Case 1:16-cr-00091-PKC Document 530 Filed 08/28/24 Page 1 of 63
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`Petitioner,
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
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`UNITED STATES OF AMERICA,
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`SCOTT TUCKER and TIMOTHY MUIR,
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`Defendants.
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`SCOTT TUCKER,
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`UNITED STATES OF AMERICA,
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`Respondent.
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`TIMOTHY MUIR,
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`-against-
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`Petitioner,
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`UNITED STATES OF AMERICA,
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`Respondent.
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`CASTEL, U.S.D.J.
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` 16-cr-91 (PKC)
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` OPINION AND ORDER
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` 22-cv-1470 (PKC)
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` 22-cv-8745 (PKC)
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`Defendants Scott Tucker and Timothy Muir move to vacate, set aside or correct
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`their respective sentences pursuant to 28 U.S.C. § 2255. (ECF 486, 493.) Tucker separately
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`moves for a sentence reduction for “extraordinary and compelling reasons” pursuant to 18 U.S.C.
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`§ 3582(c)(1)(A). (ECF 504.) Tucker is represented by retained counsel, and Muir, who was
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`trained as a lawyer, represents himself pro se.
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`Case 1:16-cr-00091-PKC Document 530 Filed 08/28/24 Page 2 of 63
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` The Court will first address defendants’ motions for relief under section 2255
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`and then address Tucker’s motion for a sentence reduction. For the reasons that will be
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`explained, the motions will be denied.
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`BACKGROUND.
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`A Superseding Indictment charged Tucker and Muir with fourteen counts relating
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`to an unlawful payday-lending scheme that sought to evade state usury laws through sham
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`arrangements with Native American tribes. (ECF 114.) Count One charged defendants with
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`conspiracy to collect unlawful debt in violation of the Racketeering Influenced and Corrupt
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`Organizations Act (“RICO”), 18 U.S.C. § 1962(d). (Id. ¶¶ 1-36.) Counts Two through Four
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`charged them with the substantive RICO violations of collection of unlawful debts. 18 U.S.C. §
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`1962(c). (Id. ¶¶ 37-45.) Count Five charged conspiracy to commit wire fraud and Count Six
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`charged the substantive crime of wire fraud, in violation of 18 U.S.C. §§ 1349, 1343 and 2. (Id.
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`¶¶ 46-50.) Count Seven charged money laundering conspiracy, Count Eight charged promotion
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`money laundering, and Count Nine charged concealment money laundering, in violation of 18
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`U.S.C. §§ 1956(h), 1956(a)(1)(A)(i), 1956(a)(1)(B)(i) and 2. (Id. ¶¶ 51-58.) Counts Ten through
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`Fourteen charged false disclosures under the Truth in Lending Act (“TILA”), in violation of 15
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`U.S.C. §§ 1611 and 2. (Id. ¶¶ 59-63.)
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`Trial commenced on September 11, 2017. The following is an overview of the
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`evidence demonstrating defendants’ years-long scheme to deceive customers and regulators
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`about the costs of their loans and the true ownership of Tucker’s money-lending businesses.
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`The government presented evidence that in or around 2000, Tucker began
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`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,
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`generating $3.5 billion in revenue and $1.31 billion in profits. (Tr. 1258, 1686, 1696.)
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`Tucker first began making loans through websites with names like “500
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`FastCash,” “Telecash” and “Ameriloan,” which, while held out to the public as separate
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`businesses, were controlled by Tucker and administered by the same employees working from a
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`common building. (Tr. 700, 703-12, 719-22.) The loans made by Tucker’s businesses utilized
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`similar structures. For each $100 received by a borrower, a $30 interest charge was debited from
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`the borrower’s bank account on the following payday, none of which was applied toward the
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`loan’s principal, and the loan was “automatically renewed.” (Tr. 173-79.) The cycle of $30
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`debits and “automatic renewals” continued for five paydays, at which point, another $50 was
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`debited and applied to the principal, and a separate $30 debit was applied to interest. (Id.) A
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`loan of $300 would require repayment of $975, with interest comprising $675 of that total. (Tr.
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`109, 183-85; GX 1911.) While annual interest rates on the loans varied, they often exceeded
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`600%, which significantly exceeded the permissible statutory maximums set by state usury laws.
