Court filing

Motion for Miscellaneous Relief, specifically Pre-Trial Ruling — USA v. Crowther (Dkt. 98, M.D. Fla. No. 2:20-mj-01094, docketed in No. 2:20-cr-00114)

Filed March 16, 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	2021-03-16

U.S. District Court for the Middle District of Florida · No. 2:20-cr-00114 · Doc. 98 · 2021-03-16 · Docket on CourtListener

Full text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION

UNITED STATES OF AMERICA,
:

Plaintiff,

:
CASE NO. 2:20-CR-114-JES-MRM

:
CASEY DAVID CROWTHER,
:

Defendant.

:
_____________________________

CASEY CROWTHER'S MOTION FOR PRE-TRIAL RULING
ON ADMISSIBILITY OF UNITED STATES SMALL BUSINESS
ADMINISTRATION (SBA) VIDEOS AND FACT SHEETS

Casey Crowther seeks a pre-trial ruling on the admissibility of SBA evidence he
will offer at trial. After extensive conferral with the government, the parties have been
unable to reach agreement on the admissibility of the SBA publications and the
government does not stipulate to their authenticity. At the same time, the defense is
attempting to secure the presence of an SBA witness (a process complicated by the
closure of SBA’s South Florida office due to COVID-19 precautions) and as of this
filing, the government has not yet been able to secure the presence of the witness at
trial. The undersigned spoke to the SBA general counsel on March 12, 2021 regarding
the subpoena; however, as of the filing hereof the undersigned has yet to hear back
from the SBA. In light of how the SBA publications may shape trial presentation and
logistics for the parties, the defense believes seeking a ruling before the start of trial is
Case 2:20-cr-00114-JES-M_M Document 98 Filed 03/16/21 Page 1 of 10 PageID 544

the efficient and appropriate course of action. A ruling in advance will avoid what
might otherwise be substantial mid-trial arguments on these matters.
The evidence at issue includes tutorial videos created by the SBA, performed by
high-level SBA employees, and maintained on SBA websites for the specific purpose
of educating small business owners about a loan program administered by the
SBA. These videos were specifically sponsored by the SBA for educational and
business purposes. This is the exact business mission of the organization and the SBA
has created hundreds of these videos as a regular part of its business for various loan
programs, including the Paycheck Protection Program (“PPP”) since its inception in
April 2020. The relevance is clear: the SBA’s program tutorials, explanations, and
guidelines – explained in the agency’s own words and from the mouths of its own
officials – contradict the theories and characterizations argued by the government.
A.
The SBA Videos and Fact Sheets are Authentic

The government has declined to stipulate to the authenticity of SBA videos
hosted on the SBA’s official YouTube channels and Fact Sheets published by the SBA
on the U.S. Department of the Treasury government website. All of these materials
are authentic, and indeed are self-authenticating official publications under Federal
Rule of Evidence 902(5).
The “About” section of each SBA YouTube Channel makes their official status
patent. The SBA South Florida District Office describes itself as “The official YouTube
Channel of the South Florida District of the U.S. Small Business Administration
(SBA). Empowering small businesses to start, grow, expand or recover” and provides
Case 2:20-cr-00114-JES-M_M Document 98 Filed 03/16/21 Page 2 of 10 PageID 545

links
to
the
SBA’s
Privacy
Policy
and
Comment
Policy.
https://www.youtube.com/c/SBASouthFloridaDistrictOffice/about. Likewise, the
Small Business Administration’s YouTube Channel explains that it is official: “The
official YouTube Channel of the U.S. Small Business Administration (SBA).
Empowering
small
businesses
to
start,
grow,
expand,
or
recover.”
https://www.youtube.com/channel/UCxXd9AWfNNaNipc XNmFuCAw/about.
It also links to the SBA Privacy Policy and Comment Policy:

Id. Furthermore, the SBA Fact Sheets and guidance are published directly on the
U.S. Department of the Treasury’s official government website.1 See e.g.
https://home.treasury.gov/policy-issues/cares/assistance-for-small-businesses and Exhibit A.
Court’s regularly take judicial notice of such material on government websites.
See, e.g., United States v. Iverson, 818 F.3d 1015, 1022 (10th Cir. 2016) (noting that

1 The U.S. Department of Treasury worked in conjunction with the SBA to implement the Interim
Final Rules and administer the PPP.
Case 2:20-cr-00114-JES-M_M Document 98 Filed 03/16/21 Page 3 of 10 PageID 546

“courts have considered the FDIC website so reliable that they have taken judicial
notice of information on it”) (citing Laborers’ Pension Fund v. Blackmore Sewer Constr.,
Inc., 298 F.3d 600, 607 (7th Cir. 2002)); Lawrence v. Fed. Home Loan Mortg. Corp., No.
A-13-CV-913 LY, 2015 U.S. Dist. LEXIS 40012, at *34 n.6 (W.D. Tex. Mar. 30, 2015)
(taking judicial notice of federal government’s agreement with national bank as posted
on government website); Flores v. City of Baldwin Park, No. CV 14-9290-MWF(JCx),
2015 U.S. Dist. LEXIS 22149, at *4–5 (C.D. Cal. Feb. 23, 2015) (taking judicial notice
of material posted on municipal police department website); FAS Capital, LLC v. Carr,
7 F. Supp. 3d 1259, 1266–67 (N.D. Ga. 2014) (taking judicial notice of information
posted on FDIC’s website); Curcio v. Wachovia Mortg. Corp., No. 09-CV-1498-IEG
(NLS), 2009 WL 3320499, at *2, *3–4 (S.D. Cal. Oct. 14, 2009) (taking judicial notice
of printouts from the FDIC’s website).
The government has not explained its grounds for declining to stipulate to
authenticity of these government-published materials. And no grounds for objecting
exist. The SBA YouTube Channels and Fact Sheets are obviously authentic and self-
authenticating under Rule 902(5).
B.
The SBA Videos and Fact Sheets are Not Hearsay Because They are
Statements by the Party-Opponent United States

The SBA’s statements on its official YouTube Channel and its Fact Sheets are
not hearsay because under Rule 801(d)(2) they are admissions by the party-opponent.
“It is a widely accepted rule that admissions of a party-opponent under Rule 801(d)(2)
are accorded generous treatment in determinations of admissibility.” Long Island
Case 2:20-cr-00114-JES-M_M Document 98 Filed 03/16/21 Page 4 of 10 PageID 547

Savings Bank, FSB v. United States, 63 Fed. Cl. 157, 164 (Fed. Cl. 2004) (quotation
omitted) (admitting statements by Federal Deposit Insurance Corporation and Office
of Thrift Supervision employees against party-opponent United States in civil case).
“[T]he Federal Rules clearly contemplate that the federal government is a party-
opponent of the defendant in criminal cases.” United States v. Kattar, 840 F.2d 118, 130
(1st Cir. 1988) (citing United States v. Morgan, 581 F.2d 933, 937 n.10 (D.C. Cir. 1978)).
“The party-opponent is the United States, not a particular agency.” Long Island Savings
Bank, 63 Fed. Cl. at 165.
As another court explained, “[I]t makes no sense to hold that the Department
of Justice, which essentially is a law office, alone comprises the United States.” United
States v. American Tel. & Tel. Co., 498 F. Supp. 353, 357 (D.D.C. 1980). That conclusion
is consistent with the statutorily mandated role of DOJ. See 28 U.S.C. § 519 (stating
that “[e]xcept as otherwise authorized by law, the Attorney General shall supervise all
litigation to which the United States, an agency, or officer thereof is a party, and shall
direct all United States attorneys . . .”). For example, in American Tel. & Tel. Co., the
district court admitted “statements made by officials of Executive Branch agencies of
the United States government” pursuant to Rule 801(d)(2)(D) in an anti-trust case.
498 F. Supp. 353 at 356.2 That court elaborated:
A second and related reason for rejecting the government’s
position is that its arguments would apply with equal force
to any large organization with many individuals speaking

2 Statements made by DOJ officials were also admissible under Rule 801(d)(2);
however, the government did not contest those statements. Id. at 356 n.5.
Case 2:20-cr-00114-JES-M_M Document 98 Filed 03/16/21 Page 5 of 10 PageID 548

and acting on its behalf. Were the Court to accept the
government’s reasoning, all such organizations would
effectively have to be exempted from the purview of the rule
on party-opponent admissions. The unambiguous language
of Rule 801(d)(2) clearly does not contemplate such a result.
Id. at 358.
In a criminal case, the government is (supposedly) seeking to vindicate the laws
of the United States and the public interest in enforcing those laws. In particular, it
accuses Casey Crowther of committing fraud in connection with Target Roofing’s PPP
loan. Though the SBA does not provide PPP loans (private lenders do), it is the
government executive branch agency that administers the PPP and issued the interim
final rules relating to the program. As such, the SBA is authorized to educate the public
on PPP matters. In a prosecution where the central issues concern interpretation of the
interim final rules established by the SBA, the SBA’s statements – whether in the fact
sheets it publishes or in the videos it publishes on its official YouTube channels – must
be considered admissions of the party-opponent United States. As authorized and
official statements by the SBA, they are not hearsay under four (4) subsections of the
rule: (1) they are made by the party opponent in an individual or representative
capacity (see Rule 801(d)(2)(A)); (2) the party-opponent has manifested that it adopted
or believed the statements to be true (see Rule 801(d)(2)(B)); (3) they were made by a
person authorized by the party opponent to make a statement on the subject (see Rule
801(d)(2)(C)); and (4) they were made by the party-opponent’s agents or employees on
matters within the scope of that relationship while it existed (see Rule 801(d)(2)(D)).
Case 2:20-cr-00114-JES-M_M Document 98 Filed 03/16/21 Page 6 of 10 PageID 549

