By Mark Gutglueck
Rancho Cucamonga Developer Jeff Burum will be able to proceed to trial with most of his federal lawsuit against San Bernardino County alleging malicious and prejudicial prosecution, the falsification of evidence and retaliation remaining intact, U.S. District Judge Jesus Bernal ruled on July 28.
Burum, along with former County Supervisors Bill Postmus and Paul Biane, former Postmus business associate Dino DeFazio, former San Bernardino County sheriff’s deputies’ union president/one-time Assistant San Bernardino County Assessor Jim Erwin, and Mark Kirk, who was the chief of staff to former San Bernardino County Supervisor Gary Ovitt, were all prosecuted for what the San Bernardino County District Attorney’s Office and the California State Attorney General’s Office alleged was graft-ridden activity related to the $102 million payment the county made in November 2006 to settle a lawsuit the Colonies Partners in 2002 launched against the county and its flood control district relating to drainage issues at the Colonies Partners development consortium’s Colonies at San Antonio residential and Colonies Crossroads commercial subdivisions in the northeast portion of Upland. Ultimately, only Postmus was convicted of those charges, which included bribery, misappropriation of public funds, conspiracy, public employee conflict of interest, fraud and perjury.
Burum and Dan Richards are managing principals in the Colonies Partners, which beginning in 1997 undertook to develop residential and commercial projects on 467 acres of properly once-owned and utilized by the San Antonio Water Company that had historically been utilized for flood control and water settling, and which was deemed undevelopable and zoned as open space. The property was also subject to four flood control easements held by the San Bernardino County Flood Control district that had been recorded in 1933, 1934, 1939 and 1962. Upon the county proving less than cooperative with regard to having its flood control division facilitate the development of the property, the Colonies Partners in 2002 sued the county to force county accommodations in the construction of a flood basin on the property that would allow for the project to proceed.
Burum at that point had already cultivated a reputation for being very aggressive in his drive to pursue development projects, as had Richards. Burum’s and Richard’s developmental formula included making hefty political donations to officeholders, in particular ones who would later be called upon to vote to approve, or in some other fashion make decisions regarding, their projects. Among a certain element of the public, it was perceived that the duo had a significant number of politicians in their pockets. In 2002, Burum, Richards and the Colonies Partners were heavily involved in backing then-Rancho Cucamonga City Councilman Paul Biane in his electoral challenge of then-Second District Supervisor Jon Mikels. Richards and Burum perceived Mikels, whose Second District included Upland, as being hostile to the Colonies at San Antonio and the Colonies Crossroads projects because he believed that the Colonies Partners should defray the cost of building the flood control infrastructure that would be required for those projects to proceed. Mikels held that the county’s flood control division should not be saddled with the cost of providing that infrastructure so that the property could be developed and thereby allow the developers to achieve a profit at public expense. Burum, Richards and the Colonies Partners provided Biane’s campaign with $70,000, and further made provision of attack ads against Mikels, which contributed to Biane ousting Mikels in the November 2002 election. Two years later, Burum, Richards and the Colonies Partners were major supporters of Ontario Mayor Gary Ovitt in his successful election effort for the Fourth District county supervisor’s post.
Relatively early on in the litigation, the Colonies Partners scored what seemed to be a significant victory when Judge Peter Norell ruled that the flood control easements had been abandoned, meaning, in essence, that those easements restricting the use of the property were no longer binding because they had fallen into disuse. The county, however, appealed that ruling, which resulted in the 4th District Court of Appeal reversing Norell, stating that the flood control easements remained intact. In 2006, the case went to trial, at which point the matter had been transferred from Norell’s courtroom to that of Judge Christopher Warner. Warner heard the matter as a bench trial, meaning that no jury was involved, and he was entrusted to render a verdict. Warner ruled in favor of the Colonies Partners, with one of his key findings being that the easements had been extinguished, meaning essentially that the county had overused them. Though Warner had delivered his verdict in favor of the Colonies Partners, he had yet to make a determination of damages in the case. The county appealed Warner’s verdict on multiple grounds, again to the 4th District Court of Appeal. The county had a relatively high degree of confidence in the appeal, particularly in that Warner’s finding that the county had overused the flood control easements on the property was central to his verdict and that previously Warner’s bench colleague, Norell, had made a 180 degree contradictory finding that the county had not overused the easements but had underused them.
