Trudeau Criminal Case Documents 82 Through 91 09 06 13 PDF

Case: 1:10-cr-00886 Document #: 82 Filed: 09/06/13 Page 1 of 25 PageID #:543
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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION UNITED STATES OF AMERICA v. KEVIN TRUDEAU ) ) No. 10 CR 886 ) ) Judge Ronald A. Guzmn )
GOVERNMENTS PROPOSED JURY INSTRUCTIONS The UNITED STATES OF AMERICA, through its attorney, GARY S. SHAPIRO, United States Attorney for the Northern District of Illinois, hereby submits following proposed jury instructions.
Respectfully submitted, GARY S. SHAPIRO United States Attorney By: /s/ Marc Krickbaum MARC KRICKBAUM APRIL PERRY Assistant United States Attorneys 219 South Dearborn Street Chicago, Illinois 60604 (312) 353-5300
September 6, 2013
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Members of the jury, I will now instruct you on the law that you must follow in deciding this case. Each of you has a copy of these instructions to use in the jury room. You must follow all of my instructions about the law, even if you disagree with them. This includes the instructions I gave you before the trial, any instructions I gave you during the trial, and the instructions I am giving you now. As jurors, you have two duties. Your first duty is to decide the facts from the evidence that you saw and heard here in court. This is your job, not my job or anyone elses job. Your second duty is to take the law as I give it to you, apply it to the facts, and decide if the government has proved the defendant guilty beyond a reasonable doubt. You must perform these duties fairly and impartially. Do not let sympathy, prejudice, fear, or public opinion influence you. In addition, do not let any persons race, color, religion, national ancestry, or gender influence you. You must not take anything I said or did during the trial as indicating what I think of the evidence or what I think your verdict should be.
GOVERNMENT INSTRUCTION NO. 1 7th Cir. Pattern Crim. Fed. Jury Instruction 1.01 (2012)
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The charge against the defendant is in a document called an order to show cause. You will have a copy of the order to show cause during your deliberations. The order to show cause charges the defendant with criminal contempt. The defendant has pled not guilty to the charge. The order to show cause is simply the formal way of telling the defendant what crime he is accused of committing. It is not evidence that the defendant is guilty. It does not even raise a suspicion of guilt.
GOVERNMENT INSTRUCTION NO. 2 7th Cir. Pattern Crim. Fed. Jury Instruction 1.02 (2012) (modified to reflect that charging instrument is an order to show cause)
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The defendant is presumed innocent of the charges. This presumption continues throughout the case, including during your deliberations. It is not overcome unless, from all the evidence in the case, you are convinced beyond a reasonable doubt that the defendant is guilty as charged. The government has the burden of proving the defendants guilt beyond a reasonable doubt. This burden of proof stays with the government throughout the case. The defendant is never required to prove his innocence. He is not required to produce any evidence at all.
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You must make your decision based only on the evidence that you saw and heard here in court. Do not consider anything you may have seen or heard outside of court, including anything from the newspaper, television, radio, the Internet, or any other source. You must also continue to follow the instructions I gave you at the start of trial that you may not communicate with anyone other than your fellow jurors until after you have returned your verdict. The evidence includes only what the witnesses said when they were testifying under oath, the exhibits that I allowed into evidence, and the stipulations that the lawyers agreed to. A stipulation is an agreement that certain facts are true or that a witness would have given certain testimony. Nothing else is evidence. The lawyers statements and arguments are not evidence. If what a lawyer said is different from the evidence as you remember it, the evidence is what counts. The lawyers questions and objections likewise are not evidence. A lawyer has a duty to object if the lawyer thinks a question is improper. If I sustained objections to questions the lawyers asked, you must not speculate on what the answers might have been. If, during the trial, I struck testimony or exhibits from the record, or told you to disregard something, you must not consider it.
GOVERNMENT INSTRUCTION NO. 4 7th Cir. Pattern Crim. Fed. Jury Instructions 2.01 (2012)
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Give the evidence whatever weight you believe it deserves. Use your common sense in weighing the evidence, and consider the evidence in light of your own everyday experience. People sometimes look at one fact and conclude from it that another fact exists. This is called an inference. You are allowed to make reasonable inferences, so long as they are based on the evidence.
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You may have heard the terms direct evidence and circumstantial evidence. Direct evidence is evidence that directly proves a fact. Circumstantial evidence is evidence that indirectly proves a fact. You are to consider both direct and circumstantial evidence. The law does not say that one is better than the other. It is up to you to decide how much weight to give to any evidence, whether direct or circumstantial.
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Do not make any decisions simply by counting the number of witnesses who testified about a certain point. You may find the testimony of one witness or a few witnesses more persuasive than the testimony of a larger number. You need not accept the testimony of the larger number of witnesses. What is important is how truthful and accurate the witnesses were and how much weight you think their testimony deserves.
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[A defendant has an absolute right not to testify [or present evidence]. You may not consider in any way the fact that a defendant did not testify [or present evidence]. You should not even discuss it in your deliberations.]
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Part of your job as jurors is to decide how believable each witness was, and how much weight to give each witnesss testimony [including that of the defendant]. Some factors you may consider include: the intelligence of the witness; the witnesss ability and opportunity to see, hear, or know the things the witness testified about; the witnesss memory; the witnesss demeanor; whether the witness had any bias, prejudice, or other reason to lie or slant his or her testimony; the believability of the witnesss testimony in light of the other evidence presented; and inconsistent statements or conduct by the witness.
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It is proper for an attorney to interview any witness in preparation for trial.
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Certain charts were admitted in evidence. You may use those charts as evidence.
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If you have taken notes during the trial, you may use them during deliberations to help you remember what happened during the trial. You should use your notes only as aids to your memory. The notes are not evidence. All of you should rely on your independent recollection of the evidence, and you should not be unduly influenced by the notes of other jurors. Notes are not entitled to any more weight than the memory or impressions of each juror.
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You should not speculate why any other person or company whose name you may have heard during the trial is not currently on trial before you.
GOVERNMENT INSTRUCTION NO. 13 United States v. Young, 20 F.3d 758, 765 (7th Cir. 1994); United States v. Iwese, 99 CR 80 (Zagel, J.) (unpublished opinion).
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The order to show cause charges the defendant with criminal contempt. In order for you to find the defendant guilty of this charge, the government must prove each of the following elements beyond a reasonable doubt: 1) 2) 3) The court entered a lawful and reasonably specific order; The defendant violated the order; and The defendants violation was willful.
If you find from your consideration of all the evidence that the government has proved each of these elements beyond a reasonable doubt, then you should find the defendant guilty. If, on the other hand, you find from you consideration of all the evidence that the government has failed to prove any one of these elements beyond a reasonable doubt, then you should find the defendant not guilty.
GOVERNMENT INSTRUCTION NO. 14 In re Betts, 927 F.2d 983, 986 (7th Cir. 1991), revd on other grounds, Betts v. United States, 10 F.3d 1278 (7th Cir. 1993), Cited in 7th Cir. Pattern Crim. Fed. Jury Instructions at 163 (2012); United States v. Hoover, 240 F.3d 593, 596 (7th Cir. 2001); Doe v. Maywood Housing Authority, 71 F.3d 1294, 1297 (7th Cir. 1995).
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A violation of a court order is willful if it is a volitional act done by one who knows or should reasonably be aware that his conduct is wrongful. A person should reasonably be aware that his conduct is wrongful if he knows about a substantial risk that his actions will lead to a violation of the court order, and he disregards that risk. In deciding whether the defendant acted willfully, you may consider all of the evidence, including what the defendant did or said.
GOVERNMENT INSTRUCTION NO. 15 United States v. Hoover, 240 F.3d 593, 597 (7th Cir. 2001) (We have defined willfulness as a volitional act done by one who knows or should reasonably be aware that his conduct is wrongful); United States v. Mottweiler, 82 F.3d 769, 771 (7th Cir. 1996) (Our formulation . . . knows or reasonably should be aware that [the] conduct is wrongful includes the should have known approach usually understood to make recklessness a sufficient mental state. . . . [C]riminal recklessness is present only if the actor is conscious of a substantial risk that the prohibited events will come to pass.); Doe v. Maywood Housing Authority, 71 F.3d 1294, 1297 (7th Cir. 1995 ) (Willfulness is defined as a volitional act done by one who knows or should reasonably be aware that his conduct is wrongful, and it may be inferred from the facts and circumstances in proof.); United States v. Greyhound Corp., 508 F.2d 529, 531-32 (7th Cir. 1974) (the minimum requisite intent (for criminal contempt) is . . . defined as a volitional act done by one who knows or should reasonably be aware that his conduct is wrongful and [w]illfulness for criminal contempt may, as in other areas of criminal law, be inferred from the facts and circumstances in proof.); 7th Cir. Pattern Crim. Fed. Jury Instruction 4.10 (2012) (stating, as part of definition of knowingly that In deciding whether the defendant acted knowingly, you may consider all of the evidence, including what the defendant did or said.).
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[If the defendant acted in good faith, then he lacked the willfulness required to prove the offense of contempt charged in the order to show cause. The defendant acted in good faith if, at the time, he honestly believed that his statements in the infomercials did not violate the court order. The defendant does not have to prove his good faith. Rather, the government must prove beyond a reasonable doubt that the defendant acted willfully, as charged in the order to show cause.]
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Any person who knowingly aids the commission of an offense may be found guilty of that offense if he knowingly participated in the criminal activity and tried to make it succeed.
GOVERNMENT INSTRUCTION NO. 17 7th Cir. Pattern Crim. Fed. Jury Instruction 5.06(a) (2012); In re Holland Furnace Co., 341 F.3d 548, 551 (7th Cir. 1965) (applying aiding and abetting liability to criminal contempt); accord United States v. Kirschenbaum, 156 F.3d 784, 794 (7th Cir. 1998); United States v. Bell, 414 F.3d 474, 484 (3d Cir. 2005); United States v. Terry, 17 F.3d 575, 580 (2d Cir. 1994); United States v. Laurins, 857 F.2d 529, 534-35) (9th Cir. 1988).
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The order to show cause charges that the crime happened on or about December 23, 2006, January 8, 2007, and July 6, 2007. The government must prove that the crime happened reasonably close to the dates. The government is not required to prove that the crime happened on those exact dates.
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In deciding your verdict, you should not consider the possible punishment for the defendant. If you decide that the government has proved the defendant guilty beyond a reasonable doubt, then it will be my job to decide on the appropriate punishment.
