Court filing
Indictment - United States v. Tracy and Carolyn Wade
Record facts
| Court | U.S. District Court for the Southern District of Florida |
|---|---|
| Filed | 2024-05-17 |
U.S. District Court for the Southern District of Florida · No. 0:23-cr-60173-KMW · Doc. 66 · 2024-05-17 · Docket on CourtListener
Summary
Defendant Carolyn D. Wade's supplemental authorities in support of her motion to dismiss due to prosecutorial misconduct, in United States of America v. Carolyn D. Wade, No. 0:23-cr-60173-KMW, in the U.S. District Court for the Southern District of Florida, entered on the docket May 17, 2024 as Document 66. The filing argues that a district court may dismiss an indictment where the government substantially interferes with a defense witness, citing the Sixth Amendment right to compulsory process and the Fifth Amendment right to due process. It cites United States v. Holloway (11th Cir. 1985) and other cases for the position that an evidentiary hearing is required before ruling. The filing asks for a pretrial evidentiary hearing and dismissal of the indictment with prejudice, and is signed by defense counsel Johnny L. McCray, Jr.
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UNITED STATES DISTRICT COURT
SOUTHER DISTRICT
CASE No. 23-cr-60173 (Graham)
UNITED STATES OF AMERICA,
Plaintiff,
v.
CAROLYN D. WADE,
Defendant.
____________________________/
DEFENDANT WADE’S SUPPLEMENTAL AUTHORITIES IN
SUPPORT OF MOTION TO DISMISS DUE TO PROSECUTORIAL MISCONDUCT
The Defendant, CAROLYN D. WADE, files this her Supplemental Authorities in
Support of Motion to Dismiss Due to Prosecutorial Misconduct, as follows:
Legal Standard
I. This Court Has The Authority To Dismiss The Indictment Based On The Government's
Substantial Interference With A Defense Witness.
A district court is empowered to dismiss an indictment upon a finding of certain
constitutional violations. See, e.g., United States v. Caruto, 663 F. 3d 394, 397 (9th Cir,
2010);
and United States, Linder, 2013 WK 812382, No. 12r22 (N.D. Ill. March 5, 2013). The
constitutional provisions at issue in this case are the Sixth Amendment right to
compulsory process and the Fifth Amendment right to due process of law.
To warrant dismissal of the indictment for these violations, “[t]he defendant bears
Case 0:23-cr-60173-KMW Document 66 Entered on FLSD Docket 05/17/2024 Page 1 of 4
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the burden of proving that the government's conduct interfered substantially with a
witness's free and unhampered choice to testify.” Linder, 2013 WL 81238 (citation and
internal quotations omitted). “Even if the defendant can satisfy his burden of proving that
the government substantially interfered with a witness's decision to cooperate with the
defendant, there can be no constitutional violation unless the defendant can also make
some plausible showing that the witness's testimony would have been both material and
favorable to the defendant; in other words, that the defendant suffered prejudice as a
result of the witness's choice not to cooperate with the defendant.” Id. (citing United
States v. Valenzuela-Bernal, 458 U.S. 858, 867 (1982)).
II. An Evidentiary Hearing Is Required To Determine Whether Dismissal Of The Indictment
Is Required.
There is substantial precedent for resolving this due process question pretrial.
Various courts, including the Eleventh Circuit, have considered the question when it was
raised pursuant to a defendant's pre-trial motion to dismiss and have found that it
requires an evidentiary hearing. See, e.g., In United States v. Holloway, 778 F. 2d 653, 658
(11th Cir. 1985), the Eleventh Circuit stated “the showing required to entitle a defendant
to a hearing… is that if defendants ‘raise a material fact which, if resolved in accordance
with the defendants’ contentions, would entitle them to relief, they would be entitled to a
hearing. ‘“(citation omitted). See also, United States v. Roach, 502 F. 3d 425 (6th Cir. 2007).
At that hearing, defendant bears the burden of proving, based upon a preponderance of
the evidence, that dismissal of the indictment is warranted. See, e.g.,United States v.
Case 0:23-cr-60173-KMW Document 66 Entered on FLSD Docket 05/17/2024 Page 2 of 4
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Vavages, 151 F. 3d 1185, 1188 (9th Cir. 1998). Upon a finding of substantial interference
with a favorable, material defense witness, this Court should dismiss the indictment:
Government interference with potential defense witnesses requires dismissal of an
indictment where a substantial right of the defendant has been jeopardized, such as the
right to due process of law secured by the Fifth Amendment or the right to compulsory
process of defense witnesses secured by the Sixth Amendment. See United States v.
Wilson, 715 F. 2d 1164, 1169 (7th Cir. 1169). The Court should hold an evidentiary hearing
to determine if such a right has indeed been jeopardized when the defendant provides
sufficient facts of misconduct to justify the basis for a meaningful evidentiary hearing. See
Id. United States v. Linder, 2012 WL 3264924 (N.D. Ill 2012).
As discussed herein, Ms. Wade has set forth sufficient facts concerning the
government's interference with crucial and singularly important, defense witnesses, Mr.
Eduardo Rivero and Haydee Granados, his wife, to justify a pretrial evidentiary hearing to
determine the facts and that, upon such hearing, this Court should dismiss the indictment
with prejudice.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on May 17, 2024, I electronically filed the
foregoing 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 counsel or parties who are not
Case 0:23-cr-60173-KMW Document 66 Entered on FLSD Docket 05/17/2024 Page 3 of 4
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authorized to receive electronic Notices of Electronic Filing, on this 16th day of
May, 2024.
/s/ Johnny L. McCray, Esq.
_____________________________
Johnny L. McCray, Jr., Esq.
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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