The California Supreme Court will consider arguments by prosecutors that bribery and other political corruption charges pertaining to the 2006 Colonies lawsuit settlement that were thrown out by the trial court judge in 2011 and the California Fourth District Court of Appeal last year should be reinstated.
It was announced on February 13 that the state’s highest court will take up the matter, at least temporarily resuscitating the prosecution against Rancho Cucamonga-based developer Jeff Burum and three former political figures. The case against Burum and former county supervisor Paul Biane, former sheriff’s union boss Jim Erwin and former Fourth Supervisorial District chief of staff Mark Kirk was in large part gutted by previous court rulings. The California Supreme Court will now determine whether several of the charges that are central to that case in fact should be aired before a jury.
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.
Both the California Attorney General’s Office and the San Bernardino County District Attorney’s Office allege that earlier in 2006 Jeff Burum, who was with Dan Richards 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 send to voters but ultimately withholding mailers revealing 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 in February 2010. After Postmus in March 2011 entered guilty pleas on 14 of the felony counts against him, 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 asked the appellate court to sustain more of the demurrers than McCarville actually did.
After nearly a year of consideration, the 4th District Court of Appeal in a 41-page decision written by Justice Art W. McKinster and joined by associate justices Betty Ann Richli and Douglas P. Miller, on October 31, 2012 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, and restored some elements of one conspiracy charge along with an aiding and abetting charge against Burum. The appellate panel  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. The judges denied Kirk’s request to throw out two charges pertaining to conspiring with Burum and misappropriation of public funds and restored a charge that he had improperly lobbied his boss, Ovitt.
Prosecutors asked the Supreme Court to reexamine the Fourth District Court of Appeals’ October 31 ruling. Of central concern to prosecutors is reestablishing the viability of the bribery charges against Burum, considered the linchpin to the entire case.
Two weeks ago, prosecutors were heartened when a San Diego Superior Court judge in his ruling with regard to a civil case that pertains to the Colonies settlement, made a finding that the county had no grounds to proceed with its efforts to recover a portion or all of the $102 million from the city of Upland, the California Department of Transportation or San Bernardino County’s own transportation agency, all of which had some impact on the flood control arrangements for the Colonies project, because Postmus had entered a guilty plea to charges that he had a conflict of interest in the matter and had taken a bribe to ratify that settlement.
For the duration of the case to date, the only arguments and issues being entertained by the trial and appellate courts have pertained to legal issues, with the prosecution and defense attorneys briefing the judges as to the applicability, inapplicability, sufficiency or insufficiency of the charges, with the courts assuming without question the accuracy of the factual allegations contained in the indictment. The factual issues have yet to be considered and the Supreme Court’s review will likewise not take up whether the facts as alleged by the prosecution are accurate but will extend only to whether the criminal charges lodged against the defendants are applicable if the factual basis for the case laid out by the prosecution is assumed to be true.
In this way, the true heart of the defense of the case pertaining to the factual issues has not been previewed in court. It has been hinted at, however, in information that has emanated from various sources, specifically with regard to the credibility of Postmus, who has been twice arrested for drug possession and has acknowledged a long-running drug addiction while simultaneously making conflicting statements to the FBI about whether he considered or understood the $100,000 in donations Burum made to his political action committees to be a bribe. The defense is also fortified with evidence to show that statements made under oath to the grand jury which implicated Burum in an effort to unduly pressure members of the board of supervisors were factually inaccurate. Among those was at least one representation by supervisor Josie Gonzales, who opposed the settlement in 2006. The defense will not have the opportunity to dispute the factual basis for the case until the case goes before a jury for trial.
Since the prosecution instituted the petition for review, it will have 30 days from the time of the Supreme Court’s order to provide its brief on why it believes the charges that have been dismissed should be reinstated. The defense will then have 30 days from the time of the prosecution’s brief to provide its responding brief. The Supreme Court then has the option of accepting further written responses and requesting oral arguments or making its decision on the basis of the written submissions. It is anticipated a decision on the Colonies matter will not be made for another six months.
“We are disappointed by the further delays occasioned by the Supreme Court’s review of the Court of Appeal’s decision,” Burum’s attorney, Stephen Larson, told the Sentinel. “However, we respect the judicial process and look forward to the opportunity to fully vindicate Mr. Burum before the trial court. I cannot comment on the issues before the Supreme Court while they are being considered.”