Miffed With Postmus’ Testimony, DA Now Seeking Long Sentence

The legal fate of Bill Postmus, whose meteoric rise in San Bernardino County politics in the early 2000s was matched in intensity by the plunge that followed his implosion and crash to earth in a series of scandals that rocked the county and the Republican Party to the core, will not be fully determined at least until January.
Postmus, 46, was in court early this morning before Judge Michael A. Smith for possible sentencing on charges against him which were lodged in 2009 and 2010 and to which he pleaded guilty in March 2011. His sentencing has been held in abeyance since then as part of the plea agreement he entered into in which he committed to cooperate with prosecutors in their prosecution of his alleged accomplices and co-conspirators. In the immediate aftermath of his guilty plea Postmus met the prosecutors’ expectations, testifying as the star witness before a grand jury in April 2011 which was looking into a $102 million settlement conferred upon the Colonies Partners in November 2006 and the exchange of money that took place between the Colonies Partners and county officials within the ensuing eight months. That $102 million payout ended legal wrangling between the Colonies Partners and the county which related to disputes the company had with the county flood control district over drainage issues at the Colonies at San Antonio residential and Colonies Crossroads commercial subdivisions in northeast Upland. Following Postmus’ testimony, which was augmented with the testimony of more than 30 others, that grand jury in May 2011 handed down an indictment of Colonies Partners co-managing principal Jeff Burum; Postmus’ former board of supervisors colleague Paul Biane; former San Bernardino County sheriff’s deputies union president Jim Erwin; and Mark Kirk, who had been the chief of staff to another of Postmus’ board colleagues, Gary Ovitt. According to the 29-count indictment, Burum had conspired with Erwin to threaten and blackmail Postmus and Biane into settling the lawsuit. The indictment alleged Erwin prepared but ultimately withheld “hit piece” mailers that targeted Postmus, who was then the board of supervisors chairman as well as the chairman of the San Bernardino County Republican Central Committee, and Biane, then the vice chairman of the board of supervisors as well as the vice chairman of the same central committee. Those mailers, according to prosecutors, took as their subject matter Postmus’ homosexuality and methamphetamine addiction and Biane’s financial travails which had him on the brink of bankruptcy. After Postmus, Biane and Ovitt on November 28, 2006 voted to enter into the $102 million settlement, the indictment alleged, between March 2007 and the end of June 2007, the Colonies Partners endowed political action committees controlled by Postmus, Biane, Erwin and Kirk with $100,000 each. Prosecutors maintained the donations to Postmus and Biane were bribes provided in return for their votes in support of the settlement and that the $100,000 donation to Kirk’s political action committee was likewise a bribe made in exchange for his having delivered Ovitt’s vote in favor of the settlement. Kirk as his chief of staff, had been Ovitt’s primary political advisor.
Postmus’ vote in favor of the settlement had come when he was a lame duck as a member of the board of supervisors. Three weeks previously, on November 7, 2006, he had been elected county assessor. In 2007, after he assumed the position of assessor, he upped the number of assistant county assessors from one to two and installed both Erwin and a close friend and political associate, 23-year-old Adam Aleman, into those positions. In the ensuing 18 months, Postmus slipped further into the morass of drug addiction. The county assessor’s office, into the management echelon of which Postmus had made a series of no fewer than 11 political appointments of friends and associates who had virtually no real estate, appraising or taxation policy/regulation expertise, became a hotbed of partisan political activity, promoting the Republican Party, Republican causes and certain Republican candidates. An investigation into this activity by the district attorney’s office began in 2007, and in 2008 events overtook Aleman, who was called before a grand jury to be questioned about the goings-on in the assessor’s office. Panicked, Aleman had an office employee alter some internal assessor’s office documents, destroyed the hard drive in a county-issued laptop and then lied in his testimony to the grand jury. Ultimately, all of these actions were detected by district attorney’s office investigators and Aleman was arrested and charged with a variety of crimes in July 2008. By November 2008, he had begun cooperating with prosecutors, including recording conversations with others, among them Postmus, helping at first to assemble a case against members of the assessor’s office engaged in political activity on county time using county facilities that was unrelated to the assessor’s official function. Subsequently, he provided information to district attorney’s office investigators with regard to events prior to and after the $102 million settlement of the litigation brought by the Colonies Partners against the county, which he said involved efforts to intimidate, threaten, and blackmail Postmus and Biane to extort from them support of the lawsuit settlement, followed by the provision of kickbacks after the settlement, disguised in the form of political donations.
