Thread by @meghanncuniff

It’s the 16th day of testimony in Michael Avenatti’s wire fraud trial, and @StormyDaniels’ lawyer Clark Brewster is joining us in court today. Follow this thread for live updates from the courthouse in Santa Ana, California. 🧵

First up is @CNN's motion to quash Avenatti's subpoena of producer @JRoseCNN. @DWTLaw's Kelli Sager is up now before Judge Selna.

She says they have broadcast information about Avenatti's appearances they can freely share. Avenatti says his paralegals made clear to Rose they were going to serve a subpoena and had a "very pleasant conversation." She agreed to be served via email, Avenatti says.

Avenatti hasn't paid the subpoena fee because he didn't think he hd to because of public defense status, but "If we have to reserve her and tender the fee we're happy to do that, but that should not be a reason to quash the subpoena."

Selna asking if he's exhausted all other efforts to prove he was in New York. Avenatti says government won't agree to stipulation that states he was there on certain dates. "This is unfortunately the only way i can figure out how to do that."

"I don't think there's any question I was in New York at that time and couldn't have written that email," Avenatti says. Selna says can't he use CDs and accompanying declaration about their authenticity? Avenatti told @CNN he wanted a live witness to put it before the jury.

"What am I supposed to do, just drop these DVDs in evidence then argue it in closing?" Avenatti says.
He says he has no interest in inconveniencing Ms. Rose or any other witness in this case. "None whatsoever."

Avenatti says his ex-paralegal Regnier "lied to four government agents" and he's going "to show the government knew it before they called her to the stand."
"This is not some minor point, your honor."

He said he feels for Rose, and "I don't want to inconvenience anyone, but I'm entitled to put on my case." CNN's lawyer Kelli Sager responds saying Avenatti didn't tell Rose the details of the subpoena and that involved her flying across the country in four days. "

"Mr. Avenatti may want theater, but that doesn't justify" the subpoena, Sager said. Judge Selna agrees to quash the subpoena. Says Rose made clear in her declaration she has no independent knowledge of this, and no one has challenged her credibility on that.

Judge says "there clearly are alternative sources to prove the point that Mr. Avenatti wants to prove," but he's not exhausted those, in fact, "he's chosen to ignore" them. Selna moves onto the motion to quash Avenatti's subpoena of Drum's coworker Evan Carter.

Avenatti protested, saying he wants to take it up at lunch, but Selna said no way, we're doing it now. Carter's lawyer is here. "He's incorrect that Ms. Carter attempted to dodge service," Carter's lawyer tells the judge of Avenatti.

Carter's lawyer says her communications about the case are basically limited to scheduling. "She is nothing more than a mid-level associate who assisted Mr. Drum in his preparation for testimony."

"There's a family issue is there not?" Selna asks.
"Ms Carter does not have family issues that I'm aware of," her lawyer says.
Avenatti wants to file his reply to the motion to quash by tomorrow at 9. Selna says he'll notify Carter's lawyer if further argument is necessary.

Next up: Avenatti's motion to strike Gardner's testimony because she read my tweets. Selna says he's reviewed the video of my tweets. "I'd be happy to hear you on that motion at that time, Mr. Avenatti."
"Your honor, I'm not going to repeat what's in the papers," Avenatti says.

Avenatti notes that the judge said last week we don't know which tweets Gardner read. Avenatti says that's because he denied Avenatti's request to question her outside the jury. His only option was to put the social media before the jury, which they're not supposed to see.

Selna asks where in USA v. Robertson it allows for some kind of questioning like that. Avenatti says the situations are different. When a witness who sat in court or read transcript, it makes sense to cross witness, because jury has seen all that. "That's not that situation."

Avenatti says the tweets are by a reporter who's biased, and the tweets are mostly inaccurate. "How is one to conduct a cross examination utilizing tweets that we told these folks they're not supposed to see?"

"The government has been aware of Ms. Cuniff's role in this trial for weeks They talk to her. They know what she's doing," Avenatti says. Prosecutors should have instructed witnesses not to read "the tweet storm" but "they did not do that."

Selna: "I deny the motion...First of all I find that Ms. Cuniff's tweets are not the equivalent of a trial transcript." They are snippets of testimony, editorial comments, but not a transcript. He didn't read all my tweets, but "I read a fair sample to understand what's there."

Onto another motion to strike testimony from Avenatti, this time for expert John Drum. Prosecutors filed under seal apparently 300+ pages of stuff Avenatti claims he should have gotten from Drum. Selna reviewing them as to whether they should be released.

Avenatti thinks it was a violation of his rights for Selna to have an unnoticed in-camera hearing without giving him notice or any chance to object. Says it's grounds for a mistrial. "I had no notice of it. None."

"It is very disturbing to me on this critical issue that an in-camera hearing would be held on this significant issue outside my presence" Avenatti said. (I'm bummed I wasn't there, too.)

Avenatti says he'll be moving for a mistrial over this, and we'll proceed.
"Very well," Selna says.
Now Avenatti asking about the minute order regarding the media's request for John Drum's charts. "I would inquire as to whether there was a request made" before that order.

Selna says yes, there was. Downtown clerk's office wanted an order. "Just as the press has a right to be here...that extends to the exhibits in the trial unless they're under seal for some reason."
"That's part of the defendant's right to a public trial," the judge says.

Avenatti: "I will note my objection to that order. More importantly I will note my objection to the process."
He says he should be notified of such requests. Selna says he's welcome to explain, "why I shouldn't allow the press to copy exhibits that are in the public domain.

