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In Stormy Daniels Trial US Invites Avenatti to Testify About His Quantum Meruit Beliefs But Not Too Much

By Matthew Russell Lee, Patreon Song Radio
BBC - Decrypt - Podcast - Order Affidavit

SDNY COURTHOUSE, Jan 30 – Michael Avenatti's financial affidavit to get a publicly paid lawyer for his Stormy Daniels case, which Inner City Press formally sought to have unsealed for eleven months, were on July 27, 2021 ordered unsealed. Order.
Podcast here. Aug 13 podcast here.

  On the weekend before trial there's was a request to delay it, on COVID policy and Constitutional grounds. It was denied.

 The trial started on the morning of January 24. Inner City Press live tweet here. It continued in the afternoon, with Stormy Daniels' literary agency Lucas Janklow being cross examined about being introduced to Michael Avenatti at a hotel bar, by Anderson Cooper. Inner City Press live tweeted, thread here; stream here, video here

 On Saturday July 29 Judge Jesse M. Furman docketed an order criticizing Avenatti for not providing the list of his witnesses and ordering that it be done by 10 pm Saturday: "ORDER as to Michael Avenatti: As discussed on the record yesterday, Mr. Avenatti was required, no later than 5:00 p.m. yesterday, to disclose to the Court and the Government the witnesses that he intends to call on Monday. He does not appear to have done so. To facilitate the timely litigation of any motions by the Government to preclude, Mr. Avenatti shall disclose to the Court and the Government a *complete* list of *all* witnesses he proposes to call as part of a defense case no later than 10 p.m. TONIGHT. SO ORDERED. (Signed by Judge Jesse M. Furman on 1/29/2022) (Text Only Order)(Furman, Jesse)."

  Avenatti wrote in by the deadline, saying a list had been provided to the US Attorney's Office but not the court. The list is: "Witness List: 1. John Dean Barrale 2. Carlos Colorado 3. Glendon Crain 4. John Drum 5. Jason Fischer 6. Luke Janklow 7. David Karbley 8. Justin Loupe 9. Richard Marshack 10.Denver Nicks Mr. Avenatti reserves the right to testify."

Soon after, the US Attorney's Office filed seeking to preclude at least three: " The defendant intends to call Justin Loupe, David Karbley, and Jason Fischer at trial on Monday. The Government expects that Mr. Loupe would offer further testimony about Ms. Daniels’s beliefs in the paranormal, Mr. Karbley would describe an unrelated dispute with Ms. Daniels, and Mr. Fischer would provide the foundation for introduction of an irrelevant text exchange between the defendant and Sean Macias. Each of these witnesses should be precluded from testifying at trial."

Early on Sunday, January 30, Judge Furman issued an order listing six witness who who not testify Monday, if ever: "ORDER as to Michael Avenatti: In light of the Court's Orders at ECF Nos. 323 and 324, and the related pending motions, Mr. Avenatti should be prepared to call witnesses other than Mr. Barrale, Mr. Colorado, Mr. Janklow, Mr. Fischer, Mr. Karbley, and Mr. Loupe to testify on Monday, January 31, 2022. Accordingly, Mr. Colorado need not travel to New York City on January 30, 2022. SO ORDERED. (Signed by Judge Jesse M. Furman on 1/30/2022)."

  Later on Sunday, January 30 the US Attorney's Office put in a letter seeking to preclude in advance Avenatti, if it takes the stand, from testifying about the possible motives of the prosecution. The US wrote: "the defendant—should he testify—should be precluded from offering any  commentary or other testimony regarding the Government’s motivation or decision-making  regarding the bringing of charges against the defendant, the Government’s selection of  investigative steps, or discovery-related matters (in this case, the prior case in which the defendant  was convicted, or the pending case in the Central District of California). The defendant has  repeatedly attempted to put these matters before the jury through improper questioning of  witnesses, and the defendant’s claims and insinuations on these topics are both without any factual  basis and entirely irrelevant and improper under the Rules of Evidence, as the Court has previously  explained. A. Background As the Court is aware, the defendant was previously convicted of extortion and honest  services fraud in United States v. Avenatti, No. 19 Cr. 373 (PGG). The evidence admitted at that  trial proved beyond a reasonable doubt that the defendant wrongfully used confidential  information obtained from a client in a failed effort to extort NIKE, Inc." Full letter on Inner City Press' DocumentCloud here.

