Thread by @meghanncuniff

Good morning from the federal courthouse in Santa Ana, California, where I’m here for the 18th day of testimony in Michael Avenatti’s wire fraud trial. Attorneys are due at 8:30 and the jury gets in at 9. Follow this thread for live updates all day. ⚖️🧵⚖️

On tap this morning is Avenatti's Rule 29 dismissal motion. Here's the original filing: bit.ly/3sxmOKz
Here's his reply to prosecutors' opposition: bit.ly/3y0PwEH

And here's prosecutors' opposition: bit.ly/3k8jl15

Judge Selna is hearing from Avenatti now. He says this is NOT a general fraud case. "I cannot be convicted under law of using wires to transmit money legitimately due me or the law firm," Avenatti says.

Judge Selna: "Sir, i'm not sure that's an accurate statement of the law." Selna says law is clear that lawful transactions "can stand as a necessary" act under the wire fraud statute if it's in furtherance of a scheme.

"The inquiry doesn't end by telling me it's a lawful transfer," Selna says. The inquiry must consider whether it was in furtherance of scheme, too.
Avenatti: "Your honor, I don't believe a lawful transfer can be in furtherance of a scheme" generally.

Avenatti says the transfers involve legitimate use of funds. "Otherwise what would happen is anytime you had case where someone was entitled to a portion of the money, and they took that portion that they're entitled to, pursuant to the government's theory...."

"...and then they later took money they were not entitled to, it would not be appropriate or allowed for the government to go back in time and charge for conduct related to payments and wires" that were based in legitimacy, Avenatti says.

"Maybe it's out there, but we have looked wide and far, I have not found a single case where the wire fraud statutes have been used to charge conduct against someone" when there's no dispute that the defendant was entitled to a portion of the money, Avenatti tells Selna.

Avenatti says all cases cited by prosecutors "are cases where the government had absolutely no legitimate right to any portion of the money." But here, there's no dispute that the firm "had a legitimate right to a portion of these monies."

Rather, "the dispute centers on what was that portion and whether the wires were used in furtherance of the scheme to defraud."
"Those are the two fundamental questions in this case," Avenatti tells Judge Selna.

AUSA Brett Sagel says Avenatti “is not entitled to claim he’s entitled to the money when he stole it and lied to his clients about what it is.”
Selna: “Your position is the scheme had commenced prior to the two transfers?” (in counts 1 and 2)
Sagel: “That’s correct, your honor.”

Sagel: “The scheme had already commenced when he lied to his clients about what is or isn’t the settlement…The minute the money comes in, he’s already lied.”

“He’s not entitled to any money when he’s lied to his client to obtain money and property, and every wire he makes after that is in furtherance of it," Sagel continues.

Sagel cites Avenatti’s “own under oath testimony” supports this, referring to the audio from the bankruptcy hearing prosecutors played for jurors in which Avenatti talks about client trust fund requirements.

"There’s no proof that he’s legitimately earned anything when he’s lied to his clients," Sagel says. "His own under oath testimony says that."

Judge Selna denies Avenatti’s Rule 29 dismissal motion for counts 1, 2, 4 and 5. (He’s reserving on the other counts.)
“I find that the government had presented sufficient evidence, including the inference that can be drawn from the evidence," the judge says.

Selna says “A reasonable jury can find beyond a reasonable doubt that each of the crimes was committed.”
"The fact that those transfers may have been themselves permitted under fee agreements is not conclusive," the judge continues.

That doesn’t answer whether the transfers were in furtherance of a scheme, but Selna explains why he believes there’s sufficient evidence to show that the transfers in each count were indeed part of a scheme.

Avenatti has argued he didn’t physically send one of the transfers, but Selna says he provided the information for the transfer, and jurors can easily infer “that he understood that as a likely consequence that he would receive a wire transfer predicated on that information.”

Regarding Avenatti's subpoena of government expert John Drum's colleague Evan Carter, it sounds like Selna is allowing the subpoena but not requiring document production. But he's going to set up a phone hearing with her attorney for later in the day.

