Response in Opposition by USA as to Eric Dean Sheppard — USA v. Sheppard (Dkt. 215, S.D. Fla.)

Record facts

U.S. District Court for the Southern District of Florida · No. 1:22-cr-20290-BB · Doc. 215 · 2024-02-26 · Docket on CourtListener

Full text

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UNITED STATES DISTRICT COURT 
SOUTHERN DISTRICT OF FLORIDA 
 
CASE NO. 22-20290-CR-BLOOM(s) 
 
UNITED STATES OF AMERICA,  
 
             Plaintiff, 
 
vs. 
 
ERIC DEAN SHEPPARD, 
 
 
Defendant. 
 
 
 
  _______          / 
 
GOVERNMENT’S RESPONSE IN OPPOSITION 
TO DEFENDANT’S MOTION FOR NEW TRIAL 
 
 
The United States of America, through the undersigned Assistant United States Attorney, 
submits this response in opposition to the defendant’s motion for new trial pursuant to Fed. R. 
Crim. P. 33(a).  The defendant’s motion for new trial should be denied for the reasons set forth in 
the following memorandum of law. 
LEGAL STANDARD 
 
Federal Rule of Criminal Procedure 33(a) states that “[u]pon the defendant’s motion, the 
court may vacate any judgment and grant a new trial if the interest of justice so requires.”   “‘When 
considering a motion for a new trial, the district court may weigh the evidence and consider the 
credibility of the witnesses.’”  United States v. Brown, 934 F.3d 1278, 1297 (11th Cir. 2019) 
(quoting United States v. Albury, 782 F.3d 1285, 1295 (11th Cir. 2015)).  “A motion for a new trial 
based on the weight of the evidence is ‘not favored’ and is reserved for ‘really exceptional cases.”  
Brown, 934 F.3d at 1297 (quoting United States v. Martinez, 763 F.2d 1297, 1313 (11th Cir. 1985)).   
“The court may not reweigh the evidence and set aside the verdict simply because it feels some 
other result would be more reasonable.”  Martinez, 763 F.2d at 1312-13.  “[T]o warrant a new trial, 
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the evidence must preponderate heavily against the verdict, such that it would be a miscarriage of 
justice to let the verdict stand.”  United States v. Witt, 43 F.4th 1188, 1194 (11th Cir. 2022); Brown, 
934 F.3d at 1297; Martinez, 763 F.2d 1313.  The Eleventh Circuit has explained, that “‘[i]n 
evaluating whether specific trial errors warrant a new trial, we apply the harmless-error standard.’”  
United States v. Jefferson, 824 Fed. Appx. 634 (11th Cir. 2020) (quoting United States v. Jeri, 869 
F.3d 1247, 1259) (11th Cir. 2017) (a civil case)); see Fed. R. Crim. P. 52(a) (defining harmless 
error standard as requiring that “[a]ny error, defect, irregularity, or variance that does not affect 
substantial rights must be disregarded.”). 
ARGUMENT 
I. 
The Court did not err in its ruling to admit the Rule 404(b) evidence. 
 
The defendant makes a number of accusations that were previously litigated by the parties 
and ruled upon by the Court.  The defendant argues that (1) the government misrepresented Jeffrey 
Graff’s expected testimony regarding the Rule 404(b) evidence; (2) the government “completely 
changed its story” in its reply filing on the Rule 404(b) notice; (3) Mr. Graff’s testimony was 
speculative as to the forgeries; (4) the defense was precluded from fully cross-examining Mr. Graff 
about his testimony; and (5) the evidence was highly prejudicial and did not meet the standard 
under Rule 404(b), nor was the evidence inextricably intertwined with the case.   
First of all, this matter was extensively litigated before the trial, and during the trial.  On 
September 15, 2023, the government filed its Rule 404(b) notice (DE 77).  The defendant then 
filed his response in the form of a motion in limine to exclude the Rule 404(b) evidence (DE 113).  
The government filed a reply to the defendant’s response (DE 116), and the defendant filed his 
own reply (DE 118).  On November 9, 2023, the Court issued an order denying the defendant’s 
motion in limine to exclude the Rule 404(b) evidence (DE123). 
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The government relies on its Rule 404(b) notice (DE 77), which was accurate, and on its 
reply (DE 116), in which the government explained that it learned of additional and clarifying 
information from Mr. Graff after it filed its initial Rule 404(b) notice.  Mr. Graff always maintained 
that his name was used as an authorized representative of HM Management, and that his signature 
was forged on certain documents, without his knowledge or consent.  The government explained 
in its reply that after filing the Rule 404(b) notice, it learned from Mr. Graff of his decision to be 
removed as an officer from the defendant’s companies, which the government believes was 
“inextricably intertwined” evidence relating to Mr. Graff’s employment history with the defendant.  
Also in the government’s reply, the government noted that after filing the Rule 404(b) notice, Mr. 
Graff provided an “engagement letter” with his name and forged signature as the person who hired 
the law firm for the visa application process.  Mr. Graff discussed the handwriting of the forgeries 
with the government, explaining that the defendant’s handwriting was reflected on the engagement 
letter signature, but that the forged signatures on the other Visa documents did not reflect the 
defendant’s handwriting.  Mr. Graff, having known the defendant most of his life, and having 
worked alongside him for 20 years, would testify not only about the forgeries, but that the 
defendant’s staff (which consisted of three people besides Mr. Graff), would have only signed Mr. 
Graff’s name on the visa documents at the defendant’s direction.  DE 116 at 1-3, 7-8.    
The government’s evidence was also expected to include a letter the defendant wrote to the 
law firm after Mr. Graff learned of these events that constituted admissions of the defendant about 
his misuse of Mr. Graff’s name, as well as his efforts to blame his staff for what he had done.      
This Court issued a thorough 17-page order that analyzed all of the arguments made by the 
defendant.  The Court did not base its ruling on finding the evidence to be inextricably intertwined.  
Instead, the Court carefully weighed the factors for admitting the proposed Rule 404(b) evidence:  
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its relevance, whether there was sufficient proof to allow the jury to find that the defendant 
committed the extrinsic acts, and whether the probative value of the evidence outweighed the 
danger of unfair prejudice.  The Court committed no error when it ruled that the proposed Rule 
404(b) evidence was admissible under Eleventh Circuit precedent on the issue of the defendant’s 
intent.  DE 123. 
During trial, the defense declined the Court’s offer to provide the jury a cautionary 
instruction regarding the Rule 404(b) evidence before they heard the actual evidence from Mr. 
Graff.  Tr. 12/6/23 AM, at 4-5, 9-10.  The defendant invited some of the perceived prejudice he 
complains about here by refusing the Rule 404(b) cautionary instruction to accompany Mr. Graff’s 
testimony. 
Mr. Graff testified on direct examination about his lifelong relationship with the defendant: 
that he and the defendant had been friends since age 7, attended grade school and summer camps 
together, were best friends, college roommates, and worked alongside each other for 20 years, 
between 2000 and 2020. Tr. 12/6/23 PM, at 3-5.  Mr. Graff testified that he had been able to 
observe the defendant’s handwriting and signature hundreds of times, and that the defendant 
signed the checks made out to him or to his company.  Mr. Graff identified the defendant’s 
handwriting and signature on trial exhibits that the government showed him, particularly bank 
checks and withdrawal tickets, and he identified the company’s bookkeeper, Jeanette Gonzalez’s 
version of the defendant’s signature on bank records.  Id. at 52-60.  All of this testimony occurred 
before the government asked Mr. Graff about his signature on the Rule 404(b) evidence, 
specifically the engagement letter.  Id. at 63-66, 78; Govt Exh. 50-1.   
Mr. Graff’s testimony showed that no one was more qualified to testify about the 
defendant’s handwriting and signature than Mr. Graff.  Ignoring the testimony, the defendant 
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argues that Mr. Graff “baselessly speculated that he believed Defendant forged his signature” on 
the engagement letter.  DE 204 at 4. The defendant’s argument apparently is based on the fact that 
Mr. Graff did not see the defendant forge his signature on the engagement letter.  Id. at 5.1  Mr. 
Graff testified he learned of this 2018 incident in 2019.  That was the point of the Rule 404(b) 
evidence:  that the defendant misused Mr. Graff’s name and forged his signature behind his back, 
and he had others sign for Mr. Graff, without his knowledge or consent, which was relevant to the 
defendant’s intent, knowledge and absence of mistake when it came to the forged documents in 
this case.    
Government Exhibit 50-2, a notice of appearance before the Citizenship and Immigration 
Service, was the other document admitted in evidence, which listed Mr. Graff, on behalf of HM 
Management, as the visa petitioner with his purported signature.  Mr. Graff testified that his name 
was forged on that document, that he did not authorize anyone at HM Management to sign for him, 
that he did not recognize the handwriting on the signature, and that he was not aware of others 
working at HM Management who would sign his name without his permission.  Tr. 12/6/23 PM, 
at 68-74.  In his testimony, Mr. Graff identified the people who worked for HM Management in 
2018, which were Jeanette Gonzalez, the defendant’s longtime bookkeeper and office manager, 
her daughter Vanessa Gonzalez, a part-time worker “Mary” and “Elba,” who did not come to the 
office.  Id. at 28-29.  When asked specifically about Jeanette and Vanessa Gonzalez, Mr. Graff 
said that he had never observed them perform any tasks they were not authorized to perform by 
the defendant.  Id. at 50-51.  Mr. Graff further testified that Jeanette Gonzalez would not “go 
 
