Mark Kirk

By Mark Gutglueck
Less than a week short of six months into the Colonies Lawsuit Settlement Public Corruption Trial, the prosecution rested yesterday, June 29, seeking to end with a flourish while parrying the defense’s relentless hectoring of its key witnesses.
Prosecutors had to nurse what was from the outset a largely circumstantial case that was hampered by the complexity of the oftentimes arcane nature of the civil suit between the Colonies Partners and the county over land use, development and entitlement issues which formed the backdrop of the alleged criminal activity. It was in seeking a favorable, indeed too favorable, outcome of that civil suit, the indictment alleged, that Colonies Partners principal Jeff Burum and his henchman, former sheriff’s deputies union president Jim Erwin, first extorted the two highest ranking county officials at that time, supervisors Bill Postmus and Paul Biane, through intimidation and blackmail. Then, after Postmus and Biane in November 2006 acceded to that extortion and voted with their board colleague Gary Ovitt to settle that lawsuit for $102 million, the indictment maintains, the Colonies Partners over the course of the seven months following the settlement kicked back separate $100,000 bribes to Postmus and Biane, disguised in the form of contributions to political action committees over which they or their political associates had control. And during that same seven month period, both Erwin and Ovitt’s chief of staff, Mark Kirk, were likewise provided with $100,000 donations to political action committees they set up during that seven month window after the settlement was made. The indictment characterizes the payments to Kirk and Erwin, the latter of whom had been hired as assistant county assessor by the time the $100,000 donation to his political action committee was made, as bribes as well.
The 29-count indictment naming Burum, Biane, Erwin and Kirk which alleged conspiracy, extortion, bribery, misappropriation of public funds, failure to report income, reporting violations, fraud and perjury was handed down by a grand jury in May 2011. That followed by a year and three months the filing of criminal charges against Postmus and Erwin in February 2010, involving what was essentially the same set of circumstances described in the indictment. The prosecution team, then consisting of the California Attorney General’s Office in the personages of Senior Assistant Attorney General Gary Schons and Supervising Deputy Attorney General Melissa Mandel and the San Bernardino County District Attorney’s Office in the personages of Supervising Deputy District Attorney Lewis Cope and deputy district attorneys John Goritz, Michael Abney and Reza Sadeghi, possessed the advantage of having obtained in March 2011 from Postmus guilty pleas on all of those charges, along with his agreement to turn state’s evidence and cooperate in the prosecution of the others. And indeed, Postmus, who had originally pled not guilty to the charges filed against him in February 2010 before caving the following year, went before the grand jury that indicted Burum, Biane, Erwin and Kirk in April 2010. It was largely on the strength of his testimony implicating them, taken together with the parallel testimony of Postmus’ one-time close political associate, Adam Aleman, that the four were indicted. Aleman was a very close affiliate and protégé to Postmus, whom Postmus had employed as a field representative when he was supervisor. When Postmus acceded to the position of county assessor in January 2007 following his election to that post in the November 2006 election, he created two assistant assessor positions where historically a single such position had existed. Postmus’ guilty pleas placed a tremendous burden upon the defense. The pleas legally established that the crimes alleged against him had been committed and set up the logical inference, given the conspiracy element contained in the charges against him, that the others were intertwined in his illicit activity.
More than five years elapsed following the indictment, during which intense rounds of pre-trial sparring between the prosecutors and defense attorneys ensued, including demurrer motions and other efforts to have the entirety or portions of the case dismissed or reestablished, and the charges narrowed or winnowed. Trial court decisions on those motions were twice appealed to and heard by the 4th District Court of Appeal. Those decisions were twice appealed to and once heard by the California Supreme Court. More than five years and seven months after the indictment and more than ten years and one month after the civil lawsuit settlement, the criminal trial began on January 4 of this year. At that point, ten of the counts had been tossed out and a corresponding number of the charges dismissed, including all of those pertaining to conspiracy and extortion.
During most of the first four months of the trial the prosecution found itself bogged down in the minutiae of the underlying civil case, the bare essentials of which it had sought to introduce as background for the criminal case. Relatively early on, indeed as early as the opening statements, the defense sought to dwell upon the civil litigation between the Colonies Partners and the county, which pertained to drainage issues at the Colonies Partners’ Colonies at San Antonio residential and Colonies Crossroads commercial subdivisions in northeast Upland. The prosecution utilized several county officials and county attorneys to illustrate the prosecution’s contention that the county had sound legal reasoning and a firm basis for resisting the Colonies Partners’ lawsuit and thus refusing to settle the case on the terms the Colonies were demanding. The defense attorneys, propounding that the Colonies Partners was entirely justified in bringing that lawsuit because of the county flood control district’s interference in the Colonies Partners’ efforts to proceed with the project on the timetable it was working to meet, “gave as good as they got,” countering the prosecution’s assertions, laboring to show the issues of the lawsuit from the Colonies Partners’ perspective, insinuating that the efforts to induce the members of the board of supervisors to settle the case were in some measure justified.
It was not until May 1, just shy of four full months into the trial, that the prosecution was able to get into gear, and delve fully into the gravitas of the case. On that day, Postmus took the stand and in the first-two-and-one-half hours of direct examination by San Bernardino County Supervising Deputy District Attorney Lewis Cope, he provided more riveting, dynamic and dramatic testimony than had been heard in the testimony of the previous 33 witnesses combined. Providing an unvarnished account of how he had first familiarized himself with Burum during a trade mission to China in September 2005 during which Burum befriended him and then lobbied him to settle the lawsuit, Postmus confirmed the previous testimony by numerous witnesses who said he essentially commandeered from Paul Biane the role of the major champion for forging a settlement of the civil suit. Burum provided him with an assurance of future financial support in his political endeavors, Postmus testified, as well as in any business ventures he might undertake if he left political life, and he said that they discussed Burum putting him on the board of a nonprofit corporation Burum had founded, but only if the litigation was settled first. Postmus testified that in the latter half of 2006, Erwin, working on behalf of Burum, had threatened to expose his homosexuality and Paul Biane’s financial travails to get them to support the settlement. Postmus said he considered the $102 million paid out to the Colonies Partners to be “ridiculously more” than the development company was due as a consequence of the litigation, but that the threats and promises of reward and the desire to put the whole thing behind him pushed him into the settlement.
After the settlement was effectuated, Postmus testified, the Colonies Partners came through with two separate $50,000 donations to the political action committees he had control over, the Inland Empire PAC and Conservatives for a Republican Majority PAC.
Under cross examination, defense attorneys, particularly Burum’s attorney Jennifer Keller, sought to take the edge off Postmus’ account as delineated through the non-confrontational guidance of Cope, establishing that a decade of increasingly heavy methamphetamine use had left Postmus’ memory spotty and rendered him into a highly suggestible state in which he was prone to accepting the representations of those he was engaged with at any given time, such that he would in large measure provide a version of events that adhered as much to the promptings of his questioner as the actual circumstance and activity he was being called upon to recollect. And Keller questioned Postmus about the plea arrangement he had with prosecutors by which he stood to have many of the felonies recorded against him reduced to misdemeanors and obtain lenient sentencing through his cooperation.
Nevertheless, Postmus had inflicted considerable damage on both Burum and Erwin, promulgating the prosecution’s case against them. Aleman followed Postmus to the stand and served to reinforce every issue of importance to the case enunciated by Postmus, and was very useful in filling in the blanks that existed as a consequence of Postmus’ questionable memory. In all respects, Aleman’s augmentation of Postmus’ account furthered the prosecution’s case. Defense attorneys launched a withering and savage attack upon Aleman, who, like Postmus, had experienced legal travails of his own as a consequence of the manner in which Postmus had converted the assessor’s office from one committed to its traditional function of determining the value of real estate, homes, buildings, businesses and assets for taxing purposes into one in which the office’s executive suite was installed with 13 political appointees, including Aleman, who knew nothing whatsoever about valuing real estate or residential, commercial, or industrial assets. Those political appointees, when they did show up to work, engaged themselves in efforts to promote the Republican Party both locally and statewide, as well as in assisting incumbents or would-be office holders with their campaigns. Aleman was in charge of these illicit political activities, and when an investigation into those abuses of public facilities, personnel and equipment in the assessor’s office was taken up in 2008, he panicked and personally destroyed or altered or ordered the destruction or altering of county equipment and documents. He then perjured himself when he was called to testify before the civil jury. He was arrested and charged with vandalizing county property, the destruction and altering of public documents and perjury on June 31, 2008. That led to his secret plea deal with prosecutors on November 1, 2008, which was officially entered into on the one year anniversary of his arrest. In the meantime, he had provided district attorney’s office investigators with a wealth of information about the scandal in the assessor’s office and the settlement of the lawsuit with the Colonies Partners, and he agreed to use recording devices to record his phone conversations and face-to-face contact with Postmus and others, in addition to providing the district attorney’s office with over 1,000 text message exchanges he had with Postmus thereafter. It was information provided by Aleman upon which much in the subsequent prosecutions of Postmus and others in the assessor’s office as well as those involved in the Colonies lawsuit hinged.
While under cross examination, Aleman was assailed from all sides by defense attorneys who questioned him extensively with regard to his convictions pertaining to falsification of public documents and false utterances before the grand jury. They highlighted discrepancies in his early accounts of wrongdoing relayed to investigators and subsequent statements, testimony before the grand jury that indicted Burum, Biane, Erwin and Kirk in 2011 and his testimony on direct examination in the current trial. They suggested he had fabricated much if not all of the allegations at the basis of the case being prosecuted with regard to the Colonies lawsuit settlement because he had been led to understand by the investigators that they were hunting “big game,” i.e., high ranking political and government officials and the powerful and wealthy elements of the business community backing those politicians. These fabrications, the defense attorneys maintained, were the means by which Aleman was seeking to leverage leniency for himself.
And while Aleman did not escape coming off as a somewhat craven personage who at the age of 21 in 2004 had grasped Postmus’ coattails to soar with him into San Bernardino County’s political stratosphere where he had shared in the spoils of corruption that festered at the apex of county government and then, when the long arm of the law reached into that den of inequity, betrayed his benefactor and patron Postmus in an effort to save his own skin, defense attorneys were not capable of fully dispelling the notion that Aleman had in fact sat as a front row spectator to the height and depth, width and breath of that corruption, including the events surrounding what was – at $102 million – by far the largest lawsuit payout in county history to satisfy the greedy demands of a development company relating to a drainage ditch.
In the subsequent days of the trial, including all four days this week, the prosecution sought to maintain that momentum, continuing to offer what by some interpretations, at least, was strong evidence in support of the prosecution’s theory of guilt. Following Aleman’s departure, the prosecution called Dennis Wagner, who had been hired by Postmus in 2006 into the position of county counsel – the county’s top ranking in-house lawyer. Wagner’s firm had represented Postmus in some personal legal matters in the mid-2000s, and Postmus believed he could trust Wagner to carry out his dictate that the office of county counsel get on board with settling the lawsuit on terms amenable to the Colonies Partners. But Wagner had sized up the legal and factual issues that litigation entailed and came to the conclusion that the county should soldier on in fighting the Colonies Partners in court. He continued to feel that way even after the county had suffered a setback in trial in the spring/summer of 2006, shortly after he became county counsel and Judge Christopher Warner made findings adverse to the county. Wagner supported his underlings and the county’s outside counsel who were in support of appealing Warner’s ruling to the Fourth Appellate Court. He testified to all of this at trial earlier this month and withstood defense efforts to provoke and discredit him.
Last week and continuing into this week, the prosecution used the lead investigator assigned by the district attorney’s office to the case, Hollis Randles, to provide a fuller dimensional perspective on the evolution of the investigation into the matter. During his first two days on the witness stand, California Supervising Deputy Attorney General Melissa Mandel had Randles recite how he and his fellow investigators were alerted to the issues at the heart of the Colonies lawsuit settlement while they were interrogating Aleman with regard to the issues growing out of the assessor’s office scandal, and their back-and-forth with him was enlarging to cover issues of wrongdoing involving the entirety of the county’s governmental structure.
Randles testified that Aleman had alerted him to the nature of the extortion element of the case consisting of threats to expose Biane’s financial difficulties and Postmus’ drug use and homosexuality to the county’s voters through “hit piece” political mailers. He testified further that Postmus told him he had an exchange with Burum in which the latter made a reference to Postmus’ homosexuality, which, Randles testified, the politician said “freaked him out” and by which Postmus recognized Burum was “sending him a message.” While the extortion charges are no longer part of the case, the activity related to it is considered relevant to the charges against both Burum and Erwin relating to aiding and abetting Postmus and Biane in receiving a bribe to influence a vote, and against Biane in the charges of receiving or agreeing to receive a bribe to influence a vote and of asking for a bribe to influence a vote.
Defense attorneys struck back by showing Randles’ representation that his investigation gravitated to the Colonies lawsuit settlement issues only after Aleman vectored them toward it was controverted by the consideration that he and his colleagues had taken up an investigation of anonymous reports that Postmus was being bribed by developers, and that in August of 2008, more than two months before Aleman had made his first statement to the investigators with regard to the situation pertaining to the county’s settlement of the lawsuit with the Colonies Partners, Randles had given a pithy synopsis of the settlement, the county’s lawyers’ opposition thereto and the suspicions it had raised. Moreover, Burum’s lead attorney, Stephen Larson, fought and won an uphill battle with Judge Michael Smith in an effort to obtain permission to explore with Randles logical areas of inquiry pertaining to the case which his investigation did not cover. In particular, Larson established, Randles had pulled up short of determining Burum’s whereabouts in mid-November 2006, when supervisor Josie Gonzales was at a trade mission in China. Randles had further neglected to ascertain exactly where Gonzales was in mid-September 2005, when Burum was at an earlier trade mission to China involving San Bernardino County officials. In her testimony in March, Gonzales had stated that she had been approached while she was in the lobby of the White Swan Hotel in Zhengzhou by former state senator Jim Brulte, who was working as a consultant to the Colonies Partners at that time. Brulte, she said, asked her to engage in a night on the town with him and Burum, who, she said, was also there. She initially said that incident occurred in September 2005, and that she had taken refuge in her room to avoid further contact with Brulte and Burum, since she felt it improper to be cavorting with them while the lawsuit was still pending and that she might put herself into a compromising position by doing so. Information churned up by investigators working for the Burum’s legal team and presented at trial, however, demonstrated unequivocally that while Burum was present in China during the September 2005 trade mission, he was stateside in November 2006. Moreover, those investigators determined and found unequivocal evidence presented in March to the two juries hearing the case that Gonzales was not in attendance at the September 2005 trade mission to China but had attended the one in November 2006. Larson demonstrated last week that Randles and his investigative team had, through the issuance and serving of search warrants, access to several items that documented Burum’s comings and goings in 2005 and 2006, including his passport and credit card statements, which demonstrated in the case of his passport that he had not left the country in November 2006 and in the case of his credit card charges that he was at various places in Southern California while Gonzales and other county officials were in China.
This week, on Monday, Rajine Maline, Erwin’s attorney, continued the cross-examination of Randles he had begun last week. Maline pressed Randles with regard to the “mockups” of the hit mailers targeting Postmus and Biane that Aleman claimed to have seen in the months prior to the settlement vote on the Colonies lawsuit, the fall of 2006, which corresponded with that year’s election season prior to the November 7, 2006 election. Aleman told investigators and the juries that he had seen them at Erwin’s office with the Safety Employees Benefit Association (SEBA), where he was then the executive director of that organization. Erwin had formerly been the president of the Safety Employees Benefit Association, the collective bargaining unit representing sheriff’s deputies, which was active with regard to a vast array of political issues in the county. Aleman said he could not remember whether the mockups he saw were on a computer screen as a display of the mailer in digital form in one of the computer’s files or whether they had been printed out.
