Court filing

Transcript of Trial Day 17 as to Eric Dean Sheppard held on 01/11/2024 — USA v. Sheppard (Dkt. 323, 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. 323 · 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
(305) 523-5698
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,
January 11, 2024
8:32 a.m.

vs.

ERIC DEAN SHEPPARD,

Defendant.
Pages 1 THROUGH 191
______________________________________________________________

TRANSCRIPT OF TRIAL DAY 17
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
(305) 523-5698
I N D E X
Certificate..................................... 191
Charge Conference .............................. 3
Instructions to the Jury ....................... 43
Government Closing ............................. 57
Defendant Closing .............................. 85
Government Rebuttal Closing .................... 142
Final Instructions to the Jury ................. 162
Jury Question .................................. 174
Note from the Jury ............................. 179
Modified Allen Charge to the Jury .............. 183

W I T N E S S

ON BEHALF OF THE GOVERNMENT:
PAGE
(Rebuttal)
ALEX ZASLOW
CONTINUED CROSS-EXAMINATION BY MR. ETRA
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REDIRECT EXAMINATION BY MS. JIMENEZ
34

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Yvette Hernandez, Official Court Reporter
400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
(Call to order of the Court, 8:32 a.m.)
THE COURT: Hi. Good morning to everyone.
Let me acknowledge the presence of the Defendant.
MS. WEINTRAUB: Good morning, Judge.
THE COURT: Good morning.
The Court had provided the attorneys with the copy of
the proposed instructions on the law. Are there any issues
that we need to address before we make the copies for the
jurors?
MS. JIMENEZ: Yes. Your Honor, we had -- in our jury
instructions that we had submitted, we had included an aider
and abettor instruction, which I did not see.
THE COURT: I was looking to see whether there was the
statutory provision within the Superseding Indictment.
MS. WEINTRAUB: I don't think he's charged --
THE COURT: Is there a statutory provision that would
allow the Government to have the jury instructed on aiding and
abetting?
MS. JIMENEZ: The wire fraud counts, Your Honor.
MS. MARTINEZ: It's on Page 7 of the Indictment, Your
Honor.
THE COURT: Okay. Hold on one second. And to that
extent --
MS. MARTINEZ: And also Page 8 of the Indictment.
THE COURT: So on Page 7...
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Yvette Hernandez, Official Court Reporter
400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
MS. MARTINEZ: At the bottom you can see, Your Honor.
And at the bottom of Page 8. It's always charged that way
because you can commit an act not just on your own but by
directing others.
THE COURT: All right.
MR. ETRA: Your Honor, I'm sorry. Did it have 18 USC
2 in there, because I don't have it. I'm sorry.
THE COURT: Yes, it does.
All right. Let's make sure that that's placed back
in. Hold on.
(Pause in proceedings.)

THE COURT: All right. Any other issues -- and I
think the Government is correct that if it has charged it then
it's entitled to the instruction.
MS. WEINTRAUB: Yes, Your Honor.
THE COURT: All right. Any other issues with regard
to the jury instructions?
MR. ETRA: Well, Your Honor, we renew our objections.
And particularly with respect to the aiding and abetting, we
are very concerned because we've got the most recent Eleventh
Circuit case -- sorry -- the AIT, Your Honor. I apologize.
Aggravated identity theft.
We've got the most recent Eleventh Circuit case which
says that being -- which quotes from Dubin being at the crux of
the criminality requires more of a causal relationship and
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Yvette Hernandez, Official Court Reporter
400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
further states that -- referring to the decision in Linton --
THE COURT: Yes. And I believe that the Court did
follow the law with regard to Page 7 and 8 of the proposed
instructions.
MR. ETRA: Well, it says specifically the Government
is not required -- that the means of identification was
necessary or that the means did, in fact, cause.
So the last sentence is contrary to -- it has to be
causal plus. And the last sentence says it doesn't even have
to be causal. And frankly, the last two sentences are not from
any of the opinions. So we have a problem with both -- the
main issue, Your Honor -- and there's lots of ways of drafting
this -- is the last two sentences just really negate and gut
Dubin, and it feels like a facilitation defense. It should
say: "Causal plus," and here it says: "Not causal, not
required" --
MS. JIMENEZ: Where's the language in this decision
that you're talking about?
MR. ETRA: I would add --
THE COURT: All right. Let's do this, Mr. Etra: If
you can give me the case citation and then we'll all pull it
up.
MR. ETRA: Sure, Your Honor. In the Carter case, 2024
WL --
THE COURT: All right. Hold on. Let's go a little
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Yvette Hernandez, Official Court Reporter
400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
slower, please.
MR. ETRA: I apologize. In the Carter case, 2024 WL
20847, and at -- well, you know, Star 8, the Westlaw page Star
8.
MS. MARTINEZ: Your Honor, may we be provided with a
copy?
MS. WEINTRAUB: I'm giving it to them.
MR. ETRA: And I'll direct the Court further.
THE COURT: Let me just pull it up in Westlaw.
(Pause in proceedings.)
MR. ETRA: Your Honor?
THE COURT: Hold on. Let me just look at the case and
then look at the --
MR. ETRA: Sorry.
(Pause in proceedings.)
MS. JIMENEZ: Where's this language about causal?
MS. MARTINEZ: Do you have it perhaps in an email that
you could send to us?
THE COURT: All right. So as I understand the
argument looking at Carter, obviously the Court is well aware
of the Dubin case, that with regard to this instruction, the
inconsistency is the last sentence: "The Government is not
required to prove that the use of the means of identification
was necessary to the loan application or that the use of the
means of identification did, in fact, cause the disbursement of
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Yvette Hernandez, Official Court Reporter
400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
loan proceeds."
MR. ETRA: Right, Your Honor. And it should say
instead something consistent about causal plus. I mean --
THE COURT: Well, I think we -- causal plus meaning?
MR. ETRA: Well, meaning -- well, I don't want to
paraphrase, but being at the crux requires more than a causal
relationship. So it has --
THE COURT: The crux of the criminality requires more
than a causal relationship. And I believe that is what we
said, I think. "Relationship to the predicate offense when the
wire possession or use is at the crux of what makes the conduct
criminal. This requires there be a genuine nexus." I think
that's sufficient under the case law.
MR. ETRA: I mean, it doesn't say -- surely taking out
the last sentence, or the last two-plus sentences is helpful,
but nowhere does it say it has to be a cause and it has to be
more than a cause. The wording here -- you know, the sentence
here of: "This requires a genuine nexus between the transfer,
possession, and use and the predicate offenses," I mean that's
nice legalese, "genuine nexus," but I think jurors would
understand the concept of causation, and it's in the case. And
we ought to facilitate that by explaining it to them that the
requirement requires more than causation.
MS. JIMENEZ: What does that mean to them? Nothing.
MR. ETRA: Well, "nexus" means less.
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Yvette Hernandez, Official Court Reporter
400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
MS. JIMENEZ: It doesn't require that -- to prove the
use of the means of identification was necessary to the loan
application. It doesn't require that. None of those cases
that was a finding, a requirement.
MR. ETRA: Your Honor, there's also language in the
Linton discussion.
MS. JIMENEZ: It doesn't say that it's necessary to
accomplish the fraud, which I think is the thrust of that last
sentence. None of the cases require that. Dubin certainly
doesn't require that.
MR. ETRA: In the Linton discussion --
THE COURT: All right. Hold on. Hold on. Let me
just -- it appears that the Court's instruction is consistent
with the case. So Mr. Etra, what portion of the non-published
Carter case or the Supreme Court Dubin case are you claiming
was not included in the Court's instruction?
MR. ETRA: Sorry. The last sentence is inconsistent
with the Carter case.
THE COURT: Yes. The last sentence is inconsistent.
I agree with you. So I think the last sentence should be
deleted.
MR. ETRA: Okay. I wasn't sure --
THE COURT: So in terms of the key mover in the
criminality, and the -- is at the crux of what makes the
conduct criminal, it appears to be consistent.
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Yvette Hernandez, Official Court Reporter
400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
MR. ETRA: Well, I would add when it says: "Key mover
in the criminality" in the words in the jury instruction, it
then defines it meaning that it must be used in a manner that
is fraudulent or deceptive. I think that waters down key
mover. If we just had a period after "key mover in the
criminality," I think that would be more precise. Because I
don't see "key mover in the criminality" being narrowed that
way in the cases.
THE COURT: Meaning that it must be in a manner that
is fraudulent or deceptive.
MR. ETRA: Well, even under pre-Dubin, if you're using
a stolen identity, you're using it in a manner that's
fraudulent or deceptive --
THE COURT: I don't believe that's -- I mean, the
Court has defined it. I don't believe that there's any
additional -- the instruction is what the instruction is in
terms of defining the key mover in the criminality, meaning
that it much used in a manner that is fraudulent or deceptive.
MR. ETRA: Well, it's any -- even under the cases that
fall outside of Dubin, the idea is used in a manner that is
fraud or deceptive.
THE COURT: For purposes of the cases that you're
relying upon, it appears that the Court has adequately defined
each of the terms.
MS. JIMENEZ: And Your Honor, I would say -- I'm
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Yvette Hernandez, Official Court Reporter
400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
trying to find it now. But I don't believe the case law says:
"The key mover" but "a key mover in the criminality."
And the other with respect to the last --
THE COURT: Hold on. Hold on. Which case are you
referring to?
MS. JIMENEZ: Well, Dubin and Gladden. I don't
believe -- and I don't have them in front of me. I didn't
realize we were going to be having this issue this morning, but
the language is "a key mover."
THE COURT: Yeah. It's a -- I'm looking at the case.
It's "a key mover."
All right. Hold on. Hold on. "Must be a key mover."
MR. ETRA: Your Honor --
THE COURT: All right. So I just want to make sure
for purposes of the record the Court is taking out the last
sentence and is replacing "the" with "a key mover in the
criminality."
What other issues?
MS. JIMENEZ: I would say the last sentence, Your
Honor -- I understand the phrasing of "causing the disbursement
of loan proceeds," but I think the thrust of it is accurate and
I think it should be restated. That is the identity theft
doesn't have to be the thing that accomplishes the predicate
offense. That's not what's required in any of these cases.
MR. ETRA: Except for the word "causation." So it's
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Yvette Hernandez, Official Court Reporter
400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
another way of saying no causation, and the cases say there has
to be more than a causal relationship. So that language that's
suggested by the prosecutor that's inconsistent with --
MS. JIMENEZ: The language was from the Court's order.
But we can -- the Government is not required to prove that the
use of means of identification was necessary to accomplishing
the predicate offense because it doesn't, and -- in none of the
cases. It has to be used, and it has to be used in a way
that's deceptive, and it has to be used in the scheme and -- in
the predicate case and not be an ancillary feature. That's
what the cases say.
THE COURT: Well, I understand that. And the Court,
on Page 7, is saying: "The Government does not have to prove
that the Defendant stole the means of identification, only that
there was no legal authority for the Defendant to transfer,
possess, or use them."
So I believe that that last sentence, when the Court
then looks to what constitutes the "in relation to," "at the
crux of" and "a key mover in the criminality" is defining it.
This is somewhat inconsistent with the instruction to the jury
in terms of the definitions. So I don't believe that this is
appropriate, the last sentence.
MS. JIMENEZ: Well, could there be a replacement so
that the jury is not left with I think the wrong impression
about what the case law is requiring?
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Yvette Hernandez, Official Court Reporter
400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
THE COURT: What case are you citing to that would
require that the Court give additional instruction -- I mean, I
looked at Dubin. I'm looking at Carter. I'm looking at the
cases that have been cited, Gladden. What case are you relying
upon that would require that the Court give any additional
instruction with regard to the aggravated identity theft?
MS. JIMENEZ: I don't have a case, Your Honor.
THE COURT: Well, then let's move to the next
instruction that's at issue.
Any further issues? Because it's now quarter to nine.
I did give this to you last night. I did not receive any
additional instructions last night, and I did say that we'd
take the time this morning to address any issues with regard to
the Court's instructions. So absent a case, we're going to
move forward --
MR. ETRA: Your Honor, Similar Act Evidence. The
inference about the Defendant had a motive or the
opportunity --
THE COURT: What page?
MR. ETRA: I'm sorry. Page 9, and it starts the
fourth line from the bottom.
THE COURT: This is the standard instruction.
MR. ETRA: Well, I understand, but I don't think
there's been a predicate for motive or opportunity. The
others, I understand the way the 404(b) came in that it was
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Yvette Hernandez, Official Court Reporter
400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
intent, basically, state of mind.
THE COURT: But this is the Similar Acts Evidence,
Eleventh Circuit instruction, so I'm not going to modify it
merely because it may be superfluous. That is the instruction.
It's certainly not confusing to the jury at all.
Any other?
MS. WEINTRAUB: Yes, Your Honor.
Judge, we would specifically request with the theory
of defense instructions that we submit it to the Court. The
Court, I understand, gave the first theory of defense
instruction that we requested. However, I believe that we are
entitled to have a theory of defense on each of the substantive
counts because obviously each count has a different defense,
and therefore we would respectfully request the second theory
of defense as well that we submitted to the Court. And I
believe that we submitted cases in the comment and the blurb
with it.
(Pause in proceedings.)
MS. WEINTRAUB: It's on Page 4 of our submitted
proposed instructions, Your Honor.
MS. MARTINEZ: Counsel, do you have an extra copy --
we're having trouble locating ours -- of your instruction?
MS. JIMENEZ: Is it in your additional proposed
instructions?
MR. ETRA: Yes.
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Yvette Hernandez, Official Court Reporter
400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
MS. JIMENEZ: Which one is it, please?
MR. ETRA: Number 2.
MS. JIMENEZ: Why do they get to make this argument?
THE COURT: I agree. This Theory of Defense Number 2
is merely an attempt to negate the elements of the aggravated
identity theft and is not a defense. The two defenses are the
lack of knowledge and good faith defense, which is what the
Court gave. I don't believe it's a correct statement of the
law. So it's preserved, but I don't believe -- I've given the
two that the Court believes are appropriate.
Any further objections so that we can make the changes
and make the copies for the jurors?
MS. WEINTRAUB: No. No. As well as the Court has
denied by way of substituting the Court's instructions with our
instructions. If the Court's not going to go through them, I
just want the record to be clear that we have submitted
proposed instructions that are different from the Court's on --
and if the Court is denying our request, I just want it to be
clear that the Court is denying our request for the proposed
instructions that we submitted.
THE COURT: That's correct, and the objections are
preserved.
Let me ask since I anticipate that following the
conclusion of Mr. Laslow's [sic] testimony, we will then
proceed -- and we can take it sidebar if there are additional
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Yvette Hernandez, Official Court Reporter
400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
motions to be addressed. But at that point in time, we would
then proceed with the instructions on the law and the closing
arguments. So I want to make sure, just in preparation, that
the Government has a clean laptop with all of the uploaded
exhibits.
MS. WEINTRAUB: And we haven't seen it. I'd like to
see it.
MS. JIMENEZ: Your Honor, I know that we have worked
diligently on this. I was told that sometime at four in the
morning there were additional items submitted from the Defense
to our paralegal, and those have not been incorporated. And
she worked, I know, late into the night because she sent me a
message late into the night. So I can't make that
representation to the Court because we don't know what they
submitted to us at four in the morning.
THE COURT: When you say: "Submitted," all of the
exhibits have been admitted into evidence.
MS. JIMENEZ: They have.
THE COURT: So the submission should be just providing
the exhibits that have been admitted, correct?
MS. WEINTRAUB: That's correct.
THE COURT: So these are not additional submissions.
MS. WEINTRAUB: Correct.
THE COURT: The evidence that has been submitted on
the part of the Government and the Defendant has concluded,
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Yvette Hernandez, Official Court Reporter
400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
unless --
MS. JIMENEZ: I don't mean additional exhibits that
haven't been put in evidence, but that --
MS. MARTINEZ: She just doesn't have an updated
exhibit list of the Defense. So she would now have to be
updating the exhibit list for the Defense.
Is there anything that they can provide you that would
help you?
Here, you can address...
MS. JIMENEZ: So they made changes --
THE COURT: Yeah. Let me ask Mr. Cavallo. Since you
obviously have a command of the exhibits, could we work with
the Government so that we can get them uploaded. And that
tells me that we don't have an exhibit list that has been
completed. Do we have one exhibit list for the jurors?
MS. JIMENEZ: We had one as of last night, I believe.
THE COURT: All right. So Mr. Cavallo, if you could
review that, make sure those are the exhibits. Because once
that jury goes back to deliberate, I'm going to tell them not
to begin until the exhibits are provided to them. And I'm
going to ask in open court, number one, if the laptop contains
all the exhibits admitted into evidence and then, secondly, if
the corresponding exhibit list contains all of those exhibits.
So those are two of the questions I will ask. And the
third item is I need a clean Superseding Indictment that will
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Yvette Hernandez, Official Court Reporter
400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
go back to the jury. So do we have a clean one without the
date and the signature of the assistant US attorney?
MS. JIMENEZ: We'll print one out.
MS. WEINTRAUB: And Judge, I would like to see the
laptop before it goes back to --
THE COURT: Yes. Of course. Of course. I'm going to
ask that it be inspected and confirmed.
MS. WEINTRAUB: Thank you, Judge.
A housekeeping matter, if I might -- not really. It's
a Rule 29. And I understand that the Court is anxious to get
this to the jury; however, we would like the opportunity to
make argument to the Court. There are substantial arguments to
make on the AIT that have recently come up since we submitted
the brief that we submitted a written memorandum of law, which
I thought was going to be an aid for an oral argument but
things didn't work out that way. And I hope that we do have
the opportunity to at least argue to the Court based on the
recent testimony and based on the law that we can make a
substantial argument to the Court.
THE COURT: All right. And I did say that I would
reserve ruling. So certainly the Court can address that at the
appropriate time. But I'd like to get this back to the -- or
to the jury.
So let me discuss the proposed schedule and make sure
it comports with each of you. I anticipate that the courtroom
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Yvette Hernandez, Official Court Reporter
400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
deputy is now making copies of the instructions. I anticipate
that we will continue with Mr. Lazlo's testimony and we'll be
done at approximately 9:30. And the Court will then -- will
take motions sidebar briefly because the Court has already
advised that I will reserve ruling. So for purposes of
preserving the motions, we can certainly do that.
Then the Court will move forward with the instructions
on the law from nine to ten o'clock. Since the Government has
requested an hour and five minutes --
MS. MARTINEZ: Your Honor, did you say nine to ten
o'clock? I think you said Mr. Zaslow --
THE COURT: I'm sorry. 9:30. My apologies. 9:30 to
ten o'clock, the instructions on the law.
At that point in time, I think it might -- perhaps
we'll just -- I mean, we're only an hour into it. I think what
we can do is just move into the Government's opening close,
which is from approximately 10 to 11:05. Then we'll take a
10-minute recess. Then we'll proceed to the Defendant's hour
and a half, and then we'll take a break following that for 10
minutes.
And then we'll proceed to the Government's close
close. And then at that point in time the jury will
deliberate. Lunch will be brought in for the jurors. The
courtroom deputy will be obtaining lunch orders so that the
lunch will be in the jury room. And then following the jury
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Yvette Hernandez, Official Court Reporter
400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
going in to deliberate, I would hope that we would have a
review of the exhibits, a finalized exhibit list.
And Ms. Jimenez, if you will provide the courtroom
deputy with the clean Superseding Indictment shown to the
Defendant first.
Are there any other issues that we need to address?
MS. WEINTRAUB: Judge, can we get a copy emailed to us
of the Court's instructions?
THE COURT: I'm going to give you a -- I can email or
we can just provide a paper copy. All we're doing is adding
the Aiding and Abetting, taking out that one sentence, and
replacing "the" with "a."
MS. JIMENEZ: Your Honor -- does Your Honor have an
easel in the courtroom?
THE COURT: Do we have an easel? Can we ask Liz if we
have --
MS. WEINTRAUB: There was one.
THE COURT: What about this item over here?
MS. WEINTRAUB: The standing desk?
THE COURT: Can we use that?
MS. WEINTRAUB: No. But I was going to ask you if I
could use that during closing.
THE COURT: Yes. Of course. I just -- I don't know
if we have an easel.
MS. JIMENEZ: I thought I had seen one earlier in the
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Yvette Hernandez, Official Court Reporter
400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
trial.
MS. WEINTRAUB: There was. It was over there.
THE COURT: Can we see -- is there an easel? Yeah.
Can we see if it's over here?
MS. MARTINEZ: Your Honor, there's one more issue that
I want to clarify with respect to the exhibits.
THE COURT: Okay.
MS. MARTINEZ: During the trial, there was one credit
report that the Defense had an issue with, and we had agreed to
discuss that. I've never heard exactly what it is that they
want us to redact from it. It's 300 pages, so I wanted to
clarify that because there's one more redaction that Ms. Font
can make. We just need to know exactly what pages of that
300-page report they want to redact.
THE COURT: Do you have Mr. Cavallo?
Sir, do you know what portions there were issues with
with regard to personal information?
MR. CAVALLO: I believe I know. I'll have to speak
with Mr. Etra to see if we're still doing this.
THE COURT: Can we do that now so that that exhibit
can be redacted and then uploaded.
MS. MARTINEZ: And just to advise the parties, with
respect -- there was one other redaction that Ms. Font did
make, which is that the Defense had requested that the SBA
notes had a reference to the fact that the Defendant had been
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Yvette Hernandez, Official Court Reporter
400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
indicted. That was one paragraph, which was one of the most
recent notes that they had. Ms. Font went to each SBA note --
exhibit and went to the page that referred to the Indictment,
and she did redact that.
MR. ETRA: Any reference to fraud as well.
MS. MARTINEZ: Well, there's -- it says: "With
respect to the Indictment." Throughout the notes the SBA is
concerned about fraud and there are mentions of it. That was
not redacted. That's part of the reason they sometimes deny
some of the applications, and there's no way we could do that.
That's part of the case.
THE COURT: All right. If we could clarify that.
MS. JIMENEZ: I just need to run to the restroom.
THE COURT: Did we address it, Mr. Cavallo?
MR. CAVALLO: Yes, Your Honor. To the extent we're
going to need any redactions to the long report, Ms. Font and I
are going to work it out soon before everything is submitted,
Your Honor.
THE COURT: All right. Liz advised that we don't have
an easel. I'm not certain whose easel that was. Is it
possible that it's in the conference room? It's not in the
back?
MS. MARTINEZ: Your Honor, Ms. Jimenez went to the
restroom, and I'd like to do the same thing before we start.
THE COURT: Yes. Of course. Let's go ahead and
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Yvette Hernandez, Official Court Reporter
400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
take -- we'll take -- let's take a five-minute recess. And if
we can get Mr. Lazlo in here and then five minutes -- the jury
is here, correct? We have all members?
And in terms of the easel, Ms. Martinez -- perhaps,
Liz, could you see if maybe Judge Martinez has one? I know we
had one at one point.
MS. WEINTRAUB: It's been back at the interpreters'
desk almost the whole trial till yesterday, I noticed.
THE COURT: I remember seeing an easel. I just don't
know whose easel it was.
MS. WEINTRAUB: Is it in the jury room maybe?
THE COURT: The court security officer has already
checked. Do you want to see if maybe it's in one of the
conference rooms perhaps? And if not, maybe just see if
there's one in Judge Martinez's courtroom.
Let's go ahead and take a five-minute recess.
MS. MARTINEZ: Well, I'd like to go to the restroom.
THE COURT: Yes. That's why we're going to take a
five-minute recess.
(Recess from 9:02 a.m. to 9:10 a.m.)
THE COURT: All right.
Before we proceed, just have a seat for just a moment.
I just want to confirm what we had discussed before the start
of the trial. And that is to the extent that the jury does
make a finding of guilt, I want to address the issue with
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Yvette Hernandez, Official Court Reporter
400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
regard to the forfeiture allegations. Is the Government
seeking forfeiture in this case?
MS. JIMENEZ: Your Honor, we had talked about that a
money forfeiture is not an issue that the jury has to decide,
and that is the only type of forfeiture that we're seeking in
this case.
THE COURT: And the parties are in agreement that the
jury would not need to stay for any trial related to
forfeiture, correct?
MR. ETRA: Consistent with the discussions we had at
the beginning of trial, which we don't have to repeat --
THE COURT: But I did just want to confirm before the
jury is discharged.
MS. WEINTRAUB: And Judge, what is the Court's
procedure with regard to -- you know, I don't want this jury to
think that they have to reach a verdict by five o'clock, and
I'm nervous about that.
THE COURT: Not at all. I think we will advise them
they have the remainder of the day, and at five p.m. that we'd
adjourn and they'd come back tomorrow morning.
MS. WEINTRAUB: Okay. That would be great.
THE COURT: Yes. They can take as long as they need.
MS. WEINTRAUB: Thank you.
THE COURT: All right. Any other issues?
Do we have Mr. Laslow?
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Yvette Hernandez, Official Court Reporter
400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
MS. JIMENEZ: Yes, we do.
THE COURT: If we could bring the gentleman in, so we
can have him seated on the witness stand, so we can get
started.
MS. WEINTRAUB: Judge, I think it's Zaslow.
MS. JIMENEZ: With a Z.
THE COURT: I keep saying Lazlo. It's Zaslow. You're
right. And I have "Zaslow" here.
(Pause in proceedings.)

THE COURT: Hi. Good morning, Mr. Zaslow.
THE WITNESS: Good morning.
THE COURT: If you'll come forward, sir.
(Pause in proceedings.)
THE COURT: Okay. If everyone will stand for the
jury, please.
COURT SECURITY OFFICER: All rise for the jury.
(Before the Jury, 9:14 a.m.)
THE COURT: All right. Good morning, Ladies and
Gentlemen.
Please be seated, everyone.
It's good to see each of you.
Thank you for being prompt. I apologize for the
delay, but we are ready to continue with the testimony of
Mr. Zaslow. And we are on cross-examination.
MR. ETRA: Thank you, Your Honor.
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Yvette Hernandez, Official Court Reporter
400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
CROSS-EXAMINATION [CONTINUED]
BY MR. ETRA:
Q.
Good morning, Mr. Zaslow.
A.
Good morning.
Q.
When we left off, we had discussed the email that went to
Mr. Sheppard and all the other clients about the daunting task
and potentially your firm helping with the programs, correct?
A.
Correct.
Q.
And then we discussed that the day after or so Mr. Sheppard
wrote an email that was shown to you originally on direct,
where he mentions applying for Government programs. You recall
that?
A.
Yes.
Q.
