The Volokh Conspiracy

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Michael Avenatti's Post-Trial Motions Denied


I know nothing about the subject, and despite that have no opinion. But I thought I'd pass along Judge Paul Gardephe's decision, handed down yesterday, in case some of you find it interesting. The opening:

Michael Avenatti is charged in the (S1) Indictment with transmitting interstate communications with intent to extort, in violation of 18 U.S.C. § 875(d) (Count One); Hobbs Act extortion, in violation of 18 U.S.C. § 1951 (Count Two); and honest services wire fraud, in violation of 18 U.S.C. §§ 1343 and 1346 (Count Three). The Government charges that Avenatti—who is licensed to practice law in California—transmitted in interstate commerce threats "to cause financial harm to Nike and its reputation if Nike did not agree to make multimillion dollar payments to Avenatti"; "used threats of economic and reputational harm in an attempt to obtain multimillion dollar payments from Nike"; and used interstate communications to "engage[ ] in a scheme to obtain payments for himself from Nike based on confidential information provided to Avenatti by [client Gary Franklin] for the purpose of furthering Avenatti's representation of [Franklin], without [Franklin]'s knowledge or approval," thereby depriving Franklin of the "duty of honest services" he was owed.

Avenatti proceeded to trial on January 27, 2020. After a three-week trial, on February 14, 2020, the jury returned a verdict finding Avenatti guilty on all counts.

Avenatti has moved for a judgment of acquittal or a new trial, pursuant to Rules 29 and 33 of the Federal Rules of Criminal Procedure. Avenatti argues that (1) the evidence at trial is insufficient to prove that he acted "wrongfully" and with "intent to defraud"; and (2) the statutes under which he was convicted are unconstitutionally vague-as-applied. Avenatti also contends that this Court erred in (1) excluding certain text messages and emails; and (2) responding to a jury note regarding permissible inferences from exhibits admitted to show state of mind.

In a June 4, 2021 letter, Avenatti moves to compel the Government to produce Section 3500 material and alleged Brady/Giglio material concerning Judy Regnier, a Government witness at trial. In a July 5, 2021 letter, Avenatti moves for a new trial on the same basis. In his June 4, 2021 letter, Avenatti also raises concerns regarding press access to voir dire.

For the reasons stated below, Avenatti's post-trial motions will be denied.