Omnibus Order on Defendants Motion to Dismiss and Motion to Strike — USA v. Sheppard (Dkt. 121, S.D. Fla.)

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U.S. District Court for the Southern District of Florida · No. 1:22-cr-20290-BB · Doc. 121 · 2023-10-31 · 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). 
_____________________________/ 
 
OMNIBUS ORDER ON DEFENDANT’S MOTION TO DISMISS AND MOTION  
TO STRIKE SURPLUSAGE FROM THE SUPERSEDING INDICTMENT 
 
THIS CAUSE is before the Court on Defendant Eric Dean Sheppard’s (“Defendant”) 
Motion to Dismiss, ECF No. [85] (“Motion to Dismiss”), and Motion to Strike Surplusage from 
the Superseding Indictment, ECF No. [115] (“Motion to Strike”). The Government filed a 
Response in opposition to the Motion to Dismiss, ECF No. [108], and Defendant filed a Reply, 
ECF No. [114]. The Government also filed a Response in opposition to the Motion to Strike, ECF 
No. [119], and Defendant filed a Reply, ECF No. [120]. The Court has reviewed the Motions, all 
supporting and opposing submissions, the record in this case, the applicable law, and is otherwise 
duly advised. For the reasons that follow, the Motion to Dismiss and the Motion to Strike are 
denied. 
I. BACKGROUND 
On June 29, 2022, the Government filed an Indictment as to Defendant charging six counts 
of Wire Fraud (18 U.S.C. § 1343). ECF No. [3]. On August 23, 2024, the Government filed a 
Superseding Indictment, dropping three of the Wire Fraud Counts and charging Defendant with 
six new Counts of Wire Fraud and five Counts of Aggravated Identity Theft (18 U.S.C. § 1028A), 
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for a total of eleven new charges. Compare ECF No. [3] at 4-7 with ECF No. [60] at 4-8. Section 
1028A provides in relevant part that “[w]hoever, during and in relation to any felony violation 
enumerated in subsection (c), knowingly transfers, possesses, or uses, without lawful authority, a 
means of identification of another person shall, in addition to the punishment provided for such 
felony, be sentenced to a term of imprisonment of 2 years.” 18 U.S.C. § 1028A(a)(1). In the 
Superseding Indictment, the Government alleges that Defendant engaged in a scheme and artifice 
to defraud among others the Small Business Administration (SBA), which administers the 
Paycheck Protection Program (PPP) and the Economic Injury Disaster Loan (EIDL) Program. See 
id. at 5. Defendant allegedly submitted false and fraudulent PPP and EIDL loan applications on 
behalf of three entities, Alafaya Trails, HMMD, and HM Four, and 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). The Superseding 
Indictment alleges that Defendant’s scheme to defraud was mediated through or facilitated by the 
entities and four accomplices, respectively. Id. at 3, 5-6.  
A. Defendant’s Motion to Dismiss 
On September 15, 2023, Defendant filed the Motion to Dismiss, raising three principal 
arguments. First, Counts 10-14 must be dismissed under Rule 12(b)(3)(B)1 because those Counts 
fail to plead a necessary element of Aggravated Identity Theft. Specifically, dismissal is warranted 
because the Supreme Court’s decision in Dubin v. United States, 599 U.S. 110 (2023) requires that 
an indictment that chargers Aggravated Identity Theft allege that a defendant’s misuse of another 
person’s means of identification be “at the crux” of what makes the underlying defense criminal, 
or that the means of identity specifically be the “key mover in the criminality[,]” and the 
 
1 Unless otherwise noted, all references to Rules are to the Federal Rules of Criminal Procedure. 
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Superseding Indictment fails to do so. ECF No. [85] at 7. Defendant submits as an example that 
Defendant’s alleged submission of a false lease agreement and a banker letter in support of HM 
Four’s EIDL loan application was ancillary because the crux of the wire fraud was Defendant’s 
alleged submission of false and fraudulent loan applications. Id. at 6-7.   
