Court filing
Motion in Limine Preclude References to Alleged Fraudulent Employment Scheme — USA v. Crowther (Dkt. 75, M.D. Fla. No. 2:20-mj-01094, docketed in No. 2:20-cr-00114)
Filed March 8, 2021 in USA v. Crowther; one of 318 filings from this case.
Record facts
| Court | U.S. District Court for the Middle District of Florida |
|---|---|
| Filed | 2021-03-08 |
U.S. District Court for the Middle District of Florida · No. 2:20-cr-00114 · Doc. 75 · 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 PRECLUDE REFERENCES
TO ALLEGED FRAUDULENT EMPLOYMENT SCHEME
Defendant, Casey David Crowther (“Crowther”), through undersigned
counsel, and pursuant to Fed. R. Evid. 401 and 403, hereby files his Motion in Limine
to Preclude References to Alleged Fraudulent Employment Scheme.
I.
INTRODUCTION
The Government should be precluded from making references at trial to any
alleged fraudulent employment scheme involving either Crowther or Target Roofing
and Sheet Metal, Inc. (“Target”), Crowther’s company. In particular, the
Government should not be permitted to reference any scheme whereby Crowther,
through Target, allegedly fabricated individuals on Target’s payroll, books, and
records in order to seek forgiveness of the subject Paycheck Protection Program Loan
(the “PPP Loan”). The Government has absolutely no evidence that Crowther (a)
fabricated employee identities, (b) fabricated non-existent persons on Target’s payroll,
Case 2:20-cr-00114-JES-M_M Document 75 Filed 03/08/21 Page 1 of 13 PageID 263
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books, and records; (c) sought forgiveness of the PPP Loan; or (d) falsified employee
identities in connection with seeking loan forgiveness.
The Government’s theory is that in order to qualify for forgiveness with respect
to the PPP Loan, Crowther falsely created thirty nine (39) employees (the
“Employees”) and improperly included six (6) family members (the “Family
Members”) on Target’s payroll when, in reality, these individuals either were non-
existent or never performed work for the company. Crowther, however, never applied
for forgiveness of the PPP Loan. Thus, it is impermissible for the Government to
assume that Crowther intended to apply for loan forgiveness while having zero
evidence to support such a false assertion.
Moreover, the Government’s theory regarding the alleged fabrication of
Target’s Employees does not bear on Crowther’s alleged intent when Crowther signed
the PPP Loan application. Along the same line, the Government cannot attribute
crimes to Crowther that have not yet occurred. As such, even if the Government had
any evidence that the Employees had been fabricated (it does not), any probative value
of such evidence clearly would be outweighed by substantial danger of unfair
prejudice, confusing the issues, and misleading the jury because it does not speak to
Crowther’s intent with respect to the charges in the Government’s Second Superseding
Indictment.
The Government’s theory relies upon allegedly false social security numbers
derived from the paperwork submitted by Employees hired by Target during the
relevant time period. There is no evidence tying Crowther whatsoever to the alleged
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inaccurate information. Importantly, the Government has stated that a State
Department witness will testify at trial that accuracy of information provided on a
Form I-9 is the legal responsibility of the prospective employee, not the employer.
Unfairly shifting this burden to Target and Crowther is inconsistent with the governing
law, particularly given that Crowther was not directly involved in the hiring of Target’s
Employees. In the event that some of Target’s former Employees unlawfully
misrepresented their eligibility for employment, there is still no evidence that Crowther
had any knowledge regarding such facts.
Against the backdrop that the Government has no evidence supporting its
fabricated employment theory, it would be highly prejudicial for the Government to
be permitted to raise these unsupported assertions at trial. Any such references
necessarily will invoke aspersions and insinuations of illegal immigration in the
roofing industry that are likely to unfairly prejudice Crowther. Given that the
Government has zero evidence supporting a fabricated employment theory, there is
absolutely zero probative value that possibly could justify any reference to such
unsupported assertions.
Accordingly, Crowther requests that this Court preclude the Government at
trial from presenting to the jury any statements or references to the effect that Crowther
(a) fabricated Employee identities, (b) fabricated non-existent persons on Target’s
payroll, books, and records; (c) sought forgiveness of the PPP Loan; or (d) falsified
Employee identities in connection with seeking loan forgiveness.
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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 non-existent evidence requires exclusion at trial
of any references to the Government’s fraudulent employment scheme theory.
Insinuations or aspersions regarding unfounded allegations of an alleged fraudulent
employment scheme that is supported by no evidence whatsoever clearly has zero
probative value. Furthermore, the evidence is entirely irrelevant as to the charges
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against Crowther which specifically speak to his intent at the time he signed the PPP
loan application. See Doc. 62 at pp. 2-8. This red herring would only serve to confuse
and mislead the jury. Finally, the Government’s theory incorrectly shifts the burden
of accurate I-9 paperwork reporting from the Employees to Target and Crowther.
Because this burden shift completely contradicts the law, as described in greater detail
below, it must be excluded. See infra, Puente Arizona v. Arpaio, No. CV-14-01356-PHX-
DGC, 2016 U.S. Dist. LEXIS 162578 at *26-27 (D. Ariz. Nov. 22, 2016) (recognizing
that federal law imposes criminal penalties on persons who knowingly forge,
counterfeit, or alter any documents prescribed for proof of identity or employment
authorization).
B.
The Government Has Zero Evidence That Crowther Participated in Any
Fraudulent Employment Scheme
The Government’s theory that Crowther fabricated Employee identities and the
existence of individuals on Target’s payroll, books, and records is completely
unfounded, speculative, and unsupported by any evidence. In fact, Target gathered
legally valid Form I-9s and the required identification demonstrating that they were
eligible to be lawfully employed in the United States for all Employees during the
relevant time period as required by the law. To the extent that Target may have been
presented with forged identification or inaccurate I-9 Forms that appeared to be
facially valid, the Government cannot prove any wrongdoing on the part of either
Crowther or Target, who themselves would have been the victims of unlawful actions
committed by those individuals seeking employment. In any event, there is absolutely
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no evidence that Crowther or Target took any actions besides collecting the necessary
documentation presented by prospective Employees regarding their eligibility for
lawful employment in the United States. There is also no legal requirement for
employers to verify identification information of prospective employees; in fact,
employers are often advised against such verification on discrimination grounds. See
infra, Chamber of Commerce of the United States v. Edmondson, 594 F. 3d 742, 751 (10th
Cir. 2010) (citing 8 U.S.C. §§ 1324a(b)(1)(A)(ii), 1324b(a)(6), which recognize that
requiring additional documentation from employees beyond information and
documents that appear to be facially valid may encompass a discriminatory purpose).
Similarly, there is absolutely zero evidence that Crowther was directly involved
in Target’s new employee hiring activities. In fact, this function was performed by
Target’s human resources personnel, not Crowther personally. There is no evidence
that Target’s human resources personnel committed any unlawful actions relating to
employee hiring or that Crowther had any knowledge of or involvement in any
activities that could be considered unlawful. Simply put, there is a complete lack of
evidence supporting the Government’s unfounded theory.
Notably, the Government’s entire theory is that Crowther made up identities of
non-existent Employees in order to qualify for forgiveness of the PPP Loan. However,
it is undisputed that Crowther never actually applied for forgiveness of the subject PPP
Loan. There is no evidence to the contrary. Undoubtedly, there could be nothing
more prejudicial than permitting the Government to introduce at trial a theory that
literally has zero evidentiary support. See, e.g., Rodriguez, 259 Fed. Appx. at 275
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(recognizing that all evidence is subject to Rule 403’s probative-prejudicial balancing
test).
Moreover, there literally is zero evidence and, consequently, nothing to weigh
in the Court’s probative-prejudicial analysis. Since there is no evidence to be
considered, there necessarily is zero probative value. Yet, the prejudicial impact to
Crowther of allowing the Government’s unfounded assertions and theories regarding
Target’s Employees to be introduced at trial clearly would be severe, devastating, and
fundamentally unfair. See, e.g., Baker, 432 F. 3d at 1212 (holding that even where
evidence has some probative worth, it should be excluded where probative value is
substantially outweighed by its prejudicial impact).
