By Mark Gutglueck
The prosecution in the Colonies Lawsuit Settlement Public Corruption Case was thrown into crisis mode this week when one of the three witnesses considered to be key to proving that a Rancho Cucamonga developer bribed four county officials a decade ago went rogue during his testimony.
Early on in the probe that led to the indictments in the case, Matt Brown was considered by investigators to be a participant in what prosecutors now say was a complex extortion, graft and bribery conspiracy that led to the San Bernardino County Board of Supervisors voting 3-2 with then-supervisors Bill Postmus, Paul Biane and Gary Ovitt prevailing over then-supervisor Dennis Hansberger and supervisor Josie Gonzales to confer a $102 payment to 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. But after Brown, who was the chief of staff to supervisor Biane, was buttonholed by district attorney’s office investigators in April 2009 and threatened with being prosecuted for his role, he agreed to cooperate in the further investigation of the matter. Surreptitiously, he carried a recording device on the job, capturing audio recordings of his conversations with Biane, Postmus and others, in an effort to obtain information to further the investigation. Brown did so with the understanding that he himself would not be prosecuted.
In 2010, Postmus and Jim Erwin were charged in a criminal conspiracy, extortion, graft and bribery case arising out of the Colonies lawsuit settlement. Erwin, once a sheriff’s deputy who had been elected president of the sheriff’s deputies union, by 2006 was no longer union president but employed as the union’s executive director. As union president in 2004, Erwin had assisted Postmus in his successful reelection bid for supervisor. In 2006, Erwin had left as union president but was serving in the role of the union’s executive director. In that capacity, he assisted Postmus in his successful run for county assessor. Simultaneously, he was working as a consultant for the Colonies Partners in assisting them to achieve a settlement to the lawsuit. After Postmus moved on to become assessor in 2007, he hired Erwin to serve as assistant assessor.
In response to the criminal charges that had been filed against them in 2010, both Postmus and Erwin pleaded not guilty. But in March 2011, Postmus pleaded guilty to a total of 14 felony political corruption charges relating to the Colonies Partners Lawsuit Settlement Case and his action while serving as assessor. He agreed to turn state’s evidence against the others. Both he and Brown testified before a grand jury in April 2011 that in May 2011 handed down a 29-count indictment naming Erwin and Biane; Mark Kirk, who had been Ovitt’s chief of staff; and Jeff Burum, one of two managing principals in the Colonies Partners. That indictment alleged that Erwin had assisted Burum in extorting Postmus and Biane to support the $102 million settlement through the use of blackmail, threats and intimidation prior to the vote, and that Burum, in conjunction with the Colonies Partners’ other managing principal Dan Richards, delivered $400,000 in bribes after the vote to Postmus, Biane, Kirk and Erwin, disguised as separate $100,000 donations to political action committees controlled by Biane, Kirk and Erwin and two $50,000 donations to two political action committees controlled by Postmus. Neither Ovitt nor Richards was indicted; the indictment alleged the $100,000 had been delivered to Kirk for delivering or influencing Ovitt’s vote in favor of the settlement.
From the outset of the case, knowledgeable observers contrasted the divergent treatment of Kirk, the chief of staff to one of the supervisors supporting the settlement, and Brown, the chief of staff to another supervisor whose support of the settlement was equally crucial. Brown, like Kirk, had set up one of the political action committees into which the alleged $100,000 bribes disguised as political donations in return for the settlement approval had been deposited. In the aftermath of his indictment, Kirk had been forced out of his position as Ovitt’s chief of staff. In 2010, more than ten months after Brown had begun surreptitiously recording his conversations with his boss, Biane learned that Brown was doing so. This created an uncomfortable situation in the office, and Brown filed a grievance over that treatment. He was put on paid administrative leave and within a few months provided with a transfer into the treasurer/tax collector/auditor/controller’s office, where he assumed the position of second-in-command, which entailed a raise in pay over what he had been making as Biane’s chief-of-staff. Unspoken publicly was that the transfer was intended to keep Brown in place and assure his continuing cooperation as a crucial witness in the evolving criminal case.
But during his testimony this week, it became apparent very early on that he was not providing the prosecutor examining him the answers she had anticipated, which the prosecution team had been counting upon to set up an important phase of their narrative of the defendants’ guilt.
