Order on Defendants Motion in Limine granting in part — USA v. Sheppard (Dkt. 111, S.D. Fla.)

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U.S. District Court for the Southern District of Florida · No. 1:22-cr-20290-BB · Doc. 111 · 2023-09-27 · Docket on CourtListener

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UNITED STATES DISTRICT COURT 
SOUTHERN DISTRICT OF FLORIDA 
 
Case No. 22-cr-20290-BLOOM 
 
UNITED STATES OF AMERICA, 
 
 
Plaintiff, 
 
v. 
 
ERIC DEAN SHEPPARD, 
 
 
Defendant(s). 
_____________________________/ 
 
ORDER ON DEFENDANT’S MOTION IN LIMINE 
 
THIS CAUSE is before the Court on Defendant Eric Dean Sheppard’s (“Defendant”) 
Motion in Limine, ECF No. [84] (“Motion”), to which the Government filed a Response, ECF No. 
[91]. The Court has reviewed the Motion, the Response, the record in this case, the applicable law, 
and is otherwise duly advised. For the reasons that follow, the Motion is granted in part and denied 
in part. 
I. 
BACKGROUND 
On August 23, 2024, the Government filed a Superseding Indictment charging Defendant 
with nine Counts of Wire Fraud, in violation of 18 U.S.C. § 1343  and five Counts of Aggravated 
Identity Theft, in violation of18 U.S.C. § 1028A. ECF No. [60]. The Government alleges that 
Defendant submitted false and fraudulent Paycheck Protection Program (PPP) and Economic 
Injury Disaster Loan (EIDL) Program loan applications on behalf of three companies and that 
Defendant forged signatures of other persons for certain documents submitted in support of the 
loan applications. ECF No. [84] at 1; see also ECF No. [60] at 1-3 (describing the PPP and EIDL 
programs). Defendant seeks to exclude evidence relating to six subjects, listed as Motions in 
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Limine numbers one (1) through six (6). Defendant asserts  the following reasons: First, evidence 
of “other collateral business disputes or allegations made by [Defendant’s] business associates” 
should be excluded under Rule 404(b) of the Federal Rules of Evidence as “classic propensity 
evidence,” under Rule 402 of the Federal Rules of Evidence because such disputes and allegations 
are irrelevant, and under 403 of the Federal Rules of Evidence because such disputes and 
allegations would cause unfair prejudice, confuse the issues, waste time, or mislead the jury. ECF 
No. [84] at 3-4 (citing Wildstein Investments, Inc. v. Sheppard Flagler Holdings, LLC., No. 18-
10456-CA-01 (Fla. Miami-Dade County Ct. filed Apr. 2, 2018)). Second, evidence related to 
Defendant’s “personal relationships, children and family life” should be excluded under Rule 402 
because it is irrelevant to whether Defendant committed Wire Fraud or Aggravated Identity Theft 
and under Rule 403 because it is unfairly prejudicial since that evidence is inflammatory. Id. at 4. 
Third, Defendant seeks to exclude the testimony of Defendant’s personal accountant and the 
Government’s expert witness. In Defendant’s view, to the extent that testimony relates to 
Defendant’s uncharged alleged tax violations, that testimony is inadmissible under Rule 404(b), 
under Rule 402 because such testimony is irrelevant, and under Rule 403 as either unfairly 
prejudicial to Defendant or confusing or misleading to the jury. Id. at 5. Fourth, Defendant seeks 
to exclude evidence of his personal wealth and lifestyle under Rule 402 because such evidence is 
irrelevant and under Rule 403 because the evidence would unfairly prejudice Defendant since such 
evidence may appeal to the jury’s “class bias.” Id. at 6. Fifth, Defendant seeks to exclude evidence 
regarding his “prior disgruntled employees or worker[s’] criticisms about nonpayment” as 
irrelevant and unfairly prejudicial under Rule 403 as it may cast him in a negative light and as 
improper under Rule 404(b). Id. at 6. Finally, Defendant seeks additional time within which to file 
an appropriate response in opposition to the Government’s 404(b) notice of intent to use 
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documents related to a potential employee’s visa application and alleged forgery. Id. at 6-7. The 
Government opposes the Motion. The Government opposes Motions in Limine Nos. 1 through 5 
and has no objection to additional time to respond to the Government’s notice of intent to use rule 
404 (b) evidence. 
II. 
LEGAL STANDARD 
A motion in limine is typically one to “exclude anticipated prejudicial evidence before the 
evidence is actually offered.” United States v. Stephenson, 550 F. Supp. 3d 1246, 1250 (M.D. Fla. 
2021) (quoting United States v. Fernetus, 838 F. App’x 426, 432 (11th Cir. 2020) (quoting Luce 
v. United States, 469 U.S. 38, 40 n.2 (1984))). In addition, motions in limine may enable the Court 