Avenatti: "I believe you should rescind that order," complains he wasn't notified
Selna: "I don't believe you have any constitutional basis to object to the press having access to public records anymore than you have the right to object to the press being in a public courtroom."

Avenatti says he plans to file a brief outlining his objections. (Remember, this is all about my request for the charts that John Drum went over last week, which are on a CD downstairs awaiting me and my $32.)

Avenatti talking about Tabs, finance data he says he's never been able to get. Sagel says Regnier didn't mention Tabs to prosecutors, but Avenatti says that's false. Says prosecutors want us to believe they didn't know of Tabs until Regnier remembered the name during cross.

Avenatti says he challenges Sagel to make that representation again to the court that he'd never heard of Tabs before Regnier's cross. Selna asks if there are other issues, and AUSA Alex Wyman brings up Avenatti's first witness Evan Jenness.

Wyman said he doesn't intend to elicit testimony about the specifics of her representation, but he wants to ask Jenness in cross about the fact that she's a criminal defense attorney, and she once represented Avenatti.

Avenatti says there were never any charges, "so that line of questioning should be excluded" under 403.
"Sir, it's going to be controlled by the scope of your direct," Selna says. Selna says without a sidebar, Wyman can't get into Jenness' status as a criminal defense attorney...

...or her representation of Avenatti. Wyman is saying he doesn't need to say she represented her in another matter, but it's fair to say she represented Avenatti. And her status as a criminal defense attorney is also separately relevant and admissible.

Wyman (who's definitely the Eagle Scout in the courtroom) agrees not to bring up the subject unless there's a sidebar first. Avenatti gave Wyman a bunch of email for possible Jenness testimony, and Wyman was raising some issues, but Avenatti says he's not going to use them now.

"Unlike the government, we comply with our discovery obligations," Avenatti says.

Regarding Rule 29 motion, prosecutors will file a written response today, and Selna will consider in the morning. We're all waiting for the jury to get in now. (I can hear them out in the hallway lining up.)

Avenatti was arranging his flip board behind the lectern as he prepares to call his first witness. Remember, he can't asking leading questions in his direct exams, so his questioning style is going to have to change a lot.

OK jury is in and Selna just took the bench.
"Good morning, ladies and gentlemen. Mr. Avenatti, would you call your first witness," the judge says.
Avenatti calls Evan Jenness to the stand.

Jenness is a well-known criminal defense attorney in Los Angeles who has a bit of a niche representing attorneys in trouble, including Avenatti and, currently, Tom Girardi.

Avenatti: “Are you a licensed attorney in the state of California?”
Jenness: “Yes.”
Avenatti: “Do you know a gentleman by the name of Greg Barela?”
Jenness: “Yes.”
Avenatti: “When was the last time you spoke with Mr. Greg Barela?”
Jenness: “June 23, 2018.”

Avenatti is reading from the transcript of Barela’s testimony, about his phone call with two Avenatti attorneys and Jenness.
Avenatti asks her now: "Ms. Jenness, did you ever participate on a phone call with Mr. Barela as he told the federal agents?"
No," Jenness testifies.

Avenatti asks if Jenness was ever on a call in which Barela accused attorney of theft.
"Absolutely not," Jenness answers.
"Are you certain of that?" Avenatti asks.
"Yes," Jenness answers.

Avenatti asks if she ever tell Barela he can't accuse Avenatti attorneys of theft because it's slander?
"Absolutely not," Jenness testifies.

"Did Mr. Barela ever communicate with you about the Brock settlement?" Avenatti asks, referring to Barela's $1.9 million settlement with Brock USA.
"No," Jenness answers.

Avenatti reads more from Barela's testimony transcript.
"Ms. Jenness, did you ever hang up on Greg Barela?" he asks.
"Absolutely not," Jenness answers.

Avenatti reads his memorable last question to Barela, where he warns him he's calling Jenness as a witness and asks if he'd like to change his testimony about the call, and Barela says "I would not and I look forward to it."

Avenatti: "Is there any doubt in your mind that what Mr. Barela told this jury was completely false?"
Jenness: "What he stated was not correct."
Avenatti: "Nothing further."

For cross, Wyman immediately asks Jenness if she's a criminal defense attorney and Selna immediately calls a sidebar. So judge, attorneys and Avenatti are back in chambers now talking.

They're back, and Wyman resumes by asking Jenness if she's a criminal defense attorney and practices in LA, and is frequently on the opposing side of @USAO_LosAngeles. She agrees. Wyman asks if she was contacted about representing Barela in 2018 in his San Diego criminal case.

Yes, she was. Jenness says Barela emailed her and cc'd Avenatti. Wyman says so by that time, Avenatti was aware Barela had been charged criminally. Wyman moves into the phone call at issue. "Are you aware that Judy Regnier was on that call?" Wyman asks.

Jenness says she has no idea about any call. Wyman is trying to establish that Barela mistook Regnier for Jenness on the call.
"I have no idea why Mr. Barela testified the way he did," Jenness says.

For re-direct, Avenatti asks if fact that Jenness often opposes prosecutors in court would lead her to give false testimony to the jury. No of course not. Asks if there are any notes or claims about Regnier being in meeting, she says not that she's aware of. Wyman has no re-cross

Avenatti's next witness is someone we heard from as a prosecution witness, Joseph Varani, a senior digital investigative analyst with @TheJusticeDept in Washington, D.C. In position since 2010, DOJ employee since 2005. "That was my first job. I was in school before that."

