Indictment — United States v. Shibley (Dkt. 76, W.D. Wash. No. 2:20-cr-00174)

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Honorable John Coughenour 
UNITED STATES DISTRICT COURT 
WESTERN DISTRICT OF WASHINGTON, SEATTLE 
UNITED STATES OF AMERICA,      ) 
  
 
 
       )     No.  CR20-174 JCC 
    
Plaintiff, 
       ) 
 
 
 
       )     DEFENSE REQUEST FOR REASONABLE  
    
 
v. 
 
 
       )     NOTICE OF GOVERNMENT’S INTENDED  
 
 
 
 
 
       )     USE OF ER 404(b) EVIDENCE, EXPERT 
ERIC SHIBLEY, 
  
 
       )     WITNESS SUMMARIES, AND   
  
 
 
 
 
       )     CO-CONSPIRATOR ADMISSIONS 
  
                     Defendant. 
       )     
_______________________________)     
  
Defendant Eric Shibley, by and through undersigned counsel, requests that the 
government provide him with reasonable notice, in advance of trial, of the general nature 
of any and all evidence that the government will seek to introduce under ER 404(b) for 
any purpose, summaries of any purported expert witness’s proposed testimony, and the 
substance of any purported co-conspirator admissions it might seek to introduce. 
Relevant background 
Mr. Shibley is charged in a 15-count indictment with wire and bank fraud and money 
laundering arising from various loan applications he made in the spring of 2020 in connection 
with the federal Paycheck Protection Program and the Economic Injury Disaster Loan program. 
Until early last year Mr. Shibley was a Washington-licensed physician still practicing 
medicine, primarily by ministering to a marginalized patient base typically battling drug 
addiction and mental illness.  He was simultaneously trying to kick-start a real estate 
 1
  
 
  Michael Nance  
 
 
 Attorney at Law 
 
 
P.O. Box 11276 
 
 
Bainbridge Island, WA 98110 
 
 
(206) 624-3211

investment career using cheap labor, at least some of whom were marginalized street 
people and/or people he had known as patients.   His approach was unorthodox and 
undoubtedly suffered from a lack of business convention and full documentation.   
 
The government case is document-intensive with voluminous bank records, 
assorted applications and supporting documents, witness interview summaries, etc.   
The government investigation appears to have uncovered evidence of Mr. Shibley’s past 
financial issues (including a bankruptcy), martial difficulties and a contentious divorce, 
prior domestic violence issues, tax issues, professional licensing issues, and other civil 
litigation.  A court-ordered competency evaluation was also done.  Most, if not all, of this 
evidence lacks sufficient relevance to justify its admission and will likely be the subject 
of a future motion in limine. 
Defense request for notice of intended use of ER 404(b) evidence 
In order to effectively investigate the case and prepare for trial the defense must 
understand as soon as possible what particular evidence, whether cited above or not, the 
government plans to present as “other crimes, wrongs, or acts” under ER 404(b).  That 
rule explicitly requires the prosecution to provide reasonable notice in advance of trial of 
its intention to present 404(b) evidence, if the accused has requested the notice.   
The policy behind 404(b) is "to reduce surprise and promote early resolution on 
the issue of admissibility." United States v. Tosta, 36 F.3d 1552, 1562 (1st Cir. 1996).  In 
considering the reasonableness of pretrial notice under 404(b) the court should consider 
several factors:  (1) when the government, through timely preparation for trial, could 
 2
  
 
  Michael Nance  
 
 
 Attorney at Law 
 
 
P.O. Box 11276 
 
 
Bainbridge Island, WA 98110 
 
 
(206) 624-3211

have learned of the availability of the evidence; (2) the extent of prejudice to the 
opponent of the evidence from a lack of time to prepare; and (3) the significance of the 
evidence to the prosecution's case.  Id.   
The government should specify now what it will seek to admit under the rule so 
that proper preparation can proceed and appropriate in limine motions considered.        
Defense request for written summary of expert  
testimony proposed under ER 702, 703 or 705 
Upon request the government must provide to the defense a written summary of 
any expert testimony that it intends to use under Rules 702, 703 or 705 during its case-in-
chief.  CrR 16(a)(1)(G).   The government response should include the witness’s 
qualifications, opinions, and the bases for the opinions.  See United States v. Jackson, 51 
F.3d 646, 651 (7th Cir. 1995) (strongly encouraging  the government to offer more 
specific descriptions of the opinions of the witness(es), foundations for their testimony, 
and their qualifications.  An “expert” is any witness offered under Rule 702, 703 or 704.  
See United States v. Khan, 787 F.2d 28, 34 (2d Cir. 1986). 
Defense request for any purported co-conspirator admissions
The government may seek to introduce co-conspirator statements as evidence 
under Fed.R.Evid. 801(d)(2)(E).   Prior to doing so, the government must first establish, 
by at least a preponderance of evidence that (1) a conspiracy existed at the time the 
 3
  
 
  Michael Nance  
 
 
 Attorney at Law 
 
 
P.O. Box 11276 
 
 
Bainbridge Island, WA 98110 
 
 
(206) 624-3211

statement was made, (2) the defendant participated in the conspiracy, and (3) the 
statement was made in furtherance of the conspiracy. See Bourjaily v. United States, 483 
U.S. 171, 175 (1987).
To provide fair notice to the defense the government should identify exactly what 
co-conspirator statements, if any, it intends to utilize.  After the statements are identified, 
the defense can respond in an appropriate manner and lessen the chance for a mistrial on 
this issue. 
Dated this 1st day of October, 2021. 
/s/ Michael Nance 
Defense Attorney

 4
  
 
  Michael Nance  
 
 
 Attorney at Law 
 
 
P.O. Box 11276 
 
 
Bainbridge Island, WA 98110 
 
 
(206) 624-3211

Certificate of Service 
I hereby certify that on the 1st day of October, 2021, I electronically filed the 
foregoing with the clerk of the court using the CM/ECF system.  Notice of this filing will 
be sent electronically to counsel of record for other parties. 
 
 
 
 
 
 
/s/ Michael Nance WSBA # 13933  
email:  michaelnancelaw@gmail.com  
 5
  
 
  Michael Nance  
 
 
 Attorney at Law 
 
 
P.O. Box 11276 
 
 
Bainbridge Island, WA 98110 
 
 
(206) 624-3211

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