Superior Court Judge Michael A. Smith yesterday brought to a close one of the more dramatic chapters of San Bernardino County history with the sentencing of Bill Postmus, the boy wonder of politics whose bold and mercurial rise to the pinnacle of governmental power at the beginning of the Third Millennium ignominiously ended in scandal a decade ago.
In 2000, Postmus at the age of 29 was elected First District county supervisor representing practically all of San Bernardino County’s desert expanse, equal in area to three New England States. By the time he was 33, he became the chairman of both the board of supervisors and the county’s Republican Party apparatus, and two years later he was entrusted by the voters with the county’s highest taxing authority when he was elected county assessor. On Thursday, November 15, 2018, Judge Smith consigned him to spend the next three years in state prison.
The sentencing comes more than seven years and seven months after Postmus pled guilty to 14 felony charges relating to acts involving political corruption he was alleged to have participated in during his tenure as both supervisor and assessor along with a single misdemeanor drug possession charge. The sentencing was delayed because an element of his plea agreement was that he cooperate as a witness in prosecutors’ efforts to bring to justice others involved with him in his depredations. The trial for four of those defendants – Jeff Burum, Jim Erwin, Paul Biane and Mark Kirk – was subject to multiple delays and did not begin until January 2017 and lasted more than eight months. Another defendant in the case, Dino DeFazio, against whom prosecutors expected Postmus to testify, remained subject to prosecution until all of the charges against him were dismissed in January. Subsequent to the trial held last year, in which Burum, Biane and Kirk were acquitted and the jury considering the charges against Erwin deadlocked on all counts, Postmus sought to vacate his pleas in an effort to himself go before a jury. Judge Smith earlier this week turned down Postmus’ request to withdraw his admission of guilt and go to trial.
In meting out the punishment, the judge preserved into the record Postmus’ guilt on five of the fourteen felony charges he pleaded guilty to, dismissing the other nine as well as the misdemeanor drug conviction.
So ends what then-California Attorney General Jerry Brown, in a February 2010 press conference with San Bernardino County District Attorney Mike Ramos, called “the most appalling corruption case in decades, certainly in the history of San Bernardino County and maybe California itself.”
Brown’s reference was to what has commonly come to be referred to as the “Colonies criminal case.” In addition, prosecutors were focused upon two other criminal matters involving Postmus.
One of those pertained to the abuses of his authority during the slightly more than two years he served as county assessor from January 2007 until his resignation in February 2009. Midway in his second term as supervisor in November 2006, Postmus was elected to the assessor’s post, defeating incumbent assessor Don Williamson in what still stands as the most expensive election in county history. Postmus expended more than $2 million from his electioneering war chest, consisting of donations from various donors, in achieving a 158,571-vote or 52.62 percent to 141,621-vote or 47 percent victory over Williamson, tempered by a 1,144-vote or 0.38 percent showing for write-in candidates.
During the roughly two month window between the November 7, 2006 election and Postmus’ swearing in as assessor in early January 2007, Postmus utilized his position on the board of supervisors to persuade his board colleagues to go along with expanding the staffing at the assessor’s office, including creating a second assistant assessor’s post and a number of other top echelon slots that did not previously exist. Upon acceding to the office of assessor, Postmus then filled the 13 highest ranking billets beneath him with his political associates, cronies, friends and boyfriends, none of whom had any extensive experience in the real estate market nor in appraising properties nor assessing land or other assets for tax purposes.
Many of these hirees were given do-nothing assignments and did little more than collect a paycheck. Some turned up at the office and others did not. Of those who did come to work, most did little or nothing related to the assessor’s office’s function of determining the value of individual parcels within the county to calculate the property tax to be levied upon that land’s legal owners. Rather, most engaged in partisan political activity, promoting Republican causes in general and Republican candidates in particular, using county facilities and equipment to do so.
Among those caught up in the illegal activity within the assessor’s office as it was run under Postmus was Adam Aleman, who had previously worked as a field representative for Postmus when he was supervisor and whom Postmus upon becoming assessor in 2007 had appointed to serve as assistant assessor despite Aleman’s tender age of 23. In 2008, district attorney’s office investigators began a probe of reported misuse of the assessor’s office facilities, equipment and manpower for political purposes unrelated to the legitimate function of the agency. Aleman, who was as or more involved in carrying out political activity within the office than anyone else, quickly fell under the investigators’ scrutiny. In short order they cinched up a case against him and in June 2009, Aleman pleaded guilty to felony vandalism charges relating to his purposeful destruction of the hard drive in a county-issued laptop computer to prevent investigators from accessing it, two counts of theft, destruction, alteration or falsification of a public document, and presenting a false claim to a public board. Secretly, he began cooperating with district attorney’s investigators, including providing information on then-ongoing activity within the assessor’s office and relating what he knew and remembered of activity involving Postmus while he was supervisor.
