California Supreme Court Turns Back Move To Ressurect Colonies Conspiracy Charges

The California Supreme Court on January 20 slammed the door on prosecutors’ attempt to extend the statute of limitations on a conspiracy charge that is the legal linchpin to the Colonies Lawsuit Settlement Public Corruption Prosecution. In 2011, a combination of prosecutors from the San Bernardino County District Attorney’s Office and the California Attorney General’s Office persuaded a grand jury to return an indictment against Rancho Cucamonga-based developer Jeff Burum, former San Bernardino County Second District Supervisor Paul Biane, Mark Kirk, the one-time chief of staff to then- Fourth District Supervisor Gary Ovitt, and Jim Erwin, who had been the president of the county sheriff’s deputies’ labor union and later assistant assessor under former San Bernardino County Assessor Bill Postmus.
The indictment alleged that the four were involved in a conspiracy involving extortion, bribery, misappropriation of public funds, perjury, fraud, graft and corruption with regard to a November 2006 vote by the board of supervisors to confer a $102 million settlement on the Colonies Partners to settle a lawsuit that company had brought against the county and its flood control district over drainage issues at the Colonies at San Antonio residential and Colonies Crossroads commercial subdivisions in northeast Upland.
Burum was, with Dan Richards, one of the two managing principals in the Colonies Partners. The board of supervisors voted 3-2 to make that settlement,, with Bill Postmus, who was then chairman of the board just prior to leaving that post to become county assessor, and Biane and Ovitt prevailing over then-supervisor Dennis Hansberger and supervisor Josie Gonzales, who opposed the settlement.
Prosecutors alleged, and the Grand Jury accepted, that Burum, working with Erwin, first extorted Postmus and Biane and then bribed them with $100,000 contributions made to political action committees they fully or partially controlled to approve the settlement. According to prosecutors and the indictment, Kirk was provided with a similar bribe in the form of a $100,000 contribution to his political action committee to influence Ovitt to support the settlement.
That vote took place in late 2006 and the series of contributions occurred in 2007.
The indictment did not come until 2011, more than three years after most of the overt acts outlined in the conspiracy charges.
Though Postmus pleaded guilty to 14 charges of political corruption, bribery, conspiracy, conflict of interest, perjury and fraud stemming from a previous case involving the Colonies lawsuit settlement vote lodged against him in 2010 and had turned state’s evidence in the case against Burum, Biane, Kirk and Erwin, the four defendants all pleaded not guilty and have steadfastly maintained their innocence in the face of the continuing case. While the indictment served to bind them over for trial, they are under the rule of law still considered innocent until proven guilty by a means of a trial before a jury of their peers.
In earlier legal sparring prior to the case going to trial, defense attorneys sought the dismissal of the charges against the defendants. In the summer of 2014, the judge hearing the case, Michael Smith, dismissed the conspiracy charge on statute of limitations grounds, rejecting the prosecution’s theory that a four-year rather than a three-year deadline on bringing a conspiracy charge involving governmental officials should apply.
The prosecution appealed that to the Fourth District Appellate Court, which rejected it. That decision was then appealed to the California Supreme Court. On January 20, the Supreme Court denied the petition by prosecutors to reverse the lower courts.
The conspiracy charge lies at the heart of the case, upon which the primary narrative propounded by prosecutors is hinged, including 43 overt acts. This conspiracy allegation represents the gravitas of the case, in particular that pertaining to Burum, considered the key defendant in the entire matter as he is the prime mover in all of the criminal action alleged.
Smith has upheld the lion’s share of the remaining charges and last week he denied a motion by the defense to dismiss the indictment on grounds prosecutors withheld exculpatory evidence from the grand jury.
The start of the trial has been delayed multiple times. It had been set to begin on February 1, but because two of the defendants, Kirk and Biane, have changed attorneys and health issues bedevil one of those defense attorneys, the trial is now set for October.

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