Judge Narrows Charges Prior To Defense Case In Colonies Matter

During the extended break between the closing of the prosecution’s case last week and the presentation of evidence and testimony the defense will initiate on July 18, the judge in the Colonies Lawsuit Settlement Public Corruption Trial began winnowing the case this week.
Under Penal Code Section 1118.1, “In a case tried before a jury, the court on motion of the defendant or on its own motion, at the close of the evidence on either side and before the case is submitted to the jury for decision, shall order the entry of a judgment of acquittal of one or more of the offenses charged in the accusatory pleading if the evidence then before the court is insufficient to sustain a conviction of such offense or offenses on appeal.”
After the July 3 & 4 holiday concluded this week, attorneys for all four of the defendants were in the courtroom of Superior Court Judge Michael Smith prepared to deliver a comprehensive set of Penal Code Section 1118.1 motions asking for the totality of the charges against the four to be thrown out, their collective theory being that the prosecution has not proven its case in whole nor in part. Their confident hope was that Judge Smith would hear all of the motions by today, Friday, at which point the case would draw to an end. But no hearing was held today, and by the close of Thursday’s court activity, the 1118.1 motions pertaining to only two of the defendants had been heard, and those not in their entirety, so that all four defendants remain on the court docket. The hearings on the remaining 1118.1 motions will resume Monday.
From the outset, the defense attorneys for defendants Jeff Burum, Paul Biane, Mark Kirk and Jim Erwin have uniformly maintained the charges laid out in the May 2011, 29-count indictment against their clients are without factual and legal justification. Indeed, in a series of pretrial demurrers and other motions that began as early as July 2011, those attorneys have sought to have all of those charges dismissed. They achieved some, but not total success in that regard, beginning with a ruling on the original round of motions by Superior Court Judge Brian McCarville in August 2011 which tossed out eight of the charges. Prosecutors appealed McCarville’s ruling to the 4th District Court of Appeal, triggering a cross-appeal from the defense, which called upon the appellate court to reconsider those elements of the case that McCarville left intact. Ultimately the 4th District reestablished some of the charges McCarville had thrown out but also dismissed several of the charges he had left in, so that on balance, the case against the defendants was in fact reduced further by the 4th District than it had been by McCarville. This triggered a further appeal to the California Supreme Court by the prosecution team, consisting of prosecutors with both the California Attorney General’s Office and the San Bernardino County District Attorney’s Office. The California Supreme Court in December 2013 reestablished the essential elements of the case against the defendants. In the Summer of 2014, the judge who would eventually hear the case, Michael Smith, dismissed the conspiracy charge against each of the defendants contained in the indictment on statute of limitations grounds, rejecting the prosecution’s theory that a four-year rather than a three-year deadline on bringing a conspiracy charge involving governmental officials should apply. The prosecution appealed that to the 4th District Court of Appeal, which rejected it. That decision was then appealed to the California Supreme Court. In January 2016, the California Supreme Court denied the petition by prosecutors to reverse the lower courts.
Starting on January 4 of this year, the prosecution gamely pressed on with the case, taking it to trial despite the conspiracy charge lying at the heart of the matter and upon which the primary narrative propounded by prosecutors including 43 overt acts is hinged being no longer in play. For just under six months and ending last week, the prosecution’s version of events was provided, using 39 witnesses and countless documents, maps, recordings and transcripts, emails, texts, bills, receipts, invoices and photographs as exhibits. What was presented was a largely circumstantial case anchored by the dual extended rounds of testimony by former chairman of the board of supervisors and subsequently county assessor Bill Postmus and his protégé, man Friday and eventual betrayer Adam Aleman.
