Thread by @innercitypress

OK - US v. Michael Avenatti, NIKE case, final pre-trial conference, Inner City Press will be live tweeting it: thread

@MatthewLeeICP @sdnylive @FUNCA_info @yashar @LeaBlackMiami @DanWetzel Judge Paul G. Gardephe is starting with reading his rulings on various pending motions in the run-up to trial.
Judge Gardephe: The Orange County court has issued a writ of execution against Avenatti for $2 million. It demonstrates that Avenatti had not been paying

@MatthewLeeICP @sdnylive @FUNCA_info @yashar @LeaBlackMiami @DanWetzel Judge Gardephe: Judgments of more than $7 million have been entered against Avenatti. All became pressing leading up to the March 2019 crimes that are the subject of the instant case. The government says his office manager will quote Avenatti money was coming in

@MatthewLeeICP @sdnylive @FUNCA_info @yashar @LeaBlackMiami @DanWetzel Judge Gardephe: The government wishes to put in evidence of Gardephe's financial condition in its direct case. As 2d Circuit said in US v. Hernandez (a drug importation case), the relevancy of a fast and lucrative transaction to paying off debts is obvious

@MatthewLeeICP @sdnylive @FUNCA_info @yashar @LeaBlackMiami @DanWetzel Judge Gardephe: Here, the prejudice would outweigh the probative value. None of the cases cited by the government suggest I should suggest en masse these financial records. The analysis may be different on cross-examination, as in US v. Hernandez.

@MatthewLeeICP @sdnylive @FUNCA_info @yashar @LeaBlackMiami @DanWetzel Judge Gardephe: Finally the US cites US v. Shine. In that case defendant moved in limine to preclude evidence of his financial situation, without any explanation. His motion was denied, citing Hernandez. Shine adds nothing to the analysis here.

@MatthewLeeICP @sdnylive @FUNCA_info @yashar @LeaBlackMiami @DanWetzel Judge Gardephe: I will now turn to Rule 403. The US says Avenatti was $15 million in debt and owed money to Mark Garagos, and for child support ... This carries a significant risk of unfair prejudice. Garagos is a central figure in the case.

@MatthewLeeICP @sdnylive @FUNCA_info @yashar @LeaBlackMiami @DanWetzel Judge Gardephe: I cannot permit the trial to devolve into a lengthy analysis of Avenatti's finances. I will allow the US to introduce the judgments, total of $7.2 million, $ million of child support - but not how the obligations arose, that would be prejudicial.

@MatthewLeeICP @sdnylive @FUNCA_info @yashar @LeaBlackMiami @DanWetzel Judge Gardephe: It appears unlikely to me at this time that Garagos will testify in this trial. The office manager will not be permitted to testify about to how much Avenatti owed - excluded under Rule 403.

@MatthewLeeICP @sdnylive @FUNCA_info @yashar @LeaBlackMiami @DanWetzel Judge Gardephe: Avenatti has asked to exclude all evidence of his negotiations with Nike, since both sides had agreed these were confidential settlement talks. But under Rule 408 these agreements do no immunize against criminal liability.

@MatthewLeeICP @sdnylive @FUNCA_info @yashar @LeaBlackMiami @DanWetzel Judge Gardephe: Rule 408 has no application in a criminal case such as this. Avenatti also cites an alleged common law privilege for settlement negotiations, citing FRE 501. But that rule says that common law privileges only survive where Congress has not spoken

@MatthewLeeICP @sdnylive @FUNCA_info @yashar @LeaBlackMiami @DanWetzel Judge Gardephe: So Avenatti's motion to exclude evidence of his communications with NIKE is denied.

Now as to proposed experts. The US proposes a Stanford professor about Avenatti's alleged breach of duty to Gary Franklin. This has led to an avalanche of filings

@MatthewLeeICP @sdnylive @FUNCA_info @yashar @LeaBlackMiami @DanWetzel [For those asking, Avenatti is wearing a dark short-sleeved shirt, until the suited lawyers: his Scott Srebnick; AUSAs Robert B. Sobelman and Daniel Richenthal, whom Inner City Press readers may remember from the UN bribery cases v Ng Lap Seng and Patrick Ho]

@MatthewLeeICP @sdnylive @FUNCA_info @yashar @LeaBlackMiami @DanWetzel Judge Gardephe: Avenatti sought a Daubert hearing. At a Dec 17 conference in this case, I pointed out the US would be required to prove breach of a professional duty, so information about the duties appeared relevant to me, and were beyond the ken of most jurors

@MatthewLeeICP @sdnylive @FUNCA_info @yashar @LeaBlackMiami @DanWetzel Judge Gardephe: While rules of attorney professional conduct are relevant, I won't allow them to take over the case. It is unlikely I will permit the US to call a second expert witness on this.

