Court filing
Transcript of Jury Trial, Day Four of Four, as to Casey David Crowther — USA v. Crowther (Dkt. 193, M.D. Fla. No. 2:20-mj-01094, docketed in No. 2:20-cr-00114)
Filed November 15, 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 | 2021-11-15 |
U.S. District Court for the Middle District of Florida · No. 2:20-cr-00114 · Doc. 193 · 2021-11-15 · Docket on CourtListener
Full text
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
UNITED STATES OF AMERICA, ) Fort Myers, Florida
)
) Case 2:20-CR-114-FtM-66MRM
Plaintiff )
) Friday, March 26, 2021
vs. )
) 8:58 a.m. to 2:36 p.m.
CASEY DAVID CROWTHER, )
) Courtroom 5D
Defendant )
_______________________________)
TRANSCRIPT OF JURY TRIAL
DAY 4 OF 4, VOLUME 4 OF 4
HELD BEFORE THE HONORABLE JOHN E. STEELE,
United States District Court Judge
Official Court Reporter:
Jeffrey G. Thomas, RPR, CRR
2110 First Street, Suite 2-194
Fort Myers, FL 33901
Telephone: (239) 461-2033
(Proceedings reported by Stenotype; Transcript produced by
computer-aided transcription.)
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A P P E A R A N C E S
COUNSEL FOR GOVERNMENT:
United States Attorney's Office
Middle District of Florida
United States Courthouse
2110 First Street
Room 3-137
Fort Myers, FL 33901
(239)461-2200
BY: TRENT REICHLING, ESQ.
MICHAEL V. LEEMAN, ESQ.
COUNSEL FOR DEFENDANT:
FisherBroyles LLP
2390 Tamiami Trail North
Suite 100
Naples, FL 34103
BY: NICOLE HUGHES WAID, ESQ
BRIAN E. DICKERSON, ESQ.
* * *
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I N D E X
March 26, 2021 Vol. Page
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4
Jury Charge Conference
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7
Initial Jury Instructions
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8
Closing Argument by Mr. Reichling
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31
Closing Argument by Mr. Dickerson
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59
Final Argument by Mr. Leeman
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64
Jury Charge
4
84
Verdict Published
4
84
Polling of the Jury
4
85
Jurors Excused
4
86
Defendant Adjudicated
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88
Certificate of Court Reporter
* * *
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* * * P R O C E E D I N G S * * *
- - -
THE COURT: Good morning. You may be seated.
All right. A couple things. I was told by my
Courtroom Deputy that the government has detected an error in
the jury instructions, on Page 14, with regard to Count 2. As
I understand it, the indictment only alleges the revised loan
application, and not the original and the revised.
MR. LEEMAN: Yes, sir; that's correct.
THE COURT: And so it seems like we should strike the
three words, "Loan application and," from that instruction, and
then just leave it as, "The PPP revised loan application."
MR. LEEMAN: That's acceptable to the government,
Your Honor.
THE COURT: All right. Miss Waid or Mr. Dickerson,
what's your thoughts?
MS. WAID: No objection, Your Honor.
THE COURT: Okay. I'll do that. And I've got a
revised page in the works.
Any other deviations from what we talked about
yesterday in terms of the most recent version of the Court's
instructions?
MR. LEEMAN: No, Your Honor.
MS. WAID: No, Your Honor.
THE COURT: The final version that I've submitted
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ORDER OF COURT
does not include the defendant's request for what they've
called the ambiguity instruction. I assume you wish to
preserve your objection?
MS. WAID: Yes, Your Honor.
THE COURT: All right. You may do so, of course.
And with regard to the pending motion under Rule 29A,
the final version -- actually, I have two of them, but the
final version, I think, is Docket 123 in the computer system
here. The Court has reviewed it. I agree that it accurately
states the standard; that is, the Court has to view the
evidence in the light most favorable to the government, and
draw all reasonable inferences in favor of the government.
Doing that, the Court finds that the government has established
sufficient evidence, and a reasonable jury could find the
defendant guilty of each of the counts. Therefore, the
Rule 29A motion will be denied.
The final thing, at least on my list, before we get
to the jury, is . . . and I guess I'm not sure exactly how to
characterize this. The arguments with regard to whether the
government may use the term "liar" in closing argument. I've
reviewed, I think I was five, cases submitted by the defense
over the evening. None of them are Eleventh Circuit. The
Ninth Circuit cases that specifically addressed that certainly
state general principles that I don't think can be disputed.
However, the cases don't talk about the situation we're in now.
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ORDER OF COURT
So I guess my view is the government will use it at
their peril, as they do always, in closing argument. And to
the extent that the defense thinks they have said something
inappropriate, they may, of course, object; but I am not going
to give any blanket order that, in a case that charges a
defendant with lying, the government cannot use the term "lie,"
or "lied." "Liar" may get closer, depending on how it's used
by the government. We'll wait and see.
So to the extent the defendant wants more than that,
that will be denied.
All right. Any other matters before we see if the
jury's here?
MR. LEEMAN: Yes, Your Honor. The government just
wanted to ensure that the Court's ruling that the defendant may
not make arguments that loss is an element of fraud are
still -- is still in place, Your Honor.
THE COURT: It is. They may argue, of course, that
there is no loss, but they can't say that -- but they can't
argue that loss is an element of the offense.
All right. Anything else?
Do we have all jurors present, do we know? Hang on,
let me get to where I need to be.
All right. Have the jury step in, please.
(At 9:04 a.m., the jury was escorted into the
courtroom.)
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INITIAL JURY INSTRUCTIONS
THE COURT: Good morning, ladies and gentlemen.
At this stage of the case, the attorneys will be
making their final arguments to you. Counsel for the
government will have the opening argument, counsel for the
defendant will then have the opportunity to argue; and then, in
conclusion, counsel for the government will have the
opportunity to reply in rebuttal to the arguments of counsel
for the defendant. This is proper under our rules because the
government has the burden of proving the case beyond a
reasonable doubt.
Counsel, in making these arguments to you, will be
commenting upon the testimony that you have heard and the
evidence that has been presented. They, as you, will be
recalling the testimony and the evidence in the case. They
will not intentionally try to mislead you. However, if their
recollection of the testimony or the evidence differs from your
own recollection, you must follow your own recollection.
These final arguments by counsel are not to be
construed by you as evidence or as the instructions on the law.
Nevertheless, these arguments are intended to help you
understand the contentions of each side, and you should give
the attorneys your close attention.
Mr. . . . .
MR. REICHLING: Reichling. Thank you, Judge.
THE COURT: Just didn't know which one.
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CLOSING ARGUMENT BY MR. REICHLING
MR. REICHLING: Good morning, ladies and gentlemen.
You heard, during this case, that the Paycheck
Protection Program was created to protect the paychecks of
workers whose jobs were affected by the pandemic. The Paycheck
Protection Program was not a personal stimulus program for
business owners. This defendant treated the Paycheck
Protection Program like his own personal stimulus check.
Now, the evidence in this case is what matters. And
you've heard a lot of evidence in this case. And I'd like to
go through that evidence with you here now. So let's begin.
On April 1st, 2020, the defendant sends a text
message to Kyle DeCicco, who works at Sanibel Captiva Bank. He
asks Mr. DeCicco for this payroll loan grant that says I need
to apply through the SBA approved lenders. Are you guys
approved? If not, who should I do it through? Mr. DeCicco
tells the defendant to start to get 12 months of payroll ready.
Now, you'll notice that, in a lot of the slides that
we'll be showing you this morning, there's a little exhibit,
EX, and a number next to it. These refer to the government's
exhibits that have been admitted in this case. And, when you
deliberate in this case, you will have access to these
exhibits. So I ask that you take note of the exhibits that
I'll be showing you, because you can refer to them during your
deliberations.
So what happens after this text exchange? Well,
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CLOSING ARGUMENT BY MR. REICHLING
six days later, the first PPP application is submitted to
Sanibel Captiva Bank. In this first application, Target
Roofing and Sheet Metal was seeking $1,480,722. And what
misrepresentations were contained on the first application?
Well, first, Crowther, the defendant, initialed and
signed that current economic uncertainty make this loan request
necessary to support the ongoing operations of the applicant.
The other certification, very important in this case,
was a certification that the funds will be used to retain
workers and maintain payroll or make mortgage payments, lease
payments, and utility payments.
This certification goes on to state that I understand
that, if the funds are used for unauthorized purposes, the
Federal Government may pursue criminal fraud charges.
So what happens after this particular application is
submitted to Sanibel Captiva Bank? Well, on April 8th, 2020,
the defendant is notified by Kyle DeCicco, via e-mail, that
he's been approved. He's been approved for this initial PPP
loan application. So what does the defendant do? Two days
later, on April 10th, 2020, the defendant finalizes the price
for the purchase of a 40-foot, 2020, catamaran boat with four
400-horsepower engines on the back of it.
Now, I need you to keep in mind, you heard testimony
from Brian Peterson and Ryan Bradley, and they told you that
Casey Crowther had initially come to the Sara Bay Marina back
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CLOSING ARGUMENT BY MR. REICHLING
in late March. So, this entire time that the defendant and his
company are submitting PPP applications to Sanibel Captiva
Bank, he's negotiating the price for the boat. So, on
April 10th, the price is finalized. Shown here in this
contract with the defendant.
What happens after that? Well, on April 13th, 2020,
the defendant sends a text message to Kyle DeCicco. And he
tells him, I think your PPP calculator is wrong. We are
submitting ours now. Sorry, man. And Kyle tells him to submit
it. Submit it. And the defendant goes on to say there is
nothing in here, at all, that says we should deduct employee
withholding from the total. I don't even know how that would
make sense. I just sent mine. The defendant knows the details
of the program. He knows what should be included, what should
not be included, what should be submitted, what should not be
submitted.
So a new, revised application is submitted. The new,
revised application for a PPP loan is for $2,098,759. The
difference between the first PPP loan application and the
second PPP loan is roughly $618,000, very close to the price of
the original -- the original price of the boat. A coincident?
Now, after the defendant's company submits this
revised PPP loan application, Kyle DeCicco e-mails the
defendant the first Interim Final Rules. And you heard a lot
about the Interim Final Rules in this case, but I'd ask you to
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CLOSING ARGUMENT BY MR. REICHLING
use your common sense here. What we have to prove is what the
defendant's intent was at the time he submitted these
applications, whether he was intending to defraud or deceive
the lender concerning his intended use of funds.
So, before the loan agreement package is finalized,
and the funds are deposited into Mr. Crowther's account,
Mr. DeCicco sends the defendant the Interim Final Rule, the
first one, the one back in April, April of 2020; not the one in
February of 2021, we were back in April. And attached in this
IFR are three specific sections that I want to talk to you
about. These are sections in the same IFR that's attached to
the e-mail that was sent to the defendant.
The first is how can PPP loans be used? It's rather
clear, ladies and gentlemen. The proceeds of a PPP loan are to
be used for, and it outlines those various uses: Payroll
costs, costs related to continuation of group healthcare,
mortgage interest payments, rent payments, utility payments,
interest payments on any other debt obligations that were
incurred before February 15, 2020. Refinancing of an SBA EIDL
loan.
Not anywhere in here does it say you can use the
funds to buy a boat. Nor does it say you could use the funds
to pay principal on debt that you owe to an old business
partner.
The Interim Final Rule goes on. What happens if PPP
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CLOSING ARGUMENT BY MR. REICHLING
loan funds are misused? If you use PPP loans -- funds, excuse
me -- for unauthorized purposes, the SBA will direct you to
repay those amounts. But if you knowingly use those funds for
an unauthorized purpose, you will be subject to an additional
liability, such as charges for fraud.
And that's not it. That's not all that was included
in the Interim Final Rules about using PPP funds. Talks about
what certifications need to be made: The necessity
certification, that current economic uncertainly makes this
loan necessary; that the funds will be used to retain workers,
and maintain payroll, or make mortgage interest payments, lease
payments, and utility payments, and that I understand that, if
the funds are knowingly used for unauthorized purposes, the
Federal Government may hold me legally liable, such as for
charges of fraud. The defendant was sent an e-mail with this
clear guidance from the SBA on April 13th, 2020.
But the misrepresentations in this revised
application are not all of the misrepresentations that the
defendant made to the lender in this case. And you saw various
loan documents that we put into evidence with Kyle DeCicco.
