3.Mark Bezy — Cross/Redirect/Recross (Part 2)
881 linesMARK BEZY, resumed
CONTINUED CROSS-EXAMINATION BY MR. MELLIN:
MR. MELLIN: Mr. Bezy, you retired from the BOP when?
MARK BEZY: 2006.
MR. MELLIN: And since then you set up a company that deals with you testifying in cases like this, correct?
MARK BEZY: 2008, yes.
MR. MELLIN: Okay. Since 2008. So for the last seven years you have a company in which you go around the United States testifying for federal criminal defendants, correct?
MARK BEZY: Correct.
MR. MELLIN: You've never testified for the government, correct?
MARK BEZY: Correct. I've never been asked.
MR. MELLIN: And how many times have you actually testified in federal death penalty cases?
MARK BEZY: I think it's approximately 14.
MR. MELLIN: You were just hired recently to testify in the other federal death penalty case here in Massachusetts, correct?
MARK BEZY: Yes.
MR. MELLIN: The Sampson case?
MARK BEZY: Yes.
MR. MELLIN: And would you agree that 95 percent of the income you derive in your business is from testifying in capital cases?
MARK BEZY: Correct.
MR. MELLIN: Mr. Bezy, you said you were at the ADX in 2015 but you did not go down the range, correct?
MARK BEZY: Correct.
MR. MELLIN: When was the last time you actually went down the range and looked into a cell?
MARK BEZY: At the ADX?
MR. MELLIN: Yes.
MARK BEZY: In which unit?
MR. MELLIN: Well, I was going to ask you to clarify but go ahead. Which units have you gone down and seen actual cells?
MARK BEZY: The only unit that I have not been into is the H unit, and that was because of the SAMs and we were not allowed to go down to the ranges, talk to the inmates because they were under the SAMs. I've been in every other unit in the institution.
MR. MELLIN: So you've never actually seen a cell in the H unit?
MARK BEZY: Years ago I did, yes.
MR. MELLIN: When did you see that?
MARK BEZY: Probably 2005.
MR. MELLIN: Since 2005, have you ever gone back to the H unit?
MARK BEZY: No.
MR. MELLIN: And you know there have been changes to the cells since 2005, correct?
MARK BEZY: Yes.
MR. MELLIN: Now, yesterday in response to a question, you said that -- and this is a quote from you. "That's not what I was told yesterday," meaning Tuesday. Do you remember saying that?
MARK BEZY: In reference to what?
MR. MELLIN: To one of the questions about your understandings of if there had been violations of the SAMs, you said that, "Well, that's not what I was told yesterday."
MARK BEZY: Yes. We met with the female FBI agent who's in charge, the national joint federal terrorism task force.
MR. MELLIN: And so when you say "we met," who met?
MARK BEZY: The defense -- part of the defense team.
MR. MELLIN: And did you sit in on those meetings?
MARK BEZY: On that meeting, yes.
MR. MELLIN: And that person you're talking about is the unit chief from the FBI that handles terrorism SAMs. Is that right?
MARK BEZY: Yes.
MR. MELLIN: Micelle Nicolet?
MARK BEZY: I believe that's her name.
MR. MELLIN: You also sat in on a meeting with Warden John Oliver, correct?
MARK BEZY: Correct.
MR. MELLIN: And Warden Oliver is actually the current warden at ADX, right?
MARK BEZY: Yes.
MR. MELLIN: And you sat in on the meeting with BOP official David Schiavone, correct?
MARK BEZY: Correct.
MR. MELLIN: Now, when you sat in on those meetings, that's where you learned this information that you talked about yesterday, correct?
MARK BEZY: On the SAMs?
MR. MELLIN: Yes.
MARK BEZY: No, I'd done other research. I'd read the section in the C.F.R.
MR. MELLIN: Okay. So -- and when you say "the C.F.R.," what is the C.F.R.?
MARK BEZY: It's 50 -- 28 C.F.R. 501.3.
MR. MELLIN: And what does "C.F.R." stand for?
MARK BEZY: It's a Code of Federal Regulations.
MR. MELLIN: Right. It's the federal regulations that deal with the implementation of the SAMs, correct?
MARK BEZY: Correct.
MR. MELLIN: It's the federal regulations that talk about what has to be proven and what has to be shown to even get a SAMs, right?
MARK BEZY: Correct.
MR. MELLIN: It doesn't -- the government can't just ask for a SAMs, right?
MARK BEZY: Correct.
MR. MELLIN: You have to actually follow the regulations. And when you follow those regulations, then you can proceed to ask for a SAMs, right?
MARK BEZY: Yes.
MR. MELLIN: And each year the government must justify the request for the information that they're -- or justify the SAMs request relying on information that they have, right?
MARK BEZY: Yes, that they get from the FBI and the U.S. Attorney's Office and other law enforcement.
MR. MELLIN: Right. And that information must be sufficient to satisfy the Code of Federal Regulations before the request can even be made, right?
MARK BEZY: I believe so.
MR. MELLIN: There's limitations on what the government can do in seeking SAMs, correct?
MARK BEZY: Yes.
MR. MELLIN: And you understand that from listening to what Ms. Nicolet had to say, the unit chief from the FBI, she talked about what the procedures were that the FBI and then the U.S. Attorney's Offices are required to go through in order to modify or renew a SAMs that is existing, correct?
MARK BEZY: Yes.
MR. MELLIN: And specifically concerning terrorism cases, right?
MARK BEZY: Correct.
MR. MELLIN: And from sitting in on that interview with her, you learned that the number of inmates who have been convicted of a terrorism charge and who had a SAMs and were housed at the ADX who had their SAMs removed or not renewed is nine, correct?
(Pause.)
MARK BEZY: Yes.
MR. MELLIN: And that's just since -- in the last five years, correct?
MARK BEZY: Correct.
MR. MELLIN: Okay. So since 2009, there have been nine inmates convicted of terrorism who had a SAMs housed at ADX who since that time that SAM has been removed or not renewed, right?
MARK BEZY: Yes.
MR. MELLIN: Let me go back, then, to your time when you were employed with BOP, so any time prior to 2006. You never dealt with SAMs at any time when you were actually employed by BOP, correct?
MARK BEZY: No.
MR. MELLIN: No, that's not correct or, no, you never did?
MARK BEZY: No, I never did.
MR. MELLIN: And of these federal death penalty cases in which you have testified, you've never testified about SAMs at all, correct?
MARK BEZY: Correct.
MR. MELLIN: Not one of the 14 cases that you testified in prior to this case have you once talked about SAMs, correct?
MARK BEZY: Correct.
MR. MELLIN: SAMs didn't even exist when you were at Marion, correct?
MARK BEZY: I don't -- I don't believe so, but we had a number -- we did have terrorists there at Marion. We had a special unit. In K unit in Marion we housed -- we housed American spies, domestic terrorists and bombers.
MR. MELLIN: Thank you. That wasn't my question. My question was: You didn't have any SAMs inmates at Marion when you were there, correct?
MARK BEZY: Well, I don't know if Jonathan Pollard was under SAMs at that time or not. I'm not sure.
MR. MELLIN: As you sit here today, can you tell us one inmate who was at Marion when you were at Marion that was under SAMs?
MARK BEZY: It's possible Pollard was and a Japanese national called Kikumura.
MR. MELLIN: It's possible?
MARK BEZY: Possible, yes.
MR. MELLIN: When you were at Terre Haute, there were zero inmates under SAMs, correct?
MARK BEZY: Correct.
MR. MELLIN: And that was federal death row, correct?
MARK BEZY: Yes.
MR. MELLIN: So the time that you were at Terre Haute from -- I believe it was 2004 to 2006 -- is that right?
MARK BEZY: Yes.
MR. MELLIN: -- you had no dealings whatsoever with SAMs, right?
MARK BEZY: Correct.
MR. MELLIN: You've never been involved in implementing any inmate SAMs, correct?
MARK BEZY: Correct.
