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Saturday, May 14, 2011

Attorney looking at statute of limitations in Colonies case

Attorney looking at statute of limitations in Colonies case
By Joe Nelson

An attorney for Jeffrey Burum, the Rancho Cucamonga developer facing bribery and other charges, plans to argue in court that the statute of limitations to prosecute his client has lapsed.

Prosecutors allege Burum and three former and current San Bernardino County officials conspired to secure a landmark $102million settlement for Burum's Rancho Cucamonga-based Colonies Partners LP in November 2006 in exchange for bribes.

The $400,000 in alleged bribes, prosecutors say, was concealed in fraudulent political action committees controlled by those who received the bribes.

Also charged in the 29-count indictment handed down Tuesday are former county Supervisor Paul Biane, former Assistant Assessor Jim Erwin and Mark Kirk, director of intergovernmental relations for the county.

Each has been charged with conspiracy to commit bribery, misappropriation of public funds, improper influence and conflict of interest, among other charges.

John Vandevelde, the attorney representing Burum, is arguing that the three-year statute of limitations to charge Burum has lapsed, and he plans to file a court motion to argue that point.

In a special allegation included in the indictment, prosecutors said they did not become aware of the alleged crimes until Nov. 1, 2008. Therefore, prosecutors argue, the three-year time limit to charge the defendants began on that date and not on the date or dates that the crimes allegedly occurred.

Prosecutors cited a 1976 court case and a Penal Code section that says the statute of limitations to charge public officials for specific crimes, such as acceptance of a bribe, does not begin until the discovery of the offense.

Also at issue is whether a four-year statute of limitations to charge public officials with misappropriating public funds applies to Burum, a private citizen.

"In many crimes the statue begins running from the date the crime occurred, however, there's this other subset of offenses where the statute doesn't begin to run until it is reasonably determined," said Deputy District Attorney John Goritz, a prosecutor on the case.

He declined further comment.

In a written response to a letter from prosecutors in March indicating Burum was the target of a Grand Jury inquiry, Vandevelde argued that prosecutors may have missed the boat in charging his client.

"It is our view that the Grand Jury must be instructed that the statute of limitations for any possible involvement by Mr. Burum expired as of November 28, 2009, or at the latest, June 29, 2010," Vandevelde wrote.

Those two dates were, respectively, three years to the day of the Colonies settlement being approved and the final contribution by Colonies Partners to Inland Empire PAC, the political action committee allegedly controlled by Postmus.

Vandevelde is also arguing that the case law prosecutors are citing about the statute of limitations applies only to public officials accused of accepting a bribe, not a private citizen.

Jessica Levinson, a lawyer and director of political reform at the Center for Governmental Studies in Los Angeles, said Vandevelde poses a novel legal argument.

She said prosecutors have included a special allegation in the indictment that appears, on its surface, to be applicable only to public officials accused of receiving bribes, not private citizens

And while that may apply to Erwin, Biane and Kirk, it doesn't seem to fit the mold for Burum, Levinson said.

"It doesn't look like he (Burum) would fall within this (Penal Code) subsection," she said.

The alleged conspiracy, prosecutors say, was hatched by Burum during a trip to China in September 2005 with then-county Supervisor Bill Postmus and was culminated in November 2006 with Postmus and two other county supervisors voting against the settlement against the recommendations of county counsel and private attorneys retained by the county.

On March 28, Postmus, as part of a plea bargain with prosecutors, pleaded guilty to 14 felonies, admitting he accepted a bribe from Colonies Partners in exchange for his vote approving the settlement. He has agreed to cooperate with authorities and turn state's evidence in exchange for reduced charges.

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