Information — United States v. Tracy D. Wade (Dkt. 290, 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. 290 · 2025-08-22 · Docket on CourtListener

Full text

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UNITED STATES DISTRICT COURT 
SOUTHERN DISTRICT OF FLORIDA 
 
UNITED STATES OF AMERICA 
 
 
Plaintiff 
 
 
 
 
 
CASE NO.: 23-CR-60173-2 
vs. 
 
TRACY D. WADE 
 
 
Defendant.  
 
___________________________/ 
 
 
REPLY TO GOVERNMENT RESPONSE TO MOTION TO STAY JAIL 
SENTENCE PENDING APPEAL 
  
Background. 
Tracy D. Wade is set to surrender this upcoming Wednesday, August 27, 2025 
to serve a 90-day jail sentence for PPP loan fraud.  On August 1, 2025, he filed a 
Renewed Motion to Stay Jail Sentence Pending Appeal, discussing the merits of two 
specific issues he intends to raise on appeal. (D.E. 288).  On August 15, 2025, the 
Government filed a Response opposing a stay of the jail sentence pending appeal. 
(D.E. 289).  Mr. Wade, through undersigned counsel, now files his Reply.  He is 
requesting that this Court stay the 90-day jail sentence until the disposition of his 
pending direct appeal.  If he loses the direct appeal, he would have to surrender to 
serve the jail sentence.  If he wins the direct appeal, he would not have to serve the 
jail sentence.  In contrast, if the jail sentence is not stayed he will have to serve it 
regardless of the outcome of the appeal as that will not be known in 90 days. 
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One other factual update is that the initial Appellant’s Brief in the Eleventh 
Circuit Appeal case had been due August 20, 2025, and undersigned counsel moved 
for a 5-day extension until this coming Monday, August 25, 2025.  The Appellant’s 
Brief must and will be filed on Monday. 
 
