Thread by @meghanncuniff

Here's motion to quash from Drum, @analysisgroup expert @USAO_LosAngeles hired for California trial: "Avenatti understands Mr. Drum lives and works in Denver, Colorado and could not, under
any circumstances, appear before this Court on a moment’s notice." bit.ly/35s2liz

After Furman said the witnesses won't testify if they're not here tomorrow, Avenatti said "your honor, you're not suggesting that it's optional" to comply with a valid subpoenas. Avenatti said he wants to avoid witnesses thinking it's optional like what happened this weekend.

Judge Furman said Loupe withdrew his motion to quash, so if he doesn't show he's subject to penalties, "but like I said, if he's not here, i don't anticipate that he will testify."

Regarding David Karbley, Stormy's former bus driver, Avenatti said he'll testify about communications in which Stormy said she was not owed any money under the book deal, and prosecutors were pretty dubious about that claim.

AUSA said it's a sideshow "which is frankly why Mr. Avenatti wants to call him to begin with." Avenatti said he wasn't here to debate the court. "It's a critical issue in this case. I don't think it's cumulative," Avenatti told Furman.

So Judge Furman is going to let Karbley testify if he's there tomorrow morning, because credibility issues about his claims can be addressed in prosecutors' cross-examination and aren't a reason to exclude him.

Carlos Colorado's subpoena involved a big talk about Avenatti's argument that he should be able to use California's quantum meruit attorney compensation theory as a defense to the jury, which always sparks noteworthy quotes from the judge.

Judge Furman told Avenatti even if quantum meruit could justify Avenatti getting paid something from Stormy's book money, he knows of "no quantum meruit theory would justify the false representations you made to secure it."

The judge kept saying it depends on if Avenatti testifies. If he takes the stand and says he thought he was entitled to the money under quantum meruit, then it becomes a defense theory. Until then, there's nothing on the record to support it.

Avenatti said Carlos Colorado's testimony would support the quantum meruit compensation theory because Colorado knows all about the work done for Stormy.
"I wasn't running @SkaddenArps. This was a relatively small law firm," Avenatti said. Everyone knew about the case.

"This was a big client. This was a big deal to the firm," Avenatti told Judge Furman.
Avenatti said the law is clear in California is that under a reasonable compensation agreement, he was due some of Stormy's book money under quantum meruit, but the judge just wasn't swayed.

"You were not entitled to take this money without telling Ms. Daniels," Judge Furman told Avenatti.

Avenatti took issue with Furman saying he can't present quantum meruit as a defense theory unless he testifies in his own defense, "especially when it's the law." But Furman said "this is a matter of your intent and good faith."

Regarding Avenatti's trying to call as a witness JD Barrale, Judge Furman granted the motion to quash, calling it "just a sideshow I'm not going to permit the case to go into." Avenatti said the dispute with Barrale involved Stormy, not just her ex.

But Furman said no way. (Barrale's counsel filed this letter today, which Furman referenced in court and it made me really miss the OC courthouse where I'd be sitting there with my laptop pulling it up on PACER as he said that instead of three hours later.)

Regarding Avenatti wanting to recall Luke Janklow of @janklownesbit, he is incensed about prosecutors eliciting testimony about his shortcomings on PR for Stormy's book. "The entire idea that I was to blame for the lack of book sales is completely fabricated," Avenatti said.

Avenatti said Elizabeth Beier of @StMartinsPress falsely blamed him, and he launched into how everybody was supposed to get paid, Janklow "was supposed to get paid", publishers "everybody was supposed to get paid but Michael Avenatti has to do everything and he doesn't get paid"

Avenatti acknowledged to Judge Furman that rant was argument after he finished. Furman then noted that Avenatti DID get paid - he took a 2.5 percent commission"without disclosing to Ms. Daniels" he was doing so.

Judge Furman said the falsity Avenatti says he's trying to expose shouldn't be that they were upset with his publicity, it's that it was a reason for withholding payment.

Publishers said they were considering withholding the 4th payment. But they never did - Stormy got that money after she and Avenatti parted ways and she hired Clark Brewster (@cbrew1). It's the 3rd payment he's charged with stealing, and Stormy to this day has never gotten it.

Avenatti said "I was shocked that they called this woman to blame me" for lack of book publicity, referring to Beier's testimony, which ended this morning. AUSA Matthew Podolsky said the relevance of this is "approaching zero."

This all led to another memorable Judge Furman quote. "Mr. Avenatti, you have a tendency to just lump 20 things together in one effort to throw spaghetti at the wall and see what sticks," the judge said.

But Avenatti went to bat for recalling Janklow, saying he can directly refute Beier's testimony. Judge Furman said "I don't know how you can possibly say with a straight face" you didn't realize significance of testimony about his work on the book PR until Beier took the stand.

Avenatti brought up that Janklow's cross was ended early by Judge Furman, back before he went pro se and SDNY federal defender Andrew Dalack handled the cross. Furman said he warned Dalack seven times to stop wasting time. "I like Mr. Dalack a lot. He's an excellent attorney."

Avenatti said the issue of Avenatti's PR work out would have been brought out more in cross of Janklow if Furman hadn't ended it early.
"That seems to be contradicting the argument you made 30 seconds ago," the judge said, regarding Beier's testimony forcing the issue.

Furman got really fired up and started talking fast explaining Avenatti's contradiction before he slowed himself down: "Sorry, I'm getting a little heated."
"It seems to me you're a little wiggly here," Furman said.
"Well, your honor, I don't mean to be wiggly," Avenatti said.

AUSA said Avenatti was confusing the timeline and his argument "was just a complete misdirection." Judge Furman said any more testimony about book publicity would cumulative under the Federal Rules of Evidence, calling it "straight up 403." bit.ly/3HgJEww

"My point is I want to prevent you from causing confusion to the jury," Judge Furman told Avenatti, saying he's seen him inject stuff to purposely confuse the jury.
"I've sustained more objections in this trial than I've sustained in any trial as judge or counsel," Furman said.

Judge Furman told Avenatti he's "policed vigorously to keep a focus on what this case is about."
The trial is not about the publicity of Stormy's book. "It's about whether you committed fraud," the judge told Avenatti. He used the term "a rabbit hole of irrelevancy."

Furman also said another @StMartinsPress employee Avenatti served this morning through Elizabeth Beier's attorney is not testifying.
Two other Avenatti witnesses, Denver Nicks and Glendon Crain, haven't yet been served with subpoenas.

Avenatti again brought up Furman ending Dalack's cross of Janklow, which led AUSA Podolsky to assure the judge, "We're absolutely comfortable defending your honor's decision should there be an appeal in this case."

Avenatti said the cross of Janklow was shorter than direct, but Judge Furman said "I'm not even sure that's accurate." Podolsky corrected: Direct of Janklow was 2 hours, Dalack's cross was at 2 1/2 hours when Furman shut it down.

"Your honor, I was informed that the cross was less than direct," Avenatti said, invoking his standby counsel. If it wasn't, "I'm sorry about that."

Then there was a broader discussion about quantum meruit, as opposed to the discussion in relation to quashing the Carlos Colorado subpoena I tweeted about earlier. Judge Furman said Avenatti's submissions on the issue "have not been helpful."

https://twitter.com/meghanncuniff/status/1488003958639673345

"Your submission just told me what quantum meruit is," Judge Furman said.
But again, he said if Aveantti genuinely believes he was entitled to take the money "despite graduating 1st at @GWLaw" and the jury believes him, it may be a valid defense. But he has to testify.

Avenatti said, "I haven't decided yet" regarding whether he'll testify, "I don't think it's contingent upon me testifying." Furman asked if he has case authority that says he's entitled under quantum meruit to take client money without telling the client.

"You're doing what I said before. It's a classic case of misdirection," Furman told Avenatti. He again asked where the law "allows a lawyer to engage in that kind of self help."
(Here's prosecutors' brief on quantom meruit: bit.ly/3ALzYYl)

Avenatti said under Furman's view, a defendant can only present quantom meruit as a defense through their own testimony. The judge said unless there's evidence in the record that shows a good faith belief. He said the law is sound on that.

