Reply to Response to Motion by Eric Dean Sheppard re 162 Motion for Acquittal — USA v. Sheppard (Dkt. 166, S.D. Fla.)

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U.S. District Court for the Southern District of Florida · No. 1:22-cr-20290-BB · Doc. 166 · 2023-12-26 · Docket on CourtListener

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UNITED STATES DISTRICT COURT 
SOUTHERN DISTRICT OF FORIDA 
CASE No. 22-20290-CR-BLOOM/OTAZO-REYES 
 
UNITES STATES OF AMERICA, 
 
Plaintiff,  
v.  
ERIC DEAN SHEPPARD, 
 
Defendant. 
____________________________________/ 
DEFENDANT’S REPLY IN SUPPORT OF RULE 29  
MOTION FOR JUDGMENT OF ACQUITTAL  
 
The Defendant Eric Dean Sheppard submits this Reply in support of his Rule 29 Motion 
for Judgment of Acquittal, pursuant to Fed. R. Crim. P. 29, and states:  
I. 
The Government Failed to Provide Evidence of Aggravated Identity Theft as Defined 
by Dubin v. United States. 
 
The Government cannot meet its burden under Dubin v. United States, 599 U.S. 110 (2023) 
so it acts like the Supreme Court case does not exist. Like in Dubin, the Government here would 
like this Court to have a “boundless interpretation” of Aggravated Identity Theft (“AIT”), which 
carries a mandatory 2-year prison sentence. Id. at 114. The Government’s broad position, which 
the Supreme Court expressly and firmly rejected, was that any misuse of identification that is 
somehow related to the underlying office is sufficient. The Supreme Court put an end to the 
Government’s abuse of the AIT statute, as recognized in United States v. Gladden, 78 F.4th 1232, 
1245 (11th Cir. 2023), by holding that §1028A applies where the means of identification is “a key 
mover in the criminality,” requiring even greater than a direct causal connection between the 
identity theft and the underlying felony. Dubin, 599 U.S. at 177, 122-23. 
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B. 
Count 11:  The Alleged Falsified Bank Letter for the HM Four EIDL Loan. 
1. 
There is No Evidence of Identity Theft. 
After the Rule 29 Motion was filed, Mr. Barrios (whose identity the Government alleges 
was forged on the Bank Letter) testified. Contrary to the Government’s assertions, Mr. Barrios did 
not testify that his signature was forged, or that he did not sign the Bank Letter.1 The Government 
provided no cites to the record showing Mr. Barrios did not sign or authorize the Bank Letter 
because there is nothing on the record in support of the Government’s allegation. The evidence is 
that Mr. Barrios said he did not recall—not that it was forged. For this reason alone, acquittal on 
the Aggravated Identity Theft charge on the Bank Letter, Count 11, should be granted. 
2. 
There is No Evidence Mr. Barrios’ Identity Was a “Key Mover” in the 
Alleged HM Four EIDL Wire Fraud.  
With respect to the Dubin requirement, the Government produced no evidence that Mr. 
Barrios’ identity was a “key mover” in the alleged HM Four EIDL wire fraud. Even if the letter 
itself  was a key mover (as discussed below, it was not) the Government’s response pointed to no 
evidence in the record that Mr. Barrios’ identity was the crux of the fraud, or that the name of a 
real, actual person (as opposed to a fictious name or simply an indication that the letter was 
approved by anonymous authorized bank representative) was required.2 For this additional reason, 
 
1 [12.14.23 AM Trial Tr. 79-81, 91, 102]. Mr. Barrios refused to testify that he did not sign or 
authorize the Bank Letter, saying only it was not the norm and he does not recall signing the Bank 
Letter. Id. at 79 (“So I would not be able to tell you the specific instant whether I signed this 
or not, because I’ve signed so many of them”) (emphasis added); Id. at 91(“I’m telling you I 
don’t recall signing the letter”); Id. at 102 (Q: And Mr. Barrios, with regards to the letter, I mean, 
your bottom line is you just don’t remember it, right?” A: “Correct. . . . I agree that it has my 
email on it and it has my signature that would normally be on my emails, yes . . . nobody else 
had access to that email, correct”) (emphasis added). 
 
