Bovensiep v. Dean Borders

Filing 24

REPORT AND RECOMMENDATION Denying 10 Amended Petition for Writ of Habeas Corpus filed by Thomas Daniel Bovensiep. Objections to R&R due by 11/9/2018 ; Replies due by 11/30/2018. Signed by Magistrate Judge Nita L. Stormes on 10/24/18.(All non-registered users served via U.S. Mail Service)(dlg)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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THOMAS DANIEL BOVENSIEP,

Case No.: 17cv0074-GPC (NLS)

Petitioner,

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REPORT AND RECOMMENDATION
OF UNITED STATES MAGISTRATE
JUDGE RE: DENYING PETITION
FOR WRIT OF HABEAS CORPUS

v.
DEAN BORDERS, Warden,

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Respondent.

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Thomas Daniel Bovensiep is a state prisoner proceeding pro se with a First Amended

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Petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (ECF No. 10.) He

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challenges his San Diego County Superior Court convictions for thirteen counts of grand

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theft and two counts of securities fraud, for which he was sentenced to nine years and four

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months in state prison. (Id. at 1-2.) He claims here, as he did in state court, that his federal

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constitutional rights to due process, fundamental fairness, and a speedy trial were violated

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by the pre-charging (claim one) and post-charging delays (claim two) in his prosecution.

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(Id. at 6-7, attach. # 1 at 1-6; see ECF No. 18 at 4 (finding remaining claims abandoned).)

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Respondent has filed an Answer (ECF No. 19), and has lodged portions of the state

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court record (ECF Nos. 15, 20). Respondent contends federal habeas relief is unavailable

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because the state court adjudication of Petitioner’s claims is neither contrary to, nor an

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unreasonable application of, clearly established federal law, nor based on an unreasonable
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determination of the facts in light of the evidence presented in the state court proceedings.

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(Answer at 2; Memo. of P&A in Supp. of Answer [“Ans. Mem.”] at 5-17.)

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Petitioner has filed a Traverse. (ECF No. 23.) He contends the state appellate court

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erred in finding that the only delay which was not attributable to him was brief and non-

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prejudicial, and that he would not have been found guilty but for the destruction of evidence

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caused by delays attributable to the prosecution. (Id. at 1-12.)

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As set forth below, the Court finds the state court adjudication of Petitioner’s claims

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is neither contrary to, nor an unreasonable application of, clearly established federal law,

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nor based on an unreasonable determination of the facts. Even if Petitioner could satisfy

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that standard, he has not alleged facts which, if true, demonstrate a violation of his federal

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constitutional rights. The Court recommends the Petition be denied.

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I.

PROCEDURAL BACKGROUND

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In a 27-count Amended Complaint filed in the San Diego County Superior Court on

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December 9, 2013, Petitioner was charged with eighteen counts of grand theft in violation

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of California Penal Code § 487(a), three counts of misrepresentation in the sale of securities

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in violation of California Corporations Code §§ 25401 and 25440, and six counts of filing

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a false tax return in violation of California Revenue and Taxation Code § 19705(a)(1).

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(Lodgment No. 5, Clerk’s Transcript [“CT”] at 9-21.) The Amended Complaint alleged as

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sentence enhancements that the amount stolen exceeded $65,000 within the meaning of

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Penal Code § 12022.6(a)(1) with respect to six of the grand theft counts, and exceeded

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$100,000 within the meaning of Penal Code § 186.11(a)&(b), and $150,000 within the

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meaning of Penal Code § 12022.6(a)(2), as to one of the grand theft counts. (Id.)

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On March 17, 2015, a jury found Petitioner guilty of fourteen counts of grand theft

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and one count of fraudulent sale of securities, not guilty on the remaining counts, and made

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true findings on three sentence enhancement allegations. (CT 507-34.) On May 29, 2015,

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he was sentenced to nine years and four months in state prison. (CT 732-34, 843-46.)

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Petitioner appealed, raising the same claims presented here. (Lodgment No. 1.) The

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appellate court affirmed in all respects. (Lodgment No. 2, People v. Bovensiep, No.
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D068198, slip op. (Cal.App.Ct. Aug. 22, 2016).) On September 21, 2016, he filed a

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petition for review in the California Supreme Court presenting the same claims, which was

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summarily denied on October 26, 2016. (Lodgment Nos. 3-4.)

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II.

UNDERLYING FACTS

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The following statement of facts is taken from the appellate court opinion on direct

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appeal. This Court gives deference to state court findings of fact and presumes them to be

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correct. Sumner v. Mata, 449 U.S. 539, 545-47 (1981).

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Because the parties are familiar with the facts, we summarize only the
general facts concerning the underlying crimes at issue in this appeal. We
present additional facts concerning the speedy trial and statute of limitation
issues in our discussion below.
Ronald Dixon—Count 1

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In 2003, Bovensiep persuaded his pastor, Craig Knudsen, and Steven
Zoumaras, a business acquaintance, to purchase shares in a limited liability
company (LLC) for the purpose of purchasing a condominium located in
Hawaii (the 835 property). Unbeknownst to the partners, Bovensiep listed his
brother-in-law, John Oakes, as the owner telling Oakes that he wanted to use
Oakes’s good credit. Bovensiep told Oakes, who was not in on the scheme,
that he would put the loan in the LLC’s name, removing Oakes, as soon as
Bovensiep refinanced the property. Bovensiep secretly refinanced the 835
property and took out a line of credit of over $114,000, but left Oakes listed
as the owner of the property.
Dixon, who had met Bovensiep through Oakes and his church, bought
Zoumaras’s interest in the 835 property for a total of $117,578 in June 2005.
On Thanksgiving Day 2009, Dixon learned that the 835 property was being
foreclosed.
The Kneeshaws—Count 7

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George Kneeshaw and his wife, Terry, have known Bovensiep for over
35 years. George and Bovensiep had worked as deputy sheriffs together and
they remained friends. In September 2007, the Kneeshaws, along with other
individuals each invested about $60,000 toward the purchase of a
condominium in Kihei, Maui (the Kihei property). Bovensiep managed the
Kihei property. On December 5, 2009, the Kneeshaws learned that the Kihei
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property was facing foreclosure. At the end of December 2009, George
reported the matter to the sheriff’s department for a potential criminal
investigation.

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The Kneeshaws—Counts 5, 8–11
Bovensiep convinced the Kneeshaws to make a series of four separate
loan investments, supposedly to people in need. The Kneeshaws were to
receive monthly interest and a return of their principal after a specified time.
Bovensiep made some interest payments, but never repaid the principal.
Bovensiep later admitted to Trudianne Bullard, an investigator for the district
attorney’s office (DA), that he used the money himself to keep his scheme
afloat.
Frederick Semeit—Count 12

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Semeit, the Kneeshaws’ son-in-law, believed he could trust Bovensiep
as Bovensiep seemed like a really nice guy. Semeit purchased two homes
using Bovensiep’s services and also obtained a $5000 loan from Bovensiep,
which Semeit repaid. After Semeit divorced, he gave Bovensiep a $10,000
down payment in February 2008 for a house. When the purchase allegedly
fell through, Semeit gave Bovensiep another $15,000 and let Bovensiep keep
his initial $10,000 with the understanding that Bovensiep would pay Semeit
interest on the money and the debt would mature in November 2008. Semeit
gave Bovensiep another $20,000, with a maturity date in October 2008.
Semeit believed Bovensiep would be loaning the funds to a third party.
Bovensiep never repaid Semeit.

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Chris Miller—Count 13
In April 2008, Miller, a church friend of Bovensiep, gave Bovensiep a
$48,000 down payment to purchase a condominium for Bovensiep to manage.
Bovensiep eventually told Miller that escrow on the property had been
cancelled and he would give Miller his money back. Bovensiep never paid
Miller back. Bovensiep admitted to Bullard that when he got money from
Miller, he used it to pay someone else who had loaned him money and “lied”
to Miller about where Miller’s money was going.
Robert Stevens—Count 18

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Karen Taylor’s husband had invested money with Bovensiep and spoke
very highly of Bovensiep. Taylor believed Bovensiep took the money to
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extend loans to third parties. Taylor referred two of her sisters, Laura Colling
and Marsha Allen, and her best friend Diane Mullins to Bovensiep. Allen in
turn referred her friend Patricia Osborne to Bovensiep. Mullins referred
Stevens, her father, to Bovensiep.

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In January 2007, Stevens invested $25,000 with Bovensiep and was to
receive monthly interest and return of his principal after a specified time.
Bovensiep never paid Stevens back. Bovensiep later admitted to Bullard that
he led Stevens and others to believe the loans were for third parties, but that
he used the money to keep his other schemes afloat.

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(Lodgment No. 2, People v. Bovensiep, No. D068198, slip op. at 2-4.)

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III.

PETITIONER’S CLAIMS

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(1) Petitioner alleges he was denied his “Federal Constitutional right to [a] speedy

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trial including where there has been a substantial and/or prejudicial delay prior to

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accusatory pleading,” and that the delays resulted in the destruction of exculpatory

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evidence which violated his rights to due process and fundamental fairness under the Sixth

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and Fourteenth Amendments. (ECF No. 10 at 6; ECF No. 10-1 at 1-6.)

