Convicted attorney Michael Avenatti Tuesday won the right to represent himself in his embezzlement trial, slated to begin on Wednesday.
In a surprise move as jury selection was winding down Tuesday, Avenatti asked for a “hybrid” attorney-defendant role to take more of a role in the defense of his case. U.S. District Judge James Selna resisted that, prompting Avenatti then to ask to represent himself with his current attorney, Dean Steward, acting as co-counsel, which Selna approved.
Avenatti finished jury selection of alternates after a panel of five women and seven men was picked, and will be making opening statements and questioning witnesses now with Steward assisting.
Avenatti is charged in a 36-count indictment accusing him of 10 counts of wire fraud, eight counts of willful failure to collect and pay over-withheld taxes, 10 counts of failing to file tax returns, two counts of bank fraud, a count of aggravated identity theft, three counts of a false declaration in bankruptcy and a count of providing false testimony under oath in bankruptcy.
Avenatti faces trial this week on just the 10 counts of wire fraud with the rest of the case to be tried at a later date.
Earlier Tuesday, Selna denied a request for an evidentiary hearing on allegations that a former federal prosecutor has been using social media to comment on the embezzlement case.
Avenatti alleged in the motion that former Assistant U.S. Attorney Julian Andre, who is now in private practice, has been commenting on the case on Twitter. Andre left the U.S. Attorney’s Office earlier this year to become a junior partner at the Century City office of the global law firm McDermott Will & Emory LLP.
Steward said in court papers that the defendant “believes, however, that former AUSA has remained in close contact with the agents, attorneys, and (U.S. Attorney’s Office) staff continuing to prosecute this matter, including in the weeks leading up to trial and since voir dire began on July 13.”
The main objection appears to be Andre retweeting a Los Angeles Times article about the trial that included information about Avenatti’s 30-month sentence in a Nike extortion case and prospective juror comments during jury selection.
“The defense has just discovered that former AUSA Andre has been publicly commenting and promoting misinformation about this case and Mr. Avenatti, including derogatory and prejudicial information about him, through the use of social media,” Steward said in court papers.
“This conduct has spanned months, including in the days immediately before jury selection began and as recently as this weekend (in the middle of jury selection). The conduct is even more egregious because former AUSA Andre has made it a point to make his personal knowledge and involvement in Mr. Avenatti’s case known (including on a recent podcast) and has amplified information to the public and the press that he knows to be questionable at best (if not entirely false) and highly prejudicial.”
Steward argued that federal prosecutors have known about “this misconduct for months … but failed to inform the defense or the court and also appears to have done nothing about it.” The U.S. Attorney’s Office follows Andre on Twitter, Steward noted.
Steward also said Andre appeared on a podcast making “mocking” comments about Avenatti and his “trilogy of cases” and “misstating the facts surrounding the charges.”
Prosecutors are expected to argue that between January 2015 and March 2019, Avenatti ripped off at least five clients of almost $10 million in settlement funds.
Prosecutors laid out the alleged scheme in a trial brief:
“Defendant’s scheme to defraud these victim-clients was simple: first, he would negotiate, on behalf of a client, a settlement that would require the payment of funds to the client; then, he would misrepresent, conceal and falsely describe to the client the true terms of the settlement and/or the disposition of the settlement proceeds; next, he would cause the settlement proceeds to which he was not entitled; and finally, he would lull the client to prevent the client from discovering his embezzlement and misappropriation by, among other things, falsely denying that the settlement proceeds had been paid, sending funds to the client under the false pretense that such funds were `advances’ on the purportedly yet-to-be received settlement proceeds, and falsely claiming that payment of the settlement proceeds to the client had been delayed for legitimate reasons and would occur at a later time.”
One of the alleged victims was Geoffrey Johnson, who was left a paraplegic following a suicide attempt while in Los Angeles County Jail. Avenatti negotiated a $4 million settlement for Johnson and, prosecutors allege, he concealed it from his client, but sent him payments ranging from $1,000 to $1,900 and paid rent at various assisted living facilities for Johnson. Avenatti said the payments were “advances” on the settlement, which he said had not yet been received, prosecutors alleged.
Avenatti is also accused of using millions from one client to pay off creditors and get his firm out of bankruptcy, prosecutors allege.
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