Reply to Response to Motion by Eric Dean Sheppard re 85 Motion to Dismiss 60 Indictment — USA v. Sheppard (Dkt. 114, S.D. Fla.)

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U.S. District Court for the Southern District of Florida · No. 1:22-cr-20290-BB · Doc. 114 · 2023-10-03 · Docket on CourtListener

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UNITED STATES DISTRICT COURT 
SOUTHERN DISTRICT OF FORIDA 
CASE No. 22-20290-CR-BLOOM/OTAZO-REYES 
 
UNITES STATES OF AMERICA, 
 
Plaintiff,  
v.  
ERIC DEAN SHEPPARD, 
 
Defendant. 
____________________________________/ 
DEFENDANT’S REPLY IN SUPPORT OF HIS MOTION TO DISMISS 
 
The Defendant Eric Dean Sheppard, by and through his undersigned counsel, submits his 
Reply in Support of his Motion to Dismiss the Superseding Indictment [D.E. 60] in its entirety. 
[D.E. 85].  
The Government’s Response in Opposition [D.E. 108] is unpersuasive, flawed, and should 
be disregarded for the following reasons.  
First, the Government contends that the Defendant “never explains why he thinks the ‘crux’ 
language is a necessary element of aggravated identity theft” nor “cite[s] which language in Dubin 
he thinks supports his reading.” [D.E. 108 at 5]. The Government’s argument is unpersuasive as 
the Defendant directly quotes the language of Dubin v. United States. [See D.E. 85 at 4-5].  
Second, the Government claims that “Dubin spells out what courts should include in their 
aggravated identity theft jury instructions rather than what the grand jury must find to return an 
indictment for that offense.” [D.E. 108 at 5-6]. The Government’s reading is creative at best as 
Dubin doesn’t once mention that the opinion is made to spell out what courts should include in 
their jury instructions. In fact, the Court in Dubin doesn’t once mention jury instructions.   
Case 1:22-cr-20290-BB   Document 114   Entered on FLSD Docket 10/03/2023   Page 1 of 3

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Third, the Government’s reading of Dubin is flawed and defies logic. If Dubin only 
required courts to add the additional requirement (that the defendant’s misuse of another person’s 
means of identify must be at the crux of what makes the underlying offense criminal) in the jury 
instructions but not the indictment, indictments and jury instructions would consistently be at odds 
with one another, as is the case here. A reading of the Superseding Indictment demonstrates this 
inconsistency. [See D.E. 60 at pages 5-6, ¶¶ 4-8]. This reading would mislead jurors on the 
requirements of an Aggravated Identity Theft charge, a serious charge which carries a mandatory 
two year minimum sentence per charge.  
Fourth, the Government did act with vindictiveness in charging Mr. Sheppard with eleven 
new charges just weeks before trial. Contrary to the Government’s assertions, the Government told 
Mr. Sheppard it would not indict the aggravated identity theft charge if the Defendant pled guilty. 
It purposefully dangled this carrot and only after Mr. Sheppard chose to go to trial, brought eleven 
new charges. Furthermore, the Government’s vindictiveness can also be found in its inaccurate 
and misleading Notice of Intent to Introduce 404(b) Evidence, pending before the Court. See [D.E. 
77; 113]. 
Fifth, the Government fails to address Mr. Sheppard’s main point regarding the forfeiture 
allegations: that the amount in the Indictment is defective. The Government charged the Defendant 
with three loans that resulted in payment of approximately $446,988, not $893,145 as alleged in 
the forfeiture allegations. Moreover, the Government is aware that the home was bought in 2009 
and that the mortgage payments for the home are on autopay. The Government will not be able to 
prove that the SBA funds were used to pay the mortgage. As the Government is well aware, the 
SBA funds were comingled; that in and of itself does not demonstrate those specific loan dollars 
were used to pay the mortgage rather than the additional monies funding the account. Defendant’s 
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position is that the SBA dollars are not traceable. The Government’s failure to address this basic 
point shows they know the Indictment is defective. 
WHEREFORE, Defendant, Eric Dean Sheppard, respectfully requests that this Court 
dismiss the Superseding Indictment because it is the product of vindictive prosecution, Counts 10-
14 fail to state an offense, and the forfeiture charges are defective.  
 
Dated: October 3, 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 October 3, 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 114   Entered on FLSD Docket 10/03/2023   Page 3 of 3

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