Court filing
Transcript of Trial Day 1 as to Eric Dean Sheppard held on 11/27/2023 — USA v. Sheppard (Dkt. 307, S.D. Fla.)
Filed February 25, 2025 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 | 2025-02-25 |
U.S. District Court for the Southern District of Florida · No. 1:22-cr-20290-BB · Doc. 307 · 2025-02-25 · Docket on CourtListener
Full text
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Yvette Hernandez, Official Court Reporter
400 North Miami Avenue, 10-2
Miami, Florida 33128
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
CASE NO. 1:22-cr-20290-BB-1
UNITED STATES OF AMERICA,
Plaintiff,
November 27, 2023
9:01 a.m.
vs.
ERIC DEAN SHEPPARD,
Defendant.
Pages 1 THROUGH 231
______________________________________________________________
TRANSCRIPT OF TRIAL DAY 1
BEFORE THE HONORABLE BETH BLOOM
UNITED STATES DISTRICT JUDGE
And a Jury of 12
Appearances:
FOR THE GOVERNMENT: UNITED STATES ATTORNEY'S OFFICE
AIMEE C. JIMENEZ, AUSA
ANA MARIA MARTINEZ, AUSA
99 Northeast 4th Street
Miami, Florida 33132
FOR THE DEFENDANT: SALE & WEINTRAUB, PA
JAYNE C. WEINTRAUB, ESQ.
2 South Biscayne Boulevard, 21st Floor
Miami, Florida 33131
NELSON MULLINS
JONATHAN ETRA, ESQ.
CHRISTOPHER C. CAVALLO, ESQ.
2 South Biscayne Boulevard, 21st Floor
Miami, Florida 33131
COURT REPORTER: Yvette Hernandez
U.S. District Court
400 North Miami Avenue, Room 10-2
Miami, Florida 33128
yvette_hernandez@flsd.uscourts.gov
ALSO PRESENT: Special Agent Sarah Halleran
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Yvette Hernandez, Official Court Reporter
400 North Miami Avenue, 10-2
Miami, Florida 33128
I N D E X
Certificate..................................... 231
Voir Dire ......................................
37
Jury Sworn ..................................... 158
Preliminary Jury Instructions ..................
165
Government Opening Statement ................... 174
Defense Opening Statement ...................... 191
W I T N E S S
ON BEHALF OF THE GOVERNMENT:
PAGE
ALTHEA HARRIS
DIRECT EXAMINATION BY MS. JIMENEZ 219
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Yvette Hernandez, Official Court Reporter
400 North Miami Avenue, 10-2
Miami, Florida 33128
(Call to order of the Court, 9:01 a.m.)
THE COURT: Hi. Good morning to everyone.
Hope everyone had a nice holiday weekend.
Who are we waiting for?
Go ahead and have a seat.
MR. ETRA: Your Honor, I think Ms. Weintraub has
stepped out for a minute. She'll be back.
THE COURT: Okay. Let me just get into the computer
and we can get started.
(Pause in proceedings.)
COURTROOM DEPUTY: Calling Criminal Case Number
22-20290, United States of America v. Eric Dean Sheppard.
Counsel, please state your appearances for the record,
beginning with the Government.
MS. JIMENEZ: Good morning, Your Honor. Aimee Jimenez
on behalf of the United States.
THE COURT: Good morning.
MS. MARTINEZ: Annie Martinez on behalf of the United
States, Your Honor. Good morning.
THE COURT: Good morning.
AGENT HALLERAN: Special Agent Sarah Halleran, FBI.
THE COURT: Good morning.
MS. FONT: Arianna Font, paralegal for the United
States Attorney's Office.
THE COURT: I'm sorry. I didn't hear you.
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Yvette Hernandez, Official Court Reporter
400 North Miami Avenue, 10-2
Miami, Florida 33128
Is that microphone not working?
MS. FONT: Arianna Font. Paralegal for the United
States Attorney's Office.
THE COURT: Good morning.
MS. FONT: Good morning.
THE COURT: On behalf of the Defendant.
MS. WEINTRAUB: Good morning, Your Honor. Jayne
Weintraub on behalf of Mr. Sheppard, with my co-counsel.
THE COURT: Good morning.
MR. ETRA: Jonathan Etra.
THE COURT: Good morning.
MR. STABILE: Renato Stabile. Good morning.
MR. CAVALLO: And Christopher Cavallo. Good morning,
Your Honor.
THE COURT: Good morning.
MS. WEINTRAUB: And my client, Mr. Sheppard, Your
Honor.
THE COURT: Good morning.
And the other two individuals at counsel table?
MS. PACHECO: Oh. Giselle Pacheco. I work with
Ms. Weintraub.
THE COURT: Good morning.
MS. PACHECO: Good morning, Judge.
MR. CUMMINGS: Brian Cummings.
THE COURT: Could we get to a microphone. And let's
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Yvette Hernandez, Official Court Reporter
400 North Miami Avenue, 10-2
Miami, Florida 33128
have an agreement throughout this trial that any time that
you're addressing the Court, the jury, or a witness, that
you'll speak through a microphone. Thank you.
MR. CUMMINGS: Good morning. Brian Cummings.
THE COURT: Good morning.
MR. OROZCO: Good morning, Your Honor. Alfonso
Orozco, paralegal for the Defense team.
THE COURT: Good morning to you as well.
Is the Government ready to proceed to trial?
MS. JIMENEZ: The Government is ready, Your Honor.
THE COURT: Is the Defendant ready to proceed to
trial?
MS. WEINTRAUB: Yes, Your Honor.
THE COURT: The Court has before it the operative
charging document, which is the Superseding Indictment, Docket
Entry 60. Is that the operative charging document in this
case?
MS. JIMENEZ: It is, Your Honor.
THE COURT: And is the Government proceeding with each
of the 14 counts set forth in the Indictment?
MS. JIMENEZ: We are.
THE COURT: I will be reading the Superseding
Indictment to the jury to determine whether they have any
familiarity with the allegations, and given their experiences,
background, or opinions, whether the information contained in
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Yvette Hernandez, Official Court Reporter
400 North Miami Avenue, 10-2
Miami, Florida 33128
the Indictment would affect their ability to be fair and
impartial. Is there any objection to that?
On behalf of the Government?
MS. JIMENEZ: There's no objection, Your Honor. I
would say that with respect to the aggravated identity theft
counts, the individuals who are identified there are identified
by their initials. I don't know if the Court would like to
state their actual names for the jury.
THE COURT: I think it is important, since I am also
going to ask the Government to set forth the names and a little
bit of the background of the individuals. So with regard to
Counts 10 through 14, if you can provide that information.
MS. JIMENEZ: Right now? Yes?
Yes, Your Honor. With respect to Count 10, the
initials are MS, it's Majed, M-A-J-E-D [sic], Salem, S-A-L-E-M.
Count 11 initials HS -- I'm sorry -- HB is Heimdal,
H-E-I-M-D-E-L [sic], Barrios, B-A-R-R-I-O-S.
And then the next three counts are for NC, and that is
Neal, N-E-I-L [sic], Cupersmith, C-U-P-E-R-S-M-I-T-H.
THE COURT: All right. Thank you, Ms. Jimenez.
Is there any objection by the Defendant --
MR. ETRA: No, Your Honor.
THE COURT: -- to the Court reading the Superseding
Indictment to the jury?
MR. ETRA: No, Your Honor.
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Yvette Hernandez, Official Court Reporter
400 North Miami Avenue, 10-2
Miami, Florida 33128
THE COURT: All right. Early on in this case, when
the Court first scheduled this case for trial, it entered
Docket Entry 13, which was the Court's order regarding pretrial
procedures. That order specified that: "Should any plea offer
be made by the Government, but not accepted by the Defendant,
the Government shall attach to any such offer a cover sheet
with space for the Defendant and the Defendant's attorney to
certify that the Defendant has reviewed the plea offer.
"The cover sheet shall also include space for the
Defendant and the Defendant's attorney to certify the dates of
signature. This document shall be signed by the Defendant and
the Defendant's attorneys before trial. This document shall
not be filed with the Court or otherwise provided to the Court,
but shall be maintained within the Government's case file.
"The parties shall not advise the Court whether any
plea offer has been made or, if so, of the contents of any plea
offer that might have been made.
"Before trial begins, the Court will specifically
inquire as to whether the parties have complied with this
paragraph of this order. The parties shall respond with either
a yes or no, without further elaboration.
"If no plea offer has been made, or if a plea offer
has been made, and the requirements of this paragraph have been
satisfied, the answer shall be yes."
Has the Government complied with this Court's order?
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Yvette Hernandez, Official Court Reporter
400 North Miami Avenue, 10-2
Miami, Florida 33128
MS. MARTINEZ: No, Your Honor.
MS. JIMENEZ: No. No, we have not, Your Honor.
MS. MARTINEZ: And I apologize for that.
THE COURT: Well, why not?
MS. MARTINEZ: I actually just did not see that, Your
Honor.
THE COURT: Well, it's part of the case.
MS. MARTINEZ: I agree, Your Honor. But I just -- I
completely missed that. I think it's an excellent provision.
I just missed it. I did not --
THE COURT: Well, it's an order that the Court
entered, excellent or not. So let's do that now, please,
before the trial begins.
(Pause in proceedings.)
THE COURT: Let me know when we've complied, so we can
move to some of the other issues.
(Pause in proceedings.)
MS. WEINTRAUB: Your Honor, it's now been executed by
myself and my client, and it was prepared by the Government.
THE COURT: Has the Government complied with this
Court's order?
MS. JIMENEZ: We have, Your Honor.
THE COURT: Has the Defendant complied with this
Court's order?
MS. WEINTRAUB: Yes, ma'am.
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Yvette Hernandez, Official Court Reporter
400 North Miami Avenue, 10-2
Miami, Florida 33128
THE COURT: All right. Now, ordinarily, I would have
the Government read to the jury the list of witnesses that it
anticipates that it will call, but the Defendant has filed its
own amended witness list. So at the appropriate time, I will
ask the Government to list the names and a brief background of
the witnesses and then I will also ask the Defendant.
Is that acceptable to both sides?
MS. JIMENEZ: Yes, Your Honor.
MS. WEINTRAUB: Yes, Your Honor.
THE COURT: All right. There are two pending motions
that are before the Court. And I would like to address those
motions before we proceed.
Docket Entry 138 is the Government's Motion in Limine
to Exclude Testimony or Other Evidence of Illness or Medical
Condition. The Government argues that some of the financial
records indicate that some of the loan proceedings were used to
pay for medical expenses. And it's my understanding that the
Defendant is opposed to this motion.
Ms. Weintraub, can you advise the Court why this
information as to the specific medical condition would be
relevant.
MS. WEINTRAUB: Yes, Your Honor.
First of all, the case that the United States cited --
and forgive me, Judge, but my binder is on its way back here --
THE COURT: United States v. Masferrer.
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Yvette Hernandez, Official Court Reporter
400 North Miami Avenue, 10-2
Miami, Florida 33128
MS. WEINTRAUB: I think it's --
THE COURT: It's United States v. Masferrer.
MS. WEINTRAUB: Yes. In that case, Your Honor, the
reason that it was excluded was because the time was
irrelevant. It had nothing to do with what was going on. In
this particular case before the Court, yes, Your Honor -- I
don't know how the Government found out, but yes, my client
suffers from cancer. Yes, he has been under treatment. Yes,
he has had surgery. And the reason that it is relevant is
because it happened during the period of time charged in one of
the counts in the Indictment. It completes the story. There
are people that will testify about it, of what was going on at
the time with my client. It is completely relevant to the case
and completely relevant to the intent of what was going on.
MS. JIMENEZ: Your Honor --
THE COURT: Ms. Jimenez?
MS. JIMENEZ: -- it bears on no issue in this case.
It bears on no issue in this case. It doesn't make anything
that happened with respect to the fraud or anything that
happened with respect to the aggravated identity theft more or
less likely. It is simply an effort to garner sympathy with
this jury. It is completely irrelevant, and frankly
prejudicial.
There is -- I mean, the fact -- and we -- yeah, the
only thing that I could conceive of was the fact that there are
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Yvette Hernandez, Official Court Reporter
400 North Miami Avenue, 10-2
Miami, Florida 33128
proceeds from the accounts that went to medical expenses and
that's -- and it doesn't even seem like they're trying to argue
something based on that point. They're not trying to argue
that: "Well, we need to disclose what the medical issues
were -- the medical condition was because somehow it justifies
the expenditure from PPP proceeds or EIDL loan proceeds."
They're not even trying to make that argument. It's just
something that -- he was experiencing a health condition during
the time that he was committing a fraud. Well, certainly he
was healthy enough to commit the fraud. It didn't impede that.
THE COURT: Well, I think it's the issue with regard
to the expenses themselves. So if, in fact, those expenses are
going to be introduced by the Government to show that they were
used to personally enrich the Defendant and not for any lawful
purpose, then the question is: What was the purpose of these
funds being used?
And I'm not quite clear as to whether the Court should
on a wholesale basis exclude any testimony relating to those
expenses without quite knowing how the Government is going to
be submitting its evidence with regard to the personal
enrichment of certain funds.
MS. JIMENEZ: It's simply a summary witness who will
testify about what the bank records show in terms of the -- and
then there's categories. You know, some funds, X amount of
dollars, were used to pay individuals, certain amount of
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Yvette Hernandez, Official Court Reporter
400 North Miami Avenue, 10-2
Miami, Florida 33128
dollars were used for medical expenses, certain amount of
dollars were used for personal expenses or paying the mortgage.
So it's categories. It's not even --
THE COURT: Well, I understand it's categories. But
those categories may bleed over to another category and not be
solely for an unlawful purpose. And I guess that's where I
don't know what the testimony is going to be that may allow the
Defense to somehow justify some of those expenses. So it's --
MS. WEINTRAUB: Judge, I don't want the Court -- may I
interrupt?
THE COURT: I'm just -- what I don't want to do is
have a mini trial here in terms of what's going to be
introduced.
MS. WEINTRAUB: I just want to clarify. I think the
Court is under a misunderstanding, so I don't want the Court
going further down that road by the Government -- although I'm
glad that they don't understand. But the reality is, is that
it's part of our defense. It's part of our story. He was
distracted. The Government is aware of the fact that he was
relying on others to do certain things. The reason he had to
rely on others to do those things was because he was undergoing
surgery and radiation treatment. It is exactly at that time.
It's part of our defense.
THE COURT: So it's not actually the source of funds
and the following of those funds.
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Yvette Hernandez, Official Court Reporter
400 North Miami Avenue, 10-2
Miami, Florida 33128
MS. WEINTRAUB: Correct. I didn't mean to interrupt
the Court, but I didn't want the Court going on a wrong path.
THE COURT: Well, the reason I say that is it's the
Government's representation that the financial records indicate
that some of the loan proceeds were used to pay for medical
expenses. So it's not a justification as to why those expenses
were paid.
MS. WEINTRAUB: That's correct.
THE COURT: What the Defense is arguing is that there
may be certain circumstances with regard to actions or conduct
in this case.
MS. WEINTRAUB: Yes, Your Honor.
THE COURT: All right. Then, at this point, I have to
either reserve or deny on the motion in limine because I don't
quite know how it's going to be presented by way of the
Government's evidence or by way of an anticipated defense. So
I'll reserve on the motion in limine, and let me hear how the
testimony is presented.
MS. JIMENEZ: And, Your Honor, I would ask that it not
be mentioned in voir dire or opening statement by the Defense
until the Court rules on this issue.
MS. WEINTRAUB: Judge, I don't intend to use it in
voir dire or mention it in voir dire, obviously. But I do
intend to mention it in opening because it's part of the story,
and it's part of the testimony. It is a thread of the Defense
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Yvette Hernandez, Official Court Reporter
400 North Miami Avenue, 10-2
Miami, Florida 33128
case that is essential.
THE COURT: Yeah. I'm not going to --
MS. WEINTRAUB: It is not to garner sympathy in any
way. It is part of what was going on, just like it was part of
COVID to be out of his office. It's the same thing. He asked
somebody to do something because he was in the hospital. He
asked somebody to do something, and who he asked, because of
what was going on with him --
THE COURT: I have confidence that the jury will
follow the Court's instruction with regard to sympathy and
prejudice, and at this point I am going to permit it if it is
part of the defense. I'm certainly not going to tie anyone's
hands at this early stage of the proceedings. So the motion in
limine would be denied without prejudice with regard to
bringing it up to the extent that it somehow is irrelevant to
the Government's case or the Defendant's defenses.
With regard to the second motion to exclude the
proposed expert witnesses, it would appear based on the
Government's motion that the Government certainly has a basis
for this Court to either require the Defendant to precisely set
forth the expert's opinions or to exclude testimony other than
the fact that money is fungible.
MR. ETRA: Your Honor, Jonathan Etra.
We thought -- we have been providing updated reports.
The most recent report specifically provided and identified
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Yvette Hernandez, Official Court Reporter
400 North Miami Avenue, 10-2
Miami, Florida 33128
various opinions in there. It was just that money was fungible
and it included -- it included -- and I've got -- this is
filing -- this is Docket Number 135. And the first paragraph:
"Mr. Bouchner is expected to testify regarding sources and uses
of funds for the companies in the accounts. Mr. Bouchner's
opinion is that the companies collectively paid more for
workers, mortgage interest, utilities, insurance, and other
business expenses than they received in government loans."
Paragraph 2: "Mr. Bouchner" --
THE COURT: I can read it, Mr. Etra. I'm looking at
it, sir. So do you believe that Docket Entry 135 is
sufficient?
MR. ETRA: Well, we do. In addition, Your Honor, we
also provided the same day in an email examples of charts that
the expert's going to rely upon, which breaks down what the
expert opines -- it's not in the report. I have a copy. I can
hand it up to the Court. We emailed it to the Government the
same day that we filed the papers saying that -- that identify,
for example, what's business expenses, what's not, what the
companies he's looking at are.
And that's really one of the key issues, is the
opinion about what's spent on business expenses and what's
personal expenses, obviously, because there definitely is some
money going to personal expenses in these accounts. Our
opinion is that was from personal funds, and the chart
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Yvette Hernandez, Official Court Reporter
400 North Miami Avenue, 10-2
Miami, Florida 33128
supplements that. I have a copy for the Court, if the Court
wants to see it.
THE COURT: Well, the chart was given before or after
the motion was filed?
MR. ETRA: The chart was given before, on
November 24th, the same day we filed our third -- the current
notice that I was reading too much of to Your Honor.
THE COURT: And Ms. Martinez, why is that
insufficient?
MS. MARTINEZ: Your Honor, November 24th -- it was
filed Friday afternoon, and these were sent to us Friday
afternoon after Thanksgiving before a Monday trial, number one.
Number two, to be clear, the United States does not
object to the witness testifying as a fact witness. In other
words, if the witness wants to look at bank records, wants to
summarize bank records, and from reliable evidence create
summaries that are factual, we have no objection to that.
Indeed that's what we're going to do in the Government's case.
What the objection is, is to bringing this witness as
an expert to express opinions that we still don't know what
they are.
THE COURT: Well, specifically with regard to the
expert opinions, why is the spreadsheet coupled with the
response, Docket Entry 135, insufficient?
MS. MARTINEZ: Oh, my goodness. First of all, Your
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Yvette Hernandez, Official Court Reporter
400 North Miami Avenue, 10-2
Miami, Florida 33128
Honor, the -- the only opinions that are stated are that some
things, for example, are personal and some things are not. For
example, that opinion, like -- proposed as an expert opinion,
should you say, if you want to infer that from these charts,
which combine various accounts, Your Honor, he is proposing to
rely on hearsay, on conversations with Jeanette Gonzalez, the
employee of the Defendant, and conversations with the
Defendant. That was just stated to us on Friday afternoon.
And still, they have not provided one word, not even
one word of what supposedly Mr. Sheppard said to the expert, or
what Ms. Gonzalez said to the expert, or how the expert used
any of that information to impact the opinion. So --
THE COURT: I guess maybe I'm misunderstanding the
Government's argument, because it seems to me that
Mr. Bouchner -- is that how you pronounce it --
MR. ETRA: Yes, Your Honor.
THE COURT: -- that: "The companies collectively paid
more for workers, mortgage interest, utilities, insurance, and
other business expenses than they received in government
loans."
MS. MARTINEZ: Your Honor, that's a statement of fact.
That's not an expert opinion.
THE COURT: Well, if the expert is utilizing his
expertise, his knowledge, experience, and training, then it
certainly is consistent with the Court's instruction as to who
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Yvette Hernandez, Official Court Reporter
400 North Miami Avenue, 10-2
Miami, Florida 33128
an expert witness is.
So in terms of the preciseness of the opinions, the
second one is that the companies paid more for workers,
mortgage interest, other business expenses than they received
in government loans -- I'm not quite clear. What is it that
you're seeking to have the Court impose upon the Defense?
I understand the period in terms of the notice. So
the notice was provided now on the 24th. But even if the Court
looks at the notice in terms of rebuttal testimony, you're
asking the Court to strike the witness?
MS. MARTINEZ: Yes, Your Honor, as an expert, not as a
fact witness. Understand --
THE COURT: But then again, I would question if he's
not being brought before this jury as an expert, and he's just
a fact witness, I don't -- I don't -- I don't quite see how
that would be helpful. It's his training, his expertise, that
he's looked at all of these documents; that's where his
testimony rises to the level of an expert.
MS. MARTINEZ: Well, there's two things that are
different about an expert that are very important in this
particular motion. One is the level of disclosure that both
sides must give to each other if it is an expert. It's not
required the same way if it is a fact witness but if as an
expert -- and the rules were just amended to require complete,
all opinions, and for it to be for fulsome. And I cited an
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Miami, Florida 33128
Eleventh Circuit court case where the Eleventh Circuit affirmed
a district court excluding a defense expert precisely because
of this late notice that was not complying with the new amended
rules.
So number one, they have fallen far short of what
would be required if they want to use the witness as an expert.
To give you an example, they do not say the time periods that
they're using for particular accounts or particular opinions.
Your Honor, I've looked at this in detail. It makes a
tremendous difference what account you're looking at.
Number two, another huge difference with respect to an
expert, Your Honor, is what an expert can rely on. And in this
case they are asking for the expert to rely on hearsay, Your
Honor, that has not been even disclosed, not one word that --
the hearsay, what he's relying on, those words, not even one
word has been disclosed to the United States, much less how
those words -- stated by whom -- how they -- how he is relying
on that and which of his many opinions do those words affect.
So we would --
THE COURT: Well, that, I'm in agreement.
MS. MARTINEZ: Yes.
THE COURT: And I've looked at United States v.
Caldwell. I think this case is much different. In United
States v. Caldwell there was no disclosure of a
multi-defendant, very complicated case. Here there has been a
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Miami, Florida 33128
disclosure, and it's inadequate. And I agree with you that
specifically with regard to relying on conversations with
individuals associated with the companies, that that's
insufficient.
So Mr. Etra --
MR. ETRA: May I be heard, Your Honor, on that?
THE COURT: Well, what I'm going to require -- because
certainly the Eleventh Circuit in United States v. Caldwell,
based on the current version of Rule 16, has given the Court
significant latitude to strike or curtail expert witness
testimony, and I'm going to require that the Government provide
notification in writing with regard to who this expert is
relying upon as the basis of his opinions.
MR. ETRA: Your Honor, I think we've already done
that. They had asked us in an email earlier.
THE COURT: Well, it's not before the Court.
MR. ETRA: I know, Your Honor. I understand, Your
Honor. I understand, Your Honor. And I apologize. But
there's a lot that goes back and forth with emails. I
didn't -- then I got their motion. In the email they asked us
on November 20th: "Who are the witnesses? Who were the
people? And give us your notes."
We told them who they are. It's Mr. Sheppard and
Ms. Jeanette Gonzalez, whose name will come up in this case,
who is the bookkeeper, who they know about because they put her
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Miami, Florida 33128
in the grand jury. They asked for interview notes. There are
no interview notes. The expert will testify he puts his
notes -- he makes them into the report.
We've complied with our obligations. If they want to
know the substance of what it is, I'm happy to tell them --
THE COURT: Well, Mr. Etra, I'm putting you in charge,
sir. So by the end of business today, you are to respond
pursuant to Rule 16 and specifically advise the Government of
the precise opinions that Mr. Bouchner is expected to testify
and the basis of those opinions. And if they include
conversations, then you are to list that in an amended notice,
and that's to be filed by today at five p.m. so the Court
doesn't have to rely upon emails that are not before the Court.
The Court can rely upon a notice, so at the time that the
individual is called to testify, if he strays from those
opinions, or strays from those conversations that's the basis
of his opinion, then the Court, pursuant to United States v.
Caldwell, can properly strike those opinions.
MR. ETRA: Understood, Your Honor. Could I ask that
because of the trial we have till -- the calendar ends at
midnight -- till the end of the day --
THE COURT: Certainly. Why don't we say by eight
o'clock tonight.
MR. ETRA: Thank you, Your Honor.
THE COURT: All right.
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MS. MARTINEZ: Your Honor, may I -- if the Court would
allow, I must clarify something, because we have been asking
for supplements and we continue getting insufficient -- so I
would like to clarify one thing. We need to have the words,
some kind of idea what these folks --
THE COURT: Ms. Martinez, I think I'm very specific,
and that is whatever Fourth Amended Notice of Intent to Utilize
Expert Testimony that's going to be filed today by eight
o'clock p.m., that will set forth precisely Mr. Bouchner's
specific opinions that he's going to render at trial, and it
will include the basis of those opinions and the individuals
and the conversations that he's relied upon, and the names of
those individuals, as required by Rule 16.
So when he's testifying, and I get an objection that
it's outside the scope of his testimony and that the Government
is prejudiced, because he -- because the Defense hasn't
provided sufficient notice, I can look at that notice and I can
say you're right and that's excluded, or you're wrong and
that's contained within the fourth notice. Okay?
MS. MARTINEZ: Yes, Your Honor.
THE COURT: All right. Any other issues that we need
to address at this time?
On behalf of the Government?
MS. JIMENEZ: No, Your Honor.
THE COURT: On behalf of the Defendant?
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400 North Miami Avenue, 10-2
Miami, Florida 33128
MS. WEINTRAUB: No, Judge.
THE COURT: All right. Then I'm going to ask that
everyone -- you can certainly move your seats so that you're
facing the prospective panel.
As I did advise, we are bringing in 48 potential
jurors. I hope that soon we will have copies of their
questionnaires for you to review. But this way you will have
positioned yourself so that you are looking at the jury.
We will certainly need to take a lunch recess at or
around one o'clock. And as I stated, I do have a matter at
1:30 that I do need to handle in the courtroom. So that will
be around the time that we'll take our lunch recess.
(Pause in proceedings.)
THE COURT: While we're waiting for the
questionnaires, I do want to reconfirm our anticipated trial
schedule because that will be the trial schedule that I will
provide to the panel to see if there are any hardships.
Today we will proceed to five p.m. Tomorrow we will
proceed from nine to four, Wednesday from nine to five.
Thursday will be nine to five, although, unfortunately, we'll
need to take an extended lunch recess from 11:30 to
1:30 because I do have a couple matters that we'll need to
handle during that time.
COURTROOM DEPUTY: Judge, I have a case -- apparently,
it was reset for Thursday at four o'clock, a sentencing from
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Miami, Florida 33128
one that was on Niubis Garcia.
THE COURT: Oh, okay. That's right.
All right. So November 30th -- my apologies -- will
be until four p.m. And then Friday will be a full day from --
actually, it will be -- can we reset that ten o'clock so we
could just have the nine and 9:30?
COURTROOM DEPUTY: Yes.
THE COURT: So it will be from ten to five on Friday.
Then we'll pick back up on Monday the 4th, and that
will be from nine to five. Tuesday will be nine to five.
Wednesday will be approximately ten to five. And then we will
not be in session on the 7th or the 8th, and we will pick up
again on Monday, December 11th, which will be a full day from
nine to five. And then Tuesday, if we can move that from ten
to nine.
COURTROOM DEPUTY: Yes.
THE COURT: Will be from -- hopefully at nine. So
from nine to five.
But that's the schedule that I will be giving the
jury. That gives us 10 days, and we'll see where we are the
week of December 4th. Has that changed with regard to the
availability of your witnesses or any issues between the time
that we had our calendar call?
MS. JIMENEZ: I don't believe so, Your Honor.
THE COURT: On behalf of the Defendant?
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Miami, Florida 33128
MS. WEINTRAUB: No, Your Honor.
THE COURT: All right, then.
(Pause in proceedings.)
MS. JIMENEZ: Your Honor, we do have one minor issue
to bring up, if we could. In terms of reading our witness
names to the potential jurors, we just learned this morning
that one of our witnesses, the witness coming in from
Breezeline, he's got a very ill family member and it looks like
Breezeline might need to replace him with someone else.
THE COURT: All right.
MS. JIMENEZ: I don't have the name yet.
THE COURT: Which --
MS. JIMENEZ: He's listed at Number 19.
THE COURT: Oh, JR?
MS. JIMENEZ: John Rodenhuis is likely not going to be
a witness, but I don't have a new name right now.
THE COURT: Is it possible to get the name? Only
because I'd like the names to be read.
MS. JIMENEZ: Of course. Of course.
THE COURT: And in looking at Docket Entry 131, do we
need a records custodian for AT&T?
MS. JIMENEZ: We may. We may not.
THE COURT: Well, has there been a stipulation with
regard to the authenticity of the records?
MS. JIMENEZ: There has been -- well, we don't have a
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400 North Miami Avenue, 10-2
Miami, Florida 33128
stipulation. They've indicated that they will not object to
records -- to the authenticity of records for which we have a
custodian of records certification.
THE COURT: But do -- right, a certification. Do we
need to call in records custodians?
MS. JIMENEZ: No. We might need the witness to
clarify something on the actual records, but she's listed --
like I said, we may not call her.
THE COURT: I'm just trying to save time if we don't
need a records custodian.
So you have the name of MH.
MS. JIMENEZ: Yeah.
THE COURT: I don't know why --
MS. JIMENEZ: Yes. Monica Hasbun. Yes. I have the
names, Your Honor.
THE COURT: All right. So with regard to Number 26,
"Custodian of records for entities listed on Notice of Intent
to Seek Admission of Self-Authenticating Records," are any
individuals coming in?
MS. JIMENEZ: Strictly as custodians, I hope not. I
mean, they have represented that they will not object as to the
authenticity of records for which we have records custodian
certificates.
MR. ETRA: We've said it many times to the Government,
and we're happy to say it in court. If they have a business
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400 North Miami Avenue, 10-2
Miami, Florida 33128
records certification that deals with authenticity and the
business records requirements, we're not objecting on that. We
may have relevance objections or other arguments, but in terms
of authenticity, and that it meets the business records
exception, we've told them we're okay with the certification.
MS. JIMENEZ: Yes. So Your Honor, we provided a
physical copy of all the exhibits. I requested the Defense to
indicate as to -- I listed a number of business records, public
records, that I thought were not controversial. I asked for a
stipulation regarding their admissibility. I do not have one.
THE COURT: Well, could we try to get one now, so that
we don't have individuals coming in from these companies just
to testify that these records are business records?
MR. ETRA: We stipulated to that. The only issue is
issues of relevance or whether it needs to come in the case.
We've stipulated on authenticity, we've stipulated on the
business records exception being met for anything where there's
a certification.
THE COURT: All right. Then we don't have anyone
coming in on 26?
MS. JIMENEZ: No.
THE COURT: Okay. And we have MH coming in from AT&T
because there needs -- need to have some clarification --
MS. JIMENEZ: Potentially. Potentially. She may not
need to come.
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THE COURT: All right. So just let me know with
regard to Breezeline who that individual might be.
(Pause in proceedings.)
MS. WEINTRAUB: Judge, may I just ask a procedural
question?
THE COURT: Certainly.
