Reply to Response to Motion by Eric Dean Sheppard — USA v. Sheppard (Dkt. 118, S.D. Fla.)

Record facts

U.S. District Court for the Southern District of Florida · No. 1:22-cr-20290-BB · Doc. 118 · 2023-10-17 · 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. 
____________________________________/ 
REPLY BRIEF IN SUPPORT OF DEFENDANT’S 
MOTION IN LIMINE TO PRECLUDE THE NOTICED  
RULE 404(B) EVIDENCE AND REQUEST FOR AN EVIDENTIARY HEARING 
 
Pursuant to Local Rule 7.1(c), Defendant Eric Dean Sheppard, by and through his 
undersigned counsel, submits this Reply Brief in further support of his Motion in Limine to 
preclude the noticed Rule 404(b) evidence and request for evidentiary hearing (“Motion”) [DE 
113].1  
The Response does a complete 180° from the Rule 404(b) Notice (“Notice”), necessitating 
a substantive reply brief. The Government’s Notice and the Response both serve up inflammatory 
and prejudicial allegations based on speculation, wishful thinking, and what-ifs. Something is 
 
1 As noted in the Motion filed on October 2, 2023 [DE 113 at 1 n. 1]: 
 
On September 28, 2023, the Court granted Defendant additional time to brief his Motion 
in Limine No. 6 regarding the Rule 404(b) evidence. [D.E. 111 at 9]. Therefore, while this 
brief is a response to the Government’s 404(b) Notice, it is also styled as a motion in limine, 
consistent with Defendant’s timely filed motion from September 15, 2023, at [D.E. 84]. 
 
Defendant thus properly filed the Motion via ECF as a motion, and ECF properly noted “Responses 
due by 10/16/2023,” fourteen days later. [DE 113]. However, on October 10, the Government filed 
its response (“Response”) incorrectly as a reply brief [DE 116], presumably to deny Defendant 
due process in responding to the new information, arguments, and documents raised by the 
Government for the first time in the Response. 
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rotten regarding this Rule 404(b) business, as shown by its short, sordid, and frankly bizarre 
history: 
BACKGROUND 
1. 
On September 12, 2023, the Government produced documents obtained from J.G., 
which included a form that was to be filed by Defendant’s company, HMMD (as defined in the 
Motion) with the U.S. Department of Homeland Security (“DHS”), and a letter from HMMD to 
the U.S. Embassy in Mexico (together, the “Visa Documents”).  
2. 
On September 13, the Government sent Defense counsel an email (“Disclosure”; a 
redacted copy of which is attached as Exhibit A). The Disclosure stated that “[J.G.] . . . indicated 
that . . . Mr. Sheppard had forged his signature on visa application documents.” [Ex. A].   
3. 
On September 14, the Government filed its Notice. [DE 77]. The Notice stated that 
“J.G. learned that defendant had forged J.G.’s signature” on the Visa Documents. [DE 77 at 2]. 
The Notice emphasized that the Rule 404(b) evidence was fraud on a federal agency, the DHS. 
[DE 77 at 4]. The Notice did not state how J.G. knew Defendant forged J.G’s signature on the Visa 
Documents or whether he could prove it. Unlike the Disclosure, the Notice stated that the Visa 
Documents contained “false representations” but did not identify the alleged false representations 
or state how J.G. could prove these representations were allegedly false or, more importantly, 
Defendant’s knowledge of same.  [Id.].  The Notice argued that the proposed Rule 404(b) evidence 
was admissible on the issue of intent, not that the evidence was “inextricably linked” to the charged 
conduct. [DE 77, passim]. The Notice made no mention of the reason why J.G. ceased being listed 
on Sunbiz as a manager or left Defendant’s companies, which has no relevance to the charged 
conduct. The Notice made no mention of the engagement letter between HMMD and the law firm 
and claimed no forgery on it (“HMMD Engagement Letter”). As of the date of the Notice, the 
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Government had not produced the HMMD Engagement Letter. Finally, the Notice stated it was 
based on information learned during an interview of J.G. on September 8, 2023. [DE 77 at 1]. 
4. 
Contrary to the Notice, based on information obtained by the Defense, J.G. did not 
claim that Defendant forged his name on the Visa Documents or that the Visa Documents 
contained false misrepresentations.  
5. 
On September 21, upon demand by the defense, the Government produced the 302 
from the September 8, 2023 interview of J.G. that, per the Government, formed the basis for the 
Notice (“302”; a redacted copy of which is attached as Exhibit B, at 2). In the 302, J.G. did not 
claim that Sheppard forged his signature on Visa Documents and did not claim that the Visa 
Documents contained false representations, contrary to the Notice. J.G also did not claim that 
Defendant forged his name on the HMMD Engagement Letter, and he also did not claim that this 
matter was a reason for any part of J.G.’s work history.  
6. 
Knowing that the Court ordered the Motion be filed by October 2, the Government 
chose not to update or amend its Notice, even though, based on Defendant’s information, the 
Government knew the Notice was false. 
7. 
On October 2, Defendant filed the Motion and argued, among other things, that the 
allegations in the Notice cannot be proven by a preponderance of the evidence because J.G. never 
claimed what is in the Notice. [DE 113 generally]. Given the unusual circumstance of the 
Government being unable to prove the evidence in its Notice, the Motion requested an evidentiary 
hearing to ensure the Government can sustain its burden of proof before the Government presents 
these false and inflammatory allegations to the jury. [DE 113 at 10]. 
 
