By Ruth Musser-Lopez and Mark Gutglueck
This week, outside the presence of both juries hearing the case, one of the two main prosecutors in the Colonies Lawsuit Settlement Pubic Corruption trial provided what resonated around the largely empty courtroom as one of her more energetic and impassioned oratories to date in a trial that has gone on for more than six months.
This and last week, California Supervising Deputy Attorney General Melissa Mandel has been called upon to justify to Superior Court Judge Michael Smith why the matter should continue on to its next stage, in which defense attorneys for Rancho Cucamonga-based developer Jeff Burum, former San Bernardino County Second District Supervisor Paul Biane, one-time sheriff’s deputies union president/former assistant county assessor Jim Erwin, and former San Bernardino County Fourth District Chief of Staff Mark Kirk must seek to convince the jurors of their clients’ innocence.
After Mandel and the other prosecutor assigned to the case, Supervising San Bernardino County Deputy District Attorney Lewis Cope rested the prosecution’s case on June 29, the defense attorneys for Burum, Biane, Erwin and Kirk lodge so-called 1118.1 motions with the court.
Under Penal Code Section 1118.1, “In a case tried before a jury, the court on motion of the defendant or on its own motion, at the close of the evidence on either side and before the case is submitted to the jury for decision, shall order the entry of a judgment of acquittal of one or more of the offenses charged in the accusatory pleading if the evidence then before the court is insufficient to sustain a conviction of such offense or offenses on appeal.”
Beginning on January 4, the prosecution had initiated its case based upon the 29-count indictment handed down in May 2011 against the four defendants. After several rounds of pretrial sparring between prosecutors and defense attorneys in 2011, 2012, 2013, 2014, 2015 and lasting into 2016, 11 of the original 29 counts had been thrown out.
The prosecution’s case consisted of allegations that Burum, who with Dan Richards was a managing principal in the Colonies Partners, first used intimidation, threats, blackmail and extortion followed up with $100,000 kickbacks to persuade Bill Postmus and Paul Biane, who were then the chairman and co-chairman of the San Bernardino County Board of Supervisors, to support paying out $102 million to settle a lawsuit the Colonies Partners had lodged in 2002 against the county and its flood control district over drainage issues at the Colonies at San Antonio residential and Colonies Crossroads commercial subdivisions in northeast Upland. By 2006, with the litigation having dragged on for over four years, the indictment alleges Burum conspired with Jim Erwin to use highly personal derogatory information about Postmus and Biane to create “hit piece” mailers designed to harm their political careers which ultimately were withheld to pressure them to vote in favor of the settlement. Postmus and Biane joined with then-supervisor Gary Ovitt to support and pass by a bare 3-2 majority the $102 million settlement on November 28, 2006. Over the next seven months, Burum and Richards made two $50,000 donations to two political action committees controlled by Postmus and his associates along with separate $100,000 donations to political action committees controlled by Erwin, Mark Kirk, who at that time was Ovitt’s chief of staff, and Biane and his associates. Those donations were, the indictment alleges, thinly veiled bribes to Postmus and Biane for their votes in favor of the settlement and to Kirk for his having influenced Ovitt to support the settlement. Erwin was rewarded for his effort in having carried out the extortion and bribery scheme, prosecutors allege. Though Burum was indicted, Richards was not. Postmus, who had been charged along with Erwin with involvement in an extortion and bribery scheme growing out of the same set of overt acts laid out in the indictment, initially pleaded not guilty to those charges, as had Erwin. But 13 months later in March 2011, Postmus entered guilty pleas to 14 felony counts and agreed to turn state’s evidence. He was then the star witness before the grand jury that indicted the four current defendants. The charges in the indictment supersede the charges earlier brought against Erwin.
Two months ago, while the trial was in full swing in May, two of the counts against Erwin alleging felony filing of a false document were dismissed, based upon the California Supreme Court allowing an appellate court ruling on a similar case to that pertaining to Erwin to stand. That ruling held that a parallel statute in the California Government Code sets such disclosure failures at the level of a misdemeanor.
With the conclusion of testimony of the prosecution’s 39 witnesses on June 29, Burum’s attorney Stephen Larson, Biane’s attorney Mark McDonald, Erwin’s attorney Raj Maline and Kirk’s attorney Peter Scalisi moved to have the entirely of the case against all four of the defendants thrown out.
