Thread by @meghanncuniff

Here’s Avenatti’s opposition to prosecutors’ proposed supplemental jury instruction. “Absent additional requests for clarification, any jury instruction will be given undue weight, cause severe prejudice, and direct a verdict against the defendant.” bit.ly/332yiNO

If there ever were a sign of worried prosecutors, this proposed jury instruction would be it. Judge Furman said at the charging conference he’d “throw Mr. Avenatti a bone” regarding the good faith instruction. But prosecutors now seem to realize it misstated the law.

Too late? After basically re-reading the good faith instruction yesterday sans one small change, Furman took the highly unusual step of inviting the jury to contact the court if they needed more clarification. Can he then on his own offer more clarity unless they request?

Also, Avenatti (and prosecutors) based closing arguments on instructions that didn’t include this one.
I haven’t seen a judge say so much to a deliberating jury, particularly about seeking more clarity. (He also told them to be patient because the transcripts will take time.)

One federal judge I covered in Orange County wouldn’t even give an Allen charge because he feared forcing a verdict. He’d declare a mistrial upon first announcement of a deadlock. (Others read them, but this offer to provide more clarity seems unheard of.)

Prosecutors seem to be concerned they didn’t make clear a crucial point: Even if Avenatti believed in good faith he was owed Stormy’s money, lying to her about it after he took it constitutes a scheme to defraud because it deprived her of the ability to challenge his claim to it.

Prosecutors seem to be concerned they didn’t make clear a crucial point: Even if Avenatti believed in good faith he was due Stormy’s money, lying to her about it after he took it constitutes a scheme to defraud because it deprived her of the chance to challenge his claim to it.

Avenatti said in his closing he should have communicated better with Stormy and he takes responsibility, but Furman sustained prosecutors’ objection, so the exchange won’t even be part of the jury transcript. And prosecutors didn’t mention it in rebuttal as basically a confession

https://twitter.com/meghanncuniff/status/1489047573935661059

Judge Furman said outside the jury yesterday that there really is no dispute Avenatti lied to Stormy about the money. But again, prosecutors appear concerned they didn’t drive home that point well enough. Hence this new proposed instruction.

As I’ve said before, the Avenatti prosecutors in California and New York have long disagreed on this multi-jurisdiction prosecution. On the one hand, SDNY prosecutors managed to avoid the Tabs billing issue that led to the California mistrial.

On the other hand, this Manhattan jury has no idea what else Avenatti was up to in 2018, and the five other clients @USAO_LosAngeles prosecutors say he was victimizing for much larger sums of money than Stormy.

Some of Stormy’s book money was sent to Geoff Johnson, one of the clients in the California case, but jurors of course never heard that because SDNY prosecutors focused only on Stormy and wouldn’t let @usao_losangeles have it as part of the wire fraud case there.

If you’re trying to establish a scheme to defraud and a prove fraudulent intent, it seems like it might have been helpful to tell the jury the full scope of what was going on. But again, SDNY kept the Tabs issue out (though it’ll come up on appeal if there is one).

And here’s Judge Furman’s denial of prosecutors’ proposed supplemental instruction. “The Court is open to clarifying the issue if the jury indicates that it is deadlocked or requests further clarification on the issue of good faith.”

Latest jury notes says there’s a single holdout refusing to look at evidence. Judge Furman read another Allen charge and an instruction about needing to deliberate, and included a line about the burden of proof. He denied Avenatti’s request for a mistrial.

Note said, “We have one juror who is refusing to look at evidence” and is acting on emotion. “Not going on evidence. All emotions and is not understanding” the duties of his jury. “Please help us move forward” with please underlined.

Avenatti told Furman the jury is obviously deadlocked and he should declare a mistrial. But Furman suggested telling the jury that if they keep deliberating and have this problem they should ID he juror in question in another note.

Issue is, is it a refusal to deliberate by this juror, or is it a firmly held belief? AUSA pointed to fact that jury deadlocked after just 4 1/2 hours as a sign refusal to deliberate is not new.

Avenatti said if the holdout juror has reached a conclusion, “She doesn’t have to explain that conclusion to anyone. She doesn’t have to justify that conclusion to anyone.”
Avenatti said there’s no basis to try to single out and coerce the juror.

Avenatti told Furman the juror “exceeded that very right that you told the juror she had” when the judge instructed them it’s ok to fail to agree if it’s an honest belief.
“It’s obvious this jury is deadlocked. Any further instruction to the jury would be coercive and improper.”

Furman agreed to not ask about the juror’s identity. He said it could turn out the juror does have a firmly held belief “in which case we might be in mistrial territory.”

Avenatti said it’s “highly prejudicial” to basically try to convince a holdout for acquittal to join the majority for conviction, but Furman told Avenatti, “For all I know 11 jurors are for acquittal and the one allegedly being swayed by emotion is for conviction.”

Jury came in to hear the instructions and it was impossible to tell who the hold out is. Maybe the woman in the green shirt judging by her body language? I don’t know. Each juror is getting a print out of the three instructions Furman read.

Judge Furman also denied Avenatti’s mistrial motion over Stormy Daniels’ @CNN interview this morning. Here’s Avenatti’s filing.

Furman said there’s no indication jurors are aware of the interview, and “moreover there’s no order in this case” preventing witnesses from saying anything. Still, the judge urged prosecutors to make sure Stormy “is aware of the sensitivities involved with a deliberating jury.”