Aleman pleaded guilty to four felony charges in July 2009 and agreed to testify against any others involved in illegal activity about which he had knowledge. Based in large measure on information supplied by Aleman, the district attorney’s office in 2009 charged Postmus with misuse of his authority as assessor in allowing the office to be used for unauthorized purposes and with misappropriation of public funds. In February 2010, again based to a considerable degree on information provided by Aleman, the district attorney’s office in conjunction with the California Attorney General’s Office charged both Postmus and Erwin with conspiracy, fraud, involvement in an extortion and bribery scheme, misappropriation of public funds, engaging in a conflict of interest as public officials, tax evasion and perjury related to the Colonies Partners lawsuit settlement and its aftermath.
Postmus, who had been driven to resigning as assessor in February 2009 in the wake of public revelations about his drug use, by early 2011 was running out of options and money. At that point, he entered into the aforementioned plea arrangement on the assessor’s office corruption case, the Colonies Partners lawsuit settlement case and a separate charge relating to drug possession, a total of 14 felonies and a single misdemeanor.
Since 2011, Postmus has been a free man despite his conviction, though the resolution of his criminal case yet hung over his head, and the adverse publicity had ruined any prospect that he might remain in politics. His guilty plea on the conflict of interest charge legally prohibits him from holding elective office.
In January, the criminal case against Burum, Biane, Erwin and Kirk went to trial after numerous motions, rulings, appeals and delays. A total of 39 witnesses were heard from during the course of the case. The lion’s share of those testified during January, February, March and April, setting the table for Postmus and Aleman, who were the star witnesses, to begin their testimony in May. During his first three days of testimony under direct examination from May 1 through May 3, Postmus replicated the key elements of the prosecution narrative. In the latter half of 2006, Erwin, working on behalf of Burum and the Colonies Partners, Postmus testified, had threatened to expose elements of both his and Biane’s personal lives in an effort to persuade them to support the settlement. And Burum had promised to support him in either or both future political and business endeavors once the settlement was out of the way, he said. Moreover, Postmus said, he believed the $102 million paid out to the Colonies Partners was ridiculously more than the development company was due. The threats and promises of reward, he testified, along with the desire to put the whole thing behind him prompted the settlement. And after the settlement was in place, Postmus testified, the Colonies Partners had come through with $100,000 for him in the form of two separate $50,000 donations to political action committees he had control over.
But thereafter, the defense was given an opportunity to cross examine Postmus and controvert the prosecution’s version of events he had supported. Particularly under the withering questioning of Burum’s attorney Jennifer Keller, Postmus began to go sideways, responding positively to the suggestions in Keller’s questioning which offered alternate and even diametrically conflicting descriptions of events he had described. On the witness stand, Postmus moved toward adopting Keller’s stated theory that much of what he was testifying to had been planted in his memory by unscrupulous district attorney’s office investigators who had taken advantage of him, his legal vulnerability and his drug-addled state by interrogating him over and over while inculcating in him the prosecution’s narrative of events with their questions. Contradicting his testimony under direct examination, Postmus said he did not consider the $100,000 in contributions to his political action committees from Colonies Partners in 2007 to have been bribes, and that there was no quid pro quo inherent in his settlement vote and the contributions. He claimed any confusion about what had occurred was because “my mind is kind of messed up” from his use of drugs.
After eight months, the trial drew to a close with Burum, Biane and Kirk being exonerated on all of the charges against them and Erwin’s jury deadlocking, followed by the district attorney’s office dismissing the case against Erwin. At the time of that dismissal, district attorney Mike Ramos stated publicly, “Bill Postmus’ unexpected testimony on cross-examination at the last trial conflicted with his grand jury testimony, his statement to the FBI, and multiple interviews with the district attorney’s office.”
Ramos’ statement presaged what occurred this morning, when instead of acquiescing to having Judge Smith adhere to the language of the plea agreement which called for dismissing eleven of the felony charges against Postmus and taking into consideration Postmus’ testimony to arrive at a determination as to what his sentence would be, Supervising San Bernardino County Deputy District Attorney Lewis Cope asked for Smith to refer Postmus’ case file to the Riverside County Probation Department for review and sentencing recommendations. The matter is going to the Riverside County Probation Department because Postmus, who was formerly one of the most powerful political figures in San Bernardino County, oversaw and approved budgetary allotments for the San Bernardino County Probation Department, and officials want to avoid any chance of the recommendation on sentencing being influenced by that.
Based on these developments, and Ramos’ statement at the conclusion of the trial, it appears that the district attorney’s office is seeking to have convictions on all of the charges against him reinstated. Under that plea agreement, Postmus was convicted of all 15 of the charges on the proviso that based upon his cooperation, all but three of the 14 felony convictions would be vacated, and the maximum sentence he would receive would be six years and eight months, with the possibility that the prosecution would recommend that he be given straight probation with no actual prison time. Sentencing remains within the discretion of the judge. The judge in Postmus’ case, Michael Smith, was the trial judge in the case tried against Burum, Biane, Erwin and Kirk. Thus, Judge Smith has sufficient perspective to make his own conclusion as to Postmus’ credibility on the witness stand and whether he indeed lived up to the terms of the plea arrangement he made with prosecutors in 2011.
