By Mark Gutglueck
The prosecution in the Colonies Lawsuit Settlement Public Corruption Case encountered rough sledding during the fourth week of what is expected to be a marathon trial. When the hearing before Judge Michael Smith concluded on Thursday afternoon, the testimony of the fourth witness to be called had yet to conclude.
More than 200 witnesses are anticipated to be heard before the matter goes to the two juries impaneled to hear evidence, one which will decide the fate of defendant Jim Erwin and another which is sitting in judgment over his remaining codefendants, Jeff Burum, Paul Biane and Mark Kirk. Bill Postmus, against whom criminal charges were lodged in a preceding related case, has already pled guilty to ten charges involving extortion, bribery and conspiracy, and has agreed to turn state’s evidence against the other four in return for leniency in sentencing. His testimony, which is likely to prove the centerpiece of the entire exposition upon which the defendants’ guilt or innocence is to be determined, is anticipated at some indefinite point in the weeks or perhaps months ahead.
At present and for the last three weeks, San Bernardino County Deputy District Attorney Lewis Cope and Supervising Deputy California Attorney General Melissa Mandel have been attempting to set the stage for Postmus’s grand entrance.
According to the 2011 indictment, after more than four years of legal wrangling between the Colonies Partners and the county over flood control issues at the Colonies at San Antonio residential and the Crossroad Colonies commercial subdivisions in northeast Upland, Colonies Partners managing principal Jeff Burum, with the assistance of former deputy sheriff’s union president Jim Erwin, threatened Postmus and Biane by preparing to make in the Fall of 2006 mass mailings to county voters of “hit pieces” dwelling on highly derogatory personal information relating to the two politicians as Postmus was vying for county assessor and Biane was promoting Measure P, calling for a pay boost for county supervisors, which was on the ballot in the November 2006 election. Ultimately, according to prosecutors, those political hit pieces were withheld and Postmus was elected assessor and Measure P was approved. Three weeks after the election, Postmus and Biane, along with supervisor Gary Ovitt, voted to settle the Colonies lawsuit for $102 million. Over the first six months of 2007, the Colonies Partners made separate $100,000 donations to political action committees prosecutors say Postmus, Biane, Erwin and Mark Kirk, the chief of staff to Gary Ovitt, controlled. Those donations, totaling $400,000, were, prosecutors allege, bribes given in reward for the approval of the settlement. Prosecutors maintain that Kirk influenced Ovitt to deliver his vote in favor of the settlement.
Following opening statements by Cope for the prosecution and Stephen Larson for Burum and Raj Maline for Jim Erwin in the trial’s first week and the early days of the second week, Cope began to lay the foundation of the case with the prosecution’s first witness, former county supervisor Dennis Hansberger, one of the two supervisors who opposed the settlement with the Colonies Partners.
Hansberger was able to lay out a scenario that was for the most part consistent with the prosecution’s perspective, painting the Colonies subdivisions as having been approved by the City of Upland on property zoned as open space that was crisscrossed with flood control easements and a long-existing former rock quarry spread over 31 acres. Hansberger testified that the county flood control district, which had built for the city a storm drain to alleviate flooding from a portion of the northern part of Upland and the then-recently constructed 210 Freeway which increased the value of the Colonies Partners’ commercial property, rightly assumed it had the right to use that 31-acre quarry, which he referred to as “a hole in the ground,” as a holding basin for the water from the storm drain. Hansberger asserted that the Colonies Partners’ lawsuit, which alleged damages based upon the vectoring of the water onto the property the company intended to develop, was of highly questionable merit and that the monetary damages the company claimed were unsupportable given the zoning on the property and its status as flood control property/open space, to which the Colonies Partners had no developmental entitlement nor reasonable expectation of use other than to accommodate floodwater runoff. Hansberger further testified with regard to the early efforts by Biane to push and the later efforts by Postmus to stampede the board of supervisors into a settlement of the lawsuit in a manner and ultimately at a monetary level – $102 million – he and all of the county’s lawyers felt inappropriate and unjustifiable. After Cope finished with his questioning, Hansberger held up reasonably well under the aggressive, indeed sometimes ruthless, cross examination by both Larson and Maline and the somewhat less intense questioning by Biane’s attorney, Mark McDonald, and Kirk’s attorney Peter Scalisi.