One of the misrepresentations contained in the loan
documents was that the borrower would use the proceeds of this
loan solely for payroll costs, costs related to continuation of
group healthcare benefits, rent payments, business-related
mortgage interest payments, utility payments, interest
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CLOSING ARGUMENT BY MR. REICHLING
payments, refinancing of an SBA EIDL loan. These are all
consistent with what is in the first interim rule, the same
interim rule that was sent to the defendant. Nowhere in here
does it state that the PPP funds can be used to buy a boat or
to pay back an old business partner.
Goes on to say, in the same loan ap -- these same
loan documents, that if the PPP funds are used for unauthorized
purposes, the SBA will direct borrower to repay, and it goes on
to say if the borrower knowingly uses the funds for
unauthorized purposes, the borrower will be subject to
additional liability such as charges of fraud. Identical to
the first interim rule that was sent to the defendant on
April 13th. The defendant signed the certification
acknowledging that he read it and understood it.
That's not all the misrepresentations that were
contained in the loan agreement documents. The undersigned
hereby certifies, certifies, no part of the proceeds of the
loan will be and/or were used for an unauthorized purpose. It
goes to state various documents that are provided, so on and so
forth. This was digitally signed by the defendant back on
April 14th, 2020.
An additional attachment that was contained within
these loan documents was the attachment of SBA Form 1050, which
you can see, in the lower right-hand corner, was Exhibit 12.
That was attached to a settlement sheet which showed what the
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CLOSING ARGUMENT BY MR. REICHLING
funds could be used for. And this outlines again, payroll
costs, costs related to the continuation of healthcare
benefits, business related mortgage interest payments, rent
payments, utility payments, interest payments on other debt.
Nowhere on here does it say you can use the money to buy a boat
or pay back an old principle on a debt to a former business
partner.
So I want to talk a little bit about this PPP bank
account that was opened up by the defendant. Now, you heard
from Kristen DiIorio. She came in here and she testified that,
back on April 10th, 2020, she sends an e-mail to the defendant
telling him -- advising him of the funding instructions and
where the money would be deposited into for his PPP loan
application. And the defendant's initial response to that
e-mail was deposit in my main operating account. But 20, 30,
maybe 40 minutes after that e-mail, there's another e-mail sent
back to Kristen DiIorio, and it says call me. Call me. Call
me, please.
Well, you heard from Kristen DiIorio. She called the
defendant and he told her, you know what? I want to put the
funds in a separate account, and I want to be the only person
that has access to that account. You can take a look at
Exhibit 104, which is the signature card for this account. The
defendant was the only account holder for this account.
So let's talk about when the money came into the
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account. This is the PPP account. Money was deposited on
April 14th, 2020. You can see the amount there. $2,098,700.
Let's talk about the first transaction in this
account. It's going to give an idea of what the defendant
believes this money is for. 4/16/2020. The defendant
transfers $126,000 to his main operating account. Is it for
payroll? Was it for mortgage interest? Was it for rent?
Utilities? No, no, no. It was to pay down a credit card, a
company credit card that has all sorts of transactions on it.
And I'll talk to you about that in a minute.
But the description of that transfer is important to
look at. Loan from Casey. The defendant thinks that this PPP
money is his own money. Not Target Roofing's money. He,
himself, is loaning his company, who got him the $2.1 million
loan, a loan. He's loaning him -- he, personally, is loaning
his company $126,000. The money that his company got.
And Exhibit 168 are these credit card statements.
They outlined a whole sort -- there's a bunch of different
transactions. There's marina fees on there, there's purchases
at Taco Bell, Bass Pro Shop, Kumo Japanese Steakhouse.
You heard from Diane Knott. She told you that, in
the three months prior to when this was paid down, the balance
was always over $120,000. And these are just some of the
transactions that were occurring on the credit card.
So let's talk about the next transaction. Well, it's
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CLOSING ARGUMENT BY MR. REICHLING
the wire transfer to Steve Adkins, the wire transfer payroll.
Key word, payroll. Why is that important? Well, payroll is
one of the permissible uses of PPP funds. The defendant was
disguising this transfer as something that will be permissible
under the program. Payroll. And it wasn't payroll.
You heard from Steven Adkins. There was a stock sale
agreement, and the defendant was paying him back for stock that
he owed him on. It's over $700,000. That included a
residential property out on Saint James City, it included a
property that Target Roofing and Sheet Metal sat on, and it
included the ownership interest that Steven Adkins had in the
business. It wasn't for payroll.
This is the payroll transfer paperwork. Shows here,
clearly, payroll transferred to partner. Concealment, ladies
and gentlemen. He's concealing his use of PPP funds and
calling it something that is a permissible use under the
program. Payroll. This isn't payroll.
Let's talk about the next transaction briefly.
$3,300 is transferred to the defendant and his wife's personal
Sanibel Captiva account, and that money has just later been
mowed out somewhere.
But what about the April 24th wire for an equipment
purchase? Right? An equipment purchase. Equipment, right?
Business related. Something for the business. Concealment
again. Calling it something that it's not. Hiding his use of
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PPP loan funds. Roofing equipment, right? This boat wasn't
bought for Target Roofing. This boat wasn't bought to take
people out on to host clients and take out workers from Target
Roofing to go fishing. This boat was bought for the defendant,
and only for the defendant. The title registration documents.
It's in the defendant's name. And his application for a title,
the use of the boat is for pleasure. Recreational. Not
commercial. The boat had to do with roofing.
We know that, on the date the defendant bought this
boat, he didn't have sufficient funds in any other of his
Sanibel Captiva accounts to cover the cost of this boat; right?
The defense talked about two pockets. The PPP
account pocket is looking like this. It's thick. The pocket
for the main operating account, a lot slimmer than that PPP
account.
On the date the defendant bought this boat, there was
only $131,000 in the main operating account. Not one cent had
been transferred to the main operating account to cover any
eligible uses of PPP funds. Not payroll, not interest payment
on debt, not mortgage interest, not rent payments, not
utilities. Nothing. Between the date the money came in and
the date the money went to the boat, not one dime was
transferred to the main operating account for any of that.
So what happens to the money after that? Well, on
May 7th, the remaining funds are then moved over to the main
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CLOSING ARGUMENT BY MR. REICHLING
operating account. There's about one . . . about $1.1 million
left, and it's deposited into the main operating account.
Now, on May 13, 2020, the defendant receives an
e-mail from Kyle DeCicco. And that e-mail is important for a
variety of reasons, and I'll get to that. But this e-mail to
Casey Crowther says I wanted to make you aware of recent
guidance from the SBA. Borrowers that received PPP loans for
amounts over $2 million will be subject to review by the SBA
for compliance with the program requirements, including the
certification of economic need.
If the SBA determines, in the course of its review,
that a borrower lacked an adequate basis for the required
certifications concerning the necessity of the loan request,
the SBA will seek repayment of the outstanding PPP loan
balance, and will inform the lender that the borrower is not
eligible for loan forgiveness.
Crowther responds that he's on top of it. Yes. We
got it all and more. More than prepared. Thank you. He's on
top of it, all right. Two days later, 20 paper shredders are
added to Target Roofing's payroll. Twenty. Let's talk about
one of the 20. Uriel Cardenas. Started on 5/15/2020. The
Social Security Card was fake.
All the Social Security cards were fake. They
actually look alike. You'll have these exhibits with you as
you deliberate. It's Exhibit 150. If you take a close look at
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the Social Security Card, you'll see a little pink dot next to
the social. These documents were all probably created at the
same time.
The HR director told you she never saw any of these
people. The documents for these employees were all provided to
her by Casey Crowther. The checks, when they came in from WBS,
to be given to the employees, they were given to Casey
Crowther. The human resources director thought the arrangement
was unusual. This was something that hadn't ever really
happened before. May have happened back during Hurricane
Michael. There's no hurricane going on here. People hired to
shred documents.
Even more important, Mr. Cardenas, who worked for
three weeks, three weeks, shredding documents in some house
conveniently located in the back of the property, did not cash
a single paycheck. This guy got three separate paychecks, and
he didn't cash one. Do you think he worked for free? I don't
know. I'd say he probably didn't work at all.
Thirty-eight others were just like him. No one was
ever seen, they were all fired on the same date, all their
documents were fake, and none of the checks were cashed except
for one, Agustin Castillo. He was also one of the individuals
that was hired to shred documents on May 15, 2020. In the
upper left-hand side of the slide, you'll see a portion of his
new employment enrollment application, and he's got a signature
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there above the name Agustin Castillo.
You'll have copies of his exhibits when you
deliberate and have you take a look at them, Exhibits 54, 56,
and 150. Look at that signature, and look at the signature on
the back of the check that says Agustin Castillo. I know it's
hard to see, a little difficult. But it's not difficult to see
that those signatures look nothing alike.
Where did that check go? Check went into the
defendant's Bank of America account on August 20th, 2020, more
than -- you know, nearly three months after Mr. Cardenas was
working, shredding documents -- excuse me, Mr. Castillo was
working and shredding documents of Target Roofing.
Three months later. Did he just hand him the check?
Let's not forget, the family members were hired as
well: The defendant's wife, the defendant's mother-in-law, the
defendant's sister, his brother-in-law, his father-in-law.
They were all given weekly salaries ranging between 1700 to 18,
$1,900 and up. But they all had a common theme amongst them,
and I'm going to get to that.
John Miller from the SBA testified, and he told you
that there's a cap on forgiveness for individual salaries, and
that's a hundred thousand dollars annualized. So the amount of
money that the family members were paid was just under that
threshold for forgiveness, just under that hundred thousand
dollar threshold for forgiveness, just under that $100,000
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threshold amount.
HR director testified she never saw any of these
people working there. She never saw them in the office, she
never saw them in the bathroom, the break room. She didn't
know what they were doing. They were probably doing nothing.
Never saw them. They were also all fired on January 5th, 2020.
Or, excuse me, June 5th, 2020. My apologies.
Now, you may be asking yourself why did Casey
Crowther add a bunch of fake employees and family members to
the payroll? Well, it's quite clear. First, he was sent an
e-mail, almost like a warning e-mail, from Kyle DeCicco,
suggesting that his loan is going to receive an additional
audit by the SBA. And, as you heard from testimony from John
Miller and Kyle DeCicco, during the forgiveness process, a
borrower only has to submit payroll documents to get
forgiveness. There's no audit that bank needs to do. They
don't need to look at bank statements and determine whether the
money went where it went. All they need to be provided in
forgiveness are payroll documents.
These people were added to boost the payroll numbers
for Target Roofing so that the defendant could get forgiveness.
The defendant wasn't intending for this thing to be a loan.
This wasn't a loan. This was going to be a free $2.1 million.
Now, all these paychecks that weren't cashed, total
of probably around a hundred thousand dollars, probably asking
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yourself why would a business just part with a hundred thousand
dollars? What's a hundred thousand dollars if you get
$2 million out of it, right? What's $100,000 if you get a 670
or 80 thousand-dollar-boat for free out of it?
Now, like I stated, the family members and the fake
shredding employees, all 39 of them, were all fired on
June 5th. And why is that relevant? Well, that's the same day
that Congress and the President passed the Paycheck Protection
Flexibility Act. And at that point in time you now had up to
24 weeks to use your PPP money towards payroll.
So these people weren't needed anymore. The
defendant knew he'd be able to establish those payroll numbers
in 24 weeks. Those documents that he would submit to his
lender wouldn't include anything about where his money went and
where it went, where it went and how it was used. The
percentage of payroll, the money that needed to be spent
towards payroll, went from five percent to 60 percent.
Again, the defendant was on top of the changes being
made to the PPP program. Shown right here in this e-mail, sent
to Evelyn Portinari on May 28th, 2020. It's Exhibit 51.
Mr. Crowther e-mails Evelyn, can you please get us all together
for a meeting tomorrow? They changed the rules, and no longer
need to spend all the money in eight weeks. Need to change
some strategy up immediately. Title of the e-mail is PPP rule
changes.
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Now, in the meantime, going on in the background of
all this is another conversation the defendant has with Kyle
DeCicco around May 18, 2020. Kyle reaches out to the
defendant, and he needs to talk to him about his PPP loan. And
they have a phone conversation that day, and DeCicco calls him
out for buying the boat with PPP money. And Crowther, the
defendant, asks DeCicco would it look better if I moved money
from my personal account. That was during the May 18th phone
conversation.