Postmus and Aleman essentially reiterated the allegations around which the 29-count indictment revolved, which propounds that that Colonies Partners principal Jeff Burum’s frustration after four years of litigation against the county and its flood control district over drainage issues at the Colonies at San Antonio residential and Colonies Crossroads commercial developments touched off a series of actions to force the county into a settlement that crossed the line into criminality. The indictment alleges that Burum worked with former sheriff’s deputies’ union president Jim Erwin to first extort Bill Postmus and Paul Biane, who in their roles as the chairman and vice chairman of the board supervisors were the two highest ranking county officials at that time, to vote in favor of a settlement on terms that were highly favorable to the Colonies Partners. After Postmus and Biane in November 2006 acceded to that extortion in the form of blackmail, intimidation and threats to reveal untoward aspects of their personal lives to the public 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, political action committees set up by both Erwin and Ovitt’s chief of staff, Mark Kirk, were likewise recipients of $100,000 donations from the Colonies Partners. 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 original indictment alleged conspiracy, bribery and fraud against all four defendants, extortion against Burum and Erwin, misappropriation of public funds and conflict of interest violations against Biane and Kirk, and failure to report income, reporting violations, and perjury against Erwin.
Postmus, who in 2010 had been charged along with Erwin on a host of crimes growing out of the circumstances of the county’s settlement of the lawsuit with the Colonies Partners and in 2011 entered guilty pleas on all of those charges and agreed to turn state’s evidence, under direct examination by Supervising San Bernardino County Deputy District Attorney Lewis Cope in May recounted his efforts in support of the settlement in 2005 and 2006. He said 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 that after his return from China 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 were able to establish 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.
Prosecutors called Aleman to the witness stand immediately after Postmus concluded his testimony. Aleman, under direct examination by California Supervising Deputy Attorney General Melissa Mandel, reinforced all of the issues explored by his one-time mentor and boss pertinent to the charges against Burum and Erwin in particular and to a lesser extent those against Kirk and Biane. He depicted Postmus as being under severe pressure from Burum and Erwin to settle the litigation and he delineated the alleged blackmail used against Postmus and Biane, which he said consisted of “hit piece” political mailers targeting the two politicians that were on hand to be sent but were ultimately withheld during the 2006 political season while Postmus was running for assessor and Biane was sponsoring a measure to increase the annual salary of supervisors from $99,000 to $151,000. Moreover, Aleman was a font of knowledge with regard to both the $400,000 in donations the Colonies Partners made in the course of the seven months following the settlement and the political action committees connected with Postmus, Biane, Erwin and Kirk that those donations were made to, illustrating for the two juries hearing the case the prosecution’s contention that the political contributions were laundered bribes. Before Aleman left the witness stand, he was subjected to vicious cross examination by the attorneys for the defendants, who highlighted that he had himself turned state’s evidence only after he was criminally charged for a host of acts he had perpetrated after he was elevated to the position of assistant assessor by Postmus when Postmus assumed that office in 2007. Aleman was subsequently convicted of those crimes, including falsification of public documents and knowingly false utterances before a grand jury. The defense attorneys depicted Aleman’s testimony implicating their clients as a pack of lies he fabricated in an effort to garner leniency from prosecutors who were looking to fry bigger fish than him.
The rubber hit the road this week with Judge Michael Smith hearing the 1118.1 motions against both Kirk and Erwin beginning on Wednesday. Initially, it had been projected that Smith would run through the 1118.1 motions lodged by all of the defendants by Friday. However, Judge Smith and the attorneys spent a considerable amount of time going over a portion of the jury instructions on Wednesday, delaying into the afternoon the discussion of the 1118.1 motion made on Kirk’s behalf by his attorney, Peter Scalisi. It was decided on Thursday that court would not be in session today, Friday.
Throughout the trial, Kirk has faced four charges, delineated as counts 3, 9, 10 and 12 in the indictment, Penal Code Section 68: receiving, agreeing to receive, and/or asking for a bribe to influence a vote; Government Code Section 9054: improper influencing of a public official; Government Code Section 1090: a government official engaging in a conflict of interest; and Penal Code Section 424: aiding and abetting [in this case Postmus and Biane] in the misappropriation of public funds.
