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Bollen Loses Two Pre-Trial Motions; Portra Still Weighing Motion to Dismiss

We would like to blame Mr. Sveen, but we’re not going to do that.

—Reed Rasmussen, attorney for the defense, saying the second-most interesting thing I heard all day in oral argument, State of South Dakota v. Joop Bollen, 2016.12.29.

Bollen and the A.G.'s lieutenants return to the Brown County Courthouse February 7, 2017, for the big trial.
Bollen and the A.G.’s lieutenants return to the Brown County Courthouse February 7, 2017, for the big trial.

Joop Bollen did not have a good day in court. He didn’t have a rotten day; he just didn’t win on any of the pre-trial motions heard today by Judge Tony L. Portra at the Brown County Courthouse here in Aberdeen.

Recall that last March, the state charged Bollen with five felony counts of misusing money he was supposed to keep in the bank for the state to use if it ran into legal trouble in its use of the EB-5 visa investment program. Bollen pled not guilty last June.

Bollen came to court today in jeans and a tan, hooded work jacket, with sleeves pushed up, showing the dark hair on his lean arms. He sat alone at the defense table ten minutes before the hearing’s scheduled beginning at 1 p.m. Two pews back sat his current wife, his ex-wife, and his older son. When the attorneys emerged from the judge’s chamber at 1:10 p.m., Bollen’s attorney Reed Rasmussen took Bollen out of the courtroom to converse private for five minutes. They returned five minutes later, with Bollen looking appropriately serious. Judge Portra entered a couple minutes later. During Rasmussen’s statements, Bollen frequently watched the judge intently and nodded to reinforce his attorney’s points. On one occasion, Bollen silently mouthed “No” toward the judge in response to one of Rasmussen’s rhetorical questions attacking the state’s arguments. While Assistant Attorney Generals Paul Swedlund and Brent Kempema spoke, Bollen fixed his grave gaze on them. In apparent response to the state’s statements, Bollen occasionally whispered serious and vigorous corrections and rebuttals to Rasmussen.

No Ruling Yet on Motion to Dismiss

Judge Portra took no action on the big motion heard today, the defense motion to dismiss. Bollen’s attorney Reed Rasmussen contends that the contract the state signed with Bollen to run its EB-5 program didn’t specifically create a “security interest” on the bank account from which Bollen briefly borrowed significant sums for personal use. Even if the state and Bollen had signed a contract so obligating the account in question, Bollen’s dips in the till happened in 2012, at which time there were no EB-5-related claims against the state. The money’s there now, so, no harm, no foul.

Representing the state, Assistant Attorney General Paul Swedlund said the 2009 South Dakota/SDRC contract required Bollen to have one million dollars in the bank by December 31, 2011. He argued the contract didn’t have to name bank accounts that didn’t exist yet. Establishing a security interest, says the state, only requires saying what the secured collateral is (in this case, a million bucks), not where it is (in this case, a Wells Fargo account referred to in court as “Contingency Account 3”).

Rasmussen also argued that the statute under which Bollen is charged, SDCL 44-1-12, is unconstitutional, since it does not include an intent to defraud as a condition for guilt. Swedlund responded that the defense’s interpretation hinges on dicta (a judge’s side comment, not integral to the ruling) from a civil foreclosure case and that South Dakota law says what it says: if Bollen “willfully” transferred money that should not have been transferred, he’s guilty.

Judge Portra took the arguments under advisement and promised a written ruling later.

Portra Grants Non-Controversial Motions—No Blaming Sveen

Judge Portra did rule on several motions affecting procedure and evidence in the trial, assuming he does not grant the defense motion to dismiss. Five motions generated no controversy. Potential jurors will get a supplemental questionnaire; Assistant Attorney General Brent Kempema said the state may want additional information for background checks. Both sides agreed to provide written reports from any expert witness. They will provide witness lists and tangible evidence by January 31, one week before the trial begins. The defense also agreed to the state’s motion to exclude evidence on third-party perpetrators. Essentially, Bollen is saying he’s not going to try blaming someone else for the crime. That motion brought Rasmussen’s comment about blaming his law partner Sveen. All parties at the big tables laughed, and the motions rolled on.

State Can Tell Jury What Bollen Bought

The defense objected to the state’s motion to introduce evidence on how Bollen spent the borrowed money. Bank records in the court papers indicate Bollen used the money to buy Egyptian antiquities and some TIF bonds on the EB-5-funded Northern Beef Packers packing plant in Aberdeen. The defense argued that the state would object to any evidence that the defendant gave the money to charity, so it’s no more relevant to tell the jury that Bollen spent the money on luxuries and bonds. The defense says the state just wants to paint Bollen as “some rich guy” and thus impose an unfair prejudice on his client.