At that point, Burum faced five charges consisting of count 4, a violation of Penal Code Section 165: aiding and abetting Postmus in receiving and agreeing to receive a bribe to influence a vote; count 5, a violation of Penal Code Section 165: aiding and abetting Biane in receiving and agreeing to receive a bribe to influence a vote; count 7, a violation of Penal Code 86: consisting of aiding and abetting Postmus in receiving and agreeing to receive or asking for a bribe to influence a vote; count 8, violating Penal Code Section 86: aiding and abetting Biane in receiving and agreeing to receive or asking for a bribe to influence a vote; and count 12, aiding and abetting Postmus and Biane in the misappropriation of public funds.
Biane faced four charges, consisting of count 2, a violation of Penal Code 165: receiving and agreeing to receive a bribe to influence a vote; count 6, violating Penal Code Section 86: receiving and agreeing to receive or asking for a bribe to influence a vote; count 10, violating Government Code Section 1090: engaging in a conflict of interest as a government official; and count 11, violating Penal Code Section 424: engaging in a misappropriation of public funds.
Kirk faced four charges, consisting of count 3, violating Penal Code Section 68: receiving and agreeing to receive or asking for a bribe to influence a vote; count 9, a violation of Government Code Section 9054: improperly influencing a public official; count 10, violating Government Code Section 1090: engaging in a conflict of interest; and count 12, violating Penal Code Section 424: aiding and abetting Postmus and Biane in the misappropriation of public funds.
Erwin was looking at ten charges, including Count 4, violating Penal Code Section 165: aiding and abetting Postmus in receiving and agreeing to receive a bribe to influence a vote; Count 5, violating Penal Code Section 165: aiding and abetting Biane, in receiving and agreeing to receive a bribe to influence a vote; Count 7, violating Penal Code Section 86: aiding and abetting Postmus, in receiving, agreeing to receive and asking for a bribe to influence a vote; Count 8, violating Penal Code Section 86: aiding and abetting Biane in receiving, agreeing to receive and asking for a bribe to influence a vote; Count 12, violating Penal Code Section 424: aiding and abetting Postmus & Biane in the misappropriation of public funds; Count 13, a violation of Penal Code Section 470: forgery; Count 14, violating Revenue & Tax Code Section 19706: failure to file a tax return; and counts 15, 16 and 18, three violations of Penal Code Section 118: perjury, pertaining to his filing of his 2007/2008 State Form 700 relating to his economic interests, failure to disclose the true value of gifts on his Form 700, and failure to disclose receiving $7,500.00 in gifts or income on his Form 700.
Last week, with the juries hearing the case on an extended hiatus that will not conclude until July 17, Judge Smith carried out an extended discussion with both prosecutors and defense attorneys with regard to the jury instructions he will provide to the jurors after the defense puts on its case and final arguments have been made. Having gone through several, but not all of those instructions, Smith took up the 1118.1 motions.
In considering Scalisi’s motion on behalf of his client with regard to the Penal Code 68 charge, Judge Smith offered his reasoning that Kirk had not sought a bribe from Burum or the Colonies Partners, as his boss, Gary Ovitt, was predisposed to vote for the settlement. Thus, Judge Smith threw out count 3 relating to Kirk receiving and agreeing to receive or asking for a bribe to influence Ovitt’s vote. Kirk did not fare as well with regard to Scalisi’s motion to dismiss the Government Code Section 9054 charge of improperly influencing a public official and the Government Code Section 1090 charge of engaging in a conflict of interest. Rather, Judge Smith ruled a determination on Kirk’s guilt would be entrusted to the jury hearing the case against him, Biane and Burum.
Judge Smith deferred a decision with regard to the Penal Code Section 424 aiding and abetting in the misappropriation of public funds charge pertaining to Kirk, since the misappropriation of public funds issue was one pertaining to all of the defendants that would be best addressed collectively.
