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Avenatti Appealing Nike Guilty Verdict Argues California Law Allows It Contesting Restitution

By Matthew Russell Lee, Patreon Song Radio

SDNY COURTHOUSE, Jan 19 – When after three days of jury selection the trial of Michael Avenatti for allegedly extorting Nike began, 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 that first day on Patreon here.

Into the docket on July 6, 2021, Judge Gardephe's 96 page order denying all of Avenatti's post-trial motions, concluding: "if Avenatti believed – prior to trial – that press access to voir dire presented a risk to his right to receive a fair trial, it was necessary for him to make an application  to restrict press access to voir dire, so that this Court could perform the balancing analysis  discussed in Stewart, 360 F.3d 90, United States v. King, 140 F.3d 76, 80-81 (2d Cir. 1998), and  Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 14 (1986). Because he made no such  application, this Court was never called upon to conduct such an analysis. In sum, Avenatti’s belated complaints about press access to voir dire provide no  basis for this Court to disturb the jury’s verdict.  CONCLUSION For the reasons stated above, Defendant’s post-trial motions are denied. The  Clerk of Court is directed to terminate the motions." Full order on Inner City Press' DocumentCloud here.

Jumpt cut to January 19, 2023, when the Second Circuit heard arguments on Avenatti's appeal of his Nike conviction. Inner City Press live tweeted it, thread here:

OK - now Avenatti appeal in 2d Circuit. His (publicly paid) Federal Defender Daniel Habib is arguing for him

Judge Raggi: The government is pointing us to the fact that Nike could have not hired Avenatti and still paid him. How could the jury not find that extortionate?

Avenatti's lawyer: It would have been Nike's decision-

Judge Raggi: But it was not a good faith offer

 Avenatti's lawyer: Mr. Franklin would have gotten $1.5 million. And Mr. Avenatti could have brought the other employees' conduct to the attention of Nike. Judge Raggi: What about "pay me double"? Avenatti's lawyer: Garagos was initially named in the complaint

Avenatti's lawyer: SDNY was investigating Nike -- Judge Walker: How does that go to the doubling of fees? Avenatti's lawyer: It was a disincentive to fire a lawyer other than Avenatti. Even if it was a bald request for fees, it was authorized by California law

 Judge: Avenatti offered to ride into the sunset for $22.5 million. Avenatti's lawyer: That wasn't for him. Judge: Who was it for? Avenatti's lawyer: Mr. Franklin. Mr. Avenatti left it up to Nike. Judge: Avenatti said it made no sense to pay so much to Franklin

Judge Raggi: I don't understand California to say that a lawyer in settling his client's claim can solicit work from the defendant and then be representing them. Avenatti's lawyer: It could be done with consent. Judge Raggi: But Mr. Franklin didn't consent.

 Judge Raggi: Who would've Avenatti been serving, in doing an investigation for Nike? Tell me how California permits this. Avenatti's lawyer: We put in evidence from a legal ethics expert. Judge Raggi: This is, charitably, a curious negotiation.

 Judge Raggi: Mr. Avenatti made sure to try to guarantee himself $12 million even if he did not work. Avenatti's lawyer: But he would have done more for $15 million.

Now AUSA Matthew Podolsky: Avenatti's was a request for a bribe, and that is a crime. App at 640.

But wait there's more:

Avenatti's lawyer: The restitution order should be vacated.  Judge: We'll take the case under advisement.

The Nike case was US v. Avenatti, 19-cr-373 (Gardephe).

The appeals are 21-1778-cr and 22-351-cr


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