MR. MELLIN: You've never monitored any phone calls or communications concerning SAMs, correct?
MARK BEZY: Correct.
MR. MELLIN: You've never even supervised anyone who did do that, correct?
MARK BEZY: Correct.
MR. MELLIN: You never addressed or were concerned about any inmate's administrative request to modify SAMs, correct?
MARK BEZY: Correct.
MR. MELLIN: You never were asked to give input about a modification of a SAMs, correct?
MARK BEZY: Correct.
MR. MELLIN: You never talked to anyone at the FBI about a SAMs when you were employed at BOP, correct?
MARK BEZY: Correct.
MR. MELLIN: You never talked to anyone from the U.S. Attorney's Office about a SAMs when you were employed by BOP, correct?
MARK BEZY: Correct.
MR. MELLIN: You certainly didn't talk to anyone at main justice, or the Department of Justice in Washington, D.C., about a SAMs, correct?
MARK BEZY: Correct.
MR. MELLIN: Have you ever read an actual SAMs before getting involved in this case?
MARK BEZY: No.
MR. MELLIN: Have you ever read the SAMs in this case?
MARK BEZY: Yes, I have.
MR. MELLIN: So given your entire career in BOP and now this career you have testifying in capital cases, you have read one SAMs, correct?
MARK BEZY: Correct.
MR. MELLIN: Now, the individuals that you met with on Tuesday, those are the people that have actual involvement in the implementation of SAMs, correct?
MARK BEZY: Yes.
MR. MELLIN: People like Ms. Nicolet, correct, or Agent Nicolet?
MARK BEZY: Yes.
MR. MELLIN: And Mr. Schiavone?
MARK BEZY: Yes.
MR. MELLIN: And Warden Oliver, correct?
MARK BEZY: Yes.
MR. MELLIN: Just so we're all clear, you were never employed at ADX, correct?
MARK BEZY: Correct.
MR. MELLIN: Now, you told the jury yesterday that SAMs limit an inmate's communications to immediate family members. Is that right?
MARK BEZY: Correct.
MR. MELLIN: And do you believe that to be true?
MARK BEZY: That's what the SAMs says and that's what I was told. Yes, I do believe it to be true.
MR. MELLIN: Inmates can ask for friends or others to be added to their SAMs, correct?
MARK BEZY: They can ask but that doesn't mean it's approved, yes.
MR. MELLIN: You know in this case that that has happened, correct?
MR. BRUCK: Objection, your Honor.
THE COURT: Overruled.
MARK BEZY: No, I don't.
BY MR. MELLIN:
MR. MELLIN: You don't know that the SAMs in this case has been modified to allow other than just immediate family members to meet with the defendant?
MR. BRUCK: Objection, your Honor. This is a pretrial matter. It is not comparable to the issue that we're talking about for post trial.
THE COURT: All right. I understand. The objection is overruled.
MARK BEZY: Can you repeat the question?
BY MR. MELLIN:
MR. MELLIN: Sure. You're not aware that the SAMs in this case was modified to allow contact with the defendant by persons other than his immediate family members?
MARK BEZY: No.
MR. MELLIN: You are aware that the SAMs that is in place carries over from pretrial to post trial, correct?
MARK BEZY: Correct.
MR. MELLIN: I believe yesterday you said that you were unaware of any SAMs violations that have occurred. Is that right?
MARK BEZY: In H unit, yes.
MR. MELLIN: In H unit. Are you aware of SAMs violations occurring elsewhere?
MARK BEZY: No, I'm not.
MR. MELLIN: Do you know who Lynne Stewart is?
MR. BRUCK: Objection, your Honor.
THE COURT: Sustained.
BY MR. MELLIN:
MR. MELLIN: Well, is it your testimony that you believe there -- that you have no knowledge as you sit here today in 2015 of anyone violating a SAMs?
MR. BRUCK: This should be confined to H unit, is the relevant issue here. And we object to it, any broader than that.
MR. MELLIN: Your Honor, I disagree. I don't think it has to be confined to the H unit. This is about the SAMs issue.
THE COURT: Yeah, you may have it.
MARK BEZY: Can you repeat it, please?
BY MR. MELLIN:
MR. MELLIN: Sure. Are you aware as you sit here today in 2015 of any SAMs violations that have occurred?
MARK BEZY: Since you brought the lawyer's name up, yes, I am familiar with that case. She violated the SAMs --
MR. BRUCK: We object, your Honor.
THE COURT: Sustained. Sustained.
BY MR. MELLIN:
MR. MELLIN: Without getting into the details of that case, so now you are -- you have a recollection that, in fact, SAMs have been violated in the past?
MARK BEZY: In that one case, yes.
MR. MELLIN: But that's the only case you can recall?
MARK BEZY: Yes.
MR. MELLIN: Now, do you remember sitting in with Ms. Nicolet when she was discussing the number of SAMs violations that have occurred over time?
MARK BEZY: She described more of attempts than successful violations in H unit.
MR. MELLIN: And what was that number?
MARK BEZY: I don't recall.
MR. MELLIN: Do you recall it being over 80?
MARK BEZY: No.
MR. MELLIN: Was it over 70?
MARK BEZY: No.
MR. MELLIN: You don't recall the number?
MARK BEZY: No, I do not.
MR. MELLIN: And that number that you're referring to that -- you don't recall the number but you recall the topic coming up, correct?
MARK BEZY: Yes.
MR. MELLIN: And that topic was discussing attempts that are made to violate SAMs, correct?
MARK BEZY: Correct.
MR. MELLIN: And that some of those attempts may or may not be successful, correct?
MARK BEZY: Well, if they're an attempt, they're not successful, yes.
MR. MELLIN: Well, how would the FBI know if there was a successful attempt to -- or a successful effort to circumvent a SAMs?
MARK BEZY: Because if it's on the telephone, they're live monitoring; if it's in written, they're reading it. They copy it, they analyze it. They scrutinize all communication. And if it's a visitation, it's also -- like I say, it's live and it's recorded.
MR. MELLIN: Right. So they scrutinize them looking for these attempts to violate the SAMs, right?
MARK BEZY: Correct.
MR. MELLIN: That's the whole reason why there's this program set up, so that they can either live monitor the phone calls or look at the communications, right?
MARK BEZY: Correct. But I was told that if it was live monitoring and if they're questioning anything, they just kill the conversation.
MR. MELLIN: Right. And so as this is going on, the whole idea is the FBI agent on the case is trying to decode the messages that are being sent, correct?
MARK BEZY: Correct.
MR. MELLIN: So if there's a successful use of a code, the agent wouldn't even know about it, correct? That's the whole point.
MARK BEZY: Well, they're supposed to be trained. I would assume they're trained in the code, in the languages. And that's one of their primary duties, so I think they would be -- it just wouldn't be a routine agent.
MR. MELLIN: Well, you know it from your experience at BOP that not every violation is caught, correct?
MARK BEZY: Correct.
MR. MELLIN: Yesterday you said that the defendant in this case under his SAMs is entitled to only one 15-minute phone call?
MARK BEZY: That's in the SAMs he's under right now, yes.
MR. MELLIN: So he can only receive one 15-minute phone call?
MARK BEZY: I believe if he requests more, it can be granted. But the SAMs, as it's written, is one 15-minute call.
MR. MELLIN: Actually, the SAMs as it's written says he's entitled to at least a minimum of one phone call per month, correct?
MARK BEZY: Okay.
MR. MELLIN: Is that right?
MARK BEZY: Yes.
MR. MELLIN: So it's not that he only gets one, it's that he has to be given at least one, right?
MARK BEZY: He gets one call a month at minimum.
MR. MELLIN: And right now the determination on how many phone calls he gets while he's in his status here is up to the marshals, correct?
MARK BEZY: Yes.
MR. MELLIN: He can receive or make more phone calls than just one a month, right?
MARK BEZY: It's possible, yes.
