New plea deal urged for 3 in asbestos case

vpatton@mercedsun-star.comAugust 19, 2013 

— The judge in the case of three men convicted of violating federal asbestos laws recommended on Monday that attorneys negotiate a different plea agreement, saying the current sentencing arrangement is excessive.

In March, Rudy Buendia III, Patrick Bowman and Joseph Cuellar pleaded no contest to the federal charges for their role in a Merced County renovation project that prosecutors say exposed at least nine high school students to asbestos.

The trio, who were former executives with the nonprofit program Firm Build, also pleaded no contest in Merced County Superior Court in May to state felony charges of treating, handling or disposing of asbestos in a manner that caused an unreasonable risk of serious injury to students, with reckless disregard for their safety.

They were slated to serve about two years in prison on the state and federal charges. U.S. District Judge Lawrence J. O'Neill had been scheduled to sentence the men on Monday, but sentencing was postponed due to outstanding restitution issues.

Still, O'Neill allowed several supporters of Buendia, Bowman and Cuellar a chance to speak in court Monday. A large group supporting the trio attended Monday's hearing. About a half dozen spoke about the defendants' contributions to church life, community programs and various civic activities. None of the victims or their family members were present for Monday's hearing.

Afterward, O'Neill said he was "a bit concerned" about the plea agreements, saying he didn't agree with sending the men to prison. O'Neill said he sentences people frequently who "do not have a lot to give back" to the community.

"There are people who belong in prison. I see it all the time," O'Neill said. "I am not seeing it here."

The judge said he views the defendants as "three people who in a big way have a great deal to give back to the community.

O'Neill said putting the men in prison would prevent them from immediately paying restitution to the victims. However, O'Neill said his words were not meant to suggest the crimes weren't significant.

The judge suggested federal prosecutors and defense attorneys talk before the next hearing to determine if an alternative is possible.

Assistant U.S. Attorney Samuel Wong, who's prosecuting the case with Assistant U.S. Attorney Melanie Alsworth, told O'Neill he would file a sentencing memorandum about the issues. Calls were placed to Wong and Alsworth, but neither could be reached by press time.

Cuellar's attorney Douglas Foster applauded O'Neill's assessment of the defendants. He said it's relatively uncommon for a judge to disagree with a plea deal. "It's pretty unprecedented to see that. It matched what we've been saying all along."

Foster added his client is "a good man who does not belong in prison."

Buendia's attorney Jeremy Kroger and Bowman's attorney Cadee Peters declined comment after Monday's hearing.

Merced County District Attorney Larry Morse II said it's too early to tell whether Monday's federal court hearing will affect the state case in Merced County Superior Court. The men are scheduled to appear in Merced County Superior Court for their sentencing hearing on the state charges on Sept. 6.

Morse disagreed with O'Neill's statements, and added the three men entered the plea agreements with full knowledge of the consequences.

"I am shocked that a federal judge would make the comments attributed to him without having heard from the victims of these crimes," Morse said. "I can assure you, based on years of dealing with this case, that the conduct and actions of the defendants devastated the lives of many completely innocent and trusting high school students, among others."

More than two dozen supporters were in court Monday in support of Buendia, Cuellar and Bowman. Among them were Timothy Pistoresi, a senior vice president with UBS Financial Services. Pistoresi told Judge O'Neill he's known Buendia for five or six years through Bible study at Yosemite Church.

"He's a good man. He loves the Lord. He loves his wife and his kids," Pistoresi said.

Benjamin Cuellar, a dean emeritus of health and human services at California State University, Fresno, asked O'Neill to consider Joseph Cuellar's age. He said the 73-year-old is active in his church peer group, and has provided guidance to his grandchildren.

"He's obviously no threat to society," Benjamin Cuellar said.

Michelle Kovalcheck, Bowman's sister, wept when describing her brother in front of O'Neill. She described Bowman as a positive role model and an "excellent example" of a human being. "He's the best person I know, and he's the best brother I could ever have," Kovalcheck told O'Neill.

According to court documents, the high school students and others removed and disposed of about 1,000 feet of pipe insulation and additional tank insulation at the Automotive Training Center, at 2245 Jetstream Drive in Atwater, which the defendants knew contained asbestos.

The students, according to the documents, removed the cancer-causing substance without proper protective equipment or taking proper safety measures.

When the incident occurred, Bowman was Firm Build's board president and coordinator of the Workplace Learning Academy, which was created at the Valley Community School to teach trade skills to at-risk students.

Buendia was Firm Build's project manager, who scouted and determined the nonprofit's projects.

Cuellar was an administrative manager who had the contractor license that Firm Build used to find grant funding, procure contracts and obtain permits for projects, according to investigators.

Firm Build was launched in 1998 as a program of the Merced County Housing Authority. It was established to allow the authority to modernize its stock of public housing while giving residents marketable skills.

City Editor Victor A. Patton can be reached at (209) 385-2431 or

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