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Day Before SDNY Trial US Insists Avenatti Not Cite Colin Kaepernick Despite Geragos Link

By Matthew Russell Lee, Patreon Thread
BBC - Decrypt - LightRead - Honduras - Source

SDNY COURTHOUSE, Jan 26 – With the trial of Michael Avenatti set to start on January 27, it was decided on January 22 that Stormy Daniel vs Trump can be brought up in opening statements, and in all probability even more during cross-examination of government witness Gary Franklin - but that Colin Kaepernick could not, at least not initially. Live tweeted thread here.

   Judge Paul G. Gardephe of the U.S. District Court for the Southern District of New York declined, however, to postpone the trial for a week. He told Avenatti's lawyers that if they have a problem accessing him in the MCC jail as they have complained, to raise it to him again.

  Now on January 26 the US Attorney's Office has argued against Avenatti's renewed argument to cite Colin Kaepernick: "the defendant asks this Court to permit him both to mention and discuss Colin Kaepernick. (Def. Ltr. 4-5.) However, the Court already ruled that the defendant may not, unless Mr. Kaepernick’s name is on a recording that will be heard by the jury. (See Tr. 149:2-11 (Jan. 22, 2020).) And the defendant acknowledges that Mr. Kaepernick’s name is not on any such recording. (Def. Ltr. 4.) The defendant’s argument is thus effectively a motion for reconsideration. “The standard” for reconsideration “‘is strict and [such a motion] will generally be denied unless the moving party can point to controlling decisions or data that the court overlooked—matters, in other words, that might reasonably be expected to alter the conclusion reached by the court.’” Boyd v. United States, No. 12 Civ. 474 (JSR), 2015 WL 1345809, at *1 (S.D.N.Y. Mar. 21, 2015) (quoting Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995)). The defendant does not come close to meeting this standard. He asserts merely that because, in non-recorded conversations, Mr. Kaepernick’s name may have been mentioned, he should be allowed both to elicit that fact and to make arguments concerning it. (Def. Ltr. 4-5.) That assertion fails for multiple reasons. As an initial matter, that a name may have been used in a non-recorded conversation does not automatically mean that the defendant should be permitted to use it at trial (or that the Government should be permitted to do so), much less make arguments concerning the person named. Put differently, the name “will be featured” (id. at 4) only if the defendant chooses so to feature it. The question is whether the defendant should be permitted to do so. The answer is no. The defendant’s sole argument to the contrary is to state that he purportedly “approached Mr. Geragos, believing that Nike would trust a lawyer as serious as Mr. Geragos (together with Mr. Avenatti) to conduct a legitimate investigation,” because Mr. Geragos had “resolved a case as sensitive as Kaepernick’s with Nike.” (Id. at 5 (emphasis in original).) The defendant cites nothing in support of this purported fact—which is not supported by the defendant’s own text messages with Mr. Geragos, which show that what the defendant cared about was connecting with Nike as soon as possible, not why Mr. Geragos was able to do so. Notably, Mr. Kaepernick’s name does not appear in those text messages. But even if there were some theoretical relevance to Mr. Kaepernick’s name (rather than the nature of Mr. Geragos’s prior relationship with Nike, which can be explained without using the name), it should be precluded under Rule 403 for the reasons previously discussed with the Court.

Rightly or wrongly, Mr. Kaepernick is a controversial figure. Compare, e.g., Heroes of the 2010s: Colin Kaepernick, here (last visited Jan. 26, 2020), with, e.g., NFL Executive: Colin Kaepernick Is ‘A Traitor,” here (last visited Jan. 26, 2020), and, 'He's a racist': Graham rips 'loser' Kaepernick for 'un-American' criticism of Soleimani strike, here (last visited Jan. 26, 2020). And, importantly, his work and relationship with Nike, in particular, again rightly or wrongly, also is controversial. See, e.g., When It Comes to Colin Kaepernick, the Flag and Nike, It’s Just Business, The Wall Street Journal, July 3, 2019, available here; Nike drawn into NFL-Kaepernick dispute over private workout, here (last visited Jan. 26, 2020). That presumably is why the defendant is fighting so hard to use his name, when it is otherwise wholly irrelevant. And it is precisely why the defendant’s argument should be rejected, again "

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      The trial will have a soft beginning on January 27, with a questionnaire being distributed to prospective jurors. The trial should take two and a half weeks, Judge Gardephe said. The case is US v. Avenatti, 19-cr-373 (Gardephe).  


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