Order on Motion to Dismiss Indictment — United States v. Travis C. Crosby (Northern District of Georgia)
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Order of the United States District Court for the Northern District of Georgia in United States v. Travis C. Crosby, Criminal Action No. 1:21-CR-0011-LMM-CCB-3, filed 01/26/22, denying the Motion to Dismiss Indictment Due to Selective Prosecution and the alternative request for discovery and an evidentiary hearing. Crosby argued that 52 of 59 defendants charged in the district for similar PPP crimes are believed to be Black. The order finds that statistics on one group do not show that similarly situated persons were treated differently, and that Crosby, alleged to have falsified employee and payroll figures and written at least 25 checks portrayed as payroll, is not similarly situated to those cited. It also finds no evidence of discriminatory purpose; the order names Judge Leigh Martin May.
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“Order on Motion to Dismiss Indictment — United States v. Travis C. Crosby (Northern District of Georgia).”
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Case 1:21-cr-00011-LMM-CCB Document 150 Filed 01/26/22 Page 1 of 10
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
UNITED STATES OF AMERICA, :
:
:
: CRIMINAL ACTION NO.
v. : 1:21-CR-0011-LMM-CCB-3
:
TRAVIS C. CROSBY, :
:
:
Defendant. :
ORDER
Defendant has filed a Motion to Dismiss Indictment Due to Selective
Prosecution. Dkt. No. [129]. In the motion, Defendant seeks an order dismissing
the indictment or, in the alternative, allowing discovery and an evidentiary
hearing relating to his selective-prosecution claim. The Government opposes the
motion, Dkt. No. [133], and Defendant has filed a reply, Dkt. No. [138]. The Court
also heard oral argument on the motion on January 20, 2022. See Dkt. No. [145].
Following the hearing, counsel filed supplements to address an issue raised at the
hearing. Dkt. Nos. [141, 143]. For the following reasons, Defendant’s motion is
DENIED.
I. BACKGROUND
Defendant is charged, along with five other individuals, with crimes in
connection with applications for funds made available through the Payroll
Case 1:21-cr-00011-LMM-CCB Document 150 Filed 01/26/22 Page 2 of 10
Protection Program (“PPP”). Dkt. No. [125]. All other defendants in this case
have pleaded guilty. Dkt. Nos. [74, 95, 97, 99, 100].
Defendant argues that the Court should dismiss the charges asserted
against him because the Government has discriminated against him based on his
race. Dkt. No. [129] at 5. Specifically, Defendant argues that “the government has
almost exclusively charged minorities—and specifically, Black individuals—with
committing fraud in relation to the CARES Act programs.” Id.
In support, Defendant points to Department of Justice (“DOJ”) press
releases and an NBC News webpage, which he contends show that businesses and
white men who took PPP funds without qualifying for them were often allowed to
return the funds or resolve allegations of fraud through civil settlements without
criminal prosecution. Id. He also alleges that of 59 defendants charged in the
Northern District of Georgia for similar crimes, 52 are believed to be Black,
including all the defendants in this case. Id. at 2. Of the remaining seven
defendants, Defendant’s counsel believes that five of them are not white. Id.
According to Defendant, this translates to 88.5% of the prosecutions in this
district against Black individuals and 96.6% of the prosecutions against people of
color. Id. at 3. He further notes that 11,768,689 total PPP applications were
submitted and that among the applications that identified the race of the
applicants, 32.98% of the loans went to Black-owned businesses, while 67% went
to white-owned businesses, suggesting that the PPP prosecutions in this district
are disproportionately against Black individuals and businesses. Id. Defendant
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also points to an example in another case in this district where a white person he
contends is similarly situated was not charged. Dkt. No. [138] at 3-4.
Based on this information, Defendant requests that the Court dismiss the
indictment, or in the alternative, allow discovery and hold an evidentiary hearing
on the motion. Dkt. No. [129] at 6. Although Defendant’s motion does not
specifically identify the discovery requested, his reply brief indicates that he is
“asking for the Government to identify the race of those investigated but not
prosecuted in this district or who have been allowed to return funds, whether via
civil settlement or another mechanism, in lieu of prosecution.” Dkt. No. [138]
at 7.
II. LEGAL STANDARD
Prosecutors have “broad discretion” in enforcing criminal laws, and a
“presumption of regularity” attaches to their prosecutorial decisions. United
States v. Armstrong, 517 U.S. 456, 464 (1996) (citations and internal quotation
marks omitted). Therefore, “a defendant who seeks to establish a claim of
selective prosecution in violation of the Constitution carries a ‘demanding’
burden.” United States v. Cannon, 987 F.3d 924, 937 (11th Cir. 2021) (quoting
United States v. Smith, 231 F.3d 800, 807 (11th Cir. 2000)).