The case file the Riverside County Probation Department will be provided on Postmus will consist either primarily or wholly of material generated or vetted by the San Bernardino County District Attorney’s Office, which is still smarting from the failure to win any convictions in the matter arising out of the Colonies Partners lawsuit settlement other than the pleas from Postmus.
Judge Smith gave indication that he anticipated having to mete out Postmus’ punishment based on the prosecution’s contention that Postmus had failed to live up to the terms of the plea agreement and in the face of contrary contentions by Postmus’ lawyers, Stephen Levine, who is representing Postmus with regard to the Colonies Partners lawsuit settlement, and Richard Farquhar, who represents him with regard to the charges stemming from his tenure as assessor.
“That [the sentencing recommendation] might be contested,” Smith said, with some degree of understatement. Judge Smith then said that the Riverside Probation Department should not count on him to assist it in giving his size-up of how truthful Postmus had been on the witness stand prior to sentencing.
Noting that both the court and the probation department will be “interested in knowing counsels’ perspective on whether the terms of the agreement were fulfilled,” Smith said, “Were probation to inquire of me, I would not give them any response. That is because I would have to decide [the question of whether Postmus had indeed cooperated fully and entirely with the prosecution].” Smith said accordingly, “It would not be appropriate for me to comment.”
The probation department is to complete its report and Cope, Levine and Farquhar are to make written submissions, known as sentencing memorandums, to the court. Smith ordered Postmus to return to his courtroom on January 19, at which point sentencing is to take place or further hearings or arguments on the matter will be either heard or scheduled.
After the hearing, Levine told the Sentinel, “Mr. Cope wants to throw him [Postmus] under the bus.” Levine said that he is uncertain as to how aggressive Cope, who saw firsthand the pressure Postmus was subjected to during Keller’s cross examination, will be in asserting Postmus failed to abide by the terms of his plea deal when he authors his sentencing memorandum. Levine, who characterized Cope as “a decent guy,” said nonetheless that Cope took his marching orders from district attorney Mike Ramos.
Ramos is facing reelection next year and it is anticipated that his political opponents will make an issue of the failure to get a conviction in the recently concluded Colonies Partners lawsuit settlement case, as the matter has been widely referred to as one of the most important prosecutions carried out by Ramos’ office in his more than 14 years as district attorney.
Jurors interviewed after the verdicts were returned indicated that Postmus’ hedging of his testimony was a factor in their acquittal votes, but they said that Aleman’s credibility was a major consideration as well. Aleman was subjected to an even more brutal onslaught during his cross examination by defense attorneys than was Postmus. Though he was shown to have gotten some particulars such as dates and locations of meetings that took place between himself and some of the defendants wrong, Aleman remained relatively faithful to the narrative staked out by prosecutors in the indictment, and on occasion grew contentious with the defense attorneys. This was in stark contrast with the manner in which Postmus appeared to come to an accommodation with the defense attorneys who were cross examining him. For that reason, it does not appear that the prosecution will move to revoke the terms of the plea agreement Aleman entered into in 2009.
Other witnesses were problematic for the prosecution during the trial. Supervisor Josie Gonzales confused 2005 with 2006 in recounting a near encounter she said she had with Burum in China prior to the settlement vote, which she testified was part of a pattern of her being unduly pressured to approve the lawsuit settlement. Matt Brown, who had been Biane’s chief of staff during the run-up to the settlement in 2005 and 2006, had been counted upon by the prosecution to offer damning testimony during the trial, recapitulating elements of his grand jury testimony. Brown, who had created the political action committee through which the $100,000 donation from the Colonies Partners to Biane alleged to be a bribe had been provided after the settlement and who in 2009 and 2010 used a hidden recording device in an unsuccessful effort to capture utterances from Biane implicating himself in the alleged bribery scheme, proved highly testy during his questioning on the stand, claiming he had no recollection of numerous events nor of several of his previous statements before the grand jury.
Prosecutors have no leverage on either Brown or Gonzales, however, as they were never charged with crimes. In the case of all of the witnesses, including Postmus, the passage of a decade between the events in question and their testimony is seen as a plausible reason for lapses in memory or confusion with regard to dates, times, places and facts. Postmus repeatedly claimed that his memory of events had been impaired by his drug use. Nevertheless, prosecutors believe Postmus in large measure malingered memory loss and that he has demonstrated remarkable clarity and mental acuity with regard to many other events and activities, both related and unrelated to the Colonies case. They believe internal inconsistencies in his testimony demonstrate he failed to meet the requirement laid out in his plea arrangement that he cooperate fully with the prosecution and testify accurately and to the best of his recollection at trial.
Cope said he was not at liberty to comment on anything relating to Postmus’ case due to his office’s policy of not discussing ongoing cases outside the courtroom.
-Mark Gutglueck

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