A federal judge on Tuesday declared a mistrial in Michael Avenatti's wire fraud trial after the U.S. Department of Justice disclosed new financial data from his seized law firm servers, concluding Avenatti was "prejudiced in a number of ways" by not having the information to prepare his defense.

U.S. District Judge James V. Selna of the Central District of California said while he found no willful misconduct by the U.S. Attorney's Office, the procedure for reviewing materials seized in the March 2019 raids at Avenatti's law offices and his paralegal's home didn't turn up all relevant financial records, and the team's leader "has fairly acknowledged that there may have been some shortcomings in the review process." A new trial is scheduled to begin Oct. 12; Selna rejected prosecutors' requests to only adjourn trial to allow Avenatti to review the new material and then recall witnesses.

Selna said the failure to disclose the data wasn't willful and was instead "inadvertent and a failure to appreciate what was there." The judge said prosecutors were obligated to produce the material, which he deemed "favorable" to Avenatti, regardless of specific requests by Avenatti, not only under the Brady v. Maryland exculpatory evidence case law but also the judge's specific pre-trial orders.

"He's entitled to just sit back and wait for you to serve it on a platter. Agreed?" Selna asked Assistant U.S. Attorney Brett Sagel.

"If it's in our possession," Sagel answered.

Sagel's answer touched on a point pushed by Assistant U.S. Attorney Patrick Fitzgerald, who led the so-called taint team that reviewed Avenatti's files and was ordered into court by Selna to explain the Tabs situation: Case investigators and prosecutors are separate from the investigators and prosecutors who comprise the taint team, and none were involved in the search of Avenatti's servers. Further, Fitzgerald has said he doesn't believe the newly released financial data could technically be considered to have been in the government's possession, because it wasn't captured when the search warrants were first executed back in 2019.  

However, Avenatti elicited testimony during his case in chief that showed his paralegal told investigators during interviews in July 2019 and November 2019 that the law firm used Quickbooks and the Tabs billing software, yet no one tried to look for Tabs data. Avenatti was given Quickbooks information from the servers, but the newly disclosed information includes Quickbooks files he says prove the information used by prosecutors was outdated. He motioned for mistrial Aug. 15, and Selna on Aug. 20 reopened a search warrant for digital devices seized in spring 2019.

The judge's extraordinary order, issued as the trial was entering its sixth week of testimony, allowed federal agents to search the devices again at Avenatti and his defense team's direction regarding Tabs and other financial data. Avenatti filed a nine-page report Monday night saying he'd received nearly 2,000 new files with more still needed to be disclosed, and he decried the late disclosure as highly prejudicial.

He summarized his longstanding efforts to obtain all his firm's financial data, and he read aloud from Selna's previous orders regarding discovery disclosures, including exculpatory evidence under Brady v. Maryland, as well as previous statements by Sagel and then Assistant U.S. Attorney Julian Andre, who left the case in February for a partnership at McDermott Will & Emery, that he'd received everything they needed.

Avenatti also noted that Sagel once said no exculpatory evidence exists in the case, then told Selna, "Your honor, to be clear: The Tabs data could only be exculpatory. It could never be inculpatory. It could never increase the amount of money that was owed to the clients. It would only decrease the amount of money that was owed to each of the clients by it's very nature."

"Because it did not track income or revenue. It only tracked case expense. And I would submit, your honor, that is why the government never made an effort to produce it or provide it, because, by it's very nature, it was exculpatory," Avenatti said Tuesday. He said prosecutors interjected Tabs into the trial by entering as exhibits two Tabs costs and fee summaries for two settlements Avenatti is accused of misappropriating, which they found as attachments in his paralegal's email.

"There can be little question at this point that the government considered it relevant and material. That's why they used it," he said. Avenatti also said the claim that the information wasn't in the government's possession is demonstrably false. 

"Your honor, they didn't leave the box behind in the attic. They took all of the boxes out of the attic," Avenatti said.

In his argument, Sagel told the judge Tuesday that the information newly disclosed to Avenatti on Monday isn't exculpatory, and that any client payments or costs that may be revealed occurred after he'd commenced his wire fraud scheme by lying to his clients. The Tabs summaries used as exhibits match bank transactions Avenatti initiated shortly after receiving them.

Sagel's been on the case since its inception and was present when paralegal Judy Regnier's home was searched in March 2019. He and Assistant U.S. Attorney Alex Wyman, who joined the case when Andre left in February, differentiated for jurors the clients' original settlement money versus small payments Avenatti gave them after he lied about their settlements. Those payments came from other funds, sometimes other settlement money. Avenatti was allowed to keyword search the servers through a government agent, but he never asked to search for Tabs data, and Sagel said Tuesday that's because he knows it wouldn't actually help him.

