By Mark Gutglueck
More than two-and-a-half years after prosecutors failed to obtain convictions against three former San Bernardino County public officials and the wealthy developer accused of bribing them, pretrial skirmishing in the federal civil case the four once-accused brought against the county for what they say was malicious prosecution continues apace. That political corruption case, in which three public officials had been previously convicted, took nearly a decade to resolve. Late last month, the plaintiffs in the civil action achieved a minor victory in the form of one federal judge finding and another federal judge confirming that the central defendant in the matter engaged in the destruction of evidence.
That finding and its accompanying ruling by the trial judge is significant from the standpoint that the offending party was Mike Ramos, the district attorney whose office had prosecuted the four individuals who now say they were wrongfully caught up in the criminal matter, which dealt with events that took place in 2004, 2005, 2006, 2007 and 2008 and went to trial in 2017.
Of note is that much or all of the erased or destroyed information in question consisted of emails and text messages relating to Ramos’s personal, political and professional communications during his 2018 reelection campaign, which came after the trial of the four individuals – Jeff Burum, Paul Biane, Mark Kirk and Jim Erwin – took place the previous year.
A key player in the matter is Bill Postmus, one of the most dynamic political entities in San Bernardino County at the turn of the Third Millennium and arguably the most powerful personage within San Benardino County government through most of the current century’s first decade. Postmus’s reign came at the end of a several-decades-long period now known as San Bernardino County’s “Golden Age of Corruption,” an era in which individuals such as Fifth District County Supervisor Robert Hammock, Second District Supervisor Cal McElwain, Fifth District Supervisor Jerry Eaves, sheriffs Frank Bland, Floyd Tidwell and Gary Penrod, county administrative officers Robert Covington, Harry Mays and James Hlawek, district attorneys Jerome Kavanaugh and James Cramer, County Treasurer Tom O’Donnell, County Investment Officer Sol Levin, Fontana Mayor Nat Simon, Fontana City Manager Jack Ratelle, Hesperia City Manager Robert Rizzo, Colton Mayor Karl Gaytan, Colton councilmembers James Grimsby, Don Sanders and Abe Beltran among others freely participated in an openly pay-for-play environment in which bribes and kickbacks and the use of governmental authority to perpetuate political power and enable financial empires were the common ethos, a circumstance that some believe persisted throughout Postmus’s tenure and beyond to the current time in the personages of former Upland Mayor John Pomierski, former Upland councilmen Michael Libutti, Ken Willis, Brendan Brandt and Tom Thomas, Upland City Manager Robb Quincey, First District Supervisor Brad Mitzelfelt, Second District Supervisor Janice Rutherford, Fourth District Supervisor Curt Hagman and Third District Supervisor Dawn Rowe.
In 2000, Postmus was elected to the board of supervisors at the age of 29, making him, after Minor Cobb Tuttle in 1862, Norman Taylor in 1855, Robert McCoy in 1861, John C. Turner in 1893 and Gus Skropos in 1985, the sixth youngest county supervisor in San Bernardino County history. Four years later, in 2004, he became the second youngest chairman of the county board of supervisors after John C. Turner in 1895. That year he also became the chairman of the San Bernardino County Republican Central Committee, a perch from which he had control over the purse strings of the local GOP’s campaign war chest and held tremendous sway in determining who was elected to an overwhelming number of political offices in the county. In 2006 he expended more than $2 million in what yet remains the most expensive political campaign in county history when he successfully challenged the incumbent county assessor, Don Williamson, thereby acceding to the most powerful taxing position in San Bernardino County.
He had been the single most powerful political entity in San Bernardino County during his heyday, a virtual kingmaker.
In 1997, three years before Postmus had been elected to the board of supervisors, then-45-year-old Dan Richards formed the Colonies Partners with Jeff Burum, who was eleven years his junior.
Prior to that, Richards had been one of the owners of Stephen Daniels Commercial Brokerage and a former member of the Foothill Fire District Board of Trustees, which ceased to exist after the district was absorbed by the City of Rancho Cucamonga in 1989 to become the Rancho Cucamonga Municipal Fire Department. With the backing of 21 other investors, Richards and Burum raised $16 million to purchase from the San Antonio Liquidation Trust 489 acres located in the northeastern quadrant of what is now Upland, property long owned by the San Antonio Water Company and utilized for purposes of groundwater recharge and flood mitigation.
It was Richards’ and Burum’s intention to convert that land into a residential subdivision with some order of a commercial component. But the property was problematic. Lying just south of the foothills at the eastern extension of the San Gabriel Mountains, it was subject to flooding even during moderate rain, as the water would cascade down the south face of 8,696 foot-elevation Ontario Peak, which towers above Upland and San Antonio Heights to the north, and inundate the property. During a major deluge the entirety of the property – what is referred to as an alluvial creek – would become a raging river. A few quarries had been sunk into the property, from which granite, gravel and limestone had been extracted during the early decades of the 20th Century. Those quarries were utilized as catch basins and recharge basins, into which the flood waters would pour and then gradually settle into the water table. In 1933, 1934, 1939 and 1962, the San Bernardino County Flood Control District had recorded flood easements on the property.
