A collection of one-time criminal defendants who have now seized the initiative and become civil plaintiffs against San Bernardino County and its district attorney’s office over having been put them through the ordeal of being prosecuted recently turned what might prove a crucial corner in making a demonstration that former District Attorney Mike Ramos and the prosecutors and investigators working for and in conjunction with him were not abiding by the Marquis of Queensbury rules while proceeding against them.
U.S. District Judge Jesus G. Bernal  reaffirmed an order by U.S. Magistrate Judge Shashi H. Kewalramani that the county and the district attorney’s office release documents relating to the failed effort to prosecute three former high ranking county officials and a prominent developer on a slew of public corruption charges.
Bernal’s order came last week, nearly two months after Kewalramani on May 1 entered a discovery order in the case calling for the release of hundreds of documents consisting of communication between personnel within the district attorney’s office as well as county prosecutors’ exchanges with state and federal law enforcement officials including the FBI, the U.S. Attorney’s Office, the California Attorney General’s Office and county officials. Those emails, text messages, letters and missives relate to the circumstances of the county’s dispute with the developers of the Colonies at San Antonio and the Colonies Crossroads residential and commercial subdivisions in Upland and the investigation into graft allegations relating to a $102 million settlement of a lawsuit brought by the Colonies Partners development consortium against the county relating to those projects.
In May 2011, former San Bernardino County Supervisor Paul Biane; Mark Kirk, who was the chief of staff to former supervisor Gary Ovitt; and Jim Erwin, the one-time president of the union representing the county’s sheriff’s deputies who also served a short stint as assistant county assessor, were indicted along with Jeff Burum, one of the managing principals in the Colonies Partners. Burum was charged with working in conjunction with Erwin to bribe Biane and Kirk in connection with achieving, in November 2006, the settlement of a lawsuit filed by the Colonies Partners against the county in 2002.
The charges were an outgrowth of the personal and political implosion of Bill Postmus, who a decade-and-a-half ago was the chairman of the board of supervisors and simultaneously serving as the chairman of the San Bernardino County Republican Central Committee. From those dual perches, Postmus, who had meteorically vaulted to the pinnacle of governmental power and influence in San Bernardino County in 2000 by representing himself as a rock-ribbed conservative Christian-and-family-values Republican, in 2006 successfully vied for county assessor, the primary taxing authority in the county. By 2009 he had crashed to earth in a cascade of scandals in which he was exposed as a drug-addicted homosexual who had installed more than a dozen of his boyfriends/“political associates” into high-paying nonproductive positions in the assessor’s office. As a consequence, Postmus was induced to resign, and he and some of his employees were charged with and prosecuted for misusing the assessor’s office for partisan political purposes. Ultimately, Postmus and his associates and boyfriends would be convicted or pleaded guilty to those charges.
In March 2011, Postmus entered into a plea arrangement in which he acknowledged guilt to one misdemeanor drug count and 14 felony charges relating to political corruption, including conspiracy, bribery, misappropriation of public funds, conflict of interest, fraud and perjury. He turned state’s evidence and the following month served as the star witness before the grand jury that in May 2011 returned the 29-count indictment of Burum, Biane, Kirk and Erwin.
In the indictment, prosecutors cataloged their allegations that prior to the November 2006 vote to approve the $102 million settlement, Erwin and Burum had bullied Postmus and Biane with threats to expose their personal vulnerabilities, including Postmus’s drug use and homosexuality and Biane’s financial difficulties. Prosecutors alleged that Burum and Erwin thus successfully blackmailed Postmus and Biane into supporting the settlement and then provided them both $100,000 each in kickbacks after the settlement was ratified, and that those bribes had been hidden, or laundered, in the form of political donations. Similarly, the indictment described $100,000 provided to Kirk’s political action committee as a kickback to reward him for helping convince his boss, Supervisor Gary Ovitt, to support the $102 million settlement. Erwin was also given $100,000 in the form of a donation to a political action committee he had set up, and prosecutors said that was a reward to him for having assisted the Colonies Partners and Burum in effectuating the settlement.
The eight month-duration criminal trial before two juries in 2017 included testimony by Postmus in May of that year. In his testimony under direct examination, Postmus replicated the key elements of the prosecution’s narrative, including recounting threats made by Erwin, working on behalf of Burum and the Colonies Partners, to expose elements of both his and Biane’s personal lives in an effort to persuade them to support the settlement, Burum’s promise to support him in either or both future political and business endeavors once the settlement was finalized, and that after the settlement was in place 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, however, when the defense was given an opportunity to cross examine Postmus, under the withering questioning of one of Burum’s attorneys, Jennifer Keller, Postmus went 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. Postmus acknowledged 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.