But Avenatti repeatedly asked for, among other information, all financial data, and he's long argued much of it is missing. He didn't specifically say Tabs, but he's said recently that prosecutors are trying to shift the burden of proof to him by focusing on that. 

The judge said Tuesday Avenatti "clearly articulated" how he could have fashioned his defense to incorporate the information, from his opening statement to his cross-examination of government expert John Drum, who prepared a series of charts about Avenatti's law firm finances based on data Avenatti said is outdated. He said maybe the new information will show the numbers should be lower or higher, but either way, it was Avenatti's right to have it.

Fitzgerald, who didn't attend the trial but had been in Selna's courtroom for pre-trial litigation, forcefully pushed back against Selna's reasoning, telling the judge that if "the court" thinks this is a simple Brady issue, "It's wrong on the facts, and it's wrong on the law."

Avenatti objected to Fitzgerald advocating for prosecutors when he was purporting to be uninvolved through the taint team.

 "I agree. Mr. Fitzgerald was here to bring the facts to the court, not argue the law," Selna said.

Fitzgerald went onto say the search wasn't perfect, and that if the new information had been seized initially "we would definitely have said that it, A, is not privileged and that, B, it certainly is relevant."

Avenatti noted in his rebuttal that Fitzgerald and prosecutors were happy to work together "when it benefited the government as it related to preparation for trial." He also said that Prosecutors have never tried to say they weren't in constant contact with the taint team.

Selna referenced much of the trial testimony and previous filings and order that Avenatti did, pointing particularly the government's memo from a November 2019 interview with Regnier, the paralegal. A line in the memo says the firm used two systems to track expenses, and specifically named Quickbooks and Tabs. That shows the government "was fully on notice about the significance of the Tabs data." He said it could have been relevant in all settlements, including the two for which Tabs summary sheets were included as exhibits.

U.S. Treasury Special Agent Remoun Karlous said in his direct exam with Avenatti that the information couldn't be relevant to the other two cases because one was so short and the other entailed a 7.5% contingency rate. But the judge said Tuesday Tabs data could be relevant to those cases, too. Avenatti is charged with 10 counts of wire fraud, which doesn't require proof of a specific amount, but, Selna said, "I think the defendant was entitled to have that data to put that question mark there."

Selna's order is a huge win for Avenatti, who chose to represent himself just before the jury was empaneled July 20, then persuaded Selna to reverse his decision to quash subpoenas for Karlous, the co-lead investigator, and other federal agents. He pushed the Tabs issue to the forefront of his defense, asking Karlous and others "What is Tabs?" He then highlighted their lack of effort to obtain the data. He used the memos from Regnier's 2019 interviews to show Karlous knew about Tabs far earlier than he first said he believed he did, and he repeatedly pressed Selna for the information, so many times the judge told him to stop doing so because the issue would soon be addressed.

Flanked by his standby counsel H. Dean Steward and Courtney Cummings Cefali, Avenatti said outside Selna's courtroom, "This has been an incredibly difficult journey for my family, for my children, for my friends and lastly, for me. I am extremely thankful to Mr. Steward, Ms. Cummings Cefali and our entire team for standing by me and advocating tirelessly on my behalf."

"Today is a great day for the rule of law in the United States of America," Avenatti said.

Prosecutors didn't comment as they left Selna's courtroom Tuesday, and U.S. Attorney Office spokesman Thom Mrozek said in an email, "Because the matter is still pending, we have no comment on today's ruling."

Avenatti is to report to federal prison Sept. 15 to begin a 30-month sentence for convictions in the Southern District of New York related to an extortion plot against Nike. He also faces trial in the Central District of California for bankruptcy and tax fraud charges; Selna bifurcated those counts from the 10 wire fraud charges. A third trial also is scheduled in January, for federal wire fraud and identify theft charges related to an alleged theft against the client who propelled him to fame in 2018, adult film star Stormy Daniels. 

Selna scheduled a status conference on the wire fraud counts for Sept. 2 to discuss "overall timing of the case." Oct. 12 is the trial date, though the judge said he'll be out of town Oct. 17 through Oct. 24, so that could change. 

Avenatti said he wants the mistrial to be "with prejudice," meaning prosecutors can't retry him, but Selna said the "strong presumption" is when a mistrial is granted at the defendant's request, a new trial is proper. But he said Avenatti can file a brief.