Judge says FBI searches in Colonies case appear just

Joe Nelson and Mike Cruz, The (San Bernardino County) Sun
Posted: 11/10/2011 05:01:31 PM PST

RIVERSIDE — A federal judge seemed poised to rule that federal agents did not violate the civil rights of Rancho Cucamonga developer Jeff Burum when they served search warrants at his home and office in September.

During a two-hour hearing Thursday in U.S. District Court, Judge S. James Otero heard arguments from Burum’s attorney, Stephen G. Larson, and Assistant U.S. Attorney Jerry A. Behnke over whether federal prosecutors should be able to retain documents and other information seized during the Sept. 15 raid.

There is no deadline or estimated amount of time for Otero to deliver a decision, lawyers said. All they can do is wait for an email alert from the court that a ruling is available.

In the meantime, federal prosecutors are proceeding with their investigation of Burum and other three others in connection with the 2006 lawsuit settlement between San Bernardino County and Colonies Partners.

Former Assistant Assessor Jim Erwin and Mark Kirk, the former chief of staff for county Supervisor Gary Ovitt, also are challenging FBI searches of their property, court records indicate.

Larson alleges the warrants that FBI and IRS agents served at Burum’s home and office were overly broad and vague, and that agents were essentially on a fishing expedition. He also alleges agents acted in callous disregard for Burum’s civil rights, lying in a search warrant affidavit that Larson had condoned a search of his office and had escorted agents during the office walk-through.

Despite a declaration by FBI Agent Jonathan Zeitlin that agents did not search Larson’s office without Larson present, Larson said in a court motion that a surveillance video showed agents entering his office, and one agent went through his desk drawers.

Otero saw things differently.

“This appears to be simple human error,” Otero said during Thursday’s hearing. “A mistake does not become a significant error unless it’s not corrected.”

He based his opinion on declarations made by Zeitlin and FBI Special Agent Anthony Montero, in which Montero admitted that Zeitlin had given him the affidavit for vetting and that Montero signed off on it, overlooking the information indicating that Larson condoned the walk-through of his office and was present during it.

Behnke said the government takes such matters seriously.

“And the government apologizes for the mistake that was made,” Behnke said. He said nothing was seized from Larson’s office and law library, which are housed in the Diversified Pacific building on Civic Center Drive in Rancho Cucamonga. Burum founded Diversified Pacific in the 1990s, and roughly four dozen other businesses that Burum has a vested interest in are housed in the same building.

Larson disputed Otero’s argument that federal officials had appropriately corrected their error.

“Only once they received the video surveillance did they say, `Oh, it was a mistake,”‘ Larson said.

At the heart of Thursday’s hearing was whether the court should consider blocking federal prosecutors’ access to the documents and electronic data seized from Burum’s home and office based on Larson’s allegations.

FBI and IRS agents served nine warrants during the daylong raid in connection with San Bernardino County’s $102 million legal settlement with Rancho Cucamonga- based investor group Colonies Partners LP, of which Burum is a co-managing partner, in November 2006.

The settlement ended a nearly five-year legal battle over who was responsible for paying for flood-control improvements at the developer’s 434-acre Colonies at San Antonio residential and Colonies Crossroads commercial development in Upland.

The San Bernardino County District Attorney’s and state Attorney General’s offices already have charged Burum and three former county officials with conspiracy and conflict of interest in connection with the settlement. Prosecutors allege the settlement was the result of bribery and blackmail.

Larson said the federal investigation into the Colonies’ settlement is unique due to the state’s pending criminal case in San Bernardino Superior Court.

Otero, however, said there was no evidence to show that information from the federal searches will be shared with state and local prosecutors.

Also charged in the state case are former county Supervisor Paul Biane, former assistant assessor Jim Erwin and Mark Kirk, former chief of staff for Supervisor Gary Ovitt. All four defendants deny any wrongdoing.

In a rare move, prosecutors last week agreed to return to Burum and Larson the materials seized during the raids, but have retained copies for their investigation. Larson, however, is trying to have the searches quashed by having them declared illegal.

Otero did not issue his ruling Thursday. That will be made in writing and announced at a later date.

Larson said he expects to receive Otero’s decision via e-mail.

Behnke declined to comment following the hearing.

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