Meanwhile, Burum, in particular, had grown impatient with the litigative process and its seemingly interminable series of appeals. He importuned Biane and Ovitt as well as Postmus, whom he had more recently befriended and to whose electioneering fund he, Richards and the Colonies Partners had shown generosity in financially supporting, to use their authority to persuade the county’s stable of attorneys, known as the office of county counsel, to settle the lawsuit on terms favorable to the Colonies Partners. When that had no immediate impact, Burum, Richards and the Colonies Partners engaged the services of political movers and shakers they considered to be influential to assist them in their efforts to settle the lawsuit and allow their development projects to proceed. Those included Jim Brulte, the former Republican leader in the California Senate; Jim Erwin, the former president of the Safety Employees Benefit Association, the collective bargaining unit for San Bernardino County’s sheriff’s deputies; and Patrick O’Reilly, a public relations firm owner whose clients included the County of San Bernardino. After Warner rendered his verdict in the lawsuit, Burum’s and Richards’ assumption was that the board of supervisors would move to settle the matter prior to Warner rendering his determination with regard to monetary damages. When instead the board of supervisors collectively signed off on appealing Warner’s ruling to the 4th District Court of Appeal, Burum grew irate, concluding that the application of hundreds of thousands of dollars in honey he, Richards and their company had applied was doing no good, and he resolved instead to instead saturate Postmus and Biane, at the very least, in a heavy dose of vinegar. At that point, Postmus was involved in an electoral effort to move into the position of county assessor, the county’s highest taxing authority, which would augment the considerable political reach he had already attained as the chairman of the San Bernardino County Republican Central Committee. Being able to adjust the tax assessments on the real estate of the county’s wealthiest landowners and the taxable amounts to be assessed on the assets, machinery, buildings, foundries, factories and facilities of the county’s businesses would give him further leverage in wringing from them political donations he could use to promote his political ambition, Postmus figured, which at that time extended potentially to the California Assembly, the California Senate, Congress and perhaps even California’s governorship. But pointedly, Burum made clear to Postmus, neither he, Richards nor the Colonies Partners would be supporting him in his run for assessor until the lawsuit was settled. That same year, Biane, against whom no opponent for his Second District supervisor’s seat had emerged, was sponsoring Measure P, which called for the supervisors’ $99,000 in salary per year and the $45,000 in benefits they were provided with being increased to $151,000 in salary and roughly $68,000 in benefits annually. Burum emerged as the major supporter of the campaign against Measure P.
Three weeks after the November election, in which Postmus was elected assessor and Measure P passed, the board of supervisors in a 3-to-2 vote, with Postmus, Biane and Ovitt prevailing and supervisors Dennis Hansberger and Josie Gonzales dissenting, voted to settle the lawsuit the Colonies Partners had brought against the county for $102 million and an agreement to build the flood control basin on the Colonies Partners northeast Upland property. That vote was one of Postmus’s last official acts in the role of supervisor. 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 a $100,000 check from the Colones Partners’ account to the newly-created political action committees set up by Erwin, the Committee for Effective Government; another to the political action committee set up by Kirk, the Alliance for Ethical Government; wrote two separate $50,000 checks to the political action committees established by Postmus, the Conservatives for a Republican Majority and the Inland Empire PAC; 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, the San Bernardino County Young Republicans.
Among those who knew of Burum’s donation of $200,000 to the political action committees controlled by Postmus and Biane and the $100,000 that went to the political action committee of Ovitt’s chief of staff, there was a widespread perception that the money Burum and the Colonies Partners were handing around constituted kickbacks, bribe money paid out to reward the three supervisors who had supported the $102 million settlement. There were, however, no arrests made in the immediate aftermath of the donations having been made or received.