After getting an extension from 5 pm to 7 pm on Sunday, January 30, Avenatti at deadline argued that "Defendant should be permitted to call each of  the five witnesses as scheduled and mount his defense. Based on the following, defendant  respectfully requests that the Court deny Carlos Colorado and John Barrale’s Motions to Quash... Full letter on Inner City Press' DocumentCloud here.

  Later still on January 30, the US wrote in on quantum meruit, and invited Avenatti to testify: "Although the defendant is wrong that he was entitled to take Ms. Daniels’s book payment  under the law of quantum meruit, a mistaken belief about his legal rights could support a good  faith defense. The Government is required to prove that the defendant had the requisite mens rea,  including that he acted with a wrongful purpose. (See Letter Mot. on Willfulness, Dkt. No. 311).  Good faith is a “complete defense to charges of wire fraud.” United States v. Dupre, 462 F.3d  131, 139 (2d Cir. 2006). The defendant therefore should be permitted to testify about his purported  belief that quantum meruit permitted him to take Ms. Daniels’s money to support an argument  that he acted in good faith. 3 The Court should carefully circumscribe the defendant’s testimony, however, and provide  an appropriate instruction both at the time of the testimony and in the jury charge regarding the  correct law, so as to avoid confusing and misleading the jury. First, while the defendant may  describe the bases for his beliefs at a very high level, he should not be permitted to offer  documentary evidence, delve deeply into legal theory that may confuse the jury and usurp the  Court’s role." Full letter on DocumentCloud here.

Watch this site - and this Inner City Press song:


On January 25, the cross examination of Janklow continued, then an SDNY Special Agent and Avenatti law firm staffer. But in the middle, Federal Defenders said Avenatti may want to fire them and represent himself. Judge Furman said, Not so fast. Inner City Press live tweeted it, thread here

  In the afternoon of January 25, Avenatti confirmed he wants to represent himself and Judge Furman granted it. He will cross examine Stormy Daniels, then. Inner City Press live tweeted it, thread here and below.

On the morning of January 26, podcast here, Avenatti cross examined Regnier than an FBI agent. Inner City Press live tweeted, thread here.

 On the afternoon of January 26 Avenatti cross examined Sean Macias who hooked him up with Garagos, before those two double teamed Nike. Inner City Press live tweeted it, thread here.

 On the morning of January 27, after the end of Macias and another SDNY witness, Stormy Daniels took the stand to begin direct examination. Inner City Press live tweeted it here.

 On the afternoon, at the end, Avenatti began his cross examination. Inner City Press live tweeted the afternoon, here.

On January 29, Avenatti's cross examination continued, to two videos, thread here.

In the afternoon Avenatti got into, or tried to get into, Trump; afterward Inner City Press asked him about the case - and the Supreme Court. Thread here.

Avenatti-Watch a/k/a Foley Square Follies. here.

more stream here, video here

  Judge Furman released his juror questions, asking each side to respond by January 19 at 10 am. The questions include: "Based on anything that you have read, seen, or heard about Mr. Avenatti, have you  formed any opinions about Mr. Avenatti that might make it difficult for you to be a fair  and impartial juror in this case?  10. Would you have any trouble following my instructions to put anything you may have  read, seen, or heard about Mr. Avenatti out of your mind and decide this case based only  on the evidence presented at trial?  11. Do you or does any member of your family or a close friend personally know or have  past or present dealings with the alleged victim in this case, Ms. Clifford (also known as  “Stormy Daniels”), or with any of her family members?...

"Do you know or have you heard of any of the following people or entities, which include  the lawyers in this case, people who may testify at the trial, and other names that may be  mentioned during the course of the trial?  • Pamela Baez • Elizabeth Beier • Thomas Bolus • Clark Brewster • Christine Carlin • Michaela Catando (also known as  Kayla Paige) • Dmitri Chitov • Dwayne Crawford • Jennifer Donovan • Anna Finkel • Mark Geragos • Jack Guiragosian • Holtzbrinck Publishers • Luke Janklow • Janklow & Nesbit Associates • Geoffrey Johnson • Global Baristas • Sean Macias • Macmillan Publishers • Susan McClaran • Benjamin Meiselas • Travis Miller • Mareli Miniutti • Erik Nathan • Denver Nicks • Kevin Carr O’Leary • David Padilla • Brandon Parraway • Pro Tech Security and Automation • Judy Regnier • Sally Richardson • Security and Automation LLC • St. Martin’s Press • Enrique Santos • Jessica Volchko • Juliet Vicari • Donald Vilfer 25. Are you familiar with anyone else present in the courtroom, including your fellow jurors,  all Court personnel, and myself?"

On October 14 Judge Furman held a proceeding in the Stormy Daniels case and Inner City Press live tweeted it here and podcast here

SDNY

On August 10 Avenatti's Federal Defenders filed a copy of the affidavit with multiple redactions. The form refers on nearly every question to an attachment, which is blacked out in absurd ways. It reads, for example, "I own stock in two closely held companies that may have value: (a) [REDACTED] located in [REDACTED] and (b) [REDACTED] located in [REDACTED]... I technically still have an interest in a private aircraft (model: HondaJet 420) that was seized by the IRS and is still in their possession. This interest is held through a single-purpose entity named [REDACTED]," and so forth.

Inner City Press  published the redacted affidavit on its DocumentCloud here and asked, Will the Court be accepting this?

On August 11, the correct answer was: No. "MEMO ENDORSEMENT as to Michael Avenatti (1) on [139] LETTER MOTION re: [139] LETTER MOTION addressed to Judge Jesse M. Furman from Robert Baum, Tamara Giwa & Andrew Dalack dated August 10, 2021 re: Letter Motion In Response to Court's Order to File Financial Affidavit. ENDORSEMENT: The Court is unpersuaded that privacy interests justify redacting the names and locations of the corporate entities in Paragraphs 14, 15, and 17 of ECF No. 139-1."

  After hours on August 12, some redactions were removed: Avenatti's owned a plane through Passport 420 LLC; an unnamed "non-family-member acquaintance" paid a NY-based attorney in the Nike case, whose name is redacted. Unredacted: Avenatti owns stock in Tyrian Systems (aka Seek Thermal) of Santa Barbara, CA and Centurion Holdings I, LLC of St. Louis Missouri."

 Not so fast. Inner City Press research in the hours after the removal of the improper redactions found that Centurion Holdings I, LLC is based in Arnold, Missouri - and "received a PPP loan of $60,477 in May, 2020." That's the Paycheck Protection Program; the funds came through the Central Bank of St. Louis.

Bigger, the aka: "Seek Thermal, Inc of  6300 Hollister Ave in Goleta, California received a Coronavirus-related PPP loan from the SBA of $1,365,062.00 in April, 2020." We'll have more on this.

 Watch this site.

 On August 27, Inner City Press filed a formal request that documents in the case not be sealed, full filing on Patreon here.

  On November 12, Inner City Press made a third filing with Judge Furman, on a decision to unseal issued earlier in the day by SDNY Judge J. Paul Oetken after Inner City Press filed to similarly unseal Lev Parnas' co-defendant David Correia's financial infor: "we again ask, why should lower income and less high profile defendants in the SDNY -- and now David Correia -- have their financial information so disclosed while Avenatti's information is sealed in its entirety? The documents at issue should not be sealed and should be made available."

  On August 28, 2020 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.

  On July 27, 2021, Judge Furman four times citing Inner City Press ordered Avenatti's affidavits unsealed: "Avenatti filed a letter brief arguing that the Initial Financial Affidavit should remain under seal. ECF No. 80 (“Def.’s Mem.”). Thereafter, the Court received submissions from Inner City Press, a media outlet that intervened to seek disclosure of the Financial Affidavits, ECF Nos. 85, 90, 99... The Defendant initially argued that the Government lacked standing “to assert any right on behalf of the public to access Mr. Avenatti’s sworn financial statements.” Def.’s Mem. 7 n.1 (citing United States v. Hickey, 185 F.3d 1064 (9th Cir. 1999)). Subsequently, however, the Court granted leave to Inner City Press to be heard on the Defendant’s motion, ECF No. 85, which indisputably does have standing to assert such rights." Full order here, filings due August 10. Watch this site.

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

sdny

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