in the united states court of appeals for the seventh circuit · no. 10-1383 in the united states...

No. 10-1383

In the United States Court of Appeals for the Seventh Circuit

__________

FEDERAL TRADE COMMISSION, PLAINTIFF-APPELLEE

v.

KEVIN TRUDEAU, DEFENDANT-APPELLANT

__________

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION, NO. 03-C-03904

HON. ROBERT W. GETTLEMAN, PRESIDING __________

REPLY BRIEF

__________

STEFFEN N. JOHNSON KIMBALL R. ANDERSON ANDREW C. NICHOLS THOMAS L. KIRSCH Winston & Strawn LLP Winston & Strawn LLP 1700 K Street N.W. 35 West Wacker Drive Washington, DC 20006 Chicago, IL 60601 (202) 282-5000 (312) 558-5600

Counsel for Defendant-Appellant Kevin Trudeau

Oral Argument Requested

Case: 10-1383 Document: 33 Filed: 03/22/2010 Pages: 32

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .......................................................................................................... ii

INTRODUCTION ...........................................................................................................................1

ARGUMENT ...................................................................................................................................2

I. Trudeau’s conviction cannot be sustained on the basis of 18 U.S.C. § 401(3). ..................2

A. This Court may not affirm Trudeau’s conviction based on a statutory offense that was not charged and proven in the district court. .................................2

B. The evidence here would not support a conviction under 18 U.S.C. § 401(3) even if that statute could properly be considered. .....................................3

1. There was no “reasonably specific order” relating to discovery. ................4

2. There is no evidence of a willful violation. .................................................7

II. The notion that Trudeau violated 18 U.S.C. § 401(1) is foreclosed by the text of the statute, precedent, and common sense. ..........................................................................8

A. Contempt cannot occur in a court’s “virtual presence.” ..........................................8

B. The amicus misstates the requirements for obstruction and mischaracterizes the record. ...................................................................................12

C. Trudeau lacked specific intent to obstruct justice. .................................................14

III. The First Amendment prohibits criminally punishing Trudeau for soliciting the e-mails at issue. .....................................................................................................................16

IV. Summary criminal process was wholly unwarranted. .......................................................18

A. Trudeau’s conduct did not meet the requirements of Rule 42(b). .........................18

B. Trudeau’s misconduct did not require an immediate criminal remedy. ................19

V. Any sentence of imprisonment is an abuse of discretion ...................................................21

CONCLUSION ..............................................................................................................................22

CERTIFICATE OF COMPLIANCE WITH FED. R. APP. P. 32(a)(7)

CERTIFICATE OF COMPLIANCE WITH CIRCUIT RULE 31(e)


ii

TABLE OF AUTHORITIES

Page(s)

CASES

Cabana v. Bullock, 474 U.S. 376 (1986) ...................................................................................................................3

Cole v. Arkansas, 333 U.S. 196 (1948) ...............................................................................................................2, 3

Cooke v. United States, 267 U.S. 517 (1925) ...........................................................................................................16, 19

Doe v. Maywood Hous. Auth., 71 F.3d 1294 (7th Cir. 1995) .............................................................................................3, 4, 5

Dunn v. United States, 442 U.S. 100 (1979) ...................................................................................................................3

Forest Grove Sch. Dist. v. T.A., 129 S. Ct. 2484 (2009) .............................................................................................................10

Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991) ...............................................................................................................16

In re Holloway, 995 F.2d 1080 (7th Cir. 1993) ...................................................................................................6

In re Jafree, 741 F.2d 133 (7th Cir. 1984) ...................................................................................................18

In re McConnell, 370 U.S. 230 (1962) .................................................................................................................13

In re Michael, 326 U.S. 224 (1945) .................................................................................................................17

In re Troutt, 460 F.3d 887 (7th Cir. 2006) .............................................................................................12, 18

In the Matter of Charles LaMarre, 494 F.2d 753 (6th Cir. 1974) .................................................................................................5, 6

Int’l Union v. Bagwell, 512 U.S. 821 (1994) .................................................................................................................20


iii

Jackson v. Tennessee, 2006 WL 2370154 (E.D. Tenn. Aug. 15, 2006) ......................................................................19

Kyllo v. United States, 533 U.S. 27 (2001) ...................................................................................................................11

Landmark Communications, Inc. v. Virginia, 435 U.S. 829 (1978) .................................................................................................................15

McFarland v. United States, 295 F. 648 (7th Cir. 1923) .........................................................................................................5

Mezibov v. Allen, 411 F.3d 712 (6th Cir. 2005) ...................................................................................................17

Nye v. United States, 313 U.S. 33 (1941) ...............................................................................................................8, 10

Ocean-Oil Expert Witness, Inc. v. O’Dwyer, 2009 WL 1402495 (E.D. La. May 14, 2009) .....................................................................11, 21

Pounders v. Watson, 521 U.S. 982 (1997) .................................................................................................................18

Richmond Black Police Officers Ass’n v. City of Richmond, 548 F.2d 123 (4th Cir. 1977) .....................................................................................................6

SEC v. Simpson, 885 F.2d 390 (7th Cir. 1989) ...................................................................................................20

Sefick v. Gardner, 164 F.3d 370 (7th Cir. 1998) ...................................................................................................17

United States v. Lowery, 733 F.2d 441 (7th Cir. 1984) ...................................................................................................19

United States v. Marshall, 719 F.2d 887 (7th Cir. 1983) ...................................................................................................20

United States v. Minarik, 842 F.2d 333 (6th Cir. 1988) .....................................................................................................5

United States v. Moschiano, 695 F.2d 236 (7th Cir. 1982) ...................................................................................................18

United States v. Mottweiler, 82 F.3d 769 (7th Cir. 1996) .................................................................................................7, 20


iv

United States v. Oberhellman, 946 F.2d 50 (7th Cir. 1991) .....................................................................................................12

United States v. Rangolan, 464 F.3d 321 (2d Cir. 2006).....................................................................................................11

United States v. Rylander, 714 F.2d 996 (9th Cir. 1983) .....................................................................................................6

United States v. Seale, 461 F.2d 345 (7th Cir. 1972) ...................................................................................................13

