Thread by @meghanncuniff

I’m here at the Orange County federal courthouse in Santa Ana, California, for the eighth day of testimony in Michael Avenatti’s wire fraud trial. I’ll be posting updates on this thread so stay tuned. ⚖️🧵⚖️

Judge Selna just took the bench and said, "We've got a number of things to take up." Prosecutors want a week to respond to Avenatti's mistrial motion (posted below). Avenatti says that's excessive, and Selna gives them until Thursday.

https://twitter.com/meghanncuniff/status/1422224187402309640

Regarding the motion reconsider the quashed subpoenas, Selna is withdrawing his ruling to quash and is validating the subpoenas for the California-based federal investigators. "

https://twitter.com/meghanncuniff/status/1421563320729948165

However, regarding the two New York-based investigators listed, Selna tells Avenatti to find out if federal agents other than the two listed were present during meetings with Avenatti, and where they're based.

Regarding Avenatti's filing challenging restrictions on his cross-examinations, Judge Selna says it failed to recognize the fact that the right to cross-examine is not unlimited. He says he stands by the restrictions and sustained objections.

Regarding the Jencks Act fights about witness statement disclosure pre-testimony, prosecutors submitted stuff for Selna to review in-camera (privately), and he said he has questions about some of them that we'll address later.

Avenatti complains about new documents prosecutors disclosed for their re-direct plans for Gardner, and Judge Selna is really pushing back on idea that it’s improper. He asks Avenatti if he realizes cross can bring new relevancy to documents for re-direct. “Can that never occur?”

Avenatti wants to exclude any testimony from his ex-law partner Filippo Marchino, expected to take the stand later today, about the $2.5 million transfer used to buy the jet. Selna says it's a Rule 29 issue that should be considered at end of prosecution's case.

"You're not going to give me a reason why you should prevail on a point and I should exclude evidence to that point," Selna tells Avenatti. Avenatti says it's a Rule 403 evidence issue, so Selna says OK, "your 403 objection is noted and overruled."

This was after hearing from AUSA Alex Wyman about the Marchino testimony, and with Wyman unsurprisingly saying that Marchino transferring the $2.5 million to buy the jet is pretty important to their case. So it sounds like we'll be hearing about that in testimony later today.

Now Avenatti is taking issue with the fact that the federal agents who now have to testify have been in court the entire trial. He wants a mistrial or them excluded. "It is a principal defense of mine, relating to the sloppiness of this investigation," Avenatti says.

Judge Selna agrees they can't be in here for testimony now that the subpoenas have been reinstated. AUSA Brett Sagel raised issue about the relevance of their testimony, and Selna says he wants to do an in-camera review of Avenatti's plans before they testify. Avenatti says OK.

And now we're waiting for the jury. Due in about five minutes. Remember, when we last left off on Friday, Avenatti was cross-examining his ex-client Alexis Gardner after a direct exam one observer described to me as "out-of-the-movies devastating" for Avenatti.

Read my @lawdotcom article on AUSA Brett Sagel's direct examination of Gardner here. "'I Thought He Was Working for Me All the Time:' Avenatti's Ex-Client Recounts Plight Over Missed Settlement Money" bit.ly/3rO4uw2

On the COVID Delta variant front, Judge Selna told us this morning and he just told the jury now that the dismissed juror with the sick roommate called the court to report negative COVID tests. So that's a relief. Now we're getting into testimony.

Avenatti asks Gardner if she spoke w/ her current attorney about her testimony in this case. Avenatti asks if she understands an issue in this case involves her current counsel, and she says she doesn't see how that's relevant. He asks if she's talked to him about her settlement

Avenatti asks if anyone in the last two weeks has told Gardner what's been testified to in this trial. She answers no. "Have you read anything about this case in the last two weeks?"
Gardner says yes, confirms she's read news reports.

Avenatti asks if she's following the trial. "Yes and no. It's a bit stressful, so I try to stay away from it," Gardner answers. Avenatti asks which ones she's read.
"LA Times as well as social media," Gardner answers.
"Twitter?" Avenatti asks.
"Yes," Gardner answers.

Selna overrules Sagel's objection under Rule 403.
"You've been following her live tweets?" Avenatti asks.
"From time to time," Gardner answers.
"You've been following what she's been tweeting about the case before you testified?" Avenatti asks.
"Yes," Gardner answers.