1 The defendant’s brief replaced with ellipses ( . . .) the following question and answer: 
Q:  And so you couldn’t say that for sure he signed your name, right? 
A:  I didn’t see him sign the document. 
Tr. 12/11/23, at 122; DE 204, at 5. 
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rogue” by performing tasks the defendant had not authorized her to undertake.  Id. at 50.   
Mr. Graff read portions of a letter the defendant wrote to the immigration attorney in which 
the defendant admitted that he had “complete and unwavering authority to make all decisions and 
bind the company,” that the sponsoring of the work visa was through his “approval and full 
authority,” that the appearance of Mr. Graff’s name on the engagement letter was “inadvertent,” 
and the appearance of Mr. Graff’s name on the visa documents was the result of carelessness by 
the defendant’s office staff.  Id. at 77-79; Govt. Exh. 50-5.  The jury was also shown an email that 
the immigration attorney sent Mr. Graff in March of 2019, explaining that in the “2018 email 
correspondence between us, Mr. Sheppard, Ms. Ahumada and Ms. Jeanette Gonzalez of HM 
Management, you [referring to Mr. Graff] were always portrayed as the authorized representative 
of the petitioning employer for representations made under penalty of perjury and the authorized 
representative of the Company for engagement of legal services purposes.”  Govt. Exh. 50-4, Tr. 
12/12/23, at 33-34, 38-39.  From this evidence, a reasonable jury could conclude that the forgeries 
on the visa documents were carried out at the defendant’s direction.   
The defendant complains that the defense was prevented from cross examining Mr. Graff 
about an incident involving Scott Fish to point out that people did “go rogue” while working for 
the defendant.  DE 204 at 6.  The Court properly sustained the government’s relevance objections 
to questions about Mr. Fish, whom the defense introduced to the jury as the “project executive at 
Orlando from 2010 to 2014.”  Tr. 12/11/23, at 141.  Mr. Graff had testified about Ms. Gonzalez 
not going “rogue”; she worked for the defendant in 2018 when the events at issue occurred, and 
she worked at the HM Management office, the business on whose behalf the forged documents 
were prepared.  What Mr. Fish might have done years earlier in connection with a project in 
Orlando had no relevance to the events at HM Management in 2018.   
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Notwithstanding the defendant’s baseless smear that Mr. Graff committed tax fraud,2 Mr. 
Graff’s unimpeached testimony, corroborated by the government’s exhibits referenced above, 
established by a preponderance of the evidence, the events set forth in the government’s Rule 
404(b) notice and its reply (DE 77, 116).   The defendant’s defense was that others who worked 
for him, such as Jeanette Gonzalez and Jeffrey Vasilas, prepared and submitted false and forged 
documents in support of his loan applications, and that they did so without his knowledge.  The 
Rule 404(b) evidence was highly probative of the defendant’s intent, knowledge and absence of 
mistake in this case.  Any error in admitting this evidence should be considered harmless because 
the evidence of the defendant’s direct involvement in the fraud was overwhelming.  
II. 
The Court did not err by admitting evidence of false loan applications that were part of 
the defendant’s scheme to defraud, but were not specifically set forth as individual wire 
fraud counts.__________________________________________________________ 
 
The defendant claims that the Court erred in admitting evidence of what he refers to as 
“uncharged loans.”  The Court did not err, as the so-called “uncharged loans” were part of the 
defendant’s scheme to defraud.  They constituted evidence that was intrinsic to the Superseding 
Indictment, which charged a scheme to defraud the private lenders and the SBA by submitting 
false information and documents in order to be approved for loans to which the defendant was not 
entitled, under the Paycheck Protection Program and the Economic Injury Disaster Loan program.  
It is not credible for the defendant to claim surprise.  The defendant had notice of these loan 
 