Second, Defendant contends that dismissal is warranted under Rule 12(b)(3)(A)(iv) for 
selective or vindictive prosecution because the Government has impermissibly done “more” than 
merely threatening during plea negotiations to reindict Defendant on more serious charges if he 
did not plead guilty to the offenses which were originally charged, namely by (1) deliberately 
choosing not to prosecute in the original Indictment the newer six counts of Wire Fraud, and the 
five counts of Aggravating Identity Theft, until after Defendant chose to go to trial; (2) failing to 
advise Defendant of its intent to prosecute those additional charges during plea negotiations, save 
for one of the additional counts of Wire Fraud; and (3) seeking forfeiture of Defendant’s $6 
million-dollar family home to secure $456,000.00 in loans that Defendant has been paying back. 
Id. at 7-9. 
Third, Defendant asserts that dismissal of the forfeiture charge is warranted because the 
Government seeks $893,145.00, representing the “total amount of funds constituting, or derived 
from, proceeds traceable to the alleged offenses and fraud scheme”, when the three loans in this 
action resulted in payment of only approximately $446,988.00. Id. at 8-9 (citing ECF No. [60] at 
7, 9). In addition, forfeiture of Defendant’s home is not warranted because Defendant closed his 
office and worked from home during the pandemic on a temporary basis. 
The Government first responds that Dubin v. United States requires that the Government 
prove that there be a “genuine nexus” “between the use of a means of identification and the 
predicate offense.” ECF No. [108] at 5 (quoting inter alia United States v. Gladden, 78 F.4th 1232, 
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1244 (11th Cir. 2023) (quoting Dubin, 599 U.S. at 117)). In its view, Dubin did not “change the 
magic words necessary to state [the] offense” of Aggravated Identity Theft because Congress, not 
the Judiciary, defines federal crimes. Id. For that reason, the Government submits that the practical 
consequence of Dubin is that the jury instructions must define what it means to “use[]” another 
person’s means of identification for the purposes of Aggravated Identity Theft, not that an 
indictment must allege facts showing that a defendant’s use of a victim’s identity was the crux of 
what makes the charged conduct criminal. Id. at 5-6.  
Second, the Government asserts that there is no causal relationship between Defendant’s 
decision not to plead guilty and the additional charges. Id. at 7. The Government represents it 
sought to add more charges simply because it obtained more evidence after the case was initially 
indicted. Id. at 7. In particular, the Government maintains that post-indictment interviews and 
investigation revealed that Defendant’s entities’ tax returns were falsified and forged and, 
furthermore, the documents submitted to support an EIDL application for HM Four were also 
falsified and forged. Id. As a result, the Government dropped three wire fraud charges involving 
some of the loans to focus the Superseding Indictment on the falsified and forged documents that 
are central to Defendant’s alleged scheme. Id. at 7-8. The Government submits the decision to add 
more charges is valid under Eleventh Circuit and Supreme Court precedent. Id. at 7. Moreover, 
the Government contends it is black letter law that adding more charges after a Defendant decides 
not to plead guilty does not demonstrate prosecutorial vindictiveness. Id. at 8.  
Alternatively, the Government contends that, even if Defendant were correct that the 
Government added new charges to persuade him to plead guilty and forego his right to trial, that 
fact alone does not amount to vindictiveness. The Government asserts that a prosecutor’s attempt 
to prevent a Defendant exercising a protected right is vindictive as violative of due process, but an 
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attempt to persuade a defendant to plead guilty and not go to trial is not vindictive because the 
refusal to plead guilty is not a protected right. Id. at 8-9. The Government further contends that 
Defendant’s lead case, United States v. Watson, 400 F. App’x 442 (11th Cir. 2020), does not 
support that the circumstances here constituted the “more” that Defendant claims is required to 
show vindictiveness. Id.  
Third, the Government responds that Defendant’s arguments to dismiss the forfeiture 
allegations are deficient and premature under Rule 32.2. Moreover, its allegations are more than 
sufficient under Rule 32.2(a), because the Government went “above and beyond” in providing the 
notice required and, in any event, it adequately specified in the Superseding Indictment the amount 
of money and specific property it sought. Id. at 9-10. 
