18

- 181(L) United States v. Tucker UNITED STATES COURT OF APPEALS 1 FOR THE SECOND CIRCUIT 2 3 August Term, 201 8 4 5 ( Argued : June 12, 2019 Decided: June 2, 2020 ) 6 7 Docket No

. 18

- 181(L), 18

- 184(CON) , 18

- 1802 8 9 10

_____________________________________ 11 12 UNITED STATES OF AMERICA , 13 14 Appellee , 15 16

v. 17 18 CRYSTAL GROTE, AKA CRYSTAL CRAM, AKA CRYSTAL CRAM

- GROTE, 19 AKA CRYSTAL STUBBS , 20 21 Defendant , 22 23 and 24 25 TIMOTHY MUIR, SCOTT TUCKER , 26 27 Defendants

- Appellants

. 28 29

_____________________________________ 30 31 Before: 32 33 LEVAL , POOLER , and PARKER , Circuit Judges

. 34 35 Timothy Muir and Scott Tucker appeal from a judgment of conviction 36 entered after a jury trial in the United States District Court for the Southern 37 District of New York ( P. Kevin Castel , J. ) on fourteen counts including 382 collection of unlawful usurious debt, and conspiracy to do so, wire fraud, and 1 money laundering , arising out of Defendants’ operation of a payday lending 2 business

. The defense was primarily that the lending business was not subject 3 to state usury laws because it was conducted by Native Americ an t ribes and 4 was therefore protected by t ribal sovereign immunity. Defendants’ primary 5 contention on appeal is that the district court erred in instructing the jury that 6 willfulness

— which the parties agreed was the required state of mind for a 7 charge of l ending at unlawful usurious rates

— can be satisfied merely by the 8 d efendant s’ knowledge of the interest rates charged, even if they believed the 9 lending was lawful. B ecause defendants made no objection following the 10 charge as generally required by Fed. R. Crim. P. 30 , and there was no basis to 11 conclude that objection would have been futile, the plain error standard of 12 Fed. R Cr i m . P. 52 applies. We conclude th e error, if any, was not plain error

. 13 We also find no abuse of discretion in the district court’s d enial of Tucker’s 14 application for a stay of the forfeiture order against him. AFFIRMED. 15 16 T HOMAS J. B ATH , J R

. , Bath & Edmonds, 17 P.A., Overland Park, KS, for 18 Defendant

- Appellant Timothy Muir

. 1 19 20 B EVERLY V AN N ESS , Law Firm of Beverly 21 Van Ness, New York, NY, for 22 Defendant

- Appellant Scott Tucker

. 23 24 K ARL M ETZNER (Hagan Scotten, Sagar 25 K. Ravi , on the brief ), Assistant United 26 States Attorney, for Geoffrey S. Berman, 27 United States Attorney for the Southern 28 District of New York, New York, NY , for 29 Appellee

. 30 31 32 33 34 35 36

1 Defendant Muir terminated Mr. Bath as counsel on September 20, 2018, and later submitted a supplemental brief pro se

.3 LEVAL , Circuit Judge : 1
Defendants Scott Tucker and Timothy Muir appeal their criminal 2

conviction s after a five

- week jury trial in the U.S. District Court for the 3
Southern District of New York (P. Kevin Castel, J. ) on fourteen counts of 4
racketeering , conspiracy, and fraud offenses arising out of the D efendants’ 5
operation of an illegal payday lending scheme. The evidence showed that 6

from about 1997 to 2013, the D efendants lent money at interest rates far in 7

excess of t hose permitted under the law s of New York and other states in 8

which their borrowers resided , and deceived borrowers as to the terms of the 9

loans. 10

The indictment included three counts of conducting an enterprise’s 11
affairs through the collection of unlawful usurious debt, in violation of the 12
Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. 13
§ 1962(c) (Counts 2

- 4) ; one count of conspiracy to do t he same , in violation of 14
18 U.S.C. § 1962(d) (Count 1) ; one count of wire fraud and one count of wire 15
fraud conspiracy , in violation of 18 U.S.C. § § 1343, 1349 (Counts 5

- 6); three 16
counts of money laundering and conspiracy to launder money , in violation of 17

18 U.S.C. § 1956(a)(1)(A )(i),

- (a)(1)(B)(i),

- (h) (Counts 7

- 9); and f ive counts of 184 making false statements in disclosures required by the Truth in Lending Act 1
(TILA) , in violation of 15 U.S.C. § 1611 (Counts 10

- 14)

. The Defendants were 2

convicted on all counts. 3
At trial, the parties agreed

— as they do now

— that the requisite mental 4

state for the RICO counts was willfulness. The Defendants defended 5
primarily on the ground that, because the lending business was operated by 6

Native American t ribes (the “Tribes”) , the l o ans were not subject to state 7
usury laws, and that even if the loans were unlawful, Defendants had a good 8
faith belief that they were lawful by virtue of the tribal involvement, so that 9

their conduct was not “willful .” 10

The D efendants’ principal claim on appeal is that the d istrict c ourt 11
erred in instructing the jury that the Government could satisfy the required 12

state

- of

- mind element of collection of unlawful debt by proving that the 13

Defendants acted deliberately, “ with knowledge of the actual interes t rate 14
charged on the loan [s],” App’x at 264

- 65, notwithstanding any good faith 15

belief that their conduct was lawful. Defendants contend that they could not 16
be properly convicted on the charges of unlawful usurious lending unless 17
they acted willfully, with knowledge that they were acting unlawfully. 185 We reject this challenge to the Defendants’ conviction s

. Because the 1
Defendants did not preserve their objection in the manner specified by Rule 2

30 of the Federal Rules of Criminal Procedure, the “plain error” standard of 3
Rule 52 applies. Even assuming that the charge with respect to Counts 2

- 4 4

was erroneous , the error did not affect the verdict, and thus Defendants have 5

not satisfied the requirements of “plain error.” T he jury necessarily found in 6
rendering a guilty verdict on Count 1 , for which a n undisputedly correct 7
willfulness instruction was given as to the “conspiracy” element, that the 8

D efendants were aware of the unlawfulness of their making loans with 9
interest rates that exceeded the limits permitted by the usury laws

. 10
Furthermore, the evidence of the D efendants’ willfulness was overwhelming. 11

