Reply to Response to Motion by Eric Dean Sheppard re 204 Motion for New Trial — USA v. Sheppard (Dkt. 219, S.D. Fla.)

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U.S. District Court for the Southern District of Florida · No. 1:22-cr-20290-BB · Doc. 219 · 2024-03-13 · Docket on CourtListener

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UNITED STATES DISTRICT COURT 
SOUTHERN DISTRICT OF FORIDA 
CASE No. 22-20290-CR-BLOOM/OTAZO-REYES 
 
UNITES STATES OF AMERICA, 
v.  
ERIC DEAN SHEPPARD, 
 
Defendant. 
____________________________________/ 
REPLY IN SUPPORT OF DEFENDANT’S 
MOTION FOR NEW TRIAL UNDER RULE 33 OR, 
IN THE ALTERNATIVE, TO DISMISS FOR PROSECUTORIAL MISCONDUCT 
 
Defendant Eric Dean Sheppard, by and through undersigned counsel, pursuant to Rule 33 
of the Federal Rules of Criminal Procedure, respectfully submits this reply brief in support of his 
motion to dismiss for prosecutorial misconduct, or for new trial [D.E. 204], and states as follows:1 
INTRODUCTION 
Sheppard was acquitted of 8 out of 14 counts, and convicted of 6 out of 14 counts, for wire 
fraud and aggravated identity theft during a trial that was cumulatively impacted by dozens of 
errors, the government’s prosecutorial misconduct, and a broken-up trial schedule. 
DISCUSSION 
I. 
Errors Related to 404(b) Evidence 
In its response brief, the government continues to misrepresent the facts concerning its 
404(b) notice and evidence submitted at trial. 
To start, the government claims that these 404(b) issues were “extensively litigated” before 
trial and during trial. [D.E. 215 at 2]. Not so. The parties submitted pre-trial briefing on 404(b), 
and the Court denied the defense’s request for a hearing. [D.E. 123 at 16]. The Court’s pre-trial 
order acknowledged that it was relying on the government’s representations about the anticipated 
 
1 This Motion should not be construed as an abandonment or waiver of any other motions or 
objections made prior to or during trial that are not addressed herein. See Rand v. Nat’l Fin. Ins. 
Co., 304 F.3d 1049, 1052 (11th Cir. 2002) (It is a “settled rule in federal courts ... that a party may 
assert on appeal any question that has been properly raised in the trial court. Parties are not required 
to make a motion for a new trial challenging the supposed errors as a prerequisite to appeal.”) 
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evidence, which turned out to be inaccurate. Id. at 11. The Court’s Order made it clear that it would 
revisit the admissibility of the evidence during trial, depending on the testimony. Id. at 8 (finding 
the evidence would be relevant if the anticipated testimony had an established basis during trial). 
For these reasons, the defense believed the 404(b) issues were still open when trial began. 
Then, during trial, the Court heard brief argument—mostly from the defense again asking   
for a hearing, or, at the very least, a proffer immediately prior to the government introducing said 
evidence, so that the Court could determine whether the government met the required threshold 
for admission. The Court declined to hold the requested hearing; nor did the Court make any 
further ruling on this evidence before it permitted the government to introduce it.2 
While the government’s response does its best to muddy the waters, [D.E. 215 at 3], there 
can be little dispute that its 404(b) papers, on which the Court relied in its pretrial ruling, were 
misleading and inaccurate. The defense showed this in the motion for new trial, citing to the 404(b) 
papers at length. [D.E. 204 at 2-6]. In summary, the government originally claimed that Sheppard 
himself forged Graff’s name on Visa application documents, which were alleged 
“misrepresentations to federal agencies” like alleged misrepresentations to the SBA. [D.E. 204 at 
3; D.E. 77]. Then, after seeing the defense response, the government completely changed its story, 
claiming for the first time that Graff’s signature was forged on an engagement letter for a law firm 
(which was not a submission to a governmental agency, as initially represented, and one of the 
reasons it was 404(b) evidence), and that forgery on the engagement letter “reflected” Sheppard’s 
handwriting. [D.E. 116]. On cross examination, Graff admitted (1) that he went “back and forth” 
about whether or not it was Sheppard who forged his name on the engagement letter, and (2) he 
never saw Sheppard sign his (Mr. Graff’s) name on any document, and thus Graff was not familiar 
with Sheppard’s version of Graff’s signature or what it would look like, nor did he have any 
evidence that Sheppard directed anyone else to forge it. [12/11/23 AM Tr. at 121:17-122:10].3 As 
there remains a dispute between the parties about this testimony, and the government did not 
include the full Q-and-A in its response, it is included here in full: 
 