Smith then turned to Maline’s motion with regard to the charges against Erwin. Focusing first on count 13, the charge that Erwin had violated Penal Code Section 470 when he forged the name of his former sheriff’s department colleague Steve Hauer on a memo to Betty Presley, the bookkeeper for the political action committee Erwin had set up, Committee for Effective Government, authorizing a $5,000 payment to Erwin for consulting services in 2008. Erwin had created the committee to be able to receive the $100,000 political donation from the Colonies Partners which prosecutors allege was a bribe, naming himself as treasurer and Hauer as the committee’s executive director, though he had not informed Hauer he was doing so, Hauer testified in January. California Supervising Deputy Attorney General Melissa Mandel maintained that Erwin’s action was an effort by Erwin to hide the pass-through of the $100,000 from the Colonies Partners to himself. While the prosecution maintains, and Erwin has not effectively disputed, that he forged Hauer’s signature on that authorization, Erwin’s attorney Raj Maline maintained the note was of no legal significance, since Erwin submitted an invoice with his own signature and the authorization to Presley, the accountant who oversaw the committee’s accounts and signed the check with the knowledge that Erwin had control of the political action committee. Saying, “I see no evidence that Mr. Erwin could not have gotten the money on his own,” Smith further indicated, “I find there is no evidence to support the intent requirement of the forgery charge.” He dismissed the count of forgery against Erwin.
Judge Smith, however, refused to dismiss two of the three perjury charges against Erwin, counts 15 and 16, which was as far as he had progressed with the 1118.1 motions last week.
On Monday of this week, July 10, the prosecution and defense attorneys were back in Smith’s courtroom, where they went toe-to-toe against each other with regard to their diametrically opposite contentions about whether the charges against the defendants should remain at play or be dismissed. Most of the morning was devoted to the charges against Erwin about which no determination had been made. The discussion then turned to what is the remaining central element of the case – that relating to bribery. Because the district attorney’s office and the California Attorney General’s Office came to the issue of the Colonies Lawsuit Settlement so late, its charging options were limited due to statute of limitations considerations. The settlement occurred in November 2006 and the $100,000 contributions to the political action committees were made during the first six months of 2007. District attorney’s office investigators did not take up the matter in earnest until November 2008, and another 15 months passed before criminal charges were filed in the matter in February 2010, with a criminal complaint against Postmus and Erwin. Another 15 months would elapse until the May 2011 indictment, in which Burum, Biane and Kirk were added to those criminally charged. But the three-year statute on straight-out bribery had elapsed, so prosecutors had engaged in the rather obscure and creative indictment strategy – what Burum’s lawyer Larson would refer to as “an impermissible charging scheme” – of ringing Biane and Kirk up on “seeking to receive a bribe” and charging Burum and Erwin with “aiding and abetting” both Postmus and Biane “in receiving a bribe.” This torturous language remained as the central element of the case after the conspiracy charges were subsequently dismissed. The 1118.1 motions heard this week sought to have those charges against Burum, Biane and Erwin thrown out entirely. Smith’s ruling last week in eliminating the last bribery-related charge from the list of offenses upon which Kirk was charged galvanized Mandel.
Of some moment was that the 1118.1 motion with regard to the charges against Biane had not been brought up at all the previous week and there was widespread speculation around the courthouse that Biane might be dismissed from the case entirely. Indeed, the case against Biane had been severely undercut in March when the primary witness against him, his one-time chief of staff Matt Brown, appeared to go renegade on Mandel as she was questioning him during both direct and redirect examination. Brown had created the political action committee, San Bernardino County Young Republicans, into which the $100,000 which prosecutors allege was bribe money provided to Biane was deposited. And when Brown was approached by district attorney’s office investigators in April 2009 and aggressively interrogated about his role in helping Biane to launder what the investigators characterized as a $100,000 bribe to Biane, Brown panicked and agreed to cooperate with the investigators, including carrying a recording device and surreptitiously recording his conversations with Biane. Brown, however, was unable to capture any utterances from Biane implicating himself in a bribery scheme. On the witness stand under questioning by Mandel, Brown grew rather uncooperative, asserting his inability to recall previous statements to investigators or his testimony before two grand juries during which he had given indication of his suspicions with regard to the rectitude of the lawsuit settlement and the events that preceded it.
On Monday morning July 10, McDonald told Judge Smith that “Paul Biane should be set aside from all of the defendants including Mark Kirk. He should be excised from the entire case.”
McDonald said that as a real estate professional, Biane had independently arrived at the conclusion the lawsuit should be settled. In this respect, McDonald said, Biane was no different than supervisor Gary Ovitt, who consistently supported the settlement of the lawsuit and was not indicted. Biane had held steady to the conclusion that the settlement should be effectuated, with the exception of a lone vote opposing settlement while the county was in the midst of a trial with the Colonies Partners over the title to the property that was at issue in the litigation, McDonald said. The only testimony supporting the allegations against his client lodged by the prosecution, McDonald said, was that provided by Adam Aleman. “You can’t believe a single word that comes out of Aleman,” McDonald asserted. There was no quid pro quo involving Biane, McDonald said and he asserted that prior to the settlement being approved, “There is no evidence that Paul was aware of any contributions” that were to come his way. “Even Postmus maintained that he [Biane] had no prior knowledge [of the donation to the political action committee] before the vote.”