 
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REPLY ARGUMENT 
The Government’s Response makes different and completely new allegations from those 
set forth in the Notice. This new information and these new allegations were known to the 
Government before the Motion was filed (and likely much earlier), and they are inadmissible.   
I. 
The Response Falsely Suggests It Is Based On New Information 
Save for the first sentence, the Response ignores the Notice. The Response states the 
Government “learned additional facts from J.G . . . . during a recent meeting with J.G. to prepare 
his trial testimony.” [DE 116 at 1 (second and fifth sentences of Response)]. However, based on 
Defendant’s information, the Government did not meet with J.G. or his counsel at any point 
between Defendant filing his Motion and the Government filing its Response. Thus, the allegedly 
new information in the Response was known to the Government before the Motion was filed.  
II. 
The Response Proposes New J.G. Testimony That Is Inadmissible, Is Denied by J.G., 
And Cannot Be Proven By A Preponderance Of The Evidence 
 
A. 
Speculation That Defendant Directed Someone Else to Forge J.G.’s signature 
On The Visa Documents Is Not Admissible 
 
Interestingly, and doing a complete 180° from its Notice, the Government no longer claims 
that J.G. will testify Defendant forged his name on the Visa Documents. In the Response, the 
Government claims, for the first time, that J.G. will testify that whoever forged J.G.’s name on the 
Visa Documents “would have done so” only at Defendant’s direction. [DE 116 at 3]. This is based 
on J.G.’s purported belief that no one at Defendant’s companies has ever done anything without 
Defendant’s knowing approval. [D.E. 116 at 3, 8].  By that logic, why not cut out the 404(b) and 
just have J.G. testify that Defendant must have been a knowing participant in all the charged 
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crimes, relying on the same over-the-top speculation?2  None of this speculation is admissible. 
Fed. R. Evid. 602 (a witness’ testimony must be based on personal knowledge); Pineda v. 
Pescatlantic Group, LLC, 16-25291-CIV, 2018 WL 11346674, at *4 (S.D. Fla. Aug. 16, 2018) 
(noting the court would “not permit a lay witness to testify on matters of which he or she has no 
personal knowledge, unless that lack of knowledge is somehow relevant to the facts of this case.”). 
Moreover, and more importantly, that is not what J.G. says. Defendant’s information is that J.G 
recognizes and agrees that he cannot swear under oath who was involved in forging his name.    
The Government needs a witness who can provide admissible testimony, and J.G. is not 
that witness. The Government offers arguments built on complete distortions of what JG actually 
says. For example:  
The distinction that the defendant relies upon – that Defendant was not the one who held 
the pen over the paper to sign J.G.’s name [on the Visa Documents] – is a distinction 
without a difference. The decision to use J.G.’s name on the documents submitted by 
HM[MD] – was the Defendant’s decision, not the decision of his staff. [DE 116 at 6]. 
 
None of this is connected to reality. First, Defendant never “relie[d] on” a distinction between 
signing J.G’s name versus directing another to do it. The Motion correctly pointed out that the key 
assertion in the Notice—that J.G. would testify that Defendant is the person who signed his name 
on the Visa Documents—is unproven and indisputably false. The Motion did not address whether 
Defendant directed another to forge J.G.’s name only because the Government never made this 
allegation until after the Defendant filed the Motion. Second, as noted, the Government has no 
evidence Defendant directed whoever signed J.G.’s name to do so or that any number of workers 
(the Government offers no support for saying there were only four) did not do so on their own.  
 
2 Similarly, all CEOs would be subject to speculative testimony that they must have directed their 
underlings’ crimes because CEOs are generally in charge. This is not how the criminal justice 
system works in the United States 
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Again, J.G. never said he knows who did it. Finally, who says the person behind this alleged 
forgery could be only the Defendant or the four individuals referred to by the Government?  While 
the Defendant does not bear the burden here, the emails produced by the Government (last week) 
show the visa applicant herself—a person who obviously had a motive—was communicating 
directly with the law firm about the Visa Documents. She was intimately involved in preparing the 
actual documentation. Yet, the Government insists it has the right to lead the jury into speculation 
that Defendant had to have been in the weeds of the process and had to have directed the forger to 
sign J.G.’s name to the Visa Documents. The Government’s desperate arguments are just words 
on a brief, not evidence.3  
B. 
Speculation That The Visa Documents Mispresent Applicant’s Intended 
Position  
 
The “false statement” evidence, finally identified in the Response, is more weak sauce: 
J.G. knows the visa applicant as someone who worked in a marketing type capacity 
. . . and was not someone who was expected to fulfill a “full time” graphic designer 
position. . . 
 