MS. WEINTRAUB: I assume that the jurors are filling
out the questionnaires. Are we going to get the questionnaires
before they are questioned? In other words, when they come in,
will we get them?
THE COURT: We're going to get them before.
Liz, how we doing?
MS. WEINTRAUB: And we'll make copies?
COURTROOM DEPUTY: They're finishing up making all the
copies and bringing them out.
MS. WEINTRAUB: Oh, that's great.
THE COURT: You'll receive a complete copy of the
jurors' answers to the 27 questions.
MS. WEINTRAUB: Okay.
THE COURT: And I'll give you some time to review
those before we bring them in.
MS. WEINTRAUB: Thank you.
(Pause in proceedings.)
MS. WEINTRAUB: Your Honor, may we be excused to go in
the conference room to confer and review these?
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400 North Miami Avenue, 10-2
Miami, Florida 33128
THE COURT: All right. So -- hold on. Let's go back
on the record. I just want to make sure everyone has the sets.
So just give us a moment.
Jackie -- yeah. If we can provide -- I think we need
two and I think we need three over here.
(Pause in proceedings.)
MS. JIMENEZ: Your Honor, we just wanted to ask the
Court -- I understand forfeiture is -- has been separated from
this portion of the trial. We have the forfeiture assistant
United States attorney here. I don't believe that we need him
for anything, correct?
THE COURT: Well, I think we have agreed that to the
extent that the jury finds Mr. Sheppard guilty of one or more
counts, then we would keep this jury here with regard to
forfeiture. Is that correct, Mr. Etra?
MS. MARTINEZ: Your Honor?
THE COURT: Or is there an agreement with regard to
forfeiture?
MS. MARTINEZ: The United States -- the assistant US
attorney who handles asset forfeiture filed a notice with the
Court advising the Court that we were not seeking to forfeit
the house as a specific asset.
MS. JIMENEZ: As a directly forfeitable asset.
MS. MARTINEZ: Right. We would seek it only as a
substitute asset. The rules provide that in such circumstances
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400 North Miami Avenue, 10-2
Miami, Florida 33128
where we are only seeking a money judgment, that that's not
something that goes to the jury. That's something that the
Court could determine at any time, including sentencing.
THE COURT: All right. So in looking at the
forfeiture allegations, you are not seeking forfeiture with
regard to the real property located at 180 Bal Cross Drive, Bal
Harbour?
MS. MARTINEZ: We will seek it as a substitute asset
but not a directly traceable asset such that the jury does not
have to make a finding. It would be after we have the money
judgment we will seek to forfeit it as a substitute asset. The
point is that it's not a finding -- we're just seeking -- from
this Court, we're only seeking a money judgment.
THE COURT: Mr. Etra, are you in agreement with that?
MR. ETRA: Yeah. I don't understand seeking a house
as a substitute. Substitute, you seek assets generally, not
directly to a property. So if by that they're saying they just
want a money judgment and they'll go by the substitute assets
method, if that's what the Government is saying, I actually
didn't research whether we need a jury for that because I'm
hearing this now.
MS. JIMENEZ: There was a notice that was filed by the
forfeiture AUSA. And in terms of the forfeiture proceeding
that happens afterwards, there would be evidence regarding the
connection between the asset that we're seeking to forfeit and
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400 North Miami Avenue, 10-2
Miami, Florida 33128
the illegal proceeds. And for the substitute asset there needs
to be no connection between the two. There needs to be no
tracing. And so there's no determination the jury makes as to
a forfeiture -- I mean as to a substitute asset.
And with respect to the money judgment, that is an
issue for the Court, not for the jury, as I understand it.
MR. ETRA: Your Honor, what they're saying makes
sense. If they're only going with substitute assets, and it's
a money judgment issue, I'm not in a position to say they're
wrong. I'm not going to demand two hours to research it
either.
MS. MARTINEZ: Just for the record, Mr. Hyman, Asset
Forfeiture AUSA is here, and as he filed -- I do believe his
notice --
THE COURT: It's Docket Entry 133, his notice on
forfeiture. So the question is, with regard to this notice,
whether that would eliminate any need for the jury, if the jury
finds the Defendant guilty of one or more of the counts.
MS. JIMENEZ: Correct. And we don't believe that the
jury would be needed.
THE COURT: All right. And you've cited a Fourth
Circuit case from 2006 with regard to substitute asset
forfeiture. And the question is whether the Defendant agrees
that there's no reason to keep the jury here for a
determination.
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400 North Miami Avenue, 10-2
Miami, Florida 33128
MR. HYMAN: Your Honor, Mitch Hyman on behalf of the
United States for forfeiture.
So under Federal Rule of Criminal Procedure 32.2,
Subsection (b)(5), big A, either party can retain -- or
sorry -- either party can request the jury be retained to
determine the forfeitability of specific property. In this
case we're no longer seeking to forfeit specific property so
the Court would determine a forfeiture money judgment, if
that's the route that we decided to take.
MR. ETRA: Your Honor, that's okay --
THE COURT: Yeah. I know that's the Eleventh Circuit
case of US v. Padron, and that's what the rule states. I'm
merely asking with regard to this substitute asset forfeiture
regarding the specific property, whether that would require a
jury finding.
MR. HYMAN: My understanding is that it does not
because the rule states that it's specific property. And with
a forfeiture money judgment, it's not specific property. So
generally the jury would determine the forfeiture nexus between
that specific property and the crime.
For example, if the Defendant paid a down payment on a
house today, and we were seeking to forfeit -- and he used
illicit proceeds for that down payment, and we would seek
forfeiture of that house. A personal money judgment is not
seeking a specific asset that's tied to the crime.
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MR. ETRA: Your Honor, what he's saying makes sense to
me. I mean, if they're not seeking direct assets, only
substitute assets, as a money judgment, I would agree.
THE COURT: All right. Then there would be no need to
keep the jury here following its determination.
Both sides in agreement?
MR. ETRA: Yes.
MS. JIMENEZ: Yes, Your Honor.
THE COURT: All right, then.
Thank you. Thank you, Mr. Hyman.
All right. Both sides now have the completed
questionnaires. And why don't we take a 15-minute recess, give
you an opportunity to review them.
COURT SECURITY OFFICER: All rise.
MS. WEINTRAUB: Judge, may I be heard on that?
Fifteen minutes, Judge, that's like 20 seconds per
questionnaire to review it.
THE COURT: I think you're going to find based on the
questions -- I've just reviewed them now -- that you should
have sufficient time. And again, you'll have an opportunity
after I -- when I'm questioning the jurors, you'll still be
able to look at the questionnaires. But so as not to delay the
selection of our jury, I'll see you back here in 15 minutes.
(Recess from 10:06 a.m. to 10:19 a.m.)
THE COURT: Okay. Go ahead and have a seat.
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If we can bring in the attorneys.
(Pause in proceedings.)
THE COURT: Are counsel in need of an extra chair? We
have an extra chair.
And let me advise, since the jury is outside, if you
do need to use the restroom, if I can ask you at this time to
just come through the jury room and use the restrooms here. We
have restrooms on the other side of the jury room.
MS. WEINTRAUB: May we go now before they come in?
THE COURT: Yes. Yes. Yes. Yes.
I'm waiting for you. So that --
MS. MARTINEZ: I think there's only one in there.
THE COURT: There's two. There are two. So if you
want to --
MS. MARTINEZ: Okay.
THE COURT: So let me ask the attorneys and staff --
you can use the restrooms over here, so that you're not using
the restrooms where the jury is.
(Pause in proceedings.)
THE COURT: Jackie, are they all lined up, ready to
go?
COURT SECURITY OFFICER: Yes.
THE COURT: All right. As soon as Mr. Etra comes
back, just a few moments.
MS. WEINTRAUB: Judge, before they come in, may I say
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something?
(Court reporter interruption.)
THE COURT: You just need to speak into the
microphone.
Is that lavalier not working, Ms. Weintraub?
It's not working?
MS. WEINTRAUB: The what?
THE COURT: Oh. There we go. Okay. It's working.
MS. WEINTRAUB: Judge, before the jurors come in, I
wanted to address the Court, if I might.
THE COURT: Yes. Of course.
MS. WEINTRAUB: While of course I appreciate greatly
the opportunity to have the jurors fill out the questionnaires,
they are of no use if I can't read them. I am not a slow
reader. I am not doing this for purposes of delay, but I do
want to benefit from reading the questions. Like, on two of
the 12 that I have read, I missed something huge because I'm
skimming, and that's avoiding the whole process. So all I can
tell the Court is I've read 12 out of 44. And I would just beg
the Court for 15 more minutes.
We have divided them up -- that's not a way for me to
be responsible for picking a jury, for me to review with my
client, which I'm going to ask of course the opportunity to go
over with him before I make any strikes. I don't have the
information and I don't have the benefit from the
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400 North Miami Avenue, 10-2
Miami, Florida 33128
questionnaires. I'm begging the Court for 15 more minutes.
And I'll sit and do it right in front of the Court.
MS. JIMENEZ: I'll just say I did get to 15.
MS. MARTINEZ: I'm with Jayne. I only got to 12.
MS. JIMENEZ: They also wrote in pencil.
MS. WEINTRAUB: I guess I'm making a joint motion on
behalf of both parties.
THE COURT: All right. Just take another 10 minutes,
then, please.
MS. WEINTRAUB: Thank you, Judge.
(Pause in proceedings.)
THE COURT: Both sides ready to proceed?
On behalf of the Government?
MS. MARTINEZ: I will be proceeding, Your Honor.
THE COURT: On behalf of the Defendant?
MS. WEINTRAUB: No, Judge, we're not. We're not --
Judge, we're not ready. And I really don't want to risk the
ire of the Court, especially starting out. But the Court has
only given us less than one minute each. I know the Government
has not finished either. I'm on 21 of 44. And I'm not a slow
reader, honest, and I'm trying. I don't know what else to say.
But I have not been able or had the time to read the remaining
23.
THE COURT: It's --
MS. WEINTRAUB: That's why I asked for an hour to
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400 North Miami Avenue, 10-2
Miami, Florida 33128
begin with. I mean, we're at like 40 seconds per
questionnaire.
THE COURT: And I've given you now over 30 minutes.
And quite frankly, I'm going to be questioning the prospective
panel. You'll have an opportunity to review them as well, and
you'll also have an opportunity to follow up with questions.
So at some point -- it is now 10:35 -- we've got to get going.
This jury has been here since eight a.m., and they have the
right to either be selected or to be sent back to be selected
by another court.
So at this point, we are going to proceed. The
objection is noted. Let's bring in the panel.
MS. WEINTRAUB: Will the Court note my objection?
Because I think my client's due process rights trump the
jurors' impatience.
THE COURT: Of course. It's recognized on the record.
COURT SECURITY OFFICER: All rise for the jury.
(Before the Panel, 10:38 a.m.)
THE COURT: Good morning to everyone.
Welcome, Ladies and Gentlemen. And good morning.
Let me ask that each of you stand. You will be placed
under oath by the courtroom deputy.
(Panel sworn.)
COURTROOM DEPUTY: Thank you.
THE COURT: All answering in the affirmative.
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Yvette Hernandez, Official Court Reporter
400 North Miami Avenue, 10-2
Miami, Florida 33128
Please be seated.
Welcome, Ladies and Gentlemen.
Thank you for your patience.
I know that many of you -- and go ahead and have a
seat, counsel -- many of you were summoned to be here at
eight o'clock this morning. So I want to thank you for
honoring your summons and being here today.
My name is Beth Bloom. I am a United States District
judge for the Southern District of Florida. And I will be
presiding over the jury selection, as well as the trial.
The right to a trial by jury is one of our most
cherished rights. It is recognized, preserved, and protected
by our constitution, and jury service is one of the most
important duties that you as citizens are called upon to
perform. So thank you for honoring your summons and being here
today. Because I am certainly aware, and all of us are aware,
that for some of you, probably most of you, you had to shuffle
many professional and personal obligations in order to be here
this morning. And for some of you, this may be your first call
to jury service, and these proceedings may be unfamiliar to
you.
I just would ask with a show of hands how many of you
have served on either a state or federal jury or even a grand
jury? Just with a show of hands.
Okay. So not too many of you.
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400 North Miami Avenue, 10-2
Miami, Florida 33128
Well, for those of you that have never served, please
don't feel apprehensive or feel inadequate. Certainly as we go
along I will advise you of the proceedings and your duty and
your role as a juror.
Now, I first and foremost want to thank you for
filling out this very lengthy questionnaire. This
questionnaire expedites the jury selection process. And gives
us an opportunity to get to know each of you. This jury
selection process will be to get to know each of you so that we
can select a fair and impartial jury.
Each of us comes into this courtroom not as a newborn
baby but with life's experiences. And it's those experiences
that we may have had, the opinions that we may hold, and the
relationships that we may have formed that may have an effect
on your ability to serve as a fair and impartial juror in this
case. And that's our duty, is to get to know you so that we
can select those jurors that we feel are most appropriate.
Please don't be offended if you're not selected. It's
just our job to select those jurors that we feel are
appropriate in this case. You may be well suited to serve as a
juror in another case.
So in order to get to know you, we will be asking some
questions to get to know each of you better. If there is a
question that's a little bit too personal, and you don't want
to respond within the earshot of your fellow jurors, it's
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400 North Miami Avenue, 10-2
Miami, Florida 33128
perfectly all right. All you need to do is just raise your
hand, let me know, and at the appropriate break we'll take your
response outside of the earshot of your fellow jurors and just
with the attorneys and the Defendant and myself.
So first of all, let me introduce the court personnel
with whom you'll be working with and their roles and
responsibilities. The courtroom deputies that you have already
met -- Liz Gariazzo, who is my courtroom deputy, and she
assists in the administration of the cases that comprise the
Court's dockets and coordination of our day-to-day operation
not only here in the courtroom but in chambers.
Our court reporter is Yvette Hernandez, and she
transcribes and takes down everything that is said in the
courtroom, including the statements that I'm making, the
answers that will be propounded to you -- and the questions
that are propounded and your answers. So it is very important
that when a question is asked either by me or the attorneys
that you answer verbally, not with a nod or a shake of the
head, but that you also identify yourself if you're not already
identified by your name, so that we have a record of what is
said and who is speaking.
Our courtroom deputy that will be here will also
assist if you have any questions throughout the course of the
trial.
We also have our court security officer, Jackie
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400 North Miami Avenue, 10-2
Miami, Florida 33128
Jerserum, and her job is to enforce the Court's orders and take
charge over you, the jury. If there's a matter that needs to
be brought to my attention, please let Officer Jerserum know
and she will make sure that it's brought to my attention and
certainly you'll be heard at the appropriate time.
Now, as I stated, I'm going to be asking you some
questions that touch on your qualification to serve as jurors.
And you were kind enough to complete these juror
questionnaires. I do want to let you know that copies of your
answers have been provided to the attorneys. This allows us to
expedite the jury selection process. But you may not have
realized that we would rely upon your complete and truthful
answers.
So I would ask at this time that you take out the
questionnaire from your purse, your pocket, your wallet --
raise your hand if you don't have a copy of your
questionnaire -- but please take the time to review each of the
answers that you provided to the questions that were given and
raise your hand if you want to change any of the answers that
you have given.
I would also ask that you be very patient and wait for
a microphone to come to you, and then you'll let me know.
So take the time and then raise your hand, if anyone
wants to change any of the answers you provided to each of the
27 questions.
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400 North Miami Avenue, 10-2
Miami, Florida 33128
(Pause in proceedings.)
THE COURT: Is there anyone that would like to change
an answer? If so, please raise your hand.
Okay. Seeing no hands raised.
Ladies and Gentlemen, is there anyone here that has a
driver's license from the State of Florida but you no longer
live in Miami-Dade County, that is, you've moved out of the
county? If so, please raise your hand.
Seeing no hands raised.
Is there anyone that has difficulty with the English
language, such as that you could not effectively serve as a
juror?
Okay. And if we can wait for the microphone.
Jackie, thank you.
And if we can begin right to my right. And we'll
first begin with Juror Number 5, Ms. Pinero Hernandez.
Is that correct?
PROSPECTIVE JUROR: Good morning.
THE COURT: Good morning.
PROSPECTIVE JUROR: I don't understand English very
well.
THE COURT: Okay. Now, have you understood everything
that I have said so far?
PROSPECTIVE JUROR: No.
THE COURT: Okay. All right. Thank you, Ms. Pinero
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Yvette Hernandez, Official Court Reporter
400 North Miami Avenue, 10-2
Miami, Florida 33128
Hernandez. That's Juror Number 5.
Anyone else, Ladies and Gentlemen?
Okay. Over here to my left.
PROSPECTIVE JUROR: Good morning.
THE COURT: Good morning.
Is this Mr. Bauta Acosta?
PROSPECTIVE JUROR: That's correct.
THE COURT: Yes, sir?
PROSPECTIVE JUROR: Yes. My English is not good.
THE COURT: All right. So now, sir, have you
understood everything I've said so far?
PROSPECTIVE JUROR: I'm sorry?
THE COURT: Okay. Not a problem. I recognize your
difficulty. Thank you, Mr. Bauta Acosta.
Anyone else?
Is that Juror Number 31, Mr. Hechavarria?
PROSPECTIVE JUROR: Armando, 31.
THE COURT: Mr. Mayeta, Armando Mayeta? Yes?
PROSPECTIVE JUROR: Yeah.
THE COURT: Mr. Mayeta?
PROSPECTIVE JUROR: I'm learning English. I think I'm
not ready for this level of English. I'm learning, actually.
THE COURT: All right. So Mr. Mayeta -- and I do see
from your questionnaire -- are you understanding everything
that I'm saying so far, sir?
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400 North Miami Avenue, 10-2
Miami, Florida 33128
PROSPECTIVE JUROR: Partially. Some -- sometimes.
THE COURT: Okay. All right. Thank you, sir.
Anyone else, Ladies and Gentlemen?
PROSPECTIVE JUROR: Yes. Hi. My name is Yenisbel. I
no understand perfect English.
THE COURT: I'm sorry. What is your last name?
PROSPECTIVE JUROR: Perez Marti.
THE COURT: Yes. And Ms. Perez Marti, are you having
difficulty understanding what I'm saying?
PROSPECTIVE JUROR: Yes.
THE COURT: Where do you work, Ms. Perez Marti?
PROSPECTIVE JUROR: DaVita Dialysis.
THE COURT: And you're having difficulty understanding
what I'm saying?
PROSPECTIVE JUROR: Yes. Sometimes. I think I not
understand everything.
THE COURT: Okay. When you say you think you haven't
understood everything --
PROSPECTIVE JUROR: Yes.
THE COURT: -- were you able to read and complete this
questionnaire?
PROSPECTIVE JUROR: Yes.
THE COURT: So, so far, have you understood everything
that I've said in the courtroom?
PROSPECTIVE JUROR: Yes.
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400 North Miami Avenue, 10-2
Miami, Florida 33128
THE COURT: All right. So are you -- are you
concerned, Ms. Perez Marti, that there may be words said during
the course of this trial that you don't understand?
PROSPECTIVE JUROR: Yes.
THE COURT: All right. But you've understood
everything so far, correct?
PROSPECTIVE JUROR: Yes.
THE COURT: All right. So Ms. Perez Marti, can we
have an agreement that if at any time I say something, or the
lawyers say something, and you don't understand, just raise
your hand? But if you haven't raised your hand throughout this
jury selection process, can we agree that you have understood
everything so far?
PROSPECTIVE JUROR: Yes.
THE COURT: All right. Thank you, Ms. Perez Marti. I
appreciate that.
Anyone else, Ladies and Gentlemen?
All right. Seeing no hands raised.
Is there anyone here that has been convicted of a
felony offense that has not been set aside by a post-conviction
proceeding or a pardon by the Governor or the President? If
so, please raise your hand.
Seeing no hands raised.
Let me formally call the case. This is the case of
the United States of America v. Eric Dean Sheppard. And I'm
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Yvette Hernandez, Official Court Reporter
400 North Miami Avenue, 10-2
Miami, Florida 33128
going to ask the attorneys to introduce themselves and to
introduce those at counsel table.
We'll first start on behalf of the Government.
MS. JIMENEZ: Good morning, Ladies and Gentlemen.
Oh -- good morning, Ladies and Gentlemen. My name is
Aimee Jimenez. I'm an assistant United States attorney here in
Miami. I represent the United States in this case. With me is
my colleague Ana Maria Martinez, also from the United States
Attorney's Office; Sarah Halleran, special agent with the FBI;
and Arianna Font, paralegal with the United States Attorney's
Office.
Thank you.
THE COURT: And Ms. Jimenez, is the Government ready
to proceed to trial?
MS. JIMENEZ: We are, Your Honor.
THE COURT: Thank you.
On behalf of the Defendant? Ms. Weintraub?
MS. WEINTRAUB: Thank you, Judge.
Good morning. I am Jayne Weintraub. I'm representing
Eric Sheppard, who is charged in this case as the Defendant,
who is right there.
Along with me are my colleagues Jonathan Etra, Renato
Stabile, Chris Cavallo, Bill Wenzel and Courtney McGinnis.
THE COURT: Thank you, Ms. Weintraub.
And is the Defendant ready to proceed to trial?
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400 North Miami Avenue, 10-2
Miami, Florida 33128
MS. WEINTRAUB: Yes, we are, Your Honor.
THE COURT: Thank you.
Now, Ladies and Gentlemen, you were introduced to the
attorneys, those at counsel table, including the Defendant,
Eric Sheppard. Do any of you know any of them? If so, please
raise your hand.
Okay. If we can have a microphone over here, please.
And this is -- is this Mr. Gandolfo?
PROSPECTIVE JUROR: Yes. Yes. So I met Eric Dean
Sheppard years ago at Canyon Ranch. I just wanted to disclose
that.
THE COURT: All right, sir. Now, do you have a social
friendly relationship with Mr. Sheppard?
PROSPECTIVE JUROR: No.
THE COURT: All right.
PROSPECTIVE JUROR: No.
THE COURT: And you just met each other, and that was
the beginning and the end of the relationship?
PROSPECTIVE JUROR: Yes. It was just visiting the
Canyon Ranch project development. I was working for another
developer at the time.
THE COURT: All right. Now, Mr. Gandolfo, the fact
that you have met Mr. Sheppard, do you believe that that would
have any effect on your ability to serve as a fair and
impartial juror in this case?
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400 North Miami Avenue, 10-2
Miami, Florida 33128
PROSPECTIVE JUROR: Not that I met with him, but I do
have under my employment now his former sales director, which
is now my sales director.
THE COURT: All right. So there is a relationship
because your sales director was his former sales director?
PROSPECTIVE JUROR: Correct.
THE COURT: Would that have an effect on your ability
to serve as a fair and impartial juror in this case?
PROSPECTIVE JUROR: It could.
THE COURT: Well -- and you would be in the best
position to know, Mr. Gandolfo. In other words, if you were
selected to serve as a member of the jury, do you believe that
the fact that your sales director used to be Mr. Sheppard's
sales director -- would that have any effect on your ability to
listen to the evidence, assess the evidence, and make a
determination as to whether the Government has met its burden?
PROSPECTIVE JUROR: I'm not certain.
THE COURT: Okay. Is there some hesitation on your
part, sir?
PROSPECTIVE JUROR: There is, because it's a small
development community.
THE COURT: So is there some hesitation that it might
have an effect?
PROSPECTIVE JUROR: Yes.
THE COURT: All right. Thank you, sir.
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400 North Miami Avenue, 10-2
Miami, Florida 33128
Now, Ladies and Gentlemen, you were introduced to me
and the court personnel. Do any of you know any of us? If so,
please raise your hand.
If we can have a microphone. And that is Ms. Waldron?
PROSPECTIVE JUROR: Waldron. Yes.
THE COURT: Yes.
PROSPECTIVE JUROR: I believe I know your clerk. I've
seen her at the Richard Gerstein building.
THE COURT: Octavia Green?
PROSPECTIVE JUROR: Yes.
THE COURT: All right. And so you've seen each other.
Do you believe that that would have an effect on your ability
to serve as a fair and impartial juror in this case?
PROSPECTIVE JUROR: No.
THE COURT: Okay. Is that the extent of your
relationship?
PROSPECTIVE JUROR: Yes.
THE COURT: Okay. Thank you.
Anyone else, Ladies and Gentlemen?
All right. Seeing no further hands raised.
There are 48 of you that are seated here today. Do
any of you know any of you? I know you spent some time in the
jury pool and also outside when we were lining you up. Does
anyone else know anyone else on the panel? If so, please raise
your hand.
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Yvette Hernandez, Official Court Reporter
400 North Miami Avenue, 10-2
Miami, Florida 33128
Okay. And over here -- is that Ms. Soto, Juror Number
2?
PROSPECTIVE JUROR: I know Albert Elbaz.
THE COURT: And how do you know Mr. Elbaz?
PROSPECTIVE JUROR: My mom works for him.
THE COURT: All right. Now, do you believe that if
you and Mr. Elbaz were both selected to serve on the jury --
would that make you feel uncomfortable if you disagreed with
Mr. Elbaz's opinion?
PROSPECTIVE JUROR: No.
THE COURT: All right. And Mr. Elbaz -- thank you,
Ms. Soto.
Mr. Elbaz, I'll ask you the same question. Is that
the individual that you know, Ms. Soto?
PROSPECTIVE JUROR: Yes, it is.
THE COURT: All right, sir. Now, if you and Ms. Soto
were both selected to serve on the jury, and you disagreed with
her opinion, would you feel uncomfortable expressing that?
PROSPECTIVE JUROR: I don't think I will.
THE COURT: Okay. When you say: "I don't think I
will," we as human beings, we speak in conditional terms
sometimes, but the question is: Is there any hesitation on
your part? Would you be unable or uncomfortable or otherwise
feel that perhaps your ability to independently evaluate the
evidence and make a decision would be compromised if Ms. Soto
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400 North Miami Avenue, 10-2
Miami, Florida 33128
was selected also to serve on the jury?
PROSPECTIVE JUROR: No, Your Honor.
THE COURT: All right. Thank you, sir.
Ladies and Gentlemen, anyone else that may know any
other member of the prospective panel?
Seeing no further hands raised.
I'm going to now ask the attorneys to read the names
of potential witnesses, that is, persons that may be coming
into the courtroom to testify during the course of the trial.
I'm going to ask that they read the names and give you some
background so that you may be able to gauge your familiarity
with these individuals. I'm going to ask that you listen
carefully, because on the other end I'm going to ask if you
recognize any of those individuals.
We'll first start on behalf of the Government.
MS. JIMENEZ: Thank you.
Okay. For the Government, these are the witnesses
whom we may be calling at this trial: Maria Del Pilar Ataca.
She's a part-time worker for the Defendant, Mr. Eric Sheppard.
She lives in Miami, Florida. Elva Jessica Baluarte also works
for the Defendant, Mr. Eric Sheppard. She works at his home,
and she's also a resident of Miami-Dade County, Florida.
Mr. Heimdal Barrios. He is formally an employee -- a
banker at what used to be SunTrust Bank, now Truist Bank.
Martin Joe Beirne. Mr. Beirne is a real estate
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Yvette Hernandez, Official Court Reporter
400 North Miami Avenue, 10-2
Miami, Florida 33128
developer who moved to Florida from Ohio. He lives in Central
Florida currently.
Marlene Crispin is an employee of what is now Truist
Bank out of Doral, Florida.
Neal Cupersmith, an accountant out of Philadelphia.
Juliette Falcone. She's an auditor, a financial
auditor with United States Attorney's office.
Jeanette Gonzalez, the office manager, bookkeeper for
Mr. Eric Sheppard.
Mr. Jeffrey Graff, an accountant and developer who
worked with Mr. Sheppard for a number of years.
Carlos Granda. He is an electrical engineer out of
the Orlando, Florida area.
These names are in alphabetical order, by the way.
They're not the order in which these witnesses may be called at
trial.
Althea Harris. She's deputy director with the Small
Business Administration here in Miami.
Jammie Hutcheson works for PayPal and she resides in
Omaha, Nebraska.
We have Mr. Lavderim Hysa. He's a forensic accountant
with the FBI.
Spencer Lord. He works for the bank -- Cross River
Bank and he lives in Washington State.
Brent Motes. He's also with the US Small Business
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Administration. He lives in Texas.
We have Ms. Tamara Och. She's with the Florida
Department of Revenue and she lives here in Miami, Florida.
Nelia Palancar. She was a loan broker with Nationwide
Lending Direct, here in Miami, Florida as well.
Mr. Philip Palmer. He is with the Internal Revenue
Service.
We have Mr. John Rodenhuis with Breezeline, who
unfortunately this morning advised us that he's got a family
member with a serious illness. He may not be here and we may
have someone else from Breezeline.
Mr. Maged Salem. He lives in Orlando. He is the
former owner of the Mattress1One retail stores.
Mr. Samuel Ciprich, a painter out of Winter Park,
Florida.
David Toye. He is a banker with Northeast Bank in
Portland, Maine.
Ian Zalewski -- Zaleski [sic] -- with ACAP SME, a loan
processor, and he lives in Chicago, Illinois.
Alex Zaslow an accountant also with Mr. Neal
Cupersmith's firm in, Philadelphia.
And then finally Monica Hasbun, AT&T in Miami Florida.
Thank you.
THE COURT: All right. Thank you, Ms. Jimenez.
Now, Ladies and Gentlemen, do any of you know any of
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400 North Miami Avenue, 10-2
Miami, Florida 33128
those individuals? If so, please raise your hand.
All right. On behalf of the Defendant?
MR. ETRA: First individual, Scott Bouchner. He's an
accountant here in Miami.
Vanessa Gonzalez, an individual who worked for
Mr. Sheppard's companies in Miami.
Glenn Sheppard, who is Eric Sheppard's brother, who
also does work for Mr. Sheppard's companies, and he lives in
Miami.
Kerby Kleef, a construction worker, who worked and
works for the Defendant's companies, and he's in the
Orlando/Central Florida area.
Mercedes Fonseca also worked with Defendant's --
excuse me -- Mr. Sheppard's companies in the Orlando area with
building permitting-type issues.
Robert Kallman, K-A-L-L-M-A-N. He lives -- he's from
New York, and he's involved in ownership of some of the
companies in the case.
Leon Wildstein, a businessman here in Miami.
And Ruben Salama, also a businessman here in Miami.
THE COURT: Thank you, Mr. Etra.
Ladies and Gentlemen, do any of you know any of those
individuals? If so, please raise your hand.
Seeing no hands raised.
Now, we are here because an Indictment was filed
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400 North Miami Avenue, 10-2
Miami, Florida 33128
informing the Defendant Eric Sheppard that he is accused of
certain crimes, and he is called upon to respond to the
Indictment. The Indictment is not evidence. The Defendant in
this case responded to the accusations contained in the
Indictment by saying four words: "I am not guilty." And those
words carry a great deal of weight because we are now beginning
a jury trial where the Government is required to prove beyond a
reasonable doubt that the Defendant is guilty before he may be
found guilty.
The fact that an Indictment exists does not mean that
which is alleged actually happened. That is what you, if you
are selected as a member of the jury -- you will determine.
And that is what the Government must prove to you beyond a
reasonable doubt.
At this time, I'm going to read the Superseding
Indictment, which are the allegations that the Government has
made.
The General Allegations refer to the Small Business
Administration, the COVID-19 emergency, and the CARES Act. It
describes the Paycheck Protection Program. It describes the
Economic Injury Disaster Loan program. And it states the
following: "The Coronavirus Aid, Relief, and Economic Security
(CARES) Act was a federal law enacted on March 27th, 2020, to
provide emergency financial assistance to Americans suffering
economic harms from the COVID-19 pandemic. To achieve this
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400 North Miami Avenue, 10-2
Miami, Florida 33128
goal, the CARES Act established new temporary programs and
expanded existing programs administered by the United States
Small Business Administration.
"One source of relief provided by the CARES Act was
the authorization of forgivable loans to small businesses for
job retention and certain expenses through a program referred
to as the Paycheck Protection Program, the PPP. Businesses
could apply for PPP loans by submitting a PPP loan application.