Defense attorneys did get Hansberger to concede that he was unaware of documents that indicated the county flood district officials misled the Colonies developers on how much water was going to be directed to their property. He dismissed as impractical evidence that the “open space” designation could have been changed by the city if there was no basin. He also said that despite a Superior Court judge’s 2006 denouncement of the county’s actions, he believed that the county was in the right and that he believed what the county lawyers told him as opposed to the judge’s criticism.
Week Three closed out with what was the strongest showing of the prosecution so far, testimony from former Assemblyman Brett Granlund, who had been a friend and associate of Erwin. Granlund testified that in the months prior to the settlement, Erwin had bragged to him that he was going to be able to force Biane and Postmus to support the settlement by threatening to expose Biane as being on the brink of bankruptcy and having been caught in a compromising situation, while simultaneously threatening to reveal Postmus’s drug use and homosexuality.
That testimony, shoring up a major element of the prosecution’s theory of guilt – the extortion element – was heard only by the jury considering the case against Erwin. The jury for Burum, Biane and Kirk were not in the courtroom.
On Monday of this week, Kirk was late to the courtroom because snow in the mountains had prevented him from making it down to San Bernardino. With all four of the defendants’ attorneys present along with Erwin, Burum and Biane, Erwin’s jury was present for Maline’s cross examination of Granlund.
Maline pressed Granlund on when it was that Erwin had told Granlund about the plan to blackmail Biane and Postmus, and the accompanying timing of the digging through their trash to obtain derogatory information about them. While Granlund did not recede from his earlier statements to indicate that Erwin had told him of the effort to pressure Postmus and Biane, he at one point hinted that it might have been part of an earlier ploy by Erwin when he was still working on behalf of the sheriff’s deputies union, prior to the time he was working on behalf of Burum Colonies Partners, to successfully obtain for the county’s deputies retirement benefits that would allow them to retire at the age of 50 and receive pensions equal to three percent of each individual deputy’s highest yearly earnings times the number of years he or she was employed by the sheriff’s department. Granlund was unable to say that Erwin was threatening Postmus and Biane with exposure in the fall of 2006
“I only know that he told me they had access to Biane and Postmus’s trash,” Granlund said. Maline circled back to Granlund’s testimony the previous week that indicated Erwin was making those threats in the crucial time period of Fall 2006. “Deputy district attorney Cope drew you specifically into that time period,” Maline said, insinuating that Granlund had testified falsely. “I testified to the best of my recollection,” Granlund responded. “I cannot recite dates and times for the last ten years.”
Having succeeded in getting Granlund to become more tentative about the timeline of events, Maline sought to further take the sharp edge off of or otherwise blunt the damage Granlund had inflicted on his client. He suggested that Granlund and Erwin, who had once been close, had a row and that the ensuing animus was coloring Granlund’s testimony against his one-time friend.
“You had a falling out with Mr. Erwin,” Maline suggesterd.
“Jim had a falling out with me,” Granlund retorted. “It wasn’t my idea.”
Through further questioning, it was ascertained that it was the district attorney’s office’s serving of search warrants at Erwin’s office and at his home in January 2009 that precipitated the eventual rift between Erwin and Granlund. Both men had previously been close to district attorney Mike Ramos. The upshot of some of the exchange between Maline and Granlund illustrated that when the district attorney began targeting Erwin in 2009, Granlund gravitated toward an alignment with Ramos and further away from Erwin. The break between Erwin and Granlund did not come immediately, according to Granlund, who recounted a meeting he had with Erwin in February 2009 in Sacramento, where Granlund was working as a lobbyist with the firm Platinum Advisors. Though Granlund was indefinite as to the location – the Sacramento Sheraton Hotel – he was imprecise as to the date, but eventually Maline was able to have him accede to the meeting having occurred on February 18, 2009. In response to Maline’s question as to whether Ramos was the subject of their conversation, Granlund said, “Among other things, Mr. Erwin and I had a conversation in which he told me Mike [Ramos] was in Sacramento chasing girls, and I said, ‘No. I don’t believe that. He [Ramos] was coming up [to the state capital] and he was testifying.” Granlund indicated that Ramos declined to engage in any drinking or carousing with him and that he interpreted that to mean Ramos was engaging in no untoward activity. “I might see him, but by 5:30 or 6:00 he went up to his room,” Granlund said. “He was there to attend the crime victims board meetings or whatever. He did not come out and socialize with us in Sacramento.”