MR. MELLIN: And then if he were, in fact, sent to ADX and if he were, in fact, assigned to the H unit, how many phone calls would he get there?
MARK BEZY: In the first phase he would get two 15-minute calls.
MR. MELLIN: Right. Two 15-minute calls how often?
MARK BEZY: Once a month.
MR. MELLIN: So it's not that he only gets one call, correct?
MARK BEZY: Well, he's in -- he's in H unit at that point, yes.
MR. MELLIN: We discussed yesterday a little bit the phases and the step-down processes, and I think there's some confusion. There are phases in the H unit, correct?
MARK BEZY: Yes.
MR. MELLIN: And there are how many phases?
MARK BEZY: There's three.
MR. MELLIN: And those phases allow an inmate to receive more privileges as they go through the phases, correct?
MARK BEZY: Correct.
MR. MELLIN: So as you go from Phase 1 to Phase 2, you are getting more phone calls, right?
MARK BEZY: Yes, you get -- yes.
MR. MELLIN: What do you get?
MARK BEZY: You get one extra phone call.
MR. MELLIN: How many more visits do you get?
MARK BEZY: Visits the same: Five.
MR. MELLIN: What kind of rec time do you get?
MARK BEZY: It's ten hours.
MR. MELLIN: And as you -- at least a minimum of ten hours, correct?
MARK BEZY: Yes.
MR. MELLIN: Right. So you can have more rec time than ten hours per week, correct?
MARK BEZY: It's possible, but it's normally -- if they say it's ten hours, it's ten hours.
MR. MELLIN: Well, when you say "if it's ten hours, it's ten hours," you've actually never been a warden at ADX, right?
MARK BEZY: No, but at Marion we had the same operation where they were given rec time and we didn't have the luxury of giving them extra rec time.
MR. MELLIN: Well, have you spoken to Warden Oliver and asked him that specific question, if he's going to limit an inmate in H unit to just ten hours?
MARK BEZY: No.
MR. MELLIN: So you don't have any personal knowledge to make that statement, correct?
MARK BEZY: No, I don't.
MR. MELLIN: Now, we talked about the three phases in the H unit, but there's also step down too, correct?
MARK BEZY: Yeah.
MR. MELLIN: Okay. So if an inmate who is in the H unit on a SAMs has that SAMs come down at some point in time -- you follow me so far?
MARK BEZY: Yes. There's an approval process for each phase.
MR. MELLIN: Right. Right. But if the SAMs comes down, that -- number one, that inmate is not going to be in the H unit any longer, correct?
MARK BEZY: If he gets through Phase 3, no. There's a J unit annex.
MR. MELLIN: And what happens at the annex?
MARK BEZY: They get more out-of-cell time. They eat one meal out of their cell. There's small recreation groups. That's in H unit -- excuse me. That's in H unit. That's Phase 3.
MR. MELLIN: Right. So now the inmate who you said yesterday has no contact with these individuals now has contact, correct?
MARK BEZY: But it's got to be approved. The institution has a screening committee. They meet, they review the inmate's -- there's a criteria they look at.
MR. MELLIN: Mr. Bezy, just for the record, can you tell me what you're looking at?
MARK BEZY: I'm looking at the supplement on H unit.
(Pause.)
MARK BEZY: The programming committee makes a determine [sic] on a case-by-case basis. There's no guarantee that an inmate's going to move from Phase 1 to Phase 2 or Phase 2 to Phase 3. It's a case-by-case basis. And eligibility for consideration does not equate to appropriateness for advancement to the next phase. They can meet every criteria that's required to move from Phase 1 to Phase 2, but they don't have to move them.
MR. MELLIN: That's fine. And thank you for reading from that, but my question was about when they're on Phase 3, this annex you're talking about, the inmate would have contact with other inmates, correct?
MARK BEZY: In Phase 3, it's part of the unit. They would have contact, and that's part of the program, yes.
MR. MELLIN: And then after Phase 3, they could actually move out of that whole area, correct, and they would be in the step-down process?
MARK BEZY: No, that's -- it is not up to the Bureau of Prisons for them to leave Phase 3, it's up to the FBI, the U.S. Attorney's Office and DOJ, and eventually it's up to the U.S. Attorney General. The Bureau of Prisons does not have the authority to move a guy out of H unit just on their own.
MR. MELLIN: Right. And let's be clear. That's because there's a SAMs on that person, right?
MARK BEZY: Right. Right.
MR. MELLIN: So if the SAMs is not renewed, right?
MARK BEZY: Correct.
MR. MELLIN: So there's no longer a SAMs, right?
MARK BEZY: Correct.
MR. MELLIN: And we're talking now five, ten, 12, 15 years out, right?
MARK BEZY: Right.
MR. MELLIN: With no SAMs, that inmate is no longer going to be in the H unit, correct?
MARK BEZY: Correct.
MR. MELLIN: Okay. So that inmate is now going to phase out of the H unit and they're going to go someplace else, right?
MARK BEZY: Yes.
MR. MELLIN: And when they go to this someplace else, they then are going to be in a step-down process, correct?
MARK BEZY: Well, it would more than likely be the general population program at the ADX. And then there's a step-down program, but, again, there's no guarantee that an inmate will move through that program based upon his offense. There's a number of factors: There's criminal history, the rationale why he was designated to the ADX, and for safety and security needs of the inmate.
MR. MELLIN: Right. Well, you're aware that there have been terrorism-convicted inmates who were on SAMs. When the SAMs was taken down they're no longer even -- well, they're certainly not in the H unit, correct?
MARK BEZY: Right.
MR. MELLIN: Some of them go into ADX general population, right?
MARK BEZY: Correct.
MR. MELLIN: And some of them have gone outside of the ADX altogether, correct?
MARK BEZY: Yes.
MR. MELLIN: But you'd agree with me that if you're in the step-down process, if you satisfy the first step and move on to the second step, you are receiving more privileges?
MARK BEZY: It's not so much that you satisfy the first step. Like, again, you can meet all the criteria that's required to be evaluated for your appropriateness to move to the next step. But if the committee does not feel it's appropriate, you will stay at your current level.
MR. MELLIN: The committee you're now talking about is the committee actually at ADX, right?
MARK BEZY: Correct.
MR. MELLIN: So that committee is the one who's dealing with the defendant -- or the inmate every day, right?
MARK BEZY: Correct.
MR. MELLIN: So they're seeing his progress every day, correct?
MARK BEZY: Correct.
MR. MELLIN: And there's an incentive in place to have him step down, correct?
MARK BEZY: There's an incentive, but all inmates will not step down and leave the ADX. Terry Nichols has not left the ADX since 1995. And there's a number of inmates that were at Marion -- I transferred from Marion to the ADX -- that are still there in the general population in the first phase of that program because he will never leave -- they'll never be stepped down.
MR. MELLIN: That's fine. But they're in ADX general population, right?
MARK BEZY: That's not a regular general -- it's a misnomer. It's not a regular general population of a United States penitentiary. At a United States penitentiary, the inmates, we lock them in their cells at ten o'clock at night, we unlock their cells at six o'clock in the morning. They have the opportunity to shower, they have the opportunity to walk to a communal dining room to eat. They work, they recreate. The general population at ADX is single-celled, single recreation. You come out of the cell, there's a minimum of two staff there with batons. You're in restraints, you're escorted to a recreation cage which is probably 10 by 20, you're put in there for your recreation or there's some indoor recreation. But you are never unescorted anyplace you go.
MR. MELLIN: They can be out of their cell from what time to what time?
MARK BEZY: Which prison?
MR. MELLIN: In what you were just discussing, in ADX general population.
MARK BEZY: In a regular USP, and the ADX --
MR. MELLIN: If you'd hold that. I was talking about what you were just discussing. I think you were just discussing the general population at ADX, correct?
MARK BEZY: Right.
MR. MELLIN: Okay. Even at ADX, in general population an inmate is allowed out of their cell from what time to what time?
MARK BEZY: They're not. They're allowed out of their cell for ten hours a week.
