CINCINNATI — Exactly six months ago -- on Dec. 10, 2018 -- a jury convicted Evans Landscaping owner Doug Evans of minority contracting fraud that reaped the company millions in state and city demolition jobs.
Six months later, Evans remains free on bond and it is uncertain when, or how, his case will finally end.
No sentencing date has been set for Evans or his vice president of operations, Jim Bailey, who was also convicted. A federal judge has not yet ruled on their motions for acquittals and new trials.
“It’s a tough thing for the defendants because obviously the entire affair has taken a toll on them, in every way. They continue to maintain their innocence,” said Evans’ attorney, Ben Dusing. “But Doug continues to go into work every day at 7 a.m., work his butt off just like he always has, and employ 250 or so folks and take care of their families.”
Long delays before sentencing are common after lengthy, complicated trials. In the Evans case jurors heard from 40 witnesses over four weeks and saw hundreds of emails.
“Federal judges can basically take as long as they need to make sure that they are fair to both side and they get it right,” said former federal prosecutor Ralph Kohnen, who is now a partner at Taft Stettinius & Hollister.
Still the public wonders.
“Does anybody know when Doug Evans is going to be sentenced? It seems like it should have happened by now,” a Newtown man asked on the NextDoor neighborhood social network a few weeks ago.
His question prompted a firestorm of 43 responses from neighbors with vastly different viewpoints.
“Doug Evans is guilty. The other side is he employs two hundred people. I happen to know he started out with a five-gallon can of gas on Saturday mornings and a push mower. Yeah, lock him up and let 200 families flounder,” a Madisonville man posted on NextDoor on May 30.
Whatever happens in the coming weeks, Dusing is confident that Evans Landscaping, which has become a landscaping empire on the East Side, will survive.
“The only certainty really, in terms of the outcome of all this, is that Evans Landscaping will continue doing what it’s always done: employing a lot of people and serving a lot of loyal customers. That much I can guarantee,” Dusing said.
The uncertainty is also a topic at Ivy Hills Country Club, where Evans is part owner.
“As most of you know, Doug Evans received a disappointing verdict this week,” co-owner Norb Mayrhofer wrote in an email to club members on Dec. 13, 2018. “I want to assure everyone that this will have absolutely no impact on the operations of the club. We are totally committed to making IHCC one of the best clubs in Cincinnati.”
Before a sentencing can be scheduled, U.S. District Court Judge Michael Barrett must first rule on motions for a new trial and acquittal.
“In my experience, judges usually deny motions for judgment of acquittal and for a new trial, and they usually schedule a sentencing hearing to take place shortly after that,” Kohnen said.
But Dusing did his best to convince the judge that “a new trial is the hard and right thing to do” at an April 30 hearing in which he criticized virtually every aspect of the past trial.
Prosecutors accused Evans of creating a front company, Ergon Site Construction, and using black IT employee Korey Jordan as a figurehead to win millions of dollars in minority and small business demolition jobs from the city of Cincinnati and the state of Ohio.
Dusing criticized the jury, prosecutors, witnesses and even the judge, who he said committed legal errors during the trial. He described prosecutors’ closing arguments as “improper,” the lead FBI agent as “egregiously prejudicial,” witnesses as “parrots,” and the judge’s instructions to the jury as “probably a legal error.”
Assistant U.S. Attorney Tim Mangan described Dusing’s claims as “bizarre,” and “ridiculous.”
“This is what normal trials are like,” Mangan said. “The jury makes a call on what actually happened.”
The final decision is up to Barrett.
“When it comes to post-trial motions, some legal experts have even called the presiding judge, ‘the thirteenth juror,’” Kohnen said.
If Barrett rules that the guilty verdicts stand, he must decide how much prison time Evans and Bailey should serve for convictions of two counts of conspiracy to commit wire fraud and three counts of wire fraud.
Their potential punishments range from probation and no prison time to as much as five years behind bars.
Barrett must decide the dollar amount of the fraud, which could impact the range of prison time recommended for the crimes under federal sentencing guidelines.
At trial, jurors heard from four former Evans employees who testified that fraudulent invoices, checks and photos were created to make Ergon seem like a legitimate minority business when in fact it was part of Evans.
Prosecutors believe the fraud cost the government $2.86 million — the value of the city and state contracts that Ergon received.
However, defense attorneys said there was zero dollar loss, because both city and state governments had all of the contracted demolition projects completed.
“No one really disputes that all the contracted work got done, and at the lowest possible price,” Dusing said. "So, part of (the delay) I think is the reality that the court now finally has to really engage some of the tricky legal and evidentiary issues involved.”
Prosecutors said the real loss is to the minority and small business contractors who were supposed to receive government work but lost it because of Evans and Ergon.
“Legitimate SBE (small business enterprise) companies were harmed because their bids were competing against a fraudulent SBE (Ergon) that had the financial resources of a huge company (Evans Landscaping),” Assistant U.S. Attorney Emily Glatfelter wrote in a court document. “As a result, Evans Landscaping (through Ergon) could afford to bid very aggressively to obtain many demolition contracts, thereby depriving legitimate SBE’s of the available work.”
Barrett must also sentence the former Evans employees who pleaded guilty in the scheme and testified for prosecutors at trial.
Korey Jordan, who was the figurehead of Ergon Site Construction, pleaded guilty to conspiracy to commit wire fraud.
Former general manager Mike Moeller, who bid minority state demolition jobs worth $10 million using Evans and Ergon, pleaded guilty to conspiracy to commit wire fraud.
Former CFO Maurice Patterson pleaded guilty to conspiracy to commit wire fraud, and former CFO John Dietrich pleaded guilty to misprision, or concealment, of a felony, for their roles in the scheme.
Also up to Barrett: How large a fine Evans Landscaping should be asked to pay. The upper limit is $1.25 million.
“Doug knows one thing, really - hard work - and anyone that knows him knows that that’s how he handles everything, and that’s how he’s dealt with the verdict,” Dusing said. “If I have to talk to him about legal stuff I have to go out there and be on-site with him, driving around in his truck as he checks in with all his employees and customers.”