By Mark Gutglueck
The expense of Bill Postmus’ legacy to San Bernardino County this week rose to $167 million and counting as the board of supervisors agreed to pay developer Jeff Burum and the Colonies Partners consortium he heads with Dan Richards $65 million to settle dual lawsuits Burum and his company brought against the county in 2018.
Those lawsuit settlements come as the denouement to Postmus’s testimony more than nine years ago that alleged Burum paid him two $50,000 bribes in exchange for his vote in 2006 to have the county confer a $102 million settlement on the Colonies Partners to bring to a close a lawsuit that company had initially brought against the county in 2002.
Based in large measure on Postmus’ April 2011 testimony before a criminal grand jury, Burum in May 2011 had been named in a 29-count indictment, along with Paul Biane, who had served on the San Bernardino County Board of Supervisors with Postmus; former San Bernardino County Sheriff’s Department deputies’ union president and one-time Assistant San Bernardino County Assessor Jim Erwin; and Mark Kirk, who had served as the chief of staff of another Postmus and Biane board colleague, Gary Ovitt.
In 2000, Postmus at the age of 29 was elected First District county supervisor representing practically all of San Bernardino County’s desert expanse, equal in area to three New England States. By the time he was 33 in 2004, he had become the chairman of both the board of supervisors and the county’s Republican Party apparatus, and two years later, in 2006, he was entrusted by the voters with the county’s highest taxing authority when he was elected county assessor.
It was also in 2006 that a confluence of events coalesced that involved Postmus’ political ambition and the financial ambition of two aggressive businessmen, Dan Richards and Jeff Burum. That year, fate threw Postmus, Richards, Burum, Biane, Erwin, Kirk and Ovitt together into a long-drawn-out misadventure. Also involved were Postmus’ business partner Dino DeFazio, Postmus’ one-time field representative Adam Aleman whom he later appointed to serve as his assistant assessor, Biane’s one-time best friend and chief of staff Matt Brown, Biane’s assistant chief of staff Tim Johnson and a public relations guru who worked for Burum, Patrick O’Reilly. That misadventure revolved around Burum’s and Richard’s effort to develop 489 acres of what was previously considered undevelopable land in north Upland.
The property in question was highly problematic. Owned by the San Antonio Water Company for more than a century, the land lay 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 the mountain topped by 8,696 foot-elevation Ontario Peak, which towers to the north above Upland and San Antonio Heights, 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 gravel 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.
Beginning in the 1970s, well prior to Richards’ and Burums’ effort to develop the property, four highly reputable residential development companies in succession 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 would eventually be dubbed the San Antonio Lakes project. That included redressing the overwhelming drainage issues on the property, which would entail building a contrivance to carry rainwater 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 accumulated 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, forsook proceeding with the development of the property.
In 1996, four years before Postmus had been elected to the board of supervisors, then-44-year-old Dan Richards formed the Colonies Partners with then-33-year-old Jeff Burum.
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 and became 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 long owned by the San Antonio Water Company and utilized for purposes of groundwater recharge and flood mitigation located in the northeastern quadrant of what is now Upland.
It was Richards’ and Burum’s intention to convert that land into a residential subdivision with some order of a commercial component.
Richards was undaunted by the challenges pertaining to the property that had convinced Penhill, Kohl, the William Lyon Company and Lewis Homes to desist with their development designs there. Richards, as a former public official, understood 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. With 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 younger and 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 closing the deal with CalTrans, Richards had made for the Colonies Partners almost $1 million more than the consortium 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 storm drains, 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 drainage 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 for the Second District supervisorial position. 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 Stout ran for San Bernardino County District Attorney, emerging victorious as Mikels again cruised to an easy victory in his reelection campaign for supervisor. Both were unopposed in their 1998 reelection bids.
In 2002, 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. Together with the investors in the Colonies Partners, they 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 November 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. The Fourth District Court of Appeal, however, overturned Norell on that point, 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 contributor 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 was gravitating toward an appeal with regard to Warner’s verdict, waiting only upon Warner’s yet-to-be-delivered final decision with regard to the monetary judgment in the case before filing that challenge of Warner’s ruling.
