Judgment — United States v. Tracy D. Wade (Dkt. 256, 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. 256 · 2025-04-24 · Docket on CourtListener

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 UNITED STATES DISTRICT COURT 
 SOUTHERN DISTRICT OF FLORIDA 
 CASE NO. 23-60173-CR-GRAHAM 
 
 
UNITED STATES OF AMERICA, 
 
              Plaintiff,
SEPTEMBER 23, 2024 
       vs.                                    
                                          MIAMI, FLORIDA 
TRACY D. WADE and
    
CAROLINE D. WADE,
              PAGES 1-10  
              Defendant.                          
____________________________________/     
 
 
TRANSCRIPT OF TELEPHONIC MOTION HEARING 
BEFORE THE HONORABLE DONALD GRAHAM 
UNITED STATES SENIOR DISTRICT JUDGE 
 
 
 
 
APPEARANCES: 
 
FOR THE GOVERNMENT:    
DAVID SNYDER, AUSA 
ADAM LOVE, AUSA 
Office of U.S. Attorney 
                    
Miami, Florida  33132 
 
 
FOR THE DEFENDANTS:     
JOHNNY LEONARD McCRAY, JR. 
                       
DARYL WILCOX, ESQ. 
                       
Miami, Florida  33130 
 
 
 
 
 
Reported By:           Diane Miller, RMR, CRR, CRC 
   Official Court Reporter 
   United States District Court 
   Southern District of Florida 
                       diane_miller@flsd.uscourts.gov 
Monday, September 23, 2024.
Case 0:23-cr-60173-KMW   Document 256   Entered on FLSD Docket 04/24/2025   Page 1 of 10

