Thread by @meghanncuniff

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.

One thing: I decided on my own accord to delete a tweet in this thread that’s a Q & A between Avenatti and Gardner about a relationship she had, and her true reason for moving out. Gardner is a private citizen and there’s no reason for that exchange to live on Internet forever.

Ok we’re back. Judge Selna just said the federal rule of evidence in question here is 615. “I find that reviewing tweets is not the equivalent of reviewing transcripts, and there is in fact no Rule 615 violation.”

Further, Judge Selna said, “There’s no indication that the witness, Ms. Gardner” reviewed the tweets at the request of prosecutors, or with prosecutors’ knowledge. “I’m not going to conduct an evidentiary hearing,” the judge said.

Selna cited case law (he called it Robinson, someone want to find it for me?) that he said makes it clear that the remedy for this stuff is cross-examination. He says Avenatti is free to question Gardner all he wants about my tweets, and specific ones he thinks are negative.

Judge Selna said Avenatti can ask Gardner “whether she regarded that as a negative comment in respect to you.” “It’s your choice if you want to go further and expose the substantive content of a particular tweet.”

Avenatti says Gardner “deliberately read the tweets of the reporter and she appears to have done so extensively.” He says he doesn’t believe the court has a full record of the tweets. "The amount of tweeting that has gone on by this particular reporter is extensive."

Selna: “if you wish to put a full record of the tweets before the court, you’re free to do that.” Avenatti asked for 30 minutes to gather my tweets, but Selna said no, because surely he must have had a good-faith basis, based on actual tweets, for bringing this up, right?

Avenatti asks how he’s supposed to cross Gardner about if he doesn’t have the tweets. Said something about hearing about them from counsel, as opposed to actually being able to review all of them. Selna: “You obviously had the benefit of the tweets to make the comments you did.”

“Sir, we’re going forward,” Selna says. The judge tells his clerk, “Bring the jury in, please.” Jury files in and Avenatti goes right to the tweets with Gardner. Asks if she was told she couldn't read them. No, she was just told she couldn't go the trial before she testified.

Avenatti asks Gardner if she's texted with anyone about what she read about the trial on Twitter. Yes, her mother. Now he's asking how she learned about my Twitter. "I looked up my name in a Twitter search." That's how she found the @latimes article she referenced, too.

Avenatti goes to the "you're an actor" line of questioning.
"Ms. Gardner, you're an actress, right?...And some of the parts that you've auditioned before have involved playing roles for people in trial, right?"
Gardner says she played lawyers, not witnesses.

Gardner discusses a stage name after Avenatti asked about it. "How many stage names have you had?" Avenatti asks. Judge Selna sustains Sagel's objection under 403.

Avenatti: "I just have one question Ms. Gardner, then I'm gong to sit down. During a break, did anyone from the government ask for you to look for any bank records?"
No, and Avenatti says nothing further.

But Sagel asks Judge Selna to instruct the jury that government is not allowed to talk to witnesses who are testifying. Selna tells the jury as much. "That applies to all parties and all witnesses," Selna said.

Given that, Avenatti wants to try again on his last question. Sagel says he's already finished, but Selna lets him.
"Ms. Gardner, did you or anyone on your behalf try to locate any bank records?""
Yes, she says she called bank to request records for her own purposes.

AUSA Brett Sagel is up for redirect now, and he goes over the math Avenatti had Gardner do, while confirming she never saw her settlement agreement and didn't know these numbers prior.

Sagel: "Did the defendant ever provide you with the costs and expenses on your case?"
"No."
Sagel: "Who did you expect you to provide you with the costs and accounting if they were going to be deducted from your settlement?"
"My attorney."
Sagel: "The defendant?"
"Yes."

Gardner says she was told at mediation about the $250k payment that was due in November 2020, long after the initial payment Avenatti got of $2.75 million. Sagel now trying to refute what Avenatti said in cross about Gardner not actually asking for the settlement agreement.

"Do you have any doubt that you asked defendant for it over and over again?" Sagel asks.
"No," Gardner answers.
"Do you remember any of the excuses" Avenatti gave for not providing it?
Gardner says he always told her he could get it to her, but one just never seemed to be around.

Sagel asks about Avenatti talking to Gardner about violating the no contract order with Whiteside. Gardner says it hurt, but it also "validated that there was communication" between Avenatti and Whiteside, which she thought was Avenatti trying to get Whiteside's payments.

Sagel turns to the checks Avenatti asked Gardner about in cross. Did he ever tell her he was the one making those deposits? No.
Sagel addresses Avenatti's questions about the lack of bank records.

"Would you need to view your bank records to know if your portion of a $2.75 million settlement was deposited into it?" Sagel asks.
"No," Gardner answers.
A couple more questions, now Avenatti is back at the lectern for re-cross.

Avenatti displays settlement with Gardner's signature.
"I didn't sign your name, did I?" Avenatti asks.
"I didn't buy a jet," Gardner answers, eliciting the loudest laughter we've heard in court all trial.
Selna strikes the answer and warns Gardner.
"I apologize," Gardner says.

For those curious, here's a photo of the jet, courtesy @USAO_LosAngeles. (This photo is not part of the trial.)

Avenatti asks if it's true she told the government she requested a copy of the settlement from other firm lawyers, too. Yes, she did. Isn't it true they told her "it was in the Long Beach office that was shut down."
"Yes," she answers.

Avenatti says Filippo Marchino told her that, and he still represents her as an attorney, right?
"In other matters, yes."
Avenatti asks if she believed the other work he was doing for her outside the Whiteside matter "was for free."
Yes, she answers.

Avenatti ends after asking more about bank records, or the lack thereof. Gardner is now gathering her things and stepping off the witness stand. Next witness is Filippo Marchino, who we've already heard a lot about today. He just sat down at the witness stand.

Some background reading for you all as we wait for the testimony to really get going. Marchino is currently representing Gardner in a lawsuit over the ownership of the jet. Google Drive link to cross claim here: drive.google.com/file/d/1szhf_D…

Marchino ID's Avenatti. "He just stood up, and he's wearing a suit and tie that's dark blue." Marchino currently runs the X-Law Group. Prior, he was with Eagan Avenatti. X-Law also worked closely with Avenatti through 2018 and 2019.

We haven't heard testimony about this, but there was a really bizarre LA eviction case involving the X-Law Group office also being used by Avenatti after Eagan Avenatti got evicted from its Newport Beach office. (Reporter memories!)

AUSA Alex Wyman is questioning Marchino. We heard a lot of background about Avenatti's partnership with Marchino, and a partnership between X-Law and Eagan Avenatti that involved sharing lawyers. Wyman asks Marchino if the feds raided his office. Yes, on March 25, 2019.

Marchino never worked with Geoff Johnson or Greg Barela. But he did work w/ Alexis Gardner and Michelle Phan.
"OK, I want to talk about those two matters. Let's start with Ms. Gardner," Wyman says.
Was Gardner case taken on contingency?
Marchino says yes, as far as I know.

Marchino expected to receive half of Gardner's contingency fee. He met her when Avenatti first took her case in late 2016. Wyman asks if his investigation for Gardner involved international travel, and Marchino says yes, he flew to Italy.

Wyman asking Marchino about the X-Law Group accruing its own expenses, obviously trying to refute Avenatti's "but the costs and fees!" defense. Now we're on a 15-minute break.

Thread broke, continues here:

https://twitter.com/meghanncuniff/status/1422679540317384705

We're back, with AUSA Alex Wyman continuing his direct exam of Filippo Marchino, Avenatti's old law partner. Wyman asks if Avenatti talked of buying a jet. Yes, he did. (The jet purchase involved Avenatti sending the $2.5 million from Gardner's settlement to X-Law.)

Marchino said he learned from Avenatti that Gardner's case had settled. He was in Italy as part of the investigation for the mediation. Marchino heard it was about $3 million, but he didn't hear payment details.

Avenatti told him it was as structured settlement that involved a lump sum for attorney fees that would be paid soon. Prior to March 2019 (Avenatti's arrest and everyone gets raided), he'd never seen an actual copy of the settlement. (He doesn't believe he asked for one.)

This is the first time we've heard from AUSA Alex Wyman in a couple days after AUSA Brett Sagel handled the last few witnesses. For anyone planning end-of-trial courtroom awards, you'd be remiss not to give Wyman "best hair." Definitely no history of baldness in his family.