Selna is suggesting they not have a trial day tomorrow so they can do jury instructions and sort out the Tabs issue. Nothing official yet, but Sagel is opposed. Selna wants USA’s Patrick Fitzgerald, head of the taint team, in court to answer questions about the Tabs data.

Specifically, does prosecutors' taint team (process for reviewing info for attorney-client privilege) have the Tabs data? "Present record would seem to indicate that no inquiry has been made to the taint team with respect to the Tabs data."
Selna: "I’d like to know the facts."

Now they're talking about Avenatti's subpoena of Morgan Witos, a CPA who worked with his firm. Avenatti says he knows her father, a retired superior court judge in New Jersey. "He is a friend...I've maintained a good relationship with him" Avenatti says.

Avenatti says he called Witos' father "as a courtesy, as a friend" and told him "unfortunately" he'd need his daughter to testify.
"He voiced no opposition to that. He was very cooperative," Avenatti said. "I've known him since about 2009, your honor."

Dad called Avenatti back and "he told me that she really didn't want to come and testify."
Avenatti: "This is a critical witness. I need her here to testify. I don't want to inconvenience this young lady. I like her. I've had a good relationship with her father."

Selna says Witos has said she can't afford counsel in California to fight the subpoena. Avenatti is skeptical.
"She lives in a nice house in Dallas" and her husband has a very good job. "They live in a nice house," Avenatti says. Avenatti's defense will pay to get her out here.

Avenatti cited AUSA Alex Wyman's five-second cross of Hillary Wolett for why he wants to call Witos. Says he needs to counter Wyman pointing out that Wolett has no knowledge of firm finances in Tabs by calling someone who does.

"At the appropriate procedural time, we'll take this up again," Judge Selna says.

Avenatti's former law firm employee Kathy Mosby Sneddon is back on stand. She confirms Avenatti used to call her "Mosb."
"Is it acceptable to you that I call you Ms. Mosby?" Avenatti asks.
"Yes," she answers. (So I'll refer to her as Mosby instead of Sneddon as I did yesterday.)

Avenatti asking about Mosby's interview with federal investigators.
Avenatti" "Was that a pretty intimidating process?" "
Mosby: It was intense, yes."
Avenatti: "Was it scary?"
"Not as scary as this," Mosby answers, laughing.

Avenatti: "So it wasn't as scary as testifying in this court proceeding, but it was scary. Would you agree with that?"
Mosby: "I don't know if 'scary' would be the word. It definitely was intense."
Avenatti: "Was it unnerving?"
Mosby: "No."

Avenatti gives Mosby a document to refresh her recollection. Some talk about finding her glasses, but the text is big enough for her to read it. (I have really bad eyesight so these details really speak to me.)

Document is apparently her interview memo, and Avenatti is trying to get her to remember that signed client agreements were placed in client files. She reads the notes and confirms she now recalls. She also told investigators she dealt with "general financial matters" at firm.

Avenatti is asking about Mosby's communication with clients. She says she never communicated with Geoff Johnson, but she did communicate with his parents.
"I do not recall an exact date. At the beginning of the case," Mosby says. She doesn't remember what it was about.

Avenatti gave Mosby four cards to look at. They are cards that she sent to him.
"Do you recall there were others beyond those four?" Avenatti asks.
"There sure might have been," Mosby answers. Avenatti asks her to read aloud. Sagel objects, but Selna over rules.

"Dear Michael, I could go on forever letting you know how much you changed my life...Thank you from the bottom of my heart for all you do," Mosby reads.
Avenatti says matter of factly: "Please read the next one."

"Dear Michael, as I said before, there are no words. Thank you for being you and changing my life.. I appreciate you and what you've done for me more than you ever know. I'm so blessed to be part of this team," she reads.
Avenatti: "Can you please read the next one?"

"Dear Michael, no words could ever convey to you how much you mean to me" and how much "you've changed my life. From the depths of my heart, I thank you. I love you and thank the universe for you. Put this card somewhere for no one else to see. Love you," Mosby reads aloud.

"Well, I guess I didn't do that good a job on that direction did I? Avenatti says, before telling her he's not going to ask her to read the fourth card unless she wants to.
"I don't care," Mosby says.
"Go ahead and read it," Avenatti says.

