Thread by @obarcala

Avenatti loses his bid to compel noted criminal defense attorney Mark Geragos (also known as Co-Conspirator 1) to testify at his trial assets.documentcloud.org/documents/6672…

Geragos would absolutely plead the 5th if he were called, so Avenatti moved that the Court (1) pre-emptively hold that he cannot assert the privilege at trial or (2) compel the feds to give him immunity or dismiss the indictment

Avenatti argued that Geragos waived the privilege when he conducted two "innocence proffer" meetings with DOJ. The purpose was to get DOJ to drop the conspiracy charge against Geragos, which they ultimately did. He says the refusal to call Geragos now is "unfair gamesmanship"

In fairness, the facts in the criminal complaint do allege that Geragos was an active participant in the scheme. It says Avenatti and Geragos (CC-1) both used threats to extort Nike unless they hired both Avenatti and Geragos to conduct an investigation

Geragos had to either do something fast or he'd be in the next indictment. So he lawyers up and goes to talk to the USAO to explain how he's really just an innocent patsy who got swept up in Avenatti's shenanigans. He signed this proffer agreement both times.

The agreement essentially says Geragos waived the 5th Amendment privilege as to any information given during the proffer session, but with the important caveat that the waiver would be "in any prosecution brought against Client" (i.e., Geragos)

Geragos' story went like this: a friend asked him to give Avenatti a small loan of $250k (and then another loan). Then Avenatti texts Geragos to clue him in to a great new case. He never discussed Avenatti's goals or strategy, but thought he just wanted to give Nike a "heads up"

Avenatti said he wanted to do an internal investigation that could be worth hundreds of millions. Geragos thought it was "fanciful" that Nike would hire them to do it. But he started getting "troubled" at the second meeting "when a Nike lawyer proposed a lump sum payment"

Geragos says he pulled Avenatti out of the meeting and told him he "was going down a road he did not think they could go down." He said he had to convey the "payoff" to the client. He said they might be "treading close to the line," and never intended to go to the next meeting

You can see the deal he's making here—Geragos is excusing his own role in the scheme while simultaneously giving DOJ evidence that Avenatti knew the conduct was extortionate.

And wouldn't you know, DOJ files a superseding indictment rebranding Geragos from CC-1 to "Attorney-1"

Avenatti argues that Geragos waived his right to plead the 5th or, alternatively, that it would violate due process to allow Geragos to refuse to testify because he "is a key figure in this case and is critical to Mr. Avenatti's defense"

The problem w/ his first argument is that it's "well established that a waiver of the privilege in one proceeding does not affect the rights of a witness...in another proceeding"

Here, Geragos only agreed to allow DOJ to use his statements "against him," he did not agree "to never assert his Fifth Amendment privilege in a subsequent proceeding." The proffer itself does not prevent Geragos from asserting the privilege at Avenatti's trial

Avenatti argues the 5th no longer applies b/c DOJ "accepted Mr. Geragos'[s] claim of innocence." The idea being, now he can't claim that he's at risk of prosecution.

Court says DOJ may have dropped charges, but it never said, formally or informally, he wouldn't be prosecuted

Avenatti says so what, they've "obviously decided not to prosecute him." But "[a]s many defense lawyers have found out to their chagrin...it is dangerous to predict in what cases the government will proceed with a criminal prosecution." It's all up to the prosecutor's discretion

As to his alternative argument, it's true that DOJ can request that a court order a witness to testify in exchange for immunity for that testimony.

But SCOTUS has also held that "no court has authority to immunize a witness. That responsibility...is peculiarly an executive one"

There is a point at which due process requires DOJ to choose, but a def has to make two showings—(1) that DOJ used immunity in a discriminatory way (like refusing to grant to w/hold exculpatory info), and (2) the testimony would be material, exculpatory, and not cumulative

"Avenatti's Due Process argument fails for multiple reasons." First, he has not shown Geragos has exculpatory info. Avenatti wants Geragos to say he "expressed no reservations" about the scheme.

But "Geragos's state of mind is not at issue, because he is not on trial."

And b/c didn't show it would be exculpatory, he can't show DOJ acted in bad faith in refusing to seek immunity.

In a fn, the court points out Geragos's info actually seems inculpatory—he said at proffer that Avenatti was "doing down a road he did not think they could go down"

Likewise, he can't show DOJ used immunity in a discriminatory way b/c it has not sought immunity for or entered a non-pros agreement w/ anyone.

Finally, he can't show the info he wants isn't available from other sources. In fact, Geragos's participation will be shown on video

Long story short, the motion fails, fails, and fails again, and it's denied.