By Ruth Musser-Lopez and Mark Gutglueck
More than eight-and-a-half months after the Colonies Lawsuit Settlement Public Corruption Trial began, the two juries hearing the matter began deliberations this week.
On Monday, Tuesday and Wednesday the final arguments by both defense attorneys and one of the prosecutors reached a fever pitch crescendo, buffeting jurors with diametrically polar assertions with regard to the largely circumstantial case put on by the prosecution involving 39 witnesses and 1,494 prosecution exhibits. It is now up to each juror to decide if there is an abiding moral certainty that Rancho Cucamonga-based developer Jeff Burum, former board of supervisors member and chairman Paul Biane, one-time sheriff’s union president Jim Erwin and Mark Kirk, who was once the chief of staff in the county’s Fourth Supervisorial District, were involved in an elaborate political graft and bribery scheme or variously, that the prosecution failed to convincingly establish any wrongdoing on the part of the four defendants.
The case involves charges that Burum had conspired with Erwin to threaten and blackmail Postmus and Biane into settling in 2006 a lawsuit his company, the Colonies Partners, had brought in 2002 against the County of San Bernardino and its flood control district over drainage issues at the Colonies at San Antonio residential and Colonies Crossroads commercial subdivisions in northeast Upland. Prosecutors allege that Erwin prepared but ultimately withheld “hit piece” mailers that targeted Postmus, who was then the board of supervisors chairman as well as the chairman of the Republican Central Committee, and Biane, then the vice chairman of the board of supervisors as well as the vice chairman of the Republican Central Committee. Those mailers, according to prosecutors, took as their subject matter Postmus’ homosexuality and methamphetamine addiction and Biane’s financial travails which had him on the brink of bankruptcy. On November 7, 2006, the 2006 general election was held, in which Measure P, an initiative sponsored by Biane which raised each supervisor’s annual salary from $99,000 to $151,000, passed and Postmus was elected county assessor. Three weeks following the election but prior to Postmus transferring to the assessor’s office, the board of supervisors voted to confer a $102 million settlement on the Colonies Partners, bringing the four year-long lawsuit to a close. Postmus and Biane supported the settlement along with Fourth District supervisor Gary Ovitt. Between March 2007 and the end of June 2007, the Colonies Partners endowed political action committees controlled by Postmus, Biane, Erwin and Kirk with $100,000 each. In a 29-count indictment handed down in May 2011, in which Burum, Biane, Erwin and Kirk were named, it is alleged those $100,000 donations to Postmus and Biane were bribes provided in return for their votes in support of the settlement and that the $100,000 donation to Kirk’s political action committee was likewise a bribe made in exchange for his having delivered Ovitt’s vote in favor of the settlement. Kirk was Ovitt’s chief of staff and primary political advisor.
The indictment followed by less than three months Postmus pleading guilty to criminal charges lodged against him in 2010 relating to his settlement vote and his acceptance of the $100,000 provided by the Colonies Partners to two of his political action committees, which he acknowledged in his plea as a bribe.
The final arguments this and last week, which were punctuated by the prosecution’s rebuttal before the two juries hearing the case were given their final instructions, served as a densely-packed, richly-detailed highly-nuanced and intensively passionate and occasionally entertaining encapsulation of the testimony and evidence which flew by at light speed in comparison to the often plodding proceedings in the six-month long trial preceding it, among the longest in San Bernardino County history.
Last week, California Supervising Deputy Attorney General Melissa Mandel, who had prosecuted the case in tandem with San Bernardino County Supervising Deputy District Attorney R. Lewis Cope, moved through her closing arguments relating to all four defendants. She was followed by attorney Peter Scalisi, representing Kirk, who was followed by Mark McDonald, the attorney for Biane. Raj Maline, Erwin’s attorney, then began, but did not complete his closing arguments.
On Monday, Maline concluded his argument, insisting “the government got it wrong.” Maline adopted the ploy of using a prop to enhance his closing argument, displaying a stack of 1,000 one dollar bills some five inches high stashed inside a brown paper bag, which he said represented $100,000 if the greenbacks had been $100 bills instead, the amount of money the prosecution contends was provided to three of the current defendants – Biane, Kirk and Erwin – as well as Postmus, who in 2011 pleaded guilty to a raft of charges stemming from the circumstances pertaining to the Colonies lawsuit settlement, including bribery, misappropriation of public funds, criminal conflict of interest and conspiracy. He placed the $1,000 in a bag and handed it to a juror. “Want to go to Wells Fargo?” he asked. Maline’s point was that if Burum had been intent on bribing anyone he could have very easily obtained $400,000 in cash to distribute without creating the record of the donations to the political action committees Postmus, Biane, Erwin and Kirk controlled.
“Would Mr. Burum have a tough time with that?” Maline asked, referring to obtaining cash from a bank. “Why go through all that rigmarole for years when all you have to do is go to Wells Fargo?”
Maline lambasted the prosecution’s contention that Erwin threatened Biane in an effort to obtain his vote in favor of the Colonies settlement. “He didn’t do that to Paul Biane,” Maline said. “He didn’t do that to anyone.”
The prosecution, Maline said, had staked the integrity of its case on the testimony of Adam Aleman, Postmus’ one-time protégé whom Postmus had elevated at the age of 23 to the position of assistant assessor after Postmus had been elected to that post in 2006 and assumed that office in January 2007. By 2008, revelations that Postmus had staffed the assessor’s office with his political cronies, including Aleman, overtook them, and both ended up being prosecuted for a number of offenses that grew out of their allowing the assessor’s office to be utilized for partisan political purposes. In the midst of that, Aleman, unbeknownst to his mentor and patron, began cooperating with the district attorney’s office, recording or otherwise electronically preserving hundreds of conversations, phone calls, text messages and email contacts he had with Postmus. Indeed, it was Aleman who provided investigators in the district attorney’s office with the basic information relating to the Colonies lawsuit settlement that led to Postmus’ conviction and the prosecution of Burum, Biane, Erwin and Kirk.
Nevertheless, Aleman’s testimony had been provided under a plea deal worked out with prosecutors, and defense attorneys have consistently suggested that Aleman was fabricating much of his testimony against the others caught up in the case as part of an effort to achieve leniency. Aleman offered testimony that was crucial to the prosecution relating to both the blackmail and bribery elements of the case. According to Aleman, while at the sheriff’s deputies union office, Erwin had displayed for him on his computer there mockups of “hit pieces,” i.e., political mailers attacking both Bill Postmus and Paul Biane, the dwelling on the former target’s homosexuality and drug use and on the latter’s dire financial circumstance which had him in arrears on his mortgage, utility, vehicle and other loan payments to the point that he was on the brink of bankruptcy.
Maline suggested those mailers never existed and were a figment of Aleman’s imagination.
“There was never any flyer introduced at this trial that would match the ones described by Mr. Aleman,” Maline said.
