Order on Motion for Judgment of Acquittal — USA v. Crowther (Dkt. 169-2, 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-JES-MRM · Doc. 155 · 2021-07-02 · Docket on CourtListener

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FUNITED STATES DISTRICT COURT 
MIDDLE DISTRICT OF FLORIDA 
FORT MYERS DIVISION 
 
UNITED STATES OF AMERICA 
 
 
VS. 
CASE NO: 2:20-cr-114-JES-MRM 
CASEY DAVID CROWTHER 
 
 
OPINION AND ORDER 
This matter comes before the Court on defendant Casey David 
Crowther’s 
Renewed 
Motion 
for 
Judgment 
of 
Acquittal 
or 
Alternatively for a New Trial (Doc. #140) filed on April 9, 2021.  
The government filed a Response in Opposition (Doc. #146) on April 
23, 2021.  For the reasons set forth below, the motion is denied. 
 
                      I. 
Defendant seeks a post-verdict judgment of acquittal pursuant 
to Rule 29(c) of the Federal Rules of Criminal Procedure.  In 
considering a motion for entry of a judgment of acquittal, the 
Court 
must view the evidence in the light most favorable to 
the government, and determine whether a reasonable jury 
could have found the defendant guilty beyond a 
reasonable doubt. The prosecution need not rebut all 
reasonable hypotheses other than guilt. The jury is free 
to choose between or among the conclusions to be drawn 
from the evidence presented at trial, and the district 
court must accept all reasonable inferences and 
credibility determinations made by the jury.  
 
United States v. Miranda, 425 F.3d 953, 959 (11th Cir. 2005) 
(citation omitted).  A jury’s verdict may not be overturned “if 
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any reasonable construction of the evidence would have allowed the 
jury to find the defendant guilty beyond a reasonable doubt.”  
United States v. Estepa, 998 F.3d 898, 2021 WL 2098930, *7 (11th 
Cir. 2021) (quoting United States v. Capers, 708 F.3d 1286, 1297 
(11th Cir. 2013)). 
Following a jury trial, defendant was convicted of one count 
of bank fraud in violation of 18 U.S.C. § 1344, one count of making 
a false statement to a lending institution in violation of 18 
U.S.C. § 1014, and two counts of conducting illegal monetary 
transactions in violation of 18 U.S.C. § 1957.  The charges relate 
to defendant’s applying for and receiving a federally guaranteed 
bank loan under the Paycheck Protection Program (PPP) of the 
Coronavirus Aid, Relief, and Economic Security (CARES) Act, Pub. 
L. No. 116-136, 134 Stat. 281 (2020), and his subsequent wire 
transfers for non-business expenditures.   
Defendant now raises several arguments as to why a judgment 
of acquittal should be granted (Doc. #140, pp. 1-2), the majority 
of which involve the CARES Act.  Defendant argues for acquittal 
on all four counts because (1) he and his company complied with 
the requirements of the CARES Act, (2) the CARES Act and the 
related interpreting rules are ambiguous, and therefore the rule 
of lenity applies, and (3) the ambiguity means defendant could not 
knowingly engage in criminal conduct.  (Doc. #140, pp. 14-21, 27-
28.)  Similarly, defendant argues that the bank fraud and false 
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statement convictions should be overturned because the ambiguous 
and confusing nature of the CARES Act and related requirements 
dictate that the government cannot prove the falsity of defendant’s 
representations.  (Id. p. 21-24.)   
None of these arguments are persuasive.  Defendant was not 
charged with violating the CARES Act.  The four offenses relate 
to defendant’s misrepresentations to secure a loan, and then the 
use of the loan proceeds for various monetary transactions.  While 
the CARES Act and PPP were obviously relevant to the facts of the 
case, defendant’s reliance on them for acquittal is misplaced.   
Defendant also argues criminal liability is precluded by the 
Eleventh Circuit’s decision in United States v. Takhalov, 827 F.3d 
1307 (11th Cir. 2016).  (Doc. #140, pp. 24-26.)  In Takhalov, the 
Eleventh Circuit held that “[a] jury cannot convict a defendant of 
wire fraud . . . based on ‘misrepresentations amounting only to a 
deceit.’”  Id. at 1314 (quoting United States v. Shellef, 507 F.3d 
82, 108 (2d Cir. 2007)).  The bank fraud pattern jury instruction 
incorporates 
this 
principle 
and 
includes 
the 
following 
instruction: 
To act with “intent to defraud” means to act 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 Instruction O52.   
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Defendant argues that Takhalov precludes liability in this 
case because (1) he gave the bank exactly what it bargained for, 
i.e., a promissory note on a performing loan for which the first 
payment has not yet come due, and (2) the bank does not consider 
itself a victim.  (Doc. #140, p. 25.)  According to defendant, his 
“actions can only be characterized as merely deceitful but not 
fraudulent.”  (Id. pp. 25-26.)  The Court disagrees. 
 
