Trudeau Criminal Case Documents 109 Thru 125 10 22 Thru 11 01 13 PDF

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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

UNITED STATES OF AMERICA

v.

KEVIN TRUDEAU

No. 10 CR 886

Judge Ronald A. Guzmn

GOVERNMENTS MOTION TO RECONSIDER RULING RELATING TO
CROSS-EXAMINATION OF DEFENDANT
The Court has ordered the government to disclose to the defense and the
Court, one week before trial, a list of questions the government intends to ask
defendant on cross-examination relating to his negative or disparaging statements
about the government, and his personal opinions and feelings about the
government. Such a disclosure is inappropriate and unfair to the government, and
the Court should reconsider its ruling.
1

The defense has made no commitment about whether defendant will testify,
or, if he testifies, what his testimony will be. In these circumstances it is unfair to
require the government to disclose to the defense and the Court, a week before trial
begins, what questions the government will ask if defendant testifies. There is
nothing improper (or even particularly controversial) about asking defendant
whether, at the time of the contempt, he held certain beliefs that show his motive
and intent to violate the court order, particularly when defendant has already
espoused these beliefs repeatedly and in public. There is no need to take the

1
The government does not object to the Courts requirement that the government disclose
to the defense a week before trial material covered by Federal Rule of Evidence 608(b).
Case: 1:10-cr-00886 Document #: 109 Filed: 10/22/13 Page 1 of 5 PageID #:714
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unusual step of requiring the government to disclose cross-examination questions
on this topic.
One of the main defenses in this case will be that defendant did not violate
the court order willfully. Therefore, the most important issue at trial will be
defendants state of mind, including his motive and intent. The defense has
indicated that it will present evidence and argument that defendant tried diligently
to comply with the court order, that he was motivated to comply with the court
order, and that he had no reason to violate the court order. The government should
be permitted to present evidence that defendant believed he should not be bound by
the court order, because he did not respect the court system that issued the order,
because he opposed the government agency (the FTC) that sought the order, or
because he viewed himself as a dissident who was justified in engaging in civil
disobedience.
Such evidence of defendants state of mind at the time he violated the court
order is not evidence of a crime, wrong, or other act governed by Federal Rule of
Evidence 404(b); it is direct evidence of defendants motive and intent in committing
the crime with which he is charged. Defendants belief, for example, that he is
comparable to Rosa Parks, is not evidence about his character or about whether he
is a bad or unlawful person. It is simply evidence that defendant was willing, and
perhaps even eager, to violate the law. In other words, it is direct evidence of
defendants motive, his intent, and his state of mind when he committed the crime.
Moreover, defendant has expressed these and similar beliefs repeatedly, loudly, and
3

in public, including on his website, radio shows, books, and infomercials. Having
broadcast these beliefs to as large an audience as he was able, defendant cannot
now claim that it is unfair for the jury to hear them.
In the pretrial conference on October 15, 2013, this Court provided guidance
about whether defendants beliefs are relevant topics for cross-examination. As the
Court indicated, those beliefs are relevant if a reasonable jury could conclude that
they show that defendant lacked respect for the court or government that issued the
order, or they reveal defendants belief that he should not be required to follow the
law. The Court also noted that the defendant must have held these beliefs close to
the time the contempt occurred.
At trial, if defendant testifies, the government intends to ask him if he held
beliefs that fall into the categories described above. If he answers truthfully that he
did, that will be the end of the matter. If he lies and says he did not, the
government will impeach him with prior inconsistent statements in which he voices
the beliefs in question. This is standard stuff, and there is no need for the
government to give the defense a list of each such question a week before trial.
Providing such a list will prejudice the government and impair the jurys
ability to find the truth. Defendant has been found in contempt of court at least five
times. The Seventh Circuit concluded that in The Weight Loss Cure infomercials,
defendant clearly misrepresented the books content, loaded his infomercials
with statements that are patently false, outright lied, made blatant
misrepresentations, and repeatedly distorted the content of the book. FTC v.
4

Trudeau, 579 F.3d 754, 757, 766, 767, 768 (7th Cir. 2009). Judge Gettleman has
noted that, Trudeau has little credibility with this court. Based on his demeanor
and conduct, the court has found, and continues to find, that Trudeau cannot be
trusted. Memorandum Opinion and Order, 4/16/10, 03 CV 3094, Dkt. 335. As
recently as October 22, 2013, six years after Judge Gettleman first held defendant
in contempt for The Weight Loss Cure infomercials, Judge Gettleman ordered
Trudeau to be incarcerated based on his failure to cooperate with, and deception of,
the receiver appointed by the court in the civil case. 03 CV 3094, Dkt. 772.
If the government is forced to give the defense a list of cross examination
questions a week before trial, it will only give defendant the opportunity to craft
elaborate explanations in an effort to mislead the jury. There is no need to give the
defendant a week to consider whether and how to acknowledge beliefs that he has
stated publicly and repeatedly for the world to hear. The effect of such a ruling will
simply be to enable defendant to hide the truth from the jury.
At the pretrial conference, defense counsel raised the specter of objecting to
every question the government asks on cross-examination, grinding the trial to a
halt. The Court should not reward this threat by requiring the government to give
the defense a blueprint of the governments cross-examination strategy. If the Court
were to require the defense to disclose, a week before trial, an outline of the direct
examination of the defendant, this would clearly be improper. It is no more proper
to require the government to do the same for its cross-examinationin a case where
defendant has not yet testified, or even disclosed whether or not he will.
5

If the Court is concerned about weeding out improper questions before trial,
the government suggests that it submit to the Court ex parte a list of potential
cross-examination topics with respect to defendants negative or disparaging
statements about the government, and his personal opinions and feelings about the
government. But the Court should not require the government to disclose its cross-
examination to the defendant a week before trial.
CONCLUSION
For these reasons, the government asks the Court to reconsider its ruling of
October 15, 2013, which required the government to disclose to defendant questions
the government intends to ask defendant on cross-examination relating to
defendants negative or disparaging statements about the government, and his
personal opinions and feelings about the government.
Respectfully submitted,

GARY S. SHAPIRO
United States Attorney

By: /s/ Marc Krickbaum
APRIL M. PERRY
MARC KRICKBAUM
Assistant United States Attorneys
219 South Dearborn Street
Chicago, Illinois 60604

1
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

UNITED STATES OF AMERICA, )
)
Plaintiff )
) Case No. 10-CR-886
v. )
) Honorable Ronald A. Guzman
KEVIN TRUDEAU, )
)
Defendant )
____________________________________)

DEFENDANT KEVIN TRUDEAUS MOTION TO EXCLUDE THE
GOVERNMENTS PROPOSED DIETICIAN EXPERT

Defendant Kevin Trudeau hereby requests that the Court exclude the testimony of
the governments proposed expert, Melissa Dobbins. According to the government,
Dobbins will be called to testify that in her expert opinion as a registered dietician, the
weight loss protocol described in Mr. Trudeaus book The Weight Loss Cure is not
effective, not advisable, and not recommended. This Court has already ruled that
evidence about the effectiveness of the diet protocol is irrelevant to the issues to be
decided at Mr. Trudeaus criminal trial. In light of that ruling, the Government cannot
have it both ways and bar the defense from introducing evidence of the diets
effectiveness while seeking to have its expert opine on that very issue.
The principal issue at trial is whether or not Mr. Trudeau willfully violated the
September 2, 2004 Stipulated Final Order (the Order) by misrepresenting the content of
his books in infomercials. The Order preserves Trudeaus First Amendment right to
author books on any topics he chooses. The Order does not require that Trudeaus
2
writings be agreed upon by general consensus, mainstream, popular, true, accurate or
correct. What the Order does require is that Trudeau not misrepresent the contents of his
books in his infomercials. Dobbins proposed testimony does not offer any information
on this topic and, as such, should not be permitted in this case.
I. The Governments Proposed Expert Seeks To Opine That The Diet
Described in the Weight Loss Cure Book Is Not Effective And Is Not
Scientifically Advisable or Recommended

The government wants to ask Ms. Dobbins to opine, among other things, on what
the serving sizes and portions look like for a diet of 500 calories a day and how the
recommendations in The Weight Loss Cure book compare with standard
recommendations for serving sizes issued by the United States Department of
Agriculture, the Academy of Nutrition and Dietetics, and other similar entities. (See
Exhibit A). The government would also ask Ms. Dobbins to describe how the breakfast
described in phase 2 of The Weight Loss Cure compares to standard recommendations for
serving sizes and calories. Ms. Dobbins would also be asked to illustrate for the jury a
serving size of 100 grams of protein, a serving size of a handful of organic vegetables,
and a serving size of a small apple and how these amounts compare to standard
recommendations for serving sizes and calories. The government further seeks to elicit
from Ms. Dobbins the types of ingredients and the cost of the actions described in
sections 2, 3 and 4 of The Weight Loss Cure book. Finally, the government seeks to have
Dobbins testify about the method for obtaining the HCG described in The Weight Loss
Cure book and its status with the FDA and other authorities on weight loss.
Each and every aspect of Dobbins proposed testimony is aimed at establishing
that the weight loss protocols set forth in The Weight Loss Cure book are ineffective, or
3
not advisable based on standard dietary guidelines. For the reasons set forth below, this
proposed testimony is contrary to this Courts prior order barring evidence on the
effectiveness of the diet protocol and is irrelevant to the issue the jury will be asked to
decide, namely, whether Trudeau misrepresented the contents of his book, The Weight
Loss Cure in infomercials.
II. This Court Has Already Ruled That Evidence Concerning the Diet
Protocols Effectiveness Is Irrelevant

The government already filed a motion in limine seeking to prevent Trudeau from
introducing evidence about the effectiveness of the diet protocol. (D.E. 83.) In their
motion, the government stated, whether or not the diet described in the book is good or
bad or helpful or unhelpful does not add to the jurys determination of whether defendant
accurately described his book in the infomercialswhether the diet contained in the book
is effective [is] irrelevant. Id. at 5. At the October 15, 2013 pre-trial conference, the
Court granted the governments motion and held that testimony about the effectiveness of
the diet protocol was irrelevant and would not be admitted at trial.
Now, in an apparent about face, the government seeks to ask Ms. Dobbins to
opine that the diet protocol is ineffective and does not comport with standard dietary
recommendations. However, the government cannot have its cake and eat it too. If it is
irrelevant for Trudeau to offer evidence on this point, it is equally irrelevant for the
government. Ms. Dobbins proposed testimony should be excluded.
III. Ms. Dobbins Proposed Testimony Is Irrelevant To Whether Trudeau
Misrepresented the Contents of His Book in Infomercials

The Order that is the subject of this case clearly provides that Trudeau did not
give up his First Amendment right to express his thoughts and opinions in the books he
4
authors. Specifically, Section XI of the Order provides, with the exception of any
waiver in connection with Parts I-X herein, nothing in this Order shall constitute a waiver
of Defendants right to engage in speech protected by the First Amendment of the
Constitution of the United States. (Order, p. 14) Both Parts I and II of the Order, which
contain the chief substantive provisions limiting Trudeaus future activities, contain
specific carve-outs protecting Trudeaus ability to sell books using infomercials provided
that he did not misrepresent the content of the book.
It is undisputed that Trudeau was not forbidden from writing books even if the
topic of the book was something deemed to be wrong or scientifically incorrect from
dieticians such as Dobbins. Rather, the Order was aimed at preventing Trudeau from
misrepresenting the contents of his books in infomercials. That is, as long as the
infomercial did not misrepresent the content of The Weight Loss Cure book, Trudeaus
opinions however scientifically incorrect or objectionable from the standpoint of
dieticians like Ms. Dobbins did not violate the Order.
As noted above, the government intends to ask Ms. Dobbins to opine on whether
the diet protocol is effective, advisable and whether it comports with standard dietary
recommendations. Whatever one might conclude about these positions, they are
irrelevant to whether or not Trudeau willfully violated the Order by misrepresenting the
content of his books in infomercials. Because Dobbins proposed testimony has no
bearing on this topic, it is irrelevant to the issues to be decided in the trial of this case and
should not be permitted by the Court.

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CONCLUSION
WHEREFORE, Trudeau requests that the Court rule that the government may not
call Melissa Dobbins as an expert to provide the opinions set forth in Exhibit A.

Dated: October 22, 2013 Respectfully submitted,
KEVIN TRUDEAU
By: /s/ Thomas L. Kirsch II
One of His Attorneys

Kimball R. Anderson (kanderson@winston.com)
Thomas L. Kirsch II (tkirsch@winston.com)
Katherine Rohlf (krohlf@winston.com)
WINSTON & STRAWN LLP
35 West Wacker Drive
312-558-5600
6
CERTIFICATE OF SERVICE

I, Thomas L. Kirsch II, an attorney, hereby certify that on October 22, 2013, I
caused to be served true copies of DEFENDANT KEVIN TRUDEAUS MOTION TO
EXCLUDE THE GOVERNMENTS PROPOSED DIETICIAN EXPERT, and
accompanying exhibit by filing such documents through the Courts Electronic Case
Filing System, which will send notification of such filing to:
Marc Krickbaum
April Perry
United States Attorneys Office
Suite 500
/s/ Thomas L. Kirsch II
Thomas L. Kirsch II
Attorney for Kevin Trudeau


Exhibit A
Case: 1:10-cr-00886 Document #: 110-1 Filed: 10/22/13 Page 1 of 9 PageID #:725

EASTERN DIVISION

Plaintiff, )
) Case No. 10-CR-00886
v. )
KEVIN TRUDEAU, )
Defendant. )
____________________________________)

NOTICE OF MOTION

TO: Marc Krickbaum
April Perry
Suite 500
Chicago, IL 60604

PLEASE TAKE NOTICE that the undersigned will appear before the Honorable
Ronald A. Guzman on October 28, 2013 at 10:30 a.m. in Courtroom 1219 in the Federal
Office Building, 219 South Dearborn Street, Chicago, Illinois, or before any judge sitting in
his stead, and present DEFENDANT KEVIN TRUDEAUS MOTION TO EXCLUDE
THE GOVERNMENTS PROPOSED DIETICIAN EXPERT, a copy of which has been
served upon you by the Courts electronic filing system.
By: /s/ Thomas L. Kirsch II__

Thomas L. Kirsch II
Winston & Strawn LLP
Chicago, IL 60601
Phone: 312-558-5600
Facsimile: 312-558-5700

Attorney for Defendant Kevin
Trudeau



I, Thomas L. Kirsch II, an attorney, hereby certify that on October 22, 2013 I caused to
be served true copies of the above Notice of Motion by filing such document through the Courts
Electronic Case Filing System, which will send notification of such filing to:

Marc Krickbaum
April Perry
Suite 500
Chicago, IL 60604

Thomas L. Kirsch II

Attorney for Defendant Kevin Trudeau

EASTERN DIVISION


v.

KEVIN TRUDEAU

No. 10 CR 886


GOVERNMENTS MOTION TO PRECLUDE COURSE OF DEALING
CONDUCT BETWEEN DEFENSE COUNSEL AND THE FTC
On September 6, 2013, the government filed a motion to preclude prior good
acts, including defendants prior acts of compliance with portions of the district
courts order that did not involve representations regarding books in infomercials.
Doc. 87. Defendant responded that his efforts to comply with the order in its
entirety were relevant. Doc. 95 at 11. At the pre-trial conference on October 15,
2013, this Court ordered defendant to tender to the government course of dealing
evidence that it would seek to admit at trial.
Pursuant to this Courts order, on October 17, 2013, the defense tendered to
the government a cover letter listing 35 items of correspondence between
defendants previous counsel and the FTC, and claimed that these were the items
defendant intended to introduce at trial to demonstrate the course of dealing with
the Federal Trade Commission (FTC) in an effort to comply with the September
2004 consent order.
1
The government objects to each of these 35 letters for the
reasons stated in its previous motion, and for the following additional reasons.

