Information — United States v. Eric Shibley (Dkt. 102, W.D. Wash. No. 2:20-cr-00174)

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U.S. District Court for the Western District of Washington · No. 2:20-cr-00174-JCC · Doc. 102 · 2021-11-08 · Docket on CourtListener

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GOVERNMENT’S RESPONSE TO DEFENDANT’S MOTION IN LIMINE- 1 
U.S. v. Eric Shibley, CR20-174JCC 
UNITED STATES ATTORNEY 
700 STEWART STREET, STE 5220 
SEATTLE, WASHINGTON 98101 
(206) 553-7970 
 
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The Honorable John C. Coughenour 
 
 
 
 
 
 
 
 
 
UNITED STATES DISTRICT COURT FOR THE 
WESTERN DISTRICT OF WASHINGTON 
AT SEATTLE 
 
 
UNITED STATES OF AMERICA, 
 
 
 
Plaintiff, 
                        v. 
ERIC SHIBLEY,  
 
Defendant. 
 
NO. CR20-174JCC 
 
GOVERNMENT’S RESPONSE TO 
DEFENDANT’S MOTION IN LIMINE 
(Dkt. #89) 
 
 
 
 
The government files this response in opposition to Defendant Eric Shibley’s 
Motion in Limine to exclude certain evidence from trial.  Dkt. # 89.  Defendant moves to 
exclude the following evidence: 
• Any details of the case for which he was on probation that reference “domestic 
violence”, “DV”, a “victim’s panel”, or any “violence/aggression treatment 
agency”; 
• The summary restriction of defendant’s medical license and his unauthorized 
writing of prescriptions for controlled substances; 
• Defendant’s prior civil litigation and bankruptcy; and 
• Any use of information acquired during defendant’s competency evaluation. 
 
 
Case 2:20-cr-00174-JCC     Document 102     Filed 11/08/21     Page 1 of 9

 
 
GOVERNMENT’S RESPONSE TO DEFENDANT’S MOTION IN LIMINE- 2 
U.S. v. Eric Shibley, CR20-174JCC 
UNITED STATES ATTORNEY 
700 STEWART STREET, STE 5220 
SEATTLE, WASHINGTON 98101 
(206) 553-7970 
 
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I. 
BACKGROUND 
On October 15, 2020, defendant was indicted by a grand jury with 15 counts of 
wire fraud, bank fraud, and money laundering related to a scheme to submit false and 
fraudulent applications for Paycheck Protection Program (PPP) loans and Economic 
Injury Disaster Loans (EIDL).  Dkt. #31.  Defendant’s scheme involved the submission 
of false and fraudulent information and documentation about entities that he controlled to 
participating lenders and the SBA, including false statements about his employees and 
payroll.  Further, in his PPP applications, defendant falsely affirmed that he was not on 
probation, when in fact he was on probation for violating a no-contact order from Skagit 
County.   
Question 5 of the PPP application asks: 
Is the Applicant (if an individual) or any individual owning 20% or more of 
the equity of the Applicant subject to an indictment, criminal information, 
arraignment, or other means by which formal criminal charges are brought 
in any jurisdiction, or presently incarcerated, or on probation or parole? 
(Emphasis added).  Applicants are asked to check a box “Yes” or “No.”  Above 
Question 5, the application states “If questions (5) or (6) are answered ‘Yes,’ the loan 
will not be approved.” 
On all of his PPP applications, defendant answered “No” to Question 5, despite 
the fact that he was on probation at the time for violating a no-contact order.  As part of 
his probation, defendant was required to attend a 52-week domestic violence 
perpetrators’ program.  Defendant did not start regularly attending the courses until 
January 2020, but he was attending classes weekly at the time he was applying for 
COVID-19 relief loans.  Defendant also met with his probation officer on January 23, 
2020, who reminded defendant that he was on probation until December 2020. 
II. 
ARGUMENT 
A. 
Legal Standard 
In his motion in limine, defendant appears to argue that certain evidence should be 
excluded pursuant to Federal Rules of Evidence 404 and 403.  Rule 404(b) precludes 
Case 2:20-cr-00174-JCC     Document 102     Filed 11/08/21     Page 2 of 9

 
 
GOVERNMENT’S RESPONSE TO DEFENDANT’S MOTION IN LIMINE- 3 
U.S. v. Eric Shibley, CR20-174JCC 
UNITED STATES ATTORNEY 
700 STEWART STREET, STE 5220 
SEATTLE, WASHINGTON 98101 
(206) 553-7970 
 