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Once you are all in the jury room, the first thing you should do is choose a foreperson. The foreperson should see to it that your discussions are carried on in an organized way and that everyone has a fair chance to be heard. You may discuss the case only when all jurors are present. Once you start deliberating, do not communicate about the case or your deliberations with anyone except other members of your jury. You may not communicate with others about the case or your deliberations by any means. This includes oral or written communication, as well as any electronic method of communication, such as by telephone, cell phone, smart phone, iPhone, Blackberry, computer, text messaging, instant messaging, the Internet, chat rooms, blogs, websites, or services like Facebook, MySpace, LinkedIn, YouTube, Twitter, or any other method of communication. If you need to communicate with me while you are deliberating, send a note through the court security officer. The note should be signed by the foreperson, or by one or more members of the jury. To have a complete record of this trial, it is important that you do not communicate with me except by a written note. I may have to talk to the lawyers about your message, so it may take me some time to get back to you. You may continue your deliberations while you wait for my answer. Please be advised that I cannot provide you with a transcript of any of the trial testimony.
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If you send me a message, do not include the breakdown of your votes. In other words, do not tell me that you are split 6-6, or 8-4, or whatever your vote happens to be.
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A verdict form has been prepared for you. You will take this form with you to the jury room. [Read the verdict form.] When you have reached unanimous agreement, your foreperson will fill in and date the verdict form, and each of you will sign it. Advise the court security officer once you have reached a verdict. When you come back to the courtroom, I will read the verdict aloud.
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The verdict must represent the considered judgment of each juror. Your verdict, whether it is guilty or not guilty, must be unanimous. You should make every reasonable effort to reach a verdict. In doing so, you should consult with each other, express your own views, and listen to your fellow jurors opinions. Discuss your differences with an open mind. Do not hesitate to reexamine your own view and change your opinion if you come to believe it is wrong. But you should not surrender your honest beliefs about the weight or effect of evidence just because of the opinions of your fellow jurors or just so that there can be a unanimous verdict. The twelve of you should give fair and equal consideration to all the evidence. You should deliberate with the goal of reaching an agreement that is consistent with the individual judgment of each juror. You are impartial judges of the facts. Your sole interest is to determine whether the government has proved its case beyond a reasonable doubt.
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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION UNITED STATES OF AMERICA v. KEVIN TRUDEAU ) ) ) No. 10 CR 886 ) Judge Ronald A. Guzmn ) )
VERDICT FORM With respect to the charges against defendant KEVIN TRUDEAU, we the jury find defendant KEVIN TRUDEAU:
GUILTY ________ So Say We All: ______________________ FOREPERSON ______________________ ______________________ ______________________ ______________________ ______________________
NOT GUILTY _________
______________________ ______________________ ______________________ ______________________ ______________________ ______________________ -25-
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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION UNITED STATES OF AMERICA vs. KEVIN TRUDEAU ) ) ) ) )
No.
10 CR 886
Judge Ronald A. Guzmn
GOVERNMENTS MOTION IN LIMINE TO PRECLUDE EVIDENCE OR ARGUMENT RELATING TO RETURN RATES, CUSTOMER SATISFACTION, AND OPINIONS REGARDING THE WEIGHT LOSS CURE The government respectfully moves this Court to preclude defendant from introducing evidence, making arguments, or otherwise mentioning: (1) return rates for the book The Weight Loss Cure They Dont Want You to Know About (hereinafter The Weight Loss Cure) and the fact that refunds were available; (2) customer satisfaction with the book The Weight Loss Cure, and the diet protocol described therein; (3) opinion testimony regarding whether the diet described in The Weight Loss Cure is effective; and (4) opinion testimony regarding whether the infomercials for The Weight Loss Cure misrepresented the contents of the book. In support of its motion, the government states as follows. FACTUAL BACKGROUND On September 2, 2004, defendant was ordered by the district court to, among other things, not misrepresent the contents of any books in infomercials. See 03 CV 3904, Doc. 56 at 8. Thereafter, defendant was accused of civil contempt for violating this order, based upon infomercials he starred in advertising his book The Weight Loss 1
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Cure. See 03 CV 3904, Doc. 62-67. After extensive discovery, the filing of numerous briefs and exhibits, as well as a civil trial on the merits, the district court concluded that defendant was in civil contempt. 03 CV 3904, Doc. 339. The Seventh Circuit affirmed this determination in FTC v. Trudeau, 579 F.3d 754 (7th Cir. 2009). Defendant is now charged with criminal contempt for willfully violating the terms of the district courts order by misrepresenting the contents of his book The Weight Loss Cure in infomercials.1 Throughout the civil contempt proceedings, defendant claimed that The Weight Loss Cure had low return rates compared to industry standards, that he was not aware of any customer complaints for The Weight Loss Cure, and that no customers had ever told him that they found his book misleading. See, e.g., 7/23/08 Tr. 71-72 (testifying that, the Weight Loss Cure book also had incredibly low return rates compared to industry standards; this book has gotten no, no negative reaction from the consumers at all); 7/23/08 Tr. 86 (testifying that, [w]hen I walk down the street, invariably people come up to me almost every day for autographs or photos or to give me their story of how one of my books has positively impacted their life [sic]. And I can honestly say here in court that I have never had a person come up to me of the, I dont know, hundreds or thousands over the years who said I hated your book. I think you ripped me off); see also Brief of Defendant-Appellant Kevin Trudeau, Case. No. 10-2418,
The government anticipates that the evidence at trial will show, among other things, that defendant misrepresented the contents of his book by claiming in the infomercials that his weight loss cure was not a diet when, according to the book, participants are limited to eating approximately 500 calories per day for at least 21 days.
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Document 17, at 4 (stating in his Seventh Circuit brief, without citation to authority or the record, Trudeau has one of the lowest return rates, and highest repeat purchase rates, in the business). Defendant also argued that there were no real victims, because anyone who wanted a refund could have received one. 10/19/07 Tr. 59 (stating, through counsel, [i]f theyre disappointed, they can send the book back, they get a refund. There is nothing more to it than that). ARGUMENT Defendants arguments during the civil contempt proceedings that return rates for The Weight Loss Cure were low, customers were satisfied with The Weight Loss Cure, and he does not know of anyone who was misled by his book, should be excluded from the criminal trial for two reasons. First, evidence and arguments regarding these topics are irrelevant to the issues on trial, are not helpful to the jury, and therefore should be excluded under Federal Rules of Evidence 401, 402, and 701. Second, these arguments would create a mini-trial with an abundance of rebuttal evidence, and as a result would be confusing to the jury and a waste of time and should be excluded under Federal Rule of Evidence 403. 1. Customer Satisfaction (or Dissatisfaction) with the Book is Irrelevant
The first problem with defendants arguments regarding return rates, customer satisfaction, and whether customers feel they were misled is that they are they are irrelevant, and therefore inadmissible under Federal Rules of Evidence 401 and 402. Defendant is charged with contempt for willfully violating a court order when he
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misrepresented the contents of The Weight Loss Cure in his infomercials. The elements of contempt are: (1) the court entered an order that was reasonably specific; (2) the order was violated; and (3) the violation was willful. See In re Betts, 927 F.2d 983, 986 (7th Cir. 1991). Defendants contempt his willful violation of the courts order that he accurately represent a books contents in infomercials was complete when he filmed the infomercials. Once filming was complete, defendant knew (or recklessly disregarded) that his infomercials misrepresented the contents of his book. What happened later, and how customers reacted to the book, is not relevant. Therefore, the number of refunds requested or received by customers (or the fact that refunds were available), and whether defendant succeeded in misleading customers, makes no fact that is of consequence to the determination of the case more or less likely within the meaning of Federal Rules of Evidence 401 and 402. Cf. United States v. Laguna, 693 F.3d 727, 730 (7th Cir. 2012) (affirming district courts exclusion of evidence offered by the defense that was irrelevant, confusing to the jury, and would invite the jury to acquit even if the government satisfied each element of the charged offense); United States v. Bryson, 94 Fed. Appx. 389, 398 (7th Cir. 2004) (affirming district courts exclusion on relevance grounds of post-indictment conduct offered by the defense to show lack of intent). 2. Opinion Testimony Should be Excluded
Similarly, opinion testimony regarding The Weight Loss Cure is irrelevant. The government does not intend to argue that the weight loss protocol set out in the book (which includes a diet of 500 calories a day) is ineffectual. Whether or not the diet 4
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described in the book is good or bad or helpful or unhelpful does not add to the jurys determination of whether defendant accurately described his book in the infomercials. For these reasons, evidence or arguments regarding whether the diet contained in the book is effective are irrelevant. In addition, opinion testimony from third parties that the infomercials did not misrepresent the content of the book, or similar opinion testimony that the infomercials were accurate or fair, is not helpful to the jury, and is inadmissible under Federal Rule of Evidence 701. To be admissible, a lay opinion should be helpful . . . to the determination of a fact in issue. Federal Rule of Evidence 701(b). One of the main issues the jury must decide at trial is whether defendants infomercials misrepresented the contents of his book. To make this determination, the government expects that the jury will have copies of the book and the infomercials, among other evidence. The opinions of third parties about whether the infomercials misrepresented the book will not help the jury decide whether the infomercials misrepresented the book, because such third parties will have no information or insight on that question that the jury will not also have. See United States v. Benson, 941 F.2d 598, 604 (7th Cir. 1991) (holding that opinion evidence was improperly admitted because it involved nothing more than drawing inferences from the evidence that [the witness] was no more qualified than the jury to draw.). As the Seventh Circuit has explained, a lay witnesss purpose is to inform the jury what is in the evidence, not to tell it what inferences to draw from that evidence. Once the evidence is presented, the jury is capable of examining it and determining whether it supports a conviction; it does not 5
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need lay testimony to assist in making that determination. United States v. Noel, 581 F.3d 490, 496 (7th Cir. 2009) (citation omitted). Here, the jury is capable of deciding whether the infomercials misrepresented the contents of the book, and the jury does not need a third partys opinion. 3. The Court Should Prohibit a Mini-Trial on Customer Satisfaction and the Books Merits
In addition to being inadmissible under Federal Rules of Evidence 401, 402, and 701, evidence or argument regarding return rates, customer satisfaction or dissatisfaction, and opinions about the accuracy of the infomercials, should be excluded under Federal Rule of Evidence 403, because there is a high danger of juror confusion and waste of time. Having a mini-trial about how good defendants book was, or how much people did or did not like it, or how people felt it compared to their expectations, would waste this Courts and the jurys time. For every witness defendant might be able to call to praise his book, the government could marshal numerous rebuttal witnesses. For example, at the time of the civil trial, out of 471 reviews of The Weight Loss Cure on Amazon.com, 287 reviews gave it the lowest possible rating. 7/23/08 Tr. at 79. Moreover, the Better Business Bureau received more than 200 complaints about The Weight Loss Cure. 7/23/08 Tr. at 80. Additionally, by the time of the civil trial defendant had received more than 600 pages of consumer complaints demonstrating not only that consumers found The Weight Loss Cure infomercials to be misleading when compared with the book, but also that many customers who attempted to receive refunds could not do so because of various issues with the company that sold the book. 6
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See FTC Trial Ex. 41. Finally, despite defendants continuous assertions regarding his low return rates, defendant denied in an interrogatory having information within his possession, custody or control regarding the total value of refunds made to purchasers of the Weight Loss Cure Book via Direct Response Sales, the Internet or mail order, because Defendants are not involved in selling the Weight Loss Cure Book via those avenues. See FTC Trial Ex. 44 at 4. Ultimately, none of this evidence should be presented to the jury, either by defendant or the government. It simply does not matter. Because evidence or argument on these issues would not aid the trier of fact, but would instead create a confusion of the issues and waste of time, exclusion under Federal Rule of Evidence 403 is appropriate. CONCLUSION For the foregoing reasons, the government moves to exclude evidence of or argument regarding: (1) return rates of The Weight Loss Cure and the fact that refunds were available; (2) customer satisfaction or dissatisfaction with the book The Weight Loss Cure and the diet protocol described therein; (3) opinion testimony regarding whether the diet described in The Weight Loss Cure is effective; and (4) opinion testimony regarding whether the infomercials misrepresented the contents of the book.
