bank records. (See page 18 of Investigator Gallo’s affidavit. These matters were

not reflected in F.B.I. summaries used at trial because they were based solely on

Mr. Hall’s records without any comparison to bank records.

8.

The Movant has further discovered false information which Hall

testified to at trial, since his bank records were not available to compare and

confront testimony given about San Angelo Feed Yard:

a.

That Mr. Hall lied when he testified that he only knew of one load of
cattle which were financed since there are 2 documented in records
for 1999 alone and records show that Hall received financial payment
for the first one.

That every load of cattle is assigned a lot number based upon the
month and date (ie 1025 for October 25" load) and the invoice
number in Movant’s records matched San Angelo’s records whereas
every invoice number listed by Hall did not match San Angelo.

That the bookkeeping system was designed by Hall to manipulate
figures. For example, see paragraph 103 of Investigator Gallo’s
Affidavit (page 20) where Hall writes off a deficit as a bad debt when
it really proves to be a feed lot charge - see paragraph 104 where it

shows that cattle stayed on the lot for one month and there was a

Page 5


It is well recognized that constitutional defects in the process are cognizable
on a Motion to Vacate or Set Aside. Jackson v. United States, 495 F.2d 349 (8"
Cir. 1974). If there has been a denial of the substance of a fair trial then the
validity of proceedings may be collaterally attacked. United States v. Re, 372
F.2d 641 (2TM Cir. 1967). Clearly in the case at bar, where the Movant asserts that
was denied his Sixth Amendment Right to effective assistance of appointed
counsel because there was never any confrontation of business records, never any
request or effort obtain bank records which would be readily available, as well as a
failure to request a severance which would have tried two separate events on their
own merit and not improperly joined them for consideration by the same jury,
collateral attack is available and warrants an evidentiary hearing.

On a Motion to Vacate sentence the issue is whether the alleged error
amounted to fundamental defect which resulted in a miscarriage of justice. United
States v. Johnson, 615 F.2d 1125, (5" Cir. 1980). The court appointed counsel has
a duty to interview potential witnesses and to make independent examination of
factual circumstances involved. Rummel v. Estelle, 590 F.2d 103, 104 (5" Cir.
1979). It is herein asserted that this independent examination was inadequate
without Hall’s bank records, especially in view of Hall’s subsequent Indictment on

exactly the same type of fraud.

Page 10


change in the verdict. Further, the Government argued that the scheme to defraud
was pertaining “Mr. Hall and others”. It is here argued that the scheme was made
by Mr. Hall and that he was not a victim of it. Therefore the “others” should be
tried separately.

11. | The Petitioner was denied his Fifth and Fourteenth Amendment due
process of law because if the F.B.I. or other governmental agencies responsible for
the investigation of this case never sought the bank records of Mr. Hall and had
they done so and properly investigated Mr. Hall, they would have discovered the
fraud that was being perpetrated in the State of Mississippi which was under
investigation as early as 2004 and such information would have been available at
the time of trial of the Movant. This limitation was recognized in the testimony of
F.B.I. Analyst Kelly who testified at the trial (transcript page 179, line 18-24) that
“St got frustrating to use the records that Mr. Hall was trying to provide both as far
as physical invoices and letters that even his internal accountant records were
difficult to follow because of his source of record keeping.” This testimony is an
example of the confusing and misleading documentation provided by Hall and
shows the need for proper effort to simply subpoena Hall’s bank records to
compare to see if they in fact corroborated the claims of Mr. Hall or contradicted

them. It is herein asserted that it is likely the same type of fraud that Mr. Hall was

Page 7


charge for that stay.

9. The movant was denied due process of law as protected under his Fifth
and Fourteenth Amendment Rights because the trial Court improperly joined two
separate allegations of fraud involving different evidence and different witnesses.
It is herein asserted that if these matters had been severed for trial that this would
have directly impacted the verdict as most of the evidence was directed at Mr. Hall
and his business operation. Appointed trial counsel never contested the joinder of
these separate allegations for trial despite the link being a scheme to defraud Hall
and others. The new evidence supports the movant’s argument that he did not
defraud Hall and therefore, he should have been tried separately. ,