On Wednesday, Brown came into court and was sworn in. Supervising Deputy California Attorney General Melissa Mandel handled the direct examination, which established in short order that he was still working for the county as assistant treasurer/tax collector/auditor/controller and that he had worked on Biane’s 2002 campaign, parlaying that into a position as Biane’s chief of staff after Biane defeated Jon Mikels in that year’s election for Second District county supervisor.
Brown acknowledged that the Colonies Partners were major donors to Biane’s election campaign.
Brown said he and Biane had been best friends and said the current trial and the difficulty it represents is an “unfortunate circumstance” but that “I’m comfortable with Paul.” In response to Mandel’s question he said he was not overjoyed at being there and said he was suffering from a cold.
Brown said Burum and Biane were in regular contact with one another following Biane’s election to the board. He testified that Biane was supportive of and hopeful toward the county settling the Colonies’ litigation from the outset of his time in office.
Brown said Burum had left a phone message for Biane in which he stated that “The damages clock is ticking,” meaning that delay in the settlement was costing money.
Mandel questioned Brown about the circumstances of an effort, in 2005, to settle the case for $77.5 million that went awry.
Brown said he heard Biane make no complaints about the performance of Munger, Tolles & Olsen or Jones Day, the law firms representing the county in the litigation against the Colonies Partners, the first of which vehemently protested the terms of the $77.5 million settlement proposal.
Brown said he knew former state legislator Jim Brulte and that Biane was in contact with him. Brown said he along with Biane had weekly meetings with the office of county counsel, the county’s in-house lawyers, in which they were kept abreast of developments in the Colonies Partners litigation. He said he did not attend the trial before Judge Peter Norell, but knew of it through media coverage. He said he understood that the county had an unfavorable outcome in the early stages of the litigation and that it had appealed. He had no recollection of whether Biane was in favor of pursuing the appeal.
He said he knew Patrick O’Reilly as the “owner of a public relations firm” from Riverside and that he may have met him previous to his work for Biane when he was on the staff of Congressman Ken Calvert as a result of their mutual attendance at political fundraisers during that time frame.
Asked if there had been contact between O’Reilly and Biane, Brown said, “Not that I recall.” Brown noted that O’Reilly had a contract to provide services to San Bernardino County and that he was also aware that O’Reilly had a relationship with Burum.
Brown testified that Biane from the outset had seen a settlement of the lawsuit with the Colonies Partners as a desirable outcome. With prompting from Mandel’s reference to his previous testimony before the grand jury, Brown said that when Ovitt was elected to the board of supervisors in 2004, Biane maintained that Ovitt was always viewed as another vote for settlement.
“Mr. Biane communicated that to you?” Mandel asked.
“Yes, he did,” responded Brown.
Brown said that Ovitt’s elected predecessor as Fourth District supervisor, Fred Aguiar, had been a consistent vote against settlement. Aguiar, who left the board to work as Arnold Schwarzenegger’s deputy chief of staff and senior advisor when the actor was elected governor in 2003, was succeeded by his wife, Patty.
“Mr. Ovitt was much more friendly and open to developers and development,” said Brown. “He was always seen as a friendly vote.”
Asked if Jim Erwin was involved in the Colonies settlement negotiations in the 2004 timeframe, Brown said, “Not that I recall prior to 2004.”
Mandel questioned Brown about Brulte’s involvement in the effort to bring about a lawsuit settlement, which culminated in a March 2005 meeting involving Postmus, Biane, Brulte, who was working for the Colonies Partners, Dan Richards and Jeff Burum. During that meeting, the lawyers from both sides were excluded during its closing stage and a tentative but never actuated $77.5 million settlement of the lawsuit was derived. Brown indicated that he could not recall whether he was aware of Biane meeting with Brulte in January 2005 or that there was a relationship between Brulte and Burum.
“Were you in contact with Mr. Brulte during that time period, January 2005?”
“I don’t think so,” said Brown.
“You were aware the county attorneys were not in favor of settlement” Mandel asked.
“That is correct,” said Brown. He said he was aware of the March 2005 meeting in which the lawyers were kicked out of the room.
“What did Paul Biane tell you about that meeting?” Mandel pressed.
“I don’t remember what he told me,” Brown said. “That was a pretty significant event when you look at the history of the litigation. It was probably a milestone event, but I can’t recall my conversation with Mr. Biane following that meeting.”
