Defense Seeks To Exploit Reluctant Witness In Week 8 Of Colonies Trial

By Ruth Musser-Lopez & Mark Gutglueck
In the eighth week of the Colonies Lawsuit Settlement Public Corruption Trial, defense attorneys pushed to build on the momentum they had appeared to pick up last week when a key prosecution witness bridled in that role and frustrated the prosecutor seeking to elicit from him the answers he had provided to previous grand juries in 2009 and 2011, as well as in statements made to district attorney’s office investigators in the 2009-2010 timeframe.
That witness, Matt Brown, had been the chief of staff to former county supervisor Paul Biane, who is now a defendant in the case along with Colonies Partners co-managing principal Jeff Burum, former sheriff’s deputies union president/former assistant assessor Jim Erwin and Mark Kirk, who was the chief of staff to former supervisor Gary Ovitt.
Articulated in a 29-count indictment handed down in May of 2011 are prosecutors’ contentions that that Erwin had assisted Burum in extorting Biane and another former member of the board of supervisors, Bill Postmus, to support a $102 million settlement of a lawsuit 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. Prosecutors maintain Burum was able to wring the $102 million from the county and its taxpayers through the use of blackmail, threats and intimidation prior to the vote, which took place in November 2006, and that Burum, in conjunction with the Colonies Partners’ other managing principal Dan Richards, delivered $400,000 in
bribes to Postmus, Biane, Kirk and Erwin after the vote. Those bribes, prosecutors say, were 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. The settlement was supported by Postmus, Biane and Ovitt and was opposed by then-supervisor Dennis Hansberger and supervisor Josie Gonzales. 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.
Brown created the San Bernardino County Young Republicans political action committee, which prosecutors allege was actually controlled by his boss, Biane. The San Bernardino County Young Republicans committee was the recipient of one of the $100,000 contributions from the Colonies Partners which prosecutors maintain were bribes.
But last week, nearly eight years after Brown made that decision to cooperate with investigators and betray Biane, who had elevated him to the position of chief of staff in his office and whom Brown in his testimony described as his best friend, Brown came across as reluctant to fulfill the role the district attorney’s office had taken as an article of faith he would live up to. To dozens of questions put to him by Supervising Deputy California Attorney General Melissa Mandel, Brown responded that he did not know or that he could not remember. Generally, the questions being asked of him were ones he had fielded before, during his appearances before two grand juries, one in 2009 and another in 2011. It was at least partially on the strength of those previous statements that the indictment had been handed down and prosecutors had expected that he would essentially recapitulate his earlier testimony, this time in front of the two juries that are hearing the case.
Brown’s comportment in the witness box under direct examination was not a total loss for the prosecution team, as Mandel was on occasion able to salvage part of the narrative from Brown she had hoped to have him freely and fluidly provide the jury by having him read transcripts of his grand jury testimony or statements to investigators to refresh his recollection before she would then direct questions to him. By quoting passages of that testimony or those statements, she was able to prod him into grudging answers that paralleled his previous testimony that was in some measure damaging to the defendants. But that process was both tedious and awkward and in some of his responses and remarks Brown was able to express or cast doubt with regard to the complete accuracy of his previous statements. Moreover, by his demeanor, Brown was outwardly conveying that he was being forced to testify contrary to his own volition. This, combined with his assertions he vouchsafed in his testimony that he been bullied and intimidated by the district attorney’s investigators, conveyed the impression that he might have previously been telling investigators what they wanted to hear rather than what he knew or believed to be the truth. Mandel had been so frustrated by Brown’s intransigence that at the close of his first day of testimony after he and the jury had exited the courtroom, Mandel told Judge Michael Smith that “This is a very different Mr. Brown than we expected to see. Obviously, something has gotten to him.” Smith concurred, stating, “I’m making a finding he [Brown] is being intentionally evasive,”
For the two days Brown was on the witness stand last week, he was subject exclusively to direct examination by Mandel, relegating the lawyers for the defendants into the limited role of raising sporadic objections to Mandel’s questions with regard to either form or substance, which Judge Smith only intermittently sustained. Thus, defense attorneys arrived in Judge Smith’s courtroom on Tuesday morning, following the extended Presidents Day Holiday, chomping at the bit and loaded for bear, anxious to blast the crack that had been revealed in the prosecution’s armor into a gaping hole. Yet, their cross examination would require a degree of finesse, forbearance and agility, as the aggressive line of questioning that had been under preparation for months was now deemed inoperative in light of the Brown’s bearing and the apparent hostility he had evinced on the stand toward Mandel.
