In the

United States Court of Appeals

For the Seventh Circuit

No. 10-1383

FEDERAL TRADE COMMISSION,

Plaintiff,

v.

KEVIN TRUDEAU,

Defendant-Appellant.

Appeal from the United States District Court 

for the Northern District of Illinois, Eastern Division.

No. 1:03-cv-03904—Robert W. Gettleman, Judge.

ARGUED APRIL 8, 2010—DECIDED MAY 20, 2010

Before MANION, ROVNER, and TINDER, Circuit Judges.

TINDER, Circuit Judge. Kevin Trudeau was before us

last year, on appeal from a district judge’s order finding

him in contempt of court, fining him nearly $40 million,

and barring him from appearing in any infomercials

for three years. We found that the district judge properly

held him in civil contempt (he had violated the terms of

a consent order barring him from misrepresenting

the content of any of his books on TV) but remanded

the case so that the penalty he incurred for his contempt

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conformed with the requirements of civil contempt. FTC

v. Trudeau, 579 F.3d 754 (7th Cir. 2009). We expressed no

opinion on what his penalty should be but entrusted

it to the sound judgment of the district court.

Trudeau is before us again. This time he’s been

sentenced to thirty days in jail after he was found

in direct criminal contempt of court for his conduct during

the civil contempt proceedings. (We discussed the

difference between civil and criminal contempt in our

prior opinion in this case, id. at 769.) Trudeau, it seems,

exhorted his devoted radio audience to send e-mails on

his behalf directly to the court e-mail address of the

district judge presiding over his case; he posted the

radio broadcast on his web site, and followed it up with

an e-mail blast asking his e-mail list to send e-mails to the

judge. The district judge had not asked for any letters

and the judge had not (he thought) made his e-mail

address publicly available (it turns out Northwestern

University Law School had listed it on its web site;

the judge is an adjunct professor there). He was, therefore,

surprised to see e-mail after e-mail come pouring into

his inbox. He was also nervous. Most of the e-mails were

polite and enthusiastic (“If loving the values Kevin

Trudeau creates for society is wrong, I don’t wanna be

right!”), but some had threatening overtones (“Leave

kevin and his right to free spach alone. I wish carma

on your soul this very moment. may god touch you

today.” [sic throughout] and “More people than you

know are keeping a close eye on this case, not just the

special interests who will benefit from Kevin’s silence, but

every-day regular people. We know that if he can be

persecuted, so can we. We are awake to the tyranny

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No. 10-1383 3

We thank Gary Feinerman, of Sidley Austin, for his 1

exceptional service in this role. 

slowly and quietly creeping into our society. We are

watching.”). The judge alerted the marshal to the e-mails

coming to his account, and the marshal performed a

threat assessment to determine whether the judge was

in danger. The judge received over 300 e-mails within a

span of 36 or so hours.

Once the judge began to understand that all these emails were arriving at Trudeau’s behest, he summoned

Trudeau’s lawyer (and the lawyer for the FTC) into

court the next morning without explaining why. At that

morning’s session, the judge notified Trudeau’s counsel

that Trudeau could be facing a criminal contempt

sanction and ordered Trudeau to appear that afternoon.

He also instructed Trudeau’s counsel to have Trudeau

make the e-mails stop. Before he showed up later that

day, Trudeau sent an e-mail to his listeners asking them to

cease e-mailing the judge. Still, the judge summarily

found Trudeau guilty of criminal contempt and, a

week later, imposed the 30-day sentence. On Trudeau’s

motion we stayed the execution of the sentence and

expedited his appeal. The FTC officially took no

position on the criminal contempt judgment, and deferred

to the United States Attorney, who also did not take

a position. We, therefore, appointed an amicus to argue

on behalf of the contempt judgment. We now consider 1

whether Trudeau’s summary punishment for direct

criminal contempt was a proper exercise of the

district court’s authority.

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Trudeau argues that his conviction is defective on

both substantive and procedural grounds, and he does

so in that order. Substantively, he contends that his

conduct was not contemptuous, not punishable under

the criminal contempt statute, 18 U.S.C. § 401, and that

it was protected under the First Amendment. Procedurally,

he disputes the judge’s use of a summary procedure to

convict him of contempt. He also questions the

reasonableness of his sentence in the event that his

challenges to the conviction fail. We think it makes

the most sense to address the procedural aspects of

the contempt conviction first because by the very nature

of a summary proceeding at the district court, the record

before us is rather sparse. A more complete record

would be more appropriate for the full consideration of

his substantive arguments. As you will see, Trudeau’s

substantive concerns will, for the most part, require further

development. 

