Response in Opposition by USA as to Eric Dean Sheppard — USA v. Sheppard (Dkt. 245, S.D. Fla.)

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U.S. District Court for the Southern District of Florida · No. 1:22-cr-20290-BB · Doc. 245 · 2024-05-29 · Docket on CourtListener

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UNITED STATES DISTRICT COURT 
SOUTHERN DISTRICT OF FLORIDA 
 
Case No. 22-20290-CR-BLOOM(s) 
 
UNITED STATES OF AMERICA  
 
 
 
vs. 
 
 
 
 
 
 
 
 
 
 
ERIC DEAN SHEPPARD 
 
 
 
       Defendant. 
                                    / 
 
UNITED STATES’ RESPONSE IN OPPOSITION TO 
DEFENDANT’S MOTION FOR RELEASE PENDING APPEAL  
 
 
The United States of America, through the undersigned Assistant United States Attorney, 
hereby opposes the defendant’s provisional motion for bond pending appeal, and in support thereof 
submits the following memorandum.  
MEMORANDUM OF LAW 
 
In anticipation that the defendant will appeal the sentence in this case, he is moving 
pursuant to 18 U.S.C. § 3143(b), for his continued release during the pendency of the appeal.  
Section 3143 was initially enacted in 1984, and “was intended to change the presumption [of 
release] so that the conviction is presumed correct and the burden is on the convicted defendant to 
overcome that presumption.”  United States v. Giancola, 754 F.2d 898, 901 (11th Cir. 1985) 
(citing S. Rep. No. 225, 98th Cong., 1st Sess. At 26 (1983), reprinted in 1984 U.S. Code. Cong. & 
Ad. News 1, 29 (Supp. 9A)).  Section 3143(b) provides that: 
(1) … the judicial officer shall order that a person who has been found guilty of an 
offense and sentenced to a term of imprisonment, and who has filed an appeal or a 
petition for a writ of certiorari, be detained, unless the judicial officer finds – 
 
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(A)  
By clear and convincing evidence that the person is not likely to flee or pose 
a danger to the safety of any other person or the community if released under section 
3142(b) or (c) of this title; and 
(B) 
That the appeal is not for the purpose of delay and raises a substantial 
question of law or fact likely to result in – 
(i) 
Reversal, 
(ii) 
An order for a new trial, 
(iii) 
Aa sentence that does not include a term of imprisonment, or 
(iv) 
a reduced sentence to a term of imprisonment less than the total of 
the time already served plus the expected duration of the appeal process. 
 
18 U.S.C. § 3143(b), as amended.   
A. The defendant must prove that he is not a flight risk by clear and convincing evidence. 
Under the Bail Reform Act, it is the convicted defendant’s burden to prove by clear and 
convincing evidence that he will not flee.  The law recognizes that a conviction and a likely 
prison sentence is a significant incentive to flee.  In the Presentence Investigation Report, the   
estimated guideline range is a prison term of 57 to 71 months, plus a mandatory two-year prison 
sentence.  Under the government’s estimated guideline range, the defendant is facing a prison 
term of 70 to 87 months, plus a mandatory two-year prison sentence.  By either measure, the 
defendant is facing a lengthy prison sentence in the range of approximately seven to nine years 
that creates a real incentive to flee. 
The defendant does not have minor children living at his home.  He also has far more 
financial resources than most defendants convicted of federal crimes.  The defendant has not yet 
spent any resources on an appeal, and the only guarantee to avoiding jailtime – at least in the 
short term – is to flee.  While it is true that the government’s main reason for opposing the 
defendant’s motion is that he does not satisfy subpart (b), the defendant has to prove to this Court 
by clear and convincing evidence that he is not likely to flee.  
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B. The appeal does not raise a substantial question of law or fact likely to result in a reduced        
prison sentence that is shorter than the expected duration of an appeal.                     
 
The government agrees with the defendant insofar as answering the question of whether 
the appeal is made for the purpose of delay is answered in the remaining analysis of Section 
3143(b).  In Giancola, the Eleventh Circuit set forth a two-part approach to the substantial 
question issue:  (i) whether the appeal raises a substantial question of law or fact, and (ii) whether  
the substantial question, if determined favorably to the defendant on appeal, is likely to result in a 
reversal, or an order for new trial, or would it result in a reduced prison sentence that is shorter in 
length than the duration of the appeal process.  754 F.2d at 901; 18 U.S.C. § 3243(b).  
The Eleventh Circuit in Giancola provided guidance to determine what is a “substantial 
question,” stating it “is one of more substance than would be necessary to a finding that it was not 
frivolous.  It is a ‘close’ question or one that very well could be decided the other way.”  754 
F.2d at 901.  Ultimately, “[w]hether a question is ‘substantial’ must be determined on a case-by-
case basis.”  Id.1  
  