Takhalov makes clear that a defendant does not intend to 
defraud a victim unless he intends to harm the victim, which the 
court defines as “to obtain, by deceptive means, something to which 
[the defendant] is not entitled.”  Takhalov, 827 F.3d at 1313 
(quoting United States v. Bradley, 644 F.3d 1213, 1240 (11th Cir. 
2011)).  As the government argues in response (Doc. #146, pp. 17-
18), evidence was presented at trial that defendant used false and 
fraudulent representations to obtain a low interest loan from the 
bank he otherwise would not have been able to obtain, that 
defendant used the loan for personal expenditures, and that 
defendant attempted to hide his actions.  Thus, there was 
sufficient evidence from which a jury could find defendant acted 
with intent to defraud.  See Bradley, 644 F.3d at 1239 (“A jury 
may infer an intent to defraud from the defendant’s conduct.”); 
see also Estepa, 998 F.3d 898, 2021 WL 2098930, *10-11 (finding 
jury could conclude defendants had requisite intent to defraud 
where, viewing the evidence in the light most favorable to the 
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government, the defendants “engaged in a pervasive pattern of 
deceit before, during, and after” their misrepresentations).  The 
fact that the bank may not consider itself a victim or has not 
suffered a financial loss is not dispositive.  See Estepa, 998 
F.3d 898, 2021 WL 2098930, *9; United States v. Maxwell, 579 F.3d 
1282, 1302 (11th Cir. 2009). 
Finally, defendant argues the evidence was insufficient to 
prove a prima facie case for the two illegal monetary transaction 
counts (Doc. #140, pp. 26-27), which in this case required proof 
beyond a reasonable doubt of the following five elements:   
(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 or more than $10,000; 
 
(4) the property was in fact proceeds of bank fraud as 
alleged in the indictment; and 
 
(5) the transaction took place in the United States. 
 
(Doc. #126, p. 17.)  Defendant argues there was insufficient 
evidence of the second and fourth elements because (1) the bank 
did not rely on the purpose of defendant’s wire transfers and (2) 
there was no legal requirement that defendant’s company use the 
loan proceeds solely for PPP-related purposes.  (Doc. #140, pp. 
26-27.)  The Court disagrees. 
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Evidence was presented at trial from which a reasonable jury 
could find defendant engaged in bank fraud when he obtained the 
loan in question.  Defendant instructed the bank to deposit the 
funds in a separate account, and then requested the bank make wire 
transfers from that account.  Defendant also misrepresented the 
purposes of the wire transfers to suggest they were business-
related expenditures.  Accordingly, the jury could reasonably find 
that the funds used in the wire transfers were the proceeds of 
bank fraud and that defendant knew it.  Thus, there was sufficient 
evidence to prove the two disputed elements. 
Having applied the aforementioned legal principles to the 
evidence presented in this case, the Court finds that the 
government met its burden as to all of the elements of each count.  
A reasonable jury could have found defendant guilty beyond a 
reasonable doubt as to the four offenses, and therefore the Court 
denies defendant’s request for judgment of acquittal. 
                           II. 
As an alternative to judgment of acquittal, defendant argues 
a new trial should be granted in the interest of justice under 
Federal Rule of Criminal Procedure 33.  (Doc. #140, pp. 14, 28-
29.)  “Upon the defendant’s motion, the court may vacate any 
judgment and grant a new trial if the interest of justice so 
requires.”  Fed. R. Crim. P. 33(a).  Unlike a Rule 29 motion, Rule 
33 allows the district court to weigh the evidence and consider 
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the credibility of witnesses, although to grant such a motion 
“[t]he evidence must preponderate heavily against the verdict, 
such that it would be a miscarriage of justice to let the verdict 
stand.”  Butcher v. United States, 368 F.3d 1290, 1297 (11th Cir. 
2004).   
Defendant seeks a new trial due to the following alleged 
errors: (1) the admission of the government’s summary witness’ 
exhibits, and (2) the admission of evidence related to thirty-nine 
apparently fake employees of defendant’s company.  (Doc. #140, pp. 
28-29.)  The Court finds neither ground sufficient to merit relief 
under Rule 33.   
Regarding the summary witness issue, defendant argues the 
summary exhibits were incomplete, as admitted by the government’s 
witness during cross-examination, and therefore were not accurate.  
(Id. p. 28.)  However, this is a mischaracterization of the 
testimony.  The government witness admitted that she did not 
include information regarding a specific account in her summary 
prior to a certain date, but she did not testify that the summary 
was inaccurate.  (Doc. #132, pp. 17-18.)  Furthermore, as the 
government notes in its response (Doc. #146, p. 21), the complete 
account information was provided separately as an individual 
exhibit (Doc. #136-116, pp. 1297-1369).  Accordingly, the Court 
rejects defendant’s argument for new trial on this basis. 
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As to the admission of evidence relating to the purportedly 
fake employees, the Court denied a pretrial motion in limine to 
exclude the evidence, finding it provided intrinsic evidence 
relevant to the charges and was not unduly prejudicial.  (Doc. 
#101, p. 3.)  While defendant again argues otherwise in his motion, 
he raises no new argument to convince the Court admission of the 
evidence was erroneous.  The fake employee evidence supported the 
government’s theory that defendant engaged in a scheme to defraud 
the bank and acted with intent to do so, and therefore was 
relevant.  The Court disagrees that its admission was unduly 
prejudicial, and therefore denies defendant’s argument for new 
trial. 
The undersigned presided over the trial in this case and has 
reviewed the trial transcripts (Docs. #129-34, 141-44).  The Court 
finds that defendant has not established a basis for a new trial. 
Accordingly, it is hereby 
ORDERED: 
Defendant’s Renewed Motion for Judgment of Acquittal or 
Alternatively for a New Trial (Doc. #140) is DENIED. 
DONE and ORDERED at Fort Myers, Florida, this   23rd   day 
of June, 2021. 
 
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Copies: 
Counsel of Record 
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