Defendant first replies that the Government’s reading of Dubin is flawed in part because 
indictments and jury instructions would “consistently be at odds with one another, as is the case 
here[,]” and cause the jury to be misled if Dubin required only that jury instructions but not an 
indictment allege that the identity theft be at the crux of the underlying crime. ECF No. [114] at 2. 
Defendant also replies that the Government entirely ignored its argument that the forfeiture 
allegations state the wrong amount of funds constituting, or derived from, proceeds traceable to 
the alleged offenses and scheme.2  
 
2 Also, Defendant states the Government’s vindictiveness is shown by its purportedly inaccurate and 
misleading Notice of Intent to Introduce 404(b) Evidence, ECF Nos. [77], [113]. Id. at 2. Defendant further 
presents argument concerning Defendant’s home and whether SBA funds are traceable. Id. at 2-3. However, 
reply memoranda are “strictly limited to rebuttal of matters raised in the memorandum in opposition without 
reargument of matters covered in the movant’s initial memorandum of law.” S.D. Fla. L.R. 7.1(c)(1). 
Accordingly, the Court need not evaluate those arguments, particularly where Defendant has not presented 
authorities supporting the additional matters. See United States v. Williams, 29 F.4th 1306, 1314 (11th Cir. 
2022) (“Since issues must be raised in a party’s opening brief to be timely, Williams raising a voluntariness 
challenge under Hernandez in his reply brief does not excuse his forfeiture.” (citing Sapuppo v. Allstate 
Floridian Ins. Co., 739 F.3d 678, 680-81 (11th Cir. 2014)). 
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B. Motion to Strike Surplusage 
On October 5, 2023, Defendant filed his Motion to Strike wherein Defendant argues that 
specific allegations concerning loan applications are surplusage and irrelevant, inflammatory, and 
prejudicial. ECF No. [115] at 3. Defendant also argues the Superseding Indictment’s four 
references to Defendant’s accomplices are irrelevant, inflammatory, and unduly prejudicial 
because Defendant is not charged with a conspiracy and the accomplices are not charged. Id. at 4-
5. The Government disputes that the specific allegations are irrelevant, inflammatory, and unduly 
prejudicial. ECF No. [119] at 2-5. The Government further responds that Defendant need not be 
charged with conspiracy, nor must the Government charge accomplices to allege that Defendant’s 
alleged wire fraud scheme had accomplices. Id. at 5. The Court addresses the parties’ arguments 
in more detail below. 
II. LEGAL STANDARD 
A. Motion to Dismiss 
A motion to dismiss an indictment is governed by Federal Rule of Criminal Procedure 
12(b). A defendant may challenge an indictment on various grounds, including failure to state an 
offense, lack of jurisdiction, or constitutional reasons. See United States v. Kaley, 677 F.3d 1316, 
1325 (11th Cir. 2012). “Under Fed. R. Crim. P. 12(b) an indictment may be dismissed where there 
is an infirmity of law in the prosecution[.]” United States v. Torkington, 812 F.2d 1347, 1354 (11th 
Cir. 1987). However, on a motion to dismiss, the indictment the district court must not “pierce the 
pleadings or make a premature resolution of the merits of the allegations.” United States v. 
Cadillac Overall Supply Co., 568 F.2d 1078, 1082 (5th Cir. 1978).3 
 
3 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the court adopted as 
binding precedent all decisions of the Fifth Circuit issued prior to October 1, 1981. 
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Further, “[t]he sufficiency of a criminal indictment is determined from its face.” United 
States v. Critzer, 951 F.2d 306, 307 (11th Cir. 1992). Generally, “[t]he indictment is sufficient if 
it charges in the language of the statute.” Id. Moreover, “[c]onstitutional requirements are fulfilled 
‘by an indictment that tracks the wording of the statute, as long as the language sets forth the 
essential elements of the crime.’” Id. at 308; (citation omitted) see also United States v. Cole, 755 
F.2d 748, 760 (11th Cir. 1985). The indictment’s allegations are assumed to be true and are viewed 
in the light most favorable to the Government. See Torkington, 812 F.2d at 1354. 
B. Motion to Strike 
“Upon the defendant’s motion, the court may strike surplusage from the indictment or 
information.” Fed. R. Crim. P. 7. “A motion to strike surplusage from an indictment should not be 
granted ‘unless it is clear that the allegations are not relevant to the charge and are inflammatory 
and prejudicial. . . . [T]his is a most “exacting standard.”’” United States v. Awan, 966 F.2d 1415, 
1426 (11th Cir. 1992) (citing United States v. Huppert, 917 F.2d 507, 511 (11th Cir. 1990) (quoting 
1 Charles A. Wright, Federal Practice and Procedure § 127 at 424-29 (1982)). An allegation that 
does not affect a charge and need not be proved may be rejected as mere surplusage. United States 
v. Noveck, 271 U.S. 201, 203, 46 S. Ct. 476, 477, 70 L. Ed. 904 (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.” United States v. Northcutt, No. 07-60220-CR, 2008 WL 162753, at *6 (S.D. Fla. Jan. 
16, 2008) (citing United States v. Bullock, 451 F.2d 884, 888 (5th Cir. 1971)).  
III. 
DISCUSSION 
The Court first addresses Defendant’s Motion to Dismiss and proceeds to consider his 
Motion to Strike. 
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A. Motion to Dismiss 
Defendant raises three principal arguments in support of his Motion to Dismiss. The Court 
addresses each of these arguments in turn. 
i. 
The Crux of the Aggravated Identity Theft Offenses 
The Court begins with Dubin. There, the defendant was convicted of healthcare fraud and 
Aggravated Identity Theft under § 1028A(a)(1) for overbilling the Medicaid program—by 
inflating the value of the services provided to a patient by a psychological services company the 
defendant’s father managed. Dubin, 599 U.S. at 114-15. In doing so, the defendant included in his 
fraudulent billing the patient’s Medicaid reimbursement number, a means of identification. Id. at 
115. The Government asserted § 1028A(a)(1) was “automatically satisfied” on that fact. Id. The 
district court observed that the prosecution “[didn’t] seem to be an aggravated identity theft 
case[;]” instead, the district court explained that “the whole crux of [the] case [was] how [the 
defendant] was billing” but nevertheless denied the defendant’s post-trial challenge to the 
aggravated identity theft conviction, explaining that he was bound to follow Fifth Circuit precedent 
on the issue. Id. A divided panel of the Fifth Circuit affirmed the district court. Id. However, the 
Supreme Court reversed the Fifth Circuit, holding that the words “use” and “in relation to” in 
§ 1028A should not be construed so that the provision would “apply automatically any time a name 
or other means of identification happens to be part of the payment or billing method used in the 
commission of a long list of predicate offenses.” See Dubin, 599 U.S. at 117; Gladden, 78 F.4th at 
1244 (11th Cir. 2023) (quoting Dubin, 599 U.S. at 117). Rather, § 1028A applies where there is 
“a genuine nexus” between the use of a means of identification and a predicate offense. See Dubin, 
599 U.S. at 177; Gladden, 78 F.4th at 1244 (quoting Dubin, 599 U.S. at 117). A genuine nexus 
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requires that the means of identification be “a key mover in the criminality.” Dubin, 599 U.S. at 
122-23.  
Accordingly, Dubin stands for the proposition that § 1028A does not automatically apply 
merely where a means of identification is used in the commission of an underlying crime. 
However, the question here is whether the means of identification implicated in this case is a “key 
mover” in Defendant’s alleged criminality. Gladden is instructive on this point. In Gladden, the 
defendant forged prescriptions for former patients of the company that he was managing and had 
represented to pharmacy benefit managers and insurance companies that he was filling those 
prescriptions for the former patients when the drugs were being sent to the company’s owner, not 
the former patients. Gladden, 78 F.4th at 1245. In the Eleventh Circuit’s judgment, the defendant’s 
forgeries were “at the heart of the deception” in that case: the defendant used the identities of 
others to continue refilling prescriptions in their names, even though they were neither aware of 
nor received any drugs. Id. at 1238, 1245. Accordingly, the Eleventh Circuit distinguished those 
cases that fall under Dubin, where a person merely misrepresents the nature or character of a good 
or service delivered to another person to overbill for that good or service and happens to use the 
other person’s means of identification to further the misrepresentation, from those that do not fall 
under Dubin, where a person fabricates a means of identification of another without that other 
person’s knowledge or consent. In the latter case, a defendant can be said to have stolen a person’s 
identity, “the classic variety of identity theft left untouched by Dubin.” Id. at 1246. Gladden 
applied this distinction as follows: 
 [U]nlike in Dubin, [the defendant] did not provide a service to a client while merely 
misrepresenting how the service was performed to inflate the bill. Rather, [the 
defendant] used the means of identification of former patients and prescribing 
doctors to overbill for certain products. . . . Her use of [the former patients’] 
identifying information was itself fraudulent or deceptive because [the defendant] 
represented those patients were receiving the refills, despite shipping the product 
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to [the company owner]. And her use of [a prescribing doctor’s] means of 
identification was fraudulent because she falsely represented he had authorized the 
additional prescriptions for [a company sales representative]. 
Id.   
Here, the Superseding Indictment alleges that Defendant submitted PPP and EIDL 
applications that included falsified documents. ECF No. [60] at 6. Some of the falsified documents 
contained the names and forged signatures of others without their knowledge or consent. Id. Thus, 
the Superseding Indictment alleges that Defendant fabricated the means of identification of others 
without their knowledge and consent to obtain a personal benefit. Such fabrication amounts to 
identity theft and does not fall under Dubin. See Dubin, 599 U.S. at 1570 (“As the definitions 
reveal, identity theft covers both when ‘someone steals personal information about and belonging 
to another . . . and uses the information to deceive others[.]’” (quoting Black’s Law Dictionary 
(11th ed. 2019))). Because the parties agree that the Aggravated Identity Theft Counts track the 
statutory language, and because Defendant raises no Constitutional arguments against the language 
within those Counts,4 the Superseding Indictment sets forth the essential elements of Aggravated 
Identity Theft, and dismissal of the Superseding Indictment is not warranted.  
ii. 
Prosecutorial Vindictiveness 
The Court turns to United States v. Watson, Defendant’s lead case on the issue of 
prosecutorial vindictiveness. There, the Eleventh Circuit explained that where a presumption of 
vindictiveness does not apply, a defendant bears the burden of demonstrating actual vindictiveness. 
Watson, 400 F. App’x at 445 (citing United States v. Barner, 441 F.3d 1310, 1317, 1322 (11th Cir. 
 
4 See United States v. Harrell, 737 F.2d 971, 975 (11th Cir. 1984) (“an indictment will pass constitutional 
muster: if it, first, contains the elements of the offense charged and fairly informs a defendant of the charge 
against which he must defend[.]”). 
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2006)).5 Watson further instructed that “a prosecutor does not violate a defendant’s constitutional 
rights merely by obtaining a superseding indictment after the defendant has rejected a plea offer.” 
Id. (citing Bordenkircher v. Hayes, 434 U.S. 357, 363-65 (1978)). Watson found that the district 
court in that case did not abuse its discretion in denying the defendant’s motion to dismiss a 
superseding indictment. Id. As set forth above, Defendant contends there exists prosecutorial 
vindictiveness because the Government (1) originally chose not to prosecute the charges that first 
appeared in the Superseding Indictment until after Defendant rejected a plea offer; (2) failed 
substantially to warn Defendant of those additional charges; and because (3) seeks forfeiture of 
Defendant’s family home. However, even accepting Defendant’s version of the plea negotiations 
in this case, Watson does not indicate that any of these bases support a finding of “actual 
vindictiveness[.]” Moreover, the discussion in Watson indicates that the prosecutorial 
vindictiveness inquiry turns on whether the prosecutor seeks to violate a defendant’s constitutional 
rights, but no violation has occurred here. While it is plainly a due process violation for a 
prosecutor to “pursue a course of action whose objective is to penalize a person’s reliance on his 
legal rights,” the filing of charges on which a defendant is “plainly subject to prosecution” is not 
violative of the Due Process Clause of the Fourteenth Amendment. See Bordenkircher, 434 U.S. 