1
The cover letter as well as copies of all of the correspondence will be provided to the Court
separately for the Courts review. Individual letters referenced in this motion are labeled
2

I. The Letters are Inadmissible Propensity Evidence.

As the government has argued in its previous motions, the defendants prior
good acts and specifically, his attempts to comply or actual compliance with the
court order on other occasions are not relevant to this trial. The defenses intent to
introduce evidence of this nature is demonstrated by its own characterization of this
evidence as prior communications . . . in an effort to comply with the September
2004 court order. But whether the defendant attempted to comply, or even did
comply, with the order on numerous other occasions is irrelevant to whether he
purposefully violated the court order with respect to the infomercials for The Weight
Loss Cure. Any argument to the contrary is simply an argument that because
defendant complied (or tried to comply) in the past, he must have complied (or tried
to comply) on the occasions for which he is charged. This is a forbidden propensity
inference, and is no more admissible than the numerous examples of defendants
prior lack of compliance with this and other court orders (all of which the
government has agreed not to admit evidence regarding).
II. All of the Letters Should Be Excluded Because None Give
Defendant Assurances that The Weight Loss Cure Infomercials
Accurately Represented the Contents of The Weight Loss Cure
Book.

The letters are irrelevant because they do not establish what they are
supposed to establish: that defendant acted in good faith. None of the letters offer

by their number on the list provided in defense counsels cover letter (1 through 35).
Although the Court ordered the defense to provide copies of all the letters it intended to
introduce at trial by October 17, 2013, the cover letter states that Trudeau reserves the
right to disclose additional correspondence on which he intends to rely at trial by separate
letter. The government has received no separate letter to date.
3

defendant any assurance that his Weight Loss Cure infomercials comply with the
court order by accurately representing the content of the book.
First, none of the letters involve The Weight Loss Cure book or infomercials.
Because all of the letters instead involve other books, infomercials, letters, scripts,
or advertisements, they are simply irrelevant to this case.
2

Second, many of the letters do not involve the misrepresentation section of
the court order. Because this is the only clause of the court order that is relevant to
this case, letters that do not involve the misrepresentation clause should be
excluded as irrelevant. See, e.g., letter #16 (approving promotion of seven books, but
stating that the FTC is assuming that any promotions for these publications
accurately convey the content of the publications, [and] do not mislead consumers as
to the content therein); 26; 27; 29; 30; 32.
Third, even the letters that do involve the misrepresentation clause
repeatedly inform defendant that he is in fact violating that section of the court
order. See, e.g., letter 7 (it also appears there are a few statements in the
infomercial that do not accurately describe the content of the book); 13 (noting the
FTCs substantial concerns with various false statements in scripts for Natural
Cures commercials); 15 (pointing out a false statement and false impression in a

2
The Seventh Circuit has already concluded that the course of dealing conduct with
respect to the Natural Cures book and infomercials is irrelevant, stating that the FTC did
not object to the Natural Cures infomercial is largely irrelevant. FTC v. Trudeau, 579 F.3d
754, 767 (7th Cir. 2009). The Court noted that [n]othing about the FTCs prior approval
should have led defendant to believe that The Weight Loss Cure infomercials complied with
the court order, and that [t]he extent to which Trudeau could reasonably rely on the FTCs
approval of the Natural Cures infomercial ended when Trudeau began uttering false
statements and quotes that mischaracterized the content of the Weight Loss Cures book.
Id. at 768.
4

proposed script); 17 (noting some statements in the following two paragraphs
strike us as potentially false and misleading, we suggest your client refer to our
previous correspondence on this issue and not falsely represent the issue, and the
following paragraph misrepresents what we have stated and what we envision as
acceptable); 33 (noting the FTCs concern that proposed commercials contain a
false statement about the content of the book and are permeated with this false
impression). The Court should require the defense to explain how the FTCs
repeated warnings to defendant that he was making false and misleading
statements about other books and materials aided in his determination that The
Weight Loss Cures infomercials were acceptable. Assuming the defense cannot offer
such an explanation, the Court should exclude the letters.
III. Communications From Defense Counsel Should Be Excluded
In addition to the general objections to all of the letters discussed above, the
government adds the following additional objection with respect to letters and
emails from defendants counsel. An astounding 27 of 35 pieces of correspondence
the defense seeks to admit involve statements by defendants lawyers David
Bradford and/or Daniel Hurtado. See letters # 3, 4, 5, 6, 8, 9, 10, 11, 12, 14, 15, 17,
18, 19, 20, 22, 23, 25, 26, 27, 28, 29, 30, 31, 32, 33, and 34. All of these statements
should be excluded.
First, to the extent the defense seeks to admit letters from his lawyers
regarding the defendants intentions or attempts to do anything, these letters are
inadmissible hearsay. None of these letters are statements of the defendant
5

regarding his own state of mind.
3
Thus, defendant would be asking this jury to
conclude that he intended to comply or attempted to comply with the court order
based upon the out-of-court statements of his attorneys. This means the statements
would be admitted for their truth. There is no hearsay exception that permits this
type of evidence.
4
Nor should there be: lawyers frequently insist their clients intend
to do many things that the clients may have no intention of doing and which never
actually happen.
Second, even if defendant claims that these letters and emails are admitted
not for their truth but rather for their effect upon him they are also
inadmissible. Defendant has consistently maintained that he will not be relying
upon the advice of his own attorneys. If defendant does not intend to rely upon or
open the door to advice his attorneys gave him, then he should not be entitled to
back-door this evidence by admitting his lawyers statements to third parties
during the course of litigation.
For example, letter #15 contains defense counsels opinion that a Natural
Cures advertisement accurately represents the content of the book. It is hard to
imagine how defendant would be allowed to admit such a statement for its effect
upon him and his view of what accurate representation means, without opening the
door to other things his lawyer may have told him on this topic. As an even more

3
Rule 803(3) provides a hearsay exception for a statement of the declarants then-existing
state of mind (such as motive, intent, or plan), but of course does not provide an exception
for a third-partys commentary upon some other persons intent or actions.
4
Although statements of an agent are admissible when offered against a party pursuant to
Rule 801(2)(D), there is no hearsay exception for statements of an agent offered by that
party.
6

egregious example, letter #10 is a letter from defense counsel to defendant directly
providing his attorneys understanding of the Federal Trade Commissions position
with respect to the infomercial that promotes your book Natural Cures. Why
defendant should be allowed to present just one letter from his attorney to him,
without opening the door to other advice his attorney gave him on this or similar
topics, is unclear. As yet another example, letter #28 contains 12 pages of defense
counsels legal opinions about the scope of the order and the defendants First
Amendment rights in connection with the order. In addition to the fact that this
Court has already ruled that the First Amendment cannot be raised during this
trial, defense counsels other assertions to opposing counsel as to the what the scope
of the order should be are similarly inadmissible.
Lawyers frequently take a position when dealing with opposing counsel as to
what their clients rights are or should be, but advise their clients to follow a more
conservative path. The defendant should not be allowed to testify that he took into
consideration his lawyers public advocacy on his behalf, but exclude all evidence
about the legal advice given to him privately by those same lawyers on those same
topics. If defendant was to claim that he relied upon his attorneys statements in
these letters, the government should be allowed to cross-examine the defendant
about any warnings or advice his lawyers provided to him directly on these topics. If
defendant persists in insisting that he does not intend to waive attorney-client
privilege, the letters should be excluded altogether.
IV. Letters After The Contempt Should Be Excluded As Irrelevant
7

Finally, defendant seeks to admit two letters that were sent more than two
months after the last of the infomercials aired. See letters # 34 and 35.
Letter # 34 is a letter from defendants counsel to the FTC stating that defense
counsel understands that the FTC intends to file a motion for a rule to show cause
and stating we are surprised that there has been no prior communications from the
FTC regarding any issues it has with respect to the advertising for the book The
Weight Loss Cure. Given defense counsels previous assurances to this Court that
the defense does not intend to admit evidence regarding the FTCs failure to inform
defendant earlier that he was in contempt, the inclusion of this letter is curious.
However, in any event, the letter authored long after the defendants contempt
occurred is irrelevant.
Letter # 35 is a letter from an ITV lawyer stating that ITV will comply with
Judge Gettlemans November 16, 2007 order to stop running Weight Loss Cure
infomercials even though that lawyer disagrees with the order. This letter was sent
months after defendant filmed the infomercials, was written by a lawyer for another
company, and defendant was not a party to the communication. It, and the opinions
of counsel it contains, are simply irrelevant.
For these reasons, in addition to the other grounds for exclusion previously
stated, these letters should be excluded.
CONCLUSION
Because none of the proffered letters establish defendants good faith, they
should be excluded as irrelevant. Moreover, the 27 letters that involve
8

communications from defendants counsel should be excluded as hearsay to the
extent that they are offered for their truth. To the extent that these 27 letters are
offered for their effect upon defendant, they should be excluded unless defendant
intends to waive attorney-client privilege on the topics discussed therein. Finally,
the two letters that post-date defendants contempt should be excluded on that
basis.


GARY S. SHAPIRO

By: /s/ April M. Perry
APRIL M. PERRY
MARC KRICKBAUM


EASTERN DIVISION


v.

KEVIN TRUDEAU

No. 10 CR 886


GOVERNMENTS RESPONSE TO DEFENDANT KEVIN TRUDEAUS
MOTION TO EXCLUDE THE GOVERNMENTS PROPOSED DIETITIAN
EXPERT
The Court should deny defendants motion to exclude the governments
expert witness, Dkt. 110, registered dietitian Melissa Dobbins. Defendants motion
is based solely on the mistaken idea that [a]ccording to the government, Dobbins
will be called to testify that in her expert opinion as a registered dieti[tian], the
weight loss protocol described in Mr. Trudeaus book The Weight Loss Cure is not
effective, not advisable, and not recommended. Dkt. 110 at 1. This statement is
false. Ms. Dobbins will not offer expert testimony about any of these topics, and the
motion to exclude her testimony is meritless.
On October 10, 2013, the government provided the defense with an expert
disclosure for Ms. Dobbins (attached to defense motion, Dkt. 110 as Exhibit A).
Nowhere does the governments disclosure indicate that Ms. Dobbins will opine
about whether the diet is effective, advisable, or recommended. The government
agrees that these topics are irrelevant, and that the Court should exclude testimony
about them from any witness. The government will call Ms. Dobbins for a very
different purpose: to help explain to the jury what is involved in the weight loss cure
2

protocol the book describes. This testimony will help the jury understand the
content of defendants book, which the jury must understand in order to decide
whether defendant accurately represented the content of the book in infomercials.
For example, in Phase 2 of the weight loss protocol described in the book,
readers are told to eat no more than 500 calories per day, including meals at lunch
and dinner that include only 100 grams of protein, a handful of vegetables, and a
small apple. Phase 3, as described in the book, forbids readers from eating starch,
sucrose, high fructose corn syrup, trans fats, and nitrates, among other
things. Phase 4, which the book says is for the rest of your life, contains many of
the same limitations as Phase 3, and imposes new limitations. Despite these
restrictions, defendant stated in infomercials that the protocol in the book is not a
diet, that it involves no portion control or calorie counting, that there is no food
deprivation whatsoever, and that after completing the protocol there are no
restrictions.
1

In order to know whether eating only 100 grams of protein for lunch and
dinner constitutes portion control, it would be helpful for the jury to know what
100 grams of protein isincluding what it looks like. In order to know whether
Phase 1s strict limitations on calories and serving sizes constitute a diet or
calorie counting, it would be helpful for the jury to know what 500 calories of food
looks like, and how this amount compares to the number of calories an average

1
In a letter dated October 16, 2013, the government sent the defense a list of the types of
misrepresentations defendant made in infomercials that the government will rely on at
trial. All of the types of misrepresentations discussed in this filing are listed in the letter.
3

person eats in a day. A lay person may have a dim understanding of concepts such
as 500 calories, or 100 grams of protein, but an expert can explain clearly and
concretely what these restrictions mean, and demonstrate what they look like, so
that the jurys understanding of the content of the book is based on facts, and not
the jurys potentially faulty imagination of what the book entails.
2
Similarly, in
order to know whether Phase 4 of the diet involves food deprivation or
restrictions, it would be helpful for the jury to fully understand what foods are off-
limits when a person follows the books instruction to eliminate ingredients such as
sucrose, high fructose corn syrup, trans fats, and nitrates. A registered
dietitian has expertise in these areas. And none of this testimony involves an
opinion about whether the diet is effective, recommended, or advisable.
As another example, the book states that in order to keep the weight off,
readers must or should use dozens of products, including liver, parasite, and heavy
metal cleanses; raw apple cider; organic virgin coconut oil; digestive enzymes;
probiotics; and pendants that neutralize electromagnetic frequencies, among other
things. Yet in the infomercials, defendant claimed that the weight loss cure protocol
is inexpensive, simple, that it involves only a few other little things, and that it
does not involve crazy potions, powders, or pills.
In order to decide whether these statements in the infomercials were
accurate, the jury is entitled to know what these products are, how to obtain them,

2
Research has shown that Americans often underestimate how many calories they
consume each day by as much as 25%. See WebMD, Portion Control and Weight Loss,
http://www.webmd.com/diet/control-portion-size (last visited October 24, 2013).
4

and how much they cost. Armed with this information, the jury can decide whether
the scores of requirements contained in the protocol are only a few other little
things, and are simple and inexpensive. This evidence is relevant and helpful to
the jury, and, again, has nothing to do with whether the diet is effective or
advisable.
In order to reach an informed verdict, the jury must understand the contents
of defendants book, which includes an understanding of what is entailed by the
weight loss protocol the book describes. The testimony outlined in the governments
expert disclosure and in this filing is relevant and will help the jury reach such an
understanding. This evidence has nothing to do with whether the diet contained in
the book is effective or advisable. To avoid any confusion on this subject, the
government suggests that the Court simply instruct the jury that whether the diet
is effective, recommended, or advisable, is not an issue for the jury to decide.

5

CONCLUSION
For the reasons set forth above, the Court should deny defendants motion to
exclude the governments proposed expert.