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using crimes, wrongs, or other acts to prove that commission of the charged crime 
conforms to the defendant’s character.  Fed. R. Evid. 404(b)(1).  The limitations of Rule 
404(b) do not apply if the evidence is “inextricably intertwined” with the crime with 
which a defendant is charged.   United States v. Vizcarra-Martinez, 66 F.3d 1006, 1012 
(9th Cir. 1995).  Generally, to qualify as inextricably intertwined, the evidence must 
“constitute[] a part of the transaction that serves as the basis for the criminal charge.”  Id. 
at 1012-1013.  Evidence can be inextricably intertwined for two reasons:  (1) “because it . 
. . [serves] a part of the transaction that serves as the basis for the criminal charge” and 
(2) “when it was necessary to do so in order to permit the prosecutor to offer a coherent 
and comprehensible story regarding the commission of the crime; it is obviously 
necessary in certain cases for the government to explain either the circumstances under 
which particular evidence was obtained or the events surrounding the commission of the 
crime.”   
If not inextricably intertwined, Rule 404(b) precludes using crimes, wrongs, or 
other acts to prove that commission of the charged crime conforms to the defendant’s 
character.  Fed. R. Evid. 404(b)(1).  But other-acts evidence may be admitted to prove 
“motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, 
or lack of accident.”  Fed. R. Evid. 404(b)(2).  “Rule 404(b) has thus long been 
characterized as a rule of inclusion—not exclusion.” United States v. Bailey, 696 F.3d 
794, 806 (9th Cir. 2012) (citing United States v. Cherer, 513 F.3d 1150, 1157 (9th 
Cir.2008)) (internal quotation marks omitted).  The other act evidence need not constitute 
a crime, United States v. Molinaro, 11 F.3d 853, 863 (9th Cir. 1993), and may have 
occurred after the crime charged, United States v. Ayers, 924 F.2d 1468, 1473 (9th Cir. 
1991). 
The Ninth Circuit has adopted a four-part test to determine the admissibility of 
evidence under Rule 404(b): (1) the evidence of the other crime must tend to prove a 
material issue in the case; (2) the other crime must be similar to the offense charged; (3) 
proof of the other crime must be based on sufficient evidence; and (4) the commission of 
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GOVERNMENT’S RESPONSE TO DEFENDANT’S MOTION IN LIMINE- 4 
U.S. v. Eric Shibley, CR20-174JCC 
UNITED STATES ATTORNEY 
700 STEWART STREET, STE 5220 
SEATTLE, WASHINGTON 98101 
(206) 553-7970 
 
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the other crime must not be too remote in time.  Vizcarra-Martinez, 66 F.3d at 1013.  In 
addition to satisfying the four-part test, evidence of other crimes must also satisfy the 
balancing test under Fed. R. Evid. 403 – that is, its probative value must not be 
substantially outweighed by the danger of unfair prejudice.  United States v. 
Montgomery, 150 F.3d 983, 1000-01 (9th Cir.), cert. denied, 525 U.S. 989 (1998).   
B. The Anacortes Municipal Court Case 
The government submits that evidence about defendant’s prior conviction and the 
terms of his probation are key evidence in its case.1 In his motion, defendant does not 
appear to challenge the introduction of his prior conviction for violating a no contact 
order as improper under Rule 404(b), but rather that the nature of the conviction should 
be excluded as unfairly prejudicial under Rule 403.  The evidence is admissible under 
Rule 404(b) because it is “inextricably intertwined” with the charged offense:  defendant 
made multiple false statements about his probation status to lenders and the SBA in order 
to receive PPP loans.  
The evidence should also not be excluded pursuant to Rule 403.  Evidence about 
the nature of the conviction has high probative value in this case.  The government must 
prove that defendant knowingly made false statements on his loan applications about his 
 
1 Defendant filed a Witness List on November 5, 2021 including James Burnell, his attorney in 
the Anacortes Municipal Court case at issue.  (Dkt. No. 99.)  In response to a government 
question about this inclusion, defense counsel represented that defendant would not be calling 
Mr. Burnell as a witness.  Should defendant raise an advice-of-counsel defense and / or make and 
involvement-of-counsel argument at trial, it will effect a waiver of the attorney-client privilege as 
to all materials relevant to an advice-of-counsel defense and / or involvement-of-counsel 
argument.  The government would also be entitled to discovery as to all documents or materials 
relevant to the assertion of such a defense or argument.  Thus, the government requests notice as 
soon as possible if defendant intends to raise an advice-of-counsel defense or make an 
involvement-of-counsel argument at trial.  See United States v. Crowder, 325 F. Supp. 3d 131, 
138 (D.D.C. 2018) ("Defendants decision on whether to assert the advice-of-counsel defense 
may impact the scope of discovery otherwise permitted or ordered, and thus risks unnecessary 
interruption and delay if asserted at trial .... [ and] because an advice-of-counsel defense is 
complex it may raise issues requiring additional briefing before trial."). 
 
 
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GOVERNMENT’S RESPONSE TO DEFENDANT’S MOTION IN LIMINE- 5 
U.S. v. Eric Shibley, CR20-174JCC 
UNITED STATES ATTORNEY 
700 STEWART STREET, STE 5220 
SEATTLE, WASHINGTON 98101 
(206) 553-7970 
 
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probation status.  Defendant appears to contend that he did not know that he was on 
probation when he filled out the loan applications.2  In order to prove that defendant 
knew that he was on probation, the government will elicit testimony from his probation 
officer about the requirements of his probationary term.  These terms included the 
requirement that he pay fines and costs, a requirement that he attend a Domestic Violence 
Victims Panel, that he attend a 52-week domestic violence perpetrators’ treatment 
program, and no contact with victims named in the underlying no-contact order. n order 
to prove that defendant knew he was on probation, the government will introduce that the 
defendant was still under active supervision and abiding by the terms of the judgment, 
including attending domestic violence training, at the time he applied for the loans.   
The government also notes that it will be introducing evidence of an undercover 
call with a federal agent at trial, where he is asked about his probation status.  On the call, 
defendant gives details about the circumstances that led to the conviction.  On the call, 
defendant repeatedly states that the case was resolved, and he was not on probation 
anymore to the undercover agent.  Again, this evidence is relevant to show that defendant 
made false statements:  when confronted about being on probation for the specific case at 
issue, he continues to falsely state that he is not.   
The government believes that the full details of defendant’s probation term and 
judgment, including that he was attending domestic violence treatment classes, are 
 
2 Alternatively, the government would stipulate that defendant was on probation at the time of 
the offense and that he knew that he was on probation at the time of the offense.  This would not 
preclude defendant from arguing, as he does in his brief, that he read Question 5 of the 
application incorrectly or did not think the question called for him to answer affirmatively.  If 
this stipulation were entered, the government would not seek to introduce evidence about the 
conviction or the terms of defendant’s probation.  The situation would be akin to Old Chief v. 
United States, 519 U.S. 172, 186 (1997), where the Court determined that the admission of a 
defendant’s prior conviction was improper in a felon in possession prosecution where the 
defendant’s offered stipulation was “not merely relevant but seemingly conclusive evidence of 
the element.”  In Old Chief, the only difference between the stipulation and the government’s 
evidence was the inclusion of the name of the prior conviction. 
 
Case 2:20-cr-00174-JCC     Document 102     Filed 11/08/21     Page 5 of 9

 
 
GOVERNMENT’S RESPONSE TO DEFENDANT’S MOTION IN LIMINE- 6 
U.S. v. Eric Shibley, CR20-174JCC 
UNITED STATES ATTORNEY 
700 STEWART STREET, STE 5220 
SEATTLE, WASHINGTON 98101 
(206) 553-7970 
 
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appropriately introduced in this case.  This is particularly true in light of the fact that 
defendant is arguing that he did not know he was on probation.    
Should the Court disagree, the government believes that the appropriate 
compromise is to remove any reference to “domestic violence”, “DV”, a “victim’s 
panel”, or any “violence/aggression treatment agency” on the judgment but allow the 
government to introduce evidence that defendant was attending classes and still subject to 
other terms of probation, including a no contact order, at the time he applied for the 
loans.  The government is also not opposed to a limiting instruction to ensure that the jury 
evaluates the evidence of the defendant’s probationary status appropriately. 
C. Defendant’s Medical Practice 
In its case in chief, the government will introduce evidence that defendant’s 
medical license was in “summary restriction” status as of January 2, 2020, meaning that 
he was no longer allowed to prescribe controlled substances.3  As part of the charged 
scheme, defendant applied for fraudulent loans in the name of his medical practice.  It is 
relevant to the case that defendant’s medical practice was already suffering in January 
2020, before the onset of the COVID-19 pandemic and before he applied for fraudulent 
loans.  Because the business was one of the businesses defendant used to apply for 
fraudulent loans, the status of that business is “intrinsically intertwined” with the charged 
scheme to defraud.  Evidence about defendant’s medical practice, namely that it was not 
allowed to prescribe controlled substances, is also necessary to present a coherent and 
comprehensible story about what sort of business defendant was operating.  In United 
States v. Anderson, 741 F.3d 938, 949–50 (9th Cir. 2013), the Ninth Circuit affirmed a 
district court’s ruling to allow evidence of an uncharged act of copyright infringement 
that took place six months after the charged conduct because it was inextricably 
intertwined with the charged offense.  The court held that the evidence of the uncharged 
 
3 The government does not intend to introduce evidence about why defendant’s medical license 
was in summary restriction status in its case in chief.   
 
