9.Mark Bezy — Direct/Cross (Part 1)
627 linesMARK BEZY, duly sworn
COURT CLERK: Please state your name, your first and last name, and spell both for the record, if you would, and keep your voice up.
MARK BEZY: My name is Mark Bezy, B-E-Z-Y.
DIRECT EXAMINATION BY MR. BRUCK:
MR. BRUCK: Good afternoon, Mr. Bezy.
MARK BEZY: Good afternoon.
MR. BRUCK: Where do you live?
MARK BEZY: I live in San Tan Valley, Arizona.
MR. BRUCK: What sort of work have you done for most of your career?
MARK BEZY: Corrections.
MR. BRUCK: Are you retired as a career employee from the Federal Bureau of Prisons?
MARK BEZY: Yes, I am.
MR. BRUCK: And what is the Federal Bureau of Prisons?
MARK BEZY: It's the agency that houses offenders that have been convicted in federal courts and sentenced to periods of times of incarceration.
MR. BRUCK: How long did you work for the Federal Bureau of Prisons?
MARK BEZY: 28 and a half years.
MR. BRUCK: From what year to what year?
MARK BEZY: Started in 1978, and I retired in 2006.
MR. BRUCK: 2006?
MARK BEZY: Correct.
MR. BRUCK: And what, briefly, do you do now?
MARK BEZY: I own a correctional consulting company.
MR. BRUCK: And between the time of your retirement and the present day, have you also worked for a private prison corporation?
MARK BEZY: Yes. Before I retired, I was recruited by a private correctional company out of Boca Raton, Florida. They hired me to activate and run a thousand-bed sex offender unit in the state of Arizona; in Florence, Arizona. So I retired and went to work for them, activated it, worked it for a couple of years.
MR. BRUCK: In the course of your long career with the Bureau of Prisons and with the consulting work that you have done since, are you familiar with the programs, policies, operation of the Federal Bureau of Prisons?
MARK BEZY: Yes, I am.
MR. BRUCK: Did we ask you to assist us by providing the Court with information concerning restrictions on communications by certain federal prisoners?
MARK BEZY: Yes.
MR. BRUCK: Now, I'd like to ask you a little bit more about your career before we get started. Where did you -- what is your educational background?
MARK BEZY: I have a bachelor of science in criminal justice from the University of Nebraska in 1974.
MR. BRUCK: And I think you said you started at the BOP, Bureau of Prisons, in 1978?
MARK BEZY: Correct.
MR. BRUCK: I'm not going to ask you about each of your institutional assignments. There were a great many of them, weren't there?
MARK BEZY: Yes.
MR. BRUCK: And that's the way careers progress in the Bureau of Prisons, from -- people who advance go from institution to institution?
MARK BEZY: Yes.
MR. BRUCK: Acquiring more and more responsibility as they go?
MARK BEZY: Correct.
MR. BRUCK: And that was the pattern of your career?
MARK BEZY: Yes.
MR. BRUCK: All right. What types of institutions did you serve at as you advanced through the Bureau of Prisons?
MARK BEZY: I started in 1978 at the Federal Correctional Institute in Oxford, Wisconsin. It was a medium-security adult male facility.
MR. BRUCK: And briefly speaking, did you work at a variety of different institutions at different levels of security over the course of your career?
MARK BEZY: Yes. I've worked at camps, I worked at low, I worked at mediums, I worked at United States penitentiaries, and I've worked at federal medical centers.
MR. BRUCK: And have you also had occasion to work at various headquarters for the Bureau of Prisons in different parts of the country?
MARK BEZY: I worked in two regional offices, yes.
MR. BRUCK: Okay. Which administer prisons for large swathes of the country?
MARK BEZY: Yes. For the institutions within that region, we manage them.
MR. BRUCK: Would you tell us what the last three or four assignments that you had during the course of your career were?
MARK BEZY: Last three or four?
MR. BRUCK: Yeah.
MARK BEZY: It would have been -- I was appointed to the captain of the United States Penitentiary in Marion, Illinois -- if I can look at my dates, that's...
MR. BRUCK: Sure.
MARK BEZY: -- in 1992 to 1995, and at that time Marion was the most restricted facility and most controlled facility in the Bureau of Prisons. From there I went to the --
MR. BRUCK: Let me stop you there.
MARK BEZY: Excuse me.
MR. BRUCK: How many captains were there at Marion at this high-security prison?
MARK BEZY: There's only one captain at every facility.
MR. BRUCK: And you were it?
MARK BEZY: Yes.
MR. BRUCK: And the captain's job is what, in lay terms?
MARK BEZY: Well, all the correctional officers report to you; the lieutenants report to you. You have GS-9 lieutenants and GS-11 lieutenants, you have a security officer, an armorer, and investigative staff, which is known as the SIS office -- special investigative supervisors -- report to you.
MR. BRUCK: Very well. And you say that Marion was at that time the most -- sort of the super max for the entire country?
MARK BEZY: Yes.
MR. BRUCK: Okay. Where did you go after that?
MARK BEZY: After that I was promoted to the correctional service administrator in the North Central Regional Office in Kansas City.
MR. BRUCK: And during the time you were at Marion and during that next assignment, did a new maximum-security facility come online for the Bureau of Prisons nationwide?
MARK BEZY: Yes. In 1994 the bureau had been building, but they opened the -- what they call the administrative maximum facility at the Florence Correctional Complex in Florence, Colorado.
MR. BRUCK: And that's known, for short, as ADX?
MARK BEZY: ADX.
MR. BRUCK: Did you have any role in selecting the inmates who were transferred from Marion to ADX when it opened?
MARK BEZY: Yes. We moved probably 90 percent of our population from Marion to the ADX in small groups. We picked which groups would go first, second, third and fourth.
MR. BRUCK: Thank you. And just to move this along, did you also stay involved at ADX -- in matters involving ADX when you went to the regional headquarters after you left Marion?
MARK BEZY: Yes.
MR. BRUCK: Okay. And you had responsibilities for helping Marion -- ADX get underway?
MARK BEZY: Correct.
MR. BRUCK: All right. And what was the next assignment you had?
MARK BEZY: I was promoted to the associate warden at the United States Penitentiary in Leavenworth, Kansas.
MR. BRUCK: After that?
MARK BEZY: I was promoted to warden at the Federal Correctional Institution at Elton, Ohio.
