By Lauren Berg

Law360 (July 19, 2021, 10:56 PM EDT ) Amidst jury selection Monday, Michael Avenatti asked a California federal judge to delay his embezzlement trial due to a spike in Delta variant coronavirus cases in Los Angeles, and asked the court to examine what he called "improper and prejudicial" tweets from a former federal prosecutor.

About a week into the jury selection process for his bifurcated trial, Avenatti said a recent spike in coronavirus cases due to the spread of the Delta variant in the Los Angeles area makes it too dangerous to go on with the trial as planned. He said the COVID-19 vaccine is "no silver bullet," arguing that people can still contract the virus, suffer serious health problems and even die from the infection.

"It makes little sense to proceed with impaneling a jury for a month-long trial, in the middle of a health crisis that is widely expected, by all reasonable experts, to grow exponentially worse in the days and weeks ahead," Avenatti said.

"The health risks to the court, its staff, the jurors, witnesses, attorneys and the defendant are simply too great and not worth the difference between trying this case now versus mere months from now," the suspended attorney said.

Because of the rising number of cases and associated health risks, Los Angeles County reinstated an indoor mask mandate over the weekend, according to the motion. Citing the Los Angeles County Department of Public Health, Avenatti said the rate of new COVID-19 cases has risen 300% since July 4 and that the daily positive test rate has increased from 0.5% on June 15 to 3.7% last week.

Even in Orange County, where the trial is being held at the Santa Ana federal courthouse, the rise in cases is just as concerning, Avenatti said. He said there has been a rise in cases, hospitalizations and deaths from the virus.

Avenatti argued that he is entitled to a fair trial before a jury that is not distracted by a health crisis that threatens their health and safety, according to the motion. He said proceeding with the trial at this point puts lives at risk.

"It also risks the defendant suffering severe prejudice as a result of jurors who are most interested in getting to any verdict as quickly as possible as opposed to the right verdict after a measured, deliberative process," Avenatti said. "Rushing through a trial and deliberations because a deadly virus is infecting the community and spreading like wildfire is not consistent with fundamental due process."

In the alternative, Avenatti asked that the court conduct "significant voir dire" regarding the COVID-19 virus, the Delta variant and the associated risks and concerns of the jury pool.

In a separate request Monday, Avenatti asked the court for an evidentiary hearing regarding "improper and prejudicial comments/social media posts" by former federal prosecutor Julian André, who led the government's team in Avenatti's case before leaving the U.S. Attorney's Office for the Central District of California earlier this year. He is now a partner at McDermott Will & Emery.

In a declaration, Avenatti's attorney H. Dean Steward said André has been publicly commenting and "promoting misinformation" about the case and Avenatti, including derogatory and prejudicial information, through Twitter and other social media.

"The conduct is even more egregious because former AUSA Andre has made it a point to make his personal knowledge and involvement in Mr. Avenatti's case known ... and has amplified information to the public and the press that he knows to be questionable at best (if not entirely false) and highly prejudicial," Steward wrote.

Steward said the U.S. Attorney's Office has known about André's alleged misconduct for months, but didn't tell Avenatti or the court.

One such post came over the weekend, in which André shared a story written by a reporter that mentioned Avenatti's 30-month sentence after he was convicted of extorting Nike, which discussed matters that occurred outside the presence of the jury pool, and that included negative statements about the suspended attorney made by prospective jurors during individual voir dire, according to the declaration.

André has made other "negative, malicious and substantially questionable" posts on his social media leading up to the trial, including comments about Avenatti's Nike sentence and a news article about Avenatti that described information the court had already ruled would be excluded at trial and couldn't be placed before the jury by the government, Steward said.

"The extrajudicial conduct described above ... constitutes a significant and purposeful interference with Mr. Avenatti's constitutional rights, including his right to due process and a fair trial under the Sixth and Fourteenth Amendments," Steward said.

Steward said André's tweeting also likely violates California Rules of Professional Conduct and U.S. Department of Justice policy. And even though he is no longer a federal prosecutor, André still has to abide by such rules because of his affirmative obligations relating to Avenatti's case, the declaration states.

A representative for the government and counsel for Avenatti declined to comment Monday evening. André did not immediately respond to a request for comment.

The first part of Avenatti's bifurcated trial will focus on Los Angeles prosecutors' claims that he lied to five former clients about the details of settlements in their favor, while using millions of dollars of the funds for his own ends.

The second part of Avenatti's trial, slated to begin Oct. 12, will focus on bank and tax fraud charges. The attorney is accused of stiffing the government on payroll taxes from his Tully's Coffee business to the tune of $3.2 million from 2015 to 2017. He is also charged with failing to file personal income tax returns from 2014 through 2017 and failing to file tax returns for his law firms Eagan Avenatti LLP and Avenatti & Associates from 2015 through 2017.

In addition to his charges in California and conviction for extortion, Avenatti also faces a separate federal prosecution in New York over his alleged theft of hundreds of thousands of dollars owed to high-profile client Stormy Daniels from a book deal.

Following his conviction in the Nike case, the State Bar of California suspended Avenatti's law license.

The government is represented by Brett A. Sagel and Alexander C.K. Wyman 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 Rachel Scharf, Stewart Bishop and Andrew Strickler. Editing by Regan Estes.

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