By Matthew Russell Lee, Patreon Song Radio
BBC - Decrypt - LightRead - Honduras Podcast
SDNY COURTHOUSE, July 8 – When after three days of jury selection the trial of Michael Avenatti for allegedly extorting Nike began on January 29, 2020 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 on Patreon here.
Now on July 8, 2021, Avenatti has been sentenced to 30 months in the Nike case, while still seeking to ban the Press from voir dire jury selection sidebars at his upcoming Stormy Daniels trial, which Inner City Press has opposed, see below. Inner City Press live tweeted the July 8 sentencing, here and below (podcast here)
Sentencing is getting a late start, as they moved people out of Judge Gardephe's courtroom, seemingly to make way for more SDNY prosecutors to squeeze in to watch. Three AUSAs at front table. Avenatti at the defense table behind.
Avenatti puts on glasses, fidgets with pen, glances over legal pad in front of him. As at all sentences, he'll be given his chance to speak, before Judge Gardephe passes sentence.
Avenatti leans over and whispers into ear of his lawyer Srebnick. In other SDNY courtrooms, they tell the defendant to only speak with his or her lawyer by in-house phone, citing COVID. All rise!
The AUSAs introduce themselves - and their paralegal. And FBI agent. For Avenatti, two lawyers: Scott Srebnick and Danya Perry. Judge Gardephe reads out the Rule 5(f) "Due Process Protection Act" script. US says it's in compliance.
Judge Gardephe: In preparation for sentencing, I have read the government's and defense's submissions. Ms Perry, will you be speaking?
Perry: Mr. Srebnick will be addressing the pre-sentencing report. Judge Gardephe: So I'll ask him: any objections to the report? Inner City Press @innercitypress · 1h Srebnick: We raised to Probation, we disputed the evidence at trial. But we understand the jury has spoken. We are prepared to proceed. Judge Gardephe: There were a couple of typos - the phrase reads "counts also object" when it should read, "Counsel also object."
Judge Gardephe: A jury convicted Mr. Avenatti. Under the sentencing guidelines grouping rules, counts 1 and 2 were grouped because the same victim. Count 3 has a different victim, Gary Franklin. Mr. Avenatti does not agree. Inner City Press @innercitypress · 1h Judge Gardephe: Here, as my jury instructions made clear, there was a close relation between the extortion and honest services fraud conduct. There's Avenatti's demand that he be hired to conduct an internal investigation... and his breach of duty to Mr. Franklin
Judge Gardephe: The Probation Department applied the enhancement because Mr. Avenatti abused a position of trust... I will group all three counts together to calculate the guidelines level. Extortion is the highest: the base level is 9, 20 levels are added
Judge Gardephe: Mr. Avenatti objects, saying the cost of an internal investigation should be subtracted. His argument is not persuasive. Nike has already performed an internal investigation. And Mr. Avenatti was not qualified to do one - he had a conflict
Judge Gardephe: There was ample evidence Mr. Avenatti had no genuine interest in performing an internal investigation. His objections are overruled. 2 levels are added for abuse of trust. Offense level is 31. No criminal history. Guideline is 108 to 135 months
Judge Gardephe: Ms. Perry, I'll hear from you as to an appropriate sentence. Ms. Perry: I know that you've read the letters that've been submitted. He feels he's brought enough shame to his parent, and pain- he faced challenges growing up. He's always worked hard.
Perry: He wanted to be the David fighting Goliath. But he lost his way. He is a loving and devoted father and friend. His daughters have written - we ask the letters should be sealed, they are minors. Anyone who supports Avenatti faces abuse. I have, as a woman
Perry: The letter describe a man who has decent values, generous and kind. His ex-wife begs the court to take into account his full story. His daughters cite his goofy side. I know how those tape recordings sound.
Perry: He will never use his law license again. He faces serious charges in other matters. He's had an epoch fall. He's served hard time already: 100 days of solitary, and difficult home confinement since. No one would wish them on themselves
Perry: The factors favor significant leniency in this case. The facts are unusual. There was a whisper-thin line. What's the distinction between Mr Avenatti's conduct and that of Mr Geragos, who the US did not charge? Indulge me: Geragos was in every conversation
Perry: Geragos insisted on the internal investigation, and he would have been paid for it. The Nike lawyers felt as extorted by him. The US at first agreed, and called him a co-conspirator. I am not making a "what-about-ism" argument here...
