Court filing
Information — United States v. Tracy D. Wade (Dkt. 108, S.D. Fla. No. 0:23-cr-60173)
Filed July 24, 2024 in United States v. Tracy D. Wade; one of 133 filings from this case.
Record facts
| Court | U.S. District Court for the Southern District of Florida |
|---|---|
| Filed | 2024-07-24 |
U.S. District Court for the Southern District of Florida · No. 0:23-cr-60173-KMW · Doc. 108 · 2024-07-24 · Docket on CourtListener
Full text
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 23-60173-CR-WILLIAMS(s)
UNITED STATES OF AMERICA
vs.
CAROLYN DENISE WADE and
TRACY D. WADE,
Defendants.
/
MEMORANDUM IN CONNECTION WITH RULE 44(c) GARCIA HEARING
Introduction
The United States of America, by and through its undersigned counsel, hereby submits this
memorandum (the “Memorandum”) in connection with the Rule 44(c) Garcia hearing held on July
15, 2024, as to Defendants Carolyn Denise Wade and Trade D. Wade (each a “Defendant,” and
collectively, “Defendants”). The purpose of the Memorandum is to supplement the record of the
Garcia hearing with facts and analysis that, in the government’s view, may be necessary for
Defendants to consider (in addition to any facts and analysis addressed at the Garcia hearing) for
them to be fully informed of any potential or actual conflict of interest arising from the proposed
joint representation, and by extension, to make any waiver of conflict-free counsel knowingly,
intelligently, and voluntarily. Relevant authority is also supplied to aid the Court in its finding as
to the validity of any such waiver by Defendants. The government does not take a position on the
propriety of the proposed joint representation, the ability of either Defendant to waive any potential
or actual conflict of interest arising from the proposed joint representation, or whether the Court
should accept such a waiver by either Defendant.
Case 0:23-cr-60173-KMW Document 108 Entered on FLSD Docket 07/24/2024 Page 1 of 12
2
Relevant Factual and Procedural History
A.
Indictment and Trial of Defendant Carolyn Wade
On September 14, 2023, a grand jury sitting in the Fort Lauderdale Division of this Court
(the “Grand Jury”) returned an indictment (ECF No. 3) (the “Indictment”) charging Defendant
Carolyn Wade with one count of wire fraud, in violation of Tile 18, United States Code, Section
1343. In sum, the Indictment alleged that, from May 2021 through August 2021, Carolyn Wade,
then employed by the Broward Sheriff’s Office (BSO) as a Deputy Sherriff in the Detention
Department, participated in a scheme to defraud involving materially false information that she
used to apply for, receive, and cause the forgiveness of, a loan through the Small Business
Administration (SBA)’s Paycheck Protection Program (“PPP”). Such materially false
information allegedly included, among other things, that a sole proprietorship having the business
legal name “Carolyn Wade” earned “$113,560” of gross income in 2019.
Carolyn Wade pleaded not guilty and proceeded to a jury trial. The trial commenced on
May 13, 2024, in the Miami Division before Senior United States District Judge Donald L. Graham
(to whom Judge Williams, the assigned district judge, referred the case for trial). In its case-in-
chief, the government called 10 witnesses, which included witnesses from the SBA, a PPP loan
processor, a PPP lender, an identity verification service provider, two communications service
providers, the Internal Revenue Service (IRS), BSO, and FBI. Through the testimony of these
witnesses and stipulations between the parties, the government introduced documentary evidence
marked and received as 90 separate exhibits (ECF No. 75-1). The government argued at trial that
this evidence established the following facts, among others:
i.
Carolyn Wade filed an individual income tax return with the IRS for the year 2019,
which reported (on Form 1040, Schedule C) that a sole proprietorship business
Case 0:23-cr-60173-KMW Document 108 Entered on FLSD Docket 07/24/2024 Page 2 of 12
3
named “1 Step A-Head” had $6,800 in gross income for that taxable period. GX
201. No tax return filed by Carolyn Wade between 2018 and 2020 reported any
income for a business named “Carolyn Wade,” much less “$113,560” in such gross
income for 2019 (or any other year). GXs 200-203.
ii.
