By Mark Gutglueck
The prosecution in the Colonies Lawsuit Settlement Public Corruption Case walked into a buzz saw this week when San Bernardino County Supervisor Josie Gonzales, whose oftentimes dramatic testimony had painted defendant Jeff Burum in a very poor light, was demonstrated through incontrovertible documentation to have inaccurately placed herself in China during a trade mission excursion there in 2005, during which she said she had an unsettling near encounter with him.
Last week and through two-thirds of her testimony on Tuesday, Gonzales came across as the strongest prosecution witness thus far in the more than two-month-and-counting trial. While not crucial to the prosecution in the sense that her testimony has bearing on the bribery element which remains at the heart of the case, Gonzales, as one of the two members of the board of supervisors who opposed the narrowly approved $102 million settlement that was conferred upon the Colonies Partners to end litigation that company had brought against the county, was instrumental in shedding light on the atmospherics in the time that led up to that settlement. In particular, she had testified to the pressure placed upon her to arrive at a settlement of the matter, not unlike but somewhat less intense than that which prosecutors alleged was aimed at Bill Postmus and Paul Biane, two of the supervisors who did support the settlement. That pressure was characterized by the prosecution as extortion. Though the charges of extortion in the case have been thrown out, the theory of guilt propounded by the prosecution yet relies on the narrative contained in the indictment which represents that Burum, with the assistance of former sheriff’s deputies union president Jim Erwin, blackmailed Postmus and Biane in the months before the settlement vote by threatening to send out to voters mailers exposing Postumus’ homosexuality and drug use and Biane’s mounting financial difficulties.
According to prosecutors, while the lawsuit over flood control issues at the Colonies at San Antonio residential and Colonies Crossroads commercial subdivisions in northeast Upland filed by the Colonies Partners in 2002 was dragging on, Burum, one of two co-managing principals with the Colonies Partners, worked in tandem with Erwin to make the aforementioned threats. After Postmus and Biane voted in November 2006 along with then-supervisor Gary Ovitt to approve the $102 million payout, prosecutors allege Burum provided $100,000 kickbacks to Postmus, Biane and Mark Kirk, Ovitt’s chief of staff, in the form of donations to political action committees they controlled. Postmus was previously charged in the matter and pleaded guilty to all of the counts lodged against him. He has turned state’s evidence and his testimony against Burum, Biane, Erwin and Kirk is anticipated in the months ahead. Prosecutors were attempting to use Gonzales to set the table for Postumus’ upcoming appearance before the two juries hearing the matter, one of which will decide the fate of Erwin, the other hearing the case against the other three defendants.
On Thursday of last week and again on Tuesday, Gonzales recounted her belief that the board of supervisors was being stampeded toward settling the lawsuit for increasingly higher dollar amounts as time progressed and that she could not in good conscience support those settlement proposals in large measure because the Colonies Partners and their legal representatives had not provided the documentation she had requested relating to the monetary damages and costs the Colonies Partners claimed to have sustained as a consequence of the county’s actions as alleged in the lawsuit. She also related her belief that the Colonies Partners or its representatives, Burum in particular, had acted inappropriately by seeking to lobby, influence or compromise her into supporting the settlement. She recounted two such encounters, or as it were in one of the cases, an alleged near encounter, with Burum.
One of these, she said, took place in 2005 in Los Angeles at what she said she thought was the Century Plaza during a settlement mediation involving on one side, county supervisors and other officials, and on the other, the Colonies Partners principals and its representatives. That mediation entailed the differing parties being confined to separate rooms while a mediator transited between each in an effort at give-and-take that might ultimately lead to a resolution. Gonzales said that when she left the conference room in which the county contingent was engaged in an intense dialogue to use the facilities, she was met by Burum, who had been ensconced in a kitchenette off the hallway near the ladies room. He pleaded with her, she said, to support the settlement. In her testimony she indicated her belief that Burum had been alerted to her exit from the conference room so he could confront her. She said she believed Burum had been alerted to her whereabouts by another party in the conference room, most likely Postmus, who was using his Blackberry communication device.