Varani has a bachelor's and master's from @SyracuseU. Avenatti asks if he's received training on obtaining electronic data forensically. Varani is going over classes he's taken. "Not so much on cell phones, cell phones is a more specialized area." Classes were about computers.

Does he analyze phones? "On rare instances, but it is not my area of focus," Varani answers.
He's going over his work with the Eagan Avenatti law firm servers. He analyzed forensic images of servers, using forensic toolkit. en.wikipedia.org/wiki/Forensic_…

Avenatti: "Please tell the jury what a terabyte of data is."
Varani: "A terabyte is a thousand gigabytes."
🤓

Avenatti asking technical questions about Varani's process. Did his tool group the files by type of file?
"It does have that option, yes," Varani answers.
"Did anyone ever ask you to look for Quickbooks files on the Eagan Avenatti servers?
"Not specifically quickbooks files, no."

Avenatti asks if anyone ever asked Varani to look for data related to Tabs. Varani says no. Avenatti pulls his flip board over, and I could see that martini drawing from his cross of Greg Barela. He just flipped to another page though.

More Tabs questions. Was he ever asked to look for actual program instead of just data? No, he wasn't.
Avenatti: "As you sit here today do you know that there was the program Tabs on the server?"
Varani: "I don't know that."
You don't because no one asked you, Avenatti comments.

Avenatti says if he tried, he could find Tabs "within a reasonable amount of time."
Varani: "If everything was set up and running before hand, probably yes."

Avenatti asks if it'd take 30 minutes. Varani agrees, so Avenatti goes further: "Actually probably a lot less than that, maybe 5 or 10 minutes?" Possibly.
Avenatti asks if government in last 27 months has asked Varani to look for any other financial data on the servers.
No.

"Has a man by the name of John Drum ever contacted you and asked you to look for any financial information from the servers?" Avenatti asks.
"No," Varani answers.

"Has a man by the name of John Drum ever contacted you and told you I really need to see the most recent version of the @Quickbooks files for the law firm, can you help me find them?" Avenatti asks.
"No," Varani answers.
Similar Q & A for Tabs.

Avenatti is asking Varani about @Cellebrite. A lot of Q & A about how it works. Avenatti has displayed several reports and had Varani confirm they're Cellebrite reports. Points seems to be that these reports are much more thorough than what DOJ had Varani do.

Avenatti is now displaying screenshots of text messages that have already been entered as exhibits. Asks if exhibit was obtained using any forensic tool, and Varani says no.

Before he got into that, Avenatti asked: "This @Cellebrite technology, the DOJ has had that for a number of years, correct?"
Varani: "Yes."
Avenatti: "Long before 2018, isn't that true?"
Varani: "Uh, yes."

Avenatti is going through exhibits of texts and asking Varani if they were obtained using the DOJ's forensic tools, and Varani is answering no to all.

Avenatti puts up a screenshot that's different from the other iPhone message screenshots and asks if it's a @cellebrite extraction report? Varani says he doesn't know. Avenatti is implying it's totally obviously not a Cellebrite report.

"If these were screenshots, they were altered in some way when page numbers were placed on the document. Is that your testimony sir?" Avenatti asks.
"Um, yes," Varani answers.
"I'm sorry, yes?" Avenatti asks.
"Yes," Varani answers.

Avenatti says Varani doesn't know if any cell phones were ever analyzed or examined by any DOJ member other than the messages reflected in the extraction reports?

Selna sustains Wyman's leading objection. But then he corrects, because Varani is a government witness and thus an adverse witness who can be asked leading questions on direct. So Avenatti is OK to lead here.

Avenatti asks why forensic extraction wasn't done and it was all screenshots.
"It was not in the request made to the lab," Varani answers. Avenatti gets Varani to say that screenshots aren't preferred preservation method. "Ideally it's not," Varani answers.

Now Avenatti moves into texts between him and @MichellePhan. He asks if the texts were acquired using @Cellebrite or any other DOJ forensic tool.
"No, it does not look like it," Varani answers.

Avenatti asks if it costs the DOJ additional money every time they use one of the forensic tools on a device.
"It may on certain features, but for the most part, the tools once acquired can be used as needed," Varani answers.

Avenatti: So if DOJ had used Cellebrite on the texts, that wouldn't have cost any additional money? No, no extra money.
Avenatti's done, and Wyman has no cross.

Avenatti's next witness is Carlos Colorado, a former Eagan Avenatti employee who testified as a prosecution witness.

Colorado worked on Geoff Johnson's cases while he worked for Avenatti. Avenatti is having him describe other cases he did. Med malpractice, personal injury. Worked briefly on a lawsuit in which a cemetery was a defendant (a lot of Avenatti background in that case!).

Avenatti brings up the lawsuits against dental centers in Southern California. Asks Colorado how many clients that involved.
"It was in the range of 15 to 20," Colorado answers.

Avenatti asks if he regularly communicated w/ clients w/o Avenatti's presence. Colorado says yes. Avenatti says Colorado spoke Spanish to clients and is a native Spanish speaker.
"Am I not, you were aware of that at the time, correct?" Avenatti asks.
"Correct," Colorado answers.

Avenatti asks about cases involving @NFL. Did Colorado ever communicate with those clients without Avenatti? Occasionally, yes.
"And from time to time, you'd meet with Mr. Johnson without my involvement?" Avenatti asks.
"Yes," Colorado answers.

More qs about cases and Colorado's client communication. Now Avenatti asks if he's ever worked with Filippo Marchino. Wyman objects as asked and answered "a couple weeks ago," but Selna overrules. Avenatti starts asking Colorado about Jim Carrey, but Selna sustains objections.