2 The government did not address Sheppard’s claim that a mistrial should have been entered after 
the government improperly used the 404(b) evidence for propensity purposes during closing 
argument, also addressed below. [D.E. 204 at 12-13].   
3 Sheppard’s motion for new trial accidentally miscited this as from the 12/6/23 AM transcript. It 
is corrected here as from the 12/11/23 AM transcript. 
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DEFENSE: Let’s talk about what you have said about the engagement letter signing. Do 
you agree that you have gone back and forth about whether or not it’s your testimony that 
Eric signed the engagement letter? 
 
GRAFF: Yes. 
DEFENSE: And the reason that you have gone back and forth is because honestly, you’ve 
never seen Eric sign your name, right? 
 
GRAFF: Correct. 
DEFENSE: And so you couldn’t say that for sure he signed your name, right? 
GRAFF: I didn’t see him sign the document. 
DEFENSE: And you couldn’t for sure swear that he did [sign] like you did with others? 
GRAFF: Correct. 
[Defense reserves motion with Court based on this testimony]. 
[12/11/23 (Graff Cross) 121:17-122:10]. The government’s spin on this testimony is, in essence, 
that the only reason Graff has gone “back and forth” on whether Sheppard forged Graff’s name on 
the engagement letter is because he did not see Sheppard do it. But Graff’s testimony is much more 
than that. It is an admission that he is speculating and that, contrary to the government’s assertions, 
he cannot confirm for the jury that it is Sheppard’s handwriting on the engagement letter based on 
the handwriting alone, unlike other documents he was shown during trial which he confirmed 
without hesitation contained Sheppard’s handwriting, despite also not witnessing Sheppard filling 
out those documents.4 Had the Court known Graff was speculating about Sheppard’s handwriting 
on the engagement letter—as opposed to the definitive statements in the briefs, on which the Court 
relied, that Graff would confirm Sheppard forgeries—the prejudicial 404(b) evidence may not 
have come in and the trial would have been altered dramatically.5 
 