The second criminal matter pertaining to Postmus was what grew into the Colonies criminal case, otherwise known as the Colonies lawsuit settlement prosecution. This related to the vote he cast in November 2006 during the closing days of his tenure as a member of the board of supervisors to approve the county’s settlement of a lawsuit brought against it by the Colonies Partners in 2002 over the county flood control district’s handling of drainage issues at the Colonies at San Antonio residential and Colonies Crossroads commercial subdivisions in northeast Upland. Postmus had joined with his then-board colleagues Paul Biane and Gary Ovitt to close out that litigation by conferring upon the Colonies Partners a $102 million payout. Prosecutors alleged that one of the Colonies Partners’ managing principals, Jeff Burum, had worked with the one-time president of the San Bernardino County deputy sheriffs’ union, Jim Erwin, to intimidate, threaten and blackmail Postmus and Biane to extort them into supporting the settlement. Prosecutors further maintained that after the county paid the Colonies Partners the $102 million, Burum then provided four separate $100,000 bribes/rewards to Postmus, Biane, Erwin and Ovitt’s chief-of-staff, Mark Kirk, disguising the payoffs as donations to political action committees that were either directly or secretly controlled by the four recipients. The $100,000 delivered to Kirk, prosecutors alleged, was intended as a quid pro quo to him for having induced Ovitt to support the settlement.
The third set of criminal issues involving Postmus pertained to his illicit drug use, which included his possession of a syringe containing liquefied methamphetamine found at his Rancho Cucamonga residence in January 2009 when investigators for the district attorneys’ office served a search warrant there in conjunction with the assessor’s office investigation, as well as an incident relating to his showing up for a court appearance in June 2010 under the influence of methamphetamine, which resulted in his detention and a search of his vehicle in the county courthouse parking lot that turned up more illicit drugs.
In February 2009, a month after the methamphetamine and syringe were found on Postmus’ premises, amid a deafening crescendo of calls for him to do so, Postmus resigned from office. Shortly after Aleman entered his June 2009 guilty plea, based in large measure on information Aleman had provided, Postmus was charged with multiple counts of having improperly used the authority of his office and misappropriation of government funds during his tenure as county assessor.
Some seven months later, Postmus and Erwin in February 2010 were named in a criminal complaint and charged with participating in a conspiracy to illegally obtain $102 million through a scheme that related to the November 2006 lawsuit settlement with the Colonies Partners. In that complaint, five other unnamed, uncharged co-conspirators were described. Though unidentified as to name, there were sufficient details in the complaint to make clear that the five alluded to were Colonies Partners co-managing principals Jeff Burum and Dan Richards, County Supervisor Paul Biane, Supervisor Gary Ovitt’s chief of staff Mark Kirk and public relations consultant Patrick O’Reilly, who had worked for the Colonies Partners.
Both Postmus and Erwin pleaded not guilty to the charges.
In March 2011, however, Postmus, who was represented in the criminal matter relating to the assessor’s office by attorney Stephen Levine and in the Colonies Partners lawsuit settlement criminal case by attorney Richard Farquhar, entered into a plea agreement by which he pleaded guilty to 14 felony charges arising out of the lawsuit settlement and assessor’s office cases and to a single drug possession count, with the proviso that he was to cooperate with prosecutors in providing information, evidence and testimony in making a case against Erwin and the unnamed co-conspirators outlined in the February 2010 complaint and those involved in his misuse of the assessor’s office. Though convictions against Postmus were recorded at that time on all 15 of the charges, it was spelled out that based upon his cooperation, all but three of the 14 felony convictions would be vacated, and the maximum sentence he would receive would be six years and eight months, with the possibility that prosecutors would recommend that he be given straight probation with no actual prison time. Sentencing, ultimately, remained within the discretion of the judge assigned to the case.
