Gavel-Legal

By Joe Nelson, The Sun
Posted: 07/28/14, 12:22 PM PDT | Updated: 1 min ago

SAN BERNARDINO >> A Superior Court judge ruled Monday that prosecutors can amend the indictment in the Colonies corruption case, preventing the dismissal of a dozen more charges against the four defendants.

Responding to arguments by defense attorneys that the case should be dismissed based on the statute of limitations, Judge Michael A. Smith ruled that, despite suspicions of wrongdoing raised by county officials and attorneys during heated settlement negotiations in 2006, there wasn’t enough evidence at the time to warrant a criminal investigation.

“At most, they had a gut feeling something wasn’t right,” Smith said. “There were no facts or information to support a reasonable suspicion that there were offers or payments to defendants, or that the defendants agreed to accept payment in exchange for their votes.”

In November 2006, the county settled a lawsuit with developer Jeff Burum and his Rancho Cucamonga investor group Colonies Partners LP for $102 million after nearly five years of litigation over who was responsible for flood control improvements at the Colonies’ 434-acre residential and commercial development in Upland. Some county officials and attorneys representing the county felt the settlement was suspicious and may have been a gift of public funds.

Still, that wouldn’t have been enough to warrant a criminal investigation that could have produced evidence leading to an indictment, Smith determined.

Prosecutors did not begin investigating the settlement until late 2008 or early 2009, after a former Assessor’s Office administrator accused of wrongdoing in the Assessor’s Office agreed to provide information related to alleged bribery by Colonies developers in return for leniency in his own case.

A Grand Jury indicted Burum and three former county officials – former Second District Supervisor Paul Biane, former Assistant Assessor Jim Erwin and Mark Kirk, former chief of staff for Supervisor Gary Ovitt – in May 2011.

Smith on Monday rejected a second defense motion challenging the merits of the case due to the statute of limitations and began hearing a third motion alleging prosecutors failed to provide the grand jury with exculpatory evidence that could have prevented an indictment.

Burum’s attorney, Stephen Larson, argued that prosecutors failed to inform the Grand Jury of key witness Bill Postmus’ methamphetamine addiction, which goes towards his credibility as a reliable witness. Prosecutors, Larson said, also prevented the Grand Jury from hearing prior testimony from Burum during a 2009 grand jury proceeding, which was relevant to the current criminal case, and that the Grand Jury wasn’t informed of statements Postmus made during grand jury proceedings that were contrary to what he previously told investigators.

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