rational jury could not then have found that she knew
the forms were falsely certified, or that she played a role in encourag-
ing others to make false statements on them, thereby convicting her
of the other counts.

To the contrary, we find that, based on the evidence presented at
trial, a rational jury could have found Ms. Turner guilty as charged
of conspiring to make false certifications, and willfully making, or
aiding and abetting the making of, false certifications, as set forth in
Counts I, VII, XXI, and XXIII.5 As the owner of the mine, Ms. Turner
directly benefitted from the cost-savings that accrued from falsifying
the forms instead of providing the miners with the day of paid train-
ing. Also important is the evidence that Ms. Turner gave Ms. Mullins
the blank MSHA 5000-23 forms containing Kendrick's false certifica-
tions, and asked her to complete them. Moreover, not only was she
the owner, President, and operator of Bruce Coal, but Ms. Turner also
maintained the payroll and regularly submitted documents to the
Mine Safety and Health Administration. This position gave her access
to information concerning the dates the miners were hired and the
amount of money they were paid. She knew that normally each miner
received $50 for the day of training, but that in 1993, the payroll
books never showed that payment. Finally, Ms. Turner filled out an
annual safety training form for Kevin Stout, once he started working
at the mine in May, 1993. Even though Ms. Turner hired Stout in
May, and obviously knew that he had not worked for her in March,
she filled in Stout's name and social security number on a MSHA
_________________________________________________________________
4 The jury did find Ms. Turner guilty of Counts I, VII, XXI, and XXIII.
Count I was the conspiracy charge, and Counts VII, XXI, and XXIII
involved the false certification on three MSHA 5000-23 forms for miners
not yet employed by Bruce Coal on March 20, 1993, the date the forms
indicated the training had occurred.
5 See supra note 4.

                    11
form 5000-23 signed by Kendrick, which represented that Stout was
trained at the Turners' house on March 20, 1993. Consequently, the
MSHA form 5000-23 Ms. Turner completed on Stout's behalf was
clearly false.6

The jury had the opportunity to observe Darlene and Dennis Turner
on the witness stand while the pair insisted that Ms. Turner knew
nothing of the falsifications on the MSHA 5000-23 forms. The jury
did not act irrationally in convicting her of the charges in Count I
(conspiring to make false statements on MSHA form 5000-23) and
Counts VII, XXI, and XXIII (willfully making, or aiding and abetting
the making of, false statements on MSHA form 5000-23 for three
miners hired after March 20, 1993); they simply doubted the Turners'
veracity and found that the evidence to the contrary supported a ver-
dict of guilty on these counts. A juror could have rationally found Ms.
Turner guilty beyond a reasonable doubt on the counts of conviction.
Thus, her conviction stands, and we affirm the district court's denial
of Ms. Turner's Motion for Judgment of Acquittal. 7

III.

The Turners also maintain that the district court erred in enhancing
their sentences under the United States Sentencing Guidelines. Appel-
late review of the district court's application of the sentencing guide-
lines depends upon the circumstances of the case. United States v.
Daughtrey, 874 F.2d 213, 217 (4th Cir. 1989). Legal issues are sub-
ject to de novo review, whereas factual determinations are given due
deference and are affirmed unless they are "clearly erroneous." Id. at
217-18 (citing 18 U.S.C. § 3742(e)). The district court made the fac-
tual determinations that the Turners' offenses involved the conscious
or reckless risk of serious bodily injury, that Mr. Turner was an orga-
_________________________________________________________________
6 Count XXIII charged Ms. Turner with willfully making, or aiding and
abetting the making of, false statements on MSHA form 5000-23 for
Kevin Stout.
7 This court also agrees with the district court that "[e]ven if it was
assumed that [Ms. Turner] did not grant Kendrick actual authority to
make these false statements, she ratified his authority by her silence and
in using his false statements to certify training that had not been done."
(Mem. Op., June 27, 1995.)

                    12
nizer of a criminal activity involving five or more participants, and
that the Turners abused a position of public or private trust. There-
fore, this court shall affirm unless the district court's decisions are
clearly erroneous. See United States v. Goode , No. 95-5003, 1995 WL
131316, *3 (4th Cir. March 15, 1995) (per curiam) (unpublished opin-
ion) (district court's factual determination that defendant was reckless
in creating a risk of serious bodily injury was not clearly erroneous);
United States v. Helton, 953 F.2d 867, 869 (4th Cir. 1992) (whether
a defendant held a position of trust and whether he abused it are both
factual determinations reviewable for clear error); United States v.
Sheffer, 896 F.2d 842, 846 (4th Cir.) (district court's determination
that defendant was an organizer or leader of a criminal activity, that
it involved five or more participants, and that the business was exten-
sive is essentially factual, and therefore subject to the clearly errone-
ous standard), cert. denied, 498 U.S. 838 (1990).

A.

The Turners contend that the lower court erred in enhancing their
base offense levels from level six to level thirteen pursuant to USSG
§ 2F1.1(b)(4)(A), which mandates such an enhancement if the "of-
fense involved the conscious or reckless risk of serious bodily injury."
They insist that the false certifications did not negatively impact
safety at Bruce Coal so as to warrant a finding of"conscious or reck-
less risk of serious bodily injury." Moreover, Darlene Turner argues
that she lacked the knowledge of the field of mining that is necessary
to support such a showing.

