Trudeau-Criminal-case-Documents-82-through-91-09-06-13.pdf

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UNITED STATES DISTRICT COURTNORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

UNITED STATES OF AMERICA

v.

KEVIN TRUDEAU

)

))))

No. 10 CR 886

Judge Ronald A. Guzmán

GOVERNMENT’S PROPOSED JURY INSTRU TIONS

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. SHAPIROUnited States Attorney

By: /s/ Marc Krickbaum MARC KRICKBAUM

APRIL PERRY Assistant United States Attorneys219 South Dearborn StreetChicago, Illinois 60604(312) 353-5300

September 6, 2013

Case: 1:10-cr-00886 Document #: 82 Filed: 09/06/13 of 25 PageID #:543



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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

else’s 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 person’s

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. 17th 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. 27th Cir. Pattern Crim. Fed. Jury Instruction 1.02 (2012) (modified to reflect thatcharging 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 defendant’s 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. 47th 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 witness’s testimony [including that of the defendant].

Some factors you may consider include:

• the intelligence of the witness;

• the witness’s ability and opportunity to see, hear, or know thethings the witness testified about;

• the witness’s memory;

• the witness’s demeanor;

• whether the witness had any bias, prejudice, or other reason to

lie or slant his or her testimony;

• the believability of the witness’s testimony in light of the otherevidence 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. 13United States v. Young , 20 F.3d 758, 765 (7th Cir. 1994); United States v. Iwese , 99 CR80 (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) The court entered a lawful and reasonably specific order;

2) The defendant violated the order; and

3) The defendant’s 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), rev’d on other grounds, Betts v. United States , 10 F.3d 1278 (7th Cir. 1993), Cited in 7th Cir. Pattern Crim. Fed. JuryInstructions 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. 15United States v. Hoover , 240 F.3d 593, 597 (7th Cir. 2001) (“We have definedwillfulness 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] conductis wrongful’ includes the ‘should have known’ approach usually understood to makerecklessness a sufficient mental state. . . . [C]riminal recklessness is present only if theactor 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 ) (“Willfulnessis defined as a volitional act done by one who knows or should reasonably be awarethat his conduct is wrongful, and it may be inferred from the facts and circumstancesin 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 actdone 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, beinferred from the facts and circumstances in proof.”); 7th Cir. Pattern Crim. Fed. JuryInstruction 4.10 (2012) (stating, as part of definition of “knowingly” that “In decidingwhether 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. 177th 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.3d575, 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 re-

examine 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 COURTNORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

UNITED STATES OF AMERICA

v.

KEVIN TRUDEAU

)

)))))

No. 10 CR 886Judge Ronald A. Guzmán

VERDI T FORM

With respect to the charges against defendant KEVIN TRUDEAU, we the jury

find defendant KEVIN TRUDEAU:

GUILTY ________ NOT GUILTY _________

So Say We All:

______________________ ______________________ FOREPERSON

______________________ ______________________

______________________ ______________________

______________________ ______________________

______________________ ______________________

______________________ ______________________

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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

UNITED STATES OF AMERICA )

) No. 10 CR 886vs. )

) Judge Ronald A. Guzmán

KEVIN TRUDEAU )

GOVERNMENT’S 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” Don’t 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 forThe 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

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Case: 1:10-cr-00886 Document #: 83 Filed: 09/06/13 Page 1 of 8 PageID #:568



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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 court’s 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 don’t 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 other1

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 they’re disappointed, they can send the book back, they get a refund.

There is nothing more to it than that”).

ARGUMENT

Defendant’s 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 defendant’s 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). Defendant’s contempt – his willful violation of the court’s order that

he accurately represent a book’s 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 court’s 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 court’s

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

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described in the book is good or bad or helpful or unhelpful does not add to the jury’s

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 defendant’s 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

witness’s 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

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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 party’s opinion.

3. The Court Should Prohibit a Mini-Trial on Customer Satisfaction

and the Book’s 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 defendant’s book was, or how

much people did or did not like it, or how people felt it compared to their expectations,

would waste this Court’s and the jury’s 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.

