Court filing
Motion to set a pretrial deadline for defense expert disclosure — USA v. Sheppard (Dkt. 86, S.D. Fla.)
Filed September 15, 2023 in USA v. Sheppard; one of 253 filings from this case.
Record facts
| Court | U.S. District Court for the Southern District of Florida |
|---|---|
| Filed | 2023-09-15 |
U.S. District Court for the Southern District of Florida · No. 1:22-cr-20290-BB · Doc. 86 · 2023-09-15 · 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’ MOTION FOR PRETRIAL DEADLINE
FOR DEFENSE EXPERT DISCLOSURE
OR ALTERNATIVELY TO EXCLUDE DEFENSE EXPERT
The undersigned Assistant U.S. Attorney respectfully files this motion for a pretrial
deadline for the defense to provide its complete expert witness disclosure, or in the alternative, to
exclude the proposed defense expert. In support, the United States provides the following.
Background
This case involves a scheme to defraud devised and executed by defendant Eric
Sheppard. The defendant is a wealthy real estate developer and owner of commercial properties
such as shopping malls with large national-chain stores. During the pandemic, the defendant
obtained approximately $900,000 in loans, based on multiple applications under multiple
corporate names. He applied for these loans under the Paycheck Protection Program and the
Economic Injury Disaster Loan Program. The defendant based his applications on false
information and false documents, such as falsified and forged tax returns, a forged banker’s
letter, and a falsified and forged lease.
Case 1:22-cr-20290-BB Document 86 Entered on FLSD Docket 09/15/2023 Page 1 of 4
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Trial in this case is set for September 26, 2023. The defense filed a notice to utilize
expert testimony (DE 67), and provided the CV for Scott Boucher. As to the anticipated expert
testimony, the notice provides a single sentence, and it is not signed by the witness. It states:
“Mr. Boucher is expected to testify about the cash flows of certain of Defendant’s companies,
including source of funding and use of funds.”
The parties have conferred. The United States asked by when the defense would
complete the expert disclosure. Defense counsel was unable to provide a timeframe.
Today, September 15, 2023, the defense filed a motion with the Court seeking to bring in
electronic equipment for the defense team. The proposed defense expert, Mr. Boucher, was
included as part of the defense team.
Argument
The United States respectfully requests that the Court set a deadline for the defense to
complete its expert disclosure in advance of trial, in accordance with Fed. R. Crim. P. 16 and
Local Rule 88.10. Alternatively, the United States requests that the proposed expert be excluded.
Both Rule 16 and local rule 88.10 were amended in 2022 to require more fulsome and
timely expert disclosures in criminal cases. Expert discovery is recognized as important because
specialized knowledge or opinions are used to assist the jury. The Court also plays a role as a
gatekeeper of appropriate expert testimony. More advance preparation is needed to prepare to
meet expert testimony. The defendant in this case is represented by multiple experienced
counsel, who have advised the United States that they are aware of their obligations. The
United States understands trial preparation is challenging for all involved, and only seeks a
timeframe sufficiently in advance of trial to allow the United States to prepare for, or challenge,
the proposed testimony. That window is closing fast.
Case 1:22-cr-20290-BB Document 86 Entered on FLSD Docket 09/15/2023 Page 2 of 4
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In United States v. Caldwell, __ F.4th __ (11th Cir. 2023), 2023WL5274338, the Eleventh
Circuit affirmed the district court’s exclusion of a defense expert because the notice was
untimely and vague. Id. at 8. In that case, the defense expert disclosure had been provided six
business days before trial. The Court noted the commonsense 2022 amendment of Rule 16,
which requires expert disclosures sufficiently before trial for adequate preparation. The Eleventh
Circuit found that the district court “reasonably concluded that it was unfair to ask the
government to formulate its response after the trial had started.” Id.
In this case, the defendant’s single and vague sentence is far from sufficient to meet the
requirements of the federal or local rules to provide expert disclosures. Now, the trial is set to
start on Tuesday September 26. Even a disclosure now would hardly be sufficient to prepare
before trial as to any proposed defense expert testimony.
Conclusion
For the reasons stated above, the United States respectfully requests that this Court set a
deadline of no later than noon September 19, 2023, for the defense to comply with Fed. R. Crim.
P. 16 and Local Rule 88.10, and provide a complete expert disclosure. In the alternative, the
United States respectfully requests that any defense expert be excluded.
Respectfully submitted,
MARKENZY LAPOINTE
UNITED STATES ATTORNEY
By: s/ Ana Maria Martinez
ANA MARIA MARTINEZ
ASSISTANT U.S. ATTORNEY
Florida Bar No.0735167
99 N.E. 4th Street
Miami, FL 33132
Phone: (305) 961-9431
Fax: (305) 536-5321
Email: Ana.Maria.Martinez@usdoj.gov
Case 1:22-cr-20290-BB Document 86 Entered on FLSD Docket 09/15/2023 Page 3 of 4
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on September 15, 2023, I electronically filed the foregoing
document with the Clerk of the Court using CM/ECF. I also certify that the foregoing document
is being served this day on all counsel of record via Notices of Electronic Filing generated by
CM/ECF.
s/Ana Maria Martinez
Ana Maria Martinez
Assistant United States Attorney
Case 1:22-cr-20290-BB Document 86 Entered on FLSD Docket 09/15/2023 Page 4 of 4File and source
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