MR. MELLIN: Okay. But what are they doing during the day?
MARK BEZY: They're sitting in their cells.
MR. MELLIN: Or they're holding a job, right?
MARK BEZY: They don't work. There's only one or two inmates in a unit at the ADX who work, and they're called -- they're orderlies. Those are the only two people out of the 60 in that unit that we would offer a job. It would be approved by the captain. They sit in their cells, locked in their cells every day.
MR. MELLIN: They're locked in their cells at night. But during the day they have --
MARK BEZY: No, you're confusing a standard USP with the ADX. Each one has a general population, but it's apples and oranges, okay? The general population is a program at the ADX. There's the general population program, there's the control unit program, and then there's the special security program. Those are the three main and only programs at the ADX. At the ADX, the inmates are locked in their cells unless they come out for recreation or they have a medical appointment or they need to be seen by a doctor or they get their ten hours of rec a week. Their showers are in their cells. They shower in their cells. If they come out, there's a slot in the door, they back up to the door, they put their hands through, they're handcuffed and then they're put in leg irons, and then they're escorted by two staff to wherever they're going. And it can be more. It can be a lieutenant hold, it can be a three-man hold. It depends on the inmate. That's the only time they come out of their cells in the general population at the ADX. It's a whole different world than a regular USP like I ran at Terre Haute. That's an open population penitentiary. This is a -- it's a whole different game. You're mixing apples and oranges.
MR. MELLIN: The general population at ADX, you say they will be in their cells, right?
MARK BEZY: Correct.
MR. MELLIN: What is in their cell?
MARK BEZY: They have a shower.
MR. MELLIN: Okay. They have their own individual shower, right?
MARK BEZY: Correct.
MR. MELLIN: They have their own individual cell, right?
MR. BRUCK: Counsel has opened the door this far but we're objecting to going further.
THE COURT: Well, I think it's the witness that opened the door. The objection is overruled.
BY MR. MELLIN:
MR. MELLIN: In their cell they have their own shower, right?
MARK BEZY: Correct.
MR. MELLIN: So that's even different than the H unit, correct?
MARK BEZY: Correct.
MR. MELLIN: In the H unit, this more secure facility, the inmate doesn't even have their own shower in their own cell, right?
MARK BEZY: Correct.
MR. MELLIN: Here they do have a cell with a shower. They also have a bed, right?
MARK BEZY: A concrete bed.
MR. MELLIN: Well, a concrete bed. That's -- they have a mattress on top of the concrete bed, right?
MARK BEZY: Yes.
MR. MELLIN: Yes?
MARK BEZY: Yes.
MR. MELLIN: They have blankets, right?
MARK BEZY: Yes.
MR. MELLIN: Okay. They have a TV in their cell, right?
MR. BRUCK: Objection, your Honor.
THE COURT: Yeah, I think we've had enough of...
BY MR. MELLIN:
MR. MELLIN: They have heating in their cell, correct?
THE COURT: You may have that.
MARK BEZY: Correct.
MR. BRUCK: Objection, your Honor.
THE COURT: No, that may stand.
BY MR. MELLIN:
MR. MELLIN: They have air-conditioning in their cell, correct?
MARK BEZY: It's -- I don't know if it's called air-conditioning. It's a cool water/cool air system, but it keeps the climate -- yes.
MR. MELLIN: Okay. So, but it's temperature-controlled, right?
MARK BEZY: Yes.
MR. MELLIN: Now, actually, while we're talking about this, why don't we pull up Exhibit 1595, I think. I don't know if that's the right number. The photo?
(Counsel confer off the record.)
MR. BRUCK: For the witness only, your Honor?
MR. MELLIN: No, no, no, published, your Honor. This is the photo Mr. Bruck showed him yesterday.
MR. WATKINS: 5253?
MR. MELLIN: It's in color.
THE COURT: Do you know the number?
MR. MELLIN: I'm told it's Exhibit 3253.
THE COURT: Is that the one you want?
MR. MELLIN: Yes, your Honor. Thank you.
BY MR. MELLIN:
MR. MELLIN: Mr. Bezy, you were shown this photo yesterday, right?
MARK BEZY: Yes.
MR. MELLIN: And where exactly is this photo from?
MARK BEZY: That's the federal correctional complex in Florence, Colorado.
MR. MELLIN: Right. And so Florence is a city in Colorado, right?
MARK BEZY: Yes.
MR. MELLIN: What you see in the photo, though, it's very white everywhere, right?
MARK BEZY: Yes.
MR. MELLIN: So there was a recent snowfall in the foothills of Colorado?
MARK BEZY: I don't know if it was recent. There's snow on the ground.
MR. MELLIN: Well, when did you go out to ADX, in April?
MARK BEZY: April.
MR. MELLIN: How did it look?
MARK BEZY: It was high desert brown.
MR. MELLIN: Right. It's typically just high desert out there, right?
MARK BEZY: No, you get snow.
MR. MELLIN: Well, you get snow two or three times a year, right?
MARK BEZY: I've never been assigned there. I've been out there when there has been a lot of snow, though, too.
MR. MELLIN: Just so we're all clear just exactly where we are, as you look at this photograph, in the -- behind the ADX, or behind USP Florence, is the beginning of the foothills into the Rockies, right?
MARK BEZY: You're talking about up here?
MR. MELLIN: No, I would think those are the Rockies. I was talking about right here, correct? Those are the foothills?
MARK BEZY: I'm not from Colorado. I wouldn't -- it's possible.
MR. MELLIN: All right. These are the Rockies, correct?
MARK BEZY: Correct.
MR. MELLIN: The Rocky Mountains, right? Yes?
MARK BEZY: Yes.
MR. MELLIN: Okay. Florence is located just south of Colorado Springs, right?
MARK BEZY: I believe so.
MR. MELLIN: You're not sure where Florence is located?
MARK BEZY: I don't -- when I go there, I stay in Canyon City. I don't go to Colorado Springs. But you go through Colorado Springs to get to Florence, yes.
MR. MELLIN: And just so everyone knows, Colorado Springs is south of Denver, correct?
MARK BEZY: Yes.
MR. MELLIN: And as you go south of Florence, you're actually into the high plain deserts, correct?
MARK BEZY: Correct.
MR. MELLIN: And so in that area, there's very little snowfall year-round, correct?
MARK BEZY: I don't live there. I don't know.
MR. MELLIN: Now, when you go to ADX, you can fly right into Colorado Springs, right?
MARK BEZY: No, I fly into Denver and drive.
MR. MELLIN: Well, is that because it's cheaper to fly into Denver than it is to fly into Colorado Springs?
MARK BEZY: It's when you're flying on the government dime, you can only fly certain places.
MR. MELLIN: All right. Well, how far is it from Denver to Colorado Springs, then? At least you'll know that.
MARK BEZY: It's about a two-and-a-half-hour drive.
MR. MELLIN: Yeah? And Colorado Springs to Florence is about how far?
MARK BEZY: I mean, it's about a two-and-a-half-hour drive from Denver all the way to Canyon City.
MR. MELLIN: Right. And that drive is through the metropolitan Denver area, correct? You start there, right?
MARK BEZY: I don't go through the -- I go the south loop, the new, and then --
MR. MELLIN: I25?
MARK BEZY: Yes.
MR. MELLIN: So you fly into -- I didn't know we were going to get into all of this, but you fly into -- or is it DIA? You fly into the Denver Airport, right?
MR. BRUCK: I don't think we should be getting into all of this. We object on relevance.
THE COURT: No, overruled. Go ahead.
BY MR. MELLIN:
MR. MELLIN: You fly into the Denver Airport and you have to go for quite a distance around the metropolitan Denver area, right?
MARK BEZY: I plug it into my Garmin and follow my Garmin.
MR. MELLIN: Right. And then your Garmin leads you right down I25, right?
MARK BEZY: Correct.
MR. MELLIN: And you go right down I25 from Denver to Colorado Springs, right?
