Court filing
Response in Opposition by USA as to Eric Dean Sheppard — USA v. Sheppard (Dkt. 277, S.D. Fla.)
Filed July 11, 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 | 2024-07-11 |
U.S. District Court for the Southern District of Florida · No. 1:22-cr-20290-BB · Doc. 277 · 2024-07-11 · Docket on CourtListener
Full text
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
RENEWED MOTION FOR RELEASE PENDING APPEAL
The United States of America, through the undersigned Assistant United States Attorney,
hereby opposes the defendant’s renewed motion for bond pending appeal, and in support thereof
states as follows:
The defendant raises two arguments to request for a second time that he be allowed to
remain on bond pending appeal: (1) that the Supreme Court’s granting of certiorari in the appeal
of United States v. Kousisis, 82 F.4th 230 (3d Cir. 2023), raises a substantial question as to the
viability of the defendant’s wire fraud convictions; and (2) that the Court committed a “debatable”
sentencing error in the loss calculation that forms the basis of the sentencing guideline range.
Neither issue presents a substantial question for the Court to reverse its prior decision to deny bond
pending the defendant’s appeal.
The Third Circuit in Kousisis rejected the appellants’ challenge to their wire fraud
convictions that involved a scheme in which they made material misrepresentations about the
involvement of “disadvantaged business enterprises” (DBEs) in the construction projects that were
funded by a Department of Transportation contracts they were awarded. The Third Circuit
Case 1:22-cr-20290-BB Document 277 Entered on FLSD Docket 07/11/2024 Page 1 of 3
Page 2 of 3
rejected the Appellants’ argument that the absence of a “true” DBE was not a pecuniary loss to the
DOT, explaining that “obtaining the government’s money or property was precisely the object of
Appellants’ fraudulent scheme.” Id. at 240.
The petition for certiorari posed several questions centered around government contracts.
The questions posed included: “[w]hether all contract rights are ‘property’” and “[w]hether a
sovereign’s statutory, regulatory, or policy interest is a property interest when compliance [with
such governmental interests] is a material term of payment for goods or services.” 2024 WL
750795.
The Supreme Court’s review of the Kousisis decision does not call into question the
Eleventh Circuit’s decision in United States v. Watkins, 42 F4th 1278 (11th Cir. 2022), or the many
cases in which loan fraud, and CARES Act loan fraud in particular, have been prosecuted using
the wire fraud statute. The defendant has cited no case that calls into question the applicability of
the wire fraud statute in a loan fraud context – where the object of the fraud was to obtain money
from the lender, and the defendant fundamentally lied about his businesses’ qualifications to
receive that money.
The defendant also argues that the Court debatably erred in calculating the intended loss
under Section 2B1.1 of the U.S. Sentencing Guidelines because it misinterpreted what “intended
loss” means under the guidelines. The Court determined the loss amount at sentencing based on
the actual loss amount, not the intended loss. For the purpose of the sentencing guidelines
calculation, the Court determined the loss amount to be the amount of the three Paycheck
Protection Program loans that the defendant was in fact awarded: the PayPal loan awarded to
HM-UP Development Alafaya Trails, LLC ($146,587); the Northeast Bank second draw loan
Case 1:22-cr-20290-BB Document 277 Entered on FLSD Docket 07/11/2024 Page 2 of 3
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awarded to the same company ($148,397); and the Cross River Bank loan awarded to HM
Management and Development, LLC ($148,591). As a result, the total loss amount was in the
range of $250,000 to $550,000 and added 12 offense levels to the guidelines calculation, pursuant
to U.S.S.G. § 2B1.1(b)(1)(G). There can be no “debatable” error regarding the Court’s
interpretation of the “intended” loss because the Court did not base the loss amount on any intended
loss.
For the reasons set forth here and in the government’s response in opposition to the
defendant’s motion for release from custody pending appeal (DE 245), the Court should deny the
defendant’s second motion for bond pending appeal.
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 July 11, 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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