Court filing

Indictment - United States v. Tracy and Carolyn Wade

Record facts

Court	U.S. District Court for the Southern District of Florida
Filed	2024-09-04

U.S. District Court for the Southern District of Florida · No. 0:23-cr-60173-KMW · Doc. 145 · 2024-09-04 · Docket on CourtListener

Summary

The United States' response in opposition to Defendant Carolyn Denise Wade's amended motion to dismiss Counts 4, 5, 8 and 9 of the Superseding Indictment, in United States v. Carolyn Denise Wade and Tracy D. Wade, No. 0:23-cr-60173-KMW, in the U.S. District Court for the Southern District of Florida, entered September 4, 2024 as Document 145. The motion asserts vindictive and retaliatory prosecution after a mistrial. The response recounts a September 14, 2023 indictment charging one count of wire fraud under Title 18, United States Code, Section 1343, a May 2024 jury trial that ended in a mistrial after the jury reported it was deadlocked, a plea offer, and the Superseding Indictment returned June 27, 2024. It argues that no presumption of vindictiveness arises, that any presumption is rebutted, and that actual vindictiveness is not established, and asks the Court to deny the Motion.

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA

CASE NO. 23-60173-CR-KMW(s) (GRAHAM)

UNITED STATES OF AMERICA

vs.

CAROLYN DENISE WADE and
TRACY D. WADE,

Defendants.
/

UNITED STATES’ RESPONSE IN OPPOSITION
TO DEFENDANT CAROLYN DENISE WADE’S AMENDED MOTION
TO DISMISS COUNTS 4, 5, 8 AND 9 OF THE SUPERSEDING INDICTMENT [DE 130]

Introduction

The United States of America, by and through its undersigned counsel, hereby responds in
opposition to the “Amended Defendant Carolyn D. Wade’s Motion to Dismiss Counts 4, 5, 8 and
9 of the Superseding Indictment for Vindictive and Retaliatory Prosecution and Incorporated
Memorandum of Law,” which Defendant Carolyn Denise Wade (“Defendant”) filed on August
21, 2024, at docket entry (“DE”) 130 (the “Motion” or “Mot.”).1 In sum, the Motion seeks
dismissal of Counts 4, 5, 8, and 9 of the Superseding Indictment (the “New Counts”), as to Carolyn
Wade only, based upon Defendant’s assertion that “the government’s decision to file those charges
was motivated by vindictiveness” (Mot. at 1, 8). Specifically, Defendant asserts that the
government’s decision to file the New Counts after a mistrial was improperly motivated by

1 The Motion amended a prior motion to dismiss filed by Defendant on August 19, 2024 (DE 128). On
August 21, 2024, the Court entered an Amended Paperless Order Referring Motion (DE 133), pursuant to
which the Court denied as moot the original motion to dismiss (DE 128), and referred this amended Motion
(DE 130) to U.S. Magistrate Judge Patrick M. Hunt for a report and recommendation. Counsel for
Defendant did not confer with the government before filing the original motion or this amended Motion, as
required by Local Rule 88.9.
Case 0:23-cr-60173-KMW Document 145 Entered on FLSD Docket 09/04/2024 Page 1 of 18

