Tucker v. United States of America

Filing 5

OPINION AND ORDER: The motions of Scott Tucker and Timothy Muir brought pursuant to 28 U.S.C. § 2255 are DENIED. Tucker's motion for a sentence reduction pursuant to 18 U.S.C. § 3582(c) is DENIED. The Clerk is respectfully directed to terminate the motions (ECF 486, 493, 504, 513) and to close the civil cases docketed at 22-cv-1470 (PKC) and 22-cv-8745 (PKC).Tucker and Muir have not made a substantial showing of the denial of a constitutional right, and accordingly, a certifica te of appealability will not issue. 28 U.S.C. § 2253; see Blackman v. Ercole, 661 F.3d 161, 163-64 (2d Cir. 2011). The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this order would not be taken in good faith and therefore in forma pauperis status is denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).SO ORDERED. (Signed by Judge P. Kevin Castel on 8/28/2024) (vfr)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-----------------------------------------------------------x
UNITED STATES OF AMERICA,
16-cr-91 (PKC)
-against-

OPINION AND ORDER

SCOTT TUCKER and TIMOTHY MUIR,
Defendants.
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SCOTT TUCKER,
Petitioner,

22-cv-1470 (PKC)

-againstUNITED STATES OF AMERICA,
Respondent.
----------------------------------------------------------x
TIMOTHY MUIR,

Petitioner,

22-cv-8745 (PKC)

-againstUNITED STATES OF AMERICA,
Respondent.
----------------------------------------------------------x
CASTEL, U.S.D.J.
Defendants Scott Tucker and Timothy Muir move to vacate, set aside or correct
their respective sentences pursuant to 28 U.S.C. § 2255. (ECF 486, 493.) Tucker separately
moves for a sentence reduction for “extraordinary and compelling reasons” pursuant to 18 U.S.C.
§ 3582(c)(1)(A). (ECF 504.) Tucker is represented by retained counsel, and Muir, who was
trained as a lawyer, represents himself pro se.

The Court will first address defendants’ motions for relief under section 2255
and then address Tucker’s motion for a sentence reduction. For the reasons that will be
explained, the motions will be denied.
BACKGROUND.
A Superseding Indictment charged Tucker and Muir with fourteen counts relating
to an unlawful payday-lending scheme that sought to evade state usury laws through sham
arrangements with Native American tribes. (ECF 114.) Count One charged defendants with
conspiracy to collect unlawful debt in violation of the Racketeering Influenced and Corrupt
Organizations Act (“RICO”), 18 U.S.C. § 1962(d). (Id. ¶¶ 1-36.) Counts Two through Four
charged them with the substantive RICO violations of collection of unlawful debts. 18 U.S.C. §
1962(c). (Id. ¶¶ 37-45.) Count Five charged conspiracy to commit wire fraud and Count Six
charged the substantive crime of wire fraud, in violation of 18 U.S.C. §§ 1349, 1343 and 2. (Id.
¶¶ 46-50.) Count Seven charged money laundering conspiracy, Count Eight charged promotion
money laundering, and Count Nine charged concealment money laundering, in violation of 18
U.S.C. §§ 1956(h), 1956(a)(1)(A)(i), 1956(a)(1)(B)(i) and 2. (Id. ¶¶ 51-58.) Counts Ten through
Fourteen charged false disclosures under the Truth in Lending Act (“TILA”), in violation of 15
U.S.C. §§ 1611 and 2. (Id. ¶¶ 59-63.)
Trial commenced on September 11, 2017. The following is an overview of the
evidence demonstrating defendants’ years-long scheme to deceive customers and regulators
about the costs of their loans and the true ownership of Tucker’s money-lending businesses.
The government presented evidence that in or around 2000, Tucker began
offering short-term, high-interest loans through internet sites. (Tr. 700-22.) Tucker’s operation

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ultimately grew to more than 1,500 employees and made loans to 4.65 million customers,
generating $3.5 billion in revenue and $1.31 billion in profits. (Tr. 1258, 1686, 1696.)
Tucker first began making loans through websites with names like “500
FastCash,” “Telecash” and “Ameriloan,” which, while held out to the public as separate
businesses, were controlled by Tucker and administered by the same employees working from a
common building. (Tr. 700, 703-12, 719-22.) The loans made by Tucker’s businesses utilized
similar structures. For each $100 received by a borrower, a $30 interest charge was debited from
the borrower’s bank account on the following payday, none of which was applied toward the
loan’s principal, and the loan was “automatically renewed.” (Tr. 173-79.) The cycle of $30
debits and “automatic renewals” continued for five paydays, at which point, another $50 was
debited and applied to the principal, and a separate $30 debit was applied to interest. (Id.) A
loan of $300 would require repayment of $975, with interest comprising $675 of that total. (Tr.
109, 183-85; GX 1911.) While annual interest rates on the loans varied, they often exceeded
600%, which significantly exceeded the permissible statutory maximums set by state usury laws.
(GX 1501, 1503, 2303, 2701.) Customers and state agencies regularly complained to Tucker’s
employees that the loans violated state laws. (Tr. 211-24, 696-97, 758-72.)
The loan structure was never disclosed to borrowers, though a payment schedule
was shown in a chart used to train new employees. (Tr. 175.) TILA requires disclosure using a
“TILA Box,” which lists basic information that includes the total amount of expected payments.
The TILA Box shown to customers of the Tucker-controlled businesses falsely showed a totalpayment amount of $390. (GX 2701.) Tucker’s managers understood the TILA Box to be false.
(Tr. 184, 751.)

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The automatic-renewal process was described in intricate language using fine
print. (Tr. 95, 369-70.) Tucker’s businesses endeavored to reduce the number of borrowers who
quickly repaid their loans in full, because repeat payments through the automatic-renewal
process were more profitable. (Tr. 191-97, 747-49.) Borrowers testified that they were surprised
to learn the repayment terms and the total amounts owed, and one of Tucker’s employees
testified that the companies kept tallies and summaries of customer complaints, which were
discussed at meetings. (Tr. 99, 141-42, 212, 368-70, 668.) A former customer testified to
paying $1,855 to a Tucker entity for a loan of $600, and described how his telephone interaction
with customer service caused him greater confusion and anxiety. (Tr. 1667-68.) He explained
why the online loan application caused him to believe that he would owe total repayment of
$780. (Tr. 1665-66.)
Tucker orchestrated schemes to conceal the origins of these loans and his
ownership of the businesses. From 1998 to 2004, he routed loans through a nationally chartered
bank located in Delaware because Delaware does not limit the interest rates charged on a loan,
even though Tucker continued to operate his business entirely from Overland Park, Kansas. (Tr.
397-406, 417-441, 720, 735.) Certain agreements between Tucker and the Delaware bank
misrepresented the nature of their relationship, which ultimately ended because the bank limited
Tucker’s “automatic renewal” practice and Tucker was dissatisfied with the bank’s cut of the
proceeds. (Tr. 449-50, 745-53, 1351-52, GX 101, 102, 103.)
Tucker also formed a series of shell companies in Nevada to conceal the
ownership of his businesses, using d/b/a aliases. (Tr. 447-48, 707, 921.) During this time,
Tucker’s businesses falsely listed Nevada addresses and Nevada owners, and Tucker instructed

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employees to conceal their Kansas location in order to maintain the false appearance of a Nevada
presence. (Tr. 911-22, 933-50, 782-86, 1353.)
Around 2003, Tucker began to implement a sweeping scheme to misrepresent his
businesses as being owned and operated by three Native American tribes: the Miami Nation of
Oklahoma, the Modoc Nation of Oklahoma and the Santee Sioux Tribe of Nebraska. (Tr. 997,
1411, 1339.) Each tribe claimed to own one or more of the companies previously associated
with the Nevada shell companies. (GX 817, 1727, 2615.) Each tribe received 1% of the revenue
earned from the Tucker business that the tribe falsely claimed to own. (GX 302, 801, 1204; Tr.
1465, 1902.) However, Tucker provided all capital for the loans, bore the risks of repayment,
and administered the loans from his office in Overland Park, Kansas. (Tr. 294-95, 344, 1038,
1052-53, 1416-18, 1435, 1446-47.) Tucker also created bank accounts in the Tribes’ names for
the purpose of handling cashflow from the lending businesses, but personally retained control of
those accounts and used them for personal expenses that included race cars, a private jet and a
home in Aspen. (Tr. 294-95, 344, 1038, 1052-53, 1416-18, 1435, 1446-47, 1720, 2160; GX
3551, 3552.)
Beginning in 2005 or 2006, Muir began acting as general counsel to Tucker and
the entities under his control. (Tr. 691-93.) In or around 2008, he formed the Muir Law Firm,
though his pay from Tucker remained unchanged, and he was required to obtain Tucker’s
permission to work for other clients. (Tr. 2716-17 & GX 2601-02.) Employees of Tucker’s
businesses continued interacting with Muir as if he were general counsel. (Tr. 165, 215, 691,
1195.)
The government presented evidence that tribal involvement not only was intended
to conceal Tucker’s own role in the lending business but also to shield the businesses from state

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usury laws based on principles of tribal immunity. (Tr. 281, 1015-16, 1046, 1096.) Carolyn
Williams, who was recording secretary on the boards of Tucker’s companies, described the
arrangements as “a rent-a-tribe situation.” (Tr. 1096.) When state authorities attempted to
enforce state laws on Tucker’s businesses, Muir and other legal counsel invoked tribal immunity,
including through the submission of sham affidavits to state courts signed by tribal officials. (Tr.
1056-66, 1461-67.) The companies also cited to tribal immunity when confronted by customer
complaints, responding that state laws did not govern because the loans were issued by a tribe.
(Tr. 100 (“It seemed like the standard response to any of my questions was sovereign nation.”),
144-45 (“They told me that they were part of a sovereign nation and not subject to U.S.
law . . . .”), 767-78, 1668-69.)
Tucker employed various methods to misrepresent the lending companies as
tribal entities, including the use of tribal mailing addresses, from which mail was forwarded
unopened to Overland Park; directives to Overland Park employees to falsely claim they were
located on tribal land; and providing employees with daily weather reports for the tribal
reservations in order to more persuasively misrepresent the operation over the phone. (Tr. 617,
1031, 203-10, 786; GX 1408, 1903-04, 1906-09.) Employees who revealed their true location
were terminated. (Tr. 205-06.) Each day, tribal officials logged into a tablet to nominally
approve loans, an action that had no effect on whether the businesses controlled by Tucker
actually issued the loans. (Tr. 1267-68.) Tribes also formed corporate boards to purportedly
exercise control over the Tucker-controlled companies, but the boards rarely met and exercised
no control over the companies. (GX 310, 406-T, 502.) Tucker had the authority to transfer the
companies between tribes at will, and, in an email, stated that he controlled the tribes. (Tr. 280203; GX 1014, 2806.)

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In 2008, Tucker and Muir engaged in a sham transaction to nominally transfer
Tucker’s loan-processing company to the Miami Nation of Oklahoma for $135,259. (Tr. 108889.) In this transaction, Tucker changed the name of that company from “CLK” to “AMG”
using a bank account that he controlled, which had the effect of Tucker paying himself to acquire
a company that he already owned. Muir then commenced a sham lawsuit in which Tucker sued
AMG under a Kansas statute, seeking a court order compelling the Kansas Secretary of State to
accept a certificate of filing related to the transaction. (Tr. 1209-31.) Muir paid counsel
representing Tucker, and Tucker reimbursed Muir using a check drawn from an AMG account,
meaning that AMG had paid for its own adversary’s counsel. (GX 2623, 2602.)
After Muir’s success in a different state court proceeding, Tucker gave him as a
gift a decommissioned military tank, inscribed with the letters “FUMAGFST,” which stood for
“FU, Mr. Attorney General, from Scott Tucker.” (Tr. 1295-96.)
Tucker called six witnesses in his defense, including the current and former chiefs
of the Miami tribe. (Tr. 1752-2162.) Muir testified in his own defense, and on crossexamination agreed that he knew that Tucker’s companies charged hundreds of percent in annual
interest to borrowers around the country, including in states with usury limits of less than 50
percent a year. (Tr. 2901-02.) He agreed that the companies “entered into relationships with
Indian tribes” “[b]ecause of those laws, yes.” (Tr. 2904.)
On October 13, 2018, the jury returned a verdict of guilty against defendants
Tucker and Muir on all fourteen counts. On January 5, 2018, the Court sentenced Tucker
principally to 200 months of imprisonment and Muir to 84 months of imprisonment. The Bureau
of Prisons website indicates that Muir was released from custody on February 17, 2023. Tucker
has a projected release date of April 9, 2031.

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Tucker and Muir filed a direct appeal to the Second Circuit. See United States v.
Grote, 961 F.3d 105 (2d Cir. 2020). Tucker was represented on appeal by Beverly Van Ness,
and Muir submitted a pro se brief on his own behalf. They principally urged that the Court gave
an erroneous and prejudicial instruction to the jury as to the mental state required for unlawfuldebt charges brought under RICO. Id. at 113-21. Applying plain-error review, the Second
Circuit observed that the government “presented overwhelming evidence that Defendants were
aware of the unlawful nature of the loans,” including the “sham illusion that the lending was
done by Native American tribes, precisely so that state usury laws would not seem to apply.” Id.
at 117. In light of the “overwhelming” evidence, the Second Circuit explained that it did not
need to resolve conflicting lines of authority as to RICO’s state-of-mind requirement for the
collection of lawful debt. Id. at 117-21. The Second Circuit concluded that the remaining
arguments of Tucker and Muir were without merit, including arguments that the Court erred by
precluding defendants’ proposed expert on tribal immunity, that there was insufficient evidence
to support their convictions of wire fraud, and that the loans could not constitute unlawful debt
under RICO. Id. at 121-22. The Supreme Court denied defendants’ petition for certiorari.
Tucker v. United States, 141 S. Ct. 1445 (2021).
LEGAL STANDARD.
A person in federal custody may collaterally attack a final judgment in a criminal
case based on “a constitutional error, a lack of jurisdiction in the sentencing court, or an error of
law or fact that constitutes a fundamental defect which inherently results in complete miscarriage
of justice.” Graziano v. United States, 83 F.3d 587, 589-90 (2d Cir. 1996) (quotation marks
omitted). Review of a section 2255 motion “is ‘narrowly limited in order to preserve the finality
of criminal sentences and to effect the efficient allocation of judicial resources.’” United States

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v. Hoskins, 905 F.3d 97, 102 (2d Cir. 2018) (quoting Graziano, 83 F.3d at 590). “To warrant a
hearing, the motion must set forth specific facts supported by competent evidence, raising
detailed and controverted issues of fact that, if proved at a hearing, would entitle him to relief.”
Gonzalez v. United States, 722 F.3d 118, 131 (2d Cir. 2013).
A defendant is in procedural default if a claim raised in a section 2255 motion
was not first raised in a direct appeal. See Bousley v. United States, 523 U.S. 614, 622 (1998).
However, “[a] defendant can raise new arguments in a § 2255 motion if the defendant establishes
(1) cause for the procedural default and ensuing prejudice or (2) actual innocence.” United
States v. Pena, 58 F.4th 613, 621 (2d Cir. 2023) (quotation marks omitted).
TUCKER’S SECTION 2255 MOTION WILL BE DENIED.
I.