"Dear Michael, the only thing I can say is 'thank you." Says she'll do everything she can to make sure EOA "is the shit, aka the most successful law firm ever." Says their thank you to her "was life altering" "I will always have your back," Mosby reads aloud.

Avenatti: "You never stopped giving me cards during the 10 years did you?"
Mosby: "I'm sure I did not."
Avenatti: "When you were at the firm did I ever ask you to forge a signature?"
Mosby: "No."
Avenatti: "Did I ever ask you to destroy documents?"
Mosby: "No."

Avenatti: "Did I ever ask you to manipulate a document?"
Mosby: "No."
Avenatti: "Did I ever ask you to cheat a client?"
Mosby: "No."
"Nothing further," Avenatti says.
AUSA Brett Sagel up for cross-examination.

Sagel starts by calling her Ms. Sneddon. I'll still call her Mosby for consistency purposes today. Sagel asks about the card's reference to EOA. That's Eagan O'Malley and Avenatti law firm that ended in 2011. "I don't recall the exact year" the firm closed, Mosby says.

Sagel: "Do you have cards from the defendant from 10 years ago?"
Mosby: "No."
Sagel: "Do you have any cards from the defendant?"
Mosby: "No."
Sagel: "Do you know where these cards were kept for over 10 years?"
Mosby: "No."

Sagel re: Avenatti’s direct about Mosby leaving firm because of Regnier.
“The other reason you left the firm was the defendant?” Sagel asks.
“Just specifically the negative energy at the firm,” Mosby answers.

“You felt that the defendant and Ms. Regnier were doing secretive stuff behind closed doors that you didn’t feel comfortable with?” Sagel asks.
Mosby: “I knew they were doing stuff behind closed doors. I can’t say I didn’t t feel comfortable. I can’t go that far to say that.”

Sagel: “But you didn’t want to work there anymore?”
Mosby: “Correct.”
Sagel: “No further questions, your honor.”

On re-direct, Avenatti asks if Mosby left because she felt Regnier wasn’t sharing stuff with her like she used to. “I’m sure that was part of it.”

Sagel tried to get her to say she left because she’s uncomfortable, but she won’t because “that’s not the truth, is it?”
“I didn’t know what was going on behind closed doors, and I didn’t like the negative energy at the firm,” Mosby answers.

Other questions about Avenatti’s involvement and control fo the firm, and he asks about Sagel’s suggestion that “I didn’t reciprocate your feelings.” That “would be completely false, wouldn’t it?”
Mosby agrees, and Avenatti ends.

For re-cross, Sagel asks if she remembers saying she stopped talking to Avenatti because he’d just lie and make excuses.
“I don’t remember saying that,” Mosby says.
Sagel refers her to paragraph 36 on page 5 of 6 in the interview memo.

Next witness is IRS Special Agent James Kim, who was at the judgment debtor exam in LA federal court back in March 2019. He's a few minutes into his testimony, and he's gone over his accounting background.

Also, Kim is the co-lead investigator on this case. So previous tweets about Remoun Karlous being the lead investigator unfairly slighted Kim. They are co-leads!

Avenatti refreshes Kim's recollection that Kim communicated with Andrew Stolper as a witness in March 2019.
"So if anyone was to tell this jury that Mr. Stolper was never a witness in this case, that would be untrue, right?"

Kim: "At the time, uh.."
Avenatti: "Sir, just answer my question. Would that be untrue?"
Kim: "Yes."

(One more thing I meant to share from Sagel's cross of Mosby: He asked her about her departure payment from the firm, and if she knew when she got it that there were clients who hadn't gotten their settlement money.)

Avenatti asks Kim who was primarily looking into what fees and expenses were due Avenatti and the firm.
"Special Agent Remoun Karlous," Kim answers. And the prosecutors.

Avenatti asks if Kim knew the burden of proof was on the government. Selna overrules Sagel's legal conclusion objection.
"Yes," Kim answers.
No burden for defense, right? Yes.
And that's a reason servers were being imaged?
"Yes," Kim answers.

Avenatti asks about Tabs, then says, "You're laughing. Why are you laughing?
Kim: "I don't know what Tab is."
Avenatti: "I know you don't know what Tab is. But what about Tabs. T-A-B-S."

