Order on Restitution as to Eric Dean Sheppard re 291 Notice (Other) — USA v. Sheppard (Dkt. 293, S.D. Fla.)

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U.S. District Court for the Southern District of Florida · No. 1:22-cr-20290-BB · Doc. 293 · 2024-08-27 · Docket on CourtListener

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UNITED STATES DISTRICT COURT 
SOUTHERN DISTRICT OF FLORIDA 
 
Case No. 22-cr-20290-BLOOM 
 
UNITED STATES OF AMERICA, 
 
 
Plaintiff, 
 
v. 
 
ERIC DEAN SHEPPARD, 
 
 
Defendant(s). 
_____________________________/ 
 
ORDER ON RESTITUTION 
THIS CAUSE is before the Court upon the Government’s Motion for Forfeiture and 
Restitution as to Defendant Eric Dean Sheppard. The Government filed Notices Requesting 
Forfeiture, ECF No. [289], and Restitution, ECF No. [291], to which Defendant responded with a 
Memorandum Regarding Restitution, ECF No. [290].  The Court held a hearing on forfeiture and 
restitution on August 23, 2024. The Court has reviewed the filings, the record in this case, and is 
otherwise fully advised.  The Government’s request for restitution is granted in part and denied 
in part. 
The Government seeks restitution as part of the Court’s Judgment and Sentence. It claims 
there are two victims, the Small Business Administration (“SBA”) and Neil Cupersmith. 
I. Restitution to SBA 
The Court first addresses restitution on behalf of the SBA. During the hearing on August 
23, 2024, the parties advised that Defendant agreed to pay the amount owed to the SBA, a total 
of $170,211.80. That amount consists of: (1) the April 15, 2020 PPP loan of $146,457.00, which 
was forgiven by the SBA, ECF No. [291-1]; (2) the interest, $1,582.55, and processing fees, 
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$7,322.85, on that loan, ECF No. [291-1]; and (3) the processing fees for the two PPP loans that 
Defendant paid prior to his sentencing on April 5, 2024. Those fees include (a) $7,419.85 for the 
loan of $148,397.00 underlying Counts 7 and 8, ECF No. [291-2], and (b) $7,429.55 for the loan 
of $148,591.00 underlying Count 9, ECF No. [291-3]. 
At the hearing, the Defendant tendered a check payable to the SBA for $170,211.80. As a 
result, the Government agreed that Defendant is to receive credit for that amount toward 
restitution after his check clears. 
II. Restitution to Neal Cupersmith 
A. Cupersmith is a Victim and was Directly Harmed 
The Government also seeks restitution on behalf of Neal Cupersmith. Specifically, the 
Government seeks lost income and attorneys’ fees incurred by Cupersmith as part of his response 
to subpoenas and participation in the Government’s investigation and prosecution of this case, as 
listed in ECF Nos. [291-4], [291-5]. ECF No. [291] at 2.  
To be entitled to restitution under the Mandatory Victims Restitution Act, Cupersmith 
must qualify as a victim, so as: 
a person directly and proximately harmed as a result of the commission of an 
offense for which restitution may be ordered including, in the case of an offense 
that involves as an element a scheme, conspiracy, or pattern of criminal activity, 
any person directly harmed by the defendant’s criminal conduct in the course of 
the scheme, conspiracy, or pattern. 
18 U.S.C. § 3663A(a)(2).  
As the Court held during the August 23, 2024 hearing, Cupersmith qualifies as a victim 
under the Mandatory Victims Restitution Act, 18 U.S.C. § 3663A(a)(2). Defendant was 
convicted of four counts of wire fraud for “having devised or intending to devise any scheme or 
artifice to defraud.” 18 U.S.C. § 1343. See also ECF Nos. [60], [190]. As part of that scheme, 
Defendant used Cupersmith’s name on fraudulent tax forms for applications submitted by 
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Defendant to obtain PPP loans to which Defendant was not entitled. The record reflects that 
Cupersmith was initially suspected of participating in Defendant’s criminal conduct, by virtue of 
having his name on the loan applications. Cupersmith was thereafter interviewed by the FBI, 
supplied documents in response to the Government’s subpoenas, expended resources to 
cooperate with the Government, and incurred legal fees after seeking legal advice.  
Cupersmith was required to expend resources and incur legal fees due to Defendant’s 
fraudulent loan applications and Defendant’s use of Cupersmith’s name within them. 
Accordingly, the Court finds that Cupersmith was “directly harmed by the defendant’s criminal 
conduct in the course of the scheme, conspiracy, or pattern.” 18 U.S.C. § 3663A(a)(2).  
B. Lost Income Under 18 U.S.C. § 3663A(a)(4)(A) 
The Court next turns to the amount of restitution to which Cupersmith is entitled. 
In ordering restitution under [18 U.S.C. § 3663A], a court shall order the 
defendant to make restitution to a person who has assumed the victim’s rights 
under paragraph (2) to reimburse that person’s necessary and reasonable— 
(A) lost income, child care, transportation, and other expenses incurred during and 
directly related to participation in the investigation or prosecution of the offense 
or attendance at proceedings related to the offense; 
 
