CINCINNATI -- Federal prosecutors fired back against attorneys for Doug Evans, saying fraud charges should not be dropped against this well-known East Side landscaping company owner.
In a motion filed Wednesday, prosecutors describe Evans’ reasons for asking a judge to drop all charges against him as “weak,” and “not the law.”
U.S. District Judge Michael Barrett will decide at a hearing on Oct. 10 whether the six federal charges against Evans that could send him to prison for as much as 103 years should be dismissed or go forward to a jury trial.
The case is tentatively set for jury trial in March.
“Defendants contend that they were permitted to lie, cheat, and steal their way into the government DBE (disadvantaged business enterprise) programs, as long as they performed the contracts with no financial loss to the government entities. That is not the law, nor is it common sense,” prosecutors wrote in their motion to keep all charges.
Three weeks ago defense attorneys filed motions asking the judge to drop all charges, arguing that prosecutors could not prove core elements of their case against Evans, the Newtown company he founded, Evans Landscaping, and the company’s vice president of operations, Jim Bailey.
A key argument is that since the city of Cincinnati didn't lose any money, and because the demolition contracts were fully performed, no crime was committed.
“At the heart of the matter is that the work contracted for was, in fact, performed,” Evans’ attorney Ben Dusing wrote in his motion. “The work was completed. The purported ‘victims’ have lost nothing.”
But prosecutors, who spent two years building their case of alleged minority contracting fraud, argue strongly that all charges should stand.
“Essentially, this is a weak attempt to repackage what should be a factual determination for the jury,” prosecutors wrote.
Evans, who is Newtown’s largest property owner and the founder of a landscaping empire, is charged with using a small front company to win minority and small business contracts.
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 with the city of Cincinnati and the state for demolishing houses, public schools and other projects.
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: Maurice Patterson and John Dietrich, two former CFOs; and former manager Michael Moeller.
As it stands, Evans and Bailey 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 itself, Evans Landscaping, faces five charges and a potential $1.25 million in fines.
Until now, Evans and Bailey have been in court together, and prosecutors want to keep it that way. But Dusing wants a separate trial for Evans.
Dusing, who successfully defended Kenwood Towne Place developer Matt Daniels against charges of fraud in 2013, claims a joint trial would be unfairly prejudicial to Evans.
“Mr. Bailey will argue that … he acted at the direction of Mr. Evans or other corporate actors,” Dusing wrote. “On the other hand, Mr. Evans will assert (and prove) that he had no involvement or knowledge regarding the formation and operation of Ergon. The defenses of Mr. Bailey and the Evans defendants are therefore diametrically opposed.”
But prosecutors want a joint trial because they allege both men were part of a common scheme.
“The attempt of one defendant to save himself by inculpating another defendant does not require that the defendants be tried separately,” prosecutors wrote. “Essentially the Evans defendants’ argument boils down to a belief that their chances of acquittal are better if they are tried alone.”
Bailey has not filed a motion to sever the trials, nor has he confirmed or denied what defenses he may use.
But Dusing wrote that Bailey may claim he did what Evans’ told him to do. And one defendant may choose to testify, while the other doesn't.
If the case goes to trial, it will offer a window into how this large landscaping company did business with the city of Cincinnati.
With just a shovel and a pickup truck, a young Evans sold mulch to local homes and businesses and spread it himself. After graduating from Turpin High School, Evans didn't go to college and eventually became a small business success story. His company now employs 300.
Evans has also been collecting property for more than 20 years and is Newtown’s biggest landowner. He controls more than 800 acres, including the purchase of Ivy Hills Country Club in 2014.