(January 21)  In their zeal to make a federal criminal case against the defendants who were already charged with bribery-related crimes in the state’s Colonies Lawsuit Settlement Public Corruption Prosecution, FBI agents and members of the U.S. Attorney’s Office violated the constitutional rights of the central figure in the case, his lawyer has alleged in recent filings in U.S. District Court.
The California Attorney General’s Office and the San Bernardino County District Attorney’s Office obtained an indictment against Jeff Burum, Paul Biane, Mark Kirk and Jim Erwin in May 2011. That indictment alleged Burum, one of the two managing principals of the Colonies Partners, first extorted and then bribed then-supervisors Bill Postmus and Paul Biane to vote to approve conferring a $102 million payment to the Colonies Partners in 2006. That payment was made to settle a lawsuit brought against the county by the Colonies Partners in 2002 over flood control issues at the Colonies at San Antonio residential and Colonies Crossroads commercial subdivisions in northeastern Upland.
According to the prosecution, Burum, with the assistance of Erwin, a former president of the San Bernardino County sheriff’s deputies union who was working as a consultant to the Colonies partners, in 2006 threatened Biane and Postmus, who were that year involved in political campaigns, by creating political mailers that dwelled on derogatory information pertaining to both. Prosecutors further allege that those mailers were withheld from distribution and that three weeks after the election Postmus and Biane joined with supervisor Gary Ovitt in approving the $102 million payment to the Colonies Partners. The prosecution alleges that subsequent to the $102 million settlement, payoffs were made to Postmus, Biane and Mark Kirk, the latter being supervisor Gary Ovitt’s chief of staff.  These payoffs were in the form of separate $100,000 payments over the next seven months to political action committees controlled by Postmus, Biane and Kirk. Kirk was paid, prosecutors allege, for influencing his boss, Ovitt, to support the settlement payment.
Postmus had been named in a previous indictment concerning this alleged activity along with Erwin, in February 2010. Though he had initially pleaded not guilty in response to that indictment, in March 2011 he entered a guilty plea to all charges against him. He then served as the star witness when a second grand jury was impaneled in April 2011, which led to the superseding indictment in May 2011, which renamed Erwin and added Burum, Biane and Kirk.
Four months after the superseding indictment was handed down, the FBI in conjunction with IRS agents served nine search warrants at various locations in Southern California, including the residences and/or the business offices of Burum, Biane, Erwin, and Kirk, unmistakably signaling the federal government’s interest in the case.
Burum’s legal team immediately went to work, challenging the search warrants, asserting that the wholesale seizure of materials and data from Burum’s home, office, computers and communications devices was overbroad and requesting the immediate return of data critical to the operation of Burum’s business operations. A protracted back-and-forth between Burum’s legal team and the U.S. Attorney’s Office ensued, the upshot of which was that prosecutors were for the time being permitted to retain custody of the seized materials, but a special master was appointed and a protocol was established by which the materials were to be evaluated as to their relevance to any possible prosecution and those deemed as irrelevant to the legal case against Burum or the other defendants were to be destroyed or returned to their owners.
By May 2012, the U.S. Attorney’s Office had come to the conclusion that it would not proceed against any of the defendants in federal court, although no public indication of this decision was given. At that time, FBI agents working the case forwarded copies of data retrieved from both Burum’s home and business office computers as well as from his cell phone to investigators with the San Bernardino County District Attorney’s Office for potential use in the already-filed state case against the four defendants. That data at that time had not been nor was it subsequently subjected to the relevancy examination protocol ordered by the court as the result of the challenges of the search warrants by Burum’s legal team.
Last September, when the district attorney’s office complied with discovery requirements by which it must turn over to the defense the materials it will rely upon in making its case in court, Burum’s team discovered that the district attorney’s office had a computer disk containing unredacted data obtained from the search of Burum’s home, office and phone.
On September 27, 2013, the lead attorney  representing Burum, Stephen Larson, referenced the district attorney’s office’s possession of the data during a court appearance in the pending criminal case. The state court ordered the district attorney’s office to segregate and not review materials seized during the searches of Burum’s residence and office building pending resolution of Larson’s objection to the provision of material to the district attorney’s office. Larson then contacted the U.S. Attorney’s Office and asked whether any additional data subject to the special master order had been provided to the district attorney’s office. The U.S. Attorney’s Office agreed to look into it. It was subsequently determined that the district attorney’s office had another disk containing forensic copies of data seized from Burum’s computers and communications devices. One of the district attorney’s office’s investigators claimed to the U.S. Attorney’s Office that the second disk in question had not been reviewed by his office.
On October 9, 2013, Larson met and conferred with the U.S. Attorney’s Office by means of a telephone conference regarding how to resolve the situation and on October 11, Larson followed that up with a letter raising various grievances regarding the government’s investigation and the FBI’s provision of the disks to the district attorney’s office.
On October 17, 2013, the U.S. Attorney’s Office responded to Larson’s letter, saying it intended to ask the district attorney’s office to return the disks and to delete the disk data.
On November 20, 2013, Larson filed on Burum’s behalf a motion in federal court for the return of Burum’s property.
On January 13, the U..S Attorney’s Office filed a motion in response, opposing the return of Burum’s property. Without conceding that any errors had been made, Assistant U.S. Attorney Joseph Widman in the government’s motion in opposition asserted that there was some confusion over whether the order by the federal court for a speedy [i.e., 60 day, later extended to 120 day] review of the seized materials pertained to the material seized from Burum and his premises or just that data and items seized from the other targets specified in the search warrants served in September 2011. Those targets included Biane; Erwin; Kirk; former state Senator Jim Brulte, who had served as a consultant to the Colonies Partners during the effort to settle the lawsuit with the county; materials obtained from public relations specialist Patrick O’Reilly, who had prepared the mailers containing the derogatory information relating to Postmus and Biane in 2006; and the phone records of former Superior Court Judge Peter Norell, before whom the Colonies lawsuit against the county had been heard.
Widman in his motion asserted that “the [federal] government’s handling of the digital data in question was and continues to be responsible and reasonable” and he pointed out that a federal judge had earlier expressed the opinion that it would be up to the judge hearing the state case against the defendants to determine whether the materials seized by the FBI in its search could or could not be used in that prosecution.
In his motion, Widman made two revelatory disclosures, the first one coming in the motion’s first paragraph, in which he let on that the federal government will not pursue a prosecution against the defendants in the state case.  “The federal statute of limitations on the charges the government was investigating has expired without the filing of federal charges,” Widman wrote.
The second disclosure hinted at some level of defiance on the part of the district attorney’s office with regard to the U.S. Attorney’s Office’s effort to recover the disks containing the data gleaned from Burum’s home and office computers and his communications devices.
