This morning, that armor stared out at bleak April Fool’s snow. Marty Jackley was in town to put a chink in that armor.
South Dakota’s Attorney General entered the magistrate court room attached to Aberdeen’s City hall at 9:12 a.m. He wore a dark charcoal suit, black-and-white striped necktie, and a small AG pin that looks like a sheriff’s star on his lapel. Jackley wore a wedding band on his left hand and another ring on his right pinky. He and his assistant, Brent Kempema, greeted and conversed with Bollen’s local attorney Reed Rasmussen quietly and genially. As the small room filled with spectators, reporters (Aberdeen American News, SDPB, AP, Hub City Radio, SoDakLiberty, KELO, KSFY, KDLT), and defendants in the court’s other 55 cases for the day (all wondering, ugh, why cameras today?), Jackley chatted lightly, smiled, and occasionally chuckled quietly with Kempema and the female assistant at the state’s table.
Joop Bollen arrived a few minutes later. He entered smiling, in blue jeans and a blue sweater. The sleeves had brown patches, but Bollen had pushed those sleeves above his elbows. Reading glasses hung carelessly on his chest at the bottom of an unbuttoned V collar, which lay flat around his neck. On his left hand, Bollen wore a gold watch and gold wedding band. Bollen sat calmly in the back pew, away from counsel, chatting with no one.
Fifth Circuit Magistrate Judge Mark A. Anderson entered at 9:30, with admonishments to turn off phones and take off hats. As the audience resettled, Bollen slipped forward to sit next to his attorney. Anderson called Bollen’s case first, and Bollen and Rasmussen came to the defense podium.
Judge Anderson read the charges, five Class 6 felony counts of “destruction, disposal, or removal of personal property subject to security interest.” Judge Anderson asked if Bollen understood the charges; “Yes,” said the defendant, his only utterance in the brief hearing. Bollen nodded during the judge’s reading of the defendant’s rights and plea options. Bollen tilted his head slightly, curiously, during the judge’s explanation of nolo contendre. Prompted by Judge Anderson, attorney Rasmussen asked for a preliminary hearing. Judge Anderson set that hearing for Friday, May 13, at 2 p.m.; defense and state assented. Judge Anderson then moved on to case #2 of 56.
Bollen and Rasmussen left the courtroom without comment. The press followed Attorney General Jackley across the street to a conference room in the Brown County state’s attorney’s office, where the A.G. opened not with a prayer but with an explanation of the charges against Bollen. He likened the appropriation of funds from the indemnification fund required by Bollen’s contract with the state to improperly converting a car or house loan to personal use. He addressed concerns that it seemed to have taken his office a long time to get to these charges by noting that this prosecution stems from new information discovered on December 23 (almost Christmas Eve, Jackley noted), 2015. Jackley said that new information arose from other civil proceedings, likely referring to the state’s lawsuit against Bollen’s EB-5 company to obtain cash and documents.
Responding to questions from the press, Jackley said that Bollen has thus far cooperated by turning himself in voluntarily. Bollen is free an an unsecured $2,500 bond (one thirteenth of what Bollen made last year on the TIF bonds he allegedly purchased with illegally appropriated funds). The state has not asked the well-traveled Bollen to surrender his passport; Jackley said that “at this point” he “not have concern” about the passport, “as long as we’re made aware of certain travel,” since Bollen has “significant ties financially to this community.”* Asked if Bollen’s cooperation has extended to answering questions or sharing documents, Jackley deferred to defense counsel.
Jackley would not go beyond the contents of the probable cause affidavit to explain when and how the bulk of the misappropriated funds were replenished, nor could he say where the remaining $166,606.89 Bollen allegedly took from the indemnification fund may be. Promising more details would come later in the trial, Jackley said that as a general concept, even if a defendant gives back improperly taken money, the defendant has still committed a crime, but the restoration of funds could mitigate the punishment. Emphasizing regularly that the defendant is innocent until proven guilty, Jackley declined to say exactly what penalty he would seek for the alleged crimes. He noted that Senate Bill 70 (2013) requires a presumption of probation for “lower-level felonies.” If convicted, Bollen is thus unlikely to see bars.
Jackley said he is not able to talk specifics at this point about Pyush Patel, Bollen’s partner in SDRC Inc., who is named in the probable cause affidavit as receiving some of the improperly transferred funds. Jackley repeated what he said at last night’s Brown County GOP Lincoln Day dinner, that what we are seeing now is an “initial charging decision.”
Asked if the new information that prompted these charges might prompt a new look at matters like whether Bollen dodged $2.4 million in bank franchise tax, the Attorney General said his office will look into any evidence of criminal activity. Speaking in more vague generalities, Jackley said that even if evidence of mischief doesn’t lead to criminal charges, it can be used as Rule 404(B) evidence in other proceedings to strengthen the case against the defendant.
The probable cause affidavit alleges that Bollen and Patel bought TIF bonds on the EB-5-funded Northern Beef Packers with improperly appropriated (can we say stolen yet?) funds. Asked whether the improper origin of the purchasing funds could compel the defendant to forfeit those bonds, Jackley offered no answer and deferred to local authorities.
Today’s hearing and press conference offered little new information about what happened behind Bollen’s corporate armor. But Jackley’s statement about “initial” charges suggests he’s looking for more holes in that armor.
*Update 2016.04.02 08:46 CDT: Hub City Radio posts audio of the full 25-minute press conference with the Attorney General. I have updated and extended my quote from A.G. Jackley on Bollen’s freedom to travel based on that audio.