harrah executed plea agreement

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U.S. Department of Justice

United States Attorney

Southern District ofWest Virginia

Robert C. Byrd United States Courthouse Mailing Addr

300 Virginia Street, East, Suite 4000 Post Office Box 1

Charleston, WV 25301 Charleston, WV 25326-17

FAX: (304) 347-5104 (304) 345-2

1-800-659-8

March 16, 2011

Mary Lou NewbergerFedera l Publ ic Defender300 Virg in ia St r e e t , EastChar leston, West Virg in ia 25301

Re: United Sta tes v. Thomas Harrah

Dear Ms. Newberger:

This w i l l confirm our conversa t ions with regard to yourc l i en t , Thomas Harrah (here inaf te r "Mr. Harrah") . As a r e s u l t ofthese conversa t ions , it i s agreed by and between th e United Sta tes

and Mr. Harrah as fol lows:

1. CHARGING AGREEMENT. Mr. Harrah agrees to waive h i s r igh t

pursuant to Rule 7 of the Federa l Rules of Criminal Procedure to becharged by ind ic tment and w i l l consent to the f i l i ng of a two-countinformation to be f i l ed in the United Sta tes D i s t r i c t Court fo r the

Southern D i s t r i c t of West Virginia , a copy of which i s a t tachedhere to as "Plea Agreement Exhib i t A."

2. RESOLUTION OF CHARGES. Mr. Harrah w i l l plead gui l ty to

a v io la t ion of 30 U.S.C. § 820(f) ( fa l se s ta tement on MSHA

document) and a v io l a t i on of 18 U.S.C. §1001 ( fa l se s ta tements to

fede ra l agents) as charged in sa id informat ion.

3. MAXIMUM POTENTIAL PENALTY. The maximum pena l ty to which

Mr. Harrah w i l l be exposed by v i r tue of th i s gu i l ty plea i s asfo l lows:

I:X:!fendant'gi n i t i a l s .



Mary Lo u NewbergerMarch 16, 2011 Re: Thomas Harrah

Count One

(a ) Imprisonment fo r a per iod o f 5 yea rs ;

(b ) A f ine of $250,000, o r twice th e gross pecun iary ga in o r

twice the gross pecuniary lo s s r e su l t i n g from defendant ' s

conduct , whichever i s g r ea t e r ;

(c) A term o f superv i sed r e lease o f 3 yea rs ;

(d ) A mandatory s p ec i a l assessment o f $100 pursuant to 18U.S.C. § 3013; and

(e ) An orde r o f r e s t i t u t i o n pursuant to 18 U.S.C. §§ 3663 and3664, o r as otherwise se t fo r th in t h i s plea agreement .

COUNT TWO

(a ) Imprisonment fo r a per iod o f 5 yea rs ;

(b) A f ine of $250,000, o r twice th e gross pec uniary gain o r

twice the g ross pecuniary loss r e su l t i n g from defendant ' s

conduct , whichever i s grea te r ;

(c) A term of superv i sed r e lease o f 3 yea rs ;

(d) A mandatory s p ec i a l assessment o f $100 pursuant to 18U.S.C. § 3013; and

(e) An orde r o f r e s t i t u t i o n pursuant to 18 U.S.C. §§ 3663 and3664, o r as otherwise s e t fo r th in t h i s plea agreement .

Tota l Maximum Poten t i a l Penal ty

(a) Imprisonment fo r a per iod o f 10 yea rs ;

(b) A f ine o f $500,000, o r twice the g ross pecuniary gain o rtwice the g ross pecuniary loss r e su l t i n g from defendant ' s

conduct , whichever i s g r ea t e r ;

Defendant'si n i t i a l s



{. ,

Mary Lou Newberger March 16, 2011 Re: Thomas Harrah

(c) A term of supervised re lease of 3 years ;

(d) A mandatory spec ia l assessment of $200 pursuant to 18

U.S.C. § 3013; and

(e) An order of r e s t i t u t ion pursuant to 18 U.S.C. §§ 3663 and3664, or as o therwise se t fo r th in t h i s plea agreement.

