PLEA AGREEMENT as to Craig David Davis — USA v. Davis (Dkt. 38)

Record facts

U.S. District Court for the Eastern District of Virginia · No. 1:24-cr-00040-PTG · Doc. 38 · 2024-08-28 · Docket on CourtListener

Full text

. Case 1:24-cr-00040-PTG Document 38 Filed 08/28/24 Page 1 of 13 PagelD# 169

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA

Alexandria Division AUG ? 8 2024

FILED
IN OPEN COURT

UNITED STATES OF AMERICA CLERK, U.S, DIS
ALEXANDRIA Viger
V. No. 1:24-cr-40
CRAIG DAVID DAVIS, The Hon. Patricia Giles
Defendant.
PLEA AGREEMENT

Jessica D. Aber, United States Attorney for the Eastern District of Virginia, Glenn Leon,
Chief, Fraud Section, Criminal Division, Department of Justice; undersigned counsel for the
United States; the defendant, Craig D. Davis; and the defendant’s counsel have entered into an
agreement pursuant to Rule 11 of the Federal Rules of Criminal Procedure. The terms of this
Plea Agreement are as follows:

1. Offense and Maximum Penalties

The defendant agrees to plead guilty to Count One of the Superseding Indictment,
charging the defendant with wire fraud, in violation of 18 U.S.C. § 1343. The maximum
penalties for this offense are: a maximum term of 20 years of imprisonment, a fine of $250,000
or not more than the greater of twice the gross gain derived by any person from the offense or
twice the gross loss to a person other than the defendant resulting from the offense, full
restitution, forfeiture of assets as outlined below, a special assessment pursuant to 18 U.S.C
§ 3013, and a maximum supervised release term of 3 years. The defendant understands that any
supervised release term is in addition to any prison term the defendant may receive, and that a
violation of a term of supervised release could result in the defendant being returned to prison for

the full term of supervised release.

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2. Factual Basis for the Plea

The defendant will plead guilty because the defendant is in fact guilty of the charged
offense. The defendant admits the facts set forth in the Statement of Facts filed with this Plea
Agreement and agrees that those facts establish guilt of the offense charged beyond a reasonable
doubt. The Statement of Facts, which is hereby incorporated into this Plea Agreement,
constitutes a stipulation of facts for purposes of Section 1B1.2(c) of the Sentencing Guidelines.

3. Assistance and Advice of Counsel

The defendant is satisfied that the defendant’s attorney has rendered effective assistance.
The defendant understands that by entering into this Plea Agreement, defendant surrenders
certain rights as provided in this agreement. The defendant understands that the rights of
criminal defendants include the following:

a. the right to plead not guilty and to persist in that plea;

b. the right to a jury trial;

c. the right to be represented by counsel—and, if necessary, have the court
appoint counsel—at trial and at every other stage of the proceedings; and

d. the right at trial to confront and cross-examine adverse witnesses, to be

protected from compelled self-incrimination, to testify and present
evidence, and to compel the attendance of witnesses.

4. Sentencing Guidelines, Recommendatioris, and Roles

The defendant understands that the Court has jurisdiction and authority to impose any
sentence within the statutory maximum described above, but that the Court will determine the
defendant’s actual sentence in accordance with 18 U.S.C. § 3553(a). The defendant understands
that the Court has not yet determined a sentence and that any estimate of the advisory sentencing
range under the U.S. Sentencing Commission’s Sentencing Guidelines Manual the defendant

may have received from the defendant’s counsel, the United States, or the Probation Office, is a
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>

prediction, not a promise, and is not binding on the United States, the Probation Office, or the
Court. Additionally, pursuant to the Supreme Court’s decision in United States v. Booker, 543
U.S. 220 (2005), the Court, after considering the factors set forth in 18 U.S.C. § 3553(a), may
impose a sentence above or below the advisory sentencing range, subject only to review by
higher courts for reasonableness. The United States makes no promise or representation
concerning what sentence the defendant will receive, and the defendant cannot withdraw a guilty
plea based upon the actual sentence.

