Prosecutors Call Motions To Dismiss Colonies Case Disingenuous And Frivolous

(April 8)  In responses filed in San Bernardino Superior Court March 28 and unsealed on April 4, prosecutors reject the contention of indicted Rancho Cucamonga developer Jeff Burum’s attorney that alleged prosecutorial misconduct, the withholding of evidence, the misstatement of facts in the indictment and failure to obtain the indictment in a timely manner require that the criminal charges Burum faces must be dismissed.
In May 2011, Burum, one of the two managing directors of the Colonies Partners, was indicted along with former San Bernardino County sheriff’s deputies’ union president Jim Erwin, former county supervisor Paul Biane and Mark Kirk, who was the chief of staff to count supervisor Gary Ovitt. According to that indictment, the four were involved in a conspiracy entailing the provision of bribes and an extortion scheme relating to the November 2006 settlement of a lawsuit brought against the county and its flood control division by the Colonies Partners over drainage issues at that company’s Colonies at San Antonio and Colonies Crossroads residential and commercial subdivisions in northeast Upland.
That indictment superseded a February 2010 indictment that had named Erwin and former supervisors Bill Postmus. Postmus in March 2011 pleaded guilty to the charges in the earlier indictment and then turned state’s evidence, serving as the star witness before the grand jury that indicted Burum, Erwin, and Kirk. Postmus had joined with Biane and Kirk’s boss, Fourth District County Supervisor Gary Ovitt, in approving the November 2006 $102 million settlement of the lawsuit brought by the Colonies.
According to prosecutors, Burum and Erwin, with the assistance of public relations consultant Patrick O’Reilly, had extorted Postmus and Biane by threatening to print and send out prepared mailers which exposed Postmus, who was then the chairman of the board of supervisors and the chairman of the San Bernardino County Republican Central Committee, as a drug addicted homosexual, and Biane, the vice chairman of the board of supervisors and the vice chair of the Republican Central Committee, as insolvent and on the brink of bankruptcy. Those mailers ultimately were never sent out to voters. Instead, after Postmus, Biane and Ovitt approved the settlement, Burum and his company made four $100,000 donations to political action committees controlled by Postmus, Biane, Kirk and Erwin. Kirk was paid, prosecutors allege, for convincing Ovitt to support the settlement.
The case at every turn has proven quite contentious, with several demurrers challenging the sufficiency of the charges filed with the trial court having been granted, those rulings appealed to the appellate court and upheld, and the appellate court’s decision appealed to the California Supreme Court, which reinstated the charges against the defendants.
In January, Burum’s attorney, former federal court judge Stephen Larson, filed a series of four dismissal motions in which he maintained the prosecution withheld exculpatory evidence from the grand jury, improperly formulated charges against Burum, and deliberately misled the grand jury, waited beyond the statute of limitations to lodge the charges against Burum and engaged in prosecutorial misconduct when investigators were dispatched to “raid the defense camp” by serving a search warrant in January 2013  at the private investigative firm Thomas Dale & Associates, which had been hired by Larson’s law firm to monitor Postmus to determine if he was still involved in the use of illicit drugs. Larson alleged that prosecutors and district attorney’s investigator Eric Bremner seized hundreds of pages of attorney-client privileged documents during their search of Thomas Dale & Associates, spuriously justifying the search by alleging that the private investigations firm had hired an Alabama woman to hack Bill Postmus’ cell phone.
With regard to Larson’s contention  that the statute of limitations had elapsed when charges were filed under the indictments, the prosecution maintains the charges against Burum and the others were filed within four years after the crimes alleged were either committed or discovered by law enforcement. Prosecutors further maintain that Larson’s contention that there were numerous indications in the form of court filings challenging the settlement, statements by officials and newspaper accounts giving notice of the crimes alleged does not establish that law enforcement agencies had been provided with legal notice that the crimes in question had occurred.
In general and specific, the newspaper accounts and statements by officials amounted to little more than rumors or unreliable reports, the prosecution said.
“As a matter of law, rumors, accusations and speculation are insufficient to give notice of a crime for the purposes of the statute of limitations. Burum failed to present even one item of evidence giving notice of the gist of this case: Burum bought three crooked votes with bribes,” the prosecution’s response states. Furthermore, according to prosecutors, “as a matter of law, there is no evidence whatsoever that the victim had knowledge of the charged crimes at a time outside the statute of limitations.”
In his motion for dismissal based on statute of limitations considerations, Larson suggested that county auditor controller Larry Walker in November 2006 had communications with law enforcement officials and others that constituted legal notice with regard to the alleged criminality involved in the case. The prosecutors acknowledge that, as stated in Larson’s motion, Walker was concerned that there was something inappropriate about the settlement and he asked county counsel about it before cutting a $22 million check to the Colonies Partners, which was the first installment on the $102 million settlement. He also placed a call to the California Attorney General’s Office. Eventually, Walker was advised by county counsel that the $22 million payment had to be made “even though there may be a concern that it could constitute a gift of public funds.”
Prosecutors produced communication from county counsel to Walker  at the time which stated “Neither this office nor any of the special outside counsels engaged to assist the board on the Colonies matter have ever opined that approval of the settlement by the board would be an unlawful or illegal action.”
Thus, prosecutors in their March 28 filing asserted “Burum not only failed to point out any evidence that Mr. Walker had notice of bribery (or any crime), but the evidence Burum cited – when put in context – proves the opposite. In short, with respect to all public officials, the evidence is clear: they suspected a bad deal under questionable circumstances. As a matter of law, that is insufficient to give constructive notice of the charged crimes.”
Prosecutors contested Larson’s assertions that exculpatory evidence had been withheld from the grand jurors.  Prosecutors said “the information contained in the grand jury report is of marginal relevance, and to the extent it is exculpatory, the evidence came in through other witnesses.”
With regard to Larson’s charge that the prosecution had engaged in prosecutorial misconduct, the prosecution counter-asserted, “This court should not countenance the exploitation of the motion process by using demonstrably false allegations of misconduct as a public relations tool to intimidate prosecutors, deceive the public and gain an unfair advantage as this case heads towards trial.”
In this frame of reference, prosecutors asserted that their reliance on Postmus, whose methamphetamine use was well known to them, did not constitute misconduct.
“Burum fails to provide any authority for his claim that the prosecution’s failure to drug  test Postmus amounted to outrageous government conduct justifying the drastic sanction of dismissal.”  Furthermore, according to the prosecutors, “the grand jury was fully aware of all facts pertaining to Postmus’ credibility, including his drug use.”
Characterizing the serving of search warrants at the offices of Thomas Dale & Associates as a raid on the defense camp and a violation of attorney client privilege was a “a desperate attempt to derail the prosecution by illegitimate means,” prosecutors asserted.
“The evidence will reveal that prosecutors took every precaution to protect against any possible infringement on Burum’s attorney-client privilege or work product, and their efforts succeeded in doing so,” prosecutors said.
Larson, through his sophistry and eloquent advocacy of his client and remonstrations concerning Burum’s constitutional rights, was perverting justice, the prosecutors suggested, although they were circumspect to avoid referring directly to Larson, attributing the legal defense he crafted to his client. “By trying to put prosecutors on the defensive with fabricated allegations of  ‘outrageous misconduct,’ Burum desperately attempts to deflect attention from his own criminal behavior,” prosecutors said in their motion.
A hearing on the motions was initially scheduled for May 5. Because of the voluminous nature of the prosecution response, that hearing will not commence until May 21.

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