Order denying 37 Motion for Bill of Particulars as to Eric Dean Sheppard (1) — USA v. Sheppard (Dkt. 40, S.D. Fla.)

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U.S. District Court for the Southern District of Florida · No. 1:22-cr-20290-BB · Doc. 40 · 2023-01-19 · Docket on CourtListener

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UNITED STATES DISTRICT COURT 
SOUTHERN DISTRICT OF FLORIDA 
 
Case No. 22-cr-20290-BLOOM 
 
UNITED STATES OF AMERICA, 
 
Plaintiff, 
v. 
 
ERIC DEAN SHEPPARD, 
 
Defendant. 
______________________________/ 
 
ORDER ON MOTION FOR BILL OF PARTICULARS 
 
THIS CAUSE is before the Court upon Defendant Eric Dean Sheppard’s (“Defendant”) 
Motion for Bill of Particulars, ECF No. [37] (“Motion”). The Government filed its Response in 
Opposition, ECF No. [38] (“Response”), to which Defendant filed a Reply, ECF No. [39], 
(“Reply”). The Court has carefully reviewed the Motion, all opposing and supporting submissions, 
the record in this case, the applicable law, and is otherwise fully advised. For the reasons discussed 
below, the Motion is denied. 
I. 
BACKGROUND 
On June 29, 2022, the Government filed a six-count Indictment alleging that Defendant 
committed wire fraud in connection with three loan applications made under the Paycheck 
Protection Program (“PPP”) and three loan applications made under the Economic Injury Disaster 
Loan Program (“EIDL”). ECF No. [3]. The Indictment alleges that Defendant “did knowingly, and 
with intent to defraud, devise, and intend to devise a scheme and artifice to defraud, and to obtain 
money and property by means of materially false and fraudulent pretenses, representations and 
promises, knowing that the pretenses, representations, and promises were false and fraudulent 
when made…” Id. at ¶ 2. Relevantly, the Indictment states that Defendant “and other accomplices 
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submitted and caused to be submitted false and fraudulent PPP loan applications and EIDL 
applications…” Id. at ¶ 4. The Indictment asserts that “[t]hese false and fraudulent PPP loan and 
EIDL 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.” Id. at ¶ 5. 
On December 9, 2022, Defendant filed the instant Motion seeking a bill of particulars and 
contends that the Indictment does not provide sufficient notice of the alleged fraudulent 
misrepresentations, alleged diversion of proceeds, or identities of alleged accomplices. ECF No. 
[37]. The Government responds that it has sufficiently disclosed the requested information in the 
Indictment and the discovery, and a bill of particulars is not necessary. ECF No. [38]. The 
Government argues that the Motion should be denied because Defendant seeks information 
detailing the Government’s theory of the case at trial, which Federal Rule of Criminal Procedure 
7(f) does not authorize. Id. Defendant replies that Court should exercise its broad discretion to 
grant a bill of particulars because the Government’s Response was based on the incorrect premise 
that Defendant seeks evidence pre-trial to which he is not entitled and to discover the 
Government’s theory of the case. ECF No. [39]. 
II. 
LEGAL STANDARD 
Federal Rule of Criminal Procedure 7(f) governs motions for bills of particulars: 
The court may direct the government to file a bill of particulars. The defendant may 
move for a bill of particulars before or within 10 days after arraignment or at a later 
time if the court permits. The government may amend a bill of particulars subject 
to such conditions as justice requires. 
Fed.R.Crim.P. 7(f).  
“The purpose of a true bill of particulars is threefold: to inform the defendant of the charge 
against him with sufficient precision to allow him to prepare his defense, to minimize surprise at 
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trial, and 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) (internal quotation 
marks and citation omitted). “A bill of particulars, properly viewed, supplements an indictment by 
providing the defendant with information necessary for trial preparation.” Id. (emphasis in 
original). 
 
