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By Matthew Russell Lee, Patreon, thread video

SDNY COURTHOUSE, Jan 18 – Michael Avenatti in the Nike case against him opposed the US Attorney's proffered legal expert testimony about his fiduciary duty, citing decisions by U.S. District Court for the Southern District of New York Judges Valerie E. Caproni and Kimba Wood, below.
 
   After Avenatti was arrested in California on sealed charges of violating the terms of his release on bail, SDNY Judge Paul G. Gardephe ordered him brought to the SDNY to face trial. And now on January 18 this from the US Attorney's Office: "Gary Franklin, and Jeffrey Auerbach ask the Court to quash in part the defendant’s trial subpoenas to Franklin and Auerbach... The defendant does not even attempt to provide a theory of admissibility for what he seeks. Instead, he relies solely on speculation that Franklin and Auerbach both (1) have communicated by text message and/or email regarding the defendant between March 25, 2019 and December 27, 2019, and (2) those communications contain statements that will be materially inconsistent with their testimony at trial or somehow otherwise admissible. (See Joint Ltr. 4-5.)

The former assumption is just that; it is based entirely on the defendant’s review of telephone call records for a six-day period immediately after the defendant’s arrest that he says show “frequent extended telephone calls between the two” (Joint Ltr. 4)—not text messages or emails, which is what the defendant seeks, and not records for the entire, or even most, of the period covered by the defendant’s subpoena. In support of the latter assumption, the defendant offers nothing. The defendant’s subpoena should be quashed with respect to this category of materials."

  In the run up to the trial, Avenatti on January 12 asked Judge Gardephe to exclude all "late produced discovery" the government has provided, or to extend the trial date for 30 days.

  Late on January 14, the US Attorney's Office formalized that it joins with NIKE: "Re: United States v. Michael Avenatti, 19 Cr. 373 (PGG) Dear Judge Gardephe: The Government respectfully writes in response to the motion of NIKE, Inc. (“Nike”) to quash the defendant’s seven subpoenas for Nike employees (Dkt No. 114), a motion that is now fully briefed. The Government joins in Nike’s motion.1  As Nike explains in its opening and reply briefs, the testimony of these witnesses, who never spoke with the defendant (or his client), does not have any probative value with respect to any fact to be determined by the jury. See United States v. Jackson, 196 F.3d 383, 387 (2d Cir. 1999); United States v. Jackson, 180 F.3d 55, 66, 71 (2d Cir. 1999). Nor is the “motive” of Nike (Dkt. No. 131, at 10), as an entity, relevant. The only conceivably proper purpose in calling these seven witnesses would be to attempt to demonstrate the alleged bias of other witnesses, who do have relevant and admissible testimony, through extrinsic evidence, except that (1) testimony that certain payments were allegedly made to amateur players or their families has vanishing little, if any, independent value in demonstrating the alleged bias of any witness with relevant and admissible testimony; and (2) the witnesses whose alleged bias the defendant seeks to demonstrate are lawyers, and the seven witnesses sought by the defendant are expected to invoke attorneyclient privilege if asked what they told lawyers or what they were told in return. In any event, it would be exceedingly difficult, at best, for a lay juror to assess properly any evidence of alleged misconduct of certain persons, purportedly offered solely to show the alleged bias of other persons, rather than to be confused and distracted by the defendant’s repeated invocation of alleged “corruption” (Dkt. No. 131, at 3, 4, 5, 7, 8, 9, 11, 12, 15, 18, 19), having nothing do with this case. Cf. United States v. Gupta, 747 F. 3d 111, 132 (2d Cir. 2013) (Rule 403  1 The Government has independent standing to move to quash such subpoenas, see, e.g., United States v. Giampa, No. 92 Cr. 437 (PKL), 1992 WL 296440, at *1-2 (S.D.N.Y. Oct. 7, 1992)...  the defendant’s effort to challenge the credibility of pertinent witnesses in this manner would be of particularly dubious value given that the bulk of what they will testify about concerns calls and meetings that were recorded, and that one non-recorded meeting tracks those recordings. Moreover, were the defendant to ask the jury to infer that certain witnesses might be coloring their testimony to please the Government, because other people, at other times, may have engaged in misconduct of some kind, the Government would have no choice but to rebut that requested inference, which is highly misleading. That would require, among other things, the presentation of evidence concerning how a corporation responds to a subpoena, including through formal and informal conversations with a prosecuting office, the contours and legal theory of a different investigation (which is not that all instances of paying amateur players or their families constitute crimes), and the Government’s charging practices and policies, both generally and with respect to corporations. These are not simple matters, and they are far beyond the proper scope of this individual criminal trial. The defendant’s claim that he only seeks to elicit “relatively limited” testimony (Dkt. No. 131, at 20), even if true, ignores what would inevitably (and properly) follow from him doing so. The defendant is not “constitutionally entitled” to seek to confuse and distract the jury through calling multiple witnesses who have no firsthand knowledge of any relevant fact by labeling such a tactic his “‘defense case’” (id.). In short, even if the defendant’s theory of extrinsic evidence of alleged bias were assumed both to be comprehensible to a lay jury and factually grounded, any modicum of probative value in presenting such evidence is far outweighed by the manifest risk of unfair prejudice, confusion, distraction, and material lengthening of the trial. Nike’s motion should be granted. Respectfully submitted, GEOFFREY S. BERMAN United States Attorney By: s/ Daniel C. Richenthal, Matthew D. Podolsky, Robert B. Sobelman."