Further, in accordance with Federal Rule of Criminal Procedure | 1(c)(1)(B), the United
States and the defendant stipulate and will recommend to the Court that the following provisions

of the Sentencing Guidelines apply:

Guideline(s) Description Offense Level
2B1.1(a)(1) Base offense level 7
Loss amount was greater than $9,500,000 but less
2B1.1(6)0)®) than $25,000,000 +20
2B1.1(b)(2)(A)(i) Offense involved 10 or more victims +2
Defendant derived $1,000,000 or more from one or
2B1.1(b)(2)07) more financial institutions +2

The United States and the defendant further agree that the defendant has assisted the
government in the investigation and prosecution of the defendant’s own misconduct by timely
notifying authorities of the defendant’s intention to enter a plea of guilty, thereby permitting the
government to avoid preparing for trial and permitting the government and the Court to allocate
their resources efficiently. If the defendant qualifies for a two-level decrease in offense level
pursuant to U.S.S.G. § 3E1.1(a) and the offense level prior to the operation of that section is a

level 16 or greater, the government agrees to file, pursuant to U.S.S.G. § 3E1.1(b), a motion prior
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a

to, or at the time of, sentencing for an additional one-level decrease in the defendant’s offense
level.

The United States reserves the right to argue for the applicability of the 2-level
enhancement for use of sophisticated means discussed in Section 2B1.1(b)(10)(C) of the
Sentencing Guidelines. With respect to all other potential enhancements not specifically
discussed in this agreement, the United States reerves the right to present facts to the Court that
may be relevant to their applicability. The United States agrees to take no position with respect
to whether the Court should apply additional enhancements in its calculation of the sentencing
guidelines range, other than the 2-level enhancement for sophisticated means referenced above.

The United States agrees to recommend a sentence of incarceration no greater than the
low end of the adjusted sentencing guidelines range.

The United States and the defendant have not agreed on any further sentencing issues,
whether related to the Sentencing Guidelines or the factors listed in 18 U.S.C. § 3553(a), other
than those set forth above or elsewhere in this Plea Agreement.

5. Waiver of Appeal, FOIA, and Privacy Act Rights

The defendant also understands that 18 U.S.C. § 3742 affords a defendant the right to

‘appeal the sentence imposed. Nonetheless, the defendant knowingly waives the right to appeal
the conviction and any sentence within the statutory maximum described above (or the manner in
which that sentence was determined) on the grounds oct forth in 18 U.S.C. § 3742 or on any
ground whatsoever other than an ineffective assistance of counsel claim that is cognizable on
direct appeal, in exchange for the concessions made by the United States in this Plea Agreement.
This agreement does not affect the rights or obligations of the United States as set forth in 18

U.S.C. § 3742(b). The defendant also hereby waives all rights, whether asserted directly or by a
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o

representative, to request or receive from any department or agency of the United States any
records pertaining to the investigation or prosecution of this case, including without limitation
any records that may be sought under the Freedom of Information Act, 5 U.S.C. § 552, or the
Privacy Act, 5 U.S.C. § 552a.

6. Immunity from Further Prosecution in This District

The United States will not further criminally prosecute the defendant in the Eastern
District of Virginia for the specific conduct described in the Superseding Indictment or
Statement of Facts. This Plea Agreement and Statement of Facts does not confer on the
defendant any immunity from prosecution by any state government in the United States.

7. Dismissal of Other Counts

As a condition of the execution of this agreement and the Court’s acceptance of the
defendant’s plea of guilty, the United States will move to dismiss the remaining counts pending
against this defendant at the conclusion of this defendant’s sentencing hearing.

8. Payment of Monetary Penalties

The defendant understands and agrees that, pursuant to 18 U.S.C. § 3613 and 18 U.S.C.
§ 3572, all monetary penalties imposed by the Court, including restitution, will be due
immediately and subject to immediate enforcement by the United States as provided for in
Section 3613. If the Court imposes a schedule of payments, the defendant understands that the
schedule of payments is merely a minimum schedule of payments and not the only method, nor a
limitation on the methods, available to the United States to enforce the judgment. Until all
monetary penalties are paid in full, the defendant will be referred to the Treasury Offset Program
so that any federal payment or transfer of returned property to the defendant will be offset and

applied to pay the defendant’s unpaid monetary penalties. If the defendant is incarcerated, the
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defendant agrees to participate voluntarily in the Bureau of Prisons’ Inmate Financial
Responsibility Program, regardless of whether the Court specifically directs participation or
imposes a schedule of payments. Defendant agrees to make good-faith efforts toward payment
of all monetary penalties imposed by the Court.

