Response in Opposition by Eric Dean Sheppard — USA v. Sheppard (Dkt. 90, S.D. Fla.)

Record facts

U.S. District Court for the Southern District of Florida · No. 1:22-cr-20290-BB · Doc. 90 · 2023-09-18 · Docket on CourtListener

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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 
RESPONSE IN OPPOSITION TO GOVERNMENT MOTION [D.E. 86] 
Defendant, Eric Dean Sheppard, respectfully submits this response in opposition to the 
Government’s motion to disclose expert witness information at [D.E. 86]. 
1. 
The Government seeks an order compelling all opinions of all experts that the 
defense may seek to offer in its defense, should the Defendant elect to put on a defense case. [D.E. 
86], citing United States v. Caldwell, 2023 WL 5274338 (11th Cir. 2023). The Government’s bare-
bones motion posits a simple rule supposedly set out by the Circuit Court: That the Defendant is 
Constitutionally limited to the expert disclosures it provides before trial. In other words, no matter 
what discovery the Government continues to produce or what the Government argues or seeks to 
prove, defense expert opinions on those are off the table. But Caldwell says nothing of the sort. 
2. 
In Caldwell, the defense waited, without justification, until days before trial to first 
disclose that it would seek to offer a supposed expert regarding the “nature and structure of 
criminal gangs,” Caldwell, at *8—a dubious expertise that was obviously due to be challenged on 
Daubert grounds. Worse still, the defense sought to prevent the Government from doing the work 
needed to mount a proper Daubert challenge, otherwise prepare to cross the “expert,” or search 
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for, interview, and prepare a rebuttal expert, by refusing to identify the basis for the proposed 
testimony, referring only to unidentified and undisclosed “field work . . . and statistical analysis” 
and “research, analysis, and teaching on gangs in general.” Id. The Circuit Court took pains to note 
that it was “loathe” to second guess the trial court’s direction in striking the expert, given the 
extreme circumstances present. 
3. 
Here, the “nature and structure of gangs” is a far cry from routine expert testimony 
both sides may seek to offer, and the Government has no basis to complain given both sides 
disclosures: 
a. On July 6, the Government disclosed that it would seek to offer an unidentified 
IRS expert. [D.E. 48]. 
b. On August 28, the defense disclosed that it may seek to offer a financial forensic 
expert and a tax expert. [D.E. 63]. 
c. On August 31, the Government disclosed the name of its IRS expert and 
expected subject matter of his testimony and emailed the defense the expert’s 
CV. [D.E. 65]. 
d. On September 5, the defense disclosed that the name of its financial forensic 
expert (Scott Bouchner of Berkowitz Pollack Brant), disclosed the expected 
subject matter of Mr. Bouchner’s testimony based on its preparation to date, 
and provided Mr. Bouchner’s CV to the Government. [D.E. 67]. 
e. On September 11, the Government amended its expert disclosure and changed 
some of the subject matters of its IRS expert’s testimony. [D.E. 74]. 
f. In subsequent email correspondence, the defense disclosed that its second 
expert disclosure amended the first disclosure, that it did not yet have a tax 
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expert, and that it did not know if it is going to retain or seek to offer a tax 
expert. This remains the case today. 
4. 
First, with respect to the Defendant’s financial forensic expert, the Government has 
no possible cause to complain. Many months ago, defense counsel informed the Government in 
meetings at the US Attorney’s Office and on telephone conferences that Defendant was going to 
show that the proceeds from the loans at issue were applied properly for workers and other business 
expenses. During these discussions between the parties on the use of the loan proceeds, the 
Government argued that personal expenses were being paid at the same time as the loans were 
received. Defense counsel responded that money is fungible, and Defendant was funding his 
business accounts with millions of dollars—far more than was needed to cover any personal 
expenses. As such, the Government has been on notice for months (at least since early summer) 
that Defendant was likely to call an expert exactly like Mr. Bouchner to testify on these matters.   
5. 
Further distinguishing this case from Caldwell, the Government has admitted in 
meet and confers that it has a financial expert on hand and assisting. This is not the kind of expert 
testimony, as in Caldwell, where the Government is going to be left days before trial without a 
retained expert on an exotic expert issue. That is likely why the Government has not argued 
prejudice in its motion. The Defendant has made a proper disclosure and will update the disclosure 
on a timely basis based on its continuing investigation and based on the Government’s case. The 
expert requires analysis of additional information, including the documents that Government has 
been producing in the last several weeks and on Friday night.   
6. 
Second, with respect to a tax expert, which the Defendant cannot disclose because 
he does not currently have a tax expert, there is no possible prejudice to the Defendant calling a 
tax expert in its case depending on the Government’s case, considering that the Government is 
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planning to call the Defendant’s CPA and its own tax expert. Likely, cross examination will be 
sufficient. But under no circumstances should the Government get an advance ruling barring the 
defense from offering expert testimony that become necessary in response to the Government’s 
case. 
7. 
For both potential expert witnesses, they are rebuttal expert witnesses. A defense 
tax expert would rebut either the Government’s tax expert or testimony on matters Defendant’s 
former CPA may cover. The forensic financial expert is also a rebuttal expert in that he is rebutting 
the Government’s simplistic assertion that just because personal expenses (as well as legitimate 
business expenses) were paid from an account in which loan funds were deposited, then Defendant 
failed to use the money for the intended business purposes. And, as noted, the Government has 
been working with its own financial expert to assist as needed. 
8. 
Again, unlike Caldwell, this is not a situation where the Defendant waited until the 
last minute to reveal game-changing, dubious expert witness testimony to upend the Government’s 
case (and prevented the Government from responding through late and incomplete disclosures). 
9. 
For the reasons detailed in Defendant’s amended motion to continue trial, filed 
simultaneously with this response, Defendant is still actively preparing for trial, including making 
determinations regarding testifying experts and what opinions are necessary to defend against the 
Government’s charges. In an abundance of caution, Defendant made disclosures that were 
appropriate and will continue to update them. 
 
 
 
 
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CONCLUSION 
 
WHEREFORE, Defendant Eric Dean Sheppard respectfully requests that this Court deny 
the Government’s motion to set an expert disclosure schedule. 
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 
 
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 90   Entered on FLSD Docket 09/18/2023   Page 5 of 5

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