Motion to Strike 60 Indictment Motion to Strike Surplusage — USA v. Sheppard (Dkt. 115, S.D. Fla.)

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U.S. District Court for the Southern District of Florida · No. 1:22-cr-20290-BB · Doc. 115 · 2023-10-05 · 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 MOTION TO STRIKE  
SURPLUSAGE FROM THE SUPERSEDING INDICTMENT 
 
The Defendant Eric Dean Sheppard, by and through his undersigned counsel, pursuant to 
Fed. R. Crim. P. 7(d), submits this Motion to Strike Surplusage from the Superseding Indictment 
and in support states: 
BACKGROUND 
The Superseding Indictment charges Mr. Sheppard with nine counts of Wire Fraud related 
to certain government loan applications and five counts of Aggravated Identify Theft. [D.E. 60]. 
The Government contends that Mr. Sheppard submitted false and fraudulent PPP loan and EIDL 
applications on behalf of three companies and that Mr. Sheppard forged signatures of other persons 
on certain documents submitted in support of the different loan applications. Id. The Superseding 
Indictment goes well beyond the charged offenses. It is not just a speaking indictment, it is a 
screaming indictment of testimonial evidence not relevant to the crime charged. It reads like the 
Government’s opening statement, rather than a charging document. In this District unlike many 
others, the jury will receive a copy of the Superseding Indictment when it retires to deliberate. 
Case 1:22-cr-20290-BB   Document 115   Entered on FLSD Docket 10/05/2023   Page 1 of 5

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Therefore, it is especially important here— that the surplusage, which is completely inflammatory 
and prejudicial, should be stricken.  
ARGUMENT 
Under Federal Rule of Criminal Procedure 7(d), “[u]pon the defendant’s motion, the court 
may strike surplusage from the indictment . . .”. A motion to strike surplusage from an indictment 
should be granted when it is clear that the allegations are not relevant to the charge and are 
inflammatory and prejudicial. United States v. Saintvil, 22-10004, 2023 WL 3644976, at *5 (11th 
Cir. May 25, 2023) (citing United States v. Awan, 966 F.2d 1415, 1426 (11th Cir. 1992)). “An 
allegation which does not affect the charge and need not be proved may be rejected as mere 
surplusage.” United States v. Northcutt, 07-60220-CR, 2008 WL 162753, at *6 (S.D. Fla. Jan. 16, 
2008) (citing U.S. v. Noveck, 271 U.S. 201, 203 (1926)). “The inclusion of clearly unnecessary 
language in an indictment that could serve only to inflame the jury, confuse the issues, and blur 
the elements necessary for conviction under the separate counts involved surely can be 
prejudicial.” Id. (citing United States v. Bullock, 451 F.2d 884, 888 (5th Cir. 1971)); see also 
United States v. Martin, 8:17-CR-301-T-24AAS, 2018 WL 3617314, at *3 (M.D. Fla. Mar. 23, 
2018) (striking certain aliases from the indictment as they were irrelevant, served no purpose, and 
were prejudicial). 
An indictment is supposed to set forth the elements of the offense charged and sufficiently 
apprise the defendant of the charges to enable him to prepare for trial. United States v. Deason, 
965 F.3d 1252, 1264 (11th Cir. 2020) (“An indictment is valid only if it contains the elements of 
the offense intended to be charged, and sufficiently apprises the defendant of what he must be 
prepared to meet.”). It is not a tool for the Government to incorporate argument and testimony 
irrelevant to the charges in order to gain a tactical advantage at trial. As such, as argued in more 
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detail below, the irrelevant, inflammatory and prejudicial testimonial allegations related to the loan 
applications, bank processors, and accomplices should be stricken.  
1. 
Irrelevant information about the Applications Should be Stricken.   
The Government included surplusage about the loan applications which is irrelevant, 
inflammatory, and prejudicial in the Superseding Indictment. Specifically, Mr. Sheppard seeks to 
strike the following from the Superseding Indictment: 
Page 2, Paragraph 3, “Because independent contractors were able to apply for PPP loans 
on their own, employers’ payroll calculations and number of employees were based on wages paid 
to W-2 employees, not payments to independent contractors”; “typically, businesses would supply 
document showing the amount of payroll taxes reported to the IRS.” These statements are 
irrelevant to the charges, and testimonial in nature. What businesses would “typically” supply is 
irrelevant, as it was not required, is not an element of the offense, and will only confuse the jury 
into believing Mr. Sheppard is guilty because he didn’t do what a business “typically” did. 
Furthermore, it only puts an onus on the Defendant to explain this away. 
Page 2, Paragraph 4, which discusses processing the loan applications is completely 
irrelevant to the charged offenses. It is not an element of the offenses and will only mislead and 
confuse the jury. The Defense submits that what the loan process was supposed to be and what it 
was are two different things. Again, these paragraphs are purely testimonial, and irrelevant to the 
elements charged. This is a charging document, not a closing argument. 
Page 2, Paragraph 5, which discusses loan forgiveness is completely irrelevant and will 
only seek to confuse the jury as Mr. Sheppard did not seek loan forgiveness on the charged loans. 
As such, the statements are unnecessary and irrelevant to the charges and will only prejudice Mr. 
Sheppard.  
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Page 3, Paragraph 7 – information that needed to be provided on the loan application “such 
as the number of employees and gross revenues and costs of goods sold for the 12-month period 
preceding January 31, 2020.” The number of employees, gross revenues, and costs of goods sold 
was not the only information requested on the EIDL loan applications, businesses were required 
to submit more than that. The Government is cherry picking certain requirements that are   
completely prejudicial and inflammatory to Mr. Sheppard.  
Page 3, Paragraph 8 – “which processed the applications with support from a government 
contractor. The amount of the loan, if the application was approved, was determined based, in 
part, on the information provided in the application concerning the number of employees, gross 
revenues, and costs of goods sold.” (Emphasis supplied). These statements are irrelevant to the 
offenses as it is not required to prove the charges. Further, the statements are prejudicial and 
inflammatory as this information is not known by the applicant. Additionally, as implied there 
were other variables that were used to determine the amount of the loan, which is not included in 
the Indictment. As such, the jury will be misled by the Government’s arguments masked in the 
charging document.   
In sum, the inclusion of clearly unnecessary and inflammatory language in an indictment 
that could serve only to confuse the issues and blur the elements necessary for conviction is surely 
prejudicial. As demonstrated above, these allegations are completely unnecessary to the charges, 
testimonial, and will blur the elements for conviction and influence the jury to charge Mr. Sheppard 
on irrelevant facts. 
2. 
All References to Mr. Sheppard’s Alleged Accomplices Should be Stricken. 
The Government did not charge Mr. Sheppard with a conspiracy, nor did it charge any 
other “accomplice.” Notwithstanding, the Superseding Indictment references Mr. Sheppard’s 
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“accomplices” four different times. [See D.E. 60, page 5-6, paragraphs 3, 4, 9]. Mr. Sheppard’s 
alleged accomplices are completely irrelevant as the information serves no real purpose but to 
inflame the jury and prejudice Mr. Sheppard.  
WHEREFORE, Defendant, Eric Dean Sheppard, respectfully requests that this Court 
strike surplusage from the Superseding Indictment, including the irrelevant, prejudicial and 
inflammatory information of the loan applications, and Mr. Sheppard’s alleges accomplices, and 
for such other and further relief as may be just and proper.  
MEET AND CONFER CERTIFICATION 
The defense conferred with the Government who opposes relief requested herein.  
Dated: October 5, 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 5, 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 115   Entered on FLSD Docket 10/05/2023   Page 5 of 5

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