Court filing

MOTION for Acquittal by Eric Dean Sheppard. Responses due by 2/16/2024 — USA v. SHEPPARD (Dkt. 205)

Record facts

Court	U.S. District Court for the Southern District of Florida
Filed	2024-02-02

U.S. District Court for the Southern District of Florida · No. 1:22-cr-20290-BB · Doc. 205 · 2024-02-02 · Docket on CourtListener

Summary

A defendant's motion for judgment of acquittal under Rule 29(c), dated February 2, 2024 and entered that day as Document 205 in United States of America v. Eric Dean Sheppard, Case No. 22-20290-CR-BLOOM/OTAZO-REYES, in the U.S. District Court for the Southern District of Florida. It asks for judgment of acquittal on all counts of conviction: the two aggravated identity theft counts, Counts Thirteen and Fourteen, under Dubin v. United States, 599 U.S. 110 (2023), and the wire fraud counts, Counts Five, Seven, Eight, and Nine, citing United States v. Takhalov and Ciminelli v. United States. The motion argues the crux of the alleged fraud was statements about the defendant's businesses and their PPP eligibility rather than any misrepresentation of identity. It also argues the harm asserted to the government was regulatory rather than to property. It is 21 pages.

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Full text

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FORIDA
CASE No. 22-20290-CR-BLOOM/OTAZO-REYES

UNITED STATES OF AMERICA,

vs.

ERIC DEAN SHEPPARD,

Defendant.
_______________________________/

DEFENDANT’S MOTION FOR JUDGMENT OF ACQUITTAL
Defendant Eric Dean Sheppard, by and through undersigned counsel, pursuant to Rule
29(c) of the Federal Rules of Criminal Procedure, hereby moves this Court to enter a judgment of
acquittal for all counts on which he was convicted, and states as follows:
INTRODUCTION
Under Dubin v. United States, 599 U.S. 110 (2023), the Court should enter judgment of
acquittal on the two aggravated identity theft (“AIT”) counts, Counts Thirteen and Fourteen. Dubin
held that a defendant is guilty of AIT only when his use of the victim’s identity is the crux of the
predicate fraud—i.e., when the key mover in the underlying fraud is stealing or misrepresenting
someone’s identity. Here, Sheppard’s alleged placement of Neil Cupersmith’s name and identifying
information on two tax forms, one for HM UP Development Alafaya Trails (“HM UP”) and one for
HM Management and Development (“HMMD”), is not what allegedly made the loan applications
fraudulent. As the government repeatedly told the jury and argued to this Court, its theory of fraud
was that Sheppard “l[ied] abut his businesses” and their eligibility to participate in the Payment
Protection Program (“PPP”), not that he lied about Cupersmith’s identity. [1/11/24 Tr. 57:6-13];
see also D.E. 165 at 4-5 (crux of alleged fraud was “misrepresenting his businesses as businesses
with employees and payroll amounts that did not exist”). Under Dubin, judgment of acquittal is
required.

Under the Eleventh Circuit’s decision in United States v. Takhalov, 827 F.3d 1307 (11th
Cir. 2016), and the Supreme Court’s decision in Ciminelli v. United States, 598 U.S. 306 (2023),
this Court should enter a judgment of acquittal on the wire fraud counts (Counts Five, Seven, Eight,
and Nine) because Sheppard did not engage in a “scheme to defraud.” A “scheme to defraud” is
Case 1:22-cr-20290-BB Document 205 Entered on FLSD Docket 02/02/2024 Page 1 of 21

one that, if completed as devised, harms the victim’s property rights. The government has
hypothesized two victims: the lending banks and the Small Business Administration (“SBA”).
The banks were not victims of fraud because they received exactly what they bargained for, and
they could only benefit from making PPP loans by collecting fees. And the only harm the SBA
could have sustained is regulatory. As the SBA’s own witness testified, the PPP eligibility criteria
Sheppard allegedly lied about were meant to protect the government’s policy interests in
promoting W-2 employment. But because the wire fraud statute protects “property rights only,”
this asserted harm to the government’s “regulatory interests” cannot sustain a conviction.
Cleveland v. United States, 531 U.S. 12, 19, 21 (2000).

For these reasons and those set out below, the Court should enter a judgment of acquittal
on Counts Five, Seven, Eight, Nine, Thirteen, and Fourteen.

BACKGROUND

On June 29, 2022, Sheppard was charged with six counts of wire fraud, one count each for
six loans. Three of the loans were issued by the SBA under a program referred to as “EIDL.” The
other three loans were issued by private lenders under the PPP. On August 24, 2023, Sheppard
was charged with a 14-count superseding indictment, upon which he was tried. Counts One
through Nine charged wire fraud; Counts Ten through Fourteen charged AIT. Trial began on
November 27, 2023. Although originally projected by the government to last 5-7 days, the trial
lasted 17 days (the government’s case took over 12 trial days, followed by 4 days of defense
witnesses, including the testimony of the Defendant). Because of several multi-day breaks over
Sheppard’s repeated objections, followed by one break lasting three weeks, the jury did not get the
case until January 11, 2024. After a note of deadlock and a modified Allen Charge, the next day,
January 12, the jury returned a verdict of Not Guilty on eight of the Counts, and Guilty on six of
the Counts, and the Court entered judgments of acquittal and conviction on that basis.
DISCUSSION
I.
LEGAL STANDARD

