By Ruth Musser-Lopez and Mark Gutglueck
A week after one of its strongest showings in the Colonies Lawsuit Settlement Public Corruption Trial, the prosecution found itself pinned down under heavy return fire by the lead attorney for the case’s central defendant in the 25th week of the proceedings before the two juries hearing the matter.
Stephen Larson is a former federal judge and federal prosecutor and is now the attorney for Rancho Cucamonga-based developer Jeff Burum. In three days of court this week, Larson executed a legal tour-de-force, neutralizing the most damaging elements of the testimony against his client by the county’s former top civil attorney, confronting the state’s prosecutor over what he alleged was an unethical move by the prosecution team to put on testimony it knew to be false, and virtually arm wrestling the judge in the case to allow him to pursue a line of questioning with regard to the lead investigator’s omission of exculpatory evidence from his reports. Larson then relentlessly hectored the lead investigator with regard to inconsistencies in his sworn testimony and assertions during his interrogations of witnesses.
Testifying at the end of Week 24 in the trial was Dennis Wagner, who had occupied the position of county counsel – the highest ranking in-house attorney working directly for the county – during all but the last three weeks of the six months leading up to the board of supervisor’s vote on November 28, 2006 to confer $102 million on the Colonies Partners to settle the lawsuit that company had brought against the county and its flood control district in 2002 over drainage issues at the Colonies at San Antonio residential and Colonies Crossroads commercial subdivisions in northeast Upland. It is the prosecution’s contention that the settlement was tainted by extortion and bribery, in which Burum, one of the managing principals in the Colonies Partners, worked with former sheriff’s deputies union president Jim Erwin to threaten then-county supervisors Bill Postmus and Paul Biane with the exposure of derogatory information concerning their financial and personal affairs during the 2006 election season. Three weeks to the day after the November 7, 2006 election in which Postmus was elected assessor and a pay raise measure for the supervisors sponsored by Biane was passed by voters, Postmus and Biane joined with their board colleague, Gary Ovitt, to approve the $102 million settlement. Over the next seven months, the Colonies Partners made $400,000 in contributions – $100,000 each – to political action committees set up for or controlled by Postmus, Biane, Erwin and Mark Kirk, who was Ovitt’s chief of staff. Those political contributions were thinly-veiled kickbacks, prosecutors allege. Postmus and Erwin in February 2010 were criminally charged with involvement in an extortion and bribery conspiracy in which Burum; his associate in the Colonies Partners, Dan Richards; Biane; Kirk; and Patrick O’Reilly, a public relations specialist working for the Colonies Partners, were outlined in the criminal filing as uncharged coconspirators and referred to as Does 1 through 5 without being identified by name. Postmus in March 2011 pleaded guilty to 14 felony charges of political corruption while he was in office as supervisor and assessor. He turned state’s evidence and testified before a grand jury in April 2011 that in May 2011 handed down a 29-count indictment of Burum, Biane, Erwin and Kirk.
Postmus and his one-time political protégé, Adam Aleman, have already testified in the trial, and both recited the allegations central to the prosecution’s case. In the weeks before Wagner testified, defense attorneys sought to blunt the damage inflicted upon their clients by Postmus, the one-time chairman of both the board of supervisors and the San Bernardino County Republican Central Committee, by highlighting his decade-long immersion in methamphetamine addiction which ravaged his memory, leaving him open to suggestion and throwing into question the accuracy of his assertions that Burum and Erwin threatened to expose his homosexuality and drug use, and that while the legal battle was raging between the county and the Colonies Partners, Burum had made a commitment to support him in his future political endeavors or in his forays into the private sector if he left public office, but only after his company’s legal dispute with the county was resolved. Defense attorneys savagely attacked Aleman, dwelling at length upon his own legal travails and criminality, which included abusing the public trust while he was serving in the $190,000-per year total compensation assistant assessor’s position Postmus had conferred upon him when he was only 23-years-old. Lacking a college degree and with absolutely no knowledge or expertise with regard to ascertaining the value of real estate or other tangible assets for tax purposes, Aleman instead of immersing himself in the workings of the assessor’s office and the intricacies of his assignment engaged in activities promoting the Republican Party and Republican candidates. Defense attorneys in painstaking detail forced him to elaborate on how he had reacted when the county’s civil grand jury and the district attorney’s office began nosing around the assessor’s office in reaction to reports of untoward activity there, which included his ordering an office secretary to alter public documents, taking it upon himself to destroy a computer hard drive from one of Postmus’ county-issued computers, and then perjuring himself when called to testify before a grand jury. All of this was recounted, along with an account of his arrest and prosecution. It was in his effort to forge a plea deal with prosecutors, defense attorneys suggested by their questioning, that he fabricated an elaborate tale of political graft and corruption implicating the four current defendants.