Judge Selna denies Avenatti's sidebar request.
"When you were following Ms. Cuniff's tweets, you were aware that she was tweeting about what other witnesses were testifying to, correct?" Avenatti asks.
"Yes," Gardner answers.

"And you read some of that, correct?" Avenatti asks.
"Yes," Gardner answers.
"Did anyone tell you you couldn't do that before you testified in this case?" Avenatti asks.
She doesn't recall anyone telling her that.

"You read the tweets because you wanted to find out what was going on in the case, right?" Avenatti asks.
"I read the tweets because I was scared," Gardner answers.

"You read the tweets because you wanted to find out what's going on in the case, right? You wanted to be informed?" Avenatti asks.
"I wanted to find out what I was walking into," Gardner answers.

"You wanted to be informed?" Avenatti asks.
"I just don't particularly settle on the term informed, it's not to ..." Gardner begins.
"Well let me ask this question - You wanted to learn what was going on in the case, so you read the tweets?"
Yes.

Avenatti finally moves on from Twitter to the settlement money he's accused of stealing from Gardner. A lot of math talk, and he asks Gardner pointedly, "Please tell the jury the exact amount of money you’re owed." A long pause.

She spends a lot of time calculating up on the stand before telling Avenatti: “I still don’t think my math serves me, but I’ll break it down for you."
Avenatti tells her: "Why don't we walk through your calculation if we could, and if I get anything wrong, please correct me?"

Gardner finally relents: “In all honesty, I guess I have no clue what I was supposed to get, outside all I was supposed to pay you was the 33 percent.”
"You're certain of that, yes or no?" Avenatti asks.
"Yes, because you told me the fees were included."

Judge Selna agreed with Avenatti to strike everything Gardner said after 'yes' as non-responsive.

Avenatti just said, "Ms. Gardner, you understand a man's liberty's at stake?"
"Yes, I do," Gardner asks. She said *something* after that like, "You understand my life's at stake?" Avenatti gets Selna to strike the comment.

This is what we're at with Avenatti's math lesson with Gardner.
"Did you add the $194,000 back in?" Avenatti asks.
"No, I just got confused and I stopped," Gardner answers.
"Ms. Gardner, as you sit there today you claim you are owed 2,556,000?" Avenatti asks.

Gardner tells Avenatti, "I struggle with numbers. It gives me anxiety. I apologize."
Avenatti: "Don't apologize. I think we can get you a calculator. Do you want a calculator?" She does, so Avenatti gets Selna's permission to approach. More calculations going on.

There's a lot of silence right now, as Gardner calculates up on the witness stand at Avenatti's request. (Good thing one of the sleepier courtroom security officers isn't in here right now, because he'd be out like a light.)

"OK," Gardner says. Avenatti was apparently having her write something out regarding the calculations, because he just told her "Can you please sign and date at the bottom for me?" Now he's moving the paper into evidence.

Avenatti has Gardner's handwritten calculations displayed on the overhead and is pointing out that neither figure is equal to $2.5 million. "Now let's talk about your bottom calculation," he says.

Gardner is going over the money she got. Apparently the total figure is $192,000, taking into account 12 months of $16,000 payments, sometimes a few months at a time. She acknowledges that doens't include fees and expenses for Avenatti's firm.

Avenatti moves onto what Gardner says she's owed. Begins his question, "Your certain in this serious federal criminal trial that the number is..." Selna sustains Sagel's argumentative objection. Avenatti tries again, asks if she's confident $1.75 million is what she's owed. Yes.

Avenatti asks how many times she met with government agents about this case. She says twice.
"Did they ever ask you to perform a calculation like this?" Avenatti asks.
"No," Gardner answers.

Avenatti asks if the figure $250,000 appears anywhere in her calculations. No, it doesn't. This is Avenatti referring to the final payment in the original $3 million settlement. It wasn't due until November 2020.
"Did you get the money? Yes or no?" Avenatti asks.

"My settlement was restructured to help me, but in full, no, on Nov. 1, 2020, I did not receive a check for $250,000," Gardner answers.
Selna agrees to strike first part of answer.