Kim says something about attorney time keeping, but says:
"I really don't know what it is, but that's my best guess."
Avenatti asks about conversations with Karlous about Tabs. Kim says Karlous mentioned it a couple times.

Avenatti: "Did you want to learn about it? Did you want to" learn about Tabs?
Kim: "It wasn't my responsibility to look into the financial aspect of the case, so no, I didn't."

Avenatti: "When's the last time you spoke to Mr. Sagel or Mr. Wyman about Tabs"
Sagel objects for hearsay, work product. Selna sustains.
Avenatti tells Kim he's not asking for content, just dates.
"Yesterday," Kim says.
It was before Karlous testified.

Avenatti asks if it was was before Karlous took the stand, or during a break.
"It was mentioned throughout the day I guess," Kim answers.
"So it was throughout the day with Wyman and Sagel?
"Yes," Kim answers.

Avenatti: "Have you ever undertaken any effort whatsoever to get the Tabs data?"
Kim: "No, because it wasn't my responsibility."
Avenatti: "No because it wasn't your job, correct? That's your testimony?"
Kim: "That's correct."

Avenatti: "That job was Mr. Karlous's job, right? I think that's what you testified to earlier?"
Sagel: "Based on that, asked and answered" objection, but Selna overrules

Kim says, "Yes" and something about "if we did have Tabs" but Selna strikes everything after yes.

Avenatti moves into meetings Kim and other feds had, and when they first learned of Tabs. He brings up the July 2019 meeting with Regnier in which she mentioned Tabs. He's using the memo from that interview to refresh his recollection.

Avenatti: "Did you do anything to get the Tabs data?"
Kim: "I didn't."
Avenatti: "Did anyone?
Kim: "I don't know."
Avenatti: "Did you ever suggest to anyone 'hey maybe we should get that Tabs data and see what the expenses were'?"
Kim: "No."

Avenatti: "Do you recall anyone on the prosecution team saying that or anything like that?"
Kim: "I don't recall if they did or not."
Avenatti: "Did you ever make any other request" for information off the law firm servers?
Kim: "No, because that wasn't my role."

Kim describes Karlous as "more like the quarterback" in the case. He contacted people and would "just make sure everything is flowing correctly."
More questions about the process for imaging the law firm's server.

Avenatti is asking Kim about his meetings with Greg Barela and other ex-Avenatti clients. He goes over what he established through Karlous yesterday: the feds only allow one note keeper in meetings so there won't be any conflicts in different notes.

Judge Selna recesses the jury for the 15-minute mid-morning break.

One thing: Avenatti asked a few questions about case being most "high-profile" Kim has ever worked. When this was going on, I was the only person in the public gallery. No one else, not even the @Law360 or @LADailyJournal reporter, is here today.

Regarding the charts, it'll probably be at least another day before they're up. I know you all appreciate what I'm doing here, but allow me to vent about someone actually having the nerve to request the charts after I did...

...then ask me to send them to him because he doesn't want to drive to the courthouse to pick them up himself. Managing all this coverage and sorting through exhibits like that is very time consuming, and journalists have a duty to thoughtfully inform and provide context.

Regarding tomorrow, Judge Selna just took the bench and said he's officially decided we're not hearing testimony tomorrow. Jury will come back on Tuesday, and Avenatti and the attorneys will talk about the Tabs issue, and jury instructions, tomorrow. Starting at 10:30 a.m.

Jury is back and Avenatti is continuing his direct exam of IRS Special Agent James Kim. He starts by asking if Kim talked to prosecutors during the break. "Did anyone mention Tabs?" Avenatti asks.
Kim: "Just overhearing their conversations, yes."
"Nothing further," Avenatti says.

To start his cross-examination, Sagel asks, to clarify, Kim didn't talk to prosecutors during the break, correct? Correct.
Sagel asks about Avenatti saying Stolper is a witness "in this case." As it relates to the four clients - he names each - is Stolper a witness in this case?

