(March 22) The prosecution’s appeal to the California Supreme Court to have bribery, conspiracy and related charges reestablished against Rancho Cucamonga developer Jeff Burum and three former public officials he is alleged to have bribed rests on a number of obscure legal issues.
In her opening brief to the Supreme Court, Supervising Deputy Attorney General Melissa Mandel utilized 43 pages and 13,541 words in an effort that referenced not only state laws and case law, but statutes and court decisions relating to bribery and public corruption cases outside of California to assert that both San Bernardino County Superior Court Judge Brian McCarville and the Fourth District Court of Appeals erred in dismissing what is perceived as the central elements of the Colonies Settlement Political Corruption Case against Burum and certain portions of the case against former sheriff’s deputy union boss Jim Erwin, former county supervisor Paul Biane and Mark Kirk, who was chief of staff to supervisor Gary Ovitt.
Burum, Erwin, Biane and Kirk, along with former county supervisor Bill Postmus, are the central figures in the Colonies Settlement Political Corruption Case, which 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, Burum, who with Dan Richards was one of the two managing principals of the Colonies Partners, conspired with Erwin, who was the former county sheriff’s deputies’ union president, to blackmail then- supervisors Postmus and 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 the alleged scheme in February 2010. Identified in that indictment as unnamed co-conspirators were Burum, Richards, Biane, Kirk and a public relations consultant working for the Colonies Partners, Patrick O’Reilly. 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 him 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.
In December, 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 to the state’s highest court, seeking reinstatement of the four bribery-related charges and a public officer crime count against Burum, the conflict of interest and aiding and abetting charges against Erwin, and the misappropriation of public funds counts.
In the indictment, Burum was not directly charged with bribery. Rather, the grand jury complied with prosecutors’ request that Burum be indicted on four counts of aiding and abetting bribery. Prosecutors maintain that responsible law enforcement officials did not become aware that the bribery had taken place until the Fall of 2008, when Adam Aleman, who had worked as a field representative for Bill Postmus when he was supervisor and later served as assistant assessor when Postmus was subsequently elected county assessor, told investigators about the alleged extortion and bribery. Since the superseding indictment did not take place until May 2011, Burum could not be charged with bribery because of a three-year statute of limitations on bribery. Instead, he was charged with four counts of aiding and abetting the receipt of a bribe, which carries a four-year statute of limitations.
When Burum’s attorney, former federal judge Stephen Larson, challenged the indictment through the demurrer process, he maintained prosecutors had “creatively but improperly” sought to get around the three-year statute of limitations on bribery by substituting the aiding and abetting charges. At issue in that challenge is Larson’s assertion that California case law and what in legal circles is known as Wharton’s rule prohibit the charging scheme utilized by prosecutors against his client.
Wharton’s rule, named for Francis Wharton, an American criminal law author, is also known as the concert-of-action rule. It prohibits the prosecution of two persons for conspiracy to commit a particular offense when the crime is of such a nature that two individuals must participate in its commission. Thus, cooperation by two persons to commit a particular crime cannot be prosecuted as a conspiracy if the crime necessarily involves two people. Conspiracy can only be charged in such cases if an additional person participates in the crime to enlarge the scope of the agreement.
Moreover, Mandel referenced the circumstances and application of logic pertaining to two cases, People v. Clapp and People v. Wolden, in making her argument that the case against Burum should be reestablished in total.
The Clapp case, from 1944, pertained to three women accused of involvement in an abortion, which at that time was illegal, and the conviction of the woman on whom the abortion was performed. The court held the woman submitting to an abortion was not punishable as a principal under one section of the penal code because her conduct was prohibited under another section. As such she was deemed not to be an accomplice in the crime of the other parties.
Larson utilized the case of People v. Wolden, which in itself relied upon the precedent of the Clapp Case, to convince both McCarville and the appellate court to dismiss the charges against his client. Russell Wolden, the one-time assessor of San Francisco County was indicted on 10 counts of accepting bribes and one count of conspiracy to accept bribes. One bribery count was dismissed and the jury failed to reach a verdict upon another and found him guilty of the conspiracy charge and eight counts of accepting bribes. Upon appeal, it was determined that the giver and receiver of a bribe are not guilty of a conspiracy, because the two crimes require different motives or purposes and that the giver of the bribe is not an accomplice in the “separate and distinct crime” of bribe taking.
In her brief, Mandel summarizes the issues before the State Supreme Court as “Can a bribe offeror be charged with conspiracy to commit bribery, and aiding and abetting the receipt of a bribe, where his conduct satisfies the elements of those crimes?” and “Can a private person be charged with aiding and abetting a criminal conflict of interest violation?”