9. Special Assessment

Before sentencing in this case, the defendant agrees to pay a mandatory special
assessment of $100 per felony count of conviction, pursuant to 18 U.S.C. § 3013(a)(2)(A).

10. Restitution

The defendant agrees that restitution is mandatory pursuant to 18 U.S.C. § 3663A(c)(1),
and the defendant agrees to the entry of a Restitution Order for at least $8,995,191.55. Without
limiting the amount of restitution that the Court must impose, the parties agree that, at a

minimum, the following victims have suffered the losses identified below and are entitled to

restitution:
Victim Restitution Amount
Bank-1 $341,300.00
Bank-2 $354,000.00
Bank-3 ‘ $8,299,891 .55

Additionally, the defendant agrees that, pursuant to 18 U.S.C. §§ 3663 and 3663A(a)(3)
and 3563(b)(2) and 3583(d), the Court may order restitution of the full amount of the actual, total
loss caused by the offense conduct set forth in the relevant conduct portion of the statement of
facts.

The Defendant further understands that forfeiture and restitution are separate and distinct

financial obligations that must be imposed upon a criminal defendant. The defendant further
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cy

understands that restitution will be enforced pursuant to 18 U.S.C. § 3572, 18 U.S.C. § 3613, and
18 U.S.C. § 3664(m).

11. Forfeiture Agreement

The defendant understands that the forfeiture of assets is part of the sentence that must be
imposed in this case. The defendant agrees to forfeit all interests in any fraud-related asset that
the defendant owns or over which the defendant exercises control, directly or indirectly. This
includes any property that is traceable to, derived from, fungible with, or a substitute for the
following: property that constitutes the proceeds of the offense.

The defendant understands that if the assets subject to forfeiture are not available to the
United States to be forfeited, the Court must enter a forfeiture money judgment in the amount of
the unavailable assets. United States v. Blackman, 746 F.3d 137 (4th Cir. 2014). The defendant
acknowledges that as a result of defendant’s acts or omissions, the actual proceeds the defendant
obtained as a result of the offense ($8,995,191.55) are not available and the defendant stipulates
that one or more of the factors listed at 21 U.S.C. § 853(p)(1) are present in this case.

The defendant further agrees to waive all interest in the asset(s) in any administrative or
judicial forfeiture proceeding, whether criminal or civil, state or federal. The defendant agrees to
consent to the entry of orders of forfeiture for such property and waives the requirements of
Federal Rules of Criminal Procedure 32.2 and 43(a) regarding notice of the forfeiture in the
charging instrument, announcement of the forfeiture at sentencing, and incorporation of the
forfeiture in the judgment. Defendant admits and agrees that the conduct described in the
charging instrument and Statement of Facts provides a sufficient factual and statutory basis for

the forfeiture of the property sought by the government.
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12. Waiver of Further Review of Forfeiture

The defendant further agrees to waive all constitutional and statutory challenges to
forfeiture in any manner (including direct appeal, habeas corpus, or any other means) to any
forfeiture carried out in accordance with this Plea Agreement on any grounds, including that the
forfeiture constitutes an excessive fine or punishment. The defendant also waives any failure by
the Court to advise the defendant of any applicable forfeiture at the time the guilty plea is
accepted as required by Rule 11(b)(1)(J). The defendant agrees to take all steps as requested by
the United States to pass clear title to forfeitable assets to the United States, and to testify
truthfully in any judicial forfeiture proceeding. The defendant understands and agrees that all
property covered by this agreement is subject to forfeiture as proceeds of illegal conduct and
substitute assets for property otherwise subject to forfeiture.