On Wednesday afternoon there was considerable discussion with regard to Scalisi’s 1118.1 motion on behalf of Kirk.
In making his pitch to have Smith throw the charges against his client out, Scalisi said the evidence presented thus far indicated Ovitt was purposed to vote for the settlement in any case and Kirk had no impact on steering the supervisor in a direction he was already headed. Scalisi said the dismissal of all four charges was appropriate. “We’re asking the court, essentially, to enter a judgment of acquittal for lack of sufficient evidence,” Scalisi said.
Ovitt, who had been called by the prosecution as its witness, Scalisi said, served as Kirk’s “defense witness,” offering testimony that Scalisi said exonerated his client. In the effort to establish Kirk’s innocence, Scalisi said, “the most compelling evidence” was “the testimony of Gary Ovitt,” who “came across as an honest, forthright, good witness who was just here to tell the truth, no matter who questioned him.”
In February, Ovitt testified that the vote in favor of the settlement “was my decision and mine alone.”
Mandel in response said that Ovitt’s overarching or underlying attitude in favor of the settlement was irrelevant to Kirk’s guilt, since Kirk was officially bound to “make an objective decision on appropriate factors” and that Kirk was throughout the critical months of 2006 while the discussions pertaining to the lawsuit settlement were ongoing conniving to “influence” the eventual vote and “insert himself into discussions of the Colonies.” This was supported, Mandel maintained, by Kirk’s involvement in meeting with Burum’s public relations team, and his regular communications with Burum which intensified, she said, around the time of the settlement, as well as his communications with Postmus in the same time frame. Mandel also said that with regard to the decision on the lawsuit settlement, “Mr. Kirk told Mr. Reitz [i.e., then county counsel Ronald Reitz] early on ‘This is a political issue and should be handled as a political issue.’” Furthermore, she said, Kirk had sought to have Postmus inform Burum that he had played a part in ensuring that Ovitt voted for the settlement.
Beyond that, Mandel asserted, Kirk was militating to achieve the settlement in favor of the Colonies Partners. “All those acts were to get the settlement done,” she asserted. “It wasn’t just about influencing Mr. Ovitt.” And Mandel said, Kirk evinced “corrupt intent” by his willingness to receive the money from the Colonies Partners while engaging in discussions with Ovitt pertaining to effectuating a settlement that was ultimately in the Colonies Partners’ interest.
Scalisi said that obfuscated the issue and Ovitt had been “crystal clear” that he had come to the determination to approve the lawsuit settlement on his own, having been persuaded very early on that settling the lawsuit was appropriate during a briefing the county’s lawyers had provided him and supervisor Josie Gonzales on the Colonies case after their 2004 election. “Jeff Burum already knows he’s got Gary Ovitt’s vote,” Scalisi said, speaking in the present tense with regard to 2006, making it impossible, Scalisi insisted, that Kirk had “unduly influenced Ovitt’s vote.”
Judge Smith threw out the Penal Code Section 68 charge based on the reasoning that Kirk did not seek the bribe, as his boss, Gary Ovitt, was predisposed to vote for the settlement. If indeed, Smith reasoned, there was discussion between Burum and Kirk about Kirk being rewarded for delivering Ovitt’s vote, that is a moot consideration since Kirk did not have to act to make sure Ovitt’s vote was delivered.
Smith turned down Scalisi’s motion to dismiss the Government Code Section 9054 charge of improperly influencing a public official and the Government Code Section 1090 charge of engaging in a conflict of interest. Smith held in abeyance making a decision, until Tuesday of next week, on the Penal Code Section 424 aiding and abetting in the misappropriation of public funds charge pertaining to Kirk, saying that the issues attending that charge also pertain to charges against the other defendants.
