Avenatti Fails to Get Supreme Court Look at Identity Theft Case

The US Supreme Court declined on Tuesday to hear celebrity lawyer Michael Avenatti’s case challenging his aggravated identity theft conviction related to his representation of adult film star Stormy Daniels.

Avenatti was found guilty in 2022 of wire fraud and aggravated identity theft after misappropriating nearly $300,000 in payments to Daniels, whose real name is Stephanie Clifford, from the publisher of her planned memoir.

He was sentenced to a total of four years’ imprisonment: 24 months for wire fraud and a consecutive 24-month term mandated by the aggravated identity theft statute.

Avenatti argued in his petition for Supreme Court review that the US Court of Appeals for the Second Circuit applied the wrong standard when it upheld his conviction in March.

Dubin v. United States provides that liability under that law may only arise when improper use of another person’s identification is at the “crux” of what makes the underlying offense criminal. If the identity theft was merely ancillary to the underlying offense, the mandatory two-year enhancement shouldn’t apply.

According to Avenatti, when the Second Circuit upheld his aggravated identity theft conviction, it held that misuse of another’s identification need only play a “key role” in the underlying criminal conduct.

Citing Webster.com Dictionary, Avenatti says “crux” refers to “an essential point requiring resolution or resolving an outcome,” while the word “key” is defined as “extremely or crucially important.” The former, he claims, is far less outcome-determinative than the latter.

The Second Circuit said identity theft was an “essential part” of his overall criminal conduct.

“Avenatti initially sought to divert money from his client without forging her signature, but his client’s literary agent refused to allow the diversion unless the client authorized it,” the court said in its summary order. “Only then did Avenatti instruct an employee to forge his client’s signature for the purpose of wrongfully obtaining her money.”

The government waived its right to respond.

Justice Brett Kavanaugh didn’t take part in consideration of the petition.

Avenatti is represented by an attorney with the Federal Defenders of New York Appeals Bureau.

The case is Avenatti v. United States, U.S., No. 24-5557, cert. denied 10/15/24.