Court filing
REPLY TO RESPONSE to Motion by USA as to Eric Dean Sheppard re 113 MOTION in Limine… — USA v. SHEPPARD (Dkt. 116)
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| Court | U.S. District Court for the Southern District of Florida |
|---|---|
| Filed | 2023-10-10 |
U.S. District Court for the Southern District of Florida · No. 1:22-cr-20290-BB · Doc. 116 · 2023-10-10 · Docket on CourtListener
Summary
The United States' reply to the defendant's response to the government's Rule 404(b) notice in United States v. Eric Dean Sheppard, No. 1:22-cr-20290-BB, in the U.S. District Court for the Southern District of Florida, filed October 10, 2023 as Document 116 by Assistant United States Attorney Aimee C. Jimenez. The government describes additional facts it says it learned from a witness who had been listed as a manager of the defendant's companies, concerning the use of that witness's name and signature on a law firm engagement letter and visa application documents. It argues this evidence is admissible as inextricably intertwined with the charged PPP and EIDL loan offenses and, alternatively, under Rule 404(b). The reply also argues that the defendant is not entitled to an evidentiary hearing and asks the court to allow the proposed evidence.
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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’ REPLY TO DEFENDANT’S RESPONSE
TO THE GOVERNMENT’S RULE 404(B) NOTICE
The United States of America, through the undersigned Assistant United States Attorney,
files this reply to the defendant’s response seeking to exclude the evidence set forth in the
government’s Rule 404(b) notice (DE 77). The government has learned additional facts from J.G.
that render the defendant’s conduct described in its notice, and further described below,
admissible at trial as inextricably intertwined evidence, as well as properly admissible evidence
under Rule 404(b).
I.
Expected Evidence
As charged in the Superseding Indictment, the evidence will show that the defendant used
several companies to fraudulently seek and obtain multiple Paycheck Protection Program (“PPP”)
loans and multiple Economic Injury Disaster loans (“EIDL”). As explained below, J.G. is a
witness who will testify regarding the defendant’s companies. During a recent meeting with J.G.
to prepare his trial testimony, J.G. provided the government additional facts regarding the positions
he held within the defendant’s companies. J.G. explained that until March of 2019, J.G. was an
officer or “manager” of several of the defendant’s corporations, including HM Management and
Case 1:22-cr-20290-BB Document 116 Entered on FLSD Docket 10/10/2023 Page 1 of 11
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Development, LLC (“HM Management”), the main corporation that manages the other companies,
which other companies exist simply to hold the defendant’s ownership interest in the properties
that the defendant owns and develops. Until March of 2019, J.G. was also the listed manager for
HM Four, LLC, and as far as he was aware, he was the listed manager on four additional
companies. J.G. is expected to testify that once he learned of the defendant’s conduct described
in the Rule 4040(b) notice, he immediately directed the defendant’s corporate counsel (not counsel
in this case) to remove his name from the State of Florida, Division of Corporations (“Sunbiz”)
records of the defendant’s companies on which he was the listed manager, and to replace his name
with the defendant’s name. According to J.G., he took this step so that the defendant would be
unable to misuse J.G.’s name and title as the legal representative of HM Management, and of other
companies, on documents and company activity about which J.G. was unaware. J.G. supplied the
government a copy of the March 11, 2019 email he wrote to the defendant’s corporate counsel
with instructions to remove him as Manager, listing the name of six of the defendant’s
corporations, including HM Management and HM Four. HM Management and HM Four are two
of the three corporations listed in the Superseding Indictment as having applied for and obtained
fraudulent PPP and/or EIDL loans.
J.G. also produced an “engagement letter agreement” that HM Management entered into
with a law firm, dated May 2, 2018, for the purpose of having that law firm prepare and file the
visa application documents discussed in the government’s Rule 404(b) notice. The engagement
letter contains J.G.’s name and purported signature as Manager of HM Management. J.G.
explained that he had not hired this law firm for any purpose, that his name and title were used on
the engagement letter without his knowledge and permission, and that his signature had been
forged on this document in connection with the events involving the visa application discussed in
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the Rule 404(b) notice.
J.G. also discussed the handwriting style involved in the forgeries of his signature on the
three documents: the engagement letter, the letter to the U.S. Embassy in Mexico, and the Notice
of Appearance filed with the U.S. Department of Homeland Security (DHS Form G-28). J.G. has
known the defendant since they were kids in school together and is familiar with the defendant’s
handwriting. According to J.G., the forged signature and other writing on the engagement letter
reflect the defendant’s handwriting, while the forged signature on the other two documents do not
reflect the defendant’s handwriting. J.G. is expected to testify that the person who signed or forged
J.G.’s name on behalf of HM Management on those documents would have done so at the
defendant’s direction. As to the false information provided on the letter to the U.S. Embassy about
the individual being sponsored for a visa, J.G. knows the visa applicant as someone who worked
in a marketing-type capacity at the defendant’s entertainment/strip club and was not someone who
was expected to fill a “full-time” “graphic designer” position at HM Management.
In an effort to streamline this evidence, at trial the government is expected to elicit from
J.G. why he was removed as an officer from the defendant’s companies after 2018. The
government will elicit the circumstances under which J.G. learned that his name had been misused
in this way, which occurred when the billing department at a law firm contacted him in 2019 to be
paid for services rendered. J.G. would explain that he requested to see the documents, which the
law firm then provided him. J.G. would further explain that he then discovered that his name and
signature had been used without his permission as the representative of HM Management to hire
a law firm for an immigration matter, and to be the sponsor of a visa application (that
misrepresented the job of the applicant) that the law firm would be handling. J.G. is expected to
testify that he confronted the defendant about it, and that he took action by directing that his name
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be removed as an officer or manager from all of the defendant’s corporations. The government
will seek to introduce into evidence the March 2019 email from J.G. to the defendant’s corporate
counsel which contains J.G.’s instructions to remove his name as Manager of certain companies
from the Sunbiz records.
Finally, J.G. is expected to testify that the defendant’s unauthorized use of J.G.’s name,
title and signature on the visa documents and engagement letter was not the main reason for J.G.’s
departure in 2020, but it was a factor in his decision to take a position elsewhere.
II.
Argument
A. Evidence of the Defendant’s use of J.G.’s name, signature and title in connection with
the hiring of a law firm and submission of visa application documents, without his
permission, is admissible as inextricably intertwined evidence.___________________
In the Eleventh Circuit, evidence is admissible as intrinsic to the offense charged if it is
inextricably intertwined or necessary to complete the story:
Evidence of criminal activity other than the charged offense is not considered
extrinsic within the proscription of Rule 404(b) of the Federal Rules of Evidence if
it is an uncharged offense which arose out of the same transaction or series of
transactions as the charged offense, United States v. Kloock, 652 F.2d 492, 494 (5th
Cir. 1981), if it was inextricably intertwined with the evidence regarding the
charged offense, United States v. Killian, 639 F.2d 206, 211 (5th Cir. 1981), cert.
denied, 451 U.S. 1021, 101 S. Ct. 3014, 69 L. Ed. 2d 394 (1981), or if it is necessary
to complete the story of the crime of the trial, United States v. Wilson, 578 F.2d 67,
72-73 (5th Cir. 1978).
United States v. Weeks, 716 F.2d 830, 832 (11th Cir. 1983); United States v. Edouard, 485 F.3d
1324, 1344 (11th Cir. 2007). Stated somewhat differently, A[e]vidence, not part of the crime
charged but pertaining to the chain of events explaining the context, motive and set-up of the crime,
is properly admitted if linked in time and circumstances with the charged crime, or forms an
integral and natural part of an account of the crime, or is necessary to complete the story of the
crime for the jury.@ United States v. McLean, 138 F.3d 1398, 1403 (11th Cir. 1998); United States
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v. Horner, 853 F.3d 1201, 1213 (11th Cir. 2017). Because such evidence is not extrinsic to the
offense charged, the Court need not conduct a Rule 404(b) analysis. United States v. Williford,
764 F.3d 1493, 1499 (11th Cir. 1985).
In this case, J.G. worked alongside the defendant for 20 years, until the end of March of
2020. J.G. is expected to testify about the defendant’s companies, particularly the companies that
applied for the PPP and EIDL loans that are the subject of the Superseding Indictment – HM
Management, HM-UP Development Alafaya Trails, LLC (“Alafaya Trails”), and HM Four. J.G.
was the listed Manager of HM Management and HM Four until he requested to be removed from
those companies in March of 2019.
The PPP loan applications as well as the EIDL applications requested information about
the business operations, gross revenues, and number of employees going back to the 2019 calendar
year. The defendant’s loan applications contained information about his business revenues,
number of employees, and names of employees in 2019. J.G. is expected to testify about his role
within the defendant’s business operations. The reason for J.G.’s decision to be removed as
Manager of several companies, particularly HM Management, is inextricably intertwined evidence
and completes the story of J.G.’s association with, and departure from, the defendant’s companies.