Although the miners never received the eight hours of annual
safety training required by the Act and the regulations, the Turners
nevertheless claim that they provided the miners with sufficient train-
ing via the mine superintendent and the videos provided by the Mine
Safety and Health Administration. They also issued regular safety
notices and distributed safety pamphlets. The Turners point out that
during the time of these "legal" violations, the accident frequency rate
at the mine fell markedly, from 25.96 to 4.00. In recognition of this
reduction in reported accidents at the mine, Bruce Coal received an
award and was removed from the Joint Mine Assistance ("JMA") pro-
gram, a special program designed to address safety concerns at the
country's most unsafe mines.

                    13
By stressing that safety at the mine was not affected by their failure
to comply with the Act, the Turners try to distinguish their situation
from the one found in United States v. Goode, No. 95-5003, 1995 WL
131316. In Goode, a mine foreman pled guilty to violating 30 U.S.C.
§ 820(c) by allowing miners to smoke in the mines, and then falsify-
ing records to conceal the violations. The mine safety violations were
discovered after a methane explosion in the mine killed eight men. Id.
at *1. As in the instant case, Goode challenged the district court's
determination that his offense involved a "conscious or reckless risk
of serious bodily injury." Id. at *2.

This court in Goode affirmed the district court's enhancement
under USSG § 2F1.1(b)(4)(A). The court noted that "[a]s foreman,
Goode knew of the safety standards which he violated, and was aware
of the dangers of smoking in the mine, having personally recorded
high levels of methane gas" before the explosions. Id. at *3. The court
rejected Goode's attempts to distance himself from personal liability
for the explosion, noting that

          [h]is logic seems to be that, if no injuries or fatalities
          occurred as the direct result of his violations, his offense
          could not have involved the conscious or reckless risk of
          serious bodily injury. This theory ignores the fact that a risk
          need not actually come to fruition to be a real risk. The
          guideline asks if there was a risk . . . , not whether serious
          bodily injury actually directly resulted from the defendant's
          behavior.

Id. (emphasis added). The court agreed with the district court that
"`the fact that no deaths directly resulted from the conduct doesn't
make it any less reckless.'" Id.

The Turners attempt to distinguish Goode in two ways. First, they
interpret Goode as requiring special knowledge of potential dangers
that could arise out of the safety violations, and argue that Ms. Turner
lacked that special knowledge. According to the Turners, Goode was
much more knowledgeable about the dangers he courted by violating
mine safety rules, and he was more active than Ms. Turner in cover-
ing up the violations. Ms. Turner claims she had no mining experi-
ence or safety training at the time of the violations, and she was

                    14
completely unaware that the certifications were false and the training
was not given.

Goode does not impose a "special knowledge" requirement; rather,
the court simply applied USSG § 2F1.1(b)(4)(A), and found that
defendant, in permitting smoking in the methane-tainted atmosphere
of the mine, knew his violations of the safety standards created a risk
of serious bodily injury. Similarly, there is substantial evidence that
Ms. Turner was aware of the false certifications and the fact that the
miners did not receive safety training in March, 1993. Ms. Turner was
the owner, President, and a mine operator of Bruce Coal Company;
she was aware of the training requirements; she had access to infor-
mation concerning the miners' hire dates and wages; she submitted
documents to the Mine Safety and Health Administration; and she
directed Stout to state falsely on MSHA form 5000-23 that he
received Kendrick's training in March, 1993, when she knew Stout
was not yet employed on that date.

The Turners also attempt to distinguish Goode by arguing that the
sentencing court's enhancement under USSG § 2F1.1 was unwar-
ranted because the United States failed to show any special character-
istics of this offense creating a risk of serious bodily injury.
According to the Turners, the United States did not show that any
dangerous condition existed as a result of the false certifications on
the MSHA 5000-23 forms.

Substantial evidence, however, supports the district court's finding
that these false certifications did create a risk of serious bodily injury
at the Bruce Coal mine. Because the Turners failed to provide their
miners with the required annual training, the miners did not receive
mine-specific safety information concerning the mine's roof or
ground control plans, ventilation plans, and safety devices. Moreover,
the record reflects that the Bruce Coal underground mine was one of
the least safe mines in the country, receiving hundreds of safety viola-
tions and reporting numerous accidents between 1987-1994. Due to
its poor safety record and dangerous conditions, Bruce Coal was
twice placed in the JMA program.8
_________________________________________________________________
8 Although Bruce Coal was removed from the JMA program when
accident rates fell, the record reflects that the Turners failed to properly
and timely report some of the accidents that did occur. Therefore, it is
possible that Bruce Coal would not have been removed from the JMA
program if the true accident report figures were known.

