Avenatti can delay start of New York prison term, judge says

Rejecting a request from prosecutors on Wednesday, a federal judge in New York allowed suspended California attorney Michael Avenatti to again delay the start of a 30-month prison sentence he received for attempting to extort $25 million from Nike Inc.

U.S. District Judge Paul G. Gardephe said Avenatti could begin serving his sentence in February 2022, once a trial in Orange County is completed. But Avenatti faces a third trial in 2022 back in New York on charges he stole a book advance from a former client, the pornographic film actress known as Stormy Daniels. That could allow Avenatti to further delay the start of his prison term. USA v. Avenatti, 19-CR00061 (C.D. Cal., filed April 10, 2019).

The U.S. attorney for the Southern District of New York asked Gardephe on Monday to force Avenatti to start serving his prison sentence on Nov. 12 since the case in Orange County in which Avenatti is facing fraud charges is pending at the 9th U.S. Circuit Court of Appeals after the trial judge found prosecutors withheld evidence. USA v. Avenatti, 19-cr-61 (C.D. Cal., filed April 10, 2019).

The New York prosecutors reasoned that since the 9th Circuit could take months to consider Avenatti's claim of double jeopardy there was no reason to delay the start of his prison sentence. The 9th Circuit has put Avenatti's appeal on an expedited schedule.

After receiving an opposition brief from Avenatti on Tuesday, Gardephe denied the U.S. attorney's request.

"The government's request to expedite Mr. Avenatti's surrender date is unjustifiable and unsupported by the totality of the circumstances," the judge wrote. "Mr. Avenatti is neither a flight risk nor a danger to the community, a finding that has been repeatedly made, including in the presentence report prepared in connection with this case."