And the prosecution and its investigators never followed up to confirm through other available sources whether Aleman was telling the truth, Maline said. “They could have easily gone to the mail house, or to the computers to corroborate his story,” Maline said. “They had recording apparatus,” Maline said, referring to the audio recording devices district attorney’s office investigators had provided to Aleman, with which he captured statements from Postmus on a regular basis for well over a year. “He could have easily talked about it on the phone. He could have said, ‘Bill, remember the flyers that they made, these horrible flyers that were going to expose you?’ He [Postmus] would have said, ‘Yes, that was horrible’ or he would have said, ‘What are you talking about, Adam?’ There is no corroboration.”
Maline said that the prosecution did not live up to what it had promised during the opening statement made by Cope in January. “Their own theory argued to you in closing is not what they said in opening,” he said, intimating that was because both the witnesses and evidence did not live up to their advance billing. At this point, Maline said, after the prosecution had presented a hodgepodge of contradictory evidence and exhibits together with a mélange of testimony that cut both ways, the prosecution is prevailing upon the jurors to assemble the case it failed to assemble for them.
“They are telling you to go figure it out, draw the same nonsensical interpretation that they did,” said Maline. “No one testified there were any threats by anyone. Mr. Erwin did not go out and threaten ‘Look what I got, look what I got.’ There were never any threats, ever – ever!”
Taking stock of the consideration that the case against his client and the other defendants is largely a circumstantial one which requires that the jurors see that all elements of the case are corroborated, Maline said Aleman’s reputation for misleading statements prevents him from confirming anything.
“I can’t emphasize this enough,” Maline said. “You have Mr. Aleman… Don’t trust him. Whether or not corroboration is needed under the law, you should not believe him.”
The prosecution asserted, Maline said, “that you could convict based solely on his testimony. Don’t do that. No one here has suggested that you should rely on Mr. Postmus or Mr. Aleman. Adam Aleman was convicted of crimes, of lying to a grand jury. ‘Whether or not Adam Aleman was an accomplice under the law, believe what is believable to you and disregard the rest’ is what Ms Mandel told you. Consider he is the best of the best liars. Look at his training. As soon as he stepped into the political arena, his job was to lie and cover up.”
Maline suggested that the prosecution’s assertions that Erwin threatened and blackmailed Postmus was a consequence of the “tough love” Erwin showed toward Postmus.
Erwin was, Maline said, “the one person in the handling of Mr. Postmus, who actually cared about Mr. Postmus, who actually did something. Everyone saw him sliding downhill, kept noticing him farther and farther down hill. He was talking gibberish sometimes, thrashing around, people noticing. What did people do? Nothing. They commented on it, and talked about it behind his back. Mr. Bob Smith [one of Postmus’ staff members and political associates] and Mr. Erwin helped him get into rehab. Bill promised Mr. Erwin he was going to finish his rehab. That was in 2006. SEBA [the sheriff’s deputies union of which Erwin was once president and of which in 2006 he was executive director] backed him in running for the assessor’s office. They gave him $40,000 in 2006. Bill Postmus spent $4.2 million for that race. That’s a lot of money. During that time frame, Jim took him to James Ramos [then the San Manuel Indian Tribe chairman and today the county’s Third District supervisor] for the purpose of raising additional money. Mr. Erwin introduced him to James Ramos. That is what he did. When he [Postmus] won the election, he appointed Jim Erwin as assistant assessor. There were no threats. If he had been threatening Mr. Postmus, he would not have appointed Mr. Erwin as the assistant assessor. Mr. Erwin did threaten him, but it was tough love. Mr. Erwin left SEBA as the administrator there to join Mr. Postmus in the assessor’s office. But by May of 2007, Mr. Erwin saw things sliding downhill even farther. At that point he wrote Bill a memo.”
Maline displayed that memo, dated May 23, 2007,which read, in part, “I am sure that after much reflection you are aware that your conduct has placed into jeopardy your personal and political reputation. [Your] erratic behavior [is risking the livelihoods] of approximately 230 employees of the assessor’s office.” In the memo Erwin noted that he had personally contacted Chuck Reed, a principal in the Pine Ridge drug recovery operation, which had a satellite clinic in San Bernardino offering outpatient services, to arrange for Postmus to undergo treatment while continuing to function as assessor. Postmus was to take part in a regimen that included weekday group counseling sessions and mandatory random drug screening that would trigger automatic notification of Aleman and Erwin if Postmus were to test positive. “After much deliberation and soul-searching, I have decided in the event that you fail to complete the aforementioned rehabilitation program, formal disclosure to the county of your condition will be required,” the memo states. “Tomorrow I will contact Pine Ridge to confirm that you have authorized mandatory disclosure.”
Maline said Erwin coordinated Reed and his colleague, Jim East, at Pine Ridge to check Postmus into that clinic and then ensured that Postmus participated in an outpatient program after the initial round of treatment at Pine Ridge. In that memo, Erwin said that he and others, Aleman included, “will do everything in our power to support you” and expressed confidence in the outcome, saying “I know you will conquer” this addiction.
“He (Erwin) did threaten to expose him,” Maline said. “Not in the context the prosecution said. It was in the context of a friend. In the end, according to Maline, “Bill Postmus continued on a path of recklessness, using drugs, not showing up, endangering the assessor’s office employees,” under which conditions, “Mr. Erwin,” Maline said, “did go to the [DA’s] office and told them of the shenanigans and the drug use.”
It was Erwin’s action in blowing the whistle, Maline said, that led to the investigation of the assessor’s office and the undoing of Postmus and Aleman. That Erwin had betrayed Postmus and Aleman was “the first thing that came to their [Aleman’s and Postmus’] mind. Adam Aleman then goes to the authorities and blames Jim Erwin. They don’t blame themselves. They blame Mr. Erwin for taking down their administration. Bill Postmus has a different view now, but at the time Aleman and Postmus had a mindset that they would get back at Jim Erwin,”Maline said.
In this way, Maline suggested, the district attorney’s office and the state attorney general’s office were carrying out and executing on Aleman’s vendetta against Erwin for having exposed the way in which Bill Postmus and Adam Aleman corrupted the assessor’s office.
Maline told the juries that in constructing the hit piece mailers targeting Postmus and Biane, both Burum and Erwin were entirely within their rights.
“There were hit pieces,” said Maline. “So, what? You can send out negative campaign messages. There were horrible things said in the last [presidential] campaign. That’s the way politicians talk about each other. That is okay. It happens all the time with politicians. You can say what you want in politics. You can do what you want.”
And, Maline said, in a political context “money [i.e., donating money to politicians and office holders] is considered speech. Donating is expressing yourself politically.” He said the constitutionally protected right of free speech is threatened “anytime you make a law to prohibit that. All this money is in politics. Anytime we try to restrict it by saying ‘You can’t do this, you can’t give that money’ is unconstitutional, because when you do that you are trying to limit speech. Jeff Burum did not make these rules. Blame George Washington, Thomas Jefferson, our founding fathers. The prosecution would have a problem with our founding fathers. There were negative hit pieces starting in the 18th Century. There were caricatures of Thomas Jefferson regurgitating $2 million in gold coins, saying he had made a mistake in the Louisiana Purchase, that he was involved in French despotism. There have long been negative mailers, and they are completely legal. They are okay. This comes from a Supreme Court case. In laymen’s terms… even though you are not in politics, the idea you can give money to a politician voting on things that concern you [is legal]. A business can give money to a politician before or after [a decision by that politician relating to that business]. That’s no big deal. It might look bad to some. But a vote in favor of [a business or entity or individual who has made a donation to the person voting] is not bribery. That is an unrealistic assessment. In fact, that is typical conduct, and is unavoidable where politicians are seeking contributions. This doesn’t sound right, but the reality is different than instinct. This is the way things are done.”
