« "When Will Joe Biden Start Using His Clemency Powers?" | Main | "Prosecutors, court communities, and policy change: The impact of internal DOJ reforms on federal prosecutorial practices" »

July 8, 2021

AGAIN: You be the judge: what sentence for Michael Avenatti (and do the guidelines merit any respect)?

IA3T7J6NQRFSHDKM6SW26QQ5JAUP AGAIN:  I posted this discussion of a notable scheduled sentencing last month just before Michael Avenatti secured a short postponement.  This new Wall Street Journal article, headlined "Michael Avenatti Faces Sentencing for Trying to Extort Millions From Nike," provides an updated review of this high-profile federal sentencing now scheduled for today.  In addition to the prior posting, folks may want to check out the interesting comments from various folks that it generated last month.


It has been a while since I have done a "you be the sentencing judge" post, but a high-profile fallen lawyer provides juicy grist for this mill.  Specifically, as two recent postings at Law & Crime highlight, Michael Avenatti's upcoming sentencing presents a notable set of facts and arguments for SDNY US District Judge Paul Gardephe:

Michael Avenatti Seeks Light Prison Sentence Because His ‘Epic Fall and Public Shaming’ Are Punishment Enough

Feds Seek ‘Very Substantial’ Prison Term for Disgraced Lawyer Michael Avenatti

Valuably, these two postings include the extended sentencing memoranda filed by the parties in this case, and the second posting summarizes the terms of the sentencing debate (with some of my emphasis added):

Scoffing at the one-time celebrity lawyer’s claim that his “epic fall and public shaming” should be taken into account at sentencing, federal prosecutors urged a judge to deal Michael Avenatti a “very substantial” prison sentence for attempting to extort Nike out of millions of dollars by threatening to expose their corruption scandal.

Quoting the probation office, prosecutors noted that Avenatti “often put himself forth as a champion for the Davids of the world, facing off with those Goliaths who would bully the small, the weak, the victimized.”

“And it was precisely this reputation, and the enormous influence that the defendant wielded on the national stage and across media platforms, that he weaponized,” Assistant U.S. Attorney Matthew Podolsky wrote in a 19-page sentencing brief on Wednesday night. “He used his skills as a lawyer and his power as a media figure not to benefit his client, but instead to threaten harm in an effort to extract millions of dollars from a victim, which, while sophisticated, [Avenatti] believed would be forced into acquiescing secretly to his demands.”

Once a fixture of the cable TV commentary rounds, Avenatti previously depicted his prosecution as another David-versus-Goliath fight, pitting him against the combined might of the Nike corporation and the Trump administration. Southern District of New York prosecutors rejected that, and a federal jury convicted him on all counts in February 2020.

Earlier this month, Avenatti’s defense attorneys Scott A. Srebnick and E. Danya Perry argued that a six-month maximum sentence would be enough for their client. They also said the court could take “judicial notice” that Avenatti’s well-documented “epic fall […] played out in front of the entire world.” Federal prosecutors found that sort of sentence would be far too light, and though they did not propose another number, their sentencing memorandum leaves a few clues into their thinking.

The probation office proposed an eight-year sentence, which dips below the 11.25-to-14-year guideline range.  “While the government, like the probation office, believes that a below-guidelines sentence would be sufficient but not greater than necessary to serve the legitimate purposes of sentencing, the government asks this court to impose a very substantial sentence,” prosecutors wrote....

During the trial, prosecutors played a tape for jurors that they called a picture of extortion. “I’ll go take $10 billion off your client’s market cap,” Avenatti was seen warning attorneys for Nike in the videotape, referring to capitalization. As the jury found, Avenatti had been talking about confidential information he learned about Nike from his former client Gary Franklin, an amateur basketball coach.  Avenatti threatened to expose the embarrassing information relating to the corruption scandal unless the Nike paid $15 million—”not to Franklin, but directly to the [Avenatti] himself,” prosecutors noted. According to the memo, the deal represented 10 times more than Avenatti asked Nike to pay Franklin, and it would have resolved his client’s claims against Nike....

