Motion in Limine June 1 2020 Wire Transfer by Casey David Crowther — USA v. Crowther (Dkt. 74, M.D. Fla. No. 2:20-mj-01094, docketed in No. 2:20-cr-00114)

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U.S. District Court for the Middle District of Florida · No. 2:20-cr-00114 · Doc. 74 · 2021-03-08 · Docket on CourtListener

Full text

UNITED STATES DISTRICT COURT 
MIDDLE DISTRICT OF FLORIDA 
FORT MYERS DIVISION 
 
UNITED STATES 
 
v. 
 
 
 
 
 
Criminal No. 2:S20-cr-114-FTM-66MRM 
 
CASEY DAVID CROWTHER  
 
 
 
Defendant. 
_____________________________/ 
 
DEFENDANT’S MOTION IN LIMINE TO EXCLUDE 
EVIDENCE OF JUNE 1, 2020 WIRE TRANSFER 
 
Defendant, Casey David Crowther (“Crowther”), through undersigned 
counsel, and pursuant to Fed. R. Evid. 401 and 403, hereby files his Motion in Limine 
to Exclude Evidence of June 1, 2020 Wire Transfer.    
I. 
INTRODUCTION 
This Court should exclude evidence at trial of a June 1, 2020 wire transfer 
initiated by Crowther that has absolutely nothing to do with the facts or issues in this 
action.  On February 3, 2021, the Government’s counsel provided its Rule 404(b) 
notice advising the undersigned of the Government’s intention to present at trial 
evidence of a June 1, 2020 wire transfer that was initiated by Sanibel Captiva 
Community Bank, at Crowther’s request, in the amount of $55,000.00 to purchase a 
horse from a third party.  This wire transfer bears no relation whatsoever to (a) the 
PPP Loan funds, (b) the April 24, 2020 boat purchase, or (c) the April 21, 2020 
payment against the promissory note alleged in the Second Superseding Indictment.   
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The June 1, 2020 wire transfer for the horse purchase took place well over a 
month after the boat purchase that is the subject of the Second Superseding Indictment 
and was initiated from a business operating account owned by Target Roofing and 
Sheet Metal, Inc. (“Target”), Crowther’s business, that contained comingled funds 
(i.e., both PPP Loan proceeds and non-loan funds derived from Target’s normal 
business operations).1  The June 1, 2020 wire transfer also occurred more than a month 
after the transfer related to Crowther’s alleged payment against the promissory note.  
Importantly, the amount of non-PPP Loan proceeds in the account were more than 
sufficient to cover the amount of the June 1, 2020 wire transfer.   
Moreover, at all times material Target was designated as an S-corporation, 
which means that all business revenue, after subtracting business expenses, were by 
operation of IRS regulations automatically imputed to Crowther as personal income.2  
Consequently, there is absolutely nothing improper, untoward, or illicit about utilizing 
funds held in Target’s operating account for the purchase of Crowther’s personal asset, 
so long as the transaction is properly booked as a distribution to Crowther or a loan 
from Target to Crowther by Target’s tax accountant at the end of the year.   
 
1  
The PPP Loan proceeds originally were deposited into a separate 
corporate bank account with Sanibel Captiva Community Bank (Account ****6331 ).    
After the loan proceeds were deposited into this corporate account, Crowther 
transferred the loan proceeds to Target’s business operating account.  Account 
****6631 already had been closed when the June 1, 2020 wire transfer was initiated.    
 