Okay. Great. I want to pick up from there.
MR. ETRA: Your Honor, could we use the -- it's in
evidence. Could we use the ELMO?
THE COURT: Certainly.
MR. ETRA: Putting Exhibit 80-2 on the ELMO. I
apologize. I had to mark stuff up. And it's the end of trial,
so you're not getting the best technology today.
Oh. The power button?
Thank you.
BY MR. ETRA:
Q.
Okay. All right. So again, I apologize for the markings.
Here you see there's an email -- I think this was shown to you
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Yvette Hernandez, Official Court Reporter
400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
on direct, was it not?
A.
Correct.
Q.
Okay. So it's an email from Mr. Sheppard to Mr. Cupersmith
on April 21, 2020. Do you see that?
A.
Yes.
Q.
And among other things, he talks about PPP loans -- or
potentially, right?
A.
Yes.
Q.
Okay. And Mr. Cupersmith forwards it to -- it's hard to
read with my handwriting -- Mr. Zaslow. That's you, sir,
correct?
A.
Correct.
Q.
Okay. So then following up on those communications, you
now know that as of April 21 Mr. Sheppard is not just talking
about government programs, he was talking about the PPP loans,
right?
A.
Correct.
Q.
Okay. And then I could put on Q-34, and this is the
communication that talks about a conference call, correct?
A.
Yes.
Q.
And is it your testimony that the call happened on
April 22nd or do you not know?
A.
It was either April 22nd or the 23rd.
Q.
Okay. And by the way, were you physically -- it was with
Mr. Sheppard, yourself, and Mr. Cupersmith, correct?
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Yvette Hernandez, Official Court Reporter
400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
A.
Correct.
Q.
And were you physically in the office, you and
Mr. Cupersmith together, in April at that time?
A.
I don't recall.
Q.
In COVID were you working in the office?
A.
It was a hybrid schedule.
Q.
Okay. And so your testimony has been this call that
happened a day or two after the email on -- that talked about
PPP programs, correct?
A.
Correct.
Q.
Okay. And your testimony is that you have a clear
recollection almost four years ago about that phone call,
correct?
A.
That's correct.
Q.
But you have no notes of that call?
A.
That's correct.
Q.
Okay. And you clearly recall that there was no discussion
of anything -- of the -- of the references -- no discussion of
government programs or PPP loans that were referenced in the
preceding communications, correct?
A.
Yes. That call was about not releasing the returns because
we had not gotten paid.
Q.
Right. And so you didn't say anything to him about: "Hey,
you're talking about these government programs and PPP
programs, and we should talk about that." That didn't come up?
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Yvette Hernandez, Official Court Reporter
400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
A.
That's correct.
Q.
Okay. And so to be clear, you did not give any advice to
Mr. Sheppard about the PPP program, correct?
A.
That's correct.
Q.
So you didn't tell him, for example, that his companies are
ineligible, correct?
A.
I did not say that.
Q.
You never told him that you have to be W-2 employees,
correct?
A.
That's correct.
Q.
Or that a real estate developer is ineligible for
government -- for these kind of government programs, correct?
A.
Correct.
Q.
Never said it, right?
A.
Yes.
Q.
So your firm tells Mr. Sheppard that you can help with
government programs, correct?
A.
That was an email -- a mass email to all of our email
clients.
Q.
And Mr. Sheppard indicates that he's looking at those
programs, or applying, or applied, something along those lines,
right?
A.
Yes.
Q.
And and you have a conference call right at that time
frame?
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Yvette Hernandez, Official Court Reporter
400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
A.
That's correct.
Q.
And whatever happened in that call, definitely didn't give
him any advice about --
MS. JIMENEZ: Your Honor, asked and answered.
THE COURT: Sustained.
MR. ETRA: Okay. I want to move forward to 2021.
Your Honor I'm putting on the ELMO documents that are
part of the Government Exhibit 28. The first one is -- I have
the NC number. NC00198.
MS. JIMENEZ: Your Honor, outside the scope of direct.
I object. I was very limited to what I could ask about.
MR. ETRA: It's about discussion of the SBA loans and
advice or not advice.
MS. JIMENEZ: Your Honor, I was very limited --
THE COURT: With regard to the use of the exhibit, the
objection is sustained. Why don't you ask the question,
Mr. Etra, and see if there's a basis.
MR. ETRA: Sorry.
BY MR. ETRA:
Q.
Do you recall learning -- sorry. So in late 2021 is when
you worked on the 2020 tax returns, correct?
MS. JIMENEZ: Objection. Outside the scope of direct.
MR. ETRA: Well, I'm trying to build a predicate for
the question -- for the issue.
THE COURT: Sustained.
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Yvette Hernandez, Official Court Reporter
400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
BY MR. ETRA:
Q.
Did the subject of the SBA loans come up in 2021 in
communications between you and the HM companies?
A.
I asked about the loan that was on the books when I was
doing the tax return.
Q.
Right. Because you saw at least one reference to an SBA
loan, correct?
A.
That was from information provided by Jeanette.
Q.
Right. Okay. And at that time, did you tell the
companies: "Hey, there's an issue -- you may have an issue
here because you probably don't have enough W-2 employees for
this loan"?
A.
I didn't know what that was for, and I asked Jeanette what
that was.
Q.
And you never -- so the answer to my question is you never
gave that kind of advice to the HM companies when you saw the
SBA loan reference on the books and records, correct?
A.
That's correct.
Q.
Okay. And you didn't -- consistent with 2020, you still
never gave any advice one way or the other about the PPP
program, correct?
A.
That's correct.
Q.
And you never got the documents that you requested,
correct?
A.
That's correct.
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Yvette Hernandez, Official Court Reporter
400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
Q.
But you still filed the tax returns anyway?
A.
Based upon the information provided.
Q.
Right. And you never called up Mr. Sheppard and said:
"Hey, we're missing documents," correct?
A.
That's correct.
Q.
I want to turn to the subject of 1099 versus W-2. You
testified about that.
A.
Okay.
Q.
Okay. I think, from what I understand your direct
testimony was, that from 2017 until the end of the relationship
between the two firms, you personally didn't provide any advice
regarding how to categorize any workers as W-2 or 1099. Was
that your testimony?
A.
That's correct.
Q.
Okay. I want to understand that a little better. Does
that mean you may have done that before 2017?
A.
We never advised him on distinguishment between W-2s and
1099s.
Q.
Okay. You never did?
A.
Correct.
Q.
Okay. Is it your testimony that no one at the -- is it
your testimony that no one at the Cupersmith firm ever gave
advice about how to classify workers to people at the HM
companies or before them the WSG companies?
A.
I can't speak about what other people in my firm did. I
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Yvette Hernandez, Official Court Reporter
400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
just know personally I did not.
Q.
Right. You don't know what advice was given from the
Cupersmith firm to HM companies, or before that WSG, except
before 2017, correct?
A.
I know that I was not aware of any advice being provided by
other employees or staff --
Q.
But you don't know what was given, correct?
A.
I'm not aware of any advice or discussions between any
other staff members.
Q.
Did you investigate this matter and talk to all the people
that worked in your firm to determine whether they gave him any
advice?
MS. JIMENEZ: Objection, Your Honor.
THE COURT: And the basis?
MS. JIMENEZ: It's irrelevant.
THE COURT: Overruled.
You may answer the question, sir.
THE WITNESS: Sorry. Can you repeat the question?
BY MR. ETRA:
Q.
Did you investigate all the people that have worked from
the Cupersmith firm with the HM companies, or before that WSG,
to determine whether -- whether or not they had ever given that
advice?
A.
No.
Q.
Okay. And on a year-to-year basis, you were preparing tax
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Yvette Hernandez, Official Court Reporter
400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
returns for the HM companies, right?
A.
Correct.
Q.
Even though Mr. Cupersmith signs as the preparer, correct?
A.
That's correct.
Q.
Okay. And one of the line items in there is wages,
correct?
A.
Correct.
Q.
And wages, you understand, means W-2 workers, right?
A.
That's correct.
Q.
It's part of your responsibility as the preparer to make
sure that the correct -- that workers are classified correctly,
correct?
A.
I wouldn't put it that way, no.
Q.
Do you bear any responsibility in preparing the returns to
do any due diligence to make sure?
A.
We ask the question if they filed the 941s, and can we see
copies of those.
Q.
That's all you do?
A.
Correct.
Q.
So no effort is made to make sure the companies are
classifying these employees or workers correct, right?
A.
That's not our responsibility.
Q.
Not your responsibility. Did you ever tell that to
Mr. Sheppard?
A.
No. That's an employer's responsibility.
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Yvette Hernandez, Official Court Reporter
400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
Q.
Did you ever tell that to Mr. Sheppard?
A.
No.
Q.
Did you ever speak to Mr. Graff about his classification as
a 1099ed worker when the other ones were W-2?
MS. JIMENEZ: Objection.
THE COURT: Sustained.
BY MR. ETRA:
Q.
Were you comfortable when you filed tax returns, and you
had to fit in the wages, that it didn't include W-2 for
Mr. Graff -- were comfortable that that was done correctly?
MS. JIMENEZ: Objection.
THE COURT: Sustained.
MR. ETRA: May I have a moment, Your Honor?
THE COURT: All right.
MR. ETRA: No further questions.
THE COURT: Any redirect?
REDIRECT EXAMINATION
BY MS. JIMENEZ:
Q.
During the pandemic, did you have clients who obtained
assistance from your accounting firm in relation to government
loans?
A.
Yes.
Q.
Did you have clients who did not seek your advice --
MR. ETRA: Beyond the scope, Your Honor.
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Yvette Hernandez, Official Court Reporter
400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
BY MS. JIMENEZ:
Q.
-- or assistance in relation to government loans?
MR. ETRA: Beyond the scope.
THE COURT: Sustained.
MS. JIMENEZ: It was --
BY MS. JIMENEZ:
Q.
You were asked about documents that aren't provided to your
firm in relation to the preparation of tax returns. What is
the -- what is your responsibility in relation to the
preparation of the -- of the Defendant's tax returns?
A.
Supposed to rely on the information provided by the client.
Q.
Is there something that your firm would include in the tax
returns that you prepared for this particular client and his
companies in relation to the information or the lack of
information that they provided?
A.
Yes.
Q.
What was that?
A.
It was a Tax Preparer Declaration Form.
Q.
What is that?
A.
It basically said that, you know -- can't remember exactly
the terms, but it was something like we relied on the
information from the client. We don't believe we had the full
information reported in this tax return. If we receive any
additional information we'll update amended returns.
Q.
In 2018, 2019, 2020, 2021, would you request payroll
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Yvette Hernandez, Official Court Reporter
400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
records from them?
A.
Yes.
Q.
Were you provided payroll records, that is 941s?
A.
No.
Q.
Who was the -- in the last five years up until 2022, when
the relationship was severed with the Defendant, who was the
primary accountant at your firm who prepared the tax returns
for the Defendant?
A.
I was.
Q.
And so the question about other people providing advice --
you were the principal person?
A.
Correct.
Q.
Did you provide advice -- was advice sought from you and
did you provide any advice regarding the W-2s?
MR. ETRA: Beyond the scope, Your Honor.
THE COURT: Sustained.
MS. JIMENEZ: The question was asked about his advice.
THE COURT: The objection is sustained.
MS. JIMENEZ: One moment, Your Honor.
(Pause in proceedings.)
MS. JIMENEZ: Could we go to the ELMO for a moment.
BY MS. JIMENEZ:
Q.
The exhibit you were shown, the email from
April 21st, 2020 --
MS. JIMENEZ: First I want to clarify it is actually
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Yvette Hernandez, Official Court Reporter
400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
Government's Exhibit 81. I think it was noted as 80-2.
MR. ETRA: Whatever it was.
MS. JIMENEZ: Right. Just for the record.
BY MS. JIMENEZ:
Q.
And in that message -- in that email communication to Neal
that was forwarded to you, did you notice that the Defendant
requested a letter from the accountant that he was a general
partner or manager and that he would do at least a hundred
thousand --
MR. ETRA: Beyond the scope, Your Honor.
MS. JIMENEZ: No --
THE COURT: Overruled.
BY MS. JIMENEZ:
Q.
Did you note that? Did you see that before?
A.
Yes.
Q.
Was the Defendant, for any of his companies, any of his
partnerships -- was he a general partner?
A.
No.
Q.
In giving advice to clients regarding PPP, was it the case
that earnings for a partner, or wages for an employee that you
can claim, are capped at a hundred thousand?
MR. ETRA: Leading and beyond the scope.
THE COURT: Sustained on the second ground.
MS. JIMENEZ: All right. I have nothing further, Your
Honor.
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Yvette Hernandez, Official Court Reporter
400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
THE COURT: All right. Is Mr. Zaslow excused?
MR. ETRA: Yes, Your Honor.
MS. MARTINEZ: Yes, Your Honor.
THE COURT: All right. Thank you, sir. You are
excused.
(Witness excused.)
THE COURT: Any further rebuttal evidence from the
Government?
MS. JIMENEZ: No, Your Honor.
THE COURT: All right.
THE WITNESS: Thank you, Your Honor.
THE COURT: Ladies and Gentlemen, both the Government
and the Defendant have rested their respective cases. At this
point in time -- do we need to take any issues sidebar?
MS. WEINTRAUB: Yes, Your Honor, if we might.
THE COURT: All right.
Instead of taking it at sidebar, let me just advise
the jurors for just a moment.
Ladies and Gentlemen, at this point in time we are
going to address some issues with the attorneys, and then we
will proceed with instructions on the law and the attorneys
will have the opportunity to make their closing arguments to
you. So at this point in time we will take an issue sidebar
and then we'll continue with the trial.
All right. If you'll come forward.
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Yvette Hernandez, Official Court Reporter
400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
(At sidebar on the record.)
THE COURT: All right. I need each of the attorneys
to please hold the microphones. If you could just -- not
those.
Okay.
MS. WEINTRAUB: May I?
THE COURT: Yes.
MS. WEINTRAUB: Judge, at this time we would move for
a Rule 29. We would renew all motions, objections previously
made to the Court in this case, specifically with regard to the
404(b), the 403 on all the uncharged additional 404 that came
in.
With respect to the AIT charge, the aggravated
identity theft, we would like the opportunity to further argue
that to the Court. And we would also -- and we would also
renew our objection and move to strike the rebuttal evidence
because it was not true rebuttal. They could have done that in
their case in chief. He didn't rebut anything. It was a total
strategic move. They had him come down two days before and it
was all planned.
THE COURT: All right.
MS. WEINTRAUB: And the Sixth Amendment on the hearsay
and the right to confront with all the shutdowns on the
cross-examination that were specifically addressed at the
appropriate time.
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Yvette Hernandez, Official Court Reporter
400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
THE COURT: All right. So --
MS. WEINTRAUB: With regard to impeachment.
THE COURT: So three separate motions before the
Court.
MS. WEINTRAUB: Yes.
THE COURT: Response?
MS. JIMENEZ: Well, I want to respond specifically
with respect to -- I mean, I think I responded to the Rule 29
in the filings that we made. But specifically on the issue of
rebuttal, this witness specifically rebutted the Defendant's
lies on the stand that this firm gave him advice regarding W-2
employees versus 1099 contractors back in December.
And then in -- when he came back in January, he lied
to this jury telling them that this firm gave him advice around
April 22nd, April 23rd, when he was in the process of applying
for PPP loans, gave him specific advice as to which companies
should apply, as to the time frame when those companies should
apply, and specific information regarding that, and this
witness rebutted that. And that was the main thrust of the
testimony.
There was also an exhibit introduced by the Defense in
their case in chief with respect to W-2s for three of their
employees, and they were suggesting with that exhibit that
these were the purported 941s that were missing, and there was
an effort -- though I don't know that I was able to fully
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Yvette Hernandez, Official Court Reporter
400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
explain that through the testimony -- but that was also part of
what -- why he was brought for rebuttal purposes, to explain to
the jury that those W-2s are not 941s.
THE COURT: All right. Is there anything further?
You need a mic, Mr. Etra.
Ms. Weintraub?
MS. WEINTRAUB: No, Your Honor. Thank you.
THE COURT: All right. Then as the Court did advise,
I will reserve with regard to the motions so that we can move
forward with the closing arguments and the instructions on the
law.
MS. JIMENEZ: We can proceed. I just need one minute.
If I can just step outside. I need to put eyedrops in my eyes.
THE COURT: Not a problem. Here's what we'll do --
because we also have the easel as well that we were able to
find in Judge Martinez's. So how about we take a short
five-minute stretch break, and this way we can get ready.
(End of discussion at sidebar.)
THE COURT: All right. Ladies and Gentlemen, thank
you for your patience. At this point in time, we are going to
take a short stretch break. I appreciate your indulgence. And
if you'll just step into the jury room and we'll take a
five-minute stretch break.
COURT SECURITY OFFICER: All rise for the jury.
(Jury not present, 9:34 a.m.)
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Yvette Hernandez, Official Court Reporter
400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
THE COURT: All right. We're on a five-minute recess.
(Recess from 9:34 a.m. to 9:53 a.m.)
THE COURT: We have reprinted the -- go ahead and have
a seat for just a moment. We have reprinted -- where is
Mr. Etra -- Ms. Weintraub is here.
We have reprinted the jury instructions. The Aiding
and Abetting came between two of the Defendant's defenses. So
we reprinted and clarified that. So copies will be provided.
(Pause in proceedings.)
THE COURT: All right. Are both sides ready to
proceed?
MS. WEINTRAUB: Yes, Your Honor.
THE COURT: All right. Then let's go ahead and bring
in the jury.
COURT SECURITY OFFICER: All rise for the jury,
please.
(Before the Jury, 9:55 a.m.)
THE COURT: All right. Welcome back, Ladies and
Gentlemen.
Please be seated.
I appreciate your patience.
Go ahead and have a seat, everyone.
As the Court did advise you, both the Government and
the Defendant have rested their case. At this point we will
proceed with instructions on the law, and then the attorneys
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Yvette Hernandez, Official Court Reporter
400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
will have an opportunity to make their final argument.
As some of us are auditory learners, but some of us
are visual learners, copies of the Court's instructions to you
have been provided. They are being disseminated at this time.
You are free to read along with the Court. You don't have to.
However, I would request that following the Court's
instructions to you, that you place the jury instructions down
and give the attorneys your undivided attention, unless they
specifically ask that you refer to certain provisions of the
Court's jury instructions.
Now that each of you have a copy, Members of the Jury:
It is my duty to instruct you on the rules of law that
you must use in deciding this case. After I have completed
these instructions, you will go to the jury room and begin your
discussions, what we call your deliberations.
You must decide whether the Government has proved the
specific facts necessary to find the Defendant guilty beyond a
reasonable doubt.
Your decision must be based only on the evidence
presented during the trial. You must not be influenced in any
way by either sympathy for or prejudice against the Defendant
or the Government.
You must follow the law as I explain it, even if you
do not agree with the law. And you must follow all of my
instructions as a whole. You must not single out or disregard
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Yvette Hernandez, Official Court Reporter
400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
any of the Court's instructions on the law.
The Indictment or formal charge against the Defendant
is not evidence of guilt. The law presumes every defendant is
innocent. The Defendant does not have to prove his innocence
or produce any evidence at all. A defendant does not have to
testify. And if the Defendant chose not to testify, you cannot
consider that in any way while making your decision. The
Government must prove guilt beyond a reasonable doubt. If it
fails to do so, you must find the Defendant not guilty.
The Government's burden of proof is heavy, but it does
not have to prove a defendant's guilt beyond all possible
doubt. The Government's proof only has to exclude any
reasonable doubt concerning the Defendant's guilt.
A reasonable doubt is a real doubt, based on your
reason and common sense after you have carefully and
impartially considered all the evidence in the case.
Proof beyond a reasonable doubt is proof so convincing
that you would be willing to rely and act on it without
hesitation in the most important of your own affairs. If you
are convinced that the Defendant has been proved guilty beyond
a reasonable doubt, say so. If you are not convinced, say so.
As I said before, you must consider only evidence that
I have admitted in the case. Evidence includes the testimony
of witnesses and the exhibits admitted, but anything the
lawyers say is not evidence and is not binding on you.
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Yvette Hernandez, Official Court Reporter
400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
You should not assume from anything I have said that I
have any opinion about any factual issue in this case. Except
for my instructions to you on the law, you should disregard
anything I may have said during the trial in arriving at your
own decision about the facts. Your own recollection and
interpretation of the evidence is what matters.
In considering the evidence, you may use reasoning and
common sense to make deductions and reach conclusions. You
should not be concerned about whether the evidence is direct or
circumstantial.
Direct evidence is the testimony of a person who
asserts that he or she has actual knowledge of a fact, such as
an eyewitness.
Circumstantial evidence is proof of a chain of facts
and circumstances that tend to prove or disprove a fact. There
is no legal difference in the weight you may give to either
direct or circumstantial evidence.
When I say you must consider all of the evidence, I do
not mean that you must accept all the evidence as true or
accurate. You should decide whether you believe what each
witness had to say and how important that testimony was. In
making that decision, you may believe or disbelieve any witness
in whole or in part.
The number of witnesses testifying concerning a
particular point does not necessarily matter. To decide
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Yvette Hernandez, Official Court Reporter
400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
whether you believe any witness, I suggest you ask yourself a
few questions: Did the witness impress you as one who was
telling the truth? Did the witness have any particular reason
not to tell the truth? Did the witness have a personal
interest in the outcome of the case? Did the witness seem to
have a good memory? Did the witness have the opportunity and
ability to accurately observe the things he or she testified
about? Did the witness appear to understand the questions
clearly and answer them directly? Did the witness's testimony
differ from other testimony or other evidence?
You should ask yourself whether there was evidence
that a witness testified falsely about an important fact and
ask whether there was evidence that at some other time a
witness said or did something, or did not say or do something,
that was different from the testimony the witness gave during
this trial.
But keep in mind that a simple mistake does not mean a
witness was not telling the truth as he or she remembers it.
People naturally tend to forget some things or remember them
inaccurately. So if a witness misstated something, you must
decide whether it was because of an innocent lapse in memory or
an intentional deception. The significance of your decision
may depend on whether the misstatement is about an important
fact or about an unimportant detail.
A defendant has a right not to testify. But since the
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Yvette Hernandez, Official Court Reporter
400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
Defendant did testify, you should decide whether you believe
the Defendant's testimony in the same way as that of any other
witness.
When scientific, technical, or other specialized
knowledge might be helpful, a person who has special training
or experience in that field is allowed to state an opinion
about the matter, but that doesn't mean that you must accept
the witness's opinion. As with any other witness's testimony,
you must decide for yourself whether to rely upon the opinion.
The Superseding Indictment charges 14 separate crimes,
called counts, against the Defendant, Eric Dean Sheppard. Each
count has a number. You will be given a copy of the
Superseding Indictment to refer to during your deliberations.
Counts 1 through 14 charge that the Defendant
committed what are called substantive offenses. Specifically
in Counts 1 through 9 the Defendant is charged with wire fraud.
In Counts 10 through 14 the Defendant is charged with
aggravated identity theft. I will explain the law governing
those substantive offenses in a moment.
When a statute specifies multiple alternative ways in
which an offense may be committed, the Superseding Indictment
may allege the multiple ways in the conjunctive, that is by
using the word "and." If only one of the alternatives is
proved beyond a reasonable doubt, that is sufficient, so long
as you agree unanimously as to that alternative.
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Yvette Hernandez, Official Court Reporter
400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
It is a federal crime to use interstate wire
communications to carry out a scheme to defraud someone else.
The Defendant can be found guilty of this crime only if all of
the following facts are proved beyond a reasonable doubt:
Number one: The Defendant knowingly devised or
participated in a scheme to defraud or to obtain money or
property by using false pretenses, representations, or
promises; two, the false pretenses, representations, or
promises were about a material fact; three, the Defendant acted
with the intent to defraud; and four, the Defendant
transmitted, or caused to be transmitted, by some wire
communication in interstate commerce, to help carry out the
scheme to defraud.
A scheme to defraud means any plan or course of action
intended to deceive or cheat someone out of money or property
by using false or fraudulent pretenses, representations, or
promises.
A statement or representation is false or fraudulent
if it is about a material fact that the speaker knows is
untrue, or makes with reckless indifference to the truth, and
makes with the intent to defraud. A statement or
representation may be false or fraudulent when it is a
half-truth, or effectively conceals a material fact, and is
made with the intent to defraud.
A material fact is an important fact that a reasonable
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Yvette Hernandez, Official Court Reporter
400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
person would use to decide whether to do or not to do
something. A fact is material if it has the capacity or
natural tendency to influence a person's decision. It does not
matter whether the decision-maker actually relied on the
statement or knew or should have known that the statement was
false.
To act with intent to defraud means to do something
with a specific intent to deceive or cheat someone, usually for
personal financial gain or to cause financial loss to someone
else. Proving intent to deceive a loan without the intent to
cause loss or injury is not sufficient to prove intent to
defraud.
The Government does not have to prove all the details
alleged in the Superseding Indictment about the precise nature
and purpose of the scheme. It also does not have to prove that
the material transmitted by interstate wire was itself false or
fraudulent or that use of that wire -- of the wires was
intended as the specific or exclusive means of carrying out the
alleged fraud, or that the Defendant personally made the
transmission over the wire. And it doesn't have to prove that
the alleged scheme actually succeeded in defrauding anyone.
To use interstate wire communications is to act so
that something would normally be sent through wire
communications in the normal course of business.
Each separate use of the interstate wire
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Yvette Hernandez, Official Court Reporter
400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
communications as part of the scheme to defraud is a separate
crime.
The law provides for an enhanced penalty when anyone
commits aggravated identity theft during and in relation to
other certain specified felony offenses.
The Defendant can be found guilty of that offense only
if all of the following facts are proved beyond a reasonable
doubt:
Number one, the Defendant knowingly transferred,
possessed, or used another person's means of identification;
two, without lawful authority; three, during and in relation to
wire fraud, as charged in Counts 2, 3, 6, 8, and 9 of the
Superseding Indictment.
A means of identification is any name or number used
alone or together with any other information to identify a
specific person, including a name, Social Security number, date
of birth, officially use -- issued driver's license or
identification number, alien registration number, passport
number, employer or taxpayer identification number, or
electronic identification number or routing code. It can also
include a fingerprint, voice print, or other biometric data.
The Government must prove that the Defendant knowingly
transferred, possessed, or used another person's identity
without lawful authority. The Government does not have to
prove that the Defendant stole the means of identification,
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Yvette Hernandez, Official Court Reporter
400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
only that there was no legal authority for the Defendant to
transfer, possess, or use them.