Wagner followed Aleman to the witness stand. Earlier in the trial, five of the county’s lawyers involved in the Colonies case had testified as prosecution witnesses. Prosecutors sought to have them illustrate the validity of the county’s position in the lawsuit with the Colonies Partners and to propound the assertion that the $102 million settlement was not only out of keeping with any actual damage the Colonies had sustained as a consequence of the county’s action at issue in the lawsuit, but that such a lopsided settlement severely compromised the county’s prospects of successfully waging a lawsuit of its own, an indemnity action, against three other parties that were involved in the situation vis-à-vis the Colonies at San Antonio and the Colonies Crossroads projects: the City of Upland, which had land use and planning authority with regard to the Colonies projects; CalTrans, i.e., the California Department of Transportation, which was responsible for constructing a freeway across the Colonies Partners’ property; and the transportation agency for all 24 of the county’s cities and the county itself, then known by its acronym SANBAG, the San Bernardino Association of Governments, which was likewise involved in the regional and local traffic circulation issues that impacted the project and the area around it. Two of the previously testifying attorneys, however, had represented the county after the settlement was made and had thus been involved in seeking to recover money from the county’s insurance carriers to offset the payout to the Colonies Partners. In so doing, they had been obliged to assert in pursuing those insurance claims that the $102 million settlement with the Colonies Partners was a reasonable one. This played into the hands of the defendants’ attorneys, who had more than one field day in getting those attorneys to re-mouth their representations made in seeking recompense from the insurance companies, essentially that the $102 million settlement was an objectively reasonable one which was honestly arrived at after hard but fair bargaining. Wagner, however, was not hamstrung in this fashion. He left as county counsel three weeks prior to the $102 million settlement being ratified by the board of supervisors – on the same day Postmus was elected supervisor and the pay raise measure for supervisors passed – and he was not in place nor in any fashion involved in the subsequent effort to recover insurance money for the county relating to the settlement with the Colonies Partners. He was free to say – and he did – that the deal was contrary to the interests of the county. He also said that the board of supervisors was being continually advised of such, that the county’s attorneys uniformly detected flaws in a series of findings and a tentative ruling against the county made by Judge Christopher Warner following a bench trial with regard to ownership issues and usage rights on the Colonies Partners’ property, and that the county’s lawyers strongly recommended that the matter be appealed. He further testified that he told the board of supervisors – as did the outside law firm representing the county in the lawsuit with the Colonies Partners – that if the board persisted in settling the suit on the terms being dictated to it by the Colonies Partners he would resign. Indeed, when the board on election day voted 3-2 to enter into a settlement valued at $102 million which included the provision of both cash and surplus land owned by the county to the Colonies Partners, he resigned. That deal was not finalized because four votes of the board of supervisors were required to ratify a deal involving the conveyance of land. It was three weeks later when a $102 million deal involving just cash was passed on a 3-2 vote.
Wagner was a valuable prosecution witness for another reason. While he had worked as a line attorney with the office of county counsel for ten years beginning in 1994, he had left the employ of the county to go into private practice in 2004 with another veteran of the office of county counsel, Tristan Pelayes. In 2005, the law firm of Wagner & Pelayes had represented Bill Postmus in a legal matter he was involved in. Also in 2005, according to the testimony of multiple witnesses, Postmus began heavily militating toward settling the lawsuit. By the spring of 2006, Postmus was growing increasingly impatient with the county’s legal team, its analysis of the legal issues surrounding the lawsuit and its resolve to contest the suit, those witnesses said. Moreover, he was absolutely disregardful of the efforts of the lawyers to keep him informed of the legal issues involved in the lawsuit with the Colonies Partners as those issues developed and unfolded. He evinced complete disrespect for the lawyers altogether and when the county’s legal team did not bend to his will that the case be settled on the terms being proposed by the Colonies Partners, he initiated, in the spring of 2006, an effort to outsource the office of county counsel, resulting in the exodus of then-county counsel Ron Reitz. Based on his relationship with Wagner & Pelayes and the consideration that both Dennis Wagner and Tristan Pelayes had institutional knowledge with regard to the office of county counsel by virtue of having worked there previously, Postmus settled upon hiring Wagner as county counsel, which was, as far as he was concerned, the next best thing to outsourcing the office. Postmus’ expectation was that Wagner would, as county counsel, steer the county into a settlement with the Colonies Partners. Upon coming up to speed on the case, Wagner testified, he grew determined to see it through, which was contrary to Postmus’ intention. In this way, Wagner demonstrated that there was absolute unanimity among the county’s lawyers with regard to remaining steadfast in contesting the Colonies Partners’ suit and not settling the matter on the terms the Colonies Partners and Postmus were set upon.