Indeed, Brown’s tenure as a witness at the trial would evolve to feature what can be described as surreal overtones, as the prosecution on occasion found itself seeking to impeach its own witness while the defense filled the role of seeking to uphold the credibility of an individual who had been instrumental in assisting investigators and prosecutors in assembling the case against the accused.
Mandel concluded her direct examination of Brown Tuesday morning by using his previous statements extrapolated from his grand jury testimony to impeach another prosecution witness, Tim Johnson, also a Biane staff member whom Brown had overseen and who succeeded Brown as chief of staff when Brown departed Biane’s office in 2010 after it was discovered he was cooperating with the district attorney’s office investigators in trying to ensnare his boss. Defense attorneys were then free to cross examine Brown.
Stephen Larson, the lead defense attorney for Jeff Burum was able to elicit from Brown that he was essentially unconvinced, despite the suggestions of district attorney’s office investigators to the contrary, that there had been anything improper or illegal about the $100,000 contribution his San Bernardino County Young Republicans political action committee received in June 2007 from the Colonies Partners. Larson doubled down, getting Brown to say as well that he did not believe there was anything illegal about the county’s $102 million settlement with the Colonies Partners.
Whereas Brown’s spotty memory of his testimony and statements to prosecutors and with regard to the events now going back more than a decade greatly hampered Mandel, Larson was able to capitalize, to a certain extent on it, seeking to show the jurors that there was nothing unnatural, forced, falisfied or contrived about his memory loss, since his last appearance before a grand jury in the case came nearly six years ago in 2011, his testimony before a previous grand jury in 2009 was nearly eight years past and that the underlying civil case between the county and the Colonies Partners occurred over a period going back 11 to 15 years ago. Larson pointed out that as early as 2009 Brown was telling investigators that there were events relating to the matter and the events leading up to the settlement of the case in 2006 he could not recall at that time.
“Your memory did not improve over time, correct?” Larson asked.
“Correct,” Brown said.
What was revealed was that Brown was interviewed/interrogated by district attorney’s office investigators, who were in the main led by Hollis Randles, nine times in person and 12 times over the phone from April 2009 through April 2010, totaling 20 hours of recorded conversations. Many of those contacts with the investigators related to efforts by Brown to tape record Biane, and on at least two occasions, Postmus. All told, between September 2009 through April 2010, Brown compiled 87 surreptitiously recorded conversations totaling about 26 hours, most of those with Biane. At this point it is not clear exactly what is on those tapes and whether Biane or Postmus made any statements implicating themselves. There have been vague indications that the effort by Brown proved futile, or essentially futile, as evinced by his testimony that he was telling Randles at multiple stages of his undercover work that there was not any substance to the suspicions and accusations against Biane and Postmus.
Larson referenced a February 8, 2010 interview with Randles, in which Brown said there had been no bribe offered by Burum in return for votes to approve the settlement, what was termed a quid pro quo.
“You told him that many times?” Larson asked.
“Yes,” Brown said.
When Larson attempted to push beyond what Brown’s thoughts and perceptions were and get to what substance was on the tapes and whether Biane and Postmus had made incriminating statements or not, he was stopped short. Larson asked Brown what Postmus and Biane told him. Mandel objected, citing those statements as hearsay. Judge Smith sustained the objection. Smith’s second such ruling to that effect had a visible impact upon Larson, whose countenance and body language registered perturbation, a manifestation not typical in the patrician Larson. Shortly thereafter, with the jury no longer present, Larson in strong terms registered his protest at not being able to explore before the jury the tape recorded evidence Brown had accumulated at the behest of investigators, asserting that Postmus and Biane telling Brown there was never any quid pro quo was a key element of the defense he is mounting on behalf of his client and that under the circumstances it was evidence that is admissible. Larson, who was a federal judge before returning to private practice seven years ago, was able to soften no soap with that argument and Smith upheld his ruling that as hearsay, the evidence would not be presented to the jury.
Larson, in his further cross examination of Brown, focused on an area already raised during Mandel’s direct examination of Brown, much to her chagrin, pertaining to the fashion in which the investigators, in particular lead investigator Hollis Randles, browbeat and sought to intimidate him, while seeking to extract from him statements to further the case they were attempting to build, despite Brown’s repeated assertions that the words they were laboring to place in his mouth were not true.