United States v. Silva, 140 F.3d 1098 (7th Cir. 1998) ...................................................................................................8

United States v. Simmons, 215 F.3d 737 (7th Cir. 2000) .....................................................................................................6

United States v. Turner, 812 F.3d 1552 (11th Cir. 1987) .................................................................................................6

United States v. Wilson, 421 U.S. 309 (1975) .......................................................................................................9, 10, 18

Zal v. Steppe, 968 F.2d 924 (9th Cir. 1992) ...................................................................................................16

STATUTES AND RULES

18 U.S.C. § 401(1) ................................................................................................................. passim

18 U.S.C. § 401(3) ................................................................................................................. passim

18 U.S.C. § 875 ..............................................................................................................................10

18 U.S.C. § 1030(a)(5) ...................................................................................................................10

18 U.S.C. § 1030 (e)(2)(A) ............................................................................................................10

18 U.S.C. § 2332f(a)(1) .................................................................................................................10

18 U.S.C. § 3553(a) .......................................................................................................................20

Fed. R. Crim. P. 42 ........................................................................................................................20

Pub. L. 107-273, div. B, tit. III, § 3002(a)(1), 116 Stat. 1805 (Nov. 2, 2002) .................................9


v

OTHER AUTHORITIES

American Heritage Dictionary of the English Language (1981) .....................................................9

Scott Austin, It’s Time to Reinvent the Email Inbox, WALL STREET JOURNAL, Feb. 20, 2009..........................................................................................................................................13

Colin R. Goote, The Wit & Wisdom of Sir Winston Churchill (1954) ...........................................15

Webster’s Ninth New Collegiate Dictionary (1983) ........................................................................9


INTRODUCTION

Having been appointed to defend the ruling below, the amicus principally seeks to fulfill

that responsibility by offering a ground for affirmance not relied upon by the district court.

Black-letter law, however, holds that appellate courts may not affirm criminal convictions based

on statutory grounds not charged and proven below. Here, the district court did not cite 18

U.S.C. § 401(3), let alone find that it was violated. Indeed, that the amicus leads with a § 401(3)

argument is tantamount to a confession that summary process was inappropriate, and that the

judgment may not be sustained under § 401(1).

Nor can it. Under binding Supreme Court precedent, the phrase “in” or “near” the court’s

“presence” connotes physical, not virtual, proximity. When Congress amended § 401 in 2002—

well into the digital age—it left this portion of the statute intact. Moreover, the Court reaffirmed

this reading of § 401 long after the advent of technology that facilitates “immediate and unme-

diated” communication. Amicus Br. 25. And that reading is supported not only by § 401(1)’s

plain meaning, but by the “least possible power” doctrine—which the amicus never discusses—

by the First Amendment, by Congress’s decision to limit criminal contempt to specified conduct

“and none other,” and, if any doubt remained, by the rule of lenity.

The amicus’ defense of the district court’s use of summary process is equally unpersua-

sive. Even assuming that Trudeau’s conduct necessitated an “immediate response” (Amicus Br.

42), it did not demand an immediate criminal response. Trudeau promptly apologized and re-

tracted his solicitation—and the emails largely stopped—before the court found him in contempt,

and well before sentencing. Moreover, Trudeau’s conduct occurred outside the public view, and

thus did not undermine the court’s authority. In sum, the “least possible power” required here

was a civil cease-and-desist order.

The decision below must be reversed.


2

ARGUMENT

I. Trudeau’s conviction cannot be sustained on the basis of 18 U.S.C. § 401(3).

The amicus’ lead argument in defense of the district court’s judgment is that Trudeau vi-

olated 18 U.S.C. § 401(3). This argument fails for two reasons. First, it wrongly presumes that

an appellate court may affirm a conviction based an alleged statutory violation not charged be-

low; and second, it wrongly presumes that a party may be convicted under § 401(3) for allegedly

acting in a manner inconsistent with a district court’s (conflicting) statements at a hearing, where

those statements were neither reflected in any “reasonably specific” written order nor directed to

the defendant personally in open court. And, of course, a § 401(3) violation cannot, without

more, support use of Rule 42(b) process.

A. This Court may not affirm Trudeau’s conviction based on a statutory offense that was not charged and proven in the district court.

As explained in our opening brief (at 24-25), the district court never alleged that Trudeau

violated 18 U.S.C. § 401(3). Indeed, the court did not cite § 401(3), much less find its elements

satisfied beyond a reasonable doubt.

Nonetheless, citing the district court’s statement that Trudeau was “trying to do an end-

run” around a “ruling” that he “wasn’t going to hear anymore evidence,” the amicus says Tru-

deau may be convicted for violating a “separate and independent” subsection of § 401. Br. 18,

17. Effectively, the amicus is arguing that this Court may affirm based on any offense purpor-

tedly supported by the record, regardless of whether Trudeau was convicted of—or charged

with—that offense. That argument, however, has no application in criminal cases.

As the Supreme Court held in Cole v. Arkansas, 333 U.S. 196 (1948), a conviction may

not be affirmed on the basis of an alleged statutory violation not tried and proven in the trial

court. The defendants there were convicted for violating one subsection of a state law, but the


3

appellate court affirmed “on the ground that the information had charged and the evidence had

shown” that they committed a “separate and distinct” offense under another subsection of that

law. Id. at 198. The Supreme Court reversed, explaining that “[n]o principle of procedural due

process is more clearly established than that notice of the specific charge, and a chance to be

heard in a trial of the issues raised by that charge, if desired, are among the constitutional rights

of every accused in a criminal proceeding.” Id. at 201.

Under Cole, a court may not “affirm[] [a] conviction as though [the defendant] had been

tried and convicted of a violation of [one section of a statute] when in truth [he] had been tried

and convicted only of a violation of a single offense charged in” another “distinctly and substan-

tially different” section of the statute. Id. at 202. Accord, e.g., Dunn v. United States, 442 U.S.

100, 106 (1979); Cabana v. Bullock, 474 U.S. 376, 387 n.4 (1986). “[A]ppellate courts are not

free to revise the basis on which a defendant is convicted simply because the same result would

likely obtain.” Dunn, 442 U.S. at 107.