"No he is not," Kim answers.
Sagel asks Kim if he's investigating "other matters" related to Avenatti.
"Yes," Kim says.
Sagel asks if the documents Kim got from Stolper for the case had to do with the Eagan Avenatti's bankruptcy. Yes, they did.

For re-direct, Avenatti says Kim has said he was getting documents from Stolper for "this case." "Now all of a sudden you've changed your story?"
Selna overrules an objection but says: "We're going to have a sidebar." Now they're all back in chambers, or in the chambers hallway.

One issue here is the fact that this case has been bifurcated. This jury is only hearing the wire fraud counts, and the tax and bankruptcy stuff is for a second trial scheduled in October. So sidebar is likely at least partly about that. Is it one case or two etc?

OK, they're back. It's fun because we get no explanation about sidebar, so we just have to guess based on what happens next. And Avenatti just gave us a huge clue: "No further questions." Sagel has no re-cross. Kim is off the stand now.

Next witness is Nshan Tashchyan, an ordinary agent with the @USTreasury. We heard from him in the prosecution's case.

^^^ Excuse me. That should say SPECIAL agent. Not ordinary agent. They are all special!

Avenatti is asking Tashchyan about the process for taking custody of the law firm servers. He got them from the IRS's data center and took the physical servers going to the IRS' offices in Laguna Niguel.
There were six servers.

"Did you leave any Eagan Avenatti servers behind at the data center?" Avenatti asks.
"No," Tashchyan answers.
Avenatti asks why they went right to IRS offices w/ servers.
"Because they're evidence. Evidence is going back to our office. We can't just leave it in the car."

Avenatti getting into details about procedures for storing the servers and who can access. Tashchyan: "Each server was imaged individually." A forensic image of each, and each had its own file.
Avenatti asks if he "immediately began imaging the servers" when they got to office.

Tashchyan says yes. Avenatti asks him to explain to the jury how he imaged each server. Tashchyan gets into the nerdy details. (Court reporter has already asked him to slow down.)

Three machines can be connected to one virtual server.
"This is otherwise known as partitioning a server is that correct?" Avenatti asks.
"It's not a partition because you're running three different devices on it," Tashchyan answers.

Tashchyan says "it was a slow process."
"One week?" Avenatti asks.
"Roughly," Tashchyan says.
Avenatti says he didn't stay there the entire week, and Tashchyan says no, he did. But apparently he didn't actually sleep there: "I would go down there every morning."

He'd lock the door to the server imaging room before he went home, then he'd come back in the morning and start another server.
"So you babysat this process for about a week?" Avenatti asks.
"Yes," Tashchyan answers.

Tashchyan is explaining a lot of technical stuff. Avenatti puts document on the overhead and turns it over so the page is blank, then draws what he calls a "crude" and "terribly drawn" picture of a server. He's just trying to help jurors visualize what Tashchyan is saying.

The images were stored in a cabinet at the IRS office in Laguna Niguel.
"They're still there?" Avenatti asks.
"Yes," Tashchyan answers.
(Look at @LagunaNiguelCty, getting put on the map. New suggested city motto: "Home to the Eagan Avenatti server images")

Avenatti asks if Tashchyan determined how servers had been backed up over the years when he went to pick them up from the data center.
"There were backup tapes, but I did not image the backup tapes," Tashchyan says.

Can't remember if they were seized from the firm "or Judy's residence."
"I can't remember her last name," Tashchyan says of Regnier.
Tashchyan says the backup tapes are still in IRS possession. They're in downtown LA office.

Tashchyan says he doesn't know exact number of backup tapes, but there are a couple boxes.
"You haven't looked at them since they were initially delivered to you, is that right?"
Tashchyan says yes.

Avenatti asks if anyone has asked Tashchyan to look for Tabs data, either on the servers or the backup tapes.
"No," Tashchyan answers.

Earlier, Avenatti drew another sketch on the overhead that's three rectangles stacked on top of each other and connected by lines. It represents process for imaging servers. So that's up on the screen as he questions Tashchyan.

Avenatti asks if Tashchyan ever got a list of the types of data, or the programs, on the servers. No, he didn't.
He was asking about exporting of @Quickbooks files when Judge Selna called the lunch break. Jury just filed out.