No actual mailers nor electronic versions of them were produced at the trial by the prosecution. Maline sought to exploit that. He further noted that Aleman had “given different accounts of the mailers he had seen and how they were disseminated to Mr. Postmus and Mr. Biane. Did you ever fact check Mr. Aleman or confront him on any discrepancies in the description of the mailers?” Maline asked Randles.
“He was questioned about the mailers many times,” Randles responded.
“He said he saw some mailers on Mr. Erwin’s computer,” Maline said. “How many search warrants were issued as part of this investigation?”
“Sixteen,” Said Randles.
“Did you ever execute a search warrant on the SEBA computers?” Maline asked.
“I did not,” Randles replied.
“Why didn’t you execute a search warrant on any of the SEBA computers?” Maline asked.
“It was discussed,” Randles said. “It was decided by the team not to pursue that because it would have shut down SEBA by shutting down all of their computers. The decision was made by the team not to pursue that, because it would’ve involved shutting down SEBA.” Randles said it would have been “feasible if there are one or two computers” but “if there are dozens of computers it’s not feasible. We did not know which computer was Mr. Erwin’s old computer.”
“Did you ask anyone which was his?” Maline persisted.
“It was decided that doing so would shut down SEBA,” Randles intoned.
In addition to the bribery-related charges that all the defendants are facing, Erwin is further charged on a handful of counts that are not applicable to the others, ones relating to his failure to report gifts and accommodations he received from Burum in the aftermath of the lawsuit settlement, a trip to New York City and then to Washington, D.C. on January 29, 30 and 31 of 2007, which included lodging, meals and entertainment worth $1,566.69, along with a Gold Rolex Daytona watch valued at $12,765 Burum purchased for him at Tourneau Time Machine Watch Store at the corner of 57th Street and Madison Avenue in New York City on January 29, 2007.
Erwin had been hired as assistant assessor by Postmus on January 7, 2007, just a little more than three weeks before he took the flight to New York, Washington, D.C. and back to Ontario on Burum’s private jet. He was required as a high ranking county official to fill out a Form 700, a state document in which governmental officials with decision-making authority are required to disclose their economic interests. When he filled out the Form 700 for first time on February 7, 2007, just a week after he had returned from Washington, D.C., he failed to note having received the watch and the trip and accommodations from Burum. Maline noted that Erwin had just moved into the assistant assessor’s position and had never before been required to file a Form 700 and had been given no tutoring on how to complete the form.
Nearly two years later, on January 15, 2009, a bevy of district attorney’s office investigators decamped at his Highland home at 7:30 in the morning to serve a search warrant in which a primary object sought was the Rolex along with any other materials relating to his finances and taxes. On February 4, 2009, Erwin amended his Form 700 to include the watch, trip and accommodations from Burum, listing them as income provided to him for his assistance in resolving the Colonies litigation. On March 19, 2009, district attorney’s office investigators arrested Erwin on a felony warrant of having committed perjury in originally filling out the Form 700.
Maline established from questioning Randles that he knew that Erwin had come forward in November 2007 – a year prior to Aleman’s statements with regard to wrongdoing in both the assessor’s office and with regard to the Colonies settlement – with information about malfeasance in the assessor’s office. Maline asked him why he had not simply approached Erwin directly and asked him about the watch and the trip to New York and Washington, D.C. instead of subjecting Erwin to the ignominy of having his house searched. Randles said that was done to protect the integrity of the investigation. Maline asked Randles why the investigators arrested Erwin, given that he had never previously filled out a Form 700. Randles said the arrest was made because Erwin had failed to amend the statement of economic interest prior to the search warrant being served.
“He was arrested because it wasn’t disclosed before he received information the investigation was underway and charges were coming,” Randles said.
Maline asked Randles, “Did you have a discussion with your boss, Mike Ramos about [arresting Erwin]?”
“I don’t recall if I talked to Mike Ramos at that time,” Randles said.
“Do you know if Mr. [Bob] Schreiber did?” asked Maline.
“I don’t know if he did,” said Randles. Schreiber at that time was the head of the public integrity unit’s investigators.
Mark McDonald, the lawyer for Biane, questioned Randles with regard to that part of the investigation pertaining to his client, in particular focusing on Matt Brown, who had been Biane’s chief of staff and whom investigators prevailed upon to surreptitiously record Biane in an effort to capture his boss making statements implicating himself in the alleged bribery conspiracy.
McDonald referenced “70 interviews with Matt Brown.”
“I did not have 70 interviews with Matt Brown,” Randles said.
There was some further exchange in which the reference to 70 conversations, a number which arose from previous testimony, appeared to pertain to conversations between Biane and Brown that Brown had recorded.
McDonald asked how many recordings of conversations between Biane and Brown there were “that he [Brown] turned over.”
“About 18,” said Randles.
“In all the interviews you had with Matt Brown, he never once admitted a quid pro quo or bribe,” McDonald said.
“That’s correct,” said Randles.
During redirect examination of Randles on Monday, Mandel marshaled a printout of a WeTip complaint which contained an allegation pertaining to Postmus not in his capacity as supervisor but as assessor, alleging he had taken payoffs totaling $1 million from developer Mike Gallagher in exchange for zoning changes, and that Postmus was assisted in this by Dino DeFazio, with whom Postmus was in a business partnership.
The assessor’s authority does not extend to zone changes.
Randles acknowledged the complaint. Mandel obtained further testimony from Randles pertaining to other complaints that had come into the public integrity unit relating to Postmus, one from April 2006 when Postmus was supervisor and another in which a security guard alleged Postmus had been provided with a bribe of an unknown amount in an envelope or brown bag at the Lake Delores Waterpark in Newberry Springs.
On Tuesday, on recross examination, Larson referenced a May 7, 2008 article in the Riverside Press-Enterprise that reported the Colonies Partners had made $400,000 in donations of $100,000 each to the political action committees tied to Postmus, Biane, Erwin and Kirk.
Larson asked Randles if he knew about the article, which was written by Duane Gang.
“I was not investigating Colonies,” Randles replied. “I was investigating Bill Postmus and the assessor’s office. I don’t read the paper that often, anyway.”
Randles said the article he was most conscious of was one from 2005, which related to a meeting held at Biane’s office on March 25, 2005 during which Postmus had dismissed the lawyers representing both the county and the Colonies Partners from the room and then he and Biane went two-on-two with Burum and the Colonies Partners’ co-managing principal Dan Richards in an effort to negotiate a settlement, with former state senator Jim Brulte, who was working as a consultant for the Colonies Partners, refereeing the match.
Larson’s question again raised the specter of when Randles and his team began their investigation of the settlement between the county and the Colonies Partners.
If Randles had not begun looking into the Colonies lawsuit settlement in earnest until after November 1, 2008, Larson asked, why did Randles dwell at length on the Colonies settlement when he had interviewed Postmus’ associate Bob Smith in August 2008?
Randles reiterated that he was looking into bribery allegations against Postmus with regard to a specific developer other than Burum, as well as allegations that Postmus was on the take.
“I was asking questions, but I was not asking about money being contributed by the Colonies as bribes,” Randles said. “I was aware of the Colonies litigation. I knew there was a $102 million settlement. I knew the process was being looked at as suspicious. There was suspicion about Bill Postmus with the Colonies Partners.”
Generalized suspicion, however, did not equate to an ongoing investigation, Randles said.
Randles said at that point he did not know about the political action committee contributions. Larson asked if anyone from Randles’ office had made that connection.
“That didn’t happen,” Randles said.
Throughout Larson’s cross examination, recross examination and rerecross examination of Randles, the investigator was simply overmatched by the widely experienced, well-prepared, highly skilled and erudite Larson, not to mention the disadvantage any witness testifying under the penalty of perjury must bear with regard to his questioner. At one point, however, the battered and bleeding Randles stood flatfooted and, refusing to back away, planted a rock solid rhetorical uppercut on the underside of Larson’s jaw.
In describing the suspicion that he and his investigator colleagues had with regard to Postmus and the Colonies Settlement, Randles used the term “exorbitant” in describing the amount of money the county had paid out. This characterization provoked Larson, who derisively threw the word back at the investigator. Randles did not recede, insisting the settlement amount was exorbitant. Larson again challenged Randles for making such a blanket assertion, suggesting that under the circumstances the $102 million payout could be justified.
