A federal judge in Santa Ana Friday put the retrial of attorney Michael Avenatti on hold indefinitely as he attempts to get his case thrown out by federal appellate judges based on an argument of double jeopardy.
A retrial of Avenatti was scheduled for Nov. 2, but U.S. District Judge James V. Selna vacated that trial date, saying the case is in the hands of judges of the 9th U.S. Circuit Court of Appeals.
Selna declared a mistrial Aug. 24 on technical grounds when he found there was a failure to turn over bookkeeping evidence in the case. Selna did not find the failure to be a product of misconduct, but rather an oversight.
Avenatti argued in his appeal that he repeatedly requested the bookkeeping evidence to prove that he did not cheat his clients as prosecutors alleged. He argued prosecutors ignored his pleas for more evidence from his defunct law firm’s computers.
“These demands, however, resulted in no action by the government,” Avenatti argued in the appeal. “Instead, for two and a half years, the prosecution team continued to withhold critical financial information at the center of the case, while falsely and recklessly representing to the defendant and to the court that the government had fulfilled all of its discovery obligations and produced all information favorable to the defense.”
At issue is what attorneys refer to as a Brady obligation of prosecutors to turn over evidence that could be helpful to defense attorneys.
“Worse yet, they openly mocked defendant and his counsel, including to the court, when they raised their concerns relating to the lack of disclosure,” Avenatti said.
Avenatti argued during the trial that it became clear he did not have critical evidence that was owed to him.
Avenatti said prosecutors should not be allowed to “start anew, armed with the benefit of having observed defendant’s defense strategy, opening statement and cross-examination of 21 government witnesses during the first trial.”
Avenatti said a retrial would violate his rights against double jeopardy and for due process.
Prosecutors replied in court papers that Avenatti’s motion was a “frivolous double-jeopardy argument to delay a retrial that he asked for.”
Prosecutors argued that Avenatti should not be allowed to “delay his trial simply by filing a notice of appeal that has no chance of success on its merits.”
The prosecutors further argued that the appellate justices have no jurisdiction over the double jeopardy claim.
Avenatti rocketed to fame based on his representation of adult film actress Stormy Daniels in a nondisclosure agreement dispute with former President Donald Trump.
Avenatti is charged with ripping off at least five clients of nearly $10 million in settlement funds between January 2015 and March 2019.
In August, Avenatti was sentenced to 30 months in prison for attempting to extort about $25 million from Nike, in a case that was tried in New York.
In California, Avenatti is charged in a 36-count indictment with 10 counts each of wire fraud and failing to file tax returns, eight counts of willful failure to collect and pay over-withheld taxes, two counts of bank fraud, three counts of a false declaration in bankruptcy and one count each aggravated identity theft and providing false testimony under oath in bankruptcy. His retrial would be only on the 10 counts of wire fraud, with the rest of the case to be tried at a later date.
>> Want to read more stories like this? Get our Free Daily Newsletters Here!Follow us: