Information — United States v. Tracy D. Wade (Dkt. 166, S.D. Fla. No. 0:23-cr-60173)

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U.S. District Court for the Southern District of Florida · No. 0:23-cr-60173-KMW · Doc. 166 · 2024-09-30 · Docket on CourtListener

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UNITED STATES DISTRICT COURT 
SOUTHERN DISTRICT OF FLORIDA 
FORT LAUDERDALE DIVISION 
CASE NO. 23-60173-CR-WILLIAMS/HUNT 
 
 
UNITED STATES OF AMERICA, 
 
Plaintiff, 
 
v. 
 
CAROLYN DENISE WADE and 
TRACY D. WADE,  
 
Defendants. 
_______________________________________/ 
 
REPORT AND RECOMMENDATION ON MOTION TO DISMISS COUNTS 
THIS CAUSE is before this Court on Defendant Carolyn Wade’s Amended Motion 
to Dismiss Counts 4, 5, 8, 9.  ECF No. 130.  The Honorable Kathleen M. Williams referred 
this Motion to the undersigned for a report and recommendation.  ECF No. 133; see also 
28 U.S.C. § 636(b); S.D. Fla. Mag. R. 1.  The undersigned held a hearing on September 
26, 2024.  Having considered the Motion, Response and Reply, and having considered 
the representations made by counsel at the hearing, the undersigned hereby 
recommends for the reasons outlined below that Defendant’s Motion be DENIED.  
BACKGROUND 
 
Carolyn Wade was charged in a one-count Indictment alleging wire fraud in 
connection with a Paycheck Protection Program (“PPP”) application.  The Indictment 
alleged that Ms. Wade, a Broward Sheriff’s Office (BSO) Deputy, applied for a PPP loan 
and included materially false information in her application, including a claim that she 
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operated a business that generated over $100,000 in gross income.  Defendant went to 
trial in May 2024 before the Honorable Donald L. Graham, U.S. District Judge, and a jury.   
During trial, the defense filed a motion to dismiss the Indictment, alleging 
prosecutorial misconduct.  Judge Graham held an evidentiary hearing and then denied 
the motion.  The case was submitted to the jury, and on the second day of deliberation, 
the jury sent a note stating that they were deadlocked.  They were sent back to continue 
to deliberate after the Court reread the pattern duty-to-deliberate instruction.  The jury 
sent out a second note and were sent back to try again after hearing the same instruction.  
After the third note, the Court declared a mistrial.  The government sought and obtained 
a Superseding Indictment adding an additional defendant and additional false statement 
charges.  Defendant alleges these new charges are the product of prosecutorial 
vindictiveness, added in retaliation for Defendant’s filing of the misconduct motion and 
objecting to the government’s request to give the deadlocked jury an Allen charge.  The 
case is currently set for trial October 7, 2024. 
LEGAL STANDARD 
As a general rule, if a prosecutor has probable cause to believe the accused 
committed an offense defined by statute, “the decision whether or not to prosecute, and 
what charge to file or bring before a grand jury, generally rests entirely in his discretion.” 
Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978); see also United States v. Barner, 441 
F.3d 1310, 1315 (11th Cir. 2006). 
But a prosecutor’s discretion is not unlimited, and using prosecutorial action to 
punish a person for exercising a protected statutory or constitutional right violates due 
process.  See United States v. Goodwin, 457 U.S. 368, 372 (1982).  As applicable in the 
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procedural posture of this case, “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)).  However, 
because “the imposition of punishment is the very purpose of virtually all criminal 
proceedings,” and “motives are complex and difficult to prove,” a court will not presume 
a vindictive prosecutorial motive except in certain procedural and factual circumstances 
where “a reasonable likelihood of vindictiveness exists.” Goodwin, 457 U.S. at 372-73.  
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); 
United States v. LaDeau, 734 F.3d 561, 566 (6th Cir, 2013).  Actual vindictiveness may 
be shown by producing objective evidence that a prosecutor acted to punish the 
defendant for exercising legal rights. 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 there is a “reasonable likelihood of vindictiveness” and may 
presume an improper vindictive motive. Id. 
In United States v. Mays, 738 F.2d 1188 (11th Cir. 1984), the Eleventh Circuit 
addressed a situation similar to ours: whether a presumption of vindictiveness applied 
when the government filed additional charges in a superseding indictment after a mistrial. 
In holding that no such presumption applied in those circumstances, the Eleventh Circuit 
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recognized that “in a pre-trial setting, as opposed to appellate situations . . . the Court has 
viewed prosecutorial actions resulting in the enhancement of charges with less alarm.” 
Id. at 1189 (citing Goodwin, 457 U.S. at 381).  The Mays court reached the following 
conclusion: 
The declaration of the mistrial after the first trial did not result from 
[defendant’s] assertion of a protected right, but came about because the 
jury was simply unable to reach a verdict. It is true that the mistrial was 
granted at [defendant’s] behest, but a motion for mistrial because the jury is 
unable to agree cannot be said to engender a “punitive” or “vindictive” 
response. The mistrial follows as a matter of course from the jury’s inability 
to agree upon a verdict. It does not result from an attack upon a conviction. 
[Defendant] did not pursue any right such as would instigate retaliatory 
action on the part of the prosecution. Thus, the additional charges cannot 
be characterized as having arisen from any exercise of a protected right. 
For this reason, we do not believe there is a presumption of vindictiveness 
under these circumstances. 
 
