Motion to Dismiss 60 Indictment by Eric Dean Sheppard. Responses due by 9/29/2023 — USA v. Sheppard (Dkt. 85, S.D. Fla.)

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U.S. District Court for the Southern District of Florida · No. 1:22-cr-20290-BB · Doc. 85 · 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 TO DISMISS 
 
The Defendant Eric Dean Sheppard, by and through his undersigned counsel, submits this 
Motion to Dismiss to dismiss the Superseding Indictment [D.E. 60] in its entirety, pursuant to Fed. 
R. Crim. P. 12(b)(3) because the Superseding Indictment is the product of vindictive prosecution, 
Counts 10-14 fail to state an offense, and the forfeiture charges are defective.  
BACKGROUND 
Mr. Sheppard was charged in June of 2022 with six counts of Wire Fraud, one count for 
each of the six different loan applications he allegedly applied for through three different 
companies. A little less than a year after Mr. Sheppard was charged, Mr. Sheppard and the 
Government engaged in failed plea negotiations, where the Government threatened Mr. Sheppard 
with adding an additional charge of Aggravated Identity Theft charge if Mr. Sheppard did not 
accept the plea. Mr. Sheppard ultimately rejected the plea offer and elected to go to trial. In what 
can only be described as a vindictive effort to punish Mr. Sheppard for exercising his constitutional 
right to go to trial, the Government filed a Superseding Indictment, not only adding the Aggravated 
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Identity Theft charge it had threatened, but also added four additional counts of Aggravated 
Identity Theft and six additional counts of Wire Fraud less than five weeks prior to trial.  
The Superseding Indictment drastically changed the charges against Mr. Sheppard. It 
charged Mr. Sheppard with six additional Wire Fraud counts which were deliberately not charged 
for more than a year since the original Indictment. [D.E. 60 at 7]. Instead of having one count for 
each of the loan applications, the Government is now is charging  four separate counts for each 
loan: Counts 1-3 relate to the electronic submission of the HM Four’s EIDL loan application, and 
two documents submitted in support of that loan; Counts 4-6 relate to the electronic submissions 
of Alfaya Trails’ PPP loan application to Bank 1, and two documents submitted in support of that 
loan; Counts 7-8 relate to the electronic submissions of Alfaya Trails’ PPP loan application to 
Bank 2, and one document submitted in support of that loan and Count 9 relates to the electronic 
submission of HMMD’s PPP loan application. Id. As such, the Government stacked the charges 
for three loan applications into nine separate counts. Id. Additionally, the Government charged 
Mr. Sheppard with five additional counts of Aggravated Identify Theft, which it also deliberately 
did not include in the original Indictment. The Government has always contended that Mr. 
Sheppard forged signatures of other persons for six documents submitted in support of the four 
different loan applications and did not charge Aggravated Identity Theft.1 Id. at 8. The 
Government’s actions are clear and vindictive: it intentionally did not charge eleven counts in the 
original Indictment, which it knew about, and waited over a year until Mr. Sheppard elected to go 
to trial, and less than five weeks before trial, to supersede the Indictment and drastically change 
 