We therefore find that the standard for a fi nding of plain error is not satisfied. 12
Concluding also that the D efendants’ other contentions are without 13
merit, we affirm the judgments of conviction on all fourteen counts. 14
Additionally , we find that the district court did not abuse its discretion in 15

de nying Tucker’s application to stay the execution of the forfeiture order 16
entered against him following his conviction. 176 BACKGROUND 1
Payday loans are s mall loans typically to be repaid on the borrower’s 2
next payday. Such loans frequently carry high interest rates. M any states, 3
including New York, have usury laws capping the permissible annual interest 4

rate on such loans , with the highest lawful interest rate varying by state

. 5
From approximately 1997 through 2013, Defendan t Tucker owned and 6
operated a payday lending business based in Overlan d Park, Kansa s. Initially, 7

the business offered loans primarily via fax and telephone

. I n about 2000 it 8
began to solicit payday borrowers over the internet, operating through 9

several dif ferent websites which were held out to the public as separate 10
entities, but which were administered from the same building and by the 11
same employees, and were referred to internally as different “portfolios.” 12
Muir joined Tucker’s business as an in

- house attorney in 2005 or 2006

. At its 13
peak, the business had over 1,500 employees and 4.5 million customers, and 14
generated more than a billion dollars in yearly revenue

. 15

Tucker’s loans were structured in the following manner . On each of the 16
borrower’s pa ydays following the loan disbursement ( until the loan was 17
repaid ) , the borrower’s bank account was automatically debited a $30 187 “s ervice charge ” for each $100 remaining on the loan principa l

. On each of the 1
first four paydays following disbursement , the loans would “automatically 2
renew,” meaning that th e service charge would be assessed and no payment 3

would be taken to reduce the outstanding principal balance . On the 4
borrower’s fifth payday and on each subsequent payday until the principal 5
was repaid , in addition to the service charge, a “principal payment” of $50 6

would be taken from the borrower’s bank account and applied t o reduce the 7
loan principal

. According to a chart Tucker used to train his employees, based 8
on this payme nt structure, a borrow er would ultimately pay $975 to repay a 9

$300 loan. Considering the service charges as interest, t he resulting 10

annualized interest rate (which varied depending on the frequency of a 11
borrower’s payday s) often exceeded 600%. 12

Borrowers were entitled under the terms of the loans to opt out of the 13
“automatic renewal” process and instead pay the full amount of the principal 14
( in addition to the service charge ) on their first payday. To opt out of 15

automatic renewal, borrowers were r equired to notify the lender in writing. A 16

borrower of $300 who elected to opt out would pay a service charge of $90. 17
The interest rates charged on the loans exceeded what was permitted in some 188 states, including New York, even when the loan was repaid on t he first 1
payday

. And under the default automatic renewal process , the interest rates 2
far exceeded those allowed by the applicable state usury laws . T he written 3
terms of the loans were materially misleading as to how the automatic 4
renewal process worked and the borrowers’ entitlement to opt out from it. A 5
major source of borrower s’ confusion regarding the automatic renewal 6
process was the information in the “TILA Box” displayed in the loan 7

documents. TILA

— the Truth in Lending Act

— requires lenders to make 8
certain disclosures in a prominently displayed chart or “ box " regarding the 9
cost of prospective loans, including the loan amount, finance charge, 10
annualized interest rate, and total amount of expected payments (including 11
the principal)

. See generally 15 U.S.C. § 1638(a). The information listed in the 12

TILA Box on Tucker’s loan documents reflected what those costs would be 13

without the “automatic renewal” process

— that is, what a borrower would pay 14

if she opted out of the automatic renewal process and paid off her entire loan 15
on the first payday. Thus, for a loan of $300, the TILA box listed that the 16
finance charge would be $90 and the total amount of payments (including 17
principal repayment) would be $390

. The discl osure was correct for 189 borrowers who opted out of automatic renewal. It did not reveal , however, 1

that under the default payment schedule, the total finance charge on a loan of 2

$300 would be $675 and the total payment would be $975. Nor did it 3
adequately reveal (although setting it forth in small print and hyper

- technical 4
language outside the TILA box) that borrowers could decline the option of 5

automatic renewal. 6
The indictment alleged that Tucker’s enterprise charged interest rates 7

well in exc ess of the maximum rates allowed for payday loans in at least 25 8
states and Washington, D.C. , and that Tucker and Muir willfully conducted 9
the affairs of the enterprise through the collection of unlawful debt. The 10

indictment included four RICO counts : thre e for participating in the conduct 11
of an enterprise’s affairs through the collection of unlawful debt (Counts 2

- 4), 12
and one for conspiracy to do so (Count 1). Each of the three substantive RICO 13

counts (Counts 2

- 4) listed five customers, located in various states, as to 14
whom the Defendants were charged with collecting unlawful debts. The 15
district court instructed the jury that, to convict Defendants on Counts 2

- 4, the 16
jury had to find that Defendant s engaged in collecting at least one of the five 17

unlawful de bts listed in that count. 1810 The Government’s evidence showed that Tucker and Muir used three 1

different “fronts , ” including the T ribes, to avoid detection of their usurious 2
lending practices or to give those practices the appearance of legality

. The 3
first of these alleged fronts was Tucker’s business relationship, from 1998 to 4
2004, with County Bank of Rehoboth Beach, Delaware (“County Bank”) . As a 5
nationally chartered bank, County Bank could lawfully lend anywhere in the 6

United States at interest rates that complied with the law of the state in which 7
it was headquartered. County Bank was headquartered in Delaware, which 8

does not set a limit on consumer interest rates. Tucker thus endeavored to 9
give his loans the appearance of legality by making it seem that County Bank 10

was the “ lender ” and his business was merely the “servicer , ” while , in fact, he 11
continued to own and operate the loans. He continued to provide the capital 12

for the loans and to administer them through his Kansas office and through 13

websites that he owned and controlled. Tucker’s business continued to 14
control loan approval, while County Bank set up a fake “approval process” to 15
give the false impression that it was involved in decision

- making. In exchange 16

for what another County Bank “servicer ,” Adrian Rubin, described as 17
“renting [County Bank’s] name,” the bank received 5% of the loan interest 1811 regardless of whether the loans were actually repaid, and Tucker bore the 1
entire loss when they were not. 2
As a second “front” strategy, d uring and subsequent to the County 3
Bank scheme, Tucker attempted to hide his identity as lender by paying 4
intermediaries to register a number of Nevada shell corporations, for which 5
his loan portfolios served as the “doing business as” aliases. Rubin testified 6

that Tucker used these alia ses on certain documentation to make it harder for 7
regulators to identify him as the lender

. Tucker also used the Nevada 8
addresses of the shell companies on loan documents to conceal the identity 9

and location of his Kansas business from borrowers. This created problems 10
when borrowers noticed that Tucker’s employees cal led from a phone 11

number with a Kansas area code of 913, which did not match with the 12
company’s purported address in Nevada, and asked the employees about the 13
discrepancy. In response, Tucker told his employees to tell borrowers that the 14

business was locate d in Nevada but that its phone calls were routed through 15

an internet server located in Kansas; he later began to use a “1

- 800” phone 16

number to avoid this issue. 1712 Starting around 2003, Tucker formed relationships with a number of 1

