Reply to Response to Motion by Casey David Crowther — USA v. Crowther (Dkt. 52, 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. 52 · 2020-12-13 · Docket on CourtListener

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UNITED STATES DISTRICT COURT 
MIDDLE DISTRICT OF FLORIDA 
FORT MYERS DIVISION 
 
UNITED STATES 
 
v. 
 
 
 
 
 
Criminal No. 2:20-cr-114-FTM-66MRM 
 
CASEY DAVID CROWTHER 
 
 
 
Defendant. 
_____________________________/ 
 
DEFENDANT’S REPLY TO GOVERNMENT’S OPPOSITION TO DEFENDANT’S 
MOTION TO DISMISS COUNTS ONE THROUGH FOUR OF THE SUPERSEDING 
INDICTMENT OR, IN THE ALTERNATIVE, REQUEST A BILL OF PARTICULARS  
 
The Defendant, Casey David Crowther (“Crowther”), through undersigned counsel, hereby 
files his Reply to the Government’s Opposition to Defendant’s Motion to Dismiss Count One 
through Four of the Superseding Indictment. [D.E. 47].  The Government’s Opposition continues 
to ignore the fact that, as a matter of law, Crowther has not violated the regulations governing the 
Paycheck Protection Program (“PPP”).  Crowther understands the Superseding Indictment charges 
him with 18 USC §1344, 18 USC §1014, and 18 USC §1957 however these charges cannot be 
substantiated, or even exist, without the violation of an underlying regulation that governs the PPP.  
It is fundamentally unfair to believe that a business owner can adhere to the regulations governing 
a government program and still be prosecuted for a federal crime upon which he can lose his 
business and his freedom. 
The theory of fraud that the Government relies upon for Counts One through Four of the 
Superseding Indictment is premised on the Government’s misunderstanding and misapplication of 
the regulations that govern the CARES Act that was signed into law on March 27, 2020.  This 
misguided interpretation of the standards and rules adopted by the Small Business Administration 
(“SBA”) led to the premature arrest of Crowther and a created a legal deficiency that is fatal to the 
Case 2:20-cr-00114-JES-M_M     Document 52     Filed 12/13/20     Page 1 of 5 PageID 190

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Superseding Indictment as a matter of law.  In the Government’s Response to the Defendant’s 
Motion to Dismiss the Superseding Indictment the Government states that “the superseding 
indictment does not charge the defendant with violating the CARES Act.” [D.E. 47, pgs. 6, 7].  
This assertion is illogical; the charges of bank fraud and related charges in Counts 1-4 rest solely 
upon alleged violations of the CARES Act and its governing regulations. If Crowther did not 
violate the CARES Act, he cannot be convicted of the charges within the Superseding Indictment. 
The Superseding Indictment spends three (3) pages summarizing the Paycheck Protection 
Program (hereinafter “PPP”). [D.E. 32, pgs. 2-4].  The term “PPP” is utilized forty-six (46) times 
throughout the Superseding Indictment. [D.E. 32.]1 The Government’s entire premise is that 
Crowther submitted a fraudulent PPP loan application on behalf of Target Roofing through the 
SBA. [D.E. 32, pg. 5].   The manner and means of the scheme to defraud focus solely upon the 
PPP application. [D.E., pgs. 4-6].  The PPP is governed and administered via federal regulations 
that are found within the twenty-five (25) Interim Final Rules (“IRFs”) issued by the Small 
Business Administration (“SBA”). SBA Paycheck Protection Program, Fed. Reg. Vol. 85, No. 73, 
pg. 20811 (April 25, 2020) (to be codified in 13 CFR Part 120), et al. The SBA issued guidance 
to lenders and borrowers who participated in the PPP through the IRFs.  The IRFs provided 
parameters for the PPP and set the requirements for loan qualifications, loan processing, and loan 
forgiveness.  The borrowers and lenders were required to follow the IRFs as they were published 
in order to abide by the terms of the program, as well as abide by the law. Quite simply, there 
cannot be a charge of bank fraud or a charge of making a false statement to a financial institution 
without a violation of the CARES Act and its governing regulations.  The Government fails to 
 