Defendant taking the following two actions during the jury trial on the original indictment: 1) filing
a motion to dismiss the indictment for prosecutorial misconduct (which the Court denied); and 2)
objecting to the Court reading an Allen charge after the jury advised the Court that it was
deadlocked (which the Court sustained). Defendant’s theory to dismiss the New Counts is both
legally and factually erroneous.
As explained herein, the Motion wholly fails for the following three reasons: 1) as a matter
of well-settled law, the filing of the New Counts following a mistrial, notwithstanding Defendant’s
unsuccessful motion to dismiss and Allen charge objection, does not give rise to a presumption of
prosecutorial vindictiveness; 2) even assuming, solely for the sake of argument, that a presumption
of prosecutorial vindictiveness could arise in these circumstances, such presumption is rebutted by
the government’s legitimate basis for filing the New Counts, which is disclosed herein; and 3)
Defendant has not established actual prosecutorial vindictiveness.
Accordingly, the United States respectfully asks the Court to deny the Motion (DE 130) in
its entirety.
Procedural History
1.
Original Indictment and May 2024 Trial
On September 14, 2023, a grand jury sitting in the Fort Lauderdale Division of this Court
(the “Grand Jury”) returned an indictment (DE 3) (the “Indictment”) charging Defendant with one
count of wire fraud, in violation of Tile 18, United States Code, Section 1343. In sum, the
Indictment alleged that, from May 2021 through August 2021, Carolyn Wade, then employed by
the Broward County Sheriff’s Office (BSO) as a Deputy Sherriff in the Detention Department,
participated in a scheme to defraud in which she obtained a loan through the Small Business
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Administration (SBA)’s Paycheck Protection Program (“PPP”) based upon materially false
information. Such materially false information allegedly included, among other things, that a sole
proprietorship having the business legal name “Carolyn Wade” earned “$113,560” of gross income
in 2019. The Indictment resulted from an investigation that led to similar charges against 16 other
then-current or former BSO Deputy Sheriffs. These charges were alleged in indictments and an
information filed around the same time, but all in separate cases, in the Southern District of Florida.
Defendant pleaded not guilty and proceeded to a jury trial. The trial commenced on May
13, 2024, in the Miami Division before Senior United States District Judge Donald L. Graham.
In its case in chief, the government called 10 witnesses and introduced 90 exhibits into evidence.
The defense called one witness (Defendant’s husband, Tracy Wade) and introduced a handful of
exhibits. The Court denied all motions for judgment of acquittal pursuant to Rule 29. The Court
also conducted an evidentiary hearing on Defendant’s motion to dismiss the indictment based on
prosecutorial misconduct (DE 65) (the “Misconduct Motion”), which Defendant filed in the
overnight hours before the fourth day of trial. At the end of the hearing, the Court denied the
Misconduct Motion.2
The case was submitted to the jury on May 20, 2024, and the jury deliberated for two days.
During its second day of deliberations on May 21, the jury submitted three notes to the Court, each
of which indicated they were deadlocked (DE 71 at 2, 3, and 4). After receipt of the first note
(DE 71 at 4), the Court re-read the Eleventh Circuit instruction on the duty to deliberate (B11) (Tr.

2 The United States disputes Defendant’s representations and characterizations of the facts and
circumstances concerning the Misconduct Motion that she asserts in this Motion. However, as explained
further herein, the facts and circumstances concerning the Misconduct Motion have no bearing on the
resolution of this Motion since, under binding precedent, they neither give rise to a presumption of
vindictiveness nor establish actual vindictiveness.

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at 9-10).3 After receipt of the second note (DE 71 at 3), the Court had a discussion with the parties
(outside the presence of the jury) concerning case law on an Allen charge (Tr. at 14-23).
Following that discussion, the Court suggested advising the jury to make one last attempt to reach
a verdict, without reading the Court’s proposed Allen charge. Defendant did not object to the
Court’s suggestion (Tr. at 22-23). At that point, for the first—and only—time during trial, the
government asked the Court to give its proposed Allen charge (Tr. at 22). The Court declined to
do so. Instead, the Court advised the jury to take one last opportunity to see if it could reach a
verdict. After receipt of the third note (DE 71 at 2), the government did not renew its request for
an Allen charge and consented to the mistrial. The Court declared a mistrial based upon the jury’s
failure to reach a unanimous verdict (DE 72). At no time during trial did the Court provide the
jury, in writing or orally, the Eleventh Circuit Pattern Allen charge or the Court’s modified version
of such Allen charge.
2.
Post-Trial Plea Negotiations
Two days after the mistrial, on May 23, the government contacted defense counsel by email
to ask if they were interested in a plea discussion to resolve the case without the need for a new
trial. Later that day, counsel responded affirmatively, and the parties had a telephone discussion
the next day, May 24. During the May 24 plea discussion, the government proposed a plea offer
and, immediately after the call, memorialized its verbal offer in writing and formally extended the
plea offer to Defendant by email to her counsel of record.