Accordingly, Trudeau’s conviction could not be affirmed under § 401(3), which the dis-

trict court did not cite, and which the amicus concedes creates a “separate and independent” of-

fense (Br. 17)—even if the evidence otherwise supported such a conviction.

B. The evidence here would not support a conviction under 18 U.S.C. § 401(3) even if that statute could properly be considered.

The evidence here does not, however, establish a violation of § 401(3), much less beyond

a reasonable doubt. The “essential elements of a finding of criminal contempt under 18 U.S.C.

§ 401(3) are a lawful and reasonably specific order of the court and a willful violation of that or-

der.” Doe, 71 F.3d at 1297. Here, there was no “reasonably specific order,” let alone a willful

violation.


4

1. There was no “reasonably specific order” relating to discovery.

The only relevant order stated that “the court will allow defendant to take discovery and

present evidence on matters such as consumer loss.” App. 473 (Dec. 3, 2009, Order). As the

amicus acknowledges, “the district court initially read this Court’s opinion as requiring that the

record be reopened for further evidence on consumer harm.” Br. 19 (emphasis omitted). And

even on December 22, when the amicus says the court issued a new “ruling” (Br. 17), the court’s

minute order made no reference to that issue. App. 463.

The amicus’ argument that Trudeau violated a “reasonably specific order” (Doe, 71 F.3d

at 1297) thus rests solely on Judge Gettleman’s statements in open court on December 22. Br.

20-21 (collecting statements). As explained below, however, these statements are insufficient.

First, they are inconsistent and indefinite. Second, they do not amount to a “writ, process, order,

rule, decree, or command,” 18 U.S.C. § 401(3), as those terms have been interpreted. Third, vi-

olations of oral rulings can amount to criminal contempt at most where directed to the defendant

personally in open court.

First, although the amicus cites several statements from the December 22 hearing (Br.

20-21), a comparable number of statements suggest that the judge’s discovery “ruling” was too

indefinite to support a criminal conviction for violating it. For example, the court stated: “Most

likely we will have another discussion about this. But my job now is going to be to go back and

try to see whether or not I agree that the record is sufficient to adequately explain to my friends

upstairs why I’m doing what I want to do here.” App. 461. Similarly, the court indicated that

“we’re talking about taking the record we have, at least at this point, taking the record we have

and making sure that the record is sufficient to support an award. You know, I think you are en-

titled to argue about whether it is or not, and if it isn’t, what we do about it[.]” App. 437-48.

Likewise, the court stated that “[consumer loss] is the remedy I am seeking to impose, and I want


5

to make sure the record is sufficient now. If there is some glaring deficiency in the record, then I

might be more willing to think about allowing more evidence, discovery, whatever.” Id. at 437.1

The district court’s inconsistent positions and inconclusive statements concerning addi-

tional evidence raise at least a reasonable doubt that Trudeau violated a “reasonably specific or-

der.” Doe, 71 F.3d at 1297. The amicus’ notion that the court below “could not have expressed

its ruling with greater clarity or precision” (id.) is simply unsupportable. “[B]efore one may be

punished for contempt for violating a court order, the terms of such order should be clear and

specific, and leave no doubt or uncertainty in the minds of those to whom it is addressed.”

McFarland v. United States, 295 F. 648, 650 (7th Cir. 1923). That standard is not met here, as

evidenced by the FTC’s own submission of supplemental evidence, without leave of the court,

after its comments about the sufficiency of the record.

Second, even setting aside their inconclusive nature, the district court’s oral statements do

not constitute an “order” for purposes of § 401(3). As the Sixth Circuit has explained, “for an

‘order’ or ‘command’ to be enforced by criminal contempt proceedings, it must be clear and de-

finite and ‘entered’ upon the record or records of the court. These standards strongly suggest

that such order be permanently preserved for review. This normally means a written order issued

by the court and personally served upon the alleged contemn[o]r.” In the Matter of Charles La-

Marre, 494 F.2d 753, 758-59 (6th Cir. 1974). See also United States v. Minarik, 842 F.2d 333,

333 (6th Cir. 1988) (“court’s statement to the jury was not a court directive for purposes of sec-

tion 401(3)”); United States v. Rylander, 714 F.2d 996, 1003 (9th Cir. 1983) (requiring know-

1 Accord App. 445-46 (“I’m comfortable resting on record, unless I decide after—you know, this is a daunting task that you put before me. I will have to, you know, go through everything again very careful-ly.”); App. 435-36 (“I don’t see any reason, absent some reason that would depend on some sort of changed circumstances, to reopen discovery again and to start over . . . . I think the FTC does have a bur-den here of demonstrating to me that the record as we have it is sufficient[.]”); App. 443 (“Maybe one day I’ll see Mr. Trudeau again if you get your way [to reopen the record] Mr. Anderson.”).


6

ledge of clear and definite court directive or order); Richmond Black Police Officers Ass’n v. City

of Richmond, 548 F.2d 123, 129 (4th Cir. 1977) (requiring violation of “a decree which was de-

finite, clear, specific, and left no doubt or uncertainty in the minds of those to whom it was ad-

dressed”). Moreover, the district court’s earlier discovery order was not withdrawn; no new or-

der addressing that topic was entered; and a party may not fairly be presumed to know the details

of every exchange in open court, on pain of being thrown in jail.

Third, even the amicus’ authorities (Br. 22) confirm that, at most, disobeying an oral “rul-

ing” can support a § 401(3) violation only where the contemnor violates commands directed to

him personally in open court. See also Charles Lamarre, 494 F.2d at 759 (“[a non-written] order

. . . may likewise be enforceable if entered in open court in the presence of the person concerned

or with his knowledge clearly proved”). In United States v. Simmons, for example, the contem-

nor violated the judge’s repeated direct commands that he testify. 215 F.3d 737, 741 (7th Cir.

2000). In In re Holloway, the judge repeatedly told counsel not to ask a witness about a specific

document, but he persisted. 995 F.2d 1080, 1085 (D.C. Cir. 1993). And in United States v.

Turner, counsel violated a clear directive not to make certain previously-excluded arguments to

the jury. 812 F.2d 1552, 1568 (11th Cir. 1987). Here, Trudeau was not even present when the

district court made its statements about reopening the record, and there is no evidence that he

read the transcript. Moreover, had he been present (or read the transcript), it is far from clear

that he (a non-lawyer) would have interpreted those statements to bar him from soliciting suppor-

tive e-mails in what was effectively an informal offer of proof.