Prior to Richards’ and Burums’ effort to develop the property, four highly reputable residential development companies had explored the same idea. Orange County-based Pennhill Land Company and Orange County-based Kohl Company seriously examined all of the requirements to get an actual entitlement to build what was then dubbed the San Antonio Lakes project. That included redressing the overwhelming flood issues on the property, which would entail building a contrivance to carry the water away and meet the statutory requirement of ensuring that in the face of the worst flooding that could be expected to occur statistically in a 100-year period the houses built there would remain one foot above the level of the water. That was too daunting, the Pennhill Land Company and the Kohl Company concluded, and their incipient plans for the project were abandoned. The William F. Lyon Company, then took a run at building a planned community on the property, slightly reworking the name into “The Lakes at San Antonio.” Ultimately, the Lyon Company came to the same conclusion as the Kohl Company before it. Then Lewis Homes took up the project concept. Lewis, too, would conclude that the project simply would not pencil out if it were to be developed to the traditional standards, and it forsook proceeding.
Richards, however, as a former elected official, understood precisely that obtaining project approval involved a relatively simple formula of securing majority support on the governmental decision-making panel that had jurisdiction and land use authority over the property upon which the project was to be built, which in this case was the Upland City Council. Through a shrewd investment of less than $25,000 in political contributions to the mayor and city council, Richards and Burum gained influence over that body. It so happened that Upland, at that time a city of 68,570 population, had recently downsized its municipal operations, dispensing with its assistant city manager, its city engineer, its engineering department and a significant portion of its community development/planning divisions. With Richards having arranged for the project’s acceptance on the political level, he and Burum overcame the practical issues relating to getting city staff acquiescence in the undertaking by agreeing to pay for the city to hire contract engineering and planning professionals to monitor and guide the municipal approval process for the proposal, including meeting development standards and passing inspections. The money in their paychecks originating with the Colonies Partners, those contract planning and engineering professionals enlisted to work on the project by the city acted accordingly, ensuring that the project could proceed.
As the old hand who knew the political lay of the land, Richards worked almost invisibly from the backroom, wiring the deals politically, while the hungrier Burum, who was more steeped in the ins and outs of the building industry, along with his brother Phil, took on a more public role in the promotion of the project.
A major issue was the need for infrastructure to accommodate the project, in particular flood control. Accounts vary as to what the Colonies Partners proposed to the county, the county flood control division and Jon Mikels, who was then the supervisor for the Second District, which included all of Upland at that time, as well as adjoining Rancho Cucamonga and San Antonio Heights. According to county officials, the Colonies Partners wanted the county, through its flood control division, along with the Army Corps of Engineers, to pay for the lion’s share of the flood control channelization and retention basins as part of a deal that would involve those water-holding-and-conveying facilities being built on property within the original 489 acres or on another 22.3 acres the Colonies Partners had tied up south of the project area. Mikels, however, was adamant that neither the county nor its flood control division should defray any part of the cost of providing the infrastructure that would be required for the project to proceed. The supervisor became further entrenched in that view when he learned that the Colonies Partners had sold for $17 million 40 of the 489 acres at the northern fifth of the property to the California Department of Transportation as right-of-way for the 210 Freeway. By making the sale to CalTrans, Richards had made for the consortium almost $1 million more than the Colonies Partners had paid for the entirety of the acreage. That $17 million included payment for the property and what was referred to as “severance damages,” meaning any encumbrance on the property that remained in the possession of the Colonies Partners as a consequence of the construction of the freeway, including paying for needed flood control facilities. Mikels was highly cognizant that the placement of the freeway along the north-lying portion of the Colonies Partners’ property had transitioned what was empty and unimproved land into prime commercial acreage, greatly enhancing its value. Given that the property had been designated on zoning maps as open space and was shown as undevelopable without the stormdrains, basins and channels required to prevent that property and other properties next to it from being inundated during heavy rains, Mikels insisted that the project be held in abeyance until such time as the Army Corps of Engineers got around to constructing a regional network that would alleviate flooding there or the Colonies Partners itself took up the construction of the water diversion system needed. At one point, according to the Colonies Partners, Mikels said he was unwilling to put up $1 million toward the project the Colonies Partners was proposing as the county’s share of the infrastructure burden. Similarly, according to the Colonies Partners, the county was unwilling to throw $3 million toward the construction of the 67-acre holding basin to be located on the Colonies Partners property. Richards has more recently maintained that on one occasion when he and Burum had met with Mikels, they offered him a three-ring binder which contained drawings, specifications and other details relating to a $25 million basin they were proposing to have the county flood control division construct on their property, toward which they were willing to provide the land at no cost and cover $12.5 million of the construction price. Mikels, Richards said, refused to even look at the binder.
Ultimately, in 2002, the Colonies Partners sued the county and its flood control division over the outstanding drainage and flood control issues relating to the project. That same year, Richards engineered a political coup to remove Mikels, whom he and Burum considered to be the primary obstruction to the project, from office. They did so by delivering, either directly or indirectly, $70,000 in political donations to Paul Biane, then a Rancho Cucamonga councilman, who challenged Mikels in the 2002 election. Also running for reelection that year was District Attorney Dennis Stout.
There had been a longstanding previous political alliance between Mikels and Stout. When Mikels had been elected in 1977 as a charter member of the Rancho Cucamonga City Council, he had appointed Stout to serve as a member of the Rancho Cucamonga Planning Commission. Thereafter, when at that time the mayor was appointed from among the council ranks by a vote of its members, Mikels had acceded to that post. In 1986, when Mikels stepped up to run, ultimately successfully, for Second District county supervisor, so too did Stout vie for office successfully that year, in what was Rancho Cucamonga’s first direct mayoral contest. Mikels and Stout had endorsed one another in their respective contests. Both were re-elected in 1990. In 1994, while Mikels was again cruising to an easy victory as supervisor, Stout successfully sought election as San Bernardino County District Attorney.