2 See Dubin v. United States, 599 U.S. 110, 122-23 (2023) (“[T]he means of identification 
specifically is a key mover in the criminality[,]” “the locus of [the criminal] undertaking,” rather 
than merely “passive,” “passing,” or ancillary employment in a crime.); United States v. Gladden, 
78 F.4th 1232, 1245 (11th Cir. 2023) citing Dubin, 143 S.Ct. at 1568 (“This central role played by 
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the Motion for Acquittal on the Aggravated Identity Theft charge on the Bank Letter, Count 11, 
should be granted. 
3. 
There is No evidence the Bank Letter Was a “Key Mover” in the 
Alleged HM Four EIDL Wire Fraud. 
 
As shown in the Motion, the contemporaneous emails and Mr. Motes’ hearsay testimony 
about them demonstrated there was no record evidence that the Bank Letter was required, 
requested, relied upon, or even read by the SBA representative when it approved the loan. [Motion 
at 12, 14]. And, the record cited in the Motion shows that it was disregarded by the SBA, in favor 
of the documents the SBA did request and require to verify the bank account ̶ the void check and 
bank statement. [Id.]. In its Response, the Government ignores this and proffers no record citations 
that could support this charge. [Response at 12-15]. Instead, the Government admits that the Bank 
Letter was not required by the SBA. [Response at 18]. As such, there is no evidence for a 
reasonable jury to convict on the Aggravated Identity Theft charge on the Bank Letter, requiring 
acquittal on Count 11.  
C. 
Count 10: The Alleged Falsified Lease. 
1. 
There is No Evidence of Identity Theft. 
As the Government pointed out, the lease does not have Maged Salem’s name on it, and 
there is no representation in the record that the signature belonged to Maged Salem (as opposed to 
Mages Salem, evidently not a real person). [12.14.23 AM Trial Tr. 36-38]. For this reason alone, 
acquittal on the Aggravated Identity Theft charge on the Lease, Count 10, charged only as to 
“Maged Salem,” must be granted. 
 
 
the means of identification, which serves to designate a specific person’s identity, explains why 
we say that the ‘identity’ itself has been stolen.”). 
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2. 
There is No Evidence Mr. Salem’s Identity Was a “Key Mover” in the 
Alleged HM Four EIDL Wire Fraud.  
 
Even if the Court accepts the Government’s invitation to pretend that Maged Salem’s name 
is on the Lease, the Government produced no evidence that his name was a “key mover” in the 
alleged HM Four EIDL fraud. Even if the lease itself was a key mover in the alleged fraud (as 
discussed below, it was not) the Government’s response pointed to no evidence that Maged 
Salem’s identity was a “key mover” to the fraud,  or that the name of a real, actual person (here, 
there was not a real person on the lease) was required. For this reason alone, acquittal on the 
Aggravated Identity Theft charge on the Lease, Count 10, must be granted. 
3. 
There is No evidence the Lease Was a “Key Mover” in the Alleged 
HM Four EIDL Wire Fraud. 
 
Even if the Court, again, pretends Maged Salem’s name was on the Lease and also pretends 
that his name had to be on this allegedly fraudulent document, the contemporaneous emails and 
Mr. Motes’ hearsay testimony about them show that there is no evidence the Lease was required, 
requested, relied upon, or even read by the SBA representative when it approved the loan.  [Motion 
12, 14].  The record is crystal clear on this, which is why the Government ignores the record cited 
by the Defendant and offers no record cites on its behalf. [Response at 13-15]. The Government 
admits the Lease was not required by the SBA. [Response at 18]. For this additional reason alone, 
acquittal on the Aggravated Identity Theft charge on the Lease, Count 10, must be granted.3 
 