Maline said that reasonable doubt with regard to the prosecution’s allegations existed and that the threshold for determining guilt against the four defendants was that there “had to be an agreement,” i.e., a quid pro quo, in which Burum and Erwin agreed to give and Biane and Kirk agreed to receive money in exchange for the vote to approve the settlement or to deliver the vote for the settlement.
“The only way you can get to an agreement is through Adam Aleman,” Maline said. “So you have to have an abiding conviction with Adam Aleman. That is not proof beyond a reasonable doubt.”
Maline reminded the jurors of the commitment they made during jury selection. “We picked you because you would be fair,” he said. “You all told me that. If they [the defendants] didn’t cross that line, there is no proof beyond a reasonable doubt and they are not guilty.”
He told the juries to consider the prosecution’s effort. “They did not prove their case,” he said. “The government got it wrong. I ask you to vote the correct way.”
Stephen Larson, the lead attorney for Jeff Burum and a former federal judge and one-time Assistant U.S. Attorney, began his closing arguments on Monday afternoon. His presentation was the most well-attended portion of the nearly-eight month trial. The gallery in Department S-1, the largest courtroom in the 11-story San Bernardino Justice Center which accommodates two side-by-side jury boxes along the courtroom’s eastern wall and where, accordingly, the proceedings have been held since January, was filled to capacity, with the lion’s share of those in attendance being Burum’s friends, business partners, associates and family members. Among them was former Dodgers manager Tommy Lasorda. Larson continued and extended Maline’s use of props and filled his speech with literary conceits, illustrations and allusions, and used witticisms and jokes to not just leaven his sometimes intense presentation but to drive home certain points.
One of Larson’s conceits was to liken the atmospherics around the prosecution’s case to an “echo chamber,” suggesting that both the district attorney’s office investigators and the prosecutors with the California Attorney General’s Office and the district attorney’s office had isolated themselves and many of the witnesses into an enclosed chamber in which only expressions of suspicion and guilt were allowed to resonate and from which other reasonable explanations of the evidence were excluded.
Larson suggested that the prosecution had improperly sought to transform the two juries from judicial fact finding panels into an archeological expedition assigned to unearth a set of fossils that were to be assembled to achieve a pre-ordained conception of what is lying in the ground. “You are not archaeologists,” Larson said.
To illustrate this he used the prop of a 174-piece Lego Creator dinosaur kit, which depending on which set of instructions were followed, could be pieced together to form a triceratops or, variously, a tyrannosaurus rex. He displayed an alternate dinosaur of no particular pedigree which his children managed to assemble from the kit. In the same way, Larson suggested, the prosecution had created a monster of its own making based upon its creative arrangement of the testimony and evidence brought out at trial. “You can take these things and create them into whatever you want,” he said.
One major literary reference Larson utilized was the Samuel Beckett play, “Waiting for Godot,” in which two seemingly homeless main characters, Vladimir and Estragon, interact on a country road by a tree. They are awaiting the arrival of Godot, while engaged in sometimes poetic and other times prosaic musings and exchanges that aimlessly drift from subject to subject in both greater and lesser degrees of understandability. Godot never shows up. Larson’s suggestion is that the expected proof of bribery that was the main subject and central element of the trial, just as Godot was supposed to be the centerpiece of the drama, never materialized.
He said Burum has spent the last 18 years fighting county and state government on the Colonies case, first negotiating about the flood basin in 1999, then in civil court in 2002, and now the criminal case.
He said the political action committee (PAC) contributions prosecutors are calling bribes were legal and transparent – an effort by Burum to mend fences as the Colonies project continued in various phases long after the November 28, 2006, settlement. Larson said former county Supervisors Ovitt and Dennis Hansberger testified to that at trial.
It was not only the other three defendants and Postmus who each received $100,000 from Burum following the settlement, Larson said. Burum also gave four of his employees $100,000 bonuses shortly after the settlement, Larson said, as a reward to those who stood by him and assisted him during the legal struggle against the county: Lisa Schaefer, his company’s controller; his brother, Phil Burum; Lorraine LeClear, the chief of staff at Diversified Pacific; and Spencer Brown, Burum’s man Friday. “They worked very hard through this litigation,” Larson said. Two days after the settlement was reached, Burum contributed $250,000 to a cultural and literacy promotion campaign in Rancho Cucamonga, Larson said. “The first contribution was made on November 30, 2006 – $250,000 to the PAL Campaign Promoting Arts and Literacy campaign in Rancho Cucamonga,” Larson said.
Burum had created a company devoted entirely to building affordable housing, Larson said.
“There was no devil in those numbers. They (Colonies Partners) were just in a different position,” Larson said.
Larson said Burum, Biane, Erwin and Kirk are “four innocent men. Their lives are in your hands. This is about liberty. They aren’t guilty. The prosecution’s case carefully considered renders that result. This process started years ago. It is tough to fight the government.”
Larson said that with regard to the early discussions between the Colonies Partners and the county flood control district over the arrangements for flood control facilities on the Colonies property, county officials defrauded Burum with regard to the county’s intended use of the flood control basin on that property after he voluntarily agreed to the county’s terms and to construct the basin. Burum’s fight with the government and the government’s deceit has resulted in his being prosecuted over his action, Larson said. The prosecution ultimately manifested in the trial at which the evidence of a bribe was to be provided. “Godot is not showing up,” Larson said. “We’re waiting for evidence of a bribe and it doesn’t exist six months later. We could still be going six months from now. The ‘Waiting for Godot’ has got to stop. This will go on until these two juries hopefully put an end to it. I hope that is what you do. So, where’s the beef? How much money and resources have gone into this investigation from November 2008 until now, 2017? Why are we here? We are here because of an echo chamber.”
Larson then referenced Hollis “Bud” Randles, the lead investigator on the case, referring to him as a “big game hunter,” which was not intended literally but rather as an allusion to Randles own words in describing to one of the witnesses he interrogated, Postmus’ associate Bob Smith, that he and his investigative colleagues were hunting “big game,” i.e., high ranking elected officials and politicians. “He [Randles] is a big game hunter, Vietnam vet, served in combat, was with the Los Angeles Police 20-some years,” Larson said. “Great cop, good soldier, but he was ill-prepared to put together the largest corruption case in San Bernardino County. He did not understand it. He had biases, and never let them go.”
Shortly after the $102 settlement was voted upon, Larson said, Randles concluded that was an exorbitant amount of money and he became suspicious. But those were just unsubstantiated suspicions, Larson said.
“Only one thing brought this from suspicion to a case: Adam Aleman,” Larson said.