Native American t ribes in order to create the appearance that Tucker’s 2
lending portfolios were owned and operated by the Tr ibes. Under the 3

arrangement , the T ribe would claim to own one or more of the loan portfolios 4

in excha nge for one percent of the portfolios’ revenues. As with his County 5

Bank arrangement , Tucker continued to provide all the capital for the loans 6
and bear the risk of default, as well as advertise, extend, administer, and 7

collect on the loans from his office s in Overland Park, Kansas. He set up bank 8
accounts in the Tribes’ names and routed portfolio revenues to those 9

accounts, but maintained control over the accounts and used them to fund 10
both business expenses and personal expenses including race cars, a private 11
jet, and a mansion in Aspen, Colorado. Tucker also used these accounts to 12

pay the Tribes’ one percent share of revenue, which went to other accounts 13

that were in fact owne d and controlled by the Tribes. While the Tribes 14
claimed to “own” portfolios, Tucker maintained the ability to transfer 15
“ownership” of a portfolio to a different nominal owner if he found the 16

current nominal owner difficult to work with. 1713 Tucker and Muir engaged in a variety of deceptive strategies to give the 1
false appearance that the Tribes owned and operated the l ending business . As 2
with the Nevada shell corporations, the portfolios listed tribal mailing 3

addresses rather than the business’s actual location in Overland Park, Kansas

. 4

When the Tribes received mail for the lending business, they forwarded it to 5
the Kansas office unopened. To keep up th e appearance that the business was 6

located on tribal land, Tucker’s employees were instructed that they should 7
never, on pain of termination, reveal the Kansas location to borrowers, and at 8
least two employees were fired for doing so. This deception was taken to 9
theatrical lengths: employe es in the Kansas office r egularly received weather 10
reports for locations of the tribal reservations, so that they could make 11

accurate small talk with borrowers about the weather in Oklahoma or 12

Nebraska. 13

Meanwhile, on actual tribal land, Tucker and Muir built and staffed 14

sham busi ness office facilities, designed to make it appear that the Tribes 15
were performing work to administer the loans , while in reality all the loan 16
processing took place in Kansas . The Tribes were given iPads from which 17

tribal officials were to access a website once a day to “approve” large swaths 1814 of loans. However, the loans had already been approved by Tucker’s 1
employees in the Kansas office, the website did not allow the tribal officials to 2
access the loan applications being “considered,” and there was no mec hanism 3
for the officials to deny the loans. In addition, the Tribes formed sham 4
corporate boards to run the portfolios, but the boards rarely met, had little 5
understanding of the lending business in Kansas, and exerted no control over 6

it. Tucker and Muir had the tribal officials perform these actions to give the 7
false impression that they were involved in the approval and administration 8
of the loans, while all such meaningful loan administration activity continued 9

to occur at Tucker’s busin ess in Overland Park. 10
Tucker and Muir also arranged a sham transaction in which one of the 11

Tribes purportedly purchased Tucker’s loan processing company, CLK 12
Management (“CLK”) , which then changed its name to AMG Services 13
(“AMG”)

. For the purchase of CLK , which made hundreds of millions of 14
dollars in annual revenue, the Trib e ostensibly paid Tucker just over $135,000. 15
However, the money in fact came from an account controlled by Tucker, 16
meaning that Tucker paid himself in order to make it appear that the 17
company had been purchased by the Tribe. 1815 These charades were spectacularly successful, for a time. Tucker’s loans 1
attracted scores of complaints from borrowers and several investigations by 2
state authorities. By invoking the Tribes’ sovereign immunity, however , 3
Tucker and Muir were able to successfully quash subpoenas from and secure 4

dismissal of state regulatory enforcement actions . In doing so, Tucker’s 5
attorneys submitted false affidavits that materially mis re presented the role of 6
the Tribes in the lending business. In addition, when a borrower complained 7

that the loans were unenforceable under the law of her state, Tucker’s 8
employees responded that the loans were enforceable, and the borrower was 9
obligated to pay, because the loan was owned by a Native American t ribe. 10

While at trial Tucker and Muir disputed any intention to deceive, they 11
did not meaningfully dispute that the above described actions took place

. 12
Prior to trial, they filed a motion to dismiss the unlawful debt c o unts, 13
contending in relevant part that the loans did not constitute “unlawful debt” 14
under 18 U.S.C. § 1961(6) because the loans were authorized under tribal law 15

and were therefore not prohibited by state usury law s . The d istrict c ourt 16

denied th e motion , reasoning that, if the allegations in the indictment were 17

true, because the loans were not issued by tribal entities but by businesses 1816 controlled entirely by Tucker, and because the Tribes had no meaningful role 1

in the business , principles of tribal sovereign immunity did not apply. At 2
trial, Tucker and Muir argued that even if the loans were unlawful , their 3
conduct was not “willful” because they had a good faith belief, based on 4
advice of counsel regarding principles of tribal so vereign immunity, that their 5

conduct was lawful. 6
As noted, a fter a length y trial, a jury convicted Tucker and Muir on all 7

fourteen counts. The v erdict sheet also posed a special interrogatory, to be 8
answered subsequent to the jury’s determination of guilt : “Has the 9
government proven beyond a reasonable doubt that, at the time of collection 10
of any of the loans you fou nd as the basis of a guilty verdict on Counts Two 11
through Four, the lender, in fact, was d efendant Scott Tucker or an entity 12
owned or controlled by him?” The jury answered, “Yes.” 13
Additionally, f ollowing the Defendants’ convictions, the court entered a 14
preliminary forfeiture order against Tucker, including a money judgment in 15

the amount of $3.5 billion and the forfeiture of certain specific property. 16
Tucker moved for a stay of the forfeiture order pending appeal of his 17
conviction, which the district court denied. 1817 The Defendants appeal their convictions, and Tucker appeals from the 1

district court ’s denial of the stay of forfeiture. 2

DISCUSSION 3
On this appeal seeking to set aside their convictions, Defendants ’ 4
principal contention is that the court gave an erroneous and prejudicial jury 5

instruction as to the mental state element of the usury

- based charges

. I n the 6

court’s instruction to the jury on element six of Count 1 (which charged a 7
RICO conspiracy to lend at rates that were usurious un der various state law s ), 8
and by extension on Counts 2

- 4 (which charged substantive R IC O offenses 9

based on unlawful usurious lending), the court told the jury that the 10
Government could show Defendants “willfully” participated in the conduct 11

of Tucker’s ente rprise through the collection of unlawful debt if it proved that 12
they “ acted deliberately, with knowledge of the actual interest rate charged 13
on the loan[s].” App’x at 264