Indeed, if submitting additional evidence violated a clear and specific court order, then it

follows that any submission of new evidence, in whatever form, would be contemptuous. Yet

both the amicus and the district court have stated that submitting such evidence in other forms


7

would have been lawful. Br. 23 (“submitting letters would have been ‘a perfectly legitimate ex-

ercise if you wanted to do that as an offer of proof or something like that to complete the

record’” (quoting App. 67)); id. (stating that the “manner” of Trudeau’s solicitation was unlaw-

ful). And even after December 22, the FTC has submitted new evidence—without making an

“offer of proof,” and without consequence. Dkt. No. 287, Exs. 56-60. Thus, the most that can be

said is that Trudeau chose an inappropriate means of submitting new evidence, which confirms

that the only real issue is whether he violated § 401(1).

2. There is no evidence of a willful violation.

In any event, no evidence supports concluding—let alone beyond a reasonable doubt—

that Trudeau willfully violated any reasonably specific court order. Citing Doe, the amicus says

Trudeau “at least should have been aware[] that submitting [consumer satisfaction] evidence di-

rectly to Judge Gettleman’s inbox would violate the ruling” at issue. Br. 22. But “negligence

does not support a criminal conviction under § 401”; “criminal recklessness” is required. Mott-

weiler, 82 F.3d at 771-72. Trudeau’s conduct plainly falls short of this standard, particularly

given the uncertain nature of the subject “ruling.”

The amicus can suggest otherwise only by drawing every possible inference against Tru-

deau. For example, he acknowledges that Trudeau could have submitted the same e-mails in an

offer of proof. Br. 23. Yet he says it can be inferred from “[c]ommon sense” that Trudeau “had

to have known” that failing to do so was wrongful. Br. 22, 23. To put it mildly, that is anything

but the only inference supported by the evidence.

Similarly, the amicus says there is no reasonable doubt that Trudeau’s solicitation of e-

mails was designed to submit evidence “in a manner that [Judge Gettleman] could not ignore.”

Br. 23. But courts do not typically ignore offers of proof, even when they exclude the evidence.

And as the amicus acknowledges, identical physical letters could have been “‘tossed in the circu-


8

lar file.’” Br. 40. Thus, a neutral fact-finder might have concluded that Trudeau believed the e-

mails could easily be deleted, if unhelpful—or that they would be handled by support staff. In

any event, the amicus’ arguments cannot be squared with the presumption of innocence, and the

lack of evidence of criminal intent requires rejecting the amicus’ § 401(3) argument.

Finally, the amicus does not dispute that, even if § 401(3) were satisfied, that alone could

not justify use of summary process. Opening Br. 15-16.

II. The notion that Trudeau violated 18 U.S.C. § 401(1) is foreclosed by the text of the statute, precedent, and common sense.

Nor is there any merit to the argument that Trudeau violated § 401(1). Like the district

court, the amicus repeatedly sets the bar for a § 401(1) violation far lower than it is, and even

then must exaggerate the facts to clear the bar. But under the actual standard and actual facts, no

reasonable fact-finder could find beyond a reasonable doubt that Trudeau obstructed justice “in”

the court’s “presence.” The district court abused its discretion in concluding otherwise. See

United States v. Silva, 140 F.3d 1098, 1101 n.4 (7th Cir. 1998) (legal errors and clearly errone-

ous factual findings constitute abuses of discretion).

A. Contempt cannot occur in a court’s “virtual presence.”

The requirement that contempt must occur “in the presence” of the court or “near thereto”

(18 U.S.C. § 401(1)) was a “drastic delimitation by Congress of the broad undefined power of

the inferior federal courts” and was “inten[ded] to safeguard constitutional procedures by limit-

ing courts . . . to the least possible power adequate to the end proposed.” Nye, 313 U.S. at 45;

Michael, 326 U.S. at 227. Ignoring these principles, the amicus asks the Court to hold that “Tru-

deau placed himself in the presence of anybody with a computer, including the district court,

which viewed Trudeau’s message,” “listened to his radio broadcast over the Internet,” and re-


9

ceived “unexpected e-mails” from third parties. Amicus Br. 29, 35, 36, 41. This novel, limitless

reading of § 401(1) contravenes the statute’s text, precedent, and common sense.

Most importantly, the amicus’ “virtual” reading of “presence” ignores the principle that

the term must be given its ordinary meaning, which connotes physical proximity. Webster’s

Ninth New Collegiate Dictionary 930 (1983) (“the part of space within one’s immediate vicini-

ty”; “the neighborhood of one of superior esp. royal rank”); American Heritage Dictionary of the

English Language 1034 (1981) (“The area immediately surrounding a great personage, especial-

ly a sovereign granting audience.”). Consistent with these definitions, the Supreme Court has

held that “the phrase ‘in its presence or so near thereto’ . . . was intended to apply a geographical

limitation on the power.” Wilson, 421 U.S. at 315 n.6. Under the amicus’ interpretation, by con-

trast, there is no such limitation. As long as the court “viewed [the] message” on its computer

(Br. 29-30), a contumacious message could be posted anywhere in the world and still be deemed

to have occurred “in” the court’s “presence.” But this confuses the fruits of allegedly contuma-

cious conduct with the conduct itself. Section 401(1) covers only the latter—a point forcefully

confirmed by Congress’s decision to define criminal contempt as the “misbehavior” outlined in

the statute “and none other.”

Recognizing that flexibility might occasionally be needed, Congress covered activity oc-

curring “near” the court. Id. The amicus never discusses this phrase, perhaps because conduct

“near” the court cannot justify summary process. Opening Br. 16. But words must be read in

context, and Congress’s use of the term “near” further confirms its concern with contempt occur-

ring physically near the court. Indeed, Congress amended § 401 in 2002 to clarify that courts

may both fine and imprison contemnors. Pub. L. 107-273, div. B, tit. III, § 3002(a)(1), 116 Stat.

