Fed. Trade Comm'n v. Trudeau

• Decision Date: 20 May 2010
• Docket Number: No. 10-1383.,10-1383.
• Citation: 606 F.3d 382
• Parties: FEDERAL TRADE COMMISSION, Plaintiff,v.Kevin TRUDEAU, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

606 F.3d 382

FEDERAL TRADE COMMISSION, Plaintiff,v.Kevin TRUDEAU, Defendant-Appellant.

No. 10-1383.

United States Court of Appeals, Seventh Circuit.

Argued April 8, 2010.

Decided May 20, 2010.

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David A. O'Toole (argued), Federal Trade Commission, Chicago, IL, for Plaintiff.

Kimball R. Anderson (argued), Winston & Strawn LLP, Chicago, IL, for Defendant-Appellant.

Gary S. Feinerman (argued), Sidley Austin, Chicago, IL, for Amicus Curiae.

Before MANION, ROVNER, and TINDER, Circuit Judges.

TINDER, Circuit Judge.

Kevin Trudeau was before us last year, on appeal from a district judge's order finding him in contempt of court, fining him nearly $40 million, and barring him from appearing in any infomercials for three years. We found that the district judge properly held him in civil contempt (he had violated the terms of a consent order barring him from misrepresenting the content of any of his books on TV) but remanded the case so that the penalty he incurred for his contempt conformed with the requirements of civil contempt. FTC v. Trudeau, 579 F.3d 754 (7th Cir.2009). We expressed no opinion on what his penalty should be but entrusted it to the sound judgment of the district court.

Trudeau is before us again. This time he's been sentenced to thirty days in jail after he was found in direct criminal contempt of court for his conduct during the civil contempt proceedings. (We discussed the difference between civil and criminal contempt in our prior opinion in this case id. at 769.) Trudeau, it seems, exhorted his devoted radio audience to send e-mails on his behalf directly to the court e-mail address of the district judge presiding over his case; he posted the radio broadcast on his web site, and followed it up with an e-mail blast asking his e-mail list to send e-mails to the judge. The district judge had not asked for any letters and the judge had not (he thought) made his e-mail address publicly available (it turns out Northwestern University Law School had listed it on its web site; the judge is an adjunct professor there). He was, therefore, surprised to see e-mail after e-mail come pouring into his inbox. He was also nervous. Most of the e-mails were polite and enthusiastic (“If loving the values Kevin Trudeau creates for society is wrong, I don't wanna be right!”), but some had threatening overtones (“Leave kevin and his right to free spach alone. I wish carma on your soul this very moment. may god touch you today.” [sic throughout] and “More people than you know are keeping a close eye on this case, not just the special interests who will benefit from Kevin's silence, but every-day regular people. We know that if he can be persecuted, so can we. We are awake to the tyranny slowly and quietly creeping into our society. We are watching.”). The judge alerted the marshal to the e-mails coming to his account, and the marshal performed a threat assessment to determine whether the judge was in danger. The judge received over 300 e-mails within a span of 36 or so hours.

Once the judge began to understand that all these e-mails were arriving at Trudeau's behest, he summoned Trudeau's lawyer (and the lawyer for the FTC) into court the next morning without explaining why. At that morning's session, the judge notified Trudeau's counsel that Trudeau could be facing a criminal contempt sanction and ordered Trudeau to appear that afternoon. He also instructed Trudeau's counsel to have Trudeau make the e-mails stop. Before he showed up later that day, Trudeau sent an e-mail to his listeners asking them to cease e-mailing the judge. Still, the judge summarily found Trudeau guilty of criminal contempt and, a week later, imposed the 30-day sentence. On Trudeau's motion we stayed the execution of the sentence and expedited his appeal. The FTC officially took no position on the criminal contempt judgment, and deferred to the United States Attorney, who also did not take a position. We, therefore, appointed an amicus to argue on behalf of the contempt judgment. ¹ We now consider whether Trudeau's summary punishment for direct criminal contempt was a proper exercise of the district court's authority.

Trudeau argues that his conviction is defective on both substantive and procedural grounds, and he does so in that order. Substantively, he contends that his conduct was not contemptuous, not punishable under the criminal contempt statute, 18 U.S.C. § 401, and that it was protected under the First Amendment. Procedurally, he disputes the judge's use of a summary procedure to convict him of contempt. He also questions the reasonableness of his sentence in the event that his challenges to the conviction fail. We think it makes the most sense to address the procedural aspects of the contempt conviction first because by the very nature of a summary proceeding at the district court, the record before us is rather sparse. A more complete record would be more appropriate for the full consideration of his substantive arguments. As you will see, Trudeau's substantive concerns will, for the most part, require further development.

