Indictment — United States v. Tracy D. Wade (Dkt. 150, 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. 150 · 2024-09-11 · Docket on CourtListener

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UNITED STATES DISTRICT COURT 
SOUTHERN DISTRICT OF FLORIDA 
 
UNITED STATES OF AMERICA,              Case No.23-cr-60173-KMW (Graham) 
 
 
v. 
 
CAROLYN D. WADE and 
TRACY D. WADE, 
                   
                          Defendants. 
__________________________/                  
 
DEFENDANT CAROLYN D. WADE’S REPLY TO UNITED STATES’ RESPONSE IN 
OPPOSITION TO DEFENDANT’S AMENDED MOTION TO DISMISS THE 
ADDITIONAL CHARGES IN THE SUPERSEDING INDICTMENT FOR VINDICTIVE 
AND RETALIATORY PROSECUTION 
 
COMES NOW the Defendant, CAROLYN D. WADE (hereinafter Mrs. Wade”),  
 
 by and through her undersigned counsel, pursuant to Federal Rules of Criminal  
 
Procedure 12 (b), and hereby submits this Reply in support of the Motion to  
 
Dismiss the Additional Charges in the superseding indictment against Mrs. 
 
Wade as Vindictive. In support of this Motion, the Mrs. Wade state as follows: 
 