On Monday, Larson continued the spirited and sometimes tense cross examination of Wagner he had begun the previous week. Larson asked about a complaint to the Commission on Judicial Performance that had been lodged against both of the jurists before whom the Colonies Partners’ litigation against the county had been heard, San Bernardino County Superior Court judges Peter Norell and Christopher Warner. Both judges had made crucial findings against the county with regard to its flood control easements on the Colonies Partners property. Those easements had been recorded when the property was owned by the San Antonio Water Company in 1933, 1934 and 1939. The 1934 easement specified that the county flood control district could use roughly 31 acres on the property for a flood control basin or channel. The 1939 easement confirmed that the 31 acres specified in the 1934 easement could be used for flood control purposes without having to reimburse the property owner and that another approximately 30 acres could be assigned for use in accommodating flood water runoff if such was necessary, but that the flood control district would need to come to an accommodation with the landowner over compensation for that 30 acres. In 2003 Norell had made a finding that the county had abandoned those easements through nonuse. The county appealed that ruling to the 4th District Court of Appeal in Riverside, which in 2005 reversed Norell, declaring the easements were still intact. In 2006, Warner arrived at the conclusion that the easements had been extinguished through the county’s overuse of them in making his tentative ruling against the county. In the second half of 2006, the county was awaiting the entering of Warner’s ruling against the county and his ruling on the easements so it could appeal the matter once again to the 4th District Court of Appeal. At this point, while the county was also participating in mediation sessions with the Colonies Partners before former California Supreme Court Justice Edward Panelli with regard to the suit, Hesperia Councilman Jim Lindley informed deputy county counsel Carol Greene that he had heard that Burum was bragging that he was a golfing partner with the judge hearing the case. In September 2006, unable to establish whether the judge Burum was referring to was Norell or Warner, Wagner in his capacity as county counsel lodged a complaint with the California Commission on Judicial Performance against both Norell and Warner. Thereafter, it became the position of the office of county counsel that a settlement of the Colonies lawsuit was not advisable until the complaint with the Commission on Judicial Performance had been resolved. Ultimately, two years later, the commission would come to the conclusion that some elements contained in the complaint relating to Norell and his judicial comportment had been sustained and he had fallen into a state disrepute. To the extent that the commission was unable to sustain the accusation with regard to Warner, it discontinued its inquiry.
Starting with the complaint to the Commission on Judicial Performance as a reference point, Larson aggressively, indeed somewhat truculently, angled at Wagner.
“You were doing all that you could to shut down the settlement agreement, correct?” Larson demanded to know.
Supervising Deputy District Attorney Lewis Cope objected, but was overruled by Judge Michael Smith.
“You were doing all you could, including filing a complaint against a judge you admired,” Larson persisted.
“I did my job,” Wagner said. “I raised the issue that I needed to. That judicial complaint was vetted with a number of folks, Jones Day [an outside law firm representing the county in its litigation against the Colonies Partners], their ethics guy in the state of Ohio. It was not done lightly, sir.”
Larson asked if the topic reminded Wagner of his testimony the previous week in which Larson had asked about “Mr. Postmus accusing you of trying to scuttle the settlement agreement.”
“Correct,” Wagner said.
Larson revisited some of the answers Wagner had given last week.
“Then you said, that is why you made the comment to the board that they have the absolute right to settle this case. That is what you told the board back in November 2006.” Larson said.
Wagner agreed. “That is exactly what I told the board,” he said.
“In fact, Mr. Postmus actually accused you of trying to tank the deal,” said Larson.
Wagner said he told Postmus and the board that they were not bound by the advice he and the rest of the office of county counsel and the outside lawyers were providing.
“You don’t have to listen to us lawyers,” he quoted himself as saying. “You can do what you want.”
At one point, Larson established that word about the complaint to the commission was on the brink of going public and that Jeff Horowitz, then a reporter with the San Bernardino Sun, had spoken to Supervisor Dennis Hansberger about the complaint. It was notable, Larson suggested, that Hansberger, the member of the board of supervisors most virulently opposed to the settlement, was himself skeptical of the basis and substance of the complaint, having indicated “that he didn’t give [the accusations] much weight as they are only unsubstantiated allegations.”
