Response in Opposition by USA as to Eric Dean Sheppard — USA v. Sheppard (Dkt. 91, S.D. Fla.)

Record facts

U.S. District Court for the Southern District of Florida · No. 1:22-cr-20290-BB · Doc. 91 · 2023-09-18 · 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’ RESPONSE IN OPPPOSITION TO 
DEFENDANT’S MOTION(S) IN LIMINE 
 
 
The United States of America, through the undersigned Assistant United States Attorney, 
files this response in opposition to the defendant’s motions in limine seeking to exclude evidence 
that is relevant and admissible under the Federal Rules of Evidence.  The defendant asks the Court 
to exclude evidence relating to six subjects, listed as motions in limine nos. 1 through 6.  As for 
the defendant’s motion in limine no. 6, it relates to the government’s notice of intent to use Rule 
404(b) evidence, for which the defendant seeks additional time to respond.  With respect to the 
defendant’s motions in limine nos. 1 through 5, the defendant simply asks the Court to exclude 
certain subjects without specifying what the expected evidence may be.  These motions are 
meritless.  They are simply an effort by the defense to require the government to lay out its case 
in order to respond to the defendant’s objections to categories of potential evidence in a fulsome 
way.   
Legal Standard 
 
“In fairness to the parties and their ability to put on their case, a court should exclude 
evidence in limine only when it is clearly inadmissible on all potential grounds.”  United States v. 
Case 1:22-cr-20290-BB   Document 91   Entered on FLSD Docket 09/18/2023   Page 1 of 6

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Gonzalez, 718 F. Supp. 2d 1341, 1345 (S.D. Fla. 2010) (citing In re Seroquels Prods. Liab. Litig., 
2009 WL 260989, at *1 (M.D. Fla. Feb. 4, 2009)).  “The movant has the burden of demonstrating 
that the evidence is inadmissible on any relevant ground.”  Id.  “’Unless evidence meets this high 
standard, evidentiary rulings should be deferred until trial so that questions of foundation, 
relevancy, and potential prejudice may be resolved in proper context.’”  Id. (quoting In re 
Seroquels Prods. Liab. Litig., 2009 WL 260989, at *1). In this case, the direct evidence of the 
defendant’s scheme to defraud includes the evidence, or subjects, that the defense is incorrectly 
labelling as collateral.  The defendant’s motions in limine should be denied. 
Response to Motion in Limine No. 1:   
 
The defendant asks the Court to exclude evidence relating to collateral business disputes.  
The defendant does not indicate what these collateral business disputes are.  In a footnote, the 
defendant indicates that the government has produced evidence from a civil litigation involving 
the defendant’s former business partner, Leon Wildstein.  In an abundance of caution, the 
government turned over to the defense transcripts of the defendant’s deposition in that case, as 
well as transcripts of other individuals who were deposed in that case.  
The government will seek to introduce evidence that is intrinsic to the crimes charged, 
evidence that is admissible as inextricably intertwined evidence, and evidence that is properly 
allowed under Federal Rule of Evidence 404(b).  This motion should be denied. 
Response to Motion in Limine No. 2: 
 
 The defendant seeks to exclude evidence relating to “personal relationships, children and 
family life.”  The defendant does not specify what this evidence may be.  The defendant submitted 
in several of his Paycheck Protection Program (“PPP”) loan applications the names of many 
individuals whom the defendant claimed were his W-2 employees.  The government expect to call 
Case 1:22-cr-20290-BB   Document 91   Entered on FLSD Docket 09/18/2023   Page 2 of 6

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as witnesses current and former workers and independent contractors who performed jobs for the 
defendant, some of whom the defendant has known for many years.  Are these witnesses’ personal 
relationships with the defendant covered by this motion, or is the defendant seeking to exclude a 
specific type of personal relationship, i.e., extramarital affairs?  The government does not intend 
to elicit testimony from its witnesses about the latter, even if, for instance, one former worker’s 
duties included assisting individuals involved in such affairs at the defendant’s direction.  Should 
the defendant attempt to put forth falsehoods about any personal relationships, this may open the 
door to permissible cross-examination of a defense witness, or permissible redirect of the 
government’s witnesses.   
 
Regarding the category of children and family life, the defendant does not indicate what 
evidence should be excluded.  The government, for instance, has evidence showing that proceeds 
from the fraud were used to pay for college tuition of the defendant’s child.  This is relevant, 
admissible evidence.  This motion should be denied. 
Response to Motion in Limine No. 3: 
 