Moreover, McDonald said, “The San Bernardino [County] Young Republicans was formed well before the settlement. It was in existence and was a developed, operating PAC. Paul got no professional gain out of it.”
Burum’s attorney, Stephen Larson, similarly asserted that Biane had been wrongfully inserted into the role of a defendant in the case.
“There is no evidence in this case that Mr. Biane had any knowledge or understanding with Mr. Burum” with regard to the $100,000 donation that went to the San Bernardino County Young Republicans several months after the board voted 3-2 to approve the $102 million settlement with the Colonies Partners, Larson said.
Without pleading, but nevertheless passionately, Mandel forcefully importuned Judge Smith to leave the bribery element of the case yet relating to Burum, Biane and Erwin intact. In so doing, she reiterated the highlights of the case as the prosecution had presented it, and in addition to referencing testimony and evidence presented to the jury in the form of exhibits, brought in other exhibits which had not been previewed for the jury but were rather stipulated to by both the prosecution and defense, and which the juries will have access to when they begin their deliberations. A separate jury for Erwin will rule on whether it considers him guilty or not guilty of the charges lodged against him, while another jury will do the same for Burum, Biane and Kirk.
After listening to Larson, McDonald and Maline expound on why they felt the bribery related charges pertaining to their clients were not justified, Mandel told Judge Smith she had the impression she was in a “parallel universe” to that inhabited by the defense attorneys, who were arguing in essence, she said, to “let Mr. Biane loose because the evidence against him is slimmer [than against the others].” The evidence against Biane is every bit as damning, she said, as that against Postmus, who had admitted guilt to a whole variety of charges, including misappropriation of public funds, soliciting and accepting a bribe, and criminal conflict of interest. She said that she and her prosecutorial colleague, Cope, had possibly made a “tactical mistake” in seeking to shorten the trial by not marching through all of the evidence that was stipulated to. “Maybe we should have brought more [to the direct attention of the jury through testimony],” she said. She then expounded on how the exhibits in the case “show a secret flow of money.” The consideration that Postmus, Erwin and Kirk formed the political action committees into which the $100,000 contributions were deposited after the settlement was made and that the San Bernardino County Young Republicans PAC preexisted the settlement did not exonerate Biane, she said. Rather, she said, the creation of San Bernardino County Young Republicans in October 2004 coincided with Biane’s stepped up effort to push the county toward a settlement of the lawsuit. After Brown had created the PAC, she said, it was the Colonies Partners that initially endowed it with money, which she said was laundered through SEBA, the Safety Employees Benefit Association, the sheriff’s deputies union, of which Erwin had been the president and was later the executive director. The Colonies Partners donated the money to SEBA, she said, and then Erwin diverted the money to the San Bernardino County Young Republicans.
“This was a conspiracy case all along,” Mandel said. “Mr. Postmus never had an innocent intent. They all had a corrupt intent. In 2004 and 2005 all three of the public personalities involved [Postmus, Biane and Kirk] understood that they needed three votes to get it [the settlement] done. There were secret contributions during the beginning in that time frame. The case for bribery against Paul Biane is different but equally strong as the case against Bill Postmus.”
Mandel said that as time progressed and the public became more and more convinced that the demands the Colonies Partners were making were unrealistic, “Mr. Biane got scared” and grew less and less willing to be publicly seen as supporting the settlement. “Things changed,” Mandel said. It was at that point that the extortion element of the case manifested, she said, with Burum seeking the result he wanted – a settlement of the lawsuit – through blackmail as well as bribery.
Proof of the conspiracy exists in that “Mr. Burum was funneling secret payments” to Postmus and Biane through donations he or the Colonies Partners were making to SEBA, which in turn was then making contributions to Postmus and Biane and their various committees, while at the same time Burum was publicly maintaining, Mandel said, “’I am not going to pay you until this [litigation] is over.’ It is here in the document and here in the testimony. That part does not even depend on the compromised testimony [from Adam Aleman].”
Mandel said, “Matt Brown and a number of witnesses talked about that, and how Jeff Burum would make contributions to SEBA so it would look like it was coming from the sheriff’s deputies’ union.”