MARK BEZY: Correct.
MR. MELLIN: And as you're driving down that drive, it's a pretty drive as you're going south. The Rockies are on your right, you have the plains on your left, right?
MARK BEZY: Okay.
MR. MELLIN: Is that right?
MARK BEZY: I'll take your word for it.
MR. MELLIN: All right. And you're going through cities on the way down there, correct?
MARK BEZY: Yes.
MR. MELLIN: And you get to Colorado Springs. It was where the Air Force Academy is at, correct?
MR. BRUCK: I object to relevance.
THE COURT: Overruled.
MARK BEZY: Yes.
BY MR. MELLIN:
MR. MELLIN: Okay. And that conveniently, though, is not shown on this photograph, is it, any of Colorado Springs?
MR. BRUCK: I object to the characterization of convenience.
MR. MELLIN: I will rephrase.
THE COURT: Okay.
BY MR. MELLIN:
MR. MELLIN: Is Colorado Springs shown on this photograph?
MARK BEZY: No, it's too far away.
MR. MELLIN: Well, how far away is the southern portion of Colorado Springs from Florence?
MARK BEZY: An hour plus.
MR. MELLIN: You believe it's an hour plus?
MARK BEZY: Yeah.
MR. MELLIN: Okay. And then as you go south of Colorado Springs, there's actually a fort there, right?
MARK BEZY: Yes.
MR. MELLIN: Fort Carson?
MARK BEZY: Yes.
MR. MELLIN: A very big Army installation, right?
MARK BEZY: Yes.
MR. MELLIN: How far is Fort Carson from USP Florence?
MARK BEZY: 45 minutes to an hour, I believe. I've never timed it.
MR. MELLIN: Okay. The ADX, when we were talking about it having heating, it's a very modern facility, right?
MARK BEZY: It's 20 years old, yes.
MR. MELLIN: In the lifetime of BOP, that's a pretty modern facility, though, right?
MARK BEZY: Yes.
MR. MELLIN: Okay. I mean, it's one of the newer facilities, correct?
MARK BEZY: No, it's not one of the newer ones. There's a lot more newer ones. But it's been activated for 20 years.
MR. MELLIN: And it's got all of the latest upgrades when it comes to heating and cooling, right?
MARK BEZY: I've never checked into that, but --
MR. MELLIN: Well, an inmate at ADX is not going to be necessarily hot or cold; they're going to monitor the temperature, right?
MARK BEZY: Right. There's a facility department there that takes care of the heating and the...
MR. MELLIN: An inmate at ADX is permitted visitors, right?
MARK BEZY: Correct.
MR. MELLIN: Even an inmate in the H unit is permitted visitors, right?
MARK BEZY: Yes. They're all noncontact visits at the ADX.
MR. MELLIN: How many visits is an inmate in the H unit permitted per month?
MARK BEZY: I believe it's five.
MR. MELLIN: Those are five social visits, right?
MARK BEZY: Correct.
MR. MELLIN: How many legal visits is an inmate in the H unit permitted?
MR. BRUCK: I object to this, your Honor. That's not relevant to any of the topics we discussed.
MR. MELLIN: Your Honor, I believe it goes straight to --
THE COURT: Overruled. You may have it. It goes to the conditions of the SAMs.
MARK BEZY: I'm not sure but they have to request them and there's only certain days of the week that they -- H unit inmates are allowed in the visitation room. So if it's available and the room's available, they'll grant the visit.
BY MR. MELLIN:
MR. MELLIN: Right. There's an unlimited number of meetings that an inmate can have, legal meetings, correct?
MARK BEZY: Right. But there's only certain days that they do H unit visits at the ADX.
MR. MELLIN: Right. The social visits that an inmate can have, the five visits per month, those include family members, right?
MARK BEZY: Spouses, parents, siblings. Who's approved by the SAMs, yes.
MR. MELLIN: Right. So whoever's on the SAMs list can go see the inmate at ADX, correct?
MARK BEZY: Right.
MR. MELLIN: An inmate can ask for and get a SAMs modified to have other individuals on the SAMs list, right?
MARK BEZY: He can ask for it. It's up to the FBI and the U.S. Attorney's Office to amend the SAMs.
MR. MELLIN: Right. But if there is no objection to it and there's no basis under the Code of Federal Regulations to exclude it, then that will be permitted, right?
MARK BEZY: It's possible, yes.
MR. MELLIN: And so an inmate can ask that a new person be added to the list, right?
MARK BEZY: They can request but they have to be approved.
MR. MELLIN: And so if this defendant with his SAMs currently that he has goes to ADX H unit, he immediately is going to be permitted five social visits a month with people on his approved list, correct?
MARK BEZY: Correct.
MR. MELLIN: He'll be able to meet with family or whoever's on that list, right?
MARK BEZY: Yes.
MR. MELLIN: When an inmate is at ADX, if they meet someone new, they can add that person, or make a request to add that person as well, right?
MARK BEZY: What do you mean if they meet someone new?
MR. MELLIN: If they meet a new person?
MARK BEZY: No; there has to be a prior relationship before incarceration.
MR. MELLIN: Is it your testimony that you cannot modify a SAMs to allow for a new person that you did not know prior to the institution of the SAMs to be added to the list?
MARK BEZY: I was giving you the BOP policy. The BOP policy is there must be a prior relationship to incarceration. And again, I'm sure the FBI and U.S. Attorney's Office -- because as the warden says, there's a great partnership there -- they would ask what -- you know, they would ask the warden, because they get input from the ADX staff too, and it may not be approved.
MR. MELLIN: Right. But it may be approved, right?
MARK BEZY: It's up to the U.S. Attorney's Office and the FBI.
MR. MELLIN: And you're aware, though, that at times modifications have been made to allow new girlfriends or boyfriends or whatever to be added to a list, right?
MARK BEZY: I'm not aware of any, no.
MR. MELLIN: Are you aware that an inmate is allowed to write an unlimited number of letters?
MARK BEZY: Correct.
MR. MELLIN: He can receive an unlimited number of letters, correct?
MARK BEZY: If they're on the approved list, he can write to them and he can receive from them. If not, it's rejected correspondence.
MR. MELLIN: Right. But if there is a new person added, they can write to that person and receive communications from that person with an unlimited basis each month, correct?
MARK BEZY: Right. If it's approved by the FBI and the U.S. Attorney's Office, yes.
MR. MELLIN: So if this defendant were sent to ADX, to the H unit, even under the SAMs as it exists today, he can write an unlimited number of letters to people on his family and friend list, correct?
MARK BEZY: On the approved list, yes.
MR. MELLIN: And he can receive an unlimited number back from them, correct?
MARK BEZY: On the approved list, yes.
MR. MELLIN: In addition to that, he can write an unlimited number of letters to -- or what's called legal mail, right?
MARK BEZY: To the attorney of record, yes.
MR. MELLIN: Okay. And that legal mail is not monitored. Is that right?
MR. BRUCK: I'm going to object to this.
THE COURT: No, your may have it.
MARK BEZY: It's -- when it comes in, it's opened, it's screened for contraband, and then it's delivered to the inmate. But on certain circumstances the court can grant access to review legal material.
BY MR. MELLIN:
MR. MELLIN: But in the normal course, if an inmate writes legal mail on some piece of correspondence, no one is allowed to open that up and look at it, correct?
MARK BEZY: No, we open it in front of the inmate, we search it, we do a -- we look at it, we search the pages, we make sure there's nothing concealed in it as far as contraband that we could see between the pages, pages stuck together, something behind a stamp, something behind -- we can look at it very closely. And everything's x-rayed to begin with, so it's opened in front of the inmate and then it's given to the inmate.
MR. MELLIN: Right. But no one can read it, correct?
MARK BEZY: If the court authorizes it, it can be read.
MR. MELLIN: Right. But that's the exception to the general rule. Isn't that right?
MARK BEZY: Right.
