Court filing
Information — United States v. Tracy D. Wade (Dkt. 130, S.D. Fla. No. 0:23-cr-60173)
Filed August 21, 2024 in United States v. Tracy D. Wade; one of 133 filings from this case.
Record facts
| Court | U.S. District Court for the Southern District of Florida |
|---|---|
| Filed | 2024-08-21 |
U.S. District Court for the Southern District of Florida · No. 0:23-cr-60173-KMW · Doc. 130 · 2024-08-21 · Docket on CourtListener
Full text
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
UNITED STATES OF AMERICA, Case No.23-cr-60173-KMW (Graham)
Plaintiff,
v.
CAROLYN D. WADE and,
TRACY WADE,
Defendant.
__________________________/
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
COMES NOW the Defendant, CAROLYN D. WADE (hereinafter Mrs.
Wade”), through undersigned counsel, pursuant to the Fifth Amendment of the
Due Process Clause of the Fifth Amendment of the United States Constitution,
and hereby move this Honorable Court to Dismiss Counts 4, 5, 8 and 9 of the
Superseding Indictment because the government’s decision to file those charges
was motivated by vindictiveness. In support thereof, Ms. Wade states:
Procedural and Factual Background
On September 14, 2023, Ms. Wade was indicted in the Southern District of
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Florida one count of wire fraud, in violation of 18 U.S.C. Sec. 1343 (1). (DE# 3). In
summary fashion the indictment alleged that Ms. Wade had caused the
submission of a materially false and fraudulent application for a Paycheck
Protection Program (PPP) loan from the Small Business Association (SBA), and
that on June 7, 2021, Ms. Wade use the wires submit the fraudulent PPP loan
application.
Ms. Wade was one of seventeen Broward Sheriff Deputies accused of
falsifying paperwork to obtain PPP loans or Economic Disaster Loans (EIDL). See
17 Broward deputies charged in pandemic loan fraud, South Florida
SunSentinel, updated October 12, 2023, https://www.sun-
sentinel.com/2023/10/12/multiple-broward-sheriffs-employees-facing-
indictments-over-pandemic-relief-fund-misuse/3, Like Ms. Wade, almost all of
the other BSO deputies were only charged with wire fraud counts that reflected
the number of loans they received.1 Ms. Wade’s jury trial commenced on May 13,
2024. (DE 62).
1 Alexandra Acosta, 23-60170-Cr-Scola Initially charged one count of wire fraud, superseding indictment added
defendant Vilsaint St. Louis, a conspiracy count and false statement to SBA count
George Anthony, III 23-80168-Cr-Cannon, two counts of wire fraud
Katrina Brown, 23-60169-Cr-Altman, three counts of wire fraud
Rorie Brown, 23-60174-Cr-Williams, two counts of wire fraud
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During the trial, the defense filed a motion to dismiss the indictment due
to prosecutorial misconduct. (DE 65). Specifically, the defense alleged that the
Government, through Assistant United States Attorney David Snider, improperly
interfered with two material defense witnesses. The defense intended to call
Haydee Granados and, her husband, Eduardo Rivera, to testify as defense
witnesses. The defense theory at trial was that Haydee Granados prepared Ms.
Wade’s PPP loan application and included false information without Ms. Wade’s
knowledge.
Keshondra Davis, 23-60184-Cr-Altman, one count of wire fraud
Allen Dorvil, 23-60185-Cr-Moore one count of wire fraud
Ritchie Dubuisson-23-60183-Cr-Martinez one count of wire fraud
Keith Dunkley -23-60197-Cr-Dunkley one count of wire fraud
Alexis Greene 23-60182-Cr-Dimitrouleas two counts of wire fraud
Keshondra Davis 23-60172-Cr-Martinez two counts of wire fraud
La'Keitha Lawhorn, 23-60171-Cr-Bloom - three counts of wire fraud
Ancy Morancy, 23-60191-Cr-Bloom -- one count of wire fraud
Derrick Nesbitt, 23-60193-Cr-Bloom -- one count wire fraud
Jean Pierre-Toussant, 23-60189-Cr-Moore -- one count of wire fraud
Marcus Powell, 23-60192-Cr-Gayle -- one count of wire fraud
Stephanie Smith, 23-60203-Cr-Bloom (Cohn) -two counts of wire fraud
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Prior to the trial, both Ms. Granados and Mr. Rivera, through their lawyer,
indicated that they would testify at the trial. However, the day before Ms.
Granados and Mr. Rivera were scheduled to testify, AUSA Snider advised their
lawyer they could be charged with assisting Ms. Wade to commit PPP fraud if
they testified at the trial.
The Court conducted a hearing evidentiary hearing on the motion to
dismiss the indictment. (DE 67). The attorney for Haydee Granados and Edward
Rivero testified at the hearing. The Court denied the motion to dismiss for
prosecutorial misconduct. (DE 67).