Under Federal Rule of Criminal Procedure 29(c), a court must inquire whether, “after
viewing the evidence in the light most favorable to the prosecution, would any rational trier of fact
have found all the essential elements of the crime beyond a reasonable doubt.” United States v.
Lopez, 403 F. App’x 362, 370-71 (11th Cir. 2010) (citing United States v. Eckhardt, 466 F.3d 938,
944 (11th Cir. 2006)). “If there is a lack of substantial evidence, viewed in the government's favor,
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from which a reasonable factfinder could find guilt beyond a reasonable doubt, the conviction must
be reversed.” United States v. Willner, 795 F.3d 1297, 1307 (11th Cir. 2015) (quoting United States
v. Kelly, 888 F.2d 732, 740 (11th Cir. 1989)).
I.
AGGRAVATED IDENTITY THEFT CONVICTIONS
A.
Dubin Requires That The Use Of Another Person’s Identity Be The Crux Of
The Underlying Fraud
Section 1028A makes it a crime to knowingly use, without lawful authority, another person’s
means of identification during and in relation to a list of predicate felonies. 18 U.S.C. § 1028A.
Aggravated identity theft under Section 1028A is a serious charge and carries with it an enhanced
penalty—namely, a mandatory two-year prison term to run consecutively with the term imposed for
the underlying felony. Before Dubin, the government had “wielded § 1028A(a)(1) well beyond
ordinary understandings of identity theft.” 599 U.S. at 115. Dubin put an end to these prosecutions—
including the prosecution in this case.
Dubin held that a defendant “uses” another person’s means of identification in contravention
of the AIT statute only when “the means of identification is at the crux of what makes the predicate
offense criminal.” Id. at 117; see also id. at 132. It is not enough for the government to prove that there
is a “causal relationship” between the defendant’s use of someone’s identity and the fraud, “such as
facilitation of the offense or being a but-for cause of its success.” Id. at 131 (quotations omitted).
Instead, the defendant’s use of someone’s identity must be the gravamen or “key mover” of the
underlying fraud (here, wire fraud). Id. at 122.
To aid courts in this analysis, Dubin adopted as a “helpful guide,” id. at 132, the test articulated
by Judge Sutton in United States v. Michael, 882 F.3d 524 (6th Cir. 2018). The central question under
that test is: What made the defendant’s underlying conduct fraudulent? As the Supreme Court
explained, a defendant violates the AIT’s “use” and “in relation to” elements in the healthcare context
when the crux of the underlying healthcare fraud is a misrepresentation about “who received the
services,” whereas a defendant does not commit AIT when the fraud is “misrepresenting how and when
services were provided.” Dubin, 143 U.S. at 132. What matters, Dubin held, is whether the defendant
committed the underlying fraud because he lied about someone’s identity (which may be AIT), or
whether he committed the fraud by lying about something else (which is not).
The facts of Dubin illustrate this principle. There, the government alleged that the defendant,
David Dubin, committed AIT by submitting a fraudulent claim to Medicaid. That claim included
patient identifying information because patient identifying information is necessary for Medicaid
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reimbursement. See United States v. Dubin, 27 F.4th 1021, 1401 (5th Cir. 2022) (en banc) (Costa, J.,
dissenting). But the Supreme Court held that Dubin’s inclusion of patient identifying information on
the fraudulent claim, although a but-for cause of the fraud’s success, was not enough to sustain a
conviction for AIT. The underlying healthcare fraud consisted of Dubin’s lies on the Medicaid claim
form about the value of the services his business provided to the patient and when those services were
performed. Dubin, 599 U.S. at 115. Because “the patient’s name was not at the crux of what made the
underlying overbilling fraudulent,” the Court held Dubin’s conduct did not amount to AIT. Id. at 132.
Cases decided after Dubin further demonstrate that the key question in evaluating the “use”
and “in relation to” elements in any AIT prosecution is whether the defendant committed the
underlying fraud by misrepresenting someone’s identity. Take the Eleventh Circuit’s post-Dubin
decisions in United States v. Gladden, 78 F.4th 1232 (11th Cir. 2023), and Carter v. United States,
2024 WL 20847, at *1 (11th Cir. Jan. 2, 2024). In Gladden, the court affirmed one defendant’s
AIT convictions because the underlying fraud consisted of misrepresenting who was receiving
prescriptions and, in one instance, who wrote the prescription. 78 F.4th at 1245-46; see also id. at
1248 (explaining that the defendant committed AIT because she “misrepresented who was
receiving the prescriptions”). By contrast, the court vacated the co-defendant’s AIT conviction
because the underlying fraud consisted of misrepresenting eligibility for reimbursement, not
someone’s identity. Id. at 1248. Although the defendant put another person’s name on a fraudulent
bill, “[t]he deception at the heart” of the fraud was the misrepresentation that the prescription was
“medically necessary.” Id. Carter is to similar effect. The Eleventh Circuit upheld that defendant’s
AIT convictions because the crux of the underlying fraud was a misrepresentation about who was
enrolled in the defendant’s school, “which had the effect of increasing state funding.” 2024 WL
20847, at *9.
Section 1028A, in short, is not a general anti-forgery statute. In the context of a fraud
prosecution, a defendant cannot be guilty of AIT unless a misrepresentation about someone’s identity
is the crux of the underlying fraud.
B.
Sheppard Did Not Commit AIT Under Dubin
A judgment of acquittal is required because the crux of Sheppard’s conviction for wire fraud
was not a misrepresentation about the identify of Cupersmith, a Certified Public Accountant (“CPA”).
Indeed, not even the government contended at trial that Sheppard committed wire fraud by
misrepresenting Cupersmith’s identity. Instead, the government’s theory was that he misrepresented
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the characteristics of his businesses and their eligibility for participation in PPP. If anything, this is an
even weaker AIT prosecution than the one in Dubin for the independent reason that Sheppard’s use of
Cupersmith’s identity was not even a but-for cause of the fraud—and if the use of someone’s identity
is not a but-for cause of the fraud, it obviously cannot be the crux of the fraud.1
1.
The crux of the alleged wire fraud was Sheppard’s eligibility to
participate in PPP, not Cupersmith’s identity.

The government advanced two theories of wire fraud at trial. Neither supports an AIT
conviction because neither turned on a misrepresentation about Cupersmith’s identity.
Cupersmith’s identity was not the crux of the wire fraud.
The government’s first theory was that the PPP program was effectively limited to
employers whose payroll consists of W-2 wages, and that Sheppard committed wire fraud by
“misrepresenting the fact that [he] paid no [W-2] wages during the relevant time frame.” [D.E. 165
at 4-5 (explaining “[t]he scheme”). As the government summarized its theory to this Court, the
“most important[]” aspect (i.e., crux) of its wire fraud case was that Sheppard “misrepresent[ed]
his businesses as businesses with employees and payroll amounts that did not exist.” Id. at 5; see
also, e.g., id. at 6 (“made-up payroll figures with the intent to convince the lenders and the SBA
to approve and fund the loans”). The government pressed the same argument to the jury: the “basic
material lie[] here,” the government urged, was that Sheppard employed “wage employees.”
1/11/24 Tr. 59:3-8. The government’s fallback theory was that Sheppard “change[d] the industry
code for his business” on a form submitted in support of his loan applications, which likewise
misrepresented his businesses’ eligibility to participate in PPP. Id. at 73:11-24 (“the business code
has changed”).2