10. The Petitioner asserts that he is denied his Sixth Amendment right of
effective assistance of appointed counsel because his trial counsel never sought to
sever the trial of Counts I-VI alleging a scheme to defraud involving Richard Hall
from July 1999 through August 2002 from the Counts VIII-X which allege that
from April 2001 through July 2001 that he attempted to get a separate and distinct
to defraud and paid money or property transmitted by Interstate Commerce from a
separate individual and a separate location. The majority of the evidence
pertained to Mr. Hall’s Counts I-VI and it is here asserted that if he had obtained

a separate trial on Counts VIII-X that there would be a strong likelihood of a

Page 6


relied upon only Richard Hall’s own doctored records. Counsel for the Movant
failed to subpoena, demand production of, or pursue the bank records of Richard
Hall which it is now asserted would have revealed the double entry techniques,
lack of corroboration, and other frailties to demonstrate the problems in Richard
Hall’s bookkeeping. This is readily seen when viewing the post conviction
investigation done by Investigator Patricia Gallo who did have access to the
records of Hall, and the bank records of the Movant together with bank records of
several of the alleged victims. This is further brought to light when it is learned
that witness Hall has since been Indicted for the same type of fraudulent activity
in the Federal District Court in the state of Mississippi and has entered a plea
admitting that he committed these fraudulent bookkeeping practices for exactly the
same reasons the Movant alleged in his defense at trial. What the Movant needs to
show now are the specific allegations such as a failure to interview witnesses, to
seek factual information in possession of the Government or to otherwise explore
all avenues leading to facts relevant to guilt. United States v. Johnson, 582 F.2d
1186 (8" Cir. 1978). Certainly if the Government failed to disclose exculpatory
material in violation Brady v. Maryland, a constitutional claim, based upon
violation of the Defendant’s right to due process is available. Ruiz v. United

States 221 F. Supp. 66 (Mass. 2012). Aff'd 339 F.3d 39 (2TM Cir. 2002).

Page 9


United States District Court for the
Northern District of Florida

UNITED STATES OF AMERICA Case Number: 1:04 CR 1-001 SPM

Plaintiff / Appellee OG av aax spn-9 ia
ees © na
vs. c =
a.
RONALD RYAN SHEPARD ry
Defendant / Appellant 3
8

MOTION TO VACATE JUDGEMENT AND SENTENCE

Comes now the Movant, Ronald Ryan Shepard, by and through his
undersigned counsel pursuant to 28 U.S.C. Section 2255 and moves to vacate his
judgement and sentence on the grounds that the same were obtained in violation of
his Fifth, Sixth and Fourteenth Amendment Constitutional rights.

1. The movant was charged by indictment in Counts I-VII that between July
of 1999 through August 2002 he participated in a scheme to defraud and obtain

money and property transmitted by Interstate Commerce Wire Communications
and in Counts VIII-X that, between April 2001- July 2001, he attempted to
execute a separate and distinct scheme to defraud and obtain money or property

transmitted by Interstate Commerce by wire communications. The Movant went to

Page 1

FILEB


CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing has been furnished to R.
Jerome Sanford, Assistant United States Attorney, 300 East University Avenue,
Suite 310, Gainesville, Florida 32601 and Thomas E. Miller, Federal Public
Defender, 101 SE 2TM Place, Suite 112, Gainesville, Florida 32601 by regular U.S.

mail delivery on this 3D. day of October 2006.

LAW OFFICE OF
STEPHEN N. BERNSTEIN

/

/

CDC

f
STEPHEN N. BERNSTEIN
Post Office Box 1642
Gainesville, Florida 32602
Florida Bar Number 145799
(352)-373-9555 (phone)
(352) 373-5277 (facsimile)
Counsel for Movant / Defendant

Page 12


Dated this 50 day of October 2006.

S$ ephen N. Bernstein

STATE OF FLORIDA
COUNTY OF ALACHUA

I, RONALD SHEPARD, signing for by means of a Power of Attorney,
CATRINA SHEPARD, have read the foregoing information and find it to be true
and correct to the best of my knowledge and belief.

EE

Ronald Shepard

STATE OF FLORIDA
COUNTY OF ALACHUA

I HEREBY CERTIFY, that on this day before me, an officer duly qualified
to take acknowledgments personally appeared CATRINA SHEPARD , who is
personally known to me and known to be the person who executed the foregoing
instrument, and acknowledged before me that she executed the same.

WITNESS my hand and official seal in the County and State aforesaid this
30" day of October 2006.

Dune SS \how son
NOVARY PUBLIC, State of Florida

. ots ‘PUBLIC. = FLORIDA,
Print name: COMMISSION # DDBZOTZS

7
BONDED THRU 1-888-NOTARY?

(SEAL)

Page 11


perpetrating against the state of Mississippi and would have been found to exist
involving the banks which loaned Mr. Hall money, the clients which paid Mr. Hall
money or did business with him and the insurance carrier who paid Mr. Hall
money for his alleged losses.

