United States v. Avenatti
Decision Date | 06 July 2021 |
Docket Number | (S1) 19 Cr. 373 (PGG) |
Parties | UNITED STATES OF AMERICA, v. MICHAEL AVENATTI, Defendant. |
Court | U.S. District Court — Southern District of New York |
Michael Avenatti is charged in the (S1) Indictment with transmitting interstate communications with intent to extort, in violation of 18 U.S.C. § 875(d)(Count One);Hobbs Act extortion in violation of 18 U.S.C. § 1951(Count Two); and honest services wire fraud, in violation of 18 U.S.C. §§ 1343and1346(Count Three).The Government charges that Avenatti - who is licensed to practice law in California - transmitted in interstate commerce threats “to cause financial harm to Nike and its reputation if Nike did not agree to make multimillion dollar payments to Avenatti”; “used threats of economic and reputational harm in an attempt to obtain multimillion dollar payments from Nike”; and used interstate communications to “engage[] in a scheme to obtain payments for himself from Nike based on confidential information provided to Avenatti by [client Gary Franklin] for the purpose of furthering Avenatti's representation of [Franklin] without [Franklin]'s knowledge or approval, ” thereby depriving Franklin of the “duty of honest services”he was owed.((S1)Indictment(Dkt. No. 72) ¶¶ 20, 22, 24(emphasis omitted))
Avenatti proceeded to trial on January 27, 2020.After a three-week trial, on February 14, 2020, the jury returned a verdict finding Avenatti guilty on all counts.(Verdict (Dkt. No 265))
Avenatti has moved for a judgment of acquittal or a new trial pursuant to Rules 29and33 of the Federal Rules of Criminal Procedure.(Def. Mot. (Dkt. No. 291))Avenatti argues that (1) the evidence at trial is insufficient to prove that he acted “wrongfully” and with “intent to defraud”; and (2)the statutes under which he was convicted are unconstitutionally vague-as-applied.(Id. at 24-31)[1] Avenatti also contends that this Court erred in (1) excluding certain text messages and emails; and (2) responding to a jury note regarding permissible inferences from exhibits admitted to show state of mind.(Id. at 32-40)
In a June 4, 2021 letter, Avenatti moves to compel the Government to produce Section 3500 material and alleged Brady/Giglio material concerning Judy Regnier, a Government witness at trial.In a July 5, 2021 letter, Avenatti moves for a new trial on the same basis.(July5, 2021 Def. Ltr. (Dkt. No. 333))In his June 4, 2021 letter, Avenatti also raises concerns regarding press access to voir dire.(June4, 2021 Def. Ltr. (Dkt. No. 315))
For the reasons stated below, Avenatti's post-trial motions will be denied.
I.THE EVIDENCE AT TRIAL
(Tr. 1534)Franklin told Auerbach that he wanted DeBose and James investigated and fired.(Tr. 770, 1648)
On February 6, 2019, Auerbach - acting on behalf of Franklin - contacted John Slusher, a senior executive at Nike.(Tr. 767-68, 893, 1533-34; GX 304)Auerbach presented Franklin's complaints about DeBose and James - and the loss of the Nike sponsorship - to Slusher.Slusher referred Auerbach and Franklin to Nike's outside counsel - Andrew Michaelson at the law firm Boies Schiller Flexner.(Tr. 745, 765-66, 771-73, 786; GX 304)During his call with Slusher, Auerbach did not suggest that he and Franklin were planning on calling a press conference, nor did he suggest that Nike pursue an internal investigation.(Tr. 745-46, 771)
After Auerbach's phone conversation with Slusher, Franklin felt that it was necessary for him to retain an attorney, in part because Slusher had referred Auerbach and Franklin to Nike's outside counsel.(Tr. 901, 1536)
(Tr. 715)
Neither Auerbach nor Avenatti mentioned the possibility of holding a press conference or of pressuring Nike to conduct an internal investigation.According to Auerbach, a press conference “would be damaging and detrimental to reaching Gary's goals, ” which included reestablishing his relationship with Nike.As to an internal investigation, Auerbach testified that “Gary knew what happened and he didn't need an internal investigation.”Avenatti did not suggest that a resolution of Franklin's dispute with Nike might include Nike making payments to Avenatti.(Tr. 717-18)
After the call, Auerbach sent Avenatti an email...
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