The second incident with Burum, which was actually a near encounter, took place, she said, in China, she testified this week, in the lobby of the White Swan Hotel in Zhengzhou in September 2005. In previous testimony before two separate grand juries in 2009 and 2011, she had said the incident took place in November 2006. This week, Gonzales said that she had arrived at the airport after the transpacific flight amongst many others in the trade mission party, including many business leaders and community members from San Bernardino County she had only just met. In an effort to expand her fledgling relationship with her just-made acquaintances, she invited all of those who were not too tired from the flight to meet her at the hotel bar for a drink. She said she was among those who caught the first shuttle to the White Swan and after checking into the hotel and depositing her luggage in her room, went down to the hotel bar, at the front of which she positioned herself in an armchair that gave her a view of the hotel lobby so she could greet any members of her party who chose to take her up on the offer of a libation.
Having left her credit card with the bartender to cover the tab for the round she would be buying, she was in the armchair when she spotted former California State Senator Jim Brulte in the lobby. The six foot-four inch tall Brulte spotted her and approached her, she said. Brulte invited her to go out to dinner with him and Burum, saying there was a limousine waiting to whisk them away for a night on the town. Gonzales testified that Brulte, who towered over her as she sat in the chair, at one point bent down and had placed his hands onto the armrests on either side of her, gazing down at her. When she peered around Brulte, she said, she could see Burum some distance away in the hotel lobby. She said he was shuffling about and she recognized him, as she could see him both directly and in profile as he changed positions.
Gonzales said she gave Brulte indication she would go with them, but used the circumstance involving the bartender’s possession of her credit card and the need to make good on her promise to treat the other members in her party to drinks to temporarily put him off. She told supervising deputy district attorney Louis Cope, who handled her direct examination while she was on the witness stand this and last week, she felt it would be improper for her to dine and go out with Brulte, who was working as a consultant for the Colonies Partners, and Burum while the litigation with the Colonies Partners was still pending. She went up to her hotel room, she said, where she remained for the most of the next two days, ducking both Brulte and Burum, relying on room service, until the San Bernardino County delegation departed Zhengzhou.
“I felt as if I had been skewered,” Gonzales said. “I just stayed in my room.”
Cope’s direct examination of Gonzales lasted into the afternoon on Tuesday. At 2:31 p.m. Jennifer Keller, one of Burum’s attorneys, began the cross examination of Gonzales, limited to an hour on that day because the court is accommodating one of the jurors, who has a commitment to a late afternoon class on Tuesdays and Thursdays. Within that hour, Keller made considerable progress in dismantling all, or at least much, of what the prosecution had established with Gonzales.
Keller started out in what were even and almost friendly tones, going straightaway to the Zhengzhou event, as if carrying out a routine overview of the key elements of Gonzales’ testimony on direct examination, proceeding with the unspoken presumption in her questions that the Zhengzhou event took place in 2005, locking the supervisor into the version of events she had provided to Cope, intensifying the skeptical tone of both her voice and nature of the questions.
Relatively early on, Keller nailed down that there could be no confusion as to whether Burum was in the lobby of the White Swan Hotel when she had her encounter with Brulte.
“You could clearly see Mr. Burum and you were absolutely sure it was him?” Keller asked. “There was no mistaking who it was from your position?”
“Yes,” said Gonzales.
Keller used references to Gonzales’ previous testimony about the incident before separate grand juries on September 10, 2009 and April 12, 2011, as well as an audio-recorded statement she made about to district attorney’s office investigator Hollis Randles on March 10, 2009, and characterized the previous testimony as being more dramatic than what Gonzales had offered during the ongoing trial. Summoning up Gonzales’ words that she had “felt an instinctive fear of being a victim of some very good planning” and that “I knew that it would be terribly dangerous to go anywhere with him or anyone else,” Keller reminded Gonzales that upon spotting Brulte in the lobby she thought that “he had tracked you down half way around the world to talk to you about the Colonies” lawsuit settlement.
“You were terrified,” Keller said.
“Not terrified,” Gonzales said. “Apprehensive.”
“At this point alarm bells went off in your head, right?” Keller asked.
“Yes,” responded Gonzales.
“You really thought that what they were going to do is try to take you out and possibly get you drunk and drug you and pose you in sexually compromising photos and blackmail you?” Keller said, referencing Gonzales’ previous grand jury testimony to that effect.
“Yes,” said Gonzales.
“You just made that up out of whole cloth,” Keller said straight out as an assertion, rather than in the form of a question.
“Absolutely not,” Gonzales replied.
Keller then turned to the timing of the Zhengzhou incident, once again starting at the outer perimeter and moving inward, but wasting no time in getting to her intended destination.