Perry: This was not a case of violent threats, so no sentence near the guidelines is merited. You need to avoid unwarranted sentencing disparities. No one else was charged. But consider Mr Geragos - he maintains a national profile, speaking at events and the like
Perry: We submitted a chart that the US did not meaningfully respond to.... Judge Gardephe: You've cited the case of a defendant who got a 5K letter as a cooperator. They accepted responsibility, and expressed remorse. I'm sure the judge took that into account
Perry: We request a downward variance due to conditions at the MCC. He was in 10 South, essentially the Super Max unit, for five weeks. Then he was put in lockdown, due to a smuggled gun. Then COVID hit. He spent 100 days in lockdown or solitary
Perry: I was at the US Attorney's Office for 11 years and never saw the inside of the MCC - which I think is a problem. But I could not imagine the conditions. I waited in the cold to meet with him for 15 minutes. One page at a time. Blue lips. Perry: It was not conducive to mental health. I saw that, unfortunately, with respect to Mr. Avenatti. We ask for a downward variance. Judge Gardephe: I'll hear from the government. AUSA: You heard from Mr. Franklin, and from Nike.
AUSA: This case was not about nasty language, it was about abuse of trust. Of Mr. Franklin. Mr. Avenatti looked him in the eye, then flew across the country and demanded that Nike pay him, and not Mr. Franklin. Then he told Mr. Franklin, It went great.
AUSA: There's also a public abuse of trust. He was a lawyer, trusted by the public to represent the interest of others. They say, David versus Goliath, on social media. Then he abused that trust. And he has a profound lack of remorse.
AUSA: At no time did Mr. Avenatti express an interest in pleading guilty. You saw that at trial. And we saw it just now. We have yet to see any sincere expression of remorse. He casts blame on others, like Mr. Geragos. But Mr. Geragos did not meet Mr Franklin
AUSA: Mr. Avenatti went out and accused Nike without having a basis. He didn't know the purpose of the payments. He threw the children & the families under the bus. Late in the process, he accused Nike of harming Mr. Franklin. Then he says he did something foolish
AUSA: We submit that a substantial sentence of imprisonment is needed in this case. Judge Gardephe: Mr. Avenatti? Avenatti: May I step to the podium? Judge Gardephe: Please do.
Avenatti: Your Honor, when I was child I dreamed of becoming a lawyer. Others wanted to be athletes. I wanted to be a trial lawyer, and doing good, achieving justice. Fighting for the little guy against the Goliaths. For years I did just that. Then I lost my way.
Avenatti: I betrayed my profession. I became driven by the things that don't matter in life. In the past two years I've asked, Why did this have to happen? I've learned that money and notoriety are meaningless. Everyone wants to ride in a limo with you, not a bus
Avenatti: Few want to take you calls from prison. I am truly sorry for pain I have caused Mr. Franklin and others. I am humbled. I still feel positive. I know I can do better. I can be the person I dreamed of being (voice cracks). I will never practice law again
Avenatti: I am grateful to my family. (sobs). I'm sorry your Honor. I am thankful to my few friends who have stood by me. I and I alone have destroyed my career, my relationships, my life. I deserve to pay, have paid & will pay a further price for what I have done
Avenatti: My 3 children are not here. I decided last week I could not ask them to give me any more. I have already subjected them to so much. Too much. It should never be a child's job to save his father. I want my children to be ashamed of me.
Avenatti: Because if my children are ashamed of me, their moral compass would be where it should be. Thank you your Honor. Judge Gardephe: This arises from Mr. Avenatti's representation of Franklin. Nike dropped Franklin, and he lost control of his 17 & under team
Judge Gardephe: Mr. Franklin turned to a friend to help regain the Nike sponsorship. But Nike referred it to Boies Schiller. So after a time, Mr. Avenatti met Mr. Franklin on March 5, and got documents. Avenatti told Franklin he would represent him.
Judge Gardephe: Geragos told Nike's outside counsel Wilson that "Nike has an Adidas problem," a reference to a prosecution in this district. Judge Gardephe: At the March 19 meeting, Wilson and an in-house Nike lawyer met Avenatti and Geragos. Avenatti shared confidential documents and demanded $1.5 million and that he be hired for an internal investigation, or he'd hold a press conference the next day.
Judge Gardephe: Nike's lawyers had been working with the SDNY US Attorney's Office's lawyers. So they contacted them. So the next meetings were recorded - and used at trial. On March 19 in a call with Mr. Wilson, Avenatti laid out his demands.
Judge Gardephe: Avenatti said, "I'm not going to f*ck around... A few million doesn't move the needle for me. I'll call the New York Times, they're waiting for my call. I'll take $10 billion off your client's market cap."
Judge Gardephe: They proposed a $15 million investigation, with disclosure of the results entirely up to Nike. Wilson asks he Nike could just settle with Franklin. Avenatti rejected it, asking Why pay Franklin so much in light of his role in this?
Judge Gardephe: Avenatti asked, Have you ever held the balls of a client in your hands? He offered confidentiality for $22.5 million, with he and Mr. Geragos riding off into the sunset. Avenatti tweeted, We have not reached the end of this scandal
Judge Gardephe: Mr. Avenatti was arrested on March 25 outside Boies Schiller's Hudson Yards office... Mr Avenatti grew up near St. Louis. His father worked for Anheuser Busch but got laid off... Mr. Avenatti's early years were marked by hard work, at St Louis U
Judge Gardephe: He transferred to Penn and worked full time, then GWU law school. He worked full time and attended evening classes. He worked at King & Spalding. He went to O'Melveny and Myers. He started his own firm in 2006. The guidelines start at 108 months.
Judge Gardephe: The defense seeks six months imprisonment. The government says a "very substantial term of imprisonment" is necessary. Here's my reasoning: Mr. Avenatti's conduct was outrageous. He hijacked his clients claims for himself
Judge Gardephe: Avenatti poo-pooed paying Franklin, saying the lion's share should go to him. Mr. Avenatti had become drunk on what he perceived as the power of his platform. He thought the rules didn't apply to him. This is criminal conduct that must be deterred
Judge Gardephe: I am not persuaded by the cases cited, including the one involving Ms. Jackson and Bill Cosby. Autumn Jackson demanded $40 million - but she had a legitimate claim against him, being his daughter.
Judge Gardephe: Then there's the Western New York case, lawyers demanding a $200 million consulting deal. One got 2 years in a plea bargain deal, the other a year and day. But it's not comparable - they were plea bargains, and one cooperated and got a 5K1.1 motion
Judge Gardephe: Here, at least until today, there was no contrition. The so called Varsity Blues cases are not comparable: the defendants expressed remorse, and sought to resolve the charges. But Mr Avenatti expressed that I take to be sincere remorse today
Judge Gardephe: 108 months would be excessive, not necessary to deter Mr. Avenatti or others. Also, he was held in horrific conditions at the MCC for more than three months. Hard to believe those conditions could occur in the USA.
Judge Gardephe: A variance is also necessary due to Mark Geragos. He was listed an unindicted co-conspirator. He suffered no consequence. The government says Geragos never met Franklin. My answer is, He purported to represent Mr. Franklin
Judge Gardephe: Maybe Mark Geragos should have met with Mr Franklin, if he represented him. Instead he called and said, Nike might have an Adidas problem. Geragos unlike Avenatti was an experience criminal defense lawyer. But he played good cop, bad cop
Judge Gardephe: It has never been cogently explained why Mr. Geragos was never acted on as a co-conspirator. I intend to impose a sentence of 30 months.
Judge Gardephe: Mr. Avenatti refused to submit a financial affidavit, so I cannot find he cannot pay a fine. $11 million in judgment have already been entered against him. It is not clear to me how he will earn a living. In California he faces a 36 count indictment
Judge Gardephe: So I will not impose a fine. He must pay the $100 special assessment. The US wants restitution to Nike. The submissions are not adequate. The billing records are redacted. Under "Lagos," restitution here is limited to investigatory activities.
Judge Gardephe: Nike wants to be paid for Avenatti's post arrest attack on it. They are not entitled to that. The Supreme Court has said the restitution statutes should be narrowly construed. I will give the US and Nike another chance, until July 14.
Judge Gardephe: Mr Avenatti, I am sentencing you to 30 months imprisonment, and three years supervised release. Special assessment of $300 [$100 per count] Anything further?
Srebnick: What about designation? We ask surrender September 15, to BOP Sheridan Oregon
AUSA: We do not ask remand to prison, due to California case.
Judge Gardephe: I recommend the Federal prison camp in Sheridan, Oregon on September 15 - if not designated, to the US Marshals here. You have the right to appeal, notice within 14 days.
Judge Gardephe: We are adjourned.
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.
On April 14, 2021, Avenatti's Federal Defenders wrote to Judge Furman seeking to ban the press from sidebars, during jury selection in his Stormy Daniels trial.
Inner City Press 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."
We'll have more on this, once the situation becomes clearer
That case is US v. Avenatti, 19-cr-374 (Furman).***
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