Carolyn Wade’s online PPP loan application was created on May 4, 2021, at
approximately 3:27 p.m. EDT, from an IP address ending in .166. The .166 IP
address was then owned by AT&T and assigned to Wade Funeral Home, the
business owned and operated by Carolyn Wade’s husband, Tracy Wade. GXs
102.2e, 601. The .166 IP address assigned to Wade Funeral Home was used on
several occasions to perform online activity related to Carolyn Wade’s PPP loan
application, including, among other things: (1) logging in to Carolyn Wade’s PPP
loan application account; (2) inputting information into Carolyn Wade’s PPP loan
application, including the name “Carolyn Wade” as the business legal name; (3)
uploading a bank account statement and linking a bank account; and (4) submitting
Carolyn Wade’s PPP loan application on May 13, 2021, at approximately 9:23 a.m.
EDT (GX 102.2e).
iii.
Before Carolyn Wade’s PPP loan application was submitted, a fictitious Schedule
C form was uploaded to Carolyn Wade’s online PPP loan application at
approximately 8:59 a.m. EDT on May 13, from an IP address ending in .125. GXs
113, 102.1e. The .125 IP address was attributable to Haydee Rivero, f/k/a Haydee
Granados (“Granados”). GX 002. This fictitious Schedule C purported to show
that a business named “Carolyn Wade” had gross income of “$113,560” in 2019.
GX 113.
iv.
Throughout Carolyn Wade’s PPP loan application process, additional online
activity was performed by IP addresses attributable to Carolyn Wade. This
included IP addresses ending in .184, .224, .127, and .200, which were owned by
Verizon Wireless, then Carolyn Wade’s cell phone service provider (GX 805), and
IP address ending in .84, which was owned by AT&T and then assigned Carolyn
and Tracy Wade’s primary residence (GX 600). The online activity related to
Carolyn Wade’s PPP loan application that was performed using these IP addresses
included, among other things: (1) logging into Carolyn Wade’s online PPP loan
application account on at least 9 occasions between May 13, 2021 and July 26,
2021; (2) uploading 3 bank statements and linking a bank account; (3) verifying
Carolyn Wade’s identity using a real-time selfie photograph of Carolyn Wade,
taken with her Samsung Galaxy Note 20 cell phone, and pictures of the front and
back of her Florida driver’s license; (4) modifying the address of record in the PPP
loan application; (5) signing two PPP loan applications via DocuSign on May 18,
2021 and May 28, 2021, respectively; and (6) signing a PPP loan forgiveness
application via DocuSign on August 7, 2021.
Case 0:23-cr-60173-KMW Document 108 Entered on FLSD Docket 07/24/2024 Page 3 of 12
4
v.
On June 7, 2021, a USAA bank joint checking account ending x3926 in the name
of Carolyn and Tracy Wade received the proceeds of Carolyn Wade’s PPP loan in
the amount of $20,833. GX 302. That same day, a Zelle payment in the amount
of $1,000 was sent from the x3926 account to Granados. GX 302. On or about
June 9, 2021, Carolyn Wade wrote and signed check number 1134 from the x3926
account payable to “Jersey City Group,” a company associated with Granados’
husband, in the amount of $4,000, with the memo “Equipment Restoration.”
vi.
Between approximately June 8, 2021 and July 15, 2021, Carolyn Wade wrote and
signed 6 checks payable to her herself (which she endorsed) and 4 checks payable
to Tracy Wade (which he endorsed), in amounts varying between $500 and $2,400,
totaling $13,900. For all 10 checks, Carolyn Wade wrote the word “salary” in the
memo. Bank records from the x3926 account and other accounts owned by
Carolyn and/or Tracy Wade showed that no such similar “salary” checks had been
written before receipt of the PPP loan proceeds, and no such similar checks were
written after July 15, 2021.
