Disgraced celebrity attorney Michael Avenatti argues that a pair of Supreme Court rulings further weakening federal anti-corruption laws must void one of his convicted counts in his Nike extortion case.
In 2020, a federal jury found Avenatti guilty of three charges related to his threat to expose a corruption scandal at Nike unless they paid him more than $20 million. He claimed to have been engaged in hardball negotiations. Federal prosecutors said that Avenatti had been betraying his client for personal gain and broke the law in the process. It was the first of three federal cases from coast to coast that would earn Avenatti a lengthy prison sentence, with a release date currently scheduled for 2036.
Whatever the result of Avenatti’s latest maneuver, he’s likely to continue to spend an extensive stint behind bars, but his attorney used the Supreme Court’s precedent to try to destabilize his conviction for honest services fraud, one of his three charges of conviction.
Avenatti argues that the charge is no longer viable under a precedent established by a pair of Supreme Court rulings, unanimously chipping away at anti-corruption statutes.
One overturned the convictions of Joseph Percoco, a former “right-hand man” to ex-New York Gov. Andrew Cuomo, and contractor Louis Ciminelli, who was involved in a development project championed by the former governor.
“Percoco and Ciminelli support Michael Avenatti’s argument that his honest services fraud conviction violates the Fifth Amendment’s prohibition on vague criminal laws […] and improperly stretches federal criminal jurisdiction to the state civil domain of regulating the practice of law,” his attorney Daniel Habib, from the Federal Defenders of New York, wrote.
In Percoco’s case, the Cuomo deputy wasn’t officially in office but worked for the then-governor’s campaign when he accepted $35,000 from a company that wanted help with New York’s Empire State Development agency. The Supreme Court found the jury wasn’t properly instructed about how to consider Percoco’s enduring government ties.
Avenatti said that the same principle applied to him as a private person.
“Percoco overruled this court’s precedents that a private person could be convicted of honest-services fraud if he has a ‘special relationship’ with the government and ‘dominated and controlled’ government business,” Avenatti’s letter notes.
Both SCOTUS decisions were unanimous rulings of the court. The first was authored by Justice Samuel Alito, and the latter was written by Justice Clarence Thomas.
That second decision, the Ciminelli case, unraveled the government’s “right-to-control” theory, holding that someone can be found guilty of wire fraud for scheming to deprive the victim of “potentially valuable economic information” needed for “discretionary economic decisions.”
For Avenatti, that ruling was a repudiation of government overreach behind the so-called “right to control.”
“That theory ‘vastly expands federal jurisdiction without statutory authorization,'” Avenatti’s filing states. “It ‘makes a federal crime of an almost limitless variety of deceptive actions traditionally left to state contract and tort law’ — or attorney disciplinary proceedings — ‘in flat contradiction of our caution that … courts should ‘not read the mail [and wire] fraud statute[s] to place under federal superintendence a vast array of conduct traditionally pursued by the States.’”
Avenatti isn’t the only high-profile criminal defendant to quickly make hay out of the Percoco and Ciminelli.
Late last week, accused cryptocurrency fraudster Sam Bankman-Fried claimed that one of those rulings would torpedo five of the charges against him. A federal judge has not yet ruled on that argument.
Read Avenatti’s filing here.
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