Reply to Response to Motion by Eric Dean Sheppard re 37 Motion for Bill of Particulars — USA v. Sheppard (Dkt. 39, S.D. Fla.)

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U.S. District Court for the Southern District of Florida · No. 1:22-cr-20290-BB · Doc. 39 · 2022-12-29 · Docket on CourtListener

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UNITED STATES DISTRICT COURT 
SOUTHERN DISTRICT OF FORIDA 
CASE No. 22-20290-CR-BLOOM/OTAZO-REYES 
 
UNITES STATES OF AMERICA 
 
Plaintiff,  
v.  
ERIC DEAN SHEPPARD, 
 
Defendant. 
____________________________________/ 
DEFENDANT’S REPLY IN SUPPORT OF  
HIS MOTION FOR A BILL OF PARTICULARS 
 
The Defendant Eric Dean Sheppard, by and through his undersigned counsel, submits his 
Reply in support of his Motion for a Bill of Particulars. [ECF No. 37]. 
INTRODUCTION 
The Government’s Opposition to the Defendant’s Bill of Particulars is based on a wrong 
premise— that the defense is seeking: (1) evidence pre-trial it is not entitled to; and (2) the 
government’s theory of the case. The defense is not seeking either. It is seeking essential 
information necessary to prepare a defense. Specifically, Defendant seeks for the Government to 
identify the alleged misrepresentation(s) that resulted in the charges in the Indictment. The 
Government submits that it has provided over 11,000 pages of discovery and what the defense 
needs is within those 11,000 pages. The defense should not be required to conduct a fishing 
expedition, nor should the defense have to rely on its own assumptions and speculations to guess 
what exactly in the 11,000 pages formed the basis of the charges. Defendant seeks information 
that is necessary for the preparation of his defense and to minimize surprise at trial, and therefore, 
this Court should compel the Government to produce it.  
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A BILL OF PARTICULARS IS NECESSARY  
TO PROTECT MR. SHEPPARD’S CONSTITUTIONAL RIGHTS 
In its Response, the Government advances three main objections to the requested Bill of 
Particulars: (1) the defense is using a bill of particulars as an improper discovery device, where 
the defense is asking the Government to reveal its theory of the case1; (2) that the Indictment is 
sufficient to inform the Defendant of the charges; and (3) that what the defense needs is within the 
11,000 pages of discovery the Government produced. The Government’s arguments fail because 
the defense is not asking the Government to reveal its theory, nor is the defense asking to view the 
evidence the government intends to prove at trial— the defense is merely seeking basic 
information necessary for the preparation of his defense and to avoid surprise at trial.  
The Indictment is insufficient to inform the defense of the basis for the charges in the 
Indictment. The Government contends that the Indictment generally describes the types of 
misrepresentations made, which puts the Defendant on notice of the misrepresentations contained 
in each of the EIDL and PPP loan applications and that “the Defendant simply needs to review the 
loan applications and files [] to obtain the details.” [ECF No. 38, Response at 8-9]. As to the 
diversion of proceeds and name of the accomplices, the Government argues that the Defendant can 
look at the bank documents produced in discovery to determine whether the EIDL loan money was 
used for a permitted or unpermitted purpose, and that the names of the unidentified accomplices 
are also somewhere in the loan application files in discovery. [ECF No. 38, Response at 11, 13]. 
The problem with the Government’s assertions here is that first, the Indictment is completely 
insufficient and does not inform the Defendant of what misrepresentations for each loan 
 
1 “Notwithstanding, even if in providing those details in a bill of particulars, the government's 
evidence or theories are somehow disclosed, the bill of particulars still might be proper.” Elso v. 
United States, No. 03-20272-CR, 2010 WL 8675397, at *30 (S.D. Fla. Dec. 17, 2010).  
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application are the basis of each count.2 Second, the Government is essentially telling the defense 
to “Go Fish!” in the 11,000 pages of discovery to locate what misrepresentations the Government 
relied on in obtaining the Indictment and which will have to be defended at trial. This burden 
should not be placed on the defense and the defense should not have to rely on its own assumptions 
and speculations on a requisite element of the offense.3 The potential prejudice to the Defendant 
here is immeasurable, whereas there is no prejudice, and very little burden, to the Government to 
disclose the misrepresentations that are the basis of the charges. Doing so would not be disclosing 
the Government’s theory of the case, it would be advising the Defendant what he is charged with 
so that he can properly defend against it. 
Further, the Government argues that it is not required to tell the defense of the 
misrepresentations because the evidence is based on the Defendant’s own statements, and therefore 
he cannot claim unfair surprise at trial. Bickers, a case the Government relies on, explains: 
“opposition to a bill of particulars is not properly made out by a claim that the defendant knows 
what he did, and therefore, has all the information necessary.” United States v. Bickers, No. 1:18-
CR-98-SCJ-LTW, 2019 WL 7559292, at *7 (N.D. Ga. Sept. 17, 2019) (quoting United States v. 
Moore, 57 F.R.D. 640, 643 (N.D. Ga. 1972)) (internal quotations omitted); See also Elso v. United 
States, No. 03-20272-CR, 2010 WL 8675397, at *30 (S.D. Fla. Dec. 17, 2010) (citing same). Thus, 
 
2 The Indictment alleges that “[t]hese false and fraudulent PPP loan and EIDL applications 
included, among other things, falsified tax returns that purported to substantiate nonexistent 
business profits, and misrepresentations about the borrowing entities’ revenues, monthly payroll, 
and number of employees.” [ECF No. 1, Indictment at 5-6 (¶ 5); ECF No. 38, Response at 2]. 
3 “[W]here an indictment fails to set forth specific facts in support of requisite elements of 
the charged offense, and the information is essential to the defense, failure to grant a request 
for a bill of particulars may constitute reversible error.” United States v. Masino, No. 
3:16CR17-MCR, 2017 WL 6028374, at *1 (N.D. Fla. Nov. 29, 2017) (citing United States v. Cole, 
755 F.2d 748, 760 (11th Cir. 1985)). (emphasis added). 
 
