Feb.14, 2010
JEFFERSON An Ashe County businessman arrested in connection with a $35 million Ponzi scheme was spinning elaborate and false tales to defraud investors, even as the FBI closed in on him, according to the criminal complaint and e-mails from an investment manager.
Keith Franklin Simmons, the owner of Black Diamond Capital Solutions, was arrested Dec. 17.
He is in jail on allegations that he defrauded at least 240 investors, and is charged with conspiracy to commit money laundering, wire fraud and securities fraud.
He has pleaded not guilty and requested a jury trial.
Simmons told people that he was investing their money in the foreign-currency exchange system, but he didn't invest any of it there, according to the FBI. The FBI says that Simmons was operating a Ponzi scheme, which works by paying investors with their own money or money from other investors rather than from investment profits.
Court documents show that Simmons deposited the money in banks.
Authorities say that he spent the money on cars, real estate and lavish trips, and also paid out $19.9 million in Ponzi distributions to investors in a scheme that went on from at least April 2007 until Sept. 16, 2009.
Investors started losing their ability to make withdrawals from Black Diamond around March 2009, and payments finally stopped in July, when Simmons was apparently out of money.
But when some of the investors wanted explanations, Simmons told detailed stories about how the money was being temporarily tied up by the government, and that he was working to get it.
Simmons communicated through hedge-fund managers, including one who sent e-mails to some of the investors.
The hedge-fund manager, who lives out of state and asked not to be identified, said he is also a victim. The manager said he was defrauded and lost money. He also said he had no knowledge that Simmons was operating a Ponzi scheme. He said that the e-mails were intended to pass along information to help investors.
"This is what was just relayed to me by Keith," he wrote in an e-mail to investors dated Oct. 30, 2009. "The attorney's had a call with The Treasury Department this afternoon and The Treasury Dept was somewhat elusive with providing them information on the explicit details of the wire hold because of a 'documentation' issue." Simmons had complained that the "Fed" and the "Treasury Dept." were holding up the transfer of money because of the scrutiny of certain investors, according to the criminal complaint.
Simmons told his hedge-fund manager that one of the investors was a possible fugitive, and the Treasury Department would handle the fugitive's funds but allow the other funds to be released.
Simmons also said he had spoken to "Klaus" that day, and that Klaus had kept all the documents at a bank and was going to get them together and fax them.
Klaus Bruner was a name of someone who didn't exist -- a German liquidity provider who investors were told was going to pay $120 million to replace Black Diamond's money in the foreign-currency exchange, according to the criminal complaint.
On Dec. 2, the hedge-fund manager wrote to investors: "I've just gotten off the phone with Keith and he was very encouraging today. He said that their call this morning was with Klaus, Klaus' attorney, Keith, Keith's attorney.... To quote Keith he said, 'it was an extremely positive call this morning', and you could tell in his voice that he was sincere about that statement." The manager wrote that the involvement of Klaus' attorney could be a turning point.
"It really seems to be a HUGE plus for us as well and maybe this is what we've all been waiting for to finally get this cash out done," he wrote. "Time will tell and we'll just have to wait and see but I felt good myself after hearing Keith this morning because he had a very upbeat tone in his voice and that can't be anything but good for us." On Dec. 5, he wrote, "Some very encouraging news yesterday when Keith informed us that the attorney for Klaus that was hired by the German government told him that it looks as though the Treasury Department is pretty much done with Black Diamond, for all intents and purposes.... In addition, Keith was also told that Treasury did say that Black Diamond was not the focus of the federal 'witch hunt' that we've been caught up in the middle of these past few weeks." Simmons told him that about $43 million or so could soon be released, including money from a "paymaster" in Florida.
"It sure would be a WONDERFUL Christmas present if we received our money by Christmas," the manager wrote investors.
On Dec. 8, the manager was on a conference call with Simmons and someone who claimed to be from the Treasury Department and said that everything was going well, according to the manager's e-mail from that day.
"Guys, it sounds as though things are starting to move more rapidly now and you can join me in a little prayer that we hear some great news over the next couple of days," he wrote. "Take care and rest assured, I'll be in touch the minute I know anything else." The next day, Dec. 9, the FBI executed a search warrant on Simmons' offices and seized more than $2.5 million in real estate.
The final e-mail, dated Dec. 11, noted that there had been "limited communication as of late due to the fact that we know Keith has had more interaction with the Feds in the past few days." Even then, though, he said that Simmons was still working on getting principal funds available to be paid out. He said that Simmons knew little about another meeting with Klaus and Klaus' attorney.
"I do know that my communication with Keith has been cut way down but he is still communicating as much as possible with whatever he has," the manager wrote. "It looks as though any 'cash out' that is taking place will definitely be some time after the first of the year.... I wish I had more to report but we're all in the same boat and just want our money." The FBI arrested Simmons six days later as he got out of his vehicle in a department-store parking lot in Jefferson.
An FBI spokeswoman did not return a phone message this week.
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