Randles reasserted that the money conferred on the Colonies Partners was exorbitant and had, accordingly triggered suspicion. When Larson scoffed at that suggestion, Randles said, “$102 million is exorbitant under any situation.”
Larson inquired if Randles had deigned to speak with Burum or the Colonies Partners to obtain their input. Randles said he did not interview any Colonies Partners.
Larson asked about Dan Richards, Burum’s co-managing principal in the development company, in particular.
“At no time did I interview Dan Richards,” he said.
When Larson asked why he had not done so, Randles indicated it was to maintain the integrity of the investigation and prevent those who were targets from learning too much.
“I did not interview Dan Richards,” he said. “He is not required to tell the truth and I had the security of the investigation [to consider]. I try to find out the rest of the truth. I don’t always interview everyone.”
There was a peculiarity in the order of the questioning of Randles. The normal protocol for questioning a witness is that whatever side is putting on that part of the case, either the prosecution or defense, carries out direct examination. The defendant or defendants then engage the witness in cross examination. Cross examination is supposed to limit itself to issues explored in direct examination. Thereafter, redirect examination takes place, but only with regard to issues brought up during cross examination. Recross examination can then be done, but only with regard to issues brought up during redirect examination, and so forth. Last week, Mandel intended to play a recording of investigators’ interrogation of Mark Kirk. Yet on the morning that was to occur, Kirk’s attorney, Peter Scalisi, had taken ill and was not present in court. A decision, mutually agreed to by all parties and Judge Michael Smith, was made to suspend that portion of the direct examination of Randles pertaining to the interrogation of Kirk until after Scalisi was able to return and then allow that questioning to take place after all phases of the direct, cross, redirect, recross, re-redirect and re-recross were complete. Thus, on Tuesday of this week, the recording of the interrogation of Kirk was heard, with Randles on the stand.
The ambush interrogation was carried out on April 21, 2009, the same day Matt Brown, Biane’s chief of staff was similarly waylaid. Brown had been lured into the session by previous contact with his boss, Gary Ovitt, who had said both he and his chief of staff would assist the district attorney’s office in its inquiries.
Throughout the trial, the oftentimes diffused focus of the testimony has been less than fully explicative or supportive of the charges against the defendants, at times pertaining to issues afield and further afield of the issues of criminality. And while there has been testimony and evidence put on that supports and at times strongly supports elements of the indictment, the primary focus of that testimony has been on Burum and Erwin. Relatively early on in the trial there was testimony from Anthony Riley; Riley’s mother Kathy Rough; Kitty Stennett; and Curt Hagman, all of whom were involved as officers with the political action committee that Kirk had set up – the Alliance For Ethical Government – into which the Colonies Partners had contributed $100,000 more than five months after the settlement was voted upon. Aleman and Postmus had offered some brief testimony with regard to Kirk’s stewardship of the committee as well. The recording of the April 21, 2009 interrogation of Kirk played for both juries hearing the case on Tuesday stands as the strongest and most comprehensive of the evidence offered by the prosecution against Kirk, coming just one day before the prosecution rested its case against him, Biane and Burum. Nevertheless, the recording itself is not a smoking gun but rather an encapsulation of both theory, propounded by the investigators in their questions, and admissions and concessions from Kirk which, while certainly problematic, are less than fully implicative. With regard to two matters, the frequency of his communications with Burum during the crucial period leading up to the settlement and the impetus for the creation as well as the actual formation and constitution of the political action committee, Kirk dissembled or prevaricated. At another juncture he appeared to be repeating to investigators the less-than-accurate talking points relating to the lawsuit prepared by the Colonies Partner’s publicist Patrick O’Reilly when he told the investigators that the county had consistently lost during all phases of the litigation against the Colonies Partners and that the county did not have strong legal representation. Kirk was also at a total loss to explain why it was that the Colonies Partners chose to confer on his political action committee a $100,000 donation. In most other respects, Kirk was offering what appear to be genuinely candid responses as he earnestly sought to cooperate with the investigators, who were from the outset gunning to inveigle him into answers that they could contradict with evidence they possessed or statements that would both implicate himself and give the investigators and prosecutors leverage by which they might corral him into serving as an informant for them in gathering information from others. The entirety of the interview was not played in court, based upon the objections of Burum’s attorney Stephen Larson, who insisted on preserving his client’s Sixth Amendment right to confront any of the witnesses against him, based, apparently on the nature of some of Kirk’s statements which were not favorable toward Burum. It is presumed at this point that Kirk will stand on his Fifth Amendment right to not testify himself. This would prevent the attorneys for Burum from questioning Kirk with regard to his utterances.
In the recording, Randles is heard asking, “Did you have any involvement in that settlement agreement where Colonies Partners was paid $102 million dollars by the County of San Bernardino?”
“Not directly,” Kirk responded. “I serve in an advisory capacity to my boss.”
“How did that go?” Randles asked
“Fine,” said Kirk. “My boss and I have pretty much been on the same page since day one. When the actual settlement agreement took place, it was in closed session and I’m not a part of closed session.”
“And what part did you take in these negotiations or these discussion or in advising your boss on this lawsuit settlement?” Randles asked.
“Well, I’m not a part of any of the negotiations,” said Kirk. “But I am a part of, kind of a sounding board, if you will, for my boss and we talk about what makes good policy. And so, I believe that the chair and vice chair [Postmus and Biane] worked with county counsel to be the primary negotiators, if you will, for that.”
“And Gary Ovitt, what was his part in negotiations of this lawsuit settlement?” Randles asked. “Did he become involved in some of the negotiation talks?”
“Not to my knowledge,” said Kirk.
“Never?” an unconvinced Randles asked.
“Not to my knowledge,” said Kirk. “Not to my recollection”
“And what [were] you advising your boss, Gary Ovitt, on this lawsuit settlement?” Randles asked. “What form did that take? Were you communicating with certain people about certain aspects of the settlement? How did that take place?”
“I almost exclusively talked to my boss about it because my loyalty, if you will, is to help him to give him advice that I think is the best decision for him to make and for the county, for the county taxpayers,” said Kirk. “And so there were a few conversations that I think we had at various times with other supervisors. But that’s all I can think of at this time.”
“How did you derive your decision from what advice to give to your boss where this is concerned?” Randles asked.
“Well, most of the dynamic that was being effected were the court decisions that were coming down,” Kirk said. “So, during the course of that, we had two court decisions that really changed the dynamics of what was being talked about and what was a fair settlement. And every now and then those things that were being talked about and some sort of negotiation settlement agreement would come back to closed session. My boss would come back. We would talk about it sometimes and I would give him my opinion on what I thought and then whatever decision he makes in closed session is outside of my…[purview].”
“And how were you advising your boss, Gary Ovitt, where this lawsuit settlement was concerned?” asked Randles.
“Well, I believed at the very beginning that the county needed to settle and that every time the county went to court, it seemed like we lost and the dollar amount went up. And I try to make things as simple as I can so that I can understand them best and looking at the track record, of the history of this lawsuit back to its inception, you’ll see there’s a steady track record of it going from $25 million to up and up and up and up and up and up, and usually those are associated with court cases or court judgments and decision that almost exclusively went against the county,” said Kirk. “There were at least two law firms that were representing the county and advising the county where the suit was concerned.”
“Did you have any access to their decision, their briefs where this lawsuit was concerned?” asked Randles.
“I didn’t have any interaction with any of the outside attorneys directly,” said Kirk.
“Were you aware that they were advising against settling?” Randles asked.
“I was, through my boss,” said Kirk. “[It was] one of the things that we talked about,” said Kirk. “Any conversation with lawyers regarding it would have been with Mitch Norton, who is the [deputy] county counsel [assigned to the Colonies Partners matter]; this was on his plate.”
Randles at that point moved the interview toward the realm of interrogation, which Kirk does not yet seem to recognize.
“What interaction did you have, if any, with Jeff Burum?” Randles asked.
“I see Jeff,” said Kirk said. “I’ve been seeing him at social events and functions. He seems to be a really nice guy.”