Before the $77.5 million settlement could be put into place, a memo from two of the lawyers with the law firm of Munger, Tolles & Olsen representing the county in the Colonies litigation, Stephen Kristovich and Paul Watford, was sent to the board of supervisors on April 4, 2005, stating the $77.5 million amount was excessive and that such a large settlement might prevent the county from recovering damages from the City of Upland, the county’s transportation agency known as SANBAG, and the California Department of Transportation, based upon those agencies’ participation in the issues that were at the heart of the Colonies Partners’ lawsuit.
The public outrage at the terms of the proposed settlement resulted in it never being consummated.
“What was Paul Biane’s reaction to the memo being leaked?” Mandel asked
“He was not happy,” said Brown, explaining, “It was an attorney client privilege document. It wasn’t for public consumption. It was a proposal. It was a draft. All the materials [were] marked privileged and confidential.”
“That was to remain confidential?” Mandel asked.
“That was my understanding,” Brown said.
One of the several pronounced points of prevarication in Brown’s testimony came in his answers to Mandel’s questions about the deterioration of the relationship between Biane and Burum as efforts at achieving a settlement stalled. Initially, Brown made no acknowledgment of any contretemps between the two. Referencing the summer of 2005, Mandel asked Brown “What was the relationship between Mr. Burum and Mr. Biane at that time?”
“They were friends throughout this entire process,” Brown said. “Mr. Burum was a supporter of Mr. Biane. I can’t tell you any time or date when there was a difference in that. I don’t know that there was any change in their relationship.”
It was not until Mandel referenced Measure P, a countywide voter initiative to raise the salaries provided to members of the board of supervisors sponsored by Biane in 2006 and which Burum actively campaigned against, that Brown acknowledged there had been any tension in the relationship between Biane and Burum.
“There were times when things were contentious, but they always remained friends,” Brown said. “I think things were contentious during settlement discussions. Like any settlement there were mediation sessions. There was contention at that time, the small period of time surrounding the settlement discussions. Paul was always in favor of settling. It was the parameters of the settlement that were the sticking point.”
Mandel made an effort to wring from Brown an acknowledgement that Burum’s effort to oppose Measure P, in which he spent $400,000, had represented a major break in the relationship between Biane and Burum, and provided the means by which Burum was able to pressure Biane to craft a settlement to be supported by his board colleagues. Brown obstinately resisted making such an acknowledgement. When Mandel asked him if he and Biane had devoted “a lot of time” working to get Measure P passed, Brown responded, “We couldn’t have, because we had a lot of other things to do. We had a lot of county business. It was a big issue to him [Biane] but we didn’t spend a lot of our time everyday working on it.”
Mandel then utilized previous testimony Brown had provided to the grand jury to contradict his statement. As Mandel’s examination and Brown’s testimony dragged on into Wednesday afternoon, particularly when it touched upon areas which cast either Biane or Burum in a harsh light, Brown grew steadily more resistant, such that he foreclosed her avenues of inquiry by asserting he could not recall events, statements, situations or conversations. Mandel sought to proceed by prompting Brown with passages of his previous testimony or statements to investigators, transcripts of which she provided to him to read while he was in the witness box but which she did not project on the court’s overhead displays nor make available to the jury or Judge Michael Smith. Instead, she referenced what Brown was reading by transcript compendium page number for the benefit of defense attorneys, who had to scramble to stay abreast of the material being alluded to. After several instances of this, defense attorneys registered objections, though Brown’s continued resistance to several of Mandel’s further questions resulted in her continuing to take recourse in the references to Brown’s prior testimony.
Mandel asked Brown, “Do you recall Mr. Biane talking about the Colonies [settlement] numbers being in the stratosphere?”
“I have no memory of that,” Brown said.
Mandel asked Brown “In September 2006, was Mr. Biane backing away from a settlement of the Colonies case?” She further asked if he recalled Biane saying that it had been a mistake to have attempted to forge a settlement on his own and that he should have involved the other members of the board in the effort and discussions.
“I just don’t remember those conversations,” Brown responded.
When Mandel pressed Brown on whether he was personally consistently against settling the litigation on the terms the Colonies Partners were insisting upon and had enunciated that opposition in the weeks leading up to the acceptance of the $102 million settlement, Brown said his position had shifted over the course of time. When Mandel offered him his statement from an April 26, 2009 interview with investigators in which Brown said, “I expressed to him [Biane] at various times my opposition, probably most vocally in 2006 when we had Measure P on the ballot,” Brown conceded, “It sounds like that was an accurate statement.”
