Case 2:18-cr-00422-DJH Document 1411-1 Filed 12/01/21 Page 1 of 6
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`Exhibit T
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`Case 8:19-cr-00061-JVS Document 838 Filed 10/04/21 Page 1 of 5 Page ID #:19272Case 2:18-cr-00422-DJH Document 1411-1 Filed 12/01/21 Page 2 of 6
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`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF CALIFORNIA
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`CRIMINAL MINUTES - GENERAL
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`Case No.
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`SACR 19-0061-JVS
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`Date
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`October 4, 2021
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`Present: The Honorable
`Interpreter
`N/A
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`James V. Selna, U.S. District Court Judge
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`Deborah Lewman
`Deputy Clerk
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`None
`Court Reporter.
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`None
`Assistant U.S. Attorney
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`U.S.A. v. Defendant(s):
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`Present Cust. Bond
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`Attorneys for Defendants:
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`Present App. Ret.
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` Michael John Avenatti, Pro Se
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`Not
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`H. Dean Steward, CJA -
`Advisory Counsel
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`Not
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`(IN CHAMBERS) DEFENDANT’S MOTION TO DISMISS CASE DUE TO DOUBLE
`JEOPARDY, PROSECUTORIAL MISCONDUCT, CONTEMPT OF THIS COURT’S
`JANUARY 25, 2021 ORDER [DKT. 408], AND VIOLATIONS OF DEFENDANT’S
`RIGHT TO DUE PROCESS [822]
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`Proceedings:
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`Michael John Avenatti (“Avenatti”) moves the Court to deny a retrial of the matter and to dismiss the
`Indictment with prejudice. (Docket No. 822.) The Government has filed an opposition (Docket No. 825), and
`Avenatti has replied (Docket No. 828).
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`I.
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`Background.
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`The Court does not write on a clean slate and neither do the parties. With the exception of
`Avenatti’s Double Jeopardy argument, the parties presented virtually the same arguments on Avenatti’s motion
`dismiss or grant a new trial based on the Government’s failure meet its Brady obligations, particularly with
`respect to TABS and other accounting data.1
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`The Court made substantial findings in ultimately granting a new trial based on violations of
`Brady. (Tr. 8-24-21, pp. 56-65 [“Tr.”].)
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`First, the Court found that the failure to produce all accounting data constituted a Brady
`violation. (Tr., pp. 60-63.) No one contested the significance of the accounting data, and it simply was not
`produced in full. That was prejudicial. (Id., pp. 62-63.)
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`CR-11 (09/98)
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`1See Docket Nos 706, 737, 745 .
`CRIMINAL MINUTES - GENERAL
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`Case 8:19-cr-00061-JVS Document 838 Filed 10/04/21 Page 2 of 5 Page ID #:19273Case 2:18-cr-00422-DJH Document 1411-1 Filed 12/01/21 Page 3 of 6
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`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF CALIFORNIA
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`CRIMINAL MINUTES - GENERAL
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`Second, a Brady violating does not require an intentional violation. See United States v. Price,
`566 F.3d 900, 909 (9th Cir. 2015). The Court found no misconduct on the part of either the Privilege Review
`Team or the Prosecution Team. With respect to the “suppression” element under Brady, the Court found:
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`[T]he evidence must have been suppressed by the
`quote, “suppressed,” although I don’t
`government willfully or inadvertently. I find that it was,
`think that’s the appropriate word in the [present] context. But it wasn’t produced through
`inadvertence and a failure to appreciate what was there.
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`(Id., p. 62.)
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`Third, the Court found no misconduct on the part of either the Privilege Review Team or the
`Prosecution Team:
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`I find no willful conduct on the part of the Prosecution Team. I find no willful conduct on
`the part of the Privilege Review Team. I think the Taint Team2 has fairly acknowledged
`that there may have been some shortcomings in the review process.
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`(Id.) The Court later reiterated the point to ensure that it was not lost on the parties:
`I want to go back and emphasize two points. I repeat my findings that I find no
`misconduct on the part of the Prosecution Team and no misconduct on the part of the
`taint Team. Shortcomings there may have been, but I find no misconduct, intentional or
`otherwise, on the part of the Taint Team in carrying out its activity.
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`The Court specifically found that the Prosecution Team made a diligent effort to produce
`(Id., p. 64.)
`that TABS data which it received. (Id., p. 59; Docket No. 737, Ex. 1.)
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`Fourth, the Court found that there was no way to proceed, and that even a brief
`adjournment would not cure the problem because there was no way to put Avenatti back in position he
`would have been if he had had the accounting data from the outset. (Id., p. 64.) When Avenatti was
`asked if there were a limited basis on which he could still proceed, he said “No . . . I do not believe
`that it is possible for this trial to proceed in this fashion for many, many reasons.” (Id., p. 19.) The Court
`also expressed concern about retaining the jury. (Id., p.
`64.)
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`Having considered the parties’ factual and legal showings on the Motion, the Court
`reaffirms each of its earlier findings and legal conclusions.
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`2The parties and the Court has used the term “Privilege Review Team” and “Taint Team”
`interchangeably.
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`CR-11 (09/98)
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`CRIMINAL MINUTES - GENERAL
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`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF CALIFORNIA
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`CRIMINAL MINUTES - GENERAL
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`II.
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`Discussion.
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`Avenatti offers two bases for a dismissal: (1) the Brady violation and the Court’s exercise
`of it supervisor powers and (2) his right to be free of Double Jeopardy under the Fifth Amendment.
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`A. Due Process and Supervisor Powers.
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`Avenatti moves the Court to dismiss the Indictment based on violations of his Due Process
`rights or based on the Court’s supervisory powers. (Motion, pp. 23-27.)