2   DE 204 at 12.  During cross examination of Mr. Graff, the defense falsely suggested that Mr. 
Graff was cheating on his taxes by underreporting his “salary” to the Florida Department of 
Revenue.  Tr. 12/11/23, at 54-55; Govt Exh 16-3.  On redirect examination, Mr. Graff was able to 
explain that because he was considered self-employed through his company, Graffco, he paid 
himself a salary/wages from the payments Graffco received from HM Management, which salary 
is the portion he was supposed to report to the Florida Department of Revenue.  As to all payments 
that Graffco received from HM Management, which included portions he treated as his salary and 
portions he deemed to be profits, Mr. Graff testified that he reported those payments to the IRS as 
income and paid the taxes he owed.  Tr. 12/11/23, at 164-65; Tr. 12/12/23 AM, at 16-18. 
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applications from the original Indictment, from the extensive discovery the defendant received 
about them, and from their listing as trial exhibits. 
The original Indictment charged a scheme to defraud spanning approximately from April 
2020 through in and around March 2021, and the acts in execution of the scheme were six wire 
fraud counts, one for each of the loans that was funded (DE 3).  The Indictment included wire 
fraud counts for a PPP loan application from Alafaya Trails to PayPal/ WebBank submitted on 
April 15, 2020, and two EIDL loan applications submitted to the SBA on the same day, July 24, 
2020, on behalf of HM Management and Alafaya Trails.  The Superseding Indictment charged the 
same scheme during the same approximate time period, but removed three wire fraud counts (the 
April 15, 2020 PPP application, and the two July 24, 2020 EIDL applications), and added six wire 
fraud counts that focused on false loan applications with supporting documents that contained 
forgeries and reflected the unauthorized use of others’ identities (DE 60).  The three loans did not 
disappear from the case by virtue of being removed as wire fraud counts from the Superseding 
Indictment.   
The other “uncharged” loans for which evidence was admitted during the trial involved 
three EIDL applications that were denied:  two additional EIDL applications that were also 
submitted on July 24, 2020, made on behalf HM-UP Development Alafaya Trails, TRU (“Alafaya 
Trails, TRU”) and Sheppard Flagler Holdings; the September 20, 2020 HM Six EIDL application; 
and the three “modifications” or loan increases from the three EIDLs that were funded on behalf 
of HM Management, Alafaya Trails and HM Four.3  The companies whose loan applications were 
 
3 The defendant did not have to submit new applications to the SBA for the loan modifications.  
The defendant’s companies that received the initial $150,000 EIDLs were automatically eligible 
to be considered for the modifications, which were loan increases of up to $500,000.  The 
defendant authorized the modification requests for HM Management and Alafaya Trails, on April 
27, 2021, and for HM Four on May 4, 2021.  Tr. 12/13/23 PM, at 9-12; 12/14/23 AM, at 5-7, 59; 
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not specifically mentioned in the Indictment or the Superseding Indictment were related to the 
ones that were, and in some instances, were part of the same series of events, such as the four 
EIDL applications that were submitted to the SBA on the same day.  All were intrinsic to the 
charged scheme to defraud.   
Evidence of criminal activity other than the offense charged is intrinsic to the offense 
provided that the evidence is (1) an uncharged offense which arose out of the same transaction or 
series of transactions as the charged offense, (2) necessary to complete the story of the crime, or 
(3) inextricably intertwined with the evidence regarding the charged offense.”  United States v. 
Ellisor, 522 F.3d 1255, 1269 (11th Cir. 2008) (quoting United States v. Jiminez, 224 F.3d 1243, 
1249 (11th Cir. 2000); United States v. Williford, 764 F.2d 1493, 1499 (11th Cir. 1985); see also, 
United States v. Jeanty, 358 Fed. Appx. 55, 58 (11th Cir. 2009).   All three factors apply to the loan 
applications the defendant is complaining about.   
The Superseding Indictment charged a scheme to defraud starting in or around April 2020, 
but the first wire fraud count in the Superseding Indictment had a date of October 22, 2020.  Surely 
the defendant did not think the government was going to charge a scheme to defraud starting in 
April 2020, but ignore all of the loans and loan applications for which the defendant had received 
extensive discovery that predated the HM Four application of October 22, 2020.  In fact, at trial, 
the defense did not object to the testimony and documents that were admitted involving the April 
15, 2020 PPP loan application to PayPal/ WebBank.  See Tr. 11/29/23 PM. 
The documentary evidence and testimony from Ms. Nelia Palancar with Nationwide 
showed that four of the EIDL applications (for HM Management, Alafaya Trails, Alafaya Trails 
 
12/14/23 PM, at 78; Govt Exhs. 52-1, at 4; 54-4, at 7; 58, bates no. 31224; 68, bates 34852-34853.  
The SBA processed the initial EIDL applications and the modifications under the same loan 
application numbers.  
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TRU and Sheppard Flagler Holdings) were submitted by the defendant via Nationwide to the SBA 
on the same day – July 24, 2020.  The defendant’s dealings with Ms. Palancar related to all four 
companies.4  In addition, all of the companies for which the defendant submitted loan applications 
were related to each other, or the defendant intermingled them in the applications.  For instance, 
HM Six was the owner of CJUF III Flagler, a company the defendant included in the April 2020 
Alafaya Trails PPP application to PayPal, and for which the defendant himself introduced evidence 
(such as a PPP application in the name of CJUF III Flagler that the defendant claimed he submitted 
to PayPal as a correction to the initial application information).  Sheppard Flagler Holdings held 
the defendant and his wife’s ownership interest in HM Six, and its EIDL submission to Nationwide 
listed Sheppard Flagler Holdings with a trade name of “HM Six/CJUF Flagler.”  Gov. Exh. 64, 
bates no. 033925.  Alafaya Trails TRU owned real estate that it transferred to Alafaya Trails for 
the Orlando shopping center. Govt. Exh. 3-2.  Finally, HM Management was the management 
company for Alafaya Trails and CJUF III Flagler.  Tr. 12/6/23 PM, at 18; Govt. Exhs. 23-1, 23-2. 
All of the loan applications were submitted to the lenders or to the SBA within the time 
frame set forth in the Indictment and the Superseding Indictment, except for the modifications, 
which were not new loan applications, but a continuation or a second phase of the initial EIDLs 
awarded to HM Management, Alafaya Trails, and HM Four.  All of the loan applications were 
inextricably intertwined with evidence about the loans that were specifically mentioned in the 
Superseding Indictment, and they were related to each other factually and in time.  They were also 
necessary to complete the story of the defendant’s scheme to defraud.  For instance, the SBA 
 
4  In fact, there was a text message from the defendant to Ms. Palancar that was shown to 
the jury in which the defendant told Ms. Palancar:  “I tried to fill out the 4 applications yesterday 
and submit them.  Let me know if you received them yet.”  Govt. Exh. 68, bates no. 034810. 
 
