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

Summary

A Factual Proffer, Document 33, entered 01/13/2023 on the FLSD docket in Case 0:22-cr-60186-WPD, CASE NO. 22-CR-60186-WPD, United States of America v. Damian Davis, in the United States District Court, Southern District of Florida. The United States and Davis agree that had the case gone to trial the government would have proven that in June and July of 2020 he applied for three Paycheck Protection Program loans for three companies, receiving a total of $586,545. It states that the Fifth Marketing application of $274,365 listed 26 employees when he knew the company never had that many, that fraudulent tax forms were filed, and that he spent funds on a BMW rather than payroll. The parties agree the facts prove guilt on Counts 3 and 6.

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“Factual Proffer — United States v. Damian Davis (S.D. Fla., Dkt. 33).” Original at ecf.flsd.uscourts.gov. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/court-filing-no-0-22-cr-60186-dkt-33-s-d-fla-3ca4e76256/, SHA-256 5a1d00b6cc55678e4eca95100cdf35ca5ce8a0b5c27bc222a25df558be961fd9.

Full text

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

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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