Response in Opposition by USA as to Casey David Crowther — USA v. Crowther (Dkt. 30, M.D. Fla. No. 2:20-mj-01094, docketed in No. 2:20-cr-00114)

Record facts

U.S. District Court for the Middle District of Florida · No. 2:20-cr-00114 · Doc. 30 · 2020-10-19 · Docket on CourtListener

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UNITED STATES DISTRICT COURT 
MIDDLE DISTRICT OF FLORIDA 
FORT MYERS DIVISION 
 
 
UNITED STATES OF AMERICA 
 
v. 
CASE NO. 2:20-cr-114-FtM-66MRM 
 
CASEY DAVID CROWTHER 
 
 
UNITED STATES’ RESPONSE IN OPPOSITION TO 
  DEFENDANT’S MOTION TO DISMISS INDICTMENT 
 
 
The defendant seeks to dismiss the pending four count indictment 
 (Doc. 15) based upon the contention that the indictment is legally deficient 
and fails to state an offense pursuant to Fed. R. Crim. P. 12(b)(3)(B)(v). Doc. 
25. The defendant seeks to have this Court consider the facts and evidence of 
the case which far exceeds the limited scope of a motion filed pursuant to Rule 
12(b)(3)(B)(v). The indictment is legally sufficient as it charges the language of 
the applicable statutes and sufficiently informs the defendant of the charges 
against him. Therefore, the motion to dismiss should be denied.  
SUMMARY OF THE INDICTMENT 
 
The defendant is charged in a four count speaking indictment with 
Bank Fraud (18 U.S.C. § 1344) (Count One), False Statement to Lending 
Institution (18 U.S.C. § 1014) (Count Two), and Illegal Monetary 
Transactions (18 U.S.C. § 1957) (Counts Three and Four). Doc. 15. The 
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indictment contains an introduction section that is applicable to all four 
charged counts. Id. at 1-4. Specifically, the introduction section identifies and 
defines the defendant, defendant’s business, Small Business Association  
(“SBA”), Coronavirus Aid, Relief, Economic Security (“CARES”) Act, the 
Payroll Protection Program (“PPP”), and the Lender1. Id. The Lender is 
specifically defined as “a financial institution federally insured by the Federal 
Deposit Insurance Corporation (‘FDIC’) headquartered and with branches in 
Lee County, Florida…” Id. at 4.   
A. Count One  
 
Count One of the indictment, charging bank fraud, consists of three 
additional sections labeled “The Scheme to Defraud,” “Manner and Means of 
the Scheme,” and “Execution of the Scheme” which outline the charge. Id. 
Further, the Scheme to Defraud section tracks the language of the bank fraud 
statute under 18 U.S.C. § 1344 and states “the defendant did knowingly and 
intentionally execute, and attempt to execute, a scheme and artifice to defraud 
a financial institution, and to obtain monies, funds, credits, assets, and other 
property owned by, and under the custody and control of, a financial 
                                                     
1 The defendant, in his motion to dismiss, refers to the Lender named within 
the indictment as “the Bank.” Doc. 25 at 4. The government, for the sake of 
remaining consistent with the charged language of the indictment, will refer to 
the Lender as “the Lender.”  
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institution, by means of materially false and fraudulent pretenses, 
representations, and promises.” Id. at 4.   
The Manner and Means of the Scheme section further details and 
outlines how the defendant perpetrated the scheme and artifice to defraud. 
Moreover, this section describes the false, fraudulent, and misleading 
representations made to the Lender which caused the Lender to deposit funds 
into accounts under the defendant’s control which the defendant used for his 
own personal enrichment. Id. at 4-6. The Execution of the Scheme section 
further states the defendant executed the scheme and artifice to defraud, “by 
submitting a false PPP loan application and revised PPP loan application on 
behalf of his company, Target Roofing, in order to receive a loan from the 
Lender, a bank insured by the FDIC, which loan was guaranteed by the 
SBA…” Id.at 6-7.  
B. Count Two  
Count Two of the indictment, charging false statement to lending 
institution, tracks the language of the applicable statute under 18 U.S.C. § 
1014. Id. at 7.  More specifically, Count Two summarizes the false statement 
made by the defendant in a PPP loan application and revised PPP loan 
application submitted to the Lender, an institution insured by the FDIC.  
 