4 . SPECIAL ASSESSMENT. Pr io r to the ent ry of a plea

pursuant to t h i s plea agreement, Mr. Harrah wil l tender a check or

money order to the Clerk of the United Sta tes D i s t r i c t Court fo r

$200, which check o r money order s ha l l i nd ica te on i t s face thename of defendant and the case number. The sum received by theClerk wi l l be appl ied toward the specia l assessment imposed by theCourt a t sentenc ing . Mr. Harrah wi l l ob ta in a rece ip t o f paymentfrom the Clerk and wil l t ender a copy of such r e c e ip t to the UnitedSta tes , to be f i l ed with the Court as an at tachment to t h i s plea

agreement. I f Mr. Harrah f a i l s to provide proof of payment of thespec ia l assessment p r i o r to or a t the plea proceeding, the UnitedSta tes wi l l have the r i gh t to void th i s plea agreement. In theevent t h i s plea agreement becomes void a f t e r payment of the spec ia l

assessment, such sum s ha l l be promptly re turned to Mr. Harrah.

5. PAYMENT OF MONETARY PENALTIES. Mr. Harrah agrees not to

o b je c t t o the Dis t r i c t Court order ing a l l monetary pena l t i e s

( including the spec ia l assessment, f ine , cour t cos t s , and anyr e s t i t u t ion t ha t does not exceed the amount s e t fo r th in t h i s plea

agreement) to be due and payable in fu l l immediately and subject to

immediate enforcement by the United Sta tes . So long as themonetary penal t i e s are ordered to be due and payable i n fu l l

immediately, Mr. Harrah fu r the r agrees not to obj ec t to theDi s t r i c t Court imposing any schedule of payments as merely aminimum schedule of payments and not the only method, nor a

l imi ta t ion on the methods, avai lab le to the United States to

enforce the judgment.

6. COOPERATION. Mr. Harrah wi l l be fo r th r igh t and t r u th fu l

with th i s of f ice and o ther law enforcement agencies with regard toa l l i nqu i r i e s made pursuant to th i s agreement, and wi l l gives igned, sworn sta tements and grand ju ry and t r i a l test imony uponrequest of the United Sta tes . In complying with t h i s provis ion ,

Iefendant I S

i n i t i a l s



Mary Lou NewbergerMarch 16, 2011

Re: Thomas Harrah

Mr. Harrah may have counsel presen t except when appear ing before agrand jury .

7. USE IMMUNITY. Unless t h i s agreement becomes void due to

a v io la t ion of any of i t s terms by Mr. Harrah, and except asexpress ly provided fo r in paragraph 9 below, nothing contained in

any s tatement o r tes t imony provided by Mr. Harrah, pursuan t to th i s

agreement, o r any evidence developed therefrom, w i l l be usedaga ins t him, d i rec t l y o r ind i rec t ly , in any fu r t h e r cr iminalprosecut ions o r in determining the appl icable gu ide l ine range underthe Federa l Sentencing Guidel ines .

8 . LIMITATIONS ON IMMUNITY. Nothing conta ined in t h i s

agreement r e s t r i c t s th e use of informat ion obta ined by the UnitedSta tes from an independent, l eg i t imate source, separate and apar t

from any in format ion and tes t imony provided pursuan t to t h i s

agreement, in determining the appl icable gu ide l ine range o r in

prosecut ing Mr. Harrah fo r any v io la t ions of f edera l o r s t a t e laws.The United Sta tes reserves the r i gh t to prosecute Mr. Harrah fo r

per jury o r fa l se s tatement if such a s i t ua t i on should occurpursuant to t h i s agreement.

9. STIPULATION OF FACTS AND WAIVER OF FED. R. EVID. 410 . The

United Sta tes and Mr. Harrah s t ipu la te and agree t h a t the fac t s

comprising the offense of convic t ion and r e levan t conduct includethe fac t s ou t l ined in the "St ipula t ion of Facts ," a copy of whichi s at tached hereto as "Plea Agreement Exhibi t B."