The evidence presented at trial demands that the questions raised be decided by the juries, Mandel said.
“The question for the jury is whether the reason they did those acts was because of the bribes,” Mandel said, “ and whether the activities of Mr. Postmus and Biane to get this settlement done was done with the understanding that they were going to get that money after.”
She rejected the defense premise that the concepts of extortion and bribery were incompatible. She said the defense attorneys were saying that because “threats were used that means the promise to pay was no longer in effect.” She countered this, insisting, “The promise to pay was always there.” She said both Postmus and Biane were given a choice by Burum and Erwin: vote for the settlement and take the reward they were being offered or have their political careers ruined.
“As to the implication of the inconsistency about the idea that Mr. Postmus could be influenced by threats but have a corrupt intent himself,” Mandel cited the principle employed by South American drug cartels in compromising public officials and law enforcement officers, an offer that cannot be refused: “plata o plomo,” i.e., silver or lead, take your pick, coins in your pocket or lead bullets in the head. Thus, Mandel said, both Postmus and Biane acceded to the extortion and bribery, voting in favor of the settlement and taking the bribes in the form of the political action committee contributions afterward.
Mandel said attempts to assert that Biane truly believed that the $102 million settlement was justified did not hold up. He was well versed in the representations of the county’s attorneys that the county settling with the Colonies Partners on the terms the Colonies Partners were demanding would compromise the county’s position vis-à-vis recovering from the other parties involved – the City of Upland, CalTrans, and the county’s regional transportation agency known as SanBAG – those entities’ share of any conceivable liability they had for the creation of the circumstance that was at issue in the litigation between the county and the Colonies Partners. She said that Biane was well aware of “ironclad” legal arguments the county had to counter the Colonies Partners’ legal assertions that would have vastly limited the county’s liability in any case. Biane was well aware of strong arguments the county could make that the Colonies Partners’ provable damages which would have been a liability for all four entities – the county, Upland, CalTrans and SanBAG – were well below $50 million, she said. And Mandel referenced written communication from just prior to a meeting on March 25, 2005 involving Postmus, Biane, Burum, as well as the other managing principal in the Colonies Partners, Dan Richards, former California State Senator Jim Brulte, who was working as a consultant for the Colonies Partners, along with lawyers for both the county and the Colonies Partners. That communication consisted of an email from deputy county counsel Mitch Norton which demonstrated that Biane was primed with information that the county was in a superior legal and bargaining position as the result of a recent appellate court ruling that validated the existence of county’s flood control easements on the Colonies Partners’ property. Yet at that meeting, Mandel said, Biane had acquiesced in Postmus barring the lawyers from the room and then allowing Brulte to referee a bargaining session between Postmus and Biane on the side of the county and Burum and Richards on the side of the Colonies Partners that derived a proposed $77.5 million settlement. That $77.5 million figure was some $50 million more than had been the county’s highest calculation of the total liability with regard to the issue prior to the appellate court decision that was favorable to the county, Mandel said. Subsequently, Biane, who was committed to not going any higher than the $77.5 million payout arrived at during the tilted March 25, 2005 negotiating session, consented to increasing that by close to another $25 million, Mandel said, all of which demonstrated the degree to which Biane was amenable to the will of Burum.
Mandel offered an illustration of the understanding and expectation that was in place between Burum and Biane with regard to a reward that would come Biane’s way following the settlement. On May 22, 2006, while Postmus was engaged in running for assessor, Biane loaned the Postmus campaign $100,000 from his own supervisorial electioneering fund. At that point, Postmus was in the throes of drug addiction, Mandel pointed out, something that was not unknown to Biane. Still, Biane was willing to vector money to Postmus’ electoral effort. “This was right after Postmus had bailed out of rehab,” Mandel said. “Bill Postmus can’t hold his life together, and Mr. Biane loans him $100,000.”
This reflected, Mandel said, Biane’s confidence that Burum would come through with $100,000 in return for Biane’s vote in favor of the lawsuit settlement, and further illustrated that Postmus and Biane were intertwined in the conspiracy to effectuate that settlement. “I submit that Biane knew that Postmus would be able to pay him back,” Mandel said.
Furthermore, Mandel said, Biane had supported Postmus when he had sought to intimidate then-county counsel Ron Reitz, the county’s highest ranking in-house lawyer, into supporting the settlement on the terms the Colonies Partners were demanding by threatening to shutter the office of county counsel and hire outside attorneys to handle the county’s legal work.
