Sentencing Memorandum by USA as to Eric Dean Sheppard — USA v. Sheppard (Dkt. 258, S.D. Fla.)

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U.S. District Court for the Southern District of Florida · No. 1:22-cr-20290-BB · Doc. 258 · 2024-06-05 · 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’ MEMORANDUM WITH SUPPLEMENTAL 
 AUTHORITY REGARDING RESTITUTION FOR VICTIM  
UNDER MANDATORY VICTIMS RESTITUTION ACT 
 
 
The United States of America, through the undersigned Assistant United States Attorney, 
hereby submits this memorandum to supplement its request for restitution for victim Neal 
Cupersmith, in light of the Court’s ruling of June 3, 2024 (DE 251) granting the defendant’s motion 
for judgment of acquittal as to Counts 13 and 14 of the Superseding Indictment.  As discussed 
below, Mr. Cupersmith is a victim of the defendant’s wire fraud scheme under 18 U.S.C. § 3663A.  
The government respectfully requests that the Court’s restitution order include reimbursement to 
Mr. Cupersmith for his lost income and expenses incurred during his participation in the 
investigation and prosecution of the wire fraud offenses for which the defendant was convicted, 
and specifically Counts 8 and 9 of the Superseding Indictment.   
MEMORANDUM OF LAW 
 
At trial, the defendant was convicted of four wire fraud counts, Counts 5, 7, 8, and 9.  
Count 8 involved the defendant’s submission of a false and forged income tax return to support a 
second draw PPP loan application to Northeast Bank on behalf of HM-UP Development Alafaya 
Trails, LLC.  Count 9 involved the defendant’s submission of a PPP loan application to Cross 
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River Bank, with a false and forged income tax return, and a false IRS Form 940, to support the 
loan application made on behalf of HM Management and Development, LLC.  Both wire fraud 
counts expressly listed those false and forged income tax returns for which the defendant stole  
Mr. Cupersmith’s identity, including his signature and preparer tax identification number. 
 
Mr. Cupersmith is requesting that he be reimbursed for the attorney’s fees he incurred in 
connection with the prosecution of this case.  Attached as Exhibit 1 are the attorney’s fees 
invoices, which were previously provided to defense counsel.  Mr. Cupersmith also requests that 
he be reimbursed for his lost income to his firm from the time he and Mr. Alex Zaslow spent 
preparing for their trial testimony and the time they spent at the trial.  The itemization of those 
expenses is attached as Exhibit 2, and were previously provided to defense counsel.  As a victim 
in this case, Mr. Cupersmith has provided a victim impact statement addressed to the Court, which 
is being filed separately under seal to preserve Mr. Cupersmith’s privacy regarding the health 
issues he discusses therein.   
     
Under the Mandatory Victims Restitution Act of 1996, 18 U.S.C. § 3663A (“MVRA”), the 
Court “shall order . . . that the defendant make restitution to the victim of the offense” (committed 
by fraud or deceit) for which the defendant has been convicted.  18 U.S.C. §§ 3663A(a)(1), 
3663A(c)(1).  “[I]n the case of an offense that involves as an element a scheme, conspiracy, or 
pattern of criminal activity,” a victim is “any person directly harmed by the defendant’s criminal 
conduct in the course of the scheme, conspiracy, or pattern.”  Id. at § 3663A(a)(2).  The Eleventh 
Circuit has explained “’that by defining ‘victim’ expansively in scheme-based crimes, Congress 
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partially overruled Hughey’s1 restrictive interpretation of the VWPA and expanded district courts’ 
authority to grant restitution.’”  United States v. Edwards, 728 F.3d 1286, 1293 (quoting United 
States v. Dickerson, 370 F.3d 1330, 1338 (11th Cir. 2004)).  “Thus, ‘when the crime of conviction 
includes a scheme, conspiracy, or pattern of criminal activity as an element of the offense, the 
court may order restitution for acts of related conduct for which the defendant was not convicted.’”  
Edwards, 728 F.3d at 1293 (quoting Dickerson, 370 F.3d at 1339)).  
 