1 Sheppard never challenged Cupersmith’s testimony that Cupersmith did not sign or authorize
anyone to sign those alleged tax returns. Sheppard was not involved in or aware of this. There was
no evidence he was.
2 This latter misrepresentation about the “industry code” is materially indistinguishable from one
of the misrepresentations the Supreme Court rejected as insufficient to ground an AIT conviction
in Dubin. In Dubin, the defendant included a fraudulent code on a claim for reimbursement
submitted to Medicaid, which had the effect of “inflat[ing] the amount of reimbursement.” Dubin,
599 U.S. at 114. Here, Sheppard is alleged to have included a fraudulent code on a tax form, which,
had it been reviewed and relied on, would have had the effect of misrepresenting his businesses’
eligibility to participate in PPP. As in Dubin, allegedly fraudulent code was not a misrepresentation
about someone’s identity and therefore cannot support an AIT conviction.
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In other words, the government claimed that Sheppard committed wire fraud by
misrepresenting the characteristics of his businesses to convince the banks that he was eligible to
participate in the PPP program. As the government put it, the “basic scheme” was Sheppard “lying
about his businesses in order to qualify for the loans.” [1/11/24 Tr. 57:6-13]; see also, e.g., id. at
52:11-18 (Defendant lied “to make his businesses appear as if they were eligible for these COVID
relief loans”).
Lying about the characteristics of one’s businesses—and thus their eligibility to participate
in a government program—is not AIT under Dubin. Dubin asks whether the crux of the defendant’s
underlying fraud was a misrepresentation about someone’s identity. And as the government’s
submissions all but admit, Sheppard’s alleged invocation of Cupersmith’s identity was not “at the
crux of what made [those applications] fraudulent.” Dubin, 599 U.S. at 132. Rather, “[t]he crux of
the [wire] fraud here was a misrepresentation about the qualifications of” Sheppard’s businesses,
and thus their eligibility to participate in the PPP program. Id.
Sheppard is thus no different from many defendants who have been acquitted by appellate
courts of AIT for misrepresenting their eligibility to participate in a government program or receive
reimbursement. Take David Dubin himself. He lied about when services were performed to
convince Medicaid that those services were eligible for reimbursement. Dubin, 27 F.4th at 1026
(Owen, C.J., concurring) (“Dubin falsified the date that services were provided since, had he used
the correct date, the services would have been ineligible for reimbursement because they were
performed within a twelve-month period for which maximum benefits had already been paid.”).
But the Supreme Court expressly held that this lie did not amount to AIT because a
misrepresentation about someone’s identity was not at the crux of the fraud. Likewise, in Gladden,
where the Eleventh Circuit reversed (under plain error review) one defendant’s AIT conviction for
misrepresenting that prescriptions were “medically necessary.” 78 F.4th at 1248. The crux of the
fraud was about reimbursement eligibility (medical necessity), not the victim’s identity. So too in
the out-of-circuit cases cited approvingly by the Supreme Court in Dubin, 599 U.S. at 116, where
the gravamen of the defendants’ frauds was lying “about their own eligibility for reimbursement,”
United States v. Medlock, 792 F.3d 700, 706 (6th Cir. 2015) (no AIT where the fraud involved
misrepresenting how services were performed to deceive Medicare into reimbursing for the
services); United States v. Hong, 938 F.3d 1040, 1051 (9th Cir. 2019) (no AIT where massage
“was misrepresented as a Medicare-eligible physical therapy service”). And so too here. The
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government may have claimed that Sheppard coopted Cupersmith’s identity, but Cupersmith’s
identity was not “at the crux of the underlying criminality.” Dubin, 599 U.S. at 122.
The convictions sustained in Gladden and Carter illustrate this point in reverse. In both
cases, the Eleventh Circuit affirmed AIT convictions where “the heart of the deception”
constituting the underlying fraud was a misrepresentation about someone’s identity—who wrote
and received prescriptions in Gladden, 78 F.4th at 1245-56, and who was enrolled in the
defendant’s sham school in Carter, 2024 WL 20847, at *9. Here, the government’s own words to
this Court and the jury belie any suggestion that Cupersmith’s identity was at the heart of
Sheppard’s wire fraud conviction. According to the government itself, the “crux of the underlying
criminality,” Dubin, 599 U.S. at 122, were misrepresentations about the characteristics of
Sheppard’s businesses allegedly designed to deceive the banks into believing they were eligible to
participate in PPP. That is not identity theft under Dubin.
In denying Sheppard’s earlier Rule 29 motion, the Court correctly recognized that “the crux
of the Wire Fraud in this case is Sheppard’s misrepresentations about the nature of his worker’s
employment relationship, i.e., whether those workers were employees or independent contractors.”
[D.E. 170 at 12; see also id. at 9-10 (summarizing the evidence)]. But the Court held that the
government’s evidence was sufficient to present the Counts to the jury because the inquiry under
Dubin does not turn on whether the “use” of Cupersmith’s identity “was ‘at the crux’ of the wire
fraud.” Id. at 14. With respect, the Court’s reasoning is flatly inconsistent with Dubin, which held
that the precise question under Section 1028A is whether the use of another person’s identity is “at
the crux of what made the underlying [conduct] fraudulent”—here, whether Sheppard’s alleged
use of Cupersmith’s identity is at “[t]he crux of the [wire] fraud.” 599 U.S. at 132. Gladden, which
applies Dubin, is to the same effect. Indeed, sustaining Sheppard’s conviction merely because he
allegedly placed Cupersmith’s name and identifying information on the tax forms would collapse
the “use” and “in relation to” elements at issue in Dubin into the “without lawful authority” element
in Section 1028A. That Sheppard allegedly coopted Cupersmith’s identity on the forms proves at
most that he used that identity “without” Cupersmith’s “lawful authority.” But the “use” and “in
relation” to elements are different—they are about the relationship between the use of the identity
and the underlying “predicate offense.” Dubin, 599 U.S. at 132. Dubin held that this nexus
requirement is satisfied only where the defendant’s use of the identity is the crux of that predicate
offense, and this Court’s Rule 29 decision recognizes that the “crux” of predicate wire fraud
Case 1:22-cr-20290-BB Document 205 Entered on FLSD Docket 02/02/2024 Page 7 of 21

offenses here were misrepresentations about the employment status of Sheppard’s businesses’
workers. Under Dubin, that is not AIT.
2.
Cupersmith’s identity was not even the but-for cause of the fraud.

