Court filing
Response in Opposition by USA as to Eric Dean Sheppard — USA v. Sheppard (Dkt. 38, S.D. Fla.)
Filed December 27, 2022 in USA v. Sheppard; one of 253 filings from this case.
Record facts
| Court | U.S. District Court for the Southern District of Florida |
|---|---|
| Filed | 2022-12-27 |
U.S. District Court for the Southern District of Florida · No. 1:22-cr-20290-BB · Doc. 38 · 2022-12-27 · Docket on CourtListener
Full text
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 22-20290-CR-BLOOM/OTAZO-REYES
UNITED STATES OF AMERICA,
v.
ERIC DEAN SHEPPARD,
Defendant.
________ /
GOVERNMENT=S RESPONSE TO
DEFENDANT’S MOTION FOR BILL OF PARTICULARS
The United States, by and through the undersigned Assistant United States Attorney,
hereby files this Response to the Defendant’s Motion for Bill of Particulars (the “Motion”), ECF
No. [37], and states:
I. INTRODUCTION AND PROCEDURAL HISTORY
The Defendant has been charged with six counts of wire fraud arising out of his fraudulent
applications for loans through the Paycheck Protection Program (“PPP”) and Economic Injury
Disaster Loan (“EIDL”) program. Under the Coronavirus Aid, Relief, and Economic Security
(“CARES”) Act, Congress authorized forgivable loans to small businesses for job retention and
certain other expenses, known as PPP loans. With regard to the EIDL program, this was an SBA
program that existed before the COVID-19 pandemic to provide low-interest financing to small
businesses, renters, and homeowners in regions affected by declared disasters. The CARES Act
authorized the SBA to provide EIDLs to eligible small businesses experiencing substantial
financial disruptions due to the COVID-19 pandemic.
The Defendant, through three different entities that he controlled, HM Management and
Case 1:22-cr-20290-BB Document 38 Entered on FLSD Docket 12/27/2022 Page 1 of 14
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Development, LLC (“HMMD”), HM-Up Development Alafaya Trails, LLC (“Alafaya Trails”),
and HM Four LLC (“HM Four”), applied for three EIDL and three PPP loans. In doing so, the
Defendant submitted or caused to be submitted false and fraudulent PPP loan applications and
EIDL applications. These false and fraudulent applications included, among other things, falsified
tax forms that purported to substantiate nonexistent business profits and misrepresentations about
the borrowing entities’ revenues, monthly payroll, and numbers of employees. Based on the false
and fraudulent PPP loan and EIDL applications three different financial institutions disbursed PPP
loan proceeds to Alafaya Trails and HMMD, and the SBA disbursed EIDL proceeds to bank
accounts held by HMMD, Alafaya Trails, and HM Four, all controlled by the Defendant. Once
the fraudulently obtained proceeds were deposited into the designated accounts of each entity, the
Defendant used the proceeds for his personal use and benefit rather than the permitted uses under
the EIDL and PPP loan programs.
In his Motion, the Defendant claims that the Indictment does not identify any false
statements made in any of the loans at issue, does not identify any misuses of the loan proceeds or
in what ways the use of such funds is criminal, and does not identify any accomplices. Not only
does the Indictment contain all required information to put him on notice of the wire fraud charges,
but the discovery contains all necessary details that the Defendant needs to prepare a defense, plead
double jeopardy in a subsequent prosecution, and avoid surprise at trial. Because the requested
bill of particulars seeks information detailing the Government’s theory of the case at trial, which
Federal Rule of Criminal Procedure 7(f) does not authorize, the Defendant’s Motion should be
denied.
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II. STANDARD OF REVIEW
Pursuant to Federal Rule of Criminal Procedure 7(f), “[t]he court may direct the
government to file a bill of particulars.” Fed. R. Crim. P. 7(f). “The defendant bears the burden
of showing that the information requested is necessary and that he will be prejudiced without it so
as to justify granting a bill of particulars.” United States v. Bickers, No. 18-CR-98-SCJ-LTW,
2019 WL 7559292, *1, at *7 (N.D. Ga. Sept. 17, 2019) (citing United States v. Barnes, 158 F.3d
662, 666 (2d Cir. 1998)). A defendant does not satisfy this burden by merely stating that he or she
will be prejudiced without the bill. Id.