3 The Government seems to suggest that if the banks had discovered fraudulent information, the 
loan would have been rejected [Response at 14-15] but as the Defendant pointed out in his 
Motion—which was ignored by the Government in its Response—this argument is just a side-step 
around Dubin and Gladden. [Motion at 15]. Obviously, the SBA would reject any attempted loan 
if it discovered fraudulent information in the loan package, but that would not convert otherwise 
non-“key mover” information into “key mover” information under Dubin. For example, in Dubin, 
if Medicaid knew the patient didn’t receive the services provided by that psychologist, it is 
axiomatic that Medicaid wouldn’t have approved the reimbursement. This is just another assault 
on Dubin and Gladden because the Government cannot meet its burden of proof.  
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D. 
Counts 12-14: The Alleged False Tax Returns for Specified PPP Loans. 
1. 
There is No Evidence that the CPA’s Identity Was a “Key Mover” in 
the Alleged PPP Loan Wire Fraud. 
As discussed in Defendant’s Motion, even in the view most favorable to the Government, 
the evidence presented shows that the alleged forged identifications were irrelevant. [Motion at 
11-12]. The alleged deception here did not center around the identity of the CPA. The evidence 
establishes that the use of the CPA’s identity in the Tax Returns was irrelevant; the accountant’s 
name, signature, and Preparer Tax Identification Number was not required or even considered for 
the Tax Returns, and was thus immaterial. [Motion at 3, 11-12]. The Government cannot cite to 
any record evidence to establish how the identity of the CPA was central to the alleged scheme.  
With no evidence, the Government can only cite this Court to an out-of-circuit district court 
case, United States v. Fullerton, 2023 WL 6150782 (W.D. Tx. Sept. 20, 2023), but Fullerton was 
deciding a motion to dismiss with no evidentiary record. We are here on a Rule 29 motion – in 
which the Government has rested, and there is no evidence whatsoever that the CPA’s identity had 
any impact with respect to the PPP loans.  In fact, the evidence is to the contrary. The SBA and 
lender PPP witnesses said when they needed tax returns (which they did not need here), they did 
not expect any CPA names because some taxpayers do not use CPAs and others provide copies 
which may not have the name of the CPAs that are on the originals filed with the IRS. [Motion at 
3, 11-12]. There is no evidence in the record for a reasonable juror to conclude that that the 
allegedly stolen CPA identity was of any moment, and the Court is not free to ignore the dictates 
of Dubin and Gladden.  
Undeterred, the Government requests that the jury be permitted to speculate that Defendant 
allegedly put CPA information in the fake returns out of fear the PPP lenders would see the original 
returns with the CPA’s information because of the alleged submission of forms 4506T. [Response 
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at 18-19]. First, there is no evidence of 4506Ts being submitted to the PPP lenders.  The evidence 
is they were submitted to Nationwide and the SBA for EIDL loans (about which there is no AIT 
charge for tax returns), so there is no reason to guess that the Defendant speculated that the Banks 
would get his returns.  Second, the argument makes no sense because the evidence is that PPP 
lenders understood they were getting copies and only originals submitted to the IRS had to have 
CPA information on them for those returns prepared by a CPA. [12.05.23 AM Trial Tr. 50-51 
(David Toye Northeast); 12.05.23 PM Trial Tr. 112-113 (Spencer Lord Cross River)]. Finally, and 
most importantly, even if everything the Government speculates here is based on evidence, that 
would still not make the CPA’s identity a “key mover” in the charges under Dubin and Gladden.4 
 
 
4 The Government’s reliance on United States v. Daniels, 2023 WL 4532675 (M.D. Fla. July 
13,2023) is also misplaced. As the Government argues, contrary to the instant case, the forgery 
there is what resulted in the tax collector’s office providing clear title to the vehicle; it was the 
crux of the criminality there. Id. at *3 (“Upon review of the forms [which included a forged 
signature for J.E.], a representative with the tax collector's office then provided a clear title to the 
vehicle.”). In finding the use of J.E.’s signature constituted Aggravated Identity Theft, the court 
there explained: 
 
[A]s part of the wire fraud scheme, [Daniels] and his coconspirators 
stole and used the identity of J.E., the lienholder, on the tow slip to 
make it look like the lienholder had been notified of the tow . . . 
[T]he key reason the fraud scheme worked is that the persons at the 
tax collector's office believed the lienholders had notice of the tows. 
The employees thought the tows were legitimate because they saw 
the signatures on the tow slips. 
 
