United States v. Kevin Trudeau
2016 U.S. App. LEXIS 2037
| 7th Cir. | 2016Background
- Kevin Trudeau settled an FTC suit in 2004 agreeing not to misrepresent book content in infomercials; he later published The Weight Loss Cure and promoted it in three infomercials that omitted material restrictions and requirements described in the book.
- The FTC sued for contempt; the district court found civil contempt and entered a $37.6 million judgment (gross revenues).
- Judge Gettleman issued a criminal show-cause order capping imprisonment at six months; the U.S. Attorney agreed to prosecute and sought tolling under the Speedy Trial Act.
- Trudeau requested reassignment; the case was transferred to Judge Guzmán, who (after dismissing the initial capped order) issued an amended uncapped show-cause order.
- Trial began within 70 non-excludable days measured from the uncapped order; a jury convicted Trudeau of criminal contempt and Judge Guzmán sentenced him to 10 years.
- On appeal Trudeau raised Speedy Trial Act, estoppel, willfulness jury instruction, sufficiency of evidence, exclusion of defense evidence, and sentence reasonableness challenges; the Seventh Circuit affirmed.
Issues
| Issue | Trudeau's Argument | Government's Argument | Held |
|---|---|---|---|
| Applicability/timing of the Speedy Trial Act | The Act’s 70-day clock began when the government agreed to prosecute the first (capped) show-cause order in April 2010, so >70 non-excludable days elapsed | A capped show-cause order (≤6 months) is outside the Act; the clock began when the uncapped order issued | The capped order was not covered by the Act; the clock began with the uncapped order and trial complied with the Act |
| Estoppel based on prosecutor’s initial statement | Government is estopped from changing position because prosecutor previously said the Act applied | Government later abandoned that view; no prejudice or reliance by Trudeau | No judicial estoppel; district judge did not abuse discretion in declining to estop the government |
| Jury instruction on "willfulness" (mens rea) | Recklessness insufficient; instruction erred by allowing recklessness rather than knowledge | Instruction aligned with Seventh Circuit precedent equating willfulness with knowing or reckless disregard; Trudeau approved the instruction at trial | Instruction was waived by agreement; not plain error; affirmed (circuit precedent controls) |
| Exclusion of defense evidence (Natural Cures approval; misinterpretation of decree) | Evidence of FTC approval of an earlier infomercial and misinterpretation evidence was relevant to good-faith willfulness defense | Evidence was tangential or implausible as a justification for the flagrant misrepresentations; some evidence properly excluded | Exclusion of Natural Cures evidence was probably erroneous as to foundation but harmless; exclusion of misinterpretation/First Amendment defense proper; conviction supported by sufficient evidence |
Key Cases Cited
- FTC v. Trudeau, 579 F.3d 754 (7th Cir.) (earlier appeal addressing civil contempt and misrepresentations)
- FTC v. Trudeau, 662 F.3d 947 (7th Cir.) (affirming monetary civil contempt sanction)
- Frank v. United States, 395 U.S. 147 (1969) (in contempt prosecutions with no authorized maximum, severity actually imposed informs whether offense is petty)
- New Hampshire v. Maine, 532 U.S. 742 (2001) (doctrine and limits of judicial estoppel)
- United States v. Hemmings, 258 F.3d 587 (7th Cir.) (Speedy Trial Act principles for reprosecutions and indictments)
- United Mine Workers of America v. Bagwell, 512 U.S. 821 (1994) (purposes of criminal contempt: punishment and vindication of court authority)
- Ratzlaf v. United States, 510 U.S. 135 (1994) (context matters in construing "willful")
- Elonis v. United States, 135 S. Ct. 2001 (2015) (mens rea interpretation in a statute lacking explicit mental state; negligence insufficient; court declined to decide recklessness)