3 Citations to “Tr.” refer to the transcript of the jury trial proceedings on May 21, 2024, which include all
proceedings during the jury’s second day of deliberations, a copy of which is filed herewith as Exhibit 1.
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The material terms of the May 24 plea offer included Defendant agreeing to waive
indictment and plead guilty to an information that would charge her with one count of making a
false statement to the SBA, in violation of Title 15, United States Code, Section 645(a). In its
written offer, the government noted that the maximum penalty for this offense was two years’
imprisonment and a fine of up to $5,000, which was significantly less than the maximum penalty
for wire fraud charged in the original indictment (that is, 20 years’ imprisonment and a fine of up
to $250,000). The government’s written offer further advised that, in exchange for this plea, the
government would agree to dismiss the original indictment, and recommend in the plea agreement
a sentence of time served with no probation, no fine, no forfeiture, and restitution of $20,833.
The government asked defense counsel to respond to the May 24 plea offer by Friday, May
31, 2024, at 5:00 p.m., giving Defendant a full week to consider the offer. The government
received no response until June 4, 2024, when defense counsel sent an email at 10:15 p.m. advising
that Defendant had rejected the May 24 plea offer.4
3.
June 18, 2024 Status Conference
On June 18, Judge Williams held a status conference hearing, via Zoom, on the parties’
intentions regarding a new trial (DE 85). The government advised the Court and defense counsel
that it intended to retry Defendant, and that it expected the grand jury to return a superseding

4 In his June 4 email rejecting the May 24 plea offer, defense counsel made a counteroffer, which proposed
Defendant pleading guilty to theft of government property, in violation of Title 18, United States Code,
Section 641. Before the government could respond to that counteroffer, counsel sent a follow-up email an
hour later at 11:15 p.m., which asked the government to agree that, for purposes of this statute, the loss
amount was less than $1,000 (which, in effect, would constitute a misdemeanor punishable by a term of
imprisonment of less than one year, as opposed to a felony). The government responded the next day, June
5, advising that while it would consider resolving the case with a plea to this offense, the government could
not agree to a statutory loss amount of less than $1,000 since there was no factual basis to support that
number. About an hour later, counsel replied that Defendant was unwilling to plead guilty to a felony.
No further plea negotiations ensued.
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indictment the following week. The government further advised that it expected the superseding
indictment would include additional charges against Defendant and a new defendant. At the
conclusion of the hearing, the Judge Williams thanked the government for its candor and advised
that the Court would set a trial for a future date once the superseding indictment was filed.
4.
Superseding Indictment

The Grand Jury returned the Superseding Indictment on June 27, 2024 (DE 188), which
charged Defendants Carolyn Wade and Tracy Wade with one or more of the following offenses:
conspiracy to commit wire fraud, in violation of Tile 18, United States Code, Section 1349 (Count
1); wire fraud, in violation of Tile 18, United States Code, Section 1343 (Counts 2-3); conspiracy
to make false statements to the SBA, in violation of Tile 18, United States Code, Section 371
(Count 4); and false statements to the SBA, in violation of Title 15, United States Code, Section
645(a) (Counts 5-10).
With respect to the conspiracy to commit wire fraud (Count 1), the Superseding Indictment
alleged that, from May 2021 through August 2021, Defendants agreed with each other, with
Haydee Rivero, f/k/a Haydee Granados (“Granados”), and with others, to obtain PPP loans based
upon materially false and fraudulent information, including fictitious tax documents. 5 The
substantive wire fraud counts alleged that, from May 2021 through August 2021, Defendants
participated in a scheme to defraud in which they obtained PPP loans based upon materially false
and fraudulent information, including fictitious tax documents. Count 2 charged Tracy Wade
with causing the execution of a wire communication in interstate commerce related a fraudulent

5 Granados was charged by information filed on July 1, 2024, in case number 24-60124-CR-Smith. The
information charges Granados with one count of conspiracy to commit wire fraud and make false statements
to the SBA, in violation of Title 18, United States Code, Section 371.