1 The Government states it did not charge Crowther with a violation of the CARES Act, however its press release on 
September 2, 2020, the date of Mr. Crowther’s arrest, appears to state otherwise: “Fort Myers Business Owner 
Arrested and Charged With COVID Relief Fraud.” 
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state which regulations governing the CARES Act, if any, Crowther violated. Without a violation 
of the regulations governing the PPP, there is no sufficient legal basis for the Government’s theory 
of fraud.  
The question before the Court is a matter of law. Crowther contends that the Government’s 
interpretation of the CARES Act and its regulations is inaccurate which resulted in the premature 
arrest of Crowther and a fatally flawed Superseding Indictment.  The regulations are clear that that 
the borrower is receiving a loan from the lender. Paycheck Protection Program—Revisions to First 
Interim Final Rule, Fed. Reg. Vol. 85, No. 116 (June 16, 2020). The borrower has twenty-four weeks 
to spend PPP funds on certain allowable expenses to qualify for forgiveness. Id. The regulations 
do not require that specific funds be utilized or when those funds must be spent; a borrower can 
spend the entire amount of the loan in the final week of the twenty-four-week period and still 
qualify for forgiveness.  The borrower also has the option of simply paying back the loan to the 
lender. Id.  The regulations allow the borrower to utilize the money for expenses that may not be 
allowable expenses for forgiveness and still receive the benefit of a low interest loan.  This is not 
only perfectly permissible pursuant to the regulations it is also good business.  
     Without any allegations of misrepresentations in the Superseding Indictment pertaining 
to qualifying requirements of the PPP loan application (ie. number of employees, payroll 
calculations, etc.), Crowther’s arrest and subsequent charges prior to the conclusion of the twenty-
four-week period are premature as a matter of law. The Government cannot create additional 
requirements beyond those that are found within the IRFs.   As such, the Government cannot 
impute illegality on how a company accounts for the PPP funds or when those funds are spent if 
those requirements are not found within the regulations themselves.  It is beyond comprehension 
to believe that a business owner can follow the regulations as stated in the IRFs and yet still be 
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prosecuted for violating a federal crime. It is fundamentally unfair to allow the Government to do 
so.   
The bill of particulars requested was a specific request for the Government to specify the 
regulations that Crowther allegedly violated pursuant to the PPP.  Crowther is well aware of the 
facts of the case and plausible defenses.  The entire defense team however remains baffled as to 
how the stipulated facts laid out in the Defendant’s Motion to Dismiss Counts One through Four 
of the Superseding Indictment [D.E. 32, pgs. 3-4] constitute a violation of the regulations that 
govern the PPP.  But for a violation of the regulations, a theory of fraud simply cannot exist.   
Crowther maintains that the Government’s misinterpretation of the CARES Act and its 
governing regulations creates a legal deficiency in Counts One through Four of the Superseding 
Indictment.  The Government’s claim that Crowther is not charged with a violation of the CARES 
Act is illogical and disingenuous.  In order to charge a theory of fraud, the Government must allege 
that Crowther violated some regulation pertaining to the PPP.  That regulation must also be placed 
within the context of all the IRFs and the intent of the PPP as stated within the regulations.  The 
Government cannot be allowed to make its own rules. Accordingly, Defendant, Casey David 
Crowther respectfully requests that this Court dismiss Counts One through Four of the Superseding 
Indictment. In the alternative, Crowther respectfully requests that the Court order the Government 
to file a bill of particulars specifying which federal regulation governing the CARES Act Crowther 
is alleged to have violated. 
 
 
 
 
Case 2:20-cr-00114-JES-M_M     Document 52     Filed 12/13/20     Page 4 of 5 PageID 193

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Respectfully Submitted,  
/s/ Nicole H. Waid____ 
Nicole H. Waid, Esq.  
 
 
 
FISHERBROYLES, LLP  
                               
2390 Tamiami Trail North  
                               
Suite 100  
                               
Naples, Florida 34103  
 
 
 
Florida Bar # 0121720 
                               
Phone: (202) 906-9572  
                               
Fax: (239) 236-1360  
                             Email: nicole.waid@fisherbroyles.com 
 
/s/ Brian E. Dickerson 
Brian E. Dickerson, Esq.  
 
 
 
FISHERBROYLES, LLP  
                               
2390 Tamiami Trail North  
                               
Suite 100  
                               
Naples, Florida 34103  
 
 
 
Florida Bar # 106615 
                               
Phone: (202) 570-0248  
                               
Fax: (239) 236-1360  
                             Email: brian.dickerson@fisherbroyles.com 
 
 
 
CERTIFICATE OF SERVICE 
    
  
 I, Nicole H. Waid and Brian E. Dickerson, attorneys for Casey David Crowther, do hereby 
certify that we have, this day, December 13, 2020, filed the foregoing with the Clerk of Court via 
the CM/ECF system, which has caused a true and correct copy to be served on all counsel of 
record.  
 
/s/ Nicole H. Waid 
 
/s/ Brian E. Dickerson 
Nicole H. Waid, Esq.  
Brian E. Dickerson, Esq.  
Case 2:20-cr-00114-JES-M_M     Document 52     Filed 12/13/20     Page 5 of 5 PageID 194

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