Mandel then seized upon what she implied was a contradiction in the Fourth Court of Appeals’ logic, pointing out that its ruling would hold Erwin, who was acting as Burum’s agent in the alleged effort to extort Postmus and Biane, to account but would allow Burum to elude having to answer. “The Court of Appeals affirmed, holding that as matter of law, a person who offered a bribe could not be charged with aiding and abetting the receipt of a bribe,” Mandel wrote in her brief. “As to Erwin, however, the Court of Appeal agreed with the trial court that there was no legal impediment to charging an intermediary with aiding and abetting the acceptance of a bribe. This Court should overrule Clapp. Its faulty analysis has muddied the law, and its viability is questionable based on subsequent opinions. The absurd results foreshadowed by the dissent in Clapp become a reality here, where the mastermind of a massive bribery scheme is given a free pass while his underling is held criminally liable for the same conduct. Burum’s status as the offeror of bribes did not foreclose his liability for aiding and abetting the acceptance of bribes, as set forth above. Any person, including a bribe offeror, can be liable for conspiracy and aiding and abetting the receipt of a bribe if his conduct satisfies the elements of aiding and abetting liability. The indictment alleges Burum and Erwin conspired to, and did, aid and abet the receipt of bribes by Postmus and Biane. Law, logic and public policy compel the conclusion that the prosecution should not be foreclosed from charging and proving that Burum conspired to and did aid and abet the receipt of bribes simply because he also offered the bribes. People v. Clapp should be overruled, because it erroneously holds that a person cannot be an accomplice to one crime if his or her conduct with respect to a transaction violates another provision of criminal law.”
Another issue Mandel takes up is the distinction or lack thereof between being an accomplice in a crime and someone who aids and abets someone else involved in the same crime, harkening back to a 98-year-old case, People v. Coffey, which broadly defined the role of accomplice. “ Coffey held that in every case, as a matter of law, the giver and receiver of bribes were accomplices,” Mandel stated, going on to assert the court hearing the Coffey case had “no problem” with the reasoning that “the law has separate crimes.” Mandel said “holding parties accomplices to each other for the commission of these acts would make them principals in one crime and accomplices in the other at the same time for the same act.”
Furthermore, Mandel asserted, “Wolden was wrong. The crime of bribery does not require the participation of two or more persons. Participation of the offeror is not an element of the charge of accepting a bribe, and participation of the recipient is not an element of offering a bribe. In any event, the Court of Appeal’s holding on the bribery charges should be reversed, because Wolden misapplied the Clapp rule to bribery charges, and the rule is expressly inapplicable under the circumstances presented here. Thus, the bribery charges against Burum and Erwin should be reinstated. The conspiracy charge should also be reinstated. The Court of Appeal applied a narrow principle of federal common law (Wharton’s rule) in a manner that conflicts with United States Supreme Court and Federal authority, and is inconsistent with this Court’s decisions. Applying Wharton’s Rule here violates public policy because it cloaks bribe offerers in a blanket of case law historically used to protect vulnerable, victim-like individuals. Finally, this Court should reinstate the conflict of interest charges against Burum and Erwin and hold that private persons who aid and abet a criminal conflict of interest under Government Code section 1090 may be charged as principals.”
Larson and the defense attorneys for the other defendants have yet to respond to Mandel’s brief and will have the opportunity to do so before the Supreme Court rules on the matter. Those attorneys are prohibited from engaging in a public discourse about the case. Thus, a direct refutation of Mandel’s assertions is not presently available.
Nevertheless, from prior filings with the trial court and the Fourth Appellate Court, it is possible to chart portions of the defense’s position and partially extrapolate the other elements of the defendants’ responses to the prosecution’s allegations and legal theories. Based upon those filings, the defense asserts that the prosecution’s charges are impermissible as a matter of law.
Under state law, Larson asserts, an alleged briber cannot be charged with crimes related to an official’s acceptance of the alleged bribe, documents filed with the court state.
Larson maintains that charges of aiding and abetting in misappropriation of public funds and aiding and abetting in a conflict of interest in a contract lodged against Burum, a private citizen, need to be dismissed because such charges can only be applied to public officials.
Not only do all of the charges in the indictment fall outside of the statute of limitations, according to defense attorneys, the charges are improper entirely, they maintain, because no acts of bribery took place.
In his response to the prosecution’s notice of its appeal to the Supreme Court, Larson in December said the Fourth Appellate Court’s decision to dismiss the bribery-related charges 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.
“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.”
According to Larson, the prosecution’s overzealous prosecution of the case is rife with political motivation and vindictiveness toward his client, and the prosecution’s assertions misrepresent 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. Thus, Colonies was constitutionally-entitled to just compensation,” according to Larson.