After the government rested, the Court heard and denied the defense’s motion for a
judgment of acquittal pursuant to Rule 29. The defense then elected to present a case in which
one witness testified: Tracy Wade. Mr. Wade did not dispute the false statements in Carolyn
Wade’s PPP application concerning the purported 2019 gross income of “$113,560” for a business
purportedly named “Carolyn Wade.” Indeed, Mr. Wade conceded during cross examination that
there was no business having the legal name “Carolyn Wade” and that Carolyn Wade did not have
any business that earned gross income of $113,560 in 2019. Tr. at 88.1 The defense instead
asserted that Carolyn Wade lacked the requisite knowledge and intent to defraud. To support this
theory, Mr. Wade testified that he was more involved than Carolyn Wade regarding her PPP loan
application. For example, in pertinent part, Mr. Wade’s testified:
He (Mr. Wade) presented the idea of a PPP loan to Carolyn Wade (Tr. at 17-18);
He (Mr. Wade), not Carolyn Wade, was in touch with Granados and her husband about
Carolyn Wade’s PPP application process (Tr. at 20);
1 Excerpts of the transcript of Tracy Wade’s trial testimony on May 17, 2024 cited herein are filed herewith
as an attachment to the Memorandum.
Case 0:23-cr-60173-KMW Document 108 Entered on FLSD Docket 07/24/2024 Page 4 of 12
5
As compared with Carolyn Wade, Tracy Wade was “most active” with regard to
Carolyn Wade’s PPP loan application (Tr. at 32);
He (Mr. Wade), not Carolyn Wade, sent information and documents to Granados for
Carolyn Wade’s PPP loan application (Tr. at 111-112); and
He (Mr. Wade) accessed Carolyn Wade’s PPP loan application from Wade Funeral
Home using a computer and the IP address ending in .166 (Tr. at 77-78).
Following Mr. Wade’s testimony, the defense rested and renewed its motion under Rule
29, which the Court denied. On May 20, 2024, the parties presented closing arguments, the Court
instructed the jury, and the jury began to deliberate. After deliberating on May 20 and May 21,
the jury advised the Court that it was unable to reach a unanimous decision. Judge Graham
declared a mistrial on May 21, 2024.
B.
Superseding Indictment of Defendants Carolyn Wade and Tracy Wade
On June 27, 2024, the Grand Jury returned a superseding indictment (ECF No. 88) (the
“SS Indictment”). The SS Indictment added Tracy Wade as a new defendant and the following
new charges: conspiracy to commit wire fraud, in violation of Tile 18, United States Code, Section
1349 (as to both Defendants); wire fraud, in violation of Tile 18, United States Code, Section 1343
(a new count as to Tracy Wade); conspiracy to make false statements to the SBA, in violation of
Tile 18, United States Code, Section 371 (as to both Defendants); and false statements to the SBA,
in violation of Title 15, Untied States Code, Section 645(a) (as to both Defendants).
With respect to the conspiracy to commit wire fraud (Count 1), the SS Indictment alleged
that Carolyn Wade and Tracy Wade agreed with each other, with Granados, and with others, to
obtain PPP loans based on materially false and fraudulent information, including false and
fictitious tax documents. The substantive wire fraud counts charged Tracy Wade with causing
his own fraudulent PPP loan (Count 2) and charged Tracy Wade and Carolyn Wade with causing
Case 0:23-cr-60173-KMW Document 108 Entered on FLSD Docket 07/24/2024 Page 5 of 12
6
Carolyn Wade’s fraudulent PPP loan (Count 3). The conspiracy to make false statements to the
SBA (Count 4) alleged that Carolyn Wade and Tracy Wade agreed with each other, with Granados,
and with others, to make false statements to the SBA in PPP loan applications (SBA Form 2483-
C) and SBA PPP loan forgiveness applications (SBA Form 3508S). Carolyn Wade and Tracy
Wade were each charged individually with three counts of making false statements to the SBA in
their respective PPP loan applications and forgiveness applications (Counts 5, 8, and 9 as to
Carolyn Wade and Counts 6, 7, and 10 as to Tracy Wade).
C.
