Notice of Intent to Use Rule 404(b) Evidence by USA as to Eric Dean Sheppard — USA v. Sheppard (Dkt. 77, S.D. Fla.)

Record facts

U.S. District Court for the Southern District of Florida · No. 1:22-cr-20290-BB · Doc. 77 · 2023-09-14 · Docket on CourtListener

Full text

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UNITED STATES DISTRICT COURT 
SOUTHERN DISTRICT OF FLORIDA 
 
CASE NO.  22-20290-CR-BLOOM(s)      
 
UNITED STATES OF AMERICA 
 
vs. 
 
 
 
 
 
 
 
 
ERIC DEAN SHEPPARD, 
 
                
Defendant. 
__________________________________/ 
 
 
UNITED STATES’ NOTICE OF INTENT 
TO USE RULE 404(B) EVIDENCE 
 
 
The United States of America, through the undersigned Assistant United States Attorney, 
files this Notice, pursuant to Federal Rule of Evidence 404(b)(3), of its intent to use certain 
evidence at trial.   
 
The defendant is charged with nine counts of wire fraud, 18 U.S.C. § 1343, and five counts 
of aggravated identity theft, 18 U.S.C. § 1028A(a)(1), relating to the submission of false and 
fraudulent loan applications under the Paycheck Protection Program and the Economic Injury 
Disaster Loan program, two loan programs backed and funded through the U.S. Small Business 
Administration.  The defendant’s loan applications not only contained materially false information, 
but many of the supporting documents were falsified, and some were forged with the name, title 
and signature of others. 
During an interview of a potential witness in this case, J.G., last Friday, September 8, 2023, 
the United States learned of evidence it will seek to introduce at trial pursuant to Federal Rule of 
Evidence Rule 404(b), for the purpose of proving intent, preparation, plan, knowledge, absence of 
mistake, or lack of accident.  J.G. worked for the defendant for the past 20 years, through the end 
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of March 2020.  J.G. had significant responsibilities for the defendant’s businesses, having been 
the chief financial officer for a few years, and later as a full-time consultant/independent contractor 
for the defendant’s real estate business.   
In 2019, J.G. learned that in 2018, the defendant had forged J.G.’s signature and had 
misrepresented J.G. as the applicant/sponsor for a non-immigrant visa application on behalf of an 
individual who would purportedly fill a full-time “graphic designer” position at the defendant’s 
business, HM Management and Development, LLC.  The misrepresentations and the forged 
signature of J.G. were made on a company letter addressed to the United States Embassy in 
Mexico, purportedly submitted by J.G., as the Chief Financial Officer (which he no longer was), 
and on a form prepared for filing with the U.S. Department of Homeland Security in which the 
defendant’s immigration counsel (not counsel in this case) entered a notice of appearance on behalf 
of the applicant/ sponsor, J.G.  Upon learning of the defendant’s unauthorized misuse of his name 
and signature, J.G. confronted the defendant about it.  The defendant responded by saying, in 
effect, that he would have to clean up the problem that J.G. created, and the defendant then wrote 
a letter to the immigration counsel to whom the defendant had provided the forged documents.  In 
the letter, the defendant attempted to explain the “misunderstanding” surrounding the use of J.G.’s 
signature.    
The government intends to introduce the evidence outlined in this Notice for the uses 
authorized by Fed. R. Evid. 404(b), specifically for the purpose of proving intent, opportunity, 
preparation, plan, knowledge, absence of mistake, and lack of accident.  The Eleventh Circuit has 
long held that the admissibility of Aother crimes@ evidence pursuant to Rule 404(b) must be 
determined by applying a three-part test: (1) it must be relevant to an issue other than the 
defendant=s character; (2) the act must be established by sufficient proof for the jury to find that 
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the defendant committed the extrinsic act by a preponderance of the evidence; and (3) the probative 
value must not be substantially outweighed by its undue prejudice.  United States v. Chavez, 204 
F.3d 1305, 1317 (11th Cir. 2000); United States v. Zapata, 139 F.3d 1355 (11th Cir. 1998).  
AA defendant who enters a not guilty plea makes intent a material issue which imposes a 
substantial burden on the government to prove intent, which it may prove by qualifying Rule 
404(b) evidence absent affirmative steps by the defendant to remove intent as an issue.@  Zapata, 
139 F.3d at 1358.  A>Where the extrinsic offense is offered to prove intent, its relevance is 
determined by comparing the defendant=s state of mind in perpetrating both the extrinsic and 