@MatthewLeeICP @sdnylive @FUNCA_info @yashar @LeaBlackMiami @DanWetzel [Pardon the brief pause in Avenatti coverage - dealing with seeming hindering of such coverage of upcoming (Jan 24) similar pre-trial conference in CIA / #Vault7 case US v. Schulte, see Inner City Press' letter this morning: innercitypress.com/sdny2schultepu…

@MatthewLeeICP @sdnylive @FUNCA_info @yashar @LeaBlackMiami @DanWetzel Judge Gardephe: Rule 702 prohibits experts from testifying on legal issues on which the judge will instruct the jury. It would be an abuse of discretion to allow such testimony. Prof Engstrom would have to offer a legal conclusion. I cannot permit it.

@MatthewLeeICP @sdnylive @FUNCA_info @yashar @LeaBlackMiami @DanWetzel Judge Gardephe: Now, choice of law. Which state's ethics law applies? California? New York? Oregon? California rule 8.5b2 applies to conduct not related to a pending case, and states, the rule of jurisdiction in which conduct appears, or the impacted jurisdiction

@MatthewLeeICP @sdnylive @FUNCA_info @yashar @LeaBlackMiami @DanWetzel Judge Gardephe: Avenatti was in New York March 19-21 [2019], and had two in person and one telephonic contact with Nike. Avenatti says the predominant effect would have been in NY, where SDNY where was conducting the NCAA criminal investigation

@MatthewLeeICP @sdnylive @FUNCA_info @yashar @LeaBlackMiami @DanWetzel Judge Gardephe: The government argues there are overarching duties of lawyers, not tethered to any state's rules. I reject the government's contention [about lack of tethering]. The indictment pleads that Avenatti is a member of the California bar...

@MatthewLeeICP @sdnylive @FUNCA_info @yashar @LeaBlackMiami @DanWetzel Judge Gardephe: So the jury will hear that California legal ethics apply. I'm ready to hear the parties.
AUSA: As I hope we made clear in our lengthy briefing that your Honor recounted-
Judge Gardephe: What I meant by beyond the ken is the rules must be presented.

@MatthewLeeICP @sdnylive @FUNCA_info @yashar @LeaBlackMiami @DanWetzel Judge Gardephe: As to the agent, I wasn't sure what he was going to say. You should give me a better idea. We can't spend days on this. Some evidence of financial condition with regard to motive is fine. But it can become cumulative.

@MatthewLeeICP @sdnylive @FUNCA_info @yashar @LeaBlackMiami @DanWetzel Avenatti's lawyer Scott Srebnick: During a settlement meeting on March 19 between Mr. Avenatti, Mr Garagos and Nike, Mr Avenatti allowed one lawyer from Boies Schiller, Mr. Wilson, to review Franklin's memorandum of action. It seems the US calls this a violation

@MatthewLeeICP @sdnylive @FUNCA_info @yashar @LeaBlackMiami @DanWetzel Srebnick: Then after the press conference saying Mr. Avenatti extorted NIKE, now the government claims Mr. Avenatti's tweets violated his duty to Mr. Franklin. But this was post arrest conduct. Post arrest tweets are irrelevant.

@MatthewLeeICP @sdnylive @FUNCA_info @yashar @LeaBlackMiami @DanWetzel Assistant US Attorney Matthew D. Podolsky: there were pre-arrest tweets too. And those after arrest are not irrelevant. We're happy to brief that.
Judge Gardephe: Sounds like you need to put it in writing.

@MatthewLeeICP @sdnylive @FUNCA_info @yashar @LeaBlackMiami @DanWetzel Scott Srebnick: It seems we will not be permitted to put in evidence of Mr. Avenatti's earning potential, other cases, which would have effected his state of mind.
Judge Gardephe: If he puts on evidence of his financial condition, that is likely to open the door

@MatthewLeeICP @sdnylive @FUNCA_info @yashar @LeaBlackMiami @DanWetzel Judge Gardephe: I want to proceed to trial on January 27. That afternoon we can meet about the questionnaires. Tuesday we'd conduct voir dire, which will take time because we'll have to question the members of the panel. Could take all day Tuesday.