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See FTC Trial Ex. 41. Finally, despite defendant’s 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

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By: /s/ April M. Perry

APRIL M. PERRY

Assistant United States Attorney

219 South Dearborn Street

Chicago, Illinois 60604

[email protected]

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EASTERN DIVISION


) No. 10 CR 886vs. )


KEVIN TRUDEAU )

GOVERNMENT’S 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

defendant’s 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



3904, Doc. 56 at Part I. This order was stipulated and agreed by the defendant, as part

of defendant’s settlement of a previous contempt claim. See 03 CV 3904, Doc. 56. The

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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” Don’t 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 court’s 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 didn’t 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 that’s the price of the First

Amendment. That’s 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 FTC’s enforcement policy with respect to

advertisements for books. 7/22/08 Tr. 13. It was designed by the FTC so that the FTC’s

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 court’s 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.

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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] didn’t 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. Women’s 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 sit-

ins and mass parades by an injunction that had been issued ex parte. 388 U.S. at 308-

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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 speech-

restricting 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 court’s

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

defendant’s infomercials constituted protected speech under the First Amendment, or

that the order unconstitutionally encroached upon defendant’s 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, defendant’s 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 . .1

. 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 defendant’s 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 FTC’s 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 Defendant’s State of Mind at the Time of theOffense.

Although the “mirror image doctrine” itself provides no defense, defendant may

choose to testify that the doctrine affected his interpretation or understanding of the

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terms of the court order at issue in this case. Provided that a sufficient foundation is2

laid linking such testimony to defendant’s 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 defendant’s state

of mind at the time of the charged offense, any and all testimony concerning the

doctrine that is not specifically linked to defendant’s state of mind should be excluded

as irrelevant.3

Of course, as is discussed in more detail in the government’s motion in limine with2

respect to good faith defenses, defendant’s testimony regarding defendant’s 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 defendant’s expert witness regarding the history of 3

the “mirror image doctrine,” his interpretation of the doctrine, and his opinion that

defendant’s 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.

Similarly, the intent of defendant’s lawyers and/or the FTC’s lawyers when negotiating the

consent decree are not relevant unless that intent was shared with the defendant.

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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

defendant’s 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.


GARY S. SHAPIRO



APRIL M. PERRY


219 South Dearborn Street Chicago, Illinois 60604

[email protected]

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EASTERN DIVISION


) No. 10 CR 886vs. )


KEVIN TRUDEAU )

GOVERNMENT’S 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 government’s 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’s counsel

argued that the FTC found out about defendant’s 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 FTC’s 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 defendant’s 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 defendant’s 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.

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Defendant was not entitled to have the FTC immediately inform him whenever

he violated the court order. The FTC’s 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.


GARY S. SHAPIRO


By: /s/ Marc Krickbaum

MARC KRICKBAUM




(312) 469-6052

[email protected]

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EASTERN DIVISION


) No. 10 CR 886vs. )


KEVIN TRUDEAU )

GOVERNMENT’S 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






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 own—I can’t tell them what to

do—to broadcast the show.” 1/29/08 Deposition Tr. 48. He also claimed that “ITV’s 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 government’s 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

1 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 aidingand abetting liability to criminal contempt).

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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.


GARY S. SHAPIRO



MARC KRICKBAUM



(312) 469-6052

[email protected]

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EASTERN DIVISION


) No. 10 CR 886vs. )


KEVIN TRUDEAU )

GOVERNMENT’S 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 court’s 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



3904, Doc. 56 at 8. Defendant is now charged with criminal contempt for willfully

violating the terms of the district court’s 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 court’s 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.

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ARGUMENT

The government respectfully moves the Court to exclude all evidence of

defendant’s 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, defendant’s 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, “I’m not selling

any more products. Everything I’ve 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, defendant’s 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 FTC’s reading of the order, Trudeau has

invariably endeavored to address these concerns to the FTC’s satisfaction.” Case No.

10-2418, Doc. 17 at 5.