The following month, April 2011, Postmus went before a grand jury as a star witness, and in May 2011 that grand jury returned a 29-count indictment which named Burum, Biane, Erwin and Kirk as defendants, the narrative of which revolved around the November 2006 lawsuit settlement and the Colonies Partners’ provision of the separate $100,000 contributions to Biane’s, Erwin’s, Kirk’s and Postmus’ political action committees, which prosecutors characterized as thinly-disguised bribes.
The prosecution team consisted of prosecutors with the San Bernardino County District Attorney’s Office and the California Attorney General’s Office, led by Supervising Deputy District Attorney Lewis Cope and Supervising California Deputy Attorney General Melissa Mandel. They were matched by an impressive array of defense attorneys paid for by a portion of the proceeds from the $102 million settlement. For five-and-a-half years there were a multitude of delays, as the lawyers sparred at the trial court level, twice at the appellate level and twice before the California Supreme Court with regard to the dismissal or reinstatement of charges. Jury selection took place in December 2016 and the case went to trial in January 2017 before Judge Smith. That trial involved two juries, one which weighed the evidence against Burum, Biane and Kirk, and another which was tasked with deciding the fate of Erwin. In court, the proceedings involved 39 witnesses, more than half of whom were on the witness stand for multiple days, and continued for eight months.
Both Postmus and Aleman were central witnesses, with their testimony accounting for nearly all of the court proceedings in May 2017.
During his first three days of testimony under direct examination from May 1 through May 3, 2017, Postmus replicated the key elements of the prosecution’s narrative. In the latter half of 2006, Erwin, working on behalf of Burum and the Colonies Partners, Postmus testified, had threatened to expose elements of both his and Biane’s personal lives, including his own homosexuality and drug use, in an effort to persuade them to support the settlement. And Burum had promised to support him in either or both future political and business endeavors once the settlement was finalized, he said. Moreover, Postmus said, he believed the $102 million paid out to the Colonies Partners was ridiculously more than the development company was due. The threats and promises of reward, he testified, along with the desire to put the whole thing behind him prompted the settlement. And after the settlement was in place, Postmus testified, the Colonies Partners had come through with $100,000 for him in the form of two separate $50,000 donations to political action committees he had control over.
Thereafter, when the defense was given an opportunity to cross examine Postmus, under the withering questioning of one of Burum’s attorneys, Jennifer Keller, Postmus began to go sideways, and he testified that he had been intimidated by the district attorney’s office investigators to meet their expectations of what they needed to make the case against the others. Keller elicited from Postmus his acknowledgment that he was in the throes of methamphetamine addiction at the time of the events in question, rendering his memory unreliable and leaving him vulnerable to manipulation by the prosecution.
Toward the end of Summer 2017, the trial closed out without the defense calling any witnesses and without testimony from the accused, all of whom asserted their Fifth Amendment rights. The jury which heard the case against Burum, Biane and Kirk after less than two full days of deliberation returned verdicts of not guilty against all three on all remaining charges against them that had not already been dismissed by Judge Smith. The other jury deadlocked on all of the remaining charges brought against Jim Erwin. Thereafter, on a motion by the prosecution, the charges against Erwin were dismissed.
In the immediate aftermath of the verdicts, several jurors from both panels were interviewed, with some indicating that Postmus’ hedging of his testimony was a factor in their acquittal votes. Members of the prosecution team expressed consternation with the circumstance, and District Attorney Mike Ramos provided a public statement in explaining why his office had decided against retrying Erwin.
“Since the conclusion of jury deliberations, we have carefully evaluated our current position and have identified witness problems that cannot be resolved,” Ramos said. “As a result, we are unable to proceed. One such issue is the trial testimony of Bill Postmus, who is a necessary witness in the case against Jim Erwin. Bill Postmus’ unexpected testimony on cross-examination at the last trial conflicted with his grand jury testimony, his statement to the FBI, and multiple interviews with the district attorney’s office.”