ZACHARY T. FARDON

By: /s/ Marc Krickbaum
APRIL M. PERRY
MARC KRICKBAUM


1
EASTERN DIVISION

)
Plaintiff )
v. )
KEVIN TRUDEAU, )
)
Defendant )
____________________________________)

DEFENDANT KEVIN TRUDEAUS OPPOSITION TO THE GOVERNMENTS
MOTION TO PRECLUDE COURSE OF DEALING CONDUCT WITH THE FTC

Defendant Kevin Trudeau respectfully moves this court to deny the Governments
motion to preclude evidence of Trudeaus course of dealing with the FTC because such
evidence is relevant and central to Trudeaus defense that he endeavored to comply with
and did not willfully violate the September 2, 2004 order (the Order).
I. Background
On September 6, 2013 the government filed a motion in limine to exclude what it
described as evidence of prior good acts, including Trudeaus course of dealing with
the FTC. (D.E. 87.) In that motion, the government conceded that Trudeaus dealings
with the FTC with respect to the misrepresentation clause of the order might be
relevant to demonstrate Trudeaus lack of willfulness. (D.E. 87 p. 2.)
Trudeau filed an opposition to the governments motion explaining that Trudeaus
course of dealing with the FTC is relevant to Trudeaus efforts to comply with the Order
and his lack of willfulness. (D.E. 95 at 11-15.) At the pre-trial conference on October

2
15, 2013, the Court ordered Trudeau to produce the course of dealing evidence he plans
to rely on at trial. Pursuant to the Courts order, Trudeau provided the government with
copies of 35 letters that it intends to introduce at trial to demonstrate his course of dealing
with the FTC and his efforts to comply with the Order. Many of these letters were on the
precise topic of Trudeaus efforts to comply with the misrepresentation clause of the
Order in other words, the very evidence that the governments original motion
conceded might be relevant to Trudeaus defense. (D.E. 87 p. 2.) The remaining letters
either involved both the misrepresentation clause of the Order and some other Order
related issues or implicated the misrepresentation clause indirectly.
On October 21, 2013, notwithstanding its prior admission of the relevance of this
evidence, the government filed another motion in limine seeking to preclude Trudeau
from introducing the entirety of this course of dealing evidence. For the reasons set forth
below and in Trudeaus earlier opposition brief (D.E. 95 at 11-15) this motion should be
denied.
II. Evidence Concerning Trudeaus Course of Dealing the FTC is Relevant
To Trudeaus Efforts to Comply With the Order And His Lack of
Willfulness

Evidence of Trudeaus course of dealing with the FTC is relevant to Trudeaus
efforts to comply with the Order. It is also relevant to his lack of willfulness, one of the
elements the government must prove to the jury. See U.S v. Raymond, 436 F. 2d 951,
953 (7th Cir. 1971) (noting that prior business experience and course of dealing is
relevant to a defendants knowledge and willfulness). As the government concedes,
[o]ne of the main defenses in this case will be that defendant did not violate the court
order willfully. Therefore, the most important issue at trial will be defendants state of

3
mind, including his motive and intent. (D.E. 109.) The letters Trudeau intends to
introduce will show that Trudeau was in constant contact with the FTC regarding his
efforts to remain in full compliance with that Order. He sought approval for various
actions, he took direction from the FTC, he asked for further FTC review, and he was
told, at times, that the FTC expected him to make his own judgments about the
interpretation of the Order. These contacts between Trudeau and the FTC are relevant to
Trudeaus motive and intent and specifically to whether or not Trudeau willfully violated
the Order.
1

All of the letters Trudeau seeks to introduce are relevant to his efforts to comply
with the Order and his lack of willfulness. This is true regardless of whether each letter
specifically deals with the Weight Loss Cure book or infomercials because all of the
letters involve Trudeaus efforts to comply with the exact same Order which Trudeau is
accused of violating. Moreover, all of the letters are from the period 2004-2007. This
entire period beginning with the entry of the Order in 2004 and ending in 2007 with the
airing of the last infomercial and the subsequent show cause order is relevant to
Trudeaus understanding of and efforts to comply with the Order. Indeed, in another
motion, the government argues that all of Trudeaus anti-government statements from the
period 2004 to 2007 are relevant to his alleged motive to willfully violate the Order. The
government cannot have it both ways. If Trudeaus statements from this period are
relevant to his motive, and state of mind, and alleged willfulness, so too are his dealings

1
The government mischaracterizes this course of dealing evidence as inadmissible propensity
evidence. This evidence is not being introducing evidence of a prior act to prove Trudeaus
character in order to show that on a particular occasion Trudeau acted in accordance with the
character. Rather, this evidence is being introduced to demonstrate Trudeaus state of mind and
his lack of willfulness. In any event, Rule 404(b)(2) provides that such evidence is admissible to
prove motive or intent.

4
with the FTC from the same period.
2
Indeed, his course of dealing with the FTC is even
more relevant than his so-called anti-government statements because his interactions with
the FTC relate directly to the Order at issue in this case. Similarly, Trudeaus efforts to
comply with the Order in its totality (i.e. not only the misrepresentation clause) are
relevant to give context and paint the full picture of Trudeaus course of dealing with the
FTC.
3

The government also asserts that two letters which were drafted contemporaneous
with the FTCs show cause motion and Judge Gettlemans order are inadmissible.
However, these letters are relevant for the jury to understand the full course of Trudeaus
dealings with the FTC. They are also relevant to Trudeaus lack of willfulness because
they show defendants surprise that he was being accused of violating the order and his
efforts to immediately comply with Judge Gettlemans ruling.
III. Communications With Attorneys Should Not Be Excluded
The government next claims that 27 of 35 course of dealing letters should be
excluded because they contain statements made by attorneys. The government first tries
to argue that such letters are inadmissible hearsay. This is incorrect because these
statements are not being admitted for the truth of the matter asserted, but rather for their
effect on Trudeau.
The government next argues that these 27 letters amount to a back-door attempt
to introduce advice of counsel evidence into the case. This argument is also unaviling.

2
Trudeau agrees that statements from the period 2004-2007 could potentially be relevant to his
state of mind, however, he reserves the right to object to these statements once the government
discloses them pursuant to this Courts order.

3
At the pre-trial hearing Trudeaus counsel indicated that they may be amendable to redacting
certain portions of these letters that the government takes issue with. However, to date the
government has proposed no such redactions.

5
Not one of the 27 letters to which the government objects as back-door advice of
counsel defense consist of Trudeaus counsel communicating a single thing to Trudeau,
or he to them. They consist, rather, of Trudeaus counsel communicating with the other
side, the FTC, on the precise topic of Trudeaus efforts to comply with the Order.
Trudeau does not seek to admit these letters to establish that his counsel advised that he
could run the infomercials regarding The Weight Loss Cure that are at issue in this case.
The letters are evidence of Trudeaus efforts to comply with the Order in the precise
period in which that compliance was relevant during the negotiation or pendency of the
order to the time Trudeau filmed the infomercials at issue in this case. This evidence
demonstrates that Trudeau lacked the requisite criminal intent, i.e. that he did not act
willfully. Courts are clear that it is perfectly permissible to reference an attorneys
involvement in a matter to demonstrate a lack of criminal intent. For example, in U.S. v.
White, the Second Circuit noted that a defendant is permitted to present evidence of an
attorneys presence and involvement in a matter to show the defendants lack of criminal
intent and that doing so neither equates to an advice of counsel defense nor waives
privilege. 887 F.2d 267, 270-271 (2d Cir. 1989).
CONCLUSION
WHEREFORE, Trudeaus course of dealing evidence with the FTC should not be
excluded because it is relevant to demonstrate his efforts to comply with the Order and
his lack of willfulness.
KEVIN TRUDEAU

6

312-558-5600

7

caused to be served true copies of Defendant Kevin Trudeaus Opposition to the
Governments Motion to Preclude Course of Dealing Conduct with the FTC, by
filing this document through the Courts Electronic Case Filing System, which will send
notification of such filing to:
Marc Krickbaum
April Perry
Suite 500
Thomas L. Kirsch II

1
EASTERN DIVISION

)
Plaintiff )
v. )
KEVIN TRUDEAU, )
)
Defendant )
____________________________________)

DEFENDANT KEVIN TRUDEAUS OPPOSITION TO THE GOVERNMENTS
MOTION TO RECONSIDER RULING RELATING TO
CROSS-EXAMINATION OF DEFENDANT

During the final pretrial conference held in this matter on October 15, 2013, the
Court ruled that the government must disclose, one week before trial, the specific
statements that the government intends to use during cross-examination to show motive
regarding criminal contempt, including any negative or disparaging statements Trudeau
may have made about the government. (Ex. A, Excerpts of 10/15/13 Tr. at 119:3-120:6;
see also 107:20-25.) This was the correct ruling because it provides this Court and the
defendant with notice of the issues that would need to be addressed prior to cross-
examination of the defendant, and it would allow the trial in this matter to proceed more
smoothly and efficiently. In addition, disclosure of these statements one week before
trial will not prejudice the government, as the government has already divulged the
content and its general strategy with respect to these statements. Therefore, the
governments motion to reconsider should be denied, and the government should be
ordered to disclose the specific statements that it intends to use during cross-examination
2
of Trudeau.
I. BACKGROUND
As noted above, this Court held a final pretrial conference in this case on October
15, 2013 to discuss and rule on issues relating to the parties pretrial motions in limine,
among other topics. Prior to the conference, Trudeau filed a motion in limine seeking to
exclude all public statements made by Trudeau which were anti-government in nature.
(Docket No. 89 at 5-6.) The government has indicated that it does not intend to introduce
these statements in its case-in-chief, but does intend to introduce them during its cross-
examination of Trudeau. (Ex. A at 96:2-11.) The parties and the Court agreed that any
anti-government statements made by Trudeau would only be potentially relevant to this
action if they were made during a limited time period (between 2004 through about
2007). (See id. at 101:19-24, 106:22-24; see also Docket No. 109 at 3.) The Court
correctly noted that it would not be possible to issue a blanket ruling on such statements,
and that the Court would need to know the precise language of these statements before
rendering a ruling (because, for example, the Court would need to assess the context of
the statement to determine relevance). (See Ex. A at 106:16-107:7, 107:16-19.)
As a result, and as acknowledged by the government it its motion, the Court
ordered the government to disclose any anti-government statements it intends to use
against Trudeau one week before the trial.
1
(Id. at 119:3-120:6.) The Court rendered this

1
The government argues repeatedly in its motion that it was ordered to disclose the
specific questions that it will ask Trudeau during cross-examination. (Docket No. 109 at
1 (The Court has ordered the government to disclose to the defense and the Court, one
week before trial, a list of questions the government intends to ask defendant on cross-
examination relating to his negative or disparaging statements about the government, and
his personal opinions and feelings about the government.).) However, it is Trudeaus
and his counsels understanding that the Courts ruling was that Trudeaus own specific
3
ruling despite the governments repeated arguments that it should not be forced to write
[its] cross-examination a week before trial. (E.g., id. at 104:21-23; 119:12-13.) The
Court clarified that the government was not expected to write its cross-examination a
week before the trial, but that it would need to disclose the specific statements and prior
acts the government intends to rely upon. (See id. at 119:3-9, 119:14-21.) The Court
made clear that disclosing such statements a week before trial would aid the Court, and
that the Court did not perceive any prejudice to the government. (See id. at 119:14-21
(So youre in no worse position than you would ordinarily be in had he been diligent in
seeking the information hes entitled to. Produce them.), 119:25-120:6 (So I don't see
any real disadvantage to the government. I see a great advantage to the Court with some
difficult issues.).)
II. ARGUMENT
The governments motion to reconsider should be denied for at least two reasons:
(1) disclosure of these statements will assist the Court in ruling on complicated issues at
trial, and (2) the government will not be prejudiced at trial.
A. Disclosure Of These Statements A Week Before Trial Will Assist The
Court And Lead To More Efficiency at Trial.

The disclosure of these statements a week before trial will greatly assist the Court
in ruling on these statements, and will allow the trial to run more smoothly and
efficiently. Specifically, counsel for Trudeau (if not made aware of the statements ahead

statements be disclosed to the defense rather than, as the government asserts, that they
must reveal the substance of their questions. (See Ex. A at 105:3-6 (discussing a list of
statements), 119:3-21 (requesting lists as to prior conduct).) It is unclear whether the
government objects to just the disclosure of these statements (rather than the precise
questions it intends to ask Trudeau). If it does not, then the governments motion is
moot.
4
of time) will be forced to object repeatedly during Trudeaus cross-examination. This is
not a threat, as the government unfairly states in its motion. Rather, it is a simple
reality that can be avoided if these statements are disclosed. Moreover, the Court has
already recognized that it cannot rule on these statements without knowing the precise
statements at issue, and that disclosure of these statements ahead of time will greatly
assist the Court. (Ex. A at 106:16-107:7, 107:16-19, 120:5-6 (I see a great advantage to
the Court with some difficult issues.).)
The government suggests that, if the Court insists on pretrial disclosure of the
statements at issue, that the government should only be required to disclose a list of
specific statements ex parte. (Docket No. 109 at 5.) First, the government has not cited
to any authority that would allow such an ex parte submission and, indeed, this Court
already rejected this request during the pretrial conference. (See, e.g., Ex. A at 119:10-
11.) Moreover, this proposed solution will not solve the underlying problem. Yes, the
Court will have the statements ahead of time, but the defendant will still need to object to
each cross-examination question asked by the government in order to determine what
statement the government intends to use (and to then argue the relevance and other
evidentiary issues pertaining to that specific statement). This process risks substantial
delays in the trial with the attorneys taking up issues at sidebar while the jury is in the
box waiting to proceed. The Court was correct in endeavoring to avoid this inefficiency
by requiring disclosure of the defendants own statements to the defense.
B. The Government Will Not Be Prejudiced By This Disclosure.
The government will not be prejudiced by the requested disclosure of information
in any way. For one thing, the government has indicated that there are many statements it
5
may use at trial during its cross-examination of the defendant. (See, e.g., 104:24-105:2,
105:12-18; see also Docket No. 109 at 2-3 (generally referencing statements from
Trudeaus website, radio shows, books, and infomercials).) As acknowledged by the
Court, if the government discloses all such statements as ordered by the Court, Trudeau
will have no way of knowing specifically which ones the government will use, both
because the government may cherry-pick which statements it uses and because the Court
will not yet have ruled on whether each statement is admissible. (See Ex. A at 120:1-5
(He wont know what the cross-examination is really going to be without my rulings.
And I think he can probably imagine all that you would intend it to be if you had free
rein. So I dont see any real disadvantage to the government.).) In addition, it is
Trudeaus counsels understanding that the government was not ordered to disclose
specific questions, so the government is free to strategize regarding the wording of its
examination.
Moreover, the government has repeatedly disclosed that it intends to use
Trudeaus anti-government statements and has indicated that the four specific statements
in Trudeaus motion in limine are actually quite good as far as content, indicating that
the statements the government intends to use are very close content-wise to the
statements Trudeau has already disclosed to this Court in his motion in limine. (Id. at
105:12-18.) The government has also already disclosed its strategy regarding these
statements. For instance, the government stated in its own motion that [a]t trial, if
defendant testifies, the government intends to ask him if he held beliefs that fall into the
categories described above. If he answers truthfully that he did, that will be the end of
the matter. If he lies and says he did not, the government will impeach him with prior
6
inconsistent statements in which he voices the beliefs in question. (Docket No. 109 at
3.) Therefore, there is no remaining mystery as to what the government intends to do
with these statements, or what the content of these statements will be. The only question
is whether the specific statements the government intends to use are admissible.
2
As a
result, there is no prejudice to the government if the government is ordered to disclose the
precise wording of the statements it intends to use.
Furthermore, any supposed prejudice to the government (we believe there is none)
is outweighed by benefit to the Court and to the efficiency of the trial. The government
should therefore be required to disclose these statements at least a week before trial in the
interests of efficiency.
C. Such Statements May Properly Fall Under Fed. R. Civ. P. 608(b), And
Therefore Must Be Disclosed.

