Factual Proffer — United States v. Davis (Dkt. 33, S.D. Fla.)

Summary

A factual proffer in United States of America v. Damian Davis, Case No. 22-CR-60186-WPD, in the U.S. District Court for the Southern District of Florida, filed January 13, 2023. The United States and Davis agree that the government would have proven that in June and July of 2020 Davis applied for Paycheck Protection Program loans in the names of his companies Wolf of Flagler, LLC ($128,400), Crates Tavern, LLC ($183,780) and Fifth Marketing Group, LLC ($274,365), receiving a total of $586,545. It states that the Fifth Marketing application, prepared by a third-party tax preparer at his direction, listed an average monthly payroll of $109,746 and 26 employees, which the proffer says Fifth Marketing never had. The facts are stated as sufficient to prove his guilt on Counts 3 and 6 of the Indictment.

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Case 0:22-cr-60186-WPD Document 33 Entered on FLSD Docket 01/13/2023 Page 1 of 3



                             UNITED STATES DISTRICT COURT
                             SOUTHERN DISTRICT OF FLORIDA

                                    CASE NO. 22-CR-60186-WPD

  UNITED STATES OF AMERICA

  v.

  DAMIAN DAVIS,

                        Defendant.
  - - - - - - - - - - - - ' - - - - -I
                                       FACTUAL PROFFER

         The United States of America and Damian Davis (the "Defendant") agree that, had this

  case gone to trial, the United States would have proven the following facts, among others, beyond

  a reasonable doubt:

         In June and July of 2020, the Defendant applied for three Paycheck Protection Program

  ("PPP") loans in the name of his three companies, Wolf of Flagler, LLC, in the amount of

  $128,400, Crates Tavern, LLC $183,780, and Fifth Marketing Group, LLC $274,365, receiving a

  total of $586,545 in PPP funds.

         Specifically, in July of 2020, a PPP loan application was submitted to Bank 2 on behalf of

  Fifth Marketing. The Defendant is the sole member of Fifth Marketing. The PPP loan application

  was prepared and submitted by a third-party tax preparer at the Defendant's direction. The Fifth

  Marketing loan application listed a loan amount of $274,365 and an average monthly payroll of

  $109,746. The application stated that Fifth Marketing had a total of26 employees. The Defendant

  knew Fifth Marketing never had 26 employees. In fact, in an Economic Injury Disaster Loan

  ("EDIL") prepared and submitted by the Defendant, approximately two months before submission

  of the PPP loan, he stated that Fifth Marketing had one employee as of January 31, 2020.

Case 0:22-cr-60186-WPD Document 33 Entered on FLSD Docket 01/13/2023 Page 2 of 3



  Additionally, the Defendant's tax preparer prepared and submitted fraudulent IRS Forms 940 and

  941 with the loan application. The Defendant signed the promissory note on behalf of Fifth

  Marketing.

         On behalf of Fifth Marketing, the Defendant's tax preparer falsely certified that: (1) Fifth

  Marketing was in operation on February 15, 2020, and had employees for whom the Fifth

  Marketing paid salaries and payroll taxes or paid independent contractors, as reported on Form(s)

  1099-MISC; (2) current economic uncertainty made the loan request necessary to support the

  ongoing operations of Fifth Marketing; (3) the funds would be used to retain workers and maintain

  payroll or make mortgage interest payments, lease payments, and utility payments; and, (4) Fifth

  Marketing has not received another PPP loan. Specifically, Fifth Marketing had never filed taxes,

  including Forms 940 and 941. Furthermore, the Florida Department of Revenue had no records for

  Fifth Marketing, and the Fifth Marketing bank account ending in 5956 (the "Fifth Marketing

  Account") did not reflect any payroll payments. Nor did Fifth Marketing make any mortgage

  interest payments, rent payments, or utility payments.

         Bank 2 approved the Fifth Marketing loan application and deposited, via interstate wire,

  $274,365 into the Fifth Marketing Account on July 29, 2020. The Fifth Marketing Account was

  opened July 11, 2020; the Defendant is the only signatory on the account. After receiving the PPP

  loan proceeds, the Defendant did not make any payroll payments. He misused the funds. For

  example, on August 28, 2020, the Defendant wired $31,000 to R.E.S. for the alleged purchase of

  "equipment." However, the Defendant did not buy equipment; he purchased a 2001 Blue BMW

  M3. The BMW was titled in the Defendant's name.

         Lastly, during a recorded call, the Defendant admitted to an undercover IRS agent that he

  provided his tax preparer with the information necessary to prepare the loan application, including

Case 0:22-cr-60186-WPD Document 33 Entered on FLSD Docket 01/13/2023 Page 3 of 3



  the number of employees, and that he reviewed the loan application before it was submitted. The

  Defendant further claimed that he gave his tax preparer permission to sign the loan application on

  his behalf.

          The parties agree that these facts, which do not include all the facts known to the

  Government and the Defendant, are sufficient to prove beyond a reasonable doubt his guilt with

  respect to Counts 3 and 6 of the Indictment.



                                        JUAN ANTONIO GONZALEZ
                                        UNITED STATES ATTORNEY


  Date:   11-f>l'l.:2'          By:   Y      e~
                                      BERTILAFERNAND
                                      ASSISTAN        ITED STATES ATTORNEY


                                By: _ _---==--------=""'--------
                                    CARLOS GONZALEZ
                                    COUNSEL FOR DEFENDANT


  Date:#-                       By·r-1
                                   -~~VIS
                                                 Ji<l
                                    DEFENDANT

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