United States’ Notice of Intent to Use Rule 404(b) Evidence — United States v. Eric Dean Sheppard, No. 1:22-cr-20290-BB (Dkt. 77, S.D. Fla.)
Summary
In United States v. Eric Dean Sheppard, Case No. 22-20290-CR-BLOOM(s) in the Southern District of Florida, the government gives notice under Federal Rule of Evidence 404(b) that it intends to use evidence of other acts at trial. Sheppard is charged with nine counts of wire fraud and five counts of aggravated identity theft over false Paycheck Protection Program and Economic Injury Disaster Loan applications, some supported by forged documents. The notice says a witness, J.G., who worked for Sheppard for 20 years, told the government on September 8, 2023 that in 2018 Sheppard forged J.G.'s signature and named J.G. as sponsor on a non-immigrant visa application for a graphic designer position at HM Management and Development, LLC. The government argues the act shows the same state of mind as the charged offenses. It was filed on September 14, 2023.
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Case 1:22-cr-20290-BB Document 77 Entered on FLSD Docket 09/14/2023 Page 1 of 5
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 22-20290-CR-BLOOM(s)
UNITED STATES OF AMERICA
vs.
ERIC DEAN SHEPPARD,
Defendant.
__________________________________/
UNITED STATES’ NOTICE OF INTENT
TO USE RULE 404(B) EVIDENCE
The United States of America, through the undersigned Assistant United States Attorney,
files this Notice, pursuant to Federal Rule of Evidence 404(b)(3), of its intent to use certain
evidence at trial.
The defendant is charged with nine counts of wire fraud, 18 U.S.C. § 1343, and five counts
of aggravated identity theft, 18 U.S.C. § 1028A(a)(1), relating to the submission of false and
fraudulent loan applications under the Paycheck Protection Program and the Economic Injury
Disaster Loan program, two loan programs backed and funded through the U.S. Small Business
Administration. The defendant’s loan applications not only contained materially false information,
but many of the supporting documents were falsified, and some were forged with the name, title
and signature of others.
During an interview of a potential witness in this case, J.G., last Friday, September 8, 2023,
the United States learned of evidence it will seek to introduce at trial pursuant to Federal Rule of
Evidence Rule 404(b), for the purpose of proving intent, preparation, plan, knowledge, absence of
mistake, or lack of accident. J.G. worked for the defendant for the past 20 years, through the end
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of March 2020. J.G. had significant responsibilities for the defendant’s businesses, having been
the chief financial officer for a few years, and later as a full-time consultant/independent contractor
for the defendant’s real estate business.
In 2019, J.G. learned that in 2018, the defendant had forged J.G.’s signature and had
misrepresented J.G. as the applicant/sponsor for a non-immigrant visa application on behalf of an
individual who would purportedly fill a full-time “graphic designer” position at the defendant’s
business, HM Management and Development, LLC. The misrepresentations and the forged
signature of J.G. were made on a company letter addressed to the United States Embassy in
Mexico, purportedly submitted by J.G., as the Chief Financial Officer (which he no longer was),
and on a form prepared for filing with the U.S. Department of Homeland Security in which the
defendant’s immigration counsel (not counsel in this case) entered a notice of appearance on behalf
of the applicant/ sponsor, J.G. Upon learning of the defendant’s unauthorized misuse of his name
and signature, J.G. confronted the defendant about it. The defendant responded by saying, in
effect, that he would have to clean up the problem that J.G. created, and the defendant then wrote
a letter to the immigration counsel to whom the defendant had provided the forged documents. In
the letter, the defendant attempted to explain the “misunderstanding” surrounding the use of J.G.’s
signature.
The government intends to introduce the evidence outlined in this Notice for the uses
authorized by Fed. R. Evid. 404(b), specifically for the purpose of proving intent, opportunity,
preparation, plan, knowledge, absence of mistake, and lack of accident. The Eleventh Circuit has
long held that the admissibility of Aother crimes@ evidence pursuant to Rule 404(b) must be
determined by applying a three-part test: (1) it must be relevant to an issue other than the
defendant=s character; (2) the act must be established by sufficient proof for the jury to find that
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the defendant committed the extrinsic act by a preponderance of the evidence; and (3) the probative
value must not be substantially outweighed by its undue prejudice. United States v. Chavez, 204
F.3d 1305, 1317 (11th Cir. 2000); United States v. Zapata, 139 F.3d 1355 (11th Cir. 1998).
