                              In the
    United States Court of Appeals
                For the Seventh Circuit
                           ____________

Nos. 00-3744, 00-4152, 01-1663, 02-1268
FEDERAL TRADE COMMISSION,
                               Plaintiff-Appellee, Cross-Appellant,
                                  v.

THINK ACHIEVEMENT CORP., et al.,
                                       Defendants, Cross-Appellees,
                                 and

STEVEN F. STUCKER,
                                                Defendant-Appellee,
                                 and

WILLIAM H. TANKERSLEY and LINDA S. TANKERSLEY,
                         Defendants-Appellants, Cross-Appellees.
                          ____________
              Appeals from the United States District Court
        for the Northern District of Indiana, Hammond Division.
         No. 98 C 12—Theresa L. Springmann, Magistrate Judge.
                           ____________
    ARGUED SEPTEMBER 27, 2002Œ—DECIDED NOVEMBER 26, 2002
                           ____________




Œ
    No. 02-1268 was submitted, rather than argued, the same day.
2                    Nos. 00-3744, 00-4152, 01-1663, 02-1268

    Before POSNER, RIPPLE, and MANION, Circuit Judges.
  POSNER, Circuit Judge. The Federal Trade Commission
brought suit against William Tankersley (and corporations
controlled by him, but we can ignore that detail) seek-
ing relief against a wide-ranging, nationwide scheme to
defraud persons seeking employment by the Postal Ser-
vice of millions of dollars in the aggregate. The district
court granted summary judgment for the Commission,
and Tankersley appeals; he has also attempted to appeal
from a judgment for civil contempt entered against him,
but that appeal is untimely and is therefore dismissed. The
Commission cross-appeals from an order by the district
court releasing from a constructive trust imposed by the
court on Tankersley’s assets $25,000 to pay one of his
lawyers.
  It is rare for a judge to enter summary judgment in fa-
vor of the plaintiff in a fraud case, but in this case the
evidence was so overwhelming as to justify the district
court in dispensing with a trial. There is no need to de-
scribe the evidence, which is detailed in two published
opinions by the district court. FTC v. Think Achievement
Corp., 144 F. Supp. 2d 993, 1013 (N.D. Ind. 2000). So far as
the issue of fraud is concerned, only one matter warrants
further discussion. Tankersley’s telephone solicitors told
callers that if they bought his package of materials for
$46.95, they would be “guaranteed” to pass a test that
the Postal Service occasionally gives to applicants for em-
ployment “with a score of 95% or better . . . or your money
is refunded.” And sometimes it was refunded. Tankersley
argues that so long as an advertisement offers consumers
a money-back guaranty, the falsity of the claim in the ad-
vertisement (for it was indeed false) is irrelevant because
harmless.
Nos. 00-3744, 00-4152, 01-1663, 02-1268                     3

  The argument (which has been repeatedly rejected, see,
e.g., Montgomery Ward & Co. v. FTC, 379 F.2d 666, 671
(7th Cir. 1967); FTC v. Pantron I Corp., 33 F.3d 1088, 1103
(9th Cir. 1994); FTC v. SlimAmerica, Inc., 77 F. Supp. 2d
1263, 1273 (S. D. Fla. 1999)) puts one in mind of Holmes’s
theory of liability for breach of contract: he said that the
only duty a contract imposes is to perform or pay damages.
See Oliver Wendell Holmes, Jr., The Common Law 300-
02 (1881); Holmes, “The Path of the Law,” 10 Harv. L. Rev.
457, 462 (1897). Similarly, Tankersley wants us to inter-
pret his advertised guaranty as an undertaking merely to
refund the purchase price. This might be a tenable argu-
ment if obtaining a refund were costless, but of course it
is not. It is a bother. No one would buy something know-
ing that it was worthless and that therefore he would have
to get a refund of the purchase price. Had Tankersley’s
solicitors said, “If you buy our materials it may help you
to get a higher score on the postal exam if and when the
exam is given in your area, and if it doesn’t help you, we’ll
refund your money,” there would be no false representa-
tion (provided they really did refund upon request, which
in fact they did only sporadically). But that is not what they
said. They said buy the materials and it’s a sure thing
that you’ll score 95 percent or better on the test, and that
was a lie and it was not redeemed by their offering a re-
fund that, as they well knew, many consumers would not
bother to seek, since it was only $46.95. FTC v. Pantron I
Corp., supra, 33 F.3d at 1103; cf. Lustiger v. United States,
386 F.2d 132, 138 (9th Cir. 1967).
  There is a further point. Some recipients of Tankersley’s
materials might have scored 95 or better on the test had
they never bought them. They would still be victims of
fraud, had they bought the materials because they were
deceived into thinking that the materials would guarantee
them a score of 95; yet they would not be entitled to their
4                    Nos. 00-3744, 00-4152, 01-1663, 02-1268