to rule on the relevance of evidence and other issues before trial, thereby aiding the trial process. 
See United States v. Laurent, 603 F. Supp. 3d 1247, 1251 (S.D. Fla. 2022). However, “the better 
practice [is] to wait until trial to rule on objections when admissibility substantially depends upon 
what facts may be developed there.” Id. (quoting Mowbray v. Carnival Corp., No. 08-20937-CIV, 
2009 WL 10667070, at *2 (S.D. Fla. April 13, 2009)). Thus, the Court may exclude evidence in 
limine only when “evidence is clearly inadmissible on all potential grounds.” Id. (citation omitted). 
Otherwise, “evidentiary rulings must be deferred until trial to allow questions of foundation, 
relevancy, and prejudice to be resolved in context.” Id. (quoting Mowbray, 2009 WL 10667070, 
at *6). 
The burden is on the movant to demonstrate that evidence is inadmissible on any relevant 
ground. United States v. Gonzalez, 718 F. Supp. 2d 1341, 1345 (citing In re Seroquel Prods. Liab. 
Litig., 2009 WL 260989, at *1 (M.D. Fla. Feb. 4, 2009)). A district court’s ruling on a motion in 
limine is subject to change, in any event. United States v. Dorvilus, 357 F. App’x 239, 246 (11th 
Cir. 2009) (citing Luce, 469 U.S. at 41-42 (“[E]ven if nothing unexpected happens at trial, the 
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district judge is free, in the exercise of sound judicial discretion, to alter a previous in limine 
ruling.”)). 
III. 
DISCUSSION 
Under the Federal Rules of Evidence, “[e]vidence is relevant if: (a) it has any tendency to 
make a fact more or less probable than it would be without the evidence; and (b) the fact is of 
consequence in determining the action.” Fed. R. Evid. 401. In pertinent part, relevant evidence is 
admissible unless the Federal Rules of Evidence provide otherwise, and irrelevant evidence is not 
admissible. Fed. R. Evid. 402. Pertinent here, under Rule 403, “[t]he court may exclude relevant 
evidence if its probative value is substantially outweighed by a danger of one or more of the 
following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, 
or needlessly presenting cumulative evidence.” Fed. R. Evid. 403. And under Rule 404(b), 
“[e]vidence of any other crime, wrong, or act is not admissible to prove a person’s character in 
order to show that on a particular occasion the person acted in accordance with the character.” Fed. 
R. Evid. 404(b)(1). However, evidence of a crime, wrong, or act “may be admissible for another 
purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, 
absence of mistake, or lack of accident.” Fed. R. Evid. 404(b)(2).  
A. Motion in Limine No. 1 
Defendant seeks to exclude evidence of business disputes or allegations made by 
Defendants’ business associates because Defendant is concerned the Government will attempt to 
suggest to the jury that Defendant has lied to and cheated banks and the Small Business 
Administration via the PPP and EIDL Program because Defendant has allegedly lied to and 
cheated those business associates. ECF No. [84] at 3-4. Defendant maintains the evidence would 
invite the jury to consider extraneous facts and matters, “would be highly prejudicial” to 
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Defendant, and “would confuse the issues, and would mislead the jury.” Id. at 4. Moreover, “[t]his 
evidence will certainly result in mini side trials about other disputes” and waste time. Id.  
The Government responds that Defendant does not indicate what collateral business 
disputes he is referring to, except as to the Wildstein Investments matter. As to that case, the 
Government points out that it turned over the defense transcripts of the Defendant’s deposition 
and the deposition of others in that case in an abundance of caution. ECF No. [91] at 2. The 
Government asserts that it intends to introduce evidence that is intrinsic to the crimes charged, 
evidence that is admissible as inextricably intertwined with the charges, and evidence properly 
allowed under Rule 404(b).1 Id. 
It is Defendant’s burden to show that evidence is inadmissible on any relevant ground. 
Gonzalez, 718 F. Supp. 2d at 1345. Defendant fails to meet this burden because he does not identify 
any particular evidence that is excludable under Rules 402, 403, or 404(b). To the extent Defendant 
seeks to exclude deposition testimony from the Wildstein Investments matter, that evidence is not 
before the Court; it therefore cannot make any evidentiary determination at this juncture. To the 
extent the Government seeks to introduce as intrinsic evidence or otherwise any business disputes 
or allegations made by business associates at trial, the Government will bear the burden of showing 
the propriety of the introduction of such evidence, and Defendant may reraise its objections at that 
point.  
 
