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Ex-president of Evergreen is charged with fraud; judge urges panel to review carefully 68 counts
By Ed Meyer
Beacon Journal staff writer
Published on Thursday, Dec 04, 2008
Jurors in the Summit County trial of former Evergreen Corp. President David B. Willan began deliberating Wednesday after receiving nearly two hours of instructions on Ohio's complex securities and mortgage-fraud laws.
Retired Common Pleas Judge James E. Murphy, who is handling the case by appointment, warned the panel that his instructions on the law would be ''quite voluminous'' and that its ultimate decision would require ''long, involved and serious'' review of the many charges.
The trial of Willan, ex-chief executive of three Akron businesses — Evergreen Investment Corp., Evergreen Homes and Evergreen Builders — is in its 10th day and involves 68 counts.
Willan is charged with engaging in a pattern of corrupt activity, selling investment securities without a state license, aggravated theft, theft from the elderly and other financial crimes.
Before proceedings began Wednesday morning, Murphy ruled on a defense motion for acquittal, dismissing only one count of selling securities without a license. Allegations in that count were contained in previous counts, the judge said.
In closing arguments, Assistant Attorney General Brad L. Tammaro — the government's lead counsel and a member of the state's Organized Crime Investigations Commission — asked the jury to focus on two words.
''No commissions,'' Tammaro said, pointing to a courtroom projection screen on which those words were highlighted on a registration form for the Ohio Department of Commerce's Division of Securities.
The prosecution argued that Willan, as head of the Evergreen companies, violated the law because he employed Daniel Mohler, a co-defendant, to sell securities to dozens of area investors, even though Mohler was not licensed to do so.
Mohler was paid a hefty commission on the sale of those securities — another violation of
state law, Tammaro argued.
''That is all Dan Mohler had to do in this world,'' Tammaro said.
Tammaro said the state presented evidence showing Mohler was paid more than $187,000 in securities commissions in one year and more than $191,000 in another.
The state must prove in many of the charges, according to the jury instructions, that Willan knowingly committed fraud by participating in a scheme ''to obtain money or property'' from securities sales.
Defense attorney William T. Whitaker spent much of his closing argument attacking government claims that Willan knowingly participated in fraudulent activities.
Willan hired attorney George R. Sarkis of the Akron law firm of Roetzel & Andress, ''one of the most reputable and competent firms in this area,'' Whitaker said, to work closely with state securities officials from 2002 to 2006, the period of the alleged offenses.
Sarkis, who was on the witness stand for more than five hours last week, said he was told by Willan ''to do everything you need to do to keep me in compliance, and go above and beyond that,'' Whitaker told the jury.
It took over a year for Willan and Sarkis to put together Evergreen's advertising circular for the investment certificate sales. And the state's Division of Securities approved everything in the circular before it went out, Whitaker said.
The defense argued that the only way potential investors received the circular was if they requested one after seeing Evergreen newspaper and Web site advertisements.
The circular stated clearly that Evergreen investment funds were high risk, were not insured and were backed only by the combined assets of Evergreen Investment and Evergreen Homes, Whitaker said.
Assets at end of 2005
He said tax returns at the end of 2005 showed Evergreen Investment and Evergreen Homes had $16 million in assets.
Because Willan's business was buying, selling and building homes, those assets primarily were in the form of hundreds of Evergreen homes in the Akron area, Whitaker said.
''This was a thriving, successful company in June 2006,'' he told the jury.
Before a law-enforcement task force raided Willan's West Market Street business headquarters on June 19, 2006, investors were paid month after month and there were no complaints with the Better Business Bureau, Whitaker said.
Sarkis testified that the raid left the business with only a ''shell of an office,'' and Evergreen went out of business shortly afterward.
Andrea L. Whitaker, co-defense counsel and William Whitaker's daughter, dealt with the legal details of licensing and Mohler's commissions.
She said the evidence was irrefutable that companies primarily in the business of selling securities as ''dealers'' must be licensed.
She said because Willan's primary business involved homes, Evergreen Investment was only an ''issuer'' of certificates to raise funds for buying, selling and building those homes.
Letter to state
Defense exhibit No. 1, in fact, was a letter from Sarkis to enforcement lawyers from the state's Division of Securities dated June 1, 2006, 18 days before the raid.
The Sarkis letter, in response to state inquiries warning that payment of commissions ''may be a violation of Ohio securities laws,'' spelled out his interpretation of the difference between a dealer and issuer.
The letter also addressed the issue of Mohler's commission.
Willan was advised, Sarkis wrote in his letter to the state, that commission payments were prohibited only to a ''third-party dealer'' in securities.
The defense argued that Mohler was an employee of Evergreen Homes and began receiving a salary after the state raised concerns about his commission.
In April, Mohler pleaded guilty to three felonies for unlicensed securities sales. Other felony charges were dismissed.
Facing a potential sentence of life in prison if he had been convicted of all charges, Mohler was offered 30 days in a halfway house as part of his plea bargain ''and he thought he better take that,'' William Whitaker told the jury.
Jurors were dismissed at 4:30 p.m. without reaching a verdict.
Ed Meyer can be reached at 330-996-3784 or emeyer@thebeaconjournal.com.
Jurors in the Summit County trial of former Evergreen Corp. President David B. Willan began deliberating Wednesday after receiving nearly two hours of instructions on Ohio's complex securities and mortgage-fraud laws.
Get the full article here.
Comments
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akron, oh
Posted 09:08 AM, 12/04/2008
Sarkis, you are a joke. You pulled the same trick in Parma and your client is being prosecuted in Cuyahoga County. "Well Respected" Roezel was the conduit for funds to be passed to William Hartung
former deputy to Ex. County Exec. Tim Davis, from a briber. Hartung was sentenced to 4 year in the Federal pen and 18 months in the State pen.
How about Willian's connection to the Mayor's office. I am shocked Lieberth hasn't shown up yet to help his friend, Willan, like he did for Plsuqellic's former travel agent, Mike Reed. Maybe he will be there for the sentencing. Reed served time in the State Pen.