In October 2017, Postmus came before Judge Smith for a sentencing hearing. During an in-camera, i.e., closed door, conference involving Judge Smith, Postmus, his attorneys Stephen Levine and Richard Farquhar, and at least one member of the prosecution team, Judge Smith gave indication that he was leaning toward sentencing Postmus to a two-year term in state prison. This took Postmus, who had been hopeful that his cooperation with the prosecution would net him no state prison time and either straight probation or a minimal round of incarceration in the county jail, was taken aback by the prospect of going to a state penitentiary. In light of the prosecution’s inability to get a conviction against his one-time co-defendant Erwin and the acquittals of Burum, Biane and Kirk growing out of the same set of facts, Postmus reconsidered the wisdom of his guilty plea, indicating his desire to withdraw it and go to trial. Because Levine and Farquhar had been his attorneys when he entered that plea, they were ineligible to represent him in withdrawing it. Accordingly, Postmus fired both of them and in January 2018 retained attorney Jeffrey Lawrence in his effort to vacate his plea and seek a trial. Lawrence made a motion with the court to withdraw Postmus’ plea. According to Lawrence, Postmus was not in control of his faculties and was under substantial duress when he was criminally charged and then capitulated with the series of no contest pleas. Investigators with the district attorney’s office, Lawrence maintained, took advantage of Postmus’s debilitating drug addiction, using confusion and memory loss brought on by his use of drugs together with coercion, inducements, and threats to convince Mr. Postmus that he had no choice but to plead guilty. The investigators further, Lawrence averred, fed Postmus false information and engaged in misrepresentations to plant in his mind “false memories” and get him to adopt as his own a false narrative of guilt implicating himself, Erwin, Burum, Biane and Kirk. The district attorney’s office investigators, according to Lawrence, used his client’s “drug-induced fear and paranoia to hoodwink Mr. Postmus into believing fiction.” Burum’s, Biane’s and Kirk’s acquittals and the failure to secure a conviction of Erwin illustrate, according to Lawrence’s motion, “the weakness of the evidence” the prosecution was relying upon. Justice dictated, Lawrence asserted, that the matter be reexamined in the light of revelations since the time Postmus entered his guilty pleas.
Moreover, according to Lawrence, Bill Postmus had fallen victim to a vindictive prosecution carried out by the district attorney’s office because Postmus and District Attorney Mike Ramos were in competition for the nomination of the Republican Party to succeed then-Congressman Jerry Lewis, who was nearing the end of his tenure in Congress and was a Ramos ally. Postmus had antagonized Ramos, Lawrence maintained, by having spoken up about the district attorney’s womanizing, in particular a relationship he engaged in with the county’s then-public defender, Doreen Boxer.
Postmus was ill-served by his previous legal representatives, Lawrence argued, who should not have allowed him to proceed with the plea bargain.
Postmus essentially lived up to the terms of his plea arrangement, Lawrence asserted, and was on the brink of being punished for doing so because the district attorney’s office and the California Attorney General’s Office are displeased with the outcome of the prosecution of Burum, Biane, Erwin and Kirk.
That motion came before Judge Smith on Friday November 2, 2018 and the hearing pertaining to it continued on Tuesday November 6, Wednesday November 7, Thursday November 8, Tuesday November 13 and Wednesday November 14, at which point Judge Smith entered his ruling denying it. Testifying on Postmus’ behalf were Postmus, Farquhar, Levine, Postmus’ business partner Dino DeFazio and Postmus’ longtime political associate Paul Russ.
During his testimony on November 13, Postmus said he had informed the San Bernardino Sun that he had seen Ramos and Boxer cavorting during the 2006 county/city conference in Lake Arrowhead.
Under questioning by Judge Smith, Postmus said that during the run-up to the Colonies lawsuit settlement he had been pressured to support the settlement by Erwin, and that the Colonies Partners wanted the settlement in place before he left the board of supervisors because it was not known at that point whether his replacement would provide a third necessary vote to join with those of Biane and Ovitt to accept the settlement.
“Mr. Erwin was threatening he would expose me for my drug use and sexuality if I didn’t get the settlement done in time for me to leave [the board of supervisors to move into the assessor’s post], or something to that effect,” Postmus said. He also told Judge Smith that Jeff Burum had said he would provide him with future support for his political campaigns or in business endeavors if he decided to leave politics but that he would not do so until the Colonies lawsuit had been settled. When Smith suggested that was a bribe overture and that Postmus’ subsequent receipt of the Colonies Partners’ $100,000 donation to his political action committees consummated the bribery, Postmus indicated he “didn’t see it that way,” and did not consider himself to have been bribed.
Both Farquhar and Levine testified that it was Postmus who in 2011 had made the determination to enter into a plea agreement with the prosecutors and that they both had reservations about his doing so. Levine testified that he had told Postmus that moving to the plea option was premature in that there were yet discovery issues that needed to be pursued and legal options yet to be exploited. Farquhar and Levine both indicated that the conviction of Rex Gutierrez, a Rancho Cucamonga councilman whom Postmus had hired as his intergovernmental liaison in the assessor’s office who had been charged with misuse of his office and governmental authority as well as misappropriation of public funds, and Gutierrez being sentenced to two years and eight months in state prison were major factors in Postmus’ decision to enter into the plea arrangement.