18 U.S.C. § 3663A(a)(4)(A). “The burden of demonstrating the amount of the loss 
sustained by a victim as a result of the offense shall be on the attorney for the Government.” 
18 U.S.C. § 3664(e). Because “[r]estitution is not designed to punish the defendant[,] ... the 
amount ... owed ... must be based on the amount of loss actually caused by the defendant's 
conduct.” United States v. Sheffield, 939 F.3d 1274, 1277 (11th Cir. 2019) (citation omitted) 
(emphasis in original). The “‘use of estimation’ is permitted because ‘it is sometimes impossible 
to determine an exact restitution amount[,]’” for instance in the absence of records. Id. (quoting 
United States v. Futrell, 209 F.3d 1286, 1291–92 (11th Cir. 2000)).  
In its Notice of Restitution, the Government seeks $93,350.00 for lost income related to 
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the Government’s investigation and prosecution of this case. ECF No. [291] at 2. The 
Government attaches an invoice from Cupersmith’s firm for $93,350.00, that includes the lost 
income of Cupersmith, as well as the lost income of other employees, including Alex Zaslow, 
Mark Kravitz, and Tracey Shipton, ECF No. [291-5]. The Government cites no support for its 
request regarding lost income of Cupersmith’s coworkers. Cupersmith is only entitled to recover 
his own “necessary and reasonable” lost income under the statute. See 18 U.S.C. § 
3663A(a)(4)(A) (“a court shall order the defendant to make restitution to a person who has 
assumed the victim’s rights under paragraph (2) to reimburse that person’s necessary and 
reasonable—(A) lost income…” (emphasis added)). Following review of the supporting 
document provided by the Government, ECF No. [291-5], Cupersmith is entitled to recover 
$58,000.00 of lost income for time he spent on the investigation or prosecution of the offense 
and for his attendance at proceedings, ECF No. [291-5] at 2. However, restitution is not 
recoverable for other colleagues’ lost income. 
Accordingly, the Court grants in part and denies in part the Government’s request for 
Cupersmith’s lost income. Restitution is proper for Cupersmith’s lost income in the amount of 
$58,000.00. 
C. Attorneys’ Fees Under 18 U.S.C. § 3663A(a)(4)(A) 
Further, Cupersmith is entitled to recover “expenses incurred during and directly related 
to participation in the investigation or prosecution of the offense or attendance at proceedings 
related to the offense[.]” 18 U.S.C. § 3663A(a)(4)(A). Those expenses include attorneys’ fees. 
See United States v. Battista, 575 F.3d 226, 233 (2d Cir. 2009). In its Notice of Restitution, the 
Government seeks $113,382.00 in attorneys’ fees and represents that it removed from the billing 
summary sent by Cupersmith’s attorneys, ECF No. [291-4], both (a) attorney travel time; and (b) 
court attendance time to get to that amount. ECF No. [291] at 2.  
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In properly awarding the amount of attorneys’ fees that Cupersmith is entitled to, the 
Court determines the “amount of loss actually caused by the defendant's conduct[.]” Sheffield, 
939 F.3d at 1277. The Court finds that because Cupersmith can only recover “necessary and 
reasonable … expenses incurred during and directly related to participation in the investigation 
or prosecution of the offense or attendance at proceedings related to the offense[,]” he is not 
entitled to a portion of the attorneys’ fees sought by the Government. 18 U.S.C. § 
3663A(a)(4)(A). Cupersmith is not entitled to costs incurred after the close of trial. The trial 
concluded on January 11, 2024. ECF No. [179]. Cupersmith did not attend any proceedings after 
that day, as he did not attend Defendant’s sentencing, ECF No. [265], nor the restitution and 
forfeiture hearing held in this Court, ECF No. [292]. Accordingly, Cupersmith is not entitled to 
costs after January 11, 2024 for “attendance at proceedings related to the offense[.]” 18 U.S.C. § 
3663A(a)(4)(A). Once the trial concluded and a verdict was reached on January 12, 2024, ECF 
No. [185], Cupersmith no longer participated “in the investigation or prosecution of the 
offense[.]” 18 U.S.C. § 3663A(a)(4)(A). Accordingly, Cupersmith cannot recover any attorneys’ 
fees incurred after January 11, 2024. 18 U.S.C. § 3663A(a)(4)(A).1 
The Government attached two documents in support of its request for attorneys’ fees: (1) 
an itemized invoice, submitted by the Government on June 5, 2024, which lists fees incurred by 
date and by attorney but redacts the fee description, and contains entries from August 2023 to 
January 2024 (“the itemized invoice”), ECF No. [258-1]; and (2) a billing summary, listing the 
monthly amount of attorneys’ fees from September 2023 to February 2024, submitted by the 
 