at 363-65 (“In our system, so long as the prosecutor has probable cause to believe that the accused 
committed an offense defined by statute, the decision whether or not to prosecute, and what charge 
to file or bring before a grand jury, generally rests entirely in his discretion.”). For that reason, a 
prosecutor’s filing of a superseding indictment after a defendant rejects a plea offer is not a 
 
5 The Eleventh Circuit has observed that “[a] prosecutor’s decision to seek heightened charges after a 
defendant successfully appeals his conviction for the same conduct is presumed to be vindictive.” Barner, 
441 F.3d at 1315-16. That presumption does not apply here given the procedural posture of the case, and 
Defendant has not pointed to other circumstances that give rise to a presumption of prosecutorial 
vindictiveness.  
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violation of that defendant’s constitutional right to a jury trial. Defendant thus fails to carry his 
burden to show actual vindictiveness. 
iii. 
Forfeiture 
Rule 32.2(a) expressly provides in relevant part that an “indictment or information need 
not identify the property subject to forfeiture or specify the amount of any forfeiture money 
judgment that the government seeks.” Fed. R. Crim. P. 32.2(a). As such, Defendant’s arguments 
concerning the incongruity between the loan amounts in this case and the amount sought for 
forfeiture, and the fact that Defendant has sought to pay down the loans, are misplaced, particularly 
since Rule 32.2(a) concerns “Notice to the Defendant.” Id. Absent any supporting legal authorities 
that establish that the Superseding Indictment’s forfeiture allegations warrant dismissal on the 
grounds Defendant advances, the Court is not persuaded by Defendant’s cursory arguments.  
B. Motion to Strike 
Defendant seeks the striking of six sets of allegations in the Superseding Indictment. The 
Court addresses each set of allegations in turn. 
i. 
Page 2, Paragraph 3 
Page 2, paragraph 3 of the Superseding indictment states: 
Businesses could apply for PPP loans by submitting a PPP loan application (SBA 
Form 2483). The PPP loan application required that these businesses acknowledge, 
through authorized representatives, the program rules and make certain affirmative 
certifications to be eligible to obtain the PPP loan. In the PPP loan application, these 
businesses, through authorized representatives, had to state their: (a) average 
monthly payroll expenses, and (b) number of employees. 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. The employers' payroll 
expenses were used to calculate the amount of money the applicant businesses were 
eligible to receive under the PPP. In addition, these businesses had to provide 
documentation evidencing their payroll expenses; typically, businesses would 
supply documents showing the amount of payroll taxes reported to the IRS. 
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ECF No. [60] at 2 (emphasis added). Defendant argues that what businesses “typically” would 
supply is irrelevant because it is not an element of the charged offense and would confuse the jury 
because the allegation would lead the jury to believe that Defendant did not do what a business 
“typically” does under the circumstances and would place the onus on Defendant to “explain this 
away.” ECF No. [115] at 3. The Government responds that the paragraph is “meant to illustrate 
the types of documents that businesses provided and that lenders requested” under the PPP. ECF 
No. [119] at 3. Moreover, the Government responds that Defendant supplied “the very same type 
of documents identified in that sentence, which purportedly showed the amount of payroll taxes 
reported to the IRS.” Id. at 3. 
As preliminary matter, the Court disagrees with Defendant to the extent he argues that an 
allegation in an indictment is surplusage simply because the allegation need not be proved as an 
element of the offense. An allegation is “mere surplusage” where it “does not affect the charge” 
and “need not be proved.” Noveck, 271 U.S. at 203. What businesses “typically” provide to 
evidence payroll expenses as part of a PPP loan application may not be an element of the charged 
offense, but it is relevant to show that the evidence that PPP loan applications required of 
applicants. It is the Government’s contention that the evidence Defendant provided to the SBA 
was falsified, which is relevant at least to the wire fraud charges in this case. As such, the sentence 
is not mere surplusage. Nor is it unduly prejudicial given the Government’s representation that 
Defendant supplied the type of documentation that businesses “typically” supply. Defendant has 
not met the exacting standard set forth by the Eleventh Circuit in United States v. Awan, 966 F.2d 
1415 (11th Cir. 1992) for the Court to strike the paragraph.  
ii. 
