Scales of Justice

By Mark Gutglueck
November 14, 2013

Whether a landmark political corruption case against Rancho Cucamonga developer Jeff Burum and three former San Bernardino County political figures will proceed to trial now hinges on the California Supreme Court’s determination of a highly arcane legal issue.

More than a week after hearing oral arguments, the state’s highest court is now engaged in determining whether the circumstances in the case are sufficiently different from several decades-old bribery cases to override legal precedents that disallow a defendant who has allegedly offered a bribe to a public official from being charged with abetting the alleged recipient in having received the bribe.

In February 2010, a grand jury indicted former county supervisor/county assessor Bill Postmus and one of his political associates, Jim Erwin, who had been the head of the county sheriff’s deputies union before he was appointed by Postmus to serve as assistant assessor. Five others were identified as unnamed co-conspirators in that indictment, which charged Postmus with a host of crimes, including conspiracy, soliciting bribes, accepting bribes, perjury, filing falsified documents and other violations of the public trust. The charges were filed in connection with his November 2006 vote, while he was still chairman of the county board of supervisors, to approve a $102 million legal settlement between the county and the Colonies Partners, which was controlled and managed by Burum and Dan Richards.

Erwin, who had been instrumental in vectoring monetary support from the sheriff’s deputies’ union to Postmus’s supervisorial and assessor campaigns and was subsequently appointed to one of two assistant assessor positions Postmus established after his election as assessor, was charged with conspiracy, extortion and bribery, perjury, filing falsified public documents and tax evasion. Prosecutors alleged that Erwin, who was working as a consultant for the Colonies Partners in 2006, threatened to disclose damaging information relating to both Postmus and his then-board colleague Paul Biane before Postmus, Biane and a third member of the board, Gary Ovitt, voted to approve the $102 million settlement of the lawsuit the Colonies Partners had brought against the county over flood control issues at the company’s Colonies at San Antonio residential and Colonies Crossroads commercial projects in northeast Upland. After the settlement was approved in November 2006, according to prosecutors, Burum rewarded Postmus, Biane, Erwin and Ovitt’s chief of staff, Mark Kirk, with $100,000 each in contributions to political action committees they controlled.

Initially Postmus and Erwin both pleaded not guilty to those charges. But in March 2011, Postmus pleaded guilty to all fourteen counts contained in the indictment against him along with one other unrelated drug possession count and agreed to turn state’s evidence. He was the star witness before a newly-impaneled grand jury that heard evidence in April 2011. In May 2011, that grand jury handed down a superseding indictment that collectively charged Erwin, Burum, Biane and Kirk with conspiracy relating to the alleged bribery scheme.

Erwin was hammered with multiple counts, including receiving a bribe, acting as Burum’s agent, perjury, filing falsified documents and tax evasion. Biane was charged with soliciting and receiving a bribe in exchange for his vote. Kirk was charged with receiving a bribe in exchange for influencing his boss, Ovitt, to vote to approve the settlement. Burum was charged with extorting Postmus and Biane but was not charged with bribery. Rather, prosecutors fashioned charges against him that alleged aiding and abetting Postmus, Biane and Kirk in receiving bribes. The defendants were also charged with conflict-of-interest and misappropriating public funds. No substantive counts of extortion were charged in the superseding indictment and the extortion counts against Erwin in the February 2010 indictment were dispensed with, although extortion allegations were wrapped into the broad conspiracy count contained in the May 2011 indictment.

Defense attorneys filed demurrers on behalf of their clients, motions which called into question the legal sufficiency of the charges against the defendants. Cited in those demurrers were the cases of People v. Davis, People vs. Clapp and People vs Wolden, all of which bore upon the inability of prosecutors to charge a defendant with conspiracy or aiding and abetting a crime when that individual stands accused of a crime that necessarily involves the involvement of another individual.

In the case of People v. Davis, the court ruled that “the giver and receiver of a bribe are no longer accomplices one to the other.”
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 August 2011, Judge Brian McCarville granted several of the defendants’ demurrers in what has become known as the Colonies Lawsuit Settlement Public Corruption Prosecution, ruling that a defendant such as Burum who was essentially accused of giving bribes cannot also be charged with aiding and abetting the receipt of bribes, and he dismissed all four bribery counts and one of misappropriation of public funds against Burum, leaving only two of the original seven charges against the figure at the center of the case intact.

McCarville further dismissed one felony count of misappropriation of public funds for each of the other defendants. The prosecution, consisting of both the California Attorney General’s office and the San Bernardino County District Attorney’s office, appealed McCarville’s ruling to the Fourth District Court of Appeal in Riverside, which in October 2012 upheld McCarville with regard to the four bribery counts against Burum that had been tossed, and also threw out a conflict-of-interest count McCarville had let stand. The appeals court did, however, reinstate the misappropriation of public funds charge against Burum that McCarville had dismissed.