Larson referenced an email on the subject of Horowitz’s inquiries about the complaint, one from then chief deputy county counsel [and now Superior Court Judge ] Michael Sachs that had been sent to Wagner and which Wagner forwarded to Ruth Stringer, who had succeeded him as county counsel, dated December 1, 2006, just a few days after the settlement was effectuated and more than three weeks after Wagner’s departure as county counsel but while he was still assisting in transitioning the office to Stringer’s leadership. Sachs’ email dealt with Horowitz’s inquiries and the effort by the county being quarterbacked by the office of county counsel to keep the subject of the complaint to the Commission on Judicial Performance under wraps.
“Horowitz is calling…” Sachs’ email stated. “I am advising all the boys that if they say anything, it should be cannot confirm or deny – leave it at that.”
“Do you recognize this email?” Larson asked.
“I’m trying to see who started it,” Wagner said.
After Wagner oriented himself to its contents, Larson said, “Mr. Horowitz was a newspaper reporter.”
“Yes,” said Wagner.
“You were trying to keep this out of the press,” Larson said.
“Correct,” said Wagner. “There was some confidentiality involved here. We were dealing with the Judicial Commission.”
In some of his questions, Larson focused on the violations of confidentiality, the leaks of what was supposed to be confidential information that the board and the county’s lawyers were privy to and the atmosphere of distrust in the county at that time.
Larson inquired as to how much about the complaint to the Commission on Judicial Performance had been disclosed to the members of the board of supervisors in September of 2006. Wagner was unable to say precisely what they had been told.
“I can’t recall the detail, except that I may have referenced a judge in the first trial or the second trial,” Wagner said.
“You never gave a copy of complaint to the members of the board of supervisors,” Larson said. “Correct,” Wagner said.
“Mr. Biane, and others never saw the complaint.” said Larson.
“I was concerned about it being leaked,” Wagner said, adding that he was seeking to keep Lindley’s identity and the substance of the accusations from being exposed.
Larson asked about a leak of confidential information involving the board of supervisors and the county’s lawyers that occurred nearly a year before Wagner was brought in as county counsel. This involved a memo from two lawyers with the law firm of Munger Tolles & Olsen – Paul Watford and Steven Kristovich, who had been present at a March 25, 2005 meeting at Biane’s supervisor’s office in the Rancho Cucamonga Courthouse that involved Biane and Postmus as well as Burum and Dan Richards, who were present there with their lawyers Heidi Timken and Scott Sommer, as well as former California State Senator Jim Brulte. Also present was deputy county counsel Mitch Norton. After the lawyers for both sides provided their analysis of the then-recent tentative ruling by the 4th District Court of Appeal reestablishing that the county’s easements on the Colonies property remained intact, Postmus had the lawyers leave the room. In the ensuing one-sided forum in which he and Biane represented the county and Burum and Richards represented the Colonies Partners, with the back and forth between them being refereed by Brulte, who had been retained by the Colonies as a consultant, a tentative settlement was worked out involving the county handing over $22 million in cash and surplus flood control property in Rancho Cucamonga with an estimated value of $55.5 million – what was described as a $77.5 million deal. In the months and weeks ahead, that deal appeared to be headed for finalization, which prompted the Munger Tolles & Olsen firm to resign as the county’s lawyers in protest. In June 2005, a memo to the board of supervisors from Watford and Kristovich strongly urging the board not to adopt the settlement agreement was leaked and after accounts of what were in the memo appeared in the press, the deal fell through.
Larson asked Wagner “You knew about the leaked memo?”
Wagner said he had heard about it from “the newspaper, I think.”
Larson asked if Wagner knew that a “criminal investigation was pursued” over that breach of confidentiality.
“I have no idea,” responded Wagner.
“You were aware of the tentative settlement?” Larson asked.
“I was aware that became an issue and that settlement did not go forward,” Wagner said.
Larson then returned to the complaint to the Commission on Judicial Performance and the level of confidentiality Wagner was maintaining with regard to it. He asked about Wagner’s level of trust with regard to the “Fifth Floor,” i.e., the top floor of the county’s main administrative building in which the board of supervisors has its suite of offices. Larson suggested the “Fifth Floor” could not be trusted “not to leak the complaint.”
“Correct,” said Wagner.
“There was a lack of trust between the board and county counsel,” said Larson.
“I don’t know if there was a lack of trust of me,” said Wagner. “I tended to see it as a dysfunctional board of supervisors and a weak chief administrator.”
Wagner said that in such an atmosphere it grew common for those there to “bypass of the chain of command. People would be coming directly to me.”
“So, there was dysfunction, a lack of trust on both sides?” asked Larson.
“I can’t speak for the others, but I understand a lot of things got leaked,” said Wagner.
