Order denying 167 Motion to Exclude as to Eric Dean Sheppard (1) — USA v. Sheppard (Dkt. 171, S.D. Fla.)

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U.S. District Court for the Southern District of Florida · No. 1:22-cr-20290-BB · Doc. 171 · 2024-01-05 · 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). 
_____________________________/ 
 
ORDER ON MOTION TO EXCLUDE 
 
THIS CAUSE is before the Court on Defendant Eric Dean Sheppard’s (“Sheppard”) 
Emergency Motion to Prevent a Government-Induced Mistrial Based on Seizure of J.V.’s Phone, 
ECF No. [167] (“Motion”), filed on December 27, 2023. The Court ordered the Government to 
file an expedited Response, ECF No. [168], and the Government complied, filing its Response on 
December 29, 2023, ECF No. [169]. The Court has considered the Motion, the Response, and is 
otherwise fully advised. For the following reasons, the Motion is denied. 
I. 
BACKGROUND 
The Court has previously set forth background on the above-styled action, see ECF Nos. 
[40], [111], [121], [123], and assumes the parties’ familiarity with the facts. Sheppard filed the 
instant Motion after the first day of his testimony and during a break in the proceedings. As 
pertinent to the Motion, Sheppard testified that he had not uploaded bank records to PayPal and 
did not recall who did so. Sheppard later testified that J.V., one of Sheppard’s deceased former 
business associates, may have been one of the individuals who “physically uploaded” the PayPal 
loan application onto a portal, that J.V. said something to the effect of “Okay. Where do I go? 
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Where do I go? Okay. Great. Great. Great. Great.” after being asked to help with the PayPal loan, 
and that J.V. was “a very aggressive guy” who “looks to do things.” 
In the Motion, Sheppard requests that the Court enter an immediate order barring the 
Government from accessing, reviewing, or using any part of J.V.’s phone. ECF No. [167] at 7.1 In 
support, Sheppard states that the Government emailed his counsel indicating its intent to introduce 
evidence from J.V.’s phone that that J.V.’s widow had authorized to search and seize. ECF No. 
[167] at 1-2. Sheppard contends that the Government’s attempt to introduce such evidence, which 
he urges is new and previously undisclosed, violates the Government’s obligations under the 
Supreme Court’s decision in Brady v. Maryland, 373 U.S. 83 (1963), and Rule 16 of the Federal 
Rules of Criminal Procedure. Id. at 1, 6; see also Fed. R. Crim. P. 16(d)(2)(C) (permitting a district 
court to prohibit a party from introducing evidence that it failed to disclose as required by the 
Rule).2 More still, Sheppard accuses the Government of doing so to manufacture a mistrial. Id. at 
6-7.  
The Government responds that Sheppard raised for the first time the possible defense that 
J.V. had access to his computer or computers and uploaded false and forged documents to lend 
support to his loan applications without his knowledge. ECF No. [169] at 1. The Government 
submits that it “does not have an obligation to disclose its proposed rebuttal evidence to the 
 
