Court filing
Memorandum Redacted Copy of Defendant Sheppard's Sentencing Memorandum — USA v. Sheppard (Dkt. 236-1, S.D. Fla.)
Filed May 10, 2024 in USA v. Sheppard; one of 253 filings from this case.
Record facts
| Court | U.S. District Court for the Southern District of Florida |
|---|---|
| Filed | 2024-05-10 |
U.S. District Court for the Southern District of Florida · No. 1:22-cr-20290-BB · Doc. 236-1 · 2024-05-10 · Docket on CourtListener
Full text
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE No. 22-20290-CR-BLOOM/OTAZO-REYES
UNITED STATES OF AMERICA,
vs.
ERIC DEAN SHEPPARD,
Defendant.
_______________________________/
DEFENDANT SHEPPARD’S SENTENCING MEMORANDUM WITH
OBJECTIONS TO THE PRE-SENTENCE REPORT, SUBMITTED IN CAMERA
TO GOVERNMENT COUNSEL AND THE U.S. PROBATION DEPARTMENT
Defendant Eric Sheppard (“Sheppard”) by and through his undersigned counsel
respectfully submits the following Memorandum regarding his objections to the Presentence
Investigation Report (“PSR”) for the Court’s consideration.
Sheppard raises objections to four significant errors in the PSR. First, Sheppard argues
that the factual account of the alleged offenses contains inaccuracies that severely prejudice his
case and are crucial to his sentence. Second, he disputes the U.S. Probation Officer’s calculation
of the loss amount, which erroneously includes acquitted and irrelevant uncharged conduct, fails
to accurately apply the government benefits rule for loan proceeds that went to permissible
recipients and uses under the Paycheck Protection Program (“PPP”) and COVID-19 Economic
Injury Disaster Loan (“EIDL”) program, and miscalculates the actual and intended loss amounts
of Sheppard’s offenses. Lastly, Sheppard objects to the U.S. Probation Officer’s application of the
sophisticated means and obstruction of justice enhancements, as the government cannot and will
not meet its burden of showing these enhancements should apply. Furthermore, Sheppard
Case 1:22-cr-20290-BB Document 236-1 Entered on FLSD Docket 05/10/2024 Page 1 of 52
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respectfully seeks a downward variance, citing to previous courts’ handling of PPP loan
sentencings and Sheppard’s personal history and characteristics.
I.
The PSR’s Assertions
Sheppard contests the accuracy of the United States Probation Officer’s PSR recitation of
the facts adduced at trial, with which this Court, having presided over the trial, is much more
familiar. It is “essential that the presentence report be completely accurate in every material
respect.” United States v. Aguilar-Ibarra, 740 F.3d 587 (11th Cir. 2014). Here, the PSR is riddled
through with factual inaccuracies, reflecting more the government’s spin on the case than the facts
before this Court at trial.
Because this Court would be ill served by a point-by-point refutation of the PSR’s
inaccuracies, Sheppard here highlights a few errors as examples.
For instance, Paragraph 11 asserts that “HM Management and all of the other companies
identified here were structured as partnerships.” That is factually incorrect. All the companies
that were subject to the loans in question were limited liability companies, which is a different
corporate form than a partnership.
Paragraph 12 asserts that “HM-UP Development Alafaya Trails, LLC (Alafaya Trails) was
a Florida limited liability company that owned the Orlando shopping center, the Shoppes at
Alafaya.” PSR ¶ 12. True, it was a limited liability company, contrary to the preceding paragraph’s
assertion that “all” companies were partnerships. But it is not true that Alafaya Trails “owned” the
Shoppes at Alafaya. Alafaya Trails owned only two parcels at the Orlando Shopping center during
the relevant period.
Paragraph 15 of the PSR asserts that “[t]ax year 2018 was the last year that HM
Management reported having three employees to the Internal Revenue Service (IRS) and to the
Case 1:22-cr-20290-BB Document 236-1 Entered on FLSD Docket 05/10/2024 Page 2 of 52
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Florida Department of Revenue.” PSR ¶ 15. The evidence submitted at trial provides clear
evidence of employee W-2s submitted to the IRS for 2019, contradicting this claim. See Def. Ex.
Y-1.
Additionally, the PSR overlooks and omits critical details regarding the HM Four loan in
paragraphs 29 to 35. It fails to acknowledge that the jury likely dismissed these arguments during
trial, ultimately acquitting the defendant on Counts 1, 2, 3, 10, and 11. Despite this, the PSR asserts
these points as facts without referencing to the testimony that led the jury to their decision. Even
more concerning, the PSR then relies on these paragraphs to justify an increase in the loss
calculation. PSR ¶ 67. Similarly, the PSR mentions EIDL loan applications throughout to justify
the loss figure found in paragraph 67 but fails to mention that the government charged just one of
those loans and, as just mentioned, the jury acquitted Sheppard of that charge. The PSR’s
inaccuracies and omissions of the record extend beyond these few examples identified here, but
the outcome and resulting prejudice to Sheppard as a result is the same. Sheppard respectfully
requests that the PSR be revised to accurately portray the trial record.
II.
Loss Calculation Under § 2B1.1
Sheppard requests that the Court adjust the loss calculation delineated in paragraph 67 of
the PSR as it is grossly inflated. The U.S. Probation Officer’s calculation under § 2B1.1 is flawed
for several reasons. First, loss should exclude those loan applications for which Sheppard was
acquitted or not charged. Second, under the government benefits rule, a decrease in the loss
calculation is warranted because workers employed by Sheppard were eligible for PPP or EIDL
loans and ultimately did receive such money from Sheppard. U.S.S.G. § 2B1.1, cmt. n.3(F)(ii).
In fact, the amount that Sheppard paid towards workers and business expenses amid the pandemic
vastly outsizes the amount the U.S. Probation Officer calculates as actual or intended loss here.
Case 1:22-cr-20290-BB Document 236-1 Entered on FLSD Docket 05/10/2024 Page 3 of 52
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Finally, Sheppard has already paid back, or is in the process of paying back, every single loan that
he received from the government (excepting one loan that received forgiveness from the
government).
The U.S. Probation Officer calculates a proposed intended loss of $2,816,333. PSR ¶ 57.
The breakdown of those charges are below and the loans grayed out are those that Sheppard
contends at a minimum should not be factored into his loss calculations:
Date
Program
Entity
Amount
Status
Funded
4/15/2020
PPP
HM-UP
Development
Alafaya Trails
LLC dba
HM Management
and Development
$146,587
Not charged
Yes
7/24/2020
EIDL
HM Management
and Development
LLC
$160,0001
Not charged
Yes
7/24/2020
EIDL
HM UP
Development
Alafaya Trails
LLC
$160,0002
Not charged
Yes
7/24/2020
EIDL
Sheppard Flagler
Holdings LLC
$160,000
Not charged
No
7/24/2020
EIDL
HM UP
Development
Alafaya Trails
TRU LLC
$160,000
Not charged
No
9/5/2020
EIDL
HM Six LLC
(Trade Name
Sheppard Flagler
Holdings)
$150,000
Not charged
No
10/22/2020
EIDL
HM Four LLC
$150,000
Acquitted.
Yes
1/19/2021
PPP
HM-UP
Development
Alafaya Trails
LLC dba
$203,125
Acquitted in
part,
convicted in
part
No
1 Only $150,000 was funded.
2 Only $150,000 was funded.
Case 1:22-cr-20290-BB Document 236-1 Entered on FLSD Docket 05/10/2024 Page 4 of 52
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HM Management
and Development
1/19/2021
PPP
HM Management
and Development
LLC
$179,633
Not charged
No
3/11/2021
PPP
HM UP
Development
Alafaya Trails
LLC
$148,397
Convicted
Yes
3/12/2021
PPP (First
Draw)
HM Management
and Development
LLC
$148,591
Convicted
Yes
4/27/2021
EIDL
(modification)
HM Management
and Development
LLC
$350,000
Not charged
No
4/27/2021
EIDL
(modification)
HM-UP
Development
Alafaya Trails
LLC
$350,000
Not charged
No
5/4/2021
EIDL
(modification)
HM Four LLC
$350,000
Not charged
No
A.
Acquitted and Uncharged Conduct Should Not Factor into the Loss
Calculation
The Sentencing Guidelines set forth the “relevant conduct” that determines the guideline
range for a defendant’s sentence. U.S.S.G. § 1B1.3; see United States v. Hoffman-Vaile, 568 F.3d
1335, 1344 (11th Cir. 2009). “Relevant conduct” includes the “offense conduct,” which under the
current Guidelines includes “all acts and omissions committed, aided, abetted, counseled,
commanded, induced, procured, or willfully caused by the defendant…that occurred during the
commission of the offense of conviction, in preparation for that offense, or in the course of
attempting to avoid detection or responsibility for that offense.” U.S.S.G. § 1B1.3(1). Eleventh
Circuit case law has interpreted this provision also to include “not merely the charged conduct, but
rather all ‘relevant conduct,’ in calculating a defendant’s offense level.” United States v. Hamaker,
455 F.3d 1316, 1336 (11th Cir. 2006) (quoting United States v. Hasson, 333 F.3d 1264, 1297 n.19
(11th Cir. 2003).
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In this case, Sheppard respectfully requests that he receive the benefit of a forthcoming
amendment to the Sentencing Guidelines that expressly provides that acquitted conduct is not
relevant conduct for purposes of determining the guideline range. Sheppard also contends that his
uncharged conduct—underlying 10 of the 14 loans that the U.S. Probation Officer includes in the
offense conduct—should not count as relevant conduct for purposes of determining the guideline
range. Together, Sheppard’s acquitted and uncharged conduct represents those actions on which
the government either (1) declined to attempt to obtain a conviction, or (2) in fact attempted and
failed to obtain a conviction before a jury of Sheppard’s peers. It is a betrayal of fundamental
concepts of fairness and due process now to seek to punish Sheppard for these acts.
