Court filing
Proposed Jury Instructions by USA as to Eric Dean Sheppard — USA v. SHEPPARD (Dkt. 136)
Record facts
| Court | U.S. District Court for the Southern District of Florida |
|---|---|
| Filed | 2023-11-24 |
U.S. District Court for the Southern District of Florida · No. 1:22-cr-20290-BB · Doc. 136 · 2023-11-24 · Docket on CourtListener
Summary
The United States' Amended Proposed Jury Instructions in United States v. Eric Dean Sheppard, Case No. 22-20290-CR-BLOOM(s), in the U.S. District Court for the Southern District of Florida, filed November 24, 2023 as Document 136. Submitted under Rule 30(a) of the Federal Rules of Criminal Procedure, the filing proposes instructions on the presumption of innocence, reasonable doubt, witness credibility and expert witnesses. It states that the Superseding Indictment charges wire fraud in Counts 1 through 9 and aggravated identity theft in Counts 10 through 14, and sets out elements instructions under 18 U.S.C. § 1343 and 18 U.S.C. § 1028A(a)(1). It also proposes an aiding-and-abetting instruction under 18 U.S.C. § 2. The 23-page filing ends with a proposed verdict form covering all 14 counts.
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Full text
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’ AMENDED PROPOSED JURY INSTRUCTIONS
Pursuant to Rule 30(a) of the Federal Rules of Criminal Procedure, the United States of
America respectfully submits the following proposed jury instructions and requests that they be
given at the trial in the above-captioned case. Also attached is a proposed verdict form. The
United States respectfully requests that it be permitted to propose additional instructions should
they become appropriate based on the trial testimony and evidence. Pursuant to Rule 30(b) of the
Federal Rules of Criminal Procedure, the United States requests that it be informed prior to closing
arguments which instructions the Court will accept and which it will reject.
Respectfully Submitted,
MARKENZY LAPOINTE
UNITED STATES ATTORNEY
By: /s/ Aimee C. Jimenez
Aimee C. Jimenez
Court No. A5500795
Assistant United States Attorney
99 Northeast 4th Street
Miami, Florida 33132-2111
Tel: (305) 961-9028
Fax: (305) 530-7976
Email: Aimee.Jimenez@usdoj.gov
Case 1:22-cr-20290-BB Document 136 Entered on FLSD Docket 11/24/2023 Page 1 of 23
CERTIFICATE OF SERVICE
I HEREBY CERT]IFY that on November 24, 2023, the undersigned Assistant United
States Attorney electronically filed the foregoing document with the Clerk of the Court using
CM/ECF. A copy of the United States’ Amended Proposed Jury Instructions were also submitted
to the Court via electronic mail on November 24, 2023.
/s/ Aimee C. Jimenez
AIMEE C. JIMENEZ
Assistant United States Attorney
Case 1:22-cr-20290-BB Document 136 Entered on FLSD Docket 11/24/2023 Page 2 of 23
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 22-20290-CR-BLOOM(s)
UNITED STATES OF AMERICA
vs.
ERIC DEAN SHEPPARD,
Defendant.
_____________________________________/
JURY INSTRUCTIONS
Members of the Jury:
It’s my duty to instruct you on the rules of law that you must use in deciding this case.
After I’ve completed these instructions, you will go to the jury room and begin your discussions –
what we call your deliberations.
You must decide whether the Government has proved the specific facts necessary to find
each Defendant guilty beyond a reasonable doubt.
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B2.2
The Duty to Follow Instructions and the Presumption Of Innocence
Your decision must be based only on the evidence presented during the trial. You must not
be influenced in any way by either sympathy for or prejudice against the Defendant or the
Government.
You must follow the law as I explain it – even if you do not agree with the law – and you
must follow all of my instructions as a whole. You must not single out or disregard any of the
Court's instructions on the law.
The indictment or formal charge against a Defendant isn’t evidence of guilt. The law
presumes every Defendant is innocent. The Defendant does not have to prove his innocence or
produce any evidence at all. The Government must prove guilt beyond a reasonable doubt. If it
fails to do so, you must find the Defendant not guilty.
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B3
Definition of “Reasonable Doubt”
The Government's burden of proof is heavy, but it doesn’t have to prove a Defendant’s
guilt beyond all possible doubt. The Government's proof only has to exclude any “reasonable
doubt” concerning the Defendant's guilt.
A “reasonable doubt” is a real doubt, based on your reason and common sense after you’ve
carefully and impartially considered all the evidence in the case.
“Proof beyond a reasonable doubt” is proof so convincing that you would be willing to rely
and act on it without hesitation in the most important of your own affairs. If you are convinced
that the Defendant has been proved guilty beyond a reasonable doubt, say so. If you are not
convinced, say so.
