Trudeau Criminal Appeal 14 1869 Documents 12 and 13 Re in Forma Pauperis Etc 05 21 and 05-23-14

7/22/2019 Trudeau Criminal Appeal 14 1869 Documents 12 and 13 Re in Forma Pauperis Etc 05 21 and 05-23-14

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IN THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

) No. 14-1869UNITED STATES OF AMERICA, )

) Appeal from the United States

) District Court for the

v. ) Northern District of Illinois,

) Eastern Division

) 10 CR 886

KEVIN TRUDEAU )

) Honorable Ronald A. Guzmn

GOVERNMENTS RESPONSE TO DEFENDANT-APPELLANT

KEVIN TRUDEAUS MOTION TO PROCEED ON APPEAL IN FORMA

PAUPERIS AND FOR APPOINTMENT OF COUNSEL

The UNITED STATES OF AMERICA, by its attorney, ZACHARY T.

FARDON, United States Attorney for the Northern District of Illinois,

respectfully submits the following response to defendant-appellant Kevin

Trudeaus motion to proceed on appeal in forma pauperis and for

appointment of counsel.

BACKGROUND

On November 12, 2013, a jury convicted Trudeau of criminal contempt,

in violation of Title 18, United States Code, Section 401(3), based on

Trudeaus willful violation of an order of the United States District Court for

the Northern District of Illinois. R. 145. The district court (Honorable Ronald

A. Guzmn) ordered Trudeau into custody the same day. R. 144. On March

17, 2014, the court sentenced Trudeau to ten years in prison, after finding

Case: 14-1869 Document: 12 Filed: 05/21/2014 Pages: 7



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that Trudeaus contempt defrauded consumers of over $37 million. R. 173.

The judgment was filed on April 3, 2014, and on April 17, 2014, Trudeau filed

a notice of appeal and a motion in the district court for leave to appeal in

forma pauperis. R. 173, 175, 177. On April 24, 2014, the district court denied

the motion. Def. Mot. Ex. B. On April 29, 2014, Trudeau filed a motion in this

Court to proceed in forma pauperis on appeal. The motion states that while

Trudeau has previously retained Winston & Strawn to represent him,

Winston & Strawn now intends to represent Trudeau on a pro bono basis, but

the firm seeks waiver of filing and other fees and reimbursement of travel

expenses. Def. Mot. at 3; Def. Mot. Ex. D.

In addition to Trudeaus conviction for criminal contempt, from June

2013 to November 2013, he was held in civil contempt four times. 03 CV

3904, R. 729, 751, 773, 801. In holding Trudeau in contempt, the district

court (Honorable Robert W. Gettleman) found that Trudeau failed to pay a

$37 million civil judgment against him1; submitted under oath two false

financial statements2; paid over $5 million in legal fees to an asset protection

specialist for the sole purpose of evading the $37 million judgment3; created

over two-dozen domestic and offshore entities as part of an elaborate

103 CV 3904, R. 729.203 CV 3904, October 16, 2013 Tr. 35; FTC v. Trudeau, 572 F. Supp. 2d 919,

925 (N.D. Ill. 2008).3 03 CV 3904, July 26, 2013 Tr. at 27.




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scheme to conceal assets from the government4; lived a lavish lifestyle5; and

lied to a court-appointed receiver who was tasked with marshaling and

controlling Trudeaus assets.6

ARGUMENT

Title 28, United States Code, Section 1915(a) provides that any court

of the United States may authorize an appeal without prepayment of fees

. . . by a person who submits an affidavit that includes a statement of all

assets such prisoner possesses that the person is unable to pay such fees. . . .

Federal Rule of Appellate Procedure 24(a)(1) provides that a party to a

district-court action who desires to appeal in forma pauperis must file a

motion in the district court. If the district court denies the motion, the party

may file a similar motion in the court of appeals. Fed. R. App. P. 24(a)(5). The

motion in the court of appeals is a subsequent motion for in forma pauperis

status, rather than an appeal from the [district courts] denial. Fed. R. App.

P. 24(a)(5) advisory committees note (1967); Owens v. Keeling, 461 F.3d 763,

774 (6th Cir. 2006).

The district court correctly concluded that Trudeaus application

shows that defendant has sufficient assets to pay the filing fee for this

appeal. Def. Mot. Ex. B. The appellate filing fee is $505. As the district court

403 CV 3904, R. 713 at 3-9, 18; July 26, 2013 Tr. at 27-28.503 CV 3904, R. 713, 729; July 26, 2013 Tr. at 29.603 CV 3904, R. 773, 796, 801; January 30, 2014 Tr. at 41, 44.




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noted, Trudeaus in forma pauperis application states that in the six months

before Trudeau filed the application, his inmate account at the Metropolitan

Correctional Center in Chicago had total deposits of $2,310, withdrawals of

$1,860, and a current balance of $370.84. Def. Mot. Ex. A at 4-6; Def. Mot. Ex.

B. Since January 2014, Trudeau spent $1,111.16 at the Metropolitan

Correction Center commissary. Def. Mot. Ex. A at 6. The application further

states that Trudeau was last employed in the summer of 2013 at a salary of

14,000 swiss francs (about $15,000) a month, and that in the previous twelve

months his wife received wages of approx. $100,000, and he had received

approx. $10,000 in gifts and approx. [$]16,000 from a court-appointed

receiver. Id. at 1-2. According to the application, Trudeau supports no

dependents. Id.at 3.