Throughout all of the trial and as of Thursday morning, Erwin faced more counts than any of the other defendants, remaining under the onus of ten charges, which had started off as 12 in January before two were thrown out in May. All told, as of yesterday Erwin was charged with two counts of violating Penal Code Section 165: aiding and abetting an official [in these two cases Postmus and Biane] in receiving or agreeing to receive a bribe; two violations of Penal Code Section 86: aiding and abetting Postmus and Biane in receiving, agreeing to receive or asking for a bribe to influence a vote; a violation of Penal Code Section 424: aiding and abetting Postmus and Biane in the misappropriation of public funds; a violation of Penal Code Section 470: forgery; a violation of Revenue and Tax Code 19706: failure to file a tax return; and three violations of Penal Code Section 118: Perjury, pertaining to his filing of his 2007/2008 State Form 700 relating to his economic interests, failure to disclose the true value of gifts on his Form 700, and failure to disclose receiving $7,500.00 in gifts or income on his Form 700.
In the hearing for the 1118.1 motion brought on Erwin’s behalf by his attorney Raj Maline, there was some discussion about how Erwin had hidden his involvement with his political action committee, Committee for Effective Government, to which the Colonies Partners had made the $100,000 donation the prosecution has branded a bribe. While the committee was Erwin’s creation and he served as its treasurer, Mandel said it was significant that Erwin attempted to hide that he had that control by having Steve Hauer, who had unwittingly been established by Erwin as the committee’s executive director, authorize a $5,000 consulting fee Erwin received from the committee in 2008. The prosecution maintains, and Erwin has not effectively disputed, that he forged Hauer’s signature on that authorization. Maline said the note was of no legal significance, since Erwin submitted an invoice with his own signature and the authorization to the accountant, Betty Presley, who oversaw the committee’s accounts and signed the check with the knowledge that Erwin had control of the political action committee.
Mandel said Erwin’s use of an authorizing note with the forged signature was a clear effort to defraud. Smith, however, said it did not appear to him Erwin had any reason to disguise himself when he signed Hauer’s name authorizing the $5,000 payment to himself, since he effectively controlled the Committee for Effective Government. “I see no evidence that Mr. Erwin could not have gotten the money on his own,” Smith said during Thursday’s proceedings. “I find there is no evidence to support the intent requirement of the forgery charge.”
With that, Smith dismissed the count of forgery against Erwin.
Smith was less kind to Erwin with regard to two of the three perjury charges. Those pertained to Erwin’s failure to report income and gifts he received on his statement of economic interest forms required of all government officials in a decision-making capacity.
At one point, Smith seemed on the verge of throwing out the third perjury charge, which Maline said the prosecution had gratuitously brought after Erwin in 2009 filed an amended statement of economic interest to report receiving a watch worth $12,765 he had received from Burum in 2007. Maline effectively argued, citing the Form 700 amendment instructions, that an amendment need address only the specific item left off or overlooked in an original Form 700 filing. But Mandel asserted that the court was on the verge of blurring the distinction between the noun amendment and the adjective amended, and Smith agreed to defer his decision until next week.
Smith’s ruling on the remainder of the charges taken up in Maline’s 1118.1 motion will be completed on Monday, at which time the 1118.1 motions for Biane and Burum will also be heard.
This week’s proceedings, all of which took place outside the presence of both juries – one of which is hearing the case against Burum, Biane and Kirk and the other of which is to decide Erwin’s fate – were noteworthy for the presence of deputy district attorney Michael Abney, who until this week was a relatively obscure member of the prosecution team. Abney was present and engaged with Judge Smith in depth with regard to several aspects of the language of the jury instructions which are to be provided after the defense concludes its case and closing arguments are made but before the juries begin their deliberations. Abney’s input marked his most extensive participation in the trial so far.
In January, the opening statements for Kirk and Biane were deferred or postponed by Scalisi and Biane’s attorney, Mark McDonald. They now have the option of making those opening statements when the defense begins to put on its case. That was scheduled for July 12. An issue with regard to the presence of one of the jurors, however, has pushed the trial resumption date to July 17. –Mark Gutglueck

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