 
1. Contrary to the government’s assertion in its Response filed September 4, 
2024, the mistrial was not granted on the parties’ consent. After the jury’s 
second communication of its deadlock to the Court, defense counsel 
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advised the Court that the language of a further Allen Charge reading 
basically imposes undue coercion on the jury where it said that a 
substantial majority of the number in favor, and that those who disagree 
should reconsider whether their doubt is a reasonable one. See Transcript 
of Trial, May 21, 2024, page 15, paragraph 15. 
2. Additionally, in support of its objection to the further reading of the Allen 
Charge, Mr. McCray informed the Court that there was authority to 
support the Court’s taking into account the body language of the jurors. 
See Transcript of Trial, May 21, 2024, page 16, paragraph 3. 
3. The Court inquired further about the case defense counsel referenced and 
afforded the defense an opportunity to retrieve his laptop from 
downstairs and provide the citation. See Transcript of Trial, May 21, 2024, 
page 17, paragraph 3. 
4. Mr. Snider offered authority to the Court in support of its position that it is 
essentially the judge’s call to give a further Allen instruction even after the 
second time the jury was deadlocked, in essence pushing for a third 
reading. See Transcript of Trial, May 21, 2024, page 17, paragraph 14. 
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5. Upon presenting this court with the Rubinstein v. Yehuda, 38 F.4th 982  (11th 
Cir. 2022) citation and the test it enunciated, the appeals court turned its 
attention to the five factors it outlined as guidance for the district Judge 
to consider, inclusive of the “body language” of the jurors. See Transcript 
of Trial, May 21, 2024, page 19, paragraph 5. 
6. Thereupon, the court expressed its inclination not to provide the Allen 
charge again, but to ask the jury to make “one last attempt to deliberate. 
See Transcript of Trial, May 21, 2024, page 21, paragraph 20. 
7. Mr. Snider then inquired whether the court  would give an Allen charge, in 
the event the jury remained deadlocked, to which the court responded 
that it would not. See Transcript of Trial, May 21, 2024, page 22, paragraph 
2. 
8. At that point Mr. Snider registered his position in opposition, not in 
agreement: 
“MR. SNIDER:  So the Government’s position is that the Court 
give the Allen charge now” See Transcript of Trial, May 21, 
2024, page 22, paragraph 6. 
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9. The Court recessed at 2:29 pm briefly, and resumed at 3:17 pm. 
Thereafter, the Court addressed the lawyers stating it received 
communication indicating that the jury continues to be deadlocked and 
that the Court was going to have them enter the courtroom and declare 
this case a mistrial and excuse them for the afternoon. See Transcript of 
Trail, May 21, 2024, page 23, paragraph 21. 
10.  In response to the court’s request for any comment from counsel, the 
government stated: 
“MR. SNIDER: I think the government—we asked for the Allen 
charge. I think the Court overruled us. I just want the record to be 
clear.” 
“THE COURT: Of course. I decided that it wasn’t appropriate. This is 
our third attempt. “See Transcript of Trial, May 21, 2024, page 24, 
paragraph 6. 
11.  In fact, the mistrial was granted over the Government’s objection. The 
defendant’s objection to a third reading of the Allen charge was in 
essence, an appeal against verdict being attained by coercive means as 
established in Brewster v. Hetzel, 913 F.3d 1042, 1053 (11th Cir. 2019) citing 
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Lowenfield v. Phelps, 484 U.S. 231 (1988). Defendant’s challenge to the 
third reading of the Allen charge on the authority of Rubenstein v. Yehuda,  
was an assertion of her fundamental protected right to have a jury make a 
finding on the facts before it, free from the coercive nature of extensive 
unwarranted deliberations . United States v. Woodard, 531 F.3d 1352, 1364 
(11th Cir. 2008).  
12.  The facts underpinning the granting of a mistrial in Defendant’s first trial  
are distinguishable from United States v. Mays, 738 F.2d 1190 (11th Cir. 
1984) in that Defendant, Carolyn Wade, asserted a fundamental protected 
right establishes the presumption of prosecutorial vindictiveness.   
13.  Moreover, the facts on which the government relies to rebut any 
presumption of vindictiveness are dubious. Although the government 
asserts in its opposition that it learned of the conspiracy alleged in Count 
4 only after it interviewed Haydee Granados in June 2024, from as early as 
at least February 15, 2024, during defense team’s phone call with Mr. 
Snider, the government was aware of the theory of defense that Haydee 
Granados was the point person for the loan application, had been given 
access to the Defendant’s Womply and email accounts, and that the mode 
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of communication between the parties was primarily by texts and emails 
between Tracy Wade, Haydee Granados and Carolyn Wade. The 
government was aware that the Defendant indicated Haydee approached 
Tracy Wade who was a friend of Haydee’s husband and that Haydee was 
preparing PPP loans for others for a fee. The government also knew that it 
intended to prove its case by looking at the IP addresses of the Wade 
Funeral Home, the Defendants’ cell phones, the IP addresses for the 
Defendants’ home analyzing log on information with the SBA, and the 
lending bank and supportive PPP platforms. The government was aware 
that among the IP addresses it knew belonged to the Defendants, it also 
had unidentified IP addresses in the chain of activities about which 
defense counsel inquired and had stipulated to knowing that IP address 
ending in .125 (Haydee Granados Rivero’s IP address) was responsible for 
uploading the fraudulent IRS schedule C form.  
14.  From at least March 16, 2024 when the government received documents 
and information from Oto Analytics, Inc, dba Womply (“Womply”), in 
response to the government’s trial subpoena issued on March 7, 2024, 
requesting information related to Carloyn Wade’s PPP application, it 