On November 14, Judge Smith rendered his decision on Postmus’s motion to withdraw his guilty plea. Before he did so, he heard from Lawrence and the prosecution team, represented by Mandel and Deputy District Attorney Carlo DiCesare. An issue explored was Postmus’ position that he had lived up to his deal to cooperate with the prosecution. Prosecutors, however, maintain that his cooperation with them ended with his testimony under direct examination at the trial for Burum, Biane, Erwin and Kirk and that under cross examination by Burum’s attorney, Jennifer Keller, Postmus actively began supporting the defendants and militating against the prosecution. Postmus did that by adopting whole hog Keller’s suggestion that the district attorney’s investigators had exploited his drug addled state to plant false memories that he subsequently regurgitated in his statements to them, to the grand jury that indicted Erwin, Biane, Kirk and Burum, and then under direct examination at trial. In his testimony before Smith November 2 on the motion to withdraw his plea, Postmus said he had a “moment of clarity” while on the stand under questioning by Keller.
Mandel, however, told Judge Smith that Postmus knew Keller’s version of events was untrue and that in supporting the prosecution on direct examination and then supporting the defense on cross examination he was “hedging his bets” and “trying to have the best of both worlds. Mr. Postmus lied under oath in an intentional, calculated way.” Mandel said that Postmus told three critical lies which deprived the prosecution of achieving the convictions against Burum, Erwin, Biane and Kirk that would have been obtained if he had fully lived up to the terms in his plea bargain. “The first lie came on cross examination when he contradicted his testimony on direct that Mr. Burum’s support was not contingent upon getting the settlement done,” Mandel said. “The second lie was that he was coerced and the DA’s investigators were putting words into his mouth. The third lie was the moment of clarity” he claimed during cross examination by Keller.
Lawrence countered that Mandel’s “argument is disingenuous,” pointing out that given the contradiction in what Postmus said under direct examination and cross examination, prosecutors would say he had “committed perjury one way or the other.” The reality was, Lawrence said, that Postmus had a legitimate epiphany on the witness stand while under Keller’s cross examination. “There was coercion throughout the investigation,” Lawrence said. “Overall, he told the truth.” His client maintained all along that Burum had not bribed him, Lawrence said. “Nothing contradicts that,” Lawrence said. What it came down to, Lawrence said, was that Postmus had the misfortune of being “cross examined by a good attorney [Keller]. Nothing nefarious occurred or has been proven. Mr. Postmus was trying to do what he was asked to do.”
Judge Smith said that “With regard to the issue of cooperation, the court finds the defendant did cooperate with the DA’s investigators throughout the investigation of the case. He was interviewed and gave what appeared to be accurate testimony [before the grand jury]. The second issue is: Did he testify truthfully at trial? The People’s position is he substantially testified truthfully before the grand jury and on direct examination. It was in his cross examination that there is a problem.”
Judge Smith said Postmus stayed relatively faithful to his statements relating to the threats, intimidation, blackmail and extortion he told the investigators he was subjected to by Erwin but that he waffled with regard to having been bribed. Smith said that “I think the people had to accept that at least Mr. Postmus believed that [he was not bribed] to be true,” though Postmus’ understanding of what constituted a bribe was faulty. Judge Smith cited “The argument brought forth by the investigators, who said [to Postmus] ‘You say Jeff Burum promised to support you in either your future campaign or in business if you left politics but not until after the settlement had been taken care of. Then you got it [the settlement] done, and low and behold you got $100,000. Wasn’t that a bribe?’ Mr. Postmus said, ‘I never saw it that way.’ It would be up to the jury to decide whether that was a fulfillment of the earlier promise, but Mr. Postmus did not. The court finds his testimony with regard to the $100,000 not being a bribe was truthful.”
But that did not settle the matter of whether Postmus actually was bribed, Judge Smith said. “Then we get to the issue of whether or not Mr. Burum offered him future support for political office and future support in business if he were to leave politics if he got the settlement done before he left the board of supervisors. Mr. Postmus said, ‘Yes, he made the statement offering future support but there was no contingency.’ Within a ten page span of the transcript and about five minutes later, he says ‘Yes,’ to whether there were conversations about future support and he said ‘Yes, he [Burum] did say that future support is if we got the settlement done.’ After saying that, Mr. Postmus said he did not believe it was a quid pro quo. It wasn’t until the FBI interview and he was asked, ‘Did you and Mr. Burum have that conversation about if you got the settlement done before you left the board that there would be support?’ He said there had been. Then they said, ‘You also said there was no quid pro quo’ and said that if there is a promise of support and if you get something, they believe that is a quid pro quo. Then he said, ‘Maybe I don’t know what a quid pro quo is.’” Postmus had undergone a voluntary interview with the FBI , with Levine present, in October 2012.
Continuing, Judge Smith said, “I am satisfied Mr. Postmus did not at the time consider it to be a quid pro quo or a bribe. If he let it go at that, I would find that his testimony was true, but he went beyond that in his cross examination.” Smith said that Keller started out with getting Postmus to acknowledge his drug use and got him to agree that drugs “mess up your memory. You don’t know what’s true and what’s not true. If you don’t know what’s true you have a tendency to accept just what they are saying. That’s what happened. The DA’s investigators told you what happened and you accepted it as true.”
Judge Smith said, “When you go through the actual transcript in detail, you see that is not what happened.” Smith said that throughout much of the exchange with the investigators Postmus “was minimizing” Burum’s action and “was reluctant to give information” implicating Burum. At a point some two-thirds into the interview, however, Judge Smith said, Postmus showed he “clearly wanted to say something, that there were conversations where Mr. Burum said the support would be coming ‘if and when we got the settlement accomplished before I left the board.’” Moreover, Judge Smith said, outside the confines of the coercive atmosphere of the district attorney investigators’ interrogative techniques, when Postmus was being interviewed by the FBI, “when that very same line of questioning was put to him by the FBI, he told them ‘No, they didn’t coerce me. No, they didn’t put words in my mouth. No, my memory was not impaired.”
Judge Smith said, “It is ironic that Ms. Keller was doing what she accused the district attorney’s office investigators of doing, providing a narrative to Mr. Postmus, and Mr. Postmus adopted that narrative. I can see no way to reconcile that as being a mistake, a slip. It simply is not believable and not reasonable, in the court’s view, that [Postmus truly believed] his statement on cross examination he was so impaired that the DA’s investigators were giving him a narrative and he was so vulnerable and so suggestible that he simply adopted it.” Thus, Judge Smith said, “The court makes a finding that Mr. Postmus made an intentional decision to retract his earlier statement that Mr. Burum had offered future political support and future support in business if Mr. Postmus was successful in getting the settlement accomplished before he left the board. The explanation that he had an epiphany and moment of clarity where he realized his prior statements grew out of his lack of memory and drug impairment is not true and is simply not believable or reasonable. The court finds that testimony was intentionally false.”
Smith said the suggestion that Postmus was at the mercy of the investigators and dominated by them is belied by multiple examples of Postmus contradicting their statement and suggestions throughout their interrogations of him.
On Wednesday, Smith denied Postmus motion to withdraw his 2011 guilty plea.
The proceedings late Wednesday and on Thursday then moved on to the consideration of Postmus’ sentence. Lawrence brought in character witnesses – Postmus’ former lawyer Steve Levine, and his longtime political associate and current Hesperia City Councilman Paul Russ. Both of those witnesses, however, may have wreaked more damage to Postmus than they rendered him assistance.
Levine softened no soap with Judge Smith when he offered his view that the entire Colonies criminal case, including the prosecutions of Postmus, Erwin, Kirk, Biane and Burum, had proven out as “much ado about nothing.” From the tenor of Judge Smith’s analysis of the interaction between Erwin and Postmus and between Burum and Postmus, not to mention that Judge Smith had devoted more than eight months of his life and professional career to overseeing a court trial pertaining to the case, it was clear Judge Smith considered the matter to be a weighty one.
Russ told of how he had waged several tough medical battles throughout his life, including getting a kidney transplant as a young man; then in 2004 contracting lymphatic cancer which through treatment went into remission; then learning last year that he had liver cancer and that his kidney was failing before sojourning to New Orleans to undergo a dual liver and kidney transplant. Postmus, whom Russ had met in 1994 when both were involved in supporting Republican candidates, had been caring and supportive throughout both of his bouts with cancer, Russ said. During his latest health challenge, Russ testified that Postmus offered him encouragement and called him daily while he was in New Orleans.
