Judgment — United States v. Tracy and Carolyn Wade (Dkt. 247, S.D. Fla. No. 0:23-cr-60173)

Record facts

U.S. District Court for the Southern District of Florida · No. 0:23-cr-60173-KMW · Doc. 247 · 2025-04-09 · Docket on CourtListener

Full text

UNITED STATES DISTRICT COURT, 
SOUTHERN DISTRICT OF FLORIDA 
 
 
UNITED STATES OF AMERICA,  
 
 
 
 
Plaintiff, 
 
 
 
 
 
v. 
 
 
 
 
 
 
 
 
TRACY D. WADE, 
 
 
 
CASE NO. 23-CR-60173 (2) 
 
 
Defendant.  
________________________________________________/ 
 
MOTION TO STAY JAIL SENTENCE PENDING APPEAL AND NOTICE 
THAT DEFENDANT HAS NOT BEEN DESIGNATED TO A PRISON. 
 
 
Tracy Wade was convicted at trial of conspiracy, wire fraud, and false 
statements counts related to a Paycheck Protection Program (PPP) loan 
disbursed to him post-Covid.  The loan was for $20,833 and there was no 
dispute that another person, Haydee Rivero, created false documents in a 
successful effort to have the funds disbursed when Mr. Wade would not 
have qualified for the loan with accurate documents.  Ms. Rivero “assisted” 
many Broward Sheriff’s Office deputies in submitting such loans, resulting 
in media coverage and multiple criminal cases.  The government alleged 
that Mr. Wade himself electronically signed the false loan paperwork, 
ultimately receiving $20,833 in government funds which he was not entitled 
to.  They also alleged he was involved in his wife and co-defendant Carolyn 
Wade’s PPP application, which also resulted in the disbursement of 
$20,833, for a total loss of $41,666.  Ms. Rivero received a probationary 
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sentence without jail time for her role in orchestrating this fraud involving 
the Wades and multiple other people, some charged and some not. (SDFL 
case 23-cr-60124). 
At sentencing, the Government requested a sentence of 14 months in 
prison and the defense requested a probationary sentence.  The Court 
sentenced Mr. Wade to 90 days in jail followed by three years of probation, 
and ordered him to surrender to begin serving the jail sentence on Monday, 
April 14, 2025.  Although Mr. Wade is very grateful to the Court for 
exercising its judgment and not following the Government’s far harsher 
sentencing recommendation, he respectfully moves for a stay of the jail 
portion of the sentence until the conclusion of his appeal, which has 
already been initiated. 
Mr. Wade was a Broward Sheriff’s Office deputy, working in BSO’s 
detention facilities.  He is 52 years old and has no criminal history 
whatsoever.  He and his wife Carolyn have an 11-year old daughter who 
lives with them.  He also has two adult children from a previous marriage.  
Mr. Wade is from and grew up in Miami, graduating from Carol City High 
School and Miami Dade College with an associate’s degree.  He is also a 
veteran of the US Marine Corps.  Mr. Wade served the community as a 
Broward Sheriff’s Deputy, working in BSO’s detention facilities from 1997-
2022 (25 years).  He also owns and operates a local small business, Wade 
Funeral Home in Hallandale Beach, and has since 2011. 
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During the pendency of this case (since July 1, 2024), Mr. Wade was 
out on bond/pretrial release and fully complied with the terms and 
conditions. 
The defense has filed a Notice of Appeal (D.E. 245).  The Eleventh 
Circuit has opened the appellate case, 25-11132.  The defense has 
submitted their transcript order form and will prosecute the appeal diligently 
once the transcripts of the trial and pretrial hearings have been prepared.     
18 U.S.C. § 3143(b) provides that defendants pending appeal shall 
be detained unless the Court finds “by clear and convincing evidence that 
the person is not likely to flee or pose a danger to the safety of any person 
or the community if released” and “that the appeal is not for the purpose of 
delay and raises a substantial question of law or fact likely to result in” 
reversal, a new trial, or a reduced sentence.  “If the judicial officer makes 
such findings, such judicial officer shall order the release of the person” 
pending the resolution of the appeal. 
Mr. Wade respectfully submits that he meets both criteria and thus 
requests that this Court stay his jail sentence and surrender until after the 
resolution of his pending appeal.  The appeal will not be resolved in 90 
days, so regardless of the outcome of the appeal if the jail sentence is not 
stayed Mr. Wade will have to serve it in its entirety.  If the jail sentence is 
stayed, whether or not Mr. Wade will have to serve it will depend on 
whether or not his conviction is affirmed on appeal—which the defense 
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submits is as it should be and is the only way to avoid the potential 
outcome of him spending three months in jail, separated from his family 
and livelihood, based on a criminal conviction that is subsequently 
reversed.  The harm to Mr. Wade of serving the jail sentence will not be 
able to be ameliorated after the fact.  There is no comparable harm to the 
Government that would be avoided by not staying the jail sentence—Mr. 
Wade does not seek to vacate the jail sentence, only to postpone it until 
there is an appellate resolution.  If his case is affirmed on appeal, he will 
have to serve the sentence.  Because Mr. Wade is clearly not a flight risk or 
danger, and because he has valid appellate issues, this Court should stay 
the jail sentence. 
 
Flight Risk/Danger 
 It is evident that Mr. Wade poses no flight risk or danger to the 
community.  He lives in South Florida and always has.  He served this 
community as a law enforcement officer.  He has no prior convictions 
whatsoever.  He has a wife and three children here.  He has a funeral 
home business here.  He was out on bond/pretrial release pending trial with 
no issues.  The Court already gave him a surrender date, which it surely 
would not have done if it had any concern that Mr. Wade was a flight risk or 
danger to the community.  The victim in this financial crimes case is the US 
Government, and their loss was repaid in full, before sentencing.  There is 
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no realistic possibility that Mr. Wade would engage in financial, or any other 
crimes, in the 90 days he would be in jail.  There is also no realistic 
possibility he would flee and give up his family and home and everything he 
has in his life to avoid a 90-day jail sentence—and if he was going to, he 
would have already done so as he has been living in the community both 
before and after the sentence was pronounced.  He has also surrendered 
his passport per Court order, and thus does not have the ability to leave the 
country.  The flight/risk danger factor clearly favors Mr. Wade. 
 
Appeal Not For Purposes of Delay. 
The appeal which has been filed is not for purposes of delay.  There 
would be nothing to delay, the appeal was filed while the jail sentence had 
already been pronounced and surrender date of Monday was pending.  
Furthermore, Mr. Wade’s wife and co-defendant, Carolyn Wade, who was 
not sentenced to jail time, is also appealing.  Mr. Wade has a Constitutional 
right to appeal and he is exercising that right.  He hired undersigned 
appellate counsel before the sentence was even pronounced, and 
undersigned counsel was present at the sentencing, demonstrating this 
appeal was not filed with the purpose of delaying the jail sentence, since 
the decision to appeal was made before sentence was pronounced.  
Whether or not this motion is granted, the appeal will proceed.   
 