Notably, after the defense filed the motion to dismiss, but before the
evidentiary hearing, Mr. Snider approached the undersigned three times
requesting him to withdraw the motion to dismiss for government misconduct.
Undersigned counsel explained that he would and could not because he
believed that there was a factual basis for the motion and that his client was
extremely bothered that he had "threatened the prosecutor and put fear in
them to prevent them from testifying " for the defense. Undersigned explained
that he believed the facts and circumstances, as well as the case law, supported
the motion.
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Additionally, AUSA Snider approached the defense’s legal assistant,
Hendrith Smith, in an effort to persuade the defense to withdraw the motion to
dismiss. While obviously upset, Mr. Snider stated, that he does not take too
lightly ethical attacks against him because he values his ethical responsibilities
and reputation.
After the Court denied the motion to dismiss, Mr. Snider, still upset, spoke
with Ms. Wade’s co-counsel, Mr. Wilcox, and indicated that he was not happy
about the defense’s motion to dismiss questioning him ethically, as he values
him ethical duties. He further indicated the defense should not have filed the
motion. In response, Mr. Wilcox stated to Mr. Snider that there was a good faith
basis for filing the motion and that the defense team was merely discharging its
duty to effectively and zealously represent Ms. Wade.
At the conclusion of all the evidence, closing arguments and the Court’s
instructions, the jury began their deliberations. (DE 68). The deliberations
began in the afternoon of May 20, 2024 and continued on May 21, 2024. During
the deliberations, the jury advised the Court on three separate occasions that it
was deadlocked. (DE 68) The first two times the Court read the jury the Allen
Charge. See 11th Circuit Pattern Jury Instructions Criminal Case, T5. The third
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time the jury advised the Court that it was deadlocked, the Court, over the
government’s objection, declined to read the Allen charge and declared a
mistrial. (DE 68).
After the Court declared the mistrial, undersigned counsel proposed
resolving the case by having Ms. Wade return the PPP loan money in exchange
for a dismissal. AUSA Snider rejected the proposal and indicated that the
government would not drop the case but would refile it unless Ms. Wade
pleaded guilty to the original charge and repaid the money. AUSA Snider further
indicated that if the government refiled the case, it would charge Ms. Wade with
making a false statement to the SBA for each page that she DocuSigned, (SBA)
would likely add a defendant or defendants.
On June 27, 2023, the government filed a superseding indictment and
just as AUSA Snider threatened, the government charged Ms. Wade with
additional charges and added her husband, Tracy Wade as a defendant. Count
1 of the superseding indictment charges Ms. Wade and Tracy Wade with
conspiring to commit wire fraud with Haydee Rivero f/k/a Haydee Granados,2 in
2 Haydee Rivero f/k/a Haydee Granados is charged separately in an information with one count of conspiracy to
defraud the United States in violation of 18 U.S.C. § 371, United States v. Haydee Rivero f/k/a Haydee Grenado,
case no. 21-60124-Cr-Smith. Undoubtedly, this single charge by way of information is a result of her cooperating as
a witness for the government against the Wades.
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violation of 18 U.S.C. § 1349. Count 2 charges Tracy Wade singularly with a
substantive count of wire fraud, in violation of 1343. This count involves a PPP
loan that Mr. Wade obtained from the SBA. Count 3 charges Ms. Wade and Tracy
Wade with a substantive count of wire fraud, in violation of 1343. This count is
essentially the same as the single count of wire fraud that Ms. Wade was
charged with in the original indictment.
Count 4 of the superseding indictment charges Ms. Wade and Tracy Wade
with conspiring with Haydee Granados to make a false statement to the SBA, in
violation of 18 U.S.C. § 371. Count 5 of the indictment charged Carolyn Wade
with making a false statement against the SBA, in violation of 15 U.S.C. § 645(a).
The alleged false statement(s) alleged in Count 5 appears to be related to the
wire fraud count alleged in the original indictment and count 3 of the
superseding indictment.
Counts 6 and 7 of the superseding indictment charges Tracy Wade with
separate counts of making false statements to SBA, in violation of 645(a). These
counts appear to be related to the loan that is referenced in Count 2 of the
superseding indictment.
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Count 8 and 9 charges Ms. Wade with separate counts of making false
statements to the SBA, in violation of 15 U.S.C. § 645(a). Again, the false
statements in these counts appear to be related to the wire fraud count alleged
in the original indictment and count 3 of the superseding indictment. Count 10
of the indictment charges Tracy Wade with another count of making a false
statement to the SBA. The false statement alleged in Count 10 appears to be
related to the loan referenced in Count 2 of the superseding indictment.
Ms. Wade is seeking dismissal of counts 4, 5, 8 and 9 of the indictment
because the government’s decision to file those charges was motivated by
vindictiveness.