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PPP loan in his name, and Count 3 charged both Defendants with causing the execution of a wire
communication in interstate commerce related to a fraudulent PPP loan in Carolyn Wade’s name.6
The conspiracy to make false statements to the SBA (Count 4) alleged that, from May 2021
through August 2021, Defendants agreed with each other, with Granados, and with others, to make
false statements to the SBA in PPP loan applications (using SBA Form 2483-C) and SBA PPP
loan forgiveness applications (using SBA Form 3508S). Additionally, Carolyn Wade and Tracy
Wade were each charged individually with three counts of making false statements to the SBA in
their respective PPP loan applications and forgiveness applications (Counts 5, 8, and 9 as to
Carolyn Wade and Counts 6, 7, and 10 as to Tracy Wade).
Overview of the Instant Motion

The Motion seeks dismissal of the New Counts (defined supra as Counts 4, 5, 8, and 9), as
to Defendant Carolyn Wade only, based upon a theory that two particular events at trial improperly
motivated the government to thereafter seek the New Counts. 7 Those two events, which
Defendant characterizes as an exercise of a protected right, were: 1) Defendant filing the
Misconduct Motion (DE 65), which the Court denied (DE 67); and 2) Defendant objecting to the
Court reading an Allen charge after receipt of the jury’s second note indicating that it was
deadlocked, which the Court sustained (Tr. at 21-23). These two events are the only basis upon
which the Motion asserts vindictive prosecution and seeks to dismiss the New Counts as violative
of Defendant’s due process rights.

6 The execution of the wire alleged in Count 3 was the same unit of prosecution for the sole count of wire
fraud alleged in the original indictment.

7 The Motion does not seek dismissal of Count 1 as to Carolyn Wade and Tracy Wade, Count 4 as to Tracy
Wade, or Counts 6, 7, and 10 and to Tracy Wade.
Case 0:23-cr-60173-KMW Document 145 Entered on FLSD Docket 09/04/2024 Page 7 of 18