Mr. Harrah agrees t ha t if he withdraws from t h i s agreement, o r

th i s agreement i s voided as a r e su l t of a breach of i t s terms by

Mr. Harrah, and he i s subsequently t r i ed on any of the charges in

the informat ion, the United Sta tes may use and in t roduce theSt ipu la t ion of Facts in the United Sta tes case - in -ch ie f , i n cross

examination of Mr. Harrah o r of any of h is witnesses , o r in

r e b u t t a l of any tes t imony in t roduced by Mr. Harrah o r on h is

beha l f . Mr. Harrah knowingly and vo lun ta r i ly waives, see UnitedSta tes v. Mezzanat to, 513 U.S. 196 (1995), any r i g h t he has

pursuant to Fed. R. Evid. 410 t ha t would p ro h i b i t such use of theSt ipu la t ion of Fac ts . I f the Court does not accep t the p lea

agreement through no f au l t of the defendant , o r th e Court dec la res

the agreement void due to a breach of i t s terms by the United

I):fendant r S

i n i t i a l s



Mary Lou NewbergerMarch 16, 2011

Re: Thomas Harrah

Sta tes , the St ipu la t ion of Facts cannot be used by the UnitedSta tes .

The United Sta tes and Mr. Harrah unders tand and acknowledget ha t the Court i s no t bound by the St ipu la t ion of Facts and tha t i fsome o r a l l o f the St ipu la t ion of Fac t s i s not accepted by theCourt , the par t i e s w i l l no t have the r i g h t to withdraw from thep lea agreement.

10 . AGREEMENT ON SENTENCING GUIDELINES. The United Sta tes

and Mr.

Sta tes

agreement Exhibi t

Harrah agree t h a t

Sentencing Guide l"A").

theines

fol lowing provis ions of

apply to the informathe Unitedt ion (plea

a. Count One

USSG § 2B l . l

Base offense l eve l 6

b. Count Two

USSG § 2B l . l

Base of fense l eve l 6

No adjus tments

Adjusted offense l eve l 6

The United Sta tes and Mr. Harrah have not reached an agreementon whether spec i f ic offense c ha ra c t e r i s t i c s and o th e r adjustmentsapply to Count One, and i n pa r t i c u l a r whether USSG § 2B1.1{b) (13)

and USSG § 3C1.1 apply. Therefore , the par t i e s do not agree on anadjus ted offense l e v e l fo r Count One.

Regardless o f the reso lu t ion of the disputed Sentencing

Guidel ines i s sues , the United Sta tes and Mr. Harrah agree tha t i fthe fo l lowing condi t ions a re met Mr. Harrah should be grantedacceptance of re spons ib i l i ty under USSG § 3E1.1:

[email protected]'s i n i t i a l s

mailto:[email protected]'s

mailto:[email protected]'s



,

..1 - ~ ,

Mary Lou Newberger

March 16, 2011

Re: Thomas Harrah

(a ) Mr.Harrah must

fu l ly complywith a l l of

th eterms of

t h i s

plea agreement and t ru t h fu l l y admit the offenses of convic t ion andadmit o r not fa l se ly deny any add i t iona l r e levan t conduct;

(b) Mr. Harrah must not vio la te any s t a t e o r fede ra l lawpending f i na l d i spos i t ion of h is case .

The United Sta tes and Mr. Harrah acknowledge and understandt ha t the Court and Proba t ion Off ice a re no t bound by th e par t i e s '

ca lcu la t ion of th e United Sta tes Sentencing Guide l ines se t fo r th

above and t ha t the par t i e s s h a l l not have the r i g h t to withdrawfrom the p lea agreement due to a disagreement with the Court · sca lcu la t ion of the appropr ia te guide l ine range.

11. WAIVER OF APPEAL AND COLLATERAL ATTACK. Th e par t ie s

re ta in the r i g h t to seek appe l la te review of the D i s t r i c t Cour t ' s

determina t ion of the Sentencing Guidel ine range, if an objec t ion i sproper ly preserved. Nonetheless , Mr. Hannah knowingly andvo lun ta r i ly waives h is r i gh t to seek appe l l a t e review of any

sentence of imprisonment or f ine imposed by the D i s t r i c t Cour t onany ground, so long as t ha t sentence i s below o r within the

Sentencing Guidel ine range determined by th e D i s t r i c t Court pr io r

to any depar ture o r var iance . S imi la r ly , the United Sta tes waivesi t s r i g h t to seek appe l la te review of any sen tence of imprisonmentor f ine imposed by the Di s t r i c t Court on any o th e r ground, so long

as t h a t sentence i s within o r above the Sentencing Guidel ine rangedetermined by the D i s t r i c t Court p r i o r to any depar ture o r

var iance .