While the government recognizes that defendant’s dealings with the FTC with

respect to the interpretation of and compliance with the “misrepresentation” clause of

the order may be relevant to demonstrate defendant’s willfulness or lack of willfulness

in this case, defendant’s 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

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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). Other than testimony from1

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

defendant’s prior good acts, including his compliance with portions of the district

court’s order that did not involve representing the content of books in infomercials.


GARY S. SHAPIRO



APRIL M. PERRY



[email protected]

Even evidence offered under Rule 405(a), of course, cannot include specific instances of 1

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").

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EASTERN DIVISION


) No. 10 CR 886vs. )


KEVIN TRUDEAU )

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” Don’t Want

You to Know About, has sold more than one million copies.

3. Defendant’s 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. Both the Chicago Tribune and Chicago Sun1

See1

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.


GARY S. SHAPIRO



APRIL M. PERRY




[email protected]

See, e.g.,

2

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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1


FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

UNITED STATES OF AMERICA, )Plaintiff, )

) Case No. 10-CR-00886v. )

) Honorable Ronald A. GuzmanKEVIN TRUDEAU, )

Defendant. ) ____________________________________

DEFENDANT KEVIN TRUDEAU’S 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 Trudeau’s 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

Trudeau’s financial circumstances, corporate holdings, and sources of income. Such evidence is




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2

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. Trudeau’s 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’ Don’t Want You To Know About” and “The

Weight Loss Cure ‘They’ Don’t 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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3

and productive lives. A key theme to Trudeau’s 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 what’s 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 Statesgovernment is becoming more obtrusive into our daily lives than ever before. Butmore 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 talkabout something that’s very serious . . . and that is the United States Constitution,the Bill of Rights, is being thrown out the window. We are becoming more andmore of a police state where the U.S. government continues to say they can doanything 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) toharass and intimidate U.S. citizens who are doing something the governmentdoesn’t like, and I’m 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? Let’sgo to court, baby.” (NBC Chicago News,http://www.nbcchicago.com/investigations/Prosecutors-Want-Kevin-Trudeau-to-Pay-Up-209283781.html#ixzz2dfFP7DBR .)

“For years, oppressive government forces have waged a relentless pursuit againstKevin Trudeau to censor and control his freedom of speech. . . . Kevin Trudeauneeds you to stand with him. Stand up for your constitutional liberties, and helphim fend off the criminals in power trying to silence and even jail advocates offree speech for talking about the benefits of natural prevention, treatment, diet andcures.” (Homepage, www.standwithkt.com (click “The Cause”).)

B. The Civil Contempt Case

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




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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. 03-

cv-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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Trudeau’s 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 Trudeau’s assets and holdings, the FTC has

been seeking information from various sources regarding, among other things, the structure of

Trudeau’s 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. Trudeau’s 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. Trudeau’s Anti-Government Statements Should Be Excluded At Trial.

1. Trudeau’s 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, Trudeau’s 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, Trudeau’s 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 Trudeau’s 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 Attorney’s

Office being routinely referred to as the “government.” Allowing Trudeau’s negative public

opinions against the inchoate and undefined term “government” would invite the improper

inference that Trudeau’s 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

individual’s political beliefs, are by their nature particularly sensitive and inflammatory.

Trudeau’s statements should be excluded entirely to prevent severe prejudice to Trudeau.

3. Use Of Trudeau’s Statements Regarding The Government Constitutes

Improper Character Evidence Barred By FRE 404(b).

Finally, evidence of Trudeau’s 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 Trudeau’s 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.

Trudeau’s criminal contempt trial should proceed as if Trudeau entered into the 2004

Stipulated Order, and then the U.S. Attorney’s 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 Circuit’s

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




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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 government’s 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 Trudeau’s Financial Situation Should

Be Excluded At Trial As Irrelevant And/Or Prejudicial.

Trudeau’s 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 Trudeau’s statements in infomercials to

promote the sale of the Weight Loss Cure book were a willful violation of the September 2004

Stipulated Order. Furthermore, Trudeau’s 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 Trudeau’s 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.




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Even if evidence of Trudeau’s 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 Trudeau’s part. The inference would be both

misleading and destructive to Trudeau’s ability to obtain a fair trial in this case.

