Nearing End Of Colonies Case, DA & AG Depending On Postmus & Aleman

In the twentieth week of the Colonies Partners Lawsuit Settlement Public Corruption Trial, the case’s star witness, former county supervisor/assessor Bill Postmus concluded his testimony upon his tenth day on the witness stand. He was immediately followed by his one-time protégé, Adam Aleman. In tandem, Postmus and Aleman provided the two juries hearing the case with more of the substance contained in the criminal complaint than all 33 previous witnesses heard during the more than four months of proceedings since the trial began in January. Much of Postmus’ testimony was problematic, for not only the defense but the prosecution, as well. Indeed, his first two-and-a-half hours on the stand while he was under direct examination by San Bernardino County Supervising Deputy District Attorney Lewis Cope played out as an encapsulation of the case, in particular that portion of the case against defendants Jeff Burum and Jim Erwin. But under subsequent cross examination by Burum’s attorney Jennifer Keller and to a lesser extent Erwin’s attorney Raj Maline, Postmus backtracked considerably, offering statements that fell slightly short of a recantation but nevertheless at least partially undercut elements of the prosecution’s narrative and its overarching theme. Still, Keller’s impeachment of Postmus was based
upon demonstrating the unreliability of his memory, which was ravaged by nearly a decade of drug abuse. This, paradoxically, undercut her own success when she wrung from Postmus statements that favored the defense, especially after the other member of the prosecution team, California Supervising Deputy Attorney General Melissa Mandel, later questioned Aleman with regard to those same issues. Aleman, his memory unhampered by the cloud of drug use, offered recollections of meetings, events and statements with a crispness and clarity that were far more favorable to the prosecutors and damning to the defense.
The criminal case against the four defendants contained in the 29-count grand jury indictment handed down in May 2011 alleges Colonies Partners co-managing principal Jeff Burum, after four years of being unable to resolve a lawsuit his development company had brought against the county over flood control issues at the Colonies at San Antonio and Crossroads Colonies residential and commercial subdivisions in northeast Upland, conspired with former deputy sheriffs’ union president Jim Erwin to extort Postmus, the then-chairman of the board of supervisors, and the then-vice chairman of the board of supervisors, Biane, by threatening to reveal in mailers to be sent to voters throughout the county highly derogatory personal information about both of them. After Postmus and Biane acceded to this blackmail and voted with then-supervisor Gary Ovitt in November 2006 to approve the $102 million lawsuit settlement, according to the indictment, Burum then provided Postmus, Biane, Erwin and Mark Kirk, who was then serving as Ovitt’s chief of staff, with separate $100,000 bribes in the form of donations made to political action committees they had created or otherwise controlled. Kirk’s bribe, the prosecution alleges, was provided to him by the Colonies Partners in return for having delivered Ovitt’s vote. Erwin, who was not employed by the county at the time of his efforts related to the extortion, was, however, employed as assistant county assessor in 2007 when the $100,000 donation to his political action committee was made.
Under direct examination on May 1 through May 3, Postmus offered testimony that was in lockstep with the indictment. In the latter half of 2006, Postmus testified, Erwin, working on behalf of Burum and the Colonies Partners had threatened to expose elements of both his and Biane’s personal lives in an effort to persuade them to support the settlement. And Burum had promised to support him in future political and business endeavors once the settlement was out of the way, he said. Moreover, Postmus said, he believed the $102 million paid out to the Colonies Partners was more – ridiculously more – than the development company was due. The threats and promises of reward, he said, along with the desire to put the whole thing behind him, he testified, prompted the settlement. And after the settlement was in place, Postmus testified, the Colonies Partners had come through with two separate $50,000 donations to political action committees he had control over.
