US attorney wants Avenatti to start serving Nike prison sentence

A U.S. attorney in New York urged a judge Friday to order suspended California attorney Michael Avenatti to begin serving a 30-month prison sentence he received after being convicted of attempting to extort $25 million from Nike.

After sentencing him in July, U.S. District Judge Paul G. Gardephe in New York allowed Avenatti to delay the start of his sentence, since the embattled attorney was expected to be in a California courtroom soon after to face wire fraud and other charges.

After U.S. District Judge James V. Selna in Santa Ana declared a mistrial in the California case in August because prosecutors committed Brady violations, Avenatti filed an interlocutory appeal to the 9th U.S. Circuit Court of Appeal, asking for the case to be thrown out. He argued a retrial would amount to double jeopardy. With the 9th Circuit expected to take months to consider Avenatti's appeal, a retrial in Selna's courtroom isn't expected to start until sometime next year, if it occurs at all.

With the potential retrial in California put on an indefinite hold, "There is no longer a discrete, time-specific basis for continued delay of the defendant's surrender," U.S. Attorney Damian Williams of the Southern District of New York wrote in a letter to Gardephe on Friday. "Moreover, it is in the interest of justice for the defendant to commence serving the term of incarceration that this court imposed for his serious offenses, including defrauding his client."

Neither Avenatti, who is representing himself in the Santa Ana case, nor lawyers who advised him, could be reached for comment.

The law permits bail pending appeal in certain cases, Williams wrote, but Avenatti has not indicated he will seek it pending the appeal, "and, in any event, he would not be entitled to such relief," the letter stated.

"'Once a person has been convicted and sentenced to jail, there is absolutely no reason for the law to favor release pending appeal or even to permit it in the absence of exceptional circumstances,'" Williams wrote, quoting United States v. Miller -- a 3rd U.S. Circuit Court Appeal case, involving a party seeking bail pending an appeal. United States v. Miller, 753 F. 2d 19, 22 (3d Cir. 1985).

Pointing to everything from the pandemic to prejudice created by negative press coverage, Avenatti has asked to delay proceedings in a number of trials in which he faces fraud charges. Some of his arguments have failed. Others, such as his claim that prosecutors in California failed to turn over data from accounting software his old law firm used, succeeded.

In the Santa Ana case, which was split into two phases, Avenatti is accused of stealing from client settlement funds and of tax and bankruptcy fraud. USA v. Avenatti, 19-cr-61 (C.D. Cal., filed April 10, 2019).

In another New York case, Avenatti is accused of stealing a $300,000 book advance from the adult film actress known as Stormy Daniels. That case is scheduled to begin trial Jan. 10, 2022. U.S. District Judge Jesse M. Furman may delay it while prosecutors and defense attorneys argue over a jury questionnaire.

Prosecutors want the Daniels case to proceed without a questionnaire.

Avenatti's defense team says a questionnaire is needed to weed out potential jurors who have knowledge of his recent conviction in New York and the charges he faces in California. USA v. Avenatti, 19-CR00061 (C.D. Cal., filed April 10, 2019).