Id. Here, as the Government admits in its Response, “neither the lenders nor the SBA required the 
tax returns to be signed by an accountant” and with respect to the HM Four EIDL application, “the 
SBA did not require the specific documents [the Bank Letter or Lease Agreement] the defendant 
produced.” [Response at 18]. Additionally, unlike in Daniels, the Government provided no 
evidence that the use of the identities in the Tax Returns, Bank Letter, or Lease Agreement, is the 
key reason the alleged fraud scheme worked, or that the identifying information made any 
difference whatsoever in funding the loans. As such, unlike Daniels, the documents, nor the 
identities of the individuals on those documents, could be the crux of the fraud alleged here. 
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2. 
There is No Evidence that the Tax Returns were “Key Movers” in 
Any of the Alleged PPP Loan Wire Frauds.  
As shown in Defendant’s Motion, and explained in more detail below, there is also no 
evidence that the tax returns themselves were either required or relied upon in funding the loans. 
For this additional reason, an acquittal is required. 
PayPal: PayPal’s representative, Jamie Hutchinson, testified that she personally was not 
involved in the loan application. [11.30.23 PM Trial Tr. 3-4, 6, 15, 18, 24, 26-27, 29, 61, 80]. As 
such, she could not testify from personal knowledge as to what documents PayPal relied upon in 
funding the specific loan at issue. She could not opine what was actually considered or relied on 
much less central to the loan application. Although Ms. Hutchinson claimed to know, three years 
later and with no personal involvement, that that Tax Returns were required, she clarified on cross 
examination that:  There’s no record information the that would indicate that anyone from 
PayPal reviewed the 2020 tax return from HM-UP, or relied upon them return in funding 
the loan [11.30.23 PM Trial Tr. 90-91]; and the applicant elected to prove loss of revenue 
quarter over quarter, and therefore, Tax Returns were not required. [11.30.23 PM Trial Tr. 
98-100]. 
Northeast Bank: Similarly, David Toye from Northeast Bank testified that he did not have 
personal involvement in the specific loan the applied for. [12.05.23 AM Trial Tr. 8, 13]. Although 
Mr. Toye testified  to his opinion that the bank would have wanted to review a business’ tax returns 
for a standard commercial loan, he did not testify as to the PPP loan and admitted on cross-
examination that there was nothing in the documentation provided to indicate that the Tax 
Returns were relied upon in making a decision to fund the loan, and for the approval of the 
loan, Northeast Bank did not require any business tax returns to substantiate loss in revenue. 
[12.05.23 AM Trial Tr. 52-54]. In fact, he admitted that, while he believes the applicant should 
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have applied as a partnership, in which case the K-1 part of a tax return (which does not have any 
place for CPA information] would have been required, the records showed that the applicant 
applied as LLC, and was treated as an LLC by Northeast Bank, such that no part of any tax return 
was required. [12.05.23 AM Trial Tr. 56-65].  He also admitted that when an applicant is looking 
at the applicant portal, the portal stated that the 2019 tax returns were optional, not required,  and  
it didn’t suggest even an option to submit 2020 tax returns. [Id.]. 
Cross River Bank: Similar to the PayPal and Northeast Banks representative, the Cross 
River Bank representative, Spencer Lord, also lacked personal knowledge about the actions that 
were taken by Cross River Bank related to this specific loan. [12.05.23 PM Trial Tr. 72-74]. As 
such, he could not testify from personal knowledge as to what documents Cross River requested 
or relied upon in funding the specific loan at issue, nor was there any document to substantiate any 
reliance on 2020 tax returns by the examiner.  Therefore, there is insufficient evidence for the jury 
to conclude that the fraudulent Tax Returns were relied upon by PayPal in funding the loan to the 
Defendant’s companies, thereby failing to prove that the document itself was central to the 
Defendant’s alleged scheme. Further, although Mr. Lord claimed to know that that Cross River 
requested filed tax returns from either 2019 or 2020 [12.05.23 PM Trial Tr. 59], on cross 
examination, Mr. Lord testified: 
• There was no document produced or evidence that shows that Cross River 
requested the 1065 Tax Return from HM Management [12.05.23 PM Trial Tr. 75-
76]. 
• None of the documents produced show that a 1065 was requested or that 
anyone at Cross River read the 2020Tax Return [12.05.23 PM Trial Tr. 78]. 
• A Tax Return was required for partnerships, but HM Management was an 
LLC, therefore it was not required. [12.05.23 PM Trial Tr. 76]. 
• There’s nothing in the record that shows that the underwriter reviewed or 
analyzed the 1065 Tax Return. [12.05.23 PM Trial Tr. 110-111].  
 