Randles had allowed his biases and his suspicion to override his judgment and his professionalism, Larson said, an example of which was that he learned that Burum was in China in 2005 but was not there in 2006, and that supervisor Josie Gonzales was in China in 2006 but was not there in 2005. Yet when the prosecution during trial brought Gonzales in to testify that she had a near encounter with Burum in China in 2005 and studiously avoided him out of fear that doing so would compromise her with regard to voting on the Colonies settlement, Larson said, Randles failed to straighten the prosecution out on that discrepancy and point out that Gonzales and Burum were not in China at the same time.
The use of this false evidence, Larson said, was an indication of the prosecution’s “win-at-all-cost” mentality.
“The obligation of the prosecution is not to win the case, but that justice be done,” Larson said. “Has justice been done? I don’t have to ask you for you to see that it hasn’t.”
The prosecution alleged, Larson said, that “Mr. Postmus was taken advantage of, that it was Mr. Burum who was taking advantage of his drug use. That’s not true. It was the investigators who took advantage of his drug use.”
The district attorney’s office, Larson said, clearly knew about Postmus’ drug use.
“They prosecuted him for drugs, but didn’t test him, didn’t provide treatment,” Larson said, asserting that it was at that time, while Postmus was in a “paranoid, memory lapsing condition” that he was interrogated and questioned repeatedly, and false ideas consistent with the prosecution’s theory of guilt were planted in his addled pate.
“By June 2012 he was clear, but how many times was he interviewed at that time?” Larson asked, and then said, “He was not questioned until he walked into this courtroom.” Because he was no longer under the influence of drugs, he was not vulnerable or suggestible, Larson said. “They didn’t want to hear that.”
Larson took issue with the prosecution’s assertion that a search of the computers at Burum’s home and office which were seized during the serving of search warrants in September 20011 turned up evidence Burum had done research over the internet in January 2006 on Postmus’ and Biane’s electioneering funds so he could find entities through which he could launder bribes. Larson suggested that research was being done so Burum or someone in his office could make an accurate report to the California Fair Political Practices Commission on how much money Burum through his companies, Colonies Partners, Colonies Crossroads and Diversified Pacific, had made to various political candidates because, as a “major donor” he had to make those disclosures. That the research was done in late January coincides with the January 31 reporting deadline imposed by the state, Larson said. What was being looked for, Larson said, “was Paul Biane’s ID number and Bill Postmus’ ID number.” He was referring to the Fair Political Practices Commission identification number issued to candidates.
Larson was even more critical of Mandel having characterized a note in Postmus’ handwriting – headed “To do List,” as evidence of a bribery scheme that was “really as good as it gets.” Those notes referenced land deals involving Jeff Burum and Dino DeFazio, a real estate mogul in San Bernardino’s High Desert. Mandel presented no further evidence of land transactions or investments involving Postmus, Burum, and DeFazio or any combination thereof, Larson said. Instead, Mandel made an assertion that something nefarious was going on without marshaling any proof. “Dino DeFazio could have been called [as a witness by the prosecution],” Larson said, and he could have been asked “Is this a land deal? Is it a land deal you want to do with Jeff Burum?”
Larson said the prosecution had raised “two big questions in the case,” the first of which was “Why did the supervisors settle the lawsuit with the Colonies Partners on November 28, 2006 and not follow the advice of the county’s lawyers to see the litigation through, and the second of which is why did the Colonies Partners make the $100,000 contributions to the political action committees controlled by Postmus, Biane, Erwin and Kirk in 2007,” following the settlement.
Larson suggested that the rationale that Gary Ovitt gave when he testified – that he respected the rights of private property owners and that the Colonies Partners owned the property – was the basis for the answer to the first question. “There is no question who owned the property,” Larson said. “The Colonies [partners] owned the property.” Larson said the litigation between the Colonies Partners and the county and the later prosecution of the defendants demonstrated a “fundamental misunderstanding of these property rights.” He said that the board majority’s willingness to settle the lawsuit was “maybe a conservative Republican, pro-development thing,” which others might disagree with, but that this was a legitimate philosophy that motivated Postmus, Biane and Ovitt, and that it had nothing to do with bribery.
Larson told the jury the consideration of what motivated those who voted for the settlement had nothing to do with “whether or not you subjectively think the settlement was good or not,” but rather with determining whether Postmus and Biane’s vote to settle the lawsuit was consistent with their own philosophy. He said the settlement was consistent with upholding the principle of private property rights and was “objectively reasonable,” the phrase that Mitch Norton, the deputy county counsel whose task it was to represent the county in the lawsuit against the Colonies Partners and who at the time of the settlement was counseling against it, ultimately used in describing the $102 million payout.
With regard to the second question, Larson said, the donations to the political action committees were “made to mend fences.” He said that Ovitt, who voted for the settlement, and supervisor Dennis Hansberger, who voted against the settlement, “both talked about mending fences.” After the settlement was effectuated, Larson said, “The need for [the] Colonies [Partners] to have good relations with the board of supervisors did not end.”
Larson acknowledged that Burum has a strong personality.
“Jeff Burum is who he is,” Larson said. “He is not someone to hide his feelings. He is not shy. Whether you like it or not, you have to put that aside. It’s not easy. We respond to personalities. Some we really like. Some we really don’t like. That’s not what this is about.”
It was Burum’s success that allowed him to make the donations he did, according to Larson.
“That Mr. Burum has been successful is not a crime,” said Larson, adding that citizens seeking, and gaining influence over their elected officials is not illegal. Those in the development business, Burum included, communicate with elected officials who make decisions with regard to their projects by donating money, Larson said. “This is just the way land developers are,” he said. Larson vectored the juries’ attention to one developer, Young Homes and its principal Reggie King, who had evinced largesse toward elected officials in that time frame that was comparable to that demonstrated by the Colonies Partners. On the courtroom’s overhead visual display Larson projected a campaign finance reporting document showing Young Homes had given $135,000 in 2006 to the Committee to Elect Bill Postmus.
He also referenced Mike Gallagher, a developer in the High Desert, who contributed $110,000 to Postmus in 2006.
“This really is a business as usual circumstance,” said Larson.
Burum, Larson acknowledged, was a particularly effective wielder of influence, which was based on his upbringing, personality, personal intensity and the circumstances he found himself in.
“Jeff was at war with the County of San Bernardino,” Larson said. “You should not hold that against him. Despite the county’s [tactics] and whatever forces were working against him, he had worked himself up from nothing. He had a right. He was in a position [to hand money out to politicians in an effort to buy influence].”
The attorneys working for the county had the ear of the board majority, Larson said, and it was not illegal for the Colonies Partners or its advocate to try to “give the board better information than what they were getting from their lawyers. It is not illegal to have off-calendar meetings. It is not illegal to be sending messages through media consultants.”
Larson reiterated Maline’s point that a constituent providing political donations to an elected official either closely before or closely after that official making a decision impacting that donor might have an untoward appearance and look like a conflict of interest but that a Supreme Court decision has deemed such activity legal.
The prosecution has acknowledged, Larson said that the tactics Burum employed toward gaining influence with the board and in dealing with the county were legal and that each individual act he engaged in had not crossed the line. Nevertheless, Larson said, Mandel and Cope were alleging that the sum total of those was tantamount to a massive criminal conspiracy.