“The government asked the district attorney’s office to return the disks; the district attorney’s office declined to do so,” Widman stated in the January 13 motion. “The district attorney’s office asked the government to refrain from deleting the disk data, since its status had not been ruled upon in the pending criminal case. On November 1, 2013, the government informed movant [i.e., Larson and Burum] that it intended to abide by the district attorney’s office’s request and not voluntarily destroy the disk data. To date, the district attorney’s office has not returned the disks to the government.”
On January  17, in a reply to the governments opposition to the motion for the return of Burum’s property, Larson took the U.S. Attorney’s Office, the FBI and the district attorney’s office to task for what he characterized as multiple violations of a court order, along with the filing of false statements and documents with the court, and a cover-up.
Larson, as a former federal judge, speaks with a degree of authority beyond that reserved for other members of the bar.
“The government’s opposition makes clear that it violated this court’s order when it reviewed the digital data seized pursuant to the search warrants, and that it then submitted false and misleading declarations to cover-up its violations,” Larson asserted in the January 17 court filing. “The government also admits that its investigation has been closed for more than a year and a half, and its conduct reveals that it was merely acting as a stalking horse for its state counterparts who are – and have been throughout this investigation – members of a joint federal and state task force.”
According to Larson, the U.S. Attorney’s Office and the FBI were boldly disrespecting the court.
“The government concedes that it did not follow this court’s order when it failed to determine what data fell within the scope of the warrants, failed to provide that data to Mr. Burum’s  counsel for a privilege review, and failed to await a final determination by the special master prior to using the data,” Larson told the court. “The government’s  silence regarding the review of the digital data seized from Mr. Burum’s office is deafening . The government failed to provide any declaration that data seized from Mr. Burum’s office was reviewed at all, either for privilege or scope.”
The U.S. Attorney’s Office has used specious and disingenuous reasoning in justifying its action and that of the FBI, Larson asserted.
“The government’s argument that the court order did not specifically prohibit it from sharing the data with state prosecutors is a red herring,” Larson wrote. “The issue here is the government’s blatant violations of the court’s order regarding the review of data for privilege and the warrants’ protocols for examining the seized data. At no time did the court countenance the wholesale production of unfiltered digital data to state prosecutors. Rather, the court noted that it was not considering the issue at that time because such sharing had not occurred. Certainly there is no evidence that the court even considered whether it would be appropriate for the government to share the data without first subjecting the data to the court’s privilege review procedures and well-established scope protocols. Moreover, the government’s current position on this issue is belied by its initial request to state prosecutors to return the materials.”
Larson continued, “The government was required to search the digital data within 120 days to determine what data fell within the scope of the warrants, and to then delete or destroy any data falling outside the scope of the warrants.  The government now admits that it failed to search the digital data within this time limitation. In an attempt to justify this failure, the government argues that the search of the digital data from Mr. Burum’s home and office were not subject to the 120 day deadline. The government also contends that the order did not set any deadlines or time periods within which the government must send movant [i.e., Burum and his legal team] a copy of the materials deemed subject to seizure.”
By failing to return the seized data to Burum and instead keeping it, the U.S. Attorney’s Office has openly defied the court, abused Burum’s constitutional rights and set the table for what is tantamount to a conspiracy involving the San Bernardino County District Attorney’s Office, Larson said.
“The government also admits that it did not timely delete the digital data,” Larson wrote. “The government began deleting certain secondary archives on January l3, 2014 – but only after Mr. Burum filed his recent motion, after it requested an extension of time to file its opposition, over 18 months after the investigation was closed, and almost two years after the data should have been deleted. The government’s misleading characterization of the status of the data and its adherence to search protocols is further evidence of its callous disregard for Mr. Burum’s constitutional rights. In another glaring admission, the government failed to provide a clear accounting of what is being deleted and when such deletions will be completed. The government concedes that data falling outside the scope of the warrants should have been and must be deleted. The government nonetheless admits to retaining copies of all the digital data seized from Mr. Burum’s home and business in perpetuity at the request of its state task force counterparts.  As set forth above, the government has demonstrated callous disregard for Mr. Burum’s constitutional rights. Mr. Burum also has an interest in the return or destruction of his seized property so that he can vindicate his constitutional right to unwarranted search and seizure. He is irreparably harmed by the unprotected data remaining with the government and state prosecutors in violation of the court’s order and the specific protocols governing the search and destruction of the digital data. The government also acknowledges that Mr. Burum ‘appears to lack a remedy at law,’ but suggest that he take it up with the state court. A federal court order requiring the return of the data by the state prosecutors and destruction of all seized data is the appropriate remedy here: This matter involves a federal  search warrant, obtained and executed by federal agencies working as part of a joint task force and under the supervision of federal prosecutors, and is subject to protocols ordered by this federal court. Finally, the government has acknowledged that the federal investigation is closed, and thus it has no basis to retain any of the seized data or to deliver the data to its joint task force members. In short, the federal agencies have acted as part of a joint task force with state law enforcement agencies, executed search warrants after the state prosecutors initially lost most of their case on demurrer, and then provided wholesale digital data to the state prosecutors in violation of the plain language of the court’s orders, the search warrants, and Mr. Burum’s constitutional rights. The appropriate remedy, based on the government’s conduct, is to order the return and destruction of the digital data seized from Mr. Burum’s home and business.”
Larson’s  petition was to the federal court. It presages, reliable sources have told the Sentinel, motions that will be forthcoming in state court alleging prosecutorial misconduct against the DA’s office and the California Attorney General’s Office, who are jointly prosecuting Burum, Biane, Erwin and Kirk.

(January 21)  Yet another lawsuit brought by attorney Cory Briggs against the city of Chino and one of the project proponents to which it had given an entitlement to build has been settled on terms Briggs hailed as a victory.
Briggs, representing the Inland Oversight Committee and Citizens for Responsible Equitable Environmental Development, named Chino and Majestic Realty Company as defendants in a lawsuit which cited environmental concerns at the  Chino Gateway Project Majestic intends to develop on unused grounds owned by the state and recorded on maps as within the footprint of the  California Institution for Men. Majestic is leasing the land, totaling 156 acres, from the state and will erect two separate 1.44 million square foot warehouses, a smaller 180,000 square foot warehouse and 46,600 square feet of retail and commercial space.
One of the issues raised in the suit was the manner in which the project had been approved by the city, bypassing a full-blown environmental impact report and substituting what amounted to a negative declaration of unmitigateable environmental impacts by the city council, which consented to amending its general plan environmental impact report where it was out of synchronicity with the project.