While to outward appearances the alliance between Mikels and Stout seemed intact after both were occupying two of the most influential positions in the county, something nevertheless had gone amiss. Harvard Business School Graduate Joe DiIorio, who had relocated from Orange County in the 1970s to make heavy property investments in and around the area that became Rancho Cucamonga and who had been one of the sponsors of the city’s 1977 incorporation drive, experienced success with development projects he pursued. By 1990, however, the Stout-led council rejected numerous efforts by DiIorio to proceed with a large-scale project within Rancho Cucamonga’s sphere of influence. When the entity DiIorio controlled, the Caryn Company, as a result of the project delay began to falter, DiIorio became embroiled in litigation with the city over issues related to his entitlement to proceed with the project. This created a technical default in more than $20 million in outstanding loans secured by the property he was developing. As the project stalled and a lifetime of his profits were consumed by lawyers’ fees, a despondent DiIorio, who had been one of Mikels’ major political backers, took his own life. This had embittered Mikels toward Stout.
Unaware of the falling out between Mikels and Stout and assuming they yet remained firm allies, Richards and Burum calculated that it would be in the Colonies Partners’ best interest to remove Stout from office at the same time that Mikels was supplanted from the board of supervisors. They likewise threw their support behind Mike Ramos, a prosecutor in the district attorney’s office who challenged Stout. Like Biane over Mikels, Ramos emerged victorious against Stout in the 2002 election.
The Colonies Partners’ litigation against the county and the flood control district dragged on. Superior Court Judge Peter Norell at a relatively early stage made a ruling in favor of the Colonies Partners which held that the county’s flood control easements on the Colonies Partners’ property recorded in 1933, 1934, 1939 and 1962 had been abandoned through underuse. But the Fourth District Court of Appeal had overturned Norell, ruling that the county had unfettered easements on 31 acres and a right to utilize 30 further acres of land on the property in question for flood control purposes with the landowner’s consent pursuant to terms to be worked out between the two parties.
In 2004, Jim Erwin, a sheriff’s deputy who had previously been the president of the Safety Employees Benefit Association, the union representing the county sheriff’s sworn personnel up to the rank of lieutenant, had left the sheriff’s department and had reinvented himself as a self-styled political and management consultant. By 2005, he had been retained by the Colonies Partners to assist it in its dispute with the county over the Colonies at San Antonio residential and the Colonies Crossroads commercial subdivisions.
Also in 2004, as Postmus was vying for reelection, the Colonies Partners emerged as the heaviest contributors to his electioneering fund.
When the lawsuit the Colonies Partners had filed against the county went to trial before Judge Christopher Warner in 2006, he ruled against the county, this time asserting the easements had been extinguished because the county had surcharged, i.e., overused, them and that certain county officials had defrauded the Colonies Partners in the arrangements for the development of the property and the construction of flood control facilities there.
Despite the verdict favorable to the Colonies Partners in the bench trial held in Warner’s court, the county, based upon reports of improprieties relating to contact between and collusion involving the Colonies Partners and both Judge Warner and Judge Norell, had filed complaints with the California Commission on Judicial Performance relating to Warner and Norell, and was gravitating toward an appeal with regard to Warner’s verdict, waiting only upon Warner’s yet-to-be-delivered final ruling and monetary judgment in the case.
By then, the Colonies Partners were growing impatient with the county’s continuing resistance to its flood control division’s participation in the provision of infrastructure to accommodate the Colonies at San Antonio and Colonies Crossroads projects. Of note was that the company’s hostility was vectored less at supervisors Josie Gonzales and Dennis Hansberger, both of whom appeared to be opposed to subsidizing the building of the flood control infrastructure for those subdivisions altogether and supportive of the county’s contesting of the lawsuit, but rather toward Postmus and Biane, in whose political careers the company had heavily invested and whose efforts to settle the ongoing litigation on terms favorable to the Colonies Partners were not particularly effective.
In 2006, Biane was obliged to stand for reelection, but no candidate to oppose him emerged. Unchallenged, Biane put his efforts into sponsorship of Measure P, which called for increasing the remuneration the members of the board of supervisors received from $99,000 in salary per year and $45,000 in benefits to $151,000 in salary per year and roughly $68,000 in benefits. Biane and other supporters of the proposal did not dwell on the pay and benefit increases but rather on Measure P’s other provision which from that point forward would limit supervisors to a maximum of three four-year terms. Also in 2006, Postmus was seeking election as county assessor, running against incumbent Donald Williamson.
After having been so active as a campaign contributor in the 2002 and 2004 elections, the Colonies Partners made virtually no contributions to San Bernardino County politicians in the 2006 election cycle. Indeed, in a show of his discontent with Biane, Burum emerged as the most dedicated opponent of Measure P. At that point Postmus was the chairman of the board of supervisors and the chairman of the San Bernardino County Republican Central Committee. Biane was the vice chairman of the San Bernardino County Board of Supervisors and the vice chairman of the San Bernardino County Republican Central Committee.
It was in the aftermath of Warner’s ruling, as the county’s lawyers were advising the board of supervisors to appeal it to the Fourth Appellate District which had previously established the easements as being intact, and three weeks to the day after the election in which Postmus was elected assessor and Measure P passed, that Postmus, Biane and then-Fourth District Supervisor Gary Ovitt voted to settle the case for a $102 million payout to the Colonies Partners. Then-Supervisor Dennis Hansberger and Supervisor Josie Gonzales opposed making the settlement.