“There have been lots of statements about what is not illegal but somehow all the legal acts [together] constitute the defendants being guilty,” Larson said. “Two wrongs don’t make a right, but somehow in this case, fifty rights make a wrong.”
He then returned to the theme of Burum’s success. “The prosecution says it is not illegal to try to influence them [public officials] but if you actually influence them, that is wrong,” Larson said. “It is as if you are successful in advocating and you are successful in invoking your First Amendment rights, that is corruption.”
Larson said, “There were many reasons for Jeff Burum to make large political contributions to gain influence. There are no witnesses other than the admitted liar, Adam Aleman, testifying there was bribery. There is no evidence of intent to commit the charged crimes. One person connects them, Adam Aleman. That is what this case is about.”
Larson said that the prosecution had used emotionally loaded “buzz words” such as “secret” and “political cover” to imply guilt, trying to leave the impression with the juries that “if you are seeking political cover, that is corrupt.” Like Maline, he reached for an analogy from American history. “For Abraham Lincoln, freeing the slaves in the south was all about the machinations of creating political cover,” Larson said, noting that change often needs to be “achieved in incremental steps. Political cover is not a bad thing. Getting political cover is what politicians do to get things done.”
The people who work with Burum, Larson said, describe him as “smart, brilliant, strong, that he is not someone to be pushed around. But he is not the bully described by the prosecution.”
The events that led up to the lawsuit with the county demonstrate that element of Burum’s personality, Larson said. “After two-and-a-half years of water summit negotiations, he signed on November 24, 1999 a “consent” agreement with the county over the use of a portion of the Colonies property for a flood control channel. “But then his lawyers figured out he had been lied to and defrauded,” Larson said. “He responded with a quiet title action [to clarify ownership and control of the property in dispute].” Larson said there arose allegations of “breach of contract, based on the 1999 fraud. Only then, they [the Colonies Partners] filed an inverse condemnation lawsuit. Jeff was mad about that. Of course, he fought back at that point.”
Larson likened Burum to “John Wayne or Jimmy Stewart, the quiet silent type, who when he gets pushed around doesn’t back down.”
Larson acknowledged that Burum grew visibly disturbed during Aleman’s appearances in the courtroom. “It was hard to take Adam Aleman. He [Aleman] lied about him [Burum]. He hurt his family, his life. Is he upset? Yes. You know he is law abiding. How many documents, how many forms [did the investigators go through]? They went over his major donor forms. He was put under a microscope. I wouldn’t want someone looking through mine.” In the millions of dollars of contributions Burum and his companies made, the reporting was nearly impeccable, Larson said. “One thing falls through, $2,500 fell through the cracks,” he acknowledged.
The prosecution built its case on the lies of Adam Aleman, whom the district attorney’s office, Larson said, had “over a barrel,” and a “drugged out Bill Postmus. Bill Postmus would say literally anything Bud Randles and [district attorney’s office investigator] Bob Schreiber told him. The prosecutors and investigators at best wore blinders and pursued a pre-determined narrative.”
The prosecution’s case, Larson insisted, “is not logical There was a massive number of contradictions, inconsistencies, missing links and holes in the evidence presented. It really has been a nightmare for Jeff Burum. He’s innocent. So is Paul. So is Mark. So is Jim. They are good men. They did not commit this crime. They made mistakes along the way.”
Burum, Larson said, was a hard working and resourceful individual “who doesn’t break the law, but he is going to use every tool that this great country, made by the men and women who came before him, offers.” Now, with the prosecution relentlessly bearing down on him to convict him of a crime he did not commit, Larson said, Burum was standing up against the corruption of the prosecution, which is hellbent on getting a conviction at all costs. “Thank God we at least have a system where, if someone has the resources and the wherewithal, they get to stand up like Mr. Burum has done,” said Larson.
He told the jurors “to rely on … your common sense in returning not guilty verdicts.”
After Larson’s power-packed presentation, Mandel on Wednesday afternoon gave her rebuttal, the last presentation made with both juries present in the courtroom before Judge Michael Smith gave the final jury instructions to the panel considering the case against Burum, Biane and Kirk.
She cited as key to the case the testimony of Bill Postmus pertaining to his having been threatened, blackmailed and extorted by Erwin to settle the lawsuit prior to the vote to do so and his testimony that prior to the settlement vote Burum promised to take care of him politically and financially once the settlement was made. She acknowledged that Postmus went along with the defense theory that some of his testimony was “false memory” planted by district attorney’s office investigators in his drug-crazed mind. That theory was promulgated by one of Burum’s attorneys, Jennifer Keller, during her cross examination of Postmus. Nevertheless, Mandel said, that testimony at that moment on the witness stand by a man who had been broken by years of drug abuse and was under a withering cross examination by a hostile lawyer must be compared to the testimony he provided at other times, including at the trial, to the grand jury, to the FBI and in his own plea agreement when he acknowledge taking bribes. His response to Keller on the stand, Mandel said, was the single “conflicting statement” to the version elicited from him in all the other contexts. “Only one version can be true,” Mandel said. “Examine Mr. Postmus. You have a lot of information, what was on his mind, what was going on in his life at various times, what happened in this courtroom when he said his memory was planted. That is the truth speaking process. Truth emerges from all of the lies.”
She and Cope had managed to put the case before them, Mandel told the jurors, despite having to use a significant number of witnesses who are sympathetic to the defendants. Even so, she said, those witnesses supplied information that was relevant to the guilt of those charged. “This case was presented through many hostile witnesses,” she said. “The prosecution had witnesses, some who were involved, some who had deep friendships, long lasting loyalty, [knowledge about] crimes that happened long ago that was concealed and discovered. Even when it was discovered, the prosecution was looking back at events years ago.” But those events and actions could be put into perspective, she said, and the “exhibits, submitted by both parties, looked over by the court, are there for your review. Those are a guide post to look at.” She referenced Maline’s and Larson’s use of props. “What we saw yesterday was fun to watch, $1,000 handed to a juror, some of those props, but your decision must be based on the evidence.”
Mandel continued, “I want to talk about the First Amendment. Despite the argument that we are trying to trample First Amendment rights, I want you to know we all care about the First Amendment. Mr. Cope, my bosses, the judge, want you to know you do not in the state of California have a First Amendment right to commit bribery. The law you are going to be given, what we are talking about, is finding the facts of the law. You go through the process. You will be honoring the defendants’ First Amendment rights because there is no First Amendment right to commit bribery. You can feel comfortable, if you find the defendants guilty, that there is no First Amendment issue involved.”
The defense, Mandel said, had boiled its case down to the quintessence, from which it had constructed campaign slogans: “Zero evidence there was a bribe” and “Adam Aleman, a liar, is the narrator of this story.”
