Response in Opposition by USA as to Eric Dean Sheppard — USA v. Sheppard (Dkt. 169, S.D. Fla.)

Record facts

U.S. District Court for the Southern District of Florida · No. 1:22-cr-20290-BB · Doc. 169 · 2023-12-29 · Docket on CourtListener

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UNITED STATES DISTRICT COURT 
SOUTHERN DISTRICT OF FLORIDA 
 
Case No. 22-20290-CR-BLOOM(s) 
 
UNITED STATES OF AMERICA  
 
 
 
vs. 
 
 
 
 
 
 
 
 
 
 
ERIC DEAN SHEPPARD 
 
 
 
       Defendant. 
                                    / 
 
UNITED STATES’ RESPONSE IN OPPOSITION TO  
DEFENDANT’S EMERGENCY MOTION TO EXCLUDE EVIDENCE 
 
 
The United States, by and through the undersigned Assistant United States Attorney, 
submits this response in opposition to the defendant’s emergency motion to exclude evidence.  
The defendant’s claim of a Brady violation and the other baseless accusations made in the 
defendant’s motion neither constitute an emergency nor do they have any merit.  The United 
States respectfully requests that the Court deny the defendant’s motion.   
Discussion 
 
During the trial, the defendant raised for the first time the possible defense that a deceased 
former business associate, J.V., had access to the defendant’s computer(s) and, unbeknownst to 
the defendant, uploaded false and forged document to lend support to the defendant’s loan 
applications.  The government has no information from the evidence it gathered in this case that 
J.V. had any criminal involvement with the defendant relating to the fraud scheme or the 
aggravated identity theft charges that are in the Superseding Indictment.  Thus, prior to the  
defense’s efforts to inject this issue into the trial, the government had no reason to interview J.V.’s 
widow.   
Case 1:22-cr-20290-BB   Document 169   Entered on FLSD Docket 12/29/2023   Page 1 of 5

Page 2 of 5 
 
Within the last couple of weeks, the government obtained limited consent from J.V.’s 
widow to search and seize specific information from J.V.’s cell phone, primarily, J.V.’s 
communications with the defendant.  The defendant has successfully introduced voluminous 
reciprocal discovery during the trial that the defense withheld from the government, claiming it as 
“rebuttal” evidence, and now complains that the government is attempting to rebut a claim the 
defendant is making for the first time at trial.  The defense has no basis and cites no authority for 
a court to order the FBI not to investigate a matter within its jurisdiction, and a matter it deems 
relevant to this case.   
The government does not have an obligation to disclose its proposed rebuttal evidence to 
the defendant.  See United States v. Windham, 489 F.2d 1389, 1392 (5th Cir. 1974); United States 
v. Delia, 944 F.2d 1010, 1018-19 (2d Cir. 1991); United States v. Grintjes, 237 F.3d 876, 879-80 
(7th Cir. 2001).  The defendant accuses the government of a Brady violation, but he does not point 
out what Brady violation is occurring, and cites no case law to support his accusations.  The 
defendant’s own communications with J.V. is something he should already have.  Nevertheless, 
the government will provide a copy of those communications to the defense in time for the defense 
to review them before the trial resumes.1    
 
1 One of the many baseless assertions in the defendant’s motion is that the government stretched 
out the testimony of its summary witness in order to cause the defendant to be in the middle of his 
testimony when the Court broke for its recess.  Over the course of several days, including after 
the close of the government’s case, the defense provided the government three different witness 
line-ups of its first three witnesses, none of which included the defendant.  The defense also 
specifically told the government that it was going to call multiple witnesses – not the defendant --  
before the Court’s recess in order to avoid going into the recess with the defendant on the witness 
stand.  The government found out the defendant would be testifying minutes before he took the 
stand. 
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As for the scope of the items to be extracted from J.V.’s cell phone, his widow’s consent 
was limited to specific items from the phone.  The defendant does not appear to be requesting the 
contents of the entire cell phone, but claims that there might be Brady information on the rest of 
the device, again without providing anything specific on that point.  The government does not 
have authority to search for and seize all of the contents of J.V.’s cell phone.  The government 
can only take possession of the items it is authorized to search for and seize from J.V.’s cell phone.  
See, e.g., United States v. Avenatti, 559 F. Supp. 3rd 274 (S.D.N.Y. 2021) (the government had 
received limited consent to search and seize from the victim/witness’s phone certain WhatsApp 
communications; government may not “access or copy the contents of the cell phone without a 
warrant or the person’s consent . . . . the Government was under no obligation to disclose to 
Avenatti more than it obtained itself, so neither Brady nor Rule 16 calls for exclusion of the 
WhatsApp evidence here.”); see also, United States v. Balwani, 2022 WL 1405404, at *6 (N.D. 
Ca. May 4, 2022) (information located within the targets’ seized devices is not within the 
government’s lawful possession, custody, or control, except for the information seized under the 
search warrant’s Attachment B; the government does not have any discovery obligations with 
respect to the other information located within the devices.  “Even if Balwani had made a proper 
Rule 16 demand for the remainder of the [21 terabytes of data], the Government could not have 
produced that data because, for the reasons discussed above, the Government did not have lawful 
possession, custody, or control of it.”).  Thus, there is no Brady violation from the government’s 
non-disclosure of the contents of J.V.’s cell phone to which it does not have lawful possession, 
custody or control.   
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The defendant also seeks to relitigate – during a court adjournment – issues which the Court 
has ruled on, by written order, and which the Court has reaffirmed during the trial.  The 
government strongly disagrees with the defendant’s mischaracterization of the matters he raises in 
this non-emergency, emergency motion.  The reason for the defense’s hurry is the defendant’s 
displeasure that the government is continuing to investigate, and may gain evidence that the 
defendant already has – his communications with a deceased business associate.  There has been 
no misconduct. 
Conclusion 
 
For the reasons set forth above, the defendant’s motion to exclude evidence should be 
denied.  Any further arguments should be heard when the Court is back in session on January 8, 
2024.   
    
             
 
 
 Respectfully submitted, 
    
MARKENZY LAPOINTE 
  
 
UNITED STATES ATTORNEY 
 
By:    s/Aimee Jimenez___________  
 
 
 
 
 
 
 
Aimee C. Jimenez 
 
 
 
 
 
 
Assistant United States Attorney 
 
 
 
 
 
 
Court No. A5500795 
 
 
 
 
 
 
99 Northeast 4th Street 
 
 
 
 
 
 
Miami, Florida 33132-2111 
 
 
 
 
 
 
Tel: (305) 961-9028 
 
 
 
 
 
 
Email: aimee.jimenez@usdoj.gov  
 
 
 
 
Case 1:22-cr-20290-BB   Document 169   Entered on FLSD Docket 12/29/2023   Page 4 of 5

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CERTIFICATE OF SERVICE 
 
I HEREBY CERTIFY that on December 29, 2023, I filed this motion and proposed order 
with the Clerk of the Court under seal, and provided a copy to counsel of record.   
s/Aimee Jimenez____________                           
 
 
 
 
 
 
Aimee C. Jimenez 
 
 
 
 
 
 
  Assistant United States Attorney 
 
Case 1:22-cr-20290-BB   Document 169   Entered on FLSD Docket 12/29/2023   Page 5 of 5

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