MR. BRUCK: And after that?
MARK BEZY: I was promoted to warden at the United States Penitentiary in Terre Haute, Indiana.
MR. BRUCK: And was that your final assignment before you retired?
MARK BEZY: Yes.
MR. BRUCK: Did your -- was there any unusual feature of the institution -- of the Terre Haute institution for which you were responsible as warden?
MARK BEZY: Terre Haute already had an existing penitentiary on our property. It was a 70-year-old facility. It was becoming outdated. They were building and had built a brand-new state-of-the-art penitentiary on the compound, so when I arrived -- the current warden finished out his time as running the old penitentiary. He retired. Then I became the complex warden where I was over the new federal penitentiary, the federal correctional institution, and the federal prison camp.
MR. BRUCK: Is Terre Haute also the location -- or was it when you were there -- is it still today the location for the federal death row?
MARK BEZY: Yes.
MR. BRUCK: So you were the warden for death row as well as for the larger penitentiary?
MARK BEZY: Yes.
MR. BRUCK: Is there a specific procedure in the federal regulations that govern the Bureau of Prisons for ensuring the control, limitation or restriction on prisoners whom the government believes present a threat through inciting or communicating with other persons?
MARK BEZY: Yes, there is.
MR. BRUCK: Do you know offhand what the name of that regulation is?
MARK BEZY: It's special administrative measures. It's called -- commonly known as SAMs.
MR. BRUCK: Okay. And I don't know if it's that important, but do you know the citation for it?
MARK BEZY: It's 28 C.F.R. 501.3.
MR. BRUCK: Okay. That's Volume 28 of the Code of Federal Regulations, Chapter 501.3?
MARK BEZY: Correct.
MR. BRUCK: And that concerns something called special administrative measures?
MARK BEZY: Yes.
MR. BRUCK: And just to summarize -- we'll get into the details in a moment, but just to summarize, what are special administrative measures?
MARK BEZY: It's a mechanism to cut off an inmate's communication with the outside world, but there are few exceptions which are limited, restricted and approved by the FBI, the U.S. Attorney's Office.
MR. BRUCK: Is this procedure, the special administrative measures, or SAMs, frequently used for prisoners who are convicted of terrorist offenses?
MARK BEZY: Yes.
MR. BRUCK: Is it used for prisoners pretrial as well as after conviction?
MARK BEZY: Yes.
MR. BRUCK: And was the process of applying special administrative measures invoked in this case for Jahar Tsarnaev?
MARK BEZY: Yes, they were.
MR. BRUCK: Is he currently under special administrative measures?
MARK BEZY: Yes.
MR. BRUCK: Now, in summary, what does it mean so far as ensuring the prisoner's communication with the outside world is restricted or limited? What sorts of communications are we talking about?
MARK BEZY: We're talking about his written communication, his visitation, his correspondence, contact with the media, and contact with other inmates.
MR. BRUCK: Now, before we get into the details of that, can you describe, generally speaking, the procedure for deciding who -- when an inmate is subject to these restrictions under the SAMs? Who decides?
MARK BEZY: It's the FBI -- the U.S. Attorney's Office make a recommendation to the attorney general of the United States, and he's the approving official.
MR. BRUCK: All right. And I assume that there are several levels up the bureaucracy that this recommendation travels through. Is that correct?
MARK BEZY: Correct.
MR. BRUCK: Without going into all of that, when you say "the FBI," you mean the investigating agency on a given case?
MARK BEZY: Yes.
MR. BRUCK: Which in this case would be the FBI here in Boston?
MARK BEZY: Correct.
MR. BRUCK: And you referred to the U.S. Attorney's Office?
MARK BEZY: Yes.
MR. BRUCK: You mean by that the prosecuting agency in the case?
MARK BEZY: Yes.
MR. BRUCK: By which you mean the U.S. Attorney right here in Boston?
MARK BEZY: Correct.
MR. BRUCK: And those agencies make a recommendation which has to be approved by the attorney general?
MARK BEZY: Yes.
MR. BRUCK: And if it is, what happens?
MARK BEZY: If it is, then he's not allowed to have contact with the media or from the media; he's not allowed to have contact with any other inmates; his visitations are limited to immediate family, which consists of --
MR. BRUCK: We'll be getting into the details of that, but I guess my question was: The attorney general approves that SAMs are invoked, correct?
MARK BEZY: Correct.
MR. BRUCK: And when a -- now, the attorney general is the head of what agency?
MARK BEZY: Department of Justice.
MR. BRUCK: And what agency is the Bureau of Prisons a part of?
MARK BEZY: The Department of Justice.
MR. BRUCK: And what agency is the U.S. Attorney's Office part of?
MARK BEZY: The Department of Justice.
MR. BRUCK: And the FBI?
MARK BEZY: Department of Justice.
MR. BRUCK: Okay. So this whole procedure is internal to the prosecution, the FBI, the Justice Department?
MARK BEZY: Yes, it is.
MR. BRUCK: All right. When the SAMs is invoked, when an inmate is subject to the special administrative measures, how long does this order last, maximum?
MARK BEZY: They're good for one year, and then they're up for renewal.
MR. BRUCK: Is there any -- and -- so the SAMs can be renewed after one year?
MARK BEZY: Yes.
MR. BRUCK: And in this case involving Jahar Tsarnaev, have the SAMs already been renewed?
MARK BEZY: Yes, it has.
MR. BRUCK: All right. Is there any limitation to the number of years that this special administrative measures procedure can be renewed?
MARK BEZY: No, there's not.
MR. BRUCK: Now, when the special administrative measures are invoked and a prisoner is tried and convicted and sentenced to the Bureau of Prisons, does the bureau have a particular institution designed to house such prisoners and to implement these procedures?
MARK BEZY: Yes. It's the administrative maximum, the ADX in Colorado.
MR. BRUCK: The institution to which you referred a moment ago?
MR. BRUCK: Can we bring up 3253, please?
And we offer this.
THE COURT: Any objection?
BY MR. BRUCK:
MR. BRUCK: Do you see that photograph on the screen?
MARK BEZY: Yes, I do.
MR. BRUCK: Is that a photograph of the --
THE COURT: Just a minute, Mr. Bruck.
I take it there's no objection because I think we dealt with this earlier.
MR. MELLIN: No objection, your Honor.
THE COURT: Okay.
(Defense Exhibit No. 3253 received into evidence.)
BY MR. BRUCK:
MR. BRUCK: And is this a picture of the Florence, Colorado, prison complex?
MARK BEZY: Yes, it is.
MR. BRUCK: And is ADX, the administrative maximum, one of these prisons?
MARK BEZY: Yes.
MR. BRUCK: I'm going to enlarge this area. Is that ADX?
MARK BEZY: Yes, it is.
MR. BRUCK: And a view from the other side --
MR. BRUCK: 3254, please.
BY MR. BRUCK:
MR. BRUCK: Is that an aerial view from the other side of ADX?
MARK BEZY: Yes, it is.
MR. BRUCK: All right. That's what it looks like today?
MARK BEZY: Yes.
MR. BRUCK: By the way, when was the last time you visited ADX?
MARK BEZY: I was out there on the 7th of last month.
MR. BRUCK: Okay. You've been there recently?
MARK BEZY: Yes.
MR. BRUCK: You know what it looks like?
MARK BEZY: Yes.
MR. BRUCK: Now, are prisoners under SAMs -- do you know whether -- I think you've said that prisoners under -- that this institution is designed to accommodate prisoners who are under the SAMs. Why are prisoners that are under special administrative measures assigned to ADX rather than some other institution in the Bureau of Prisons?
MARK BEZY: It's been deemed as the most appropriate institution to house inmates under SAMs.
MR. BRUCK: Is there a particular unit or cellblock at ADX that is used to house these types of prisoners?
MARK BEZY: Yes. It's called H unit. It's a special security unit.
MR. BRUCK: Special security unit?
MARK BEZY: Yes.
MR. BRUCK: Or H?
MARK BEZY: H unit, yes.
MR. BRUCK: H unit? All right. And why would the bureau need a special institution in a specific location for this group of inmates?
MARK BEZY: Well, all these inmates are under SAMs. It's been activated since, I believe, 2002. The policies and procedures there are effective, and it works.
MR. BRUCK: All right. I'd like to go through the various types of communication or potential for communication that you listed and get you just to describe what the limitations are that are -- that result from the SAMs in each instance. Are there restrictions on inmates' use of the telephone?
MARK BEZY: Yes, there are.
MR. BRUCK: What are those restrictions?
MARK BEZY: Inmates will get one 15-minute phone call. It's got to be to -- what they call a member of the immediate family, which has been defined as parent, sibling, spouse or children, and they all have to be further approved by the FBI.
MR. BRUCK: The people with whom they're allowed to speak have to be approved?
MARK BEZY: By the FBI too.
MR. BRUCK: When a phone call is made, what restrictions or what precautions are taken to ensure that nothing untoward is -- no information that is untoward is passed in either direction?
MARK BEZY: The call is recorded, and it's live-monitored by both an agent from the FBI and somebody from the Federal Bureau of Prisons.
MR. BRUCK: Is there an absolute right to make phone calls to members of your immediate family?
MARK BEZY: No.
MR. BRUCK: Can a member of the immediate family be -- can an inmate be refused the right, if it is deemed appropriate, to speak with any member of their family?
MARK BEZY: Yes.
MR. BRUCK: Now, you say phone calls last 15 minutes?
MARK BEZY: Correct.
MR. BRUCK: And do you know what the maximum number of phone calls a month that can be allowed is under the SAMs?
MARK BEZY: Under the SAMs, if they're in H unit, it's two. Here it's one.
MR. BRUCK: And can that number be increased greater than two depending on the level that someone is in?
MARK BEZY: Yeah. That's Phase Level 1. Phase Level 2, it would be 3; and then Phase Level -- or -- excuse me -- 2 is three, and Phase Level 3 is four.
MR. BRUCK: Very well. Are there also restrictions on physical visits?
MARK BEZY: Yes.
MR. BRUCK: Can you tell us, generally speaking, what those restrictions are? First of all, who is allowed to visit an inmate?
MARK BEZY: It's immediate family.
MR. BRUCK: "Immediate family" means who?
MARK BEZY: Parents, siblings, children and spouses.
MR. BRUCK: So if an inmate is unmarried --
MARK BEZY: They don't, yes.
MR. BRUCK: -- and has no children, then it would be siblings and parents?
MARK BEZY: Correct.
MR. BRUCK: What about friends?
MARK BEZY: No.
MR. BRUCK: If a person had friends who wanted to visit him from the outside, that's not included?
MARK BEZY: No.
MR. BRUCK: What are the conditions under which the physical visitation occurs for inmates at H unit?
MARK BEZY: They're noncontact visits.
MR. BRUCK: What's that mean?
MARK BEZY: There's a physical barrier between the visitor and the inmate. It's usually security glass. The inmate is locked into a booth on one side. On the other side, the visitor would sit. Each one would have a phone. They would pick up the phone, and they would do -- they would conduct the visit that way.
MR. BRUCK: And how many visitors can be in the booth at a time?
MARK BEZY: One.
MR. BRUCK: The -- what contact is allowed with the news media for an inmate who is under a SAMs?
MARK BEZY: None.
MR. BRUCK: None?
MARK BEZY: None.
MR. BRUCK: What contact is allowed with the news media who wishes to speak to an inmate who is under a SAMs?
MARK BEZY: None.
MR. BRUCK: What about mail? Are inmates under SAMs allowed to correspond, and if so, with whom and under what conditions?
MARK BEZY: Again, it's to immediate family. All outgoing mail is photocopied. It's read by the FBI, Bureau of Prisons. If it's deemed appropriate, then it's sealed and mailed. Incoming is -- again, it's opened, checked for contraband. It's read by FBI Bureau of Prisons, it's analyzed, and then, if there's no issues, then it will be delivered to the inmate.
MR. BRUCK: Who is allowed to correspond with the inmate?
MARK BEZY: Immediate family.
MR. BRUCK: Same restrictions as with visitation?
MARK BEZY: Yes.
MR. BRUCK: And with telephone?
MARK BEZY: Yes.
MR. BRUCK: And as with telephone and visitation, is there any legal requirement that any particular immediate family member be allowed to communicate by mail with the inmate?
MARK BEZY: No.
MR. BRUCK: So someone could be disapproved even though they are immediate family?
MARK BEZY: Correct.
MR. BRUCK: Finally, are there -- you've described H unit. This is a -- is this a self-contained cell block within ADX?
MARK BEZY: Yes, it is.
MR. BRUCK: Is an inmate -- how are inmates housed within the cell block? Is it multiple cells or single cells?
MARK BEZY: It's single cells. Each inmate is assigned to a single cell.
MR. BRUCK: And are inmates permitted to mingle or communicate with other inmates outside of H unit?
MARK BEZY: No.
MR. BRUCK: Do you know whether there are recording facilities or capabilities to monitor anything that is said by an inmate inside of H unit?
MARK BEZY: Yes, there are, but it's law enforcement privilege, I'd like to add to that. But yes, there are.
MR. BRUCK: Okay. Without going into the details of how that's done --
MARK BEZY: Yes. I -- yeah, I'd prefer to not go into specifics, but there are.
MR. BRUCK: I understand. And that monitoring also permits recording of any conversations that inmates may have or attempt to have with each other within the unit?
MARK BEZY: Yes.
MR. BRUCK: Do you know how many inmates under SAMs are currently on H unit today?
MARK BEZY: As of the 7th of last month, there were 20 -- 27.
MR. BRUCK: All right. And do you know how many cells are in the unit?
MARK BEZY: There's 34 in the unit. Thirty-four cells.
MR. BRUCK: So there are empty cells there now?
MARK BEZY: Yes.
MR. BRUCK: Now, you've told us that these procedures, the SAMs, can be renewed annually?
MARK BEZY: Yes.
MR. BRUCK: Are there some prisoners who may spend many years under these procedures?
MARK BEZY: Yes.
MR. BRUCK: Are there prisoners still in H unit who have been there since it was created to house SAMs inmates back in 2002?
MARK BEZY: Yes, there are.
MR. BRUCK: Now, if an inmate is well-behaved, does the Federal Bureau of Prisons have the authority to remove these communications restrictions on its own authority?
MARK BEZY: No, they do not.
MR. BRUCK: Who has the authority -- sole authority to do that?
MARK BEZY: It would be the FBI and the U.S. Attorney's Office.
MR. BRUCK: Or --
MARK BEZY: Or attorney general.
MR. BRUCK: The attorney general?
MARK BEZY: Yeah.
MR. BRUCK: Acting on the recommendation?
MARK BEZY: Right.
MR. BRUCK: And I suppose that leads me to the next question: Does the U.S. Attorney's office and the FBI, who investigate or prosecute a case, have any role in the decision to renew the SAMs?
MARK BEZY: Yes, they do.
MR. BRUCK: And that role is what?
MARK BEZY: Well, they're asked for recommendations, and then there's a report compiled, and it's sent up to OEO and then up to the attorney general.
MR. BRUCK: If the Bureau of Prisons, the FBI or the U.S. Attorney suspect that a prisoner's attempting to defeat the restrictions, to communicate in some way despite these restrictions on communications, what sorts of measures are available to deal with that?
MARK BEZY: Well, they can totally take away his telephone privilege, his correspondence privilege and his visitation privilege.
MR. BRUCK: When a prisoner is sent to the H unit on ADX under a SAMs, can that -- does the Bureau of Prisons have the power to send him to another institution that would not -- where he would not be subject to the special administrative measures on its own say-so?
MARK BEZY: No, they would not.
MR. BRUCK: Do you know how many -- since 2002 -- and that is the time when this procedure was created; is that correct?
MARK BEZY: Correct.
MR. BRUCK: -- how many life-sentenced terrorist -- offenders convicted of terrorist offenses under the SAMs, excluding prisoners with medical issues, were either designated directly to ADX or ended up there?
MARK BEZY: All but one.
MR. BRUCK: And how big a group are we talking about?
MARK BEZY: There were 34 total, and 33 went there -- went to the G -- or to the H unit, and one went to a medical center.
MR. BRUCK: And one went to a medical center?
MARK BEZY: Correct.
MR. BRUCK: Presumably because he needed to be there?
MARK BEZY: Yes.
MR. BRUCK: Do the -- can you give us some examples of -- without naming any names, some of the types of offenses of people who have ended up --
MR. MELLIN: Your Honor, objection.
THE COURT: Overruled.
You may have it.
BY MR. BRUCK:
MR. BRUCK: Can you list some of the offenses for which people are convicted and are serving their time under SAMs at H unit?
MR. MELLIN: Your Honor, may we approach on that?
THE COURT: All right.
MR. BRUCK: I'll rephrase the question, your Honor.
THE COURT: All right.
BY MR. BRUCK:
MR. BRUCK: Without naming the specific crimes or the specific offenders, can you give us some sense of the types of offenses for which people have --
MR. MELLIN: Objection.
THE COURT: I think I have to see you.
(Discussion at sidebar and out of the hearing of the jury:)
MR. BRUCK: I'm just trying to bring out these are serious terrorist offenses, and maybe it goes without saying.
THE COURT: Well, just so I understand the controversy, let me know what touched the nerve.
MR. MELLIN: The attempt to try to do some comparative analysis to bring out the fact that there is people that --
MR. WEINREB: In addition, your Honor, I just want to also say that the suggestion may be -- without being intentionally made, may be received by the jury that this is an indication that people who commit these kinds of crimes don't generally get the death penalty.
MR. MELLIN: Correct. And, your Honor, while we're here, Mr. Bruck has now shown the photo of ADX from the sky, trying to make it look like it's on the moon. He has now zoomed in on ADX, and he's talked about the defendant will be in a single cell. I think we have every right to talk about all of the issues we discussed previously. He's trying to --
THE COURT: You have got plenty of room on what he has done by sticking to my ruling.
(In open court:)
BY MR. BRUCK:
MR. BRUCK: If the government for some reason decided not to renew the SAMs as to Mr. Tsarnaev and he were sent to ADX -- or let's say he were sent to ADX, and then at some point in the future the government did not -- chose not to renew the special administrative measures that is currently in effect to restrict his communications, is it likely that he would nevertheless remain at ADX?
MARK BEZY: In my opinion, he would remain at the ADX.
MR. BRUCK: And why do you say that, based on your knowledge of the rules and regulations of the Federal Bureau of Prisons?
MARK BEZY: Well, the Bureau of Prisons has what's called the central inmate monitoring system, which designates inmates in certain categories. Say there's a fight between two inmates, they make them separatees. They can never be in the same institution at the same time. There's also one called special supervision, and that's based upon the nature of the offense that the inmate is sentenced under. And then there's -- broad publicity is a separate category, and that's because of the inmate's offenses received such wide publicity, basically everybody knows who he is.
MR. BRUCK: And so two of those categories would apply in this case?
MARK BEZY: He carries those -- he carries those assignments now.
MR. BRUCK: Very well. All right. That's all I have to ask you about ADX. I do want to ask you one other thing: Did you review Mr. Tsarnaev's Bureau of Prisons records from the two years that he has spent in pretrial confinement at the Federal Medical Center at Devens, Massachusetts?
MR. MELLIN: Your Honor, objection. May we approach on this point?
THE COURT: All right.
(Discussion at sidebar and out of the hearing of the jury:)
MR. MELLIN: Your Honor, we have zero notice that they were using Mr. Bezy to get into his records for the two years he's been at Devens. In fact, we have zero notice of what Mr. Bezy was going to say, but Mr. Bruck represented to me that he was only going to be talking about his experience in working at BOP, not his former records.
MR. BRUCK: We had a very informal conversation in which I asked whether the government needed a written Rule 16 summary, and Mr. Mellin told me if it's the usual thing that Bezy does, which invariably involves reviewing his records -- all we're going to ask is the following question: How many disciplinary violations did you find on his Bureau of Prisons institutional record over the two-year period since his arrest on April 19th? And we anticipate the answer would be none. That is the extent of the testimony, simply that he has a clean record of disciplinary violations. It's not a point of contention. Those are the facts. And after Mr. Mellin told me that we didn't need to provide anything, I'm a little taken aback to be told that we didn't provide enough.
MR. MELLIN: No, your Honor. There's two separate issues altogether, and Mr. Bruck should know that. It's one thing to call an expert who has worked at BOP to talk about what the BOP does and the procedures the BOP follows. It's another thing altogether to have someone come in and talk about reviewing records.
If we had been told there would be a review of records, we would be able to look at them now, go through them and make sure his answer is correct. I know for a fact that the answer is not correct for at least one instance that Marshal Roche could talk about in which he acted out on a transport from Devens to this courthouse. So I don't believe that is a correct answer.
MR. BRUCK: Well, there is no institutional infractions, but how we --
THE COURT: Well, I don't think -- I don't think it's a serious notice problem necessarily. I am concerned about the accuracy of the information, but --
MR. BRUCK: We'll leave it alone.
THE COURT: Yeah. Okay.
(In open court:)
MR. BRUCK: Thank you, Mr. Bezy. Please answer any questions the government may have for you.
CROSS-EXAMINATION BY MR. MELLIN:
MR. MELLIN: Mr. Bezy, good afternoon.
MARK BEZY: Good afternoon.
MR. MELLIN: Mr. Bezy, you never actually worked at ADX, correct?
MARK BEZY: Correct.
MR. MELLIN: The only times you've been to ADX has just been as a walk-through, correct?
MARK BEZY: No, I've done a staff assist of the correctional services department as a pre-audit, pre-program review. I've been part of a regional office team that went in and did -- spent a week there doing an institutional character profile of the entire complex. Every time I go out to the -- to the complex and do a staff assist visit to the -- to any of the facility there, we're always required to go visit all of the -- the institutions. As a warden, I did an after-action review of a -- of a serious incident that occurred at the ADX. So I've been there quite a few times. And, actually, I flew in with the last load of high-security inmates when we shut down Marion. I took them -- I was on the plane with them from Marion to the ADX. I'm quite familiar with the ADX.
MR. MELLIN: Right. And when was that that you did this fly-in from Marion into ADX?
MARK BEZY: 2005.
MR. MELLIN: Okay. Now, there's been changes at the ADX. Wait. That was 2005?
MARK BEZY: I mean -- excuse me -- 1995.
MR. MELLIN: Right. There have been changes to the ADX since, using your first number, 2005, correct?
MARK BEZY: Correct.
MR. MELLIN: Okay. There were changes made certainly since 1995, correct?
MARK BEZY: Correct.
MR. MELLIN: How many times have you been on the H unit?
MARK BEZY: Probably -- the last time I was on it was in, I think, 2005.
MR. MELLIN: Right. So you haven't been there in ten years, correct?
MARK BEZY: I was there just last month.
MR. MELLIN: To the H unit?
MARK BEZY: H unit, yes.
MR. MELLIN: I thought you said the last time you were there was 2005.
MARK BEZY: I toured it last month, on the 7th; I was in the unit.
MR. MELLIN: Did you go in and see the cells?
MARK BEZY: No, they wouldn't let us go down range because of sensitivity of the unit.
MR. MELLIN: Right. So when you say you went into the H unit, what did you go into?
MARK BEZY: We went into the entrance. We went into the -- you can stand and see down the ranges. We went outside, saw the recreation yards, and basically that --
MR. MELLIN: Right. You were at the control booth in the middle, correct?
MARK BEZY: We went beyond the control booth.
MR. MELLIN: And when you say you're looking down the range, that means you're looking down the hallway, but the cells are actually off on the sides, correct?
MARK BEZY: Correct.
MR. MELLIN: So you couldn't see into any of the cells, correct?
MARK BEZY: Correct.
MR. MELLIN: You couldn't see who was in what cell or anything like that, right?
MARK BEZY: Right. They didn't want us to know that.
MR. MELLIN: Now, you talked about the SAMs issues, yet you've never worked at ADX, and I think you just testified that it's your understanding that most of the individuals on SAMs go to the ADX. Is that what you're saying?
MARK BEZY: Under this provision, yes.
MR. MELLIN: Right. So then you would not have had any type of work experience in that situation because you were never at ADX, correct?
MARK BEZY: Correct.
MR. MELLIN: Now, let's talk about the SAMs. You understand, of course, that the SAMs is an established procedure that DOJ must follow, correct?
MARK BEZY: Yes.
MR. MELLIN: And if it's not followed every single year, it just lapsed, correct?
MARK BEZY: Yes.
MR. MELLIN: There are a number of individuals who have been in ADX where their SAMs have lapsed and they are now either in another part of ADX, not in the H unit, or other facilities, correct?
MARK BEZY: Correct. But that's not up to the BOP. It's up to the FBI and the U.S. Attorney's Office.
