Avenatti Plagiarized Michael Flynn Contempt Motion, Feds Say

Law360 (March 15, 2021, 11:19 PM EDT) – Golden State prosecutors urged a California federal judge Monday to reject Michael Avenatti's bid to hold them in contempt over a discovery dispute, saying the disgraced attorney offers no evidence and copied "nearly word for word" a motion from an unrelated case against former national security adviser Michael Flynn.

After U.S. District Judge James Selna in January ordered the government to give Avenatti any discovery relevant or favorable to the attorney's guilt or punishment in the embezzlement case, Avenatti last week alleged prosecutors haven't given up everything and asked the judge to hold them in contempt.

But in their opposition on Monday, prosecutors said they haven't violated any court orders and have complied with all of their discovery obligations. The exculpatory evidence that Avenatti claims has been withheld is either not part of their obligations under the 1963 U.S. Supreme Court case Brady v. Maryland , has already been produced or doesn't exist, prosecutors said.

"He ignores that the government has produced well over a million pages of discovery and numerous forensic copies of digital devices and has repeatedly confirmed to [Avenatti] that the government is continuing to comply with its discovery obligations," prosecutors said. "Here, as he has in the past, [Avenatti] is demanding exculpatory evidence that simply does not exist."

Avenatti also hasn't offered any evidence that the government has withheld any discoverable materials, prosecutors said, and "relies on rank speculation."

And to top it off, Avenatti's motion copies a motion nearly word for word from another attorney in the unrelated criminal prosecution against Flynn, who was recently pardoned by former President Donald Trump.

"Indeed, there is no clearer indication that [Avenatti]'s motion is unmoored from the facts in this case than his plagiarizing of a motion based on entirely different facts and circumstances," prosecutors said.

Representatives for both parties declined to comment Monday.

Also on Monday, Avenatti asked Judge Selna to stretch his temporary release from jail from March 31 to May 31, saying the coronavirus pandemic is still too great a risk. Citing Johns Hopkins University statistics, Avenatti said California has surpassed 3.6 million confirmed cases — a 78,000% increase over when the attorney was first released from jail in April — with more than 55,500 deaths reported in the state.

"Moreover, medical experts are warning that the pandemic is far from over, the threat remains significant and that precautions used over the last year need to continue," Avenatti said.

Prosecutors quickly filed an opposition to Avenatti's request on Monday evening, saying Avenatti is now eligible to receive a COVID-19 vaccine, meaning the risk landscape is different now than when he was first released. Prosecutors said the Bureau of Prisons has been vaccinating incarcerated individuals all over the country.

"In short, the circumstances giving rise to [Avenatti]'s temporary release — and which justified his continued release — have changed," prosecutors said. "He is now eligible to receive any one of three vaccines that would nearly eliminate the health risks that he has relied upon in seeking release from custody."

After meeting and conferring about moving the first part of the bifurcated trial from Feb. 23 to mid-July, prosecutors in January told Judge Selna that July 13 would be a good date for trial of the first 10 counts in the case. The judge granted the request a few days later, according to the court docket.

The 10 counts in question are for wire fraud in connection with allegations Avenatti siphoned money from five clients' settlement awards. The remaining counts — for bank and tax fraud related to various business operations — are currently set for trial Oct. 12.

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.

In addition, 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.

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https://www.law360.com/articles/1365231/avenatti-plagiarized-michael-flynn-contempt-motion-feds-say