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Unopposed MOTION to Continue Trial by Eric Dean Sheppard. Responses due by 10/2/2023 — USA v. SHEPPARD (Dkt. 89)

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Court	U.S. District Court for the Southern District of Florida
Filed	2023-09-18

U.S. District Court for the Southern District of Florida · No. 1:22-cr-20290-BB · Doc. 89 · 2023-09-18 · Docket on CourtListener

Summary

Defendant Eric Dean Sheppard's unopposed amended motion for continuance in USA v. Sheppard, No. 1:22-cr-20290-BB, in the U.S. District Court for the Southern District of Florida, dated September 18, 2023 and entered as Document 89. It asks the Court to move trial from September 26 to Monday, October 2, 2023, modifying an earlier request for a one-day continuance. The motion lists government discovery productions and filings before trial, including an August 23 superseding indictment adding six wire fraud counts and five aggravated identity theft counts, and a September 14 Rule 404(b) disclosure. It argues that these disclosures and a Friday night production on September 15 require additional preparation time. The meet-and-confer certificate states that the government does not oppose the continuance; the six-page motion is signed by Jayne C. Weintraub of Nelson Mullins.

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FORIDA
CASE No. 22-20290-CR-BLOOM/OTAZO-REYES

UNITED STATES OF AMERICA,

Plaintiff,
v.
ERIC DEAN SHEPPARD,

Defendant.
____________________________________/
DEFENDANT ERIC DEAN SHEPPARD’S
UNOPPOSED AMENDED MOTION FOR CONTINUANCE
Defendant, Eric Dean Sheppard, respectfully submits this amended motion1 for a
continuance of trial to Monday, October 2, 2023, for the good cause explained below.
1.
On July 20, 2023, the Government moved to continue trial, then scheduled to begin
September 11, 2023. [D.E. 49]. As noted in the Government’s motion to continue, Defendant
strongly objected to a long continuance, in view of his request for a speedy trial given the schedules
of defense counsel. [Id. at ¶ 5]. The Court granted a short continuance through the current trial date
of September 26. [D.E. 50].
2.
The Government cited the unavailability of a witness in support of its motion to
continue. [D.E. 49 at ¶¶ 2-3]. Defendant believed then, and still believes today, that the primary
reason the Government needed more time was because it failed to properly investigate this matter

1 This amended motion modifies the previous request made in Defendant’s unopposed motion for
one-day continuance, filed on September 15 at [D.E. 82]. As discussed in this amended motion,
additional time is necessitated by the additional disclosure made by the Government on the night
of September 15, as well as the Government’s attempt to prevent the defense’s expert witness from
reviewing evidence and to continue to develop opinions before trial.
Case 1:22-cr-20290-BB Document 89 Entered on FLSD Docket 09/18/2023 Page 1 of 6

pre-indictment and the continuance would allow it time to do the investigative work that should
have been done long ago.
3.
After Defendant made it clear he would not accept a plea deal and he was preparing
for trial, the Government ramped up its investigation and began producing substantial new
discovery. This post-hoc investigation leading up to trial prejudices Defendant, who seeks only
what the Constitution guarantees: a speedy and fair trial.
4.
After Defendant rejected a plea offer and met with the Government to discuss some
of his defenses:
 On July 6, then approximately 2 months before trial, the Government produced, among
other things, numerous 302s of witnesses who worked for and were paid by the
Defendant after he received loans, and who had recently been interviewed for the very
first time;
 On July 12, the Government produced additional discovery;
 On July 20, the Government moved to continue the trial, as mentioned above;
 On August 23, a month before trial, and based on the exact same facts, the Government
superseded the indictment, drastically changing the charges against Defendant by
adding six additional Wire Fraud counts and five additional counts of Aggravated
Identify Theft, none of which were included in the original Indictment;
 On September 1, approximately 3-and-a-half weeks before trial, the Government
produced additional discovery, including documents from the alleged victim banks, the
IRS, and tenants from Defendant’s shopping center in Orlando;
 On September 7, another AUSA who is apparently going to be the lead litigator entered
a Notice of Appearance;
Case 1:22-cr-20290-BB Document 89 Entered on FLSD Docket 09/18/2023 Page 2 of 6

