MOTION for Miscellaneous Relief, specifically Release Pending Appeal (Corrected Motion) by… — USA v. Crowther (Dkt. 175)

Record facts

U.S. District Court for the Middle District of Florida · No. 2:20-cr-00114 · Doc. 175 · 2021-07-14 · Docket on CourtListener

Summary

A corrected motion for release pending appeal filed by defendant-appellant Casey David Crowther in United States v. Crowther, Case No. 2:20-cr-114-JES-MRM, in the U.S. District Court for the Middle District of Florida, on July 14, 2021 as Document 175. Appellate counsel William Mallory Kent brings it under 18 U.S.C. § 3143(b)(1), noting a 37-month sentence and a self-surrender date of July 30, 2021. The motion argues the appeal presents a question of first impression on proving legal falsity under the bank fraud and false statement statutes for a loan governed by the Paycheck Protection Program. It also argues Crowther is not a flight risk or danger because he has remained on release conditions, and states that the government opposes the motion. Exhibit A is the judgment and Exhibit B a renewed motion for judgment of acquittal.

Summary drafted by a model from the document's text below and checked by script against that text before publication. It is a navigation aid, not a reading of what the document proves. Where AI is used

Full text

UNITED 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
_________________________________/
APPELLANT CROWTHER’S CORRECTED MOTION
FOR RELEASE PENDING APPEAL1
TIME SENSITIVE - DEFENDANT REQUIRED TO SURRENDER
FOR SERVICE OF SENTENCE JULY 30, 2021
Casey David Crowther (Crowther), the Defendant-Appellant herein,  by his
undersigned appellate counsel, William Mallory Kent, hereby moves for his release
on conditions pending appeal, pursuant to Title 18, U.S.C. § 3143(b)(1).  
FACTS AND PROCEDURAL HISTORY
Crowther proceeded to trial on counts one, two, three and four of a second
superseding indictment charging Crowther in count one with bank fraud in violation
of 18 U.S. C. § 1344 and in count two with false statement to a financial institution
in violation of 18 U.S.C. § 1014.  Counts three and four charged money laundering
in violation of 18 U.S.C. § 1957 (deriving from the conduct in counts one and two,
1 Pursuant to the Local Rule, counsel has requested the position of the
Government on this motion and Assistant United States Attorney Trent Reichling has
responded that the Government opposes this request.
Case 2:20-cr-00114-JES-M_M     Document 175     Filed 07/14/21     Page 1 of 8 PageID 4191

all of which derived from an Small Business Administration (SBA) loan).  Prior to
trial Crowther pled guilty to counts five and six, which charged bank fraud and false
statements in connection with an unrelated residential mortgage loan.2 Crowther was
convicted of all counts and sentenced by this court to a total term of imprisonment of
37 months concurrent on all counts.  A copy of the judgment is annexed hereto as
Exhibit A. 
Crowther had been released on conditions during the pendency of the
indictment and the Court allowed Crowther to remain free on conditions after the
verdict and sentencing with a self-surrender date of July 30, 2021.
Crowther made a motion for judgment of acquittal at the close of the evidence
and filed a written motion for new trial after the verdict (Doc. 140), both of which
motions were denied by this Court. (Doc. 169-2) A copy of the Defendant’s Renewed
Motion for Judgment of Acquittal or Alternatively for New Trial is annexed hereto
as Exhibit B. 
Crowther retained appellate counsel and filed a timely notice of appeal.  By this
motion Crowther is requesting the Court permit Crowther to remain free on
conditions of release pending the appeal.
2 Count seven of the second superseding indictment was dismissed on motion
of the Government.
2
Case 2:20-cr-00114-JES-M_M     Document 175     Filed 07/14/21     Page 2 of 8 PageID 4192

RELEASE PENDING APPEAL
Release pending appeal by the defendant is governed by 18 U.S.C. §
3143(b)(1), which provides, in pertinent part:
Except as provided in paragraph (2), the judicial officer shall order that
a person who has been found guilty of an offense and sentenced to a
term of imprisonment, and who has filed an appeal or a petition for a
writ of certiorari, be detained, unless the judicial officer finds– 
(A) by clear and convincing evidence that the person is not likely to flee
or pose a danger to the safety of any other person or the community if
released under section 3142(b) or (c) of this title; and
(B) that the appeal is not for the purpose of delay and raises a substantial
question of law or fact likely to result in– 
(I) reversal,
(ii) an order for a new trial,
(iii) a sentence that does not include a term of imprisonment, or
(iv) a reduced sentence to a term of imprisonment less than the total of
the time already served plus the expected duration of the appeal process.
If the judicial officer makes such findings, such judicial officer shall
order the release of the person in accordance with section 3142(b) or (c)
of this title . . . .
18 U.S.C. § 3143(b)(1). 
3
Case 2:20-cr-00114-JES-M_M     Document 175     Filed 07/14/21     Page 3 of 8 PageID 4193

