CINCINNATI — Evans Landscaping owner Doug Evans asked a judge to acquit him of fraud charges and grant a new trial, saying one juror may have been strong-armed into finding him guilty.
In motions filed late Tuesday, Evans and his vice president of operations, Jim Bailey, asked U.S. District Judge Michael Barrett to throw out the guilty verdicts. Both focused on the behavior of one juror who appeared to be crying in court on Dec. 11, when the jury announced they found Evans and Bailey guilty of six charges related to wire fraud.
“Juror 4 in particular seemed extremely distraught. It appeared that she was crying and her body language demonstrated clear indecision,” Evans’ attorney, Ben Dusing, wrote in his motion. “The circumstances strongly suggested that she was unsure, had been strong-armed by her fellow jurors, and the verdict was not in fact her true verdict.”
Prosecutors accused Evans of creating a front company, Ergon Site Construction, with IT employee Korey Jordan as a black figurehead to win minority and small business demolition jobs from the City of Cincinnati and the state worth millions.
The jury took less than four hours to find Evans, Bailey and Evans Landscaping guilty of all charges at the end of a month-long trial, which had involved 40 witnesses and hundreds of documents.
The verdict came so quickly, few people were in the courtroom when it was announced. Most days had drawn dozens of spectators.
“It defies common sense to believe that the jury could take that little time to come to convict if it was properly doing its job,” Dusing wrote.
After a verdict was announced, jurors took awhile to return to the courtroom.
“The first sign that something was amiss was the jury's long delay (30 minutes) in returning to the courtroom after it had signaled that it had reached a verdict. The delay was unusual,” wrote Dusing, suggesting jurors were not confident in their verdict or that some were “strong-armed” into signing onto it.
After the jury announced its verdict and the judge polled each juror individually, Dusing said Juror 3 and Juror 4, “appeared to have serious reservations.”
The court keeps the identity of jurors confidential.
Afterward, Dusing raised the issue that the verdict was not unanimous. He asked the judge to speak to Juror 4 individually, but Barrett declined because he did not want to single her out.
Instead Barrett opted to re-poll the entire jury. Each juror agreed, for the second time, that their verdict was guilty of all charges.
Afterward, federal prosecutors asked that no attorneys be permitted to contact any jurors. The judge agreed.
But Bailey’s attorney, Candace Crouse, filed an unusual motion asking that defense attorneys, or an independently appointed attorney, now be allowed to question jurors about the verdict.
“During the Court’s reading of the verdict, Juror No. 4 was visibly distraught. A record was made at the time regarding the juror’s abnormal behavior,” she wrote.
In her motion for acquittal or a new trial, Crouse argued that there wasn’t enough evidence to convict Bailey.
“There is simply no evidence to indicate that Bailey was involved in financial decisions at Evans, much less any decisions about Ergon,” Crouse wrote. “Every witness attested to the fact that he was not involved in setting up Ergon or in the decisions about how Ergon would operate.”
Dusing filed a 62-page motion asking for a new trial for Doug Evans and Evans Landscaping criticizing the trial as unfair and the behavior of nearly everyone involved, from the prosecutors and witnesses, to the judge.
No sentencing date has been set for Evans or Bailey, who likely face two to five years in prison. Evans Landscaping also faces up to a $1.25 million fine.
Sentencing may happen in April or May, but first Barrett must rule on these motions for acquittals and new trials.
While these motions are standard after criminal convictions, they are rarely successful, former federal prosecutor Ralph Kohnen said.
“These are Hail Marys,” said Kohnen, who in 32 years as a prosecutor and defense attorney never saw a judge grant a motion for a new trial in a case he was involved in.
“It’s a long shot.”