Tucker Is Not Entitled to Section 2255 Relief Based on the Claimed
Denial of His Choice of Counsel under the Sixth Amendment.
A. Overview of Tucker’s Choice of Counsel Claims.
Tucker asserts that he should receive a new trial because he was tried, convicted

and sentenced after being deprived of the right to be represented by counsel of his choosing in
violation of the Sixth Amendment. See generally United States v. Stein, 541 F.3d 130, 154-57
(2d Cir. 2008).
Tucker’s claimed constitutional injury stems from an asset freeze ordered by the
district court of the District of Nevada in FTC v. AMG Services, Inc., et al., 12 Civ. 536 (D.
Nev.) (the“ Nevada FTC Action.”). That order, which was issued in a civil proceeding brought
by the Federal Trade Commission (the “FTC”) against Tucker and related parties, had the effect
of freezing $7 million that Tucker had deposited into a joint escrow account for the purpose of
funding his retained counsel in this case, Paula Junghans and Paul Schechtman, then of the law
firm Zuckerman Speader LLP.
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Approximately seven weeks after Schechtman first advised this Court that Tucker
was no longer able to pay for attorneys’ fees or the services required from an outside vendor, the
Court granted the motions to withdraw brought by Schechtman and Junghans. Pursuant to the
CJA Act, the Court appointed four attorneys to represent Tucker through trial: Lee Alan
Ginsberg, James Roth, Beverly Van Ness and Nadjia Limani. The withdrawal of Tucker’s
retained counsel and the appointment of CJA counsel took place approximately four months after
the indictment was filed and fifteen months before trial.
On December 3, 2018, the Ninth Circuit affirmed the relief ordered by the District
of Nevada, with two members of the panel writing a concurrence explaining that the decision
adhered to Ninth Circuit precedent that appeared to have been wrongly decided. FTC v. AMG
Cap. Mgmt., LLC, 910 F.3d 417, 429-37 (9th Cir. 2018). The Supreme Court granted Tucker’s
petition for certiorari, and, in April 2021, unanimously reversed the Ninth Circuit, holding that
section 13(b) did not authorize a court to order monetary relief, and exclusively allowed for
prospective injunctive relief. AMG Cap. Mgmt., LLC v. FTC, 593 U.S. 67 (2021). Tucker
urges that the relief ordered in Nevada FTC Action led to the withdrawal of his retained counsel
against his wishes, resulting in the denial of his right to be represented by counsel of his
choosing.
Tucker asserts that his attorneys performed ineffectively in regard to the
withdrawal of Junghans and Schechtman. First, he urges that both retained and appointed
counsel performed ineffectively by not raising a challenge to the asset freeze order entered in the
Nevada FTC Action, in either this Court or in the District of Nevada. Second, he urges that his
appointed counsel performed ineffectively by not filing a motion to reconsider this Court’s order
granting the withdrawal motion filed by Tucker’s retained counsel. Third, he urges that his

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appellate counsel, Beverly Van Ness, performed ineffectively by not raising the claimed denial
of the counsel of his choosing on direct appeal to the Second Circuit. Fourth, he urges that
retained counsel was ineffective in failing to structure Tucker’s payment of a $7 million advance
on attorneys’ fees in a manner that could have shielded the payment from any asset freeze
obtained by the FTC. Finally, Tucker has argued that he is entitled to a new trial because the
relief ordered in the Nevada FTC Action prevented him from proceeding to trial with his choice
of counsel, which he describes as a “structural error” that exempts him from the obligation to
show cause and prejudice in order to excuse his procedural default. As will be shown, a claim of
“structural error” not raised on direct appeal but first raised on collateral review is subject to the
cause and prejudice requirement to excuse a procedural default, and Tucker has not made a
showing of either cause or prejudice.
B. The Standard for Demonstrating Ineffective Assistance of Counsel.
A defendant asserting that counsel’s performance was constitutionally deficient
under the Sixth Amendment must satisfy a two-prong test. “[A] convicted defendant must show
both (a) ‘that counsel’s representation fell below an objective standard of reasonableness . . .
under prevailing professional norms,’ and (b) ‘that the deficient performance prejudiced the
defense,’ i.e., ‘that counsel’s errors were so serious as to deprive the defendant of a fair trial, a
trial whose result is reliable.’” Henry v. Poole, 409 F.3d 48, 63 (2d Cir. 2005) (quoting
Strickland v. Washington, 466 U.S. 668, 688, 687(1984)). “The challenger’s burden is to show
‘that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed
the defendant by the Sixth Amendment.’” Harrington v. Richter, 562 U.S. 86, 104 (2011)
(quoting Strickland, 466 U.S. at 688)). “The determinative question at this step is not whether
counsel deviated from best practices or most common custom, but whether his representation

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amounted to incompetence under prevailing professional norms.” Harrington v. United States,
689 F.3d 124, 129-30 (2d Cir. 2012).
In deciding whether counsel’s performance was objectively unreasonable, a court
“must make ‘every effort . . . to eliminate the distorting effects of hindsight, to reconstruct the
circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s
perspective at the time,’ and ‘must indulge a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance.’” Henry, 409 F.3d at 63 (quoting
Strickland, 466 U.S. at 689). In deciding the prejudice prong, a court must “determine whether,
but for counsel’s deficient performance, ‘there is a reasonable probability that . . . the result of
the proceeding would have been different,’ for an ‘error by counsel, even if professionally
unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error
had no effect on the judgment.’” Henry, 409 F.3d at 63 (quoting Strickland, 466 U.S. at 694,
691).
C. Tucker Does Not Demonstrate Ineffective Assistance Based
on His Counsel’s Decision Not to Seek Relief from the
District of Nevada’s Asset Freeze Order.
Tucker urges that his retained counsel performed ineffectively by “failing to try to
protect some of” the funds dedicated for use as attorneys’ fees and by failing to challenge the
asset restraints in the Nevada FTC Action. (ECF 487 at 13-17.) He also urges that appointed
counsel performed ineffectively by not moving for a release of funds in order to protect his
choice of counsel. (Id.)
This argument is without merit. Tucker was well-represented by counsel in the
District of Nevada, where his attorneys vigorously opposed the relief sought by the FTC. (D.
Nev. Action ECF 797.) Almost four years before Tucker was indicted, the FTC commenced its

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civil proceeding against Tucker, Muir and other entities, seeking injunctive and other equitable
relief. On March 31, 2016, the District of Nevada granted the FTC’s motion for a preliminary
injunction, which had the effect of freezing Tucker’s assets, including the funds in the joint
escrow account. (D. Nev. Action ECF 960.) The judge in the District of Nevada provided that
Tucker and his wife could retain access to $75,000 for attorneys’ fees and living expenses for the
two months following the date of its Order. (Id. at 8, 15.) The Order further provided that after
the two-month period expired, the FTC and Tucker “shall confer regarding future allowances for
attorneys’ fees and living expenses.” (Id. at 16.)
On April 26, 2016, Tucker’s counsel in Nevada moved for reconsideration and
modification of the March 31 Order, asserting, among other things, that the injunction interfered
with Tucker Sixth Amendment right to retain the counsel of his choosing in the criminal
proceeding in this Court. (ECF 506-6; D. Nev. Action ECF 975, at 5-9.) The brief was filed on
Tucker’s behalf by attorneys from Quinn Emanuel Urquhart & Sullivan, LLP, Lewis Roca
Rothgerber Christie LLP, and Berkowitz Oliver LLP. (See id.) It included extensive discussion
of the Supreme Court’s then-recent Luis opinion and argued that the FTC had not shown that all
of Tucker’s assets were “tainted.” (See id.). On September 30, 2016, the District Judge issued a
37-page Order that granted a motion for summary judgment filed by the FTC. (D. Nev. Action
ECF 1057.) The Order directed the payment of $1,266,084,156 in restitution from Tucker and
his co-defendants jointly and severally under section 13(b) of the FTC Act. (Id. at 21-26.) It
denied as moot Tucker’s motion to reconsider the preliminary injunction order of March 31
“[b]ecause the Court grants the FTC’s request for equitable monetary relief . . . .” (Id. at 2 n.2.)
It did not address Luis or any issues related to Tucker’s criminal representation.

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Tucker’s Nevada counsel filed papers in opposition to the FTC’s application for
a preliminary injunction, urging that an asset freeze was an improper remedy under the FTC Act
at that stage of the proceeding, that the FTC had not established an entitlement to monetary
relief, and that the proposed relief did not properly carve out funds to pay for attorneys’ fees.
(See id.) After the District of Nevada granted the FTC’s motion for an injunction, Tucker’s
attorneys moved for reconsideration. (D. Nev. Action ECF 975.) By that point, Tucker had been
indicted, and his attorneys in Nevada emphasized Tucker’s need to fund his criminal defense.
(Id.) His Nevada attorneys urged that “a freeze cannot be permitted where it works to prejudice
an individual’s Sixth Amendment rights, which is exactly the result obtained by the FTC with the
terms propounded to this Court for adoption.” (Id. at 4.) They discussed in detail the then-recent
Luis decision that distinguished restraints on tainted and untainted assets needed to pay for a
defendant’s chosen counsel. (Id. at 5-9.)
The District of Nevada did not address these arguments. In a footnote, it denied
the motion for reconsideration as moot in light of its grant of equitable monetary relief on
summary judgment. (D. Nev. ECF 1057 at 2 n.2.)
Neither Tucker’s retained counsel nor the appointed counsel who appeared as
counsel for Tucker in the prosecution before this Court were objectively unreasonable in failing
to make further application on Tucker’s behalf regarding the relief ordered in the Nevada FTC
Action. The three law firms representing Tucker in the Nevada FTC Action advocated forcefully
on his behalf. Tucker suggests that his counsel in this action could have taken additional steps,
such as making separate application to the FTC, requesting that the prosecutors in this case work
with the FTC to facilitate a release of funds, making an application to this Court, or seeking
emergency relief from the Ninth Circuit. (ECF 487 at 14.) Tucker’s attorneys in the Nevada

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FTC Action were more than capable of acting on his behalf, as demonstrated by their ultimate
success before the Supreme Court. The prosecutors in the case before this Court represented on
the record that they had no role in the FTC’s civil proceedings. Paula Junghans, one of Tucker’s
retained counsel, states that counsel in the Nevada FTC Action brought “a vigorous challenge to
the freeze order” and that Junghans and Schechtman were “fully informed of the proceedings as
they unfolded. No purpose would have been served by duplicate or additional submissions from
us.” (Junghans Dec. ¶ 34 (ECF 506).) Lee Ginsberg, one of Tucker’s appointed counsel, states
that he was “relatively familiar” with the efforts of Tucker’s counsel to access the assets in order
to pay for his defense, and that “the issue regarding the funds was being separately litigated in
other forums . . . .” (Ginsberg Dec. ¶¶ 20, 23 (ECF 505).)
Similarly, it was not objectively unreasonable of Tucker’s criminal defense
counsel, retained or appointed, to refrain from bringing an application to this Court directed to
the Nevada FTC Action. Junghans notes that “there was no proceeding in this Court in which
such an order could have been requested.” (Junghans Dec. ¶ 33; emphasis in original.) She
further states, “I do not think it would have been appropriate or ethical for us to orchestrate an
evasive maneuver designed to prevent the FTC from enforcing its rights if the Nevada court
agreed with the FTC’s position.” (Junghans Dec. ¶ 33.) Tucker does not now point to any
procedural mechanism or statutory basis that would have permitted this Court to compel access
to assets restrained in the Nevada FTC Action.
For much the same reason, Tucker does not identify prejudice. He does not
identify any argument or procedural avenue that would plausibly have led to an outcome that
would have varied from the outcome obtained by his highly capable civil attorneys in the Nevada
FTC Action.