A bill of particulars is intended to “‘inform[ ] a defendant of the nature of the charges
against him so that he will have sufficient detail to prepare for [his] defense, to avoid or minimize
the danger of surprise at trial, and to enable him to plead double jeopardy’ in a later prosecution
for the same offense.” United States v. Holzendorf, 576 F. App’x 932, 935–36 (11th Cir. 2014)
(quoting United States v. Perez, 489 F.2d 51, 70–71 (5th Cir.1973)). A district court has the
discretion to grant or deny a defendant’s request for a bill of particulars. Id.
However, “[a] defendant may not request a bill of particulars ‘to obtain a detailed
disclosure of the government’s evidence prior to trial,’ or to acquire ‘information which is already
available through other sources.’” Id. (quoting United States v. Martell, 906 F.2d 555, 558 (11th
Cir.1990)). See also United States v. Detling, No. 118CR00309LMMLTW1, 2019 WL 3006623,
at *7–9 (N.D. Ga. Apr. 30, 2019), report and recommendation adopted, No. 1:18-CR-309-LMM-
LTW, 2019 WL 2284726 (N.D. Ga. May 29, 2019) (emphasis in original, citations omitted)
(“A bill of particulars supplements an indictment by providing information necessary for a
defendant to prepare for trial, and it is not meant to function as a discovery device.”). “Similarly,
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a bill of particulars is not a tool that allows defendants to obtain every fact that the Government
may possess regarding a conspiracy.” Bickers, 2019 WL 7559292, *7 (citing United States v.
Rosenthal, 793 F.2d 1214, 1227 (11th Cir. 1986), modified on other grounds, 801 F.2d 378 (11th
Cir. 1986)). A bill of particulars likewise may not seek to determine in advance the government’s
proof. Id. (citing United States v. Johnson, 575 F.2d 1347, 1356 (5th Cir. 1978); United States v.
Smith, 341 F. Supp. 687, 690 (N.D. Ga. 1972)). Nor is a bill of particulars “designed to compel
the government to detail[ ] exposition of its evidence or to explain the legal theories upon which
it intends to rely at trial.” United States v. Palacio, No. 21-20301-CR, 2021 WL 4066894, at *2
(S.D. Fla. Sept. 7, 2021) (quoting United States v. Roberts, 174 F. App’x 475, 477 (11th Cir.
2006)).
III. THE REQUESTED BILL OF PARTICULARS SHOULD BE DENIED
In the Motion, the Defendant claims that the Indictment does not identify a single alleged
false statement in any of the six applications for EIDL and PPP loans, does not identify a single
instance of alleged misuse of the proceeds in any of the six loans or in what ways the use of such
funds is criminal, and does not identify any accomplices. The Defendant has failed to satisfy his
burden to demonstrate that he is entitled to a bill of particulars as the allegations in the Indictment
coupled with the voluminous discovery produced to date give him ample notice of the charges
against him, requiring denial of the Motion.
1. The Government is not Required to Itemize Every Single Misrepresentation in a
Bill of Particulars When the Defendant Has Notice of the Charges.
The Defendant has full notice of the wire fraud charges alleged against him through both
the speaking indictment and the discovery. As a result, the requested bill of particulars should be
denied.
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The Eleventh Circuit has considered requests similar to those of the Defendant and has
found no abuse of discretion in the district court’s denial of a bill of particulars. See Holzendorf,
576 F. App’x at 935–36. In Holzendorf, the district court denied a bill of particulars seeking “every
single material misrepresentation the government intended to show at trial,” finding that the
“request was nothing more than a thinly veiled attempt to have the government make a
detailed disclosure of the evidence that it planned to present at trial.” Noting there was no showing
the defendant was actually surprised at trial, the Eleventh Circuit explained that the indictment
described the nature of the fraudulent scheme and that the government’s response to the motion
for bill of particulars listed nine types of misrepresentations that it intended to prove at trial. Id.
In addition, the Eleventh Circuit noted that the information the defendant requested was already
available from other sources, such as the trial transcripts of his co-conspirators and their plea
agreements, which included specific examples of misrepresentations made in the transactions at
issue. Id. at 936. See also United States v. Maurya, 25 F.4th 829, 838 (11th Cir. 2022) (finding
that the defendant had adequate notice of the charges when the defendant’s request for bill of
particulars referenced the transactions the government contended were fraudulent and simply
wanted the government to explain prior to trial which transactions, amounts, accounts, and other
details would be most significant at trial, thereby seeking the government’s specific legal theory.).
