Motion for Bill of Particulars by Eric Dean Sheppard. Responses due by 12/27/2022 — USA v. Sheppard (Dkt. 37, S.D. Fla.)

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U.S. District Court for the Southern District of Florida · No. 1:22-cr-20290-BB · Doc. 37 · 2022-12-09 · Docket on CourtListener

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UNITED STATES DISTRICT COURT 
SOUTHERN DISTRICT OF FLORIDA 
 
CASE NO.  1:22-CR-20290-BLOOM/OTAZO-REYES 
 
 
UNITED STATES OF AMERICA 
 
v. 
 
ERIC DEAN SHEPPARD, 
 
            Defendant. 
____________________________________/ 
 
MOTION FOR BILL OF PARTICULARS 
 
The Defendant Eric Dean Sheppard, by and through his undersigned counsel, and pursuant 
to Fed. R. Crim. P. 7, respectfully moves this Honorable Court for a bill of particulars.   
PRELIMINARY STATEMENT 
The Indictment charges Mr. Sheppard with six counts of wire fraud, one count each for 
each of the six different government loan applications he allegedly applied for through two 
different government loan programs involving three different companies. According to the 
Indictment, Mr. Sheppard and unidentified accomplices made materially false representations in 
each application and that he allegedly misused and diverted the loan proceeds. Yet, the Indictment 
fails to identify a single alleged false statement in any of the six applications that are the basis for 
the six criminal charges.  Nor does the Indictment identify a single instance of alleged misuse of 
the proceeds of a single dollar of any of the six charged loans, or in what way(s)  such use of funds 
is criminal. For these and other reasons, described in greater detail below, a Bill of Particulars is 
necessary to put Mr. Sheppard on notice of the crimes for which he is charged and to be able to 
properly defend himself against such charges.  
 
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A BILL OF PARTICULAR IS NECESSARY  
TO PROTECT MR. SHEPPARD’S CONSTITUTIONAL RIGHTS 
 
 
The Indictment charges Mr. Sheppard alone with six counts of wire fraud involving six 
loan applications (“Loan Applications”), arising from the Government’s efforts to support 
businesses that tried to continue operating during the pandemic. [Indictment at 1-3, 6-7]. 
Specifically, the Indictment charges three counts involving Loans Application submitted under the 
Payroll Protection Program (“PPP”) and three counts involving Loan Applications submitted 
under the Economic Injury Disaster Loan program (“EIDL”).   [Id. at 6-7 (¶8)].  The Loan 
Applications were submitted by three different companies, to wit, HM Management and 
Development, LLC (“HMMD”), HM-UP Development Alfaya Trails, LLC (“Alfaya Trails”), and 
HM Four, LLC (“HM Four”) (collectively the “Three Companies”).  [Id. at Page 3-7]. 
A. 
The Indictment Does Not Identify The Alleged False and/or Fraudulent 
Representations For Each Loan Application and Wire Fraud Count1 
 
The Indictment alleges that Sheppard and “other accomplices” made false and fraudulent 
material representations in submitting, or causing to be submitted, allegedly false and fraudulent 
PPP and EIDL Loan Applications for the Three companies.  [Indictment at 5 (¶¶ 2, 4)].  Moreover, 
without identifying the co-conspirators, the Indictment alleges—general, non-specific, and 
incomplete allegations  claiming —that:  “These false and fraudulent PPP loan and EIDL included, 
among other things, falsified tax returns that purported to substantiate nonexistent business profits, 
 