Under an arrangement worked out by Briggs and lawyers for Majestic, Majestic has agreed to adjusting the traffic circulation element of the development to reduce nearby impacts. In addition, Majestic is to install, at its own cost, photovoltaic generating equipment at and on the warehouses rated to generate 1.6 million kilowatt hours of power per year, enough to provide 110 percent of the power requirements for operation of the warehouses and the adjoining retail project. Majestic consented to picking up $18,920 of the legal costs the Inland Oversight Committee and Citizens for Responsible Equitable Environmental Development had accrued with Briggs. Briggs agreed to terminate the suit against all parties, including the city.
Briggs has emerged victorious from two previous suits that named the city of Chino and currently has four further cases pending against it.

(January 20)  The field of candidates vying to succeed former 23rd District State Senator Bill Emmerson, who resigned his position in the state legislature on December 1, thinned out in the last fortnight, with Yucaipa Valley Water District Board Member Lonni Granlund and Menifee Mayor Scott Mann pulling the plugs on their candidacies.
Campaign funding, or the lack thereof, appeared to have been a major factor in both Granlund’s and Mann’s decisions.
A suppressed note of bitterness crept into Granlund’s announcement of her withdrawal, which appeared to be vectored at state Republican Party members who initially promised or at least indicated a fair amount of campaign cash would be provided to make her candidacy viable. So far, the race has been seen as falling to Assemblyman Mike Morrell, who has used his incumbency and access to the GOP establishment to distinguish himself as the best-funded and most viable of the candidates in the race. The 23rd Senatorial District has voter registration levels highly favorable to Republicans.
“After giving careful consideration about continuing my campaign for the 23rd State Senate District to replace Sen. Bill Emmerson, I have made the decision to terminate my campaign effective immediately,” Granlund said. “When I was asked to run for the State Senate I was led to believe that substantial resources would be committed from Sacramento for my campaign. The prevailing sentiment was that the field of candidates was unimpressive and unable to tackle the state’s anti-business philosophy. As a businesswoman I was viewed as someone with the skills to make a difference, but that’s not enough in Sacramento. My friends, family and supporters generously stepped up to help reach the goals set for a viable campaign. Unfortunately the funding from Sacramento simply did not materialize.”
She continued, “As a long-time member of the community, I faced the challenge of running a severely under-funded campaign, which would ultimately waste my supports (sic) hard earned money. I value my friendships and integrity too much to waste the hard earned money of my friends and family. I have seen candidates in the past continue to take their friends and supporters (sic) money knowing full well that their success was unlikely. That’s not something I am willing to do. As much as I would love to serve the people of the 23rd State Senate District, I cannot in good conscious (sic) continue in an underfunded campaign that has little or no possibility of success. At the very least I owe it to my supporters to have the integrity to admit the facts and return their generous contributions, and I will.”
Despite her withdrawal, Granlund was in no mood to endorse Morrell or any of the other currently declared candidates and she suggested that others should take up the burden of keeping Morrell from advancing to the legislature’s upper chamber. “Hopefully this announcement will be timely enough that other candidates might have the opportunity to file for the seat,” she said.
Menifee Mayor Scott Mann’s exodus from the campaign came hot on the heels of the California Fair Political Practices Commission’s leveling of a fine/administrative penalty of $1,500 against him for his  failure to disclose non-monetary contributions during his 2012 campaign for office. According to the FPPC, Mann and the Scott Mann for Mayor campaign received non-monetary contributions totaling $982.25 on or about June 14-30, 2012, from the Menifee Taxpayers Association.
Mann acknowledged  that his mayoral campaign committee was cited for not disclosing receipt of non-monetary Menifee Taxpayers Association  expenditures totaling $982.25 for advertising materials, but he said the FPPC had failed to substantiate any of the original allegations made against him, including reports relating to the use of surplus funds from his original council campaign to run for school board; failure to itemize expenditures by his school board committee; and that the Menifee Taxpayers Association  was controlling the Scott Mann for Menifee Mayor 2012 committee.  He then withdrew from the race, leaving Morell, Calimesa Councilman Chris Hewitt and San Jacinto Council Member Crystal Ruiz as the only remaining announced candidates in the Republican-leaning district, which spans portions of San Bernardino and Riverside counties.

(January 21)  Tim Donnelly’s Quixotic effort to capture the Republican nomination for California governor achieved an unexpected and equally unorthodox boost when one of his celebrity endorsers came under such heavy protest for her support of Donnelly that she was obliged to resign as the member of the cast of a popular play production.
There was resultant news coverage and widespread publicity for Donnelly’s campaign up and down the Golden State.
Maria Conchita Alonso, a top model turned recording star from Venezuela who transitioned into starring roles in movies such as “The Running Man, “Moscow on the Hudson,” and “Predator 2” had been cast in a leading role in the Spanish-language production of the Vagina Monologues, which was to begin its run in San Francisco next month.
Last week marked the debut of one of a series of online videos intended to promote Donnelly’s gubernatorial campaign. The tongue-in-cheek video spot featured the Cuban-born Alonso, who was Miss Teenager of the World in 1971 and the representative of Venezuela in 1975 Miss World Pageant at which she was sixth runner-up, appearing with her pet Chihuahua and standing next to cowboy hat-wearing Donnelly, translating Donnelly’s remarks with regard to politics into Spanish, sometimes accurately, sometimes by means of humorous paraphrase.
Throughout most of the three minute and 13 second-long video, Alonzo registers approval of Donnelly’s message, although at one point in the presentation she begs to differ with him. When Donnelly expresses the view that the state’s ban on lead ammunition is a “cowardly” ploy to outlaw hunting, Alonzo asserts that she disagrees with Donnelly on that point.”No, I do not like hunting,” she says in Spanish. “I hate that animals suffer. I am their voice. I love them. I protect them. I would give my life for them. No. Uh-Uh. We have to talk afterword about this.”
For the most part Alonzo reinforces Donnelly’s assertions with body language and approving facial expressions and nods, or puts a comic emphasis on his presentation, as when he intones “Politicians and big government are killing our prosperity. They’re driving business out of our state, pushing welfare costs through the roof and driving our schools into the ground.”
Alonso, solemnly translates these remarks by saying in Spanish “We’re screwed.”
The video draws to a close with Alonzo accurately interpreting Donnelly’s exclamation that “We live in the greatest state in the union and we the people will never be divided. If you honor me with your support, I will lead California back to prosperity, so help me God.”
Alonzo’s support of Donnelly, who touts himself as a conservative Republican as well as Tea Party member and anti-illegal immigration activist who is the chairman of a chapter of the so-called Minuteman border-patrol movement, in short order triggered a round of protest from a number of groups, resulted in a backlash aimed at her. Some vocal opponents of Donnelly, the Tea Party and the Minutemen threatened to both boycott and protest the play when it opens next month.
Alonso is now a naturalized American citizen and has made a series of public statements condemning what she derides as a left-leaning trend in American politics. She is an outspoken critic of Fidel Castro and the government in Cuba and was equally deprecating of the late Venezuelan leader Hugo Chavez.