Similarly, a district court in this circuit denied a request for the material misrepresentations
at issue along with a definition of “non-litigation related expenses,” among other requests. Detling,
2019 WL 3006623, at *7. Finding that the information requested was not necessary to avoid
surprise or prepare a defense, the district court found that the superseding indictment adequately
informed the defendant of the charges supporting the fraud and aggravated identity theft claims by
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listing the dates of each offense, the initials of the person whose identity was used, the nature of
the wire communications or the means of identification, the misrepresentations made by the
defendant, and examples of non-litigation expenses. Id. at *9. Further, the government had
provided the defendant with victim statements that identified whose names were used to secure
the litigation advances. Id. Given that this information had been provided to the Defendant, there
was no need to compel it in a bill of particulars. Id. See also United States v. Jafari, No. 1:19-CR-
0078-SCJ-LTW, 2020 WL 7090698, at *5 (N.D. Ga. Feb. 25, 2020), report and recommendation
adopted, No. 119CR00078SCJLTW, 2020 WL 6281703 (N.D. Ga. Oct. 27, 2020) (denying
request for bill of particulars when the superseding indictment tracked the language of the statutes
involved, informed the defendants of the charges, and the government produced bank records,
financial statements, witness transcripts/recordings, and business and tax related documents, that
provided information about the nature of the charges); Bickers, 2019 WL 7559292 at *8 (finding
that speaking indictment coupled with the voluminous discovery, including bank records from
various financial institutions, including those that were directly related to the charged conduct;
investigative reports; witness transcripts and recordings; business records from various
institutions; and tax-related records, provided sufficient information about the nature of the charges
to enable the Defendant to prepare for trial, avoid unfair surprise, and to plead double jeopardy in
the event of a later prosecution).
Recently, a court in this district denied a motion for bill of particulars seeking to compel
specific details about the defendant’s materially false statements because “the bulk of the
government’s evidence consist[ed] of testimony regarding conversations the defendant personally
participated in, [so] the defendant cannot argue surprise.’” Palacio, 2021 WL 4066894, at *4
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(quoting United States v. Ramamurthy, 2019 WL 633328, at *4 (S.D. Fla. Feb. 13, 2019)). But
even assuming that this were an appropriate request, the court noted that the defendant had all of
the information she needed as the government produced 103,000 documents, with interview notes
totaling 1,100 pages, and the indictment alleged the misrepresentations were based on the
defendant falsifying whether the children were qualified to participate in the study, whether the
parents and guardians gave informed consent, whether a doctor saw the children for scheduled
visits, whether children were paid for study participation, whether the children received the asthma
drug, and whether the children reported their experiences with the drug. Id. Because the
allegations in the indictment gave the defendant notice of the charged offense, she had received
the specific misstatements in discovery, and participated in those misstatements, she had more than
what she needed to prepare a defense, requiring that the requested bill of particulars be denied. Id.
See also United States v. Cole, 755 F.2d 748, 760–61 (11th Cir. 1985) (finding no abuse of
discretion when district court denied bill of particulars as the evidence presented at trial consisted
of testimony of conversation and activities in which the defendants participated, making the
defendants unable to claim surprise or prejudice at trial); Ramamurthy, 2019 WL 633328 at *4
(denying motion for bill of particulars because the defendant and her attorneys were present at her
own debriefing when the false statements were made and “the bulk of the government’s evidence
consist[ed] of testimony regarding conversations the defendant personally participated in,” making
the defendant unable to argue surprise.); Jafari, 2020 WL 7090698, at *6 (denying bill of
particulars when the defendant sought advance information as to how much he allegedly paid in
bribes, finding such information was not necessary to prepare the defense especially because the
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defendant was allegedly involved in making the payments so the defendant should have access to
this information).
In this case, the speaking Indictment informs the Defendant that he has been charged with
wire fraud arising out of three EIDL and three PPP loans, providing a detailed explanation as to
both the EIDL and PPP programs. ECF No. [1] at P. 1-3, 6-7. The Indictment specifically
identifies the date on which each fraudulent application was made, to which lending institution it
was made, and on behalf of which entity the application was made. Id. The Indictment identifies
the Defendant’s role in each of the entities and his control of that entities’ bank account in which
the EIDL or PPP loans were deposited. Id. at 3-4. The Indictment further explains the purpose of
the scheme and artifice as involving the Defendant’s unlawful enrichment by submitting and
causing the submission of false and fraudulent applications for loans and grants available through
the SBA consisting of EIDL and PPP loans and the diversion of fraudulently obtained proceeds
for the defendant’s personal use and benefit. Id. at 5. Explaining the nature of the false and
fraudulent EIDL and PPP loan applications, the Indictment further alleges that the applications
included “falsified tax forms that purported to substantiate nonexistent business profits and
misrepresentations about the borrowing entities’ revenues, monthly payroll, and numbers of
employees.” Id. at 6. And, the Indictment specifically alleges that the Defendant used the
fraudulently obtained EIDL and PPP funds for his personal use and benefit. Id. Much like in
Palacio in which the indictment generally described the types of misrepresentations made, the
indictment here puts the Defendant on notice of the types of misrepresentations contained in each
of the EIDL and PPP loan applications.