The Government must prove that the Defendant knew that
the identification in fact belonged to another person --
another actual person, not a fictitious person.
The Government also must prove that the means of
identification was transferred, possessed, or used during and
in relation to the alleged predicate offense, wire fraud. A
Defendant transfers, possesses, or uses another person's means
of identification during and in relation to the predicate
offense, wire fraud, when the transfer, possession, or use is
at the crux of what makes the conduct criminal. That requires
that there be a genuine nexus between the transfer, possession,
or use of a means of identification and the predicate offense.
For a crime involving fraud or deceit, the Defendant's
use of the means of identification of another person must have
been used not merely as an ancillary feature of the wire fraud.
Rather, the means of identification specifically must be a key
mover in the criminality. Meaning that it must be used in a
manner that is fraudulent or deceptive.
It is possible to prove the Defendant guilty of a
crime even without evidence that the Defendant personally
performed every act charged.
Ordinarily, any act a person can do may be done by
directing another person or agent, or it may be done by acting
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Yvette Hernandez, Official Court Reporter
400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
with or under the direction of others.
A Defendant aids and abets a person if the Defendant
intentionally joins with the person to commit the crime.
A defendant is criminally responsible for the acts of
another person if the Defendant aids and abets the other
person. A defendant is also responsible if the defendant
willfully directs or authorizes the acts of an agent, employee,
or other associate. But finding that a defendant is criminally
responsible for the acts of another person requires proof that
the Defendant intentionally associated with or participated in
the crime, not just proof that the Defendant was simply present
at the scene of a crime or knew about it. In other words, you
must find beyond a reasonable doubt that the Defendant was a
willful participant and not merely a knowing spectator.
The Defendant contends that he was unaware of any
misrepresentations and false statements in the government loan
applications and supporting materials submitted on behalf of
his companies and therefore he did not have the intent to
defraud any lending institution or governmental agency. The
Defendant contends that he did not knowingly participate in any
scheme to defraud the lenders or the SBA of money and therefore
he is not criminally responsible for any misstatements in the
applications or false information in supporting documents. If
you find that the Defendant acted without knowledge of
misrepresentations and false statements or without the intent
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Yvette Hernandez, Official Court Reporter
400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
to defraud a lender as to any particular counts, you must find
Mr. Sheppard not guilty on such counts.
Specifically with respect to the forged 1065 tax
returns, the Defendant is charged with the crime of wire fraud
for their submission in connection with PPP loan applications.
The Defendant contends he was unaware of any forgery or the
submission of any forged or falsified tax returns submitted
constituting the wire fraud charges involving the PPP program.
If you find that the Defendant did not knowingly submit forged
tax returns, you must find the Defendant not guilty of such
counts.
Good faith is a complete defense to a charge that
requires intent to defraud. A defendant is not required to
prove good faith. The Government must prove intent to defraud
beyond a reasonable doubt.
An honestly held opinion or an honestly formed belief
cannot be fraudulent intent, even if the opinion or belief is
mistaken. Similarly, evidence of a mistake in judgment and
error in management or carelessness cannot establish fraudulent
intent, but an honest belief that a business venture would
ultimately succeed does not constitute good faith that the
Defendant intended to deceive others by making representations
the Defendant knew to be false or fraudulent.
During the trial, you have heard evidence of acts
allegedly done by the Defendant on other occasions that may be
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Yvette Hernandez, Official Court Reporter
400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
similar to acts with which the Defendant is currently charged.
You must not consider any of this evidence to decide whether
the Defendant engaged in the activity alleged in the
Indictment. This evidence is admitted and may be considered by
you for the limited purpose of assisting you in determining
whether the Defendant had the state of mind or intent necessary
to commit the crime charged in the indictment, the Defendant
had a motive or the opportunity to commit the acts charged in
the Indictment, the Defendant acted according to a plan or in
preparation to commit a crime, or the Defendant committed the
acts in the Indictment by accident or mistake.
You'll see the Superseding Indictment charges that a
crime was committed on or about a certain date. The Government
does not have to prove that the crime occurred on an exact
date. The Government only has to prove beyond a reasonable
doubt that the crime was committed on a date reasonably close
to the date alleged.
The word "knowingly" means that the act was done
voluntarily and intentionally and not because of a mistake or
by accident.
There have been summary testimony from witnesses at
this trial, and the Court permitted this testimony in order to
aid you in considering the evidence. Therefore, you are to
give no greater consideration to summary testimony than you
would give to the evidence upon which that testimony is based.
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Yvette Hernandez, Official Court Reporter
400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
It is for you to decide whether the summary testimony or chart
offered by a witness correctly presented the information
contained in the documents on which they were based and what
weight to give such evidence.
Each count in the Superseding Indictment charges a
separate crime against the Defendant. You must consider each
crime and the evidence relating to it separately. If you find
the Defendant guilty of one crime, that must not affect your
verdict for any other crime charged.
I caution you the Defendant is on trial only for the
specific crimes charged in the Superseding Indictment. You are
here to determine from the evidence in this case whether the
Defendant is guilty or not guilty of those specific crimes.
You must never consider punishment in any way to
decide whether a defendant is guilty. If you find a defendant
guilty, that punishment is for the judge alone to decide later.
You have been permitted to take notes during the
trial. Most of you, perhaps all of you, have taken advantage
of that opportunity. You must use your notes only as a memory
aid during your deliberations. You must not give your notes
priority over your independent recollection of the evidence,
and you must not allow yourself to be unduly influenced by the
notes of other jurors. I emphasize that notes are not entitled
to any greater weight than your memories or impressions about
the testimony.
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Yvette Hernandez, Official Court Reporter
400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
Your verdict, whether guilty or not guilty, must be
unanimous; in other words, you must all agree. Your
deliberations are secret and you will never have to explain
your verdict to anyone.
Each of you must decide the case for yourself, but
only after fully considering the evidence with other jurors.
So you must discuss the case with one another and try to reach
an agreement. While you're discussing the case, do not
hesitate to reexamine your own opinion and change your mind if
you become convinced that you were wrong, but do not give up
your honest beliefs because others think differently or because
you simply want to get the case over with. Remember that in a
very real way you are judges, judges of facts. Your only
interest is to seek the truth from the evidence in this case.
Ladies and Gentlemen, I will shortly review the
Verdict Form and give you further instructions, but I would ask
at this time that you place your jury instructions down. We
will now proceed with closing arguments.
Each side will have equal time, but the Government is
entitled to divide this time between an opening argument and a
rebuttal argument after the Defendant has spoken. We will
certainly take a break following the Government's initial
closing argument. And then we will proceed with the
Defendant's closing argument, we'll take a break, and then
we'll proceed with the rebuttal before the Court gives you
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Yvette Hernandez, Official Court Reporter
400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
additional instructions. But please give the attorneys your
undivided attention at this time.
On behalf of the Government.
MS. JIMENEZ: Thank you, Your Honor.
(Pause in proceedings.)
MS. JIMENEZ: Good morning, Ladies and Gentlemen.
First, I want to thank you on behalf of the United
States and the FBI for being willing to serve, for the time you
have given to this case, which obviously is much more time than
anyone had anticipated, and for the close attention you have
paid to the evidence presented during this trial.
This is an important case for the United States, for
the FBI, for the Small Business Administration, for the lenders
involved in this case, and also for Mr. Eric Sheppard. This is
not, however, a complicated case. We told you in opening
statements that this was a case about lies, lies the Defendant
made over and over again, both big and small, in order to make
his businesses appear as if they were eligible for these COVID
relief loans when, in fact, he was not. And but for those
lies, he would not have gotten those loans.
The evidence has shown beyond a reasonable doubt that
the Defendant lied to the lenders, that he lied to the SBA,
that he lied to Nelly Palancar at Nationwide, and then he took
the stand here as a witness and he lied to you.
We've talked about the PPP program, the Paycheck
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Yvette Hernandez, Official Court Reporter
400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
Protection Program, in which a business with employees could
apply for a loan to help pay wages to employees, and a business
could apply for an Economic Injury Disaster Loan to help cover
the fixed costs of the business, capital expenses of a
business's actual operations. The Defendant lied to the
lenders to get the PPP funds when he had no wage employees, and
he lied to the SBA to get Economic Injury Disaster Loans for
businesses that did not have actual operations. And even as to
the businesses that had operations, HM Management and HM-UP
Development Alafaya Trails, he lied about those businesses too,
inflated the figures relating to those companies.
Now, you heard a lot in this case from the Defense
about this -- the conversion of the Toys "R" Us into a
Burlington store. This is not a case about what happened at
Burlington Coat Factory. This is a case about the fraud
factory located at 180 Bal Cross Drive in Bal Harbour, Florida,
the Defendant's home, where he was working during COVID.
The Defense has told you the Defendant spent all the
money on his businesses. You saw the flow of the money from
Mr. Hysa at the FBI showing that the loan proceeds, the fraud
proceeds, went into the Defendant's business accounts. And
from there, yes, he spent the money on his businesses as he
chose, but he also spent the money on his home mortgage,
personal expenses on his credit card, car payments, his
children's tuition. He spent the money on a lot of different
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Yvette Hernandez, Official Court Reporter
400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
things. And you know he didn't spend the money as intended,
and that he knew it, because he did not even apply for
forgiveness for two of the three PPP loans.
Now, no matter how the money was spent, the Defendant
was not entitled to get it. If you rob a bank and you spend
the money on your business, you've still committed a crime. In
this case the Defendant committed numerous crimes in obtaining
those funds to which he was not entitled; wire fraud crimes and
aggravated identity theft.
And why the Defendant wanted this money -- he told you
he could cover it, he had funds available from other sources.
So why did he want this money? Because he could get it.
Because it was practically free money, right? The PPP loans
were forgivable. At worst case, you pay them back at one
percent. And the EIDL loans, you get a below-market rate that
you pay back over the course of 30 years. It was advantageous
to him, and so he took it.
The Defendant is charged with devising and carrying
out a scheme to defraud the private lenders and the SBA in
order to receive these funds to which he and his companies were
not entitled. There are nine counts of wire fraud, which are
acts in execution of the scheme to defraud, and five counts of
aggravated identity theft involving the use of other people's
identities, who you've heard from, Neal Cupersmith, Heimdal
Barrios, Maged Salem. He used their names, their titles, their
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Yvette Hernandez, Official Court Reporter
400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
positions, their signature to generate false documents
purportedly prepared by them or signed by them, so that the
Defendant -- and he used those documents in support of his lies
and to support his scheme to defraud.
I want to go over some of the jury instructions with
you.
All right. At the beginning of the trial, you took an
oath to be fair and impartial judges of the facts. And so you
must not be influenced in any way by either sympathy for or
prejudice against either the Defendant or the Government, and
you can only base your decision on the evidence presented
during the trial. There is one thing, however, that you can
bring into your deliberations that is outside the evidence
presented in this trial, and that is your common sense. Your
collective common sense is something that you will employ when
you evaluate the evidence in this case, and you should.
Credibility of the witnesses. These are instructions
that help you gauge -- or questions to ask yourselves when you
think about how you judge the credibility of the witnesses:
Did the witness have a particular reason not to tell the truth?
Did the witness have a personal interest in the outcome of the
case? Well, who had a personal interest in the outcome of the
case? Of course, the Defendant.
And the Defendant was on the stand for a long time,
both on direct and cross-examination. He lied about things big
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Yvette Hernandez, Official Court Reporter
400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
and small, basic things, like -- I don't know if it took 15
minutes to have him acknowledge that he was the boss of his
companies. I don't think he ever once mentioned the word
employee. A successful businessman with a degree in economics
and finance cannot and does not know, he claims here, the
difference between employees, independent contractors, W-2
wages, 1099 payments, has no clue.
And of course, at one point, he gave you a mini
lecture on the difference between the accrual basis and the
cash basis of accounting in relation to those profit/loss
statements that we saw. And of course, he lied about much,
much bigger things, and we'll talk about that.
Other witnesses. Of course there was the Defendant's
brother, the people who were paid by the Defense quite
handsomely I submit to you as window dressing for their case.
And then you look at the Government's witnesses, the SBA, the
lenders. They don't know the Defendant. It's just one more
loan application. The contractors, Mr. Joe Beirne, who
certainly didn't want to be here; Mr. Carlos Granda, the
electrical engineer; Mr. Jeff Graff, lifelong friend of the
Defendant; and the victims of identity theft, individuals to
whom the FBI came knocking one day, showed them a document --
in the case of Mr. Cupersmith, many documents -- they don't
have an interest in the outcome of this case.
All right. So let's talk about the crimes here. For
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Yvette Hernandez, Official Court Reporter
400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
wire fraud, the Defendant has to knowingly devise or
participate in a scheme to defraud to obtain money by using
false pretenses, representations, or promises. Those are
lies -- by using lies. And those lies need to be material.
And the Defendant had to act with intent to defraud and then
transmit or cause to be transmitted in interstate commerce some
wire communication to help carry out the scheme to defraud.
And we'll talk about these things.
The Defendant's scheme to defraud. So the Government
doesn't have to prove all of the details that are in the
Superseding Indictment about the nature and purpose of the
scheme. But generally the scheme was to receive CARES Act
money from the Paycheck Protection Program, from the Economic
Injury Disaster Loan program, for his businesses and for
himself by lying about his businesses in order to qualify for
the loans. I mean, that's the basic scheme.
The time period for the scheme to defraud, it starts
in the Superseding Indictment in April of 2020. Obviously, you
heard about the loan involving -- the loan application
submitted by Jeff Graff on the Defendant's behalf, which was
end of March. And then the scheme is charged through the end
of March of 2021. And you've got evidence that extends far
beyond that into September of 2021.
The main loans that constitute the scheme to defraud,
as you heard about the PPP loans for HM-UP Development Alafaya
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Yvette Hernandez, Official Court Reporter
400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
Trails, the PPP loans for HM Management, and there were a
number of EIDL loans that we talked about, but the main one and
the focus of the Superseding Indictment is the HM Four EIDL
loan.
You have the chart of the companies that we've been
talking about to sort of give you a visual depiction of where
they are relative to each other. Obviously, HM Management is
the management company. And then you've got the shopping
center Alafaya Trails, CJUF, the shopping center in Miami. And
the owners, right? HM Four owns Alafaya Trails, HM Six owns
CJUF. Sheppard Flagler Holdings is an owner of an owner. And
you heard about these companies.
Summary of the loan applications. So that's down
here. And this really is to just give you a chronology of what
the Defendant was doing, and I said starting with really what
was at the end of March asking Jeff Graff to submit the loan
application for HM Four, but then what actually made it to
lenders is here starting with the loan to PayPal. Then there's
a series of EIDL loans that he applies for through Nelly
Palancar at Nationwide. Then he goes back on his own with
these owner companies that don't handle operations, HM Six and
HM Four. Then the funding for the PPP program starts back up
again in 2021, and he resumes that with a second round to
PayPal and Cross River Bank.
And what's not on here is what continued, which was in
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Yvette Hernandez, Official Court Reporter
400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
April of 2021, with respect to the EIDL loans that were
actually funded, HM Management, HM-UP, and HM Four, there's the
possibility to obtain a loan increase. So he goes back to
Nationwide and then -- on his own for those three loans, and he
continues to provide false records.
All right. So with respect to the scheme to defraud,
there has to be material lies. "A material fact is an
important fact that a reasonable person would use to decide
whether or not to do something," something that would have the
natural tendency -- oops -- whoa -- that would have the natural
tendency to influence the person's decision. And it doesn't
matter whether the decision-maker actually relied on the
statement.
What are the basic material lies here? Well, with
respect to the PPP loan fraud, wage employees, right? The loan
amount is based on how much you actually pay your wage
employees, divided by 12 months, times two and a half. And
then the question posed to all the lenders was: "Well, you
know, if you provide your 1099s, if you let the lender know
that you actually have independent contractors, what is the
amount of the loan?" And of course they all said the loan
amount is zero. So that's a material lie.
And then, with respect to the EIDL loans, it's for a
fixed cost of an operating business. HM Four is an owner.
It's not an operating business.
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Yvette Hernandez, Official Court Reporter
400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
The Defendant has to act with the intent to defraud.
That is: "The specific intent to deceive or cheat someone,
usually for personal financial gain." Well, I submit to you
everything in this case tells you about the Defendant's intent
to defraud. The very precise, the very purposeful lies on the
loan applications and the supporting documents, the inserting
of wages and all of the things that you've seen, the forged
documents, the absence of real records. You saw that 1099 for
Martin Joe Beirne that they had that they produced. They
didn't produce that to any lenders. Right? The absence of any
real actual records, and of course his personal benefit as a
result of this fraud, all of these things tell you he had the
intent to defraud.
MS. WEINTRAUB: Excuse me. I'm just going to object
and reserve a motion.
THE COURT: All right, then.
MS. JIMENEZ: The knowledge, of course, goes with
intent. Did he know? Was he confused? Gosh. What are
employees? Well, you've got small segments of deposition
transcripts from a deposition in February of 2019, before this
PPP problem came along. Right?
As to Jeff Graff: "He's not an employee. He's on a
consultant basis. Everyone gets a 1099." Another question:
"They're not employees of the company. They get paid to do
tasks. Carlos Diaz is a consultant, not a salaried employee."
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Yvette Hernandez, Official Court Reporter
400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
Question: "Does HM Management withdraw employment
taxes from the employee's paychecks?"
"If they're employees, they do. If they are not, they
don't. They pay payroll taxes. As to laborers, they're
independent contractors. They just get paid. They're not
employees."
His answers were clear. His answers were direct. He
knew who employees were. He knew they got 1099s and that they
were independent contractors. He wasn't confused, like he
pretended to be on the witness stand for days.
The Defendant causes the wire transmission to go into
interstate commerce. The wire transmission itself doesn't have
to be fraudulent, as long as it helps carry out the scheme to
defraud. In this case, each of the wire fraud counts that are
charged do contain fraudulent transmissions. And the Defendant
personally doesn't have to be the one who transmits the wire.
He can cause it to be transmitted. So he can, for instance,
direct someone else to do it, or by virtue of applying
submitting a false document causes the lender to provide a wire
to him, for instance, like a wire payment back to him, he's
causing the wire transmission.
These are the nine wire fraud counts. I don't have
time to read them. But basically Counts 1 through 3 relate to
the HM Four EIDL application. The wire transmissions to the
SBA are to California and Virginia from the Defendant's home.
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Yvette Hernandez, Official Court Reporter
400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
Counts 4 through 6 relate to the second Alafaya Trails
application in 2021 to PayPal, whose servers are all around the
country outside the state of Florida, transmitted from the
Defendant's home.
Then the -- Count 7 and 8 relate to the application to
Northeast Bank, whose servers are in Virginia, again
transmitted from the Defendant's home. And then Count 9 is the
second application to -- for HM Management to Cross River Bank,
whose servers are in Pennsylvania, again transmitted from the
Defendant's home. All interstate wire transmissions. That's
the easy one.
All right. This is really not a whodunit case, right?
The Defendant was the listed representative, the authorized
representative on each and every one of these loan
applications; his driver's license that he carries in his
wallet was submitted for every loan application; his phone
number -- and there was his landline -- his home landline was
on some of the loan applications as well; his main email and
some other emails all attributable to the Defendant.
The lenders, the SBA, Nationwide, all of the email
communication in those loan files are with the Defendant, only
with the Defendant. The text communications that Nelly
Palancar from Nationwide provided, all of her text
communications are with the Defendant. That's who communicated
with them, not anyone else.
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Yvette Hernandez, Official Court Reporter
400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
Of course, the Defendant's home address is listed, his
business address. The Internet Protocol address that comes
back really for all the loan applications, except the four
EIDLs that were submitted through Nationwide because those went
through the Nationwide portal -- but everything else comes back
to the Defendant's home. And then, of course, all of the money
went to the Defendant for his benefit, for his use.
This is a chart showing all of the Internet Protocol
addresses captured. And for the most part, when you -- when he
would log into the portal and submit the information, the
lenders or the SBA would capture the IP address, and then on
the back end with the DocuSigning they would capture the IP
address. What's missing are the four EIDLs through Nationwide.
And then the ACAP loan application, the initial
submission into the portal, they do not capture an IP address.
But the next day they submit an application back to him to
DocuSign, which did capture his IP address. Of course, all the
money goes to him to accounts where he's the sole signer on the
account.
So let me talk a little bit about the bigger lies that
he told to deflect. Because like I said, this is not a case
about who did it. The Defendant pushed the blame on everyone
around him. His longtime accountants of 25 years: "Well, they
gave me this advice that I could apply for a PPP loan, and
everything was fine." His lifelong friend Jeff Graff: "No.
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Yvette Hernandez, Official Court Reporter
400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
He's the one who told me that we should apply for an HM Four
loan, to list a hundred employees, to put all this other
information on the application," where Jeff Graff is the one
who actually requested some sort of indemnity in that email.
Jeff Graff, who is an accountant, has a master's in accounting,
who's a lifelong friend: "No. It's Jeff Graff."
Jeanette Gonzalez, longtime bookkeeper, loyal
bookkeeper of his. Her own daughter was working at the company
with her. The idea that Jeanette Gonzalez, on her own
initiative, is going to generate these false documents on his
behalf, behind his back, for his benefit, I submit to you,
Ladies and Gentlemen, if you use your common sense, that makes
absolutely no sense, but it's part of the blaming of everyone
around him.
And then, of course, Jeff Vasilas. Jeff Vasilas, who
is surely not resting in peace today. Right? Worker for the
Defendant. I mean, he had his own business for sure. But for
those two years, 2020 and 2021, he was his worker, project
manager in Orlando. And then, in 2021, going back and forth
working on that punch list, going in -- going up there to
pay -- to pay the other workers, provide their checks, coming
back to Miami, doing work around the Defendant's house. That's
what Jeff Vasilas was doing.
But no, Jeff Vasilas has the audacity to be in the
Defendant's office, on the Defendant's own computer, and from
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Yvette Hernandez, Official Court Reporter
400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
the Defendant's own computer generating and submitting false
documents for the Defendant on his behalf, behind his back and
for his benefit, in the Defendant's own home, on his own
computer. Again, I submit to you that is ludicrous and does
not make any sense.
All right. Let's go through the loan applications.
Scheme starts roughly in April of 2020. You heard about the
first Alafaya Trails application to PayPal WebBank, which was
funded. April 15th it is submitted, 80 employees. He claimed
HM-UP Development Alafaya Trails, doing business as HM
Management, submits bank statements for HM Management, CJUF.
He submits this, which he claims it's something he saw for the
first time when he was arrested in this case.
And of course, you know -- this is what tells you, I
submit to you, from the very beginning. His knowledge, his
intent to defraud. He knows right from the beginning this has
to do with wage employees only. He includes a column of
withholdings that is entirely made up, no withholdings. In
2019 there were three people working for, of course, the other
company, HM Management, not HM-UP, the applicant. Jeanette,
Vanessa, and Maria, whose wages had withholdings -- of course
those payments weren't turned over to the IRS, but there were
withholdings for three people at a different company.
But here's an entire column of withholdings, a draw
for Eric Sheppard and Jeff Graff of 99,000, which, again, you
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Yvette Hernandez, Official Court Reporter
400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
know the payments were capped to employees and to partners at a
hundred thousand. He knows this. You saw that in the email
that he -- where he's asking his accountants for some kind of
letter saying he made a hundred thousand dollars. He knows
from the very beginning, in April of 2020, what all the rules
are.
Labor report that he submits with the forgiveness
application, which is the following year in 2021. He submits
the application starting in February 2021, before PayPal's
portal is even up. And then it's finally DocuSigned May 2021.
He misspells Jeff Vasilas's name, which is V-A-S-I-L-A-S, but
claims Jeff Vasilas did this.
All right. So after the first PayPal application is
funded for PPP money, of course, the Paycheck Protection
Program shortly runs out of money, he turns to the EIDL
program. And the focus of the Indictment is the HM Four
application, which is chock full of lies. Tells you -- and the
lies tell you -- lies are material because they go to the
operation of the business and it shows you his intent to
defraud.
HM Four is not an operating business. He lies with
these figures about revenues. Of course he lists his wife as
80 percent owner. He submits the false lease, the false bank
letter. And of course he has just received an EIDL loan from
HM-UP Development Alafaya Trails. HM Four owns HM-UP. So now
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Yvette Hernandez, Official Court Reporter
400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
he's double-dipping, right, the company and the owner.
We had talked about HM Six. He applies to HM Six
before HM Four, which you know is an owner of CJUF. He claims
to be a hundred percent owner of HM Six. He's only 50 percent
owner of HM Six. It's to cut out his partner Leon Wildstein.
And then the SBA tells him: "There were one or more items that
were reviewed that caused the SBA to question the validity of
certain information you submitted as part of the application."
So what does he do? He applies as Jennifer Sheppard.
He's denied the HM Six application October 21st, applies as
Jennifer Sheppard on the HM Four application on October 22nd.
You have an aider and abettor instruction, which is
the Defendant is responsible for the crimes of others if the
Defendant aids and abets the other person or if he directs the
other person. So even if he's directing, for instance, his
wife or someone's who's working for him, under an aider and
abettor theory, he's also responsible.
I don't have to go through this. You know Jennifer
Sheppard was not 80 percent owner of the business. You have
the HM Four 2019 tax return and the 2020 tax return. They show
the same ownership percentage. He and his wife are 52 percent
owners. Mr. Kallman is 48 percent owner. That never changed.
You know HM Four is not an operating business. The
SBA told you it's used for capital expenditures, fixed expenses
of a business, not to expand a business, not to fund a project.
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Yvette Hernandez, Official Court Reporter
400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
Mr. Cupersmith told you, Jeff Graff told you, HM Four has no
operations. Just like he testified in the deposition about HM
Six, that it was a nothing, that it was a shell company, same
with HM Four.
The tax return for HM Four for 2019, I just want to
point out, the -- he signs the 2019 tax return for HM Four,
which lists nothing, no rents, no income, nothing. He signs
that October 14th, 2020, and that's eight days before he fills
out the EIDL application for HM Four -- and this is a piece of
it -- listing those gross revenues, cost of goods sold, rental
properties. That's intent to defraud, Ladies and Gentlemen.
As part of that application, you have the email from
Jennifer Sheppard, a/k/a Eric Sheppard, with -- when he
provides this HM Four Management agreement that's been talked
about. The agreement has HM Four as the owner, HM Eight as the
manager. They've shown you the signature block, which has that
reversed; HM Four is manager, HM Eight as owner because they're
trying to show or claim that HM Four manages, has operations.