In 2008,  she endorsed the presidential campaign of John McCain, She suggested Barack Obama is a “socialist” who is engaged in “spread the wealth economic policies.”
During the 2012 presidential campaign season, Alonso reiterated her opposition to Obama, suggesting he was ushering the United States onto a track emulating Venezuela under the Chávez regime.
“I don’t want the government to be involved in my life,” she said, sounding much of the same libertarian theme that Donnelly has embraced.
Donnelly, who has unabashedly espoused right wing causes, has developed a reputation as an extremist in some political and social circles. He cemented this reputation with his outspokenness with regard to Second Amendment issues and then lived into the persona he had constructed for himself by being arrested  on  January 4, 2012, for attempting to carry a loaded Colt handgun while boarding  an airplane. Transportation Safety Agency security screeners discovered the gun in his carry-on luggage.
Though Donnelly agreed to a plea bargain in which he accepted conviction on a single count of carrying a loaded firearm into a city without a concealed weapons permit and another count of possessing a prohibited item in a sterile area, both misdemeanors, he was not forced to leave the Assembly and he remained unapologetic, continuing to bring a concealed weapon into the Capitol and onto the Assembly Floor, action which even some of his political associates and supporters found alarming.
Last year he surprised many when he gave indication that he would not seek reelection to the Assembly in 2014 and would instead seek the Republican nomination to challenge Governor Jerry Brown.  Even the prospect of achieving the GOP nomination appeared to be questionable, as Abel Maldonado, the state’s former lieutenant governor, described as a political moderate, was also vying for the nomination. Maldonado withdrew last week, but Neel Kashkari, a Goldman Sachs executive who as the former deputy U.S. Treasurer overseeing the Troubled Asset Relief Program during the final year of George Bush’s presidency in 2008 and 2009, has now declared his candidacy for governor. As the architect of the nation’s bank bailout during the most critical phase of the recession that began in 2007, Kashkari believes he can weather charges that he headed a program that bailed out the wealthy at the expense of taxpayers and focus attention on his fiscal management talent, which he said gives him a leg up on Brown when it comes to rejuvenating California’s sluggish economy. Brown, a Democrat, enjoys a tremendous political advantage over Republicans, as nearly half of the state’s voters are registered Democrats and only 31 percent align themselves with the GOP. That advantage is reflected in the state legislature, where the number of Democrats in both the Assembly and State Senate have rendered Republican parliamentarily irrelevant.
Donnelly is not only the longest of longshots with regard to ousting Brown from the Governor’s Mansion, he faces an uphill battle in getting past Kashkari, who, though he has never held elective office, will be able to call upon Republican donors from around the country and tap into the generosity of major players in the banking industry whom he assisted when hew as assistant deputy U.S. Treasurer.
Nevertheless, with the flap over Alonzo’s endorsement coinciding with Kashkari’s announcement, Donnelly appears to have serendipitously tapped into publicity that will promote his candidacy with the most conservative element of the Republican Party at a crucial juncture.
Alonzo, who is a veteran guest star on many television shows including Chicago Hope, the Nanny, Fantasy Island, Knight Rider, CSI Miami, Desperate Housewives and had a major part in the television remake of High Noon, was philosophical about having to back out of the role in the Vagina Monologues. The loss of the role does not leave her without work as she is currently engaged in shooting on a yet untitled project by director/producer Matt Riddlehoover.
Incidental to her threatened-boycott-induced withdrawal is the attention being brought to Donnelly and his campaign. While he is a moderately well recognized figure in San Bernardino County, Donnelly’s has a relatively low profile for a politician with gubernatorial ambitions, his only claim to notoriety stemming from his firearm arrest.

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Sentinel 01-17-14

(January 15)  The state of California has struck back at the city of Twentynine Palms’ cutting edge effort to preserve bond proceeds issued by its former redevelopment agency.
In 2011, the state legislature at Governor Jerry Brown’s behest passed Assembly Bills XI 26 and XI 27, two redevelopment agency shuttering laws which closed out all municipal and county redevelopment efforts statewide. A coalition of cities fought the law, but the state Supreme Court upheld the measure.
While 317 of the state’s 482 incorporated cities went along with the new law without question and shut down their redevelopment agencies, 165 cities have resisted the state on the issue. That resistance ranged  from registering relatively mild protests to filing lawsuits against the state and its Department of Finance, which is the entity designated under the law to make a determination with regard to how the money that was in the possession of the former redevelopment agencies is to be disbursed.
Twentynine Palms, led by its city attorney A. Patrick Muñoz of the law firm Ruttan & Tucker, has been the most aggressive of San Bernardino County’s 24 cities in disputing the state’s action in confiscating redevelopment money and then redistributing it to other local taxing agencies or using it for education or public safety purposes.
At stake in the matter for Twentynine Palms, a city of 25,048 in San Bernardino County’s Mojave Desert outback,  are two tax allocation bonds issued for a total of $8.5 million. Those bonds were intended to defray the cost of Project Phoenix, a downtown revitalization which is to include a community center, a 250-seat theater, classrooms, a civic plaza, a park, a paseo, residential units, a wastewater treatment plant, and improvements to the downtown fire station. The last of the bonds were issued three months before  AB X1 26 and AB X1 27 passed and went into effect.
Based on an analysis by Muñoz, the Twentynine Palms City Council publicly asserted that that AB X1 26 and AB X1 27 are trumped by federal securities regulations, meaning the money the Twentynine Palms Redevelopment Agency bonded for in 2011 must be utilized only for the purpose that bondholders were told the money would be applied toward.
The city followed Muñoz’s recommendation to have the successor agency to the redevelopment agency lay claim to the redevelopment money and declare its intent to proceed with Project Phoenix.  AB X1 26 and AB X1 27 provided for the creation of locally based oversight boards to direct the discharging of remaining redevelopment money.  In  May 2012, Muñoz drafted a contract between the successor agency and the city by which the  successor agency turned over the bond spending authority to the city with a directive that it go toward Project Phoenix. On a 4-1 vote on May 22, 2012 the city council voted unanimously to transfer the seven-member oversight board’s duties and obligations to administer the bond proceeds to “the city in its capacity as a municipal corporation.”
To reinforce that action, on February 26, 2013, the city council authorized Muñoz to file litigation against the Department of Finance so the city could move forward with the expenditure of the bond proceeds. The city took the position that the bond documents are contracts that created specific obligations between the city, as the issuer, and the bond purchasers, and as such are enforceable obligations such that the state cannot interfere with them. Moreover, according to Munoz, the city would be violating IRS and SEC regulations as well as put the tax exempt status of the bonds in jeopardy if it does not spend the money for the purpose for which the bonds were issued.