In 2008, after reports that Postmus was allowing the assessor’s office, its facilities, equipment and personnel to be utilized for partisan campaign activity relating to that year’s primary and general elections, the district attorney’s office initiated inquiries into the function of the assessor’s office, which was accompanied by a grand jury probe. Ultimately, those investigations uncovered improprieties and misappropriations involving Postmus and then-24-year-old Adam Aleman, whom Postmus had hired to serve as assistant assessor when he was 23. Under questioning by district attorney’s office investigators, Aleman ranged onto topics beyond those involving the assessor’s office. He related that in 2006, while he was working as a field representative in Postmus’s supervisor’s office, he had been aware that his boss, Postmus, as well as Biane were under severe pressure to settle the Colonies Partners litigation on terms favorable to the Colonies Partners. That pressure, Aleman stated, included blackmail attempts formulated by Burum, Erwin and O’Reilly. Aleman described the blackmail as involving the creation and then ultimately the withholding of political mailers and handbills that portrayed Postmus and Biane, who were then, respectively, the chairman and vice chairman of both the San Bernardino County Board of Supervisors and the San Bernrdino County Republican Central Committee, in highly negative light. The mailers, which corresponded with Postmus’s campaign for assessor and the campaign for the Biane-sponsored Measure P, according to Aleman, were exposés of Postmus’s homosexuality and addiction to methamphetamine and Biane’s state of financial insolvency that had him on the brink of bankruptcy. In this way, according to Aleman, Burum, with the assistance of Erwin and O’Reilly, had extorted Postmus and Biane into supporting the $102 million settlement. Aleman further spelled out the connection between the settlement and the $400,000 in donations to the political action committees controlled by Postmus, Biane, Erwin and Kirk in the spring and early summer of 2007. The $100,000 payment to Biane’s political action committee, which had been set up by Biane’s chief of staff Matt Brown, and the two separate $50,000 donations to Postmus’s two political action committees were direct payoffs, Aleman said. The $100,000 donation to the political action committee controlled by Mark Kirk, Ovitt’s chief of staff, was an indirect payoff, one that rewarded Kirk for influencing Ovitt to support the settlement, Aleman related. The $100,000 donation to Erwin’s political action committee, Aleman said, was intended as payment to Erwin for having assisted Burum in persuading Postmus and Biane to settle the lawsuit.
During their investigation into what Aleman said, the district attorney’s office investigators learned that all of the political action committees Aleman spoke of existed and had received the donations in the amounts Aleman had specified.
In the case of Biane’s political action committee, Biane’s chief of staff, Matt Brown, and one of his field representatives and later district director, Tim Johnson, were identified as board members, which the investigators concluded was part of an attempt to hide Biane’s involvement in the committee.
Kirk had also sought to insulate himself from being directly implicated in the reception of funds into and expenditure of funds out of his political action committee by delegating the structuring of the political action committee to Patrick Riley, a friend and political operative. Riley, in turn, installed his mother, Kathleen Rough, and 77-year-old Lorene “Kitty” Stennett, respectively, as the vice chairwoman and the chairwoman of the political action committee, without telling them of their status or duties. He also designated then-Chino Hills Mayor Curt Hagman as an Alliance For Ethical Government officer, apparently with Hagman’s consent. Riley listed four others – Andre Kuhr, Jeff Sorenson, Tim Neel and Charlie Dane – as officers of the political action committee on the Alliance For Ethical Government’s organization page. There is no evidence that Kurh, Sorenson, Neel or Dane actually existed. Riley then made indications that regular meetings of the PAC’s board were taking place, though those meetings were never actually held, and no minutes for them were recorded. Riley used these non-existent meetings as the basis for directions to make disbursements from the Alliance For Ethical Government’s fund account, forging Stennett’s signature and that of his mother on the authorizations for those disbursements, which included two separate $10,000 fees paid to Kirk for his services as a consultant to the committee.