1 In a wire fraud charge, a defendant must be provided notice as to which of his statements the 
government contends are false or fraudulent. See, e.g., United States v. Velez, No. 05-20770-CR, 
2008 WL 11454799, at *2 (S.D. Fla. July 11, 2008); See also United States v. McCoy, 492 F. Supp. 
540, 545 (M.D. Fla. 1980) (requiring the government to set forth in a bill of particulars “each false 
and fraudulent pretense and representation described generally in the indictment”); United States 
v. Velez, No. 05-20770-CR, 2008 WL 11454798, at *5 (S.D. Fla. July 11, 2008) (same). 
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and misrepresentations about the borrowing entities’ revenues, monthly payroll, and numbers of 
employees.”  [Indictment at 5-6 (¶ 5)].   There is no other information or notice provided regarding 
the alleged misrepresentations and or fraud perpetrated. 
These overbroad, general claims of misrepresentations are completely insufficient. First, 
the “included, among other things” safety hatch is a hole the Government can drive a truck through. 
It is meant to surprise Mr. Sheppard at trial with any number of different allegations for which the 
Government will seek a conviction and for which the defense would be unprepared to respond. 
Second, the Indictment does not even attempt to identify, a single alleged materially false and 
fraudulent representation for each Loan Application that is charged in each separate count.  To be 
clear, the Indictment does not identify even one of the alleged charged false and fraudulent 
misrepresentations on any of the six wire fraud charges. Finally, it is improper for a criminal fraud 
charging instrument to so generally state that there were misrepresentations “about” certain topics, 
“among other things,” and not tied to each Loan Application. There is no legitimate reason for the 
Government to not plainly and clearly allege which representations it will rely on for each loan 
application, for each count it charged — in seeking to deprive Mr. Sheppard of his freedom.      
B. 
The Indictment Does Not Provide Sufficient Notice Regarding Diversions of 
Proceeds  
 
The Indictment charges that one of the two purposes of Mr. Sheppard and his unnamed 
“accomplices’” scheme was to “unlawfully enrich themselves” by “diverting fraud proceeds for 
the defendants’ personal use, the use of and benefit of others, and to further the fraud.”  [Indictment 
at 5 (¶ 3)].  The Indictment also alleged that Sheppard “used the fraudulently obtained proceeds 
for his personal use and benefit.”  [Indictment at 6 (¶ 7)].   Moreover, the Indictment alleges that 
the proceeds of PPP loans are “required” to be used for only certain business purposes.  [Indictment 
at 2 (¶ 5)].  By contrast, although the Indictment generally alleges some unidentified misuse and 
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diversion of Loan proceeds, the Indictment does not allege that the EIDL loans are “required” to 
be used for a certain purpose.  
These allegations about alleged misuse and diversion of proceeds collectively provide 
insufficient notice to the defense for two reasons.  First, the Indictment fails to identify the alleged 
misuse(s) or diversion(s) at all, and certainly, it fails on a per-Loan and per-Count basis as well.  
Mr. Sheppard is entitled to advance notice in order to properly prepare a defense to the charges as 
alleged in the Indictment. Second, the Indictment is contradictory, confusing and unclear on 
whether the alleged misuse(s) and diversion(s) are part of the charged crimes themselves (and how 
that would work in a wire fraud case) as opposed to motive to commit them.   
On the one hand, the Indictment alleges that PPP loans proceeds were “required” to be used 
only for certain business purposes, [Indictment at 2 (¶ 5)], a “purpose” of the scheme (without 
identifying the applicable Loan(s)) was misuse and diversion of Loan proceeds [id. at 5 (¶ 3)], 
Sheppard and his “accomplices” misused and diverted the funds, including for his personal use 
and the personal use of “others” (without identifying the applicable Loan(s)) [id. at 5 (¶ 3), at 6 (¶ 
7)]. On the other hand, there are no allegations about the required uses of the EIDL loan proceeds, 
and the charged wire fraud language refers to false representations, not misuse and diversion. [Id. 
at 5 (¶2)]. 
 In sum,  Mr. Sheppard is entitled to notice whether the alleged misuse and diversion by  
him and/or his accomplices is alleged to be part of the crimes charged in any one or more of the 
six Counts, (three involving PPP loans, and three involving EIDL loans), the actual alleged 
diversion(s) and misuse(s) by Sheppard and each of the unnamed “accomplices” for each 
applicable Loan, and in what misuse and diversion violate the wire fraud statute for each Loan 
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Application (e.g., is it because of a program requirement, because of a representation or 
commitment in a loan application, or for some other reason). 
C. 
The Indictment Does Not Identify the Unindicted Co-Conspirators2 
 