4 With no factual predicate and no persuasive case law, the government speculates there was “no 
one more qualified” than Graff to give an opinion on Sheppard’s handwriting. 
5 Similarly, had Graff’s testimony come after the testimony of Salem Maged and Heimdal Barrios, 
the Court may have been more questioning of the accuracy of the government’s representations 
about Graff’s testimony. Testimony from Salem Maged and Heimdal Barrios about two other 
purported instances of forgery by Sheppard were thoroughly disproven and totally rejected by the 
jury. Salem Maged was shown, by the defense, to be an unreliable witness with a history of lying 
and fraudulent behavior. Heimdal Barrios was shown, by the defense, to be the creator and last 
modifier of a letter he incorrectly claimed in his testimony he was not involved with.  
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When it came time to cross examine Graff on his speculative claims, the government 
improperly objected and impeded the defense’s ability to do so. One of the government’s pervasive 
and consistent theories in the case was that if something was not done by Sheppard himself, it must 
have been done at his direction because nobody does anything at Sheppard’s companies without 
his approval or direction. This was demonstrably false, and the defense was prepared to prove just 
that. Specifically, the defense sought to contradict and impeach Graff’s testimony by asking Graff 
about former project manager, Scott Fish, with whom Graff had worked, and who stole over a 
million dollars from the companies, right under Sheppard’s nose. [12/11/23 Tr. 141:17-
142:142:20]. As explained in the motion, the Court erroneously sustained the government’s 
objections to every single question on this topic. [D.E. 204 at 6]. 
Now, post-trial, the government maintains that its objections were well-placed, and the 
Court’s rulings were not erroneous because, “What Mr. Fish might have done years earlier . . . had 
no relevance to the events at HM Management in 2018.” [D.E. 215 at 6]. This argument fails for 
two reasons. First, Sheppard’s lack of control before 2018 is probative of his lack of control in 
2018 and beyond. Second, what’s good for the goose is good for the gander. The government did 
not limit its questioning of Graff to the events of 2018. To the contrary—to persuade the Court to 
permit Graff to opine as the handwriting expert, the government elicited testimony from Graff 
about his familiarity with Sheppard dating back to the 1970s, and with Sheppard’s companies 
going back to the early 2000s. [See, e.g., 12/06/23 PM Tr. 3:4-14; 4:6-8:23]. Graff also made 
blanket statements, without temporal limitation, about whether Sheppard’s employees would “go 
rogue.” [D.E. 215 at 6]. Moreover, 2018 is not even the relevant time frame. The charges in the 
indictment relate to events that occurred in 2020 and 2021. If the government was permitted to go 
back to 2018 events with Graff, the defense should have been permitted to go back to earlier events 
involving Scott Fish from 2016. 
The relevance of the Scott Fish line of questioning is obvious. Fish, who had the same role 
as Jeff Vasilas at the company (but earlier in time, from 2012 through 2016) did improper and 
illegal things to the detriment of the companies, including theft and alteration of documents, 
without Sheppard’s knowledge or involvement. Graff knew that and was the person who Fish 
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reported to during this time, and who replaced Fish temporarily due to these thefts, but the defense 
was prevented from impeaching his testimony in front of the jury.6 
Finally, the government argues that any error concerning admission of 404(b) evidence 
was harmless given the “overwhelming” evidence of guilt. [D.E. 215 at 7]. Clearly, the jury did 
not agree with that sentiment. The jury acquitted Sheppard on most counts—8 out of 14 charges. 
These acquittals included charges involving forgeries, where the jury believed Sheppard’s 
testimony and the defense evidence that Sheppard was not responsible for the forgeries. The 
government’s claim that the evidence is “overwhelming,” and any error should therefore be 
considered “harmless,” is just a poor excuse for their improper admission of evidence and for 
improperly blocking relevant and critical impeachment testimony.  
In truth, Graff’s testimony was extremely prejudicial and far from “harmless.” Graff was 
the only government witness who (1) tied Sheppard to the 941s, through his flimsy handwriting 
testimony, and (2) cast doubt on the defense case concerning Jeff Vasilas. The 404(b) evidence 
that came in through Graff, and the defense’s inability to fully cross-examine Graff demonstrating 
his bias, were extremely prejudicial and detrimental to Sheppard. Graff’s 404(b) testimony only 
came in because of the government’s misrepresentations about what he would say. 
II. 
Errors Related to Variance of the Superseding Indictment 
In the motion for new trial, the defense argued that the Court erred by admitting evidence 
of the Uncharged Loans, creating a variance from the Superseding Indictment. [D.E. 204 at 6]. In 
response, the government admits that most of the Uncharged Loans were not mentioned in the 
Indictment, Bill of Particulars, or the Superseding Indictment, and there was no 404(b) notice.7 
 
