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Law360 (October 14, 2020, 10:28 PM EDT )
Michael Avenatti on Wednesday asked the California federal judge overseeing his upcoming embezzlement trial to extend his temporary release from prison by nearly a month, pointing out that coronavirus cases are still rising in the Golden State.
The embattled attorney accused of embezzling his clients' money is set to return to prison on Oct. 20 after U.S. District Judge James V. Selna last month extended his temporary release by two weeks. Avenatti had said he was concerned by the continued spread of the novel coronavirus.
Avenatti said nothing indicated that the risks associated with the pandemic are declining in the Los Angeles area, where he is currently free on home confinement, since he was first released from prison in April. He said California had surpassed 858,000 confirmed cases, a 18,650% increase from when he was first released and the state had about 4,600 cases.
"Meanwhile, medical expert after medical expert is predicting a second wave that will likely be far more deadly and pervasive than the first wave, including in California and in the Central District," Avenatti said.
The attorney also cited Dr. Anthony Fauci, the longtime director of the National Institute of Allergy and Infectious Diseases at the National Institutes of Health, who warned in an interview on CNN that COVID-19 in the U.S. is "on a trajectory of getting worse."
The U.S. is seeing an uptick in cases, Avenatti said, with 57,000 new infections reported Oct. 9. He also cited a University of Washington model that projects the U.S. will see 189,000 more deaths by February.
Avenatti said that he has health conditions that put him at a higher risk from the virus and that the infection rate for prisoners is 5.5 times higher than for the U.S. population and the death rate in prisons three times higher.
In his motion, Avenatti said the government opposes his request for a 28-day extension of his release. The government said no more extensions should be made until Judge Selna rules on prosecutors' request to send Avenatti back to prison over "clear and convincing" evidence that he used a computer to draft court documents, in violation of his release conditions.
The government raised concerns in June that Avenatti was accessing the internet through a computer owned by his bail-release custodian and longtime friend Jay Manheimer. Judge Selna said the situation needed further investigation and extended his release to Sept. 21.
"In direct violation of this condition, defendant used Manheimer's computer to personally draft or edit pleadings in this case, including a status report in which defendant claimed that he could not prepare for trial in this matter because his release conditions prevented him from using a computer to review discovery or work on motions," prosecutors said.
A forensic report showed that Manheimer's computer had been used to create Microsoft Word documents and PDFs and to send and receive emails, although it could not be determined whether Avenatti prepared the documents, the government said.
Avenatti slammed the bid to revoke his bond, saying the government was relying on "unreliable and inadmissible" data.
In the indictment against Avenatti announced in April 2019, prosecutors claim he defrauded five of his former clients by lying to them about the details of settlements in their favor while using the money for his own ends.
Prosecutors say Avenatti used millions of dollars in ill-gotten funds to pay bankruptcy creditors and other clients from whom he had taken money.
Meanwhile, Avenatti was stiffing the government on payroll taxes from his Tully's Coffee business to the tune of $3.2 million between 2015 and 2017, according to the indictment. He is also charged with failing to file personal tax returns between 2014 and 2017 and failing to file returns for his law firms Eagan Avenatti LLP and Avenatti & Associates between 2015 and 2017.
Last month, Judge Selna contemplated splitting the December trial in two to try the wire fraud charges separately from the bank and tax fraud charges. Federal prosecutors argued that the charges are too entwined to try separately, but Avenatti's attorney, H. Dean Steward, agreed with the judge that the wire fraud charges should be severed.
In February, Avenatti was found guilty of extorting Nike in a separate New York case. He faces another federal prosecution in New York over his alleged theft of hundreds of thousands of dollars owed to high-profile client Stormy Daniels from her book deal.
A representative for the government and counsel for Avenatti declined to comment Wednesday.
The government is represented by Julian L. Andre, Brett A. Sagel and Patrick R. Fitzgerald of the U.S. Attorney's Office for the Central District of California.
Avenatti is represented by H. Dean Steward.
The case is U.S. v. Michael Avenatti, case number 8:19-cr-00061, in the U.S. District Court for the Central District of California.
--Additional reporting by Pete Brush, Reenat Sinay, Dave Simpson, Craig Clough and Stewart Bishop. Editing by Peter Rozovsky.
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