Under cross examination that began on May 3 and continued through May 4, picked up again on May 8 and continued on May 9, defense attorneys, primarily Keller, established that Postmus had engaged in a prodigious use of drugs, primarily methamphetamine, throughout the entire timeframe relevant to the events and overt acts alleged in the indictment, and that his recall of crucial events in many cases was spotty. Keller took special aim at the prosecution’s assertion there was a clear understanding before the settlement was voted upon that the alleged bribes – the $100,000 contributions to the various political action committees – had been promised to the recipients. Keller prompted from Postmus testimony that there had never been mention of any specific dollar amount in terms of the monetary support Burum might offer him if the settlement were to be effectuated and he testified that he did not learn that the Colonies Partners was going to be making the donations to his political action committees and those of the others until after the settlement had been approved. And Keller further elicited from Postmus statements to the effect that settling with the Colonies Partners over the flood control matter was “the right thing” to do, given that the county had suffered a setback in court, had accumulated well over $6 million in attorney’s fees to defend the suit and that the Colonies Partners were asserting the company had sustained $300 million in damages, which the county might become liable for if it did not prevail upon appeal. . While it had been widely anticipated that Keller was going to utterly savage Postmus through her cross examination, she instead sought to selectively discredit elements of his testimony on direct examination by her framing of questions aimed at his answers to Cope’s questions rather than at him. Indeed, Keller cultivated to an extent a rapport with the former politician who was being called upon by the prosecution to provide the key testimony around which the theory of her client’s guilt in having corrupted the San Bernardino County political process at the highest level more than a decade ago is contexted. Using that rapport and the simultaneous assertion that Postmus’ drug use and the legal travails he was going through left him in a fragile mental state, she suggested more than once with her questions that the investigators were seeding him with “false memories” and “false beliefs.” Playing audio recordings of Postmus’ interrogations by district attorney’s office investigators, she advanced the theory that the false memories were later harvested full bloom during his 2011 grand jury testimony to falsely implicate the others.
On Tuesday of this week, Postmus was back on the witness stand for recross examination by Keller. She again questioned him with regard to the two $50,000 donations Burum made to his political action committees after the settlement. Postmus told Keller that at the time he did not perceive that money as a kickback or a bribe given to him in return for approving the $102 million settlement.
Postmus and Erwin had been criminally charged in a conspiracy, extortion and bribery scheme relating to the settlement in February 2010, fifteen months prior to the indictment of Burum, Biane, Erwin and Kirk. Postmus and Erwin had initially pleaded not guilty to those charges, but in March 2011 Postmus had entered into a plea deal with prosecutors, agreeing to turn state’s evidence and cooperate with authorities in offering information and testimony against the others. Keller on Tuesday angled with her questions to show that the statements he made implicating the others during his exchanges with the district attorney’s office investigators in February and March of 2011 were a product of drug use and the false suggestions made by those investigators.
Keller used transcripts of those interrogations or recordings of them to demonstrate that to some extent, Postmus had been either resistant, or tentative in his answers, to questions relating to the participation of others in the conspiracy and bribery aspects of the alleged scheme during his initial exchanges with the investigators but that his responses to those questions grew far more consistent with the accusatory tone of the questions in the later interrogations and in his testimony before the grand jury.
In this way, Keller was providing the jurors with an object demonstration of exactly how suggestible Postmus had become, getting him to either contradict or greatly diminish testimony he had provided within the last several days. Under questioning by Keller, Postmus said he did not discuss the Colonies litigation with Burum during a trade mission trip to China in September 2006, whereas in his first days of testimony on the witness stand two weeks previously on May 1 and May 2 as well as in his 2011 grand jury testimony, he maintained Burum had harangued him about the case. Keller further sought to make inroads on Postmus’ testimony that Burum told him he would provide him with financial support either to continue his political career or for his endeavors in the private sector but not before the litigation between the Colonies Partners and the county had been resolved. Referencing his first interrogation session with district attorney’s office investigators Bob Schreiber and Hollis Randles in February 2011 where Postmus had mentioned no conditions with regard to the future support Burum was promising him, Keller suggested the prosecution team had manipulated Postmus to get from him a version of events to match the theories they were developing.