D. Evidence And Argument Concerning Trudeau’s Promotion of Coral Calcium

And the 2004 Contempt Finding Should be Excluded as Irrelevant And/Or

Prejudicial.

Trudeau’s 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 Court’s

2004 order. Consequently, any evidence and argument about Trudeau’s 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 Trudeau’s 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 Trudeau’s Prior Guilty Pleas Should Be

Excluded At Trial As Irrelevant And/Or Prejudicial.

Trudeau’s 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 Court’s 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;


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;


and evidence regarding his financial circumstances, corporate holdings, and sources of income;


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


and evidence regarding Trudeau’s prior guilty pleas.

Dated: September 6, 2013 Respectfully submitted,

KEVIN TRUDEAU

By: /s/ Thomas L. Kirsch IIOne of His Attorneys




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Kimball R. Anderson ([email protected])Thomas L. Kirsch II ([email protected])Katherine E. Rohlf ([email protected])WINSTON & STRAWN LLP35 West Wacker Drive

Chicago, Illinois 60601312-558-5600




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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 TRUDEAU’S CONSOLIDATED MOTION IN

LIMINE , and accompanying exhibits by filing such document through the Court’s Electronic

Case Filing System, which will send notification of such filing to:

Marc KrickbaumApril PerryUnited States Attorney’s Office219 South Dearborn StreetSuite 500Chicago, Illinois 60604

/s/ Thomas L. Kirsch IIThomas L. Kirsch IIAttorney for Kevin Trudeau




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EASTERN DIVISION


) No. 10 CR 886vs. )


KEVIN TRUDEAU )

GOVERNMENT’S 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 ITV’s 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









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A. Defendant’s 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, defendant’s 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 I’m 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 tobring it into compliance with my consent decree. . . . So once the lawyers

give us the greet light and say, “Yes, you’re in compliance. You’re legal.

You’re 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 [they’re] 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.” 1/29/08Deposition Tr. 62-63.

1 At the time, defendant was represented by attorneys at Jenner and Block,

not his current counsel.

2




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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. You’re the lawyer. Tell me.’ If I am, I’ll run the show. If I’m

not, we’ll change the show. . . . [The infomercial] goes through all these

legal brains that review it all . . . then advise whether they’re compliant

or not, make any revisions modifications, disclaimers or whatever and . . .

everybody is happy that we’re 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. They’re

the ones who went to law school. They’re 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 don’t know what else to do except rely on

counsel.” 1/29/08 Deposition Tr. 129-30.

B. Defendant’s Expected Defenses At Trial

Despite defendant’s 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, defendant’s 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 ITV’s 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 ITV’s 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 ITV’s

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 lawyer’s

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 here—evidence about the review,

approval, opinions, or advice of any lawyers, including ITV’s 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 Commc’ns 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

2 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-of-

counsel defense. Specifically, evidence relating to a lawyer’s 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 purposeof 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

ITV’s 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

3 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 defendant’s claim that he honestly

believed, based on ITV’s 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 counsel’s 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

ITV’s attorneys that the infomercials complied with the court order, but then

defendant’s 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 lawyer’s 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 ITV’s lawyers was

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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 ITV’s lawyers, the

jury is entitled to this evidence.

Therefore, if defendant offers any evidence about a lawyer’s 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 ITV’s

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

court’s 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

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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 ITV’s 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.


GARY S. SHAPIRO



MARC KRICKBAUM

Assistant United States Attorney 219 South Dearborn Street


(312) 469-6052

[email protected]

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EASTERN DIVISION


) No. 10 CR 886vs. )


KEVIN TRUDEAU )

GOVERNMENT’S 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






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” Don’t 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 defendant’s 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 government’s 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.

1 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 one’s 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 defendant’s lawyer’s 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 ITV’s 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 court’s exercise of

discretion to preclude evidence of statements made to a defendant, offered to show the

defendant’s mental state, because there was an insufficient foundation that the

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statements, which reflected the speaker’s 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.


GARY S. SHAPIRO



MARC KRICKBAUM




(312) 469-6052

[email protected]


Trudeau-Criminal-case-Documents-82-through-91-09-06-13.pdf

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