Postmus had similarly created, with the assistance of Aleman and his political and business associate Dino DeFazio, two political action committees, the Conservatives for a Republican Majority and Inland Empire PAC, such that his involvement with them and his actual control of them was obscured. After Aleman told investigators that Postmus was the actual operator of the political action committees, that he had created an email address for Postmus to control expenditures of the Inland Empire PAC, and that he used the email to direct expenditures on behalf of Postmus, those investigators confronted DeFazio, who was represented as the committee’s principal. On October 22, 2009, when DeFazio testified before a grand jury, he claimed that he, Mike Richman, Mike Gallagher and Jeff Bentow had exclusive control of the Inland Empire PAC. Subsequently, district attorney’s office investigators caught up with Gallagher and Bentow. Gallagher, a wealthy developer, said he was unaware he was an officer with the committee, and his only interaction with DeFazio related to the Inland Empire PAC was discussion about monetary donations he was going to make to it. Bentow gave a nearly identical version of his experience with DeFazio relating to the political action committee, saying he had no idea he was an officer of the Inland Empire PAC, and that he had merely spoken with DeFazio about making a contribution to the committee. In November 2009, Richman told district attorney’s office investigators that Postmus and Aleman recruited him to serves as the executive director of the Inland Empire PAC with the understanding that Postmus would secretly control the political action committee.
Joining with then-California Attorney General Edmund G. Brown Jr, District Attorney Mike Ramos filed criminal charges against Postmus and Erwin on February 9, 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 dollar 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. 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.
Both Postmus and Erwin pleaded not guilty to the charges.
On February 24, 2010, the district attorney’s office filed a criminal complaint against DeFazio, alleging two counts of perjury.
Thirteen months later, 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. Postmus was the star witness before the grand jury that was impaneled and heard testimony in April 2011.
Adam Aleman, who in 2008 had been charged criminally with regard to misappropriation and other illegal activity in the assessor’s office, pleaded guilty to four felonies. He, too testified before the grand jury in 2011, as did Greg Eyler, another of Postmus’s political associates.
In May 2011, the grand jury returned 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. Neither Richards nor O’Reilly, who had been unnamed but identifiable as the uncharged co-conspirators in the criminal complaint filed against Postmus and Eriwn the previous year, were not indicted.
There was 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, such that some of the charges used less than straightforward language, indeed tortuous wording, in an effort to get around the statute of limitations.
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 Aleman during an interview/interrogation of him in November 2008.
The charges listed in the indictment included conspiracy to commit a crime, misappropriation of public funds, aiding and abetting a public official in receiving a bribe to influence a vote, receiving and agreeing to receive a bribe to influence a vote, public official conflict of interest, tax fraud, tax evasion, perjury and forgery.
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 December 2016, jury selection for the case was undertaken and completed, and the case went to trial before Judge Michael A. 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.
The prosecution was handled in the main by Supervising Deputy California Attorney General Melissa Mandel and Supervising San Bernardino County Deputy District Attorney Richard Lewis Cope, who were augmented by deputy district attorneys Michael Abney and Carlo DiCesare. Guiding the defense as the main strategist for all four of the defendants was Burum’s lead attorney, Stephen Larson. Also representing Burum were Jennifer Keller, Jonathan Phillips and Steven Haskins. Representing Biane was Mark McDonald. Representing Erwin was Raj Maline. Representing Kirk was Peter Scalisi.
A total of 39 witnesses, all of them called by the prosecution, were heard from in the course of the trial, in some cases for days on end. Matt Brown, Biane’s chief of staff 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 during Jennifer Keller’s cross examination of Postmus, obtained from him an in-depth acknowledgment of his drug addiction in the 2005 through 2009 time period and that he was in the throes of the same when he was grilled prior to the 2011 indictment by two of the district attorney’s office investigators, Robert Schreiber and Hollis Randles. Under the suggestive questioning by Keller, Postmus undercut much of what he had testified to on direct examination by stating he believed that the investigators put words into his mouth or filled in details when he had lapses in memory. He then testified that he began to believe those details. Postmus stated that one of those false beliefs was that he had a deal with Burum ahead of the vote to exchange support of the settlement for the $100,000 his political action committees subsequently received from the developer.
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 shredded the heart of the case, as Aleman’s testimony was a central, and perhaps even the most powerful, element of the prosecution’s narrative.
Ultimately, after testimony from prosecution witnesses that lasted until August 2017 and the decision by all of the defense attorneys to not 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 Partners’ development projects 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.
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. Thereafter, the prosecution elected to dismiss the charges against Erwin. Ultimately, prosecutors dismissed the perjury charges that had been brought against DeFazio as well. After the acquittals and Erwin’s dismissal, each of the five 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. Likewise, DeFazio filed suit over his legal ordeal.