Case 2:20-cr-00174-JCC     Document 102     Filed 11/08/21     Page 6 of 9

 
 
GOVERNMENT’S RESPONSE TO DEFENDANT’S MOTION IN LIMINE- 7 
U.S. v. Eric Shibley, CR20-174JCC 
UNITED STATES ATTORNEY 
700 STEWART STREET, STE 5220 
SEATTLE, WASHINGTON 98101 
(206) 553-7970 
 
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conduct “help[ed] explain [the defendant’s] business operations” and thus was 
inextricably intertwined with the charged conduct.  
Should the Court not believe that evidence about the summary restriction on 
defendant’s license is inextricably intertwined with the charged conduct, it is also 
admissible under Rule 404(b). The fact that his license was suspended is relevant to show 
that his medical operation was not operating as represented in the loan applications, and 
also shows motive to seek out fraudulent loans.  
The government has also uncovered evidence that defendant continued to 
prescribe controlled substances after his license was restricted in January 2020.  He did 
this primarily by backdating the prescription date.  The government does not plan to 
introduce evidence of this practice in its case in chief.  However, the government does 
reserve the right to introduce this evidence should the defendant testify at trial or in its 
rebuttal case.   
Currently, the government contemplates introducing evidence about his 
prescribing practice in two ways.  First, defense counsel has provided the government 
with certain driver’s licenses of individuals defendant may claim as his “employees.”  
The government has found evidence that defendant was prescribing to certain of these 
individuals.  The government should be permitted to introduce evidence that defendant’s 
purported employees were patients that he was prescribing controlled substances to.  This 
fact is relevant because it could suggest that defendant had their licenses because they 
were patients, not employees. 
Second, the government would ask defendant about the fact that he continued to 
prescribe controlled substances after his license was suspended should he testify pursuant 
to Fed. R. Evid. 608(b)(1).  Rule 608(b)(1) states: 
Except for a criminal conviction under Rule 609, extrinsic evidence is not 
admissible to prove specific instances of a witness’s conduct in order to 
attack or support the witness's character for truthfulness. But the court may, 
on cross-examination, allow them to be inquired into if they are probative 
of the character for truthfulness or untruthfulness of . . . the witness. 
Case 2:20-cr-00174-JCC     Document 102     Filed 11/08/21     Page 7 of 9

 
 
GOVERNMENT’S RESPONSE TO DEFENDANT’S MOTION IN LIMINE- 8 
U.S. v. Eric Shibley, CR20-174JCC 
UNITED STATES ATTORNEY 
700 STEWART STREET, STE 5220 
SEATTLE, WASHINGTON 98101 
(206) 553-7970 
 
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The fact that defendant continued to prescribe controlled substances after his license was 
suspended is wholly probative of his character for truthfulness.  Most of the prescriptions 
he wrote were backdated, meaning that they contained a false statement.  The 
government should be permitted to ask defendant about this on cross-examination should 
he testify.   
D. Defendant’s Prior Civil Litigation and Bankruptcy 
The government does not plan to introduce evidence related to defendant’s prior 
civil litigation or bankruptcy in its case in chief.  However, the government reserves the 
right to impeach the defendant with any prior inconsistent statements he made during any 
of his prior civil litigation or bankruptcy should he choose to testify. 
E. Defendant’s Competency Report 
The government will not seek to use statements from defendant’s court-ordered 
competency report in any manner at trial. 
// 
// 
 
 
 
 
 
 
 
 
 
 
 
 
Case 2:20-cr-00174-JCC     Document 102     Filed 11/08/21     Page 8 of 9

 
 
GOVERNMENT’S RESPONSE TO DEFENDANT’S MOTION IN LIMINE- 9 
U.S. v. Eric Shibley, CR20-174JCC 
UNITED STATES ATTORNEY 
700 STEWART STREET, STE 5220 
SEATTLE, WASHINGTON 98101 
(206) 553-7970 
 
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III. 
CONCLUSION 
The government respectfully requests that the Court deny in part defendant’s 
Motion in Limine.  
DATED this 8th day of November, 2021. 
 
Respectfully submitted, 
 
 
 
NICHOLAS W. BROWN 
 
 
 
 
 
 
 
Acting United States Attorney  
 
JOSEPH BEEMSTERBOER 
 
 
 
 
 
 
 
Acting Chief, Fraud Section,  
Criminal Division 
U.S. Department of Justice  
 
 
s/ Brian Werner 
 
 
 
BRIAN WERNER 
Assistant United States Attorney 
 
s/ Laura Connelly 
 
 
 
LAURA CONNELLY 
Trial Attorney
 
Case 2:20-cr-00174-JCC     Document 102     Filed 11/08/21     Page 9 of 9

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