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`(GX 1501, 1503, 2303, 2701.) Customers and state agencies regularly complained to Tucker’s
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`employees that the loans violated state laws. (Tr. 211-24, 696-97, 758-72.)
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`The loan structure was never disclosed to borrowers, though a payment schedule
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`was shown in a chart used to train new employees. (Tr. 175.) TILA requires disclosure using a
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`“TILA Box,” which lists basic information that includes the total amount of expected payments.
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`The TILA Box shown to customers of the Tucker-controlled businesses falsely showed a total-
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`payment amount of $390. (GX 2701.) Tucker’s managers understood the TILA Box to be false.
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`(Tr. 184, 751.)
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`The automatic-renewal process was described in intricate language using fine
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`print. (Tr. 95, 369-70.) Tucker’s businesses endeavored to reduce the number of borrowers who
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`quickly repaid their loans in full, because repeat payments through the automatic-renewal
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`process were more profitable. (Tr. 191-97, 747-49.) Borrowers testified that they were surprised
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`to learn the repayment terms and the total amounts owed, and one of Tucker’s employees
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`testified that the companies kept tallies and summaries of customer complaints, which were
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`discussed at meetings. (Tr. 99, 141-42, 212, 368-70, 668.) A former customer testified to
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`paying $1,855 to a Tucker entity for a loan of $600, and described how his telephone interaction
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`with customer service caused him greater confusion and anxiety. (Tr. 1667-68.) He explained
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`why the online loan application caused him to believe that he would owe total repayment of
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`$780. (Tr. 1665-66.)
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`Tucker orchestrated schemes to conceal the origins of these loans and his
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`ownership of the businesses. From 1998 to 2004, he routed loans through a nationally chartered
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`bank located in Delaware because Delaware does not limit the interest rates charged on a loan,
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`even though Tucker continued to operate his business entirely from Overland Park, Kansas. (Tr.
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`397-406, 417-441, 720, 735.) Certain agreements between Tucker and the Delaware bank
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`misrepresented the nature of their relationship, which ultimately ended because the bank limited
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`Tucker’s “automatic renewal” practice and Tucker was dissatisfied with the bank’s cut of the
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`proceeds. (Tr. 449-50, 745-53, 1351-52, GX 101, 102, 103.)
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`Tucker also formed a series of shell companies in Nevada to conceal the
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`ownership of his businesses, using d/b/a aliases. (Tr. 447-48, 707, 921.) During this time,
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`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
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`presence. (Tr. 911-22, 933-50, 782-86, 1353.)
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`Around 2003, Tucker began to implement a sweeping scheme to misrepresent his
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`businesses as being owned and operated by three Native American tribes: the Miami Nation of
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`Oklahoma, the Modoc Nation of Oklahoma and the Santee Sioux Tribe of Nebraska. (Tr. 997,
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`1411, 1339.) Each tribe claimed to own one or more of the companies previously associated
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`with the Nevada shell companies. (GX 817, 1727, 2615.) Each tribe received 1% of the revenue
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`earned from the Tucker business that the tribe falsely claimed to own. (GX 302, 801, 1204; Tr.
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`1465, 1902.) However, Tucker provided all capital for the loans, bore the risks of repayment,
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`and administered the loans from his office in Overland Park, Kansas. (Tr. 294-95, 344, 1038,
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`1052-53, 1416-18, 1435, 1446-47.) Tucker also created bank accounts in the Tribes’ names for
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`the purpose of handling cashflow from the lending businesses, but personally retained control of
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`those accounts and used them for personal expenses that included race cars, a private jet and a
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`home in Aspen. (Tr. 294-95, 344, 1038, 1052-53, 1416-18, 1435, 1446-47, 1720, 2160; GX
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`3551, 3552.)
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`Beginning in 2005 or 2006, Muir began acting as general counsel to Tucker and
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`the entities under his control. (Tr. 691-93.) In or around 2008, he formed the Muir Law Firm,
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`though his pay from Tucker remained unchanged, and he was required to obtain Tucker’s
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`permission to work for other clients. (Tr. 2716-17 & GX 2601-02.) Employees of Tucker’s
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`businesses continued interacting with Muir as if he were general counsel. (Tr. 165, 215, 691,
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`1195.)