Discussion of Applicable Law

The resolution of this Motion is governed by a body of well-established precedent from the
Supreme Court and the Eleventh Circuit. As a starting point, the general rule is that “so long as
the prosecutor has probable cause to believe that the accused committed an offense defined by
statute, the decision whether or not to prosecute, and what charge to file or bring before a grand
jury, generally rests entirely in his discretion.” Bordenkircher v. Hayes, 434 U.S. 357, 364
(1978); see also United States v. Barner, 441 F.3d 1310, 1315 (11th Cir. 2006) (“As a general rule,
as long as the prosecutor has probable cause to believe the accused as committed a crime, the
courts have no authority to interfere with a prosecutor’s decision to prosecute.”) (citing United
States v. Cole, 775 F.2d 748, 757 (11th Cir. 1985) and United States v. Spence, 719 F.2d 358, 361
(11th Cir. 1983)).
Of course, a prosecutor’s discretion is subject to constitutional restraints, and using
prosecutorial action merely to punish a person for exercising a protected statutory or constitutional
right violates due process. See United States v. Goodwin, 457 U.S. 368, 372 (1982). However,
because “the imposition of punishment is the very purpose of virtually all criminal proceedings,”
and “motives are complex and difficult to prove,” a court will not presume a vindictive
prosecutorial motive except in certain procedural and factual circumstances where “a reasonable
likelihood of vindictiveness exists.” Id. at 372-73. The line of cases discussed below
demonstrate that a “reasonable likelihood of vindictiveness,” and thus a presumption, effectively
exists only after new charges are brought following a verdict (and most commonly when more
severe charges are filed after a successful appeal). By contrast, in a pretrial posture, that is, before
a verdict is rendered (including when a mistrial is declared), the circumstances required to trigger
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a presumption of prosecutorial vindictiveness are exceedingly rare (and effectively nonexistent in
the Eleventh Circuit).
The Supreme Court first considered the constitutional implications of a prosecutor’s
pretrial decision to modify charges in Bordenkircher, 434 U.S. at 357. In that case, the prosecutor
obtained a superseding indictment, with charges carrying more severe penalties, after explicitly
warning the defendant during plea negotiations that the prosecutor would do just that if the
defendant refused to plead guilty to the original charges. The Court held that the prosecutor did
not violate the defendant’s due process rights because, unlike a defendant who faces increased
charges after exercising a legal right to appeal a conviction, the discouraging effect on the
defendant’s assertion of his trial rights was “an inevitable—and permissible—attribute of any
legitimate system which tolerates and encourages the negotiation of pleas.” Bordenkircher, 434
U.S. at 364 (internation citations omitted).
Building on Bordenkircher, the Supreme Court in Goodwin declined to adopt a
presumption of prosecutorial vindictiveness where the government obtained a felony indictment
after the defendant who, after initially expressing an interest in pleading guilty, demanded a jury
trial on the original misdemeanor charge. Again, distinguishing between a pre-verdict and post-
verdict posture, the Court explained that a defendant before trial is “expected to invoke procedural
rights that inevitably impose some burden on the prosecutor,” and the invocation of such rights “is
an integral part of the adversary process in which our criminal justice system operates.” Goodwin,
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457 U.S. at 381. Applying these principles, the Court held that it was “unrealistic” to presume a
vindictive motive when new charges follow the exercise of such a pretrial right. Id.8
In United States v. Mays, 738 F.2d 1188 (11th Cir. 1984), the Eleventh Circuit directly
addressed whether a presumption of vindictiveness applied when the government filed additional
charges in a superseding indictment after a mistrial. In holding that no such presumption applied
in those circumstances, the Eleventh Circuit, guided by Bordenkircher and Goodwin, recognized
that “in a pre-trial setting, as opposed to appellate situations . . . the Court has viewed prosecutorial
actions resulting in the enhancement of charges with less alarm.” Id. at 1189. Indeed, it observed
that “[t]he Goodwin court was reluctant to invoke a presumption of vindictiveness in the pre-trial
context, inasmuch as it might inflexibly fetter the prosecutor’s discretion.” Id. at 1190.
Applying these principles, the Mays reached the following conclusion:
The declaration of the mistrial after the first trial did not result from [defendant’s]
assertion of a protected right, but came about because the jury was simply unable
to reach a verdict. It is true that the mistrial was granted at [defendant’s] behest, but
a motion for mistrial because the jury is unable to agree cannot be said to engender
a “punitive” or “vindictive” response. The mistrial follows as a matter of course
from the jury’s inability to agree upon a verdict. It does not result from an attack
upon a conviction. [Defendant] did not pursue any right such as would instigate
retaliatory action on the part of the prosecution. Thus, the additional charges cannot
be characterized as having arisen from any exercise of a protected right. For this
reason, we do not believe there is a presumption of vindictiveness under these
circumstances.

Id. at 1190.
Since Mays, the Eleventh Circuit has in several cases reaffirmed that a presumption of
vindictiveness does not apply in pretrial circumstances. See, e.g., United States v. Kendrick, 682

