Just days after convicted attorney Michael Avenatti is scheduled to be sentenced on the East Coast for an extortion scheme against shoe-making giant Nike, jurors in Santa Ana will begin filling out questionnaires about their availability to hear evidence of his alleged fraud in Orange County, a judge said Monday.
Avenatti, who shot up to fame while representing adult film actress Stormy Daniels in a dispute with former President Donald Trump over a nondisclosure agreement, made his first personal appearance Monday in a Santa Ana courtroom since the pandemic-induced lockdowns last year.
Avenatti, who is fully vaccinated, will have the option of whether to wear a face covering during his trial, which is set to begin next month, U.S. District Judge James Selna said.
Avenatti is scheduled to be sentenced in the Nike case on July 8 in New York, then will be immediately brought back to Orange County to face trial on allegations of cheating his clients out of settlement money to pay his bills as expenses began outstripping his profits.
Selna said he wanted to give the pools of hundreds of prospective jurors a few days for the “market to absorb the news” of Avenatti’s punishment in the Nike case before attorneys begin questioning them about their availability to hear evidence.
Jurors will not hear about Avenatti’s lifestyle spending. In a tentative ruling, Selna said such evidence of a “lifestyle of luxury, flash and glamour” would be more “prejudicial than probative.”
Selna added, “This includes specifically cars and apartment rent. While such evidence may support a finding of motive, it reeks of classism. The government’s efforts to show that `he was jet-setting around the world, dining at fancy restaurants making expensive purchases, and otherwise projecting a life style and wealth’ falls into the same category.”
Selna said the prosecution’s “own description of its evidence presents such fascinating sparkle that the jury is likely to be diverted from, and prejudiced it in addressing, its main inquiry: Did Avenatti divert funds to which he was not entitled.”
Jurors will hear of Avenatti’s debts at the time of his alleged embezzlement, Selna ruled.
Assistant U.S. Attorney Brett Sagel accused Avenatti of delay tactics in the scheduling of his sentencing in New York and the trial in Santa Ana, but Selna advised the prosecutor to pass on the information to the federal judge in New York.
Selna said it would not make much difference in the timing of the Orange County trial. Instead of bringing in jurors 150 at a time, each pool of prospective panelists will be in groups of 50 to allow for social distancing in the courtroom.
The judge acknowledged changes in requirements for face coverings indoors for fully vaccinated residents, who don’t have to wear them if they don’t want to, and the cessation of social distancing. But Selna said his courtroom would observe the prior requirements for social distancing, with some attorneys and reporters having to watch the trial in an adjoining room through a televised feed.
“I’m not going to endanger (jurors’) health,” Selna said. “Vaccines are great, but they’re not a silver bullet. You can still get it.”
He added, “Unless everyone is vaccinated, we’re going to observe social distancing.”
Avenatti’s attorney, Dean Steward, has a motion pending before another federal judge in Santa Ana challenging the requirement of face coverings for prospective jurors. Steward argues that it makes it more difficult for attorneys in picking jurors since they cannot see their entire expression. The defense attorney, whose motion is scheduled to be heard next month, said he wanted prospective jurors unmasked during jury selection.
If Avenatti “wants to wear his mask, fine. I’ll tell jurors it’s a health issue,” Selna said.
Witnesses will take off face coverings while testifying with a shield installed for protection “so you can see their expressions, their faces,” Selna said.
Attorneys are expected to begin questioning jurors July 13, with opening statements in the trial set for July 20.