Mandel referenced an invoice Patrick O’Reilly, who was working as the publicist for the Colonies Partners at that time, had submitted for four hours of work he had done on July 31, 2006, the same day that Judge Christopher Warner had entered an intended statement of decision on a bench trial he had conducted between the Colonies Partners between April and June of that year. Warner’s decision was favorable toward the Colonies Partners. On July 31, O’Reilly had spent four hours on the phone talking to Burum, Postmus and Biane. That demonstrated, Mandel said, Biane and Postmus were colluding with Burum in attempting to sell the public on a settlement that was more favorable to the Colonies Partners than it was to the county and its taxpayers.
Mandel referenced testimony by O’Reilly that in October 2006 while at the Double Tree hotel in Ontario where Postmus and Biane were staying the night before a mediation session involving former California Supreme Court Justice Edward Panelli, one of Burum’s employees, Spencer Brown, had delivered to Burum a bag full of “hit pieces,” i.e., mailers attacking Biane.
Mandel said there was solid indication Burum and Erwin were using Postmus’ homosexuality as a leverage point against him.
“In addition, we did hear from Mr. Postmus,” Mandel said. “He reaffirmed Mr. Richards was inquiring about whether he was homosexual.”
Mandel also reminded Judge Smith of the flurry of phone calls that passed between Burum and the others, including Erwin, Postmus, Biane and Kirk, in the days just prior to as well as on the day of the 3-2 settlement ratification vote by board of supervisors, November 28, 2006.
“This is a paper case,” Mandel said. “The paper trail just doesn’t fit the story that the defense has been trying to put out there. A significant part of the case is the documents that the court and the jury have not seen. We never expected the story to get out there until we do our closing arguments. The defense has engaged in a mischaracterization of what this case is about and what it has always been about. There was an understanding between all of these men. They were all on board. Their paths were the same. The significance of the conspiracy can’t be overstated.”
Mandel’s presentation lasted two hours.
Flummoxed, the defense attorneys regrouped during a 15-minute break.
Larson went first once Judge Smith was again on the bench. “This is a classic example of a lack of correlation,” said Larson. “Politicians receive contributions every day. For there to be criminal activity there must be a quid pro quo. Evidence is lacking here.”
Larson then lampooned Mandel’s claim that there were “secret transfers of money,” which he said were all properly and “publicly reported on 460s [i.e., California Form 460s, the documents upon which elected officials show what contributions they have received and which entities or individuals made those contributions].
The legend of guilt that Mandel had weaved was, Larson said, “Kafkaesque, with regard to Paul Biane, especially.”
Larson said that Mandel had provided nothing to support her assertion that Burum had engaged in some form of activity beyond making a political contribution to ensure the receipt of bribes, as is required under the legal description of such an act. A whole host of Supreme Court cases have held that giving political contributions to elected officials is completely legal, he said.
He took issue with Mandel’s “plata o plomo” analogy. “I don’t know about the lead and silver,” he said. “The role of a prosecutor is not to win, but to seek justice. She is changing the story to just win.”
McDonald said he concurred with Larson. He said he had earlier expressed the concern that evidence untested by cross examination “could get before the jury” and that permitting Mandel to proceed with the narrative she had just previewed would “allow speculation” and that it was “based on other evidence’ he was not familiar with. “We never heard of the 2004-2005 bribery and those surreptitious acts [i.e., the money originating with the Colonies Partners that made its way to Biane and/or the San Bernardino County Young Republicans].”
Biane had indeed made the loan to Postmus to advance his effort to become assessor, McDonald said, but no one had come forward to challenge Biane in the 2006 election and Biane had provided the money to Postmus because they were political allies. “Criminal intent is pure speculation,” he said. McDonald said he had just heard in Mandel’s argument against the 1118.1 motions assertions that “never came out in this case. She is about to go to a jury with a case that is made out of whole cloth.”
Maline said, “Ms. Mandel is making arguments at the last minute, changing theories, raising questions. What in the world is she going to say at closing? An uncharged conspiracy is going to come in play. We don’t know what she is going to say. This is irresponsible.”
Maline told Judge Smith that if Mandel is going to make a repeat of those assertions in her closing statements to the jury, “We should get a billing of that so we can argue to the jury.”