Following the settlement, between March 2007 and the end of June 2007, Postmus, Erwin and Gary Ovitt’s chief of staff, Mark Kirk, all established political action committees. In that same time frame, Burum and his brother Phil, cut two separate $100,000 checks from the Colones Partners’ account to the newly-created political action committees set up by Erwin and Kirk; wrote two separate $50,000 checks to the political action committees established by Postmus; and provided another $100,000 check to a previously existing political action committee that had been set up by Biane’s chief of staff, Matt Brown, and over which both Biane and Brown had control.
Upon taking office as assessor, Postmus created two assistant assessor positions, whereas previously under his predecessor Don Williamson there had been a single assistant assessor post. He filled those positions with Erwin, who had no previous experience in assessing property for tax purposes, and Adam Aleman, a 22-year-old field representative from his supervisor’s office, who had no experience in real estate or assessing property for tax purposes. Erwin, who had differences with Postmus that manifested within six months, left the assistant assessor’s position in October 2007. In 2008, Erwin went to work as the chief of staff to Neil Derry, who had been elected Third District San Bernardino County supervisor that year.
By late 2008, Postmus, while serving as assessor, had slipped into the morass of scandal, with word reaching the public that more than ten of his employees in the assessor’s office were engage in partisan political activity, utilizing county equipment and assets in doing so while functioning from county offices, and that he was in the throes of drug addiction.
After his election in 2002, Ramos served four years without distinction or major event, and was not challenged in the 2006 election. At that point, he had emerged as the tentative replacement candidate in 2008 for then-Congressman Jerry Lewis, who was one of Ramos’s political associates, in the 41st Congressional District.
In 2007, it became widely known that the FBI and the US Attorney’s Office were carrying out an investigation into Congressman Lewis’s relationship with the Copeland Lowery Jacqeez Denton & White lobbying firm, headed by Lewis ally and former Congressman Bill Lowery. Lowery and his firm had provided Lewis’s campaign fund or his political action committee either directly or through the firm’s clients hundreds of thousands of dollars while Lewis, by means of what was then his chairmanship of the House Appropriations Committee and his prior chairmanship of the Defense Appropriations Subcommittee, steered approaching one billion dollars in contracts to clients of Lowery’s firm through earmarks and other legislative methods. In addition, the investigation dwelt on two members of Lewis’s staff, Letitia White and Jeff Schockey, going to work for Lowery’s lobbying firm, earning millions of dollars each, as well as Lewis earmarking $2.75 million for the “Barracks Row” area of Capital Hill in Washington, D.C., where Lewis and his wife, who was also his chief of staff, owned a three-bedroom home valued at $943,000.
In 2008, with the investigation still going full-bore against him, Lewis decided surrendering the leverage and advantage being a member of Congress and either the chairman or ranking member of the Appropriations Committee represented would be unwise, and he did not leave Congress and endorse Ramos as was earlier planned. As the investigation continued for another three years thereafter, Lewis ran in 2008 and again in 2010. He spent over $2.3 million out of his electioneering fund hiring defense attorneys to represent him in the face of the federal investigation. He did not leave office until 2013, at which time the investigation was concluded, and he did not seek reelection in 2012.
His congressional ambition thwarted in 2008 and again in 2010, Ramos was faced with having to seek reelection as district attorney in 2010, at which point two opponents declared against him. Having spent more than seven years in office with few accomplishments in that time, he latched onto issues relating to Postmus and the Colonies Partners lawsuit settlement as a means of generating publicity to assist in his reelection effort that year.
Joining with then-California Attorney General Edmund G. Brown Jr, Ramos filed criminal charges against Postmus and Erwin in February 2010, alleging the two $50,000 payments to Postmus’ political action committees were bribes in return for his vote to approve the $102 million settlement, and that the $100,000 paid to Erwin’s political action committee was provided to him as payment for his illegal action in inducing both Postmus and Biane to support the $102 million settlement. Working on behalf of the Colonies Partners, according to the prosecutors, Erwin put together political mailers depicting Postmus as a drug addict and homosexual and then withheld them in order to blackmail him into voting for the settlement, and Erwin also created another set of mailers exposing Biane as teetering on the brink of bankruptcy and incapable of managing his own financial affairs, such that he was miscast in the role of a member of the board of supervisors overseeing the county’s multi-billion annual budget.
The complaint alleged the November 2006 votes to approve the $102 million settlement were obtained as part of a broad conspiracy that involved five other uncharged and unnamed conspirators, though the identities of the five could be surmised from descriptions of their capacities and their actions, those being Biane, Richards, Burum, Kirk and Patrick O’Reilly, a public relations consultant who had worked for the Colonies Partners.
Both Postmus and Erwin pleaded not guilty to the charges.
Thirteen months later, however, in March 2011, Postmus, who was also facing charges stemming from his abuse of authority while serving in the capacity of assessor, pleaded guilty to fourteen felony political corruption charges which included bribery, misappropriation of public funds, criminal conspiracy, public office conflict of interest, and perjury, along with a single count of misdemeanor drug possession. He agreed to turn state’s evidence and testify against all of the others involved, and cooperate with the investigation of the matter and the prosecution. In the same time-frame, Adam Aleman, Postmus’s one-time field representative when he was supervisor who had been elevated to assistant assessor, had been charged criminally as well, pleading to four felonies and agreeing to cooperate in the matter. As someone who was a member of Postmus’s staff in 2006 when he was supervisor, Aleman was able to shed light on a number of issues with regard to the settlement. Another member of Postmus’s staff at the assessor’s office was Greg Eyler, who likewise pleaded guilty and agreed to cooperate in the investigation. Postmus was the star witness before a grand jury that was impaneled and heard testimony in April 2011. Aleman, as well, gave extensive testimony before that body, which returned, in May 2011, a 29-count indictment prepared by the California Attorney General’s Office and the San Bernardino County District Attorney’s Office, superseding the charges that had been filed against Erwin the prior year. In addition to Erwin, the indictment further named Biane, Burum and Kirk, describing the overt acts in which they were allegedly involved.