1.
Acquitted Conduct
The Court should exclude Sheppard’s acquitted conduct from its consideration of the
offense conduct under the Guidelines. An amended version of the Guidelines, approved on April
30, 2024, which go into effect November of this year, expressly provides that “acquitted conduct
is not relevant conduct for purposes of determining the guideline range.”3 Proposed Amendments
to the Sentencing Guidelines (Dec. 26, 2023), at 40. Sheppard should get the benefit of this
3 The amendment would revise § 1B1.3 to add new subsection (c), which provides that “relevant
conduct does not include conduct for which the defendant was criminally charged and acquitted in
federal court, unless such conduct also establishes, in whole or in part, the instant offense of
conviction.” Proposed Changes to U.S.S.G., § 2B1.1 (Nov. 1, 2024).
As background, the Sentencing Commission issues proposed amendments on December 26, 2023
that sought to change how the Guidelines recommend using acquitted conduct in sentencing.
Proposed Amendments to the Sentencing Guidelines (Dec. 26, 2023), at 39. The Proposal included
three options. The first option, the most restrictive and which was ultimately adopted, would “add
a new subsection (c) providing that acquitted conduct is not relevant conduct for purposes of
determining the guideline range.” Id. at 40. The second would “add a new application note
providing that a downward departure may be warranted if the use of acquitted conduct has a
disproportionate impact in determining the guideline range relative to the offense of conviction.”
Id. The third would allow for acquitted conduct to be considered provided the government
established that conduct by clear and convincing evidence. Id.
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forthcoming amendment for two reasons. First, at least one other district court has applied this
forthcoming amendment in finding the defendant’s acquitted conduct was not relevant conduct for
purposes of determining the guideline range—and courts in the past have applied other
forthcoming amendments to the Guidelines in other cases. And second, considering that in just
six months similar defendants with similar records who have been found guilty of similar conduct
as Sheppard will have the express benefit under the Guidelines of their acquitted conduct not
counting as relevant conduct, this Court should apply the forthcoming amendment in furtherance
of “the need to avoid unwarranted sentence disparities” among similar defendants under 18 U.S.C.
§ 3553(a)(6).4
At least one district court has already considered and applied the Sentencing Commission’s
forthcoming amendments to the Guidelines in finding that a convicted defendant serving life in
prison (who was convicted in 1998) was entitled to early compassionate release in part because an
acquitted charge (here, murder conspiracy) would no longer have been considered as part of the
presentence report’s guidelines calculation. United States of America v. Anthony Spradler, No.
1:98-CR-38-JMS-MJD-1, 2024 WL 1702873, at *10 (S.D. Ind. Apr. 18, 2024).
And other district courts have applied forthcoming amendments to the Guidelines when
that amendment would provide for more lenience in establishing the guideline range. See, e.g.,
United States v. Williams, No. CR22-0097JLR, 2024 WL 1998415, at *1 (W.D. Wash. May 6,
2024) (noting that “in anticipation of the forthcoming Amendment 821 to the U.S. Sentencing
Guidelines, which took effect approximately four months after [the defendant’s] sentencing,” the
court gave the defendant “the benefit of the upcoming ‘true zero’ criminal history offense level
4 Sheppard also expressly preserves the argument (including but not limited to his right to due
process and his Sixth Amendment right to a jury trial) that it is unconstitutional to use acquitted or
uncharged conduct to increase the punishment for an offense.
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reduction”); United States v. Mendez, 684 F. App’x 803, 806 (11th Cir. 2017) (noting the sentencing
court applied a forthcoming amendment to the Guidelines and sentenced the defendant “within the
forthcoming amended guidelines range he asked be applied”); United States v. Carmona-Garcia,
No. 2:16-CR-318 RB, 2016 WL 10538768, at *5 (D.N.M. Apr. 26, 2016) (granting the defendant’s
objections to the PSR and request for a downward variance, and giving the defendant the benefit
of a forthcoming amendment that reduced “enhancements for crimes committed prior to
deportation”); cf. United States v. Ramon-Perez, 679 F. App’x 732, 734 (10th Cir. 2017)
(explaining that “the parties agreed [in a plea agreement] that [the defendant] should receive the
benefit of the forthcoming amendment” to the Guidelines that would lower the defendant’s
guideline range, and noting that “[t]he district court accepted the agreement, sentencing Mr.
Ramon-Perez as if the amendment had already taken effect”).5
Moreover, one of the factors the Court must take into consideration when imposing its
sentence is “the need to avoid unwarranted sentence disparities among defendants with similar
records who have been found guilty of similar conduct.” 18 U.S.C. § 3553(a)(6). All defendants
sentenced on or after November 1, 2024, when this amendment goes into effect under the
Guidelines, will have the benefit of the Guidelines’ provision that their acquitted conduct should
not count as relevant conduct for purposes of determining a guideline range. Thus, all
defendants—including those who have similar backgrounds and records, and who have been found
guilty of similar conduct, as Sheppard—will be sentenced accordingly, not six months from now.
5 Furthermore, if Sheppard were to appeal his sentence after this amendment goes into effect , the
Eleventh Circuit may apply this amendment retroactively to Sheppard’s sentence. An amendment
that become effective after the date of sentencing may be applied retroactively on appeal if it is
clarifying instead of substantive. See United States v. Jerchower, 631 F.3d 1181, 1184 (11th Cir.
2011). The forthcoming amendment providing that acquitted conduct is not relevant conduct is a
clarifying rather than substantive amendment because it clarifies the definition of relevant conduct
that can be considered at sentencing.
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Section 3553(a)(6)’s directive to avoid unwarranted sentence disparities compels an application of
this amendment here.
There has been an outpouring of support for the Sentencing Commission’s decision to
amend the Guidelines to exclude acquitted conduct from relevant conduct for purposes of
determining a guideline range—including from the United States Senate Committee on the
Judiciary. See Feb. 22, 2024 Letter from United States Senate Committee on the Judiciary (“When
the government fails to discharge its burden of proof—whether reflected in a jury verdict or
meritorious motion for acquittal—subsequent use of such acquitted conduct offends the principles
underlying the Fifth and Sixth Amendments to the Constitution.”). Indeed, Justices Sonia
Sotomayor and Brett Kavanaugh (with whom Justices Neil Gorsuch and Amy Coney Barrett
joined) both issued statements respecting a denial of a petition for certiorari that concerned as its
core issue whether a court may take acquitted conduct into account during sentencing, which noted
that the issue “raises important questions.” McClinton v. United States, 143 S. Ct. 2400, 2401,
2403 (2023). Both Justices also noted that the issue was then-pending before the Sentencing
Commission and denied certiorari in deference to and in anticipation of the Commission’s ultimate
conclusion on the issue. Id. In promulgating the present amendment, the Sentencing Commission
has spoken. And per Sentencing Commission Chair Carlton Reeves: “Not guilty means not guilty.
By enshrining this basic fact within the federal sentencing guidelines, the Commission is taking
an important step to protect the credibility of our courts and criminal justice system.” U.S.S.C.,
Press Release: Commission Votes Unanimously to Pass Package of Reforms Including Limit on
Use of Acquitted Conduct in Sentencing Guidelines (Apr. 17, 2024). Thus, the Court should
consider the Sentencing Guidelines’s overwhelming trajectory (and soon to be operative
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guidelines) of excluding acquitted conduct and consider only relevant charged and convicted
conduct.
With regard to the acquitted conduct at issue here, it is imperative to highlight that
Sheppard was unequivocally acquitted of all charges associated with the October 22, 2020 EIDL
loan application on behalf of HM Four (Counts 1, 2, 3, 10, and 11). This not only exonerates
Sheppard of any wrongdoing but also necessitates a significant adjustment in his total calculated
loss, resulting in a reduction of $150,000.00.
Sheppard’s January 19, 2021 PPP Loan application on behalf of Alafaya Trails also should
not be included in the total loss because the government failed to prove that the submission itself
was false or fraudulent, only that certain supporting materials were. At trial, Sheppard was
acquitted of: allegations of submitting a false and fraudulent application for the loan (Count 4) and
presenting a false and fraudulent IRS Form 1065 in support of the application (Count 6), alongside
the associated identity theft charge (Count 12). The only charge on which Sheppard was convicted
was filing a false IRS Form 941, a supporting document to the loan application. Accounting for
this change decreases his total calculated loss by $203,125. Being acquitted of these counts not
only vindicates Sheppard of those charges but it also necessitates a recalibration of the loss
calculation.
2.
Uncharged Conduct
The Court should exclude any conduct related to the uncharged EIDL applications and
requested EIDL modifications from the loss calculation because such conduct does not meet the
definition of “relevant conduct” that can factor into the loss calculation. In determining whether
uncharged conduct constitutes “relevant conduct” for the purposes of calculating a sentence, courts
“must consider whether there are distinctive similarities between the offense of conviction and the
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remote conduct that signal that they are part of a single course of conduct rather than isolated,
unrelated events that happen only to be similar in kind.” United States v. Maxwell, 34 F.3d 1006,
1011 (11th Cir. 1994). The government has proffered no evidence showing that any conduct
relevant to Sheppard’s EIDL applications rises to the level of relevancy to be considered as part of
Sheppard’s loss calculation.
The July 24, 2020 EIDL applications on behalf of HM Management and Development,
Alafaya Trails, Sheppard Flagler Holdings, and Alfaya Trails TRU (including the attendant EIDL
modifications for these applications) and the September 5, 2020 EIDL application on behalf of
HM Six were not charged in the superseding indictment. And the PSR does nothing to establish
how any of these EIDL applications or modifications were part of the same plan or scheme as the
offenses on which Sheppard was convicted such that they represent a “single course of conduct”
given that all the convicted offenses in this case related to PPP loan applications. See PSR ¶¶ 51,
54, 57.