“At the time of this lawsuit being brought against the county, prior to the settlement, what interaction did you have with Jeff Burum?” Randles asked.
“I think that is consistent of all the interactions I’ve had with Jeff, so I don’t…” Kirk said, interrupted before he completes the thought.
“How long have you known him?” Randles asked.
“I think I first met him when my boss was running for county supervisor,” said Kirk.
“Was that in 2004?” Randles asked.
“Yes,” Kirk said.
“And you met him in what context? Where?” Randles asked.
“I really don’t remember the first time I met him,” said Kirk.
“A social event?” asked Randles.
“Probably,” Kirk responds. “I’ve said this to the newspapers a couple of times: ‘His wife was one of my boss’s students and so the families have known each other for a very long time.’”
“And so you know her, Jeff Burum’s wife, through the fact that she was Gary Ovitt’s student?” Randles said.
“I would say that I know all of these individuals through Gary Ovitt,” said Kirk. “I’m just saying that it was not uncommon to run into Jeff at a social function – because the families have known each other for a long time – if they were at the same event and say, ‘Hi.’”
“Did you socialize with him yourself, absent Gary Ovitt?” Randles asked.
“I’m sure there were times that I did,” said Kirk.
“And how so?” asked Randles. “Did you go to dinner with him at his house or out to dinner at different places?”
“I’ve been at his house once for a fundraiser,” said Kirk. “It was a fundraiser for the governor and there many people there.”
“For Governor Arnold Schwarzenegger?” asked Randles.
“Correct,” said Kirk.
“Do you contact Jeff Burum on a regular basis with your cell phone?” asked Randles.
“Not on a regular basis,” said Kirk. “But I’ve talked to him a few times.”
“A few times?” said Randles, skeptically.
“Mm hmm,” Kirk indicated.
“How often?” Randles continued.
“Oh, I don’t know,” said Kirk. “Maybe once a month. Twice a month, maybe.”
“And in what context to you talk with him once a month?” asked Randles.
“Normally, it’s just a social thing to say, ‘Hi,” and make sure that he knows, you know, that I exist and my boss exists,” said Kirk. “There have been times where I have asked him his opinion, as a businessman, as a successful businessman, how organizational structure should run or programs should run. But those are done in a kind of hypothetical sense.”
‘And how often does he call you?” Randles asked.
“I think that once a month or twice a month covers both,” said Kirk.
“Either him calling, one of the two of you initiating,” said Randles.
“I would say so,” said Kirk.
“Do you think you initiate more than he does or does he initiate more than you do?” asked Randles.
“I have no idea,” said Kirk. “He’s not one of my frequent callers or frequent fliers on my phone.”
“Has he ever made any request of you in your capacity as chief of staff to Gary Ovitt as far as, say, finding somebody a job?” asked Randles.
“No,” said Kirk.
“Never?” Randles persisted.
“Not to my recollection,” Kirk responded.
“Did he implore you where Ted Lehrer was concerned, and try to find Ted Leherer a positon?” Randles asked.
Lehrer was a political associate of Bill Postmus.
“No,” said Kirk.
“So you have conversations with Jeff Burum once or twice a month?” Randles inquired. “Do you meet with him often or are these mostly phone conversations?”
“No,” said Kirk. “Mostly phone conversations.”
“Okay,” said Randles. “You guys have a pretty good relationship?”
“I don’t know what you’d call a pretty good relationship,” said Kirk. “I like Jeff. I think he’s a nice guy and I obviously respect his opinion. I wouldn’t call him and ask him questions from time to time if I didn’t.”
Where the recording played in court on Tuesday next picked up, investigator Morey Weiss joined in with Randles in questioning Kirk.
“I want to go back to the hundred and two million thing again,” said Weiss. “If I remember what you said, there were lawsuits or law actions or some type of action that took place and it was like the price kept going up each step of the way. Why do you think that happened? Why didn’t somebody just say, ‘Let’s stop this madness?’”
“Well, again, every time the price for settlement went up, there was a corresponding loss in the legal system,” said Kirk. “There was a time before my boss was on the board of supervisors where settlement dollars were twenty five million dollars. I can speculate as to why people didn’t settle at that time, but that was the right thing to do at that time rather than continue to lose in the courts and [in] the final judgment against the county there was a rather significant, I think a pretty strong admonishment by the judge to the county and their witnesses.”
“Did you at the time this $102 million settlement was being negotiated or before it was settled, did you express to Gary Ovitt that you thought that this thing should be settled in favor of the Colonies Partners?” Randles asked.
“Well, like I said, from the beginning of his term in office, we believed that the county needed to settle this for the lowest dollar amount that was possible,” said Kirk.
“Who is we?” Randles asked.
“Well, my boss and I were on the same page,” responded Kirk.
“Did you take pains to convince him that this was the right thing to do?” Randles asked.
“No,” said Kirk.
“Do you have a political action committee or you had a political action committee, Alliance for Ethical Government? Who was the initial contributor to that PAC?” Randles asked.
“Colonies,” Kirk responed.
“How much did they contribute?” Randles asked.
“I believe it was $100,000,” said Kirk.
“And what was the purpose of that large contribution from Colonies Partners?” asked Randles.
“I don’t know,” Kirk said. “This is what I’ll say about the political action committee. It was formed. I was brought on, asked to do some consulting work. It’s one of the things that…”
“Who formed it?” Randles interrupted Kirk.
“A group of concerned citizens,” said Kirk.
“Were you one that…” Randles began.
“I helped to form it,” Kirk interrupted Randles. “Correct. That’s one of the things that I do when I consult for organizations.”
“What was your part in forming this PAC?” Randles asked.
“Well, what I am able to do for people who want to be involved in the political process is I know people in Sacramento,” said Kirk. “I know treasurers. I know how to start political action committees. I know how to fundraise. I know how to do mail. I know how to do phone calls. And so I’ve done that for probably close to ten committees, or individual candidates since my boss has been elected.”
“Going back to my first question, why this large $100,000 contribution from Colonies Partners to this PAC, the initial contributor? What was the purpose of that?” Randles asked.
“I don’t know what the purpose of that is,” Kirk said. “I don’t know why they gave that significant of an amount of money.”
“They were the first contributor?” Randles asked.
“We were in the process of setting it up,” Kirk explained. “They found out about it.”
“How did they find out about it?” Randles asked.
“I don’t remember how they found out about it,” Kirk said.
“So it was not set, it was not fully set up when they came to you and said they wanted to give a donation to it?” Randles asked.
“Correct,” said Randles.
“You said there was a group of concerned citizens that were involved in this,” Randles said.
“Correct,” said Kirk.
“Who were the other citizens?” Randles asked.
“I’ve said this to the media that asked the same question; ‘I don’t feel comfortable saying who those individuals are because…’’
Randles interrupts Kirk to tell him he has the financial records for the Alliance for Ethical Government which were seized during a search of the home office of Betty Presley, a Santa Margarita-based accountant who provided accounting services for a host of Republican politicians and their various political and campaign committees. Randles read an email from that file in which Kirk told Presley and her associate Jenny Eves “I’d like to create a new PAC just like WVYR [West Valley Young Republicans, another political action committee set up by Kirk] titled the Alliance for Ethical Government. Can we set that up as soon as possible? Thanks ladies,” the email stated.
“Did you direct expenditures from this PAC [political action committee to different candidates?” Randles asked.
“I made recommendations,” Kirk responded.
“In other words, there are emails from you to Jeneves or Betty Presley directing monies be spent,” said Randles.
“I’m sure there are,” said Kirk.
“A hundred thousand dollars was made to this PAC, which was established by you, from Colonies Partners, but you have no idea why?” Randles asked.
“I don’t know what the intent was of the donors,” said Kirk. “I never know the intent of donors. I do know that I was never given any direction, advice, suggestions on how that money should be spent by any of the donors.”
“Well, maybe not,” said Randles. “I’m just trying to find out why Colonies Partners would contribute a hundred thousand dollars to a PAC that you control.”
“Well, again, I don’t think it’s fair to say I control it,” said Kirk.
“I’ve yet to see an email in this file that’s from anyone else directing expenditures,” said Randles. “Only you.”
“Well, typically people who, treasurers or consultants, I work with only kept contact with me,” Kirk said.
“This contribution was made by Colonies Partners to the PAC, the Alliance for Ethical Government PAC, it indicates, on May 25, 2007. Are you aware that on 11/07/2007 you withdrew $10,000 from the PAC? Is that correct?” Randles said, intensifying the exchange yet more.
“Withdrew $10,000?” Kirk responded
“Well, you paid yourself $10,000 from the PAC,” said Randles.
“The committee paid me $10,000 for the consulting work that I did,” Kirk said. “And I believe there was a subsequent $10,000 payment.”
“Another one, $10,000 on April 23, 2008,” Randles said. “Ten thousand dollars to Mark Kirk. What was that paid for?”
“For my consulting services,” Kirk responded. “As I said, I put together, I oversee mail that’s done, phone calls that get made, work that gets subbed out. I make sure that Betty [Presley] gets things put the way that she likes them.”
“So $20,000 was paid you for that?” Randles said.
“For a couple of election cycles
“On 9/95/2007 there was $10,000 that was made to the Committee to Elect Gary C. Ovitt. So $10,000 was paid out of this PAC into Gary Ovitt’s committee. Is that a contribution made to him for his election?” asked Randles.
“I believe he had a fundraiser around that time and the committee made a contribution,” said Kirk.
“That was on 9/25/2007. On 3/24/2008 the Committee to Elect Gary C. Ovitt gave $10,000 back to the PAC. What is the purpose of that?” Randles asked.
“At the time, we, as you can tell, we were in the middle of an election cycle and needed to do some fundraising and so he contributed $10,000,” Kirk explained.
“So, you gave him $10,000 and he gave it back?” Randles said.
“I don’t think it was the exact money that went back and forth, but at one time the committee made a $10,000 contribution and a few months later he contributed back to the committee,” Kirk said.
At this point it is dawning on Kirk that he is the focus of the investigation.
“I may be a little confused,” Kirk said. “Have I done something wrong, in terms of that or…” Kirk said.
“We’re looking for something here,” said Randles. “We ask you who these group of concerned citizens were that were involved with it that would have some control over this PAC other than you. I’ve been through this file. I’ve done spreadsheets on it. I’ve been through every swinging piece of paper in here a couple of times and I’ll be real honest with you, I’ve seen nothing in here except your name as far as directing money.”
“If you ask Betty, she will tell you that we had to have committee members and … I am surprised because there was a period shortly after the committee started where she wouldn’t take emails from me anymore without confirmation that a majority of the board had approved,” Kirk said.
“So, who is the board?” Randles asked.
When Kirk didn’t respond, Weiss repeated, “So, who is the board? That’s what we’re asking here.”
“Sure,” said Kirk. “I understand what you’re asking.”
“We need to clarify the information,” said Randles. “That’s what comes out that we want. We want to show that everything’s okay. All right? That’s what it comes down to.”
“I understand that question and I’ve been hesitant to answer that to date,” Kirk said.
The next part of the interrogation was not played for the jury. When the recording resumed, it was Morey Weiss doing most of the questioning.
“First of all, there are samples of all the work that I oversaw and was a part of,” Kirk is heard saying. “So there’s plenty of work product to show that I oversaw and what went out. Betty Presley should have a copy of all those I oversaw – these projects – and worked for that money. You don’t pay yourself without doing the work. If you were to ask Betty, she would be able to corroborate my story on this.”
“So the minutes of the meetings were sent to Betty?” Weiss asked.
“It is my understanding that took place, yes,” said Kirk.
“Who sent them?” Weiss asked.
It is my understanding that Anthony Riley sent those and he’s on the committee reports.
Anthony Riley was also getting money, wasn’t he?” asked Weiss.
“He was, per the bylaws of the committee,” Kirk said.
In February Riley testified he was recruited by Kirk to act as the recording secretary for the Alliance For Ethical Government, and served as a prime mover in the completion of its registration with the California Secretary of State. Riley installed his mother, Kathleen Rough, as the committee chairwoman and Kitty Stennett as vice chair. Rough testified that she had no recollection of being put in the role of chairwoman and Stennett said she did not learn that she was vice chair until she was summoned to appear before the grand jury in 2011. Stennett and Rough testified they had never attended any of the meetings of the committee’s board. In February Riley testified that he had been paid $250 on a regular basis for his function as secretary but that he had made no minutes of the meetings. “I don’t have any records or minutes,” Riley said. “That was allotted to me to perform that duty. Obviously, I did not perform it very well. I can’t even recall specific meetings.”
During the April 21, 2009 interrogation, Weiss asked Kirk, “So how many meetings do you think they [the alliance’s board members] had?”
“I don’t know,” said Kirk.
“Because for $5,500 [the amount of money Riley received], I’d like to get that job,” said Weiss.
“Well, that wasn’t all he did for the committee, but that was a big part of the committee,” Kirk said, in an effort to defend Riley.
“In addition to that, he got another $200, $2,665, $981, $372, contributed toward, I believe it was mailers for his campaign,” said Weiss. “So was there anybody on this group of concerned citizens that went to these board meetings that isn’t on this paperwork I have?”
“Yes,” said Kirk.
“Who?” asked Weiss.
“Again, I don’t feel like it’s my place to answer that question at this time,” said Kirk.
“Let me explain something, Mr. Kirk,” said Weiss. “We’re not trying to play games or anything like that.”
“I understand that,” said Kirk.
“I think it is the time to do it,” said Weiss. “If you tell us who it is now, we can go talk to the person, whatever we need to do. We do things as discrete as humanly possible As you know, it’s a very political atmosphere out there. We deal with it on a daily basis But if we don’t know who they are and then all of a sudden these names come up to us later, it’s going to mean…”
“I understand,” Kirk said, capitulating. “I’ll share with you those names. Let me just tell you why I’m hesitant to share those names.”
“Okay,” said Weiss. “That’s fair.”
“Because in politics, discretion is quantitative and if people can’t trust you to work on a political strategy or put something together and not keep your mouth shut, then you’re never going to get another job,” said Kirk. “So, I’ve always been hesitant to discuss this with the media because I enjoy doing political work.”
“We’re not the media,” Randles interjected, adding somewhat menacingly, “We’re investigating crimes.”
“I understand you’re not the media and I don’t want to be difficult,” said Kirk. “So, I’ll share with you the committee members that I know. Anthony obviously was a committee member. A woman by the name of Kitty Stennett was a committee member. And another woman by the name of Kathy Rough was another committee member. I know those three. I don’t know if there were more than that.”
“Did you have a vote?” Weiss asked.
“No,” said Kirk.
“The committee is now terminated,” said Weiss.
“It is,” said Kirk.
“You finally spent all the funds in that committee?” Weiss asked.
“Right,” said Kirk.
“Okay, who kept the minutes at the meetings?” Weiss asked.
“Well, Anthony [Riley] would’ve,” said Kirk.
“Anthony would’ve?” asked Weiss.
“Yes,” said Kirk. “Now, well, when we started this conversation, I felt pretty comfortable that I wasn’t a target of anything. I’m starting to feel a little bit less comfortable in that. I can just tell you I’ve never… No quid pro. There was never anything offered there. There was nothing that took place. But, if that’s not the case, if, then I need to know that things have changed.”
“We’re not making any accusation toward you at all,” said Weiss.
“Okay,” said Kirk.
“Obviously, the tone that the conversation’s gone, we’re concerned about some things,” said Weiss
“Sure,” said Kirk.
“By getting the information now, we may be able to deal with those situation, okay?” said Weiss.
“Well, I know the money I was paid from the PAC… I was paid for work that I did,” Kirk said. “It’s consistent with other jobs that I had from other political committees or individual committees, you know, candidate committees. The price is commensurate with the work that I’ve done on other committees as well.”
The following portion of the recorded interrogation was not played for the juries. When the playing of the recording resumed, Randles was again handling the questioning. He at that point moved to an issue that is of some moment in the prosecution. Prosecutors maintain that Kirk delivered Ovitt’s vote on behalf of the settlement. They maintain he was able to do so because he dominated his boss and was able, essentially, to dictate to him how to vote.
“You’re a pretty strong personality,” Randles said. “You’ve been around for a while. People pay attention to you. They listen to what you’ve got to say.”
“I wish they didn’t,” Kirk retorted.
“I believe your boss does, too,” said Randles. “I believe that Gary Ovitt defers a lot to you on a lot of things, a lot of issues. I don’t know if he is as strong willed. And I believe that you have a lot of influence over Gary Ovitt.”
“Gary and I are friends,” said Kirk. “He respects me. I respect him. Quite frankly, if I could be more like Gary, I wish I could.”
“He’s a gentleman,” said Randles.
“He’s a great role model,” said Kirk. “Gary is a very smart man. And people have never quite understood our relationship. I’ve always believed that a chief of staff needs to compliment their boss, figure out where their boss was weak and be strong in those area. My boss doesn’t like conflict. He doesn’t like, you know, certain things that most people attribute to a strong personality. He doesn’t like to be the bad guy and I’ve taken that upon myself to fill that role. In policy decisions that get made, I absolutely voice my opinion. But there have been many times that my boss has disagreed with me and has made his own decision on where to go. Fortunately, we agree more than we disagree. Otherwise, I don’t think I would be in that position.”
Again, a portion of the recorded interrogation was skipped and the jury next heard Randles asking Kirk, “You know your PAC wasn’t the only PAC that got one hundred thousand bucks. You know that?”
“Of course, I know,” said Kirk. “I’ve read the newspaper and that’s one of those things where…”
“You knew about it before that,” Randles said, interrupting him and with a twinge of malice in his voice.
“I did?” said Kirk. “I didn’t know about it at the time. At the time I was myopic. I was focused on, ‘Am I going to run for supervisor? Am I not going to run for supervisor?’ If I knew then that all these PACS were getting money…
Randles again cut his answer off, asking, “You know who these PACS are controlled by, right?”
“I know some of them,” said Kirk. “I don’t know all of them.”
“Well, we can educate you, then,” said Randles. “You know one was controlled by Bill Postmus?”
“I did not know that,” said Kirk. I knew…”
“You didn’t know that?” Randles intoned, incredulously.
“I knew that there was one that was Jim Erwin’s and there was one that was Matt Brown’s,” Kirk said.
“Yeah,” said Randles. “Bill Postmus, Jim Erwin, Matt Brown, who was Paul Biane’s chief of staff and yourself, who was Gary Ovitt’s chief of staff. Who voted to approve and settle the Colonies lawsuit in favor of Colonies for $102 million?”
“I understand it doesn’t look good,” Kirk said. I understand that.”
“And that you just got $100,000 in your PAC,” said Randles.
“I did,” Kirk conceded, “but I can tell you that was… It was never… I’ve never had a conversation with Jeff that talked about policy decision and campaign contributions. There was never a quid pro quo. There was never an ask on anything.”
At that point, six lines of the transcript of the interrogation are cut out. When the recording resumes, Randles can be heard saying, “I think you’re well aware of some other things that happened where these other officials are concerned, too. I think you understand…”
“We’re not saying you’re involved,” Weiss threw in.
“…that certain things took place,” Randles continued. That there were certain things leading up to the settlement and I think that you know pretty much, if not most, of what happened where this agreement took place. I think the fact that the attorneys were telling everybody, ‘Hey, don’t settle this. You could prevail in this lawsuit.’ Attorneys quit. You know, they said ‘We’re out of here. You guys aren’t playing fair.”
“Well, there are two things that…” Kirk begins.
“’You guys want to settle this thing for hundreds of millions of dollars and we’re telling you, you don’t have to,’” Randles interrupted Kirk, continuing his paraphrasing of the attorneys. “‘We’re out of here. We’re done.’”
Kirk responded, “There are two things that disavowed Jones Day [one of the law firms representing the county] with my boss. One was that they, you can’t ignore the fact, that they continued to get paid. So, they have a vested interest in continuing to keep up the fight. And two, you look at their track record and we just didn’t, it was a track record of loss after loss after loss.”
“It’s a good law firm,” said Randles.
“Well, they’ve a good rep,” said Kirk. “Jones Day has a better reputation than they are in practice, I believe.”
“Munger Tolles [the firm which represented the county before Jones Day] is a good law firm,” said Randles.
“I don’t know much about them,” said Kirk. “But I know our biggest issue with Jones Day was that I believe that the memo that was somehow mysteriously leaked actually came from Jones Day, and you just look at the track record and that was the problem. It was a tough decision. In fact, many people told my boss, told me, ‘This [voting for the settlement] ends your career. You know, that’s what this does.’ Either you roll the die and the dollar amount goes up or you do make a settlement.”
In his responses to the investigators questions, Kirk sounded as if he assumed a settlement on the Colonies Partners’ terms was always a given.
Weiss asked him, “What was the feeling amongst your boss and any other supervisor you’re aware of that the two supervisors would be sitting in a room, kick all the attorneys out and deal with the person on the other side? I have never heard of something like that happening, except one time in my life, this time, where they would sit there and kick the attorneys out and all of a sudden agree to a $102 million settlement.”
Kirk corrected Weiss, telling him, “Well, it’s my recollection that when the attorney’s were kicked out, that the settlement they came back with was a $77 million settlement.”
Randles asked Kirk, “Patrick O’Reilly’s working for Burum?”
“I didn’t know Patrick at the time,” Kirk said. “And I didn’t know he was working for Burum at the time.”
“He was working for Burum,” Randles said. “Jim Erwin’s working for Burum.”
“Yeah, both of those things I didn’t know that…” Kirk said.
“It just doesn’t stack up, man,” said Randles.
“Well, neither one of those two individuals talked to me or my boss about the settlement, to my knowledge. I mean, it’s possible that maybe they cornered my boss somewhere without my knowledge, but we never had that conversation,” said Kirk
“Did Biane and Postmus corner your boss?” Weiss asked.
“Not to my knowledge,” said Kirk
“They were talking to you…” Randles said.
“They’re not talking,” Kirk said.
“Like I say, I think you’re the one that’s running the show,” said Randles.
“Well, I appreciate your faith in me but I’m not that good as evidenced by some of the things you guys have brought up,” said Kirk. “I’ve made plenty of mistakes and it’s not a one-man show over there. It’s really not. Even, let’s say, I am that good. Paul Biane’s never going to come deal with me directly. He’s going to deal with the supervisor, the elected official.”
“They’ll deal with you if they need one more vote,” Randles said.
“Bill Postmus and Paul Biane would never deal with me directly,” Kirk said. “That gives me too much credit.”
Kirk’s attorney, Peter Scalisi, referenced the ambush nature of the interrogation of his client, who had gone to the district attorney’s office at investigators’ request of him and Ovitt with regard to inquiries about the scandal involving Postmus and the assessor’s office, only to find himself a target of the inquiry.
Scalisi asked Randles if the California Fair Political Practices Commission had made any pass-through referrals to the district attorney’s office of violations the FPPC had tracked regarding the political action committees Kirk was involved with, including the Alliance for Ethical Government or the West Valley Young Republicans PAC. Randles said no such referrals were made.
Scalisi question Randles on his knowledge of Kirk’s successful efforts to make campaign financing more transparent in San Bernardino County by requiring the online posting of county officials’ campaign finance reports, as well as the posting of Form 700s, which show county officials’ sources of income as well as their assets, investments and any gifts they receive. Randles said he was not aware of Kirk’s effort in that regard.
Scalisi also asked Randles if he had taken note of the testimony by Lynda Cassady, the former chief of the state Fair Political Practices Commission’s External Affairs and Education Division, in February when she said that the controller of a PAC can act as a consultant and direct its treasurer to pay the controller a fee for the service, which is similar to what Kirk did. Randles said he had not heard or reviewed Cassady’s testimony.