Finally, the statements at issue in the governments motion may properly fall
under Federal Rule of Evidence 608(b), which the government has already agreed to
disclose a week before trial. (See Docket No. 109 at 1 n.1.) Specifically, the government
contends that these statements are direct evidence of the defendants motive and intent
in committing the crime with which he is charged. (Id. at 2; see also Ex. A at 103:20
(We view this as direct evidence of willfulness.).) In another words, the government
plans to use this evidence to establish an element of the crime of criminal contempt
(willfulness). Also, the government has indicated that it will use these statements to

2
The government also incorrectly argues that [i]f the government is forced to give the
defense a list of cross-examination questions a week before trial, it will only give
defendant the opportunity to craft elaborate explanations in an effort to mislead the jury.
Again, the only information the defendant seeks is the actual statements the government
plans to use (not specific questions). Moreover, the statements say what they say and no
amount of preparation by Trudeau will change that.
7
impeach Trudeau during his cross-examination (and therefore is using them to show lack
of truthfulness). (Docket No. 109 at 3.) As this Court knows, Fed. R. Evid. 608(b) states
that the court may, on cross-examination, allow [specific instances of a witnesss
conduct] to be inquired into if they are probative of the character for truthfulness or
untruthfulness of . . . the witness. Therefore, the Court may find that these statements
fall under Fed. R. Evid. 608(b). The government does not object to disclosing 608(b)
material to the defense a week before trial, which is yet another reason for the
governments motion to be denied.
III. CONCLUSION
WHEREFORE, Trudeau requests that the Court deny the governments motion
for reconsideration and order the government to disclose the specific statements that it
intends to use during the cross-examination of defendant Kevin Trudeau.

KEVIN TRUDEAU

312-558-5600
8

caused to be served true copies of DEFENDANT KEVIN TRUDEAUS
OPPOSITION TO THE GOVERNMENTS MOTION TO RECONSIDER
RULING RELATING TO CROSS-EXAMINATION OF DEFENDANT, and
accompanying exhibit by filing such documents through the Courts Electronic Case
Filing System, which will send notification of such filing to:
Marc Krickbaum
April Perry
Suite 500
Thomas L. Kirsch II