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(2) Petitioner alleges he was denied his Fifth, Sixth and Fourteenth Amendment

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rights to due process, fundamental fairness and a speedy trial by the destruction of

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exculpatory evidence caused by “‘unjustified’ and ‘negligent’ delays in an already ‘old

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case’” by the prosecution after he was charged. (ECF No. 10 at 7; ECF No. 10-1 at 1-6.)

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IV.

DISCUSSION

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As set forth herein, the Court finds that the state court adjudication of Petitioner’s

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claims is neither contrary to, nor an unreasonable application of, clearly established federal

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law, nor based on an unreasonable determination of the facts. The Court also finds that

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even if he could satisfy that threshold showing, federal habeas relief is not available

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because he has not alleged facts which, if true, show a federal constitutional violation.

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A. Standard of Review

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In order to obtain federal habeas relief with respect to a claim which was adjudicated

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on the merits in state court, a federal habeas petitioner must demonstrate that the state court

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adjudication of the claim: “(1) resulted in a decision that was contrary to, or involved an
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unreasonable application of, clearly established Federal law, as determined by the Supreme

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Court of the United States; or (2) resulted in a decision that was based on an unreasonable

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determination of the facts in light of the evidence presented in the State court proceeding.”

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28 U.S.C.A. § 2254(d) (West 2006). Even if § 2254(d) is satisfied, a petitioner must show

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a federal constitutional violation occurred in order to obtain relief. Fry v. Pliler, 551 U.S.

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112, 119-22 (2007); Frantz v. Hazey, 533 F.3d 724, 735-36 (9th Cir. 2008) (en banc).

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A state court’s decision may be “contrary to” clearly established Supreme Court

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precedent (1) “if the state court applies a rule that contradicts the governing law set forth

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in [the Court’s] cases” or (2) “if the state court confronts a set of facts that are materially

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indistinguishable from a decision of [the] Court and nevertheless arrives at a result different

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from [the Court’s] precedent.” Williams v. Taylor, 529 U.S. 362, 405-06 (2000). A state

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court decision may involve an “unreasonable application” of clearly established federal

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law, “if the state court identifies the correct governing legal rule from this Court’s cases

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but unreasonably applies it to the facts of the particular state prisoner’s case.” Id. at 407.

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In order to satisfy § 2254(d)(2), the factual findings upon which the state court’s

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adjudication of his claims rest must be objectively unreasonable. Miller-El v. Cockrell,

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537 U.S. 322, 340 (2003).

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B.

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Petitioner alleges in claim one that he was denied his “Federal Constitutional right

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to [a] speedy trial including where there has been a substantial and/or prejudicial delay

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prior to accusatory pleading.” (ECF No. 10 at 6.) He contends the delay resulted in the

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destruction of exculpatory evidence in violation of his rights to fundamental fairness and

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due process under the Sixth and Fourteenth Amendments. (ECF No. 10-1 at 1-6.)

Claim One (Pre-Charging Delay)

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Respondent answers that the state court correctly found that a federal constitutional

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right to a speedy trial is not implicated by pre-charging delay, but such a claim is properly

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analyzed as a due process claim, and the state court determination there was no due process

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violation arising from pre-charging delays is consistent with clearly established federal law

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and is not based on an unreasonable determination of the facts. (Ans. Mem. at 6-12.)
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Petitioner replies that the prosecution’s investigator spent only 65 days investigating

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his case during a period of more than three years prior to bringing charges, that the trial

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court found a six-month delay in assigning an investigator to be “unjustified” and the result

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of “prosecution neglect,” yet the appellate court erroneously denied this claim on the basis

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that even if the six-month delay caused destruction of evidence it did not prejudice the

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defense because the destroyed evidence was not exculpatory. (Memo. of P&A in Supp. of

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Traverse at 2-5.) He argues that the appellate court’s findings that the delay was short and

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did not violate federal due process involves an unreasonable determination of the facts

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regarding the length of the delay and whether it caused the destruction of the evidence, and

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involves an unreasonable application of clearly established federal law which provides that

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any excessive delay before an arrest or the filing of an accusatory pleading violates federal

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due process because it is impossible to determine who is prejudiced from the delay. (Id.)

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As set forth below, a criminal complaint was first filed with the San Diego Sheriff’s

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Department on December 30, 2009, which was referred to the District Attorney’s office in

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February or April 2010, and an investigator was assigned in October 2010. Petitioner was

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arrested on January 29, 2013, after a two-year, three-month investigation, and was charged

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on February 13, 2013. The prosecution’s position at trial was that the criminal nature of

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the offenses was first discovered by the victims on December 9, 2009, when Petitioner

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admitted to them he had used their money for personal reasons, and the issue of discovery

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as it related to the four-year statute of limitations was presented to the jury.

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Petitioner claimed in the state appellate and supreme courts, as he does here, that

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(1) the victims knew or should have known prior to February 2009 of the criminal nature

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of the offenses, which involved transactions primarily occurring in 2006-08, and therefore

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the prosecution, which began in February 2013, was barred by the four-year statute of

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limitations, and (2) the delay in bringing charges was attributable to: (a) the failure of the

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victims to timely notify law enforcement, (b) the ten-month delay from when the criminal

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complaint was filed until the District Attorney appointed an investigator, and (c) an

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additional three to four-month delay in requesting search warrants, all of which resulted in
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the unavailability of bank documents which are routinely destroyed every seven years, as

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well as documents kept in a storage locker by Petitioner which were destroyed as a result

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of his inability to pay the storage fee as a result of the loss of his job upon his arrest. (See

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Lodgment Nos. 1, 3.) The claim was summarily denied by the state supreme court, and the

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appellate court denied it on the merits. (Lodgment Nos. 2, 4.)

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“Where there has been one reasoned state judgment rejecting a federal claim, later

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unexplained orders upholding that judgment or rejecting the same claim rest upon the same

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ground.” Ylst v. Nunnemaker, 501 U.S. 797, 803-06 (1991). The Court will look through

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the silent denial by the California Supreme Court to the last reasoned state court decision

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addressing this claim, the appellate court opinion on direct appeal, which stated:
Bovensiep complains about prosecutorial delay in charging him. Delay
in charging a defendant after commission of an alleged crime (pre-charging
delay) does not implicate speedy trial rights. (People v. Nelson (2008) 43
Cal.4th 1242, 1250 (Nelson).) The federal right to a speedy trial attaches only
after an arrest or the filing of an indictment or information, although
California extends the right by holding that it attaches after a complaint has
been filed. (United States v. Marion (1971) 404 U.S. 307, 320; People v.
Mirenda (2009) 174 Cal.App.4th 1313, 1327.)
Here, Bovensiep sought to dismiss the charges against him based on
alleged delays in charging him. Bovensiep never sought a dismissal based on
post-charging delay. Notably, the record shows that after charges were filed,
Bovensiep requested numerous continuances of the preliminary hearing and
three trial continuances. Under these facts, Bovensiep waived his right to a
speedy trial. (People v. Wilson (1963) 60 Cal.2d 139, 146 (the constitutional
or statutory right to a speedy trial may be waived if not asserted prior to
commencement of trial).) Accordingly, we focus on Bovensiep’s claim of
pre-charging delay.

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A. Additional Background
Before trial, Bovensiep sought to dismiss the case based on violation of
his rights to due process and speedy trial, claiming the delay resulted in the
loss of bank documents destroyed in the normal course of business and the
loss of all records he kept in a storage facility. The trial court deferred
consideration of the motion until after trial, so as to better assess any resulting
prejudice to Bovensiep. Following trial, Bovensiep again moved to dismiss
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the action based on the alleged constitutional violations. The trial court denied
the motion. The court noted that by the People’s own admission, the case had
“sat around” from April or May 2010 to October 2010. Nonetheless, it
concluded this unjustified delay did not result in any prejudice as this delay
did not cause the missing documents. The trial court found that the great age
of the case was primarily attributable to how long it took the victims to
discover Bovensiep’s possible criminal activities and bring him to the
attention of law enforcement.

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B. Legal Principles

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California’s due process clause states, in part, that “(p)ersons may not
. . . be deprived of life, liberty, or property without due process of law.” (Cal.
Const., art. I, § 15.) Pre–charging delay is analyzed as a due process claim.
(Scherling v. Superior Court (1978) 22 Cal.3d 493, 505.) “The due process
clause does not permit courts to abort criminal prosecutions simply because
they disagree with a prosecutor’s judgment as to when to seek an indictment.
Rather, the task of the reviewing court is to determine whether pre-charging
delay violates the fundamental conceptions of justice which lie at the base of
our civil and political institutions and which define the community’s sense of
fair play and decency. Prosecutors are under no duty to file charges as soon
as probable cause exists but before they are satisfied they will be able to
establish the suspect’s guilt beyond a reasonable doubt.” (People v. Dunn–
Gonzalez (1996) 47 Cal.App.4th 899, 914.) “(T)o prosecute a defendant
following investigative delay does not deprive the defendant of due process,
even if his or her defense might have been somewhat prejudiced by the lapse
of time.” (Id. at p. 915.)