B. The same evidence is admissible under Rule 404(b).
The defendant raises several arguments against the admissibility of this evidence under
Rule 404(b). First, as to the government’s Notice being “inaccurate” or “misleading,” the
government did have incomplete information when it filed the Rule 404(b) notice, which the
factual recitation above addresses.1 As to the argument that J.G. does not claim or believe that the
1 The defendant complains that the government made disclosures about some of the
information it learned from J.G. regarding the forged visa documents by way of an email instead
of FBI 302 reports. However, neither the government’s emails nor the FBI reports constitute
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defendant forged the visa documents, that too is addressed above. The distinction that the
defendant relies upon – that the defendant was not the one who held the pen over the paper and
wrote out J.G.’s name – is a distinction without a difference. The decision to use J.G.’s name on
documents submitted on behalf of HM Management– without his knowledge or consent - was the
defendant’s decision, not the decision of his staff. Next, J.G. will testify to having personal
knowledge of all of the facts described above. Furthermore, the defendant’s arguments are not
persuasive that, on the one hand, the J.G. forgery incident is not sufficiently similar to the crimes
charged in this case to be probative, but on the other hand, the evidence is highly prejudicial
because it will cause the jury to draw an improper propensity inference - that if the defendant
forged before, he forged again. Finally, the defendant is not entitled to an evidentiary hearing so
that his counsel can have an extra, pre-trial opportunity to cross examine the government’s witness.
i.
The testimony of J.G. will prove that the defendant committed these acts by a
preponderance of the evidence._______________________________________
J.G. will testify about his job responsibilities at HM Management; about the HM
Management engagement letter and other documents that he himself saw, that had been prepared
and signed without his knowledge or consent; about confronting the defendant about it; and about
taking steps to have his name removed from HM Management and from the other of the
defendant’s corporations on which he was listed as an officer. J.G.’s testimony will be based
Jencks material of J.G., and both types of disclosures can be used to impeach the witness if the
information provided is impeachment material. Furthermore, the FBI report referenced by the
defendant’s counsel does not contradict the government’s 404(b) notice or J.G.’s account. The
report notes that, after J.G. spoke with the attorney (and learned what had happened), J.G.
“contacted Sheppard to see why his name and his signature were used without his knowledge or
permission for the DHS Form-28. [J.G.] said Sheppard became angry at him and yelled at him
stating ‘I have to clean up the mess you made!’” The only words quoted in the report were the
words that the defendant said to J.G. The FBI report is intended as a summary of the interview; it
is not a “statement” of the witness. Defendant’s Response at 3, 9.
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entirely on his personal knowledge. The defendant cannot deny that this occurred; that J.G.’s name
and signature were used as the company representative on the defendant’s own company’s
documents, without J.G.’s knowledge or consent. The government will prove these facts by and
beyond a preponderance of the evidence.
J.G. would also testify that he recognized the defendant’s handwriting, and that the
defendant himself penned J.G.’s signature and other writings on the engagement letter, without his
knowledge or consent. As to the visa documents that contain J.G.’s forged signature, J.G. has
always maintained that his name and his signature were used without his knowledge or permission
and that his signature was forged. As noted above, the government had not previously delved into
the particulars of the handwriting of the forgeries. Whether the defendant himself penned J.G.’s
name, or whether he directed his staff to sign for J.G. and told his staff, for instance, that J.G. was
out of the office and needed the document signed, J.G. has always maintained that the defendant
is responsible for the use of J.G.’s name and signature on documents from the defendant’s
company, HM Management, and that it was done without his knowledge or permission.
The defendant denies that he made any admission about this conduct in the letter he wrote
to the law firm in an effort to explain what had happened after J.G. confronted him.2 The
defendant’s letter is a self-serving statement full of transparent excuses: the defendant refers to
the engagement letter having been “inadvertently executed by my office” and J.G.’s name “was
supposed to be removed,” and that “I forwarded the engagement letter without even looking at the
2 The defendant’s letter to the law firm is not a “facially” privileged communication. The letter
is dated March 8, 2019, ten months after the original engagement letter. The letter is an effort to
explain away the defendant’s inexplicable use of J.G.’s name as the HM Management
representative on all of the documents. The defendant refers to the visa applicant as having needed
the visa by July 2018, and the only ongoing matter that he references is the outstanding bill that he
still needs to pay the firm.
