Court filing

Motion for Judgment of Acquittal by Casey David Crowther — USA v. Crowther (Dkt. 123, M.D. Fla. No. 2:20-mj-01094, docketed in No. 2:20-cr-00114)

Filed March 25, 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	2021-03-25

U.S. District Court for the Middle District of Florida · No. 2:20-cr-00114 · Doc. 123 · 2021-03-25 · Docket on CourtListener

Full text

UNITED STATES
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION

v.
Criminal No. 2:20-cr-114-FTM-66MRM
CASEY DAVID CROWTHER
Defendant.

DEFENDANT’S RULE 29(a)
MOTION FOR JUDGMENT OF ACQUITTAL

Defendant, Casey D. Crowther (“Crowther”), through undersigned counsel,
and pursuant to Fed. R. Crim. P. 29(a), hereby files his Rule 29(a) Motion for
Judgment of Acquittal.
I.
INTRODUCTION

The evidence presented by the Government is wholly insufficient to sustain a
conviction against Crowther as to Counts I through IV of the Second Superseding
Indictment. Simply put, the (a) CARES Act, (b) the Small Business Administration
(“SBA”) interim final rules, (c) the subject loan agreement, and (d) the CARES Act
disclosures contained conflicting provisions regarding authorized purposes for
Paycheck Protection Program (“PPP”) loans. It is clear from the Government’s own
evidence that the SBA and the Government have not been defrauded and sustained
absolutely no losses or damages resulting from Crowther’s actions. Specifically, the
Government’s evidence demonstrates that after the Bank Proceeds were disbursed by
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the Bank to Target, the only occasions by which the SBA would ever disburse
Government funds to the Bank would be either where (a) the borrower sought loan
forgiveness; or (b) the lender invoked the loan’s default provisions. The undisputed
evidence demonstrates that Target Roofing and Sheet Metal, Inc. (“Target”),
Crowther’s company, did not seek forgiveness and did not default on the loan. The
undisputed evidence also shows that the Bank Proceeds were not Government funds,
but instead were the Bank’s own funds lent to Target directly by the Bank. At all times
material, the subject PPP Loan has been a performing loan to Target that – by the
Bank’s own criteria – continues to be in good standing. See DiCicco and DiIorio
testimony, supra. The Government’s evidence also demonstrates that Crowther did
absolutely nothing to defraud either the Bank or the SBA or any other Government
agency.
Next, the Government itself has acknowledged and admitted that the governing
law was conflicting and confusing regarding the permissible uses of PPP loans and has
resolved to provide clarification to lenders and borrowers. Under these circumstances,
the rule of lenity mandates a judgment of acquittal in Crowther’s favor.
Importantly, John Miller, the Government’s SBA witness, was unable in his
testimony to provide any meaningful guidance regarding what requirements are
imposed on borrowers with respect to permissible uses of loan funds and effectively
acknowledged the inconsistencies in the governing law and confusion to the public
that has been caused by such inconsistencies. Miller Tr. at pp. 68-69 (stating merely
that “if a borrower knowingly uses the proceeds for an unauthorized purpose, the
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borrower could be held legally liable”); 53 (referring to SBA interim final rule stating
that the SBA would be revising the SBA FAQs in prior interim final rules to conform
to the statute and overriding conflicting guidance in the FAQs).1 Miller also testified
that unless the borrower has defaulted on the PPP loan or otherwise sought forgiveness
of the loan, at all times material the loan remains a transaction between the bank and
the borrower. Id. at p. 67-68 (stating that absent loan forgiveness or default on a PPP
loan, there are no Government funds that go to the borrower). Kyle DiCicco and
Kristin DiIorio of Sanibel Captiva Community Bank (the “Bank”), who testified as the
Government’s witnesses, testified that absent loan forgiveness or a default on the loan,
PPP loans involve money lent from the Bank’s own funds to the borrower and do not
involve any proceeds from the SBA or the federal Government.2 DiCicco and
DiIorio further testified that the subject PPP loan between the Bank and Target
Roofing and Sheet Metal, Inc. (“Target”) was a performing loan that specifically
involved proceeds lent to Target from the Bank’s own funds (the “Bank Proceeds”),
not any SBA or Government funds.
Although the SBA has resolved to rectify inconsistencies in the governing law
that have brought about confusion to lenders and borrowers alike, at the time of trial

1 References to the transcript from Miller’s trial testimony are denoted
herein as “Miller Tr. at p. .” Copies of the relevant excerpts from Miller’s trial
testimony are attached hereto as Composite Ex. “A”.

2 At the time of filing the instant Motion, the transcripts of DiCicco’s and
DiIorio’s respective trial testimony were not available. Accordingly, the relevant
points from their trial testimony is presented herein in summary form.
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the SBA still has not done so. Thus, the Government’s own evidence demonstrates
that there was a complete lack of notice to the public with respect to the legally
permissible uses of the Bank Proceeds.
Consequently, it is impossible to hold Crowther criminally liable as to Counts I
through IV of the Superseding Indictment where the underlying law is so obviously
ambiguous. To do so would result in a clear denial of Crowther’s fundamental due
process rights. This denial of due process is particularly evident given that the
Government failed to introduce any evidence whatsoever demonstrating what is (and
what is not) a legally permissible use of the Bank Proceeds.
Thus, it is clear that the Government’s evidence is insufficient to sustain a
conviction against Crowther with respect to any of the Counts I through IV of the
Second Superseding Indictment. Accordingly, Crowther requests that this Court enter
a judgment of acquittal in his favor pursuant to Rule 29(a).
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II.
ARGUMENT

A.
Standard

Rule 29(a) states: “After the government closes its evidence or after the close of
all the evidence, the court on the defendant’s motion must enter a judgment of
acquittal of any offense for which the evidence is insufficient to sustain a conviction.”
Fed. R. Crim. P. 29(a). In United States v. Green, No. 8:12-cr-205-T-17MAP, 2016 U.S.
Dist. LEXIS 180440 at *1 (M.D. Fla. Dec. 30, 2016), the Middle District of Florida
stated:
Rule 29(a) of the Federal Rules of Criminal
Procedure requires the Court to enter "a judgment of
acquittal of any offense for which the evidence is
insufficient to sustain a conviction." Fed. R. Crim. P. 29(a).
When reviewing the Defendant's motion for judgment of
acquittal, the Court determines whether the relevant
evidence, viewed in the light most favorable to the
Government, is sufficient to support a jury's finding of
guilt. United States v. Taylor, 972 F.2d 1247, 1250 (11th Cir.
1992). "The district court must accept all reasonable
inferences tending to support the Government's
case." Id. The district court must also resolve any conflicts
in the evidence in favor of the Government. Id.

Green, 2016 U.S. Dist. LEXIS 180440 at *8.

By its express terms, Rule 29(a) includes two (2) requirements. “First, the
motion can be granted only after the prosecution has presented its case. Second, the
court must find the evidence insufficient to support a conviction.” United States v. DSD
Shipping, AS, No. 15-00102-CG, 2016 U.S. Dist. LEXIS 46413 at *18-19 (S.D. Ala.
Apr. 6, 2016) (quoting United States v. Torkington, 874 F. 2d 1441, 1444 (11th Cir.
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1989)). On a Rule 29(a) motion, the district court considers the sufficiency of the
Government’s evidence as it stood at the close of the Government’s case. United States
v. Aaron, No. 3:12-cr-170-J-34JBT, 2013 U.S. Dist. LEXIS 158336 at *6-7, n.3 (Nov.
5, 2013) (citing United States v. Moore, 504 F. 3d 1345, 1348 (11th Cir. 2007)).

Here, the evidence as it stands at the end of the Government’s case is grossly
insufficient to sustain a conviction against Crowther with respect to any of the Counts
I through IV of the Second Superseding Indictment. Accordingly, a judgment of
acquittal should be entered in Crowther’s favor.
B.
The Government’s Evidence Fails to Sustain a Conviction for Bank Fraud

The Government’s evidence cannot sustain a conviction for bank fraud; the
evidence on the record does not support an intent to defraud. A scheme to defraud
includes any plan or course of action intended to deceive or cheat someone out of
money or property by using false or fraudulent pretenses, representations, or
promises relating to a material fact. To act with intent to defraud means to
knowingly and with the specific intent to use false or fraudulent pretenses,
representations, or promises to cause loss or injury. Proving intent to deceive alone,
without the intent to cause loss or injury, is not sufficient to prove intent to defraud.
Eleventh Circuit Pattern Jury Instructions.
In United States v. Takhalov, 827 F. 3d 1307 (11th Cir. 2016), the Eleventh
Circuit stated:
For this reason, the law in the Eleventh Circuit
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makes clear that a defendant "schemes to defraud" only if
he schemes to "depriv[e] [someone] of something of value
by trick, deceit, chicane, or overreaching." But if a
defendant does not intend to harm the victim—"to
obtain, by deceptive means, something to which [the
defendant] is not entitled"—then he has not intended to
defraud the victim.

From that conclusion, a corollary follows: a
schemer who tricks someone to enter into a transaction has
not "schemed to defraud" so long as he does not intend to
harm the person he intends to trick. And this is so even if
the transaction would not have occurred but for the trick.
For if there is no intent to harm, there can only be a
scheme to deceive, but not one to defraud.

Consider the following two scenarios. In the first, a
man wants to exchange a dollar into four quarters without
going to the bank. He calls his neighbor on his cell phone
and says that his child is very ill. His neighbor runs over,
and when she arrives he asks her to make change for him.
She agrees; the quarters pass to the man; the dollar passes
to the woman; and they part ways. She later learns that the
child was just fine all along. The second scenario is
identical to the first, except that instead of giving the
woman a true dollar, he gives her a counterfeit one.

The first scenario is not wire fraud; the second one
is. Although the transaction would not have occurred but-
for the lie in the first scenario—the woman would have
remained home except for the phony sickness—the man
nevertheless did not intend to "depriv[e] [the woman] of
something of value by trick, deceit, [and so on]." But in
the second scenario he did intend to do so.

Takhalov, 827 F. 3d at 1312-1313 (citing United States v. Bradley, 644 F. 3d 1213, 1240 (11th Cir.
2011) (emphasis added).
The Government’s evidence cannot sustain a conviction for bank fraud as it
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fails to prove an intent to cause loss or injury. Target Roofing has never applied for
forgiveness and no SBA proceeds are involved. The SBA has suffered no loss or
injury. The subject PPP Loan has been a performing loan to Target that – by the
Bank’s own criteria – continues to be in good standing. There is no evidence of
any loss or injury on the record and, as such, a judgment of acquittal should be
entered on behalf of Crowther.

C.
Demonstrates That the Governing Law Was Ambiguous

All of the charges against Crowther set forth in Counts I through IV of the
Second Superseding Indictment rise and fall on whether Crowther violated the
relevant law governing the PPP loan program. Yet, the law that Crowther was
required to adhere to was nothing less than ambiguous because the language of the
CARES Act directly conflicted with the interim final rules (“IFRs”) promulgated by
the SBA. Because the IFRs conflicted with the language of the enabling statute, there
was significant confusion regarding what were and were not permissible uses of Bank
Proceeds for Target and other recipients of loan proceeds. Against this confusing
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backdrop, it is impossible to hold Crowther criminally liable under the circumstances
of the evidence introduced by the Government.
In United States v. Phifer, 909 F. 3d 372 (11th Cir. 2018), the Eleventh Circuit

stated:

The rule of lenity holds that a law must speak "in
language that is clear and definite" if it is to render
something a crime. United States v. Bass, 404 U.S. 336, 347,
92 S. Ct. 515, 30 L. Ed. 2d 488 (1971) (citation and internal
quotation marks omitted). Two principles underlie this
rule. First, "a fair warning should be given to the world in
language that the common world will understand, of what
the law intends to do if a certain line is passed. To make the
warning fair, so fair as possible the line should be
clear." Id. at 348 (citation and internal quotation marks
omitted). And second, the separation-of-powers doctrine
requires legislatures, not courts, to define crimes. See id.
Under the rule of lenity, when a criminal law is ambiguous,
we resolve doubts in favor of the defendant. Id.