As noted above, the Indictment alleges that Sheppard’s unnamed “accomplices” and 
“others” were involved in the charged crimes in various ways.  [Indictment at 5 (¶¶ 3, 4), at 6 (¶ 
7)]. Where there may be reasons in certain cases not to disclose the identities of unindicted 
conspirators in the charging document itself, there does not seem to be any justification here, and 
the information has not been disclosed in discovery either. 
STANDARD 
The purpose of a bill of particulars is: (1) to inform the defendant of the charge against him 
with sufficient precision to allow him to prepare his defense; (2) to minimize surprise at trial; and 
(3) to enable him to plead double jeopardy in the event of a later prosecution for the same offense. 
United States v. Anderson, 799 F.2d 1438, 1441 (11th Cir. 1986). A bill of particulars is used to 
“supplement [] an indictment by providing the defendant with information necessary for trial 
preparation.” Id. at 1441; See also United States v. Palacio, No. 21-20301-CR, 2021 WL 4066894, 
at *2 (S.D. Fla. Sept. 7, 2021). “The test for whether a bill of particulars is necessary is ‘whether 
the indictment sets forth the elements of the offense charged and sufficiently apprises the defendant 
of the charges to enable him to prepare for trial.’” United States v. Velez, No. 05-20770-CR, 2008 
WL 11454799, at *1 (S.D. Fla. July 11, 2008) (quoting United States v. Kendall, 665 F.2d 126, 
 
2United States v. Barrentine, 591 F.2d 1069, 1077 (5th Cir. 1979)(“A bill of particulars is a proper 
procedure for discovering the names of unindicted coconspirators who the government plants to 
use as witnesses at trial. . . It is not uncommon for the trial judge to require the government to 
disclose their names when information is necessary in a defendant's preparation for trial.”); See 
also United States v. Velez, No. 05-20770-CR, 2008 WL 11454798, at *4 (S.D. Fla. July 11, 2008)( 
Barrentine still controls and a bill of particulars is proper [to obtain the identity of unindicted 
participants]”). 
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134 (7th Cir. 1981)). For the reasons stated above, the Indictment fails to apprise Sheppard of the 
charges to enable him to prepare his defense, and therefore, a Bill of Particulars is required.  
CONCLUSION 
 
In sum, the Indictment is completely inadequate when it comes to informing the defendant 
of the charges against him.  The Indictment is no more than very general, broad brush language of 
the wire fraud statute along with the several loans applied for, and is wholly deficient in providing 
the Defendant with precisely he is charged with in order for him to mount a viable defense.  
 WHEREFORE, Sheppard respectfully requests that this Court direct the United States to 
provide a Bill of Particulars. 
COMPLIANCE WITH LOCAL RULE 88.9 
Pursuant to Local Rule 88.9, the undersigned counsel has conferred with Assistant United 
States Attorney Marty Fulgueira Elfenbein, who informed the undersigned that the government 
opposes the relief sought in this Motion. 
 
Dated: December 9, 2022 
 
 
Respectfully submitted, 
NELSON MULLINS  
One Biscayne Tower, 21st Floor 
2 S. Biscayne Boulevard 
Miami, FL  33131 
Telephone:  305.373.9425 
Facsimile:   305.373.9443 
 
By: /s/ Jonathan Etra 
Jon A. Sale 
 
 
 
 
 
 
Florida Bar No. 246387 
 
 
 
 
 
 
Jayne C. Weintraub 
 
 
 
 
 
 
Florida Bar No. 320382 
Case 1:22-cr-20290-BB   Document 37   Entered on FLSD Docket 12/09/2022   Page 6 of 7

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Mark F. Raymond 
 
 
 
 
 
 
Florida Bar No. 373397 
 
 
 
 
 
 
Jonathan Etra 
 
 
 
 
 
 
Florida Bar No. 686905 
 
 
 
 
 
 
Christopher Cavallo 
 
 
 
 
 
 
Florida Bar No. 0092305 
 
 
 
 
CERTIFICATE OF SERVICE 
 
I HEREBY CERTIFY that on December 9, 2022 the foregoing document was filed via the 
Court’s CM/ECF system to all counsel of record. 
 
 
 
 
 
/s/ Jonathan Etra___  
  Jonathan Etra  
 
 
Case 1:22-cr-20290-BB   Document 37   Entered on FLSD Docket 12/09/2022   Page 7 of 7

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