Wyman is going over bank records with Marchino, and @Chase is getting another prominent mention. (Maybe their marketing team can do something with this? "blank of blank Avenatti witnesses prefer Chase...") We're seeing the $2.5 million transfer.

Marchino confirms he made the wire transfer. Wyman asks what it was for.
"I understood it to be for the payment of a Honda jet," Marchino answers.
Wyman displays an email exchange between Marchino and Avenatti from January 2017.

Marchino reads aloud. It's the bank information Avenatti sent Marchino regarding the $2.5 million wire transfer. (This is establishing through evidence what Marchino says about doing this transfer at Avenatti's instruction.)

Marchino said he thought he the money was from another client, William Parrish, who was going in n the jet with Avenatti.
"And all of this understanding that you just described, where did that come from?" Wyman asked.
"From Mr. Avenatti," Marchino answers.

Another email. Jan. 23, 2017. The subject is "Gardner." This is Marchino emailing Eagan Avenatti paralegal Judy Regnier list of his expenses for the case as an attached PDF. One bill is for Gardner's hotel. "Is that a cost that you personally" fronted?
"Yes, the X-Law group did."

Wyman is going over more expenses such as @AirBnB costs, and the big point is the expenses Marchino paid are some of the same expenses that Avenatti went over in his cross of Gardner and tried to act like he paid himself.

"Did the defendant ever pay you back for those expenses?" Wyman asks.
"No," Marchino says, and clarifies that they were to be paid by Avenatti's firm, not him personally.
Wyman moves onto YouTube influencer and makeup artist Michelle Phan, and her business partner Long Tram.

Regarding that jet photo, just so everyone knows, the DOJ sent those photos out back in spring 2019. (I'm posting the other one now for good measure.) They're not evidence in the trial, and they're not going to be. And if they were, they'd still be public.

We're seeing the Feb. 9, 2017 retainer agreement Phan and Tram (two last names that when said in the same sentence aren't kind to live tweeting) signed with Eagan Avenatti. Marchino is aware of no other fee agreements.

Wyman has him read a paragraph from agreement that indicates Marchino's fees would be paid by Avenatti's firm. Now we're hearing about the final agreements in Michelle Phan's legal issues, which involved buying back a company. A lot of money due from that.

Marchino learned the first payment had been made because Long Tram texted hm a photo of a car he bought and thanked Marchino for introducing him to Avenatti. Marchino says Avenatti never told him the firm had received the attorney fees.

"Did you ever receive your fees for your portion of your work on this matter?" Wyman asks.
"I don't believe so," Marchino answers.

Marchino is basically a go-between for Long Tram and Avenatti. Tram told him in March/April 2018 their deposits were sent to Avenatti, but weeks later they still hadn't gotten their money. Tram asks for Marchino's help.

(This is of course when Avenatti was busy getting famous for the @StormyDaniels saga.)
Wyman: "Did you know that by this time the defendant had spent almost $4 million of Michelle Phan's money?"
Marchino: "No, I did not know."

Wyman: "If you had know that, would you have sent this message to Mr. Tram telling him not to worry?"
Marchino: "Absolutely not."
Now we're getting into the two transactions we heard about in Judy Regnier's testimony. See tweet from her testimony:

https://twitter.com/meghanncuniff/status/1420442429920997377

Marchino is the go-between for Tram and Avenatti, so he's the one giving the tracking numbers for the two transactions to Tram and assuring him the money is on its way. Marchino said Avenatti told him he was trying to find the "missing" $4 million wire transfer.

And we're stopping here for the day, thankfully. Judge Selna gives the usual warning to the jury that they're not to discuss the case or do any research, and they file out.

Judge Selna says we're back at 8:15 a.m. On agenda is motion to quash Avenatti's subpoena for Geoff Johnson's current lawyer, Drew Harbur at @Callahan_Blaine. (Avenatti filed his opposition today, which I'll post later.) Harbur's motion is here:

https://twitter.com/meghanncuniff/status/1421138152803037185

And that's it for the day. Thanks for following along, and check back here about 8 a.m. tomorrow for another thread.

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