6 The government continues to refer to Graff’s testimony as “unimpeached.” While this is partially 
true on some areas of testimony, where the defense was improperly prevented from questioning 
Graff on significant issues, it is not true overall. Graff was shown to be a tax cheat and liar. Graff 
was paid approximately $150,000 a year by Sheppard’s companies, but only reported $15,000 per 
year to the Florida Department of Revenue. He had no explanation for this over one-million-dollar 
tax fraud that spanned several years. He admitted that he only reported $15,000 per year, on 
average, and that this was a tax benefit to him. [12/11/23 T. (Graff) 54:5-23]. Despite these 
admissions, the government in its response referred to this as a “baseless smear that Mr. Graff 
committed tax fraud.” Obviously, it was not baseless as Graff admitted he benefitted from his own 
deception to a tune of a million dollars. 
7 This is precisely why the government’s reliance on United States v Davis, 172 F. App’x 175 (9th 
Cir. 2006), is misplaced. In Davis, uncharged conduct was sufficiently noticed in a 404(b) notice. 
Here, there was no 404(b) filing for this evidence, and the government’s position is the defense 
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[D.E. 215 at 7, 11].8 Nonetheless, the government claims the Uncharged Loans are “intrinsic to 
the offense” such that they (1) “arose out of the same transaction or series of transactions” as the 
offense, (2) were “necessary to complete the story of the crime,” and (3) were “inextricably 
intertwined with the evidence” regarding the charged offense. [D.E. 215 at 9], citing U.S. v. Ellisor, 
522 F.3d 1255, 1269 (11th Cir. 2008). 
The government does not even try to explain how the Uncharged Loans satisfy these three 
prongs; it cannot. Each loan was a separate transaction that stood alone. Each had its own 
paperwork, signatures, and supporting documentation submitted to the lenders. The Uncharged 
Loans spanned April 2020 through the end of 2021. This was not one single transaction or series 
of transactions, the Uncharged Loans were not necessary to complete the story, and the evidence 
was not “inextricably intertwined.” Many of the Uncharged Loans were never even funded. Each 
loan was kept and tracked separately, and when the government produced documentation 
regarding the Uncharged Loans, each Uncharged Loan had its own distinct folder and set of 
documents, so it would have been very easy to limit the documentary evidence to the Charged 
Loans. 
The government further claims the defense should not have been surprised that the 
Uncharged Loans became a focus at trial because some of them were mentioned in the original 
Indictment, the government produced documents in discovery about them, and the government 
disclosed witnesses and exhibits concerning the Uncharged Loans. [D.E. 215 at 11-12]. As to the 
original Indictment, the fact that it referred to some of the Uncharged Loans and then later dropped 
those loans from the Superseding Indictment is precisely why Sheppard was surprised they became 
a focus of the trial for the prosecution. Their intentional omission from the charges in the 
Superseding Indictment was a clear message otherwise. 
While it is true that the government produced thousands of pages of records in discovery, 
it is also true that many of the documents produced in discovery were not used or mentioned during 
the proceedings. And much of the discovery was produced before the government superseded and 
seemingly narrowed its case to the Charged Loans. 
 