Right now Judge Selna is having a phone hearing with John Drum coworker Evan Carter's lawyer, Nina Marino. He just told her he plans to quash the subpoena for documents, but he will allow her testimony. kaplanmarino.com/nina-marino/

Marino says none of the work Carter did formed the basis for the charts entered as evidence by Drum. They were prepared prior to her involvement. Work was "very rudimentary" such as removal of citations.

And Avenatti has already asked Drum about the mock cross exam in which Carter played Avenatti.
"Any further testimony on this issue would merely be cumulative," Marino says.
Selna thanks her and formalizes his ruling: No document production, but Carter must personally appear.

Selna tells Marino "we're dark tomorrow" (court speak for no trial day), but he expects them to coordinate over the weekend to secure Carter's appearance on Tuesday.

And with that, we're on lunch. Back at 1:30 p.m.

All this oral argument with Judge Selna reminds me of a rousing speech he gave about oral argument to the OC chapter of the Federal Bar Association (@federalbar) back in July 2019, as documented on my Instagram. “Oral Argument is Vital.”
“I enjoy oral argument.”

Regarding the phone hearing about Evan Carter's subpoena, I was just alerted to the fact that it was Jennifer Lieser, not Nina Marino, who made the argument. So previous tweets with quotes from Marino are in error - it was Lieser who did the talking. kaplanmarino.com/jennifer-liese…

Prosecutors just filed their opposition to Avenatti's latest mistrial motion, and they say a bit about Tabs. Per the usual, the footnotes are fiery. "Not surprisingly, this statement is not supported by any declaration or exhibit as it is simply false." bit.ly/2W7oD4L

We're back in court, and Avenatti is addressing the USA's new filing, and a footnote about testimony they plan to elicit from Avenatti's current witness.
"I cannot object more strongly to this," Avenatti says.
Selna says he's going to take it question by question.

Avenatti trying to argue, but Selna says "Sir" that the jury is waited.
"It's going to create a mini trial in this case," Avenatti says. This is apparently about prosecution planning to ask Tashchyan about Avenatti having access to the servers if he wants the Tabs data.

"Sir, I'm going to listen to the questions, and we're going to go where we go," Selna says.
Avenatti says that's not appropriate, they shouldn't have to have basically an evidentiary hearing in front of jury, but Selna is not having it. Says they'll take it question by question.

Jury is in and Avenatti is back at the lectern for his direct of IRS Special Agent Nshan Tashchyan about the backup tapes of the law firm servers he says he never checked. They were seized from paralegal Judy Regnier's home.

Avenatti: "So as you sit there today, you don't know what is on the tapes?"
Tashchyan: "No."
Avenatti: "But your understanding is the tapes are a backup of the servers?"
Tashchyan: "Yes."

Tashchyan doesn't know the date of the most recent backup. Avenatti asks if anyone has ever asked him to see what's on the backups, and Taschyan says no. Did anyone ask Regnier what the backup tapes were or what period of time they covered?
"No," Tashchyan answers.

Avenatti ends with that. AUSA Alex Wyman is at the lectern for cross-examination.
"Good afternoon, Ordinary Agent Tashchyan."
Whoops - strike that. Wyman actually said, "Good afternoon, Special Agent Tashchyan."

Wyman is asking Tashchyan if he can select particular information or data to image from the servers.
"No, it has to be the whole thing," Tashchyan answers.

Wyman asks about Avenatti asking about Tabs. Fall 2019, was Taschyan asked to set up a remote computer with materials so defendant could review? Yes. Avenatti went to Laguna Niguel offices twice in fall 2019 to review. Meetings were at Avenatti's request.

Avenatti wanted to review the emails and the client files. Avenatti's attorney was with him (Dean Steward) and Taschyan was there, too. They asked Taschyan to conduct searches and give them information.
"Whatever they wanted" he exported out and gave it to them.

Wyman asks a series of questions about the lack of focus or even mention of Tabs. They never asked to see Tabs.
"Did you hear either of them even mention Tabs?" Wyman asks.
"No," Taschyan answers.

For re-direct, Avenatti asks Taschyan if it's his testimony to jury that Avenatti never asked for anything from the servers that he didn't get. Taschyan says not by him personally.
Avenatti establishes Taschyan was not privy to what Avenatti asked prosecutors regarding servers.

