As He Sits In El Chapo’s Jail Cell, Michael Avenatti’s Many Court Woes Escalate

As He Sits In El Chapo’s Jail Cell, Michael Avenatti’s Many Court Woes Escalate

The wildest court filing was one on Friday by Michael Avenatti’s attorneys, who want to prevent the government from using Avenatti’s web history. You’ll never guess why.
Caroline Court
By

Michael Avenatti has had a busy last few weeks. First, he had his bail revoked in the California federal fraud case against him. The government claimed that while he was free on bail in that fraud case, Avenatti continued to engage in fraud.

Specifically, the government alleges that Avenatti received a $1 million fee as part of a settlement in one of his cases and engaged in a bunch of shenanigans to hide that money to prevent it from being seized to pay the many judgments against him. The government said Avenatti is in at least $21 million in debt to his former law partner, former clients, his wife, and the state of Washington. So to hide this newly received $1 million, Avenatti withdrew the money in cashier’s checks and then began flipping cashier’s checks to himself.

During his bail revocation hearing, the California federal judge found there is an ongoing danger that Avenatti will engage in similar conduct and that the danger is real and palpable. Avenatti was then remanded to jail and transported to New York for the Nike extortion trial that was supposed to begin on January 21.

The kicker? Avenatti was arrested in California during a break in his California Bar disciplinary proceeding. The best fiction writers in the world wouldn’t have come up with that!

This past Friday Avenatti arrived in New York and is currently housed in the Metropolitan Correctional Center (MCC). If that sounds familiar, it’s because that’s where Jeffrey Epstein was incarcerated and later killed himself (yes, he killed himself and was not murdered).

Like Epstein, Avenatti has also been placed in the Special Housing Unit. The SHU is extremely restrictive. The inmates are in their cells 23 hours a day. In a letter to the court last weekend, Avenatti’s lawyers begged the judge to order the Bureau of Prisons to release Avenatti from the SHU into general population. Avenatti’s lawyers also claimed that he is currently in the cell that once housed El Chapo. As of now, Avenatti is still in the SHU.

Judges usually defer to prison authorities on decisions pertaining to an inmate’s safety and well-being. To be honest, with his trial imminent, Avenatti is probably better off in the SHU, where it’s going to be a lot quieter than in general population.

There have been several additional court filings while all this has been going on. First, Avenatti has asked the court to compel the testimony of the attorney, Mark Geragos, who was with Avenatti when he allegedly extorted Nike’s attorneys. As I previously wrote, that may be a very risky move given that the government previously disclosed Geragos was concerned Avenatti had “crossed in line” in the meeting with Nike’s attorneys, and that Avenatti’s behavior may have become “extortionate.”

The parties also continue to fight over what evidence should be allowed at trial. Avenatti’s lawyers filed a motion to prevent the government from using 101 pages of Avenatti’s post-arrest tweets that comprise one of the government’s exhibits for trial. Avenatti’s lawyers paint him as the victim and argue that he had a right to publicly defend himself and attempt to clear his name after the government engineered a media onslaught against Avenatti on the day of his arrest.

Look, his lawyers have to play the cards they have been dealt, but it doesn’t take a genius—or even a lawyer—to know that tweeting about your pending criminal charges may not be a great idea. How Avenatti didn’t think his tweets might come back to hurt him is somewhat inconceivable. It takes a certain level of arrogance to behave in a manner than defies all norms.

Besides, I also couldn’t help but laugh, as I vividly remember Avenatti tweeting that he can’t stop, and won’t stop!

He even had advice for former NFL player Antonio Brown, which Avenatti probably should have heeded himself:

The wildest court filing, however, was one on Friday by Avenatti’s attorneys. First, his attorneys want to prevent the government from using Avenatti’s web history. Specifically, the letter provides that one of the government’s exhibits for trial includes the following:

  • Google search for “Nike put options” on March 10, 2019
  • A visit to the website Nasdaq.com – Nike, Inc. Option Chain on March 10, 2019
  • Google searches related to “insider trading” on March 10, 2019

Let’s back up. Avenatti is charged with attempting to extort Nike. In brief, during a recorded meeting on March 19, 2019, Avenatti told Nike’s attorneys that he would hold a press conference revealing potentially damaging information about Nike unless Nike agreed to either pay Avenatti and Geragos $15 million in fees for a purported internal investigation into Nike’s conduct, or make a one-time payment of $22.5 million to Avenatti. (As noted, Geragos became uncomfortable during the meeting and felt that Avenatti’s behavior may have become extortionate.)

So what does Avenatti’s search history have to do with the charges of extortion? While I won’t bore you with the intricate details of the options market, you would buy a put option if you think a particular stock is going to go down. Here, Avenatti likely felt that if Nike did not succumb to his demands and he held his press conference, Nike’s stock would take a hit. If he owned put options at a higher price, he could have made a fortune.

The government maintains this evidence is highly relevant, as it goes to Avenatti’s intent to benefit himself and shows that Avenatti acted deliberately, not rashly. Indeed, the government claims “it further demonstrates that the defendant’s focus, from the very beginning, was on himself, not his client.” Sure sounds like Avenatti.

Avenatti’s lawyers also want to be able to refer to former NFL player Colin Kaepernick during its case. Geragos, the other lawyer with Avenatti at the meeting, represented Kaepernick in connection with “sensitive” dealings with Nike. Avenatti wants the jury to know this. He believes it will help support his argument that he brought Geragos with him to meet with Nike’s attorney because he wanted them to know they would conduct a serious investigation.

The problem as I see it, however, is that Avenatti’s own words during the meeting lean more toward a shakedown than a legitimate business proposal. The court has yet to rule on these motions.

Jury selection begins today. As in the Harvey Weinstein case, the jurors will complete a juror questionnaire. A proposed questionnaire filed by the parties includes questions such as: “Before today, had you read, seen, or heard anything about criminal charges brought against Michael Avenatti?” and “Based on anything that you have read, seen, or heard about Mr. Avenatti, including anything about criminal charges against Mr. Avenatti, have you formed any opinions about Mr. Avenatti that might make it difficult for you to be a fair and impartial juror in this case?”

The questionnaire also asks about the potential jurors’ social media use, including whether they have a Twitter account. I am kind of surprised they didn’t ask if Avenatti has ever sent the potential juror an intimidating and nasty direct message on Twitter. If you’re not sure what I am referring to:

I previously wrote that chaos can be a defendant’s best friend. A confused jury may be more unlikely to find guilt beyond a reasonable doubt. If we’ve learned anything over the past two years, Avenatti knows how to bring the chaos.

@beyondreasdoubt is a criminal defense attorney in New York City. You can find her musings on Twitter.

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