But evidence of the bribes had been presented, Mandel said, despite the defense’s false rhetoric, and Adam Aleman, while being “part of the story” was an element who supported the prosecution’s case based on documentation. “Mr. Larson acknowledged [in his closing argument] that this has always been a paper case,” Mandel said. “The paper in this case established a time line that helps you navigate through the testimony, when things happened and how it was heard. No matter how much of a campaign slogan they tell you, how Adam Aleman is the narrator of this story, Adam Aleman is an important character of this story. So is Bill Postmus. But it is not a story that is told by Mr. Adam Aleman. He pointed the investigators in the right direction. He did it for his own selfish purposes, but he did it. The investigation expanded because of it.” That did not make what the investigators uncovered, the documents upon which the case is based, invalid, she insisted. Indeed, she said, those documents validate the case and that is why, Mandel told the jurors, the defense has repeatedly sought to divert their attention from the documents – the paper – to Aleman.
She tore into Larson for complaining that she had referenced in her final argument passages from 26 prosecution exhibits admitted without testimony. “They were admitted by stipulation,” Mandel said, “slipped under the door, Mr. Larson said. Then he slipped some under the door because he needed to talk about it.”
She continued, “Mr. Larson said he was ‘flying in the dark’ during his closing arguments. The defense investigators interviewed witnesses. The defense gets discovery. They get everything we have. All interviews are recorded. Some are video-recorded. There is no information that you see that the defense didn’t have.”
Mandel acknowledged as true Maline’s and Larson’s assertion to the juries that if they are confronted with two reasonable conclusions from the evidence, one pointing to innocence and one pointing to guilt, they must vote to acquit. Still, she said, “when considering circumstantial evidence you must accept only reasonable conclusions and reject any that are unreasonable.” In this way, she said, the defense was demanding of the jurors that they make unreasonable interpretations of the evidence when the more reasonable conclusions were that the defendants were guilty as charged. She then sought to use Larson’s Lego dinosaur construction kit prop against him. “From that box of Legos we saw yesterday, you can make a reasonable dinosaur out of it, and another [grotesque construction],” she said. “You go with the one that is reasonable. Assess only conclusions that are reasonable. Reject unreasonable conclusions.”
In its responses to the evidence and case put on by the prosecution, Mandel said, the defense attorneys utilized smoke and mirrors to divert the juries from a focus on the indicators of guilt. In several instances, she said, the defense neither addressed nor challenged the implication of guilt.
“What was the explanation of any of the four defense attorneys for why the contributions were made into political action committees when defendants had active campaign accounts?” she asked. “None. The inference is there was intentional concealment of large contributions to the same individuals who got the Colonies settlement done,” i.e., Postmus, Biane and Kirk. In this way, she said, the contributions were not meant to “mend fences,” but as secret rewards, e.g., bribes, to the recipients.
“What was the explanation … as to why Adam Aleman was posing as Dino DeFazio to run the Inland Empire PAC [political action committee] secretly controlled by Postmus?” Mandel asked. “None. The inference is the PAC is a sham to conceal a bribe. There was no alternative inference as to why Adam Aleman would do that. What was the explanation … as to why Kitty Stinnett was listed as an officer of the Alliance For Ethical Government PAC [controlled by Kirk] without her knowledge, and transactions conducted in her name without her knowledge? None. The inference is the PAC is a sham to conceal a payoff to Mark Kirk for his role in getting the settlement approved. What was the explanation… as to why Matt Brown and Tim Johnson [the highest ranking members on Biane’s supervisorial staff] opened a PAC secretly controlled by Paul Biane? None. The inference is the PAC was a sham to conceal a bribe. These people already have accounts. Why open a PAC? This inference of guilt is not challenged. What was the explanation of any of the four defense attorneys for how $100,000 [donated from the Colonies Partners] to a drug addicted assessor who had no vote on future projects [Postmus] helped mend fences for ongoing projects? None. The inference is that the contribution to Postmus was not for mending fences or ongoing projects but to conceal a bribe. Bill Postmus was at the height of his drug addiction. What was the explanation for giving money to Bill Postmus when he was at the assessor’s office, when his drug addiction was at the worst and he has no votes on anything that Jeff Burum is doing? There is no explanation for that.”
Mandel displayed the May 23, 2007 email from Erwin to Postmus confronting him with a demand that he take measures to overcome his drug addiction which Maline had referenced. This proved, Mandel said, that there was widespread knowledge about Postmus’ drug problem. “One month later, a payment of $100,000 [went to Postmus’ two political action committees, the Conservatives for a Republican Majority and the Inland Empire PAC, in $50,000 increments],” Mandel said. “This is a bribe payment in return for the $102 million settlement. That is the only possible explanation for Mr. Burum giving money to a druggy. That is not even consistent with their own case. It is a payoff.”
Continuing, Mandel asked, “What was the explanation of any of the four defense attorneys as to why $100,000 was given to Mark Kirk, the chief of staff for a sitting county supervisor who had no votes, no influence? How is that going to mend fences? What was the reason the defense offered to you as the reason why Mark Kirk got $100,000 from Jeff Burum? What they told you is that was because Mark Kirk wanted to run for supervisor. But there was already an account: Mark Kirk for Supervisor. That account got zero dollars from Mr. Burum.” Mandel said the money Burum gave to Kirk went to his sham political action committee, the Alliance for Ethical Government, of which he was not listed as an officer, because that was part of an effort to hide the money he was receiving and disguise the bribe as something else. “The Alliance for Ethical Government was a sham and this was a payoff,” said Mandel.
Mandel said the defense had offered no explanation as to why all five of the political action committees – Biane’s San Bernardino County Young Republicans, Postmus’ Inland Empire PAC, Postmus’ Conservatives for a Republican Majority, Erwin’s Committee For Effective Government and Kirk’s Alliance for Ethical Government – were all originally set up to hide Biane’s, Postmus’, Erwin’s and Kirk’s involvement in them, and that the files or incorporating documents of three of those committees – , Postmus’, Erwin’s and Kirk’s – contained forgeries. “The inference is that they were all deceiving their accountant as to their degree of control over the funds,” Mandel said.
Mandel referenced a newspaper article in which Burum claimed that he did not know who was in control of the PACS. Burum was quoted in the article as saying “When we give money to PACs, it’s in support of causes, issues and candidates who support policies that make the Inland Empire stronger.” He claimed in the article that he did not monitor who the people are who serve on the committees, only what they are promoting. “If I believe in what they pitching me on, I write a check. I don’t follow what they do with it,” Burum was quoted as saying.
Mandel contrasted that with Burum’s defense team’s assertion that the donations he made to the PACs were done so with the intention of mending fences with Postmus, Biane and Kirk.
“He lied to the press about his knowledge of the PACs’ ownership and control at the beginning of the investigation,” said Mandel. “The inference is he was lying to conceal his aiding and abetting of bribery.” This belies the defense’s characterization of Aleman as an untrustworthy liar, Mandel said. “Adam Aleman tipped off Bud Randles,” she said. “Bud Randles and his team searched Betty Presley’s office [Betty Presley was the accountant/treasure for many politicians’ campaign accounts, including all five PACs involved in the Colonies case]. All of this comes out. There is a flurry of activity.” Later in 2009, Mandel said, the principals had “to admit the PACS were theirs.” It was Aleman telling the truth and the others who were lying, she implied.
