A select group of prosecutors will not be able to spend a leisurely Christmas and New Year’s holiday over the coming weeks and must instead burn the midnight oil working on a response to writs of mandate filed with the state appellate court by three of the four defendants in the Colonies Settlement political corruption case.
Lawyers for Jeff Burum, Jim Erwin and Mark Kirk filed motions to have all or major portions of the cases filed against them dismissed.
On December 9, the Fourth District Court of Appeal, Division Two agreed to have a three judge panel hear the motions and gave the state attorney general’s office and the San Bernardino County district attorney’s office, which are jointly prosecuting the case, 25 days “to show cause before this court why relief prayed for should not be granted. Petitioner shall have 15 days thereafter to file a traverse.”
In May, Burum, Erwin and Kirk, along with former county supervisor Paul Biane, were named in a 29-count indictment charging them with conspiracy, bribery and extortion related to what prosecutors allege was an effort to improperly settle for a $102 million payout a lawsuit Burum’s company, Colonies Partners, had brought against the county over flood control issues at its development project in northeast Upland. In November 2006, Biane, supervisor Gary Ovitt and then-supervisor Bill Postmus voted to approve that settlement in a 3-2 vote opposed by then-supervisor Dennis Hansberger and supervisor Josie Gonzales.
Postmus, who along with Erwin was previously charged with conspiracy and bribery in conjunction with his vote on the $102 million settlement, in March pleaded guilty to soliciting and receiving bribes, conspiracy and conflict of interest, and agreed to turn state’s evidence. In April, he was the star witness before the grand jury that indicted Biane, Burum, Erwin and Kirk.
Prosecutors allege that Burum, together with Erwin, who was once the president of the county’s sheriff’s deputies’ union and was then working as a consultant to the Colonies Partners, prior to the November 2006 vote threatened to carry out an informational campaign involving mailers revealing Postmus’ homosexuality and use of illegal drugs and Biane’s financial insolvency, but ultimately refrained from the distribution of the information. These “threatening, menacing, commanding or coercing” acts, constituted extortion, the prosecution alleges. After the vote, Burum provided two political action committees controlled by Postmus with separate $50,000 checks, a political action committee controlled by Erwin with a $100,000 check, a political action committee created by Kirk with a $100,000 check, and a political action committee founded by Biane’s chief-of-staff Matt Brown, but which prosecutors claim was secretly controlled by Biane, with a check for $100,000. Those checks constituted bribes, prosecutors maintain. Prosecutors allege that Kirk influenced Ovitt’s vote. Kirk at that time was Ovitt’s chief of staff.
Lawyers for the four defendants filed demurrers on their clients’ behalf in August, asserting that the indictment is flawed on multiple legal grounds, overdrawn and misapplied. Judge Brian McCarville, who heard the demurrers, ruled that some of the charges should indeed be dismissed, finding that five of the charges against Burum should be thrown out and that one count against each of the other three pertaining to violating Penal Code Section 424, which relates to misappropriation of public funds, should also be dismissed.
The state attorney general’s office, represented by deputy attorney general Melissa Mandel, and the district attorney’s office, represented by deputy district attorneys Cameron Page and Lewis Cope, appealed McCarville’s ruling to the appellate court.
By temporarily removing the matter to the appellate court prosecutors gave defense attorneys an opportunity to further attack the sufficiency of the charges lodged against their clients. Burum’s attorney Stephen Larson, Kirk’s attorneys Paul Grech and Chad Firetag, and Erwin’s attorney Rajan Maline did just that, filing the writs of mandate. Only rarely does the appellate court entertain such writs, and in the vast majority of cases, a court clerk summarily rejects them by sending back what is known as a postcard denial. In the case of the writs of mandate filed by Larson, Grech/Firetag, and Maline, the court agreed to hear them.
In his motion and brief, Larson maintains there are grounds to dismiss all of the charges against Burum. Similarly, Grech and Firetag want the entire case against Kirk dropped. Maline is requesting that the six charges against Erwin pertaining to bribery, extortion and conspiracy be dismissed. In addition, Erwin is charged with income tax evasion stemming from the bribery counts and having failed to properly disclose on governmental reporting documents all of his sources of income, in particular the gift of a watch and airline fare and lodging accommodations provided to him by Burum. If the appellate court grants a dismissal of the extortion, bribery and conspiracy counts against Erwin based on the writ of mandate, Maline intends to use that dismissal to have the tax evasion charges quashed. He would then seek to have the income reporting violations, which are being prosecuted as felonies, addressed as allegations of violations of the California Political Reform Act that are more properly dealt with not as felonies but infractions to be adjudicated by the California Fair Political Practices Commission.
Biane’s attorney, David Goldstein, did not file a writ of mandate on his client’s behalf. Biane is the only one of the four defendants who was an elected official.
Efforts to obtain comment from Mandel, Page or Cope by press time were not successful.