As a prisoner, Trudeaus necessities are provided by federal

government. See Lumbert v. Ill. Dept. of Corrections, 827 F.2d 257, 260

(1987). Since he was convicted and incarcerated in November 2013, Trudeau

spent over $1,800, including over $1,100 since January 2014 in purchases

from the prison commissary. These expenditures reflect Trudeaus judgment

that his money is better spent on goods at the commissary than on the filing

fee for his appeal. Trudeau should not then expect the federal government to

pay his costs. See Lumbert, 827 F.2d at 260 (If the inmate thinks that a more

worthwhile use of his funds would be to buy peanuts and candy (two of the




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items that, the record shows, Lumbert has purchased from the prison

commissary) than to file a civil rights suit, he has demonstrated an implied

evaluation of the suit that the district court is entitled to honor.).

In Merritte v. Templeton, 493 Fed. Appx. 782 (7th Cir. 2012)

(unpublished), this Court held that a party was not entitled to in forma

pauperis status when his recent financial history showed that he could have

afforded the filing fee, but he chose to spend his money on other things.

Merritte was the plaintiff in a suit under 42 U.S.C. 1983 who had received

over $5,500 in the fifteen months his lawsuit was pending, had no financial

obligations, and spent the vast majority of his funds on prison

commissaries. 493 Fed. Appx. at 784. Merritte, like Trudeau, was able to pay

the filing fee, but he chose to spend his money elsewhere. Id. This Court held

that [u]nder these circumstances, the district court was permitted to

withhold the privilege of proceeding without prepaying a filing fee. Id.

Trudeaus financial record is similar, and the district court was right to

deny his motion.




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CONCLUSION

This Court should deny Trudeaus motion to proceed in forma pauperis

on appeal.

Respectfully submitted.

ZACHARY T. FARDON

United States Attorney

By: /s/ Marc Krickbaum

MARC KRICKBAUM

Assistant United States Attorney

219 S. Dearborn St.Chicago, Illinois 60604




CERTIFICATE OF SERVICE

I hereby certify that on May 21, 2014, I electronically filed the

foregoing GOVERNMENTS RESPONSE TO DEFENDANT-APPELLANT

KEVIN TRUDEAUS MOTION TO PROCEED ON APPEAL IN FORMA

PAUPERIS AND FOR APPOINTMENT OF COUNSEL with the Clerk of the

Court for the United States Court of Appeals for the Seventh Circuit by using

the CM/ECF system. I certify that all participants in the case are registered

CM/ECF users and that service will be accomplished by the CM/ECF system.

Respectfully submitted.

ZACHARY T. FARDON

United States Attorney

By: /s/ Marc Krickbaum

MARC KRICKBAUM

Assistant United States Attorney219 S. Dearborn Street - Fifth Floor

Chicago, Illinois 60604




No. 14-1869

In the United States Court of ppealsfor the Seventh Circuit

UNITED STATES OF AMERICA,PLAINTIFF-APPELLEE

v.

KEVIN TRUDEAU,DEFENDANT-APPELLANT

__________

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THENORTHERN DISTRICT OF ILLINOIS,EASTERN DIVISION,NO.10-CR-886-1

HON.RONALD A.GUZMAN,PRESIDING

__________

DEFENDANT-APPELLANT KEVIN TRUDEAUS REPLY IN SUPPORT

OF HIS MOTION TO PROCEED ON APPEAL IN FORMA PAUPERIS

AND FOR APPOINTMENT OF COUNSEL

__________

Kevin Trudeau respectfully states the following in support of his motion to

proceed on appeal in forma pauperisand for appointment of counsel:

The Government did not refute Mr. Trudeaus showing that he presently

lacks sufficient funds to pay the courts fees. Accordingly, Mr. Trudeau should be

allowed to proceed in forma pauperis. But even if the Court determines that Mr.

Trudeau must pay court fees, because the Government did not contest Mr. Tru-

deaus financial inability to employ counsel, it should appoint Christopher M.

Bruno as counsel of record under the Criminal Justice Act. 18 U.S.C.

3006(A)(b); Plan Of The United States Court Of Appeals For The Seventh Cir-




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cuit To Supplement The Plans Of The Several United States District Courts Within

The Seventh Circuit, Part III, 3.

Respectfully submitted,

/s/ Thomas L. Kirsch, II

MAY 23,2014

THOMAS L.KIRSCH,II

Winston & Strawn LLP

35 West Wacker Drive

Chicago, IL 60601

(312) 558-5600

[email protected]

Counsel for Defendant-AppellantKevin Trudeau




CERTIFICATE OF SERVICE

I, Thomas L. Kirsch, an attorney, certify that on May 23, 2014, I caused the

foregoing DEFENDANT-APPELLANT KEVIN TRUDEAUS REPLY IN SUP-

PORT OF HIS MOTION TO PROCEED ON APPEAL IN FORMA PAUPERIS

AND FOR APPOINTMENT OF COUNSEL to be served via ECF to the follow-

ing:

Marc Krickbaum

Assistant United States Attorney

110 E. Court Avenue, Suite 286Des Moines, IA 50309

(515) 473-9305

DATED: MAY 23,2014 /s/ Thomas L. Kirsch, II

THOMAS L.KIRSCH,II


Trudeau Criminal Appeal 14 1869 Documents 12 and 13 Re in Forma Pauperis Etc 05 21 and 05-23-14

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Transcript of Trudeau Criminal Appeal 14 1869 Documents 12 and 13 Re in Forma Pauperis Etc 05 21 and 05-23-14