charged offenses.=@ United States v. Edouard, 485 F.3d 1324, 1345 (11th Cir. 2007) (quoting United 
States v. Dorsey, 819 F.2d 1055, 1059 (11th Cir. 1987)); see also, United States v. Ellisor, 522 F.3d 
1255 (11th Cir. 2008).   
The events that J.G. would describe involve making material misrepresentations to federal 
agencies – the U.S. Department of State and the Department of Homeland Security – and making 
it appear as if a different representative of the business, i.e. J.G., was the one putting forth the 
information.  The defendant used J.G.’s identity without his knowledge or consent on documents 
containing false representations.  The defendant’s conduct in this case indicates he had the same 
state of mind in presenting false information to lenders and the SBA, including on tax returns and 
other documents that were falsified and forged.  The defendant again used other individuals’ titles 
and identities without their knowledge or consent on the falsified and forged documents.   
In United States v. Barrington, the Eleventh Circuit upheld the admissibility of Rule 404(b) 
evidence where the defendant was charged with conspiracy to commit wire fraud and aggravated 
identity theft in a scheme to change students’ grades on the university’s grading system.  648 F.3d 
1178 (11th Cir. 2011).  The Court found that the testimony of a cooperating co-defendant that the 
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defendant had previously changed grades using forged instructor signatures on grading documents 
was highly probative of the defendant’s intent.  Id. at 1187.  In Barrington, the Court found that 
the state of mind required for the charged offense and the extrinsic act was identical, and thus, the 
first prong of the Rule 404(b) test was satisfied; the uncorroborated testimony of the co-defendant 
was sufficient evidence for the jury to find that the defendant committed the extrinsic act; and the 
probative value of the extrinsic evidence was not outweighed by unfair prejudice.  Id.;  see also, 
United States v. Garcia, 880 F.2d 1277 (11th Cir. 1989) (Court upheld Rule 404(b) evidence of the 
defendant previously signing another individual’s name to a document where the defendant was 
charged with making false statements on a loan application).   
In this case, the state of mind required for the charged offenses is the same as the state of 
mind of the defendant in committing the extrinsic act, and thus, the 404(b) conduct is highly 
probative of his intent.  The expected evidence would be proved by the testimony of J.G., copies 
of the falsified and forged documents that J.G. received, and a copy of the defendant’s letter to his 
former immigration counsel making implied admissions about his conduct.  The records are 
expected to corroborate the witness, and the evidence in its totality will satisfy the government’s 
burden to establish the extrinsic acts by a preponderance of the evidence.  Finally, any risk of 
unfair prejudice possibly caused by admitting evidence of other fraudulent activity described here 
“will be mitigated by the district court’s limiting instruction to the jury.”  Eduard, 485 F.3d at 1346 
(in drug trafficking case, court upheld admissibility of Rule 404(b) evidence of defendant’s prior 
drug smuggling activities and found that any unfair prejudice was reduced by the court’s limiting 
instruction to the jury).   
. 
 
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Respectfully submitted, 
                                                 
 
MARKENZY LAPOINTE 
                                                 
 
UNITED STATES ATTORNEY 
 
                                          
 
By:    s/Aimee C. Jimenez            
                                                 
 
Aimee C. Jimenez 
                                                 
 
Assistant United States Attorney 
                                                 
 
Court No. A5500795 
                                                 
 
99 N.E. 4th Street 
                                                 
 
Miami, Florida 33132-2111 
                                                 
 
Tel: (305) 961-9028 
                                                 
 
Fax: (305) 530-7976 
                                                 
 
Email: aimee.jimenez@usdoj.gov 
 
 
 
CERTIFICATE OF SERVICE 
 
I HEREBY CERTIFY that on September 14, 2023, I electronically filed the foregoing  
 
document with the Clerk of the Court using CM/ECF.  
 
s/Aimee Jimenez                           
Aimee C. Jimenez 
Assistant United States Attorney 
 
 
 
Case 1:22-cr-20290-BB   Document 77   Entered on FLSD Docket 09/14/2023   Page 5 of 5

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