Id. at 1190.  See also United States v. Kendrick, 682 F.3d 974, 983 (11th Cir. 2012) (no 
presumption of vindictiveness when government brought a new indictment against a 
defendant after an acquittal); United States v. South, 77 Fed. Appx. 959, 967 (11th Cir. 
2008) (no presumption of vindictiveness applied when government brought a superseding 
indictment after defendant withdrew his guilty plea); Barner, 441 F.3d at 1316 (reversing 
district court for applying presumption of vindictiveness when government filed fifth 
superseding indictment after defendant filed pretrial motions, including an unsuccessful 
motion to dismiss alleging prosecutorial misconduct). 
In a posttrial setting, even when the government’s decision to file more serious 
charges after a defendant’s successful appeal does give rise to a presumption of 
vindictive prosecution, the government may rebut this presumption with an objective 
explanation justifying the prosecutor’s actions. See United States v. Jones, 601 F.3d 
1247, 1260-61 (11th Cir. 2010).  Once rebutted, a defendant’s vindictive prosecution 
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claim will prevail only if she can affirmatively demonstrate actual prosecutorial 
vindictiveness. To establish actual prosecutorial vindictiveness, the defendant has the 
burden of establishing, by objective evidence: 1) the prosecutor acted with genuine 
animus toward the defendant; and 2) the defendant would not have been prosecuted but 
for that animus. See Barner, 441 F.3d at 1322 (citing United States v. Wilson, 262 F.3d 
305, 314 (4th Cir. 2001)).  
DISCUSSION 
Defendant has moved to dismiss Counts 4, 5, 8 and 9 of the Superseding 
Indictment.  Defendant argues the prosecutor’s decision to add these new counts was 
motivated by vindictiveness engendered by two events: 1) Defendant’s filing of a mid-trial 
motion to dismiss alleging prosecutorial misconduct; and 2) the District Court’s decision 
not to give an Allen charge to the jury after the jury announced it was deadlocked.   
In the motion to dismiss, the defense alleged that the prosecutor improperly 
interfered with two material defense witnesses, Haydee Granados and her husband, 
Eduardo Rivera.  The theory of defense at trial was that Ms. Granados prepared Ms. 
Wade’s PPP loan application and included false information without Ms. Wade’s 
knowledge.  Defense counsel represents that both witnesses, as communicated through 
their lawyer, were prepared to testify at the trial. However, the day before their scheduled 
testimony, AUSA David Snider warned their lawyer they could be charged with assisting 
Ms. Wade to commit PPP fraud, and their trial testimony could be used against them.  
The result, according to defense counsel, was to “put fear into them,” and both witnesses 
decided not to testify. 
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The defense avers AUSA Snider approached lead defense counsel three times 
asking him to withdraw the motion.  He also approached a legal assistant and co-counsel 
asking for the same thing.  AUSA Snider expressed displeasure at the filing of the motion, 
both before and after the hearing, stating he does not take lightly ethical attacks against 
him because he values his ethical responsibilities and reputation.  Defense counsel 
declined to withdraw the motion.  The Court held an evidentiary hearing on the motion, 
and ultimately denied the motion, finding no “improper governmental interference.”  ECF 
No. 146 at 8 and Ex. 3.   
The case was submitted to the jury, and after deliberations that extended to a 
second day, the jury advised the Court on three separate occasions that it 
was deadlocked. According to the instant Motion, the Court twice read the jury an Allen 
Charge.1  At oral argument, defense counsel retreated from this position, acknowledging 
that in fact, as the transcript reflects, the District Court never read the Allen charge to the 
jury.  Rather, the Court heard argument from both sides, but ultimately twice reread the 
pattern instruction on the jury’s duty to deliberate.  When the jury notified the Court it was 
deadlocked a third time, the Court declined to read the Allen charge and declared a 
mistrial.  The government requested an Allen charge after the second jury note, and the 
defense opposed this request.  The government did not renew its request after the third 
note, simply noting its previous request for the record.2   
 
