Response in Opposition by USA as to Casey David Crowther — USA v. Crowther (Dkt. 176, 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. 176 · 2021-07-26 · Docket on CourtListener

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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’ RESPONSE IN OPPOSITION TO  
DEFENDANT’S MOTION FOR RELEASE PENDING APPEAL 
 
 
The United States responds in opposition to defendant Casey 
Crowther’s (Crowther) motion for release pending appeal. Doc. 175. In 
support of his motion, Crowther identifies a single appellate issue that he 
claims presents a “substantial question,” warranting his release pending 
appeal. The basis for this single issue, which has been previously raised by 
Crowther in his motion for judgment of acquittal (Doc. 123) and renewed 
motion for judgment of acquittal (Doc. 140), does not satisfy the “substantial 
question” prong that is a prerequisite for release pending appeal under 18 
U.S.C. § 3143(b)(1).  Crowther’s motion should therefore be denied.   
LEGAL STANDARD 
 
The Bail Reform Act, 18 U.S.C. § 3143(b), presumes that a defendant 
who has been convicted and sentenced to a term of imprisonment should be 
detained without bond. See United States v. Giancola, 754 F.2d 898, 900 (11th 
Cir. 1985) (“Specifically, Congress intended to reverse the presumption in 
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favor of bail that existed under the prior state, the Bail Reform Act of 1966.”) 
It also presumes that a defendant’s conviction is valid and that he should be 
incarcerated. Id. at 900-01. The defendant bears the burden to overcome these 
presumptions. Id. (“The 1984 Act was intended to change the presumption so 
that the conviction is presumed correct and the burden is on the convicted 
defendant to overcome that presumption.”)  
 
A defendant may remain on bond pending appeal only if the defendant 
can demonstrate the following four elements:  
(1) that the defendant is not likely to flee or to pose a danger to the 
safety of any other person or to the community if released; 
 
(2) that the defendant’s appeal is not for the purpose of delay; 
(3) that the appeal raises a substantial question of law or fact; and 
(4) that if the substantial question is determined favorably to the 
defendant on appeal, the decision is likely to result in reversal of 
conviction, an order for a new trial of all counts on which 
imprisonment has been imposed, a sentence that does not include a 
term of imprisonment, or 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.  
 
18 U.S.C. § 3143(b)(1); Giancola, 754 F.2d at 901.  
 
ARGUMENT  
 
Crowther cannot meet his burden and satisfy the third requirement (i.e., 
demonstrating the existence of a substantial question), making him ineligible 
for release pending appeal. In his motion, Crowther raises the sole issue of 
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whether the Court erred in denying his renewed motion for judgment of 
acquittal or alternatively for a new trial. The crux of this issue, per Crowther, is 
whether “the [g]overnment 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.” Doc. 175 at 5.  
This is not a “substantial question” for purposes of the Bail Reform Act. 
A “‘substantial question’ is one of more substance than would be necessary to a 
finding that it was not frivolous.” Giancola, 754 F.2d at 901. It must be a 
“‘close’ question or one that very well could be decided the other way.” Id. 
“[T]here are no blanket categories for what questions do or do not constitute 
‘substantial’ ones.” Id. Instead, that determination needs to be made “on a 
case-by-case basis.” Id.  
 
The government’s proof of legal falsity at trial as it pertained to the 
bank fraud and false statement charges does not present a “close question or 
one that could very well could be decided the other way.” Id. As this Court 
noted in its order denying Crowther’s post-verdict motion for judgement of 
acquittal and for a new trial, the “[d]efendant was not charged with violating 
the CARES act,” and the “offenses relate to defendant’s misrepresentations to 
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secure a loan, and then the use of the loan proceeds for various monetary 
transaction.” Doc. 155.  
 
In this case, there was sufficient evidentiary support of the Court’s 
denial of Crowther’s motion.  The bank fraud and false statement charges 
focused on misrepresentations and false certifications Crowther made to 
secure a $2.1 million PPP loan. The primary focus being on Crowther’s false 
certification and representation that the PPP loan funds would be used “to 
retain workers and maintain payroll or make mortgage payments, lease 
payments, and utility payments.” Gov’t Trial Ex. 6, 8. There was more than 
sufficient evidence presented at trial that proved the falsity of Crowther’s 
representations. This included evidence that, leading up to and during his 
application for a PPP loan, Crowther was shopping for a $700,000 boat and 
was discussing his plans of using PPP funds to pay off debt principal owed to a 
former business partner via text message.  
 
