Order denying as moot 174 Motion for Release Pending Appeal — USA v. Crowther (Dkt. 177, 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. 177 · 2021-07-27 · Docket on CourtListener

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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 
 
 
OPINION AND ORDER 
This matter comes before the Court on defendant’s Corrected 
Motion for Release Pending Appeal (Doc. #175) filed on July 14, 
2021.  The government filed a Response in Opposition (Doc. #176) 
on July 26, 2021.  For the reasons set forth below, the motion is 
denied. 
On September 2, 2020, defendant was released on an unsecured 
$100,000 bond.  (Doc. #9.)  Prior to trial, defendant pled guilty 
to one count of bank fraud in violation of 18 U.S.C. § 1344 and 
one count of making a false statement to a lending institution in 
violation of 18 U.S.C. § 1014.  (Doc. #117.)   After a jury trial, 
defendant was convicted of another count of bank fraud, another 
count of making a false statement to a lending institution, and 
two counts of conducting illegal monetary transactions in 
violation of 18 U.S.C. § 1957.  These charges related 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-
Case 2:20-cr-00114-JES-MRM   Document 177   Filed 07/27/21   Page 1 of 5 PageID 4207

 
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136, 134 Stat. 281 (2020), and his subsequent wire transfers for 
non-business expenditures.  (Doc. #155, p. 2.)  Defendant was 
sentenced to thirty-seven months imprisonment followed by thirty-
six months supervised release.  (Doc. #164.)  Defendant was 
continued on release, but ordered to surrender to the designated 
facility on or before July 30, 2021 at noon.  (Id. p. 2.)  
Defendant now seeks to remain on release while he takes a direct 
appeal of his conviction and sentence.  
The statute governing release or detention pending an appeal 
by a defendant provides as follows: 
(1) 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 
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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, 
except 
that 
in 
the 
circumstance 
described 
in 
subparagraph (B)(iv) of this paragraph, the judicial 
officer shall order the detention terminated at the 
expiration of the likely reduced sentence. 
 
18 U.S.C. § 3143(b). 
Defendant argues that he is not a flight risk or danger to 
the community and his appeal will raise a substantial question of 
law under § 3143(b)(1)(B).  (Doc. #175, pp. 3-6.)  Specifically, 
defendant argues his appeal presents a question of first 
impression: “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.”  (Id. p. 5.)  Defendant incorporates 
by reference the arguments he previously made in his post-trial 
renewed motion for judgment of acquittal.1  (Id.) 
 
1  Defendant recognizes that he pled guilty to offenses 
unrelated to the PPP issue and was sentenced to thirty-seven months 
imprisonment on all counts, including the non-PPP ones.  (Doc. 
#175, p. 6.)  Nonetheless, defendant argues that if his appeal is 
successful, he would be entitled to resentencing on these offenses 
and would be eligible for a reduced sentence.  (Id. pp. 6-7.)  
This argument need not be addressed given the Court’s conclusion 
discussed below.  
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“[A] ‘substantial question’ 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.”  U.S. v. Giancola, 754 F.2d 898, 901 (11th Cir. 1985).  
Having considered defendant’s argument, the Court finds he has not 
identified a “substantial question of law or fact likely to result 
in” a reversal, new trial, non-imprisonment sentence, or reduced 
sentence under § 3143(b).  As the Court noted in its Opinion and 
Order denying the renewed motion for judgment of acquittal, 
“[d]efendant was not charged with violating the CARES Act.”  (Doc. 
#155, p. 3.)  The four offenses relating to the PPP involved 
defendant’s misrepresentations to secure a loan, and the use of 
the loan proceeds for various monetary transactions.  Because 
defendant’s arguments relating to the PPP are not likely to result 
in reversal, a new trial, or a different sentence, the Court finds 
he has failed to show a substantial question of law under § 
3143(b). 
Accordingly, it is hereby 
ORDERED: 
1. Defendant’s Motion for Release Pending Appeal (Doc. #174) 
is DENIED as moot.  
2. Defendant’s Corrected Motion for Release Pending Appeal 
(Doc. #175) is DENIED. 
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DONE and ORDERED at Fort Myers, Florida, this   27th   day 
of July, 2021. 
 
 
 
 
Copies: 
Counsel of Record 
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