The next day, he sends a text message to Mr. DeCicco
and says I'm going to move my personal money I had to purchase
the boat over to my SanCap account. And then Mr. DeCicco
responds okay. Talk to Craig. Make sure you guys are on the
same page. Whatever you think is best.
Well, you heard from Diane Knott. She talked about
all the bank statements that she reviewed between January and
September of 2020. That money never showed up. There was no
deposits of cash or any other deposits the defendant was moving
over to cover the costs of the boat. That never happened.
In fact, there was an e-mail we showed you during the
case from July 31st, 2020. That's what, two and a half months
after this text exchange with Mr. DeCicco. That e-mail was
Kristen DiIorio advising the defendant of what he would need to
do to deposit cash, cash, that he got from the sale of a prior
boat. That box of cash, maybe, that you were shown, that was
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from March? Defendant waited what, four months to reach out to
Miss DiIorio about how to deposit cash? Four months later?
Makes no sense. There's no evidence of any cash deposits being
made in any of the accounts.
But the defendant wasn't done, yet, misrepresenting
wire transfers and moving money around. Now, I will admit, I
will tell you, that this horse wire happened after funds were
commingled into the main operating account. Happened on
June 1st. Also happened during this same time that the
defendant had to spend PPP funds towards payroll during that
eight-week period. It also happened pretty close in time to
when Mr. DeCicco had called out the defendant for buying a boat
with PPP money.
So what's the defendant do on January 1st, 2020?
Excuse me, June 1st, 2020. He sends Kristen DiIorio an e-mail,
and he asks her to wire $55,000 for materials. For materials.
Not only that, but he sends an e-mail after the request and
says can you send me something that shows we made the wire? I
want to show them something so the guys can pick the materials
up now.
You heard from Heather Mangus. She doesn't sell
roofing materials. They bought a $55,000 horse on June 1st,
and they disguised it, he disguised it, the defendant disguised
it, as materials. Materials.
Not only that, but he went so far as to send the bank
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an e-mail, a follow-up e-mail, suggesting that guys were going
to pick up materials. More misrepresentations made by the
defendant.
Now, like I said, the money had been commingled by
that time, but there's no reasonable explanation as to why the
defendant would hide this transaction.
Now I want to talk to you a little bit about the law
in this case, and what the defendant is charged with.
You'll be advised that the defendant is charged with
bank fraud, and it can be proved in two alternative ways. The
first way, and the elements are outlined here, the defendant
knowingly carried out or attempted to carry out a scheme to
defraud a financial institution; two, the defendant intended to
defraud the financial institution; and three, the financial
institution was federally insured.
Or, the other alternative way, is the defendant
knowingly carried out, or attempted to carry out, a scheme to
get money, assets, or other property from a financial
institution by using false or fraudulent pretenses,
representations, or promises about a material fact; the false
or fraudulent pretenses, representations, or promises were
material; and the financial institution was federally insured.
Now, I want to talk to you just a little bit,
briefly, about the two alternative ways. What does it mean,
right?
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Well, it means that you can find the defendant guilty
of bank fraud if the government has proven, beyond a reasonable
doubt, that the defendant committed bank fraud in one of those
two ways or both ways. If you find the defendant has -- that
the government has not been able to prove, either way, of
committing bank fraud beyond a reasonable doubt, you would find
the defendant not guilty.
Let's talk about the scheme to defraud that's
contained here within the elements. The scheme to defraud in
this case, ladies and gentlemen, is the defendant intended to
enrich himself with a forgivable loan made to his company for
payroll. He made misrepresentations about what he would use
the funds for to get the loan over, and over, and over again.
Kept stating I'm going to use the money for payroll, utilities,
rent, mortgage interest. This was all done . . . these
misrepresentations were all done to get the bank to approve a
PPP loan. A forgivable PPP loan.
But that's not all that was to the scheme to defraud.
The defendant took steps to conceal his misrepresentations, his
use of the money. We talked about that, he called his wire
transfers payroll, equipment, words that are synonymous with
business-related expenses; right? Payroll's for business,
equipment is for business.
He took steps to ensure that he was going to get
forgiveness. Right? This wasn't a loan to him. He wanted
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forgiveness. He wanted a free $2.1 million.
He hired 39 fake employees to shred documents. He
hired five family members that did no work. He was fine with
running through a hundred thousand dollars because, like I
said, what's a hundred thousand dollars if you're getting
$2.1 million out of.
Let's talk about some of the false representations,
pretenses, or promises. I talked about them a lot as I went
through the evidence. The representations that were made by
the defendant about his intended use of the money were clearly
false. You saw that in the bank records. The money comes in,
the money goes out. It's in a segregated account that he
actually asked to be opened up so only he could have access to
it. They were clearly false. The money didn't go to payroll.
It went to a boat. It went to pay back an old business
partner.
The government doesn't have to prove that all of the
money was not used appropriately. We just have to prove that
portions of that money was. Because why? It's a lie. He told
the bank he was going to use the money for certain purposes,
and he didn't do it. These false representations, as I said,
were made repeatedly, through applications, and loan agreement
documents. And, in those documents that the defendant signed
himself, there's no law, rule, guidance, ever, that's ever come
out, in any IFR, that a boat could be purchased with PPP money.
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Now, you'll see this materially false representations,
pretences, or promises. And the government doesn't have to
prove that the false representations were material to Sanibel
Captiva Bank. Definition of materially false is, is a false
representation that a reasonable person would rely on to decide
whether to do something.
Well, these certifications, these representations of use
of funds, had to be made to get the PPP money. A bank would
need to rely upon those statements to issue an SBA approved
loan number -- approved loan. They needed those
certifications, and they needed to be accurate, to get that
guaranty, and to get that SBA loan number. The bank would not
have made the loan without those certifications because they
were required to participate in the PPP program, like I
discussed.
Mr. DeCicco even got on the stand and told you will that
he would not have approved the PPP loan application had he
known that the defendant was going to use the money to buy a
boat. That's materiality. That's a material false
representation, ladies and gentlemen.
Now, this is important. You'll be advised on the
elements of the offense. But whether the bank believes it was
a victim or not is not an element of bank fraud. Whether the
bank suffered a loss is not an element to bank fraud. The
question is whether Crowther schemed to obtain something to
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CLOSING ARGUMENT BY MR. REICHLING
which he would not have otherwise received. If so, Crowther
intended to harm the bank, and that is sufficient.
Fraudulent intent. Run through this quickly. The
timing of the loan. He's applying for the loan while he's also
looking to buy a boat; right? He finalizes the purchase of the
boat two days after he finds out he's approved for the loan.
Crowther has an account that the money goes into that he is the
only one that has access to. There are lies made to cover up
the boat purchase, the payroll transfer, and the horse.
Fraudulent steps that were taken to ensure forgiveness when the
defendant added 39 paper shredders and his family members to
the payroll.
Count 2, believe, charges false statement to a financial
institution. The defendant made a false statement or report,
the defendant did so knowingly and with an intent to influence
an action of the institution described in the indictment
regarding an application or loan, and the deposits of the
institution were insured by the Federal Deposit Insurance
Corporation, the FDIC.
I want you to think about this with Count 1. The
government, for false statements, does not have to prove the
bank was actually influenced or misled by the defendant's false
statements.
The government has to prove, of course, that the
statement was false. It was false. The defendant lied about
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his use of funds. We know that because of the bank records and
other things.
And that the defendant did so knowingly, and with an
intent to influence the action of the institution, Sanibel
Captiva Bank. These representations were needed to be made --
these false misrepresentations were needed to be made to get a
forgivable PPP loan. They were made with the intent to
influence the action of Sanibel Captiva Bank.
These are some of the exhibits. The application for the
$2.1 million is what we're alleging is the false statement.
The false statement contained within the April 13th PPP loan
application revised submission. As well as the false
April 13th certification about the use of funds contained
within that application that was signed and initialed by
Crowther and submitted to the bank.
Like I said, the government does not have to prove the
bank was actually influenced or misled with Count 2.
For Counts 1 and 2, the parties have agreed that Sanibel
Captiva Community Bank was insured by the FDIC. We stipulated
to that. That's Exhibit 171.
Count 3 and 4 involve illegal monetary transaction.
These were funds that were used and derived from bank fraud.
The defendant knew the proceeds were proceeds of a crime, bank
fraud. And the transaction was over $10,000, and the money
transaction affected interstate commerce.
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CLOSING ARGUMENT BY MR. DICKERSON
Counts 3 and 4 deal with the wire transfer that was sent
to Steven Adkins which used money the government believes was
from bank fraud, the bank fraud being the money from the PPP
loan that the defendant got by making false and fraudulent
misrepresentations to the bank about his misuse of funds. The
other count is about the wire transfer for the boat. Both of
them were over $10,000. The parties also agree and have
stipulated that the wire transfers affected interstate
commerce. That's Exhibit 170.
Now, as the Judge said, I will have another opportunity
to hopefully speak to you briefly; but, before I forget, I
wanted to thank you for your service during the week. You've
sat here patiently, attentively, and given us your attention
and your time; and we certainly appreciate it, especially
during these times.
Thank you.
THE COURT: Thank you.
Who is it? Mr. Dickerson?
MR. DICKERSON: Thank you, Your Honor.
THE COURT: Does the jury need a break before we
continue? You're okay? All right. Thank you.
MR. DICKERSON: May we publish the publication on the
screen, please?
May I proceed, Your Honor?
THE COURT: You may.
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MR. DICKERSON: Thank you, Your Honor.
Good morning, ladies and gentlemen of the jury.
It's been a long week. Thank you for your attendance
and paying attention during this case.
When Nicole Waid spoke to you on Tuesday morning, in
her opening, she spoke to you about Target Roofing. She gave
you her presentation of what's going to come out at this trial.
And, if you remember -- there's been a lot of words since then;
but, if you remember, she talked about facts matter. And,
ladies and gentlemen, that's where we are.
Facts, not matter. Facts matters, not stories. Not
side stories. The agreements matter. And not just the
documents that the government single-handedly selects and say,
here, look at this document, but not the entire document.
That's important. Like the IFRs that was just stated by the
government. They're important.
But you know what the government hasn't shown you?
On their theory -- I think we all agree the government's theory
is that money came from Sanibel Captiva Bank, the government
believes that is directly some type of PPP direct fund
controlling by the CARES Act, and that that money went into
this account, a Target corporation bank account, at Sanibel
Captiva Bank; and because it said PPP on it, all of those funds
had to be used pursuant to the forgiveness application process
from day one.
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CLOSING ARGUMENT BY MR. DICKERSON
Now, the biggest shortfall of the government's case
is I haven't heard, in any of this evidence, that there is an
IFR, a guidance, or any authority that those funds are
earmarked. Once that money goes into the corporate account,
that's corporate money, no matter what that account is called.
But the documents which I will show you confirm that
forgiveness and the actual application of PPP CARES Act money
kicks in when -- remember, when -- a company either files for
forgiveness and receives forgiveness, or defaults. Because,
until that time . . . Mr. DeCicco said it over again, and I'll
show you testimony, it's Sanibel Captiva Bank money. It's
their asset. It's on their books.
I thought it was interesting during the trial how it
was -- it seemed like part of the story was always presented to
you. Just a little piece. And then, cross-examination, and we
were asking the questions, and there were full answers. I
mean, you, as jurors, the fact finders, can use your common
sense, can think about what you saw from that witness stand and
what you saw at the podium, and the interaction between the
two. And sometimes it got hostile. Why?
Now, there's the presumption of innocence. We talked
about that in voir dire. The Judge is going to talk about that
further, and he's going to read you a jury instruction
specifically talking about the presumption of innocence. And,
like we spoke in voir dire, Mr. Crowther is presumed innocent,
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CLOSING ARGUMENT BY MR. DICKERSON
and he's sitting there as an innocent man, and you all agreed
that he was an innocent man sitting at that table.
The defense and the defendant, the Judge will tell
you, do not have to put on any evidence at all. It is up to
the government to put on the evidence to criminally convict a
person. And they must do it by proof beyond a reasonable
doubt. Now, what is that?