Respectfully submitted, GARY S. SHAPIRO United States Attorney 7
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By: /s/ April M. Perry APRIL M. PERRY Assistant United States Attorney 219 South Dearborn Street Chicago, Illinois 60604 april.perry@usdoj.gov
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No.
10 CR 886
GOVERNMENTS MOTION IN LIMINE REGARDING THE FIRST AMENDMENT AND MIRROR IMAGE DOCTRINE The government anticipates that the defendant may attempt to raise the First Amendment and/or the mirror image doctrine in his defense. However, as is discussed below, because the First Amendment provides no defense to contempt, all references to, and arguments regarding, the First Amendment should be excluded. Moreover, although limited testimony about the mirror image doctrine might be relevant to defendants state of mind at the time of the offense, the doctrine does not provide a legal defense to contempt. Therefore, in the event that the defendant refers to the mirror image doctrine at trial, the government requests that the jury be instructed that there is no mirror image doctrine defense to the crime of contempt. In support of its motion, the government states as follows. FACTUAL BACKGROUND On September 2, 2004, defendant was ordered by the district court to, among other things, not misrepresent the contents of any books in infomercials. See 03 CV 3904, Doc. 56 at Part I. This order was stipulated and agreed by the defendant, as part of defendants settlement of a previous contempt claim. See 03 CV 3904, Doc. 56. The 1
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order included the following regarding First Amendment rights: with the exception of any waiver in connection with Parts I-X herein, nothing in this order shall constitute a waiver of the Defendants right to engage in speech protected by the First Amendment to the Constitution of the United States. See 03 CV 3904, Doc. 56 at 14. Thereafter, defendant was accused of civil contempt for violating this order, based upon infomercials he appeared in to advertise his book The Weight Loss Cure They Dont Want You to Know About. See 03 CV 3904, Doc. 62-67. After extensive discovery, the filing of numerous briefs and exhibits, as well as a civil trial on the merits, the district court concluded that defendant had committed civil contempt. 03 CV 3904, Doc. 339. The Seventh Circuit affirmed this determination in FTC v. Trudeau, 579 F.3d 754 (7th Cir. 2009). Defendant is now charged with criminal contempt for willfully violating the terms of the district courts order by misrepresenting the contents of his book The Weight Loss Cure in infomercials. Throughout the civil contempt proceedings, defendant claimed that the First Amendment protected his actions with respect to The Weight Loss Cure infomercials. See 7/25/08 Tr. 35-61. Among other things, defendant argued that although he waived some of his First Amendment rights in the consent decree, he didnt waive his First Amendment rights as it pertains to what right does he have to describe the content of a book. 7/25/08 Tr. at 31. The defense acknowledged, however, that advertising that fails to accurately reflect the content of the protected speech being promoted, (in this case the book) would not be protected speech. 7/25/08 Tr. 43; see also United States v.
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Benson, 561 F.3d 718, 725 (7th Cir. 2009) (false or misleading commercial speech is not protected under the First Amendment). The defense went on to argue that [h]e did promise a book on one topic and deliver it on another, and thats the price of the First Amendment. Thats how the First Amendment has been applied historically. Mr. Trudeau never bartered away that part of his First Amendment rights. 7/25/08 Tr. 61. Similarly, defendant argued that the mirror image doctrine protected his speech in the infomercials. In support of this argument, defendant called an expert witness to describe the mirror image doctrine. 7/22/08 Tr. 9-70. This witness testified that the mirror image doctrine is the FTCs enforcement policy with respect to advertisements for books. 7/22/08 Tr. 13. It was designed by the FTC so that the FTCs enforcement actions would not infringe upon First Amendment rights, and so authors and advertisers of books would have clarity on how to avoid enforcement actions by the FTC. 7/22/08 Tr. 13-14. The witness further testified that the courts order instructing the defendant not to misrepresent the contents of his books in infomercials should be read to mean compliance with the mirror image doctrine, 7/22/08 Tr. 29, and that this portion of the order actually incorporated the mirror image doctrine. 7/22/08 Tr. 32. The witness further testified that in his opinion, the infomercials for The Weight Loss Cure fell within the safe harbor protection of the mirror image doctrine. 7/22/08 Tr. 33. The witness opined that the mirror image doctrine protected the infomercials for two reasons: (1) because they were expressions of opinion by an author; and (2) because to the extent that any facts were expressed, they were just facts from the book. 7/22/08 Tr. 34. 3
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Defendant testified in the civil trial that he also believed that his infomercials were protected by the mirror image doctrine. Specifically, defendant testified that his complete understanding of the order . . . was based on, of course, [his] knowledge of the mirror image doctrine. 7/23/08 Tr. 12. Defendant further testified that he became familiar with the mirror image doctrine in the early 1990s when attorneys explained in great detail what the rules and regulations are at the FTC relating to informational publications and, thus, the mirror image doctrine. 7/23/08 Tr. 23. Defendant named several attorneys who advised him at that time, and also discussed how his view was informed by conferences and meetings among those involved with infomercials. 7/23/08 Tr. 24. Defendant testified that, based upon his understanding of the mirror image doctrine, he believed the rules he had to comply with were as follows: [he] could say anything in the infomercial that was [his] opinion. [He] could say anything in the infomercial as long as it was in the book. And [he] didnt have to put everything in the book in the infomercial. 7/23/08 Tr. 13. ARGUMENT I. There is No First Amendment Defense to Contempt. It is well-settled law that the First Amendment does not provide a defense to contempt. See Madsen v. Womens Health Center, 512 U.S. 753, 793 (1994) (stating First Amendment rights are no defense in subsequent contempt proceedings); Walker v. City of Birmingham, 388 U.S. 307 (1967); Howat v. State of Kansas, 258 U.S. 181, 190 (1922). In Walker, civil rights demonstrators were prohibited from engaging in sitins and mass parades by an injunction that had been issued ex parte. 388 U.S. at 3084
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310. Notwithstanding the injunction, the demonstrators held marches and other public gatherings. Id. at 311. Thereafter, city officials applied for an order to show cause why the demonstrators should not be held in contempt for violating the injunction. Id. At the hearing that ensued, the civil rights demonstrators sought to attack the constitutionality of the injunction on the ground that it was vague and overbroad, and restrained free speech. Id. The state court ruled that because the demonstrators neither moved to dissolve the injunction, nor attempted to comply with it, they were guilty of contempt. Id. at 311-12. In affirming this decision, the Supreme Court held that in the fair administration of justice no man can be judge in his own case, however exalted his station, however righteous his motives. Id. at 320. Recognizing that the injunction the civil rights protesters were faced with would unquestionably raise substantial constitutional issues concerning some of its provisions, the Court still held that to the extent that an individual believes his rights are violated by a speechrestricting court order, that individual must apply to the court to modify or dissolve the order rather than violate it and then claim First Amendment protection. Id. at 316-17. In so holding, the Court concluded that respect for judicial process is a small price to pay for the civilizing hand of law, which alone can give abiding meaning to constitutional freedom. Id. at 321; see also United States v. Seale, 461 F.2d 345, 361 (7th Cir. 1972) (stating it is well settled that the invalidity of a court order is not generally a defense in a criminal contempt proceeding alleging its disobedience). If the civil rights demonstrators in Walker did not have a First Amendment
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defense to contempt for having violated an involuntary ex parte injunction that raised substantial constitutional issues, then defendant in this case certainly has no First Amendment defense to contempt for having violated an order to which he voluntarily agreed, and in which he affirmatively waived certain First Amendment rights.1 Defendant, who was ably represented by attorneys throughout civil proceedings, never raised any First Amendment concerns with the court, never sought the courts interpretation of the misrepresentation clause in the order, and never asked the Court to modify or remove the misrepresentation clause. The time for arguing that defendants infomercials constituted protected speech under the First Amendment, or that the order unconstitutionally encroached upon defendants First Amendment rights, has passed. The sole issue for the jury to decide is whether the defendant willfully violated a court order not whether that order was valid or invalid. Because the First Amendment is not a defense to the violation of a lawful court order, this court should preclude evidence of, or argument regarding, defendants First Amendment rights. II. There is No Mirror Image Doctrine Defense to Contempt. Just as there is no First Amendment defense to the crime of contempt, there is also no defense to the crime of contempt based on the mirror image doctrine.
Part I of the order states, among other things, the infomercial for any such book . . . must not misrepresent the content of the book. Part XI of the order acknowledges that a waiver of First Amendment rights is present in Part I, stating, with the exception of any waiver in connection with Parts I-X herein, nothing in this order shall constitute a waiver of the Defendants right to engage in speech protected by the First Amendment . . . See 03 CV 3904, Doc. 56.
