Exhibit T

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UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CRIMINAL MINUTES - GENERAL

Case No. SACR 19-0061-JVS Date October 4, 2021

Present: The Honorable James V. Selna, U.S. District Court Judge

Interpreter N/A

Deborah Lewman None None

Deputy Clerk Court Reporter. Assistant U.S. Attorney

U.S.A. v. Defendant(s): Present Cust. Bond Attorneys for Defendants: Present App. Ret.

 Michael John Avenatti, Pro Se Not H. Dean Steward, CJA -

Advisory Counsel

Not

Proceedings:

(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]

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). 

I. Background.

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

The Court made substantial findings in ultimately granting a new trial based on violations of

Brady. (Tr. 8-24-21, pp. 56-65 [“Tr.”].)

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.)

1

See Docket Nos 706, 737, 745 .

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UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CRIMINAL MINUTES - GENERAL

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: 

[T]he evidence must have been suppressed by the

government willfully or inadvertently. I find that it was, quote, “suppressed,” although I don’t

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.

(Id., p. 62.)

Third, the Court found no misconduct on the part of either the Privilege Review Team or the

Prosecution Team:

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.

(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.

(Id., p. 64.) The Court specifically found that the Prosecution Team made a diligent effort to produce

that TABS data which it received. (Id., p. 59; Docket No. 737, Ex. 1.)

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.)

Having considered the parties’ factual and legal showings on the Motion, the Court

reaffirms each of its earlier findings and legal conclusions.

2

The parties and the Court has used the term “Privilege Review Team” and “Taint Team”

interchangeably. 

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UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CRIMINAL MINUTES - GENERAL

II. Discussion.

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.

A. Due Process and Supervisor Powers.

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.)

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).

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.

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).

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.)

3

Brady v. Maryland, 373 U.S. 83, 87 (1963).

4

Giglio v. United States, 405 U.S. 150, 154 (1957).

5

18 U.S.C. § 3500.

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UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CRIMINAL MINUTES - GENERAL

In sum, the Government’s shortcomings do not warrant dismissal of the Indictment.6

B. Double Jeopardy.

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:

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.

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), 

However, there is an exception:

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.

(Id. at 673; emphasis supplied, citation omitted.) The Ninth Circuit’s view of the Kennedy standard is a

strict one:

 “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.’ ” 

United States v. Lopez-Avila, 978 F.3d 955, 962 (9th Cir. 2012) (emphasis supplied; modification in

original).

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

6

Avenatti’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

CRIMINAL MINUTES - GENERAL

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.)

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. 

III. Conclusion.

The Motion is DENIED.

: 00

Initials of Deputy Clerk djl

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