A further complication has emerged in the Colonies Lawsuit Settlement Public Corruption Prosecution, with the central defendant now seeking to have one of his codefendants tried separately.
The case, which revolves around charges of conspiracy, bribery, extortion and the corruption of public officials, involves the activity leading up to the November 26, 2006 vote by the board of supervisors to confer a $102 million settlement on the Colonies Partners to bring to an end litigation brought against the County of San Bernardino and its flood control division over drainage issues at the company’s Colonies at San Antonio residential and Colonies Crossroads commercial subdivisions in northeast Upland.
A 29-count indictment handed down on May 9, 2011 alleges Jeff Burum, one of the managing principals in the Colonies Partners, with the assistance of one-time sheriff’s deputies union president Jim Erwin, first threatened and coerced then-supervisors Bill Postmus and Paul Biane into supporting the lawsuit settlement along with their board colleague Gary Ovitt. Prosecutors further alleged that after the vote was made Burum provided separate $100,000 bribes to Postmus and Biane as well as Ovitt’s chief of staff, Mark Kirk, in the form of donations to political action committees the three set up and controlled. In February 2010, charges were filed against Postmus and Erwin on a variety of political corruption, bribery, perjury and conspiracy theories. They pleaded not guilty to those charges but the following year Postmus pleaded guilty to 14 charges against him and turned state’s evidence. He then testified before a second grand jury, which handed down a superseding 29-count indictment that renamed Erwin and indicted Burum, Biane and Kirk.
Jeff Burum, who is considered by prosecutors to be the linchpin or “big fish” in the case, has requested Biane be tried separately. Burum and his attorney, former federal judge Stephen Larson, want Biane to have a separate hearing on facts, evidence and accusations before a different jury because Burum wants Biane to testify as a defense witness on his behalf.
Larson is pursuing a theory that the $102 million settlement Biane, Postmus and Ovitt approved in November 2006 ending the litigation between the county and the Colonies Partners was one that was justified on the merits all the way around. Larson believes that Biane can testify that he believed the settlement was entirely kosher. This would demonstrate to the jury in Burum’s criminal case, Larson believes, that extortion and bribery as the prosecution alleges were unnecessary and thus did not occur.
“Mr. Biane will testify that there was no quid pro quo ar-rangement with Mr. Burum prior to Mr. Biane’s vote for the settlement, and no attempt by Mr. Burum or anyone else to corruptly influence his vote,” Larson wrote in a motion now being considered by Judge Michael A. Smith.
The problematic issue is that at this point three of the four defendants – Kirk, Biane and Burum are scheduled to be tried together before the same jury. Erwin will have a separate jury because prosecutors want to use statements Erwin has made in the past against him. Some of those statement cannot be heard by the jury considering the case against the other three since, in terms of their rights to a fair trial, Erwin’s statements are deemed inadmissible against them. Burum now wants a third jury for Biane or a separate trial for him altogether because Biane does not intend to waive his Fifth Amendment right not to testify at his own trial
Court documents indicate that Biane, who could yet refuse to testify in any forum by standing on his Fifth Amendment rights, would be willing to testify as a defense witness at Burum’s trial if he is not on trial himself in the same venue and certain other conditions are met.
Biane’s attorney, Mark McDonald plans to wage his defense of Biane without putting him on the stand. But in a declaration in support of Larson’s motion, McDonald stated that “if Mr. Biane’s trial is severed from defendant Jeffrey Burum’s trial and Mr. Biane is given immunity for any testimony he offers at Mr. Burum’s trial, Mr. Biane is willing to testify at Mr. Burum’s trial.”
Smith is scheduled to consider the motion next week.
There have been interminable delays in bringing the case to trial. After the indictment was handed down, defense attor-neys filed demurrers challenging the sufficiency of the case on a host of legal, factual and technical grounds. In August 2011, Judge Brian McCarville granted several of those de-murrers, throwing out a number of the charges. The prosecution appealed McCarville’s ruling to the Fourth District Court of Appeal, a move which was matched by defense attorneys, who asserted that McCarville should have dispensed with even more of the charges than he actually did. The Fourth District Court upheld McCarville on all but one of his rulings favoring the defense and, in addition, threw out even more of the charges. Prosecutors then filed a last-minute appeal of the Fourth District Court’s ruling with the California Supreme Court.
After a year-long delay, the Supreme Court reinstated the charges and sent the matter back to the trial court, where it is being heard by Smith. In the intervening two years there have been further appeals but the case is now scheduled to go before a jury early next year with opening statements scheduled for January 4.