First sentence. It's a heavy, it's a heavy burden,
people. It's not easy. So beyond a reasonable doubt. If
you're not convinced that the alleged allegations of charges
were proved beyond a reasonable doubt, you must find
Mr. Crowther not guilty. And it's based upon your reason,
common sense, as you carefully consider all of the evidence in
the case.
And the Judge is going to tell you evidence, the
paper documents that's gonna go back to you, of the testimony
that you're gonna hear, as well as your observations of the
witnesses, and the interaction that I'm talking about. And
it's gonna be that there's no IFR, no presentation at all,
about this earmarking theory.
Now, the case is dealing with bank fraud, and you're
going to have the Judge provide you an annotation that
specifically talks about the intent to defraud. And this jury
instruction annotation specifically states proving intent to
deceive a loan without the intent to cause loss or injury is
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CLOSING ARGUMENT BY MR. DICKERSON
not sufficient to prove intent to defraud. You're gonna have
that document back there, and you're gonna have that
annotation, you can see it right in front, the Judge is going
to give it to you.
Now, going back to the facts, because facts do
matter, and going back to what the government presented, and
then when we came and did our cross-examination -- and, by way
of example, I think, we can all remember that the government
has brought in a couple of these loan documents
single-handedly.
And do you remember when I was cross-examining
Mr. DeCicco -- again, a government witness -- and I asked him
about the loan packet? Well, ladies and gentlemen, you are
going to to have that loan packet. The government didn't
produce the loan packet. They didn't introduce it. They
wanted you to see a couple documents. Again, not all the
facts. Remember that. And they didn't necessarily want you to
probably read all the documents clearly.
But this is a loan, one-percent interest loan between
Sanibel Captiva Bank and Target Roofing. And, in the loan
document, Exhibit 9, the promissory note -- do you remember
Kyle DeCicco speaking about the promissory note -- that is what
contractually binds the bank and Target Roofing. Okay? That's
how Target Roofing and Sanibel Captiva are going to have their
business relationship. That's what creates the asset on the
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books of Sanibel Captiva Bank.
And when you look at that document back there in the
jury room, loan forgiveness, the bank's document, says 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. The bank's document, specifically spelling out the
promissory note.
Paragraph 1, the promise to pay, specifically states
that they may. It doesn't say you shall, it doesn't say you
will. And the government, during their case in chief, showed a
line of credit to Mr. DeCicco. That line of credit they
showed, it said use of proceeds in that line of credit, where
it said Target Roofing could only use those loan proceeds for
business purposes.
This is the document that controls the promissory
note, that's the document, the $2 million that went from
Sanibel Captiva Bank over to Target Roofing. And, ladies and
gentlemen, I would pull up that provision, but it doesn't
exist. There is no use of proceeds. It's a specific may apply
for loan forgiveness.
The maturity note, it will mature in two years. Now,
we heard testimony that changed to five years in June. But
Number 9, I always find it interesting this isn't being brought
up enough. When SBA is the holder. When. Not that SBA is the
holder of this note. When. And that goes to the entire
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discussion that you've heard these witnesses talk about. There
are bank loan proceeds, there are SBA loan proceeds. And when
those SBA loan proceeds are used for forgiveness, or when the
bank comes back and says we're not being paid on this loan, we
want to invoke our guaranty.
Now, remember, there is no contract between Target
Roofing and SBA. The agreement that's in the materials,
Exhibit 7, that's an agreement between the lender, Sanibel
Captiva Bank, and the SBA. So the lender, if Target Roofing,
or any borrower on a note with a 7(a) program, does not pay,
the lender then goes over and they get repaid. And that's when
the 7(a) or the SBA provision's invoked, and that's when,
Paragraph 9, SBA becomes the holder. Or at the time that
there's a forgiveness. But there has been no forgiveness.
May I grab my water, Your Honor?
Now, am I making this stuff up? No. You heard it.
But, actually, Kyle DeCicco specifically said it in his trial
testimony. It's not a story. It's not a side story that
there's fake employees.
MR. REICHLING: Objection, Your Honor. The defendant
is presenting a transcript of the trial testimony of Kyle
DeCicco.
THE COURT: The objection is overruled, but the jury
is instructed that I've allowed counsel to use demonstrative
evidence, but the fact that they've put something in writing,
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and make a chart, or whatever it purports to be, isn't binding
on you. If your memory is different, you follow your memory,
regardless of what counsel may have on the screen. That
applies to both sides.
MR. DICKERSON: Thank you, Your Honor.
But as the Judge said, use your memory, but Kyle
DeCicco specifically said those loan proceeds, bank loan
proceeds, Sanibel Captiva, and Target Roofing.
And you also understood that, if they do apply for
forgiveness, then that is the triggering mechanism, the
triggering requirement of the Paycheck Protection Program. So
yes, Kyle DeCicco was quite clear, the bank has its loan with
Target Roofing. There is this SBA possibility out there for
the guaranty. Bank loan proceeds, SBA loan proceeds. Not
until there is a forgiveness application or a default does the
SBA loan proceeds or the SBA provision even kick in. He said
that in his testimony.
Now, there are a lot of different versions of these
agreements; but when you look in these agreements, it's at
75 percent of the PPP loan proceeds shall be used for payroll
costs, not more than 20 percent of non-payroll costs may by
forgiven. Why do you think there's may be forgiven, not a
guaranty?
And the testimony that was in trial was from Kyle
DeCicco with regard to the forgiveness, is that Sanibel Captiva
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Bank has their own third party reviewing the forgiveness
application. So, when it's submitted, they have a third party.
That was the testimony. It's not as if, oh, willy nilly, just
send us some documents and we'll waive your $2 million, we'll
forgive you. No.
Then, after Sanibel Captiva Bank has their third
party approve it, if they do approve it, then it gets submitted
to the SBA, and then the SBA, at that point, makes their
determination. There's a lot of steps here to even trigger
whether or not that SBA loan proceed is gonna be invoked.
Now, the government loves showing you the couple few
documents where it says the borrower will use the proceeds of
this PPP loan solely for. Now, of course, I'll show what you
Mr. DeCicco said, and you use your own memory, but we had a
conversation about how, right there, the CARES Act disclosure,
discussing about the disclosure of the CARES Act, which is the
part that is the forgiveness of the loan, and invoking that
forgiveness. And talking about that.
Again, remember your own recollection; but when I was
asking specifically about the boat, does the boat apply to this
CARES Act disclosure document, use your memory, but that
doesn't apply. And it doesn't apply because there is no
forgiveness. There is no invoction of the use of proceeds of
forgivable assets. Expenses, I'm sorry.
Now, the CARES Act disclosure is specifically a
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CLOSING ARGUMENT BY MR. DICKERSON
disclosure. It's not talking about what the actual money was
going to be used in the loan. Promissory note, loan agreement.
That's Sanibel Captiva Bank's obligation with Target Roofing.
Then you have the other documents, which you will see in that
packet, are SBA driven for the forgiveness.
Now, there is clear evidence, undisputable evidence,
that there is no demand from the SBA for repayment of any
monies from Target Roofing. And whether the government wants
to say, well, we're here as a criminal prosecution, that's what
we're doing, wouldn't you think the SBA would have demanded
this money back if, truly, this was part of SBA loan proceeds?
And wouldn't you think, if Sanibel Captiva Bank thought they
were out of this money, thought that they were harmed, thought
that they couldn't get this money back, they would be doing one
of two things? They'd be telling Mr. Crowther pay us the money
back.
I didn't see any texts, any e-mails, from Mr. DeCicco
after, as the government conveys it, he discovered the boat. I
didn't see him say we're taking the loan back. I didn't see a
letter, a text, where he said you used these proceeds
illegally, wrongfully. No. In fact, his testimony up here is
completely opposite of that. No demand. Mr. DeCicco is the
number two guy, Sanibel Captiva Bank, the number one guy
handling all the PPP. No demand.
Again, it's just government witnesses, it's their
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CLOSING ARGUMENT BY MR. DICKERSON
witnesses, and their witnesses are saying no demand, these are
bank loan proceeds, they are not SBA loan proceeds, and there's
no forgiveness filed. Oh. And again, there's no earmarking.
Loan agreement. Exhibit 14. A will discussing
forgiveness, and then may result in the borrower having to
repay the loan. It's all going whether or not the borrower
submits for forgiveness. And if the borrower does not submit
for forgiveness, ladies and gentlemen, he's gonna repay that
loan. And, as Mr. DeCicco says, it comes due November 1st.
And here's another document we provided you, our
Exhibit J. It's actually the time stamp completion of the
entire loan packet. And as Kyle stated, as Mr. DeCicco stated,
I'm sorry, he was signing a lot of these, so not necessarily
did he sign every one of them. But if you look at that, 12:45,
he actually ends up -- and that document's gonna go back with
you -- executing all the documents in 30 seconds, 35 seconds.
Casey Crowther, with his e-Signature, completed the entire loan
packet, 50 pages, with the e-Signature, in roughly 55 seconds.
And that's what I'm talking about, ladies and
gentlemen. That question right there. If the company doesn't
file for forgiveness, they just pay the loan back; correct?
That's correct.
Oh. But that's not Mr. DeCicco. That's Mr. Miller,
from the SBA. Who you'd think, if he disagreed with that . . .
but Mr. Miller, the government's witness, who's in charge of
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CLOSING ARGUMENT BY MR. DICKERSON
the SBA and this program, said, if the company doesn't file
forgiveness, they just repay the loan? Yes.
Number two indisputable fact. There are no loan
proceeds, SBA loan proceeds, to Target Roofing in the Sanibel
Captiva loan. Target Roofing is in good standing with Sanibel
Captiva Bank.
Again, if, per the government's theory, this was this
abusive misuse of funds, you bought a boat, and we didn't know
it, well, we did, 'cuz there's a wire that goes out, and three
of our employees actually sign off on it, and it said Marina,
Sara Bay Marina. Kind of hard not to believe that the bank
wouldn't know that it is a marina. In fact, somebody told
Mr. DeCicco, per the government's theory, and that's why
Mr. DeCicco had these conversations in May. There was no
hiding it.
As far as equipment, the government wants you to
believe, oh, that's concealing it. Again, it says Sara Bay
Marina. I haven't heard the government say oh, but equipment,
that's a PPP use. He was concealing that as a PPP use because
this is out of the PPP account. Because equipment is not a
forgivable expense. All this other concealing, the purpose of
the wire, it's all smoke. It's a sideshow. You gotta look at
the documents. That's the real show. That's the real thing.
The Judge told you, numerous times, you got the best
seat in the house. You're gonna have to read the documents.
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CLOSING ARGUMENT BY MR. DICKERSON
But you heard the testimony. No loan, SBA loan proceeds in
this loan.
Mr. Miller, again, discussing that only if there's
forgiveness does the money come out of SBA, and then that
invokes the forgiveness, that invokes the PPP CARES Act.
Mr. Miller answered that question, no SBA proceeds going to the
borrower.
Now, the government, again, with this earmarking
theory, and showing you different provisions of the actual
guidance. I wasn't asking or talking about sum, the sum of
total costs, the sum of total expenses, because I like the
word. As the government just pointed out, they think, they
just told you, Exhibit 16 is very important. That's when Kyle
DeCicco sent the IFR, the first IFR, to Mr. Crowther. But what
they don't do is actually show you the entire IFR and the
provisions of the IFR.
You're gonna have that IFR, and you can read it. And
I'm gonna show you what it says here in a bit. But what I'm
gonna tell you it says is, for forgiveness, it's the sum of all
proceeds. Just like Mr. Miller believes. No SBA loan proceeds
in this loan.
Now, the government goes over and over again about
the purpose to protect the employees. Payroll protection.
$3,100,000 is the testimony that came out of three witnesses in
this trial. Now, again, when you look at the exhibits, look at
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CLOSING ARGUMENT BY MR. DICKERSON
the fact that C8 and C9 are the exhibits we put forward. Okay?
Those exhibits show that there are $3 million.
More importantly, Mrs. Knott, the summary witness,
provided this nice report, and the government relied upon it,
and the government wants you to review it. Remember I threw my
iPhone up there for her to do the calculation. When you
calculate 4/20/2020, which is after the monies were received
from Sanibel Captiva Bank, you go down just to 8/31/2020,
because that's where their report ends. Now, the covered
period goes through September. But that's just where the
government report ends. It was over $3,100.