Exhibit A
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Nancy C. LaBella, CSR, RMR, CRR
Official Court Reporter
219 South Dearborn Street, Room 1222
(312) 435-6890
Nancy_LaBella@ilnd.uscourts.gov
1
IN THE UNITED STATES DISTRICT COURT
EASTERN DIVISION
)
Plaintiff, )
)
v. ) No. 10 CR 886
)
KEVIN TRUDEAU, ) Chicago, Illinois
) October 15, 2013
Defendant. ) 10:50 a.m.
TRANSCRIPT OF PROCEEDINGS - FINAL PRETRIAL CONFERENCE
BEFORE THE HONORABLE RONALD A. GUZMAN
APPEARANCES:
For the Plaintiff: HON. PATRICK J. FITZGERALD
BY: MR. MARC KRICKBAUM
MS. APRIL M. PERRY
Suite 500
(312) 353-5300
For the Defendant: WINSTON & STRAWN LLP
BY: MR. THOMAS LEE KIRSCH II
(312) 558-5600
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(Proceedings heard in open court:)
THE CLERK: 10 CR 886, United States of America v.
Kevin Trudeau.
MR. KRICKBAUM: Good morning, your Honor. Marc
Krickbaum and April Perry on behalf of the United States.
MR. KIRSCH: Good morning, your Honor. Tom Kirsch on
behalf of the defendant Kevin Trudeau, who is here in person.
THE COURT: Good morning.
So I think we have to probably go over some of the
motions in limine first. That would seem to make sense. And
it seems to me the longest and/or most difficult are going to
be the government's motions in limine. So let's start with
those.
You can sit down if you'd like.
MR. KRICKBAUM: Thank you, your Honor. I think I
will.
MR. KIRSCH: Thank you, your Honor.
THE COURT: To be clear, can we agree that the only
portion of Judge Gettleman's order that's really at issue here
is that Mr. Trudeau not misrepresent the contents of the book?
MR. KRICKBAUM: Yes, Judge.
MR. KIRSCH: Yes, your Honor. I agree with that to
the extent that that's the issue that the jury will be asked
to decide. The whole order though is relevant to show that
Trudeau did not willfully violate any portion of the order.
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to the FDA or the IRS or -- I don't know -- the FTC and
suggest to the jury that Trudeau has no respect for the court
system because he's criticizing the government, your Honor,
that would be -- I mean, I just -- I can't imagine that we
would live in a world like that where -- I mean, he does have
the right to free speech. And he should be able to criticize
the government.
And to the extent the government wants to use
specific statements and tie them to a specific reason that he
would have violated the court order in this case, I guess
that's a different discussion than the one that we're having
right now, which is just general anti-government statements
and saying, oh, anti-government statements made at some point
in the past on some topic that is not at all relevant to what
the jury is going to have to decide goes to show that the
defendant willfully violated a contempt order, which, by the
way, that he agreed to. I just -- your Honor, the whole trial
would be about that; and there would be days and days of
testimony and cross-examination about statements such as that
if the government were allowed to introduce that evidence.
And I guess -- I don't even know what statements
specifically the government would seek to introduce, and maybe
that's where this needs to go first.
MS. PERRY: Absolutely not, Judge. The idea that the
defendant could take the stand and then demand a list of items
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we intend to impeach him or show his bias with is absurd.
As Mr. Kirsch said, the only way this comes in is if
the defendant takes the stand. When the defendant takes the
stand -- which, by the way, I don't think is required; I think
we could put this on in our case-in-chief, but we don't intend
to. If he takes the stand, he will talk about all the reasons
that he did not willfully violate this court order, all the
things he tried to do to comply with it, all of the reasons he
wouldn't possibly have wanted to violate the court order. The
government has a right to cross-examine him about all the
reasons he possibly would.
If the jury doesn't believe these statements are
relevant -- and, by the way, we wouldn't be asking him
necessarily about the statements. We would be asking him if
this was his opinion. If he disagreed with that, we would
probably impeach him with the statements, and then he could
explain the context in which it was made. The idea that he
doesn't have the right to explain it, he can explain it as
best he can. And then it's the jury's job to decide whether
or not that's credible, whether or not his belief that he is
like Rosa Parks would influence his judgment in this case
about violating a court order.
All of this evidence is the heart of any evidence
when you're showing someone's intent. Rarely does the
government have such good evidence about a defendant's intent.
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Rarely does the government have contemporaneous statements
around the same time as the crime was committed where the
defendant is talking all about his opinions and feelings about
the person who he then went ahead and victimized in a certain
way. But we do have it in this case, and we should be allowed
to use it in this case.
THE COURT: Well, I can only rule, even
provisionally, on the issues brought before me. This
particular motion identifies, I think, essentially four
statements. First, the statement in which Mr. Trudeau says --
apparently he has a television show or some sort of a show.
MR. KIRSCH: Your Honor, it was -- this was the
first --
THE COURT: Radio show? Is it a radio show?
MR. KIRSCH: It was a radio show, your Honor. And,
by the way, this was on June 6th of 2013, which was years
after this case had been indicted and had absolutely nothing
to do with The Weight Loss Cure's infomercial. Nothing.
THE COURT: In that statement, he says, "I want to
talk about what's going on in America and my particular court
case because they are really one and the same. We see in
America something I have been talking about for the last three
to five years; and, that is, the United States government
becoming more obtrusive into our daily lives than ever
before." I don't know if that's a typo; if it was meant to be
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"intrusive" or not.
"But more importantly, our freedoms, our individual
liberties are being taken away. What has been guaranteed to
us under the United States Constitution is being trampled on
and thrown out the window. Ladies and gentlemen, I want to
talk about something that's very serious; and, that is, the
United States Constitution. The Bill of Rights is being
thrown out the window. We are becoming more and more of a
police state where the U.S. government continues to say they
can do anything they want."
Well, the first sentence in that paragraph says, "I
want to talk about what's going on in America and my
particular court case." Clearly he's talking about court
proceedings and his opinion that these proceedings are
becoming oppressive, violate our Constitution and are taking
away our civil liberties. A person who believes that has more
of a motive to resist or disobey a court order which takes
away some of his individual liberties than a person who
doesn't feel that way about the government. So there's
relevance there.
MR. KIRSCH: Well, your Honor, he --
THE COURT: It proves motive.
MR. KIRSCH: I'm sorry. If I could just -- he made
this statement, what, five years after he's alleged to have
violated the court order. So I don't -- I don't know how that
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could possibly be relevant to show willfulness five years ago
or whatever it was.
And when he's talking about "my particular court
case" --
THE COURT: It may not be temporally relevant, but
your first argument was that there's no context to these
statements; they could mean anything; and we would spend hours
placing them in context. As to the first statement, I find
there's more than sufficient context to indicate that the
meaning there is meaning that would form motive for violating
a court order.
The second statement, I'm not sure what that refers
to or even what it means. In the meaning itself, I don't
really see a great deal, if any, relevance.
The third statement, "I look this government right in
the eye and say, you want to put me in jail? Let's go to
court, baby."
Well, clearly we know what he's talking about. We
know which government. We know it's the U.S. government. And
we know what part of that government. There's only one part
of the government that puts you in jail, and that's this part
sitting right over here, the U.S. attorney's office or the
FTC, the IRS, FDA who can put you in jail for contempt of
court. So we know we're talking about these types of
proceedings at least. And he challenges the government that
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if you want to put me in jail, let's go to court. I think
that shows a definite resentment, a disenchantment with the
very agencies that are involved in this attempt to hold the
defendant in criminal contempt and, thereby, constitutes, in
terms of its meaning at least, some motivation to not comply
or to violate, refuse to comply with a court order.
MR. KIRSCH: Your Honor, can I comment on that
statement or --
THE COURT: You can comment when I'm done.
MR. KIRSCH: Yes, your Honor.
THE COURT: Paragraph number four, as I have it
separated, states, "For years oppressive government forces
have waged a relentless pursuit against Kevin Trudeau to
censor and control his freedom of speech. Kevin Trudeau needs
you to stand with him. Stand up for your constitutional
liberties and help him fend off the criminals in power trying
to silence and even jail advocates of free speech for talking
about the benefits of natural prevention, treatment, diet and
cures."
Apparently this was on a Kevin Trudeau home page of
some sort.
I think when you call the government oppressive, when
you call the criminals in power trying to silence me, you
evince a strong disagreement with what actually happened here,
which is an order silencing to a significant extent your
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client's ability to speak; and, therefore, that subject
matter, I think, is clearly subject matter which would
constitute -- can certainly be reasonably interpreted by a
jury to reflect a direct challenge to the government's
authority. And a willful violation of a court order would be
a direct challenge to the government's authority.
I don't see these statements as being general
character assassination. And I would allow them, if indeed
they are allowed, only for the purpose of showing motive. And
certainly there could be a court order to that effect. They
have sufficient evidentiary value in terms of their content to
prove probative as to motive. There's no issue that the
statements were made by the defendant. He admits it.
Statements one and two were apparently made about the
same time, in June of 2013. So that's six years after he
allegedly violated the court's order. Why would that be
relevant?
MS. PERRY: Judge, these four statements were picked
by the defense as examples. The government will confine
itself to statements that are closer in time to the period
that's relevant. So the court order was issued in 2004, and
then these infomercials were aired in 2007. So things that
either directly relate to the court order or that are around
that time frame are the ones that we're going to stick with.
They're not going to be these four statements probably. But
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there are lots of others of a similar ilk, and these are all
good representations of the types of statements.
One other one that we mentioned in our motion was the
constant refrain in the Natural Cures book which had the
theme, "I'm mad as hell and I'm not going to take it anymore"
with respect to the government. That Natural Cures book came
out after the court order was issued but was the book right
before The Weight Loss Cure book. So that would be the type
of time frame that we would be focusing on and similar in
content to these types of things about how angry he is with
the way the government has been treating him.
MR. KIRSCH: Your Honor, that is a total
mischaracterization of the "I'm as mad as hell and I'm not
going to take it anymore." And that's the problem. If I can
just -- well, anyway --
MS. PERRY: And, Judge, that's a jury issue. If the
jury believes that it's not in context and that there's a good
explanation for it, then they will find that the cross-
examination on that point is pointless.
MR. KIRSCH: But the problem is we can't explain.
That's the whole issue, your Honor.
THE COURT: Well, the real problem is that I'm
spinning my wheels here. I'm ruling on a motion to exclude
statements that the government says we're not going to use.
MR. KIRSCH: Right. I mean --
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MS. PERRY: But, Judge, these are --
MR. KIRSCH: That's why I asked for --
THE COURT: What am I doing here?
MS. PERRY: I think these do give good guidance. The
statements we're going to use are all just like this.
THE COURT: No. We're on the eve of trial. I really
don't want guidance. I want to make rulings that are likely
to actually impact the trial.
MS. PERRY: Judge, this will help us.
THE COURT: The little things, such as whether they
were made six months after or before the challenged conduct or
six years after are rather -- you know, statements made six
years after are not indicative of what I should be looking
at --
MS. PERRY: And we will not --
THE COURT: -- when doing a 404(b) comparison, which
you know has as one of its prongs whether or not the act was
committed sufficiently close to.
MS. PERRY: And, Judge, we don't actually view this
as 404(b). We view this as direct evidence of willfulness.
And the way the question would be asked on cross-examination
is, Did you believe this; and the answer is yes, no or
something else. If the answer is yes, we move on. If the
answer is no, then we impeach with it if he said relatively
close to that time frame that he believed it. And then the
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jury can decide, well, he said it three months later; it
doesn't matter or he said it three weeks later.
THE COURT: So you're going to ask him, Did you make
this statement?
MS. PERRY: Right.
THE COURT: Unless he says, yeah, I believe the
government is scumbags and I hated everything they were doing
and I was going to fight it --
MS. PERRY: Well, if he --
THE COURT: -- unless he says those things, you're
going to say, well --
MS. PERRY: It's impeachment.
THE COURT: -- didn't you say on such and such a
day --
MS. PERRY: Yes.
THE COURT: -- at such and such a time -- so you're
going to ask him these questions. So why don't you tell me by
Thursday --
MS. PERRY: Judge, that --
THE COURT: -- what questions you intend to ask him.
MS. PERRY: Judge, that is inappropriate to ask us
before he's even committed to testifying to highlight our
cross-examination questions.
Additionally, Judge, the man has written three or
four books, he's given dozens, if not hundreds, of radio
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shows. The amount of material that we need to go through to
be able to prepare the cross-examination --
THE COURT: Well, let me understand this. You're
saying you haven't decided -- you haven't done that and you
don't know which -- you don't have a list of statements you
can use?
MS. PERRY: Correct. I do not have the cross-
examination written three weeks before trial.
THE COURT: No, no. Do you have a list of statements
that you could use in cross-examining him on this particular
issue?
MS. PERRY: I can give you examples of statements,
but I will not have everything written out and thought out.
But these examples are actually quite good as far as content.
And I can tell you that content-wise, we'll stay the same.
And time-wise, we will stick between the time the court order
was contemplated and entered and the time that these Weight
Loss Cure commercials were running.
MR. KIRSCH: Your Honor, if I can suggest that what's
going to happen during the cross-examination is it will take
hours and hours at sidebar debating whether or not statements
such as these are admissible if the government doesn't
disclose them. For instance --
THE COURT: Assuming there's going to be a cross-
examination.
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MR. KIRSCH: Assuming there is going to be a cross-
examination. But to the extent -- I mean, first of all, the
defendant --
THE COURT: Is there going to be a cross-examination?
MR. KIRSCH: I don't know. The defendant -- but the
defendant --
THE COURT: You don't want to commit to that, but you
want me to commit them --
MR. KIRSCH: No.
THE COURT: -- to telling me what their cross-
examination will be.
MR. KIRSCH: No, no. All I want is guidance as to
whether statements like this will be admissible if he
testifies. Your Honor, the problem -- the problem with this
is --
THE COURT: Without having the statements, the only
guidance I can give you is that the Seventh Circuit has given
us an analysis to follow in determining whether or not such
statements should be allowed.
We should determine whether or not the statements are
directed towards establishing a matter in issue other than the
defendant's propensity to commit criminal conduct; whether or
not evidence of this other act, similar statement is close
enough in time to be relevant; whether or not there's
sufficient evidence to support a finding by the jury that the
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defendant actually committed the similar act or made the
statement; and, finally, the probative value of the statement,
which depends, of course, on the content of the statement,
which we, of course, don't know because we don't know what the
statements are. Okay. And the prejudicial effect, unfair
prejudicial effect, which, of course, also depends on the
content of the statement, which we don't know.
So --
MS. PERRY: And part of this too, Judge, the
prejudice and probative value will be related to the direct
examination and what the defendant says on direct examination
about his motives and intentions and what he did and did not
do to comply with the court order.
THE COURT: Okay.
MR. KIRSCH: Your Honor, can I just --
THE COURT: So the Court makes no ruling because it
just doesn't seem to make sense to rule on statements that may
be similar to the ones to be used but are not the actual
statements to be used.
However, if the defendant does testify, the
government will, before it commences its cross-examination
and, if possible, long before it commences its cross-
examination, produce a list of prior inconsistent statements
it intends to use, statements evincing motive to violate the
court's order in their exact form.
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MS. PERRY: And, Judge, we would be happy to do that,
and we will do that very shortly after we get a commitment as
to whether or not the defendant will be testifying.
MR. KIRSCH: Your Honor, what the government is going
to do on cross-examination will certainly guide the
defendant's decision as to whether to testify. So it's unfair
to require us to commit one way or the other and then allow
the government to say --
THE COURT: Let me see if I understand this
correctly. You're saying the only fair way to do it is in
every case to have the government tell the defense how they
intend to cross-examine the defendant if he testifies so that
the defendant can then decide whether or not he wants to
testify? Is that your argument?
MR. KIRSCH: Certainly not. But with respect to --
your Honor, I did -- I need 30 seconds to explain these
statements and to explain the problem with statements like
this.
Certainly in almost every single case where a
defendant has a prior conviction, there's a motion in limine,
as there is in this case, prior to the defendant testifying to
ask the Court whether or not the Court would allow the prior
convictions in evidence if the defendant testifies.
THE COURT: And in that case, you tell me exactly
what the prior conviction is, don't you? You tell me what --
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MR. KIRSCH: Yes.
THE COURT: -- it is for, you tell me when it
occurred.
MR. KIRSCH: Yes. So maybe, your Honor, it's --
maybe what the Court is suggesting -- and I'll take this up.
Maybe it's incumbent upon me to identify the statements to
which I object; to submit them to the Court and then the Court
can rule.
But, your Honor, if the Court would just indulge me.
I think we're almost to the end.
THE COURT: I thought that's what you had done.
MR. KIRSCH: It's not, but I will do that, your
Honor, because maybe it's my responsibility to do that and
I'll do that.
But, your Honor, the problem with allowing statements
like this, if you look at statement number one, which talks
about "my particular court case," and it's June 6th, 2013,
that is clearly referring to the court case in front of Judge
Gettleman.
Now, the defendant would not be able to explain that
statement without getting into the circumstances and facts of
the case before Judge Gettleman, which could, number one, be
irrelevant, number two, be prejudicial to the jury, number
three, result in a mini trial. So when he talks about "my
particular court case" -- and I guess this is incumbent
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upon -- I'll do this, your Honor. I will identify the
statements and I'll state the reasons for my objection.
THE COURT: Let's not spend any more time on it then.
Until you do that, there's really no --
MR. KIRSCH: Okay. I understand.
THE COURT: There just isn't any use. The government
can't tell me at this point what statements they're going to
use. They'll tell me as soon as your client hits the stand.
And you will then have an opportunity before your client is
cross-examined to argue to the Court whether those particular
statements should be allowed.
MR. KIRSCH: Yes, your Honor. Your Honor, I'll file
that before the trial starts because I -- to the extent that
the Court would indulge us, I'd like to get at least some
guidance on that prior to the defendant testifying on direct
examination.
THE COURT: Okay.
Let's see what else.
MR. KIRSCH: I think the second motion, your Honor,
is agreed.
THE COURT: Motion to exclude evidence and argument
of the civil contempt case?
MR. KIRSCH: Yes, your Honor.
THE COURT: Okay.
MS. PERRY: And, Judge, the second one is agreed,
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except to the extent he opens the door to such evidence with
character witnesses or his testimony or some other type of
situation like that. But certainly nothing in the
government's case-in-chief.
(Brief pause.)
THE COURT: Okay. You were speaking of Mr. Trudeau's
financial situation?
MS. PERRY: The only evidence the government plans to
admit about his financial circumstances are that at the time
he filmed these infomercials, the company that was both airing
the infomercials and distributing the book through direct
response sales owed him a hundred million dollars, a little
more than that, and that they were behind on payments.
MR. KIRSCH: Your Honor, that's entirely irrelevant
to whether or not he willfully misrepresented the content of
the book in the infomercial.
MS. PERRY: Judge, Mr. Kirsch has already told us
that he intends to present evidence that it was ITV who filmed
and produced the infomercials, who aired the infomercials and
who sold the book. To the extent the defendant had a
financial stake in those infomercials producing greater book
sales, it would be relevant.
MR. KIRSCH: Your Honor, there's a huge evidentiary
link that's missing between the first statement the government
made and the second statement the government made.
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The first statement is that Trudeau was owed money by
ITV. The second statement is that Trudeau had a financial
stake in the sales of the book. Unless the government can
bridge the gap between being owed money by a company and
having a financial stake in the sales of the book, the fact
that he was owed money by the company is irrelevant. The
government can't bootstrap in that way. They've got to be
able to establish an evidentiary link between being owed money
by one party, in this case ITV, and having a financial stake
in the sale of the book. If the two were totally unrelated,
the fact that he was owed money is irrelevant.
THE COURT: Well, are they unrelated?
MS. PERRY: ITV was selling the book.
MR. KRICKBAUM: The reason that ITV owed the
defendant money is because the defendant sold ITV the right to
sell The Weight Loss Cure book.
THE COURT: The question is: Who got the money from
selling the books from the infomercials? If I purchased one
of those books, who would the money go to?
MR. KIRSCH: ITV.
THE COURT: So then that would give ITV money with
which to pay your client what they owed him.
MR. KIRSCH: But I'm not sure that the government is
going to be able to establish that ITV owed him money. That's
the issue. I'm just not sure the government is going to be
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able to --
THE COURT: Now you're moving the target. You
started out saying that there's no link between the two
things. Now you're telling me you don't think the government
can prove one of the two things.
We've established, I think, the link which you were
arguing about before, which is that ITV owes your client
money. The sale of the books -- your client is shaking his
head, so we'll take that into consideration, Mr. Trudeau,
although I admonish you, that is not to go on during the
course of the trial. Understand that clearly, sir. I will
not hesitate to call that out in front of the jury, and it
will be very embarrassing to you if you do.
Assuming that ITV owed your client money, the fact
that ITV would make money from the sale of the books becomes
very relevant to your client because then they would have
money with which to pay him. That's the link between the two
things and provides a motive for your client wanting to make
sure that the infomercials were successful in gaining a lot of
money for ITV.
Now, your next objection now becomes what?
MR. KIRSCH: Well, your Honor, to -- I mean, this
is -- I guess the government's argument is that if they can
establish that ITV owed Trudeau money and if they can
establish that ITV was going to pay Trudeau money out of the
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sales of the book, then -- I guess then they're going to argue
that Trudeau wanted to misrepresent the contents of the book
to increase the sales of the book. But --
THE COURT: I think, before you go any further --
MR. KIRSCH: Sure.
THE COURT: -- you've added one extra step. I don't
think they want to establish that ITV intended to pay your
client anything. I think all they need to establish in order
to establish a logical, reasonable nexus is ITV owed your
client money; the sale of the books would have garnered ITV
money. From that, the jury can conclude that ITV would then
be in a better position to pay your client the rather
humongous sum of $100 million, if that, in fact, is what was
owed. So that's what they -- is that what you intend to
establish?
MS. PERRY: Yes, Judge.
THE COURT: That's what they intend to establish.
Go ahead.
MR. KIRSCH: Your Honor, first of all, motive
evidence is permissible, but courts exclude motive evidence
all the time; and this is the reason why: The government is
going to put in motive evidence and then argue that in order
to drive up sales of the book, Trudeau misrepresented the
content of the book and that was his motive.
Now, that's just, I guess, pure speculation. There's
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no evidence of that. It could be the exact opposite. So to
allow the government to argue from the fact that -- or to put
in evidence that ITV owed Trudeau money and from that ITV --
or Trudeau would have misrepresented the content of the book
to drive up sales of the book, we would have an argument on
whether or not Trudeau would want to accurately describe the
book to drive up sales of the book.
THE COURT: And that's a counterargument.
MR. KIRSCH: Yeah, I mean, I guess it is. But it's
just a silly argument. And that's the reason that courts
exclude motive evidence like this every day. I mean, it
just -- when you start talking about motive evidence like
this, this is where we run into problems because it's not
relevant to any of the issues that the government has to
prove. It's just motive evidence. And it's not very good
motive evidence. It's just not good evidence. And to allow
the government to put this in is creating an issue that
shouldn't be there in the first place.
THE COURT: I disagree. I think the desire for money
has been one of the oldest and most tried and proven motives
for criminal conduct that I can think of. Revenge, another
one. But money, that's why people rob banks. That's why
people commit frauds. That's why people sell dope. That's
why they sell guns. That's why they do all of these -- that's
why they kidnap others. The desire for money is one of the
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oldest motives triggering criminal conduct in existence. And
that's all this is, is showing that there is some motive here
for your client to believe that he would get money by
committing this criminal conduct. There's a link. And a
reasonable juror could conclude that that link helped to
motivate him to commit criminal conduct.
MR. KIRSCH: I guess, your Honor, my objection is
that the government can't establish that by misrepresenting
the content of the book, it provided him the opportunity to
make more money. That's the problem. So if they were just
going to say that he was owed money by ITV and, therefore --
you know, it's different than -- it's totally different than a
drug dealer selling drugs that's putting money in his pocket.
Here, it's totally different. It's saying he's going to
misrepresent the content of the book in order to drive up
profits. And that's where we get sort of far afield from the
motive evidence.
THE COURT: If the government's evidence is that your
client misrepresented the contents of the book in such a way
as to make the book seem less worthy than it was, then maybe
I'll actually sustain that objection when it comes time for
them to introduce that evidence.
However, if their evidence is that your client
misrepresented the contents of the book in order to make the
book seem more worthy than it really was, then it's clearly
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relevant and it will come in.
I see your point.
MR. KIRSCH: Well, we'll be --
THE COURT: We'll wait and see what the evidence
shows.
MR. KIRSCH: We'll be more informed on that on
Thursday when we get -- when we receive our list of what the
misrepresentations were.
THE COURT: What else do we have?
MR. KIRSCH: I think motion number four, your Honor,
is agreed.
And motion number five has to do with prior --
THE COURT: Four is -- I'm sorry. Four is --
MR. KIRSCH: Four is the 2004 civil contempt case
dealing with a product called Coral Coral Calcium. And there
are some caveats in what the government agrees, but they're
the same caveats in every case, which is if the defendant
opens the door to the issue, then --
THE COURT: Okay.
MR. KIRSCH: But that's sort of the problem with
these anti-government statements. I mean, some of these
statements were reflecting Coral Coral Calcium. And that's --
I guess I'll identify those statements. But that's the
problem.
But motion number five is just a motion to exclude
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the defendant's prior convictions. And the defendant's
position is that these prior convictions are inadmissible
under Rule 609. And I think the government's position is that
the underlying facts should be admissible under 608. And,
your Honor, my argument to that is, that would -- 608 would --
there would be no reason for 609 if that was the rule.
And, Judge --
THE COURT: I'm pretty sure that's so.
MS. PERRY: And, Judge, just so the government's
position on this is clear, at this point we don't intend to
introduce the convictions. Of course, his testimony on direct
examination could open the door if he was to talk about how
lawful of a life he's lead or anything of that ilk. I don't
expect him to.
And with respect to the 608(b), there was a lot of
fraudulent conduct and false statements that accompanied these
cases. Now, there's also a lot of fraudulent conduct and
false statements in his background generally. So I'd ask for
the Court's indulgence on this, the same as with these
statements, unless Mr. Kirsch can highlight for me the
statements that he objects to. We will compile at some point
before trial and probably during trial a list of the 608(b)
prior acts of untruthfulness, fraud, false statements that we
intend to use on the cross-examination. When it becomes clear
that he is going to testify and he starts testifying, I will
1
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119
have put together by then a list of any false statements,
fraudulent conduct that we think impacts on his credibility.
THE COURT: What I think is better as to both of
those things, that you compile your lists as to prior conduct
at least a week before the trial starts. You can both brief
it. I won't rule until and unless the defendant decides he's
going to testify and you wish to use them on cross-
examination. But I want to have the lists and the issues
before me and briefed before the trial starts.
MS. PERRY: Can I submit the list to you ex parte?
THE COURT: No.
MS. PERRY: Judge, I just don't see why we should be
required to write our cross-examination a week before --
THE COURT: You don't have to write your cross-
examination. But you know if he had asked for them, you would
have to give him prior notice of intended specific prior bad
conduct. He didn't ask for it. I don't know why. Almost all
defense attorneys do. But he didn't ask for it. So you're in
no worse position than you would ordinarily be in had he been
diligent in seeking the information he's entitled to. Produce
them.
Anything else?
MS. PERRY: Is this, Judge, just with respect to the
608(b) the week before trial?
THE COURT: Both. There will be no rulings so there
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will be no real damage to him. He won't know what the
cross-examination is really going to be without my rulings.
And I think he can probably imagine all that you would intend
it to be if you had free rein. So I don't see any real
disadvantage to the government. I see a great advantage to
the Court with some difficult issues.
Anything else?
MR. KIRSCH: Not from the defense, your Honor.
THE COURT: Okay. We need to do jury instructions,
which I suspect are going to be somewhat changed since -- and
will be dependent on the -- I guess we can call it a bill of
particulars that the government is going to produce. So when
do you think we could profitably discuss both sides' intended
jury instructions?
MR. KIRSCH: Your Honor, I would suggest sometime the
week before trial. I'm just concerned we're doing it too soon
and then we have to do it again.
THE COURT: Government?
MR. KRICKBAUM: Judge, that's fine with us. For
reasons of my schedule, that actually makes the most sense for
us as well.
THE COURT: All right. I'll go back and look at my
docket and issue a minute order indicating a date a week
before trial that we can commence the jury instruction
conference.
1
EASTERN DIVISION

)
Plaintiff )
v. )
KEVIN TRUDEAU, )
)
Defendant )
____________________________________)

DEFENDANT KEVIN TRUDEAUS PROPOSED JURY INSTRUCTIONS

Defendant Kevin Trudeau, through his attorney, Tom Kirsch, hereby submits the
following proposed jury instructions.