Phifer, 909 F. 3d at 383-84 (vacating conviction and remanding for retrial with
instructions that if the jury concluded that ethylone did not meet at least one of the
generally accepted definition of a “positional isomer”, the rule of lenity would require
the jury to return a verdict of not guilty).
More recently, in United States v. Caniff, 955 F. 3d 1183 (11th Cir. 2020), the
Eleventh Circuit has described the rule of lenity as follows:
The rule of lenity holds that if at the end of the
interpretive
road—having
exhausted
the
applicable
semantic and contextual canons of interpretation, and thus
"seiz[ed] everything from which aid can be derived," Ocasio
v. United States, 136 S. Ct. 1423, 1434 n.8, 194 L. Ed. 2d 520
(2016) (internal quotation marks omitted)—meaningful
doubt remains about the application of a criminal statute to
a defendant's conduct, then the doubt should be resolved in
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the defendant's favor. See Scalia & Garner, supra, at 296-
302. The rule is born of the principle that the law "must
speak 'in language that is clear and definite' if it is to render
something a crime," United States v. Phifer, 909 F.3d 372,
383 (11th Cir. 2018) (quoting United States v. Bass, 404 U.S.
336, 347, 92 S. Ct. 515, 30 L. Ed. 2d 488 (1971)), and serves
the twin aims of (1) ensuring that the public is given a "fair
warning" that punishment will follow when "a certain line
is passed" and (2) preserving the "separation-of-powers
doctrine, [which] requires [that] legislatures, not courts . . .
define crimes," id.

Caniff, 955 F. 3d at 1191 (11th Cir. 2020) (holding that the rule of lenity required
resolving doubts in the defendant’s favor); see also, United States v. Pierre-Louis, No. 00-
434-CR-GOLD/SIMONTON, 2002 U.S. Dist. LEXIS 29320 at *6-16 (S.D. Fla. Mar.
22, 2002) (applying rule of lenity and granting defendant’s judgment of acquittal);
United States v. Tucor Int’l, Inc., 35 F. Supp. 2d 1172, 1185 (holding that rule of lenity
would have required dismissal of the indictment even absence the court’s conclusion
that applicable statute exempted the type of agreements at issue in the case).
Here, the rule of lenity clearly requires acquittal. The Government’s own
evidence shows that the governing law regarding permissible uses of the Bank
Proceeds was vague, ambiguous, and conflicting. Importantly, the CARES Act –
which was the enabling statute under which the PPP loan program was enacted –
specifically provides that the Bank Proceeds may be used for various purposes;
however, the Act does not require that funds shall be used only for specifically

enumerated purposes. The CARES Act states, in relevant part:

(F) Allowable uses of covered loans.—
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708

“(i) In general.— During the covered period, an eligible
recipient may, in addition to the allowable uses of a loan
made under this subsection, use the proceeds of the covered
loan for—
“(I) payroll costs;
“(II) costs related to the continuation of group health
care benefits during periods of paid sick, medical, or
family leave, and insurance premiums;
“(III) employee salaries, commissions, or similar
compensations;
“(IV) payments of interest on any mortgage
obligation (which shall not include any prepayment
of or payment of principal on a mortgage obligation);
“(V) rent (including rent under a lease agreement);
“(VI) utilities; and
“(VII) interest on any other debt obligations that
were incurred before the covered period.

CARES Act, Sec. 1102(a)(2)(F) (emphasis added).

After the CARES Act was signed into law by then-President Trump, the SBA
issued a series of IFRs addressing, inter alia, eligibility for PPP loans and how loan
proceeds that are lent directly by financial institutions to borrowers using the lender’s
own funds may be utilized. It is no secret that these IFRs attempted to change the
nature of the relevant CARES Act provisions regarding how the Bank Proceeds could
be utilized and directly conflicted with the relevant CARES Act language. On April
15, 2020, the SBA issued the following IFR stating, in relevant part:
The CARES Act was enacted to provide immediate
assistance to individuals, families, and businesses affected
by the COVID-19 emergency. Among the provisions
contained in the CARES Act are provisions authorizing
SBA to temporarily guarantee loans under a new 7(a) loan
program titled the “Paycheck Protection Program.” Loans
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709

guaranteed under the Paycheck Protection Program (PPP)
will be 100 percent guaranteed by SBA, and the full
principal amount of the loans may qualify for loan
forgiveness.

85 Fed. Reg. 20811-20812.

The SBA’s April 15, 2020 IFR stated, in relevant part:

s. What happens if PPP loan funds are misused?

If you use PPP funds for unauthorized purposes,
SBA will direct you to repay those amounts. If you
knowingly use the funds for unauthorized purposes, you
will be subject to additional liability such as charges for
fraud. If one of your shareholders, members, or partners
uses PPP funds for unauthorized purposes, SBA will have
recourse against the shareholder, member, or partner for the
unauthorized use.