Similarly, she said, Biane had stated publicly in 2009 that he was connected to the PACs and said he “welcomes the investigation of Colonies and said he had nothing to do with the campaign accounts,” Mandel said. “At this this time, they had not gotten their story straight.” She noted that in an April 22, 2009 interview with district attorney’s office investigators, Kirk said he did not know why the Colonies Partners gave his PAC $100,000. She noted that around that time Kirk had gone on the record saying that there was a problem with PACs in that “quite often people are able to form them and no one knows who’s behind them.” Kirk called it “a loophole in the law.”
These statements were part of Kirk’s eventually successful push for greater disclosure and transparency with regard to campaign donations to county officials.
“Neil Derry [who was elected to the board of supervisor in 2008] used Bill Postmus’ PAC to do exactly that,” Mandel said. “People who are trying to avoid transparency required by the laws at that time, such as Mark Kirk and the sophisticated defendants, knew that this was a loophole in the law that they capitalized on. They can’t have it both ways. They can’t stand up here and say that they are mending fences and then say that they don’t know what they do with the money or who they are.”
Mandel said evidence of blackmail and intimation, extortion and bribery existed in Biane telling the press in October 2006 that the proposed settlement numbers were “astronomical” and “out of the stratosphere,” and his acceptance, a little more than a month, of the settlement on the Colonies Partners’ terms.
“Aiding and abetting receiving a bribe requires something more than just paying a bribe,” said Mandel. The evidence of those threats ahead of the settlement meets that requirement, she said.
“Mr. Burum and Mr. Erwin orchestrated this entire thing,” she said. “One big thing they did is threatening to expose [Postmus with regard to his drug use and sexuality and Biane with regard to his personal finances]. Adam Aleman was called out as a liar. If Adam Aleman is a liar, then Paul Biane is a liar because he is saying similar things to the press. If Adam Aleman is a liar, then Patrick O’Reilly [Burum’s publicist/public relations consultant] is a liar. Mandel reminded the jury that O’Reilly testified he was with Burum and Erwin at the Double Tree Hotel in Ontario on the night of October 18, 2006, just before a mediation session with the board of supervisors was to be held nearby the following day. O’Reilly’s testimony extended to his presence at that “late night meeting where Spencer Brown, Jeff Burum’s driver, his employee, shows up and drops off a bag of hit pieces,” Mandel said. These were, she said, “hit pieces, personal attacks Adam Aleman said were the nasty ones that Jim Erwin was talking about.”
The Colonies Partners had been a major campaign donor to Biane and had helped to put him into office. But in 2006, Mandel said, Paul Biane was looking toward “a future political career” and he was hyper-conscious that giving the Colonies partners the $102 million the company was demanding would not be likely “to propel him into Congress.” Biane wanted to settle the case, but not for $102 million, Mandel said. “Paul Biane was looking for that sweet spot [i.e., enough money to please the Colonies Partners but not so much as to enrage the public with the giveaway of public money].” The questions Biane was wrestling with were, Mandel said, “How much public money do I give to Jeff Burum so he continues to fund my political future?” and “At what point is this going to collapse because it is just too big? That is what is going on between Jeff Burum and Paul Biane in 2006.”
The hit pieces Aleman and O’Reilly testified about were those pertaining to Biane. Mandel said those were the trigger – the threats – that caused Paul Biane to fold, to knuckle under and support the $102 million settlement and ultimately accept the $100,000 bribe in the form of a political contribution for having done so.
Mandel reiterated for the juries Patrick O’Reilly’s testimony that Jeff Burum intended to pass large amounts of money through SEBA, the Safety Employees Benefit Association, to the county supervisors. SEBA is the county’s sheriff’s deputies union, of which Erwin was once president. In 2006 he was SEBA’s executive director and had tremendous sway over the hundreds of thousands of dollars it had in its political action committee coffers. The defense did not cross examine O’Reilly and let his testimony on direct examination stand. O’Reilly’s uncontested testimony demonstrated, Mandel said, that Jeff Burum and Jim Erwin conspired to funnel money secretly from the Colonies Partners to the board of supervisors. The coup de grâce in this respect consists of the testimony of Colin McKenzie, SEBA’s treasurer at that time, that two $75,000 contributions from the Colonies Partners to SEBA in the 2006 time frame were not reported at that time, according to Mandel. Meanwhile SEBA funneled money to Biane and Postmus, she said.
“What was the explanation for the six month delay in reporting, which meant that SEBA’s contribution to Paul Biane’s newly opened PAC could not be traced to [the] Colonies [Partners]?” asked Mandel. “There was none. The inference is that Jim Erwin was concealing that the Colonies money was going to Paul Biane.”
Mandel noted for the juries that Patrick O’Reilly testified that Burum told him that Paul Biane had financial problems. “This corroborates Adam Aleman’s and Bill Postmus’ testimony that Jeff Burum threatened to expose Mr. Biane’s financial problems if the settlement was not reached,” she said.
Mandel noted that in his closing argument, Biane’s attorney, Mark McDonald called Aleman’s assertion that Biane had financial difficulties that were being exploited by Burum and Erwin a “damned lie.” But, Mandel said, “Patrick O’Reilly said the hit pieces attacked Paul Biane’s finances.” This shores up Aleman’s credibility on that score, Mandel suggested.
Mandel returned to the questions of “Why did the supervisors settle on November 28, 2006 and “Why did the Colonies Partners make PAC payments in 2007.” The answer to the first question, Mandel said, “is some of them were expecting payoffs.” The answer to the second is “The supervisors that were bribed were receiving payoffs.”
The litigation the county was involved in with the Colonies Partners was never fully adjudicated, Mandel said, having been resolved by the settlement. Ultimately, she said, the jury could conclude “they [the supervisors] did the right thing in settling and still find that they committed bribery when they did that.”
Along those lines, Mandel told the jury that “Mr. Larson now admits it matters why Postmus and Biane settled,” and that they had reasonable grounds for doings so. “The other side of the story,” Mandel said, “is Bill Postmus and Paul Biane acknowledge it wasn’t settled because it was a good deal. Bill Postmus told the FBI on October 14, 2011 he had heart-to-heart discussions with Paul Biane.” She then quoted a statement Postmus made during that interview: “We were being bent over big time,” Postmus said. “We felt like $102 million was a ridiculous amount of money, astronomic.”
Mandel said it is “the people’s burden to prove every single element beyond a shadow of a doubt. We take that seriously, embrace it, and understand it is critical to the job we do. I attempted to show you in the first part of closing argument last week that we met that burden through the evidence, testimony and exhibits. The defense requires us to do that. There is no requirement that they call a single witness, but they can. Mr. Larson told you in his opening statement that they would. The reason I point this out is not because they have some burden. They can sit there. They don’t have to call any witnesses. They can hold us to our burden. What I have heard is that there is no evidence.”