- 65. 14

Defendants contend that this instruction was inconsistent with how 15

willfulness i s generally understood in the criminal context, which requires 1618 that a defendant be aware of the unlawful nature of the conduct. 2 Moreover, 1
Defendants conceded at trial that they were aware of the interest rates 2
charged on the loans, but argued that they believed in good faith that their 3

conduct was lawful . T hey contend that the erroneous charge in effect directed 4
a verdict of guilty on Counts 1

- 4. The Government agrees that it was required 5
to prove willfulness, but it contends that the instruction wa s correct. 6

We reject Defendants’ challenge. Because Defendants failed to preserve 7
their objection to the instruction in the manner prescribed by Federal Rule of 8
Criminal Procedure 30, we review for plain error. Even assuming that the 9

instruction was in err or

— a question we do not resolve

— we find that the error 10
does not satisfy the plain error standard. Taken together with other 11
instructions given by the court to the jury, the instruction now challenged did 12
not affect Defendants’ substantial rights, did not “seriously affect[] the 13
fairness, integrity, or public reputation of judicial proceedings,” Johnson v. 14

United States , 520 U.S. 461, 467 (1997) , and did not cause a “miscarriage of 15

2 See Bryan v. United States , 524 U.S. 184, 191

- 92 (1998) (“As a general matter, when used in the criminal context, a ‘willful’ act is one undertaken with a ‘bad purpose,’” such that “in order to establish a ‘willful’ violation of a statute, ‘the Government must prove that the defendant acted with knowl edge that his conduct was unlawful.’” (quoting Ratzlaf v. United States , 510 U.S. 135, 137 (1994))).19 justice,” United Stat es v. Frady , 456 U.S. 152, 163 (1982). Indeed we conclude, 1
based on the jury’s findings under other instructions, that the instruction 2
alleged to have been error had no effect whatsoever on the verdict. 3
Accordingly, reversal is not warranted under the plai n error standard

. We 4
also reject Defendants’ other arguments as without merit. 5

I. Willfulness Charge 6
7

a. Plain Error Review Applies 8
9 Where a claim of error in the court’s instruction to the jury is properly 10
preserved, we review that claim de novo , reversing if , “ viewing the charge as a 11
whole, there was a prejudicial error.” United States v. Quattrone , 441 F.3d 153, 12
177 (2d Cir. 2006). In order to be preserved, an objection to the jury 13
instructions must be made by “inform[ing] the court of the specific objection 14
and the grounds for the objection before the jury retires to deliberate. ” See 15
Fed. R. Crim. P. 30(d). This objection generally must occur after the 16
instruction is given to the jury, that being the court’s clearest opportunity to 17
fix a mistake that might otherwise require retrial. See Fogarty v. Near North Ins. 18
Brokerage, Inc. , 162 F.3d 74, 79 (2d Cir. 1998). Failure to object in the manner 19
prescribed by the rule , so as to give the court a clearly framed opportunity to 2020 correct an error in the charge, results in forfeiture of de no vo review of the 1
error. Where the claim of error in the charge is not properly preserved, it is 2

reviewe d instead under the far more exacting standard of plain error , as 3
specified in Rule 52(b). Fed. R. Crim. P. 30(d)

. (“Failure to object in accordance 4
with [Rule 30(d)] precludes appellate review, except as permitted under Rule 5
52(b).”). 6
The preclusion of de novo appellate review, however, is not absolute . If 7
the party that failed to object following the jury charge had previously 8
objected, making its position clear, and it was evident in the circumstances 9
that renewal of the objection would be futile because the court had clearly 10

manifested its intention to reject the objection, the failure to renew the 11
objection as spe cified in Rule 30(d) does not forfeit de novo review. See United 12

States v. Rosemond , 841 F.3d 95, 106

- 07 (2d Cir. 2016) ( a defendant’s failure to 13
renew an objection will not forfeit de novo review if “taking further exception 14

under the circumstances would have been futile” ) ; see also United States v. 15

Freeman, 357 F.2d 606 , 613 (2d Cir. 1966) (“Since it is apparent that both Court 16
and counsel were fully cognizant of the issues being raised

— and since a ny 17
further showing would have been an exercise in futility

— it is entirely proper 1821 that we consider the [issue raised] on appeal.” ) ; cf. Thornley v. Penton Publ’g, 1

Inc. , 104 F.3d 26, 30 (2d Cir. 1997) (holding, i n the civil context, in which a 2
similar principle applies, that the futility standard was met where an 3
appellant had “argued its position to the district ju d ge, who rejected it, [and] 4
a further exception after delivery of the charge would have been a m e re 5
formality, with no reasonable likelihood of convincing the court to change its 6

mind on the issue ”). 7
Although the Defendants had argued their position at a mid

- trial 8
charge conference, neither raised an objection to the instruction following the 9
jury char ge

. App’x at 300. Accordingly , their o bjection to the willfulness 10
charge is subject to plain error review unless “taking further exception under 11

the circumstances would have been futile.” See Rosemond , 841 F.3d at 10 7

. 12

We see no basis for concluding that it would have been futile for 13

Defendants to re new their objection. When the issue was earlier discussed at 14
the charge conference, the court expressed uncertainty as to how to charge on 15

state of mind. App’x at 21 0

- 1 7

. The next day , counsel for Muir raised the issue 16
again , arguing that the statement in the proposed charge that the Government 17
could show willfulness by proving that the Defendants “acted deliberately 1822 with knowledge of the actual interest rate” was inconsistent with the 1

definition of willfulness and should be removed. Id . at 228. After li stening to 2
argument on the question , the court thanked counsel and ended the session 3

without giving a conclusive response. Id . at 230. Indeed , as Tucker 4
acknowledge d in his appellate brief , “The court thanked counsel for her 5

comments but did not rule on the objections .” Tucker Br. at 38 (emphasis added)

. 6

On th at record, it cannot be said that the district court had rejected the 7

D efendants’ position , making clear that a further objection aft er delivery of 8
the charge “ would have been a mere formality, with no reasonable likelihood 9
of convincing the court to change its mind on the issue.” Thornley , 104 F.3d at 10

30. Had the Defendants reasserted their argument after the charge, it is 11
entirely possible that the court would have accepted the argument and given 12

a new instruction on the required state of mind , conserving judicial resources 13
by obviating the need for appeal and potential retrial . Accordingly, we review 14
for plain error. 15

b. The Error, If Any, Does Not Satisfy the Requirements 16 of “Plain Error” 17 18 When the plain error standard of review applies , the Court of Appeals 19
may vacate a conviction on account of a challenged jury instruction if the 2023 instruction contains “(1) error, (2) that is plain, and (3) that affect[s] 1
substantial rights.” United States v. Botti , 711 F.3d 299, 308 (2d Cir. 2013) 2
(quoting Johnson v. United S tates , 520 U.S. 461, 467 (1997) )

