Information — United States v. Tracy D. Wade (Dkt. 134, 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. 134 · 2024-08-21 · Docket on CourtListener

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UNITED STATES DISTRICT COURT 
SOUTHERN DISTRICT OF FLORIDA 
 
CASE NO. 23-60173-CR-WILLIAMS 
 
UNITED STATES OF AMERICA                                    
 
            
 
Plaintiff,                                                                         
v. 
 
CAROLYN DENISE WADE and  
TRACY D. WADE,  
           
  
 
Defendant, 
_______________________________________/ 
 
DEFENDANT CAROLYN WADE’S MOTION TO DISMISSS SUPERSEDING 
INDICTMENT DUE TO BRADY VIOLATION PRIOR TO THE TRIAL ON THE 
ORIGINAL INDICTMENT AND REQUEST FOR EVIDENTIARY HEARING1 
 
 
Defendant, Carolyn Wade, through counsel, pursuant to the Due Process Clause 
of the Fifth Amendment of the United States Constitution, Brady v Maryland, 373 U.S. 
83, 83 S. Ct. 1194 (1963) and Rule 5(f) of the Federal Rules of Criminal Procedure, moves 
to dismiss the superseding indictment (DE 88), due to the government’s failure to 
disclose evidence favorable to Ms. Wade prior to the trial on the original indictment. 
Additionally, Mrs. Wade requests that the Court hold an evidentiary hearing to 
determine whether dismissal is the appropriate sanction.  In support thereof, Mrs. Wade 
states:  
Procedural and Factual Background 
 
1 On August 12, 2024, during a status conference, the Court ordered that defense motions be filed by August 19, 2024. 
(DE  126). The undersigned was recently hospitalized and still recovering when the Court entered the order. The 
undersigned took longer to fully recover than anticipated and is still not 100% healthy. Therefore, the undersigned was 
unable to finish this motion prior to the August 19, 2024 deadline.  
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On October 19, 2023, Mrs. Wade was arraigned on an indictment which charged 
her with one count of wire fraud, in violation of 18 U.S.C. § 1343. (DE 11).  In summary 
fashion, the indictment alleged that from May 2021 to August 2021, Mrs. Wade 
knowingly devised a scheme to defraud by means of false representations and used wire 
communications for the purpose of executing the scheme. (DE 3).  The indictment further 
alleged that the purpose of the scheme was for Mrs. Wade to unlawfully unrich herself 
by making false statements to obtain a Paycheck Protection Program (PPP) loan. (DE 3). 
 
During the arraignment, the Court entered the following order pursuant to the 
Due Process Protection Act:  
It is ORDERED AND ADJUDGED that pursuant to the Due 
Process Protections Act, the Court confirms the United States 
obligation to disclose to the defendant all exculpatory 
evidence- that is, evidence that favors the defendant or casts 
doubt on the United States case, as required by Brady v. 
Maryland, 373 U.S. 83 (1963) and its progeny, and ORDERS 
the United States to do so. The government has a duty to 
disclose any evidence that goes to negating the defendant’s 
guilt, the credibility of a witness, or that would reduce a 
potential sentence. The defendant is entitled to this 
information without a request. Failure to disclose exculpatory 
evidence in a timely manner may result in consequences, 
including, but not limited to, exclusion of evidence, adverse 
jury instructions, dismissal of charges, contempt proceedings, 
disciplinary action, or sanctions by the Court. 
 
(DE 11).  When Mrs. Wade was arraigned, she was represented by Attorney Brian Silber. 
(DE 10).  However, on February 20, Attorney Johnny L. McCray, Jr. filed a notice of 
substitution of counsel and became Mrs. Wade’s counsel of record. (DE 23 and 24).  
 
Prior to filing the notice of substitution of counsel, around February 14, 2024, Mr. 
McCray had a telephone conference with prosecuting attorney Assistant United States 
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Attorney (AUSA) David Snider. During this telephone conversation, Mr. McCray advised 
AUSA that the defense theory was that an individual named Haydee Granados 
(“Haydee”) completed the PPP application on behalf of Mrs. Wade and without Mrs. 
Wade’s knowledge, Haydee included false information regarding income and uploaded a 
fraudulent IRS Schedule C Form as part of the PPP loan application process.  
 
On March 7, 2024, the government issued a subpoena to testify at hearing or trial 
to Oto Analytics, Inc. dba Womply. Oto Analytics, Inc. dba Womply. See government 
subpoena to Oto Analytics, Inc. dba Womply attached hereto as defense exhibit 1. 
Womply was the technology company that helped the Small Business Administration 
facilitate PPP loan applications. See (DE 86), Trial Transcript, pg. 12, lns 2-3.  
 
The attachment to the subpoena directed Womply’s legal compliance department 
to provide all records related to Ms. Wade’s PPP loan number. The subpoena specifically 
requested other PPP applications with the same IP addresses as the IP addresses 
connected with Ms. Wade’s PPP loan number.  
 