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According to the defendants own witness, the mirror image doctrine is a policy used by the FTC to guide its enforcement actions. And it is well-established that the policies of federal agencies do not create substantive due process rights or provide defenses in criminal cases. See, e.g., United States v. Craveiro, 907 F.2d 260, 264 (1st Cir. 1990) (the internal guidelines of a federal agency, that are not mandated by statute or the constitution, do not confer substantive rights on any party); United States v. Ng, 699 F.2d 63, 71 (2d Cir. 1983) (refusing to dismiss an indictment even though it may have been brought contrary to Department of Justice policy because [t]hat policy is merely an internal guideline for exercise of prosecutorial discretion, not subject to judicial review); Cf. Crandon v. United States, 494 U.S. 152, 177 (1990) (Scalia, J., concurring) (because criminal statutes are not administered by any agency, but by the courts, the interpretation of those charged with prosecuting criminal statutes is not entitled to deference). Whether or not the FTCs internal policy would have supported an enforcement action against the defendant simply has no bearing on whether or not the defendant committed criminal contempt by violating a court order. For that reason, should any mention of the mirror image doctrine be made at trial (as is discussed further below), the government requests that the jury be instructed that the doctrine does not provide a legal defense to the charged contempt. III. Testimony About the Mirror Image Doctrine Should be Excluded, Unless Probative of Defendants State of Mind at the Time of the Offense. Although the mirror image doctrine itself provides no defense, defendant may choose to testify that the doctrine affected his interpretation or understanding of the 7
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terms of the court order at issue in this case.2 Provided that a sufficient foundation is laid linking such testimony to defendants state of mind at the time of the charged offense, such testimony could be relevant to the issue of willfulness. Because the mirror image doctrine would have no relevance if not probative of defendants state of mind at the time of the charged offense, any and all testimony concerning the doctrine that is not specifically linked to defendants state of mind should be excluded as irrelevant.3
Of course, as is discussed in more detail in the governments motion in limine with respect to good faith defenses, defendants testimony regarding defendants interpretation of the order and legal concepts like the mirror image doctrine may subject defendant to cross-examination on the issue of whether he sought his own attorneys advice regarding his interpretation. For example, the testimony of defendants expert witness regarding the history of the mirror image doctrine, his interpretation of the doctrine, and his opinion that defendants infomercial was protected by the mirror image doctrine are all irrelevant, given that the expert never had a conversation with the defendant on this (or any other) topic.
3
Similarly, the intent of defendants lawyers and/or the FTCs lawyers when negotiating the consent decree are not relevant unless that intent was shared with the defendant. 8
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CONCLUSION For the foregoing reasons, the government moves to exclude any references to, or arguments regarding, the First Amendment. Moreover, any and all evidence or argument regarding the mirror image doctrine should be excluded as irrelevant, unless a sufficient foundation is laid establishing the relevance of the doctrine to defendants state of mind at the time of the charged offense. If evidence concerning the mirror image doctrine is admitted, the government requests that the jury be instructed the doctrine provides no legal defense to the crime of contempt.
Respectfully submitted, GARY S. SHAPIRO United States Attorney By: /s/ April M. Perry APRIL M. PERRY Assistant United States Attorney 219 South Dearborn Street Chicago, Illinois 60604 april.perry@usdoj.gov
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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION UNITED STATES OF AMERICA vs. KEVIN TRUDEAU ) ) ) ) ) No. 10 CR 886
GOVERNMENTS MOTION IN LIMINE TO BAR EVIDENCE OR ARGUMENT THAT THE FTC FAILED TO INFORM DEFENDANT THAT HE WAS IN CONTEMPT OF COURT The government respectfully asks this court to bar evidence or argument that the FTC failed to inform defendant that his infomercials violated the court order before the FTC filed a motion asking that defendant be held in contempt of court. FACTUAL BACKGROUND As explained in the governments previous motions, in 2004, the district court ordered defendant to not participate in infomercials that misrepresented the contents of any books. In 2007, the court held defendant in civil contempt for violating the court order by making infomercials that misrepresented the contents of his book The Weight Loss Cure. Defendant is now charged with criminal contempt for the same conduct. In the civil contempt case that preceded this criminal trial, defendants counsel argued that the FTC found out about defendants infomercials for The Weight Loss Cure in January 2007, but failed to inform the defendant that the infomercials violated the court order until the FTC filed a motion asking the court to hold defendant in contempt in September 2007. 7/25/08 Tr. 60-62. Counsel argued that the FTCs delay in filing the contempt motion showed that the FTC had difficulty deciding whether the
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infomercials violated the court order. 7/25/08 Tr. 61. In addition, defendant testified, I think if the FTC was really trying to protect consumers, they would have called us when the show first went on the air when they knew about it. 1/29/08 Deposition Tr. 132. DISCUSSION Evidence that the FTC knew about defendants infomercials for a period of time and failed to inform him that he was violating the court order is irrelevant, and the court should exclude it. A government agency investigating possible contempt of court is under no obligation to provide a running account to the charged party of violations developed during the course of the investigation. United States v. Greyhound Corp., 508 F.2d 529, 534 (7th Cir. 1974). Indeed, it was defendants responsibility to ensure that he complied with the court order. The very issuance of the order puts the party on notice that his past acts have been wrongful. No concept of basic fairness is violated by requiring a person in this position to be more than normally careful in his future conduct. Id. at 532-33. If defendant had doubts about the meaning of the court order, or whether The Weight Loss Cure infomercials complied with it, he should not have made the infomercials, allowed them to air, and then waited for the FTC to tell him whether they violated the order. Defendant could have asked the district court to clarify the order, and while he was not required to do so, his failure to seek clarification, coupled with his acting based upon a twisted or implausible interpretation of the order will be strong evidence of a willful violation of the decree. Id. at 532. 2
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Defendant was not entitled to have the FTC immediately inform him whenever he violated the court order. The FTCs failure to do so is not relevant to any issue at trial. The fact that it took the FTC several months to file a motion for contempt is of no significance to this case. The court should exclude all evidence and argument on this issue. CONCLUSION For the foregoing reasons, the government asks the court to bar evidence or argument that the FTC failed to inform defendant that his infomercials violated the court order before the FTC filed a motion asking that defendant be held in contempt of court.
Respectfully submitted, GARY S. SHAPIRO United States Attorney By: /s/ Marc Krickbaum MARC KRICKBAUM Assistant United States Attorney 219 South Dearborn Street Chicago, Illinois 60604 (312) 469-6052 marc.krickbaum2@usdoj.gov
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GOVERNMENTS MOTION IN LIMINE TO BAR EVIDENCE OR ARGUMENT RELATING TO FAILURE TO CHARGE ITV WITH CRIMINAL CONTEMPT, AND POTENTIAL PENALTIES The government respectfully asks this court to (1) bar evidence or argument that the government failed to charge the company ITV, or any other party, with criminal contempt, and (2) bar evidence or argument about potential penalties if defendant is convicted. FACTUAL BACKGROUND As explained in the governments previous motions, in 2004, the district court ordered defendant to not participate in infomercials that misrepresented the contents of any books. In 2007, the court held defendant in civil contempt for violating the court order by making infomercials that misrepresented the contents of his book The Weight Loss Cure. Defendant is now charged with criminal contempt for the same conduct. In 2006, defendant sold the rights to promote his books and other publications in infomericals to a company called ITV in exchange for $121 million. In the civil contempt case that preceded this criminal trial, defendant suggested that ITV, not defendant, was responsible for The Weight Loss Cure infomercials, because ITV decided whether and when to air the infomercials. For example, defendant testified that ITV
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makes the decision [to air the infomercials] on their ownI cant tell them what to doto broadcast the show. 1/29/08 Deposition Tr. 48. He also claimed that ITVs legal counsel is in charge. They make the decisions. I have no control over what they do. 1/29/08 Deposition Tr. 59. DISCUSSION I. Failure to Charge ITV If defendant wants to claim at trial that ITV, not defendant, is guilty of criminal contempt for The Weight Loss Cure infomercials, defendant is free to make that argument.1 But the court should prevent defendant from testifying or arguing about the governments failure to charge ITV with contempt. Whether or not the government charged someone else with a crime in addition to defendant is not relevant to whether defendant committed the crime, and the jury should not consider it. United States v. Young, 20 F.3d 758, 765 (7th Cir. 1994). II. Potential Penalties It is well established that when a jury has no sentencing function, it should be admonished to reach its verdict without regard to what sentence might be imposed. Shannon v. United States, 512 U.S. 573, 579 (1994) (quoting United States v. Rogers, 422 U.S. 35, 40 (1975)). For this reason the Seventh Circuit has unequivocally held that arguing punishment to a jury is taboo. United States v. Richardson, 130 F.3d
Though even then defendant may still be guilty for aiding and abetting ITV. See In re Holland Furnace Co., 341 F.3d 548, 551 (7th Cir. 1965) (applying aiding and abetting liability to criminal contempt).
1
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765, 778 (7th Cir. 1997) (overturned on other grounds by Richardson v. United States, 526 U.S. 813 (1999)). Accordingly, the court should bar evidence and argument about any of the range of penalties defendant may face if convicted. CONCLUSION For the foregoing reasons, the government asks the court to (1) bar evidence or argument that the government failed to charge the company ITV, or any other party, with criminal contempt, and (2) bar evidence or argument about potential penalties if defendant is convicted.
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No.
10 CR 886
GOVERNMENTS MOTION IN LIMINE REGARDING PRIOR GOOD ACTS The government respectfully moves this Court to preclude defendant from introducing evidence, making arguments, or otherwise mentioning prior good acts, including his compliance with portions of the district courts order in this case that did not involve his representations regarding books in infomercials. In support of its motion, the government states as follows. FACTUAL BACKGROUND On September 2, 2004, defendant was ordered by the district court to, among other things, not misrepresent the contents of any books in infomercials. See 03 CV 3904, Doc. 56 at 8. Defendant is now charged with criminal contempt for willfully violating the terms of the district courts order by misrepresenting the contents of his book The Weight Loss Cure in infomercials. Defendant is not charged with violating any of the other parts of the district courts order which included prohibitions on making representations about or endorsements of various products, misrepresenting tests or studies, and strict rules for labeling of advertisements and infomercials. See 03 CV 3904, Doc. 56 at 9-14. 1
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ARGUMENT The government respectfully moves the Court to exclude all evidence of defendants lawfulness and/or good conduct including any evidence regarding compliance with terms of the order not at issue in this case. For example, during the civil trial, defendants attorney argued, Mr. Trudeau got out of the product business altogether. And to this day he has never put forward an advertisement for a product has never been involved in the sale of a product. He has respected completely the thrust of that order. 7/22/08 Tr. 81. The defendant himself testified, Im not selling any more products. Everything Ive done since that order was signed was to be 100% in compliance, and that he sold all of the companies he was previously involved in. 7/22/08 Tr. 110. As another example, in his Seventh Circuit brief, defendants attorneys stated, [s]ince 2004, Trudeau has complied with the 2004 Consent Order by not appearing in any infomercials for non-literary products, Trudeau has regularly communicated with the FTC regarding his contemplated business ventures, and [e]ven when he has disagreed with the FTCs reading of the order, Trudeau has invariably endeavored to address these concerns to the FTCs satisfaction. Case No. 10-2418, Doc. 17 at 5. While the government recognizes that defendants dealings with the FTC with respect to the interpretation of and compliance with the misrepresentation clause of the order may be relevant to demonstrate defendants willfulness or lack of willfulness in this case, defendants compliance with other portions of the order, and course of dealing with the FTC with respect to other portions of the order, are not relevant. In 2
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this regard, the law is clear: A defendant may not seek to establish his innocence . . . through proof of the absence of criminal acts on [other] specific occasions. United States v. Scarpa, 897 F.2d 63, 70 (2d Cir. 1990) (excluding taped proof that defendants met regularly and did not discuss criminal activity). Evidence of other lawful behavior is irrelevant because acts of honesty do not prove an absence of dishonest acts. See, e.g., United States v. Hill, 40 F.3d 164, 168 (7th Cir. 1994) (upholding exclusion of evidence that defendant failed to steal three letters from the mail in a postal embezzlement case); United States v. Grimm, 568 F.2d 1136, 1138 (5th Cir. 1978) (upholding exclusion of evidence that used car dealer paid for some cars instead of stealing them). To hold otherwise would be to eviscerate the carefully drafted limitations of Rule 405, which forbids proof of good character through evidence of specific acts where character is not an element of the charge or defense. Like Rule 403, Rule 405 is intended to prevent the series of wasteful mini-trials which would inevitably ensue if the defendant were allowed to pursue this irrelevant line of inquiry. The Advisory Committee Notes for Rule 405 conclude that proof of character by means of specific acts possesses the greatest capacity to arouse prejudice, to confuse, to surprise, and to consume time. See 1972 Advisory Committee Notes to Rule 405; see also Grimm, 568 F.2d at 1138 (evidence of lawful transactions could have complicated the case and confused the jury). To the extent the defendant intends to offer evidence regarding his prior acts of
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lawfulness or good character, he should be permitted to do so only in accordance with the limitations of Federal Rule of Evidence 405(a).1 Other than testimony from character witnesses fitting within the narrow confines of Rule 405(a), no such evidence is admissible. CONCLUSION For the foregoing reasons, the government moves to exclude evidence of defendants prior good acts, including his compliance with portions of the district courts order that did not involve representing the content of books in infomercials.