Russ, nevertheless, may have inadvertently added even further to Postmus’ credibility problem with Judge Smith regarding his claimed “moment of clarity” on the witness stand under cross examination by Keller. Russ indicated that prior to testifying in the court case, Postmus had indicated to him he was already highly conscious of the contradiction between the district attorney’s office’s narrative of events and the defense’s contentions about what Postmus had testified to before the grand jury. “He talked to me about how he was in a dilemma, between a rock and a hard spot,” Russ said. “He said if he told the truth, he would be in trouble with the prosecution but if he kept with his testimony, he’d be able to go home free.”
Lawrence also put Postmus on the witness stand once again, giving him an opportunity to relate how he has overcome the grip that methamphetamine once had on him, and has been off drugs entirely and consistently for more than six years. He has also become, through a sober living network, a sponsor to four other men who are struggling to put their abuse of drugs behind them, Postmus testified.
Postmus’ presence on the witness stand, however, gave Mandel another opportunity to aggressively question him.
Mandel asked him if he believed his use of drugs is what caused him to violate the public trust as both a supervisor and county assessor. Postmus said he believed that if he had not been under the influence of drugs, things would have gone differently.
“Did you take a bribe from Mr. Burum?” she asked
“No, ma’am,” he responded.
“Did you steal from the people of the county?”
He acknowledged that he had used his county issued credit card when he was assessor to purchase gasoline when he was on a trip to Colorado.
In her summation, Mandel told Judge Smith “The people recommend a sentence of no less than five years.”
She noted that Postmus had been charged with conspiring with Erwin, Biane, Kirk and Burum in the Colonies case and that it “appeared he was rendering a benefit to his co-conspirators by his false testimony.” Postmus had subjected the county’s lawyers who were representing it during the litigation with the Colonies partners to abuse and retaliation and had done likewise to those county employees who had come forward to expose the misuse in the assessor’s office when he headed it. “He threatened to destroy their careers if they attempted to expose corruption,” Mandel said. “He was as an aggressive and obnoxious bully who destroyed those who tried to protect the taxpayers from his illegal activity. He took advantage of his position of trust and confidence. He claimed he was a pawn in the game of the prosecution who was bullied by investigators and that he was only prosecuted to get bigger fish. That was a side show. The narrative that the investigators were only interested in big fish has enabled the defendant to continue to rationalize his conduct.”
Mandel then turned from addressing Judge Smith and walked to just behind Postmus, addressing him directly. Gesturing at him, she fairly thundered, “You are the big fish. You had a high duty and you used it to wreak havoc on the citizens of this county.”
Mandel then referenced that element of Postmus’ admission that he had been victimized by Erwin who had extorted him into supporting the Colonies lawsuit settlement. Those such as Burum and others corrupting county officials would not be enabled to compromise government if it were not for corruptible and self-serving public officials such as Postmus, she indicated. “They can’t buy an official act if it isn’t for sale,” she said.
Postmus, she said, is not truly remorseful. “He took no responsibility,” she said. “He continues to try to claim he did not take a bribe. He only takes responsibility for the first time he took drugs. He says, ‘I didn’t do it, but if I did, the drugs made me do it. His unwillingness to accept this is based on his belief that all of this wasn’t illegal. He was so deeply immersed in a culture of corruption he had no view of what is right and wrong.”
Mandel said it was undeniable that Postmus had engaged in a quid pro quo and she scathingly referenced Lawrence’s rhetorical question, “What’s the big deal? Everyone knew he was running the PAC [political action committee].” The big deal, Mandel said, is that “He was a public official who is supposed to be transparent about his public activities. This PAC was done solely to conceal the source of the funds. He gave away millions of dollars for personal gain.”
Judge Smith said that he had taken into careful consideration all of the factors in mitigation and aggravation with regard to Postmus’ activity.
“If only the charges Mr. Postmus were facing on sentencing were those of bribery related to the Colonies settlement, I think I would be hardpressed to sentence Mr. Postmus to prison because a prison sentence would not be appropriate for those offenses since the court has to make acknowledgment of the fact that two separate juries rejected the premise that the settlement was the result of bribery,” Judge Smith said. “The retraction of Mr. Postmus’ earlier statement was not the sole reason for the verdict or perhaps even the largest factor, but it was a significant factor in those verdicts. If that were the only count it would be difficult and unfair for this court to have Mr. Postmus take the fall for everyone and go to prison. I would be reluctant to do that. That would not be fair.”
