By Dave Simpson

Law360 (September 11, 2020, 5:45 PM EDT) -- Embattled attorney Michael Avenatti told a California federal judge Friday that prosecutors' supposed data supporting sending him back to prison until his trial on charges of embezzling client funds is "unreliable and inadmissible."

The celebrity lawyer asked the court not to consider numerous sections of prosecutor Brett A. Sagel's declaration, arguing that it lacks "reliability and semblance of foundation."

"For instance, in its objections, the defense explained in detail why the claims made in the declaration were unreliable and lacking in foundation, including the unbelievable claim that there have been 'zero infected inmates' at the Santa Ana Jail for much of the last six months," he said.

There's no indication that the U.S. attorneys have first-hand knowledge of the conditions at the jail, Avenatti said, and they never explain what information they reviewed to come to their conclusions.

Earlier this month, prosecutors asked a California federal judge to send Avenatti back to prison, citing "clear and convincing" evidence that he used a computer to draft court documents, in violation of his release conditions.

The government raised concerns back in June that Avenatti was accessing the internet through a computer owned by his bail-release custodian and longtime friend Jay Manheimer. Avenatti was temporarily released from a Manhattan prison in April amid the coronavirus pandemic following his conviction for extorting Nike. The conditions of his release included an agreement not to use any device with internet access, court records show.

But U.S. District Judge James Selna, who is overseeing a separate embezzlement case against Avenatti in California, said in July that the situation needed further investigation and extended his release to Sept. 21.

In a filing last week, prosecutors said that more information has since come to light showing that Avenatti used Manheimer's computer to draft several filings in the litigation. Specifically, prosecutors cited a digital forensic examination report concerning the laptop that was released to the government Aug. 28 in combination with Manheimer's testimony. 

"In direct violation of this condition, defendant used Manheimer's computer to personally draft or edit pleadings in this case, including a status report in which defendant claimed that he could not prepare for trial in this matter because his release conditions prevented him from using a computer to review discovery or work on motions," prosecutors said.

The forensic report showed that Manheimer's computer had been used to create Microsoft Word documents and PDFs and to send and receive emails, although it could not be determined whether Avenatti was the person preparing the documents, the government said.

Metadata for five of Avenatti's court filings between late May and early June show that the author of the documents was Manheimer and that they were created on Manheimer's MacBook computer, according to the government.

At a June deposition, prosecutors grilled Manheimer on Avenatti's use of the internet and computers at Manheimer's two-bedroom home in Venice, California.

"Manheimer claimed that he did not recognize those documents, did not recall what he did to assist with the documents and did not recall what defendant had done to prepare the documents," prosecutors said last week.

During the deposition, Manheimer said repeatedly that he doesn't believe Avenatti has gone online since he's moved into his house, and said he has taken steps to ensure Avenatti can't surf the web by requiring passwords to access the internet.

Manheimer later backtracked on some of his statements, including his mistaken belief that Avenatti could use the computer as long as the internet was "turned off," the government said.

"Whether the internet was temporarily turned off is irrelevant since Manheimer's MacBook was undoubtedly a device that 'offer[s] or allow[s] internet access,'" prosecutors said. "Manheimer's testimony that defendant used this computer thus proves that defendant violated his temporary release conditions."

The court has since allowed Avenatti access to an internet-disabled computer so he can view the discovery documents in his case.

Avenatti indicated in an August status report that he intends to request another 60-day extension of his release, but the government urged the court last week to deny any extension request as an alternative to immediate termination.

It also requested that Manheimer be replaced as custodian if Avenatti's release is extended, arguing that Manheimer "is either unable or unwilling to properly supervise defendant."

Avenatti is charged in California with embezzling client funds, and in February he was found guilty of extorting Nike in the separate New York case. He also faces another federal prosecution in New York for allegedly stealing hundreds of thousands of dollars owed to high-profile client Stormy Daniels from her book deal.

Judge Selna previously revoked Avenatti's bail in January after finding probable cause that he committed mail and wire fraud shortly before the Nike trial. The celebrity lawyer spent the following four months at the Metropolitan Correctional Center in Manhattan until his release due to coronavirus concerns. 

The California case is set to go to trial Dec. 8.

The government is represented by Julian L. Andre and Brett A. Sagel of the U.S. Attorney's Office for the Central District of California.

Avenatti is represented by H. Dean Steward.

The case is U.S. v. Michael Avenatti, case number 8:19-cr-00061, in the U.S. District Court for the Central District of California.

--Additional reporting by Lauren Berg and Reenat Sinay. Editing by Philip Shea.

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