Court filing
Indictment — United States v. Tracy and Carolyn Wade (Dkt. 251, S.D. Fla. No. 0:23-cr-60173)
Filed April 12, 2025 in United States v. Tracy and Carolyn Wade; one of 30 filings from this case.
Record facts
| Court | U.S. District Court for the Southern District of Florida |
|---|---|
| Filed | 2025-04-12 |
U.S. District Court for the Southern District of Florida · No. 0:23-cr-60173-KMW · Doc. 251 · 2025-04-12 · Docket on CourtListener
Full text
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 23-60173-CR-WILLIAMS/GRAHAM
UNITED STATES OF AMERICA
vs.
TRACY D. WADE,
Defendant.
/
UNITED STATES’ RESPONSE IN OPPOSITION TO
DEFENDANT’S MOTION TO STAY JAIL SENTENCE PENDING APPEAL (DE 247)
Introduction
The United States of America, by and through its undersigned counsel, hereby responds in
opposition to the “Motion to Stay Jail Sentence Pending Appeal and Notice that Defendant Has
Not Been Designated to a Prison,” filed on behalf of Defendant Tracy D. Wade (“Defendant”) on
April 9, 2025, at docket entry (“DE”) 247 (the “Motion” or “Mot.”). As explained herein, the
Bail Reform Act, 18 U.S.C. § 3143, requires Defendant to serve his sentence of imprisonment
pending appeal of his conviction because, at a minimum, Defendant’s appeal does not raise a
substantial question of law or fact that is likely to result in reversal, a new trial, or a reduced
sentence. Accordingly, the United States respectfully asks the Court to: 1) deny the Motion; and
2) upon the conclusion of the hearing on the Motion, remand Defendant to the custody of the
United States Marshal to begin serving his sentence consistent with the Judgment (DE 242).1
1 The Court specially set a hearing on the Motion for 1:00 p.m. on Monday, April 14, 2025 (DE 250). The
Judgment directs Defendant to surrender for service of his sentence by 2:00 p.m. on Monday, April 14,
2025 (DE 242 at 7).
Case 0:23-cr-60173-KMW Document 251 Entered on FLSD Docket 04/12/2025 Page 1 of 5
2
Pertinent Background
On October 23, 2024, following a 9-day trial, a jury returned a verdict finding Defendant
guilty of all counts with which he was charged in the Superseding Indictment (DE 188), that is,
one count of conspiracy to commit wire fraud (18 U.S.C. § 1349), two counts of wire fraud (18
U.S.C. § 1343), one count of conspiracy to make false statements to the SBA (18 U.S.C. § 371),
and three counts of making false statements to the SBA (15 U.S.C. § 645(a)).2
On March 12, 2025, the Court sentenced Defendant to a total term of imprisonment of 90
days, consisting of 90 days as to each of Counts 1, 2, 3, 4, 6, 7, and 10 to run concurrently with
each other. Judgement was entered on March 20, 2025 (DE 242). In the Judgment, the Court
further ordered Defendant to surrender for service of sentence at the institution designated by the
Bureau of Prisons before 2:00 p.m. on April 14, 2025.3
Defendant filed a Notice of Appeal on April 4, 2025 (DE 245). On April 9, Defendant
filed the Motion seeking to stay his 90-day term of imprisonment until the conclusion of his appeal
(DE 247 at 2). The Motion fails under the relevant statute and Eleventh Circuit precedent
discussed below.
Relevant Law
As it pertains to the Motion, Section 3143(b)(1)(B) of Title 18 (the Bail Reform Act of
1984) provides as follows:
the judicial officer shall order that a person who has been found guilty of an
offense and sentenced to a term of imprisonment, and who has filed an appeal or a
petition for a writ of certiorari, be detained, unless the judicial officer finds—
2 Defendant’s co-defendant, Carolyn Wade, was also found guilty of these offenses.
3 At the sentencing hearing, the Court asked defense counsel to advise the Court if Defendant had not been
so designated by the surrender date. The Motion provides such notice.
Case 0:23-cr-60173-KMW Document 251 Entered on FLSD Docket 04/12/2025 Page 2 of 5
3
that the appeal is not for the purpose of delay and raises a substantial question of
law or fact likely to result in—
(i)
reversal,
(ii)
an order for a new trial,
(iii)
a sentence that does not include a term of imprisonment, or
(iv)
a reduced sentence to a term of imprisonment less than the total of the time
already served plus the expected duration of the appeal process.