should have known the Uncharged Loans would become a feature of the case some way other than 
a 404 notice. This is burden shifting. 
8 The exceptions to this are three funded loans—one PPP and two EIDL loans—which were 
charged in the original Indictment but were later dropped in the Superseding Indictment, as 
explained in the motion for new trial. [D.E. 204 at 7]. 
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The government argues that “notice” of these loans was given in its witness and exhibit 
list, and suggests Sheppard waived his right to challenge admission of this evidence at trial because 
he did not challenge it pre-trial. This argument is without merit. Many of the witnesses and 
documents served multiple purposes. For example, the government points out that it included 
witnesses from PayPal and the SBA on its witness list. But both PayPal and the SBA had Charged 
Loans in addition to those Uncharged Loans that became an improper and prejudicial focus of the 
case. Clearly, Sheppard did not waive his right to challenge the admission of this uncharged 
conduct, as the defense objected to it at trial. The government has no valid reason for the lack of 
notice for evidence that became a focus of the case. The fact it may have been included in broad 
discovery dumps totaling thousands of pages is not an excuse for the government’s failure to 
properly notice it as 404(b) evidence. 
In sum, the government’s broad claim that "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,” [D.E. 215 at 10], is false. 
Inextricably intertwined seems to be the government's fallback position for everything, such that 
the outer bound of relevant evidence is limitless. But many of the Uncharged Loans were not 
funded, were submitted on behalf of different companies (with different EINs) also not named in 
the Superseding Indictment, and were not related to each other factually, as explained in the 
motion. The fact that they happened within the same general timeframe does not render them 
inextricably intertwined—indeed, these programs were only available during a relatively short 
time frame. The government’s justification for failing to include the Uncharged Loans in a 404(b) 
does not pass muster—especially because they became a focus of the trial. 
III. 
Errors Related to Dismissal Of Juror No. 3 Over Defense Objections 
The Court may excuse a juror and replace him or her with an alternate if, prior to the time 
the jury retires to consider its verdict, the juror becomes, or is found to be, “unable or disqualified” 
to perform his duties. Fed.R.Crim.P. 24(c). The decision to remove a juror is left to the discretion 
of the Court when there are facts present which convince the Court that the juror’s ability to 
perform is impaired. U.S. v. Smith, 550 F.2d 277, 285 (5th Cir. 1977). The government argues in 
its response brief that the excusal of Juror No. 3 was like the exclusion of the juror at issue in U.S. 
v. Fajardo, 787 F.2d 1523, 1525 (11th Cir. 1986). In Fajardo, the juror at issue was sick (or having 
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sinus trouble) and was constantly distracting the other jurors by repeatedly gagging, sniffling, 
snorting, blowing his nose, and wiping his nose on his sleeve. Id. The court noted: 
[The juror was] not only blowing his nose, but very loudly snorting 
at regular intervals of about every minute and a half. Every time he’d 
do that, all the jurors would sort of shutter and cringe, and they 
obviously were not paying attention, because everytime [sic] he did 
that, the other jurors would either lean forward or lean back or lean 
away from him, and obviously they could not pay attention to what 
was going on while that was happening. He was disrupting the other 
jurors’ attention, obviously. In addition, he would very visibly take 
his hand and wipe his nose or wipe it on his sleeve, which obviously 
was again disruptive of the other jurors and the trial in general. I 
don’t think there’s any doubt in my mind that Mr. Norris should 
have been excused, not only for his own health reasons, but also for 
the disrupting effect it had on the trial. 
 
Id. at 1526. 
Fajardo is inapt. Juror No. 3 was not sick and was not disrupting his fellow jurors.9 Rather, 
his wife was sick and the only impact it may have had was on the trial court’s schedule, which was 
already very much up in the air. In fact, the Court originally agreed this was not good cause to 
excuse him: 
THE COURT: All right. I am not willing to excuse this juror, who 
has not asked to be excused. He’s asked to be accommodated . . . 
And with regard to the Government’s bare claim that this juror is 
overwhelmed and distracted by his wife's medical condition, I am 
certainly willing to bring this juror out and to ensure that that is not 
an issue in this case with regard to his attention and focus on the 
trial. 
 
[12/11/23 T.  4:13-19] (emphasis added). The Court then brought Juror No. 3 into the courtroom 
to be questioned on the record. Juror No. 3 advised that he could focus on the evidence without 
distraction. The Court kept him on the panel. Indeed, to that point, it appeared that Juror No. 3 paid 
as much or more attention to the evidence than the other jurors. The next day, Juror No. 3 informed 
the Court that his wife needed surgery and there may be partial trial days he would need off for 
 
9 The government claims in its response that Juror No. 3’s “ability to serve” was impaired by his 
wife’s medical condition. [D.E. 215 at 15]. This is not supported by the record, as explained herein 
and in the motion. The Court dismissed the government’s position as a “bare claim” without 
support- and yet they restated it in their response brief as if were a reason the juror was excused. 
(Id.) The only impact was on the trial schedule.  
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appointments. Again, this juror was not asking to be excused and never said he could not focus. 
All he said was he needed time off to attend his wife’s appointments.10 
When another Juror No. 12 had a comparable situation and advised she needed to attend 
the out-of-town trial of her sister’s killer for an unknown number of days, the Court and the 
government agreed to adjourn the trial during that time.11 What is notable is that the government 
never challenged Juror No. 12 over her availability, which further underscores the impropriety of 
Juror No. 3’s excusal. What was also clear by this time was that Juror No. 3’s background as a 
CEO of a construction company was extremely important (particularly to the Sheppard) given the 
ongoing construction at Alafaya Trails Shopping Center, which was a focus in the evidence of the 
case.12 Simply put, the government seized the opportunity to bounce a juror in the middle of trial 
whom it regretted seating in the first place. 
Critically, it was already apparent at the time of Juror No. 3’s dismissal that the trial was 
going to be adjourned for three weeks and reset until at least January 6, 2024. Surely, in the weeks 
off that followed, Juror No. 3 could have arranged his personal situation so that it did not interfere 
with the trial. But he was never given the chance to explain that or be questioned about it on the 
record. Instead, he was excused. The government likening this situation to that in Fajardo is 
misplaced. 
Nothing significant changed from the day before when the Court correctly stated, on the 
record, that this juror was not asking to be excused, was paying attention, and he should not be 
excused, except the government urging the Court to remove him. Respectfully, the result of these 
two similar juror situations, which both impacted the trial schedule, were inconsistent. 
 