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`The government presented evidence that tribal involvement not only was intended
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`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
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`Williams, who was recording secretary on the boards of Tucker’s companies, described the
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`arrangements as “a rent-a-tribe situation.” (Tr. 1096.) When state authorities attempted to
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`enforce state laws on Tucker’s businesses, Muir and other legal counsel invoked tribal immunity,
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`including through the submission of sham affidavits to state courts signed by tribal officials. (Tr.
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`1056-66, 1461-67.) The companies also cited to tribal immunity when confronted by customer
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`complaints, responding that state laws did not govern because the loans were issued by a tribe.
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`(Tr. 100 (“It seemed like the standard response to any of my questions was sovereign nation.”),
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`144-45 (“They told me that they were part of a sovereign nation and not subject to U.S.
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`law . . . .”), 767-78, 1668-69.)
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` Tucker employed various methods to misrepresent the lending companies as
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`tribal entities, including the use of tribal mailing addresses, from which mail was forwarded
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`unopened to Overland Park; directives to Overland Park employees to falsely claim they were
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`located on tribal land; and providing employees with daily weather reports for the tribal
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`reservations in order to more persuasively misrepresent the operation over the phone. (Tr. 617,
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`1031, 203-10, 786; GX 1408, 1903-04, 1906-09.) Employees who revealed their true location
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`were terminated. (Tr. 205-06.) Each day, tribal officials logged into a tablet to nominally
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`approve loans, an action that had no effect on whether the businesses controlled by Tucker
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`actually issued the loans. (Tr. 1267-68.) Tribes also formed corporate boards to purportedly
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`exercise control over the Tucker-controlled companies, but the boards rarely met and exercised
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`no control over the companies. (GX 310, 406-T, 502.) Tucker had the authority to transfer the
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`companies between tribes at will, and, in an email, stated that he controlled the tribes. (Tr. 2802-
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`03; GX 1014, 2806.)
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`In 2008, Tucker and Muir engaged in a sham transaction to nominally transfer
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`Tucker’s loan-processing company to the Miami Nation of Oklahoma for $135,259. (Tr. 1088-
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`89.) In this transaction, Tucker changed the name of that company from “CLK” to “AMG”
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`using a bank account that he controlled, which had the effect of Tucker paying himself to acquire
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`a company that he already owned. Muir then commenced a sham lawsuit in which Tucker sued
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`AMG under a Kansas statute, seeking a court order compelling the Kansas Secretary of State to
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`accept a certificate of filing related to the transaction. (Tr. 1209-31.) Muir paid counsel
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`representing Tucker, and Tucker reimbursed Muir using a check drawn from an AMG account,
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`meaning that AMG had paid for its own adversary’s counsel. (GX 2623, 2602.)
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`After Muir’s success in a different state court proceeding, Tucker gave him as a
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`gift a decommissioned military tank, inscribed with the letters “FUMAGFST,” which stood for
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`“FU, Mr. Attorney General, from Scott Tucker.” (Tr. 1295-96.)
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`Tucker called six witnesses in his defense, including the current and former chiefs
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`of the Miami tribe. (Tr. 1752-2162.) Muir testified in his own defense, and on cross-
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`examination agreed that he knew that Tucker’s companies charged hundreds of percent in annual
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`interest to borrowers around the country, including in states with usury limits of less than 50
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`percent a year. (Tr. 2901-02.) He agreed that the companies “entered into relationships with
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`Indian tribes” “[b]ecause of those laws, yes.” (Tr. 2904.)
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`On October 13, 2018, the jury returned a verdict of guilty against defendants
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`Tucker and Muir on all fourteen counts. On January 5, 2018, the Court sentenced Tucker
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`principally to 200 months of imprisonment and Muir to 84 months of imprisonment. The Bureau
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`of Prisons website indicates that Muir was released from custody on February 17, 2023. Tucker
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`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.