By sheer force of will, it seemed, Mandel pushed Brown into making an acknowledgment that Measure P precipitated a sundering of the relationship between Biane and Burum.
“At some point in time was there some opposition to Measure P?” she asked.
“I don’t recall how I learned about it but there was a group that was formed to oppose Measure P,” Brown conceded. To Mandel’s questions as to the timing and whether it was in the summer or early fall of 2006, Brown evinced clarity, saying “It had to have been because someone showed up at the registrar of voters to put in an opposition statement.”
“Did Mr. Biane express to you about what he thought motivated the opposition?” Mandel asked. “Yes,” said Brown. “He said that Jeff was sponsoring the opposition because the Colonies litigation hadn’t been settled.”
“Did he say it [the opposition to measure P] was directly related to the Colonies litigation?” Mandel asked.
“Yes,” Brown said.
Did he say anything in particular about how angry he was?” Mandel asked.
“He said he was so angry he wanted to punch Jeff Burum in the nose,” Brown said.
Upon hearing this, Burum, who was seated at the defense table facing east, looked across to Biane, seated at the defense table ten or so feet way facing south, and both in jest raised their fists at one another. This elicited from Brown, in the witness box facing north, a chuckle.
Mandel, whose angle and position in front of the defense table prevented her from having a direct view of either Biane or Burum, reacted sharply, asking if Brown thought this was funny
“At the time, it wasn’t funny to Mr. Biane,” he said. “It wasn’t funny to me.”
“Mr. Biane was very angry about this?” Mandel inquired.
“He was very angry,” Brown said.
The pattern of Mandel seeking a response from Brown and encountering his inability to recall, followed by her presentation of one of his previous statements to trap him into a preset response appeared to build in Brown a resentment as it continued. His voice was sometimes tinged with anger when he was forced by Mandel to acknowledge a statement contained in his testimony six and seven years previous after he made a conflicting statement in his initial response to a question. By the end of the day’s testimony, his sense of impatience with his situation and Mandel in particular was palpable.
As was customary, he was obliged to remain in the courtroom when the two juries hearing the case filed out of the courtroom. While he was yet sitting in the witness box, Judge Michael Smith addressed him directly, suggesting he review his grand jury testimony that evening before returning the following morning to resume his testimony. Brown, who had previously indicating he was suffering from a cold, said that he intended to go directly to bed once he got home. There was a little further exchange between Brown and the judge about being sick, with the judge saying he understood and that he had been battling his cough for two weeks. Shortly thereafter, Mandel said something to the effect that she wanted to address the court and that she needed to wait until Brown left. As Brown walked by where Mandel was sitting at the prosecution table, Brown threw the transcript of his grand jury testimony down next to her. Before Brown made it out of the courtroom, Mandel called out to him, asking if he didn’t want to take the transcript with him so he could review it overnight. Without deigning to turn around he said, “No, I don’t,” and headed out the door.
There ensued a colloquy among the judge and the lawyers, led in the main by one of Burum’s attorneys, Jennifer Keller, but with input from Burum’s lead attorney, Stephen Larson, and Raj Maline, Erwin’s lead attorney, essentially challenging the fashion in which Smith had allowed Mandel to provide the witness with his previous testimony without the court [i.e., Smith] seeing what was referenced and not allowing the defense to inspect the passage and compare it to Mandel’s characterization of it in real time to determine the accuracy of her representation so appropriate and timely objections could be made before the jury is exposed to any prejudicial material. Smith offered something of a defense of Mandel, saying that under the circumstances, he was inclined to give the prosecution wide latitude in its examination. “I’m making a finding he [Brown] is being intentionally evasive,” Smith said.
This galvanized Larson, who countered that Brown was not being evasive but rather had come to the realization that information provided to him by the DA’s investigators had colored his previous testimony. Larson said that the heavy-handed techniques by the investigators had induced several prosecution witnesses to lie in order to “save their own behinds from going to prison.” Smith responded that on cross examination Larson would have an opportunity to elicit testimony that “he [Brown] was lying to the grand jury for self-preservation.”
