Bollen Pleads Not Guilty; Jury Trial Likely After 2016 Election, May Delay Civil Proceedings

In a genial and uncontroversial hearing at the Brown County Courthouse this morning, Joop Bollen, dressed in a thin grey polo shirt, well-worn blue jeans, and sockless red dock shoes, spoke eleven words in his distinctive Dutch accent: “Yes, your honor” twice, “No, you Honor” when asked if he had been coerced in his plea, and “Not guilty” when asked how he pleads to five counts of “unauthorized disposal of personal property subject to security interest”—i.e., using EB-5 program money he was supposed to keep locked up for the state as his personal ATM.

Bollen’s attorney, Reed Rasmussen, who as a Midwesterner has no accent, said Bollen wants a jury trial. Rasmussen and Deputy Attorney General Paul Swedlund agreed that the trial should take five days. Judge Tony Portra offered to set a date for this trial, but Swedlund noted that he did not have his absent co-counsel Brent Kempema’s calendar available. Judge Portra thus said the parties would work out a trial schedule by e-mail.

Given the complexity of the case, Judge Portra asked if the defense wanted to waive the 180-day rule. Rasmussen said that was fine, and Portra ballparked trial time for the fall… although if those 180 days start counting today and the trial might not happen until afterward, we’re talking about a trial in State v. Bollen (06CRI16-000383), after the general election, into snow season.

After the judge adjourned, Bollen turned to my daughter and said, “Was that interesting?” She didn’t speak then, but she told me afterward it was interesting. Maybe we’ll luck out and the big trail will happen during Christmas break.

A late 2016 criminal trial could mean no action on the state’s civil suit against Bollen’s EB-5 management company, SDRC Inc., until next year. Bollen’s other main legal squeeze, Jeff Sveen, filed a motion on May 17 to stay the civil proceedings (State v. SDRC Inc, 32CIV15-000270) against Bollen’s company until after the criminal proceedings discussed today are complete:

Note that Sveen refers to Bollen in this motion as “the same person” as the subject of both State v. SDRC Inc and State v. Bollen. We all know that, practically, Joop Bollen and SDRC Inc. are the same person, but couldn’t Sveen’s acknowledgment of that fact have some legal ramifications for whatever liability may arise in these trials and in the EB-5 investors’ lawsuit (32CIV15-000312) against the state and SDRC Inc?

Bollen appears to have put a stay on cooperating with the state in that civil proceeding. On May 20, Special Assistant Attorney General Paul Bachand told the Sixth Circuit that Bollen has “failed or refused to provide answers or responses” to “written interrogatories and request for production of documents” served on February 22. (That’s more than a month before the state filed criminal charges against Bollen.) Bachand asked the court to compel Bollen to respond within ten days, pay for the hassle of filing this motion to compel, and whack Bollen with any other sanction the court feels appropriate.

Bollen has offered to put $817,603.33 into the Indemnification Fund One that his SDRC Inc. contract with the state’s office of economic development required him to maintain to handle any claims that arose from his EB-5 activities on behalf of the state. Interestingly, Bollen appears to have found this money available thanks to a conversation about his income taxes with Donald Kainz, partner at Eide Bailly LLC:

Bollen doesn’t want to pay income tax on that $817K, so why fight? Call it the state’s money, and hand it over! (Why didn’t I think of that when I did my 1040?)

However, according to a May 24 filing from Bachand, Bollen said he will surrender that money to the state only if…

1. the state accepts that deposit as all that Bollen owes the state;
2. the state holds Bollen harmless from any liability arising from that deposit; and
3. the state drops any effort to get Bollen to pay any legal fees for the state from Indemnification Fund Two.

Bachand’s May 24 filing says nuts to that, demands that Bollen surrender that $817,603.33, and tells Bollen to be ready to turn over more if the state finds he owes more.

When I checked the court records yesterday, I found no orders from the judge, likely because we keep having to change judges. First Judge Mark Barnett stepped aside; then Judge Kathleen Trandahl stepped aside in May. A May 26 order indicates that Judge John Brown is the new substitute judge in the state’s civil case against SDRC Inc. and in the LP 6 Claimants case. Judge Brown has some reading to do, so the hearing on Bollen’s motion to stay and the state’s motion to compel will take place Monday, June 27, 9:30 a.m. Mountain, at the Stanley County Courthouse in Fort Pierre.