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notified the defendant that the HM Six application was denied on October 20, 2020, using strong 
language that it questioned the validity of information he had provided with the application.  Govt 
Exh. 57, bates no. 31075.  Two days later, on October 22, 2020, the defendant submitted an EIDL 
application on behalf of HM Four under his wife’s name.  Govt Exh. 58, bates nos. 31145-31148.   
The defendant complains that the government did not file a Rule 404(b) notice, but such a 
notice is not required for intrinsic evidence.  See Jeanty, 358 Fed. Appx. at 58 (Rule 404(b) “notice 
provision does not apply when the prior bad acts are intrinsic to the charged offense.”).  The 
defendant in this case received ample notice that evidence of these related loan applications would 
be part of the government’s case, both from the discovery the defendant received about them, and 
from the government’s exhibit lists and witness lists. 
The government’s discovery regarding these loan files consisted of the following: 
• 
Discovery production of August 2, 2022, almost 16 months before the start of the 
trial, which contained the PPP loan documents, including the loan of April 2020 to 
PayPal/WebBank, and it contained SBA’s EIDL records for the July 24, 2020 loan applications on 
behalf of HM Management and Alafaya Trails, the October 22, 2020 loan application on behalf of 
HM Four, as well as the loan modification records for those three EIDLs that were funded (HM 
Management, Alafaya Trails, and HM Four).  DE 25.  
 
• 
Discovery production of June 9, 2023 (almost six months before the start of the 
trial), which reproduced the SBA EIDL records, organized by loan file, and included the four 
additional EIDL files for the loan applications that were not approved.  These were: the July 24, 
2020 applications from Alafaya Trails, TRU and Sheppard Flagler Holdings; the September 2020 
HM Six application; and the September 2021 HM Six application (not admitted at trial).  DE 47. 
 
• 
Discovery production of September 12, 2023, which included Cupersmith’s copy 
of the HM Six tax return for 2019, and the records from Nationwide Lending Direct, consisting of 
loan files for EIDL applications that the defendant submitted using Nationwide (and which were 
previously produced as SBA loan files):  HM Management, Alafaya Trails (and their loan 
modifications); Alafaya Trails, TRU; and Sheppard Flagler Holdings.  DE 75. 
 
• 
Discovery production of September 15, 2023, which included additional 
Nationwide records for the loan files identified in the discovery of September 12, 2023, and the 
email communications between Ms. Palancar from Nationwide and the defendant about the EIDL 
applications she handled on the defendant’s behalf.  DE 80. 
 
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• 
Discovery production of October 10, 2023, which included a deed between Alafaya 
Trails, TRU and Alafaya Trails involving land at the Orlando shopping center.  DE 117. 
 
• 
Discovery production of November 15, 2023, which included text messages 
retrieved from Ms. Palancar’s cell phone with the defendant about the EIDL applications she 
handled on the defendant’s behalf.  
   
On September 19, 2023, the government filed a detailed exhibit list and its witness list.  DE 
97, 98.  The government’s witness list included the PayPal witness, two SBA witnesses, and Ms. 
Palancar from Nationwide.  The government’s exhibit list identified the PayPal loan records for 
the Alafaya Trails April 2020 PPP loan application, broken down document by document 
(Composite Exh 17, and Exh. 17-1 through 17-13).  As for the EIDL records, the exhibit list 
included the SBA EIDL records, some of which were broken down by company applicant:  HM 
Management EIDL records, including the modification (Composite Exhibit 23, and 23-1 through 
23-7); Alafaya Trails EIDL records, including the modification (Composite Exhibit 24, and 24-1 
through 24-7); HM Four EIDL records, including the modification (Exh. 26, 26-1 through 26-14); 
and HM Six EIDL records (Exh. 25, 25-1, 25-2).  It also listed Nationwide’s records (Composite 
Exhibit 49, and 49-1 through 49-3).   In the government’s amended exhibit list of November 13, 
2023, the government listed the Nationwide records in greater detail, setting forth the records for 
each of the applicant companies for which it handled loan applications, HM Management, Alafaya 
Trails, Alafaya Trails, TRU, Sheppard Flagler Holdings, and HM Six (Composite Exhibit 49 and 
49-1 through 49-1).  DE 126. 
The defendant suggests that the government misled the Court about the Davis case it cited 
when it argued in support of admitting this evidence, and that it led the Court to mistakenly believe 
it was bound by the Davis decision, a Ninth Circuit case.  DE 204 at 8.  The defendant 
misrepresents what transpired in Court, including about the case the Court actually cited and relied 
upon.  The Court cited Morris v. United States, 112 F.2d 522 (5th Cir. 1940), where the Fifth Circuit 
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upheld the trial court overruling objections over the admissibility of evidence of a “kindred 
character” involving corporations not specifically charged in the indictment, but which were 
connected to the corporations charged in the indictment, and that occurred at about the same time.  
The Fifth Circuit determined that such evidence helped prove the scheme to defraud and the 
defendant’s intent to defraud.  112 F.2d at 529; Tr. 12/13/23 AM, at 95-96.  The Court invited the 
parties to provide additional case law following the lunch break.  Id. at 100-103.  After lunch, the 
prosecutor cited for the Court United States v. Davis, 172 Fed. Appx. 175 (9th Cir. 2006), and 
mistakenly referred to it as an Eleventh Circuit case.5  Tr. 12/13/23 PM, at 2.  Almost immediately 
after the government mentioned Davis, defense counsel corrected the government and noted it was 
a Ninth Circuit case.  Id. at 3.  The Court concluded that it was bound by the Fifth Circuit case it 
had previously cited to the parties – the Morris case (as the Court had not cited the Davis case)- 
which was still good law and, as a pre-1981 case, it was binding case law in the Eleventh Circuit.  
Id. at 6.  The Court was not mistaken in its reliance on the Morris decision, and it did not err in 
admitting evidence about loan applications that were part of the defendant’s scheme to defraud. 
III. 
 The Court did not err by dismissing Juror no. 3 during trial. 
The defendant complains that the Court improperly dismissed Juror No. 3.  “A district court 
may remove and replace a seated juror before deliberations begin whenever “’facts arise … that 
cast doubt on [that] juror’s ability to perform her duties.’”  United States v. Godwin, 765 F.3d 
1306, 1316 (11th Cir. 2014) (quoting United States v. Smith, 918 F.2d 1501, 1512 (11th Cir. 1990)); 
 
5 The Davis decision, while not binding on this Court, had a similar holding, in which the 
Ninth Circuit upheld the trial court’s decision to admit evidence of other loans in a wire fraud case, 
which loans were considered inextricably intertwined with the ongoing fraud scheme, and did not 
constitute “other acts” evidence under Rule 404(b).  172 Fed. Appx. at 177.  The Ninth Circuit 
believed the government had satisfied its notice obligation of its intended use of the loans at trial 
in its “discovery letter and production, which identified the loan documents and made them 
available for [the co-defendant’s] inspection.”  Id.  
 