“You now understand that that narrative that developed over the course of the those five interviews … was an example of a false belief?” Keller asked him.
“Yes,” Postmus said, indicating he was being “pushed” by the investigators.
Indeed, Postmus came across as vulnerable to being “pushed” in whatever direction his questioner at the moment desired.
As if to assist Keller in her effort to propound the false evidence/planted memories/faulty memory theory the defense was pursuing, Postmus gratuitously expounded upon how during the latter phase of his drug use he had gravitated to “huffing” inhalants, i.e., breathing in volatile vapors or pressurized household and industrial chemicals and aerosols for their intoxicating effect because methamphetamine had lost its intensity for him. He volunteered his belief that huffing had been even more damaging to his body and memory than methamphetamine. With the intensity of the questions being asked of him unrelenting, Postmus time and again sought refuge in non-answers he was able to provide based upon his failing memory.
During his redirect examination of Postmus, Cope sought to use Postmus’ porous memory to the prosecution’s advantage. Just as Keller had, Cope asked questions that were augmented with exhibits in the form of documents or transcripts, succeeding in delivering up for the juries a demonstration that Postmus had indeed been engaged with the Colonies Partners during the ongoing litigation with the county in a way that suggested he was militating more on behalf of the development company than he was representing the county as its top elected official. Cope referenced a statement Postmus had released immediately after Judge Christopher Warner issued his statement of intended decision following a bench trial he had heard relating to a portion of that litigation. Warner’s decision had been favorable to the Colonies Partners. Postmus’ statement said in part: “While the decision is preliminary at this point and the possibility of an appeal still exists, I fear the county’s best opportunity to resolve this danger of financial risk to the taxpayers has likely already passed us by.”
Cope established from Postmus that he had not actually written the statement, which presaged the county’s eventual settling of the lawsuit on terms favorable to the Colonies Partners. When Postmus sought to deflect questions about his involvement in preparing the press release and cooperation with the Colonies Partners in achieving the necessary leverage from Warner’s decision to get a settlement of the lawsuit on terms favorable to the company, Postmus sought to duck the questions by pleading a lack of memory. Cope, however confronted Postmus with invoices that the Colonies Partners’ then-publicist, Patrick O’Reilly, had submitted to Burum which showed that just a few days in advance of Warner’s announcement of his statement of intended decision, O’Reilly on July 25 and July 26, 2006 had numerous phone calls with Postmus relating to drafting a “press release.”
“Do you recall speaking to Mr. O’Reilly about this press release?” Cope asked Postmus.
“No, sir,” responded Postmus. “I’m not saying it didn’t happen. I just don’t have a memory of it. I do know I did meet and talk to Mr. Burum and I did meet with Mr. O’Reilly. I just don’t remember the specifics, sir.”
Facing Postmus on the witness stand, Keller had made a tactical decision that had overbearing strategic implications for the case. Rather than “burn him to the ground” as the prosecution had been planning from the outset of the trial, Keller instead worked with Postmus to draw from him selected information that undercut the prosecution and advanced the defense’s contention that the Colonies Partners were involved in fully justifiable litigation against the county over obstructions to its effort to develop its property, and that the $102 million settlement to close out that litigation was a reasonable denouement given the proof marshaled by the Colonies Partners at trial and the county’s actual liability which might have been as high as $300 million or more. This was the counter-narrative Keller propounded, one that she suggested was so compelling that even Postmus, in his drug-addled state, could understand.
But as the end of Postmus’ ten full or partial days on the witness was nearing, Cope had begun to adjust the prosecution’s approach by matching Keller in utilizing Postmus’ poor memory or claims thereof during his examination of Postmus to further the prosecution’s case. When Postmus departed from the witness box and his one-time protégé and close political associate Adam Aleman replaced him, the task of taking advantage of Postmus’ elliptical memory to further the case against the defendants fell to California Supervising Deputy Attorney General Melissa Mandel.
