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Nike Extortion Trial US Calls Avenatti Bid
To Admit Franklin Statements Without Merit
By Matthew
Russell Lee, Patreon
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SDNY COURTHOUSE,
Feb 4 – When after three
days of jury selection the
trial of Michael Avenatti for
allegedly extorting Nike began
on January 29, Assistant US
Attorney Robert Sobelman told
the selected jurors that
Avenatti was supposed to look
out for the interests of his
client, but he did not - he
had a weapon, social
media. More on 1st day
on Patreon here.
On the
evening of February 4, the US
Attorney's Office wrote in
opposition to Avenatti's
requests and cases: "The
Government respectfully writes
in brief response to the
defendant’s claim, made
earlier today in court, that
he should be permitted to
offer out-of-court statements
of Jeffrey Auerbach (or Gary
Franklin, Sr.), never seen by
or shared with the defendant,
to prove the then-existing
state of mind of Mr. Auerbach
under Federal Rule of Evidence
803(3), in support of which
the defendant has just emailed
Your Honor’s law clerk three
cases, United States v.
Schultz, No. 14 Cr. 467, 2017
WL 2080348 (N.D. Ill. May 15,
2017), United States v.
Harwood, 998 F.2d 91 (2d Cir.
1993), and United States v.
DiMaria, 727 F.2d 265 (2d Cir.
1984). The defendant’s claim
is without merit. To be
admissible on this basis, an
out-of-court statement must be
relevant to a then-existing
state of mind or intent
regarding a relevant fact.
See, e.g., United States v.
Lesniewski, No. 11 Cr. 1091,
2013 WL 3776235, at *5
(S.D.N.Y. July 12, 2013).
Moreover, this exception to
the hearsay bar only permits
the limited admission of
statements of future intent,
not those concerning past
intent and/or motive....
Moreover, it [sic]
questionable, at best as to
whether the text messages at
issue demonstrate a “state of
mind” at all, rather than
assert facts concerning, for
example, what NIKE, Inc.
allegedly did or did not do.
And even if they did so
demonstrate, at least as to
Mr. Auerbach, they are
cumulative of testimony that
has already been given.
Although
the Government has only had
limited time to review them,
the three cases cited by the
defendant in his email to Your
Honor’s law clerk a few
minutes ago are not to the
contrary. Rather, two of the
three (DiMaria and Schultz)
concern statements offered to
prove the defendant’s own
state of mind, which is, of
course, relevant. And the
third case (Harwood) affirms
preclusion of the out-of-court
statements of another person,
explaining that they were
offered “to support an
inference about conduct that
had occurred five months
earlier,” and that “[t]o admit
such statements “would
significantly erode the
intended breadth of this
hearsay exception.” 998 F.2d
at 98 (internal quotation
marks omitted). So too here."
Earlier on
February 4, after a day of
cross examination and
re-direct of Gary Franklin's
adviser Jeffrey Auerbach, AUSA
Sobelman after the jury left
complained to Judge Paul G.
Gardephe, "The defendant is
extremely loud," referring to
his remonstrating on which
Inner City Press reported
yesterday.
Judge
Gardephe said, I haven't heard
anything. But this is an issue
that came up before. I will
ask Mr. Avenatti's lawyers to
speak to him. I'll have to pay
more attention to the defense
table. We can't have the jury
hearing exchanges between Mr.
Avenatti and his attorney.
I'll have to intervene."
And then Avenatti
spoke up for
himself: "I'll be
conscious of my voice. I have
a lot at stake, everyone knows
that." Inner City Press tweet
of that here;
day's thread here.
Inner City Press will continue
to cover the trial, as much as
possible. Today's afternoon
radio here.
More of Patreon here.
On
February 3, Gary Franklin's
pro bono consultant Jeffrey
Auerbach took the stand. Inner
City Press was in the
courtroom's second row when
Assistant US Attorney Robert
Sobelman walked Auerbach
through testimony about
Avenatti saying he was headed
to New York on a red-eye to
get $1 million for Gary
Franklin.
As
Auerbach gave his opinion,
Avenatti vigorously shook his
head, with hair on the sides
above the ears. He took notes
that apparently went into the
cross examination, to which
Sobelman repeatedly objected.
Finally Judge Gardephe said,
You are objecting to a
document you the prosecutors
put into the record. Again the
payments to Deandre Ayton,
mother and handler Melvin
McDonalnd, to Bol Bol and to
Shaun Manning Brandon McCoy
came up. People wanted to know
more but there are limits.
More on Patreon
here.
On January
31 Inner City Press published
the March 25, 2019 draft
settlement agreements, with
dollar figure left blank, here
on Scribed
and on Patreon for
download here,
as well as the more than one
hour video of Avenatti's and
Mark Geragos' meeting with
Nike's outside counsel, Scott
Wilson of Boies Schiller, here.
Inner City
Press has also published three
audio records of Wilson's
conversations on March 20,
2019 with Geragos, and
Avenatti, saying "I'm not
f*cking around." Audio I,
II
and III.
More including transcripts on
Patreon here.
We will
have more on this, here and on
Patreon.
Inner City Press live-tweeted
the start of the proceedings,
here,
and since and will have more.
More
on Patreon here. The
case is US v. Avenatti,
19-cr-373 (Gardephe).
***
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