 
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II. 
The Government Failed to Prove Wire Fraud on Counts 4-9, the PPP Loans. 
 In his Motion, the Defendant pointed to only to one element the Government failed to 
prove: that the Defendant did not participate in a scheme to defraud a property interest as required 
for wire fraud by Ciminelli v. United States, 598 U.S. 306, 308 (2023) and United States v. 
Takhalov, 827 F.3d 1307, 1312 (11th Cir. 2016). [Motion at 16-19]. As the Defendant pointed out, 
a “scheme to defraud” in the wire fraud statute is not scheme that is intended to deceive someone 
only of information needed to make discretionary decisions about the use of money or property or 
harm to strictly policy interest.5 Rather, a scheme to defraud is a scheme that is intended to cause 
an economic injury or loss on the alleged victim. Takhalov, 827 F.3d at 1312 (“to defraud, one 
must intend to use deception to cause some injury”).6  Here, there was no possible economic injury 
to the Banks because the SBA guaranteed the loans and paid them a fee, per the program.  [Motion 
at 19]. That is insufficient for wire fraud under Ciminelli and Takhalov. 
Recognizing it cannot defend the wire fraud charges with the Banks as the victims, the 
Government now argues that the SBA was really the victim of the charged PPP loan frauds.  This 
shameful maneuver by the Department of Justice must be rejected as it varies from the Indictment, 
creates counts that are multiplicitous because they allege multiple victims, and contradicts its own 
 
5 Ciminelli, 598 U.S. at 308 (2023) (Because “potentially valuable economic information” 
“necessary to make discretionary economic decisions” is not a traditional property interest, we 
now hold that the right-to-control theory is not a valid basis for liability under § 1343.”); Id. at 316 
(“In sum, the wire fraud statute reaches only traditional property interests. The right to valuable 
economic information needed to make discretionary economic decisions is not a traditional 
property interest. Accordingly, the right-to-control theory cannot form the basis for a conviction 
under the federal fraud statutes.”) 
6 Id. at 1310 (Ҥ 1343 forbids only schemes to defraud, not schemes to do other wicked things, 
e.g., schemes to lie, trick, or otherwise deceive. The difference, of course, is that deceiving does 
not always involve harming another person; defrauding does. That a defendant merely 
“induce[d] [the victim] to enter into [a] transaction” that he otherwise would have avoided is 
therefore “insufficient” to show wire fraud.”) (emphasis added). 
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admission in the middle of trial. [Motion at 18; D.E. 152 at 1; 12.4.23 AM Trial Tr. 48:18-49:7]. 
Even if permitted to do so, the Government also cannot prove wire fraud on the SBA for PPP 
because the SBA PPP witness admitted the only harm that could come from an ineligible applicant 
getting a PPP loan is harm to the policy interests of the SBA, not to its economic interests. [Motion 
at 19].  The SBA was duty-bound and determined to use up all of its allocations and did so with 
demand still not met, and so there was no scenario where the SBA was going to keep any of its 
funds from being allocated for a PPP loan. [11.28.23 Trial Tr. 5, 88-89, 91-93]. The wire fraud 
does not protect harm to a policy interests. The case law cited by the Government [Response at 3-
4] does it no good, because here there was no misrepresentation about the economic “benefit of 
the bargain.”  The evidence is the Defendant’s companies requested the exact same economic 
“benefit of the bargain” as any other PPP loan applicant. [11.28.23 Trial Tr. 74-77]. There was no 
alleged fraud on economic terms. The alleged fraud was regarding the policy interests of the 
program, not protected by the wire fraud statute. 
III. 
The Government Failed to Prove Wire Fraud on Counts 1-3, the EIDL Loan. 
In his Motion, the Defendant challenged Counts 4-9, the Wire Fraud counts related to the 
PPP loan applications, not the EIDL loan applications. Yet, the Government chose to brief the 
EIDL HM Four loan, Counts 1-3, in order to supposedly demonstrate that the Government met its 
burden of proof. While this was not raised in the Motion, the Response showed that there was 
insufficient evidence of this charged wire fraud. The Government’s argument, focusing on the 
Lease and Bank Letter which were not required or considered by the SBA, demonstrates it has no 
evidence of a material misrepresentation in the HM Four EIDL loan.  
WHEREFORE, Defendant, Eric Dean Sheppard, respectfully requests that this Court 
enter a judgment of acquittal on all counts related to Aggravated Identity Theft and Wire Fraud 
Case 1:22-cr-20290-BB   Document 166   Entered on FLSD Docket 12/26/2023   Page 10 of 11

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Counts 4-9, related to the PPP loan applications, and for such other and further relief as may be 
just and proper.  
Dated: December 26, 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 December 26, 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 166   Entered on FLSD Docket 12/26/2023   Page 11 of 11

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