@MatthewLeeICP @sdnylive @FUNCA_info @yashar @LeaBlackMiami @DanWetzel Avenatti's lawyer Srebnick: I would propose trial start on February 3. It is taking me a lot of time to get into the MCC jail. Mr. Avenatti hasn't even gotten some of the discovery yet. Our tech support person is not around now.

@MatthewLeeICP @sdnylive @FUNCA_info @yashar @LeaBlackMiami @DanWetzel Judge Gardephe: The request to delay the trial is denied.
Srebnick: He is in solitary confinement. It is impacting mental state. Ask BOP to consider moving him to a situation that is less confining.
Judge Gardephe: It was my expectation you could see him in MCC.

@MatthewLeeICP @sdnylive @FUNCA_info @yashar @LeaBlackMiami @DanWetzel Judge Gardephe: If my order he have access to the 3500 material and his lawyers cannot be complied with in the current venue, I am open to another venue. It is inappropriate for the Court to get too involved. But if it has reached that point, I do get involved

@MatthewLeeICP @sdnylive @FUNCA_info @yashar @LeaBlackMiami @DanWetzel Assistant US Attorney Daniel Richenthal says This case has nothing to do with President Trump. But they keep trying to inject it.

@MatthewLeeICP @sdnylive @FUNCA_info @yashar @LeaBlackMiami @DanWetzel Avenatti passes a piece of paper to his pro hac vice who is walking to the podium. He says, "I'll begin with the evidence with regard to Stormy Daniel." It was Mr. Avenatti's profile from that case that led Franklin and Auerbach to choose Avenatti to expose Nike.

@MatthewLeeICP @sdnylive @FUNCA_info @yashar @LeaBlackMiami @DanWetzel The pro hace vice lawyer for Avenatti said he wants to include this in his opening statement. "I would seek the court's guidance... Reference to the President would be during cross examination, that Mr Avenatti was offered as a target for the SDNY.

@MatthewLeeICP @sdnylive @FUNCA_info @yashar @LeaBlackMiami @DanWetzel Avenatti's lawyer: The Boies lawyer knew that Mr. Avenatti was provide an attractive target for the SDNY prosecutors. We'd like to get into that during cross examination.
Judge Gardephe: Let's talk about opening statements.
Richenthal: We are deeply troubled

@MatthewLeeICP @sdnylive @FUNCA_info @yashar @LeaBlackMiami @DanWetzel AUSA Richenthal: The only state of mind relevant in this trial is Mr. Avenatti's. Not Mr. Franklin's or Mr. Auerbach's.

Judge Gardephe: But you allege in the indictment that "Mr Avenatti had a large following due to media"

@MatthewLeeICP @sdnylive @FUNCA_info @yashar @LeaBlackMiami @DanWetzel Judge Gardephe: The reason the large public following is important is that his threat against Nike was to hold a press conference. The reasons for the following is the representation of Stormy Daniel and case against the President. Difficult to keep this out.

@MatthewLeeICP @sdnylive @FUNCA_info @yashar @LeaBlackMiami @DanWetzel Judge Gardephe: Let's be honest, it (prior representation of Stormy Daniel and public posture) drove everyone in this case: Franklin, Nike... He could call a press conference and hurt Nike. The jury needs to know why he had this public following.

@MatthewLeeICP @sdnylive @FUNCA_info @yashar @LeaBlackMiami @DanWetzel AUSA Richenthal: We are not backing away from that he had a public persona. But does the jury need to know why? Under Rule 403, is that proper to bring before the jury? The "why" doesn't go to much of anything. Once the door is open it's clear where it going to go

@MatthewLeeICP @sdnylive @FUNCA_info @yashar @LeaBlackMiami @DanWetzel AUSA Richenthal: We think the door is opening, and we're trying to keep it closed.
Avenatti's lawyer: I've read all the text messages before Franklin and Auerbach. They chose Avenatti because he represented Stormy Daniel. It would be in my opening statement.

@MatthewLeeICP @sdnylive @FUNCA_info @yashar @LeaBlackMiami @DanWetzel Avenatti's lawyer: I would be telling the jury that Franklin and Auerbach were motivated to hire Avenatti given the Stormy Daniel case. They looked at over 100 videos of Avenatti press conferences. Now Auerbach claims he wanted low profile. Inconsistent.

