Indictment — United States v. Tracy D. Wade (Dkt. 116, 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. 116 · 2024-07-25 · Docket on CourtListener

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UNITED STATES DISTRICT COURT 
SOUTHERN DISTRICT OF FLORIDA 
 
Case No. 23-cr-60173-CR-WILLIAMS 
 
UNITED STATES OF AMERICA, 
 
 
 
Plaintiff, 
 
 
 
 
 
v. 
 
 
 
 
 
 
 
 
 
 
 
CAROLYN DENISE WADE, and 
TRACY D. WADE,   
 
 
 
 
 
 
 
Defendants. 
____________________________/ 
ORDER 
 
THIS CAUSE is before the Court on the Government’s ore tenus Motion for Garcia 
Hearing [DE 113].  At issue is whether attorneys Daryl Elliott Wilcox and Johnny Leonard 
McCray, Jr. will be permitted to represent Defendant Tracy D. Wade (“Tracy” or “Mr. Wade”)1 
while also representing Defendant Carolyn Denise Wade (“Carolyn” or “Ms. Wade”) in the same 
case.  The undersigned conducted a Garcia hearing on July 15, 2024 when Mr. Wilcox sought to 
enter a permanent appearance (for himself and Mr. McCray) on behalf of Mr. Wade.  As 
discussed below, the Government’s Motion for a Garcia hearing is GRANTED.  However, 
based on the representations and responses from Defendants and their counsel at the Garcia 
hearing (as discussed more fully below), I find that both Defendants have knowingly, 
intelligently, and voluntarily waived their rights to conflict-free counsel and that Mr. Wilcox and 
Mr. McCray may continue to represent both Defendants.         
This case is a prosecution for conspiracy, wire fraud, and false statements to the Small 
Business Administration based on the Defendants’ alleged misrepresentations in obtaining loans 
 
1 Because the Defendants have the same last name, in this Order I refer to them by their first names for clarity’s 
sake.  During the Garcia hearing, I addressed Tracy Wade as “Mr. Wade” and Carolyn Wade as “Ms. Wade.” 
AT
Jul 25, 2024
FTL
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under the Paycheck Protection Program.  [DE 88].  Tracy and Carolyn are husband and wife.  
The Government initially obtained an Indictment, in September 2023, charging only Carolyn 
with one count of wire fraud.  [DE 3].  Although Carolyn had initially retained a different 
attorney [DE 10], on February 21, 2024, the Court granted her Unopposed Motion for 
Substitution of Counsel, substituting Mr. McCray for Carolyn’s original counsel.  [DE 24].  Mr. 
Wilcox then joined Mr. McCray, entering an appearance for Carolyn on May 7, 2024.  [DE 56].  
Carolyn proceeded to a trial before Judge Graham, which ended in a mistrial after the jury failed 
to reach a unanimous verdict.  [DE 72].  During the trial, Carolyn called Tracy as a witness in her 
defense.  [DE 67, 106]. 
The Sixth Amendment’s guarantee of a criminal defendant’s right to counsel balances 
two competing interests: “(1) the right to be represented by counsel of choice and (2) the right to 
a defense conducted by an attorney who is free of conflicts of interest.”  United States v. Ross, 33 
F. 3d 1507, 1523 (11th Cir. 1994).  There is a presumption in favor of a defendant’s counsel of 
choice, and a court should only override that presumption and exercise its right to disqualify 
counsel when there is either an actual or a “serious potential conflict of interest.”  Wheat v. 
United States, 486 U.S. 153, 164 (1988).  However, potential conflicts may be waived, and the 
Court has “substantial latitude” in its decision to accept such a waiver.  Wheat, 486 U.S. at 163.  
A “waiver is effective if the defendant ‘understands the details of his attorney’s possible conflict 
and the potential perils of such conflict.’” In re Paradyne Corp., 803 F. 2d 604, 611 (11th Cir. 
1986) (quoting Garcia, 517 F.2d at 278).  Moreover, the waiver is effective if the defendant 
understands “both that [his] representation might be adversely affected in certain ways and that 
[he has] the right to counsel unimpaired by any conflict.”  Id. 
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Pursuant to the Government’s motion, I conducted a hearing to determine whether the 
proposed joint representation is permissible under Federal Rule of Criminal Procedure 44(c) and 
the principles set forth in United States v. Garcia, 517 F.2d 272 (5th Cir. 1975).  At the outset of 
the hearing, I excused the Government from the courtroom.  I then determined that both Tracy 
and Carolyn were competent to participate in the Garcia hearing.  In determining that they were 
both competent, I considered the content of their answers to my questions, my observations of 
them while answering those questions, and the fact that Mr. Wilcox stated he had no reason to 
believe either Defendant was incompetent to proceed.   
I advised both Tracy and Carolyn about the potential conflicts created by having Mr. 
McCray and Mr. Wilcox represent both Defendants.  This colloquy included specific examples 
of actual and potential conflict-related problems that could arise during trial and sentencing.  
Specifically, I discussed with Defendants issues related to privileged communications, 
cooperation, blame-shifting, limitations on cross-examination, plea negotiations, and sentencing 
arguments.  In light of the fact that Tracy had testified in support of Carolyn’s defense at her 
May 2024 trial, and my understanding of the nature of that testimony based on questions asked 
during the July 15 hearing, I also specifically addressed potential conflicts that could arise from 
defense counsel advising each Defendant about testifying (or not testifying) at a trial where they 
were both charged. I also specifically addressed how joint representation could potentially 
impact their attorneys’ ability to pursue the same strategy for Carolyn at a second trial compared 
to her first trial or could potentially impact their attorneys’ ability to make strategic choices 
(about, for example, what evidence to emphasize in a joint trial or what jurors to select in jury 
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selection) that would maximize both of their individual interests.  Both Defendants 
acknowledged that they understood these potential conflicts.2 
I advised both Defendants of their right to a conflict-free attorney.  I advised both 
Defendants that, if they could not afford a separate attorney, one could be appointed for them 
free of charge.  I also advised both Defendants that they could have the opportunity to consult 
with an independent attorney (appointed free of charge) before making their decision to waive 
any conflicts (and, indeed, an Assistant Federal Public Defender was present to provide the 
Defendants an opportunity for independent counsel on their decision).  I offered each Defendant 
an opportunity to ask any questions they wished the Court to answer (they had none).  I further 
advised each Defendant that any conflict waiver entered into at the hearing would be binding on 
them at later stages of the case, including sentencing and appeal.  See United States v. Rodriguez, 
982 F.2d 474 (11th Cir. 1993).    
Both Tracy and Carolyn stated that they understood their rights and that they nonetheless  
wished to continue with Mr. McCray and Mr. Wilcox as their lawyers.  They also each read and 
executed an affidavit [DE 114, 115] indicating the same.  I find that these waivers of potential 
conflicts arising out of joint representation were knowing, intelligent and voluntary. 
   
