Mark Kirk, the former chief of staff for San Bernardino County Supervisor Gary Ovitt (Staff file photo by Rick Sforza, The Sun/SCNG)
By Joe Nelson, The Sun
and Richard K. De Atley, The Press-Enterprise
Posted: 07/05/17 – 7:46 PM PDT |
A bribery charge in the San Bernardino County Colonies public corruption case was dismissed Wednesday against Mark Kirk, the one-time chief of staff for former county Supervisor Gary Ovitt in 2006 when supervisors approved a $102 million settlement favorable to the land developer.
Judge Michael A. Smith tossed out a charge that alleged Kirk asked for or received a bribe, agreeing with defense attorney Peter Scalisi that there was insufficient evidence to show corrupt intent on Kirk’s part when his political action committee, Alliance for Ethical Government, received a $100,000 contribution from Rancho Cucamonga investor group/developer Colonies Partners LP in the months after the settlement vote was taken.
But during an afternoon hearing, Smith sustained charges of improper influence of a public official and conflict of interest, meaning those charges will remain before jurors in the trial, which is now in its seventh month of testimony.
“Mr. Kirk was relieved that Judge Mike Smith found that there was no corrupt intent on the part of Mr. Kirk and that Judge Smith dismissed the charge of bribery,” Scalisi said following Wednesday’s proceedings.
Smith will not be ruling on Scalisi’s request to dismiss a charge of aiding and abetting former county supervisors Paul Biane and Bill Postmus in the misappropriation of public funds until Tuesday, when Scalisi returns from Portland, where he has a federal case being heard.
As to Smith’s refusal to dismiss the other two charges against his client, Scalisi said he was reserving comment until Tuesday.
Meanwhile, Smith will oversee finalizing jury instructions and consider dismissal motions for the other three defendants — Biane, Rancho Cucamonga developer and Colonies co-managing partner Jeff Burum, and former assistant assessor Jim Erwin — on Thursday, Friday and Monday.
The motions to dismiss are routine after the prosecution rests its case, which it did last week. It allows the judge to consider the strength of the case before it moves into defense presentation of witnesses, final arguments and jury deliberations.
The defense is scheduled to begin presenting its case to jurors on July 12.
Prosecutors from the District Attorney’s and state Attorney General’s offices are jointly prosecuting the case. They allege three county officials took $100,000 bribes, which were reported as campaign contributions, from Burum to gain county Board of Supervisors’ approval for a $102 million court settlement over flood-control work at Colonies Partners’ 434-acre residential and commercial development in Upland.
All the defendants have denied any wrongdoing, saying the contributions, which were from Colonies Partners, were public donations to legal political action committees and were part of the Colonies’ attempts to mend fences after the contentious legal dispute. The contributions were available online for public review.
The prosecution’s case has depended primarily on circumstantial evidence and the testimony of Postmus, a former county assessor, and his former assistant assessor, Adam Aleman, who both struck plea deals with prosecutors to cooperate and testify in exchange for lighter sentences.
Postmus was chairman of the Board of Supervisors when it approved the Colonies settlement 3-2 in November 2006.
In making his arguments for Kirk on Wednesday, Scalisi asked Smith to dismiss all four charges against his client.
“We’re asking the court essentially to enter a judgment of acquittal … for lack of sufficient evidence,” Scalisi said as he began.
“I think the most compelling evidence … would be the testimony of Gary Ovitt. I think we can all agree that Mr. Ovitt has a very distinguished political career” Scalisi said, adding that the former supervisor “Came across as an honest, forthright, good witness who just here to tell the truth, no matter who questioned him.”
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