June 20, 2014

Local prosecutors say they’ll withdraw plea agreement in Firm Build case

Merced County prosecutors this week said they plan on withdrawing a plea agreement reached with one of the three former Firm Build executives who exposed dozens of high school students to asbestos.

Merced County prosecutors this week said they plan on withdrawing a plea agreement reached with one of the three former Firm Build executives who exposed dozens of high school students to asbestos.

Rudy Buendia III was scheduled to be sentenced Thursday in Merced County Superior Court for breaking state asbestos laws. Buendia and the two other former managers for the now-defunct nonprofit – Patrick Bowman and Joseph Cuellar – were convicted in both federal and state court after reaching plea agreements with prosecutors. Under the terms of the agreement, the trio were each scheduled to serve a total of roughly two years in federal prison, after pleading no contest in both state and federal court.

During Thursday’s sentencing hearing, Merced County Deputy District Attorney Walter Wall, who is prosecuting the state’s Firm Build case with Deputy Attorney General Brett Morris, told Judge John Kirihara he plans to file a motion to withdraw Buendia’s no contest plea agreement in the state case.

Wall said the motion to withdraw the plea agreement is also necessary because Buendia has made statements outside of court maintaining his innocence, despite a no contest plea entered in Merced County Superior Court last year. Wall claimed he was recently approached personally by Buendia while standing in line at the Rancho San Miguel Market in Merced. Wall said Buendia said something to the effect of “You know, I did not do this.”

During Thursday’s hearing, Wall also asked Buendia to make a statement acknowledging guilt for the crimes he pleaded to. Buendia did not provide that statement, although defense attorney Kirk McAllister said his client was prepared to proceed with sentencing. Wall also told Judge Kirihara that he’s heard Buendia has also told others in the community that he’s innocent.

Merced County District Attorney Larry Morse II said he is no longer willing to pursue Buendia’s plea agreement, given the supposed statements the defendant has made about his innocence. Although Buendia pleaded no contest, Morse said the court still treats the plea the same as guilty. “We’re not in the habit of taking (guilty or no contest) pleas from people who are maintaining their innocence,” Morse said. “You can’t make a plea and then turn around and say that ‘I didn’t do it.’ ”

McAllister, Buendia’s attorney, said his client already made a plea bargain and was ready to move forward with the sentencing as scheduled. “Rudy Buendia was ready to be sentenced today and we are disappointed that the prosecution has dragged this out once again,” McAllister said.

McAllister acknowledged his client did talk to Wall at the Rancho San Miguel Market, but disagreed with Wall’s claim that Buendia said, “You know, I did not do this.”

“According to Mr. Buendia, there was a conversation and that was not the conversation,” McAllister said. McAllister would not elaborate further about what was said during that alleged conversation. The defense attorney also took issue with Wall’s claim that others in the community have heard similar statements from Buendia. “I think this is the first time on record that a Merced attorney tries to back out of a deal because of the Merced rumor mill,” McAllister said.

Judge Kirihara set a Sept. 22 hearing to discuss the prosecution’s motion to withdraw the plea agreement.

Prosecutors say Buendia, Bowman and Cuellar used the high school students to remove asbestos, a cancer-causing substance, from a renovation project at Castle Commerce Center’s Automotive Training Center from September 2005 to March 2006.

The Merced County Office of Education had contracted with Firm Build to provide job training to high school students. Prosecutors say Bowman, Buendia and Cuellar cut corners on the renovation project by knowingly using the students to remove asbestos from the 2245 Jetstream Drive building, under the guise of involving them in work-experience and job-training programs. An investigator with the Environmental Protection Agency said about 68 people may have been exposed to asbestos at the Castle site.

Back in May last year, the trio pleaded no contest in Merced County Superior Court 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.

Prosecutors have said by entering the plea agreements in federal court the defendants essentially admitted to facts that would have been presented by the prosecution at trial, including that the trio knew the Jetstream Drive building contained asbestos, and that removing it would require a proper professional abatement company. State and federal laws explicitly limit asbestos removal to personnel who have been adequately trained and properly equipped with special safety gear and clothing. The students at the Automotive Training Center were said to have demolished tiles, pipe insulation and other items containing asbestos with only hammers and other basic tools.

Even if Merced County prosecutors are successful in withdrawing Buendia’s plea agreement, it won’t necessarily impact the federal government’s side of the Firm Build case. Buendia and the others in the case pleaded no contest in March last year to breaking federal asbestos laws. Buendia is scheduled to turn himself over to federal officials later this month to begin serving his sentence in federal prison.

If Buendia’s plea agreement is withdrawn in Merced County Superior Court and the case goes to trial, he could face around 60 charges and, if convicted, more than 30 years in state prison. Morse said his office is willing to take the case to trial.

“I am frankly very tired of hearing about poor Rudy Buendia,” Morse said. “The focus should be on the ROP kids who were exposed to asbestos because (Bowman, Cuellar and Buendia) were in over their heads financially and looking to cut some corners. Buendia is most assuredly not a victim. The kids who were exposed at Castle were the victims.”

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’s license that Firm Build used to find grant funding, procure contracts and obtain permits for projects, according to investigators.

Buendia isn’t the only Firm Build defendant whose case is still pending. Cuellar’s attorney, Anthony Capozzi, said he’s planning to file motions to withdraw his client’s no contest pleas in both the state and federal case. Bowman did not withdraw his no contest pleas in either state or federal court. He was formally sentenced by Kirihara on Thursday, and is scheduled to begin serving his sentence this month in federal prison.

Cuellar and Buendia both remain free, pending their ongoing court matters.


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