False.
And of course, the Mattress1One lease agreement, which
we'll talk about. And then -- all right. So then he writes he
owns other non-related businesses and is authorized to speak
about this matter because he handles the taxes and certain
business functions for the company.
The lease agreement. We'll talk about these
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Yvette Hernandez, Official Court Reporter
400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
signatures later. But Maged Salem -- and I'll talk about what
he said also. But Maged Salem, you know from the lease it
doesn't even spell his name correctly. And it's -- all the
leases you have in this case regarding that shopping center --
you have the DICK'S Sporting Goods lease, you have the
Burlington Coat Factory lease -- all of the tenants, their
leases are with HM-UP, not with HM Four.
You have this email communication between the
Defendant and Jeff Vasilas May 18th, 2020, when clearly they're
trying to renegotiate the terms of this lease, and maybe they
come up with some sort of compromise going forward. And the
Defendant sends Jeff Vasilas a document, right? The new name
of Mattress1One is Pacific MS Management, Mattress1One, with
HM-UP -- HM-UP Development Alafaya Trails. He's sending him a
lease he wants Mattress1One to sign, and it's with HM-UP.
All right. You have the original lease with
Mattress1One. Again, it's with HM-UP Development Alafaya
Trails. Mr. Maged Salem's name is not misspelled.
And of course, you have -- you have bank records. The
thing that isn't biased, the thing that doesn't have faulty
memory, the thing that doesn't have an interest in the outcome
of the case are these bank records, right? All of the payments
from Mattress1One go to HM-UP Development Alafaya Trails.
Before the renegotiations that occurred in May of 2020 and
after, all of the payments go to Alafaya Trails.
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Yvette Hernandez, Official Court Reporter
400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
You have the bank letter, which -- and let me just say
a little bit about the materiality. The lease, the bank
letter -- of course the SBA is requesting these things. The
leases -- actually, they requested to provide a utility
statement or phone records, something to show there's a real
business. Right? So the lease is provided for that reason.
The banker's letter. The SBA needs verification of
the bank account. Even though this is not something that
they -- they subsequently requested an actual bank statement.
It's something the Defendant thought that he could use to get
his bank account verified because, of course, he's just opened
this account. It has no money. And Mr. Heimdal Barrios told
you he didn't -- that doesn't look like his signature. He
would not send a letter that's unsigned. And of course, it's
dated on Veterans Day when the bank is closed and certainly a
banker is not going to be working.
And then, of course, he ultimately has to obtain a
bank statement. He deposits 60,000 into the account, removes
50,000 the same day, and writes to the SBA: "This account is
used for ACH or wires to fund the payroll accounts." And of
course Mr. Sheppard couldn't quite answer the question. He was
like: "Oh. That was kind of silly for me to say that." More
lies. More intentional lies.
You've got -- after the EIDL loans, 2021, he turns
back to the PPP program after it's funded again. You've got
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Yvette Hernandez, Official Court Reporter
400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
the second draw application from Alafaya Trails to PayPal
submitted January 19, 2021. Many lies, many documents that are
false. And there's three counts relating to that false --
those false submissions, listing of 80 employees.
And there was one thing that was real that ultimately
tripped up this application. He listed the actual industry
code from his real tax return, which indicated the business was
a landlord of commercial properties, which happened to be a
disqualifier for these types of loans. So the one real point,
the one real fact he put in the application got him
disqualified.
You saw that he -- with his persistence and his
impatience, he submits the information to the portal
January 19. Then he uploads an application January 24th. And
then, of course, there's a moratorium that the SBA places on
applications being processed, and tells the lenders: "Okay.
Process applications with fewer than 20 employees." He's on
it. February 23rd, he submits another application, same
payroll information, but now you drop from 74 employees to 19
employees, so that he can make that cutoff. That's intent to
defraud. That's very intentional, Ladies and Gentlemen.
We heard a lot about these false 941s. You might
remember they were for four quarters. Two of them were typed.
The rest were handwritten. You know that there were no 941s
filed for this company at all, because it had no wage
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Yvette Hernandez, Official Court Reporter
400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
employees, HM-UP, at any point.
And of course, the Defendant's own email that he put
in admits: "I received the 941s for 2020 from our accounting
department and submitted them to the portal." He says that in
his email. He submits them.
And this is the same 941. This is actually two
withdrawal tickets from the HM-UP bank account. That's when
the Defendant goes to the bank, withdraws money, and he
handwrites the withdrawal ticket. I asked the Defendant if it
was his handwriting. Of course he denied it. Jeff Graff told
you for each and every one of these false Form 91s [sic] he
identified the Defendant's handwriting, he identified the
Defendant's signature. You can look for yourselves. You look
at the withdrawal slips. This one, you can look up here. The
bottom one, lowercase, you can look here. You can look for
yourselves.
He submits a false arrest and forged 2019 tax return
that Mr. Cupersmith told you his signature is forged. And he
does that because he inserts wages for a company that has no
wages. Right? Very intentional. $717,000 of non-existent
wages. And this is Mr. Cupersmith's copy of the tax return.
And then this email -- so he -- the 2019 tax return is
submitted -- and you have the records -- February 15, 2021.
Then February 17 they put in an email that he submits the
parent company, HM Four's tax returns. And then there's this
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Yvette Hernandez, Official Court Reporter
400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
email -- because, again, he's impatient, he's persistent --
February 22nd: "Following up to make sure you received my
email with the other 1065s you requested." What does that tell
you? He knows of the false 2019 returns and the other ones
that he submitted, the HM Four. He knows of multiple tax
returns that were submitted. And I didn't put the exhibit
number, but that's Exhibit 82. Exhibit 82.
All right. So this is actually a count. The 2020
Alafaya Trails tax return is a count. Cupersmith's name is
misspelled. Of course, Mr. Cupersmith denied that he signed
this. And just like the other ones, it has the false entries
for the wages. And then here you've got gross rents that he
dropped to pretend that he had a 25 percent decrease in
revenue, which was a requirement for round two of these loan
applications. The 2020 tax return had not even been filed as
of June 2022.
You've got the gross wages. Again, listing wages.
Very intentional for people who were just paid contractors.
You saw the false Florida Department of Revenue forms,
which there weren't any for this business. And then, like I
said, ironically, PayPal denies the loan application based on
the one piece of true information he provides from his tax
return. He puts on the application that he's a landlord.
But he's not deterred. He turns around to ACAP SME
Northeast Bank, submits the same information, but now changes
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Yvette Hernandez, Official Court Reporter
400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
the industry code for his business, very similar information.
Of course he's lowered the number of employees to 19 to get
below the moratorium number. This is the submission to the
portal with the reduction in gross revenues, 19 employees.
He submits a false 491 here. It's actually different
from the one he submitted previously to PayPal, and you can
compare them. He submits a false Form 940. And then, of
course, this is the return -- exact identical return he submits
to PayPal, but now the business code has changed. Same
forgeries on these tax returns.
You know, there wasn't actually a decrease in rental
income, as actually the rental income went up. This is his
lecture to you about accrual versus cash method that he's very
familiar with, although he doesn't know what wages and
employees are.
So here you can look at the tax return forgeries. He
submits the same one, like I said, to PayPal and Northeast
Bank. And he told you, well, gosh, that's not his signature,
so somebody else is doing this. Well, you can look for
yourself. His signature was not always the same. These are
Amerasia signature cards when he goes into the bank and opens
the account. Same year, 2021. You can look for yourselves
whether these signatures are similar.
All right. That application is actually funded. And
for ACAP SME Northeast Bank, he has to DocuSign twice,
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Yvette Hernandez, Official Court Reporter
400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
March 12th and March 25th. And interestingly, March 12th and
March 25th are also dates that relate to the Cross River Bank
applications, which we'll talk about in a moment. And he says
that he was here to DocuSign this one but didn't do the Cross
River Bank. And we'll talk about why that is.
HM Management loan application. In January, when he
applies to PayPal for HM-UP, he also applies to Cross River
Bank for HM Management. That HM Management application doesn't
get processed. So again, he's persistent. He comes back in
March.
March 12th, Cross River Bank's process was a little
bit different than the other lenders. With Cross River Bank,
you go into the portal, provide your information, but you also
have to upload your documents at the same time and submit them
all together in one submission. So all the false documents got
submitted at once, which is why he says: "Well, gee,
March 12th I DocuSigned the Northeast Bank, but I certainly
didn't do this."
You've got the false 940, the false and forged tax
return, which Mr. Cupersmith told you he had not signed for HM
Management. And of course, this is prepared in February. He
prepares tax returns, and his date for this year is actually
December of 2021. No record of filings for these tax returns
with the IRS. And Cupersmith's own copy of salaries and wages
is 2,456, instead of 815,000, which is actually the same figure
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Yvette Hernandez, Official Court Reporter
400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
that he provides with the Northeast Bank application for HM-UP.
You can look at his signature. Again, this is a
different Amerasia account, also opened in 2021. You can see
whether the signatures are similar. You can see for yourself.
All right. That application is signed March 25th,
2021.
Construction Service X -- there was one thing I wanted
to talk about that I skipped over. February 26th, which was in
the ACAP -- the ACAP -- yeah, it's this one.
Nope.
Well, it's too far back. It's the false tax return
February 26th to PayPal. He shows you, if you remember, his
daughter's basketball game February 24th, but says: "No. The
championship is later, and I was still in Lakeland, Florida,"
which it's odd that he's got a photograph of February 24th, but
the actual championship, which he says occurred later, there's
no photograph.
All right. And then, as I mentioned earlier, after
these PPP loans are funded in March of 2021, he's still
persisting. Now he turns back to the EIDLs. He goes back to
Nationwide to get -- for the loans that were funded, the EIDLs
that were funded in 2021, you can get a loan increase up to
$500,000. So he starts working with Nationwide on that. And
you have documents, false documents, from September of 2021
that were submitted for those loan increases.
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Yvette Hernandez, Official Court Reporter
400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
HM Management and Development, he lists Jennifer
Sheppard as a manager with a forged Jeanette Gonzalez
signature. HM-UP Development Alafaya Trails, Jennifer Sheppard
is a ten percent member. She was not. Jeanette Gonzalez's
signature, forged.
I'm showing you -- this is actually a clip from the
bank records, with a check written by Jeanette Gonzalez,
endorsed -- that is, cashed by Jeanette Gonzalez. This is
Jeanette Gonzalez's signature, Exhibit 39-5. Okay? These are
the Defendant's forgeries, September 2021, long after Mr. Jeff
Vasilas has passed away, which happened in early August of
2021.
Aggravated identity theft. Defendant has to transfer,
possess, or use another person's means of identification
without lawful authority in relation to the wire fraud. And
we'll talk about what those counts were. Aggravated identity
theft requires a genuine nexus. The use of a person's means of
identification -- there has to be a genuine nexus between that
and the predicate offense, the wire fraud.
The means of identification must be a key -- it should
say: "A key mover in the criminality," meaning that it must be
used in a manner that is fraudulent or deceptive.
These are your aggravated identity theft counts:
Mr. Maged Salem's identity, used in the submission of the
Mattress1One lease to support the SBA application for HM Four;
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Yvette Hernandez, Official Court Reporter
400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
Heimdal Barrios's letter, also with the submission of the HM
Four application; Neal Cupersmith's identity, used on those
false tax returns that had false wages for the PPP loan
applications to PayPal, Northeast Bank, and Cross River Bank.
Mr. Maged Salem told you he didn't sign that lease, he
initials every page. There was one lease with the true
landlord with Alafaya Trails. There was probably some
renegotiation in May of 2020 with the store manager or someone.
And you saw that there was a check with a larger amount for
some of the back rent that was owed, but there was no lease
with HM Four. And of course, the fake lease supports the SBA
core requirement that the business have operations.
Heimdal Barrios's letter. He testified he didn't
recognize the signature, didn't authorize anyone to sign for
him. It's dated on Veterans Day, when the bank is closed, when
he's not working.
The account verification letter on his behalf, he
would indicate only the signer on the account. And of course,
it was only Eric Sheppard on the account. And of course, the
SBA needed to verify the account.
All right. Neal Cupersmith's identity on those forged
tax returns. It doesn't -- aggravated identity theft doesn't
mean that the lender has to say: "Oh, geez. I see Neal
Cupersmith's signature on these tax returns, I better approve
them." That's not what the law requires. These tax returns
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Yvette Hernandez, Official Court Reporter
400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
lend credibility and reliability to these false tax returns
that he's providing.
I mean, he's a business claiming, you know, a million
plus of gross revenues. It's not going to be a TurboTax. It's
going to be a tax return with an actual accountant preparing
the return. And so it's used in the fraud. It's used in a
manner -- the means of identification is used in a manner that
is fraudulent or deceptive. It is to lend credibility to his
applications.
All right. These are all of the wire fraud counts,
the aggravated identity theft counts, which I don't have time
to read. But -- so I'm going to sit down now and give you
folks a break from me. But at the conclusion of this case, or
after the Defense speaks, my colleague is going to speak to
you, and we're going to ask you at that time to return the only
verdict that is consistent with all of the evidence in this
case, and that is a verdict of guilty on all 14 counts.
Thank you, Ladies and Gentlemen.
THE COURT: Thank you, Ms. Jimenez.
And Ladies and Gentlemen, as I did advise, we're going
to take a 10-minute recess.
COURT SECURITY OFFICER: All rise.
(Jury not present, 11:08 a.m.)
THE COURT: All right. Just for purposes of timing,
you have 13 minutes that will be added to the close close.
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400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
MS. JIMENEZ: Oh. Look at that. I flew.
THE COURT: All right. We're on a 10-minute recess.
(Recess from 11:09 a.m. to 11:20 a.m.)
THE COURT: All right. Welcome back.
Let me acknowledge the presence of the Defendant.
Are we ready to continue?
MS. WEINTRAUB: Yes, Your Honor.
THE COURT: If we could see if they are all ready to
go.
Thank you.
THE COURT: Ms. Weintraub, are we ready to proceed
or we need a few minutes?
MS. WEINTRAUB: No. I'm ready, Judge.
THE COURT: A few minutes?
MS. WEINTRAUB: No. Thank you. Thank you, Judge.
That's okay. I don't need to hear me or see me.
THE COURT: Do you need this or no?
MS. WEINTRAUB: (No verbal response.)
THE COURT: Okay.
All right. Let's bring in the jury.
MR. ETRA: Your Honor, did you say there was extra
time or did I mishear you?
THE COURT: It's an hour and a half. They had asked
for an hour o five, and they only -- right. And she only
used -- which gave her till 11:20, and Ms. Jimenez finished at
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400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
11:07.
(Before the Jury, 11:22 a.m.)
THE COURT: All right. Welcome back, Ladies and
Gentlemen.
Please be seated, everyone.
And on behalf of the Defendant, Mr. Sheppard.
MS. WEINTRAUB: Thank you, Your Honor.
May I proceed?
THE COURT: Yes. Of course.
MS. WEINTRAUB: May it please the Court, co-counsel,
Mr. Sheppard, counsel for the Government.
Ladies and Gentlemen, this will be the last time that
the Defense will get to address you. It is the only time that
we are permitted under the rules to address you before you go
back and deliberate. Government went first and the Government
will go behind me, which is the hardest thing in the world for
anybody to sit when the Government goes again. So I'm going to
ask you -- I know it's hard. You've paid attention. It's been
a crazy long trial with breaks that we've all tried to deal
with. But we thank you for your time, your patience, your
attention, and most of all of your service, because without you
obviously the system just doesn't work and we wouldn't have a
system.
To represent Eric Sheppard has been a true
responsibility -- and his whole family, who you've seen here
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400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
every day, day after day -- and that responsibility will soon
be handed to you. You will decide whether or not Eric Sheppard
is guilty or not guilty. So let's review the evidence and see
what's there. Because, to start with, of course I have to
disagree with the Government. I disagree, and I think this is
a very complicated case. I think there was nothing that wasn't
complicated about this case. There were thousands of documents
that you've all had to sit through, that you've listened to,
all new terms. It's a whole different language. Well, for me
it was. I'm sure for you as well.
So to start out with, I'm going to try and simplify
what we've seen and what we've heard in a manner that's more
palatable to people and not just documents. You've heard how
Eric Sheppard is a self-made man, how he was basically on his
own at 17, when his mom was hit-and-run. Nobody handed Eric
Sheppard anything. And what's important about Eric's
background, something that -- he learned to work hard, and he
always has. Nobody gave him a silver spoon and nobody gave him
shortcuts. Eric has worked hard. That's undisputed. Eric
built his own business from the ground up.
We told you in opening that there was going to be
evidence that certain funds -- certain loans were funded in
this case, and that the money was all used for proper purposes,
and we proved that to you. I told you in opening statement
that you were not going to hear about any fancy cars, or fancy
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400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
boats, or luxury items that you've heard fraudsters make use of
these loans with. You didn't hear any of that. What you heard
was that Eric Sheppard used the loan money that he got to pay
workers and to get the work done. It was used for its intended
purpose.
Now, the Government wants you to think that this is
about a rich guy who just wanted to get richer. And you know
what? That's not a crime. We are in the United States. There
is nothing wrong with somebody who has money taking advantage
of a program that he's entitled to take advantage of. He was
just as entitled as any other business owner. There were no
exceptions for how much money you had in the bank or how much
was available to you if you'd borrow other money.
The evidence in this case is all about the Alafaya
Trails shopping center. It's in Orlando. It's huge. It's
between 25 and 32 acres of built property. That's
unbelievable. You heard how Eric saw this property and built
it from his vision. He took out a $22 million loan, a mortgage
on the property that you're looking at right here. It was
basically swampland when he saw it. He knew that was a
fabulous location right near UCF, right on Alafaya Trails
Boulevard, and he knew this would be a great place for a
shopping center, and he was right.
The Basis loan, the $22 million loan, is a loan that
he took out, and he has been paying back $90,000 a month every
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400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
month for almost 10 years now. He's obliged legally to pay
that. There's no grace for COVID. There was no grace for
COVID in building Burlington. You would think it would have
been built into these leases. But who could have built in a
pandemic? Who would have thought there would be a pandemic
where these courtrooms would be shut down? There were no
jurors. Our offices were shut down. There were no schools
open. The banks weren't open. Stores weren't open. Stores
weren't paying rent. Restaurants weren't open.
It's really crazy to remember that just a couple of
years ago we were wiping off food before we brought it into the
house, taking our shoes off, making sure that our clothes were
okay, taking showers so that we didn't have any germs on us.
It was crazy. And yes, thank God, now we're back here in a
courtroom, and things seem more normalized, but let's remember
that when all this activity was going on the world was not
normal. Nothing was normal. Eric's life was not normal. None
of our lives were normal. That's not an excuse. It's an
explanation. Because we have to keep things in context.
Working at home remotely by yourself is not the same
as working with a staff and yelling: "Jeanette." It just
isn't. Things don't get done the right way. Mistakes were
made. That doesn't make it criminal.
Think about what Eric had to do to show that he was
prepared to take on that loan and qualified to pay it back.
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400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
Think about those huge binders that I showed Jeff Graff, that
his bio is one of, just to get a different loan.
So let's talk about this vision of Eric Sheppard's.
In 2018, the shopping center was thriving. Toys "R" Us -- he
has huge anchor stores. You heard him. He's been fortunate to
develop and nurture national tenant retail people. But they
wouldn't do it just because he's a good guy. They do it
because he delivers a great product for them. Toys "R" Us goes
up and is doing great. DICK'S goes up, doing great.
Mattress1One is there. There are other stores that are coming.
Sixty-thousand-foot store. Toys "R" Us goes bankrupt, goes out
of business -- this is not good -- a hundred thousand dollars a
month in rent gone.
November 2019 Eric is fortunate to negotiate with
Burlington Coat Factory. The Government says this isn't a case
about Burlington. Yes, it is. Because that's what the project
started out to be in COVID, and that's where these things
happened. Burlington was a 60,000-square-foot store, and he
negotiates that they would be able to come in May 2020. He's
got just a few months' crunch time to turn this around. And he
accepts that challenge because he's determined to get it done.
And you heard even Graff had to admit Eric Sheppard has never
walked away from a project, never, not even with Canyon Ranch.
He didn't leave people in a lurch. Eric Sheppard follows
through and gets it done.
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Yvette Hernandez, Official Court Reporter
400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
November and December 2019, Eric's focus was on
Burlington. He's meeting with subcontractors. He wants to get
people moving. Eric is meeting in the Miami office at Biscayne
Boulevard that you heard about. He was working with Jeff
Graff. He was working with Joe Beirne in Orlando. And then
Jeff Vasilas is coming around.
Demolition starts on Burlington. You've seen the
video. Things are moving. This wasn't just a situation where
they just took out a shelf and put on a new one. They had to
renovate, redo, tear up, and remake this entire store of 60,000
square feet. That's larger than a football field.
Just before COVID there are five things going on for
Eric, the Burlington build-out that I just mentioned, phase
3 -- this is -- the shopping center is being built in phases.
Phase 3 -- it took five years to get the approval -- after
loan, permits, zoning, inspections, five years. And they got
the approval for phase 3 in January 2020, before COVID. In
January 2020 he starts dealing with new tenants to come in for
phase 3. You heard about Amazon Fresh. You heard about all
the other tenants that -- Marshalls, Home Goods -- that he had
leases with in January.
The third thing that he was dealing with, the Chase
Bank. March 10th -- before the shutdown, March 10th there's a
lease signed with Chase. And what did that encompass? That,
we know, led to Indianhead Trail. And that -- Indianhead Trial
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400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
is just a word for the road that had to be built. You saw
pictures of what we had in. Even Eric gave his testimony that
Eric was actually helping build that road.
Why were they building a road? They had to. It was
required by the county, who could obviously shut them down --
it was required by the county that if he built an additional
outparcel there, he would have to permit and make arrangements
for another road for traffic. And so it was Eric's
responsibility, which, of course, he accepted, to get that road
built. But again, that was dealing with more stuff that had to
be done.
Now, he was also dealing with the effort to replace
this deadbeat tenant Mattress1One, who just wouldn't leave and
they're not paying rent. We'll come back and talk about
Mattress1One. But for now, those are the five things that Eric
is dealing with.
He's going back and forth from Orlando to Miami, doing
his best with Jeff Graff, but things aren't moving as fast or
as well as he wants. And Jeff Vasilas starts getting in Eric's
ear. Jeff Vasilas sees an opportunity to jump on Eric's
coattails, like a lot of other people we've heard about.
Who is Jeff Vasilas? Jeff Vasilas is the guy who
owned a strip club named King of Diamonds. We've heard a lot
about it. It was on Miami Gardens Drive. And he did all the
construction -- he did all the renovation for King of Diamonds.
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400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
He knew the construction business. He knew how to get things
built. He had people that would work for him. So he starts
saying to Eric: "I'll get this done. I'll move up to
Orlando." He had no problems, whereas Jeff Graff, you heard,
wasn't going to leave and move to Orlando.
So let's pause and think about what was going on with
this person. Eric told you that his lawyers suggested to him
that he buy the property, and it was a great location, where
the Strip of Diamonds [sic] club was. Not to buy the Strip of
Diamonds, to buy the property. The business was going out, but
they were going -- he and Rob Kallman were going to buy the
property and renovate that. They were maybe going to make
apartment buildings. They hadn't even come to what they would
use it for. But it was a great location.
What happens? The deal falls through. Deposits are
put down and Jeff Vasilas winds up owing Eric Sheppard money.
Jeff Vasilas knew what was going on. He sweet-talked Eric, and
Eric bought it hook, line, and sinker.
Now, at the same time he's telling Eric: "I can go up
there and get this stuff done on Burlington, no-brainer. I'll
move up there. I've got guys that I'll bring up from Miami to
be subcontractors." By this time, COVID is coming. And Eric's
inner circle, to tell you honestly -- Rob Kallman, who you
heard from, and even Jeff Graff -- told him they didn't like
Jeff Vasilas. They didn't trust him and they didn't like him.
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400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
But it fell on deaf ears because Eric was determined to get it
done. He also told you that he believed in second chances. He
kind of liked the underdog. He liked the gruffness of Vasilas,
and he said: "I trusted him."
So what happens? Eric's under tremendous pressure.
He needs to get this built out by May 2020. And Eric wanted to
get it done, and he lets Jeff go. Jeff goes up to Orlando and
COVID hits. COVID hits big and bad. Burlington is shut down.
Everything is shut down. Now, Eric's business undeniably,
irrefutably, was impacted by the closing of the stores, not
getting rent, by COVID. Eric was obliged to be still paying
the Basis loan back at $90,000. COVID hits his office. He has
to get out. He's got nowhere to go. Goes to his house.
You've also heard that Eric is not exactly the most
organized or neatest person in town. And you have seen
pictures of that, stacks of papers everywhere in his office and
the house. But that's what they're left with. So they have to
leave Biscayne Boulevard. Nobody wanted to come into the
office anymore. Everything is put in big storage and is taken
to his house.
There were tenants that were in place for phase 3 that
are canceling. They want to delay. They don't want to move
in. Nobody knows what's going to be. Nobody knows if this
COVID thing is going to last, how long. Nobody's going to make
investments right now. And they're losing workers from the
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400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
subcontractors that are shutting down. They need people to
work.
On top of all that, Jeff Graff, his friend of 20
years -- or his friend -- sorry -- of life is leaving after
working for him for 20 years. He took a job as the executive
director at his synagogue because he also figured: "This is a
great job. I can make good money and I have security for my
family." And honestly, it was probably the right time for him
to leave because things weren't getting done.
So Jeff Graff leaves and Eric is by himself. You
heard about Jeanette Gonzalez. She's at her home, working
remotely. She's got severe asthma. We know that Mary Ataca
went back and forth between Eric's house and Jeanette's house,
bringing back and forth checks and other papers. But let's
focus back on Jeff Graff.
Jeff Graff is the guy that he grew up with, and Jeff
Graff is the guy that they bring in here to be their
handwriting expert. Now, the first thing that Jeff Graff tells
you is that he goes -- he came in as the CFO and stopped being
the CFO and stopped doing anything with the accounting side
because he wanted to go to the development side. The only
problem with that was that he wasn't too good at it. Jeff
Graff tells you he's got equity in deals that Eric gave him
because he founded and started working as the dealer on the
Arundel deal.
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400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
Well, that would have been fine, except that we have
the tax returns that showed: "What are you talking about?
Eric Sheppard gave you that equity because that's who Eric is."
