Brief Case Summary:
In 2011, Jonathan was civilly sued by the Commodities Futures Trading Commission (CFTC) and accused of being part of a Ponzi scheme conspiracy.
In 2012, he was criminally indicted.
There were a dozen “alleged” co-conspirators and all accepted plea deals except for the head Ponzi schemer, Keith Simmons, who received a 40-year sentence.
In 2013, Jonathan proceeded to trial having to rely on a public defender as his sole defense counsel since the CFTC had frozen his assets in 2011.
In 2013, Keith Simmons voluntarily testified at Jonathan’s trial stating that Jonathan Davey was NOT part of his conspiracy.
Maintaining his claim of innocence, Jonathan, was the lone co-conspirator who proceeded to trial. However, during discovery, Jonathan learned why all of the other co-conspirators had accepted plea deals rather than proceeding to trial. They all did engage in fraud.
In January 2015, Jonathan, truly innocent of all crimes was given a 21-year sentence for:
1) Conspiracy to commit securities fraud,
2) conspiracy to commit wire fraud,
3) conspiracy to commit money laundering, and
4) tax evasion.
Later in 2015, an unknown law firm working on an unrelated civil case between a bank and many of Jonathan’s former clients discovered a massive government scheme that would have destroyed the prosecution’s theory of Jonathan’s criminal case while also supporting his claim of innocence. The law firm’s investigator (without remuneration) forwarded this information to him. He was also instrumental in helping Jonathan write a Habeas Corpus appeal (i.e., 2255) and several supplements. However, this person seeks to remain anonymous.
This incredible discovery by the law firm revealed that, probably for the first time in history, a bank was a co-conspirator in a Ponzi scheme; enabling and participating in the fraud. Even more incredible was the government’s refusal to hold any of the bank officials accountable for their participation in the fraud or require them to participate in the restitution requirement demanded of every other co-conspirator. And most incredible was that the government hid all this from Jonathan and his defense counsel before, during, and after his trial and then claimed that it was neither material nor exculpatory. There is no clearer example of a Brady Rule violation!
The Brady violation related to a Deferred Prosecution Agreement (DPA) that was crafted and signed by his two prosecutors, Kurt Meyers and Mark Odulio in 2011. At that same time, the DPA was approved and signed by his federal district trial judge, Robert J. Conrad. In signing the DPA the bank, Community One Bank (COB) expressly agreed to accept responsibility for the factual allegations of the criminal information file. COB also agreed to neither contest nor contradict the facts outlined in the criminal information.
After signing, the prosecution essentially “buried” the DPA and no one learned about it until 2015. The government admitted in their Reply Brief to Jonathan’s 2255 petition that they “FAILED” to turn over the favorable and exculpatory DPA during discovery in his 2013 trial. This admission alone should have triggered a new trial considering the materiality of the Brady violation.
During 2018-2021, Jonathan also learned that the CFTC had received a complete confession from Keith Simmons about his fraudulent operation but allowed him to continue to operate for close to another year before the FBI finally arrested him. Incredibly the CFTC did not close Simmons’s Ponzi scheme bank account, or alert his clients, including my brother, Jonathan. In fact, the CFTC specifically refused to answer Jonathan’s questions and inquiries about Simmons which prevented him from learning of Simmons’s Ponzi scheme sooner. What makes this so egregious is that the CFTC knew all of this in 2011 and yet still civilly sued Jonathan as a participant in the Ponzi scheme, but did not include COB in the civil suit. The CFTC colluded with the prosecutors in burying the DPA and protecting the bank from any potential litigation. Hopefully, this information will be important in subsequent civil litigation should Jonathan prevail in overturning his criminal convictions.
What is most shocking is the length that the prosecutors went to, to hide the existence of the DPA from Jonathan, his defense counsel, and all the victims of the Ponzi scheme, even from those victims who personally met with the prosecutors and testified for the prosecution at trial. More incredible details are enumerated in Jonathan’s application for a Certificate of Appealability (COA). Importantly, no bank officials were ever prosecuted for their admitted participation in laundering 35 million dollars.
All of Jonathan’s discoveries were submitted as supplemental filings after his original 2255 was filed in September 2017. Although the district court did not rule on his 2255 until October 2021, the court ruled all the supplements filed during 2018-2021 as moot.
This BRADY rule violation deprived Jonathan of due process (i.e., a fair trial). Had Jonathan known of the DPA, he would have called COB officials to testify at his trial. Indeed, their testimony would have been the cornerstone of Jonathan’s defense. Their testimony, consistent with what they admitted in their DPA, would have destroyed the government’s case by showing the jury that:
Jonathan Davey was not part of the conspiracy.
Jonathan Davey did not commit any of the underlying crimes in this conspiracy.
Jonathan Davey did not profit from the conspiracy.
In fact, it explains how Keith Simmons and the COB worked together to deceive Jonathan into believing that this was a legitimate organization and not a Ponzi scheme.
None of Jonathan’s actions were fraudulent and also prove that he did not have a tax deficiency.
Instead, it supports Jonathan’s “FACTUAL” innocence on all 4 counts!