Motion to Bifurcate by Eric Dean Sheppard. Responses due by 9/29/2023 — USA v. Sheppard (Dkt. 81, S.D. Fla.)

Record facts

U.S. District Court for the Southern District of Florida · No. 1:22-cr-20290-BB · Doc. 81 · 2023-09-15 · 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 ERIC DEAN SHEPPARD’S MOTION TO BIFURCATE  
FORFEITURE AND REQUEST FOR JURY TRIAL  
Defendant Eric Dean Sheppard moves the Court to bifurcate the trial of the forfeiture 
counts in the Superseding Indictment from the “merits”/ substantive charges at trial. Mr. Sheppard 
also formally requests a trial by jury on the forfeiture issues pursuant to Fed. R. Crim. P. 32.2(b)(5). 
In support, Mr. Sheppard states: 
The Superseding Indictment filed on August 24, 2023 alleges that Mr. Sheppard is subject 
to various forfeitures pursuant to 18 U.S.C. § 981(a)(1)(C).  The Government claims that if, in the 
event there is a conviction in this case, that forfeiture would be sought “but is not limited to”: his 
home, which is real property located at 180 Bal Cross Drive, Bal Harbour, Florida 33154-1390 
and approximately $893,145 that the Government alleges as the total amount of the funds traceable 
to the alleged charged offenses as a result of the funds provided to Mr. Sheppard. 
Mr. Sheppard requests, pursuant to Fed R. Crim. P. 32.2(b), that in the event of guilty 
verdicts, all forfeiture issues be submitted to the jury, but only separate from and after the “guilt 
phase” of the trial. Rule 32.2(b)(5) affords a defendant with the right to a trial by jury on the 
forfeiture issues. Fed. R. Crim. P. 32.2(b)(5). The jury will have to return a special verdict with 
Case 1:22-cr-20290-BB   Document 81   Entered on FLSD Docket 09/15/2023   Page 1 of 3

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respect to the forfeiture issues. Id. The forfeiture issues are plainly distinct from the issues of guilt 
and the jury will have to be specifically instructed on the forfeiture issues.  
In order to avoid jury confusion and unfairness to Mr. Sheppard, and to prevent the 
consideration of forfeiture evidence that is not admissible on the issue of guilt, Mr. Sheppard 
requests that trial proceedings be bifurcated. Bifurcation will also conserve judicial resources: if 
the jury returns not guilty verdicts, then the issue of forfeiture does not need to be reached and no 
evidence relating to the forfeiture need to be taken. 
A defendant has both a privilege not to testify on the issue of guilt and a right to defend his 
property against the government’s forfeiture efforts. Bifurcation of the guilt and forfeiture 
proceedings is necessary to effectuate both of these constitutional protections. U.S. v. Sandini, 816 
F.2d 869, 873-74 (3d Cir. 1987). Without full bifurcation, a defendant who wishes to testify on the 
issue of forfeiture but does not on the issue of guilt “faces a Hobson’s choice.” Id. at 874. Other 
courts have found Sandini’s analysis persuasive, at least where the defendant has made the trial 
court aware of his desire to testify on the forfeiture issues. See U.S. v. Elgersma, 971 F.2d 690, 
697 (11th Cir. 1992) (en banc) (Kravitch, J., specially concurring) (recognition that burden of 
proof on forfeiture is preponderance of the evidence makes need for bifurcation even more 
manifest to avoid misleading jury into applying preponderance standard on issue of guilt); U.S. v. 
Jenkins, 904 F.2d 549 (10th Cir.), cert. denied, 498 U.S. 962 (1990); U.S. v. Feldman, 853 F.2d 
648 (9th Cir.)., cert. denied, 489 U.S. 1030 (1988). 
 
CONCLUSION 
WHEREFORE, Defendant Eric Dean Sheppard requests that this Court bifurcate the 
proceedings on forfeiture from those on the issue of guilt. 
 
Case 1:22-cr-20290-BB   Document 81   Entered on FLSD Docket 09/15/2023   Page 2 of 3

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MEET AND CONFER CERTIFICATE 
Undersigned counsel has conferred with the Government, who states that the Government 
does not object to the bifurcation of the asset forfeiture part of the trial but does object to excluding 
financial evidence showing the flow of the money obtained by the alleged fraud. 
Dated: September 15, 2023   
 
 
 
 
 
 
 
 
 
Respectfully submitted,  
NELSON MULLINS  
One Biscayne Tower, 21st Floor  
2 S. Biscayne Boulevard  
Miami, FL 33131  
Telephone: 305.373.9400  
By: /s/ Jayne C. Weintraub 
Jayne C. Weintraub 
Florida Bar No. 320382 
Jonathan Etra  
Florida Bar No. 686905 
Christopher Cavallo  
Florida Bar No. 0092305 
 
 
CERTIFICATE OF SERVICE 
 
I HEREBY CERTIFY that on September 15, 2023 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 81   Entered on FLSD Docket 09/15/2023   Page 3 of 3

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