Selna says Juror #5 handed the clerk a note that says she was "exposed" to a headline about a civil suit filed by Avenatti getting dismissed. (The Fox News defamation lawsuit.) Selna suggests asking her about her exposure, which is apparently going to happen after lunch.

Regarding the Rule 29 motion, Selna said he'll hear argument on count 1,2 4 and 5 and to reserve on all other counts. So that will narrow the focus. Judge says one question each count raises is can the wire transfer itself be unlawful or is it sufficient to be part of scheme.

So now we're on the 15-minute break now, which means it's a great time for me to go downstairs and grab that $32 CD with the charts, right? Not so fast! I can't get it now because Avenatti objected to this morning and the judge is letting him file a brief.

Thread broke, continues here:

https://twitter.com/meghanncuniff/status/1427684198433705989

OK we're back and Avenatti is continuing his direct exam of Carlos Colorado, a former attorney with Eagan Avenatti. Avenatti got Selna's permission to approach the witness, and he gave Colorado a document to refresh his recollection about other cases he worked on.

Colorado worked at Avenatti's firm for 6 1/2 years. While there, he worked on cases involving @ATT. Avenatti asks if Avenatti was involved in the cases. Colorado doesn't remember. Colorado says active attorney on the ATT cases was Jason Frank.

Jason Frank is the ex-partner who's owed $4.85 million (plus interest!) personally by Avenatti, and another $10 million from the Eagan Avenatti firm. But Avenatti doesn't ask Colorado about that.

Selna asks "What's the relevance Mr. Avenatti?" of more case talk.
"I'm going to establish that he regularly communicated with clients" contrary to testimony elicited by prosecutors, Avenatti says.
Selna gives him a little more room. "Pursue this just a little bit farther."

Avenatti asks Colorado if he was aware of a program called Tabs when he was at the firm.
"I was not," Colorado answers.
Avenatti asks about his timekeeping. Colorado gave his Excel timesheets to a firm employee named Hillary.

Avenatti asks if he understood that the time he was tracking "would be used for some purpose, ultimately."
Yes. Colorado understood it would be used if there was a verdict, to justify the firm's fees.

Avenatti asks Colorado if he was ever asked by federal investigators about the firm's accounting system
"I don't recall questions on that topic," Colorado answers.
"Nothing further, your honor," Avenatti says.

Wyman starts his cross by asking Colorado if, when he was communicating with client, if he'd stop communicating w/ them if Avenatti instructed him to stop. Yes. Wyman then asks if any of the cases discussed in direct have anything to do with Geoff Johnson's case. No, they don't.

Some discussion about types of cases and fees then:
"Was Geoffrey Johnson's case an hourly case?" Wyman asks.
"It was not," Colorado answers.
"Was it a class action?" Wyman asks.
"It was not," Colorado answers.
"Thank you. No further questions," Wyman says.

For re-direct, Avenatti is asking if Colorado has any reason to dispute Judy Regnier's testimony about law firm expenses being tracked in Tabs. No, he doesn't. Wyman has no re-cross.

Avenatti's next witness is another former lawyer from his firm, John Arden. We've heard a lot of Arden in relation to Greg Barela and that alleged phone call Evan Jenness addressed this morning. Arden just took the stand with shaggy, curly black hair and a face shield.

Arden says he was admitted in other jurisdictions, but when he worked at Eagan Avenatti, he wasn't licensed in California. "I could do certain tasks," Arden says.
"And did you do certain tasks?" Avenatti asks.
"Yes, like research and initial drafting of documents," Arden answers.

Arden worked at Eagan Avenatti from 2009 to 2019. (Who else is remembering Avenatti hammering John Drum about not having a accounting license in California?)

Avenatti gets into the Greg Barela matter. Firm started working with him in 2014. Avenatti asks Arden about hired experts who worked on Barela's case. "I probably communicated with them at some point," Arden says.

Avenatti asks if he remembers a patent expert was hired for the Barela matter. Arden recalls the firm retained a damages expert. "Do you have any idea how much the damages expert charged in connection with Mr. Barela's matter?" Avenatti asks.
"I do not," Arden says.

Arden doesn't know how much any expert charged in connection with Barela's case. Avenatti asks about the mediation in Denver, which Arden attended. We're also hearing about Arden seeing Barela in the law firm's offices regularly. Now Avenatti is reading from Barela's testimony.

He asks Arden who Ahmed Ebrahim is, the other attorney who talked with Barela along with Arden. Arden IDs him as another firm attorney. Avenatti reading more Barela testimony, about the meeting in the conference room.

This is strange testimony about what Barela claims he say Arden and Ebrahim doing during the meeting. Barela has said he say the two communicating through the class, as if to circumvent them.

Avenatti: "Did you ever make any gesture to Mr. Ebrahim or anyone in an attempt to keep information from Mr. Barela?"
Arden: "No, I did not."

Avenatti: “Mr. Arden, after March 2018, did you do everything you could to avoid Mr. Barela?”
Arden: “No, I was not trying to avoid Mr. Barela. I thought his case was done.”
Judge Selna strikes last part as non-responsive.

Avenatti gets Arden to say, "I have no idea about whether I ever purposely avoided eye contact with Mr. Barela" then "I have no recollection of purposely avoiding eye contact" with Barela.

Avenatti reads from testimony, asks Arden if he read it correctly, and Arden says yes, but AUSA Brett Sagel stands and says, actually, he didn't read it correctly. So Avenatti reads the testimony exchange again.