1 Sheppard also requests that the Court prohibit the Government from arguing “the alleged 404(b) evidence” 
in its closing argument. Id.; see also ECF Nos. [77] (Notice of Intent to Use Rule 404(b) Evidence), [113] 
(Defendant’s Response to Notice of Rule 404(b) Evidence, Motion in Limine, and Request for Evidentiary 
Hearing), [123] (order denying Defendant’s request that the Court exclude the testimony of J.G. and any 
purported evidence relating to said Visa Documents). Sheppard provides no basis in fact or law that 
justifies that Court’s reconsideration of its denial of his request to exclude 404(b) evidence, the Court thus 
declines to do so.  
2 Unless otherwise stated, all references to the Rules are to the Federal Rules of Criminal Procedure. 
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defendant”, citing inter alia United States v. Windham, 489 F.2d 1389, 1392 (5th Cir. 1974). ECF 
No. [169] at 2.3 
II. 
LEGAL STANDARD 
Rule 16 of the Federal Rules of Criminal Procedure “is the primary rule governing pretrial 
discovery in criminal cases, and it ‘spells out the materials the prosecution must produce on the 
defendant’s request.’” United States v. Russell, No. 22-20348, 2022 WL 17736195, at *1 (S.D. 
Fla. Dec. 17, 2022) (quoting United States v. Jordan, 316 F.3d 1215, 1249 (11th Cir. 2003)). In 
addition to the discovery obligations embodied by Rule 16, a criminal defendant’s due process 
rights obligate the prosecution to disclose information that is favorable to the defendant and that 
is material either to guilt or to punishment. Brady v. Maryland, 83 S. Ct. 1194 (1963). 
Favorable evidence for Brady purposes includes both exculpatory and impeachment 
evidence. See Giglio v. United States, 92 S. Ct. 763 (1972); Jordan, 316 F.3d at 1253. But mere 
“favorableness” to the defendant is not enough to qualify for Brady protections—the information 
must also be material. Evidence “is material as long as there is a strong indication that it will play 
an important role in uncovering admissible evidence, aiding witness preparation, corroborating 
testimony, or assisting impeachment or rebuttal.” United States v. Lloyd, 992 F.2d 348, 351 (D.C. 
Cir. 1993). 
In Giglio v. United States, 405 U.S. 150 (1972), the Supreme Court extended Brady to 
disclosure of impeachment material. U.S. v. Singleton, No. 22-14048, 2023 WL 2164588, at *3 
(S.D. Fla. Feb. 13, 2023). See Jordan, 316 F.3d at 1253. Under Giglio, “[w]hen the reliability of a 
given witness may well be determinative of guilt or innocence, nondisclosure of evidence affecting 
credibility” justifies a new trial. Giglio, 405 U.S. at 153-54. The difference between Brady material 
 
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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and Giglio material is that Brady information is exculpatory, meaning it “relates to evidence which 
directly tends to lessen a defendant’s guilt,” while Giglio material is impeaching, meaning that it 
relates to “witness credibility type evidence of a collateral nature . . . indirectly making it less likely 
that the defendant is guilty.” U.S. v. Hopkins, 2008 WL 4453583, at *2 (E.D. Cal. Oct. 3, 2008). 
The purpose of Giglio and its progeny is “to insure that the jury knows the facts that might motivate 
a witness in giving testimony.” Brown v. Wainwright, 785 F.2d 1457, 1465 (11th Cir. 1986) 
(quoting Smith v. Kemp, 715 F.2d 1459, 1467 (11th Cir.), cert. denied, 464 U.S. 1003, 104 S. Ct. 
510, 78 L. Ed. 2d 699 (1983)). 
III. 
DISCUSSION 
As the Government correctly notes, Sheppard—in violation of the Local Rules4—does not 
point out what Brady violation is occurring and cites no case law to support his accusations. The 
Court will not do Sheppard’s research for him or make his arguments on his behalf. See Est. of 
Rowell v. Walker Baptist Med. Ctr., 290 F.R.D. 549, 554 (N.D. Ala. 2013) (“It is not a court’s task 
to research legal arguments on a party’s behalf.” (citations omitted)). 
Nevertheless, the Court addresses the issue to the extent of its review of the parties’ 
submissions to streamline the trial process.5 Sheppard argues that the purported Brady violation is 
grounds for excluding evidence from J.V.’s phone in order to avoid a mistrial, but to the extent 
there is a Brady violation, it nevertheless follows from the reasoning in Harris v. New York, 401 
U.S. 222, 225, 91 S. Ct. 643, 645, 28 L. Ed. 2d 1 (1971), a case cited in Windham, that the content 
 
