CINCINNATI - Doug Evans may be Newtown’s largest property owner with a multi-million dollar real estate portfolio, but attorneys for this well-known landscaping company owner don’t want jurors in his upcoming criminal trial to hear about any of that.
As the trial nears, attorneys filed a slew of motions in U.S. District Court on Monday asking a judge to limit what jurors hear in the criminal case against the owner of Newtown-based Evans Landscaping.
Evans faces six criminal charges for allegedly using a shell company to win minority and small business contracts from the city of Cincinnati and the state to demolish houses, public schools and other projects. He faces up to 103 years in prison if convicted.
With trial set to begin on Nov. 14, Evans’ attorneys filed four motions seeking to ban evidence that could be damaging to his case – such as jokes he may have made about “going to jail,” or evidence of his wealth.
“Mr. Evans’ financial success allowed him to lead a lifestyle beyond that of the average juror,” Evans’ attorney, Ben Dusing, wrote in a motion. “The only possible reason for the government to seek introduction of documents or testimony of Mr. Evans’ wealth and affluence is to portray Mr. Evans as unlikeable in the eyes of the jury.”
Evans, who built a landscaping empire, has been collecting property for more than 20 years and controls more than 800 acres, including the purchase of Ivy Hills Country Club in 2014.
He owns industrial warehouses, farming land, parcels adjoining railroad lines and hilltop land overlooking the Little Miami River that was once owned by George Washington. That real estate portfolio was valued at roughly $18.8 million in 2015, according to auditor records from Hamilton and Clermont counties and listings for his property.
Evans’ attorneys also want to ban possible evidence that he did not pay employees prevailing wage on government contracts, or that he underpaid or partially paid them.
“There is an extremely high risk that the jury would conclude that payment or nonpayment of prevailing wage, including partial payment or underpayment, is somehow evidence that the Evans’ defendants were more likely to have engaged in the fraudulent activity the government is alleging,” Dusing wrote. “The risk is also extremely high that the presentation of such evidence will confuse the jury.”
Dusing also doesn’t want jurors to see possible evidence of altered photos from government jobs.
“Whether Ergon prepared or submitted edited photographs as evidence of work performed has no bearing on the government’s allegations … the government should be prohibited from introducing such documents or testimony,” Dusing wrote.
Prosecutors allege that Evans and an IT employee, Korey Jordan, created a new company, Ergon Site Construction, in 2008 to act as a front for Evans to win minority and small business contracts.
The city awarded Ergon 140 demolition contracts worth nearly $2 million.
Jordan agreed to plead guilty to one count of conspiracy to commit wire fraud. As part of his plea agreement, he will testify at trial. Three other Evans Landscaping employees also signed plea agreements admitting their guilt and will testify at trial.
Whatever jurors believe about the true relationship between Jordan and Evans may determine Evans' fate at trial.
Evans has insisted he was just trying to help Jordan start his own minority-owned business by giving him startup money, guaranteeing a line of credit and teaching him the business.
Evans will go to trial with Jim Bailey, vice president of operations at Evans Landscaping. Both men face the same charges: two counts of conspiracy to commit wire fraud, three counts of wire fraud and one count of misprision of a felony. The company, Evans Landscaping, faces five charges and a potential $1.25 million in fines.
In the coming weeks, U.S. District Judge Michael Barrett will make final rulings on evidence in the case.
Defense attorneys want Barrett to exclude all the evidence FBI agents collected during their raids of Evans Landscaping, and four search warrants – including more than two million pages of documents.
Dusing argues the search warrants are flawed -- and illegal -- because they fail to entirely describe the places to be searched and the things to be seized.
Particularly flagrant, Dusing says, is a 2017 search warrant allowing the FBI to see all of Evans’ emails back to the 1990s -- “the entire contents of his inbox, if you will.”
Barrett will hear arguments on that motion on Oct. 2.
On Monday Dusing filed another motion asking the judge to either dismiss the indictment or ban 20 emails between Evans Landscaping employees and attorneys, because prosecutors should never have seen them.
“The government inappropriately invaded one of the most sacrosanct sanctuaries … communication between attorney and client relating to matters in the nature of legal advice,” Dusing wrote in a motion. “On top of that – and to add insult to injury – the government has effectively wasted the Evans defendants’ time and money.”
Dusing wants the government to repay $40,000 to Evans’ attorneys for time spent on sorting these emails.
When the FBI raided Evans Landscaping on July 7, 2015, it seized the company’s servers and all emails going back decades, including hundreds to and from attorneys.
Since prosecutors are not allowed to see communications between attorneys and their clients, the government used a “taint team” of attorneys to sort through the emails.
“Now, after this nearly year-long, painstaking process ... it turns out the prosecution team is (and has been) in possession of 20 privileged communications between Evans Landscaping attorneys and other persons affiliated with Evans Landscaping,” Dusing wrote.
The judge will hear arguments on the newest motions at a court hearing on Oct. 19.
Prosecutors also filed a motion asking for more information on an expert witness who will testify that Evans did not profit from his relationship with Ergon.