Federal law, 18 U.S.C. § 401, confers upon a court

the authority to punish by imprisonment “misbehavior of

any person in its presence or so near thereto as to

obstruct the administration of justice,” id. § 401(1), and

“disobedience or resistance to its lawful writ, process,

order, rule, decree, or command,” id. § 401(3). Conduct that

violates § 401 is a crime, and generally contemnors

are convicted through normal criminal process. See Int’l

Union, United Mine Workers of America v. Bagwell, 512

U.S. 821, 826 (1994). Federal Rule of Criminal Procedure

42(a) outlines the ordinary procedures necessary for a

finding of criminal contempt. None of those procedures

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No. 10-1383 5

were followed in this case, because the judge proceeded

under Rule 42(b), which allows for the summary

punishment of direct criminal contempt. (If you read the

older cases, you’ll notice that in the past 42(a)

described summary contempt procedures and 42(b)

described the standard process. These provisions were

rewritten and re-ordered in 2002. See Fed. R. Crim. P. 42

advisory committee notes to the 2002 amendments; In

re Contempt Order, 441 F.3d 1266, 1267 n.2 (10th Cir. 2006)).

A finding of direct contempt is appropriate only if

the criminal contempt occurred in the presence of the

judge and “the judge saw or heard the contemptuous

conduct and so certifies.” Fed. R. Crim. P. 42(b). Contempt

in the presence of the court “must be punished on the

spot to maintain the court’s authority.” Mann v. Hendrian,

871 F.2d 51, 52 (7th Cir. 1989). The use of the summary

contempt power is proper only for “charges of misconduct,

in open court, in the presence of the judge, which

disturbs the court’s business, where all of the essential

elements of the misconduct are under the eye of the

court, are actually observed by the court, and where

immediate punishment is essential to prevent

‘demoralization of the court’s authority’ before the public.”

Pounders v. Watson, 521 U.S. 982, 988 (1977) (per curiam)

(quoting In re Oliver, 333 U.S. 257, 275 (1948)).

The fundamental principle in contempt cases is that

the court must exercise the least possible power to the

end proposed. United States v. Moschiano, 695 F.2d 236, 251

(7th Cir. 1982) (citing United State s v. Wilson, 421 U.S. 309,

319 (1975)); see also Anderson v. Dunn, 19 U.S. 204, 231

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(1821). As applied to the direct contempt context, the

least possible power principle instructs that summary

disposition is proper only when “the express requirements

of the rule are met and when there is a ‘compelling

reason for an immediate remedy’ or time is of the essence.”

Moschiano, 695 F.2d at 251; see In re Jafree, 741 F.2d 133,

135 (7th Cir. 1984) (requiring that there be both a

compelling reason for an immediate remedy and time

is of the essence). If the literal requirements of the

summary disposition rule are met, we review the district

judge’s decision to impose it for an abuse of discretion.

Moschiano, 695 F.2d at 251-52. If there is an “explicit

determination that there was a compelling need for an

immediate remedy, we shall give appropriate deference

to that finding.” Id. at 252. But, “in light of the serious

potential for abuse of the summary contempt power . . .

we emphasize the special duty of an appellate court to

give careful and meticulous consideration to the trial

court’s decision that summary disposition is appropriate.”

Id.

 “The Supreme Court has said that [summary contempt]

is reserved for ‘exceptional circumstances’ ” which include

“acts threatening the judge or disrupting a hearing or

obstructing court proceedings.” Id. at 250 (citing Harris

v. United States, 382 U.S. 162, 164-65 (1965)). Absent those

circumstances, the judge should proceed under Rule 42a’s

procedures. See id. “[T]he power of summary contempt

is capable of grave abuse, and is properly regarded by

the courts with extreme disfavor.” Id.(citations omitted).

“Accordingly, the Supreme Court has indicated that the

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power of summary contempt is limited to cases in

which immediate punishment is essential to prevent

demoralization of the court’s authority before the public,

and that before the drastic procedures of the summary

contempt power may be invoked to replace the

protections of ordinary constitutional procedures there

must be an actual obstruction of justice.” Id. at 250-51

(citations and internal quotations omitted).