“[A] defendant is not entitled to a bill of particulars ‘with respect to information which is 
already available through other sources.’” United States v. Martell, 906 F.2d 555, 558 (11th Cir. 
1990) (quoting United States v. Rosenthal, 793 F.2d 1214, 1227 (11th Cir.)); see also United States 
v. Roberts, 174 F. App’x 475, 478 (11th Cir. 2006) (“A bill of particulars is not required where the 
information sought has already been provided by other sources, such as the indictment and 
discovery and it is not designed to compel the government to detailed exposition of its evidence 
or to explain the legal theories upon which it intends to rely at trial.” (internal quotation marks 
omitted)). 
III. 
DISCUSSION 
As noted, Defendant seeks a bill of particulars and argues that the Indictment does not 
provide sufficient notice of the alleged fraudulent misrepresentations, alleged diversion of 
proceeds, or identities of alleged accomplices. ECF No. [37]. The Government responds that it has 
sufficiently disclosed the requested information and Defendant seeks information detailing the 
Government’s theory of the case not authorized by Federal Rule of Criminal Procedure 7(f). ECF 
No. [38]. The Court addresses each argument in turn. 
A. Fraudulent Misrepresentations  
Defendant claims the overboard, general claims of misrepresentation contained in the 
Indictment are insufficient because (1) the Government included the safety hatch language 
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“included, among other things;” (2) the Indictment does not attempt to identify a single alleged 
materially false and fraudulent representation for each Loan Application that is charged in each 
separate count; and (3) 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. 
ECF No. [37] at 3. Defendant points out that “[i]n a wire fraud charge a defendant must be provided 
notice as to which of his statements the government contends are false or fraudulent” ECF No. 
[37] at 2 n. 1 (citing 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)).  
The Government responds that the Defendant has full notice of the wire fraud charges 
against him through both the Indictment and discovery. ECF No. [38] at 4. The Government cites 
both an Eleventh Circuit decision affirming the district court’s denial of a bill of particulars that 
sought every material misrepresentation the government intended to show at trial, and cites 
numerous cases from this district and the Northern District of Georgia finding that a bill of 
particulars was unnecessary to avoid surprise or prepare a defense. ECF No. [38] at 5-10 (citing 
United States v. Holzendorf, 576 F. App’x 932, 935-36 (11th Cir. 2014); United States v. Detling, 
1:18-CR-309-LMM-LTW, 2019 WL 3006623 (N.D. Ga. Apr. 30, 2019), report and 
recommendation adopted, 1:18-CR-309-LMM-LTW, 2019 WL 2284726 (N.D. Ga. May 29, 
2019); United States v. Bickers, 1:18-CR-98-SCJ-LTW, 2019 WL 7559292 (N.D. Ga. Sept. 17, 
2019), report and recommendation adopted, 1:18-CR-00098-SCJ, 2019 WL 5587050 (N.D. Ga. 
Oct. 30, 2019); United States v. Palacio, 21-20301-CR, 2021 WL 4066894 (S.D. Fla. Sept. 7, 
2021)). 
The Court finds Holzendorf to be controlling. In Holzendorf, the Eleventh Circuit noted 
that the request for a bill of particulars “was nothing more than a thinly veiled attempt to have the 
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government make a detailed disclosure of the evidence that it planned to present at trial” which is 
“not an appropriate basis for seeking a bill of particulars.” Holzendorf, 576 F. App’x at 935-36. In 
that case the Defendant “sought a bill of particulars detailing every single material 
misrepresentation the government intended to show at trial.” Id. at 935. The Eleventh Circuit 
pointed out that the information sought was already available from other sources including 
coconspirators’ trial transcripts and the government’s response which listed nine types of 
misrepresentations that it intended to prove at trial. Id. at 936. As a result, the Eleventh Circuit 
determined that the defendant could not show that he was actually surprised at trial. Id.  
Here too, Defendant will not be surprised at trial if the Court declines to grant a bill of 
particulars. The facts of the two cases are analogous. Defendant requests that the Government 
provide a bill of particulars stating all of the misrepresentations upon which it intends to rely, and 
the Government responds that it has already provided everything necessary for Defendant to 
prepare his defense. The Government in its Response refers Defendant to the misrepresentations 
it intends to prove at trial. See ECF No. [38] at 9. The Government states “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.” Id. In light of the 
disclosures made by the Government and the similarity in both the scope of the request and the 
circumstances between Holzendorf and the instant case, the Court agrees with the Government that 
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a bill of particulars is not necessary to supplement the Indictment to detail the fraudulent 
misrepresentations upon which the Government will rely.  
In this case Defendant argues that the Indictment is insufficient to inform the defense of 
the basis for the charges in the Indictment, the Government is attempting to burden the defense 
with fishing through 11,000 pages of discovery to locate what misrepresentations the Government 
relied on in obtaining the Indictment, and the Government cannot say that just because the 
misrepresentations are based on the Defendant’s own statements the Government is not required 
to tell the defense of the misrepresentations because the Defendant will not be unfairly surprised. 
ECF No. [39] at 2-3. To the extent that the Indictment lists certain fraudulent misrepresentations 
“among other things,” see ECF No. [3], the Court is persuaded that the Government has provided 