Proposed Joint Representation and Garcia Hearing
On July 1, 2024, Defendant Tracy Wade made an initial appearance in the Fort Lauderdale
Division as to the SS Indictment. Attorneys Johnny McCray and Daryl Wilcox, who are
permanent counsel of record for Carolyn Wade in this matter and represented her at trial, each
entered a temporary notice of appearance for Tracy Wade (ECF Nos. 95 and 96). After setting
bond, the Court set a Garcia hearing pursuant to Rule 44(c) for July 15, 2024.
On July 15, United States Magistrate Judge Jared M. Strauss conducted a Garcia hearing
outside the presence of the government. At the conclusion of the hearing, Judge Strauss reserved
final ruling on acceptance of Defendants’ waiver of conflict-free counsel to permit the government
to submit a memorandum and/or proffer to supplement the record concerning any potential or
actual conflict arising from the proposed joint representation of Defendants in this matter by Mr.
McCray and Mr. Wilcox. On July 16, 2024, the Court granted the government’s unopposed
motion for an extension until July 24, 2024, to file its memorandum so that the government could
obtain the transcript of Mr. Wade’s trial testimony, review it, and incorporate any pertinent facts
therein (ECF Nos. 104, 105).
Case 0:23-cr-60173-KMW Document 108 Entered on FLSD Docket 07/24/2024 Page 6 of 12
7
Applicable Law
The Sixth Amendment to the United States Constitution guarantees each criminal
defendant the right to assistance of counsel in all criminal prosecutions. This right includes the
accused’s ability to select the counsel of his or her choice. United States v. Ross, 33 F.3d 1507,
1522 (11th Cir. 1994) (citing Powell v. Alabama, 287 U.S. 45, 53 (1932)). However, “[w]hen an
actual conflict of interest exists, the client is denied effective assistance of counsel, and the attorney
may be disqualified.” Ross, 33 F.3d at 1523 (internal citations omitted). Indeed, even a potential
conflict can suffice for disqualification. Id. (citing cases).
A criminal defendant may waive this protection and elect to proceed with conflicted
counsel so long as his waiver is “knowing, intelligent, and voluntary.” Id. at 1524. To ascertain
whether a defendant has elected to waive a conflict and is fully informed of his rights and the
nature of any conflicts beforehand, a district court must hold a hearing as follows:
[T]he district court should address each defendant personally and forthrightly
advise him of the potential dangers of representation by counsel with a conflict of
interest. The defendant must be at liberty to question the district court as to the
nature and consequences of his legal representation. Most significantly, the court
should seek to elicit a narrative response from each defendant that he has been
advised of his right to effective representation, that he understands the details of his
attorney’s possible conflict of interest and the potential perils of such a conflict,
that he has discussed the matter with his attorney or if he wishes with outside
counsel, and that he voluntarily waives his Sixth Amendment protections. Cf.
United States v. Foster, 469 F.2d 1 (1st Cir. 1972). It is, of course, vital that the
waiver be established by “clear, unequivocal, and unambiguous language.
United States v. Garcia, 517 F.2d 272, 278 (5th Cir. 1975), abrogated by Flanagan v. United States,
465 U.S. 259, 104 S. Ct. 1051, 79 L. Ed. 2d 288 (1984).
The Eleventh Circuit has further explained that, “[i]n order for a waiver of the right to
conflict-free counsel to be knowing and intelligent, the State must show that the defendant (1) was
Case 0:23-cr-60173-KMW Document 108 Entered on FLSD Docket 07/24/2024 Page 7 of 12
8
aware that a conflict of interest existed; (2) realized the consequences to his defense that continuing
with counsel under the onus of a conflict could have; and (3) was aware of his right to obtain other
counsel.” United States v. Garcia, 447 F.3d 1327, 1337 (11th Cir. 2006) (quoting Zuck v.
Alabama, 588 F.2d 436, 440 (5th Cir.1979).