MR. MELLIN: So the general rule is if an inmate writes on correspondence, "legal mail," and it is sent out, no one from BOP is opening that letter, correct?
MARK BEZY: I think he may have to seal it in front of -- it may have to be sealed in front of the inmate [sic] or --
MR. BRUCK: Your Honor, I object to this line of questioning because it does not include that the limitation is to counsel of record; not just any lawyer.
MR. WEINREB: Objection, your Honor.
THE COURT: No, I think that was referred to. But anyway, go ahead.
MR. WEINREB: Your Honor, he's testifying.
MR. MELLIN: I'll be happy to just say that.
BY MR. MELLIN:
MR. MELLIN: The defendant -- or excuse me. The inmate decides that he is going to send out something and he writes "legal mail" on it, correct?
MARK BEZY: Correct.
MR. MELLIN: The inmate has to write down the address of approved counsel, right?
MARK BEZY: There is a disclaimer that has to be put on the envelope by the inmate. If it's not put on, then it's not considered legal mail coming in or going back out.
MR. MELLIN: Right.
MARK BEZY: So there is an official disclaimer put on it, and it has to be the specific BOP disclaimer for legal mail.
MR. MELLIN: Right. The disclaimer is on the envelope. The inmate writes "legal mail." The address of the attorney is on that envelope. Once that happens, BOP is not opening that mail, correct?
MARK BEZY: Well, they can check to see if there is an attorney at that address. Yes, the SIS office would monitor that. And in certain cases, in conjunction with an FBI court order, they could open it.
MR. MELLIN: In general, does BOP open legal mail?
MARK BEZY: Coming in or going out?
MR. MELLIN: Going out, let's start with.
MARK BEZY: Going out it's sealed in front of staff and it's given to staff and then it's sent out.
MR. MELLIN: So the answer to that is no, they don't open it, correct?
MARK BEZY: It's not -- they seal it -- it's sealed in front of staff and then it's sent out.
MR. MELLIN: Who seals it?
MARK BEZY: Staff or the inmate can seal it.
MR. MELLIN: Does BOP go through the pages of whatever is in that document?
MARK BEZY: Yes, they'll do a cursory search.
MR. MELLIN: Do they read it?
MARK BEZY: No.
MR. MELLIN: Right. They don't have any right to read it, correct?
MARK BEZY: Correct.
MR. MELLIN: Again, legal mail is unlimited, correct?
MARK BEZY: Yes.
MR. MELLIN: Legal mail coming in is unlimited, correct?
MARK BEZY: Yes.
MR. MELLIN: You're aware that inmates have abused that process, correct?
MR. BRUCK: Objection to this.
THE COURT: Yeah, I think we've gone far enough on this, Mr. Mellin.
BY MR. MELLIN:
MR. MELLIN: Concerning contacts or communications, you're aware that inmates can file lawsuits, right?
MARK BEZY: Yes.
MR. MELLIN: You know that from your experience as the warden, right?
MARK BEZY: Right.
MR. MELLIN: Your name would be put on pleading after pleading, right? The inmate versus the warden and the Department of Justice?
MARK BEZY: They have to go through the administrative remedy process. They have to exhaust that first before they can go into civil court, yes.
MR. BRUCK: Beyond the scope, your Honor.
THE COURT: Well, we'll wait until the next question.
BY MR. MELLIN:
MR. MELLIN: And inmates can sue to change the conditions of confinement, correct?
MR. BRUCK: Same objection.
MR. MELLIN: Your Honor, this goes directly to the SAMs and what limitations would be on --
THE COURT: All right. Okay.
BY MR. MELLIN:
MR. MELLIN: Inmates can sue to change the conditions of confinement, correct?
MARK BEZY: Yes.
MR. MELLIN: You know that because, in fact, you're involved in a lawsuit just along those lines, right?
MARK BEZY: Excuse me?
MR. MELLIN: You're involved in a lawsuit regarding the changing of conditions of confinement?
MARK BEZY: I am?
MR. MELLIN: Are you? You're not?
MARK BEZY: In which case?
MR. MELLIN: Is there a case that you're involved with in Colorado concerning the conditions of ADX?
MARK BEZY: Yes.
MR. MELLIN: You're aware that a defendant can -- or excuse me -- an inmate can write a book, right?
MARK BEZY: There's a process they go through for manuscripts, yes.
MR. MELLIN: They can write a book even if they're on SAMs at the H unit, right?
MR. BRUCK: Objection. This is a misleading question. They can write whatever they want.
MR. WEINREB: Your Honor, if Mr. Bruck is testifying, it's not appropriate.
THE COURT: Well, you can point it out on redirect.
BY MR. MELLIN:
MR. MELLIN: An inmate on the H unit can write a book, correct?
MARK BEZY: I believe so.
MR. MELLIN: Inmates on death row write books, correct?
MARK BEZY: Yes.
MR. MELLIN: You know that from your own experience, correct?
MARK BEZY: Yes.
MR. MELLIN: Mr. Hammer wrote a book, right?
MR. BRUCK: Objection to --
THE COURT: Yes.
MR. BRUCK: -- particular inmates.
THE COURT: Yes, I think the other answers were sufficient. We don't need specific instances.
BY MR. MELLIN:
MR. MELLIN: Assuming an inmate has no SAMs restrictions, or the SAMs that were in place at one time now are no longer in place, that book -- if an inmate writes a book, that book can be sent to anyone, correct?
MARK BEZY: I don't think it can be sent to staff, but it can be sent to outside people, yes.
MR. MELLIN: Right. It can be sent to anyone in the outside world, right?
MARK BEZY: Yes.
MR. MELLIN: You would agree that inmates in USPs or ADX communicate with each other almost every day, correct?
MARK BEZY: Yes, because their rec cages are side by side.
MR. MELLIN: And it's not only that their rec cages are side by side, but they can communicate through their cells, correct?
MARK BEZY: Yes, they can use the vent -- some of the toilets, yes.
MR. MELLIN: Right. The inmates get somewhat ingenious with this method of communication, right?
MARK BEZY: Yes.
MR. MELLIN: So what they do, they clear the water out of their toilets or out of their sinks and they communicate through the plumbing to each other, right?
MARK BEZY: Yes.
MR. MELLIN: And that happens repeatedly every day, right?
MARK BEZY: It happens, yes.
MR. MELLIN: They send out things called kites, correct?
MARK BEZY: Yes.
MR. MELLIN: Do you know what a kite is?
MARK BEZY: Yes.
MR. MELLIN: What is a kite?
MARK BEZY: It's a written message, a letter.
MR. MELLIN: And how is it --
MR. BRUCK: Objection. The question is conflating H unit with ADX generally, and it's -- we would object to conflating these two different institution units.
THE COURT: Yeah, I think where there are possible differences, you should be clear which you're addressing.
MR. MELLIN: That's fine.
BY MR. MELLIN:
MR. MELLIN: Well, I'm not sure, Mr. Bezy, if you have experience on the H unit, but do you have experience on the H unit enough to comment on whether or not kites are being sent between inmates on the H unit?
MARK BEZY: No, I don't.
MR. MELLIN: But you are aware, though, that kites are sent in general population, correct?
MARK BEZY: Correct.
MR. MELLIN: They are even sent in general population at ADX, right?
MARK BEZY: I believe so, yes.
MR. MELLIN: And these messages are sent by what's called fishing, correct?
MARK BEZY: Yes.
MR. MELLIN: And what is fishing?
MARK BEZY: You take thread out of a T-shirt, underwear, you wrap it around your kite, and from underneath your door you can sling it down the range. But then you can also modify the doors to prevent that from occurring too.
MR. MELLIN: You're aware that inmates play chess with each other, right?
MR. BRUCK: I object to the scope, your Honor.
MR. MELLIN: Your Honor, it goes directly to communications.
THE COURT: Well, I think it's getting cumulative. The objection is sustained.
MARK BEZY: At some institutions, yes.