 
 
10 When he was selected as a juror, all parties were aware of his wife’s illness, which he had been 
living with and tending to for some time. 
11 While this juror never ended up needing the time off, the government’s disparate treatment of 
this juror and Juror No. 3 is obvious. The government stated Juror No. 3 should be excused because 
it was entitled to make a cogent presentation of evidence and it was being disrupted by 
adjournments. No such argument was advanced regarding this other juror. 
12 Earlier in the trial, this juror requested a day to complete his payroll and taxes—issues which 
dominated this trial. To the extent the Court does not find that the record supports a finding of 
prejudice in excusing this juror, the defense requests leave to interview the juror regarding these 
issues. 
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IV. 
Errors Related to Evidence of Uncharged Tax Violations and “Bad Character” 
In the motion for new trial, the defense argued that the Court allowed impermissible 
testimony concerning alleged tax violations and bad character evidence. [D.E. 204 at 9]. The 
government’s response concerning the testimony of its IRS expert is disingenuous and ignores the 
record. [D.E. 215 at 15]. For example, the government claims the IRS expert never gave an 
“opinion” that Sheppard violated any tax laws. [Id.] This is simply not true. Whether in the form 
of an “opinion” or merely other testimony, the expert repeatedly went beyond the expert witness 
disclosure filed by the government, as noted in the motion. [D.E. 204 at 9]. In particular, the IRS 
expert spent substantial time testifying about allegedly unpaid taxes and IRS penalties. Sheppard 
as a purported “tax violator” was a dominant theme of the testimony, and the examples discussed 
at length at trial had nothing to do with the allegations in this case.13 
Where the impropriety of the testimony was glaring—such as how Sheppard allegedly did 
not file tax returns going all the way back to 201814—the government compares that testimony to 
the testimony of Sheppard’s expert, [D.E. 215 at 16]. There is no comparison. The defense expert 
had to talk about earlier periods of time to defend against allegations that Sheppard used the loan 
funds for personal expenses. Moreover, that testimony came long after the testimony of the 
government’s IRS expert. 
Next, the government argues that since Sheppard argued he paid workers during COVID, 
it was free to elicit that some workers claimed they were still owed money. [D.E. 215 at 17]. One 
has nothing to do with the other. Sheppard never claimed every worker was paid every dime he or 
 