Avenatti asks if prosecutors asked her about the additional payments "that you didn't give me credit for on your calculation sheet." "I don't recall," she says.

This is Avenatti banking on his "close is not good enough" standard that he pushed in his opening statemment. Read my @lawdotcom story on that here: bit.ly/2UyuLTc

Avenatti says to Gardner: "Ms. Gardner, I'm not trying to trick you..." Gardner laughed and muttered, "Yes, you are." But I don't think Avenatti heard it because he didn't ask Judge Selna to strike the comment.

One thing that's really noticeable to me is how Gardner seems to have gained strength on the stand through her testimony. Her early direct testimony was emotional. This is a tough personal issue for her, and federal court is an intimidating place.

But she really seems to have found her groove up there and is not at all rattled by Avenatti. Just calm answers, and a few snappy retorts here and there.

Avenatti brings up a copy of a $51,000 cashier's check is law firm Eagan Avenatti sent in January 2017 to secure Gardner an apartment. Avenatti asks if she understands you have to have money in an account to cash a check. She laughs and says, "Yes. I do."

Avenatti asks Gardner that, isn't it true at the time of that cashier's check, her ex Hassan Whiteside had not paid any money through the settlement agreement. (The check was a few days before the money came in.) Yes, she answers.

Oh. Gardner just started sobbing on the stand. Judge Selna immediately called the morning 15-minute break. This happened as Avenatti displayed the settlement agreement and was asking her about it. Jury filling out as she sobs and gasps for breath. This is very emotional and hard.

Gardner is still audibly crying. Her lawyer is up with her, and so is one of her friends who's been in the audience supporting her. This comes after like I said, a lot of displays of confidence from her in her testimony. It all just reiterates how emotionally hard this is.

Gardner and her lawyer and friend have now left the courtroom and are in a side room in the back chambers area. A lot of awkward standing around before they left. Now I guess we're all just on a break?

"Your honor can I raise an issue outside the presence of the jury?' Avenatti asks
Very quickly," Judge Selna tells him.
Standby counsel Dean Steward urges him to wait, and Aveantti agrees. But a couple seconds later, Avenatti asks for additional voir dire.

He wanted based on what just happened, but he didn't get into specifics, and Judge Selna barely even wasted a breath denying it. Just an immediate denial. Selna tells Avenatti, "I believe the record will indicate she's never been in a courtroom other than to appear to testify."

"Is that inaccurate, Mr. Avenatti?" Selna asks.
"I don't believe that's inaccurate, your honor. What your honor just said," Avenatti answers.
"OK," the judge says. Now the jury is in and Gardner is back on the stand. She's again looks calm, collected.

Avenatti asks Gardner about funds "being delivered' to her residence that she said were a "stipend" from him. She told investigators this during a July 1, 2021, interview.
"Are those monies reflected in your calculation, yes or no?" Avenatti asks.
"No," Gardner answers.

Avenatti is asking about the confidentiality of the settlement agreement, and how it was absolutely crucial, especially regarding Gardner not being able to tell her mother about the deal.

He's making a connection between confidentiality agreement and split payments of $2.75 million and $250k.
Avenatti: "And you understood did you not that the $250,000 was being delayed...in order to make sure you compiled with the confidentiality term correct?"
"I don't recall.."

Now Avenatti asks about Gardner reaching out to Whiteside in violation of the settlement agreement. "And what happened next?"
"My attorney called me very upset and said I'm not supposed to do that," Gardner says. (By attorney she means Avenatti.)

"And I told you at the time that Mr. Whiteside's counsel had reached out to me and they were furious, didn't I?" Avenatti asks, referring to Joel Weiner of @KattenLaw, whose testimony you can read about in my latest @lawdotcom article: bit.ly/3rO4uw2

Avenatti says she tried to contact Whiteside after Weiner complained about the initial contact. Avenatti also says Gardner proposed receiving monthly payments as part of the settlement deal. Gardner acknowledges this. Avenatti goes back to her contacting Whiteside.

Asks if he texted her and told her to contact him immediately, that it was urgent. Yes, many times, Gardner says. Now he's asking about a text AUSA Brett Sagel asked her about in direct on Friday. Did she talk about it with feds before she testified? Yes.