Further, evidence of Crowther’s misuse of the PPP funds proved the 
falsity of the representations he made to Sanibel Captiva Bank concerning his 
use of PPP funds. The evidence presented at trial was that Crowther instructed 
the bank to deposit the PPP funds in a separate standalone bank account that 
could not be viewed or accessed by Target Roofing employees. See DiIorio, Tr. 
at 17-18. Further, after the PPP funds were deposited into the separate account 
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on April 14, 2020, Crowther wired $100,000 to his former business partner on 
April 21, 2020. Gov’t Trial Ex. 31, 32, 107. Three days later, on April 24, 
2020, Crowther wired $689,417 to a marina for the purchase of a brand new 
40’ catamaran boat. Gov’t Trial Ex. 33, 34, 107. In total, $918,737 in PPP 
funds were used between the dates of April 14-24, 2020. Gov’t Ex. 107. None 
of the $918,737 was used for payroll, rent, utilities, or mortgage interest. 
$1,179,963 of the PPP loan funds remained and, on May 7, 2020, the funds 
were transferred to Target Roofing’s operating account. Gov’t Trial Ex. 74 at 
2, 108; Knott, Tr. at 19-20.  
Following the transfer of the remaining PPP loan funds into Target 
Roofing’s operating account, $800,000 was used to pay down a $1.5 million 
line of credit on the same date. Gov’t Trial Ex. 74 at 2; Knott, Tr. at 20.  
Thereafter, approximately $379,000 in PPP loan funds remained in Target 
Roofing’s operating account. Gov’t Trial Ex. 74. Crowther’s clear misuse of 
PPP funds is evidence that he made false representations in his PPP loan 
application.  
Crowther’s argument that the changing, ambiguous, or conflicting law 
governing PPP and the CARES Act dilutes the falsity of his representations is 
without merit. Interim rules or guidance issued after Crowther received a $2.1 
million PPP loan does not negate his intent to defraud. Even if that was 
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possible, no guidance or changes have been made to PPP that would have 
allowed Crowther to use loan funds to purchase a $700,000 boat. DeCicco, Tr. 
v.2 at 52. Further, the evidence at trial was that, had Sanibel Captiva known 
Crowther would use a portion of the PPP funds to purchase a boat, they 
would not have approved his loan request. Id. at 27-28, 46-47. Therefore, 
Crowther has not raised a substantial question or a “close” question that very 
well could be decided the other way on appeal. See Giancola, 754 F.2d at 901.  
CONCLUSION 
 
For the above reasons (as well as those set forth in the United States’ 
Response in Opposition to Defendant’s Motion for Judgment of Acquittal and 
Motion for New Trial), the Court properly denied Crowther’s Motion for 
Judgment of Acquittal or Alternative for a New Trial. That decision has not 
given rise to a “close” or “substantial” question for appeal. In the absence of 
such a question, Crowther should be imprisoned during the pendency of his 
 
 
 
 
 
 
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appeal. Accordingly, the United States requests that this Honorable Court 
deny Crowther’s motion for bond pending appeal.  
Respectfully submitted, 
 
KARIN HOPPMANN  
Acting United States Attorney  
 
 
By: 
 /s/Trent Reichling              
Trenton J. Reichling  
Assistant United States Attorney 
Florida Bar No. 0084601 
2110 First Street, Suite 3-137 
Ft. Myers, Florida 33901 
Telephone:  (239) 461-2200 
Facsimile: 
 (239) 461-2219 
E-mail: Trenton.Reichling@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 July 26, 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: 
 
 
William Mallory Kent 
 
 
kent@williamkent.com  
  
 
 
 
 
 
 
 
 
/s/ Trent Reichling         
 
 
 
 
 
 
 
Trenton J. Reichling  
 
 
 
 
 
 
 
Assistant United States Attorney 
 
 
 
 
 
 
 
 
 
Case 2:20-cr-00114-JES-M_M     Document 176     Filed 07/26/21     Page 8 of 8 PageID 4206

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