8 In reaching this conclusion, the Court noted that “[a] prosecutor should remain free before trial to exercise
the broad discretion entrusted to him to determine the extent of the society interest in prosecution” and that
“an initial decision should not freeze future ones” because “the initial charges filed by a prosecutor may not
reflect the extent to which an individual is legitimately subject to prosecution.” Id. at 382.
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F.3d 974, 983 (11th Cir. 2012) (affirming that no presumption of vindictiveness applied when
government brought a new indictment against a defendant after an acquittal); United States v.
South, 77 Fed. Appx. 959, 967 (11th Cir. 2008) (affirming that no presumption of vindictiveness
applied when government brought a superseding indictment after defendant withdrew his guilty
plea); Barner, 441 F.3d at 1316 (reversing district court, under abuse of discretion standard of
review, for applying presumption of vindictiveness when government filed fifth superseding
indictment after defendant filed several pre-trial motions, including an unsuccessful to motion to
dismiss the prior indictment based on prosecutorial misconduct).
In a posttrial setting, even when the government’s decision to file more serious charges
after a defendant’s successful appeal does give rise to a presumption of vindictive prosecution, the
government may rebut this presumption with an objective explanation justifying the prosecutor’s
actions. See United States v. Jones, 601 F.3d 1247, 1260-61 (11th Cir. 2010) (affirming denial of
motion to dismiss on grounds of prosecutorial vindictiveness where government rebutted
presumption by providing objective explanation for filing new charges after appeal).
Once rebutted, a defendant’s vindictive prosecution defense will survive only if she can
affirmatively demonstrate actual prosecutorial vindictiveness. To establish actual prosecutorial
vindictiveness, the defendant has the burden of establishing, by objective evidence: 1) the
prosecutor acted with genuine animus toward the defendant; and 2) the defendant would not have
been prosecuted but for that animus. See Barner, 441 F.3d at 1322 (citing United States v. Wilson,
262 F.3d 305, 314 (4th Cir. 2001)). “In order words, [defendant] must show that the
government’s justification is pretextual.” Jones, 601 F.3d at 1261.
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Argument
1.
No presumption of prosecutorial vindictiveness applies here.
The procedural and factual circumstances of this case do not give rise to a presumption of
prosecutorial vindictiveness. As in Mays, the government here obtained the Superseding
Indictment after the declaration of a mistrial, which places this case in the same pretrial posture
where a presumption does not exist. Also, as in Mays, the mistrial here “did not result from
[Defendant’s] assertion of a protected right, but came about because the jury was simply unable to
reach a verdict.” Mays, 738 F.2d at 1190. Moreover, here, the mistrial was granted upon the
parties’ consent. See Order at DE 72. Notably, the Motion does not cite a case where the
Eleventh Circuit applied a presumption of vindictiveness in any pretrial setting, let alone a case
where, following a mistrial, the government added charges that carry substantially less severe
penalties (as it did here).9 The government is unaware of any such case.
Furthermore, just like in Mays where the Court found that the defendant “did not pursue
any right such as would instigate retaliatory actions on the part of the prosecution,” id., the two
grounds asserted in the Motion—Defendant’s filing of the Misconduct Motion and Allen charge
objection—are the type of pretrial invocation of procedural rights that the Supreme Court and the
Eleventh Circuit have consistently said do not give rise to a presumption of vindictiveness. See,

9 The two Sixth Circuit cases cited by Defendant are inapplicable. In United Staes v. LaDeau, 734 F.3d
561 (6th Cir. 2013), the Sixth Circuit found a presumption existed where the government filed a superseding
indictment after the district court granted defendant’s motion to suppress that “eviscerated” the
government’s case, and the additional charges exposed defendant to substantially harsher penalties.
Similarly, in United States v. Zakhari, 85 F.4th 367 (6th Cir. 2023), the defendant asserted presumptive
vindictiveness where the government added a new count that substantially increased his mandatory
minimum, without new evidence and after vigorous motions practice. In that case, the Sixth Circuit did
not “reach the ultimate question of vindictiveness,” but simply remanded for further development of the
record. Id. at 384.
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e.g., Goodwin, 457 at 381 (“[i]t is unrealistic to assume that a prosecutor’s probable response to
such motions is to seek to penalize and to deter.”); Barner, 441 F.3d at 1320 (“[e]ven a pre-trial
motion based on prosecutorial misconduct is not so unusual that it should engender a
presumption.”) Id. at 1320. Like in Barner, the denial of the Misconduct Motion here further
militates against a presumption because “the government had no obvious reason for vindictive
retribution.” Id.
Accordingly, under Bordenkircher, Goodwin, Mays, Barner, and the additional cases cited
herein, the Court should find that no presumption of vindictiveness applies in this case.
2.
Even if a presumption of vindictiveness applied, solely for the sake of
argument, the government rebuts it.