KEVIN TRUDEAU

312-558-5600

2
DEFENDANTS PROPOSED INSTRUCTION NO. 2.

7th Cir. Pattern Crim. Fed. Jury Instruction 1.02 (2012) (modified to reflect that
charging instruction is an order to show cause)

The defendant has been charged with criminal contempt. The charge alleges that
the defendant willfully violated the district courts order of September 2, 2004, in case
number 03 CV 3904, by misrepresenting the content of defendants book entitled The
Weight Loss Cure They Dont Want You to Know About in infomercials on or about
December 23, 2006, J anuary 8, 2007, and J uly 6, 2007. The defendant has pled not guilty
to the charge.
The charge is not evidence that the defendant is guilty. It does not even raise a
suspicion of guilt.
3
DEFENDANTS PROPOSED UNANIMITY INSTRUCTION

7th Cir. Pattern Crim. Fed. Jury Instruction 4.04 (2012) (modified to reflect that
charging instruction is an order to show cause)

The defendant is charged with making more than one representation in
infomercials that misrepresented the content of defendants book The Weight Loss Cure
That They Dont Want You to Know About. The representations in the infomercials
that the government contends misrepresent the contents of the book are the following:
the weigh lose protocol is a cure and that it corrects the cause of obesity;

you can do it at home, anybody can do it at home, and you dont have to go
to a clinic to do it;

the weight lose protocol is inexpensive;

the weight loss protocol is simple and involves only a few other little things;

after finishing the protocol nothing is restricted you eat normally they eat
everything they want, and youll never have to diet ever again;

while on the weight loss protocol, people will have no hunger;

the weight loss protocol includes no deprivation and no food deprivation
whatsoever;

the weight loss protocol is not a diet, there is no portion control or calorie
counting, and that the weight loss protocol does not involve watching your
carbs . . . watching your fat [or] . . . crazy potions, powders, or pills; and

the weight loss protocol involves a miracle all-natural substance and that you
can get it anywhere.

The government is not required to prove that every one of the representations
listed above misrepresented the contents of the book. However, the government is
required to prove that at least one of the representations listed above misrepresented the
contents of the book. To find that that the government has proven this, you must agree
4
unanimously on which particular representation misrepresented the contents of the book,
as well as all of the other elements of the crime charged.
For example, if some of you were to find that the government has proved beyond
a reasonable doubt that the defendants representation that the weight lose protocol is a
cure misrepresented the content of the book, and the rest of you were to find that the
government has proved beyond a reasonable doubt that the defendants representation
that the weight loss protocol is inexpensive misrepresented the content of the book,
then there would be no unanimous agreement on which misrepresentation the
government has proved. On the other hand, if all of you were to find that the government
has proved beyond a reasonable doubt that the defendants representation that the weight
loss protocol is a cure misrepresented the content of the book, then there would be
unanimous agreement on which misrepresentation the government proved.

5

caused to be served true copies of DEFENDANT KEVIN TRUDEAUS PROPOSED
JURY INSTRUCTIONS, and accompanying exhibit by filing such documents through
the Courts Electronic Case Filing System, which will send notification of such filing to:
Marc Krickbaum
April Perry
Suite 500
Thomas L. Kirsch II

U. S. Department of Justice
Northern District of Illinois
Criminal Diuision
219 S. Dearborn St., 5tt,Floor
Chicago, IL 60604
Telephone (515) 473-9305
marc.krickbaum@usdoj.gov
October 16, 2013
Tom Kirsch
Winston & Strawn
35 W. Wacker Drive
Chicago, IL 60601-9703
Re: U.S. v. Trudeau, 10 CR 886
Dear Tom:
The government intends to present evidence and argument at trial that
defendant misrepresented the content of The Weight Loss Cure 'They" Don't Want
You To Know About in the infomercials that aired on December 23, 2006, January 8,
2007
,
and July 6, 2OO7
,
through the following types of representations.
.
Statements that state or imply that the weight loss protocol has an end
point, including, for example, statements that the protocol is a "cure;"
that it "corrects the cause of obesity;" that you can be "off the
program;" that you can "finish" with the protocol; and that you can be
"done" with it.
.
Statements that state or imply that people can do the weight loss
protocol at home, for example, stating "you can do it at home;"
"anybody can do it at home," and "you don't have to go to a clinic to do
it."
.
Statements that the weight loss cure protocol is "inexpensive."
Statements that the weight loss protocol is "simple"
and/or involves
only "a few other little things."
Statements that "no
exercise" is required by the weight loss cure
protocol, or that "you do not have to do any exercise" when on the
protocol.
Statements that state or imply that after finishing the protocol, a
person can eat anything without gaining weight, for example, "nothing
is restricted;" "you eat normally;" "no restrictions now;" "they're eating
everything they want;" "tons of sugar, tons of carbs," and that "you'll
never have to diet ever again." Other examples are lists of specific
foods that can be eaten, such as pizza, ice cream, and mashed potatoes.
Statements that imply that only minors should do the weight loss
protocol under the supervision of a licensed health care practitioner.
o
statements that while on the protocol, people will have "no hunger."
.
Statements that the protocol includes "no deprivation," and "no food
deprivation whatsoever."
o
Statements that imply that anyone can cure food cravings in two
minutes using the Callahan technique.
Statements that state or imply that the weight loss protocol is "not a
diet," including representations that there is no "portion control," or
"calorie counting," and that it does not involve "watching your carbs
. . . watching your fat
[or]
. . . crazy potions, powders,
or pills."
o
Statements that "anybody can do" the weight loss protocol.
.
Failure to disclose the specifics regarding the use and administration
of hCG during the weight loss protocol,
claiming instead only things
like that the protocol involves "a miracle all-natural substance," and
that "you can get it anywhere."
Sinc6rely,
Gary S. Shapiro
By:
%q'
Marc Krickbaum
I
Assistant United States Attorney
1
EASTERN DIVISION

)
Plaintiff )
v. )
KEVIN TRUDEAU, )
)
Defendant )
____________________________________)

DEFENDANT KEVIN TRUDEAUS OPPOSITION TO GOVERNMENTS
PROPOSED JURY INSTRUCTION NUMBER 17

For the reasons stated below, defendant Kevin Trudeau objects to the
governments proposed jury instruction 17. An aiding and abetting instruction is not
warranted in this case.
I. Introduction
The governments proposed instruction 17 is the pattern instruction for aiding and
abetting. The proposed instruction reads as follows:
Any person who knowingly aids the commission of an
offense may be found guilty of that offense if he knowingly
participated in the criminal activity and tried to make it
succeed.

(DE 82 at 18).
II. Argument
In order for a defendant to be convicted on an aiding and abetting theory of
liability, it is black letter law that a crime must have been committed by someone other
than the defendant. See U.S. v. Horton, 180 F.2d 427, 431 (7th Cir 1950) (One cannot
2
aid and abet in the commission of a crime unless there is another who has committed the
offense. In other words, one cannot be an aider and abettor of himself in the commission
of an offense.); U.S. v. Best, 219 F.3d 192, 199 (2d. Cir. 2000) (To convict a defendant
on a theory of aiding and abetting, the government must prove that the underlying crime
was committed by a person other than the defendant and that the defendant acted-or
failed to act in a way that the law required him to act-with the specific purpose of
bringing about the underlying crime.); U.S. v. Hurd, 642 F.2d 1179, 1183 (9th Cir 1981)
(reversing aiding and abetting conviction because government failed to prove that
principal committed the underlying crime). It is generally recognized that there can be
no conviction for aiding and abetting someone to do an innocent act. Shuttlesworth v.
City of Birmingham, 373 U.S. 262, 265 (1963); U.S. v. Ruffin, 613 F.2d 408, 412 (2d Cir.
1979) (It is hornbook law that a defendant charged with aiding and abetting the
commission of a crime by another cannot be convicted in the absence of proof that the
crime was actually committed.).
In this case, the crime alleged is criminal contempt. In order to prove that crime
occurred, the government must prove that someone willfully violated J udge Gettlemans
order, not simply that J udge Gettlemans order was violated (that is the difference
between criminal and civil contempt). (DE 82 at 15). Because there will be no evidence
presented or argument on the state of mind of any other actor besides the defendant
(including ITV), the government will not prove (or even attempt to prove) that someone
other than the defendant committed the crime of criminal contempt. In other words, there
will be no evidence or argument at trial that anyone other than the defendant willfully
3
violated J udge Gettlemans order.
1
Therefore, if the government fails to prove that the
defendant committed the crime, it will necessarily have failed to prove that anyone else
committed the crime either. Accordingly, to allow the jury to find the defendant guilty of
aiding and abetting will permit the jury to find that the defendant aided and abetted an
innocent act or aided and abetted himself, either of which is improper.
CONCLUSION
WHEREFORE, Trudeau respectfully requests that the Court not give to the jury
governments proposed instruction 17.

KEVIN TRUDEAU

312-558-5600

1
This is not a case where the defense will be that although a crime was committed, it was
committed by someone other than the defendant. Rather, the defense will be that no
crime was committed by anyone. And, the government will not argue that a crime was
committed by anyone other than the defendant.
4

caused to be served true copies of DEFENDANT KEVIN TRUDEAUS
OPPOSITION TO GOVERNMENTS PROPOSED JURY INSTRUCTION
NUMBER 17 by filing such document through the Courts Electronic Case Filing
System, which will send notification of such filing to:
Marc Krickbaum
April Perry
Suite 500
Thomas L. Kirsch II

1
EASTERN DIVISION

)
Plaintiff )
v. )
KEVIN TRUDEAU, )
)
Defendant )
____________________________________)

AGREED PROPOSED JURY INSTRUCTION

Defendant Kevin Trudeau, through his attorney, Tom Kirsch, hereby submits the
following agreed proposed jury instruction.

KEVIN TRUDEAU

312-558-5600

2
The issue of whether what is written in The Weight Lose Cure They Dont Want You to
Know About is truthful or not is not an issue for you to decide. It is not relevant to the
issue in this case. Likewise, the issue of whether the weight protocol described in the
book is effective for weight loss is not relevant to the issue in this case, and is not an
issue for you to decide.

3

caused to be served true copies of DEFENDANT KEVIN TRUDEAUS AGREED
PROPOSED JURY INSTRUCTION, and accompanying exhibit by filing such
documents through the Courts Electronic Case Filing System, which will send
notification of such filing to:
Marc Krickbaum
April Perry
Suite 500
Thomas L. Kirsch II

1

EASTERN DIVISION
Plaintiff, )
) Case No. 10-CR-00886
v. )
KEVIN TRUDEAU, )
Defendant. )
____________________________________
DEFENDANT KEVIN TRUDEAUS MOTION IN LIMINE TO ADMIT THE NATURAL
CURES BOOK AND INFOMERCIAL INTO EVIDENCE

Defendant Kevin Trudeau included in his proposed trial exhibits a copy of his book
Natural Cures They Dont Want You to Know About (Natural Cures) and the related
infomercial, as well as other exhibits relating to the Natural Cures infomercial and book.
1
This
evidence is relevant because the Natural Cures infomercial and book served as a template for
Trudeaus The Weight Loss Cure They Dont Want You to Know About (Weight Loss Cure)
infomercial and book. Its undisputed that the Natural Cures infomercial was explicitly
approved by the FTC as a tangible example of what was permitted under the 2004 Consent
Order. Because Trudeau was undisputedly aware of the FTCs approval of the Natural Cures
infomercial, Trudeau used that infomercial as a template for the Weight Lose Cure infomercial
and book. The Natural Cures evidence is relevant to Trudeaus state of mind and should be
admitted into evidence.

1
At the final pre-trial conference held on October 28, 2013 the government agreed that Defendants proposed trial
exhibit relating to the FTCs approval of the Natural Cures infomercial was admissible. See October 28, 2013
transcript at 191 (MS. PERRY: Based upon the Defenses representation that this is the only correspondence they
are now to seeking to admit, we have no objection to those that sentence and a half. The sentence and a half to
which the government prosecutor stated that the government had no objection is as follows: we no longer object to
the dissemination of the Natural Cures infomercial pursuant to the preliminary injunction. This only refers to the
version of the infomercial a transcript of which was sent to me via fax on J uly 19, 2004.) On the eve of trial, the
government is now apparently changing its position on evidence to which it earlier stated it had no objection.
2

The government indicated during pretrial discussions on October 31, 2013, that it will
object to this evidence on relevancy grounds absent Trudeaus testimony. Specifically, the
governments position will be that the Natural Cures evidence is irrelevant unless Trudeau
testifies that he honestly believed that the infomercial for Weight Loss Cure complied with the
2004 Consent Order because the FTC approved the Natural Cures infomercial. Absent
Trudeaus testimony as to his state of mind, the government objects to the admission of the
Natural Cures evidence. In other words, the governments position seems to be that Trudeaus
state of mind can only be established by direct evidence from Trudeau.
The governments position is incorrect. The Natural Cures evidence is admissible
regardless of whether Trudeau testifies because there is evidence (both direct and circumstantial)
that the FTCs explicit approval of the Natural Cures infomercial served as a template for the
content of the Weight Loss Cure infomercial. As a result, Trudeau respectfully requests that this
Court grant his motion and allow the Natural Cures evidence to be admitted into evidence at trial
whether or not Trudeau testifies in his defense.
I. The Defense Will Be Able To Establish Through Admissible Evidence That The
Defendant Was Aware That The FTC Approved of the Natural Cures Infomercial
And Book.

It is undisputed that the defense will be able to establish through admissible evidence
other than Trudeaus testimonythat Trudeau was aware that the FTC approved the Natural
Cures infomercial and book as something that was permitted under the 2004 Consent Order.
Trudeau was present at a September 2, 2004, hearing before J udge Gettleman where FTC
attorney Heather Hippsley and Trudeaus lawyer discussed the Natural Cures infomercial and
book and represented to the court that it was an example of something that was permitted under
3

the Order. FTC attorney Heather Hippsley told J udge Gettleman at the hearing and in Trudeaus
physical presence the following:
And there is an exception to [the infomercial ban in the 2004 Consent Order]
which is for what we both have agreed is an area where he has more First
Amendment protections in his interest in putting forward advertisements that deal
with basically fully protected speech, which would be his ability to have a book or
other informational materials that are not related in a commercial setting to the
sale of a product or program or service, but merely provides his views and
opinions on various topics.

(Ex. A, 9/2/04 Tr. at 3:14-21 (emphasis added).) A few minutes later, Trudeaus lawyer, David
Bradford, explained:
Then a further understanding was Mr. Trudeau did complete whats referred to as
The Natural Cures Book. He has developed an infomercial for that Natural
Cures book. This has been provided to the FTC. And they have no objection
to the dissemination of the book or the infomercial in its current format.
This I think falls within the book exception that we had talked about
previously. So we have the first tangible example of something that is
acceptable under that provision.

(Id. at 10:17-25 (emphasis added).) Neither of the two FTC attorneys at the hearing made any
comment whatsoever to correct, object, or clarify Bradfords remarks to J udge Gettleman. (See
also Ex. B (FTC attorney Daniel Kaufman on J uly 23, 2004: [W]e no longer object to the
dissemination of the Natural Cures infomercial[.]).
2
)
There can no dispute that Trudeau was aware of the FTCs unequivocal position on
Natural Cures. The Natural Cures infomercial and book then became the template by which
Trudeau understood what he could and could not do under the 2004 Consent Order.
II. Circumstantial Evidence Indicates That Trudeau Used The Natural Cures
Infomercial As A Template For The Weight Loss Cure Infomercial.