The PPP loan application required that these businesses
acknowledge through authorized representatives the program
rules and make certain affirmative certifications to be
eligible to obtain the PPP loan.
"In the PPP loan application, these businesses through
authorized representatives had to state their average monthly
payroll expenses and the number of employees. Because
independent contractors were able to apply for PPP loans on
their own, employers' payroll calculations and number of
employees were based on wages paid to W-2 employees, not
payments to independent contractors.
"The employers' payroll exceptions were used to
calculate the amount of money the applicant businesses were
eligible to receive under the PPP. In addition, these
businesses had to provide documentation evidencing their
payroll expenses. Typically, businesses would supply documents
showing the amount of payroll taxes reported to the IRS.
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400 North Miami Avenue, 10-2
Miami, Florida 33128
"A PPP loan application had to be processed by a
participating lender or the participating lender's delegee.
"If a PPP loan application was approved, the lender
funded the PPP loan using its own monies, which were fully
guaranteed by the SBA.
"Data from the application, including information
about the borrower, the total amount of the loan, and the
reports and documentation regarding the business's income and
expenses, were transmitted by the lender to the SBA in the
course of processing the loan.
"PPP loan proceeds were required to be used by the
business on certain permissible expenses: employee payroll
costs, interest on mortgages, rent, and utilities.
"The PPP allowed the interest and principal on the PPP
to be entirely forgiven if the business spent the loan proceeds
on these expense items within a designated period of time and
used a defined portion of the PPP loan proceeds on payroll
expenses.
"The Economic Injury Disaster Loan, the EIDL, program
was an SBA program that existed before the COVID-19 pandemic to
provide low-interest financing to small businesses, renters,
and homeowners in regions affected by declared disasters. The
CARES Act authorized the SBA to provide EIDLs to eligible small
businesses experiencing substantial financial disruptions due
to the COVID-19 pandemic.
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400 North Miami Avenue, 10-2
Miami, Florida 33128
"In order to obtain a COVID-19 EIDL, a qualifying
business was required to submit an EIDL application to the SBA
and provide information about its operations, such as the
number of employees, and gross revenues, and cost of goods sold
for the 12-month period preceding January 31st, 2020. The
applicant was also required to certify that the information in
the application was true and correct to the best of the
applicant's knowledge.
"EIDL applications were submitted directly to the SBA,
which processed the applications with support from a government
contractor. The amount of the loan, if the application was
approved, was determined based in part on the information
provided in the application concerning the number of employees,
gross revenues, and cost of goods sold. The SBA issued any
funds under an EIDL directly to the applicant.
"HM-UP Development Alafaya Trails, Alafaya Trails, was
a Florida limited liability company, with its principal address
in either Miami, Florida or Bal Harbour, Florida.
"HM Management and Development, LLC, HMMD, was a
Florida limited liability company with its principal address in
either Miami, Florida or Bal Harbour, Florida.
"HM Four, LLC, HM Four, was a Florida limited
liability company with its principal address the either Miami,
Florida or Bal Harbour, Florida.
"Defendant Eric Dean Sheppard was arrested in
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400 North Miami Avenue, 10-2
Miami, Florida 33128
Miami-Dade County. Sheppard was the manager of Alafaya Trails,
HMMD, and HM Four. Sheppard had access and control over the
bank accounts of Alafaya Trails, HMMD, and HM Four at SunTrust
Bank.
"Bank Processor 1 was a third-party company processor
based in San Jose, California that processed the PPP loan
applications for Bank 1. Bank Processor 1 processed PPP loan
applications at its offices in Wilmington, Delaware,
Conshohocken, Pennsylvania, and Timonium, Maryland. Bank 1 was
a financial institution based in Salt Lake City, Utah that was
insured by the Federal Deposit Insurance Corporation. Bank 1
was an approved SBA lender of PPP loans.
"Bank Processor 2 was a third-party company processor
based in Chicago, Illinois that processed the PPP loan
applications for Bank 2. Bank Processor 2 processed PPP loan
applications at its office in Chicago, Illinois. Bank 2 was a
financial institution based in Portland, Maine that was insured
by the FDC -- FDIC. Bank 2 was an approved SBA lender of PPP
loans.
"Bank 3 was a financial institution based in Fort Lee,
New Jersey and was insured by the FDIC. Bank 3 was an approved
SBA lender of PPP loans.
"Counts 1 through 9, Wire Fraud. From in or around
April 2020 through in or around March 2020, in Miami-Dade
County, in the Southern District of Florida and elsewhere, the
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Miami, Florida 33128
Defendant did knowingly, with the intent to defraud, devise,
and intend to devise a scheme and artifice to defraud and
obtain money and property by means of materially false and
fraudulent pretenses, representations, and promises, knowing
that the pretenses, representations, and promises were false
and fraudulent when made, and for the purpose of executing the
scheme and artifice, did knowingly transmit, and cause to be
transmitted by means of wire communication in interstate
commerce certain writings, signs, signals, pictures and sounds,
in violation of Title 18, United States Code, Sections 1343 and
2.
"It was the purpose of the scheme and artifice for the
Defendant and his accomplices to unlawfully enrich themselves
by, among other things, A, submitting and causing the
commission of false and fraudulent applications and supporting
documents for loans and grants made available through the SBA
to provide relief for the economic effects caused by the
COVID-19 pandemic, including PPP loans and EIDLs; and B,
diverting fraud proceeds for the Defendant's personal use, the
use and benefit of others, and to further the fraud.
"The manner and means by which the Defendant and his
accomplices sought to accomplish the object and purpose of the
scheme and artifice included, among other things, the
following: Eric Dean Sheppard and his accomplices submitted
and caused to be submitted false and fraudulent PPP loan and
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400 North Miami Avenue, 10-2
Miami, Florida 33128
EIDL applications on behalf of Alafaya Trails, HMMD, and HM
Four via interstate wire communications.
"The PPP loan applications submitted and caused to be
submitted by Eric Dean Sheppard masked payments to independent
contractors as wages paid to W-2 employees in order to qualify
for the PPP loans.
"The PPP loan and EIDL applications submitted and
caused to be submitted by Eric Dean Sheppard included falsified
documents, such as Internal Revenue Service and Florida
Department of Revenue forms. The applications also
misrepresented the type of business the borrowing entities were
engaged in, as well as revenues, monthly payroll, and number of
employees.
"Some of the falsified documents submitted and caused
to be submitted by Eric Dean Sheppard in support of the false
and fraudulent PPP and EIDL applications contain the names and
forged signatures of others without the knowledge or consent of
those individuals.
"Based on the false and fraudulent PPP loan and EIDL
applications submitted as part of this scheme, Bank 1, Bank 2,
Bank 3, and the SBA disbursed loan proceeds to bank accounts
controlled by Eric Dean Sheppard that were held by Alafaya
Trails, HMMD, and HM Four via interstate wire transmissions.
"Eric Dean Sheppard and his accomplices used the
proceeds from the fraud scheme for their own use, the use of
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Miami, Florida 33128
others, and to further the fraud.
"On or about the dates specified, as to each count
below, in the Southern District of Florida and elsewhere, the
Defendant Eric Dean Sheppard, for the purpose of executing and
in furtherance of the aforesaid scheme and artifice to defraud,
and to obtain money and property by means of materially false
and fraudulent pretenses, representations, and promises,
knowing that the pretenses, representations, and promises were
false and fraudulent when made, did knowingly transmit and
cause to be transmitted in interstate commerce by means of wire
communication certain writings, signs, signals, pictures, and
sounds.
"Count 1, October 22nd, 2020, electronic submission of
a false and fraudulent EIDL application on behalf of HM Four
from the Southern District of Florida to the SBA, resulting in
an EIDL payment of approximately $150,000.
"Count 2, November 4th, 2020, electronic submission of
a falsified lease agreement on behalf of HM Four's EIDL
application from the Southern District of Florida to the SBA.
"Count 3, November 12th, 2020, electronic submission
of a falsified letter from a banker in support of HM Four's
EIDL application from the Southern District of Florida to the
SBA.
"Count 4, January 19th, 2021, electronic submission of
a false and fraudulent PPP second draw loan application on
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Miami, Florida 33128
behalf of Alafaya Trails from the Southern District of Florida
to Bank Processor 1.
"Count 5, February 11th, 2021, electronic submission
of false and fraudulent IRS Form 941s in support of Alafaya's
PPP second draw loan application from the Southern District of
Florida to Bank Processor 1.
"Count 6, February 26th, 2021, electronic submission
of a false and fraudulent IRS Form 1065 in support of Alafaya
Trails' PPP second loan draw application from the Southern
District of Florida to Bank Processor 1.
"Count 7, March 11th, 2021, electronic submission of a
false and fraudulent PPP second loan draw application on behalf
of Alafaya Trails from the Southern District of Florida to Bank
Processor 2, resulting in a PPP loan of approximately $148,397.
"Count 8, March 11th, 2021, electronic submission of
false and fraudulent IRS Form 1065 in support of Alafaya
Trails' PPP second loan draw application from the Southern
District of Florida to Bank Processor 2.
"Count 9, March 12th, 2021, electronic submission of a
false and fraudulent PPP loan application IRS Form 1065 and IRS
Form 940 on behalf of HMMD from the Southern District of
Florida to Bank 3, resulting in a PPP loan of approximately
$148,591, in violation of Title 18, United States Code, Section
1343 and 2.
"Counts 10 through 14, Aggravated Identity Theft.
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Miami, Florida 33128
"On or about the dates enumerated in each count below,
Eric Dean Sheppard, during and in relation to a violation of
Title 18, United States Code, Section 1343, wire fraud, as
charged in Counts 2, 3, 6, 8, and 9 of the Superseding
Indictment, did knowingly transfer, possess, and use without
lawful authority the means of identification of another person
as specified in each count below:
"Count 10, November 4th, 2020, name, signature, and
title of MS, used on a falsified lease agreement,
electronically submitted to the SBA in support of HM Four's
EIDL application.
"Count 11, November 12th, 2020, name, signature and
title of HB, used on a falsified bank letter electronically
submitted to the SBA in support of HM Four's EIDL application.
"Count 12, February 26th, 2021, name, employer
identification number, and preparer tax identification number
of NC, used on a falsified IRS Form 1065 tax return
electronically submitted to Bank Processor 1 in support of
Alafaya Trails' PPP second draw loan application.
"Count 13, March 11th, 2021, name, EIN, and PTIN of
NC, used on a falsified IRS Form 1065 tax return electronically
submitted to Bank Processor 2 in support of Alafaya Trails' PPP
second draw loan application.
"Count 14, March 12th, 2021, name, EIN, and PTIN of
NC, used on a falsified IRS Form 1065 tax return electronically
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submitted to Bank 3 in support of HMMD's PPP loan application,
in violation of Title 18, United States Code, Section 1028A,
Subsection (a), Subsection (1) and (2)."
Ladies and Gentlemen, is there anyone that knows
anything about any of the allegations that I have just read to
you from the Superseding Indictment? If so, please raise your
hand.
Seeing no hands raised.
Is there anyone, just hearing about the nature of
these offenses charged in the Superseding Indictment, based on
an experience you may have had, a relationship you may have
formed, or an opinion that you may hold, that feels that you
could not serve as a fair and impartial juror? If so, please
raise your hand.
Seeing no hands raised.
Is there anyone that is taking any medication that may
make you sleepy or groggy? If so, please raise your hand.
Okay. If we can start to my right, Jackie.
Thank you.
PROSPECTIVE JUROR: Hi. How are you?
Anxiety pills.
THE COURT: And you are -- I'm sorry. Your last name?
PROSPECTIVE JUROR: Saywack.
THE COURT: Ms. Saywack. Yes?
PROSPECTIVE JUROR: Yes. I take anxiety pills and it
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Miami, Florida 33128
does make me a little sleepy.
THE COURT: All right. And Ms. Saywack, is there
anything that you can do during the course of the trial that
may allow you to focus on the testimony and the evidence
presented in the courtroom?
PROSPECTIVE JUROR: Just the thought of me coming here
my anxiety was up way high. So right now I'm still a little
sleepy. So I don't know how much it's going to take part in me
making a decision.
THE COURT: All right. But right now -- and I
understand you're nervous. It's the first time you've been
called to jury duty. But with regard to the anxiety
medication, is that -- I understand that you take that. And do
you take that over the course of each day? Did you take that
this morning?
PROSPECTIVE JUROR: Yes.
THE COURT: All right. And I assume you're going to
continue to take that anxiety medication?
PROSPECTIVE JUROR: Yes.
THE COURT: And what do you do during the course of
the day, Ms. Saywack, that may assist you in staying focused,
even in light of taking the anxiety medication?
PROSPECTIVE JUROR: Just to be relaxed.
THE COURT: Okay. And what do you do to allow
yourself to relax during the course of the day?
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PROSPECTIVE JUROR: Be with my pets.
THE COURT: Okay. When you're not with your pets.
Like I know you're not working at the moment.
PROSPECTIVE JUROR: Correct.
THE COURT: But you were working at Kohl's and
Walmart. So when you're not with your pets, what do you do to
assist yourself while you're taking the anxiety medication?
PROSPECTIVE JUROR: I'm with family, with someone
always.
THE COURT: Okay. All right. Now, Ms. Saywack, is
there any other medication other than the anxiety medication
that may make you sleepy or groggy?
PROSPECTIVE JUROR: No.
THE COURT: Okay. All right. Thank you, Ms. Saywack.
And I think there was someone else that raised their
hand.
PROSPECTIVE JUROR: I did.
THE COURT: Is that Ms. Kennedy?
PROSPECTIVE JUROR: Yes.
THE COURT: Good morning.
PROSPECTIVE JUROR: Good morning.
THE COURT: And Ms. Kennedy, is there anything that --
PROSPECTIVE JUROR: Yes. I take three medications for
immune suppression, and one of them makes me sometimes groggy.
THE COURT: All right. And --
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PROSPECTIVE JUROR: I drink coffee for it.
THE COURT: You do -- what do you do for it?
PROSPECTIVE JUROR: Just coffee.
THE COURT: Okay. All right. Well, you can certainly
bring coffee into the courtroom. And if at any time -- if
you're selected as a juror, and you do need to take a break
just so that you will remain awake, just let the Court know.
All right. Thank you, Ms. Kennedy.
Anyone else, Ladies and Gentlemen, that's taking any
medication that may make you sleepy or groggy?
PROSPECTIVE JUROR: Good afternoon -- good morning.
I'm taking a cold medication. I've recently taken a pneumonia
and a flu shot, and I came down with a cold. And I'm having
trouble with my eyes because I can't -- sunlight is bothering
me.
THE COURT: All right. So Mr. -- is this Mr. Alford?
PROSPECTIVE JUROR: Excuse me?
THE COURT: Are you Mr. Alford?
PROSPECTIVE JUROR: Yes, I am.
THE COURT: All right. And so the sunlight is
bothering you because of the cold?
PROSPECTIVE JUROR: Yes.
THE COURT: All right. Now, here in the courtroom, is
there anything that's bothering you or you just feel like
you're coming down with a cold?
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PROSPECTIVE JUROR: No. I been through it. This is
the best I've been in the last two, three days.
THE COURT: All right, sir.
PROSPECTIVE JUROR: I was coughing and sneezing. This
is the getting better stages, I guess.
THE COURT: All right. We don't want to make you any
sicker or anyone else around you any sicker. So do you believe
that you are feeling better or you're getting worse?
PROSPECTIVE JUROR: I don't think I'm getting worse,
but I'm not great.
THE COURT: All right. So Mr. Alford, do you believe
that you're able to serve given that you have a cold?
PROSPECTIVE JUROR: I don't know. I mean, I'm just --
I'm just trying to get it -- get it done, you know?
THE COURT: Right. I understand when you say you're
just trying to get it done. So you've been called to jury
duty, you're here in the courtroom, and the question is whether
you're taking any medication that may make you sleepy or
groggy, and you've told the Court that you have a cold.
So the question is -- and I understand the sunlight,
but hopefully we're going to make sure that the sunlight isn't
bothering you here in this building. So is there anything that
we can do to assist you? Are you getting better? Do you feel
that the medication -- and I'm not certain -- are you taking
any medication, sir?
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PROSPECTIVE JUROR: I am taking medication.
THE COURT: All right. So do you believe that your
condition would affect your ability to serve as a juror?
PROSPECTIVE JUROR: I don't think so.
THE COURT: All right, sir. So in terms of the cold
medication, is there anything that you can do to assist so that
you are able to focus on the evidence? Are you taking -- if we
took more frequent breaks or -- I'm not certain if you're going
to continue taking the medication, since you're getting better.
PROSPECTIVE JUROR: I just know my eyes run -- I have
to use this tissue -- and my head hurts. But I don't know
what's going to -- the end result. So...
THE COURT: All right. Now, Mr. Alford, did you serve
in the military, sir?
PROSPECTIVE JUROR: Yes, I did.
THE COURT: Thank you for your service.
What branch did you serve in?
PROSPECTIVE JUROR: United States Air Force.
THE COURT: All right. Well, thank you for your
service, Mr. Alford. And I'm certain that you have given a lot
of yourself and you certainly deserve to be recognized.
Ladies and Gentlemen, in time of peace, service on a
jury is the most important service you can provide to your
country, but Mr. Alford has certainly given the ultimate
sacrifice. So thank you for your service, sir.
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PROSPECTIVE JUROR: Thank you.
THE COURT: Anyone else, Ladies and Gentlemen, who is
taking --
(Gallery clapping.)
THE COURT: Yes. Of course. And that deserves --
that deserves certainly recognition. Thank you, sir.
Anyone else taking medication that may make you sleepy
or groggy?
Okay. All right, then.
Now, there are several concepts that I do want to
discuss with you that are at the heart of our criminal justice
system. They are the presumption of innocence, the
Government's burden of proof, and the Defendant's right to
remain silent.
Many of you have heard of a Defendant's presumption of
innocence. And let me say again that the Indictment in a
criminal case is only an accusatory paper which states the
charge or charges to be determined at the trial. It is not
evidence against the Defendant or anyone else. Indeed, as I
stated, the Defendant has entered a plea of not guilty and is
presumed by the law to be innocent.
Every person charged with a crime in this country is
presumed innocent. That right is guaranteed to each of us by
our constitution. In fact, if we were to send each of you into
the jury room to deliberate right now and render a verdict, the
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only possible verdict that you could render would be a verdict
of not guilty.
Is there anyone that has any difficulty accepting this
as the law? If so, please raise your hand.
Seeing no hands raised.
The burden of proving the Defendant guilty rests with
his accuser, the United States Government, and the burden is to
prove the charges beyond a reasonable doubt. Now, the Court is
going to give you instructions at the conclusion of the trial
as it pertains to reasonable doubt. But let me state that it
is a heavy burden that rests on the Government.
The Government has the entire burden of proof, and
what that means is that there's nothing left for the Defendant.
There's nothing for the Defendant to prove to you or to
disprove to you.
Now, the Defendant has the right to remain silent.
The law does not require a defendant to prove innocence or to
produce any evidence at all. And if a defendant elects not to
testify, you cannot consider that in any way during your
deliberations. The Government has the burden of proving a
defendant guilty beyond a reasonable doubt. And if it fails to
do so, you must find the Defendant not guilty.
So if a Defendant does not testify, you cannot hold it
against him. And let me give you an example of how that could
happen. Let's say the case is over, you go back to the jury
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room, and you don't believe that Government has proven its case
beyond and to the exclusion of every reasonable doubt. At that
point, you cannot say to yourself or your fellow jurors:
"Well, I don't believe the Government has proven its case, but
I'm going to find the Defendant guilty anyway because he did
not testify." You cannot do that and you cannot hold it
against the Defendant.
Does anyone feel that they would not be able to follow
the law on the Defendant's right to remain silent? If so,
please raise your hand.
Seeing no hands raised.
Now, as jurors, you are going to be the judges of the
testimony of witnesses, and to do so you'll use certain
common-sense guidelines. Now, you communicate with people
every day, and each time you communicate with someone you make
a determination whether that person who is speaking to you is
being sincere about what he or she is saying, and accurate.
Those same common-sense guidelines are the ones that you're
going to be required to use to judge the credibility,
sincerity, and accuracy of the witnesses that are going to be
brought before you, regardless of the witness's profession.
Now, you may be hearing from certain government
agents. The common-sense guidelines that I just went over in
terms of judging witnesses' credibility are the ones that
you'll need to apply to every witness, regardless of the
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profession.
I also want to deal with the concepts of sympathy and
prejudice. We feel sorry for people in difficult situations.
Unfortunately, sometimes we can also feel prejudice. Neither
sympathy or prejudice may factor into your deliberations. You
are the trier of the fact, and if you allow emotions to cloud
your decision-making you will not be fulfilling your
responsibility.
Is there anyone here that cannot put aside feelings of
sympathy or prejudice or feel because of a religious,
philosophical, or other reason that you cannot sit in judgment
of another? If so, please raise your hand.
Okay. And that is Mr. -- is this Mr. Francis?
PROSPECTIVE JUROR: Yes. This is Julian Francis.
THE COURT: Yes. Mr. Francis, can you share that with
us.
PROSPECTIVE JUROR: Oh, no. I was just basically
agreeing with what you were saying, like religious beliefs and
philosophical beliefs as in not judging anybody, and you know,
judging anybody's life or anything like that.
THE COURT: And you understand, Mr. Francis, that your
role as a juror will be to determine what the facts are in this
case and to apply the facts to the law that I will explain to
you. Do you understand that that will be your role?
PROSPECTIVE JUROR: Yes. I understand that.
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THE COURT: All right. So do you believe that you can
serve as a fair and impartial juror, sir?
PROSPECTIVE JUROR: I'm not sure. I feel like -- like
what you were saying, it's just -- I guess it's like mixed
emotions and stuff. Like, I don't want to be the person to --
I don't know -- decide somebody's judgment. That's basically
what I'm saying.
THE COURT: Okay. And so you feel a little uneasy?
PROSPECTIVE JUROR: Yeah. Somewhat. That's the word.
THE COURT: Okay. So I guess my question to you,
Mr. Francis, is: Can you try to serve as a juror? Is there
anything within your background that would -- would have an
effect on your ability to serve as a fair and impartial juror?
PROSPECTIVE JUROR: Oh, no. No. I can try. I'm just
being honest and giving my honest opinion.
THE COURT: Of course. But do you believe that you
can try?
PROSPECTIVE JUROR: Yes.
THE COURT: All right. Thank you, Mr. Francis.
Anyone else, Ladies and Gentlemen?
Now, moving forward, you may have some very real
concerns about the time that it will take to try the case and
to serve as a juror. So I am going to give you a schedule and
advise you that we do anticipate that this case should take
approximately 10 days to try.
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We will break up the time so that you will have time
in which certainly you will be able to go about your personal
and professional matters, but we will anticipate working from
approximately nine to five p.m. each day. Although there may
be some days where we break early. For example, tomorrow we'll
break at four p.m. And then, on Friday, we'll ask you to come
in at ten a.m. But it will be approximately nine or ten
o'clock in the morning, and then we will break approximately
four or five o'clock p.m., depending where we are with a
witness. And that will be this week.
Then next week, December 4th, we will work only for
three days, and then we will not be working on that Thursday
and Friday. And then the following week will just be the first
two days, the Monday and Tuesday.
Now, does the schedule that I have given to you
present a great personal hardship for anyone -- and when I say
"personal hardship," I mean is there anyone that has been
designated as a sole caretaker, is there anyone that has
non-refundable airline tickets, or anyone that has a scheduled
surgery. And let me say that those are the great personal
hardships that the Court anticipates. And to that end, the
Court would require that you provide some information for the
Court to evaluate.
So is there anyone that has any reason, whether you
are a sole caretaker of an elderly individual or young
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children, and there is no one else to care for them,
non-refundable tickets, or a scheduled surgery that would take
you away from your service as a juror? If so, please raise
your hand.
And we'll first begin on this side, Jackie.
Ms. Soto?
PROSPECTIVE JUROR: Yes. I have a one-year-old at
home, and I'm a stay-at-home mom.
THE COURT: Okay. And who is caring for your child
today?
PROSPECTIVE JUROR: Right now, his dad had to get off
of work for today to take care of him.
THE COURT: Okay. And who -- do you normally take
care of the one-year-old?
PROSPECTIVE JUROR: Yes.
THE COURT: And is it just you and your spouse?
PROSPECTIVE JUROR: Yes. My parents work, so they
can't take care of him.
THE COURT: Okay. So you're the only one that is able
to care for your one-year-old?
PROSPECTIVE JUROR: Yes.
THE COURT: All right. And there are no other family
members to care for your child?
PROSPECTIVE JUROR: They all work.
THE COURT: Okay. Thank you, Ms. Soto.
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Anyone else, Ladies and Gentlemen?
PROSPECTIVE JUROR: Hi. Yes --
THE COURT: Is this Mr. Cordero?
PROSPECTIVE JUROR: Yes.
THE COURT: Oh, yes.
PROSPECTIVE JUROR: So my daughter, she's seven years
old. Usually she's in school during the morning. And in the
afternoons, between me and my wife take care of her.
THE COURT: All right. So your daughter is seven
years old, and she is --
PROSPECTIVE JUROR: In St. Hugh's Catholic School. So
she gets out -- you know, between two and three. We got to
pick her up.
THE COURT: Okay. I'm sorry. So your spouse is
attending college?
PROSPECTIVE JUROR: No. No. No. She works. I work
as well, but we have to fluctuate who to pick her up. So
sometimes I pick her up and sometimes my wife picks her up from
school.
THE COURT: All right. So while you're being called
to jury duty, is there any reason why your wife can't pick up
your child?
PROSPECTIVE JUROR: Well, if it's 10 days, it might be
a problem because obviously she works in the afternoons. I'm
in real estate, so I can work with my schedule, so that
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wouldn't be a problem. But if I'm here --
THE COURT: And where does your child go to school?
PROSPECTIVE JUROR: St. Hugh, Coconut Grove.
THE COURT: And does St. Hugh have an after-care
program that your child attends?
PROSPECTIVE JUROR: There is after care, but we don't
leave her there.
THE COURT: Okay. And she's seven years old?
PROSPECTIVE JUROR: Yeah.
THE COURT: Is that your only child?
PROSPECTIVE JUROR: Yep.
THE COURT: All right. So you and your wife are --
you are each responsible for picking up your child at two p.m.?
PROSPECTIVE JUROR: Between two and three.
THE COURT: All right. So did you want to let me know
at the break, Mr. Cordero, whether your wife is able to pick up
your seven-year-old while you're called to jury duty? Because
as I stated, there will be some days, for example, next
Thursday and Friday, where you'll be able to pick up your
daughter because we will not be in session.
PROSPECTIVE JUROR: Yeah. I'll have to ask her and
we'll have to figure it out.
THE COURT: All right. Thank you, sir.
Anyone else?
And is that Ms. Lane?
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PROSPECTIVE JUROR: Yes. I have a surgical procedure
scheduled for December the 8th.
THE COURT: All right. Is that here in Miami, Ms. --
PROSPECTIVE JUROR: Yes.
THE COURT: All right. Is that where you will -- is
it an outpatient procedure?
PROSPECTIVE JUROR: Yes.
THE COURT: All right. Is that a procedure will
you'll be recovering for a significant period of time?
PROSPECTIVE JUROR: No. I will be coming home after
the procedure. It's an early-morning procedure.
THE COURT: Okay. And is that a procedure where
you'll be able to ambulate after?
PROSPECTIVE JUROR: I wouldn't be able to do anything
that day, that particular day, but the following day I can
resume.
THE COURT: Okay. So I'm going to -- because I
understand that that's obviously very personal to you, your
procedure, I don't want to ask you any more questions about the
procedure. But on December 8th, we're not going to be in
session, and that's a Friday. And then we would not come back
until that Monday. So let me ask you during the break, because
it might be that you could convalesce and be all right to come
back on that Monday, but I want to ask you a little bit about
the specifics and we'll do that during the break.
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Okay? Thank you, Ms. lane.
Anyone else?
PROSPECTIVE JUROR: Hi.
THE COURT: Mr. Rosell?
PROSPECTIVE JUROR: Yes. This Friday I'm out of town
to Knoxville. I didn't book the flight. My wife did. But I'm
pretty sure it's non-refundable. But I could check on the
break and let you know.
THE COURT: And is this for a vacation?
PROSPECTIVE JUROR: My son plays basketball, and he
has a weekend -- we're going to watch him play. We get back
Monday morning.
THE COURT: All right. And do you believe that -- so
you would be leaving this Friday?
PROSPECTIVE JUROR: No. I know I'm leaving this
Friday.
THE COURT: I'm sorry?
PROSPECTIVE JUROR: The flight is booked for this
Friday.
THE COURT: Right. When is the flight booked?
PROSPECTIVE JUROR: Ten a.m. -- no. Noon. Around
noon. Between twelve and one.
THE COURT: All right. And then when would you be
back?
PROSPECTIVE JUROR: Monday -- the 4th of December.
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THE COURT: Are you coming back that Monday or coming
back that Sunday?
PROSPECTIVE JUROR: No. I'm coming back Monday
because he has a game also Sunday evening. So we come back
first thing Monday morning around -- before noon I should be
here.
THE COURT: Okay. And you have some tickets that you
could show the Court?
PROSPECTIVE JUROR: Yeah.
THE COURT: Okay. Thank you, sir.
Anyone else, Ladies and Gentlemen?
Okay. Is there anyone else on this side? Then we'll
move over here.
Yes. All right.
PROSPECTIVE JUROR: Well, Your Honor --
THE COURT: Is this Mr. Elbaz?
PROSPECTIVE JUROR: Yes.
THE COURT: Yes?
PROSPECTIVE JUROR: Thank you.
So -- because you asked about medications and a couple
of other issues that are going on with me. As I'm sitting
here, I'm not really comfortable, and I don't want to give you
my -- well, in public here. Maybe I can sit with somebody
privately to just maybe discuss some of my own concerns or what
I may be prescribed by my physician.
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THE COURT: All right. So you have -- you're on
certain medication and we'll talk about that during the break.
PROSPECTIVE JUROR: That would help me, actually.
THE COURT: All right. Certainly, sir.
PROSPECTIVE JUROR: Thank you.
THE COURT: Anyone else, Jackie, on this side?
Okay. We're over here to my left.
PROSPECTIVE JUROR: Hello. My wife, she's going
through chemotherapy.
THE COURT: Is this Mr. Cauthen?
PROSPECTIVE JUROR: Yes.
THE COURT: Yes?
PROSPECTIVE JUROR: And her next session is
December 14th.
THE COURT: All right. And December 14th -- now, we
are not in session on December 14th. We anticipate that the
case will be concluded by then.
PROSPECTIVE JUROR: Okay. I was just -- because the
thing is I have to be there for the -- if anything happens.
THE COURT: Of course. Of course.
PROSPECTIVE JUROR: If she would be in the ER.
THE COURT: Thank you for sharing that, Mr. Cauthen.
And I've noted that December 14th is a date that you're not
available.
PROSPECTIVE JUROR: Thank you.
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THE COURT: Thank you, sir.
PROSPECTIVE JUROR: Hi. I'm Roni Bennett.
On December 11th I have a doctor's appointment that I
have been trying to get for months. So I believe
December 11th --
THE COURT: What time is your doctor appointment?
PROSPECTIVE JUROR: 10:45.
THE COURT: And how long do you anticipate that
appointment --
PROSPECTIVE JUROR: Probably just two hours.
THE COURT: All right. So if we could accommodate and
work half a day, is that the only --
PROSPECTIVE JUROR: I could try again. But I'm saying
it took several months to -- you know how the medical industry
is. So --
THE COURT: Okay.
PROSPECTIVE JUROR: Okay.
THE COURT: Do you want to share -- is that for a
procedure that you're anticipating having?