Maline, however, suggested that Erwin was at that point seeking to take legal action in response to the district attorney’s office’s action against him and that Ramos was engaged in a vendetta against Erwin because of rumors going around relating to Ramos’s womanizing. “They had served the search warrants the month before,” Maline said. “Mr. Erwin was hopping mad about it.” It was during that discussion, Maline suggested, that Granlund had disclosed the actual reason the district attorney’s office was persecuting his client. “You told Mr. Erwin that Mike Ramos was mad about [the reports relating to his womanizing] and he better stop talking shit about him and Doreen Boxer [San Bernardino County’s public defender, with whom Ramos was alleged to have been carrying on],” Maline asserted.
Granlund responded, “I thought it was ill-advised to be publicly trashing or criticizing the district attorney. Accusing the district attorney of personal bad behavior is something that was not very smart. He might end up indicted and sitting in a trial ten years later.”
In a recorded phone call with an investigator, Granlund said he had warned Erwin to end his personal attacks on Mike Ramos. “I said, “You’ve been in law enforcement. If you go after Mike [Ramos], you’ll have the whole [district attorney’s] office coming down on your ass,” the jury heard Granlund say in the recording.
Further on in the questioning, when Maline suggested that this was a warning that Granlund had been delivering to Erwin from Ramos, Granlund said he was not quoting Ramos verbatim but rather it was his “summation” of his conversation with Ramos about Erwin’s activities.
In a July 22, 2009 conversation with a district attorney’s office investigator, Maline said, Granlund had said that he had reported that it was Erwin spreading information with regard to Ramos’s womanizing. Maline then confronted Granlund, “In reality it was you spreading the rumors about Mike Ramos sleeping with women in Sacramento.” As Maline attempted to pursue that line of questioning, an objection was raised and sustained by Judge Smith.
On redirect questioning from Cope, Granlund insisted it was Erwin that said “He was going to expose him [Ramos].”
“Did Mr. Erwin ask you to do anything in going after Mr. Ramos?” Cope asked.
“Just to back up his story, be a witness or go along with the fact that Mr. Ramos was having various affairs.”
“Did he approach you more than once in this story he was developing? Cope asked.
“He was going to make it more about Ramos,” Granlund said. “I didn’t think it was a smart thing to poke the district attorney in the eye when you are the one on trial.”
Maline was able to get Granlund to say that he considered Bill Postmus to be his friend. Maline asked Granlund why he had not informed Postmus in 2006 that someone was digging through his trash in an effort to find damaging or embarrassing information about him.
“I didn’t want to get into it,” Granlund said. “I didn’t delve into it and I didn’t try to influence it.”
Maline further suggested that other factors had intensified Granlund’s animus toward Erwin, motivating him to use the opportunity the trial has presented to hurt him. Erwin had attacked Granlund in postings on his website, Inland Politics, Maline said, which had resulted in one of Granlund’s associates, David Ellis, failing to capture a county contract to manage retiree health benefits. Granlund denied that was a factor influencing his testimony.
Maline further suggested Granlund had been coached by the district attorney’s office to associate the blackmail material he had accumulated on Postmus and Biane with the Colonies settlement. In two recorded phone calls with district attorney’s investigators in 2009 and then in another recorded phone conversation with Postmus on October 24, 2011, Granlund makes no mention of the effort to blackmail Postmus and Biane in the fall of 2006. But after a phone call from district attorney’s office investigator Hollis Randles on October 29, 2011, Granlund discussed the matter in detail with Postmus in a call on November 1, 2011.
