Thread by @meghanncuniff

It’s Monday in California, and I’m here at the federal courthouse in Santa Ana for a hearing and status conference in Michael Avenatti’s wire fraud case. Follow this thread for updates from Senior U.S. District Judge James Selna’s courtroom.
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It’s a busy morning in Judge Selna’s courtroom, as you can see from his calendar. It doesn’t look like the 8:30 item has started yet, so the 9 start time for Avenatti is going to be delayed, too. (It's like the dentist's office.) bit.ly/2WgEbmu

In the meantime, documents. Here’s what's on tap today.
Avenatti’s amended double jeopardy motion: bit.ly/2WDFqgb
Prosecutors’ opposition: bit.ly/2Yal7rb
Avenatti’s reply to opp: bit.ly/2Yiy1DG
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As I posted last night, Judge Selna issued a tentative ruling denying the double jeopardy motion. He'll hear argument about that tentative today. Check it out here: bit.ly/3D7unvf

We're also inevitably going to hear discussion about the state of the data @TheJusticeDept still needs to give Avenatti. Avenatti asked for 75 days and also 125 days to review in a status report filed here: bit.ly/3l0NxwL

OK the 8:30 item people got bumped because someone was still MIA, so the Avenatti hearing should be starting momentarily. I heard the clerk talking via phone to @TheJusticeDept's Joe Varani, who'll apparently be joining us via phone from Washington D.C.

AUSAs Brett Sagel and Alex Wyman are here, along with AUSA Patrick Fitzgerald, head of privilege-review team in charge of reviewing Avenatti's law firm servers. Fitzgerald just told clerk that IRS Special Agent Nshan Tashchyan is supposed to be here, but he's stuck in traffic.

Avenatti and standby counsel Courtney Cefali shared a "look" when Fitzgerald told clerk Tashchyan isn't here. They're here with standby counsel Dean Steward, along with someone I presume to be their tech expert. (Not Joe, the guy from the trial. He disappeared a long time ago.)

Uh oh - clerk just told everyone to play "musical chairs" because the person who was MIA for 8:30 case just showed up, and the judge wants to take that one first. So everyone got up from the tables, and we'll be waiting a bit for the Avenatti hearing.

Fortunately prosecutors just filed something to keep us occupied: Their own status report. (Email notification came in 27 minutes ago.) "As previously reported, the indexing of the Server 5 files by Special Agent Tashchyan has slowed dramatically..." bit.ly/3aa8TkU

OK, that was quick. Avenatti's hearing is up now. Clerk and tech staff setting up a phoner with DOJ's Joe Varani, and also IRS Agent Tashchyan now, after confirming with Fitzgerald that he still isn't here. So Varani from DC and Tashchyan from the 405 or maybe the 5 or...?

Avenatti just introduced his people, and the tech guy is named Ernie. (He has a last name, too, but I need to confirm spelling.) Avenatti at the lectern now to address Judge Selna's tentative denial of his double jeopardy motion.

Says he disagrees with Selna's ruling and, "At a minimum, I think the court should hold an evidentiary hearing," Avenatti said. One point - footnote 6 in the tentative. Wants Selna to consider editing it before final ruling.

"I obviously take that extremely seriously," Avenatti says of foot note that says he misstated what prosecutors have released to him regarding the Tabs data.
Selna takes exception - says when he says something isn't accurate, "it's not a moral judgment."

Avenatti: "Understood, your honor, but again, I take this footnote extremely seriously because my candor to the court" is extremely important.
Selna: "It's not a question of candor; it's a question fo accuracy."

Avenatti says he was referring to Tabs computer files, not actual documents. Judge Selna says fine, the footnote isn't imperative to his ruling, and he'll delete it. "So we can move onto other subjects, then?" Selna says.

"Fair enough your honor. I wanted to explain the statements in the motion...With that, I would submit," Avenatti says.
Prosecutors have no argument, and Judge Selna says, "The tentative will be the order of the court, then." Now onto the state of the data release.