Mr. Hannah also knowingly and vo lun ta r i ly waives th e r i g h t to

cha l lenge h is gu i l t y p lea and h is convic t ion r e s u l t i ng from t h i s

plea agreement , and any sentence imposed fo r the convict ion , in

co l l a t e ra l a t t ack , inc luding but not l imi ted to a motion broughtunder 28 U.S.C. § 2255.

The waivers noted above s ha l l not apply to a pos t -convic t ion

co l l a t e ra l a t t ack o r d i r e c t appeal based on a cla im of i ne f fec t ive

as s i s tance of counse l .




.,

Mary Lou Newberger

March 16, 2011

Re: Thomas Harrah

12. WAIVER OF FOIA AND PRIVACY RIGHT. Mr. Harrah knowingly

and vo lun ta r i ly waives a l l r igh ts , whether asse r t ed d i r e c t ly o r bya r ep resen ta t ive , to reques t o r rece ive from any department o r

agency of the United States any records per t a in ing to thei nves t iga t ion o r prosecut ion of th i s case , inc luding without anyl imi t a t ion any records t h a t may be sought under th e Freedom ofInformation Act (FOIA), 5 U.S.C. § 552, o r the Privacy Act of 1974,5 U.S.C. § 552a, fol lowing f i na l d i spos i t ion .

13. FINAL DISPOSITION. The mat te r of sentencing i s within thesole disc re t ion of the Court . The United Sta tes has made no

r ep resen ta t ions o r promises as to a spec i f i c sen tence . The UnitedSta tes rese rves the r i gh t to :

(a) Inform the Probat ion Off ice and the Court of a l l re levant

fac t s and conduct;

(b) Presen t evidence and argument r e levan t

enumerated in 18 U.S.C. § 3553{a) i

to the f ac to r s

(c ) Respond to ques t ions ra i sed by the Court ;

(d) Correc t

repor t ;

inaccurac ies o r inadequacies in the presentence

(e) Respond to s tatements made

o f Mr. Harrah;to the Court by o r on beha l f

( f ) Advise the Court concerning the nature and ex ten t of Mr.

Harrah ' s cooperat ion; and

(g) Address the Court regarding theacceptance of respons ib i l i ty .

i s sue of Mr. Harrah ' s

14. VOIDING OF AGREEMENT. I f e i t h e r the United States o r Mr.

Harrah vio la te s th e terms of t h i s agreement , the o ther pa r ty wi l lhave the r i g h t to void t h i s agreement . I f the Court re fuses to

accept t h i s agreement , it s ha l l be void .




Mary Lou Newberger

March 16, 2011

page 8 Re: Thomas Harrah

15 .BNTIRETY

OF AGREBMENT. This wri t t en agreementcons t i t u t e s the en t i r e agreement between the uni ted Sta t e s and Mr.

Harrah in t h i s matter . There are no agreements , understandings or

recommendations as to any o the r pending or fu ture charges agains t

Mr. Harrah in any Court othe r than the United Sta t e s D i s t r i c t Courtfo r the Southern Dis t r i c t of West Virg in ia .

Acknowledged and agreed to on beha l f of the United Sta tes :

R. BOOTH GOODWIN II

United : t a t e s A ~ ~ A r ~ y By: j 7!WL_,

BLAIRE L. MALKIN

Ass i s tan t United Sta t e s AttorneyBLM/fgc

I hereby acknowledge by my i n i t i a l s a t the bottom o f each of theforegoing pages and by my s ignature on the l a s t page of t h i s e igh t

page agreement t h a t I have read and carefu l ly discussed every pa r t

of it with my a t to rney , t ha t I understand th e terms of t h i s

agreement, and t h a t I volunta r i ly agree to those terms andcondi t ions se t for th in the agreement. I fu r t he r acknowledge t h a t

my a t to rney has advised me of my r i gh t s , poss ib le defenses, the

Sentencing Guidel ine prov i s ions , and the consequences o f enter ing

in to t h i s agreement, t ha t no promises or inducements have been made

to me o the r than those in t h i s agreement, and t ha t no one hasth rea tened me o r forced me in any way to en ter in to t h i s agreement.