Despite the consideration that he represents a key witness in establishing the extortion element of the case that extends to Burum and Biane and his testimony before the jury for Burum, Biane and Kirk was anticipated, after the grueling session with Maline on Monday, Granlund was dismissed as a witness early Tuesday morning. Because a juror was ill, there was no testimony that day.
On Wednesday, January 25, the prosecution called former state assemblyman and state senator Jim Brulte to the witness stand. Handling his examination was the member of the prosecution team, Melissa Mandel, who had been present throughout the earlier stages of the trial but had not provided the opening statement nor had handled the examination of Hansberger and Granlund.
Mandel is considered to be more dramatic and dynamic in her courtroom presence than the rather staid and plodding Cope, and it was thus anticipated there would be confrontational moments in the examination of Brulte. Despite her reputation of having a more aggressive approach than Cope, Mandel never seemed to get on track with Brulte. Indeed, to a certain extent Mandel came off as being starstruck by Brulte, the current chairman of the California Republican Party. More than a decade ago, he was the minority leader in both the California Assembly and the California Senate for the majority of his tenure in Sacramento and is the only freshman to ever serve as a party leader in both houses of the California State Legislature. In one of the more infamous episodes in the history of California politics, he very nearly became the Assembly Speaker in 1994 when the Republicans captured a majority of seats in the state’s lower legislative house, but was outmaneuvered when the former speaker, Willie Brown, engineered a deal with Republican defectors Doris Allen and Brian Setencich, both of whom were elected Speaker by the Democratic minority, during whose tenures, Brown was the de facto Speaker. Perhaps because of his stature, political, social and physical, Mandel was unable to puncture a hole of any significance in the 6-foot 4-inch Brulte’s armor.
Brulte was called to offer testimony regarding his role as a hired consultant who was called upon to aid Burum in achieving a settlement of the lawsuit.
Upon leaving the legislature in 2004 as a consequence of California’s term limits on state politicians, Brulte went to work almost immediately with the Sacramento-based government relations firm California Strategies, rising at once to the level of a full partner or principal after leaving the legislature. Through California Strategies, he was hired by Burum in December 2004 on a one-month contract. He was given three one-month extensions on that $10,000 per month contract.
He was hired, Brulte said, to “see if I could find a pathway settlement.” Brulte said that he knew nothing of the merits of the case when he was first retained. It was clear to him, Brulte said, that Burum was confirmed in his opinion that his position was valid. “Jeff thought like a typical businessman: ‘I’ve been wronged. I’m going to win.’ That was his mindset,” Brulte said.
Mandel asked Brulte if he thought that mindset was accurate.
Initially, Brulte said, “I didn’t have enough information to know.” He researched the matter, he said, by meeting with the Colonies Partners’ lawyers and came away with the belief the Colonies Partners were on strong legal ground.
Brulte said there was little prospect that the litigation, which at that point had gone on for more than two years, would settle prior to trial because the “narrative” playing out in the local media with regard to the litigation cast the Colonies Partners and Burum in a negative light. He said the Colonies were outgunned politically because the county employed a public spokesman who set the tone for how that narrative went. Meanwhile, Brulte said, Burum had convinced himself that reporters “always get the story wrong.” Brulte said he told Burum that “if you are not telling them your side of the story” the result would inevitably be newspaper coverage that was one-sidedly in favor of the county’s position, leaving the officials at the highest level of county government – the board of supervisors – disinclined to consider settling the case but rather seeing it through to trial.
“As long as the newspapers were talking about the righteousness of the county and the despicability of the developer, no politician in their right mind would settle because they would have a lot of explaining to do,” Brulte said. In essence, he said, the Colonies Partners were hampered by the depiction of the case as one involving an “evil, rich developer out to screw taxpayers. I didn’t think the narrative in the media space accurately reflected the truth.” He proposed that Burum “Start talking to the press and tell them your side,” telling him “You understand the case better than anyone.” Brulte said in this way the newspaper readers were presented with an alternative narrative, one that went “oppressive government screws private property owner.”