The defendant seeks to exclude evidence relating to his tax violations.  The evidence 
relating to the defendant’s tax-related conduct is intrinsic to the wire fraud crimes charged in this 
case.  The basic requirement of the Paycheck Protection Program was that businesses would be 
eligible for a loan based on 2.5 times their average monthly payroll, calculated using the wages 
paid to W-2 employees.  As a result, the defendant was required to submit income, unemployment 
and quarterly tax returns, including IRS 1065 returns, IRS Form 941s and IRS Form 940s, to 
substantiate his W-2 payroll.  The defendant submitted the requested tax returns as part of this 
scheme in order to be approved for the PPP loans, except that, as part of carrying out his scheme 
to defraud, all of the tax returns the defendant submitted were falsified.  The evidence is expected 
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to show that by the year 2019, the defendant had converted any remaining W-2 employees to 
independent contractors, and he did not have a single W-2 employee on his “payroll” when he 
applied for the PPP loans.   
 In addition, one of the defendant’s PPP loan applications included a typed document listing 
payments to the purported employees, and a column for “withholdings” listing “withholding” 
amounts for a period of time when the defendant only paid independent contractors and had made 
no “withholdings” from anyone on that list (because none were wage employees).  The government 
expects to present testimony explaining to the jury an employer’s “withholding” obligations for 
W-2 employees, and the employer’s obligations to pay Social Security, Medicare and 
unemployment taxes for each employee.  Similarly, the government expects to present testimony 
regarding the absence of any such withholdings or tax contributions for a business that makes 
payments to 1099 independent contractors.  To the extent the defendant had any workers who 
should have been designated as wage employees during the years at issue – 2019 and 2020 – he 
did not file any IRS Form 941s or 940 with the IRS or pay the required Social Security, Medicare 
or unemployment taxes on their behalf. 
 
All of the tax-related evidence is intrinsic, not extrinsic, to the defendant’s scheme to 
defraud.  This motion should be denied. 
Response to Motion in Limine No. 4:   
 
The defendant seeks to exclude evidence regarding “his personal wealth and lifestyle.”  
Once again, the defendant does not specify what evidence he is seeking to exclude, except that he 
makes a reference to photos of the defendant’s house and his personal tax returns.  The defendant 
accuses the government of wanting to display the defendant’s wealth in order to appeal to class 
bias and improperly inflame the jury.  This is another effort by the defendant to prevent the 
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government from presenting relevant evidence in its case.  The Internet Protocol (IP) addresses 
captured by the lenders or the loan processors in connection with the submission of the fraudulent 
PPP loan applications on behalf of the defendant’s businesses were IP addresses registered to the 
defendant’s home internet account.  The two or three photographs taken of the exterior of the 
defendant’s home address depict the scene of the crimes charged in the superseding indictment.   
 
As for the tax returns, the defendant’s businesses are partnerships which report income to 
the IRS on Form 1065.  Any income or loss reported on the IRS Form 1065 flows to the owner(s) 
of the partnership and are reported on the partner’s individual tax return, IRS Form 1040.  In 
carrying out the defendant’s scheme to defraud, the defendant submitted IRS Form 1065 
partnership returns in connection with several of the loans for which he applied.   The defendant’s 
personal tax returns are relevant and intrinsic to the crimes charged in this case, and they help 
complete the story.   
Finally, to the extent that fraud proceeds deposited into the defendant’s business accounts 
were used for personal expenses, this is relevant evidence that the government intends to present 
to the jury.  This motion should be denied. 
Response to Motion in Limine No. 5: 
 
The defendant wants to exclude evidence that the defendant’s workers are owed money by 
the defendant.  The defendant listed a number of individuals as his wage employees to apply for 
PPP loans, and yet, when the defendant received the PPP funds, he did not pay the debts he owed 
them (as independent contractors).   This is evidence intrinsic to the crimes charged and necessary 
to complete the story.  Furthermore, the government expects to present testimony on this point 
because it goes to the issue of the witness’s bias.  It is appropriate to present testimony about a 
witness’s own possible bias during direct examination.  This motion should be denied. 
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Response to Motion in Limine No. 6: 
 
The government advised the defense that it does not object to their request for additional 
time to respond to the government’s notice of intent to use Rule 404(b) evidence.    
Conclusion 
 
For the reasons set forth above, the government respectfully requests that the defendant’s 
motions in limine be denied.  Should the Court require additional information in order to rule on 
the defendant’s motions in limine before the start of the trial, the government respectfully requests 
leave to file a supplement to this response.     
 
 
 
 
 
Respectfully submitted, 
                                                 
 
MARKENZY LAPOINTE 
                                                 
 
UNITED STATES ATTORNEY 
 
                                          
 
By:    s/Aimee C. Jimenez            
                                                 
 
Aimee C. Jimenez 
                                                 
 
Assistant United States Attorney 
                                                 
 
Court No. A5500795 
                                                 
 
99 N.E. 4th Street 
                                                 
 
Miami, Florida 33132-2111 
                                                 
 
Tel: (305) 961-9028 
                                                 
 
Fax: (305) 530-7976 
                                                 
 
Email: aimee.jimenez@usdoj.gov 
 
 
 
CERTIFICATE OF SERVICE 
 
I HEREBY CERTIFY that on September 18, 2023, I electronically filed the foregoing  
 
document with the Clerk of the Court using CM/ECF.  
 
s/Aimee Jimenez                           
Aimee C. Jimenez 
Assistant United States Attorney 
 
 
 
Case 1:22-cr-20290-BB   Document 91   Entered on FLSD Docket 09/18/2023   Page 6 of 6

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