This shows you actually what happens with payroll.
And if you look at that decline, and if you look in March, look
how small the payroll is, and then it shoots back up, that's
how you get $3.1 million from April to August.
Another indisputable fact. The government wants you
to believe there's misrepresentations. There are no
misrepresentations. On the April 13, 2020, application, first
and foremost, you're gonna see the e-mail from Brad North,
exhibit 167. Brad North, who is in charge of getting all the
documents together, getting the application together. You've
heard the witnesses -- the government's witnesses. He's the
person. He is that contact. In fact, he's the primary
contact, when you look at it, on the actual application.
But when you look at what the government wants you to
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CLOSING ARGUMENT BY MR. DICKERSON
believe is the issue, under the representations and
authorizations, all SBA loan proceeds will be used only for
business related purposes. Mr. Miller and Mr. DeCicco have
both testified that the money that Sanibel Captiva Bank loaned
to Target Roofing were not SBA loan proceeds.
Now, the government has also brought in, on one of
these sideshow arguments, that . . . Mr. Crowther and Target
Roofing, they weren't entitled to this money. They didn't show
their need. Normally I don't do this, but I'll go back to that
slide. That payroll, that declined. I don't think you just
have your payroll decline like that unless you're getting rid
of employees because you don't have business.
But Mr. Miller, again, the government's witness, SBA,
certification of the borrower, it's subjective. It's in the
eyes of the borrower. It's not in the eyes of the United
States Government 6, 9, 12 months later. The SBA witness says
it's in the eyes of the borrower.
You gotta put you guys back in those shoes back in
March of last year, when we're being told you have to stay in
your house. You can't even get a medical procedure until
May 15th. You can't go out of your house. You thought there
was going to be some automatically end of coronavirus?
Businesses were shut down. That's the state of mind that was
going on at that point in time.
When I asked Mr. DeCicco whether he, who is the bank
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CLOSING ARGUMENT BY MR. DICKERSON
representative for these applications, for these loan
documents, he's the one that submits it to the SBA to get that
SBA loan, because he signed the document on Exhibit 7, saying
hey, we're doing this loan. If they don't file for
forgiveness, or they default, then we're going to want you guys
to kick in on this. He said there's no misrepresentation on
Exhibit 8, the document the government thinks has a
misrepresentation.
There was no loss or injury to Sanibel Captiva Bank.
Indisputable fact number five. Again, use your memory, but I'm
telling you Mr. DeCicco said that the bank hasn't lost money,
they're not a victim, they have not been harmed. He does not
feel that there was any misrepresentation. No injury. You
know why. Because the loan, first payment, doesn't come due
until, he said, November. The loan was not forgiven and the
first payment was missed, they can invoke the guaranty. It
hasn't happened yet.
This is really a case where the government jumped the
gun. They arrested Mr. Crowther because of a boat. They
didn't introduce any payroll records here. Their summary
witness didn't provide you any summary of forgivable payroll
records. They just said here's these records.
Ladies and gentlemen, the government didn't want to
know all the facts. They didn't want to know that facts
matter. They just wanted to react. And they overreacted. And
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CLOSING ARGUMENT BY MR. DICKERSON
that's why, in this trial, they're not keeping you focused on
the actual matter, the loan documents, and what they say,
they're doing these sideshows. Roughly 2021 is when that loan
first payment is due by Mr. DeCicco.
Indisputable fact number six, there was and is
confusion with the implementation of the Paycheck Protection
Program. I don't think anybody could disagree with that. The
witnesses we've heard, the Flash Report, SBA, Mr. Miller, had
to remind him of that Flash Report last year, where his office
Inspector General came back and said they don't necessarily
align with forgiveness. You have that report, you'll be able
to take it back there. There are a lot of pages on that
40-page document that describe and set forth how the CARES Act
says may; the interim rule, are to be used for.
Remember, a regulation is the agency's interpretation
of the law. These IFRs are the interpretation by the SBA of
the law. Mr. Miller testified not until there's forgiveness or
nonpayment do the SBA proceeds even hit this conversation. We
shouldn't be having it.
Mr. DeCicco, from his recollection, roughly 50 IFRs
to follow. And they do change. There's been a lot of changed
IFRs just since last April 1st. We're not even a year out.
All the different revisions, suggestions, and interpretations
of one statute by one agency.
Now let's go to Miss Knott.
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CLOSING ARGUMENT BY MR. DICKERSON
She paraphrased it as I'm doing a benefit to Crowther
roofing -- excuse me, Target Roofing and Mr. Crowther. And I'm
doing him a benefit in giving him these forgivable expenses in
my analysis. She didn't even include some of the most basic,
like healthcare, which was initiated on April 1st. And you've
got that interim rule with Mr. Kyle DeCicco's e-mail, it's in
16, talks about payroll and healthcare.
She didn't include all of them, because she didn't
know. She didn't read them all, number one. And when she
tries to give this illusion that she knows something about it,
and she starts getting questioned, she doesn't. She just
included the items she wanted to. But most importantly, when
she was pushed, I'm not here as an expert on the PPP
forgiveness. Nobody was here as an expert on the PPP
forgiveness. Nobody. Not even Mr. Miller.
Now, going to the confusion, Kristen DiIorio, when
asked about the Steve Adkins wire, where it does say loan
proceeds, she even thinks, from her opinion as just a branch
manager, not an expert, but as her opinion, she would think
that that would be a presumable expense -- a permissible
expense.
This consonant right here, I'm going to discuss that
later, but the purpose of that wire, just remember, Kristen
said that the purpose of the wire doesn't matter to bank. They
don't rely upon it. It's like the memo in the check.
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CLOSING ARGUMENT BY MR. DICKERSON
Now, the Judge is going to talk to you about good
faith and a good-faith defense. Part of that good-faith
defense is the fact that Mr. Crowther relied upon his team,
management team, you heard testimony of that. Mr. DeCicco did
the same thing. He talked about that. You see these e-mails
going back, you've got Mr. DeCicco on the e-mail, you've got
Casey Crowther on the e-mail, but then you also have both of
their teams communicating. And you have Brad North
communicating with the Sanibel Captiva team. You have Evelyn
Portinari communicating.
Then you have the fact that what is the rule right
now? They're changing all the time. But if I don't file for
forgiveness, as Mr. DeCicco agreed and Mr. Miller agreed, I've
just a loan with the bank, and just paying back that loan when
it becomes due.
I've already hit on this, but in my presentation I
went a little bit early, but no requirement for segregating or
earmarking loan proceeds. There has not been any testimony
with regard to that. And you know, if there was, if there was
IFR or guidance that existed, that would be shown to you. It
doesn't. Mr. Miller from the SBA, talking about the fact,
doesn't recall anything requiring that. Kristen DiIorio, she's
asked. No, there's nothing required, any segregation. In
fact, no requirement at all.
Loan forgiveness, if and when sought, will be
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CLOSING ARGUMENT BY MR. DICKERSON
provided for the sum of documented payroll costs, covered
mortgage interest payments, covered utilities, and other
forgivable expenses during the covered period. That is
indisputable fact number eight, ladies and gentlemen. The sum,
during the covered period. It's eligible for forgiveness if
one applies.
Exhibit 16. Mr. Reichling's been showing you that
document -- well, not the full document, just a portion of
it -- in his presentation. You're going to have the full
document. I can't pull the full document for you right now,
but there's the title of it, and you'll see it when you go back
to the jury room. But, in that document, loan forgiveness will
be provided for the sum of documented payroll costs, covered
mortgage interest, and it gives the entire aspect, at that
point in time, on April 1st, what the SBA thought that the
CARES Act, which was just passed four days before, three days
before, included.
But the sum. Didn't say the earmarked funds. It
didn't say payroll earmarked use from a loan bank proceed.
Doesn't say that. That's what the government wants you to
believe. They want you to believe this is earmarked.
Miss Knott's testimony. When I had her review her
payroll summary, 3 million -- that's my bad error right there,
ladies and gentlemen. That's supposed to be $3 million that
she found. So there's a perfect example of what the Court's
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CLOSING ARGUMENT BY MR. DICKERSON
saying. Please use your own recollection. She said she had
over $3 million that she counted. You guys can count, at that
table back there, her chart, and you'll see it's over
3 million.
The other person that testified, which was quite
clear, Colleen Clark, also talked about the payroll. She's the
one that came in and actually, WBS, talked about how much money
was paid in payroll. You had the charts, how much -- the WBS
chart, and that's the chart that Miss Knott is summarizing.
And also, remember, on the story of these 39 fake
employees, what she also said. Miss Clark said that WBS has
that money. Those checks were not cashed. Deposited any
funds. The money is still with WBS. So I guess the
government's theory of I'm going to just throw a couple hundred
thousand, or in this case a hundred thousand dollars away, or
is the real story just not in front of you? The facts matter.
Not stories. Facts.
Oh. I can't miss that one. I'm sorry.
Mr. Miller, when asked about . . . 24-week period,
sum of proceeds being paid, that's acceptable for forgiveness.
Indisputable fact number nine. There are no proceeds
of criminal activity. There is no loss or injury to Sanibel
Captiva Bank, and there were no misrepresentations on the
applications submitted to Sanibel Captiva Bank, as there are no
SBA loan proceeds. Don't worry, I'm not going to show you any
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CLOSING ARGUMENT BY MR. DICKERSON
new slides, because I just showed you all the slides that
demonstrate that.
The purpose of the wire field with Sanibel Captiva
Bank is not relied upon by the bank. It is akin to the memo
field on a check. Indisputable fact number ten. I don't think
I would want to be scrutinized about what I put on my memos to
my checks from ten months ago, 11 months ago. I don't even
know what I put on the checks sometimes. I know I have some
standard. But imagination being judged by that?
You have your own ability to track your monies.
There's no law requiring you you have to tell the bank
everything you're doing with your own money. When you're the
sole shareholder of a company, it's your money as well. You're
responsible for it. You're responsible for the taxes.
And when Miss DiIorio was asked about the purpose of
the wire, it's akin to the memo line. They don't rely upon it.
They've got three people reviewing it. There's no concealment.
They know where the money was going.
They also know when Mr. Adkins received his money.
He's another member of their -- customer of their bank.
There's no where is it going? It's a scheme. I don't know.
It's going to Mr. Adkins. And Miss DiIorio, in her testimony,
as I showed earlier, she even thought it was a permissible
allowable expense.
Credibility of the witnesses. All the witnesses here
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CLOSING ARGUMENT BY MR. DICKERSON
are the government's witnesses. The Judge is going to instruct
on the credibility and your evaluation of their credibility.
And, in doing so, like when I started off this summation, it's
your common sense and what you saw. The interaction back and
forth. Sometimes the questions were being asked in a way that
there was no other way to answer for the witness. And then,
when the witness was given the opportunity to answer, it was
quite refreshing what they had to say.
But my question is, does the government care about
the facts? The cash. Did they bring up the cash to sell the
boat for 385, $400,000? Nope. Only after we did.
The marina agreement. I couldn't quite get that one.
The marina agreement, it's Government's Exhibit 1. They didn't
introduce it, we introduced it. I don't understand that. And
it's really not the agreement, it's the note summary of
reaching the agreement from Ryan Bradley.
And Ryan Bradley, remember him. He was talking about
how that boat, he thought he was gonna get a commission on it.
And Ryan was a new employee in February of that year. He
didn't have the relationship that Peter did with Mr. Crowther.
He didn't have that knowledge that Mr. Crowther has been buying
and selling boats, Mr. Peterson said since 2017. He didn't
have that. But he thought he was gonna get a nice commission
on this boat. He was a little upset about it. But he was
going to say, great deal on that boat. Great deal on that
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CLOSING ARGUMENT BY MR. DICKERSON
boat. And he wouldn't have lowered it that much.
Now, we talked about the loan packet defense, how
they -- our Defense Exhibit 1. We are giving you the entire
documentation. Government's Exhibit 167, I want you guys to
take a careful look at it. That's that e-mail that I'm
describing that Brad North sent on October 13th at 5:38 or
5:39 p.m. He sent it to the entire SanCap team. He's got the
team from Target Roofing on it, that they're resubmitting all
their payroll, and just remember what the government showed
you.
The government showed you the one document, the
application. And that's the document that they're claiming
there's a misrepresentation, the document that has the SBA loan
proceeds representation affirmation. Not anything else but the
SBA loan proceed.