. In addition, the 3

error must “ seriously affect [] the fairness, integrity, or public reputation of 4
judicial proceedings.” Johnson , 520 U.S. at 467 (quoting United States v. Olano , 5
507 U.S. 725, 732 (1993)). In most cases, to “ affect substantial rights ” the error 6
“must have been prejudicial: It must have affected the outcome of the district 7
court proceedings.” Olano , 507 U.S. at 734. The Supreme Court has cautioned 8
that Rule 52(b) authorizes the Courts of Appeals to correct “ particularly 9
egregious errors,” and is to be “ used sparingly, solely in those circumstances 10
in which a miscarriage of justice would otherwise result.” Frady , 456 U.S. at 11

163 & n.14 ; accord United States v. Young , 470 U.S. 1, 15 (1985)

. The burden is 12

on the defendant to demonstrate that these criteria for relief are met. United 13
States v. Boyland , 862 F.3d 279, 289 (2d Cir. 2017). 3 14

3 In United States v. Viola , 35 F.3d 37, 41

- 42 (2d Cir. 1994), abrogated on other grounds by Salinas v. United States , 522 U.S. 52 (1997), this circuit hel d that where an error results from a supervening decision that alters the applicable law, the burden is on the government with respect to the third element of plain error analysis to show that the error was not prejudicial. We have repeatedly expressed dou bt whether this “modified” version of plain error review survived the Supreme Court’s decision in Johnson v. United States , 520 U.S. 46124 We conclude that, even if the challenged instruction was erroneous , the 1

error d id not satisfy the requirements of the plain error standard. I n 2
instructing the jury as to willfulness in regard to the conspiracy element of 3

Count 1 (the RICO conspiracy count) , the court barred the jury from 4
rendering a guilty verdict on that count unless it found beyond a reasonable 5

doubt that the Defendants were aware of the unlawfu lness of their lending 6

scheme

. The guilty verdict on Count 1 thus demonstrates that the jury was 7
satisfied beyond a reasonable doubt that the Defendants acted with the 8

mental state that Defendants argue was required for Counts 2

- 4

. 9
In its charge on Count 1, the court instructed the jury on willfulness 10

twice : (1) in the context of element two, that the Defendants “knowingly and 11
willfully joined the conspiracy ; ” and (2) in the context of element six, that the 12
Defendants “willfully and knowingly agreed to participate . . . in the affairs of 13
the Tucker payday organization through collection of an unlawful debt.” The 14
portion of the instruction Defendants now challenge applie d only to element 15

(1997). See Boyland , 862 F.3d at 289. We have no occasion to decide that issue here, because the error did not result f rom a supervening decision, and so, even assuming that Viola remains good law, its “modified plain

- error” standard would not apply.25 six (and was incorporated by reference into the instructions for the 1
substantive RICO counts, Counts 2

- 4). 2

As to element two ( knowingly and willfully joining the conspiracy), t he 3

court instructed the jury that “[w]illfully means to act de liberately and with a 4
purpose to do something that the law forbids,” and that to be convicted under 5

Count 1 the D efendants “must have been aware of the generally unlawful 6
nature of [their] act[s].” App’x at 258

- 59. The jury found the D efendants guilty 7

unde r Count 1 . Therefore, the jury necessarily found that they knew the 8
unlawful nature of the lending they conspired to engage in

— the same 9
lending that formed the basis of element six and that was charged as a 10

substantive offense in Counts 2

- 4. Because the ju ry found in connection with 11
the conspiracy element that the Defendants were aware of the unlawful 12
nature of their conduct, there is no risk that the jury could have found them 13
guilty on the “collection of an unlawful debt” element of C ounts 1

- 4, 14
involving the loans that were the object of the conspiracy charged in Count 1, 15
without being satisfied beyond a reasonable doubt that the Defendants were 16

aware of the unlawful nature of their conduct. 1726 Furthermore, the Government presented overwhelming evidence that 1
Defendants were aware of the unlawful nature of the loans, in the form of 2
Defendants’ extensive efforts to conceal their lending activities and to create a 3
sham illusion that the lending was done by Native American tribes, precisely 4

so that s tate usury laws would not seem to apply. See United States v. Atkins , 5
869 F.2d 135, 139 (2d Cir. 1989) (finding “specious” defendants’ claim that 6
they were unaware that their actions were illegal, in light of the strength of 7

evidence of lies and concealmen t); see also Bryan , 524 U.S. at 189 & n.8 8
( concluding that willfulness in illegal firearms sales was satisfied by showing 9
that defendant used “straw purchasers” and shaved off gun serial numbers). 10

Uncontradicted evidence showed that the Defendants : (1) pr ohibit ed 11
employees from revealing the business’s Kansas location, and instruct ed them 12
to falsely claim that they were located on tribal land; (2) caused mail related 13
to the lending business to be sent to the Tribes and then forwarded unopened 14

to the Kansas office, giving a false impression that lending activity occurred 15
on tribal lands; (3) requir ed tribal officials to perform fake loan approvals on 16
designated iPads in order to give the appearance that they were involved in 17
the loan approval process; (4) se t up a sham transaction in which AMG, a 1827 company controlled by Tucker, “purchased” CLK (using money controlled by 1
Tucker) in order to give the appearance of tribal ownership; and (5) caused 2
attorneys to submit affidavits in state court actions that containe d inaccurate 3
descriptions of a purported tribal role in administering the loans . In light of 4

this evidence, we have no doubt that , if the willfulness instruction challenged 5
by Defendants was erroneous, the error did not affect the verdict. 6
The court’s charge did not adversely “affect[] substantial rights,” Botti , 7
711 F.3d at 308, “seriously affect[] the fairness, integrity, or public reputation 8
of judicial proceedings,” Johnson , 520 U.S. at 467, or cause a “miscarriage of 9
justice” in these c ircumstances, Frady , 456 U.S. at 163. Defendants’ argument 10
is that the jury should not have been allowed to convict on the substantive 11

unlawful debt counts unless it found that the Defendants were aware of the 12
unlawful nature of their conduct. Taking into account the charge as a whole, 13
the jury did find (based on overwhelming evidence of that fact) that the 14

Defendants were aware of the unlawful nature of the lending scheme. 15
In reaching this conclusion, we express no view on whether willfulness 16

or awareness of unlawfulness was required for conviction under Counts 2

- 4. 17
We note, however, that were it not for the fact that the Defendants failed to 1828 satisfy the plain error standard, we would face confusing and arguably 1
incompatible precedents regarding the requir ed mental state for a RICO 2
offense involving unlawful debt. One source of the difficulty is that a RICO 3
unlawful debt offense can be predicated on a violation of a state’s civil usury 4
statute, and that many such civil statutes impose no state of mind 5
requi rement at all. Certain applications of RICO in this context are thus in 6
tension with the Supreme Court’s recent reaffirmation of a “presumption in 7
favor of a scienter requirement” applicable to “each of the statutory elements 8

that criminalize otherwise innocent conduct.” Elonis v. United States , 135 S. Ct. 9
2001, 2011 (2015) (quoting United States v. X