13. The Defendant’s Obligations Regarding Assets and Financial Investigation

The defendant agrees to fully participate in the United States’ pre- and post-judgment
financial investigation. Such participation includes the identification of assets in which the
defendant has any legal or equitable interest to determine what assets may be available for
payment to restitution, forfeiture, and/or any fine imposed in this case. The defendant agrees that
the defendant’s financial information is subject to investigation and disclosure pre-judgment to
the same extent as financial information will be subject to discovery after judgment is imposed.
The defendant understands that 31 U.S.C. § 3711(h)(1) permits the United States to obtain the
defendant’s credit report after sentencing and expressly authorizes the United States to obtain the
defendant’s credit report prior to sentencing in this case. The defendant understands that the
United States has sole discretion over whether it will obtain defendant’s credit report pursuant to

this Plea Agreement. If the United States determines that it will obtain defendant’s credit report
"Case 1:24-cr-00040-PTG Document 38 _ Filed 08/28/24 Page 9 of 13 PagelD# 177

prior to sentencing pursuant to this Plea Agreement, the defendant authorizes the United States,
and the United States agrees, to provide a copy to defense counsel upon request. The defendant
understands that failure to participate in the financial investigation as described in this paragraph
may constitute the defendant’s failure to accept responsibility under U.S.S.G § 3E1.1.

Within 14 days of a request by the United States, or other deadline agreed upon by the
parties, the defendant agrees to provide all information about all of the defendant’s assets and
financial interests to the United States and the Probation Office and, if requested, submit to a
debtor’s examination, complete a financial disclosure statement under penalty of perjury, and/or
undergo any polygraph examination the United States may choose to administer concerning such
assets and financial interests. The defendant also agrees to provide or consent to the release of
the defendant’s tax returns for the previous five years. The defendant understands that assets and
financial interests subject to disclosure include assets owned or held directly or indirectly,
individually or jointly, in which the defendant has any legal interests, regardless of title,
including any interest held or owned under any other name, trusts, and/or business entities
presently and since date of the first offense giving rise to this Plea Agreement, or giving rise to
the charges presently pending against the defendant, whichever is earlier.

The defendant shall identify all assets valued at more than $5,000 that have been
transferred to third parties since the date of the first offense giving rise to this Plea Agreement,
including the location of the assets and the identities of third parties to whom they were
transferred. The defendant agrees not to transfer any assets valued at more than $5,000 without
approval of the Asset Recovery Unit of the U.S. Attorney’s Office until the fine, forfeiture, and
restitution ordered by the Court at sentencing are paid in full or otherwise terminated by

operation of law. The defendant agrees to take all steps requested by the United States to obtain
‘Case 1:24-cr-00040-PTG Document 38 _ Filed 08/28/24 Page 10 of 13 PagelD# 178

from any other parties by any lawful means any records of assets contemplated by this paragraph
in which the defendant has or had an interest. Until the fine, forfeiture, and restitution ordered
by the Court are paid in full or otherwise terminated by operation of law, the defendant agrees to
notify the Asset Recovery Unit of the U.S. Attorney’s Office of a change in address within 30
days of such change.

The United States will not use any truthful and complete information provided by the
defendant pursuant to this paragraph for additional criminal offenses against the defendant in the
Eastern District of Virginia, except in any prosecution for a crime of violence or conspiracy to
commit, or aiding and abetting, a crime of violence (as defined in 18 U.S.C. § 16). Pursuant to
U.S.S.G. § 1B1.8, no truthful information that the defendant provides pursuant to defendant’s
obligations under this paragraph will be used in determining the applicable guideline range,
except as provided in Section 1B1.8(b). Nothing in this agreement, however, restricts the
Court’s or Probation Officer’s access to information and records in the possession of the United
States. Furthermore, nothing in this agreement prevents the United States in any way from
prosecuting the defendant should the defendant knowingly provide false, untruthful, or
perjurious information or testimony, or from using information provided by the defendant in
furtherance of any forfeiture action or restitution enforcement action, whether criminal or civil,
administrative or judicial.

14. Payment of Taxes and Filing of Tax Returns

The defendant consents to any motion by the United States under Federal Rule of ©
Criminal Procedure 6(e)(3)(E) to disclose grand jury material to the Internal Revenue Service for
use in computing and collecting the defendant’s taxes, interest, and penalties, and to the civil and

forfeiture sections of the U.S. Attorney’s Office for use in identifying assets and collecting fines

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‘Case 1:24-cr-00040-PTG Document 38 _ Filed 08/28/24 Page 11 of 13 PagelD# 179

and restitution. The defendant further agrees to make all books, records, and documents available
to the Internal Revenue Service for use in computing defendant’s taxes, interest, and penalties for
the year(s) 2019 through 2024.

