Order Denying Casutt’s Motion to Vacate — United States v. Casutt (Dkt. 266, D. Nev.)

Summary

Chief U.S. District Judge Andrew P. Gordon of the District of Nevada denied Brandon Casutt's motion to vacate, set aside, or correct the sentence under 28 U.S.C. § 2255 in this order of May 16, 2025 in Case No. 2:20-cr-00231-APG-NJK. Casutt pleaded guilty to wire fraud and concealment money laundering; the facts, taken from the plea agreement, say Casutt applied for more than $5.5 million in PPP and EIDL loans and received at least $509,775. The loan proceeds went out in checks marked "back pay" or "pandemic pay" to an account under the name of Casutt's charitable foundation, which then bought a house in Henderson, Nevada. The order rejects the claims of ineffective assistance of counsel, prosecutorial misconduct, factual innocence and a defective warrant and indictment. No certificate of appealability shall issue.

Summary drafted by a model from the document's text below and checked by script against that text before publication. It is a navigation aid, not a reading of what the document proves. Where AI is used

Record facts

Full text

Case 2:20-cr-00231-APG-NJK           Document 266       Filed 05/16/25     Page 1 of 13




 1                              UNITED STATES DISTRICT COURT

 2                                     DISTRICT OF NEVADA

 3 UNITED STATES OF AMERICA,                               Case No.: 2:20-cr-00231-APG-NJK

 4           Plaintiff                                Order Denying Casutt’s Motion to Vacate

 5 v.                                                                [ECF No. 251]

 6 BRANDON CASUTT,

 7           Defendant

 8          Brandon Casutt pleaded guilty to wire fraud and concealment money laundering based on

 9 COVID-19 relief loans he fraudulently obtained. He moves to vacate, set aside, or correct his

10 sentence under 28 U.S.C. § 2255, arguing that his counsel gave ineffective assistance, the

11 prosecution committed misconduct, he is factually innocent, and the government’s search

12 warrant and indictment were defective. The government responds that Casutt’s counsel was not

13 ineffective, Casutt has not shown any prejudice from the allegedly ineffective representation, and

14 Casutt waived his other grounds to vacate in his guilty plea. Because Casutt has not met his

15 burden on any of his grounds to vacate, I deny his motion.

16 I. BACKGROUND 1

17          Casutt applied for loans made available in response to the COVID-19 pandemic through

18 the Paycheck Protection Program (PPP) and Economic Injury Disaster Loan (EIDL) program. In

19 his applications, Casutt falsely represented that his business and nonprofit foundation employed

20 many more employees and had much larger monthly payrolls than they had. Casutt applied for

21 more than $5.5 million in loans and received at least $509,775 from the two programs.

22

23 1
      All facts are taken from the plea agreement (ECF No. 154), which Casutt swore under oath
     were true and accurately describe what he did regarding these charges. ECF No. 173 at 5, 27-28.

           Case 2:20-cr-00231-APG-NJK            Document 266        Filed 05/16/25      Page 2 of 13




 1             Casutt laundered the loan proceeds by issuing a series of checks to himself, family

 2 members, and other individuals, writing “back pay” or “pandemic pay” in the memo lines. ECF

 3 No. 154 at 11. These checks were then deposited into an account controlled by Casutt under his

 4 charitable foundation’s name. The foundation, under Casutt’s direction, then used the funds to

 5 purchase a house in Henderson, Nevada. Casutt pleaded guilty to one count of wire fraud and

 6 one count of concealment money laundering.

 7 II. ANALYSIS

 8             A. Ineffective Assistance of Counsel

 9             Casutt argues that his various lawyers 2 were ineffective for (1) representing him despite

10 conflicts of interest, (2) pressuring Casutt into taking a plea deal, (3) failing to challenge the

11 warrant application and indictment, and (4) not adequately pursuing a motion to withdraw

12 Casutt’s plea. The government responds that most of Casutt’s complaints are tactical decisions

13 that are within the range of reasonable representation and that Casutt has not demonstrated

14 prejudice from his counsel’s performance.