MR. MELLIN: Well, then if it's not up to the FBI or the U.S. Attorney's Office, who makes the call on that?
MARK BEZY: Whether they're -- they're not renewed?
MR. MELLIN: Yes.
MARK BEZY: It's not the Bureau of Prisons, no.
MR. MELLIN: It's not the local U.S. Attorney's Office either, is it, Mr. Bezy?
MARK BEZY: Well, that's -- we were told that differently yesterday.
MR. MELLIN: You believe, as you sit here right now, that the U.S. Attorney's Office makes the call as to whether or not the SAMs will be in place?
MARK BEZY: There's a recommendation -- there's a group in Washington that calls down here and talks to the local FBI field office. They talk to the U.S. Attorney's Office. They get -- they get a recommendation. They compile the report. The report, then, is routed through DOJ. It's up to OEO, and then it's sent up to the attorney general.
MR. MELLIN: Right. So you know the call's not made by this local U.S. Attorney's Office, correct?
MARK BEZY: The final call, no. But you have input in it, yes.
MR. MELLIN: Right. And this U.S. Attorney's Office may think they want to have a SAMs in place, but the Department of Justice overall may make a call and say no, correct?
MARK BEZY: It's possible.
MR. MELLIN: That's happened repeatedly, correct?
MARK BEZY: It's very possible.
MR. MELLIN: You agree that if the SAMs is not renewed, it lapses in a year, correct?
MARK BEZY: Yes.
MR. MELLIN: You would also agree that prisoners file lawsuits attacking their SAMs all the time, correct?
MR. BRUCK: Objection to "all the time."
MARK BEZY: Correct.
THE COURT: Well, it's a little vague, but that -- I'll allow it.
BY MR. MELLIN:
MR. MELLIN: SAMs can be modified, correct?
MARK BEZY: Yes. Not by the -- not by a court, no.
MR. MELLIN: Not by a court?
MARK BEZY: You're right.
MR. MELLIN: What happens?
MARK BEZY: The court can make a recommendation, but the -- the court cannot stop -- change a SAMs or end a SAMs.
MR. MELLIN: Right. And the court makes a recommendation to whom?
MARK BEZY: To DOJ.
MR. MELLIN: Right. So you have the judicial branch making a recommendation to the executive branch, correct?
MARK BEZY: Correct.
MR. MELLIN: And generally, that is the judicial branch that's overseeing the case making a recommendation to the executive branch that is prosecuting that case, correct?
MARK BEZY: Correct.
MR. MELLIN: You know in this case there has been a modification of the SAMs already, correct?
MARK BEZY: I'm not familiar with that, no.
MR. MELLIN: You're not?
MARK BEZY: No.
MR. MELLIN: Are you familiar whether or not this defendant's attorneys have already asked to modify the SAMs in this case?
MR. BRUCK: Objection.
THE COURT: Overruled.
You may answer it.
MARK BEZY: No.
BY MR. MELLIN:
MR. MELLIN: You're not aware of that?
MARK BEZY: No.
MR. MELLIN: And just so the jury is clear, the SAMs program -- what does "SAMs" stand for again?
MARK BEZY: Special administrative measures.
MR. MELLIN: Right. That program has been in existence for how long?
MARK BEZY: Probably 1993, I believe.
MR. MELLIN: Or maybe 1995?
MARK BEZY: Possible, yes.
MR. MELLIN: So just at 20 years right now, correct?
MARK BEZY: Yes.
MR. MELLIN: So prior to that, there was no SAMs program that existed, right?
MARK BEZY: Correct.
MR. MELLIN: And as you sit here today, you can't predict how long there's going to be a SAMs program that exists in the future, correct?
MR. BRUCK: Objection.
THE COURT: Overruled.
Go ahead. You may answer.
MARK BEZY: I'd say it's going to be there for a while, yes.
BY MR. MELLIN:
MR. MELLIN: And you're not aware that the defense moved to vacate the SAMs in this case?
MARK BEZY: No.
MR. MELLIN: In spite of the existence of these SAMs or these special measures that are put in place, there have been numbers of violations of the SAMs that are in place, correct?
MARK BEZY: I'm not aware of any, no.
MR. MELLIN: You're not aware of any SAMs violations?
MARK BEZY: No.
MR. MELLIN: Were you not a consultant, if not someone who testified in the Philadelphia case involving Kaboni Savage?
MARK BEZY: No, I did not testify in that case.
MR. MELLIN: Were you hired as an expert in that case?
MARK BEZY: Not in that case, no, I was not.
MR. BRUCK: Objection to -- we're going very far afield. And in addition, the question should focus on the H unit about which the witness the has testified.
THE COURT: It's still -- still addressing the SAMs. I think that's appropriate.
BY MR. MELLIN:
MR. MELLIN: Is it your testimony that -- as you sit here today, that you're unaware that SAMs have been violated?
MARK BEZY: I'm unaware of any situations where it has been violated, correct.
MR. MELLIN: Are you aware that every year inmates come off SAMs?
MARK BEZY: It's possible, yes.
MR. MELLIN: Is that a yes or a no? Are you aware of that?
MARK BEZY: Every year? I can't say yes or no. I said it's very possible, though.
MR. MELLIN: Are you not aware of the information in this case regarding the request concerning SAMs discovery?
MARK BEZY: Yes.
MR. MELLIN: Well, then you're aware that there's at least half a dozen every year that come off of SAMs, correct?
MARK BEZY: Correct.
MR. MELLIN: You would agree that when the SAMs come down, someone who's on the H unit is transferred out, correct?
MARK BEZY: When they're removed?
MR. MELLIN: Yes.
MARK BEZY: Yes.
MR. MELLIN: So an inmate who might have been in the H unit because of restrictions on communications, when those come down, they're going to go someplace else, right?
MARK BEZY: Yes.
MR. MELLIN: And you're aware that there have been times where terrorist inmates who are on SAMs are no longer on SAMs, correct?
MARK BEZY: Correct.
MR. MELLIN: And they have been moved out of the H unit, correct?
MARK BEZY: Correct.
MR. MELLIN: Some have moved into general population at ADX, correct?
MARK BEZY: Correct.
MR. MELLIN: And just so we're all clear there, that means ADX isn't just this special security unit H unit, but it's a regular penitentiary, correct?
MARK BEZY: No, it's not a regular penitentiary.
