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As Avenatti Seeks To Seal Info in SDNY Stormy Case Asks Delay in Nike Sentencing US Agrees

By Matthew Russell Lee, Patreon Song Radio
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SDNY COURTHOUSE, Sept 7 – 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.

 Now in September long after the guilty verdict Avenatti on September 7 asked for a 60 day postponement of sentencing: "Re: United States v. Avenatti, No. S1 19 Cr. 373 (PGG) Consent Motion for a 60-day Adjournment of Sentencing Date and Filing of Sentencing Submissions Dear Judge Gardephe: Mr. Avenatti’s sentencing hearing is currently scheduled for October 7, 2020, having been adjourned twice previously as a result of COVID-19 related challenges. I write to respectfully request a third adjournment of the sentencing date for approximately sixty (60) days, until early December 2020, if the Court’s schedule permits. Mr. Avenatti further requests a corresponding adjournment of the dates for the defense and the government to file their sentencing submissions. The government does not object to this motion. As this Court is aware, on February 14, 2020, a jury found Mr. Avenatti guilty of the three counts charged against him in the Superseding Indictment. At the time, Mr. Avenatti was in custody pursuant to a remand order entered by United States District Judge James Selna of the Central District of California. On April 24, 2020, Mr. Avenatti was temporarily released to home confinement in California at the residence of a friend pursuant to conditions set by Judge Selna in the wake of the COVID-19 pandemic. See United States v. Avenatti, Case No. SA-CR-19-61-JVS (ECF No. 154:7). Mr. Avenatti remains under home confinement in Venice, California. Undersigned counsel (Srebnick) is based in Miami, Florida. On June 24, 2020, Governor Cuomo issued Executive Order 205 (“EO-205”), which requires all travelers to New York from states with COVID-19 infection rates above a certain threshold to quarantine for 14 days upon arriving in New York. Specifically, EO-205 requires “[a]ll travelers entering New York from a state with a [COVID-19] positive test rate higher than 10 per 100,000 residents, or higher than a 10% positivity rate, over a seven-day rolling average” to quarantine for 14 days... As matters currently stand, both Mr. Avenatti and undersigned counsel would be required to travel to New York and quarantine for 14 days before a sentencing hearing in this case. Likewise, any family member who wishes to attend Mr. Avenatti’s sentencing, or any potential sentencing witness, would also be required to quarantine for 14 days. This would place an unnecessary burden on undersigned counsel, Mr. Avenatti, and any attendees from one of the 33 states. Mr. Avenatti’s trial in his second case in the Southern District of New York was scheduled to commence before Judge Furman on October 13, 2020, but was adjourned sine die. See United States v. Avenatti, No. 19 Cr. 374 (SDNY) (JMF) (ECF No. 73). Mr. Avenatti’s trial in the Central District of California is currently scheduled to commence on December 8, 2020, see United States v. Avenatti, 8:19-cr-00061-JVS (CDCA) (ECF No. 171); however, pursuant to General Order 20-09 of the United States District Court for the Central District of California, no criminal jury trials will be conducted until further order of the Court. Thus, a sentencing before this Court during the first week of December 2020 would not pose any conflicts. Moreover, Mr. Avenatti respectfully requests that his sentencing submission be due three weeks before any new sentencing date and that the government’s sentencing submission be due one week after the due date for the defense submission. The trial prosecutors have advised that the government does not object to this request."

 On August 7 in the Stormy Daniels case, Avenatti had motions heard by U.S. District Court for the Southern District of New York Judge Jesse M. Furman. Inner City Press live tweeted it, here.

 On August 27, Inner City Press filed a formal request that documents in the case not be sealed, full filing on Patreon here: "Only this month in SDNY Magistrates Court the content of CJA Form 23s have been read out in the public record, including for the appointment of Federal Defenders. See, e.g., US v. Castro, et al., 20-mj-8994 (Freeman) & here.

 Those and other defendants whose CJA Form 23 and financial information have been disclosed including in Magistrates Court this month had the same arguments as made by Federal Defenders in their August 21, 2020 letter, that the information might be used against them. And yet the other defendants' information was disclosed.

  Here, the sealing(s) and withholding of the CJA Form 23 and affidavit in their entirety go beyond those requested even in the CIA trial before Judge Crotty, US v. Schulte, 17 Cr. 548.    

 In that case, Inner City Press vindicated the public's right to know, in the docket, see here and here.  Inner City Press recently got even more sensitive filings unsealed in a North Korea sanctions case before Judge Castel, US v. Griffith, 20-cr-15 (PKC), Docket No. 33 (LETTER by EMAIL as to Virgil Griffith addressed to Judge P. Kevin Castel from Matthew Russell Lee, Inner City Press, dated 5/18/2020, re: Press Access to documents in US v. Griffith, 20-cr-15), 40 (order to unseal) and 41 unsealed filings). See also Inner City Press' May 9, 2020, filing to this Court for openness in US v. Randall, 19-cr-131,  No. 343.  

The U.S. Supreme Court has recognized that reporting by the news media allows members of the public to monitor the criminal justice system without attending proceedings in person. Richmond Newspapers, Inc. v Virginia, 448 U.S. at 572-73  (1980). By attending and reporting on court proceedings, members of the press "function[] as surrogates for the public." Id. at 573.   Inner City Press has covered the case(s) against Mr. Avenatti for some time, see e.g., May 13, 2020, ESPN Louisville Sports Live, "On this episode of LSL, the guys speak with court reporter, Matthew Russell Lee about the lack of fallout from the evidence exposed about Nike in the Michael Avenatti trial," for example on radio here.

    Inner City Press and I are submitting this a day early in part because we are unsure if the US Attorney's Office will be pushing for openness to the public. In another pending case, US v. Edwards, 19-cr-64 (GHW), the Office had initially said that documents submitted by the defendant (described as the leaker of Paul Manafort's Suspicious Activity Reports) should be put in the public docket. Then, while Inner City Press is pursuing that, the US Attorney's Office has stopped pushing. So, just to preview, we may seek leave to sur-reply depending on what not only the defendants / Federal Defenders but also the US Attorney's Office have to say.   

 Respectfully submitted, /s/ Matthew Russell Lee, Inner City Press."

  On August 28 Judge Furman entered an order: "The Court received the attached communication from Matthew Lee of Inner City Press “seeking leave to be heard and for the unsealing of the CJA Form 23, affidavit, and all associated documents” relating to this litigation. To the extent that Mr. Lee (who is admitted to the bar of the Southern District of New York) seeks leave to be heard, his application is GRANTED. The Court reserves judgment on the question of whether Defendant’s CJA Form 23 and related documents should be unsealed. SO ORDERED. Dated: August 28, 2020 New York, New York JESSE M. FURMAN." Docket No. 85, on Inner City Press' DocumentCloud, here.

  Now on September 2 Federal Defenders, rather than attempt to explain why they routinely divulge and put in the public record the financial information of less high profile and lower income clients, stating in Magistrates Court exactly how much their clients make and where they and even their spouses work, has written in this: "The defense acknowledges that the Court granted Matthew Lee, a representative of “Inner City Press,” leave to be heard on this matter. The defense requests leave to respond to Mr. Lee one week from the timely filing of any substantive brief or letter. For now, it bears emphasizing that the Court’s measures requiring the Federal Defenders to keep an accurate record of the hours spent on Mr. Avenatti’s defense, and also requiring Mr. Avenatti to regularly update the Court on his finances, are sufficient to protect the public fisc and to ensure that funds for court-appointed counsel are being properly spent. Further, “neither the First Amendment nor the common law provides a right of access to financial documents submitted with an initial application to demonstrate a defendant’s eligibility for CJA assistance.” In re Boston Herald, Inc., 321 F.3d 174, 191 (1st Cir. 2003). And “even if there were a common law presumption of access, then it would be outweighed here … by [Avenatti’s] countervailing privacy interests” and rights under the Fifth and Sixth Amendments. Id."  Full letter on Patreon here. It is UNacceptable -- the public's and press' right of access is not limited to the public fisc, it is based on the FIRST Amendment.  We'll have more on this, once the situation becomes clearer.

And later the US Attorney's Office said, " in light of the presumption of openness in criminal proceedings and the approach favored by the Second Circuit, the defendant has failed to provide a legally sufficient basis for wholesale and indefinite sealing of the CJA 23 Form and supporting affidavit." Full letter on Patreon here. Now we await Avenatti's / his Federal Defenders' reply. Watch this site.

This case is US v. Avenatti, 19-cr-374 (Furman).


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