As delineated in the PSR, the PPP and EIDL programs were separate and served different
purposes. PPP was authorized by Congress to “help small businesses pay their employees’ wages
and avoid massive layoffs,” while the EIDL program was aimed at addressing more general
“economic injury” and providing the applicant with “working capital.” PSR ¶¶ 6, 9. The
application process was also separate, and each program required applicants to submit different
information to receive loan relief. For example, PPP required the submission of documents
indicating the “average monthly payroll of business.” PSR ¶ 6. On the other hand, EIDL required
submission of “information about [the business’s] economic injury” as evidenced by “its gross
revenues[] and costs of goods sold.” PSR ¶ 9. Given the differences between the two programs,
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it would be error to consider Sheppard’s uncharged conduct as to the EIDL program as part of the
same plan or scheme as the PPP loan applications that were central to his offenses of conviction.
Indeed, the Court should exclude all uncharged conduct from its consideration of the
offense conduct under the Guidelines. Particularly where, as here, much of the uncharged conduct
was charged in the government’s original indictment, but then removed from the superseding
indictment, the government should not be rewarded at the punishment phase for including conduct
it did not even deign to include in the guilt phase of trial. By omitting conduct from an indictment,
the government waived its ability to ask this Court to punish defendant for that conduct.
Sheppard also urges the Court to consider the compelling reasons discussed above, supra
Part II.A.1, that led the Sentencing Commission to ultimately reject including acquitted conduct
in the loss calculation. The same rationale applies here: it strains credulity that acquitted conduct
should be excluded on the basis that the evidence presented did not establish guilt, but that
uncharged conduct—which is never even presented to a fact-finder for a determination, beyond a
reasonable doubt, of guilt—should not be excluded for similar reasons.
Moreover, increasing Sheppard’s sentence based on conduct the government chose to drop
from the indictment would condone government conduct that could be seen as underhanded and
unfair to the defendant. On the Probation Office’s view, prosecutors could simply undercharge a
defendant in an indictment, prosecute a defendant on only certain counts, and then inflate the
defendant’s total loss calculation based on evidence of “relevant uncharged conduct” at sentencing.
And here, the government’s approach does appear so calculated: they made strategic moves before
trial, removing specific charges from the initial indictment before the grand jury. The government
removed Counts 1, 2, 3, and 4 from the original indictment. But now, the U.S. Probation Officer
has factored those previously removed counts into Sheppard’s loss calculation. The U.S. Probation
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Officer also seeks to include in the loss calculation charges that were never brought by the
government in either the initial indictment or the superseding indictment. The government cannot
have it both ways. This approach puts Sheppard in an unfair position: he focused on addressing
the charges presented against him at trial, only to face the prospect of a significantly increased
sentence due to the U.S. Probation Officer’s loss calculation. Such tactics are unjust and should
be rejected out of hand by this Court.
Accounting for the error of including the uncharged and irrelevant conduct as to the EIDL
applications and modifications in the loss calculation, Sheppard’s intended loss should be reduced
by $1,840,000 ($640,000 for the July 24, 2020 applications, $150,000 for the September 5, 2020
application, and $1,050,000 for the three requested modifications). And accounting for the error
of including the two uncharged PPP loans in the loss calculation ($326,220), Sheppard’s loss
amount should be decreased by a total of $2,166,220. Thus, after factoring in the reductions
warranted for both the acquitted conduct ($353,125) and uncharged conduct ($2,166,220),
Sheppard’s adjusted loss calculation, at worst, should be $296,988.
B.
The Court Should Apply the Government Benefits Rule To Account For Funds
Distributed To Eligible Workers
Under the Commentary to the Sentencing Guidelines, in cases “involving government
benefits (e.g., grants, loans, entitlement program payments), loss shall be considered to be not less
than the value of the benefits obtained by unintended recipients or diverted to unintended uses, as
the case may be.” U.S.S.G. § 2B1.1, cmt. n.3(F)(ii). The PSR calculates an intended loss figure
of $1,766,333, “as reflected on the loan summary government Exhibit 72, plus $350,000 for each
of the EIDL modifications requested on behalf of HM Management, Alafaya Trails and HM Four,
for a total intended loss amount of $2,816,333.” PSR ¶ 57. But the PSR’s intended loss figure of
$2,816,333 fails to apply the government benefits rule. This calculation of loss ignores that PPP
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and EIDL loans are “government benefits” within the meaning of the Guidelines, that Sheppard
(whose business entities qualified for loans under these programs),6 and that, ultimately,
$4,001,962.56 were used for permissible purposes under the PPP and EIDL Program, namely,
paying workers and paying off business expenses, and thus, should not count toward the intended
loss figure here.
PPP and EIDL loans are “government benefits” within the meaning of U.S.S.G. § 2B1.1,
cmt. n.3(F)(ii) based on the provision’s plain language, which specifies that “loans” are a type of
qualifying government benefit. PPP and EIDL loans are also “government benefits” within the
meaning of U.S.S.G. § 2B1.1, cmt. n.3(F)(ii), as they are analogous to other benefits that courts
have held qualify as “government benefits.” See, e.g., United States v. Maxwell, 579 F.3d 1282,
1306 (11th Cir. 2009) (finding programs aimed at aiding small businesses and small businesses
owned by socially and economically disadvantaged individuals were “Government Benefits
Programs under § 2B1.1”); United States v. Hebron, 684 F.3d 554, 560 (5th Cir. 2012) (applying
the government benefits rule in a case involving disaster relief benefits from the Federal
Emergency Management Agency); United States v. Leahy, 464 F.3d 773, 790 (7th Cir. 2006)
(interpreting U.S.S.G. § 2F1.1 before it was consolidated with § 2B1.1) (finding that contracts
awarded under “an affirmative action program aimed at giving exclusive opportunities to certain
women and minority businesses” were government benefits).
6 Indeed, based on documents provided by Sheppard to counsel, it appears that the $146,587 PPP
loan Sheppard applied for on April 15, 2020 on behalf of HM-UP Development Alafaya Trails
LLC (d/b/a HM Management and Development) was forgiven by the government, which only
further evidences his entitlement to loan proceeds under these programs. See Exhibit A – PayPal
Paycheck Protection Program Loan Team, email to Eric Sheppard (May 27, 2021) (providing the
$146,457.00 qualified for full forgiveness); see also Interim Final Rule on Loan Forgiveness
Requirements and Loan Review Procedures as Amended by Economic Aid Act, 86 Fed. Reg. 8283
(Feb. 2021) (providing overview of the loan forgiveness process and criteria).
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One permissible use of loan proceeds under the PPP and the EIDL program was paying
workers.7 PSR ¶¶ 6, 9. And Sheppard did just that by paying $4,001,962.56 to his workers (who
were eligible for PPP and EIDL proceeds) at the peak of the pandemic, between May 2020 and
December 2021—far in excess of the amount he received as government benefits under the PPP
and COVID-19 EIDL programs.
Under the government benefits rule, the loss calculation includes only that amount
“obtained by unintended recipients or diverted to unintended uses.” U.S.S.G. § 2B1.1, cmt.
n.3(F)(ii) (emphasis added). In other words, loss may be reduced where “a defendant was intended
by the government to receive some amount of benefits[.]” United States v. Tupone, 442 F.3d 145,
154 (3d Cir. 2006) (cleaned up). Intended and permissible uses under the PPP and COVID-19
EIDL program include payroll costs, but also include other expenses such as insurance, rent, and
utilities. See supra note 7. In calculating loss, the court “need only make a reasonable estimate”
based on “available information.” U.S.S.G. § 2B1.1, cmt. n.3(C). Such “available information”
here includes Defense Exhibit Z-3—which trial counsel used as a jury demonstrative during the
testimony of defense expert witness Scott Bouchner—and which shows that $3,848,288.56 went
to permissible expenses under the PPP and the EIDL Program, including to payment of workers,
insurance, utilities, and other business-critical expenses:
7 See Interim Final Rule 85 Fed. Reg. 20811 (April 15, 2020); 13 C.F.R. § 123.303; SBA “About
COVID-19 EIDL,” https://www.sba.gov/funding-programs/loans/covid-19-relief-options/covid-
19-economic-injury-disaster-loan/about-covid-19-eidl#id-loan-details, last accessed May 8, 2024.
Case 1:22-cr-20290-BB Document 236-1 Entered on FLSD Docket 05/10/2024 Page 15 of 52
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As noted by Defense Exhibit Z-3, $676,946.90 of the $3,848,288.56 total went to payroll. And as
evidenced by Defense Exhibit Z-8, an additional $153,674.00 (not included in the above
$676,946.90 payroll figure) also was ultimately paid out to workers:
Case 1:22-cr-20290-BB Document 236-1 Entered on FLSD Docket 05/10/2024 Page 16 of 52
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Thus, while the U.S. Probation Officer calculates loss of $2,816,333 here, that figure completely
ignores that $830,620.90 (i.e., $676,946.90 in “Payroll” plus $153,674.00 in “Payroll to Individual
Workers Incurred by Project Manager”) was paid as payroll to workers, alongside $3,171,341.66
in other non-payroll business expenses, for a total of $4,001,962.56 in permissible uses of loan
proceeds. Because $4,001,962.56—a figure that vastly outsizes the U.S. Probation Officer’s
$2,816,333 loss figure—went to paying workers and business expenses, both permissible uses
under the PPP and EIDL Programs, Sheppard respectfully argues that the appropriate loss figure
here should be zero.
C.
No Intended or Actual Loss Resulted from Sheppard’s Conduct
The government did not suffer any intended loss or actual loss from Sheppard’s offenses
of conviction because Sheppard always intended to pay back the loans that he received from the
government (and has in fact paid back all of the funded loans of which he was convicted). The
Sentencing Guidelines define loss for the purposes of the loss calculation in the PSR as the “greater
of actual loss or intended loss.” § 2B1.1(3)(A). “Intended loss” refers to “the pecuniary harm that
the defendant purposely sought to inflict.” Id. cmt. n.3(A)(ii). “Actual loss” refers to “the
reasonably foreseeable pecuniary harm that resulted from the offense.” Id. cmt. n.3(A)(i).