MR. MELLIN: Well, how would you describe it?
MARK BEZY: It's the most restrictive penitentiary in the Bureau of Prisons. It's -- they're single cells. Inmate comes out of his cell, he's in restraints. There's two to three officers escorting him every place he goes. He's single rec'd and single celled, and he's there for a period of time.
MR. MELLIN: He's single rec'd at all times when he's at ADX?
MARK BEZY: Yes.
MR. MELLIN: Even when he's stepping down, he's single rec'd?
MARK BEZY: Oh, not -- not in step-down program, no. But in the -- in the first initial phase, he is.
MR. MELLIN: I'm talking about -- I thought we were talking about when the SAMs come down and an inmate is now going to be in general population at ADX, they're not going to be single celled necessarily, are they?
MARK BEZY: Yes, if they're going to go to Phase 1 of the ADX program. They're not going to the step-down unit initially. They're going to have to work their way through the program. And there's no guarantee that they'll work their way through. There's a provision in the ADX mission statement that if the inmate has a high notoriety and if his life, his security would be a threat at a less-security -- a less-secure institution, he'll remain at the ADX.
MR. MELLIN: And that deals with the security of the inmate, correct?
MARK BEZY: Correct.
MR. MELLIN: BOP is stepping in to protect the inmate, correct?
MARK BEZY: Correct.
MR. MELLIN: I'm talking about in situations where someone has been at ADX -- immediately when someone goes to ADX, they're going to get involved in a step-down process; isn't that right?
MARK BEZY: No.
MR. MELLIN: No?
MARK BEZY: No.
MR. MELLIN: There's no step-down process in the H unit?
MARK BEZY: There's a step -- in H unit, yes.
MR. MELLIN: And there's not a step-down process outside of the H unit?
MARK BEZY: Yes, but they have to -- they have to work -- there's Phase 1, Phase 2 and Phase 3. They have to work through the phases.
MR. MELLIN: Right.
MARK BEZY: And just because they've worked through the phases and their behavior has been exemplary, that doesn't mean that they're going to move to the next level. Each case is based on individual case, and it's based upon factors involving that inmate.
MR. MELLIN: Right. And I'm asking you generally the inmates, what can go from Phase 1 to Phase 2, correct?
MARK BEZY: If the -- if the committee deems it appropriate, yes. It's not guaranteed.
MR. MELLIN: Of course it's not guaranteed, but the whole idea of this is that you want to have these individuals step down to less restrictive situations, correct?
MARK BEZY: Correct. That's the goal, but the goal is not always met. There are inmates that have been there since 1994, and they will -- they'll be there forever.
MR. MELLIN: That have been at ADX since 1994?
MARK BEZY: Yes.
MR. MELLIN: When did you move the inmates from Marion to --
MARK BEZY: I mean in 1994 -- they've been there since 1994.
MR. MELLIN: Okay. I'm asking you about a step-down process that you're well aware of, correct?
MARK BEZY: Correct.
MR. MELLIN: You were at Marion at the time, correct?
MARK BEZY: Correct.
MR. MELLIN: You were the one who thought it was a good idea to have the step-down process go at Marion, right?
MARK BEZY: I was the captain. That's all I was. That's a higher pay grade than I was that made the step-down. But there's inmates that came for review -- I was part of that -- that step-down review program -- that came up for review that we never moved beyond Phase 1.
MR. MELLIN: That's fine. I'm asking you about the program. The program was something you knew about at Marion, correct?
MARK BEZY: Correct.
MR. MELLIN: You were the warden, I thought, at Marion?
MARK BEZY: No, I was captain.
MR. MELLIN: Just the captain. Where were you the -- no, I'm sorry. You were the warden at Terre Haute, right?
MARK BEZY: And Elkton, yes.
MR. MELLIN: Okay. And at that time, when you were at Marion, you knew that it was a three-phase step-down process, right?
MARK BEZY: Yes.
MR. MELLIN: And the reason why you have that is because you want to try to get to a situation where you have less restrictions on these inmates, right?
MARK BEZY: Correct.
MR. MELLIN: Because it's incredibly costly for the Department of Justice or for BOP to have their individual employees --
MR. BRUCK: Objection.
THE COURT: No, you may have it.
BY MR. MELLIN:
MR. MELLIN: I'll rephrase it.
MARK BEZY: Please.
MR. MELLIN: What's the purpose of a step-down process?
MARK BEZY: It's to work the inmates into a more -- into a less restrictive environment.
MR. MELLIN: And why?
MARK BEZY: With the eventual goal of them working their way out of, at that time, Marion.
MR. MELLIN: And why?
MARK BEZY: Because it's -- it was the goal that some inmates met and some inmates didn't meet.
MR. MELLIN: You do it because it requires a higher number of staff to monitor these people that are in --
MR. BRUCK: Objection.
THE COURT: Sustained. Sustained. That's -- I think the point has been made.
BY MR. MELLIN:
MR. MELLIN: You put incentives into the program to encourage inmates to step down, correct?
MARK BEZY: Correct.
MR. MELLIN: You talked about the -- that at one point there were a number of inmates who were on SAMs who had some type of terrorism connection who, even today, are still at the H unit, correct?
MARK BEZY: Correct.
MR. MELLIN: H unit was created when?
MARK BEZY: 2002.
MR. MELLIN: All right. So we're talking about for over 13 years, right?
MARK BEZY: Correct.
MR. MELLIN: Okay. But the majority of those inmates who were at the H unit in 2002 are no longer on those SAMs restrictions or even at the H unit, correct?
MARK BEZY: There's a number that have been moved out, yes.
MR. MELLIN: Right. The majority, correct?
MARK BEZY: It's possible, but there's a number that have been moved out.
MR. MELLIN: Now, you were the warden at Terre Haute from 2004 to 2006, right?
MARK BEZY: Correct.
MR. MELLIN: You oversaw the federal death row, right?
MARK BEZY: Yes.
MR. MELLIN: You're aware that there are violent acts that happen every day at U.S.P., correct?
MARK BEZY: Yes.
MR. BRUCK: Objection.
THE COURT: Sustained. Scope.
BY MR. MELLIN:
MR. MELLIN: Well, are you aware that inmates communicate with other inmates?
MARK BEZY: In a U.S.P.?
MR. MELLIN: Yes.