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`Grote, 961 F.3d 105 (2d Cir. 2020). Tucker was represented on appeal by Beverly Van Ness,
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`and Muir submitted a pro se brief on his own behalf. They principally urged that the Court gave
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`an erroneous and prejudicial instruction to the jury as to the mental state required for unlawful-
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`debt charges brought under RICO. Id. at 113-21. Applying plain-error review, the Second
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`Circuit observed that the government “presented overwhelming evidence that Defendants were
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`aware of the unlawful nature of the loans,” including the “sham illusion that the lending was
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`done by Native American tribes, precisely so that state usury laws would not seem to apply.” Id.
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`at 117. In light of the “overwhelming” evidence, the Second Circuit explained that it did not
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`need to resolve conflicting lines of authority as to RICO’s state-of-mind requirement for the
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`collection of lawful debt. Id. at 117-21. The Second Circuit concluded that the remaining
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`arguments of Tucker and Muir were without merit, including arguments that the Court erred by
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`precluding defendants’ proposed expert on tribal immunity, that there was insufficient evidence
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`to support their convictions of wire fraud, and that the loans could not constitute unlawful debt
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`under RICO. Id. at 121-22. The Supreme Court denied defendants’ petition for certiorari.
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`Tucker v. United States, 141 S. Ct. 1445 (2021).
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`LEGAL STANDARD.
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`A person in federal custody may collaterally attack a final judgment in a criminal
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`case based on “a constitutional error, a lack of jurisdiction in the sentencing court, or an error of
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`law or fact that constitutes a fundamental defect which inherently results in complete miscarriage
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`of justice.” Graziano v. United States, 83 F.3d 587, 589-90 (2d Cir. 1996) (quotation marks
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`omitted). Review of a section 2255 motion “is ‘narrowly limited in order to preserve the finality
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`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
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`hearing, the motion must set forth specific facts supported by competent evidence, raising
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`detailed and controverted issues of fact that, if proved at a hearing, would entitle him to relief.”
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`Gonzalez v. United States, 722 F.3d 118, 131 (2d Cir. 2013).
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`A defendant is in procedural default if a claim raised in a section 2255 motion
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`was not first raised in a direct appeal. See Bousley v. United States, 523 U.S. 614, 622 (1998).
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`However, “[a] defendant can raise new arguments in a § 2255 motion if the defendant establishes
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`(1) cause for the procedural default and ensuing prejudice or (2) actual innocence.” United
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`States v. Pena, 58 F.4th 613, 621 (2d Cir. 2023) (quotation marks omitted).
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`TUCKER’S SECTION 2255 MOTION WILL BE DENIED.
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`I.
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`Tucker Is Not Entitled to Section 2255 Relief Based on the Claimed
`Denial of His Choice of Counsel under the Sixth Amendment.
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`A. Overview of Tucker’s Choice of Counsel Claims.
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`Tucker asserts that he should receive a new trial because he was tried, convicted
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`and sentenced after being deprived of the right to be represented by counsel of his choosing in
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`violation of the Sixth Amendment. See generally United States v. Stein, 541 F.3d 130, 154-57
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`(2d Cir. 2008).
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`Tucker’s claimed constitutional injury stems from an asset freeze ordered by the
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`district court of the District of Nevada in FTC v. AMG Services, Inc., et al., 12 Civ. 536 (D.
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`Nev.) (the“ Nevada FTC Action.”). That order, which was issued in a civil proceeding brought
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`by the Federal Trade Commission (the “FTC”) against Tucker and related parties, had the effect
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`of freezing $7 million that Tucker had deposited into a joint escrow account for the purpose of
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`funding his retained counsel in this case, Paula Junghans and Paul Schechtman, then of the law
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`firm Zuckerman Speader LLP.
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`Approximately seven weeks after Schechtman first advised this Court that Tucker
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`was no longer able to pay for attorneys’ fees or the services required from an outside vendor, the
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`Court granted the motions to withdraw brought by Schechtman and Junghans. Pursuant to the
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`CJA Act, the Court appointed four attorneys to represent Tucker through trial: Lee Alan
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`Ginsberg, James Roth, Beverly Van Ness and Nadjia Limani. The withdrawal of Tucker’s
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`retained counsel and the appointment of CJA counsel took place approximately four months after
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`the indictment was filed and fifteen months before trial.