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B4
Consideration of Direct and Circumstantial Evidence;
Argument of Counsel; Comments by the Court
As I said before, you must consider only the evidence that I have admitted in the case.
Evidence includes the testimony of witnesses and the exhibits admitted. But, anything the lawyers
say is not evidence and isn’t binding on you.
You shouldn’t assume from anything I’ve said that I have any opinion about any factual
issue in this case. Except for my instructions to you on the law, you should disregard anything I
may have said during the trial in arriving at your own decision about the facts.
Your own recollection and interpretation of the evidence is what matters.
In considering the evidence you may use reasoning and common sense to make deductions
and reach conclusions. You shouldn’t be concerned about whether the evidence is direct or
circumstantial.
“Direct evidence” is the testimony of a person who asserts that he or she has actual
knowledge of a fact, such as an eyewitness.
“Circumstantial evidence” is proof of a chain of facts and circumstances that tend to
prove or disprove a fact. There’s no legal difference in the weight you may give to either direct
or circumstantial evidence.
Case 1:22-cr-20290-BB Document 136 Entered on FLSD Docket 11/24/2023 Page 6 of 23
B5
Credibility of Witnesses
When I say you must consider all the evidence, I don’t mean that you must accept all the
evidence as true or accurate. You should decide whether you believe what each witness had to say,
and how important that testimony was. In making that decision you may believe or disbelieve any
witness, in whole or in part. The number of witnesses testifying concerning a particular point
doesn’t necessarily matter.
To decide whether you believe any witness I suggest that you ask yourself a few questions:
•
Did the witness impress you as one who was telling the truth?
•
Did the witness have any particular reason not to tell the truth?
•
Did the witness have a personal interest in the outcome of the case?
•
Did the witness seem to have a good memory?
•
Did the witness have the opportunity and ability to accurately observe the
things he or she testified about?
•
Did the witness appear to understand the questions clearly and answer them
directly?
•
Did the witness's testimony differ from other testimony or other evidence?
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B6.3
Impeachment of Witnesses Because of Inconsistent Statements
(Defendant with no Felony Conviction Testifies)
You should also ask yourself whether there was evidence that a witness testified falsely
about an important fact. And ask whether there was evidence that at some other time a witness
said or did something, or didn’t say or do something, that was different from the testimony the
witness gave during this trial.
But keep in mind that a simple mistake doesn’t mean a witness wasn’t telling the truth as
he or she remembers it. People naturally tend to forget some things or remember them inaccurately.
So, if a witness misstated something, you must decide whether it was because of an innocent lapse
in memory or an intentional deception. The significance of your decision may depend on whether
the misstatement is about an important fact or about an unimportant detail.
[A defendant has a right not to testify. But since the Defendant did testify, you should
decide whether you believe the Defendant’s testimony in the same way as that of any other
witness.]
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B7
Expert Witnesses
When scientific, technical or other specialized knowledge might be helpful, a person who
has special training or experience in that field is allowed to state an opinion about the matter.
But that doesn=t mean you must accept the witness=s opinion. As with any other witness=s
testimony, you must decide for yourself whether to rely upon the opinion.
Case 1:22-cr-20290-BB Document 136 Entered on FLSD Docket 11/24/2023 Page 9 of 23
B8
Introduction to Offense Instructions
The Superseding Indictment charges 14 separate crimes, called “counts,” against the
Defendant, Eric Dean Sheppard. Each count has a number. You’ll be given a copy of the
Superseding Indictment to refer to during your deliberations.
Counts 1 through 14 charge that the Defendant committed what are called “substantive
offenses.” Specifically, in Counts 1 through 9, the Defendant is charged with wire fraud. In
Counts 10 through 14, the Defendant is charged with aggravated identity theft.
I will explain the law governing those substantive offenses in a moment.
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B8.1
Conjunctively Charged Counts
Where a statute specifies multiple alternative ways in which an offense may be committed,
the Superseding Indictment may allege the multiple ways in the conjunctive, that is, by using the
word “and.” If only one of the alternatives is proved beyond a reasonable doubt, that is sufficient
for conviction, so long as you agree unanimously as to that alternative.
Case 1:22-cr-20290-BB Document 136 Entered on FLSD Docket 11/24/2023 Page 11 of 23
051
Wire Fraud
18 U.S.C. § 1343
It’s a Federal crime to use interstate wire communications to carry out a scheme to defraud
someone else.
The Defendant can be found guilty of this crime only if all the following facts are proved
beyond a reasonable doubt:
(1)
the Defendant knowingly devised or participated in a scheme to defraud, or to
obtain money or property by using false pretenses, representations, or promises;
(2)
the false pretenses, representations, or promises were about a material fact;
(3)
the Defendant acted with the intent to defraud;
and
(4)
the Defendant transmitted or caused to be transmitted by some wire communication
in interstate commerce to help carry out the scheme to defraud;
The term “scheme to defraud” includes any plan or course of action intended to deceive or
cheat someone out of money or property by using false or fraudulent pretenses, representations, or
promises.