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C. Counts Three and Four 
Counts Three and Four of the indictment, charging illegal monetary 
transactions, track the language of the applicable statute under 18 U.S.C. § 
157. Id. at 8-9. Further, these counts allege the defendant knowingly engaged 
in monetary transactions in criminally derived property of a value greater than 
$10,000 and is derived from specified unlawful activity. Id. Counts Three and 
Four describe the unlawful activity as bank fraud and further describes each 
monetary transaction in criminally derived property of a value greater than 
$10,000. Id. These monetary transactions include a $100,000 wire made to 
S.A. in connection with a $722,474.00 promissory note, and a $689,417.00 
wire to Sara Bay Marina for the purchase of a 40’ Invincible Catamaran boat. 
Id.  
ARGUMENT 
In determining the legal sufficiency of an indictment, “a district court is 
limited to reviewing the face of the indictment and, more specifically, the 
language used to charge the crime.” United States v. Sharpe, 438 F.3d 1257, 
1263 (11th Cir. 2006) (citing United States v. Critzer, 951 F.2d 306, 307 (11th 
Cir. 1992). Further, the Court is to read the indictment in the light most 
favorable to the United States and assume the factual allegations to be true. 
Sharpe, 438 F.3d at 1258-59. To be valid, an indictment “must contain the 
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elements of the offense intended to be charged, and sufficiently apprise the 
defendant of what he must be prepared to meet.” Id. at 1263 (quoting United 
States v. Bobo, 344 F.3d 1076, 1083 (11th Cir. 2003). Moreover, an indictment 
“is sufficient if it charges in the language of the statute.” Critzer, 951 F.2d at 
307.  
With criminal cases, there is no summary judgment mechanism that 
would enable the Court to engage in the pre-trial determination of the 
sufficiency of the government’s evidence. United States v. Salman, 378 F.3d 
1266, 1268 (11th Cir. 2004). Here, the defendant has submitted a motion to 
dismiss that is akin to a civil motion for summary judgment. The defendant’s 
motion, in essence, asks this Court to make a pre-trial determination of the 
facts and evidence of the case based on what the defendant believes the facts 
and evidence to be. Furthermore, the government is not required to submit a 
proffer of what it will prove at trial in its response to the defendant’s motion to 
dismiss. See Critzer, 951 F.3d at 307-8.   The government’s response will 
therefore be limited to the legal sufficiency of the four corners of the 
indictment.  
A. The Defendant’s use of PPP loan proceeds invokes a pre-trial 
determination of the facts and evidence of the case. 
 
The defendant has asked this court to dismiss Counts One through Four 
of the indictment based upon the premise that the defendant lawfully used 
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PPP loan proceeds. Doc. 25 at 7-12. In doing so, the defendant asks the Court 
to make a factual and evidentiary determination as to whether the defendant 
lawfully used PPP funds. The government would certainly disagree with the 
defendant’s characterization of his use of PPP loan proceeds.  
The Manner and Means section of Count One of the Indictment clearly 
describes the false, fraudulent, and misleading representations that were made 
to the Lender and SBA which caused the issuance of $2,098,700.00 in PPP 
funds and are the basis for the charge. Doc. 15 at 5. Specifically, the 
indictment alleges that the defendant (1) falsely represented the PPP loans 
proceeds would only be used for business related purpose as specified in the 
loan application, and (2) falsely certified the PPP funds would be used to 
retain workers and maintain payroll or make mortgage payments, lease 
payments, and utility payments. Id.  
Upon receiving the fraudulently obtained PPP funds, the indictment 
further alleges the defendant used the funds for unauthorized purposes which 
included the purchase of a brand new 40’ boat. Id. at 6. The Court, in 
determining the legal sufficiency of the Indictment, is to assume these factual 
allegations are true. Sharpe, 438 F.3d at 1258-59. Therefore, the Indictment 
sufficiently charges the defendant’s unauthorized use of PPP funds.  
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While the defendant, in his motion, devotes several pages outlining in 
defense his “lawful” use of PPP funds, these arguments should be made in a 
motion for acquittal after the government presents its evidence at trial. See 
Fed. R. Crim. P. 29; Salman, 378 F.3d at 1268. A motion to dismiss is not the 
appropriate vehicle to present facts and evidence in one’s defense.  If anything, 
the portions of the defendant’s motion justifying his use of PPP funds proves 
the indictment sufficiently apprises the defendant of the charges against him.  
B. Count One alleges the financial institution is the Lender, not the 
SBA.  
 
