| Day Before SDNY Trial US Insists
Avenatti Not Cite Colin Kaepernick Despite
Geragos Link
By Matthew
Russell Lee, Patreon Thread
BBC
- Decrypt
- LightRead - Honduras
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Source
SDNY COURTHOUSE,
Jan 26 – With the trial of
Michael Avenatti set to start
on January 27, it was decided
on January 22 that Stormy
Daniel vs Trump can be brought
up in opening statements, and
in all probability even more
during cross-examination of
government witness Gary
Franklin - but that Colin
Kaepernick could not, at least
not initially. Live tweeted
thread here.
Judge Paul G. Gardephe of the
U.S. District Court for the
Southern District of New York
declined, however, to postpone
the trial for a week. He told
Avenatti's lawyers that if
they have a problem accessing
him in the MCC jail as they
have complained, to raise it
to him again.
Now on
January 26 the US Attorney's
Office has argued against
Avenatti's renewed argument to
cite Colin Kaepernick: "the
defendant asks this Court to
permit him both to mention and
discuss Colin Kaepernick.
(Def. Ltr. 4-5.) However, the
Court already ruled that the
defendant may not, unless Mr.
Kaepernick’s name is on a
recording that will be heard
by the jury. (See Tr. 149:2-11
(Jan. 22, 2020).) And the
defendant acknowledges that
Mr. Kaepernick’s name is not
on any such recording. (Def.
Ltr. 4.) The defendant’s
argument is thus effectively a
motion for reconsideration.
“The standard” for
reconsideration “‘is strict
and [such a motion] will
generally be denied unless the
moving party can point to
controlling decisions or data
that the court
overlooked—matters, in other
words, that might reasonably
be expected to alter the
conclusion reached by the
court.’” Boyd v. United
States, No. 12 Civ. 474 (JSR),
2015 WL 1345809, at *1
(S.D.N.Y. Mar. 21, 2015)
(quoting Shrader v. CSX
Transp., Inc., 70 F.3d 255,
257 (2d Cir. 1995)). The
defendant does not come close
to meeting this standard. He
asserts merely that because,
in non-recorded conversations,
Mr. Kaepernick’s name may have
been mentioned, he should be
allowed both to elicit that
fact and to make arguments
concerning it. (Def. Ltr.
4-5.) That assertion fails for
multiple reasons. As an
initial matter, that a name
may have been used in a
non-recorded conversation does
not automatically mean that
the defendant should be
permitted to use it at trial
(or that the Government should
be permitted to do so), much
less make arguments concerning
the person named. Put
differently, the name “will be
featured” (id. at 4) only if
the defendant chooses so to
feature it. The question is
whether the defendant should
be permitted to do so. The
answer is no. The defendant’s
sole argument to the contrary
is to state that he
purportedly “approached Mr.
Geragos, believing that Nike
would trust a lawyer as
serious as Mr. Geragos
(together with Mr. Avenatti)
to conduct a legitimate
investigation,” because Mr.
Geragos had “resolved a case
as sensitive as Kaepernick’s
with Nike.” (Id. at 5
(emphasis in original).) The
defendant cites nothing in
support of this purported
fact—which is not supported by
the defendant’s own text
messages with Mr. Geragos,
which show that what the
defendant cared about was
connecting with Nike as soon
as possible, not why Mr.
Geragos was able to do so.
Notably, Mr. Kaepernick’s name
does not appear in those text
messages. But even if there
were some theoretical
relevance to Mr. Kaepernick’s
name (rather than the nature
of Mr. Geragos’s prior
relationship with Nike, which
can be explained without using
the name), it should be
precluded under Rule 403 for
the reasons previously
discussed with the Court.
Rightly or
wrongly, Mr. Kaepernick is a
controversial figure. Compare,
e.g., Heroes of the 2010s:
Colin Kaepernick, here
(last visited Jan. 26, 2020),
with, e.g., NFL Executive:
Colin Kaepernick Is ‘A
Traitor,” here
(last visited Jan. 26, 2020),
and, 'He's a racist': Graham
rips 'loser' Kaepernick for
'un-American' criticism of
Soleimani strike, here
(last visited Jan. 26, 2020).
And, importantly, his work and
relationship with Nike, in
particular, again rightly or
wrongly, also is
controversial. See, e.g., When
It Comes to Colin Kaepernick,
the Flag and Nike, It’s Just
Business, The Wall Street
Journal, July 3, 2019,
available here;
Nike drawn into NFL-Kaepernick
dispute over private workout,
here
(last visited Jan. 26, 2020).
That presumably is why the
defendant is fighting so hard
to use his name, when it is
otherwise wholly irrelevant.
And it is precisely why the
defendant’s argument should be
rejected, again "
More on Patreon here.
The trial will have a soft
beginning on January 27, with
a questionnaire being
distributed to prospective
jurors. The trial should take
two and a half weeks, Judge
Gardephe said. The case is US
v. Avenatti, 19-cr-373
(Gardephe).
***
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