Following Randles’ departure from the witness stand, senior district attorney investigator Sean Fares testified about research he had conducted on the phone contacts among the defendants and the various principals involved in the case either as witnesses, informants or participants. Fares said those phone records were obtained pursuant to search warrants served upon telephone service and communications companies.
Burum’s cell phone records between September 1, 2005 through January 15, 2009 show he made 2,170 calls to Patrick O’Reilly, his public relations consultant; 217 to Postmus, 202 to Kirk; 180 to Biane, and 374 to Erwin. Fares’ findings did bear out a basic contention of the defense, which is that Burum had negligible contact with Aleman. Records show only three phone calls between them in that 40-month period.
Erwin in the September 1, 2005 through January 15, 2009 span made 902 phone calls to Aleman, 521 calls to O’Reilly, 1,375 to Postmus, 40 to Kirk, 44 to Biane and 463 to Burum. Falling within that timeframe is the period from January to October 2007 when Erwin was serving in the capacity of assistant assessor while Aleman was also assistant assessor and Postmus was the elected assessor, a circumstance which might account for the high call volume among the three.
In July 2006, Burum’s communication with Erwin, Postmus and Biane practically ceased. That month he had no phone contact with any of the three. Over the next several months the intensity and frequency of Burum’s contacts with Erwin and Postmus and other county officials increased. According to phone records Fares referenced, Burum from August 20 to August 31, 2006 made or received seven phone calls to or from Kirk and 11 to or from Erwin. In the month of September, Burum had five phone contacts with Kirk and 11 with Erwin.
From October 16 to October 20, the dates surrounding a mediation session between the board of supervisors and the Colonies Partners involving former California Supreme Court Justice Edward Panelli on October 19, Erwin had 16 phone contacts with Postmus and 19 with Burum. From November 1 until November 27, 2006, the day before the settlement was ratified, Burum made two phone calls to Biane, eight to Kirk and 52 to Erwin. Between November 28, 2006, when the settlement was passed, and November 30, 2006 Burum had a total of 23 phone contacts with Erwin, eight with Kirk and four with Biane.
Burum’s attorney Jonathan Phillips noted that more than a third of his client’s phone calls were logged as lasting one minute or less, an indication that many were missed calls, ones that went to voice mail or were unanswered. Burum’s lead attorney, Stephen Larson, said at least some of the calls attributed to Burum might have been made to or from other members of his company.
Fares said he was unable to determine what was actually discussed during those calls.
On Wednesday, after five months and 24 days, the prosecution rested its case against Burum, Biane and Kirk, and the jury hearing the case against them was excused until July 12.
The following day, the jury hearing the case against Erwin was back in the courtroom to hear a final prosecution witness against Erwin, political consultant Dave Ellis. Ellis was once Erwin’s friend and political associate.
Supervising deputy district attorney Lewis Cope questioned Ellis about political action committees he had control over having made payments to defray some of the legal expenses Erwin had in answering a civil suit brought against him in 2007 by the San Bernardino County Public Attorneys Association for alleged breach of contract involving negotiations the union was involved in with the county at the time. Erwin, who had been president of the sheriff’s deputies union, had been hired to help the attorneys association, which represented deputy district attorneys and deputy public defenders in their contract talks, in a contract dispute. The case was transferred to Orange County, where it was ultimately dismissed.
It is the prosecution’s contention that the financial assistance Erwin received from Ellis’ Neighborhood Preservation Coalition and Committee Against Corruption PACs was income that Erwin should have reported.
Cope presented copies of three checks from Ellis’ committees to Erwin’s attorney Alan Mohill written over 21 months totaling $11,000. Mohill represented Erwin in the lawsuit. A $2,000 check from Ellis’ Neighborhood Preservation Coalition PAC was cut to Mohill on April 12, 2007. Another check for $1,500 from Ellis’ Committee Against Corruption PAC to Mohill was written on April 16, 2007. A third check, this one from the Neighborhood Preservation Coalition PAC for $7,500, went out to Mohill on December 3, 2008.
Cope also presented an April 2007 email Erwin sent to Ellis and the treasurer of his PACs, requesting they bill his Committee for Effective Government PAC $3,000 to cover some of his attorney’s fees already paid for through Ellis’ PACs.
The defense Erwin and his attorney, Raj Maline, have formulated to these charges is that the litigation against Erwin was political in nature and that the legal fees therefore could be covered by a disbursement from a political action committee.
The relationship between Ellis and Erwin soured in the aftermath of the criminal charges brought against Erwin by the district attorney’s office beginning in 2009, largely because Ellis has remained close to district attorney Mike Ramos, with whom Erwin was himself once closely associated.
Despite his continuing alliance with Ramos, to whom he was a campaign consultant as recently as 2014, Ellis during his testimony on Thursday appeared to assist Erwin.
“In order for your PAC to justify paying these legal fees, it had to be a politically based lawsuit, right?” Maline asked.
“I don’t know about politically based, but politics had to be involved,” Ellis said.
“Your PAC would not have been able to make a contribution if you were informed the lawsuit was personal,” Maline said. “So you had to determine that before you authorized the money through the PAC for the attorney’s fees.”
Ellis responded that “SEBA [the sheriff’s deputies union] was a powerful political organization and the union was trying to leverage the position of a high ranking SEBA official.”
Before Ellis left the stand, Maline twice tried to utilize him to his client’s benefit. In one case he sought to have Ellis acknowledge that he had acted as a go-between for Erwin with Ramos in the days and weeks after the district attorney’s office had served a search warrant at Erwin’s house on January 15, 2009 when it seized the Rolex watch Burum had given Erwin. Maline sought to have Ellis acknowledge that Ramos had instructed Erwin to simply report having received the gift on an amended 700 form. It is Maline’s contention that Ramos instructing his client do just that and then using that amended form as evidence against him and upon which to file criminal charges was an improper effort to entrap Erwin, as well as malicious overkill since such income or gift reporting violations are normally handled as civil matters by the Fair Political Practices Commission. Ellis, however, eluded the question, saying “‘Public disclosure is good’ [the phrase attributed to Ramos during the conversation] is a general comment. Mike wasn’t specific to the Form 700.” Ellis said he counseled Erwin “to get a lawyer.” Maline also sought to use Ellis to establish that Ramos himself had gotten caught up in a disclosure violation that was handled by the Fair Political Practices Commission and was not charged as a felony by asking Ellis about that incident. When Maline did so, Judge Michael Smith sustained the prosecution’s objection to the question.
The day was marred by a report from a court reporter who overheard what she thought was one of the jurors discussing or perhaps lamenting that the jurors would now need to sit through the defense’s presentations on the case. Judge Smith looked into the matter, querying the jurors about what they had said or overheard, before concluding the incident merited no further inquiry or remedy.
After Ellis’ testimony concluded, there were stipulations read to the jurors and the prosecution rested.
Testimony will not resume until July 12. Next week, however, on July 5 and July 6, Judge Smith is scheduled to hear so-called 1118.1 motions, which are requests from the defense that the charges be dismissed. Such motions are anticipated from all four defendants.
Courtroom observers prognosticated that Smith will not grant the motions on behalf of Burum or Erwin. Some feel that there is a likelihood the judge will be compelled to dismiss the case against Biane, given that the witness the prosecution had most heavily counted upon to seal the case against him, Biane’s former chief of staff Matt Brown, went renegade on Mandel, balking at repeating elements of his testimony six years ago before the grand jury that ultimately indicted his former boss and the other three defendants. Moreover, the central narrative of the prosecution’s case is that Biane was victimized by Erwin and Burum, who were, according to the prosecution, extorting him into supporting the settlement. The case that prosecutors have put on against Kirk has been elliptical in fashion, seeming throughout the trial to be a garnish for the main course of the more substantial and ponderous evidence against Burum and Erwin. On Wednesday July 5 and before the day ends on Thursday July 6, it is anticipated Smith will determine whether the strength of the prosecution’s case in light of the testimony of witnesses and the evidence presented has been substantial enough to require that the defense teams for each, any or all of the four register an answer with their presentations of witnesses and evidence, or whether the prosecution has not even met its minimal threshold to ask for, let alone sustain, a conviction.