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`On December 3, 2018, the Ninth Circuit affirmed the relief ordered by the District
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`of Nevada, with two members of the panel writing a concurrence explaining that the decision
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`adhered to Ninth Circuit precedent that appeared to have been wrongly decided. FTC v. AMG
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`Cap. Mgmt., LLC, 910 F.3d 417, 429-37 (9th Cir. 2018). The Supreme Court granted Tucker’s
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`petition for certiorari, and, in April 2021, unanimously reversed the Ninth Circuit, holding that
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`section 13(b) did not authorize a court to order monetary relief, and exclusively allowed for
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`prospective injunctive relief. AMG Cap. Mgmt., LLC v. FTC, 593 U.S. 67 (2021). Tucker
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`urges that the relief ordered in Nevada FTC Action led to the withdrawal of his retained counsel
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`against his wishes, resulting in the denial of his right to be represented by counsel of his
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`choosing.
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`Tucker asserts that his attorneys performed ineffectively in regard to the
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`withdrawal of Junghans and Schechtman. First, he urges that both retained and appointed
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`counsel performed ineffectively by not raising a challenge to the asset freeze order entered in the
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`Nevada FTC Action, in either this Court or in the District of Nevada. Second, he urges that his
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`appointed counsel performed ineffectively by not filing a motion to reconsider this Court’s order
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`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
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`of the counsel of his choosing on direct appeal to the Second Circuit. Fourth, he urges that
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`retained counsel was ineffective in failing to structure Tucker’s payment of a $7 million advance
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`on attorneys’ fees in a manner that could have shielded the payment from any asset freeze
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`obtained by the FTC. Finally, Tucker has argued that he is entitled to a new trial because the
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`relief ordered in the Nevada FTC Action prevented him from proceeding to trial with his choice
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`of counsel, which he describes as a “structural error” that exempts him from the obligation to
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`show cause and prejudice in order to excuse his procedural default. As will be shown, a claim of
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`“structural error” not raised on direct appeal but first raised on collateral review is subject to the
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`cause and prejudice requirement to excuse a procedural default, and Tucker has not made a
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`showing of either cause or prejudice.
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`B. The Standard for Demonstrating Ineffective Assistance of Counsel.
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`A defendant asserting that counsel’s performance was constitutionally deficient
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`under the Sixth Amendment must satisfy a two-prong test. “[A] convicted defendant must show
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`both (a) ‘that counsel’s representation fell below an objective standard of reasonableness . . .
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`under prevailing professional norms,’ and (b) ‘that the deficient performance prejudiced the
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`defense,’ i.e., ‘that counsel’s errors were so serious as to deprive the defendant of a fair trial, a
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`trial whose result is reliable.’” Henry v. Poole, 409 F.3d 48, 63 (2d Cir. 2005) (quoting
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`Strickland v. Washington, 466 U.S. 668, 688, 687(1984)). “The challenger’s burden is to show
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`‘that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed
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`the defendant by the Sixth Amendment.’” Harrington v. Richter, 562 U.S. 86, 104 (2011)
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`(quoting Strickland, 466 U.S. at 688)). “The determinative question at this step is not whether
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`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,
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`689 F.3d 124, 129-30 (2d Cir. 2012).
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`In deciding whether counsel’s performance was objectively unreasonable, a court
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`“must make ‘every effort . . . to eliminate the distorting effects of hindsight, to reconstruct the
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`circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s
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`perspective at the time,’ and ‘must indulge a strong presumption that counsel’s conduct falls
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`within the wide range of reasonable professional assistance.’” Henry, 409 F.3d at 63 (quoting
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`Strickland, 466 U.S. at 689). In deciding the prejudice prong, a court must “determine whether,
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`but for counsel’s deficient performance, ‘there is a reasonable probability that . . . the result of
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`the proceeding would have been different,’ for an ‘error by counsel, even if professionally
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`unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error
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`had no effect on the judgment.’” Henry, 409 F.3d at 63 (quoting Strickland, 466 U.S. at 694,
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`691).
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`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.
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`Tucker urges that his retained counsel performed ineffectively by “failing to try to
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`protect some of” the funds dedicated for use as attorneys’ fees and by failing to challenge the
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`asset restraints in the Nevada FTC Action. (ECF 487 at 13-17.) He also urges that appointed
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`counsel performed ineffectively by not moving for a release of funds in order to protect his
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`choice of counsel. (Id.)
