Thread by @meghanncuniff

It’s Wednesday at the Orange County federal courthouse in Santa Ana, California, and I’m here for the 13th day of testimony in Michael Avenatti’s wire fraud trial. I’ll be posting updates from the courtroom on this thread so stay tuned. ⚖️🧵⚖️

Avenatti is in court with his standby counsel, Dean Steward and Courtney Cummings, and prosecutors Brett Sagel and Alex Wyman are here with the lead investigator, Ramoun Karlous. Judge Selna just took the bench.

Selna says juror #4 "called in this morning to indicate she and her family had gone to a pool party with her next-door neighbors on Sunday." The children aren't well today, and "one or more" is going in for a covid test. "What would you like to do?" Selna asks.

Avenatti says "we need to adjourn the trial" temporarily to see if the juror has covid. "Failure to do that, I think, puts a lot of individuals at risk." He lists staff, jurors, Judge Selna.
"I'm well protected up here," Selna says behind plexiglass and a face shield.

Avenatti says juror was here yesterday "and potentially infected other jurors."
"At a minimum, we need to adjourn for a day until we get more information," Avenatti says.
AUSA Brett Sagel: "Obviously we'll defer to the court on this" but notes, "we do have three alternates."

So Judge Selna is having his clerk check on the timing of the covid tests for the juror and the neighbors who are sick. (The jurors right now has no symptoms.)

Meanwhile, Avenatti this morning filed opposition to prosecutors' motion to quash his subpoena for the 3rd New York federal agent. bit.ly/3savPJm (Selna yesterday authorized subpoena for one other agent.) Avenatti is going to make an "offer of proof" in-camera to Selna.

Prosecutors this morning filed brief re: Avenatti's plans to call government agents as witnesses, calling for him "to make a threshold showing that there is admissible evidence" bit.ly/3lQr1Yp Selna says he'll review Avenatti's offer of proof before deciding this issue.

So we're all waiting for the clerk to get more information about the covid tests for the juror's neighbors. There's no specific time when we're to be back, but the clerk is going to call the attorneys.

Remember, a trial down the hall is dealing with covid, too. A vaccinated juror tested positive, but Judge Staton is reconvening today with that juror. (They already lost the two alternates because two jurors were sleeping in court. Here's the minute order in that trial.)

Alright, we're all filing back in the courtroom after the clerk said we're ready to reconvene. Currently awaiting Judge Selna's return to the bench.

Judge is on the bench and says, "The situation is still somewhat confused." The neighbor who told the juror "was passing along information form another neighbor." That other neighbor is getting tested at 10 or 11 today, so we're going to take the day off.

Selna: "I appreciate the inconvenience to the government and the witnesses, but I'd rather be safe than sorry."
"If the situation isn't clarified by the first thing tomorrow, I'll dismiss the juror and we'll proceed," the judge continues.

Avenatti asks Selna if he's taking comment. Selna says he's happy to hear from him. Avenatti says "let's see what information develops."
Sagel says, "We've made our position known. I'm fine with that."
Now they're talking about the logistics of travel for Avenatti's witnesses.

Standby counsel Dean Steward says the CJA (alternative public defense panel he represents Avenatti through) won't pay for travel for government witnesses; it's the government's responsibility. Not the U.S. Attorney's Office, but the agency where witness works.

So we're reconvening tomorrow at 8:30 a.m., but first Judge Selna is bringing the jury in to tell them what's going on. We're awaiting that right now.

Selna explains a juror may have been exposed to covid. "For that reason, we're going to adjourn now for the day...I'd rather be safe than sorry and know the answer to this question before we spend another day together."

"The day's yours, ladies and gentlemen," Selna tell the jurors, then gives regular warning not to discuss case or do outside research. And with that, we're done for the day.

I’m writing an article for @lawdotcom on this covid situation, so I’m down the hall in the other trial trying to figure out what is going on. It appears the infected juror was dismissed and they’re proceeding with only 11. Stay tuned for my full article later today.

Ok to clarify after doing some reporting -only 1 juror was dismissed for sleeping, so they still had 1 alternate. So they dismissed infected juror and they have 12 to deliberate. So info floating around Selna’s court about 2 sleeping jurors being dismissed is wrong, it was only 1

Well it's a good thing I didn't leave the courthouse and continue on with my life. Word is everyone's coming back at 11:50 a.m. for a short hearing. Something about a witness. I'll be here in the hallway for them like some kind of courthouse greeter.