 The judge found the “presence” condition satisfied

in this case because he could read the e-mails on the court’s

computers (including the computer in the courtroom) and

his PDA which he carried with him so that he was “always

in communication” with the court. Neither finding is

sufficient to satisfy Rule 42’s “presence” requirement. We

resist the district court’s suggestion that the term

“presence” should be expanded to reach beyond the

judge’s actual, physical presence. While the Supreme Court

has held that “the court, at least when in session, is present

in every part of the place set apart for its own use, and for

the use of its officers, jurors, and witnesses; and

misbehavior anywhere in such place is misbehavior in the

presence of the court,” Ex parte Savin, 131 U.S. 267, 277

(1889) (finding that witness-tampering that occurred in the

jury room and court hallway occurred in the court’s

presence), the language of Rule 42(b) specifically requires

that the judge “saw or heard the contemptuous conduct,”

see Cooke v. United States, 267 U.S. 517, 535-36 (1925)

(distinguishing the contempt at issue in Savin with

contempt “under the eye or within the view of the

court”). This requirement indicates that the act itself

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must be committed in the judge’s presence; that its

effects are felt by the district judge is insufficient to

justify summary disposition. Pounders, 521 U.S. at 988

(recognizing that summary disposition is only appropriate

where “all of the essential elements of the misconduct

are under the eye of the court [and] are actually observed

by the court”); Cooke, 267 U.S. at 534. Expansion of the

term to encompass the “virtual presence” of the court

also runs afoul of the limiting principles indicated by

the Rule’s language and the contempt jurisprudence we

discussed above. See Moschiano, 695 F.2d at 250; cf. United

States v. Thompson, 599 F.3d 595, 600 (7th Cir. 2010)

(vacating the revocation of defendant’s supervised release

because defendant’s revocation was conducted via

videoconference); United States v. Lawrence, 248 F.3d 300,

304 (4th Cir. 2001) (vacating sentence where defendant

appeared via videoconference at sentencing hearing and

noting that “presence means physical presence”).

Furthermore, Rule 42(b) specifically limits the contempt

necessary for summary disposition to conduct in

the presence of the judge, while § 401(1) punishes both

conduct in the presence of the court and conduct “so near

thereto as to obstruct the administration of justice.”

Rule 42(b)’s omission of this latter category of conduct

convinces us that we should construe the term

“presence” narrowly in the context of summary

disposition. See Cooke, 267 U.S. at 536 (“When the contempt

is not in open court, however, there is no such right or

reason in dispensing with the necessity of charges and

the opportunity of the accused to present his defense by

witnesses and argument.”). 

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The narrow construction makes sense in this case.

Despite his statement that he relied on no extrinsic

evidence to find Trudeau in contempt, the judge had to

do research in order to figure out why he was getting

Trudeau’s e-mails. He (or his staff) went on Trudeau’s web

site, had his court reporter transcribe the broadcast, and

entered the e-mails, web site posting, and broadcast

into the record. (Furthermore, at the moment he found

Trudeau in contempt, the judge did not know where

Trudeau had gotten his e-mail address, and implied that

it had been obtained improperly: “I don’t know how he

would have gotten my e-mail address. I’m curious, at

least, and concerned about how that happened. It is not

a matter of public record.” A week later, when sentencing

Trudeau, the judge determined that the e-mail address

had actually been revealed through a simple internet

search.) This level of fact-finding renders summary

disposition improper: the justification for summary

process is that because he witnessed the contemptuous

conduct, the judge knows all he needs to know in order

to punish the defendant. Even if the external facts

determined by the court are uncontested, we are loath to

endorse a system where the only way a defendant can

avoid summary process is by denying these facts. This

would create a real Fifth Amendment concern by

essentially forcing the defendant to admit or deny

incriminating behavior before determining the process

to which he is entitled.

The judge put Trudeau in something of a bind,

for instance, when he said, “Let me just make something

very clear. I mean, I want to make sure that it’s

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clear. Mr. Trudeau concedes that he did, in fact, cause

these e-mails to be sent.” The context of the statement

makes clear that the judge was expecting Trudeau to

concede his guilt at this point (his lawyer diplomatically

refrained from doing so). But, under the summary

contempt procedure, there should be no need to put the

question to the defendant; the judge must have seen

or heard the contemptuous conduct. Here, relevant facts

had to be determined before Trudeau could be found

in contempt because the conduct occurred outside the

judge’s presence; it makes no difference if the judge

was absolutely convinced that he had uncovered

contemptuous conduct outside the courtroom through

his own investigation. Cooke, 267 U.S. at 538 (“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.”). Summary disposition

was an abuse of discretion.

Amicus presses the urgency of the situation the

district judge faced, which he says justified summary

punishment. We note that this argument assumes that

the contempt occurred in the judge’s presence, which we

reject. But underlying the argument is the idea that

increased urgency attenuates the necessity of actual

presence. This is worth addressing. See In re Troutt,

460 F.3d 887, 894 (7th Cir. 2006) (determining whether

contempt was in the presence of the court by examining

whether time was of the essence, a trial was being

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disrupted by the conduct, and whether any immediate

function of the court was threatened by the conduct).

Amicus emphasizes that the judge was compelled to ask

the marshal to undertake a threat assessment. As we

mentioned, some of the e-mails could easily be construed

as raising concerns about a threat to the judge (another

example: “You have sold your souls for power and wealth,

and eternal spiritual destruction awaits those who

condemn the righteous. May God be merciful to you,

and may He bless Kevin Trudeau always.”). But urgency,

while required to invoke summary contempt power, is

not sufficient to justify its exercise. There must be a

nexus between the urgency of the situation and the need

for immediate punishment. This required connection is

why, for instance, refusing to testify before a grand jury is

not subject to summary contempt procedures, Harris,

382 U.S. at 164, but refusing to testify during a trial is,

Wilson, 421 U.S. at 318; see also In re Grand Jury Proceedings,

875 F.2d 927, 933 (1st Cir. 1989) (“The rationale for

curtailing the usual criminal procedures in the event

of in-court contempt is that a court must be able to

maintain order to assure the integrity of court proceedings.

The same degree of urgency is not inherent in punishment

of contempts committed outside the presence of the

court, since out-of-court contempts do not disrupt the

judge’s handling of ongoing proceedings over which he

is presiding.”). For example, in what we could view as the

typical direct contempt case—an obstreperous litigant at

trial who will not heed the court’s instructions and brings

the trial to a halt—the need for the litigant’s compliance

in order to continue the proceedings is urgent; by the

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same token, there is an urgent need to punish the litigant

quickly so the proceedings may resume. 

But in this case, the need to preserve the court’s security

and the need to punish Trudeau summarily were not

closely linked. A finding, by itself, that the court’s security

procedures were implicated does not amount to

a finding that there was a “compelling reason” to

immediately punish Trudeau. The urgency required

for summary disposition is not merely that the conduct

itself created an emergency but that the need to punish the

conduct was so urgent that procedural safeguards should

be disregarded. The need for the court to conduct its

duties is the fundamental rationale underlying the court’s

summary contempt powers. Wilson, 421 U.S. at 316 (noting

that when conduct “disrupts and frustrates an ongoing

proceeding . . . summary contempt must be available to

vindicate the authority of the court” and remedy the

situation.). 

The record in this case is devoid of any suggestion

that Trudeau’s summary punishment was necessary to

restore the court’s ability to resume its duties. “No trial

was being disrupted by a failure to comply with a

court order.” Troutt, 460 F.3d at 894. And, while we

credit the judge’s determination that the e-mails

“imped[ed] [the court’s] means of communication and

caus[ed] the necessity of a threat assessment,” he

made no finding that immediate and summary punishment

for Trudeau was necessary to solve his communication

problems; in fact, Trudeau asked his followers to stop emailing the judge before he even got to court. See Wilson,

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421 U.S. at 319 (noting that summary punishment is

appropriate “to prevent a breakdown of the proceedings”);

see also United States v. Brown, 791 F.2d 577, 578 (7th Cir.

1986) (holding that summary punishment was appropriate

for “a serious interference with the process of justice”

defined as “obstreperous conduct” that brought the “trial

to a halt”). The judge found that Trudeau should not be

able to take advantage of the judge’s willingness to allow

him a chance to appear in court before finding him in

contempt in order to argue that summary contempt was

impossible. Cf. United States v. Griffin, 84 F.3d 820, 829 (7th

Cir. 1996) (noting that because a judge had the power to

use summary contempt procedures, the same judge could

adjudicate the case under notice-and-hearing procedures).

But because the conduct occurred outside the judge’s

presence and, rather than being forced to stop proceedings

by Trudeau’s behavior, the judge had to actually convene

proceedings in order to get Trudeau before the court,

summary contempt should never have been an option here.

This is not to say that there should be no consequence

for Trudeau’s actions, only that absent a compelling reason

for summary disposition, Trudeau is entitled to the

normal array of procedures under Rule 42(a). Wilson,

421 U.S. at 319 (“In an ongoing trial, with the judge, jurors,

counsel, and witnesses all waiting, [summary contempt]

provides an appropriate remedial tool . . . . Where time

is not of the essence, however, the [standard contempt

procedures] may be more appropriate to deal with

contemptuous conduct.”); Jaffree, 741 F.2d at 135

(Unless time is of the essence and there is some

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“compelling reason for an immediate remedy. . . [a]ll

other contumacious conduct is indirect contempt.”). While

the e-mails surely impeded the court’s function, the

summary contempt finding was not tailored toward

resolution of the problem the e-mails caused. And, even

if this were a close case, the judge should have erred

“on the side of providing the procedural safeguards

assured by Rule 42(a).” Troutt, 460 F.3d at 894.

Because there was no compelling reason for the summary

disposition and the conduct did not occur in the court’s

presence, Trudeau’s contempt case did not warrant

summary disposition. Therefore, the “exclusive remedy”

for Trudeau’s conduct is found in Rule 42(a). S.E.C. v.

Simpson, 885 F.2d 390, 396 (7th Cir. 1989). Trudeau argues

that, as a matter of law, his conduct could not rise to the

level of criminal contempt because he was not “in [the

court’s] presence or so near thereto as to obstruct the

administration of justice” such that he did not violate

§ 401(1), see Nye v. United States, 313 U.S. 33 (1941). Nye, he

argues, poses a geographical limitation on, contemptuous

conduct, and he also argues that there is no evidence in the

record to support the notion that he either intended to or

actually did obstruct justice. The posture of the case,

however, makes it impossible to weigh his arguments; as

we discussed, the very nature of summary disposition is

that no separate fact-finding is required. This is also why

its use should be limited. Trudeau does not argue that our

consideration of the case is limited to the record relied on

by the district court or that further prosecution under

normal contempt procedures is somehow estopped by the

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judge’s choice to pursue summary contempt. He is

probably correct to avoid those arguments. See Troutt, 460

F.3d at 895 (reversing summary contempt disposition and

remanding for “a new contempt proceeding that complies

with the requirements of Rule 42(a)”); United States v.

Hawkins, 76 F.3d 545, 552-53 (4th Cir. 1996) (“Having found

that the trial court committed reversible error, we are of the

opinion that, rather than simply reverse [the defendant’s]

contempt conviction, the conviction should be vacated

and the matter remanded for further proceedings . . . .”);

cf. Lockhart v. Nelson, 488 U.S. 33, 38 (1988) (affirming that

remanding for a new trial after reversal on a procedural

error is consistent with the Double Jeopardy Clause).

Unlike many cases where the entire record of the

proceedings below constitute the evidence of contempt, all

of the conduct here occurred off the record; what we know

is based on what the district judge asked to include in

the record. The posture of the case once again illustrates

why this case was ill-suited for summary disposition. If

the case is referred for prosecution, Trudeau will be able

to put into the record his full defense. At that point,

whether his conduct violated § 401 will be adjudicated by

a fact-finder. 

Trudeau also argues that soliciting e-mails on his

own behalf was protected conduct under the First

Amendment, and that any alternative basis for the

imposition of criminal contempt (say, under § 401(3) for

violating a court order—in this case, the court’s decision

to keep discovery closed) is impermissible. But we

express no opinion on these arguments; we don’t know

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whether prosecution of Trudeau for his e-mail-related

conduct will be resumed in the district court pursuant to

Rule 42(a) procedures. But if so, arguments about

whether his conduct was contemptuous or protected by the

First Amendment should be made in the first instance at

the district court and on a more complete record than we

have here. 

Accordingly, we vacate Trudeau’s sentence and the

district court’s finding of contempt, and remand for further

proceedings according to 18 U.S.C. § 401, Fed. R. Crim. P.

42(a), and this opinion. If the district judge chooses to

continue with the criminal contempt proceedings and

refers Trudeau’s case to a prosecutor under Rule 42(a),

Circuit Rule 36 shall apply to the adjudication of the

criminal contempt charge only. See Cange v. Stotler & Co.,

913 F.2d 1204, 1208 (7th Cir. 1990). The underlying civil

contempt litigation is still pending in the district court and,

as far as we are concerned, is unaffected by this opinion.

See Johnson v. Cherry, 422 F.3d 540, 556 (7th Cir. 2005).

VACATED and REMANDED.

5-20-10

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