Case 1:19-cr-00374-JMF Document 85 Filed 08/28/20 Page 1 of 4

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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UNITED STATES OF AMERICA,
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-v:
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MICHAEL AVENATTI,
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Defendant.
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19-CR-374 (JMF)
ORDER

JESSE M. FURMAN, United States District Judge:
The Court received the attached communication from Matthew Lee of Inner City Press
“seeking leave to be heard and for the unsealing of the CJA Form 23, affidavit, and all associated
documents” relating to this litigation. To the extent that Mr. Lee (who is admitted to the bar of
the Southern District of New York) seeks leave to be heard, his application is GRANTED. The
Court reserves judgment on the question of whether Defendant’s CJA Form 23 and related
documents should be unsealed.
SO ORDERED.

Dated: August 28, 2020
New York, New York

__________________
_ _____________
__________________________________
FURMAN
JESSE M. FURMAN
United States District Judge

 Case 1:19-cr-00374-JMF Document 85 Filed 08/28/20 Page 2 of 4

From:
To:
Cc:
Subject:
Date:
Attachments:

Matthew R. Lee
Furman NYSD Chambers
Robert Baum; Andrew Dalack; robert.sobelman@usdoj.gov; matthew.podolsky@usdoj.gov
Motion for Leave To Be Heard, and to unseal CJA Form 23 and associated documents including affidavit in US v.
Avenatti, 19-cr-374 (JMF)
Thursday, August 27, 2020 2:23:22 PM
furmanavenattiunsealicpreq082820.html.docx

August 27, 2020
By E-mail to Furman_NYSDChambers@nysd.uscourts.gov
Hon. Jesse M. Furman, United States District Judge
Southern District of New York, 40 Foley Square, New York, NY 10007
Re: Motion for Leave To Be Heard, and to unseal CJA Form 23 and associated
documents including affidavit in US v. Avenatti, 19-cr-374 (JMF)
Dear Judge Furman:
Pursuant to this Court's August 7, 2020 Order, this is a motion seeking leave
to be heard and for the unsealing of the CJA Form 23, affidavit and all
associated documents in US v. Avenatti, 19-cr-374 (JMF).
Formally, PLEASE TAKE NOTICE that Inner City Press and its undersigned
reporter, in personal capacity, will move this Court before Honorable Jesse M.
Furman, U.S. District Judge for the Southern District of New York, at a date
and time directed by the Court, for entry of an order granting permission to the
heard on/and the unsealing of the CJA Form 23 and associated documents
including but not limited to affidavit in US v. Avenatti, 19-cr-374 (JMF)
pursuant to Docket No. 86 in that case and the Court's inherent power, and such
other and further relief as the Court deem just and proper.
As the Court is aware, the public and the press have a presumptive First
Amendment and common law right of access to criminal proceedings and
records. See Press Enterprise Co. v. Superior Court of California, 464 U.S. 501,
508 (1984). The presumption of openness can only be overcome if “specific, on
the record findings are made demonstrating that closure is essential to preserve
higher values and is narrowly tailored to serve that interest.” Press–Enterprise
Co. v. Superior Court, 478 U.S. 1, 13-14 (1986)
Non-parties such as Inner City Press and myself have standing to intervene in
criminal proceedings to assert the public’s right of access. United States v.
Aref, 533 F.3d 72, 81 (2d Cir. 2008).
Only this month in SDNY Magistrates Court the content of CJA Form 23s
have been read out in the public record, including for the appointment of
Federal Defenders. See, e.g., US v. Castro, et al., 20-mj-8994 (Freeman) &
http://www.innercitypress.com/sdny270fifthfreemanmassicp082420.html