Regarding previous tweets, other lawyer is actually Ahmed Ibrahim. I have Ebrahim on my brain because of this important story: law.com/therecorder/20…

"Yes, I'm here because you subpoenaed me," Arden tells Avenatti.
Avenatti asks Arden if he was no longer speaking with Barela after March 2018.
"No, I was not no longer speaking with him," Arden says.
Thank you, Avenatti says, cutting Arden off.

"I don't think I've ever spoken to Evan Jenness," Arden says.
Avenatti: "Did you ever participate on a conference call with you, Mr. Ibrahim, Evan Jenness and Greg Barela, yes or no?"
Arden: "No. I d--"
Avenatti: "Thank you. Mr. Arden, just answer my questions."

"Mr. Arden were you ever on a call where Evan Jenness told Mr. Barela anything, yes or no?" Avenatti asks.
Selna overrules Sagel's leading objection.
'No, I don't think so," Arden answers.

Arden has no recollection of hanging up on Barela or of anyone else hanging up on him.

One thing -- Avenatti likes to ask about the mediation in Denver with William Downes, a @JAMS neutral. But he also always calls Downes a retired magistrate, and Stromy's lawyer @cbrew1 just pointed out to me that Downes was actually chief judge of Wyoming. jamsadr.com/downes/

Judge Selna just sustained questions about why Barela would lie about this, and why prosecutors would put him on the stand knowing he was lying.

^^^ Stormy 😇 @StormyDaniels

Arden says he never told Barela in a phone call that Brock USA (opposing party in settlement) had never made a payment. Avenatti has a letter on overhead signed by Ibrahim that was sent to Barela's new lawyer Stephen Bledsoe, responding to letters Bledsoe sent in November 2019.

"Basically what you were telling Mr. Bledsoe is, you got your facts wrong?" Avenatti asks. "Mr Arden when you signed this letter did you know if what Mr. Barela and Mr. Bledsoe had accused you of in Mr. Bledsoe's letter was untrue?"

Arden says he knew it was inaccurate. "Untrue or mistaken," Arden says. couple more questions then Selna dismisses the jury for lunch. There does not appear to be any outside-the-jury argument. We'll hear Juror #5 questioned about the civil lawsuit article after lunch.

Thread broke (again! 🙄) continues here:

https://twitter.com/meghanncuniff/status/1427692060425940996

Thread broke, continues here:

https://twitter.com/meghanncuniff/status/1427700612779499528

OK we're back in court and Judge Selna says his clerk Ms. Bredahl is bringing in Juror #5. (The one who reported seeing a headline over the weekend about Avenatti's civil suit being dismissed.)

Juror #5 has joined us. Selna is doing the questioning. He asks her what publication the article was from. Juror says: "I've been reading about the My Pillow guy and his cases" and his claims about the 2020 election. She thought the article was about that.

She started reading "and it just said a federal judge dismisses." "Once I read Michael Avenatti, I just stopped reading and hurried up and scrolled."
"I was just skimming."
"I don't even know the whole title...once I saw his name I left it alone. I didn't want to get in trouble."

Avenatti asks the juror: "Is there anything that you read that would cause you to not give me a fair shake once you deliberate?"
Juror: "I don't think so." Says she only "just saw a judge dismissed something."

"So I can feel confident that whatever you read, whatever it is, in no way impacted your ability to weight the evidence fairly to give me a fair verdict in this criminal case?" Avenatti asks.
"I don't think so; I don't even know what it's about," juror answers.

She says she "feels bad" but Avenatti tells her not to.
Selna asks if other jurors heard her tell the clerk about this. They were in the room, but juror didn't say the case she saw a headline about was about Avenatti.

Avenatti wants inquiry about what others may have heard, but Selna says no.
"I don't think there's enough there to pursue it with other jurors," Selna says. The clerk tells Selna it happened exactly how the juror said it did.
"Let's leave it where it is," the judge says.

OK Avenatti is back at the lectern continuing his direct exam of John Arden, a former attorney in the Eagan Avenatti firm. Arden worked on Greg Barela's case, and Avenatti is asking him about other work Avenatti was doing for Barela, and if Arden understood the fees and billing.

Arden says no, he wasn't privy to any communication with Avenatti and Barela about legal fees by any matters. (Random fact: Avenatti has said 'strike that' 13 times today, which is what he says when he backs up and tries a question over again.)

One quote I meant to tweet from the conversation with the juror who saw the headline: "I think the effectiveness of my instruction to report to the court is proven," Judge Selna said. Indeed! Juror seemed very aware and vigilant.

Avenatti is asking Arden about his meeting with AUSA Brett Sagel. Asks if it was in Los Angeles. Arden says no, he thought it was here in Orange County. So Avenatti wants to refresh his recollection. He showed Sagel what he's about to show Arden.

Oct. 29, 2019. He met with Sagel. "Does the first page of that document refresh your recollection that you might with them at the U.S. Attorney's Office in Los Angeles?
"No, I think it was here," Arden answers.

"So if the document says Los Angeles, that would be wrong?" Avenatti asks.
"To the best of my recollection," Arden answers.
Avenatti asks Arden if Sagel asked about "the conference room claim."

"Did you tell Mr. Sagel you don't recall that happening?" Avenatti asks.
"Yes, I believe so. I don't recall my exact words," Arden answers.

Avenatti asks if Arden explained to Sagel "whether it would be possible or not" for that to have happened. Arden said he was confused and wondered how it could have taken place. Avenatti asked if he explained how the conference room was arranged.