1 The Court has additional reasons to be circumspect when considering the February 2024 
attorneys’ fees. The Court notes that although the billing summary seeks to recover time charged in 
February 2024, the previous attorney invoice submitted by the Government on June 5, 2024, did not 
include any attorneys’ fees for February 2024, ECF No. [258-1]. Further, despite the billing summary 
including attorneys’ fees for “11 hours of court attendance with a billing amount of $3,795” for the month 
of February 2024, the record reflects that the Court did not hold any court hearings in February 2024 nor 
was the case on appeal as of that date. ECF No. [291-4]. 
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Government on August 21, 2024 (“the billing summary”), ECF No. [291-4]. The Court notes 
there are discrepancies in the fee amounts listed in the itemized invoice, ECF No. [258-1], and 
the subsequently filed billing summary, ECF No. [291-4]. For certain months, the billing 
summary lists lower attorneys’ fees than the itemized invoice.2 The Court relies on the lower 
amounts included in the billing summary to determine Cupersmith’s monthly attorneys’ fees, 
aware that “[t]he purpose of restitution is not to provide a windfall for crime victims but rather to 
ensure that victims, to the greatest extent possible, are made whole for their losses.” United 
States v. Martin, 803 F.3d 581, 594 (11th Cir. 2015) (citation and internal quotation marks 
omitted). The Court then deducts fees incurred in January 2024 but after the close of trial from 
the itemized invoice. This “‘use of estimation’ is permitted because ‘it is sometimes impossible 
to determine an exact restitution amount[,]’” Sheffield, 939 F.3d at 1277. 
Next, the Court calculates the amount of attorneys’ fees to which  Cupersmith is entitled. 
First, the Court removes attorneys’ fees expended during the month of February — after trial — 
from the billing summary, as well as attorneys’ court and travel time, as proposed by the 
Government. The monthly fees listed in the billing summary are as follows: 
September – Total Hours 17.2 for a total invoice of $11,832.50 || No court or travel time 
October – Total Hours 66.1 for a total invoice of $39,919.00 || No court or travel time 
November – Total Hours 2.5 for a total invoice of $1,556.00 || No court or travel time 
December –Total Hours 30.3 for a total invoice of $19,767.00 || No court or travel time 
January -Total Hours 38.1 for a total invoice of $25,786.50 || 7.7 hours of court 
attendance with a billing amount of $7,315 
February – Total Hours 49.4 minus 6.1 hours or 43.3 for an invoice of $25,630.50 || 11 
hours of court attendance with a billing amount of $3,795 (the billing summary indicates 
that the lawyers removed the travel time from this entry, which was the only entry 
containing travel time).  
 
ECF No. [291-4]. After subtracting the fees incurred during the month of February 2024, 
 
2 For instance, the billing summary, ECF No. [291-4] at 2, lists a total of $25,786.50 for January 
2024, when the itemized invoice lists a total of $27,735.00 for the same month, ECF No. [258-1] at 31. 
Similarly, the billing summary lists a total of $11,382.50 for September 2023, ECF No. [291-4] at 1, and 
the itemized invoice lists a total of $39,919.00 for the same month, ECF No. [258-1] at 10. 
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as well as court and travel time, Cupersmith’s attorneys’ fees are reduced to $91,546.  
Second, the Court turns to the itemized invoice to remove attorneys’ fees incurred within 
the month of January but after the close of trial on January 11, 2024, ECF No. [258-1]. Those 
costs are listed by individual attorney, and include the following: 
01/12/2024 COMISKY 0.4 $380.00 
01/12/2024 WASSER 1.0 $510.00 
01/17/2024 COMISKY 0.4 $380.00 
01/22/2024 COMISKY 0.4 $380.00 
01/24/2024 FIERRO 0.4 $138.00 
 
ECF No. [258-1] at 31. The January fees incurred after the close of trial total $1,788.00. 
After subtracting the January 2024 fees incurred after the close of trial, Cupersmith is entitled to 
$89,758.00 in attorneys’ fees under 18 U.S.C. § 3663A(a)(4)(A). 
Accordingly, the Court grants in part and denies in part the Government’s request for 
attorneys’ fees. Restitution for attorneys’ fees payable to victim Cupersmith is awarded in the 
amount of $89,758.00. 
Accordingly, it is ORDERED AND ADJUDGED as follows: 
1. The Government’s Notice for Restitution, ECF No. [291], is GRANTED IN 
PART and DENIED IN PART. 
2. The Court ORDERS RESTITUTION for a total amount of $317,969.80. This 
amount consists of: 
a. Restitution to Victim SBA for a total of $170,211.80. 
b. Restitution to Victim Neal Cupersmith for a total of $147,758.00, 
which includes $58,000.00 of lost income and $89,758.00 in attorneys’ 
fees. 
3. An Amended Judgment will follow. 
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DONE AND ORDERED in Chambers at Miami, Florida, on August 27, 2024. 
 
 
 
 
_________________________________ 
BETH BLOOM 
UNITED STATES DISTRICT JUDGE 
 
Copies to:  
 
Counsel of Record 
 
 
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