By Matthew Russell Lee, Patreon Song Radio
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SDNY COURTHOUSE, June 17 – When after three days of jury selection the trial of Michael Avenatti for allegedly extorting Nike began, 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 that first day on Patreon here.
Jump cut to June 9, 2021, when after conviction Avenatti filed his Nike sentencing submission, asking for "a sentence of no more than eighteen (18) months - six months in prison followed by 12 months of home confinement." His submission cites, among other things Guantanamo, Epstein, El Chapo, and Obama not ending torture.
Now in later June, the US Attorney's Office has filed victim impact statements from Gary Franklin and from Nike. They say Probation recommends 96 months, and they say "very substantial." The guideline is 135 to 168 months. More to follow - watch this site.
On August 7, 2020 in the Stormy Daniels case, Avenatti had motions heard by U.S. District Court for the Southern District of New York Judge Jesse M. Furman. Inner City Press live tweeted it, here.
Now on April 14, 2021, Avenatti's Federal Defenders have written to Judge Furman seeking to ban the press from sidebars, during jury selection in his Stormy Daniels trial.
Inner City Press has immediately filed opposition:
"Dear Judge Furman: This application responds to the defendant's letter motion earlier this evening seeking to bar the press from voir dire sidebars during jury selection in the above-captioned trial (Dkt. No. 107), and follows up on Inner City Press' August 28, 2020 submission in the same case (Dkt. No. 85).
Federal Defenders writes to oppose any press presence at sidebars in voir dire, even though this has been allowed in this District in such recent high profile cases such as that involving the testimony of cooperator / hip-hop artist Daniel Hernandez a/k/a Tekashi 6ix9ine, US v. Jones, 18-cr-834 (PAE).
See also, US v. Shkreli, 260 F. Supp. 3d 257 (EDNY 2017). The instant request to ban the press states that "no application from any press organization... is reflected on the docket."
This then is such an application, to be docketed. Note ABC v. Stewart, 360 F.3d 90 (2d Cir. 2004) - the district court erred in closing the voir dire proceedings. 'We therefore vacate the portion of the district court's order denying the media contemporaneous access to the voir dire.'
Already in this case, unlike others in this District, the defendant and his Federal Defenders have sought the total withholding of his submission seeking taxpayer funded counsel. Now they seek further exclusion of the press and public from the upcoming criminal proceeding.
Inner City Press opposes this, and asks for media access to sidebars throughout the proceeding. Since our August 2020 submission - we still have not seen the sought information - SDNY Judge Rakoff, for example, has granted Inner City Press' application that in US v. Weigand, 20-cr-188 (JSR), all exhibits be made available the evening of their submission. See, here. We ask, prospectively, for the same in this proceeding - not only on USafx but to the public at large."
On January 8, Avenatti's trial in the Stormy Daniels case was pushed back to... 2022: "MEMO ENDORSEMENT as to Michael Avenatti on [102] Letter re Trial Date: Much as the Court would like to keep the trial date as is, it concludes that, given the continuing public health crisis, going to trial on that date - particularly in a case of this nature - is not likely to be realistic or prudent. Accordingly, and in view of the Defendant's California trial dates, trial is hereby ADJOURNED to January 10, 2022. Within three weeks, defense counsel shall file a letter confirming that Defendant (1) is aware of the trial date and (2) understands that it is a firm date and that any application (e.g., relating to discovery, counsel, etc.) that could affect the ability to begin trial as scheduled may be denied on that basis alone and therefore must be filed as early as possible. The Clerk of Court is directed to terminate ECF No. 102. SO ORDERED. (Signed by Judge Jesse M. Furman on 1/8/2021)."
On January 7 in the Nike case, Avenatti asked to again push back his sentencing to May 2021, full letter on Patreon here.
On August 27, Inner City Press filed a formal request that documents in the case not be sealed, full filing on Patreon here.
On November 12, Inner City Press made a third filing with Judge Furman, on a decision to unseal issued earlier in the day by SDNY Judge J. Paul Oetken after Inner City Press filed to similarly unseal Lev Parnas' co-defendant David Correia's financial info, below. It has been docketed in the case before Judge Furman, at Dkt. No. 99.
