Federal Trade Commission v. Trudeau

In the

United States Court of Appeals
For the Seventh Circuit

No. 10-1383

F EDERAL T RADE C OMMISSION,
Plaintiff,
v.

K EVIN T RUDEAU,
Defendant-Appellant.

Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 1:03-cv-03904— Robert W. Gettleman, Judge.

A RGUED A PRIL 8, 2010—D ECIDED M AY 20, 2010

Before M ANION, R OVNER, and T INDER, Circuit Judges.
T INDER, 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
2 No. 10-1383

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
No. 10-1383 3

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.

1
We thank Gary Feinerman, of Sidley Austin, for his
exceptional service in this role.
4 No. 10-1383

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 (1994). Federal Rule of Criminal Procedure
42(a) outlines the ordinary procedures necessary for a
finding of criminal contempt. None of those procedures
No. 10-1383 5

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
im m ediate punishm ent is essential to prevent
‘demoralization of the court’s authority’ before the public.”
Pounders v. Watson, 521 U.S. 982, 988 (1977) (per curiam)
(quoting In re Oliver, 333 U.S. 257, 275 (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 State s v. Wilson, 421 U.S. 309,
319 (1975)); see also Anderson v. Dunn, 19 U.S. 204, 231
6 No. 10-1383

(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 (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
No. 10-1383 7

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 the district court’s suggestion that the term
“presence” should be expanded to reach beyond the
judge’s actual, physical presence. While the Supreme Court
has held that “the court, at least when in session, is present
in every part of the place set apart for its own use, and for
the use of its officers, jurors, and witnesses; and
misbehavior anywhere in such place is misbehavior in the
presence of the court,” Ex parte Savin, 131 U.S. 267, 277
(1889) (finding that witness-tampering that occurred in the
jury room and court hallway occurred in the court’s
presence), the language of Rule 42(b) specifically requires
that the judge “saw or heard the contemptuous conduct,”
see Cooke v. United States, 267 U.S. 517, 535-36 (1925)
(distinguishing the contempt at issue in Savin with
contempt “under the eye or within the view of the
court”). This requirement indicates that the act itself
8 No. 10-1383

must be committed in the judge’s presence; that its
effects are felt by the district judge is insufficient to
justify summary disposition. Pounders, 521 U.S. at 988
(recognizing that summary disposition is only appropriate
where “all of the essential elements of the misconduct
are under the eye of the court [and] are actually observed
by the court”); Cooke, 267 U.S. at 534. Expansion of the
term to encompass the “virtual presence” of the court
also runs afoul of the limiting principles indicated by
the Rule’s language and the contempt jurisprudence we
discussed above. See Moschiano, 695 F.2d at 250; cf. United
States v. Thompson, 599 F.3d 595, 600 (7th Cir. 2010)
(vacating the revocation of defendant’s supervised release
because defendant’s revocation was conducted via
videoconference); United States v. Lawrence, 248 F.3d 300,
304 (4th Cir. 2001) (vacating sentence where defendant
appeared via videoconference at sentencing hearing and
noting that “presence means physical presence”).
Furthermore, Rule 42(b) specifically limits the contempt
necessary for summary disposition to conduct in
the presence of the judge, while § 401(1) punishes both
conduct in the presence of the court and conduct “so near
thereto as to obstruct the administration of justice.”
Rule 42(b)’s omission of this latter category of conduct
convinces us that we should construe the term
“presence” narrowly in the context of summary
disposition. See Cooke, 267 U.S. at 536 (“When the contempt
is not in open court, however, there is no such right or
reason in dispensing with the necessity of charges and
the opportunity of the accused to present his defense by
witnesses and argument.”).
No. 10-1383 9

The narrow construction makes sense in this case.
Despite his statement that he relied on no extrinsic
evidence to find Trudeau in contempt, the judge had to
do research in order to figure out why he was getting
Trudeau’s e-mails. He (or his staff) went on Trudeau’s web
site, had his court reporter transcribe the broadcast, and
entered the e-mails, web site posting, and broadcast
into the record. (Furthermore, at the moment he found
Trudeau in contempt, the judge did not know where
Trudeau had gotten his e-mail address, and implied that
it had been obtained improperly: “I don’t know how he
would have gotten my e-mail address. I’m curious, at
least, and concerned about how that happened. It is not
a matter of public record.” A week later, when sentencing
Trudeau, the judge determined that the e-mail address
had actually been revealed through a simple internet
search.) This level of fact-finding renders summary
disposition improper: the justification for summary
process is that because he witnessed the contemptuous
conduct, the judge knows all he needs to know in order
to punish the defendant. Even if the external facts
determined by the court are uncontested, we are loath to
endorse a system where the only way a defendant can
avoid summary process is by denying these facts. This
would create a real Fifth Amendment concern by
essentially forcing the defendant to admit or deny
incriminating behavior before determining the process
to which he is entitled.
The judge put Trudeau in something of a bind,
for instance, when he said, “Let me just make something
very clear. I mean, I want to make sure that it’s
10 No. 10-1383

