Defense calls for mistrial and trial delay in Avenatti’s client theft case

SANTA ANA -- Jury selection began Tuesday in Michael J. Avenatti's fraud trial but most of the day was consumed by his lawyer's eleventh-hour attempts to delay the proceeding or get a mistrial.

H. Dean Steward of Newport Beach complained about media coverage of Avenatti's sentencing in New York last week for trying to extort $20 million from Nike Inc. and demanded his client have access to all venues where prospective jurors were filling out questionnaires.

"Mr. Avenatti has the constitutional right under the Fifth and Sixth Amendments to be present at all stages of the trial in this case, including all aspects of voir dire. Mr. Avenatti has not waived that right," Steward wrote in a motion Tuesday afternoon. "Dividing the prospective jurors across three separate rooms did not permit Mr. Avenatti to be physically present while the entire venir completed questionnaires."

U.S. District Judge U.S. District Judge James V. Selna ordered the prospective jurors to be spread out because of fears of COVID-19 transmission.

Avenatti is charged with 10 counts of wire fraud -- stealing nearly $10 million from former clients' lawsuit settlement funds. A second phase of the trial, scheduled for the fall, relates to charges of tax and bankruptcy fraud. Each wire fraud count carries a maximum penalty of 10 years in prison. USA v. Avenatti, 8:19-CR-00061-JVS (C.D. Cal., filed April 10, 2019).

Avenatti was sentenced to 30 months in prison in the Nike case. He faces a third case in New York next year on charges he stole a book advance from another client, the pornographic film actress known as Stormy Daniels.

Summons were sent to 90 potential jurors in the Santa Ana trial and 76 showed up and were questioned in separate groups. A few jurors hoping to be excused were moved into another room to be questioned with only the judge, his staff, court reporter, prosecutors, Steward and Avenatti present. Steward argued in his motion that Selna failed to admonish the rest of the potential jurors not to research the case.

"There is no telling how many prospective jurors researched Mr. Avenatti in the interim time period," Steward wrote in his motion for a mistrial. "The parties then returned to the larger jury room, where the remaining prospective jurors were seated, with many of them busy on their smartphones."

Steward asked Selna in court earlier in the day to delay the start of the trial by three months to put time between the media coverage of last week's sentence and the trial in California. Questionnaires will be insufficient to gauge whether the jurors could be impartial, he said.

Assistant U.S. attorneys Brett Sagel and Alexander C.K. Wyman are prosecuting. Sagel opposed a delay, arguing Tuesday that the New York sentencing had been delayed multiple times at Avenatti's request.

Selna agreed. The judge said he had faith the questionnaires would adequately evaluate potential jurors' biases.

"We may or may not be accurate, but we'll find out," Selna said.

Steward also blamed New York prosecutors for disseminating a news release announcing Avenatti's 30-month sentence, suggesting prosecutors in Los Angeles helped in the drafting and dissemination to influence the Santa Ana case.

Selna was unconvinced.

"I read the press release. It makes no reference to the U.S. attorney in the Central District of California," Selna said.

"Your honor, we suggest that's beside the point," Steward began, before Selna sharply cut him off.

"No sir, it's not beside the point," Selna said.

The judge pointed to a footnote in Steward's ex parte application citing a Daily Journal story in which a government spokesperson is quoted as saying the different U.S. attorney offices are all one entity because they are under the same U.S. Department of Justice. Steward cited that as proof that the Southern California and New York prosecutors colluded.

The judge called Steward's conclusion "innuendo" and said he believed the allegation was "palpably false."

Selna also ruled that fully vaccinated jurors would have the option to be masked or unmasked for the duration of trial, over the objections of Steward, who wanted all jurors unmasked.

Opening statements are scheduled for July 20 and the trial is estimated to conclude by the third week of August.