85 Fed. Reg. 20814.

Although the April 15, 2020 purported to subject individuals who knowingly
misused loan proceeds to liability, the fact remains that the relevant provisions of the
CARES Act directly conflicted with the SBA IFRs as to what were considered
permissible versus mandatory uses of loan proceeds.
On June 16, 2020, the SBA issued an IFR that flatly conflicted with Sec.
1102(a)(2)(F) of the CARES Act. The June 1, 2020 SBA IFR stated, in relevant part:
The proceeds of a PPP loan are to be used for:
i. payroll costs (as defined in the Act and in 2.f);
ii. costs related to the continuation of group health care
benefits during periods of paid sick, medical, or family
leave, and insurance premiums;
iii.
mortgage interest payments (but not mortgage
prepayments or principal payments);
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710

iv. rent payments;
v. utility payments;
vi. interest payments on any other debt obligations that
were incurred before February 15, 2020; and/or
vii.
refinancing an SBA EIDL loan made between
January 31, 2020 and April 3, 2020. If you received an
EIDL loan from January 31, 3030 through April 3, 2020,
you can apply for a PPP loan. If your EIDL loan was
not used for payroll costs, it does not affect your
eligibility for a PPP loan. If your EIDL loan was used
for payroll costs, your PPP loan must be used to refinance
your EIDL loan/ Proceeds from any advance up to
$10,000 on the EIDL loan will be deducted from the loan
forgiveness amount on the PPP loan.

85 Fed. Reg. 36311 (emphasis added).

While the CARES Act identified permissive uses for the Bank Proceeds, the
June 16, 2020 IFR purported to make mandatory only limited uses of the Bank
Proceeds. Importantly, the June 16, 2020 IFR was published after Crowther had both
applied and been approved for the subject PPP loan. Consequently, when the boat
purchase and promissory note repayment occurred, the SBA had not taken the
position that the Bank Proceeds could not lawfully be used except for specified
purposes.
Importantly, the SBA acknowledged that its own IFRs were confusing,
ambiguous, and conflicted with the enabling statute. On February 5, 2021, the SBA
issued an IFR stating, in relevant part:
This rule should be interpreted consistently with the
sets of Frequently Asked Questions (FAQs) regarding the
PPP that are posted on SBA's and the Department of the
Treasury's (Treasury) websites, the consolidated interim
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711

final rule implementing updates to the Paycheck Protection
Program (86 FR 3692 (January 14, 2021)) and the interim
final rule on second draw PPP loans (86 FR 3712 (January
14, 2021)); however, the Economic Aid Act overrides any
conflicting guidance in the FAQs, and SBA will be revising the
FAQs to fully conform to the Economic Aid Act as quickly as
feasible.

86 Fed. Reg. 8284.

In other words, by the SBA’s own admission the SBA’s IFRs (in which the
FAQs were set forth) were conflicting with the enabling statute. Miller confirmed this
interpretation in his trial testimony. See Miller Tr. at p. 53 (referring to SBA interim
final rule stating that the SBA would be revising the SBA FAQs in prior interim final
rules to conform to the statute and overriding conflicting guidance in the FAQs). To
this day, the SBA has not yet clarified these admitted inconsistencies, which clearly
create confusion regarding the purposes for which loan proceeds may be used. The
Government’s evidence demonstrates that the law was unclear. Under these
circumstances, the rule of lenity clearly requires acquittal. See, e.g., Phifer, 909 F. 3d at
383-84; Caniff, 955 F. 3d at 1191.
Furthermore, as if the conflict between the CARES Act and the IFRs were not
confusing enough, the subject Loan Agreement between the Bank and Target
contained language directly conflicting with the CARES Act Disclosures that were
provided by the Bank to Target. Section 2 of the Loan Agreement states:
LOAN FORGIVENESS:
Borrower may apply to Lender for forgiveness of the
amount due on this loan in an amount equal to the sum of
the following costs incurred by Borrower during the 8-week
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712

period beginning on the date of first disbursement of this
loan:
a. Payroll costs
b. Any payment of interest on a covered mortgage
obligation (which shall not include any prepayment of or
payment of principal on a covered mortgage obligation)
c. Any payment on a covered rent obligation
d. Any covered utility payment
The amount of loan forgiveness shall be calculated (and
may be reduced) in accordance with the requirements of the
Paycheck Protection Program, including the provisions of
Section 1106 of the Coronavirus Aid, Relief, and Economic
Security Act (“CARES Act”) (P.L. 116-136). Not more
than 25% of the amount forgiven can be attributable to non-
payroll costs.