She then ran through the witnesses that Larson said he would call, including the lead attorney for the Colonies Partners in the civil case against the county, Scott Sommer. “You didn’t hear from Scott Sommer in this trial,” she said. “They decided we didn’t prove our case. They can think that to the end. There is no obligation that they bring this witness. The entire reason Paul Biane did this settlement is that he was relying on advice of their attorney, Scott Sommer.” She pointed out that Biane and Postmus and the county’s attorneys went into a March 25, 2005 meeting with Burum, co-managing Colonies Partners principal Dan Richards, Sommer, and Colonies Partner Heidi Timken, with Biane looking forward to showing that a recent appellate court ruling establishing the county had intact flood control easements on the Colonies Partners’ property, and this could establish the county owed the Colonies Partners nothing. But Postmus dismissed the lawyers from the meeting and allowed the Colonies Partners’ consultant, Jim Brulte, to referee a negotiating session between Biane and Postmus representing the county and Burum and Richards representing the county. Biane emerged from that meeting amenable to settling the case by giving the Colonies Partners $22 million in cash and $55 million in land. Some “magic math” had been used to convince Biane to cave in like that and it was Larson who chose to not have Sommer testify for the defense and be subject to cross examination by the prosecution, Mandel said.
Larson had said during his January opening statements that he would call other witnesses such as the investors in the Colonies Partners. He never did, Mandel pointed out. “They were supposed to come in here and say we got it wrong,” she said. “He did not call Spencer Brown. He chose not to call Spencer Brown, who delivered a Kinko’s bag [which contained hit pieces relating to Paul Biane], according to the uncontradicted testimony of Patrick O’Reilly. That bag contained hit pieces attacking Mr. Biane’s finances, which were to be used to get him to settle the Colonies case. They could have called Spencer Brown and asked him what was in the bag. They did not. That leaves the testimony of Patrick O’Reilly as to what was in the bag uncontradicted.”
Moreover, Mandel said, “They did not call Dan Richards.”
Mandel quoted Larson’s assertion “This is just the way land developers and real estate developers do things,” and then said, “That is not a defense. If something doesn’t add up, it can’t be excused as ‘politics as usual.’” She said the Colonies Partners and their public relations machine had desensitized the public by throwing around large numbers.
“$200 million, $250 million, $300 million,” she said. “Talking in extremes can make things that are unacceptable seem acceptable. You need to rely on common sense and experience. Approximating in ranges of millions, tens of millions and hundreds of millions of dollars can minimize the significance of each incremental step in that range. Public officials owe a fiduciary duty to the citizens. $102 million is a lot of money.”
Mandel said, “Paul Biane and Bill Postmus received bribes. Jeff Burum and Jim Erwin aided and abetted them in receiving the bribes. They used a carrot and stick approach: ‘We can make you or break you.’ Jeff Burum and Jim Erwin were fully engaged. They are all guilty of the same charges, Penal Code 86 and 165 [bribery and bribery related receiving of money or something of value to influence a vote]. In aiding and abetting and conspiracy, a person is equally guilty of a crime whether he commits it personally or aided and abetted or was a member of criminal conspiracy.”
Aiding and abetting, Mandel said, can consist of an act to “facilitate, promote, encourage or instigate the perpetrator’s commission of a crime by using threats intimation or coercion to compel the perpetrator to commit that crime. Since Mr. Burum and Mr. Erwin worked together, they are also guilty of bribery as co-conspirators.” Mandel told the jurors to “focus on each person. What is their understanding? What is it that they are agreeing to do? There was a coordinated effort to receive the money into the PAC. That shows a consciousness of guilt. You don’t hide money that is legal. They were taking extreme measures to hide money from prosecution. The defense is trying to rewrite the law on quid pro quo. The defense wants you to believe they had to agree in advance on the $100,000 to break the law.” That the precise amount of the bribe was not set in stone in advance does not make it not a bribe, Mandel said. “At the time, they don’t know how much they are getting,” she said. “Otherwise, developers could say to officials, ‘I am going to give them something, but I’m not going to tell you what it is.’ The suggestion is that they had to know it was going to be $100,000. No, it just had to be something of value.”
As to Mark Kirk, Mandel said, “Count 9 is not the crime of changing Gary Ovitt’s mind. The crime has nothing to do with the relationship between Mr. Kirk and Mr. Ovitt. The crime relates to Mark Kirk and Jeff Burum. He doesn’t need to change Gary Ovitt’s mind. We can’t prove that Mark Kirk changed Gary Ovitt’s mind. You don’t need that. What you need is an agreement between Mark Kirk and Jeff Burum that he was going to deliver Gary Ovitt’s vote.”
Mandel returned to Postmus’ handwritten “to do list” discovered by investigators.
“It was written by Bill Postmus when he was leaving office,” Mandel said, and it corroborates Aleman’s testimony that Burum had made offers of future support to Postmus whether he remained in office or left office, and it corroborates Bill Postmus’ testimony that Burum made a three-part offer to 1) support him in future political efforts, 2) help him in private sector endeavors once he was no longer in office or 3) that he might get him a board position on one of the nonprofit companies Burum had set up. Postmus’ testimony, because he was an accomplice, is insufficient to convict Burum, Mandel explained, without corroboration.
“Postmus is an accomplice [in receiving a bribe],” Mandel said. “Say you do believe him when he said Mr. Burum made that three part bribe offer. You can’t accept that to convict the defendant, unless you have corroboration of Bill Postmus’ statement. Here he is talking about land deals. He is leaving office. He is thinking about land deals with Jeff Burum. It shows us what is in his mind, in handwritten form when he is preparing to leave for the assessor’s office. We don’t know if deals ever happened, but do know that was what was on his mind.”
The defendants and their legal teams are demonizing Aleman now, but that wasn’t always the case, Mandel said. “Adam Aleman they called liar, liar, liar. When he was committing perjury and falsifying documents, he was hanging out with Bill Postmus and Jeff Burum. They knew about it. They weren’t calling him that when they were bailing him out of jail or offering help on his case in 2008. What I am saying is that Adam Aleman pointed investigators in the right direction. The fact is when he was doing all those things, he was hanging out with them.”
Jeff Burum, Mandel said, offered Postmus “things if he got the Colonies settlement done.” She said he clearly testified to that during the trial, said the same thing to the district attorney’s office investigators, as well as to the grand jury and the FBI. “It was very clear there would be contributions after the settlement. His first claims of false memory came on cross examination by a defense attorney.”
Mandel told the jurors, “You are not sitting in moral judgment on these defendants. You are just deciding if they commited the acts they are charged with. Judge [Michael A.] Smith will decide the penalty. You are the deciders of facts, you alone. Our system of justice places enormous trust in a jury to decide truth from falsehood.”
Mandel said, “The defense asked you to return a quick verdict and send a message. I am not concerned how long you take. Weigh all the evidence from both sides. Your verdict is not a message. Your verdict is whether or not they committed a crime.
“They asked you to send a message,” Mandel continued. “What would it be? That local, state and federal law enforcement officials are political pawns? A message of hopelessness? Your officials are bought and paid for? Or is it a message that if you want to get a job done in this county, go threaten them? Land developers and politicians are subject to the same laws everyone in California is subject to. There is no exception for special people who think they are shielded by their wealth or their position. This is not a world of big money, big politics where some are above the law. There is no big-shot exception to the bribery law. Your message is to determine whether Jeff Burum, Paul Biane, Mark Kirk and Jim Erwin committed the crimes they are charged with. That is your job.”
Separate juries, one for Erwin and one for the other three defendants, are now in deliberations.
By Ruth Musser-Lopez and Mark Gutglueck