MARK BEZY: Yes, it's an open -- it's an open penitentiary. They work together. We open the cells at six o'clock in the morning; we lock them back down at ten o'clock. From six to ten, they work, they program, they eat in the dining room together, and they recreate, and they watch TV; they play cards. Yes, they communicate.
MR. MELLIN: They communicate even at ADX, correct?
MARK BEZY: Yes.
MR. MELLIN: Sometimes appropriately; sometimes not appropriately, correct?
MARK BEZY: Yes.
MR. MELLIN: And some of those communications involve trying to carry out a hit on somebody else, correct?
MR. BRUCK: Objection, your Honor. There's no evidence --
THE COURT: Yeah, sustained.
MR. BRUCK: -- relative to this at all.
BY MR. MELLIN:
MR. MELLIN: These communications involve violent acts, correct?
MR. BRUCK: Same objection.
THE COURT: Sustained.
BY MR. MELLIN:
MR. MELLIN: You're aware that inmates, even at ADX, have access to books and magazines, correct?
MARK BEZY: Yes.
MR. BRUCK: Objection.
BY MR. MELLIN:
MR. MELLIN: They can receive communications, correct?
THE COURT: Well, let me just see you.
(Discussion at sidebar and out of the hearing of the jury:)
MR. BRUCK: Is that as far as you were going with --
THE COURT: I want to -- this is going to stay tight to the SAMs, so if -- the content of the SAMs regulations has been put in issue. If the content -- if the SAMs regulations have a provision regarding this, then I guess it's fair.
MR. MELLIN: Well, your Honor, but that's not --
THE COURT: I don't want to go to general -- the point is not just general conditions, but we're still -- we're still following the track of the SAMs.
MR. MELLIN: But the problem with that is, your Honor, we're only looking at one little part of the process because we had him admit that SAMs are a yearly review. The SAMs might come down. We have every right to ask when it comes down.
THE COURT: You can show -- right. You can have evidence of what is opened up, I guess, what possibilities -- what the restrictions of the SAMs are, and if the restriction isn't there, I guess what is possible. But it's got to be tied to the present terms that are in the SAMs.
MR. MELLIN: But that's what I was doing. In the absence of the SAMs, I was asking what --
THE COURT: I wasn't --
MR. MELLIN: I'm not sure -- I'm not sure I understand the Court's ruling concerning the violent acts, where there are communications between inmates --
THE COURT: Well, no. I don't think we have the -- I don't think it's fair game to address the philosophy of the SAMs or the objectives. We're dealing with the mechanics of the SAMs, and what they preclude and what in their absence is not precluded, that is a -- I guess an otherwise available feature of prison life.
MR. WEINREB: It's also their effectiveness, though. I mean, Mr. Bruck's argument is that the defendant will not pose a danger to others going forward because the SAMs will prevent him from communicating in a way that could provoke or encourage or facilitate violence. If the SAMs are in effect to do that, that's something the jurors ought to be aware of. And, in fact, the SAMs are not foolproof. They've been violated, and they have led to violence.
MR. BRUCK: We have a list of every documented instance -- we asked for every documented instance of violence on the H unit involving SAMs inmates. We were told we could only have the last five years. We were given the last five years. They are the most trivial incidents. There are six incidents involving five inmates, and the worst of them involves somebody who is fighting against being force fed. I mean, this is -- if we're going to go there, it's not going to be pretty for the government.
MR. MELLIN: No, your Honor. It doesn't need to be pretty for anyone. The point is it needs to be fair, and it's not fair to draw these very fine lines and say, "I'm going to talk about this little thing" when that little thing is probably going to be gone in five years. And when that little thing is gone in five years, the situation is going to be completely different.
THE COURT: I think you've made your point with respect to what happens about the SAMs.
MR. WEINREB: Your Honor, we would ask the Court to take judicial notice of the fact that a motion was filed in this case --
THE COURT: We can deal with that at some point.
MR. WEINREB: -- to vacate the sentence.
THE COURT: The document's been published.
MR. WEINREB: Yeah. But it's not really what you would normally put a witness on for, so I think --
THE COURT: No, no. No, I think -- I think notice can be taken of that.
MR. BRUCK: But it was also denied, and it was -- it was a pretrial SAMs, and --
THE COURT: Yeah, we can put the disposition.
Mr. Mellin. Time?
MR. MELLIN: Quite a bit. More than five minutes. Probably a good time to break. Probably 20 or 30 minutes, maybe.
MR. BRUCK: I'd like to let this witness go. I suggest we keep going for another 15 minutes.
THE COURT: If that would do it, I'll do that.
MR. MELLIN: I don't believe it's going to do it. That's the problem.
THE COURT: I don't know how much more you could have.
MR. MELLIN: Well, I have pretty much more about visitation, about communications, about family members, about --
MR. WEINREB: This is a very important issue. The jury cares a lot about this. We're not talking about something trivial or collateral. We're talking about maybe the most important thing for them.
MR. BRUCK: Well, it looks like Mr. Mellin plans to go into a series of non-SAMs-related incidents at other institutions involving other inmates. Maybe I should make the motion now and you could rule that out rather than spend 20 minutes or so on this inmate at Terre Haute or that inmate at Leavenworth. It's not relevant. We have gone into the SAMs. They've established the SAMs can be withdrawn. That's not open carte blanche to every single incident involving every non-comparable inmate everywhere in the department -- in the Bureau of Prisons.
MR. MELLIN: I don't disagree, necessarily, with that, your Honor, but the impression that's being left is that if someone is on the SAMs, no one is going to have contact, and that the world is safe, and that's just not true.
MR. WEINREB: Let's deal with the issue of timing for a minute. The defense chose to put on this very critical witness at the very end of the day to try to examine him to the point where we would have a very limited amount of time to cross-examine him. It had to be done by the end of today. That's just not fair. We had many witnesses today who were not very important. This one's a critical witness.
THE COURT: All right. We'll break for the day.
(In open court:)
THE COURT: Jurors, we're just about at four o'clock. We're going to take the recess for the day and resume tomorrow with the evidence.
Again, I caution you against any discussion of the case with yourselves or anybody else, and avoid any news media accounts of the case. Enjoy the rest of the day. We'll see you tomorrow morning.
COURT CLERK: All rise for the Court and the jury. The Court will be in recess.
(The Court and jury exit the courtroom and the proceedings adjourned at 3:56 p.m.)