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In Avenatti Stormy Case Trial Set For April With Financial Affidavit Still Sealed

By Matthew Russell Lee, Patreon Song Radio
BBC - Decrypt - LightRead - Honduras - Source

SDNY COURTHOUSE, Nov 10 – 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 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.

  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 November 10, with the Avenatti submissions still sealed, he appeared with "with attorneys Robert Baum, Tamara Lila Giwa, and Andrew John Dalack. AUSAs Matthew Podolsky and Robert Sobelman present. Court reporter present. -- Pursuant to Fed R. Crim. P. 5(f), the Court reminded the Government of its obligations under Brady v. Maryland and its progeny. -- Trial is scheduled for April 21, 2021 and is expected to last 2 weeks. Time is excluded in the interests of justice from November 11, 2020 until April 21, 2021. (ab)." The above is the Order; others reported the trial as April 26.

  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. 

  Hearing nothing more, but continuing to closely cover all things SDNY, on September 8 Inner City Press filed again: "Re: US v. Avenatti, 19-cr-374 (JMF) - Further on the need to unseal CJA Form 23 and associated documents including affidavit 

Dear Judge Furman:     Pursuant to this Court's August 28, 2020 Order granting leave to be heard, and in response to Federal Defenders' September 2 (footnote) response), this is a further argument for the unsealing of the CJA Form 23, affidavit and all associated documents in US v. Avenatti, 19-cr-374 (JMF).   

  Before citing case law, Inner City Press which closely covers SDNY criminal proceedings notes that just today, before SDNY Magistrate Judge Barbara Moses, the financial situation of defendant Jonathan Smith was fully disclosed on the record.

To obtain CJA counsel it was disclosed that Mr. Smith of The Bronx received $471 a week in unemployment, and pays $150 to $200 a month in child support of each of his three children, and $65 a month for cell phone service. See, US v. Smith, 20-cr-317 (Swain / Moses).    

We again ask, why should lower income and less high profile defendants in the SDNY have their financial information so disclosed while Avenatti's information is sealed in its entirety? 

  Avenatti in his other SDNY case, in which he was convicted by a jury, has requested another adjournment of sentencing, to December.   

 On September 10, Federal Defenders responded, saying that the disclosure of the Bronxite and Massachusetts drug defendants' information is somehow different than for Avenatti, who is apparently in their view due great privacy and protection. Then they threaten to appeal if Judge Furman rules for transparency: "RE: United States v. Michael Avenatti 19 Cr. 374 (JMF) Dear Judge Furman: We write to briefly respond to the letter submitted on behalf of Inner City Press by Matthew R. Lee requesting the unsealing of Michael Avenatti’s CJA 23 Form and accompanying affidavit. See Dkt. No. 90. Neither the public nor the media have a presumptive right to access the financial documents of a defendant who seeks court-appointed counsel under the Sixth Amendment. In re Boston Herald, Inc., 321 F.3d 174, 191 (1st Cir. 2003) (“[N]either 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.”). And as discussed more thoroughly in Mr. Avenatti’s previous letters, any such common law or First Amendment interest is trumped by the real and appreciable risk of self-incrimination Mr. Avenatti faces should his sworn statements about his financial condition be made available to the government or publicly.1  1 As set forth in Mr. Avenatti’s reply to the government’s response in opposition to keeping his sworn financial statements sealed, the court in the Central District of California presiding over a different case against him has sealed Mr. Avenatti’s application for court-appointed counsel under Ninth Circuit precedent and local rules. Accordingly, Mr. Avenatti respectfully requests that the Court stay any order to unseal those same documents in this case so that he may pursue appropriate appellate relief."

We'll have more on this, once the situation becomes clearer - it is not clear if Inner City Press is permitted to surreply to this. It should not be necessary. The courts should be transparent, and defendants should be treated equally.

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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