Larson then extracted from Wagner an acknowledgement that the board, or at least Postmus and Biane on its behalf, had seen the memo from Watford and Kristovich leaked to wreck the tentative settlement with the Colonies in 2005 and were upset about that, were experiencing resistance to the concept of settlement in 2006 from members of county counsel, and were distrustful of the county’s legal team all the way around. Larson asked about Jones Day, the firm that came in to replace Munger Tolles & Olsen after that firm resigned in 2005.
“There were difficulties with Jones Day, yes,” Wagner conceded. “I don’t think the board trusted Jones Day, for whatever reason.”
By late morning Monday, Larson had achieved his strategic goal with his cross examination of Wagner, which was to give the jury an alternative theory to that element of the prosecution’s narrative which holds that Postmus and Biane voted to support the settlement because they were extorted and bribed into doing so; rather, Larson’s questioning of Wagner suggested, the two leaders of the board had lost faith in the county’s lawyers and were ready to settle the matter because they did not believe continuing to litigate would have the positive outcome the county’s lawyers were predicting.
Upon the completion of Wagner’s testimony Monday afternoon, Hollis “Bud” Randles, who is now the assistant chief investigator for the San Bernardino County District Attorney’s Bureau of Investigation and who in 2008 served as the lead investigator into the circumstances around the settlement of the lawsuit with the Colonies Partners, took the witness stand. Indeed, it was Randles, in conjunction with the other investigators in the office, including Morey Weiss and Bob Schreiber, who unlocked the flood of detail with regard to what went on behind the settlement. They were initially able to do so because the key witness and informant in the matter, Adam Aleman, had worked himself into a circumstance while he was employed as assistant assessor under Bill Postmus in 2007 and 2008 in which he had engaged in multiple violations of the law, transgressions pertaining mostly to misuse of assessor’s office facilities, equipment and personnel for partisan political purposes. After Aleman was arrested and charged with these crimes, his attorney, Grover Porter, worked out a plea arrangement with the district attorney’s office in which he agreed to cooperate in providing information against others. While that cooperation initially pertained to the assessor’s office scandal, including the involvement of 13 political appointees to that office’s administrative division made following Postmus’ 2006 election as assessor together with the activity of Postmus himself, investigators’ interest was piqued by information Aleman had about the circumstances and events relating to the settlement of the lawsuit with the Colonies Partners, a scandal that in most of its respects preceded in time the scandal in the assessor’s office. Aleman provided investigators a blueprint to that first scandal, along with information that so completely implicated Postmus in crimes he committed as assessor and supervisor that it brought his political career to a close and resulted in criminal filings, and eventually convictions, against him. For the crimes in the assessor’s office, Postmus was criminally charged in June 2009. For the crimes that predated those, i.e., the ones stemming from his time as supervisor, he was charged in February 2010. Though he initially pleaded not guilty to both sets of charges, utilizing two different lawyers in those defenses, in March 2011 he folded entirely, entering guilty pleas to 14 felony charges covering both scandals, in so doing agreeing to turn states evidence. At that point, Randles and his fellow investigators went to work on him as well.
On Monday and Tuesday, California Supervising Deputy Attorney General Melissa Mandel marched Randles, a former Army paratrooper who fought in Vietnam and then worked for 22 years and seven months with the Los Angeles Police Department before retiring and taking a position with the district attorney’s office in San Bernardino County, through several major elements in the Colonies lawsuit settlement investigation.
Randles testified that the investigation of the Colonies lawsuit settlement evolved out of the investigation of the assessor’s office, which began in 2007. “August 2007 is when I started the investigation,” Randles said.
That investigation had its focus, he said, on allegations that “Bill Postmus was misusing public funds, computers and facilities” and that he was a “drug addict.” He said the investigation “expanded to include his assistant assessor, Adam Aleman” on reports that “he dad destroyed a county computer by prying the hard drive out” and that he had “falsified [assessor’s office] executive staff minutes and presented them to the grand jury.”
When did you first interview Adam Aleman in connection with the assessor’s offce?” Mandel asked.
“That would have been in March 2008,” said Randles.
Mandel asked Randles about when he next dealt with Aleman.
Randles said he next interviewed him after his arrest on November 1, 2008, at the point which Aleman had entered into a plea arrangement with the district attorney’s office. Mandel asked if that was when Randles “first heard about the circumstances underlying the Colonies case?”
“That is correct,” Randles said.
Mandel asked about the nature and scope of information Aleman was relating to investigators. “He was providing information on an ongoing basis about everything that was going on with a variety of individuals,” Randles said.
Mandel asked Randles if at that point he knew “anything about the Colonies case?”
“No, I had not,” said Randles.
She then asked if in conjunction with the Colonies matter, “Were you aware of any criminal activity?”