There was a difficulty with the indictment from the outset in that nearly four years had elapsed since the last of the acts alleged in it, and more than four years had passed since some of the alleged offenses. As a consequence, some of the charges used less than straightforward language, indeed tortuous wording, in an effort to get around the statute of limitations, which with regard to most of the offenses stood at three years.
For example, the co-conspirators were not charged with bribery but rather, variously, aiding and abetting Postmus and Biane in receiving and agreeing to receive a bribe, or in the case of Biane, receiving and agreeing to receive a bribe to influence a vote.
The prosecution also pursued a somewhat elliptical charging theory, alleging that the statute had not begun to run until investigators for the district attorney’s office learned of the extortion and bribery scheme from Adam Aleman during an interview/interrogation of him in November 2008. That was, in itself, a prevarication, as a group of Upland residents, calling itself Taxpayers For Fair Resolution, which had misgivings about the tactics being used by the Colonies Partners and its legal team during their legal wrangling with the county over the Colonies project, had approached the district attorney’s office and Ramos himself directly at the time of the $102 million settlement to allege it had been tainted by illicit inducements including bribes and kickbacks. Contained in the indictment were charges of conspiracy; aiding and abetting Postmus and Biane in agreeing to receive a bribe to influence a vote, alternately under Penal Code Section 165 and under Penal Code Section 68; agreeing to receive a bribe to influence a vote, alternately under Penal Code Section 165 and under Penal Code Section 68; a violation of Government Code Section 9054, obtaining a thing of value to improperly influence a public official; violating Penal Code Section 182, obtaining money by false pretenses; violating Government Code Section 1090, engaging in a conflict of interest; violating Penal Code Section 424, misappropriation of public funds; tax fraud; tax evasion; perjury; and forgery.
Furthermore, the indictment did not criminally charge either O’Reilly or Richards, who had been, like Burum, Biane and Kirk, described as uncharged co-conspirators in the criminal complaint filed against Postmus and Erwin in 2010. In particular, omitting Richards, the mastermind of the influence-purchasing element of the Colonies Partners’ pre-settlement activity, while indicting Burum, whose involvement in at least some respects did not rise to that of his older and more politically experienced and politically connected partner, was glaring. There was an undeniable political element to the case in that Richards was well-recognized as a major financial backer of multiple politicians, including Ramos. Moreover, he had been a member of both the San Bernardino County and California Republican Central Committees. Word spread that Ramos had excluded Richards from the indictment for those reasons as well as because San Bernardino County Chief Executive Officer Greg Devereaux, who exercised a degree of control with regard to the district attorney’s office’s budget and who was a friend of Richards and like him a graduate of West Virginia University, had requested that the district attorney do so.
Of note, as well, was that the indictment did not name Matt Brown, who had been Biane’s chief of staff, though it named Kirk, who had been the chief of staff to Gary Ovitt, the third supervisor in addition to Postmus and Biane whose vote had been crucial to the passage of the $102 million settlement. Just as Kirk had set up a political action committee into which a $100,000 check from the Colonies Partners had been deposited in the months following the settlement being ratified by the board of supervisors, Brown had created the political action committee, over which he and Biane had control, which had received another $100,000 check from the Colonies Partners alleged to be a bribe to Biane.
Over the next five-and-a-half years there was vigorous pretrial sparring between the prosecution and defense attorneys for all four of the defendants, with the heavy lifting being done by Burum’s lead attorney, former Federal Court Judge Stephen Larson. Motions to dismiss the case entirely or to dismiss specific charges were made, some of which were granted and some of which were rejected by Superior Court Judge Brian McCarville. McCarville’s rulings were appealed to California’s Fourth District Court of Appeal, which reinstated some of the charges that McCarville had thrown out and dismissed some of the charges that McCarville had let stand. There were further delays while those rulings were appealed to the California Supreme Court.
In early 2016, Larson sought to convince Judge Michael A. Smith to have the indictment thrown out on the basis of prosecutorial misconduct, based on his contention that the prosecution, consisting of the San Bernardino County District Attorney’s Office and the California Attorney General’s Office working in tandem, withheld exculpatory evidence from the indicting grand jury in April 2011. Upon Judge Smith rejecting that request, the matter progressed up the judicial appeal chain until in August, 2016 the California Supreme Court rejected the last stab by the defense to have the indictment dismissed before the case went to trial.
In December 2016, jury selection for the case was undertaken and competed, and the case went to trial before Judge Smith in January 2017. Two juries had been impaneled, one to hear the case against Burum, Biane and Kirk, and the other to determine Erwin’s fate. That bifurcation took place so that evidence inadmissible against Burum, Biane and Kirk but admissible against Erwin, which included his statements to investigators as a search warrant was being served at his home in 2009, could be considered by Erwin’s jury but could also be kept from the jury hearing the case against the other three.
A total of 39 witnesses were heard from. Brown, who had offered testimony that had been damning to Biane before the grand jury in 2011 and who at one point had utilized a hidden recording device to record dozens of conversations with Biane in 2009 and 2010, proved uncooperative when he was called upon to testify at the trail.
Both Postmus and Aleman provided key testimony that undergirded the charges against the four defendants, supporting the accusation that Burum and Erwin had teamed up to blackmail Postmus and Biane to extort them into voting for the settlement. Aleman maintained that the $100,000 that Postmus and Biane each received in donations to their political action committees were rewards/kickbacks for that support. Postmus in his testimony acknowledged that the two $50,000 checks he had received had come to him as a consequence of his vote to support the settlement, but stopped short of acknowledging the $100,000 being a bribe, per se.