[DE 116 at 3]. Employment in marketing does not preclude employment as a graphic designer, 
and J.G. cannot and will not say the applicant lacked the requisite skills or there was no position 
available. In fact, Defendant understands that J.G. claims no personal knowledge on this issue. 
Separately, assuming arguendo the Government can prove the statement was false, the 
Government does not proffer evidence of Defendant’s knowledge or complicity. 
 
3 The Response similarly argues that “J.G. has always maintained that the defendant is responsible 
for the [unauthorized] use of J.G.’s name and signature on documents from the Defendant’s 
company, HM[MD].” [DE 116 at 7]. The 302 shows otherwise, but more importantly the 
Government has not shown that it can prove this with admissible testimony, and Defendant’s 
information is that J.G., the Government’s only witness, denies this. Faced with the Motion, the 
Government has not provided a 302 from any allegedly more recent interview that contains any of 
this testimony. Nor can it. Moreover, Defendant’s information is that J.G. never claimed to the 
Government he could testify under oath who was responsible for the forgery.  
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C. 
Speculation That Defendant Forged J.G.’s Signature On The Engagement 
Letter Between HMMD And The Law Firm 
 
The Notice did not mention the HMMD Engagement Letter, period. Only in the Response 
does the Government now accuse Defendant of forging J.G.’s signature on the HMMD 
Engagement Letter, or as the Response puts it, J.G. would testify that he thinks the signature of 
J.G.’s name on the HMMD Engagement Letter “reflects” Defendant’s hand, whatever that is 
supposed to mean. [DE 116 at 2]. Such equivocal guessing and speculation lacks foundation. J.G.  
does not claim to have the requisite personal knowledge to identify Defendant as the signer of his 
name on the HMMD Engagement Letter.4 Based on Defendant’s information, J.G. has no idea 
who signed his name on the HMMD Engagement Letter and cannot say the script handwriting of 
J.G.’s name was done by Defendant. Not surprisingly, in the 302 discussed above, J.G. never 
claimed that Defendant forged J.G.’s signature on any document at any time. Notably, the same 
302 records J.G. speculating, regarding an unrelated document containing Defendant’s purported 
signature, that it “feels like” Defendant signed Defendant’s own name there. [See Ex. B at 1].  
Thus, while J.G. may well have the requisite personal knowledge to identify Defendant’s signature 
of Defendant’s own name when asked to do so by the Government, even his testimony there was 
equivocal.5    
Moreover, between the Notice and the Response, the Government has yet to form any 
argument regarding the admissibility of a potentially forged engagement letter with a law firm, as 
opposed to fraud on a government agency which is the basis for the Notice. Even assuming 
 
4 For example, J.G. does not claim to have seen Defendant sign J.G’s name on prior occasions 
such that he can recognize Defendant’s version of J.G.’s signature. J.G. also does not claim he is 
familiar enough with Defendant’s script handwriting that he can discern that Defendant is the 
person who signed J.G.’s name on the HMMD Engagement Letter. 
5 All this equivocation on what the forgery of J.G.’s name would look like if done by Defendant 
would not meet the Rule 404(b)’s requirement of proof by a preponderance of the evidence. 
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arguendo the allegation was proven, that would not be fraud on the DHS. Defendant could have 
just as well used another person at HMMD (including himself) to sign an engagement letter for 
Defendant’s company with Defendant’s company law firm, which is even further removed from 
the charged conduct. 
D. 
The Government’s “Inextricably Intertwined” Desperation  
 
The Government has a problem when it starts with a strongly worded 404(b) Notice falsely 
claiming  a witness will testify that Defendant forged the witness’s name on a document to be sent 
to DHS, and ends with a half-baked inextricably intertwined argument that  it is possible Defendant 
may have signed the witness’s name to an engagement letter between the Defendant’s company 
and a law firm (not on a form being sent to a governmental agency). 
The Government now seeks to shoehorn all the unproven speculative accusations against 
Defendant into the trial by claiming J.G. must be permitted to explain why he requested to be 
removed as manager on Sunbiz in 2018 and why he left Defendant’s companies for a new employer 
in 2020: 
J.G. is expected to testify about his role within defendant’s business operations. The reason 
for J.G.’s decision to be removed [on Sunbiz] as Manager of several companies, 
particularly HM[MD], is inextricably intertwined evidence and completes the story of 
J.G.’s association with and departure from, the Defendant’s companies.   
 
