812 F.3d 578 (7th Cir. 2016), 14-1869, United States v. Trudeau

Docket Nº:14-1869
Citation:812 F.3d 578
Opinion Judge:Sykes, Circuit Judge.
Party Name:UNITED STATES OF AMERICA, Plaintiff-Appellee, v. KEVIN MARK TRUDEAU, Defendant-Appellant
Attorney:For United States of America, Plaintiff - Appellee: Marc Krickbaum, Attorney, Office of The United States Attorney, Chicago, IL. For Kevin Trudeau, Defendant - Appellant: Kimball R. Anderson, Attorney, Thomas L. Kirsch II, Attorney, Winston & Strawn LLP, Chicago, IL.
Judge Panel:Before EASTERBROOK, ROVNER, and SYKES, Circuit Judges.
Case Date:February 05, 2016
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
SUMMARY

Trudeau “spent his career hawking miracle cures and self-improvement systems of dubious efficacy.” The FTC sued him under consumer-protection laws. Trudeau entered a consent decree, promising not to misrepresent his books in TV infomercials. Later, Trudeau published The Weight Loss Cure “They” Don’t Want You to Know About and promoted it in infomercials, as “simple” and “inexpensive,” able to be ... (see full summary)

 
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812 F.3d 578 (7th Cir. 2016)

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

KEVIN MARK TRUDEAU, Defendant-Appellant

No. 14-1869

United States Court of Appeals, Seventh Circuit

February 5, 2016

Argued February 24, 2015

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[Copyrighted Material Omitted]

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Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 10 CR 886 -- Ronald A. GuzmÁn, Judge.

For United States of America, Plaintiff - Appellee: Marc Krickbaum, Attorney, Office of The United States Attorney, Chicago, IL.

For Kevin Trudeau, Defendant - Appellant: Kimball R. Anderson, Attorney, Thomas L. Kirsch II, Attorney, Winston & Strawn LLP, Chicago, IL.

Before EASTERBROOK, ROVNER, and SYKES, Circuit Judges.

OPINION

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Sykes, Circuit Judge.

Kevin Trudeau spent his career hawking miracle cures and self-improvement systems of dubious efficacy. When the Federal Trade Commission sued him for violating consumer-protection laws, Trudeau agreed to a consent decree in which he promised not to misrepresent the content of his books in TV infomercials. A few years later, Trudeau published The Weight Loss Cure " They" Don't Want You to Know About and promoted it in three infomercials. The ads said the weight-loss protocol was " simple" and " inexpensive," could be completed at home, and did not require any food restrictions or exercise. The book, on the other hand, described an arduous regimen mandating prescription hormone injections and severe dietary and lifestyle constraints.

The district court imposed a civil contempt sanction and then issued an order to show cause why Trudeau should not be held in criminal contempt and face a penalty of up to six months' imprisonment. At Trudeau's request the case was transferred to a different judge. The new judge issued an amended show-cause order that removed the six-month penalty cap. Trudeau was convicted and sentenced to ten years in prison.

On appeal Trudeau leaves no stone unturned. His primary argument concerns an alleged violation of the Speedy Trial Act. See 18 U.S.C. § § 3161 et. seq. More than 70 nonexcludable days elapsed between the date the government agreed to prosecute the first show-cause order and the commencement of trial under the second show-cause order. Trudeau moved to dismiss for violation of the Act. The district judge denied this motion. He was right to do so. The Act applies only to crimes punishable by more than six months' imprisonment. Because the first show-cause order capped the potential penalty at six months, the Act did not apply. The second show-cause order removed the cap, triggering the Act's 70-day clock, but Trudeau's trial began within the mandatory timeframe counting from that date. There was no Speedy Trial Act violation.

Trudeau raises an array of other issues as well: He challenges the jury instruction on " willfulness," the sufficiency of the evidence, two evidentiary rulings, and the reasonableness of his sentence. These arguments, too, are meritless. We affirm the contempt conviction and sentence.

I. Background

Trudeau's bag of tricks contains something to relieve almost any ailment or burden. His infomercials have peddled products like " Biotape" (to cure severe pain); " Coral Calcium Supreme" (to cure cancer); " Howard Berg's Mega Read" (to increase reading speed tenfold); and " Kevin Trudeau's Mega Memory System" (to unlock photographic memory). Because Trudeau's pitches are factually indefensible, the FTC has repeatedly pursued him for violating consumer-protection laws. To settle one of these suits, Trudeau agreed to the entry of a consent decree in which he promised not to market products without the FTC's approval. He soon decided he wanted more leeway to write books, however, and in September 2004 negotiated a modified consent order that permitted him to star in infomercials for his books provided that " the infomercial for any such book ... must not misrepresent the content of the book." Soon after, Trudeau released a book about " natural cures" and produced a promotional infomercial for it. Although the consent order did not require him to do so, Trudeau sent the transcript to the FTC, which indicated its approval. This ad aired without objection.