During her questioning of Aleman on his first day on the stand May 17, Mandel did just that. Postmus in his testimony had said that there had been only limited contact between Aleman, who had worked as a field representative in Postmus’ office when he was supervisor and then was named assistant assessor when Postmus in 2007 assumed the assessor’s post following his election thereto in 2006. Postmus had testified that while negotiations over the Colonies lawsuit settlement were ongoing in 2006, he had met numerous times with Burum at the Juice It Up! or Starbucks outlets in Rancho Cucamonga, as well as once or twice at Burum’s office in Rancho Cucamonga and perhaps on one or two occasions at some undisclosed location in the High Desert near Postmus’ then-home in Hesperia. Postmus acknowledged having discussions relating to the lawsuit settlement with Burum. At only one or perhaps two of those meetings, Postmus said, was Aleman present. He recalled that Aleman, who had proficiency with handheld communications devices, had provided Burum some assistance with a Blackberry device that was either broken or malfunctioning. In this way, Postmus seemed to indicate, Aleman would not be a reliable source of information with regard to what had been communicated between Postmus and Burum.
When Mandel asked Aleman about his contacts with Burum in early 2006, he contradicted his former boss and said he had met with Burum in the presence of Postmus “six to 12 times between January and June of 2006.” Those meeting had taken place, he said, at various restaurants, including El Torito and Acapulco, as well as at the Red Hill County Club. Aleman also said that he and Postmus had encountered Burum, who was in the presence of his future attorney, Stephen Larson, at a Republican Women’s event during that time frame.
“During those meetings, was the Colonies settlement the primary subject discussed?” Mandel asked.
“It was probably the only subject of conversation,” Aleman said. Aleman said, “Mr. Burum was very cordial. He was actually very encouraging to Bill.”
Mandel asked if Burum “made any statement about Paul Biane?”
“He was very frustrated with Paul,” Aleman said, recalling that Burum said he had “got him elected. He had gotten rid of Jon Mikels [whom Biane defeated in the 2002 election for Second District supervisor]. He was frustrated that things were dragging along, and all Paul cared about was his political aspirations. He said, ‘Paul is pussyfooting around.”
“Did Mr. Burum also make a statement about his [Biane’s] upcoming campaign?” Mandel asked.
“He said he would spend everything he needed to to take Mr. Biane out politically,” Aleman said.
Mandel asked if Burum and Postmus had any discussions about campaign donations. Aleman responded that Burum specifically” indicated that “as soon as the Colonies settlement is over everyone would be taken care of politically.”
Burum had predetermined the value of the litigation settlement, Aleman testified. “Mr. Burum was emphatically looking for over $100 million,” Aleman said.
“Was there a time, any time, when you were present when Mr. Biane made statements about the Colonies lawsuit?” Mandel asked.
“Yes,” said Aleman, who indicated that some of Biane’s concerns about the settlement discussions related to how they might bear upon Measure P, an initiative Biane sponsored in 2006 to raise the pay of the county supervisors. Mandel asked what those concerns were.
“There was just concern for the intimidation factor,” Aleman said. “Mr. Biane especially was worried about his image and the ramifications the settlement would have on his future political aspirations. He didn’t want to be the go-to guy on the settlement.”
As a consequence, Aleman said, Postmus “was being groomed to take over Paul’s position to be the point person to get the settlement done.”
Mandel took up with Aleman whether Postmus, during his contact with Burum in China in 2005, had been extensively lobbied by Burum with regard to the settlement. Prosecutors have asserted that was indeed the case. The defense has disputed that.
“Did he [Postmus] text you from China?” Mandel asked.
Aleman said he had.
Mandel noted that in his testimony before the grand jury, “You mentioned he told you that Jeff was putting pressure on him about the Colonies settlement. Is that your recollection?”
“Absolutely,” said. Aleman.
“And you mentioned he told you this while he was actually still in China.”
Yes,” said Aleman.
Mandel obtained from Aleman a double reassurance that he had remained in communication with Postmus by text while the latter was in China and followed that up with double and triple reassurance that Postmus conveyed to him in that communication he was discussing the Colonies matter with Burum.
