A new plagiarism accusation as Avenatti’s trial looms

A federal judge on Tuesday denied suspended lawyer Michael J. Avenatti's bid to delay the July 13 start of his embezzlement trial as the defense attorney accused prosecutors of plagiarizing parts of a brief.

Defense lawyer H. Dean Steward's accusation is the latest accusation of plagiarism in Avenatti's case. Earlier this year, federal prosecutors accused Steward of cribbing off a brief filed by Sidney Powell, a lawyer for former National Security Adviser Michael Flynn.

"The government evidently has modified its position as to the propriety of copying other filings because that is exactly what the government has done in filing its opposition -- it copied portions of other attorneys' work from an entirely different case verbatim," Steward wrote.

Steward said U.S. prosecutors in Los Angeles lifted portions of a brief U.S. prosecutors in San Jose filed in the fraud case against Theranos founder Elizabeth Holmes. Both briefs addressed the question of how much prosecutors could tell the jury about a defendant's profligate spending habits.

Thom Mrozek, spokesman for the U.S. attorney's office in Los Angeles, said, "The government strives to take consistent positions on legal issues as it litigates cases across the nation. We are all part of the same Department of Justice that represents the same client -- the United States."

Avenatti is accused of stealing millions of dollars from his clients and failing to pay employment taxes for workers at a coffee company he owned. He was convicted in New York of trying to extort $25 million from Nike Inc. A third pending case alleges he stole a book advance from another client, the pornographic movie actress known as Stormy Daniels.

Steward asked U.S. Judge James V. Selna of the Central District of California to delay the start of the trial until Sept. 14. Federal prosecutors' key witness, known as Employee 1, suffers from post-traumatic stress disorder anxiety attacks, impairing her cognitive ability to remember facts, he said. Steward also accused the government of hiding the witness' condition.

The witness handled Avenatti's financial accounts, according to court filings.

On Tuesday, Selna denied the motion.

"Avenatti claims that Employee 1 is the 'linchpin' and 'the most important government witness in the case.' This is far from clear," Selna wrote. "The government case was largely formulated before the government interviewed Employee 1. The government identifies numerous other sources to support the claims Count 1 through 10, including the victim clients."

Selna also disagreed with the claim that the government tried to hide the employee's condition, saying that the facts had been presented earlier this month and during the Nike trial.

The plagiarism charges add spice to an already hot case but are unlikely to be of any consequence.

Prosecutors said in March that Steward lifted from a brief Powell filed in 2019 in the District of Columbia. USA v. Avenatti, 19-CR00061 (C.D. Cal., filed April 10, 2019). Powell became infamous when she told a judge earlier this year in a separate case that "no reasonable person" should have taken seriously her claims that the 2020 election was stolen from President Donald Trump.

Steward, who is well regarded among the Southern California white collar defense bar, was incensed by the plagiarism accusation. And last week, he got the chance to return the favor, pointing out that prosecutors in Los Angeles used parts of the Holmes brief filed in San Jose.

A review of the two motions shows the same language in some sections. Both motions refer to the same two cases: United States v. Mitchell and United States v. Reyes. Both motions use the same language when discussing the Reyes case. The case involved a former CEO who was convicted of a fraudulent scheme involving backdated stock options.

"On appeal, the defendant objected to the introduction of evidence that, during the relevant time period, he received backdated options worth approximately $130 million and exercised approximately $2 million worth of those options," the motions state.

When referring to the Mitchell case, the language is also remarkably similar with only minor differences. Both filings state that the 9th U.S. Circuit Court of Appeals disapproved of the use of financial evidence to prove the defendant's lack of economic means and "it noted that it was not handing down a blanket rule for all scenarios."

Erin Joyce, who defends lawyers in State Bar investigations and disciplinary actions, said she regards the prosecutors' copying as less significant since the government filed both motions.

Joyce previously said of the government's accusations against Steward that plagiarism could be considered deceptive misconduct under State Bar rules.

"The potential deceptive conduct was trying to pass off as 'fresh' research and work on a bill work lifted from another pleading," Joyce said. "But for government attorneys, there is no potential overbilling or padding issue."