The trial closed out without the defense calling any witnesses and without testimony from the accused, all of whom stood on their Fifth Amendment rights. The jury which heard the case against Burum, Biane and Kirk returned verdicts of not guilty against all three on all charges against them that had not been earlier dismissed after less than two full days of deliberation. The other jury deadlocked on all of the charges brought against Jim Erwin. Thereafter, on a motion by the prosecution, the charges against Erwin were dismissed.
On March 1, 2018 the Colonies Partners filed a civil rights lawsuit in Riverside Federal Court against San Bernardino County District Attorney Mike Ramos and former state attorneys general Jerry Brown and Kamala Harris, other members of the prosecution team and witnesses involved in the case. That suit, which seeks $80 million in damages, alleges both prosecutors and investigators in the criminal case disregarded or hid evidence vindicating the defendants and furthermore “fabricated evidence to prop up their case.”
On April 2, 2018 Burum followed up with a $50 million malicious prosecution lawsuit in federal court against San Bernardino County, now former District Attorney Mike Ramos and former state attorneys general Kamala Harris and Jerry Brown, prosecutors Lewis Cope and Melissa Mandel, former Assistant District Attorney Jim Hackleman, district attorney’s office investigators Robert Schreiber and Hollis Randles, and County Supervisor Josie Gonzales, asserting overzealousness and retaliatory motives on the part of prosecutors, who, he claimed, used fabricated evidence in accusing him of involvement in an extortion and bribery conspiracy relating to the $102 million settlement.
At issue in both the suits brought by the Colonies Partners and Burum is that in entering into the settlement agreement in late 2006 and the working out of those arrangements in the months thereafter, the county agreed to indemnify the Colonies Partners over any legal challenges relating to the settlement that might arise and that the county also carried out a validation proceeding through the courts in which the public at large was invited to challenge the settlement, after which, the Colonies Partners claim, the settlement was locked in and could not be overturned for any reason. Part of the damages the company and Burum are seeking, aside from the assertion that no criminal prosecution should have taken place at all, are based upon their claims that the county should have paid for Burum’s legal defense in keeping with the indemnification agreement.
Charles E. Slyngstad, the lead attorney representing the county, in court papers filed with the U.S. Federal Court in Riverside on March 26 and in subsequent statements, has said neither the Colonies Partners nor Burum have a basis for the legal action they have brought.
In June 2018 Erwin filed a $25 million federal lawsuit against prosecutors and the county, alleging an “illegal campaign of retaliation, intimidation, and harassment.”
In July 2018, Kirk, represented by Peter Scalisi, the defense attorney who represented Kirk during the criminal trial in which he was acquitted, filed a $40 million suit naming the County of San Bernardino, Ramos, Mandel, Cope, Randles, former District Attorney’s Office Investigator Robert Schreiber, prosecution witness Adam Aleman, Supervisor Josie Gonzales, then-Governor and former Attorney General Brown, and former Supervising Deputy California Attorney General Gary Schons as defendants.
Records show that in February 2018 Biane filed a malicious prosecution claim against the county and state, seeking more than $10 million in damages.
According to the county’s attorneys, the plaintiffs have no grounds for proceeding against the county, as they were arrested and charged in accordance with information available indicating that crimes had been committed and that those charged were responsible for those crimes, multiple judges found the search warrants and arrest warrants issued with regard to the case were supported by adequate probable cause and in extensive pretrial litigation judges Brian McCarville and Michael A. Smith upheld the validity of the charges as stated and allowed the matter to proceed to trial. All of the defendants and now plaintiffs were given their day in court, the county maintains.
Neither the Colonies Partners nor by extension Burum, Erwin, Biane and Kirk can “establish that [they have] been deprived of a constitutional or statutory right,” Charles E. Slyngstad of the law firm Burke, Williams & Sorensen, the lead attorney representing the county, stated in court papers filed with the U.S. Federal Court in Riverside.
Despite the exonerations, Slyngstad maintains the prosecution, composed of members of both the San Bernardino County District Attorney’s Office and the California Attorney General’s Office, was justified in pursuing a criminal case against Burum, Biane and Kirk.  “The fact that Mr. Burum and others were found not guilty is not a vindication of their conduct and does not make the county and the [county flood control] district responsible for the cost of a criminal defense or other costs allegedly paid for by Colonies Partners,” Slyngstad stated publicly. Slyngstad pointed out that Erwin was not acquitted.