Argument. 
The first substantive legal issue is that the Court erred by permitting the 
Government to introduce evidence of uncharged loan applications they viewed as 
demonstrating wrongdoing by Mr. Wade, specifically an application for a $700,000 
PPP loan for Wade Funeral Home and applications for EIDL loans that stated the 
funeral home made and spent hundreds of millions of dollars a year when the 
accurate numbers were in the hundreds of thousands.  As discussed in the Renewed 
Motion to Stay, none of these loans resulted in criminal charges and there was no 
evidence adduced that Tracy Wade had anything to do with these applications, in 
contrast to the charged PPP loans where the Government had computer logins and 
other evidence directly linking Mr. Wade to the applications and the defense was 
that he did access and sign the charged loan information which included false 
statements but did not read the information that Government cooperating witness 
Haydee Granados had uploaded which is what was fraudulent.  For the uncharged 
loans, Mr. Wade testified unrebutted that he either had nothing to do with the 
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application (the funeral home PPP loan) or that the errors on it were typos he never 
saw which were corrected with the Government before the loans were properly 
funded based on accurate information, and were being repaid on schedule (the EIDL 
loans). 
The Renewed Motion to Stay argues that this uncharged loan evidence was 
not admissible as 404(b) evidence (which is what this Court consistently ruled, and 
is mainly because there was no evidence, let alone a preponderance, that Mr. Wade 
committed any bad acts with regard to the uncharged loans), was not admissible as 
impeachment evidence (because there was no contrary testimony from Mr. Wade to 
impeach), and were not admissible as 608(b) evidence (mainly because Mr. Wade 
denied the bad conduct the Government was asking about, and the rule requires the 
Government to take that answer and not bring before the jury extrinsic evidence, 
which is exactly what the Government did). (D.E. 288 pp. 18-27). 
The Government’s merits argument is that “Defendant’s knowledge, intent, 
and credibility were central issues in this case” and therefore the uncharged loan 
application evidence “was relevant evidence admissible to impeach Defendant’s 
credibility”. (D.E. 289 p. 9).  But the doctrine of impeachment is not some sort of 
blanket permission to introduce anything that, in the opposing parties view, 
impeaches a witness’s credibility.  The ultimate purpose of impeachment is to 
damage a witness’s credibility in the eyes of the trier of fact, but the substance of 
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impeachment in this context is introducing a prior statement which is inconsistent 
with trial testimony.  See United States v. Frye, 243 Fed. Appx. 575, 576 (11th Cir. 
2007).  If there is no inconsistency between a prior statement and trial testimony, 
there is by definition nothing to impeach and the prior statement cannot be admitted 
for that purpose.  Here, Mr. Wade never testified at trial about these uncharged loans 
at all except when asked by the Government, and then he denied knowledge of them.  
He also never made some blanket statement like “I have never submitted false 
information to the Government” which would be inconsistent with evidence that he 
had done so in some uncharged incident.  The uncharged loans could not have been 
properly admitted for impeachment because there was nothing to impeach.  The 
defense made this argument in their Amended Motion (D.E. 288 pp. 23-24) and the 
Government in their Response still fails to identify any prior statement inconsistent 
with the uncharged loan applications. (D.E. 288 p. 9)  That Mr. Wade testified he 
had “no idea” about the false information on the charged PPP loans, which appears 
to be what the Government suggests was the predicate for impeachment, is not 
inconsistent with any aspect of the uncharged loan applications, and the Government 
cannot and does not make any specific argument that it was. 
The Government’s argument is really a 404(b) argument in disguise—these 
other loans show Mr. Wade was a bad person who had tried to commit similar fraud 
against the Government on other occasions so he probably meant to do so here.  But 
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the 404(b) argument was squarely rejected by this Court at trial, that ruling was never 
modified, and the Government does not try to explicitly argue in their Response that 
this evidence was admissible under 404(b), instead disguising that argument as one 
related to impeachment.  The Court should maintain its prior 404(b) ruling, which 
was correct for multiple reasons (D.E. 288 pp. 19-23), and reject the Government’s 
attempt to substitute 404(b) for the doctrine of impeachment. 
Then the Government argues this uncharged loan evidence was admissible 
pursuant to Rule 608(b), an argument they did not make at trial but which the defense 
anticipated and addressed in the Amended Motion. (D.E. 288 p.24-27, D.E. 289 p. 
9).  The bottom line is this argument fails because, even if this evidence would have 
otherwise been admissible via 608(b) (which the defense does not agree with), it 
clearly was not once Mr. Wade denied knowledge of the uncharged loans or 
responsibility for knowingly submitting any uncharged false statement to the 
government.  “If the witness denies the conduct, such acts may not be proved [under 
608(b)] by extrinsic evidence and the questioning party must take the witness’ 
answer.”  United States v. Garza, 172 Fed. Appx. 983, 989 (11th Cir. 2006).  The 
defense Amended Motion discussed this well-settled rule and how it definitionally 
means 608(b) could not have been used to admit this evidence, since the Government 
introduced the substance of it via extrinsic evidence, their questioning of Mr. Wade 
after he denied knowledge or involvement or having even seen the documents the 
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prosecutor was reading from. (D.E. 288 pp. 25-26).  Despite this provision being 
fatal to their 608(b) argument and discussed in the Amended Motion, the 
Government ignores it in their Response. 
The Government then turns to a harmless error argument. (D.E. 289 pp. 9-10).  
Their view is that the charged loan documents themselves, and their cooperating 
witness Haydee Rivero’s testimony, were enough to demonstrate Mr. Wade would 
have been convicted despite the error in introducing uncharged crime evidence that 
he tried to defraud the government out of hundreds of thousands of dollars of 
additional funds.  The most obvious demonstration that the Government is wrong is 
that they previously tried essentially the same case, but without the uncharged crimes 
evidence, against Carolyn Wade and that trial resulted in a hung jury.  Clearly the 
documentary evidence in this case was not independently sufficient to prove guilt 
beyond a reasonable doubt to any jury, since it was not to one actual jury.  The 
Government has the burden of proving harmless error.  United States v. Sweat, 555 
F.3d 1364, 1367 (11th Cir. 2009)  Only if they can show that the error did not affect 
the outcome of the proceeding or a defendant’s substantial rights can the harmless 
error standard save the Government from the consequences of trial error.  Fed. R. 
Crim. P. 52(a). 
If we are at the harmless error stage, the defense has by definition raised a 
“substantial question of law” and under these facts it is not likely that the Eleventh 
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Circuit would find this error harmless.  18 U.S.C. § 3143(b)(1)(A).  Therefore, this 
Court should grant a stay of the jail sentence and allow the Eleventh Circuit to decide 
this issue without requiring Mr. Wade to serve his jail sentence in advance of that 
decision.  Here the evidence of Mr. Wade’s knowledge of the charged crimes was 
not overwhelming, particularly when the Government’s own witness acknowledged 
she was the one who created and uploaded the primary false document necessary to 
secure the charged PPP loan, and where Mr. Wade testified that although he did log 
in to the application and electronically sign it, he did not independently review it and 
instead relied on Ms. Granados and her husband to complete the application and do 
so accurately and legally.  The Government cannot meet their high burden to benefit 
from a declaration that the error in admitting substantial uncharged crime evidence, 
of conduct far more serious than the charged crime, was harmless. 
The second issue Mr. Wade intends to raise on appeal is that it was error to 
deny a defense request for a good faith jury instruction. (D.E. 288 pp. 28-32).  The 
Government responds that the issue was not preserved for appeal and alternatively 
that it was not an abuse of discretion to deny the good faith instruction. (D.E. 289 
pp. 10-12).   The issue was preserved for appeal.  The defense requested the 
instruction and the Court denied it.  The defense did not raise any additional 
argument when the Court asked if the defense had anything to add the next day.  That 
was not a waiver of the previous request for the good faith instruction.  The 
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Government cites no cases stating that failing to raise additional argument after an 
invitation to do where a requested jury instruction has already been denied is a 
waiver of the issue.  The purpose of preservation is to allow the trial court to rule on 
an issue before claiming error on appeal and asking the appellate court to weigh in.  
That purpose was met here—this Court was aware the defense wanted a good faith 
instruction, and with that awareness, it denied the giving of the instruction 
The failure to give the good faith instruction was an abuse of discretion 
because the good faith instruction is a standard instruction, and the defense put on 
evidence of good faith via Mr. Wade’s testimony that he and his wife relied entirely 
on Ms. Granados and her husband, who recruited them to submit the PPP loans and 
said they could and would take care of everything.  Ms. Granados herself testified 
that she created false documents and submitted them to the Wades application, and 
did not discuss that with the Wades.  The defense was that the Wades had an honest 
belief that Ms. Granados was lawfully completing the PPP applications.  A good 
faith instruction would have told the jury that such an honest belief could not be 
fraudulent intent.  The jury instructions given did not contain this language, which 
was at the heart of the defense.  Therefore the failure to give the good faith 
instruction does qualify as an abuse of discretion. 
 