Avenatti asks something like, Do you recall telling Mr. Sagel if you were inside the conference room there couldn't be a reflection?
Arden says if he was in the room, he doesn't know why someone would be looking at his reflection as opposed to just him.

Avenatti asks if Arden told Sagel that what Sagel says happened didn't actually happen. (To clarify, Avenatti is referring to this small point about the conference room meeting, not the overall point about whether he stole Barela's settlement money or not.)

Avenatti asks Arden about his time keeping. Like Colorado, he gave his time sheets to Hillary the receptionist. Avenatti asks about Tabs - did he know it was used at the firm. Yes.
"At some point early on when I started, it was shown to me," Arden says. That would be early 2009.

Avenatti asks Arden if he incurred expenses when he traveled to Denver for Barela's mediation. Avenatti asks what he did when he returned to account for those. Arden says he doesn't specially remember Denver, but he'd either be reimbursed, or the travel was pre-paid by firm.

Arden gave his expenses and receipts to paralegal Judy Regnier, or another woman employed by the firm as a CPA. Avenatti returns to asking Arden about payment arrangements with Barela, then ends. Sagel is up at the lectern now for cross.

Sagel just moved Avenatti's flip board away from the lectern, and when he did he turned it around so I can see the page. The word TABS is written in large letters with a circle around it.

Sagel starts by asking Arden about previous testimony he's given that at the firm, it was Avenatti's way or the highway. "For you to do anything, you needed defendant's approval?" Sagel asks.
Arden agrees. "Nothing got filed without his approval."

Sagel asks if Arden "ever entered into a fee agreement or contract with a client?"
No. Sagel asks who was the only one who could do that?
"To my knowledge, Mr. Avenatti," Arden answers.

Sagel asks during the arbitration and litigation "who did the most work?"
Arden says it depends, "but I did a lot of work on the case."
"Generally speaking on the day to day I would just say that I did more of the day-to-day work," Arden testifies.

Sagel asks if Avenatti told him that Barela would get about $1 million if Avenatti could secure him a $2 million settlement.
Sagel asks if Arden incurred $1 million in expenses during the Denver mediation.
"No, I did not," Arden answers.

"When you found out that the case had settled for that amount, you felt good about your work?" Sagel asks."You thought a normal guy got about a million dollars out his settlement agreement?"
"That's what I thought. I thought the settlement was a good deal for him," Arden says.

"At any time when the case settled in December 2017 did defendant tell you Greg Barela deserved no money from that settlement agreement?" No.
"At any time did defendant tell you that costs and expenses from the case did not entitle Greg Barela to anything?" No.

Selna asks if Avenatti did tell Arden that, "would you have thought it was a good deal?" But Selna sustains Avenatti's objection.
Sagel asks: "After the case was settled, what role did you have?" What access did he have to attorney-client trust account?
"No access," Arden answers

Arden: "I would have understood Mr. Avenatti to have access, and perhaps Ms. Regnier."
Sagel then asks Arden about each entity Avenatti paid with Barela's money, and if they did any work on Barela's case. No to all. Sagel asks if Arden knows why they got Barela's money.
"No."

Sagel is asking Arden about his reaction in November 2018 when Barela was saying he hadn't gotten his settlement money. Arden knew the case had settled long ago. "At that point in time I was quite surprised," Arden testifies now.

Sagel asks about Avenatti's reaction to Arden talking to Barela about the settlement.
"Defendant was furious with you for talking to a client about their settlement money?" Sagel asks.
"He was angry," Arden answers.

This is hard to describe, but Arden has really wild, curly hair, and Sagel asked him if it was like that in '18. Arden says it was actually longer. Then Arden acknowledges that one of the gestures Barela saw during the meeting could have been Arden moving his hair out of his face

Sagel asks if during the angry discussion with Avenatti about Arden talking to Barela about money, did Avenatti ever tell him Barela wasn't entitled to any of the money? No.

Sagel puts Dec. 3, 2018, letter from Barela's lawyer Steven Bledsoe at Larson O'Brien LLP (now Larson LLP). Goes over the requests - immediate accounting, and a copy of the settlement agreement. Sagel asks if Avenatti showed Arden this letter. "No, he did not," Arden answers.

Sagel has Arden read from the letter. Selna overrules Avenatti's objection. "You have created a very unfortunate situation for all involved," the letter reads. Letter says Barela wants to work it out, but window for avoiding litigation is closing.

Sagel asks Arden if Avenatti told him about this letter, and that he could face litigation if answers weren't provided to Barela. No, he didn't. So when Arden got arbitration demand from Barela's new lawyer in Jan 2019, he was surprised?
"Yes, I was very surprised," Arden says.

Sagel is asking Arden about Evan Jenness representing him, Avenatti and Ahmed Ibrahim, and how Avenatti wanted them all to have the same lawyer.
"You didn't want the same lawyer to represent you as Mr. Avenatti?"
Selna sustains objection.

"You didn't believe you were in the same position as it related to the Greg Barela matter as defendant?" Sagel asks.
"That's correct," Arden answers.

Sagel goes over how Arden wasn't the one Barela had been texting with for months and months about his missing settlement.

Sagel asks if Greg Barela had sent Arden text after text after text asking about his settlement, "you would have felt the need to reply and get answers?"
"Yes, when he would text me, I got back to him that day," Arden answers.

Objectively speaking, this cross right now from Sagel feels like a really great example of someone taking a direct exam and just completely flipping it in their favor. There is so much bad stuff coming out right now for Avenatti, and in exchange for what in direct exam?