Sheppard did not intend any loss in this case. Although the Eleventh Circuit has not
weighed in on the issue, at least two other Circuits have found that calculating “intended loss”
Case 1:22-cr-20290-BB Document 236-1 Entered on FLSD Docket 05/10/2024 Page 17 of 52
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under § 2B1.1 requires considering the defendant’s actual (subjective) intent, and not his
constructive intent. See United States v. Henderson, 19 F.3d 917, 928 (5th Cir. 1994) (vacating a
sentence where the district court calculated intended loss using the face value of the fraudulently
obtained loans, without taking into account the defendant’s contention that he intended no loss
because he intended to repay the loans); United States v. Harris, 597 F.3d 242, 254 (5th Cir. 2010)
(clarifying that a court “[can]not use the fact that a defendant’s crime ultimately resulted in a loss
of property to find that he constructively intended to inflict any loss”); United States v. Hartstein,
500 F.3d 790, 798 (8th Cir. 2007) (“Because we have repeatedly characterized intended loss with
reference to a defendant’s actual, subjective intent, that intent should drive our analysis.”). So,
too, should this court consider Sheppard’s actual, subjective intent here. Sheppard always intended
to pay back any loans that were disbursed by the government. As demonstrated in the table below,
Sheppard has already paid back the loans for his offenses of conviction, and he is in the process of
paying back the three other loans that were disbursed to him (except for the April 15, 2020 loan
that was forgiven), including acquitted and uncharged loans.
Date
Program
Entity
Amount
Funded
Status
4/15/2020
PPP
HM-UP
Development
Alafaya Trails LLC
dba
HM Management
and Development
$146,587
Forgiven8
7/24/2020
EIDL
HM Management
and Development
LLC
$150,000
Currently being
paid off
7/24/2020
EIDL
HM UP
Development
Alafaya Trails LLC
$150,000
Currently being
paid off
8 See Exhibit A – PayPal Paycheck Protection Program Loan Team, email to Eric Sheppard (May
27, 2021) (providing the $146,457.00 qualified for full forgiveness).
Case 1:22-cr-20290-BB Document 236-1 Entered on FLSD Docket 05/10/2024 Page 18 of 52
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10/22/2020
EIDL
HM Four LLC
$150,000
Currently being
paid off
3/11/2021
PPP
HM UP
Development
Alafaya Trails LLC
$148,397
Paid in full9
3/12/2021
PPP
HM Management
and Development
LLC
$148,591
Paid in full10
The fact that Sheppard is paying off not just the loans that he was convicted of, but also the loans
that were not included superseding indictment and, most notably, that Sheppard was acquitted of,
is evidence that Sheppard always intended to pay back all loans he received from the government.
Sheppard’s subjective intent was not to inflict any pecuniary harm to on any financial institution.
Therefore, Sheppard’s intended loss amount must be zero.
In addition, no financial institution suffered any actual loss from Sheppard’s offenses of
conviction. According to documents provided by Sheppard, Sheppard has completely paid off
both the March 11, 2021 second draw PPP loan behalf of Alafaya Trails and the March 12, 2021
second draw PPP loan on behalf of HM Management and Development, the only two loans for
which he was convicted of any charges and that were actually disbursed to Sheppard. Because
Sheppard paid back the two loans that he was convicted of, Sheppard did not cause any pecuniary
loss to the government. Therefore, Sheppard’s actual loss amount should be also zero.
Given that there was no intended loss or actual loss resulting from Sheppard’s conduct,
Sheppard respectfully argues that the appropriate loss figure here should be zero.
9 See Exhibit B – Email from Stephanie Paulk (Loan Servicing Specialist, Newity Market) to Eric
Sheppard (4/5/2024) (confirming Sheppard paid off loan on behalf of HM-UP Development
Alfaya Trails LLC)
10 See Exhibit C – Letter from Team Scratch to Eric Sheppard (Apr. 8, 2024) (confirming Sheppard
made his last payment on April 4, 2024 for the $148,591 loan on behalf of HM Management and
Development LLC).
Case 1:22-cr-20290-BB Document 236-1 Entered on FLSD Docket 05/10/2024 Page 19 of 52
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III.
The Sophisticated Means Enhancement Is Incorrectly Included
Sheppard objects to the inclusion of the sophisticated means enhancement in his offense
level calculation on two grounds. First, the PSR fails to provide Sheppard with sufficient notice
as to what facts on which this enhancement is based. Second, that lack of notice notwithstanding,
none of Sheppard’s conduct warrants this enhancement.
First, the absence of any factual basis alleged in the PSR suggests that the government
cannot and will not meet its burden here. U.S. v. Lawrence, 47 F.3d 1559, 1566 (11th Cir. 1995).
The PSR merely states that the sophisticated means enhancement was applied because “the offense
otherwise involved sophisticated means.” ¶ 68. Such a conclusory statement fails to put the
defense on notice as to what facts the government intends to argue support the application of this
enhancement.
Second, there is no factual basis supporting the application of this enhancement to
Sheppard. The sophisticated means enhancement found in § 2B1.1(b)(10)(C) should be applied
only when a fraudulent scheme “involved sophisticated means and the defendant intentionally
engaged in or caused the conduct constituting sophisticated means.” U.S.S.G. § 2B1.1(b)(10)(C).
The commentary to the guidelines defines “sophisticated means” as “especially complex or
especially intricate offense conduct pertaining to the execution or concealment of an offense.”
U.S.S.G. § 2B.1 cmt. n.9(B). Such complexities and intricacies must be “above and beyond” the
complexities and intricacies that are already “inherent in fraud.” United States v. Adepoju, 756
F.3d 250, 259 (4th Cir. 2014).
For example, in Adepoju, the Fourth Circuit found that the district court committed clear
error in applying the sophisticated means enhancement to a defendant who was convicted of bank
fraud for using a stolen identity and forged checks to open a bank account and attempting to
withdraw money from that account. Id. at 252-53. The court reasoned that “the facts concerning
Case 1:22-cr-20290-BB Document 236-1 Entered on FLSD Docket 05/10/2024 Page 20 of 52
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the crime of conviction do not affirmatively indicate that he did anything especially intricate or
complex to obtain [the stolen identity] or attempt to defraud a bank,” and that “government’s
burden demands more than the mere presence of the tools of fraud and the attempt to use the same.”
Id. at 258.
Just like the conduct in Adepoju, Sheppard’s alleged conduct does not rise to the “especially
complex” or “intricate” conduct beyond that “inherent in fraud.” Rather, his alleged conduct
consisted of making misrepresentations while filling out PPP loan applications. Such
misrepresentations are insufficient to warrant the sophisticated means enhancement since all wire
fraud inherently involves misrepresentations. See id. at 257 (finding that the district court
committed clear error when it applied the sophisticated means enhancement to offense conduct
that was no “more than the forgeries, misrepresentation, and concealment inherent in bank fraud”).
Moreover, unlike other PPP loan fraud cases, each of Sheppard’s entities existed prior to
the fraud and for a legitimate purpose. Cf. Sah v. United States, 2023 WL 9785691 (N.D. Tex.
2023) (defendant created shell entities and opened bank accounts in the name of these companies
to carry out PPP loan fraud scheme). That Sheppard used multiple companies in conjunction with
his loan applications does not suggest sophisticated means. After all, it is undisputed that all of
Sheppard’s companies were in existence prior to the submission of the loan applications. Sheppard
offered legitimate reasons at trial for applying through those companies. 12/19/23 A.M. Tr. 18:4-
18. In addition, the bank accounts where the loans were disbursed were registered under the name
of Sheppard’s legitimate companies and were controlled solely by Sheppard, underscoring that he
had no intent to avoid detection in applying for the loans as he did. And, as the defense’s expert
Scott Bouchner testified, the same three company accounts where the loan funds were disbursed
were the same three accounts that Sheppard used to cover his business expenses, including
Case 1:22-cr-20290-BB Document 236-1 Entered on FLSD Docket 05/10/2024 Page 21 of 52
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payments to his workers. 1/10/24 P.M. Tr. 36:5-10, 38:21-39:21. This is simple banking that does
not require sophisticated means.
In sum, Sheppard’s allegedly fraudulent conduct was devoid of any complexities or
intricacies beyond what is inherent in any wire fraud offense. Therefore, the sophisticated means
enhancement should not be applied to Sheppard’s offense level calculation.
IV.
The Obstruction of Justice Enhancement Is Incorrectly Included
Section 3C1.1 of the Guidelines provides for a two-level increase to the defendant’s base
offense level if “(1) the defendant willfully obstructed or impeded, or attempted to obstruct or
impede, the administration of justice with respect to the investigation, prosecution, or sentencing”
of his offense of conviction, and “(2) the obstructive conduct related to…the defendant’s offense
of conviction and any relevant conduct.” Obstructive conduct includes “committing, suborning,
or attempting to suborn perjury.” U.S.S.G. § 3C1.1, cmt. n.4(B). The burden is on the government
to establish “by a preponderance of the evidence the facts necessary to support” the enhancement.
United States v. Turner, 626 F.3d 566, 572 (11th Cir. 2010) (quoting United States v. Kinard, 472
F.3d 1294, 1298 (11th Cir. 2006)). U.S.S.G. § 3C1.1, cmt. n.4(B).
For testimony to warrant the enhancement under § 3C1.1, it must be false, concern a
“material matter,” and result from the defendant’s “willful intent to provide false testimony” as
opposed to from “confusion, mistake, or faulty memory.” United States v. Singh, 291 F.3d 756,
763 (11th Cir. 2002) (quoting United States v. Dunnigan, 507 U.S. 87, 94 (1993)). The
Commentary to the Guidelines also emphasize that “[i]n applying this provision in respect to
alleged false testimony or statements by the defendant, the court should be cognizant that
inaccurate testimony or statements sometimes may result from confusion, mistake, or faulty
memory and, thus, not all inaccurate testimony or statements necessarily reflect a willful attempt
to obstruct justice.” U.S.S.G. § 3C1.1, cmt. n.2.