"Did they ever ask you what was hidden behind the black boxes?" (This text is displayed for jurors. I can't see it well and I have absolutely *terrible* eyesight, but there's a chunk of blacked out.)

The text was linked in direct testimony to the reason why Gardner moved - she didn't have rent money. Avenatti asks her something like, but what you on Friday said wasn't the whole truth and nothing but the truth.

"It was truthful. I was in the situation because of my financial situation."
Judge Selna agrees to strike everting after 'truthful.'
Avenatti names someone (last names Isaacs) and asks Gardner who he is. "Mr Isaacs was your boyfriend as of this time was he?"
"No," Gardner answers

Avenatti: "Mr. Isaacs is someone who you had had an intimate relationship with in close proximity to sending this text message. Isn't that true, yes or no?"
Gardner: "I think I'm a little stricken by the term 'relationship.'"

"What's the relevance of this?" Judge Selna asks.
Sagel asks that they discuss this in sidebar, and Avenatti agrees. So they all went back to chambers to talk.

Everyone came back into court and Avenatti asked if Judge Selna would like to take a break. Judge asked if HE'D like to take a break. Avenatti says yes, and now we're on a break.

After jury leaves, Avenatti says it's because he heard Gardner became emotional during the sidebar, and he wants to give her time to recover. So now we're on a break.

OK, we're back. Avenatti goes back to the redacted text and asks Gardner this:
"Ms. Gardner, isn't it true that you had a sexual relationship with Mr. Isaacs, and that's the reason you were moving out?"
Gardner answers, "Non-consensually, yes."

Avenatti moves into which texts she gave investigators and which she didn't, then asks about the screenshot we saw during her direct exam, the one of her negative bank balance that she texted Avenatti.

Avenatti has Gardner confirm she banked with @Chase and had mobile access.
"Did you regularly check the activity in your account, yes or no?" Avenatti asks.
"Yes," Gardner answers.
"And that would be done via the phone and via the website?" Avenatti asks.
"Yes," Gardner answers.

Avenatti asks if federal investigators asked Gardner for bank records, deposit records, monthly statements. "Did they ever ask you to sign a consent that would allow them to get your bank records from @Chase?"
"I don't remember," Gardner answers.

Avenatti had Gardner look through old checks. He focuses on one. "Do you dispute you got this money?"
"I'm not confident with the date," Gardner answers.
"Do you dispute this payment was made into your account?"
"I cannot identify any of my account information on this check"

Strike answer as nonresponsive, Avenatti asks again if she disputes the money went into her account. Gardner says yes, she disputes that.

Another check for $16,000. Gardner says she's not familiar with the dates so isn't confirming she received it.
Avenatti: "In order to be sure, you would have to look at your banking records, right?"
Gardner: "Yes."

"And for me to be sure, I would have to look at your banking records, right?"
"Yes."
"And for the government to be sure, they would have to look at your banking records?"
"Yes."
"And for this jury to be sure, they, too, would have to see your banking records, right?"
"Yes."

Avenatti: "And in over two years, nobody has ever asked you for your banking records, have they?"
Gardner: "Not to my recollection."

The jury just filed out for the 90-minute lunch break. AUSA Brett Sagel, protecting his witness (Gardner), asks Judge Selna to make sure the sidebar they had in chambers a bit ago is sealed, and the judge agrees.

Avenatti is again taking issue with Gardner reading tweets from me before her testimony.
“Ms. Cuniff has been live tweeting questions and answers extensively during this trial, your honor,” Avenatti said.
Judge Selna says: “The tweets will speak for themselves.”

Avenatti tells Selna my tweets are worse than reading a trial transcript because “they contain Ms. Cuniff’s gloss or spin on the testimony” which he says has been “less than complimentary” and “about 70 percent accurate at best.” (He doesn't specify errors and he never has.)

And Avenatti says he wants Gardner questioned outside the presence of the jury, “relating to what exactly she reviewed.” Selna says he’s “free to do that during your examination.” Judge then tells prosecutors to weigh in on this after lunch.

Judge Selna doesn't mention the fact that he once told me he believes I bring "quality journalism to the courthouse" because I "did the research, you were accurate in what you wrote, and you called them as you saw them." Maybe that'll come up later. 😉
Back at 1:30 p.m.