Bryan Punturo
that a threat was made, that the threat promised to injure person or property, and that the threat was carried out for profit. “This is a one-count charge, your honor,” Payok said. “We believe we have one witness to call that will establish those three elements.” It didn’t turn out to be so straightforward. The hearing dragged on for hours, and when the day was over, the lawyers still had more to talk about. The hearing was stayed for another day and another witness and, after more hearings, more testimony, more arguments and thousands of pages of briefs filed with the district court, the preliminary exam finally concluded on Sept. 29 when Phillips found that prosecutors failed to produce adequate evidence that a crime had been committed. They’d proved the defendant did some “nasty, mean-spirited and reprehensible” things, Phillips said, but they didn’t prove a crime. Moothart said he was pleased with the result, but he disagreed with Phillips’ characterization of his client. “First of all, let me say this: I have all the respect in the world for Judge Phillips, and he is a very good judge and a hardworking guy,” Moothart said. “Having said that, Judge Phillips only heard one side of the story.”
Saburi Boyer’s business, Traverse Bay Parasail, has soared above East Grand Traverse Bay for two decades. PHOTO COURTESY TRAVERSE BAY PARASAIL
Moothart said if Punturo would have testified — which defendants don’t do at preliminary examinations — another side of the case would have come out. PUNTURO FIRES BACK In an interview with the Express, Punturo said Boyer approached him to make a deal in 2014. He said he doesn’t understand the criminal charges because it seemed to him like it was Boyer who wanted to corner the parasailing market on East Bay. Boyer wanted to lease space at the ParkShore dock after he purchased Punturo’s son’s boat, but Punturo said he didn’t want to have Boyer back at his resort. “I had no intentions with having a relationship with Saburi Boyer because I’d had them in the past and they all went bad,” Punturo said. Punturo said he planned to run his own parasailing business. He said Boyer was the first to make threats. He pointed to a text message Boyer sent him that promised he would out-compete Punturo, and Punturo wouldn’t survive
if he got into parasailing because Boyer had so much more experience. “He said, ‘What will it take for you not to go in business against me?’” Punturo said. In the trail of emails and text messages, it is Punturo who introduces the idea of “competition rights,” but Punturo said he believes that’s what Boyer wanted. And that’s what Boyer got. Punturo said it was a mutually beneficial contract, and the only reason it went sour was the weather in the summer of 2014 — it was too cold and windy. Punturo said if that season were normal, Boyer would have made enough money to pay the contract and keep a nice profit for himself. Instead, the parasailing business on East Bay was terrible that year, and Boyer fell behind on payments. “Everything was pretty simple and innocent and straightforward business until Saburi went to Brace Kern and said, ‘Oh my god, I’m being sued because of a contract,” Punturo said. He said he believes his behavior looked reprehensible to Phillips after the preliminary hearing testimony because of a message he’d written in anger to Boyer after Boyer became ill in which Punturo called him out and demanded payment. He said he was provoked and had been angry when he wrote that. “It makes me look bad, but if you take it in the proper context (in light of the series of events that transpired between the two), it’s all very palatable and understanding,” Punturo said. Boyer maintains he wasn’t trying to corner the market and that he only paid Punturo out of fear. “I felt like I was being extorted through this entire timeline,” Boyer said. “When I was going through it, I felt like it was going on every day.” A WITNESS FOR THE DEFENSE Punturo’s actions might have been aggressive, but they were legal, Moothart argued. “Operating a lawful business is a constitutional right,” Moothart said. The heart of Moothart’s argument is that it isn’t against the law to threaten to do something that’s legal, and undercutting a competitor isn’t against the law. Moothart called a single witness, Harding, the parasailing competitor, to counter some of Boyer’s testimony. Harding, a 42-year-old who’s known Punturo for 25 years and Boyer for at least 15, testified that he leased space at Punturo’s resort where he ran a parasailing and boat rental business. He hired Boyer as a captain in the early 2000s. For a while they operated the parasailing business as 50-50 partners until Boyer bought him out. Harding stayed on as the owner of the boat rental business, and they worked side by side until 2006, when Boyer moved to the Sugar Beach Resort. In 2014, when Casey Punturo sold his parasailing boat to Boyer, Harding ran his business at a property he leased just down
Saburi Boyer
the beach from the ParkShore Resort. He said Boyer repeatedly approached him that spring, interested in coming to terms with Harding in an effort to make sure Harding didn’t compete against his parasailing business. Harding said Boyer offered him three choices — to pay him not to have a parasailing business at his dock, to let Boyer pick up parasailing customers from his dock and pay him a percentage, or to install a computer program Harding could use to refer customers to Boyer in exchange for a cut. When Harding refused the offers, he said Boyer proposed they agree upon a minimum price for parasail rides over the bay. “He said there’s no reason for anybody to be flying in Traverse City for less than $100 a person,” Harding testified. Boyer denied that he ever attempted to set prices or offered to pay Harding not to compete against him. “There was never any mention of a noncompete from me to Eric or to Bryan,” he said. CASE DISMISSED In his ruling, Phillips found that Punturo’s actions skirted close to criminality but didn’t cross the line. The rationale for that lies in case law, which has found that extortion must include the threat of an illegal act, Phillips said in his decision. In other words, something like, “Pay me or I’m going to burn your house down.” Phillips ruled that prosecutors didn’t prove an illegal threat in this case. But that didn’t stop Phillips from commenting on what he thought of Punturo’s actions and whether they perhaps should be illegal. “What Mr. Punturo did in my opinion was nasty and mean-spirited, reprehensible conduct in the way he negotiated. But there’s been no law presented that what he did was illegal. Maybe it should be illegal,” Phillips said. “As for whether it should be illegal or not, obviously, that’s not this court’s providence.” Phillips predicted the case would “go up and up and up” in the appellate court system because it presented a legal question in need of clarity. The Michigan attorney general’s office has filed a notice of appeal to the 13th Circuit Court but hasn’t yet submitted arguments. A spokesperson from the attorney general’s office did not respond to messages seeking comment. Kern filed a federal lawsuit on Boyer’s behalf that seeks $750,000 in damages from Punturo. Moothart said he had not seen a copy of the lawsuit. Nonetheless, that noncompete contract is long gone. Punturo found a new operator to run a parasailing business at his resort, Grand Traverse Parasail. Boyer still runs his parasailing business on East Bay, and his website is taking reservations for the 2017 season.
Northern Express Weekly • november 21, 2016 • 21