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By Matthew Russell Lee, Patreon, thread video

SDNY COURTHOUSE, Dec 24 – Michael Avenatti in the Nike case against him opposed the US Attorney's proffered legal expert testimony about his fiduciary duty, citing decisions by U.S. District Court for the Southern District of New York Judges Valerie E. Caproni and Kimba Wood, below.

  Now in the run up to a trial set to begin on January 22, Avenatti on December 24 argues that "the claimed advice of counsel is evidence that, if believed, can raise a reasonable doubt in the minds of the jurors about whether the government has proved the required element of the offense that the defendant had an ‘unlawful intent.’”). Thus, the Federal Rules of Criminal Procedure do not require pretrial notice by a defendant who intends to advance such an argument, as they do for affirmative defenses such as alibi, insanity, and public authority. See Fed. R. Crim. Pro. 12-1, 12- 2, and 12-3."

Previously Avenatti's counsel wrote: "the two cases on which the government primarily relies for the broad proposition that its proposed expert testimony is relevant and admissible (Dkt. No. 98:9-10) actually severely undermine the government’s argument. First, United States v. Skelos, 707 F. Appx. 733, 740 (2d Cir. 2017), cited by the government as “upholding admission of testimony by ethics authority regarding New York state ethics rules …,” (Dkt. No. 98:10), involved a fact witness, not an expert witness, who testified that she had prepared training materials (i.e. a PowerPoint presentation) for State Senators that contained excerpts of various ethics rules and that Defendant Skelos had been trained using the PowerPoint. See United States v. Skelos, No. 15 Cr. 317 (KMW) (ECF No. 140:84-107) (witness’s testimony attached hereto as Exhibit 1). Indeed, after the fact witness testified on direct, the prosecutor in Skelos successfully prevented the defense from using the witness as a quasi-expert witness on ethics rules, stating:

'Your Honor, the government was very careful to elicit on direct only factual issues, that is, we just read through the PowerPoint and said were the senators trained on this. We have not asked about her legal opinions about anything, whether certain things violate those laws. The entire purpose of this, especially in light of defendants’ concern about this witness, was just to factually state he’s been trained on these laws. I want to make sure that [defense counsel] – sounds like maybe he’s going this way – is going to try to turn her into a quasi expert witness on the development of the laws, what it means, et cetera. And I want to make sure we’re on the same page. This witness is being offered for a limited purpose, in light of the defendants’ objections.'  (Exh. 1, ECF No. 140:102) (emphasis added).

 A second Skelos prosecutor added that the scope of the witness’s direct testimony was narrow, noting Judge Caproni’s ruling in another case that “dueling experts on the meaning of state law [] is not admissible from either side,” to which Judge Wood noted her agreement. (Exh. 1, ECF No. 140:102-03).

  Back in August Judge Paul G. Gardephe told Avenatti's lawyer in that case Scott A. Srebnick to "tee up the subpoena issues sooner rather than later."

 Srebnick as in his written submissions brought up the Fifth Amendment. Judge Gardephe said raising that to a jury would be a first for him, and that Srebnick faces a uphill battle convincing him. But it seems Srebnick will try. He took up 85% of the speaking time (Inner City Press live tweeted it here), in a courtroom whose gallery was less than half filled. Things have changed.

  Srebnick proposed moving the trial from November to January, then mentioned that AUSA Richenthal has a trial starting on January 21, so why not extend further? More on Patreon here.

Back on June 18 when Avenatti phoned in to the prior status conference in the Nike extortion case against him, he said nothing other than confirming he was on the line and has no scheduling conflict for the trial scheduled for November 12.

  Srebnick told Judge Gardephe in June that the trial might have to be delayed because Avenatti's law firm's server has still not been reviewed. He said it is in the possession of the U.S. Attorney's Office for the Central District of California. 

  SDNY Assistant US Attorney Podolsky said that he has not seen the server, either. Don't these US Attorney's Office, both part of the US Justice Department, work together? Or do they mostly compete?

   Across Pearl Street at the courtroom of SDNY Judge Batts, which Avenatti was to have appeared at 10:30 am, a signed on the door said that the conference has been adjourned until July 23. (Srebnick says it is "to allow for new counsel in that case to enter his appearance and begin reviewing the discovery.") Instead Judge Batts was taking a surreal and halting guilty plea, with Inner City Press the only media in that large courtroom, of Defendant Augustin Zamora-Vega who could not remember where in the SDNY he had transported drugs.

  Avenatti if nothing else knows his way around the system. So beyond the motion schedule -- August 19 for Srebnick, September 19 for Podolsky and Richenthal with an October 3 reply -- whether this trial actually starts the day after Veteran's Day is anybody's guess. See @InnerCityPress and the news @SDNYLIVE.

   Back at his in person arraignment on the Nike extortion charges against him on May 28, Judge Gardephe asked him about each of the charges, How do you plead?

  "One hundred percent not guilty," Avenatti answered four times, something he expanded slightly on in a question-less press gaggle in Foley Square just after the proceeding. Periscope video here. Alamy photos here.

Judge Gardephe began by disclosing that Assistant U.S. Attorney Robert B. Sobelman had been an intern of his while in law school. Judge Gardephe said this would have no effect. He asked AUSA Matthew Podolsky when the discovery material would begin to be produced.

  As soon as Avenatti's lawyer Scott Srebnick signs a protective order and provides a thumb drive, was the answer. It seems it will be a disk. Judge Gardephe set the next conference for June 18 at noon, an hour an a half after Avenatti and some lawyer are set to appear before SDNY Judge Deborah Batts in the Stormy Daniels case.

Earlier on May 28 before Judge Batts, Avenatti's first move was to have his Miami-based lawyer Srebnick ask to transfer the Daniels case to California.

  The U.S. Attorney for the SDNY's office opposed the request, saying it met none of the Supreme Court's factors for change in venue in the 1964 case Platt v. Minnesota Mining & Mfg. Co., 376 U.S. 240.  Attorney Srebnick's motion to make a motion was denied.

[Assistant U.S. Attorney Matthew Podolsky told Judge Batts he had recently beaten back a similar attempt to delay by bifurcated venue motions. For more, see Patreon, here.]

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