“Nothing but rumors,” Randles responded.
Mandel asked him if “prior to November 1, 2008 you had any knowledge about Bill Postmus, Paul Biane, Mark Kirk or Jim Erwin being paid $100,000 in connection with the Colonies settlement?”
“No,” said Randles.
“Prior to November 1, 2008 did you have information the $400,000 paid to the political action committees were actually payoffs to secure the Colonies settlement?” Mandel asked over objections by the defense.
“I had no information at that time or before the interview with Adam Aleman on November 1,” Randles said.
Randles said he had interviewed over 70 witnesses with regard to the case, many on multiple occasions.
Mandel sought to defuse previous suggestions by the defense that the district attorney’s office investigators and in particular the gruff and forward Randles had intimidated witnesses or in some fashion pressured them into providing what was essentially false information to prop up the prosecution’s theories relating to blackmail, extortion, graft and bribery being major factors in the board vote to ratify the lawsuit settlement. At the points when Aleman and Postmus were being interrogated by the investigators, they had signed plea agreements, pledging to cooperate with the prosecution.
Mandel asked Randles if attorneys accompanied Postmus to his interrogations. Randles testified that he believed Postmus had two attorneys with him during Randles’ first interrogation of the former supervisor and assessor, and had at least one lawyer with him during later sessions.
“At any point during your interviews of Mr. Postmus, did any of his attorneys object to the manner in which you were questioning him?” Mandel asked.
“Never,” responded Randles.
Likewise, Aleman was accompanied to his interrogations by his attorney or had access to one if he chose, Randles said. He said neither Postmus nor Aleman lodged any complaints over his treatment of them. He said all of the interrogations with Postmus and Aleman were recorded.
Mandel took up with Randles that element of the case touching upon extortion, which is no longer a charge against the defendants. Nevertheless, extortion in the form of blackmail remains as an intrinsic element of the narrative in the remaining case against three of the defendants, directly so against Burum and Erwin, who are alleged to have engaged in it, and indirectly against Biane, who is alleged to have been victimized by it and thus driven to support the settlement, after which, according to the prosecution, he was bribed.
Aleman testified about “hit piece” mailers created by Burum and Erwin that were in Erwin’s possession in “mockup” form, either on his computer at the sheriff’s deputies union office or printed out, which definitely, he testified, referenced Biane’s financial difficulties. He was less clear, indeed somewhat contradictory, with regard to the mailers pertaining to Postmus, which were to be mailed to voters detailing either or both his homosexuality and/or drug use. The mailers were used to threaten Postmus, then the chairman of the board of supervisors and the chairman of the San Bernardino County Republican Central Committee, and Biane, then the vice chairman of the board of supervisors and the vice chairman of the San Bernardino County Republican Central Committee, according to prosecutors, and ultimately withheld. No version of the mailers in any form has been produced at trial.
To Mandel’s inquiry on the mailers, Randles testified that over two years had elapsed from the time Aleman claimed to have seen them at Erwin’s office in the fall of 2006 and when Aleman told Randles about them during one of his interrogations in November 2008 and that he and his investigators had not aggressively followed up on that to obtain the mailers, the mockups or the digital versions of them.
“We didn’t know if it was specifically a laptop or a desktop,” Randles said. “It could have been either, and, as a unit, we discussed it and came to the decision it would not have been productive.”
Randles did, however say that Postmus had given indication, during Randles’ March 1, 2011 interrogation of him, that Burum during a phone conversation prior to the vote to settle the lawsuit had made reference to Postmus’ homosexuality in a way that Postmus said “freaked him out.” Randles said Postmus said Burum mentioned a “rumor” that Postmus was homosexual and engaged in a relationship with Greg Eyler, who was one of the political appointees hired into the assessor’s office in 2007 after Postmus was elected assessor and after the settlement was in place. Aleman testified that Postmus and Eyler had been boyfriends.
Randles testified that Postmus during the March 1, 2011 interrogation said he had “laughed off” Burum’s remarks, but recognized Burum was “sending him a message.”