A.A.G. Kempema says the state has to be able to show the jury that Bollen used the money for purposes outside his contractual duties to the state. Judge Portra agreed, allowing the state to present its evidence to the jury. However, Judge Portra agrees with the defense that the use of the money is irrelevant to guilt and that he will consider giving the jury instructions that limit how they consider that evidence.

Portra Blocks Defense from Exposing State Corruption

The final motion considered today was the state’s request that the court block the defense from introducing evidence to the jury that the state’s prosecution of Bollen is improperly motivated. Let me emphasize: this motion is a pre-emptive strike from the state.

The defense contends that the state brought criminal charges to retaliate against Bollen. The defense claims that the state is mad that Bollen wouldn’t sign a new security agreement over SDRC Inc. funds that the defense says by contract belong to SDRC Inc. The defense also argues that the state is mad that Bollen has filed a counterclaim against the state in its pending civil case.

Kempema argued that letting the defense make that argument to the jury creates an unworkable “trial within a trial.” Kempema said the jury’s job is to determine the defendant’s guilt or innocence, not the state’s. Kempema said SDCL 23A-8-3 directs challenges of the prosecution’s integrity to the judge before trial.

Kempema further argued that the defense has shown no “credible showing of differential treatment” of Bollen… although as Rasmussen said, that’s kind of hard to do, since he said the state’s case against Bollen “is like no other one that I’ve been able to find.”

Rasmussen said the defense at least wants a jury instruction pertaining to the state’s motives for dragging Bollen into court. The defense also asked for a discovery order so it could depose the Governor’s Office of Economic Development, the Governor’s Office, and the state banking commission and “find out what’s going on behind the scenes in Pierre.”

For a breathless moment, this reporter looked up at the bench and thought, “Holy cow, let the defense go to Pierre!”

Declining to rule that telepathic outburst in contempt, Judge Portra turned instead to the defense and said that GOED and the Governor do not charge people with crimes. The Attorney General, an independently elected official, decides whom to prosecute.

“That’s the way it’s supposed to work,” said Rasmussen. “I’m not sure that it did.” (That’s the most interesting thing I heard all day: Joop Bollen’s lawyer signaling that Joop Bollen may be the victim of corruption in South Dakota government.)

After a heavy pause, Judge Portra granted the state’s motion to quash defense arguments about the prosecution’s motives, saying the state’s intent does not make the Joop Bollen guilty.

Barring a ruling to dismiss, Joop Bollen’s trial remains on schedule for Tuesday, February 7, at the Brown County Courthouse. Judge Portra alluded to the possibility that results of the supplemental jury questionnaire could induce the defense to move for a change of venue.

10 Comments

  1. moses6 2016-12-29 19:46

    joop joop duke of earl joop joop

  2. grudznick 2016-12-29 19:58

    Mr. H, it is wonderful that you can spend your holiday time off sitting and watching these kinds of interesting goings on. I, for one, appreciate the detail with which you paint us the pictures in our minds. I like also how you take the now absent Mr. Mercer’s lines about “this reporter looked at the judge breathlessly and…” the way he did when he was reporting for the newspapers. Until he can return I would hope that you can attend many of the same goings on he did and keep painting the pictures in our minds.

  3. Rorschach 2016-12-29 20:22

    So now I’m unclear about one thing. Does the money belong to the state, or to SDRC? Is it SDRC’s money if there are no claims against it, or does the state get it – claims or none?

  4. caheidelberger Post author | 2016-12-29 21:46

    Ror, just wait until the jury tries figuring it out. Some of the funds belong to the state; however, one of the funds (I need to review the contract and the court papers) reverts back to SDRC Inc. six years and sixty days after the end of the contract (which would be November 2019… perhaps the date of Mike Rounds’s reëlection campaign kick-off party).

  5. caheidelberger Post author | 2016-12-29 21:54

    Grudz, I was thinking about Mercer when that line came to mind. I hope he’s back in the saddle soon.

  6. Roger Cornelius 2016-12-29 22:18

    Excellent reporting Cory.

    Is there a paper trail of how Bollen paid the state back for the NBP TIF bonds and the Egyptian antiquities?
    Did that money come out of his own pocket or another buried account?

  7. moses6 2016-12-29 23:14

    is there like 155 million some where or is that the myth or the legend

  8. Mark Winegar 2016-12-30 04:40

    Grandma used to say, “Oh what a tangled web we weave when we first practice to deceive.”

  9. caheidelberger Post author | 2016-12-30 08:18

    Roger, the court file includes several bank statements showing money in and out of the accounts in question. I’ll need to review them to see if they show where Bollen got the money to replenish the dipped-into funds.

  10. Porter Lansing 2016-12-30 20:05

    The state’s intent does not make Joop Bollen guilty. The state’s intent makes the Governor and GOED guilty. Of course direction was given to the AG. Depose ’em. he he he

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