1 As the Court is aware, each count of Aggravated Identity Theft, carries a potential mandatory 
minimum two year sentence.  
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the charges against Mr. Sheppard in a malicious manner. As such, dismissal of the Superseding 
Indictment in its entirety is warranted.  
Finally, the Superseding Indictment alleges that Mr. Sheppard “did knowingly transfer, 
possess, and use, without lawful authority, the means of identification of another person,” “during 
and in relation to” the Wire Fraud Counts 2, 3, 6, 8, and 9. Id. at 8.   Defense counsel brought the   
Supreme Court’s recently issued opinion regarding the elements of Aggravated Identity Theft. The 
Superseding Indictment fails to allege a necessary element of an Aggravated Identity Theft offense 
as described by the Supreme Court in Dubin v. United States, 143 S.Ct. 1557 (2023): that the 
defendant's misuse of another person's means of identification must be at the crux of what makes 
the underlying offense criminal. As such, dismissal is warranted on these counts as well.  
ARGUMENT 
I. 
Legal Standard. 
A Defendant can also move to dismiss an indictment for failure to state an offense or 
because it contains a defect. Fed. R. Crim. P. 12(b)(3)(B). The “Eleventh Circuit has made clear 
that ‘[a]n indictment that tracks the wording of the statute under which an offense is charged will 
meet these constitutional requirements if the language sets forth the essential elements of the crime. 
. . .’” United States v. Roemmele, 04-60206-CR, 2011 WL 4625357, at *5 (S.D. Fla. Aug. 3, 2011), 
report and recommendation adopted, 04-60206-CR, 2011 WL 4625348 (S.D. Fla. Oct. 3, 2011) 
(citing United States v. Harrell, 737 F.2d 971, 975 (11th Cir. 1984)); see also United States v. 
Johnson, 981 F.3d 1171, 1179 (11th Cir. 2020) (“While it is generally enough for an indictment 
to track statutory language, [] simply tracking statutory language does not suffice when the 
resulting indictment fails to ‘fully, directly, and expressly, without any uncertainty or ambiguity, 
set forth all the elements necessary to constitute the offen[s]e intended to be punished.’”) 
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Further, a Defendant can also move to dismiss an indictment pursuant to Rule 
12(b)(3)(A)(iv) for selective or vindictive prosecution. “[A] superseding indictment adding new 
charges that increase the potential penalty would violate due process if the prosecutor obtained the 
new charges out of vindictiveness. . . Vindictiveness in this context means the desire to punish a 
person for exercising his rights.” United States v. Barner, 441 F.3d 1310, 1315 (11th Cir. 2006). 
A Court should “evaluate the ‘realistic likelihood of vindictiveness’ in a particular factual 
situation, including a pre-trial situation, and to determine whether any facts make a presumption 
of vindictiveness proper.” Id. at 1317. The Eleventh Circuit has held that without more, a 
prosecutor does not act in a vindictive manner when it carries out a threat made during plea 
negotiations to reindict the defendant on more serious charges if he does not plead guilty to the 
offense with which he was originally charged. United States v. Watson, 400 Fed. Appx. 442, 445 
(11th Cir. 2010). Yet, the facts presented here are “more” than those outlined by the Eleventh 
Circuit, and do rise to the level of vindictive prosecution to warrant dismissal.  
II. 
The Government Failed to Plead a Necessary Element of Aggravated Identity Theft. 
The Court should dismiss Counts 10-14 for failure to state an offense. The Supreme Court 
recently narrowed and limited the application of the Aggravated Identity Theft statute and outlined 
the necessary elements for that charge in Dubin v. United States, 143 S.Ct. 1557 (2023). Dubin 
was convicted of health care fraud after he overbilled Medicaid for treatment of a patient 
performed by the company he helped manage. Id. at 1563. The submitted claim contained 
falsehoods related to how the services were provided. Id. The government also charged Dubin with 
aggravated identity theft, arguing that Ҥ 1028A(a)(1) was automatically satisfied because 
petitioner’s fraudulent billing included the patient’s Medicaid reimbursement number (‘a means 
of identification’)”. Id.  
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The Supreme Court expressly rejected the Government’s broad reading of § 1028A(a)(1), 
stating that the “Government, by its own admission, wielded § 1028A(a)(1) well beyond ordinary 
understandings of identity theft.” Id. at 1564. Under the Government’ reading “as long as a billing 
or payment method employs another person’s name or other identifying information, that is 
enough.” Id. at 1563. The Supreme Court explained that this unbounded reading of the Aggravated 
Identity Theft statute would essentially convict every lawyer who rounds up her hours and bills 
her client electronically, or a waiter who serves flank steak but charges a filet mignon using an 
electronic payment. Id. at 1563. Such a sweeping reading “cover[s] any time another person’s 
means of identification is employed in a way that facilitates a crime” and “bears little relationship 
to the common understanding of identity theft.” Id. at 1567. “The text and context of the statute 
do not support such a boundless interpretation.” Id. at 1563 (emphasis added). 
The Supreme Court limited its application and held that Ҥ 1028A(a)(1) is violated when 
the defendant's misuse of another person's means of identification is at the crux of what makes the 
underlying offense criminal.” Id. at 1573 (emphasis added). “In other words, the means of 
identification specifically is a key mover in the criminality[,]” “the locus of [the criminal] 
undertaking,” rather than merely “passive,” “passing,” or ancillary employment in a crime. Id. at 
1568.  
In fact, the  Court clarified that “being at the crux of the criminality requires more than 
a causal relationship, such as ‘facilitation’ of the offense or being a but-for cause of its 
‘success.’” Id. at 1573 (emphasis added). As such, the Supreme Court held that Dubin was not 
properly charged with identity theft because the “crux of [] [his] overbilling was inflating the value 
of services actually provided, while the patient’s means of identification was an ancillary part of 
the Medicaid billing process.” Id. at 1563. 
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In the case before this Court, the Government failed to include a necessary element of 
Aggravated Identity Theft as outlined in Dubin: that the alleged identity thefts are the “crux” of 
the underlying crimes (or even necessary for the alleged crimes to be completed).  Although the 
Superseding Indictment tracks the statutory language of § 1028A(a) it completely fails to allege or 
even address the necessary element outlined in Dubin.  
In fact, the Defendant submits the Government intentionally made substantial changes to 
the Superseding Indictment to make it look like the Identity Theft charges are key to those 
corresponding alleged wire frauds. In the original Indictment, each count of wire fraud was related 
to each loan application, while in the Superseding Indictment, the Government separated the wire 
fraud counts to encompass each electronic submission, irrespective of loan application. [D.E. 60 
at 7]. For example, Count 1 relates to the electronic submission of HM Four’s EIDL loan 
application, while Count 2 and 3 are the electronic submissions of an alleged false lease agreement 
and banker letter submitted in support of that loan. Id. It is undisputed that these specific documents 
were NOT required for the submission and therefore, were not at the crux of the alleged crime.  
The Government also charged Mr. Sheppard with aggravated identity theft in relation to Counts 2 
and 3: the electronic submission of the allegedly false lease agreement and banker letter, but not 
Count 1: the electronic submission of the loan application. Id. In pleading this way, the 
Government wants to make it seem like since the alleged use of another’s identity directly relates 
to the wire fraud count of the submission of that document, it must be the crux of that crime (i.e. 
since the alleged identity theft of the banker in the banker letter related to the electronic submission 
of the bank letter, it must be the crux of that wire fraud).  
Yet, in looking at the Superseding Indictment as whole, it is clear that the means of 
identification is not the crux of the criminality nor did the Government plead that it was. The 
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Superseding Indictment alleges that Mr. Sheppard engaged in a scheme to defraud, and to obtain 
money and property by allegedly submitting false and fraudulent loan applications. Id. at 5-6. 
According to the Superseding Indictment, some of the allegedly falsified documents submitted in 
support of the loan applications contained the names and forged signatures of others. Yet, glaringly 
missing from the Superseding Indictment are any allegations that Mr. Sheppard’s misuse of 
another person's means of identification is at the crux of what makes the underlying offense 
criminal, or that the means of identification specifically is a key mover in the criminality.” To the 
contrary, the allegations make clear that the means of identification is ancillary to the crime, and 
not at the crux. 
III. 
The Government engaged in Vindictive Prosecution, Stacking Charges and Adding 
Eleven New Charges Less than Five Weeks before Trial, on Charges it Knew For 
More than a Year when the Original Indictment was Pending.   
 
