Merced County grand jury indicts 3 leaders of Firm Build

Authorities say students were exposed to asbestos during work at Castle.
By VICTOR A. PATTON
vpatton@mercedsun-star.com

Three former Firm Build executives accused of knowingly exposing high school students to cancer-causing asbestos have been indicted on several charges of child endangerment by a Merced County grand jury.

The grand jury indictments in the case against the three men -- Rudy Buendia III, 47, Patrick Bowman, 44, and Joseph Cuellar, 71 -- came Friday afternoon after three weeks of testimony by more than 80 witnesses.

At the time the trio was arrested on the charges in May, five former students allegedly exposed to asbestos between August 2005 and March 2006 had come forward. Since then, that number has increased to nine.

The grand jury also indicted the trio on a host of additional charges, including grand theft, falsifying corporate reports, perjury and forgery, stemming from the district attorney's 2008 financial investigation of Firm Build.

All three men have steadfastly denied the allegations and have pleaded not guilty.

Merced County District Attorney Larry Morse II said his office decided to take the case to a grand jury, rather than a preliminary hearing because of the case's complexity and the number of counts involved.

Deputy District Attorney Walter Wall, prosecutor in the case, said the grand jury added 15 additional counts to the indictment besides the 52 counts sought by prosecutors. "There was overwhelming evidence of guilt. That's why the grand jury added on counts over and above what we recommended," Wall said.

In a preliminary hearing, a judge decides whether enough evidence exists to allow a case to proceed to trial. In California, prosecutors have the option of presenting their evidence to a criminal grand jury, rather than a judge. The county's grand jury is a panel composed of 19 citizens.

The grand jury indicted Buendia and Cuellar on 62 counts, while Bowman was indicted on 52 counts.

The nine victims, who were around 16 and 17 years old at the time, allegedly removed asbestos, without the required safety equipment, on numerous occasions from the Automotive Training Center, at the Castle Commerce Center, under the direction of Firm Build.

The defendants allegedly used the students to remove the asbestos from the building under the guise of involving at-risk students in work experience and job training programs. The students allegedly removed asbestos floor tiles and insulation from pipes inside the old military building, creating an airborne cloud of asbestos fibers they may have inhaled.

At the time, Bowman was Firm Build's board president and coordinator of the Workplace Learning Academy, created at Valley Community School to teach trade skills for at-risk students. Buendia was the nonprofit's project manager, while Cuellar was an administrative manager, according to D.A. investigators.

Morse said the investigation points to "an appalling lack of oversight" and "sweeping negligence" at the highest levels of the Merced County Office of Education, in terms of its relationship with Firm Build and the office's responsibility to students under their care.

Asked to elaborate about the lack of oversight and those involved other than the defendants, Morse said he couldn't comment further because of the ongoing investigation. "There is ample information that the safeguards that should have been in place, or were in place to protect these students, were either ignored or marginalized."

Nathan Quevedo, spokesman for the Merced County Office of Education, said his office has "cooperated with all requests from the district attorney's office."

Quevedo also said an outside investigator, Sacramento attorney Donna Matties, conducted her own six-week investigation into the asbestos allegations. "MCOE hired an outside investigator to ensure the integrity of the investigation and remove any perception of a conflict of interest or bias," Quevedo said.

Quevedo said her report is confidential because it's a personnel matter, but added, "We cannot substantiate the allegations that students who worked at the (Automotive Training Center) were exposed to asbestos."

Bowman is employed as a math and algebra instructor at Valley Community School in Los Banos, Quevedo said.

Defense attorneys in the case say their clients maintain their innocence. Ralph Temple, Bowman's attorney, said his client was a volunteer who was asked to serve on Firm Build's board. "He never was paid a dime," Temple said. "He never got any money out of Firm Build whatsoever."

Temple said his client, as a schoolteacher, would never "harm anybody" or expose students to asbestos. Temple added his client was only an intermediary between MCOE and Firm Build, adding that he's an educator, not an expert in contracting or construction. "If there was a problem (with asbestos), the people who were qualified to take care of it were supposed to do that," Temple said.

Kirk McAllister, Buendia's attorney, said he believes Morse's office chose to pursue the case in front of a grand jury because of the procedural advantages allowed by the prosecution. Unlike a preliminary hearing, defense attorneys cannot cross-examine witnesses or ask questions.

Grand jury hearings, unlike preliminary hearings, are also closed to defense attorneys and the public. "This is a regurgitation of the charges that Mr. Buendia has been fighting for the last two years," McAllister said. "If Mr. Wall's evidence was so overwhelming, why will he only show it behind the closed doors of a grand jury, where everything looks overwhelming in the eyes of a prosecutor, instead of testing it in court as we've been trying to do at a preliminary hearing?"

McAllister said the defense has tried getting the case more than once to a preliminary hearing. "Each time we did, there was some roadblock thrown in front of us by the district attorney, the last being them stepping in front of that open courtroom process by hiding behind the closed doors of the grand jury."

Cuellar's attorney, Douglas Foster, did not return calls placed to his office.

Firm Build was launched in 1998 as a program of the Merced County Housing Authority to modernize its stock of public housing while giving residents marketable skills. The nonprofit contracted with MCOE to provide instructors to teach at-risk students in the Regional Occupational Program (ROP).

MCOE signed a lease for the 2245 Jetstream Drive building in June 2005, with the intent to use vocational students to remodel the facility into an automotive teaching center. The documents revealed that asbestos, lead-based paint, black mold and groundwater contamination were present at the site.

The lease was negotiated by Bowman and his assistant Jack Weaver, who is now deceased, over the course of 18 months, according to D.A.'s office investigators. Firm Build's leaders allegedly lied to its board, the county and state regulators about the nature of the renovation. Firm Build's application for a county building permit listed minimal work, such as painting walls and installing a garage door. Still, D.A. investigators say teens soon started removing the carcinogenic material from the building.

In addition to the state charges, all three defendants face federal charges for allegedly submitting false statements to the San Joaquin Valley Unified Air Pollution Control District, several violations of the Clean Air Act and knowingly endangering others by releasing asbestos into the air.

Firm Build went bankrupt in mid-2007, leaving bills and loans unpaid with the Housing Authority and subcontractors. That prompted a District Attorney's Office financial investigation that lasted 15 months and culminated in the defendants' arrests on several charges, including embezzlement, diversion of construction funds and grand theft.

In November 2009, the District Attorney's Office launched its investigation into the asbestos allegations after receiving a witness tip from an electrician.

If convicted on the federal charges, the trio faces 15 years in prison. If convicted on the state charges, they face around 30 years in prison.

All three defendants remain free on bail. Their next hearing in Merced County Superior Court is scheduled for Dec. 10.

Reporter Victor A. Patton can be reached at (209) 385-2431 or vpatton@mercedsun-star.com.

http://www.mercedsunstar.com/2010/11/24/1666434/grand-jury-indicts-3-leaders-of.html