Michael Avenatti asks 2nd Circuit to dump conviction for cheating Stormy Daniels

MANHATTAN (CN) — Michael Avenatti, the pugnacious celebrity attorney who briefly rose to fame five years ago while representing adult film actress Stormy Daniels in her case against then-President Donald Trump, urged a Second Circuit panel Friday to reverse his conviction for pocketing about $300,000 from Daniels’ $800,000 publishing advance on her autobiography.

Avenatti was sentenced to four years in prison after a New York jury convicted him on counts of wire fraud and identity theft for diverting hundreds of thousands of dollars that a publisher was paying the adult film actress for her tell-all in 2018.

Avenatti’s attorney, Kendra L. Hutchinson from the Federal Defenders of New York, told the three-judge panel that U.S. District Judge Jesse Furman had directed jurors to “in essence, rat out their fellow juror,” by giving the jury a supplemental instruction on the third day of deliberations that repeatedly insisted on the duty of jurors to “arrive at a just verdict.”

The judge’s instruction came in response to a jury note during deliberations that advised the court that the panel included “one juror who is refusing to look at evidence and is acting on a feeling.”

“She does not believe she needs to prove her side using evidence and refuses to show us how she has come to her conclusion,” the jury’s note read. “Please help us move forward. Not going on any evidence, all emotions and does not understand this job of a jury.”

In response to the note, Judge Furman read the jurors a modified version of so-called “Allen charge” instructing the juror to continue deliberating toward a unanimous verdict, and then gave supplemental instructions that Avenatti says singled out and shamed the holdout juror by advising the jury that they were free to send another note to let him know if “at any point in your deliberations, anyone on the jury is refusing to deliberate in accordance with my instructions.”

“In other words, the court told jurors they were free to, in essence, shame the holdout again with another note,” Avenatti argued in his appeal brief. “Faced with this prospect, it is unsurprising that the minority juror relented and that the jury reached a verdict within 2 1/2 hours.”

During 50-minute oral arguments on Friday, Hutchinson told the panel that Furman “could only have granted a mistrial at this moment.”

“It seems like you’re saying whenever there’s any notes singling out a juror for anything, you have to declare a mistrial at this point,” U.S. Circuit Judge Steven Menashi, a Donald Trump appointee, replied. “When would you not have to declare a mistrial if the jury was upset about somebody refusing to deliberate."

Hutchinson answered, “I would say that an Allen charge in response to credible allegations of refusal to deliberation is probably not appropriate."

Avenatti also argued Judge Furman wrongly tipped the scales against him by giving the jury “a lengthy and detailed” final charge on the ethical duties of a lawyer under the California Rules of Professional Conduct, which included the language: “misappropriation of client funds is a particularly serious violation of a lawyer’s ethical duty of loyalty.”

“Given the context of this particular case, the professional duties instruction turned this federal criminal trial into an attorney grievance proceeding,” Avenatti argued in his brief. “The charge was irrelevant, confusing and misled the jury.”

Assistant U.S. Attorney Matthew Podolsky, who also led the prosecution at trial, urged the panel to affirm Avenatti’s conviction and restitution judgment, saying Furman’s instructions were not coercive.

“To the contrary, the instruction singled out no one, reiterated uncontroversial and uncontroverted legal principles, dealt properly with evidence of juror misconduct, and was well within Judge Furman’s discretion,” Assistant U.S. Attorney Hagan Scotten wrote in an appeals brief. “Thus, when Judge Furman instructed the jurors to deliberate, and to send another note if any of their number refused to do so, there was nothing improperly ‘coercive’ about his instruction: A court may not coerce a jury to reach a verdict, but it absolutely can — and should — order jurors to participate in deliberations.”

In response to the accusation of the judge’s additional instruction regarding the “lengthy” instruction professional duties of lawyers, Podolsky argued Furman had carefully explained the relevance of his instructions on an attorney’s duties, and length of the limited but detailed instruction should not be weighed against the judge.

“I think setting it up that way puts a trial judge in, really, an impossible position, because the judge needs to give a complete and accurate instruction,” he told the panel on Friday.

Menashi was joined on the panel by U.S. Circuit Judges Eunice Lee and Sarah Merriam, both Joe Biden appointees.

The panel did not indicate when it would rule.

The California lawyer came to represent Daniels when the actress sought to go public about a purported affair she had with Trump a decade earlier — a story that Trump's attorneys paid her $130,000 to keep quiet about before the 2016 presidential election. Trump continues to deny that he had sex with Daniels.

At trial, Avenatti argued a good faith defense against all charges and told jurors there had been insufficient evidence to prove he ever intended to defraud Daniels.

Avenatti cross-examined his former client after opting to abandon his federal defenders and represent himself.

During the five days of witness testimony, federal prosecutors showed text messages and bank records that demonstrated how Avenatti steered two separate $148,750 installments of Daniels’ publishing advance to a trust account he controlled.

Although Furman gave Avenatti a four-year sentence — two years for each of the counts on which Avenatti was convicted — the judge agreed to let him serve out 18 months concurrently with his sentence for threatening to extort Nike. After the end of the Nike sentence, Avenatti will serve another 30 months in prison for defrauding Daniels.

He faced up to 20 years on the wire fraud charge and a mandatory two-year sentence for aggravated identity theft.

Because his felony convictions in the Southern District of New York led to a suspension of his law license, Avenatti is no longer eligible to practice law in California.

Daniels' purported tryst with Trump resurfaced last year at the center of the Manhattan district attorney's historic criminal indictment of the former president, which charged him with falsifying records at his namesake company to cover up payments made in 2017 that compensated his then-attorney Michael Cohen for facilitating hush money payments during the run-up to the 2016 election to keep Daniels and Playboy model Karen McDougal quiet about extramarital sexual encounters.

Follow @jruss_jruss

Subscribe to Closing Arguments

Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.

Email *

Submit