The suits alleged 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. Those originally named as defendants were the County of San Bernardino; former District Attorney Michael Ramos, former Assistant District Attorney James Hackleman, district attorney’s office investigators Hollis Randles and Robert Schreiber, Supervising Deputy District Attorney R. Lewis Cope, California Supervising Deputy Attorney General Melissa Mandel and Senior Assistant California Attorney General Gary Schons.
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.
The County of San Bernardino and the county defendants are represented by the law firm of Burke, Williams and Sorensen, with that firm’s Charles Slyngstad, serving as the lead defense attorney.
Mandel and Schons were previously dismissed as defendants.
All of the cases were scheduled to be heard by Federal Judge Jesus Bernal in the U.S. District Court in Riverside. The cases were consolidated, with the suit brought by the Colonies Partners as the “lead case,” because, according to Bernal, the “facts and claims alleged in [the] Colonies [case] are nearly identical to those in” the other cases.
On January 27, 2020, the County of San Bernardino, Hackleman, Ramos, Cope, Schreiber, and Randles filed motions for summary judgment on the cases, seeking to have them dismissed in their entirety.
Bernal granted Cope’s motion to be dismissed as a defendant from all of the cases. He further threw out, in their entirety, the cases brought by Erwin and DeFazio. Additionally he granted the dismissal of all of the elements of the suits brought by Biane and Kirk with the exception of their allegations relating to false and fabricated evidence having been utilized in the prosecution against them.
“Kirk and Biane do not provide more than a scintilla of evidence defendants were substantially motivated by animus against them,” Bernal wrote in his ruling. “The court also concludes they fail to state a claim that defendants conspired to
retaliate against them. The court is mindful that Kirk and Biane’s false and fabricated evidence claims survive for now. But it is far from evident the two can state a malicious prosecution claim on that basis alone, or that such a novel formulation of their claim would be within the scope of their operative complaints: for example, malicious prosecution with the purpose of violating Fourteenth Amendment due process rights.”
Bernal wrote of the conspiracy claims brought by Kirk, Biane, Erwin, and DeFazio, “These plaintiffs have not demonstrated the investigation was substantially motivated by retaliatory animus against them and thus, no conspiracy to retaliate could have existed.”
That was not the case with regard to Burum or Burum’s company, however, according to Judge Bernal. In his ruling, Judge Bernal left, with the exception of the claims against Cope, virtually all of the cases brought by the Colonies Partners and Burum intact.
Significant to Bernal’s ruling were several communications involving Ramos and Hackleman, all of which both of those men had assumed were secure and confidential, which were leaked to Larson’s legal team. The identity of the individual who had provided those communications is not publicly known, but appears to be someone close to Ramos, as the emails include ones to or from district attorney’s office employees using the office’s email system as well as emails to and from Ramos at the address he was using for his reelection committee. Those emails demonstrate a considerable animus toward Burum.
Ramos wrote, to his staff, for example, that “Burum is feeling cocky and is spreading his political power around.”
In those emails, district attorney’s office staff referred to Burum as “Dr. Evil.” One email stated that “Burum is . . . a dirty word.”
As the 2010 election season was approaching, Ramos made statements in his email communications that might suggest he considered the prosecution of Postmus and Burum with regard to the Colonies Partners lawsuit settlement potentially useful in his upcoming campaign for reelection. In 2009, after reports of Ramos’s womanizing and other improper behavior publicly surfaced, Ramos in emails directed his office’s public integrity unit to focus on filing a criminal complaint before the date candidates for countywide office could file to challenge him, expressed concern that a challenger for the office of district attorney might emerge from the “Burum camp,” and stated that the public integrity unit could be beefed up with more investigators or attorneys. Ramos, at one point without referencing any evidence to support his assertion, in an email to members of his office said they “may” need to keep an eye on “Burum & Co.”
because their next step “may be laundering campaign funds.”
Hackleman, in an August 13, 2010 email that was sent after Postmus was arrested on a drug possession charge, described Postmus as “the key to getting $102 million out of Burum’s pocket and back into the public treasury.”