Case 1:22-cr-20290-BB Document 236-1 Entered on FLSD Docket 05/10/2024 Page 22 of 52
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A.
Paragraph 58
The U.S. Probation Officer states that, during trial, Sheppard “made intentionally false
statements during his testimony that he did not decide who at his companies were paid as W-2
employees and who was paid as an independent contractor. He also denied knowing who were
employees versus independent contractors.” PSR ¶ 58. According to the U.S. Probation Officer,
this testimony is intentionally false because in Sheppard’s February 2019 deposition he
acknowledged that Jeffrey Graff and CJUF workers were independent contractors, while HM
Management paid “payroll taxes for employees” and had “no payroll for independent contractors.”
PSR ¶ 58. The U.S. Probation Officer also cites Mr. Graff’s trial testimony that Sheppard decided
whether three individuals at HM Management were employees or independent contractors and that
Mr. Graff believed Sheppard “knew the difference” between an “employee” versus an
“independent contractor.” PSR ¶ 58.
The U.S. Probation Officer refers to Sheppard’s January 8 and 9, 2024 testimony, which
reflects a long line of questioning that (1) established Sheppard was mostly uninvolved with and
uninformed about hiring decisions that involved classifying workers as employees or independent
contractors, and (2) mainly elicited confusion from Sheppard—not over whether he understood
the difference between employees and independent contractors, but rather over how that distinction
is reflected in the individual worker’s paycheck and the resulting tax implications for the company.
For example, Sheppard testified that Jeanette Gonzalez, his bookkeeper and office manager
(or if not Ms. Gonzalez, someone in charge of hiring for the specific project), not him, decided
whether workers were hired as employees or independent contractors, and that he was “not
involved with that decision making process”:
Q. Jeanette Gonzalez has worked for you since before 2016. Correct?
A. For my companies yes.
. . . .
Case 1:22-cr-20290-BB Document 236-1 Entered on FLSD Docket 05/10/2024 Page 23 of 52
24
Q. She works for the company, which is the entity that you control. And so you’re her
boss, correct?
A. Correct. I’m the managing member of the entity.
Q. Fair to say Ms. Gonzalez doesn’t decide what contractors you hire for projects, right?
A. Correct.
Q. She doesn’t make decisions about what leases you negotiate with tenants, right?
A. That’s correct. She does not.
Q. She doesn’t decide who the laborers are, the -- either you or the contractors decide
who those labors are going to be on various projects, right?
A. That’s correct when it comes to construction or whatever city the parties and the
workers that do the day to day working, the common area working, she doesn’t get in that
decision making process.
Q. She doesn’t decide for HM Management who is going to be a W-2 employee or a 1099
contractor, right?
A. That’s not true. She does.
Q. She does decide?
A. For HM Management.
Q. Yes for HM Management?
A. Yeah she’s on that -- she or whatever is hiring the person is the one that determines
how they identify the employee.
Q. So at HM Management, which is your company, that you manage?
A. Uh-huh.
Q. Where you’re the boss, Jeanette Gonzalez does not decide who is a W-2 employee or a
1099 contractor, correct?
A. That’s not true.
Q. That’s not true. She decides?
A. She or somebody. I’m not involved with that decision making process. I can’t say or
whether she or she talks to the accountants or she talks to the project executive. I don’t
know who she speaks to or who they speak to. I’m not involved with that process myself
so I can’t tell how it actually the -- the process works.
Q. Somebody whom you cannot identify decides for your company who is a W-2 or a
1099 contractor; is that right?
A. Somebody who HM Management is has a contractor to do the work. Whoever is
overseeing the work is the one who determines whether someone -- if as an independent
contractor that’s hiring a third-party company -- the -- if you’re hiring a career air-
conditioning as part of a budget, if it’s an individual person and what they do, that would
be whoever -- whoever hires them, they do a package and they hire them. That’s how it
normally works from my understanding.
1/8/24 A.M. Tr. 106:19-21, 110:10-112:6; see also 1/8/24 P.M. Tr. 52:4-8 (testifying similar as to
Elba Baluarte, and stating “I don’t know how she was designated you know years and years and
years ago…. I typically just pay the account, the payroll account whether it’s ADP or to the
company. That’s how it usual works I don’t know how she’s classified.”); 1/8/24 P.M. Tr. 53:11-
Case 1:22-cr-20290-BB Document 236-1 Entered on FLSD Docket 05/10/2024 Page 24 of 52
25
18 (testifying that he “never thought about” Jeff Graff’s status, but stating that Mr. Graff’s
testimony refreshed his recollection as to a conversation where Graff expressed he wanted to be
converted from an employee to a contractor).
Sheppard further testified that he generally “wasn’t involved” in the process of deciding
whether Ms. Gonzalez herself—or others—were brought on as employees or as independent
contractors:
Q. I’m speaking about let’s say 2017, 2018, 2019, 2020, 2021, did Ms. Jeanette Gonzalez
decide if she was going to be a W-2 or a 1099 for herself?
A. I don’t know what she decided she was going to be. Again, when someone -- I don’t
deal with this so I’m going to try the answer the question to the best of my abilities but like
when she started for HM Management whatever day she started, whoever filled out the
paperwork, they decided whatever she was going to be. I wasn’t involved with that process.
However he started with the company. Someone -- whether it was -- it was probably either
Steve fallow sew or Denise or Addy. Those are the only three people that could have made
those decisions when she started.
. . . .
Q. So somebody made the decision, you don’t know who?
A. Whoever deals with administration and payroll, that’s who made the decision, I assume
that’s how it works. I mean, I don’t know how they make these decisions. But that’s what
they -- whoever was doing it at the time.
1/8/24 A.M. Tr. 113:8-20, 115:16-18.
Sheppard confirmed that while he wrote the checks to pay workers, he did not notice or
appreciate the distinction between a check that would be sent to an employee versus an
independent contractor, and was not involved in and, thus, could not articulate the process by
which an employer “withheld” the appropriate portion of an employee’s wages:
Q. And all those laborers [working on the Burlington Coat Factory project] were 1099ed
contractors, correct?
A. I don’t know what they were. They’re workers. That’s up to Jeff. I just went off payroll
reports, the payroll report. I don’t know what they were. I never said what they were when
I wrote a check. It says payroll. It says payroll, payroll, payroll. So payroll check. That’s
what I wrote. I mean, I didn’t write, I got a payroll report. I just didn’t write a check. I had
a report, I looked at it and I write checks to the individuals.
. . . .
Q. You do know what withholdings are, right?
Case 1:22-cr-20290-BB Document 236-1 Entered on FLSD Docket 05/10/2024 Page 25 of 52
26
A. Yes. I know what withholding are.
Q. And you know that withholding is money that is taken out of wage employees’
paychecks, right?
A. Okay.
Q. Yes?
A. No. I know what withholdings are. It’s when you pay an employee, there’s -- when
someone goes and does it, and where there’s withhold -- that’s what I know. I mean, I used
to get a pay check back in the day.
Q. Right and the withholdings are -- it’s and money that the employer keeps for Medicare,
taxes for Social Security taxes for income taxes, right?
A. (No verbal response.)
Q. Yes. Those with withholdings?
A. I know what withholdings are. I’m not sure how the distribution. I don’t process that.
So I don’t really exactly how -- I know the terms. But I don’t process it myself personally
so I don’t specifically know how that works I know what they mean because --
Q. And you also know that for wage employees, the employer has his or her own tax
responsibilities to contribute Social Security and Medicare taxes as well when they have a
wage employee that that’s part of the withholdings mic up if you will?
A. I mean I know you pay someone a gross wage and how it’s -- whether the worker sends
it to them or the employer I know there’s a gross wage and then certain things are taken
out the, whatever they are. I mean I know I’ve heard the terminology again pro process it.
But I understand what you’re saying what it means.
Q. But there’s an employer portion to that, right that the employer also has toll contribute
Social Security and Medicare taxes I mean that’s what you have to pay, right when you
have wage employees from whom you withhold part of their wages?
A. If it’s -- -- I I can’t really comment. I know there’s something you have to withhold. I
don’t know what that is. But there’s a gross pay and someone calculates what you withhold.
That’s -- if that’s what you’re asking me. I know there’s withholdings. Yes. I --
Q. And you know that with withholdings there is an employer contribution to the IRS as
well. Medicare and Social Security taxes?
A. I don’t understand the employee contribution. I don’t deal with that, but I mean, if you’re
holding somebody’s -- if someone give -- if you pay a person, they get X. And you’re
supposed to hold it and forward a portion of it to them, whatever you’re holding back from
the person. You don’t give them the full check of the gross. If you pay gross check and a
net, and then the other part of the net, you’re supposed to send or something like that. But
I never do the process, so I don’t really understand how that would actually work, but I
understand the concept.
1/8/24 P.M. Tr. 29:10-18, 29:25-32:2; see also 1/9/24 A.M. Tr. 3:16-4:21 (when presented with W-
2s for Jeanette Gonzalez, Elba Baluarte, and Vanessa Gonzalez, Sheppard could not confirm the
process by which the company withheld taxes, stating “I don’t know technically how that goes”
Case 1:22-cr-20290-BB Document 236-1 Entered on FLSD Docket 05/10/2024 Page 26 of 52
27
and “Jeanette in that particular year, handles that stuff. So I can’t tell you exactly how it’s supposed
to work.”).