“They were trying to get you to change your answers, correct?” Larson asked Brown.
“Correct,” Brown said.
Though Larson is representing Burum, he forayed into areas of the case pertaining to the other defendants nearly as much as he dwelled on the charges against his own client. One of these was the prosecution’s contention that Biane had secretly controlled the San Bernardino County Young Republicans PAC, one of the recipients of the $100,000 contributions made by the Colonies Partners in 2007 which prosecutors have characterized as disguised bribes.
Brown acknowledged that Brown had control over the political action committee along with him and another Biane staff member, Tim Johnson, but indicated there was nothing secret about it and that Biane had openly and actively raised the majority of money brought into the PAC, which is an acronym for political action committee. Brown said Biane was completely open about that activity.
Larson also succeeded in getting Brown, whose idea it was to create the San Bernardino County Young Republicans club and its accompanying PAC, to controvert another element of the prosecution’s theory.
“It wasn’t created to receive bribe money, was it?” Larson asked.
“No,” Brown said.
As to the $100,000 PAC contribution, Brown said he received a phone call from Colonies’ co-managing partner Daniel Richards in 2007 alerting him to the contribution and that Richards said he wanted to personally inform Biane of the contribution. This had significance because Mandel earlier made much of the consideration that Biane had not expressed surprise about the large scale donation, implying that Brown had an expectation of receiving the money in return for his vote in favor of the settlement. Brown’s statement seemed to elucidate that Richards had already told him it was coming.
Brown also told Erwin’s attorney, Raj Maline, he repeatedly denied there was any wrongdoing involving the Colonies’ settlement and the PAC contributions.
Biane’s attorney, Mark McDonald, succeeded in having Brown state that Biane, who had professional experience in the real estate market, was able to rely upon his own knowledge with regard to the decision-making process regarding the Colonies Lawsuit settlement, at least insofar as land values were concerned.
After the defense attorneys concluded their initial round of cross examination on Wednesday, Mandel on redirect sought to limit the damage, coming back at Brown by focusing him on elements of his previous testimony before the grand juries that clashed with his current estimation that the settlement was kosher and there was nothing illegitimate or illegal about the Colonies Partners providing $400,000 to those involved in approving the $102 million payout or Kirk and Erwin, who influenced those who approved it.
Referencing Brown’s 2009 testimony before the first grand jury to hear the matter, Mandel succeeded in getting Brown to acknowledge he had testified at that time that “I believe there was something that was inappropriate about that settlement.”
Mandel revisited other elements of Brown’s previous testimony and statements, including his statement that the Colonies Partners’ use of the press in the months and weeks before the settlement was reached was “unusual” and used to stampede the board of supervisors into a settlement. When Brown said he did not recall saying that, Mandel read from his testimony in which he indicated that the Colonies Partners used press accounts to propound that the county was potentially on the hook for $300 million in damages in the lawsuit. “It was only a couple of weeks time that they went from $300 million to when they settled for $102 million,” Brown had said “Big show; they settled for a third. I never heard that $300 million figure until I saw it in the paper.”
Mandel asked, “So your testimony was that this use of the press was a public relations show to cover the settlement?”
“Yes,” said Brown. “It appears to be my opinion at the time.”
Mandel asked Brown if he remembered that “during the 2006 timeframe there were public statements by Mr. Burum” to the effect that he [Burum] “would fire them [Biane, Postmus and the rest of the board of supervisors] if they worked for him?”
Brown said he did.
Mandel asked if it was Brown’s “understanding that Mr. Biane would continue to receive financial support from Mr. Burum if he voted against the settlement?”
“I don’t recall,” Brown said.
Mandel then boldly sought to impeach Brown over his assertion that he had never believed nor ever told the investigators or the grand jury that bribery involving the board of supervisors in conjunction with the settlement of the Colonies Partners’ lawsuit took place.
“You were asked a lot of questions about whether a quid pro quo occurred,” Mandel said. “You said ‘No.’ Is that right?”
“Yes,” Brown responded.
“That was your opinion,” Mandel said. “You told Bud [i.e., Hollis] Randles there was never any quid pro quo regarding that contribution?”
“Yes,” said Brown.
