By Matthew Russell Lee, Patreon Song Radio
BBC - Decrypt - LightRead - Order Affidavit
SDNY COURTHOUSE, Jan 22 – Michael Avenatti's financial affidavit to get a publicly paid lawyer for his Stormy Daniels case, which Inner City Press formally sought to have unsealed for eleven months, were on July 27, 2021 ordered unsealed. Order.
Podcast here. Aug 13 podcast here.
Now on the weekend before trial there's a request to delay it, on COVID policy and Constitutional grounds.
Late on December 9, 2021 both Avenatti and the prosecutors filed with motions in limine in advance of the Stormy Daniels trial. Avenatti wants to preclude introduction as evidence of some of his and others' statements. The US wants in evidence of Avenatti's and his law firm's financial situation and Avenatti's failure to file income tax returns, among other things.
On January 18 Judge Furman ruled that jury selection would continue on January 20 with the 69 prospective jurors as to which neither side objects - and that "the Court will not inquire during voir dire about prospective jurors' vaccination status."
On January 21, the Friday before the trial's Monday start, after the jury was selected, Judge Furman issued this order: "ORDER as to Michael Avenatti: The Court just learned that, based on a new safety protocol that will be implemented imminently, no one may unmask in the courtroom even in the HEPA-filter-outfitted witness and attorney boxes unless they have tested negative for COVID-19 using an approved molecular diagnostic test. (Antigen tests are not approved.) If a person will be removing his or her mask on successive days, the person may test on an every-other-day schedule; otherwise, the speaker must test negative on the day of his or her appearance. If a speaker has had a confirmed case of COVID-19 (verified by either a doctors note or a viral test result) within the prior ninety days, he or she will be exempted from these testing requirements. Confirmation of negative test results (or of a prior case of COVID-19) must be provided to the Court through its staff. (Signed by Judge Jesse M. Furman on 1/21/2022).
At 11 am on Saturday January 23, Avenatti's publicly paid Federal Defenders asked for delay: "Dear Judge Furman: On Friday, January 21, 2022, the Court issued an Order relating to a new mask mandate in the Southern District of New York that requires everyone in the courthouse to remain masked, including trial witnesses, absent proof of a same-day negative Covid-19 molecular diagnostic test. Dkt. 285. This policy raises the specter that witnesses at Mr. Avenatti’s trial will be masked during their testimony in violation of Mr. Avenatti’s Sixth Amendment fair trial and Confrontation Clause rights. Accordingly, Mr. Avenatti objects to proceeding to trial under this policy and moves for an immediate two-week adjournment of the trial to February 7, 2022, the date originally set by the Court on November 2, 2021. Dkt. 156."
This came after, in another SDNY trial Inner City Press is covering in, the defense challenged the policy outright. (US v. Seth Fishman, et al, here). Watch this site.
Judge Furman also released his other intended juror questions, asking each side to respond by January 19 at 10 am. The questions include: "Based on anything that you have read, seen, or heard about 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? 10. Would you have any trouble following my instructions to put anything you may have read, seen, or heard about Mr. Avenatti out of your mind and decide this case based only on the evidence presented at trial? 11. Do you or does any member of your family or a close friend personally know or have past or present dealings with the alleged victim in this case, Ms. Clifford (also known as “Stormy Daniels”), or with any of her family members?...
"Do you know or have you heard of any of the following people or entities, which include the lawyers in this case, people who may testify at the trial, and other names that may be mentioned during the course of the trial? • Pamela Baez • Elizabeth Beier • Thomas Bolus • Clark Brewster • Christine Carlin • Michaela Catando (also known as Kayla Paige) • Dmitri Chitov • Dwayne Crawford • Jennifer Donovan • Anna Finkel • Mark Geragos • Jack Guiragosian • Holtzbrinck Publishers • Luke Janklow • Janklow & Nesbit Associates • Geoffrey Johnson • Global Baristas • Sean Macias • Macmillan Publishers • Susan McClaran • Benjamin Meiselas • Travis Miller • Mareli Miniutti • Erik Nathan • Denver Nicks • Kevin Carr O’Leary • David Padilla • Brandon Parraway • Pro Tech Security and Automation • Judy Regnier • Sally Richardson • Security and Automation LLC • St. Martin’s Press • Enrique Santos • Jessica Volchko • Juliet Vicari • Donald Vilfer 25. Are you familiar with anyone else present in the courtroom, including your fellow jurors, all Court personnel, and myself?"
Full draft here.
On January 17, MLK Day, the US Attorney's Office filed a letter arguing for continued sealing: "the Government opposes the unsealing of the aforementioned filings concerning Victim-1 and the Office Assistant until at least until after Victim-1 and the Office Assistant’s testimony at trial concludes." Full letter on Patreon here.
On January 13, in the run up to the January 24 trial, Judge Furman ruled "ORDER as to Michael Avenatti. The Court will provide the list of prospective jurors to the parties. The list and the copies of the completed jury questionnaires shall be used only in connection with this case and, unless and until the Court orders otherwise, may not be shared with anyone other than members of the prosecution and defense teams."
Note: this amid the chaos in the US v. Ghislaine Maxwell case, where it is alleged, under redactions, that Juror 50 did not accurately fill out his questionnaire...
"ORDER granting [184] LETTER MOTION Seeking Preclusion of Expert Testimony as to Michael Avenatti (1): The motion was granted... ORDER as to Michael Avenatti: It is hereby ORDERED that the final pretrial conference, which will be held on January 19, 2022, at 11:15 a.m. and trial, which will begin January 24, 2022, at 9:30 a.m., will be held in Courtroom 26B of the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, New York, NY. SO ORDERED. (Signed by Judge Jesse M. Furman on 1/13/2022)
Reaching back to his conviction in the Nike case, on December 2 his lawyers wrote to Judge Paul G. Gardephe seeking an indicative ruling on the Brady violations identified in his California case, to "help" the Second Circuit. It cites the report of John Drum about his law firm's finances, that he was not in fact desperate for a payola from Nike. But will it work? Watch this site.