According to the Colonies Partners’ lawsuit, the prosecutors and their investigators “refused to accept Mr. Postmus’s repeated denials of a corrupt quid pro quo agreement to exchange his vote for the 2007 campaign contributions. Mr. Postmus explicitly and repeatedly denied that he had ever accepted a bribe in exchange for his pro-settlement vote. Defendants refused to accept this truth because it did not further their retribution campaign against [the] Colonies [Partners]. So, over the course of several interviews, defendants Randles and Schreiber, supervised by defendants Ramos, Cope, Hackleman, Harris, Mandel, and/or Schons convinced Mr. Postmus that he had committed various felony offenses related to the settlement, and coerced him into pleading guilty and testifying to those supposed offenses before the indicting grand jury.”
In the county’s answer to the lawsuit brought by the Colonies Partners, Slyngstad wrote, “Defendants deny the allegations.” In fact, according to the county, Postmus acknowledged the quid pro quos and bribery when he entered guilty pleas to 14 felony political corruption counts in March 2011, several of which involved Burum, Biane, Erwin and Kirk.
Similarly, Slyngstad also dismissed the lawsuit’s allegation that district attorney’s office investigators Schreiber and Randles “planted smaller deceptions for the purpose of manipulating Mr. Postmus into telling larger lies. Mr. Postmus later recognized and admitted that his contradictory and nonsensical ‘memories’ of these events had been planted by an unscrupulous and coercive prosecution team.”
“Defendants deny the allegations,” Slyngstad wrote.
The county has dismissed the suggestion in the lawsuit that the county engaged in breach of contract by not funding Burum’s legal defense in the face of the criminal charges lodged against him.
According to the lawsuit, “in their zeal to exact this punishment, defendants county and [the county flood control] district ignored their contractual obligations under the settlement agreement, as fulfilling them would have undermined the multi-pronged strategy of retaliation. The county and district were undoubtedly thrilled that [the] Colonies [Partners] was being forced to spend millions of dollars defending itself from the bogus investigation and prosecution, which various county and district employees vigorously encouraged and assisted. Defendants county and district thus breached the settlement agreement and violated the covenant of good faith and fair dealing by failing to defend and indemnify [the] Colonies [Partners] in two subsequent legal actions, failing to defend the validity of the settlement agreement, and assisting the San Bernardino County District Attorney’s Office and California Attorney General’s Office in their efforts to invalidate the settlement agreement through the criminal prosecution of Mr. Burum.”
According to Slyngstad, however, any governmental contract tainted by a conflict of interest is rendered null and void and is not enforceable. California Government Code Section 1090 applies to conflicts of interest involving public officials. Thus, Postmus’ guilty plea to a violation of Government Code Section 1090 as pertained to his approval of the $102 million lawsuit settlement excused the county from having to abide by its indemnity guarantee, Slyngstand maintained.
“Plaintiff is not entitled to indemnity and/or defense for any matters that relate to plaintiff’s and/or its agents’, confederates’, or alleged indemnitees’ actions in violation of Government Code Section 1090 and other provisions of California law pertaining to conflicts of interest,” the answer reads. “Defendants allege that they have fully performed all terms, conditions and obligations that were theirs to perform under the agreement that is the subject of those claims. [W]ithout admitting that defendants engaged in any of the acts or conduct attributed to them in the complaint, any breach of the agreement sued upon was excused by plaintiff’s prior breach.”
Slyngstad publicly stated, “The county and the district deny they are liable to [the] Colonies [Partners] in any amount whatsoever.”
As the suits have been consolidated and are proceeded toward trial, the plaintiffs have pursued discovery, a process by which both sides, plaintiffs and defendants, are obliged to reveal to the opposing side information in their respective possession relevant to the matter being litigated and are subject to depositions, that is, questioning of plaintiffs, defendants and witnesses under oath. At some point in the discovery process, an attorney with the county who had access to a wide cross section of county material relating to ongoing litigation approached the attorneys for the plaintiffs and in a sub rosa arrangement provided what was described to the Sentinel as in excess of 300 separate documents. Burke, Williams & Sorensen had made several assertions during the discovery process which were credibly contradicted when county documents were marshaled that contained communications and information at a factual variance with positions the county had taken during ongoing litigation. Included in a batch of documents examined by Bernal, the Sentinel is informed,  were communications in which county officials openly discussed what appeared to be suborning perjury. In another, county officials make reference to withholding evidence from the defense in a criminal case. In one communication, a former high ranking county official discussed employing physical violence against a former federal judge.
The Sentinel is informed that the office of county counsel had the materials in question in a file, which had not been turned over to Burke, Williams & Sorensen. Lawyers with Burke, Williams & Sorensen during the course of litigation made repeated representations based on the incomplete information at their disposal, and were ultimately blindsided because County Counsel Michelle Blakemore had not passed the more complete record along to Burke, Williams & Sorensen because she had banked on the documentation never seeing the light of day.
Kewalramani, who was provided with information to indicate that even after the August 2017 acquittals of Burum, Biane and Kirk and the September 2017 hung jury in the case against Erwin, the district attorney’s office, at the direction of then-District Attorney Mike Ramos, was casting about for a way in which to perpetuate the criminal case against Burum. One element of such a case, which never came to fruition, had been to ascertain if Burum, who had suspended making any form of political contributions at the time of his 2011 indictment, could be criminally charged with resuming that political activity. It is of some note that Burum, the Colonies Partners and the other defendants in the failed criminal case emerged in 2018 as the major backers of Jason Anderson, who vied against Mike Ramos in the latter’s fourth re-elective effort following his 2002 election as district attorney. They supported Anderson both through direct donations to his campaign as well as by endowing an independent expenditure committee that was devoted in the main to removing Ramos from office and promoting Anderson.
The Anderson campaign spent $259,055.70.
Pierre Biane, Paul Biane’s father, donated $2,750 to Anderson’s electoral effort, and the entity known as Biane Family Properties chipped in another $250.
John Bunkers, one of the Colonies Partners, donated $4,400 to Anderson. Andrew Wright, another of the Colonies Partners, ponied up $5,500. The Andrew Wright Living Trust gave Anderson another $3,000 One of Burum’s many development entities provided $2,000.
Burum donated $4,400 to Anderson, and Burum’s wife, Kelly, donated another $4,400. Burum’s brother donated $1,000 to Anderson’s electioneering fund and Burum’s sister-in-law donated $500. Ray Crebs, one of the Colonies Partners, donated $100. Stephen Larson, Burum’s attorney, and Larson’s father provided Anderson with $8,800.  Mark McDonald, Paul Biane’s attorney, gave Anderson $1,000.  Rajan Maline, Erwin’s attorney, threw another $1,000 toward Anderson’s electoral effort.
Chris Leggio, one of Burum’s closest friends, and Leggio’s wife put up $7,700 toward getting Anderson into office.  James Sheridan, another close Burum associate, tossed in $500.
Jeff Burum provided $135,550 to an independent expenditure committee, Business Owners For Fair and Ethical Government, which was devoted in large measure to supporting Anderson and opposing Ramos. Burum’s wife, Kelly, handed another $135,550 over to Business Owners For Fair And Ethical Government. Chris Leggio and his wife provided the committee another $32,500. Andrew Wright endowed Business Owners For Fair And Ethical Government with $30,000.
Mark Kirk was a principal officer in Business Leaders For Fair And Ethical Government.  Jim Erwin was another of the committee’s officers.
Anderson was Ramos’ only challenger in 2018, and in the contest held on June 5, corresponding with the 2018 California Primary, Anderson outpolled Ramos 128,127 votes or 52.16 percent to 117,501 votes or 47.84 percent.
Based on the substance of the internal district attorney’s office communications,  Kewalramani took exception to the characterization of the political support vectored toward Anderson as criminal activity.
U.S. District Judge Jesus G. Bernal concurred in that conclusion. In a number of cases over the last several decades federal courts have held that monetary support provided to political candidates are tantamount to free speech. The county’s difficulties were compounded by misrepresentations made earlier in the process by its legal representatives, when County Counsel Michelle Blakemore, Slyngstad and other lawyers with Burke, Williams and Sorensen were unaware of the district attorney’s office’s internal communications having fallen into the hands of the plaintiff’s legal teams.
Slyngstad had asserted that Kewalramani’s had based his order “on clearly erroneous factual findings.” Bernal came to the diametrically opposite conclusion, and cited “credible allegations” and “evidence,” which he said supported the motion to compel the disgorging of the documents.
Bernal granted the Colonies Partners’ motion to recover the fees it expended in contesting the appeal of Kewalramani’s order, to be quantified by the Colonies Partners’ submission, by July 8, of a declaration or a showing of legal billings for the work.
“The former DA has long demonstrated a clear bias against Jeff Burum and the other plaintiffs in this lawsuit,” Burum’s attorney, Stephen Larson said. “I am confident that these documents will continue to demonstrate the pattern of deceit, fraud, and misconduct by county officials that has already been revealed, all of which will only further strengthen our case.”
-Mark Gutglueck