Defense Files Quartet Of Motions To Have Colonies Indictment Dismissed

(January 28)  Multiple instances of prosecutorial misconduct have so marred the Colonies Lawsuit Settlement Public Corruption Case that it should be dismissed altogether, according to four motions filed by the attorney representing the defendant central to the case, a businessman who is accused of extorting and bribing four former public officials.
The California Attorney General’s Office and the San Bernardino County District Attorney’s Office obtained an indictment against Jeff Burum, Paul Biane, Mark Kirk and Jim Erwin in May 2011. That indictment alleged Burum, one of the two managing principals of the Colonies Partners, first extorted and then bribed then-supervisors Bill Postmus and Paul Biane to vote to approve conferring a $102 million payment to the Colonies Partners in 2006. That payment was made to settle a lawsuit brought against the county by the Colonies Partners in 2002 over flood control issues at the Colonies at San Antonio residential and Colonies Crossroads commercial subdivisions in northeastern Upland.
According to the prosecution, Burum, with the assistance of Erwin, a former president of the San Bernardino County sheriff’s deputies union who was working as a consultant to the Colonies partners, in 2006 threatened Biane and Postmus, who were that year involved in political campaigns, by creating political mailers that dwelled on derogatory information pertaining to both. Prosecutors further allege that those mailers were withheld from distribution and that three weeks after the election Postmus and Biane joined with supervisor Gary Ovitt in approving the $102 million payment to the Colonies Partners. The prosecution alleges that subsequent to the $102 million settlement, payoffs were made to Postmus, Biane and Mark Kirk, the latter being supervisor Gary Ovitt’s chief of staff.  These payoffs were in the form of separate $100,000 payments over the next seven months to political action committees controlled by Postmus, Biane and Kirk. Kirk was paid, prosecutors allege, for influencing his boss, Ovitt, to support the settlement payment. Erwin, who went to work for Postmus as assistant assessor after the latter acceded to the position of assessor in 2007, likewise formed a political action committee that was endowed with a $100,000 contribution from the Colonies Partners.
Postmus had been named in a previous indictment concerning this alleged activity along with Erwin, in February 2010. Though he had initially pleaded not guilty in response to that indictment, in March 2011 he entered a guilty plea to all charges against him. He then served as the star witness when a second grand jury was impaneled in April 2011. That grand jury handed down a superseding indictment in May 2011, which renamed Erwin and added Burum, Biane and Kirk.
Stephen Larson, a former federal judge who is now representing Burum, filed four motions in San Bernardino Superior Court on January 27 which outline in detail his contention that prosecutors manipulated the grand jury process by a selective presentation of evidence and the coaching of Postmus as a witness to obtain the indictments of his client and his three co-defendants.
Characterizing the prosecution as a “targeted, politically-motivated smear campaign” and “an unfettered abuse of prosecutorial power,” Larson called upon the judge hearing the matter, Michael A. Smith, to dismiss the case against all four defendants.
According to Larson, the prosecution engaged in “a plethora of misconduct warranting the dismissal of the indictment.”
In early 2007, Larson said, the county “validated the settlement. Behind the scenes, however, political pressure was mounting to find a scapegoat for the unpopular settlement” Ultimately, Larson said the California Attorney General’s Office, and the district attorney’s office “determined that Jeffrey Burum would be that scapegoat. In their zeal to obtain an indictment of Mr. Burum, the prosecution apparently lost sight of its duty to seek justice and truth, and instead has engaged in a calculated campaign of misconduct, the cumulative effect of which constitutes a violation of the due process rights of Mr. Burmm and his codefendants and warrants dismissal of the indictment.”
The prosecution’s case consisted in large measure, Larson said, of the “manipulation of a known methamphetamine addict – former supervisor Willam Postmus – into concocting evidence to support its theory of the case, then presenting that manufactured evidence to the grand jury without explanation or  qualification. Knowing the effects that years of methamphetamine addiction must have had on Mr. Postmus’s perception and recall, the prosecution’s investigators used inappropriate interview techniques to convince Mr. Postmus to abandon the truth and adopt their theory of the case. In short, the prosecution elicited a methamphetamine-induced story from Mr. Postmus.”
Moreover, according to Larson, prosecutors “manipulated the evidence and misled the grand jury regarding the reasonableness of the settlement” and further “deceived Mr. Burum by telling him that he was not a target of its investigation, causing him to waive his constitutional rights and testify before a 2009 grand jury.”