4 See S.D. Fla. L.R. 7.1(a)(1) (“Every motion when filed and served shall incorporate a memorandum of 
law citing supporting authorities,” except for certain listed motions not including the instant Motion); see 
also S.D. Fla. L.R. 7.1(a)(2) and (3). 
5 Sheppard maintains he is entitled to “slow this train down to protect the rights guaranteed to him”, referring 
to the trial. ECF No. [167] at 7. But as set forth above, he has not shown a Brady violation has occurred. 
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of J.V.’s phone is admissible as impeachment evidence.6 In Harris, the Supreme Court held that a 
statement which was inadmissible against a defendant in the prosecution’s case in chief—because 
its elicitation failed to meet the procedural safeguards required by Miranda v. Arizona, 384 U.S. 
436 (1966) since the defendant had not been advised of his rights to counsel and to remain silent 
prior to making statement—was properly usable for impeachment purposes to attack the credibility 
of defendant’s trial testimony as the statement otherwise satisfied legal standards of 
trustworthiness. Harris, 401 U.S. at 226. In making that determination, the Court noted that 
impeachment evidence “undoubtedly provided valuable aid to the jury in assessing [the 
defendant’s] credibility,” and given that “the evidence in question” in that case was “made 
unavailable to the prosecution in its case in chief”, the application of the exclusionary rule was not 
warranted. Id. at 225. Harris also noted that  
[e]very criminal defendant is privileged to testify in his own defense, or to refuse 
to do so. But that privilege cannot be construed to include the right to commit 
perjury. Having voluntarily taken the stand, petitioner was under an obligation to 
speak truthfully and accurately, and the prosecution here did no more than utilize 
the traditional truth-testing devices of the adversary process. 
Id. (internal citations omitted). 
Here, the Government represents that the possible defense that J.V. was the true culprit of 
the scheme to defraud in this case was “raised for the first time” when Sheppard took the witness 
stand. To the extent the Government seeks to introduce evidence from J.V.’s phone to impeach 
Sheppard’s testimony on J.V.’s involvement with the loan application process, the report would 
be admissible for that purpose.  
 
 
6 In rejecting the defendant’s argument that testimony of his former partner in a medical practice was so 
highly prejudicial as to outweigh its relevance, and that the district court’s failure to exclude it was 
prejudicial, the Windham court, citing Harris, held that the failure by the Government to include on its 
witness list the names of two rebuttal witnesses was not prejudicial error. Windham, 489 F.2d at 1392. 
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Sheppard speculates that J.V.’s phone may have other information that the Government 
does not seek to collect that is Brady material. ECF No. [167] at 6. But that argument is without 
merit because the Government cannot search and seize items on J.V.’s phone for which they do 
not have consent. It follows that the Government cannot provide Sheppard those items. See United 
States v. Avenatti, 559 F. Supp. 3d 274, 280 (S.D.N.Y. 2021) (“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”). 
As for whether evidence from J.V.’s phone is excludable under Rule 16, the Court finds it 
is not. In Windham, the court stated that “[r]ebuttal witnesses are a recognized exception to all 
witness disclosure requirements.” Id. at 1392. This principle is well settled. See, e.g., Luxottica 
Grp., S.p.A. v. Airport Mini Mall, LLC, 932 F.3d 1303, 1320 (11th Cir. 2019) (citing Windham, 
489 F.2d at 1392). That being the case, and absent briefing on legal authorities to the contrary, it 
follows that rebuttal evidence in the form of evidence from J.V.’s phone is similarly excepted.  
Accordingly, the evidence from J.V.’s phone is not excludable under Rule 16 on the 
grounds that the Government failed to disclose it at an earlier time.  
IV. 
CONCLUSION 
Accordingly, it is ORDERED AND ADJUDGED that the Emergency Motion to Prevent 
a Government-Induced Mistrial Based on Seizure of J.V.’s Phone, ECF No. [167], is DENIED.  
DONE AND ORDERED in Chambers at Miami, Florida, on January 5, 2024. 
 
 
 
 
_________________________________ 
BETH BLOOM 
UNITED STATES DISTRICT JUDGE 
Copies to: Counsel of Record 
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