PROSPECTIVE JUROR: No. It's a wellness.
THE COURT: Oh. I see. All right. Understood. So
we'll -- let me make note of the December 11th doctor
appointment.
Anyone else?
Mr. Cuba?
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PROSPECTIVE JUROR: Yes. I'll be out of state the
last two weeks of December.
THE COURT: Okay. The last two weeks of December,
which tells me that's the weeks of the 18th and the 25th.
PROSPECTIVE JUROR: Yes.
THE COURT: All right. Thank you, sir.
PROSPECTIVE JUROR: Good morning.
My name is Yennifer Herrera.
THE COURT: Good morning.
PROSPECTIVE JUROR: I'm a single parent and I have to
pick up my daughter every day from school at 2:20.
THE COURT: All right. Is there anyone else that can
assist you, Ms. Herrera?
PROSPECTIVE JUROR: No, not really. My brother is
helping me out today, but he can't do it long-term and I don't
have anyone else that drives and can pick her up.
THE COURT: All right. So you are the only one that
is caring for your child?
PROSPECTIVE JUROR: Yes.
THE COURT: And how old is your child?
PROSPECTIVE JUROR: She's 17.
THE COURT: Oh. Seventeen?
PROSPECTIVE JUROR: Yes.
THE COURT: Oh.
PROSPECTIVE JUROR: She doesn't drive and she doesn't
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use public transportation.
THE COURT: Is there anyone that your child can go
home with?
PROSPECTIVE JUROR: No. She doesn't have anyone from
school that she can come back home with.
THE COURT: Where does she go to school?
PROSPECTIVE JUROR: She goes to Southwest Miami High
School.
THE COURT: And do you pick up your 17-year-old every
day?
PROSPECTIVE JUROR: I do, at 2:20.
THE COURT: All right. And when is your child on a
break? She just got back from the Thanksgiving break. When --
PROSPECTIVE JUROR: She just did, yes.
THE COURT: -- do they have their Christmas break? Do
you know?
PROSPECTIVE JUROR: Excuse me?
THE COURT: When your child is on her Christmas break.
PROSPECTIVE JUROR: I think it's towards the end of
the month.
THE COURT: Okay. But -- so -- and you said it was
Southwest?
PROSPECTIVE JUROR: Southwest Senior High School,
uh-huh.
THE COURT: Thank you, Ms. Herrera.
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PROSPECTIVE JUROR: Thank you.
Oh. I might add that my daughter is on the autism
spectrum disorder, so that's why also she doesn't use public
transportation. So I don't know if that's relevant.
THE COURT: Of course. Thank you, Ms. Herrera. I
appreciate you sharing that.
I think there was someone else behind Mr. Cuba.
Ms. Soto?
PROSPECTIVE JUROR: Hello. Perla Soto.
I have a trip that I'm scheduled to leave Friday and
return on Monday evening. This was scheduled a while ago. I
don't have the receipt because my friend made the reservations
at the hotel. I can request that receipt from her of the
non-refundable hotel.
THE COURT: When are you scheduled to leave?
PROSPECTIVE JUROR: Friday at four o'clock.
THE COURT: And is it on a flight or a cruise?
PROSPECTIVE JUROR: It's -- no. No. It's in a hotel.
I'm going to be -- it's in Orlando.
THE COURT: All right. So you're driving?
PROSPECTIVE JUROR: Yes.
THE COURT: So you're driving at four p.m?
PROSPECTIVE JUROR: Uh-huh.
THE COURT: And then you're coming back when?
PROSPECTIVE JUROR: I will be returning Monday
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evening.
THE COURT: Monday evening, the 4th?
PROSPECTIVE JUROR: Correct.
THE COURT: Is this for pleasure or for work?
PROSPECTIVE JUROR: This is for pleasure. This has
been arranged, and it's non-refundable. So just --
THE COURT: When you say "non-refundable," you mean --
PROSPECTIVE JUROR: The hotel.
THE COURT: -- the hotel?
PROSPECTIVE JUROR: Yeah.
THE COURT: All right. And you could provide that to
the Court?
PROSPECTIVE JUROR: Yes.
THE COURT: Thank you. Thank you, Ms. Soto.
Anyone else, Ladies and Gentlemen?
And is that Ms. Cole?
PROSPECTIVE JUROR: Yes, Your Honor.
My aunt in Chicago is opening a restaurant, and I have
plans to travel December 7th.
THE COURT: Okay. We will not be in session on
December 7th. So that shouldn't be an issue.
PROSPECTIVE JUROR: Okay.
THE COURT: Okay. Thank you.
Anyone else, Ladies and Gentlemen?
MS. MARTINEZ: Your Honor, she's traveling to
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Chicago --
THE COURT: You're leaving December 7th. Let's give
Ms. Cole back the microphone. You're leaving --
PROSPECTIVE JUROR: I want to purchase the ticket for
December 7th because the event is the 10th.
THE COURT: Right. And we're not going to be in
session the 7th, 8th, 9th, and 10th.
Okay. So Ms. Martinez, is there anything else that
you had a concern about?
MS. MARTINEZ: I'm just not clear that she's going to
be back.
THE COURT: Are you going to be back on December 11th?
PROSPECTIVE JUROR: No. I plan to get back on the
15th.
THE COURT: On the 15th.
PROSPECTIVE JUROR: Yes.
THE COURT: Oh, I'm sorry. I thought you were
coming -- all right. So you're going to be in Chicago from
December 7th to December 15th?
PROSPECTIVE JUROR: Yes.
THE COURT: And this is for an opening of a
restaurant?
PROSPECTIVE JUROR: Yes.
THE COURT: So you're making a vacation out of it?
PROSPECTIVE JUROR: Yeah. It's really a -- for
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supporting my family, yes.
THE COURT: And Ms. Cole, is there a reason why you
can't come back on the 10th, so that you're here for the
continuation of the trial?
PROSPECTIVE JUROR: The 10th is a Sunday and the event
is a Sunday.
THE COURT: I'm sorry?
PROSPECTIVE JUROR: The event is a Sunday.
THE COURT: The event is on Sunday?
PROSPECTIVE JUROR: Yes.
THE COURT: Oh, all right. I thought the event was
on -- so you're leaving December 7th for the December 10th
event.
PROSPECTIVE JUROR: Yes.
THE COURT: And are you able to come back for the 11th
trial?
PROSPECTIVE JUROR: No. It would be too early. I
would come back on the 15th.
THE COURT: Is there any reason -- if you were
selected as a member of the jury -- did you already purchase
your tickets?
PROSPECTIVE JUROR: No.
THE COURT: Right. So is there any reason why you
couldn't come back earlier if the event is on December 10th?
PROSPECTIVE JUROR: Okay. So if it's on the 10th, the
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earliest I could come back is a Tuesday, which maybe is the
12th.
THE COURT: On the Monday, December 11th.
PROSPECTIVE JUROR: Okay. I could come back on the
11th if I leave a little early before the Friday.
THE COURT: Okay. All right. Thank you. Thank you,
Ms. Cole.
And Mr. Alford?
PROSPECTIVE JUROR: I'd like to say that I take care
of my elderly wife. She's a dialysis patient. She goes
Monday, Wednesday, and Friday, and I do all the work. She
don't even drive anymore. So she went today, and I don't know
how she's going to get back home. I think her daughter is
going to take her. But her daughter works too, so I'm it for
her. So I'm only...
THE COURT: All right. So you take your wife to and
from the hospital every day, but your daughter is taking her
today?
PROSPECTIVE JUROR: To the dialysis clinic.
THE COURT: Right.
PROSPECTIVE JUROR: Yeah.
THE COURT: All right, sir. Thank you, Mr. Alford.
PROSPECTIVE JUROR: Your Honor, I don't have no
concern. I just need to --
THE COURT: This is Mr. Johnson?
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PROSPECTIVE JUROR: Yes, ma'am.
THE COURT: Yes, sir.
PROSPECTIVE JUROR: I need to take a break to the
bathroom.
THE COURT: Yes. Of course. All right. So you just
need to take a break.
All right. Ladies and Gentlemen, when we take a
break, we all take a break. So here are the rules: We cannot
get started unless all of you are here. So we're going to take
a recess. There are bathrooms at the opposite end. Please
remember who you were lined up in front of and behind because
we're going to line you up in precisely the same manner. That
assists the Court and assists the attorneys because we have you
lined up for a reason, because it corresponds with your
questionnaires and with our charts.
So we're going to take a 10-minute recess. As you can
see, it's ten to twelve. Let's take a 10-minute recess and
we'll see you back here in 10 minutes, so everyone can have a
comfort break.
COURT SECURITY OFFICER: All rise for the jury.
(Panel not present, 11:51 a.m.)
THE COURT: We're on a 10-minute recess. And you can
certainly use the restrooms in the jury room.
(Recess from 11:52 a.m. to 12:01 p.m.)
THE COURT: All right. Welcome back.
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Miami, Florida 33128
Back on the record.
Let me acknowledge the presence of the Defendant.
We're going to bring in Juror Numbers 7 and 9
individually. So Jackie, if we can bring in Juror Number 7,
Ms. Lane.
MS. JIMENEZ: And, Your Honor, we do have a
replacement now for our Breezeline witness. So when you have
all of the jurors --
THE COURT: Certainly.
(Panel Member Number 7 enters the courtroom.)
THE COURT: All right. This is -- go ahead and have a
seat, everyone.
This is Juror Number 7, Ms. Lane.
Ms. Lane, thank you. You had shared with the Court
that you were going to be having surgery on December 8th. Do
you believe that you -- we are not in session on December 8th.
Do you believe that you would be recuperated and ready to serve
with the trial continuing on Monday, December 11th?
PROSPECTIVE JUROR: Yes.
THE COURT: All right. And I thank you for that.
Thank you, Ms. Lane.
(Panel Member Number 7 exits the courtroom.)
THE COURT: Now if we can bring in Mr. Elbaz, Juror
Number 9, please.
(Panel Member Number 9 enters the courtroom.)
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THE COURT: All right. Mr. Elbaz, you wanted to share
with the Court the medication you're taking and its effect on
you.
PROSPECTIVE JUROR: Sure. Thank you, Your Honor.
Well, I have a list over here.
THE COURT: You don't have to provide the list,
Mr. Elbaz. But let me ask you with regard to those
medications, do you believe that taking those medications would
have an effect on your ability to focus on the evidence and
testimony presented?
PROSPECTIVE JUROR: Well, firstly, am I coming in
clear?
THE COURT: Yes.
PROSPECTIVE JUROR: Okay. Thank you.
I have severe tinnitus on one side of my head, so the
ringing is tremendous, very hard for me to function. I also
take Klonopin for my anxiety. I have a hiatal hernia. So I
take -- I have it written -- I have like --
THE COURT: All right, sir. And you don't need to
give me a list of the prescriptions. But based on the medical
conditions and the medication you're taking, do you believe
that that would affect your ability to serve as a juror in this
case?
PROSPECTIVE JUROR: The most difficult thing for me is
I start to get like anxiety. I'm always afraid of saying --
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like, I torment myself. I'm tormented. I function well, but
when I feel like I'm in a high-pressure situation or if I
feel -- like I wasn't maybe forthcoming when you asked about
drowsiness. I'm not necessarily drowsy. I'm used to what I
take, but it's just that my mind starts running. So that
creates the fear in my head.
THE COURT: All right. And would that be present
throughout the course of this trial?
PROSPECTIVE JUROR: It's been present -- when I --
when I go into things that are out of my familiar zones -- like
wherever I stay, I manage to maintain everything I do in a
small proximity. So it makes it much easier for me to function
within the world that I created for myself.
THE COURT: Of course. Thank you, Mr. Elbaz.
And if you'll join your fellow jurors and we'll bring
everyone back together. Thank you, sir.
(Panel Member Number 9 exits the courtroom.)
COURT SECURITY OFFICER: All rise for the jury.
(Before the panel, 12:05 p.m.)
THE COURT: All right. Welcome back, Ladies and
Gentlemen.
Please be seated.
Thank you for your patience.
The Government does have the name of the individual
from -- I believe it's Breezeline. So if you can state that
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Miami, Florida 33128
individual's name, please.
MS. JIMENEZ: Yes. Ladies and Gentlemen, our
replacement witness is Mr. Patrick McCaw, M-C-C-A-W. He works
for Breezeline, which is an Internet service provider out of
the Northeast.
Thank you.
THE COURT: Thank you.
Ladies and Gentlemen, does anyone know that
individual? If so, please raise your hand.
Seeing no hands raised.
All right. I do have some specific questions for some
of you, and thank you once again for completing your juror
questionnaires.
And Jackie, if we can give the microphone to Juror
Number 3, and that is Mr. -- Ms. Haynes. My apologies.
Ms. Haynes, you stated in Question 14 your law
enforcement background "makes me biased towards the police."
Now, as you heard from the Government's list of witnesses,
there will be some individuals testifying on behalf of the
Federal Bureau of Investigation, one from the Department of
Revenue. There will be some government officials. So let me
ask you: Based on that, obviously, you as the jury -- if you
are selected -- will need to gauge the credibility or lack of
credibility of the witnesses that come before you. But my
question to you is: Even before that witness opens his or her
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mouth, would you have a bias towards law enforcement and may be
giving more weight to an officer's testimony than it may
otherwise deserve because of your law enforcement background?
PROSPECTIVE JUROR: Yes, Your Honor. I definitely
would lean towards believing what the officers have to say.
THE COURT: Okay. Is that before the witness even
testifies?
PROSPECTIVE JUROR: Yes. That's right.
THE COURT: All right. So you will tend to give more
weight to an officer's testimony than it may otherwise
deserve --
PROSPECTIVE JUROR: Absolutely.
THE COURT: -- because of your law enforcement
background?
PROSPECTIVE JUROR: Absolutely, Your Honor.
THE COURT: All right. And I thank you for your
candor, Ms. Thompson [sic].
(Pause in proceedings.)
THE COURT: Juror Number 13, Ms. Rosell -- I'm
sorry -- Teobaldo Rosell. Mr. Rosell. My apologies.
Mr. Rosell, you stated that -- on Question 14 that you
would have difficulty judging another person on religious
grounds. Is that correct, sir? And I want to make sure that I
understand --
PROSPECTIVE JUROR: Yeah. I did that. I wrote that.
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Miami, Florida 33128
And then I also wrote on 16 that even with my views I'll follow
the instructions on the law.
THE COURT: All right. But I guess my question is --
obviously, I would hope that everyone will follow the Court's
instructions on the law, but do you have some religious reason
why you could not serve as a member of this jury?
PROSPECTIVE JUROR: No. I didn't know what the case
was about. So I just answered the question. That's all I was
doing.
THE COURT: All right, sir. Now I've given you what
the allegations are.
PROSPECTIVE JUROR: No.
THE COURT: Do you believe that your religion --
PROSPECTIVE JUROR: No.
THE COURT: -- would affect your ability to serve as a
fair and impartial juror?
PROSPECTIVE JUROR: No.
THE COURT: All right. Thank you, sir.
Juror Number 14, Tatyana Josephs. Ms. Josephs, you
have beautiful handwriting. It is a little small, so I just
want to make sure that I have read this correctly. And that is
you stated on Question 15: "Do you feel you could not judge
another person for a criminal act," and you said: "Yes."
I just want to make sure -- the question is somewhat
inartfully worded. But do you believe there is something
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within your background, whether religious, moral, personal,
that would affect your ability to serve as a fair and impartial
juror in this case?
PROSPECTIVE JUROR: No, there isn't. I think it was
just the way the question was --
THE COURT: Yeah. And the question is not worded --
because it can be interpreted in two different ways, the yes or
the no. So I just wanted to make sure that -- do you believe
that you could serve as a fair and impartial juror,
Ms. Josephs?
PROSPECTIVE JUROR: Yes.
THE COURT: All right. And beautiful handwriting.
Thank you.
Juror Number 20 -- and my apologies. Juror Number 19.
Patricia Kennedy.
All right. Ms. Kennedy, I know that -- and I'm sorry
to hear of the loss of certainly someone in your family. I
just want to make sure, given your answer to Question 14 and
15, do you believe that you could serve as a fair and impartial
juror in this case?
PROSPECTIVE JUROR: I do not feel currently I am in a
state of mind that allows me to do it.
THE COURT: Okay. You believe that because of the
loss of your family member that you are not in a position to
serve at this time?
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PROSPECTIVE JUROR: Yes.
THE COURT: All right. Thank you, Ms. Kennedy.
And I'm sorry to hear of your loss.
Juror Number 20, Sydni Coro. Ms. Coro, you also state
in Question 14 you believe the justice system can be unfair.
You believe a family member was treated unfairly. And I just
want to make sure -- could you set aside that experience with
your family member and render a decision based solely on the
testimony and evidence presented in this courtroom?
PROSPECTIVE JUROR: I think it would be difficult for
me.
THE COURT: All right. And can you share with me why
you believe that would be difficult? Is that because of the
incident with regard to your family member?
PROSPECTIVE JUROR: Yes.
THE COURT: Okay. All right. Thank you, Ms. Coro.
Okay. We are now on the other side.
Juror Number 28, Mr. Bauta.
Yes, Mr. Bauta, you did tell me about your difficulty
with the English language. So thank you, sir.
Juror Number 36, Javier Cuba.
Mr. Cuba, you stated you don't think the law is
applied fairly due to biases in the system. And I want to make
sure that that's not a bias that you hold that would affect
your ability to be fair and impartial.
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PROSPECTIVE JUROR: No. I try to always judge
everybody equally, despite my own personal biases.
THE COURT: Okay. But do you have biases that you
believe would have an effect on your ability to serve as a fair
and impartial juror in this case?
PROSPECTIVE JUROR: No.
THE COURT: Okay. So when you stated: "I don't think
the law is applied fairly due to biases in the system," is that
an observation that you've made?
PROSPECTIVE JUROR: Yes. An opinion, an observation.
THE COURT: Okay. But would that have an effect on
your ability to serve as a fair and impartial juror?
PROSPECTIVE JUROR: I don't think so.
THE COURT: Okay. When you say: "I don't think so,"
we as human beings --
PROSPECTIVE JUROR: No.
THE COURT: Do you think it will, sir?
PROSPECTIVE JUROR: No.
THE COURT: Okay. Thank you, sir.
And Juror Number 37. That is Juliana Gomez.
Ms. Gomez, you stated that there is something on
Question 14 in your background or personal feelings that would
affect your ability to be fair and impartial. Can you share
that with me?
PROSPECTIVE JUROR: Yes. Based on the questionnaire,
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I assumed this case was about PPP loans. With my work
background in hospitality, I thought that it was -- I saw
some -- I witnessed some things that were unfair. So I think I
would be biased in my, you know, time period during COVID where
I saw certain businesses -- I think that they weren't treated
fairly, et cetera.
THE COURT: Could you set aside that bias?
PROSPECTIVE JUROR: I think I would have a hard time,
seeing that I saw personal friends and family struggle during
the pandemic.
THE COURT: All right. So do you believe that your
personal observations would have an effect on your ability to
serve as a fair and impartial juror?
PROSPECTIVE JUROR: Yes, Your Honor.
THE COURT: All right. Thank you, Ms. Gomez. I
appreciate your candor.
Juror Number 42. And that is Perla Soto?
PROSPECTIVE JUROR: Yes.
THE COURT: Ms. Soto, you stated on your questionnaire
"not sure" if you feel that you could judge another person for
a criminal act, whether on religious, moral, or personal
grounds.
PROSPECTIVE JUROR: Well, ethically, we're not
supposed to judge. God's the only one. So you know, I guess,
you know, that's why I put maybe. You know, I would hate to
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think somebody's going to have an adverse problem in their life
because of my judgment of them.
THE COURT: And you understand that your role,
Ms. Soto, will be the -- you'll be the judges of the facts.
You're going to determine what the facts are in this case. And
then you'll apply those facts to the law that I'm going to
instruct you on to determine whether the Government has met its
burden of proving all the elements of the offenses beyond and
to the exclusion of every reasonable doubt. So knowing that
that's your role as a juror, do you believe that your feelings
that only God is to judge would have an effect on your ability
to serve as a fair and impartial juror?
PROSPECTIVE JUROR: My concern would be more on my
understanding of what the information would be, because I
personally found it complex, the whole PPP thing and such. So
hopefully I would understand the information correctly.
THE COURT: Okay. So your concern is that there may
be a lot of information that you would have to absorb?
PROSPECTIVE JUROR: Yes.
THE COURT: Okay.
PROSPECTIVE JUROR: Correct.
THE COURT: All right. But is there anything that the
Court needs to be aware of, any religious, moral, philosophical
reason why you could not serve as a fair and impartial juror?
PROSPECTIVE JUROR: No. That's just my answer to why
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Miami, Florida 33128
I put that.
THE COURT: Okay. Thank you, Ms. Soto. Appreciate
your time.
Juror Number 45 -- and actually, Mr. Alford, I
apologize. I did already speak with you and you already shared
with the Court.
So Juror Number 47, Iliana Caballero.
PROSPECTIVE JUROR: Yes, Your Honor.
THE COURT: Yes. Ms. Caballero, you stated on
Question 15: "I can't judge another person for moral reasons."
PROSPECTIVE JUROR: Yes. I've been in this position
before and the experience was not pleasant. I don't think I
can do it again.
THE COURT: Okay.
PROSPECTIVE JUROR: Sorry.
THE COURT: And is it just because you feel a little
anxious or is there another reason?
PROSPECTIVE JUROR: Yes. I don't feel like I can do
it.
THE COURT: And you did serve on a jury in state
court, correct?
PROSPECTIVE JUROR: (No verbal response.)
THE COURT: And were you able to arrive at a decision?
PROSPECTIVE JUROR: Yes.
THE COURT: All right. So you understand the
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400 North Miami Avenue, 10-2
Miami, Florida 33128
obligation of a juror and do you believe that you could serve
in this courtroom?
PROSPECTIVE JUROR: I don't believe so.
THE COURT: And can you share -- when you -- is it
just because it would be difficult --
PROSPECTIVE JUROR: Would be difficult for me, yes.
THE COURT: Is there any other reason other than it
might be difficult?
PROSPECTIVE JUROR: No.
THE COURT: Okay. Is there anything the Court needs
to be aware of, any religious, philosophical, moral reason,
anything at all, Ms. Caballero?
PROSPECTIVE JUROR: No. That's it.
THE COURT: Okay. Thank you, Ms. Caballero.
All right. Ladies and Gentlemen, is there anyone that
has not told me, either in your questionnaire or in your
responses to my questions, as to why you believe you could not
serve as a fair and impartial juror? If so, please raise your
hand. Anything at all?
And that -- that has not already been provided to the
Court. And that is -- I want to make sure that I know who that
is. Is that Ms. Garcia?
PROSPECTIVE JUROR: Yes.
THE COURT: Yes.
PROSPECTIVE JUROR: I have concerns with the
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scheduling because I have a full-time job and a part-time job.
So I work more than 60 hours a week. And I also just got my
full-time job last Monday, and I have a 90-day grace period,
and I'm scared.
THE COURT: Have you told your employer that you
received a summons?
PROSPECTIVE JUROR: Yes. He knows I'm here today.
THE COURT: Okay. And you are concerned that you will
not have a job?
PROSPECTIVE JUROR: Yeah. I'm afraid of finance --
like my finances.
THE COURT: Is this with the construction company?
PROSPECTIVE JUROR: Correct.
THE COURT: All right. And how many employees are
part of that construction company?
PROSPECTIVE JUROR: Five.
THE COURT: Okay.
PROSPECTIVE JUROR: And I would be taking over the
office stuff, and the lady will no longer be there. So I'm
concerned about the transition and learning all the stuff that
I don't know yet.
THE COURT: Okay. Of course. Yes. That's a valid
concern. But other than -- I mean, obviously you've told your
employer, and your employer -- he or she has understood that
you were called to jury duty, correct?
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PROSPECTIVE JUROR: Yes. I just don't know -- like,
obviously, they don't know how long it's going to take.
THE COURT: Right. Okay. So perhaps during the break
you can advise them what the anticipated schedule is.
PROSPECTIVE JUROR: Okay.
THE COURT: Okay. Thank you, Ms. Garcia.
All right. Ladies and Gentlemen, I did advise the
attorneys that they would have an opportunity to question you
individually. We'll first start on behalf of the Government.
(Pause in proceedings.)
MS. MARTINEZ: I should have practiced that. Sorry.
It's still -- no. It's afternoon.
Good afternoon.
Thank you.
How many of you work for a company that gives you a
W-2 Form?
PROSPECTIVE JUROR: I didn't hear the question.
MS. MARTINEZ: A W-2 Form. That gives you a W-2 Form.
I'm going to say roughly half of you.
Give me -- Ms. Cabrera, I believe you're a supervisor.
PROSPECTIVE JUROR: Yes.
MS. MARTINEZ: You receive a W-2, correct? So -- and
so you consider yourself an employee, correct?
PROSPECTIVE JUROR: Yes.
MS. MARTINEZ: And your employer withholds income tax,
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meaning keeps it and does not pay it to you, correct?
PROSPECTIVE JUROR: Correct.
MS. MARTINEZ: And your employer also withholds
Medicare taxes and Social Security taxes, correct?
PROSPECTIVE JUROR: Correct.
MS. MARTINEZ: And your employer also contributes to
the IRS for their portion of Medicare and Social Security
taxes.
PROSPECTIVE JUROR: Correct.
MS. MARTINEZ: You work for a cruise company, correct?
PROSPECTIVE JUROR: Yes, I do.
MS. MARTINEZ: Is there some employees that -- let me
put it differently.
Are there payments that the cruise company makes that
are, for example, to an electrician who comes to fix something
at the office or something that is an outside company coming to
do something at the office?
PROSPECTIVE JUROR: Yes, they do.
MS. MARTINEZ: And that is like a vendor?
PROSPECTIVE JUROR: Correct.
MS. MARTINEZ: That person is not an employee.
PROSPECTIVE JUROR: No.
MS. MARTINEZ: Thank you.
(Pause in proceedings.)
MS. MARTINEZ: Mr. Gutierrez?
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PROSPECTIVE JUROR: Yes.
MS. MARTINEZ: Yes. To ask you -- you did apply for
one of the Economic Injury Disaster loans?
PROSPECTIVE JUROR: Yes.
MS. MARTINEZ: And during that -- you did indicate
that you needed some assistance, but you were able to get the
assistance and get it approved, correct?
PROSPECTIVE JUROR: Yes.
MS. MARTINEZ: Is there anything about that experience
that would impact how you look at this case?
PROSPECTIVE JUROR: No. No.
MS. MARTINEZ: Thank you.
PROSPECTIVE JUROR: You're welcome.
MS. MARTINEZ: Your Honor, the jurors that indicated
that they had trouble with English are -- should I not inquire
further -- not about the English but other issues?
THE COURT: I don't believe it's necessary, but you
decide how to divide your time.
(Pause in proceedings.)
MS. MARTINEZ: Mr. -- let me see if I can do it --
Thanoosorn. I understand that you're a second year in college.
What are you studying?
PROSPECTIVE JUROR: I'm a music student.
MS. MARTINEZ: Excuse me?
PROSPECTIVE JUROR: I'm a music student.
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MS. MARTINEZ: Music?
PROSPECTIVE JUROR: Yeah.
MS. MARTINEZ: Thank you.
(Pause in proceedings.)
MS. MARTINEZ: Your Honor, may I ask for the jurors
that have flights and are going to be out of town, do we need
to inquire further?
THE COURT: You may.
MS. MARTINEZ: Excuse me?
THE COURT: You may inquire if you believe it's
necessary.
MS. MARTINEZ: Ms. Laila Garcia.
Hi. You indicated that you could not judge someone
else, and that was in part -- can you elaborate on that?
PROSPECTIVE JUROR: I said that I judge people by
their actions, and then I try to understand why they would do
the things that they did.
MS. MARTINEZ: Is there anything about -- is there
anything about your individual beliefs that would make it
difficult for you to serve on this case?
PROSPECTIVE JUROR: No.
MS. MARTINEZ: Okay.
Mr. Urbina. Hi.
PROSPECTIVE JUROR: Hello.
MS. MARTINEZ: I caught that your wife is a federal
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public defender.
PROSPECTIVE JUROR: Yes.
MS. MARTINEZ: Do you-all talk sometimes about her
work?
PROSPECTIVE JUROR: No.
MS. MARTINEZ: Is there anything about that experience
that you think would affect you here today?
PROSPECTIVE JUROR: No.
MS. MARTINEZ: Can you tell me a little bit more about
your job? I'm not sure I understood it. It's --
PROSPECTIVE JUROR: So I'm a production manager for
multiple venues in Miami Beach and Brickell, and I'm
responsible for the production on all of them.
MS. MARTINEZ: Thank you.
PROSPECTIVE JUROR: Yeah.
MS. MARTINEZ: Can I ask you: Are you -- do you get a
W-2?
PROSPECTIVE JUROR: Yeah.
MS. MARTINEZ: Okay. Thank you.
Ms. Saywack, I just wanted to ask you about how you
feel medically. Do you feel like you could pay attention
throughout an eight-hour day?
PROSPECTIVE JUROR: I think I should. I would just be
very sleepy at some point. Because I'm kind of sleepy right
now because of the medication. And I haven't eaten, so that
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plays a part.
MS. MARTINEZ: Excuse me?
PROSPECTIVE JUROR: I already had some medication
today, but I have not eaten yet, so that's --
MS. MARTINEZ: Sure.
PROSPECTIVE JUROR: Yeah.
MS. MARTINEZ: So this case is going to have a bit of
paper, in the sense of -- we'll show it on the screens, but
it's going to have a number of loan documents and papers. Do
you think you could pay attention to what is going on on the
papers? For example, comparing papers where there was one
thing stated and then another paper where something else is
stated and contrasting the two, see that one is true, and one
is false?
PROSPECTIVE JUROR: Honestly, I can't tell that right
now because I'm not in that situation right now. And based on
the amount of medication I take, obviously it's going to be
more harsh for me to pay attention to something like that.
MS. MARTINEZ: Thank you.
PROSPECTIVE JUROR: Okay.
MS. MARTINEZ: So I don't know if I can pronounce this
right, but Juror Number 41. So I have to confess, I was trying
to read all the questionnaires and I just didn't get to you.
Could you tell me what you do?
PROSPECTIVE JUROR: I'm a supply chain coordinator.
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MS. MARTINEZ: Excuse me?
PROSPECTIVE JUROR: A supply chain coordinator.
MS. JIMENEZ: Supply chain coordinator. Are you
employed by a company?
PROSPECTIVE JUROR: I'm sorry?
MS. MARTINEZ: Are you employed by a company to do
that?
PROSPECTIVE JUROR: That's correct.
MS. MARTINEZ: And you also get a W-2, right?
PROSPECTIVE JUROR: Yes. Correct.
MS. MARTINEZ: Did you indicate you would have any
problems being fair and impartial in this case?
PROSPECTIVE JUROR: No, I did not.
MS. MARTINEZ: Thank you.
Can I ask you -- I notice a little bit of an accent.
Where are you from?
PROSPECTIVE JUROR: I grew up in Belgium. I speak
Dutch as my native language.
MS. MARTINEZ: On the Flemish side?
PROSPECTIVE JUROR: Correct. Yes.
MS. MARTINEZ: Thank you.
And I'm going to go to Mr. Johnson.
Mr. Johnson, I didn't get to your questionnaire. Did
you indicate that you had an issue in the case?
PROSPECTIVE JUROR: No.
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MS. MARTINEZ: Okay. What do you do for a living?
PROSPECTIVE JUROR: I'm a security chief, Miami-Dade
Water and Sewer.
MS. MARTINEZ: Wow. Okay. So you get a W-2?
PROSPECTIVE JUROR: A big one.
MS. MARTINEZ: Yes. Did you indicate you had any
issues in the case?
PROSPECTIVE JUROR: You asked me that. I said no.
MS. MARTINEZ: Okay. All right. Thank you.