“Did Mr. Postmus text you about conversation relating to the Colonies case?” she asked.
“Yes,” Aleman replied.
“Did he indicate who he was having those conversations with?” she asked.
“Mr. Burum,” Aleman said.
“Do you recall what Mr. Postmus texted you about the Colonies case”?
“Yes,” said. Aleman.
“Did Mr. Postmus say anything about pressure?” Mandel asked.
“Yes,” said Aleman.
“What did he say about this pressure?” Mandel asked.
“That he felt pressure to get this settlement done,” said Aleman.
“Did he say who the pressure was coming from?” Mandel asked.
“Mr. Burum,” said Aleman.
Aleman testified that he, Postmus, and Biane were all aligned politically and active in the Republican Party. Postmus and Biane at that time were the chairman and vice chairman of the San Bernardino County Republican Central Committee. “We were very aggressive in strategizing city council races, various district races,” Aleman said. “I knew Mr. Burum, He was a large donor and influential member of the community on the west side of the county.” He said, “Mr. Erwin was a large supporter of Mr. Postmus. He helped him get elected. Mr. Erwin was actually the head of the most powerful political organization in the county, the Safety [Employees] Benefit Association. They have large political coffers.” He said that Erwin “was very nice to me” and that during his initial affiliation with Postmus he had met with Erwin on a number of occasions.
Of Mark Kirk, Aleman said, “Mr. Kirk was supportive of Mr. Postmus. Mr. Kirk had aspirations. He was looking to seek office as well.”
Of Supervisor Gary Ovitt, to whom Kirk was chief of staff, Aleman said, “He was a rubber stamp of what Mr. Kirk wanted. Mr. Ovitt deferred most of the decision making to Mark Kirk.” Aleman said that when Kirk formed his West End Young Republicans group, Kirk had asked him to join.
In his testimony, Aleman provided the most comprehensive information yet with regard to the extortion element of the case. The original extortion charges have been dismissed, though the narrative behind those charges remains as a central part of the prosecution’s theory. It was political “hit mailers” targeting Postmus and Biane, dwelling on the former’s drug addiction and homosexuality and the latter’s financial difficulties, in the months before the settlement vote that induced the two to come to terms with the Colonies Partners, the prosecution maintains. Those mailers were never sent. There have been allusions to the mailers in Cope’s opening statements and in the testimony of previous witnesses, but none of those witnesses saw any such mailers. Aleman, however, said that in 2006 Erwin showed him “mockups” of several anti-Biane hit pieces. He testified that he had gone to the office of the Safety Employees Benefit Association, where Erwin was then the executive director, and that Erwin showed him the mailers, which were either printed out or were in PDF form and displayed on his office computer monitor. Two of the mailers, he said, made an issue of Biane’s personal debt and a third implied that Biane was a problem drinker. Depicted on one of the mailers, Aleman said, was “bundles of money wadded up or in rubber bands; there was another with a kid who had an ‘L,’ [formed with his right index finger and thumb against his forehead] like loser, and there was another one that referenced alcohol,” Aleman recalled. In response to Mandel’s inquiry, Aleman said Erwin told him “that Mr. Postmus needed to get this settlement settled, or they would start harming Mr. Postmus’ and Mr. Biane’s political careers.” Aleman said he relayed the message to Postmus, who took it as a warning that if the settlement was not effectuated his homosexuality would be exposed. Aleman said Postmus reacted by saying, “‘Look what they’re doing to Paul. I’m next if I don’t get this done.’”
There had been a tentative indication that Mandel might conclude with her direct examination of Aleman by Thursday afternoon, May 18. That did not occur however, as there was a delay in the proceedings when one of the jurors on the panel hearing the case against Erwin came forward to tell the court that she and other members of Erwin’s jury, which is seated furthest forward in the courtroom and closest to the jury box and therefore has an unobstructed view of the defense table, had seen Burum make what they thought might be an inappropriate gesture to witness Adam Aleman during his testimony on Wednesday. Erwin has a jury separate from the jury hearing the case against Burum, Biane and Kirk because some testimony that is admissible against Erwin is not admissible against the others.