                    15
Given the myriad of safety problems experienced over the years at
Bruce Coal, the general danger of underground mining, and the poten-
tial risks that could arise as a result of having untrained miners in that
setting, the district court did not err in enhancing the Turners' base
offense levels from level six to level thirteen pursuant to USSG
§ 2F1.1(b)(4)(A), because the Turners' offenses "involved the con-
scious or reckless risk of serious bodily injury." As the court in Goode
noted, the fact that no accidents are directly attributable to the lack of
training does not make the Turners' conduct any less reckless. Goode,
No. 95-5003, 1995 WL 131316, at *3.

B.

Dennis Turner further argues that he was not an organizer of a
criminal activity involving five or more persons, and hence he does
not deserve a four level enhancement. Under USSG§ 3B1.1(a), the
sentencing court must increase the defendant's offense level by four
levels if "the defendant was an organizer or leader of a criminal activ-
ity that involved five or more participants or was otherwise exten-
sive." The term "participant" is defined in Application Note 1 as "a
person who is criminally responsible for the commission of the
offense." USSG § 3B1.1(a), comment. (n.1).

Mr. Turner maintains that the miners were not "participants" in any
crime, as they cannot be held criminally responsible for falsely stating
on MSHA form 5000-23 that they received the required training from
Kendrick. Relying on the same argument presented by Ms. Turner in
Part II.A., Mr. Turner argues that the signature of a miner on that
form is not required by the Act, and therefore the false statement of
a miner on MSHA form 5000-23 cannot be punished under 30 U.S.C.
§ 820(f). As a result, Mr. Turner argues there are, at most, only three
criminal participants in this case: Dennis Turner, Darlene Turner, and
Kendrick, assuming that Kendrick was acting as the Turners' agent.

As discussed previously in Part II.A., a non-operator's false state-
ment on MSHA form 5000-23 still violates 30 U.S.C.§ 820(f). Under
§ 820(f), criminal penalties will be imposed on "[w]hoever knowingly
makes any false statement, representation, or certification" on any
document required to be maintained by the Act. Accordingly, the
miners violated the law when they falsely stated on the forms at issue

                     16
that they received safety training from Kendrick when they did not.
Each one is "criminally responsible for the commission of the
offense," even though they were not charged with it. Moreover, the
Turners' illegal scheme would not have succeeded without the partici-
pation of the miners. Because there were well over five "participants"
in this criminal activity, and Mr. Turner is undeniably its organizer,
the district court was not clearly erroneous when it gave Mr. Turner
a four level enhancement under USSG § 3B1.1.

C.

The Turners' final contention is that the district court erred during
sentencing when it enhanced their offense levels by two levels pursu-
ant to USSG § 3B1.3, upon a finding that they"abused a position of
public or private trust . . . in a manner that significantly facilitated the
commission or concealment of the offense." First, they argue that the
United States presented no evidence that either of them was in a posi-
tion of public or private trust. Under the guidelines, a person holds "a
position of public or private trust" if his or her position is "character-
ized by professional or managerial discretion (i.e., substantial discre-
tionary judgment that is ordinarily given considerable deference)."
USSG § 3B1.3, comment. (n.1). By virtue of their positions as owner,
President, and mine operators of Bruce Coal, both Turners regularly
exercised managerial discretion at the mine. The miners, as employ-
ees of the Turners, had to privately trust in them and defer to their
judgment regarding mine safety and training. In addition, the rest of
society had to publicly trust the Turners to follow the mine safety
laws during operation of the Bruce Coal mine. Accordingly, both Tur-
ners held a position of public and private trust.

Second, the Turners argue that even if they did hold such a position
of public or private trust, the abuse of a position of trust is a "specific
offense characteristic" built into the offense of conviction, and hence
it cannot serve as an enhancement factor under USSG§ 3B1.3. They
base this argument on the same idea, discussed in Part II.A. and Part
III.B. above, that only through the false certification by an "operator"
(the position of trust) may a violation occur under 30 U.S.C. § 820(f).
Because this crime can only be committed by an operator, say the
Turners, one's status as an operator cannot be used to enhance a sen-
tence.

                     17
As previously stated, 30 U.S.C. § 820(f) is violated by "[w]hoever"
makes any false statement on any form required to be maintained by
the Act. Consequently, every miner who falsely stated that he
received the training is also guilty of the offense, and can be prose-
cuted. If a miner was prosecuted, the enhancement for abuse of a
position of trust under USSG § 3B1.3 would not apply. Such an
enhancement would apply to the Turners, however, because, as mine
operators, each held a position in management which gave them
leverage over the miners, and which enabled them to convince the
miners to commit and conceal the false statements made on the
MSHA 5000-23 forms. Moreover, because society trusted the Turners
to follow the mine safety laws and ensure that the Bruce Coal miners
actually received the required safety training, their position of public
trust also made detection of the violations of § 820(f) more difficult.
Thus, the district court was not clearly erroneous in giving the Tur-
ners a two level enhancement under USSG § 3B1.3 for their abuse of
a position of public or private trust.

IV.

Based on the foregoing discussion, we conclude that the district
court did not err in denying Darlene Turner's Motion for Judgment
of Acquittal or in determining the sentence of Darlene or Dennis Tur-
ner. Accordingly, the decision below is

AFFIRMED.

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