2  
See https://www.irs.gov/businesses/small-businesses-self-employed/s-
corporations (stating that “S corporations are corporations that elect to pass corporate 
income, losses, deductions, and credits through to their shareholders for federal tax 
purposes”).   
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Under these circumstances, all evidence relating to the June 1, 2020 wire 
transfer, along with the horse purchase, should be completely excluded at trial.  This 
evidence is wholly irrelevant to the facts and issues in the Second Superseding 
Indictment.  The non-existent probative value of such evidence runs the substantial 
risk of unfairly prejudicing Crowther, confusing the issues, and misleading the jury.  
Because (a) the funds held in Target’s operating account were imputed to Crowther as 
personal income, and (b) the operating account had sufficient non-PPP Loan related 
assets to cover the purchase, there was absolutely nothing unlawful about Crowther’s 
actions. 
All of this evidence should be excluded at trial.  The PPP Loan proceeds were 
distributed into one of Target’s accounts on April 14, 2014.  Crowther has been 
charged with utilizing PPP Loan funds in connection with the purchase of a boat later 
in April 2020.  The horse purchase – which was not made from funds contained in the 
PPP account – occurred well over a month after the boat purchase and has nothing to 
do with the boat.  Accordingly, the June 1, 2020 wire transfer for the horse purchase 
has absolutely no bearing on Crowther’s intent when the loan application was made.  
Moreover, despite three (3) opportunities to allege facts regarding the June 1, 2020 
wire transfer and horse purchase (i.e., the original Indictment, the First Superseding 
Indictment, and the Second Superseding Indictment), the Government alleged zero 
facts regarding either the wire transfer or horse purchase in the Government’s charging 
instrument.   
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Accordingly, Crowther requests that evidence of the June 1, 2020 wire transfer 
and the horse purchase be excluded at trial, along with all evidence of any financial 
transactions that are not related to PPP Loan proceeds.   
II. 
MEMORANDUM OF LAW 
A. 
Standard 
Fed. R. Evid. 401 states: “Evidence is relevant if: (a) it has any tendency to make 
a fact more or less probable than it would be without the evidence; and (b) the fact is 
of consequence in determining the action.  Fed. R. Evid. 403 states: “The court may 
exclude relevant evidence if its probative value is substantially outweighed by a danger 
of one or more of the following: unfair prejudice, confusing the issues, misleading the 
jury, undue delay, wasting time, or needlessly presenting cumulative evidence.  
“Under the Federal Rules of Evidence, all evidence is subject to the probative-
prejudicial balancing test of Rule 403.”  United States v. Rodriguez, 259 Fed. Appx. 270, 
275 (11th Cir. 2007) (citing United States v. Hewes, 729 F. 2d 1302, 1314 (11th Cir. 
1984)).   
Exclusion is required where prejudice outweighs probative value.  See, e.g., 
United States v. Preston, 608 F. 2d 626, 639 n. 16 (5th Cir. 1979).  Even where evidence 
has some probative worth, evidence should be excluded where its prejudicial impact 
substantially outweighs any such probative value.  See United States v. Baker, 432 F. 3d 
1189, 1212 (11th Cir. 2005).   
Here, the prejudicial impact of evidence relating to the June 1, 2020 wire 
transfer and horse purchase would substantially outweigh the non-existent probative 
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value of such evidence.  Neither the wire transfer nor horse purchase bear on 
Crowther’s intent when the PPP loan application was made.  Similarly, they have 
nothing to do with the April 24, 2020 boat purchase or April 21, 2020 wire transfer in 
reference to the promissory note payment alleged in the Second Superseding 
Indictment.  Accordingly, all evidence regarding the June 1, 2020 wire transfer and 
horse purchase should be excluded at trial.   
B. 
The June 1, 2020 Wire Transfer is Irrelevant to Crowther’s Alleged Use of 
PPP Loan Proceeds 
 
Evidence relating to the June 1, 2020 wire transfer and horse purchase should 
be excluded at trial because it is wholly irrelevant to Crowther’s alleged use of PPP 
Loan proceeds.  The PPP Loan proceeds were disbursed into one of Target’s accounts 
on April 14, 2020.  The Second Superseding Indictment alleges that Crowther utilized 
PPP Loan proceeds in two (2) ways.  First, it is alleged that Crowther caused a 
$100,000.00 wire transfer to be initiated on April 21, 2020 in connection with a 
payment against a promissory note.  Doc. 62 at p. 9.3  Second, it is alleged that 
Crowther utilized PPP Loan proceeds to purchase a boat on April 24, 2020.  Id.  
Nowhere in the Second Superseding Indictment are any facts alleged regarding the 
June 1, 2020 wire transfer or horse purchase. 
Importantly, the June 1, 2020 wire transfer and horse purchase are not close in 
time to either of the transactions alleged in the Second Superseding Indictment.  The 
 