13 The government claims Sheppard’s personal returns were relevant because Sheppard supposedly 
“bragged” about his wealth during trial. But it was the government that began the assault on 
Sheppard’s wealth in its opening statement, and continuing throughout trial, such as showing 
photographs of Sheppard’s house and scrutinizing his jewelry expenditures, forcing the defense to 
address the government’s improper emotional appeals to the jury.  From the beginning of trial, the 
government painted Sheppard as a greedy, rich, real estate tycoon, even though personal wealth 
was irrelevant under the PPP loan program. As for the defense, Sheppard never claimed to be 
wealthy. Instead, he testified that, if necessary, he would have found other means of getting money 
to fund the projects in Orlando, which could have been anything, not necessarily independent 
personal wealth. This is a far cry from “bragging” about being wealthy. 
14 Again, when the government sought information from its IRS Agent about the state of 
Sheppard’s taxes in 2018—over objection as irrelevant and bad character evidence—the Court 
permitted such evidence. It is difficult to reconcile the government objecting to the 404(b) 
impeachment of Graff, on grounds it was too remote in time and irrelevant, and the Court’s 
inconsistent rulings on this critical issue. 
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she may have claimed to be entitled. Sheppard never claimed that paying these people during 
COVID was evidence of good character. Sheppard’s position was he used the COVID loan 
proceeds to pay workers, which he did. The government never once disputed that the payments 
Sheppard claimed were made, were made.  
Finally, the government says that outstanding payments to workers were a “bias issue that 
. . . the jury should be aware of.” [Id.] Considering that most of the testimony about outstanding 
payments was elicited by the government from its own witnesses on direct examination, this is an 
incredible argument. The government cannot open the door for itself. Demonstration of bias by 
government witnesses should have been left for the defense, on cross-examination, in a manner 
the defense thought was appropriate and not prejudicial. This is especially true, considering the 
government objected to, and successfully blocked, significant cross-examination by the defense, 
as discussed throughout the motion and this reply. 
V. 
Errors Related to Denial of  Re-Cross Examination 
The government failed to respond to the examples given by the defense in the underlying 
motion. [D.E. 204 at 11]. The government’s re-direct improperly raised new issues never asked 
about on direct, to establish that tax returns were required and reviewed by PayPal and Cross River 
Bank. This was not a situation where re-cross would have been “repetitive” or “cumulative” as the 
government now claims. [D.E. 215 at 19]. This was a situation that the defense was entitled to re-
cross in order to have an opportunity to challenge false and misleading testimony put forth by the 
government for the first time on re-direct.  
The government tries to shift the blame for its improper re-direct to the defense, claiming, 
“[Defense] counsel did not take yes for an answer from [PayPal] that the partnership’s 1065 tax 
return was required.” [D.E. 215 at 18]. Luckily for Sheppard, that is true. Defense counsel did not 
accept PayPal’s baseless testimony that the 1065 tax return was required. The defense proved on 
cross-examination that the PayPal witness was unabashedly speculating and being untruthful. It 
was not until re-direct that the government first claimed the applicant was a partnership and treated 
as such—which is false—and misled the PayPal witness into giving favorable testimony for the 
prosecution. The Court prevented the defense from showing the jury with re-cross examination 
that PayPal’s re-direct testimony was more speculation and untruths. 
 
 
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VI. 
Prosecutorial Misconduct During Trial and Closing Argument 
As shown in the motion for new trial, which cited several examples, the government 
committed prosecutorial misconduct during its closing argument. [D.E. 204 at 13-15]. The 
government’s response addresses those examples. 
With respect to the government’s misconduct in referencing the 404(b) evidence for 
propensity purposes in rebuttal closing, the government claims it was to show lack of “mistake.” 
[D.E. 215 at 21]. While the prosecutor may have recited the word “mistake,” the intended message 
to the jury was abundantly clear: We showed you he did it once, and here he is, doing it again. 
[D.E. 204 at 13]. Mislabeling propensity evidence as evidence of “mistake”—particularly in the 
context of what the prosecutor argued in closing (i.e., that the government proved Sheppard had 
forged before and therefore would again)—does not fix the problem or assuage the prejudice to 
Sheppard. See United States v. Baker, 432 F.3d 1189, 1205 (11th Cir. 2005) (recognizing that 
extrinsic evidence is inherently prejudicial to a defendant; it may cause the jury to convict not for 
the charged offense, but for the extrinsic offense; or it may lead the jury to conclude that the 
defendant is likely to repeat conduct; and “[e]ither inference may be inimical to the long-standing 
rule that propensity to commit crimes should not be the basis of a conviction”). 
With respect to the government’s misleading statements concerning Jeanette Gonzalez, 
[D.E. 204 at 13], the government denies that intention and claims evidentiary support for its 
statements. While it is true Graff identified what he believed was one instance of her true signature, 
[D.E. 215 at 22], there was never any evidentiary basis established for that testimony. Moreover, 
as the Court heard during a mid-trial proffer, the government immunized Jeanette Gonzalez. If it 
wanted her signature identified, it should have called her. Importantly,  it was improper and 
prejudicial for the prosecutors to tell the jury in closing argument that any document contained 
Ms. Gonzalez’s forged signature, [e.g., D.E. 215 at 22 concerning “Resolution and Certification”], 
when Ms. Gonzalez never testified as to any forgery.15 Even if a signature does not appear to match 
her purported “real signature,” she could have authorized her signature to be written by someone 
else or could have provided her signature electronically. 
As to the government’s claim in closing that Graff identified “each and every one of these 
false 941s,” [D.E. 204 at 15], the government does not address in its response brief the 940s and 
 