He had given it to the two guys who were working on it, and
there was 10 percent there. And Eric said: "You know" -- to
Rob Kallman, who you heard from: "You know what? Let's give
it to Graff now." Ten percent. He got a check for $122,000.
That's a lot of money. But he didn't find it. He didn't start
that deal. He was just tooting his own horn. You-all knew
that when I showed him the tax return from six years earlier,
when it was really started. He lied.
We brought you evidence. We brought you Rob Kallman
who talked about it. Jeff was on the sidelines watching Eric
skyrocket, and he wasn't. He said he went to the development
side and he no longer did any of the accounting. But we know
that was a lie. Eric relied on Jeff until the day he left, and
even after.
Jeff's biography in 2017: "His duties have included
and currently include development, management of, and
accounting for the company's one-million-plus square feet of
commercial properties." That's a lot of properties.
"Mr. Graff is also responsible for coordinating and
accounting for the projects in the acquisition, development and
construction phases."
Jeff Graff was always working as a financial advisor.
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Yvette Hernandez, Official Court Reporter
400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
We also know from one week before he left, on
March 22nd, 2020, Eric writes an email to Jeanette and Eric --
from Eric on behalf of Eric, Jeff Graff -- to Jeff Graff and
Jeanette: "Income and expenses March 2020. I understand,
Jeanette, you have the information in your computer and Jeff
sits with you to go over it." And Eric is saying to them:
"Hey, I need these documents taken care of. I need these
documents and the REA, the real estate agreement. I need
everything to be managing the assets properly. You guys need
to be taking care of this. What's going on?"
Of course Jeff Graff was still involved. But he comes
into this courtroom with all of his feelings on his sleeve.
Jeff was jealous. He was hurt. He watched Jeff Vasilas push
him out of where he wanted to be, because Jeff Graff wanted to
be the bigshot in Orlando, but instead Jeff Vasilas got that
job.
And what did he tell you? He tells you that Eric one
day, years ago, made him a 1099 employee. Really? Do you
really think, after everything you've heard in the past several
weeks, that Eric Sheppard went to Jeff Graff to give him a tax
benefit, which he had no idea he would get? And even though he
has the other W-2 workers, Jeanette, Vanessa, Elva -- you heard
about other W-2 employees that were there. Why would he just
take Jeff Graff and say: "Be a 1099"? That doesn't even make
sense.
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400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
Eric testified, and told you, Jeff Graff one day came
to him and said: "Listen, I'm making my own company, Graffco,
and it would be good for me for tax benefits. Can I be 1099?"
Eric doesn't care. He said: "Sure." What does he care?
That's what makes more sense.
Now, Jeff Graff is the CPA. He's the one who has a
master's in accounting. He's the one who's getting the
benefits. Benefits? Boy, did he get benefits. Remember what
we showed you? We showed you he started taking a salary.
Instead of the $150,000 that he was given, he wrote $15,000.
At first I thought it was me and a zero was missing. No. He
was cheating and defrauding the government for 10 years.
Remember? And he was, I think, kind of surprised that we
caught him.
But he was forced to admit that he's been defrauding
the government every year for 10 years for over a million
dollars. He's the guy they brought in to testify against Eric.
I don't know. Maybe he's not going to get prosecuted for that
fraud.
Jeff Graff came into this courtroom, and he did tell
you that Eric is not good with the computer. He told you that
he does rely on people too much and all the time. And he also
told you, and had to admit, that he often signs things that he
doesn't sit and read. I think you've all gotten a pretty good
idea of Eric Sheppard. He's the one that's not reading, that's
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400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
got a thousand things going at one time, that Glenn Sheppard
described to a tee of him walking around in circles on his
phone and going around the block. That's who Eric is. He's
making deals and getting things done.
Eric believes when COVID hits he's eligible for these
loans. We all start hearing about stuff. Nobody really knows
what the rules are because, of course, the rules were changing
every day. But we know that Eric asked Jeff to help him with
that HM Four application. Now, while Jeff is filling out this
application, and getting all the documents together, Eric gets
an email from a guy named Waserstein March 30th, 2020. The
dates are really important.
And on this email there are a bunch of attachments
with information all about these loans. And Eric has one
question for Graff: "Hi, Jeff. I received this from Was.
Please let me know if this makes any sense or if we need to
modify anything." That is Eric Sheppard's intent. That is
what's going through his mind. "Are we compliant? Are we
good?" He asked Graff right then and there: "Do we need to do
anything?"
And you know what happens here? This is really
important. What happens here is one of the first Government
games. You know how this came into evidence? Let me remind
you. This email did not come into evidence. The Government
brought the attachments that were being sent from Eric to Jeff
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Yvette Hernandez, Official Court Reporter
400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
Graff and asked him all about the attachments, making it seem
and implying to you that Eric was sending all this information
about the SBA loans to Graff, like: "Take care of this," like
he knows all about it and did all this research. Nothing could
have been further from the truth.
The Government didn't bring you this email. We did.
And the email says: "Let me know if we need to change
anything." That, they didn't want you to know. Because that
was his intent from day one.
Jeff Graff, the handwriting expert. They also tell
you that Jeff Graff told Eric not to apply on HM Four. Well,
that also didn't make sense. And that was something new that
he also didn't tell the FBI in all those interviews and
discussions. But Jeff Graff came into court and said that.
Now, Jeff Graff is the meticulous, like brainiac kind
of guy. He memos and writes everything. I even asked him:
"Do you memorialize things in writing all the time, anything
that's important?"
"Absolutely."
Well, did you see any memos about him telling him not
to do it? Nope. You know what you did see? The opposite.
You see that Jeff Graff fills out the application. And what
does he do? He writes to Eric: "It's been done," wishing him
good luck. That's what he says. "Let me know when you get the
email confirmation, and good luck." That's what he wrote. He
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400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
didn't write: "Don't forget you can't get this," because that
didn't happen. Jeff Graff never told Eric: "Don't apply."
Jeff Graff never said -- with his accounting background and
reading whatever -- because maybe it wasn't true at the
beginning you needed W-2. But nobody's telling Eric: "You
have to have W-2 employees." His closest people, in his circle
for 20 years, that have accounting background, and nobody's
telling him.
So why did the Government call Jeff Graff? They
called him because they don't have a handwriting expert. Gee,
you think that would have been good in this case, when they
keep saying about all these signatures, who signed what and
where. Do you think they should have called a handwriting
expert? Do you think you're entitled to proof beyond a
reasonable doubt or you should guess about what Graff is
saying?
Of course graff is also admitting that Jeanette is
signing his name on checks. He's also admitting that he's
notarizing stuff that other people signed on Eric's behalf. We
know when Jeff Vasilas did signing his name on personal
guarantees that was not with his permission. We know people
were signing Eric's name. We know. So shouldn't we have had a
handwriting expert? There are two reasons why you didn't have
a handwriting expert. One, the expert couldn't say what they
wanted. Think about it. Why else wouldn't they bring an
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400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
expert? Why else wouldn't they bring you something that would
be a slam dunk and show you? Because they don't have the
evidence because it doesn't exist. The handwriting expert
either couldn't give it to them or said: "Can't tell." Either
way -- either way, you were entitled to an expert opinion.
Now, the Government recognizes that there are
different signatures, and that's also interesting. Different
signatures. First, they wanted you to think that he was like
doing it differently on purpose. Why would he do that?
Second, then they show you signatures from years back, which
also don't match up, by the way. So they settled for Jeff
Graff. The Government's case is throwing what we call
proverbial spaghetti on the wall to see what sticks, anything.
You heard about a whole bunch of things that have nothing to do
with what's in this Indictment that you're going to look at.
But they settled for Jeff Graff.
And what did he tell you about those handwritings --
signatures? He told you things like: "Yeah. Looks like
Eric's signature." Looks like? This is a criminal case.
These are really serious consequences. His freedom is at
stake. Looks like? And then he said something that was
beyond. He said: "Those numbers, well, some of them are
consistent with." Consistent with? This guy is watching too
much "Law & Order." "Consistent with" is a legal concept.
Either he picked it up from hanging out with the Government or
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Yvette Hernandez, Official Court Reporter
400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
TV. But it's not something that normal, everyday people say.
Why? Because he's a hurt, angry guy. He's upset.
For some reason he thinks he's entitled to be what Eric is,
just because he grew up with him. Eric has always taken care
of him. Think about his salary. $150,000, he tells you that
it was his salary. "Is that all you make?" That's what he
told the FBI.
"Don't you get a new BMW every year?"
"Yes."
"Don't you get health insurance, not just for you but
for your wife, your whole family?"
"Yes."
"You think that's worth something?"
"I guess."
So it's closer to $200,000, and you punch a clock nine
to five, Monday to Friday. Sounds like a pretty good job.
Plus, he gets a deal here and a deal there, a hundred
thousand on Arundel, $122,000 on the Kentucky deal. He's
riding pretty high.
The Government brought him here to talk about things
that have nothing to do with this case, that he was mad that
somebody signed his name and he was going to do this Mala
nightclub thing, which you heard about. I'm not even going to
get into it. The bottom line is, is that somebody signed for
Jeff Graff. Wasn't Eric. And there were two people that had
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Yvette Hernandez, Official Court Reporter
400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
signatures for Jeff Graff, the engagement letter for the
lawyer -- and think about it. He said that he never saw Eric
sign "Jeff Graff." But he comes in here and says: "Yeah.
Jeff Graff. Yeah, that was Eric." Where is he getting this?
But he's not charged with that, nor is he charged with
forgery, nor is he charged with anything connected to the
signatures. I mean, maybe Jeff was just getting back at him.
Nobody's telling Eric that he didn't qualify. And
there's an email that we have to talk about from Neal
Cupersmith. Neal Cupersmith says: "Applying can be a daunting
process." Daunting. And that's from an accountant.
We have to talk about April 1st, 2020. Eric emailed
Alex Zaslow, who you finally heard from in rebuttal, who you
probably should have heard from from the get-go --
MS. JIMENEZ: Objection.
THE COURT: The basis of the objection?
MS. JIMENEZ: (Inaudible.)
(Court reporter interruption.)
THE COURT: I'm sorry. I can't hear you, Ms. Jimenez.
MS. JIMENEZ: Commentary on the order of witnesses.
THE COURT: The objection is overruled. You may
continue.
MS. WEINTRAUB: Because he was the one who did all the
tax returns for the past seven or eight years, because he's the
one who prepared the tax returns that had the SBA loans on it
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Yvette Hernandez, Official Court Reporter
400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
that Neal Cupersmith, his partner, didn't even see. But that's
who they brought in to testify.
He writes to Neal Cupersmith: "I am applying for some
of the government programs." Now, Zaslow and Cupersmith have
been his accountants for 25 years. Some years they filled out
as many as 30 or 40 returns. Don't you think they have some
kind of fiduciary obligation here? Don't you think that they
should think: "He's a pretty darn, you know, good client. I
should take care of him"? Don't you think they should reach
out to him? Don't you think that he would expect if
something's wrong with him doing a government loan that he
would be told by his accountants? Wasn't that reasonable for
Eric to think? Of course. But Zaslow doesn't think that.
"No. We didn't tell him anything. We got the email, we knew,"
and he put it on his tax returns.
They set up a conference call to talk. Remember,
that's a conference call that Neal Cupersmith said never
happened, until we showed him an email where he is saying --
Zaslow says: "Neal and I just tried to call you, and the
conference call is set up for ten o'clock." There was a call.
And contrary to what Zaslow just said, there was a call, and
they talked about the loans, just like what he had sent.
Whether he doesn't remember or not, and how he could testify
from four years ago a conversation that wasn't important about
paying a bill, I don't know.
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Yvette Hernandez, Official Court Reporter
400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
But if that didn't happen, why would Eric, when he
applied for the loan, say: "I need to change something in the
application. I just talked to my CPA"? Does that make sense?
No. He said: "I have to change something. I just talked to
my CPA," because that's exactly what happened. He had talked
to the CPA the day before, and then he writes it on the loan.
Says right here: "I need to add more documentation
from my CPA to the submittal but the site will not let me,"
because, Ladies and Gentlemen, these portals were not easy. As
Cupersmith said, they were a daunting task. They're hard to
understand. He's not good with the computer to begin with.
And you just push buttons. You can't even see what you're
doing. You don't even see the application until it's sent.
There are a lot of details to show you and to talk
about, and I am really limited on time, and I'm already over.
So let's look and just express to you when you go back there
and look at this Indictment, the Indictment is charging him not
with a million loans that the Government has this nice chart
for, with the guy that came in, that could have -- could have
done an analysis but didn't -- the FBI agent, Hysa, came in
here. And all he did was add up a bunch of numbers literally
and put them on a chart, as opposed to the expert forensic
accountant that we called to explain to you and follow the
money and show you money going in, money going out. That FBI
agent could have done the same thing. He's a forensic
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400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
accountant. But he didn't, because they don't want to know
about money going in and money going out.
In the loans, you're going to see I color-coded it
just for effects. But the Indictment is about four loans, the
HM Four, the HM-UP failed PPP, HM-UP PPP, HM Management PPP
with Cross River, four loans. But rather than go through all
of the loans, I need to discuss the specific allegations of
what's going on.
And right before that, look at this email from
March 23rd. March 23rd, before everything is done, before the
CARES Act is signed, before the government loans are out, Eric
Sheppard is writing, and look what he writes: "People at
Orange County has instructed us that we can't have large
amounts of employees in the building." He doesn't say:
"Workers." He says: "Employees," because that's his language.
That's what Eric Sheppard thinks. Eric Sheppard thinks he's
employing people. They're his employees.
I'm not saying he's stupid and he doesn't know there's
a 1099 and a W-2. I'm saying he doesn't know who gets what.
That's what I'm saying. I'm saying he didn't know which
employees were which because it didn't matter and it wasn't in
his wheelhouse. But to him, they were all employees.
Eric took the stand that he didn't have to take
because he wanted to. Eric took the witness stand and was
cross-examined for almost 10 hours. Was it difficult? Yeah.
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400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
He did the best he could. It wasn't easy. You-all saw. But
he wanted to show you and talk to you. He was on his email in
his home office, he tells you, when he sees pop-ups start
coming at the beginning. Eric's mindset was that he had always
gotten loans before. He went to a bank. He talked to people.
And if there a was question, he called a lawyer or he called a
bank guy. That's what Eric did. That's what he thought this
would be. Wrong.
The uncontroverted evidence is he's very unsavvy with
the computer. And that Maria Ataca, who does his filing,
actually had to prepare a spreadsheet for him as a template
because he didn't even know how to do a template. And by the
way, while we're mentioning Maria Ataca, the Government -- all
throughout their case they told you: "Well, 1099s, it
wasn't for" -- "you couldn't have a PPP loan if you had 1099ed
workers because they're entitled to get their own, and they
apply and do it separately."
Well, wrong again. Maria Ataca told you that she had
another business, and that she did apply for a PPP loan and she
was flat out rejected.
So again, you know, it's easy what the Government has
these witnesses say that are sitting, you know, high in their
thrones, in their corporate offices, that didn't actually do
these loans. They bring in these supervisors at the top level
that have no personal knowledge of anything. They bring them
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Yvette Hernandez, Official Court Reporter
400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
in to say how it should have worked, what should have happened
when I saw this application. Do you know if that happened?
Nope.
So is that the evidence beyond a reasonable doubt that
you-all want before you can take his freedom? Aren't you
entitled to the people that were doing the work, that were
making decisions, to ask them why, or are you going to take a
supervisor saying: "Well, he must have meant this"? Really?
Let's discuss this W-2 versus 1099 head on. You heard
Eric testify that he looked at the workers as employees. You
heard that the Government has cherrypicked a couple of lines
from a multi-day deposition in a civil case that he had to
prepare for, and that's what you saw. Whether or not Eric
remembered how he was prepared for that deposition regarding
the 2016 lawsuit in 2020, that's just crazy.
And what about that depo? There is something about
that depo we should mention, right? Because again, the
Government changes its colors. But that case was about Leon
Wildstein suing Eric Sheppard and losing. He was sued for
fraud, and he lost, and he was mad because Eric countersued him
for fraud and won seven figures. Wildstein, you heard the
testimony, threatened he would get Eric back and he would have
the FBI go after him.
And guess what? Here we are. And guess what else?
Wildstein's lawyer sits in the back of that courtroom every
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400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
day. You've all seen him taking notes, not being happy that we
have outed him now. And he spends time with Sarah Halleran,
the FBI agent, who you also see here. And you have seen them
chatting, chatting, and exchanging notes every single day that
we have been in session. What his connection to the FBI is, I
don't know. It's not a coincidence that we're here.
But back to the W-2. Jammie Hutcheson about W-2
versus 1099: "So there's nothing in the portal telling the
applicant it has to be W-2, correct?"
Answer: "Correct."
Jammie Hutcheson admits: Nowhere on the portal. So
how does she know what the loan processor was thinking or
relying upon? Did she have any information? No.
Philip Palmer. He came him in -- the IRS agent. He's
an expert from the IRS. And what did he tell you? As an
expert, he even made a mistake. And he understands, whether or
not they file 1099s for them or W-2s, small business owners
confuse the words and terms interchangeably.
Let's go to the second page.
"The word 'workers' by itself means it can include
independent contractors, right?"
And what does Mr. Palmer say? "It can. Correct."
It's not on the portal. Everybody came in here and
said: "Well, they know that you got to be W-2." And Mr. Etra
must have asked every single witness 10 different questions
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Yvette Hernandez, Official Court Reporter
400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
west of Sunday: "Is it there? Do they know?"
"Uh, no. Well, they should have known. They had to
go to the regulations."
Really? That was in what they call the CFR, the Code
of Federal Relations. I have one because I'm a lawyer. I'm
sure nobody else in this room does, except the other lawyers.
Who would go look up guidelines? One of these witnesses
actually said that the applicant was supposed to go and look
them up. "Well, were they directed to?"
"No."
"Were they told to?"
"No."
So again, from their palace of supervisors, they're
saying what an applicant shoulda, woulda, coulda. And then
they want you to convict him when it wasn't there? If it was
there, we wouldn't be here.
Eric believed that he was eligible for these loans.
The eligibility requirement on the left side of your screen,
it's four questions. And basically it just says whether you
have been barred or disbarred, whether you're a convicted
felon. And then it says: "Continue."
Now, a normal person would look at these three or four
questions, fill them out, answer them, and press the button to
continue, thinking: "Okay. Done with eligibility. Let's go
to the next."
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400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
There's no time period about the employees -- how many
employees do you have -- when Eric filled it out, at first
thinking he's going to need 80 to a hundred employees at least
to get that job done. Even Graff said it would need a hundred
people to get Burlington built. When we look at what the
construction was at Burlington, you can clearly see that it was
going to take a lot of people.
But we showed you more with this first PayPal loan.
Eric is asking for help. He is trying and requesting through
customer service, and he says: "I am the owner of multiple
companies so I need to change the application to reflect
self-employed with employees, and the LLC needs to be changed.
How do I do this?" Is this somebody who's committing fraud and
creating documents? No. This is somebody who's trying to do
the right thing, and he fills it out and says: "Help me."
And Jammie Hutcheson, from on high in supervisor
world, says: "Throughout the course of the PPP program, we
received many contacts, and we were just unable to respond."
Really? Really? One of these people, I forgot who, said:
"Well, we had customer lines available." Are you kidding?
There were no customer service people picking up a phone. "I
needed to add more documentation from my CPA to the submittal,
but the site will not let me." That's Eric's intent.
The SBA was rushing to get the loans out.
April 23rd, 2020, remember we showed you Eric was setting up a
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400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
call with Zaslow. Here it is April 23rd, and he's writing and
PayPal's not responding. There is a scanned, corrected
application and it's ignored. And what do they say -- he's
trying to do it the right way -- "Sorry. You have an
application affiliated with this email so we're not even going
to look at this. You're rejected."
And look, it's right on April 27th, at 12:38, it's
scanned and sent. And at 1:31, what happens? It's funded.
It's funded. The application, with all the wrong information
he's trying to correct, is funded. Because they're just
rushing it out and getting it out. But it shows Eric's good
faith.
The certifications that go on are really important,
and the Government has made a big deal about them. The
government certifications, so we can look at it, talk about
good faith, not accurate a hundred percent under penalty of
perjury like the Government likes to say. Good faith. There
is good faith here. The applicant was in operation on
February 15th, 2020, had employees for whom it paid salaries
and payroll taxes or -- or -- paid independent contractors.
It's confusing. It's not easy to understand.
"And the funds will be used to retain workers."
Check. And that's what happened.
Althea Harris from the SBA. She's the deputy
director. She was the first witness, I think. She comes in
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400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
here from on high and she says: "The applicant must apply in
good faith." And that's what he did. His company had as much
need for that loan as anyone else. And in the Government's
opening, they tell you, basically, it's only intended for
people that are destitute. That's not what the evidence is.
It's not true.
And Althea Harris even testified and told you: "So
you would never say, for example, the PPP program was not for
rich people? You would never say that?"
"Correct."
Again, I mean the Government just plucks things from
the sky. They make things up to appeal to you that are
prejudicial to Eric Sheppard. They want to win this case,
there's no doubt about it, but the evidence isn't there.
Getting back to the charges in the Indictment. Jeff
Graff, at one point, said he told him that he shouldn't do it
with HM Four, even though there was nothing written about that,
because it never happened. If it was fraud, he would not have
signed his name to it. If it was fraud -- "Well, you're not
saying it was fraud to do it that way, were you?"
"No." Because he knew. He knew, and he never said
that it was. But again, he couldn't tell the truth. HM Four,
uncontroverted evidence -- the Government loves to say that
it's a nothing, and all the charts, and one company owns
another company. But you know what? He didn't set it up that
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400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
way. The accountants and the lawyers set it up that way years
and years back. And we know why. Graff testified every
different project, for liability purposes, the bank -- the
bankers who were lending the money want to make sure it's
secure with just one project. They don't want to get tied to a
million different things they can't collect on. So every
project is incorporated separately with a different name.
That's why that happened. And it was a simple
explanation. The Government makes it seem like it was
nefarious and something was, you know, shady or wrong about it.
But HM Four is a real company. It's on Sunbiz.
You saw the real estate agreement. It is a binding
agreement that says HM Eight as the developer can assign the
power to HM Four to manage the CAM. We've all learned about
the CAM. That's what Glenn Sheppard does full-time. That's
the maintenance. This was 30 acres of property. There's a lot
of maintenance to do. You've got parking lots, roads, lights,
plumbing. You've got all sorts of stuff going on at all sorts
of common area places.
A long time ago, Eric Sheppard told Neal Cupersmith
about it, even though Neal Cupersmith said they never talked.
But he did admit that he knew HM Four was a legitimate
operating company. It's convenient that the Government comes
in here and tries to say that it isn't, because Rob Kallman
also told you that HM Four had real responsibilities.
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Yvette Hernandez, Official Court Reporter
400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
HM Four. Brent Motes testified -- well, first Cole
Blakeley from the SBA says: "Send at least two items below
dated prior to January 31st," very minimal requirement. Brent
Motes comes in here, and he looks at the management agreement
that we introduced, that's in evidence -- and we said: "So
this management agreement, that satisfies the requirement that
HM Four was an operational, real company?"
"Yes."
"And it met all the requirements?"
"Yes."
So what are we talking about?
Her Honor has given you instructions on the law. When
you're considering the term of "aggravated identity theft," it
has to be considered with great scrutiny, a special scrutiny.
First thing it says to you is there's an enhanced penalty for
it. So let's look at it really carefully.
"For a crime involving fraud or deceit, the
Defendant's use of an identification cannot be an ancillary
feature of the wire fraud. It has to be a key mover in the
criminality." What does all that stuff mean? It means not
merely as an ancillary feature of the wire fraud. It has to be
a key mover in the criminality, meaning it has to be what's
pushing the fraud, the wire fraud. Mr. Etra asked every single
witness, asked Brent Motes, asked Althea Harris. Not one
witness said that any of these documents, the lease that we're
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400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
going to talk about or the bank letter, were at the crux of any
fraud.
Let's look at what the bank letter is. Two things:
One, bank letter; two, the lease. First of all, there was no
crime here. But what were the lengths that we had to go
through? And what was the Government doing while this was
going on? The Government told you in their opening statement
that they were going to prove that the bank letter is forged
and used without the consent of the author Heimdal Barrios. Is
that what the evidence was? You know better.
Look to the bank letter and the testimony of Heimdal
Barrios. He says: "I've signed so many of them," those
reference letters, "I don't know if I did this or not."
"Are you denying under oath you signed this letter?"
"No. I'm just saying I don't remember."
That's a far cry from forgery and somebody stole my
identification.
But what did he tell you? "I'm the only one with
access to my email."
Once we brought this in, and showed you that, what did
the Government do? Remember, they said it was a fake letter
that Eric created on his computer and sent, right? Then they
start asking questions when we bring in the email. And they're
asking Mr. Barrios all sorts of things. "Well, can the
Microsoft Word be manipulated? Can they change the wording on
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400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
this document?" And they're implying that he totally
fabricated this letter and the email. And then we went to
break. And we thought: My God. It's not our burden. It's
their burden. But look at the games they're playing. They
leave you with the impression that Eric Sheppard, the master of
Microsoft Word in the computers -- that he fabricated this
letter.
So what did I do? We -- we hired a nationally
recognized expert. That, of course, the big cross-examination
was: "Well, when was the last time that you took a class?"
And he starts: "I teach the class."
"When was the last time that you were sitting in
class?"
You don't understand. John Jorgensen still has his
own business today, and -- in four different places, and he
testified he's got NSA clearance, National Security Agency
clearance "For Eyes only." There are very few people in the
whole United States who have that kind of security clearance
for digital data forensics. And the best that the Government
could cross-examine him on is: "When was the last time you
were in class?" Are you kidding?
He was unimpeachable. But more than that, he brought
you evidence that the email was last modified by somebody, and
he said somebody named Heimdal Barrios at SunTrust Bank. And
then the Government now is stuck with this. And what did they
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400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
do? What they always do. They pivot 180. "Okay. So maybe it
was real." Huh? You just said it was fake and fraud and
forged. And now it's real?
And the Government now says: "Maybe" -- "maybe it's
not. Maybe somebody else signed it on your behalf." Do you
remember that? I guess she forgot about the testimony of
Heimdal Barrios, who said: "I'm the only one who has access to
sign into that computer." There's no dispute Heimdal Barrios
wrote the letter.
And interestingly, what did John Jorgensen say? The
timing worked out perfectly coincidently. We couldn't have
known that because we didn't have the expert. Eric Sheppard
told you. He went to the bank, gets the letter, it's printed
out, and he takes it, and that's exactly what happened.
