Michael Avenatti
UPDATE: July 6 at 3:42 p.m. Eastern Time—Hours after the publication of this story, a federal judge rejected Michael Avenatti’s bid for a new trial that was based in part on his just-filed motion. The story below has been updated to reflect that development.
A witness’s fears involving a decades-old conspiracy theory about Bill and Hillary Clinton will not get fallen attorney Michael Avenatti a new trial for extorting Nike.
Awaiting his sentencing for a multimillion-dollar shakedown of Nike, Avenatti hoped to scuttle a federal jury’s convictions by claiming prosecutors withheld testimony about a witness: Judy Regnier, who told the FBI two weeks before trial that she “felt threatened” by a tweet stating that she might “end up like a Clinton witness.”
“The term ‘Clinton witness’ references a decades-old conspiracy theory, also known as the ‘Clinton Body Count,’ promoted by President Trump and others, that President Clinton and Secretary Clinton arranged to kill individuals with damaging or incriminating information against them,” Avenatti’s lawyer Benjamin Silverman wrote in a footnote of a three-page letter which recapped the witness’s alleged fears.
That motion became public on Monday evening, and U.S. District Judge Paul Gardephe took little less than a day considering it before rejecting it on Tuesday.
“It establishes a clear bias and also evidences a motive to have Mr. Avenatti convicted and incarcerated,” the defense letter states. “It also raises significant credibility issues. Evidence that ‘impeaches a government witness . . . is generally called Brady material.'”
Avenatti claims federal prosecutors in the Southern District of New York never disclosed Regnier’s statement to him before his trial, which he now argues he would have used to have undermine her credibility.
But Judge Gardephe ruled on Tuesday that the disclosure would not have mattered because Regnier was an “inconsequential witness.”
“She had no direct knowledge of, and did not testify concerning, Avenatti’s alleged crimes,” Gardephe wrote in a 96-page ruling. “To the extent that Regnier’s testimony suggests that Avenatti’s law firm was in financial distress, there was abundant evidence that Avenatti was in financial distress, including a stipulation that unpaid judgments amounting to $11 million had been entered against Avenatti.”
“Regnier’s testimony–which appears on nine pages of the trial transcript–was so inconsequential that defense counsel chose not to cross-examine her,” Gardephe added.
The watershed Supreme Court case Brady v. Maryland established in 1963 that prosecutors must disclose information that might be helpful to a criminal defense. Avenatti claims federal prosecutors in New York failed to do so — and that California prosecutors provided Regnier’s statements to him for the first time in advance of a separate trial there accusing him of defrauding former clients of millions of dollars.
“The government also concedes that it deliberately withheld, and continues to withhold, handwritten notes from meetings with Regnier during at least one of which she was asked about Nike and during at least two of which she was asked about Mr. Avenatti’s financial condition,” the defense letter states. “Ms. Regnier was one of only a handful of witnesses to testify for the government at trial and the government elicited testimony from her about both issues.”
On Feb. 6, 2020, Regnier testified that Avenatti saw the plan to pressure Nike to pay millions to cover up their correction scandal as a “light at the end of tunnel” for his financial woes. Prosecutors claimed that he was $15 million in debt at the time and that he demanded at least that much money from Nike.
But Judge Gardephe found that no Brady violation existed under the standard the Supreme Court established decades later in U.S. v. Bagley, holding that “[undisclosed] evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense the result of the proceeding would have been different.”
In a recent sentencing memorandum, federal prosecutors asked Judge Gardephe to deal Avenatti a “very substantial sentence.” Though the government did not define that phrase, the probation office proposed an eight-year sentence, which dips below the 11.25-to-14-year guideline range. Prosecutors signaled their agreement with the probation office.
Seeking a maximum six-month sentence, Avenatti’s lawyers claim that their client’s spectacular fall from star of the cable news networks to thrice-prosecuted federal criminal defendant is punishment enough.
“Avenatti’s epic fall and public shaming has played out in front of the entire world,” defense attorneys Scott A. Srebnick and E. Danya Perry argued in a sentencing memorandum in early June.
Whatever the outcome of his sentencing on Friday, Avenatti will continue to face criminal exposure in two separate jurisdictions. In addition to his pending case in California, Avenatti also faces a third prosecution in the Southern District of New York. He’s accused there of defrauding his most famous client: adult film actress Stormy Daniels.
Read Judge Gardephe’s ruling and Avenatti’s defense filing below:
[image via Drew Angerer/Getty Images]
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