The analysis above is sufficient to enter a judgment of acquittal on Counts Thirteen and
Fourteen because Cupersmith’s identity clearly was not the crux of the wire fraud. Further support
comes from the fact that Cupersmith’s identity was not even a but-for cause of that fraud. See
Dubin, 599 U.S. at 131 (“being at the crux of the criminality requires more than a causal
relationship”). Cupersmith’s name appeared on forms that were not material to the approval of
Sheppard’s PPP loan applications and thus by definition could not have been the key mover in the
alleged fraud. In this respect, the government’s prosecution in this case is even weaker than the
one the Court unanimously rejected in Dubin. In Dubin, the defendant’s inclusion of the victim’s
identity on the Medicaid claim form was at least a but-for cause of the fraud. Medicaid will not
approve a claim for reimbursement unless it has patient identifying information, so Dubin’s use of
the patient’s identity was in that sense necessary for his healthcare fraud. But the Supreme Court
rejected that theory of AIT. This case is several steps removed. Unlike Dubin’s use of the patient’s
name on the Medicaid claim form, Cupersmith’s name played no causal role in the approval of his
PPP loan application.
a. The tax form on which Cupersmith’s name appeared was not material to the PPP loans.
Count Thirteen involved a PPP loan application funded by Northeast Bank. Count Fourteen
involved a PPP loan application funded by Cross River Bank. The government claimed at trial that
Sheppard misrepresented “wages and salaries” on 1065 tax returns submitted in support of those
loan application, and that he included Cupersmith’s identifying information on those returns
without Cupersmith’s consent. But those forms played no role in the banks’ approvals of the loan
applications and thus Cupersmith’s identity could not have been the crux of the fraud.
Northeast Bank/Count Thirteen. The government offered no evidence that anyone at
Northeast Bank or its loan processor, ACAP, even looked at the form on which Cupersmith’s name
appeared in deciding to approve the loan. No one from ACAP, the actual loan processor for
Northeast Bank, testified at trial. The only witness who testified regarding this loan was Mr. David
Toye, a senior executive at Northeast who was not involved in, and admittedly, had no personal
knowledge of, the loan application or the approval. [12/5/23 AM (Toye) 8:20-9:12; 12:13-13:10].
Thus, when pressed on AIT-related questions of what borrower materials were actually relied
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upon, or even reviewed or requested by Northeast, Toye admitted his answers were limited to the
information written in documents he looked at. [12/5/23 AM (Toye) 9:22-12:12, 52:15-53:3].
That said, even Toye testified that the 1065 tax return (with Cupersmith’s name) was not
relied upon to approve the loan.
Q.
There’s nothing in the documentation provided by Northeast or ACAP that
you have in your files that indicate that this tax return was relied upon in
the approval process; is that correct?
A.
That’s correct
. . . .

Q.
All you have [is] the documents to determine what was relied upon, correct?

A.
Yes.
Q.
And they don’t say they relied on the tax return, correct?
A.
They don’t say they relied on the business tax return.

[12/5/23 AM (Toye) 52:15-53:3].3
Toye also testified that the 2020 1065 return was not needed or used to substantiate loss of
revenue because the loan amount was under $150,000, which meant there was no requirement to
substantiate loss. [12/5/23 AM (Toye) 53:4-54:11]; see Ex. B (“Revenue Decline”) and Exhibit C
(marked up portion of Trial Exhibit 20-14). Toye said essentially the same thing on direct, with no

3 The government, on direct, misled Toye into speculating that the K-1 portion of the 1065 tax
return (which does not have a place for CPA information [12/5/23 AM (Toye) 57:22-58:13]), was
necessary to substantiate average monthly payroll through an inapplicable part of the
ACAP/Northwest loan review excel spreadsheet. [12/4/23 AM (Toye) 87:17-91:3]. On cross, Toye
admitted his answers to the prosecutor’s questions were based on an assumption and were
incorrect. [12/5/23 (Toye) 56:19-57:21, 59:19-63:4]. Specifically, he admitted that Northeast
would have relied on the K-1 (which, again, does not have a place for CPA information [12/5/23
AM (Toye) 57:22-58:13]) only if Northeast treated the applicant as a partnership. [12/5/23 (Toye)
59:19-63:4]. Based on the documents created and used by the loan reviewers, Toye admitted on
cross that Northeast treated the applicant as an LLC (or corporation), not as a partnership, and, as
result, the K-1 was not requested or relied upon for average monthly payroll (or anything else).
Id. Toye further admitted that the loan review tab of the excel spreadsheet that referenced the K-
1, misleadingly used by the government on direct, indicated that it was the “wrong tab” for this
loan and that the application would have “fail[ed]” treating HM UP as a partnership. [12/5/23 AM
(Toye) 59:19-62:20]; see Exhibit A (marked up portion of Trial Exhibit 20-3) By contrast, the
LLC/corporation loan review tab indicated it was the “correct” tab for the HM UP loan, included
the actual loan “approv[al],” and did not discuss or reference the K-1 or any other part of the 1065
tax return. [12/5/23 AM (Toye) 62:21-63:4]; see Exhibit B (marked up portion of Trial Exhibit
20-3). There is no other way to read these documents, which is all that is available to discern what
was relied upon in the approval process, with no contrary testimony on re-direct.
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contrary testimony on re-direct.4 Finally, Toye admitted that the 2020 business return was not even
listed as a suggested supporting document by Northeast. [12/5/23 (Toye) 65:18-25]. There was no
contrary testimony on re-direct. In sum, any misrepresentation about Cupersmith’s identity could
not have been “the crux,” Dubin, 599 U.S. at 127, of the fraudulent scheme to convince Northeast
Bank to approve the PPP loan application, because the form on which Cupersmith’s identifying
information appeared played no role in Northeast Bank’s approving the loan.
Cross River/Count Fourteen. The evidence for Count Fourteen is equally deficient. No one
from Revenued, the loan processor for Cross River, testified. The only witness who testified
regarding this loan, Cross River representative Spencer Lord, was not involved in, and had no
personal knowledge of, the loan application or approval. [12/5/23 PM (Lord) 72:11-15, 73:8-22].
Unlike Toye, Lord’s management role in the PPP program began only after this loan was
approved. [12/5/23 PM (Lord) 73:2-10]. Therefore, even more so than Toye for Northeast, when
Lord was pressed on AIT-related questions for what borrower materials were requested, relied
upon, or even reviewed by Cross River to fund the loan, he admitted he could not provide an
answer if it was not clearly set forth in the documents he looked at. [12/5/23 PM (Lord) 74:5-25].
As with Northeast, it is undisputed that the 1065 return (on which Cupersmith’s name
appeared) was not used to verify Sheppard’s eligibility to participate in PPP. When asked if there
were any documents showing if Cross-River even looked at the purported form 1065, Lord claimed
that there was a specific notation of this in the “UW” (for underwriter) notes section of the
documents produced by Cross-River. [12/5/23 PM (Lord) 78:13-24]. But that assertion was
thoroughly disproved on cross. The defense confronted Lord with the “UW” notes section in the
documents, and contrary to Lord’s assurance, the “UW” notes did not mention the 1065 return.
[12/5/23 PM (Lord) 110:2-111:18]; see Exhibit D (marked up portion of Trial Exhibit 21). Thus,
Lord admitted that: (1) there is no evidence that the underwriter or any other person at Cross River
read the 1065 return with Cupersmith’s identifying information, and (2) the “UW” notes confirm
that the Cross-River underwriter reviewed and relied on a different tax form (that did not have

4 As it happens, Northeast could not have performed a 2020-to-2019 revenue comparison using
1065 returns because Northeast did not have a 2019 1065 return. [12/5/23 AM (Toye 53:4-54:11].
Case 1:22-cr-20290-BB Document 205 Entered on FLSD Docket 02/02/2024 Page 10 of 21

Cupersmith’s identifying information), to substantiate average monthly payroll and thus PPP
eligibility:5
Q.
. . . I asked you isn’t it a fact that there’s no record of anyone reading the
1065 and you said no I think it would be in the UW analysis do you
remember that?
A.
Yes.
Q.
And we’re looking at the UW analysis here, correct?
A.
Correct.
Q.
And it’s not here?
A.
It’s not that – they didn’t list the 1065 out.
Q.
Is there anything in the record that [would] verify that a single person at
cross river actually read the 1065 return?
A.
Not that was specifically notated.
Q.
Okay. And again you don’t have personal knowledge, right?
A.
Right.

[12/5/23 PM (Lord) 110:17-111:6]; see Ex. D.

Spencer Lord'’s testimony that Cross-River did not rely on the 1065 form and that there is
no evidence of Cross-River even reviewing the 1065 in the approval process was unchallenged on
re-direct.6 There is also no evidence that Cross River even requested the 1065 from HMMD.7

5 There was no evidence of a loss of revenue requirement for applicants that were not applying for
their second PPP loans (or that the 1065 was used for a revenue analysis).
6 On re-direct, the government tried to confuse the jury by showing Lord a document that showed
someone looked at the 1065 return in January 2022, long after the loan was funded (and while
Cross-River was likely preparing documents for the government in this case). [12/5/23 (Lord)
121:3-123:9]; see Exhibit E (marked up portion of Trial Exhibit 21). The government used this
document to try to elicit testimony that the 1065 return had to have been reviewed in March 2021.
Id. But the only thing the document shows is that the 1065 return and other documents were
“Recent Items” viewed by someone on January 19, 2022, presumably in response to the
government subpoena. See Ex. E. Defendant requested and was denied recross examination to
clarify this for the jury. [12/5/23 (Lord) 126:23-25]. Similar documents produced by Cross River
demonstrate that the “Recent Items” viewed tab does not even have a link to any loan application.
In other words, the documents listed under “Recent Items” could be totally unrelated to the
application being viewed on the main part of the screen. See Exhibit F (Marked up portion of Trial
Exhibit 21), showing “rsm consultants sch C-TaxReturn.pdf” as a “Recent Item” on the HMMD
screen. The RSM Consultants document is not a document that was submitted for HMMD and
relates to some other loan also likely subpoenaed for another case).
7 The government tried and failed to show that Cross-River merely requested the 1065 from
HMMD: On direct, the government led Spencer Lord to say that Cross-River requested
unidentified “tax forms,” which could include 940s or 941s. [12/5/23 PM (Lord) 59:7-11]. On
cross, Spencer Lord claimed to recall from three years ago that the portal at some point (he was
Case 1:22-cr-20290-BB Document 205 Entered on FLSD Docket 02/02/2024 Page 11 of 21

As the evidence at trial shows, Cupersmith’s identifying information appeared on a form
that was not important to anyone’s approval of the PPP loan applications. His identifying
information appeared on form 1065s, but both Cross River and Northeast Bank representatives
admitted that they did not rely on the form 1065s. By definition, a defendant’s use of someone’s
name on a form that plays no causal role in a fraud cannot be the “crux” of that fraud.
b. Cupersmith’s identity played no role in the approval of the loan applications.
There is also no evidence that Cupersmith’s identity was important to the banks’
consideration of whether to approve the loan application. Cupersmith was a CPA. But the 1065
tax forms on which Cupersmith’s name appeared did not even require that a CPA be identified.
[12/5/23 AM (Toye) 50:7-52:3; 12/5/23 PM (Lord) 112:14-113-16]]. This was because the loan
processors and banks understood that not every taxpayer uses a CPA, and even when they received
returns it was in the form of copies of the returns, the original being filed with the IRS, and copies
may not have CPA information even when the originals do. Id. There thus was no testimony or
suggestion that having a CPA listed on the 1065 was material to the banks’ consideration of the
loan applications,8 and certainly no evidence that having a CPA was important to the bank’s
approval of the loan. In other words, any misrepresentation about Cupersmith’s identity most
decidedly was not the “key mover,” Dubin, 599 U.S. at 123, in Sheppard’s alleged scheme to
convince the banks to approve his loan applications.
This, too, distinguishes this case from Dubin, in which the Court held the defendant did
not commit AIT. In Dubin, there was no question that the victim patient’s name played a causal

not involved with PPP loans at the time of the application and its approval [12/5/23 PM (Lord)
73:8-10]) purportedly requested a 1065 tax return from applicants if the applicant was a
partnership, but he did not testify that Cross-River treated HMMD as a partnership for which its
1065 allegedly would have been requested (as the Court knows, and the witness admitted, HMMD
is an LLC and applied as such). [12/5/23 PM (Lord) 75:4-19]. Spencer Lord admitted that no
documents produced by Cross-River show that Cross-River requested the 2020 1065 return from
HMMD. [12/5/23 PM (Lord) 78:3-12]. On re-direct, the government improperly tried a new
approach: it led Spencer Lord to generally state for the first time, with no specifics or time frame,
that the “income tax return is one of the documents that you require” with no basis in the documents
upon which his hearsay testimony was necessarily derived. [12/5/23 PM (Lord) 124:5-8]. The
Court permitted this new testimony on re-direct and refused Defendant’s request to recross Lord
on that testimony. [12/5/23 PM (Lord) 126:20-25].
8 Unlike a regular loan application, PPP loans processors and banks were checking boxes for
required documentation, not assessing the reliability of documents. See, e.g., [12/5/23 AM (Toye)
9:22-10:8, 96:13-97:12]
Case 1:22-cr-20290-BB Document 205 Entered on FLSD Docket 02/02/2024 Page 12 of 21

role in the defendant’s fraud. The government will only approve a Medicaid claim if the claim
identifies the patient. Here, by contrast, Cupersmith’s name played no causal role in the banks’
approval of the PPP loans. And if, as in Dubin, a but-for causal relationship between the use of the
victim’s name and the fraud was insufficient to sustain an AIT conviction, then an AIT conviction
cannot be sustained here, where there is no evidence that the Cupersmith’s name was even causally
connected to the fraud.
C.
The Evidence Of AIT Was Otherwise Insufficient
The government provided no evidence of who forged Mr. Cupersmith’s signature or who
submitted the forged returns. The applicants were HMUP and HMMD, not Eric Sheppard. The
government provided no evidence that Sheppard acted alone or that he was aware what others were
doing in applying for the HMUP and HMMD loans, or that he forged Mr. Cupersmith’s name or
knew that others did. The government did not even prove the IP address from whoever submitted
the forged returns.9 Instead of providing evidence, the government asked the jury to speculate that
Sheppard did all these things, and that is what the jury did.10 Due to the absence of evidence on
the rest of the elements of Counts Thirteen and Fourteen, the Court must enter judgments of
acquittal.
II.
WIRE FRAUD CONVICTIONS
A.
A “Scheme To Defraud” Must Target A Traditional Property Interest
Under settled circuit and Supreme Court case law, a “scheme to defraud” is a scheme that,
if completed as devised, causes an economic harm or loss of property to the alleged victim. See

9 For example, Northeast does not know who submitted the forged 1065 or from which IP address
it came. [12/5/23 AM (Toye) 18:12-19:4, 49:4-11].
10 In closing argument, the government told the jury that the tax returns signed by Cupersmith lent
“credibility and reliability” to the applications, and “the means of identification . . . is to lend
credibility to his applications.” [1/11/23 AM at 78:4-15]. This was wrong, misleading, and
prejudicial. There is absolutely no evidence that the use of Cupersmith’s identity on the returns
had any impact at all on the underwriting process at Northeast or Cross-River (Counts 13 and 14),
such as by lending credibility or reliability to the applications. Because the government lacked any
evidence of same, it resorted to misleading the jury with false and unsupported statements in
closing, telling the jury what to believe. On top of that, Dubin requires more than a causal
relationship to be a “crux” of the fraud. Use of another’s identity to lend “credibility or reliability”
to an application falls well below the causal standard, let alone being anywhere near a “crux” of
the fraud. Under Dubin, even if the government’s false statements to the jury were true, it does not
rise to the level required under Dubin to be aggravated identity theft. The government’s closing
was intentionally inconsistent with the law.
Case 1:22-cr-20290-BB Document 205 Entered on FLSD Docket 02/02/2024 Page 13 of 21

United States v. Takhalov, 827 F.3d 1307, 1312 (11th Cir. 2016), as revised (Oct. 3, 2016), opinion
modified on denial of reh’g, 838 F.3d 1168 (11th Cir. 2016) (“to defraud, one must intend to use
deception to cause some injury”); see also United States v. Masino, 18-15019, 2021 WL 3235301
at *9 (11th Cir. July 30, 2021) (holding defendants were not guilty of a conspiracy to commit wire
fraud because the government had to present evidence from which a reasonable jury could
conclude that the Masinos conspired to harm the charities by deceiving them about the bargain
itself).
In Takhalov, the defendants hired women to pose as tourists, locate visiting businessmen,
and lure them into the defendants’ bars and nightclubs. 827 F.3d at 1310. The women concealed
their relationship with the clubs to persuade the men to go to the clubs. Id. In the defendants’ story,
according to the Eleventh Circuit, none of these allegedly swindled men were truly victims: they
knowingly entered the clubs, bought bottles of liquor, and drank them with their female
companions. Thus, in the defendants' view, these men got what they paid for—nothing more,
nothing less. Id. at 1311. In acquitting defendants of wire fraud, the court in Takhalov explained:
“§ 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.” Id. at 1310 (emphasis added). Thus, “[a] jury cannot convict a defendant of wire fraud,
then, based on ‘misrepresentations amounting only to a deceit[]’ . . . even if a defendant lies, and
even if the victim made a purchase because of that lie, a wire-fraud case must end in an acquittal
if the jury nevertheless believes that the alleged victims “received exactly what they paid for.” Id.
at 1314 (quoting U.S. v. Shellef, 507 F.3d 82, 108 (2d Cir. 2007)).11
Similarly, in United States v. Kachkar, 19-12685, 2022 WL 2704358, at *4 (11th Cir. July
12, 2022) (internal quotations omitted), the Eleventh Circuit held:
One can ‘scheme to defraud’ under Section 1343 only if he intend[s] to harm the
victim. And we reasoned that a defendant displays such intent if he lies about the

11 Shellef, 507 F.3d at 108 (Because “[m]isrepresentations amounting only to a deceit are
insufficient to maintain a mail or wire fraud prosecution,” we concluded that such a charge can not
apply to situations where the alleged victims “received exactly what they paid for” and “there was
no discrepancy between benefits reasonably anticipated and actual benefits received.”).
Case 1:22-cr-20290-BB Document 205 Entered on FLSD Docket 02/02/2024 Page 14 of 21

nature of the bargain itself, usually by misrepresenting the price or characteristics
of the good, so that the victim does not receive what he bargained for.12

The requirement that the scheme to defraud go to actual property harm was addressed by
the Supreme Court in Ciminelli. There, the Court emphasized that a “scheme to defraud” under
the wire fraud statute is not a scheme to deceive someone only of information needed to make
discretionary decisions about the use of money or property. Instead, “the wire fraud statute reaches
only traditional property interests.” 598 U.S. at 308.
In Ciminelli, the defendant was convicted of wire fraud for paying a former associate of
the governor of New York, who was then a lobbyist, a large fee to help rig the bidding system for
obtaining government contracts relating so that Ciminelli’s company was the only one that met the
requirements. The government argued that Ciminelli’s scheme deprived the alleged victim of its
ability to control its assets because it was deprived of potentially valuable economic information
by Ciminelli. In reversing the conviction, the Supreme Court explained that the deceptive acts in
wire fraud must be intended to affect traditional property interests, and that the rights implicated
by the alleged scheme did not involve traditional property rights but instead related to potentially
valuable information necessary to make discretionary economic decisions, such as, in this case,
information about whether the workers were W-2 employees. Such interests, however, are not
protected by the wire fraud statute.
B.
The Government Did Not Prove That Sheppard’s “Scheme” Was Designed
To Harm A Traditional Property Interest
The government has identified two potential victims of Sheppard’s alleged fraud: the banks
who made the PPP loans and the SBA. The SBA cannot be considered a victim because the
government’s “SBA as victim” theory varies from the Indictment, creates counts that are
multiplicitous because they allege multiple victims, and contradicts its own admission in the
middle of trial. [Motion at 18; D.E. 152 at 1; 12.4.23 AM 48:18-49:7]. Nevertheless, neither of the
government’s theories make out a viable theory of wire fraud because the government has not
proved a scheme designed to cause harm to a traditional property interest.

12 The Defendant submitted a proposed jury instruction on these points, but the Court rejected it
and, over the Defendant’s objection, used an instruction that permitted the jury to convict based
on only an intent to deceive.
Case 1:22-cr-20290-BB Document 205 Entered on FLSD Docket 02/02/2024 Page 15 of 21

The SBA. We begin with harm to the SBA because that appears to be the government’s
primary theory. Sheppard’s wire fraud convictions cannot be sustained based on the SBA because
any harm that could have been suffered by that government agency was not to a “traditional
property interest.” Ciminelli, 598 U.S. at 309. Instead, the SBA’s harm, to the extent it could suffer
one, is purely “regulatory,” and regulatory interests are not protected by the wire fraud statute
because that statute “protects property rights only.” Cleveland v. United States, 531 U.S. 12, 19-
20 (2000); see also Kelly v. United States, 140 S. Ct. 1565, 1573 (2020) (“a scheme to alter [a
governmental] regulatory choice is not one to appropriate the government’s property”).
The SBA’s PPP witness, Ms. Althea Harris, admitted that the SBA suffers only a regulatory
harm when ineligible PPP loans are approved. Ms. Harris explained that the purpose of the PPP
eligibility criteria, including the requirement that the applicant pay W-2 wages, is not financial,
i.e., to increase the likelihood of repayment; rather, the eligibility criteria that Sheppard allegedly
misrepresented are designed to implement the government’s policy interests favoring (among other
things) traditional employment relationships. [11/28/23 AM (Harris) 5:1-18, 88:12-89:20, 91:18-
93:23]. But as Cleveland and Kelly teach, the government’s regulatory interests are not protected
by the wire fraud statute, so any scheme that would cause harm to the government’s regulatory
interest in ensuring that traditional employers receive PPP loans cannot form the basis for
Sheppard’s wire fraud conviction.13
Beyond Ms. Harris’s admission that the SBA’s interest here is purely regulatory, the
evidence shows that the fraud could not have caused harm to a traditional property interest, e.g.,
pecuniary harm. The SBA had no financial stake in these loans. The evidence was that Congress
allowed the SBA to allocate US Treasury funds to be made available to guarantee each PPP loan,
not that the SBA spent its own money, or allocated its own money, in this process. [11/28/23 AM

13 Moreover, the government and its witnesses agreed that the 1099 workers were eligible to
receive PPP funds. The government’s position was that the 1099 workers had to apply themselves.
There is no wire fraud if the same objective could have been accomplished making only immaterial
changes—multiple loan requests instead of one loan request. The government failed to put on any
evidence of any harm caused by Defendant’s companies applying for the 1099 workers, instead of
having them all apply individually. For example, the government failed to put on any evidence
that any of the workers who were paid by Defendant’s companies or who were included in the
average monthly payroll calculations for Defendant’s companies, separately received PPP funds
and thus obtained double recovery. For this additional reason, the government failed to establish
any harm caused by Defendant.
Case 1:22-cr-20290-BB Document 205 Entered on FLSD Docket 02/02/2024 Page 16 of 21

(Harris) 5:1-18]. The SBA was an intermediary, playing a role in setting up the rules and making
decisions about allocating funds in the United States Treasury. [11/27/23 (Harris) 211:4-7, 212:9-
18, 214:2-7; 11/28/23 AM (Harris) 38:4-5]. There is thus no evidence the SBA’s own finances
were at play. In this respect, the SBA is no different than a broker who sets up a loan guarantee in
which the broker has no financial exposure on the guarantee. No one would say the broker is a
victim of wire fraud because the broker’s traditional property interests are not implicated in the
loan. So too here. Because there was never a possibility that the SBA would suffer a harm to a
traditional property interest—e.g., that it would go into its own coffers for PPP loans—the SBA
could not be a victim of the wire frauds charged in Counts Five, Seven, Eight, and Nine.14
In addition, the government provided no evidence Sheppard made the allegedly false
representations to the SBA in connection with the loans. Thus, there was insufficient evidence to
determine the SBA was a victim related to these charges given the necessity of convergence.
Convergence requires that the party who is deceived must be the same as the party that is defrauded
of money or property. The Eleventh Circuit recognizes the necessity of convergence: “Mail and
wire fraud, just like common law fraud, … entail an intention to induce the victim to act or to
refrain from action in reliance upon the misrepresentation.” United States v. Bradley, 644 F.3d
1213, 1239 n.58 (11th Cir. 2012) (emphasis added); United States v. Bailey, 123 F.3d 1381, 1390
n.12 (11th Cir. 1997). In fact, the charges specified that the representations were made to the loan
processors, not to the lenders or the SBA. The SBA was two levels removed from the
representations, while even the lenders were one level removed.
The Banks. The government pivoted away from a “banks as victim” theory because it fails
under settled law. The banks themselves did not suffer a harm to a traditional property interest
because they “receive[d] what [t]he[y] bargained for.” Kachkar, 2022 WL 2704358, at *4. They
made a loan, guaranteed by the government, on which they had no financial exposure. [See

14 The government has not paid funds, and the government may never pay funds. The wire fraud
statute requires a scheme that is designed to deprive the victim of property. But even with the
successful Northeast and Cross-River loans, the government did not lose any property. Funding
came from Northeast and Cross-River, not the U.S. Treasury. [11/27.23 (Harris) 211:19-212:4].
HM UP and HMMD did not seek forgiveness and they have been paying back the loans, as per the
loan documents. [1/8/24 (Sheppard) 11:6-24]. The possibility that the U.S. Treasury (not charged
as a victim) may have to pay any funds is entirely theoretical. As with the SBA, if there was some
inchoate harm to the US Treasury if the PPP loan went to a company with 1099 workers, instead
of W-2 employees, it is a policy harm not an economic harm.
Case 1:22-cr-20290-BB Document 205 Entered on FLSD Docket 02/02/2024 Page 17 of 21

11.27.23 AM Trial Tr. 214:2-13]. Sheppard’s alleged misrepresentations about PPP eligibility
were not material to the financial risk of the transaction because those eligibility criteria were
meant only to implement government policy interests. Indeed, by making the loans to Sheppard,
the Banks could realize only financial benefit—they stood to gain fees for making the loans—and
faced no potential financial harm from issuing a PPP loan to a borrower later determined to have
been ineligible. [12/28/23 AM (Harris) 83:9-11].
The government’s “banks as victims” theory thus fails under cases like Takhalov.
Sheppard may have induced the banks to make PPP loans that they “otherwise would have
avoided” because he allegedly did not meet various program eligibility criteria, but that is
“insufficient to show wire fraud.” 827 F.3d at 1310 (quotations omitted). Under controlling law,
“a schemer who tricks someone to enter into a transaction has not ‘schemed to defraud’ so long as
he does not intend to harm the person he intends to trick.” Id. at 1313. Here, the government offered
no evidence that Sheppard’s alleged scheme would harm the banks’ property interests—as
established above, they stood only to gain financially by making the loans. Sheppard thus did not
commit wire fraud.15
C.
The Evidence Of Wire Fraud Was Otherwise Insufficient
First, the only evidence about what Sheppard did or knew for Counts Five, Seven, Eight,
and Nine came from Sheppard, whose testimony does not support the wire fraud convictions.
While the jury is free to discount Sheppard’s testimony, the government offered no alternative
testimony to support the conviction, and the jury was not free to fill in the gaps with speculation.
Specifically, the wire fraud charges involved the submission of purported 940, 941, and 1065
forms, of which there was no testimony or evidence (and no IP address) that connected them to
Sheppard.16 The only evidence the government was able to muster on Sheppard’s alleged
involvement in the 941s came from Graff’s speculative and unsupported testimony. The
government used Graff as its pseudo-handwriting expert. Graff was shown handwriting on several