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United States v. Fajardo, 787 F.2d 1523, 1525 (11th Cir. 1986); see Fed. R. Crim P. 24(c).  The 
Eleventh Circuit reviews a district court’s decision to excuse a juror “only for abuse of discretion” 
and “will not disturb a district court’s decision to remove a juror before deliberations ‘absent a 
showing of bias or prejudice,’ which includes removal ‘without factual support, or for a legally 
irrelevant reason.’”  Id. (quoting Fajardo, 787 F.2d at 1525).   
In this case, Juror No. 3’s travel schedule was accommodated with a day and a half recess 
at the end of the first week of trial.  Then on Monday of the third week of trial, Juror No. 3 advised 
the Court that he needed to take his wife, who had cancer, and had suffered a broken vertebrae, to 
the doctor to assess her condition, and that he did not know what would happen after that.  Tr. 
12/11/23 AM, at 1.  The Court questioned Juror No. 3 outside the presence of the jury, and he 
indicated he could continue to serve, although he said “it’s day by day or hour by hour, 
unfortunately.”  Id. at 6-7.  The Court recessed for half of that court day so that Juror No. 3 could 
take his wife to the doctor that afternoon.  The next day, Juror No. 3 advised the Court that his 
wife was going to need emergency back surgery.  Tr. 12/12/23 AM, at 3.  When questioned outside 
the presence of the jury to find out about his availability going forward, Juror No. 3 discussed the 
various doctor’s appointments he would need to attend with his wife that week, indicating that he 
would need to miss part of the morning of the next day, Wednesday, the full morning on Thursday, 
the afternoon on Friday,6 and the afternoon of the following Monday.  Id. at 4-5.  Juror No. 3 said 
he did not know his availability beyond the following Monday.  Id. at 5.  Based on Juror No. 3’s 
significant impact on the trial schedule, the Court excused him.  Id. at 6.   
The Eleventh Circuit has upheld similar excusals.  In Fajardo, for instance, the trial court 
 
6 Earlier, Juror No. 3 had advised the Court that he would need to take a full court day off that 
Friday to deal with work-related matters.  Tr. 12/6/23, at 47-48. 
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decided to excuse a juror who was experiencing sinus problems and distracted other jurors by 
gagging, sniffling, snorting and blowing his nose.  787 F.2d at 1525.  When questioned by the 
court, the juror stated that he was neither ill nor in discomfort.  Id.  In other words, the juror did 
not indicate he was unable to serve and did not ask to be excused.  The Eleventh Circuit upheld 
the trial court’s decision, finding that its decision was supported by a factual basis and that it had 
not abused its discretion.  Id. at 1525-26.  In this case, the Court acted within its discretion and had 
a factual basis to excuse Juror No. 3.  The juror’s ability to serve was impaired by his wife’s 
medical condition.  Juror No. 3’s unavailability was going to significantly impact the trial schedule, 
and it was going to impose additional time burdens on the other jurors and their ability to receive 
evidence and testimony in a regularized manner.      
IV. 
The Court did not err in admitting the testimony of the IRS expert witness and the 
documentary evidence that showed the defendant’s loan documents had been falsified.   
 
The defendant argues he was prejudiced by the testimony of IRS expert witness Philip 
Palmer about the defendant’s tax violations or crimes.  As the government explained in its response 
to the defendant’s motion in limine, which was borne out by the trial testimony, the evidence 
presented by Mr. Palmer was intrinsic to the wire fraud crimes charged in the case.  DE 91.  At no 
time was Mr. Palmer asked to give an opinion, nor did he give an opinion that the defendant had 
violated any tax laws.  Mr. Palmer testified, not about the defendant having committed tax crimes, 
but about the payroll and income tax records that the defendant’s businesses had filed or not filed 
with the IRS in order to demonstrate that the tax returns the defendant submitted to the lenders to 
support his PPP loan applications were false and fraudulent.  Mr. Palmer’s expert testimony 
regarding an employer’s requirements for W-2 employees versus 1099 independent contractors 
was directly relevant to: explain the PPP payroll requirements; help prove the defendant’s 
knowledge and intent with respect to the false tax documents; and explain the significance of the 
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false document listing “withholdings” from purported employees that was part of the April 2020 
Alafaya Trails PPP application to PayPal/ WebBank.  See Govt. Exh. 17-8.   
The defendant also complains that the government’s “bad acts” evidence regarding the 
defendant’s taxes improperly reached back to 2018.  The IRS records showed that 2018 was the 
last year that HM Management reported and paid payroll taxes to the IRS.  This was evidence of 
the defendant’s knowledge and intent to defraud because it showed that he knew how to 
differentiate W-2 employees from other types of workers, and the employer tax filing obligations 
that went along with having employees.7  Tr. 11/28/23 PM, at 34-35.  The defendant’s own expert 
accountant analyzed the defendant’s finances going back to 2014.  Tr. 1/10/24 PM, at 69-75.  
Regarding the defendant’s personal income tax returns, Mr. Palmer and Mr. Cupersmith 
testified about the fact that income and losses from partnerships get reported on the partner’s 
personal income tax returns.  Tr. 12/12/23 PM, at 15-16.  As a result, the defendant’s personal tax 
returns were relevant to complete the story as to the partnership tax returns that were admitted in 
the case.  With respect to the defendant’s claim that the government attacked the defendant’s 
wealth, it was the defense who bragged about the defendant’s wealth throughout the trial.  In fact, 
it was part of his defense to argue to the jury that the defendant did not need this money and that 
he could fund his projects without the proceeds from these loans. 
The testimony from former contractors of the defendant that the defendant owed them 
money was relevant to the case, as the defendant had included their names on false “payroll,” 
 