- Citement Video, Inc. , 513 U.S. 64, 10
72 (1994) ). Although we need not, and do not , resolve the se issues here, we 11
discuss them briefly in the hope of exposing some of the potential problems. 12
For starters, our 1986 opinion in United States v. Biasucci , 786 F.2d 504 13
(2d Cir. 1986), written in the early days of RICO adjudications, ostensibly 14
adopted t wo incompatible state

- of

- mind standards. The case, like this one, 15
involved a RICO prosecution for collection of debts that were unlawful under 16
state law. On the one hand, our opinion declared that RICO requires “that the 17
defendant acted knowingly, willfull y and unlawfully,” Biasucci , 786 F.2d at 1829 513

— the statement Defendants here rely on for their argument that the 1
Government was required to prove willfulness . At the same time, the Biasucci 2
opinion upheld the RICO convictions on the g r ound that RICO imposes no 3
mental state requirement beyond that required by the predicate state statute. 4

Biasucci , 786 F.3d at 512

. The issue raised on the appeal was the defendants’ 5

contention that the governme nt was required to prove the ir knowledge of the 6
specific interest rates being charged on the loans they were collecting

. We 7
affirmed the convictions on the ground that there was no such requireme n t 8
under the predicate state statute and therefor e no such re qu i rement imposed 9
by RICO. The prosecution was predicated on the defendants ’ violation of 10
New York Penal Law § 190.4 0. T h at statute required proof that the defendant 11
knowingly took or received interest at a rate exceeding 25% per annum. It did 12
not, however, require that the defendant know either the preci s e rate being 13
charged, or that the rate was illegal. 4 Accordingly, after stating in dictum that 14

4 The statute’s phrase “knowingly charges . . . any money or other property a s interest . . . at a rate exceeding twenty

- five per centum per annum,” N.Y. Penal Law § 190.40 (McKinney Supp. 1986), might conceivably be read to require knowledge that 25% was the maximum lawful rate

— which, combined with the knowledge that the rate charged exceeded 25%, would constitute knowledge of unlawfulness. However, the Court of Appeals had previously made clear in Freitas v. Geddes Savings & Loan Ass’n , 63 N.Y.2d 25430 RICO requires proof that the defendant acted willfully, the court upheld the 1
convictions based on a standard that did not require a showing of wil l fulness 2

or of awareness of the unlawful nature of the conduct. 3
Apart from its i nternal incons istency, the Biasucci holding that no proof 4
of state of mind is required beyond what is required by the state statute can 5

be difficu l t to reconcile with the Supreme Court’s later insistence in X

6

Citement Video and Elonis on a “presumption [in the interpretation of criminal 7
statutes] in favor of a scienter requirement,” applicable to “each of the 8
statutory elements that criminalize otherwise innocent conduct.” Elonis , 135 S. 9

Ct. at 2011. The Biasucci formulation would , under cer tain circumstances, 10

(1984), that § 190.40 does not require knowledge of the unlawfulness of the act. Although Freitas involved a civil usury stat ute and not § 190.40, the majority characterized the dissent’s test

— under which “knowingly” requires “knowledge that the facts exist which constitute the offense, not knowledge of the unlawfulness of the act”

— as being “akin to the standard utilized by [§ 1 90.40].” Freitas , 63 N.Y.2d at 264; id. at 267 (Simons, J., dissenting). Similarly, as to the civil statute at issue, the Freitas majority noted that “[i]f the note or bond shows a rate of interest higher than the statutory lawful rate, it would be immaterial whether the lender actually intended to violate the law.” Id. at 262. Thus, while “knowingly” in § 190.40 might on its face b e read to require awareness of unlawfulness, precedent made clear that “knowingly” was satisfied by knowledge that the interest rate exceeded 25%, regardless of whether the defendant was aware that such rate was unlawful.31 authorize conviction under RICO of a defendant who neither knew the rate of 1
interest charged nor that the rate charged was illegal

. 2
That difficulty is exacerbated if the principle espoused in Biasucci (and 3
other cases)

— that RIC O impose s no knowledge requirement beyond what is 4
imposed by the predicate state law

— applies even when the unlawfulness 5
under state law is predicated on a state civil statute. 6
RICO offenses may be predicated on a single instance of collection of 7
unlawful debt, as well as on a pattern of racketeering activity. See 18 U.S.C. § 8

1962 ; United States v. Giovanelli , 945 F.2d 479, 490 (2d Cir. 1991)

. While 9
“racketeering activity” is generally understood to encompass only criminal 10
offenses, see Durante Bros. & Sons, Inc. v. Flushing Nat’l Bank , 755 F.2d 239, 247 11
(2d Cir. 1985), the RICO statute defines “unlawful debt” to include any debt 12

“which is unenf orceable under State or Federal law . . . because of the laws 13
relating to usury” and “which was incurred in connection with . . . the 14
business of lending money or a thing of value at a rate usurious under State 15

or Federal law, where the usurious rate is at least twice the enforceable rate.” 16
18 U.S.C. § 1961(6) (emphasis added). This definition “includes debts that 17
would be usurious under the laws of several states, and hence unenforceable, 1832 but that would not violate [any state] criminal usury laws.” Durante Bros. , 755 1
F.2d at 247 (emphasis in original). Thus, the criminal RICO offense of 2
participating in the conduct of an enterprise’s affairs through collection of 3
unlawful debt may arguably be predicated on a violation of only civil usury 4

laws. 5

Some such sta te civil statutes render debt unlawful and unenforceable 6
solely by reason of the rate of interest charged, without regard to the mental 7
state of the lender or collector. Such statutes provide simply that loans 8
carrying an interest rate above a specified th reshold are void and 9
unenforceable. A debt charging interest that exceeds the threshold rate and is 10
incurred in connection with the business of lending money at twice the 11
enforceable rate would thus appear to fit within the definition of “unlawful 12

debt” un der 18 U.S.C. § 1961(6), and could thus arguably serve as the 13
predicate for a RICO offense, regardless of what the lender knew or intended. 14
Indeed, several of the state u sury statutes underlying the RICO charges 15

in this case are of precisely this nature. For instance, the payday loan statute 16
in New Hampshire, which was the location of one of the customers named in 17
Count 2, provides: “The annual percentage rate for payday loans shall not 1833 exceed 36 percent , ” N.H. Rev. Stat. § 399

- A:17(I) , and makes payday loans in 1
excess of 36 percent unenforceable , regardless of mental state, see i d. § 399