AB X1 26 and AB X1 27 contained a provision requiring any municipalities that contested the law to do so in Sacramento Superior Court.  The California Department of Finance is being represented by the California Attorney General’s Office’s civil division in the case. On December 23, the California Attorney General’s Office laid out an answer to Twentynine Palms’ legal action preparatory to an upcoming January 24 hearing on the matter.
According to deputy attorney general Michael Witmer, $12 million of the tax allocation bonds issued by the city – offered to bondholders in March 2011 – while earmarked for Project Phoenix, contained no concomitant contracts to build anything or a defined plan of how the bond proceeds were to be expended.
Witmer maintains the assertion by Muñoz and a consultant working for the city in the capacity of community development director, Matt McCleary, that Project Phoenix disbursements could be placed on the phased out redevelopment agency’s recognized obligations payment schedules runs contrary to instructions from the California Department of Finance that the project was not to be listed on the payment schedule.
Witmer told the court that the transferring of bond authority from the successor agency to the city was an illegal ruse and had to be rescinded. He further brought into question the escalating cost of the project, noting that it was originally cast as a $750,000 effort under a different name, the “Split Rock Housing Project,” first noted in the Twentynine Palms Redevelopment Agency’s five-year plan in 2009. It drew to itself other facets over the next two years, including a $3 million bump for affordable housing and then another $2.5 million increase until it was listed as representing an $8.5 million undertaking
“[A]s contemplated in the five-year plan, Project Phoenix and the Split Rock housing development only needed $2.5 million,” Witmer told the court. “Even with all of the other projects listed in the five-year plan included, the aggregate added up to less than $5 million.”
In early 2011, Witmer said, the city openly defied the spirit of the anticipated new law, saying  “the city worked feverishly to expand Project Phoenix to utilize the funds it had obtained by issuing bonds” and after AB X1 26 and AB X1 27 were signed into law by Governor Brown, broke the law outright on May 22, 2012  when it “entered into an agreement with itself” to transfer the money from the successor agency “for the express purpose of circumventing the Department of Finance’s disapproval of Project Phoenix as a recognized obligation payment schedule item.”
Upon McCleary’s representation that California Department of Finance Budget Manager Matt Hill had stated that the city could assume the authority of the successor agency if the oversight board approved such a transfer, the oversight board unanimously approved the switch.
According to Witmer, this was done “surreptitiously” in that the transfer of bond proceeds to the city had been done without consultation with the California Department of Finance or its approval. “[T]he city/successor agency went ahead and caused the bond trustee — U.S. Bank — to pay over the funds to the city-as-city,” Witmer writes. The California Department of Finance remained in the dark about the illegal transference of bond proceeds for nearly six months, Witmer claimed. A month later, in December 2012, the California Department of Finance directed the city to reverse the transaction, according to Witmer. While Witmer maintained the California Department of Finance consistently declined the city’s moves to leave payments toward the Phoenix Project bonds on the recognized obligations payment schedule because they did not qualify as enforceable obligations, Muñoz and McCleary insist the California Department of Finance was twice told about the switch and the city was given no instructions by the department to undo the transfer.
Witmer asserts the bond payments are not enforceable obligations because the bond documents do not specify the completion of the Project Phoenix or Split Rock projects. And because the contracts for the projects were entered into after AB X1 26 and AB X1 27 went into effect on June 28, 2011, Witmer maintains the city’s intended use of the bonds is prohibited.
Muñoz, bond counsel, disclosure counsel and the city outsmarted themselves by putting wiggle room in the language of the bond documents that was meant to protect the city and redevelopment agency from being sued by the bondholders if the city did not proceed with the completion of the bonded-for improvements, Witmer maintains. Those clauses render the bonds unenforceable obligations, he suggested, as does other language in the bond documents warning investors of the pending redevelopment agency shuttering laws – AB X1 26 and AB X1 27 – that would compromise the city’s ability to proceed with redevelopment projects.
Moreover, Witmer said the city had missteped when it did not include representatives of other taxing entities that had previously been beneficiaries of money disbursed by the redevelopment agency  such as the Morongo Unified School District, the Hi-Desert Memorial Healthcare District and Copper Mountain College on the oversight board.
Witmer said the city had manipulated, misled and made patsies out of the oversight board.
“[I]t appears that the successor agency may not have given the oversight board accurate information in connection with key decisions,” Witner told the court.

(January 14)  The county of San Bernardino’s legal costs precipitated by its 2012 acquiescence in the Santa Margarita Water District’s approval of the so-called Cadiz Valley Water Conservation, Recovery and Storage Project last year have now exceeded $1.8 million.
Eleven separate lawsuits challenging the  Cadiz Valley water project, which upon completion will extract an average of 50,000 acre-feet of water from the East Mojave Desert annually and convey it via pipeline to Orange and Los Angeles counties for use there, have been filed in San Bernardino County, Orange County and in U.S. District Court.
The lawsuits allege that the project will drain the aquifer in both the Cadiz Valley and nearby Fenner Valley, wreaking environmental harm, that the approval process for the project which allowed a water district in Orange County more than 217 miles from the  project area to serve as the lead agency for the project and oversee its environmental certification violated state and federal environmental laws, that the county of San Bernardino failed to abide by its own desert groundwater management plan in approving the project, that the environmental impact report for the project was inadequate,  that approval of the project violated provisions of both the National Historic Preservation Act and the Federal Land Policy and Management Act,  that the Bureau of Land Management failed to conduct a proper review of the cultural and environmental impacts of the project; that the extraction of the water will interfere with salt mining and other pre-existing industrial operations in the area, and other issues.
Plaintiffs included Delaware Tetra Technologies, which operates a salt and mineral mine in the Fenner Valley, the Center for Biological Diversity, the National Audubon Society, the Sierra Club, the International Union of North America Local No. 783, the National Parks Conservation Association, the Colorado River Branch of the Archaeological Heritage Association, Santa Margarita Citizens and Ratepayers Opposing Water Nonsense, and Rodrigo Briones.
The project is an undertaking of Los Angeles-based Cadiz, Inc., which since the 1980s has operated a 500-acre organic grape, citrus, melon and pepper farm in the Cadiz Valley. Cadiz, Inc. arranged to have the Santa Margarita Water District, to which it is contracted to deliver a portion of the water to be extracted from the desert, to assume lead agency status for the project’s approval. Many of those opposed to the project considered that to be a conflict of interest. San Bernardino County contemplated, but in March 2012 ultimately elected against, challenging Orange County-based Santa Margarita’s assumption of that lead agency status on the project and instead on May 1, 2012 entered into a memorandum of understanding with that district and Cadiz, Inc. and its corporate entities, including the Fenner Valley Mutual Water Company, allowing Santa Margarita to oversee the environmental impact report for the project and conduct the public hearings related to project approval.