The defense, primarily in the form of one of Burum’s attorneys, Jennifer Keller, succeeded in emphasizing Postmus’s admission of heavy methamphetamine use in the 2005 through 2009 time period, and Keller thereby inculcated doubt in the jury with regard to the accuracy of Postmus’s recollections. Defense attorneys for all four defendants made a full court press in seeking to attack the character and credibility of Aleman, which in some measure undercut the heart of the case, as Aleman’s testimony was a central and perhaps even the most powerful element of the prosecution’s case.
Ultimately, after testimony from prosecution witnesses that lasted until August and the decision by all of the defense attorneys not to put their respective clients on the stand nor call any defense witnesses, the defense conceded in its closing arguments that efforts to influence the county’s decision-makers with regard to the Colonies at San Antonio residential and Colonies Crossroads commercial subdivisions and settling the ongoing litigation had taken place, but it was strongly asserted that such activity was permissible and constitutionally protected. The defense insisted that the more lurid details of the case, including allegations of extortion and bribery, were outright fabrications that formed the basis of a falsified narrative the prosecution was attempting to sell to the jury.
With the case in the hands of both juries after nearly eight months in trial, In relatively short order, the jury hearing the case against Burum, Biane and Kirk returned not guilty verdicts on all the remaining charges against those three. The deliberations in Erwin’s case were a bit more protracted. After multiple days of deliberations, Erwin’s jury was unable to reach a verdict on any of the charges.
After contemplating retrying Erwin, the prosecution elected to dismiss the charges against him.
In the weeks and months after the acquittals and Erwin’s dismissal, each of the four former defendants filed claims against the county alleging reckless and malicious prosecution, as did the Colonies Partners itself as a separate entity.
Starting in March, 2018, a series of federal lawsuits were then filed against the county by the defendants and the Colonies Partners, which consisted of one by the Colonies Partners alleging $80 million in damages, another by Burum seeking $50 million in damages, one by Erwin seeking to recover $25 million, one by Kirk seeking $40 million and another by Biane seeking $10 million.
The suits allege malicious prosecution, false arrest/imprisonment, fabrication of evidence, fabricated testimony, withholding of evidence, a tainted indictment, negligence, intentional infliction of emotional distress, retaliation, political retribution, irresponsible investigation, conspiracy, breach of contract, intimidation, harassment and civil rights violations. The cases have been consolidated and are to be heard together before U.S. Federal Judge Jesus Bernal in Riverside.
The Colonies Partners and Burum are represented by Larson; Erwin is represented by Raj Maline, who served as his defense attorney during the criminal trial; Kirk is represented by Peter Scalisi, who served as his defense attorney at trial. Biane, who was represented in the criminal matter by Mark McDonald, is represented in his federal civil suit by Dale Galipo.
Those named as defendants in the federal civil suits are the County of San Bernardino; former District Attorney Michael Ramos, district attorney’s office investigators Hollis Randles and Robert Schreiber, and Supervising Deputy District Attorney R. Lewis Cope, who prosecuted the case against the defendants in 2017 in conjunction with California Supervising Deputy District Attorney Melissa Mandel. Ramos is no longer district attorney, having lost his bid for reelection in 2018, largely on the strength of an intensive campaign against him by one of his former prosecutors, Jason Anderson, whose successful electioneering effort was heavily funded by Burum and his associates.
Among the factors that contributed to the decisions to file those civil suits was the provision – that is, the leaking – of communications between District Attorney Michael Ramos and certain individuals including members of the prosecution team relating to various aspects of the criminal case, the decision-making process pertaining to it and the general atmospherics enveloping the case.
Indeed, Ramos’s stance in relation to the Colonies Partners and the settlement case transmogrified significantly over time, as during his initial run for district attorney in 2002 he had drawn a significant amount of his campaign funding from the Colonies Partners and had therefore sought, successfully, to shield the company and its employees and agents from any investigative scrutiny or being subjected to his office’s prosecutorial authority. In the run-up to the 2010 election, however, his loyalty toward his former patrons was overcome by the political necessity of making a strong case for his reelection, and he thus began pressing his staff to launch a prosecution of Postmus and Erwin so it could be trumpeted as one of his accomplishments.
In the march toward trial in federal court, which was previously scheduled to be heard as early as this month but which has now been pushed back at least until September because of the suspension of the court’s calendar due to the COVID-19 crisis, it has become clear that Ramos, as the central defendant in the case, endeavored to hide evidence that might suggest the drive to prosecute the four defendants who went on trial in 2017 arose as much out of both personal vindictiveness and political expedience as it did from a straightforward professional analysis of the actions leading to and facts surrounding the 2006 settlement.
According to a motion for sanctions against the county and Ramos filed by Larson in November 2019, Ramos engaged in what Larson termed “spoliation of evidence based on defendants’ deletion of emails in Ramos’s campaign account, firstname.lastname@example.org, and deletion or non-production of text messages from Ramos’s personal cellular phone. Plaintiffs believe this ESI [electronically stored information] is relevant to their claims against defendants, because the ESI would tend to show Ramos viewed Burum as a political enemy and abused his position in the DA’s office to investigate [the] Colonies [Partners] and Burum and to eventually prosecute Burum and others.”