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We employ a three-part test to determine if a defendant’s due process
right to a fair trial has been violated because of pre-charging delay: “(1) the
defendant must show that he has been prejudiced by the delay, whereupon (2)
the burden shifts to the People to justify the delay, and (3) the court balances
the harm against the justification.” (People v. Pellegrino (1978) 86
Cal.App.3d 776, 779.) Prejudice from pre-arrest delay is not presumed.
(Nelson, supra, 43 Cal.4th at p. 1250.) To avoid criminal charges on this
basis, the defendant “must affirmatively show prejudice.” (Ibid.; People v.
Martinez (2000) 22 Cal.4th 750, 767.)
“(W)hether the delay was negligent or purposeful is relevant to the
balancing process. Purposeful delay to gain an advantage is totally
unjustified, and a relatively weak showing of prejudice would suffice to tip
the scales towards finding a due process violation. If the delay was merely
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negligent, a greater showing of prejudice would be required to establish a due
process violation.” (Nelson, supra, 43 Cal.4th at p. 1256.) We review the
trial court’s ruling on a motion to dismiss for prejudicial pre-charging delay
for abuse of discretion, deferring to any underlying factual findings supported
by substantial evidence. (People v. Cowan (2010) 50 Cal.4th 401, 431.)
Whether a defendant met the initial burden of showing prejudice is a factual
question for the trial court. (People v. Hill (1984) 37 Cal.3d 491, 499.)
C. Analysis

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Bovensiep was unable to provide records regarding his bank account
prior to December 21, 2007, because these documents had been destroyed by
his bank in the normal court of business. Bovensiep kept his internal financial
and accounting records in a storage facility. All of these records were
destroyed in September 2013 when a storage unit he had leased was seized for
nonpayment. Bovensiep argued below that the bank records and the records
in the storage facility would have shown he used the victim’s funds in the
normal course of his real estate business, and that he told some of the victims
that he took their money not to lend to third parties, but to keep his businesses
afloat.
The prosecution learned that Bovensiep may have committed a crime
on December 30, 2009, when George Kneeshaw filed a report with the
sheriff’s department. It is unclear when the sheriff’s department referred the
matter to the DA. The prosecutor represented to the court that the DA
received the case in April 2010. However, the People’s opposition papers and
a timeline prepared by Bullard indicate the DA received the matter in February
2010.
In May 2010, a deputy district attorney contacted George Kneeshaw
about the matter. Thereafter, there was about a four-month delay until the DA
referred the matter to Bullard in October 2010. The prosecutor speculated that
the unavailability of an investigator caused this delay, but presented no
evidence on the issue. On this basis alone, the trial court properly found this
four-month delay unjustified. The trial court concluded, however, that this
unjustified delay did not cause the missing documents; thus, Bovensiep was
not prejudiced by the delay. Substantial evidence supports this conclusion.
Records from the storage facility show Bovensiep habitually failed to
timely pay the rental fee from June 2008 until the time the storage facility
notified him in March 2013 that the stored property would be sold. The
documents in the storage facility went to auction in August 2013, but were not
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actually destroyed until September 2013. Notes from the storage facility show
that Bovensiep intentionally allowed the contents of the unit to go to auction.
Bovensiep was arrested on January 29, 2013, and interviewed the following
day. Accordingly, Bovensiep had adequate time to inform the prosecution of
the importance of these documents before the storage facility had them
destroyed. The trial court correctly found that any pre-charging delay did not
result in the destruction of the storage facility documents. (People v. Cowan,
supra, 50 Cal.4th at p. 432 (a suspect who, knowing of police interest, fails to
preserve alibi evidence in his control, cannot complain that a delay in charging
violated his due process rights).)
The parties stipulated that Bovensiep’s bank retained its records for
seven calendar years, that the bank destroyed the records on a rolling basis,
and that the missing bank records had been destroyed in the normal course of
bank business. As a result, Bovensiep was unable to provide records
regarding his bank account prior to December 21, 2007. Thus, the unjustified
four-month delay in getting the case assigned to an investigator resulted in the
loss of a portion of the bank records.

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As the trial court noted, however, records showing how Bovensiep
spent the money was not the critical inquiry because “(a)t a point it becomes
theft when you’re taking money from someone knowing you can’t pay it
back.” Bovensiep admitted to Bullard that he took about $55,000 from the
835 property as loans for himself or his business that he never repaid.
Bovensiep also admitted taking money from certain victims telling them the
funds would be used as loans to needy third parties, but that he used these
funds to keep the condominiums afloat. Bovensiep stated that things started
to “snowball( )” as he was borrowing from one individual to pay another.
Bovensiep conceded that when the victims confronted him about the money,
he lied to them with false stories because he had already spent the money to
keep everything afloat.
The trial court instructed the jury on theft by false pretenses and theft
by embezzlement, and told the jurors that they were not required to agree on
the same theory to find Bovensiep guilty. Bovensiep’s statements to Bullard
supported an inference that he took some of the money (1) knowing he would
not be able to repay it, supporting theft by embezzlement, or (2) based on false
representations that he would be loaning the money to needy people,
supporting theft by false pretense. (See CALCRIM Nos. 1804, 1806.)
Accordingly, the record supports the trial court’s finding that Bovensiep did
not suffer actual prejudice. [Footnote: Bovensiep also contends the bank
records were relevant to his defense that the investment losses suffered by the
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victims were the result of the financial downturn of the economy, rather than
any misappropriation he may have committed. While it is probably true that
the economic downturn caused the real property investments to lose value, we
fail to see how the bank records would have proven this fact.]
Finally, a prosecutor is entitled to take a reasonable amount of time to
investigate an offense to determine whether prosecution is warranted or to
gather more evidence to build a case against the defendant. (People v. Dunn–
Gonzalez, supra, 47 Cal.App.4th at p. 911.) “(T)o prosecute a defendant
following investigative delay does not deprive him of due process, even if his
defense might have been somewhat prejudiced by the lapse of time.” (United
States v. Lovasco (1977) 431 U.S. 783, 796.)

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Here, Bullard prepared a detailed timeline showing an active
investigation of the matter. After Bullard received the matter she immediately
started interviewing witnesses and securing documents. In 2010, Bullard
asked for assistance from Steven Papet, an investigative auditor with the
California Department of Justice, because she knew the matter was going to
be “document heavy.” In July 2011, Bullard e-mailed Papet that the DA was
ready to file as soon as he finished his analysis. However, the investigation
then led to the discovery of additional victims. In June 2012, Bullard learned
that Collings and Taylor might be victims. Through that interview Bullard
learned about Stevens and Allen and interviewed them in July 2012. Thus,
the DA was discovering additional victims six months before it filed charges
against Bovensiep.
The evidence supports the trial court’s conclusion that once the DA
assigned the matter to Bullard, the time required to investigate justified any
delay in charging Bovensiep. Even assuming the loss of bank records during
the investigation of the case prejudiced Bovensiep, the justifiable
investigative delay outweighed Bovensiep’s showing of prejudice. Thus, we
conclude the trial court did not abuse its discretion in refusing to dismiss the
charges against Bovensiep based on pre-charging delay.

23
24

(Lodgment No. 2, People v. Bovensiep, No. D068198, slip op. at 5-11.)

25

The state appellate court correctly found that Petitioner’s Sixth Amendment speedy

26

trial right does not attach prior to the filing of an accusatory pleading or arrest. United

27

States v. Marion, 404 U.S. 307, 320 (1971) (“[I]t is either a formal indictment or

28

information or else the actual restraints imposed by arrest and holding to answer a criminal
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1

charge that engage the particular protections of the speedy trial provision of the Sixth

2

Amendment.”) The appellate court correctly addressed Petitioner’s allegation of pre-

3

charging delay as a Fifth Amendment due process claim. Id. at 324 (“[T]he Due Process

4

Clause of the Fifth Amendment would require dismissal of the indictment if it were shown

5

at trial that the pre-indictment delay in this case caused substantial prejudice to appellees’

6

rights to a fair trial and that the delay was an intentional device to gain tactical advantage

7

over the accused.”); see also Ingraham v. Wright, 430 U.S. 651, 673 (1977) (noting that

8

the Due Process Clause of the Fifth Amendment is applicable to the states through the

9

Fourteenth Amendment).

10

Clearly established federal law provides that in order for Petitioner to demonstrate a

11

violation of his Fifth Amendment right to due process based on pre-charging delay, he must

12

carry a heavy burden to prove actual, non-speculative prejudice to his defense from the

13

delay. United States v. Huntley, 976 F.2d 1287, 1290 (9th Cir. 1992), citing United States

14

v. Lovasco, 431 U.S. 783, 790 (1977). As the state court correctly noted, if Petitioner

15

demonstrates actual prejudice, the Court must balance the length of the delay against the

16

government’s reason for the delay to determine whether it “violates those ‘fundamental

17

conceptions of justice which lie at the base of our civil and political institutions,’ which

18

define ‘the community’s sense of fair play and decency.’” Lovasco, 431 U.S. at 790

19

(citations omitted); Huntley, 976 F.3d at 1290.

