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By Ed Meyer
Beacon Journal staff writer
POSTED: 03:30 p.m. EST, Nov 26, 2008
The trial of former Evergreen Corp. President David B. Willan was postponed until next week after defense and prosecution lawyers battled over the authenticity of another record in the voluminous case.
Retired Summit County Common Pleas Judge James E. Murphy, who is hearing the case by appointment, sent the jury home this morning with instructions to return at 9 a.m. Monday.
The record in question, which was introduced by the defense, apparently documented that Willan had his fingerprints made in August 2004 at an Akron firm for a criminal background check that was to be done by the Ohio Bureau of Criminal Identification and Investigation in London, Ohio.
Defense witness George R. Sarkis, a Roetzel & Andress attorney who was on the witness stand for more than five hours Tuesday, was questioned at length about such a record by Assistant Attorney General Brad L. Tammaro, the government's lead counsel in the Evergreen case.
Sarkis, Willan's former legal adviser, acknowledged that, if there was a record of a background check on Willan, it was not transmitted to the Ohio Department of Commerce's Division of Financial Institutions, as required.
Such records are required for state-authorized registration forms to make second-mortgage loans.
Willan, 38, is on trial on 69 counts of mortgage and securities fraud and other alleged financial crimes in the Akron area from 2002 to 2006.
An important part of the state's evidence against him, according to testimony, is that Willan made false representations on state records required to run his business or failed to submit the records.
William T. Whitaker, Willan's lawyer, attempted this morning to authenticate the background-check record with testimony from Mary Lou Daugherty, chief deputy clerk of Summit County.
But Daugherty said she could not officially certify it, and Murphy dismissed her.
The judge then allowed a defense request for a BCII official to testify about the record.
After the hearing, Whitaker said he was in the process of getting a subpoena and would have a BCII official ready to testify Monday morning.
Last week, on the first day of the state's case, Murphy dismissed a prosecution witness in the middle of testimony after the witness failed to produce a certified copy of a 1992 misdemeanor conviction against Willan for passing a bad check.
Prosecutors later authenticated the conviction, and it was entered into evidence.
As the two sides battled over the BCII record this morning, Tammaro told Murphy it had nothing to do with any of the charges against Willan and should be thrown out.
The 1992 conviction was the basis for charges, Tammaro said, because Willan stated on a Division of Securities record that he had ''never been convicted of any kind of crime, when in fact, he was.''
Tammaro said that ''the question of whether [Willan] actually submitted for a fingerprint check or not is irrelevant.''
Murphy cut him off and said: ''It's not irrelevant.''
The jury heard Sarkis' lengthy testimony Tuesday about the record pertaining to the criminal background check. Murphy, however, did not allow the jury to hear this morning's testimony.
As the two sides battled over the record, Murphy asked Tammaro and his co-counsel, Assistant Summit County Prosecutor Colleen Sims, whether they had any previous knowledge of it.
Both said they did not.
The BCII, which also has an office in Richfield, is a state agency under the direction of the attorney general's office.
Ed Meyer can be reached at 330-996-3784 or emeyer@thebeaconjournal.com.
The trial of former Evergreen Corp. President David B. Willan was postponed until next week after defense and prosecution lawyers battled over the authenticity of another record in the voluminous case.
Retired Summit County Common Pleas Judge James E. Murphy, who is hearing the case by appointment, sent the jury home this morning with instructions to return at 9 a.m. Monday.
The record in question, which was introduced by the defense, apparently documented that Willan had his fingerprints made in August 2004 at an Akron firm for a criminal background check that was to be done by the Ohio Bureau of Criminal Identification and Investigation in London, Ohio.
Defense witness George R. Sarkis, a Roetzel & Andress attorney who was on the witness stand for more than five hours Tuesday, was questioned at length about such a record by Assistant Attorney General Brad L. Tammaro, the government's lead counsel in the Evergreen case.
Sarkis, Willan's former legal adviser, acknowledged that, if there was a record of a background check on Willan, it was not transmitted to the Ohio Department of Commerce's Division of Financial Institutions, as required.
Such records are required for state-authorized registration forms to make second-mortgage loans.
Willan, 38, is on trial on 69 counts of mortgage and securities fraud and other alleged financial crimes in the Akron area from 2002 to 2006.
An important part of the state's evidence against him, according to testimony, is that Willan made false representations on state records required to run his business or failed to submit the records.
William T. Whitaker, Willan's lawyer, attempted this morning to authenticate the background-check record with testimony from Mary Lou Daugherty, chief deputy clerk of Summit County.
But Daugherty said she could not officially certify it, and Murphy dismissed her.
The judge then allowed a defense request for a BCII official to testify about the record.
After the hearing, Whitaker said he was in the process of getting a subpoena and would have a BCII official ready to testify Monday morning.
Last week, on the first day of the state's case, Murphy dismissed a prosecution witness in the middle of testimony after the witness failed to produce a certified copy of a 1992 misdemeanor conviction against Willan for passing a bad check.
Prosecutors later authenticated the conviction, and it was entered into evidence.
As the two sides battled over the BCII record this morning, Tammaro told Murphy it had nothing to do with any of the charges against Willan and should be thrown out.
The 1992 conviction was the basis for charges, Tammaro said, because Willan stated on a Division of Securities record that he had ''never been convicted of any kind of crime, when in fact, he was.''
Tammaro said that ''the question of whether [Willan] actually submitted for a fingerprint check or not is irrelevant.''
Murphy cut him off and said: ''It's not irrelevant.''
The jury heard Sarkis' lengthy testimony Tuesday about the record pertaining to the criminal background check. Murphy, however, did not allow the jury to hear this morning's testimony.
As the two sides battled over the record, Murphy asked Tammaro and his co-counsel, Assistant Summit County Prosecutor Colleen Sims, whether they had any previous knowledge of it.
Both said they did not.
The BCII, which also has an office in Richfield, is a state agency under the direction of the attorney general's office.
Ed Meyer can be reached at 330-996-3784 or emeyer@thebeaconjournal.com.
Comments
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Posted 04:19 PM, 11/26/2008
Has the prosecution presented any evidence that Evergreen defrauded anyone? It seems the basis of their argument is that Willan failed to disclose a bad check that he had bounced for a freaking utility bill years ago ... technically, not disclosing that is illegal but it could've been an oversite as well. Furthermore, would disclosing this DEFINITELY resulted in a rejection of his applicattion by the state?
For the millions of tax dollars and thousands of hours of investigation, this seems like a weak argument. Also, how didn't the prosecution know about BCII check????? Especially since Tammaro works for the Ohio AG!
Posted 05:50 PM, 11/26/2008
Yea i agree, what a waste of our money. I havent heard 1 piece of evidence that suggests this man was tryin to rip people off
Posted 12:19 PM, 11/27/2008
This is what our Prosecutor does. I notice since the election is over she's not commenting in the paper every day. This is what the people of Summit county voted for and this is what they are going to get. Maybe Mendenhall should get rid of Don then go after Walsh. Recall would be a great idea.