Sheppard’s confusion throughout the government’s line of questioning related to
“withholding” and the employer’s “contribution” is clear; it is also clear that, beyond writing the
checks, Sheppard was not involved in the payroll process at all:
Q. Right. Well, you’ve been an employer Mr. Sheppard, right?
A. I have.
Q. And as an employer, you withhold part of the employee’s wages and you also -- which
comes out of your business’ pocket -- pay the employer contribution for that I mean you
heard the testimony that must have refreshed your recollection
as to those kinds of payments, correct?
A. I heard the testimony. A lot. Again, my involvement with any type of payroll is there’s
a gross amount. It goes into a payroll account. And then whoever is dealing with that, they
cut people’s checks on Friday, here’s a payroll check on Friday. I only know is for me
personally it’s a gross amount on a monthly basis or a weekly basis it’s a gross amount.
Somebody takes it and they do whatever they are going to do I haven’t had a paycheck in
12 years.
Q. I’m trying to understand from you -- I’m just trying to get an answer to my question,
Mr. Sheppard, which is that there is an employer portion that goes to the IRS for Social
Security and Medicare taxes for your employees.
A. I said I know there’s an employment tax that goes to the government. In some shape or
form. I can’t tell how that’s delineated because I just don’t know. You’re asking me specific
questions about how that gets delineated. I know there’s an employment tax for an
employee, an employee tax. Whatever it is, that goes -- the employment tax goes to the
government. That’s what I know.
Q. Is that, yes, you know this the employer has a contribution as well?
A. When you say contribution, I don’t -- that’s a.
. . . .
Q. So if you don’t understand the term contribution, let me try to rephrase my question Mr.
Sheppard which is: You withhold a certain portion of the employee’s pay. That’s there
withholdings for Medicare Social Security, income tax, and then in addition, the employer
has to pay out of the employer’s account or the employer’s pocket money to the IRS for an
additional amount for Social Security and Medicare? You’re aware of that, yes?
A. I’m aware what you just described to me. Am I aware how that goes? Again, it’s a little
confusing to me that you give someone -- a check and you take money out of the check as
you explained you just forwarding. I don’t know about contribute. You’re just forwarding
what you sound like you’re saying you hold back and one person -- the employer forwards
it and the employee forwards their portion. That’s what I think you’re saying. That’s what
I’m getting out of it at least.
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Q. So when you were writing checks during COVID to the laborers in Orlando it was just
a flat check, I mean a flat amount. You your company HM-Up or HM Management was
not keeping any portion of the amount that was owed to that laborer that’s my question?
A. I have no idea. I got a report. A wrote a check to an individual based upon -- because
we usual use a computer. It was it’s always done by computers because of COVID. There
was -- either I wrote it or Jeff Vasilas wrote it and whatever the payroll report says I just
wrote a check.
. . . .
Q. The payroll report that you saw on the computer that had payments to laborers, it did
not have withholdings for laborers who were not your employees, correct?
A. I have no idea what the payroll report says. I -- four years ago, the what the payroll
report says. It was not --
Q. That was not the only time you ever saw a report, a payroll report in 2020. You’ve seen
those reports, right?
A. I’ve seen the reports but I don’t -- this is different than our normal business. Our normal
business is very organized it’s all like computers and everything’s in spreadsheets and this
is just like a you know a x-ray I don’t say created report by Mr. Vasilas who just hired all
these people and I just -- I remember the people’s names what they did I looked at pictures
to see if she though did the work and she sent me the pictures some of the times the checks
were prepared before I even walked into the room. So it doesn’t -- I don’t know like how
it was actually -- I can visualize but I don’t know how it was actually processed by him. I
have no idea.
Q. You don’t recall seeing any withholdings on those report that is told you how much to
pay those laborers because you were writing the checks?
A. Well, I don’t recall just sitting here I don’t recall exactly how were -- they were just
checked they were a dollar amount. So I don’t know what was held. What was not held. I
don’t know anything. I just hereby’s a person, hearsay the name here’s the what they did if
a check was made out already or if it was. I signed it. But that’s how it worked during the
COVID world.
1/8/24 P.M. Tr. 32:3-33:6, 33:15-34:15, 34:22-35:24.
And despite the U.S. Probation Officer’s contention, Sheppard’s trial testimony actually
reflects consistency with his February 2019 deposition testimony that HM Management paid
“payroll taxes for employees.” PSR ¶ 58.
Q. HM Management, you paid wages to people for a time, right?
A. For a time?
Q. Yeah. Up through 2018, yes?
A. Nope. Through 2019.
1/8/24 P.M. Tr. 35:25-36:3.
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It should not be surprising that Sheppard, who was in charge of running multiple
companies, was not involved in every minute detail of payroll, accounting, and human resources
at those companies. But the important point in reviewing the abovementioned testimony is that
the government has not proven that Sheppard demonstrated a willful intent to give false testimony
here.
B.
Paragraph 59
The U.S. Probation Officer states that Sheppard also “gave false testimony” when he
“denied knowing what [the IRS Form 941s submitted to PayPal in 2021 in support of the Alafaya
Trails PPP loan] were used for, denied having seen them before, denied that he submitted them to
PayPal, and denied that his handwriting was on the forms.” PSR ¶ 59.
The U.S. Probation Officer refers to Sheppard’s January 9, 2024 testimony, in which
Sheppard stated that Jeff Vasilas handled the submission to PayPal and was only involved to the
extent Mr. Vasilas had questions:
Q. All right. Now, on February 11 there were -- with respect -- going back to the PayPal
loan application from January 2021 for HM-UP Development Alafaya Trails, you know
that on February 11, 2021 there were these forms 941 provided to PayPal, right?
A. I don’t know what was provided to PayPal, and -- on February 11th, 2021, I don’t know
what was actually provided to them.
Q. And your attorneys put in this exhibit on your behalf from February 11, 2021 -- I’m
sorry. One moment, please. All right. If we can go to the ELMO, please. This is a part of
your P1 defense exhibit February 11th 2021, that’s your email address, correct?
A. Correct.
Q. And you told PayPal: I received the 941s, from 2020 from our accounting department
and submitted them to the portal, right that’s what you wrote?
A. Well, I didn’t write that, but that’s what I see here, correct.
Q. Someone else wrote that for you?
A. Again, I didn’t handle this specific -- these second round loans as I testified earlier
multiple times. I didn’t handle this. Jeff handled it. I was involved when he asked me
questions. And that’s my involvement with it.
Q. And on this document, PayPal is telling you what they want: Please provide forms 941
and the business tax return which in your case would be a 1065, right?
A. The tax return is a 1065. Yes.
Q. And the forms 941, which is taxable Medicare wages and payroll, right?
A. That’s what it says, yes.
Case 1:22-cr-20290-BB Document 236-1 Entered on FLSD Docket 05/10/2024 Page 29 of 52
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Q. And then the false 941s, that we’ve seen were submitted on that day to PayPal, correct?
A. I don’t know when they were submitted because I didn’t submit them so I don’t know
when they were submitted but I did see those -- what you’re talking about, those 940s or
41s, whichever they are.
1/9/24 P.M. Tr. 17:21-19:7.
Sheppard further opined that the handwriting on the form did not look like his own and
pointed out that his name was misspelled in the signature, which Sheppard noted he would not do:
Q. Okay. Can we go down to the last one. It’s quarter one. Some of these were submitted -
- some of these were submitted with handwriting, not typed, correct?
A. I mean, that’s what I’ve been shown.
Q. And -- go to the quarter one, the last one. Okay. Starting with quarter one here. Just
show you this so a couple of them, several of them were submitted with handwriting. They
were hand filled in, they were not typed. Do you see that?
A. I do see that, yes.
Q. And this is your handwriting, Mr. Sheppard, correct?
A. Does not look like my handwriting.
Q. Got to the next page. That is your handwriting Mr. Sheppard, yes?
A. Doesn’t look like -- I mean, my name’s not even spelled correctly, but that’s a little
strange.
Q. Is that your handwriting?
A. Doesn’t look like my handwriting. I mean from what I’m looking at right this second.
Q. It does not look like your handwriting?
. . . .
Q. All of it?
A. All of it.
Q. Yes?
A. No. You can take part 5, which is the signature and my name is not spelled like that. So
it’s wrong spelling. Again my handwriting is -- you know it’s not that far off, but it’s not
this.
Q. Mr. Sheppard, is it your handwriting on this page, including your signature Mr.
Sheppard?
A. It’s not.
. . . .
THE WITNESS: It’s not my handwriting. What I’m looking at, this document doesn’t look
like my handwriting.
1/9/24 P.M. Tr. 19:12-20:6, 20:10-19, 20:23-24.
According to the U.S. Probation Officer, this testimony is intentionally false because Mr.
Graff confirmed during trial that “the writing and signature on the IRS Form 941s belong to
Case 1:22-cr-20290-BB Document 236-1 Entered on FLSD Docket 05/10/2024 Page 30 of 52
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Sheppard.” PSR ¶ 59. But considering the above-quoted testimony—and particularly considering
Sheppard’s contention that his own name was misspelled on the papers the government insists
Sheppard drafted, an error that no reasonable person could believe Sheppard would make—there
is simply not enough to establish Sheppard had a willful intent to give false testimony in this
instance. And the only opposing evidence cited by the U.S. Probation here (i.e., Mr. Graff’s
testimony that he recognized the handwriting on the record as Sheppard’s, see 12/6/23 P.M. Tr.
57:9-13), is certainly not enough to meet this high standard.
C.
Paragraph 60
The U.S. Probation Officer states that Sheppard also “falsely stated that in April 2020, he
spoke to his accountants, Neal Cupersmith and Alex Zaslow about the PPP and government loans,
and that they provided him advice about the PPP. He falsely stated that the accountants gave him
advice as to which company should apply (HM Management) and that he should provide employee
data for 2019, instead of 2020, on the loan application. Furthermore, he stated that, despite
discussing the PPP, at no time did the accountants advise him that his companies did not qualify
for PPP loans.” PSR ¶ 60.
