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By Mark Gutglueck
sbcsentinel@yahoo.com
Republished from Friday, April 19, 2013

(April 19) The California Attorney General and San Bernardino County District Attorney have overstepped their prosecutorial authority and are engaging in “an impermissible charging scheme” in the pursuit of a bribery and conspiracy case against Rancho Cucamonga developer Jeff Burum and three former public officials, according to a defense brief filed with the Supreme Court on April 15.

Burum, along with former sheriff’s deputy union boss Jim Erwin, former county supervisor Paul Biane and Mark Kirk, who was chief of staff to supervisor Gary Ovitt, were named in a 29-count indictment returned in May 2011. Prosecutors alleged in that indictment that a 3-2 decision by the county board of supervisors in November 2006 to approve a $102 million settlement of the civil action brought against the county and its flood control division by the Colonies Partners over drainage issues at the Colonies at San Antonio residential and Colonies Crossroads commercial subdivisions in northeast Upland was tainted by extortion and bribery. That settlement was supported by Biane, Ovitt and former supervisor Bill Postmus. Burum, Erwin, Biane and Kirk were charged variously with conspiracy to commit a crime, bribery, conflict of interest, tax fraud, tax evasion, perjury, forgery, and aiding and abetting.

In short order, defense attorneys filed demurrer motions on behalf of the defendants, i.e., assertions that there were insufficiency’s in the charges. In August 2011, San Bernardino County Superior Court Judge Brian McCarville granted some but not all of those demurrers, dismissing five of the counts lodged against Burum, two of the counts Biane faced, two of the counts Erwin was charged with and one count pending against Kirk.u

The prosecution then appealed McCarville’s ruling to the appellate court to have the charges reinstated. Defense attorneys likewise filed petitions with the appellate court, arguing that all charges that had been tossed should have been dismissed and asserting that McCarville should have sustained more of the demurrers than he actually did.

After nearly a year of consideration, the 4th District Court of Appeal on October 31, 2012 in a 41-page decision written by Justice Art W. McKinster and joined by associate justices Betty Ann Richli and Douglas P. Miller, upheld McCarville’s dismissal of part of a conspiracy charge plus four other counts against Burum, and tossed out a conflict of interest charge against Burum. At the same time, the appellate justices restored some elements of the conspiracy charge along with an aiding and abetting charge against Burum.

Burum, one of the managing principals in the Colonies Partners, is considered the linchpin in the case, as he is the individual charged with bribing the others and all charges revolve around him. Establishing his guilt is seen as crucial to proceeding with the case against all of those indicted.

In December, the prosecution appealed the 4th District Court’s ruling to the California Supreme Court to have the bribery, conspiracy and related charges reestablished.

In March, supervising deputy attorney general Melissa Mandel filed a 43-page, 13,541-word opening brief with the California Supreme Court that described Burum as “a bribe offeror” who with Erwin “conspired to, and did, aid and abet the receipt of bribes by Postmus and Biane. Law, logic and public policy compel the conclusion that the prosecution should not be foreclosed from charging and proving that Burum conspired to and did aid and abet the receipt of bribes simply because he also offered the bribes.”

Mandel said McCarville and the 4th Appellate Court’s dismissal of conspiracy to aid and abet the receipt of bribes against Burum erroneously relied on a case, People vs. Clapp, which by extension held that a provider of bribes could be charged with the provision of bribes but could not simultaneously be charged with conspiring with the bribe taker to receive the bribes. “People v. Clapp should be overruled, because it erroneously holds that a person cannot be an accomplice to one crime if his or her conduct with respect to a transaction violates another provision of criminal law,” Mandel wrote in her brief.

Burum’s attorney, former U.S. District Court Judge Stephen Larson, in his answering brief, told the Supreme Court that the prosecution had failed to charge his client “with giving or offering bribes before the expiration of the statute of limitations. Instead, the People failed to bring timely charges against Mr. Burum, and the trial court and Court of Appeal properly rejected the People’s attempt to plead around the statute of limitations by using an impermissible charging scheme.”

In this way, Larson noted, Burum was not charged with bribery but rather with aiding and abetting two of the members of the board of supervisors – Biane and Postmus – with receiving bribes. Prosecutors allege separate $100,000 donations Burum made to political action committees controlled by Postmus and Biane constituted bribes, as did another $100,000 donation to a political action committee controlled by Kirk. Prosecutors allege Kirk influenced his boss, supervisor Gary Ovitt, to vote for the $102 million settlement.