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`This argument is without merit. Tucker was well-represented by counsel in the
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`District of Nevada, where his attorneys vigorously opposed the relief sought by the FTC. (D.
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`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
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`relief. On March 31, 2016, the District of Nevada granted the FTC’s motion for a preliminary
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`injunction, which had the effect of freezing Tucker’s assets, including the funds in the joint
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`escrow account. (D. Nev. Action ECF 960.) The judge in the District of Nevada provided that
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`Tucker and his wife could retain access to $75,000 for attorneys’ fees and living expenses for the
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`two months following the date of its Order. (Id. at 8, 15.) The Order further provided that after
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`the two-month period expired, the FTC and Tucker “shall confer regarding future allowances for
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`attorneys’ fees and living expenses.” (Id. at 16.)
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`On April 26, 2016, Tucker’s counsel in Nevada moved for reconsideration and
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`modification of the March 31 Order, asserting, among other things, that the injunction interfered
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`with Tucker Sixth Amendment right to retain the counsel of his choosing in the criminal
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`proceeding in this Court. (ECF 506-6; D. Nev. Action ECF 975, at 5-9.) The brief was filed on
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`Tucker’s behalf by attorneys from Quinn Emanuel Urquhart & Sullivan, LLP, Lewis Roca
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`Rothgerber Christie LLP, and Berkowitz Oliver LLP. (See id.) It included extensive discussion
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`of the Supreme Court’s then-recent Luis opinion and argued that the FTC had not shown that all
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`of Tucker’s assets were “tainted.” (See id.). On September 30, 2016, the District Judge issued a
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`37-page Order that granted a motion for summary judgment filed by the FTC. (D. Nev. Action
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`ECF 1057.) The Order directed the payment of $1,266,084,156 in restitution from Tucker and
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`his co-defendants jointly and severally under section 13(b) of the FTC Act. (Id. at 21-26.) It
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`denied as moot Tucker’s motion to reconsider the preliminary injunction order of March 31
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`“[b]ecause the Court grants the FTC’s request for equitable monetary relief . . . .” (Id. at 2 n.2.)
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`It did not address Luis or any issues related to Tucker’s criminal representation.
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`Case 1:16-cr-00091-PKC Document 530 Filed 08/28/24 Page 14 of 63
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` Tucker’s Nevada counsel filed papers in opposition to the FTC’s application for
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`a preliminary injunction, urging that an asset freeze was an improper remedy under the FTC Act
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`at that stage of the proceeding, that the FTC had not established an entitlement to monetary
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`relief, and that the proposed relief did not properly carve out funds to pay for attorneys’ fees.
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`(See id.) After the District of Nevada granted the FTC’s motion for an injunction, Tucker’s
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`attorneys moved for reconsideration. (D. Nev. Action ECF 975.) By that point, Tucker had been
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`indicted, and his attorneys in Nevada emphasized Tucker’s need to fund his criminal defense.
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`(Id.) His Nevada attorneys urged that “a freeze cannot be permitted where it works to prejudice
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`an individual’s Sixth Amendment rights, which is exactly the result obtained by the FTC with the
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`terms propounded to this Court for adoption.” (Id. at 4.) They discussed in detail the then-recent
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`Luis decision that distinguished restraints on tainted and untainted assets needed to pay for a
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`defendant’s chosen counsel. (Id. at 5-9.)
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`The District of Nevada did not address these arguments. In a footnote, it denied
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`the motion for reconsideration as moot in light of its grant of equitable monetary relief on
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`summary judgment. (D. Nev. ECF 1057 at 2 n.2.)