15. _ Breach of the Plea Agreement and Remedies

This Plea Agreement is effective when signed by the defendant, the defendant’s attorney,
and an attorney for the United States. The defendant agrees to entry of this Plea Agreement at
the date and time scheduled with the Court by the United States (in consultation with the
defendant’s attorney). If the defendant withdraws from this agreement, or commits or attempts
to commit any additional federal, state, or local crimes, or intentionally gives materially false,
incomplete, or misleading testimony or information, or otherwise violates any provision of this
agreement, then:

a. The United States will be released from its obligations under this
agreement. The defendant, however, may not withdraw the guilty plea
entered pursuant to this agreement.

b. The defendant will be subject to prosecution for any federal criminal
violation, including, but not limited to, perjury and obstruction of justice,
that is not time-barred by the applicable statute of limitations on the date
this agreement is signed. Notwithstanding the subsequent expiration of
the statute of limitations, in any such prosecution, the defendant agrees to
waive any statute-of-limitations defense.

c, Any prosecution, including the prosecution that is the subject of this
agreement, may be premised upon any information provided, or
statements made, by the defendant, and all such information, statements,
and leads derived therefrom may be used against the defendant. The
defendant waives any right to claim that statements made before or after
the date of this agreement, including the Statement of Facts accompanying
this agreement or adopted by the defendant and any other statements made
pursuant to this or any other agreement with the United States, should be
excluded or suppressed under Fed. R. Evid. 410, Fed. R. Crim. P. 11(f),
the Sentencing Guidelines, or any other provision of the Constitution or
federal law.

HH
‘Case 1:24-cr-00040-PTG Document 38 Filed 08/28/24 Page 12 of 13 PagelD# 180

Any alleged breach of this agreement by either party shall be determined by the Court in
an appropriate proceeding at which the defendant’s disclosures and documentary evidence shall
be admissible and at which the moving party shall be required to establish a breach of this Plea
Agreement by a preponderance of the evidence.

16. Nature of the Agreement and Modifications

This written agreement constitutes the complete plea agreement between the United
States, the defendant, and the defendant’s counsel. The defendant and the defendant’s attorney
acknowledge that no threats, promises, or representations have been made, nor agreements
reached, other than those set forth in writing in this Plea Agreement or any associated documents
filed with the Court, to cause the defendant to plead guilty. Any modification of this Plea
Agreement shall be valid only as set forth in writing in a supplemental or revised plea agreement
signed by all parties.

Jessica D. Aber
United States Attorney

Glenn S. Leon
Chief. "4 ye

——

By:

A A. fu
Trial Attorney, Fraud Section

th. Blee—

Drew Bradylyons
Assistant U.S. Attorney

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"Case 1:24-cr-00040-PTG Document 38 Filed 08/28/24 Page 13 of 13 PagelD# 181

Defendant’s Signature: I hereby agree that I have consulted with my attorney and fully
understand all rights with respect to the pending criminal Superseding Superseding Indictment.
Further, I fully understand all rights with respect to 18 U.S.C. § 3553 and the provisions of the
Sentencing Guidelines Manual that may apply in my case. I have read this Plea Agreement and
carefully reviewed every part of it with my attorney. I understand this agreement and voluntarily
agree to it.

Date: 3/28 /2 4 Tt. =

Craig D. Davis

Defense Counsel’s Signature: 1 am counsel for the defendant in this case. ] have fully
explained to the defendant the defendant’s rights with respect to the pending Superseding
Superseding Indictment. Further, I have reviewed 18 U.S.C. § 3553 and the Sentencing
Guidelines Manual, and I have fully explained to the defendant the provisions that may apply in
this case. I have carefully reviewed every part of this Plea Agreement with the defendant. To
my knowledge, the defendant’s decision to enter into this agreement is an informed and
voluntary one.

pate: 8/29 | Ay —

orathan Simms, Esq
Counsel for the Defendant

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