Mr. Dunlop, I apologize. I didn't get to your
questionnaire. What do you do for a living?
PROSPECTIVE JUROR: Construction management.
MS. MARTINEZ: And is that your own job? You're the
manager?
PROSPECTIVE JUROR: No. I work for a company.
MS. MARTINEZ: And what does that mean, construction
management? What do you do?
PROSPECTIVE JUROR: Superintendent for a restaurant
build.
MS. MARTINEZ: And so do you have employees?
PROSPECTIVE JUROR: I do not have employees. I am
employed.
MS. MARTINEZ: Okay. So you get a W-2.
PROSPECTIVE JUROR: Yes.
MS. MARTINEZ: Yes, sir. Did you indicate that you
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had any issues?
PROSPECTIVE JUROR: No.
MS. MARTINEZ: Okay. Thank you.
(Pause in proceedings.)
MS. MARTINEZ: You know, Ms. Caballero --
PROSPECTIVE JUROR: Yes?
MS. MARTINEZ: Ms. Caballero, I wanted to ask you --
you indicated that you had prior jury service that was
difficult.
PROSPECTIVE JUROR: Yes.
MS. MARTINEZ: Can I ask, to the extent that you feel
comfortable telling, why was it so difficult?
PROSPECTIVE JUROR: Because the situation of the --
MS. MARTINEZ: Of that particular case?
PROSPECTIVE JUROR: Yeah.
MS. MARTINEZ: So -- and why was it difficult -- do
you think it would make it difficult in this case if it's a
different case?
PROSPECTIVE JUROR: I don't really know. But the
experience was not good for me, so I don't feel like --
MS. MARTINEZ: Was it the courtroom, the interaction
with the jury?
PROSPECTIVE JUROR: The case in general.
MS. MARTINEZ: Is there anything that you could do to
help me to see if you could be a fair and impartial juror in
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this case, meaning if you could serve -- in this case, a juror
has the responsibility to pay attention to what is taking
place, to pay attention to the evidence, to hear both sides,
and to fairly apply the law to what evidence they hear, and
just make a decision about the facts. But you do have to pay
attention and you do have to make a decision together with your
other jurors.
PROSPECTIVE JUROR: Of course.
MS. MARTINEZ: Do you think you could do that?
PROSPECTIVE JUROR: I -- I can try, yeah.
MS. MARTINEZ: Thank you.
PROSPECTIVE JUROR: You're welcome.
THE COURT: Okay. Just a few more minutes.
MS. MARTINEZ: Thank you, Your Honor.
(Pause in proceedings.)
MS. MARTINEZ: Mr. Cuba -- oh, sorry. I got you.
You indicated that you are an accountant for a real
estate developer.
PROSPECTIVE JUROR: Yes.
MS. MARTINEZ: What does that mean? Are you in-house?
PROSPECTIVE JUROR: Yeah.
MS. MARTINEZ: Not like you have your own firm?
PROSPECTIVE JUROR: No. No. I'm a W-2. I'm an
employee.
MS. MARTINEZ: And you did say that you had not a
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great experience with the IRS. We will have an IRS witness
here, mostly explaining the difference between W-2 and not W-2.
But is there anything about that experience at the IRS that
makes you think that maybe you wouldn't be able to be fair to
the United States?
PROSPECTIVE JUROR: No. No. No. I think I can be
fair to anybody. Yeah.
MS. MARTINEZ: Is there anything about your experience
working for a developer that would make it difficult for you to
find the Defendant guilty if the evidence is proven beyond a
reasonable doubt?
PROSPECTIVE JUROR: No, because I judge everyone by
the evidence. So...
MS. MARTINEZ: Thank you.
THE COURT: Okay. Ms. Martinez, have we concluded?
MS. MARTINEZ: Yes, Your Honor.
Very well, Your Honor. Thank you.
Thank you-all for your time.
THE COURT: All right. On behalf of the Defendant?
MS. WEINTRAUB: Thank you, Your Honor.
Again, my name is Jayne Weintraub, and I'm one of the
lawyers for Eric Sheppard.
So let me just start out --
(Court reporter interruption.)
MS. WEINTRAUB: Sorry. I'll start again.
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Hi. My name is Jayne Weintraub, and I'm one of the
lawyers for Eric.
Now, can I just ask by a show of hands, just sitting
here knowing that he's charged with a crime or several crimes,
does anybody think: "Well, he must have done something because
he's sitting here and the Government brought him here"? And
it's okay to say you do think so. We just want to talk about
it. Is there anybody, by a show of hands, that would raise
their hand and say: "Yeah. He must have done something or he
wouldn't be here"?
Tell me -- and so your name is?
PROSPECTIVE JUROR: Gabriel Sanchez.
MS. WEINTRAUB: And you feel that just because he's
here, because they charged him with something, that he could be
guilty or should be guilty?
PROSPECTIVE JUROR: No. I think he's here because he
did something, but that doesn't mean that he's guilty.
Otherwise, he wouldn't be here.
MS. WEINTRAUB: Well, do you think that it's possible
that the Government may be charging somebody and they're wrong,
and they make a mistake or they got wrong information? Do you
think that's possible or not really?
PROSPECTIVE JUROR: Not -- possible, but he got to be
here for a reason. That's what I'm saying.
MS. WEINTRAUB: Okay. Does anybody else feel
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differently -- thank you.
PROSPECTIVE JUROR: You're welcome.
MS. WEINTRAUB: Does anybody else feel differently or
want to say anything about that? Does anybody feel the same?
Tell me. You have a -- what is your juror number?
PROSPECTIVE JUROR: Juror Number 9.
MS. WEINTRAUB: And could you tell me your name again.
PROSPECTIVE JUROR: Rafael, last name Cordero.
MS. WEINTRAUB: Rafael -- and do you feel similar or
do you think that the Government can get it wrong?
PROSPECTIVE JUROR: I'm Number 8 then.
MS. MARTINEZ: You're definitely Number 8.
PROSPECTIVE JUROR: So -- well, I feel that -- like
basically what he was saying, that if he's here it's because
obviously something didn't go as planned or something.
MS. WEINTRAUB: Do you understand that the reason that
Mr. Sheppard is brought here and came here is because there was
a charge, there's an accusation? That's all it is. There's no
evidence. There's an accusation that brings him here.
PROSPECTIVE JUROR: Yes. Of course I understand that.
MS. WEINTRAUB: And do you understand that sometimes
the Government doesn't get it right?
PROSPECTIVE JUROR: It might happen. That's why we're
here, to figure out --
MS. WEINTRAUB: That's exactly why we're here.
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Does anybody feel similar? Or Number 16, did you want
to say something? I'm sorry. I forgot your name. Could you
stand for me.
PROSPECTIVE JUROR: Laila. Yes.
Okay. Can you repeat your question, just so I can
answer properly?
MS. WEINTRAUB: Sure. Do you think because he was
brought here and he's accused of something -- do you believe
that he must have done something to get here, or do you think
that the Government could get it wrong and, you know, he was
charged and he's brought here, but it's just an accusation, as
Her Honor told you? How do you feel about it?
PROSPECTIVE JUROR: Well, I think the Government can
make mistakes. He's here on more than one accusation. And
even if it wasn't his intention, it was still done under him,
so he could still be at fault.
MS. WEINTRAUB: Okay. I notice that you -- on your
application you said something about social media.
PROSPECTIVE JUROR: Oh, yeah.
MS. WEINTRAUB: And I'm sure it's only because I'm so
old and you're not. So let me ask you this: Do you get your
news from social media?
PROSPECTIVE JUROR: Correct.
MS. WEINTRAUB: And you -- is there anything that's
going on -- and this will go for anybody, actually. But is
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there anything that's going on in the world right now that's
particularly upsetting that would distract you?
PROSPECTIVE JUROR: The thing happening in Gaza.
MS. WEINTRAUB: Okay. Thank you for your candor.
And does anybody else feel the same way that Juror
Number 16 just expressed, or is distracted, or has very strong
feelings about what's going on in Gaza that would affect you or
distract you here? Let me ask it this way. Is there anything
about anybody in the courtroom that would distract you or lead
you to any conclusions about what's going on in the world or
can we keep the world out of this and just the evidence here?
I want to ask a couple of follow-up questions, if I
might -- oh. I'm sorry. I'm sorry.
PROSPECTIVE JUROR: I would definitely say that the
day-to-day activities of what's going on in the world does
affect the way I exist and function. And it's basically the
conflicts of the world. It's just -- it's very disturbing.
MS. WEINTRAUB: I agree with you. The conflicts are
very disturbing. But I guess the real question is -- I think
everybody's disturbed by what's going on. It's hard not to be.
But would you be able -- if you were selected as a juror in
this case, would you be able not to let that noise get in the
way or get in a jury room? In other words, would you be able
keep that away and know that it has nothing to do with Eric
Sheppard or what's happening here?
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PROSPECTIVE JUROR: It's already affected what goes on
in my head at this time because it has to do with the survival
of my existence, I would say.
MS. WEINTRAUB: It has to do with the survival?
PROSPECTIVE JUROR: Of my existence.
MS. WEINTRAUB: Thank you. I appreciate that.
Does anybody else want to say anything about what we
were just talking about before I go on to something else?
Juror Number 5, Ms. Rivera [sic].
Yes? I'm sorry. What is your name?
PROSPECTIVE JUROR: Maria. Maria Pinero.
MS. WEINTRAUB: Pinero. I'm sorry. I can't read my
own handwriting.
You wrote on your questionnaire that you were not
feeling well. Have we addressed that or is there something
that -- did you want to speak privately with the Court?
PROSPECTIVE JUROR: I don't understand.
MS. WEINTRAUB: You don't understand? Are you having
a problem with English?
PROSPECTIVE JUROR: Yes.
MS. WEINTRAUB: Have there been things that have been
said here that you did not understand or do you think you are
understanding?
PROSPECTIVE JUROR: I understand very, very little.
MS. WEINTRAUB: You said that you were a lawyer in
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your country. What country was that?
PROSPECTIVE JUROR: Venezuela.
MS. WEINTRAUB: And how long have you been here?
PROSPECTIVE JUROR: What?
MS. WEINTRAUB: How long have you lived in the United
States?
PROSPECTIVE JUROR: Citizenship, one year.
MS. WEINTRAUB: Okay. Is it fair to say that you are
not comfortable speaking in English fluently?
PROSPECTIVE JUROR: (No verbal response.)
MS. WEINTRAUB: Thank you. I appreciate your candor.
Number 12. Juror Number 12, Ms. Walden [sic].
PROSPECTIVE JUROR: Waldron.
MS. WEINTRAUB: Waldron. You are a corrections
officer?
PROSPECTIVE JUROR: Yes.
MS. WEINTRAUB: Is there anything about being a
corrections officer that would make you feel that you could not
be perfectly fair here? If there is, please tell us.
PROSPECTIVE JUROR: No.
MS. WEINTRAUB: Do you want to be on the jury or would
you rather not be?
PROSPECTIVE JUROR: I'd rather not be.
MS. WEINTRAUB: Your brother is also a Port St.
Lucie -- your brother is apparently a Port St. Lucie police
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officer?
PROSPECTIVE JUROR: Yes.
MS. WEINTRAUB: Would that influence you at all if you
hear from law enforcement, FBI agents, or other police
officers? Would you -- would you believe them more than
someone, for example, that isn't in law enforcement, like
Ms. Lane was saying before? It's okay, because we really just
want honest opinions.
PROSPECTIVE JUROR: It depends, I guess.
MS. WEINTRAUB: Okay. So I hate to do this to you,
but saying "it depends" just makes me ask another question.
What would it depend on? I mean, if you're hearing a law
enforcement officer testify, my question, I guess -- and with
your background and your family, I guess what I'm really saying
is: Do you think that you might be leaning towards that
person's testimony as being credible more than somebody else's
because they're law enforcement and you think they tell the
truth?
PROSPECTIVE JUROR: Yes, I believe so.
MS. WEINTRAUB: Thank you. And I appreciate your
candor.
A defendant in a criminal case -- in every criminal
case in the United States, has the right not to testify. I'm
sure everybody has seen that on TV or heard about those rights.
"You have the right to remain silent." Everyone's heard that
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in some form or another somewhere. Does anybody -- and it's
okay if you do -- does anybody think it's strange if Eric
doesn't get up here and tell his story and doesn't testify?
Would that bother you? How would you feel about it, only
because you're nodding your head?
PROSPECTIVE JUROR: I think if you don't have anything
to hide you should definitely speak up.
MS. WEINTRAUB: I'm sorry. Could you tell me your
Juror Number again. Eight, was it?
PROSPECTIVE JUROR: Eight.
MS. WEINTRAUB: Yes?
PROSPECTIVE JUROR: Yes. Eight.
MS. WEINTRAUB: And do you understand that there are
other reasons why somebody might not testify if they didn't do
it?
PROSPECTIVE JUROR: Yeah. Of course. It's their
choice. But I believe if you have nothing to hide you should
definitely give your opinion, even more when it's something
that it matters to you greatly.
MS. WEINTRAUB: Does anybody on this side feel
differently or does anybody have any specific thoughts about
it, about whether or not somebody testifies -- if they thought
that they didn't do it, and -- would you still expect them to
testify?
PROSPECTIVE JUROR: Yes.
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MS. WEINTRAUB: And thank you for your candor. And
tell me why.
PROSPECTIVE JUROR: I think if you are innocent you
will tell the truth and the truth will set you free.
MS. WEINTRAUB: I'm sorry. Tell me the juror number.
PROSPECTIVE JUROR: I'm Number 6.
MS. WEINTRAUB: Okay. Francis?
PROSPECTIVE JUROR: Yes.
MS. WEINTRAUB: Okay. It's hard to remember so many.
PROSPECTIVE JUROR: But I'll agree with what she's
saying. The truth shall set you free. You're right. But I
also feel like sometimes when you're quiet or you're silent
about something it's because you're trying to protect yourself,
even if you know the truth. Because, you know, you might word
something wrong, or somebody might take your words wrong, and
that might not be the fact of the matter. In any instance, not
just in court, just as far as being quiet and not trying to
voice your opinion and trying to defend yourself. Sometimes
being quiet, it helps. It's a benefit. That's what I'm trying
to say.
MS. WEINTRAUB: Thank you.
THE COURT: Just a few more minutes, Ms. Weintraub.
MS. WEINTRAUB: I'm sorry?
THE COURT: Just a few more minutes.
MS. WEINTRAUB: Yes, Your Honor.
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(Pause in proceedings.)
MS. WEINTRAUB: If I might have a moment, Your Honor.
(Pause in proceedings.)
MS. WEINTRAUB: Juror Number 23 -- oh, is that
Mr. Gandolfo?
MR. ETRA: Yes.
MS. WEINTRAUB: Okay.
Okay. So you said -- on your questionnaire it said
that you heard about the case, but now I got it. Thank you.
And when the Judge says: "Ms. Weintraub, just a few
more minutes," what she really means, I think, is that my time
is up. So if you'll just give me one second, Judge.
Based on that, I will sit down with the Court's --
THE COURT: All right. Thank you, Ms. Weintraub.
Ladies and Gentlemen, after listening to the
attorneys, do any of you have any feeling toward any of the
parties or attorneys that might affect your ability to serve as
a fair and impartial juror, or has anyone formed an opinion on
the merits of this case? If so, please raise your hand.
Seeing no hands raised.
You have each been extremely patient. I'm going to
ask for your patience for a little bit longer.
As you can see, it is five minutes to one. We are now
going to discuss the selection of the jury, but I do need you
to remain close at hand so that we can bring you back into the
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courtroom and advise you of the individuals that we have
selected.
So we are going to take a 20-minute break, and I will
see you back here at 1:15. I promise you you will have an
opportunity to have a lunch recess, but I ask for your
patience. I'll see you back here at 1:15.
COURT SECURITY OFFICER: All rise.
(Panel not present, 12:54 p.m.)
MS. WEINTRAUB: Judge, can I bring something to the
Court's attention?
THE COURT: Yes. If you can speak through the
microphone.
MS. WEINTRAUB: Yes, ma'am. Sorry.
Judge, I just want to bring it to the Court's
consideration that Juror Number 16 and Juror Number 36 have
been very actively tweeting and very pro-Palestinian tweets, et
cetera. And I don't know how to say this, because I'm only
doing this 32 years. I don't want to be in the same room as
that person, and I don't want to use a challenge of my client
for those outrageous views that they have put on their personal
social medias.
I don't know if the Court wants to question them. I
don't know if I should question them about it. I was trying to
get there politely and hoping she would be stupid enough to say
something, but she didn't. But I'm very concerned about those
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tweets, and I don't know what to say.
THE COURT: Well, I can tell you that if your
investigation has led you to uncover certain tweets that makes
you feel uncomfortable, there's one or two things you can do.
You can peremptorily move to strike that individual so they're
not part of the jury or you can make a personal decision with
regard to your involvement in the case. But I am not going to
inquire into someone's social media. You certainly have the
right and you have exercised that right to investigate into the
jurors themselves, but there's nothing further in terms of an
action that the Court can take, other than I will rule on the
striking for cause and the peremptory challenges.
So let me give you some time to confer and then we'll
begin to select our jury. So I'll see you back here in 10
minutes.
MS. JIMENEZ: Your Honor, I don't know if the Court
wants to go over potential jurors to be stricken for cause.
THE COURT: Well, I can look at the panel as a whole,
but I wanted to give you some time to confer so that we can
begin selection of the jury. As I stated at the calendar
call -- and I'm not certain if you had specific questions, but
we look at the panel as a whole, we'll address any challenges
for cause, and then we'll alternate with regard to peremptory
challenges.
MS. MARTINEZ: However, the -- even though we look at
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them all for cause, when we start the peremptory challenges,
it's going to be one by one, correct?
THE COURT: No. It's going to be looking at the first
12, and then we'll alternate with regard to those 12.
Okay. So let me give you a few moments. Recall that
I have the jury outside, and I have 48 people that would like
to go to lunch, and we do need to select our jury.
(Recess from 12:58 p.m. to 1:06 p.m.)
THE COURT: Both sides ready to proceed?
MS. WEINTRAUB: We're ready to proceed with the cause,
Your Honor.
THE COURT: All right. Let us begin to select our
jury.
Addressing first all of the cause challenges, looking
at the panel as a whole, we'll first start on behalf of the
Government. If there is no objection on the other side,
there's no need to proceed with argument.
Any challenges for cause, looking at the jury as a
whole?
MS. MARTINEZ: Yes, Your Honor. I'm going to start --
and tell me if I miss anybody. So Number 2 --
THE COURT: Any objection?
MS. WEINTRAUB: Two. Yeah. I'd like to know the
basis.
MS. MARTINEZ: Oh. It's because she's a mom with a
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one-year-old.
THE COURT: Based on the one-year-old, is there any
objection?
MS. WEINTRAUB: No.
THE COURT: The juror is stricken.
MS. MARTINEZ: Number 5.
THE COURT: Basis?
MS. JIMENEZ: English.
THE COURT: The language barrier.
Any objection?
MS. WEINTRAUB: No, ma'am.
THE COURT: Juror is stricken.
MS. MARTINEZ: Number 9.
THE COURT: Basis?
MS. MARTINEZ: Oh, Your Honor, I'm going to add
something from my own experience, from a family of
psychiatrists. This was a mental health issue.
THE COURT: Any objection to Number 9 based on his
anxiety and severe tinnitus?
MS. WEINTRAUB: I don't agree that it's a cause
challenge, Judge.
MS. MARTINEZ: Severe tinnitus?
MS. WEINTRAUB: He works full-time and doesn't have a
problem.
MS. MARTINEZ: Oh, my goodness.
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MS. JIMENEZ: He's like talking about needing to be in
a confined or in a familiar space.
THE COURT: I believe Mr. Elbaz, who certainly was
willing to advise the Court of the list of medications that
he's taking, and has severe anxiety, coupled with his tinnitus
and the other medical issues, would certainly affect his
ability to focus on the evidence. The Defendant is objecting
to that?
MS. WEINTRAUB: I am, Judge. I think that's what a
peremptory could be used for. Because I think in -- and I will
tell you, I mean, he says the PPP was a very complicated
process. That's why they're looking to strike him for cause,
in my opinion. So that's why I object to it.
MS. MARTINEZ: I would be happy to show the Court my
notes, because I don't note anything about that. I note that
he feels extreme anxiety, he feels like he cannot be out of his
comfort space, and he was very hesitant in his speaking, more
than anyone else. I think it was evident --
THE COURT: I agree, and the challenge for cause is
granted.
Any further for-cause challenges?
MS. MARTINEZ: Yes, Your Honor.
For cause, Number 13, the individual that had a flight
from noon Friday to noon Monday. I think that is going to
impact his ability to serve.
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MS. WEINTRAUB: Judge, we object. And I think that
the juror said that they could work around it.
THE COURT: Well, no. He said he needed to leave noon
on December 1st. So that would mean we would not be able to
work on December 1st. And he doesn't come back until Monday
December 4th. So he's traveling to Knoxville. So to the
extent that, you know, it certainly impacts the time that we've
given to the other jurors, I do agree that there's a hardship
on his end that would affect his ability to serve, and it would
more importantly affect our ability to finish this case on
December 12th.
So, at this point, I'm going to leave him open and
maybe we can work with him in terms of his hardship, and reject
the challenge for cause at this time -- and keep 13. But I
think it's going to certainly affect and curtail our ability to
try this case.
Next challenge?
MS. MARTINEZ: Yes, Your Honor.
Nineteen. This is the lady that had the immune
suppressant drugs and also a big loss in the family that made
her --
THE COURT: Any objection?
MS. WEINTRAUB: Judge, she seemed fine. I mean, you
know, I think it became contagious, this anxiety thing. She
seemed forceful in her speech. She understood everything. I
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don't think it's a challenge for cause.
THE COURT: Did you read her questionnaire? "I
recently lost my 19-year-old cat. My parents are not doing
well health-wise and live abroad. There have been feelings" --
"somewhat overwhelmed and sad lately."
She stated that she's unable to serve. So I'm just
wondering -- you know, at some point -- I can't force an
individual to be here for 10 trial days and expect them to be
able to focus based on their expressed inability.
MS. WEINTRAUB: Respectfully, Judge -- respectfully --
and I caught the Court's verbiage, "a family member," and I am
an avid animal lover, as I think everybody knows. But it's a
cat.
THE COURT: And I'm not here to place value or
emphasis on one's loss. She is suffering a loss and she's
expressed that to the Court. So based on her statements to the
Court, I do have a concern as to whether she'll be able to
focus on the evidence in this case. So in terms of
Ms. Kennedy, as well as Mr. Elbaz, I think that she's expressed
it and the challenge for cause is granted.
Any further challenges for cause?
MS. MARTINEZ: Number 20.
THE COURT: Basis?
MS. MARTINEZ: The juror indicated that she could not
be fair, and I have it in capital letters. Apparently, she
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emphasized it and the Court followed up also.
THE COURT: Oh. It was based on a family member's
arrest. Any objection?
(Pause in proceedings.)
THE COURT: Any objection?
MS. WEINTRAUB: Judge, again, I don't agree. I
think -- I don't agree that it's a cause challenge. I think
that, you know, maybe we should question the juror privately,
but...
MS. MARTINEZ: This is a juror that the Court followed
up on.
THE COURT: That's correct.
All right. Noting the objection, it's overruled. The
challenge for cause is granted.
Any further for-cause challenges?
MS. MARTINEZ: Twenty-two. This is a juror, Your
Honor, who in her questionnaire asked us please to question her
in private. She's the one that suffers from anxiety and takes
medications that makes her sleepy. And again, I do take
medical issues such as anxiety as serious, not something to be
taken lightly.
THE COURT: Any objection?
MS. WEINTRAUB: No, ma'am.
THE COURT: The challenge for cause is granted.
Any further for-cause challenges?
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MS. MARTINEZ: Twenty-three, Your Honor. This is the
individual who has hired the Defendant's previous sales
director and said that he would have difficulty in this case
because it's a small developer community.
THE COURT: Any objection?
MS. WEINTRAUB: Yes. He said he could be fair.
THE COURT: No. He said --
MS. JIMENEZ: He said he could not be fair.
THE COURT: We must be -- he specifically said that
the fact that his sales director was Mr. Sheppard's former
sales director might have an effect on his ability to be fair
and impartial. Those were his words.
Based on the questions posed, the response given, the
Court certainly has a reasonable doubt as to whether this
individual can be fair and impartial. The challenge for cause
is granted.
Any further for-cause challenges?
MS. MARTINEZ: Your Honor, Number 35 -- did I miss
one? Oh. Because I'm going in the wrong order.
Okay. Twenty-eight, Your Honor, is an individual who
cannot speak English.
THE COURT: Based on language barrier, any objection?
MS. WEINTRAUB: No.
THE COURT: The juror is stricken.
MS. MARTINEZ: Thirty-five is a single parent -- did I
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miss one?
MS. WEINTRAUB: For a 17-year-old?
MS. MARTINEZ: Oh, my goodness. I'm going -- I'm not
going in order, Your Honor.
Thirty-one also for Spanish.
THE COURT: Any objection to Mayeta Hechavarria based
on the language barrier?
MS. WEINTRAUB: No, Your Honor.
THE COURT: Juror is stricken.
MS. MARTINEZ: Now I'm going in order.
Number 35. This is a single parent of a 17-year-old
within the autism spectrum that she picks up every day at two.
THE COURT: Any objection?
MS. WEINTRAUB: Yes.
THE COURT: I have a concern. There are other family
members. She's not the only one that picks up her child, and
the child is 17 year old. I understand the child is on the
spectrum.
MS. MARTINEZ: She's a single mother with a child that
has autism and cannot take public transportation.
THE COURT: And I think she stated that there was a
family member that was picking up her child today.
MS. JIMENEZ: Today. And she did say that she did not
have someone else who could cover for her otherwise. She
seemed very adamant.
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MS. MARTINEZ: Your Honor, I'm only asking for the
sake of the juror. I'm not asking for myself.
THE COURT: I understand. I'm looking to see whether
there are other family members.
(Pause in proceedings.)
THE COURT: All right. Well, she has expressed that
she has to pick up her child. And albeit even though 17, that
is a basis for cause. The juror is stricken.
Any further for-cause challenges?
MS. MARTINEZ: The individual -- what I have is that
she has a trip that would put her back here on Monday evening.
THE COURT: Which juror?
MS. MARTINEZ: This is 42.
THE COURT: I'm not willing to -- that's the one going
to Orlando. I'm not willing to strike for cause at this time.
We can certainly accommodate her schedule coming in on Monday.
The challenge for cause at this point is denied.
Any further for-cause challenges?
MS. MARTINEZ: Your Honor, again, I'm looking for
issues that the jurors had.
Oh. It's the Spanish speaker? Do I have Number 46
having an issue with English?
THE COURT: I specifically advised Ms. Perez Marti
that if she had difficulty to let me know and raise her hand,
and she did not do so. So the challenge for cause is denied.
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MS. WEINTRAUB: Judge, I don't know if she understood,
to be honest.
THE COURT: She did understand.
MS. WEINTRAUB: Okay. Okay.
THE COURT: And certainly my evaluation of the juror's
responses indicate to me that she understood.
Any further for-cause challenges on behalf of the
Government, and then we'll move to the Defendant?
MS. MARTINEZ: No, Your Honor.
MS. WEINTRAUB: Yes, Your Honor.
THE COURT: All right. On behalf of the Defendant?
MS. WEINTRAUB: Your Honor, Number 3 stated that they
were biased in favor of the police and they would lean toward
the law enforcement testimony more than any other testimony.
THE COURT: Any objection?
MS. MARTINEZ: Your Honor, I think we could
rehabilitate her, honestly.
THE COURT: Well, we didn't rehabilitate her. She
specifically stated that she would give more weight to a police
officer's testimony.
Based on the question posed, the response given, the
challenge for cause is granted.
Any further for-cause challenges?
MS. WEINTRAUB: Yes, Your Honor.
Number 6 stated that he believes that the Defendant is
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hiding something if he doesn't testify, and I tried twice to
rehabilitate him to no avail.
THE COURT: Response by the Government?
MS. MARTINEZ: No objection, Your Honor.
THE COURT: Well, I have an objection because
specifically Mr. Francis stated that there were other reasons
why the Defendant wouldn't testify; he could be quiet or he
could believe that he's saying something wrong. You were
asking him about whether they would expect the Defendant to
testify, and he was giving reasons why he wouldn't.
Based on the questions posed, the response given, the
challenge for cause is denied.
Any further for-cause challenges?
MS. WEINTRAUB: Yes, Your Honor.
Number 12 also stated -- she was the woman who was
sitting in the second row on the end -- very forcefully leaned
in favor of law enforcement testimony.
THE COURT: Any objection?
MS. MARTINEZ: Oh. We do object. She did not state
that.
THE COURT: She stated she might lean towards law
enforcement. That was specifically out of her mouth.
Based on the questions posed, the response given, the
Court has a reasonable doubt as to whether this juror can be
fair and impartial. Based on her answers, the challenge for
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cause is granted.
MS. WEINTRAUB: Ms. Cole, Number 48. "He's obviously
here for a reason," no matter where I went. I went to two
other questions with her, and she said: "The truth will set
you free and he's here for a reason."
THE COURT: Response?
MS. JIMENEZ: Judge, there was nothing she said that
was objectionable.
THE COURT: "If you are innocent, you will testify and
you will speak the truth. The truth will set you free."
MS. JIMENEZ: Well, the Court didn't inquire and we
weren't permitted --
THE COURT: Well, what do I need to inquire about?
Based on her response, doesn't that evidence a reasonable doubt
as to whether she can be fair and impartial?
The challenge for cause is granted.
Any further challenges for cause?
MS. WEINTRAUB: Thirty-nine said -- Number 39,
Gabriel -- "He's here because he did something. He did
something."
THE COURT: Is that what he said?
MS. JIMENEZ: I mean, there was no follow-up. There
was no ability to ask him any questions.
THE COURT: Mr. Sanchez Gutierrez specifically said:
"He's here because he did something, but does not mean he's
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guilty." That was exactly what he said.
Based on the response given, and the questions posed,
the Court does not have a reasonable doubt, believes this juror
can be fair and impartial. The challenge for cause is denied.
Any further for-cause challenges?
MS. WEINTRAUB: Judge, I would again, on Number 16 --
I would state, aside from the tweet, that she did say that she
is distracted by the situation in Gaza. I did not follow up
for the reasons I've already stated. But the fact that she
would be distracted and not giving her full attention to
Mr. Sheppard, and instead probably trying to think of ways to
annihilate Israel, I would move for cause.
THE COURT: Response by the Government?
MS. WEINTRAUB: "And he's here for a reason." And I
don't know if that's because he's Jewish or he's here and he
must have done something.
THE COURT: Response by the Government, if any?
MS. MARTINEZ: Your Honor, this young person is
impacted -- I haven't seen the social media posts, so I must
say I'm just reacting on what she said in court. And I'm just
saying the war could impact anyone, could distract anyone. I
don't think that is enough for a cause challenge.
THE COURT: Based on the questions posed, the response
given, the Court does not have a reasonable doubt and believes
this juror can be fair and impartial. The challenge for cause
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to Juror Number 16 is denied.
Any further for-cause challenges?
MS. WEINTRAUB: No, Your Honor.
THE COURT: All right. Then let us look at the first
12 as our jury, and we will alternate with peremptory
challenges.
The first 12 consist of Cabrera, Burgos, Francis,
Lane, Cordero, McEkron, Suarez, Rosell, Josephs, Yates, Garcia,
Chaviano. Those are our 12.
Any peremptory challenges? First on behalf of the
Government.
MS. MARTINEZ: Okay. We have -- one second. Your
Honor, sorry for this. We have Cabrera. We have Burgos.
THE COURT: Francis, Lane, Cordero, McEkron, Suarez
Vidal, Rosell, Josephs, Yates, Garcia, Chaviano.