Alright, just I was wrapping up a rehash of the public fight Central District judges (one in particular) waged over the pandemic-era jury trial ban for my @lawdotcom article today (stay tuned), the attorneys filed back into Selna's court. We're all in here now awaiting the judge.

Selna is on the bench. "I want you to explain this issue to me," the judge tells prosecutors. AUSA Alex Wyman stands up. This is about the IRS agent who's to be a summary witness. He was going to testify today, and he's on vacation tomorrow.

Wyman wants to use another agent as the summary witness, who will review info today and testify tomorrow "so we don't have to make Agent Bellis miss his prepaid vacation." Avenatti is objecting. "They can't just bring in somebody who did not prepare the report."

Avenatti says case law establishes "You've got to be able to actually cross-examine the individual who actually prepared" the report. "This isn't about just being difficult," Avenatti tells Selna. The judge asks what would happen if original report writer died.

Avenatti says in an extreme situation like that, the reporter would need to be re-prepared. "I don't think they can just cross check the work and say yes, it's responsible." Says he wants prosecutors to say on record who prepared this summary exhibit the agent is to testify to.

Wyman says it's not true that person who testifies has to have made the chart. The agent they want to swap is in the USA office right now reviewing the information, and he can be examined. To say only the report writer can testify "is unfounded in law, and it's unreasonable."

Selna is saying the agent can testify if he goes through the same review steps as original agent, which he is doing.
Avenatti is objecting, but Selna tells him: "Sir, you're missing the point. You're not listening to me. That's troublesome."

Selna again says as long as the agent goes through the same steps as the original agent, "it's irrelevant at this point whether Mr. Bellis or somebody else prepared the chart."
"Cross-examination is your weapon to attack the admissibility of it," the judge says.

Selna says he'll be listening during Avenatti's cross for admissibility points "and, if appropriate, a motion to strike." Says the issue is over.
Next topic - the law firm employee Avenatti subpoenaed who tested positive for COVID last week.

Avenatti says she must be in-person, but Selna says he'll have to do video testimony if she has positive COVID test. Apparently we're awaiting another test for her, so no final decision yet.
"It's always helpful to have all the facts before one makes a decision," the judge says.

With that, we're all out of here and court reconvenes tomorrow at 8:30 a.m.

Btw, it sounds like this "report" isn't so much a report but a chart of the wire transfers underlying Avenatti's wire fraud charges, which appears in the indictment. (And I included in my @lawdotcom article the other day.)

Avenatti just filed a doc with the two cases he cited to Selna regarding the swapping out of government summary witnesses. Good to see my paternal grandparents' home state of Montana well represented. #bigskycountry

Avenatti just filed something asking Judge Selna to strike Alexis Gardner's testimony, and it's all about my tweets. "A true and correct copy of Ms. Cuniff’s twitter profile home page is attached hereto as Exhibit A." Google Drive: bit.ly/3jOWJT4

I of course stand by all my work over the years. We addressed Avenatti's original complaints about my Twitter in this Q & A you can read here: law.com/2021/08/04/wha…

Btw, hoping to get a copy of this --> "...a video of the trial-related tweets by reporter Meghann Cuniff before Ms. Gardner testified is being lodged contemporaneously with the Court (and provided to the government) as Exhibit B." Will share here if I do! bit.ly/3jOWJT4

Avenatti just filed a brief regarding testimony of his ex-employee who tested positive for covid. He's insisting she testify in person, and he's calling for an adjournment if necessary to allow for it. (See earlier tweets in this thread for judge's take) bit.ly/3AEHCCH

New filing from prosecutors re: jury instructions that continues issue of true wire fraud defenses. "Defendant’s clear implication..(is) he is not guilty of wire fraud if the government cannot establish how much the victims lost. That is not the law." bit.ly/3CGfoJu

My @lawdotcom article from Monday touches on this. bit.ly/3CA9VEa

@threadreaderapp Unroll, please. Thank you! 🚀🚀🚀

Just when I was thinking it was over for the night, here's Avenatti's latest filing, a motion for mistrial based on the fact that federal agents he's calling as witnesses heard early days of testimony. bit.ly/3jMt9xJ

It's unlikely Judge Selna grants this mistrial motion. Again, the biggest outside-the-jury issue right now is that possible instruction regarding wire fraud defenses. Avenatti hasn't yet filed the do-over brief Selna allowed him after he didn't answer the question in his first.

bit.ly/3CA9VEa

@threadreaderapp Unroll, please. Thank you! 🚀