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Tucker’s Strickland argument directed to his retained and appointed criminal
defense counsel’s failure to bring an application directed to the Order in the Nevada FTC Action
is meritless.
D. Tucker Does Not Make Out a Strickland Claim Based on Counsel’s
Failure to Move for Reconsideration of the Withdrawal Order.
1. Background on the Withdrawal of Tucker’s Retained Counsel.
Schechtman first informed the Court of the asset freeze in a letter of April 18,
2016, advising that an Order in the Nevada FTC Action “has the effect of restraining the funds
held by counsel for the purpose of defending this case. It has caused the defense to come to a
standstill. On April 1, 2016, for example, the vendor tasked with processing the discovery
material was directed to stop because the freeze order precludes payment to it.” (ECF 31.)
Schechtman stated that defense counsel was negotiating with the FTC and the government for
the release of funds. (Id.) At the pretrial conference of April 22, 2016, Schechtman advised the
Court that Tucker “literally has no money to pay counsel.” (Id.) Referencing the FTC freeze
and the Nevada proceedings, the government stated that “it’s obviously not our case” and “we
don’t control it,” and that “whatever solution the defendant comes up with respect his counsel – I
mean, it’s his solution; it’s certainly not ours – it has to be a solution that anticipates and takes
into account whatever might happen in the FTC case going forward.” (Id. at 9-10.) At that
conference, the Court asked Tucker whether he wished to permit his counsel to withdraw and
retain a new lawyer, have counsel appointed on his behalf, or represent himself pro se; Tucker
answered in the negative as to all three options. (Id. at 19.) Tucker confirmed that he wished to
continue to be represented by Junghans and Schechtman. (Id. at 21.)
At a pretrial conference of June 3, 2016, Schechtman stated that while he and
Junghans wished to remain as counsel, Tucker’s accounts remained frozen, and that they “have
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no choice but to withdraw, most reluctantly.” (ECF 64 at 12.) The Court explained to Tucker
that he had the right to effective assistance of counsel under the Sixth Amendment, and that he
also had the right to be appointed counsel at public expense and a right to self-representation.
(Id.) Tucker then stated, “I would like to have my right to counsel. They have been with me for
a long time. I have got escrowed money with them specifically for this case for over a year, and
I would like my right to choose my counsel.” (Id. at 13.) Schechtman, confirmed on the record
that the accounts in escrow remained frozen. (Id. at 13-14.) The Court reviewed with Tucker his
inability to continue to pay for his retained attorneys, stating that “I would be pleased . . . if you
have appointed counsel in this case and for some reason you have the funds to pay Mr.
Schechtman and his colleagues, and leave to withdraw is granted now, allow them to appear
once again in the case. . . . If for some reason a week later you had access to funds to pay Mr.
Schechtman, and Mr. Schechtman wanted to appear in this case, that is something that the Court
would be open to. In fact, I think that unless it disrupted the schedule in the case, you would have
a near absolute right to do so.” (Id. at 14-15.) The Court stated that it “propose[d] to . . . appoint
counsel” for Tucker from the District’s CJA panel, explaining: “These are lawyers who go
through an elaborate screening process. . . . And they are men and women who are most
comfortable in handling complex criminal matters.” (Id. at 15.)
At a conference of June 10, 2016, Schechtman read into the record a statement
written by Tucker. (ECF 81 at 3-4.) It stated in part that the restraints on his funds “make it
impossible for me to pay for lawyers, let alone confront any other expenses and financial
obligations necessary to defend a case of this magnitude . . . . I am now prevented from having
access to the lawyers of my choice, and I am the person to suffer the prejudice of that
circumstances.” (Id.) It stated that “I am compelled to take the appointment of CJA counsel and

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let the American taxpayers pay for my defense.” (Id. at 4.) According to Tucker, Junghans and
Schechtman knew from the outset of their representation that his assets could be frozen in a
government proceeding yet agreed to represent him despite that risk. (Tucker Dec. ¶ 12.)
On June 10, 2016, the Court entered an Order that substituted James Roth, a
member of the District’s CJA Panel, for Schechtman. (ECF 61; see also ECF 81.) Lee Alan
Ginsberg. Nadjia Limani and Beverly Van Ness were subsequently appointed as additional
counsel to Tucker. (ECF 84, 86, 90.) Ginsberg ultimately served as lead trial counsel.
2. Tucker Does Not Demonstrate Ineffectiveness.
Tucker urges that his appointed attorneys were ineffective in failing to move for
reconsideration of the Order permitting Junghans and Schechtman to withdraw. He cites to the
Second Circuit’s decision in United States v. Parker, 439 F.3d 81, 104 (2d Cir. 2006), which
stated that “[n]on-payment of legal fees, without more, is not usually a sufficient basis to permit
an attorney to withdraw from representation . . . .”
The circumstances in Parker were very different than the one presented here.
Parker reviewed a practice in the Western District of New York in which courts inquire whether
attorneys are “fully retained” for the duration of proceedings, in an attempt to head off situations
in which the depletion of funds results in a “bail out” of an attorney under the CJA, as well as to
prevent attorneys from limiting representation “to only a discrete stage of the criminal
proceedings . . . .” See id. at 99-104. In this context, the Second Circuit summarized authority
that weighed against attorney withdrawal based on non-payment of legal fees, and emphasized
attorneys’ ethical responsibilities to continue with representation unless a client deliberately
disregards an agreement to pay fees. Id. at 104-05. The Second Circuit concluded, among other

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things, that the “fully retained” inquiry prevents retained attorneys from using an initial
appearance to secure CJA appointment outside of the CJA Plan. Id. at 105.
Here, the Court granted the motion to withdraw after a thorough airing of the
circumstances related to the lack of funds available to pay for Tucker’s retained counsel. Tucker
does not identify any change to the underlying facts, such as the release of funds subject to the
freeze Order or some newly available funding source to pay for retained counsel. As has been
summarized, Tucker unambiguously communicated to the Court his desire to continue with the
representation of his retained counsel. Ginsberg notes that the Court “was apparently cognizant
of Mr. Tucker’s professed desire to have retained counsel represent him at the trial.” (Ginsberg
Dec. ¶ 22 (ECF 505).) It was reasonable for Tucker’s appointed counsel to conclude that a
motion for reconsideration of the withdrawal order was unlikely to succeed.
3. Tucker Does Not Demonstrate Prejudice.
Had Tucker’s counsel moved to for reconsideration of the withdrawal order, the
motion would have been denied.
The Court accepts that the asset freeze in the Nevada FTC Action was later held
to have been based upon an erroneous interpretation of the FTC Act and that it had the effect of
thwarting Tucker’s payment arrangement with his counsel in the prosecution brought in this
Court. But a foundational premise of any argument that a defendant was deprived of his right to
counsel of his own choosing under the Sixth Amendment is that the Court presiding over the
prosecution committed some form of error. See United States v. Gonzalez-Lopez, 548 U.S. 140,
148 (2006) (“Deprivation of the right is ‘complete’ when the defendant is erroneously prevented
from being represented by the lawyer he wants, regardless of the quality of the representation he
received.”). In Gonzalez-Lopez, the district court erroneously denied an application for pro hac

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vice admission based upon an erroneous application of a rule of professional conduct. Id. at 143.
Here, Tucker can point to no error by this Court.
Defendants are frequently deprived of their choice of counsel because they cannot
afford the lawyers they desire. “[A] defendant may not insist on representation by an attorney he
cannot afford or who for other reasons declines to represent the defendant.” Wheat v. United
States, 486 U.S. 153, 159 (1988). The inability to pay for counsel of one’s choosing could be the
result of a reversal in financial fortune, a collapse in a market, a secured judgment issued in
another court or other circumstance known or unforeseen. To use a simple hypothetical, an
attachment of assets belonging to a charged defendant by a judgment creditor obtained in a state
court that had the practical effect of depriving the defendant of counsel of his own choosing in a
federal prosecution would give rise to no meritorious federal claim because the federal court
lacked the power to alter or modify the attachment.
Here, the apparent cause of the inability to pay for counsel was an asset freeze
Order issued in the Nevada FTC Action. The asset freeze was set aside as a result of a Supreme
Court ruling having nothing to do with criminal prosecutions or Sixth Amendment rights but
statutory construction of the FTC Act. That the court issuing the asset freeze was a federal
district court in another district and the application for the freeze was made by the FTC, an
agency of the federal government, does not, on these facts, alter the conclusion that there was no
cognizable error by this Court.
The Nevada FTC Action was filed in 2012, four years before the indictment was
returned in this case. The motion for a preliminary injunction that resulted in the asset freeze
was filed nine months before the indictment. At no point did Tucker or his counsel suggest that
this Court had the authority to vacate or modify the Nevada asset freeze. Tucker presented no

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briefing to this Court on the issue that was addressed by the Supreme Court: the scope of FTC
authority under section 13(b) of the FTC Act to obtain equitable monetary relief such as
restitution or disgorgement. AMG Capital Management, LLC v. Federal Trade Commission,
593 U.S. 67, 70 (2021). This Court was not asked to modify the asset freeze Order issued by the
Chief Judge Navarro, had no jurisdiction to do so and committed no error by not doing so. The
circumstance that caused Tucker’s inability to pay his attorneys was wholly beyond this Court’s
control.
Nor is there any basis to lay the FTC proceedings at the feet of the United States
Attorney’s Office for the Southern District of New York (“USAO-SDNY”). There is no
evidence of a joint prosecution, or that the Nevada asset freeze was sought by the FTC or the
USAO-SDNY in order to aid the USAO-SDNY’s prosecution of Tucker or disadvantage Tucker
in defending the case. Tucker attempts to elide the distinction between the FTC and the USAOSDNY, sometimes referring to them in the aggregate as “the Government.” (ECF 487 at 8-9.)
But Tucker points to no basis in fact or law to support a claim that his prosecution by the USAOSDNY was a joint effort with the FTC. He acknowledges that “there is no direct evidence on the
face of the record of this case to show cooperation between the U.S. Attorney and the FTC . . . .”
(Id. at 9.) Tucker’s own attorneys and the USAO-SDNY have described a lack of coordination
between the FTC and the prosecution team. Shechtman states that he “tried to persuade the
Southern District prosecutors to intervene in the FTC case, but they did not see it as their fight.”
(Schechtman Dec. ¶ 6 (ECF 516-1).) Junghans states that “[t]he United States Attorney took a
‘hands off’ approach to the issue.” (Junghans Dec. ¶ 36 (ECF 506).) The USAO-SDNY has
consistently represented to this Court that it was not involved in the FTC action, stating that “it’s
obviously not our case” and “we don’t control it.” (ECF 35 at 9.)

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In a somewhat analogous context, courts in this Circuit have found that the
government’s Brady obligations extend to another state or federal agency only where the agency
was part of a joint investigation or joint prosecution with the government. See, e.g., United
States v. Collins, 409 F. Supp. 3d 228, 241-43 (S.D.N.Y. 2019) (government’s Brady obligation
not extended to SEC where there was no joint investigation or joint fact-finding) (Broderick, J.);
United States v. Gupta, 848 F. Supp. 2d 491, 495 (S.D.N.Y. 2012) (government’s Brady
obligation extended to documents held by the SEC because 44 joint interviews were conducted
by prosecutors and SEC investigators) (Rakoff, J.). No rule of law has been adopted to this
Court’s knowledge attributing actions by one federal agency to a local USAO simply because the
two are part of the Executive Branch of government.
The Court also notes that there was a Post-Indictment Restraining Order (“PIRO”)
entered in this district in this case by Judge Oetken on February 9, 2016. (ECF 30.) Junghans
states that the PIRO “did not reach the funds held in our trust account.” (Junghans Dec. ¶ 19.)
This statement, which the Court fully accepts, does not address whether any assets that were
restrained by the PIRO might have been otherwise available to pay counsel. It suffices to note
that no application was made to this Court by Tucker to modify the PIRO. 1
Simply put, no ruling of this Court erroneously deprived Tucker of counsel of his
own choosing. Had Tucker’s counsel moved for reconsideration, the motion would have been
denied. Tucker therefore cannot point to prejudice as a result of any failure to move for
reconsideration.
An otherwise properly obtained restraint on a defendant’s tainted assets is not subject to modification simply
because it impedes a defendant’s right to select counsel of his own choosing. See Caplin & Drysdale, Chartered v.
United States, 491 U.S. 617, 626 (1989) (“A defendant has no Sixth Amendment right to spend another person's
money for services rendered by an attorney, even if those funds are the only way that that defendant will be able to
retain the attorney of his choice.”) This remains the law post-Gonzalez-Lopez. See Kaley v. United States, 571
U.S. 320, 327 (2014). A restraint imposed by the Court on untainted, legitimate assets of the defendant obtained by
the prosecution may result in a Sixth Amendment violation. See Luis v. United States, 578 U.S. 5, 12-13 (2016).
1

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E. Tucker Does Not Make Out a Strickland Claim Based on Appellate
Counsel’s Failure to Raise a Choice-of-Counsel Argument.
Tucker’s section 2255 motion raised no constitutional claim related to the
effective assistance of appellate counsel. More than three months after the government filed its
answering brief, Tucker’s new section 2255 counsel first raised ineffectiveness of appellate
counsel in a reply brief. The government has not responded to the reply brief and Tucker’s
appellate counsel has not made any submission. As explained, the Court exercises its discretion
not to consider this improperly raised claim.
Beverly Van Ness served as Tucker’s appellate counsel. She made an appearance
in this Court and argued certain legal issues at the trial but had no role in the presentation of
evidence. The Second Circuit granted her request to file an oversized brief of not more than
18,000 words. See ECF 487-5, Brief of Defendant-Appellant Scott Tucker, United States v.
Grote, No. 18-184 (2d Cir. July 27, 2018). The bulk of the 65-page brief was directed to the
Court’s jury instructions on the state-of-mind requirement on willfulness relating to the
collection of unlawful debt, see id. at 34-55, an issue that the Second Circuit discussed at length
in its published opinion that summarized the “tension” between authorities applying the state-ofmind requirement under RICO and state anti-usury laws. Grote, 961 F.3d at 115-21. That brief
also argued that this Court erred by precluding Tucker’s proposed expert on tribal immunity and
testimony about Tucker’s reliance on the advice of counsel. (See ECF 487-5 at 56-64.)
“In attempting to demonstrate that appellate counsel’s failure to raise a state claim
constitutes deficient performance, it is not sufficient for the habeas petitioner to show merely that
counsel omitted a nonfrivolous argument, for counsel does not have a duty to advance every
nonfrivolous argument that could be made. However, a petitioner may establish constitutionally
inadequate performance if he shows that counsel omitted significant and obvious issues while
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pursuing issues that were clearly and significantly weaker.” Mayo v. Henderson, 13 F.3d 528,
533 (2d Cir. 1994) (citation omitted); accord McKee v. United States, 167 F.3d 103, 106-07 (2d
Cir. 1999) (applying Mayo to section 2255 motion). “‘Generally, only when ignored issues are
clearly stronger than those presented, will the presumption of effective assistance of counsel be
overcome.’” Smith v. Robbins, 528 U.S. 259, 288 (2000) (quoting Gray v. Greer, 800 F.2d 644,
646 (7th Cir. 1986)).
In his reply memorandum on this section 2255 motion, Tucker asserts for the first
time that any procedural default is excused because his appellate counsel, Van Ness, performed
ineffectively by not raising the choice-of-counsel argument on direct appeal. (See ECF 527.)
“[I]neffective assistance adequate to establish cause for the procedural default of some other
constitutional claim is itself an independent constitutional claim.” Edwards v. Carpenter, 529
U.S. 446, 451 (2000).
“The district court has discretion to consider arguments made and evidence
submitted for the first time in a reply brief . . . .” Kingstown Cap. Mgmt., L.P. v. Vitek, 2022
WL 3970920, at *1 (2d Cir. Sept. 1, 2022) (summary order); see also Am. Hotel Int’l Grp., Inc.
v. OneBeacon Ins. Co., 611 F. Supp. 2d 373, 375 (S.D.N.Y. 2009) (“the Second Circuit has
made it abundantly clear that a district court has discretion to consider a belatedly-raised
argument.”) (emphasis in original) (McMahon, J.). After Tucker’s section 2255 motion was
filed, the Court granted his attorney’s motion to withdraw, and a notice of appearance was then
filed on Tucker’s behalf by Benjamin Adam Silverman, whose two requests for extensions of
time to file a reply brief were granted. (ECF 518, 519, 521, 522, 526.)
This Court exercises its discretion to disregard a new constitutional argument, i.e.,
that appellate counsel was ineffective, first raised by Tucker in a reply brief to this Court.

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Tucker, represented by counsel, was granted more than three months to prepare his reply brief.
(ECF 527.) That the attorney who filed the original 2255 motion was not the attorney who filed
the reply brief is hardly an excuse for raising this new constitutional claim. He offered no
arguments why this belatedly raised argument should be considered, and the Court declines to do
so. At no point did Tucker seek leave to amend his petition to raise new arguments. The
government neither sought nor was granted leave to reply to the new arguments raised in
Tucker’s reply.
If the Court were to consider the argument challenging the effectiveness of
appellate counsel, Tucker would fare no better. A reasonable attorney would have seen it as an
act of futility to construct a claim around the denial of choice of counsel, piecing together the
District of Nevada’s application of the FTC Act with the withdrawal of counsel in this action.
The Supreme Court granted its writ of certiorari in the FTC case on July 9, 2020. See AMG
Cap. Mgmt., LLC v. Fed. Trade Comm’n, 141 S. Ct. 194 (2020). By that time, Tucker’s direct
appeal in this case had been fully briefed, argued and decided. The Second Circuit issued its
decision in Grote on June 2, 2020. Van Ness filed Tucker’s appellate brief on July 27, 2018,
about four months before the Ninth Circuit called into question its own precedent applying the
FTC Act while also affirming the relief ordered in the Nevada FTC Action. Tucker’s appellate
counsel appears to have made the reasonable strategic choice to focus on claimed errors in this
Court’s instructions to the jury relating to Tucker’s state of mind and the preclusion of expert
testimony, rather than asserting that the Ninth Circuit had misinterpreted the FTC Act and
wrongfully caused the withdrawal of Tucker’s retained attorneys.
Tucker says little about why Van Ness performed ineffectively by advancing
other, alternative arguments on his direct appeal. He asserts in conclusory fashion that Van Ness

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“behaved unprofessionally by failing to raise the Sixth Amendment challenge on direct appeal,”
(ECF 527 at 23) but offers no argument as to why the issue is clearly stronger than those raised
in its place. Though Tucker’s direct appeal was unsuccessful, the Second Circuit’s published
opinion suggests that the panel thought his arguments concerning the wording of the Court’s
instructions to the jury on the mental state required to convict defendants on the substantive
counts charging the collection of unlawful debts had some merit and warranted careful attention.
Grote, 961 F.3d at 113-21. In the course of its discussion, Grote noted that the Circuit’s own
RICO precedent included “two incompatible state-of-mind standards,” and that competing lines
of authority required proof of scienter for federal criminal statutes while separately stating that
no mental-state requirement existed when a RICO predicate act was the violation of state civil
usury laws. See id. at 117, 118. Though Grote affirmed defendants’ judgment and conviction
based on the “overwhelming” evidence against them, and elected not “to resolve those
difficulties” about RICO’s mental-state requirement, id. at 121, the panel nevertheless gave
serious and detailed consideration to the arguments raised by Van Ness.
Tucker also does not address the other issue raised in his direct appeal, which
urged that this Court erred by precluding him from calling an expert witness on the topic of tribal
sovereign immunity and offering evidence about counsel’s advice on applicable law. (ECF 4875 at 56-64.) The Second Circuit concluded that the Court did not err by precluding expert
testimony on legal matters, which is inadmissible under Rule 702. Grote, 961 F.3d at 121.
Though the panel seemingly viewed the argument as having little merit, Tucker has not
explained why his argument concerning the right to chosen counsel was more significant and
obvious than the preclusion of his proposed expert.

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Tucker does not explain why the Sixth Amendment argument he now raises was a
“significant and obvious” issue that should have been raised in place of the “clearly and
significantly weaker” issue of RICO’s state-of-mind requirement. Mayo, 13 F.3d at 533. He
faults Van Ness for not foreseeing two later-issued decisions, including one from the Supreme
Court, that respectively questioned and reversed the Ninth Circuit’s interpretation of the FTC
Act. The argument is grounded in “the distorting effects of hindsight” that does not account for
“counsel’s perspective at the time.” Henry, 409 F.3d at 63. If the ineffective assistance of
appellate counsel claim had been properly raised – and it was not – it would not have provided a
basis for section 2255 relief.
F. Tucker Does Not Make Out a Strickland Claim Based on His Retained
Counsel’s Failure to Shield the Attorney Escrow Account from the FTC.
In his reply memorandum, Tucker asserts for this first time that his retained
counsel performed ineffectively by depositing attorney-retainer funds into a joint client escrow
account, rather than into a prepayment account owned exclusively by the Zuckerman law firm.
(ECF 527 at 24-28.) Alternatively, he also has proposed that counsel could have deposited the
retainer into the Court’s registry pursuant to 28 U.S.C. § 2041. (Id. at 29; ECF 487 at 13.)
For the reasons previously explained, the Court in the exercise of discretion
declines to consider Tucker’s argument directed to his retained attorneys’ use of a joint escrow
account because it was raised in reply for the first time. If the Court had exercised its discretion
to consider the claim, it would not have any merit.
Junghans states that, pursuant to a May 18, 2015 retainer agreement, Tucker
wired $5 million on May 20, 2015 into a trust account intended to fund his criminal defense.
(Junghans Dec. ¶ 12.) Two days later, Tucker wired an additional $2 million, and Tucker
executed a revised retainer agreement. (Id. ¶ 13 & Ex. D.) Junghans states that at all times, it
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was understood that the funds were property of Tucker, and that the Zuckerman firm had no
interest in the funds unless and until services to be paid from the retainer were performed. (Id. ¶
14.) She states that when the District of Nevada issued its injunction order in favor of the FTC,
“[i]t was clear to me” that the order applied to the funds in the trust account, “and that we could
do nothing with the retainer funds” without consent of the FTC and the Nevada court. (Id. ¶ 18.)
She states that the FTC was “utterly intransigent” as to the release of funds needed to pay
Tucker’s defense. (Id. ¶ 20.) She states that Tucker paid slightly less than $1 million for legal
services over a five-year period, with $447,365.96 paid for a tax proceeding and $545,979.63
paid for his criminal representation. (Id. ¶ 31.) She states that “after extensive negotiations with
the FTC,” an additional $82,914.92 was paid to the Zuckerman firm from the retainer account,
with $6,932,610.05 remitted to the FTC. (Id. ¶ 32.)
Junghans states that she and Schechtman “did not consider” depositing the
retainer fund in the Court’s registry pursuant to 28 U.S.C. § 2041. (Id. ¶ 33.) She states that
while she and Schechtman were aware of the FTC’s then-pending motion, they did not know
whether funds dedicated for Tucker’s criminal defense would be exempted. (Id.)
Tucker’s retained counsel was not objectively unreasonable in failing to foresee
that the FTC injunction would apply to Tucker’s retainer fund and failing to take additional
measures intended to shield those funds from the District of Nevada. This goes well beyond the
standard of representation required by Strickland and suggests that an attorney who places a
retainer fee in escrow rather than in a lawyer-owned, advance-payment account performs
ineffectively in the event that the client’s funds become subject to a freeze order. It also is not
apparent that the maneuver would have been successful because the authorities cited by Tucker
seem to recognize that property may be subject to forfeiture if it is transferred following an arrest

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or indictment. (ECF 527 at 27.) In the context of the FTC’s civil action, the gambits proposed
by Tucker may have been viewed by the FTC and the Nevada court as an effort to secret or
protect funds that were properly subject to the injunction. The success or failure of Tucker’s
proposals is speculative and may have risked serious negative consequences for Tucker and his
counsel.
Tucker has not made a showing of ineffectiveness or resulting prejudice based on
the failure to shield his retainer funds from the relief ordered by the District of Nevada.
G. Separate from the Claims Raised Pursuant to Strickland, Tucker Has
Not Made the Showing Required to Excuse Procedural Default.
Tucker’s opening brief urged that he is entitled to section 2255 relief because “the
Government” improperly restrained his assets, resulting in the denial of his chosen counsel
pursuant to Luis, 578 U.S. at 10, 20-21. Tucker did not cite to Van Ness’s failure to raise this
argument on his direct appeal or invoke Strickland, but described “[t]he unconstitutional
restraint” on his assets as “set[ting] off a chain reaction” that both deprived him of his chosen
counsel and caused the appointment of attorneys who he deems ineffective. (ECF 487 at 6-12.)
He states that “[b]ecause denial of counsel of choice is a structural issue, a new trial is required
regardless of a showing of prejudice.” (Id. at 12.)
As already discussed, Tucker did not raise a choice-of-counsel argument in his
direct appeal to the Second Circuit. A defendant is in procedural default if a claim raised in a
section 2255 motion was not first raised in a direct appeal. Bousley, 523 U.S. at 622. However,
“[a] defendant can raise new arguments in a § 2255 motion ‘if the defendant establishes (1) cause
for the procedural default and ensuing prejudice or (2) actual innocence.’” Pena, 58 F.4th at 621.
“The procedural-default rule is neither a statutory nor a constitutional requirement, but it is a
doctrine adhered to by the courts to conserve judicial resources and to respect the law’s
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important interest in the finality of judgments.” Massaro v. United States, 538 U.S. 500, 504
(2003).
The denial of a defendant’s choice of counsel “unquestionably qualifies as
‘structural error.’” Gonzalez-Lopez, 548 U.S. at 150. “Despite its name, the term ‘structural
error’ carries with it no talismanic significance as a doctrinal matter.” Weaver v. Massachusetts,
582 U.S. 286, 299 (2017). Weaver affirmed a decision of the Massachusetts Supreme Judicial
Court, which concluded that while defendant’s Sixth Amendment right to a public trial had been
violated and was a structural error, the defendant had not demonstrated that counsel’s failure to
object to the courtroom’s closure caused prejudice warranting a new trial. See id. at 303-04.
The issue was not raised in a direct appeal but instead through a post-conviction motion asserting
ineffective assistance under Strickland. See id. at 293.
Weaver observed that a structural error raised in a trial objection and on direct
appeal “generally” entitles a defendant to automatic reversal. Id. at 299. “[I]f a new trial is
ordered on direct review, there may be a reasonable chance that not too much time will have
elapsed for witness memories still to be accurate and physical evidence not to be lost. There are
also advantages of direct judicial supervision.” Id. at 302. “[I]n postconviction proceedings, the
costs and uncertainties of a new trial are greater because more time will have elapsed in most
cases. The finality interest is more at risk, and direct review often has given at least one
opportunity for an appellate review of trial proceedings. These differences justify a different
standard for evaluating a structural error depending on whether it is raised on direct review or
raised instead in a claim alleging ineffective assistance of counsel.” Id. at 302-03 (internal
citation omitted). Accordingly, a defendant who identifies a structural error in a post-conviction
Strickland motion is not relieved from the obligation to “show[ ] prejudice in the ordinary sense,

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i.e., a reasonable probability that the jury would not have convicted him if his attorney had
objected” or that the error caused “a fundamentally unfair trial.” Weaver, 582 U.S. at 303-04.
The reasoning of Weaver, which concluded that the label of “structural error”
does not relieve a defendant of the obligation to meet Strickland’s burdens, is consistent with
other Supreme Court and Second Circuit precedent requiring a defendant to identify cause and
prejudice in order to overcome procedural default. “While the nature of a constitutional claim
may affect the calculation of cause and actual prejudice, it does not alter the need to make that
threshold showing.” Engle v. Isaac, 456 U.S. 107, 129 (1982). “[A]ny prisoner bringing a
constitutional claim to the federal courthouse after a state procedural default must demonstrate
cause and actual prejudice before obtaining relief.” Id. at 129. “Liberal allowance of the
writ . . . degrades the prominence of the trial itself. . . . Passage of time, erosion of memory, and
dispersion of witnesses may render retrial difficult, even impossible.” Id. at 127-28; see also
Napoli v. United States, 32 F.3d 31, 36-37 (2d Cir. 1994) (“It is settled that a procedural default
of even a constitutional issue will bar review under section 2255 unless the petitioner can show
cause excusing the default and actual prejudice resulting from the challenged error.”); Campino
v. United States, 968 F.2d 187, 190 (2d Cir. 1992) (“[F]ailure to raise a claim on direct appeal is
itself a default of normal appellate procedure, which a defendant can overcome only by showing
cause and prejudice. . . . [F]inality, accuracy and the integrity of prior proceedings, as well as
concerns of judicial economy, weigh in favor of applying the cause and prejudice standard.”);
Jennings v. United States, 2005 WL 1387987, at *7 (S.D.N.Y. June 6, 2005) (defendant must
demonstrate cause for procedural default and resulting prejudice even if he claims structural
error) (Stein, J.); Pugliano v. United States, 2005 WL 3478360, at *6 (D. Conn. Dec. 19, 2005)
(“even though the petitioners’ jury composition claim may involve a structural error, there is no