1 See 11th Circuit Pattern Jury Instructions Criminal Case, T5. The Allen charge, or 
“dynamite” charge, derives its name from Allen v. United States, 164 U.S. 492 (1896), in 
which the Supreme Court upheld an instruction urging the jury to reach a verdict. The 
District Judge here advised counsel that if he did decide to give an Allen charge, it would 
be modified to omit any reference to cost to the parties.    
2   The Court’s Order Declaring Mistrial states that the order was entered “with the Parties’ 
consent.”  ECF No. 72. 
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After the Court declared the mistrial, counsel engaged in unsuccessful plea 
negotiations.  AUSA Snider later told the Court and defense counsel at a status 
conference that the government would be refiling the case and would be adding charges 
of false statements to the SBA and would likely add one or more defendants.  This 
Superseding Indictment, with four additional charges against Ms. Wade and an additional 
defendant, followed.  These new counts are the counts Defendant alleges were motivated 
by vindictiveness.     
The government counters that: 1) the filing of new counts after a mistrial does not 
give rise to a presumption of vindictiveness; 2) even if there were a presumption, it has 
been rebutted because there was a legitimate basis for the filing of new charges; and 3) 
Defendant has not established actual prosecutorial vindictiveness. 
1. Presumption. 
The government argues no presumption of vindictiveness should apply here based 
on the declaration of a mistrial.  The undersigned agrees.  As in Mays, the government 
here sought and obtained a superseding indictment after a mistrial that resulted from a 
hung jury.  Thus, the mistrial was not the product of a defense motion asserting a 
constitutional right.  The mistrial “came about because the jury was simply unable to reach 
a verdict.”  738 F.2d at 1190.  And while it is true the government requested an Allen 
charge after the jury’s second note, the District Court’s decision to declare a mistrial after 
the third note was implemented without objection from either party.   There is nothing 
about the declaration of a mistrial in this case that suggests a presumption of prosecutorial 
vindictiveness would be appropriate here.     
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Likewise, the filing of a motion to dismiss sounding in prosecutorial misconduct is 
not such an extraordinary action as to create a presumption of vindictiveness.  While the 
prosecutor in this case may well have expressed his displeasure at what he saw as a 
challenge to his ethics and professional reputation, such motions are neither unusual nor 
remarkable in the trenches of federal trial court.  To some extent, such allegations come 
with the territory.  In any event, the filing of an unsuccessful motion alleging prosecutorial 
misconduct may result in hurt feelings, but it does not create a presumption of 
vindictiveness.  See, e.g., Goodwin, 457 U.S. at 381 (“It is unrealistic to assume that a 
prosecutor's probable response to [pretrial] motions is to seek to penalize and to deter. 
The invocation of procedural rights is an integral part of the adversary process in which 
our criminal justice system operates.”); Barner, 441 F.3d at 1320 (“Even a pre-trial motion 
based on prosecutorial misconduct is not so unusual that it should engender a 
presumption, ‘applicable in all cases,’ in which a defendant files such a motion.”) (citing 
Goodwin at 381).  
 
