Brief Synopsis:
At its core, this case is relatively simple: The government hid the truth at Davey’s trial, and after his trial, the truth was discovered. The government has since admitted that they withheld evidence – exculpatory, material evidence that would have gutted their case. The investigator who discovered this bombshell Brady-rule violation told Davey that this would be his golden ticket to overturning his convictions. Unfortunately, it takes more than a pro-se argument to succeed and Davey realizes that his case involves issues too powerful and political to address on his own.

Case Summary:
Davey owned and operated a small CPA firm in Ohio. In 2007, Davey converted his separate investment advisory firm into a hedge fund. Subsequently, other hedge funds contracted with Davey for him to provide accounting, tax, and third-party administrative services.
Unbeknownst to Davey, his hedge fund’s primary investment ended up funding a Ponzi scheme operated by Keith Simmons called, Black Diamond. Keith Simmons lived in a small town in northwestern North Carolina. Other hedge funds, including those with which Davey had contracted, also invested into Black Diamond from December 2007 through December 2009. For two years, Black Diamond’s custodial bank, CommunityOne Bank, received hundreds of wires from Davey and other custodians as they forwarded victims’ funds to Black Diamond per the direction of the hedge funds. CommunityOne Bank simultaneously sent back to Davey multitudes of wires – indicating a return on investment – allegedly from Black Diamond’s profits which Davey then forwarded on to the victims. All the while and unbeknownst to Davey and all the victims, CommunityOne Bank was a willing and knowledgeable participant in Keith Simmons’ fraudulent scheme. It is without question that the Black Diamond Ponzi scheme owed its existence and longevity to the willing enablement and perceived credibility of CommunityOne Bank.

When the FBI finally arrested Keith Simmons in December 2009, the FBI, federal prosecutors in Charlotte, NC, and the Commodities Futures and Trading Commission (CFTC) began a concerted effort to hide the scandalous facts of the government’s previous knowledge of Simmons’ fraud, including 1) the CFTC’s complicity in allowing Simmons to continue his fraudulent operation without interference, 2) the collusion and conspiratorial role of CommunityOne Bank, 3) the Department of Justice’s protection of CommunityOne Bank’s officers and staff from any criminal prosecution or civil suits or victim restitution, and 4) the CFTC’s duplicity and deliberate obliquity in response to Davey’s scrutiny of Simmons’ operation. The government then indicted Davey of being a co-conspirator with Keith Simmons and liable for every dollar that he directly and indirectly sent to Black Diamond and also took forfeiture of four million dollars belonging to his hedge fund in an unrelated investment.

Two years after Davey’s trial and after he had begun serving his 21-year sentence, Davey learned that the government had withheld – in fact, actively suppressed – the critical evidence that would have gutted their case while also proving his innocence. Davey learned that CommunityOne Bank had signed a Deferred Prosecution Agreement (DPA) in 2011 admitting to their conspiratorial role in the Black Diamond Ponzi scheme. In return, CommunityOne Bank, its officers and staff, and subsequent new owners were spared criminal prosecution and protected from civil action by its victims. The DPA was suppressed and not available to the public unless someone knew to look for it and where to look. CommunityOne Bank’s involvement was scrubbed from Keith Simmons’ 2010 trial and all subsequent indictments. Further, not a single Black Diamond victim was notified by the Victim/Witness Notification system that CommunityOne Bank had confessed to being a criminal co-conspirator with Keith Simmons.

It now appears that Jonathan Davey was the only person who could have brought legitimate claims against CommunityOne Bank to recover victims’ losses, but his indictment and conviction protected CommunityOne Bank from such action.
The government admitted to failing to turn over to Davey the exculpatory CommunityOne Bank DPA before, during, or after his trial. It is no wonder that the AUSA who prosecuted Davey appears to be no longer employed by the Department of Justice and left his partnership at McGuire Woods law firm, coincidentally, around the same time that the revelations of the DPA and other scandalous actions surfaced.

Davey believes that a subsequent 2255 or 2241 or other avenues of appeal could provide the basis for claiming actual innocence and move a court to actually rule on the Brady violation of the withheld CommunityOne Bank DPA. The District Court skimmed over the Brady violation and the Appeals Court did not consider it either. Therefore, this “800-pound gorilla” of an egregious Brady violation has yet to be addressed by the District Court or the 4th CA. A very similar case ruled in the 3rd CA, plus the 4th CA precedence provides strong support for Davey’s position and the basis for overturning his convictions. But he cannot succeed on his own.

Davey sought the advice of numerous legal experts and every single person responded that Davey had a valid and winnable case. Yet, at the pro-se level, Davey has been unsuccessful. Therefore, Davey needs a prominent advocate who is not easily intimidated and has a deep respect for justice and the law.

Through representation, Davey hopes to accomplish two goals:

1) Restore the integrity of his name by overturning his convictions.
2) Provide compensation to the victims from those who benefitted at the victims’ expense.