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Further, in discovery, the Government has provided voluminous documents to the
Defendant. It has provided the EIDL and PPP loans applications and documents within each loan
file, which were received from the SBA and lending institutions. As explained in the Indictment,
the false statements at issue are contained within the loan applications. The PPP applications
contain misrepresentations regarding borrowing entities’ revenues, monthly payroll, and numbers
of employees. Likewise, the EIDL applications contain misrepresentations regarding the cost of
goods sold and the number of employees at each entity. The documents submitted in connection
with the loan applications also contain falsified tax forms, which in and of themselves contain
misrepresentations regarding each entity. Thus, the Indictment explains the types of
misrepresentations contained within the loan file and the Defendant simply needs to review the
loan applications and files, which are not voluminous, to obtain the details.
Within the discovery, the Government also provided records that further provide the
Defendant with additional information as to the misrepresentations within the loan applications.
For example, the Government produced documents from the Department of Revenue revealing
any payroll reported to the State of Florida by the three entities that received EIDL and PPP loan
money. The Government likewise provided tax documents obtained directly from the IRS for the
Defendant and each of the three entities revealing the actual income, profit, cost of goods sold, and
wage information reported for each entity. Similarly, the Government produced a copy of the tax
returns received from the accountant who prepared the tax returns for the Defendant and each of
the entities during the relevant time period. As part of the discovery, the Government also
produced the bank records for each of the three entities, including the SunTrust bank accounts in
which the EIDL and PPP monies were deposited. The Government has also produced reports for
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witness interviews for two witnesses (the Defendant’s former accountant and an individual who
denied signing a purported lease document that was submitted to the SBA in support of the EIDL
application) and will be supplementing its discovery in the near future to include two additional
interview reports (a second interview of the Defendant’s former account and a representative from
the Florida Department of Revenue). The Government also produced subpoenaed documents
reflecting the Defendant’s misuse of EIDL and PPP money for his own personal purposes as well
as documents reflecting Internet Protocol and email subscriber information and Docusign
information. To date, the Government has produced 11,523 pages of documents.1 Thus, not only
does the speaking Indictment put the Defendant on notice of the wire fraud charges, but the
discovery provides additional details from which the Defendant can prepare a defense, avoid
surprise at trial, and plead double jeopardy.
Further, courts in this circuit have repeatedly stated that when the evidence is based on a
defendant’s own statements, the defendant cannot claim unfair surprise at trial. Here,
misrepresentations are based on the Defendant’ own fraudulent statements to the SBA and lending
institutions, making him unable to claim surprise or unfair prejudice regarding the statements at
issue in the indictment. As the Defendant has all necessary information from available sources,
his request for a bill of particulars should be denied.
2. A Bill of Particulars is not Necessary for Diversion of Proceeds
The Defendant also claims that he has insufficient information as to the allegations
involving the diversion of fraudulently obtained proceeds. He contends that the Indictment does
1 In addition, the Government provided the Defendant with an itemized list of additional documents
that the Government has but does not intend to use at trial. These have been available for
inspection to the defense since the commencement of discovery.
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not identify a single instance of alleged misuse of the proceeds in any of the six loans, how the
EIDL funds may be used, or in what ways the use of such funds is criminal.
The Indictment explains how the use of funds is tied into the wire fraud counts. In
particular, the Indictment alleges that the purpose of the scheme and artifice involved in the wire
fraud here was, in part, to divert fraud proceeds for the defendant’s personal use. ECF No. [1] at
P. 5. And, the scheme and artifice explains that the Defendant indeed used the fraudulently
obtained loan proceeds for his personal use. Id. at 6.