In her response, Mandel cited Brown’s “chuckling to the defendants [and] his body language” in suggesting Brown was in league with the defense. “He professes no memory of anything,” Mandel said. “This is a very different Mr. Brown than we expected to see. Obviously, something has gotten to him.”
Larson took offense to this, responding, “Mr. Brown was beaten up pretty badly by the investigators when he was giving those statements. Maybe ten years of finding out there is no substance to this case is what has gotten to him.”
When Brown returned to the witness stand the following morning, he came across as being in a more favorable mood and tolerated the questions being asked of him by Mandel with a somewhat more even bearing than he had during the afternoon of the previous day, although he continued to take recourse in memory failure in deflecting many of her questions. Mandel, nonetheless, persisted, using, when it suited her purpose, passages from his previous grand jury testimony and interviews with investigators to extract information from him.
Some of these questions involved the San Bernardino County Young Republicans, which was the recipient of the $100,000 donation from the Colonies Partners intended for Biane in 2007. The prosecution alleges the $100,000 was a bribe to Biane in exchange for his support of the settlement.
Mandel asked Brown about the San Bernardino County Young Republicans PAC and marched him through all of the initial contributions to the committee. Brown said he had been the founder and had set it up, implying without stating that he was in control of it. Mandel continued to circle back, however, showing that the original money deposited into its account came from Biane’s campaign committee. Mandel led Brown into reluctantly acknowledging Biane had control over the San Bernardino County Young Republicans, using a quote from his earlier testimony that “We always had a clear understanding between the three of us [Biane, Brown and Tim Johnson, another Biane staff member] that the PAC would be used to support his [Biane’s] campaigns.”
Mandel asked Brown why Biane needed a PAC when he had his own campaign account, which he already controlled. Brown said the San Bernardino County Young Republicans existed not just to support Biane’s campaign, but also other candidates and political causes countywide.
With regard to the $100,000 contribution to the PAC from the Colonies Partners, Brown in his initial response to Mandel’s question, said that Biane “seemed surprised” when he found out about the contribution. Brown also sought to minimize the significance of the amount.
“It wasn’t out of line with what other people were contributing in the county,” he said. Mandel then confronted him with his grand jury testimony to the effect that both he and another Biane staff member, Tim Johnson, were surprised by the $100,000 contribution from the Colonies Partners to the San Bernardino County Young Republicans but that Biane was not surprised.
Brown further testified that Biane had aspirations for higher office.
“What were Paul Biane’s political aspirations?” Mandel asked. “Did Paul Biane communicate to you that he wanted to run for Congress?”
Brown acknowledged that was the case “I don’t know the number of times we discussed it,” he said.
“That was an ambition he communicated to you?” Mandel asked.
“Correct,” Brown said.
During some of his testimony, Brown managed to enlarge his resistance against the direction Mandel was pushing him, saying or insinuating that his previous testimony might not have been fully accurate.
One such example was when Mandel questioned Brown about the relationship between supervisor Gary Ovitt and his chief of staff, Mark Kirk, whom Brown saw often in his capacity as Biane’s chief of staff. Mandel was seeking to verify reports, and the prosecution’s theory, that Kirk held a significant degree of sway over his boss to the point where he could and did influence his votes, in particular the one in favor of the Colonies lawsuit settlement.
Citing an April 26, 2009 interview he had with district attorney’s office investigators, Mandel quoted Brown as saying about Kirk, “He tries to bully people.”
“I don’t recall making that statement,” Brown said.
“Is it your recollection that he would bully people?” Mandel pressed.
“He was assertive,” Brown retorted. “He would speak his mind, but I don’t think he would bully people. Mark was the guy who drove the agenda out there, pushing to get things done, coming up with the ideas, implementing the ideas.”
Determined to impress upon the jury that Kirk had influence over Ovitt, Mandel read from the interview another statement Brown made about Ovitt, that Ovitt “was a nice man but doesn’t have leadership qualities.” Brown acknowledged that he had made the statement nearly eight years ago.
Another element of the prosecution’s theory of guilt that Mandel endeavored to explore with Brown was that pertaining to Erwin’s role in influencing Postmus. She asked if Erwin was acting as a go-between to keep Postmus in communication with Burum and whether Postmus was leaking information from the board’s closed sessions, including the county’s position with regard to the Colonies litigation, through Erwin to Burum.