A statement or representation is “false” or “fraudulent” if it is about a material fact that the
speaker knows is untrue or makes with reckless indifference to the truth, and makes with the intent
to defraud. A statement or representation may be “false” or “fraudulent” when it is a half truth, or
effectively conceals a material fact, and is made with the intent to defraud.
A “material fact” is an important fact that a reasonable person would use to decide whether
to do or not do something. A fact is “material” if it has the capacity or natural tendency to influence
a person’s decision. It doesn’t matter whether the decision-maker actually relied on the statement
or knew or should have known that the statement was false.
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To act with “intent to defraud” means to do something with the specific intent to
deceive or cheat someone, usually for personal financial gain or to cause financial loss to someone
else.
The Government does not have to prove all the details alleged in the Superseding
Indictment about the precise nature and purpose of the scheme. It also doesn’t have to prove that
the material transmitted by interstate wire was itself false or fraudulent; or that use of the wires
was intended as the specific or exclusive means of carrying out the alleged fraud; or that the
Defendant personally made the transmission over the wire. And it doesn’t have to prove that the
alleged scheme actually succeeded in defrauding anyone.
To “use” interstate wire communications is to act so that something would normally be
sent through wire communications in the normal course of business.
Each separate use of the interstate wire communications as part of the scheme to defraud
is a separate crime.
Case 1:22-cr-20290-BB Document 136 Entered on FLSD Docket 11/24/2023 Page 13 of 23
40.3
Aggravated Identity Theft
18 U.S.C. § 1028A(a)(1)
The law provides for an enhanced penalty when anyone commits aggravated identity theft
during and in relation to other certain specified felony offenses.
The Defendant can be found guilty of that offense only if all the following facts are
proved beyond a reasonable doubt:
(1) the Defendant knowingly transferred, possessed, or used another person’s means of
identification;
(2) without lawful authority;
(3) during and in relation to wire fraud, as charged in Counts 2, 3, 6, 8 and 9 of the
Superseding Indictment.
The Government must prove that the Defendant knowingly transferred, possessed, or used
another person’s identity “without lawful authority.” The Government does not have to prove that
the Defendant stole the means of identification, only that there was no legal authority for the
Defendant to transfer, possess, or use them.
The Government must prove that the Defendant knew that the identification, in fact,
belonged to another actual person, not a fictitious person.
There must be a genuine nexus between the “use” of a means of identification and the
predicate offense [wire fraud]. United States v. Gladden, 78 F.4th 1232, 1244 (11th Cir. 2023)
(interpreting Dubin v. United States, 599 U.S. 110, 117 (2023)). A genuine nexus requires that
the means of identification be “a key mover in the criminality.” Dubin, 599 U.S. at 122-23.
Because the predicate offense is wire fraud, the Defendant must have used the means of
identification of another person to deceive others. See Dubin, 599 U.S. at 125-26.
Case 1:22-cr-20290-BB Document 136 Entered on FLSD Docket 11/24/2023 Page 14 of 23
S7
Aiding and Abetting; Agency
18 U.S.C. § 2
It’s possible to prove the Defendant(s) guilty of a crime even without evidence that the
Defendant(s) personally performed every act charged.
Ordinarily, any act a person can do may be done by directing another person, or “agent.”
Or it may be done by acting with or under the direction of others.
A Defendant “aids and abets” a person if the Defendant intentionally joins with the person
to commit a crime.
A Defendant is criminally responsible for the acts of another person if the Defendant aids
and abets the other person. A Defendant is also responsible if the Defendant willfully directs or
authorizes the acts of an agent, employee, or other associate.
But finding that a Defendant is criminally responsible for the acts of another person
requires proof that the Defendant intentionally associated with or participated in the crime – not
just proof that the Defendant was simply present at the scene of a crime or knew about it.
In other words, you must find beyond a reasonable doubt that the Defendant was a willful
participant and not merely a knowing spectator.
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B9.2
On or About a Particular Date; Knowingly
You’ll see that the Superseding Indictment charges that a crime was committed “on or
about” a certain date. The Government doesn’t have to prove that the crime occurred on an exact
date. The Government only has to prove beyond a reasonable doubt that the crime was committed
on a date reasonably close to the date alleged.
The word “knowingly” means that an act was done voluntarily and intentionally and not
because of a mistake or by accident.
Case 1:22-cr-20290-BB Document 136 Entered on FLSD Docket 11/24/2023 Page 16 of 23
Summaries and Summary Testimony1
There has been summary testimony from a witness at this trial and the Court permitted this
testimony in order to aid you in considering the evidence. Therefore, you are to give no greater
consideration to summary testimony than you would give to the evidence upon which that
testimony is based.