“This was specifically about the $102 million?” Mandel asked
“Yes,” said Brown.
“You were bewildered why they were not understanding your answers, right?” Mandel asked.
“I did not understand why they kept asking me,” Brown said.
Then Mandel sprung. “Five months earlier, to the grand jury, you testified that you believed there was a quid pro quo.”
“I don’t recall that,” said Brown.
Mandel then referenced page 78 of Brown’s 2009 grand jury testimony to demonstrate that he had said just that.
Brown endeavored to recover from Mandel’s snake bite.
“It was only my opinion,” Brown said. “There was no factual basis to prove it, but I believed there was something inappropriate regarding that settlement. I believed that there was something illegal regarding Mr. Postmus and Mr. Burum.”
Brown acknowledged that he testified as to the existence of a quid pro quo to the grand jury. “Then you went on for about three-and-a-half pages as to why you thought there was a quid pro quo,” said Mandel as Brown read over his grand jury testimony. “You testified that others had been receiving money, others that were a part of the settlement. That concerned you. You then did proceed to list a number of factors that caused your concern and then your conclusion that there was a quid pro quo. Did you then testify to the grand jury about your basis that there was a quid pro quo?”
“I haven’t read it yet,” said Brown.
“Okay, go ahead and read,” said Mandel. When Brown concluded reading, she said, “Did you list a number of factors that brought you to that conclusion?”
Brown responded, “Not specific factors.”
“But did you then go on that there was a number of factors that led you to believe that there was a quid pro quo?”
“Correct,” said Brown.
“You knew there was the appearance of a payoff?” said Mandel.
“Yes,” said Brown.
During their next round of cross examination of Brown, the defense attorneys worked to reestablish that Brown’s statements in the past implicating the defendants reflected only, on one hand, his former opinion that was informed by rumors or, on the other hand, his efforts to placate his interrogators to get them off his back.
Larson on Wednesday seized upon Brown’s own words, getting him to reassert that he had told district attorney’s office investigators there was “no factual basis” to support his once-stated opinion that “something illegal happened.”
Larson pushed further on the theme of rumors having colored Brown’s thinking early on during his interaction with the investigators and his decision to cooperate with them and accede to their request that he employ the audio recording device to target Biane and Postmus. One such rumor, he told the jury in response to Larson, was one pertaining to Judge Peter Norell’s inappropriate contacts with the Colonies Partners at the Red Hill County Club. Norell had been the judge who oversaw the early stages of the civil litigation between the Colonies Partners and the county.
“Later, I found out that the rumor was not true,” said Brown.
With regard to Brown’s statements before the grand jury to the effect that the Colonies settlement was tainted by graft or bribery, Larson asked, “You speculated before the grand jury?”
“Yes,” said Brown. “I think it was my opinion and I trusted my gut feeling.”
“It turned out to be wrong?” Larson asked.
“Yes,” said Brown.
“And Ms. Mandel knows that is wrong?”
Brown did not have time to answer before Mandel sharply objected and Judge Smith sustained her objection.
Before Brown was dismissed pending being recalled, Mandel had one further go-round with him, this time outside the presence of one of the two juries hearing the case. Erwin’s guilt or innocence is to be determined by one panel. The other is to decide the fate of Burum, Biane and Kirk. This is because some earlier statements by Erwin are admissible only against him and not against the others.
With Erwin’s jury present in the courtroom and the other panel dismissed, Mandel questioned Brown about a conversation he had with Erwin in May of 2007 in the café located on the ground floor of the county’s administrative headquarters. In 2009, Brown told the grand jury that in that exchange, Erwin told him he had acted as a go-between for Burum during the Colonies settlement negotiations with the county, and that Burum had hired private investigators to rummage through Biane’s trash. Brown said that Erwin maintained the private investigators found numerous credit card statements that were past due and that Biane was in arrears on his bills. Brown had testified that Erwin claimed he had convinced Burum to not send out to the county’s voters mailers that made use of the information the private investigators had gathered as part of the campaign Burum was waging against Measure P, which was a 2006 countywide ballot measure sponsored by Biane to increase supervisors’ salaries from $99,000 per year to $151,000 annually.
The information about Erwin and Burum using private investigators to dig up derogatory information about Biane dovetails with accusations contained in the indictment, which holds that Burum and Erwin sought to extort Postmus and Biane into supporting the settlement through blackmail and threats before the settlement was arrived and that Burum then kicked back to Postmus, Biane and Kirk after the settlement was voted upon.