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signature so that would ultimately be my inadvertent mistake.” As for the “visa submission,” the
defendant’s excuse for the use of J.G.’s name is downright silly. He states, “I personally was not
in [t]own as I was on vacation and instructed people by telephone while hiking on a mountain, so
obviously a misunderstanding occurred.” The defendant tries to blame his staff: “Their [sic] in
no shape or form was any intention or bad faith with the signature mistake, just miss [sic]
understanding and careless by office staff.” To be clear, the defendant’s office staff consisted of
four people: J.G. (who had worked there for 19 years at that point), the defendant’s office
manager/bookkeeper (also a long-time worker for the defendant), the office manager’s daughter,
and a part-time worker/ runner who made trips to the bank for deposits (and was also a long-time
worker for the defendant). J.G. is expected to testify that, based on his experience working
alongside the defendant for 20 years, the defendant’s “staff” does what the defendant tells them to
do. No one would replace the defendant’s name with J.G.’s name, as the authorized representative
of HM Management, without being told to do so by the defendant himself. J.G. would testify from
personal knowledge to an incontrovertible fact: that the three documents – the law firm’s
engagement letter, the letter to the U.S. Embassy in Mexico and the Visa Form G-28 – listed J.G.’s
name and signature, as the representative of HM Management, without his knowledge or consent.
ii.
The forgery incident is highly probative of the defendant’s intent.
In the defendant’s response, he “denies signing any of the alleged forged signatures” in this
case. Defendant’s Response at p. 6. That is all the more reason why this conduct should be
admitted at trial. The government has a need for this evidence. As the Eleventh Circuit has
recognized, a defendant who enters a not guilty plea “makes intent a material issue which imposes
a substantial burden on the government to prove intent.” United States v. Zapata, 139 F.3d 1355,
1358 (11th Cir. 1998). In this case, the defendant specifically denies signing the forged documents
Case 1:22-cr-20290-BB Document 116 Entered on FLSD Docket 10/10/2023 Page 8 of 11
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that are the subject of substantive counts. Aside from being inextricably intertwined evidence, this
evidence is probative of the defendant’s intent. See Id. (the government “may prove [intent] by
qualifying Rule 404(b) evidence”); United States v. Barrington, 648 F. 3d 1178, 1187 (11th Cir.
2011) (in scheme to change students’ grades on the university’s grading system, co-defendant’s
testimony of the defendant’s prior forgery was “highly probative” of the defendant’s intent).
The defendant’s letter to the attorney may be a preview of his defense in this case: that he
was away hiking on a mountain when his staff falsified and forged his accountant’s signature on
those tax returns, or that his staff was “careless” and falsified the documents submitted in support
of the loan applications that are the subject of this case. The defendant forged – or directed others
to sign- J.G.’s signature on the engagement letter and the visa documents, as he forged or directed
others to sign documents submitted to support the loan applications in this case. The defendant’s
prior use of J.G.’s name, title, and signature without J.G.’s knowledge or consent involves similar
conduct and the same state of mind that is at issue in this case with the defendant’s submission of
falsified and forged documents. This evidence should be admitted to prove that the defendant’s
conduct in this case was intentional; that it was not due to the “carelessness” of his staff. The
proposed evidence will bear on the defendant’s intent, opportunity, preparation, plan, knowledge,
absence of mistake and lack of accident, as to the forged and falsified documents in this case.
iii.
The probative value of this evidence is not substantially outweighed by the danger
of undue prejudice._________ _________________________________________
The defendant complains that this evidence is prejudicial. The question for the Court is
whether this evidence is substantially outweighed by the danger of undue prejudice. This evidence
involves a single, highly probative incident, close in time to the events in this case. Any danger
of undue prejudice can be mitigated by an accompanying instruction from the Court to help the
jury put the evidence in its proper context.
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iv.
The defendant is not entitled to an evidentiary hearing.
The defendant requests an evidentiary hearing. The defendant is not entitled to an
evidentiary hearing, the purpose of which will be to have a pre-trial opportunity to cross examine
the government’s witness. Furthermore, the defendant cites no case law to support this request.
The government acquired additional information from J.G., set forth above, which addresses the
issues the defendant raised in his response about the forgeries. The government has laid out its
evidence in the Rule 404(b) notice and in this Reply, and it has provided the defendant all of the
documents the government received relating to this conduct. The defendant’s counsel will be able
to fully cross examine the government’s witness on this subject at trial.
Conclusion
For the reasons set forth above, the government respectfully requests that the Court allow
the proposed evidence set forth both in its Notice and in this Reply, as inextricably intertwined
evidence, and evidence that is admissible under Fed. R. Evid. 404(b).
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
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on October 10, 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
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