C.
Videos from the SBA Official YouTube Channels and SBA Fact Sheets are
Also Admissible Pursuant to the Hearsay Exception for Records of a
Regularly Conducted Activity

In addition to their status as statements by a party-opponent, publications on
the SBA’s official YouTube channels and the SBA fact sheets posted on the U.S.
Department of the Treasury’s official government website fall under Rule 803(6), the
hearsay exception for records of a regularly conducted activity.
First, the publications are records of acts under Rule 803(6). Specifically, the
videos are recordings of content generated by the SBA for the purpose of posting same
to the SBA’s YouTube page. Likewise, its fact sheets are created for the purpose of
publishing them via the U.S. Department of the Treasury’s website.
Next, with respect to Rule 803(6)(A) (i.e., the requirement that the record was
made at or near the time by—or from information transmitted by—someone with
knowledge), the videos and fact sheets were made at or near the time by SBA
representatives who oversaw production and creation of the same.
With respect to Rule 803(6)(B) (i.e., the requirement that the record was kept in
the course of a regularly conducted activity of a business, organization, occupation, or
calling, whether or not for profit), the videos and fact sheets were created specifically
in the course of the SBA’s regular business activities of creating, producing, and
distributing information regarding SBA loan programs to the general public. The
production, transmission, and distribution of these materials were part of the SBA’s
regularly conducted business activities.
Case 2:20-cr-00114-JES-M_M Document 98 Filed 03/16/21 Page 7 of 10 PageID 550

With respect to Rule 803(6)(E) (i.e., the requirement that making the record was
a regular practice of that activity), the videos were themselves records that were part
of the SBA’s regular practice of creating and uploading content onto the SBA
YouTube page for viewing by the general public and the fact sheets were part of SBA’s
regular practice of creating and uploading content to the SBA and the U.S.
Department of Treasury websites.
With respect to Rule 803(6)(D) (i.e., all these conditions are shown by the
testimony of the custodian or another qualified witness, or by a certification that
complies with Rule 902(11) or (12) or with a statute permitting certification), the SBA’s
records custodian would testify to all of the foregoing, including that the publications
were kept in the course of the SBA’s regularly conducted activities. See, e.g., United
States v. Hasan, 742 F.3d 104, 133-34 (4th Cir. 2014) (affirming trial court’s ruling that
“YouTube videos were self-authenticating under Federal Rule of Evidence 902(11),
and thus that they were admissible as business records.”).
Finally, based on the testimony of the SBA’s records custodian, the government
will be unable to demonstrate that the source of information or the method or
circumstances of preparation indicate a lack of trustworthiness. See Rule
803(6)(E). All of these materials were prepared by the SBA and its employees, in the
normal course, for SBA’s typical purposes, and published on SBA’s usual platforms.
Conclusion

The videos on the SBA’s official YouTube channels and the fact sheets on its
government website are indisputably authentic. They are admissible at trial as
Case 2:20-cr-00114-JES-M_M Document 98 Filed 03/16/21 Page 8 of 10 PageID 551

statements by party-opponent United States, and also as records of regularly
conducted activity. In light of the impact on trial presentation and logistics, Mr.
Crowther respectfully requests that this motion be heard prior to the start of trial.

Accordingly, Casey David Crowther respectfully requests this Court (a) grant
the instant Motion in all respects; (b) rule that the SBA materials are admissible; and
(c) enter such other and further relief this Court deems just and proper.
Certification Regarding Conferral

The undersigned have conferred with opposing counsel and the undersigned
have been unable to resolve the motion by agreement. The undersigned further certify
that this motion concerns a matter not covered by the Magistrate Judge’s Amended
Pretrial Criminal Scheduling Order.
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

2390 Tamiami Trail North, Suite 100

Naples, Florida 34103

Phone: (202) 906-9572

Fax: (239) 236-1360

Case 2:20-cr-00114-JES-M_M Document 98 Filed 03/16/21 Page 9 of 10 PageID 552

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.

Case 2:20-cr-00114-JES-M_M Document 98 Filed 03/16/21 Page 10 of 10 PageID 553

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Motion for Miscellaneous Relief, specifically Pre-Trial Ruling — USA v. Crowther (Dkt. 98, M.D. Fla. No. 2:20-mj-01094, docketed in No. 2:20-cr-00114)

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