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In Nike Extortion Trial Judge Gardephe Answer on State of Mind Objected To By Avenatti

By Matthew Russell Lee, Thread Song Patreon
BBC - Decrypt - LightReading - ESPN Radio

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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