Respectfully submitted, GARY S. SHAPIRO United States Attorney By: /s/ April M. Perry APRIL M. PERRY Assistant United States Attorney 219 South Dearborn Street Chicago, Illinois 60604 april.perry@usdoj.gov
Even evidence offered under Rule 405(a), of course, cannot include specific instances of good conduct: it is limited to a description of the subject's reputation or to a brief statement of opinion, without support from specific instances of conduct. See 1972 Advisory Committee Notes to Rule 405 (The rule contemplate[s] that testimony of specific instances is not generally permissible on the direct examination of an ordinary opinion witness to character . . . . Opinion testimony on direct in these situations ought in general to correspond to reputation testimony as now given i.e. be confined to the nature and extent of observation and acquaintance upon which the opinion is based"). 4
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No.
10 CR 886
JOINT MOTION FOR USE OF A JURY QUESTIONNAIRE The parties request that the jury venire appear prior to trial to fill out a jury questionnaire to aid in jury selection in this case. In support of the motion, the parties state as follows: 1. Defendant Kevin Trudeau has been a media presence since the early
1990s. According to his website, he has appeared on over 2,000 radio shows, been featured in more than 300 newspapers and magazines, and his books have sold more than 30 million copies. 2. The book at issue in this case, The Weight Loss Cure They Dont Want
You to Know About, has sold more than one million copies. 3. Defendants civil contempt proceedings and the fact of criminal contempt
proceedings have been the subject of pretrial publicity. For example, ABC has aired episodes of The Lookout featuring defendant twice in the last four months on August 14, 2013, and on May 29, 2013.1 Both the Chicago Tribune and Chicago Sun
See http://abcnews.go.com/blogs/business/2013/05/kevin-trudeau-chasing-the-dream-seller/ (last visited September 5, 2013).
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Times have also written articles about the defendant in the last two months.2 4. Because many of the potential venire members will likely know of, and
have feelings about, the defendant or may even have purchased the book that will be the subject of this trial it would be prudent to make certain inquiries of the venire members in writing prior to trial. This would allow the parties to make cause challenges to those venire members who have an obvious bias, and facilitate a more efficient jury selection process. 5. If the Court grants this motion, the parties propose filing an agreed draft
of the jury questionnaire prior to the pretrial conference on October 15, 2013. The parties further propose having the venire members appear to fill out their questionnaires on October 28, 2013, with cause challenges to be made based upon questionnaire responses prior to the trial date of November 4, 2013. Respectfully submitted, GARY S. SHAPIRO United States Attorney By: /s/ April M. Perry APRIL M. PERRY Assistant United States Attorney 219 South Dearborn Street Chicago, Illinois 60604 april.perry@usdoj.gov
See, e.g., http://articles.chicagotribune.com/2013-07-27/news/ct-met-trudeau-contempt-court-2013072 7_1_kevin-trudeau-kimball-anderson-gettleman (last visited September 5, 2013); http://articles.chicagotribune.com/2013-07-12/news/ct-met-kevin-trudeau-contempt-court-2 0130712_1_kevin-trudeau-pitchman-trudeau-gettleman (last visited September 5, 2013); http://www.suntimes.com/news/metro/21628000-418/judge-to-tv-pitchman-kevin-trudeau-p ay-up-or-go-back-to-jail.html (last visited September 5, 2013)
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UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION UNITED STATES OF AMERICA, Plaintiff, v. KEVIN TRUDEAU, Defendant. ____________________________________ ) ) ) ) ) ) )
Case No. 10-CR-00886 Honorable Ronald A. Guzman
DEFENDANT KEVIN TRUDEAUS CONSOLIDATED MOTION IN LIMINE Pursuant to Federal Rules of Evidence 401, 402, 403, and 404(b), Defendant Kevin Trudeau respectfully requests that this Court bar the government from presenting argument and/or evidence regarding any negative or disparaging statements made by Trudeau regarding the United States government or any federal agency (including, but not limited to, the Federal Trade Commission (FTC)). Evidence of Trudeaus personal opinions or feelings toward the United States government and/or federal agencies is irrelevant, unduly prejudicial and improper character evidence. Second, pursuant to Federal Rules of Evidence 401, 402, 403, 801 and 802, Trudeau respectfully requests that this Court bar the government from presenting argument and/or evidence regarding the civil contempt case before Judge Gettleman (Case No. 03-cv-3904), including any findings of fact or conclusions of law in that case, and any argument or evidence of the positions taken by the FTC in that litigation. Such evidence is irrelevant to this case and has the potential to unfairly prejudice Trudeau and should therefore be excluded. Third, pursuant to Federal Rules of Evidence 401, 402, and 403, Trudeau respectfully requests that this Court bar the government from presenting evidence or argument regarding Trudeaus financial circumstances, corporate holdings, and sources of income. Such evidence is 1
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irrelevant to this case and has the potential to unfairly prejudice Trudeau, and it therefore should be excluded. Fourth, pursuant to Federal Rules of Evidence 401, 402, 403, 801 and 802, Trudeau respectfully requests that this Court bar the government from presenting argument and evidence regarding a 2004 civil contempt case regarding the promotion of Coral Calcium Supreme (Case No. 03-cv-3904), including any findings of fact or conclusions of law in that case, as well as any argument or evidence of the positions taken by the FTC in that litigation. Such evidence is irrelevant to this case and has the potential to unfairly prejudice Trudeau, and it therefore should be excluded. Finally, pursuant to Federal Rules of Evidence 401, 402, 403, and 609(b) Trudeau respectfully requests that this Court bar the government from presenting argument and evidence regarding a 1990 guilty plea for larceny and a 1991 guilty plea for credit card fraud. Such evidence is irrelevant to this case and the negligible probative value of this evidence does not substantially outweigh its prejudice to Trudeau, and it therefore should be excluded. I. BACKGROUND A. Trudeaus Public Statements
Trudeau is a best-selling author, motivational speaker, radio host and a consumer advocate. He has earned a living for over a decade by, among other things, writing and
marketing books that discuss Natural Cures They Dont Want You To Know About and The Weight Loss Cure They Dont Want You To Know About (the Weight Loss Cure book). The They Trudeau often refers to includes a number of authoritative figures, including the United States government, various federal agencies, as well as large corporations. Trudeau also hosts a radio show, in which Trudeau provides his listeners with advice for how to lead healthy
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and productive lives. A key theme to Trudeaus messages to his listeners is that the government is out to silence him from speaking the truth about various subject matters. To that end, Trudeau has made various negative and inflammatory statements about the United States government and various federal agencies in his books, during his radio show, and through other means. A few example statements are provided below: I want to talk about whats going on in America and my particular court case, because they are really one in the same. We see in America something that I have been talking about for the last 3 to 5 years. And that is, the United States government is becoming more obtrusive into our daily lives than ever before. But more importantly, our freedoms, our individual liberties are being taken away. What has been guaranteed to us under the United States Constitution is being trampled on and thrown out the window. Ladies and gentleman I want to talk about something thats very serious . . . and that is the United States Constitution, the Bill of Rights, is being thrown out the window. We are becoming more and more of a police state where the U.S. government continues to say they can do anything they want. (The Kevin Trudeau Show (June 6, 2013) at 00:31/52:02, www.ktradionetwork.com.) [T]he government uses the ABC Agencies (the FDA, the FTC, the IRS) to harass and intimidate U.S. citizens who are doing something the government doesnt like, and Im one. (Id. at 24:40/52:02, www.ktradionetwork.com.) I look this government right in the eye and say, you want to put me in jail? Lets go to court, baby. (NBC Chicago News, http://www.nbcchicago.com/investigations/Prosecutors-Want-Kevin-Trudeau-toPay-Up-209283781.html#ixzz2dfFP7DBR.) For years, oppressive government forces have waged a relentless pursuit against Kevin Trudeau to censor and control his freedom of speech. . . . Kevin Trudeau needs you to stand with him. Stand up for your constitutional liberties, and help him fend off the criminals in power trying to silence and even jail advocates of free speech for talking about the benefits of natural prevention, treatment, diet and cures. (Homepage, www.standwithkt.com (click The Cause).) The Civil Contempt Case
B.
In 2003, Trudeau began marketing a product called Coral Calcium Supreme. According to the FTC, Trudeau stated that Coral Calcium Supreme, a product derived from marine coal, was an effective treatment for cancer and other diseases. On June 9, 2003, the FTC 3
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filed suit against Trudeau for violation of the FTC Act. (Docket No. 1 (Case No. 03-cv-3904).) On July 1, 2003, Judge Gettleman entered a preliminary injunction barring Trudeau from making the challenged claims concerning Coral Calcium. (Docket No. 26 (Case No. 03 cv 03904).) On June 29, 2004, Judge Gettleman found Trudeau in contempt of the July 1, 2003 preliminary injunction and ordered Trudeau to cease all promotion of Coral Calcium. (Docket No. 55 (Case No. 03 cv 03904).) In September 2004, Trudeau settled the lawsuit with the FTC without admitting any liability or fault by entering into a Stipulated Order. The Stipulated Order provided that Trudeau would appear in infomercials only for books and other publications and that the infomercials would not misrepresent the content of the publication being promoted. Three years later, in September 2007, the FTC filed a motion seeking to hold Trudeau in civil contempt of the 2004 Stipulated Order. Trudeau was accused of violating the Stipulated Order by misrepresenting the content of a book he had authored, the Weight Loss Cure book, in television infomercials. After an evidentiary hearing in July 2008, Judge Gettleman entered a judgment of $37.6 million against Trudeau and banned Trudeau from appearing in infomercials for three years, as putative remedies for civil contempt. (Order, Docket No. 220 (Case No. 03cv-3904).) On July 13, 2012, the FTC filed a motion to hold Trudeau in contempt for failure to pay the $37.6 million judgment against him. (Motion, Docket No. 481 (Case No. 03-cv-3904).) In that motion, the FTC requested that Judge Gettleman incarcerate Trudeau until he paid the judgment in full. After a two-part evidentiary hearing in May and June of 2013, Judge
Gettleman found Trudeau in contempt and appointed a receiver to conduct an accounting of
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Trudeaus assets and to coordinate payment of the judgment. (Order, Docket No. 729 (Case No. 03-cv-3904).) During and after the hearings with respect to Trudeaus assets and holdings, the FTC has been seeking information from various sources regarding, among other things, the structure of Trudeaus corporate holdings, his sources of income, his level of control of various corporate entities with which he is affiliated, and his ability to pay a substantial judgment. C. Trudeaus Criminal History
In 1990, Trudeau pled guilty to larceny for allegedly depositing $80,000 in valueless checks. See USA v. Trudeau, 90-cr-10157-EFH-1 (D. Mass. 1990). In 1991, Trudeau pled guilty to credit card fraud. See USA v. Trudeau, 90-cr-10230-EFH-1 (D. Mass. 1991). II. ARGUMENT A. Trudeaus Anti-Government Statements Should Be Excluded At Trial. 1. Trudeaus Statements Are Irrelevant To The Issues In This Trial.
This Court has broad discretion to exclude evidence that is not relevant to the issues in the case. See, e.g., U.S. v. Harris, 542 F.2d 1283, 1317 (7th Cir. 1976); Fed. R. Evid. 402. Here, Trudeaus public rhetoric regarding the government has no relevance to the claims and issues in this case: whether Trudeau willfully violated the 2004 Stipulated Order. Trudeau earns his living in part by espousing unique, thought-provoking opinions and capturing the attention and the imaginations of his listeners. However, Trudeaus public statements about the
government and/or this case designed to attract and captivate listeners are irrelevant to whether Trudeau willfully violated the 2004 Stipulated Order.
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2. Any Limited Probative Value Of Evidence Regarding Trudeau Statements Regarding The Government Is Outweighed By Its Prejudicial Impact.
Even if testimony regarding Trudeaus statements regarding the government have some limited probative value, any probative value is outweighed by the danger of unfair prejudice and misleading the jury. See Fed. R. Evid. 403; U.S. v. Brown, 7 F.3d 648, 654 (7th Cir. 1993).
This criminal case will take place in a federal courthouse with the United States Attorneys Office being routinely referred to as the government. Allowing Trudeaus negative public opinions against the inchoate and undefined term government would invite the improper inference that Trudeaus statements were directed at the court system, the prosecutors or the judge in this case. This inference is inaccurate and misleading and will prejudice Trudeau in the eyes of the jury. In addition, feelings regarding the United States government, including an individuals political beliefs, are by their nature particularly sensitive and inflammatory. Trudeaus statements should be excluded entirely to prevent severe prejudice to Trudeau. 3. Use Of Trudeaus Statements Regarding The Government Constitutes Improper Character Evidence Barred By FRE 404(b).
Finally, evidence of Trudeaus negative public statements about corporations or government are unduly prejudicial because the government may use it improperly to imply that Trudeau is a bad person, that he makes reckless statements, and/or that he engages in other bad conduct. See Fed. R. Evid. 404(b). The rule barring such evidence exists because, as is the case here, this evidence tends to distract the trier of fact from the main question of what actually happened on a particular occasion. Jones v. S. Pac. R.R., 962 F.2d 447, 449 (5th Cir. 1992). Accordingly, any discussion of Trudeaus statements regarding the United States government or any federal agencies should be excluded.
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B. Evidence And Argument From The Civil Contempt Case Should Be Excluded At Trial. 1. Evidence And Argument From The Civil Case Should Be Excluded As Irrelevant And/Or Prejudicial.
Trudeaus criminal contempt trial should proceed as if Trudeau entered into the 2004 Stipulated Order, and then the U.S. Attorneys Office filed a motion to show cause why Trudeau should not be held in criminal contempt of that Order, with no consideration of the civil contempt proceedings before Judge Gettleman. The government should not be permitted to argue that any of the findings of fact or conclusions of law from the civil case should apply in this case. First, the burdens of proof between the previous civil case and the instant criminal case are different. As this Court is aware, the burden of proof to find Trudeau in civil contempt was clear and convincing evidence. FTC v. Trudeau, 579 F.3d 754, 763 (7th Cir. 2009). In contrast, here the government would need to show that Trudeau is in criminal contempt beyond a reasonable doubt. U.S. v. Hoover, 240 F.3d 593, 597 (7th Cir. 2001). Second, in order to establish that Trudeau engaged in criminal versus civil contempt, the government must show that Trudeau willfully violated the 2004 consent order. See id. at 596. Civil contempt does not require willfulness. Trudeau, 579 F.3d at 763. Because of the higher hurdles that exist for a finding of criminal contempt, it would be misleading, confusing, and prejudicial for the government to attempt, in any fashion, to bootstrap findings that occurred in the context of the civil case as evidence in this case. Any mention of the fact that Trudeau has been found in civil contempt has the potential to mislead and to invade the province of the jury as well as to severely prejudice Trudeau, as a jury is likely to give undue weight to the findings of fact and conclusions of law of a court in the same jurisdiction and indeed in the same building as the Court hearing the criminal case. Greycas, Inc. v. Proud, 826
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F.2d 1560, 1567 (7th Cir. 1987) (A practical reason for denying [prior court judgments] evidentiary effect is ... the difficulty of weighing a judgment, considered as evidence, against whatever contrary evidence a party to the current suit might want to present. The difficulty must be especially great for a jury, which is apt to give exaggerated weight to a judgment.). An instructive case on this issue is Nipper v. Snipes, in which the Fourth Circuit found that an order from an earlier civil case should be excluded under Rule 403 because judicial findings of fact present a rare case where, by virtue of their having been made by a judge, they would likely be given undue weight by the jury, thus creating a serious danger of unfair prejudice. 7 F.3d 415, 418 (4th Cir. 1993); cf. Estate of Moreland v. Dieter, 395 F.3d 747, 755 (7th Cir. 2005) (Evidence of acquittal in a criminal action is generally irrelevant and inadmissible in a civil case involving the same incident since it constitutes a negative sort of conclusion lodged in a finding of failure of the prosecution to sustain the burden of proof beyond a reasonable doubt.) (internal quotations omitted). While the Nipper v. Snipes case involved two civil cases, as opposed to an earlier civil case and a later criminal case, the Fourth Circuits rationale is even more applicable here where the burden of proof between civil and criminal cases varies significantly. 2. Facts And Conclusions From The Civil Case Should Be Excluded As Hearsay.
In addition, this Court should exclude any evidence and argument regarding the civil case as hearsay under Federal Rules of Evidence 801 and 802. [C]ivil judgments are said not to be usable in subsequent proceedings as evidence of the facts underlying the judgment; for as to those facts, the judgment is hearsay. Greycas v, 826 F.2d at 1567; see also 4 Weinstein's Evidence 803(22)[01], at 803-353 (1985) (Technically, the record of a prior judgment does fall within the usual definition of hearsay insofar as it is used to demonstrate the findings of fact 8
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supporting it, for it is evidence of assertions made outside the trial, offered to show the truth of the matters alleged, and deriving its probative value partially from the credibility and capacity of the absent asserter.). In addition, there is no recognized exception to the hearsay rule into which evidence of the civil proceedings would fall. Were such evidence to be adduced at trial, it would be an attempt to buttress the governments assertions in this case with factual findings made by another judge in a related but distinct proceeding. This is precisely the type of result that the hearsay rules were designed to prevent. Consistent with the above authority, any argument or evidence from the civil case between Trudeau and the FTC, including any judgments, findings of fact or conclusions of law, as well as any statements or positions taken by the FTC, would be hearsay. As such, it should be excluded in its entirety. C. Evidence And Argument Regarding Trudeaus Financial Situation Should Be Excluded At Trial As Irrelevant And/Or Prejudicial.
Trudeaus financial position, the corporate entities with which he is involved, and affiliated entities in which he may or may not have some measure of control are issues that are irrelevant to the issue to be decided at trial whether Trudeaus statements in infomercials to promote the sale of the Weight Loss Cure book were a willful violation of the September 2004 Stipulated Order. Furthermore, Trudeaus financial position is far from certain. Trudeau filed a sworn financial statement on January 25, 2013 that indicated that Trudeau has negligible assets and that Trudeaus liabilities exceed his assets (i.e. he has a negative net worth). (Docket No. 540 (Case No. 03-cv-3904).) And Trudeau disputes that he controls many of the entities that the FTC ascribes to him. The government cannot establish that Trudeau exercises control over many of these entities, and therefore any evidence regarding these entities would be unreliable and irrelevant. 9
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Even if evidence of Trudeaus finances and corporate holdings were to have some limited relevance to the issues presented in the criminal case (it does not), the danger of undue prejudice to Trudeau substantially outweighs any probative value. There exists a serious risk that jurors would take the view that complex corporate holdings and substantial assets were an indication of some sort of undefined nefarious conduct on Trudeaus part. The inference would be both misleading and destructive to Trudeaus ability to obtain a fair trial in this case. D. Evidence And Argument Concerning Trudeaus Promotion of Coral Calcium And the 2004 Contempt Finding Should be Excluded as Irrelevant And/Or Prejudicial.