Page 2, Paragraph 4 
Page 2, paragraph 4 of the Superseding indictment states: 
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A PPP loan application had to be processed by a participating lender or the 
participating lender's delegee. If a PPP loan application was approved, the lender 
funded the PPP loan using its own monies, which were fully guaranteed by the 
SBA. Data from the application, including information about the borrower, the total 
amount of the loan, and the reports and documentation regarding the business's 
income and expenses, were transmitted by the lender to the SBA in the course of 
processing the loan. 
ECF No. [60] at 2. Defendant argues “what the loan process was supposed to be” is completely 
irrelevant to the charged offenses. ECF No. [115] at 3. The Government responds that the 
paragraph is relevant to the wire fraud charges involving the PPP loans. ECF No. [119] at 3-4. The 
Court agrees with the Government. The information in the paragraphs connects Defendant’s 
alleged use of interstate wire communications with the alleged purpose of the scheme, which was 
allegedly to divert proceeds from the SBA for Defendant’s personal use. ECF No. [60] at 5. The 
paragraph is therefore not mere surplusage.  
iii. 
Page 2, Paragraph 5 
Page 2, paragraph 5 of the Superseding Indictment states: 
PPP loan proceeds were required to be used by the business on certain permissible 
expenses- employee payroll costs, interest on mortgages, rent, and utilities. The 
PPP allowed the interest and principal on the PPP loan to be entirely forgiven if the 
business spent the loan proceeds on these expense items within a designated period 
of time and used a defined portion of the PPP loan proceeds on payroll expenses. 
ECF No. [60] at 2. Defendant contends that paragraph will only “seek to confuse the jury” because 
Defendant did not seek loan forgiveness on the charged loans. ECF No. [115] at 3. The 
Government responds that it seeks to prove a scheme by Defendant to defraud the SBA and private 
lenders, and that the supporting evidence includes a PPP loan application that Defendant submitted 
on behalf of Alafaya Trails, for which Defendant later sought and obtained forgiveness. ECF No. 
[119] at 4.  
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Evidence that supports the truth of the allegations in the paragraph would be relevant to 
show the manner and means by which Defendant’s allegedly sought to enrich himself and others. 
ECF No. [60] at 5. The paragraph is relevant to prove the scheme and is not mere surplusage. 
iv. 
Page 3, Paragraph 7 
Page 3, paragraph 7 of the Superseding Indictment states: 
The CARES Act authorized the SBA to provide EIDLs to eligible small businesses 
experiencing substantial financial disruptions due to the COVID-19 pandemic. In 
order to obtain a COVID-19 EIDL, a qualifying business was required to submit an 
EIDL application to the SBA and provide information about its operations, such as 
the number of employees and gross revenues and cost of goods sold for the 12-
month period preceding January 31, 2020. The applicant was also required to 
certify that the information in the application was true and correct to the best of the 
applicant's knowledge. 
ECF No. [60] at 3 (emphasis added). Defendant contends the Government is cherry picking certain 
requirements of the EIDLs and that this cherry picking is inflammatory and unduly prejudicial. 
ECF No. [115] at 4. The Government responds that the information in this paragraph sets forth 
basic requirements for an EIDL application. ECF No. [119] at 4. Because the listed requirements 
are pertinent to EIDL applications, and Defendant is charged for wire fraud in connection with the 
EIDL program, the information in that paragraph is relevant to prove the alleged scheme to defraud 
the SBA and others, and nothing about those requirements is prejudicial or inflammatory. The 
paragraph is not mere surplusage. 
v. 
Page 3, Paragraph 8 
Page 3, paragraph 8 of the Superseding Indictment states: 
EIDL applications were submitted directly to the SBA, 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 cost of goods sold. The SBA issued any funds under an EIDL directly to the 
applicant. 