The defendant has shown he has the financial resources to hire the lawyers who litigated 
Dubin v. United States, 599 U.S. 110 (2023), Ciminelli v. United States, 598 U.S. 306 (2023), and 
United States v. Takhalov, 827 F.3d 1307 (11th Cir. 2016).  Those cases and their counsel, 
however, cannot change the facts of this case.  This case is not Dubin; it is not Ciminelli; and it is 
 
1 The defendant cites this Court’s decision in United States v. White, 2020 WL 4548226 (S.D. Fla. 
Aug. 6, 2020), where this Court granted a defendant’s motion for bond pending the appeal.  
Crucially, the defendant omits the timing of that case – COVID-19 – and the fact that the defendant 
suffered from serious medical conditions, which had a real potential for turning his prison sentence 
into a “death sentence” if he contracted COVID-19.  Id. at *1-*2.  The extenuating circumstances 
of that case cannot be overlooked and simply do not apply here.    
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not Takhalov.  Notwithstanding the “combined opinions” of the defendant’s counsel, those beliefs 
or “opinions” are not relevant to the Court’s analysis here.  See Def. Mtn at 3. 
 
The defendant has tried to shoehorn this case into the Dubin, Ciminelli and Takhalov molds 
by borrowing language from those cases divorced from their context and meaning.  Just because 
there is new case law in an area of the law relating to the statute used in a conviction does not 
automatically create a “close” question or one that that very well could be decided the other way, 
so as to make it a “substantial question” under Section 3143(b) and the Eleventh Circuit.   
The case of United States v. Perholtz, 836 F.2d 554 (D.C. Cir. 1987), is instructive here.  
In that case, the D.C. Circuit denied the defendants’ motion for release pending their appeal from 
mail fraud convictions involving “an elaborate kickback scheme through which the defendants 
received unearned commissions from subcontractors of the [Small Business Administration] 
system.”  Id. at 558.  While the appeal in Perholtz was pending, the Supreme Court issued 
McNally v. United States, 483 U.S. 350 (1987), a decision narrowing, or clarifying, the application 
of the mail fraud statute to exclude “intangible rights.”  Id. at 557.  The D.C. Circuit expressly 
adopted the Eleventh Circuit’s approach from Giancola to analyze the substantial question issue.  
Id. at 555-56.  The Court analyzed the defendants’ convictions in light of McNally and found that 
“the jury could not have found the defendants guilty [of mail fraud] on an intangible rights theory.”  
Id. at 559.  The Court concluded that the indictment alleged a scheme to defraud the SBA of a 
tangible loss, and that the evidence, the prosecutors’ closing arguments, and the jury instructions 
all aligned with that theory, and thus “we do not find that [McNally] raises a close question or one 
that very well could be decided the other way.”  Id. at 560-61.   
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The D.C. Circuit’s analysis in Perholtz applies to this case insofar as the defendant is using 
the existence of new case law in the areas of wire fraud and aggravated identity theft to claim that 
they raise substantial issues of law or fact.  In actuality, the case law the defendant relies upon do 
not present “close” questions in this case. 
(1)  Wire Fraud 
As the government set forth in its response to the defendant’s Rule 29 motion (DE 214), 
the Supreme Court’s Ciminelli decision has no application here.  The “right-to-control” theory of 
wire fraud that was recognized in the Second Circuit was not suggested anywhere in the 
superseding indictment, the evidence at trial, the government’s closing arguments, or the jury 
instructions in this case.  Nothing in this case suggests that the defendant’s scheme to defraud 
targeted anything but a traditional property interest, i.e., loan money.  Thus, Ciminelli has nothing 
to do with the defendant’s wire fraud convictions.  
 
Likewise, the Eleventh Circuit’s Takhalov decision has no application here.  The 
defendant argues that “there is no wire fraud where, as here, the banks got everything they 
bargained for – namely, processing fees and the PPP interest rate,” and thus, the defendant’s 
“misrepresentations were not material to the bank’s financial – i.e., property – interest in the 
transaction.”  Def. Mtn at 5.2  The defendant’s statement borrows words from Takhalov, but the 
facts of this case do not raise a Takhalov issue.  In Takhalov, the defendants’ scheme essentially 
unfolded in two parts and their deception was not directed at the financial transactions at issue.  
 