20

The state appellate court rejected this claim on the basis that the pre-charging delay

21

was not excessive, that the loss of the records in the storage unit was entirely Petitioner’s

22

fault, and that even assuming the loss of records during the investigation was prejudicial,

23

“the justifiable investigative delay outweighed Bovensiep’s showing of prejudice” because

24

he merely contended the records would have showed he spent the victims’ money in the

25

course of his business, which would not have helped his defense against allegations that he

26

never intended to pay the money back and knew he could not do so. (Lodgment No. 2,

27

People v. Bovensiep, No. D068198, slip op. at 5-11.) That approach is consistent with

28

clearly established federal law. See Lovasco, 431 U.S. at 790 (“[P]roof of prejudice is
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1

generally a necessary but not sufficient element of a due process claim, and . . . the due

2

process inquiry must consider the reasons for the delay as well as the prejudice to the

3

accused.”) For the following reasons, the state appellate court’s application of that clearly

4

established law, and its factual determinations, are objectively reasonable.

5

Accordingly to the timeline prepared by prosecution investigator Bullard, Kneeshaw

6

filed a criminal complaint with the San Diego Sheriff’s Department on December 30, 2009,

7

which was referred to the District Attorney’s office on February 1, 2010, and Bullard was

8

assigned on October 1, 2010. (CT 603.) Petitioner was arrested on January 29, 2013 (CT

9

605), and the first charging document was filed on February 13, 2013. (RT 2777.) He was

10

arraigned on February 15, 2013, and released on bail within ten days. (CT 736-38.) The

11

prosecutor argued that the first time the victims learned he was engaged in criminal conduct

12

was on December 9, 2009, when he admitted to the victims during a meeting that he had

13

used their money for his own personal purposes. A recording of that meeting was played

14

for the jury, and a transcript is in the record. (CT 371-435.)

15

Petitioner argued in a pre-trial motion that Dixon noticed the first sign of problems

16

when he found out in late 2006 or early 2007 “that unit 835 had foreclosure tape on the

17

door.” (CT 78.) He argued that the foreclosure should have “made them suspicious of

18

potential criminal conduct,” and that they should have “investigated and reported the

19

potential criminal conduct to law enforcement,” but did not do so until they filed a criminal

20

complaint on December 30, 2009. (Id.) He contended that investigator Bullard was not

21

appointed until ten months later, in October 2010, and Bullard waited an additional three

22

to four months before requesting search warrants and did not interview Petitioner until

23

December 2012. (CT 180-81.) As quoted above, the appellate court stated:

24
25
26
27
28

After Bullard received the matter she immediately started interviewing
witnesses and securing documents. In 2010, Bullard asked for assistance from
Steven Papet, an investigative auditor with the California Department of
Justice, because she knew the matter was going to be “document heavy.” In
July 2011, Bullard e-mailed Papet that the DA was ready to file as soon as he
finished his analysis. However, the investigation then led to the discovery of
additional victims. In June 2012, Bullard learned that Collings and Taylor
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1
2

might be victims. Through that interview Bullard learned about Stevens and
Allen and interviewed them in July 2012. Thus, the DA was discovering
additional victims six months before it filed charges against Bovensiep.

3
4

(Lodgment No. 2, People v. Bovensiep, No. D068198, slip op. at 11.)

5

Petitioner first argues that his victims should have realized he was engaged in

6

criminal conduct prior to his admission during the December 9, 2009, meeting that he had

7

used their money for personal purposes. The findings of the trial and appellate courts that

8

the delay in filing a criminal complaint was due to the time it took victims to realize

9

Petitioner had defrauded them is objectively reasonable. As discussed below in connection

10

to the statute of limitations, the state court correctly found the jury could have drawn a

11

reasonable inference from the trial testimony that Petitioner used his position as a former

12

deputy sheriff, and as a good friend and fellow church member, to mislead the victims

13

when they first asked him about their suspicions regarding their investments. As discussed

14

below, even if the delay in discovering the crimes could contribute to a Fifth Amendment

15

due process violation, Petitioner’s due process rights were not violated by the delay

16

because the jury found he caused the delay.

17

Petitioner next points to the ten-month delay from the December 30, 2009 criminal

18

complaint until the District Attorney appointed Investigator Bullard in October 2010.

19

Evidence presented at a post-trial motion, which included Bullard’s testimony, established

20

that the Sheriff’s Department referred the case to the District Attorney in April 2010, and

21

Bullard was assigned the case in October 2010. (RT 3026-36.) When asked by the trial

22

judge for a justification for the six-month delay in assigning the case, the prosecutor said:

23

Your Honor, I have no idea. The only thing I can do is speculate that
there wasn’t enough investigators or maybe everybody else was busy with
other cases. I don’t have a justification. [¶] And I can just flat-out say it
should have been assigned to someone even if somebody would have said,
“I’ll get to it as soon as I get to it” and not start working on it right away, at
least assigned to someone.

24
25
26
27
28

(RT 3027.)
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Although Petitioner correctly notes that the trial court found the six-month delay in

2

assigning an investigator unjustified (RT 3062-63), that is the only unjustified delay the

3

state court assigned to the prosecution, and delays arising from government negligence

4

present less weighty concerns that purposeful government delay. Barker, 407 U.S. at 531.

5

As to the remaining pre-accusation delay, the trial judge stated: “The timeline submitted

6

by Ms. Bullard clearly indicates that over most of the time leading up to the charges being

7

filed there was investigative work being done. And the cases make pretty clear if it is truly

8

being investigated, which we want the law enforcement side to do, then that’s going to be

9

justified.” (RT 3062.) The referenced timeline is in the record. (CT 603-05.)

10

With respect to prejudice, evidence was presented that the bank routinely destroyed

11

its records after seven calendar years, and that the destroyed bank records consisted of

12

cashier’s checks which Petitioner argued “would have shown, we believe, that [Petitioner]

13

was using those funds in the normal course of his real estate business.” (RT 3002.) The

14

trial court found that the six-month unjustified delay did not cause the destruction of the

15

bank records, but found the records were “not available because the case itself is old, took

16

a long time for the victims to realize they, in their minds, were being swindled, and took a

17

while for the prosecution to legitimately investigate the case.” (RT 3063.) The court also

18

found that even if the bank records had not been destroyed, and even if they showed

19

Petitioner spent the victims’ money on business expenses as he claimed, they would not

20

have exonerated him because the jury found he took the victims’ money knowing he could

21

not pay it back and with no intention of paying it back. (RT 3052.)

22

Petitioner argues that he was acquitted of the charges involving the Hawaii property

23

because he had the bank records as to those charges, and would have been acquitted on the

24

remaining charges but for the lack of records as to those counts. However, he was

25

convicted on count 7 involving defrauding Kneeshaw on the Hawaii property, and unlike

26

the Hawaii counts which involved real property, and which a defense expert testified at

27

trial she could find no “red flags” in the business records normally associated with fraud

28

or embezzlement (RT 2322-23, 2441), the other counts on which he was convicted, other
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than count 1 which involved Petitioner writing checks to himself from the Hawaii

2

condominium account, involved a nonexistent condominium (RT 1495-99, victim Miller-

3

count 13), and personal loans by the victims to Petitioner who told them he was loaning

4

the money to third persons who wished to purchase real estate but were unable to obtain

5

conventional bank funding. (See RT 171: victim Taylor-count 21; RT 368: victim Stevens-

6

count 18; RT 403: victim Colling-count 19; RT 616: victim Osborne-count 20; RT 653:

7

victim Allen-counts 16-17; RT 1302, 1307, 1321 and 1335: victim Keenshaw-counts 5, 8-

8

11; RT 1484-85: victim Semeit-count 12.) Petitioner was convicted on those charges

9

despite the defense expert’s testimony that she examined the available records with respect

10

to the personal loans and found no evidence indicating they were used for anything other

11

than Petitioner’s business. (RT 2328-34.) Thus, the state court correctly found Petitioner

12

has not established prejudice because even if the missing bank records showed the same

13

thing as the records which were available at trial, that the money Petitioner obtained from

14

the personal loans was used in his business, it would not have undermined the evidence

15

that established he misled the victims regarding his intention of paying them back. (RT

16

3052.)

17

Petitioner next contends, as he did in state court, that he can also show prejudice

18

arising from the destruction of documents in his storage unit. In the trial court he claimed

19

that a complete record of correspondence between him and the members of the “Taylor

20

Group”1 were kept in a storage facility he leased, and they were destroyed in October 2013

21

because he failed to pay the fee for the storage unit, which was caused by the loss of his

22

job as a result of his arrest on January 29, 2013. (CT 541-44.)