Judge Gardephe gave the US Attorney's Office until 3 pm to respond: "MEMO ENDORSEMENT as to Michael Avenatti on re: [134] LETTER MOTION addressed to Judge Paul G. Gardephe from Scott Srebnick, Jose Quinon, Danya Perry dated January 12, 2020 re: Request to Exclude Late-Produced Discovery or, in the alternative, for an adjournment. ENDORSEMENT: The Government is directed to respond to this letter by 3:00 p.m. today. (Responses due by 1/13/2020) (Signed by Judge Paul G. Gardephe on 1/13/2020."

  It remains to be seen how the US Attorney's office will response, and how Judge Gardephe will rule, with the impending trial. Watch this site.

Avenatti was granted until January 9 to review 4000 new pages from Nike before responding to Nike's Motion to Quash Subpoenas. Avenatti's lawyer Scott A. Srebnick on January 4 asked SDNY Judge Paul G. Gardephe for the adjournment, and it was granted on January 6.

  Srebnick wrote, "We believe these these additional 4,000 pages will bear directly on [Gary] Franklin's 'claim of right,' Nike's bias, and whether Nike has (or not) 'fully cooperated' with the government's investigation as it now claims." Inner City Press will continue to cover this case, including Avenatti's response now due January 9. Watch this site. The case is US v. Avenatti, 19-cr-373 (Gardephe).

The US Attorney's Office on December 27 wrote that "The Government respectfully submits this letter, pursuant to the Court’s request during the conference in this matter on December 17, 2019 and the Court’s order of December 20, 2019 (Dkt. No. 105), to provide a supplemental summary of the expert opinions that the Government expects to offer during its case-in-chief at trial. The Government also respectfully requests that the Court order the defendant to file a similar supplemental summary on or before January 3, 2020. The Government expects to offer testimony in its case-in-chief at trial from Nora Freeman Engstrom, Esq., or Mark L. Tuft, Esq.1  Professor Engstrom is a Professor of Law and the Deane F. Johnson Faculty Scholar at Stanford Law School, where she teaches classes in, among other things, legal ethics. She is the author or co-author of numerous publications, including Legal Ethics (Foundation Press, 7th ed. 2016). Mr. Tuft is a partner at Cooper, White & Cooper LLP, who principally focuses on, among other things, professional liability, and counsels lawyers and law firms on professional responsibility. He is a Certified Specialist in Legal Malpractice Law and former President of the Association of Professional Responsibility Lawyers. He is the co-author of California Practice Guide on Professional Responsibility (The Rutter Group), which is available on Westlaw."

  Back in August Judge Paul G. Gardephe told Avenatti's lawyer in that case Scott A. Srebnick to "tee up the subpoena issues sooner rather than later."

 Srebnick as in his written submissions brought up the Fifth Amendment. Judge Gardephe said raising that to a jury would be a first for him, and that Srebnick faces a uphill battle convincing him. But it seems Srebnick will try. He took up 85% of the speaking time (Inner City Press live tweeted it here), in a courtroom whose gallery was less than half filled. Things have changed.

  Srebnick proposed moving the trial from November to January, then mentioned that AUSA Richenthal has a trial starting on January 21, so why not extend further? More on Patreon here.

Back on May 28 before Judge Batts, Avenatti's first move was to have his Miami-based lawyer Srebnick ask to transfer the Daniels case to California.

  The U.S. Attorney for the SDNY's office opposed the request, saying it met none of the Supreme Court's factors for change in venue in the 1964 case Platt v. Minnesota Mining & Mfg. Co., 376 U.S. 240.  Attorney Srebnick's motion to make a motion was denied.

[Assistant U.S. Attorney Matthew Podolsky told Judge Batts he had recently beaten back a similar attempt to delay by bifurcated venue motions. For more, see Patreon, here.]

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