In support of his contention that the information that was deleted or not produced was likely relevant to the case the plaintiffs are seeking to make, Larson provided the court with some of the leaked emails and text messages which contained references to the plaintiffs in the civil case when they were defendants in the criminal case. Ramos’s language or characterizations, Larson said, “appear to be overzealous or politically charged.” Larson further noted that Ramos on occasion used two of his campaign’s email accounts “to discuss investigative and prosecutorial actions” rather than utilizing the means of communication available to him as district attorney, thereby blurring his professional prosecutorial function and his political activity.
In making the motion, Larson pointed out that the “spoliation occurred because Ramos shut down the campaign website and emails located at email@example.com in 2018, after litigation had commenced, and never produced texts from his personal cellular phones.”
The legal team representing the county, Ramos and the other named defendants, headed by Charles Slyngstad of the law firm of Burke, Williams & Sorensen, did not dispute that the campaign email account was “closed” shortly after June 2018, when Ramos lost his bid for reelection as district attorney and that the firstname.lastname@example.org account is no longer accessible. The county’s legal team also maintains that Ramos routinely deleted texts off of his cellular phone, doing so as a matter of course. The defendants asserted that the plaintiffs had not shown evidence of prejudice or the intent required to warrant the imposition of sanctions, and that as district attorney, Ramos had forwarded emails relevant to the district attorney’s office’s function to his employees, who at that time were involved in prosecuting the four plaintiffs. Furthermore, in a declaration in response to the motion that Larson had filed, Ramos disputed knowing or understanding he was under any obligation to preserve text messages. Slyngstad claimed that Ramos routinely deleted text messages when he received and read them, and that Larson had failed to explain what duty the county may have had with regard to Ramos’s campaign email account and personal cellular phone. It was untrue, Slyngstad maintained, that the county had engaged in the spoliation Larson described. Since the plaintiffs already possess emails and text messages that originated from Ramos or were passed through by him, according to Slyngstad, Larson’s motion was essentially pointless, and the emails and text messages the plaintiffs characterize as missing do not hamper the plaintiffs from proceeding with their case.
According to Larson, the county and Ramos were put on notice in October 2017 that the plaintiffs were purposed to sue the county over the ordeal Burum and the Colonies Partners had been put through.
The range of sanctions that Larson had sought to be applicable if his motion was granted included a terminating one, meaning entering a default judgment in favor of Burum and the Colonies Partners, thus concluding the two lawsuits involving Burum and the Colonies Partners, which seek a total of $130 million from the county, in the plaintiff’s favor.
U.S. District Court Judge Jesus G. Bernal will oversee the suits when they go to trial. He routed the motion filed by Larson to U.S. Magistrate Judge Shashi H. Kewalramani to evaluate it and make determinations, findings and a recommendation.
Judge Kewalramani determined that the county had an obligation to keep Ramos’s text messages sent and received from his personal cell phone and emails from his two campaign accounts intact. The judge rejected Ramos’s assertion that he did not know he was required to preserve his text messages or emails, which as a lawyer he had to recognize constituted critical evidence in the federal suit.
“At the outset, neither party contests that the electronically stored information was deleted by Ramos from Ramos’s personal cellular phone and as a result of closing down the email@example.com e-mail account,” Judge Kewalramani stated in his ruling. “Here, plaintiffs believe the ESI [electronically stored information] has been irretrievably lost because of their own investigation and defendants’ admissions that the emails in Ramos’s firstname.lastname@example.org were deleted in 2018 and one of the campaign accounts was closed, that any pre-2016 text messages were lost when Ramos obtained a new cellular phone, and that text messages between 2016-2018 were lost because Ramos regularly deleted them off of his phone. Specifically, plaintiffs point to their limited success retrieving the emails from other custodians, and note, for example, one recipient of emails from Ramos purportedly utilized a program that auto-deletes emails every six months. To the extent other custodians have the emails, plaintiffs argue, it is ‘telling’ that they have failed to produce those emails. Defendants state that they have searched the electronic data maintained by the county for Ramos and other defendants and non-parties, that several individual defendants (not including Ramos) have produced documents from their respective personal email accounts and text communications, and that third parties have produced documents in response to plaintiffs’ subpoenas seeking personal records relating to, among other things, communications with Ramos. The relevant questions are then whether the missing ESI is relevant and whether it is irreplaceable. With respect to the irreplaceable nature of the ESI at issue, ESI ‘often exists in multiple locations,’ and plaintiffs have not proffered expert testimony as to whether the email account and the texts can be restored or replaced with additional discovery. Plaintiffs did, however, provide evidence that they tried to retrieve the lost ESI from third parties. On the other hand, Ramos’s declaration makes clear that he deliberately deleted the text messages and canceled the email account, resulting in destruction. Further, it does not appear that… the county, Ramos, [or] Ramos’s counsel made any attempts to preserve the ESI. Defendants’ arguments that ESI in these locations was not relevant and was cumulative, however, is based on conjecture. Plaintiffs at least cite to evidence from these two sources, and obtained from other sources, that show they are relevant to the issues in this case. Based on this evidence, there is sufficient information to find that the ESI was lost.”
