In less than a week there have been three developments with regard to the so-called Colonies political corruption case, two of which auger in favor of the defendants and one potentially benefiting the prosecution.
Last May, a specially impaneled criminal grand jury indicted the co-managing principal of the Colonies Partners, Jeff Burum, former county supervisor Paul Biane, former sheriff’s deputy union president and assistant assessor Jim Erwin, and Mark Kirk, the former chief of staff for supervisor Gary Ovitt, on conspiracy, extortion and bribery charges.
According to that indictment, Burum, who was then employing Erwin as a consultant, in 2006 arranged to have Erwin prepare mailers revealing Postmus’ drug use and homosexuality and Biane’s insolvency during that year’s election season, while Postmus, who was then chairman of the board of supervisors, was vying for assessor and Biane, who was vice chairman of the board of supervisors, was campaigning on behalf of a measure to boost supervisorial salaries. Ultimately, according to the indictment, Burum and Erwin withheld those mailers.

Bill Postmus

In late November 2006, after Postmus was elected assessor and the measure to up the supervisors’ salaries passed, Postmus and Biane joined with supervisor Gary Ovitt to approve a $102 million settlement of a lawsuit the Colonies Partners had filed in 2002 over flood control issues at the Colonies Partners’ Colonies at San Antonio and Colonies Crossroads residential and commercial developments in northeast Upland. Between February 2007 and June 2007, Burum then provided separate $100,000 checks to each of three political action committees (PACs) founded by or which prosecutors allege were secretly controlled by Erwin, Kirk and Biane, known as the Committee for Effective Government PAC, the Alliance For Ethical Government PAC, and the San Bernardino County Young Republicans PAC, respectively. In June 2007, Burum provided two separate $50,000 checks to two political action committees founded or co-founded by Bill Postmus, Republicans for a Conservative Majority PAC and the Inland Empire PAC. The latter political action committee was, prosecutors maintain, created by Postmus in conjunction with his business partner and political associate, Dino DeFazio. Upon becoming assessor, Postmus appointed Erwin to the post of assistant assessor.
Prosecutors allege that the contributions to the political action committees constituted bribes paid in exchange for the vote to approve the settlement. In a previously filed case, DeFazio was charged with six felony counts of perjury pertaining to what prosecutors allege were lies or misrepresentations DeFazio made when he was brought before a grand jury in October 2009 and said that the Inland Empire PAC was controlled by himself and two others, Mike Gallagher and Jeff Bentow, and was independent of Postmus. Gallagher and Bentow told investigators they were unaware that they had been designated as directors of the Inland Empire PAC.
In March 2011, Postmus pleaded guilty to conspiring to receive bribes, soliciting and receiving bribes, and conflict of interest pertaining to charges in an February 2010 indictment relating to the Colonies Case, along with other charges relating to corruption of the assessor’s office’s function and drug possession. Under the terms of that plea, he agreed to cooperate with authorities and testify against the other five defendants at trial in exchange for reduced charges. His testimony before the grand jury in April 2011 was a key factor in the May 2011 indictment of Burum, Biane, Erwin and Kirk.
On Monday February 6, Upland-based attorney Cory Briggs filed a lawsuit on behalf of two non-profit groups, the Inland Oversight Committee and Citizens for Responsible Equitable Environmental Development seeking reimbursement from the Colonies Partners for the $102 million 2006 settlement of the lawsuit.
The premise of the suit is that Postmus’s admission of bribe taking in his March guilty plea established a violation of California Government Code Section 1090 occurred in the forging of the settlement. Government Code 1090 prohibits public officials from having a financial interest in any decisions they make in their official capacities and provides for all money paid out as the result of such financial conflicts to be reimbursed to the governmental body that made the payment.
Briggs, whose most notable cases have consisted of lawsuits filed against various municipal governments over their ratifications of environmental impact reports for WalMart supercenters, on February 7 called upon the county board of supervisors to “help us get the money back from the developer and give it back to the taxpayers.”
The use of the discovery process in Brigg’s prosecution of the civil suit could conceivably assist prosecutors in the criminal case. But whatever advantage may accrue to prosecutors from Briggs’ suit was counteracted by two separate setbacks on February 7 and February 8.
On Tuesday February 7, DeFazio and his attorney, Victorville-based Rick Ewaniszyk, rejected prosecutors’ offer of a plea deal that would  have reduced the six felony charges against DeFazio to a single misdemeanor that would have resulted in a 90-day county jail sentence. Instead, Ewaniszyk informed Superior Court Judge Michael Dest that DeFazio would go to trial on all six counts and risk a sentence of up to nine years in state prison if convicted.
Ewaniszyk did not respond to questions posed in the wake of the decision to go to trial. It was widely suspected that prosecutors have misgivings about relying upon the testimony of Postmus and are worried that he might not hold up under cross-examination by Ewaniszyk during the DeFazio trial, leading to an erosion of the case against the other four.  The preliminary hearing for the case commenced yesterday, February 9.
The very next day, prosecutors’ misgivings about Postmus were given public demonstration when it was publicly disclosed that in October the FBI  learned that Postmus, while cooperating with the San Bernardino County district attorney’s office and the California state attorney general’s office, was continuing to use illicit drugs.
Selected statements taken from an interview Postmus had with FBI agent Jonathan Zeitlin and assistant U.S. attorney Jerry Behnke and Joseph Widman were posted on the San Bernardino Sun’s website late Wednesday.
According to that report, Postmus told those federal authorities that he had used methamphetamine “a couple dozen times” during 2011.
Postmus’ admission of continuing drug use while cooperating with prosecutors and under their guidance and protection as well as other statements made during that interview were turned over to defense attorneys for Burum, Biane, Erwin and Kirk two months ago because the interview contained what might be construed as exculpatory evidence. The drug use admission will perhaps strengthen the defenses’ contentions that Postmus is an unreliable witness. Other statements made during the interview were less clear cut, with Postmus librating between confirmations that he had an understanding with Burum before the November 2006 vote about receiving future financial support for his political career and indications that he wasn’t explicitly told that the $100,000 in contributions to his PACs were coming until after the settlement was voted on.