To further elaborate on the reasons why COB’s (CommunityOne Bank’s) involvement is a game changer and the Brady violation is golden.

It is without question that if a client gives me $100 to invest and I instead spend it for my benefit, then I am a fraudster. But if a client gives me $100 and I invest it into what I believe is Simmons’ superior investment fund and Simmons spends it for his personal benefit, then Simmons is the fraudster. I have been deceived but I did not commit fraud. Further, this could not be a conspiracy because Simmons and I definitely did not have a common goal and I was completely unaware that he was spending my client’s investments for his personal benefit. In fact, the government’s accusation of me conspiring with Simmons so that Simmons could spend my client’s money is devoid of logic.

At trial, there were only 2 “persons” who could have provided testimony to the jury about the Government’s illogical accusations: Keith Simmons and COB (i.e. officials and/or employees). Simmons did testify at my trial and said all the right words. But my attorney’s questions – which could have been very powerful – were relatively weak and ineffective. Unfortunately, the prosecutor was able to discredit Simmons’ testimony to the jury.
However, had COB been available to testify, the prosecutor could not have discredited their testimony. COB’s testimony had already been admitted, affirmed, and accepted before this same court (Judge Conrad) in their Deferred Prosecution Agreement – an agreement crafted by the very same prosecutor who was now trying to hide it.

Unindicted COB witnesses would have provided credible testimony about 1) me not being in a conspiracy with COB or Simmons, 2) me receiving no benefit from Simmons, 3) how COB’s deceptive actions (from December 2007 through December 2009) made Simmons’ operation appear legitimate and profitable especially during the summer of 2009 when Simmons was experiencing liquidity issues, and 4) how COB failed to close Simmons’ account when they discovered his fraud but allowed him to continue receiving and spending investors’ money. This testimony – consistent with COB’s confessions in their criminal file and DPA – would have had a likely effect on the jury’s decision. This makes the Government’s admitted suppression a prima facie Brady violation.

In the prosecutor’s closing arguments, the conspiracy argument begins to crack and he states, “As I told you in the beginning, this defendant is not charged with creating the Ponzi scheme with Keith Simmons. He’s not charged with that. It is not the charge. it’s changing the subject. he’s not charged with creating the Ponzi scheme with Keith Simmons. …I understand, he and Keith Simmons were not in on it together, it’s changing the subject. But changing the subject doesn’t change what happened.” (Trial transcript – 3:12-cr-00068, Doc. #277, page 60 of 115).  However, when you read the opening statement by the prosecutor, you’ll think that Simmons and I were joined at the hip.

But then on page 71 of 115, the judge is speaking to the jury and states, “The Grand Jury realleges and incorporates by reference herein the allegations contained in paragraphs 1-130 of the Bill of Indictment and further alleges that: From in or about October 2007 through in or about April 2010, in Mecklenburg County, within the Western District of North Carolina, and elsewhere, the defendants Jonathan D. Davey, Jeffrey M. Toft, Chad A. Sloat, Michael J. Murphy, did knowingly combine, conspire, confederate, and agree with each other and with Keith Simmons, Bryan Coats, Stephen Lacy, …and others…” 
It seemed that the Prosecutor argued both sides. Was I in a conspiracy with Simmons or not?

But COB’s testimony doesn’t stop there. In learning how a DPA works, the jury would have learned that despite partnering with Simmons and enabling him to scam and launder $35M, no COB employee was indicted nor did COB have to pay restitution; just a $400k fine – a relative slap on the wrist. The jury would have been shocked to learn that Simmons employed a recent high school graduate – the younger brother of Emily Parsons, COB’s branch manager in Simmons’ hometown.

COB’s testimony would have put the prosecutor in an unfavorable light when COB’s testimony revealed that 2 years earlier the CFTC (Commodities and Futures Trading Commission), in coordination with the prosecutor, sued me and the three partners of Black Diamond (Simmons, Coats, and Salazar) as the operators of the Black Diamond conspiracy. But COB was not included in the suit or even mentioned as a co-conspirator. Yet just three months later, COB signed their DPA – confessing to being a co-conspirator in Simmons’ Black Diamond conspiracy. Thus COB – an acknowledged criminal organization – was allowed to escape both criminal and civil liability.

Most notably, the criminal acts committed by CommunityOne Bank – which led to its confession of being a co-conspirator in Keith Simmons’ criminal organization – rival the same criminal acts committed by the Commodities and Futures Trading Commission. If COB had testified at trial, they would have significantly implicated the CFTC and likely caused the trial judge to reverse his earlier ruling – which barred any mention of the CFTC – and allow the jury to hear the incredible and exculpatory evidence of the CFTC’s deception and cover-up. The criminal acts of both COB and the CFTC provide powerful, persuasive support to my claim that I did not engage in any illegal activity. So, it is no mystery why the prosecution was so determined to successfully suppress all testimony and evidence of COB and the CFTC.

COB’s testimony would have supported my innocence claim while casting a poor light on the Government’s case. Having the two main conspirators testify that I was not part of the conspiracy would have provided the jury with reasonable doubt as to the Government’s charges. Protecting a bank that received $51M in TARP funds and also criminally laundered $35M was a significant motive to actively suppress COB’s actions from my trial attorney and take extreme measures to prevent other victims from learning of COB’s involvement…and they almost got away with it.