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received some 20 named files containing other PPP loan applications of 
other persons including the names Haydee Granados, Tracy Wade, and 
others which had common IP addresses used in the application process. 
The nature of the common names and IP address information was 
sufficient pretrial to inform the government such that it knew or reasonably 
should have known through the exercise of further investigation – not the 
least of which include looking into the folders of the named 20 PPP 
applicants it had received from Womply. The government indicates it did 
not look at these files, but had it done so, the government would have 
determined that there was collaboration between Haydee Granados and 
others which might have been suggestive of a conspiracy. Where, as here, 
the alleged conspiracy set out in Count 4 of the superseding indictment 
could reasonably have been brought in the initial indictment, especially 
where the government had sufficient evidence in its possession, i.e., 
twenty (20) PPP files, to allege conspiracy in the original indictment, the 
defense’s well-established presumption of vindictiveness, is not rebutted. 
Goodwin, at 381.     
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15.  The Due Process Clause protects defendants from vindictive treatment 
based on the exercise of a constitutional or statutory right. “Vindictiveness 
in this context means the desire to punish a person for exercising his 
rights.” United States v. Barner, 441 F.3d 1310, 1315 (11 Cir. 
2006) (citing United States v. Goodwin, 457 U.S. 368, 372 (1982)). 
16.  “[A] superseding indictment supports a presumption of vindictiveness 
when the additional charges are based on the same conduct that was the 
subject of the first indictment, when the same sovereign was involved, 
and most importantly, when the decision to file increased charges 
directly followed the assertion of a procedural right.” United States v. 
Garza-Juarez, 992 F.2d 896, 907 (9th Cir. 1993). And, “[t]he presumption 
may be found more readily when the same conduct forms the basis for both 
indictments, but this is not essential to a showing of vindictiveness.” 992 
F.2d at 907. 
17.  With Defendant Wade proving the presumption of vindictiveness, the 
burden shifts to the government to rebut the presumption. 
18.  “It is hornbook law that a federal court may dismiss an indictment if the 
accused produces evidence of actual prosecutorial vindictiveness 
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sufficient to establish a due process violation, or if he demonstrates a 
likelihood of vindictiveness sufficient to justify a presumption.” United 
States v. Stokes, 124 F.3d 39, 45 (1st Cir. 1997) (internal citations omitted). 
19.  The Supreme Court has expressly left open the possibility that a defendant 
could prevail on a vindictiveness claim in the pretrial context by proving 
“objectively that the prosecutor's charging decision was motivated by a 
desire to punish him for doing something that the law plainly allowed him 
to do.” Goodwin, 457 U.S. at 384. 
20.  The government’s attempt to rebut the presumption of vindictiveness is 
further undermined by the fact that the basis of the false statements 
charges are essentially the same as the wire fraud charges. Nor does the 
government’s assertion that the additional charges are not more serious 
than the initial indictment undermine the established presumption of 
vindictiveness because the cumulative effect of the multiple charges 
exceed the cumulative effect of the original indictment. Wade’s maximum 
potential sentence was 20 years. See First Penalty Sheet. The 
threatened charges would increase her exposure to a sentence of 47 
years. See Second Penalty Sheet of the Superseding Indictment. “[A] 
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superseding indictment adding new charges that increase the potential 
penalty ... violate[s] due process if the prosecutor obtained the 
new charges out of vindictiveness. [Cit.] 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) (citing United States v. 
Spence, 719 F.3d 358, 361 (11th Cir. 1983) and United States v. Goodwin, 457 
U.S. 368, 372 (1982)). A presumption of vindictiveness arises when the facts 
suggest “a realistic likelihood of ‘vindictiveness.” Goodwin, 457 U.S. at 
384 (citing Blackledge v. Perry, 417 U.S. 21, 27 (1974)). Actual vindictiveness 
“ ‘essentially requires a showing that the prosecution's justification is 
pretextual.’ ” Barrit v. Sec'y, Fla. Dept. of Corrs., 968 F.3d 1246, 1253 (11th Cir. 
2020) (quoting United States v. Kendrick, 682 F.3d 974, 982 (11th Cir. 2012). 
21. While generally where a modification in charging decision by the 
government follows a mistrial occurring for neutral reasons such as a hung 
jury and without objection by the government, no presumption of 
vindictiveness is raised, in the instant case, the government objected to the 
mistrial insisting on a further Allen charge and in circumstances where the 
defendant asserted her right to a non- coerced jury verdict. As such, the 
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established presumption of vindictiveness is not overcome by the 
government, consequently in determining the likeliness of prosecutorial 
vindictiveness, the court must look to the totality of the objective 
circumstances surrounding the prosecutorial decision. United States v. 
Contreras, 108 F.3d 1255, 1263 (10th Cir. 1997).    
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 the established 
presumption of vindictiveness, which its response does not rebut.   
 
 
CERTIFICATE OF SERVICE 
 
I HEREBY CERTIFY that I electronically filed the foregoing reply 
motion/document with the Clerk of the Court using CM/ECF. I also 
certify that the foregoing motion/document is being served on all 
counsel of record via transmission of Notices of Electronic Filing 
generated by CM/ECF or in some other authorized manner for those 
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counsel or parties who are not authorized to receive electronic 
Notices of Electronic Filing, on this 11th day of September, 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  
 
 
 
  
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