She asked about Bill Postmus’ whereabouts at that time. Gonzales said he was on the trip but when she was at the White Swan Hotel she had not yet seen him.
Through documentation, Keller established that the 2005 China trade trip had taken place between September 8 and September 20 of that year.
She asked Gonzales about the airline flight to China, and when it had departed. There was no clear response to the question.
Point blank, Keller said to Gonzales, “You were never there.”
“Excuse me,” responded Gonzales, taken aback. “I was there.”
Keller than used the courtroom’s overhead display screens to show the minutes from the board of supervisors meetings on September 8 and September 20, 2005, certified by current clerk of the board Laura Welch, which showed Gonzales was present at both of the meetings.
She then displayed a printout of a San Bernardino Sun newspaper article pertaining to the kickoff of the 2005 Route 66 Rendezvous Car Show Event held in San Bernardino datelined September 15, 2005 in which Gonzales is referenced as being present. Keller then delivered the coup-de-grace, an article that ran in the Riverside Press Enterprise on September 20, 2005 pertaining to a group of San Bernardino County officials touring the Mississippi Delta to examine the devastation there in the wake of Hurricane Katrina. Accompanying the article was a photo of Gonzales in a vehicle in the company of Gulfport’s comptroller Mike Necaise as they are looking over what appeared to be a row of collapsed houses. Keller augmented that with a San Bernardino County press release dated September 20 about the relief trip to Mississippi which contained a quote from Gonzales.
Gonzales had previously testified that she had participated as a county representative on two trade mission junkets to China. Keller produced county records showing the county had indeed paid for her travelling expenses on two trade excursions to China, which took place in 2006 and 2007. Keller then referenced the record of the board’s August 2005 pre-approval for county officials’ travel and accommodations to the September 2005 China trade mission, which made no mention of Gonzales’ planned attendance.
In the face of Keller’s presentation, Gonzales remained adherent to her earlier testimony that she was in China in 2005 and had the encounter with Brulte with Burum nearby, suggesting she could easily clear up any confusion by producing her passport. When the jury had left for the day, Judge Michael Smith commended her to do just that.
On Wednesday morning, before the jury was brought into the courtroom, Keller and Burum’s lead attorney, Stephen Larson, testily asserted that the prosecution had acted improperly by eliciting from Gonzales testimony they knew to be false, thus approaching or crossing the line into subornation of perjury.
“Mrs. Gonzales’ testimony is completely made up,” Keller told Judge Michael Smith.
Gonzales’ account is problematic from three standpoints. First, she previously testified the encounter with Brulte at the White Swan took place in 2006. Second, Burum was in China at the time of the 2005 San Bernardino County trade mission, but was not in China the following year, according to the stamps within his passport. That information was entered into the court record five years ago by Larson on Burum’s behalf, after the May 2011 indictments of Burum, Biane, Erwin and Kirk. Thus, based on information available in the record, unless Gonzales can establish that she was indeed in China in 2005 despite the county records to the contrary and the contemporaneous news reports that put her stateside in that timeframe, it does not appear that Gonzales and Burum were ever in China together, at least prior to the settlement.
Keller told Judge Smith that Gonzales’ account of what took place in China, either in 2005 or 2006, “cannot be true under any interpretation.”
To the charge that the prosecution in the case had knowingly exposed the jury to false statements and evidence, Supervising Deputy California Attorney General Melissa Mandel, who is prosecuting the case in conjunction with Cope, denied that the prosecution had put on falsified evidence, conceding only that Gonzales’ account presented “an area of conflict in the evidence,” and that there were numerous such conflicts in the testimony, the case overall and that more information with regard to the China trade mission trip is yet to be submitted to the jury. She said the truth behind those conflicts is to be hashed out in the course of the trial and the jury’s deliberations.
Smith essentially concurred, saying that assimilating Gonzales’ statements and putting the various conflicts into perspective was an “intellectual exercise” for the court and the jury, but that he would make no rulings on the defense’s motions. Burum, in an effort to contain his anger, temporarily exited the courtroom.
Gonzales was unable to produce her passport. After the jury was in place, however, she conceded that the incident she had described took place in 2006, rather than 2005. When Keller confronted her with the consideration that the available evidence – Burum’s passport – demonstrated he was not in China in November 2006, she speculated that Burum might have eluded customs by coming into China on a non-commercial private plane.
The anger of Burum’s defense team with the witness was palpable, and as Keller moved on with her cross examination of the supervisor, the distaste Gonzales and the defense attorney had for one another was manifest.
At times, the standard format of question and answer broke down, with both women hurling verbal bricks at one another. In one exchange, Gonzales said, “You’re not making sense to me.”
“Well, that’s a two-way street,” Keller shot back.
As the mutual hostility increased, Judge Smith said, “Ms. Keller and Ms. Gonzales, the purpose of this is not to argue with each other.”
Keller turned to the mediation session which Gonzales had remembered as having taken place within the Century City Plaza during which Burum had spoken with her on her way out of the ladies room, importuning her to vote in favor of the settlement. Keller insinuated to the jury that Gonzales’s memory and characterization of that encounter was unreliable, asserting that the mediation was not held at the Century City Plaza but at the Judicial Arbitration & Mediation Service office in Los Angeles. Keller contrasted the account Gonzales had recently given of what had occurred that day to Gonzales’ previous testimony that she had hidden in the ladies room after her exchange with Burum, fearful of returning to the conference room in which the rest of the county’s negotiating delegation was gathered. Keller attempted to wring from Gonzales an acknowledgement that the kitchenette in which Keller said that Gonzales said Burum was “lurking” was a pantry stocked with refreshments that those participating in mediations were free to access.
Gonzales quibbled with Keller’s use of the term “lurking.”
By her questions, Keller suggested that Gonzales, in this instance and as she had done based upon her chance encounter with Brulte in China, had interpreted a chance meeting in the most “sinister” of light, and had developed what bordered on a pathologic and unjustifiable fear of the Colonies Partners that went beyond providing testimony that was colored against Burum and his business associates into statements that are outright false.
Gonzales said that by retreating into the restroom, “I wanted to avoid a problem.”
“But you didn’t have a problem,” said Keller. “Isn’t this just another example where when you run into someone by chance you are trying to turn it into something scary?”
“Absolutely not,” said Gonzales.
When Keller asked Gonzales why she didn’t just tell Burum that she considered his approaches to her to be improper, Gonzales said, “You want me to presume he did not already know that he was transgressing?”
Keller said, “That sounds very unlikely to me. It just doesn’t sound believable, Mrs. Gonzales.”
Also in her questioning, Keller took issue with statements made by Gonzales on her first day of testimony last week in which she said she had essentially self-funded her campaigns for Fontana City Council and her current position as Fifth District county supervisor.
Keller used campaign finance reporting documents to show that much of the $7,000 she had loaned to her campaign during her maiden run for Fontana City Council had been paid back to her after her election when donations came into her political war chest.
Gonzales pointed out that the documents indeed showed that “I put the money in up front” when she was running as an outsider and not as an incumbent in that race.
Keller took aim at Gonzales’ claim that she had utilized $365,000 of money she inherited from her parents to run for supervisor for the first time in 2004. Keller, using the campaign reporting documents, was able to chart just $205,000 that Gonzales had in one fashion or another put up to fund that election. Of that $5,000 came from Gonzales, but the other $200,000 was in the form of loans from Citizens Business Bank in Fontana in installments of $150,000 and $50,000 that Gonzales had taken out. Keller wanted to know why the money came from a bank, rather than from Gonzales, since she claimed to be the source of that money. Gonzales explained that banking institutions will not make loans to political campaigns so she had taken out a loan against her house, which she had just obtained title to free and clear by using her inheritance from her parents to pay off a previous loan.
Keller questioned Gonzales’ representation of herself as a David vs. Goliath political figure in that 2004 election in which she overcame a bevy of other candidates, including John Longville, who was a former mayor of Rialto and a sitting assemblyman who had been heavily backed by the Colonies Partners. Keller got Gonzales to acknowledge that she had raised $544,000 in the 2004 campaign, including substantial donations from other developers, including David Weiner and Young Homes. Keller’s point was that Gonzales was as accomplished of a politician working the pay-to-play ethos of San Bernardino County politics as the Colonies Partners were accomplished participants in that same ethos as donors.
“There’s nothing wrong with that [receiving massive political donations from interests whose projects are impacted by those giving the donations]?” Keller asked Gonzales.
“There’s nothing wrong with that,” Gonzales responded.
Keller further sought to get Gonzales to acknowledge that she had not voted for a measure to limit the amount of money that individual donors can contribute to members of the board of supervisors until Gonzales had herself accumulated a political war chest exceeding $800,000.