On March 14, 2024, Mr. McCray had a telephonic meeting with AUSA Snider. Mr. 
McCray requested from AUSA Snider any information in the government’s possession 
relating to Haydee Granados involvement in the preparation of Ms. Wade’s PPP 
application. AUSA Snider responded that he was under no obligation to interview Ms. 
Grandos.  
 
Around March 18, 2024, via email, AUSA Snider advised Mr. McCray that the 
government had received records from Womply pursuant to a subpoena that the 
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government issued to Womply. AUSA Snider advised Mr. McCray that the records had 
been received on March 16, 2024.   
 
Among the records received by the government were 21 PPP files associated with 
IP address 76.110.183.125. During the trial, it was established that the IP address 
ending in 125 was associated with Haydee Granados. (DE 111, Transcript of Agent Kelly 
Depietrantonio, pg. 6, lns. 14-17).  It was further established that during the trial that 
Haydee Granados’s IP address ending in 125 was involved in the preparation of 
approximately 20 PPP loan applications that had nothing to do with Carolyn Wade. (DE 
111, pgs 27-28).  
 
The defense contends that the government was aware as early as March 16, 2024, 
that Haydee Granados was involved in the preparation of PPP loan applications. The 
government knew that that the fraudulent schedule C that was uploaded with Ms. 
Wade’s application was uploaded from the Haydee Granados’s IP address (DE 111, pg. 
9, lns 3-7).   
 
The defense further contends that the approximately 20 PPP loan applications 
that Haydee Granados assisted in preparing contained false or fraudulent information 
and the government knew that the approximately 20 PPP loan applications contained 
false or fraudulent information, and the government failed to disclose this information 
to the defense. At the very least the government turned a blind eye to Haydee Granado’s 
involvement in the preparation of approximately 20 PPP loan applications which 
contained false information.  
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The trial on the original indictment ended in a mistrial after the jury could not 
reach a unanimous verdict. (DE 72). Thereafter, the government filed a superseding 
indictment adding charges against Ms. Wade and adding her husband Tracy Wade as an 
additional defendant.   
 
Mrs. Wade seeks a dismissal of the superseding indictment because had the 
government disclosed to the defense that Haydee Granados was involved in the 
preparation of PPP loan applications which contained false information, the evidence 
would have been admissible under Fed. R. Evid. 404(b). As such, there was a reasonable 
possibility that the Mrs. Wade would have been acquitted. Additionally, Mrs. Wade 
submits that the government’s conduct was so egregious that dismissal of the 
superseding indictment is the appropriate sanction.  
Argument and Memorandum of Law 
 
The Due Process Protection Act, Pub. L. No. 116-182, 134 Stat. 894 (Oct. 21, 2020), 
amended 5(f)(1) of the Federal Rules of Criminal Procedure to require district courts to 
issue, at the outset of every criminal case, an order confirming the prosecutor's disclosure 
obligations under Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963). See Fed. R. 
Crim. P. 5(f). In the Southern District of Florida, the order sets forth the possible 
sanctions that may be imposed upon violation of the order.  Dismissal of charges is one 
of the possible sanctions listed in the Southern District of Florida’s order.  
 
Although dismissal of an indictment for prosecutorial misconduct is an extreme 
sanction, it is a sanction within a court's discretion if sufficiently egregious prosecutorial 
misconduct has occurred and has prejudiced the defendant. United States v. Lyons, 352 
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F. Supp. 2d 1231 (M.D. Fla. 2004). Although retrial is normally the most severe sanction 
available, dismissal with prejudice may be proper for a Brady violation where defendant 
can show both willful misconduct by government and prejudice.  Gov't of Virgin Islands 
v. Fahie, 419 F.3d 249 (3d Cir. 2005).  
 
Dismissal for a due-process violation requires the government's conduct to “be so 
grossly shocking and outrageous as to violate the universal sense of justice. United States 
v. Bundy, 968 F.3d 1019, 1030 (9th Cir. 2020). A district court may dismiss an indictment 
under its inherent supervisory powers (1) to implement a remedy for the violation of a 
recognized statutory or constitutional right; (2) to preserve judicial integrity by ensuring 
that a conviction rests on appropriate considerations validly before a jury; and (3) to 
deter future illegal conduct. Bundy, 968 F.3d at 1030.   
 
In Bundy, the 9th Circuit of Appeals affirmed a district court’s order to dismiss an 
indictment mid-trial after the government began disclosing evidence favorable to the 
defense that should have been produced to the defense well before trial. Bundy, 968 F.3d 
at 1023.  The Bundy case involved the well-publicized effort by the Bureau of Land 
Management to impound Cliven Bundy's cattle for a twenty-year failure to pay federal 
grazing fees. Id. at 2022. Bundy and hundreds of armed supporters from around the 
United States forced federal officials to abandon the impoundment plan. Id. 
 
