Tuesday, December 24, 2013
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S.C. Revives Bribery Charges in San Bernardino County Case
Justices Say a Person Who Offers a Bribe May Sometimes Be Charged With Conspiracy
By KENNETH OFGANG, Staff Writer
A person who offers a bribe may, in some circumstances, be charged with aiding and abetting bribery and/or with conspiracy, the state Supreme Court ruled yesterday.
The justices unanimously reinstated charges against Rancho Cucamonga developer Jeff Burum and James Erwin, a former assistant assessor who allegedly acted as Burum’s agent in attempting to persuade San Bernardino County supervisors to settle a massive lawsuit on terms favorable to the developer.
The pair were charged—along with then-Supervisor Paul Biane and Mark Kirk, then chief-of-staff to Supervisor Gary Ovitt—in a 29-count indictment issued in May 2011. The indictment claimed that the defendants and former Supervisor Bill Postmus—who pled guilty and agreed to cooperate with prosecutors—schemed to have the board approve a settlement whereby a suit over county easement rights would end with the county paying Burum’s company, Colonies L.P., $102 million in exchange for $100,000 donations to political committees controlled by Biane, Kirk, Postmus, and Erwin.
The charges against Burum and Erwin included conspiracy to accept bribes, misappropriate public funds, commit conflict of interest, and improperly influence legislative action. The two were also accused in four counts of aiding and abetting Postmus and Biane in the acceptance of bribes.
Demurrer Sustained
San Bernardino Superior Court Judge Brian McCarville sustained Burum’s demurrer to the aiding and abetting counts and pared the conspiracy count, ruling that Burum could only be guilty to the extent that he conspired with persons other than the targets of the bribe offers.
The judge overruled Erwin’s demurrer, holding that while Burum—as the alleged offeror of the bribe—could not be convicted of aiding and abetting or of conspiring with the targets of the offers, Erwin, as an intermediary, could be convicted of those offenses.
The Fourth District Court of Appeal affirmed as to Burum and reversed, in part, as to Erwin. The panel held that Erwin could not be convicted as an aider and abettor with respect to Biane, since he could only have acted as an agent of Burum, but that he might be convicted on the counts involving Postmus, on the theory that he was acting as Postmus’ agent as well as Burum’s.
The panel also concluded that Erwin could be tried for conspiracy, except to the extent the charge relied on the target crimes alleged in the two counts that were dismissed.
The Supreme Court, however, agreed with prosecutors that the demurrers should have been overruled as to all counts.
Baxter’s Opinion
Justice Marvin Baxter, writing for the court, said the offeror of a bribe may be charged as an aider and abettor of the recipient, as long as “the offeror’s conduct, beyond merely offering or paying a bribe, satisfies the elements of aiding and abetting the receipt of the bribe.”
Burum, the justice explained, is accused not only of offering bribes, but of using threats, intimidation, and coercion, including donating money to a campaign to block the supervisors from receiving pay raises, hiring private investigators to sift through Postmus’ trash for incriminating information, and threatened to distribute mailers to voters claiming that Postmus was addicted to drugs, as a means of pressuring him to secure Biane’s vote.
The Court of Appeal’s error as to Burum applies equally to Erwin, Baxter said.
The justice went on to say that the original conspiracy count should be reinstated because it, like the aider-and-abettor-of-bribery count, alleges conduct beyond merely colluding to give and receive the charged bribes.
‘Elaborate Conspiracy’
He cited Calhoun v. Superior Court (1955) 46 Cal.2d 18, which dealt with what the court called an “elaborate conspiracy” on the part of a lobbyist, a candidate for the state Board of Equalization, and others to illegally finance the candidate’s campaign with donations from persons whose businesses were regulated by the board.
The court held that while the mere giving and receiving of illegal donations was not punishable as conspiracy, the lobbyist’s conduct went beyond that, amounting to “a much more intimate participation” in the campaign that merely donating money.
Baxter wrote:
“Here, as in Calhoun…the indictment alleges that Burum and Erwin participated in a conspiracy that was more elaborate than the mere agreement that a particular bribe be accepted, but involved and depended on the conduct of numerous parties to ensure that at least three supervisors be influenced to approve the $102 million litigation settlement. The Court of Appeal thus erred in ruling that Burum and Erwin, as a matter of law, could not conspire to commit the target bribery offenses.”
On remand, the Court of Appeal may consider other grounds for dismissal argued by the defendants, Baxter said.
Burum’s attorney, former U.S. District Judge Stephen Larson, now with Arent Fox in Los Angeles, argued that prosecutors used a “very creative, innovative charging scheme” to accuse Burum of aiding and abetting because they couldn’t charge him with bribery five years after the alleged crime.
Deputy Attorney General Melissa Mandel argued the case for the prosecution.
The case is People v. Biane, 13 S.O.S. 6596.
Copyright 2013, Metropolitan News Company