Defendant's Response to the Government's Notice of Supplemental Authority — United States v. Eric Dean Sheppard

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Defendant's Response to the Government's Notice of Supplemental Authority at D.E. 228, entered 04/11/2024 as Document 230 in United States of America v. Eric Dean Sheppard, Case No. 22-20290-CR-BLOOM/OTAZO-REYES in the Southern District of Florida. Sheppard argues that both cases the government cited, United States v. Watkins and United States v. Waters, support him because under Takhalov fraud requires intent to harm and a misrepresentation going to the nature of the bargain. He contends PPP eligibility criteria were not material to the banks' financial interests, since the banks were financially indifferent to whom they made PPP loans. The response is signed by counsel from Nelson Mullins, O'Melveny & Myers and Black Srebnick.

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UNITED STATES DISTRICT COURT 
SOUTHERN DISTRICT OF FORIDA 
CASE No. 22-20290-CR-BLOOM/OTAZO-REYES 
 
UNITES STATES OF AMERICA, 
 
Plaintiff,  
v.  
ERIC DEAN SHEPPARD, 
 
Defendant. 
____________________________________/ 
DEFENDANT’S RESPONSE TO 
THE GOVERNMENT’S NOTICE OF SUPPLEMENTAL AUTHORITY AT [D.E. 228] 
 
Both cases the government cites support Sheppard.  They reaffirm that, under Takhalov: 
(1) there must be “intent to harm”; (2) the critical question is whether a misrepresentation goes to 
“the nature of the bargain”; and (3) a misrepresentation goes to the nature of the bargain when it 
implicates the victim’s financial interest—i.e., its property interest—in the transaction.  United 
States v. Watkins, 42 F.4th 1278, 1282 n.5, 1287 (11th Cir. 2022); United States v. Waters, 937 
F.3d 1344, 1351-57 (11th Cir. 2019).  Thus, a defendant commits fraud by, for example, 
“misleading investors into believing the solicited funds would be used for business purposes,” 
Watkins, 42 F.4th at 1281, 1282 n.5, or misrepresenting his “creditworthiness,” id. at 1282 n.5 
(citing Waters, 937 F.3d at 1357). 
Here, PPP eligibility criteria were not material to the banks’ financial/property interests in 
the loans.  [D.E. 218 at 12; Hrg. Tr. 52-54].  The banks were financially indifferent to whom they 
made PPP loans.  In fact, the government’s asserted theory of harm is that the banks would have 
made the loans on the same financial terms to someone else.  [Hrg. Tr. 39-40].  The government’s 
naked fraudulent-inducement theory fails under Takhalov and its progeny. 
Case 1:22-cr-20290-BB   Document 230   Entered on FLSD Docket 04/11/2024   Page 1 of 2

2 
 
Dated: April 11, 2024. 
 
 
 
Respectfully submitted, 
NELSON MULLINS  
One Biscayne Tower, 21st Floor  
2 S. Biscayne Boulevard  
Miami, FL 33131  
Telephone: 305.373.9400 
 
By: /s/ Christopher Cavallo 
Christopher Cavallo  
Florida Bar No. 0092305 
Jayne C. Weintraub 
Florida Bar No. 320382 
Jonathan Etra  
Florida Bar No. 686905 
 
O’MELVENY & MYERS 
By: /s/ Jason Zarrow 
Jason Zarrow (admitted pro hac vice) 
400 S. Hope Street 
Los Angeles, CA 90071 
(213) 430-8367 
 
Jeffrey L. Fisher (admitted pro hac vice) 
2765 Sand Hill Road 
Menlo Park, CA 94025 
(650) 473-2600 
 
 
BLACK SREBNICK  
201 South Biscayne Boulevard, Suite 1300  
Miami, Florida 33131  
Tel. (305) 371-6421  
By: /s/ Howard Srebnick   
HOWARD SREBNICK  
Florida Bar No. 919063 
 
 
CERTIFICATE OF SERVICE 
 
I HEREBY CERTIFY that on April 11, 2024, the foregoing document was filed via the 
Court’s CM/ECF system to all counsel of record.  
By: /s/ Christopher Cavallo 
Christopher Cavallo 
 
 
Case 1:22-cr-20290-BB   Document 230   Entered on FLSD Docket 04/11/2024   Page 2 of 2

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