1 Generally, “[r]elevant direct evidence of a crime charged is always admissible unless it falls under a rule 
of exclusion.” United States v. Troya, 733 F.3d 1125, 1131 (11th Cir. 2013) (citation omitted). Apart from 
direct evidence, the Eleventh Circuit deems intrinsic evidence admissible if it is “inextricably intertwined 
with the evidence regarding the charged offense.” Troya, 733 F.3d at 1131. Evidence is inextricably 
intertwined if it pertains to “the chain of events explaining the context, motive and set-up of [a] crime” 
and is properly admitted if “[1] linked in time and circumstances with the charged crime, . . . [2] forms an 
integral and natural part of an account of the crime, or [3] is necessary to complete the story of the crime 
for the jury.” See United States v. Williford, 764 F.2d 1493, 1499 (11th Cir. 1985) (citation omitted). 
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B. Motion in Limine No. 2 
Defendant seeks to exclude evidence of his personal relationships, children, and family as 
irrelevant and potentially inflammatory. ECF No. [84] at 4. The Government responds that it 
expects to call as witnesses current and former workers and independent contractors who 
performed jobs for Defendant who have information on PPP loans that included the names of 
“many individuals whom [D]efendant claimed werer his W-2 employees.” ECF No. [91] at 2-3. 
To the extent those individuals have or had a “personal” relationship with Defendant, the 
Government states that it does not seek to elicit testimony about Defendant’s personal life. Id.2 
The Government would seek to introduce evidence about Defendant’s family if, for example, 
proceeds from the charged conduct were used to pay for one of Defendant’s child’s college tuition. 
Id. at 3.  
As with Motion in Limine No. 1, Defendant has failed to put forth any specific evidence 
he seeks to exclude. He therefore fails to carry his burden to exclude any evidence that may relate 
to his personal or familial relationships.  
C. Motion in Limine No. 3 
Defendant seeks to exclude evidence pertaining to alleged uncharged tax violations by 
Defendant. ECF No. [81] at 5. As background, the Government responds that the PPP enables 
businesses to apply for a loan based on 2.5 times their average monthly payroll as calculated using 
wages reported on the employees’ IRS Form W-2 (monthly W-2 payroll). ECF No. [91] at 3. The 
Government maintains that Defendant submitted falsified documentation to the IRS that inflated 
his monthly W-2 payroll, specifically by allegedly converting his entire employee workforce into 
 
