Business

Criminal charges still possible for man who owned Boise jet boat business

A Niagara Jet Adventures tour boat, from Youngstown, New York, takes passengers on a thrill ride in the Niagara Gorge rapids on the Niagara River in Niagara Falls, N.Y.
A Niagara Jet Adventures tour boat, from Youngstown, New York, takes passengers on a thrill ride in the Niagara Gorge rapids on the Niagara River in Niagara Falls, N.Y. photo@idahostatesman.com

Christopher Bohnenkamp did not outrun investigators or a raft of customer lawsuits when he closed his Boise jet boat businesses last spring to run his new business in New York state.

The FBI is investigating Bohnenkamp, now operating Niagara Jet Adventures on the Niagara River in Youngstown, N.Y. So is the Idaho Attorney General’s Office. At least four customer lawsuits – each sharing nearly identical claims that Bohnenkamp accepted between $50,000 and $200,000 as payments for jet boats that he either did not build or did not complete — await court dates or settlements. A former partner in the Niagara River venture has sued him for nearly $100 million, with depositions scheduled Nov. 30 in New York.

The Idaho attorney general and FBI won’t comment on their investigations. Bohnenkamp’s former customers are waiting to see whether they will ever recoup their losses.

Here is a look at the legal issues.

Q: Bohnenkamp accepted deposits on boats and then left town without finishing them or refunding the money. Isn’t that a crime?

A: Maybe. Crimes are offenses against society; they must be proved beyond a reasonable doubt.

A civil case is a lawsuit filed by someone who alleges they were wronged. A defendant may be found liable and ordered to pay damages or to stop doing something, but the defendant cannot be imprisoned.

Investigators and prosecutors must decide whether Bohnenkamp committed any crimes or just civil offenses. They must consider the effects of his actions and his intent. Fraud is a crime, so they will ask: Did he deliberately defraud the people who put down deposits?

One of Bohnenkamp’s lawyers, Damon DeCastro of Roscetti & DeCastro in Niagara Falls, N.Y., told the Statesman: “I haven’t seen anything that even appears criminal in nature. ... My understanding is that Chris built boats, and he had a lot of boat orders that he could not complete, so that’s not a criminal act.”

Q: How do prosecutors determine intent to defraud?

A: They look at how all of the complaints from customers of failed businesses fit together, said lawyer David Leroy of Boise, a former Idaho attorney general.

“How does the circumstance of each victim fit into a pattern of intentional deceit?” Leroy said. “If there are many victims as opposed to few, that suggests more likely criminal conduct. If there are victims whose money was taken after or long after it became apparent the enterprise was failing, that suggests criminal intent. If enough of those patterns come together, most prosecutors will be inclined to file a case, prosecute and obtain a conviction.”

Q: What law enforcement agencies could file criminal charges against Bohnenkamp?

A: A federal prosecutor could file criminal charges if “representations, mailings, wire transactions or other transactions” cross state lines, Leroy said. That could be in play because some of Bohnencamp’s customers live outside of Idaho, he said.

The FBI would provide the evidence for a federal case. The FBI declined to acknowledge its investigation or to say whether it will seek federal charges. The public likely will remain in the dark unless charges are filed.

Because Bohnenkamp’s Whitewater Customs and Treasure Valley Marine were Boise businesses, Ada County Prosecutor Jan Bennetts could file charges if there was proof that crimes were committed here. Nothing indicates that she will. While the prosecutor’s office is aware of the Bohnenkamp situation, it knows of no local investigation and has not received any materials from the Boise Police Department, Ada County Sheriff’s Office or any other law enforcement agency, Deputy Prosecutor Scott Bandy said.

In a June interview, the only time Bohnenkamp spoke to the press, he said his team was not “shysters” or “crooks.”

Idaho Attorney General Lawrence Wasden’s office is investigating the case as a civil matter, not a criminal one. The office could sue on behalf of Bohnenkamp’s customers or come to a settlement.

The New York Attorney General’s Office could launch a civil investigation. A spokesman declined to comment.

The Niagara County District Attorney’s Office could investigate the case if it determined Bohnenkamp committed a crime there, including in his dealings with his former partner, Michael Fox. A call to the office was not returned.

DeCastro, the lawyer for Bohnenkamp, said he believes that Fox and Bohnenkamp have arrived at a settlement and that Fox is dropping his fraud allegations.

“We think Mr. Fox is satisfied,” he said. “We believe the litigation in New York is resolved. ... But we are not at liberty to comment on it.”

Fox’s attorney did not immediately return a call Thursday.

Q: How do prosecutors look at situations involving failed businesses?

A: In July, Bohnenkamp’s attorney, Mia Murphy of Murphy Law Offices in Meridian, told the Statesman that Bohnenkamp did not deliver finished boats to customers because his business failed.

Bohnenkamp’s attorney said in July she was in contact with “about 17” customers with unfinished boat orders.

Murphy’s comment is a “classic defense to criminal allegations,” Leroy said.

“In cases of this type, you often hear circumstances were beyond the control of the owner rather than an intent to defraud,” he said. “The facts must be carefully examined as to whether or not they indicate either of those circumstances. That’s both the duty and the problem prosecutors face.”

A receptionist said Tuesday that Murphy is no longer taking media calls.

Q: Do prosecutors weigh factors such as whether a conviction would harm victims when deciding whether to pursue criminal charges?

A: Some customers have told the Statesman that they fear a criminal conviction would place Bohnenkamp behind bars, where he could not earn money to repay them.