MS. MARTINEZ: We go one person at a time or the whole
panel?
THE COURT: Looking at the 12, are there any
challenges on behalf of the Government?
MS. JIMENEZ: We do one and one?
THE COURT: Yes, that's correct.
MS. JIMENEZ: Yes.
MS. MARTINEZ: Is there any back-striking, Your Honor?
MS. JIMENEZ: Is there back-striking?
THE COURT: Yes. The Court will allow back-striking
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until the jury is sworn.
On behalf of the Government?
MS. MARTINEZ: Okay.
(Pause in proceedings.)
MS. MARTINEZ: Okay. We strike 21.
THE COURT: Twenty-one is not part of the panel.
We are up to 17.
MS. JIMENEZ: Up to 17.
MS. MARTINEZ: Okay.
THE COURT: Are there any peremptory challenges on
behalf of the Government?
(Pause in proceedings.)
THE COURT: On behalf of the Government?
MS. MARTINEZ: None, Your Honor.
THE COURT: Does the Government tender this panel?
MS. JIMENEZ: Government is striking Number 6.
THE COURT: Julian Francis. And Alexis Pelaez joins
the panel.
On behalf of the Defendant?
MS. WEINTRAUB: Number 1.
THE COURT: Tracy Cabrera. And Julio Urbina joins the
panel.
On behalf of the Government?
MS. MARTINEZ: Striking 21, Your Honor.
THE COURT: Julio Urbina is stricken. And Rebecca
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Perez joins the panel.
On behalf of the Defendant?
(Pause in proceedings.)
MS. WEINTRAUB: Strike Number 4.
THE COURT: Daniel Burgos is stricken. And Roni
Bennett joins the panel.
On behalf of the Government?
MS. MARTINEZ: It's just as to Ms. Bennett?
THE COURT: It's as to the 12.
MS. MARTINEZ: Oh. I see.
Nothing from the Government.
THE COURT: Do you tender this panel?
MS. MARTINEZ: Yes.
THE COURT: On behalf of the Defendant?
MS. WEINTRAUB: Number 16.
THE COURT: Arturo Reboredo joins the panel.
On behalf of the Government?
MS. MARTINEZ: We tender.
THE COURT: All right. On behalf of the Defendant?
MS. WEINTRAUB: Judge, has Number 8 been stricken for
cause?
THE COURT: No.
MS. MARTINEZ: Your Honor, may I ask for just a review
of who we have currently on the panel and who is stricken? I
apologize.
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THE COURT: The panel consists of Lane, Cordero,
McEkron, Suarez Vidal, Rosell, Josephs, Yates, Chaviano,
Pelaez, Perez, Bennett, and Reboredo. And no one struck Juror
8 for cause.
On behalf of the Defendant?
MS. WEINTRAUB: He's the one with the seven-year-old,
Your Honor. If I didn't move to strike him for cause, I
apologize. He was the one who said he has a seven-year-old and
that he will have problems getting her picked up because his
wife does work, and for 10 days it would be a problem.
THE COURT: Is there any objection to striking
Mr. Cordero for cause, Ms. Jimenez or Ms. Martinez?
MS. MARTINEZ: What's the number of Mr. Cordero?
THE COURT: Number 8.
MS. JIMENEZ: He said that he or his wife could pick
up their child.
THE COURT: I agree. The challenge for cause is
denied.
On behalf of the Defendant? We are now addressing
peremptory challenges to the panel.
MS. WEINTRAUB: Strike 8.
THE COURT: Madelin Marichal joins the panel.
On behalf of the Government?
MS. MARTINEZ: Okay. That's Number 27?
THE COURT: That's correct.
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MS. MARTINEZ: Yes, Your Honor. We tender that.
THE COURT: I'm sorry?
MS. MARTINEZ: We tender.
THE COURT: All right. On behalf of the Defendant?
MS. WEINTRAUB: Judge, we would strike 11, Number 11.
THE COURT: Kyle Cauthen joins the panel.
On behalf of the Government?
MS. JIMENEZ: Your Honor, the Government moves to
strike 21 -- I'm sorry -- 29, Mr. Cauthen.
THE COURT: Yaileen Gonzalez joins the panel.
On behalf of the Defendant?
MS. WEINTRAUB: We strike Number 15.
THE COURT: David Mejia joins the panel.
On behalf of the Government?
MS. MARTINEZ: Tender.
THE COURT: On behalf of the Defendant?
MS. WEINTRAUB: We'll strike 17, Your Honor.
THE COURT: Erik Rivera joins the panel.
On behalf of the Government?
MS. MARTINEZ: We tender, Your Honor.
THE COURT: On behalf of the Defendant?
(Pause in proceedings.)
MS. WEINTRAUB: Judge, can I have a minute?
(Pause in proceedings.)
MS. MARTINEZ: Your Honor, I just want to review
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again. We have Ms. Lane, Mr. Cordero --
THE COURT: No. Mr. Cordero was stricken by the
Defendant.
MS. MARTINEZ: Okay. That's right. Okay. So we have
Number 7.
THE COURT: Lane, McEkron, Rosell, Josephs, Pelaez,
Perez, Bennett, Reboredo, Marichal, Gonzalez, Mejia, and
Rivera.
On behalf of the Defendant?
(Pause in proceedings.)
THE COURT: On behalf of the Defendant?
MS. WEINTRAUB: Judge, we'll use a peremptory on 25.
MS. MARTINEZ: On who?
MS. WEINTRAUB: Twenty-five.
THE COURT: Naphat Thanoosorn joins the panel.
On behalf of the Government?
MS. MARTINEZ: Your Honor, I'm having trouble with the
names. What juror number is that?
THE COURT: Thirty-four.
(Pause in proceedings.)
THE COURT: On behalf of the Government?
MS. MARTINEZ: We strike 14 and 34.
THE COURT: You're only exercising one. Is it 14?
MS. MARTINEZ: Okay. Fourteen.
THE COURT: Javier Cuba joins the panel.
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On behalf of the Defendant?
MS. WEINTRAUB: Judge, we strike 36.
THE COURT: Juliana Gomez joins the panel.
On behalf of the Government?
(Pause in proceedings.)
THE COURT: On behalf of the Defendant, I just want to
keep track of the numbers.
(Pause in proceedings.)
THE COURT: On behalf of the Government?
MS. MARTINEZ: We're striking 37, Your Honor.
THE COURT: Mirna Ochoa joins the panel.
On behalf of the Defendant?
The Defendant has one peremptory challenge left.
MS. WEINTRAUB: We'll accept the panel, Judge.
THE COURT: Okay. On behalf of the Government?
You have one peremptory challenge left. We are up to
Mirna Ochoa.
(Pause in proceedings.)
THE COURT: On behalf of the Government?
(Pause in proceedings.)
MS. MARTINEZ: Thirty-four. Strike 34, Your Honor.
THE COURT: Exercising the last peremptory challenge,
leaving -- Sanchez Gutierrez, Juror Number 39, joins the panel.
MS. WEINTRAUB: We strike 39.
THE COURT: Exercising the last peremptory challenge.
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Evelyn Zaldivar joins the panel.
All right. We have now 12, and I would like to have
at least two, hopefully three, alternates. I will afford each
side one challenge for the alternates. And the alternates
would be Opdeweegh, Soto, and Dunlop.
I do want to advise that Soto we had addressed before.
This was the individual that was traveling to Orlando. So if
both sides are in agreement, I would skip over Soto -- strike
Soto due to her schedule, and it would be Opdeweegh, Dunlop,
and Johnson. Is there any objection to that?
First, let's address Soto. Any objection to the Court
striking her based on her Orlando trip?
MS. MARTINEZ: No, Your Honor.
THE COURT: On behalf of the Defendant?
MS. WEINTRAUB: Judge, didn't she say that she could
reschedule that?
THE COURT: No. She said she had non-refundable hotel
reservations. So we would need to adjust our schedule to
accommodate her on the back end on 12/4, when we're supposed to
be in session.
Is there any objection?
(Pause in proceedings.)
MS. WEINTRAUB: Yes, Judge.
THE COURT: All right. You want to exercise a strike
on Soto? And we'll go to Opdeweegh, Dunlop -- if you strike
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Soto, then we'll get to Johnson.
I'd like to have at least three alternates, given that
we're going to be covering two weekends.
MS. JIMENEZ: So the Court is striking 42 for cause?
THE COURT: Well, the Defendant can challenge -- right
now, the three alternates are Opdeweegh, Soto, and Dunlop. Any
objection to either three? I'll afford each side one
peremptory challenge.
First on behalf of the Government.
MS. MARTINEZ: I thought we were going to accommodate
Soto's schedule.
THE COURT: Well, we will have to. I'd like not to
because we have a trial that needs some time. So if we
accommodate Soto, then we would most likely need to leave early
on December 1st because she needs to be in Orlando at four, and
then we would need to start late on December 4th, since she's
traveling back on that date.
MS. MARTINEZ: Your Honor, I thought the options were
41, 43, and 44, and that you were going to strike 42 for cause.
THE COURT: Well, I would if there was not an
objection. If there's an objection, then there's -- at this
point, we can accommodate the schedule.
So right now those are the three alternates. Is there
any objection?
MS. MARTINEZ: The Defense is objecting to --
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THE COURT: Is there any objection by the Government
to Opdeweegh, Soto, or Dunlop? I will afford one peremptory
challenge per side. Any objection?
MS. MARTINEZ: We'll strike her, Your Honor.
THE COURT: Who?
MS. MARTINEZ: Forty-two.
THE COURT: Now it's Opdeweegh, Dunlop, Johnson.
Any objection by the Defendant?
MS. WEINTRAUB: Yes. We object to Johnson.
THE COURT: All right. Then now Jimmie Alford is now
our alternate.
MS. MARTINEZ: May I -- I realize that it's a
peremptory challenge; however, I have noted how many minorities
have been struck. So I'd like to hear the reason for the
striking of Mr. Johnson.
THE COURT: Hold on. Let me identify Mr. Johnson,
Aubrey Johnson, Juror Number 44.
Aubrey Johnson is an African-American male. Is there
a gender- and race-neutral reason for the strike?
MS. WEINTRAUB: His whole family are police officers,
Your Honor. He's a security guard and his family and close
family are City of Miami police, Miami Beach, chief of El
Portal.
THE COURT: The Court finds those reasons proffered as
race and gender neutral, and will allow the strike.
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MS. WEINTRAUB: Judge, also his son and his wife, in
addition, for the record, are both police officers.
THE COURT: Now, that leaves -- my concern is with the
third alternate. It would be Jimmie Alford, who did express
that his wife is on dialysis -- or has diabetes, takes her to
the dialysis center every day. He's the one that has the cold.
Is there any objection to striking Jimmie Alford as an
alternate for cause?
MS. MARTINEZ: No objection.
THE COURT: Any objection by the Defendant?
MS. WEINTRAUB: No.
THE COURT: All right. Then that would leave us with
Perez Marti, who is the individual that did express some
questioning as to whether she could understand all of the
English, although she expressed that she was able to understand
moving forward and that she would raise her hand if she wasn't.
Is there any objection to Perez Marti as the third
alternate?
MS. WEINTRAUB: Hopefully, we won't get to a third
alternate, Judge. I'm concerned.
THE COURT: Well, we can leave on two alternates and
hope that both alternates --
MS. WEINTRAUB: Would they stipulate to -- Aimee, you
won't stipulate to 47 as the third alternate? Can we just
agree?
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MS. JIMENEZ: Well, we're both out of challenges. The
question is whether we do two alternates or three.
MS. WEINTRAUB: Well, if we agree to cause for her not
being able to understand, or taking a chance, we'd get to 47.
THE COURT: Do you want to agree to Iliana Caballero?
She's the individual that served on another state jury, found
it difficult, but expressed that she would be willing to try.
Any objection or we can proceed with two alternates?
MS. JIMENEZ: I mean, she doesn't want to be here,
Your Honor.
THE COURT: All right. Then let's proceed with two
alternates. Our two alternates will be Lodewijk Opdeweegh and
John Dunlop.
All right. Let's line up the jurors. Let's bring
them in.
Our panel consists of the following: Ruth Lane,
Carlton McEkron, Teobaldo Rosell, Alexis Pelaez, Rebecca Perez,
Arturo Reboredo, Madelin Marichal, Yaileen Gonzalez, David
Mejia, Erik Rivera, Mirna Ochoa, Evelyn Zaldivar. Our
alternates are Lodewijk Opdeweegh and John Dunlop.
MS. JIMENEZ: Your Honor, I'm sorry. One question. I
thought Juror Number 46 had not been stricken. I don't know
why she could not be the third alternate.
THE COURT: That was the one I expressed that she had
a concern about Spanish.
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MS. JIMENEZ: Spanish, but --
THE COURT: But she would be willing to try. She
didn't raise her hand.
MS. JIMENEZ: Right. So I thought we were talking
about Juror Number 47, who expressed --
THE COURT: Well, Ms. Weintraub had asked if you were
willing to stipulate to Juror Number 47. And since there
wasn't a stipulation, and my concern is keeping Perez Marti,
since she's the third alternate, with someone who has expressed
a concern about understanding the case, moving forward, based
on her limited English, we're going to go with two alternates.
MS. JIMENEZ: Your Honor, I apologize. I thought we
were talking about 47, who continually expressed her discomfort
from her previous experience.
THE COURT: That's the individual that Ms. Weintraub
asked for a stipulation.
MS. JIMENEZ: Right. So I thought she should be
released and I thought we were on number 47 instead of number
46.
THE COURT: Forty-seven is the individual that served
on a state jury.
MS. JIMENEZ: I understand. And that's who I think
should be released because she continually expressed
discomfort --
THE COURT: And then we're back to where we were,
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Ms. Perez Marti, Juror Number 46.
MS. JIMENEZ: No objection. I mean, she seemed to
understand everything.
THE COURT: Is there any objection to Ms. Perez Marti
as a third alternate?
MS. WEINTRAUB: Yes, Your Honor.
THE COURT: And the basis for the objection?
MS. WEINTRAUB: I'm concerned about her ability to
understand the nuance of the language. It's a very complicated
case. There are over 50,000 documents that are going to be
introduced in evidence. I don't know that she's going to
understand or follow it, and I don't know that that's a juror
that I would want for my client if we get there.
THE COURT: Then we're going to proceed with two
alternates, because I do have a concern based on what she's
expressed in the beginning.
So we have a jury of 12 and two alternates. So let's
line up the jurors. Let's bring them in. I will advise
them -- we'll swear them in. I'll advise them that the Court
will give them preliminary instructions following our one-hour
lunch recess.
Okay. All right. Let's bring in the -- can we line
them up and we'll bring them in.
Both sides ready to proceed?
On behalf of the Government?
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Both sides ready to proceed?
MS. JIMENEZ: Yes, Your Honor.
THE COURT: On behalf of the Defendant?
MS. WEINTRAUB: Yes, Your Honor.
THE COURT: All right. Then let's bring in the jury.
And if we can ask the individuals in the gallery if
you could just accommodate the jurors and please step to --
either the last row or the vestibule. I'm not sure if we're
using all the rows.
COURTROOM DEPUTY: We are using --
THE COURT: Okay. We're using all the rows. So if I
can ask you to please step outside.
(Before the Panel, 1:49 p.m.)
THE COURT: All right. Welcome back, Ladies and
Gentlemen.
Please be seated. Thank you for your extended
patience.
We have selected a jury to try the case of the United
States of America v. Eric Dean Sheppard.
I'm going to ask the following individuals to stand
and make your way to the jury box. You will then be sworn in
collectively as Members of the Jury:
Ruth Lane, Carlton McEkron, Sr., Teobaldo Rosell,
Alexis Pelaez, Rebecca Perez, Arturo Reboredo, Madelin
Marichal, Yaileen Gonzalez, David Rafael Mejia, Erik Rivera,
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Mirna Ochoa, Evelyn Ramos Zaldivar, Lodewijk Opdeweegh, and
John Dunlop.
COURTROOM DEPUTY: Can you all please stand for me and
raise your right hand.
(Jury sworn, 1:54 p.m.)
THE COURT: With the exception of the Members of the
Jury that have been sworn, I am able to advise each of you that
you are free to leave the courtroom. You are not free to leave
the courthouse. I would ask that you return to the jury pool,
that will give you further instructions. I'm certain you will
take a lunch recess at the very least, but I want to thank you
for giving us the opportunity to get to know you.
Have a pleasant afternoon and a happy holiday season.
COURT SECURITY OFFICER: All rise.
(Panel excused.)
THE COURT: All right. Go ahead and have a seat.
Ladies and Gentlemen of the Jury, I know the hour is
late. You have not had your lunch recess. There are
instructions that I do need to give you and an explanation of
the course of the trial. That will begin after a one-hour
recess for lunch. But let me give some cautionary instructions
to you, and I will give further instructions at the return of
our lunch hour.
First and foremost, you must be prompt. We cannot
begin or continue until all of you are here. So it is very
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important that if I give a time -- for example, we're going to
take a one-hour recess for lunch and I would ask that you be
back at three o'clock -- that you're in the jury room, ready to
come into the courtroom at three o'clock.
Second, you may see the attorneys, the Defendant, some
of the individuals that are seated at counsel table, or even
the witnesses through the course of the trial when you come
into the courthouse or when you leave the courthouse, and you
might see that they are not exchanging any pleasantries, they
are oftentimes not having any eye contact with you at all.
Please don't be offended. Please understand they are under a
direct court order not to have any contact with you. So please
understand that they are complying with my order.
And I also want to advise you of some of the comforts
of home. Certainly in the jury room we have snacks. We have a
refrigerator. We have a coffee maker. We have a refrigerator
to bring a lunch and we also have a microwave for your use. So
you're not required to go out to a restaurant during the lunch
recess, but at the same time you are free to leave the
courthouse. I would just ask that you be mindful of the time
and be here so that we can continue promptly.
As well, as I bring coffee and tea into the courtroom,
I would like you to be comfortable. So you can certainly bring
in a refreshment so that you are comfortable during the course
of the trial.
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If you do need to take a comfort break earlier than I
anticipate, all you need to do is raise your right hand. But
please understand all of us will take a comfort break together.
But we will take appropriate breaks in the morning and
afternoon.
I will give you the schedule, as well as further
instructions. But at this point in time, we will have a
one-hour recess for lunch. If you'll look at your watch, I
will see everyone back here precisely at three o'clock. You're
going to come through the jury room, and the courtroom deputy
will give you further instructions.
So I'll see you at three o'clock. Have a pleasant
lunch.
COURT SECURITY OFFICER: All rise for the jury.
(Jury not present, 1:58 p.m.)
THE COURT: All right. I will see everyone back here
at three o'clock.
With the lateness of the hour, and both sides
requesting 45 minutes for opening statement, plus my
instructions on the law, I don't anticipate that we are going
to get to a witness's testimony today. However, I'm not
certain, on behalf of the Government, if there are short
witnesses that have made arrangements to be here that perhaps
we can get on and off the witness stand.
MS. JIMENEZ: We would like to start with our first
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witness. She's not very long.
THE COURT: Who is that?
MS. JIMENEZ: Althea Harris from the SBA.
THE COURT: All right. Then let's see where we are.
We'll start promptly at three o'clock.
Have a pleasant lunch. And I'll see you back at that
time.
MS. JIMENEZ: Thank you.
MS. MARTINEZ: Your Honor, may we leave some of our
computers and some of our exhibits?
THE COURT: If you'll push everything to the side,
because we do have a hearing that we're conducting now.
(Recess from 2:00 p.m. to 3:04 p.m.)
THE COURT: All right. Welcome back. I hope everyone
had a nice lunch.
Go ahead and have a seat for a moment.
I was advised that one of our jurors, Juror Number 13,
had expressed that he needed to be away for his son's game.
And he is a member of our jury. So we can do one of two
things. We can either accommodate his schedule, which means we
would not be in session this Friday, and on Monday we would be
in session for half a day to accommodate his travel back to
Miami, or we can agree to strike him and bring in one of the
two alternates.
MS. JIMENEZ: The latter from the Government, Your
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Honor.
THE COURT: I'm sorry?
MS. JIMENEZ: Strike him, and we move in one of the
alternates.
(Court reporter interruption.)
(Pause in proceedings.)
THE COURT: On behalf of the Defendant?
MS. WEINTRAUB: Yes, Your Honor?
THE COURT: Ms. Jimenez had suggested that we strike
Juror Number 13 and replace him with an alternate.
What is the Defendant's position?
MS. WEINTRAUB: That we want to keep him, Your Honor.
I mean, I'm happy ex parte to tell the Court why on the record,
if the Court wants me to, but there is a very specific reason.
THE COURT: Well, unless both sides are in agreement,
we've already sworn in the jury, and we will accommodate his
schedule, which means we will not be in session on Friday and
we will pick up at one p.m. on Monday, if that's what -- what
the --
MS. JIMENEZ: It's not.
THE COURT: -- the alternative is. But I am just
reminding you that after December 12th I'm going to have a hard
time accommodating this trial.
MS. JIMENEZ: Your Honor, we don't -- I mean, we would
ask the Court to strike him. There are two alternates. We can
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replace him with one of them. Both alternates are acceptable
to both sides. The Court has already indicated that the trial
cannot last longer than the 10 days. We, you know, haven't
begun to put on our first witness. We're concerned about
missing another day and a half.
THE COURT: The parties have agreed that this is the
jury. Unless the parties both agree, then I can't strike him
because we already knew before he was selected that that was
the schedule. He was very clear. And for whatever reason, all
of us overlooked the fact that he is traveling to Knoxville and
will not be back -- he's not going to be here on Friday and
he's traveling back on Monday.
So we selected him. Neither party chose to challenge
him for cause, the Court overlooked that he is on the jury, and
we have to accommodate his schedule. So I'm not going to at
this point sua sponte strike a juror and bring in an alternate
when we can accommodate his schedule. We just won't be in
session on Friday and we will pick up Monday at one p.m. to
accommodate his schedule, unless both parties are in agreement.
Otherwise, we continue.
Is that the Defendant's position?
MS. WEINTRAUB: Yes, Your Honor.
THE COURT: Okay. Then we will not be in session on
Friday, and on Monday we will begin at one p.m.
Liz, if you'll let Juror Number 13 know, and then
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we'll bring them back in. And let me adjust our schedule
accordingly.
COURTROOM DEPUTY: Judge, they also wanted to make
sure that they have the schedule for the trial once again
before they leave today.
THE COURT: I'm going to give them the schedule right
now.
COURTROOM DEPUTY: Okay. Perfect. Thank you.
Ready?
THE COURT: Yes.
COURTROOM DEPUTY: Okay.
COURT SECURITY OFFICER: All rise for the jury.
(Before the Jury, 3:08 p.m.)
THE COURT: All right. Welcome back, Ladies and
Gentlemen.
Please be seated.
I want to make sure that you understand that there are
no assigned seats, wherever you feel most comfortable. I'm not
certain if one of you on the second row wants to move. You're
certainly welcome to, to give yourself a little bit more room.
Welcome, Ladies and Gentlemen of the Jury.
You may have a seat.
Now that you have been sworn, I do need to explain
some basic principles about a criminal trial and your duty as
jurors. These are preliminary instructions, and at the end of
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the trial I will give you more detailed instructions.
It will be your duty to decide what happened so that
you can determine whether the Defendant is guilty or not guilty
of the crimes charged in the Indictment. At the end of the
trial, I will explain the law that you must follow to reach
your verdict.
You must follow the law as I explain it to you, even
if you do not agree with the law.
You must decide the case solely on the evidence
presented here in the courtroom. Evidence can come from many
forms. It can be testimony about what someone saw, or heard,
or smelled, it can be an exhibit admitted into evidence, and it
can be someone's opinion.
Some evidence proves a fact indirectly, such as a
witness who saw wet grass outside and people walking into the
courthouse carrying wet umbrellas. Indirect evidence,
sometimes called "circumstantial evidence," is simply a chain
of circumstances that proves a fact. As far as the law is
concerned, it makes no difference whether evidence is direct or
indirect. You may choose to believe or disbelieve either kind
and should give every piece of evidence whatever weight you
think it deserves.
Certain things are not evidence and must not be
considered as evidence. I'm going to list them for you now.
Statements and arguments of the lawyers. In their
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opening statements and closing arguments, the lawyers will
discuss the case, but their remarks are not evidence.
Questions and objections of the lawyers. The lawyers'
questions are not evidence. Only the witnesses' answers are
evidence.
You should not think that something is true just
because a lawyer's question suggests that it is. For instance,
if a lawyer asks a witness: "You saw the Defendant hit his
sister, didn't you," that question is no evidence whatsoever of
what the witness saw or what the Defendant did unless the
witness agrees with it.
There are rules of evidence that control what can be
received into evidence. When a lawyer asks a question or
offers an exhibit, and a lawyer on the other side thinks that
it's not permitted by the rules of evidence, that lawyer may
object. If I overrule the objection, then the question may be
answered or the exhibit received. If I sustain the objection,
then the question cannot be answered and the exhibit cannot be
received.
Whenever I sustain an objection to a question, you
must ignore the question and try not to guess what the answer
would have been.
Sometimes I may order that evidence be stricken and
that you disregard or ignore the evidence. That means that
when you are deciding this case you must not consider that
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evidence.
Some evidence is admitted only for a limited purpose.
When I instruct you that an item of evidence has been admitted
for a limited purpose, you must consider it only for that
limited purpose and no other.
In reaching your verdict, you may have to decide what
testimony to believe and what testimony not to believe. You
may believe everything a witness says, or part of it, or none
of it.
In considering the testimony of any witness you may
take into account the opportunity and ability of the witness to
see, or hear, or know the things testified to, the witness's
memory, the witness's manner while testifying, the witness's
interest in the outcome of the case and any bias or prejudice,
whether other evidence contradicted the witness's testimony,
the reasonableness of the witness's testimony in light of all
the evidence, and any other factors that bear on believability.
I will give you additional guidelines for determining
credibility of witnesses at the end of the case.
As you know, this is a criminal case. There are three
basic rules about a criminal case that you must keep in mind.
First, the Defendant is presumed innocent until proven guilty.
The Indictment against the Defendant, brought by the
Government, is only an accusation, nothing more. It is not
proof of guilt or anything else. The Defendant, therefore,
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starts out with a clean slate.
Second, the burden of proof is on the Government until
the very end of the case. The Defendant has no burden to prove
his innocence, or to present any evidence, or to testify.
Since the Defendant has the right to remain silent and may
choose whether to testify, you cannot legally put any weight on
a defendant's choice not to testify. It is not evidence.
Third, the Government must prove the Defendant's guilt
beyond a reasonable doubt. I will give you further
instructions on this point later, but bear in mind that the
level of proof required is high.
Our law requires jurors to follow certain instructions
regarding their personal conduct in order to assure a just and
fair trial, and I will explain and give those instructions to
you now.
Do not talk, either among yourselves or with anyone
else, about anything related to the case. You may tell the
people with whom you live and your employer that you are a
juror and give them information about when you will be required
to be in court, but you may not discuss with them or anyone
else anything related to the case.
Do not at any time during the trial request, accept,
agree to accept, or discuss with any person any type of payment
or benefit in return for supplying any information about the
trial. You must promptly tell me about any incident you know
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of involving any attempt by any person to improperly influence
you or any other Member of the Jury.
Do not visit or view the premises or place where the
charged crime was allegedly committed, or any other premises or
place involved in this case. And you must not use the Internet
Maps, or Google Earth, or any other program or device to search
for a view of any location discussed in the testimony.
Do not read, watch, or listen to any accounts or
discussions related to the case, which may be reported by
newspapers, television, radio, the Internet, or any other news
media. And do not attempt to research any fact, issue, or law
related to this case, whether by discussions with others, by
library or Internet research, or by any other means or source.
In this age of instant electronic communication and
research, I want to emphasize that, in addition to not talking
face to face with anyone about the case, you must not
communicate with anyone about the case by any other means.
That includes by telephone, text messages, email, Internet
chat, chat rooms, blogs, social networking websites, such as
Facebook, Twitter, Instagram, any of the social networking
sites.
You must not provide any information about the case to
anyone by any means whatsoever. And that includes posting
information about the case or what you're doing in the case on
any device or Internet sites. And that includes blogs, chat
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rooms, social websites, or any other means.
You must also not use Google or otherwise search for
any information about the case, or the law that applies to the
case, or to the people involved in the case, including the
Defendant, the witnesses, the lawyers, or the judge. It is
important that you must understand why these rules exist and
why they are so important.
Our law does not permit jurors to talk with anyone
about the case or to permit anyone to talk to you about the
case because only jurors are authorized to render a verdict,
only you've been found to be fair, and only you have promised
to be fair. No one else is so qualified.
Our law also does not permit jurors to talk among
themselves about the case until the Court tells them to begin
their deliberations, because premature discussions can lead to
to a premature final decision.
Our law also does not permit you to visit a place
discussed in the testimony. First, you cannot be sure that the
place is in the same condition as it was on the day in
question.
And second, even if it were in the same condition,
once you go to a place discussed in the testimony to evaluate
the evidence, in light of what you see, you have become a
witness, not a juror. As a witness, you may now have a
mistaken view of the scene that neither party may have the
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chance to correct, and that is not fair.
Finally, our law requires that you not read or listen
to any news accounts of the case, and that you not attempt to
research any fact, issue, or law related to the case. Your
decision must be based solely on the testimony and other
evidence presented in this courtroom.
Also, the law often uses words and phrases in special
ways, so it's important that any definition you hear come only
from me and not from any other source. It would not be fair to
the parties for you to base your decision on some reporter's
view or opinion, or upon other information that you acquire
outside of the courtroom.
These rules are designed to help guarantee a fair
trial and our law accordingly sets forth serious consequences
if the rules are not followed. So I trust that you understand
and appreciate the importance of following these rules, and in
accord with your oath and promise I know that you will do so.
Now, moving forward, if you wish, you may take
notes -- I know that you were given a notepad and pen -- to
help you remember what the witnesses said. If you do take
notes, please keep them to yourself until you and your fellow
jurors go to the jury room to decide the case. Do not let
note-taking distract you so that you do not hear other answers
by witnesses.
When you leave the courtroom, your notes should be
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left in the jury room. Whether or not you take notes, you
should rely on your own memory of what was said. Notes are to
assist your memory only. They are not entitled to any greater
weight than your memory or impression about the testimony.
Now we will begin the trial. First, the Government
will make an opening statement, which is simply an outline to
help you understand the evidence as it comes in.
Next, the Defendant's attorney may, but does not have
to, make an opening statement. Opening statements are neither
evidence nor argument.
The Government will then present its witnesses, and
counsel for the Defendant may cross-examine them.
Following the Government's case, the Defendant may, if
he wishes, present witnesses whom the Government may
cross-examine.
After all the evidence is in, the attorneys will
present their closing arguments to summarize and interpret the
evidence for you, and I will instruct you on the law.
After that, you will go to the jury room to decide
your verdict.
Now, before we do so, Ladies and Gentlemen, we have
modified our schedule to accommodate one of the jurors, so I do
want to give you the schedule as we move forward. And if it
changes, I will certainly let you know, but this is the
schedule that I have worked out with the attorneys.
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Today, obviously, we'll proceed until about five p.m.,
or certainly at the appropriate break if a witness is on the
witness stand. Tomorrow will be a full day from nine, but we
will conclude at four p.m. Wednesday will be a full day from
nine, but we'll conclude one hour early, at four p.m.
On Thursday we'll begin at nine, and once again we'll
conclude at four p.m. We will not be in session on Friday.
On Monday we will accommodate one of our juror's
schedules and we will have a half a day, from one p.m. to five
p.m. So I expect that you have an early lunch so that you are
ready to get to work right at one p.m.
On Tuesday, December 5th, will be a full day from nine
to five. On Wednesday, December 6th, will be a full day from
nine to five. We will not be in session on Thursday,
December 7th, or Friday, December 8th. We'll pick back up
again on Monday, December 11th. It will be a full day from
nine to five. And on Tuesday it will be a full day, but we
will begin at ten o'clock, to accommodate another case, until
five p.m.