Avenatti: At no point in time could Taschyan give them anything they wanted from the servers.
"You understood that that had to be approved first?" Avenatti asks.
"Yes," Taschyan answers.

Avenatti asks about Sagel's role, and Patrick Fitzgerald, the AUSA in charge of the taint team that reviewed servers for attorney-client privilege info. (For those curious about this 'taint team' stuff, a cursory Google search brought me to this: bit.ly/3meZNdZ)

Avenatti references Taschyan's testimony that whatever they wanted was exported.
Avenatti: "That's not entirely true, is it? Whatever we wanted and whatever was *approved* was exported out right?"
Taschyan: "True."

Avenatti: "The approval was a pre-requisite before we could get anything, right?"
Taschyan: "Yes."
For re-cross, Wyman asks about Avenatti list of stuff he wanted from servers.
"Did anyone ever tell you you could not provide the defendant with everything on that list?"
No.

Next witness is Special Agent Ryan Roberson of the @USTreasury. (Again, not a DOJ employee.) He says he's been working the case basically full time for the last couple months. Avenatti is asking him about his contact with witnesses.

Avenatti is asking Roberson about emails and texts with each witness. He asks about the purpose of Roberson's contacts with Robert Amenta of the Federal Reserve Bank of New York, who testified about the chart of 10 wire transfers that make up the wire fraud counts.

Avenatti: "Why did you not testify about the chart?"
Selna sustains Sagel's relevance objection.
Avenatti asks if he didn't testify about the chart because if he did, government would have to release all his notes related to its creation. Selna sustains objection.

Avenatti asks if Roberson provided Amenta the chart so he could make sure it was accurate.
"We wanted to confirm that he could confirm the transfers went through Fed Wire," Roberson answers.

Amenta suggested changes to chart, but the changes weren't made. Roberson says he made the decision not to make the changes that Amenta requested.
Avenatti asks if he consulted anyone about decision not to make changes, but Selna sustains Sagel's objection for work product etc.

So Avenatti tries again: "Did you make the decision on your own?"
And it works: Selna overrules Sagel's objection.
"I don't recall if I made it on my own," Roberson answers.

His role was to confirm wires went through FedWire. Roberson's role was to confirm the chart and transfers through bank and finance records. Avenatti is saying, so you didn't care what Amenta's view was on the accuracy?

"I cared about him confirming whether the wires went through FedWire," Roberson says. Answer is stricken, and court reporter reads aloud question about whether he cared about Amenta's views on the accuracy of the transfer numbers.
"No," Roberson answers.

Avenatti asks if Roberson was ever asked to compile his communications with Amenta. No. (This touches on the two emails prosecutors released last week from Amenta, that they said they'd just found.)

Sagel stood and asked if we were doing a discovery hearing, and Avenatti says "I certainly hope so." An Sagel points out that Avenatti said earlier we shouldn't have an evidence hearing in trial, and Selna basically shushed them both and told Avenatti to ask a question.

Avenatti asks Roberson when he first heard of Tabs.
"I don't know anything about Tabs," Roberson answers.
Avenatti asks if he can have the answer read back.
Sagel objects as argumentative. "Your honor, he heard the answer."

Avenatti snaps, "enough of this" at Sagel and Selna again shushes them and has the reporter read back the answer as Avenatti asked.
"I don't know anything about Tabs," the court reporter reads aloud.

Avenatti asking Roberson about Tabs and when he learned of it. Did he know in November 2019 that Regnier said firm kept expenses and costs through Tabs? He gives Roberson an interview memo to refresh his recollection.

Roberson interviewed Robert Amenta of the Fed Reserve Bank in New York. Avenatti asks if he did anything to prepare Amenta for testimony other than that interview.
"I believe we spoke with him two or three times," Roberson says.

"One of those conversations he reviewed, actually I don't recall."
"Well what do you recall him reviewing?
Roberson: "I recall one of the conversations and one of the interviews he confirmed that all 10 wires in the indictment went through FedWire."