Sagel is asking about Arden's lack of a California law license.
Arden says he asked several times to take the bar exam. "Whenever I would ask, it was not a good time."

Sagel asks if Arden was just an out-of-stater doing one assignment, an obvious reference to John Drum and Avenatti's questions about his lack of CA license. But Selna is sustaining Avenatti's objections.

Avenatti muttered something about Drum being paid $600k, and Sagel said, "Your honor," then said "we'll take it up at the break." A few more questions, now Avenatti is at the lectern for re-direct. He asks Arden where he was licensed to practice law.

Arden says New York, Connecticut and Pennsylvania. Avenatti says he knew he could do work at the firm without needing a California license. If someone accused him of practicing law without a license, "That would be a bogus allegation, right?"

Arden agrees it would be a false and serious allegation.
Avenatti asks if he ever did any work or carried out any responsibilities at the firm for anyone other than him.
"Ultimately, I thought all work," Arden begins.

Avenatti gets Selna to strike the answer, "Please just answer my question," Avenatti tells Arden. Yes, he did. Avenatti asks Arden if he ever reported to Jason Frank. Yes, he did. Arden worked on @ATT cases for Frank.

Avenatti asks if Arden had "any management role at the law firm?" No. And he didn't have any knowledge of firm finances or billing. "There were times you would do work and you would present that work to other attorneys at the firm for their review and approval."
"Yes."

Avenatti asks if Arden did work for others that wasn't given to Avenatti. "I think most of the time, it also went to you," Arden says. Avenatti asks again and Arden says, "I cant think of a specific example."

Avenatti: "During the entire 10 years you were at the law firm, did you ever make a court appearance?"
Arden: "Not a substantive court appearance."
Avenatti: "You never argued in a single motion in court in 10 years at the firm, did you?"
Arden: "No, I did not."

Avenatti: "You never played any role in any trial, a speaking role, in 10 years at the firm did you?"
Arden: "No, I did not."
Avenatti: "What's a deposition?"
Judge Selna sustains Sagel's objection for relevance.

More questions about Arden's work in mediations, his lack of speaking roles. Avenatti asks if Arden went to the Denver mediation to be the lead attorney.
"No, I could not have done that," Arden answers.

Avenatti: "Why not?"
Arden: "I wasn't the lead attorney. It wasn't within the realm of my responsibilities."
Avenatti emphasizing "that wasn't within your skillset." Selna dismisses the jury for the 15-minute afternoon break.

Sagel is "putting your honor on notice" about where prosecutors plan to go in cross of the NY federal agent, "who has two separate criminal investigations into defendant."

Sagel thinks the very fact that she's testifying will open the door for questions about the NY cases in cross.
"It's hard for me to believe that just by calling her and asking her who she is, that's that's not enough to open the door," Sagel says.

Sagel says Avenatti added two to witness list yesterday, so if we get to them today, Sagel wants to defer cross until he has the night to prepare documents. Selna says no. It would have been good for Avenatti to tell them Friday, but telling them Monday at 3 "is adequate notice."

We're back, and Avenatti is at the lectern for re-direct of his former firm attorney John Arden. He ask Arden Sagel describing Barela as a normal guy.
"In your experience, do normal guys come into federal court and lie to juries?" Avenatti asks.
Selna sustains Sagel's objection.

Avenatti asks about the hair.
"Do you think your hair is the reason Greg Barela said Evan Jenness was on a call she said she never participated on?"
"No," Arden answers.

Avenatti asking about some of the names Sagel asked Arden about in direct. "Do you have any idea whether any of those payments came out of money rightfully do the law firm?"
"I don't know," Arden answers.

Avenatti asks if he has any personal knowledge of money being stolen from Barela. "No, I have no personal knowledge," Arden answers.
Avenatti: "A law firm is like a football team. They have different positions." People have different skill sets. Arden agrees.

Avenatti is asking about the call Arden had with Barela, and the inference from prosecutors that Avenatti was furious that someone had talked about money with Barela. Avenatti says he didn't find out about the call for five days.

"Isn't it true that I was angry because neither you nor Mr. Ibrahim had told me about this call where a client calls up the firm and accuses the firm of theft?"
Sagel objects and Avenatti rephrases.
Arden says he doesn't know why Avenatti was angry.

Avenatti: "Did I ever tell you that I stole Mr. Barela's money?"
Arden: "No."

Avenatti brings up letter Barela sent, which says Arden said during phone call that the money was gone. Arden says he never said that.
"You were upset that Mr. Barela would accuse you and Mr. Ibrahim of something you had not done?"
"Yes, I was upset by the letter," Arden says.

Avenatti asks if, after he got this letter, he said, "that's OK, it must be my hair."
"No I did not," Arden says.
Avenatti ends with that.
Sagel for re-cross goes over Arden's lack of courtroom experience and confirms it was because Avenatti didn't give him those opportunities.

Sagel asks about an attorney Avenatti asked about, Frank Azar, who worked on the Barela case but Arden didn't know if he got paid.
Sagel asks if he knows if Azar was listed in the law firm's bankruptcy filing because he never got paid. A lot of objections and back and forth.

Sagel asks what role Arden had in telling Regnier what the total costs and fees were to be removed from Barela's settlement.
"No role."
Sagel has no further questions. Arden is done, but Avenatti of course makes him subject to recall.