The U.S. Probation Officer refers to Sheppard’s January 9, 2024 testimony, in which
Sheppard recalled a conversation in which he sought and received advice from Mr. Cupersmith
and Mr. Zaslow about his various companies and the PPP:
Q. Right. Right. So the next day you set up a conference call or a call and then you have a
call -- you have a call with Mr. Cupersmith and Mr. Zaslow, correct?
A. I don’t remember I remember having a call yes.
Q. All right. So I just want it to be clear for this jury. During that call, you asked them for
advice regarding PPP loan applications?
A. I believe that was our conversation. More about the structure of the company and the
PPP loan and whatever was out in the market because it was brand new. I asked them about
it. Yes.
Q. What did you ask them about it?
A. I can’t tell exactly the details of what I asked. That was a long time ago. But I definitely
asked them what you’re supposed to do.
Case 1:22-cr-20290-BB Document 236-1 Entered on FLSD Docket 05/10/2024 Page 31 of 52
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Q. And you asked them whether you qualified for any PPP loans -- I mean, they’re
preparing your tax returns every year, correct?
A. Correct.
Q. So you asked them whether you qualified for any PPP loans?
A. Yes. I was asking -- again, I cannot tell you exactly the specific conversation, but it was
regarding the PPP loans with the PayPal stuff.
Q. And they gave you advice that you could apply for PPP loans and that you qualify for
PPP loans and that you should do it?
MR. ETRA: Objection. A compound question.
THE COURT: Overruled. I’ll allow that.
THE WITNESS: Again, simple, I called the accountants, along with other people. I asked
what am I allowed to do with my company, my company for that PPP loan that’s all I asked.
Q. For the one that was in process or PayPal?
A. HM Management and Development. HM Management and Development is a company
that was -- I was talking about. The applicant was HM-Up. And that conversation about
HM-Up it should be HM Management and that’s when I reached out to PayPal. I said: Hey,
I spoke to the accountant it’s not supposed to be HM-Up. It’s supposed to be HM
Management and I didn’t say that to PayPal but I wrote them an email twice and they never
contacted me back. Because I wanted to change my application because even though
people did work for HM-Up and for CJUF and other companies it was HM Management
that is supposed to apply for the PPP loan.
Q. So you told the accountants that you had applied on behalf of HM-Up for this PPP loan
application and their advice back to you was: No. You should have applied on behalf of
HM
Management. Is that what they told you?
A. Again, I don’t know the exact conversation from four years ago, but it was -- the only
thing I remember talking about was HM Management is the company that should apply for
the -- the PPP loan. That’s my recollection. And --
Q. Because your other companies had no employees, right?
A. No. That’s not -- that’s -- that’s not what they -- I don’t recall the conversation exactly,
but that’s not what the conversation was about.
Q. So they told you that you needed to apply on behalf of HM Management and they didn’t
explain to you why?
A. Again, you’re asking me -- they told me HM Management. That’s why I filed a modified
application to PayPal at the time. And they explained that I always thought it was for the -
- to pay people 2020 was to pay people. So that’s why I asked them and they said: No, it’s
2020 who you can pay for your construction stuff for your construction job, that’s fine. But
we’re -- HM Management workers will go at HM-Up because again we were under
construction so HM Management workers would go for HM-Up who is doing the
construction. That was the simple conversation in the middle of a[sic].
Q. And your accountants would know which of your companies had actual employees.
Right?
A. Can I don’t know what they would know or not know they should know how my
business operates because we speak about my business and how it operates.
Q. So did you tell them that you were applying on behalf of 80 employees.
Case 1:22-cr-20290-BB Document 236-1 Entered on FLSD Docket 05/10/2024 Page 32 of 52
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A. I told them that am I supposed to apply for workers in 2020. And I was told no it was
2019. And that’s why they said you had to adjust it from -- forget the 80 in 2020. You had
to adjust it to eleven in 2000 -- eleven or 5, I don’t remember the exact number -- for 2019
because the workers that did work then, that’s -- and that’s what I modified and resubmitted,
eleven people because I always thought the 2000 -- I thought program was to keep people
working, and that’s what I did and, that’s what I paid. But they said: No. You have to use
the data from 2019. Okay. And you can’t use your workers in 2020 that you’re paying. You
have to use past workers. That’s why I -- excuse me. That’s why I modified the application
and we submitted it so PayPal prior to May first on April 27th.
Q. And they never referred to these people as workers not employees, correct. They referred
to them as workers not employees?
A. Who is they.
Q. The accountants?
A. I don’t know how they referred to them, ma’am. I’m sorry. I don’t know how they
referred to them.
1/9/24 A.M. Tr. 17:6-20:23.
According to the U.S. Probation Officer, this testimony is intentionally false because the
“testimony of Neal Cupersmith and Alex Zaslow show that the accountants and Sheppard did not
talk about the PPP, and that the accountants did not give the defendant advice about his PPP loan
applications (or any other government loan).” PSR ¶ 60. Mr. Cupersmith and Mr. Zaslow testified
at trial that they did not discuss the PPP with Sheppard. See 12/12/23 P.M. Tr. 9:22-24; 1/10/24
P.M. Tr. 137:24-138:20. But to the extent that Sheppard’s trial testimony regarding his April 2020
phone call with “the accountants” contains hedging language—(“I believe that was our
conversation.” “I can’t tell exactly the details of what I asked. That was a long time ago.” “I cannot
tell you exactly the specific conversation”)—that reflects uncertainty and faulty memory, not a
willful intent to give false testimony.
Moreover, Mr. Zaslow confirmed that Sheppard had affirmatively raised the issue of
applying for government loans to (at least) Mr. Zaslow via email in late March 2020, which was
succeeded by a phone call between the two in April:
MR. ETRA: …. Okay. So we’re in the last page and hopefully some language has been
highlighted this is an email from Mr. Sheppard to you on March 30th, correct.
Case 1:22-cr-20290-BB Document 236-1 Entered on FLSD Docket 05/10/2024 Page 33 of 52
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THE WITNESS: Correct.
Q. And he’s saying to you applied for some 05:14:24:09 of the government programs. Do
you see that.
THE WITNESS: Yep.
Q. So isn’t it correct that Mr. Sheppard notified the Cupersmith firm that he had applied
for government programs?
A. Yes.
Q. Okay. And you said you provided advice to other clients, correct?
A. Correct.
Q. But you did not provide any advice to Mr. Sheppard about the government programs is
that your testimony?
A. Correct.
. . . .
Q. Could we put up by the way do you have any notes of -- the conversation that you talk
about that happens in April u do you have any notes of those?
A. No notes.
Q. So you’re going completely from memory?
A. Yeah it was a phone call.
Q. And before you looked at these emails did you even remember that he had raised the
issue of government programs with you?
A. Yes.
Q. So you remember few years later that in a March 30th Mr. Sheppard raised the issue of
government programs, right?
A. Correct.
1/10/24 P.M. Tr. 139:21-140:11, 143:4-15.
That Mr. Zaslow’s testimony is consistent with at least some of Sheppard’s testimony (i.e.,
that Sheppard raised the PPP issue and had a phone call to discuss tax issues around this time)
further evidences Sheppard’s lack of willful intent to obstruct justice here.
D.
Paragraph 61
Finally, the U.S. Probation Officer states that Sheppard “falsely denied that he had any
knowledge or participation in the loan applications that were submitted in 2021, or the supporting
documents consisting of false and forged tax returns and false Forms 940, 941s” and that Sheppard
falsely explained “that his contractor, Jeff Vasilas, submitted the loan application information with
supporting false documents on his behalf in 2021 without his knowledge.” PSR ¶ 61.
Case 1:22-cr-20290-BB Document 236-1 Entered on FLSD Docket 05/10/2024 Page 34 of 52
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The U.S. Probation Officer again refers to Sheppard’s January 9, 2024 testimony, in which
Sheppard stated that Mr. Vasilas was in charge of the submission to PayPal. See 1/9/24 P.M. Tr.
17:21-19:7 (“I didn’t handle this. Jeff handled it. I was involved when he asked me questions. And
that’s my involvement with it.”).
According to the U.S. Probation Officer, this testimony is intentionally false because the
“evidence showed that: a) all of the loan proceeds were deposited into Sheppard’s company bank
accounts for which he was the sole signer; these were accounts that he controlled and he decided
how to use the money; b) all of the IP addresses captured for these loan applications indicated the
loan applications were submitted from Sheppard’s house; c) all of the email communication with
the lenders was between the lender and Sheppard’s email address; d) Sheppard acknowledged that
Jeff Vasilas had to travel to Orlando, Florida during this time to pay workers and to work on
Burlington “punch list” (contractor work that remained to be done); e) there were false (and forged)
documents submitted to the SBA and to Nationwide after Jeff Vasilas died in 2021.”
However, none of the evidence cited by the U.S. Probation Officer shows that Sheppard’s
testimony that Mr. Vasilas handled the 2021 PayPal submission is false. Indeed, it is entirely
possible for the loan proceeds to have been deposited into Sheppard’s company bank accounts; the
loan applications to have been submitted from Sheppard’s home IP address; for email
communication to be routed through Sheppard’s email address; and considering the timing of Mr.
Vasilas’ travels out of Florida and death to be true and for it to be true that Mr. Vasilas handled the
2021 Pay Pal submission.
And that is what the evidence at trial showed. For example, Sheppard testified that in 2021
Vasilas had the authority to “come and go” from Sheppard’s home when he pleased, even when
Sheppard was not there, and had easy access to Sheppard’s home and was “there quite often” to
Case 1:22-cr-20290-BB Document 236-1 Entered on FLSD Docket 05/10/2024 Page 35 of 52
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work (sometimes even staying overnight). 12/19/23 P.M. Tr. 119:7-120:1; 1/8/24 A.M. Tr. 28:22-
29:6; 1/9/24 P.M. Tr. 38:16-39:1. And the Court received into evidence a February 19, 2021
document (Defense Exhibit X32, a proposal to fix a broken gate at Sheppard’s home) that
evidenced Mr. Vasilas DocuSign-ing and submitting the proposal from Sheppard’s home IP
address. 1/8/24 A.M. Tr. 32:18-33:25. Glenn Sheppard also testified that Mr. Vasilas used
Sheppard’s computer and sometimes used Sheppard’s office when Sheppard was not present.