Then things got a little testy, when Judge Furman said if Avenatti does take the stand, this colloquy they just had about quantum meruit "and his failure as he sit here" to explain it could be fair game for prosecutors to introduce the discussion to jurors.

Judge Furman said the possibility that the discussion he was having with Avenatti at that very moment could be used against him (!) "certainly underscores the pit falls of representing oneself," and Avenatti winced a bit and said, "You know, your honor. I have to object."

Avenatti said as we've seen last week, "the government is more than capable of prosecuting me." Judge Furman replied that it's his job to flag issues that could be on the horizon, and that's what he was doing here, and there's no basis for his objection.

Furman brought up prosecutors' plans for the Nike convictions and California case if Avenatti testifies, and Avenati said, "At this point in time I'm not intending on testifying." But Furman said let's have the discussion anyway just to address it.

The judge said the law clearly allows questions about the cases because it goes to Avenatti's propensity for honesty as a testifying witness. Avenatti said he doesn't believe the Nike case "is admissible pending appeal and a motion for new trial." But Furman wasn't swayed.

Avenatti tried to bring up the firm server and Tabs stuff from the California mistrial, and Furman immediately shut him down. "I don't want to hear about that," the judge said, and he's had it since September.

Judge Furman cited a ruling by Judge Gardephe in Avenatti's Nike case regarding the admissibility of outside cases if Avenatti took the stand. "I agree wholeheartedly with Judge Gardephe and read his ruling."

So regarding Avenatti's witnesses, he's got limited options with Justin Loupe and David Karbley. Denver Nicks and Glendon Krane if he can get them subpoenaed and in New York by tomorrow morning. And then Furman hasn't yet ruled on Richard Marshack and John Drum.

Judge Furman said the up to six defense witnesses are likely to testify tomorrow, then he'll dismiss then jury, thy'll finalize the charging document and jury instructions in a "charging conference," then they'll do closings on Wednesday and give it to the jury.

Here's Avenatti's response to Richard Marshack and John Drum's motions to quash subpoenas. He said Marshack can testify via Zoom, and he said the fact that the bankruptcy court rejected Marshack's request to comply with the subpoena is irrelevant. bit.ly/35xGIxn

Prosecutors' support for motions to quash: "To the extent the defendant wishes to delve into the details of those bankruptcy proceedings, such testimony would be irrelevant and would risk confusing the issues, misleading the jury, and wasting time." bit.ly/3IMSm5Q

And here's Judge Furman's denial of Avenatti's motion to compel Marshack and Drum's testimony and his granting of their motions to quash. That leaves four potential witnesses for Avenatti in NYC tomorrow.

Regarding Furman’s quote about CLE credit and bar standing, he didn’t comment directly to Avenatti, he said in a broader context he can assure you just because someone is in good bar standing with up-to-date CLE requirements doesn’t mean they know the law.

Here’s Judge Furman’s order granting JD Barrale and Carlos Colorado motions to quash, which includes the actual motions. bit.ly/3GgTVYd

And here’s Avenatti’s new motion to exclude a prosecution exhibit introduced by the last witness, the summary witness Shamel Madreno of the SDNY U.S Attorney’s Office, because it was created by the case agent and not him. bit.ly/3ueavW6

Furman shot this down pretty quick when Avenatti brought it up in court, saying the law is clear that the witness doesn’t have to have made the exhibit so long as they can lay a foundation for it.

@threadreaderapp Unroll, please. Thank you! 🚀

Oh, regarding one of the witnesses Judge Furman won't allow, JD Barrale, Avenatti accidentally referred to him in court once today as Barela, as in Greg Barela one of the clients in the California fraud case. He quickly corrected himself. "Barrale. Not Barela," Avenatti said.

That was quick: Judge Furman denied Avenatti’s request to exclude the prosecution summary witness exhibit tonight. (The judge said today when Avenatti said he planned to file one that he would be fighting an uphill battle.)