23

To the extent Petitioner contends the prosecution would have identified the Taylor

24

Group victims sooner had the correspondence been retrieved from storage, the trial judge

25
26
27
28

1

Referring to Taylor (the victim in count 21), who referred two of her sisters, Laura Colling

(count 19) and Marsha Allen (counts 16-17), and her friend Diane Mullins to Petitioner.
Allen in turn referred her friend Patricia Osborne (count 20) to Petitioner, and Mullins
referred Stevens (count 18), her father, to Petitioner. (RT 197, 367, 403, 614-15.)
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found that Petitioner could have recovered the documents from storage but chose not to,

2

and did not tell the prosecution about the records which would have allowed them to be

3

subpoenaed and preserved. (RT 3005-10, 3024.) Petitioner admitted in the post-trial

4

motion that he went to his storage unit and retrieved documents relating to the Hawaii

5

counts and could have but did not take the remaining records, which he contended showed

6

he had made some payments to the victims on their loans and could have been used at trial

7

to show that he intended to pay them back. (RT 3009.) The state court correctly found

8

Petitioner has not shown that the destroyed correspondence would have added anything to,

9

or contradicted the testimony of, the victims from the Taylor Group who testified at trial

10

that he made initial interest payments on several of the loans (RT 374, 406-11, 426, 428,

11

624, 655-60), but when the payments stopped and they attempted to contact him by phone,

12

letter and e-mail, they were often unable to do so (RT 186, 375, 417-18, 432-37, 441-46,

13

625-26, 662), and when they were able to contact him he misled them to believe their

14

investments were safe and told them they should “hang in there a little longer.” (RT 227,

15

256, 375-77, 446-47, 661-62, 672-73.) Thus, it was objectively reasonable for the state

16

appellate court to find that the destruction of the records from the storage unit in September

17

2013, about eight months after Petitioner was charged and arrested, was entirely

18

Petitioner’s fault, and even if they consisted of correspondence to the victims regarding

19

promises of repayment, it would have been cumulative to, and not have rebutted the

20

testimony of, the victims that he misled them in that respect.

21

The Court finds that because Petitioner has failed to carry his “heavy burden” of

22

identifying non-speculative prejudice arising from the destruction of the bank records or

23

the storage unit documents due to pre-charging delay, Lovasco, 431 U.S. at 790, the state

24

court finding to that effect is not based on an unreasonable determination of the facts, and

25

is not contrary to, or an unreasonable application of, clearly established federal law.

26

Finally, Petitioner contends the pre-charging delay violated his federal constitutional

27

right to due process because it violated the state statute of limitations. The last reasoned

28

state court opinion as to this claim is the appellate court opinion on direct appeal.
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The state appellate court denied this aspect of claim one, stating:

2

A. Additional Background

3

Before trial, the court denied Bovensiep’s motion to dismiss some of
the charges on statute of limitations grounds. The court explained that
Bovensiep’s position of trust and reasonable excuses allowed him to get away
with his crimes longer as the victims believed Bovensiep’s assurances that he
would pay them back. The trial court held that the position of trust that
Bovensiep had with the victims created a triable issue of fact for the jury.

4
5
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The parties agreed that each of the grand theft and securities fraud
counts were subject to a four-year statute of limitations, which accrued upon
discovery, and that the prosecution of the action began on February 13, 2013,
when the original information was filed. The parties argued the statute of
limitations issue to the jury. The trial court instructed the jury that the People
began the prosecution of the case on February 13, 2013, and for the
prosecution to be timely the jury needed to find that the People prosecuted the
crimes within four years of the date the victims discovered or should have
discovered Bovensiep’s criminal actions.
Thus, to be timely, the jury needed to find that the events giving rise to
the vast majority of the counts could not have been legally discovered before
February 13, 2009, four years prior to the filing of the original information.
In finding Bovensiep guilty, the jury necessarily concluded that the statute of
limitations did not bar the 10 counts at issue.
B. Legal Principles
A defendant may raise a statute of limitations claim in a pretrial motion,
but the trial court may decide the issue as a matter of law only if the facts are
undisputed. (People v. Le (2000) 82 Cal.App.4th 1352, 1361.) A pretrial
motion to dismiss on the ground the statute of limitations has run “is the
functional equivalent of a motion for summary judgment in the civil context.”
(People v. Lopez (1997) 52 Cal.App.4th 233, 251 (Lopez).) The court should
grant the motion only if the evidence establishes as a matter of law that the
statute has run. (Id. at p. 250.) If the People prevail on the motion, then the
jury must resolve the limitation issue if it remains disputed by the defendant.
(People v. Zamora (1976) 18 Cal.3d 538, 563–564, fn. 25 (Zamora).)
“(T)he statute of limitations is not an ingredient of an offense but a
substantive matter for which the prosecution’s burden of proof is a
preponderance of the evidence.” (People v. Riskin (2006) 143 Cal.App.4th
234, 241.) “Under the preponderance of evidence standard, the prosecution
is entitled to prevail at trial even if the evidence is conflicting (and thus does
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not establish the point as a matter of law) if the fact finder believes the
prosecution’s evidence and that finding is supported by substantial evidence.”
(Lopez, supra, 52 Cal.App.4th at p. 250.) Under the substantial evidence
standard, “we review the entire record in the light most favorable to the
judgment to determine whether it discloses evidence that is reasonable,
credible, and of solid value such that a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt.” (People v. Bolin (1998) 18
Cal.4th 297, 331.) We resolve all evidentiary and credibility conflicts in favor
of the verdict and indulge every reasonable inference the jury could draw from
the evidence. (People v. Autry (1995) 37 Cal.App.4th 351, 358.)
A four-year statute of limitations applies to grand theft and securities
fraud. (Pen. Code, §§ 801.5, 803, subd. (c)(1) & (3).) The limitations period
“does not commence to run until the discovery of an offense. . . .” (Pen. Code,
§ 803, subd. (c).) “The crucial determination is whether law enforcement
authorities or the victim had actual notice of circumstances sufficient to make
them suspicious of fraud thereby leading them to make inquiries which might
have revealed the fraud.” (Zamora, supra, 18 Cal.3d at pp. 571–572, italics
omitted.) “(I)t is the discovery of the crime, and not just a loss, that triggers
the running of the statute.” (Lopez, supra, 52 Cal.App.4th at p. 246, fn. 4.)
The inquiry as to the discovery of the offense is a question of fact for the jury
to decide. (Zamora, supra, at p. 565.) On appeal, a jury’s findings on the
discovery issue are tested under the substantial evidence standard. (Ibid.)
Where a defendant occupies a position of trust “‘facts which would ordinarily
require investigation may not excite suspicion.’” (People v. Crossman (1989)
210 Cal.App.3d 476, 482.)
C. Analysis
Bovensiep contends his conviction on two securities fraud charges
involving the Kneeshaws and eight grand theft counts involving Dixon, the
Kneeshaws, Semeit, Miller and Stevens must be reversed because the fouryear limitations period expired before the prosecution commenced for these
offenses. The jury disagreed that the limitations period had expired, impliedly
finding these individuals did not know they were victims of a crime before
February 13, 2009. As we shall explain, substantial evidence supported this
implied finding as to each victim.
As a preliminary matter, Bovensiep asserts each of the above victims
should have known that a crime had potentially occurred before February 13,
2009, based on the bounced checks, property foreclosures and his failure to
respond to their inquiries. Bovensiep asserts that had the victims investigated,
they would have discovered additional facts requiring further inquiry. Even
assuming, however, that each victim had done some investigation, the
20
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testimony of Bovensiep’s own expert suggested such an investigation would
not have led the victims to believe a crime had been committed.
Janet McHard, a certified fraud examiner for the defense, reconstructed
the accounting records for Bovensiep’s companies for five different bank
accounts, entering every transaction into an accounting program. McHard
described this as a tedious process that took at least two months. McHard
ultimately formed the opinion that there were no signs of fraud. Specifically,
she found no evidence of deception or misrepresentation of facts in
contemporaneous documents and no false or altered documents. While
McHard agreed with the prosecution’s definition of a Ponzi scheme, she did
not find such a scheme in this case. McHard found evidence of a
“procurement violation,” meaning money was taken from accounts without
permission. While McHard admitted this could be fraud, she stated it could
also be improper training or forgetfulness. McHard admitted there were
“frequent” bounced checks, but stated that a bounced check “in and of itself,
is not a hallmark of fraud.” She also stated that losing property to foreclosure
is not a red flag for fraud.
Accordingly, there was sufficient evidence for the jury to reject
Bovensiep’s argument that the exercise of reasonable diligence would have
led each victim to discover his crimes before February 13, 2009.
Ronald Dixon—Count 1
Dixon and Bovensiep became friends and started a business
relationship, with Bovensiep helping Dixon sell two parcels of property.
Dixon was “extremely satisfied” with Bovensiep’s services. Dixon had a high
impression of Bovensiep because Bovensiep associated with people who
Dixon thought of highly. Dixon trusted Bovensiep as he knew Bovensiep was
a past peace officer who attended church and had real estate knowledge.
In late 2004 or 2005, Bovensiep mentioned a Hawaii condominium
investment opportunity to Dixon. Dixon decided to invest after meeting Craig
Knudsen, Bovensiep’s pastor. Dixon felt comfortable joining a partnership
with Knudsen and Bovensiep as they were both Christians, he was a Christian
and they appeared very honest and reliable.
Dixon purchased an interest in the 835 property for a total of $117,578
in June 2005. Dixon knew that the operating agreement for the condominium
limited Bovensiep, as the managing partner, to not exceed $1500 in expenses
without approval of all three partners. When Dixon purchased his interest,
the 835 property had about $81,000 in assets.