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the Government cannot place the burden on the defense to figure out the basis of the charge 
because the defendant allegedly made the misrepresentations. This is inapposite to the purpose of 
a bill of particulars which is to inform the defendant of the charges against him with sufficient 
precision to allow him to prepare his defense, to minimize surprise at trial, and to enable him to 
plead double jeopardy in the event of a later prosecution for the same office. 
In its Response, the Government relies mainly on two cases, Bickers and Palacios,4 to 
support their objections. Both are easily distinguishable. In Bickers, unlike here, the defendant 
sought information it was not entitled to pre-trial by asking the Government questions that went to 
their theory of the case.5 Bickers, at *5, 8-9. The court in Bickers held that a bill of particulars was 
not necessary because the Indictment was “very exhaustive” and the “amount of detail in the 
Indictment together with the voluminous discovery produced by the Government,” provided 
sufficient information about the nature of the charges. Id. Here, unlike in Bickers, Defendant is not 
asking the Government to reveal information he is not entitled to. Defendant is not asking the 
Government to detail or explain how the statements are false or divulge the Government’s theory. 
Further, unlike in Bickers, the Indictment here is not extremely detailed or “very exhaustive” as to 
the basis for each count. Indeed, the Indictment is insufficient to enable Defendant to prepare for 
trial and avoid unfair surprise.   
 
4 United States v. Palacio, No. 21-20301-CR, 2021 WL 4066894 (S.D. Fla. Sept. 7, 2021). 
5 The defendant in Bickers specifically asked the Government: (1) what information the 
Government used to conclude that Defendant had any agency or authority with the City to 
influence or cause the award of contracts outside of her position and/or scope of employment; (2) 
in what way did Defendant represent Mitchell and Richards businesses to obtain City contracts; 
(3) how is it that Defendant's financial disclosure statement made retrospectively was made in 
furtherance of a conspiracy; (4) how did the filing of these financial disclosure statements further 
the conspiracy; and (5) how did filing false disclosure statements with the City cause the electronic 
transmission of her salary to be paid. Bickers, at *8. 
 
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The Government’s reliance on Palacio is equally misplaced. In Palacio, unlike here, the 
defendant moved for a bill of particulars as to the conspiracy count. Unlike in the case at bar, in 
Palacio, the Indictment did provide “detailed allegations” and the Government did advise the 
defendant of specific false statements. Unlike here, the defendant in Palacio asked the Government 
to provide information the defense was not entitled to: specific details on the materially false 
statements, to whom they were made, and the victims’ names. United States v. Palacio, No. 21-
20301-CR, 2021 WL 4066894, at *1-2 (S.D. Fla. Sept. 7, 2021). Defendant here is not seeking 
information he is not entitled to; he is merely seeking the misrepresentations that are the basis and 
element of the wire fraud counts. 
CONCLUSION 
The Government claims the defense is seeking information that it is not entitled to. As 
described above, that is not the case, and this Court should compel the Government to provide a 
bill of particulars to enable the Defendant to prepare a proper defense and avoid surprise at trial. 
District courts have broad discretion in deciding whether a bill of particulars should be granted, 
and this Court should exercise that discretion in favor of the defense to ensure the Defendant is 
informed of the charges against him with sufficient precision to allow him to prepare his defense, 
to minimize surprise at trial, and to enable him to plead double jeopardy in the event of a later 
prosecution. Palacio, No. 21-20301-CR, 2021 WL 4066894, at *2.  
 
 
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WHEREFORE, Defendant, Eric Dean Sheppard, respectfully requests that this Court 
direct the Government to provide a Bill of Particulars, and for such other and further relief as may 
be just and proper. 
Dated: December 29, 2022 
 
 
 
Respectfully submitted,  
NELSON MULLINS  
One Biscayne Tower, 21st Floor  
2 S. Biscayne Boulevard  
Miami, FL 33131  
Telephone: 305.373.9400  
Facsimile: 305.995.6449  
 
By: /s/ Jayne C. Weintraub 
Jon A. Sale  
Florida Bar No. 246387  
Jayne C. Weintraub 
Florida Bar No. 320382 
Jonathan Etra  
Florida Bar No. 686905 
Mark F. Raymond  
Florida Bar No. 373397  
Christopher Cavallo  
Florida Bar No. 0092305 
 
 
CERTIFICATE OF SERVICE 
 
I HEREBY CERTIFY that on December 29, 2022, the foregoing document was filed via 
the Court’s CM/ECF system to all counsel of record.  
/s/ Jayne C. Weintraub  
Jayne C. Weintraub 
Case 1:22-cr-20290-BB   Document 39   Entered on FLSD Docket 12/29/2022   Page 6 of 6

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