Final ly , I am sa t i s f i ed with the represen ta t ion o f my at torney in

t h i s mat ter .

THOMAS HARRAH DaLe s igned

Counsel fo r DefendantDate Signed

71tHl)[email protected] I S

i n i t i a l s

mailto:l)[email protected]

mailto:l)[email protected]



\ .

UNITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF WEST VIRGINIABECKLEY DIVISION

UNITED STATES OF AMERICA

v .

THOMAS HARRAH

CRIMINAL NO.3018

U.S.C.U.S.C.

§

§

820(f)1001

The United Sta tes Attorney Charges:

COUNT ONE

(False Statement, Representation,and Cert i f i ca t i on in MSHA Document)

Background

1. At a l l r e levan t t imes, Performance Coal Company, LLC, was

engaged in the bus iness of opera t ing an underground mine in Raleigh

County, West Virgin ia , within the Southern Dis t r i c t of West

Virgin ia , known as the Upper Big Branch Mine, whose products and

opera t ions af fec ted i n t e r s t a t e commerce. As such, Performance Coal

Company, LLC, was sub jec t to the provis ions of the Federal Mine

Safe ty and Health Act of 1977 (lithe Mine Act") and to the

regula t ions promulgated thereunder , inc luding the mandatory safe ty

s tandards in T i t l e 30, Code of Federal Regulat ions .

2. At a l l r e levan t t imes, Ti t l e 30, Code of Federa l

Regulat ions , Sect ion 75.360 required t ha t a c e r t i f i e d person

conduct a p r e - s h i f t examination of any underground area where any

person was scheduled to work or t r a ve l . I t a l so required tha t the

"PLEA AGREEMENT EXHIBIT A"



ce r t i f i ed person ce r t i fy t ha t the examination was completed. Ti t l e

30, Code of Federal Regulat ions , Sect ion 75.362 required t ha t a

ce r t i f i ed person conduct an on-sh i f t examination of each sec t ion

where any person was ass igned to work during the s h i f t or where

mechanized mining equipment was being i n s t a l l ed or removed dur ing

a sh i f t . I t also required t ha t the ce r t i f i ed person ce r t i fy tha t

the examination had been completed. Further , Ti t l e 30, Code of

Federal Regulat ions , Sect ion 75.100 def ined a c e r t i f i e d person as

one who had been ce r t i f i ed as a mine foreman, an ass i s t an t mine

foreman, o r a pre - sh i f t examiner.

3. To become c e r t i f i e d as an a s s i s t a n t mine foreman, one

must take and pass an examination. Defendant THOMAS HARRAH had

taken and fa i l ed th e ass i s t an t mine foreman's examination in

August, 2007.

4. Pr io r to January 2008, defendant THOMAS HARRAH began

working fo r Performance Coal Company, LLC.

5. Sta r t ing in or around January 2008 and up to and

including August 2009, defendant THOMAS HARRAH performed foreman

dut ies , inc luding conduct ing p r e - s h i f t and on- s h i f t examinations,

a t the Upper Big Branch Mine. During t h i s time per iod , defendant

THOMAS HARRAH did not have a mine foreman o r ass i s t an t mine

foreman's c e r t i f i c a t e and was therefore not qua l i f i ed to perform

these examinat ions. Defendant THOMAS HARRAH knew a t t h a t time t ha t

he d id not have a foreman Is ce r t i f i ca t e , and t ha t he was not

qua l i f i ed to perform these examinat ions.

2



t .

6. Between January 2008 and August 2009, defendant THOMAS

HARRAH signed numerous pre - sh i f t and o n - sh i f t r epor t s ce r t i fy ing

tha t he had proper ly examined th e pumps, the number one sect ion ,

and the number th ree s ec t ion .

7. On each p r e - s h i f t and o n - sh i f t repor t t ha t he s igned,

defendant THOMAS HARRAH fa l se ly l i s t ed h is foreman 's ce r t i f i ca t i on

number as 38690. Defendant THOMAS HARRAH knew t ha t t h i s foreman's

number d id no t belong to him. In fac t , th e number belonged to

another ind iv idua l .