15 Note, the government gave Ms. Gonzalez immunity, but she apparently did not corroborate the 
theory of prosecution. 
Case 1:22-cr-20290-BB   Document 219   Entered on FLSD Docket 03/13/2024   Page 12 of 14

13 
 
941s which Graff was not even shown, such as Gov’t Trial Exhibits 20-8 and 20-9.  This statement 
to the jury was false and misleading. When the AUSA is misstating the evidence in closing, it is 
highly unlikely to be “harmless.” See e.g., United States v. Alzate, 47 F.3d 1103, 1110 (11th Cir. 
1995). Notably, as to the harm and prejudice this caused—the jury found Sheppard guilty on two 
counts in which the evidence included the 940s and 941s and not guilty on most other charges. 
Moreover, throughout the trial, starting with its opening statement, the government 
repeatedly implied that Sheppard did something wrong by commingling the loan proceeds with 
other funds in his companies’ accounts. Whether the government used the word commingled is 
unimportant, as “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,” [D.E. 215 
at 23], is raising the commingling issue and telling the jury that it was improper and wrong. The 
government repeatedly reminded the jury that Sheppard’s home mortgage, kids’ tuition, and a 
bracelet, among other items, were all paid for out of the same bank accounts where the funded 
loans were deposited. But every government witness testified there was absolutely nothing wrong 
with the commingling of the funds. In fact, many testified that it was expected. The testimony from 
Sheppard’s expert, Scott Bouchner, was unrebutted and unchallenged that there were more than 
enough non-government loan funds in the accounts to cover all personal expenses. 
As to the remainder of the prosecutorial misconduct arguments advanced in the motion, 
the government does nothing more than claim its actions were not improper and any error was 
harmless given the evidence of guilt. As discussed above, the government is hard pressed to prove 
overwhelming evidence of guilt permitting harmless error where Sheppard was acquitted of most 
counts and the jury claimed deadlock after only a few hours deliberating. Indeed, there was not 
overwhelming evidence of guilt, and there is no basis in the record to justify the many blatant acts 
of misconduct. What is clear in the government’s silence as to the many accusations, is the 
cumulative effect of all the issues raised herein dictate that the convictions be reversed. See Baker 
v. U.S., 482 F.3d 1189 (11th Cir. 2005) (finding reversal appropriate where the cumulative effect 
of the errors is prejudicial, even if the prejudice caused by each individual error was harmless) 
citing U.S. v. Blasco, 702 F.2d 1315, 1329 (11th Cir.1983) (“A piecemeal review of each incident 
does not end our inquiry. We must consider the cumulative effect of these incidents and determine 
whether, viewing the trial as a whole, appellants received a fair trial as is their due under our 
Constitution.”). 
Case 1:22-cr-20290-BB   Document 219   Entered on FLSD Docket 03/13/2024   Page 13 of 14

14 
 
CONCLUSION 
For the reasons set forth herein, Defendant Eric Sheppard respectfully requests that this 
Court either (1) dismiss the charges for which he was found guilty, or (2) grant him a new trial 
pursuant to Rule 33 of the Federal Rules of Criminal Procedure. 
 
Dated: March 13, 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 March 13, 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 219   Entered on FLSD Docket 03/13/2024   Page 14 of 14

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