2 The defendant mischaracterizes the government’s arguments regarding the SBA.  Def. Mtn at 
5.  The government has argued that the SBA had a property interest because it disbursed money 
to the defendant – directly in EIDLs and indirectly through loan forgiveness in the PPP context.  
Furthermore, even in its role as a guarantor, the SBA has been deemed to have a property interest. 
DE 214 at 6-8.  
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Thus, the Eleventh Circuit in Takhalov focused on the basic tenets of a fraud:  whether, in a 
scheme to defraud, the defendant intended “to ‘deprive [the victim] of something of value by trick, 
deceit’ . . . .”  827 F.3d at 1313 (quoting United States v. Bradley, 644 F.3d 1213, 1240 (11th Cir. 
2011)).  The Court asked whether the defendant’s deception was “about the nature of the bargain 
itself” such that he intended to defraud the victim.  Id. at 1313-1314.   
The defendant’s lies here were made to the lenders and to the SBA, and the lies were about 
whether his businesses qualified for the loans (PPP and EIDL) that were the financial transactions 
at issue.  The defendant’s deception was intended to persuade the lenders and the SBA to make 
loans to the defendant’s businesses that they would not have otherwise made.  Of course his 
deception went to the nature of the bargain itself.  See United States v. Watkins, 42 F.4th 1278 
(11th Cir. 2022) (rejecting defendant’s Takhalov argument challenging his bank fraud convictions 
as “plainly nonsensical,” where the defendant lied about the true recipient of the loan, but argued 
that he made no misrepresentations “as to the requested loan amount or the terms of the agreement” 
and that he therefore did not lie about the nature of the bargain).3 Applying Takhalov here, as well 
as Watkins – the Eleventh Circuit’s application of Takhalov in a loan context – forecloses the 
argument that Takhalov presents a “close” question regarding the wire fraud convictions in this 
case.           
(2) Aggravated Identity Theft 
 
On the issue of aggravated identity theft, the Eleventh Circuit has interpreted and applied 
the Dubin decision in several cases.  See, e.g., United States v. Gladden, 78 F.4th 1232, 1245-46 
 
3 The government cited United States v. Watkins, 42 F.4th 1278 (11th Cir. 2022) in its Notice of 
Supplemental Authority, DE 228. 
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(11th Cir. 2023).  Dubin was an outlier; the facts represented an extreme application of the 
aggravated identity theft statute.  Here, unlike in Dubin, the defendant actually used someone’s 
identity to commit the fraud.  At the crux of what made the defendant’s conduct criminal here was 
the submission of false and fraudulent tax documents that were requested and required to support 
and process the loan applications.  The defendant submitted income tax returns (with materially 
false information about his businesses, wages and revenues) claiming they had been prepared and 
signed by his accountant when they were actually fabricated and forged by the defendant.  The 
post-Dubin cases, in the Eleventh Circuit and in the trial courts that have applied it with facts 
similar to this case, all support upholding the aggravated identity theft convictions in this case.  
This issue is not a “close” one and thus, it is not substantial under the Eleventh Circuit’s Giancola 
decision.      
C.  The appeal will not result in a sentence that is less than the duration of the appeal unless 
the defendant prevails on all of the arguments he raises.                                   
 
The defendant is challenging both the wire fraud and the aggravated identity theft 
convictions.  If the defendant prevails on both fronts, his sentence will result in zero jail time.  Of 
course, that is less time than the duration of any appeal.  In Dubin, the defendant was only facing 
a 24-month sentence, whereas here, the estimated guideline ranges for the wire fraud convictions 
alone equate to approximately five to seven years in prison.  Thus, even if the Court were to 
conclude that the aggravated identity theft convictions raise a close question under Dubin, which 
the government believes they do not, the defendant is facing a lengthy prison sentence on the wire 
fraud convictions alone.     
The issue to be decided by the Court is discussed above; whether the defendant raises a 
“substantial question,” that is, a “close” question on his appeal.  If the Court decides that the 
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defendant has not raised a substantial question under Section 3143(b), the Court need not undertake 
any further analysis.  See, e.g., United States v. Buckhalter, 2016 WL 116566880 (S.D. Fla. Feb. 
5, 2016) (once court concluded that the defendant had not raised a substantial question, the court 
denied the motion for bond pending appeal); United States v. Maxwell, 2007 WL 9723395 (S.D. 
Fla. Apr. 13, 2007) (same).  For the reasons discussed above, the Court should conclude that none 
of these issues rises to the level of a substantial question under Section 3143(b).  Thus, the Court 
does not need to estimate the time that the case will be under appeal.     
D. The defendant should not be allowed to remain on bond while the Eleventh Circuit decides 
this same issue.                                                                            
 
The defendant requests, in the alternative, that he be allowed to remain on bond while he 
litigates this same bond issue before the Eleventh Circuit.  For the same reasons set forth above, 
the Court should deny this request as well.   
 
             
 
 Respectfully submitted, 
    
MARKENZY LAPOINTE 
  
 
UNITED STATES ATTORNEY 
 
By:    s/Aimee Jimenez___________  
 
 
 
 
 
 
 
Aimee C. Jimenez 
 
 
 
 
 
 
Assistant United States Attorney 
 
 
 
 
 
 
Court No. A5500795 
 
 
 
 
 
 
99 Northeast 4th Street 
 
 
 
 
 
 
Miami, Florida 33132-2111 
 
 
 
 
 
 
Tel: (305) 961-9028 
 
 
 
 
 
 
Email: aimee.jimenez@usdoj.gov  
 
 
 
 
 
 
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CERTIFICATE OF SERVICE 
 
I HEREBY CERTIFY that on May 29, 2024, I electronically filed the foregoing document 
with the Clerk of the Court using CM/ECF.     
s/Aimee Jimenez____________                           
 
 
 
 
 
 
Aimee C. Jimenez 
 
 
 
 
 
 
  Assistant United States Attorney 
 
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