Selna doesn't seem to think the remaining server data is imperative to moving forward with the Nov. 2 retrial, but Avenatti is raising issues about Varani testifying during trial that everything had been indexed, when it actually wasn't, only a portion was.

"It should be very disturbing to the court that you've got a member of the Untied States government....that testifies in front of the jury that all of the servers were indexed, and that's what had to happen in order for them to be searched," Avenatti says. But that wasn't true.

"It appears a proper review was not conducted by the privilege-review team," Avenatti says. Avenatti going over concerns he's raised previously, says they're applicable now. "The fundamental problem is the government does not know what Brady is," Avenatti says.

Prosecutors think there's a materiality requirement with Brady, but Avenatti says case law clearly says there isn't. en.wikipedia.org/wiki/Brady_v._…

Avenatti is telling Judge Selna he needs extra time to review everything, says "It's an enormous amount of information." AUSA Fitzgerald says to clarify one technical point, some of the remaining data is graphic info, not files.

Avenatti says obviously he doesn't care about jpgs etc, but he says there are documents in there that could be potentially relevant. So they're all coming back next Tuesday at 8 a.m. for another status conference. AUSA Brett Sagel asks about jury selection for Nov. 2 retrial.

Judge Selna says the events he needs to make that decision haven't commenced yet. Jury selection could begin week of Oct. 26, but there's another trial scheduled. Dean Steward is defense counsel in that, and he tells Selna he think it's a go and will extend into week of Nov. 2.

"This case may have to trail for a day or two, but I'm going to leave it right where it is," Judge Selna says.
Sagel asks for a reciprocal discovery release deadline. Avenatti says, "We just got 20 terabytes of data..." But Selna cuts him off.

Judge Selna: "It is inconceivable, that every single document on every single server could be relevant to this case. It's absolutely inconceivable. I think we need to take a step back."

Avenatti says he agrees with overall point, but let's take a step back and remember it was the government that seized the entire servers, and they had obligation to look through everything. "Let's be clear, they failed."

Prosecutors said let's ask defendant to identify Brady "which is unheard of," Avenatti says. Avenatti: The problem is we have to determine what's relevant, what's Brady, and what we have to use at trial.

Judge Selna says he'll set a discovery deadline during next Tuesday's status. Avenatti mentions prosecutors' three motions in limine, including the one about Andrew Stolper. Avenatti wants more time to respond to the Stolper motion.

https://twitter.com/meghanncuniff/status/1443360544849727489

Avenatti wants until the 20th to reply to the Stolper motion; he says he needs to incorporate info from the servers that he says refutes some of the prosecutors' positions. Judge Selna gives him until the 18th. Prosecutors' reply to opposition is due 22nd.

And with that, they're done. Everyone filed out. I'll have a @lawdotcom article today on the double jeopardy ruling. Meanwhile, you can read all our previous coverage here: bit.ly/3znVccj

@threadreaderapp Unroll, please. Thank you! 🚀

Here's my @lawdotcom article on what happened in court today, adorned with another shot from last month's Judge Selna photo shoot. bit.ly/2ZR8YYZ

Avenatti today filed his opposition to prosecutors’ motion to limit his cross-examinations. “Indeed, such an order is frankly unheard of in a criminal case. And issuing such an order would constitute reversible error.” bit.ly/3BeLnPY

Here’s the motion Avenatti is opposing: bit.ly/3mmd2rT

Here’s Judge Selna’s final order rejecting Avenatti’s double jeopardy motion. Only change appears to be deleted footnote; chambers staff didn’t even fix typo on 2nd page. “Second, a Brady violating does not require an intentional violation.” bit.ly/3uSYAM1

And here’s the minute summary from today, complete with Ernie/Ernest the tech guy’s last name.

Update: I liked this morning’s courthouse photo so much I posted it to my Instagram. Check it out here. instagram.com/p/CUn_VuqpIPI/… 🙃 #Ididitforthegram