By the end of the morning session on Tuesday, Judge Smith completed his rulings with regard to the 1118.1 motions, having first heard arguments with regard to the Penal Code 424 misappropriation of public funds-related charges impacting all four defendants .
Mandel asserted that the vote to confer the $102 million settlement on the Colonies Partners was a misappropriation of public funds by Biane and Postmus because both had an expectation that a portion of that money – the $100,000 each received in the form of contributions to their political action committees – was going to be returned to them.
“There is not a single shred of evidence that any of the supervisors … had any knowledge that when they were appropriating that money, some of it was coming back to them,” Larson maintained.
Apparently already leaning in favor of keeping the bribery-related charges in play against Burum, Biane and Erwin, or perhaps persuaded by Mandel, Judge Smith found that counts 4 and 5, violations of Penal Code Section 165 relating to aiding and abetting Postmus and Biane in receiving and agreeing to receive a bribe to influence a vote; and counts 7 and 8, violations of Penal Code 86 relating to aiding and abetting Postmus and Biane in receiving and agreeing to receive or asking for a bribe to influence a vote would remain against Burum and Erwin, and that count 2, a violation of Penal Code 165 relating to receiving and agreeing to receive a bribe to influence his vote; and count 6, a violation of Penal Code Section 86 relating to receiving and agreeing to receive or asking for a bribe to influence his vote would remain against Biane.
Smith said he believed there had been sufficient evidence presented that would allow the juries to conclude, if they indeed deemed that evidence credible, that Postmus and Biane in accepting the settlement had been “acting more on behalf of Colonies than the county. I think there’s ample evidence to suggest they were really acting more as a proponent for Colonies than they were for the county. That’s a question for the jury to resolve. It was not just, ‘Hey, that’s too much money.’ Some of the reasons had to do with how the settlement would affect the county’s position on the indemnification action against other parties,” Smith said, referencing the cross-complaint the county had against Upland, CalTrans, and SanBAG for their roles in creating the circumstance that led to the Colonies Partners’ lawsuit.
Smith said, Biane will have a “credibility issue” in seeking to convince the jury hearing the case against him that he was acting with the best interest of the county in mind when, in defiance of the warnings of the county’s in-house attorneys and the lawyers with outside firms the county was paying millions of dollars to, he and Postmus insisted on directly dialoguing with Burum, as well as in casting his vote in favor of the settlement on the terms demanded by the Colonies Partners when the board of supervisors were being advised that such a settlement was inadvisable, since it might result in the county not being able to successfully pursue the cross-complaint against Upland, CalTrans and SanBAG.
In addressing the 1118.1 motions with regard to the Penal Code 424 misappropriation of public funds-related charges against all four defendants, Smith said the prosecution had fallen short of showing that a portion of the money that went to the Colonies Partners in the settlement was returned directly to Postmus and Biane.
“I don’t see anything to suggest that anyone had in their minds knowledge that the vote to settle for $102 million means, ‘We’re carving out some amount as future contributions,’” Smith said. “I don’t think the evidence supports that.”
Thus the Penal Code 424-related counts, the only remaining crimes that carried with them mandatory prison terms, have been dismissed.
Smith returned to the one remaining perjury charge relating to what the prosecution had originally maintained was insufficient disclosure on Erwin’s amended statement of economic interest that disclosed his having received a $12,750 Rolex watch from Erwin after he had failed to report that gift on two previous disclosure documents. The amended document did not touch on other gratuities he had received, prosecutors said, and this entailed perjury in addition to previous charges. In defending himself against the charge, Erwin was prepared to call San Bernardino County District Attorney Mike Ramos as a witness. Erwin contends that Ramos, who was once one of Erwin’s political associates, had relayed instructions to him through political consultant Dave Ellis that he should disclose on an amended California Form 700 that he had received the watch from Burum, and that when he did so, the district attorney’s office in conjunction with the California Attorney General’s Office had used that as evidence against him in filing the perjury charges. Anticipating that Maline would subpoena Ramos, Mandel made a motion to dismiss the charge on top of Maline’s previous 1118.1 motion with regard to it. Smith granted that motion.
All told, at this point the prosecution is proceeding with 12 of the original 29 counts intact, such that 17 of the counts, including the conspiracy charge each faced and the extortion elements against Burum and Erwin, have been dismissed. Burum, Biane and Erwin yet face bribery-related charges.
By Ruth Musser-Lopez and Mark Gutglueck