On November 13 in the Nike case Avenatti sought a delay: "United States v. Avenatti, No. S1 19 Cr. 373 (PGG) Motion for an Additional 60-day Adjournment of Sentencing Date and Filing of Sentencing Submissions Dear Judge Gardephe: Mr. Avenatti’s sentencing hearing is currently scheduled for December 9, 2020. We write to respectfully request an additional adjournment of the sentencing date for approximately sixty (60) days, until early February 2021, if the Court’s schedule permits."
Now on November 16 Judge Gardephe has issued this: "ORDER as to Michael Avenatti: It is hereby ORDERED that the sentencing of Defendant Michael Avenatti, currently scheduled for December 9, 2020, will now take place on February 17, 2021 at 12:00 p.m. Any submissions on behalf of Defendant are due on January 27, 2021, and any submission by the Government is due on February 3, 2021. SO ORDERED. (Sentencing set for 2/17/2021 at 12:00 PM before Judge Paul G. Gardephe) (Signed by Judge Paul G. Gardephe on 11/16/2020)."
From Inner City Press' November 12 letter: "Dear Judge Furman: Pursuant to this Court's August 28, 2020 Order granting leave to be heard, this is a further argument and District precedent for the unsealing of the CJA Form 23, affidavit and all associated documents in US v. Avenatti, 19-cr-374 (JMF). Today in US v. Parnas, Correia et al., 19-cr-725, Judge J. Paul Oetken in a nearly identical case in which Inner City Press also timely sought unsealing has ordered that David Correia's financial declarations should be unsealed in full and docketed in five business days. See 19-cr-725, Dkt No 145 citing Dkt No 123 ("letter filed by Matthew Russell Lee advocating for public access to these declaration.")
Judge Oetken cites United States v. Smith, 985 F. Supp. 2d 506, 517 (S.D.N.Y. 2013) (collecting cases) and states "The Court sees no reason why the declarations at issue depart from judicial documents associated with criminal pretrial proceedings as to which the Second Circuit has previously recognized the First Amendment right of access.... Accordingly, defense counsel’s request to seal or redact the attorney declarations is DENIED. Counsel are directed to file the unredacted declarations on the public docket within five business days."
The same logic obtains and should be applied here, to the too-long filings of Defendant Avenatti.
Again, Inner City Press which closely covers SDNY criminal proceedings noted in September that before SDNY Magistrate Judge Barbara Moses the financial situation of defendant Jonathan Smith was fully disclosed on the record.
Similar disclosures have been made, even this week, in the SDNY Magistrates Court under Judge Freeman.
We again ask, why should lower income and less high profile defendants in the SDNY -- and now David Correia -- have their financial information so disclosed while Avenatti's information is sealed in its entirety? The documents at issue should not be sealed and should be made available." Watch this site.
On August 28 Judge Furman entered an order: "The Court received the attached communication from Matthew Lee of Inner City Press “seeking leave to be heard and for the unsealing of the CJA Form 23, affidavit, and all associated documents” relating to this litigation. To the extent that Mr. Lee (who is admitted to the bar of the Southern District of New York) seeks leave to be heard, his application is GRANTED. The Court reserves judgment on the question of whether Defendant’s CJA Form 23 and related documents should be unsealed. SO ORDERED. Dated: August 28, 2020 New York, New York JESSE M. FURMAN." Docket No. 85, on Inner City Press' DocumentCloud, here.
On November 10, with the Avenatti submissions still sealed, he appeared with "with attorneys Robert Baum, Tamara Lila Giwa, and Andrew John Dalack. AUSAs Matthew Podolsky and Robert Sobelman present. Court reporter present. -- Pursuant to Fed R. Crim. P. 5(f), the Court reminded the Government of its obligations under Brady v. Maryland and its progeny. -- Trial is scheduled for April 21, 2021 and is expected to last 2 weeks. Time is excluded in the interests of justice from November 11, 2020 until April 21, 2021. (ab)." The above is the Order; others reported the trial as April 26.