Gov’t Ex. 9 at p. 1.

By contrast, the CARES Act Disclosures that Crowther signed in connection
with the subject PPP loan states, in relevant part:
Borrower will use the proceeds of this PPP Loan solely for:
a. payroll costs;
b. costs related to the continuation of group health care
benefits during periods of paid sick, medical, or family
leave, and insurance premiums;
c. business related mortgage interest payments (but not
mortgage prepayments or principal payments);
d. rent payments;
e. utility payments;
f. interest payments on any other debt obligations that
were incurred before February 15, 2020; and/or
g.
refinancing an SBA EIDL loan made between
January 31, 2020 and April 3, 2020.

Gov’t Ex. 10, CARES Act Disclosures at pp. 1-2.
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713

Consequently, besides the conflicting language in the CARES Act and the SBA
IFRs, the CARES Act Disclosures also were in direct conflict with the language of the
Loan Agreement. Under these circumstances, there is absolutely no way that
Crowther had fair warning that any punishment would follow based upon how he
spent the Bank Proceeds or could have inferred that any particular conduct relating to
the Bank Proceeds would be criminally unlawful. Accordingly, acquittal is required
based upon the rule of lenity. See, e.g., Phifer, 909 F. 3d at 383-84; Caniff, 955 F. 3d at
1191.
D.
Judgment of Acquittal Should Be Entered in Crowther’s Favor With Respect
to Counts I and II Because the Evidence is Legally Insufficient to Prove
Falsity Beyond a Reasonable Doubt

Separately, judgment of acquittal should be entered in Crowther’s favor with
respect to Counts I and II because the Government’s evidence is legally insufficient to
prove falsity beyond a reasonable doubt. As explained supra, the Government’s
evidence demonstrates that the relevant provisions of the CARES Act directly
conflicted with the SBA’s relevant IFRs regarding what constituted legally permissible
uses of the Bank Proceeds. Because the legal requirement regarding use of the Bank
Proceeds is ambiguous and confusing, the Government is required to prove that
Crowther is guilty beyond a reasonable doubt with respect to each objectively
reasonable interpretation of the law regarding falsity. Here, the Government has
entirely failed to do so, as the evidence is insufficient to show falsity under each
objectively reasonable interpretation of the governing law. Accordingly, judgment of
acquittal must be entered in Crowther’s favor.
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714

With respect to the charge against Crowther for Bank Fraud (Count I), the
Government is required to prove the following elements beyond a reasonable doubt in
order to obtain a conviction under 18 U.S.C. § 1344:
(1) the Defendant knowingly carried out or attempted to
carry out a scheme [to defraud a financial institution] [to get
money, assets, or other property from a financial
institution]
by
using
false
or
fraudulent
pretenses,
representations, or promises about a material fact;

(2) the false or fraudulent pretenses, representations, or
promises were material;

(3) the Defendant intended to defraud [the financial
institution] [someone]; and

(4) the financial institution was federally [insured]
[chartered].

A “scheme to defraud” includes any plan or course of action
intended to deceive or cheat someone out of money or
property
by
using
false
or
fraudulent
pretenses,
representations, or promises relating to a material fact.

See 11th Cir. Pattern Criminal Jury Instructions at p. 382 (emphasis added); see also,
United States v. Brown, No. 3:18-cr-89-J-34JRK, 2019 U.S. Dist. LEXIS 203772 at *18-
19 (M.D. Fla. Nov. 25, 2019); United States v. Priester, No. 3:08-cr-291-J-32JRK, 2008
U.S. Dist. LEXIS 115238 at *15 (M.D. Fla. Nov. 25, 2008); United States v. Wooley,
No. 19-80093-CR-Rosenberg/Reinhart, 2019 U.S. Dist. LEXIS 195972 at *3 (S.D.
Fla. Sept. 30, 2019).
With respect to the charge against Crowther for False Statement to a Federally
Insured Institution (Count II), the Government is required to prove the following
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715

elements beyond a reasonable doubt in order to obtain a conviction under 18 U.S.C. §
1014:
(1) the Defendant made a false statement or report;
– or –
(when the alleged wrongdoing is overstating the value of
an asset or income)

[(1) the Defendant willfully overvalued land property or
security;]

(2) the Defendant did so knowingly and with intent to
influence an action of the institution described in the
indictment
regarding
an
application,
advance,
commitment, or loan, or a change or extension to any of
those; and

(3) the deposits of the institution were insured by the
Federal Deposit Insurance Corporation.