“ ‘[T]o dispel the presumption that a prosecutor has not violated equal
protection, a criminal defendant must present clear evidence to the contrary.’ ”
Smith, 231 F.3d at 807 (emphasis and internal quotation marks omitted)
(quoting Armstrong, 517 U.S. at 465). This requires a showing “that the federal
3
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prosecutorial policy had a discriminatory effect and that it was motivated by a
discriminatory purpose.” Id. at 808 (quoting Armstrong, 517 U.S. at 465); United
States v. Hill, Crim. Case No. 1:16-CR-051-TWT-JSA, 2016 WL 6246887, at *2
(N.D. Ga. Sept. 16, 2016) (R&R), adopted at 2016 WL 6217122 (N.D. Ga. Oct. 25,
2016). Obtaining discovery on a selective-prosecution claim is subject to “a
correspondingly rigorous standard” and “requires a defendant to produce ‘some
evidence tending to show the existence of the essential elements’ of a selective
prosecution claim—discriminatory effect and discriminatory purpose.” Cannon,
987 F.3d at 937 (internal quotation marks omitted). Likewise, a defendant is not
entitled to a hearing unless he “present[s] ‘some’ evidence tending to establish
selective prosecution.’ ” United States v. Jordan, 635 F.3d 1181, 1189 (11th Cir.
2011).
III. DISCUSSION
The Government does not refute Defendant’s statistics and instead argues
that Defendant has not met the high burden of proof set out in Armstrong and its
progeny. Dkt. No. [133]. Although the statistics and examples Defendant cites are
troubling, the Court concurs. In addition, even if the Court ordered the discovery
Defendant requests, the Court finds that those documents, even considered in the
light most favorable to Defendant, would be insufficient for Defendant to meet
his burden for dismissal.
First, Defendant’s arguments about the number and percentage of Black
defendants charged in the Northern District of Georgia with fraud in connection
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with obtaining Cares Act funds and PPP loans are insufficient. “Statistical data
reflecting the treatment of only one particular group cannot satisfy the
discriminatory effect prong because it fails to show that similarly situated
persons were treated differently.” Cannon, 987 F.3d at 937-38. For instance, in
United States v. Jordan, the Eleventh Circuit “affirmed the denial of discovery
and an evidentiary hearing on a selective prosecution claim where the
defendant’s statistics showed that ‘approximately 93%’ of Armed Career Criminal
Act (“ACCA”) prosecutions in the Northern District of Georgia were against
African-Americans, but failed to ‘include the criminal histories of the other
defendants.’ ” Cannon, 987 F.3d at 938 (quoting Jordan, 635 F.3d at 1189). In
doing so, it “explained that because the statistics did not touch on the criminal
histories of other defendants who were not prosecuted, they were ‘not probative
of the “similarly situated” inquiry of the discriminatory effect test.’ ” Id. (quoting
Jordan, 635 F.3d at 1189). Because the defendant “ ‘did not show that a single
arrestee who was not prosecuted under the ACCA qualified for such
prosecution,’ . . . [he] failed to present ‘ “some” evidence tending to establish
selective prosecution, much less facts sufficient to create a reasonable doubt
about the constitutionality of his prosecution.’ ” Cannon, 987 F.3d at 938
(quoting Jordan, 635 F.3d at 1189). Accordingly, the court affirmed the district
court’s ruling that the defendant was not entitled to an evidentiary hearing or
discovery on his selective-prosecution claim. Jordan, 635 F.3d at 1189.
5
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Here, as in Jordan, Defendant attempts to support his request for
discovery by focusing on the number of Black defendants prosecuted in this
district for fraud involving the CARES Act, but such “figures are not probative of
the ‘similarly situated’ inquiry of the discriminatory effect test,” and therefore,
defendants have “not presented ‘some’ evidence tending to establish selective
prosecution” as required to obtain discovery or an evidentiary hearing. Id.
(citations and internal marks omitted); accord Cannon, 987 F.3d at 937-38
(“Under Armstrong and Jordan, this statistical evidence fails to establish
discriminatory effect because it does not demonstrate that similarly situated
defendants of other races could have been prosecuted for the same offenses but
were not.”).
Defendant also attempts to support his selective-prosecution argument by
arguing that DOJ news releases show that in three other instances outside this
district, the Government allowed similarly situated individuals to resolve their
issues without criminal charges. Dkt. No. [129] at 5 & n.8; Dkt. No. [138] at 5 &
n.4. The problem with these examples is that the defendants are not similarly
situated. Two news releases involve the settlement of False Claim Act cases. The
other involves a business that made false statements regarding its bankruptcy
status. In addition, the NBC News webpage Defendant cites appears to contain a
list of businesses who voluntarily repaid their PPP loans before any sort of
Government investigation.
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In Defendant’s reply brief, he also mentions an individual, C.C., who he
claims was similarly situated but not prosecuted. Dkt. No. [138] at 3-4. The Court
asked for supplemental briefing from the parties on the particulars of C.C.’s case.