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P-R-O-C-E-E-D-I-N-G-S 
THE COURT:  Good afternoon, Counsel.
May I have the deputy call the case, please.
THE COURTROOM DEPUTY:  Calling case United States of
America versus Tracy D. Wade, case number 23-CR-60173.
THE COURT:  Carolyn Wade and Tracy Wade, it's 
23-CR-60173.
State your appearances, please, Counsel.
MR. SNYDER:  Good afternoon, Your Honor.  This is
Assistant U.S. Attorney David Snyder on behalf of the United
States; and I also have, for the Government, Assistant U.S.
Attorney Adam Love.
THE COURT:  Good afternoon.
DEFENSE COUNSEL:  Good afternoon; Judge, Johnny
McCrae on behalf of the Wades.
MR. WILCOX:  Good afternoon; Your Honor, Daryl Wilcox
also on behalf of the Wades.
THE COURT:  Good afternoon all.
So, Counsel, I asked you on short notice to appear
telephonically today because there is a matter that was filed
late last -- I believe it was filed -- I saw it for the first
time on Friday and fully reviewed it today.  I generally like
to issue written orders because time is of the essence.  I felt
it important to let you know my decision on this matter today.
The motion to continue is docketed as docket entry
Monday, September 23, 2024.
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153.  The Court is denying the relief requested, and I'm going
to explain in detail why.
The Defense indicated that the issues raised were
complex and novel issues of law.  I do not find the case
complex nor novel issues of law.
Ms. Carolyn Wade's case was tried previously.  It
was -- it was a five-day trial period in that case.
Codefendant Mr. Wade testified, and I don't recall anything
novel or complex.
I am reminded, however, that repeatedly in defense
motions, there is a reference to the Court giving an Allen
charge.  I command you to look at the Eleventh Circuit pattern
instruction and the case law.  The Court never gave an Allen
charge, so I don't know why the Defense continues to state
that.
The fact of the matter is, the Defense requested that
I not give an Allen charge and cited some cases that I
concurred with the argument of Defense and did not give the
Allen charge.  So please, keep our record clear, and not refer
to the Court having give an Allen charge in the prior case.
In any event, I would like to recount what has
occurred in this case.  On July 30th, a status conference was
scheduled, neither Defense Counsel appeared.  The Court issued
an order [unintelligible due to background noise] for failure
of the Defense to attend.  And generally, the response was
Monday, September 23, 2024.
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inadvertent not calendaring properly, et cetera.  As a result
of the response to the order to show cause, the Court chose to
issue no sanction.
However, at the July 30th hearing, the case was
specially set for October 7th, and the Court indicated that
there would be no extensions given the calendar; and as a
matter of fact, a courtesy copy of the 7/30 status conference
was sent to the Defense Counsel, and the Court further directed
Mr. Snyder, Counsel for the Government, to convey what was
discussed at the status conference, as I stated was conducted
on July 30th.
At the July 30th status conference, the Court was
advised by the Government that it thought the case -- this case
would take about six days, that the Government had five or
fewer witnesses than -- additional witnesses than the original
case.
The Court announced that the case would start on
October 7th; we would not be in session on October 11th; we
would not be in session on October 14th, which is a federal
holiday; so accordingly, we would be in trial the 7th through
the 10th of October, the 15th, the 16th, and possibly the 17th.
I announced that I had a specially set case for
October 21st and that I would definitely like to get this
matter resolved during the time period scheduled.
As the parties know, this is one of the busiest trial
Monday, September 23, 2024.
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districts in the country, not the Eleventh Circuit but in the
United States.  
I conferred with Judge Williams, and she cannot get
to this case as the request for extension is made.  She has a
very, very heavy docket, and I'm assisting her by trying to get
this matter resolved.
We had a second telephonic conference on
October 12th.  All Counsel were present for that -- August
12th.  All Counsel were present for the August 12th telephonic
conference.  There were no objections to the date announced, no
extensions.  Everybody knew that this was about 60 days out and
that we were going to go as [unintelligible due to background
noise].  So frankly, to get a Defense motion to continue, which
is about ten trial days out from October 7th, is a little
frankly disappointing.
You know, you think about the courtesy of the issue.
There is a lot that goes on in trying to get a case set for
trial.  The Government has to get it's witnesses; as a senior
judge, I don't have an assigned court reporter, so I have to
make a request and get that scheduled.  I have to make a
request for a courtroom deputy and get that scheduled.  The
jury section has to be contacted.  I imagine that this case is
similar to the first one, the Government has out-of-town
witnesses who have to make travel plans, et cetera.
As I said, there is just quite a bit involved, and I
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simply don't have the trial days to try the case other than as
scheduled.  So for the reasons stated, the motion is denied and
we will be proceeding on October 7th.  We will be in session
four days to try to insure that I can get this case completed
before the next case on my docket, and so I'm sorry I'm unable
to accommodate you.
I have done everything possible to try to get this
matter tried as scheduled to keep the Defense counsel and the
Government counsel informed of the dates.  I've done that
repeatedly, and I don't have any alternative.
I did check with the magistrate judge who is handling
the motions that were filed by the Defense.  Judge Hunt, I was
advised, is handling the matter personally and has scheduled a
hearing for this Thursday.
I don't know if Counsel had gotten an order on that
as of yet; but just 30 minutes or so ago, we were advised that
he will be conducting a hearing and he will have an order
issued prior to our calendar call which is the following
Tuesday, I believe.
So that's where we are, and I look forward to seeing
you all at the calendar call and next hearing.
There is one matter that's pending that I have not
resolved.  The Government filed a motion to introduce evidence
of other crimes, laws, or acts pursuant to Federal Rule of
Evidence 404(b).  
Monday, September 23, 2024.
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I guess the question I should ask is whether this
motion is timely.  It was filed as docket entry 135 on
August 22nd.  So in accordance with the federal rules which I
think just simply state that you have to give reasonable
notice, but I know our local rules have certain dates for
discovering 404(b) evidence.  So I don't know if a motion is
the first indication of whether Defense was advised previously
what the status is in that regard.  
Mr. Snyder.
MR. SNYDER:  Yes, Your Honor, I can speak to that.
So the evidence that the Government put in its notice
was evidence that the Government had produced in the ordinary
course of discovery to defendant, when it produced discovery
for the superseding indictment.
THE COURT:  All right.  That answers my question.  So
if that's the case, then it is timely.
MR. SNYDER:  Yes.
From the Government's perspective, we did not view it
as a motion so much as a notice under Rule 404(b) that evidence
that we had previously produced, we were going to seek to
introduce under 404(b).
THE COURT:  It doesn't have to be a motion, just
timely notice of the 404(b) information.  And so that you
notify them timely and it sounds like that precedes the 8/22
filing, then that would be a timely notice.
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MR. SNYDER:  Yes.
THE COURT:  So I'll take a look at that and -- how is
it that the Defense intends -- or the Government, I'm sorry,
intends to introduce the 404(b).?  Is it your case in chief 
or --
MR. SNYDER:  Yes.  We intend to call a witness from
the Small Business Administration who is with the Economic
Injury Disaster Loan Program, and that witness will seek to
introduce these records relating to idle loan that Mr. Wade had
submitted prior to submission of PPP loans that are charged in
the superseding indictment, and that witness will provide
testimony, as outlined in the 404(b) notice testimony, about
the idle program and the SBA's receipt of those applications
and what actions it took.
THE COURT:  All right.  All right.  I'll have to take
a closer look at that.
Defense, do you intend to respond because
[unintelligible due to background noise], if it is your desire
to respond to the -- to the original notice that was given in
discovery and on the motion that was filed naturally listed as
a notice.  It is not listed as a motion that it is in effect
[unintelligible due to background noise].
Do you intend to respond to the notice or would you
like to do that at this time or what is your position?
DEFENSE COUNSEL:  Your Honor, our response is end of
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business tomorrow.
THE COURT:  All right, I appreciate that very much.
All right.  Is there anything else we need to discuss
before Tuesday's calendar call?
DEFENSE COUNSEL:  Nothing from the Defense, Judge.
THE COURT:  All right.
All right, Counsel.  Thank you all very much.
MR. SNYDER:  I have a question, Judge -- David
Snyder.  If the Defense is going it respond to the 404(b)
notice tomorrow, is the Court going to permit the Government to
reply, if necessary, or will it just take up the matter and --
THE COURT:  When would you like it -- like the reply;
by Friday at 5:00 o'clock?
MR. SNYDER:  What's tomorrow?
Yeah, to the extent that we need to reply.
THE COURT:  I mean, let's make it Friday at
1:00 o'clock, all right, so that I'll have time take a look at
that before the weekend, and we will be prepared to let you
know what we will be doing in this regard.
All right.  Thank you all very much.  Have a good
afternoon.
MR. SNYDER:  Thank you, Judge.
THE COURT:  Good day, everyone.
(PROCEEDINGS ADJOURNED AT 2:53 p.m.)
Monday, September 23, 2024.
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C-E-R-T-I-F-I-C-A-T-E 
             I hereby certify that the foregoing is 
      an accurate transcription and proceedings in the    
      above-entitled matter. 
4/24/2025
       /s/DIANE MILLER 
 DATE                   DIANE MILLER, RMR, CRR, CRC   
                        Official Court Reporter 
    United States District Court 
Monday, September 23, 2024.
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Case 0:23-cr-60173-KMW   Document 256   Entered on FLSD Docket 04/24/2025   Page 10 of 10

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