15 The banks also cannot be victims due the lack of convergence, discussed above. The evidence
is the representations were made to multiple (six) loan processor companies—not to the banks.
16 There was undisputed evidence that Mr. Jeff Vasilas forged Sheppard’s name on other
documents, including a personal guarantee for Sheppard. [01/08/24 Tr. (Sheppard) 54:24-56:16];
see composite Exhibit G (marked up Trial Exhibits X-47-1 and X-47-2). There was also
undisputed evidence that Vasilas used DocuSign to execute at least one contract from Sheppard’s
home IP address. See Exhibit I (marked up portions of Trial Exhibit X-32).
Case 1:22-cr-20290-BB Document 205 Entered on FLSD Docket 02/02/2024 Page 18 of 21

941s. When asked to identify handwriting on the 941s, he identified some as Sheppard’s, some as
not looking “overly” like Sheppard’s, some as completely different from Sheppard’s, and
seemingly everything in between. [12/6/23 Tr. 58:4-59:13]. It was the same kind of speculative
testimony regarding the handwritten numbers on these forms: “some of the numbers look
consistent with [Defendant’s] handwriting.” [12/6/23 Tr. 59:14-15]. Sheppard was convicted of
Count 5, which charged him with transmitting by wire the 941s referred to in the above cited
testimony. As a matter of law, Graff’s unsupported, inconsistent, and speculative testimony about
Sheppard’s handwriting should be rejected by this Court as insufficient evidence of guilt beyond
a reasonable doubt. Graff is not a handwriting expert and he all but admitted he was speculating
on this topic. His haphazard identifications of handwriting and signatures, as a lay witness, should
have been stricken and cannot provide sufficient evidence on which a conviction can stand.17
As to the purported 1065 forms (which is the only basis for the Count Eight wire fraud
charge), there was no evidence that the forms were material in any way. While the standard for
materiality in wire fraud is lower than the Dubin “crux” standard for AIT, the materiality test still
requires that the statement has “a natural tendency to influence, or [is] capable of influencing, the
decision of the decision making body to which it was addressed.” United States v. Boffil–Rivera,
607 F.3d 736, 741 (11th Cir. 2010). There was no evidence of this. As discussed in greater detail
above, the evidence is that the 1065s were irrelevant to the PPP loan applications which is why
they were not even consulted in the approval process. For the jury to conclude that the 1065 forms
had “a natural tendency to influence, or [is] capable of influencing, the decision of the” PPP
lenders, the jury had to disregard all the evidence that the lenders ignored these forms in favor of
their own speculation.
In addition, Count Nine alone charged the submission of a portal application (for Cross-
River) on March 12, 2021, which contained an IP address to the home office. But the government
failed to put on any evidence that Sheppard was the person who filled out the information from his
home office on that date.18 Notably, the portal application to PayPal on January 19, 2021, charged

17 Graff, a lay witness, should not have been permitted to testify as to Sheppard’s handwriting at
all. The government never laid a proper foundation (required by the Court’s order on the 404(b)
notice) before eliciting his speculative testimony about all the different types of handwriting he
was shown. See Defendant’s motion for new trial at [D.E. 204].
18 The government’s own witness, Maria Ataca, established the existence of the home office and
that individual other than Sheppard used it, including Jeff Vasilas. [12/06/23 AM Tr. (Ataca) 57:2-
Case 1:22-cr-20290-BB Document 205 Entered on FLSD Docket 02/02/2024 Page 19 of 21

in Count Four, also came from the same home office IP address (Trial Exhibit 19-2), supposedly
linking Sheppard to it, but the jury found the Defendant Not Guilty. As for Count Eight, which
charges Sheppard with submission of a portal application to Northeast on March 11, 2021, the
government does not even have IP address evidence linking this to Sheppard’s home office, let
alone proving Sheppard was the one who submitted it. Unwilling or unable to present evidence
tying this to Sheppard, the government improperly invited the jury to speculate on Sheppard’s
involvement, necessitating the entry to judgment of acquittal on the wire fraud counts.
There is another hole in the government’s case. The government argued throughout trial
and closing that the requirement for PPP loans was for the applicant to file W-2’s, not 1099s, for
workers. But that is not the rule. The rule is that the workers cannot be “independent contractors,”
regardless of how the applicant classified (or misclassified) them. See Exhibit H (Trial Exhibit O-
1). The government never proved that the various workers were not bona fide “employees,” as
opposed to “independent contractors.” The government’s IRS expert testified to challenges in
determining if a worker should be classified as an “employee” or “independent contractor” under
the IRS common law test [11/29/23 AM (Palmer) 22:6-23:4, 23:24-25:24, 26:23-27:4] a burden
the government made no effort to meet. Although the government called an IRS expert witness
(mostly for the improper admission of prejudicial, uncharged alleged tax related violations), the
government did not ask its IRS expert witness to opine whether the workers were bona fide
“employees.” For this additional reason—because there was no evidence that the workers were
not, in fact, bona fide “employees” and the government presented and argued a false theory of
liability to the jury instead—a judgment of acquittal must be entered on the wire fraud counts.
In the absence of evidence, the government filled in gaps by asking the jury to speculate
and otherwise engaging in prosecutorial misconduct by fabricating evidence that did not exist, as
discussed in further detail in Defendant’s motion for new trial at [D.E. 204].
CONCLUSION

For the reasons set forth above, Defendant Eric Dean Sheppard respectfully requests that
the Court enter judgment of acquittal on all counts of conviction.

16; 61:12-63:10]. Witnesses like Ms. Ataca showed the hole in the government’s case, which the
government never filled, resorting to speculation in the absence of evidence.
Case 1:22-cr-20290-BB Document 205 Entered on FLSD Docket 02/02/2024 Page 20 of 21

Dated: February 2, 2024.

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 February 2, 2024, the foregoing document was filed via the
Court’s CM/ECF system to all counsel of record.
By: /s/ Jayne C. Weintraub
Jayne C. Weintraub

Case 1:22-cr-20290-BB Document 205 Entered on FLSD Docket 02/02/2024 Page 21 of 21

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MOTION for Acquittal by Eric Dean Sheppard. Responses due by 2/16/2024 — USA v. SHEPPARD (Dkt. 205)

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