“He told me Jeff Burum had hired a private investigator to dig through Paul’s trash and they found numerous credit card bills,” Brown said. Brown said that Erwin said Biane needed the added income Measure P would offer because he couldn’t pay his bills and that as part of the campaign against Measure P Burum wanted to “expose Paul’s personal debt.”
When Erwin’s attorney, Rajan Maline, followed up on those statements, Brown told him Erwin did not show him and he never actually saw the mailers. Maline also got Brown to say that he did not find Erwin’s claim to be wholly believable.
Maline sought to reinforce that by using the courtroom’s overhead projector to show an aerial photograph of Biane’s home at the end of a cul-de-sac located in secluded neighborhood in the foothills of north Rancho Cucamonga. In doing this, Maline was attempting to illustrate for the jury that gaining access to the Biane household’s trash without being noticed would have been a challenge. Maline asked Brown if Biane had a dog at that time and Brown said Biane had a boxer.
An illuminating portion of testimony during Brown’s last day on the stand came when he was asked about the effort put on by the team supporting Measure P to ensure the initiative’s passage. Biane and Brown were the major components of that team. Brown testified that in addition to providing the argument in favor of Measure P, which concentrated not on the salary increase for supervisors that it entailed but rather its three-term limitation provision, they had also sought to write the argument against Measure P. They intended to offer a weak argument against the measure but were thwarted when a committee that was sincerely against the measure submitted an argument against it, and the county registrar of voters office held a coin flip to decide which argument would be published in the 2006 sample ballot delivered to voters countywide. As it turned out, Biane and Brown lost the coin flip. Nevertheless, Measure P did pass and Biane got his $52,000 per year raise.
Briefly testifying on Wednesday was Colin McKenzie, who was once the treasurer for the sheriff’s deputies union, the political action committee for which was a recipient of in excess of $400,000 from the Colonies Partners over the years. McKenzie was unable to explain why a state campaign finance reporting document the union filed with the state and the county showed Patrick O’Reilly, with his last name misspelled O’Riley, as an officer in the political action committee associated with Biane, the San Bernardino Young Republicans.
Late Wednesday and all of Thursday, Former San Bernardino County Administrative Officer Mark Uffer, who had occupied that position when the lawsuit settlement with Colonies Partners was effectuated, testified. His questioning was handled by another member of the prosecution team, San Bernardino County Deputy District Attorney Lewis Cope.
Uffer shored up a portion of the prosecution’s theory pertaining to Kirk, essentially that Kirk exercised something akin to a Svengali-like hold over Ovitt, such that he had influenced him to vote in favor of the lawsuit settlement. Uffer said that Kirk “drove the agenda” in Ovitt’s office, and that Ovitt passively went along with Kirk’s dictates, despite the consideration that Ovitt was actually Kirk’s boss.
“Mr. Kirk essentially dominated the office,” Uffer said, adding it was “always uncomfortable to go into that office because you couldn’t deal with Ovitt directly.”
The most dramatic passage of Uffer’s testimony came when Cope asked about a change in the behavior of Bill Postmus in 2005. Uffer had already said that upon his first going to work as the administrative officer in 2004, Postmus was engaged and involved. He noted that this changed dramatically in 2005. The change, involving extraordinary behavior and a radical alteration in his demeanor, was readily apparent, Uffer testified, upon Postmus’ return from a China trade mission in late 2005.
He was called to meet with Postmus, Uffer said, and he walked from his office to Postmus’s office and waited outside the door because Postmus had yet to arrive at the government center. Postmus came up to the fifth floor and walked past Uffer and into his office without greeting him, Uffer said. Postmus was “somewhat disheveled” Uffer reported. “His hair was all messed up, one shirt tail was out. He had a handful of cigars. He smelled bad, like he hadn’t bathed in awhile, and he was unshaved,” Uffer said. As Uffer followed Postmus into his office, Postmus walked around his desk, threw the cigars he was carrying into a humidor, and sat down. Without pausing for niceties, Postmus blurted, “We have to settle this Colonies lawsuit right away,” Uffer said. Uffer said Postmus did not give any explanation for the ugency.
“I can only describe it as a bizarre encounter,” Uffer said. From that point on, Uffer said, Postmus came across as “consumed” with having to effectuate the settlement.

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