Judge Smith continued, “Unfortunately for Mr. Postmus, those are not the only charges he is facing.” Smith offered the view that the assessor’s case represented a “seriousness of circumstance and crime. Mr. Postmus was an elected official. He is a fiduciary of public funds. Public funds are not some vague entity. These are citizens’ tax dollars. As an elected official and department head he had a fiduciary duty to protect those public funds so they are not only not wasted but not utilized for improper purposes. He violated that public trust and he violated his fiduciary duty with regard to public funds. As discussed here in these proceedings, the allegations with regard to Mr. Postmus’ conduct within the assessor’s case is significantly greater than the allegations that involved people such as Mr. Gutierrez, and you have to look at the circumstances surrounding that. When he became assessor, he wasn’t someone off the streets who had no political contacts. He came into office having been chairman of the board of supervisors. He had significant contacts. He used that political influence to create positions that were funded by tax dollars. If those positions were needed in the assessor’s office and were filled by people doing the job and making the office more efficient, then he was doing his job. On the other hand, if those new positions were created to appoint friends and cronies and do favors for people associated with the board of supervisors who had previously made offers of support to him and he received that support, that casts those positions in a different light. Mr. Gutierrez was appointed as a favor to Mr. Burum. Mr. Gutierrez received money for his work and while there he didn’t do any work for the assessor’s office. He used that position  to conduct politics and as an additional source of income. A jury found those allegations true and found Mr. Gutierrez guilty. The trial judge determined that Mr. Gutierrez had no other criminal record. But the circumstances of taking that position and taking those public funds and not doing the public’s work was so egregious that the trial judge imposed a sentence of 2 years and 8 months in state prison. That caused some concern for Mr. Postmus. Mr. Postmus was responsible for appointing Mr. Gutierrez. Mr. Gutierrez’s was not the only position within the assessor’s office subject to those same allegations. There was Mr. [Greg] Eyler, who had a relationship with Mr. Postmus. The allegation was that Mr. Eyler received a public position and was paid for being in that public position with taxpayer money but was doing little work. These were not isolated incidents. Mr. Postmus was hiring political cronies and expending public funds and there was no commensurate work done in the assessor’s office for those public funds.”
Judge Smith said he took into account Lawrence’s assertion that what Postmus had become involved in was “due to unusual circumstances” that are now “unlikely to occur, as the unusual circumstance was the threat from Mr. Erwin in the Colonies case, and Mr. Postmus is no longer in office. Certainly it is true that he is no longer in office means those circumstances cannot reoccur. But it doesn’t change the fact that it was an intentional decision by Mr. Postmus and it was an ongoing decision. An additional fact for the court to consider is whether there was sophisticated criminal planning. With regard to the assessor’s office, I think there was some sophistication in the planning. That scheme was developed first requiring the creation of new positions, getting the board of supervisors to fund those positions and then filling those positions with friends, political cronies or as favors to others. There was sophistication and it was on an ongoing basis.”
For the several reasons he enumerated, Judge Smith said, a sentence of probation would not be appropriate.
With regard to the the Colonies case, Smith sentenced Postmus to two years in prison for conflict of interest and three years for conspiracy to commit bribery, as well as for three years for misappropriation of funds. In meting out punishment for Posmus’ involvement in the assessor’s case, Smith sentenced Postmus to three years in prison for misappropriation of public funds and another three years for perjury. The two year sentence for conflict of interest was inapplicable, since it rose out of the same set of acts involved in one of the other acts for which he was convicted and sentenced. Smith called for all of the three-year sentences he handed down to be served concurrently, so that Postmus’ actual sentence does not equal 12 years but three years. With good behavior, he will be eligible for release at the halfway point of his three year term, or in 18 months. Smith further credited him with two days served and one day of good behavior, which will shorten his upcoming time in incarceration by three days.
Smith reduced all of Postmus’ drug charges to misdemeanors, and then dismissed them in total, pursuant to Proposition 47, the 2014 law that reduced many nonviolent drug and property felony offenses to misdemeanors, making drug law offenders candidates for probation.
Upon Lawrence’s request, Smith granted Postmus a short stay to put his affairs in order, requiring that Postmus present himself for incarceration in Smith’s courtroom S-21 on the sixth floor of the San Bernardino Justice Center at 8:30 a.m. November 30.
Lawrence gave indication he will file an appeal of Smith’s ruling on both the denial of the plea withdrawal and the sentence.
–Mark Gutglueck