7 The evidence also showed that the defendant withheld payroll taxes from three purported 
employees of HM Management in 2019, but he failed to report or pay those tax withholdings to 
the IRS.  This is corroborated by the defendant’s own trial exhibit Y-1, which were 2019 W-2s 
issued to three people who worked for HM Management.  They reflect that payroll taxes were 
withheld, not that IRS Forms 941 were filed with the IRS or that the employer transferred those 
withholdings to the IRS.  Tr. 01/10/24 PM, at 131. 
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“labor,” and “wages” reports listing payments to them in the form of wages, which were submitted 
to support the loan applications.  Govt. Exhs. 17-8, 18-3, 19-5, 19-14, 20-10.  Furthermore, the 
defendant claimed at trial that he used the loan proceeds to pay his “workers.”  In addition, the fact 
that the defendant still owed the witnesses money was a potential bias issue that the government 
thought the jury should be aware of.   
The government’s evidence of the defendant’s actual tax filings, and the related evidence 
about which the defendant complains, was relevant, not unduly prejudicial, and was properly 
admitted at the trial. 
V. 
The Court did not err by denying the defense re-cross examination of witnesses. 
The defendant claims that the Court erred by not permitting the defendant to re-cross 
examine the PayPal and the Cross River Bank witnesses on the same issue involving income tax 
returns.  Subject to the Sixth Amendment, the trial court has discretion to limit re-cross 
examination.  United States v. Ross, 33 F.3d 1507 (11th Cir. 1994); see Delaware v. Van Arsdall, 
475 U.S. 673, 679 (1986) (“[T]rial judges retain wide latitude insofar as the Confrontation Clause 
is concerned to impose reasonable limits on … cross-examination based on concerns about, among 
other things, harassment, prejudice, confusion of the issues, the witness’ safety, or interrogation 
that is repetitive or only marginally relevant.”).  The Court did not curtail the defendant’s right to 
confront the government’s witnesses, as defense counsel cross examined the government’s 
witnesses extensively, especially regarding the tax returns. 
Jammie Hutcheson from PayPal testified on direct examination that in 2021, PayPal 
required the applicant’s 2020 tax return to be submitted with their application.  Tr. 11/30/23 AM, 
at 34.  Ms. Hutcheson’s direct examination lasted approximately two and a half hours.  The 
defendant’s counsel cross-examined Ms. Hutcheson for approximately three and a half hours, 
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including extensively questioning her about what tax returns were required, not required, reviewed 
and relied upon by PayPal.  As part of the defendant’s cross-examination, counsel did not take yes 
for an answer from Ms. Hutcheson that the partnership’s 1065 tax return was required.  Tr. 11/30/ 
23 PM, at 55-56.8  On re-direct examination, the government asked Ms. Hutcheson questions about 
tax returns being required, and asked Ms. Hutcheson to explain that one reason they were required 
for partnerships was because a partner’s net earnings were supposed to be included in the PPP 
payroll calculation.  Tr. 11/30/23 PM, at 106.  The defendant, having cross-examined Ms. 
Hutcheson for three and a half hours – much of it about whether PayPal required tax returns - was 
denied re-cross to again challenge Ms. Hutcheson about whether tax returns were required.  In any 
event, the defendant was acquitted on the wire fraud and aggravated identity theft counts relating 
to the fraudulent income tax return submitted to PayPal, and thus, any error in failing to allow re-
cross of the PayPal witness on this issue was harmless.   
Regarding the testimony of Spencer Lord from Cross River Bank, the government’s 
redirect examination was brief.  The government asked if Cross River Bank required an income 
 
8   During one exchange with Ms. Hutcheson regarding tax returns, defense counsel asked: 
Q:  So all that testimony on your direct examination about the need for the 1065 tax returns was 
false?   
 
[objection sustained] 
Q:  Isn’t it a fact that because the borrower chose to show loss and revenue from quarter to 
quarter, it was not obligated to provide 1065 tax returns? 
A:  I would need to refresh on the SBA documentation, but my recollection is that the SBA did 
say that if you have not yet filed your 2020 tax return fill it out and submit it. 
Q:  Only if you need to submit it, correct? 
A:  I don’t have every word of the SBA guidelines memorized. 
Q:  Okay.  Let me just get this straight.  Are you saying for a fact that the 2020 tax returns were 
required by PayPal on this application? 
A:  Yes.  We saw earlier where we requested the 2020 tax return. 
 
Tr. 11/30/23 PM, 55-56.  Defense counsel’s questions regarding tax returns continued. 
 
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tax return for the application; a question that the government had asked on direct examination and 
the defense cross-examined the witness about extensively.  Tr. 12/5/23 PM, at 124.  The 
government asked Mr. Lord if he was aware whether a partner’s earnings could be included as part 
of the payroll amount (a reason to require the 1065 tax return).  Id.  Mr. Lord indicated he did not 
know, and thus, there was no basis on which to allow re-cross examination on this issue.  Id.  
As to both the testimony of the PayPal witness and the Cross River Bank witness, the 
defendant conducted lengthy cross examinations.  The Court acted within its discretion to limit re-
cross examination of the witnesses about an issue that defense counsel had covered extensively on 
cross-examination, and because the re-cross would have been repetitive, cumulative and would 
not have made a difference to the verdict. 
VI. 
The Court did not err by limiting cross-examination of irrelevant or improper matters. 
The defendant argues that the Court improperly limited his cross-examination of Martin 
Joe Beirne to impeach his credibility.  The Court’s ruling to deny cross examination into extrinsic 
matters was proper.  Defense counsel attempted to ask Mr. Beirne that he moved to Florida, not 
because his business was slow, but “because you had 22 pending lawsuits at the time didn’t you?”  
Tr. 11/29/23 PM, at 23.  After the Court sustained the government’s objection on relevance 
grounds, defense counsel argued that the question was proper under Fed. R. Evid. 608.   
Federal Rule of Evidence 608(b) allows a witness, on cross-examination, to be asked about 
“specific instances of a witness’s conduct” if it is “probative of the character for truthfulness or 
untruthfulness.”  Asking the witness whether he had 22 pending lawsuits is not a specific instance 
that is probative of anything, much less the witness’s character for truthfulness.  The Court allowed 
defense counsel to make a proffer during a side bar, which was that there had been 22 civil lawsuits 
and a bankruptcy involving Mr. Beirne.  Id. at 36.  Defense counsel confirmed that there had been 
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no specific findings relating to those lawsuits that the witness had committed fraud, only a civil 
complaint and a settlement agreement.  Id. at 37.  
Even the case that defense counsel cited for the Court, United States v. Ramirez-Rivera, 
800 F.3d 1 (11th Cir. 2015), did not support the defendant’s position.  Tr. 11/29/23 PM, at 35.  In 
that case, the Eleventh Circuit found the district court did not abuse its discretion under Rule 608(b) 
by limiting the cross examination of a witness about the commission of a murder because it “does 
not tell anything of his tendency to be truthful ….”  800 F.3d at 43.  The Court ruled correctly 
under Rule 608(b) that: “There hasn’t been a determination.  I understand there have been lawsuits, 
and there may be hundreds of lawsuits.  But unless there’s been a determination, under Rule 608, 
the request to use that for purposes of impeachment is denied.”  Id. at 39.   
 