It is for you to decide whether the summary testimony or chart offered by a witness
correctly presented the information contained in the documents on which they were based, and
what weight to give such evidence.
1 United States v. Johnson, 319 U.S. 503, 519 (1943); United States v. Spaulding, 293 U.S. 498,
506 (1935); United States v. Richardson, 233 F.3d 1285, 1293-94 (11th Cir. 2000).
Case 1:22-cr-20290-BB Document 136 Entered on FLSD Docket 11/24/2023 Page 17 of 23
B10.4
Caution: Punishment
(Multiple Counts)
Each count of the Superseding Indictment charges a separate crime against the Defendant.
You must consider each crime and the evidence relating to it separately. If you find a Defendant
guilty of one crime, that must not affect your verdict for any other crime charged.
I caution you that the Defendant is on trial only for the specific crimes charged in the
Superseding Indictment. You’re here to determine from the evidence in this case whether the
Defendant is guilty or not guilty of those specific crimes.
You must never consider punishment in any way to decide whether a Defendant is guilty.
If you find a Defendant guilty, the punishment is for the Judge alone to decide later.
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S5
Note-taking
You’ve been permitted to take notes during the trial. Most of you – perhaps all of you –
have taken advantage of that opportunity.
You must use your notes only as a memory aid during deliberations. You must not give
your notes priority over your independent recollection of the evidence. And you must not allow
yourself to be unduly influenced by the notes of other jurors.
I emphasize that notes are not entitled to any greater weight than your memories or
impressions about the testimony.
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B11
Duty to Deliberate
Your verdict, whether guilty or not guilty, must be unanimous – in other words, you must
all agree. Your deliberations are secret, and you’ll never have to explain your verdict to anyone.
Each of you must decide the case for yourself, but only after fully considering the evidence
with the other jurors. So you must discuss the case with one another and try to reach an agreement.
While you’re discussing the case, don’t hesitate to reexamine your own opinion and change your
mind if you become convinced that you were wrong. But don’t give up your honest beliefs just
because others think differently or because you simply want to get the case over with.
Remember that, in a very real way, you’re judges – judges of the facts. Your only interest
is to seek the truth from the evidence in the case.
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B12
Verdict
When you get to the jury room, choose one of your members to act as foreperson. The
foreperson will direct your deliberations and will speak for you in court.
A verdict form has been prepared for your convenience.
[Explain verdict]
Take the verdict form with you to the jury room. When you’ve all agreed on the verdict,
your foreperson must fill in the form, sign it, date it, and carry it. Then you’ll return it to the
courtroom.
If you wish to communicate with me at any time, please write down your message or
question and give it to the marshal. The marshal will bring it to me and I’ll respond as promptly
as possible – either in writing or by talking to you in the courtroom. But I caution you not to tell
me how many jurors have voted one way or the other at that time.
Case 1:22-cr-20290-BB Document 136 Entered on FLSD Docket 11/24/2023 Page 21 of 23
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 22-20290-CR-BLOOM(s)
UNITED STATES OF AMERICA
vs.
ERIC DEAN SHEPPARD,
Defendant.
_____________________________________/
VERDICT FORM
We, the Jury, unanimously find the Defendant, ERIC DEAN SHEPPARD:
As to Count 1 of the Superseding Indictment:
GUILTY _____
NOT GUILTY _____
As to Count 2 of the Superseding Indictment:
GUILTY _____
NOT GUILTY _____
As to Count 3 of the Superseding Indictment:
GUILTY _____
NOT GUILTY _____
As to Count 4 of the Superseding Indictment:
GUILTY _____
NOT GUILTY _____
As to Count 5 of the Superseding Indictment:
GUILTY _____
NOT GUILTY _____
As to Count 6 of the Superseding Indictment:
GUILTY _____
NOT GUILTY _____
Case 1:22-cr-20290-BB Document 136 Entered on FLSD Docket 11/24/2023 Page 22 of 23
As to Count 7 of the Superseding Indictment:
GUILTY _____
NOT GUILTY _____
As to Count 8 of the Superseding Indictment:
GUILTY _____
NOT GUILTY _____
As to Count 9 of the Superseding Indictment:
GUILTY _____
NOT GUILTY _____
As to Count 10 of the Superseding Indictment:
GUILTY _____
NOT GUILTY _____
As to Count11 of the Superseding Indictment:
GUILTY _____
NOT GUILTY _____
As to Count 12 of the Superseding Indictment:
GUILTY _____
NOT GUILTY _____
As to Count 13 of the Superseding Indictment:
GUILTY _____
NOT GUILTY _____
As to Count14 of the Superseding Indictment:
GUILTY _____
NOT GUILTY _____
SO SAY WE ALL
__________________________________
Foreperson (please sign)
Dated: _________________
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