Although no presumption of prosecutorial vindictiveness applies to this case, the
government nevertheless voluntarily provides this Court with an objective explanation for its
decision to file the New Counts. The government does this to affirmatively establish for the
record that counsel was properly acting well within his prosecutorial discretion, and thereby rebut
any presumption of vindictiveness applied solely for the sake of argument.
First, similar to Mays, where the Eleventh Circuit deduced that “the mistrial moved the
government to reassess the manner of presenting the evidence supporting Defendant’s involvement
in the underlying transaction,” 738 F.2d at 1190, the jury’s inability in this case to unanimously
agree that the government had met its burden on the elements of wire fraud caused the government
to consider an alternative charge that did not require the same measure of proof. Specifically,
after the mistrial, the government sought an alternative charge that did not require the government
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to prove that Defendant acted with intent to defraud.10 The offense of making a false statement
to the SBA, and conspiring to do the same, both of which carry maximum penalties that are far
less than wire fraud, were appropriate charges to accomplish that legitimate goal. Furthermore,
the government did not consider these offenses as additional charges in the original indictment
because, had the government proved the elements of wire fraud beyond a reasonable doubt (as it
fully expected to do), an additional conviction of making false statements to the SBA (or
conspiring to do the same) would not have affected the calculation of the offense level under the
Sentencing Guidelines.
Second, with respect to the conspiracy alleged in Count 4, the government had not
developed sufficient evidence to support this charge when the original indictment was returned in
September 2023. The government first interviewed Granados in June 2024 (weeks after the
mistrial was declared). It was not until that interview, and additional investigative steps that
followed, that the government formed the view that it has sufficient evidence to prove a conspiracy
and that the charge was appropriate.11
In Goodwin, the Supreme Court explained why “[t]here is good reason to be cautious
before adopting an inflexible presumption of prosecutorial vindictiveness in a pretrial setting.” 457
U.S. at 381. One of its articulated reasons was that “[a]t this stage of the proceedings, the
prosecutor’s assessment of the proper extent of prosecution may not have crystalized.” Id. That

10 The government observed that, in the June 2024 trial of another former BSO Deputy Sheriff, Judge Scola
instructed the jury that the elements of this charge were: 1) defendant knowingly made any false statement;
and 2) the false statement was for the purpose of obtaining for herself or for any applicant any loan or for
the purpose of influencing in any way the action of the SBA. United States v. Alexandra Acosta, 23-cr-
60170-RNS, at DE 68 at 12.

11 For the same reason, the government could not have sought Count 1 (conspiracy to commit wire fraud)
when the original indictment was returned. That said, the Motion does not seek dismissal of Count 1.
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is exactly what happened here with respect to the New Counts. The government’s objective
explanation for filing the New Counts not only rebuts any presumption of vindictiveness applied
for the sake of argument, it also underscores why, in these pretrial circumstances, the court should
not presume the government had a vindictive motive in the first place.
3.
Defendant has not established actual vindictiveness.
Because the government has provided an objective explanation for the New Counts, “it is
incumbent on [Defendant] to demonstrative actual vindictiveness” for this Motion to survive.
Jones, 601 F.3d at 1261. Defendant has not done so. As courts have observed, establishing
actual vindictiveness is “exceedingly difficult” because it requires the defendant to prove animus
and causation, that is: “(1) the prosecutor wanted to punish the defendant for exercising [her] rights
(animus); and (2) the prosecutor’s animus caused the prosecutor to bring charges of increased
severity (causation).” United States v. Myrie, No. 809-CR-572-T-30TGW, 2011 WL 250550, at
*3 (M.D. Fla. Jan. 26, 2011). Although it is unclear from the Motion that Defendant is even
attempting to assert a claim of actual vindictiveness, for the avoidance of doubt, there is nothing
raised in the Motion that could be interpreted as establishing the elements of actual
vindictiveness.12
As to the first element, Defendant has not established animus. The Motion simply leaps
to the conclusion that the “filing of additional charges against Ms. Wade after the filing of the
motion to dismiss is objective evidence that AUSA Snider acted to punish Ms. Wade for exercising
a legal right” (Mot. at 10). This is conjecture, which is seemingly deduced from Defendant’s
assertion that “AUSA Snider at some [sic] approached every member of the Ms. Wade’s defense