Trudeaus promotion of Coral Calcium and the 2004 contempt finding regarding Coral Calcium have absolutely no bearing on the issues in this case which involve only the production and broadcasting of the Weight Loss Cure infomercial and the alleged violation of this Courts 2004 order. Consequently, any evidence and argument about Trudeaus promotion of Coral Calcium is irrelevant and inadmissible. See Fed. R. Evid. 401 & 402. Such evidence is also unduly prejudicial under Rule 403 because the probative value of Trudeaus promotion of another product, not at issue in this case, is substantially outweighed by the prejudicial effect of presenting this evidence to the jury. See Greycas, 826 F.2d at 1567 (A practical reason for denying [prior court judgments] evidentiary effect is ... the difficulty of weighing a judgment, considered as evidence, against whatever contrary evidence a party to the current suit might want to present. The difficulty must be especially great for a jury, which is apt to give exaggerated weight to a judgment.). Moreover, as noted above, findings of fact and legal conclusions from a civil case are inadmissible in a criminal case because the burdens of proof in the two cases are completely
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different. See supra at II.B. Such facts and conclusions from a civil case are also inadmissible hearsay under Federal Rules of Evidences 801 and 802. See id. E. Evidence And Argument Regarding Trudeaus Prior Guilty Pleas Should Be Excluded At Trial As Irrelevant And/Or Prejudicial.
Trudeaus guilty pleas which occurred more than 20 years ago have absolutely no probative value towards any of the events at issue in this case, namely, the production and broadcasting of the Weight Loss Cure infomercial and the alleged violation of this Courts 2004 order. Such evidence is therefore irrelevant and inadmissible. See Fed. R. Evid. 401 & 402. Such evidence is also unduly prejudicial under Rule 403. See Fed. R. Evid. 403. Moreover, because these guilty pleas are more than ten years old, under Federal Rule of Evidence 609(b), such evidence is admissible only if: (1) its probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect; and (2) the proponent gives an adverse party reasonable written notice of the intent to use it so that the party has a fair opportunity to contest its use. Fed. R. Evid. 609(b) (emphasis added). The government cannot establish by specific facts and circumstances that this evidence has any probative value to the facts of this case. Moreover,
even if this evidence had any negligible probative value, the probative value does not substantially outweigh the obvious prejudicial effect evidence of prior convictions would have on the jury. See 28 Charles Alan Wright & Victor J. Gold, Federal Practice & Proc.: Evidence 6136, at 290 (2012) (The language of Rule 609(b) thus weighs probative value against prejudice in a way that is dramatically skewed in favor of excluding the conviction evidence; the evidence
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is inadmissible unless probative value substantially outweighs' prejudice.). Therefore this evidence is inadmissible under Rule 609(b). III. CONCLUSION WHEREFORE, Trudeau seeks the following relief from this Court: 1. Trudeau respectfully requests that the Court enter an order precluding argument
and evidence regarding any negative or disparaging comments made by Trudeau regarding the United States government or any federal agency; 2. Trudeau respectfully requests that the Court enter an order precluding argument
and evidence regarding the civil contempt case before Judge Gettleman (Case No. 03-cv-3904), including any findings of fact or conclusions of law made by Judge Gettleman and/or any positions taken by the FTC; 3. Trudeau respectfully requests that the Court enter an order precluding argument
and evidence regarding his financial circumstances, corporate holdings, and sources of income; 4. Trudeau respectfully requests that the Court enter an order precluding argument
and evidence regarding the promotion of Coral Calcium and the 2004 civil contempt ruling (Case No. 03-cv-3904), including any findings of fact or conclusions of law made by Judge Gettleman and/or any positions taken by the FTC; and 5. Trudeau respectfully requests that the Court enter an order precluding argument
and evidence regarding Trudeaus prior guilty pleas.
Dated: September 6, 2013
Respectfully submitted, KEVIN TRUDEAU By: /s/ Thomas L. Kirsch II One of His Attorneys
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Kimball R. Anderson (kanderson@winston.com) Thomas L. Kirsch II (tkirsch@winston.com) Katherine E. Rohlf (krohlf@winston.com) WINSTON & STRAWN LLP 35 West Wacker Drive Chicago, Illinois 60601 312-558-5600
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CERTIFICATE OF SERVICE I, Thomas L. Kirsch II, an attorney, hereby certify that on September 6, 2013, I caused to be served true copies DEFENDANT KEVIN TRUDEAUS CONSOLIDATED MOTION IN LIMINE, and accompanying exhibits by filing such document through the Courts Electronic Case Filing System, which will send notification of such filing to: Marc Krickbaum April Perry United States Attorneys Office 219 South Dearborn Street Suite 500 Chicago, Illinois 60604
/s/ Thomas L. Kirsch II Thomas L. Kirsch II Attorney for Kevin Trudeau
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GOVERNMENTS MOTION IN LIMINE WITH RESPECT TO EVIDENCE OF ADVICE OF COUNSEL The government respectfully asks this court to (1) rule that if defendant offers any evidence at trial relating to the review, approval, opinions, or advice of lawyers, including ITVs lawyers, he will waive the attorney-client privilege with respect to all his communications with lawyers on the same subject matter, (2) require defendant to provide notice of his intent to present such evidence within thirty days of trial, and (3) require that if defendant provides such notice, within thirty days of trial he must disclose to the government all his communications with all lawyers on the same subject matter. BACKGROUND As explained in the governments previous motions, in 2004, the district court ordered defendant to not participate in infomercials that misrepresented the contents of any books. In 2007, the court held defendant in civil contempt for violating the court order by making infomercials that misrepresented the contents of his book The Weight Loss Cure. Defendant is now charged with criminal contempt for the same conduct.
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A. Defendants Previous Claims of Reliance on Advice of Counsel
During the civil contempt case, the FTC deposed defendant. Throughout his sworn deposition testimony, defendant claimed that he believed the infomercials did not violate the court order because after he filmed the infomercials but before they aired, defendants lawyers reviewed the infomercials and the book and informed defendant that the infomercials complied with the court order.1 Defendant also testified that lawyers from the company that aired the infomercials, ITV, also reviewed the infomercials and the book and reached the same conclusion. (In 2006, defendant sold ITV the rights to promote his books and other publications in infomericals, in exchange for $121 million.) For example, defendant testified as follows: So I shoot the show [infomercial], and I take the show and take the book, which is what Im selling now, and it goes to my legal counsel for review to make sure that the show is accurately describing the contents of the book, and everything is in compliance with the FTC order. ITV is also instructed to review through their legal counsels the show [infomercial] and the book . . . to see if their lawyers believe that everything is in compliance, and if not, to make any edits, disclaimers, or do whatever to bring it into compliance with my consent decree. . . . So once the lawyers give us the greet light and say, Yes, youre in compliance. Youre legal. Youre good to go, we take their advice. 1/29/08 Deposition Tr. 47-48. The infomercials go through massive amounts of legal scrutiny by ten different lawyers to make sure that [theyre] in compliance. . . . ITV makes the final decision, and they do everything necessary to bring the show into compliance before it airs. So when they air the show, they are one hundred percent confident, based on all the brilliant legal minds that have charged all the money, that the show is one hundred percent compliant with whatever it needs to be compliant with. 1/29/08 Deposition Tr. 62-63.
At the time, defendant was represented by attorneys at Jenner and Block, not his current counsel.
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In response to the question, If you needed guidance about this [court] order and how to comply with it, who would you have turned to? Trudeau testified, My attorney and then identified two of his personal lawyers. 1/29/08 Deposition Tr. 105. Being in compliance with this order is paramount to me and always has been, which is why I pay ridiculous amount of money to my attorneys. . . . [I] run [the infomercials by the attorneys and go, Am I in compliance. Youre the lawyer. Tell me. If I am, Ill run the show. If Im not, well change the show. . . . [The infomercial] goes through all these legal brains that review it all . . . then advise whether theyre compliant or not, make any revisions modifications, disclaimers or whatever and . . . everybody is happy that were completely in compliance. 1/29/08 Deposition Tr. 110. In response to the question, whose responsibility do you think it is to comply with this FTC order, Trudeau replied, The attorneys. Theyre the ones who went to law school. Theyre the ones who wrote the document. . . . I am completely unqualified to read these documents and understand them. I can only rely on my legal counsel and say, Tell me if this is okay to do. And if they say, Yes, good. If they so, No, what do we have to do to correct it? I dont know what else to do except rely on counsel. 1/29/08 Deposition Tr. 129-30. Defendants Expected Defenses At Trial
B.
Despite defendants repeated assertions in sworn testimony that complying with the court order was so important to him he sent all infomercials to his lawyers for review and approval, and that his lawyers advised him the infomercials were one hundred percent compliant with the court order, 1/29/08 Deposition Tr. 62-63, 110, 129-30, defendants counsel has informed the government that defendant does not intend to present any evidence at trial about communications between defendant and his own lawyers. But, according to defense counsel, defendant does intend to claim that he relied on ITVs lawyers, who reviewed the infomercials and book and approved
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them. DISCUSSION I. If Defendant Presents Any Evidence About the Review, Approval, Opinions, or Advice of Counsel, including ITVs Counsel, He Will Waive Attorney-Client Privilege With Respect to His Own Communications on the Same Subject With All Lawyers. If defendant claims at trial that he relied on a lawyers opinion that the infomercial complied with the court order, and that this reliance shows that he did not willfully violated the court order, he will be presenting an advice-of-counsel defense. It makes no difference that defendant intends to present evidence of the advice of ITVs lawyers instead of his own lawyers. In United States v. Joshua, 648 F.3d 547 (7th Cir. 2011), the defendants, who were charged with mail fraud, presented evidence that they relied on opinions from lawyers who worked for the local government office that employed the defendants, but the defendants offered no evidence about advice from their own lawyers. Id. at 548, 550. As a result of this defense, the district court gave a jury instruction on advice of counsel, and the defendants opposed that instruction. Id. at 554-55. On appeal, the defendants claimed that they had not presented a formal advice-of-counsel defense, but that they merely offered evidence of the lawyers opinions in order to negate the mental state required for the crime. Id. at 554. The Seventh Circuit held that this is exactly what the advice-of-counsel defense does, and therefore concluded that the defendants had presented such a defense. Id. The Court explained that advice of counsel is not a stand-alone defense; rather, information about advice of counsel sheds light on the question whether the defendants had the
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required intent to defraud.Id. The same is true hereevidence about the review, approval, opinions, or advice of any lawyers, including ITVs lawyers, is simply an advice-of-counsel defense.2 It is well-settled that if a defendant presents an advice-of-counsel defense, he waives attorney-client privilege. See, e.g., United States v. Defazio, 899 F.2d 626, 631 (7th Cir. 1990); In re Grand Jury Proceedings, 219 F.3d 175, 182-83 (2d Cir. 2000). This waiver extends to all privileged communications on the same subject matter. In re Echostar Commcns Corp., 448 F.3d 1294, 1299-1300 (Fed. Cir. 2006); Glenmede Trust Co., 56 F.3d 476, 486-87 (3d Cir. 1995); United States v. Jones, 696 F.2d 1069, 1072 (4th Cir.1982); In re Sealed Case, 676 F.2d 793, 818 (D.C.Cir.1982) (When a party reveals part of a privileged communication in order to gain an advantage in litigation, it waives the privilege as to all other communications relating to the same subject matter. . . .); see also Appleton Papers Inc. v. EPA, 702 F.3d 1018, 1024 (7th Cir. 2012) (Generally, a party that voluntarily discloses part of a conversation covered by the attorney-client privilege waives the privilege as to the portion disclosed and to all other
For this reason, if defendant offers any such evidence, the government will seek a jury instruction informing the jury of the requirements for the advice-ofcounsel defense. Specifically, evidence relating to a lawyers review or advice negates willfulness only if (1) before taking action, (2) [defendant] in good faith sought the advice of an attorney whom he considered competent, (3) for the purpose of securing advice on the lawfulness of his possible future conduct, (4) and made a full and accurate report to [the] attorney of all material facts which the defendant knew, (5) and acted strictly in accordance with the advice of [the] attorney who had been given a full report. United States v. Van Allen, 524 F.3d 814, 823 (7th Cir. 2008); accord Joshua, 648 F.3d at 554-55.