2
Kaufman was present along with Hippsley at the September 2, 2004, hearing before J udge
Gettleman.
4

There is adequate circumstantial evidence that Trudeau used the Natural Cures
infomercial as a template for the Weight Loss Cure infomercials without Trudeaus direct
testimony regarding his state of mind. Specifically, there are substantial similarities between the
Natural Cures infomercial and the Weight Loss Cure infomercial that could give rise to a clear
inference that Trudeau used the Natural Cures infomercial as a template for the Weight Loss
Cure infomercials. In the Natural Cures book, Trudeau presents 111 separate options for people
to follow as natural cures for healthy living. Many of these options are precisely the same as the
options set forth in Phase 1 of the Weight Loss Cure book. For example, the Candida cleanse
and use of a rebounder appear both in the Natural Cures book and the Weight Loss Cure book.
(Compare Ex. C, Natural Cures book at 116 (discussing use of a rebounder)), 158 (Do a
Candida cleanse), with Ex. D, Weight Loss Cure book at 107 (Do a Candida cleanse), 162
(discussing use of a rebounder).) Notwithstanding the relatively involved nature of these 111
items presented in the Natural Cures book, the Natural Cures infomercial describes the items
suggested in the book as both simple and inexpensive, both descriptions that he also uses for
the Weight Loss Cure. Given the similarity in which Trudeau describes his Natural Cures book
in its infomercial to the manner in which he describes his Weight Loss Cure book in its
infomercial, it is more than reasonable for the jury to infer that the FTCs approval of Natural
Cures was a template for the Weight Loss Cure infomercial. In fact, this inference is not just
reasonable, it is likely, especially considering that Trudeau described many of the exact same
items as simple and inexpensive in both the Natural Cures and the Weight Loss Cure
infomercials (using language that had been explicitly approved by the FTC). (Compare Ex. E,
Weight Loss Cure infomercial at 10:28-29 ([I]ts simple, its inexpensive.), with Ex. F, Natural
5

Cures infomercial at 3 (They dont cost a lot.), 24 (Pat Matthews: There could be simple
cures. Trudeau: [T]here are[!]).)
Moreover, the Weight Loss Cure infomercial was produced in 2006, only a little more
than two years after the 2004 Consent Order was entered. And, Weight Loss Cure was Trudeaus
very next publication after the Natural Cures books. This temporal connection is additional
evidence from which the jury could easily infer that Trudeau used the Natural Cures infomercial
as a template for the Weight Loss Cure infomercials.
Of course, the government can argue to the jury that the evidence does establish what the
defense argues it does, and that the jury should not draw this inference or reach this conclusion.
But, that is a question for the jury to decide. The jury can certainly draw the inference, from the
undisputed and admissible evidence, that Trudeau did in fact use the Natural Cures infomercial
and book as a template for Weight Loss Cure.
III. Trudeau Should Be Permitted To Present The Natural Cures Evidence To Rebut
Willfulness And To Demonstrate A Good Faith Defense, Regardless Of Whether He
Testifies At Trial.

J uries are permitted to make reasonable inferences from circumstantial evidence as a
matter of routine. See U.S. v. Donovan, 24 F.3d 908, 913 (7th Cir. 1994) ([W]e expect jurors to
draw on their experience as well as their common sense to draw reasonable inferences from the
circumstantial evidence.). In fact, juries are told to make reasonable inferences from the
evidence, both direct and circumstantial. See 7th Cir. Pattern Crim. Fed. J ury Instruction 1.05
(2012) (The law makes no distinction between the weight to be given either direct or
circumstantial evidence. You should decide how much weight to give to any evidence. All the
evidence in the case, including the circumstantial evidence, should be considered by you in
reaching your verdict.).
6

In addition, the Seventh Circuit has specifically found that indirect or circumstantial
evidence that does not come from the defendant can be used to suggest good faith of the
defendant. United States v. Kokenis, 662 F.3d 919, 929 (7th Cir. 2011), cert. denied, 132 S. Ct.
2713 (2012) (The [district] court erred in thinking that evidence of [the defendants] state of
mind had to come from [the defendants] own testimony. . . . Although a defendants own
testimony might be the best evidence of that defendants good faith, a defendant can offer
evidence of good faith in other ways. For example, circumstantial evidence may tend to show
good faith and hearsay statements of the defendant may suggest a defendants belief.); United
States v. Phillips, 217 F.2d 435, 442 (7th Cir. 1954) (noting that evidence of defendants good-
faith reliance on advice of counsel can come from the governments witnesses or the defendant's
witnesses); see also United States v. Lindo, 18 F.3d 353, 356 (6th Cir. 1994) ([T]he standard of
evidence necessary to warrant a [good-faith reliance] instruction cannot include an absolute
requirement that the taxpayer must testify, for that would burden the taxpayers own Fifth
Amendment right against self-incrimination.) (internal quotation omitted).
Moreover, as this Court is aware, in order to prove that the defendant is in criminal
contempt, the government must meet its burden of proof that Trudeau willfully violated the
2004 Consent Order. United States v. Simmons, 215 F.3d 737, 741 (7th Cir. 2000). One defense
to this willfulness element is to produce evidence that the defendant believe in good faith that
he or she was in compliance with the court order. Id. (Because a good faith effort to comply
with a court order negates willfulness, an element of criminal contempt that must be proven
beyond a reasonable doubt, a defendant may present evidence of good faith as a defense to a
criminal contempt charge.). It is well settled that a criminal defendant is entitled to have the
jury consider any theory of the defense which is supported by law and which has some
7

foundation in the evidence, however tenuous. United States v. Kelley, 864 F.2d 569, 572 (7th
Cir. 1989) (quoting United States v. Grimes, 413 F.2d 1376, 1378 (7th Cir.1969)), cert. denied,
493 U.S. 811, 110 S.Ct. 55 (1989). Trudeaus defense theory here, that he used the Natural
Cures infomercial as a template for the Weight Loss Cure infomercial in an effort to comply with
the 2004 Consent Order, goes directly to refuting any evidence the government may put forward
on willfulness. And this defense theory is supported by law (good faith is a defense to criminal
contempt) and has a strong foundation in the evidence referenced above. Trudeau is therefore
entitled to present his evidence on this point and have the jury consider his defense theory.
WHEREFORE, because a sufficient basis exists to conclude that the Natural Cures book
and infomercial are relevant evidence of Trudeaus state of mind, the Court should grant
Trudeaus motion and allow the Natural Cures evidence to be admitted, regardless of whether
Trudeau testifies.

Dated: November 1, 2013
KEVIN TRUDEAU

Katherine E. Rohlf (krohlf@winston.com)
312-558-5600
8


I, Thomas L. Kirsch II, an attorney, hereby certify that on November 1, 2013, I caused to
be served true copies of DEFENDANT KEVIN TRUDEAUS MOTION IN LIMINE TO
ADMIT THE NATURAL CURES BOOK AND INFOMERCIAL INTO EVIDENCE and
accompanying exhibits by filing such document through the Courts Electronic Case Filing
System, which will send notification of such filing to:

Marc Krickbaum
April Perry
Suite 500
Thomas L. Kirsch II
EASTERN DIVISION
Plaintiff, )
) Case No. 10-CR-00886
v. )
KEVIN TRUDEAU, )
Defendant. )
____________________________________

INDEX OF EXHIBITS TO DEFENDANT KEVIN TRUDEAUS MOTION IN LIMINE
TO ADMIT THE NATURAL CURES BOOK AND INFOMERCIAL INTO EVIDENCE

Exhibit
Number

Description
A September 2, 2004 Transcript

B J uly 23, 2004 Email from D. Bradford

C Excerpts from Natural Cures Book

D Excerpts from Weight Loss Cure Book

E Excerpt from Weight Loss Cure infomercial

F Excerpt from Natural Cures infomercial


Exhibit A

1
a
2
IN THE UNITED STATES COURT
. EASTERN DIVISION
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) Chi cage, 111i noi 5
) .. september 2, .2004
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FEDERAL TRADE COMMISSION
660 pennsylvania Avenue, NW.' NJ-3212
washington . DC 20580" .
BY: .. MR. DANIEL KAUF.MAN'
MS. HEATHER HIPPSLEY
JENNER &BLOCK. LLC
One IBM plaza
chi caqo , Illi no; 5 60611
BY: . DAVID J.
HURTADO'
Mr. l<evi i1 Trudeau,
JENNIFEJ{ S. COSTALES, eRR. RMR
219 South Dearborn Stre2t
Room '1706
., ch; cagp,Illi noi s 60604
(312) 427-5351
" '.
3
,1 elaborate on a' few points that we warrt to make sure are all right..
2" with ,''the' Court, arid meet with your approval'.
3 . MR. BRADFORD: . I was to talk about; the' broad
4." exceptrions to the narrow. i.nj unct.i on.
, .6:,ofthe'mi 11y.
,,5,':"
.Ms. HIPPSLEY: No, no, no, We really do have a meeti ng , .
, .
NO. ttl s an or.der that we,worked to
, .
.7.; achi eve , Mr. 'hasagreedto .twq bans that we.: r!i!alizeare :
.", goingtc)"have a .l-arge';rnpact on his'abili'ty 'to 'do in the
...::9' .future. a'nd' so'rt,"o.f:form what he's .. "
O-:,'"J:he first:,is a ban on
. . ..' . . . . . . .
11 'or s:tin.g other's in mak'i l1'g i nfomercfa'ls , and that 5 "
12 :::defined in 'the two 'nrimrtes o,r type of "
13 on any type .radio media.,
. '. ". -'. .' .." . . .
14 '," Arid the re j s an excepti on to thi s whi ch is for what, we
". . . . '.
",15 both is' an area hehas 'Amendment
,.'1'6 prtrtect'i 6ri.S' in' hi 5i i'n. putLi"9"
i7'that d'eal wjth bi:l.sical;y. fully protected wtiichwould be,
'18 .his ability to: have a beckorother- fnformatf ona'l mater-fal s that,
19 are not re l ared .in a commercial s,ettfng -to 'the sale of 'a product, '.'
'.' . :. ..... ' . ." ",
"
,,'20 or p..... or .servica , but merely, provides.. his views and optrrtons
:21 on vart bus cs , '

23 ,calCium
'COURT: ,so if he wri.tes a book, about coral'
MS. HIPPSLEY: Tha:l;:'s correct .
,.
24
25
. ". -
" 'THE COURT: .that would be an infomercial.
, "
:.. ..
10
1 anythi ng rhat 's already been put on the table. And thts ' really
2 does resolve di fferences .that we I've had based on everytlri ng
, that's been' disclosed tathe FTC,to the present
4 And finally', there is an understanding that infomercials
5 have been provided to third parties at var-ious the
6 past, and as long as Mr; 'rrudeauhas no' dfrecr or; ; ndi rect '
7 . fi'nand al interest 'i n those, parti es-and flo abiTi'ty,:'to control
8. the; r di ssemi nati on and otherwise comp" es with, the," or.der', ,tha.t
9 he will not 'be liable. for what thirdparties:wi:l".
10 i nfomer,c,i a15.
11 MS. HIPPSLE'f,: And along the point with the,tbi.rd
12 there is an obligation which Mr,. irudeau recognizeS td,
. . . ..,
13 notify the thi rd .par't'ies that h'e did di;>..pr.oductrion in the,"
14 past of the pre'sence'of the order, which,wehope,wi1l have-a
. .
15 dererr-enr effect on the thi rdparti es,
16
17
THE COURT: okay..
MR. BRADFORD: Then a 'further 'was
Mr,' 'rrudeau di d camp]ete what IS referred to', as "rhe Natu:rai .cures
, -
19 sock." ,He has developed an trrfomer-ct al for that cures
- .' . "..
20 book, This has been provided to rhe have n'o
21, abjection to the, of the book, or the infomercial in,
22 ,its current format.
\
23 'rhi 51' thi nk falls w; thi n the book except; on that' we, had
24 . talked about prev.iously. So we have the first tangJble examp'la
-- -,
25 of somerh'i ng that ; 5 acceptab.1 e under that provi 5'; 0')'.
- L-,
J
I.
11
1 .ltis generally Mr. Trudeau's. intention and consistent
2, th the order' that he intends to get out of the bus; ness of
3 selling product and focus on becoming an author. whfch is
, ,
4 'permit,tedunderthe orderj a potentially producer of t.e'l ev'i s'i on
5 ,tal k show format or otherwi se hosti ng tal k. shows; and/r:>r that he
6 can engage as a pro.fession in being a consumer critic or
7 advocate.
'S,
And -as we've talked those, particular
9:,we',ve tried to focus on practical situations ,that may, come up
10, .that' may create 'i ssues under the order.
" '.' '.
li ' With respect; to t he talk show, we have spec'i f'i ca'll y
12 here, what is an infomerd,al and what' is a talk show, and,
1'3 I think we have, some very criteria.' But to the
extent We ever ,have disagreements in ,the future, it 'would be our
,1S";n-tl;ntion to, subnrl't anythiniJ that FTC and
16 out ',those differences ,with 'them; But that,;sone
17. area where there, is potential for,disagreement, down the, 'road.
18 , wou'ldr-eference a Febr::'uary 18.
, 20041 et'ter which was provi ded tnvour Honor as one of the
:20 wi,th which, laid out
e.",
21
?2
..
23
ofvthe principles in terms of talk shows and and talk show'
. . . .
...... ,_ <0 _ _ __ ...... _ , _ ._. __
r
16
THE COURT: You can get them totally on rhe Interne't
2 these days, right', I'm told?
3
4
MR.BRADFORD: corr-ect ,
THE COURT: Not that i would ever want to read one like
. .? that. .!' m told that' 5 the newest; ng All ri ght .
'6 .
. MR;. BRADFORD: If I mi ght JUSt have one moment. to '..
.. 7. consu'lt w; th my. 'client to make sure I have: not m;ssed ...
.a.. COURT:
. . .
:.$ (0; scussi on .off, the record.)
. .3,0
":. ',.
11
12 ......
MR. BRADFORD.: Thank you very much . Your Hono.r.
THE COURT: All ,:"ight. well,
. _.' . '. . .
I' m. go.ing to that :thi s. case i sterminated .
13 :hopefull y nor .have to see. you back on ; t .50 we can' get rid of
'14 some of 'the volumtnous in our. office
. .....
15
16
50 .goo;l luck.
BRADFORD.: Thank you so much..
17 Ms'. : H.1PPSl-EY: ""thank you .
. 18 . . . THE' COURT: ;,Thankyou.
, '. ".
'19' . (proceedi nqs conc'luded.)
. E R T. I F .1 CAT
211. Jenni.fer 5.; Costa1es , do hereby cer.ti fy tha:t the
,': foregoing is a complete. true, and
22 proceed! ngs had iri the above-entitled case before' the Honorabl e .
ROBERT W: GElTLEMAN. one of the judges of sa.idcour-t . at Chicago.
23 III fhoi s , on september .2 ,2004. .
24
2S .
. off; Cial court. Reporter .
united States 'District court
District .of 11l1nois
bivision .