Simultaneously, based on reports of improprieties relating to contact between and collusion involving the Colonies Partners and both Judge Warner and Judge Norell extending to Norell having been bribed through his ex-wife being permitted to purchase a home in the Colonies at San Antonio project for roughly $200,000 less than the asking price and Warner being blackmailed over elements in his personal life, the county pursued with the California Commission on Judicial Performance complaints against both jurists.
By then, Burum and Richards 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.
Supervisors Josie Gonzales and Dennis Hansberger, like Mikels, opposed having the county subsidize the building of the flood control infrastructure for the Colonies subdivisions altogether, and they were both, after Warner’s ruling, supportive of the county’s contesting the verdict in the civil suit. Of note was that the Colonies Partners’ hostility at that point was vectored less at Gonzales and Hansberger and more 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 a $151,000 annual salary and roughly $68,000 in yearly 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 corporate 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-Third District Supervisor Dennis Hansberger and Fifth District 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 Colonies Partners’ account to the newly-created political action committees set up by Erwin and Kirk, known respectively as the Committee for Effective Government and the Alliance for Ethical Government. They also wrote two separate $50,000 checks to the political action committees, Inland Empire PAC and Conservatives for a Republican Majority, which were established by Postmus with the assistance of his business partner Dino DeFazio and his political associate, Adam Aleman. Burum and his brother further provided a $100,000 check to a previously existing political action committee that had been set up by Biane’s chief of staff, Matt Brown, the San Bernardino County Young Republicans, over which both Biane and Brown had control.
Upon taking office as assessor, Postmus had created two assistant assessor positions, whereas previously under his predecessor Don Williamson there had been a single assistant assessor post. Postmus 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 engaged 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 as district attorney in 2002, Mike 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 U.S. Attorney’s Office were carrying out an investigation into Congressman Lewis’s relationship with the Copeland Lowery Jacquez 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 early 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 for reelection 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. In 2012, at which time the investigation was concluded, Lewis opted out of seeking reelection, and he left office in January 2013.
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 2006 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. “Jerry” Brown Jr., Ramos filed criminal charges against Postmus and Erwin in February 2010, alleging the two $50,000 payments to Postmus’ political action committees made by Burum in 2007 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, in conjunction with Patrick O’Reilly, a public relations consultant retained by the Colonies Partners, in 2006 put together political mailers depicting Postmus as a drug addict and homosexual and then withheld them in order to blackmail the board chairman and assessor’s office candidate into voting for the settlement. The prosecution further alleged that Erwin and O’Reilly 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. Those mailers were likewise withheld as part of an effort to extort Biane into supporting the settlement, according to prosecutors.
The complaint alleged the November 2006 votes by Postmus, Biane and Ovitt 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 O’Reilly.
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 and prosecution of the matter.
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 with investigators and prosecutors. 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 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 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 or supplying 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, himself a Republican, 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 lenient treatment for Richards.
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 also received a $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 seemingly implicating himself and Burum in the effort to blackmail Postmus, could be considered by Erwin’s jury but could also be kept from the jury hearing the case against the other three. Because all four of the defendants stood on their Fifth Amendment rights to refuse to testify at trial, Burum, Biane and Kirk employed their Sixth Amendment rights to be able to confront any of the witnesses against them to prevent Erwin’s statements to the investigators serving the search warrant at his home from being used against them.
A total of 39 witnesses were heard from during the trial. 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 audio device to record dozens of conversations with Biane in 2009 and 2010, proved uncooperative when he was called upon to testify at the trial.
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 separate $100,000 donations that Postmus and Biane each received as contributions 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 was a bribe, per se.
The defense, primarily in the person of one of Burum’s attorneys, Jennifer Keller, succeeded in eliciting from Postmus an admission of heavy methamphetamine use in the 2005 through 2009 time period, and 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 presentation.