money back. This is another reason why a money-back
guaranty does not sanitize a fraud.
  The only other issue that merits discussion is the pro-
priety of the district court’s releasing $25,000 from the
constructive trust to pay the fee of a lawyer representing
Tankersley in a criminal case arising out of the fraud. At
the outset of the present suit the court had frozen certain
assets of Tankersley, and placed them in the hands of a
receiver, to preserve the possibility of providing some fi-
nancial redress to the victims of his fraud should the fraud
be proved in the course of the litigation. That was in January
1998; in March, and again in February and March of the
following year, the district court directed the receiver to
release some of the funds to Tankersley’s lawyer. In Octo-
ber 2000 the court entered its final judgment, ordering
restitution (via the FTC) to the victims of Tankersley’s fraud
in the amount of $28 million, with the entire amount
of Tankersley’s assets held by the receiver or the FTC—an
amount equal at the most to 10 percent of the $28 million—
to be applied to the satisfaction of the judgment. It was
after the entry of that judgment that the court ordered
the receiver to release $25,000 of the frozen assets to pay
Tankersley’s criminal lawyer the balance of the fee that
he had charged his client. The court’s authority to order
restitution to the victims and as an incident thereto to
place the frozen assets in trust for them is not and cannot
be questioned. 15 U.S.C. § 53(b); FTC v. Amy Travel Ser-
vice, Inc., 875 F.2d 564, 572 (7th Cir. 1989); McGregor v.
Chierico, 206 F.3d 1378, 1387 (11th Cir. 2000).
  It was okay for the district court, prior to the entry of the
final judgment against Tankersley, to permit some of the
frozen assets to be used to pay the lawyer who was defend-
ing him against the FTC’s suit. See FTC v. Amy Travel Ser-
vice, Inc., supra, 875 F.2d at 575-76; FTC v. World Travel
Nos. 00-3744, 00-4152, 01-1663, 02-1268                      5

Vacation Brokers, Inc., 861 F.2d 1020, 1032 (7th Cir. 1988).
For there was not yet a judicial determination of what
fraction of those assets was legitimate wealth of Tankersley
and what fraction represented proceeds of fraud to which
he had no equitable entitlement. But once the court de-
termined that all the frozen assets were either a product
of fraud or necessary to compensate the victims of the
fraud for their losses, Tankersley had no right to use any
part of the frozen money for his own purposes, purposes
that included defending himself against criminal charges.
Even if he has no other money (which is unclear), he will
not go undefended, since an indigent criminal defendant
is entitled to a defense paid for by the government. “A
defendant has no Sixth Amendment right to spend an-
other person’s money for services rendered by an attorney,
even if those funds are the only way that that defendant
will be able to retain the attorney of his choice.” Caplin &
Drysdale, Chartered v. United States, 491 U.S. 617, 626 (1989).
Why should the victims of Tankersley’s fraud be made to
finance his defense to a criminal prosecution? CFTC v.
Morse, 762 F.2d 60, 63 (8th Cir. 1985); FTC v. Amy Travel
Services, Inc., 1988 WL 40817 at *1 (N.D. Ill. 1988). As there
is no answer to this question, to make them do so would
have been an abuse of the district court’s equitable dis-
cretion, which though considerable is of course not un-
limited. In re Grand Jury Proceedings Empanelled May 1988,
894 F.2d 881, 887 (7th Cir. 1989).
  Our conclusion is limited, however, to situations in
which the defendant is seeking to tap a fund in which
he has no lawful interest to pay a lawyer for future ser-
vices. The issue is more complicated if the lawyer ren-
dered services before the judgment determining the de-
fendant’s lack of a lawful interest was issued. Suppose
that when the freeze was first imposed, the district
court estimated that $100,000 of the frozen money was
6                   Nos. 00-3744, 00-4152, 01-1663, 02-1268

lawfully Tankersley’s, and it therefore told his crim-
inal lawyer that he could count on being able to obtain
up to that amount from the fund to pay his fee for de-
fending Tankersley. The fact that later the $100,000 fig-
ure turned out to be an overestimate of Tankersley’s law-
ful interest in the frozen assets would not bar the court
from allowing the lawyer to receive that amount, since
it was on that understanding that he had undertaken the
representation of Tankersley. He would be an innocent
third party with his own equitable claim to balance
against that of the victims of the defendant’s fraud. But
the $25,000 awarded to Tankersley’s lawyer was for repre-
senting Tankersley in a criminal case not scheduled to be
tried until after the final judgment in the present case
was rendered; and the lawyer acknowledged that he had
not yet spent any time on Tankersley’s case as of that
date—the date on which it was established that no part
of the frozen assets was lawful property of Tankersley.
  The $25,000 order is therefore reversed, but in all other
respects the judgment is affirmed.
                     AFFIRMED IN PART, REVERSED IN PART.

A true Copy:
       Teste:

                          _____________________________
                          Clerk of the United States Court of
                            Appeals for the Seventh Circuit




                   USCA-02-C-0072—11-26-02