Keller asked Gonzales about Postmus, getting her to say that “I cared for him” and that her concern for him had evolved into something of a “mother-son” relationship. Keller delved into Gonzales’ previous statement that she viewed Bill Postmus as being “under great pressure” at that time, in reference to the efforts to settle the Colonies Partners litigation. When Keller began questioning Gonzales about the indications of possible drug use she witnessed in Postmus at the time, a rare consonance developed in their exchange as Keller began asking about those signs and Gonzales and Keller provided what almost seemed to be a choreographed litany of descriptions of those symptoms in response to one another so that keeping track of which woman was enunciating which symptom was difficult if not impossible: “Emotional problems; agitated; twitching; itching; disheveled; always moving around; peeled nose; losing weight; nervous; erratic; mood swings; uneven temper; losing his temper; disappearing for days at a time,” they said.
“You knew there were rumors all over the fifth floor [of the county administration building, where the supervisors have their offices] Mr. Postmus was addicted to methamphetamine?” Keller asked.
“Yes,” said Gonzales.
Keller wanted to know why Gonzales had not done anything about it, asserting Gonzales “never tried to get him into rehab.”
Gonzales said she indeed had sought to get Postmus assistance.
“I suspected,” said Gonzales. “I did ask and I was concerned. I didn’t know it was methamphetamine abuse. I asked him point blank. He said his back was hurting. He said he had a bad cold. In the end he told me he had shingles.”
In the face of all of this, Keller said, Gonzales said she interpreted that Postmus’ behavior was a consequence of the pressure that was being placed on him by the Colonies Partners.
Gonzales said that Postmus himself had indicated to her he was under pressure.
“Did he ever say who was putting pressure on him?” Keller asked.
“He never said anyone in particular was putting pressure on him,” said Gonzales.
“So, losing weight, his nose peeling, losing his temper, erratic moods, being irritable was all because of the Colonies?” Keller said.
“I believe it had a great deal to do with it,” Gonzales said.
After Keller ended her cross examination, Erwin’s attorney, Raj Maline initiated his questioning of Gonzales, coming across as far less hostile to the witness than Keller.
Maline obtained from Gonzales an acknowledgement that she had a political relationship with District Attorney Mike Ramos. When Maline asked Gonzales about whether it was the district attorney’s office that first approached her with regard to issues that have grown into the prosecution of the defendants, there was some degree of confusion. She initially said she had made the approach. After Maline prompted her with the transcript of an interview district attorney’s investigator Hollis Randles had conducted with her in 2009, she said it was the other way around in that particular instance. But, it was shortly thereafter clarified that in the 2005 to 2006 timeframe, she had instigated contact with the district attorney’s office.
When Maline asked Gonzales what had prompted her to make the contact, she said that “I know I told the public integrity unit [within the district attorney’s office] about the China trip,” but she said he was unsure as to what had been the issue that prompted her to contact the district attorney’s office. While that issue was being discussed, Judge Smith, noting the lateness of the hour, closed down the testimony for the day and the week, scheduling everyone, including Gonzales to return on Monday.
After Gonzales had exited the courtroom, a short discussion ensued as to the admissibility of the subject that it appeared Gonzales was about to broach. Years ago, Gonzales claimed to have seen the mediator on the Colonies case, former California Supreme Court Justice Edward Panelli, in a vehicle with Burum following one of the mediation sessions. There is a dispute over the accuracy of what Gonzales claimed to have seen, with Burum and Panelli denying her account. Smith has ruled the incident as described by Gonzales to be inadmissible. As a strategy for determining how what Gonzales was alluding to can be determined before the jury is exposed to it was evolving, Mandel said she was wary of having a district attorney’s office investigator speak with Gonzales out of concern that the defense will question Gonzales about it on Monday and thereby suggest to the jury that the prosecution is coaching the witness. When Larson, who last week objected to Smith’s efforts to ask clarifying questions of an earlier witness, former supervisor Gary Ovitt, suggested that Smith question Gonzales, Smith, still sensitive to Larson’s criticism, somewhat sarcastically said, “So it’s okay for me to question witnesses, now?”
Larson outright stated that Gonzales had engaged in “fabrication. We unfortunately have a witness who makes things up.” As such, Larson said, “I don’t want to get anywhere near Josie Gonzales.”
Smith told the lawyers he will question Gonzales before the jury is present on Monday to determine what she was referring to before further questions on the subject proceed.
By Mark Gutglueck