Motion for A Written Jury Questionnaire by Eric Dean Sheppard — USA v. Sheppard (Dkt. 83, S.D. Fla.)

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U.S. District Court for the Southern District of Florida · No. 1:22-cr-20290-BB · Doc. 83 · 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’S MOTION FOR A WRITTEN JURY QUESTIONNAIRE   
 
 
The Defendant, Eric Sheppard, by and through his undersigned counsel, hereby moves this 
Honorable Court to grant the use of a proposed brief jury questionnaire (Exhibit A), unique to this 
case, for the following reasons: 
 
The Government has charged the Defendant with Wire Fraud in obtaining loans through 
the SBA EIDL loan program and the Payment Protection Plan Act enacted by Congress in response 
to the pandemic. For a myriad of reasons, this topic has often been in the headlines and 
unfortunately is alleged to have been rampant particularly in South Florida. See Ryan Tracy, 
Evidence of PPP Fraud Mounts, Officials Say, THE WALL STREET JOURNAL (Nov. 8, 2020) 
(Exhibit B); Ken Dilanian and Laura Strickler, ‘Biggest fraud in a generation’: The looting of the 
Covid relief plan known as PPP, NBC News (March 28, 2022) (Exhibit C). The headlines on PPP 
loan fraud have often shown those convicted of buying expensive cars and living lavishly with the 
PPP monies. Id. In fact, Mr. Sheppard has been the spotlight of several headlines. See Jay Weaver, 
Prominent Florida developer got $900,000 in pandemic loans. Feds charge him with fraud, MIAMI 
HERALD (August 10, 2023) (Exhibit D); South Florida U.S. Attorney’s Office to Lead COVID-19 
Fraud Strike Force Team Against Pandemic Relief Fraud, UNITED STATES ATTORNEY’S OFFICE 
Case 1:22-cr-20290-BB   Document 83   Entered on FLSD Docket 09/15/2023   Page 1 of 7