Federal law, 18 U.S.C. § 401, confers upon a court the authority to punish by imprisonment “misbehavior of any person in its presence or so near thereto as to obstruct the administration of justice,” id. § 401(1), and “disobedience or resistance to its lawful writ, process, order, rule, decree, or command,” id. § 401(3). Conduct that violates § 401 is a crime, and generally contemnors are convicted through normal criminal process. See Int'l Union, United Mine Workers of America v. Bagwell, 512 U.S. 821, 826, 114 S.Ct. 2552, 129 L.Ed.2d 642 (1994). Federal Rule of Criminal Procedure 42(a) outlines the ordinary procedures necessary for a finding of criminal contempt. None of those procedures were followed in this case, because the judge proceeded under Rule 42(b), which allows for the summary punishment of direct criminal contempt. (If you read the older cases, you'll notice that in the past 42(a) described summary contempt procedures and 42(b) described the standard process. These provisions were rewritten and re-ordered in 2002. See Fed.R.Crim.P. 42 advisory committee notes to the 2002 amendments; In re Contempt Order, 441 F.3d 1266, 1267 n. 2 (10th Cir.2006)).

A finding of direct contempt is appropriate only if the criminal contempt occurred in the presence of the judge and “the judge saw or heard the contemptuous conduct and so certifies.” Fed.R.Crim.P. 42(b). Contempt in the presence of the court “must be punished on the spot to maintain the court's authority.” Mann v. Hendrian, 871 F.2d 51, 52 (7th Cir.1989). The use of the summary contempt power is proper only for “charges of misconduct, in open court, in the presence of the judge, which disturbs the court's business, where all of the essential elements of the misconduct are under the eye of the court, are actually observed by the court, and where immediate punishment is essential to prevent ‘demoralization of the court's authority’ before the public.” Pounders v. Watson, 521 U.S. 982, 988, 117 S.Ct. 2359, 138 L.Ed.2d 976 (1977) (per curiam) (quoting In re Oliver, 333 U.S. 257, 275, 68 S.Ct. 499, 92 L.Ed. 682 (1948)).

The fundamental principle in contempt cases is that the court must exercise the least possible power to the end proposed. United States v. Moschiano, 695 F.2d 236, 251 (7th Cir.1982) (citing United States v. Wilson, 421 U.S. 309, 319, 95 S.Ct. 1802, 44 L.Ed.2d 186 (1975)); see also Anderson v. Dunn, 6 Wheat. 204, 19 U.S. 204, 231, 5 L.Ed. 242 (1821). As applied to the direct contempt context, the least possible power principle instructs that summary disposition is proper only when “the express requirements of the rule are met and when there is a ‘compelling reason for an immediate remedy’ or time is of the essence.” Moschiano, 695 F.2d at 251; see In re Jafree, 741 F.2d 133, 135 (7th Cir.1984) (requiring that there be both a compelling reason for an immediate remedy and time is of the essence). If the literal requirements of the summary disposition rule are met, we review the district judge's decision to impose it for an abuse of discretion. Moschiano, 695 F.2d at 251-52. If there is an “explicit determination that there was a compelling need for an immediate remedy, we shall give appropriate deference to that finding.” Id. at 252. But, “in light of the serious potential for abuse of the summary contempt power ... we emphasize the special duty of an appellate court to give careful and meticulous consideration to the trial court's decision that summary disposition is appropriate.” Id.

“The Supreme Court has said that [summary contempt] is reserved for ‘exceptional circumstances' ” which include “acts threatening the judge or disrupting a hearing or obstructing court proceedings.” Id. at 250 (citing Harris v. United States, 382 U.S. 162, 164-65, 86 S.Ct. 352, 15 L.Ed.2d 240 (1965)). Absent those circumstances, the judge should proceed under Rule 42a's procedures. See id. “[T]he power of summary contempt is capable of grave abuse, and is properly regarded by the courts with extreme disfavor.” Id. (citations omitted). “Accordingly, the Supreme Court has indicated that the power of summary contempt is limited to cases in which immediate punishment is essential to prevent demoralization of the court's authority before the public, and that before the drastic procedures of the summary contempt power may be invoked to replace the protections of ordinary constitutional procedures there must be an actual obstruction of justice.” Id. at 250-51 (citations and internal quotations omitted).

The judge found the “presence” condition satisfied in this case because he could read the e-mails on the court's computers (including the computer in the courtroom) and his PDA which he carried with him so that he was “always in communication” with the court. Neither finding is sufficient to satisfy Rule 42's “presence” requirement. We resist th...