On September 2 Federal Defenders, rather than attempt to explain why they routinely divulge and put in the public record the financial information of less high profile and lower income clients, stating in Magistrates Court exactly how much their clients make and where they and even their spouses work, has written in this: "The defense acknowledges that the Court granted Matthew Lee, a representative of “Inner City Press,” leave to be heard on this matter. The defense requests leave to respond to Mr. Lee one week from the timely filing of any substantive brief or letter. For now, it bears emphasizing that the Court’s measures requiring the Federal Defenders to keep an accurate record of the hours spent on Mr. Avenatti’s defense, and also requiring Mr. Avenatti to regularly update the Court on his finances, are sufficient to protect the public fisc and to ensure that funds for court-appointed counsel are being properly spent. Further, “neither the First Amendment nor the common law provides a right of access to financial documents submitted with an initial application to demonstrate a defendant’s eligibility for CJA assistance.” In re Boston Herald, Inc., 321 F.3d 174, 191 (1st Cir. 2003). And “even if there were a common law presumption of access, then it would be outweighed here … by [Avenatti’s] countervailing privacy interests” and rights under the Fifth and Sixth Amendments. Id." Full letter on Patreon here. It is UNacceptable -- the public's and press' right of access is not limited to the public fisc, it is based on the FIRST Amendment.
Hearing nothing more, but continuing to closely cover all things SDNY, on September 8 Inner City Press filed again: "Re: US v. Avenatti, 19-cr-374 (JMF) - Further on the need to unseal CJA Form 23 and associated documents including affidavit
Dear Judge Furman: Pursuant to this Court's August 28, 2020 Order granting leave to be heard, and in response to Federal Defenders' September 2 (footnote) response), this is a further argument for the unsealing of the CJA Form 23, affidavit and all associated documents in US v. Avenatti, 19-cr-374 (JMF).
Before citing case law, Inner City Press which closely covers SDNY criminal proceedings notes that just today, before SDNY Magistrate Judge Barbara Moses, the financial situation of defendant Jonathan Smith was fully disclosed on the record.
To obtain CJA counsel it was disclosed that Mr. Smith of The Bronx received $471 a week in unemployment, and pays $150 to $200 a month in child support of each of his three children, and $65 a month for cell phone service. See, US v. Smith, 20-cr-317 (Swain / Moses).
We again ask, why should lower income and less high profile defendants in the SDNY have their financial information so disclosed while Avenatti's information is sealed in its entirety?
Avenatti in his other SDNY case, in which he was convicted by a jury, has requested another adjournment of sentencing, to December.
On September 10, Federal Defenders responded, saying that the disclosure of the Bronxite and Massachusetts drug defendants' information is somehow different than for Avenatti, who is apparently in their view due great privacy and protection. Then they threaten to appeal if Judge Furman rules for transparency: "RE: United States v. Michael Avenatti 19 Cr. 374 (JMF) Dear Judge Furman: We write to briefly respond to the letter submitted on behalf of Inner City Press by Matthew R. Lee requesting the unsealing of Michael Avenatti’s CJA 23 Form and accompanying affidavit. See Dkt. No. 90. Neither the public nor the media have a presumptive right to access the financial documents of a defendant who seeks court-appointed counsel under the Sixth Amendment. In re Boston Herald, Inc., 321 F.3d 174, 191 (1st Cir. 2003) (“[N]either the First Amendment nor the common law provides a right of access to financial documents submitted with an initial application to demonstrate a defendant’s eligibility for CJA assistance.”). And as discussed more thoroughly in Mr. Avenatti’s previous letters, any such common law or First Amendment interest is trumped by the real and appreciable risk of self-incrimination Mr. Avenatti faces should his sworn statements about his financial condition be made available to the government or publicly.1 1 As set forth in Mr. Avenatti’s reply to the government’s response in opposition to keeping his sworn financial statements sealed, the court in the Central District of California presiding over a different case against him has sealed Mr. Avenatti’s application for court-appointed counsel under Ninth Circuit precedent and local rules. Accordingly, Mr. Avenatti respectfully requests that the Court stay any order to unseal those same documents in this case so that he may pursue appropriate appellate relief."
We'll have more on this, once the situation becomes clearer - it is not clear if Inner City Press is permitted to surreply to this. It should not be necessary. The courts should be transparent, and defendants should be treated equally.
And later the US Attorney's Office said, " in light of the presumption of openness in criminal proceedings and the approach favored by the Second Circuit, the defendant has failed to provide a legally sufficient basis for wholesale and indefinite sealing of the CJA 23 Form and supporting affidavit." Full letter on Patreon here. Now we await Avenatti's / his Federal Defenders' reply. Watch this site.
The Nike case is US v. Avenatti, 19-cr-373 (Gardephe).
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