Prosecutors noted that Avenatti makes comments to the press every day as he leaves the courthouse. “I don’t think those are any better.”
Furman reminded them of SDNY local rule 23.1. bit.ly/3op8geO

Avenatti said he’s never violated 23.1, any suggestion by prosecutors otherwise is wrong. He said Stormy’s interview this morning was “outrageous” and said nobody he’s talked to “has ever seen anything like it.” Avenatti said he declares his innocence but doesn’t discuss evidence

“Last time I checked, the First Amendment allows me to do just that,” Avenatti said.
Judge Furman said he hasn’t seen Avenatti’s interviews, but he watched Stormy’s @CNN interview “after it was brought to my attention this morning.”

Here’s the case they cited in court in which a juror was removed from deliberations. bit.ly/3AZPQGJ

Avid followers of my Twitter feed will remember a situation with a juror during deliberation in the federal maritime murder trial in the Central District of California in December.

https://twitter.com/meghanncuniff/status/1469054287296688128

Central District of course operates under 9th Circuit precedent while SDNY is 2nd Circuit, so controlling cases differ. When the maritime murder jury complained about a holdout, courtroom discussion was how jurors can’t be removed if they’re being pressured to change their views.

The maritime murder holdout juror was brought into court asked individually by Judge Carter, no other jurors present, if she wanted out of deliberations because she was being pressured to change her views. This is after she wrote a note herself.

But once she said yes, I feel pressure to change my views, that was it, she couldn’t be dismissed. Judge told her to keep deliberating. A couple hours later, she sends a note saying she’s considering harming herself to get out of the proceedings.

This was basically the collective reaction of the courtroom when the CA judge back in December read the note aloud about juror considering self harm —> 😳.
I saw court clerk and her deputy share an “OMG” look. The mood totally changed and even the defense agreed to dismiss her.

Worth noting that after the holdout juror in the maritime murder trial was replaced with a @packers-jacket wearing alternate, the jury swiftly returned convictions for the most serious charges.

https://twitter.com/meghanncuniff/status/1469419632738119683

It’s unclear to me what Judge Furman’s approach would be to determining if juror has a true belief or is just refusing to cooperate. The judge did say that while he rejected prosecutors’ request for a supplement instruction, he’s open to one later if this continues.

Furman said it may well be that additional instruction for further clarity is appropriate but right now, that’s “somewhere between too late and premature.”

Again, I know a (now-retired) federal judge in California who refused to even read an Allen charge to a jury because he worries about coercing a verdict. It’s really interesting to see the totally different approach here from Judge Furman.

Here’s Stormy’s @CNN interview. As I’ve said before, the $300k figure being *widely* reported is wrong. Stormy’s 3rd payment was $148,750. Her 2nd payment was for the same mount, but Avenatti covered it with a loan from Mark Geragos. So the dollar amount in this case is $148,750.

https://twitter.com/NewDay/status/1489642230365278211

The dollar amount really isn’t an issue in defending guilty or not guilty re: wire fraud, but if the jury does end up convicting, the dollar amount matters a great deal at sentencing.

One courthouse observation: I was able to sit in the courtroom for some of the Palin v. @nytimes trial today, and Senior U.S. District Judge Jed Rakoff verbally wrecked the NYT attorneys for not objecting to an exhibit yesterday, then bringing an objection this morning.

I didn’t catch what the exhibit was, but Rakoff said it’s irrelevant and highly prejudicial and it shouldn’t be in evidence, but because the lawyers didn’t timely object, he’s not going to exclude it.

Judge Rakoff said prosecutors didn’t make an objection, and it’s not his job to make objections for them. This is exactly two floors down from the Avenatti trial courtroom, where Judge Furman will say “sustained” when there is no objection. I wonder what Rakoff thinks about that?

And we’ve got our verdict.

https://twitter.com/klasfeldreports/status/1489687493834416133

So guilty on both counts, and Avenatti agreed to surrender to the Marshals in the Central District of California by 5 pm Monday.

Avenatti wouldn’t say why he agreed to surrender. He stayed in the courtroom for a few minutes with standby counsel, then went into a conference room before coming out to the hallway and briefly speaking to reporters. His body looked clenched up. Very angry.

Avenatti told reporters, “I’m going to make this very short” and to the point and said: “I’m very disappointed in the jury’s verdict. I am looking forward to a full adjudication” through an appeal.

Asked if he regretted representing himself, Avenatti said that’s one question he’ll answer and said, “No, not at all.”

Judge Furman scheduled Avenatti’s sentencing for May 24. Prosecutors will contact Stormy Daniels about a victim impact statement. “We think it is very likely that she’ll wish to speak” and submit a statement, prosecutor said.

Regarding the May 24 at 3:55 pm sentencing, Avenatti said, “Your Honor, I’m not opposed to this date at that time.”

Avenatti didn’t answer questions from reporters about why he agreed to surrender in Southern California by 5 pm on Monday. Prosecutor told Furman in court, “We’re comfortable with him staying out till that time but no later.”

Oops - regarding above tweet. Sentencing is May 24 at 3:45, not 3:55. Avenatti mentioned a potential conflict with California retrial but said that’s unclear because of the pending 9th Circuit appeal. (Oral arguments is March 10; his reply brief is due this Monday.)

“We’re available, Your Honor. We think that date works,” prosecutor said. (I think it was AUSA Robert Sobelman, but they have their backs to me so it’s really hard to tell who’s talking and I don’t recognize their voices yet. Other AUSAs are Matthew Podolsky and Andrew Rohrbach.)

Judge Furman said he won’t let the sentencing interfere with any retrial in the Central District.
Also, Furman said neither side is to contact jurors without notifying each other and getting Furman’s permission.

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