- 2
A:23(VIII) ( “If charges in excess of those permitted by this chapter shall be 3
charged . . . the contract of loan shall be void and the lender shall have no 4
right to collect or receive any charges, interest, or recompense whatsoever. ”)

. 5
Similarly, New York’s civil usury statute, which was specifically listed in the 6

indictment , and which applies to loans listed in all three substantive RICO 7
counts, provides that the maximum interest rate “shall be sixteen per centum 8
per annum.” N.Y. Banking Law § 14

- a(1); N.Y. Gen. Oblig. Law § 5

- 501. The 9
New York law also provides that “[a]ll bonds, bills, notes, assurances, 10
conveyances, all other contracts or securities whatsoever . . . whereupon or 11
whereby there shall be reserved or taken . . . any greater sum, or greater 12
value, for the loan or forbearance of any money, . . . than is prescribed in 13

section 5

- 501, shall be void.” N.Y. Gen. Oblig. Law § 5

- 511. Thus, loan 14

contracts wit h an interest rate exceeding 16% are unenforceable under New 15
York’s civil usury law, regardless of the mental state of the lender. 16

It is unclear whether the Biasucci court would have intended its 17
holding, that “RICO imposes no additional mens rea requireme nt beyond that 1834 found in the predicate crimes,” Biasucci , 786 F.2d at 512, to apply also to 1
criminal RICO charges predicated on civil usury statutes such as these. 2

Biasucci itself involved a RICO offense that was based solely on New York’s 3

criminal usury statute. And Biasucci consistently refers to the predicate crimes , 4
perhaps suggesting that the court did not contemplate that the same rule 5

would apply to RICO offenses base d on loans that were unenforceable under 6

state civil usury statutes. Moreover, the cases that Biasucci relied upon for that 7
rule involved racketeering

- based RICO charges predicated on criminal 8

violations of the Taft

- Hartley Act. See United States v. Boylan , 620 F.2d 359 (2d 9
Cir. 1980); United States v. Scotto , 641 F.2d 47 (2d Cir. 1980). None involved 10
RICO charges based on civil statutes. If, however, a defendant may be 11
convicted under RICO for participation in the making or collecting of a loan 12
merely beca use a state civil statute ren ders the loan unenforceable by reason 13
of the interest rate, without any requirement whatsoever as to the defendant’s 14
state of mind, in some c i rcumstances this would authorize racketeering 15

convictions where the defendant had not only committed no state law 16
offense, but had done nothing that would offend social mores. 1735 As noted above, a RICO prosecution can be predicated on a single 1

instance of collection of unlawful debt. And what the RICO statute calls an 2
“enterprise” can be “any individual, partnership, corporation, association, or 3
other legal entity,” 18 U.S.C. § 196 1(4)

— so long as it is “engaged in, [or its 4
activities] affect, interstate commerce,” id. § 1962(c). And high interest rates 5
can result from application of reasonable service fees to small debit balances 6
in circumstances that do not partake of the predatory lending practices 7
exhibited in this case (or those seen in Biasucci ). Consider a store that sells 8

g oods coming from different states , which allow s customers charge accounts 9
and follows a policy for accounts that remain unpaid after four months to 10
impose a modest one

- time $15 service fee (considered interest under usury 11
laws) and begin charging interest at an unobjectionable rate. An employee 12
who “participates in the conduct” of the business’s affairs by overseeing the 13
billing process , 5 say, the credit manager, might face federal criminal liability 14

5 The st atutory requirement that t he defendant “conduct or participate . . . in the conduct” of the enterprise’s affairs, 18 U.S.C. § 1962(c), likely shields the lowest rung of employees from RICO liability. See Reves v. Ernst & Young , 507 U.S. 170, 179 (1993) (re quiring that the defendant have “ some part in directing the enterprise’s affairs” to be liable under § 1962(c) (emphasis in original)); United States v. Viola , 35 F.3d 37, 41 (2d Cir. 1994) (finding erroneous under Reves a jury instruction that permitted conviction as long as the d efendants36 as a racketeer, although having committed no offense und er state law or even 1
acted unreasonably , for mailing a monthly bill that charged the $15 fee where 2

the customer’s unpaid balance was sufficiently small

. If RICO liability 3
requires no proof of state of mind other than what is required to show that 4

the loan is unenforceable under the predicate state statute and this rule 5
applies where unenforceab i lity under state law depends on only the interest 6
rate (without regard to state of mind) or even where, as in Biasucci , criminal 7
liability under the state’s law does not require awareness of the illegality of 8

the rate , this can produce criminal liability f or racketeering for 9
unexceptionable conduct. We have serious doubts that such a rule 10

performed duties that were “necessary and helpful” to the operation of the RICO enterprise). But the Supreme Court in Reves clarified that § 1962(c) could extend to “lower rung” participants who participate in the operation of the enterprise, and it declined to decide “how far § 1962(c) extends down the ladder of operation.” Reves , 507 U.S. at 184 & n.9. We know of no case setting a precise lower bound for the position within the ladder required for § 1962(c) liability, but it is clear that some d egree of discretionary authority is sufficient. See United States v. Diaz , 176 F.3d 52, 92

- 93 (2d Cir. 1999) (holding that evidence was sufficient to meet the Reves standard because defendants were “on the ladder [of operation], rather than under it” and e xercised “discretionary authority” in carrying out instructions). Thus, many “lower rung” employees remain potentially subject to RICO charges for their activities relating to a RICO enterprise.37 appropriately “separate [s] wrongful conduct from otherwise innocent 1

conduct.” Elonis , 135 S. Ct. at 2010 (internal quotation marks omitted ). 2
Because, as explained above, the jury necessarily found that the 3
Defendants acted willfully in rendering a guilty verdict on Count 1, and 4
because the evidence of willfulness was overwhelming in any event, the 5
Defendants have not met their burden of showing plain error. While the 6

issue s we have discussed will pose troublesome questions in future cases, we 7

have no occasion to resolve those difficulties in this case, and do not purport 8

to do so. 9

II. Defendants’ Other Arguments Are Without Merit 10
Defendants also argue (1) the d istrict c ourt erred by excluding the 11
testimony of Defendants’ expert witness, attorney Gavin Clarkson , on the 12
topic of tribal sovereign immunity; (2) there was insufficient evidence that 13
Defendants engaged in wire fraud by misleading borrowers to believe that 14

Nativ e American t ribes were the true lenders, because Defendants had a good 15

faith belief that the Tribes were in fact the lender; and (3) the loans here did 16

not constitute “unlawful debt” as defined under RICO because, due to 1738 principles of tribal sovereign immu nity, state usury laws are not 1
“enforceable” against tribal loans. These contentions are without merit. 2

We reject Defendants’ contention that the d istrict c ourt erred by 3
excluding Clarkson’s testimony. A district court’s decision to exclude expert 4

testim ony is reviewed for abuse of discretion. Zaremba v. Gen. Motors Corp. , 5
360 F.3d 355, 357 (2d Cir. 2004). Regardless of whether Clarkson’s testimony 6
was being offered to show that Defendants had an innocent state of mind 7
regarding the legality of their loan s, or to show that their lending practices 8
were in fact not illegal, the court committed neither error nor abuse of 9
discretion in excluding it. As to the former issue, Clarkson did not advise the 10
Defendants, and so his proposed testimony would not have been probative of 11
what they understood

. As for the legal issue of the lawfulness of the loans , 12
“[w]e have consistently held

. . . that expert testimony that usurps .

