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 Colonies bribery case. File photo. (David Bauman/The Press-Enterprise)

By Joe Nelson, The Sun
and Richard K. De Atley, The Press-Enterprise
Posted: 07/17/17 – 12:02 PM PDT |

Defense attorneys in the San Bernardino County Colonies bribery case rested Monday after about one hour of presentation, setting the stage for final arguments in mid-August.

The “defense rests” litany from attorneys for all four defendants came unexpectedly — a witness list had been prepared, and it appeared there would be testimony lasting at least through Thursday.

But after brief statements from attorneys for defendants Mark Kirk and Paul Biane, and a review by Jeff Burum’s attorney, Stephen Larson, of statements by witnesses that both prosecutors and defense attorneys agreed not to contest by an agreement called a stipulation, the defense case was suddenly over.

The two juries applauded after Judge Michael A. Smith remarked, “So the defense case went a little quicker than thought.”

Larson said in a statement Monday that defense attorneys got their side across during their cross-examinations spanning the duration of the seven-month-long trial.

“The prosecution had six months to prove its case, and they failed,” Larson said in his statement. “We used those six months to cross-examine their witnesses — which of course never happened before the indicting grand jury — to expose the rest of the story and establish that these men are innocent and these charges should never have been brought.”

District Attorney spokesman Christopher Lee declined to comment, saying in an email it would be inappropriate.

Closing arguments are set to begin Aug. 14. Attorneys this week will be hashing out jury instructions and exhibits, and the following weeks are dark for jury absences and Smith’s vacation.

Prosecutors allege Burum, a co-managing partner of Colonies Partners, made contributions of $100,000 each to three county officials and to Jim Erwin, a former law enforcement union official who became a county Assistant assessor in the months after the Board of Supervisors approved the $102 million settlement. The settlement ended the nearly five-year-old Colonies civil litigation in November 2006 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 were funneled into sham political action committees secretly controlled by the recipients — Biane, Erwin, Kirk and Bill Postmus, a former county assessor and Board of Supervisors chairman.

The defendants have all said they did nothing wrong, that the PACs were set up legally, and the contributions from Colonies Partners were made with checks bearing the limited partnership’s name, and could be traced by the public in the online records for the PACs.

Postmus later entered a plea deal with prosecutors and testified against the other defendants during the trial.

Defense attorneys Peter Scalisi and Mark McDonald, who represent defendants Kirk and Biane, respectively, gave their opening statements, which they reserved at the beginning of trial until after the prosecution rested.

Kirk is the former chief of staff for former county Supervisor Gary Ovitt, and Biane is a former county supervisor who voted in favor of the Colonies settlement on Nov. 28, 2006, along with Postmus, who was then Board of Supervisors chairman, and Ovitt. Supervisors Josie Gonzales and Dennis Hansberger voted against the settlement, which was not ratified by any of the county’s outside and in-house counsel.

Kirk stands accused of influencing Ovitt to vote in favor of the settlement, an allegation the defense has fought, citing Ovitt’s advocacy of a settlement since before he was elected supervisor. Ovitt testified to that during trial.

“The bottom line is the evidence will show you that Gary Ovitt, under oath, said he made the decision he voted for the settlement because it was the right thing to do,” Scalisi told jurors Monday, adding that Kirk did not influence his decision on the settlement in any way.

Scalisi said that Postmus told FBI agents in an October 2011 interview that Adam Aleman, another assistant assessor for Postmus, had lied when he reportedly made statements that Kirk had told him he had taken a bribe or was going to solicit a bribe. Postmus told FBI agents at the time, “We didn’t know anyone that had been solicited that $100,000.”

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