On Wednesday morning, Mandel was prepared to play excerpts from an audio recording of an ambush interrogation that Randles, armed with information provided to him by Aleman as well as information gleaned from his follow-up investigation, had carried out with Mark Kirk, Gary Ovitt’s chief of staff, on April 21, 2009, the same day that investigators had likewise drygulched Biane’s chief of staff, Matt Brown. Outside the presence of the two juries hearing the case – one set to adjudge the guilt or innocence of Erwin and the other to decide the fate of Burum, Biane and Kirk – there was much discussion before Judge Michael Smith late Tuesday afternoon with regard to the recording, during which a rare disagreement among the defense attorneys manifested. Kirk and his attorney, Peter Scalisi, objected to the introduction of the interview as evidence altogether. Larson likewise objected to the playing of the recording. But in response to Mandel’s insistence that statements to be heard in the interrogation session are both admissible and relevant, Larson said he objected to those elements of the recording in which Kirk made statements implicating Burum. Based on Burum’s Sixth Amendment right to confront any of his accusers and the presumption that Kirk will stand on his Fifth Amendment right to not testify, Larson sought to exclude the inculpatory statements relating to his client. Scalisi reiterated his opposition to playing the recording altogether, but said that if the recording was to be played, he and his client wanted it played in its entirety to demonstrate the full context of Kirk’s statements. Ultimately, Judge Michael Smith ruled that only portions of the tape would be played. Wednesday morning, however, Scalisi had taken ill and was not present to represent Kirk. A decision was made to suspend direct examination of Randles at that point with the proviso that direct examination of Randles will resume for the purpose of playing the recording of the Kirk interrogation after Scalisi’s return. With Kirk’s assent and the assent of Burum, Kirk was represented during Wednesday’s proceedings by Jennifer Keller, one of Burum’s attorneys.
As Burum’s lead attorney, Larson sought, and after much back and forth with Judge Smith, obtained, permission to question Randles with regard not just on the areas covered in his investigation but those elements not investigated by Randles or his team which Larson said should have logically been areas of inquiry for the investigators. Smith initially denied Larson that latitude, asserting that it would very likely open the door to a variety of issues being delved into by both the prosecution and the defense on redirect and recross examination that would lengthen even more an already lengthy trial. In a remonstration that moved beyond the bounds of his normally refined bearing which carried into the province of testing the normally-calm Judge Smith’s judicial forbearance, Larson in the throes of his fervor advanced closely toward the bench as Judge Smith, still maintaining a posture of resistance to opening the field of cross examination beyond those issues which strictly defined had been mentioned in direct examination, restated his denial of the request. Larson, at that point pacing in front of the bench, uttered phraseology to the effect that he wanted to make a very limited inquiry with this witness to controvert what was tantamount to the exposition of false evidence and testimony knowingly put on by the prosecution. Only then did Judge Smith relent, saying he would allow Larson to make a limited inquiry into the matter, while remarking that he hoped they would not soon be looking back upon his decision as one rendering the trial even more interminable than it already is.
Larson used the opportunity to question Randles with regard to the role his failure to ascertain the exact whereabouts of supervisor Josie Gonzales in mid Seotember 2005 and the exact whereabouts of Jeff Burum in mid-November 2006 played in Gonzales’ March testimony before the two juries.
In what came across at the time as the most dramatic and damning testimony against Burum to that point in the trial, under direct examination by Supervising San Bernardino County Deputy District Attorney Lewis Cope, Gonzales testified that while she was on a trade mission to China in September 2005 she encountered Jim Brulte in a lounge on the ground floor of the White Swan Hotel in Zhengzhou. Brulte invited her to go out to dinner with him and Burum, saying there was a limousine waiting to whisk them away for a night on the town, Gonzales testified, and she said that she could see Burum, both directly and in profile as he changed positions, some distance away in the hotel lobby. Gonzales testified she gave Brulte indication she would go with them, but she felt it would be improper for her to dine and go out with either or both men, as Brulte was working as a consultant for the Colonies Partners and the litigation Burum and the Colonies Partners had brought against the county was still pending. She feared as well, she testified, that Brulte and Burum might succeed in getting her intoxicated and placed into a compromising position. She slipped away using a pretext and went up to her hotel room where, she said, she remained for most of the next two days, ducking both Brulte and Burum, relying on room service, until the San Bernardino County delegation she was with departed Zhengzhou.
There was incontrovertible evidence, however, that Gonzales was not in China in 2005. Rather it appears, she conflated the 2005 China Trip, which she did not attend, with another trade mission to China in November 2006, in which she participated. Equally incontrovertible evidence placed Burum in China during the September 2005 trip and in the United States during November 2006.
On Wednesday, during his cross examination of Randles, Larson established that the trade mission to China attended by San Bernardino County officials in 2006 took place between November 11 and November 19. Partially re-covering ground explored by Mandel on direct examination, Larson established that Randles had obtained search warrants for Burum’s American Express credit card billings for 2006. He then used the court’s overhead visual projector to display on screens positioned all around the courtroom charges against that card for the month of November 2006, one for $68.24 for fuel at the Mobil gas station in Rancho Cucamonga on November 10; one for $866.42 for apparel and accessories at Madison’s in Palm Springs on November 10; one for $1,861.43 for lodging at the Parker Meridian Hotel in Palm Springs on November 12; another for 1,028.36 for lodging at the Parker Meridian Hotel in Palm Springs on November 12; and a charge of $57.48 for fuel at the Chevron station in Rancho Cucamonga on November 13.