That's an aggravated identity theft with enhanced
penalties that they've charged him with because they didn't
know what they had. And don't you think they should have
investigated that before? Don't you think it should have been
looked at before they charge him with an Indictment and arrest
him?
We, the Defense, with no burden, brought you the
truth. And we brought you an expert witness, something they
could have done too with the handwriting. Because an expert is
unlike other witnesses. An expert's allowed to give his
opinion or her opinion. You don't have to accept it, but
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400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
you're allowed to consider his opinion based on his experience.
Then we have the lease. We also know -- I'm sorry.
You can put it back.
We also know that the letter was never requested.
They didn't even want the letter. They wanted his bank
account, and he sends the letter instead from the bank manager
because that's what he usually did with loans. And what
happens? There's nothing in the record even asking for it,
reviewing it, or relying on it. This had nothing to do with
any loan or alleged fraud -- wire fraud to get the loan. Is
this letter at the crux of the loan? I don't think so.
Mr. Motes testified: "Do you agree with me the letter
was never requested by Mr. Blakeley who was the SBA
representative?"
Something else that happened here. There's nothing in
this letter that talks about Jennifer Sheppard being a signator
on the loan. Remember? Remember Barrios's -- what
Mr. Barrios's testimony was? He said that the FBI agent told
him -- told him -- gave him information. Is that the way they
investigate these days? They tell you what they want you to
say first? Heimdal Barrios said: "The FBI agent told me that
Jennifer Sheppard was not an owner or signator on the account."
And I got him to tell the truth and to say that he said: "But
I don't really have any information on my own about that."
That's scary. And then you want to know why somebody
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400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
wants a lawyer when the Government and these agents come
knocking? That's why.
Let's look at Count 11. In Count 11, the Indictment
alleges that Eric Sheppard knowingly submitted a false
document, and that's the lease from Mattress1One of Maged
Salem. Remember him? From opening forward, they first tell
you again that the lease is fake and forged, it's fraud. Then
we have Maged Salem, as slippery and deceiving as he was.
Remember when he took that stand? This guy couldn't tell the
truth if it hit him in the face. He couldn't answer one
question. Talk about credibility.
First, Maged Salem verifies his signature on the
lease. Then realizes when he goes home: "Uh-oh. I've got $14
million worth of creditors. I just changed the name of a
company so I can get money and defraud the creditors,
circumvent them from knowing about my income. I just admitted
this to the FBI." So he calls the FBI back and says: "You
know what? On second thought, it's not a real lease. It's not
my signature." Huh? Don't you think they should have looked a
little, done a little investigation, Google him at least and
see who this guy is?
They claimed -- I was trying to cross-examine him
about one lawsuit after another, showing you the fraud that
this guy had perpetrated. He admitted to six different
lawsuits, judgments of $14 million. Why did he change the name
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400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
of the tenant? Doesn't take a rocket scientist to realize this
guy is committing fraud. So he changes the name because
Mattress1One -- SOS Furniture, d/b/a Mattress1One, has all the
creditors after them.
The second lie that Maged Salem said was: "That's not
a real lease because I would have initialed every page, like I
do on every legal document I sign."
MS. JIMENEZ: Every lease.
MS. WEINTRAUB: Not true either. We show him a
document, the Tenant Estoppel Letter, where he signed the third
page, and one, two, and three are not initialed, like he said.
They're not.
Then he says: "Well, the third page is a stand-alone
document." I'm going: Huh? What is that? He says: "Well
it's only one page," because I only showed him one page. "Oh,
no, Mr. Salem. Here are the other two pages."
"Oh."
No answer because he's a liar.
You use your common sense. We know from the checks
that all of a sudden the checks are a way different amount of
money for the lease. Well, if you don't have a new lease
telling you you have to pay twenty-two five up front, and
8,000, plus sales tax, then why on earth are you submitting
$8,400, which is the 8,000 plus the sales tax, and a check for
the twenty-two eight for past due rent? Why would you do that?
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400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
The lease is real.
He even said he wasn't being evicted or thrown out.
Remember that? We know better.
(Video:)
"MR. VASILAS: Today, Tuesday, May 12, I, Jeff
Vasilas" --
MS. JIMENEZ: Your Honor -- Your Honor --
(Video stopped.)
THE COURT: Hold on. Hold on.
MS. JIMENEZ: There was no audio to this video.
THE COURT: That's correct. The objection is
sustained.
MS. WEINTRAUB: The video is in evidence, Your Honor.
THE COURT: Yes. The video was in evidence, but we
did not include the audio. So I do agree.
MR. ETRA: I thought the ruling was we couldn't play
the audio. So just go without -- just play it without the
audio.
MS. JIMENEZ: The audio is hearsay.
MR. ETRA: They hadn't listened to it yet.
THE COURT: That's not correct. The objection is
sustained.
You may continue.
MS. WEINTRAUB: According to Brent Motes, the lease
was also irrelevant. If it's irrelevant, and if it wasn't
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Yvette Hernandez, Official Court Reporter
400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
asked for, and it's not relied on and part of the file, then
it's not the crux -- it's not at the crux or a key mover in the
loan.
We asked Brent Motes: "The name Maged Salem, or
whatever the real name is, that wasn't the critical aspect or
crux of this loan application?"
He says: "Yeah, like I said, we trusted it."
"The name here wasn't the crux or key aspect on a
lease?"
"Right. On most lease agreements provided by
applicants, the name wouldn't be the critical aspect." The
name wouldn't be the critical aspect. There is no aggravated
identity theft.
And then we have tax returns. Then we have these fake
tax returns that we told you from day one -- we acknowledged
they're fake tax returns. We don't know anything about them.
For the counts in the Indictment about the fake tax returns,
let's look at what's important. David Toye said the tax
returns weren't relied on either. He said for that loan size
they weren't required to prove by the tax returns because it
was under $150,000. That was the Northeast Bank.
Jammie Hutcheson from PayPal: "Is there any
indication anyone at PayPal relied on that purported tax
return?"
"No. Correct."
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400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
Then we have the Cross River. Although Spencer Lord
claimed to know that he did request some kind of tax return, in
retrospect he was probably talking about something else, the
941s. None of the documents produced showed that a 1065 tax
return was requested or that Cross River even read it.
As far as the tax returns were concerned, nobody was
saying -- every witness -- Jammie Hutcheson, David Toye,
Spencer Lord, Philip Palmer, Althea Harris, the whole gambit,
wasn't required to have an accountant or preparer or sign it.
It doesn't have to be signed by the tax preparer. Most people
don't have a CPA or don't need one. So why would that have
been a requirement? It's not.
Here we have another incident of the Government's
manipulation of evidence. What we have here is the application
for the PPP loan. And you will remember that the borrower had
a choice, loss over the year or compare quarter to quarter.
And you have to be -- you see the pop-ups -- Sole Proprietor
and Independent Contractor, Partnership, Corporations, or Sole
Proprietor with the Employers.
What's the Government game? This was the failed PPP
loan that's charged. The Government game here is the loan
review: "You are in the wrong tab." See? Pink. "You are in
the wrong tab," so it failed, because they were in the
corporation tab.
And then, when they resubmitted it: "You are in the
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400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
correct tab."
"What form of support did the borrower provide for the
revenue decline?" It was under the $150,000. You didn't need
to prove anything. You didn't have to provide anything if it
was under the 150.
Now you're in the correct tab, so it's approved. But
they want you to think that those fake tax returns mattered and
that it failed because of it. He just wasn't in the right tab.
What does that tell you?
The Government intentionally misleads you time after
time. On direct -- another issue is with the PayPal for HM-UP.
On direct what you saw was the witness saying the borrower was
emailed for tax returns and asked for tax returns. But that's
not what happened. The Government was content to leave that
testimony just like that. On cross-examination we said:
"Well, where is that document? Where is that email where that
guy said that, where the loan representative that's working on
this actually said that?"
She says: "It's in the loan documents. I mean it's
in the log."
And we said: "Where on the log? We have the log and
we don't see it." We go through the whole thing. That's not
there. And again, Government's happy to leave it. We go back
and we find the February 16th email from PayPal. And what did
it ask for? They didn't ask for that tax return that the
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400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
Government said. The email asks for the partners of the
company's tax return. And on February 17th, the very next day,
what's submitted is the partner's tax returns, just like they
were asked for, HM Four and HM Eight. Those were the partners.
There was no fraud. But they want you to think that the other
tax return was asked for because they didn't bother to look and
find that email. They'd rather just convict him and ask for
him to go to jail.
This is not aggravated identity theft. The Government
is asking you to speculate and guess. The Government doesn't
have a single witness who's going to say, or who did say, that
Eric Sheppard signed anything. They don't have a single
witness to say that he uploaded and sent things. We know that
Jeff Vasilas was in that house, and we know that Jeff Vasilas
was sending things. How do we know? The Government's right.
Remember he had the huge punch list for Burlington, and in 2021
Eric's sick.
And I have to stop and pause because we know that Eric
had cancer. We know he had surgery. We know he had COVID. We
know he had treatment. We know, as Kallman said, it came back
recently. And the prosecutor had the nerve -- it was
stunning -- to mock him. "Well, you're looking pretty good,
Mr. Sheppard." Really? Really? I think everybody in this
courtroom, unfortunately, in these days, knows somebody who has
had cancer. To say that to somebody, a cancer survivor,
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400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
hopefully, is unbelievable. That's a new low.
His home office with the computer, there's only one
computer there, and that's the one that Jeff Vasilas was on.
And you know, they talk about this IP address, and where things
were being sent from, and we know that some of the IP addresses
come back to the house. We also know Eric's not there. For
example, at Jordan -- at his daughter's basketball
championship. We know that he wasn't there on February 24th,
and we take a picture. She asks for more pictures. He goes to
show it to her, and now she doesn't want them anymore.
But what did we show you? We showed you a text. Jeff
Vasilas is still in the house on February 26th and 27th. We
showed you, February 27th, Cellebrite from the Government, that
Jeff Vasilas is at the house. Text messages. We know that
Eric is not there.
You know, it's kind of like those traffic cameras with
the red lights. Unfortunately, I get a bunch of them. But the
traffic cameras don't take a picture of the person driving.
They just take a picture of the car. It's the same thing here,
except the traffic light people, because they don't have a
picture of the person, it's only a civil fine and a traffic
ticket that you have to pay, because they don't have the
person. So we're not going to take somebody's liberty away for
that. Well, here it's the same thing. They don't know who's
on that computer, and they knew from day one it's an issue. So
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400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
what did they do about it? Nothing.
One of the Government's favorite things to look at and
talk about is the commingling of funds. And I know I'm running
out of time, so I'm going to try to summarize as best I can.
But this case has been so complicated, and there is so much to
talk about, that I have to take another few minutes. The
commingling. The Government claims that: "Oh, he pays his
house mortgage. He pays for a bracelet for his daughter. He
pays for school tuition." No. Money is commingled, yes.
Nothing's wrong with it. Nothing. Not one witness in this
entire case said that commingling was not allowed.
As a matter of fact, everybody acknowledged
commingling was the acceptable practice. Jammie Hutcheson --
here's Brent Motes: "The SBA money is fungible. Yes." Althea
Harris: "There's no rule that it's to be separated. You could
send it to whatever account the borrower or business bank
account had." David Toye said -- everybody said commingling
was fine.
So why does the Government want you to still believe
that he's paying his house mortgage? Because it sounds good?
Because the mortgage was a lot of money? You already know it's
going to be a lot of money. That's not a crime. He had more
money in that account, and it was all accounted for. Even
Cupersmith admitted that his accounts were separated, the
personal from the business. There were distributions at the
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400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
end of the year. That's the way they did it.
Is that the best business practice, to keep everything
in one account? Of course not. Kallman was appalled. But
nevertheless, it's not illegal and it's not wrong. And
Cupersmith and Jeanette always sort it out.
The two instructions that Her Honor gave you, one is
about good faith. And Her Honor told you that good faith is a
complete defense to a charge that requires the intent to
defraud. You know he did not have an intent to defraud. He
wasn't looking to cheat people or steal money. Are you
kidding? He's got these loans, he's paying them back.
And by the way, of course the Government didn't bring
that out to you. We had to every time. He's been paying those
loans back, as he was supposed to. They want to make it seem
for one percent or two percent that that's why we committed
fraud. Come on. Common sense tells you that's not true.
We know other people are signing his name, including
Jeff Vasilas. They want to play this game? Here you go. You
look at the signatures. He is signing as a personal grantor
his name is Eric Sheppard and he's the owner of a house.
The truth is, when Eric got sick, as he told you,
2021, Eric couldn't take it anymore with these loans. He'd had
enough. That was it. He just couldn't deal with it. He kept
trying to fix the PayPal loan, the very first one. They
wouldn't listen. It was too stressful once he got the cancer.
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400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
He had other things to concentrate on. He had phase 3. He had
other things going on. He wanted to negotiate, get those
leases up and going if he could, get Indian Trails done, the
road. He had things to do.
And what does Jeff Vasilas say? He says: "Hey,
buddy. I got this" -- because he's back at the house. "I got
this." He's there two, three times a week. We know it. We
know it from everybody. And Jeff Vasilas says: "I'll do it."
He had the right to rely on him. He had done him
well. Burlington came out. He actually got Burlington done.
And unbeknownst to Eric -- he didn't know what Jeff Vasilas was
really doing behind his back. He didn't know about the liens
that were going to come. He didn't know about the accident
when he got stuck in the mud and the two big tractors. He
didn't know that was coming. To him, Jeff Vasilas was his new
go-to guy. Jeanette's not at the house, Jeff Graff is gone,
and Jeff Vasilas is getting things done. So when Jeff Vasilas
says: "I got this," he said: "Okay." And Jeff Vasilas, you
know, had access to everything.
Mr. Bouchner. He's an expert witness, the forensic
expert witness. And Mr. Bouchner came in here and he explained
to you he followed the money. He didn't add things up like the
FBI agent, Hysa. He followed the money. He did an analysis,
and he showed you that analysis, and he showed you there was
four times as much money in that account as what was spent on
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400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
the loans.
So for the personal expenses that were there, we're
not denying they were there. They were there. He pays his
mortgage. He ramps up that AmEx card. We've all seen it here.
Glenn testified about it. Two people in Orlando had that AmEx
card, burning it up. So what? As long as it's all accounted
for, there wasn't a problem.
But we know that the money was there. It's kind of
like the example that Scott Bouchner gave you about Grandma.
Grandma gives you a hundred dollars and tells you: "Go buy a
sweater." I'm thinking: "Good. I really wanted a new
sweater." But on the way home, I stop and I get gas. And I
take out the hundred dollar bill, and I get gas, and now I've
only got probably $40 left. But the point is I go home and I
order that sweater online for a hundred dollars because Grandma
gave me a hundred dollars. And Scott Bouchner explained, yes,
you have a hundred dollars from Grandma.
It's the same thing here. He followed the money, and
he showed you that that money, the personal money, was not
used -- not spent from Government money.
The gate installation at Eric's house we know, again,
February, the IP address is right there. That .129, that's
Eric's house, and that's Jeff Vasilas signing February 19th.
So what are we talking about?
The bank accounts. What did Scott Bouchner use? He
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400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
used the same thing Neal Cupersmith used. Where did he get
them from? Neal Cupersmith, production from the Government,
all the bank accounts that were subpoenaed, all the records,
all the QuickBooks that were done, not after Eric got
arrested -- all the QuickBooks that were done that Neal
Cupersmith had in his possession from years ago. That's what
was used in Scott Bouchner's analysis, real-time figures
following the money. We don't trace serial numbers of money.
We put on a full defense case. That's very unusual.
Not only did Eric testify, Rob Kallman, his friend of 20 years,
who's investing millions of dollars -- this is a guy who owns
the second largest book distributorship in the country. He's
the guy who sells the books to Amazon to sell to us. That's
who he is. You think he's going to invest with somebody who is
committing fraud? No.
Rob Kallman told you something else. He told you and
corroborated what Eric was talking about with his ownership of
HM Four. There came a point where only Eric was putting in
that money. So Eric called Kallman and said: "Hey, buddy.
I'm diluting your interest because I'm the one putting up this
two and a half million dollars." And Kallman said: "Fine.
We'll work it out." And that's what happened. And he trusted
him, and he's always worked it out with him, and never had any
issue. What does that tell you?
Speaking of what does that tell you, you know, we know
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400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
that Eric is a success at business. But you know what else?
We know that he's just a success -- you know why? Because
every day we see that gallery filled with different family
members and friends. That's why. And you know what? That's a
success in life. That's what that is, people that show up
every day, day after day, weeks. That's somebody who we got to
think about here.
Mary Ataca tells you she went to work at Biscayne --
at 12000 Biscayne Boulevard. She was the cleaning lady at
first. Ten years ago she goes there and she realizes they have
a cleaning service, and she says: "Eric, you don't need me.
There's a cleaning service. I really could have used the
money." And Eric says: "Don't worry. I got you. You know
what, Mary? I need somebody to do filings so much." And we
heard how much filing there was to do. We heard about the 14
storage bins. We heard about all those filing cabinets that
were taken to Eric's house too. And we saw the binders and
what's there. That's the kind of guy he is. "Don't worry,
Mary. I got you," and he puts her to work. And she's been
working ever since doing the filing.
We put on Glenn Sheppard. Glenn Sheppard came and
told you he works and does the CAM, the CAM that they think is
not part of the real business of HM Four. That's what he does.
Do you think that guy was lying? That guy couldn't tell a lie.
He couldn't stop talking either. But Glenn Sheppard told you
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400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
from the bottom of his heart everything that was going on, and
just rambling and telling you everything. That's who Glenn
Sheppard is.
Kerby Kleef. What did he tell you? He told you how
he got a job in COVID and how grateful he was. These were real
people getting real money during COVID. When nobody else was
paying them, when they had no other way to support themselves,
Eric Sheppard was paying them.
There were no witnesses that told Eric he didn't
qualify. There were no witnesses, no warnings, not on the
application, not in the portal. There was nobody that was
defrauded or injured. There was no money stolen. You heard
from Althea Harris if it didn't go to him it was going to the
next guy. You heard that. They were in a hurry to get out the
billions of dollars.
And what else did you hear? Ninety-six percent of it
are all forgiven, and that's it, the government's okay. But
after he did get one forgiveness, he didn't even apply anymore.
He's like: "Okay. I'm paying for it," and he does. So unlike
the other 95 percent in this country that didn't bother to pay
it back, he's paying it back. And that's who they've indicted?
And they tell you in opening he's taking money from people and
he's using it for his personal benefit. Not true. None of it.
No witness of Eric having anything to do with these
forged tax returns. Don't you think that Eric knew -- he gets
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400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
extensions every single year for 20 years. Don't you think he
knew his taxes weren't done in February? Of course he knew.
One of these forged tax returns says February. That never
would have happened with Eric. He knows how to spell Neal
Cupersmith's name. He didn't do this.
There's no witness that Eric knew about these 941s.
He calls up Jeanette -- if Jeanette did something -- let me
pause. Where is Jeanette Gonzalez? Not our burden. Their
burden. They know where she is. They've subpoenaed her
before. They've talked to her before. Even after she had a
lawyer, you heard, they talked to her. Don't you think if they
wanted to bring you any information they would have? Maybe she
did it with Jeff Vasilas inadvertently or on purpose to help
him. I don't know. We can't guess. We're not to speculate.
Her Honor Judge Bloom has instructed you on the law.
Your verdict must be based on the evidence, only the evidence
in this courtroom. The evidence is the testimony that you
heard, and of course applying your common sense and the law.
And that's how you'll put together a verdict.
So let me talk to you for a minute about the verdict.
You've been here a long time, and we all know that. And we all
know that it's not a fun thing to be taken away from your
homes, your families, your businesses, your lives. We know
that. But I'm going to ask you to take your time in that jury
room. I'm going to ask you to look at every single thing in
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Yvette Hernandez, Official Court Reporter
400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
there. There are 14 counts, Ladies and Gentlemen. And every
count the Government is looking to take his freedom. And every
single count we've talked to you about why they have not proven
beyond a reasonable doubt.
You know, the jury instruction says: "Proof beyond a
reasonable doubt is a real doubt." It also tells you that
you're to rely -- would you rely on that decision in the most
important of your affairs. In other words, think about the
evidence you heard. Would you rely on Maged Salem to pick a
doctor? Are you kidding? Would you rely on the testimony of
Jeff Graff about the signatures as an expert and say it's okay
that they didn't bring one in? Think about it. Talk about it.
If I might have one minute.
THE COURT: Certainly.
(Pause in proceedings.)
THE COURT: You still have time, Ms. Weintraub.
MS. WEINTRAUB: Thank you, Judge.
Oh. Before we do that, let's talk about the payroll
report. The payroll report that the Government talked about
already, and made a big deal about, from what you've heard,
from what the evidence is -- the Government just asking you to
guess and speculate. But from what the evidence is, would you
think that Eric Sheppard knows how to prepare a payroll report
with withholdings? Really? I mean, nobody -- I don't think
anybody believes that Eric knew how to do that. Or if he
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400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
looked at it and saw withholdings, if he knew that would be
fake numbers or not numbers, or the numbers are right? But
there's no evidence of it. That's what's important. There's
absolutely no evidence.
Jeff Vasilas's signature on the borrower application
form -- take a look at these signatures. Because what we know
is that Jeanette Gonzalez signs his name. It's Jeff Vasilas's
signature, and Jeff Vasilas is signing -- you see what they're
saying is Eric's on the bottom, which isn't Eric's, and Eric
said it's not his, compare that to Jeff Vasilas. I mean, if
you want to play expert, let's play expert.
They showed bank records in their closing argument to
you already. Bank records. And they told you that he signed
that withdrawal form, that Eric did, that he signed the
withdrawal deposit slip. And it was from 2018. And all I kept
thinking about is really? Who was at the bank? Do they have a
picture? We know that Mary Ataca did all the banking, or maybe
Jennifer did it that day. Do we know? Are we supposed to
guess? That's what the Government's giving you; go fish.
That's not what we do here. What we do here is we look at
evidence. Evidence.
I don't know, we don't know, if Jeff Vasilas did all
this. I don't know if Jeanette helped him. I don't know if
she did any of it. I don't know if she knows about it. She
still works for Eric. You heard that. But what we do know is
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400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
that Jeff Vasilas is committing fraud right here. What we do
know is that he signs Jeff Vasilas as owner of his house when
he was doing the gate work. He signs Jeff Vasilas. He signed
for Eric Sheppard when Eric was out of town. We don't know
what else he did. We don't. But what we do know is he was
committing fraud.
Eric Sheppard's intent can be seen by his actions and
by the documents, not just by what I say. Eric Sheppard's
intent goes back to asking Jeff Graff: "Are we good? Do we
need to change anything," writing PayPal, begging them: "I
can't get on the portal. Can you help me? I need to make a
change. I need to make a correction," talking to his
accountant: "I just applied for a government loan." Then
right away he just writes them: "I just talked to my CPA. I
need to make a change." That's Eric's intent. He had no
intent to defraud anybody.
The Government told you in opening that they have
charged him with misusing loan funds for his own personal
benefit. Not true.
We know that you will consider carefully everything
that was said. This is the hardest thing for any lawyer to do,
is to sit down knowing that the Government's going to come back
up and I won't be able to rebut it. Think about the things
that we talked about. Think about his intent. Think about his
life. Think about: Why would he do that? For what? To save
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400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
two percent on a loan? No.
Why would he do that when he was sick, he didn't feel
well, and Jeff Vasilas was offering to do it? Why wouldn't he
say: "Okay"? Why would he think that Jeff Vasilas would have
thought this stupid scam up? Why? Because that's the real
issue here. Do you believe that Eric Sheppard scammed,
schemed, and deliberately put this whole thing together for a
couple of hundred thousand dollars? Do you really think that?
No. The evidence says that wasn't him. The evidence said no.
COVID was an awful time. It was scary and life was
different. And you have to remember that's when this was going
on. And who knows? You know, they say we're blaming the dead
guy. No. We're blaming the guy that did this. We're blaming
the guy that was signing for Eric as owner, who's giving his
own checks, who's writing and causing liens to be put on his
property now. They're saying: "Blame the dead guy." We wish
he were alive, because then he'd be here and Eric wouldn't and
neither would his family.
As I said in opening statement, Eric Sheppard did not
use this money for any inappropriate purpose. He used this
money completely one hundred percent properly, and you heard
that from the expert and it was undisputed. They could have
called an expert in rebuttal. They didn't.
There can only be one verdict in this case. And as I
sit down, we can only hope that you deliberate, talk, think,
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400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
look, review the instructions by Her Honor Judge Bloom. And
after you have, we can only hope that you will see the evidence
that Eric Sheppard is not guilty because he isn't.
Thank you.
THE COURT: Thank you, Ms. Weintraub.
Ladies and Gentlemen, let's take a 10-minute recess,
please.
COURT SECURITY OFFICER: All rise for the jury.
(Jury not present, 12:57 p.m.)
THE COURT: We're on a 10-minute recess.
(Recess from 12:57 p.m. to 1:08 p.m.)
THE COURT: Both sides ready to continue?
MS. MARTINEZ: Yes, Your Honor.
MR. ETRA: Yes, Your Honor.
THE COURT: Could we just see if they are all ready to
go.
Thank you.
(Pause in proceedings.)
THE COURT: Okay. You can bring them in. Thank you.
(Before the Jury, 1:08 p.m.)
THE COURT: All right. Welcome back, Ladies and
Gentlemen.
Please be seated, everyone.
And we will continue with the Government's closing
argument.
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400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
Ms. Martinez?
MS. MARTINEZ: Thank you, Your Honor.
Good afternoon.
Counsel just asked you: "Why would Eric Sheppard do
this?" I'm going to show you Eric Sheppard's own words. This
is from Exhibit 68. These are his texts when he was texting
with Nelia Palancar, who testified here regarding the Economic
Injury Disaster Loans. This is from September 17th, 2020.
Mr. Sheppard nudging Nelia Palancar along: "Okay,
young lady. Money doesn't sleep. Let's work to get this
funded."
The Defendant definitely cared about taking
advantage -- a word used by Defense counsel. He definitely
cared about taking advantage of an opportunity that was once in
a lifetime, to be able to get business loans, loans to fund
your business, at only one percent. And even more, funding
that could be forgiven. Which, in fact, as you know, he did
get one of the loans forgiven.