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communications relating to the same subject matter.) (collecting cases).3 An advice-of-counsel defense waives attorney-client privilege with respect to communications between defendant and all attorneys, not just the attorneys defendant claims he relied on. If the waiver were narrower, defendant could simply choose to reveal only favorable legal advice and conceal the rest, which is inconsistent with any claim that he acted in good faith. If parties were allowed to manipulate the privilege in this way, [a] party claiming good faith legal advice could produce three opinions of counsel approving conduct at issue in a law suit and withhold a dozen more expressing grave reservations over its legality. Preservation of privilege in such a case is simply not worth the damage done to the truth. Abbott Laboratories v. Baxter Travenol Laboratories, Inc., 676 F. Supp. 831, 832 (N.D. Ill. 1987) (Zagel, J.); accord Blackhawk Molding Co., Inc. v. Portola Packing, Inc., 2004 WL 2211616, *1 (N.D. Ill. 2004). If defendant presents evidence of the review, approval, opinions, or advice of ITVs lawyers in order to prove that he honestly believed the infomercials complied with the court order, the jury is entitled to know whether defendant bothered to consult with his own lawyers on this subject, and, if so, what they told him. The government is entitled to ask defendant about his previous sworn testimony that when he needed guidance about how to comply with the court order, he turned to his own attorneys, and that his attorneys were primarily responsible for making sure that the
Some of these opinions arose in the civil context, but there is no case authority for the proposition that the [attorney-client] privilege applies differently in criminal and civil cases. Swidler & Berlin v. United States, 524 U.S. 399, 408-09 (1998).
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infomercials were in compliance. 1/29/08 Deposition Tr. 105, 129-30. If defendant deliberately failed to ask his lawyers for their opinions about the infomercials, or if he asked their opinions and they told him the infomercials did or might violate the court order, this will rebut defendants claim that he honestly believed, based on ITVs counsel, that the infomercials complied with the court order. If a person is told by his attorney that a contemplated course of action is legal but subsequently discovers the advice is wrong or discovers reason to doubt the advice, he cannot hide behind counsels advice to escape the consequences of his violation. Benson, 941 F.2d at 614. This applies with even greater force if defendant was told by ITVs attorneys that the infomercials complied with the court order, but then defendants own attorneys cast doubt on that advice. Such evidence would support the conclusion that when defendant decided to go ahead with the infomercials without consulting his lawyers, or despite his lawyers concerns, he acted recklessly, which is the standard required to prove that he willfully violated the court order. See United
States v. Mottweiler, 82 F.3d 769, 771 (7th Cir. 1996).

Indeed, if defendant presents evidence that he received or was aware of legal advice from ITV, one factor the jury may consider in deciding whether defendant acted willfully is whether this advice was reasonable. United States v. Urfer, 287 F.3d 663, 664-65 (7th Cir. 2002). There are almost a million lawyers in the United States. Not all of them are competent; not all are honest. If unreasonable advice of counsel could automatically excuse criminal behavior, criminals would have a straight and sure path to immunity. Id. at 665. And in determining whether the advice of ITVs lawyers was 7
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reasonable, one relevant question is what advice defendant received from other lawyers, including his own. If defendant relies on the opinions of ITVs lawyers, the jury is entitled to this evidence. Therefore, if defendant offers any evidence about a lawyers review, approval, opinions, or advice relating to whether the infomercials complied with the court order, he will waive attorney-client privilege on the same subject with respect to his communications with all other attorneys, including his attorneys. II. The Court Should Require Defendant to Provide Notice of His Intent to Present Any Evidence Relating to Advice of Counsel, Including ITVs Counsel. If defendant presents evidence relating to advice of counsel as described above, and thereby waives attorney-client privilege with respect to all communications with counsel on the same subject, the government will need to investigate the advice any lawyers gave him, including reviewing documents containing written advice or records of oral advice, as well as attempting to interview the lawyers themselves. The parties may disagree about whether certain advice is relevant or part of the same subject matter as the evidence that defendant intends to present, and the court may need to review certain documents in camera in order to resolve these disputes. The parties may also seek certain jury instructions relating to evidence about advice of counsel. All of this will take time, and if these steps occur in the middle of a jury trial, it will cause undue disruption and potentially lengthy delay. It is in the parties interests and the courts interest to resolve these issues before trial. Therefore, the court should exercise its discretion over the management of the trial and require the defendant, no later 8
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than thirty days before trial, to give notice to the government about his intent to present any evidence at trial relating to the review, approval, opinions, or advice of counsel. The court should further require that if defendant gives such notice, defendant should disclose to the government no more than thirty days before trial all communications between defendant and any lawyer relating to whether The Weight Loss Cure infomercials complied with the court order. CONCLUSION The government respectfully asks this court to (1) rule that if defendant offers any evidence at trial relating to the review, approval, opinions, or advice of lawyers, including ITVs lawyers, he will waive the attorney-client privilege with respect to all his communications with lawyers on the same subject matter, (2) require defendant to provide notice of his intent to present such evidence within thirty days of trial, and (3) require that if defendant provides such notice, within thirty days of trial he must disclose to the government all his communications with all lawyers on the same subject matter. Respectfully submitted, GARY S. SHAPIRO United States Attorney By: /s/ Marc Krickbaum MARC KRICKBAUM Assistant United States Attorney 219 South Dearborn Street Chicago, Illinois 60604 (312) 469-6052 marc.krickbaum2@usdoj.gov
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GOVERNMENTS MOTION IN LIMINE TO BAR EVIDENCE ABSENT A SUFFICIENT EVIDENTIARY FOUNDATION The government respectfully requests that the court exclude the evidence described below unless defendant establishes the necessary evidentiary foundation. FACTUAL BACKGROUND As explained in the governments previous motions, in 2004, the district court ordered defendant to not participate in infomercials that misrepresented the contents of any books. In 2007, the court held defendant in civil contempt for violating the court order by making infomercials that misrepresented the contents of his book The Weight Loss Cure. Defendant is now charged with criminal contempt for the same conduct. In the civil contempt case that preceded this criminal trial, defendant claimed that for several reasons, he honestly believed the infomercials complied with the court order. For example, defendant testified that he relied on a previous infomercial he had made advertising another book. Before defendant wrote The Weight Loss Cure, he wrote a book called Natural Cures They Dont Want You to Know About, and, as with The Weight Loss Cure, defendant advertised Natural Cures through infomercials. Before the Natural Cures infomercials aired, defendant, through his counsel, submitted
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the infomercials to the FTC for review, and defendants lawyers exchanged extensive written correspondence with the FTC about the Natural Cures infomercials, as well as many other subjects. In this correspondence, the FTC objected to various parts of the Natural Cures infomercials, but it did not assert that the infomercials violated the court order by misrepresenting the content of the Natural Cures book. In the civil case, defendant repeatedly claimed that, based on his review of the correspondence between his lawyers and the FTC, he used the Natural Cures infomercials as a template for making The Weight Loss Cure infomercials, and that he believed if he followed the model of Natural Cures, The Weight Loss Cure infomercials would comply with the court order.1 Defendant also claimed he believed the infomercials complied with the court order because of an internal FTC policy called the mirror image doctrine, which is described in more detail in another government motion, Dkt. 84. Finally, as described in the governments motion relating to evidence about advice of counsel, Dkt. 90, defendant claimed that he relied on lawyers for a company called ITV, who defendant claimed reviewed the infomercials and determined they complied with the court order.
Unlike the Natural Cures infomercials, neither defendant nor his counsel submitted The Weight Loss Cure infomercials to the FTC for an advance opinion about whether the infomercials violated the court order.
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DISCUSSION I. The Evidence Described Above is Admissible At Trial Only if Defendant Lays a Sufficient Evidentiary Foundation. The evidence described above is relevant only if defendant knew about it, relied on it, and it caused him to honestly believe that the infomercials accurately represented the book, and therefore complied with the court order. See United States v. Benson, 941 F.2d 598, 614 (7th Cir. 1991) (to negate willfulness [a fact] must create (or perpetuate) an honest misunderstanding of ones legal duties.) (amended on other grounds); 7th Cir. Pattern Crim. Fed. Jury Instruction 6.10 (2012) (explaining that good faith defense requires defendant to honestly believe[] that his conduct was lawful). For example, the court should not permit defendant to introduce correspondence between defendants lawyers and the FTC about the Natural Cures infomercials or other matters, unless defendant offers evidence that knew about and relied on the correspondence. The same is true of the mirror image doctrine and any review, approval, opinions, or advice of ITVs counsel. Without an evidentiary foundation that defendant knew of, relied on, and formed honest beliefs based upon this information, such evidence is irrelevant. Unless defendant proffers how he will establish such an evidentiary foundation, the court should exclude this evidence. See, e.g., United States v. Scott, 660 F.2d 1145, 1165-67 (7th Cir. 1981) (affirming district courts exercise of discretion to preclude evidence of statements made to a defendant, offered to show the defendants mental state, because there was an insufficient foundation that the
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statements, which reflected the speakers state of mind, actually had an effect on defendant's state of mind). CONCLUSION The government respectfully requests that the court exclude the evidence described above unless defendant establishes the necessary evidentiary foundation.

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NOT GUILTY _________

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Respectfully submitted, GARY S. SHAPIRO United States Attorney 7

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Judge Ronald A. Guzmn

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Judge Ronald A. Guzmn

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Judge Ronald A. Guzmn

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Judge Ronald A. Guzmn

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Judge Ronald A. Guzmn

See http://abcnews.go.com/blogs/business/2013/05/kevin-trudeau-chasing-the-dream-seller/ (last visited September 5, 2013).

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