A.
The Government’s Theory is Entirely Irrelevant to the Issue of Crowther’s
Intent
Separately, the Government’s theory regarding alleged Employee fabrication
should be precluded because it has absolutely no bearing whatsoever on the element
of intent relative to the charges in the Second Superseding Indictment. In particular,
the charges against Crowther regarding the PPP Loan are Bank Fraud (Count I), False
Statement to a Lending Institution (Count II), and Illegal Monetary Transaction
(Counts III and IV). All of these charges are predicated on Crowther’s alleged
application for and actual procurement of the subject PPP Loan.1 See Doc. 62, pp. 2-
1
Notably, the Government’s Response in Opposition to Defendant’s
Motion to Dismiss Indictment clearly argued that the subject matter of this criminal
case is not Crowther’s utilization of the PPP Loan funds. Instead, the heart of the
matter is Crowther’s alleged misstatements on the PPP Loan application to the
Lender. See Doc. 30 at pp. 5-6.
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9. As alleged in the Second Superseding Indictment, the loan application was made
in April 2020. Id. at pp. 4, 6-7.
By contrast, any alleged wrongdoing by Crowther regarding Employee
fabrication necessarily could not have occurred during the time period relevant to the
Second Superseding Indictment. If the Government’s theory is to be believed, these
events could not have occurred any earlier than the months and weeks after the PPP
Loan funds were disbursed. Consequently, the Government’s entire theory regarding
purported Employee fabrication for the purpose of qualifying for loan forgiveness
necessarily is not relevant to Crowther’s intent to commit the crimes charged in the
Second Superseding Indictment. Under these circumstances, the Government’s
theory – even if supported by evidence – should be excluded at trial because it is not
probative to the issue of Crowther’s intent.2 By contrast, the prejudicial impact of
allowing the Government’s irrelevant theory to be put before the jury would be
substantial, to say the least. See, e.g., Baker, 432 F. 3d at 1212 (holding that even where
evidence has some probative worth, it should be excluded where probative value is
substantially outweigh by its prejudicial impact).
B.
Holding Crowther Criminally Responsible for Wrongdoing By Former
Target Employees is Improper
2
The Government cannot be allowed to proceed on its fabricated
employment theory because it effectively constitutes charging Crowther for alleged
crimes that have not yet occurred. Crowther should not (and cannot) be held
criminally liable for the Government’s premature arrest.
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Moreover, the Government’s fraudulent employment scheme theory should be
precluded at trial because it impermissibly seeks to hold Crowther criminally
responsible for wrongdoing that – if it occurred at all – was committed solely by third
parties. In particular, neither Crowther nor Target are responsible for any
misrepresentations or falsities made by applicants or new Employees regarding their
eligibility for lawful employment in the United States.
Under the federal Immigration Reform and Control Act (“IRCA”), new
employees must present employers with proof that they are legally authorized to work
in the United States. Specifically, employees are required to complete the employee
section of USCIS Form I-9 by the end of their first day on the job. See USCIS
Handbook
for
Employers
M-274,
Section
2.0,
available
at
https://www.uscis.gov/book/export/html/59502. Employees then have three (3)
business days to present employers with appropriate documentation proving their
identity and qualification for lawful employment in the United States. Id. Employees
who violate these requirements by presenting forged, counterfeit, or altered documents
may be fined and imprisoned. See, e.g., Puente Arizona v. Arpaio, No. CV-14-01356-
PHX-DGC, 2016 U.S. Dist. LEXIS 162578 at *26-27 (D. Ariz. Nov. 22, 2016)
(recognizing that IRCA imposes criminal penalties on persons who knowingly forge,
counterfeit, or alter any documents prescribed for proof of identity or employment
authorization).
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By contrast, employers are not subject to penalties unless they are repeat
offenders. In Chamber of Commerce of the United States v. Edmondson, 594 F. 3d 742 (10th
Cir. 2010), the Tenth Circuit stated:
Congress opted to create a substantial safe harbor for
employers that comply with the I-9 system. 8 U.S.C. §
1324a(b)(6)(A). Unless an employer persists in violating
IRCA after being put on notice of its noncompliance or
engages in a pattern or practice of violations, §
1324a(b)(6)(B), (C), employers who attempt to comply in
good faith are protected from civil and criminal penalties
under federal law, § 1324a(b)(6)(A).