A federal grand jury indicted the Bundy defendants for a slate of federal crimes 
stemming from the standoff, including impeding federal officers, threatening federal law 
enforcement, and extortion, along with conspiracy to commit these crimes. Id. at 1024. 
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The favorable evidence withheld by the government included evidence that rebutted the 
government’s assertion that the defendant had lied about the threat his fear of being 
surrounded by government snipers. Id. at 1025. Id. at 1025.  
 
In determining whether the district court’s decision to dismiss the case mid-trial 
was justified, the Bundy court reasoned the government should not be permitted “a 
chance to try out its case, identify any problem areas, and then correct those problems 
in a retrial. Id. at 1043. The Bundy court further reasoned that there was a need to 
impose a sanction that will serve to deter future prosecutions from engaging in the same 
type of misconduct. Id. at 1044.  
 
 The Bundy Court found that the district court had not abused its discretion and 
that dismissal with prejudice was within the range of appropriate remedies. Id. at 1045. 
The Bundy Court concluded that the perquisites for dismissing a case under the district 
court’s supervisory authority were met, (1) to implement a remedy for the violation of a 
recognized statutory or constitutional right; (2) to preserve judicial integrity by ensuring 
that a conviction rests on appropriate considerations validly before a jury; and (3) to 
deter future illegal conduct. Id.  
In the instant case, the government either knew that Haydee Granados had 
assisted in the preparation of PPP files that included false information or at the very 
least, turned a blind eye to the likelihood of that fact. As a matter of law, the 
prosecution is deemed to have knowledge of and access to anything in the possession, 
custody or control of any federal agency participating in the same investigation of the 
defendant. Bundy, 968 F.3d at1037. The defense contends that evidence of Haydee 
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involvement in the preparation of 20 additional PPP loan application containing false 
information would have been admissible under Fed. R. Evid. 404(b). It is now well-
settled that “Rule 404(b) is one of inclusion which allows such evidence unless it tends 
to prove only criminal propensity. The list provided by the rule is not exhaustive and 
‘the range of relevancy outside the ban is almost infinite ”See United States v. 
Cohen, 888 F. 2d 770, 776 (11th Cir. 1989). Generally, the rule is used by the 
prosecution to introduce evidence of the accused's conduct on another occasion; 
however, the defense is also permitted to make use of the rule to offer evidence of the 
behavior of a witness other than a defendant. Id. at 976. 
        Moreover, the standard for admission is relaxed when the evidence is offered by  
 
a defendant. Id. “When the defendant offers similar acts evidence of a witness to  
 
prove a fact pertinent to the defense, the normal risk of prejudice is absent.” Id. at  
 
776-77. The defendant must merely demonstrate that it is not offered “to prove the  
 
character of a person in order to show action in conformity therewith.” Id. at 776.  
  
In Cohen, the theory of defense was based upon an assertion that two   
 
witnesses concocted and executed the fraudulent scheme without the appellants' 
  
knowledge or participation. Id. at 775. The defense attempted to introduce  
 
evidence that one of the witnesses was involved in similar fraudulent conduct prior to  
 
his association with the appellants. Id. The Eleventh Circuit noted that the evidence  
 
was “critical to support this argument.” Id. “By preventing the introduction of  
 
relevant evidence of the prior conduct of an essential government witness, the court  
 
deprived the [defendants] from presenting an adequate defense and thus deprived  
 
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them of a fair trial. We have no alternative but to require a new trial.” Id. at 777.   
 
 
Here, the government failed to turn over any information relating to Haydee 
Granados’s involvement in the preparation of 20 additional PPP applications until the 
eleventh hour prior to trial. The defense had insufficient time to investigate whether 
those files contained false information.  As such this Court should dismiss the 
superseding indictment in this case.  
Conclusion  
 
 Based on the foregoing fact, arguments and citation to authorities, the defendant 
Carolyn Wade respectfully requests that the Court dismiss the superseding indictment 
and/or conduct an evidentiary hearing to determine whether dismissal is the appropriate  
sanction.  
CERTIFICATE OF SERVICE 
 
I HEREBY CERTIFY that a true and correct copy of the foregoing pleading was 
electronically filed with the Clerk of the Court via CM/ECF. I also certify that the 
foregoing pleading was served electronically on this date on all counsel of record via 
Notice of Electronic Filing generated by CM/ECF on August 21, 2024.  
Respectfully submitted, 
 
/s/ Johnny l. McCray, Jr.__ 
Johnny L. McCray, Jr., Esquire  
Law Office of Johnny L. McCray, Jr., P.A. 
Counsel for Defendant Smith 
Florida Bar No. 342319  
400 E. Atlantic Boulevard 
Pompano Beach, Florida 33060 
(954) 781-3662 
McCrayjlaw@gmail.com   
 
 
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/s/ Daryl E. Wilcox.___ 
Daryl E. Wilcox, Esquire  
Attorney for Carolyn Wade and Tracy Wade 
Florida Bar No.838845  
5201 S.W. 18th Street 
Plantation, Florida 33317 
(954) 303-1457 
darylewilcox06@gmail.com  
 
 
 
                                                            
  
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