The Sentinel

By Mark Gutglueck
Posted on January 24, 2014 (www.sbsentinel.com)

(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.