On August 27 Avenatti's Federal Defenders wrote to Judge Furman to arguing that, now that Avenatti's iPad has been accessed by DOJ, they do not want the DOJ taint-team involved. They asked for Judge Furman himself to get involved in the review.
On September 9, Avenatti's motions were denied. Full order here.
On November 18 a sealed document was "placed in the vault," with a listing in the docket for a motion arguing for it: "LETTER MOTION addressed to Judge Jesse M. Furman from Robert Baum, Andrew Dalack, Tamara Giwa dated 11/18/21 re: Motion for In Camera Inspection of Complainant's Mental Health Records . Document filed by Michael Avenatti."
But even as to the motion, PACER says "You do not have permission to view this document." So even the argument for sealing is sealed?
On November 10, the trial date moved up again: "AMENDED SCHEDULING ORDER as to Michael Avenatti: The Court's trial calendar has changed since the Scheduling Order of November 2, 2021. See ECF No. 156. As a result, the trial date in this matter is hereby advanced by two weeks, as are all of the corresponding pretrial deadlines (give or take a day or two due to Court holidays and the like). Specifically, the new trial date and pretrial deadlines are as follows. Unless and until the Court orders otherwise, trial in this case shall begin (in a courtroom to be determined when trial gets closer) on Monday, January 24, 2022, at 9:30 a.m. As counsel know, that date is contingent on the Court being allocated that date through the centralized trial scheduling process now in effect. For avoidance of doubt, however, the parties should treat January 24, 2022, as a firm trial date."
Later on November 10, Federal Defender Robert Baum wrote to Judge Furman asking to push the trial back to February 7 or "a later date in February or March, 2022," citing US v. Russo, 21-cr-271 starting on January 17.
On November 3 in the Nike case, Avenatti's surrender date was pushed back to February 28: "MEMO ENDORSEMENT as to Michael Avenatti re: [353] Modification of Surrender Date... ENDORSEMENT: The application is granted. Defendant Michael Avenatti's surrender date is adjourned from December 15, 2021 to February 28, 2022. SO ORDERED. (Signed by Judge Paul G. Gardephe on 11/3/21)."
On October 14 Judge Furman held a proceeding in the Stormy Daniels case and Inner City Press live tweeted it here and podcast here
On August 10 Avenatti's Federal Defenders filed a copy of the affidavit with multiple redactions. The form refers on nearly every question to an attachment, which is blacked out in absurd ways. It reads, for example, "I own stock in two closely held companies that may have value: (a) [REDACTED] located in [REDACTED] and (b) [REDACTED] located in [REDACTED]... I technically still have an interest in a private aircraft (model: HondaJet 420) that was seized by the IRS and is still in their possession. This interest is held through a single-purpose entity named [REDACTED]," and so forth.
Inner City Press published the redacted affidavit on its DocumentCloud here and asked, Will the Court be accepting this?
On August 11, the correct answer was: No. "MEMO ENDORSEMENT as to Michael Avenatti (1) on [139] LETTER MOTION re: [139] LETTER MOTION addressed to Judge Jesse M. Furman from Robert Baum, Tamara Giwa & Andrew Dalack dated August 10, 2021 re: Letter Motion In Response to Court's Order to File Financial Affidavit. ENDORSEMENT: The Court is unpersuaded that privacy interests justify redacting the names and locations of the corporate entities in Paragraphs 14, 15, and 17 of ECF No. 139-1."
After hours on August 12, some redactions were removed: Avenatti's owned a plane through Passport 420 LLC; an unnamed "non-family-member acquaintance" paid a NY-based attorney in the Nike case, whose name is redacted. Unredacted: Avenatti owns stock in Tyrian Systems (aka Seek Thermal) of Santa Barbara, CA and Centurion Holdings I, LLC of St. Louis Missouri."
Not so fast. Inner City Press research in the hours after the removal of the improper redactions found that Centurion Holdings I, LLC is based in Arnold, Missouri - and "received a PPP loan of $60,477 in May, 2020." That's the Paycheck Protection Program; the funds came through the Central Bank of St. Louis.
Bigger, the aka: "Seek Thermal, Inc of 6300 Hollister Ave in Goleta, California received a Coronavirus-related PPP loan from the SBA of $1,365,062.00 in April, 2020." We'll have more on this.
Watch this site.
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 infor: "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."
On August 28, 2020 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 July 27, 2021, Judge Furman four times citing Inner City Press ordered Avenatti's affidavits unsealed: "Avenatti filed a letter brief arguing that the Initial Financial Affidavit should remain under seal. ECF No. 80 (“Def.’s Mem.”). Thereafter, the Court received submissions from Inner City Press, a media outlet that intervened to seek disclosure of the Financial Affidavits, ECF Nos. 85, 90, 99... The Defendant initially argued that the Government lacked standing “to assert any right on behalf of the public to access Mr. Avenatti’s sworn financial statements.” Def.’s Mem. 7 n.1 (citing United States v. Hickey, 185 F.3d 1064 (9th Cir. 1999)). Subsequently, however, the Court granted leave to Inner City Press to be heard on the Defendant’s motion, ECF No. 85, which indisputably does have standing to assert such rights." Full order here, filings due August 10. Watch this site.
This case is US v. Avenatti, 19-cr-374 (Furman).***
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