THE COURT: Mr. Bezy, wait for the next question.
BY MR. MELLIN:
MR. MELLIN: One thing I failed to ask you about is if an inmate sends a letter out to someone -- in fact, even on a SAMs, if an inmate sends something out to someone who's approved on his SAMs list, BOP cannot keep that person from posting whatever that information was on the Internet, correct?
MARK BEZY: I believe there is some conditions that they comply -- because when the -- on the phone, you know, they'll read the SAMs to the caller, and there may even be something written that they have to sign about written correspondence. I know there is. And on some units there are -- you have to sign that you won't post anything.
MR. MELLIN: Right. So you sign that you won't post anything to get onto the list, right?
MARK BEZY: Right.
MR. MELLIN: But once you're on the list, if you receive something, you can still post it, right?
MARK BEZY: Yes. And then as a warden, I'd ban you from any type of correspondence or contact with that inmate for the rest of your life.
MR. MELLIN: Correct. But yet it's too late. It's now been posted, correct?
MARK BEZY: Correct. You'd never post it again, though.
MR. MELLIN: All right. But if that message wants to be sent and an inmate wants to send that message, they can use someone on their approved list to post that message on the Internet and there's nothing BOP can do to stop that at that moment?
MARK BEZY: Well, if it -- well, I mean, like I said, everything is read by the FBI and the BOP. It's scanned, it's recorded. If there's any indication that that would happen, they would not let that letter out. It would be rejected.
MR. MELLIN: It could be anything, though, right? It could just be, "Hi, mom. Here's what I'm up to," right?
MARK BEZY: Yes.
MR. MELLIN: And that could be posted immediately on the Internet, correct?
MARK BEZY: Correct.
MR. MELLIN: It could also be a coded message that the agent doesn't understand is a coded message, right?
MR. BRUCK: Objection.
THE COURT: Sustained.
MARK BEZY: I would hope they --
MR. MELLIN: You don't have to answer that, Mr. Bezy.
BY MR. MELLIN:
MR. MELLIN: Is it fair to say that there's no way for BOP to guarantee that no word from an inmate could ever be posted on the Internet?
MR. BRUCK: This has been asked and answered several times.
THE COURT: Sustained. Sustained.
BY MR. MELLIN:
MR. MELLIN: You mentioned earlier that there could be communication when an inmate is on rec time. Is that right?
MARK BEZY: Yes.
MR. MELLIN: And the rec time we're talking about is the ten hours -- at least ten hours a week that an inmate is allowed to go out and recreate, right?
MARK BEZY: Are we talking H?
MR. MELLIN: We'll start with H.
MARK BEZY: Okay. Yes.
MR. MELLIN: Yes? And if we -- H is going to have ten hours a week. If you're out of H, how many hours do you get a week?
MARK BEZY: If they're in H, like I said earlier, it's -- the place has got -- it's got video cameras and it's got microphones. And if they want to overhear -- if law enforcement wants to overhear, they will overhear.
MR. MELLIN: Right. But that happens day in and day out, correct?
MARK BEZY: Right.
MR. MELLIN: There's communications between inmates day in and day out that BOP overhears, right?
MARK BEZY: Right.
MR. MELLIN: So if an inmate, starting with the H unit, is outside doing recreation, there can be another inmate outside at the same time, correct?
MARK BEZY: Right. But if there's a question, there's also indoor recreation areas that are separate from the outdoor recreation areas. So you can segregate. You can put one inmate outside, you can put one inmate inside if you have any questions.
MR. MELLIN: My point is two inmates can be outside recreating at the same time, correct?
MARK BEZY: Correct.
MR. MELLIN: Even on the H unit?
MARK BEZY: Right. There's over-hearings going.
MR. MELLIN: Right. And those two inmates can talk back and forth to each other, correct?
MARK BEZY: That's what ADX staff say, yes.
MR. MELLIN: Now, if the SAMs comes down and an inmate is no longer on the H unit, they have more ability to communicate during rec time, correct?
MARK BEZY: Correct.
MR. MELLIN: And especially they have more opportunity if they move on to a USP at some point, correct?
MARK BEZY: Correct.
MR. MELLIN: Because at a USP, they're going to have the availability to play sports and do all types of other activities, correct?
MR. BRUCK: Objection to going on to a USP.
THE COURT: Yeah, sustained. Sustained. Let's stay with the ADX.
BY MR. MELLIN:
MR. MELLIN: Well, if an inmate has their SAMs removed, they at some point can get into the stepped-down process, right?
MARK BEZY: Yes.
MR. MELLIN: And if they succeed in the stepped-down process --
MR. BRUCK: This has all been asked and answered and he's doing the same thing.
THE COURT: I think it's cumulative.
MR. MELLIN: I was just trying to link it to the recreation, your Honor.
THE COURT: Let's move along.
BY MR. MELLIN:
MR. MELLIN: Do you know the number of people -- the number, not the names -- the number of people that are on the defendant's approved list in this case?
MARK BEZY: No, I do --
MR. BRUCK: Objection, your Honor.
THE COURT: Sustained.
MR. MELLIN: With the Court's indulgence.
(Pause.)
BY MR. MELLIN:
MR. MELLIN: Would you agree that the more people that are on an approved list, there is a greater risk that there could be a violation?
MR. BRUCK: Objection.
THE COURT: Sustained.
MR. MELLIN: Thank you.
REDIRECT EXAMINATION BY MR. BRUCK:
MR. BRUCK: Mr. Bezy, starting back to the SAMs process again, you were asked yesterday about the SAMs being allowed to expire at the end of the year?
MARK BEZY: Correct.
MR. BRUCK: Are you aware whether or not there is an automatic process to trigger the renewal process within the Department of Justice --
MARK BEZY: Yes.
MR. BRUCK: -- by the FBI?
MARK BEZY: Yes. It's tracked, and I believe it's -- about three to four months out they start the renewal process.
MR. BRUCK: All right. And so the people involved are notified that the process is ready for renewal and needs to be proceeded with?
MARK BEZY: Correct.
MR. BRUCK: Are you aware of any SAMs inmate convicted of a terrorist offense who had their SAMs discontinued just because the government forgot to renew the SAMs?
MARK BEZY: No.
MR. BRUCK: I believe the government provided us and you with the total number of SAMs inmates who have been convicted of terrorism-related offenses and assigned to ADX since it opened in 1994. Do you have that -- do you have that statistic?
MARK BEZY: Yes, I do.
MR. BRUCK: And what -- how many SAMs inmates convicted of terrorism-related offenses have been assigned to ADX since it opened in 1994?
MARK BEZY: Thirty-four.
MR. BRUCK: Thank you. There was some discussion about being transferred out of ADX. Based on everything you know about the regulations, procedures, policies of the Federal Bureau of Prisons in which you spent a 28-year career, is there any likelihood that Mr. Tsarnaev will be transferred out of ADX no matter what the result of his conduct, step-down programs or anything else?
MR. MELLIN: Objection.
THE COURT: Sustained.
BY MR. BRUCK:
MR. BRUCK: Now, you were questioned a moment ago about the three -- about the phase-down program at -- on H unit for inmates who have SAMs?
MARK BEZY: Correct.
MR. BRUCK: Am I correct in thinking that in order -- and you said that the -- the Phase 1 to Phase 2 basically involves one more phone call a month?
MARK BEZY: Yes.
MR. BRUCK: And a couple of other minor changes in the way people walk to the showers?
MARK BEZY: Yeah, they get unescorted to the shower and they may get a -- yes.
MR. BRUCK: Okay. And then for -- and that does not affect the amount of contact -- or whether the person is allowed contact with other inmates on the unit. Is that correct?
MARK BEZY: Correct.
MR. BRUCK: Phase 3 does allow some greater interaction with other SAMs inmates on H unit, correct?
MARK BEZY: Correct.
MR. BRUCK: And for that reason, in order to advance to Phase 3, the SAMs actually has to be modified, correct?
MARK BEZY: Correct.