Prosecutors then made a last-minute appeal of the Fourth District’s ruling to the California Supreme Court on December 10, 2012. Led by Deputy California Attorney General Melissa Mandel, the prosecution’s petition maintains that California bribery law is stale and dated, having not kept pace with changes with regard to bribery and other public officer crimes in other states as well as at the federal level and is inconsistent with other related court decisions. Moreover, according to prosecutors, the circumstances in the Colonies Lawsuit Settlement Public Corruption Prosecution are not limited to a simple one-to-one relationship between the offerer of a bribe and the receiver, but involve agents acting on behalf of Burum, and thus, Davis, Clapp and Wolden are inapplicable.

On November 5, Mandel, representing the prosecution, and Stephen Larson, a former federal judge who is representing Burum, made oral arguments of their respective positions before the State Supreme Court in Sacramento.

Larson, in his presentation and answers to the justices’ questions, reiterated his previous assertions in court documents that the prosecution is engaged in an impermissible charging scheme and that it was engaging in an elaborate stretching of the law in seeking to overcome having failed to charge his client with giving or offering bribes before the expiration of the statute of limitations.

Having failed to bring timely charges against Burum, Larson wrote in his answering brief to Mandel’s argument filed with the state Supreme Court, the prosecution is now seeking to eviscerate the law and the longstanding interpretation of it.

“The people ask this court to overturn over a century of precedent precluding their improper attempt to charge Mr. Burum, the alleged bribe-giver, under derivative theories of liability for the crime of receiving bribes,” Larson wrote. Just as the prosecution had failed to act in time to properly charge Burum with bribery, it also blew the statute on the extortion and blackmail elements it has attempted to weave into the case, Larson said. What the prosecution is asking for, Larson said, amounted to a “do over” of its inadequate original filing. As such, Larson maintains, it is asking the California Supreme Court to make a contrary interpretation of its own case law pertaining to the inability to charge a bribe giver with aiding and abetting the bribe taker in receiving the bribe. Larson pointed out that there were no secondary acts alleged against Burum in the original indictment and that even if the court were to reverse more than 90 years of standing case law, the applicability of that interpretation to Burum at this point would amount to an improper ex post facto prosecution, i.e., the retroactive application of a law to action prior to the law being in effect, which is expressly forbidden by the United States Constitution in Article 1, Section 9, Clause 3.

Mandel, faced with the task of convincing the Supreme Court that existing statutes and case law are unequal to the circumstances and actions alleged in the indictment, found herself faced with questions from the justices indicating at least a modicum of skepticism with regard to her novel legal theories. She attempted to blend together the overt acts alleged in the indictment with the action of Erwin, who was described in the indictment as Burum’s “agent,” “mule” and “underling,” to propound the theory that his action in having prepared, prior to the 2006 election, never-delivered mailers and handbills which dwelled on derogatory information relating to Postmus and Biane, constituted blackmail and extortion that paved the way for the bribes that were delivered to Postmus and Biane after the vote conferring the $102 million settlement on the Colonies Partners. The combination of the bribes, extortion, blackmail and the use of a third party, i.e., Erwin, in this regard, Mandel suggested, constituted a facilitation of the crime that went beyond mere bribery.

Burum, she said, utilized his “enormous political power and financial resources to coerce the public officials into accepting his bribes.”

To questions from the justices as to whether the prosecution had allowed the statute of limitations on the bribery – which allegedly occurred between February 2007 and June 2007 – to elapse by the time of the May 2011 indictment of Burum, Mandel did not provide a direct answer.

Present during the oral arguments before the Supreme Court, but not taking part, were deputy district attorneys Lewis Cope, Reza Sedeghi and John Goritz, all of whom work in the office’s public integrity division, as well as former deputy California Attorney General Gary Schons, who previously oversaw the case and supervised Mandel when the case was filed.

While Mandel maintains the matter is a “high-profile public corruption case that is being closely watched and will be used as a benchmark to inform the conduct of both public officials and those seeking to influence them” and is “the right case” for the Supreme Court to make a precedent-setting decision with regard to bribery of public officials and thereby “offer guidance on … what acts they can commit without subjecting themselves to prosecution,” Larson 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. He said the Davis, Clapp and Wolden precedents have been for so long established that they have become standards under California jurisprudence.

He said the Court of Appeal had engaged in sound analysis of the criminal case and made accurate rulings. “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,” according to Larson. “The Court of Appeal properly based its ruling on the legislative intent to exclude aiding and abetting liability.”

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