Thread by @meghanncuniff

I’m here at the OC federal building, and it turns out Michael Avenatti will *not* be here in person for the 9 am pre-trial hearing. “We decided to play it safe,” his lawyer Dean Steward told me in the hallway just now, referring to covid19. #housearrest

Court clerk observes: “I think the government needs to invest in a barber.”
“Until we get to the orange tier, I’m not cutting,” Prosecutor Brett Sagel says.
Sagel asks Steward about Avenatti, and Steward says he’ll be on the phone.

Sagel is arguing against severance first. At issue is NFL settlement theft. Selna tentatively is allowing it to be mentioned in the client theft counts, but Sagel says it’s intertwined with the bankruptcy fraud, too, because Avenatti hid it from bankruptcy court.

Judge Selna is surrounded by plexiglass but also wearing a black mask, so his voice is a little muffled. Sagel says they’ll go with severance decision so long as they can still discuss @NFL settlement theft in the bankruptcy fraud counts.

“My inclination is to sever as I indicated but to allow that evidence to be entered,” Selna says. Prosecutors will file a statement indicating how exactly they’ll use NFL settlement theft in the bankruptcy counts.

Selna notes OC still is in the red tier and holding steady with no indication of when they’ll get to orange. “When we get to that area, I’m going to set a trial date...I think we’re talking in January at the earliest...I think we have to realize that’s dependent on conditions.”

Regarding the deadline Selna wants to give Avenatti for reciprocal discovery production, Sagel said “in probably 99 percent of my cases” defendant is acting in good faith, but not so with Avenatti. “He already had a deadline, and he basically blew it off” with no explanation.

Selna says if Avenatti blows off the deadline, he’ll simply cut him off and not allow the info to be used at trial. This is mostly about Avenatti’s “advice of counsel” defense, which he recently told prosecutors about for the first time. Selna sets discovery deadline of Dec. 1.

Steward on advice of counsel defense: no case law supports a deadline for that. “Make it a date reasonably in advance of the trip date.” Selna says that’s what his tentative does.

Regarding the other bad acts, Sagel is “submitting” on the tentative, which is to allow basically everything prosecutors proposed admitting. Steward takes issue with the NFL settlement theft and says its basically its own litigation.

Steward says prosecutors want to call a couple ticket holders as witnesses, but there are defenses and other witnesses, which would make this a “trial within a trial.” Also says it’ll extend jury selection: “Perhaps those who haven’t heard of Avenatti have heard of the NFL.”

Selna asks how that differs from any standard bad acts evidence. Prosecutor Julian Andre “this is not complicated.” “I don’t think the fact that this involves football makes this prejudicial.” Selna sticks with tentative to allow it but emphasizes no trial within a trial.

Regarding prosecutors’ expert witnesses, Steward says ethics expert sets government up for reversal. “It’s highly prejudicial in that we have almost judge-like figure” telling jury what’s right. Points to judge in Avenatti’s @Nike extortion case excluding such witnesses.

“This is not an attorney grievance proceeding” where Avenatti is charged with violating duties and ethics as a lawyer, Steward says. Selna says isn’t disclosing settlement info to client an ethical issue?

“It adds a luster to that testimony that it doesn’t deserve,” Steward says of an ethics expert testifying.
“It’s not a luster, it’s the truth. The rules are what the rules are,” Selna replies.

There’s talk of dealing w/ expert issue through jury instructions. Selna gives Steward and prosecutors 30 days to submit something addressing that. Moving on to final motion, Avenatti’s bid for evidentiary hearing regarding the privilege review’s team of his attorney/client info.

There was an issue with this a while back in that prosecutors disclosed they’d recently uncovered attorney-client info that hadn’t been review in the first batch. Selna says they followed proper procedure in dealing with that, by contacting @USAO_LosAngeles’ privilege review team

Steward says prosecutors looked at the info several times, and privilege review team didn’t disclose to him until months later. “This appears to be a pervasive problem, and we’re entitled to answers.”

"The logic of it just makes an awful lot of sense," Steward w/ his trademark folksiness. Julian Andre responds: "The reality is very different than that."

Andre says he and Sagel diligently avoided any attorney-client privilege issues by properly enlisting @USAO_LosAngeles' review team. "All of these documents other than maybe 7 or 8 were viewed...on May 13," night before review team was contacted.

Sagel viewed about 55 documents in a half hour, Andre says, which is hardly enough time to do anything other than glance at them for potential privilege issues. "That's what we will continue to do, because we aren't interested in privileged materials."

Andre emphasizes the privilege issues and procedure are hardly new, though Avenatti's argument they were flawed is. "We've discussed this privilege review at every status conference we've had with this court."

One issue here is Avenatti taking issue with procedures related to searches of his bankrupted law firm Eagan Avenatti, which Andre says Avenatti doesn't have standing to do because a court-appointed receiver controlled the firm.

Firm control first was w/ receiver and is now w/ the bankruptcy trustee. Andre says Avenatti is now arguing in bankruptcy court that the trustee has a duty to indemnify him, while arguing here that the bankruptcy doesn't matter. (Or as Avenatti would say, "big nothing burger.")

.@USAO_LosAngeles' Patrick Fitzgerald of the privilege review team is briefing Judge Selna on his efforts. "We have locked out the prosecution team from the entire pool of documents...so the status quo is preserved while we conduct this further review."

Fitzgerald says just because they're treating documents as privileged doesn't mean they actually are. "The fact that we are pulling back documents doesn't actually mean that privileged documents went through." Says there's a broad policy to avoid privilege problems.

Avenatti pipes up from the phone line: "Your honor, can I have an opportunity to speak with..." Selna immediately cuts him off, "No, Mr. Avenatti, no." Steward clarifies Avenatti was asking to speak with him. Oh, Selna says, and takes a break to allow it.

So we're on a break now as Steward is out of the courtroom talking to Avenatti on his cell phone.

We're back. Steward says Avenatti reminded him they've addressed standing issue multiple times, and gives Selna the document numbers. "We are most concerned now, that we leaned just a moment ago" about 10k new documents. "We don't what they are, whether government reviewed them"

Selna suggests new hearing in a couple weeks to address just this privilege issue. Fitzgerald says the 10k "is the pool that we're looking through to see if there is anything that could raise an issue." "Once we've completed that review we will give that info to defense counsel."

Fitzgerald also says Steward and Avenatti have these same documents themselves, and can look and identify any that may raise issues.

Andre says Fitzgerald is basically double checking to make sure there are no issues here. He says Avenatti is arguing Eagan Avenatti essentially ceased to exist a while back, which means he has control of it, not the trustee. Andre says that contradicts his sworn statements.

Selna suggests another hearing on Nov. 16 at 9 a.m., with further briefs due Nov. 9. Prosecutors and Steward says they're fine with that. So Selna is reserving on the final motion regarding the privilege review.

Regarding the trial, Selna says he thinks they'll need a jury pool of about 150, with 16 seated (four alternates). @USAttyHanna's prosecutors say they can do the client fraud trial "comfortably in two weeks."

Selna says a jury screening questionnaire will ask about their knowledge of Avenatti. He wants to read the jury an agreed summary of the case instead of the full indictment, and he wants joint jury instructions no later than a week before trial.

Selna: "Any other thoughts or topics to take up today?"
"Not from the defense, your honors," Stewards says.
Sagel brings up their bid to jail Avenatti again, asks if they should keep arguing against Avenatti's extension every time it expires.

Selna says "the motion has not been lost from my radar" but he's got a lot to consider re: conditions in the jails and covid infections. And that's it! We're all finished. Thanks for following along.