 
2 At the start of the July 15 hearing, the Government requested the opportunity to file a memorandum explaining the 
potential conflicts of interest that could arise from joint representation in this case.  After obtaining a brief extension 
of time in order to obtain a full transcript of Tracy Wade’s testimony from the May 2024 trial, the Government filed 
that memorandum on July 24, 2024.  [DE 108].  That memorandum summarizes the Government’s evidence from 
the May 2024 trial, describes Tracy Wade’s testimony (including citations to specific salient answers), and identifies 
potential conflicts of interest.  Specifically, the Government describes potential conflicts in the duty of loyalty that 
could arise in counsel advising Tracy Wade whether he should testify again (which could benefit Carolyn but could 
be adverse to Tracy’s interests) or not testify (which could impede Carolyn’s ability to pursue the same defense 
strategy she pursued in the first trial).  Similarly, the Government asserts that advising Carolyn to testify (or not 
testify) at a joint trial could benefit one of the Defendants to the detriment of the other.  The Government further 
describes how strategic choices about what facts to emphasize, including in the cross examination of expected 
cooperating witness Haydee Granados, could benefit one of the Defendants while harming the other.  Although the 
Court conducted the July 15 hearing without the benefit of the transcript of Tracy’s testimony and the Government’s 
memorandum, I find that the colloquy sufficiently addressed the potential conflicts described by the Government 
such that the Defendants’ waivers of those potential conflicts were knowing, intelligent, and voluntary. 
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This Court finds that Mr. McCray and Mr. Wilcox may continue to represent Tracy D. 
Wade and Carolyn Denise Wade at this time.  There is a presumption in favor of allowing a 
defendant to retain counsel of choice.  The Court has advised both Mr. and Ms. Wade of their 
right to conflict-free counsel, and they both knowingly and intelligently waived their right to a 
conflict-free attorney.  They have filed a written waivers to that effect.  [DE 114, 115].  
Accordingly, it is hereby: 
 
ORDERED AND ADJUDGED that Attorneys Daryl Elliott Wilcox and Johnny 
Leonard McCray, Jr. will be permitted to represent Defendant Tracy D. Wade and Defendant 
Carolyn Denise Wade (“Carolyn” or “Ms. Wade”) in this matter.   
 
DONE and ORDERED in Chambers at Fort Lauderdale, Florida, this 25th day of July, 
2024.  
 
 
 
 
 
 
 
 
_____________ ____ ___
__________ 
 
 
 
 
 
 
JARED M. STRAUSS  
 
 
 
 
 
 
UNITED STATES MAGISTRATE JUDGE 
 
 
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