AA defendant who enters a not guilty plea makes intent a material issue which imposes a
substantial burden on the government to prove intent, which it may prove by qualifying Rule
404(b) evidence absent affirmative steps by the defendant to remove intent as an issue.@ Zapata,
139 F.3d at 1358. A>Where the extrinsic offense is offered to prove intent, its relevance is
determined by comparing the defendant=s state of mind in perpetrating both the extrinsic and
charged offenses.=@ United States v. Edouard, 485 F.3d 1324, 1345 (11th Cir. 2007) (quoting United
States v. Dorsey, 819 F.2d 1055, 1059 (11th Cir. 1987)); see also, United States v. Ellisor, 522 F.3d
1255 (11th Cir. 2008).
The events that J.G. would describe involve making material misrepresentations to federal
agencies – the U.S. Department of State and the Department of Homeland Security – and making
it appear as if a different representative of the business, i.e. J.G., was the one putting forth the
information. The defendant used J.G.’s identity without his knowledge or consent on documents
containing false representations. The defendant’s conduct in this case indicates he had the same
state of mind in presenting false information to lenders and the SBA, including on tax returns and
other documents that were falsified and forged. The defendant again used other individuals’ titles
and identities without their knowledge or consent on the falsified and forged documents.
In United States v. Barrington, the Eleventh Circuit upheld the admissibility of Rule 404(b)
evidence where the defendant was charged with conspiracy to commit wire fraud and aggravated
identity theft in a scheme to change students’ grades on the university’s grading system. 648 F.3d
1178 (11th Cir. 2011). The Court found that the testimony of a cooperating co-defendant that the
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defendant had previously changed grades using forged instructor signatures on grading documents
was highly probative of the defendant’s intent. Id. at 1187. In Barrington, the Court found that
the state of mind required for the charged offense and the extrinsic act was identical, and thus, the
first prong of the Rule 404(b) test was satisfied; the uncorroborated testimony of the co-defendant
was sufficient evidence for the jury to find that the defendant committed the extrinsic act; and the
probative value of the extrinsic evidence was not outweighed by unfair prejudice. Id.; see also,
United States v. Garcia, 880 F.2d 1277 (11th Cir. 1989) (Court upheld Rule 404(b) evidence of the
defendant previously signing another individual’s name to a document where the defendant was
charged with making false statements on a loan application).
In this case, the state of mind required for the charged offenses is the same as the state of
mind of the defendant in committing the extrinsic act, and thus, the 404(b) conduct is highly
probative of his intent. The expected evidence would be proved by the testimony of J.G., copies
of the falsified and forged documents that J.G. received, and a copy of the defendant’s letter to his
former immigration counsel making implied admissions about his conduct. The records are
expected to corroborate the witness, and the evidence in its totality will satisfy the government’s
burden to establish the extrinsic acts by a preponderance of the evidence. Finally, any risk of
unfair prejudice possibly caused by admitting evidence of other fraudulent activity described here
“will be mitigated by the district court’s limiting instruction to the jury.” Eduard, 485 F.3d at 1346
(in drug trafficking case, court upheld admissibility of Rule 404(b) evidence of defendant’s prior
drug smuggling activities and found that any unfair prejudice was reduced by the court’s limiting
instruction to the jury).
.
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Case 1:22-cr-20290-BB Document 77 Entered on FLSD Docket 09/14/2023 Page 5 of 5
Respectfully submitted,
MARKENZY LAPOINTE
UNITED STATES ATTORNEY
By: s/Aimee C. Jimenez
Aimee C. Jimenez
Assistant United States Attorney
Court No. A5500795
99 N.E. 4th Street
Miami, Florida 33132-2111
Tel: (305) 961-9028
Fax: (305) 530-7976
Email: aimee.jimenez@usdoj.gov
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on September 14, 2023, I electronically filed the foregoing
document with the Clerk of the Court using CM/ECF.
s/Aimee Jimenez
Aimee C. Jimenez
Assistant United States Attorney
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