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Substantial Question of Law or Fact. 
Undersigned counsel is at somewhat of a disadvantage as to this 
factor since he was not trial counsel and the transcripts of the trial have yet 
to be prepared.  There may be legal issues with the conduct of the trial 
which will be identified once undersigned counsel has reviewed the 
transcripts, exhibits, and other records related to this case.  
However, one thing that will clearly be argued on appeal is that Mr. 
Wade did not have the necessary mens rea to support a conviction and 
sentence.  There is no dispute that a third party, Haydee Rivero, prepared 
the loan documentation in this case and that Ms. Rivero held herself out as 
an expert in this field.  Multiple law enforcement officers used her services, 
suggesting those services they were not obviously or apparently fraudulent.  
At the time these PPP applications were submitted many people all over 
the country were trying to navigate a completely new federal government 
program in the midst of a pandemic that was at the time of uncertain 
severity and duration.  The entire point of the PPP program was to disburse 
money into American’s hands quickly to avoid national economic collapse.   
Mistakes are not fraud, and reasonably relying on purported experts 
is not fraud.  Although the Government contended that Mr. Wade knowingly 
signed false documents, which is fraud, it is undersigned counsel’s 
understanding that they did not have direct evidence of this and that there 
was countervailing evidence that Haydee Rivero, who orchestrated the 
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fraud, had Mr. Wade’s login information and used it to access his account 
and upload and sign documents as him.  Even if some of the logins were 
linked to Mr. Wade himself based on IP addresses, that does not prove that 
he read or understood everything that the purported expert had prepared 
on his behalf.  This is not a case where the defendant himself created the 
fraudulent documents or application.  The government had the burden to 
prove beyond a reasonable doubt that Mr. Wade was not himself defrauded 
by Ms. Rivero (in order to earn her $1,000 fee for submitting each 
application, which became quite lucrative for her because she did this for 
multiple people).  Two defense witnesses testified that they were defrauded 
by Ms. Rivero relative to their PPP applications and did not know she had 
submitted fraudulent information on their behalf.  Mr. Wade also testified to 
the same thing on his own behalf.  At a minimum, this could be sufficient to 
overturn the conspiracy counts.  See United States v. Wheeler, 16 F.4th 
805, 822 (11th Cir. 2021) (“to prove that a defendant was part of a 
conspiracy, there must be some evidence that the defendant knew the 
objective of the conspiracy charged in the indictment and decided to join 
it.”).  See also United States v. Chandler, 388 F.3d 796 (11th Cir. 2004) 
(reversing fraud conviction where government did not prove defendant 
knowingly participated in the fraud). 
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Based on the information currently available to it, the defense has a 
good faith belief that there is a valid argument regarding the lack of proof of 
mens rea as to the counts of conviction. 
Again, there may be other appellate issues raised and undersigned 
counsel cannot responsibly identify all issues until he has received and 
read the transcripts and records.  The purpose of 18 U.S.C. § 3143(b)(1)(B) 
is to avoid delaying incarcerative sentences for defendants who file 
frivolous appeals.  There is no reason to believe that this appeal, of a 
lengthy trial that had to be tried twice because the first time (when only 
Carolyn, the defendant’s wife, was charged) the jury hung, is frivolous.  And 
again, if the appeal is unsuccessful, Mr. Wade will still have to serve the jail 
sentence.   
 
Equitable Issues. 
Mr. Wade has of course never been to jail (other than working in one 
as a detention deputy for 25 years).  He has served his community both in 
the military and in law enforcement.  He also supports his family with his 
income from his business, Wade Funeral Home.  His wife Carolyn is 
marginally employed in part-time waitress work.  She submitted an 
application to be declared indigent for purposes of appeal, which was 
denied on the grounds that Mr. Wade could pay for the costs of appeal, 
primarily the lengthy trial transcripts, which could then be used for both co-
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defendant’s appeals. (D.E. 243).  Undersigned counsel has already 
received estimates for some of the transcripts and it appears they will cost 
at least $10,000.  Given that the Court relied on Mr. Wade’s income in 
denying Ms. Wade’s indigency motion, it would be equitable to delay the jail 
sentence to allow him to continue to earn that income and pay for the 
appellate costs. 
 
Notice that Defendant Has Not Been Designated to a Prison/Jail. 
When the Court set the surrender date in open court for this coming 
Monday, April 14, 2025, it said that Mr. Wade should surrender to his 
designated facility.  It also said that if the facility had not been designated in 
time, he should bring that to the Court’s attention prior to the surrender 
date.  As of the filing of this motion, he has not been designated and thus 
does not know where to surrender.  He therefore notifies the Court as to 
the above and requests that the Court at a minimum delay the surrender 
until he is designated to a facility. 
 
Government’s Position. 
Undersigned counsel has spoken with Assistant United States 
Attorney David Snider, who states that the government objects to this 
motion. 
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I HEREBY CERTIFY that a true and correct copy of the foregoing 
was served on all counsel of record in this cause, this 9th day of April, 
2025, via CM/ECF. 
 
 
Respectfully submitted, 
 
 
___/s/ Daniel Tibbitt_______ 
 
 
 
 
 
 
Daniel Tibbitt, Esq. 
 
 
 
 
 
 
Daniel J. Tibbitt, P.A. 
 
 
 
 
 
 
1175 NE 125th Street 
 
 
 
 
 
 
Suite 404 
 
 
 
 
 
 
North Miami, Fl. 33161 
 
 
 
 
 
 
(305) 384-6160 
 
 
 
 
 
 
Fl. Bar No.: 816361 
 
 
 
 
 
 
dan@tibbittlaw.com 
 
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