And that is the anticipated schedule. If it changes,
I will certainly let you know, but that is the schedule moving
forward.
All right. So at this point in time, we will begin
with opening statements.
On behalf of the Government.
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MS. MARTINEZ: Good afternoon.
As you know, my name is Annie Martinez. I'm an
assistant United States attorney. And this is one of the few
opportunities that I will have to speak to you directly.
This is a case -- it is a crime that was done for
money. The Defendant, from May to the end of March, May 2020
to the end of March, managed to obtain $900,000 in an 11-month
period, from about May 1, 2020, to about the end of March 2021.
During that time period, he obtained, through lies,
through forgeries, by taking the identity of his banker, taking
the identity of his accountant, taking the identity of one of
his tenants, using their names and signing their names without
their consent, sending these forgeries to lenders, to the Small
Business Administration, to private lenders, and the loan
processors that were processing the loans for the private
lenders. And he did that knowingly to push forward and to make
sure that he could obtain loans that were available only during
a time period that our country was in a disaster, in a disaster
like no other that we have seen.
So what were these programs? As you-all remember --
or you're going to be relying on the evidence that we present
to you here, but as you-all remember, in March of 2020, a
declaration was made that there was a disaster in the country.
And what was happening was nationwide. It was the COVID
pandemic. At that time, there was a concern for the economy,
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and the legislators created a legislation that allowed for a
way to help small businesses that were eligible, truthfully
eligible.
Two programs became available. The first one,
sometimes we call it the PPP, but that's because it's the
Paycheck Protection Program. Paycheck Protection Program. The
purpose of this program was to protect paychecks. The idea was
to protect employees from being laid off. It was to help small
businesses to be able to make that payroll to keep these
employees during the pandemic.
The funding was limited. It ran out quickly the first
round. They had to reappropriate it again. And then again and
again it ran out quickly in 2020. There was a couple of rounds
of refunding. And in 2020 it finally closes out about August.
In other words, the Paycheck Protection Program was not
available at that point.
What became available was another program that had
also been created for the pandemic, but it had preexisted. As
we know, when there's hurricanes and other types of disasters,
there are declarations of disaster. Well, what you will learn
is that the Small Business Administration steps in in those
disaster areas where there's -- a geographic area, such as for
a hurricane, to provide what is called Economic Injury Disaster
Loans to businesses that are eligible.
What happened is that during the pandemic, with the
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Miami, Florida 33128
same legislation that created the Paycheck Protection Program,
that same legislation created the possibility that these
Economic Injury Disaster Loans, instead of being limited to one
geographic area, it was the entire nation. The entire nation
was under a declaration of disaster, if you were eligible.
Now, what was the Economic Injury Disaster Loan
program? The idea there is to provide working capital for a
business that actually has suffered an impact from the
disaster. Again, funds were not endless. They are meant for a
good purpose, so you're going to give them to the folks that
can show that it's needed.
The numbers that would be looked at here would be
money that would be needed -- what they call working capital to
cover fixed expenses that that business would not otherwise
have been able to cover except for the impact of the pandemic,
of the disaster.
These programs, which were intended for the benefit
and to help out people who were hurting, were obviously done in
a way that was advantageous. These loans had better terms,
better terms than any businessman could ordinarily get.
The Paycheck Protection Program, which was, again,
intended to help retain employees, had a one percent interest.
One percent. And the payment was deferred. And also it had
the possibility, if he used it according to the rules, to be
able to apply for actual forgiveness, which would have meant
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Miami, Florida 33128
that it was actually a grant. It had the possibility of
becoming like a grant, forgiveness. It would have been
something that you just outright received. And these are
hundreds of thousands of dollars that were available.
Take the Economic Injury Disaster Loan. Again, that
program preexisted the pandemic, but that program was also
intended to be beneficial to the small business. So they
actually go through the trouble every quarter determining what
the interest rates are in the market. And they make sure --
the Small Business Administration makes sure that the market --
that the interest rate that they're giving for these Economic
Injury Disaster Loans are lower.
In this case, the Economic Injury Disaster Loan
program interest rate at that time was 3.75. You didn't have
to put up a property or some kind of collateral like that. The
collateral was general, your business account payables, that
sort of thing -- thank you.
And for the record, I just said "thank you" because of
the windows -- the sun not coming in in my eyes.
What -- again -- like I said, the terms of the
Economic Injury Disaster Loan was that it was spread out over
30 years, a 30-year payment, as opposed to like a short-term
type of loan that a businessperson would otherwise get.
You will learn that the Defendant is a successful
developer, meaning he -- and an owner of commercial properties.
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Miami, Florida 33128
Even though he has a number of companies, what I want to help
you to keep track, so that you can keep track of what happened
in this case -- I'm going to tell you about just three of his
companies so that you can keep track. These three companies
are three companies that he used to obtain Paycheck Protection
Program loans and Economic Injury Disaster Loans.
So what are these companies? First, there's a company
that he calls -- I'm going to shorten these names, but let me
say the full name and then I'll give it a shortened name.
First, there's a company that he calls HM-UP Alafaya Trails.
What that is is a company that owns a shopping mall, a
commercial shopping mall in the Orlando area. There's actually
like a street that is called North Alafaya Trails, and that's
where that mall is. The Defendant's tenants include DICK'S
Sporting Goods, Burlington Coat Factory, rather large type of
tenants that pay large rents.
That company, which basically receives rents -- so
it's like -- the company is like a landlord company -- that
company is owned by another company of the Defendant's. So the
Defendant created basically like a corporation to hold an
ownership interest in the shopping mall company. So the
ownership company is called HM Four. They actually write it
out F-O-U-R, HM Four. That company does not have any business,
no operations, no employees, nothing like that. It is an
ownership entity. It's a company that just owns an interest in
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Miami, Florida 33128
the Alafaya Trails shopping mall company.
The Alafaya Trails company has a relationship with
another company owned by the Defendant called HM Management and
Development. My abbreviation of that is going to be HM
Management. I could give you initials, but I think initials
get difficult to remember. So the management company is the
only company that the Defendant had that at any time had had
employees, W-2 wage employees, only the HM management company.
The role of that company was to handle the affairs of the
company that owned the mall and do property management-type --
you need to direct something to happen related to the property,
et cetera.
It is that company that, prior to 2019, reported to
the Internal Revenue Service, reported to the Florida
Department of Revenue that they had employees. The management
company only ever had at most three employees. Those were
Jeanette Gonzalez, the bookkeeper for the Defendant; her
daughter, Vanessa, who provided some assistance in the
office -- these are the only folks who actually came to the
office of HM Management.
And the third person that was listed as an employee in
terms of W-2, and reported to the IRS and to the Florida
Department of Revenue, was a lady by the name of Elva Baluarte,
Elva Jessica Baluarte. She actually didn't come to the office.
She worked at home and took care of the kids and did other work
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Miami, Florida 33128
at the Defendant's personal home. But she was reported as an
employee.
The point is that you can see from the Defendant's own
reporting to the Internal Revenue Service, from the Defendant's
own reporting to the Florida Department of Revenue, that only
one of the companies that I referred to, the management
company, even historically had any employees.
In 2019, the year before the pandemic, a year -- that
the reason it becomes something to look at is because when
you're applying for a loan to retain employees in 2020,
everybody's looking back to 2019 to see what employees did you
have so that you can retain them in 2020. Well, by 2019 the
Defendant had not reported to the IRS that he had any employees
at any company and likewise had not done so to the Florida
Department of Revenue.
Let me just explain to you for one second why the
Florida Department of Revenue comes in. You'll have a witness
here. There's something called reemployment taxes. Basically,
in the old days, it used to be called unemployment
compensation. Whenever you have an employee, the employer is
responsible for paying a certain amount of taxes related to
funding the possibility that should that employee become
unemployed that then there's some way for that employee to get
some help after.
So the Florida Department of Revenue requires all
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Miami, Florida 33128
employers in Florida to report in who their employees are and
to provide a certain number of taxes. This ties into some of
the reporting that has to be done for the IRS. Some of the
reporting that has to be done for the -- and the only reason --
the only reason that we're discussing that here is to -- is,
number one, because it reflects what the Defendant considered
were his employees, because that's who he's reporting to the
IRS and to the Florida Department of Revenue.
But as you'll see, it also becomes important because,
in addition to the forged identities and forged documents that
I described that he submitted -- in addition to that, the
Defendant submitted, in support of his applications, completely
false, completely made-up, completely fabricated IRS forms,
lying and writing in them that he had employees that he didn't
have.
So let me stop now and show you an example. We're
going to have to zoom out.
Let's see if I can do this.
It will come.
There you go.
This is one of the false documents that was submitted.
But the reason in part that I want to make sure you see it is
because it also lets you know the responsibilities of an
employer and the costs that an employer has when they do have
someone that is a wage employee. As you can see from the top
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Miami, Florida 33128
line -- and this is really -- hopefully I can do this. Let's
see if I can set -- here we go.
There we go.
You see at the top -- maybe if I can do that -- "HM-UP
Alafaya Trails." That tells you that that is that particular
company. But what I want you to see is that he has to report
all the wages. He has to report Social Security taxes,
Medicare taxes, and he also has to report how much he pays. So
there you go. You see the signature -- let me clear that.
One of the important things about this form that you
can see in it is the additional costs. In addition to the
withholding of taxes of the employee, the Defendant not only
has to pay a Social Security portion for the employee that
he -- was withheld from them, but also the employer's portion
of the Social Security and the employer's portion for Medicare.
During the pandemic, the Defendant -- whoa, that
light.
During the pandemic, the Defendant went first for the
PPP, the Paycheck Protection Program, immediately. He actually
applied in the name of Alafaya Trails, but he wrote in the form
that it was doing business as HM Management, which HM
Management was a different company. When he actually succeeded
in getting that loan, he actually deposited it in the HM
Management account.
When he first submitted the first application,
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Miami, Florida 33128
obviously he lied about -- about the employees that he had and
the payroll that he had. The way that it worked is that the
loan would be based on two and a half times your monthly
payroll amount. The Defendant completely fabricated that
number. The result was a loan of close to 150,000.
He also lied about his employees. He actually said
that he had 80 employees. The Defendant did not have any
employees in Alafaya Trails. What you will hear is that the
Defendant's company made payments to individuals, payments to
individuals for a variety of things, be it maybe a construction
item, or another -- electrician work, some other type of work.
These were not employees. They never were.
In addition to that, which was a one percent loan that
he was able to get, after that, in the summer, the Defendant
turned -- because remember I told you the funding for the
Paycheck Protection Program was very limited -- the Defendant
turned to the Economic Injury Disaster Loan program.
During that time, he hired a company called
Nationwide, and they assigned someone to assist him with
respect to those submissions. The lady from Nationwide will
come and testify. The way that it worked was that Mr. Sheppard
would go online into the portal, answer certain questions,
those questions would go to the lady who was assisting. Her
name was Nelia Palancar. And she would -- if she had any
questions, she would contact Mr. Sheppard by phone or by text.
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Miami, Florida 33128
And they would both communicate, and she would get the approval
from him then for her to assist him in submitting it to the SBA
portal, because the Economic Injury Disaster Loan program was
submitted to the -- to that portal.
With respect to these loans, the Economic Injury
Disaster Loan, what you will see, both from Ms. Palancar as
well as from a Small Business Administration employee that will
come, whose name is Brent Motes, is that for these loans there
were two different ways that you could fill in the numbers.
Yes, he lied about employees. He did. He included again
employees that he didn't have in those loans.
But part of the way he did it as well is that he
didn't claim lost rents in the first couple of loans that he
applied to the Economic Injury Disaster Loans. What he did is
that he came up with some numbers to say revenues and cost of
goods sold. Because the way that they would calculate it was
going to be either that they would give you the revenues --
they would give you six months of a profit margin between the
cost of goods sold and the revenue, or you could get a loan for
your lost rents. It was capped out at 150,000, which is what
he got each time in any event. But what he did in the first
two loans that he applied for is that he did not say that he
had lost rents. He filled in these other numbers.
Now, these other numbers were really intended for like
a retail shop. A retail shop has gross revenues, has cost of
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Miami, Florida 33128
goods sold. They're selling, you know, pots and pans, and they
have inventory. So that's cost of goods sold, and then that's
where you would have a profit margin.
Someone in a business like his would have been more
appropriate to fill in the lost rents, but that's not what he
did. What you'll hear is that he actually tried -- he was
able, in that time period, to get one loan funded in August and
another loan funded at the end of September. These are
Economic Injury Disaster Loans. However, he did not -- that
was not the only two companies that he applied for. It turns
out that in July, when he was applying for these two loans that
he managed to get funded, he actually applied for four
different companies. He asked Ms. Palancar, through the
information he submitted, as well as through the conversations
with her, to submit applications on the same day for four
companies.
He also threw in another name that sounds similar.
It's Alafaya TRU. That's an abbreviation of the name. And he
also threw in another company called Sheppard Flagler; it
relates to another mall that he owned. Those two ultimately
were not funded. The reason I mention it is because it is part
of his scheme to try to get them funded, and he continues
trying. But let me turn to now --
THE COURT: Ms. Martinez, that's 45 minutes.
MS. JIMENEZ: Oh, no. I thought it was 30.
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400 North Miami Avenue, 10-2
Miami, Florida 33128
UNIDENTIFIED SPEAKER: I have a timer on from when she
started speaking.
THE COURT: I'm sorry. Actually, I agree. My
apologies. I had miscalculated.
MS. MARTINEZ: You would have scared me if I didn't
have my backup plan.
THE COURT: You started at 3:20. My apologies.
MS. MARTINEZ: Okay. All right.
So remember I told you that the PPP funds, the
Paycheck Protection funds, were limited. Well, they came back
around in the beginning of 2021. There was something that was
called a second round. And then the Defendant was on it again.
But now, in the second half of his effort is where you
really see him pushing with forgeries and false documents.
Because then, it is in October that he decides that he's going
to get an Economic Injury Disaster Loan. Without Nelly
Palancar to help him, he's going to get an Economic Injury
Disaster Loan for that company HM Four that I talked about,
that company that had no business. It was just a holding
company, had no operations. He decided that he was going to
get a loan.
He opens up a bank account just for this in October.
When they ask him to prove that it has some operations, he
deposits 60,000 from Alafaya Trails. And as soon as he pops
out that bank statement to deliver it to the SBA, the bank
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Miami, Florida 33128
statement showing that there's $60,000 in there, then he pops
the money back out, back to Alafaya. Because it was only to
make a pretense -- to make a pretense that it had some
operations.
Made all kinds of false claims about what that company
had. But now the SBA is asking, and the SBA asks for more.
And what he submits at this point -- that's where he submits a
false lease. Because HM Four -- HM Four, I told you, it had no
operations. It didn't have tenants. It was Alafaya that had
the tenants. So he creates a false lease and he forges the
name.
So this is where -- and I just will show it to you.
You see the name? HM Four.
Here we go. There's the "Four." I just blocked it.
And there's the forged signature. There is also, right
there -- a little higher -- the name. You see how it says
"Majes," M-A-J-E-S? That's not the guy's name. He even
misspells it. That's without the consent of this tenant
because he has to make that false representation.
I'm going to give you more examples of things that he
submits with that application where he's trying to get an
Economic Injury Disaster Loan for a company that has no
operations.
Remember I told you about the bank account that was
opened up only for this? That banker's letter saying that they
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Miami, Florida 33128
had this account, completely forged without the consent of
Heimdal Barrios. Heimdal Barrios will come to testify that his
identity was taken without his consent.
But the Defendant doesn't stop there. When he goes
back to the lenders for the Paycheck Protection Program, at
this point, he also is sending in false tax returns and forged.
He takes his accountant's name without the permission -- the
accountant's -- you know, the accounting firm has like a tax ID
number, a special number for what they do, a preparer number,
all these things. He uses it without the consent of the
accountant and sends it in.
Now, what he's doing in these later loans is that
there was the possibility for a second round. So he goes to
PayPal, which is the one processing for the first loan, and he
tries to get the second round from that lender. They wind up
denying it. Part of the reason they deny it is because he
actually had -- the one true item that he had on the form was
his industry code that he had taken from the true tax return,
and it was not the type of industry code -- it was like a
passive business landlord, so he changes it.
So now -- there's several things -- there's several
false tax returns in this case, several forgeries, but I'm just
going to show you one. So here's Alafaya Trails's false tax
return for 2020. He goes to the trouble of -- let's see if I
can get this right.
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Miami, Florida 33128
There we go.
He goes to the trouble of forging his accountant's
signature. But in addition to taking the identity of his
accountant without his consent -- see if I can zoom in -- look
at this. You see right here? Let's see if I can point
correctly.
There we go.
The 815,000 of wages for Alafaya Trails: False. If
you look at the true tax return that was prepared by the
accountant, not there. No. It's zero. Blank line.
And you see this number up here? That number is also
false. That's -- the reason that's there is because one of the
ways of showing that you needed that second round of funding
was to show that you had a reduction, like things went a little
worse for you in 2020 than in 2021, than -- I'm sorry -- than
in the year before, in 2019. So he had to lower that number.
When you look at the true number, he actually did better in
2020 than in 2019, not like the false number that you see
there.
So one thing that you want to know is that every
single cent of this money was deposited by the Defendant,
again, close to $900,000 -- every single cent was deposited
into accounts -- in bank accounts.
MS. WEINTRAUB: Excuse me, Ms. Martinez. Judge, I'd
like to reserve an objection.
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Miami, Florida 33128
THE COURT: All right. Certainly.
MS. MARTINEZ: Every single cent was deposited into
accounts that he was the sole signer. You know, you go to a
bank account, you sign -- the signer is the person -- not like
combined signer, not someone else, not part of the time. He is
the sole person. So one hundred percent of this money is
controlled by him to benefit him.
And we do look at what he does with it. What he does
with it includes paying for his home mortgage. $11,000 a month
of a mortgage adds up to about 162,000 during this time period.
In addition, pays American Express cards, including the -- and
other cards, Discover, including the American Express cards of
his wife, his son, including things like $5,000 at a jewelry
store in New York. This is how the money comes in.
He also uses some of the money to pay back a personal
business loan that he had taken during this time, sort of using
the program that was intended to benefit people who were hurt
or who needed to retain employees to pay off some of the
business debts that he had gotten at the regular rates that you
could get -- that you could get a business loan.
In addition, he used it to pay for the cars, like a --
that they had, and a variety of other things, other expenses.
One thing that you want to know is that he mixed the
money together. He mixed the money that was -- the proceeds of
the fraud with legitimate money. And one thing that you want
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to know is that he didn't need this money. There's other
accounts that you will see that in addition to the PPP and
Economic Injury, EIDL, money, he was also depositing large
amounts of rents in another account at the same time.
The Defendant did not commit this crime because he
needed money. He did not commit this crime to make money. He
committed this crime because he wanted more money, and he
wanted more money at really, really good rates.
Thank you for your attention.
THE COURT: Thank you, Ms. Martinez.
On behalf of the Defendant? Do you wish to make an
opening statement?
MS. WEINTRAUB: Yes, Your Honor, I do.
May it please the Court, co-counsel, Mr. Sheppard,
Mr. Sheppard's family.
The most important thing, Ladies and Gentlemen, that
you need to remember, and you will hear about in this case over
and over, is that Eric Sheppard used every penny that his
company was given for the right reasons. Every penny went to
workers, went to supplies, went to materials that were used for
a project, just as it was applied for. That's what the money
was intended for, that's where the money went, and that's what
the money was used for.
Eric Sheppard was able to keep people employed when
COVID-19 hit. When others were being let go and shutting down,
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Eric Sheppard was able to give people paychecks that they could
go home to and buy food, groceries, for their families. Let me
repeat that. Every penny that Eric Sheppard's company received
from the government went where it was supposed to go. It went
to pay workers. It went to pay supplies. It went where it was
supposed to go. There are no Lamborghinis in this case. There
are no Rolex watches. There's no fancy stuff that was bought
by Eric Sheppard after his company got the money. No trips.
The money went to workers for supplies and materials just like
it was supposed to.
And that was the entire goal by the SBA of what the
money was supposed to be used for, for the PPP and the EIDL,
keeping people employed. Because by the end of March there
were 10 million people in the United States alone in one month
that were unemployed. Eric Sheppard created jobs and he paid
the workers.
So you might be scrunching your head and said: "Boy,
didn't I listen to almost an hour of Ms. Martinez telling me
how Eric Dean Sheppard committed all this fraud and how he
spent hundreds of thousands of dollars on stuff?" You will see
yourselves the bank records. You will see yourselves the
paychecks. You will be able to see and hear from experts, and
summaries, and witnesses, and charts to make it easy for you to
understand exactly where the money came in and where the money
went out.
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The Government has also charged our client with a
crime that's called aggravated identity theft. Each count of
the Indictment of which he is charged is a specific individual
crime. So it's important that we focus on every single count
because each count has different consequences, and you will
hear the evidence of why he's not guilty of each of them
shortly.
But before we talk about the specific facts of the
case, we need to time travel. And I know that sounds silly,
but sitting here in this comfortable sterile courtroom we're a
little complacent. We're complacent and we forget what it was
like in March 2020, when schools shut down and they were
virtually online, when these very courtrooms were shut down. I
remember the very first time I felt I was in a suit and able to
come back to court after over a year.
We forget sitting here now, but we have to go back.
It was horrible. It was a time that none of us could have ever
imagined, where going to a grocery store after a month we were
putting on gloves. We were washing down food. Everything that
came from Amazon or wherever we were ordering from had to be
washed, take off your clothes before you go in the house, take
a shower. Everybody was afraid. We were all in this together.
For most of us, our daily lives changed with new
schedules. Parents became teachers again. There was no day
care, but there were jobs remotely if you could. But that was
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only true if you had a job where you could do your job remotely
sitting behind a desk. It wasn't true for people like Uber
drivers, or taxi drivers, or restaurant workers. They couldn't
do their jobs remotely. They couldn't sit on a computer. And
you will hear that Eric's wife, Jennifer, did not work outside
the home at the time. You will hear that she was the parent
that was tasked with supervising the children's schooling. At
the time, the kids were in eighth and eleventh grades,
respectively.
Like so many others, Eric Sheppard's business -- his
office was in flux. His workers didn't want to come to the
office. Heck, I don't think Eric wanted to come to the office.
It was a scary time, and that's what we have to remember. If
there's one word that this case is about, it's context, and we
must remember the context within which the activity charged
occurred.
Eric Sheppard was trying to keep his business afloat.
He was trying to keep his family together. And especially
because he's in the construction business -- I mean, you can't
do construction from home. Shopping centers and malls,
Mr. Sheppard's business, can't get done from your living room
couch. You have to be there, you have to be present, you have
to be at the site and you have to be working.
Now, you will hear from witnesses in this case that
have known Eric Sheppard for 20 years or more. You will hear
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that by this time in his career when COVID broke out he was
used to an assistant being outside his door yelling, or maybe
raising your voice a little, and barking out orders, getting
what he wanted: "Give me this. Give me that. I need to see
that. Do we have this? Could you send this to me again?"
But working remotely didn't give rise to that.
Working remotely didn't align well with having to read
carefully emails that were really long on a computer screen,
especially if you're not a youngster. No offense, Eric. But
it was a difficult time for most people because we were
adjusting to a new way of life, a new way of doing business.
You will hear from people that know Mr. Sheppard, have
worked with him for over 20 years. And these people will tell
you he's driven, he is a go-getter, he has 10 balls in the air
at one time, he doesn't sit still, and he doesn't sit without
anything to do.
Like so many in the country, though, when this first
happened in March 2020, he was scrambling. He wanted to keep
his business going. He had to cope with some personal health
issues. But in order to understand what was going on, we have
to remember when this was happening, COVID, the pandemic, not
today.
When COVID hit, Eric Sheppard had been in business
over 20 years. Let me state three important things that you
will hear during the course of this trial. One, Eric Sheppard
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didn't create any business or create any new business account.
These business accounts were valid. He didn't create a fake
business to get a loan. They were all in business. Number
two, he used every penny to pay the workers to pay for supplies
to pay for materials. He was paying people to do their jobs.
And three, you will see the evidence that just when they told
him he had to start paying it back, the loans had been started
to be paying back. That is the intent of Eric Sheppard.
So let's turn to: Who is Eric Sheppard? How did he
get into a courtroom? You've heard Eric Sheppard described as
a successful real estate business developer, but it wasn't
always that way. Eric is completely self-made. Eric was not
handed anything. Eric did not have a silver spoon by any
means. Eric came up on his own. He was 17 years old. He grew
up in Miami, went to Beach High, went off to FSU, worked in a
taco place at the local mall to support himself. He worked in
the other food court there as well.
Eric was 17, on his own, graduates college eventually
from FSU, and he knows that he wants to be in real estate. And
he was lucky enough to get an apprenticeship with a very, very
sophisticated real estate developer. And Eric soaked up all
the information he could from this man, and he was on his own.
Several years later, he met Phil Wolman. Who is that?
He, Phil Wolman, was the owner of a national eyeglass store
that I'm sure some of you have heard of, called For Eyes.
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They're all over the country. He saw the potential in Eric
Sheppard. Mr. Wolman knew that Eric Sheppard had the eye, he
had the vision, and he was quick. He knew how he could get
things done. And Mr. Wolman thought that was terrific, and
they became partners. Partners because Eric Sheppard learned
quickly, and he worked hard.
He could envision developing land that his competitors
passed on. He knew how to get projects built, not just with a
GC, general contractor. He knew what had to get done. He knew
what studs had to be ordered. He knew what tiles for the
floor. He knew where to go. He knew how to get permits. He
knew what had to be inspected. Eric knew how to build
something.
But because Eric's doing 25 things at once, like any
CEO, of course, he relies on others to do things for him. He
couldn't literally do everything himself. No, he's not in back
keeping his financial books. He signs the checks, and he knows
what's going on, but he doesn't know every penny. He doesn't
do things like deal with a disgruntled person, or HR, or a
tenant or -- Eric doesn't do that. He does have a staff that
does that.
Eric Sheppard learned how to deal with banks because
he's a real estate developer. He needed loans. This didn't
just happen from COVID. In 2009 -- 2009 -- Eric saw an amazing
property, 44 acres. Forty-four acres. It was right near the
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UCF campus, and it is off of a street called Alafaya Trails.
And Eric had a vision. He had a vision in this swampland of
his gorgeous shopping center that he wanted to build. He did
build it.
You will hear that Eric does have several different
companies, and they have different functions, and you will hear
how they got formed. You will hear that lawyers and
accountants and other professionals advise people in real
estate every project has a different company. Why? It's to
insulate liability, number one. It's as old as time. You
don't want to have a problem with everything; you want to limit
your liability, and for tax reasons.
It is common to have many different companies. And
only somebody who doesn't know that would say that certain
businesses were just created. But you will see and hear how
these businesses were formed, when they were formed, and what
their functions are. He did not create companies to get loans.
He had real companies that did real business.
In 2016, Eric Sheppard applied for and qualified for a
$22 million loan. Banks don't hand those out. That wasn't
part of this deal that we're talking about. That was done with
a stack full of correct paperwork, done by a staff, by
gathering the proper documents to submit to the bank. Eric was
used to dealing with people at the bank. He was used to if
there was a question, they asked him a question, he gives them
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an answer. The mortgage on the property, $90,000 a month.
That's a lot of money. And he was able to do it because of his
vision.
Since 2016, every single month, Eric has been paying
that loan back. It was refinanced very recently, but it's
still around the same amount of money. It's a little more.
The Government wants you to think that this case is all about
three or four documents, and a couple of signatures, and fraud
this and fraud that. Well, they're wrong. They're wrong. The
Government got it wrong. That's not what this case is about.
It's not just about documents and how many each side has. This
is a case about a person. This is a case about Eric Sheppard
and his whole family, actually.
One year before COVID, the Alafaya Trails shopping
center was up and doing great. There were major national
tenants, which is what he's used to in his shopping centers
that were at the shopping center, DICK'S Sporting Goods, Toys
'R Us, just to name a couple. Unfortunately, Toys 'R Us, as
most of us know, went out of business and went bankrupt.
Actually, it was the other way around. They went bankrupt and
then they went out of business, and then that store closed in
2019.
Well, that store closing was 60,000 square feet.
Sixty thousand square feet. To give you an idea how big that
is, it's the size of a football field. That is a huge
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property. It's all called an anchor store. Why? Because it
would attract people. It was one of the main stores. It would
attract people to come there that otherwise would not have.
And while they're there, they'll go next door to the little
boutique or another place to eat that wasn't so famous. It's
an attraction, but it's also a huge hole now without a tenant,
60,000 square feet.
So Eric spent a couple of months and he finds and
successfully negotiates with Burlington Coat Factory to take
the space. And not only that, they're going to take the whole
thing, all 60,000 square feet. Eric is thrilled, the company's
going to keep going, everything's great.
As is typical in real estate contracts, there was a
penalty clause. If it's not delivered on time, you're going to
be penalized and penalized big. Well, there was a rush on
this. The contract's reached in January of 2020. No problem.
They wanted it delivered in May 2020. Okay. It's going to be
tough, but we'll get it done. Because even though it was a
crunch, he wanted to get it done.
Burlington was in a crunch because they were about to
lose their lease at a store nearby. They wanted continuity for
the people that were used to finding the Burlington store right
near UCF. So they went very rigid, and they wanted it
May 20th.
Now, under normal circumstances it would be tough to
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do. But these were not normal circumstances, Ladies and
Gentlemen. The world changed. In March 2020, COVID hits, the
work stops. Now what is he going to do? Because he couldn't
get a grace period because of COVID. He couldn't get released
from those penalties because of COVID. Eric Sheppard was
legally obliged. He had to get this property built out on time
or he would have gone under. The penalties were going to be
insane. As it was, he paid over a million dollars.
Now, let's talk about the loans that are charged here.
Three of the loans were approved. One of them wasn't.
Remember, we were waking up to news conferences, the governors
every day, Congress is enacting the CARES Act. One thing
that's consistent, nobody knew what was coming next. We were
all scared. We're all wearing masks. We didn't want to be
near anybody else. Eric Sheppard's office shut down, and that
is the backdrop of when these loans are submitted.
At the beginning of COVID, there Eric is -- and as
many of you might have gotten, there are a million pop-ups that
start coming on the computers. People are offering --
third-party vendors are offering loans, government loans. The
loans being offered say: "You might not even have to pay it
back. We'll give you forgiveness."
Now, under the CARES Act, the Small Business
Administration, the SBA, offered the opportunities for small
businesses under 400 employees, which Eric was, to get a PPP
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loan, the Paycheck Protection Plan loan. They also already had
the EIDL loan in progress. The government did its best to rush
these loans out because we were in a hurry. We needed money.
People were shut down. People were not able to work. You
figured that you could call somebody when you apply for a loan,
ask for help, just like you did with big other bank loans. But
nobody was answering the phones, nobody was answering emails.
And when they did answer, they didn't even have the answer.
Let's talk about what happened in this perfect storm
of applications. First of all, the application isn't an
application, in my opinion. The application is a piece of
paper or a form that you fill out or even type out on the
computer and then submit. No. That's not what these were.
You had to go on a computer portal that they sent you a link
to, and each question -- you were asked a question, you popped
the answer. And not until it's all done and submitted, then
you get to see the whole application. This is not normal
times.
Now, the Government made a big deal and says that
these loans were only for W-2 employees. When you see the
applications in this case, Ladies and Gentlemen, ask
yourselves: Where does it say that? Gee, the lawyer said it's
not there. Looked everywhere. It's not in the application:
"Don't apply if you're a W-2." It's not in the application:
"If you have 1099 independent contractors doing construction
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work, don't bother applying." Doesn't say that.