He also wanted to take advantage again of something
that doesn't happen, hasn't happened before, a national
disaster declaration, such that every businessman in the
country, if they had been impacted by the disaster, if they had
had an economic injury, could apply for a below-market interest
rate loan that was payable over 30 years. You didn't have to
put up your house. You didn't have to put up a personal
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400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
guaranty. But you could get this money only during the
pandemic.
As you saw, the Defendant took advantage -- again,
using the words of Defense counsel -- of this program. And
why? Because we know, and the Defendant said so himself, and
his text tells you he cares about getting this money.
So one of the first things that Defense counsel said
when she got up here is this is complicated. Actually, lies
can be complicated. And in fact, one of the methods of fraud
is -- that you saw in this case, in fact -- is to make it seem
complicated. But the truth is very straightforward. So let me
just take you to a few small summaries of the truth.
I don't know if -- can you-all see it from that side?
So we only have three companies that actually got
funded. He tried for a number of companies -- and I'm going to
go over that -- but he only had three companies that got
funded. So let's just for one second -- the Paycheck
Protection Program ones. He got funding for HM-UP Development
Alafaya Trails under the Paycheck Protection Program in May of
2020. That was the first one. He actually filed it with a
doing business as HM Management, as though it was doing
business as this. And the funding actually got deposited into
the HM Management account. But the application, the PayPal
one, the first one, May 1st of 2020, it was to HM-UP
Development Alafaya Trails.
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400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
That company never, ever had employees, ever. This is
the company that owned the Orlando shopping center. So this is
the company that received rent monies. That company was
basically a landlord. Okay? The only -- so this is -- to
review the simplicity of this, HM Management and Development,
another company that he got Paycheck Protection Program funds
for on the second round in 2021, when he got it for both HM
Management and for HM-UP Development Alafaya Trails in the
second round -- this company, HM Management is the only one
that ever, ever had any employees. And only three.
How do you know that? You know that because the lady
from the Florida Department of Revenue came to testify. For
years -- for years -- HM Management and Development had
reported only three employees. They have to because they have
to submit Florida forms for unemployment compensation. They
call it now reemployment tax. That's why you hear the RT-6
forms. And those forms came up in this case because the
Defendant submitted some false ones, completely falsified. But
HM Management is the only one that ever had three employees.
You know that from the Florida Department of Revenue
lady. And she said it stopped at the end of 2018. That is
consistent with the IRS, Philip Palmer, who came and told you
that the employer taxes -- which is really just an employer
getting to the IRS the withholding that they're just holding in
trust for the IRS, the income taxes, and then also the Medicare
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400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
and the Social Security -- those forms, the Defendant
stopped -- the last time he filed them was in 2018. And again,
it was only for HM Management. And again, it was only for
those three employees, Jeanette Gonzalez, Vanessa Gonzalez,
Elva Baluarte, who is really actually somebody who works in the
Defendant's home.
What happens -- and I'm just -- what I'm covering for
you is just the simplicity of the fact that only one of his
companies ever had employees, and it didn't have employees
during this time period, and the employees that it had was only
three. Okay? So we know that from the entire history of him
and his company doing it properly with the Florida Department
of Revenue till the end of 2018, doing it properly with the IRS
until the end of 2018.
What happens at the end of 2018? Well, Philip Palmer,
the gentleman from the IRS who was one of the first witnesses
in this case, he explained to you that what happened was that
in the last -- when you do your employer -- when the employer
turns over to the IRS the income tax that they've taken from a
W-2 employee, and the Medicare and Social Security -- when they
turn it over to the IRS, they have to file these forms on a
quarterly basis. That's what -- all those 941s that
everybody's been talking about, Employer's Tax Return Form 941.
So that day, what the IRS gentleman had, Philip
Palmer, he had a transcript, like a record from the IRS that
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400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
showed that the Defendant actually -- at the end of 2018, he
had filed it, said he needed to turn over about $10,000. It
was income tax and Social Security and Medicare from those
three employees. But he actually didn't pay it at the end of
2018. He didn't. And that created a change after that.
After that, there was a penalty that was just in the
IRS records, you know, accrued interest, penalty because you
didn't pay it. And after that, that's it. That's it. He's
off the grid with respect to employees. He doesn't file
anything more with the IRS with respect to employees.
2019 -- now, let me tell you something interesting
with respect to HM Management and Development and these three
employees, something more. We saw that the Defendant's
accounting expert had to admit it. There's only one account
ever the Defendant had had -- bank account -- only one bank
account ever that had the title that said: "Payroll," only
one. It was a Bank of America bank account. That bank account
paid only the three people: Jeanette Gonzalez; Vanessa, the
daughter of Jeanette Gonzalez; and Elva Baluarte, the lady that
cleans at the house of Mr. Sheppard.
What happened is that you can see in that bank account
that he's still paying only net wages. He's still paying
only -- you know, he's not going to a gross wage, but he's
still continuing to use that payroll account till the end of
2019, and he's continuing to pay net wages. But then nothing
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400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
more happens, no more filings with the IRS, no more turning
over to the IRS, no more filings for unemployment compensation
with the Florida Department of Revenue. So he just stops. He
just stops.
And at that point in 2019, he stops. Now, let's go
further. They still submit -- and I'm just focusing on some of
the things that you have that make it so clear. HM Management
is the only one that ever had employees, and they only had
three. The Defendant knew it. In 2019, when they did the tax
returns, Mr. Cupersmith, Mr. Zaslow, who came on rebuttal, they
emailed him and said: "You've given us some records showing
some withholdings, but we don't have any 941s. We don't
have" -- because that is the form that folks look to see: Do
you have employees? Do you have an employer's tax return to
show that you have withheld from employees income tax,
Medicare, Social Security?
He never -- him, Jeanette Gonzalez, who's the only
person that's in his accounting department, they never submit
that to the tax accountant, Mr. Cupersmith and Mr. Zaslow. So
Mr. Cupersmith and Mr. Zaslow submit with the IRS a disclaimer
basically saying: "We've prepared this based on what we have,
but we haven't seen all the information that we need to see.
So we would have to modify it if we get the additional
information."
The point of this is that the Defendant -- the
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Yvette Hernandez, Official Court Reporter
400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
Defendant never had employees with HM-UP Development Alafaya
Trails, the company that owned the Orlando shopping center.
Let me cover HM Four for a second, just for purposes
of the concept of employees. I mean, HM Four never even had a
bank account until October 22nd, 2020, when he applied for an
Economic Injury Disaster Loan. Only till then -- I mean, only
then for the first time ever. In fact, the only bank account
they ever had was one that was used to receive the Economic
Injury Disaster Loan, and then to use it. That's it. This
company didn't -- was just -- HM Four was just an owner on
paper of the company that was the landlord at the mall in
Orlando. And this company, of course, didn't have operations
and certainly had no employees, not even workers, nothing
there.
Now, since I'm talking about the simplicity of the
fact that he never had employees, let's talk about a couple of
other reasons why you know that when he was applying he
absolutely knew -- absolutely knew -- that for a Paycheck
Protection Program you need to have W-2 employees.
How do you know that? Ms. Jimenez showed you the
forms. From the beginning, from the first loan -- and I think
it might be helpful if I put up the other chart, so you can
follow, to the extent that hopefully you can see some of this.
I'm talking about the first loan, the one from April -- the
application was April 15th, 2020, relating to Alafaya Trails,
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400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
but that was actually funded in May 1st of 2020.
From the very beginning of the first Paycheck
Protection Program application, the, quote/unquote, payroll
report that is submitted, now, it's not in that one. It's just
a piece of paper. It says: "Payroll Report," and it listed
about 11 names. Some of the people on that list are people
that testified here that said to you that they were 1099s, like
Carlos Granda, Joe Beirne, Jeff Graff. Those people were on
the list. And of course, they were not employees.
But here's what's interesting: That list, from the
beginning, had withholdings -- had withholdings for people that
never had withholdings. And what does that tell you? That
tells you that from the first day -- from the first day --
Mr. Sheppard knew that what the loan program was was a loan
program for, you know, regular employees, the type of employees
that a company has on board, like the ones he previously had,
that you withhold taxes, income tax, and you also contribute
and withhold from them the Medicare and Social Security.
So if he had thought that it was okay from the
beginning, it could be any worker, could be anyone, when they
ask him for documentation, what would you submit? If it's
1099s, you'd just submit to PayPal your 1099s. You just would
do that. I mean, that's the documentation you have. And that
would have been the truth, right? Carlos Granda had a 1099.
Joe Beirne had a 1099. We saw the 1099 here for Joe Beirne.
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400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
It was admitted into evidence.
But that's not what Mr. Sheppard submitted. If he was
going -- you know, they're workers. You know, they're workers.
That's how he calls them. They're workers. Well, they ask you
for documentation. We saw in this courtroom that the
documentation for Joe Beirne was a 1099. But he didn't submit
that. Mr. Sheppard did not submit that.
So what I'm saying is that, number one, the
simplicity. This is simplicity of truth, right? Number one,
he did not have employees in HM-UP Development Alafaya Trails.
And he absolutely knew that the -- from day one, that the
Paycheck Protection Program related to W-2 employees only and
purposefully made up paperwork to make it look that there were
withholdings that in the bank records you never see. They just
don't exist.
I'm going to go for a moment to the applications.
So -- just to run them through. I want to make sure that I
talk for a moment about the Economic Injury Disaster program.
Okay? Because after the Defendant gets the funding on May
1st -- and remember, just an easy number, okay -- almost all
the loans that were funded, it's 150,000. That's a rough
number. It always would come out a little bit less. For the
Economic Injury Disaster Loans, I think they just would take
off like a hundred dollars. So what was actually deposited was
149,900.
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400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
And then for the Paycheck Protection Programs there
was an adjustment, and it was deposited a little bit less,
maybe 146 for some, 147 for others. But just for purposes of
having rough numbers as we talk about it, just think about each
loan that was funded, 150,000 is what was obtained and what he
was trying to do in the first round before he tried to get
increases. But remember one of the things about this program.
The funding was limited and folks were trying to get it. So it
kept running out. So when it was running out, the Defendant
then turns to Economic Injury Disaster Loans. And that's
what's happening in the next phase, over the next part of 2020.
The importance of seeing all the times that he tried,
even when he didn't succeed, is because that tells you his
intent. That tells you his insistence of: "I am going to tell
you whatever lie and give you whatever false document I need to
give you to get this money at this advantageous rate."
So that's why it's important to look at all the
evidence of his intent, all the evidence of his scheme,
including the times when he was told no, because that taught
him: "Okay. What's the next false document that I need to
turn in?"
But what happens is that in July of 2024, he, using
the assistance of Nelia Palancar, submits to the SBA four --
four different Economic Injury Disaster Loan applications, a
program that is supposed to be for only companies that have
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400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
economic injury.
Now, I'm going to go over the fact that there was no
injury. I mean, you have it from the records of the forensic
accountant from the FBI, but you also have it from the
Defendant's own accountant. The Defendant's own accountant
showed you how much rental money he had, and he agreed with my
numbers. It was multimillion dollars in rental money that he
had during this time. And I'm going to show you one of the
Government's exhibits again. He had no -- no impact.
But still, had there been an impact, you can't try,
for example -- to try to get the impact -- let's say it was
true, which it's not. I'll show you the exhibits again. But
if you're going to say falsely that Alafaya Trails didn't have
rent, you can't then also try to say that HM Four, that it just
owns it on paper, has the same injury. That's like
double-dipping. And indeed, the SBA -- and if you look at the
evidence and the SBA notes, they were looking for that -- for
something like that.
But that's, in fact, what the Defendant did. He
tried -- he was successful in getting the funding for HM-UP
Development Alafaya Trails and HM Management. And then he also
tried to get it for HM-UP Alafaya Trails II and Sheppard
Flagler Holdings. And as you can see, these are other
companies that he owned with a different partner.
When you see that there was also an application that
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400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
he did with HM Six, that's where you need to go to the other
side of the chart. HM Six is just also a shell company, which
Ms. Jimenez pointed out from a previous deposition how the
Defendant identified himself that it was just a shell company.
He tried to get a loan for HM Six and that one also failed.
When that was denied, that's when he went back in and
he said: "Well, now I'm going to try with HM Four to get the
Economic Injury Disaster Loan."
At that point he had already been able to get it for
HM Management and for HM-UP Development Alafaya Trails, making
up the economic injury. Again, I'm going to show you there was
no economic injury.
But when he gets denied the HM Six, that was on
October 21st, 2020. Okay? October 22nd, 2020, he then -- he
goes into overcharge. Okay? He opens a bank account that had
never been opened for HM Four. He opens that. Within a few
days, he deposits just $80. He then is -- he has to verify the
bank account. And he comes up with the idea of trying to do
this false letter with Heimdal Barrios.
The way that you know that that letter is false is
Heimdal Barrios, who has absolutely no interest in this case,
didn't try to overstate what his memory was. He didn't tell
you: "Oh, I definitely remember this." He said: "You know, I
don't recall. I really don't recall. But what I can tell
you" -- this is what Heimdal Barrios said about the letter that
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400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
was -- where his name was forged. He said: "That bank account
that was opened, it was opened only with Eric Sheppard as a
signer. That letter has Jennifer Sheppard in there." He said:
"I would never add Jennifer Sheppard to a letter if that's --
if she's not on the account."
In addition, he said: "I would never just have a
letter go out like that. I would make sure that it's a PDF and
that I actually sign it." He looked at the signature and he
said: "It's not mine." And he described in detail why he
could see that that's not his signature. He described it
himself. And then, in addition, he described that he puts two
little dots that weren't there. So he was sure that was not
his signature.
But let me tell you quickly about -- because time is
flying. Let me tell you quickly about what else Mr. Sheppard
did with respect to that account. Remember that what he chose
to do in HM Four is then at that point to say that it was in
the name of Jennifer Sheppard. That's one of the things that
you can see in this exhibit. And this is Exhibit 72. It's a
summary exhibit. Jennifer Sheppard -- as the evidence shows,
she was never the 80 percent owner as it was indicated on that.
And what the Defendant admitted here in the courtroom
is that he actually started sending emails -- and he admitted
it -- and he would sign "Jennifer." He would be writing as
though he was her. So that's why he needed for that banker's
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400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
letter to have Jennifer on there even though she wasn't on the
account.
But what the Defendant did more is that then he
realizes that they want more. So he goes on November 16th and
he deposits $60,000 -- and this is why I want to go back to my
chart with the companies. He goes back to the bank account
HM-UP Development Alafaya Trails. He takes $60,000 out of this
account. That's the account -- one of the accounts -- there's
multiple bank accounts for that company, but that's the company
that's receiving the rent. Takes $60,000 out of there on
November 16th -- remember, this is happening quickly. He wants
to get this loan.
The very next day -- he moves 60,000 from HM-UP to HM
Four November 16th. The very next day, November 17th, two-step
process, he goes to get a printed bank statement to prove that
there's some activity in the account. Sixty thousand dollars
is in the account. Gets the printed document, and in one fell
swoop -- we showed you that exhibit. In one fell swoop --
because I showed it to the Defendant's expert, and he couldn't
explain why somebody would do that. And the next -- he gets
the bank statement showing that 60,000 is in the account, again
to show some activity. And then, that same day, as he's
getting the printed partial bank statement -- it's not even a
month because the bank account is new -- he removes out the
50,000. And where does it go? Right back where it was.
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400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
That transaction was for no business purpose other
than to fake out the SBA and to make it seem that there was
some activity in HM Four.
I'm going to quickly run through some of the other
ones, because I need to make sure that I respond to a couple of
arguments. But let me just say that what happens -- I'm going
to stay just with HM Four to make sure that I cover the lease.
Okay?
The false -- the false lease, it is -- you remember
Maged, who came, and he said: "I would never be signing a
lease in the middle of COVID, May 2020." But he submits a
false lease, and then he submits a false management agreement.
I could show it to you. We don't have enough time. That
management agreement, it is so false that -- the beginning part
of the agreement, where they pretend -- they want to try to
pretend that HM Four has some activity -- the beginning part of
the agreement has one company as the owner, HM Four, and HM
Eight is the manager. And then what they did in the cutting --
in the cutting and pasting is that they changed it in the back.
So bottom line -- meaning in the signature. So if you
look at the signature page, front page, it doesn't match. And
you would have to go back to it. It's in Exhibit 58, if I
remember correctly.
So what I'm going to do is show you -- this is the
lease, and there's a reason why I want to show it to you right
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400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
now. This is the signature page that Maged Salem told you had
his signature forged. That's "Maged" at the bottom. Notice
that also this purports that Jennifer -- it purports that
Jennifer Sheppard was in Orlando. That's incorrect. Jennifer
Sheppard was not in Orlando. If she signed it, she would have
signed it as a false document in Miami.
But let me show you something.
(Pause in proceedings.)
MS. MARTINEZ: I'm going to show you some checks that
show that -- they've blamed Jeff Vasilas. They've blamed the
guy who passed away. Notice that the signature of Jeff
Vasilas, which would purportedly be up here -- see if I can get
this to respond -- doesn't match any -- doesn't match any of
Jeff Vasilas's signatures on his own -- when he's endorsing his
own checks.
My colleague has pointed out to me that I should show
you an example of one that's typed, so that you can see the
name of Jeff Vasilas here. I'm not going to play with the zoom
because I may mess it up. So I'm just going to show you now
the signature, and I'm going to live with that example because
I need to move on. But just to show you not only is this lease
false...
(Pause in proceedings.)
MS. MARTINEZ: I'm going to show you several, so you
see how he endorses his checks. See if I can get it. And now
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400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
I'm going to show you the one that they have versus the ones in
the back of Jeff's checks.
And let me tell you something about handwriting,
because it was mentioned by Defense counsel. Anybody who has
someone that they've known for a long time, you know you can
tell other people's handwriting. This is called lay opinion,
when -- someone who's not an expert. When it comes to
handwriting, a regular person, just with their own eyes, can
tell a signature.
In this case, none of us have known Jeff Vasilas
ourselves. The man is deceased. But we can tell that the
signature on this false lease is not even Jeff Vasilas's.
MS. WEINTRAUB: Judge?
THE COURT: I'm sorry?
MS. WEINTRAUB: Time?
THE COURT: On time. My clock is 1:48.
MS. WEINTRAUB: I thought it was 1:40.
MS. MARTINEZ: Thank you, Your Honor.
(Pause in proceedings.)
MS. MARTINEZ: Because I'm talking about Maged Salem
and Heimdal Barrios, let me talk for a moment about aggravated
ID theft. The aggravated ID theft is a separate crime, and
it's a separate crime that is incredibly appropriate in this
case. This is a case where the Defendant, not -- as you saw,
he wants to use other people's money, right? He wants to use
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400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
taxpayers' money. He wants to use Robert Kallman's money. He
wants to use other people's money to get his business done.
And in addition, what you saw is that he wants to use
other people's names to get things done. He -- you saw it in
this case, right? And that is something that helped to lend
credibility to his applications. There's no way that he could
do a banker's letter without a signature. But if he had gone
back to Heimdal Barrios, Heimdal Barrios would have ultimately
said: "When I look at this, I can't sign this with Jennifer's
name." So he wouldn't have signed it. That's what he said.
And in fact, he said he didn't sign it. But the Defendant
wanted that to happen anyway, so he used Heimdal Barrios's
name. He wanted to lend credibility to his application, and he
wanted to be able to move his fraud along.
The same thing -- he was asked to prove that there was
operations with HM Four. He sends a false lease. He has to
have the name of a tenant. The tenant won't sign the lease at
this time. He falsifies the name.
And then let's go to the many important counts that we
have with the forged tax returns that were forging the name of
the accountant Neal Cupersmith, who came here. Every single
tax return that the Defendant had ever had for years, you
heard, had always been prepared by an accountant. So to him,
he expected that if he's going to submit one it's going to have
the signature of an accountant, and indeed he does that. And
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400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
he is intending that it lends credibility to his application
and that it move it forward.
So when you see in the jury instruction that it's
using somebody else's means of identification without their
consent, and that it has to be used in a manner that is
deceptive, and it has to be a key mover of the criminality,
that is what the Defendant was doing. He was trying to make it
happen.
And you know that it was not a mistake and that it was
him because you know from the evidence in this case that that
is something -- as I just showed you, he just did it for Jeff
Vasilas's as well. And as Mr. Jeff Graff testified, you know
that it's not a mistake because Jeff Graff's name was used in
an application for a visa, and it was not without his consent.
And the Defendant had -- it was not with his consent --
MS. WEINTRAUB: I need to object.
THE COURT: All right. The objection is noted.
MS. MARTINEZ: And like I said, it's something that
you know tells you that there was no mistake in the forgeries
in this case. It was intended.
So I don't have time to cover everything. So I'm
going to tell you, if you need it, some of the Government's
summaries, in particular 41-16, the financial summaries, will
show you in there that there was not any loss of rent at all.
There was not any loss of rent. So the false documents that
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400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
pretended that there was, there was not. He never had any
economic injury.
Also, another point that I want to make sure that I
make -- I have just two minutes, guys -- I know you're happy.
So remember that the victims, the lenders, the SBA, they don't
need to rely -- look at the -- one of the things, if you have
any questions, look at the jury instructions that the Court has
given you. The jury instructions are incredibly helpful. They
define materiality. They tell you that the victim does not
have to rely on the lie. It just has to be the type of lie
that would tend to influence someone. If it's that type of a
lie, and that was the intent, and you had intent to defraud,
then it's material.
So like I said, take a look at the jury instructions
of the Court with respect to who -- everything in this case,
but also with respect to who would have had a motive to lie in
this case. The person who had motive to lie in this case is
the Defendant, the Defendant for two reasons. Number one,
because all this money went to only one person. He was the
sole signer in the bank accounts, no one else. So it went to
him. And now he is the one that has something at stake in this
case. Every other witness that you had here on behalf of the
Government, they just were required to come because of this
case. They had no interest in the outcome.
So I ask you now to do something that is one of the
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400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
most important functions in our system. As the Court said to
you, when you walk into the room, we stand up. And when you
walk out of the room, we stand up. That's because folks from
our community, jurors coming together like you, we rely on your
common sense and we rely on you to be able to tell what is the
truth. And that's all that is required here, to say the truth
of what actually happened.
Dict -- verdict. The "ver" part is the truth. "Dict"
is about announcement. And all we ask you now is to announce
the truth that every count in the Indictment the Defendant is
guilty because he did do it knowingly. He did it with intent
to defraud.
Thank you so much, not just for today, but for the
entire time.
THE COURT: All right. Thank you, Ms. Martinez.
Ladies and Gentlemen, when you get to the jury room,
choose one of your members to act as the foreperson. The
foreperson will direct your deliberations and will speak for
you in court.
A Verdict Form has been prepared for your convenience.
Let us review the Verdict Form.
"United States of America v. Eric Dean Sheppard,
Defendant.
"Verdict Form.
"We, the jury, unanimously find the Defendant Eric
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400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
Dean Sheppard, as to Count 1 of the Superseding Indictment" --
there are two lines, one for guilty, one for not guilty. You
are to check only one line.
"As to Count 2 of the Superseding Indictment" --
there's a line for guilty. There's a line for not guilty. You
are to check only one line.
"As to Count 3 of the Superseding Indictment" --
there's a line for guilty. There's a line for not guilty.
You're to check only one line.
"As to Count 4 of the Superseding Indictment" --
there's a line for guilty. There's a line for not guilty. You
are to check only one line.
"As to Count 5 of the Superseding Indictment" --
there's a line for guilty. There's a line for not guilty. You
are to check only one line.
"As to Count 6 of the Superseding Indictment" --
there's a line for guilty. There's a line for not guilty. You
are to check only one line.
"As to Count 7 of the Superseding Indictment" --
there's a line for guilty. There's a line for not guilty. You
are to check only one line.
"As to Count 8 of the Superseding Indictment" --
there's a line for guilty. There's a line for not guilty. You
are to check only one line.
"As to Count 9 of the Superseding Indictment" --
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400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
there's a line for guilty. There's a line for not guilty. You
are to check only one line.
"As to Count 10 of the Superseding Indictment" --
there's a line for guilty. There's a line for not guilty. You
are to check only one line.
"As to Count 11 of the Superseding Indictment" --
there's a line for guilty. There's a line for not guilty. You
are to check only one line.
"As to Count 12 of the Superseding Indictment" --
there's a line for guilty. There's a line for not guilty. You
are to check only one line.
"As to Count 13 of the Superseding Indictment" --
there's a line for guilty. There's a line for not guilty. You
are to check only one line.
"As to Count 14 of the Superseding Indictment" --
there's a line for guilty. There's a line for not guilty. You
are to check only one line.
"So say we all" -- there's a line for the foreperson
to sign and date the Verdict Form.
Take the Verdict Form with you to the jury room. When
you have all agreed on the verdict, your foreperson must fill
in the form, sign it, date it, and carry it back when you
return to the courtroom.
If you do wish to communicate with me at any time,
please write down your message or question and give it to the
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400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
court security officer, who is the marshal. The marshal will
bring it to me, and I will respond as promptly as possible,
either in writing or by talking to you in the courtroom, but I
caution you not to tell me how many jurors have voted one way
or the other at that time.
Now, Ladies and Gentlemen, we have lunch provided for
you. I would ask that you deliberate as you're eating lunch;
however, I would ask that you not begin your deliberations
until the evidence is brought back to you.
You will be given a laptop. On the laptop are all of
the uploaded exhibits. Along with the laptop will be an
exhibit list that will guide you through the exhibits.
You will also receive a copy of the Superseding
Indictment.
I would ask that you remain in the jury room and wait
for the evidence before you begin your deliberations.
Now, as you can see, it is 10 to two. You certainly
can take as long as you need to decide your verdict. If at
today about five o'clock you have not made a decision, then
certainly we'll bring you back tomorrow. And once again, you
can take as long as you need to deliberate and decide your
verdict. But a cautionary instruction: You are not to
deliberate unless all of you are present in the jury room. If
you do need to take a break, everyone takes a break and then
you reconvene, but you cannot deliberate unless all of you are
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Yvette Hernandez, Official Court Reporter
400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
present in the jury room.
All right. So at this point in time I would ask that
you follow the court security officer into the jury room, your
lunch is there, and wait upon us for the exhibits to be brought
to you.
COURT SECURITY OFFICER: All rise for the jury,
please.
(Jury not present, 1:52 p.m.)
THE COURT: All right. Go ahead and have a seat.
Three items that we do need to address. The first
item is: Has the Government provided a clean Superseding
Indictment?
MS. JIMENEZ: Yes.
THE COURT: Has that been shown to the Defendant?
MS. JIMENEZ: (No verbal response.)