THIS APPEAL PRESENTS A SUBSTANTIAL QUESTION OF LAW
In United States v. Giancola, 754 F.2d 898, 900-01 (11th Cir. 1985), the United
States Court of Appeals for the Eleventh Circuit adopted the interpretation of this
portion of the statute previously made the Third Circuit in United States v. Miller, 753
F.2d 19 (3d Cir. 1985). The Eleventh Circuit observed that in Miller, the Third Circuit
had held that the proper interpretation of the “substantial question” provision was that
it required “first, that the appeal raise a substantial question of law or fact, and
second, that ‘if that substantial question is determined favorably to the defendant on
appeal, that decision is likely to result in reversal or an order for a new trial of all
counts on which imprisonment has been imposed.’” Giancola, 754 F.2d at 900
(quoting Miller, 753 F.2d at 23-24).
The Eleventh Circuit  observed that the Third Circuit had interpreted “the likely
to result in reversal” language as going to the significance of the substantial issue to
the ultimate disposition of the appeal. Giancola, 754 F.2d at 900 (citing Miller, 753
F.2d at 23). The Eleventh Circuit agreed with the Third Circuit that “[a] court may
find that reversal or a new trial is ‘likely’ only if it concludes that the question is so
integral to the merits of the conviction on which defendant is to be imprisoned that
a contrary appellate holding is likely to require reversal of the conviction or a new
trial.” Id.; see also United States v. Hicks, 611 F. Supp. 497, 499 (S.D. Fla. 1985)
4
Case 2:20-cr-00114-JES-M_M     Document 175     Filed 07/14/21     Page 4 of 8 PageID 4194

(“Thus, in determining whether there is a substantial question, a court must keep in
mind that it is not being asked to reverse its position on issues decided at trial, nor is
it being asked to grant a new trial. It must decide only that a significant issue exists
that merits appellate review and that the issue is critical enough to the defendant’s
conviction that a contrary appellate ruling would warrant a reversal.” (citing Giancola
and Miller)).
SUBSTANTIAL QUESTION TO BE PRESENTED ON APPEAL
Whether the Court Erred in Denying Crowther’s Renewed Motion
for Judgment of Acquittal or Alternatively for a New Trial?
This appeal presents a question of first impression in this and every other
Circuit, in essence, whether the Government can sufficiently prove legal falsity under
the bank fraud and bank false statement statutes when the loan was governed by the
Paycheck Protection Program (PPP) of the CARES Act and the governing law was
in constant flux,  ambiguous or conflicting. No Circuit Court of Appeal has addressed
criminal liability under the PPP.  Crowther’s case will be a test case for fundamental
economic and legal principles. Crowther incorporates by reference herein the
arguments made in the Renewed Motion for Judgment of Acquittal or Alternatively
for New Trial (Doc. 140) annexed hereto as Exhibit B.
5
Case 2:20-cr-00114-JES-M_M     Document 175     Filed 07/14/21     Page 5 of 8 PageID 4195

NO RISK OF FLIGHT OR DANGER TO THE COMMUNITY
Crowther has been released on conditions since his first appearance and was
allowed to remain free on conditions of release after the verdict and after sentencing
with a self surrender date of July 30, 2021.  Crowther therefore clearly does not pose
a risk of flight or danger to the community.
CONCLUSION
Crowther submits that his appeal raises a substantial legal question.  Crowther
is not required to establish that the ultimate result on appeal will be reversal on this
issue.  Instead, this Court need do no more than decide that within the meaning of 18
U.S.C. § 3143(b), the issue which Crowther will raise on appeal is sufficiently
substantial to satisfy the requirements of the statute, i.e., that is “one of more
substance than would be necessary to a finding that it was not frivolous. It is a "close"
question or one that very well could be decided the other way.” United States v.
Giancola, 754 F.2d 898, 901 (11th Cir. 1985).  Such is the question of first
impression in this case. 
Although Crowther pled guilty to count s five and six and was sentenced to a
concurrent 37 months imprisonment on those two counts, were the appeal of counts
one through four successful, it would mandate a resentencing of counts five and six,
and as to those counts, standing alone, the guideline range would have been 0-6
6
Case 2:20-cr-00114-JES-M_M     Document 175     Filed 07/14/21     Page 6 of 8 PageID 4196

months in Zone A, qualifying Crowther for the equivalent of a probationary sentence. 
Therefore his conviction by guilty plea as to counts five and six does not foreclose
release on appeal. 
Accordingly, Crowther respectfully requests this Honorable Court order
Crowther be released on conditions pending the resolution of his appeal.
Respectfully submitted,
KENT & McFARLAND
ATTORNEYS AT LAW
   s/ William Mallory Kent          
WILLIAM MALLORY KENT
Florida Bar Number 260738
24 North Market Street, Suite 300
Jacksonville, Florida 32202
904-398-8000 Telephone
904-348-3124 Fax
kent@williamkent.com
7
Case 2:20-cr-00114-JES-M_M     Document 175     Filed 07/14/21     Page 7 of 8 PageID 4197

CERTIFICATE OF SERVICE
I certify that on July 14, 2021, I caused a true and correct copy of Crowther’s
Motion for Release Pending Appeal to be served via CM/ECF upon all counsel of
record. 
     s/ William Mallory Kent        
William Mallory Kent
8
Case 2:20-cr-00114-JES-M_M     Document 175     Filed 07/14/21     Page 8 of 8 PageID 4198

File and source

File

gov.uscourts.flmd.381779.175.0.pdf

Size

90,202 bytes

SHA-256

febce75637e7a3c4a45b1383dfc7806229c1ef20e103d8386fa827ad74dbd406

Our copy

gov.uscourts.flmd.381779.175.0.pdf

Original

PACER (login required)