Brulte was retained in between two civil trials relating to the litigation. The Colonies Partners had prevailed at the trial that preceded Brulte’s hiring. The county appealed that verdict, rendered by Judge Peter Norell, who had ruled the county’s flood control easements on the Colonies property had been abandoned and were no longer in effect. Ultimately, the appellate court reversed Norell, saying the county was at liberty to continue to use the 31-acre basin specified under the easement recorded in 1933 and that the county and the Colonies Partners needed to return to the trial court to determine the terms under which the county would be able to use an additionally needed 29.88 acres to accommodate all of the storm water the county was diverting onto the Colonies property.
Brulte acknowledged that he had been something of a mentor to Bill Postmus, who had worked in his legislative office briefly in the early 1990s before departing to go to work for assembly members Kathleen Honeycutt and Keith Olberg.
Brulte said he arranged a meeting between Postmus and Burum at the Red Hill Country Club.
“I think Jeff’s a good guy, a pleasant guy, an honest guy,” Brulte said. “He understands development and he understands his case. You might think he had a law degree. Five members of the board of supervisors decide to sue or not to sue. My next advice to him was ‘You should meet the chairman of the board of supervisors.’”
Mandel took issue with the concept of principals involved in litigation meeting in a a forum without legal representation.
“You did know there were lawyers involved and that this was active litigation?” she asked. “These are opposing parties in litigation.”
“In my world, principals get together all the time to discuss issues,” Brulte said.
Brulte said that Postmus, Biane and the rest of the board of supervisors getting their information with regard to the lawsuit filtered through the county’s attorneys was not necessarily a good thing.
“People who are paid hundreds of dollars an hour to litigate like to litigate and government always pays its bills,” he said.
Toward the end of the time he was working on behalf of the Colonies Partners, Brulte accompanied Burum, Colonies Partners co-managing principal Dan Richards and the Colonies Partners attorneys to a meeting with Postmus and Biane and the county’s attorneys held on March 25, 2005, at Biane’s Rancho Cucamonga office. Brulte said he used a technique he had picked up while in the legislature of having the attorneys for both sides present their arguments. After a break, Brulte said, the attorneys were excluded from the room and during an ensuing session in which he, Burum, Richards, Postmus and Biane participated exclusively, a tentative settlement agreement for $77.5 million was hashed out, involving $22 million in cash to be paid to the Colonies Partners along with the transfer of roughly 600 acres of surplus flood control land in Rancho Cucamonga, which Brulte said Burum and Richards represented as being worth $55 million, and which they could develop. Ultimately that deal was never consummated.
In what came across as a tepid round of questioning, Mandel inquired of Brulte if Postmus and Biane had the authority to enter into a settlement agreement without attorneys present, whether there was an appraisal on the property and whether the Colonies Partners could document the $22 million in out of pocket costs they had accrued that the monetary component of the settlement was intended to redress. Brulte shook off the question about the need for the lawyers to be present and he indicated Biane and Postmus requested receipts from the Colonies Partners to show what the $22 million in damages was for. “You wouldn’t pay somebody out-of-pocket costs without knowing what the out-of-pocket costs were,” Brulte said.
The issue of the conference without attorneys present was a subject explored by Jennifer Keller, co-counsel to Burum’s lead defense attorney, Stephen Larson, as well as Judge Smith.
Keller asked if there was a requirement for lawyers to be present during the negotiations.
“None that I’m aware of,” Brulte responded.
Judge Smith asked Brulte if the county’s attorneys objected to being banned from the room during the negotiating session involving Burlte, Burum Richards, Postmus and Biane.
“I don’t think the county’s attorneys were happy about it,” Brulte said, but he added “They didn’t start jumping up and down and kick the tables.”
At one point, just as Mandel appeared to be moving into a more aggressive mode, Brulte deflated her intensity, telling her he considered himself to be a servant of her will. This resulted in a momentary suspension of the courtroom decorum, as Brulte’s remark prompted an exclamation from Mandel that she would like her husband to make such a declaration. The double entendre-laced repartee that ensued involved Brulte offering to “spend just five minutes” in mediation with Mandel’s husband, and concluded with Brulte’s pronouncement that Mandel was “hot.”