@MatthewLeeICP @sdnylive @FUNCA_info @yashar @LeaBlackMiami @DanWetzel AUSA Richenthal: I think these statements are inadmissible. We're against the defense including this in their opening statement. It is inflammatory... Mr. Avenatti refers to "Trump" but no one responds to it... It should not be in the opening statement

@MatthewLeeICP @sdnylive @FUNCA_info @yashar @LeaBlackMiami @DanWetzel Judge Gardephe: Sounds like I need to see the text messages, since I'm hearing different things. Mr. Srebnick said they say Avenatti was hired because he represented Stormy Daniel against the President... Articles says "he rose to prominence" by suing President

@MatthewLeeICP @sdnylive @FUNCA_info @yashar @LeaBlackMiami @DanWetzel Judge Gardephe: If you think he became a public figure for another reasons, I'll hear it.

Richenthal: I'm not on Twitter, I don't purport to understand how Mr. Avenatti became a public figure.

[Inner City Press question: which SDNY AUSAs *are* on Twitter? reply]

@MatthewLeeICP @sdnylive @FUNCA_info @yashar @LeaBlackMiami @DanWetzel Judge Gardephe: I guess he need to take a recess, to give the court reporter time.
"All rise!"
Thread will continue when they do.
Stories to follow in InnerCityPress.com and patreon.com/MatthewRussell…

@MatthewLeeICP @sdnylive @FUNCA_info @yashar @LeaBlackMiami @DanWetzel Judge Gardephe is back & says, Nothing would make me happier than to keep this out of evidence. But we can't pretend by immaculate conception Mr. Avenatti became well known. In my robing room I couldn't think of a lawyer with more notoriety. It's part of the story

@MatthewLeeICP @sdnylive @FUNCA_info @yashar @LeaBlackMiami @DanWetzel Judge Gardephe: I will be shocked if we don't have a lot of people on the jury who says they know Michael Avenatti sued the President for Stormy Daniel. If they say they can be fair, it's unlike I'll excuse them for cause.

@MatthewLeeICP @sdnylive @FUNCA_info @yashar @LeaBlackMiami @DanWetzel Avenatti's lawyer: Here's an exhibit, 631, Franklin and Auerbach texting. On Feb 13, 2019, they texted: "Michael Avenatti doubles down on Trump claim." There's a CNN link; "Stormy Lawyer Talks Cohen."
Avenatti's lawyer adds that Michael Cohen also has notoriety.

@MatthewLeeICP @sdnylive @FUNCA_info @yashar @LeaBlackMiami @DanWetzel Avenatti's lawyer: On Avenatti's profile, "Trump told bucket of lies"..."Stormy Daniel's Lawyer, 'This is a warning shot.'" Auerbach sends 119 videos. Gary let me know when you're ready.
"Yep, just finished. This guy may not take it cuz I can't afford him."

@MatthewLeeICP @sdnylive @FUNCA_info @yashar @LeaBlackMiami @DanWetzel Judge Gardephe: I don't know what Mr. Franklin is going to say. But the question is whether Mr. Srebnick has a good faith basis to believe Mr. Franklin chose Mr. Avenatti based in part on his representation of Stormy Daniel...

@MatthewLeeICP @sdnylive @FUNCA_info @yashar @LeaBlackMiami @DanWetzel Avenatti's lawyer: The messages between Franklin and Auerbach show they wanted to either get a settlement or expose. The question is, What were the expectation conveyed to Mr. Avenatti, who was seeking a legal fee...

@MatthewLeeICP @sdnylive @FUNCA_info @yashar @LeaBlackMiami @DanWetzel Avenatti's lawyer: I intend to raise in my opening statement a NYT article about its senior partner having conflict of interest issues, in the context of the meeting with Garagos and Avenetti.
Judge Gardephe: Mr. Boies himself wasn't involved in this case.

@MatthewLeeICP @sdnylive @FUNCA_info @yashar @LeaBlackMiami @DanWetzel Judge Gardephe: Why do we care about David Boies, who wasn't involved in the conversations your client had, and wouldn't have been involved in an internal investigation?
Avenatti's lawyer: The Boies Schiller firm had in fact conducted an internal investigation

@MatthewLeeICP @sdnylive @FUNCA_info @yashar @LeaBlackMiami @DanWetzel Avenatti's lawyer: In the Boies Schiller internal investigation, they didn't even interview Gary Franklin.
Judge Gardephe: I see no reason to drag David Boies into this case. And it was not a three person law firm. It has 100s of lawyers, many of them prominent.