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`Where the Governments conduct is “so grossly shocking and so outrageous as to violate
`the universal sense of justice,” the Court is compelled to dismiss the indictment. United States v. Holler,
`411 F.3d 1061, 1065-66 (9th Cir. 2005); United States v. Pedrin, 797 F.3d 792, 795 (9th Cir. 2015). The
`ultimate remedy must be used sparingly. United States v. Omni Int’l, 634 F. Supp. 1414, 1438 (D. Md.
`1986).
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`Avenatti presents an extensive discussion of the Government’s production obligations
`under Brady,3 Giglio,4 and the Jenks Act5 and its failure to meet them. (Motion, pp.3-19.) While the
`Court did find a Brady violation with respect to the production of accounting data, that conduct was not
`outrageous. Nor does the Court find that any of the alleged individual failings were outrageous either
`individually or collectively sufficient to warrant dismissal of the Indictment.
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`While the Court has the supervisory power to dismiss an indictment where the conduct
`falls short of a Due Process violation where there is flagrant misbehavior and substantial prejudice,
`United States v. Bundy, 968 F.3d 1019, 1030 (9th Cir. 1993), the Governments actions here were not
`flagrant. “[Negligent, or even grossly neglect” conduct, or “sloppy, inexcusable tardy conduct” do not
`meet the flagrant conduct standard. United States v. Kearns, 5 F.3d 1251, 1255 (9th Cir. 1993); United
`States v. Toilolo, 666 F. App’x 618, 620 (9th Cir. 2016).
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`While it is no excuse that Government made substantial production. United States v.
`Kohring, 637 F.3d 895, 912-13 (9th Cir. 2011), Avenatti points to no category of documents for which
`the Government wilfully produced no documents. Even with respect to the notorious TABS data, the
`Government produced and offered at trial the TABS reports for two the five victims. (Trial Exs. 48, 174;
`see also Docket No. 737, Ex. 1.)
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`3Brady v. Maryland, 373 U.S. 83, 87 (1963).
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`4Giglio v. United States, 405 U.S. 150, 154 (1957).
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`518 U.S.C. § 3500.
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`CR-11 (09/98)
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`CRIMINAL MINUTES - GENERAL
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`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF CALIFORNIA
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`CRIMINAL MINUTES - GENERAL
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`In sum, the Government’s shortcomings do not warrant dismissal of the Indictment.6
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`B. Double Jeopardy.
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`The Supreme Court has held that where the defendant has requested and been granted a
`new trial, the Double Jeopardy clause is no bar to a retrial:
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`Where the trial is terminated over the objection of the defendant, the classical test for
`lifting the double jeopardy bar to a second trial is the “manifest necessity” standard first
`enunciated in Justice Story's opinion for the Court in United States v. Perez, 9 Wheat. 579,
`580, 6 L.Ed. 165 (1824). . .. But in the case of a mistrial declared at the behest of the
`defendant, quite different principles come into play. Here the defendant himself has
`elected to terminate the proceedings against him, and the “manifest necessity” standard
`has no place in the application of the Double Jeopardy Clause.
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`Oregon v. Kennedy, 456 U.S. 667, 672 (1982). A defendant’s request for a new trial “implicitly
`invite[s] a second trial and [is] enough to foreclose any double jeopardy complaint about it.” Curreir v.
`Virginia, 138 S. Ct. 2144, 2151 (2018),
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`However, there is an exception:
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`Where prosecutorial error even of a degree sufficient to warrant a mistrial has occurred,
`“[t]he important consideration, for purposes of the Double Jeopardy Clause, is that the
`defendant retain primary control over the course to be followed in the event of such error.”
`Only where the governmental conduct in question is intended to “goad” the defendant into
`moving for a mistrial may a defendant raise the bar of double jeopardy to a second trial
`after having succeeded in aborting the first on his own motion.
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`(Id. at 673; emphasis supplied, citation omitted.) The Ninth Circuit’s view of the Kennedy standard is a
`strict one:
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` “In practice, the Kennedy standard is rarely met. That is because “ ‘[i]t doesn’t even
`matter that [the prosecutor] knows he is acting improperly, provided that his aim is to get
`a conviction. The only relevant intent is intent to terminate the trial, not intent to prevail at
`this trial by impermissible means.’ ”
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`United States v. Lopez-Avila, 978 F.3d 955, 962 (9th Cir. 2012) (emphasis supplied; modification in
`original).
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`No “goading” occurred here. Indeed, the mistrial was granted over the vigorous objection
`of the Government. (Tr. Aug. 24, 2021; passim.) As noted above, there was no Brady violation by the
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`6Avenatti’s contention that the Government violated the Court’s Rule 5(f) Order adds
`nothing to the discussion. (Motion, pp. 2, 10; Reply, pp. 9-10.) The Order simply makes
`explicit the discovery obligations discussed above. (Docket No. 408.)
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`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF CALIFORNIA
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`CRIMINAL MINUTES - GENERAL
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`Prosecution Team. Nor can the ignorance on the part of the Privilege Review Team until late in the day
`be characterized as “goading.” Moreover, “even when a district court finds substantial Brady violations,
`prejudice to the defendants, and flagrant government misconduct,” dismissal is neither a foregone
`conclusion nor required as a matter of law. United States v. Bundy, 968 F.3d. 1019, 1043 (9th Cir.
`2020). The remedy which the Court adopted here–a new trial–is within its discretion. (Id.)
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`In any event, the Court finds that the “manifest necessity” standard was met here. As the
`Court has found, and Avenatti concurred, there was no way to go forward.
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`III.
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`Conclusion.
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`The Motion is DENIED.
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`Initials of Deputy Clerk
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`djl
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`:
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`00
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`CR-11 (09/98)
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`CRIMINAL MINUTES - GENERAL
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