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ECF No. [60] at 3 (emphasis added). Defendant contends the information is not required to prove 
the charges, is prejudicial and inflammatory because the information described in the paragraph 
“is not known by the applicant[,]” and that there were other variables that informed the SBA’s 
determination for the approval of an application. ECF No. [115] at 4. The Government responds 
that it will seek to prove the EIDL application requirements and how the loan amount is 
determined. ECF No. [119]. The information on how the SBA approves an EIDL loan is relevant 
to show that Defendant’s EIDL loan applications were fraudulent, which is further relevant to 
certain wire fraud and aggravated identity theft charges. See, e.g., ECF No. [60] at 7-8 (describing 
wire transfers related to, and the use of means of identification for, two EIDL loan applications). 
That information is thus relevant and not inflammatory or unduly prejudicial. The paragraph is not 
mere surplusage. 
vi. 
Accomplices 
Defendant states the Superseding Indictment refers to Defendant’s alleged accomplices 
four times. ECF No. [115] at 4-5. Defendant submits those references are irrelevant because 
Defendant is not charged with conspiracy and the Government did not charge alleged accomplices. 
Id. The Government responds that Defendant neither has to be charged in a conspiracy, nor does 
the Government need to charge others in this case, to allege that the Defendant’s wire fraud scheme 
had accomplices. ECF No. [119] at 5. The Government represents that the subject of three wire 
fraud counts in the Superseding Indictment is an EIDL loan on behalf of HM Four. Id. The 
Government also avers that Defendant’s wife, who is not charged in this case, was the applicant 
and signer on the loan application for that loan. Id. As such, the Government asserts it has a factual 
basis for the references to accomplices in the Superseding Indictment. Id. Defendant replies that 
the Government’s Response makes plain the allegations concerning accomplices relate only to 
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three out of the nine counts of wire fraud and yet the allegations concern all nine counts of wire 
fraud. ECF No. [120] at 1-2 (citing ECF No. [60] at 4-7). Defendant contends that the allegations 
are irrelevant to six of the counts of wire fraud and on that basis are inflammatory because the 
allegations will “give the impression to the jury that there were accomplices in Defendant’s alleged 
scheme, but the jury will not hear anything about them.” Id. at 2. 
The Superseding Indictment alleges the purpose of the alleged scheme, which was for 
Defendant and his accomplices to enrich themselves. ECF No. [60] at 5, 6. The Superseding 
indictment also alleges that manner and means by which Defendant and his accomplices sought to 
accomplish the scheme’s purpose, which include submitting or causing to be submitted false and 
fraudulent PPP loan and EIDL applications via interstate wire communications. Id. at 5. Moreover, 
the Superseding Indictment alleges nine specific instances of wire fraud. Defendant appears to 
conflate the specific instances of wire fraud with both the purpose and the manner and means of 
the scheme to commit wire fraud alleged. The latter is relevant to the former; since the involvement 
of accomplices is relevant to the purpose and manner and means of the scheme, it is necessarily 
relevant to the specific uses of the wires alleged. Defendant provides no basis in law or fact 
requiring that any reference to accomplices be cabined to each count for which there was alleged 
involvement by those accomplices. As such, Defendant has not shown that the references to 
accomplices are irrelevant.  
Moreover, even if the references to accomplices are irrelevant to six of the wire fraud 
counts, Defendant must also show that the references are inflammatory. Defendant is unable to do 
so: to the extent the evidence may show accomplices were involved with some of the wire fraud 
counts, the Government can show that the accomplices were involved in a fraudulent scheme. 
Under those circumstances, the jury may validly form the impression that the alleged scheme was 
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facilitated by accomplices, even if the accomplices were not involved with every instance of wire 
fraud. As such, Defendant has not met the exacting standard for the Court to strike the paragraph. 
IV. 
CONCLUSION 
Accordingly, it is ORDERED AND ADJUDGED as follows: 
1. The Motion to Dismiss, ECF No. [85], is DENIED. 
2. The Motion to Strike, ECF No. [115], is DENIED. 
DONE AND ORDERED in Chambers at Miami, Florida, on October 31, 2023. 
 
 
 
 
_________________________________ 
BETH BLOOM 
UNITED STATES DISTRICT JUDGE 
Copies to: Counsel of Record 
 
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