You'll see all of the documents that were submitted
to the bank on April 13th, and you tell me if you think if that
is somehow not being full disclosure to a bank.
Summary witness? Miss Knott? I mean, I'll hit it real
quick down here, but that was interesting testimony. Never
heard that before. The cash. Government doesn't want you to
know about the cash. They even excluded the cash in a summary
witness even though the government knew about the cash.
The government didn't conduct a summary witness analysis
of the books and records of Target for April 24th. No. They
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CLOSING ARGUMENT BY MR. DICKERSON
just went and picked Sanibel Captiva Bank accounts, just right
there. The pocket analogy? I was using that, Mr. Reichling
used it.
The difference is, when you do the pocket analogy when
you do an entire bank analysis, yes, you have the one pocket
here, which is a PPP fund that has no requirement for
segregation or earmarking; but when you're going to look at the
other comparison, it's not just one bank. It's more like
wearing cargo pants, multiple pockets down the side of your
pants because there's multiple bank accounts.
Even the government's witness admitted that, Miss Knott.
Cash isn't going to show up on a bank statement, Miss Knott
said. Everybody knows that. Your own cash is sitting either
in your safe, your purse, wherever you want it kept. In a
business, you've got petty cash. Petty cash is stored. So
none of that's in that analysis. Wouldn't have the knowledge
of any cash payments. I only reviewed bank statements, so I
don't know of any cash payments. Just a picture of Sanibel
Captiva Bank.
And honestly, ladies and gentlemen, we were trying to
figure out when I was going to do this cross on her, why are
these bank accounts only being included? Why isn't this just a
pure review? Because there isn't a title to the document. It
didn't say Sanibel Captiva Bank analysis. It was giving the
impression of what monies were on hand, and that's what the
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government wanted you to believe. That's what they wanted you
to believe, that that's the money that Mr. Crowther had. Not
that he could pay for this boat with other means. They don't
want you to know that.
After confirming it, not a picture of the whole thing,
but more importantly, if Miss Knott, as a summary witness, was
going to conduct an entire financial picture summary report,
wouldn't be the one she provided, it would be a complete
different chart.
And I couldn't go into every document, but I mean we
heard her. She was running out of time. Summary witness,
former employee, contract employee of the U.S. Attorney's
Office, comes in to testify under oath that these summary
witness reports are accurate and complete. I'm not the one
that asked her what are these reports for, and she says they're
all from January 1st to September 2nd. And then, low and
behold, they're not.
What did she not include? We already know she hand
picked expenses for her definition of forgivable expenses that
she's not an expert, doesn't know. What else did she forget,
what else did she not include? And that's their last witness,
trying to convince there's some nefarious act. Ooh, we're
getting a summary witness.
Again, ladies and gentlemen, don't believe the side
stories. That's why they had her to come in and testimony
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CLOSING ARGUMENT BY MR. DICKERSON
testify. Thank goodness she did that analysis on the payroll
so you could see that firsthand from her that the payroll was
over $1.3 million from April 20th to September 2nd. Who knows
what it was the following 30 months -- I mean 30 weekdays. And
let's not forget, this -- what she did here, on this report,
and testifying, that was her side job, that she already works
50 hours a week elsewhere.
And while I have -- the aerial shot is just the direct
examination of Miss Portinari. Did you see John Doe? Did you
see Jane Doe? Why didn't you see John Doe? Why didn't you see
Jane Doe? It was always no, no, because she couldn't expand.
Then, on cross, when Ms. Waid, explain to the ladies and
gentlemen of the jury, well then you find out that she was
staying in her office, she doesn't associate with -- I think
she said she knew of 50 people that she could identify; but,
beyond that, there's so many workers coming in and out, doing
roofing projects, she's not gonna see them.
But, ladies and gentlemen, this is a five-acre piece of
property. Five acres. You got the aerial shot back there with
you, that you can look at. You can look at the size of the
cars. You can look at the big house that's in the back. That
has admin storage. You think, the front of the office
building, you're going to have any idea what's going on in the
warehouse, let alone what's going on back there? No.
But that's not what the government wants you to believe.
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CLOSING ARGUMENT BY MR. DICKERSON
The government wanted you to just believe that she didn't see
anybody. Again, smoke. They're just making this up, the side
stories.
The only thing I'd want to say that I didn't necessarily
hit, is Mr. Adkins. When we look at good faith, when we look
at interaction, the wire to Mr. Adkins, the government puts up
the stock redemption agreement. Mr. Adkins, a businessman in
his '50s, kind of took Mr. Crowther on as a . . . mentoring.
Do you remember what he said? Well, the government
actually put it in evidence. He reached out to Casey Crowther
and says hey, you've got that loan with me, it's 7.5 percent
interest. This interest is only one percent. It's a loan.
And he said, on cross, that those are just bank loan proceeds,
not SBA.
So when a mentor who used to be your business partner is
even telling you this is what you need do, get that loan, you
don't know what's gonna happen, and that's a good faith,
relying on somebody you looked up to and you were a business
partner of.
Ladies and gentlemen, there is not evidence beyond a
reasonable doubt, you cannot be sitting here thinking, you
know, these are my common sense, my thoughts that that heavy
burden has been met by the government, that when Miss Knott was
the last witness, that's the case.
Look at the witnesses who came in. Mr. Miller, SBA.
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Good witness for us. Kyle DeCicco? I mean, he's the guy.
He's the guy. And he said there's no misrepresentations on the
application. That's who you have to rely upon. That's what he
said. He's not happy that Casey bought a boat. He agrees with
that. But that's not a misrepresentation.
Ladies and gentlemen of the jury, we ask you to go back,
review the evidence, the facts matter, and review the facts,
not just the stories that have been told. Review the facts.
You've had the front-row seat here, second, third row. Pay
attention, and focus on the facts. We ask you to return a
verdict of not guilty on all four counts.
And thank you again for your time and service.
THE COURT: Thank you.
Jury still good? All right.
Mr. Reichling? Or Mr. Leeman.
MR. LEEMAN: Yes, Your Honor. Thank you. I'm going
to need the ELMO, please.
THE COURT: And you may proceed.
MR. LEEMAN: Thank you, Your Honor.
Mr. Dickerson said Mr. Miller was a good witness for
the defendant. My memory, and you need to rely on yours, of
Mr. Miller's testimony is that, through all the various changes
of the PPP program, nothing ever expanded the permissible use
of funds in a way to allow the purchase of a boat for your own
use. Mr. DeCicco, indicated as a good witness for the
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FINAL ARGUMENT BY MR. LEEMAN
defendant, also confirmed the program has never been expanded
in a way that would allow the purchase of a boat.
And let's not forget here, folks, we're not talking
about how the program changed. Your job is to figure out, when
Mr. Crowther applied for a loan back in April of 2020, whether
he was lying to the bank, at that time, to try and get a loan.
Whether he was deceiving them then. Doesn't matter that the
law changed, because it never changed it anyway; but the real
question is what happened in April? What was the law in April?
You couldn't buy a boat in April. You can't buy a boat, right
now, under the PPP program. You never could.
So a lot of things have changed. Some of them are
relevant to this case. How long you had to spend the proceeds,
from 8 to 24 weeks, that changed. That's relevant. But you
don't just get to come up here and say there's 51 interim
rules, how confusing. You know who wasn't confused, ever,
about how to use this money, and what was appropriate? Casey
Crowther.
Correcting the bank's own loan PPP calculator.
E-mailing everybody he's on top of it. Calling a management
strategy meeting when the law is about to change. Knowing
enough to hire fake employees to boost payroll, and knowing
enough to fire them on June 5th, when the law changed. Guess
who did that. Guess who knew that. Guess who wasn't confused.
Mr. Crowther.
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FINAL ARGUMENT BY MR. LEEMAN
I don't have enough time to respond to all of the
different theories of how the CARES Act works; but Mr. Crowther
didn't believe any of those theories about the CARES Act. He
knew you couldn't buy a boat with that money. He tried to
conceal it. He went so far as to hire fake employees to ensure
that his boat purchase was for free. Okay?
We can make a lot of hay about whether the bank
relies on a . . . description of a wire transfer or not,
whether the bank really cares about it about. Do you know who
did care about it? Enough to do it? This guy, sitting right
here. Casey Crowther. He cared enough to do it. And it's
wrong. It's false. It's a lie. That tells you about
something what was going on up in his head at the time.
Now, what whatever one wants to say about the PPP
program, it is not a program in which anybody that otherwise
qualified could get a loan and use it on anything with a
one-percent interest rate. And that's the defendant's argument
about what the CARES Act is. As long as you never apply for
forgiveness, you could have got a loan at one percent, and
spent it on anything. Does that seem common sense to you?
Does that align with anything you've seen in the documents?
Let's just show you the official SBA form. All
right? I'm going to show you something. Forgiveness?
Forgiveness does matter in this case, somewhat, because it
relates to what the government has proven to you this gentleman
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FINAL ARGUMENT BY MR. LEEMAN
was trying to do. But forgiveness in the use of proceeds, the
permissible use of proceeds, are different. Are different.
There are things, whether you apply for forgiveness under this
loan that you are authorized to use them for, and there are
things which you are not, whether or not you apply for
forgiveness.
Those things are: The funds will be used to retain
workers and maintain payroll or mortgage payments, lease
payments, and utility payments. It does not say, if you apply
for forgiveness, this is what you have to have used the funds
for. No. It's right out of the gate, folks. It's right out
of the gate. When you get the money, you gotta use it for
those purposes.
And you know why it's right out of the gate? Because
it says, if you don't, you can be prosecuted for fraud.
There's no ambiguity there. It doesn't say if you don't use
these things for those purposes, and you apply for forgiveness,
then you can be prosecuted for fraud. No, it doesn't say that.
Use your common sense. The PPP program, the money's
supposed to be used for payroll, rent, utilities, and the like.
That this gentleman hasn't yet applied for forgiveness makes
not a dime of sense.
I guess the theory is, if it's just a loan, there
can't be any fraud. If it's not a -- well, if it's just a
loan, well then there can't be any fraud. Well, how does that
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FINAL ARGUMENT BY MR. LEEMAN
make any sense, folks? Most loans aren't forgivable. Most
loans aren't forgivable. Is the theory really you can't commit
bank fraud upon a not forgivable loan? What if Mr. Crowther
wanted to buy a boat with a one-percent loan, and he defrauded
the bank to do that? An unforgivable one-percent loan. That's
still a crime. That's still a crime.
The law is not confusing, folks. It says, here, it
says -- this is Government's Exhibit 8, it says in Government's
Exhibit 6, it says in Government's Exhibit 10, multiple others,
you will use the funds of this loan from Sanibel Captiva Bank.
No one has ever alleged this is an SBA loan. That's
not part of the government's case. This is an SBA guaranteed
loan. That's about the first sentence you heard out of my
mouth in opening statement. This is a guaranteed loan. This
is the bank's money. This is a bank fraud case. This
gentleman hasn't been charged under some statute for defrauding
the government. He's charged with defrauding a bank. This
isn't confusing.
The payroll numbers. Let's talk about the payroll
numbers briefly. The $3.1 million, whatever it is she didn't
use to the penny. You don't have to trust Mr. Crowther's bank
payroll numbers farther than you can throw them. He created 39
fake employees that were found during the course of this
investigation to inflate them. He claims there's evidence in
worth 3.1 million dollars. You're not required to accept a
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JURY CHARGE
cent of that as true. Some of it probably is. It is a real
company. How much he spent? You're not required to rely on
that. And it's besides the point. It's besides the point.
The question isn't whether he paid enough payroll, the question
is whether he lied to a bank. And he did. And that is what
he's charged with.
I just make another point. No, I'm not gonna make
it.
Folks, when I stood up in opening, I walked you
through exactly the evidence the government intended to show
you. All of that evidence has come in. All of it. It's over
there. It's in your heads. It's the testimony you heard. The
government's proven its case, and we're asking you to return a
guilty verdict on all four counts.
THE COURT: Thank you.
Ladies and gentlemen, I have maybe 25 to 30 minutes
of instructions. Are you good, or do you want a break? Good
to go? Okay.
Members of the jury, it is my duty to instruct you on
the rules of law that you must use in deciding the case. After
I've completed these instruction, you'll go to the jury room
and begin your discussions, what we call your deliberations.