Id. at 751.
Moreover, “[a]n employee who submits verification documents that
‘reasonably appear [] on [their] face to be genuine’ may not be required to produce
different or additional documents if such requests by employers are made for the
purpose or with the intent of discriminating.” Id. (citing 8 U.S.C. §§ 1324a(b)(1)(A)(ii),
1324b(a)(6)).
A witness from the State Department will testify at trial that accuracy of relevant
information submitted on the Form I-9, along with documents submitted verifying
identity, is the burden of the employee, not the employer. The Government’s theory
unlawfully attempts to shift this burden to Crowther. Because the Government’s
theory is wholly contrary to IRCA, the Government should be precluded from making
any reference to its legally and factually unsupportable fraudulent employment scheme
theory at trial.
C.
Referencing Illegal Immigration at Trial Presents the Risk of Severely
Prejudicing Crowther
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The Government also should be precluded from referencing its unfounded,
unsupported fraudulent employment scheme theory at trial because doing so would
present the risk of severely prejudicing Crowther. As the Court is aware, public
opinion concerning illegal immigration is a widely and highly polarized political
matter. In recent years, this matter has become even more polarized by virtue of vastly
differing public opinion regarding the alleged need for a southern border wall, along
with numerous incidents raising humanitarian concerns regarding prolonged
detention of unaccompanied minor children whose parents unlawfully crossed the
border into the United States. These highly volatile political issues are likely to be
triggered by the Government’s introduction of evidence relating to Target’s former
Employees who may be lawful immigrants or undocumented immigrants who may
have unlawfully presented forged, counterfeit, or altered forms of identification to
Target during the hiring process.
Clearly, the risk associated with introducing the politically charged issue of
illegal immigration at trial may potentially trigger strong emotional reactions among
some jurors; in particular, jurors holding strong political views. Issues regarding illegal
immigration present a strong risk of unfair prejudice, confusing the issues, and
misleading the jury, while offering no probative value whatsoever. See, e.g., Gresham
v. Petro Shopping Ctrs., LP, No. 3:09-00034-RCJ-VPC, 2011 U.S. Dist. LEXIS 36568 at
*12-13 (D. Nev. Mar. 18, 2011) (declining to permit witness impeachment based on
bare immigration status where such impeachment would be substantially more
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prejudicial than probative due to emotional nature of illegal immigration issue); Hocza
v. City of New York, No. 06 Civ. 3340, 2009 U.S. Dist. LEXIS 3574 at *6-7 (S.D. N.Y.
Jan. 20, 2009) (holding that any probative value that party’s immigration status might
provide was outweighed by the obvious prejudice that might flow from its use to
speculate as to the party’s removal from the country); Peterson v. Neme, 281 S.E. 2d
869, 872 (Va. 1981) (holding that immigration status was of questionable probative
value and uniquely prejudicial; therefore, the trial judge committed no error in refusing
to admit it).
Accordingly, Crowther requests that this Court preclude the Government at
trial from presenting to the jury any statements or references to the effect that Crowther
(a) fabricated Employee identities, (b) fabricated non-existent persons on Target’s
payroll, books, and records; (c) sought forgiveness of the PPP Loan; or (d) falsified
Employee identities in connection with seeking loan forgiveness.
III.
CONCLUSION
Based on the foregoing, Crowther respectfully requests that (a) this Motion be
granted in all respects; (b) that this Court preclude the Government at trial from
presenting to the jury any statements or references to the effect that Crowther (1)
fabricated Employee identities, (2) fabricated non-existent persons on Target’s payroll,
books, and records; (3) sought forgiveness of the PPP Loan; or (4) falsified Employee
identities in connection with seeking loan forgiveness; and (c) this Court enter such
other and further relief this Court deems just and proper.
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Respectfully Submitted,
/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
625 Tamiami Trail North,
Suite 203
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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