From left, developer Jeff Burum, Mark Kirk, former chief of staff to Supervisor Gary Ovitt, former assistant assessor Jim Erwin and former supervisor Paul Biane appear in San Bernardino County Superior Court in this file photo during the Colonies corruption trial.

By Joe Nelson, The Sun
and Richard K. De Atley, The Press-Enterprise
Posted: 07/15/17 – 4:29 PM PDT |

Called “the biggest public corruption case in San Bernardino County history” when it was filed in 2010, the marathon Colonies case nears an end after seven months of trial, with defense attorneys saying bribery wasn’t proven while prosecutors say nothing can erase years of dirty dealing.

Then-California Attorney General Jerry Brown came to San Bernardino in February 2010 to announce the case with District Attorney Mike Ramos and gave it the superlative. Since then, court rulings and dismissal motions have reduced the charges from 29 to 11, and the prosecution’s case has featured shaky and contradictory testimony from its star witnesses.

One defendant no longer faces bribery charges, and Judge Michael A. Smith dismissed a total of nine felony counts against the four defendants in the past two weeks following motions filed by the defense.

“We have said for years — as all four defendants have suffered mightily under the weight of unfounded allegations — that these charges should never have been brought and that a public trial would establish their innocence. And that is exactly what these last six months have revealed,” said defense attorney Stephen Larson, who represents defendant and Rancho Cucamonga developer Jeff Burum.

The District Attorney’s Office declined to comment, saying it would be inappropriate to discuss an ongoing trial.

The prosecution rested its case June 29. Now, the defense begins presenting its witnesses on Monday and could wrap everything up as early as Thursday.

“You don’t have to call on witnesses to establish a defense because the prosecution’s witnesses were used and were cross-examined by the defense,” said attorney Rajan Maline, who represents defendant and former county Assistant Assessor Jim Erwin. He said the defense was able to impeach or cast doubt on many of the prosecution’s key witnesses and show that a $102 million settlement the county paid Rancho Cucamonga investor group Colonies Partners in November 2006 was legitimate.

Despite the prosecution’s assertion that the settlement was excessive and tainted by bribery, the defense, Maline said, showed the opposite — that there was no evidence presented to prove that beyond a reasonable doubt. The defense also noted that the county’s lead in-house counsel, while initially opposed to the settlement when it was approved, later voiced support for the settlement.

“They ignored the mountains of evidence that pointed to innocence,” Maline said of the prosecution.

Prosecutors allege Burum, a co-managing partner of Colonies Partners, made contributions of $100,000 each to three county officials and Erwin in the months after the Board of Supervisors approved the controversial $102 million settlement.

The settlement ended a nearly five-year legal battle over flood-control work at Colonies’ 434-acre residential and commercial development in Upland, Colonies at San Antonio and Colonies Crossroads, respectively.

Prosecutors allege the contributions, which they say were bribes, were funneled into sham political action committees secretly controlled by the recipients — former county Supervisor Paul Biane, former county Assessor and Board of Supervisors Chairman Bill Postmus, Mark Kirk, the former chief of staff for former county Supervisor Gary Ovitt, and Erwin.

• Related Story: Journalists shouldn’t have to testify in Colonies case, attorney says

Postmus, initially a defendant in the case, struck a plea agreement with prosecutors in March 2011, pleading guilty to 10 felonies in connection with the Colonies case and a companion corruption case in which he was convicted of abusing his position as county assessor for political gain.

All the defendants have denied any wrongdoing and pointed out that the Colonies contributions were donated openly and could be tracked online.

On June 30, 2009, former Assistant Assessor Adam Aleman also entered into a plea agreement with prosecutors after approaching district attorney investigators on Nov. 1, 2008, with allegations about corruption involving the Colonies settlement. He pleaded no contest to four felonies in connection with crimes at the Assessor’s Office.

Both Aleman and Postmus agreed to cooperate in the criminal investigation and testify at trial in exchange for leniency.

Biane’s attorney, Mark McDonald, said in an email that he anticipates a “minimal defense case, since the prosecution has rested having failed to prove any of the charges as to any of the defendants.”

“This prosecution should never have been brought,” McDonald said.

Kirk’s attorney, Peter Scalisi, said in a telephone interview he is re-evaluating his defense strategy given Smith’s dismissal of bribery and misappropriation of public funds charges against his client.

“It essentially devastates the case for the prosecution against Mr. Kirk,” Scalisi said. “I certainly believe there is no evidence to convict (Kirk) of the remaining charges,” Scalisi said. “Mark has always maintained his innocence, and the way that the DA’s case has played out, the evidence shows that he is innocent.”

While the defense maintains prosecutors failed to show any hard evidence of bribery during trial, Deputy Attorney General Melissa Mandel told Judge Smith on Monday that the defense has “reframed” the prosecution’s case, which she said was essentially a conspiracy case built on substantial documented evidence.

“I think the case that has been sold to the court and to the public is not the case you heard presented here,” Mandel told Smith in court on July 10. “The case presented here has proven every allegation in the indictment of a conspiracy to commit bribery.”

Mandel said “dozens or hundreds” of exhibits and documents, admitted by stipulation, showed an alleged “secret flow of money” beginning in 2004, when Burum began to ramp up efforts to settle the civil case. The defendants knew they were going to be financially rewarded for getting the settlement done, Mandel insisted.

The exhibits showing the alleged “secret flow of money” did not come out during the trial.

Biane, according to Mandel, became a target of pressure from Postmus when a $77.5 million settlement reached in March 2005 was killed after it was leaked to the media. The agreement had been hammered out at Biane’s Rancho Cucamonga office, where he and Postmus met with Colonies officials to discuss the case. Lawyers for both sides were asked to leave the second half of the meeting.

“When everything blew up because the settlement was leaked, Mr. Biane got scared, and things changed,” Mandel said. She said that’s when Burum recruited Postmus to pressure Biane to settle, which ultimately was the case when Biane, Postmus and Ovitt approved the settlement on Nov. 28, 2006. County Supervisors Josie Gonzales and Dennis Hansberger voted no.

Colonies also poured roughly $340,000 into a campaign to defeat Biane’s Measure P in 2006, which proposed pay raises and term limits for county supervisors, Mandel said, producing a document showing the $339,773 contribution from Colonies to the anti-Measure P group Citizens Against Pay Raises for Politicians.

And when retired San Bernardino Superior Court Judge Christopher Warner on July 31, 2006, issued his scathing tentative ruling against the county and in favor of Colonies during the second trial in the civil case, Postmus provided Burum — the county’s adversary in the lawsuit — an advance copy of a public statement he was going to put out on Warner’s decision, which was critical of the county and advocated for a settlement, Mandel pointed out.

To read expanded article, click here.