Larson referenced the early statements of a Postmus political associate and friend, Adam Aleman, who worked for Postmus when he was supervisor and then, at the age of 23 in 2007, was named by Postmus as one of two assistant assessors at a $130,000 annual salary when Postmus became county assessor in January 2007 following the November 2006 election, in which he had defeated incumbent assessor Don Williamson. By late 2007, Aleman, who had no previous experience with regard to appraising or assessing properties, fell under suspicion for engaging in partisan political activity while working out of the assessor’s office, and in 2008 was arrested for misappropriating and misusing government property, destruction of governmental property and perjury.  It was during his interrogation by district attorney’s office investigators that information relating to the alleged extortion and bribery at the heart of the Colonies case was first provided to the prosecution.
Aleman pleaded guilty to charges of destroying public property and perjury. District attorney’s office investigators used statements provided by Aleman to obtain search warrants for several locations to obtain evidence upon which the indictments of Burum, Biane, Erwin and Kirk were based.
The prosecution, Larson alleged, “recklessly omitted from its search warrants the key fact that its assertions for probable cause were based on the averments of an alleged perjurer” and “withheld material exculpatory evidence regarding the lack of credibility of several key witnesses.”
In this way, Larson maintains, the “defendants have been irreparably prejudiced by numerous ‘foul blows.’”
Larson dwelled at some length on how the prosecution misframed or manufactured evidence to convince the grand jury to hand down the indictment. “The prosecution’s manipulation of its star witness in preparation for the grand jury proceedings constituted grave misconduct,” according to Larson. “The prosecution’s handling of Mr. Postmus violated Mr. Burum’s due process rights. The prosecution misled the grand jury regarding the impact of Mr. Postmus’s extensive methamphetamine use.” Larson maintained that in his interviews with district attorney’s office investigators, Postmus “admitted that the settlement occurred during the height of his drug use. The impact of Mr. Postmus’s drug use on his ability to accurately recall events strikes at the heart of his credibility. The prosecution’s head-in-the-sand approach to Mr. Postmus’s ongoing drug use amounts to a reckless disregard for the truth – the equivalent of suppressing evidence.“
According to Larson, when district attorney’s office investigators began questioning him shortly after he agreed to plead guilty and testify against others in exchange for leniency, Postmus made statements indicating that there had been no provision of bribes by Burum. But as they continued with those interrogations, Larson claimed, investigators planted seeds of information into the drug-addled Postmus that grew into trees of false testimony when he was finally brought before the grand jury.  “This entire process was an exercise in corrupting Mr. Postmus’s memory,” Larson propounded.  Larson cited Elizabeth Loftus, Ph.D., whom he described as “one of the world’s leading experts in human memory and eyewitness testimony” in explaining his theory of how the district attorney’s office had exploited Postmus to the detriment of the defendants.
“Based on her review of the investigators’ interviews of Mr. Postmus and his grand jury testimony, Professor Loftus concluded that Mr. Postmus’ changing story appears to have resulted from pressure interview tactics,” according to Larson. “When the grand jury convened, Mr. Postmus was primed to testify to the story the prosecution had manufactured.”
Furthermore, according to Larson, the prosecution’s theory that Burum’s provision of donations to the campaign war chests controlled by Postmus, Biane, Erwin and Kirk were tantamount to bribes falters.
“The payment of political action committee contributions after the settlement was approved cannot, as a matter of law, constitute bribery,” Larson stated. “An after the fact payment by itself ( i.e, without prior arrangement) necessarily lacks the requisite intent for the crime of bribery.”
Larson argued as well that the statute of limitations to charge the defendants was exceeded by the time of the 2011 indictment, in that more than three years had elapsed since the last contribution to the political action committees in question and more than four years had transpired since the vote by the board of supervisors to approve the $102 million payment. Thus, Larson asserts, the charges against the defendants are “time-barred.”
According to Larson, there are four bases upon which the court should dismiss the indictment, including  Penal Code Section 995, which states that an indictment should be set aside if a defendant has been indicted without reasonable or probable cause; Penal Code Section 939.71, which allows a grand jury to order evidence or witnesses that could be utilized to exonerate a defendant to be produced for consideration prior to an indictment; the statute of limitations; and prosecutorial misconduct.
Prosecutors have declined to publicly comment on the motions “in order to protect the integrity of the case and each defendant’s right to a fair trial.”
The prosecution has yet to file its response to the motions for dismissal.
In a previous response filed on March 14, 2013 to a motion by Larson to dismiss one of the charges based on statute of limitations considerations, Supervising Deputy California Attorney General Melissa Mandell maintained that the charges filed in 2011 were not time-barred because they had not been discovered until 2008.
“Burum’s statute of limitations claims rely on disputed issues of fact which have not yet been resolved,” Mandel asserted. “The indictment alleges that intermediaries were used to accomplish negotiations at the Doubletree Hotel, and that payment of bribes  was made to PACs [political action committees] controlled by Postmus, Biane, Erwin and Kirk. These facts and the indictment as a whole sufficiently set forth the secrecy and coverups involved in the crimes which prevented law enforcement and taxpayers from learning the facts.”

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