Judge Kewalramani’s analysis continued, “Routine destruction constitutes spoliation where a party ‘had some notice that the documents were potentially relevant to the litigation before they were destroyed.’ An entity and employee defendants can both be under a duty to preserve, and therefore culpable for spoliation of ESI, even if one or the other is directly responsible for the destruction of evidence. ‘A non-party’s spoliation of evidence may be imputed to a party who did not engage in spoliation.’ Plaintiffs argue defendants should have reasonably anticipated litigation by October 2017, when county counsel advised the board of supervisors about potential litigation related to the unsuccessful criminal investigation and prosecution of Burum, or by November 1, 2017, when James Erwin, a plaintiff in the consolidated actions who is not a moving party, filed his complaint. Plaintiffs contend that the relevant ESI was deleted sometime after July 2018, by which time plaintiffs had commenced litigation and even propounded discovery, while defendants argue the deletion occurred shortly after June 2018. Defendants argue that Ramos could not have been aware of allegations against him on November 1, 2017, based on the filing of Erwin’s complaint. Defendants further argue the county did not have a duty to preserve Ramos’s personal emails and texts. Regardless of whether defendants were on notice of pending or anticipated litigation involving plaintiffs in October or November of 2017, it is clear that the emails were lost after the commencement of litigation. [The] Colonies [Partners] filed its complaint on March 1, 2018, and counsel who is representing both the county and Ramos filed a waiver of service on behalf of Ramos on March 14, 2018. Mr. Burum filed his initial complaint on April 2, 2018 and again, the same counsel representing both the county and Ramos filed a waiver of service on behalf of Ramos. Consequently, Ramos, with the assistance of his experienced counsel, had a duty to preserve his emails and text messages following the commencement of the litigation. Instead, Ramos deleted text messages and closed his campaign account and is now claiming he had no idea he was required to preserve such ESI until some recent date—as late as his December 2019 deposition. Ignorance of this obligation of preservation, especially from sophisticated parties who have the assistance of experienced counsel, is not persuasive to this magistrate judge.”
Further, Judge Kewalramani ascertained, “Defendants counter that plaintiffs fail to show that Ramos intended to deprive plaintiffs of any evidence in litigation. Defendants point to the fact that Ramos sent emails and text messages to various individuals at the DA’s office, evincing he did not intend to conceal any communications. Further, defendants argue there is no basis for the motion against the county, a defendant who did not control access to Ramos’s personal phone or campaign email account. Ramos, as a former DA, is a sophisticated party who had the assistance of experienced civil litigation counsel, as least as of March 14, 2018. His explanations that he was unaware of these obligations to retain the emails and text messages that could be relevant and material to litigation he was embroiled in are unconvincing. This is even more so because Ramos, as an experienced criminal practitioner in the California state courts, should be familiar with Cal. Crim 371, which provides: If the defendant tried to hide evidence or discourage someone from testifying against (him/her), that conduct may show that (he/she) was aware of (his/her) guilt. Nevertheless, Ramos continued deleting text messages that pertained to the litigation and deleted his campaign email account from which he corresponded about work and personal matters after litigation commenced and long after litigation was reasonably foreseeable. Consequently, based on these factors, it is reasonable for this magistrate judge to infer that the materials were deleted with the intent to deprive their production to plaintiffs. Although the county’s obligations to preserve the lost ESI are somewhat attenuated, and the parties fail to provide much case law on whether Ramos’s actions are attributable to the county, based on the fact that the county reasonably anticipated the litigation and failed to prevent the destruction of the ESI— including failing to instruct Ramos to preserve ESI—and both the county and Ramos are be represented by the same counsel, the intent to deprive plaintiffs of the text messages and emails can be imputed to the county.”
Judge Kewalramani stopped short of recommending that terminating sanctions be applied against the county, Ramos and the other defendants, “Terminating sanctions are not warranted in this case,” Judge Kewalramani wrote. “Terminating sanctions should be reserved for the most egregious cases of misconduct. The record in this case does not support that plaintiffs are so harmed by the spoliation as to be unable to present their case, and it does not appear that defendants destroyed evidence in direct violation of a court order. Accordingly, the court recommends denying plaintiffs’ motion for sanctions insofar as plaintiffs request terminating sanctions.”
Nevertheless, Judge Kewalramani recommended that an adverse inference instruction be given to the jury that eventually hears the case, meaning, essentially that the jury will be informed that Ramos deleted the texts and emails, and that given the circumstances, it is logical for the jury to draw the inference that the texts and emails contained harsh statements about the plaintiffs in the case which demonstrates that Ramos was acting prejudicially against them.
“Based on the timing and circumstances of the text message and email deletions, the court infers bad intent from defendants’ actions,” Judge Kewalramani stated in his report and recommendation to Judge Bernal.
On March 27, Judge Bernal accepted Judge Kewalramani’s findings, which were filed on February 27, endorsing the conclusion that Ramos had a duty to preserve emails and text messages relevant to the issues being litigated in the suits brought by the Colonies Partners and Burum.
Bernal ordered the county to pay Larson reasonable attorney fees associated with the preparation of the motion, which Larson pegged at $42,589.
“It is shocking that any lawyer, particularly one serving as district attorney, would act in ‘bad faith’ and destroy evidence relevant to an on-going litigation,” Larson said. “I cannot describe the outrage felt by Jeff Burum, the Colonies Partners, and the others who have been subjected to Mike Ramos’ political persecution over this past decade, now only to discover that he destroyed evidence of his nefarious conduct.”
Slyngstad was not panicked by the Kewalramani’s findings and Bernal’s confirmation, which he has maintained has no direct bearing on the case, which he said relates to prosecutorial action taken in good faith against Burum after he utilized money as an influencing agent upon government officials to sway a political decision for his own unlawful financial gain which redounded to the detriment of the citizens of San Bernardino County. Slyngstad has suggested the convictions obtained against Postmus for taking bribes provided to him by Burum validate the criminal charges that the district attorney’s office, in conjunction with the California Attorney General’s Office, identified as applicable against Burum and his co-defendants, which were verified when the grand jury returned an indictment against them in 2011.
Former District Attorney Ramos Destroyed Evidence, Federal Judge Concludes
By Mark Gutglueck