First Motion in Limine by USA as to Casey David Crowther — USA v. Crowther (Dkt. 76, 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. 76 · 2021-03-08 · Docket on CourtListener

Full text

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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-JES-MRM 
 
CASEY DAVID CROWTHER 
 
UNITED STATES OF AMERICA’S MOTION IN LIMINE 
REGARDING LOAN “FORGIVENESS” 
 
 
The United States of America seeks an order prohibiting Defendant 
Casey Crowther from eliciting testimony, introducing evidence, or making 
argument that the loan he procured for his company, Target Roofing and 
Sheet Metal, Inc. (Target Roofing), is forgivable under the terms of the 
Paycheck Protection Program (PPP).  
Introduction 
The defendant is charged in a seven-count second superseding 
indictment with bank fraud (18 U.S.C. § 1344) (Counts One and Five), false 
statements to a lending institution (18 U.S.C. § 1014) (Counts Two and Six), 
and illegal monetary transactions (18 U.S.C. § 1957) (Counts Three, Four, and 
Seven). Doc. 62.  The seven charges can be grouped into two categories:  those 
related to Crowther’s procurement of a PPP loan from the Lender and those 
related to Crowther’s procurement of a mortgage loan from the Mortgage 
Lender. 
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With respect to the PPP loan, the government intends to prove that 
Crowther applied for an approximately $2.1 million loan from the Lender on 
behalf of his company Target Roofing.  When he applied for the loan, 
Crowther represented to the Lender that Target Roofing would only use the 
proceeds of the loan for things like payroll and rent, even though he intended 
to impermissibly use the proceeds to benefit himself.  Upon receipt of the PPP 
money, Crowther quickly diverted much of it to purchase a nearly $700,000 
boat and pay off $100,000 in debt to an old business partner.1  Crowther took 
steps to conceal the payments by describing the wire for the boat as 
“equipment” and the wire to the ex-business partner as “payroll.”2 
Crowther appears to believe that the PPP loan he procured will qualify 
for forgiveness in the future and appears poised to argue that the anticipated 
forgiveness is evidence of his innocence.3   Though it is not entirely clear why 
Crowther believes the loan will be forgiven, his argument seems premised on 
rules governing the PPP program which permit lenders to conduct a limited 
 
1 Crowther had been negotiating the purchase of the boat prior to obtaining the PPP 
loan. 
2 The ex-business partner was not owed any back pay. 
3 In a September 21, 2020 letter, counsel for Crowther told the government that 
Target Roofing Payroll records demonstrate that it spent the total amount of 
proceeds from the PPP loan on payroll, “thus qualifying the Company for full 
forgiveness of the loan.”  Crowther also claimed in a motion to dismiss that he 
qualifies for loan forgiveness because he can demonstrate he spent 100% of the PPP 
funds on payroll.  Doc. 25 at p. 7-8. 
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review of forgiveness applications before making a recommendation to the 
Small Business Administration (SBA) on the issue. 
Crowther should not be permitted to introduce evidence for the purpose 
of supporting an argument that the PPP loan will be forgiven in the future.  
Such an argument is speculative and improper to place before the jury.  
Moreover, such an argument places the cart before the horse—whether 
Crowther lied in obtaining the PPP loan will determine whether the loan is 
forgivable, not the other way around. 4   
Argument 
Key portions of the PPP program are codified at 15 U.S.C. §§ 636 and 
9005.  Section 636(a)(36) sets forth the general framework of the program, 
which is administered by the SBA.  It describes the general contours of the 
program, including who qualifies for such loans, so called “eligible recipients” 
(§ 636(a)(36)(A)-(B)), and the certifications eligible recipients must make to 
receive a loan (§ 636(a)(36)(G)).  Section 9005 sets forth the forgiveness 
process.  To obtain forgiveness of a PPP loan, the recipient must have been 
 