15             To prevail on an ineffective assistance of counsel claim, Casutt must prove that (1) his

16 attorney’s “representation fell below an objective standard of reasonableness,” and (2) his

17 attorney’s deficient performance prejudiced Casutt such that “there is a reasonable probability

18 that, but for counsel’s unprofessional errors, the result of the proceeding would have been

19 different.” Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984). I must apply a “strong

20 presumption that counsel’s conduct falls within the wide range of reasonable professional

21 assistance.” Id. at 689. “Counsel’s failure to make a futile motion does not constitute ineffective

22 assistance of counsel.” James v. Borg, 24 F.3d 20, 27 (9th Cir. 1994). The right to effective

23
     2
         Casutt was represented by different lawyers at various times during the pendency of this case.

                                                        2

       Case 2:20-cr-00231-APG-NJK            Document 266        Filed 05/16/25     Page 3 of 13




 1 assistance applies during “critical stages” of criminal proceedings, including plea bargaining.

 2 Missouri v. Frye, 566 U.S. 134, 140 (2012) (quotation omitted).

 3                 1. Conflict of Interest

 4         Casutt argues that his initial attorney, Assistant Federal Public Defender Brian Pugh, had

 5 a conflict of interest because Pugh was friends with “the guy that was lying about [Casutt].” ECF

 6 No. 251 at 9. Casutt does not clarify who this friend is. Additionally, Casutt asserts that Pugh

 7 was a former prosecutor who at one point had one of the convictions he had secured overturned

 8 due to misconduct, which made Pugh unwilling to accuse the prosecution in this case of

 9 misconduct. The government responds that Casutt fired Pugh early in his case and received

10 representation from other competent attorneys for the remainder; thus Casutt cannot show that

11 any conflict affected performance or resulted in prejudice.

12         The Sixth Amendment right to counsel includes a “correlative right to representation that

13 is free from conflicts of interest.” Wood v. Georgia, 450 U.S. 261, 271 (1981). To demonstrate

14 that he received unconstitutional representation due to a conflict, Casutt must “demonstrate that

15 an actual conflict adversely affected his lawyer’s performance.” Lockhart v. Terhune, 250 F.3d

16 1223, 1230 (9th Cir. 2001) (quotation omitted). An actual conflict is “a conflict that affected

17 counsel’s performance—as opposed to a mere theoretical division of loyalties.” United States v.

18 Walter-Eze, 869 F.3d 891, 901 (9th Cir. 2017) (quotation omitted). Casutt need not show actual

19 prejudice, only that “the attorney’s behavior seems to have been influenced by the conflict.”

20 Lockhart, 250 F.3d at 1231 (quotation omitted). “To establish an ‘adverse effect’ [Casutt] must

21 show that some plausible alternative defense strategy or tactic might have been pursued but was

22 not and that the alternative defense was inherently in conflict with or not undertaken due to the

23 attorney’s other loyalties or interests.” Walter-Eze, 869 F.3d at 901.



                                                     3

        Case 2:20-cr-00231-APG-NJK            Document 266        Filed 05/16/25      Page 4 of 13




 1          Casutt had his initial appearance on August 25, 2020. ECF No. 4. Pugh entered his

 2 appearance on September 8. ECF No. 19. Pugh made no motions in this case and Casutt moved

 3 for new counsel on March 3, 2021. ECF No. 38. On March 15, Magistrate Judge Koppe held a

 4 hearing, after which Pugh was replaced by another assistant federal public defender, who entered

 5 her appearance on March 23. ECF Nos. 41; 42. The new attorney and her cocounsel represented

 6 Casutt for nearly two years throughout pretrial proceedings up until Casutt moved to withdraw

 7 his guilty plea in January 2023. ECF Nos. 170; 175.

 8          Casutt has not shown that Pugh had an actual conflict or even a mere theoretical division

 9 of loyalties. According to Casutt, Pugh told him that Pugh “had a good relationship with the

10 prosecution, referring to them as friends and good people.” ECF No. 38 at 1. According to

11 Casutt, this “conflict” made Pugh unwilling to file more adversarial motions accusing the

12 prosecution of misconduct. The same could be said for many public defenders, regardless of

13 their prior experiences, who maintain an amicable relationship with the prosecutors they face in

14 court daily. Casutt must show that the conflict affected Pugh’s performance. And even after

15 Casutt received new counsel, those attorneys declined to pursue Casutt’s misconduct allegations

16 because they did not believe the motions were meritorious. See ECF No. 180 at 9-11 (sealed). 3

17          Even if there was an actual conflict, it did not adversely affect Pugh’s performance. Pugh

18 was Casutt’s attorney for only a few months and prior to any significant litigation in the case.

