Doug Evans' attorneys say everyone — prosecutors, jury, witnesses, FBI — got his first trial wrong

They want a do-over.
Posted at 5:00 AM, May 01, 2019
and last updated 2019-05-01 05:00:42-04

CINCINNATI — On Tuesday, four months after a jury convicted Evans Landscaping owner Doug Evans of running a minority contracting fraud scheme, he returned to U.S. District Court and asked for a new trial.

“A new trial is the hard and right thing to do,” said Evans’ attorney, Ben Dusing.

During the 90-minute court hearing, Dusing criticized virtually every aspect of the past trial in an effort to persuade U.S. District Court Judge Michael Barrett to throw out the guilty verdicts and grant Evans a new trial.

A jury convicted Evans and his vice president of operations, Jim Bailey, of six charges related to wire fraud after a four-week trial that ended on Dec. 10, 2018.

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.

The jury took only four hours to find Evans, Bailey and the company guilty of all charges, which had involved 40 witnesses and hundreds of documents.

“It is not physically possible for that jury to look at every piece of evidence that was introduced,” said Dusing, who questioned how the jury could have returned a verdict so quickly.

Dusing also 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.”

Dusing also questioned whether the jury genuinely made a unanimous decision. One female juror was visibly upset when she delivered her verdict; he believes she was “strong-armed.”

In the coming weeks, Barrett must decide whether to grant Evans and Bailey new trials — and, if not, how much prison time each should serve. Their potential punishments range from probation and no prison time to as much as five years behind bars.

Also up to Barrett: How large a fine Evans Landscaping should be asked to pay. The upper limit is $1.25 million.

Assistant U.S. Attorney Emily Glatfelter announced in court on Tuesday one charge against Evans and Bailey — misprision of a felony — would be dropped in light of a recent appeals court ruling that had been handed down after the verdict.

The charges that remain are two counts of conspiracy to commit wire fraud and three counts of wire fraud.

Eric Eckes, an attorney for Bailey, argued for an acquittal because of insufficient evidence.

“The government continues to pile inferences to get to Jim Bailey’s intent,” Eckes said, noting that the most important emails in the case were sent to others at Evans Landscaping but not Bailey.

Tuesday's hearing arrived a week after another that set attorneys arguing about the amount of loss suffered in the fraud scheme.

Barrett will 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.

“There was no monetary loss — no pecuniary harm — to the government. In other words, they were not swindled out of money and left with nothing to show for it,” Eckes wrote in a court document. “The work was complete, the work was satisfactory, the services were rendered in full. The loss amount is zero.”

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),” Glatfelter wrote. “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.”

The four former Evans employees who pleaded guilty in the scheme and testified for prosecutors at trial are also awaiting sentencing.

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.

Both Evans and Bailey remain free on bond while they await sentencing.