See 11th Cir. Pattern Criminal Jury Instructions at p. 299 (emphasis added); see also, In
re Britton-Harr, No. 20-12417-A, 2020 U.S. Dist. LEXIS 23652 at *9 (11th Cir. July 27,
2020); United States v. Barber, 591 Fed. Appx. 809, 819-20 (11th Cir. 2014); United States
v. Grant, 211 Fed. Appx. 889, 892 (11th Cir. 2006).

In United States v. Harra, 985 F. 3d 196 (3d Cir. 2021), the Third Circuit
considered the question: “When a defendant is charged with false reporting based on
an ambiguous reporting requirement, what is the prosecution’s burden at trial as to the
element of falsity?” Id. at 204. In this case, a group of bank executives were charged
with false reporting. The jury found that “the executives’ reporting constituted “false
statements” for purposes of 18 U.S.C. § 1001, 15 U.S.C. § 78m, and related statutes
and convicted Defendants on all counts.” Id. The Third District stated:
Case 2:20-cr-00114-JES-M_M Document 123 Filed 03/25/21 Page 18 of 24 PageID
716

Id.
We hold today that to prove falsity beyond a
reasonable doubt in this situation, the Government must
prove either that its interpretation of the reporting
requirement
is
the
only
objectively
reasonable
interpretation or that the defendant’s statement was also
false
under
the
alternative,
objectively
reasonable
interpretation. And because the Government here
produced insufficient evidence from which a rational jury
could find Defendants’ statements false under this rule, we
will reverse Defendants’ false statements convictions and
remand on those counts for entry of judgments of acquittal.
As for Defendants’ conspiracy and securities fraud
convictions, however, which were charged in the alternative
on an independent theory of liability, we will vacate and
remand for trial.

Here, the Government has not proven that either (a) its interpretation of the

authorized uses of the subject Bank Proceeds is the only objectively reasonable
interpretation, or (b) Crowther’s use of the Bank Proceeds was also false under
alternative, objectively reasonable interpretations. Specifically, the Government has
not proven falsity with respect to Counts I and II in reference to the various iterations
of how the Bank Proceeds may be used, as set forth in (a) the CARES Act, (b) the
IFRs, (c) the Loan Agreement, and (d) the CARES Act Disclosures. Having failed to
do so, the Government also has failed to prove the element of falsity beyond a
reasonable doubt, which is a prerequisite to any conviction with respect to Counts I
and II.
This is particularly true given that the Government’s own SBA witness testified
regarding the ambiguity and confusion with respect to the inconsistencies between the
CARES Act and the relevant IFRs. See Miller Tr. at p. 53 (referring to SBA interim
Case 2:20-cr-00114-JES-M_M Document 123 Filed 03/25/21 Page 19 of 24 PageID
717

final rule stating that the SBA would be revising the SBA FAQs in prior interim final
rules to conform to the statute and overriding conflicting guidance in the FAQs).
Accordingly, based upon the rule set forth in Harra judgment of acquittal should
be entered in Crowther’s favor.
E.
The Government’s Evidence is Insufficient to Sustain a Conviction Against
Crowther for Counts III and IV

The Government’s own evidence also fails to prove a prima facie case against
Crowther for Illegal Monetary Transaction (Counts III and IV). The Government is
required to prove the following elements in order to sustain a conviction against
Crowther for Illegal Monetary Transaction:
(1) the Defendant knowingly engaged or attempted to
engage in a monetary transaction;

(2) the Defendant knew the transaction involved property
or funds that were the proceeds of some criminal
activity;

(3) the property had a value of more than $10,000;

(4) the property was in fact proceeds of [describe the
specified unlawful activity alleged in the indictment];
and

(5) the transaction took place in [the United States][in the
special maritime and territorial jurisdiction of the United
States] [outside the United States but the Defendant was a
United States person as defined by 18 U.S.C. § 3077
(excluding section (2)(D))].