4 The argument is also circular in that it uses a premise to prove a conclusion 
that is in turn used to prove the premise.  See Sierra Club v. Flowers, 423 
F.Supp.2d 1273, 1356 at n. 240 (S.D. Fla. 2006)(discussing circular 
reasoning).  Here, using the belief that the loan will be forgiven, which is 
premised on Crowther not having lied to the Lender, to prove that he didn’t lie 
to the Lender, is circular. 
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“eligible” for it in the first place.  See 85 F.R. 33010, 33012 (stating that “the 
CARES Act provides for forgiveness of a PPP loan only if the borrower is an 
‘eligible recipient.’  The Administrator has determined that to be an eligible 
recipient that is entitled to forgiveness … the borrower must have been an 
eligible recipient under [Section 6366(a)(36)(A)].”).   Id.  
Accordingly, the SBA has issued rules which state that, if during the 
course of an SBA review of a loan in connection with a forgiveness 
application, it determines that “the borrower was ineligible for the PPP loan 
based on … the terms of the borrower’s PPP loan application (for example 
because the borrower lacked an adequate basis for the certifications that it 
made in its PPP loan application), the loan will not be eligible for forgiveness.”  85 
F.R. 33004, 33005 (emphasis added); see also 86 F.R. 8283, 8288 (Final 
Interim Rule consolidating prior rules regarding PPP program and stating the 
same).  In such a case, the “SBA will direct the lender to deny the loan 
forgiveness application.”  86 F.R. 8283, 8295. 
Upon receipt of a forgiveness application, a lender must decide on 
forgiveness within 60 days and forward the decision to the SBA. 86 F.R. 8283, 
8296. The lender’s review role, however, is limited.  It examines forms 
submitted by the borrower and it is entitled to rely on representations made in 
them.  Id.  In that regard, “the lender does not need to independently verify 
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the borrower’s reported information if the borrower submits documentation 
supporting its request for loan forgiveness and attests that it accurately verified 
the payments for eligible costs.”  Id.  Once the lender has made its 
recommendation on forgiveness, the SBA may accept or deny it.  86 F.R. 
8283, 8297 (discussing SBA review after lender recommendation on 
forgiveness).   
In summary, a borrower who lies in the certifications made to obtain a 
PPP loan is not eligible for forgiveness, and if discovered, the SBA will direct 
the bank who provided the loan to deny the forgiveness application, whatever 
the lender’s initial recommendation may have been.  With that established, 
the impropriety of accepting evidence and argument solely directed at 
demonstrating the PPP loan in this case is forgivable becomes clear. 
Evidence is only admissible if it is relevant.  Fed. R. Evid. 402.  And 
evidence is only relevant if it has “any tendency to make a fact more or less 
probable than it would be without the evidence” and the fact is of consequence 
in the case.  Fed. R. Evid. 401.   As discussed above, forgiveness turns on 
(amongst other things) whether Crowther committed the fraud alleged in this 
case.  Thus, the loan’s forgivability cannot be demonstrated until the jury 
determines the central issue in this case:  whether Crowther lied to the lender 
when procuring the PPP loan.  Any attempt to suggest to the jury the loan 
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qualifies for forgiveness proves nothing about the fraud, and evidence and 
argument in that regard is therefore irrelevant.   
Such evidence or argument presents other problems, too—confusing 
and misleading the jury and wasting time.  When those dangers substantially 
outweigh the probative value of certain evidence, the evidence should be 
excluded.  See Fed. R. Evid. 403 (permitting the exclusion of evidence with 
probative value that is substantially outweighed by the danger of confusing the 
issues, misleading the jury, and wasting time.). 
The risk is high that a jury will be misled and confused by evidence and 
argument regarding forgiveness.  The term itself connotes a sense of 
blamelessness, especially in the context of a loan, which is misleading in this 
criminal inquiry.  Moreover, this a is a bank fraud case, not a case regarding 
whether Crowther has complied with or violated any terms of the PPP 
program as set forth in statutes and rules.  The structure of the PPP program 
plays a limited role in this case, and admitting forgiveness-related evidence 
and argument serves only to distract from the main issue—whether Crowther 
lied to the Lender in obtaining the loan.  See United States v. Myers, 524 Fed. 
Appx. 479, 482 (11th Cir. 2013) (excluding evidence of defendant’s beliefs on 
sovereign citizenship and taxation because it did not bear on innocence, and 
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therefore risked confusing and misleading jury, even though the government 
referred to defendant’s beliefs in its case).  
The government would also be forced to spend considerable time 
explaining the nuances of the PPP forgiveness statutes and rules to overcome 
the confusing and misleading nature of forgiveness evidence, bogging the trial 
down unnecessarily.  Those dangers substantially outweigh whatever 
probative value one might assign to forgiveness evidence and argument.  Thus, 
evidence directed solely at, and argument regarding qualification for, 
forgiveness should be excluded under Rule 403.   
 
By: 
 /s/Michael V. Leeman                          
Michael V. Leeman  
Assistant United States Attorney 
Florida Bar No. 0084422 
2110 First Street, Suite 3-137 
Ft. Myers, Florida 33901 
Telephone: (239) 461-2200 
Facsimile: 
(239) 461-2219 
E-mail: Michael.leeman@usdoj.gov 
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U.S. v. Casey David Crowther   
   Case No. 2:20-cr-114-JES-MRM 
CERTIFICATE OF SERVICE 
 
I hereby certify that on March 8, 2021, 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  
 
Brian Dickerson 
brian.dickerson@fisherbroyles.com 
 
 
 
 
 
 
 
 
/s/ Michael V. Leeman                     
 
 
 
 
 
 
 
Michael V. Leeman  
 
 
 
 
 
 
 
Assistant United States Attorney 
Case 2:20-cr-00114-JES-M_M     Document 76     Filed 03/08/21     Page 8 of 8 PageID 283

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