2 However, the Government reserves the right to cross-examine witnesses if Defendant attempts to put 
forth purported falsehoods about his personal life. Id. at 3.  
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independent contractors by the end of 2019. Id. The Government also intends to prove that 
Defendant failed to pay his tax withholding obligations. Id. at 4.  
As with Motions in Limine Nos. 1 and 2, Defendant fails to identify what specific evidence 
he seeks to exclude. For that reason, the Court cannot decide whether Defendants’ alleged conduct 
with respect to his IRS filing and withholding obligations is intrinsic to the charged conduct. 
Accordingly, the better approach is for the Court to defer ruling on any objections to the 
introduction of tax-related evidence until the Government seeks to introduce such evidence at trial. 
D. Motion in Limine No. 4 
Defendant seeks to exclude evidence concerning his wealth and lifestyle, such as 
photographs of Defendant’s home and personal tax returns, on the grounds that such evidence 
would appeal to the jury’s class bias. ECF No. [84] at 4. The Government contends that the 
Defendant’s home is relevant in this action because the Internet Protocol (IP) addresses captured 
by lenders of loan processors in connection with the submission of allegedly fraudulent PPP loan 
applications point to that home and the photographs taken of the exterior of Defendant’s home 
address depict the “scene of the crimes” charged in the Superseding Indictment. ECF No. [91] at 
4-5. Regarding the tax returns, the Government represents that any of Defendants’ businesses’ 
income or losses are reported on his individual tax returns. Id. at 5. Defendants’ individual tax 
returns are thus relevant to the crimes charged in this case. Id. 
To the extent that the photographs establish that the IP addresses from which fraudulent 
PPP loan applications were allegedly submitted are the IP addresses of Defendant’s home, the 
location of the “scene of the crimes,” then those photographs would be conditionally relevant. See 
Fed. R. Evid. 104(b) (“When the relevance of evidence depends on whether a fact exists, proof 
must be introduced sufficient to support a finding that the fact does exist. The court may admit the 
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proposed evidence on the condition that the proof be introduced later.”). But the Court cannot 
discern how the exterior of Defendants’ home tends to prove that the relevant IP addresses are 
associated with the home. Absent further evidence, the photographs of Defendants’ home are 
irrelevant and inadmissible. 
As for Defendant’s individual tax returns, the Government’s Response indicates that the 
individual tax returns may be necessary to complete the story of the charged offenses to the jury if 
the returns pertain to a chain of events explaining the context, motive, or set-up of those offenses. 
On that basis, the individual tax returns would be admissible as evidence that is inextricably 
intertwined with the charged crimes. See Williford, 764 F.2d at 1499. The Motion is therefore 
denied as to Defendants’ personal tax returns.  
E. Motion in Limine No. 5 
Defendant seeks to exclude evidence “regarding his prior disgruntled employees or 
worker[s’] criticisms about nonpayment” on the grounds that such evidence is irrelevant, unfairly 
prejudicial, and improper character evidence. ECF No. [84] at 6. The Government responds that 
Defendants’ nonpayment of wages to independent contractors is intrinsic evidence necessary to 
“complete the story” because it is evidence of Defendants’ improper use of PPP funds. ECF No. 
[91] at 5. In addition, the evidence is relevant to the disgruntled employees or workers’ potential 
bias, which is proper to adduce on direct examination. Id.  
Evidence of nonpayment of Defendants’ workers is relevant to establishing that 
Defendants’ share of PPP funds did not go to its intended use under that program. That 
circumstance may support that the PPP and EIDL applications were false, or based on falsified 
documents, and Defendant and his alleged accomplices used the funds for their own use and to 
further the alleged fraud. ECF No. [60] ¶¶ 3-9. Such details would provide the jury with a fuller 
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account of the purported scheme to defraud the PPP and EIDL programs, if one existed, and is 
admissible as intrinsic evidence for that purpose. See Williford, 764 F.2d at 1499. Moreover, 
impeachment of a witness for bias is permissible. See United States v. Gearheart, No. 7:23-CR-
00013, 2023 WL 3808112, at *4 (W.D. Va. June 5, 2023) (“Proof of bias is almost always relevant 
because the jury, as the finder of fact and weigher of credibility, has historically been entitled to 
assess all evidence which might bear on the accuracy and truth of a witness’ testimony.” (quoting 
United States v. Abel, 469 U.S. 45, 52 (1984))). 
To the extent there is a risk the jury may infer from such evidence that Defendant has a 
propensity to defraud, Defendant may request a limiting instruction. See United States v. Elysee, 
993 F.3d 1309, 1342 (11th Cir. 2021), cert. denied, 142 S. Ct. 2782, 213 L. Ed. 2d 1018 (2022) 
(“Whenever a district court admits a statement for one purpose but not another, it must, ‘on timely 
request, [ ] restrict the evidence to its proper scope and instruct the jury accordingly.’” (citing Fed. 
R. Evid. 105)).  
F. Motion in Limine No. 6 
Defendant seeks additional time within which to file an appropriate response to the 
Government’s notice of intent to rely on 404(b) evidence, ECF No. [77], which concerns 
documents produced by the Government that are related to a potential employee’s visa application 
and alleged forgery. ECF No. [84] at 6-7. The Government does not object to Defendant’s request. 
ECF no. [91] at 6. Accordingly, the Court defers its ruling on the Motion.  
IV. 
CONCLUSION 
Accordingly, it is ORDERED AND ADJUDGED as follows: 
1. Defendant’s Motion in Limine, ECF No. [84], is GRANTED IN PART AND 
DENIED IN PART: 
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a. Defendant’s motion in limine no. 1 is DENIED. 
b. Defendant’s motion in limine no. 2 is DENIED. 
c. Defendant’s motion in limine no. 3 is DENIED. 
d. Defendant’s motion in limine no. 4 is GRANTED IN PART AND 
DENIED IN PART. The Government may not seek to introduce into 
evidence photographs of the exterior of Defendant’s home. The 
Government, however, may introduce evidence of Defendant’s individual 
tax returns.  
e. Defendant’s motion in limine no. 5 is DENIED.  
f. Defendant’s motion in limine no. 6 is DEFERRED until the Defendant has 
responded to the Government’s notice of intent to use Rule 404(b) evidence. 
The Defendant’s response shall be filed by October 2, 2023.  
DONE AND ORDERED in Chambers at Miami, Florida, on September 27, 2023. 
 
 
 
 
_________________________________ 
BETH BLOOM 
UNITED STATES DISTRICT JUDGE 
Copies to: Counsel of Record 
 
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