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authority that recognizes ‘structural error’ as an exception to the cause and prejudice requirement
for procedurally-defaulted constitutional claims.”).
Because Tucker cannot make out a showing that Van Ness was ineffective in
failing to raise this Sixth Amendment issue on direct appeal, Tucker has failed to show cause.
See Tavarez v. Larkin, 814 F.3d 644, 650 (2d Cir. 2016) (“There is no doubt that ineffective
assistance of counsel can serve as cause to excuse a procedural default.”).
Tucker also cannot demonstrate prejudice, for the reasons already discussed. To
demonstrate the prejudice required to excuse a procedural default, the movant “must show not
merely that the errors at trial created a possibility of prejudice, but that they worked to his actual
and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.
Such a showing of pervasive actual prejudice can hardly be thought to constitute anything other
than a showing that the prisoner was denied ‘fundamental fairness’ at trial.” Murray v. Carrier,
477 U.S. 478, 494 (1986) (emphasis in original; internal citation, quotation marks and alterations
omitted). “The burden therefore falls upon petitioners to demonstrate their entitlement to relief
under § 2255 in this case based on an error of law that constitutes a fundamental defect which
inherently results in a complete miscarriage of justice.” Napoli v. United States, 45 F.3d 680,
683 (2d Cir. 1995) (quotation marks omitted).
While Tucker asserts that he need not demonstrate prejudice because he has
identified a structural error, he also has asserted that the outcome of his trial would have been
different had he been represented by Schechtman and Junghans. He states that “[g]iven the
complex nature of this case, it is reasonably probable that Tucker’s chosen counsel would have
presented a more thorough defense and that the result at trial would have been different had he
been represented by his counsel of choice throughout trial.” (ECF 487 at 15.) He points to

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Schechtman’s history of work in criminal litigation and Junghans’s expertise in tax litigation and
white-collar defense. (Id. at 7-8.) He urges that the government benefited from the withdrawal
of his retained counsel. (Id. at 9.)
Tucker’s assertion that it is “reasonably probable” that the outcome of trial would
have been different is belied by what the Second Circuit described as “overwhelming” evidence
of his guilt. See Grote, 961 F.3d at 109, 117, 121. Aside from citing the background and
credentials of his retained counsel, Tucker does not identify how those attorneys may have
performed more effectively in light of the overwhelming evidence offered by the government.
The Court concludes that Tucker has not identified “an error of law that constitutes a
fundamental defect which inherently results in a complete miscarriage of justice.” Napoli, 45
F.3d at 683.
II.

Tucker Has Not Otherwise Identified Ineffective Assistance of Counsel.
A. Tucker Does Not Make Out a Strickland Claim Based on
Counsel’s Claimed Failure to Object to the Jury Charge.
Tucker urges that his counsel performed ineffectively by not objecting to portions

of the state-of-mind element charged to the jury, thus causing the Second Circuit to review the
issue under a “plain error” standard rather than the “harmless error” standard urged by Tucker.
(ECF 487 at 18-19.) He argues that if the issue had been properly preserved, there is a
reasonable probability that the outcome on appeal would have been different. (See id.)
Count One of the S1 Indictment charged Tucker with conspiracy to collect
unlawful debts, and Counts Two through Four charged him with the substantive crime of
collecting unlawful debts. (ECF 114.) In defining in the elements of the conspiracy charged in
Count One, the Court charged that “[w]illfully means to act deliberately and with a purpose to do
something that the law forbids. The defendant need not have known that he was breaking any
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particular law, but he must have been aware of the generally unlawful nature of his act.” (Trial
Tr. 3287-88 (ECF 308).)
On Counts Two through Four, the Court also charged the jury on the element that
the defendant must have willfully and knowingly agreed to participate in the collection of an
unlawful debt. (Id. 3292-94.) It stated as follows:
The government is not required to prove that the defendant knew
what the usury rates were in the states that the borrowers lived. For
example, in the case of a New York borrower, the government does
not need to prove that the defendant you are considering knew that
New York’s highest enforceable rate of interest on consumer loans
was 25 percent. Nor does the government have to prove that a
defendant knew the enforceable rate of interest in any other state. In
this case, ignorance of the specific terms of any law is no excuse to
the charged conduct. The government can meet its burden on the
“willfully” and “knowingly” element by proving that a defendant
acted deliberately, with knowledge of the actual interest rate charged
on the loan. It may also meet its burden by showing a defendant
acted deliberately, with an awareness of the generally unlawful
nature of the loan, and also that it was the practice of the business
engaged in lending money to make such loans.
(Id. at 3293-94.)
In his appeal to the Second Circuit, Tucker devoted 21 pages of his memorandum
to arguing that this Court’s mens rea instructions “were materially flawed” and favored the
government. (See ECF 487-5.) He urged that the Court’s instruction “effectively mooted” his
defense that he believed the loans were lawfully made by tribal entities, and instead instructed
the jury to make a finding of guilt if the jury merely found that he had knowledge of the interest
rates charged in the loans. (See id. at 39-47.)
The Second Circuit applied plain error review, noting that the defense had
objected to the charge at a mid-trial conference, but not following the delivery of the charge to
the jury. Grote, 961 F.3d at 114-15. It then explained that in charging the jury on the willfulness

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element in Count One, “the court barred the jury from rendering a guilty verdict on that count
unless it found beyond a reasonable doubt that the Defendants were aware of the unlawfulness of
their lending scheme.” Id. at 116. “The guilty verdict on Count 1 thus demonstrates that the jury
was satisfied beyond a reasonable doubt that the Defendants acted with the mental state that
Defendants argue was required for Counts 2-4. . . . [T]here is no risk that the jury could have
found them guilty on the ‘collection of an unlawful debt’ element of Counts 1-4, involving the
loans that were the object of the conspiracy charged in Count 1, without being satisfied beyond a
reasonable doubt that the Defendants were aware of the unlawful nature of their conduct.” Id. at
116-17. The Second Circuit proceeded to review the “overwhelming evidence that Defendants
were aware of the unlawful nature of the loans,” including “extensive efforts to conceal their
lending activities and to create a sham illusion” that the loans were issued by tribal entities. Id.
at 117. The panel “express[ed] no view on whether willfulness or awareness of unlawfulness
was required for conviction under Counts 2-4,” noting the Circuit’s “confusing and arguably
incompatible precedents regarding the required mental state for a RICO offense involving
unlawful debt.” Id. After detailing the tension in existing precedent, it noted that it did not reach
the issue because “the jury necessarily found that the Defendants acted willfully in rendering a
guilty verdict on Count 1, and because the evidence of willfulness was overwhelming in any
event . . . .” Id. at 121.
In a declaration filed in connection with this motion, Van Ness urges that she
raised a timely objection at trial, and that both the defendant and the government believed that
the issue had been properly preserved for appeal. (Van Ness Dec. ¶ 4 (ECF 503); see also
Ginsberg Dec. ¶ 29 (ECF 505); Gov’t Mem. at 25 (ECF 516) (noting that government did not
urge on appeal that defendants failed to preserve objection to jury charge).)

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Assuming that Tucker’s counsel was objectively unreasonable in failing to
preserve an objection to the state-of-mind charge, Tucker has not demonstrated prejudice
resulting from the oversight. He contends that “there is a reasonable probability . . . that the
result of the appeal would have been different” if the Second Circuit had applied harmless error
review. As described by the Second Circuit, “[i]f the defendant objected to an erroneous jury
instruction at trial and raises the same claim of error on appeal, a harmless error standard of
review applies. Under this standard of review, a conviction will be affirmed only if it is clear
beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the
error.” United States v. Botti, 711 F.3d 299, 308 (2d Cir. 2013) (quotation marks and internal
citation omitted).
Tucker’s assertion of prejudice is belied by Grote’s observation that “we have no
doubt that, if the willfulness instruction challenged by Defendants was erroneous, the error did
not affect the verdict.” Grote, 961 F.3d at 117. As noted, the Second Circuit concluded that the
jury found “that the Defendants were aware of the unlawful nature of the lending scheme”
“based on overwhelming evidence of that fact.” Id. As support for this conclusion, Grote
cataloged trial evidence that included false representations about the businesses’ tribal character,
“fake loan approvals” from tribal officials, “a sham transaction” to give the false appearance of
tribal ownership, and the submission of false attorney affidavits in state-court actions. See id.
Tucker has not provided a plausible basis to conclude that the Second Circuit would have
concluded otherwise had it applied harmless error review instead of plain error review.
Tucker’s ineffective-assistance claim directed to his attorneys’ failure to timely
object to the jury charge will be denied.

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B. Tucker Does Not Make Out a Strickland Claim Based on His
Counsel’s Questions in Cross-Examination.
Tucker urges that at trial, his attorney James Roth “routinely failed to pursue
relevant matters on cross examination and even elicited harmful testimony on cross
examination.” (ECF 487 at 20-21.) He characterizes the errors as “significant” and not entitled
to the deference afforded by Strickland. (See id.)
The government called as a witness Kelly Rogers, who testified about her 11
years of employment at CLK Management, which she described as an “online payday loan
lending company” owned by Tucker. (Tr. 147-224 (ECF 269).) Rogers testified about the
company’s business operations, the processing of loan applications, and the fees and interest
charged to borrowers. (See id.) She testified that annual interest rates “were always in the 100s,
even up to the thousands.” (Tr. 184.) She testified that customer-service representatives were
instructed to falsely inform callers that they were in certain locations associated with Native
American tribes, rather than their true location, and received daily weather updates about the
weather in those locations in order to deceive customers. (Tr. 202-11.)
Tucker urges that Roth did not conduct an effective cross-examination of Rogers.
He notes that Roth did not inquire about Rogers’s “cooperation agreement” with the government,
confront her about conflicting statements she made to the government before trial, and did not
follow up after Rogers agreed that certain of her statements were speculation. (ECF 487 at 20.)
In an affirmation, Roth states that his cross-examination was conducted with the input of Tucker
and others on the defense team. (Roth Aff. ¶ 7 (ECF 507).) He states that Tucker knew Rogers
from her time as his employee, and that he did not inquire about Rogers’s “cooperation” due to
Tucker’s knowledge about the witness’s history. (Roth Aff. ¶ 7.) He states that it was a strategic
choice not to inquire further about Rogers’s conflicting testimony. (Id.)
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Tucker has not explained why it was objectively unreasonable of Roth not to
pursue certain lines of inquiry. The government points out that Rogers never entered into a
cooperation agreement, but instead entered into a non-prosecution agreement, and points to the
relevant agreement provided in discovery. (Gov’t Mem. at 26 n .8.) To the extent that Roth
purportedly did not inquire about “speculation,” his exchange with Rogers was as follows:
Q. So some of what you testified about is a little bit of speculation,
is that fair to say, in terms of the conclusions?
A. All I said was they had meetings. I don’t know what they were
discussing.
(Tr. 230.) Rogers did not agree that she engaged in speculation, and seemed to reject the
suggestion that she did. Tucker does not identify the contents of the “conflicting” statements she
gave to the government before trial. Tucker does not explain why it was objectively
unreasonable of Roth not to further pursue these lines of inquiry and does not articulate how
further cross-examination on these topics could have “[u]ndermin[ed]” Rogers’s testimony.
Roth made his point in front of the jury that Rogers did not know what the meeting participants
were discussing. Continued probing once the point has been established could have led to a
devastating retraction by the witness. Tucker’s experienced counsel avoided this trap. Tucker
has not made any showing of ineffectiveness or resulting prejudice based on Roth’s crossexamination of Rogers.
Separately, Tucker asserts that Roth was ineffective in his cross-examination of
Adrian Rubin. Roth asked a series of questions to Rubin about one of his businesses, which was
“a payday operation” that obtained a license in Utah through “a straw person” and operated a call
center in Delaware without a license to make loans in other states. (Tr. 506.) Rubin agreed that
it was an “illegal and criminal” operation. (Tr. 507.) Tucker points out that these same

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characteristics described many of Tucker’s businesses, and that Roth highlighted the
unlawfulness of Rubin’s activities without distinguishing them from Tucker’s.
In his affirmation, Roth states that he elicited testimony about Rubin’s business as
impeachment, based on Rubin’s failure to disclose his illegal business activities in proffer
sessions with the government. (Roth Aff. ¶ 8.) Roth states that Rubin’s business model was not
identical to Tucker’s and that the impeachment value outweighed any potential prejudice. (Id.)
Tucker does not explain why it was objectively unreasonable of Roth to attempt
to impeach Rubin by inquiring about his history of illegal activities and the completeness of his
disclosures to the government. These lines of inquiry had the potential to undermine the
credibility of a government witness. Tucker also does not explain how he was prejudiced by
Roth’s cross-examination, offering only the conclusory argument that “[i]t is reasonably likely”
that “the jury would have reached a different verdict” if Roth had not pursued this line of inquiry.
(ECF 487 at 21.)
Tucker’s ineffective-assistance claim directed to the conduct of Roth’s crossexaminations will be denied.
C. Tucker Does Not Make Out a Strickland Claim
Based on the Potential Conflict of Ginsberg.
1. The Curcio Hearing of September 25, 2017.
In a letter dated September 24, 2017, an attorney to Ginsberg advised the Court in
writing that the day before, Ginsberg had initiated a meeting with the U.S. Attorney’s Office for
this District in connection with “a sophisticated extortionate blackmail scheme” that had targeted
Ginsberg. The letter requested that a hearing pursuant to United States v. Curcio, 680 F.2d 881
(2d Cir. 1982), be immediately held in connection with Ginsberg’s ongoing representation of

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Tucker. The government separately submitted a letter stating its belief that a Curcio hearing was
required before the trial could proceed.
As now characterized by Ginsberg, he was being “blackmailed and defrauded by
a former client of mine” during the period that he was representing Tucker. (Ginsberg Dec. ¶ 5
(ECF 505).) Ginsberg states that to the best of his recollection, he advised Tucker of the issue
early in the trial. (Ginsberg Dec. ¶ 9.)
On September 25, 2017, two weeks after the commencement of the trial, the
Court conducted a Curcio hearing to address a potential conflict relating to his lead trial attorney,
Lee Ginsberg. There is no claim that the Court could have acted any sooner than it did. The
Court held the hearing the morning after receiving a letter from the government raising the
conflict based upon statements made by Ginsberg the day before the letter. The Court
questioned Tucker on the record in order to confirm Tucker’s understanding of the situation and
to determine whether it was Tucker’s wish that Ginsberg continue to represent him. Tucker
agreed on the record to waive any potential conflict held by Ginsberg and any future challenge or
argument based on that conflict. The Court found that Tucker’s waiver was knowing and
voluntary, and accepted the waiver.
The Court conducted the Curcio hearing in the presence of all parties and counsel,
as well Ginsberg’s own attorney. 2 The Court denied Roth’s suggestion to appoint temporary
additional counsel to advise Tucker on the potential conflict, concluding that Roth, who had been
appointed as counsel by the Court pursuant to the Criminal Justice Act, was best-positioned to

The transcript of this hearing is currently under seal. The government states that it sees no reason to maintain
sealing “given that the investigation it described has long since been completed.” (Opp. Mem. at 29.) The
substance of Ginsberg’s potential conflict is also detailed in the parties’ public submissions in connection with this
motion. The Court will enter a separate Order directing the unsealing of the transcript.

2

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advise Tucker on potential conflict and waiver. (Curcio Tr. 5-7.) The Court then adjourned the
hearing so that Roth could confer further with Tucker. (Curcio Tr. 8.)
When the hearing resumed, Tucker confirmed that he had reviewed the two letters
and had the opportunity to speak with Roth and have any questions addressed. (Curcio Tr. 9,
11.) Tucker confirmed that he was satisfied with his representation. (Curcio Tr. 11.) Tucker
confirmed his understanding that Ginsberg may have been the victim of a crime being
investigated by law enforcement, including the U.S. Attorney’s office and the FBI, and that the
investigation related to an ongoing extortion and fraud scheme perpetrated by a former client of
Ginsberg. (Curcio Tr. 11.) He confirmed his understanding that Ginsberg had lost large sums of
money, may have suffered threats, believed he was the subject of surveillance by the perpetrator,
and had experienced significant emotional and mental distress, including the fear of potential
criminal prosecution. (Curcio Tr. 11-12.) He confirmed his understanding that Ginsberg had
agreed to cooperate with the government against the scheme’s perpetrator. (Curcio Tr. 12.) He
confirmed his understanding that the possible extortion case was “totally unrelated factually” to
the proceedings against Tucker. (Curcio Tr. 12.) He confirmed his understanding that Ginsberg
could possibly be criminally charged in connection with the matter under investigation. (Curcio
Tr. 13.) He confirmed his understanding that Ginsberg’s role in connection with the
investigation could potentially create a conflict of interest or cause him to take actions that
benefited the government. (Curcio Tr. 13-15.)
The Court asked Tucker to describe Ginsberg’s role “in the defense of your case,”
and Tucker responded: “He is our lead litigator. He came on after Jim [Roth] came on and has
gotten up to speed. He’s a key member of the team, and I have no reason to think that anything
that we just discussed is going to inhibit his ability to defend me at the highest level.” (Curcio

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Tr. 13.) He stated that the potential conflict had “been fully explained, and I’ve had a lengthy
discussion with Jim [Roth] and Lee [Ginsberg] about that, and I’m satisfied that they’re going to
represent me with the highest level of integrity.” (Curcio Tr. 14.) When asked whether he was
“dissatisfied in any way” with Ginsberg’s representation to that point, Tucker answered in the
negative. (Curcio Tr. 15.) When asked to explain in his own words his understanding of the
potential conflict, Tucker replied:
Judge, the conflict is Lee’s going to be cooperating with the
government in the same office that is trying to prosecute me -- well,
they are prosecuting me, and that all the things that we just talked
about could come up. And I’ve had, again, lengthy discussions with
Jim and Lee specifically about that, and I feel confident moving
forward with him, and I don’t believe that those are going to be
issues.
(Curcio Tr. 16.) When the Court asked Tucker whether he wished to proceed with Ginsberg as
trial counsel despite the potential conflicts, Tucker responded, “Absolutely, nonnegotiable.”
(Curcio Tr. 17.) Tucker confirmed that he understood that he was agreeing to waive any future
argument or challenge related to Ginsberg’s continued representation. (Curcio Tr. 17-18.)
When the Court asked Ginsberg whether he wished to make any statements into
the record, Ginsberg responded that the situation had created “additional stress” and “pressure”
but that “there’s no doubt in my mind that I’m able and prepared to proceed, have been.”
(Curcio Tr. 18-19.)
The Court found that Tucker’s waiver of any conflict or potential conflict was
knowing and voluntary, and accepted the waiver. (Curcio Tr. 19.)
Tucker now urges that, in essence, he felt pressured into waiving any objection to
Ginsberg’s possible conflicts due to the mid-trial timing of the hearing. Based on the disclosure
to Tucker at the Curcio hearing, his clear understanding of the nature of the conflict and his

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waiver of the conflict after conferring with appointed attorney Roth, the Court adheres to its
conclusion that Tucker’s waiver was knowing, voluntary and intelligent.
2. Tucker Does Not Identify Attorney Ineffectiveness or
Prejudice Arising out of Any Potential Conflict.
Tucker’s ineffectiveness argument principally asserts that he “observed Lee
Ginsberg to be distracted and inattentive throughout the trial in this matter.” (Tucker Dec. ¶ 26
(ECF 487-1).) He states that, “at one time,” Ginsberg left the courtroom during the direct
examination of a witness that he later cross-examined. (Id.) He states that Ginsberg was
“constantly checking his personal phone throughout trial and I believe he was distracted and
inattentive due to the personal issue he was facing in which he was cooperating with the
[government].” (Id.)
In his affidavit, Ginsberg states that he “was undoubtedly upset by the sequence
of events that had unfolded for me,” but that he has “no specific recollection” that he ever
“absented myself from the courtroom during a substantial period of time on the direct
examination of a witness whom I later cross-examined . . . .” (Ginsberg Dec. ¶¶ 14-15.) He also
states that he has no specific recollection of checking his phone during trial, though notes that “it
would not be unusual for me to check my phone for messages or emails during court breaks.”
(Ginsberg Dec. ¶ 16.)
Tucker’s assertion of Ginsberg’s ineffectiveness consists of little more than an
impression that Ginsberg was distracted and insufficiently attentive during trial. He does not
identify the witness who he believed was testifying at the time that Ginsberg purportedly exited
the courtroom or point to any deficiencies in the ensuing cross-examination. To the extent that
Ginsberg was purportedly distracted by his phone, Tucker does not point to any resulting
oversights or errors on the part of Ginsberg. Tucker has not identified any objectively
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unreasonable acts or omissions on the part of Ginsberg arising from the distractions of his
potential conflict, and also has not identified any resulting prejudice.
Though asserted as part of an ineffectiveness claim, Tucker also points to what
are, in essence, legal errors that he believes occurred in connection with the Curcio hearing.
Because these contentions were not raised as part of Tucker’s direct appeal, they are in
procedural default. See Bousley, 523 U.S. at 622. The Court briefly addresses them
nevertheless. First, Tucker suggests that Roth was not well-positioned to advise him on issues of
Ginsberg’s potential conflicts because he was “unprepared and not expecting to take lead in this
case,” and therefore was unable to provide “neutral advice” to assist him in understanding his
options. (ECF 487 at 22-23.) But Tucker does not identify any deficiencies in the waiver advice
that he received from Roth, and confirmed at the Curcio hearing that he understood the issues
pertaining to Ginsberg and had adequate time to review the parties’ letters to the Court. Tucker
also states that the Court did not volunteer the option to stay or continue the trial in order to
permit Roth to prepare to serve as potential lead counsel. (Id. at 22.) But there was no
application to modify the trial schedule in the event that Ginsberg was relieved as counsel, and at
the Curcio hearing, Tucker himself described his decision to proceed with representation from
Ginsberg as “[a]bsolutely, nonnegotiable.” (Curcio Tr. 17.) Tucker also suggests that he was
not timely informed of Ginsberg’s potential conflict, but both Ginsberg’s own attorney and the
government advised the Court in writing of the issue on September 24, 2017. The Curcio
hearing took place on the morning of the next business day after the Court was apprised of the
circumstance. At the Curcio hearing, Tucker implied that he had discussed the issue with
Ginsberg (“I’ve had, again, lengthy discussions with Jim and Lee specifically about that . . . .”

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(Curcio Tr. 16)), which is consistent with Ginsberg’s recollection that he advised Tucker of the
issue early in the trial (Ginsberg Dec. ¶ 9).
In his reply memorandum, Tucker asserts for the first time that Van Ness
performed ineffectively as appellate counsel because she did not appeal any aspect of the Curcio
hearing or Ginsberg’s potential conflicts. The Court in the exercise of discretion declines to
reach the merits of this constitutional claim raised for the first time in Tucker’s reply brief. If the
Court did reach the claim, it would conclude that Tucker’s appellate counsel made the strategic
choice to fully develop Tucker’s arguments concerning the state of mind requirement and the
Court’s instructions to the jury. Separately, because there was no serious argument to be made
concerning the Curcio hearing given Tucker’s level of sophistication and his “nonnegotiable”
stance, he was not prejudiced by the failure to raise the issue on appeal.
Tucker’s ineffective-assistance claim directed to Ginsberg’s potential conflict will
be denied.
III.

Adjudication of Tucker’s Motion Does Not Require a Hearing.
Lastly, the Court notes that nearly all of Tucker’s arguments raise issues of law,

and that an evidentiary hearing is not needed to decide his motion. The only apparent factual
challenge raised by Tucker relates to his assertion that the prosecutors in this case engaged in
some sort of coordination with the FTC in order to effect a restraint on the funds that Tucker had
deposited to pay for his criminal defense. (ECF 487 at 9.) He requests discovery of all
communications between the FTC and the USAO-SDNY. (Id.) He acknowledges that “there is
no direct evidence” of such communications, but cryptically states that “there are indications” of
some cooperation, pointing out that both entities are government actors. (Id.) Tucker points to
no basis to infer coordination or collusion between the FTC and federal prosecutors in regard to

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the asset restraint effected in the District of Nevada. The Court concludes that neither discovery
nor a hearing are warranted.
MUIR’S SECTION 2255 MOTION WILL BE DENIED.
A. Overview of Muir’s Motion.
Muir, who is trained as a lawyer, brings a separate motion under section 2255,
and represents himself pro se. (ECF 493.) Muir was represented at trial by Thomas J. Bath, a
privately retained attorney. Muir separately retained Marc Antony Agnifilo, who filed a notice
of appearance and appeared at some pretrial conferences but did not represent him at trial.
Muir asserts that Bath performed ineffectively at trial for some of the same
reasons urged by Tucker. Muir also asserts that Agnifilo, who he describes as his New Yorkbased local counsel “inexplicably failed to show up at trial, contributing to the deprivation of my
6th Amendment right to the effective assistance of counsel.” (Id.) Muir filed a written waiver of
the attorney-client privilege, and Bath and Agnifilo have declarations in response. (ECF 517-1, 2.) After he filed his initial motion, Muir filed an amend motion that supplemented and
expanded upon his arguments. (ECF 513.) The government’s response addresses both the initial
motion and the amended motion.
B. Muir Does Not Make Out a Strickland Claim Based on
Counsel’s Claimed Failure to Object to the Jury Charge.
Like Tucker, Muir urges that his trial counsel was ineffective because he failed to
preserve an objection to the jury charge on the willfulness element of the RICO charges in
Counts Two through Four. (ECF 500 at 1-8.) In addition to the grounds asserted by Tucker,
Muir notes that the jury requested portions of Muir’s own testimony in which he testified as to
his knowledge about the interest charged by Tucker’s companies, pointing to the wording of the
jury’s note, which read: “Judge, can we get Tim Muir’s transcript, please, October 11, during
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cross-examination, when he stated that he knew that the interest rates were too high.” (ECF 500
at 5-6; Tr. 3333.) Muir urges that the wording of the question demonstrates that he was
prejudiced by the willfulness charge on Counts Two, Three and Four. (ECF 500 at 5-7.)
Muir’s claim directed to the asserted failure to preserve an objection to the stateof-mind charge is not meaningfully different than the claim advanced by Tucker. As the Court
has discussed at length, the Second Circuit concluded that the jury’s guilty verdict on the
conspiracy charged in Count One required a finding that defendants were aware that their
conduct was unlawful. Grote, 961 F.3d at 117. That knowledge that they engaged in unlawful
activity also applied to the substantive counts charged in Counts Two through Four: “Taking into
account the charge as a whole, the jury did find (based on overwhelming evidence of that fact)
that the Defendants were aware of the unlawful nature of the lending scheme.” Id. “The guilty
verdict on Count 1 thus demonstrates that the jury was satisfied beyond a reasonable doubt that
the Defendants acted with the mental state that Defendants argue was required for Counts 2-4.”
Id. at 116. The jury’s request for portions of Muir’s testimony does not alter this analysis.
For the reasons previously discussed in regard to Tucker’s ineffectiveness claim
directed to the jury charge, the Court concludes that Muir has not demonstrated that he was
prejudiced as a result of any claimed failure to preserve an objection to the jury charge.
C. Muir Does Not Make Out a Strickland Claim Based on
Counsel’s Claimed Failure to Seek a Judgment of Acquittal or
New Trial Based on TILA’s Definition of a “Creditor.”
Muir asserts that trial counsel performed ineffectively by not moving for a
judgment of acquittal or a new trial on the TILA counts. He urges that there was no evidence
that he fell within TILA’s statutory definition of a “creditor” under 15 U.S.C. § 1602(g). (ECF
500 at 8-10.)

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Muir, who represented himself on his direct appeal, urged in his brief to the
Second Circuit that he could not fall within TILA’s statutory definition of a “creditor” because
he never extended consumer credit and no consumer debt was payable to him. Supplemental
Brief of Defendant-Appellant Timothy Muir, United States v. Grote, No. 18-184 (2d Cir.
October 5, 2018). The government responded that the Indictment charged Muir as an aider and
abettor, stating: “Muir advised and assisted Tucker, who plainly was a creditor. ‘Whoever . . .
aids, abets [or] counsels’ a federal crime ‘is punishable as a principal.’ 18 U.S.C. § 2. . . . Muir
offers no explanation why he is not guilty as an aider and abettor.” Brief for the United States of
America, United States v. Grote, No. 18-184 (2d Cir. Jan. 4, 2019). The Second Circuit did not
expressly address Muir’s TILA argument but “reject[ed] the Defendants’ further contentions as
frivolous.” Grote, 961 F.3d at 122.
Given the Second Circuit’s description of Muir’s contention as “frivolous,” he
does not now point to any basis to conclude that his trial counsel performed ineffectively or that
he was prejudiced based on his trial counsel’s decision not to move for acquittal or a new trial on
the TILA counts charged in Counts Ten through Fourteen.
D. Muir Does Not Make Out a Strickland Claim
Based on Agnifilo’s Non-Attendance at Trial.
Muir asserts that Agnifilo, who he describes as his local counsel, “inexplicably
failed to show up at trial, which contributed to the deprivation of his right to the effective
assistance of counsel.” (ECF 500 at 11-12.) Muir states that he retained Agnifilo shortly after he
was indicted because his lead trial attorney, Bath, is based in Kansas. (Id.; Muir Dec. ¶ 3 (ECF
513).) Muir states that he expected Agnifilo to be present at trial, and found it “beyond
surprising” when Agnifilo was not present at the final pretrial conference. (ECF 500 at 11-12;
Muir Dec. ¶ 5.) According to Muir, Bath then contacted Agnifilo, and later told Muir without
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explanation that Agnifilo would not be present at trial. (ECF 500 at 11-12; Muir Dec. ¶ 8.) Muir
states “[t]here is no denying that Bath was masterful in examining the witnesses,” but that Bath
was unable “to handle all aspects of the six week-trial” in Agnifilo’s absence. (ECF 500 at 1112.)
Bath and Agnifilo have filed affirmations in response. Agnifilo states that he was
retained as local counsel, and that Muir sought his input at pretrial conferences and certain
meetings. (Agnifilo Aff. ¶¶ 3-4 (ECF 517-2).) This is consistent with Muir’s statement that
Agnifilo was present at arraignment, pre-trial conferences and some strategy sessions. (Muir
Dec. ¶ 4.) Agnifilo states that “several months” before trial, he informed Muir and Bath that he
was scheduled to commence trial in another matter in October 2017 and thus would be
unavailable for Muir’s trial. (Agnifilo Aff. ¶ 5.) He states that “Muir wished me luck” and never
communicated disapproval that he would not be present at trial. (Agnifilo Aff. ¶ 6.) He states
that Muir never asked him to act as trial counsel and that Muir asked him to formally withdraw
from representation after the trial concluded. (Agnifilo Aff. ¶¶ 7-8.)
Bath states that Muir’s assertions concerning Agnifilo are “incorrect.” (Bath Aff.
¶ 6 (ECF 517-1).) He states: “Mr. Agnifilo acted only as local counsel and Mr. Muir consented
to and was aware that Mr. Agnifilo was not going to participate as trial counsel.” (Id.)
Muir does not identify ineffective performance or prejudice based on Agnifilo’s
absence at trial. Muir is a sophisticated individual who is trained as a lawyer, and the evidence at
trial showed him to be skilled in his understanding of litigation. He does not assert that he
directed Agnifilo to attend trial or made further inquiry after being “surprise[ed]” by Agnifilo’s
absence at the final pretrial conference. Muir does not annex any communications or other
records that reflect surprise and frustration with Agnifilo’s absence. No application was made to

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the Court regarding Agnifilo’s availability or any scheduling conflict. Muir also has not
explained how he was prejudiced by Agnifilo’s absence, other than to assert that Bath’s
“handling of the legal issues was deficient . . . .” (ECF 500 at 12.) Muir does not explain how
Agnifilo’s participation could altered the handling of any legal issues or why his absence
rendered the trial unfair or the verdict unreliable. See Henry, 409 F.3d at 63.
E. Muir Does Not Make Out a Strickland Claim as to Bath’s
Legal Research on State-of-Mind Testimony.
Muir asserts that Bath performed ineffectively by failing to conduct adequate
legal research on the “critical issues at trial . . . . .” (ECF 500 at 12-25.) Muir states that he and
Bath “spent a lot of time together” and that he “was significantly more involved in trial
preparations than the average client.” (Id. at 12.) Muir states that he primarily conducted the
initial review of discovery and researched certain legal issues himself. (Id.) He states while he
and Bath sometimes spent more than 15 hours a day working together, “at no time . . . did I
witness Bath conduct any legal research” in connection with the trial. (Id. at 12-13.) Muir states
that Bath’s failure to conduct legal research rendered his performance deficient under Strickland.
(Id. at 13.)
Muir states that his sole defense was a state-of-mind defense premised on the
belief that Tucker’s lending-related activities were lawful. (Id. at 13.) He points to a portion of
the Court’s preliminary charge before the first witness was called, in which the Court stated as
follows:
In a trial the parties to the case are able to advance legal arguments
to the Court, and then the Court formulates the instructions on the
law that govern the case, and that’s the division of labor in a trial
between a judge and a jury and the lawyers. So law will not be a
matter of evidence in the case, the governing legal principles. That
will be something that I will instruct you at the end of the case so

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you will know what the legal principles are that govern the charges
in this case.
(Tr. 85.) According to Muir, this instruction was “extremely disconcerting” because he
considered it a restriction on his ability to testify as to his own state of mind about the lawfulness
of Tucker’s lending businesses. (ECF 500 at 13-14.) Muir explains that he intended to testify
about his interpretation of Supreme Court precedent and federal statutes governing tribal gaming
activities and how they informed his state of mind. (Id. at 14-15.) According to Muir, Bath had
not researched Second Circuit caselaw sufficient to raise an objection to any limitation on Muir’s
testimony about his understandings of federal Indian law as it pertained to gaming. (Id. at 1520.)
During his direct testimony, Muir described the basis for his belief that Tucker’s
lending operations were lawful, including the reliance on tribal affiliations, stating that he spent
“thousands” of hours researching the issue from 2006 to 2013, and considered the substantive
law of tribal sovereign immunity, federal consumer lending, usury and contracts. (Tr. 2673-76.)
Muir stated that he worked with “a big legal team” that included more experienced lawyers, that
he monitored proposed legislation, the actions of federal regulators and lawsuits that touched on
tribal lending. (Tr. 2676-78.) He described monitoring dockets and the role of court dockets.
(Tr. 2678.) He described his close attention to a 2006 lawsuit in Colorado that related to tribal
immunity. (Tr. 2682-84.) Muir testified as to his understandings of tribal sovereignty, the
Indian Commerce Clause contained in the U.S. Constitution, and Congressional abrogation of
tribal immunity. (Tr. 2689-91.) He described how his review of choice-of-law issues informed
his conclusion that, based on the lender’s identity, tribal law would control the lawfulness of the
loans’ interest rates. (Tr. 2691-92.) He also testified to the basis for his belief that the tribes held
“ultimate control” over the loans. (Tr. 2692-93.) He described his attendance at an April 2013
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CLE on tribal lending that, he said, described “the exact model I had been involved with.” (Tr.
2883-85.)
Contrary to the description in his current motion, Muir testified extensively about
how he came to conclude that Tucker’s lending operations were lawful. Outside of the presence
of the jury, the government stated that it had no objection to Muir testifying about his legal
beliefs. (Tr. 2686-87.) The Court responded that it may, throughout trial, instruct the jury that
Muir’s testimony went toward his state of mind but that only the Court would instruct the jury on
the law. (Tr. 2687.)
After Bath asked Muir for an example of Congressional abrogation of tribal
immunity, Muir began to testify about the Indian Gaming Regulatory Act, at which point the
Court stated that “we’re too far afield” and directed Bath to ask his next question. (Tr. 2691.)
Muir states that “the Court sua sponte cut off my testimony” when he began to discuss the
gaming statute, and says the ruling was “devastating” to his state-of-mind defense. (ECF 500 at
14-15.) But no gaming statute was at issue in this case, and under Rule 403, the risk of juror
confusion outweighed any probative value. Muir points to various authorities that allowed for
state-of-mind testimony based on a defendant’s understanding of applicable law, but does not
acknowledge that he testified at length about the sources for his purported good-faith belief that
Tucker’s lending activities were lawful. He has not identified any legal error on the part of Bath
or resulting prejudice based on any purported failure of Bath to conduct further legal research
about state-of-mind testimony.
F. Muir Does Not Make Out a Strickland Claim as to Bath’s
Failure to Cite Section 190.40 of the New York Penal Law.
Muir urges that Bath performed ineffectively by not requesting a jury instruction
incorporating certain language from New York Penal Law section 190.40, which states:
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A person is guilty of criminal usury in the second degree when, not
being authorized or permitted by law to do so, he knowingly
charges, takes or receives any money or other property as interest on
the loan or forbearance of any money or other property, at a rate
exceeding twenty-five per centum per annum or the equivalent rate
for a longer or shorter period.
The Court instructed the jury that “[i]n New York, the highest enforceable rate of interest on
consumer loans is 25 percent per year, and loans above that rate are usurious and unenforceable.”
(Tr. 3292.) Counsel to Tucker requested that the instruction state, “In New York, except as
otherwise provided, authorized, or permitted by law, the highest enforceable rate of interest on
consumer loans is 25 percent per year . . . .” (Tr. 2574; emphasis added.)
The Court declined to incorporate the language proposed by Tucker, stating:
I would charge it if you could point me to a relevant exception, and
then I would charge the jury on that relevant exception, so I would
say “otherwise permitted by law,” and then I would say, “Law
permits it if the following circumstances are met,” and then I would
charge that. But in the absence of that, the instruction is correct.
(Tr. 2575.) This ruling came shortly after a discussion of Michigan v. Bay Mills Indian
Community, 572 U.S. 782, 795-97 (2014), which distinguished the concept of legal immunity
from a lawsuit afforded to a tribe as an entity from “the many other powers” that a state may
enforce in its dealings with a tribe, such as seeking injunctive relief against individual tribal
officials. (See Tr. 2568-69.) Discussing Bay Mills, the Court observed that “[t]hey [i.e., tribes]
can’t be prosecuted under the criminal usury statute. That is not the equivalent of saying that the
New York rate is unenforceable on a loan by a tribe. Those are two different things.” (Id.) Bath
then spoke on the record, urging that absent Congressional abrogation, tribal sovereignty
permitted tribes to “pass the law” setting a separate usury rate. (Tr. 2569.) Again referencing
Bay Mills, the Court observed that the “opinion is rather helpful” because it “makes the point

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that the conduct doesn’t become lawful . . . . It’s just the tribe is immune. That’s all.” (Tr.
2573.)
Muir now urges that Bath misapprehended section 190.40 because the statute
makes it the government’s burden to prove that interest rate was not “authorized or permitted by
law” and is not a burden carried by the defendant, akin to an affirmative defense. (ECF 500 at
22.)
As with the contention about his status as a TILA creditor, Muir raised his
understanding of section 190.40 in his direct appeal to the Second Circuit, stating that the Court
“refused” to instruct the jury on the “authorized or permitted by law” language contained in the
statute. (Brief of Defendant-Appellant Timothy Muir at 57-65, United States v. Grote, No. 18184 (2d Cir. July 25, 2018).) As with Muir’s TILA argument, the Second Circuit did not
expressly address his argument about section 190.40, but characterized “Defendants’ further
contentions as frivolous.” Grote, 961 F.3d at 122.
Muir does not identify ineffectiveness or resulting prejudice relating to Bath’s
approach to section 190.40. Trial counsel to both Tucker and Muir urged that the jury charge
incorporate the language emphasized in Muir’s motion. The issue was litigated by counsel at
trial and raised on appeal. While Muir now offers an additional reason as to why the language
should have been included, any failure to emphasize this reading of the statute was not
professionally unreasonable. See Henry, 409 F.3d at 63.
Muir also does not show prejudice. The Second Circuit described his contention
as “frivolous.” Grote, 961 F.3d at 122. As has been discussed at length, it also concluded that
the government “presented overwhelming evidence that Defendants were aware of the unlawful
nature of the loans,” including the “sham illusion that the lending was done by Native American

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tribes, precisely so that state usury laws would not seem to apply.” Id. at 117. The jury’s guilty
verdict on Count One necessarily found that defendants acted with the knowledge Tucker’s
lending companies were not authorized or permitted by law to make loans at usurious rates.
Muir therefore cannot demonstrate prejudice based on the language’s omission from the jury
charge.
G. Muir Does Not Make Out a Strickland Claim as to the
Cumulative Effect of Bath’s Performance at Trial.
Muir’s Amended Petition asserts that Bath’s purported errors cumulatively
prejudiced him to the extent that a new trial is warranted. (ECF 513.) A Strickland analysis can
weigh the cumulative effect of attorney errors “in the aggregate.” Lindstadt v. Keane, 239 F.3d
191, 199 (2d Cir. 2001). He asserts that Bath’s “deficient performance directly prejudiced 12 of
the 14 counts the jury considered,” which “undoubtedly” altered the outcome of the trial. (ECF
513 at 10-12.) For the reasons previously discussed, Muir has not identified prejudice
attributable to Bath’s performance, and the motion for section 2255 relief based on cumulative
prejudice will be denied.
TUCKER’S MOTION FOR A SENTENCE REDUCTION PURSUANT TO 18 U.S.C. §
3582(c) WILL BE DENIED.
Tucker separately moves for a sentence reduction under 18 U.S.C. § 3582(c),
principally urging that he should be permitted to serve the remainder of his sentence on home
confinement in order to care for his elderly and ailing mother. (ECF 504, 515, 524.) Tucker also
points to the difficult conditions of his incarceration during the Covid-19 pandemic, his
proximity to acts of violence committed by other inmates and the rehabilitative effects of his
incarceration.

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The government has not submitted a response to Tucker’s motion. Tucker is
represented by counsel on this section 3582(c) motion.
Provided that the exhaustion requirement is met, a court may reduce a defendant’s
sentence if it finds that “extraordinary and compelling reasons warrant such a reduction.” 18
U.S.C. § 3582(c)(1)(A)(i). Tucker states that he applied for a sentence reduction to the assistant
warden of his facility on December 13, 2022 and to the warden of his facility on December 27,
2022, and that both requests were denied. He annexes his applications, which cited to his
mother’s stage 4 congestive heart failure and her testing positive for Covid-19. (ECF 504-8, -9, 10.) The Court concludes that Tucker has exhausted his administrative remedies.
“Before it can reduce a term of imprisonment or release a defendant under §
3582(c)(1)(A), a district court must ‘find[ ] that . . . extraordinary and compelling reasons
warrant such a reduction.’” United States v. Jones, 17 F.4th 371, 374 (2d Cir. 2021) (quoting 18
U.S.C. § 3582(c)(1)(A)(i)). District courts have “broad discretion” when considering such
motions and are free to “consider the full slate of extraordinary and compelling reasons that may
warrant an imprisoned person’s release.” United States v. Amato, 48 F.4th 61, 66 (2d Cir. 2022)
(quotation marks omitted). “The only statutory limit on what a court may consider to be
extraordinary and compelling is that ‘[r]ehabilitation . . . alone shall not be considered an
extraordinary and compelling reason’” for sentence reduction. United States v. Brooker, 976
F.3d 228, 237-38 (2d Cir. 2020) (quoting 28 U.S.C. § 994(t)) (emphasis in original).
The Sentencing Commission issued an updated policy statement in November
2023 as to extraordinary and compelling reasons to grant a motion for sentence reduction,
including a defendant’s family circumstances. U.S.S.G. § 1B1.13. This includes “[t]he
incapacitation of the defendant’s parent when the defendant would be the only available

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caregiver for the parent.” Id. § 1B1.13(b)(3)(C). Even so, section 3582(c) “only authorizes
release where the family circumstances are truly ‘extraordinary and compelling,’ and not merely
the inevitable circumstances families face when a family member is incarcerated. Being
separated from your wife and children and unavailable to care for aging parents are but two of
the sad and inevitable consequences of incarceration.” United States v. John, 2020 WL 6581217,
at *2 (S.D.N.Y. Nov. 10, 2020) (McMahon, J.).
In a declaration, Tucker states that his 86-year-old mother Norma “is extremely ill
and has no one to care for her other than me.” (Tucker Dec. ¶ 11(a) (ECF 504-18).) He states
that his mother lives alone and cannot afford in-home care or a nursing home. (Id. ¶ 11(b).) He
states that she had three sons, including one who is now deceased, and that Tucker and a second
brother are both incarcerated. (Id. ¶ 11(c).) Tucker has submitted a declaration from Chris
Becker, a family friend who states that he “check[s] on” Norma Tucker daily but is unable to
provide the around-the-clock care that he believes she needs. (Becker Dec. ¶ 6 (ECF 504-14).)
Tucker’s counsel later supplemented the application to report that Tucker’s
mother had been the victim of a fraud that caused her to transfer $2,910 to a person falsely
posing as Tucker’s probation officer, which heightened Tucker’s concern for her welfare. (ECF
515.) An additional letter reported that Tucker’s mother had suffered two falls, resulting in a
broken arm and three broken ribs. (ECF 524.) That letter annexes a declaration from Norma
Tucker, who states that she lives alone, has Stage IV heart disease and recently suffered two
falls. (N. Tucker Dec. ¶¶ 2, 4 (ECF 524).) She states that she also suffers from COPD, arthritis,
high blood pressure and likely from an untreated kidney disease. (Id. ¶ 6.) She states that it is
her “deepest wish” to be cared for by her son. (Id. ¶ 7.)

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Tucker cites to other circumstances that he characterizes as extraordinary and
compelling. He notes that during the time he was incarcerated at the BOP facility in
Leavenworth, Kansas, he was on lockdown for nearly 24 hours a day for 48 months due to
Covid-19 and inmate violence. (Tucker Dec. ¶ 4.) Tucker states that he feared for his safety
because of his proximity to violent offenders. (Id. ¶ 5.) Tucker points to evidence of his
rehabilitation, stating that he has mentored inmates, taught them “to embrace a positive mindset,”
take responsibility for their actions and acquire useful skills. (Id. ¶ 7.) He annexes declarations
and letters of support from current and former inmates Sierra Thompson, Albert Banks, Anthony
Thompson, Jefferey Honeyball, Serge Francois and Robert Williams, who describe Tucker as a
mentor and source of encouragement. (ECF 504-1 to -7.) The submissions variously cite to
Tucker improving their financial literacy, offering book recommendations and encouraging them
to maintain a positive outlook on life while accepting responsibility for their past mistakes. (See
id.) Some of the submissions point to Tucker’s devotion to his family and spiritual faith. (See
id.)
Tucker states that if his motion is granted, he will submit to any conditions placed
upon him, including house arrest and electronic monitoring. (Tucker Dec. ¶ 13.)
The Court is heartened by Tucker’s description of his constructive use of time in
BOP custody. It also is sympathetic to Tucker’s concerns about his mother’s welfare, as well as
his mother’s heartfelt desire to be attended by her son while in ill health. 3
Tucker has not demonstrated that he “would be the only available caregiver for
the parent.” U.S.S.G. § 1B1.13(b)(3)(C). “[C]ourts generally require a showing of evidence
from several sources indicating that the defendant is the only available caregiver for a family
Tucker’s Presentence Report referenced the care that he provided to his grandmother in 1985 following the death
of his father. (PSR ¶ 116.) The Court credits the sincerity of Tucker’s desire to assist his mother.

3

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member in dire conditions before concluding that an extraordinary and compelling reason has
been established.” United States v. Lindsey, 2021 WL 37688, at *3 (S.D.N.Y. Jan. 4, 2021)
(Swain, J.). Tucker, who is represented by counsel and has the burden to demonstrate
extraordinary and compelling circumstances, does not identify additional family members, their
locations, or why those individuals are less available to provide care and assistance than Tucker,
who is an incarcerated person. See, e.g., United States v. Castro, 2024 WL 1252127, at *3 n.9
(S.D.N.Y. Mar. 25, 2024) (denying motion where defendant failed to corroborate that he was the
only available caregiver) (Wood, J.); United States v. Romano, 2023 WL 8735203, at *3
(E.D.N.Y. Dec. 19, 2023) (denying motion because defendant failed to explain
“whether . . . friends in the community, or relatives other than his siblings . . . would have the
time, money, and resources” to assist ailing relative) (Matsumoto, J.); United States v. Burrell,
2020 WL 7646887, at *3 (S.D.N.Y. Dec. 23, 2020) (noting availability of other family members
to care for defendant’s grandmother) (Nathan, J.). Based on the PSR, it appears that Tucker’s
own children are now young adults (PSR ¶¶ 87-88), but he does not explain why they are
unavailable to assist. See United States v. Nguyen, 2023 WL 8368855, at *6 (S.D.N.Y. Dec. 4,
2023) (citing defendant’s failure to explain why his own children were unavailable to act as
caregivers) (Cronan, J.); United States v. Rodriguez, 2024 WL 1464661, at *3 (S.D.N.Y. Apr. 4,
2024) (“inconvenience” to family members does not support a sentence reduction) (Torres, J.).
Norma Tucker states that she cannot afford to pay for in-home assistance or entry
in an assisted-living facility. (N. Tucker Dec. ¶ 8.) But, other than this conclusory assertion,
Tucker’s submissions include no evidence about his mother’s finances and ability to pay for
care. By contrast, his mother has submitted some medical records that reflect on her health

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conditions. The absence of evidence about Norma Tucker’s limited finances also weighs against
the application.
Additionally, while the Court affords weight to Norma Tucker’s advanced age
and ailments, there is some indication in the record that aspects of her conditions may be
manageable or temporary. A 2022 written assessment from a medical provider states, “I
discussed with the patient that I think her symptoms are due to post COVID infection and
respiratory infection.” (ECF 504-12 at 5.) The notation recommended at-home oxygen
treatment and alterations to her nebulizer use. (Id.) Notes from that same visit state, “She
wanted to know if I could write a letter indicating that she needed medical assistance that her son
who is [sic] business was interrupted might be able to stay with her.” (Id. at 4.) It later stated, “I
told the patient I would write a letter for her although I could not promise of what benefit it will
be.” (Id. at 5.) Thus, while the record indicates that Norma Tucker is dealing with serious agerelated health conditions, and would likely benefit from additional care, it falls somewhat short
of demonstrating incapacitation that amounts to an extraordinary and compelling circumstance.
Separately, the difficult conditions of Tucker’s confinement during the Covid-19
pandemic do not rise to the level of extraordinary and compelling circumstances that warrant a
sentence reduction. See, e.g., United States v. Davidson, 2024 WL 3518378, at *3 (S.D.N.Y.
July 23, 2024) (Berman J.). As noted, rehabilitation alone cannot be an extraordinary and
compelling circumstance that warrants a sentence reduction.
Even if Tucker had demonstrated extraordinary and compelling circumstances, his
motion would be denied based on the section 3553(a) factors. The Guidelines calculation for
Tucker was presented by the Office of Probation as single figure of 2,220 months’ imprisonment,
or 185 years. (PSR ¶ 144; Sentencing Tr. 6 (ECF 331).) Tucker’s counsel urged a sentence of

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15 years. (Id. 11-12.) The government did not seek a Guidelines sentence and urged that Tucker
be sentenced to at least twenty years, noting the duration of Tucker’s unlawful activity and the
number of victims. (Id. 17.)
In its statement of reasons, the Court noted the offenses’ “utmost seriousness as a
financial fraud.” (Id. 19.) Borrowers paid approximately $1.3 billion in unlawful overpayments,
a figure that the Court called “staggering.” (Id. 26.) The Court described “a scheme to extract
money from people in desperate circumstances” that was carried out for approximately 15 years.
(Id. 20.) The scheme affected 4.65 million different customers, which was more than one
percent of the U.S. population. (Id. 26.) The Court summarized the testimony of victims who
testified at trial, noting that Tucker’s lending scheme caused “heartbreak and sorrow” that was
“not just a financial loss.” (Id. 22-23.)
The Court noted that Tucker had a history of lying to officials and concealing
past crimes. (Id. 21-22.) It described Tucker’s reliance on tribal immunity as “a scheme and a
racket, a fraud.” (Id. 23.) The Court reviewed the sham nature of the tribes’ participation in
Tucker's loans. (Id. 23.) It contrasted the trial evidence with the written sentencing submission
that Tucker file on his own behalf, which characterized his criminal scheme as a family business
that operated transparently. (Id. 19-20.) In reviewing Tucker’s sentencing submission, the Court
noted that while Tucker began by expressing remorse, it became “apparent” that Tucker did
“really not have any acceptance of the fact that his conduct was criminal.” (Id. 19.) The Court
quoted passages in which Tucker stated, “I am remorseful, your Honor, for having failed to
accurately display, convey, and live up to the vision I had. I am remorseful, your Honor, to have
left a single person with the misperception that I do not recognize my responsibility to live as a
good and fair businessman, employer and American citizen.” (Id. 19-20.) Tucker also stated, “It

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would have been more believable that we're all going to contract some type of Old Testament
disease like leprosy than for anyone to believe that we were engaged in any type of illicit
business venture.” (Id. 20.) The Court also noted Tucker’s previous convictions for financial
crimes based on fraud and misrepresentation, including a fraudulent lending operation that
marketed itself as “Chase Morgan Stearns and Lloyd.” (Id. 24-26.)
The Court sentenced Tucker principally to 200 months’ imprisonment, a term
lower than the twenty years sought by the government. (Id. 26-27.) Tucker has a projected
release date of April 9, 2031. 4 He was remanded to BOP custody at the conclusion of his
sentencing hearing on January 5, 2018. (Minute Entry, 1/5/18.) He has served approximately
49% of his total term of imprisonment.
The section 3553(a) factors weigh against Tucker’s application. The need for just
punishment, the seriousness of the offense, the history and characteristics of the defendant and
the need to protect the public all disfavor a sentencing reduction. Tucker has engaged in fraud
schemes for much of his adult life and he has a demonstrated history of intransigence toward
courts and regulatory authorities. Tucker’s statement to the Court at the sentencing hearing
displayed not only a lack of remorse, but an unwillingness to acknowledge responsibility for the
unlawful character of his lending scheme, blaming himself principally for fostering a
“misperception.” Tucker’s blitheness stood in marked contrast to the trial testimony of his
victims, as well the evidence of the many deceptions used to falsely hold out his companies as
tribal entities. As detailed throughout this Opinion and Order, the lending scheme at issue was
sweeping and intricate. And Tucker’s decision to engage in criminal activity following two

4

https://www.bop.gov/inmateloc/

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earlier convictions underscores the need to protect the public from the defendant, promote
respect for the law and advance just punishment.
Tucker’s motion for a sentence reduction pursuant to 18 U.S.C. § 3582(c) will be
denied.
CONCLUSION.
The motions of Scott Tucker and Timothy Muir brought pursuant to 28 U.S.C. §
2255 are DENIED. Tucker’s motion for a sentence reduction pursuant to 18 U.S.C. § 3582(c) is
DENIED. The Clerk is respectfully directed to terminate the motions (ECF 486, 493, 504, 513)
and to close the civil cases docketed at 22-cv-1470 (PKC) and 22-cv-8745 (PKC).
Tucker and Muir have not made a substantial showing of the denial of a
constitutional right, and accordingly, a certificate of appealability will not issue. 28 U.S.C. §
2253; see Blackman v. Ercole, 661 F.3d 161, 163-64 (2d Cir. 2011). The Court certifies,
pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this order would not be taken in good
faith and therefore in forma pauperis status is denied for the purpose of an appeal. See Coppedge
v. United States, 369 U.S. 438, 444-45 (1962).
SO ORDERED.

Dated: New York, New York
August 28, 2024

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