1/10/24 P.M. Tr. 5:2-19, 6:4-7. Thus, that the U.S. Probation Officer alleges “all of the IP addresses
captured for these loan applications indicated the loan applications were submitted from
Sheppard’s house” and “all of the email communication with the lenders was between the lender
and Sheppard’s email address” does not render Sheppard’s testimony that he did not submit the
applications false.
V.
Request for a Downward Variance Based on Equivalent PPP Sentencings
Sheppard’s Presentence Report calculates a guideline imprisonment range of 57 to 71
months. The Court should exercise its discretion to grant Sheppard a downward variance such that
his overall term of imprisonment is in line with other PPP loan fraud sentencings.
For example, Andre Lorquet was sentenced to 71 months related to his abuse of PPP, EIDL,
and other government relief program loans. United States v. Lorquet, 1:22-cr-20326-KMM (S.D.
Fla.) Dkt. No. 1 ¶ 13, According to the Department of Justice:
Lorquet received approximately $4.4 million in COVID-relief funds from the
fraudulent scheme. Lorquet used the fraudulently obtained proceeds to purchase,
among other things, two Tesla S models, a Lamborghini Urus, a Porsche Panamera
GTS, a diamond Audemars Piguet watch, a rose gold and diamond pendant with
his company’s logo, a half-kilogram gold chain with 70 carats of diamonds, and a
1-kilogram gold chain.
Case 1:22-cr-20290-BB Document 236-1 Entered on FLSD Docket 05/10/2024 Page 36 of 52
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U.S. Attorney’s Office (S.D. Fla.) Press Release, March 8, 2024.11 By contrast, Sheppard’s
companies received one quarter of what Lorquet received, only approximately $900,000 in
government relief money, and Sheppard spent the money on legitimate business expenses,
including paying workers.
Sentencings in other districts confirm that the Presentence Report’s suggested guideline
range of 57-71 months exceeds the realm of reasonableness for Sheppard’s conduct. See United
States v. Finley, 23-CR-181 (JMA) (E.D.N.Y.) (a term of imprisonment of 24 months resulting
from a total loss calculation of $3.2 million from 29 PPP and EIDL loans); United States v. Aqeel
et al., 4:20-cr-00583 (ASH) (S.D. Tx.) (terms of imprisonment of 18-44 months for roles in a
scheme to defraud the SBA for over $20 million); United States v. Mendes, (D. Mass.) (term of
imprisonment of 27 months for $1.7 million fraud).
Moreover, it would fundamentally be unfair to ascribe the same level of guilt when, as
here, Sheppard presented unrebutted testimony (via his forensic accountant expert, Mr. Bouchner),
that (1) the money that came into Sheppard’s bank accounts far exceeded the amount of
government loans (see 1/10/24 P.M. Tr. 36:3-10), and (2) the amount of business expenses that
were paid out of Sheppard’s bank accounts exceeded the government loans by a ratio of 5-to-1
(see id. 37:12-21). Put simply, Mr. Bouchner presented evidence that the EIDL and PPP funds
went to business expenses. Instead, and in contrast to the typical PPP fraud scheme, Sheppard
used the funds from his business accounts to for mortgage payments (id. 39:4-14), payroll to
individuals (id. 39:18-40:1), contractor companies (id. 40:18-41:1), and to help with his ongoing
developments (id., 41:2-13). Comparing Sheppard’s case to cases where others have been
11 https://www.justice.gov/usao-sdfl/pr/south-florida-man-sentenced-prison-covid-19-relief-
fraud-after-buying-jewelry-and.
Case 1:22-cr-20290-BB Document 236-1 Entered on FLSD Docket 05/10/2024 Page 37 of 52
38
sentenced to lesser terms of imprisonment even after they used PPP loan proceeds for gambling,
Ferraris 12 or Bentleys13, luxury vacations,14 luxury goods,15 or even just to transfer the funds to
family members16 strongly supports a downward variance in Sheppard’s case.
Also in contrast to the typical PPP fraud scheme and also supporting a downward variance,
Sheppard has repaid or is continuing to repay the loans that he received from the government
(except for the one loan that was forgiven), even the loans for which he was acquitted of all charges
and the loans that were not included in the superseding indictment. To date, Sheppard has repaid
the full balance for the two loans for which he was convicted of all charges, the March 11, 2021
second draw PPP loan on behalf of Alafaya Trails and the March 12, 2021 second draw PPP loan
on behalf of HM Management and Development. Sheppard continues to make payments toward
the July 24, 2020 EIDL loans on behalf of HM Management and Development and Alafaya Trails
and the October 22, 2020 EIDL loan on behalf of HM Four, for which he was acquitted of all
charges.
The Presentence Report’s guideline recommendation is fundamentally out of step with
prevailing sentencings across the country. It proposes to inflict the same punishment on a
defendant who “dissipates the profits or proceeds of his [criminal] activity on wine, women, and
song,” United States v. Ginsburg, 773 F.2d 798, 802 (7th Cir. 1985), as one, like Sheppard, who
12 https://www.justice.gov/opa/pr/two-florida-men-plead-guilty-35-million-covid-19-relief-fraud-
scheme.
13 https://www.justice.gov/usao-cdca/pr/irvine-man-sentenced-4-12-years-federal-prison-
fraudulently-obtaining-5-million-covid.
14 https://www.justice.gov/usao-mdla/pr/attorney-general-announces-results-paycheck-
protection-plan-criminal-fraud-enforcement.
15 https://www.justice.gov/opa/pr/twenty-two-charged-connection-more-11-million-paycheck-
protection-program-fraud-scheme.
16 https://www.justice.gov/opa/pr/woman-convicted-7m-covid-19-relief-fraud.
Case 1:22-cr-20290-BB Document 236-1 Entered on FLSD Docket 05/10/2024 Page 38 of 52
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used the loan proceeds, in effect, their intended purposes. And defendants who have defrauded
banks of far more than Sheppard’s alleged fraud and who have not repaid a cent of the loans that
they fraudulently received have been sentenced to terms both at the lower end and even outside
the guideline range of what is requested here. A downward variance is warranted in these
circumstances.
VI.
Request for a Downward Variance Based on Sheppard’s History and
Characteristics
Under 18 U.S.C. § 3553(a)(1), a court must consider “the history and characteristics of the
defendant” at sentencing. Here, where Sheppard has transcended a traumatic upbringing, built a
successful business, devoted himself to community and charitable causes, and raised two children
who love and admire and desperately need him in their lives, there can be no doubt that his history
and characteristics support a downward variance.
REDACTED
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REDACTED
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REDACTED
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Sheppard’s letters of support paint a picture that allows this Court to see Sheppard as his
loved ones and fellow community members see him. All echo the same sentiment: that Sheppard
REDACTED
Case 1:22-cr-20290-BB Document 236-1 Entered on FLSD Docket 05/10/2024 Page 42 of 52
43
is deserving of leniency and the opportunity to “continue to be of great service to his family and
community.”
Respectfully submitted,
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
O’MELVENY & MYERS
Jeffrey L. Fisher (admitted pro hac vice)
2765 Sand Hill Road
Menlo Park, CA 94025
Tel. (650) 473-2600
Jason Zarrow (admitted pro hac vice)
400 S. Hope Street
Los Angeles, CA 90071
(213) 430-8367
NELSON MULLINS
Jayne C. Weintraub
Florida Bar No. 320382
Jonathan Etra
Florida Bar No. 686905
Christopher Cavallo
Florida Bar No. 0092305
One Biscayne Tower, 21st Floor
2 S. Biscayne Boulevard
Miami, FL 33131
Tel. (305) 373-9400
REDACTED
Case 1:22-cr-20290-BB Document 236-1 Entered on FLSD Docket 05/10/2024 Page 43 of 52
EXHIBIT A
Case 1:22-cr-20290-BB Document 236-1 Entered on FLSD Docket 05/10/2024 Page 44 of 52
From: PayPal Paycheck Protection Program Loan Team <no-reply@paypal-
businessfinancing.com>
Date: Thu, May 27, 2021 at 6:44 PM
Subject: Your PPP Loan Forgiveness Request
To: <eric.sheppard
HM-UP DEVELOPMENT ALAFAYA TRAILS LLC
SBA Loan Number: 8233047308
Lender Loan Number: A00440373
PPP Original Loan Amount: $ 146,457.00
Dear Eric Sheppard,
Congratulations! The SBA reviewed your Paycheck Protection Program
(PPP) Loan Forgiveness Application and determined that you qualify for
full loan forgiveness.
REDACTED
Case 1:22-cr-20290-BB Document 236-1 Entered on FLSD Docket 05/10/2024 Page 45 of 52
As a result, your PPP loan has been marked as paid in full and your loan
balance has been reduced to $0. No further action is required on your
part.
We hope that the PPP loan helped your business through these
challenging times.
If you have questions or need assistance, please call us at 1-866-740-
0393, Monday through Friday, 8 a.m. to 6 p.m. ET.
Sincerely,
PayPal Paycheck Protection Program Loan Forgiveness Team
The lender for the Paycheck Protection Program Loan through PayPal is WebBank, Member FDIC.
Copyright © 2021 PayPal. All rights reserved.
The Paycheck Protection Program Loan, through PayPal, 3505 Silverside Road, Wilmington, DE 19810, USA
Case 1:22-cr-20290-BB Document 236-1 Entered on FLSD Docket 05/10/2024 Page 46 of 52
EXHIBIT B
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EXHIBIT C
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