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In 2007 Trudeau published another book, The Weight Loss Cure " They" Don't Want You to Know About, which described a complex regimen designed to reduce hunger by " resetting" the hypothalamus. We detailed the book's weight-loss system in FTC v. Trudeau ( Trudeau I ) 579 F.3d 754, 758-59 (7th Cir. 2009), so we provide only a summary here. The regimen consists of four phases (two of which are " strongly recommended" but not obligatory), each with a strict list of dietary and lifestyle dos and don'ts. For example, most or all of the phases--including phase 4, which lasts a lifetime--involve abstaining from artificial sweeteners, chain restaurants, prescription and over-the-counter medication, food cooked in microwaves, air conditioning, and fluorescent lighting. Program participants are also instructed to walk an hour a day; eat only organic food; do liver, parasite, heavymetal, and colon cleanses; and receive colonics, which are enema-like procedures performed by specialists. Phase 2, which is mandatory and lasts between 21 and 45 days, is particularly arduous and requires a 500-calorie-per-day diet and daily injections of human chorionic gonadotropin, a hormone only available by prescription and not indicated for weight loss.

Trudeau promoted The Weight Loss Cure in three different 30-minute infomercials staged as scripted conversations between an interviewer and himself. But the protocol Trudeau talked about in the infomercials bore little resemblance to the one described in his book. In the ads he said that the weight-loss protocol was " very inexpensive," could be done at home, and was " the easiest [weight-loss] method known on planet Earth." He also represented that once the protocol was complete, dieters could eat " everything they want, any time they want." The weight-loss program described in the infomercials sounded too good to be true, and it was. Trudeau never mentioned the dietary or lifestyle restrictions, injections, cleanses, or colonics mandated in the book.

The FTC took Trudeau back to court for violating the 2004 consent order. The district court (Judge Gettleman presiding) found that the infomercials misrepresented the content of The Weight Loss Cure, despite Trudeau's jesuitical attempts to harmonize them. Judge Gettleman held Trudeau in civil contempt and entered a $37.6 million judgment against him, an amount equal to the gross revenue from books sold through the infomercials. We upheld the contempt finding in Trudeau I, id. at 768, and the monetary sanction in FTC v. Trudeau ( Trudeau II ), 662 F.3d 947, 949-50 (7th Cir. 2011).

After imposing the civil sanction, Judge Gettleman issued an order to show cause why Trudeau should not also be held in criminal contempt for the same conduct. Under this show-cause order, dated April 16, 2010, Trudeau faced imprisonment of not more than six months. On April 29, 2010, the U.S. Attorney's Office agreed to prosecute the case. At that time the prosecutor told the judge: " I think because this is a criminal proceeding, the Speedy Trial Act would ... apply." She sought and received an exclusion of time that same day, tolling the Act's 70-day clock. In the weeks that followed, the judge granted three subsequent requests for exclusion of time.

Trudeau eventually asked that the criminal proceedings be reassigned to a new judge. Judge Gettleman exercised his prerogative as a senior judge to have the case transferred. On October 19, 2010, it was reassigned to Judge GuzmÁn. Unfortunately, neither the government nor Trudeau received notice of the reassignment (or the new criminal case number), and the case sat idle until the parties discovered

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the oversight. A status hearing was finally held on April 7, 2011. By that time more than 150 non-excludable days had elapsed since the government agreed to prosecute Judge Gettleman's show-cause order.

At the April 7 hearing (and in subsequent briefing), Trudeau sought dismissal for violation of the Speedy Trial Act. The government responded that, properly understood, Judge Gettleman's show-cause order was outside the scope of the Act. The Act applies to " any case involving a defendant charged with an offense," 18 U.S.C. § 3161(a), and " offense" is defined as " any Federal criminal offense ... other than a Class B or C misdemeanor or an infraction," id. § 3172(2) (emphasis added). Federal crimes are generally classified based on their maximum penalty, and Class B misdemeanors are punishable by not more than six months' imprisonment. Id. § 3559(a)(7). Because Judge Gettleman's show-cause order capped Trudeau's sentence at six months, Judge GuzmÁn determined that it was analogous to a Class B misdemeanor and therefore the Act did not apply.

At the same April 7 hearing, the government asked Judge GuzmÁn to withdraw the initial show-cause order and issue an amended one without the six-month cap. The prosecutor argued that an uncapped order would be more appropriate given the serious nature of the contempt and Trudeau's history of disobeying court orders. On December 7, 2011, Judge GuzmÁn agreed to issue a new show-cause order and told the parties that the original order would be dismissed when the new one was entered. An amended, uncapped show-cause order issued the next day.

The contempt charge was tried to a jury over six days beginning on November 5, 2013. The parties agree that if the speedy-trial clock started when Judge GuzmÁn entered the new, uncapped show-cause order, the trial...

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