1805 (Nov. 2, 2002). But Congress did not otherwise alter § 401’s scope, which confirms that


10

Nye and Wilson remain binding in the digital age. Forest Grove Sch. Dist. v. T.A., 129 S. Ct.

2484, 2486-87 (2009) (“Congress is presumed to be aware of, and to adopt, a judicial interpreta-

tion of a statute when it reenacts that law without change.”).

Contrary to the amicus, Nye’s physical proximity requirement does not lead to absurd re-

sults, such as a lack of ability to prosecute Trudeau if he had “asked his supporters to plant a

bomb in the courthouse that Trudeau remotely detonated” or “sen[t] a computer worm via the

Internet to destroy the court’s e-mail system.” Br. 26. For starters, nothing remotely so serious

happened here, so there is no need to decide whether such misbehavior would violate § 401(1).

Compare Amicus Br. 13, 15, 41 (“attack,” “attack,” “attack”) with App. 27 (“I’m not saying this

was a cyber-attack. It wasn’t.”). But more fundamentally, these examples ignore the rest of the

U.S. Code, which amply covers such conduct. 18 U.S.C. § 1030(a)(5), (e)(2)(A) (criminalizing

“transmission of . . . information” that intentionally damages computers “exclusively for the use

of . . . the United States government”); 18 U.S.C. § 875 (criminalizing “transmi[tting] in inter-

state commerce any communication containing any threat . . . to injure the person of another”);

18 U.S.C. § 2332f(a)(1) (criminalizing “detonat[ing] an explosive or other lethal device in, into,

or against a place of public use”). By limiting direct criminal contempt to acts that occur in the

court’s presence, Congress sensibly excluded conduct that might indirectly interfere with the

administration of justice, but would necessitate ordinary fact-gathering. There is no injustice in

that.

The amicus nonetheless insists that contempt in the court’s presence happened here be-

cause the latest technology placed Trudeau “virtually” in the courtroom. Br. 25-26. But the ra-

dio and telephone were widely used before Nye—which was reaffirmed in 1975, Wilson, 421

U.S. at 315, and blessed by Congress in 2002—and both provide opportunities for “immediate


11

and unmediated” communication with courts (Amicus Br. 25).2 Yet the amicus cites only one

direct contempt case involving either of those media—an unpublished district court case involv-

ing contempt in a pretrial teleconference, where the defendant cursed at the judge and hung up.

Ocean-Oil Expert Witness, Inc. v. O’Dwyer, 2009 WL 1402495, at *1 (E.D. La. May 14, 2009).

Assuming, arguendo, that this misbehavior occurred “in” the court’s “presence,” that situation

differs drastically from this one, where no hearing was underway and the court’s dignity was not

at stake. To the contrary, the court here called a hearing—artificially creating the “interruption.”

Moreover, with technologies like telephones and e-mail, the court has more tools to limit misbe-

havior than when it occurs in its actual presence. If anything, therefore, technological innova-

tions favor continuing to interpret § 401(1) narrowly. Opening Br. 19-20; see also Rangolan,

464 F.3d at 327 (collecting cases). If Congress disagrees, it can say so. But until then, § 401(1)

covers contempt “in” or “near” the court’s “presence”—“and none other.”

We acknowledge that, in limited situations, other “statutory and constitutional require-

ments that previously have been applied only to physical space have been held to apply with

equal force to virtual space.” Amicus Br. 26. But that does not warrant an expansive interpreta-

tion here. The provisions cited by the amicus are based on distinct policy and constitutional con-

siderations. For example, the Fourth Amendment is designed to protect personal privacy, and

applying it to non-physical intrusions enhances personal liberty. See Kyllo v. United States, 533

U.S. 27, 34 (2001) (refusing to “permit police technology to erode the privacy guaranteed by the

Fourth Amendment”). The purpose of § 401(1)’s “in the presence” language, by contrast, is to

limit the contempt power. Interpreting the statute to capture “virtual” contempt would frustrate

that purpose, and diminish personal liberty.

2 Indeed, insofar as telephone conversations require simultaneous participation by the parties, e-mails are far less “immediate and unmediated.”


12

Moreover, unlike the amicus’ examples, the “in the presence” prong of § 401(1) can op-

erate with due process rights suspended—raising the stakes even higher than when the court in-

terprets the definition of an ordinary crime. That, in part, is why § 401 criminalizes limited types

of misconduct “and none other.” And that is why every contempt decision invokes a kind of su-

per rule of lenity—that the court must exert the “least possible power adequate to the ends pro-

posed.” E.g., Troutt, 460 F.3d at 893. The amicus never mentions that principle, which cuts

against adopting a limitless “virtual presence” standard. And the fact that the amicus must rely

on such inapposite authorities confirms that there is no authority for expanding § 401(1).

Finally, the amicus has no convincing answer to our argument based on the rule of lenity.

Although the district court stated that there were “two ways to look at this [statute]” (App. 25),

the amicus insists that it unambiguously extends where it has never gone before—to the court’s

“virtual” presence. Br. 29. As explained above, this argument is foreclosed by binding Supreme

Court precedent, by the ordinary meaning of “presence,” by the immediate statutory context—

including the “near” and “none other” language—and by the “least possible power” doctrine.

But if the statute were ambiguous, the rule of lenity would foreclose the amicus’ interpretation.

Br. 19-20. That alone requires reversal.

B. The amicus misstates the requirements for obstruction and mischaracterizes the record.

The amicus also misstates the law and exaggerates the facts to make what happened here

look like criminal obstruction of justice. In fact, the administration of justice was not obstructed.

According to the amicus, “the correct inquiry” as to obstruction of justice is “whether the

conduct ‘actually obstructed the administration of justice—by delaying proceedings, making

more work for the judge, inducing error, imposing costs on parties, or whatever.’” Br. 30 (quot-

ing United States v. Oberhellman, 946 F.2d 50, 52 (7th Cir. 1991)). But that dictum from Ober-


13

hellman does not describe the law of this Circuit. Criminal obstruction is not caused by “any in-

terruption.” Seale, 461 F.3d at 369. Rather, there must be an “obstruction” of the “administra-

tion of justice” (§ 401(1) (emphasis added)), and the question is “whether the specified conduct

. . . rose to the level of an obstruction of the judicial process”; it must “clearly be shown . . . that

the [conduct] actually obstructed the district judge in the performance of a judicial duty” (Seale,

461 F.2d at 369; In re McConnell, 370 U.S. at 234 (emphases added)). “[A]dministration of jus-

tice,” “judicial process,” “judicial duty”—these terms convey the sense of the judge not merely

sitting in chambers, but acting officially, which is exactly when the contempt power historically

has been applied. Opening Br. 31-32.

Moreover, even if a “material and substantial” obstruction of the judge’s work in cham-

bers were grounds for summary conviction, no such obstruction was shown here. According to

the amicus, “Trudeau obstruct[ed] the administration of justice by . . . causing the necessity of a

threat assessment.” Br. 24 (quoting App. 26). But as the district court admitted, physical letters

could have been “tossed in the circular file.” App. 35. And if the court could have pitched phys-

ical letters—which are as likely to contain threats and more likely to contain dangerous sub-

stances—it likewise could have deleted the e-mails without a threat assessment. After all, the

district court itself declared that these e-mails were “seemingly innocent.” App. 58. Even a cur-

sory review of the e-mails confirms that they were innocuous. Opening Br. 28. Accordingly,

they need not have triggered any “material and substantial” obstruction of the judge’s work.

At bottom, the amicus hyperbolizes what happened here to make it seem like a crime.

Admittedly, having to re-route lots of e-mails can be a significant inconvenience. But this “was

not a cyber-attack.” App. 27. No computer processors failed; no servers crashed; and no access

to court files was impaired. Many busy executives receive hundreds of e-mails on a matter over


14

the course of a two- or three-day period. See Scott Austin, It’s Time to Reinvent the Email Inbox,

WALL STREET JOURNAL, Feb. 20, 2009. Such messages may be annoying, but they are common-

place and are not “obstructions” in any reasonable sense of the term. The district court thus

overreacted, misapplying § 401(1). This Court should reverse.

C. Trudeau lacked specific intent to obstruct justice.

Finally, the amicus fails to demonstrate how a reasonable fact-finder could find beyond a

reasonable doubt that Trudeau had a “specific intent to obstruct” justice. Br. 22. Although the

amicus asserts that the district court’s vantage point entitles it to deference (Br. 37), the amicus

does not defend Judge Gettleman’s grounds for finding criminal intent—that Trudeau was a “ca-

reer contemnor” who found the court’s “not publicly available” e-mail address via Google. See

Opening Br. 23-24 (refuting that rationale). Instead, the amicus points to other pieces of out-of-

court evidence, none of which shows criminal intent.

First, the amicus says specific intent to obstruct justice is “largely shown” for “the rea-

sons set forth” in the amicus’ discussion of intent under § 401(3)—namely, that Trudeau suppo-

sedly violated the court’s oral discovery ruling. Br. 33. But as we have shown, even if violating

a discovery order could constitute “specific intent to obstruct justice,” there was no willful viola-

tion of a clear order here. See supra pp. 7-8.

Second, the amicus notes that Trudeau “asked his supporters to send e-mails directly to

Judge Gettleman’s inbox.” Br. 23. But this does not show specific intent to obstruct. One could

just as easily infer that, by directing supporters to the court’s public e-mail address, Trudeau

meant to help the court—albeit mistakenly—by making it easy to submit helpful letters and

enabling the court to view, search, or delete them electronically. One may not assume that Tru-

deau knew the e-mails would not be screened (see Amicus Br. 26-27) or that the court would

elect to view the emails in the courtroom. Nor may it be assumed that Trudeau had the faintest


15

idea that supportive e-mails would prompt a threat assessment. Indeed, had Trudeau been per-

mitted to testify in a Rule 42(a) proceeding, he would have explained that he thought his conduct

would cause no more disruption than encouraging people to e-mail their Congressmen, that he

believed he was properly encouraging people to exercise their right to petition the government,

and that he viewed the e-mails as comparable to letters of mitigation. Opening Br. 34-35. A rea-

sonable fact-finder would likely conclude that Trudeau suspected no hindrance at all—precisely

because he has “a website and e-mail club and thus deals regularly with technology.” Amicus

Br. 33.

Third, the amicus says that Trudeau’s “ugly diatribe” regarding federal employees shows

that he “intended to obstruct, not aid, the administration of justice.” Br. 33, 34. Admittedly,

Trudeau is often critical of federal authorities. But intent to criticize the government does not

constitute intent to obstruct justice. Nor, in our democratic tradition, does such intent necessarily

conflict with a desire to aid the government. Rather, criticism is “the life-blood of democracy.”

Colin R. Goote, The Wit & Wisdom of Sir Winston Churchill 148 (1954); see also Landmark

Communications, Inc. v. Virginia, 435 U.S. 829, 842 (1978) (“speech cannot be punished when

the purpose is simply to protect the court as a mystical entity or the judges as individuals or as

anointed priests set apart from the community and spared the criticism to which in a democracy

other public servants are exposed”) (citation and quotation omitted). Certainly no reasonable

fact-finder could have concluded beyond a reasonable doubt that Trudeau intended to obstruct

justice when, after taking a commercial break, he turned to a new subject and reminded his lis-

teners about his case, asking them to write the court.

Finally, as to the amicus’ claim (at 33-34) that Trudeau used hyperbole in stating that the

FTC wants “all my books burned,” Trudeau did not unfairly represent the court’s sanction. After


16

all, this Court vacated a ban on Trudeau’s infomercials that was to last for three years, applied to

all of Trudeau’s books, and kept him from advertising them for ten months. In any event, such

hyperbole cannot support an inference of criminal intent, much less beyond a reasonable doubt.

At bottom, the amicus’ extrinsic evidence is a makeweight; and even if it could raise an

inference of criminal content, Trudeau would be entitled to rebut it. Cooke, not mentioned by

the amicus, held that “in cases like this, where the intention with which acts of contempt have

been committed must necessarily and properly have an important bearing on the degree of guilt

and the penalty which should be imposed, the court cannot exclude evidence in mitigation.” 267

U.S. at 538. Lacking any direct evidence, the court below claimed to know that Trudeau pos-

sessed specific intent to obstruct justice. But the available extrinsic evidence did not permit such

an inference, and for that reason too § 401(1) is not satisfied.

III. The First Amendment prohibits criminally punishing Trudeau for soliciting the e-mails at issue.

As explained in our opening brief (at 26-30), courts may regulate communications with

judges about pending cases, but must do so without imposing overbroad sanctions. This First

Amendment principle fully applies in contempt cases, and in fact parallels the “least possible

power” doctrine of contempt law. Opening Br. 29-30.

Citing cases involving in-court speech of attorneys—officers of the court—the amicus re-

sponds that courts are a “nonpublic forum” where speech may be freely restricted. Br. 34-36.

But these cases do not support imposing criminal punishment on a party’s communications with

courts, let alone for the third-party speech here—which essentially criticized the government for

overreaching and appealed for leniency toward Trudeau.

Indeed, these authorities do not even address what constitutes a constitutionally excessive

sanction. Gentile v. State Bar of Nevada, 501 U.S. 1030, 1076 (1991), simply stated that attor-


17

neys may be reprimanded for commenting on pending cases where they should know that doing

so has a “substantial likelihood of materially prejudicing” the outcome. Zal v. Steppe, 968 F.2d

924, 928 (9th Cir. 1992), held only that an attorney could be prohibited from saying words that

would have violated a trial court ruling on a motion in limine. Mezibov v. Allen, 411 F.3d 712

(6th Cir. 2005), held only that an attorney could not bring a § 1983 claim against a prosecutor

who publicly criticized his in-court statements. And Sefick v. Gardner, 164 F.3d 370, 373 (7th

Cir. 1998), the only case cited involving a non-lawyer, held only that courts may exclude artists’

satirical statues from courthouse lobbies. None of these cases suggests that a court may crimi-

nally punish a party for speech that does not satisfy the Brandenburg test for actionable threats,

but is simply directed to the court in an improper form.

The amicus attempts to distinguish Jafree, Craig, and Bridges on the ground that they in-

volved newspaper articles that did not obstruct justice. Br. 36. But both Trudeau’s solicitation

and the e-mails here were likewise authored out of court; and as we have shown, this case does

not involve an obstruction of justice. Indeed, the amicus does not respond to our showing that

the e-mails here did not constitute “true threats.” Opening Br. 28. Nor does he dispute that the

e-mails were not ex parte communications and did not disrupt any ongoing proceeding. Further,

he acknowledges that, had the e-mails been letters, they could have been “‘tossed in the circular

file.’” Br. 40. And he recognizes that Trudeau was free to submit the same materials via counsel

in an “offer of proof.” Br. 23. His argument is thus that courts may convict a party for soliciting

e-mails in violation of a manner restriction on communication with the court. We are aware of

no authority, from any jurisdiction, that supports such a position. The conviction must therefore

be reversed.


18

IV. Summary criminal process was wholly unwarranted.

The amicus also fails to justify the district court’s use of summary process. The ultimate,

“oft-repeated” question in every contempt case is this: Did the court exercise the “least possible

power adequate to the end proposed”? Moschiano, 695 F.2d at 251 (quoting Wilson, 421 U.S. at

319). The amicus never mentions that question, undoubtedly because the answer is “no.” More-

over, the amicus ignores both the history of summary process and its animating rationale—the

need to prevent “misconduct occurring in court,” where “the affront to the court’s dignity is more

widely observed.” Pounders, 521 U.S. at 988; Opening Br. 31-32. Trudeau’s solicitation was

not driven by criminal intent, did not occur in the court’s presence, and did not diminish the

court’s authority. An “immediate response” was needed (Amicus Br. 42), but an immediate civil

response would have sufficed.

A. Trudeau’s conduct did not meet the requirements of Rule 42(b).

First, Trudeau did not act in the court’s presence. According to the amicus, “[s]ending e-

mails to a judge’s computer places the sender in the court’s actual presence.” Br. 38. But as we

have explained, physical letters at most put the sender at the borderline of the court’s presence.

Troutt, 460 F.3d at 893-94. Internet postings and e-mail are still further removed. And they are

certainly not—as the amicus concedes they must be—in the court’s “actual presence.” Jafree,

741 F.2d at 135. See supra pp. 8-12.

Second, the record fails to show an obstruction of justice. As shown in our opening brief

(at 33), the obstructions that this Court says will justify summary contempt occur in open court.

The amicus has no answer, except to say that “[n]one of these cases holds, let alone suggests,

that an orchestrated assault on the court’s computer and e-mail system, in violation of a clear

court ruling, does not justify direct criminal contempt proceedings.” Br. 41. Here too, however,

there was no “orchestrated assault” or “clear court ruling.” See supra pp. 4-8, 14-16. And even


19

if there had been, the judge could not certify that he “saw or heard the contemptuous conduct”

occurring “in [his]presence.” Rule 42(b).

Third, the record fails to show that Trudeau possessed criminal intent. In addressing this

issue, the amicus points only to Lowery, where this Court held that an evidentiary hearing was

not required because “the entire conduct constituting the alleged contempt was recorded in a

court reporter’s stenographic transcript.” Br. 39-40. But the judge there saw the contemnor first-

hand, and could gauge his intent by reading facial expressions and body language. 733 F.2d at

443-44. Here, nothing happened in open court. Rather, Trudeau broadcast on a commercial ra-

dio show and posted messages from the studio, prompting third parties to e-mail the court. And

“in cases like this, where the intention with which acts of contempt have been committed must

necessarily and properly have an important bearing on the degree of guilt and the penalty which

should be imposed, the court cannot exclude evidence in mitigation.” Cooke, 267 U.S. at 538.

By proceeding summarily, the court below violated this principle.

In short, Trudeau’s solicitation fails to satisfy any of the requirements of Rule 42(b).

B. Trudeau’s misconduct did not require an immediate criminal remedy.

Even assuming that Trudeau’s conduct otherwise satisfied Rule 42(b), this is not the kind

of “exceptional circumstance” that demands summary process. Historically, courts have applied

Rule 42(b) with care to exercise the “least possible power,” and “time must be of the essence.”

Opening Br. 30, 39. But Trudeau’s conduct did not require an “immediate criminal remedy”—

all that was needed was an “immediate response.” Amicus Br. 41, 42 (emphasis added). Indeed,

in the amicus’ lone case involving e-mail, that is exactly what happened: The court warned the

e-mailer to stop, and he did. Br. 38 (citing Jackson v. Tennessee, 2006 WL 2370154, at *2 (E.D.

Tenn. Aug. 15, 2006)). That was all that was needed here.


20

The amicus cannot dispute that, once notified of the problem caused by his solicitation,

Trudeau immediately issued an unqualified apology and retraction. Instead, the amicus argues

that the court should not have had to say anything, because “Trudeau himself was cc’ed on most

of the emails, and thus knew precisely what was happening.” Br. 43. But as we have explained,

Trudeau thought the volume of e-mails at issue was akin to that in the Stewart and Madoff cases,

and it did not occur to him that federal servers could not handle that volume. Moreover, if the

court had requested Trudeau’s retraction earlier (when the court’s staff called Trudeau’s counsel,

who was unaware of the problem), the e-mails would have stopped even sooner. The court,

however, elected to keep Trudeau’s counsel in the dark until the next day.

That summary process was unnecessary is further confirmed by the court’s delay in sen-

tencing Trudeau. The amicus says this delay is irrelevant because the court “had already taken

decisive action.” Br. 44. But “[i]f a court delays punishing a direct contempt until the comple-

tion of trial, for example, due process requires that the contemnor’s rights to notice and a hearing

be respected.” Bagwell, 512 U.S. at 832. Thus, this Court rejects summary process where “the

district court elected post facto criminal contempt sanctions at a point where the disobedient

conduct had ceased.” Simpson, 885 F.2d at 398. That situation does not “fall[] within the nar-

row strictures of Rule 42[b].” Id.

In sum, no criminal remedy was necessary here. A timely civil cease-and-desist order

would have sufficed.


21

V. Any sentence of imprisonment is an abuse of discretion.

If the Court were to affirm the judgment, the “dark stain” of Trudeau’s conviction alone

would be punishment enough for his conduct. Mottweiler, 82 F.3d at 770. The amicus’ contrary

arguments are unpersuasive.3

The amicus says Trudeau failed to show remorse because he exercised his constitutional

right not to testify. Br. 45-46. But Trudeau cannot be punished for exercising this right, which

would have been waived had he exercised his right to allocution. United States v. Marshall, 719

F.2d 887, 892 (7th Cir. 1983). And in any event, as soon as he learned of his mistake, Trudeau

immediately, publicly, and unqualifiedly apologized for the resulting inconvenience—not merely

through counsel, but in his own name. App. 377. Thus, he is not attempting to minimize the se-

riousness of his conduct.

Moreover, context is important to intent. And in 2010, receiving 300 e-mails over a two-

day period is anything but unusual. Nor it is unusual for professionals to screen their e-mails,

whether by using filtering software or allowing an assistant to access their inbox. This is all the

more common in the case of public officials using e-mail addresses available on Google. That

Judge Gettleman did not typically receive that many e-mails, or filter them, did not require incar-

cerating Trudeau. Cf. Ocean-Oil Expert Witness, Inc., 2009 WL 1402495, at *1 (requiring con-

temnor who cursed at judge and hung up on telephonic hearing to pay fine and submit to anger

counseling).

Nor does the district court’s refusal to tell Trudeau’s counsel the reason for the February

11 hearing somehow support the sentence—as if Trudeau’s counsel should have discerned the

nature of the problem from a cryptic call from the court’s staff. Amicus Br. 46. Again, had the

3 Without citing authority, the amicus asserts that Judge Gettleman was not required to consider the 18 U.S.C. § 3553(a) factors in sentencing. But that view would permit entirely standard-less sentences.


22

court earlier informed Trudeau’s counsel of the reason for the hearing, the inconvenience to the

court could have been greatly diminished, if not eliminated.

In sum, any sentence of imprisonment here is an abuse of discretion.

CONCLUSION

For the foregoing reasons, and those stated in our opening brief, the decision below

should be reversed.


23

Respectfully submitted, ______________________________________

STEFFEN N. JOHNSON KIMBALL R. ANDERSON ANDREW C. NICHOLS THOMAS L. KIRSCH Winston & Strawn LLP Winston & Strawn LLP 1700 K Street N.W. 35 West Wacker Drive Washington, DC 20006 Chicago, IL 60601 (202) 282-5000 (312) 558-5600

Counsel for Defendant-Appellant Kevin Trudeau

MARCH 22, 2010


24

CERTIFICATE OF COMPLIANCE WITH FED. R. APP. P. 32(A)(7)

Pursuant to Fed. R. App. P. 32(a)(7), I, Kimball R. Anderson, an attorney, certify that I

have complied with the above-referenced rule, and that according to the word processor used to

prepare this brief, Microsoft Word, this brief contains 6,998 words and therefore complies with

the type-volume limitation of Rule 32(a)(7)(B) and (C).

DATED: MARCH 22, 2010

Kimball R. Anderson


25

CERTIFICATE OF COMPLIANCE WITH CIRCUIT RULE 31(E)

In accordance with Circuit Rule 31(e), the undersigned counsel certifies that I have filed

an electronic version of the Reply Brief in non-scanned PDF format. A digital version of Defen-

dant-Appellant’s Reply Brief has been uploaded to the Clerk of the Court.

DATED: MARCH 22, 2010

Kimball R. Anderson


26

CERTIFICATE OF SERVICE

I, Kimball R. Anderson, an attorney, certify that on March 22, 2010, I caused to be served

two true and correct copies of the foregoing Reply Brief, and one digital copy of the brief on

CD-ROM, via Federal Express, to the following:

Michael Mora Sandhya P. Brown

Elizabeth Tucci Laureen Kapin

Federal Trade Commission 601 New Jersey Avenue, NW Suite 2215 Washington, DC 20001 David O’Toole Federal Trade Commission 55 West Monroe Street, Suite 1825

Chicago, IL 60603 Gary S. Feinerman Sidley Austin LLP One South Dearborn Street Chicago, IL 60603 ______________________________

Kimball R. Anderson


in the united states court of appeals for the seventh circuit · no. 10-1383 in the united states...

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