clear. Mr. Trudeau concedes that he did, in fact, cause
these e-mails to be sent.” The context of the statement
makes clear that the judge was expecting Trudeau to
concede his guilt at this point (his lawyer diplomatically
refrained from doing so). But, under the summary
contempt procedure, there should be no need to put the
question to the defendant; the judge must have seen
or heard the contemptuous conduct. Here, relevant facts
had to be determined before Trudeau could be found
in contempt because the conduct occurred outside the
judge’s presence; it makes no difference if the judge
was absolutely convinced that he had uncovered
contemptuous conduct outside the courtroom through
his own investigation. Cooke, 267 U.S. at 538 (“In cases
like this, where the intention with which acts of contempt
have been committed must necessarily and properly
have an important bearing on the degree of guilt and the
penalty which should be imposed, the court cannot ex-
clude evidence in mitigation.”). Summary disposition
was an abuse of discretion.
Amicus presses the urgency of the situation the
district judge faced, which he says justified summary
punishment. We note that this argument assumes that
the contempt occurred in the judge’s presence, which we
reject. But underlying the argument is the idea that
increased urgency attenuates the necessity of actual
presence. This is worth addressing. See In re Troutt,
460 F.3d 887, 894 (7th Cir. 2006) (determining whether
contempt was in the presence of the court by examining
whether time was of the essence, a trial was being
No. 10-1383 11

disrupted by the conduct, and whether any immediate
function of the court was threatened by the conduct).
Amicus emphasizes that the judge was compelled to ask
the marshal to undertake a threat assessment. As we
mentioned, some of the e-mails could easily be construed
as raising concerns about a threat to the judge (another
example: “You have sold your souls for power and wealth,
and eternal spiritual destruction awaits those who
condemn the righteous. May God be merciful to you,
and may He bless Kevin Trudeau always.”). But urgency,
while required to invoke summary contempt power, is
not sufficient to justify its exercise. There must be a
nexus between the urgency of the situation and the need
for immediate punishment. This required connection is
why, for instance, refusing to testify before a grand jury is
not subject to summary contempt procedures, Harris,
382 U.S. at 164, but refusing to testify during a trial is,
Wilson, 421 U.S. at 318; see also In re Grand Jury Proceedings,
875 F.2d 927, 933 (1st Cir. 1989) (“The rationale for
curtailing the usual criminal procedures in the event
of in-court contempt is that a court must be able to
maintain order to assure the integrity of court proceedings.
The same degree of urgency is not inherent in punishment
of contempts committed outside the presence of the
court, since out-of-court contempts do not disrupt the
judge’s handling of ongoing proceedings over which he
is presiding.”). For example, in what we could view as the
typical direct contempt case—an obstreperous litigant at
trial who will not heed the court’s instructions and brings
the trial to a halt—the need for the litigant’s compliance
in order to continue the proceedings is urgent; by the
12 No. 10-1383

same token, there is an urgent need to punish the litigant
quickly so the proceedings may resume.
But in this case, the need to preserve the court’s security
and the need to punish Trudeau summarily were not
closely linked. A finding, by itself, that the court’s security
procedures were implicated does not amount to
a finding that there was a “compelling reason” to
immediately punish Trudeau. The urgency required
for summary disposition is not merely that the conduct
itself created an emergency but that the need to punish the
conduct was so urgent that procedural safeguards should
be disregarded. The need for the court to conduct its
duties is the fundamental rationale underlying the court’s
summary contempt powers. Wilson, 421 U.S. at 316 (noting
that when conduct “disrupts and frustrates an ongoing
proceeding . . . summary contempt must be available to
vindicate the authority of the court” and remedy the
situation.).
The record in this case is devoid of any suggestion
that Trudeau’s summary punishment was necessary to
restore the court’s ability to resume its duties. “No trial
was being disrupted by a failure to comply with a
court order.” Troutt, 460 F.3d at 894. And, while we
credit the judge’s determination that the e-mails
“imped[ed] [the court’s] means of communication and
caus[ed] the necessity of a threat assessment,” he
made no finding that immediate and summary punishment
for Trudeau was necessary to solve his communication
problems; in fact, Trudeau asked his followers to stop e-
mailing the judge before he even got to court. See Wilson,
No. 10-1383 13

421 U.S. at 319 (noting that summary punishment is
appropriate “to prevent a breakdown of the proceedings”);
see also United States v. Brown, 791 F.2d 577, 578 (7th Cir.
1986) (holding that summary punishment was appropriate
for “a serious interference with the process of justice”
defined as “obstreperous conduct” that brought the “trial
to a halt”). The judge found that Trudeau should not be
able to take advantage of the judge’s willingness to allow
him a chance to appear in court before finding him in
contempt in order to argue that summary contempt was
impossible. Cf. United States v. Griffin, 84 F.3d 820, 829 (7th
Cir. 1996) (noting that because a judge had the power to
use summary contempt procedures, the same judge could
adjudicate the case under notice-and-hearing procedures).
But because the conduct occurred outside the judge’s
presence and, rather than being forced to stop proceedings
by Trudeau’s behavior, the judge had to actually convene
proceedings in order to get Trudeau before the court,
summary contempt should never have been an option here.
This is not to say that there should be no consequence
for Trudeau’s actions, only that absent a compelling reason
for summary disposition, Trudeau is entitled to the
normal array of procedures under Rule 42(a). Wilson,
421 U.S. at 319 (“In an ongoing trial, with the judge, jurors,
counsel, and witnesses all waiting, [summary contempt]
provides an appropriate remedial tool . . . . Where time
is not of the essence, however, the [standard contempt
procedures] may be more appropriate to deal with
contemptuous conduct.”); Jaffree, 741 F.2d at 135
(Unless time is of the essence and there is some
14 No. 10-1383

“compelling reason for an immediate remedy. . . [a]ll
other contumacious conduct is indirect contempt.”). While
the e-mails surely impeded the court’s function, the
summary contempt finding was not tailored toward
resolution of the problem the e-mails caused. And, even
if this were a close case, the judge should have erred
“on the side of providing the procedural safeguards
assured by Rule 42(a).” Troutt, 460 F.3d at 894.
Because there was no compelling reason for the summary
disposition and the conduct did not occur in the court’s
presence, Trudeau’s contempt case did not warrant
summary disposition. Therefore, the “exclusive remedy”
for Trudeau’s conduct is found in Rule 42(a). S.E.C. v.
Simpson, 885 F.2d 390, 396 (7th Cir. 1989). Trudeau argues
that, as a matter of law, his conduct could not rise to the
level of criminal contempt because he was not “in [the
court’s] presence or so near thereto as to obstruct the
administration of justice” such that he did not violate
§ 401(1), see Nye v. United States, 313 U.S. 33 (1941). Nye, he
argues, poses a geographical limitation on, contemptuous
conduct, and he also argues that there is no evidence in the
record to support the notion that he either intended to or
actually did obstruct justice. The posture of the case,
however, makes it impossible to weigh his arguments; as
we discussed, the very nature of summary disposition is
that no separate fact-finding is required. This is also why
its use should be limited. Trudeau does not argue that our
consideration of the case is limited to the record relied on
by the district court or that further prosecution under
normal contempt procedures is somehow estopped by the
No. 10-1383 15

judge’s choice to pursue summary contempt. He is
probably correct to avoid those arguments. See Troutt, 460
F.3d at 895 (reversing summary contempt disposition and
remanding for “a new contempt proceeding that complies
with the requirements of Rule 42(a)”); United States v.
Hawkins, 76 F.3d 545, 552-53 (4th Cir. 1996) (“Having found
that the trial court committed reversible error, we are of the
opinion that, rather than simply reverse [the defendant’s]
contempt conviction, the conviction should be vacated
and the matter remanded for further proceedings . . . .”);
cf. Lockhart v. Nelson, 488 U.S. 33, 38 (1988) (affirming that
remanding for a new trial after reversal on a procedural
error is consistent with the Double Jeopardy Clause).
Unlike many cases where the entire record of the
proceedings below constitute the evidence of contempt, all
of the conduct here occurred off the record; what we know
is based on what the district judge asked to include in
the record. The posture of the case once again illustrates
why this case was ill-suited for summary disposition. If
the case is referred for prosecution, Trudeau will be able
to put into the record his full defense. At that point,
whether his conduct violated § 401 will be adjudicated by
a fact-finder.
Trudeau also argues that soliciting e-mails on his
own behalf was protected conduct under the First
Amendment, and that any alternative basis for the
imposition of criminal contempt (say, under § 401(3) for
violating a court order—in this case, the court’s decision
to keep discovery closed) is impermissible. But we
express no opinion on these arguments; we don’t know
16 No. 10-1383

whether prosecution of Trudeau for his e-mail-related
conduct will be resumed in the district court pursuant to
Rule 42(a) procedures. But if so, arguments about
whether his conduct was contemptuous or protected by the
First Amendment should be made in the first instance at
the district court and on a more complete record than we
have here.
Accordingly, we vacate Trudeau’s sentence and the
district court’s finding of contempt, and remand for further
proceedings according to 18 U.S.C. § 401, Fed. R. Crim. P.
42(a), and this opinion. If the district judge chooses to
continue with the criminal contempt proceedings and
refers Trudeau’s case to a prosecutor under Rule 42(a),
Circuit Rule 36 shall apply to the adjudication of the
criminal contempt charge only. See Cange v. Stotler & Co.,
913 F.2d 1204, 1208 (7th Cir. 1990). The underlying civil
contempt litigation is still pending in the district court and,
as far as we are concerned, is unaffected by this opinion.
See Johnson v. Cherry, 422 F.3d 540, 556 (7th Cir. 2005).
V ACATED and R EMANDED.

5-20-10