Roberson continues, "I think before that he didn't have the backup information yet."
Roberson is hesitating and asks Avenatti, "do you have the memorandums with you?" referring to the summaries of the interviews.
"Maybe," Avenatti says slyly.

Avenatti again asks Roberson about what he recalled Amenta reviewing. "I don't recall," Roberson answers. But there were substantive conversations.
For cross, Sagel asks if Roberson cared about the accuracy of the chart when he consulted Amenta. Yes, he did.

On re-direct, Avenatti goes over Amenta suggesting changes regarding years of transfers, and the changes not being made.
But Roberson disputes Avenatti's claim that Amenta said numbers were wrong. Amenta just said year wasn't included, and Roberson opted not to include the year.

For re-cross, Sagel asks if, despite the years not being listed, Amenta was still able to conclude the wires went through the FedWire. Roberson says yes. And now he's off the stand.
Selna asks for the next witness. Avenatti asks for a sidebar. "No," the judge says.

So Avenatti calls Morgan Witos. Who as we know from this morning's discussion is not here, so Judge Selna says call your next witness.
"Evan Carter," Avenatti says.
Selna says Carter's been ordered to be here on Tuesday.
Next witness?
"John Drum," Avenatti says.

Selna says we're taking the morning break and send the jury out. Now he's asking Avenatti if Drum is on the witness list. No, but Witos and Carter are.
Selna asks if Avenatti ID'd Drum as a witness to prosecutors yesterday. "Sir, answer that question."

Avenatti: "I don't think that's entirely accurate."
Selna: "Sir, answer that question."
"Did you identify to the government at the close of business yesterday that Mr. Drum would be a witness?" Selna asks again.
"No, because I didn't think I'd need him," Avenatti says.

Avenatti says he didn't anticipate running out of witnesses today. Judge Selna says we're adjourning for the day now. The jury files back in and we're awaiting Selna's return to the bench to tell them what's going on.

"Ladies and gentlemen, it's not uncommon in a long trial to run into logistical difficulties with witnesses," Selna tells the jury. Judge says he realizes "this case is going longer than any of us expected" but "I think everyone is dong their best" to move it along.

Judge Selna tells jury they have a lot to do tomorrow outside the jury, so come back Tuesday at 9 a.m.
"Thank you for your perseverance," Selna tells the jury.

Sagel tells Selna he's found the emails Andrew Stolper sent prosecutors regarding Avenatti. "I feel very confident they don't fall under any discovery obligations," Sagel says
Selna says file in camera and "I'll review them and determine whether they're subject to disclosure."

Avenatti stands and says that "any contact that Mr. Stolper had with the U.S. Attorney's Office related to me, I believe is required to be produced" citing Brady and Rule 16. It goes to his defense "and the good faith or lack thereof of this prosecution."

Selna sounds annoyed. "Sir, that's why I'm going to make a detailed review, to see if they're subject" to disclosure. "It doesn't follow that any time Mr. Stolper's name appears" it must be produced.

Sagel says he knows Selna doesn't want the attorneys thanking him (

https://twitter.com/meghanncuniff/status/1420799953559986176

), but he thanks the judge for accommodating schedules tomorrow. (We're starting at 10:30 a.m.) Selna says the thank you is OK this time because "that's not a substantive ruling."

With that, we are done for the day. Thanks for following along. I'll post filings as they come in today, and I'll be in court tomorrow for the Tabs talk and the jury instruction work. Check back about 10:30 a.m. for another thread, and look for a new @lawdotcom article soon.

Prosecutors just filed a short brief about Avenatti's questions this afternoon regarding firm server backups. "At all times defendant knew about and was told about the back-up tapes and the plans not to search these back-up tapes." bit.ly/3k7Ep82

Here's Avenatti's reply to prosecutors' oppp to his mistrial motion. "Indeed, the government attempts to shift the burden to Mr. Avenatti while ignoring its own, independent obligation to produce Brady information irrespective of what Mr. Avenatti does." bit.ly/3z79Xkz

@threadreaderapp Unroll, please. Thank you! 🚀

A bonus for the late nighters like me: One of the charts. This was the final one shown to jurors during prosecution expert witness John Drum’s direct exam. More TK.