 On September 8, approximately 2-and-a-half weeks before trial, the Government
produced over 800 pages of documents, including emails and other records from
Defendant’s accountant, a Government witness (who was interviewed over six months
ago);
 On September 12, two weeks before trial, the Government produced nearly 1,000 pages
containing including additional financial information (such as tax and bank documents)
and documents from two new potential Government witnesses never disclosed to
Defendant (including potential 404(b) evidence); and
 On September 13, the Government sent Defendant two “disclosures” in the form of an
email2 about statements from two potential Government witnesses, including a 404(b)
witness.
5.
On September 14, the Government filed its 404(b) disclosure on an entirely
unrelated matter that is several years old and requires serious investigation. In effect, the
Government seeks yet another new charge just before trial, to the extreme prejudice of the
Defendant. The defense recognizes that there is no hard and fast rule for the timing of Rule 404(b)
evidence, but generally Rule 404(b) disclosures relate to matters that have previously been
disclosed, such as crimes appearing on rap sheets produced upon indictment, for which the defense
has had plenty of time to investigate. The Government’s excuse—that it only recently learned of
this matter from a witness—falls short. The Government has known the identity of this witness
since before the original Indictment. His name appears in the initial discovery. Why did they wait
so long to interview this witness?

2 Interestingly, not in the form of a 302 which can be used for impeachment, but as an email
from the AUSA advising of the information, which cannot be cross examined.
Case 1:22-cr-20290-BB Document 89 Entered on FLSD Docket 09/18/2023 Page 3 of 6

6.
As Defendant has tried to work on final trial preparation, including with respect to
experts and finalizing Motions for filing, it is has had to play catch up on reviewing and analyzing
late disclosed discovery and investigating the Rule 404(b) disclosure.
7.
On Friday, September 15, the defense and the Government were on the phone for
an hour on various “meet and confer issues,” followed by several rounds of emails between the
parties. During the meet and confer, there was no mention by the Government of attempting to
limit or exclude the defense witnesses. After being advised the defense team was leaving early to
observe the Jewish Holiday of Rosh Hashanah, on Friday night, at 6:00 pm, the Government
produced additional documents, including emails between Defendant and yet another potential
witness, while simultaneously seeking an immediate deadline for disclosure of all possible defense
experts and all their opinions that the defense may seek to offer in its case, including related to the
very material it produced that day.
8.
This, and the rest of the Government’s actions, including over the last month, are
the consequence of its failure to properly investigate this matter before charging Defendant, and
then waiting until it knew trial was imminent to start investigating in earnest, in addition, adding
another prosecutor who probably needed time to catch up.
9.
In acting this way, the Government has coerced Defendant into seeking a
continuance, for the Defendant to prepare for trial and for his counsel to fulfill their Constitutional
and ethical duties.
10.
Defendant is left with no choice. Defendant is steadfast in his desire for a speedy
trial but given the circumstances (details can be provided upon the Court’s request) is compelled
to seek a short continuance of only a few days.
Case 1:22-cr-20290-BB Document 89 Entered on FLSD Docket 09/18/2023 Page 4 of 6

11.
This short continuance is not sought for purposes of delay and does not prejudice
the Government in any way. In fact, the continuance, although necessary, prejudices Defendant.
The continuance is required because of the Government’s superseding indictment one month
before trial and its late investigation and disclosure of critical discovery. The necessary
continuance will now give the Government more time to continue its own trial preparation with
the new information it has belatedly investigated.
CONCLUSION

WHEREFORE, Defendant Eric Dean Sheppard respectfully requests that this Court
continue the trial of this matter to Monday, October 2, 2023.
MEET AND CONFER CERTIFICATE
Undersigned counsel has conferred with the Government, who states that that it does not
oppose the continuance sought herein.
Dated: September 18, 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

Case 1:22-cr-20290-BB Document 89 Entered on FLSD Docket 09/18/2023 Page 5 of 6

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on September 18, 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 89 Entered on FLSD Docket 09/18/2023 Page 6 of 6

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Unopposed MOTION to Continue Trial by Eric Dean Sheppard. Responses due by 10/2/2023 — USA v. SHEPPARD (Dkt. 89)

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