Franklin wrote separately to the U.S. District Judge Paul Gardephe harshly criticizing Avenatti. “Mr. Avenatti quickly abused that trust when he announced on Twitter, without my knowledge and without my consent, that he would be holding a press conference to discuss a scandal at Nike that ‘involved some of the biggest names in college basketball,'” Franklin wrote in a two-page victim impact statement. “I never imagined that Mr. Avenatti would proceed to post on Twitter details of the information I had relayed to him as part of our attorney-client privileged discussions, including the names of the players I coached.

Franklin is not alone among Avenatti’s spurned former clients. Avenatti continues to face another federal prosecution in New York accusing him of defrauding Stormy Daniels in a book deal, plus a case in California alleging tax offenses and other misconduct.

There are so many elements to both the Avenatti crime and his background that may (or many not) be considered important in his upcoming sentencing.  But, as my post title and emphasis seek to highlight, there is seemingly a consensus that the federal sentencing guidelines come nowhere close to recommending a proper sentence.  It is, of course, not especially surprising when a criminal defendant requests a sentence way below the applicable guideline range.  But here, notably, both the probation office and seemingly federal prosecutors also believe a proper sentence should be many years below the bottom of the applicable guideline range.

So I sincerely wonder, dear readers, what sentence you think would be, in the words of the prosecutors, "sufficient but not greater than necessary to serve the legitimate purposes of sentencing"?  Do the guideline merit any respect in this analysis?

July 8, 2021 at 09:02 AM | Permalink


I see no reason to vary. While I appreciate the probation officer’s recommendation of 96 months, the low end of 135 months is reasonable and not greater than necessary to achieve the court’s goals in sentencing. The goals of specific and general deterrence are the court’s chief concern. Being a lawyer, the defendant knew this conduct clearly violated the law and has refused to accept responsibility. Likewise, this sentence will deter future unethical behavior of others tempted to use their notoriety to extort for monetary gain.

Posted by: Mike Hansen | Jun 18, 2021 11:19:54 AM

The 11-14 year range sounds extreme, given someone can kill someone or something, and not get that much time.

The crime here is far from trivial and the six month offer is a joke. The probation office offer would to me be enough.

The "threaten harm in an effort to extract millions of dollars from a victim" is not only a form of extortion, but it threatens the basic integrity of the justice system. People "reinvent" themselves all the time celebrity-wise, so his fall from grace doesn't faze me much either. Like impeachment, punishment here is there to show a line was crossed above normal means of pressure.

So, again, very serious punishment is warranted. And, you have to put that in context of other punishments, which in a vacuum in this country tends to be too extreme. You work with what you got though.

The probation office amount sounds like a good ballpark. I'm annoyed at the vagueness of the prosecutor's offer as cited, but if it is around there, I'm okay with it. Prison alone only takes you so far, but it's part of the mix here, and loss of liberty in prison is particularly useful for people like Avenatti.

I'd also like to know what other effects he will suffer here.

Posted by: Joe | Jun 18, 2021 11:21:06 AM

The amount-of-money guidelines are too high IMO. Against this, using client info to blackmail someone is pretty sick and is obviously a crime against both. Feels like absent that element, 5 years would be about right. But surely this is abuse of a position of trust, and also a double crime as mentioned. Maybe 7 years seems reasonable.

Posted by: William C Jockusch | Jun 19, 2021 8:46:33 PM

I have no particular expertise here, but the views expressed by Joe and William seem reasonable.

Out of curiosity, I looked up some of Judge Gardephe's sentencing history. I note that he gave a 9-year sentence to Mathew Martoma (who, coincidentally, is due for release next month). Martoma perpetrated what was possibly the most profitable insider-trading scheme of all time. He also had a somewhat comparable past record of dishonesty and unethical behavior that implicated certain aspects of the legal system (law school and federal judicial clerkships). While Avenatti is an unrepentant sleaze and what he did was abhorrent, I don't think his conduct quite rose to the same level as Martoma's in terms of either (1) its gravity or (2) its broader societal impact. Moreover, in Martoma's case there was a clear need for general deterrence, because insider trading is a recurring phenomenon that can be quite difficult to identify. I don't see a similar need in Avenatti's case. People attempting scams like his aren't exactly jumping out of the woodwork.

So in view of the above, and again, I agree with William in particular that 7 years seems like the most appropriate. Even Probation's 8 feels a bit excessive, although one could probably argue it's still at the outer limit of reasonableness.