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SOUTHERN DISTRICT OF FLORIDA (September 15, 2022) (Exhibit E); Francisco Alvarado, Feds slap 
Bal Harbour-based developer Eric Sheppard with PPP fraud indictment, THE REAL DEAL (July 
15, 2022) (Exhibit F).  
This case, when it comes to trial, will fall under the wide umbrella the Government has 
opened regarding fraud and abuse of these loans—but, in this case, the allegations are not that the 
monies were misspent on such luxury. The pandemic created a chaotic crisis for our country on 
many levels. Unfortunately, many people consider the loans offered to be a political issue. These 
issues are better left outside of the courtroom, and candid responses about these loans can only be   
done, through the use of the brief jury questionnaire proposed, so that the potential juror feels free 
to candidly reply.  
I. 
The Confluence of Pretrial Publicity and Heightened Risk of Prejudgment 
Necessitates a Written Jury Questionnaire   
“The Constitution guarantees both criminal and civil litigants a right to an impartial jury” 
and “voire dire can be an essential means of protecting this right.” Berthiaume v. Smith, 875 F.3d 
1354, 1358 (11th Cir. 2017) (citing Warger v. Shauers, 135 S. Ct. 521, 528-29 (2014)). “[J]ury 
selection falls ‘particularly within the province of the trial judge.’” United States v. Tsarnaev, 142 
S.Ct. 1024, 1034 (2022) (quoting Shilling v. United States, 561 U.S. 358, 386 (2010)) “A trial 
court’s broad discretion in this area includes deciding what questions to ask prospective jurors.” 
Id. “[T]he district court’s duty is to conduct a thorough jury-selection process that allows the judge 
to evaluate whether each prospective juror is ‘to be believed when he says he has not formed an 
opinion about the case.’” Id. (quoting Mu’Min, 500 U.S. at 425). Voir dire plays an important 
role in the jury selection process by allowing the Court and parties to uncover actual, 
implied, or inferred bias to ensure that juries are fair and impartial.  It serves to protect the 
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Constitutional right of a fair trial “by exposing possible biases, both known and unknown, 
on the part of potential jurors.” McWhorter v. Comm'r, Alabama Dep't of Corr., 824 Fed. Appx. 
773, 781 (11th Cir. 2020) (citing McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 
554, 104 S. Ct. 845, 849, 78 L.Ed.2d 663 (1984)) (emphasis added). 
A case-specific juror questionnaire can help trial courts satisfy their duty to suss out juror 
partiality or bias created by media reporting. Most recently, in Tsarnaev, the Supreme Court 
approvingly recounted the trial judge’s use of a questionnaire: 
The questionnaire asked prospective jurors what media sources they 
followed, how much they consumed, whether they had ever commented on the 
bombings in letters, calls, or online posts, and, most pointedly, whether any of that 
information had caused the prospective juror to form an opinion about [the 
defendant’s] guilt or punishment. The court then subjected those 256 prospective 
jurors to three weeks of individualized voir dire in which the court and both parties 
had the opportunity to ask additional questions and probe for bias. [Defense] 
attorneys asked several prospective jurors what they had heard, read, or seen about 
the case in the media. The District Court also provided emphatic and clear 
instructions on the sworn duty of each juror to decide the issues only on evidence 
presented in open court. 
Id. at 1035 (citations omitted). In Skilling, the Court similarly noted that the juror 
questionnaire “helped to identify prospective jurors excusable for cause and served as a 
springboard for further questions put to remaining members of the array.” 561 U.S. at 388. 
A jury questionnaire is appropriate in this case to ensure that Mr.  Sheppard’s defense will 
seat jurors without learning and or exposing their bias’ and prejudice. His case sits at the 
confluence of several forces that jeopardize his right to a fair trial: pretrial publicity, guilt-by-
imagined-association within the political arena that Congress enacted the CARES Act, and 
therefore, there is a heightened risk of animus and prejudgment in the era of political division. Any 
one of these alone would likely warrant the enhanced procedural protections requested herein; the 
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presence of all three makes it necessary. As the Eleventh Circuit explained: “[w]ritten 
questionnaires are now a common complement to oral examination when selecting an effective 
and impartial jury. As the Second Circuit observed not too long ago, courts ‘routinely employ 
questionnaires to facilitate voir dire in a number of circumstances.’” United States v. Isaacson, 
752 F.3d 1291, 1301 (11th Cir. 2014) (citing United States v. Quinones, 511 F.3d 289, 299 (2d 
Cir.2007) (italics omitted) (finding that written questionnaires can be used as part of the voir dire 
process noting “District courts routinely employ questionnaires to facilitate voir dire in a number 
of circumstances,” including “where there has been extensive pre-trial publicity.”).  
For instance, in the high-profile securities fraud trial of Enron executive Jeffrey Skilling, 
the district court issued a 14-page questionnaire that included 77 questions asking prospective 
jurors about “their sources of news and exposure to Enron-related publicity, beliefs concerning 
Enron and what caused its collapse, opinions regarding the defendants and their possible guilt or 
innocence, and relationships to the company and to anyone affected by its demise.” Skilling v. 
United States, 561 U.S. 358, 371 (2010). The Supreme Court determined on appeal that the 
extensive screening questionnaire and follow-up voir dire overcame a presumption of juror 
prejudice based on pretrial publicity or widespread community impact of the company’s 
bankruptcy. See id. at 384. Skilling also instructed lower courts on the proper procedure in the 
event a questionnaire response necessitates further inquiry. Such follow-up voir dire should be 
individualized and outside the presence of the other jurors, “thus preventing the spread of any 
prejudicial information to other venire members.” 561 U.S. at 389. 
The protocol endorsed in Skilling and requested by Mr. Sheppard, a written jury 
questionnaire, is essential in this case. It will decrease the likelihood of seating a juror who has 
been tainted by the highly prejudicial portrayals of people who have been granted these loans. 
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Further, these procedural protections are warranted when, as here, the case touches on issues likely 
to unfairly incite animus and prejudgment against a party.   
In addition to guarding against prejudice, a written jury questionnaire will decrease the 
Court time necessary to complete the jury selection process and will facilitate the gathering of 
important, candid, and relevant information necessary to afford the parties a fair trial. Using a 
written questionnaire is more efficient than oral examination alone in highly-publicized cases. 
United States v. Isaacson, 752 F.3d 1291, 1301 (11th Cir. 2014) (noting that courts routinely 
employ questionnaires to facilitate voir dire in a number of circumstances). That is because 
administering a questionnaire decreases the time necessary to complete the jury selection process 
because it can be completed without the supervision of the court, and the parties can use the 
responses to pinpoint areas requiring follow-up inquiry. See Barbra Allen Babcock, Voir Dire: 
Preserving “Its Wonderful Power”, 27 STAN. L. REV. 545, 563-64 & n. 70 (1975) (“A sworn 
questionnaire . . . might gather from jurors answers to basic questions about themselves with face-
to-face inquiry reduced to certain key issues on which the reactions of the individual and 
observation of her or his manner are important . . . An unintrusive  yet thorough   questionnaire 
would be more revealing and would concomitantly reduce the need for extended   questioning . . . 
Face-to-face questioning would then be reserved for the issues on which probing is necessary, such 
as prejudice against the litigant or bias arising from the facts of the particular case.”); see also Hon. 
Barbara M.G. Lynn (N.D. Tex.), From the Bench: A Case for Jury Questionnaires, 33 
LITIGATION MAGAZINE No. 4 (Summer 2007) ([q]uestionnaires provided “more information 
in a faster and more organized way than could be gathered in a reasonable amount of time by 
questioning in court.) 
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CONCLUSION 
 
For the foregoing reasons, it is respectfully requested that the Court grant this Motion for 
a Written Jury Questionnaire, specifically, for the Jury Questionnaire attached to this Motion as 
Exhibit A.  
 
Moreover, it is respectfully requested that the jurors be brought to the courthouse early 
Tuesday morning, September 26, to fill out the questionnaires. Counsel for the defense requests to 
be able to pick them up at the courthouse by midday1 so that they can be reviewed in a meaningful 
way and be ready to commence with Voir Dire on Wednesday, September 27.  
MEET AND CONFER CERTIFICATION 
The defense conferred with the Government who oppose the questionnaire but not the 
proposed questions. 
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 
 
 
 
 
 
1 Undersigned counsel intends to ask the court to begin trial on September 27 as September 25 is 
a Holy day for the defense team, and involves a 24 hour fast. It will be a hardship to begin trial the 
very next morning without having a day, physically and mentally to reset -- especially to begin 
trial with a person’s liberty at stake. 
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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 83   Entered on FLSD Docket 09/15/2023   Page 7 of 7

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