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 conformed with the requirements of civil contempt. FTC v. Trudeau, 579 F.3d 754 (7th Cir. 2009).

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. 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.

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. As a result, the judge summarily found Trudeau guilty of criminal contempt and, a week later, imposed the 30-day sentence. We now consider whether Trudeau’s summary punishment for direct criminal contempt was a proper exercise of the district court’s authority.

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.

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.

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.

Federal Rule of Criminal Procedure 42(a) outlines the ordinary procedures necessary for a finding of criminal contempt. None of those procedures were followed in this case, because the judge proceeded under Rule 42(b), which allows for the summary punishment of direct criminal contempt.

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).

“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.  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.

“Accordingly, the Supreme Court has indicated that the 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

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.The narrow construction makes sense in this case.

Further, 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.

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.

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.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. 

In short,  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.

Here, 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 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.

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). 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).

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.

VACATED and REMANDED. 

For the full opinions visit the 7th Circuit Court of Appeals Web Site

For more about Chicago Criminal Defense Attorney Michael J. Petro, visit www.mjpetro.com.

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