Ultimately, after testimony from prosecution witnesses that lasted until August 2017 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 allowing the Colonies at San Antonio residential and Colonies Crossroads commercial subdivisions to proceed and convince the members of the board of supervisors to settle 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 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. The cases were consolidated and scheduled for trial before U.S. Federal Judge Jesus Bernal in Riverside.
The Colonies Partners and Burum were represented by Larson; Erwin was represented by Raj Maline, who served as his defense attorney during the criminal trial; Kirk was represented by Peter Scalisi, who served as his defense attorney at trial. Biane, who was represented in the criminal matter by Mark McDonald, was represented in his federal civil suit by Dale Galipo.
Also suing the county was Dino DeFazio, who had assisted Postmus in setting up the two political action committees into which had been deposited during the first six months of 2007 the separate $50,000 checks from the Colonies Partners. DeFazio was not indicted by the criminal grand jury, but had been charged with six counts of perjury that related to his effort to assist Postmus in laundering campaign funds. DeFazio remained subject to prosecution until all of the charges against him were dismissed in January 2018.
Those named as defendants in the federal civil suits were the County of San Bernardino; former District Attorney Michael Ramos; Assistant District Attorney James Hackleman; district attorney’s office investigators Hollis Randles and Robert Schreiber; 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; Mandel; then-Governor and former California Attorney General Edmund “Jerry” Brown; then-California Attorney General Kamala Harris; Senior Assistant California Attorney General Gary Schons, former San Bernardino County Counsel Ruth Stringer and Adam Aleman.
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 2006 settlement of the lawsuit that company had brought against the county in 2002 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. Ramos 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 2006-to-2009 timeframe, a factor that would severely complicate the prosecution of Burum, Biane and Kirk once it began in 2011, as the statute of limitations relating to their alleged actions in 2006 and 2007 had for the most part elapsed.
In the run-up to the 2010 election, Ramos’s loyalty toward his former patrons and political benefactors 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 – and by extension Burum and the Colonies Partners – so it could be trumpeted as one of his accomplishments.
Moreover, since the 2017 acquittals and the 2018 filing of the lawsuits, acts by Ramos severely complicated the county’s legal position. Prior to and during the 2017 trial, Ramos had engaged in communications, including emails, with Assistant District Attorney James Hackleman and other members of the prosecution team in which he made personal attacks on the defendants and their legal representatives. During the course of the 2018 election, while he was faced with the spirited and ultimately successful challenge by Anderson, Ramos discussed, by both email and in text messages originating from his personal, district attorney’s office and campaign communication accounts, seeking prosecutorial action against Burum for the monetary support he was providing to Anderson, suggesting that the support was tantamount to bribery or an illicit effort to impact the outcome of the election. Subsequently, recognizing such statements seeking to preclude Burum’s First Amendment rights might be construed in a negative light, Ramos erased, deleted or destroyed those emails and text messages. An individual with access to at least some of those communications, one whose identity has not been publicly disclosed but who is thought to be either a former or current member of the district attorney’s office, provided copies of some of those electronic communications to the legal team representing Burum and the Colonies Partners. In March, after Larson made a motion to the court for terminating sanctions – a judgment against the county upholding the entirety of Burum’s and the Colonies Partners’ lawsuit against the county based on what he said was the destruction of evidence – Judge Bernal routed the motion to U.S. Magistrate Judge Shashi H. Kewalramani to evaluate it and make determinations, findings and recommendations. Judge Kewalramani made a determination that Ramos acted in bad faith and engaged in the spoilation of relevant evidence. Stopping short of calling for the application of terminating sanctions against the county, Ramos and the other defendants, Judge Kewalramani on February 27 nevertheless recommended that an adverse inference instruction be given to the jury that eventually hears the case, meaning, essentially that the jury was to be informed that Ramos deleted the texts and emails, and that given the circumstances, it is logical for the jury to conclude the texts and emails contained harsh statements about the plaintiffs in the case, demonstrating 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. Kewalramani found unconvincing Ramos’s claim he did not know he was obligated to preserve his text messages or emails, and that as a lawyer who had been district attorney for 16 years he could not plausibly assert he did not recognize the communications he destroyed constituted critical evidence that would potentially be used at trial.