See 11th Cir. Pattern Criminal Jury Instructions at p. 494.
Case 2:20-cr-00114-JES-M_M Document 123 Filed 03/25/21 Page 20 of 24 PageID
718

The Government’s case has always relied on Crowther’s alleged
misrepresentations to the Bank’s personnel regarding the stated purpose of the wire
transfers for the boat purchase and Steve Adkins promissory note repayment
transactions. DiCicco and DiIorio testified, however, that the Bank does not care
about the purpose of the PPP loan, as reflected in the loan documents, or the stated
reasons for any wire transfers. Instead, Crowther’s stated reasons to the Bank for the
wire transfers were just as unimportant as the content of the memo line of a personal
check, so far as the Bank was concerned. See DiCicco and DiIorio trial testimony.
Moreover, because Target has neither sought loan forgiveness nor defaulted on
the PPP loan, there was no legal requirement that Target was required to use the Bank
Proceeds solely for PPP-related purposes. In other words, at all times material the
transaction remained a loan between the Bank, as the lender, and Target, as the
borrower.
Accordingly, the Government’s evidence is insufficient as to the second legal
element (i.e., that Crowther knew the transaction involved property or funds that were
the proceeds of some criminal activity) and the fourth legal element (i.e., that the
proceeds were in fact proceeds of unlawful activities). As such, judgment of acquittal
should be entered in Crowther’s favor with respect to Counts III and IV of the Second
Superseding Indictment.
F.
The Government’s Evidence Contradicts That Crowther Knowingly
Engaged in Any Criminal Conduct
Case 2:20-cr-00114-JES-M_M Document 123 Filed 03/25/21 Page 21 of 24 PageID
719

Finally, the Government’s evidence is insufficient to sustain a conviction with
respect to any charges set forth in Counts I through IV of the Second Superseding
Indictment because the evidence demonstrates that Crowther did not knowingly
engage in any criminal conduct. As noted supra, all of the charges set forth in Counts
I through IV require that Crowther knowingly engage in various prohibited acts. See
11th Cir. Pattern Criminal Jury Instructions at p. 382 (requiring, inter alia, that the
Government prove that Crowther knowingly carried out or attempted to carry out
a scheme [to defraud a financial institution] [to get money, assets, or other property
from a financial institution] by using false or fraudulent pretenses, representations, or
promises about a material fact, in order to prove Bank Fraud in violation of 18 U.S.C.
§ 1344); 299 (requiring, inter alia, that the Government prove that Crowther knowingly
and with intent to influence an action of the institution described in the indictment
regarding an application, advance, commitment, or loan, or a change or extension to
any of those, in order to prove False Statement to a Federally Insured Institution in
violation of 18 U.S.C. § 1014); and 494 (requiring, inter alia, that the Government
prove that Crowther knowingly engaged or attempted to engage in a monetary
transaction, in order to prove Illegal Monetary Transaction in violation of 18 U.S.C.
§ 1957). DiIorio, however, testified that the wire transfer reflecting the promissory
note repayment to Adkins would be considered an authorized use of the Bank
Proceeds because the wire was for bonuses.
Case 2:20-cr-00114-JES-M_M Document 123 Filed 03/25/21 Page 22 of 24 PageID
720

Moreover, based upon the testimony of DiCicco, there appears to be no
evidence that any of the subject loan documents contained any false statements or
misrepresentations. Accordingly, the evidence is insufficient to prove the elements
of the offenses charged in Counts I through IV of the Second Superseding
Indictment. Judgment of acquittal therefore must be entered in Crowther’s favor.
III.
CONCLUSION

Based on the foregoing, the Government’s evidence is clearly insufficient to
sustain a conviction with respect to Counts I through IV of the Second Superseding
Indictment. Accordingly, Defendant, Casey David Crowther respectfully requests
that this Court (a) grant this Motion in all respects; (b) enter a judgment of acquittal in
Crowther’s favor with respect to Counts I through IV of the Second Superseding
Indictment; and (c) enter such other and further relief this Court deems just and proper.
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 123 Filed 03/25/21 Page 23 of 24 PageID
721

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 123 Filed 03/25/21 Page 24 of 24 PageID
722

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Motion for Judgment of Acquittal by Casey David Crowther — USA v. Crowther (Dkt. 123, M.D. Fla. No. 2:20-mj-01094, docketed in No. 2:20-cr-00114)

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