Brulte also clarified testimony he had provided on three occasions in the past relating to trips he had made to China, in particular one in 2005 and another in 2006. Postmus accompanied him on both of those excursions, which were put on by the California State Friendship Committee. He had previously testified that Burum had been among those who made both of those trips. He was in error, Brulte said. He said Burum indeed went to China with the tour in 2005 but was not present in 2006. Brulte said he also encountered supervisor Josie Gonzales in China in 2006. He said she was not there as part of the tour he was on but was there on an economic development junket in her capacity as a county official.
To a question by Keller, Brulte denied ever attempting to lure Gonzales into a sexually compromising situation.
Tim Johnson had worked as an employee of the woman that served in the capacity of treasurer on Paul Biane’s maiden campaign for supervisor in 2002 and he as a volunteer on his campaign that same year. He then was on Biane’s supervisorial staff the entire eight years Biane served as supervisor, including finishing as Biane’s chief-of-staff in 2010. Johnson testified on Thursday.
Throughout much of his testimony, Johnson evinced a lack of memory with regard to certain events or issues, and in most cases that failure of memory appeared to weigh in Biane’s favor as Mandel reiterated questions which had been asked in grand jury sessions nearly five and seven years in the past. On some of the occasions where Johnson said he had no recollection, Mandel prompted him with transcripts of his grand jury testimony, inducing him to acknowledge details which in some instances cast Biane in a less than favorable light.
One such example occurred during Mandel’s questioning with regard to the formation of the San Bernardino Young Republicans political action committee, the recipient committee into which the $100,000 donation from the Colonies Partners to Biane was provided, and which the prosecution alleges was a bribe. Johnson said the formation of the committee was something he undertook at the suggestion of Matt Brown, who was then Biane’s chief-of-staff. To Mandel’s initial questions with regard to the committee, Johnson said that Biane had no participation in its formation. Mandel, however, provided campaign reporting documentation to show that the initial infusion of money into the committee’s account came from Biane.
In describing Measure P, a countywide initiative put on the ballot and sponsored by Biane in 2006 which called for raising the salary of each of the members of the board of supervisors from $99,000 per year to $151,000 per year, Johnson described it as a term limit measure, referencing a secondary provision in it that called for limiting members of the board to three four-year terms. Johnson referred to the measure as one that would result in “higher quality” governance, bring into government “fresh blood, generate new ideas and allow more qualified candidates to run.” It was not until he was cross-examined by Burum’s defense attorney, Steve Larson, that Johnson acknowledged that the measure would have boosted Biane’s pay by more than a third.
In several other respects, Johnson endeavored to paint a positive picture of his one-time boss, saying Biane “always worked in the best interest of the taxpayers” and adhered to “a guiding principle of conservatism.”
At one point, Mandel asked him if he still considered Biane a friend and Johnson said he did, adding that members of the Biane staff were akin to “a family.” To one of Larson’s questions, Johnson said he considered both Biane and Brown to be his mentors.
Mandel used projections of campaign reporting documents to reference a series of donations made to the San Bernardino Young Republicans, including ones for $10,000; $5,000; $2,500; $2,000; and $1,000, getting Johnson to say that there was nothing extraordinary about donations of that amount. When she referenced the $100,000 donation from the Colonies Partners and asked about its significance, Johnson said, “It was unusual for the committee, yes. The amount wasn’t consistent with any other contributions we received.”
Mandel led Johnson through his recollection of having gone to pick up that $100,000 check, which he said was not at Burum’s office but at the Coldwell Banker office of Burum’s partner, Dan Richards.
Larson elicited from Johnson that while working with Biane, he devoted himself to constituent services Monday through Thursday and then was detailed to political work on Fridays. Johnson also acknowledged that he spent a fair amount of time involved in political fundraising.
In his responses to Mandel’s questions, Johnson indicated that he was familiar with Jeff Burum and that he knew Burum had been one of Biane’s political backers. To a pointed question about Measure P, Johnson acknowledged that Burum had opposed it openly.
Larson asked Johnson, “Did Mr. Biane ever tell you he felt intimidated by the Colonies Partners or Mr. Burum?”
“I don’t recall that,” said Johnson.