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`Neither Tucker’s retained counsel nor the appointed counsel who appeared as
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`counsel for Tucker in the prosecution before this Court were objectively unreasonable in failing
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`to make further application on Tucker’s behalf regarding the relief ordered in the Nevada FTC
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`Action. The three law firms representing Tucker in the Nevada FTC Action advocated forcefully
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`on his behalf. Tucker suggests that his counsel in this action could have taken additional steps,
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`such as making separate application to the FTC, requesting that the prosecutors in this case work
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`with the FTC to facilitate a release of funds, making an application to this Court, or seeking
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`emergency relief from the Ninth Circuit. (ECF 487 at 14.) Tucker’s attorneys in the Nevada
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`Case 1:16-cr-00091-PKC Document 530 Filed 08/28/24 Page 15 of 63
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`FTC Action were more than capable of acting on his behalf, as demonstrated by their ultimate
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`success before the Supreme Court. The prosecutors in the case before this Court represented on
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`the record that they had no role in the FTC’s civil proceedings. Paula Junghans, one of Tucker’s
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`retained counsel, states that counsel in the Nevada FTC Action brought “a vigorous challenge to
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`the freeze order” and that Junghans and Schechtman were “fully informed of the proceedings as
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`they unfolded. No purpose would have been served by duplicate or additional submissions from
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`us.” (Junghans Dec. ¶ 34 (ECF 506).) Lee Ginsberg, one of Tucker’s appointed counsel, states
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`that he was “relatively familiar” with the efforts of Tucker’s counsel to access the assets in order
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`to pay for his defense, and that “the issue regarding the funds was being separately litigated in
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`other forums . . . .” (Ginsberg Dec. ¶¶ 20, 23 (ECF 505).)
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`Similarly, it was not objectively unreasonable of Tucker’s criminal defense
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`counsel, retained or appointed, to refrain from bringing an application to this Court directed to
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`the Nevada FTC Action. Junghans notes that “there was no proceeding in this Court in which
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`such an order could have been requested.” (Junghans Dec. ¶ 33; emphasis in original.) She
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`further states, “I do not think it would have been appropriate or ethical for us to orchestrate an
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`evasive maneuver designed to prevent the FTC from enforcing its rights if the Nevada court
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`agreed with the FTC’s position.” (Junghans Dec. ¶ 33.) Tucker does not now point to any
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`procedural mechanism or statutory basis that would have permitted this Court to compel access
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`to assets restrained in the Nevada FTC Action.
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`For much the same reason, Tucker does not identify prejudice. He does not
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`identify any argument or procedural avenue that would plausibly have led to an outcome that
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`would have varied from the outcome obtained by his highly capable civil attorneys in the Nevada
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`FTC Action.
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`Case 1:16-cr-00091-PKC Document 530 Filed 08/28/24 Page 16 of 63
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`Tucker’s Strickland argument directed to his retained and appointed criminal
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`defense counsel’s failure to bring an application directed to the Order in the Nevada FTC Action
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`is meritless.
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`D. Tucker Does Not Make Out a Strickland Claim Based on Counsel’s
`Failure to Move for Reconsideration of the Withdrawal Order.
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`1. Background on the Withdrawal of Tucker’s Retained Counsel.
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`Schechtman first informed the Court of the asset freeze in a letter of April 18,
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`2016, advising that an Order in the Nevada FTC Action “has the effect of restraining the funds
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`held by counsel for the purpose of defending this case. It has caused the defense to come to a
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`standstill. On April 1, 2016, for example, the vendor tasked with processing the discovery
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`material was directed to stop because the freeze order precludes payment to it.” (ECF 31.)
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`Schechtman stated that defense counsel was negotiating with the FTC and the government for
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`the release of funds. (Id.) At the pretrial conference of April 22, 2016, Schechtman advised the
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`Court that Tucker “literally has no money to pay counsel.” (Id.) Referencing the FTC freeze
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`and the Nevada proceedings, the government stated that “it’s obviously not our case” and “we
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`don’t control it,” and that “whatever solution the defendant comes up with respect his counsel – I
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`mean, it’s his solution; it’s certainly not ours – it has to be a solution that anticipates and takes
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`into account whatever might happen in the FTC case going forward.” (Id. at 9-10.) At that
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`conference, the Court asked Tucker whether he wished to permit his counsel to withdraw and
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`retain a new lawyer, have counsel appointed on his behalf, or represent himself pro se; Tucker
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`answered in the negative as to all three options. (Id. at 19.) Tucker confirmed that he wished to
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`continue to be represented by Junghans and Schechtman. (Id. at 21.)
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`At a pretrial conference of June 3, 2016, Schechtman stated that wh