28
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In late 2005, Dixon received some documents showing the LLC had
only about $500 or $600 in cash. This concerned Dixon. Dixon sent some emails to Bovensiep about the issue but never got a response. Dixon believed
that Bovensiep had “some explaining to do” regarding depletion of the cash
account. When Dixon never got a response from Bovensiep, he contacted
Daniel Tobias, the accountant for the LLC, and asked where the money had
gone. Tobias referred Dixon back to Bovensiep, telling Dixon that he just
reports what he is given. When Bovensiep did not respond, Dixon went back
to Tobias.
Tobias told Dixon that there had been a “loan to buyers” that added up
to around $65,000. Dixon was “shocked” because Bovensiep was limited to
$1,500 for expenditures and there had been no approval from the other
partners for this loan. Dixon did not understand what the term “loans to
buyers” meant because he was unaware of the LLC loaning money to
anybody. Dixon was “concerned” when he learned about the loan because he
was unaware of any buyers and had not authorized the expenditure. Dixon
asked Bovensiep for an explanation, but never received one.
On December 9, 2008, Dixon e-mailed a list of 15 questions to
Bovensiep after reviewing the financial statements for the 835 property from
May 2005 to December 2007. The first question asked Bovensiep for an
explanation regarding the depleted cash assets. In another question, Dixon
asked about a write-off for a bad debt, wanting to know about the debt, stating
“This smells of embezzlement and I demand a full disclosure.”
Bovensiep e-mailed a response on December 17, 2008, but Dixon could
not recall if Bovensiep had completely answered his questions. Bovensiep
ended the e-mail with “good news” including that rates were dropping and
this would enable him to refinance a bunch of loans. Dixon e-mailed a
response to Bovensiep’s answer that same day, thanking Bovensiep for the
update. When asked whether Bovensiep had done a good job in keeping
Dixon informed up to this point, Dixon responded “Not totally.” Around
December 21, 2008, Dixon was “(a) little frustrated” with Bovensiep because
Bovensiep had not provided full explanations.
This evidence shows that Dixon knew, and was concerned about, the
depleted cash reserves for the 835 property since late 2005. Dixon also knew
that the unauthorized “loans to buyers” violated a provision in the operating
agreement. The jury, however, could have reasonably concluded that Dixon
did not have sufficient information that would have led him to discover that
Bovensiep had committed a crime. Bovensiep’s lack of responsiveness to
Dixon’s inquires, while frustrating, did not evidence a crime particularly when

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viewed in conjunction with Dixon’s generally high impression of Bovensiep
and his belief that Bovensiep was honest and reliable.
It was not until Thanksgiving Day 2009, that Dixon was shocked to
learn that the 835 property was being foreclosed. On December 2, 2009,
Dixon and others met with Bovensiep at a Coco’s restaurant. The participants
recorded the meeting and the jury listened to the recording. The general tone
of the meeting was cordial and not accusatory, with Bovensiep expressing his
gratitude on how congenial and gracious everyone had been.
During the meeting, Bovensiep stated they were together to “fix”
things, that the past two years have been devastating and he was receiving
counseling. Dixon indicated that he did not think Bovensiep was a bad person,
that Bovensiep had good intentions and everyone was trying to work with
Bovensiep because Dixon knew the current situation in the real estate market.
Dixon again expressed his trust in Bovensiep telling him: “We had, we had
some serious doubts, and again my paranoia goes when you don’t talk to me.
I’ve told you a thousand times, but if you talk to us, we could take that as good
news.” The meeting closed with Bovensiep telling everyone that he had his
“list” and would “get back to you guys” with more information.
Thus, even at this late date, Bovensiep promised to provide more
information to ease Dixon’s concerns. Dixon believed Bovensiep had “good
intentions” and was most concerned about Bovensiep’s lack of
communication. On these facts, the jury could reasonably conclude that
Dixon did not have sufficient information of criminal activity until Dixon was
served with a lawsuit regarding the 835 property in February 2009.
The Kneeshaws—Counts 5, 7–11
The Kneeshaws were longtime friends of Bovensiep. They knew him
as a “great family man” and “church man” who had helped them and their son
with their respective homes. Terry had an “overwhelming” amount of trust in
Bovensiep. In 2007, the Kneeshaws invested in the Kihei property and
entered into three separate loan investments with Bovensiep, supposedly to
people in need. When Terry inquired about missed interest payments,
Bovensiep told her that the people who had her money were having
difficulties, but that her money was safe and she should not worry. Bovensiep
preyed on Terry’s sympathies, telling her children were in danger of losing
their homes or meals.
In 2008, the Kneeshaws made a fourth loan investment that had a due
date in July 2011. Although Terry was hesitant to make the last loan because
the earlier loans had not been repaid, she still trusted Bovensiep and did not
want other people to lose their homes. During this time period, the Kneeshaws
23
17cv0074-GPC (NLS)

1
2
3
4
5
6
7
8
9

received monthly interest payments from Bovensiep on the first loan for about
one year.
On December 5, 2009, George learned that the Kihei property was
facing foreclosure. George met with the other investors two times, a couple
of weeks apart, to discuss the situation and attempt to gather documents about
what was owed on the property. The investors realized they had no standing
to talk to the bank or the homeowner’s association because the Kihei property
was not in their names. At the end of December 2009, George reported the
matter to the sheriff’s department for a potential criminal investigation. Until
the day he learned about the foreclosure, George still trusted Bovensiep, never
believed Bovensiep would steal from him and believed Bovensiep’s
reassurances about repayment of the notes.

11

The jury could have reasonably concluded that the Kneeshaws did not
have sufficient information that Bovensiep had committed a crime until the
sheriff’s office referred the matter to the DA in February 2010.

12

Frederick Semeit—Count 12

13

Semeit received two notes from Bovensiep with maturity dates in
November and October 2008, with the belief that he would be paid interest
and would receive his principal back when the notes matured. Bovensiep
claims that Semiet’s receipt of only one interest payment put him on inquiry
notice and with further inquiry he would have discovered that he was the
victim of a crime.

10

14
15
16
17

22

This argument ignores Semiet’s trust in Bovensiep and Bovensiep’s
constant reassurances that he simply needed more time to get Semiet’s money
back. Semiet last spoke to Bovensiep for the purpose of inquiring about
repayment in 2009, when Bovensiep again told Semiet “Don’t worry. I’ll pay
you back.” While the evidence shows Bovensiep failed to repay Semiet, it
does not show that Semiet suspected Bovensiep of a crime. Nor does the
evidence suggest what further inquiry Semiet could have undertaken to
discover Bovensiep’s crime after Bovensiep failed to pay on the notes.

23

Chris Miller—Count 13

24

In April 2008, Miller gave Bovensiep $48,000 to purchase a
condominium. Around April 2009, Miller told Bovensiep that he wanted out
of the investment as he had yet to receive any paperwork. Bovensiep
promised to return Miller’s money as soon as Bovensiep got another investor.
After 60 days went by, Miller asked Bovensiep for a promissory note, which
Bovensiep provided in April 2009, which stated payment was due in 60 days.
Bovensiep later replaced that promissory note in June 2009, with another note

18
19
20
21

25
26
27
28

24
17cv0074-GPC (NLS)

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

due in 60 days. In November 2009, Miller knew Bovensiep was lying to him,
but after speaking to Bovensiep’s wife he “absolutely” believed he would get
his money back.
Although Miller testified that Bovensiep had deceived him about the
investment from April 2008 to April 2009, Bovensiep promised to return
Miller’s money and gave Miller two promissory notes. Miller believed that
Bovensiep would repay him. A reasonable jury could have concluded that
Miller did not discover Bovensiep’s theft until Bovensiep failed to pay on the
June 2009 promissory note in August 2009. Thus, Miller did not realize he
was the victim of a crime until after February 13, 2009.
Robert Stevens—Count 18
In January 2007, Stevens invested $25,000 with Bovensiep. Stevens
knew that Taylor had been doing business with Bovensiep for quite a while
and believed Bovensiep to be a good honest person. Stevens received about
four monthly interest payments, but then the checks started to bounce.
Bovensiep blamed the problem on someone else and told Stevens he would
take care of the issue. Bovensiep then stopped sending Stevens any checks.
Stevens sent Bovensiep a couple of letters, but got no response. Bovensiep
eventually told Stevens that he would repay him from a business deal in Brazil
that would be paying Bovensiep a lot of money. Stevens talked to Bovensiep
again, who said he was still working on the Brazil deal. Bovensiep also told
Stevens that he would repay Stevens when the economy improved.
On July 21, 2009, Mullins helped Stevens write Bovensiep a letter,
which Stevens signed. In March 2010, Stevens agreed to Bovensiep
extending the note for another year. In May 2010, Bovensiep reassured
Mullins that the note would stay in effect until he repaid Stevens. Mullins
helped Stevens with a second letter in July 2010. In August 2010, Bovensiep
again promised to take care of Stevens, but was unclear about the timing.
Bovensiep claims Stevens should have discovered the theft in 2008
when the checks Stevens received bounced. A reasonable jury, however,
could have concluded that based on Bovensiep’s promises to repay Stevens
from the Brazil deal, that Stevens had no reason to suspect Bovensiep until
July 2009, when Mullins and Stevens sent their first letter to Bovensiep. Thus,
the jury reasonably concluded that Stevens could not have discovered the theft
before February 13, 2009. [¶] Accordingly, substantial evidence supported
the jury’s implied finding that the statute of limitations had not expired for the
challenged counts.
(Lodgment No. 2, People v. Bovensiep, No. D068198, slip op. at 12-23.)
25
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1

A state court’s interpretation of a state statute of limitations binds a federal court

2

sitting in habeas. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (“[I]t is not the province

3

of a federal habeas court to re-examine state-court determinations on state-law questions.”)