19 Casutt identified what he perceived as a conflict and asked to replace Pugh, and Pugh was

20 replaced. Casutt then had ample opportunity to ask his new counsel to raise the concerns Casutt

21 believed Pugh was unwilling to raise. Casutt argues that even after Pugh was no longer his

22

23 3
      Because Casutt places his attorneys’ decisions at issue, I will deem the attorney-client privilege
     waived for the narrow purpose of deciding this motion.

                                                      4

        Case 2:20-cr-00231-APG-NJK            Document 266        Filed 05/16/25      Page 5 of 13




 1 attorney, the same paralegals and other staff from the federal public defender’s office remained

 2 on his case. But he offers no evidence to impute any perceived conflict Pugh had to any other

 3 persons in his office. Casutt received representation free from actual conflicts, so I deny his

 4 motion as to conflicts of interest.

 5                  2. Pressure to Plead Guilty

 6           Casutt argues that Pugh pressured him to accept a plea by saying he had the “WORST

 7 JUDGE in this district” who “sentences more severely [than] any other judge.” ECF No. 251 at

 8 9. Casutt also asserts that Pugh threatened to subject Casutt to a psychological exam and find

 9 him unfit to make his own decisions so Pugh could enter a plea without Casutt’s resistance. The

10 government does not specifically respond to this argument but asserts that Casutt failed to meet

11 his burden on both ineffective assistance and prejudice.

12           An attorney applying undue pressure or threats to coerce a client into pleading guilty

13 could fall beneath the standard of reasonable representation. See Iaea v. Sunn, 800 F.2d 861,

14 866-67 (9th Cir. 1986) (acknowledging holdings where coercion by defense counsel can render a

15 plea involuntary). But even if these claims are true, Casutt cannot show that he was prejudiced

16 by this pressure. As already mentioned, Casutt fired Pugh early in this case and continued with

17 other counsel. At no time was Casutt deemed incompetent or unfit to make his own decisions in

18 this case. And although Casutt did eventually plead guilty, it was years after Pugh was removed

19 from the case and after vigorous litigation by Casutt’s new attorneys. Casutt has not pointed to

20 any evidence to show that it was Pugh’s alleged pressure that caused him to plead guilty, or that

21 he would not have pleaded guilty if not for that pressure. Thus, I deny his motion as to pressure

22 to plead.

23 / / / /



                                                      5

       Case 2:20-cr-00231-APG-NJK             Document 266        Filed 05/16/25      Page 6 of 13




 1                 3. Failure to Challenge Warrant and Indictment

 2         Casutt argues his attorneys were ineffective assistance for not challenging the search

 3 warrant for his home and electronic devices because the government made false statements in the

 4 supporting affidavit. Casutt claims that a similar false statement was made to secure his

 5 indictment. Casutt identifies two statements in the warrant and indictment that he claims were

 6 false: 4 (1) a reference to Casutt’s foundation and whether it needed to report to the state

 7 unemployment fund, and (2) that PPP loan proceeds must be used on certain permissible

 8 expenses. The government responds that Casutt’s attorneys made tactical decisions not to raise

 9 these challenges and Casutt has not shown that the result would have been different if his

10 attorneys had raised them.

11          Casutt’s attorneys made a reasonable strategic decision not to raise these arguments.

12 The attorneys challenged the search and statements Casutt made to investigators during the

13 search on other grounds in a motion to suppress. ECF Nos. 48; 60. Magistrate Judge Koppe held

14 a hearing on that motion, and after Casutt received an unfavorable ruling his attorneys objected

15 to Judge Koppe’s findings, which I denied. ECF Nos. 64; 66; 69; 70; 82. During the hearing on

16 Casutt’s first motion to withdraw his plea, Casutt acknowledged that he raised his concerns about

17 the supposed false statements with his counsel, who stated that at least three attorneys looked at

18 the issue and “litigated it the way that we believed it could have been litigated under precedent.”

19

20

21 4
     Casutt identifies other statements in his reply brief. ECF No. 264 at 3. But because he raises
   these arguments for the first time in reply and the government has had no opportunity to respond,
22
   I need not consider them. See Zumani v. Carnes, 491 F.3d 990, 997 (9th Cir. 2007) (“The district
   court need not consider arguments raised for the first time in a reply brief.”). Even if I were to
23
   consider these statements, Casutt fails to show that it was ineffective assistance to not challenge
   them or that such a challenge would lead to a different outcome.

                                                     6

       Case 2:20-cr-00231-APG-NJK           Document 266        Filed 05/16/25       Page 7 of 13




 1 ECF No. 180 at 9-11 (sealed). This strategic decision falls within the wide range of reasonable

 2 assistance.

 3         Casutt has also not shown that he was prejudiced by demonstrating that the outcome

 4 would have been different had his attorneys brought these challenges. The search warrant

 5 affidavit stated that Casutt’s charitable foundation had not made contributions to unemployment

 6 insurance, which was one of three reasons given to demonstrate that a representation on one of

 7 the loan applications was likely false. ECF No. 57 at 12. A charitable employer in Nevada may

 8 opt out of unemployment contributions by filing a written notice with the state Administrator.

 9 Nev. Rev. Stat. § 612.553(2)(b). But Casutt does not claim that his foundation ever filed the

10 required notice or explain how the government’s incomplete representation of this law

11 undermines the search warrant’s probable cause.

12         The second statement Casutt asserts is false and should have been attacked is “PPP loan

13 proceeds must be used by the business on certain permissible expenses—payroll costs, interest

14 on mortgages, rent, and utilities.” ECF No. 57 at 9. Casutt claims that the loans could be used to

15 pay for anything and that these enumerated expenses only apply to whether the loan is

16 forgivable. And because the period to apply for loan forgiveness or begin paying back the loan

17 had not yet run, Casutt argues he could have still complied with the law by repaying the loan.

18 But Casutt was not accused of abusing the loan forgiveness provision. Rather, he was accused of

19 making false statements on the loan application, which included how he would spend the loan

20 proceeds, the number of existing employees, and the amount of monthly payroll. See id. at 11-14.

21 Casutt has not established that the government’s statement about the PPP’s requirements was

22 material to finding probable cause for either the search warrant or indictment.

23



                                                    7

       Case 2:20-cr-00231-APG-NJK             Document 266        Filed 05/16/25      Page 8 of 13




 1         Casutt has not demonstrated that his attorneys’ decision not to challenge the statements

 2 used to obtain the search warrant and indictment fell outside the wide range of reasonable

 3 representation or that he was prejudiced by the decision. I therefore deny his motion on those

 4 grounds.

 5                 4. Motion to Withdraw Plea

 6         Casutt argues that his final counsel, Chris Mishler, who was appointed after Casutt

 7 moved to withdraw his plea, failed to pursue arguments Casutt made in his pro se motion to

 8 withdraw his plea. According to Casutt, Mishler did not pursue these arguments because he had

 9 a prior relationship with Casutt’s earlier counsel (Casutt does not clarify which previous counsel)

10 and they remained friends. Casutt raises this argument for the first time in his reply brief, so I

11 need not consider it. See Zumani, 491 F.3d at 997. But even if I were to consider its merits, it

12 fails for the same reasons as his other ineffective assistance claims.

13         Casutt claims that Mishler agreed his plea deal should be withdrawn but was constrained

14 by his friendship with prior counsel. But Mishler moved to withdraw Casutt’s plea, albeit

15 making a different argument than Casutt’s pro se motion. See ECF Nos. 170; 191. Mishler made

16 the strategic decision to present an argument he believed was supported by law. Casutt has not

17 demonstrated that this decision fell outside the wide range of reasonable representation. And

18 Casutt has not demonstrated that had Mishler maintained Casutt’s arguments, the outcome would

19 have been different. I therefore deny Casutt’s motion based on Mishler’s failure to withdraw his

20 plea agreement.

21         B. Prosecutorial Misconduct

22         Casutt’s claim of prosecutorial misconduct is based on the same allegedly false

23 statements in the search warrant affidavit and used to secure his indictment. The government



                                                     8

       Case 2:20-cr-00231-APG-NJK            Document 266         Filed 05/16/25     Page 9 of 13




 1 denies engaging in misconduct and argues that Casutt waived these challenges in his plea

 2 agreement and has not shown that any of these statements prejudiced him. Casutt replies that the

 3 government made false statements about the amount of PPP loans Casutt spent. He also asserts

 4 in his reply that the government withheld the fact that Casutt made “rent payments” to his

 5 foundation when securing the search warrant and indictment.

 6         As part of his plea agreement, Casutt waived “all collateral challenges, including any

 7 claims under 28 U.S.C. § 2255, to [Casutt’s] conviction, sentence, and the procedure by which

 8 the district court adjudicated guilt and imposed sentence, except non-waivable claims of

 9 ineffective assistance of counsel.” ECF No. 154 at 17. The Constitution requires that a guilty

10 plea be voluntary and that Casutt “make related waivers knowingly, intelligently, and with

11 sufficient awareness of the relevant circumstances and likely consequences.” United States v.

12 Ruiz, 536 U.S. 622, 629 (2002) (simplified). Casutt need only be aware of what rights he is

13 waiving in general even if he is unaware of the specific detailed consequences. Id. For example,

14 a defendant may enter a knowing, intelligent, and voluntary guilty plea despite misapprehending

15 the quality of the State’s case, misapprehending likely penalties, or where his counsel failed to

16 find a potential constitutional infirmity in grand jury proceedings. Id. at 630-31 (collecting

17 cases); see also United States v. McCloud, No. 21-16264, 2023 WL 3018064, at *1 (9th Cir. Apr.

18 20, 2023) (denying § 2255 motion in part because the prosecutor’s misrepresentations or

19 omissions at suppression hearing did not induce defendant to plead guilty).

20         Even if Casutt is correct that the government misstated facts or law while obtaining the

21 search warrant and indictment, he pleaded guilty voluntarily and knowingly with an

22 understanding of the nature of the charges against him and the consequences of his plea. See

23 ECF No. 173 at 5-16, 20-23. Casutt acknowledges that he has been pointing out these alleged



                                                     9

      Case 2:20-cr-00231-APG-NJK            Document 266        Filed 05/16/25     Page 10 of 13




 1 misrepresentations since early in his case while Pugh was still his attorney. See ECF No. 251 at

 2 9. His disagreement about Nevada unemployment law did not induce his guilty plea because he

 3 did not plead guilty for nearly two more years. Similarly, Casutt does not argue that the

 4 government not giving the grand jury information about the rent payments induced his guilty

 5 plea. And even if this omission had induced his plea, the prosecution was not obliged to present

 6 to the grand jury evidence of the rent checks. See United States v. Williams, 504 U.S. 36, 52-54

 7 (1992) (declining to require prosecutors to present exculpatory evidence to grand juries).

 8         Casutt’s assertion that the plea agreement misstated the amount of PPP money he spent

 9 also did not render his plea involuntary or unknowing. Casutt swore under oath that he had read

10 the plea agreement and that the factual basis for his plea was true. ECF No. 173 at 5, 8, 26-27.

11 And the amount of PPP money spent was not an element of either wire fraud or concealment

12 money laundering, which were the two counts Casutt pleaded guilty to. The amount spent was

13 not even material to sentencing because the plea agreement identified the intended loss of

14 $5,764,480 as the relevant amount for sentencing, and Casutt does not dispute this amount. ECF

15 No. 154 at 13-14. Casutt points to no evidence that the allegedly incorrect figure about how

16 much he spent induced him to plead guilty.

17         None of the government statements Casutt asserts are false prevented him from entering

18 an intelligent, knowing, and voluntary guilty plea or waiving related rights. Consequently, I

19 deny Casutt’s motion as to prosecutorial misconduct.

20         C. Actual Innocence

21         Casutt argues that the proffered testimony of his expert witness demonstrates that he is

22 actually innocent of wire fraud. The government responds that it does not understand Casutt to

23 be making a claim of factual innocence, as opposed to legal insufficiency, and that the expert



                                                   10

      Case 2:20-cr-00231-APG-NJK             Document 266         Filed 05/16/25     Page 11 of 13




 1 witness’s opinion is not sufficient to show that Casutt did not commit wire fraud. Casutt clarifies

 2 in his reply that he is arguing that he is actually and factually innocent.

 3         Casutt may seek collateral review of his plea “if he can establish that [a] constitutional

 4 error in his plea colloquy has probably resulted in the conviction of one who is actually

 5 innocent.” Bousley v. United States, 523 U.S. 614, 623 (1998) (quotation omitted). “It is

 6 important to note in this regard that ‘actual innocence’ means factual innocence, not mere legal

 7 insufficiency.” Id. To show that he is actually innocent, Casutt “must demonstrate that, in light

 8 of all the evidence, it is more likely than not that no reasonable juror would have convicted him.”

 9 Muth v. Fondren, 676 F.3d 815, 819 (9th Cir. 2012) (quotation omitted). Because Casutt entered

10 into a plea agreement, his showing of actual innocence must extend to charges forgone by the

11 government during plea bargaining. Bousley, 523 U.S. at 624.

12         Casutt has not demonstrated that, in light of all of the evidence, no reasonable juror

13 would have convicted him. Casutt relies on law professor Shaun Martin’s proffered testimony

14 that banks were being encouraged to approve pandemic relief loans without underwriting or

15 investigating, thus rendering any misrepresentations on loan applications immaterial. See e.g.,

16 ECF No. 161 at 14, 16-17, 35-37, 42-44. Professor Martin concluded that nothing in this case

17 would meet the Ninth Circuit standard of materiality. Id. at 61. But Professor Martin’s testimony

18 is not the law. A jury would be free to disregard his testimony in favor of other evidence. And

19 the government would be able to cross examine Professor Martin to test his credibility.

20 Considering other available evidence, a reasonable juror might not believe Professor Martin’s

21 assertion that nothing in Casutt’s loan applications was material. For example, evidence shows

22 that some bank officials requested additional supporting documents to verify Casutt’s payroll and

23 tax information and ultimately rejected his loan applications. See ECF Nos. 207-5; 207-6; 154 at



                                                     11

      Case 2:20-cr-00231-APG-NJK               Document 266      Filed 05/16/25       Page 12 of 13




 1 12-13; see also ECF No. 161 at 42-43 (Professor Martin testifying that if lenders knew the

 2 representations made to them were untrue that “would make a difference” because if they knew

 3 that the information the applicant provided was false, “they shouldn’t have lended,” would have

 4 been “participants in the fraud,” and lenders generally “did not want to be subjected to criminal

 5 liability for that”). Because Casutt has failed to meet his burden to establish that he is actually

 6 innocent of wire fraud and concealment money laundering, I deny his motion on that ground.

 7         D. Defective Warrant and Indictment

 8         Casutt argues that the government’s search warrant application and indictment were

 9 deficient because the government used false statements to obtain the warrant and indictment and

10 because the government withheld exculpatory information from those applications. The

11 government does not directly address this argument but responds that Casutt waived any such

12 collateral attacks in his plea agreement.

13         Casutt waived these arguments in his plea agreement. ECF No. 154 at 17. And as I

14 discussed with respect to his ineffective assistance of counsel claim, Casutt has not shown that

15 these alleged misrepresentations were material. I therefore deny his motion as to the search

16 warrant application and indictment.

17 III. CONCLUSION

18         I THEREFORE ORDER that defendant Brandon Casutt’s motion to vacate, set aside, or

19 correct his sentence (ECF No. 251) is DENIED.

20         I FURTHER ORDER that no certificate of appealability shall issue because reasonable

21 jurists would not find my assessment of the constitutional claims debatable or wrong and the

22 questions presented do not deserve encouragement to proceed further.

23



                                                     12

      Case 2:20-cr-00231-APG-NJK           Document 266       Filed 05/16/25     Page 13 of 13




 1        I FURTHER ORDER the Clerk of Court to enter a separate civil judgment denying

 2 defendant Brandon Casutt’s § 2255 motion. The Clerk shall file this order and the civil

 3 judgment in this case and in the related civil case number 2:24-cv-01882-APG.

 4        DATED this 16th day of May, 2025.

 5

 6
                                                ANDREW P. GORDON
                                                CHIEF UNITED STATES DISTRICT JUDGE
 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23



                                                  13

File and source

File

266.pdf

Size

186,078 bytes

SHA-256

b7d58e8a5d69ee16c9ffd3ed0369480fa6daf0d810d003612ea33a88abd0ade0

Our copy

266.pdf