Next witness is @TheJusticeDept Special Agent Melissa Galicia. (Finally, a name to the new face I've been seeing out in the hallway with the DOJ suits today.) She graduated the @FBI Academy in August 2015. She was there for 5 to 5 1/2 months.

"It was just your anniversary?" Avenatti asks.
"It was," Galicia answers.
"So it's been six years now?" Avenatti asks.
Yes," Galicia answers.
Prior, she was a lawyer for five years. She has a law degree from @BCLAW.

Avenatti is asking about her training for extracting electronic data, her training for search warrants. What's she trained to do if she comes across a cell phone?
"Generally our practice is to put it in airplane mode so it can't be tampered with remotely." And to keep it charged.

Avenatti asks her more about putting it in airplane mode to prevent tampering.
"It's important for evidentiary purposes that the phone is in the condition that it's found and there hasn't been any deletions from anyone who might have had access to the phone," Galicia testifies.

Avenatti asks Galicia, "What is @Cellebrite?"
She says it's used to extract data. This is detailed questioning about the DOJ extraction tools and how they're used, similar to Avenatti's direct of the other DOJ employee this morning, Joseph Varani.

"I would agree cell phones are often taken during searches," Galicia says.
"Sometimes, yes," she says when asked if they seize multiple cell phones during a search.

I missed his final line of questioning, but Avenatti's done now and Sagel is at the lectern for cross. He tells Selna that, based on what they've talked about, he'd like a "quick sidebar" before asking his first question.

This is obviously Sagel getting ready to ask Galicia about the NY criminal cases, as he warned Selna he was going to do. Attorneys are back with Selna in chambers talking now. (The court reporter goes, too, because it's an on-the-record discussion.)

It's quiet in here while we all wait. A couple jurors have stood to stretch. Most are just sitting quietly. One major win for us all: The courtroom security officer has NOT fallen asleep, so no awkward need for someone to slyly wake him up. (I've seen it so many times.)

They're back. Sagel is at lectern for his cross of Agent Galicia. He asks if he's ever worked for IRS criminal investigations.
"No I have not," Galicia answers.
"No further questions," Sagel says.
On re-direct, Avenatti asks if FBI works jointly with IRS on cases. She says yes.

"Nothing further," Avenatti says.
This all makes me really want to know the details of the sidebar discussion!
Selna sends the jury home for the night after Avenatti says his next witness will take about an hour. Avenatti offered to start the exam now.

Jury is gone but I think they're going to be working on jury instructions for a bit now, or in 10 minutes. Stay tuned.

Regarding instruction talk this evening, Judge Selna is NOT Judge Carter, so the chances of us being here until 1:40 a.m. are slim. I'm thinking (hoping?) this won't go very long today. But we'll see.

I've got some other @lawdotcom work to do, so I'll be working on that and tweeting some highlights from the discussion. Stay tuned!

Sagel tells Selna he wants to know if 2nd NY agents will testify tomorrow. "The testimony we just heard should probably be stricken as irrelevant," Sagel says. Galicia didn't work the investigation and has no firsthand knowledge.

Avenatti says he wants to confer with his standby counsel, Dean Steward and Courtney Cummings Cefali, about whether he needs to call the 2nd agent. He's going to do that tonight. Now they're moving into jury instruction talk.

Judge Selna to Avenatti: "Sir, I expect you to participate in good faith" so we have a constructive session about instructions.

Judge Selna soon asks, "Sir, have you looked at these instructions prior to the start of the session right now?"
Avenatti: "Yes."
"Oookay," Selna says incredulously.
"A number of times," Avenatti says.

Avenatti says his most recent version of instructions is from Aug. 11. Uh oh! Selna says his clerk sent out new instructions yesterday at 3:24 p.m.
Avenatti says he filed objections to instructions and asks if the new ones were sent after his filing.

"Well, yes, sir, because it reflects a number of points that you made and some specific language that you requested," the judge says.
Avenatti asks counsel about the email. He says "we can do it on the fly right now."

Selna says, "Sir, I don't want to do it on the fly. I want to have a constructive session" about the instructions and possible changes. Clearly annoyed, Selna adjourns court and says we'll do this tomorrow night. Avenatti: "I had no idea, your honor. I apologize."

Judge Selna offers Avenatti this parting piece of advice:
"Well sir, you need to keep yourself informed as to what your advisory counsel has received."

With that, we're done for the day. Thanks for following along. Check back tomorrow about 8:30 a.m. for another thread.

One cat sighting on the way out. Long-haired beauty in the window sill. 😻

Thread broke, continues here:

https://twitter.com/meghanncuniff/status/1427759282905182209

A couple more Avenatti filings today. This is a supplement to his opposition to the motion to quash Evan Carter's testimony. Looks like he's hoping Selna will reconsider based on legitimate service of the subpoena: bit.ly/3xW19wz

And this is his supplement to his Jencks Act disclosure complaints regarding witnesses Robert Amenta and John Drum. It address prosecutors' filing about two undisclosed emails from Amenta. (See previous tweets:

https://twitter.com/meghanncuniff/status/1426000770583863306

) bit.ly/3iW0hE0

And another, a supplement to Rule 29 motion that addresses a question Selna asked today. Cites case that says this: "Wire fraud requires a use of the wires in furtherance of a scheme to defraud, not merely
a use of the wires during a scheme to defraud." bit.ly/3CXi7yf

Prosecutors' opposition to Avenatti's Rule 29 motion is in. "Defendant ignores the overwhelming evidence against him, the legal standard required under a Rule 29 motion, and the law required to prove wire fraud." bit.ly/2W6xFzd

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