4

Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (“We have repeatedly held that a state court’s

5

interpretation of state law, including one announced on direct appeal of the challenged

6

conviction, binds a federal court sitting in habeas corpus.”) This Court must defer to the

7

state court’s construction of state law unless it is “untenable or amounts to a subterfuge to

8

avoid federal review of a constitutional violation.” Oxborrow v. Eikenberry, 877 F.2d

9

1395, 1399 (9th Cir. 1989). Nevertheless, “[t]he issue for us, always, is whether the state

10

proceedings satisfied due process; the presence or absence of a state law violation is largely

11

beside the point.” Jammal v. Van de Kamp, 926 F.2d 918, 919-20 (9th Cir. 1991) (“While

12

adherence to state evidentiary rules suggests that the trial was conducted in a procedurally

13

fair manner, it is certainly possible to have a fair trial even when state standards are

14

violated; conversely, state procedural and evidentiary rules may countenance processes that

15

do not comport with fundamental fairness.”)

16
17
18
19
20
21
22
23
24
25
26
27
28

The United States Supreme Court, in determining that the Fifth Amendment rather
than the Sixth Amendment is applicable to pre-charging delay, stated:
The law has provided other mechanisms to guard against possible as
distinguished from actual prejudice resulting from the passage of time
between crime and arrest or charge. As we have said, the applicable statute
of limitations . . . is . . . the primary guarantee against bringing overly stale
criminal charges. Such statutes represent legislative assessments of relative
interests of the State and the defendant in administering and receiving justice;
they are made for the repose of society and the protection of those who may
(during the limitation) . . . have lost their means of defense. These statutes
provide predictability by specifying a limit beyond which there is an
irrebuttable presumption that a defendant’s right to a fair trial would be
prejudiced. [¶] The purpose of a statute of limitations is to limit exposure to
criminal prosecution to a certain fixed period of time following the occurrence
of those acts the legislature has decided to punish by criminal sanctions. Such
a limitation is designed to protect individuals from having to defend
themselves against charges when the basic facts may have become obscured
by the passage of time and to minimize the danger of official punishment
26
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1
2

because of acts in the far-distant past. Such a time limit may also have the
salutary effect of encouraging law enforcement officials promptly to
investigate suspected criminal activity.

3
4

Marion, 404 U.S. at 322-23 (internal quotation marks and citations omitted).

5

Petitioner has identified no “clearly established federal law” which prohibits

6

conviction on criminal charges merely because they were brought past a state statute of

7

limitations, as opposed to the general Fifth Amendment due process protection from

8

prejudicial pre-trial delay. See Loeblein v. Dormire, 229 F.3d 724, 726 (8th Cir. 2000)

9

(“[A] state court’s failure properly to apply a state statute of limitations does not violate

10

due process or, indeed, any other provision of the Constitution or a federal statute.”)

11

However, § 2254(d)(1) does not require an “identical factual pattern before a legal rule

12

must be applied.” White v. Woodall, 572 U.S. 415, 427 (2014), quoting Panetti v.

13

Quarterman, 551 U.S. 930, 953 (2007). “[R]elief is available under § 2254(d)(1)’s

14

unreasonable-application clause if, and only if, it is so obvious that a clearly established

15

rule applies to a given set of facts that there could be no ‘fairminded disagreement’ on the

16

question.” Id., quoting Harrington v. Richter, 562 U.S. 86, 103 (2011). Even if clearly

17

established federal law protected Petitioner from conviction on criminal charges brought

18

after expiration of the state statute of limitations, or if that is a factor encompassed by the

19

Fifth Amendment due process analysis, for the following reasons he has not shown that the

20

state court erred in any respect, or that it’s decision is “untenable or amounts to a subterfuge

21

to avoid federal review of a constitutional violation.” Oxborrow, 877 F.2d at 1399.

22

Petitioner argued prior to trial, at trial, and on appeal, as he does here, that the statute

23

of limitations started to run when his victims began to notice irregularities in their

24

investments which should have made them suspicious of fraud. The trial judge denied a

25

pre-trial motion to dismiss for violation of the statute of limitations, but permitted the jury

26

to determine when Petitioner’s criminal conduct was first discovered, stating:

27
28

But the thing that – a couple of things that stand out to me that make
this, in my view, a triable issue is: one, all of this is happening in context of a
collapse of the economy. You know, you have people losing money left and
27
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1
2

right on real estate, investments, people not being able to make their
payments. One or both of you allude to this financial situation in your papers,
and it was discussed at the 995 to some degree too, that’s one thing.

3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

And then the other is what seems to me to be a position of trust or close
relationship with the Dixons and the Kershaws (sic) through this church
relationship. You know, one of the – one of the reasons we treat people who
are in a position of trust to then violate that trust by stealing is that: one, it’s
just immoral; and two, it makes it easier. You have access and the ability to
get away with it, at least for a longer time, because people do trust you.
And one of the reasons that they – well, because they trust you, they
don’t think in terms of – they may not think in terms of criminal activity as
soon as someone who would that doesn’t know you.
[The prosecutor] made reference to just some broker and all of a sudden
he’s not getting back to you or your investment just disappears or your
property is foreclosed on, you’re not notified, you probably would – most
people would probably respond more quickly and recognize the problem may
be criminal sooner than you would have when you have some guy who you
think is this great guy at your church or with the Kershaws, probably not
saying that name right, with them I think they had – their daughter had a
successful financial relationship with the defendant I think, maybe some loan
or something if I recall correctly, so they have a reason not to think he’s
committing a crime, but maybe it’s just a screw-up in the context of this bad
economy.
So I just can’t find that it’s not a triable issue. I will say that it’s going
to be, I think, a difficult issue at trial because of all these things that make it a
triable issue. It’s going to probably be a bigger part of the trial than it should
be in this kind of case, you know. But I think it will be a triable issue. [¶]
But I can’t find that, as a matter of law, that discovery was made at an earlier
time than alleged, so I’m going to deny the motion to dismiss.
(RT 16-17.) The jury was instructed:
The defendant may not be convicted of counts 1 through 13, and 16
through 21, unless the prosecution began within four years of the date the
crimes were discovered or should have been discovered. [¶] The prosecution
of the charges set forth in counts 1 through 13, and 16 through 21, began on
February 13th of 2013; the prosecution of count 21 (involving alleged victim
Karen Taylor), prosecution of which began on December 29th, 2013.

28
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1

A crime should have been discovered when the victim was aware of
facts that would have alerted a reasonably diligent person in the same
circumstances to the fact that a crime may have been committed. . . . The
statute of limitations is not an issue in counts 14 and 15, and counts 22 through
27, so this instruction does not apply to those counts.2

2
3
4
5

(RT 2777-78.)

6

As quoted above, the appellate court found substantial evidence supported the

7

implied finding by the jury that the charges were brought within the four-year statute of

8

limitations. The state court finding that the victims would have had no reason to investigate

9

is particularly reasonable in light of the trial testimony of a defense expert who saw no “red

10

flags” of fraud or embezzlement in the bank records. (RT 2322-44.) Petitioner has

11

identified no error in the state court’s finding regarding the statute of limitations, and has

12

not supported his claim that his prosecution was fundamentally unfair as a result of this

13

aspect of the pre-charging delay.

14

In sum, the Court finds that the state court adjudication of claim one is neither

15

contrary to, nor an unreasonable application of, clearly established federal law, and is not

16

based on an unreasonable determination of the facts in light of the evidence presented in

17

the state court proceedings. In addition, even if Petitioner could satisfy that standard, he

18

has not alleged facts which, if true, demonstrate a violation of his federal constitutional

19

rights. Accordingly, the Court recommends denying habeas relief as to claim one.

20

C.