Larson asked Randles if he was aware that Burum was in Palm Springs November 11 through November 13, 2006 to attend the wedding of his business partner Dan Richard’s daughter.
Randles said he was not.
Larson asked if Randles had obtained copies of Burum’s credit card charges during that period.
“I believe an investigation was done and a search warrant was served for an American Express card,” Randles said. “Documents were received pursuant to a search. Those are the documents I received, yes sir.”
“But you did not do a follow up to determine what happened at that time?” Larson asked.
“No, I did not,” Randles said.
Larson took aim at Randles’ testimony on direct examination by Mandel as well as in his 2011 grand jury testimony with regard to the inception of the Colonies lawsuit settlement investigation and his general knowledge of the players involved.
Referencing Randles’ 2011 grand jury testimony, Larson asked, “You told that grand jury in 2011 that before November 1, 2008, you did not know who Jeff Burum was, correct?” Larson asked.
“That’s what I said, yes,” Randles responded, qualifying that by saying he was conscious of who Burum was only by name and that he was involved in the Colonies Partners.
Larson then focused upon an August 4, 2008 interrogation Randles and his investigator colleague Morey Weiss carried out with former sheriff’s deputy Bob Smith, who had worked for Postmus as a field representative. In that interrogation, Weiss said, “We realize Mr. Postmus has probably stepped into it with both feet more than once. We have got a lot of information coming in, bribes and what promises are being made, quid pro quos. So what we want to do now is we want to get the facts as they relate to Bill Postmus: where the money is coming in from, who it is coming from, what promises are being made, quid pro quos, flat out bribes, whatever the case is.”
Randles then says, “The Colonies suit that Jeff Burum was involved in, a lawsuit that they had against the county. The county paid out more than one hundred million for it. Are you familiar with…”
Smith interrupts Randles to say, “Not a clue.”
Randles continues to talk over Smith’s response, “…the decision and the fact that over legal advice, Mr. Postmus, being one of the supervisors, made the decision to pay this exorbitant amount to the Colonies in this suit in order to settle? This was against the advice of legal counsel. In fact there were two different firms out of L.A. that were involved in advising them that they could have prevailed in court, and if they had not prevailed in court, the amount they paid was way over what the judgment could have been.”
This, Larson suggested controverted Randles’ testimony under direct examination that he had not known about criminal allegations related to the Colonies settlement until Aleman brought it up on November 1 as well as his testimony before the grand jury that he did not know who Burum was.
“I was aware of some of the issues around the case,” Randles conceded.
Randles sought to deflect the suggestion that he had attempted to hide that a full blown investigation of the Colonies Lawsuit settlement was ongoing prior to the revelations Aleman provided. “The information that had come to me was that Mr. Postmus was taking bribes from developers,” he said, later clarifying under cross examination by Erwin’s attorney Raj Maline that the developer referenced in a We-Tip report about those accusations was not Burum.
At one point in the interrogation of Smith, Randles referred to the investigators as “elephant hunters.” While Larson suggested this implied he was going after Burum, who in other contexts, including the prosecution of former Rancho Cucamonga City Councilman Rex Gutierrez, was referred to as “the big fish,” Randles indicated the reference was to “big game” such as Postmus, who was the head of the Republican Party, i.e., an elephant, and, as a politician, higher up on the food chain than a developer.
Larson took issue with the investigation Randles had carried out into a paper message and a rat trap left on Aleman’s doorstep in 2010. The message read, “Have A Nice Life CI (Rat).”
A few months before, when criminal charges had been filed against Postmus and Erwin with regard to the Colonies lawsuit settlement, the information accompanying the filing had made reference to a “CI,” an acronym for a confidential informant. An analysis of the information provided by the informant and other particulars would support the conclusion, which later proved to be true, that Aleman was the confidential informant.
When Larson asked about the investigation, Randles said it had reached a dead-end. He had instructed Aleman not to handle the items when Aleman called to report finding them, Randles said, but Aleman had already done so. Randles said the note was tested four times for fingerprints by the sheriff’s department’s scientific investigations division, but that turned up only Aleman’s fingerprints and some smears.
Referencing that Aleman had pled guilty to falsifying and destroying evidence, Larson asked, “It never crossed your mind that maybe Mr. Aleman had put this document together to obstruct an investigation or submit false claims?”
Randles said the investigators considered that but had nothing to establish that is what occurred.