18 U.S.C. § 3143(b)(1)(B) (emphasis added).
In United States v. Giancola, 754 F.2d 898 (11th Cir. 1985), the Eleventh Circuit explained
that Congress intended for the 1984 Bail Reform Act to “limit” the “availability” of bail pending
appeal. Id. at 900. Congress accomplished this by, among other things, “chang[ing] the
presumption so that the conviction is presumed correct and the burden is on the convicted
defendant to overcome that presumption.” Id. at 900-901. In that vein, the Eleventh Circuit
defined a “substantial question” as “one of more substance than would be necessary to a finding
that it was not frivolous. It is a ‘close’ question or one that very well could be decided the other
way.” Id. at 901. A defendant’s failure to meet his burden with respect to the “substantial
question” is fatal to his request for bail pending appeal. United States v. Smith, No. 23-CR-20122-
Bloom, 2024 WL 4441809, at *3 (S.D. Fla. Oct. 8, 2024)
Argument
The Bail Reform Act Requires Defendant to Serve his Sentence Pending Appeal
Defendant must serve his sentence of imprisonment pending appeal because Defendant’s
appeal does not raise a substantial question of law or fact, much less a substantial question of law
or fact likely to result in reversal, a new trial, or a reduced sentence. Indeed, on this decisive
point, the Motion merely suggests that “[t]here may be legal issues with the conduct of the trial
which will be identified once undersigned counsel has reviewed the transcripts, exhibits, and other
Case 0:23-cr-60173-KMW Document 251 Entered on FLSD Docket 04/12/2025 Page 3 of 5
4
records related to this case.” Mot. at 6. That is woefully insufficient. See, e.g., Smith, 2024 WL
4441809, at *3 (denying defendant’s motion for bail pending appeal where defendant “has only
stated a general intention to raise pre-trial and trial issues that may involve constitutional
questions.”).
Defendant also asserts, as a basis for a stay, that he intends to raise on appeal the sufficiency
of the evidence regarding his intent for each offense of conviction. This issue is commonly raised
on direct appeals and is not a “substantial question” in this case. Rather, the issue of whether the
evidence was sufficient to support Defendant’s intent as to each count of conviction was litigated
in Defendant’s oral motion (before the verdict) and written motion (after the verdict) for judgment
of acquittal pursuant to Rule 29 (DEs 204 and 207). In its Order denying Defendant’s written
Rule 29 motion, the Court concluded that “the evidence sufficiently established that Defendants
knowingly participated in a scheme to fraudulently obtain PPP loans and acted with intent to
defraud.” DE 213 at 9. Although Defendant has the right challenge the sufficiency of the
evidence on direct appeal, it is not a “close question or one that very well could be decided the
other way”—especially since the same legal standard applied by the Court to adjudicate (and deny)
the Rule 29 motions will govern on appeal.4 See, e.g., United States v. Munshani, No. 22-CR-
215 (JSR), 2023 WL 5390201, at *2 (S.D.N.Y. Aug. 21, 2023) (denying bail pending appeal where
defendant raised sufficiency of the evidence as substantial question for appeal). Just like in that
4 As with the Rule 29 motions decided by this Court in the government’s favor before and after the verdict,
on appeal, the Eleventh Circuit will consider the evidence in the light most favorable to the government,
drawing all reasonable inferences and credibility choices in the government's favor. If a reasonable jury
could conclude that the evidence establishes guilt beyond a reasonable doubt, as this Court did, the Eleventh
Circuit will affirm the verdict. United States v. Browne, 505 F.3d 1229, 1253 (11th Cir. 2007).
Case 0:23-cr-60173-KMW Document 251 Entered on FLSD Docket 04/12/2025 Page 4 of 5
5
case, the nature and amount of evidence in the record against Defendant renders this not a close
question on appeal.
Finally, to the extent that Defendant is appealing the reasonableness of the sentence
imposed, it is unlikely that any decision on appeal will result in a more favorable sentence given
that the term of imprisonment (90 days) was substantially below the Guidelines sentencing range
of 8-14 months determined by the Court.
Because Defendant has failed to meet his burden of establishing that his appeal raises a
substantial question of law or fact likely to result in reversal, a new trial, or a more favorable
sentence, it unnecessary to address any of the other arguments raised in the Motion.
Conclusion
For the foregoing reasons, Defendant must serve his sentence of imprisonment pending
appeal. Accordingly, the United States respectfully asks the Court to deny the Motion and, upon
conclusion of the hearing on the Motion, remand Defendant to the custody of the United States
Marshal to begin serving his sentence by 2:00 p.m. on April 14, 2025 consistent with the Judgment.
Respectfully submitted,
HAYDEN P. O’BYRNE
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 251 Entered on FLSD Docket 04/12/2025 Page 5 of 5File and source
- File
- gov.uscourts.flsd.654266.251.0.pdf
- Size
- 167,667 bytes
- SHA-256
- 5c45e3c145e0fc1ff54869a0e0a6be348fb2cf82ce1c8e353239c835930d9610
- Original
- PACER (login required)