“Tucker v. United States — No Per Se Conflict from Counsel’s Unrelated SDNY Investigation; Conflict-Free Co-Counsel Suffices for Curcio Advice” —

• “In Tucker v. United States (2d Cir. Apr. 1, 2026) (summary order), the Second Circuit affirmed the Southern District of New York’s denial of (i) Scott Tucker’s motion to vacate his conviction under 28 U.S.C. § 2255 and (ii) his motion for compassionate release under 18 U.S.C. § 3582(c)(1)(A). Tucker is serving a 200-month sentence following a jury trial conviction for offenses including racketeering, fraud, and money laundering.”
• “The appeal focused on two distinct questions:
  • Conflict-of-interest / Sixth Amendment: Whether Tucker’s court-appointed trial counsel, Lee Ginsberg, labored under an unwaivable per se conflict because, mid-trial, Ginsberg met with prosecutors from the same U.S. Attorney’s Office prosecuting Tucker and disclosed facts showing potential, unrelated criminal exposure. A related procedural claim asserted that the district court failed to provide “independent” counsel for the Curcio conflict-waiver inquiry.
  • Compassionate release: Whether the district court abused its discretion in denying a sentence reduction based on Tucker’s confinement conditions, rehabilitation, and need to care for his ill mother.”
• “Important procedural limitation: The Second Circuit emphasized that, due to the certificate of appealability, it had jurisdiction to consider only the narrow § 2255 question: whether an unwaivable conflict existed (not whether any waiver was knowing/voluntary).”
• “Note: This decision was issued as a summary order, which the court states has no precedential effect, though it is citable under Fed. R. App. P. 32.1 and Local Rule 32.1.1.”
• “The Second Circuit affirmed on both issues:
  • No unwaivable per se conflict: The court declined to expand the Second Circuit’s narrow per se conflict doctrine. Because Ginsberg was neither unlicensed nor implicated in Tucker’s charged crimes, and because the alleged exposure was unrelated, the asserted conflict did not qualify as per se or analogous-to-per-se.
  • Curcio counsel claim rejected: Tucker was advised by conflict-free co-counsel James Roth, who was already counsel of record and familiar with the case; the court found no requirement that the district court appoint a brand-new lawyer unfamiliar with the matter to conduct the Curcio inquiry when conflict-free counsel is already in place.
  • No abuse of discretion on compassionate release: The district court permissibly denied relief based on the 18 U.S.C. § 3553(a) factors, citing Tucker’s long fraud history, recidivism, defiance of regulators/courts, and lack of acceptance of responsibility.”
• “A. Why the conflict was not ‘per se’ or unwaivable.” Tucker’s core theory was structural: once the same prosecuting office is simultaneously investigating defense counsel, counsel may ‘curry favor’ with the government, thereby compromising loyalty. The Second Circuit did not dispute that such incentives can exist; instead it treated the question as doctrinal—whether those incentives fit within the Second Circuit’s narrow per se category or its ‘analogous’ unwaivable category.”
• “The panel also rejected the attempt to repackage the facts as an unwaivable ‘analog’ to a per se conflict under United States v. Perez. The asserted conflict lacked the kind of extreme breadth and depth that would make the representation irrational for any defendant as a matter of law.”

New York State: “Judicial Ethics Opinion 25-156” —

• “Digest: On these facts, a judge need not disqualify from a proceeding merely because counsel for a party makes many accusations against the judge, provided the judge concludes he/she can remain impartial.”
• “Rules: Judiciary Law § 14; 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(a)-(f); Opinions 23-70; 94-46; People v. Moreno, 70 NY2d 403 (1987).”
• “Opinion: The inquiring judge received a letter from counsel in a matter asking the judge to recuse for a long list of reasons. Several reasons appear to involve primarily legal questions, such as the propriety of the judge’s closure of the courtroom, the correctness of the judge’s discovery orders, the judge’s willingness to excuse party appearances, and whether or not a pending federal case may be relevant to the matter. Other reasons appear to involve incorrect factual assumptions.”
• For example, a purported ‘stranger’ in the closed courtroom was in fact the judge’s law clerk, and the judge flatly denies counsel’s claims that the judge has prejudged certain issues in the case or has a disqualifying personal relationship with a witness or disqualifying extra-judicial knowledge of certain property. Counsel also claims that the judge’s impartiality can be questioned because a party in the case is up for election against the judge’s spouse’s former campaign opponent. The judge believes he/she can remain fair and impartial, but asks if he/she must nonetheless disqualify under the circumstances.”
• “A judge must avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must act in a manner that promotes public confidence in the judge’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge must disqualify where specifically mandated (see 22 NYCRR 100.3[E][1][a]-[f]; Judiciary Law § 14) and in other proceedings where the judge’s impartiality ‘might reasonably be questioned’ (22 NYCRR 100.3[E][1]). Where objective standards do not mandate disqualification, however, a trial judge is the sole arbiter of recusal (see People v. Moreno, 70 NY2d 403, 405 [1987]).”
• “We can only advise ‘whether the facts as presented by the judge require the judge to disqualify from the case going forward’ (Opinion 23-70). None of the specific objective disqualifying standards found in 22 NYCRR 100.3(E)(1)(a)-(f) appear to be implicated here on the facts presented. We have advised that a judge need not recuse from a proceeding ‘merely because an attorney participating therein accuses the judge of misconduct in a letter addressed to the judge, the Administrative Judge, opposing counsel, and the Commission on Judicial Conduct,’ provided the judge concludes he/she can be fair and impartial (Opinion 94-46). Nor can we see any other grounds on which this judge’s impartiality ‘might reasonably be questioned’ (22 NYCRR 100.3[E][1] [emphasis added]).”
• “Where, as here, objective standards do not mandate disqualification, a trial judge is the sole arbiter of recusal (see People v Moreno, 70 NY2d 403, 405 [1987]; Opinion 23-70). Accordingly, we conclude that the inquiring judge need not disqualify from the case, provided the judge concludes he/she can be fair and impartial.”