The defendant’s argument that the Court erred by limiting the cross examination of Mr. 
Graff was addressed above at p. 6.  The Court properly exercised its discretion in the rulings it 
made regarding the cross examination of Mr. Beirne and Mr. Graff. 
VII./VIII.  The government did not commit prosecutorial misconduct. 
 
The defendant argues that the government committed prosecutorial misconduct during 
closing argument (as well as during the trial, based on issues raised above).  In order to establish 
prosecutorial misconduct, “’(1) the remarks must be improper, and (2) the remarks must 
prejudicially affect the substantial rights of the defendant.’”  United States v. Sosa, 777 F.3d 1279, 
1294 (11th Cir. 2015) (quoting United States v. Eckhardt, 466 F.3d 938, 947 (11th Cir. 2006)).  “’A 
defendant’s substantial rights are prejudicially affected when a reasonable probability arises that, 
but for the remarks, the outcome of the trial would have been different.  When the record contains 
sufficient independent evidence of guilt, any error is harmless.’”  Id.  The prosecutors did not make 
improper remarks during closing argument, and any error in their closing arguments constitutes 
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harmless error because there was overwhelming evidence of the defendant’s guilt. 
 
First, with respect to the Rule 404(b) evidence, the government’s discussion of that 
evidence was entirely appropriate.  The Court read the jury instructions before the parties’ closing 
arguments, which included the Rule 404(b) instruction.  DE 187, at 10.  The government did not 
mention the Rule 404(b) evidence in its opening closing argument.  The prosecutor mentioned the 
evidence in rebuttal, only after:  defense counsel denied that the defendant had committed any 
crimes, denied that the defendant had signed anything, blamed Mr. Vasilas for the submission of 
false documents, suggested Mr. Vasilas was the one forging documents, and brought up the Rule 
404(b) evidence herself. Tr. 1/11/24, at 98, 121-122.  
In the government’s 45-minute rebuttal closing, the prosecutor briefly mentioned the Rule 
404(b) evidence once, in the context of telling the jury the purpose for which it was admitted:  that 
the defendant’s use of another’s means of identification was not a mistake, but was intentional.  
Tr. 1/11/24, at 154.  The prosecutor referred to the counts involving the forged tax returns using 
Mr. Cupersmith’s name.  Id. at 153.  The prosecutor mentioned the absence of mistake three times 
in connection with the forgeries in this case.  Id. at 154.  The only specific reference the prosecutor 
made to the Rule 404(b) evidence was to say “you know that it’s not a mistake because Jeff Graff’s 
name was used in an application for a visa, and it was not with[] his consent.”  Defense counsel 
objected, and the prosecutor said, “it’s something that you know tells you that there was no mistake 
in the forgeries in this case.  It was intended.”  Id.9  Based on this record, the defendant’s claim 
that the prosecutor improperly used the Rule 404(b) evidence to argue propensity is meritless. 
 
Second, the defendant complains there was no “competent” evidence establishing Jeanette 
 
9 The prosecutor further told the jury to refer to the jury instructions that the Court had just given 
them.  Id. at 155.  When the Court asked about the defense objection after closing arguments were 
concluded, the prosecutor said she had followed the Court’s jury instructions.  Id. at 163. 
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Gonzalez’s “real” signature, and thus, the government’s argument about the defendant forging her 
signature was improper.  This argument has no merit.  During the trial, Mr. Graff identified Ms. 
Gonzalez’s handwriting on a check that was shown to him.  Tr. 12/6/23 PM, at 55; Govt. Exh. 39-
9, at 2.  During closing argument, the prosecutor showed the jury a check made out to Ms. Gonzalez 
(with the same handwriting), that was endorsed on the back with Ms. Gonzalez’s signed name.  
Govt. Exh. 39-5.  The prosecutor showed the jury, side-by-side, this check with the signature, and 
Ms. Gonzalez’s purported signature on two false documents, a “Resolution and Certification” the 
defendant submitted to Nationwide and to the SBA in an effort to obtain approval for the EIDL 
“modifications” or loan increases on behalf of HM Management and Alafaya Trails.  Govt. Exhs. 
62-7, 63-5; Tr. 1/11/24, at 76-77.  Those documents, which the jury had seen during the trial, 
falsely listed Jennifer Sheppard, the defendant’s wife, as a manager of HM Management and as a 
10% member of Alafaya Trails.  Govt. Exhs. 62-7, 63-5.  The jury had received ample evidence 
during the trial of Mrs. Sheppard’s non-involvement in the businesses, and about the managers 
and owners of those businesses together with their ownership percentages (including a summary 
chart of the companies shown during closing argument).  See Govt. Exh. 23-1.  Ms. Gonzalez’s 
purported signature on the false Resolution documents presented very different handwriting from 
the signature on the endorsed check shown to the jury.   
There was nothing improper about the prosecutor showing the jury documents that were in 
evidence, allowing them to compare the signatures, and asking them to draw reasonable inference 
from the evidence as part of closing argument.  See Sosa, 777 F.3d at 1294-1300 (the prosecutor 
may state conclusions drawn from the evidence).  It was reasonable to ask the jury to conclude that 
the signature reflecting Ms. Gonzalez’s name on a check made out to her was her real signature, 
and that the very different signature on a false EIDL document was yet another instance of the 
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defendant forging someone’s name to submit whatever false document he thought was necessary 
to get the loan approved.10  This evidence contradicted the defendant and supported the 
government’s case that the defendant – and not the people who worked for him -- was responsible 
for the false and forged documents that comprised the loan application documents.  
 
The government already addressed the defendant’s third argument about purported 
uncharged tax violations above at pp. 15-17.  This argument has no merit. 
 
In his fourth point, the defendant essentially makes the same argument about the tax returns 
that he makes about Ms. Gonzalez’s signature.  The jury surely can conclude that the defendant 
forged Mr. Cupersmith’s signature on the false tax returns in order to lend credibility and reliability 
to the tax returns so that his applications would receive less scrutiny by the lenders.  There is 
nothing improper about asking the jury to draw reasonable inferences from the evidence.     
 
The defendant’s fifth argument was addressed above in the discussion regarding the loan 
applications that the defendant refers to as “uncharged loans.” See pp. 7-13.  There was nothing 
improper about showing the jury a summary exhibit that was in evidence as Govt. Exh. 72. 
 