MR. BRUCK: And that modification is up to the Department of Justice, not the Bureau of Prisons?
MARK BEZY: Correct.
MR. BRUCK: All right. Are there inmates at H unit now who have spent many years on H unit without ever being approved to go to Phase 3 and have a little bit of contact with other inmates?
MR. MELLIN: Objection.
THE COURT: Overruled.
You may answer.
MARK BEZY: Yes.
BY MR. BRUCK:
MR. BRUCK: Okay. By contrast, you also talked about the step-down program, correct?
MARK BEZY: Right.
MR. BRUCK: And that is for people who are not on H unit?
MARK BEZY: Correct.
MR. BRUCK: But are at ADX?
MARK BEZY: Correct.
MR. BRUCK: And for most inmates, that is designed to eventually get people transferred out of ADX?
MARK BEZY: Yes.
MR. BRUCK: But so long as someone stays at ADX, you've described the conditions there, right?
MARK BEZY: Correct.
MR. BRUCK: And is it your testimony that Mr. Tsarnaev belongs to two categories of inmates that would require him to stay at ADX?
MARK BEZY: It would have impact, yes, and it's -- his CIM of special supervision --
MR. BRUCK: Excuse me. CIM stands for what?
MARK BEZY: Central Inmate Monitoring. Special supervision and broad publicity.
MR. BRUCK: Okay. I'm sorry. Special supervision --
MARK BEZY: Special supervision and broad publicity.
MR. BRUCK: Okay. So special supervision is one categorization of an inmate?
MARK BEZY: Yes. It's based upon the nature of his offense.
MR. BRUCK: Based on the nature of the offense?
MARK BEZY: Correct.
MR. BRUCK: Which is not something that he can change?
MARK BEZY: No.
MR. BRUCK: Or that will ever change?
MARK BEZY: No.
MR. BRUCK: And that is a factor that would require him, in your opinion, to stay at ADX?
MARK BEZY: Yes.
MR. BRUCK: And, in fact, there are inmates who have been convicted of similar offenses who have been at ADX for 20 years or more?
MR. MELLIN: Objection.
THE COURT: Overruled.
You may answer it.
MARK BEZY: Yes, Terry Nichols is there.
BY MR. BRUCK:
MR. BRUCK: Who is the --
MARK BEZY: He was the --
MR. MELLIN: Objection, your Honor.
THE COURT: Sustained.
BY MR. BRUCK:
MR. BRUCK: And in addition, you mentioned another classification that would separately require him to stay at ADX?
MARK BEZY: Broad publicity. Where everybody -- basically, there's so much press about him, that everybody -- everybody would know who he is.
MR. BRUCK: All right. And the reason that that would require him to stay at ADX rather than be transferred to another institution is what?
MARK BEZY: In my opinion, there would be other inmates in different populations that would want to do great bodily harm to him.
MR. BRUCK: Okay. He could not be safely transferred out of ADX?
MARK BEZY: No.
MR. BRUCK: Mr. Mellin asked about challenges to the SAMs restrictions in court?
MARK BEZY: Yes.
MR. BRUCK: To your knowledge, has any court, any court --
MR. MELLIN: Objection.
THE COURT: I haven't heard the question.
MR. BRUCK: May I finish the question?
THE COURT: Yes, go ahead.
BY MR. BRUCK:
MR. BRUCK: Has any court ever removed a SAMs classification from an inmate?
MARK BEZY: No.
MR. MELLIN: Your Honor, objection. He doesn't have a basis of knowledge for that.
THE COURT: The answer may stand.
MR. BRUCK: If you would bear with me just one moment, your Honor.
(Counsel confer off the record.)
MR. BRUCK: That's all we have. Thank you very much.
MR. MELLIN: Your Honor, very briefly?
THE COURT: Okay.
RECROSS-EXAMINATION BY MR. MELLIN:
MR. MELLIN: Mr. Bezy, how many legal cases have you read to -- that form the basis of your last statement that no court has ever done something?
MARK BEZY: It came from your FBI female agent that's over the national counterterrorism task force.
MR. MELLIN: You're aware that courts have, and the parties have agreed based on courts' decisions, to modify SAMs, correct?
MR. BRUCK: Objection, your Honor. This is a legal conclusion --
THE COURT: Well, no. Go ahead. You may answer it.
MR. BRUCK: -- regarding a Court's decision.
THE COURT: You may have it.
MARK BEZY: I'm going by what the FBI subject matter expert told us the other day in a meeting.
BY MR. MELLIN:
MR. MELLIN: Okay. So you're basing your entire testimony here in this court --
MR. BRUCK: Objection to his entire testimony.
MR. MELLIN: No -- on this point.
THE COURT: Start the question again.
BY MR. MELLIN:
MR. MELLIN: You're basing your testimony on that point in this court based on a conversation that you had on Tuesday. Is that right?
MARK BEZY: She's the leader of the national joint terrorism task force who you would think would know it. And I took her word for it, yes.
MR. MELLIN: You were asked about two factors that Mr. Bruck said would have an impact on the defendant's transfer out of ADX, right?
MARK BEZY: Correct.
MR. MELLIN: How many total factors are there?
MARK BEZY: There's a number of them, yes.
MR. MELLIN: Right. How many?
MARK BEZY: Offhand, I don't know. Well --
MR. BRUCK: Relevance.
THE COURT: Overruled.
MR. BRUCK: It's also misleading, your Honor. We think it implies that more than one is required to keep someone at ADX.
MR. MELLIN: Your Honor, I object to that comment.
THE COURT: No, you may have the question.
MARK BEZY: I don't know. There's a number of them.
BY MR. MELLIN:
MR. MELLIN: Right. As you sit here today, you don't even know the answer to that question, do you?
MARK BEZY: I have a policy right here. If I need to know it, I can look up the policy.
MR. MELLIN: I'm asking you, as you sit here today, you don't even know the number of factors the BOP would have to consider to determine whether or not the defendant will be transferred out of ADX?
MARK BEZY: I made the initial recommendation --
MR. MELLIN: Sir, if you could please just answer my question.
MARK BEZY: Okay. Could you repeat it?
MR. MELLIN: As you sit here right now, you don't even know the number of factors that are involved in the determination of deciding if the defendant would be sent out of ADX, correct?
MARK BEZY: It can be one factor, correct.
MR. MELLIN: You don't know the number, correct?
MARK BEZY: The total number, no. But I know the numbers that are on him, and it doesn't take all the factors to be applicable.
MR. MELLIN: And you're testifying as an expert in this field, correct?
MARK BEZY: Correct.
MR. MELLIN: Yet you don't even know the other factors that are involved, correct?
MARK BEZY: There are a number of them. There's escape risk, sex offenders, drug dealers, sentence length. I mean, you can go on and on and on if you want to.
MR. MELLIN: Right. There's a very long list and you cherry-picked two out of it?
MARK BEZY: I didn't cherry-pick. That's what --
MR. BRUCK: Objection to the characterization of cherry-picking.
THE COURT: Well, the witness has contradicted it, so we'll just let it stand.
BY MR. MELLIN:
MR. MELLIN: There's a very long list and you just talked about two, correct?
MARK BEZY: No, that's what the Bureau of Prisons in their professional judgment put on him as two assignments necessary to provide adequate security for him.
MR. MELLIN: Right. And all I'm asking, those other factors could override the one or two factors you've talked about, correct?
MARK BEZY: It's possible but not likely.
MR. MELLIN: And it's -- that decision is not made by Mr. Bezy, it's made by the people at ADX, correct?
MARK BEZY: No, it's made by -- this was made by a case manager, can make a recommendation; the institution can be; the region can approve it; the central office can do it. It's made by the professionals in the Bureau of Prisons.
MR. MELLIN: It's not made by you, correct?
MARK BEZY: Correct.
MR. MELLIN: Thank you.
THE COURT: All right, Mr. Bezy. Thank you. You may step down.
(The witness is excused.)