 Case 1:19-cr-00374-JMF Document 85 Filed 08/28/20 Page 3 of 4

Those and other defendants whose CJA Form 23 and financial information
have been disclosed including in Magistrates Court this month had the same
arguments as made by Federal Defenders in their August 21, 2020 letter, that
the information might be used against them. And yet the other defendants'
information was disclosed.
While Inner City Press' interests are journalistic, since Federal Defenders
states that "there is no dispute over Mr. Avenatti's eligibility to be represented
by Federal Defenders of New York, Inc., " for the record consider this letter as
disputing that, including in light of the sums of money discussed and proved in
the Nike trial before Judge Gardephe. If despite this defendant still claims there
is no dispute about eligibility, consider this a request for a hearing (or
additional, focused letter briefing) on that issue.
As stated in US v. Harris, 707 F.2d at 663 (which Federal Defenders asserts
is distinguishable but we contend is not), facts should be determined through
adversarial proceedings.
While beyond the scope of this letter, the Court could limit the use in this
case by the prosecution of the unsealed information, without unnecessarily
overriding the presumption of public access.
Here, the sealing(s) and withholding of the CJA Form 23 and affidavit in their
entirety go beyond those requested even in the CIA trial before Judge Crotty,
US v. Schulte, 17 Cr. 548.
In that case, Inner City Press vindicated the public's right to know, in the
docket, see https://twitter.com/big_cases/status/1232758559408087041 and
https://www.usatoday.com/documents/6786787-Docket-Annotation
Inner City Press recently got even more sensitive filings unsealed in a North
Korea sanctions case before Judge Castel, US v. Griffith, 20-cr-15 (PKC),
Docket No. 33 (LETTER by EMAIL as to Virgil Griffith addressed to Judge P.
Kevin Castel from Matthew Russell Lee, Inner City Press, dated 5/18/2020, re:
Press Access to documents in US v. Griffith, 20-cr-15), 40 (order to unseal) and
41 unsealed filings). See also Inner City Press' May 9, 2020, filing to this Court
for openness in US v. Randall, 19-cr-131, No. 343.
The U.S. Supreme Court has recognized that reporting by the news media
allows members of the public to monitor the criminal justice system without
attending proceedings in person. Richmond Newspapers, Inc. v Virginia, 448
U.S. at 572-73 (1980). By attending and reporting on court proceedings,
members of the press "function[] as surrogates for the public." Id. at 573.
Inner City Press has covered the case(s) against Mr. Avenatti for some time,
see e.g., May 13, 2020, ESPN Louisville Sports Live, "On this episode of LSL,
the guys speak court reporter, Matthew Russell Lee about the lack of fallout
from the evidence exposed about Nike in the Michael Avenatti trial,"
http://louisvillesportslive.net/lsl-podcast-matthew-russell-lee-daniel-wallach/

 Case 1:19-cr-00374-JMF Document 85 Filed 08/28/20 Page 4 of 4

We further note that Mr. Avenatti has, according to Doubleday, threatened to
sue for recent reporting on him. There is substantial public interest in this case,
and defendants in this District should be treated similarly.
Inner City Press and I are submitting this a day early in part because we are
unsure if the US Attorney's Office will be pushing for openness to the public.
In another pending case, US v. Edwards, 19-cr-64 (GHW), the Office had
initially said that documents submitted by the defendant (described as the
leaker of Paul Manafort's Suspicious Activity Reports) should be put in the
public docket. Then, while Inner City Press is pursuing that, the US Attorney's
Office has stopped pushing. So, just to preview, we may seek leave to sur-reply
depending on what not only the defendants / Federal Defenders but also the US
Attorney's Office have to say.
Federal Defenders say that the US Attorney's Office lacks third-party
standing to assert any right on behalf of the public to access the defendant's
sworn financial statements, cited US v. Hickey, 185 F.3d 1064 (9th Cir. 1999).
But here, Inner City Press is timely asserting the public and press' right of
access.
The documents at issue should not be sealed and should be made available.
Please confirm receipt & docket this timely responsive filing. Thank you.
Respectfully submitted,
/s/
Matthew Russell Lee, Inner City Press
cc: robert_baum@fd.org, andrew_dalack@fd.org
robert.sobelman@usdoj.gov, matthew.podolsky@usdoj.gov