None of this is connected to reality. First, Defendant’s information is that J.G.’s “role 
within the business operations” and eventual departure had absolutely nothing to do with this 
matter. That is, had the alleged prior act not taken place, J.G. would still have continued the same 
work with the same responsibilities, whether or not listed as manager on Sunbiz, and he still would 
have left for the new job. This matter had no impact on his decision to leave his job with 
Defendant—one year later, in March 2020—for a better opportunity especially in light of the 
challenges to Defendant’s companies during Covid. Second, and more importantly, the 
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Government’s argument is sleight-of-hand. The test here is not inextricable intertwinement with a 
witness the Government seeks to call (likely for this very reason). To be admitted under the 
“inextricably intertwined” doctrine, the uncharged bad act has to “ar[i]se out of the same 
transaction or series of transactions as the charged offense . . . or be necessary to complete the 
story of the crime on trial.”6 Here, the Government did not even try meet the Eleventh Circuit 
standard. Nor could it. J.G.’s subjective rationale for changes in his employment are not by any 
stretch of the imagination “inextricably intertwined” with the charged crimes. More specifically, 
J.G. causing his name to be removed as manager on Sunbiz in March 2019 has absolutely nothing 
to do with this case. All the more so, J.G’s subjective rationale for wanting his name removed 
from Sunbiz in March 2019 supposedly because he blames Defendant for his supposed personal 
involvement in the prior act, which is what the Government seeks to offer, has zero relevance to 
whether Defendant committed the charged crimes. Finally, even if the Government met the 
inextricably intertwined standard, the Government still needs a witness who can testify from 
personal knowledge, and it does not have one.7   
 
6 U.S. v. Weeks, 716 F.2d 830, 832 (11th Cir. 1983) (quoted in the Response [DE 116 at 4]). The 
rest of the Government’s cases are in accord. See, e.g., United States v. Horner, 853 F.3d 1201, 
1213 (11th Cir. 2017) (evidence of money “structuring” "was inextricably intertwined with 
evidence of the fraudulent tax returns, because the cash deposits formed the basis of the tax fraud 
itself.”); United States v. Edouard, 485 F.3d 1324, 1344 (11th Cir. 2007) (evidence that defendant 
threatened to kill owner of company and employees if owner did not return deposit defendant made 
for purchase of rice was inextricably intertwined with evidence of the charged money laundering 
counts as it involved the same funds).  
7  The Government’s suggestion that “defendant’s letter to the attorney may be a preview of his 
defense in this case” is an invitation to go down a rabbit hole we should all decline.  [DE 116 at 
9]. There are many holes in the Government’s case (although the Government refuses to 
acknowledge them). On the five aggravated identify theft charges involving alleged forgeries, for 
example, while they list 23 witnesses, none can say Defendant forged the signatures, directed 
others to do so, even knew the signatures were allegedly forged. But all these holes in the 
Government’s case do not permit the Government to present unsupported uncharged accusations 
against Defendant or misrepresent the testimony of J.G. to this Court. 
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III. 
The Response Fails To Meet The Motion’s Substantial Prejudice Argument 
The Government does not address the extreme prejudice to the Defendant by these 
inflammatory allegations. The Government has not established that the proposed evidence is 
“highly probative” or even admissible. [DE 116 at 9]. The Government has put a lot of effort and 
made unusual and problematic moves to get these unsupported allegations to the jury, which will 
inflame the jury and distract them from the trial of this case. That speaks volumes about the 
Government’s true prejudicial purpose.8 
IV. 
The Response Fails to Meet the Motion’s Argument For A Hearing 
The Motion argued that due to the unusual circumstance of the Government being unable 
to prove the Rule 404(b) evidence, the Court should order an evidentiary hearing to ensure the 
Government can sustain its burden of proof before seeking to offer purported 404(b) evidence at 
trial. [DE 113]. The Response does not address this or deny that evidentiary hearings are warranted 
on challenges like this. [DE 116 at 10].9 
CONCLUSION 
For the reasons stated in the Motion and herein, Defendant respectfully requests that the 
allegations in the Notice and Response be excluded, or, in the alternative, requests a pre-trial 
evidentiary hearing, and for other relief the Court deems just and proper. 
 
 
 
 
8 As shown in the Motion, part of this probative/prejudice prong of the Rule 404(b) analysis 
includes prosecutorial need, and the Government offering none is a factor favoring exclusion. [DE 
113 at 4, 8]. In its Response, the Government argued that it has the burden on intent [DE 116 at 8-
9], but it did show that it has a need for the evidence. 
9 The Government did not respond to the Motion on the privilege issue. [DE 113 at 2 n. 2].  
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Dated: October 17, 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 17, 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 118   Entered on FLSD Docket 10/17/2023   Page 11 of 11

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