discovery to supplement the Indictment and inform the Defendant of the fraudulent 
misrepresentations it intends to present at trial. Furthermore, the Government has directed 
Defendant to the loan applications which contain the misrepresentations, so Defendant is not being 
burdened with a “fishing expedition” as he complains.  
B. Diversions of Proceeds 
Defendant contends that a bill of particulars listing Defendant’s alleged misuse and 
diversion of proceeds is necessary because the allegations about alleged misuse and diversion of 
proceeds in the Indictment provide insufficient notice. ECF No. [37] at 4. Specifically, Defendant 
argues that (1) the Indictment fails to identify the alleged misuses or diversion at all and certainly 
on a per-loan and per-count basis and (2) the Indictment is contradictory, confusing, and unclear 
on whether the alleged misuse and diversion are part of the charged crimes themselves as opposed 
to motive to commit them. Id.  
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The Government responds that the Indictment explains 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. [38] at 11. The Government argues that Defendant’s request is an attempt 
to obtain the Government’s theory of the case as to the improper use. ECF No. [38] at 11-12 (citing 
Jafari, 2020 WL 7090698, at *6; Palacio, 2021 WL 4066894 at *2-3). The Government contends 
that Defendant can “look at the bank documents produced in discovery to determine whether the 
EIDL money was used for a permitted or unpermitted purpose.” Id. at 11. The same can be done 
for funds obtained through the PPP loans. See id. 
The Government has made a persuasive showing that the information sought in a bill of 
particulars is readily available to Defendant via specific discovery already produced. Just as with 
the request for a bill of particulars detailing fraudulent misrepresentations, here the Government 
has provided all of the information necessary for Defendant to prepare his defense. The 
Government provided the rules regarding how the loan funds were permitted to be used and bank 
records demonstrating how the funds were actually used. Defendant therefore has all of the 
information necessary to avoid surprise at trial. As stated above, “A bill of particulars is not 
required where the information sought has already been provided by other sources…” Roberts, 
174 F. App’x at 475. Therefore, the Court denies the request for a bill of particulars regarding the 
alleged misuse and diversion of proceeds. 
C. Accomplices and Others 
Defendant argues that the Indictment does not disclose the identities of the unnamed 
“accomplices” and “others” involved in the charged crimes. Although Defendant indicates that 
there is sometimes a reason not to disclose the identities of unindicted co-conspirators, there does 
not appear to be any justification here. ECF No. [37] at 5. Defendant also argues that the 
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information was not disclosed in discovery either. Id. The Government responds that the Court 
should deny the request for the names of any accomplices because a bill of particulars is not the 
appropriate vehicle to seek such information and that the information is already available in the 
discovery. ECF No. [38] at 12. 
In support of his Motion, Defendant cites United States v. Barrentine, saying “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.” ECF No. [37] at 5 n. 2 (citing Barrentine, 591 F.2d 1069, 1077 (5th Cir. 1979)). In Velez, 
the court considered that argument and determined that Barrentine still controls, and a bill of 
particulars is proper to obtain the identity of unindicted participants. Velez, 2008 WL 11454798, 
at *1-*2. The Government responds that a criminal defendant does not have a right to obtain a list 
of witnesses by calling his request a bill of particulars. ECF No. [38] at 12 (citing Palacios, 2021 
WL 4066894 at *2–4).  
Since the ruling in Barrentine, the Eleventh Circuit ruled in Anderson that, “[t]o allow the 
bill of particulars to serve as a wholesale discovery device would actually frustrate the federal 
discovery rule.” United States v. Anderson, 799 F.2d at 1442. The Eleventh Circuit stated that “[a] 
defendant who desires a list of government witnesses—or “unindicted co-conspirators”—could [] 
bypass the Rule 16(b) restriction on discovery by asking for and receiving a “bill of particulars” 
pursuant to Fed.R.Crim.P. 7(f).” Id. Ultimately, the Eleventh Circuit declined “to apply a 
mechanical rule whereby a bill of particulars is automatically accorded the status of a supplement 
to an indictment.” Id. 
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Analyzing the Motion under the facts of this case, the Court agrees with the Government. 
The Government contends that it provided the names of any accomplices in the discovery already 
turned over and Defendant need only read the loan documents which constitute the first 750 pages 
of discovery in order to discover the names of any accomplices. ECF No. [38] at 13. Moreover, 
Defendant is charged with six separate counts of Wire Fraud and there is no element of any count 
of the Indictment that requires the Government to prove that the Defendant engaged in a conspiracy 
or acted in concert with another. See ECF No. [3]. Because the information is available to 
Defendant and not an element of any charged offense, the Court denies Defendant’s request for a 
bill of particulars identifying unnamed accomplices and others involved in the charged crimes. 
IV. 
CONCLUSION 
Accordingly, it is ORDERED AND ADJUDGED that the Motion, ECF No. [37], is 
DENIED. 
DONE AND ORDERED in Chambers at Miami, Florida, on January 19, 2023. 
 
 
 
 
_________________________________ 
BETH BLOOM 
UNITED STATES DISTRICT JUDGE 
Copies to:  
 
Counsel of Record 
 
 
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