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Judge studies motion to dismiss Willan charges
By Ed Meyer
Beacon Journal staff writer
Published on Tuesday, Dec 02, 2008
The evidence phase of the Summit County trial of former Evergreen Corp. President David B. Willan ended Monday afternoon, with the jury being sent home for the day.
Afterward, the judge and lawyers from both sides worked on instructions for the jury regarding the complexities of the state's securities laws.
Common Pleas Judge James E. Murphy, who is hearing the case by appointment, spent more than three hours studying how those laws affect a renewed defense motion to dismiss the charges against Willan.
Court was adjourned without his decision.
Closing arguments are to begin Wednesday morning after Murphy rules on the motion.
Willan, 38, is facing 69 charges of engaging in a pattern of corrupt activity, fraudulent securities and mortgage transactions, aggravated theft, theft from the elderly and other financial crimes.
Defense lawyer William T. Whitaker based the dismissal motion, in part, on a contention that the state failed to provide ''a shred of evidence'' on an exact interest rate used by the Ohio Department of Commerce to determine whether a license is required for small-loan transactions.
Whitaker told the judge the law says such an interest rate is ''8 percent above the 90-day discounted rate set by the Fed.'' Prosecutors, he argued, did not provide any evidence on the Fed's rate as it applied to 39 charges for making unlicensed small loans and unregistered second-mortgage deals.
''There is no way a jury could find [Willan] guilty of violating an interest rate that they didn't even have any information on,'' Whitaker argued.
Many charges also are based
on the state's contention that Willan made false representations on state licensing records and permits for his Evergreen businesses.
After the state wrapped up its case Nov. 24, Murphy denied the first defense motion for acquittal.
The defense rested its case Monday morning after testimony by Lonnie Rudasill, director of the identification division of the state Bureau of Criminal Identification and Investigation.
Rudasill said he received paperwork dated Aug. 18, 2004, from National Background Check Inc., a private Akron firm, with Willan's fingerprints enclosed. He said he used those prints to perform a criminal background check, which showed Willan had only a 1992 misdemeanor conviction for passing a bad check.
Although it is unclear whether the BCII background check can be connected to any specific charge in the case, the jury heard extensive testimony on it last week from attorney George R. Sarkis, Willan's former legal adviser.
Assistant Attorney General Brad L. Tammaro, the lead prosecutor in the case, contended in cross-examination of Sarkis that Willan never completed the required state background check — waving paperwork in front of Sarkis at one point as Sarkis sat in the witness box.
Whitaker said outside of court that it was a tactic used by Tammaro ''to impugn guilt by parading in front of the jury that he believed David never had his background check done, which is nonsense.''
''He was trying to make it look like it was intentional,'' Whitaker said.
The BCII background check was supposed to be sent to the Commerce Department's Division of Financial Institutions. But the state never received it, Whitaker said, because National Background Check left blank the line indicating to whom it was to be sent.
That omission was ''through no fault of David Willan,'' Whitaker said during a break in the proceedings.
In Rudasill's testimony, the jury also heard Whitaker point out that the BCII is under the direction of the attorney general's office and that Tammaro easily could have turned up the background check.
''All somebody from that office would have had to do is call you up, correct?'' Whitaker asked.
''Yes, sir,'' Rudasill replied.
Tammaro and Assistant Summit County Prosecutor Colleen Sims seemed to poke a hole in the defense claim that a police raid put Willan's Evergreen companies out of business two years ago.
Sheriff's Capt. Stephen M. Barry, supervisor of the task force that conducted the June 2006 raid, testified as a prosecution rebuttal witness.
There were so many business files and computer records seized in the raid, the defense has said, that Willan was unable to resume business.
Barry testified, however, that task force officers made copies of many of the files and began returning them to the Evergreen offices on June 26, 2006, one week after the raid.
''Our priority,'' Barry testified, ''was to keep the businesses in operation, because of the number of [investors] involved, so we could continue to conduct our investigation.''
Tammaro said in opening statements that investors lost ''millions upon millions'' in the alleged Evergreen scam.
The case is in recess today because of another commitment for one of the defense attorneys.
Ed Meyer can be reached at 330-996-3784 or emeyer@thebeaconjournal.com.
The evidence phase of the Summit County trial of former Evergreen Corp. President David B. Willan ended Monday afternoon, with the jury being sent home for the day.
Get the full article here.
Comments
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akron, oh
Posted 07:12 PM, 12/02/2008
Did the Prosecutor lay down in this one too?
Posted 08:35 AM, 12/03/2008
Expect the case to be dismissed on the grounds there was no evidence presented to convict. This is what the judge has been complaining about since last summer when he told the Prosecutor to get their case in order. Walsh was too busy campaiging to actually work on the case.
Posted 12:51 PM, 12/03/2008
this guys dealings seemed a likttle shakey .what we are seeing in the mortage industry as a whole is also shakey .if this guy is guilty then a lot of bankers are also guilty (@@)
Posted 03:45 PM, 12/03/2008
Tom:
The ONLY thing the banks are guilty of is giving loans to people who didn't deserve the loans to begin with and didn't deserve the opportunity of homeownership!
Why are the banks the guilty party and the unqualified borrowers the victims? If anything, the banks should be commended for risking their money on undeserving buyers. The banks lose millions while the borrower who didn't deserve lending to begin with just walk away from thier obligations and then cry "poor me I'm a victim of predatory lending" ... no you are not a victim ... you were and are an underserving borrower who should not have been afford the opportunity to enjoy the American Dream!