On July 31, 2012, the Santa Margarita Water District Board of Directors approved the Cadiz Water Project and certified the environmental impact report for the Cadiz Water project.
On October 1, 2012, the San Bernardino County Board of Supervisors gave approval to a groundwater monitoring plan to facilitate completion of the project.
The project generated a flurry of lawsuits in which San Bernardino County, Santa Margarita and Cadiz, Inc. have been named as defendants. Even before those lawsuits materialized, the county, on March 27, 2012, retained the San Francisco-based law firm of Downey Brand to assist county counsel in responding to any lawsuits it contemplated might be triggered by the project at what was then said to be a not-to-exceed cost of $449,322. Within four months, however, those funds had been exhausted and on July 24, 2012, the board authorized a $250,000 amendment to the Downey Brand contract, increasing the amount to $699,332.  Legal billings to the county by Downey Brand ate up that funding by December 2012, and Christine Kelly, who was then county land use services director, asked the board to give approval for the expenditure of another $250,000 to cover continuing legal costs, pushing the Downey Brand contract to $949,332. Downey Brand’s total billing to the county exceeded the million dollar mark before 2013 was half over and on June 18 the board of supervisors complied with a request by Tom Hudson, who succeeded Kelly as the county director of land use services, to increase the contract with Downey Brand by $500,000 from $949,332 to $1,449,332. This week, nearly seven months later,  Hudson called upon the board of supervisors to “increase the existing contract with Downey
Brand LLP for legal services by $400,000, from $1,449,332 to $1,849,332.”
Hudson told the supervisors Downey Brand’s services are needed “as a result of on-going legal challenges relating to the 2012 Groundwater Management, Monitoring and Mitigation Plan and the memorandum of understanding by and among the Santa Margarita Water District, Cadiz, Inc., the Fenner Valley Mutual Water Company and the county.”
The county finds itself pressured inside and outside the courts for having relinquished oversight over the project to the Santa Margarita Water District, which approved the environmental impact report for the project, despite data provided by biologists and hydrologists contradicting that report. Among those inveighing against the project is U.S. Senator Dianne Feinstein, who has publicly stated that the project’s proposed extraction of more than one million acre-feet of water from the Eastern Mojave Desert over the 50-year life of the project will significantly exceed the United States Geological Survey’s estimate of the area’s recharge capability.
Environmentalists insist Cadiz has cynically overrepresented the amount of annual precipitation recharging the groundwater basins in the Cadiz and Fenner valleys, and that springs linked to those ground water basins within the Mojave National Preserve and the plants and animals that depend on them are thus under threat.
Among those condemning the county’s approval of the project is John Goss, a former assistant administrative officer with San Bernardino County who drafted the county’s desert groundwater management ordinance before it was adopted in 2002. Goss said that ordinance was violated when the memorandum of understanding between the county, Cadiz, Inc. and the Santa Margarita Water District had been entered into before a groundwater management plan for the Cadiz project was adopted.
A prime mover in the county’s acquiescence in Santa Margarita’s approval of the project was former First District Supervisor Brad Mitzelfelt, who left office after he did not run for reelection in 2012 when he instead unsuccessfully vied for Congress. Mitzelfelt, whose district included the Eastern Mojave, received $48,100 in political donations from Cadiz, Inc.
The project’s proponents, including Scott Slater, the general counsel for Cadiz, Inc., insists the project is a “responsible and environmentally safe” one that “protects the desert” and provides thirsty Southern California with “an innovative water supply option.”
County officials maintain the county’s taxpayers are not being hurt by the litigation.
In keeping with Section 24 of the memorandum of understanding and the conditions of approval adopted on October 1, 2012, the county is indemnified against any action challenging the county’s approval of the
Cadiz Project, Groundwater Monitoring Management and Mitigation Plan or the memoranducm of understanding,” Hudson said. “The indemnity includes, but is not limited to, damages, cost of suit, attorneys’ fees, expert consultant or witness fees, and other expenses incurred in connection with any such action. To date, the county has been reimbursed by the Santa Margarita Water District, Cadiz, Inc., and the Fenner Valley Mutual Water Company in the amount of $1,301,726.”
The county’s legal costs growing out of the Cadiz Water Project are now mounting. While two of those lawsuits have been litigated to completion or have been dropped, nine remain active and proceeded to trial on December 3, 2013.
An issue in the lawsuit brought by Santa Margarita Citizens and Ratepayers Opposing Water Nonsense pertains to the Santa Margarita Water District’s assumption of the financial liability of other parties involved with the project approval. Opponents of the project have questioned whether Cadiz, Inc., an agricultural and landholding company that owns or has options to buy 45,000 acres in the eastern Mojave Desert overlying the Cadiz and Fenner valleys’ aquifers but which has nonetheless not shown a profit for more than 15 years, will be able to sustain itself in the face of the legal challenges to the project. Those inveighing against the project not on environmental grounds but financial ones have questioned who will assume the company’s liabilities if it folds or declares bankruptcy.

(January 15)  UPLAND—For the second time in the last 11 months, Upland municipal officials bulldozed a homeless encampment, scattering several score of those who were living there to other locations within and outside the City of Gracious Living.
Close to 100 people had settled into a location in the 2100 block of 11th Street at what is the city’s farthest west extension, just east of the city limits separating the city from Claremont at the San Bernardino County/Los Angeles County line.
Several of those dislocated from the makeshift neighborhood said they had been encouraged to move there by Upland police officers and Upland Mayor Raymond Musser after the city had in late February 2013 used its code enforcement division to encourage the owners of vacant property along Route 66 between Benson and Central avenues – i.e.,the 1700 to 1900 block of Foothill Boulevard – to bulldoze an approximately 40-acre patch of dense chaparral and undeveloped property that had been a haven for dozens of homeless.
The property that was cleared of its denizens this week, which dead ends at a fenced large gravel wash separating Upland from Claremont, has no clear owner and is shown as an encumbered asset per an ongoing bankruptcy proceeding. The site is one block south of Route 66, the scene of a similar unfortunate migration of the poor and hungry during the Great Depression described in the novel by John Steinbeck “Grapes of Wrath.”
With no owner to register a complaint about the uninvited habitants, many had lived there virtually unmolested for the last nine months.
Asserting that neighboring businesses and property owners had complained about the presence of homeless on the vacant property south of 11th Street and west of Central Avenue, officials went to court last week seeking a temporary restraining and obtained a court order on January 9, allowing them to give those encamped there a 72-hour notice to remove themselves and their belongings. Notice of the order was served immediately.