The Violation

8. On o r about December 16, 2008, a t o r near Montcoal,

Raleigh County, West Virg in ia , wi th in the Southern Di s t r i c t of West

Virginia , defendan t THOMAS HARRAH knowingly made a fa l se s ta tement ,

r ep resen ta t ion , and ce r t i f i ca t i on in a record , r epor t and o ther

document f i l ed and requi red to be maintained pursuan t to Chapter 22

of Ti t l e 30 of the United Sta tes Code, t ha t i s : defendant THOMAS

HARRAH fa l se ly s t a t e d , represented , and ce r t i f i ed in th e pre - s h i f t

repor t for th e Upper Big Branch Mine t h a t he was ce r t i f i ed to

proper ly examine the number 3 sec t ion of the Upper Big Branch Mine

by signing h is name as a pre - sh i f t examiner and enter ing a

foreman's c e r t i f i c a t e number when, i n fac t , and as defendant THOMAS

HARRAH knew a t t ha t t ime, he was not c e r t i f i e d to make such an

examination.

In vio la t ion of Ti t l e 30, uni ted Sta tes Code, Sect ion 820(f} .

3



'.

he used to s ign the p r e - s h i f t and o n - sh i f t examinat ion books a t th e

Upper Big Branch mine.

In v i o l a t i o n o f T i t l e 18, United S ta t e s Code, Sect ion 1001.


R. BOOTH GOODWIN I IUnited S ta t e s Attorney

By: B ~ ~ I N 1 ! l A ~ Ass i s t an t United S ta t e s Attorney

5



UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF WEST VIRGINIA

BECKLEY


v . CRIMINAL NO.

THOMAS HARRAH

STIPULATION OF FACTS

The uni ted Sta tes and Thomas Harrah s t i pu l a t e and agree t ha t

the fac t s compris ing the offenses of convic t ion ( the two-countinformat ion in the Southern Di s t r i c t of West Virginia ) and some ofthe r e levan t conduct fo r t ha t offense inc lude the fo l lowing:

COUNT ONE:

From December 2007 u n t i l August 2009, Thomas Harrah (Harrah)was employed by Performance Coal Company a t the Upper Big BranchMine. Throughout t h a t t ime per iod , Performance Coal Company

("Performance") opera ted an underground mine, known as the Upper

Big Branch Mine ( the limine"), located in Montcoal, Raleigh County,

West Virgin ia , in the Southern D i s t r i c t of West Virgin ia . The

mine ' s products and opera t ions af fec ted i n t e r s t a t e commerce.

Therefore , Performance was sub jec t to the provis ions of the FederalMine Safety and Heal th Act of 1977 (" the Mine Act") and to theregula t ions promulgated the reunder , inc luding the mandatory sa fe ty

s tandards in Ti t l e 30, Code of Federal Regulat ions .

Those sa fe ty s tandards included th e requi rement t ha t a

ce r t i f i ed person, t ha t a mine foreman o r a s s i s t a n t mine foreman,conduct p r e - s h i f t and on- s h i f t examinat ions. A pre - sh i f t

examination had to be conducted of any underground area where anyperson was scheduled to work o r t r a ve l . A c e r t i f i e d person had to

ce r t i fy t ha t such an exam was completed. An on- s h i f t examinationwas required to be completed on any sect ion where a person i s

assigned to work dur ing a s h i f t . A ce r t i f i ed person had to ce r t i fy

t ha t the on- s h i f t examinat ion was completed.

From January 2008 to August 2009, Harrah signed forms tha t

ce r t i f i ed t ha t p r e - s h i f t and on-sh i f t exams were completed on thenumber one sec t ion , the number th ree s ec t ion , and the pumps a t the

mine. On each of these ce r t i f i ca t i ons , Harrah f a l s e ly l i s t ed h is

foreman's ce r t i f i ca t ion number as 38690. Throughout the t ime t ha t

Harrah used t h i s foreman 's number, he knew it was no t h is number

"PLEA AGREEMENT EXHIBIT B"



and he knew he was not qua l i f i ed to perform th e examinat ions o r to

ce r t i fy t ha t they had been performed. Harrah knew he was notqua l i f i ed as a foreman o r an ass i s t an t foreman, because he hadfa i led the a s s i s t a n t foreman 's examinat ion in August 2007. Despi tehaving fa i led the exam, Harrah made up a foreman's number, and usedth i s number to ce r t i fy examinat ion books. He used t h i s number on

over 200 occas ions , including on December 16, 2008, where hece r t i f i ed t ha t he had conducted a p r e - s h i f t examinat ion on thenumber t h ree sec t ion of the mine.