Larson argued that the Court of Appeal correctly held that Burum cannot be charged with aiding and abetting the alleged receipt of bribes because an alleged bribe giver cannot be charged under Penal Code Section 31 with aiding and abetting the separate crime of receiving the bribe.

Penal Code Section 31 states “All persons concerned in the commission of a crime, whether it be felony or misdemeanor, and whether they directly commit the act constituting the offense, or aid and abet in its commission, or, not being present, have advised and encouraged its commission… or who, by threats, menaces, command, or coercion, compel another to commit any crime, are principals in any crime so committed.”

At issue in this regard, according to Larson, are two precedents, the Clapp Rule and the Wolden Case. Both were raised in the rulings by McCarville and the 4th Court of Appeal.

The Clapp case, from 1944, pertained to three women accused of involvement in an abortion, which at that time was illegal, and the conviction of the woman on whom the abortion was performed. The court held the woman submitting to an abortion was not punishable as a principal under one section of the penal code because her conduct was prohibited under another section. As such she was deemed not to be an accomplice in the crime of the other parties.

The case of People v. Wolden, which in itself relied upon the precedent of the Clapp Case, related to the case of Russell Wolden, the one-time assessor of San Francisco County who was indicted on 10 counts of accepting bribes and one count of conspiracy to accept bribes. One bribery count was dismissed and the jury failed to reach a verdict upon another and found him guilty of the conspiracy charge and eight counts of accepting bribes. Upon appeal, it was determined that the giver and receiver of a bribe are not guilty of a conspiracy, because the two crimes require different motives or purposes and that the giver of the bribe is not an accomplice in the “separate and distinct crime” of bribe taking.

In her brief, Mandel summarizes the issues before the State Supreme Court as “Can a bribe offeror be charged with conspiracy to commit bribery, and aiding and abetting the receipt of a bribe, where his conduct satisfies the elements of those crimes?” and “Can a private person be charged with aiding and abetting a criminal conflict of interest violation?”

Mandel argued that ultimately the answer to those questions was “yes.”

In his answering brief, Larson stated, “There is no basis to overturn the Clapp Rule. The bribe giver lacks the requisite intent to aid and abet the receipt of the bribe under Section 31. The People’s attempt to limit Clapp and Wolden to Section 1111 ignores the legislative history and judicial interpretations of Sections 31 and 1111.”

California Penal Code Section 1111 reads, “A conviction cannot be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof. An accomplice is hereby defined as one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given.”

Larson asserted, “The Clapp and Wolden rule was properly applied to the charges against Mr. Burum. The alleged threats and extortion are irrelevant to the bribery charges. Holding that bribe givers and bribe receivers can aid and abet each other would undermine the legislative intent in amending Section 1111 and could thwart future bribery prosecutions. The Court of Appeal correctly held that Mr. Burum cannot be charged with conspiring to commit the crime of receiving the alleged bribes. The Court of Appeal properly relied on Wolden.”

The precedences of the Clapp and Wolden cases have been for so long established that they have become standards under California jurisprudence, Larson maintained. Thus, even if the Supreme Court overturns both Clapp and Wolden, “due process prohibits retroactively applying the new rule of law to Mr. Burum.” Such an application would be an ex post facto application of law, that is, enforcing a law that did not exist at the time of the alleged crime’s commission, Larson maintains.

Larson also argued that it was a misapplication of the law to try to hold Burum accountable for the other defendants’ violations of Government Code Section 1090 and 1097, which prohibit an elected official from engaging in a financial conflict of interest or making a decision which will have an impact on his own financial circumstance.

“The Court of Appeal correctly held that Mr. Burum cannot be charged with aiding and abetting or conspiring in the alleged violation of Government Code Section 1090. Government Code Sections 1090 and 1097 do not apply to private citizens. The Court of Appeal properly based its ruling on the legislative intent to exclude aiding and abetting liability.”

While for the most part, Larson asserted that the Court of Appeals had engaged in sound analysis of the criminal case and made accurate rulings, he did take issue with the Court of Appeal’s finding that Burum should stand trial for improperly seeking to influence public officials, a crime prohibited under Government Code Section 9054.

“The court of Appeal erred in finding that Government Codes Section 8954 was constitutionally sound,” Larson wrote.