                               UNPUBLISHED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Affirmed by unpublished opinion.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Unpublished opinions are not binding precedent in this circuit.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