3  
References to the Second Superseding Indictment are denoted herein as 
“Doc. 62 at p. __.”   
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June 1, 2020 wire transfer occurred well over a month after the promissory note 
payment and boat purchase from a different Target account.  The promissory note 
payment and boat purchase were effectuated using funds that were transmitted to 
different third parties on different dates and had nothing to do with the June 1, 2020 
wire transfer.  The June 1, 2020 wire transfer has absolutely nothing to do with the 
utilization of PPP Loan funds alleged in the Second Superseding Indictment.  Because 
the June 1, 2020 wire transfer and horse purchase have zero relevance to the facts 
alleged in the Second Superseding Indictment, the prejudicial value of this evidence 
clearly significantly exceeds its non-existent probative value.  See, e.g., United States v. 
Baker, 432 F. 3d 1189, 1212 (11th Cir. 2005) (holding that even where evidence has 
some probative worth, evidence should be excluded where its prejudicial impact 
substantially outweighs any such probative value).   
C. 
There is No Correlation Between the PPP Loan Proceeds and the June 1, 
2020 Wire Transfer 
 
Separately, there is absolutely no correlation between the PPP Loan proceeds 
and the June 1, 2020 wire transfer and horse purchase.  The June 1, 2020 wire transfer 
was made to a third party in the amount of $55,000.00 from Target’s business 
operating account at Sanibel Captiva Community Bank.  When the wire transfer was 
made, Target’s business operating account contained comingled funds (i.e., PPP Loan 
proceeds and non-PPP related funds).  The amount of non-PPP related funds in the 
account were more than sufficient to cover the amount of the June 1, 2020 wire 
transfer.  There is absolutely no evidence to the contrary.   
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Moreover, there otherwise was nothing unlawful, untoward, or illicit with 
respect to the June 1, 2020 wire transfer and horse purchase.  Although the June 1, 
2020 wire transfer was made in connection with acquiring a personal asset, it was 
entirely permissible for Crowther to draw upon funds held in Target’s business 
operating account.  At all times material, Target was designated as an S-corporation 
with the IRS.  Therefore, by operation of IRS regulations Target’s income, after 
subtracting business expenses, was automatically imputed to Crowther as personal 
income.  So long as the transaction is properly accounted for by Target’s tax 
accountant at the end of the year as either a distribution or a loan from Target to 
Crowther personally, it is a perfectly lawful transaction.  Crowther was therefore 
properly within his discretion to use funds from the business operating account to 
effectuate the horse purchase.  
Again, when the wire was initiated, the account held a more than sufficient 
amount of non-PPP Loan proceeds to adequately cover Crowther’s horse purchase.  
There is no evidence that the wire transfer or horse purchase utilized any PPP Loan 
proceeds or had anything to do with the specific subject matter alleged in the 
Government’s Second Superseding Indictment.  As such, evidence of both the June 1, 
2020 wire transfer and horse purchase have no probative value whatsoever.  By 
contrast, the prejudicial value of introducing such evidence at trial is clearly 
substantial, inasmuch as it may tend to paint Crowther in a bad light before the jury, 
given that the Government wishes to paint Crowther as a person who was frivolous 
with his money.   
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Accordingly, evidence of the June 1, 2020 wire transfer and horse purchase 
should be excluded at trial.  See, e.g., United States v. Preston, 608 F. 2d 626, 639 n. 16 
(5th Cir. 1979) (recognizing that exclusion is required where prejudice outweighs 
probative value).   
D. 
The Government’s Three Indictments Omit Any Reference to the June 1, 
2020 Wire Transfer as Either a Manner and Means or Inextricably 
Intertwined to the Charges 
 