The defendant’s sixth argument is that the government argued to the jury that the defendant 
improperly commingled loan funds.  First of all, defense counsel was the only one who mentioned 
commingling of funds during closing arguments.  Tr. 1/11/24, at 123.  The government did nothing 
improper by pointing out to the jury that the PPP and EIDL funds were deposited into business 
accounts that the defendant used interchangeably for business and personal expenses.  The 
government made the argument to the jury that the defendant had control of the bank accounts that 
received the loan proceeds, that he was the sole beneficiary of the fraud, and that he used those 
 
10 The prosecutor similarly pointed out Mr. Vasilas’ signature on his endorsed checks compared 
to his purported signature on the fake Mattress One lease.  Tr. 1/11/24, at 151. 
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funds as he pleased.  Id. at 53-54.  That was the crime after all; to get that money and use it.  
 
In his seventh argument, the defendant claims that the government misrepresented Mr. 
Graff’s testimony regarding his identification of the defendant’s handwriting on the IRS Forms 
941, and that this was a major factor in finding the defendant guilty as to that count.  The 
government did not misrepresent the evidence regarding the Forms 941.  That evidence was strong; 
it consisted of the defendant’s handwriting and his own admission in an email to PayPal.   
In Mr. Graff’s testimony, he identified handwriting on all of the Forms 941 as belonging 
to the defendant.  It is true that not all of the Forms 941 had the payroll figures filled in with 
handwriting, and that two of them were typed, but they all had handwriting next to the defendant’s 
signature.  Govt. Exh. 19-8.  As to that handwriting on the typed ones, Mr. Graff identified it as 
belonging to the defendant.  Tr. 12/12/23 AM, at 46-47.11  Finally, as to the one Form 941 where 
 
11 Regarding the Forms 941, the government asked Mr. Graff: 
Q:  Does the Defendant – was the Defendant’s signature always the same? 
A:  No. 
Q:  The handwriting to the right of the signature, do you recognize the handwriting? 
A:  Yes. 
Q:  Whose handwriting? 
A:  Eric’s. 
Q:  Can you go back please.  Go to the next one.  Do you recognize the handwriting? 
A:  Yes. 
Q:  Whose handwriting? 
A:  Eric’s. 
Q:  Go to the next one please.   
 
[Objection overruled] 
Q:  Do you recognize the handwriting? 
A:  Yes. 
Q:  Whose handwriting is it? 
A:  Eric’s. 
Q:  Could we go to the last page, please.  Page 12.  Do you recognize the handwriting? 
A:  Yes. 
Q:  Whose handwriting is it? 
A:  Eric’s. 
 
Tr.  12/12/23 AM, at 46-47; Govt. Exh. 19-8. 
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Mr. Graff indicated he was unsure as to some of the handwriting, he did identify the numbers as 
being consistent with the defendant’s handwriting.  Tr. 12/6/23 PM, at 59. 
 
Mr. Graff was corroborated by the defendant’s handwriting on bank records.  Govt. Exh. 
39-9; Tr. 12/6/23 PM, at 54-57.  During closing argument, the prosecutor showed the jury – side- 
by-side - the defendant’s handwriting on bank withdrawal slips, and the hand-written Forms 941.  
Tr. 1/11/24, at 72; Govt. Exh. 39-9.  The jury could have believed Mr. Graff, or they could have 
simply believed their own eyes.   
 
Aside from the handwriting, the jury had a very clear admission from the defendant about 
the Forms 941, which was his own trial exhibit (P-1).  This was an email the defendant sent to 
PayPal stating, “I received the 941s for 2020 from our accounting department and submitted them 
to the portal.”  The prosecutor showed and read to the jury this incriminating email during closing 
argument.  Tr. 1/11/24, at 72-73.  Mr. Graff’s testimony regarding the defendant’s handwriting on 
the Forms 941 was corroborated by other equally strong evidence. 
 
There is no basis for granting the extraordinary relief the defendant requests to throw out 
the guilty verdicts reached by the jury.  The government properly commented on the evidence 
during its closing arguments.  The defendant’s argument that the government made a decision in 
advance of closing to “cross the line” is nowhere supported by this record.  The government’s 
closing arguments did not cross any line or come close to a line.  The defendant’s request to dismiss 
the guilty verdicts must be denied.  
IX.   Defendant’s arguments about cumulative impact of errors have no merit.  
 
As the government discussed above, this Court did not err in the rulings the defendant has 
raised here, nor did the government engage in prosecutorial misconduct.  The defendant also argues 
that some of the jury’s verdicts are inconsistent with each other.  The defendant argues that the 
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guilty verdict as to Count 5 involving the IRS Forms 941, is inconsistent with the not guilty verdicts 
as to Counts 4 and 6, involving the PPP loan application and the IRS Form 1065 submitted to 
PayPal/ WebBank.  Similarly, the defendant argues that the guilty verdict as to Count 13, for 
aggravated identity theft involving the submission of a false and forged tax return to ACAP 
SME/Northeast Bank, is inconsistent with the not guilty verdict for aggravated identity theft 
involving the submission of an almost identical false and forged tax return to PayPal/ WebBank.   
As the defendant well knows, a not guilty verdict is not the same as the jury finding the 
defendant to be innocent, or that he did not do something.  The jury’s verdicts here do not reflect 
any irrational decision.  Quite the contrary.  What the jury verdicts demonstrate is that the jury 
weighed the evidence carefully and followed the jury instructions closely as to each count in order 
to conclude that the government had not proved specific charges beyond a reasonable doubt.   
CONCLUSION 
 
For the reasons set forth above, the United States respectfully requests that the Court deny 
the defendant’s motion to dismiss the charges for which he was found guilty, or to grant him a new 
trial pursuant to Fed. R. Crim. P. 33.  Nothing the defendant has raised in his motion suggests that 
this is an exceptional case in which the interest of justice requires the dismissal of the jury’s guilty 
verdicts, or the granting of a new trial.   
             
 
 
  
   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 215   Entered on FLSD Docket 02/26/2024   Page 26 of 27

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CERTIFICATE OF SERVICE 
 
I HEREBY CERTIFY that on February 26, 2024, I electronically filed the foregoing  
document with the Clerk of the Court using CM/ECF.     
s/Aimee Jimenez____________                           
 
 
 
 
 
 
Aimee C. Jimenez 
 
 
 
 
 
 
  Assistant United States Attorney 
 
 
Case 1:22-cr-20290-BB   Document 215   Entered on FLSD Docket 02/26/2024   Page 27 of 27

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