@MatthewLeeICP @sdnylive @FUNCA_info @yashar @LeaBlackMiami @DanWetzel Judge Gardephe: We are not going, in this case, to go into the material in this NYT article, about Bush v. Gore, Harvey Weinstein... No.
Avenatti huddles with his lawyers, Avenatti pointed at computer screen. They emerge: "Govt Exhibit 103."

@MatthewLeeICP @sdnylive @FUNCA_info @yashar @LeaBlackMiami @DanWetzel Avenatti's lawyer: "Garagos asked, "Where are you?' Avenatti answered, In DC on way to Chicago. Tell Nike we will only deal directly with them."
Now he notes NYT let Boies go after finding he did investigations of Harvey Weinstein's victims.

#2020

@MatthewLeeICP @sdnylive @FUNCA_info @yashar @LeaBlackMiami @DanWetzel Judge Gardephe: I've got to cut this off. They [the Government] marked it as an exhibit but they don't intend to use it. It is not going to come in.

@MatthewLeeICP @sdnylive @FUNCA_info @yashar @LeaBlackMiami @DanWetzel Avenatti's lawyer: Boies Schiller has spend / charged up to $100 million for an internal investigation.

Judge Gardephe: But does that cost matter? Tyco was a massive corporate fraud - are we going to pretend that is comparable? I don't see the connection.

@MatthewLeeICP @sdnylive @FUNCA_info @yashar @LeaBlackMiami @DanWetzel Avenatti's lawyer: Mr. Wilson of the Boies Schiller firm said that an investigation like this could cost 10 to 20 million dollars.

Judge Gardephe: Then you have the evidence you need.

@MatthewLeeICP @sdnylive @FUNCA_info @yashar @LeaBlackMiami @DanWetzel Judge Gardephe: Why do you claim Franklin in 2019 had in mind what Nike said in 2017 about the basketball scandal?
Avenatti's lawyer: US Attorney Berman said the investigation was ongoing.
Judge Gardephe: I'm going to allow some evidence of Frankin's state of mind

@MatthewLeeICP @sdnylive @FUNCA_info @yashar @LeaBlackMiami @DanWetzel Judge Gardephe, to Avenatti's lawyers: You could say in your opening that Franklin thought Nike was being hypocritical in what they claimed about their rectitude with regard to amateur athletics. But not with the Sept 2017 press release, at least at first

@MatthewLeeICP @sdnylive @FUNCA_info @yashar @LeaBlackMiami @DanWetzel Judge Gardephe: Again, it's part of the story: Avenatti wanted Garagos on this because Garagos had a previous relationship with Nike. But the Colin Kaepernick? You can just say a "prominent football player." Unless you show me it's on the tape

@MatthewLeeICP @sdnylive @FUNCA_info @yashar @LeaBlackMiami @DanWetzel As we hit 4 hours in this pre-trial conference, Avenatti is pointing out things on the computer monitor to his lawyers. Text says, Watch Avenatti's press conference on R. Kelly investigation.
Judge Gardephe: If you can tie it to the reasons why Franklin hired him

@MatthewLeeICP @sdnylive @FUNCA_info @yashar @LeaBlackMiami @DanWetzel Judge Gardephe: Jurors are going to want to know if the trial will be over by President's Day, February 17. Are you comfortable with me telling them that? ... I'm going to tell them it will take two and a half weeks.

@MatthewLeeICP @sdnylive @FUNCA_info @yashar @LeaBlackMiami @DanWetzel Judge Gardephe: In an ordinary case I would see you all on Friday. But given all the issues, we'll do it next Monday after we distribute the questionnaire.
Avenatti's lawyer: I'm told the BOP will make a computer available to him. He has notes on his laptop.

@MatthewLeeICP @sdnylive @FUNCA_info @yashar @LeaBlackMiami @DanWetzel Judge Gardephe: Mr. Srebnick if you have difficulties with access, let me know.
Srebnick: What about appropriate attire for Mr. Avenatti?
Judge Gardephe: If you need an order, tell me.
It's over. Stories coming on InnerCityPress.com & patreon.com/MatthewRussell…

@MatthewLeeICP @sdnylive @FUNCA_info @yashar @LeaBlackMiami @DanWetzel Post script: The Marshals have taken Avenatti into courtroom's witness room so he can meet with his lawyers, for 15 or so min they say. Will also (much) later, after catching up with other cases like US v. Schulte, #Periscope and podcast podcasts.google.com/?feed=aHR0cHM6…