The Government had three (3) opportunities to allege facts regarding the June 
2, 2020 wire transfer and horse purchase – i.e., the original Indictment, First 
Superseding Indictment, and Second Superseding Indictment.  In fact, the 
Government had full knowledge of the June 1, 2020 wire transfer and horse purchase 
before Crowther’s arrest in September 2020.  Yet, the Government never alleged any 
facts whatsoever regarding these matters.  Notably, the Government’s Rule 404(b) 
notice was provided to the undersigned on February 3, 2021.  The Second Superseding 
Indictment was filed seven (7) days later but importantly alleged zero facts regarding 
either the June 1, 2020 wire transfer or horse purchase.  The Government knowingly 
opted to omit references to these facts in the Second Superseding Indictment.   
Consequently, the Second Superseding Indictment (along with all of the 
Government’s prior Indictments) contains no allegations whatsoever referencing 
either the June 1, 2020 wire transfer or horse purchase as a manner and means of the 
crimes charged.  Similarly, the Second Superseding Indictment also contains zero 
allegations that the June 1, 2020 wire transfer and horse purchase utilized PPP Loan 
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proceeds that were inextricably intertwined with the offenses charged in the Second 
Superseding Indictment.   
Clearly, the Government’s failure to allege any such facts anywhere in the 
Second Superseding Indictment – which was filed a full week after the Government 
provided the undersigned with its Rule 404(b) notice – should preclude the 
Government’s ability to now introduce such irrelevant facts at trial that are not 
probative as to any relevant issue.  See, e.g., United States v. Preston, 608 F. 2d 626, 639 
n. 16 (5th Cir. 1979) (recognizing that exclusion is required where prejudice outweighs 
probative value).   
E. 
The June 1, 2020 Wire Transfer and Horse Purchase Are Irrelevant to 
Crowther’s Intent 
 
Additionally, evidence of the June 1, 2020 wire transfer and horse purchase 
should be excluded at trial because they are wholly irrelevant to Crowther’s intent 
when the PPP Loan application was made.  As alleged in the Second Superseding 
Indictment, Crowther’s original PPP Loan application was submitted on or about 
April 7, 2020, which was followed by a revised loan application that was submitted on 
or about April 13, 2020.  SSI at p. 5.  The PPP loan proceeds were distributed shortly 
thereafter, in the month of April.  Id. at p. 9.  Consequently, the June 1, 2020 wire 
transfer and horse purchase – which occurred more than a month later – were 
substantially removed in time from the PPP Loan application.  As a result, the wire 
transfer and horse purchase have absolutely no bearing whatsoever on Crowther’s 
alleged intent with respect to the offenses charged in the Second Superseding 
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Indictment.  The probative value of this evidence therefore is substantially outweighed 
by the risk of unfair prejudice, confusing the issues, and misleading the jury.  See, e.g., 
United States v. Preston, 608 F. 2d 626, 639 n. 16 (5th Cir. 1979) (holding that exclusion 
is required where prejudice outweighs probative value); United States v. Baker, 432 F. 
3d 1189, 1212 (11th Cir. 2005) (holding that even where evidence has some probative 
worth, evidence should be excluded where its prejudicial impact substantially 
outweighs any such probative value).   
Accordingly, evidence relating to the June 1, 2020 wire transfer and the horse 
purchase should be excluded at trial, along with all evidence of any financial 
transactions that are not related to PPP Loan proceeds.   
III. 
CONCLUSION 
Based on the foregoing, Crowther respectfully requests that this Court (a) grant 
the instant Motion in all respects; (b) completely exclude at trial all evidence of the 
June 1, 2020 wire transfer and horse purchase pursuant to Fed. R. Evid. 401 and 403, 
along with all evidence of any financial transactions that are not related to PPP Loan 
proceeds; and (c) enter such other and further relief this Court deems just and proper.   
 
 
 
 
 
Respectfully Submitted,  
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/s/ Nicole H. Waid____ 
Nicole H. Waid, Esq.  
Florida Bar No. 0121720 
nicole.waid@fisherbroyles.com 
 
/s/ Brian E. Dickerson 
Brian E. Dickerson, Esq. 
Fla. Bar No. 106615 
brian.dickerson@fisherbroyles.com 
 
 
 
 
 
 
 
 
FISHERBROYLES, LLP  
                                
 
 
 
2390 Tamiami Trail North, Suite 100  
                                
 
 
 
Naples, Florida 34103  
                                
 
 
 
Phone: (202) 906-9572  
                                
 
 
 
Fax: (239) 236-1360  
                               
 
 
 
CERTIFICATE OF SERVICE 
 
I, Nicole H. Waid, attorney for Casey David Crowther, do hereby certify that I 
have, this day, 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____ 
Nicole H. Waid, Esq.  
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