Brown deflected the question by acknowledging there were leaks but said that “in the government center there are leaks. Everyone talks and if you are paying attention, you are going to hear a lot.”
Mandel then asked Brown if he remembered “expressing concern Mr. Postmus would come out of closed sessions and tell Mr. Erwin everything?”
“I don’t recall expressing that,” said Brown.
Mandel then provided Brown with previous testimony to that effect, and he said, “That’s what I testified, but I don’t recall it today.”
Brown also said he did not recall his previous testimony that Erwin and Postmus were so close that they seemed like brothers.
Brown acknowledged that he and Postmus were friends and Republican cohorts. It was in his statements about Postmus that Brown may have inadvertently provided the prosecution with material that might prove damaging to the defendants. A portion of the prosecution’s theory is that the Colonies Partners, through O’Reilly and Erwin, were blackmailing Postmus and Biane. The extortion of Postmus pertained in part to his drug use, which prosecutors allege Erwin and Burum were threatening to expose.
Of Postmus, Brown said, “In 2006, he was clearly under the influence of some type of drug during business hours.” He said the first tangible proof of that came one afternoon when he and Biane had gone out to lunch with him. “He was driving us to lunch,” Brown said. “In the backseat was a box, a clear tackle box. You could see through it. It was just full of prescription medications.”
Asked when his friendship with Postmus ended, Brown said, “I think at the time he realized I was providing information to the district attorney’s office about him.”
This proved the segue that Mandel used to bring to the jury’s focus information that was known to just about everyone else in the room, except the jury: that Brown had betrayed Biane in 2009 by working undercover with the district attorney’s office in trying to gather information implicating his boss in bribe taking.
The previous day, early in his testimony, Brown had responded to questions by Mandel by indicating that he had been very close to Biane, and still considered him a friend. At one point he called Biane his best friend and at another referenced him as one of his three closest friends. He had also told Mandel at the time that he had not spoken to Biane since 2010, a curious anomaly that might not have escaped the jurors.
On Thursday, the explanation for that anomaly arrived when Mandel asked Brown point blank if he had worn “a wire” to target Biane. Brown corrected her, saying he had used a “microcassette recorder” to surreptitiously capture Biane’s utterances. There ensued a full acknowledgement of what occurred.
To Mandel’s question, Brown said he had “cooperated” with district attorney’s office investigators, implying at one point he had done so “freely,” while stating he had never been arrested. Nevertheless, this left open the question as to whether he was doing so under the threat of arrest or of being charged.
“Would you agree, generally speaking, that through 18 interviews you participated in, your demeanor was significantly different than during this trial?” Mandel asked.
“It was an interview, not a trial,” Brown responded.
At that point, the basis for some of the hostility Brown had toward the prosecution poured forth. He said he had to “repeatedly” tell the lead investigator on the case, Hollis Randles, that he was cooperating in the face of Randles’ statements and insinuations that he was “holding something back.”
Reliving on the witness stand his exasperation from some seven years ago, Brown intoned, “Why do you think I had to repeatedly tell him that?”
“What was your feeling about the way you were treated in that interview?” Mandel asked.
“I thought I was treated poorly,” Brown said.
“Why?” Mandel asked.
“Because Mr. Randles’ approach is more to attempt to interrogate rather than interview,” he said.
Mandel asked when he felt that way.
“Probably about five minutes into my first interview with him,” Brown said, going on to say of Randles that “He has a practice of essentially characterizing events and requiring that you agree or disagree with his statement. He used that throughout his interviews. Nothing was ever good enough for him. He was always critical and acting like I wasn’t being forthcoming,” even though, Brown said, “I gave him everything I had.”
Brown said he was so taken aback by Randles’ approach that he retained San Bernardino attorney Sanford Kassel following his first interview. Kassel contacted deputy district attorney Lewis Cope, who is prosecuting the case with Mandel. Brown said he continued cooperating with the district attorney’s office after Kassel made an arrangement with Cope for him to do so.
Brown was not charged or named in the indictment in contrast to Kirk, who was. In addition, after Biane discovered Brown had been tape recording his conversations with him, Brown was put on paid administrative leave for three months and was then transferred to the county treasurer/tax collector/auditor/controller’s office, where he was installed in the second highest position in that office at an annual salary of $144,289.56 per year and provided with $23,052.89 in benefits, for an annual total compensation package of $167,342.45 annually. Thus, in the six-and-a-half years he has remained in the county in the capacity of assistant treasurer/tax collector/auditor/controller, Brown has made $1,087,725.92, money top county officials were willing to provide him to ensure that he would testify as a prosecution witness.