As explained above, the Government deliberately did not charge eleven counts in the 
original Indictment, which it knew about, and waited until after Mr. Sheppard had elected to go to 
trial, and less than five weeks before trial, to supersede the Indictment and drastically change the 
charges against Mr. Sheppard in a vindictive manner. This is not a classic situation as outlined in 
United States v. Watson, 400 Fed. Appx. 442, 445 (11th Cir. 2010), where the prosecutor merely 
carried out a threat made during plea negotiations to reindict the defendant on more serious charges 
if he did not plead guilty to the offense with which he was originally charged. The case involved 
here involves “more,” as required by Watson.  
Here, the Government knew of Mr. Sheppard’s various loan applications when it filed the 
original Indictment in June of 2022. The Government produced over 10,000 documents in early 
August of 2022, including each loan application file. Yet, it deliberately chose not to prosecute the 
six counts of Wire Fraud that it now claims were related to documents submitted in support of the 
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loan applications (rather than the submission of the application itself), even though it very well 
knew of this information. Additionally, the Government also deliberately chose not to charge Mr. 
Sheppard with the five counts of Aggravated Identity Theft, even though it also knew of these 
documents when it filed the original Indictment. Further, in plea negotiations, the Government 
threatened Mr. Sheppard with filing one additional charge of Aggravated Identity Theft but did 
not advise Mr. Sheppard of four other additional Aggravated Identity Theft charges, or of the 
additional six charges of Wire Fraud they ultimately included in the Superseding Indictment. Only 
after Mr. Sheppard rejected the Government’s offer and elected to go to trial, did the Government 
supersede the Indictment to add six new Wire Fraud charges, stacking the Wire Fraud charges with 
several counts for each loan application, and also added five new Aggravated Identity Theft 
charges. On these facts, it is clear that the Government acted improperly, in a vindictive manner, 
to punish Mr. Sheppard for electing to go to trial, and therefore, the Superseding Indictment should 
be dismissed in its entirety.  
IV. 
The Forfeiture Charge is Defective and Should be Dismissed. 
The forfeiture allegations in the Superseding Indictment are defective and should also be 
dismissed. The Government alleges that the property subject to forfeiture includes: “a sum of at 
least approximately $893,145 in U.S. currency, which represents the total amount of funds 
constituting, or derived from, proceeds traceable to the alleged offenses and fraud scheme . . .” 
[D.E. 60 at 9]. Yet, the charges in the Superseding Indictment allege that the three loans resulted 
in payment of approximately $446,988, not $893,145. Id. at 7. Moreover, the Government’s 
number of forfeiture does not take into consideration the amount of monies paid back to date. 
These fatal errors in the Superseding Indictment warrant dismissal.  
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Additionally, the government now seeks forfeiture on the Defendant’s home which was 
bought and purchased in 1999.  Again, as evidence of vindictiveness, knowing the Defendant’s 
family home is worth approximately 6 million dollars, it seeks forfeiture due to the alleged criminal 
conduct to secure $456,000 loans, which, he has been diligently paying back. The Defendant 
always had an office until he had to shut it down, like many, due to the pandemic. Mr. Sheppard 
temporarily brought his files and office computer equipment to his home.  The fact that due to 
Covid, and closing his office, he brought his files to his home temporarily, does NOT subject to 
the home to forfeiture.   
WHEREFORE, Defendant, Eric Dean Sheppard, respectfully requests that this Court 
dismiss the Superseding Indictment because it is the product of vindictive prosecution, Counts 10-
14 fail to state an offense, and the forfeiture charges are defective.  
MEET AND CONFER CERTIFICATION 
The defense conferred with the Government who opposes relief requested herein.  
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 
 
 
 
 
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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 85   Entered on FLSD Docket 09/15/2023   Page 10 of 10

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