In December 2010, Hackleman emailed Ramos and other members of the district attorney’s office, stating his belief that “we will need at least every pressure we can bring to bear on [Postmus] if we ever have any hopes of seeing him turn.”
On February 8, 2011, Hackleman wrote in an email regarding the decision to include in the next day’s criminal filing against Postmus and Erwin descriptions of Burum, Richards, Biane, Kirk and O’Reilly as unidentified, unnamed and uncharged co-conspirators that he was “emotionally excited about going after these bastards,” but remained “short of being confident” due to a lack of significant evidence beyond the statements that had been provided by Aleman.
In one email, Hackleman indicated the district attorney’s office’s goal was to “absolutely ruin Burum as a political operator.”
After the lawsuits were filed, Ramos purged his email account and allowed his campaign emails located at email@example.com to be destroyed. He also erased all of the text messages from his phone, which Larson in a motion to the court referred to as evidence “spoilation.” Judge Bernal agreed, and he sanctioned the county in April for the destruction of evidence.
In his July 28 ruling, Judge Bernal stopped short of fully accepting as true Larson’s allegation that the prosecution and its investigators engaged in the fabrication of evidence against Burum and the others. Judge Bernal did hold, however, that there remains “a triable issue on whether false or fabricated evidence from the February and March 2011 Postmus interviews influenced the decision to pursue an indictment against Burum.”
Judge Bernal further stated, “A reasonable juror could conclude that individual defendants at the PIU [public integrity unit] and DA’s office acted pursuant to ‘a longstanding practice or custom’ of retaliating against Burum or Colonies for protected speech activity.”
“Colonies and Mr. Burum are grateful that Judge Bernal denied San Bernardino County’s latest attempt to sidestep responsibility for its corrupt acts, and the unconscionable action of DA Mike Ramos,” Larson said. “The county spent 20 years waging a vendetta against Mr. Burum and his company, culminating in their shameless violation of his civil rights by pursuing a politically-motivated criminal case to deny him his freedom – a case that a jury deemed to be utterly baseless.”
Larson, while characterizing Bernal’s ruling as a significant victory for Burum and the Colonies Partners, said the county and the remaining defendants are running a severe risk of embarrassing themselves further when the matter goes to trial and costing the county’s taxpayers more money. “Instead of doing the right thing, the county continues to stubbornly expose their taxpayers to hundreds of millions in liability in its vain effort to justify the indefensible and vengeful acts of former DA Ramos and other county officials,” Larson said. “We look forward to questioning Mr. Ramos, other county leaders, and prosecutors in a public trial where their spiteful motivations and wrongdoing will be laid bare.”
Indeed, the plaintiffs have in their legal quiver certain ammunition, such as the emails, providing them with a potential advantage. Nevertheless, the defense has advantages of its own that it will seek to bring to bear if the matter goes before a jury. During the 2017 criminal trial, all four of the defendants asserted their Fifth Amendment rights against testifying. In the civil case, however, the defense will be able to call all four of the one-time defendants now-turned-plaintiffs to the witness stand and question them in exhaustive detail with regard to the issues that led up to the criminal charges filed against them, including activity before the settlement, the settlement itself, the provision of the separate $100,000 in donations to the political action committees controlled by two of the three supervisors whose vote in favor of the settlement was crucial to its passage and the $100,000 to the political action committee of the chief of staff of the third supervisor who voted to confer upon the Colonies Partners the $102 million settlement. Fair game in that questioning will be the elaborate means – the outright falsification – used to obscure who actually controlled those political action committees. Unless Larson can find some legal grounds to prevent it from occurring, those plaintiffs will very likely be asked to explain why each of those $100,000 donations should not be interpreted as a quid pro quo – a kickback – for the approval of the $102 million settlement.
Trial is currently scheduled to begin on September 29, 2020. There are indications, however, that both Erwin and DeFazio intend to appeal the dismissal of their cases to the 9th U.S. Circuit Court of Appeals in Pasadena, and that Kirk and Biane will appeal as well with regard to the dismissal of the overriding number of elements in their case. As such, the cases are likely to be tied up in the appeal process for 12-to-14 months.
By Mark Gutglueck