(December 28)   The pre-trial jousting between prosecutors and defense attorneys in the celebrated Colonies Settlement Corruption Case has been extended for at least one more round with prosecutors’ appeal to the California Supreme Court of an appellate court’s October ruling that on balance favored the defendants.
At issue is whether bribery counts against the land developer at the center of the case will be reinstated. Those bribery charges are considered the linchpin of the case against all four remaining defendants.
The Colonies Settlement Political Corruption Case grew out of the November 26, 2006 3-2 vote of the San Bernardino County Board of Supervisors as it was then composed to approve a $102 million settlement of the civil action brought against the county and its flood control division by the Colonies Partners over drainage issues at the Colonies at San Antonio residential and Colonies Crossroads commercial subdivisions in northeast Upland.
Prosecutors allege that earlier in 2006 Jeff Burum, who with Dan Richards was one of the two managing principals of the Colonies Partners, conspired with former sheriff’s deputies’ union president Jim Erwin to blackmail two of the then-members of the board of supervisors, Bill Postmus and Paul Biane, by threatening to reveal in mailers to be sent to voters the former’s homosexuality and drug use and the latter’s insolvency. After the November 2006 vote in which Postmus and Biane joined with their board colleague Gary Ovitt to approve the settlement, prosecutors maintain Burum during the first six months of 2007 delivered four separate $100,000 bribes to Postmus, Biane, Erwin and Ovitt’s chief-of-staff, Mark Kirk, in the form of political donations to political action committees the four had founded or controlled.
Postmus and Erwin were indicted on bribery and extortion counts relating to this alleged scheme in February 2010. After Postmus in March 2011 entered guilty pleas on 14 felony counts contained in that first indictment, he appeared as the star witness before a newly impaneled grand jury that heard a total of 45 witnesses in April 2011. The following month that grand jury handed down a superseding 29-count indictment naming Burum, Erwin, Biane and Kirk, who were charged variously with conspiracy to commit a crime, bribery, conflict of interest, tax fraud, tax evasion, perjury, forgery, and aiding and abetting.
In August 2011, after demurrers were filed on behalf of Burum, Erwin, Kirk and Biane by their lawyers, Judge Brian McCarville granted some but not all of those defense requests to throw out charges based on their  insufficiency or lack of clarity, dismissing five of the counts lodged against Burum, two of the counts Biane faced, two of the counts Erwin was charged with and one count pending against Kirk.
The prosecution then appealed McCarville’s ruling to the appellate court to have the charges reinstated. Defense attorneys likewise filed petitions with the appellate court, arguing that all charges that had been tossed should have been dismissed and asserting that McCarville should have sustained more of the demurrers than he actually did.
After nearly a year of consideration, the 4th District Court of Appeal on October 31, 2012 in a 41-page decision written by Justice Art W. McKinster and joined by associate justices Betty Ann Richli and Douglas P. Miller, upheld McCarville’s dismissal of part of a conspiracy charge plus four other counts against Burum, and tossed out a conflict of interest charge against Burum. At the same time, the appellate justices restored some elements of the conspiracy charge along with an aiding and abetting charge against Burum.
In the case of Erwin, the appellate judges dismissed three charges against Erwin that included engaging in a conflict of interest and that he aided and abetted Biane in his reception of a bribe. The court restored one charge against Erwin, that of misappropriating public funds. It upheld McCarville’s denial of a bid to dismiss the conspiracy and two other charges.
For Kirk, the judges denied his request to throw out two charges pertaining to conspiring with Burum and misappropriation of public funds. They also restored a charge that he had improperly lobbied his boss, Ovitt.
On December 10, the last day that it could do so, the state attorney general’s office, which is acting in concert with the San Bernardino County District Attorney’s office in prosecuting the matter, appealed the Fourth District Court of Appeals ruling, seeking to have four bribery charges and a public officer crime count against Burum that were contained in the original indictment but which have since been nixed by McCarville and the appellate court reinstated.
In its petition to the California Supreme Court, the state Attorney General’s Office asserts California’s bribery statutes are a half century out of date and not in compliance with federal law, and are further not in keeping with previous decisions rendered by the state Supreme Court. Prosecutors took issue with McCarville’s ruling, which was affirmed by the Fourth District Court of Appeals, that someone who has given a bribe cannot be simultaneously guilty of having aided and abetted the individual who received the alleged bribe.  McCarville and the Fourth Appellate Court’s rulings will hamstring prosecutors in the pursuit of political corruption cases in the future, the state attorney general’s office maintains.
“Because the Court of Appeal’s holding specifically limits the manner in which prosecutors can charge bribery crimes, it will have a chilling effect on public corruption prosecutions and cause the issue to evade review,” deputy attorney general Melissa Mandel propounded in the appeal petition. She asserted that Burum was the “mastermind” of the entire criminal enterprise, while decrying the dislogic that he was being let off the hook while Erwin, whom she characterized as Burum’s “underling” was being held to answer “for the identical conduct.”
Mandel said it was imperative that the appellate court’s decision be reconsidered since the case is likely to “be used as a benchmark to inform the conduct of both public officials and those seeking to influence them as to what acts they can commit without subjecting themselves to prosecution” and “the state’s bribery law has not been meaningfully considered in more than 50 years.”
Stephen Larson, a former federal judge who is Burum’s defense counsel, wrote in court papers that prosecutors are flailing. The Fourth Appellate Court’s decision to dismiss the bribery charge was based on sound reasoning and Mandel’s citation was to a case that did not pertain to bribery and was irrelevant to the appellate court’s decision, Larson stated.
“The Court of Appeal’s decision is entirely consistent with every published case addressing these already well-settled issues,” Larson wrote in his response to Mandel’s appeal. “The only cases that have addressed this question have squarely held that a bribe-giver cannot be charged with aiding and abetting the alleged receiver of bribes.” Larson intimated in his response that the prosecution was overzealously prosecuting the case out of an untoward political motivation and vindictiveness toward his client, while misrepresenting the circumstances that led up to the filing of the lawsuit and the efforts of several individuals, including some of the defendants, to settle the matter. “The People’s unsupported recitation of facts at this stage of the case mischaracterizes the record and demonstrates their lack of prosecutorial objectivity. What the People fail to mention is that the $102 million settlement that Mr. Burum supposedly obtained through bribes actually involved the taking of over 60 acres of prime real estate by the county of San Bernardino from Mr. Burum’s company, Colonies Partners, L.P., for the construction of a regional flood-control facility—and thus Colonies was constitutionally-entitled to just compensation,” according to Larson.
Larson also wrote that since the case is an unpublished one it will not have a bearing on future rulings and is not eligible for Supreme Court review. “The opinion will have absolutely no precedential impact on future cases, nor will it affect the charging discretion of other prosecutors in other cases,” Larson asserted.