Exhibit B


Exhibit C

Natural Cures
"They" Don't Want You
to Know About
Natural Cures
to Know About
KEVIN TRUDEAU
Alliance Publishing Group, J nco
Natural Cures "They" Don't Want You to Know About
Copyright 2004 by Kevin Trudeau
All rights reserved.
This edition published by Alliance Publishing Group, [nco l'or informa-
tion, address Alliance Publishing Group, Inc., 104 W. Chestnut St.
#330, Hinsdale, Illinois 60521-3387.
Published in the United States of America. No part of this book may be
used or reproduced in any manner whatsoever without the written per-
mission of the publisher.
[SBN 0-975S99S-0-X
Library of Congress EPCN application in process.
Library of Congress Control Number: 2004111635
Manufactured in the United States of America
109
How 0 Never Get Sick Again 115
J 2. Don't drink tap water
All tap water is poisonous. All tap water is loaded with chlorine
and chlorine by-products. Chlorine scars your arteries and, along
with hydrogenated oil and homogenized dairy products, causes
heart disease. Most tap water also has t1uoride, which is one of the
most poisonous and disease causing agents you can put in your
body. Do not drink or use tap water for any reason except for
washing your floor.
You need to drink water, and the water must be pure Water is
instrumental not only in flushing and nouri shing the body, but also
in keeping it hydrated and pH balanced. I recommend drinking a
minimum of six large glasses of water per day. I recommend a spe-
cific water purifier and specific bottled waters. Not all water filters
or purifiers do an equally effective job. Some are much better than
others. Not all bottled waters are equally pure and hydrating. Some
are much better than others. Go to www.naturalcures.com for my
personal recommendations.
13. Eat an apple a day
14. Take coral calcium
The Fcdcral Trade Commission forbids me to say anything about
coral calcium. For the truth, go to www.naturalcures.com.
15. Take a whole food supplement
Your body is deficient in vitamins, minerals, enzynles, and cofactors.
That is afact. There is no way that you can get all the nutrients you
need by eating food. You would have to eat ten to twenty times the
amount of food as you are now, and it would all have to bc organic.
There simply is no way you are getting the nutrients you need.
Having the proper amount of vitamins, minerals, enzymes and
cofactors all ows your body to operate as it was deSigned. The best
way to get thi s needed nutrition is by malting fresh juice at home.
But I also suggest buying a whole food concentrate nutritional sup-
plement. Your product should not contain any chemical of synthet-
ic nutrients, but only organic, raw concentrated food sources. For
my personal recommendations, go to
116 Natural Cures "They" Don't Want You co Know AbouL
16. Buy a shower filter
You absorb more toxins by taking one shower than by drinking six
glasses of water. Your skin absorbs the water from your shower or
bath. A hot shower produces steam and that turns many of the
chemicals in the water into poisonous gases. These gases are
inhaled or absorbed through the skin. J\ good shower filter
removes most of the toxins in the water. Use one and you' ll never
have a bad hair day again. For my personal recommendations go
to www.naturalcures.com.
17. Use magnetic finger and toe rings
These are inexpensive and easy to use. Simply wear this specially
deSigned magnetic ring on the small finger of each hand, and if you
. want even more benefit, wear the toe brace on each foot. These are
worn when you sleep. The health benefits seem to be almost unbe-
lievable. This device appears to radically slow the aging process
and, in most cases, appears to reverse the aging process; people
report looking and feeling younger as time goes on. These are
absolutely amazing. For information on where these are available
go to www.naturalcures.com.
18. Use a rebounder
A rebounder is a mini trampoline. Simply using this device for five
minutes a day can provide more cellular' benefit than almost any
other form of exercise. A rebounder stimulates every cell in the body
simultaneously. It stimulates the immune system and is incredibly
effective at cleanSing tOXins out of the cells. It promotes and stimu-
lates all maj or organs and glands, strengthens the immune system
and dramatically strengthens and tones the muscles, tendons, and
ligaments. A truly spectacular and incredibly quick form of exercise.
19. Get treated by an bioenergetic synchronization technique practi-
tioner
Dr. Morter invented this technique. He has trained thousands of
people in this treatment. This technique is painless and takes only
a few minutes. It is an incredibly effective way of rebalancing the
body, reducing or eliminating pain or trauma, and is very powerful
I
I
!
c H AP T E R 8
How to Lose Weight
Effortlessly and K.eep It
Off Forever
This is not a w<;!ight loss book. However, I want to give you the simple
steps that will allow you to lose weight faster and easier than ever
before, and keep it off once and for all. Space does not permit me to go
into the "whys" regarding each step. I can assure you that following
these steps will absolutely work. I have struggled with my weight my
entire life. I was a fat kid. I tried every diet, every weight loss pill, and
even hired a personal trainer, exercising as much as five hours a day.
Whatever I lost, I put back on. When I was losing weight I was hungry,
tired, and grumpy. I never understood what the problem was; not until
I went overseas did I find the answer. While living abroad I ate every-
thing I wanted, yet began to lose weight without even trying. This led
me to the discovery of the reasons why Americans are so overweight,
and an easy workable solution. Doing these steps will turn your body
into a fat-burning furnace and bring your weight to its natural state.
These steps also have tremendous health benefits as well.
1. Drink a glass of water immediately upon arising
Ideally, the water should be distilled. Absolutely no tap water. This
starts the body's metabolism and cleansing.
2. Eat a big breakfast
It is interesting to note that 80 percent of the people who are over-
weight eat a small breakfast or none at all. Eighty percent of thin
people eat a large breakfast. Your breakfast should consist of as
157
158 Natural Cures "They" Don't Want You to Know About
much as you want of the followi ng items. Everythi ng li sted should
be organic; apples, pears, berries, kiwis, pineapples, grapefruit,
plums, peaches, prunes, figs, rye bread, raw butter (raw means not
pasteliri zed and not homogenized), raw milk, plain yogurt (this
means no sugar or fruit), wil d smoked salmon, beef in any form as
long as it's organi c, chi cilen in any form as long as it's organic, lamb
in any form as long as it's organic, tuna, sardines, eggs, tomatoes,
peppers, salsa, celery, carrots, any vegetable, potatoes in limited
amounts, coffee in limited amounts made with pure water (not tap
water), with raw mi1l{ or cream and raw evaporated s ligar cane juice
or honey as a sweetener, real tea (not tea in tea bags).
3. Drink eight glasses of distilled water each day
People think drinking water will make them gai n weight and be
bloated. The exact opposi te is t rue. [f you are overweight you need
to !lush the toxins from your fat cens. Water is absolutely needed for
. you to lose weight.
4. Walk for at least one hour, non-stop, per day
The body is designed to wanl. Research shows that slow, rhythmiC
movemen t exercise, such as walking, resets your body's weigh t set
poi nt and creates a thin, lean body. A one-hour walk everyday will
change your body dramaticany in as little as one month.
5. Do not eat after six p.m.
Do the best you can on this. However, the good news is you can vir-
ruany eat like a pig all day long. And if you stop eating after six, you
will still lose weight !
6. Do a candida cleanse
If you are overweight , you positi vely, absolutely have a candida
yeast overgrowth, probabl y throughout your entire body. Losing
weight will be hard and slow and keeping it off nearl y impossible as
long as this condition exists. If you wipe out the excess candida, los-
ing weiglll win be easier and effortless, and keeping it off win be a
breeze. You must get the book Li/eforce, which explains the candi-
da cleansi ng process. Order thi s book by caning 800-931-4721, or
go to www.naturalcures.com.
How to Lose Weight Effortlessly and i(eep it Off 159
7. Do a colon cleanse
If you are overweight, I guarantee you that your digestive system
is slow and sluggish. Unless you are having two to three bowel
movements per day, you are in fact constjpated. Cleansing the
colon will dramatically increase your metabolism, and you can
lose up to ten pounds by simply getting rid of the embedded tox-
ins in your colon. There are many colon cleansing programs avail-
able. Inquire at your local health food store for recommendations.
For my personal favorite go to www.naturalcures.com.
8. Eat organic grapefruits all day
Remember the grapefruit diet? Well, it appears that there actually
is an enzyme in grapefruits that burns fat. Eating grapefruits all
day, as many and as often as you deSire, will speed the fat burning
process.
9. Absolutely no aspartame or any artifiCial sweeteners
Aspartame, which goes by the name NutraSweet", will make you
fat. All other artificial sweeteners, including saccharin, Splendao or
anything else, should be avoided. If you want the full story, read
two books: Aspartame: Is it Safe? and Excitotoxins: The Taste that
Kills. You can order these books by calling 800-931-4721, or by
going to www.naturalcures.com.
10. Absolutely no monosodium glutamate (MSG)
MSG is an excitotoxin. It makes you fat, causes all kinds of med-
ical problems, and can affect your mood making you depressed. It
also can be physically addicting, like aspartame, and actually make
you hungrier. Unfortunately, the food industry has lobbi ed
Congress to pass laws allOWing monosodium glutamate to be put in
the food and not be listed on the label. There are dozens of words
that can be on the labei such as spices, artificial fl avoring,
hydrolyzed vegetable protein, etc., that are in fact MSG in disguise.
This is why I recommend buying organic food, where everything
listed in the ingredient list is something you recogni ze and can pro-
nounce. Also, MSG is in Virtually all fast food , including things you
would never imagine, such as pizza. This is why people in foreign

Exhibit D

The Weight Loss Cure
. I
To Know About
Also by Kevin Trudeau
Natural Cures "They" Don't Want You To Know About
More Natural Cures Revealed: The Previously
Censored Brand Products That Cure Disease
Mega Memo1Y
The Weight Loss Cure
'They" Don't Want You
To Know About
KEVIN TRUDEAU
. Alliance Publishing Group, Inc.
Weight Loss Cures "They" Don't Want You to Know About
Copyright 2007 by Kevin Trudeau
All rights reserved.
This edition published by Alliance Publishing Group, Inc.
For information, address:
Alliance Publishing Group, Inc.
P.o. Box 207
Elk Grove Village, IL 60009
Published in the United States of America. No part of this book
may be used or reproduced in any manner whatsoever without
the written permission of the publisher.
ISBN 13: 978-0-9787851-5-4
ISBN 10: 0-9787851-5-0
Library of Congress Control Number: 2006940486
Manufactured in the United States of America
109876
The Oure Revealed 107
also allow you to fully indulge in the most delicious food
without deprivation.
2. No "brand name" food. The rule here is not to eat food pro-
duced by publicly traded corporations. Remember, large
publicly traded food companies are the enemy. They are
producing food that is genetically modified, loaded with
chemicals, growth hormone, drugs, trans fats, and other
ingredients specifically and purposely created to increase
your appetite, get you chemically addicted to the food, and
make you fat. You cannot trust any of the mass-produced
food they sell. They are using deceptive advertising tech-
niques and sophisticated brainwashing techniques in their
advertising to create mental triggers that cause us to have
compulsive urges and cravings for their food. Staying away
from any brand name heavily advertised product is the best
course of action. Knowing that every publicly traded large
food company will use every deceitfuI.and misleading tech-
nique,and fancy food label, to get uS to buy their product
and make us fat is reason enough to avoid supporting them
by never buying their products.
3. No fast food, regional or national chain restaurants. This is
the same as the previous rule. Virtually all the food available
from regional and national restaurant chains and fast food
companies is specifically designed to. increase appetite, get
us chemically addicted to the food, and make us fat. This is
a new phenomenon. It did not exist in Simeons's day. If you
go back to eating food fr.om these unscrupulous companies
you will get fat again.
4. Do a Candida cleanse. In Simeons's day Candida yeast over-
growth was almost nonexistent. Today, over 80% of the U.S.
population has some degree of Candida yeast overgrowth.
This condition creates massive food cravings, gas and bloat-
ing, depression, increased hunger, poor digestion, and
fatigue. In order to make your weight loss permanent and to
ensure no food cravings or feelings of deprivation, it is vital
that you do a Candida cleanse as soon as possible. A gpod
beginner cleanse is the ThreeLac program, available at
www.123candida.com. The most complete and powerful
108 The Weight Loss Cure "They" Don. 't Want You to Know About
Candida cleanse is the LifeForce Program available at
www.lifeforceplan.com. There are many other Candida cleanse
and programs available. Consult with a local licensed health
care practitioner who uses non-drug and non-surgical meth-
ods to cure and treat disease. A list is available at
www.naturalcures.com.
5. Clean your colon. Hopefully, you have done this step in
Phase 1. Since it is impossible for you to eat perfectly for the
rest of your life, it is necessary for you to clean your colon at
least once per year. I generally do some form of colon cleanse
three to four times per year. Good colon cleanses include a
series of five to fifteen colonies in a thirty-day period. Other
good colon cleanses can be found at www.drnatura.com.
www.tryaimighrycleanse.com, www.pbiv.com, www.qnlabs.com,
and www.dr-schuize.com.
6. Do a liver cleanse. Cleansing the liver will dramatically improve
digestion, increase metabolism, and make permanent weight
loss very easy. Several liver cleanse products and programs
can be found at www.dmatura.com, www.liverdoctor.oom,
www.dr-schulze.com, and www.qnlabs.com.
7. Drink one-half to one gallon of pure water daily. This is vital
to keep the cells hydrated and continually flush toxins from
the body. Ideally, drink water with coral calcium sachets.
8. Do a parasite cleanse. After you have done a colon cleanse
and a liver cleanse, it is wise to use a parasite cleanse prod-
uct or program. In addition to promoting long-term weight
regulation, the benefits also include dramatic increase in
energy and alleviating of a multitude of medical symptoms
and conditions. It has been shown that a majority of people
have parasites which are partially responsible for the devel-
opment of many degenerative diseases. For a list of recom-
mended parasite cleanse products and programs go to
www.naturalcures.com, www.qnJabs.com, www.dmatura.com,
www.drstockwell.com, and www.paradevices.com.
9. Do a heavy metal cleanse. The best known method is intra-
venous chelation performed by a licensed health care prac-
titioner. Products that can be taken at home that help
The Cure Revealed 109
remove and help the body cleanse heavy metals can be
found at www.rxvitamins.com, www.advancedbionutritio-
nals.com, www.scienceformulas.com. www.qnlabs.com.
and www.drnatura.com.
10. Walk for one hour, outside, every day.
11. Eat! Always eat breakfast, eat something six times per day,
and finish your dinner three and one-half hours before you
go to bed. Avoid eating a huge meal as this overtaxes the
hypothalamus.
12. Eat protein before bed. On occasion eat 100 grams of orga-
nic beef, veal, chicken, turkey, or fish right before bed.
13. Take Acetyl L-Carnitine. This helps turn fat into fuel.
14. Eat a minimum of one organiC apple every day.
IS. Eat organiC grapefruits as yOU desire.
16. Have a big salad with lunch and dinner (made with organic
ingredients).
17. Add organiC hot peppers and cinnamon as often as possible.
18. Use organic virgin coconut oil as often as possible.
19. Use organic raw apple cider vinegar as often as possible.
20. Sleep eight hours per night; ideally, betwe"n 10:00 p.m. and
6:00 a.m.
21. Drink organic Yerba Mate tea, chamomile tea, Wu Long tea,
and green tea liberally.
22. Every day take a whole food supplement, probiotics, Vita-
min E, and krill oil.
23. Use stevia as your sweetener of choice.
24. Get sun on a regular basis.
25. Use an infrared or conventional sauna as often as possible.
26. Use a rebounder as often as possible.
27. Do yoga as often as possible.
110 Tiu! Weight Loss Oure "They" Don't Want You to Know About
28. Do resistance training, such as weight lifting, as often as
possible.
29. Take digestive enzymes with food.
30. Take AlphaCalm as needed.
31. Listen to stress reducing CDs often.
32. Reduce exposure to florescent lights and air conditioning.
33. Limit ice cold drinks.
34. Get massages often.
35. Use a Q-Link, E-Pendant, and/or Biopro for neutraliZirig
electromagnetic chaos.
36. Limit carbonated drinks.
37. Limit non-prescription, over-the-counter, and prescription
drug use.
38. Use deep breathing techniques on a regular basis.
The follOWing items must be avoided at all costs as they will
quickly and easily make you gain weight:
39. No super highly refined sugars. These include high fructose
com syrup, com syrup, sucrose, and dextrose.
40. No genetically modified food. If it doesn't say 100% organic,
it is probably genetically modified.
41. No artificial sweeteners. This includes NutraSweet, Splenda,
aspartame, sucrolos, and others.
42. No trans fats. This includes hydrogenated or partially
hydrogenated oils.
43. No monosodium glutamate.
44. No food with nitrites.
45. No meat, poultry, or dairy that is not 100% organiC. All meat,
poultry, and dairy that is not 100% organic is loaded with
growth hormones, antibiotics, and other drugs. These abso-
lutely cause weight gain and other physical and emotional
problems.

Exhibit E


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