Thread by @meghanncuniff

It’s Friday in Orange County, California, and I’m here at the federal courthouse for what likely will be a brief status conference in Michael Avenatti’s wire fraud case. Follow this thread for updates from Senior U.S. District Judge James Selna’s courtroom. ⚖️🧵⚖️

I got here early, so I walked a little extra to bring you that new angle of the marble tower that is the Ronald Reagan Federal Building and Courthouse. Fun fact: @USGSA imported marble from Italy to build this place, and officials traveled to Italy a couple times in the process.

Judge Selna scheduled this status yesterday afternoon. No word on the specific topic, but it follows briefs on whether he has jurisdiction with the pending 9th Circuit appeal.

https://twitter.com/meghanncuniff/status/1448727323184812059

Conference is at 9, so in about five minutes. It's over the phone but also in person, with Avenatti's standby counsel Dean Steward already in the courtroom. There is no public call in number after too many people flooded the last call. So I'm here in court to listen.

AUSA Brett Sagel walked in the courtroom right as the clerk was getting AUSA Alex Wyman on the line, and Wyman said Sagel will be joining in person.
"He just walked in," the clerk says.
"I'm sorry for you," Wyman says.

*phone beeped *
"Who just joined the call?" clerk asks.
"This is Mr. Avenatti. Good morning."
Standby counsel Courtney Cummings Cefali and @USTreasury Special Agent Remoun Karlous also are on the line.

Judge Selna just vacated Michael Avenatti's Nov. 2 retrial date and all pending motions, citing Avenatti's pending 9th Circuit appeal of Selna's rejection of his double jeopardy motion. The judge says the notice of appeal means he's divested of jurisdiction.

“Double jeopardy is a unique issue that makes it appropriate for an interlocutory appeal.” He says that’s “fairly clear in the case law.” Only exception is if trial judge ruled the motion frivolous, which Selna says he hasn’t done, “and I’m unable to make such a finding now.”

"I found a Brady violation with respect to a very important range of documents related to the financial affairs of Mr. Avenatti’s firm. I think that conclusion alone would indicate that the appeal is not frivolous," Judge Selna says.

“Mr. Avenatti raises a number of other issues besides the financial data according to his argument,” Selna continues. The judge says there’s also “a substantial question” as to what the term ‘goading’ means.

Judge Selna's order on the double jeopardy motion rejected Avenatti’s assertion that prosecutors goaded him into the mistrial, but “other courts have interpreted the term ‘goading’ more extensively,’” the judge says.

"Accordingly, given the Brady violation that the court found and the somewhat indeterminate definition of the term ‘goading,’ I find that the appeal is not frivolous," Judge Selna says.

Selna said he’s staying all pre-trial motions and will return to them when jurisdiction is restored to his court “if jurisdiction is restored to this court.”

But while the appeal is pending, “I believe that I still have jurisdiction to consider non-substantive matters that do no affect in any way the notice of appeal and the issues raised by Mr. Avenatti on appeal,” the judge says.

With that, they’re now discussing prosecutors’ motion to enlist the @Tabs3software makers to help them access Avenatti’s Tabs files. Avenatti is objecting to them having “unfettered access” to other client files.

OK this wrapped up about five minutes ago, but here's a catch up on the Tabs talk. Selna started off by saying he was going to quash the subpoena for the @Tabs3Software makers, because subpoenas aren't meant to secure outside government assistance.

The judge also said it could be a violation of attorney-work client privilege to compel the @Tabs3Software tech company to release information regarding Avenatti's law firm servers.

AUSA Sagel says the company said "they do not mind cooperating, they do not want to be on the end of litigation form the defendant so they need the court's order to give them coverage." Selna asks if they're consultants to Avenatti. Avenatti says they did when his firm used Tabs.

Sagel says of @Tabs3Software makers: "They just want coverage for themselves so that they're not, even if it's a frivolous civil suit later, they're not subjecting themselves to that by providing just the technical assistance."

"We're just trying to comply with what your honor wants," Sagel says. Prosecutors can't look at the Tabs thumb drive data provided to defendant because they don't have the old software that fits it. That's why they need the company's help.

Sagel says the Tabs data may include other clients but "We’re not looking in those files and have no intention of looking in those files." There are five clients to look for (Johnson, Barela, Gardner, Phan and Tran) "and from what we can tell, we’re only going to find three.)"

Avenatti says prosecutors are seeking "unfettered access" to all the client data, and Selna says, "Sir, that's inaccurate." Avenatti: "No, no, let me just." Selna: "Just a minute." Asks if Avenatti is saying prosecutors actually want data for other clients, too.

Avenatti says yes, he is saying that. He doesn't believe it's legal for prosecutors to have access to all that client data beyond the five clients listed as victims in his case, especially when those clients haven't been notified.

Avenatti suggests prosecutors review data under the supervision of @TheJusticeDept's privilege-review team. "And frankly I'm surprised it hasn't already been done."

Judge Selna asks if he's saying they don't actually needs @Tabs3Software makers help. Avenatti says yes, because data is already available through the privilege-review team.

Avenatti says he's fine with Tabs makers helping prosecutors capture only the data for the five clients, and finally we get an agreement. Sagel says, "That's all we ever wanted." Selna requests them to submit a proposed order.

And they end with Selna telling everyone to keep on the data disclosure. Sagel says it was never a doubt about that, it's just a question of how fast the indexing can happen.

Judge says he'll review status of production as soon as he gets jurisdiction back, if he does, and they'll be proceeding to the retrial "very promptly." "I can't tell you what that date is;..but once I get jurisdiction, we're going to move."
Avenatti: "Understood, your honor."

Thread broke, continues here:

https://twitter.com/meghanncuniff/status/1449047112218337284

I'm working on a @lawdotcom article now, but in the meantime you can catch up on all our coverage here: bit.ly/3znVccj

Well now - we have some action from the 9th Circuit already. Not even 45 minutes ago, they agreed to prosecutors' expedited (very expedited!) briefing schedule. Avenatti has a week to reply to the motion, and prosecutors' reply is due four days later on the 26th.

Here's the motion Avenatti now has a week to respond to. It asks the 9th Circuit to dismiss Avenatti's appeal as frivolous or summarily affirm Judge Selna's rejection of his double jeopardy motion, and it cites Nov. 2 trial as a reason for swift action. bit.ly/3oWXEFn

I should add it’s not just prosecutors’ proposed briefing schedule that the 9th adopted - Avenatti also agreed to this briefing schedule as the entry states.

Here’s my @lawdotcom article on today’s happenings: With Appeal Looming, Judge Vacates Avenatti's Retrial Date as 9th Circuit Expedites Briefing bit.ly/3j4lHy8