| In Nike Extortion Trial
Judge Gardephe Answer on State of Mind
Objected To By Avenatti
By Matthew
Russell Lee, Thread
Song
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SDNY COURTHOUSE,
Feb 14 – In the countdown of
the US v. Michael Avenatti
Nike extortion trial, on
February 10 the charging
conference was held, until
7:10 pm. See Patreon here.
On February
12, after the reading of a
slightly tweeked jury charge,
the jury got the case to
deliberate. On February 13,
things got confusing, or
confused. The jury asked a
number of questions, some of
which Judge Paul G. Gardephe
expressed frustration at. He
told the jury they could leave
for the day but to clarify one
of its questions, about
recording(s) of the March 21
meeting involving Avenatti.
Before
that the dispute concerned the
jury's question about what
inferences they can draw from
evidence allowed in to show
state of mind. Judge
Gardephe's answer to the
question drew this objection
from Avenatti's lawyer Scott
Srebnick early on February 14:
"Dear Judge Gardephe: In
response to the jury’s
question 1.B on February 13,
2020, the Court, over defense
objection, instructed the jury
that “You can draw inferences
from exhibits that were
admitted to demonstrate state
of mind, but only as to state
of mind. Exhibits received
without any limitation may be
considered by you for all
purposes, including for their
truth. But where I admitted an
exhibit for purposes of
demonstrating state of mind,
that exhibit can only be
considered for purposes of
state of mind, and not for the
truth of the statements that
were made in that exhibit.”
The Court then
re-read additional
instructions from pages 10-11
of instructions previously
given. Mr. Avenatti
respectfully submits that the
jury should be permitted to
draw inferences from “state of
mind” documents beyond just
“state of mind,” namely, that
the declarant then acted upon
the state of mind. [See]
United States v. Best, 219
F.3d 192, 198 (2d Cir.
2000)...
Thus, for
example, when Mr. Auerbach
texted Coach Franklin that
“[w]e will appeal to their
sense of justice and duty.
Also the opportunity to really
light the next fuse
(Racketeering) in the Sneaker
Company Scandal, and answer a
BIG question which NIKE will
not want asked, WHY HASN’T THE
DOJ INDICT EXECS AT NIKE WHO
COMMITTED THE SAME CRIMES?!!
WHY JUST ADIDAS?! There’s a
lot at play here for a guy
like Avenatti…,” the jury may
draw the inference that, in
fact, Auerbach did communicate
to Mr. Avenatti the
“opportunity to really light
the fuse…” See Def. Exh. FF-1.
Similarly, the jury may draw
the inference that Mr.
Auerbach did in fact “devise a
strategy that goes after Nike”
and seek to “expose[]” Nike.
Def. Exh. FF-1. Accordingly,
Mr. Avenatti respectfully
requests that the Court
further instruct the jury as
follows before they resume
their deliberations: 'I
instruct you that from state
of mind documents, you may
draw inferences, including an
inference that the person who
made the statement thereafter
acted in accordance with the
stated intent.'" Inner City
Press will stay on the case.
Another
question had a simple answer.
Is a filing of a lawsuit
request in order to reach a
settlement agreement? The
answer was and is No. Day's
live-tweeted thread here.
More on Patreon here.
There is
much prognosticating about
what the questions mean,
whether or not they are good
for the defense. For now,
here's audio of a question and
answer Inner City Press did on
the evening of February 12
with ESPN Louisville, here.
More
on Patreon here.
The day before on
February 12 the jurors emerged
in late afternoon to request
to hear one of the Avenatti
phone calls (Inner City Press
has put them on Soundcloud here
and here
and a song here),
and requesting text messages
between Gary Franklin and
Jeffrey Auerbach.
More on Patreon here.
On
February 11, over hours, the
closing arguments were held.
Inner City Press live-tweeted
them, in 96 installments, here.
Assistant
US Attorney Matthew Podolsky
led off with the now famous
"have you held the clients
balls in your hands" audio,
and went on from there.
Avenatti's
lawyer Scott Srebnick covered
the case focusing on the
desired and goals of client
Gary Franklin and his
consultant Jeffrey Auerbach.
His brother
Howard Srebnick followed with
the case from the perspective
of Avenatti in New York,
saying he was carring out
Franklin's stated desire to
"light the fuse" for justice.
AUSA
Daniel Richenthal derided that
narrative, and told the jury
it didn't matter that Mark
Geragos, much less Nike, were
not charged. But might it,
when the jury begins to
deliberate on February
12? More on Patreon here.
Next
are the jury charge and
deliberations - and verdict.
Watch this platform. US v. Avenatti,
19-cr-373 (Gardephe).
***
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