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In Nike Extortion Trial US Calls Avenatti Bid To Admit Franklin Statements Without Merit

By Matthew Russell Lee, Patreon Song Thread
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SDNY COURTHOUSE, Feb 4 –  When after three days of jury selection the trial of Michael Avenatti for allegedly extorting Nike began on January 29, 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 1st day on Patreon here.

 On the evening of February 4, the US Attorney's Office wrote in opposition to Avenatti's requests and cases: "The Government respectfully writes in brief response to the defendant’s claim, made earlier today in court, that he should be permitted to offer out-of-court statements of Jeffrey Auerbach (or Gary Franklin, Sr.), never seen by or shared with the defendant, to prove the then-existing state of mind of Mr. Auerbach under Federal Rule of Evidence 803(3), in support of which the defendant has just emailed Your Honor’s law clerk three cases, United States v. Schultz, No. 14 Cr. 467, 2017 WL 2080348 (N.D. Ill. May 15, 2017), United States v. Harwood, 998 F.2d 91 (2d Cir. 1993), and United States v. DiMaria, 727 F.2d 265 (2d Cir. 1984). The defendant’s claim is without merit. To be admissible on this basis, an out-of-court statement must be relevant to a then-existing state of mind or intent regarding a relevant fact. See, e.g., United States v. Lesniewski, No. 11 Cr. 1091, 2013 WL 3776235, at *5 (S.D.N.Y. July 12, 2013). Moreover, this exception to the hearsay bar only permits the limited admission of statements of future intent, not those concerning past intent and/or motive.... Moreover, it [sic] questionable, at best as to whether the text messages at issue demonstrate a “state of mind” at all, rather than assert facts concerning, for example, what NIKE, Inc. allegedly did or did not do. And even if they did so demonstrate, at least as to Mr. Auerbach, they are cumulative of testimony that has already been given.

 Although the Government has only had limited time to review them, the three cases cited by the defendant in his email to Your Honor’s law clerk a few minutes ago are not to the contrary. Rather, two of the three (DiMaria and Schultz) concern statements offered to prove the defendant’s own state of mind, which is, of course, relevant. And the third case (Harwood) affirms preclusion of the out-of-court statements of another person, explaining that they were offered “to support an inference about conduct that had occurred five months earlier,” and that “[t]o admit such statements “would significantly erode the intended breadth of this hearsay exception.” 998 F.2d at 98 (internal quotation marks omitted). So too here."

  Earlier on February 4, after a day of cross examination and re-direct of Gary Franklin's adviser Jeffrey Auerbach, AUSA Sobelman after the jury left complained to Judge Paul G. Gardephe, "The defendant is extremely loud," referring to his remonstrating on which Inner City Press reported yesterday.

  Judge Gardephe said, I haven't heard anything. But this is an issue that came up before. I will ask Mr. Avenatti's lawyers to speak to him. I'll have to pay more attention to the defense table. We can't have the jury hearing exchanges between Mr. Avenatti and his attorney. I'll have to intervene."

And then Avenatti spoke up for himself: "I'll be conscious of my voice. I have a lot at stake, everyone knows that." Inner City Press tweet of that here; day's thread here.

   Inner City Press will continue to cover the trial, as much as possible. Today's afternoon radio here. More of Patreon here.

  On February 3, Gary Franklin's pro bono consultant Jeffrey Auerbach took the stand. Inner City Press was in the courtroom's second row when Assistant US Attorney Robert Sobelman walked Auerbach through testimony about Avenatti saying he was headed to New York on a red-eye to get $1 million for Gary Franklin.

  As Auerbach gave his opinion, Avenatti vigorously shook his head, with hair on the sides above the ears. He took notes that apparently went into the cross examination, to which Sobelman repeatedly objected. Finally Judge Gardephe said, You are objecting to a document you the prosecutors put into the record. Again the payments to Deandre Ayton, mother and handler Melvin McDonalnd, to Bol Bol and to Shaun Manning Brandon McCoy came up. People wanted to know more but there are limits. More on Patreon here.

  On January 31 Inner City Press published the March 25, 2019 draft settlement agreements, with dollar figure left blank, here on Scribed and on Patreon for download here, as well as the more than one hour video of Avenatti's and Mark Geragos' meeting with Nike's outside counsel, Scott Wilson of Boies Schiller, here.

  Inner City Press has also published three audio records of Wilson's conversations on March 20, 2019 with Geragos, and Avenatti, saying "I'm not f*cking around." Audio I, II and III. More including transcripts on Patreon here.

  We will have more on this, here and on Patreon.

   Inner City Press live-tweeted the start of the proceedings, here, and since and will have more. More on Patreon here. The case is US v. Avenatti, 19-cr-373 (Gardephe).


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