Michael Avenatti (Photo by Jennifer S. Altman/For The Washington Post via Getty Images)
Michael Avenatti is out of jail right now due to the outbreak of COVID-19, but that doesn’t mean he’s out of the woods. The attorney who dominated the news in 2018 is now facing a slew of federal charges related to alleged embezzling and he’s already been convicted on extortion charges and things may have just gotten worse for him because federal prosecutors in the case proceeding against him in California have informed the judge that they think Avenatti violated the terms of his release and they want some answers.
The terms of his release barred Avenatti from having any access to the internet, presumably to prevent him from being able to get into any mischief online. But that’s just a useful canard — he can’t use the internet because he couldn’t use it in jail and in facing the unprecedented challenges of the pandemic, prosecutors are hoping to replicate captivity in any way possible. That includes holding Avenatti without access to the 21st century.
But he’s got his own defense to look after so there’s a carve-out in his original terms:
Although defendant may not possess, use, or access any internet-enabled digital devices, this Order does not preclude defendant’s legal counsel from emailing legal documents to defendant’s third-party custodian, Jay Manheimer, so that defendant’s third-party custodian can print them for defendant to review. Defendant may also access and use an internet-enabled digital device while in the presence of defendant’s legal counsel, solely for the purpose of preparing his defense in this case and in the two pending prosecutions in the Southern District of New York (“SDNY”), United States v. Avenatti, No. 1:19-cr-373-PGG (SDNY), and United States v. Avenatti, No. 1:19-cr-374-JMF (SDNY).
Prosecutors cry foul that the metadata of a number of recent filings in the case show Jay Manheimer as the author, suggesting Avenatti has been writing documents in his own defense. They even point to a recent conference where Avenatti knew what the filings said as proof that he couldn’t possibly have just read them.
The horror!
This all assumes his counsel wasn’t present while Avenatti and he worked on these documents in compliance with the agreement. If counsel wasn’t present, using a computer that one assumes could reach the internet is certainly a violation of the terms of the release, but if the purpose of this provision was to limit Avenatti’s access to the internet, typing up his own defense filings doesn’t seem to implicate the purpose of the restriction.
Given that the biggest complaint prosecutors have in the case is Avenatti dragging down discovery and blaming it on lack of access to the materials due to the terms of his release. Just give him a computer and let him get on with his defense. If he can draft his filings faster with a computer that would seem to be in everyone’s interests.
A day after prosecutors filed 33 pages describing in pearl-clutching detail their concern that Avenatti may have touched a keyboard to write something on a local drive and demanding an inquiry, Judge James Selna nipped this whole thing in the bud with a straightforward set of amended conditions:
To ensure that defendant is able to review the discovery in this matter and the other pending prosecutions involving defendant in the Southern District of New York, defendant may use and possess a computer so long as the computer’s ability to access the internet has been disabled and remains disabled.
Software will be applied to ensure that the computer doesn’t reach the outside world.
Judge Selna refrained from writing in bold, “see how easy that was, now shut up,” and we all appreciate the restraint that must have taken.
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.