Although a criminal defendant “has a presumptive right to counsel of choice and courts
should hesitate to disqualify defense counsel,” Ross, 33 F.3d at 1522-23 (citing Wheat v. United
States, 486 U.S. 153, 163 (1988)), a court need not accept a waiver of the right. See Wheat, 486
U.S. at 162 (holding that trial courts may refuse waivers of conflicts of interest to ensure adequacy
of representation, to protect integrity of court, and to preserve trial judge's interest to be free from
future attacks over adequacy of waiver and fairness of trial). In addition:
Federal courts have an independent interest in ensuring that criminal trials are
conducted within the ethical standards of the profession and that legal proceedings
appear fair to all who observe them.... Not only the interest of a criminal defendant
but the institutional interest in the rendition of just verdicts in criminal cases may
be jeopardized by unregulated multiple representation.
Ross, 33 F.3d at 1524 (quoting Wheat, 486 U.S. at 160).
Analysis of Potential and/or Actual Conflicts
As explained below, the proposed joint representation of Defendants Carolyn Wade and
Tracy Wade at trial on the SS Indictment, by the same attorneys who represented Carolyn Wade
individually at trial on the Indictment, presents potential and/or actual conflicts of interest.2 To
the extent that Defendants have not already considered or otherwise been advised of the conflicts
addressed herein, the government provides the following analysis to brief the Court and
Defendants on such potential or actual conflicts prior to the Court making a finding as to whether
2 Mr. McCray and Mr. Wilcox have each filed a permanent notice of appearance as counsel of record for
Defendants Carolyn Wade and Tracy Wade for trial on the SS Indictment (ECF Nos. 102 and 107).
Case 0:23-cr-60173-KMW Document 108 Entered on FLSD Docket 07/24/2024 Page 8 of 12
9
each Defendant’s waiver of conflict-free counsel is knowing, intelligent, and voluntary under
Eleventh Circuit case law.
As to Tracy Wade’s interest, the duty of loyalty that the attorneys have to Carolyn Wade
is potentially (if not actually) adverse to his interest as an indicted Defendant and alleged co-
conspirator and co-schemer with Carolyn Wade, Granados, and others. For example, in the first
trial, it can be gleaned from the record that counsel determined it was in Carolyn Wade’s interest
to have Tracy Wade testify on her behalf. As outlined above, Tracy Wade’s testimony sought to
distance Carolyn Wade from the PPP loan application process by establishing that Tracy Wade
was more involved in the PPP loan application process than she was. This included testimony by
Tracy Wade that he presented the idea of a PPP loan to Carolyn Wade (Tr. at 17-18),
communicated with Granados and her husband about Carolyn Wade’s PPP loan application
process (Tr. at 20), sent information to Granados for Carolyn Wade (Tr. at 111-112), and accessed
Carolyn Wade’s PPP loan application from Wade Funeral Home (Tr. at 77-78), among other
things. Indeed, as the government argued at trial, Tracy Wade’s involvement in Carolyn Wade’s
PPP loan application was corroborated by electronic records admitted into evidence that showed,
through IP address and other attributions, that Tracy Wade completed parts of Carolyn Wade’s
PPP loan application from Wade Funeral Home, and that Tracy Wade submitted Carolyn Wade’s
PPP loan application minutes after Granados uploaded the fictitious Schedule C tax document
(GXs 102.1e, 102.2e).
Adopting this defense strategy at trial on the SS Indictment may still be in Carolyn Wade’s
interest, and if counsel makes that determination, the duty of loyalty owed to Carolyn Wade may
compel counsel to advise Tracy Wade that he should testify again. However, such advice
Case 0:23-cr-60173-KMW Document 108 Entered on FLSD Docket 07/24/2024 Page 9 of 12
10
rendered for the benefit of Carolyn Wade is potentially (if not actually) adverse to Tracy Wade’s
interest and right to remain silent now that he is charged with conspiring to fraudulently obtain
PPP loans (including loans for himself and Carolyn Wade), obtaining and intending to obtain
fraudulent PPP loans (including loans for himself and Carolyn Wade), and conspiring to make and
making false statements to the SBA as it relates to such PPP loans. On the other hand, if counsel
determines that it is in Tracy Wade’s best interest to abandon the defense strategy from the first
trial and not testify again, providing such legal advice to Tracy Wade is potentially (if not actually)
adverse to Carolyn Wade’s interest in pursuing the defense strategy that she followed in the first
trial. Indeed, because Tracy Wade is now alleged to be her co-conspirator, Carolyn Wade’s
interest in pursuing a “shifting of blame” defense may be even greater in the second trial. This
conflict could be exacerbated by the fact that the government intends to introduce evidence that,
in furtherance of the conspiracies to commit wire fraud and make false statements to the SBA,
Tracy Wade conspired to obtain another PPP loan in the amount of approximately $701,873 for
Wade Funeral Home. Any interest by Carolyn Wade in separating herself from Tracy Wade’s
involvement in this aspect of the conspiracy could be hindered, if not precluded, by a joint
representation.
As to Carolyn Wade, the duty of loyalty that her attorneys would owe Tracy Wade if jointly
represented may be potentially (if not actually) adverse to Carolyn Wade’s interest in other
respects. For example, Carolyn Wade exercised her right to remain silent at the first trial and not
testify. In evaluating Tracy Wade’s defense strategy, counsel may determine that it is in Tracy
Wade’s interest for Carolyn Wade to testify on his behalf at trial. However, advising Carolyn
Case 0:23-cr-60173-KMW Document 108 Entered on FLSD Docket 07/24/2024 Page 10 of 12
11
Wade to testify for the benefit of her husband’s defense may be adverse to her interest in remaining
silent.
Finally, on July 1, 2024, Granados was charged by way of Information with conspiracy to
commit wire fraud and make false statements to the SBA, in violation of Title 18, United States
Code, Section 371 (Case No. 24-CR-60124-Smith). The Information alleges that Granados
conspired with Carolyn Wade and Tracy Wade to commit these offenses, and the government
anticipates Haydee Granados will plead guilty to the Information and cooperate with the
government. As part of her cooperation, the government anticipates that Granados will testify as
a witness for the government at the trial of Carolyn Wade and Tracy Wade. If she does, her
testimony has the potential for the joint representation of Carolyn Wade and Tracy Wade to create
another conflict. For example, out of the duty of loyalty to Carolyn Wade, the defense may focus
its cross examination of Granados on the fact that Granados had little contact with Carolyn Wade
and extensive contact with Tracy Wade throughout the PPP loan application process. While
taking this approach may align with Carolyn Wade’s interest, highlighting the contact between
Granados and Tracy Wade for Carolyn Wade’s benefit could be adverse to Tracy Wade’s interest.
Conversely, if the defense chose not to focus its cross examination on the extensive contact
between Tracy Wade and Granados to serve Tracy Wade’s interest, that decision may not align
with the best strategic choice for Carolyn Wade.
Case 0:23-cr-60173-KMW Document 108 Entered on FLSD Docket 07/24/2024 Page 11 of 12
12
Conclusion
The United States does not take a position on the propriety of the proposed joint
representation, the ability of either Defendant to waive any potential or actual conflict of interest
arising from the proposed joint representation, or whether the Court should accept such a waiver
by either Defendant. Rather, the government submits this Memorandum only to supplement the
record of the July 15, 2024 Garcia hearing with facts and analysis that may be necessary for
Defendants to consider (in addition to any facts and analysis addressed at the Garcia hearing) to
be fully informed of any potential or actual conflict of interest arising from the proposed joint
representation, and by extension, to make any waiver of conflict-free counsel knowingly,
intelligently, and voluntarily consistent with Eleventh Circuit caselaw.
Respectfully submitted,
MARKENZY LAPOINTE
UNITED STATES ATTORNEY
By: /s/ David A. Snider
David A. Snider
Assistant United States Attorney
Court ID No. A5502260
500 E. Broward Blvd
Fort Lauderdale, FL 33394
Tel: (954) 660-5696
Fax: (954) 356-7336
Email: david.snider@usdoj.gov
Case 0:23-cr-60173-KMW Document 108 Entered on FLSD Docket 07/24/2024 Page 12 of 12File and source
- File
- gov.uscourts.flsd.670191.108.0.pdf
- Size
- 209,006 bytes
- SHA-256
- cfe028691b0efd71898ebe52c7c2d4c7ff35c03cc0349f33b9289ecbcb37851f
- Original
- PACER (login required)