In August 2009, Harrah was t rans fe r red from Performance to theMarfork Coal Company ("Marfork"). Marfork was engaged in thebusiness o f opera t ing the Sl ip Ridge Cedar Grove Mine ("Sl ip

Ridgell) , whose products and opera t ions af fec ted i n t e r s t a t e

commerce. Therefore , Marfork was subject to the Mine Act and to

the r egu la t ions promulgated the reunder . Sl ip Ridge i s located in

Raleigh County, west Virgin ia , within the Southern D i s t r i c t o f West

Virgin ia . While employed a t Sl ip Ridge, Harrah used a foreman'snumber t ha t d id no t belong to him, to ce r t i fy t ha t p r e - s h i f t ando n - sh i f t examinat ions had been proper ly completed. While employeda t Sl ip Ridge, Harrah used a d i f f e r e n t foreman 's number from t ha t

which he had used a t Upper Big Branch. He used t h i s second fa l se

number approximately th ree t imes dur ing one s h i f t . He knew when heused tha t number t h a t he was not ce r t i f i ed as a foreman o r

ass i s t an t foreman, and he knew t h a t the number he was using was notass igned to him.

COUNT TWO:

On October 22, 2010, Harrah was in terv iewed by a FederalBureau of Inves t iga t ion (FBI) spec ia l agent and by a spec ia l

i nves t iga to r with the Mine Safe ty and Heal th Adminis t rat ion (MSHA) ,a t h is res idence in Comfort, Boone County, West Virg in ia . At t ha t

t ime he was quest ioned about h is use of a mine foreman 's number

t ha t d id not belong to him. In t h i s in te rv iew Harrah s t a t e d t ha t

he had taken and fa i led the mine foreman's examinat ion. When here turned to work a t Performance Coal, he informed an of f i ce r ofPerformance Coal t ha t he had fa i led the examinat ion. Harrah thens t a t e d t ha t the o f f i c e r provided him a phone number to ca l l .

Harrah fu r the r s t a t e d t ha t when he ca l l ed t h i s number the person onthe phone provided him with a mine foreman 's ce r t i f i ca t ion number.

He s ta ted tha t he was a l so faxed a copy of a mine foreman 's card,bu t t ha t he l o s t th i s card .

On October 28, 2010, Harrah was re in te rv iewed by the FBI andMSHA. On t ha t date , he had admit ted t h a t he had been dishonestwith the FBI and MSHA agent a t the f i r s t in te rv iew. When he fa i led

the examination, th e Performance Coal o f f i c e r d id not give him a

"PLEA AGREEMEN"T EXHIBIT B"



\

number to ca l l , but in s tead discussed with him the poss i b i l i t y ofre taking the examinat ion. Harrah did not re take the examination.Ins tead , a couple weeks a f t e r learn ing he had fa i led theexaminat ion, he reviewed the examinat ion book, and saw theforeman's numbers fo r those who had recen t ly passed theexamination. He changed a couple of d i g i t s on one of those numbers

and a couple of months l a t e r he began using t ha t number to s ignpre - sh i f t and on- s h i f t examination books a t the Upper Big Branch

mine.

When he was in te rv iewed by the FBI spec ia l agen t and MSHA

spec ia l i nves t iga to r on October 22, 2010, he knew tha t theinformat ion he provided them about how he had received the fa l se

foreman's number was unt rue .

This St ipu la t ion of Facts does not conta in each and every fac t

to the United Sta tes concerning the scope and e f f e c t of h is

re levant conduct, and i s s e t for th fo r the l imi ted purpose ofes tabl i sh ing a fac tua l bas i s fo r the defendant ' s gu i l t y plea .

S t ipu la ted and agreed to :

3 /;;;. ( [ , I,THOMAS HARRAH DateDefendant

EWBERGER

Counsel fo r Defendant

BLAIRE L. MALKIN

Ass is tan t United

21 , t l ~ v c h 7--01/Date

Date

"PLEA AGREEMElil'T EXHIBIT B"

harrah executed plea agreement

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