In her questioning of Brown, Mandel stated, “You were never arrested. You were free to walk out the door at any point, to which Brown retorted, “I didn’t feel that way after my attorney promised I would cooperate.”
Mandel asked, “Did you continue to cooperate in providing information?”
“I agreed to interviews,” Brown said.
“Did you carry a microcassette recorder?” Mandel asked. “Did you attempt to secretly record conversations with Paul Biane?”
“Yes,” said Brown.
“Did you attempt to secretly record conversations with Bill Postmus?” she asked.
“Yes,” said Brown.
Mandel then confronted Brown with statements he made to investigators in 2009 that indicated his belief Biane had acted criminally and spelled out his unequivocal intent to betray the politician who had employed him as his chief assistant for more than seven years, in which he said he “wanted them [the investigators and prosecutors] to succeed” so they “clean this place up.”
It was unclear whether Mandel’s direct examination of Brown is at or near being closed. After the juries and Brown exited the courtroom on Thursday, she sought clearance from Judge Smith to utilize a statement provided by Brown during one of his previous rounds of testimony before the grand jury to impeach a prosecution witness who previously testified, Tim Johnson.
Given Brown’s lack of cooperation with Mandel this week and the prospect of the damage defense attorneys will attempt to inflict on the prosecution during their cross examination of Brown next week, there is consternation among county officials and the higher levels of the district attorney’s office over the faith they had, and the $1.08 million investment they have made, in Brown over the last six-and-a-half years. Any decision on terminating Brown from his county position over the next several weeks will officially be made by Oscar Valdez, the county treasurer/tax collector/auditor/controller who last year succeeded Larry Walker, who in 2010 acceded to pressure placed upon him by county chief executive officer Greg Devereaux and district attorney Mike Ramos to terminate his longtime assistant, Betsy Starbuck, and replace her with Brown.
Earlier this week, on Tuesday, former San Bernardino County Assistant District Attorney Clyde Boyd testified that Jim Erwin had his permission, which was casually granted while the two were at dinner with their wives in Palm Springs in January 2007, to use his name as an officer in a political action committee Erwin formed. Ultimately, that PAC, the Committee for Effective Government, was endowed with a $100,000 donation from the Colonies Partners which prosecutors allege was a payoff for Erwin’s assistance in obtaining the lawsuit settlement.
There are two juries hearing the case, one for Erwin and the other considering the guilt or innocence of Burum, Biane and Kirk. Testifying only before Erwin’s jury, Boyd said that Erwin, who had just been named as assistant assessor by Postmus in January 2007, told him he was forming a political action committee and he asked Boyd if he would let him sign Boyd on as a member of the PAC. Boyd said he assented to doing so.
“He just mentioned that he was going to form a PAC, and that he had a form he needed to fill out for the state, where he had to put five or six names down on this form to send back to the state, and he was going to put us all down on the form,” said Boyd, who retired from the district attorney’s office in 2013. Boyd said that Erwin told him the committee would be classified as a PAC controlled by a single person, so that Boyd would have no duties as a signer.
“Did you in fact give him permission to use your name?” Mandel asked.
“Yes,” said Boyd, who said that was the last he heard of the PAC until he was questioned about it in July 2009 by district attorney investigators.
Burum’s attorney Jennifer Keller and Erwin’s attorney Raj Maline inquired if Boyd trusted Erwin. “I had no particular interest or reason to be concerned,” Boyd said in response to Keller, who further elicited from Boyd that Erwin had not been secretive about the formation or existence of the committee. Boyd responded to Maline that he trusted Erwin.
Lynda Cassady, former chief of the state Fair Political Practices Commission’s external affairs and education division, also testified on Tuesday. She said candidates for public office or elected officials are restricted to having only one campaign account and should not exercise influence over any other committee’s activities.
Cassady testified that PACs are not required to have bylaws. She said that the controller of a PAC can serve in the capacity of a consultant to the PAC and receive money for that service, as Kirk and Erwin were previously demonstrated by Mandel to have done.
It is illegal for campaign contributions, Cassady testified, to be funneled or laundered through PACs to conceal the actual source of the contribution.