In response, the Government indicated that C.C.’s case involved four indicted
individuals, with three of those indicted being white. Dkt. No. [141] at 3. C.C. was
not the business owner and did not receive any of the fraud proceeds or attempt
to launder them. Id. C.C. also voluntarily contacted the FBI and cooperated with
the investigation. Id. Although Defendant points to some facts that are similar,
those highlighted above show that C.C. was not similarly situated to Defendant.
The Eleventh Circuit has described the “similarly situated” component of
the discriminatory effect prong as follows:
“[A] ‘similarly situated’ person for selective prosecution purposes is one
who engaged in the same type of conduct, which means that the
comparator committed the same basic crime in substantially the same
manner as the defendant—so that any prosecution of that individual would
have the same deterrence value and would be related in the same way to
the Government’s enforcement priorities and enforcement plan—and
against whom the evidence was as strong or stronger than that against the
defendant.”
United States v. Brantley, 803 F.3d 1265, 1271-72 (11th Cir. 2015) (alteration
adopted) (quoting Smith, 231 F.3d at 810).
Defendant, who is charged with participating in a conspiracy and scheme
to submit fraudulent applications for PPP loans, is not similarly situated to C.C.,
the companies and individuals that were discussed in the DOJ press releases, or
those who voluntarily returned their funds before any sort of Government
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investigation. Rather, Defendant is alleged to have, among other things,
fraudulently represented the number of employees and payroll amount at his
company, attached a falsified payroll-tax form to his application, and wrote at
least 25 checks to multiple individuals, falsely portraying these payments as
payroll. Dkt. No. [125] at 5-11; Dkt. No. [141] at 2. Defendant’s actions also arise
from a conspiracy involving multiple other participants. See generally Dkt. No.
[125]. This is materially different from the conduct of the companies and
individuals that Defendant cites as comparable.
For these reasons, the Court finds that Defendant has not made a showing
that he is similarly situated to any persons who have not been prosecuted for
comparable conduct such that the Court might order an evidentiary hearing or
the discovery sought from the Government, much less dismiss the charges
asserted against him. See Jordan, 635 F.3d at 1189; Cannon, 987 F.3d at 937-38.
The Court also notes that even if it were to order the Government to
produce the discovery Defendant seeks, the evidence still would be insufficient to
show that he is entitled to dismissal of the charges, since the evidence Defendant
seeks is limited to the race of those investigated but not prosecuted for PPP fraud.
Dkt. No. [138] at 7. As explained above, to meet his burden, Defendant not only
must provide evidence of the race of his comparators but also must show that
they are similarly situated. Thus, even if the Court were to grant Defendant’s
request for discovery, he could not succeed on his motion to dismiss the
indictment.
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Furthermore, in addition to failing to show any evidence of “discriminatory
effect” to merit discovery, Defendant has offered nothing to suggest that the
Government has acted with discriminatory purpose in prosecuting him. To obtain
discovery on a selective-prosecution claim, Defendant must provide some
evidence tending to show both elements of the claim—discriminatory effect and
discriminatory purpose. Cannon, 987 F.3d at 937 (quoting Jordan, 635 F.3d at
1188-89). “The discriminatory purpose prong requires that ‘the decisionmaker
selected or reaffirmed a particular course of action at least in part “because of,”
and not merely “in spite of,” its adverse effects upon an identifiable group.’ ”
Jordan, 635 F.3d at 1188 (quoting Wayte v. United States, 470 U.S. 598, 610
(1985)). There is no such evidence before the Court.1 “Though this Court
recognizes the difficulty of pleading sufficient facts without discovery, bare
allegations are [simply] not sufficient to establish the need for discovery.” United
States v. Hill, Crim. Case No. 1:16-cr-051-TWT-JSA, 2016 WL 6246887, at *6
(N.D. Ga. Sept. 16, 2016), adopted at 2016 WL 6217122 (N.D. Ga. Oct. 25, 2016).
1 Defendant cites United States v. Gordon, 817 F.2d 1538 (11th Cir.
1987), in support of his argument that discriminatory purpose has been shown.
Dkt. No. [138] at 5-6 (citing Gordon, 817 F.2d at 1539-41). In Gordon, the
defendant provided affidavits and other evidence in support of his claim,
including a statement from the DOJ that the “investigations were part of a new
policy brought on by the arrogance on the part of blacks in these counties.” Id. at
1540 (internal quotation marks omitted). The Eleventh Circuit noted that even
such a statement would not be enough on its own without the other evidence the
defendant offered, which included evidence that a rival white political
organization assisted law enforcement officials in prosecuting his case. Id. No
similar evidence exists here.
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Accordingly, Defendant’s motion is also due to be denied for failure to satisfy the
discriminatory purpose prong of the selective-prosecution analysis.
IV. CONCLUSION
For the foregoing reasons, Defendant’s Motion to Dismiss Indictment Due
to Selective Prosecution, Dkt. No. [129], is DENIED.
26th day of January, 2022.
IT IS SO ORDERED this ____
_____________________________
Leigh Martin May
United States District Judge
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