21

Petitioner alleges in claim two that he was denied his Fifth, Sixth and Fourteenth

22

Amendment rights to due process, fundamental fairness and a speedy trial by the

23

destruction of exculpatory evidence caused by “‘unjustified’ and ‘negligent’ delays in an

24

already ‘old case’” by the prosecution after charges were filed. (ECF No. 10 at 7; ECF No.

25

10-1 at 1-6.) Respondent answers that the state court denial of this claim, on the basis

Claim Two (Post-Charging Delay)

26
27
2

28

Petitioner was found guilty on counts 1, 5, 7-13, 16-21, and not guilty on counts 2-4, 6,
14-15, 22-27. (CT 832-38.)
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1

Petitioner waived his speedy trial right and requested numerous delays, is consistent with

2

clearly established federal law providing that Sixth Amendment speedy trial guarantee is

3

not violated when a defendant is responsible for the delays. (Ans. Mem. at 13-17.)

4

Petitioner presented this claim to the state supreme court in a petition for review.

5

(Lodgment No. 3.) The petition was denied with an order which stated: “The petition for

6

review is denied.” (Lodgment No. 4.) It was also presented to the appellate court on direct

7

appeal and denied on the merits. (Lodgment Nos. 1-2.)

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22

The Court will look through the silent denial by the state supreme court to the
appellate court opinion, which states:
Bovensiep complains about prosecutorial delay in charging him. Delay
in charging a defendant after commission of an alleged crime (pre-charging
delay) does not implicate speedy trial rights. (People v. Nelson (2008) 43
Cal.4th 1242, 1250 (Nelson).) The federal right to a speedy trial attaches only
after an arrest or the filing of an indictment or information, although
California extends the right by holding that it attaches after a complaint has
been filed. (United States v. Marion (1971) 404 U.S. 307, 320; People v.
Mirenda (2009) 174 Cal.App.4th 1313, 1327.)
Here, Bovensiep sought to dismiss the charges against him based on
alleged delays in charging him. Bovensiep never sought a dismissal based on
post-charging delay. Notably, the record shows that after charges were filed,
Bovensiep requested numerous continuances of the preliminary hearing and
three trial continuances. Under these facts, Bovensiep waived his right to a
speedy trial. (People v. Wilson (1963) 60 Cal.2d 139, 146 (the constitutional
or statutory right to a speedy trial may be waived if not asserted prior to
commencement of trial).)
(Lodgment No. 2, People v. Bovensiep, No. D068198, slip op. at 5.)

23

The Sixth Amendment provides: “In all criminal prosecutions, the accused shall

24

enjoy the right to a speedy and public trial.” U.S. Const. amend. VI. Clearly established

25

federal law provides that the Sixth Amendment speedy trial right “is fundamental and is

26

imposed by the Due Process Clause of the Fourteenth Amendment on the States.” Barker

27

v. Wingo, 407 U.S. 514, 515 (1972) (internal quote mark omitted). There are four factors

28

in determining whether a speedy trial violation has occurred: (1) the length of delay, (2)
30
17cv0074-GPC (NLS)

1

the reason for the delay, (3) the assertion of the right, and (4) prejudice to defendant. Id.

2

at 529; see also Doggett v. United States, 505 U.S. 647, 651 (1992) (listing Barker factors

3

as: “whether delay before trial was uncommonly long, whether the government or the

4

criminal defendant is more to blame for that delay, whether, in due course, the defendant

5

asserted his right to a speedy trial, and whether he suffered prejudice as the delay’s result.”)

6

With respect to the first Barker factor, the length of the delay between the filing of

7

the initial charging document in February 2013 (CT 1), and the beginning of jury voir dire

8

in February 2015 (CT 781), a period of two years, is considerable. See United States v.

9

Lam, 251 F.3d 852, 856 (9th Cir. 2001) (noting the general consensus among circuit courts

10

is that eight months constitutes a threshold minimum delay triggering a speedy trial right).

11

However, as will be seen, the first Barker factor is mitigated by the second and third Barker

12

factors, because the state court correctly found Petitioner never invoked his speedy trial

13

right and requested numerous continuances.

14

Petitioner was arraigned on February 15, 2013, released on bond within the next ten

15

days, and remained free of custody on bond until the verdicts were returned. (CT 736, 738,

16

838.) He waived his statutory time for a preliminary hearing four times, on February 27,

17

May 1, August 22, and September 18, 2013, and a preliminary hearing was held on

18

December 9-12, 2013. (CT 740, 742, 746, 750-61.) He waived his statutory time for trial

19

at the end of the preliminary hearing, and a trial date was set for May 22, 2014. (CT 759.)

20

On March 7, 2014, Petitioner again waived statutory time for trial, and trial was re-set for

21

August 11, 2014. (CT 765.) His motion to continue the trial was granted on August 4,

22

2014, and a new trial date was set for August 18, 2014. (CT 767.) His motion to dismiss

23

based on the statute of limitations was heard and denied on August 18, 2014, and a

24

readiness conference was held on August 20, at which a status conference was set for

25

October 31, 2014, and trial call set for December 2, 2014. (RT 1-17; CT 768-69.) At the

26

October 31, 2014 status conference, Petitioner again waived his statutory time for trial and

27

trial was re-set for February 3, 2015. (CT 770.) The parties reported for jury trial on

28

February 3, and voir dire of prospective jurors began on February 10. (CT 772-81.)
31
17cv0074-GPC (NLS)

1

Accordingly, although the first Barker factor, the length of the delay, about two years

2

from accusatory pleading to the beginning of trial, is considerable, it is mitigated by the

3

second and third Barker factors, the reason for the delay and whether Petitioner asserted

4

his speedy trial right. The record shows Petitioner waived his statutory time for a

5

preliminary hearing four times, waived his statutory speedy trial right on three occasions,

6

and moved to continue the trial date on one additional occasion. The only unexplained gap

7

is the period from August 20 to October 31, about two months, which apparently followed

8

an August 20 unreported settlement conference. (RT 18-19; CT 769.) That two-month

9

delay is below the threshold for denial of a speedy trial right. See Lam, 251 F.3d at 856

10

(noting the general consensus among circuit courts is that eight months constitutes a

11

threshold minimum delay triggering a speedy trial right). Thus, the Barker delay factors

12

weigh against finding a speedy trial violation.

13

With respect to the fourth Barker factor, prejudice, as discussed above in claim one,

14

Petitioner did not show prejudice resulting from any delays. However, “unreasonable

15

delay between formal accusation and trial threatens to produce more than one sort of harm,

16

including oppressive pretrial incarceration, anxiety and concern of the accused, and the

17

possibility that the (accused’s) defense will be impaired by dimming memories and loss of

18

exculpatory evidence.” Doggett, 505 U.S. at 654. The Supreme Court in Doggett noted:

19

Barker explicitly recognized that impairment of one’s defense is the
most difficult form of speedy trial prejudice to prove because time’s erosion
of exculpatory evidence and testimony can rarely be shown. And though time
can tilt the case against either side, one cannot generally be sure which of them
it has prejudiced more severely. Thus, we generally have to recognize that
excessive delay presumptively compromises the reliability of a trial in ways
that neither party can prove or, for that matter, identify. While such
presumptive prejudice cannot alone carry a Sixth Amendment claim without
regard to the other Barker criteria, it is part of the mix of relevant facts.

20
21
22
23
24
25
26

Id. at 655 (internal quote marks and citations omitted).

27

Petitioner has not shown excessive delay in bringing his case to trial after the filing

28

of the first charging document. He requested seven of the delays, and only about two
32
17cv0074-GPC (NLS)

1

months of the two-year delay is not, on the record before this Court, conclusively

2

attributable to him. Without a showing of post-charging excessive delay, there is no

3

presumption of prejudice. Id. Because Petitioner has not shown prejudice or an excessive

4

delay not attributable to him, he has failed to demonstrate a violation of his Sixth

5

Amendment right to a speedy trial.

6

adjudication of this claim, on the basis that Petitioner waived his right to a speedy trial by

7

not invoking it and requesting the delays, is neither contrary to, nor involves an

8

unreasonable application of, clearly established federal law, and is not based on an

9

unreasonable determination of the facts. Even if he could satisfy that standard, he has not

10

alleged facts which, if true, show a violation of his federal constitutional rights.

11

Accordingly, the Court recommends denial of habeas relief as to claim two.

12

V.

Accordingly, the Court finds the state court

CONCLUSION

13

For all of the foregoing reasons, IT IS HEREBY RECOMMENDED that the Court

14

issue an Order: (1) approving and adopting this Report and Recommendation, and (2)

15

directing that Judgment be entered denying the Petition.

16

IT IS ORDERED that no later than November 9, 2018, any party to this action may

17

file written objections with the Court and serve a copy on all parties. The document should

18

be captioned “Objections to Report and Recommendation.”

19

IT IS FURTHER ORDERED that any reply to the objections shall be filed with

20

the Court and served on all parties no later than November 30, 2018. The parties are

21

advised that failure to file objections with the specified time may waive the right to raise

22

those objections on appeal of the Court’s order. See Turner v. Duncan, 158 F.3d 449, 455

23

(9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153, 1156 (9th Cir. 1991).

24

Dated: October 24, 2018

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