. . the role 13
of the trial judge in instructing the jury as to the applicable law

. . . by 14
definition does not aid the jury in making a decision,” and is therefore 15

inadmissible under Federal Rule of Evidence 702. Nimely v. City of New York , 16
414 F.3d 381, 397 (2d Cir. 2005) (internal quota tion marks and citation 17
omitted). 1839 We also reject Defendants’ contention that there was insufficient 1

evidence of wire fraud consisting of misrepresenting the identity of the 2

lender. On a defendant’s challenge to his conviction based on the sufficiency 3

of evidence, “ we view the evidence in the light most favorable to the 4
government, drawing all inferences in the government’s favor.” United States 5

v. Hawkins , 547 F.3d 66, 70 (2d Cir. 2008) (internal quotation marks omitted). 6

There was extensive evidence that Defendants were aware that the Tribes 7

were not the true lender, and that they falsely represented this was the case in 8
order to evade state regulators and to convince borrowers to make payments 9

on the unlawful terms they offered . Testimony of multiple witnesses 10

established that the Tribes had no meaningful influence or control over the 11
lending business , but rather served merely as a cover

. Defendants made 12

extensive and sometimes extraordinary efforts , described above, to create a 13
false impression that the Tribes were involved in the lending

. The evidence 14
was more than sufficient for the jury to conclude that Tucker and Muir knew 15
that the Tribes were not the lender, but falsely represented that they were. 16
We reject Defendants’ argument that the loans were not “unlawful 17
debt” as defined by RICO because, due to principles of tribal sovereign 1840 immunity, state usury laws are not enforceable against tribal loans. The 1

d istrict c ourt correctly concluded ( in its opinion deny ing Defendants’ motion 2

to dismiss the indictment) based on the facts alleged in the indictment

— and 3
subsequently demonstrated at trial

— t hat t he Tribes’ involvement in the 4
lending business was a sham, so that principles of tribal sovereign immunity 5
had no ap plication to Tucker’s non

- tribal business

. We reject the Defendants’ 6

further contentions as frivolous. 7

III. The District Court Did Not Abuse Its Discretion In 8 Denying Tucker’s Application For a Stay of the 9 Forfeiture Order 10
11 Tucker also argues that the district court erred in denying his 12
application to stay execution of the forfeiture order against him pending his 13
appeal of the underlying convictions. Following Tucker’s conviction, in April 14
2018 the district court entered a preliminary forfeiture order against hi m , 15
including a money judgment in the amount of $3.5 billion and the forfeiture 16
of certain specific property, including ten cars, two residences, and jewelry. 17
Tucker moved for a stay of the forfeiture order in the district court, arguing 18
he was likely to succeed on the merits of his appeal, that the property at issue 19
would likely increase in value and had intrinsic value to him, and that the 2041 government could offset the cost of maintaining the property pending the 1
outcome of his appeal by renting the real p roperty

. The district court rejected 2
Tucker’s motion, finding that under the factors set out in United States v. 3

Silver, 203 F. Supp. 3d 370, 385 (S.D.N.Y. 2016), Tucker’s likelihood of success 4
on appeal was low, and the cost to the government of maintaini ng the assets 5

would be high. The district court did , however, impose a stay as to the sale of 6
the family residence. Tucker then appealed from the denial of the stay of the 7

forfeiture order. 8
A district court may stay a forfeiture order pending appeal “on te rms 9
appropriate to ensure that the property remains available pending appellate 10
review.” Fed. R. Crim. P. 32.2(d). While neither the F ederal R ules nor this 11
Court’s precedent set out factors that pertain explicitly to stays of forfeiture 12

order s , we ha ve expressed standards generally governing applications to stay 13
district court orders or proceedings pending appeal as follows : “(1) whether 14
the stay applicant has made a strong showing that he is likely to succeed on 15
the merits; (2) whether the applicant wi ll be irreparably injured absent a stay; 16
(3) whether issuance of the stay will substantially injure the other parties 17
interested in the proceeding; and (4) where the public interest lies.” In re 1842 World Trade Ctr. Disaster Site Litig. , 503 F.3d 167, 170 (2d Cir. 2007) (internal 1
quotation marks and footnote omitted); see also United States v. Gelb , 826 F.2d 2
1175, 1177 (2d Cir. 1987) (applying traditional stay factors in deciding an 3
interlocutory appeal of a pretrial restraining order enjoining the transfer of 4
assets subject to criminal forfeiture). We review the denial of a stay for abuse 5

of discretion. See Pravin Banker Assocs., Ltd. v. Banco Popular Del Peru , 109 F.3d 6
850, 856 (2d Cir. 1997). 7
The district court, like others in our c ircuit facing similar fact patterns, 8
applied the slightly modified version of the traditional stay factors articulated 9
by the district court in Silver : “1) the likelihood of success on appeal; 2) 10

whether the forfeite d asset is likely to depreciate over time; 3) the forfeited 11
asset’s intrinsic value to defendant (i.e., the availability of substitutes); and 4) 12
the expense of maintaining the forfeited property.” Silver , 203 F. Supp. 3d at 13

38 5 ; see also United States v. N gari , 559 F. App’x 259, 272 (5th Cir. 2014) 14
(analyzing denial of stay by considering “(1) the likelihood of success on 15
appeal; (2) whether the forfeited assets will depreciate over time; (3) the 16
forfeited assets’ intrinsic value to the defendant; and (4) t he expense of 17
maintaining the forfeited property”). 1843 Under any such test, we hold that the district court did not abuse its 1
discretion in denying Tucker a stay of the forfeiture order. Tucker was indeed 2
unlikely to succeed on the merits of his appeal. N o thing in the record 3
contradicts the district court’s finding that the cost of maintaining the assets 4
was high, and that the property had no intrinsic value for Tucker; nor did the 5
record show that the property was more likely to increase, than decrease, in 6

value. 7

CONCLUSION 8
For the foregoing reasons, the judgment of the d istrict c ourt is 9

AFFI RMED

. 10