THE COURT: The forfeiture allegation should be
removed.
MS. MARTINEZ: We have -- we have -- the last two
pages are blacked out, with the exception of just -- it says:
"A true bill."
THE COURT: All right. Is that acceptable?
MS. WEINTRAUB: The date is on it.
MS. JIMENEZ: This had to be redacted? The date of
the Indictment?
THE COURT: Is it just the date of the filing?
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400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
MS. JIMENEZ: It's just the CM/ECF.
MR. ETRA: They were told the arrest was in July, so
it could be confusing.
THE COURT: Is there a way to redact that portion,
please?
Josue, perhaps we can assist by giving them the white
tape -- we can assist by giving you the white tape, and we will
make a copy.
The second item is the laptop that contains all of the
exhibits that have been admitted into evidence. Has the laptop
been uploaded with the exhibits?
MS. MARTINEZ: Ms. Font is nodding yes.
THE COURT: All right. And has the Defendant been
shown the laptop to verify the exhibits, along with the one
exhibit list to go back to the jury?
MR. ETRA: No. It's just been given to Mr. Cavallo
now.
THE COURT: All right. Let's go ahead and review
that.
Does the laptop require a password?
MS. MARTINEZ: No.
(Pause in proceedings.)
MS. WEINTRAUB: Judge, I have --
THE COURT: Do we have the exhibit list to provide to
Mr. Cavallo?
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400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
Do you have that, sir?
MR. ETRA: That was just provided to us.
THE COURT: All right. And do we have the Superseding
Indictment that we can redact the top portion and make a copy?
MS. MARTINEZ: Ms. Jimenez is putting tape on it.
(Pause in proceedings.)
MS. WEINTRAUB: Judge, at the Court's convenience, I
would also like to be heard on closing motions.
THE COURT: Let me just take care of this so we can
get this back to the jury.
MS. WEINTRAUB: Yes, Judge.
(Pause in proceedings.)
MS. MARTINEZ: Your Honor, is the Court going to want
any extra exhibit lists, because just we have extras?
THE COURT: I just need one exhibit list for the jury.
MS. MARTINEZ: Okay. We're waiting for Mr. Cavallo to
review it. I mean, I have extra copies. Would you --
COURTROOM DEPUTY: Just one.
(Pause in proceedings.)
MR. CAVALLO: Your Honor, we've reviewed the laptop.
It's sufficient.
THE COURT: All right. And does the laptop contain
all of the exhibits that were admitted into evidence,
Mr. Cavallo?
MR. CAVALLO: Yes, Your Honor.
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400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
THE COURT: And have you reviewed the exhibit list and
is that consistent with the uploaded exhibits?
MR. CAVALLO: Yes, Your Honor.
THE COURT: All right. Then if you can provide to the
court security officer the laptop, the exhibit list. And
Ms. Jimenez, if you can provide us with the Superseding
Indictment, so we can make a copy to remove that date on the
top.
MS. MARTINEZ: She's almost at the last page.
THE COURT: All right. And while Ms. Jimenez is doing
that, Ms. Weintraub, did you want to place something on the
record?
MS. WEINTRAUB: Yes, Your Honor.
Your Honor, I objected twice during closing. The
first was on Fifth Amendment grounds. Ms. Jimenez I think
shifted the burden to the Defense and said that we could have
called somebody and we could have done something and brought in
evidence or whatever, and it was completely improper.
The second is much more troubling, and we would move
for a mistrial. Ms. Martinez actually said to the jury that he
signed the visa application. This is the one thing that has
been -- as the Court well knows and is probably sick of me
saying -- a thorn in my side. This is the 404(b) evidence that
I couldn't argue any stronger than I have tried to. And this
is the one thing that the Government represented over and over:
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400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
"Well, Judge, we're not looking at the visa application. We're
only talking about the retainer, the engagement letter." And
there in closing close, Ms. Martinez says he signed the visa
application. I would move for a mistrial.
MR. ETRA: Could I briefly, Your Honor, add, it's my
understanding of the briefing that the inference from the
404(b) was intent to defraud, and motive, and that kind of
thing. And the briefing, at least initially, specifically
said: "We're not arguing that because he's forged before he's
forging now." And now in rebuttal, for the first time, when
you weren't supposed to do that, the argument was: "He's
forged before. He's forging now."
MS. WEINTRAUB: And that's exactly what's prohibited.
MR. ETRA: Which was always one of our concerns.
THE COURT: All right. Ms. Martinez?
MS. MARTINEZ: Yes, Your Honor. What I did is follow
to the best that I could from my recollection the instructions
of the Court with respect to 404(b) and to refer to the witness
testimony of the issue that had come up with respect to that
matter. I just tried to reference it as a visa matter, just so
I could -- so that it could be recalled as to what the matter
was about in a quick way.
So -- and I repeated repeatedly the lines from the
jury instructions regarding to -- showing intent and showing
motive. That's what I tried to do. And if I included the
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400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
words: "Lack of mistake," I did it because I was following the
instructions in my head.
THE COURT: All right. Did you want to respond to the
argument I believe that -- when Ms. Jimenez was arguing with
regard to shifting the burden?
MS. MARTINEZ: Your Honor, maybe my colleague wants to
respond to that, but I will just say that the Defendant did put
on a case. So do you recall what it was that you said?
MS. JIMENEZ: I don't know what was objectionable
about what I said. I don't know...
THE COURT: Ms. Weintraub's argument is that the
Government specifically said that the Defendant could have
called a certain witness.
MS. JIMENEZ: I never said the Defendant could have
called a certain witness.
MS. WEINTRAUB: Or could have done something to rebut
it.
THE COURT: All right. Is there any further argument
with regard to these matters?
MS. WEINTRAUB: Yes, Judge. I'd like a ruling because
what Ms. Martinez said isn't what she put on the record. What
she put on the record was that Jeff Graff said that Eric
Sheppard signed the visa application, which she should not have
said. I'd like some kind of instruction which I'd like to
think about over the lunch break --
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400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
THE COURT: Are you asking for the Court to bring the
jury back to give them an instruction?
MS. WEINTRAUB: If the Court is not inclined to grant
my mistrial, yes.
THE COURT: Are you seeking a mistrial at this time?
MS. WEINTRAUB: Yes. And the next question is, no, I
have not.
THE COURT: Did you want to speak with Mr. Sheppard
before you make that motion for a mistrial?
MS. WEINTRAUB: I think I could make an executive
decision at this point, but I will. Thank you.
THE COURT: All right.
(Pause in proceedings.)
MS. WEINTRAUB: I've spoken with my client.
THE COURT: All right. And your client is supporting
your motion?
MS. WEINTRAUB: Yes, Your Honor.
THE COURT: All right. I do not believe that the
error, if any, rises to the level of warranting a mistrial.
With regard to shifting of the burden, the record will
bear out specifically what was said. To the extent that the
Government did shift the burden, then certainly I will consider
bringing out the jury with regard to a further instruction.
And you can certainly fashion that, show that to Ms. Martinez
and Ms. Jimenez for the Court to consider.
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Yvette Hernandez, Official Court Reporter
400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
All right. The Court will be close at hand. I would
suggest -- it's two o'clock now -- that you take the next hour
for a lunch break, since the jury will be eating lunch. We
will bring back the laptop, the exhibit list, as well as the
clean Superseding Indictment.
But I would ask that you -- following three o'clock,
that you be close at hand to the extent that the jury has a
question or arrives at a verdict. I know that Liz has obtained
from each of you cell numbers. I'm not requiring that you
remain in the courthouse, but please be close at hand. If you
are going to be traveling more than a 15-minute distance, if
you will just let Liz know so that we can accommodate your
travel.
MS. WEINTRAUB: Judge, is it the Court's practice to
bring the jury back at five o'clock or will the Court just
dismiss them if they have not --
THE COURT: I'm going to bring them back to give them
further instructions at five, and then we'll adjourn. I do
need to give them instructions with regard to tomorrow morning
coming into the vestibule because I don't want them coming into
the jury room. It will remain locked.
MS. WEINTRAUB: Okay. So we will come back here --
THE COURT: Yes. So at the very least, we will return
so the Court on the record can give the jury further
instructions.
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400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
MS. WEINTRAUB: Thank you, Your Honor.
THE COURT: Okay. Is there anything further on behalf
of the Government?
MS. JIMENEZ: No, Your Honor.
THE COURT: On behalf of the Defendant?
MR. ETRA: Do we still have the conference room? And
if so, for how long?
THE COURT: Yes. Of course. You can certainly use
the conference room until we conclude the trial.
Okay. Have a nice lunch break.
(Recess from 2:03 p.m. to 3:21 p.m.)
THE COURT: All right. Welcome back. I trust that
everyone had a pleasant lunch.
Let me acknowledge the presence of the Defendant.
Please be seated.
We have a note from the jurors that reads as follows:
"Can we use the poster boards that the Government used in their
closing statement," signed at 2:40 p.m.
MS. WEINTRAUB: And who is it signed by, Your Honor?
THE COURT: It begins with a D or an N. It's a
signature. I mean, I can certainly show you the note, which --
it will be part of the record, but I do need an answer to the
question.
MS. WEINTRAUB: Obviously, we object. It's not in
evidence.
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Yvette Hernandez, Official Court Reporter
400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
MS. MARTINEZ: Well, no -- well, they are in evidence.
Those are -- Exhibit 72 is the loan summary.
THE COURT: Okay. Let me see these poster boards.
MS. JIMENEZ: It was going so fast, I didn't -- so
this is in evidence. And this one, I didn't put a sticker on
it. And I was going to mention it to the jury, but I was going
too fast, which is -- I made one change, so I didn't put a
sticker number. I made one change. I told the Defense. The
d/b/a Construction Service X is not in the --
THE COURT: Okay. I mean, clearly these are
demonstrative aids that were used in closing argument that do
not go back to the jury. The question is: What is the
appropriate response to the jury's question?
MS. WEINTRAUB: I would like them to rely on their own
recollection of what the evidence was at this time. And if the
Court will recall, as to the summary of the loan applications,
these are all uncharged loans. These were loans that we were
not on notice of. Some of them -- they're not in the
Indictment. There was an Indictment, then a Superseding
Indictment. They still didn't appear. The number here has
always been no more than $460,000 of loans. And now we're
looking at 1.7 million, and we object.
MS. JIMENEZ: I would ask that --
MS. WEINTRAUB: I don't think they can demonstrate it,
after five minutes, that they need the demonstrative aids.
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Yvette Hernandez, Official Court Reporter
400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
MS. JIMENEZ: I'm going to ask that they be advised
that they could look at Government Exhibit 23-1 and Government
Exhibit 72.
MS. MARTINEZ: That's these documents.
MS. JIMENEZ: I mean, this -- the one that is here is
changed.
THE COURT: Right. So that is not a demonstrative of
what was in evidence. And regardless, even if it was, the
demonstrative -- or the poster boards are demonstrative aids.
They are not in evidence.
MS. JIMENEZ: They could be advised that Government
Exhibit 23-1 and Government Exhibit 72 represent --
MS. WEINTRAUB: I think that's commenting on the
evidence. I would ask that the Court tell -- respond to them
and say they were demonstrative aids used by the prosecutor for
closing argument.
MS. MARTINEZ: Actually, one is exactly a blow-up even
with the exhibit number. So it really is a blow-up of an
exhibit. It's no different than if I had shown the exhibit in
ELMO.
THE COURT: But regardless, then it should have -- the
jury should have been told that that is a demonstrative or a
blow-up of the evidence.
I am suggesting that the Court respond in writing by
saying the following: "The poster boards are demonstrative
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Yvette Hernandez, Official Court Reporter
400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
aids and not in evidence. You are to rely on the evidence in
this case."
Is there any objection?
MS. WEINTRAUB: No.
MS. JIMENEZ: Yes. They have -- they have these
things in evidence. It's not like it's -- it's putting
something --
THE COURT: And again, the evidence is with the jury.
To instruct the jury that the poster board, one of them may or
may not be -- by your own statement, one of the demonstrative
aids is not an exhibit that's in evidence. So it would be
inappropriate -- first and foremost, it would be error for the
Court to allow a demonstrative aid, absent an agreement by the
parties, to go back to the jury. And secondly, it's
inappropriate for the Court to show emphasis to one piece of
evidence over the other, unless the jury specifically asks with
regard to a piece of evidence.
MS. MARTINEZ: Your Honor, may I ask again if you
could read your response?
THE COURT: "The poster boards are demonstrative aids
and not in evidence. You are to rely on the evidence in this
case."
MS. MARTINEZ: Yes.
THE COURT: Any objection by either side?
MR. ETRA: No, Your Honor.
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Yvette Hernandez, Official Court Reporter
400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
MS. MARTINEZ: No, Your Honor.
THE COURT: All right, then.
All right. This will be Court Exhibit 1. We will
send it back to the jury, and then obviously it will be filed
on the docket.
All right. So let me go ahead and write this out.
(Pause in proceedings.)
MS. JIMENEZ: I mean, maybe to -- make it clear to
them that the boards are not in evidence. I don't want the
suggestion that -- because these things are in evidence. I
don't want, you know, the suggestion that --
MS. WEINTRAUB: The Court ruled. I mean, I don't even
understand this.
THE COURT: All right. Once again, for the record --
all right. The Court's response to the question: "Can we use
the poster boards that the Government used in their chasing
statements," the Court's response: "The poster boards are
demonstrative aids and not in evidence. You are to rely on the
evidence in this case."
All right. I'll ask the courtroom deputy to just
provide that to the jury. And at this point in time, we'll
just stand in recess.
All right. Is there anything further by either side?
MS. JIMENEZ: No, Your Honor.
MR. ETRA: No, Your Honor.
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Yvette Hernandez, Official Court Reporter
400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
MS. WEINTRAUB: Thank you, Judge.
THE COURT: Okay, then.
(Recess from 3:27 p.m. to 4:09 p.m.)
THE COURT: All right. Welcome back.
Please be seated.
Let me acknowledge the presence of the Defendant.
We have received a note from the jury that reads as
follows: "Unanimous agreement on two of 14 charges. No
progress on other 12. Will not reach unanimous agreement on
them."
MR. ETRA: It's early.
THE COURT: My suggestion is the Court read the
modified Allen charge and send the jury back to continue the
deliberations.
MS. WEINTRAUB: I'm sorry, Judge. Did you say you're
going to give them an Allen charge now?
THE COURT: Well, what is it that you would --
MS. WEINTRAUB: I would not request an Allen charge at
all at this time. I would just -- I would tell them to keep
deliberating.
THE COURT: Without any direction, instruction, or
statements by the Court? I'm suggesting the modified Allen
charge --
MS. WEINTRAUB: I mean, what time was the note sent?
THE COURT: 3:55.
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400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
MS. WEINTRAUB: I mean, they weren't even deliberating
an hour. I mean, it's just a first vote.
THE COURT: So what is it that the parties are
requesting or suggesting to the Court?
MS. WEINTRAUB: My suggestion to the Court on behalf
of the Defense, Your Honor, would be to please keep
deliberating at this time.
MS. JIMENEZ: Your Honor...
(Pause in proceedings.)
MS. JIMENEZ: I mean, we have no objection to the
Allen charge, if the Court wants to do it at this time.
(Pause in proceedings.)
THE COURT: Ms. Weintraub, can you articulate why you
would not be in favor of the Court providing the modified Allen
charge?
MS. WEINTRAUB: Can I have a second?
THE COURT: Certainly. And perhaps I should read to
you the modified Allen charge from the Eleventh Circuit's
decision of United States v. Elkins. Would that be helpful?
MS. WEINTRAUB: Sure.
THE COURT: "Members of the Jury:
"I'm going to ask that you continue your deliberations
in an effort to agree on a verdict and dispose of this case,
and I have a few additional comments I'd like for you to
consider as you do so.
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400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
"This is an important case. The trial has been
expensive in time, effort, money, and emotional strain to both
the defense and the prosecution. If you fail to agree on a
verdict, the case will be left open and may have to be tried
again. Another trial would increase the cost to both sides,
and there is no reason to believe that the case can be tried
again by either side any better or more exhaustively than it
has been tried before you.
"Any future jury must be selected in the same manner
and from the same source as you were chosen. There's no reason
to believe that the case could ever be submitted to 12 people
more conscientious, more impartial, or more competent to decide
it, or that more or clearer evidence could be produced.
"If a substantial majority of you are in favor of
conviction, those of you who disagree should reconsider whether
your doubt is a reasonable one, since it appears to make no
effective impression upon the minds of the others. On the
other hand, if a majority or even a smaller number of you are
in favor of an acquittal, the rest of you should ask yourselves
again, and most thoughtfully, whether you accept the weight and
sufficiency of the evidence that fails to convince your fellow
jurors beyond a reasonable doubt.
"Remember at all times that no juror is expected to
give up an honest belief about the weight and effect of the
evidence. But after fully considering the evidence in this
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Yvette Hernandez, Official Court Reporter
400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
case, you must agree upon a verdict if you can. You must also
remember that if the evidence fails to establish guilt beyond a
reasonable doubt, the Defendant must have your unanimous
verdict of not guilty. You should not be hurried in your
deliberations and should take all the time that you feel is
necessary.
"I now ask that you retire once again and continue
your deliberations with these additional comments in mind.
Apply them in conjunction with all of the other instructions I
have previously given to you."
MS. WEINTRAUB: I change my mind. I will defer to the
Court.
THE COURT: Is there any objection to the Court
reading the modified Allen charge?
MS. JIMENEZ: Not from the Government, Your Honor.
MS. WEINTRAUB: No, Judge.
THE COURT: All right. Then let's bring in the jury,
please.
(Before the Jury, 4:14 p.m.)
THE COURT: All right. Welcome back, Ladies and
Gentlemen.
Please be seated, everyone.
I received a note that states as follows: "Unanimous
agreement on two of 14 charges. No progress on other 12. Will
not reach a unanimous agreement on them."
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Yvette Hernandez, Official Court Reporter
400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
Members of the Jury:
I am going to ask that you continue your deliberations
in an effort to agree on a verdict and dispose of this case,
and I have a few additional comments that I would like for you
to consider as you do so.
This is an important case. The trial has been
expensive in time, effort, money, and emotional strain to both
the defense and the prosecution. If you fail to agree on a
verdict, the case will be left open and may have to be tried
again. Another trial would increase the cost to both sides.
And there is no reason to believe that the case can be tried
again by either side any better or more exhaustively than it
has been tried before you.
Any future jury must be selected in the same manner
and from the same source as you were chosen. There is no
reason to believe that the case could ever be submitted to 12
people more conscientious, more impartial, or more competent to
decide it, or that more or clearer evidence could be produced.
If a substantial majority of you are in favor of a
conviction, those of you who disagree should reconsider whether
your doubt is a reasonable one, since it appears to make no
effective impression upon the minds of the others. On the
other hand, if a majority or even a smaller number of you are
in favor of an acquittal, the rest of you should ask yourselves
again, and most thoughtfully, whether you should accept the
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Yvette Hernandez, Official Court Reporter
400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
weight and sufficiency of the evidence that fails to convince
your fellow jurors beyond a reasonable doubt.
Remember at all times that no juror is expected to
give up an honest belief about the weight and effect of the
evidence. But after fully considering the evidence in the
case, you must agree upon a verdict if you can. You must also
remember that if the evidence fails to establish guilt beyond a
reasonable doubt, the Defendant must have your unanimous
verdict of not guilty.
You should not be hurried in your deliberations and
should take all the time you feel is necessary. So I now ask
that you retire once again and continue your deliberations with
these additional comments in mind. Apply them in conjunction
with all of the other instructions that I have previously given
to you.
Please continue your deliberations.
(Jury not present, 4:18 p.m.)
THE COURT: All right. We'll remain in recess.
MS. WEINTRAUB: Thank you, Judge.
MS. JIMENEZ: Your Honor, my understanding is that the
video went to the jury with the audio. It was not removed
from -- the audio.
THE COURT: Well, it was the Government that uploaded
the exhibits. So why did you upload the exhibit with the
audio?
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Yvette Hernandez, Official Court Reporter
400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
MS. JIMENEZ: Because, I mean, the exhibit -- I don't
know if there's a way to remove the audio from the exhibit,
from the --
THE COURT: I asked whether all of the exhibits were
uploaded. I then asked the Defendant whether the Defendant had
reviewed them. So at this point in time, to take evidence back
from the jury, when it has already been submitted to the jury,
would not be appropriate. So my question, once again, is: Why
did you not bring it to the Court's attention or remove the
audio when it was uploaded?
MS. MARTINEZ: Your Honor, we relied on the Defense.
It's a Defense exhibit.
THE COURT: But it was the Government that uploaded
the exhibits.
MS. MARTINEZ: Some of the exhibits, Your Honor, as
you know, were sent to Ms. Font at four in the morning. So I'm
sure that she did her best, but we do rely on the Defense to
correctly provide exhibits to us. So we now verified with
them, and this is what we learned. So I understand -- if
there's nothing further to be done, I mean, we just --
THE COURT: Well, do you believe, Ms. Martinez, that
the law would support taking the evidence back from the jury,
who is in the jury room deliberating, so that I can remove
audio that the Government inadvertently did not remove?
MS. MARTINEZ: Your Honor, we are not requesting to
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Yvette Hernandez, Official Court Reporter
400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
remove that.
THE COURT: All right, then.
MS. MARTINEZ: And I do say, Your Honor, though, it
was not the responsibility of the United States to redact
something that was the Defense's exhibit.
THE COURT: Well, I understand that it may have not
been initially the responsibility. But during the course of
the closing arguments, when it was played, it should have
alerted the Government that what was uploaded on the computer
should not include the audio.
To the extent that it was inadvertent, I'm not
faulting anyone, all I'm saying is that you're asking the Court
to do something that I think is improper.
MS. MARTINEZ: Perhaps it would be good if the Defense
would just let us know what is on that audio. We have no idea.
MR. ETRA: You have a copy. I mean --
MR. CAVALLO: You have the copy with the audio.
MS. MARTINEZ: Would you like to let the Court know or
anybody know?
MR. CAVALLO: I mean, if you want me to summarize, I
can do the best I can right now.
MS. MARTINEZ: Yes.
MR. CAVALLO: It's: "My name is Jeff Vasilas. It's
this date. I'm standing in front of Mattress1One, and I've put
a padlock on the door."
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Yvette Hernandez, Official Court Reporter
400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
THE COURT: Is that the extent of the audio?
MS. WEINTRAUB: Yes, Your Honor.
MR. CAVALLO: Yeah, and I believe it was shortened.
MS. WEINTRAUB: It was.
MR. CAVALLO: Yes. It's stating who it is, and the
date, and then basically: "I'm putting a -- I'm locking the
door."
MR. ETRA: "And no one could get in," comments like
that.
MS. MARTINEZ: I think it's helpful to have that
summary, Your Honor.
THE COURT: Okay. All right, then. I'll see you at
five o'clock.
(Recess from 4:21 p.m. to 4:59 p.m.)
THE COURT: Back on the record.
Let me acknowledge the presence of the Defendant.
The jury wasn't aware that we were going to adjourn
for the evening. So I did receive another note: "A juror
needs to leave. We will reconvene tomorrow." The time is five
o'clock.
So I would suggest that we bring the jury back. I
will advise them tomorrow -- now, I'm going to give them
specific instructions with regard to tomorrow morning. You do
not need to be here tomorrow morning. But the court security
officer, as well as the courtroom deputy, will assemble the
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Yvette Hernandez, Official Court Reporter
400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
jurors once they are all here, unlock the door, and then they
will begin their deliberations at nine a.m.
Are there any issues that we need to address at this
time?
MS. MARTINEZ: Just to clarify, we do not need to be
here or would you like us here?
THE COURT: You do not need to be here at nine
o'clock. There's nothing that's going to take place in the
courtroom with regard to that case. They are merely going to
go back in the jury room to continue their deliberations.
MR. ETRA: We need to be 15 minutes --
THE COURT: Yes. If you could just be close at hand,
to the extent that the jury arrives at a verdict or has a
question.
Okay. Any issues we need to address before we bring
the jury in?
MS. WEINTRAUB: Judge, I do note that Jay Weaver was
here for closings, and I would ask they be reminded,
respectfully, that -- you know, of course, not to read anything
or look at anything on the news because I'm sure that it will
be in The Herald.
THE COURT: All right. Certainly.
All right. Let's bring in the jury.
(Before the Jury, 5:00 p.m.)
THE COURT: All right. Welcome back, Ladies and
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Yvette Hernandez, Official Court Reporter
400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
Gentlemen.
Please be seated, everyone.
I did receive a note that states: "A juror needs to
leave. We will reconvene tomorrow."
Yes. We will reconvene tomorrow. Ladies and
Gentlemen, we will adjourn for the evening.
Now, the instructions for tomorrow are as follows:
The jury room will remain locked. Your juror notes, as well as
the evidence, will remain in the jury room. You are not to
enter the jury room, and the court security officer will not
permit you to enter the jury room until all of you are here.
So if you will come into the vestibule and just remain seated
until all 12 of you are here. Then you will go into the jury
room to continue your deliberations.
We will start precisely at nine a.m. Please plan on
being here at nine a.m.
As we adjourn for the evening, please remember you are
not to discuss this case with anyone, nor permit anyone to
speak with you. You're not to read or listen to any reports
that there may be about the case. Everything learned about the
case has already been learned in this courtroom.
So have a pleasant evening, and I will see you at some
point tomorrow. But if you'll meet the courtroom deputy at
nine a.m. in the vestibule.
Have a pleasant evening.
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Yvette Hernandez, Official Court Reporter
400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
(Jury not present, 5:02 p.m.)
THE COURT: All right. We do -- go ahead and have a
seat for just a moment. We do have some matters tomorrow in
the courtroom. So I would just ask if you can just allow use
of the counsel table. You may certainly keep your items in the
conference rooms behind you, but I would just need use of the
tables.
Is there anything 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?
MS. WEINTRAUB: No, Your Honor.
THE COURT: All right. Have a pleasant evening. And
I'll see you at some point tomorrow.
MR. ETRA: Thank you, Judge.
MS. MARTINEZ: Thank you, Your Honor.
(Proceedings adjourned at 5:03 p.m.)
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191
Yvette Hernandez, Official Court Reporter
400 North Miami Avenue, 10-2
Miami, Florida 33128
(305) 523-5698
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 11th
day of January, 2024, 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 - 191.
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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Transcript of Trial Day 17 as to Eric Dean Sheppard held on 01/11/2024 — USA v. Sheppard (Dkt. 323, S.D. Fla.)

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