 
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Conclusion. 
For the foregoing reasons, Mr. Wade respectfully requests that the Court grant 
him permission to remain at liberty pending the disposition of his pending appeal.  
The requirements of 18 U.S.C. § 3143 are satisfied.  Mr. Wade is not any risk of 
flight or danger to the community, and he has legitimate, non-frivolous appellate 
issues.  That the Government has been unable to answer the legal substance of the 
issues, particularly with regard to the uncharged crimes evidence, is dispositive.  It 
is likely the Government will similarly be unable to produce a valid basis for the 
admission of the uncharged crime evidence on appeal, and therefore that the 
Eleventh Circuit will reverse.  This Court should allow Tracy Wade to remain at 
liberty in the community, taking care of his daughter, being a partner to his wife, 
running his business, and otherwise contributing to the lives and well-being of those 
around him.  If Mr. Wade loses his appeal, he will have to serve the 90-day sentence.  
There is no reason to make him serve it before the Eleventh Circuit rules given that 
valid, non-frivolous issues are being raised on appeal and that he is no danger to the 
community and poses no risk of flight. 
 
 
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Respectfully submitted, 
 
 
 
 
 
 
 
 
 
 
 
 
 
s/ Daniel Tibbitt______ 
 
 
 
 
 
 
 
 
DANIEL J. TIBBITT, P.A. 
 
 
 
 
 
 
 
 
FL Bar No. 816361 
 
 
 
 
 
 
 
 
1175 NE 125th Street 
 
 
 
 
 
 
 
 
Suite 404 
 
 
 
 
 
 
 
 
North Miami, FL 33161 
 
 
 
 
 
 
 
 
(305) 384-6160  
 
 
 
 
 
 
 
 
dan@tibbittlaw.com 
 
 
CERTIFICATE OF SERVICE 
 
I hereby certify that on this 22nd day of August, 2025, I electronically filed 
the foregoing with the Clerk of Court for the Southern District of Florida using the 
CM/ECF system, and served a copy on counsel for the government, Assistant United 
States Attorney David Snider, as well as all persons registered for electronic service 
through the CM/ECF system. 
 
s/ Daniel Tibbitt______ 
 
 
 
 
 
 
 
 
Daniel Tibbitt 
 
 
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