The defendant argues Count One of the indictment, charging bank 
fraud, should be dismissed because the SBA is not a financial institution. Doc. 
25 at 12-13. Nowhere in Count One of the indictment does the government 
allege the SBA is the defrauded financial institution. Further, Count One of 
the indictment sufficiently alleges the defendant defrauded the Lender, 
described in the Introduction section as “a financial institution federally 
insured by the Federal Deposit Insurance Corporation (‘FDIC’)…” Doc. 15 at 
4-7. Count One further alleges the defendant knowingly and intentionally 
executed a scheme and artifice to defraud the Lender by making false, 
fraudulent, and misleading representations in PPP loan applications. Id. 
Moreover, the defendant executed the scheme to defraud “in order to receive a 
loan from the Lender, a bank insured by the FDIC, which loan was 
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guaranteed by the SBA and which proceeds were deposited into accounts at 
the Lender under the defendant’s custody and control.” Id. at 7. Therefore, the 
defendant’s argument in support of dismissing Count One of the indictment 
because the SBA is not a financial institution lacks merit. 
C. Count One and Count Two state an offense and allege the 
requisite intent.  
 
The defendant contends Count One and Count Two of the indictment 
should be dismissed because the government failed to allege the requisite 
intent and state a valid offense. Doc 25 at 13-19. Count One and Count Two 
of the indictment sufficiently allege the requisite intent. Count One alleges the 
defendant knowingly executed a scheme and artifice to defraud a financial 
institution, closely mirroring the language of the bank fraud statute under 18 
U.S.C. § 1344. Doc. 15 at 4-7. Count Two alleges the defendant knowingly 
made a false statement, which tracks the language of the false statement to 
lending institution statute under 18 U.S.C. § 1014. Doc. 15 at 7.  
Again, rooted in the defendant’s reasoning for dismissal is an 
examination of what the defendant believes the facts and evidence to be. This 
includes asking the Court to consider representations of what the defendant 
used PPP funds for and the financial condition of his business in making a 
factual determination of what the defendant’s intent was. Doc. 25 at 13-16. 
The appropriate time and place for such a request would be at trial in a motion 
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for acquittal after the government has presented its evidence. Even the 
McCarrick case, cited and analyzed by the defendant, involved the appellate 
review of the sufficiency of the government’s evidence presented at trial and 
not the legal sufficiency of the governments indictment. See United States v. 
McCarrick, 294 F.3d 1286 (11th Cir. 2002).  As the government previously 
noted, such a pre-trial examination of the evidence is prohibited when ruling 
on a Rule 12(b)(3)(B)(v) motion to dismiss. See Salman, 378 F.3d at 1268.  
D. Counts Three and Four (Illegal Monetary Transactions) 
sufficiently allege and specify the unlawful activity. 
 
The defendant requests a dismissal of Counts Three and Four of the 
indictment because the counts do not specify an unlawful activity. The 
defendant’s reasoning is that since the defendant did not commit bank fraud, 
he cannot be charged with violating 18 U.S.C. § 1957. The indictment itself 
tracks the language of the statute, specifies the unlawful activity as bank fraud, 
and summarizes two separate monetary transactions, in and affecting 
interstate and foreign commerce. Additionally, as previously stated, Count 
One of the indictment sufficiently alleges and charges bank fraud. 
The defendant further argues its belief of what the facts and evidence 
are concerning the appropriate nature of the alleged financial transactions. 
Such a characterization, of which the government would disagree with, is 
based upon the defendant’s representation of the facts and evidence of the 
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case. Again, these are arguments the defendant should be making once the 
government presents its evidence at trial, not in the form of a Rule 12 motion 
to dismiss.   
CONCLUSION 
The defendant’s motion to dismiss goes far beyond the scope of what 
this Court may consider in determining the legal sufficiency of the 
government’s indictment under Rule 12. The indictment tracks the language 
of the applicable statutes and sufficiently apprises the defendant of the charges 
against him. Wherefore, the United States of America respectfully requests the 
defendant’s motion to dismiss (Doc. 25) be denied. 
 
Respectfully submitted, 
 
By: 
 /s/Trent Reichling              
Trenton J. Reichling  
Assistant United States Attorney 
Florida Bar No. 0084601 
2110 First Street, Suite 3-137 
Ft. Myers, Florida 33901 
Telephone: (239) 461-2200 
Facsimile: 
(239) 461-2219 
E-mail: Trenton.Reichling@usdoj.gov 
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U.S. v. Casey David Crowther   
   Case No. 2:20-cr-114-FtM-66MRM 
CERTIFICATE OF SERVICE 
 
I hereby certify that on October 19, 2020, I electronically filed the 
foregoing with the Clerk of the Court by using the CM/ECF system which 
will send a notice of electronic filing to the following: 
Nicole H. Waid  
nicole.waid@fisherbroyles.com  
 
 
 
 
 
 
 
 
/s/ Trent Reichling         
 
 
 
 
 
 
 
Trenton J. Reichling  
 
 
 
 
 
 
 
Assistant United States Attorney 
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