Accordingly, the undersigned finds no presumption of prosecutorial vindictiveness 
should apply in this case. 
2. Rebuttal. 
While arguing no presumption should apply, the government nonetheless offered 
what it terms an “objective explanation” for its decision to add new charges in the 
Superseding Indictment.  Simply put, the government proffers that the jury’s inability to 
reach a unanimous decision prompted a reassessment of the government’s case.  
Surmising that the jury failed to reach agreement on the intent to defraud element of the 
wire fraud charges, the government elected to seek alternative charges that did not 
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require this element of proof.  The Superseding Indictment includes charges of conspiracy 
and substantive making a false statement to the SBA, crimes which do not require proof 
of fraudulent intent.  The government further explains it did not have sufficient evidence 
to charge a conspiracy when the first Indictment was returned but avers it now has such 
evidence.  The government also notes the new false statement charges carry maximum 
penalties that are much lower than those for wire fraud, and additional convictions on the 
false statement charges would not affect the offense level calculation for a wire fraud 
conviction under the Sentencing Guidelines.    
The undersigned agrees the government has offered an objective explanation for 
the filing of the new conspiracy and false statement charges that would effectively rebut 
any presumption of prosecutorial vindictiveness.  See Jones, 601 F.3d at 1260–61. 
3.  Actual vindictiveness. 
Because Defendant has not established that a presumption should apply, and 
because the government has offered an objective explanation for the new charges that 
would effectively rebut such a presumption in any case, Defendant can only carry her 
burden by showing actual vindictiveness.  See Jones, 601 F.3d at 1261.  A showing of 
actual vindictiveness is “exceedingly difficult to make.”  United States v. Paramo, 998 F.2d 
1212, 1219-20 (3d Cir. 1993).  Such a showing requires proof that “(1) the prosecutor 
wanted to punish the defendant for exercising his rights (animus); and the prosecutor’s 
animus caused the prosecutor to bring charges of increased severity (causation).”  United 
States v. Myrie, No. 809-CR-572-T-30TGW, 2011 WL 250550, at *3 (M.D. Fla. Jan. 26, 
2011) (citing Barner at 1322). 
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Defendant has made no such showing here.  Any attribution of animus in this case 
would require an unwarranted mental leap from a prosecutor’s expressed displeasure at 
the mid-trial filing of a misconduct motion, or an assumed disapproval of the District 
Judge’s denial of a routine request for an Allen charge to a deadlocked jury, to a 
conclusion that the disgruntled prosecutor sought to add new—less serious—charges out 
of a desire for “vindictive retribution.”  Barner at 1320.  Likewise, a finding of causation 
requires the gainsaying of the government’s straightforward and logical “objective 
explanation” for its decision to add charges with a less onerous burden of proof.  Finally, 
the claim of animus or vindictiveness is belied by the totality of the prosecutor’s conduct 
following the mistrial.  AUSA Snider represents in his response that shortly after the 
mistrial he extended to Defendant a plea offer proposing a guilty plea to a false statement 
charge (two year maximum, as opposed to 20-year maximum for wire fraud) with a 
recommended sentence of time served, with no probation, fine, or forfeiture.  ECF No. 
145 at 17.  Defendant declined the offer. 
To establish actual prosecutorial vindictiveness, a Defendant must prove animus 
and causation. The undersigned finds Defendant has carried neither burden here and 
therefore has not established actual vindictiveness. 
RECOMMENDATION 
Based on the foregoing, the undersigned RECOMMENDS Defendant’s Amended 
Motion to Dismiss Counts 4, 5, 8, 9, ECF No. 130, be DENIED. 
After being served with a copy of this Report and Recommendation, Defendant 
must file any written objections to any of the above findings and recommendations on or 
before Wednesday, October 2, at noon, and the government must file any response on 
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or before Friday, October 4, at noon, as provided by the Local Rules for this district.  28 
U.S.C. §636(b)(1); S.D. Fla. Mag. R. 4(b).  The Parties are hereby notified that a failure 
to timely object waives the right to challenge on appeal the district court’s order based on 
unobjected-to factual and legal conclusions contained in this Report and 
Recommendation.  11th Cir. R. 3–1 (2016); see Thomas v. Arn, 474 U.S. 140 (1985). 
DONE and SUBMITTED at Fort Lauderdale, Florida, this 30th day of September 
2024. 
 
 
 
 
 
__________________________________ 
PATRICK M. HUNT  
UNITED STATES MAGISTRATE JUDGE 
Copies furnished to: 
The Honorable Kathleen M. Williams 
The Honorable Donald L. Graham 
All counsel of record 
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