Police returned on January 13, informing those remaining that they had to vacate the premises by 2:45 p.m. Monday upon pain of their items being destroyed by a bulldozer. That time deadline elapsed but at 7 a.m. on January 14, four police officers and four city maintenance workers arrived, armed with two huge trash bins and bulldozers. Some of the more nimble squatters managed to drag their belongings – bicycles, blankets, clothes, sleeping bags, baby strollers and other wheeled carriers and in some case bicycles – onto the sidewalk as the bulldozers chortled to life and moved into place to begin clearing the lot.
Showing they meant business, city employees utilized the bulldozers to demolish the entirety of the encampment, using the front scoops of Caterpillars to dig into what had been people’s abodes, collecting up sleeping bags, blankets, tents, folding chairs and other items, then emptying them into the dumpsters.
Janine Batty, who had lived in the encampment north of Foothill and south of Cable Airport until last February, said she had moved to the 11th Street location after “the city of Upland bulldozed our other camp.  It was not weed abatement as they told everyone.  The mayor told us to come over here  [11th street].  We listened and obeyed.  I am a mother of four and a grandmother of four.  I am homeless as of October,   2012.  The city of Ontario took my home.   I am thankful for property that I am on [11th street].  We are blessed.  The church brings food for us.    Without a tent, I will get sick and die.  I cannot be in the sun.  I have a condition where I get real sick if I am in the sun.”
While the bulldozing was yet taking place, one of the encampment’s occupants told the Sentinel,   “Some nice folks gave me a tent that was probably worth about $2,000 when they bought it.  It was a good tent and I was living in it.  I rolled it up in a ball, but couldn’t carry it out myself.” She broke off her narrative and then said, “I wonder if the police will save it for me.?  I’m going to go down there and ask them.”  She then approached a group of police officers and city mainentance workers and asked them if they would set her tent aside for her. They refused and what had been her home was scooped up and discarded into one of the dumpsters. She merely shrugged her shoulders as she walked away,  shaking her head, a grimace of resigned hopelessness flashing across her face. Her male companion, laboring to keep all of his worldly possessions balanced on a  baby stroller hooked to a bike, was unable to assist her.
City officials said they had offered those displaced services, including having the San Bernardino County Department of Homeless Services visit the encampment on January 10 and 11 to see if any of those there might qualify for temporary housing or other forms of assistance, but on Tuesday morning most streamed in all directions away from the site, on their own.
Several of those who had been living at the encampment told the Sentinel that they had requested that city officials provide them with a dumpster months ago, when city officials had carried out an inspection of the property and asked how they could be of help. No dumpster was forthcoming until January 14, when the two giant trash bins were hauled in to serve as receptacles for the contents of the scoops of the fast acting bulldozers.
City officials have long been cognizant of the crude encampments that had proliferated in the field of chaparral just south of Cable Airport, where bedraggled shelters were begrudgingly tolerated. That property is and was owned by the Bongiovanni Corporation, with diverse holdings and a construction company empire that is focused elsewhere. The Bongiovanni family had for years made no effort to evict the uninvited settlers but was prompted to render the property less habitable last year when the city cited it for excessive vegetation. The use of bulldozers to clear the property resulted in the residents leaving, many or most of them to the 11th street location razed this week.
There was also a proliferation of homeless at Memorial Park. City officials, meaning the police, have grown increasingly more draconian with the people dwelling at that location in an effort to persuade them to leave. Many of those had migrated to the 11th Street lot, as well.
The issue had come to a head less than 24 hours before, at the January 13 city council meeting, where the council took up an emergency ordinance making it illegal to camp or store personal items in city streets or public places anywhere within the Upland City Limits. As an emergency ordinance, it became effective immediately upon passage. For good measure, the council also approved a non-emergency version of the same ordinance.
That night, the council chambers was flooded with people inveighing against the action the council was contemplating and the evictions of those subsisting at the 11th Street encampment that was to take place the next morning. The pleas to have the city council rethink its strategy for dealing with the homeless and either rescind or not enforce the court order did not persuade or dissuade the council from the action it ultimately took.
Michael Averkiou, a representative with the faith-based organization Calvary Chapel, requested that the council hold off on enforcing the restraining order for a month to give those being displaced an opportunity to save what meager possession they had and make an orderly transition.
“Why not give these people 30 days?” Averkiou asked. “Why does it have to be so abrupt?”
Averkiou asserted that giving the homeless the bum’s rush would likely result in creating a legal crisis. “They don’t have anywhere to go,” he said. “Any place they go, they are going to get cited.”
Steve Wade, an attorney who was formerly based in Upland who has since relocated his office in Claremont, said the action the city had initiated was unconstitutional and insensitive.
He called the city’s action heavy-handed and counterproductive to the goal of achieving a lasting and meaningful solution.
In remarks to the Sentinel prior to Monday’s meeting, Wade said he believed that property owners’ rights should be respected but that “I merely suggest that the manner in which it is being conducted, with encampments being bulldozed, along with all of the worldly possessions of the residents, is inhumane and illegal. The city…  has a responsibility to do this in a humane and orderly process, providing an alternate place for the residents, at least on a temporary basis  They are clearly the ‘least among us’ and deserving of our compassion and assistance, particularly for those willing to embrace a second chance.”
Upland City Attorney Kimberly Hall Barlow said the emergency ordinance is constitutional and will withstand any legal challenges, and that the city is on firm legal footing in making the evictions.

(January 14) The county board of supervisors this week approved plans and specifications for a quarter of a million dollar improvement to the Devore Animal Shelter.
According to Carl Alban, the director of the county’s architecture and engineering department, “The project budget of $250,000 is comprised of the following components: design costs of $20,000; project management and inspection costs of $23,000; security and electronics costs of $20,000; construction costs of $170,000; and a construction contingency of $17,000.”
The board of supervisors authorized the architecture and engineering department to solicit competitive bids for the Devore Animal Shelter Improvements Project located at 19777 Shelter Way in Devore.
According to Alban, “This project will achieve the goal of providing essential security improvements to mitigate continuing issues with property vandalism and theft at this facility. Over the past several years, a number of projects have been completed at the Devore Animal Shelter that include improving security for the facility; providing a secure parking area; installing a new standby generator system; providing new pet greeting and adoption areas; and making a number of much needed improvements to the administration and kennel buildings. The primary focus of this project is to increase security by adding access gates to the main road into the facility (Shelter Way) to mitigate multiple vandalism and thefts that have occurred at this facility over the past several years. If funding is available, the bid alternates include the completion of the remaining improvements to the administration and kennel buildings.”
A mandatory Pre-Bid Meeting for prospective bidders is scheduled to be conducted on January
30, 2014 at 10:00 a.m. at the Devore Animal Shelter located at 19777 Shelter Way in Devore.
The bid opening is scheduled for February 19, 2014 at 1:00 p.m. at  the architecture and engineering headquarters.