12 In the Motion, Defendant asks the Court to find that the filing of the New Counts is “presumptively
vindictive” (Mot. at 11). The Motion does not expressly ask the Court to find actual vindictiveness.
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team to express his displeasure about the motion being filed” and “expressly asked the undersigned
attorney [Mr. McCray] to withdraw the motion” (Mot. at 10). This does not show animus, it
shows a prosecutor who, while understandably caught off-guard by the allegations filed without
notice at midnight after three days of trial, tried in good faith at the next available opportunity
(which was in the courtroom the following morning) to clear up defense counsel’s apparent factual
and legal misunderstanding of the issue raised in the Misconduct Motion.13 The Court’s denial
of the Misconduct Motion further invalidates the notion that the prosecutor harbored animus
toward Defendant. See Barner, 441 F.3d at 1320 (noting that the denial of defendant’s motion
for prosecutorial misconduct provided “no obvious reason for vindictive retribution.”)
Defendant also summarily concludes that the prosecutor harbored animus toward
Defendant because she objected “a third time” to the Court reading its Allen charge (Mot. at 10).
Defendant is mistaken on both the facts and the law. Factually, the record shows that, after receipt
of the second note that the jury was deadlocked (DE 71 at 3), the Court considered recent caselaw
and decided that it was not going to give any Allen charge (Tr. 14-23). Instead, the Court proposed
directing the jury to take one last opportunity to see if they could reach a verdict. Defendant did
not object to this proposal. This was the only point during the trial where the government asked
for an Allen charge, which is standard practice in the Eleventh Circuit. When the Court received
the jury’s third and final note indicating they were deadlocked (DE 71 at 2), the government did

13 Counsel did not confer with the government prior to filing the Misconduct Motion, as required by Local
Rule 88.9. Furthermore, the Misconduct Motion and a supplemental pleading were filed during the
overnight hours, at 11:51 p.m. and 2:20 a.m., respectively, preceding the fourth day of trial. The
government did not even see the Misconduct Motion until the next morning, thus providing no time for the
government to discuss the matter with defense counsel, let alone file a written response with the Court.

Case 0:23-cr-60173-KMW Document 145 Entered on FLSD Docket 09/04/2024 Page 16 of 18

not again ask for an Allen charge and consented to the declaration of a mistrial (Tr. at 23-24).
Nothing in the record of these proceedings offers any objective evidence of animus.14
Having failed to establish animus, Defendant likewise fails to show causation. Defendant
again assumes that the Misconduct Motion and Allen charge objection caused the government to
bring the New Counts, but offers no objective evidence to support that claim. Moreover, as
explained above, the government brought the New Counts, which are less severe than the original
charge, because the elements thereof require less demanding proof and, with respect to Count 4
(conspiracy) are supported by newly developed evidence (that is, Granados’ cooperation, which
did not occur until after the mistrial). There is not a scintilla of evidence in the record that the
government’s justification is pretextual. See Jones, 601 F.3d at 1261. At bottom, the New
Counts did not result from actual vindictiveness.

14 The government’s course of conduct after the mistrial affirmatively demonstrates the absence of any
animus toward Defendant. Just three after the mistrial, the government made the May 24 plea offer that
proposed Defendant pleading guilty to the same charge later filed in the Superseding Indictment (making a
false statement to the SBA), which carried a far less severe maximum penalty. That plea offer also
proposed the government make a sentencing recommendation of time served, no probation, no fine, and no
forfeiture. The government’s transparent and good-faith effort to resolve this case without the need for a
new trial or new charges belies any notion of animus.
Case 0:23-cr-60173-KMW Document 145 Entered on FLSD Docket 09/04/2024 Page 17 of 18

Conclusion

In sum, the Motions wholly fails because: 1) there is no presumption of vindictiveness in
this case; 2) even assuming there was such a presumption, the government has rebutted it; and 3)
Defendant has not established actual vindictiveness. Accordingly, the United States respectfully
asks the Court to deny the Motion (DE 130) in its entirety.
Respectfully submitted,

MARKENZY LAPOINTE

UNITED STATES ATTORNEY

By: /s/ David A. Snider

David A. Snider
Assistant United States Attorney
Court ID No. A5502260
500 E. Broward Blvd
Fort Lauderdale, FL 33394
Tel: (954) 660-5696
Fax: (954) 356-7336
Email: david.snider@usdoj.gov
Case 0:23-cr-60173-KMW Document 145 Entered on FLSD Docket 09/04/2024 Page 18 of 18

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