With regard to the information about how the PPP funds can be used, the Indictment
specifically explains that information on page 2, paragraph 5. See ECF No. [1] (“PPP loan
proceeds were required to be used by the business on certain permissible expenses—payroll costs,
interest on mortgages, rent, and utilities.”). With regard to how EIDL funds can be used, this is
located within the discovery. Specifically, it is located within the loan documents for each of the
three EIDL applications.2 Each loan contains a section entitled “USE OF LOAN PROCEEDS”
and another section entitled “REQUIREMENTS FOR USE OF LOAN PROCEEDS AND
RECEIPTS.” These documents clearly outline for the Defendant what the permitted use was of
EIDL money. The Defendant can then look at the bank documents produced in discovery to
determine whether the EIDL money was used for a permitted or unpermitted purpose. The
Government, however, should not be required to itemize each of the unpermitted uses as the
Defendant has all of the information at his disposal and has the ability to make those
determinations. The Defendant’s request instead is an attempt to obtain the Government’s theory
of the case as to the improper use of the EIDL money. See Jafari, 2020 WL 7090698, at *6
2 In addition, the rules for the SBA’s EIDL program are also publicly available on the Internet.
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(denying bill of particulars when the defendant sought advance information as to how much he
allegedly paid in bribes); Palacio, 2021 WL 4066894 at *2-3 (stating that a bill of particulars is
not “designed to compel the government to detail[ ] exposition of its evidence or to explain the
legal theories upon which it intends to rely at trial.”). Simply put, the Defendant is not entitled to
obtain this type of information through a bill of particulars, especially when this information was
provided to him months ago in discovery.
3. The Government is not Required to Itemize the Names of Accomplices in a Bill of
Particulars When the Defendant Has Notice of the Information in Discovery.
Likewise, this Court should deny the request for a bill particulars for the names of any
accomplices as this is not the appropriate vehicle to seek such information. And, even if it were,
the Defendant has such information available to him in the discovery.
“If a bill of particulars was used to serve as a wholesale discovery device, it would frustrate
the federal discovery rule” in that Federal Rule of Criminal Procedure 16(b)(2) states that the rule
“does not authorize the discovery or inspection of ... statements made ... by government ...
witnesses, or by prospective government ... witnesses.” Id. (quoting Fed. R. Crim. P. 16(b)(2)).
Palacio, 2021 WL 4066894 at *2–4. Noting that a defendant who desires a list of government
witnesses or unindicted co-conspirators cannot simply bypass the Rule 16(b) restriction on
discovery by asking for and receiving a bill of particulars pursuant to Rule 7(f), the court in
Palacios explained that “a criminal defendant has no right to obtain a list of witnesses by simply
calling his request a ‘bill of particulars.”
Here, the Defendant is seeking the names of any unidentified accomplices mentioned in
the Indictment. In doing so, the Defendant attempts to bypass the discovery rule by seeking a bill
of particulars, which, as recently explained in Palacios, is not allowed. Nonetheless, the discovery
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contains the names of any accomplices. The Defendant has received copies of the PPP and EIDL
loan applications at issue. To the extent there was an accomplice involved in a particular loan
application, the loan application documents contain the name of that accomplice, any email
communications to or from that accomplice, and any notations regarding any conversations or
communications the loan processor had with that accomplice. The Defendant need do little more
than review the loan documents, which are the first 750 pages of discovery, to identify the names
of any accomplices. As the information is already in the Defendant’s possession, there is no reason
to compel a bill of particulars from the government.
IV. CONCLUSION
As the Defendant has abundant notice of the charges to prepare a defense, plead double
jeopardy in a future prosecution, and avoid surprise at trial, the Court should deny the Defendant’s
Motion for Bill of Particulars.
Respectfully submitted,
JUAN ANTONIO GONZALEZ
UNITED STATES ATTORNEY
By: /s Marty Fulgueira Elfenbein______
MARTY FULGUEIRA ELFENBEIN
Assistant United States Attorney
Florida Bar No. 0020891
99 Northeast 4th Street
Miami, Florida 33132-2111
Tel: (305) 961-9112
Email: Marta.Elfenbein@usdoj.gov
Case 1:22-cr-20290-BB Document 38 Entered on FLSD Docket 12/27/2022 Page 13 of 14
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on December 27, 2022, I electronically filed the foregoing
document with the Clerk of the Court using CM/ECF, which will send Notices of Electronic Filing
to all counsel of record.
/s Marty Fulgueira Elfenbein_________
MARTY FULGUEIRA ELFENBEIN
Assistant United States Attorney
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