You must decide whether the government has proved the
specific facts necessary to find the defendant guilty beyond a
reasonable doubt. And I will tell you now that the
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instructions, a written copy will go back with you, so don't
feel compelled to take notes. You'll get the instructions
themselves. Of course, you can take notes if you want.
Your decision must be based only on the evidence
presented during the trial, and you must not be influenced in
any way by either sympathy for or prejudice against the
defendant or the government.
You must follow the law as I explain it, even if you
do not agree with the law, and you must follow all of my
instructions as a whole. You may not single out or disregard
any of the Court's instructions on the law.
The indictment, or formal charge against a defendant,
is not evidence of guilt. The law presumes every defendant is
innocent. The defendant does not have to prove his innocence,
or produce any evidence at all.
A defendant does not have to testify, and if the
defendant chose not to testify, you cannot consider that in any
way while making your decision.
The government must prove guilt beyond a reasonable
doubt. If the government fails to do that, you must find the
defendant not guilty.
The government's burden of proof is heavy, but it
does not have to prove a defendant's guilt beyond all possible
doubt. The government's proof only has to exclude any
reasonable doubt concerning the defendant's guilt.
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A reasonable doubt is a real doubt, based upon your
reason and common sense, after you have careful and impartially
considered all of the evidence in the case. Proof beyond a
reasonable doubt is proof so convincing that you would be
willing to rely and act on it, without hesitation, in the most
important of your own affairs. If you are convinced that the
defendant has been proved guilty beyond a reasonable doubt, say
so. If you are not convinced, say so.
As I said before, you must consider only the evidence
that I have admitted in the case. Evidence includes the
testimony of witnesses and the exhibits admitted. But anything
the lawyers say is not evidence, and is not binding upon you.
You should not assume, from anything I have said,
that I have any opinion about any factual issue in the case.
Except for my instructions on the law, you should disregard
anything I may have said during the trial in arriving at your
own decision about the facts. Your own recollection and
interpretation of the evidence is what matters.
In considering the evidence, you may use reasoning
and common sense to make deductions and reach conclusions. You
should not be concerned about whether the evidence is direct or
circumstantial.
Direct evidence is the testimony of a person who
asserts that he or she has actual knowledge of a fact, such as
an eyewitness. Circumstantial evidence is proof of a chain of
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facts and circumstances that tend to prove or disprove a fact.
There is no legal difference in the weight you may give to
either direct or circumstantial evidence.
When I say you must consider all of the evidence, I
do not mean that you must accept all of the evidence as true or
accurate. You should decide whether you believe what each
witness had to say, and how important that testimony was. In
making that decision, you may believe or disbelieve any
witness, in whole or in part.
The number of witnesses testifying concerning a
particular point does not necessarily matter. To decide
whether you believe any witness, I suggest that you ask
yourselves a few questions:
Did the witness impress you as one who is telling the
truth? Did the witness have any particular reason not to tell
the truth? Did the witness have a personal interest in the
outcome of the case? Did the witness seem to have a good
memory? Did the witness have the opportunity and ability to
accurately observe the things he or she testified about? Did
the witness appear to understand the questions clearly, and
answer them directly? Did the witness's testimony differ from
other testimony or other evidence?
You should also ask yourself whether there was
evidence that a witness testified falsely about an important
fact, and ask whether there was evidence that, at some other
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time, a witness said or did something, or did not say or do
something, that was different from the witness's -- from the
testimony of the witness during this trial.
But keep in mind that a simple mistake does not mean
a witness was not telling the truth as he or she remembers it.
People naturally the end to forget some things or remember them
inaccurately. So if a witness misstated something, you must
decide whether it was because of an innocent lapse of memory,
or an intentional deception. The significance of your decision
may depend on whether the misstatement is about an important
fact or about an unimportant detail.
You have been permitted to take notes during the
trial. Most of you, perhaps all of you, have taken advantage
of that opportunity. You must use your notes only as a memory
aid during deliberations. You must not give your notes
priority over your independent recollection of the evidence,
and you must not allow yourself to be unduly influenced by the
notes of other jurors. I emphasize that notes are not entitled
to any greater weight than your memories or impression about
the testimony.
The second superseding indictment charges four
separate crimes, called counts, against the defendant. Each
count has a number. You will be given a copy of the second
superseding indictment to refer to during your deliberations.
I will refer to the second superseding indictment simply as the
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indictment. I will now explain the law governing these
offenses.
First, Count 1, bank fraud. Count 1 alleges that
Casey David Crowther committed the federal offense of bank
fraud between April, 2020, and February 20, 2021.
Specifically, Count 1 alleges that Mr. Crowther entered into a
scheme to defraud the Sanibel Captiva Community Bank and to
obtain money from that bank by submitting a false loan
application and revised loan application on behalf of his
company, Target Roofing and Sheet Metal, which knowingly
contained false information, in order to obtain a loan from the
Sanibel Captiva Community Bank which was guaranteed by the
United States Small Business Administration, the SBA, pursuant
to its Paycheck Protection Program, what we've called the PPP.
It is a federal crime to carry out or attempt to
carry out a scheme to defraud a financial institution, or to
obtain any monies owned by or under the custody or control of a
financial institution, by means of false or fraudulent
pretenses, representations, or promises. There are two
alternative methods for establishing this offense: Proving a
defendant carried out or attempted to carry out a scheme, one,
to defraud a financial institution; or, two, to obtain money
owned by or under the custody or control of a financial
institution by means of false or fraudulent pretense,
representations, or promises.
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Where a statute specifies multiple alternative ways
in which an offense may be committed, the indictment may allege
the multiple ways in the conjunctive; that is, by using the
word "and." If only one of the alternatives is proven beyond a
reasonable doubt, that is sufficient for conviction so long as
you agree unanimously as to that alternative. The verdict form
given to you therefore will address both alternative methods of
establishing bank fraud.
As to the first alternative method, the defendant can
be found guilty only if all of the following facts are proved
beyond a reasonable doubt: One, the defendant knowingly
carried out or attempted to carry out a scheme to defraud a
financial institution; two, the defendant intended to defraud
the financial institution; and three, the financial institution
was federally insured.
As to the second alternative method, the defendant
can be found guilty only if all of the following facts are
proved beyond a reasonable doubt: One, the defendant knowingly
carried out or attempted to carry out a scheme to get money,
assets, or other property from a financial institution by using
false or fraudulent pretenses, representations, or promises
about a material fact; two, the false or fraudulent pretenses,
representations, or promises were material; and three, the
financial institution was federally insured.
A scheme to defraud includes any plan or course of
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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 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 a loan without intent to
cause loss or injury is not sufficient to prove intent to
defraud.
The government does not have to prove all the details
alleged in the indictment about the precise nature and purpose
of the scheme. It also does not have to prove that the alleged
scheme actually succeeded in defrauding anyone. What must be
proved beyond a reasonable doubt is that the defendant
knowingly attempted or carried out a scheme substantially
similar to the one alleged in the second superseding
indictment.
As you know, the parties have stipulated that Sanibel
Captiva Community Bank is an insured financial institution at
all material times.
A statement or a representation is false or
fraudulent if it is about a material fact that the speaker
knows is untrue, or makes with reckless indifference as to the
truth, and makes with intent to defraud. A statement or
representation may be false or fraudulent when it is a
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half-truth, or effectively conceals a material fact, and is
made with the intent to defraud.
A material fact is an important fact that a
reasonable person would use to decide whether to do or not do
something. A fact is material if it has the capacity or
natural tendency to influence a person's decision. It does not
matter whether the decision maker actually relied on the
statement, or knew or should have known the statement was
false.
As to Count 2, which alleges a false statement to a
federally insured institution, it is a federal crime to
knowingly make a false statement or report to a federally
insured financial institution. Count 2 alleges that Casey
David Crowther committed the federal offense of making a false
statement to the Sanibel Captiva Community Bank on or about
April 13th of 2020.
Specifically, Count 2 alleges that Mr. Crowther
knowingly made false statements in the PPP revised loan
application regarding the intended use of the loan proceeds in
order to influence the actions of the Sanibel Captiva Community
Bank.
The defendant can be found guilty of this crime only
if all the following facts are proved beyond a reasonable
doubt: One, the defendant made a false statement or report;
two, defendant did so knowingly and with intent to influence an
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action of the institution described in the indictment regarding
an application or loan; and three, the deposits of the
institution were insured by the Federal Deposit Insurance
Corporation.
A statement or report is false if it is untrue when
made and the person making it knows it is untrue.
The heart of the crime is the attempt to influence
the action of the institution by knowingly making a false
statement or report. The government does not have to prove
that the institution was actually influenced or misled.
As you know, the parties have stipulated that Sanibel
Captiva Community Bank was an insured financial institution at
all material times.
Counts 3 and 4 relates to an illegal monetary
transaction. It is a federal crime for anyone to engage in
certain kinds of financial transactions commonly known as money
laundering. Counts 3 and 4 allege that Casey David Crowther
committed the federal offense of engaging in an illegal
monetary transaction, also known as money laundering.
Specifically, on or about April 21, 2020, for
Count 3, and on or about April 24, 2020, for Count 4, it is
alleged that Mr. Crowther engaged or attempted to engage in a
specified monetary transaction in criminally derived property
of a value greater than $10,000, the property having been
derived from the bank fraud which is alleged in Count 1.
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In Count 3, the monetary transaction is described as
a $100,000 wire transfer from Sanibel Captiva Community Bank in
connection with the payment of a promissory note. In Count 4,
the monetary transaction is described as a $689,417 wire
transfer from Sanibel Captiva Community Bank in connection with
the purchase of a boat.
The defendant can be found guilty of this offense
only if all of the following are proved beyond a reasonable
doubt: One, the defendant knowingly engaged or attempted to
engage in a monetary transaction; two, the defendant knew the
transaction involved property or funds that were the proceeds
of some criminal activity; three, the property had a value of
more than $10,000; four, the property was, in fact, proceeds of
bank fraud, as alleged in the indictment; and five, the
transaction took place in the United States.
The term "monetary transaction" means the transfer or
exchange of funds by, through, or to a financial institution in
a way that affects interstate commerce.
As you know, the parties have stipulated that Sanibel
Captiva Community Bank was a financial institution at all
material times.
The parties have also stipulated that the transfers
described in Counts 3 and 4 affected interstate commerce.
The term "proceeds" means any property derived from,
or obtained or retained, directly or indirectly, through some
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sort or some form of unlawful activity, including the gross
receipts of the activity.
It does not matter whether the defendant knew the
precise nature of the crime, or that the property came from
committing bank fraud; but the government must prove that the
defendant knew the property involved in the monetary
transaction was obtained or derived from committing some crime.
Also, it does not matter whether all the property involved was
derived from a crime. The government only has to prove that
$10,000 worth of the property was obtained or derived from
committing a crime.
It is possible to prove the defendant guilty of a
crime even without evidence that the defendant personally
performed every act charged. Ordinarily, any act a person can
do may be done by directing another person or agent, or it may
be done by acting with or under the direction of others.
Good faith is a complete defense to a charge that
requires intent to defraud. A defendant is not required to
prove good faith. The government must prove intent to defraud
beyond a reasonable doubt. An honestly held opinion, or an
honestly formed belief cannot be fraudulent intent even if the
opinion or believe is mistaken.
Similarly, evidence of a mistake in judgment, or
error in management, or carelessness cannot establish
fraudulent intent. But an honest belief that a business
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venture would ultimately succeed does not constitute good faith
if the defendant intended to deceive others by making
representations the defendant knew to be false or fraudulent.
During the trial, you have heard the parties and
witnesses talk about Interim Final Rules, which are regulations
issued by the Small Business Administration to implement the
Paycheck Protection Program as included in the CARES Act. An
Interim Final Rule is a rule adopted by a federal agency that
becomes effective without prior notice and public comment, and
that invites public comment after its effective date.
You will see that the indictment charges that a crime
was committed on or about a certain date. The government does
not have to prove the offense occurred on the exact date. The
government only has to prove beyond a reasonable doubt that the
crime was committed on a date reasonably close to the date
alleged.
The word "knowingly" means that the act was done
voluntarily and intentionally, and not because of a mistake or
accident.