Judge Michael Smith first inquired of Cope, Mandel, the bailiff and Aleman if they had noted any gestures from Burum. They said they had not. Judge Smith then brought the entirety of Erwin’s jury into the courtroom separately and asked what each had seen. Two said they had seen Burum put his hand to the side of his face, but were unclear as to whether the defendant had merely been propping his jaw up as is typical of people forced to remain seated in one position for a long period of time. Most of the jurors said they had noted nothing out of the ordinary. A total of six of the 12 jurors and five alternates said they had noted facial expressions and in some cases verbal reactions by not just Burum but other members of the defense camp to some of the testimony. One, a retired school teacher, said she considered some of the reactions to be disrespectful and inappropriate. Smith asked of those jurors who observed the histrionics if they might, given that Erwin is accused of aiding and abetting Burum in a crime, be influenced in rendering a verdict with regard to Erwin because of Burum’s actions. All said they would not. Erwin was not in court that day, having been excused to attend his son’s graduation. His attorney, Raj Maline, indicated that he was contemplating filing a motion for mistrial.
Burum made a sworn statement to the effect that he had not in any way made gestures at, to, or toward Aleman. Smith called Erwin’s jury into the courtroom and warned them that they should not be discussing anything that goes on within the courtroom amongst themselves before deliberations begin. He said if they observe any inappropriate conduct by defendants and attorneys, they should inform the bailiff. Outside the presence of the juries, Judge Smith told the defendants and their advocates that they should carefully consider that their behavior in the courtroom and courthouse is being observed by the juries and that how they conduct themselves could have an impact on the verdicts.
Later that day, Stephen Larson, Burum’s attorney said, “Mr Burum is innocent, and even the prosecution’s star witness confirmed that. The stress of a six-month trial, after six years of litigation for crimes he didn’t commit, is inconceivable. Having said that, he recognizes that some of his reactions may have been misinterpreted and will better comport himself moving forward.”
Aleman is due back on the witness stand Monday morning to undergo further direct examination, at which point it is anticipated that Mandel will introduce what has been referred to as the case’s so-called “smoking gun,” or the nearest thing to it – a chain of text messages between Postmus and Aleman. Cope failed in getting this exhibit before the jury previously, when Smith disallowed its display, after the defense objected and it was examined by Postmus on the witness stand and he claimed to have no recollection of it. During an on-the-record discussion outside the presence of the jury last week, Cope indicated that the text exchange features a reassurance given by Postmus to Aleman, who was fretting about real or potential legal repercussions relating to either the Colonies lawsuit settlement or other activity Postmus and Aleman had engaged in, that Burum had promised “to take care” of them.
Only a half day of testimony is scheduled for Monday, at which point the case will break for another week. Cross examination of Aleman thus may not begin until the trial is again in session on May 29. It is anticipated that Keller will handle the cross examination of Aleman and she will be far more ruthless with him than she was with Postmus. On June 30, 2008, Aleman was arrested and charged with vandalizing county property, altering public documents and perjury. In October 2008, Aleman through his attorney approached the district attorney’s office, offering information of his own relating to what he knew of wrongdoing within the county, including information with regard to blackmail and bribery related to the Colonies lawsuit settlement. He undertook to assist investigators in gathering further evidence relating to his allegations, including making surreptitious audio recordings of those he said were involved. A year after his arrest, Aleman entered a guilty plea to the four felony counts against him. His sentence is being held in abeyance, pursuant to his continuing cooperation in the prosecution case against Burum, Biane, Erwin and Kirk. Keller will attempt to establish, the Sentinel has learned, that Aleman has fabricated his statements implicating the defendants in an effort to engineer for himself leniency in his own criminal case.   -Mark Gutglueck

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