Most people just fill out an application, wait to see
if it's granted or denied, and they go forward. But language
on the application that you will see says the following, I
quote: "Employees for whom you pay salaries or independent
contractors whom you pay via 1099." It's right on the
application. So why did Eric think something's going on that's
wrong? Why would Eric think something's wrong when nobody's
telling him not to do it? The accountant's not telling him not
to do it. Lawyers aren't saying not to do it. He's getting
these offers on pop-ups.
Like most small business owners, Eric looks at all of
the workers as employees, period. He wrote on the paycheck for
years -- not just for COVID, for years: "Paycheck. Payroll."
That's what it is. He's paying people.
You will hear and see during the trial who these
third-party vendors are. Third-party vendors like PayPal -- so
they give you a pop-up, and they tell you all the wonderful
things they're going to do. And you wonder: Hmm. Why were
they doing that? Why? Because they had a financial incentive.
Every loan that these lenders gave out they got money for. So
that's why.
Let's look at the loans that you're going to hear
about. The first one is not charged, as the Government said --
MS. MARTINEZ: Objection, Your Honor.
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MS. WEINTRAUB: -- but it was in April of 2020.
MS. MARTINEZ: An entire scheme is charged.
THE COURT: Is that an objection, Ms. Martinez?
MS. MARTINEZ: It's misstating what the charges are.
THE COURT: It's what the Defendant is stating that
the evidence will show. Overruled.
MS. WEINTRAUB: April 2020, PayPal solicits Eric
Sheppard on his email to apply for a loan. Eric is under
incredible stress to get Burlington Factory built. The
problem, he needed workers. Most of the workers that were
working on the project in January and February worked for
what's called a subcontractor, like an electrical company. And
that electrical company had 50 electricians, say. Well, they
all shut down and took the workers and left. They left. He's
got this big, huge project to get done.
He tells his project manager up in Orlando: "Get back
whoever you can. Find workers that are licensed and qualified
to do the job. We need to get this done." And that's what
happened. He needed electricians. He needed air-conditioning
people. He needed floor people. I mean, just two, three
blocks away the Port of Miami was closed. We all know that the
supply chains were broken. Everything was different back then.
Eric told his project manager: "Hire whoever you can
that's qualified," and that's what the loan money went to.
That's what the loans were for. The loans were created to keep
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small businesses working, so small businesses did not go under
and people were able to get paychecks.
Yes, the Government is right that he put in his own
money. The project was about $3 million to build Burlington,
and he got $450,000 worth of loans, and the rest of it he had
to come up with. That's not a crime, Ladies and Gentlemen.
In April 2020, there was a formula in order to get the
loan. You had to fill out -- you had to figure out what the
payroll was, you had to multiply it by two and a half times --
I'm not good at math, but there was a formula. So what did he
do? Mr. Sheppard calls his longtime bookkeeper, Jeanette
Gonzalez, and says: "Send me the numbers. I need the numbers,
numbers to fill out applications." Obviously, he wasn't doing
his own books. He relied on other people. There's nothing
wrong with that. That's everyday business.
Now, in 2020, he fills out the application and then he
realizes after: "Oh, my god. Something's wrong. I made a
mistake. So I'll just call." Well, that was a joke. "I'll
write. I will type in -- I'll get back on the portal." He's
locked out of the portal. He can't get in. So he writes to
PayPal: "I have to add or change my application but the portal
won't let me in."
On April 27th, Salesforce acknowledges that he's
trying to send more information, and they blocked it because
they said: "There's already an application pending with your
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email address," like, "good-bye," click.
Really? Now I'm talking to automated people? His
attempts to make the corrections were ignored. The banks
didn't read what he was writing. He was trying. But you know,
one of the other problems is banks weren't operating normally,
lenders weren't operating normally, nobody was operating
normally. The SBA wasn't operating normally. They had to hire
thousands of temporary workers. They did, but of course they
didn't have the training and didn't know the answers.
So Eric Sheppard is left with trying to make these
corrections. And what do you think happens? On May 1st,
without anybody caring about the mistakes, the loan was funded.
There is no dispute that Eric Sheppard tried to make the
corrections. The point is nobody was on the other end when
he's saying: "Wait a minute."
And that brings us to the first charged loan in
November 2020. It was an EIDL loan, and it was filled out for
Eric Sheppard's company that he owns with his wife, HM Four.
Now, first the Government charges him with fraud because they
say that he's acting like his wife when the loans were applied
for. Of course, the Government should have known that it was
owned with his wife. It wasn't new. And if they had done the
slightest bit of investigation, they would have realized that.
Eric Sheppard's wife completely consented and agreed
to Eric Sheppard responding to her email. As a matter of fact,
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she asked him to. That's her husband of 22 years. It's a
pretty normal conversation. She gives him permission to reply
to the emails, and the Government makes it sound like Eric
Sheppard is impersonating his wife. Not true at all.
Mr. Sheppard was a legitimate owner of the company. She's not
the businessperson. Eric is. And Eric writing as his wife
with her knowledge and approval is not a crime.
Next, the Government claims that you're going to see
fraudulent documents that were submitted for the loan. The
Government claims that Eric Sheppard forged these documents.
Ask yourselves as you're seeing and hearing the evidence:
Where is that? Because it's not in there. There is absolutely
going to be no evidence, Ladies and Gentlemen, that Eric
Sheppard forged any documents.
On November 24th, the loan was funded for $150,000.
Now, one of the Government's theories, which is incorrect, is
that HM Four is what's called a passive company, meaning it
doesn't have real business. That's not true. It's a real
company that has real business, that has real obligations, and
it's been in business for years. This was not a company that
was created to get a loan.
Now, another thing that's not on the application. But
just for argument's sake, the EIDL guidance simply said you had
to be a small business under 400 employees that suffered a loss
as a result of COVID. Well, as a result of COVID, every single
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Miami, Florida 33128
worker walked off his job. As a result of COVID, he was going
to have to go under and go bankrupt because he wouldn't be able
to finish this job, and these penalties were crazy. But HM
Four was just that. And there's nothing -- it was a real
business. But more importantly, you'll see it had real
obligations. Nobody said it didn't, except the Government, and
the Government is wrong.
The second loan was January 19th, 2021. Eric's
company HM-UP applies for what is now called a second draw PPP
loan from PayPal. And it was denied for reasons that just
aren't important for the moment. But, unfortunately, what was
important at the time was that Eric started to feel not well.
January, he's not doing well. He's not feeling well. He's
tired. And Eric is like the Energizer Bunny, which I was
trying to describe, with 10 balls up in the air always at the
same time. Finally, his wife persuaded him to go to a doctor,
and he was diagnosed with cancer.
Now, the problem, aside from having cancer, was -- and
I know he doesn't want me to say this, but I'm going to say it
anyway -- is that he also had COVID. Now, I don't know --
again, context. We have to pull ourselves back. We all should
remember the horrible pictures of people on ventilators and
what's going on in the hospitals at this time. It was truly
horrifying. Eric can't have the surgery until February 2021.
February 2021 he was trying to get another PPP loan.
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There is nothing wrong -- did I say this? There's nothing
wrong with getting more than one loan at the same time for a
different company. There was nothing wrong with having two
companies. There was nothing wrong with having six companies
for different things. Successful businessmen had that. But
what was going on was he didn't feel well, and he's still
trying to juggle and keep his family afloat, and he's still
trying to juggle and keep the job going. Because one thing
you'll hear about Eric Sheppard is that he never not finished a
project. He has always finished a project he started.
By this time, when Eric was applying for the PPP loan
in the second round, and he's recovering from the surgery, and
before he has the radiation and feels worse, he just says: "I
can't handle this anymore. I've just got to give this up. I
just need to go back to pre-COVID and rely on people that are
working for me." And people that are working for him are
saying: "We got you. We're entitled to this money. We'll get
the money. We'll take care of the loan. We got you. You'll
get the money. We'll finish the project. It will all be
okay."
And as you will see and hear from witnesses, from the
evidence, Eric Sheppard never had any intent to defraud the
government, and the Government will not be able to prove
otherwise.
Eric Sheppard is charged with wire fraud and
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400 North Miami Avenue, 10-2
Miami, Florida 33128
aggravated identity theft. And I know it's long, and I know
it's 4:30, and it's late, and we're tired, but Eric's freedom
is at stake. Eric's livelihood is at stake. And I can't cut
it short for anything.
Eric is charged with nine counts of wire fraud. And
Her Honor Judge Bloom will give you the law. But just in one
sentence is a very oversimplified explanation and what to
listen for with the law is that the Government charges a scheme
to defraud, meaning he intended to cheat or deceive someone out
of money or property. During the case, you will hear, Ladies
and Gentlemen, there is absolutely no financial harm to anybody
in this case period, period. This is a case about a potential
maybe harm to an SBA policy. That's right, to a policy. He
didn't break a law.
The Government charges that Eric committed fraud on
the loan application, where he said he had employees because
they were 1099 employees, instead of W-2. Are you kidding?
It's not on the application. Nobody lost any money. The
Government got it wrong.
Eric Sheppard didn't commit wire fraud. Wire fraud
would be intentionally defrauding someone, or trying to, and
then sending it over the Internet, for example. But remember
all of the money went to pay Eric Sheppard's workers and for
supplies and materials, and he's been paying back the loan like
he's supposed to. That's what his intent was.
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Miami, Florida 33128
And aggravated identity theft? Very simply, what does
it mean? Well, identity theft means stealing somebody's
identification. It's kind of like if somebody was to take my
identification and then go to the store and buy a new car or
whatever, and they stole my ID and they bought something.
That's not what happened. For purposes of aggravated identity
theft, it means that someone used someone else's identity to
commit a crime and that identity theft was part of the fraud.
So what does that mean? It means that some of the
loans in this case that were applied for needed supporting
documentation, and the different lenders wanted different
support. They didn't all want the same thing and they weren't
all mandatory. The Government claims that Eric signed his
accountant's name to some of the business tax returns that were
submitted for loans. First of all, Eric didn't do that. There
won't be any evidence that Eric did that. But more
importantly, these loans would have been gotten without that
signature. Why? Not everybody even uses a CPA to file your
tax returns. You don't have to. And a tax return can be
prepared by many people. It doesn't have to be the CPA. So
the fact -- whether or not that's his signature didn't affect
whether the loan was given. So it's not going to be aggravated
identity theft. You have to have both prongs. One --
MS. MARTINEZ: Your Honor, is this closing argument or
opening statement?
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Miami, Florida 33128
THE COURT: Is that an objection?
MS. MARTINEZ: Yes, Your Honor.
THE COURT: And the legal basis?
MS. MARTINEZ: The legal basis is that the --
THE COURT: The legal basis would be?
MS. MARTINEZ: -- the lawyer is arguing the law.
THE COURT: The objection is sustained.
MS. WEINTRAUB: Both of the charges on the aggravated
identity theft that come after that on the EIDL loan -- the
forgery that the Government showed here as a forgery, is from
one of the tenants at Mattress1One at the shopping center.
Now, first of all, what the Government didn't tell
you, you will see evidence that Mattress1One stopped paying
rent and needed a new lease. But also what wasn't there when
the Government put up that lease here is, again, the SBA wrote
back -- this lease was supposedly submitted -- and said: "We
don't need this. What are you submitting this for?" It's not
the crux of anything. It's not the key to any room. And the
Government even put it up there.
They mentioned a banker that there was a forgery for.
She wanted you to see a forgery and now doesn't want me to tell
you that --
MS. MARTINEZ: Objection to what the United States --
MS. WEINTRAUB: -- the evidence will show -- excuse
me, Judge --
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400 North Miami Avenue, 10-2
Miami, Florida 33128
THE COURT: The objection is overruled. You may
continue.
MS. WEINTRAUB: -- that the evidence will show you
that banker did write the letter.
There's one last topic that I need to mention, and
that's called commingling. Because the Government brought it
up and said that he was mixing accounts and mixing money. This
is the evidence that will come in. The government required an
operating account for these loans. The loans came in to one
account. And that's right, his AmEx was paid from it, personal
expenses were paid from it, his car was paid from it.
What the Government didn't mention in its opening is
you will see the bank records that there was $2 million more
than required to be in that account. All of the money being in
one account did not matter. It was not a violation of law at
all. And expert witnesses are going to come and explain it a
lot better than me.
But it's kind of like if I have two bank accounts, for
example, and you deposit -- if I deposited money in one bank
account because I got a tax refund, and then I get -- my health
insurance gives me a refund, and I put that in, and I go to
spend money. And by spending that same dollar, is it traced?
Does it have the serial number? I mean, the Government wants
you to think that money isn't fungible. That's not true.
Money is fungible.
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Miami, Florida 33128
If there's more money there, and you took money out,
there was no problem. The accountants always separated
personal from business. And you'll see the evidence and hear
from the accountants. But money is money. And when it gets
deposited in one account and it's mixed together, that's not a
crime. And the Government knows where the money went.
Two things to keep in mind: All of the money went to
pay the workers and the materials. Eric doesn't go out and buy
a boat or a yacht. He paid tuition before the loans. He was
paying tuition after he got the loan money. He paid his
American Express before. He paid it after. That is not a
fraud. That is not a scheme to defraud. The monies that were
paid before were paid after.
In conclusion, Ladies and Gentlemen, COVID hit us like
nothing ever before. None of us could have been prepared for
what happened in '21 and '20. Eric had been coping with the
cancer treatment and trying to come out of the pandemic, trying
to salvage his business to make this deal to get Burlington
built. And as schools reopened, and the courtrooms thankfully
reopened, as jurors came back, we all took a pause. But
context is how this case has to be viewed. This case is very
complex, but it's not a neat stack of documents tied in a bow.
This case is about a man, it is about his whole family, and it
is about what happened.
And if I might have one moment, Your Honor.
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Miami, Florida 33128
THE COURT: All right.
(Pause in proceedings.)
MS. WEINTRAUB: Ladies and Gentlemen, after you hear
all of the evidence in this case, you too will know the truth
and you too will be able to put on your verdict Eric Sheppard
is not guilty of wire fraud and he is not guilty of aggravated
identity theft.
Thank you for your attention.
THE COURT: Thank you, Ms. Weintraub.
Ladies and Gentlemen, we're going to take a 10-minute
recess.
COURT SECURITY OFFICER: All rise.
(Jury not present, 4:40 p.m.)
THE COURT: Ms. Jimenez, how much time do we need for
your first witness?
MS. JIMENEZ: Your Honor, I would need half an hour.
I don't know that I -- that we want to start.
THE COURT: And we need to get this witness on and off
today?
MS. JIMENEZ: No. She's local.
THE COURT: All right.
All right. So let's see how far we go. And Liz,
maybe we could see how long the jurors are able to stay today,
if we can get this witness on and off.
All right. I'll see you back here in 10 minutes.
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Miami, Florida 33128
MR. ETRA: Your Honor, I do have fairly substantial
cross-examination.
THE COURT: How long do you anticipate your
cross-examination to be?
MR. ETRA: I would think at least an hour, if not
longer.
THE COURT: Oh, all right. Then let's see how far we
get. And at the logical time, Ms. Jimenez, you'll let us know
and we'll break for the evening.
Okay. I'll see you back here in 10 minutes.
(Recess from 4:41 p.m. to 4:50 p.m.)
THE COURT: Back on the record.
Let me acknowledge the presence of the Defendant.
Do we need to wait for Ms. Martinez to address one
item?
MS. WEINTRAUB: I didn't hear what she said.
UNIDENTIFIED SPEAKER: She went to the restroom, Your
Honor.
THE COURT: I just want to advise -- because I
understand that, Ms. Jimenez, you will be directing this
witness -- that the jury does need to leave at five. Liz did
inquire, and we'll need to be respectful of their schedule.
MS. JIMENEZ: Are we going to do 10 minutes?
THE COURT: We're going to do 10 minutes. I'm just
waiting for Ms. Martinez.
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MS. JIMENEZ: I would like to invoke the Rule. If
there's anyone that is going to be a witness in this case, we
would like them to step out of the courtroom.
THE COURT: All right. And this is throughout the
trial?
MS. JIMENEZ: Yes.
THE COURT: All right. A rule has been invoked that
requires that the witnesses remain outside until their names
are called to testify. They are not to discuss their
anticipated testimony, the testimony of any individual, or any
aspect of the case.
Since the Court is not familiar with the witnesses, I
would ask the attorneys to be mindful and advise your
respective witnesses to remain outside.
Okay. Both sides ready to proceed?
MR. ETRA: Your Honor, our expert witness is here. Is
the expert allowed --
THE COURT: Well, that would -- obviously that excepts
the expert. The expert witness is permitted to remain in the
courtroom.
MS. MARTINEZ: Your Honor, I have a concern with that
because we haven't finalized the expert disclosure.
THE COURT: Is this Mr. Bouchner, the one that we
talked about?
MR. ETRA: The one and only.
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Miami, Florida 33128
MS. MARTINEZ: Yes.
THE COURT: Okay. The expert is entitled to remain in
the courtroom.
Let's bring in the jury.
COURT SECURITY OFFICER: All rise for the jury.
(Before the Jury, 4:51 p.m.)
THE COURT: All right. Welcome back, Ladies and
Gentlemen.
Please be seated.
And if the Government will call its first witness.
MS. JIMENEZ: Yes, Your Honor.
The Government calls Althea Harris.
(Pause in proceedings.)
THE COURT: All right. Good evening.
If you'll come forward.
ALTHEA HARRIS, GOVERNMENT WITNESS, SWORN
COURTROOM DEPUTY: Thank you.
You can have a seat.
Could you please state your name and also spell it for
the record.
THE WITNESS: Sure.
Althea Harris. A-L-T, like Tom, H-E-A. Harris, H-A,
double R, I-S, like Sam.
MS. JIMENEZ: Thank you.
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400 North Miami Avenue, 10-2
Miami, Florida 33128
DIRECT EXAMINATION
BY MS. JIMENEZ:
Q.
Good afternoon, Ms. Harris. Where do you work?
A.
I work for the US Small Business Administration Office at
South Florida.
Q.
How long have you worked for the SBA?
A.
Twenty-three great years.
Q.
What is your current position with the SBA?
A.
I'm the deputy district director.
Q.
What are your responsibilities in that role?
A.
I manage the staff and I help propel our mission throughout
our 24 counties in South Florida.
Q.
And generally, over the years, and focusing on the most
recent years of your experience there, what sorts of
responsibilities have you had?
A.
Well, in 23 years I've done almost everything in the
office. But primarily, at the district level, we tell the
public who we are, what we do, and how we help them start,
grow, and succeed in business. We talk about our programs and
services, as I mentioned, in the 24 opportunity counties south
of Orlando.
Q.
All right. Are you familiar with the CARES Act passed by
Congress in March of 2020?
A.
Yes.
Q.
Are you familiar with the Paycheck Protection Program?
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A.
Yes.
Q.
Was that a program that was funded under the CARES Act?
A.
Yes. The Congress appropriated money for the Paycheck
Protection Program, and charged SBA and the Treasury with
getting that money out to the small businesses across the
country.
Q.
And generally, what was the Paycheck Protection Program?
A.
The Paycheck Protection Program was, again, a creation of
the CARES Act in Congress. And through the framework that
already exists at SBA to get money to small businesses -- the
Paycheck Protection Program used that framework, which includes
the lenders, to get money to business owners to help them pay
their employees who during the pandemic couldn't go to work.
Right? Because everything was pretty much shut down. So it
was a way to give business owners money that they could pass on
to their employees so they could pay their rent, or buy food,
just to conduct their -- to help them with their everyday
lives.
Q.
Very generally, how did the Paycheck Protection Program
work?
A.
Basically, a business owner would make application online
to the financial institution of their choice and give that
application, along with supporting documentation, to that
financial institution. The institution would review those
documents, ask SBA for a loan number. We would give it to
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them. Then the lender would dispense the money to the
applicant borrower.
Q.
When you say the lender would ask SBA for a loan number,
what does that mean? Did the SBA have to approve it?
A.
What that means is when SBA gives a loan number to a
financial institution, we are saying that we will guarantee
repayment of the loan proceeds in the event the borrower
doesn't pay back the loan.
Q.
What was the role of the SBA in connection with the
Paycheck Protection Program, in addition to providing the
guarantee?
A.
Well, SBA worked with Treasury to promote the rules of the
program, essentially created the PPP program. And again, it
worked along the framework that we already have to help small
business owners get funding for their businesses. We promoted
the Paycheck Protection Program with the public.
Q.
It created the rules --
A.
Yes.
Q.
-- for the lenders to follow; is that correct?
A.
Yes. The United States Treasury and SBA worked together on
those loans -- I mean rules. Sorry.
Q.
Now, what was the role of the private banks with respect to
those loans?
A.
Well, the banks received those applications, scrutinized
them, and ultimately either made those loans or didn't.
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Q.
Would an applicant business need to have collateral for a
Paycheck Protection Program loan?
A.
No.
Q.
And generally what is collateral in the context of a loan?
A.
Collateral is -- the way I describe it is what happens if
the loan goes bad. Right? What can we take from you, turn
into cash, and pay back the lender. So a lot of times real
estate is collateral, or a piece of equipment, or a car, your
retirement account, something that you put up that says: "I'm
willing to risk this if I don't pay back the loan."
Q.
And so no collateral was needed for this type of loan,
correct?
A.
That's correct.
Q.
Were the PPP loans forgivable loans?
A.
Yes. One hundred percent forgivable if the borrower used
the loan proceeds according to the rules of the program.
Q.
And how would the lender be made whole if the borrower
could simply not pay it back?
A.
Well, that's what SBA is in the marketplace to do, to
provide the guarantee to the lender. So in all cases, the SBA
endeavors to make the lender whole in the event that a borrower
doesn't repay a loan.
Q.
So the SBA would pay the money that the borrower would owe
if that loan is forgiven, right? The SBA would pay that money
to the lender, correct?
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A.
That's correct.
Q.
And where did the SBA get the money to pay off the loans on
behalf of borrowers who didn't have to pay it back?
A.
Right. So that's what the appropriation from Congress is,
which is taxpayer money would be used to pay back the bank.
Q.
Now, if the loan is not forgiven, what are the terms of a
PPP loan for paying it back?
A.
If you don't pay -- use the proceeds properly, and the
government declines to make your loan a hundred percent
forgivable, then the loan becomes payable to the lender at a
term of five years at one percent.
Q.
That's one percent interest?
A.
One percent interest, yes.
Q.
Okay. Now, with respect to your role at the district
office of the SBA, what did you do in connection with the --
administering the Paycheck Protection Program?
A.
Our role at the local level was to promote the program with
the public, helping them to know it was available, answer their
questions, do trainings so that they could access the program.
Q.
All right. Now, how could someone go about finding out
whether they qualify for a Paycheck Protection Program loan?
A.
Well, I mean, if you happened to sign on to any of the
webinars that the 68 offices of SBA across the country were
having non-stop around the clock, we also had information on
our website. They could make application with a bank, and in
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that process learn about the process. So there's lots of
information out there and available.
Q.
How would someone go about applying for a PPP loan?
A.
So if a borrower wanted a PPP loan, again, they would -- it
was an online application because, of course, everything was
closed down, so you couldn't walk into a branch and ask for a
PPP loan. So the banks stood up online portals, and you would
go into the portal of your lender of choice and make your
application that way, filling out the required form and
offering the documentation that was required to support your
application.
Q.
Now, in April of 2020, who was eligible for a PPP loan?
A.
Small businesses, sole proprietors, S corps, C corps, LLCs.
Q.
Could an independent contractor apply for a PPP loan?
A.
Yes. Independent contractors could apply for their own PPP
loans.
Q.
And you mentioned an LLC. What is an LLC?
A.
Oh. Sorry. A limited liability company.
Q.
And that's a business?
A.
It's a business type, yes.
Q.
And a business of that type could apply if that business
had what, employees?
A.
Well, in all cases the businesses had to have employees
whose paychecks they were attempting to protect. Right?
That's why it's called a Paycheck Protection Program.
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Yvette Hernandez, Official Court Reporter
400 North Miami Avenue, 10-2
Miami, Florida 33128
Q.
Now, in terms of business size, given that this was
supposed to be targeted to small businesses, was there a cap on
the number of employees a business could have?
A.
Yes. Initially, the cap was 500 employees. And I think
most times people aren't aware of exactly what "small" means to
the SBA. And so, actually, small businesses are actually very
small and quite large. Right? So 500 employees doesn't sound
like a small business. Most people think it's the nail salon,
the restaurant, the mechanic. But it can be manufacturing
companies that have 500 employees, or very sophisticated
companies that have, you know, a number of employees.
THE COURT: Ms. Jimenez, would this be a good time for
us to recess for the evening?
MS. JIMENEZ: Yes, Your Honor. That's fine.
THE COURT: All right.
All right. Ladies and Gentlemen, we will be mindful
of your time, and I understand that we are recessing for the
evening. So at this point in time we will adjourn and I will
see you back tomorrow morning promptly at nine a.m. That means
that you need to be in the jury room, ready to come into the
courtroom, right at nine a.m.
Please remember that as we adjourn for the evening
you're not to discuss this case with anyone, nor permit anyone
to speak with you. Everything learned about the case is
learned within the courtroom.
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Yvette Hernandez, Official Court Reporter
400 North Miami Avenue, 10-2
Miami, Florida 33128
Please place your juror notebooks in the jury room.
The jury room will be locked.
And have a pleasant evening. I'll see you tomorrow
morning at nine a.m.
COURT SECURITY OFFICER: All rise.
(Jury not present, 5:05 p.m.)
THE COURT: Thank you, Ms. Harris.
We are going to recess for the evening. Now, let me
advise you, since you are on the witness stand, you're not to
discuss your testimony or any aspect of the case with anyone.
I'll see you tomorrow morning right at nine a.m.
Have a pleasant evening.
All right. Go ahead and have a seat.
If I may have a list of the witnesses that the
Government anticipates it will call tomorrow, please.
MS. JIMENEZ: Yes, Your Honor.
MS. MARTINEZ: Take into account one hour of cross.
(Pause in proceedings.)
MS. JIMENEZ: Yes, Your Honor.
So we will finish up with Althea Harris from the SBA.
We have Philip Palmer from the IRS, Mr. Martin Joe Beirne,
Jammie Hutcheson from PayPal. We have Ian Zalewski from a
business entity called ACAP SME. We have David Toye from
Northeast Bank. We have a Mr. Carlos Granda.
I don't know that we will get through all of these
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400 North Miami Avenue, 10-2
Miami, Florida 33128
individuals.
THE COURT: All right, then.
Any issues with regard to any of the witnesses'
schedules?
MS. JIMENEZ: Not that I know of, aside from the
individual for Breezeline.
THE COURT: All right. But the individual for
Breezeline, does that include any of these individuals -- I
want to accommodate any out-of-district witnesses that may be
coming in to testify.
MS. JIMENEZ: We have several of these witnesses whom
I mentioned -- actually, after Mr. Palmer, everyone else who I
mentioned is from out of town.
THE COURT: All right. Then if there are one or more
that you want to accommodate and call earlier than the
schedule -- I'm not certain where they're from, but hopefully
we'll get through those witnesses.
All right. Any issues that we need to address with
regard to tomorrow's lineup?
On behalf of the Defendant?
MR. ETRA: Not with the lineup, Your Honor.
THE COURT: All right. Any issues that we need to
address before we adjourn for the evening?
MR. ETRA: Your Honor, it came up in sort of the
objection that Ms. Weintraub reserved. There's a pervading
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400 North Miami Avenue, 10-2
Miami, Florida 33128
issue here about the scope of the case, and we probably should
just talk about it, which is when this was first charged there
were six loans charged, starting with the first PPP loan in
April of '20, and then the first two EIDL loans. And then
those three got dropped in the Superseding Indictment, and then
they added an attempt.
We didn't argue that the early loans should be
completely excluded, given the case law on inextricably
intertwined, the story, and all that. Nevertheless, it's not
part of the charged conduct, and it seems to me that -- and
both sides are going to talk about these loans. I'm not making
it seem as if we're both not going to talk about it -- it seems
like some kind of limiting instruction -- and particularly, the
reason why Ms. Weintraub objected is because they were adding
up all the dollars from all the loans, including loans that
aren't charged.
And there's like a mismatch between the way the
Government is arguing and the way we're arguing it. And I just
want to make sure we have an understanding from the Court and
limiting instructions as appropriate, given that a lot of these
loans they're going to be talking about -- I mean, PayPal is
going to talk tomorrow about two loans, the one that was
successful that's not charged, and then the unsuccessful loan
that is charged.
MS. JIMENEZ: Your Honor, if I may, what is charged in
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Case 1:22-cr-20290-BB Document 307 Entered on FLSD Docket 02/25/2025 Page 228 of 231
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Yvette Hernandez, Official Court Reporter
400 North Miami Avenue, 10-2
Miami, Florida 33128
the Superseding Indictment, and similarly to some extent in the
original Indictment, is a scheme to defraud between
approximately April of 2020 through March of 2021.
And in that scheme to defraud, there are nine wire
fraud counts that are acts in execution of that scheme. I
could have charged 40 acts in execution -- 40 wire fraud acts
in execution of that scheme.
So these are certain acts that we chose to highlight.
There were a number of loans that were approved. There were a
number of loans that were denied. All of that evidence was
turned over in discovery from the very beginning of this case.
It's always been a part of the case, but I simply am not going
to burden the case with every false document. A wire doesn't
even have to be a false statement or document. But there were
many, many wires, and this is one scheme to defraud the lenders
and the SBA. So I don't know what sort of limiting instruction
would be appropriate.
THE COURT: Well, I don't know if a limiting
instruction will be helpful at this point, Mr. Etra. Why don't
we wait and see what the Government intends to introduce. And
as you've readily acknowledged, there may be other acts that
are inextricably intertwined.
So if the scope -- and I'm looking at the second
Superseding Indictment -- is from April 2020 through March of
2021, I'm not certain what the Government is going to be
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Yvette Hernandez, Official Court Reporter
400 North Miami Avenue, 10-2
Miami, Florida 33128
introducing. But at the appropriate time at the conclusion of
the trial, the Court can certainly incorporate an instruction
that may be appropriate.
MR. ETRA: Okay. Because -- fair enough, Your Honor.
We'll take it as it comes, then.
THE COURT: All right. Are there any other issues
that the Court can address to prepare the parties for tomorrow?
MS. JIMENEZ: We can't think of any, Your Honor.
MS. MARTINEZ: We are still expecting disclosure as to
the statements by eight o'clock tonight or --
THE COURT: Well, the Court's order hasn't changed.
MR. ETRA: I'm under a court order.
THE COURT: Okay. All right, then. The courtroom
will remain -- or will be open at 8:30. As I stated, the
courtroom, once you-all leave, will remain locked until 8:30
tomorrow morning. So feel free to leave your items. No one
else is going to be in here.
Have a pleasant evening. I'll see you tomorrow
morning at nine a.m.
MS. WEINTRAUB: Thank you, Judge.
MS. JIMENEZ: Thank you, Your Honor.
COURT SECURITY OFFICER: All rise.
(Proceedings adjourned at 5:11 p.m.)
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Yvette Hernandez, Official Court Reporter
400 North Miami Avenue, 10-2
Miami, Florida 33128
UNITED STATES OF AMERICA )
ss:
SOUTHERN DISTRICT OF FLORIDA
)
C E R T I F I C A T E
I, Yvette Hernandez, Certified Shorthand Reporter in
and for the United States District Court for the Southern
District of Florida, do hereby certify that I was present at,
and reported in machine shorthand, the proceedings had the 27th
day of November, 2023, in the above-mentioned court; and that
the foregoing transcript is a true, correct, and complete
transcript of my stenographic notes.
I further certify that this transcript contains pages
1 - 231.
IN WITNESS WHEREOF, I have hereunto set my hand at
Miami, Florida, this 25th day of February, 2025.
/s/Yvette Hernandez
Yvette Hernandez, CSR, RPR, CLR, CRR, RMR
400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
yvette_hernandez@flsd.uscourts.gov
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