Prosecutors consider victims’ needs later in the process, Leroy said.

“After a conviction, they may consider a sentencing recommendation to the judge that restitution should be ordered for victims in lieu of incarceration,” he said. “That’s an end-of-case decision for a prosecutor, not an upfront judgment.”

Q: Bohnenkamp, his wife and their previous business, Bohnenkamp’s Custom Weld Marina, filed for bankruptcy in 2009 after facing several lawsuits. They received a discharge of debts in 2011. Can he file for bankruptcy again?

A: That depends on the type of bankruptcy he tries to file, said Meridian bankruptcy lawyer Howard Foley, a former president of the commercial law and bankruptcy section of the Idaho State Bar.

Bohnenkamp’s 2009 bankruptcy was a liquidation under Chapter 7 of the federal bankruptcy code. His debts were discharged two years later.

$100 million The approximate amount former business partner Michael Fox seeks in a lawsuit.

You cannot file another Chapter 7 bankruptcy for eight years after the first filing, making Oct. 29, 2017, the earliest Bohnenkamp could try to file, Foley said.

A person can file a Chapter 13 bankruptcy after four years, meaning Bohnenkamp was eligible for such a filing in 2013, he said. Chapter 13 bankruptcies allow filers to propose a repayment plan to make installments to creditors over three to five years.

A successful Chapter 13 bankruptcy filing could mean Bohnenkamp’s customers would see little if any of their money returned.

If Bohnenkamp were to file for Chapter 13 bankruptcy, a trustee assigned to the case would be the court’s gatekeeper in analyzing his income and what expenses are “reasonable and necessary.”

In the 2009 filing, Foley said Bohnenkamp reported a projected income of $9,231 per month and a schedule of expenses of $1,885 per month for payments on a Ford F-450, a Jeep Wrangler, a motorcycle, two snow machines, and accounts with Les Schwab Tire and the RC Willey furniture retailer.

“I would think a Chapter 13 trustee would have a hard time swallowing that the motorcycle or snow machines are reasonable or necessary,” Foley said.

Asked whether Bohnenkamp might file for bankruptcy again, DeCastro said, “At this point, no. ... You never know truly what’s in someone’s heart, but Chris is a genius, and he does great work, so I’m hopeful that whenever everything is said and done, he will be able to do what he needs to do” to pay off debts.

Q: What would a Chapter 13 filing mean to Bohnenkamp’s customers and their lawsuits?

A: Ordinarily, with bankruptcy filings, an automatic stay order directs all creditors — including customers, in this case — to stop efforts to collect money owed to them, Foley said.

Customers would receive sixth priority for payment. Debts for domestic support, administrative expenses and taxes, unpaid wages from within 180 days of the filing, claims for contributions to employee benefit plans and claims for producers of grain or fishermen would receive higher priority. Customers would then be entitled to their deposits only up to $2,775 as a prioritized payment, Foley said.

If a continued FBI or attorney general’s investigation indicates that criminal intent may have been involved, debtors would not be ordered to stop collection efforts, he said.

Q: Courts can deny bankruptcy claims deemed to be made in bad faith. How do bankruptcy courts determine bad faith?

A: That’s a “squirrely area of the law,” Foley said. A bankruptcy judge could look at several factors in determining whether a Bohnenkamp filing was made in good faith, including:

▪ If the businesses were failing, Bohnenkamp may have accepted payments to build jet boats and boat trailers that he knew he couldn’t deliver.

▪ Instead of trying to complete the orders, Bohnenkamp told customers to come get incomplete hulls and trailers before he moved to New York.

▪ Michael Fox, a former business partner in the jet boat tour business, has sued Bohnenkamp, saying Bohnenkamp cheated Fox out of his ownership stake. “He will be a creditor who can testify about their ethical or lack of ethical business dealings with him,” Foley said.

Q: What’s going on with customers who took loans from KeyBank to finance jet boats?

A: Bohnenkamp referred customers to the bank. One lawsuit named KeyBank as a co-conspirator, saying it lent customers money to buy boats that bank personnel knew would not be built.

The Statesman identified at least six customers with KeyBank loans. None returned calls, and KeyBank would not comment.

Q: What is Bohnenkamp doing now?

A: Bohnenkamp runs passenger tours down the Niagara River. The Fox lawsuit claims the business brings in $15,000 to $20,000 per day.

At public meetings, Youngstown, N.Y., residents have raised concerns about increased tourist and bus traffic caused by the business. Others questioned whether the jet boats’ powerful wakes were damaging shorelines and watercraft moored on the Niagara River.

In a December 2014 meeting, a representative for the business told Youngstown lawmakers that the company had bought 150 acres as a future bus depot where tourists could shuttle to and from the Niagara Jet Adventures marina. The representative also told lawmakers the company projected investing $11 million in regional investment.

Neither the shuttle nor the bus depot has surfaced, Lewiston-Porter School Board President Jodee Riordan said. The walking safety of residents, especially young children, remains threatened, she said.

Idaho Statesman reporter Audrey Dutton and Niagara Gazette reporter Philip Gambini contributed.

Zach Kyle: 208-377-6464 , @IDS_ZachKyle

ZACH KYLE

Zach covers real estate, technology, agriculture and whatever other business matters pop up in the Treasure Valley. He and Audrey Dutton, the other reporter on the Statesman business desk, co-authored three stories on Christopher Bohnenkamp and the claims against him and his businesses.

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