12. At the trial, the Movant was represented by the Assistant Federal
Public Defender, Tom Miller, 101 SE 2" Place, Ste 112, Gainesville, Florida
32601 from initial the initial appearance through the trial and was represented by
the undersigned counsel at sentencing and on direct appeal.

WHEREFORE, the movant prays that this Court grant him an evidentiary
hearing and all relief to which he may be entitled to in this proceeding including a
new trial.

MEMORANDUM IN SUPPORT THEREOF

The Movant in a Motion to Vacate Judgement and Sentence on the grounds
of ineffective assistance of counsel must show a deficiency in counsel’s part by
failing to investigate, must provide sufficiently precise information as to what
should have been pursued to be effective assistance of counsel. Richardson v.
United States, 379 F.3d 485 (7" Cir. 2004). The Movant here seeks to
demonstrate that there was false testimony by the Government’s main witness,

Richard Hall, which was not confronted at the time of trial because the prosecution

Page 8


records to confront the records created by Mr. Hall, they would have been useful
to substantiate the defense utilized by the Movant. The Movant claimed at his trial
that it was Mr. Hall who orchestrated the creation and utilization of false
documents in the case at bar and not the Movant . The Movant had argued that it
was Hall who created the business plan and scheme and directed the creation of
the records with the intent to defraud the banks who extended loans to Mr. Hall for
this operation, the clients who paid money to Mr. Hall for cattle that either did not
exist or they did not receive, and insurance carriers who paid money to Mr. Hall
for non existent losses. It is herein asserted that production of Hall’s bank records
would have caused a different result at the trial of the Movant, especially in view
of the fact that the jury’s verdict already rejected a number of the counts pertaining
to Mr. Hall at the trial. Attached is an affidavit of Investigator Patti Gallo who
has reviewed Movant’s bank records and compared them to Mr. Hall’s records and
Movant’s records. This affidavit is incorporated by reference.

7. The Movant has since the trial discovered that Richard Hall employed
a pattern of double invoicing in his own records to show that the Movant owed
him money when in fact, payments were credited else where in his own records.
This was noticed by Investigator Gallo when she compared the bank records of the

buyers of cattle (ie Martin Meats) to the booking system of Hall and Movant’s

Page 4


Hall. See Affidavit of Patricia Gallo, Investigator with the Federal Public
Defender’s Office who conducted this document by document analysis by Martin
Meat’s invoices and Movant’s bank records compared to Mr. Hall’s records relied
on by the Government, attached as Exhibit “A”.

5. The Movant now asserts that he was denied his Sixth Amendment right
to effective assistance of appointed counsel because his trial counsel never
confronted the business records of the alleged victim, Richard Hall, by seeking his
disclosure of his bank records even though it was Mr. Hall’s business
documentation and personal testimony that formed the basis of the prosecution’s
case against the Movant. Significantly, after the conviction, judgement and
sentence of the Movant, Mr. Hall has been indicted and now plead guilty to
committing similar fraudulent behavior in operating a scheme to defraud the state
of Mississippi by falsifying his business records, urging family and friends to
claim compensation for work never done in order to defraud the state using fake
invoices totaling $269,628.00 which were paid by the state of Mississippi, and
billing the state of Mississippi for $187,725.00 for equipment that he never even
purchased. A main basis for this Mississippi prosecution was predicated upon a
review by the F.B.I. of Hall’s bank records.

6. Ifthe Movant had sought and obtained through his counsel the bank

Page 3


trial and on July 15, 2004 was convicted by a jury on only counts V, VI, VII, VIII,
IX, and X. On December 13, 2004 the Movant was sentenced to 57 months on
each count, to run concurrent, in the Florida Northern District Court.

2. That the Movant filed a Notice of Appeal to the Eleventh Circuit
Court of Appeals raising evidentiary objections, contesting the denial of a Motion
for Judgement of Acquittal on insufficiency of evidence, and objecting to the
District Court’s application of sentencing guidelines. The Eleventh Circuit Court
of Appeals upheld the Judgement and Sentence on December 16, 2005.

3. The Movant has not filed any petitions, applications or motions with
respect to this judgement in any federal court other than the direct appeal to the
Eleventh Circuit Court of Appeals.

4. The prosecution at trial was primarily based upon Richard Hall’s
records of the cattle transactions. A review of Richard Hall’s own records when
compared to the actual invoices for cattle reveal a conflicting view of the facts.
After the trial, when the payments which Richard Hall claimed were made or
received in his records were compared to the actual payments made, as reflected in
the Movant’s bank records ,it is noticed that, while Mr. Hall claims he was owed
$98,130.20 in actuality there was a difference of only $1,432.88 and that the rest

of the payments were hidden by design of false documents maintained by Mr.

Page 2