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Ruling rejects defense request to throw out evidence in upcoming securities and mortgage fraud trial
By Ed Meyer
Beacon Journal staff writer
Published on Thursday, Aug 28, 2008
A judge has denied a defense challenge of a 2006 search warrant used to seize evidence from the Akron businesses of former Evergreen Corp. President David B. Willan.
The decision by retired Summit County Common Pleas Judge James E. Murphy gave a boost to the government's case against Willan, who goes on trial in November.
Early this month, defense attorney William T. Whitaker told the judge during a suppression hearing that the search warrant contained ''false and misleading information'' about Willan's allegedly pocketing $1.2 million from his three companies and, therefore, the evidence obtained from the search should be thrown out.
A sheriff's investigator, Gerald Hall Jr., testified in the Aug. 8 hearing that ''tons'' of Evergreen business files and computer records were seized by a task force during the raid on June 19, 2006.
That raid put Willan's three companies — Evergreen Investment Corp., Evergreen Homes and Evergreen Builders — out of business. And it ultimately laid the groundwork for Willan's indictment.
Willan, 38, who is out of jail on bond, was charged Dec. 19, along with others, in a 147-count indictment alleging widespread Akron-area securities and mortgage fraud.
The search warrant said Willan ''pays himself by taking money as he needs it, as a draw, with no set salary.''
It also said: ''In a 2005 TEN MILLION securities offering circular, internally prepared financial statements of Evergreen Homes LLC reflects draws of 1.2 Million dollars within a four month period (January 05 through April 05)!''
But in testimony by Willan's business lawyer, Whitaker attempted to show there were six classes of additional Evergreen corporate members at that time, and that they received most of the money in question from ''member draws.''
Murphy, who is presiding over the case as a visiting judge, concluded the Aug. 8 hearing by ordering the defense to show how much money Willan received and how much the other corporate members received.
The defense, according to trial procedures, has the burden of proof in such a hearing.
After reviewing additional briefs from both sides, Murphy ruled last week that money taken in by Evergreen Investment from the sale of investment certificates was then transferred to Evergreen Builders for the remodeling of homes, the purchase of homes and home mortgages.
''It is unclear whether there are other owners or members of the [Evergreen Builders] corporation,'' Murphy wrote in his decision, adding that there was ''no evidence of other members other than the use of the designation 'members' in the plural form.''
Citing additional testimony by Willan in a Domestic Relations Court divorce hearing in April 2005, Murphy noted that Willan ''indicated he was the sole owner of Evergreen Investment and Evergreen Builders.''
Therefore, Murphy concluded, information provided by investigators to a judge to obtain the warrant ''did not contain any deliberate misstatements and had sufficient content'' for probable cause to conduct the search.
Willan's trial is to begin Nov. 17.
Ed Meyer can be reached at 330-996-3784 or emeyer@thebeaconjournal.com.
A judge has denied a defense challenge of a 2006 search warrant used to seize evidence from the Akron businesses of former Evergreen Corp. President David B. Willan.
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