Plans and specifications are on file with the clerk of the board of supervisors.

(January 13)  Federal prosecutors will not pursue a criminal case against any of the defendants involved in the Colonies Lawsuit Settlement Public Corruption Prosecution that is proceeding in state court, according to a motion filed by the U.S. Attorney’s Office in U.S. District Court on January 13.
While Assistant U.S. Attorney Joseph Widman said in the motion that the federal government’s investigative and prosecutorial action with regard to defendants Jeff Burum, Jim Erwin, Paul Biane and Mark Kirk has concluded, he intimated that materials both relevant and irrelevant to the case that were seized during an FBI search of Burum’s home and office in September 2011 have been turned over to the district attorney’s office and remain in that agency’s possession despite a court order calling for privileged materials to be destroyed or returned to the defendants.
In February 2010, the California Attorney General’s Office and the San Bernardino County District Attorney’s Office filed conspiracy, extortion bribery and related charges against former San Bernardino County First District Supervisor Bill Postmus and former San Bernardino County Sheriff’s deputies union president Jim Erwin, claiming the November 2006 vote of the board of supervisors to confer on the Colonies Partners a $102 million payment to settle a lawsuit that company had brought in 2002 against the county over flood control issues at the Colonies at San Antonio residential  and Colonies Crossroads commercial subdivisions in northeast Upland was tainted by coercion, threats and bribery. Both Postmus and Erwin pleaded not guilty to those charges but in March Postmus pleaded guilty to all 14 charges in the indictment against him and another unrelated drug possession charge. In May 2011, after another grand jury was impaneled and Postmus appeared before it as the star witness, a superseding indictment was handed down renaming Erwin and naming Burum, Biane and Kirk.
Four months later, on September 15, 2011, after the federal government’s interest in the matter had been hinted at for more than a year, that interest was confirmed when the FBI served nine search warrants issued by United States Magistrate Judge Oswald Parada at various locations, including the premises of the four defendants.  Burum, whose office and home were searched, resulting in the removal of several of his computers and communications devices, on September 20 and October 3, 2011 filed motions with Parada seeking the return of digital devices which he said were critical to his businesses’ operations. Parada eventually agreed to have the devices and/or data essential to Burum’s business operations returned to him. On November 10, 2011, Parada held a hearing in which he heard arguments that the federal government had exhibited “callous disregard” for Burum’s rights in seizing his property, that the government’s action had irreparably harmed Burum, and that the government should return all of the property it had seized. Parada made a finding that despite misstatements by federal agents that had been previously filed by the court with regard to the matter, the government had not shown the “callous disregard” for Burum’s rights and that the government did not have to return to him the items it had seized from him. Parada did, however. accede to the appointment of a special master to determine which data and materials obtained in the searches was relevant to the case and could be permanently retained by the FBI and U.S. Attorney’s Office and which materials or data would ultimately need to be returned to Burum or destroyed.
The FBI assigned agents that were not working on the Colonies Partners case to review the materials as part of the special master process.
While Parada’s orders clearly specified that the FBI’s review of the relevancy of the materials seized at the seven locations other than Burum’s home and office had to be carried out first within 60 days and then 120 days after the FBI sought and obtained a 60-day extension, the FBI interpreted the 120-day review deadline as not applying to Burum’s materials that were to be reviewed by a special master.  While Burum’s materials were yet in the custody of the agents carrying out the relevancy review, on May 16, 2012, digitized copies of them and their data  were handed over to the San Bernardino County District Attorney’s Office.
Under the terms of the warrants themselves and Parada’s later orders, government officials were  to return any seized materials or data found to be irrelevant to the case  and “delete or destroy all forensic copies” of irrelevant materials or data.
On September 20, 2013, the district attorney’s office, as part of the discovery process in the state case pending against Burum and his co-defendants, handed over to Burum’s attorney, Stephen Larson, a disk containing forensic copies of materials seized from Burum. On September 27, 2013, Larson referenced the district attorney’s possession of that disk during a court appearance in the pending criminal case. The state court ordered the district attorney’s office to segregate and not review materials seized during the searches of Burum’s residence and office building pending resolution of Larson’s objection to the provision of material that was supposed to have been returned to Burum or otherwise destroyed being provided to the district attorney’s office. Larson then contacted the U.S. Attorney’s Office, referenced the district attorney’s Office’s production of the forensic copies that were by federal court order supposed to have been destroyed and asked whether any additional data subject to the special master order had been provided to the district attorney’s office. The U.S. Attorney’s Office agreed to look into it. It was subsequently determined that the district attorney’s Office had another disk containing forensic copies of data seized from Burum’s computers and communications devices. One of the district attorney’s office’s investigators claimed to the U.S. Attorney’s Office that the second disk in question had not been reviewed.
On October 9, 2013, Larson met and conferred with the U.S. Attorney’s Office by means of a telephone conference regarding how to resolve the situation and on October 11, Larson followed that up with a letter raising various grievances regarding the government’s investigation and the FBI’s provision of the disks to the district attorney’s office.
On October 17, 2013, the U.S. Attorney’s Office responded to Larson’s letter, saying it intended to ask the district attorney’s office to return the disks and to delete the disk data.
According to Widman, the district attorney’s office has defied that request.
“The government asked the district attorney’s office to return the disks; the district attorney’s office declined to do so,” Widman stated in his January 13 motion. “The district attorney’s office asked the government to refrain from deleting the disk data, since its status had not been ruled upon in the pending criminal case. On November 1, 2013, the government informed movant [i.e., Larson and Burum[ that it intended to abide by the district attorney’s office’s request and not voluntarily destroy the disk data. To date, the district attorney’s office has not returned the disks to the government.”
Widman’s January 13 motion came in response to a petition by Larson to the U.S. District Court in Riverside to have Burum’s property returned to him and the court’s orders regarding the special master to be amended accordingly.
While the revelation with regard to the district attorney’s office’s tenacious hold on the materials in question would suggest that the prosecution in the state case is taking a no-holds-barred approach to proceeding with the matter, Widman’s inclusion of notice that the U.S. Attorney’s Office will not be pursuing a prosecution against the Colonies Lawsuit Settlement Public Corruption Prosecution defendants was roundly hailed by the defendants and their supporters, and interpreted as a sign of weakness in the state’s case.
“The federal statute of limitations on the charges the government was investigating has expired without the filing of federal charges,” Widman stated in the motion.
Larson on Tuesday told the Sentinel “We think this is a big deal.  Both the U.S. Attorney (in paragraph one of the brief) and the FBI (in paragraph seven of Special Agent Jonathan Zeitlin’s declaration) publicly acknowledge for the first time that the federal investigation, which involved search warrants, federal grand jury testimony, interviews, extensive subpoenas and financial analysis, etc., is concluded with no charges being filed.”