Each count in the indictment charges a separate
crime. You must consider each crime, and the evidence relating
to it, separately. If you find the defendant guilty or not
guilty on one crime, that must not affect your verdict as to
another crime.
I caution you that the defendant is on trial only for
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the specific crimes charged in the indictment. You are here to
determine, from the evidence in this case, whether the
defendant is guilty or not guilty of those specific crimes.
You must never consider punishment, in any way, to
decide whether the defendant is guilty. If you find the
defendant guilty, the punishment is for the Judge alone to
decide later.
Your verdict, whether guilty or not guilty, must be
unanimous. In other words, you must all agree.
Your deliberations are secret, and you will never
have to explain your verdict to anyone. Each of you must
decide the case for yourself, but only after fully considering
the evidence with the other jurors. So you must discuss the
case with one another and try and reach an agreement.
While you are discussing the case, do not hesitate to
reexamine your own opinion and change your mind if you become
convinced that you were wrong; but do not give up your honest
beliefs just because others think differently, or because you
simply want to get the case over with. Remember that, in a
very real way, you are judges, judges of the facts. Your only
interest is to seek the truth from the evidence in the case.
During your deliberations, you may not communicate
with or provide any information to anyone, by any means, about
the case. You may not use any electronic device or media to
communicate with anyone any information about the case or to
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conduct any research about the case until I accept your
verdicts. In other words, you cannot talk to anyone on the
phone, correspond with anyone, or electronically communicate
with anyone about the case. You can only discuss the case in
the jury room with your fellow jurors during deliberations. I
expect that you will inform me as soon as you become aware of
another juror's violation of these instructions.
You may not use these electronic means to investigate
or communicate about the case because it is important that you
decide the case based solely on the evidence presented in the
courtroom. Information on the internet or available through
social media might be wrong, incomplete, or inaccurate. You
are only permitted to discuss the case with your fellow jurors
during your deliberations because they have seen and heard the
same evidence that you have.
In our judicial system, it is important that you are
not influenced by any thing or any one outside this courtroom.
Otherwise, your decision may be based on information known only
to you, and not your fellow jurors or the parties in the case.
This would unfairly and adversely impact the judicial process.
When you go into the jury room, select one of your
members to act as your foreperson. The foreperson will direct
your deliberations, and will speak for you in court.
A form of verdict has been prepared and will be sent
back with you. It is three pages. I'm going to go over it
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with you right now.
With regard to Count 1, that's on Page 1, there's
actually two different questions, because, as I told you,
there's two alternative ways to commit bank fraud.
The form says, Count 1. As to Count 1 of the second
superseding indictment, which charges bank fraud, A, as to
defrauding a financial institution, we, the jury, unanimously
find the defendant, Casey David Crowther, and then it's got two
lines, not guilty and guilty. Obviously, you check one of
those.
For Count 1, Section B, it reads, and again the
preface is as to Count 1, which charges bank fraud, B, as to
obtaining money or funds from a financial institution by means
of materially false statement, or fraudulent pretenses,
representations, or promises, we, the jury, unanimously find
the defendant, Casey Crowther, and again you've got two
choices, not guilty or guilty.
Now, there are two alternatives. We have to answer
both. And they can be different. You can find guilty of both,
not guilty of both, guilty of one, and not guilty of the other.
But you have to fill out both questions for Count 1.
The verdict form for two Count 2, in the next page,
says, as to Count 2 of the second superseding indictment, which
charges false statement to a financial institution, we, the
jury, unanimously find the defendant, Casey David Crowther, and
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again, not guilty or guilty. You check whichever one is
appropriate.
Count 3, the form says, as to Count 3 of the second
superseding indictment, which charges illegal monetary
transaction on April 21 of 2020, we, the jury, unanimously find
the defendant, Casey Crowther, again, not guilty or guilty.
You check the appropriate one.
And finally, Count 4 of the form says, as to Count 4
of the second superseding indictment, which alleges illegal
monetary transaction on April 24, 2020, we, the jury,
unanimously find the defendant, Casey Crowther, and again, not
guilty or guilty. You check whichever one is appropriate.
Page 3, it says so say we all, indicates again that
your verdicts are unanimous, and it has a line for the date and
a line for the signature of the foreperson.
You will take the verdict form with you to the jury
room. When you have all agreed on the verdict, your foreperson
must fill the form in, sign and date it, and then you all will
return to the courtroom.
If you wish to communicate with me at any time,
please write down your message or question, and give it to the
Court Security Officer. The Court Security Officer will bring
it to me, and I will respond as promptly as possible, either in
writing or by having you come back to the courtroom. But I
caution you not to tell me, at any time, how many jurors have
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voted one way or the other.
In a moment I'm going to have you return to the jury
room. Shortly, we will gather all the exhibits that have been
admitted, and have those taken back to you. That might take a
few minutes as we make sure that we've got just the right ones.
I'll send back the verdict form. We're send back a copy of the
jury instructions. So you'll have those.
(The Court confers with the Courtroom Deputy
privately.)
THE COURT: I suggest, among the first things you do
when you get back there, is they're going to order you lunch.
So you need to tell the Courtroom Deputy or the CSO, and make
your luncheon arrangements.
You remember all those instructions I gave you about
not talking about the case? Those instructions are rescinded.
Now is the time you are to talk about the case. So, with the
exception of Miss King and Miss Shaw, if you two would remain
present, the rest of you would follow the Court Security
Officer, he will take you to the jury room.
(At 11:27 a.m., the jury was escorted from the
courtroom.)
THE COURT: Miss Klein?
JUROR KLEIN: Yes, sir?
THE COURT: Go on with the jurors.
JUROR KLEIN: Oh, okay.
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THE COURT: You may have a seat.
You may be seated.
Ms. Shaw and Ms. King, you are the alternates in the
case. What that means is all the instructions I told you about
not talking about the case still apply. And the reason for
that is, if, for example, a juror got sick before they returned
a verdict, or got in a car accident or something, instead of
having to try the case all over again, I'd just call one of
you, and the jury would be told to begin their deliberations
all over again.
So you can't talk about the case among yourselves or
with anyone else, you can't do any of the research or view any
publicity.
What I'm going to ask do you is give my Courtroom
Deputy a cell number, or some number we can get a hold of you.
We will call you and let you know whether we need you or not,
but I can't tell you when, because I don't know how long the
deliberations will make. If it's the end of the day, we will
call you to let you know that you're not needed. If they go
over into Monday, we'll call you Monday. Like I said, I don't
know when. But whenever it is, we'll call you at some point.
Any questions?
If you'd come on up, give us -- my question is, do
you have anything in the jury room that needs to be retrieved?
If you'd tell the CSO, he'll get it for you. And then you need
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to give us a phone number, and we'll get you out of here.
(Thereupon, after providing contact information to
the Courtroom Deputy, the alternate jurors left the
courtroom.)
THE COURT: All right. Counsel, if you'd take a look
at the exhibits, and make sure we have the right ones, and
nothing extra. And then we'll get the verdict form, and I do
need to get a new page for that instruction.
And you obviously can take a look at the instructions
that are going back, and the verdict form. I would suggest
that we kind of hang around and see if there's a quick
question. As you heard, the jurors will be ordering lunch.
That probably takes a while to get them, but I would think it's
safe for any of us to go for lunch shortly.
Anything else?
MR. REICHLING: No, Judge.
MR. DICKERSON: No, Your Honor.
THE COURT: All right. We'll be in recess until we
hear from the jury then.
(At 11:30 a.m., court was recessed.)
AFTER RECESS
(At 1:29 p.m., court was reconvened.)
THE COURT: Be seated.
Counsel, I'm told the jury has reached verdicts, so
we'll just wait for the jury to be brought upstairs.
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POLLING OF THE JURY
(At 1:31 p.m., the jury was escorted into the
courtroom.)
THE COURT: Be seated, please.
Mr. Day, since you're one carrying pieces of paper,
may I assume you're the foreperson?
JUROR DAY: Yes.
THE COURT: And I'm informed that the jury has
reached verdicts. Is that correct?
JUROR DAY: That's correct.
THE COURT: I'd ask that you hand the verdict form to
the Court Security Officer, and he'll bring it to up to me.
Thank you.
Ladies and gentlemen, if you'd all please rise and
listen to your verdicts. Which means stand up, please.
As to Count 1, Subpart A, you have found the
defendant guilty. As to Count 1, Subpart B, you have found the
defendant guilty. As to Count 2, you have found the defendant
guilty. As to Count 3, you have found the defendant guilty.
And as to Count 4 you have found the defendant guilty. The
verdict form is dated today's date and signed by your
foreperson.
Are these your verdicts, so say all of you?
(All jurors indicate affirmatively.)
THE COURT: Mr. Day, are these your verdicts?
JUROR DAY: Yes, they are.
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THE COURT: Ms. Freymoyer, are these your verdicts?
JUROR FREYMOYER: Yes.
THE COURT: Ms. O'Brien, are these your verdicts?
JUROR O'BRIEN: Yes.
THE COURT: Mr. Combs, are these your verdicts?
JUROR COMBS: Yes.
THE COURT: Mr. Turner, are these your verdicts?
JUROR TURNER: Yes.
THE COURT: Ms. Ford, are these your verdicts?
JUROR FORDE: Yes.
THE COURT: Mr. Priddy, are these your verdicts?
JUROR PRIDDY: Yes.
THE COURT: Mr. Smith, are these your verdicts?
JUROR SMITH: Yes.
THE COURT: Ms. Graley, are these your verdicts?
JUROR GRALEY: Yes.
THE COURT: Mr. Hochman, are these your verdicts?
JUROR HOCHMAN: Yes.
THE COURT: Ms. Klein, are these your verdicts?
JUROR KLEIN: Yes.
THE COURT: And, Mr. Anderson, are these your
verdicts?
JUROR ANDERSON: Yes, sir.
THE COURT: Ladies and gentlemen, I want to thank you
for your time and attention in this case. This will complete
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your jury service both in this case and you do not need to call
that telephone number for the rest of the month. You will be
excused.
If you'd exit through the jury room, I'd request that
you leave the lanyards for future use, and like I say, I do
appreciate your time and effort in the case.
(At 1:34 p.m., the jury was escorted from the
courtroom.)
THE COURT: You may be seated.
Mr. Crowther, if you and one or both of your lawyers
would come on up to the podium for me, please.
Mr. Crowther, pursuant to the verdicts of the jury,
the Court would adjudicate you guilty of Count 1 as to both
alternatives; that is, the bank fraud, for defrauding a
financial institution, and by obtaining money by means of false
pretenses, representations and promises. The Court would also
adjudicate you guilty of Counts 2, 3, and 4 of the second
superseding indictment.
The Court will order a presentence report to be
prepared, and you and your attorneys, of course, will be given
the opportunity to review that report and make any objections
that you think may be appropriate.
I don't know if we have a date yet for sentencing.
We'll set the date of sentencing by separate notice. That
typically is anywhere from 75 to 90 days out for the
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preparation of the presentence report.
Counsel, anything further? From the government?
MR. REICHLING: No, Your Honor.
THE COURT: From the defense?
MS. WAID: No, Your Honor.
THE COURT: Mr. Crowther, the Court is not going to
change the terms and conditions of your release, so whatever
the magistrate judge has said you will still need to comply
with until the time of sentencing.
Do you understand that?
THE DEFENDANT: Yes, Your Honor.
THE COURT: All right. If there's nothing else, we
will be in recess.
The jury verdict form will be available for
inspection. If you'd like, we'll make copies of it for you for
your respective files.
All right. We'll be in recess.
-- -- -- -- -- -- -- --
(Thereupon, at 1:36 p.m., the above-entitled matter
was concluded.)
-- -- -- -- -- -- -- --
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Case 2:20-cr-00114-JES-M_M Document 193 Filed 11/15/21 Page 87 of 88 PageID
5190
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CERTIFICATE
I CERTIFY THAT THE FOREGOING TRANSCRIPT IS A TRUE AND
ACCURATE TRANSCRIPT FROM THE ORIGINAL STENOGRAPHIC RECORD IN
THE ABOVE-ENTITLED MATTER.
Dated this 15th day of November, 2021.
_
JEFFREY G. THOMAS, RPR, CRR
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Case 2:20-cr-00114-JES-M_M Document 193 Filed 11/15/21 Page 88 of 88 PageID
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