ARGUMENT AND MEMORANDUM OF LAW
“Reindictment violates due process whenever a prosecutor adds new
charges merely to retaliate against the defendant for exercising statutory or
constitutional rights.” United States v. Kendrick, 682 F.3d 974, 981 (11th Cir. 2012)
citing United States v. Spence, 719 F.2d 358, 361 (11th Cir.1983). As a general
matter, a superseding indictment is potentially vindictive only if it “add[s]
additional charges or substitute[s] more severe charges based on the same
conduct charged less heavily in the first indictment.” United States v. LaDeau, 734
Case 0:23-cr-60173-KMW Document 130 Entered on FLSD Docket 08/21/2024 Page 8 of 12
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F.3d 561, 570 (6th Cir. 2013). Vindictiveness in this context means the desire to
punish a person for exercising his rights. United States v. Barner, 441 F.3d 1310,
1315 (11th Cir. 2006).
Defendants may challenge the government's charging decisions for actual
or presumptive vindictiveness. United States v. Zakhari, 85 F.4th 367, 379 (6th Cir.
2023); See LaDeau, 734 F.3d at 566. A defendant can show actual vindictiveness
by producing objective evidence that a prosecutor acted to punish the defendant
for standing on their legal rights. See LaDeau, 734 F.3d at 566. However, if a
defendant establishes that “(1) the prosecutor has some stake in deterring a
defendant’s exercise of their rights and (2) the prosecutor's conduct was
somehow unreasonable,” then the district court may find that there is a
“reasonable likelihood of vindictiveness” and may presume an improper
vindictive motive. Id.
In the instant case, the government filed additional charges against Ms.
Wade after Ms. Wade exercised two distinct rights. The first right Ms. Wade
exercised was her right to move for a dismissal based on prosecutorial
misconduct after the government advised the attorney her defense witnesses
that the defense witnesses would likely be prosecuted if they testified at the trial.
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(DE 66 and 67). The second right Ms. Wade exercised was objecting to the Court
reading to the jury the Allen charge a third time the after the third time the jury
advised the Court that they were deadlocked. (DE 69).
After Ms. Wade, through her attorneys, filed the motion to dismiss the
indictment due to prosecutorial, AUSA Snider at some approached every member
of the Ms. Wade’s defense team to express his displeasure about the motion being
filed. He expressly asked the undersigned attorney to withdraw the motion. 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.
After the jury advised the Court for the third time that they were
deadlocked, AUSA Snider asked the Court to read the Allen charge for a third time.
The defense argued that to send the jury back a third time to deliberate would
amount to coercion, especially in light of the body language demonstrated by
several members of the jury. As such, the defense cited a fairly recent 11th Circuit
Court casei which indicated that the trial judge may consider the body language
in determining whether an additional Allen charge is warranted. iiAUSA Snider
had a stake in having the Court to read the Allen charge for the third time.
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Additionally, AUSA had a stake in requesting that the motion to dismiss be
withdrawn.
AUSA Snider’s filing additional charges against Ms. Wade is unreasonable.
As stated above, the overwhelming majority of the BSO deputies that were
charged with PPP fraud were only charged with wire fraud counts related to the
PPP loans they received. Moreover, there was sufficient evidence for the
government to charge counts 5, 8, and 9, false statements to the SBA, when the
initial indictment was filed. Accordingly, this Cout should find that AUSA Snider’s
filing of additional charges against Ms. Wade is presumptively vindictive.
Conclusion
Based upon the above facts, arguments and citation of authorities, this
Court should dismiss Counts 4, 5, 8 and 9 of the superseding indictment because
the government’s decision to file those charges was motivated by vindictiveness.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on August 21, 2024, I electronically filed
the foregoing motion/document with the Clerk of the Court using
CM/ECF. I also certify that the foregoing motion/document is being
serving on all counsel of record via transmission of Notices of
Case 0:23-cr-60173-KMW Document 130 Entered on FLSD Docket 08/21/2024 Page 11 of 12
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Electronic Filing generated by CM/ECF or in some other authorized
manner for those counsel or parties who are not authorized to receive
electronic Notices of Electronic Filing, on this 21st day of August, 2024.
Respectfully Submitted,
/s/ Johnny L. McCray, Jr
Johnny L. McCray, Jr.
Florida Bar No. 342319
Law Office of Johnny L. McCray, Jr.,
P.A.
400 East Atlantic Boulevard
Pompano Beach, Florida 33060
Tel: (954) 781-3662
Fax: (754) 307-2857
mccrayjlaw@gmail.com
/s/ Daryl E. Wilcox
Daryl E. Wilcox
Florida Bar No. 838845
5201 S.W. 18th Street
Plantation, Florida 33317
Tel: (954) 303-1457
darylewilcox06@gmail.com
Attorneys for Defendant
i See Rubinstein v. Yehuda, 38 F. 4th 982, 996 (11th Cir. 2022) (When considering whether
an Allen charge was coercive, we are mindful that “[a] district judge, watching the jurors file back
into the courtroom and looking them in the eye, can make a better judgment ... than an appellate
court reading the cold record)
ii
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