In order to be a victim under the MVRA, “the defendant must have proximately caused” 
the harm to the victim.  United States v. Martin, 803 F.3d 581, 593 (11th Cir. 2015).  Because a 
victim can be a person “directly harmed by the defendant’s criminal conduct in the course of the 
scheme,” the victim does not have to be the intended target of the defendant’s fraud scheme.  For 
instance, in Martin, the Eleventh Circuit upheld a restitution order for the successor lenders who 
had purchased fraudulently procured mortgages from the lenders who were defrauded by the 
defendant.  Id. at 593-94; see also, In re Stewart, 552 F.3d 1285, 1289 (11th Cir. 2008) (a party 
may qualify as a victim even though it may not have been the target of the crime, as long as it 
suffers harm as a result of the crime’s commission).  In this case, while Mr. Cupersmith was 
directly harmed by the defendant misusing his identity to submit fraudulent tax returns to the 
lenders, the banks and the SBA were the entities to which the defendant’s fraudulent conduct was 
directed.   
 
The victim in United States v. Battista, 575 F.3d 226 (2d Cir. 2009) is analogous to Mr. 
Cupersmith as a victim in this case.  In Battista, the defendant was convicted of conspiracy to 
 
1 The Eleventh Circuit’s reference to Hughey is the Supreme Court’s decision in Hughey v. 
United States, 495 U.S. 411 (1990). 
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transmit wagering information, which involved betting on NBA games using nonpublic 
information obtained from a co-conspirator who was an NBA referee.  Id.  The district court 
awarded the NBA restitution, which it had requested for the compensation it paid to the conspirator 
referee, the salaries of the NBA employees attributable to reviewing the tapes of games that the 
conspirator refereed, and attorneys’ fees incurred for assisting the government in the investigation 
and prosecution.  Id. at 229.  Battista challenged the restitution award to the NBA as a victim 
under either the MVRA or the Victim and Witness Protection Act of 1982 (“VWPA”).2  In 
upholding the restitution order, the Second Circuit found that the NBA was “directly and 
proximately harmed” by the defendant committing the crime of conspiracy to transmit wagering 
information.  Id. at 231.  The Court reasoned that a “key feature” of the conspiracy was the 
conspirator’s ability to “gain a wagering advantage for Battista by using confidential information 
belonging to the NBA . . . .”  Id.  “Although Battista did not defraud the NBA directly, [the 
Second Circuit] conclude[d] that the district court properly characterized the NBA as a ‘victim’ 
under the VWPA because the NBA was harmed by the conduct committed during the course of 
the conspiracy to transmit wagering information, e.g., Battista’s use of nonpublic information 
solely belonging to the NBA . . . .”  Id.     
 
 Similarly here, the defendant used Mr. Cupersmith’s identity on the fraudulent tax returns 
that he submitted to the PPP lenders.  Even though Mr. Cupersmith was not someone the 
defendant intended to defraud, he was proximately harmed by the defendant’s conduct committed 
 
2 Both the MVRA and VWPA use the same language to determine who is a victim.  The Second 
Circuit in Battista analyzed the NBA’s status as a victim under the VWPA because if concluded 
that it did not need to decide whether the defendant’s conviction for conspiracy to transmit 
wagering information was committed by “fraud or deceit” so as to fall under the MVRA.  575 
F.3d at 230-31.     
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in carrying out his scheme to defraud the lenders and the SBA.  The Court should find that Mr. 
Cupersmith is a “victim” entitled to restitution under the MVRA.   
 
As a victim under the MVRA, Mr. Cupersmith is entitled to restitution for lost income, as 
well as attorney’s fees, which fees are covered by the statute as “other expenses incurred during 
participation in the investigation or prosecution of the offense or attendance at proceedings related 
to the offense.”  18 U.S.C. § 3663A(b)(4).  The MVRA authorizes a victim’s reimbursement for 
these expenses and the government refers the Court to the cases cited in its Response to the 
Defendant’s Objections to the Presentence Investigation Report (DE 241), at 41-42.   
             
 
 
 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  
 
CERTIFICATE OF SERVICE 
 
I HEREBY CERTIFY that on June 5, 2024, I electronically filed the foregoing document 
with the Clerk of the Court using CM/ECF.     
s/Aimee Jimenez____________                           
 
 
 
 
 
 
Aimee C. Jimenez 
 
 
 
 
 
 
  Assistant United States Attorney 
 
Case 1:22-cr-20290-BB   Document 258   Entered on FLSD Docket 06/05/2024   Page 5 of 5

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