On March 27, Judge Bernal accepted Judge Kewalramani’s findings, 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.
The board of supervisors met on Tuesday, November 24, in a specially-called closed executive session at which it discussed the cases brought against the county by Burum, the Colonies Partners, Ervin, Kirk, Biane and DeFazio. During that closed session, the board voted to settle the matter involving Burum and the Colonies Partners for $65 million.
A joint statement by the county and Larson said, “The County of San Bernardino, its flood control district, Colonies Partners, L.P., and Colonies’ co-managing partner, Jeffrey Burum jointly announce that they have reached a settlement agreement resolving litigation that was filed in 2018. The settlement agreement was approved by the board of supervisors, Colonies Partners, and Mr. Burum on November 24. The litigation included, among other things, a civil rights claim against the county, former District Attorney Michael A. Ramos, and three former district attorney office members for First Amendment retaliation and a breach of contract claim against the county and the flood control district.”
According to the joint statement, “Both sides vigorously contested the litigation, which included extensive discovery and multiple contentious motions. The $65 million that will be paid to Mr. Burum and Colonies Partners reflects the claims and damages, including losses and out-of-pocket costs, incurred by Mr. Burum and Colonies Partners in the alleged retaliatory investigation and prosecution of Mr. Burum, which resulted in his acquittal on all counts. The agreement ends many years of disputes between the county and flood control district and Mr. Burum and the Colonies Partners. If the case had gone to trial, Colonies Partners and Mr. Burum were seeking damages of between $120 million and $185 million.”
David Wert, San Bernardino County’s public information officer, said, “This agreement protects the county’s taxpayers from what could have been a more costly outcome. This subject has consumed a great deal of the county and flood control district’s attention and resources for the past two decades. The county and flood control district look forward to moving beyond this and giving their undivided attention to improving the lives of county residents.”
Larson said, “The settlement as approved by all parties brings to an end the long and traumatizing conflict that unnecessarily consumed more than two decades of Mr. Burum’s life and inflicted lasting damage on his business interests, his finances, his family and his personal wellbeing. Despite a deep desire to see these matters presented publicly to jurors in a court of law, Mr. Burum and the Colonies Partners agree that, for themselves and the residents of San Bernardino County, the time has come to bring this troubling chapter to a conclusion.”
The matter was previously scheduled to go to trial beginning on September 29. After Judge Bernal on July 28 dismissed the suits brought by Erwin and DeFazio in their entirely and dismissed the overriding number of elements in the cases brought by Kirk and Biane, appeals were lodged by those four plaintiffs with the 9th U.S. Circuit Court of Appeals in Pasadena, which meant that the September 29 start date of the trial would likely be pushed back, most likely at least until July 2021 and perhaps until September 2021.
Though Tuesday’s board of supervisors agenda provided the possibility that the cases brought by all six plaintiffs would be settled, the only cases disposed of were those filed by Burum and the Colonies Partners.
Judge Bernal’s ruling that was absolutely in favor of the county with regard to dismissing in their entirety the Erwin and DeFazio suits and his ruling substantially in favor of the county in the Kirk and Biane matters which eliminated all but one cause of action in each of those two matters renders it highly unlikely that the county will be amenable to settling with either Erwin or DeFazio on any terms absent a reversal of Judge Bernal’s ruling by the 9th Circuit. Withal, Judge Bernal’s gutting of all but one aspect of the cases brought by Kirk and Biane precludes the likelihood that the county will settle the cases brought by the two remaining plaintiffs for anything more than a mere fraction of what was conferred on Burum and the Colonies Partners.
The Sentinel’s effort to reach Postmus, who was unsuccessful in getting his guilty pleas vacated after the 2017 acquittals and was sentenced to three years in state prison in November 2018 but was released in July 2019, was unsuccessful.
By Mark Gutglueck