As Joe mentioned, I do wonder what Avenatti hopes to get from his absurd lowball offer. Won't that just infuriate the judge? I sort of doubt the judge is going to see that and somehow be inspired to split the difference with the gov't/Probation.

On that note, I don't see the proposal from the gov't as so vague. It seems like they're basically in agreement with Probation, but they're still holding out hope the judge will go a bit higher. They're not taking an express position because that might come across as greedy I guess? I also suspect they're happy to let Avenatti dig his own grave with the ridiculous lowballing.

BTW, Avenatti's Wikipedia page has a nice catalogue of all the various proceedings he's facing.

Posted by: hardreaders | Jun 19, 2021 11:11:56 PM

The other comments seem reasonable.

The govt not being too specific makes sense, but the article is still unclear about what they want. So, we have to assume. Vague.

I would add this guy was for a bit a flavor of the month that appealed to some liberal types (and I guess others), but was shown to be a dubious type who caused some real harm to the cause. His actions during the Kavanaugh nomination come to mind.

To the degree this type of behavior crossed legal lines, it factors into how he should be sentenced. As usual with this game, it depends on "going rate" factors that others know more about. But, I think it still allows some useful musings.

Posted by: Joe | Jun 20, 2021 6:13:50 AM

To be clear, my concern is he is a grifter who has shown some public appeal that can result in harm to the public.

How that would express itself might not be the same as the specific crime here, but he has shown a specific tendency to cross the line. This isn't some sort of one off with limited chance of further harm.

If there is enough evidence of legal breaches, as general matter (all I personally am aiming for), that would matter here for me personally.

Posted by: Joe | Jun 20, 2021 6:22:29 AM

I see attorney extortion for their own benefit rather than their client as something that very specifically is deserving of specially harsh treatment. Give him the statutory maximum.

Posted by: Soronel Haetir | Jul 8, 2021 11:44:21 AM

There are really two crimes here: 1) the abuse of Avenatti's position of trust vis-a-vis his client, who provided him with confidential information during privileged communications (misappropriating client's information for his personal gain, up to $25 million); and 2) trying to extort NIKE, where he was effectively acting as a private individual and not as an attorney representing a client. I think he deserves at least the Guidelines minimum sentence of 135 months, to punish and deter. Federal criminal law gives defendants nothing for the collateral consequences of losing one's professional license and livelihood. This man is a narcissist and a predator, and the word needs to get out to others like him (of which I have seen tooo many among the ranks of attorneys).
This reminds me of a famous Georgia car wreck and personal injury lawyer, Robert Falanga, who became the darling of Georgia chiropractors by suing Aetna in a class action, for bad faith refusal to pay compensation for soft tissue injuries that were treated by the chiropractors. Aetna settled the case, paid the chiropractors and agreed to change their practices going forward. Attorney Falanga was also a Formula 1 race car driver. The next racing season, Falanga's race car bore the Aetna logo, and it was learned that he had cut a side deal that his clients never knew about, for Aetna to sponsor his race for for $100,000 per year, as part of settling the class action lawsuit. Falanga is so wealthy that he has even been known to sue the State Bar of Georgia in Federal Court, as a tactic for resolving Bar Grievances (including abandoning a client, whose civil lawsuit was then dismissed) on favorable terms

Posted by: Jim Gormley | Jul 8, 2021 11:56:51 AM

The irony of all of this is he has his fraud trial starting in six days. You would think that would weigh into the judges mind. he still has two more fraud trials AFTER the next one.

Posted by: Ronald | Jul 8, 2021 11:57:31 AM

Tom Winter (NBC): "NEW: Michael Avenatti, best known for his representation of Stormy Daniels in her legal pursuits against Donald Trump has been sentenced to 2.5 years after Avenatti was found guilty of trying to extort over $20 million dollars."

Posted by: Joe | Jul 8, 2021 3:04:19 PM

Avenati should have got at least 9 years. He was arrogant. He was blatant. He got a break from a judge for no reason. The judge should be removed and disbarred. You want to encourage arrogant blatant criminal behavior? Coddle the Avenati criminal. The only good news is that he's facing even more charges. Perhaps a truly impartial judge will sentence him justly and correctly on these other charges.

Posted by: restless94110 | Jul 8, 2021 10:22:14 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB