Trudeau Criminal Case Document 157-0-4 Trial November 2013

GIN Network Truth (the smart group)
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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
UNITED STATES OF AMERICA, )
)
Plaintiff, )
)
v. ) No. 10 CR 886
)
KEVIN TRUDEAU, ) Chicago, Illinois
) November 5, 2013
Defendant. ) 1:30 o'clock p.m.
VOLUME 1
EXCERPT OF PROCEEDINGS
BEFORE THE HONORABLE RONALD A. GUZMAN, AND A JURY
APPEARANCES:
For the Plaintiff: HON. ZACHARY T. FARDON
United States Attorney
BY: MR. MARC KRICKBAUM
MS. APRIL M. PERRY
Assistant United States Attorneys
219 South Dearborn Street
Suite 500
Chicago, Illinois 60604
(312) 353-5300
For the Defendant: WINSTON & STRAWN LLP
BY: MR. THOMAS LEE KIRSCH II
35 West Wacker Drive
(312) 558-5600
MS. CAROLYN PELLING GURLAND
Attorney at Law
2 North LaSalle Street
17th Floor
(312) 420-9263
Case: 1:10-cr-00886 Document #: 157 Filed: 12/09/13 Page 1 of 39 PageID #:1498
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APPEARANCES (Cont'd):
Court Reporter: MR. JOSEPH RICKHOFF
Official Court Reporter
219 S. Dearborn St., Suite 1222
(312) 435-6890
* * * * * * * * * * * * * * * * * *
PROCEEDINGS RECORDED BY
MECHANICAL STENOGRAPHY
TRANSCRIPT PRODUCED BY COMPUTER
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Krickbaum - Opening Statement
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(Proceedings heard in open court:)
THE CLERK: 10 CR 886, United States vs. Kevin
Trudeau.
* * * * *
OPENING STATEMENT ON BEHALF OF PLAINTIFF
BY MR. KRICKBAUM:
In 2006 and 2007, the defendant, Kevin Trudeau,
willfully violated an order of the United States District
Court for the Northern District of Illinois. And when the
defendant violated that court order, he was in contempt of
court; and, that's why we're here today.
Now, throughout the course of this trial, you will
learn that the defendant was an author and a salesman. He
wrote books, and he sold those books through infomercials,
which are commercials that you sometimes see on television
late at night or in the early hours of the morning.
And in 2004, you will learn that the defendant
settled a lawsuit with the Federal Trade Commission, which is
a government agency. And as part of settling that lawsuit,
the defendant agreed to abide by a court order; and, that is
the court order that is at issue in this case.
The defendant signed that order, and he agreed that
he would follow all of its provisions. And there are several
different provisions that the order had, but one of those
provisions will be relevant to this case. And that provision
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said that if the defendant made infomercials in which he
promoted a book, the infomercial could not misrepresent the
content of the book. That's the key language: The
infomercial could not misrepresent the content of the book.
Another way to say it is that the infomercials had to
accurately reflect what was in the book.
Unfortunately, the defendant did not comply with that
court order, and, in 2006 and 2007, he willfully violated that
order by making infomercials that misrepresented the content
of his book, which was called The Weight Loss Cure Protocol
They Don't Want You to Know About.
Let's talk for a minute about what was in that book.
Excuse me. I think I misstated the name of the book
itself. It was called The Weight Loss Cure "They" Don't Want
You to Know About.
So, let's talk about what was in it.
The defendant called the book a cure, but you will
see that what it really was was a diet. And that diet had
four different phases to it, and you'll hear more about those
phases as the trial goes on.
For at least three weeks of that diet, you were
limited to eating only 500 calories per day. The diet is, you
will see, loaded with restrictions. Foods that you cannot
eat.
You will also see that the diet is loaded with
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requirements, things you have to do: Exercise, pills and
cleanses, and supplements that you have to take. And you will
see that many of these requirements and many of these
restrictions last for the rest of your life.
But you will also see that when the defendant
promoted his book in those infomercials, he told a very
different story. You will see he didn't tell people what was
actually involved in the diet contained in the book. He told
listeners that he had a weight loss cure. He told them it was
not a diet. He said there was no exercise required. And he
said that when you finish with this cure, you can eat anything
you want and never gain the weight back.
And the evidence in this trial will show that when
the defendant made those statements in his infomercials, he
lied about what was in his book. He chose to make his book
sound way better than it really was. And he did that for a
simple reason: So that he could sell more books and so that
he could make more money.
He also did that knowing that a federal court had
ordered him not to misrepresent the content of his book. And
when the defendant willfully violated that order, that is when
he was in contempt of court. And that is what he is charged
with in this case: Contempt of court. And that is the charge
that we, the government, have the burden to prove beyond a
reasonable doubt.
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Now, I want to take a minute to address a few things
that this case is not about. This case is not about whether
the defendant's diet was effective. I can let you in on a
secret. If you only eat 500 calories a day, you will lose
weight. That's not what this case is about.
This case is not about whether the diet is safe.
It's not about whether it's recommended. It's not about
whether it's a good idea. Those are not the issues.
The issue is whether the defendant's infomercials
accurately represented what was in the book. Did the
defendant tell the truth in those infomercials about the book
or did he misrepresent the content of the book? Did he
willfully violate that court order and was he in contempt of
court? That's what this case is about.
And I want to take a few minutes to explain to you in
a little bit more detail how the government is going to prove
the charge in this case beyond a reasonable doubt.
First, let's talk about the infomercials.
There are three infomercials that the defendant is
charged with making, and they were on television in 2006 and
2007. You will see them during this trial. And when you
watch those infomercials, you will see the defendant making
fantastic claims about his book.
You'll hear him say that the weight loss cure that's
in the book is not a diet, it's not portion control, it's not
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calorie counting. You will hear him say, "You'll have no
hunger. There is no deprivation. You can do it at home.
There's no exercise required. There's no crazy potions,
powders or pills. And when you finish the protocol,"
according to the defendant in the infomercials, "you can eat
anything you want and never gain the weight back."
Those are some of the things that you will hear the
defendant say in the infomercials. That's the dream that you
will hear him selling. But then you will see the reality.
And the reality is what is actually in that book.
You will get to see the book. We will go through it. And
after seeing the book, you will recognize the lies that the
defendant told about his book in those infomercials. I want
to talk about a few different examples.
So, first, in the infomercials, the defendant says
what's contained in the book is not a diet, it's not portion
control, it's not calorie counting. But then in the book --
in Phase 2 of the book -- it says that you can only eat, as I
said before, 500 calories a day; you have to measure the
portions of the food you eat; and, you can only eat food from
a very restricted list.
You can have coffee. You can have tea. You can have
two pieces of meat that are each about the size of a deck of
cards. You can have two handfuls of vegetables. You can have
one small apple. You can have one small grapefruit. And you
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can have water. And that's it. That's all you get all day,
every day, for at least 21 days. And that's set forth in
Phase 2 of the book: A diet, portion control and calorie
counting.
Another example: In the infomercials, the defendant
says that no exercise is required. But then in the book, the
defendant says that you must walk for one hour outside every
day for the rest of your life. Exercise.
Another example: The book describes a substance that
you have to take as part of this protocol. It's called hCG.
And according to the book, hCG is a hormone. You can only get
it through a prescription from a doctor. It has not been
approved for weight loss in the United States. And you have
to inject it into your body with a needle at least 21 times.
Every day for at least 21 days. That's what the book says
about hCG.
So, what does the defendant say about hCG in those
infomercials? Nothing. He never mentions hCG in those
infomercials. He never says that you have to inject it in
your body; that you can only get it from a doctor's
prescription; that it's not been approved for weight loss.
In one of the infomercials, the defendant says
nothing at all about any substance that you have to take as
part of this diet. In a second infomercial, he mentions a
substance in a single sentence; provides no details about it.
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And in a third infomercial, here's what the defendant
says about this substance. He says, "It's an all-natural
miracle substance and you can get it anywhere." This is what
the book describes as a hormone you inject into your body and
you can only get from a doctor's prescription.
That is the difference between the book and the
infomercials. That is a difference.
Now, I want to address an important point about the
infomercials that, I think, you will see throughout this
trial, and that is this: Most of what the defendant says in
those infomercials is in the book in some form or another.
What do I mean by that? Well, let me give you a couple of
examples.
When the defendant says in those infomercials that
this is not a diet, he repeats that in places in the book.
And when he says no exercise is required, he repeats that in
the book. Or you can eat anything you want. There are
sentences in the book that say that, as well. There's no
disagreement about that. We agree those things are in the
book.
But the important point is that the defendant is not
charged in this case with misquoting a book. The government's
case is not about him not putting the right sentences in his
book from the infomercials. He is charged with
misrepresenting the content of his book.
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And the evidence will show that in the book, after
the book says it's not a diet, the book then lays out what the
book itself calls a very strict and specific diet. That's
what the book calls it. And, then, the book lays out the
500-calorie limit, measuring your portions, only eating those
small quantities of food.
After the book says there's no exercise required, the
book then says that you have to walk outside for an hour every
day for the rest of your life.
And perhaps the best example of this, in the
infomercials, the defendant says when you finish this
protocol, you can eat whatever you want and not gain the
weight back, period, end of story.
In the book, the defendant says when you finish this
protocol, you can eat whatever you want and not gain the
weight back; and, then, in the very next sentence, the book
says, "But you can only eat 100 percent organic food."
And, then, after that, it lists more things that you
can never eat, again: No fast food; no food from chain
restaurants; no brand-name food; no white sugar, either by
itself or as an ingredient in something else; no medication.
No prescription medication and no over-the-counter medication,
including an aspirin.
Ladies and gentlemen, the evidence in this case will
show that the book and the infomercials are not the same. And
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the evidence will also show that in those infomercials, the
defendant deceived people about what was contained in his
book.
Now that you've heard a little bit about what this
case is about, I want to talk for just a few minutes about
some of the evidence that the government will use to prove the
charge in this case beyond a reasonable doubt. There are
several different types of evidence that you will hear and
see. You will see exhibits. Some of them will be documents.
Some of them will be photographs.
You will see and hear stipulations, which is just a
word for agreements between the parties that certain facts are
true. You will hear about those agreements.
But the government's case is really going to come
down to two main pieces of evidence, and you can probably
already guess what they are: The book and the infomercials.
That's what the government's case is about.
You will get to see the book. As I said, we will go
through it together. We will look at large portions of it
together. And you will get copies of the book during your
deliberations, I expect.
You will also get to watch the infomercials, all
three of them. And after seeing the book and watching the
infomercials, you will be able to decide whether in those
infomercials the defendant told the truth about that book or
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whether the defendant misrepresented that book.
And in addition to seeing the book and watching the
infomercials, you will also hear from a dietician, an expert
in the field of nutrition. And she will talk some about what
is actually involved in this diet.
So, for example, you'll get to see what 500 calories
of food actually looks like. You'll get to see what the
portions of meat and vegetables that you're allowed to eat
look like. And the dietician will also explain to you some of
the types of foods that the defendant's diet prohibits a
person from ever eating, again.
And after you've heard that evidence, you can decide
whether the defendant told the truth in the infomercials when
he said this was not a diet, when he said that you can eat
anything you want with no restrictions.
I expect that the government's case will be a
straightforward one. And I expect the evidence will show that
when the defendant made those infomercials, he lied about the
content of his book. He lied about it so that he could sell
more books and so that he could make more money. And when he
did that, he misrepresented the content of the book and he
willfully violated that court order and he was in contempt of
court.
That's what I expect the evidence to show.
And because of that evidence, at the end of this case
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Kirsch - Opening Statement
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in our closing argument, the government will stand in front of
you, again, and we will ask you to find that the defendant is
guilty of criminal contempt.
Thank you very much.
THE COURT: Counsel.
MR. KIRSCH: Yes, your Honor.
Can you turn the power point on, your Honor, please.
(Brief pause.)
OPENING STATEMENT ON BEHALF OF THE DEFENDANT
BY MR. KIRSCH:
May it please the Court.
Counsel, ladies and gentlemen of the jury.
My name is Tom Kirsch and, along with Carolyn
Gurland, we'll be representing the defendant, Kevin Trudeau,
throughout the course of the trial.
So, you've now heard the government's opening
statement. So, what does that mean? That means you have
heard half the story. And I'm going to tell you what I think
the other half of the story would be.
In our lives -- when we make important decisions in
our lives or when we make even unimportant decisions in our
lives, it's usually important to hear both sides of the story
before we make that decision. I have little kids and if one
of my kids came running down the stairs and said, "Dad, Nick
hit me," well, if I punish Nick based upon what Jack had just
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told me, I might be punishing the wrong kid.
So, in our lives, we like to hear the full side of
the -- both sides of the story before we make important
decisions. And I suspect, ladies and gentlemen -- I represent
to you, this is the most important thing in his life. So, I
ask you to keep an open mind, as the Judge instructed you to
do.
So, what is this case about? I think we agree on
what the issue in the case is going to be. The government
contends that it's going to prove beyond a reasonable doubt
that Kevin Trudeau willfully represented the content of his --
or willfully misrepresented the content of his -- book in paid
television advertisements in 2006 and 2007.
Ladies and gentlemen, it's our defense to this charge
that he did not willfully misrepresent the content of the
book. Rather, the representations that he made in the
infomercials, of which the government complains, are written
right in the book.
The government talked to you a lot about the fact
that Trudeau called the weight loss protocol a cure in the
infomercial. And the government takes issues with that, the
fact that he called it a cure in the infomercial. Ladies and
gentlemen, the title of the book is The Weight Loss Cure
"They" Don't Want You to Know About.
So, it's our defense that the representations made in
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the infomercial were also in the book. And I'm going to go
through every single one of them with you. Not only in my
opening statement, but during the course of the trial. I'm
going to go through every single one of them.
And, ladies and gentlemen, they were statements of
opinion.
Now, the government didn't talk to you about certain
things that I'm going to talk to you about during my opening
statement. So, I suspect I'm going to talk to you a little
bit longer than the government lawyer talked to you, because I
want you to know additional things.
What is it that the government is going to have to
prove in this case? There's three elements that the
government is going to have to prove. They have to prove each
element beyond a reasonable doubt.
Number one, that there was a reasonably specific
order that was entered by a judge.
And I'm going to go through exactly what that order
says. The government referenced the order. Ladies and
gentlemen, it was a 29-page order. One clause is at issue
here. About six words are at issue.
The second requirement that the government has to
prove is that Trudeau violated the order by misrepresenting
the content of his book. So, they have to prove that he
misrepresented: What he said in the infomercial, different
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than what he said in the book.
The third thing they have to prove is that he did it
willfully. So, they have to prove that he knew or reasonably
was aware that his conduct was wrongful. It's not just that
he made misrepresentations, but that he did it willfully.
That's what they have to prove.
Now, ladies and gentlemen, I'm going to touch on
this, and then I'm going to move on. The Court has instructed
you twice now about the three basic rules upon which our
entire criminal justice system is based.
The presumption of innocence. The defendant is
presumed innocent. That's Rule No. 1. As he sits here, he's
presumed innocent. That presumption of innocence does not
leave him unless the government proves each of those three
elements beyond a reasonable doubt.
The second element is that the burden of proof never
leaves -- never leaves -- this table (indicating). Never.
The Court indicated to you I don't even have to give
an opening statement. I don't have to cross-examine the
government's witnesses. I don't have to call witnesses in the
defense. And I don't even have to give a closing argument.
And the government would still be required to prove to you
beyond a reasonable doubt each of those elements.
And the third rule that the Court discussed with
you -- ladies and gentlemen, again, these are the rules that
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have been the bedrock of our criminal justice system for over
200 years -- is that the government must prove its case beyond
a reasonable doubt. That is a very heavy burden, but that is
the burden that our system of justice requires when the
government hauls somebody into court and requires them to
answer charges, the consequences of which could have a
devastating effect on their lives.
Ladies and gentlemen, I'm going to talk to you over
the course of the next half hour or so about what I believe is
substantial evidence that will show that the defendant did not
willfully misrepresent the content of his book in The Weight
Loss Cure infomercials.
The first thing that I'm going to talk about is
that -- and I already mentioned this to you, is that -- the
representations in the infomercials were in the book. And I'm
going to show you the representations that the government
compares -- complains -- about, and I'm going to show you some
examples of the references in the book. But you're going to
see those over and over and over, again, during the course of
the trial, particularly when I cross-examine the government's
agent -- witness.
Second, the representations in the infomercial
included Trudeau's views and opinions. He's an author, ladies
and gentlemen. He wrote a book. He has views and opinions,
and they're in the book and they're in the infomercial.
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Three -- the government didn't mention this company
at all, but I'm going to talk quite a bit about this
company -- there's a company called ITV. They owned a company
called Shop America. And when you watch the infomercials, pay
attention to that because it's ITV -- not Trudeau, it's ITV --
that exclusively produced the infomercials and marketed the
book through those infomercials.
Now, ladies and gentlemen, you'll see the
infomercials, and you'll see the multiple disclaimers that ITV
put in those infomercials, including that they were paid
advertisements -- and I'm going to show you those
disclaimers -- and that you should consult your doctor before
acting on any of the recommendations.
Now, another thing that the government didn't mention
to you that I'm going to talk to you about, ladies and
gentlemen, is that full refunds were available to customers
that wanted one. If you bought a book from ITV and you wanted
a refund, you got one.
Now, the government said in its opening statement
that Trudeau misrepresented -- willfully misrepresented -- the
content of his book in the infomercial because he was
motivated by profit. But if somebody bought the book and they
didn't like it, they got a refund. Not much profit when you
give somebody a refund.
Now, as the prosecutor indicated to you, there are
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numerous facts, ladies and gentlemen, that are not at issue in
this case -- and I just want to walk through some of them --
or not in dispute.
First of all, in the 2004 consent order, which I'm
going to show you -- I'm going to show you; you're going to
have back in the jury room; you can read every word of it, all
29 pages in it -- nowhere in that consent order did Trudeau
admit any wrongdoing. Nowhere.
Now, the government also told you that the
effectiveness of the protocol described in the book is not at
issue. It's not -- you're not going to be asked to decide
whether it's wise or whether other folks should do it or
whether you would or would not lose weight if you did the
protocol. That's not at issue at all in this case.
Now, again, you'll see -- and there will be a
stipulation to this effect. I tell you, in the infomercial
you're going to hear Trudeau say -- and listen for these words
-- "In my opinion, I believe," several times. But Trudeau was
permitted under the 2004 consent order -- and the government
agrees -- that he could state his views and opinions in the
infomercial.
I suggest to you, ladies and gentlemen, that when you
say "in my opinion," that is an opinion. And he could do
that, as long as he didn't misrepresent the content of the
book. But if what he said was also in the book and he's
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expressing it as an opinion, I think that's not going to be an
issue in the case; we're not going to be arguing it.
And, ladies and gentlemen, the truth or falsity of
the book is not an issue in the case. That is a very
important point, and I put it down here (indicating) in red.
When you see this book, you may disagree with every
single word in the book. It doesn't matter. It doesn't
matter. The question is whether Trudeau willfully
misrepresented the content of the book in the infomercial, not
if you agree with what was in the book.
In America, we can write whatever we want in books.
I could write a book arguing that the moon is made of cheese,
and there's nothing wrong with that. You can write whatever
you want in a book. So, the question is not whether what was
written in the book is true or false. It's only whether he
misrepresented the content of the book in the infomercial.
Now, let's talk a little bit about this 2004 consent
order that Trudeau is alleged to have willfully violated.
A consent order is like a contract. It's a
negotiation between two parties. In this case, a negotiation
between Trudeau and the FTC -- the Federal Trade Commission.
Some of you may have heard of the Federal Trade Commission.
They're a government regulatory office that is in Washington.
And you'll hear it throughout the trial referred to as the
FTC. It's the Federal Trade Commission.
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And it's signed by a judge. It wasn't Judge Guzman.
It was a different judge -- Judge Gettleman -- and you'll see
his signature on the paper.
Trudeau did not admit any wrongdoing when he entered
into the consent order. I already told you that.
The consent order allowed Trudeau to write whatever
he wanted to in a book. If he wanted to write a book that
said the moon is made of cheese, he could do it. Anybody can
do that. Anybody can do it.
The consent order also allowed Trudeau to state his
opinions and his views in his infomercials. I talked about
that for -- a minute ago.
And among those 29 pages in that consent order, which
I'm going to talk about in some detail, the order provided
that, quote -- this is all it said on this subject -- "The
infomercial for any book must not misrepresent the content of
the book." That's what it said. That's what the order said.
Now, I'm going to walk through just very briefly with
you some of the major participants that are involved in this
case and tell you a little bit about them, starting with my
client, Kevin Trudeau.
Kevin is 50 years old. He's 50 years old this year.
Ladies and gentlemen, he is a New York Times No. 1 best-
selling author. That means not just that his books made the
New York Times Best Seller List, but that they were No. 1 on
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the New York Times Best Seller List.
He is a motivational, self-help speaker. He is a
natural health advocate. You'll see that in the book. He's
very much into natural cures and natural health advocacy. And
he's an author. He's authored several books.
Now, ladies and gentlemen, you are going to see in
this book -- I have on the screen here that he's made
statements in the past critical of government censorship and
large corporations.
Ladies and gentlemen, he is very critical of the
government. He is very critical of the FDA.
He is critical of large corporations, including food
companies that -- the ones that are putting ingredients and
the chemicals in your food. He is very critical of these
entities, and you're going to see that come through in his
book.
He's critical of the government in many respects.
He grew up in Massachusetts, and he spent most of his
adult life here living in the Chicagoland area.
ITV. ITV is the company that I told you about that
exclusively produced and marketed the infomercials that are
the subject of this lawsuit. ITV is a direct response
marketing company that's located in Massachusetts, outside of
Boston. They specialized in producing and marketing
television infomercials in the live interview format. You're
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going to see that the infomercial, Trudeau is sitting at a
couch or a table with somebody else and it's an interview
format infomercial.
ITV exclusively produced and marketed The Weight Loss
Cures book. They were the one that sold the book. And I'm
going to show you here their refund policy. They offered
refunds to any customers who wanted a refund.
The Federal Trade Commission, I told you, is a large
agency of the United States government located in Washington,
and they regulate advertising. They're represented by lawyers
in courts in civil litigation. This is a criminal case.
That's totally different than a civil case.
The consent order was entered into in a civil case,
not a criminal case. The FTC lawyers, they signed that
consent order. They represent the United States government in
federal courts just like the U.S. Attorney's Office does, only
they do it in civil cases. The U.S. Attorney's Office does it
in criminal cases.
And like I said, they were one of the two parties
with Trudeau to the negotiated consent order in 2004.
I want to talk to you a little bit about The Weight
Loss Cure "They" Don't Want You to Know About, and I'm going
to tell you a little bit more about the book than, I think,
the government did. It was published in 2007. The book
describes -- largely describes -- Trudeau's weight loss story.
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By the way, just so you know, this weight loss
protocol that's described in the book, this is not Trudeau's
weight loss protocol, and I'm going to talk to you about that.
But there are four phases to the weight loss
protocol. When the government was talking to you about
exercise, you can eat all you want, they did not distinguish
between what is recommended in the book and what is required
in the weight loss protocol. And I submit to you that that is
a big distinction.
Phase 1. I submit to you most of the government's
evidence is going to be on Phase 1 of the diet -- or the
protocol -- which is the first 30 days. It's entirely
recommended. It's just recommended. It's not required. You
can start with Phase 2 if you want to. And, then, lists --
Phase 1, which is recommended, lists -- if you're going to do
Phase 1, it lists a bunch of dos and bunch of don'ts, but it's
recommended.
Phase 2 and 3 is the protocol itself. Phase 2 and 3
is a weight loss protocol developed in the 1950s by a medical
doctor -- a British medical doctor -- named Dr. Simeons. And
you're going to see all kinds of references to Dr. Simeons in
the book. Dr. Simeons is the one who came up with the weight
loss protocol, not Trudeau. This is not his weight loss
protocol.
Phase 4. The government talked a lot about Phase 4.
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You can eat whatever you want for the rest of your life and
not keep -- and keep the weight off. If you want to do that
in Phase 4, Phase 4 is recommended. It contains suggestions.
And you're going to see the quotes. And, then, if you want to
do Phase 4 and keep the weight off for the rest of your life,
it contains several dos and don'ts.
But it's important to remember and to distinguish
when the government is talking about the book what is required
under Simeons' weight loss protocol in Phases 2 and 3 and what
is recommended in Phases 1 and 4.
Now, Trudeau advertised this book in infomercials,
which we all know; and, you're going to see the infomercials
in court.
Ladies and gentlemen, I think and I submit to you --
I submit to you -- and I want you to consider these things as
you hear the evidence in the case -- I submit to you that the
evidence is going to show five critical facts in this case
that will prevent the government from meeting its burden of
proof of proving that my client willfully misrepresented the
content of the consent order beyond a reasonable doubt. I'm
going to walk through each of these with you briefly.
The first one is Trudeau did not misrepresent the
content of the book. Remember, the order said you can't
misrepresent the content. Well, the representations in the
infomercial were in the book. They were in the book. And I'm
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going to show you that.
So, the first fact that the government can't prove,
that Trudeau misrepresented the content of the book in the
infomercial, is because he didn't. What he said in the
infomercial is in the book.
The second fact -- I mentioned this before -- is that
it contained his views and opinions. The infomercial contains
his views and opinions, which is permitted under the 2004
consent order.
I think the evidence is going to show that ITV was
the company that exclusively produced and marketed the book.
And I have two little sub-points here, that ITV made the
decision to air the infomercials and was aware of and in
possession of the consent order when they did it.
So, think about that, ladies and gentlemen. The
defendant is charged with willfully violating a consent order
by misrepresenting the content of a book in an infomercial. I
think the evidence is going to show to you that ITV produced
and distributed the infomercial. ITV, a company located in
Massachusetts. And when they did it, they had the consent
order. They knew exactly what the consent order said about
prohibiting anybody from willfully misrepresenting the content
of a book in an infomercial.
And, ladies and gentlemen, I submit to you the
government is not going to call a single witness, not one,
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who's from ITV. Not one person from ITV is going to testify
that anybody at ITV told Trudeau that the infomercials
violated the consent order when they produced them and
marketed them.
The fourth fact is what I mentioned to you before:
The Weight Loss Cure infomercials contained several
disclaimers, which I'm going to show you.
And the fifth fact is that ITV policy allowed full
refunds to customers that wanted one.
So, I'm going to take the first two facts together,
that the representations made in the infomercials were in the
book and that they were statements of opinions.
Now, ladies and gentlemen, the government's position
is that the representations in the infomercial were not in the
book and they misrepresented the content of the book.
Our position, as I told you, is that the
representations were in the book and that they were his views
and opinions. So, the infomercial did not misrepresent the
content of the book, and Trudeau was permitted to state his
views and opinions, which I've mentioned.
Now, I'm going to talk to you about some of the --
and I'm going to go -- I'm not going to -- I'm going to go
through these slides so you can see them. I'm not going to go
through every quote on every slide. I'll have a chance to
address you, again, in closing argument, and I will. And
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that's when I'll do it. And I'll do it through the
cross-examination of the government agent.
But if I went through every quote in the book that
was consistent with what was in the infomercial, we'd be here
for hours. And nobody wants to be here for hours.
But the first complaint that the government has is
that Trudeau misrepresented the content of his book in the
infomercials when he described the weight loss protocol as a
cure. If you see on the left-hand side of the screen, that's
the government's allegation: That the statement that the
weight loss protocol was a cure misrepresented what was in the
book. And, then, the government has other similar allegations
with respect to that one allegation.
Well, here are some quotes from The Weight Loss Cure
book. First of all, as I mentioned to you, the title of the
book is The Weight Loss Cure "They" Don't Want You to Know
About. So, the government has alleged he misrepresented the
content of the book in the infomercial by calling it a cure
when the title of the book is The Weight Loss Cure.
But throughout the book, there are dozens of
statements similar to ones that I've quoted on the screen.
"The Weight Loss Cure is not a diet," "not an exercise
program." You see the second sentence: "The Weight Loss Cure
addresses and corrects the physiological cause of obesity,
weight gain, the inability to lose weight."
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The third bullet point: "This weight loss cure
protocol does, in fact, cure and correct these problems."
The fourth bullet point: "You will be cured."
Now, ladies and gentlemen, these quotes are not
quotes from the infomercial. They're quotes from the book.
So, remember the government has alleged that when he called it
a cure in the infomercial, he misrepresented the content of
the book. The quotes are all from the book, where he calls it
a cure dozens of times.
The government -- one of the allegations in the
protocol is inexpensive. But I'm going to skip over that for
now because I want to talk to you about what the government
talked about in its opening statement particularly. But
you'll see -- you're going to see all of these in some great
detail.
No exercise is required. Trudeau, in the
infomercial, said this is not an exercise protocol. It's not
an exercise protocol.
And throughout the book, he talks about -- and these
are the quotes: "The Weight Loss Cure is not an exercise
program."
"No exercise is required."
"No exercise is required."
"Although exercise is encouraged, you do not need to
exercise."
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"There's no hunger or feeling of deprivation during
the treatment. No exercise was required."
Over and over in the book, he talks about no exercise
being required.
Now, the government mentioned to you after the
protocol is finished, you can eat whatever you want. The
government talked about that in some detail. And remember, I
told you Phases 2 and 3 are the protocol. Phase 4 is after
the protocol is complete, and it's suggestions and
recommended.
But throughout the book, he talks about no
restrictions. It does not mean you'll be restricted to
certain types of food. "You'll be cured." "When you're
finished, you'll be able to eat any kinds of food you want."
And, ladies and gentlemen, you're going to hear about
the cure. The cure basically talks about resetting your
hypothalamus gland and also increasing metabolism. So, what
it does is it makes you less hungry so you eat less, and then
it speeds up the processing of the food. That's the idea of
Simeons. This is not Trudeau. This is Simeons' weight loss
cure.
But the idea is to make you fuller faster and then to
make you -- your metabolism -- speed your metabolism so you
break down the food faster. So, you eat whatever you want;
you're just going to eat smaller. You're going to get hungry
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faster. Instead of eating three pieces of pizza, you're going
to eat two.
Now, Mr. Krickbaum talked about the organic food.
You remember during his opening statement he mentioned that
Phase 4 requires you eat a hundred percent organic food and
that that was somehow an alleged misrepresentation. Well, I
think the evidence -- I got the book, and the book is going to
be in evidence. I think the evidence is going to show the
following: That Trudeau, in the book, wrote, "The simplest
rule to follow is to eat anything you want, as much as you
want, as often as you want. The only caveat is only eat a
hundred percent organic food."
The next sentence is irrelevant.
The very next sentence after that, Trudeau writes,
"In real life, in the real world, eating only 100 percent
organic food can be next to impossible." He recognizes that
right in the book.
And, then, he says, "Basically, then, what you work
to achieve is to avoid as best you can the man-made
ingredients that cause obesity." That's what Mr. Trudeau said
in the book.
So, although the government is right that he said you
have to eat a hundred percent organic food, in the very next
phrase he recognizes that may be impossible; and, if it is,
just avoid the man-made ingredients that cause obesity.
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The protocol is not a diet. That was one of the
things that the government talked about in its opening
statement. What you're going to see time and time, again, in
the book -- the references to "The Weight Loss Cure is not a
diet"; "although it's not a diet"; "the simplest rule you
follow is to eat anything you want. It's not a diet."
So, over and over in the book, he says it's not a
diet.
The next one that Mr. Krickbaum talked about is hCG.
And, ladies and gentlemen, I'm just going to talk very briefly
about hCG. hCG is a hormone. It's produced -- it's a natural
hormone. It's produced in women during pregnancy. Their body
produces hCG. In fact, it's a common treatment for women who
are going through infertility treatment. hCG is a common
treatment. It comes in a powdery substance. You mix it with
water. It's a very small amount. You take a syringe, you
pull it up, and then you inject it in your butt. That's what
you do. That's hCG.
So, Trudeau talks about it as being a natural
substance, and he talks about miracle all-natural substances
that you use during the weight loss protocol. Well, it is a
natural substance. There will be no dispute about that.
But, ladies and gentlemen, I want to talk to you
about the last bullet point here on the screen.
The government says Trudeau didn't mention hCG at all
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in the infomercial, and they say that by not doing that, he
willfully -- willfully -- he knew it was wrong -- he willfully
misrepresented the content of the book. But in multiple
passages in the book, he tells you that if hCG is unavailable
to you, if you don't want to use hCG, there's an alternative.
And I can think of three places off the top of my
head when he says that in the book. When I cross-examine the
government agent, I'm going to show you all three of them.
So, he talks about a substitute for hCG, and that will be the
evidence.
Now, I want to talk to you briefly about ITV.
That takes me through Points 1 and 2 of my five
facts.
I want to talk to you about ITV and their decision to
air the infomercials.
Ladies and gentlemen, this is what the evidence will
be on that. The evidence will show that the parties -- that's
the government and the defense -- we all agree that ITV
exclusively produced and marketed The Weight Loss Cure's
program. It's not in dispute. ITV produced it. ITV marketed
it. That's not in dispute.
It's also not in dispute that at the time they did
so, they were aware of and in possession of the 2004 court
order. ITV produced the infomercial. They marketed the
infomercial. And they had the court order -- the 2004 consent
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order -- when they did it. And, then, I told you earlier
there's no evidence that anyone at ITV told Trudeau that the
infomercial violated the court order.
No. 4, the disclaimers. Remember I told you there
were disclaimers. And you're going to see these disclaimers
while the advertisement is shown to you -- while the
infomercials are shown to you. There could be no dispute as
to what this was. There's no dispute as to what the
infomercial did. You're going to see -- I can read that to
you -- the disclaimer that came on: "The following is a paid
advertisement for The Weight Loss Cure brought to you by Shop
America."
Remember I told you Shop America is a company that
was owned by ITV. There was a stock purchase agreement
sometime in the summer of 2006. And Shop America was sold --
Trudeau signed on behalf of Shop America, sold the company to
ITV. So, ITV -- there's no dispute ITV owns Shop America.
And Trudeau never owned ITV or anything like that.
He sold some subsidiary -- or some small entities in which he
was a manager. He signed -- you're going to see the consent
order.
But ITV owned Shop America. ITV was the one that
produced and distributed the infomercial. No dispute about
that.
The next disclaimer you're going to see is: "It is
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recommended that you consult with a licensed medical doctor or
physician before acting upon any recommendation that is made
in the book or in this paid advertisement."
Another disclaimer that's going to appear in the
infomercial: "Trudeau's weight loss cure has not been
approved by the Food and Drug Administration or any other
government agency."
He says that right in the infomercial.
"The following is a paid program."
"The preceding was a paid program."
Multiple disclaimers in the infomercial.
The fifth fact, and the last one that I'm going to
talk to you. Ladies and gentlemen, the government argued to
you that Trudeau was motivated by profit in misrepresenting
the content of his book because he wanted to sell more books.
But it's undisputed that ITV offered a refund to customers who
bought the book and didn't want it for any reason at all. If
they didn't like it, they didn't agree with it, they didn't
want it, they got a refund.
And this policy is going to be admitted in evidence.
This is a document that you're going to have back with you in
the jury room: "Your ITV product purchase comes with a 30-day
money back satisfaction guarantee that starts upon delivery of
this shipment. If you are not completely satisfied with your
purchase, contact our Customer Satisfaction Department Monday
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through Friday from 8:00 a.m. to 8:00 p.m. Eastern Standard
Time."
Now, you're going to hear Trudeau even in the
infomercial, he talks about how it's unconditionally
guaranteed. When he's talking about the book, "Buy the book
for $29.95 and I'll throw in all the other books that I wrote
on natural cures. It's unconditionally guaranteed. If you
don't like the book, if you don't want the book, you call and
send it back."
ITV had a policy where they offered refunds.
And, ladies and gentlemen, that's the end of my
opening statement. I'm coming to the end of my opening
statement, and you're going to see me and you're going to see
Ms. Gurland during the course of the government's case. We're
going to cross-examine the government's witnesses.
And, then, the government is going to do a closing
argument. They get to go first and they get to go last
because they have the burden of proof. But in between when
they go first and when they go last, I'm going to go back in
front of you and I'm going to give a closing argument.
But, ladies and gentlemen, I requested the very
beginning of my opening statement to please keep an open mind.
When you hear the direct examination of the government's
witnesses, don't form opinions and conclusions until you hear
my cross-examination of the government's witnesses. And the
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same with closing argument: Keep an open mind.
And I suggest to you, ladies and gentlemen, that you
please keep in mind these five critical facts which, I
believe, will prevent you from concluding that the government
has met its burden of proof beyond a reasonable doubt --
beyond a reasonable doubt -- on all three of the elements that
the government must prove.
And at the end of the case, ladies and gentlemen, I
will be back up here and I will ask you to return a not guilty
verdict as to Kevin Trudeau.
THE COURT: Folks, you have now heard the opening
statements of the attorneys. The next thing that happens in
sequence is the introduction of the actual evidence itself.
We will not begin that today. It is almost 4:00 o'clock. We
quit at 4:30. It would be almost counterproductive to do so.
We are going to let you go home today. Get a good
night's rest. Come back tomorrow at 9:30 sharp. We will
begin with the evidence in this case.
I want to remind you -- and I will try to do this
every day, but if I forget, the admonishment is still there
for you to follow -- you are not to read, listen to or view
any news reports or any other information about this case.
You are not to talk to anyone or discuss with anyone this
case, and if anyone should try to do so, you are to report
that to the Court.
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We begin tomorrow at 9:30 a.m. You know which bank
of elevators you are supposed to use.
Any questions?
(No response.)
THE COURT: Have a good evening. We will see you
tomorrow morning.
(Jury out.)
THE COURT: Be ready to begin tomorrow at 9:30.
MR. KRICKBAUM: Yes, Judge.
THE COURT: Okay.
THE COURT: All right.
Are there any issues that you foresee that we should
address now?
MR. KRICKBAUM: No, your Honor.
MR. KIRSCH: No, your Honor.
THE COURT: Okay.
Well, I am not going to require you to be here early,
but if between now -- as has happened several times during the
course of these proceedings, between now -- and tomorrow
morning you perceive an issue that needs to be addressed, do
not come at 9:30 and tell me you want to address it then. Let
the Court and opposing counsel know ahead of time and get here
early so we can do this without making the jury wait.
MR. KRICKBAUM: We understand, Judge.
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THE COURT: Okay. Have a good evening.
We are adjourned.
MR. KRICKBAUM: Thank you.
MR. KIRSCH: Thank you, your Honor.
(Whereupon, an adjournment was taken at 3:53 o'clock p.m.,
until 9:30 o'clock a.m., the following day, November 6,
2013.)
* * * * *
I certify that the foregoing is a correct excerpt from the
record of proceedings in the above-entitled matter.
/s/ Joseph Rickhoff November 5, 2013
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EASTERN DIVISION
)
Plaintiff, )
)
v. ) No. 10 CR 886
)
) November 6, 2013
Defendant. ) 9:30 a.m.
VOLUME 2
TRANSCRIPT OF TRIAL PROCEEDINGS
APPEARANCES:
MS. APRIL M. PERRY
Suite 500
(312) 353-5300
(312) 558-5600
Attorney at Law
17th Floor
(312) 420-9263
Court Reporter: NANCY C. LaBELLA
219 S. Dearborn Street
Suite 1222
(312) 435-6890
Case: 1:10-cr-00886 Document #: 157-1 Filed: 12/09/13 Page 1 of 159 PageID #:1537
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THE CLERK: 10 CR 886, United States of America v.
Trudeau.
MR. KRICKBAUM: Good morning, your Honor. Marc
Krickbaum and April Perry on behalf of the United States.
MR. KIRSCH: Tom Kirsch and Carolyn Gurland on behalf
of the defendant, your Honor.
Good morning.
THE COURT: Good morning. We are one juror short. I
believe that is a juror who has called in and indicated he is
stuck in terrible traffic and is still, I think at last call,
nine miles away.
MR. KIRSCH: Maybe we should just wait, your Honor.
THE COURT: I don't think we have much choice. So
we'll adjourn until that juror comes in, at which point the
parties are ready to proceed with the evidence?
(Recess taken.)
THE COURT: We have -- I'm sorry. Call the case
again.
Trudeau.
THE COURT: We have a full complement of jurors now,
so we are ready to proceed.
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MR. KIRSCH: Yes, your Honor. We're ready.
THE COURT: Let's bring out the jury, please.
(Jury in.)
THE COURT: Good morning.
Glad to have you back. We are ready to proceed with
the evidence.
Government.
MS. PERRY: The United States calls Silvia Carrier.
THE COURT: Please remain standing and raise your
right hand.
SILVIA CARRIER, GOVERNMENT'S WITNESS, SWORN
DIRECT EXAMINATION
BY MS. PERRY:
Q. Good morning.
A. Good morning.
Q. Could you please state your name and spell it for the
court reporter.
A. Silvia Carrier, S-i-l-v-i-a, C-a-r-r-i-e-r.
Q. What do you do for a living?
A. I'm a federal agent for the U.S. Postal Inspection
Service.
Q. And what does it mean to be a federal agent for the U.S.
Postal Inspection Service?
A. I investigate crimes involving statutes related to the
U.S. Postal Service and the U.S. Mail.
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Q. How long have you been a postal inspector?
A. 18 years.
Q. What did you do before that?
A. I was a support employee for the FBI.
Q. And what did you do prior to that?
A. I was a student.
Q. What's your educational background?
A. I have a bachelor's degree in criminal justice and a
master's in public administration.
Q. And do you have a particular assignment at the United
States Postal Inspection Service now?
A. I'm on the mail fraud team.
Q. What does that mean?
A. We investigate crimes involving -- anything where the mail
is used to commit fraud, such as documents being mailed or
products being sent through the mail is something that would
constitute mail fraud.
Q. All right. I'd like to start today by talking to you
about the court order that's at issue in this case. And I'm
going to hand you what's been marked as Government Exhibit 5.
MS. PERRY: And, Judge, I'd request permission to
publish a stipulation between the parties at this time.
THE COURT: Any objection?
MR. KIRSCH: No objection.
MS. PERRY: The parties agree that Government
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Exhibit 5 is an accurate copy of the September 2, 2004, court
order.
The parties agree that Government Exhibit 5 should be
admitted into evidence.
So stipulated?
MS. PERRY: At this time the government moves
Exhibit 5 into evidence.
THE COURT: Government Exhibit 5 may be admitted in
evidence without objection pursuant to the stipulation.
MS. PERRY: And, Judge, we request permission to
publish portions of that through the Elmo.
THE COURT: It may be published.
BY MS. PERRY:
Q. Inspector Carrier, I'd like to direct your attention first
to the first page of the court order, which I'm going to put
up on the screen.
And can you please tell me, according to this first
page of the document, who the parties were that were subject
to this court order?
A. Federal Trade Commission, plaintiff, versus Kevin Trudeau,
Shop America (USA), LLC, Shop America Marketing Group, LLC,
TruStar Global Media, Limited, Robert Barefoot, Deonna
Enterprises, Inc., and Karbo Enterprises, Inc., defendants,
and K.T. Corporation, Limited and TruCom, LLC, relief
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defendants.
Q. All right. And directing your attention to the very last
page of the court order, I'm going to be asking you who signed
this order, first, on behalf of the plaintiffs?
A. Heather Hippsley, Daniel Kaufman, Laura M. Sullivan, Peter
Miller, Federal Trade Commission.
Q. And on behalf of the defendants, how many signatures are
there on the right side of that page?
A. Three.
Q. And who signed on the first line?
A. Kevin Trudeau.
Q. And is that as a person or as a number of different
groups?
A. Both.
Q. Okay. So what's the first one?
A. Individually.
Q. And then what is the second signature?
A. Manager or director of Shop America (USA), LLC, Shop
America Marketing Group, TruStar Global Media, Limited, K.T.
Corp. and TruCom, LLC.
Q. And is there also a judge's signature on this particular
court order?
A. Yes.
Q. And whose signature is that?
A. United States District Judge Robert W. Gettleman.
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Q. All right. I'm going to direct your attention now to the
second page. And I'll ask if you can read just the portion
that is on your screen there?
Can you read that?
A. Plaintiff, the Federal Trade Commission, Commission, has
filed a complaint for permanent injunction and other equitable
relief, complaint, against Kevin Trudeau, Shop America (USA),
LLC, Shop America Marketing Group and TruStar Global Media,
defendants, and K.T. Corp. and TruCom, LLC, relief defendants,
pursuant to Section 13(b) of the Federal Trade Commission Act,
FTC Act, 15 U.S.C. 53(b), alleging deceptive acts or practices
and false advertisements, in violation of Sections 5(a) and 12
of the FTC Act, 15 U.S.C. 45(a) and 52.
Additionally, on June 9, 2003, the Commission moved
this court for entry of an order holding Kevin Trudeau in
contempt of the stipulated order for permanent injunction and
final judgment against Kevin Trudeau entered by this court on
January 14, 1998, in connection with civil No. 98-C-0168.
The Commission, defendants and relief defendants have
stipulated to the entry of the following stipulated final
order for permanent injunction and settlement of claims for
monetary relief as to defendants Kevin Trudeau, Shop America
(USA), LLC, Shop America Marketing Group, LLC, TruStar Global
Media, Limited, and relief defendants K.T. Corporation,
Limited and TruCom, LLC, order, in settlement of the
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Commission's complaint against defendants and relief
defendants and the Commission's civil contempt action against
Kevin Trudeau.
Q. All right. Now, I'm going to direct your attention to
page 8 of that particular court order and just ask you to read
the highlighted portion.
A. Additionally, the infomercial for any such book,
newsletter or informational publication must also comply with
the requirements of Part X herein and must not misrepresent
the content of the book, newsletter or informational
publication.
Q. All right. Now, moving away from the court order. Were
you asked to review a number of items in connection with your
work on this case?
A. Yes, I was.
Q. I'm going to hand you what's been marked as Government
Exhibits 1, 2, 3 and 4.
Do you recognize those documents?
A. Yes, I do.
Q. And what are Government Exhibits 1, 2 and 3?
A. Copies of three infomercials.
Q. And did you review those infomercials?
A. Yes, I did.
Q. And what is Government Exhibit 4?
A. A book.
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Q. All right.
MS. PERRY: At this time the government would like to
read two other stipulations, your Honor.
THE COURT: Before you proceed, let me simply advise
the jury.
Folks, a stipulation, which the attorneys have now
referred to, is nothing more than an agreement between the
parties that you may consider the facts in the stipulation as
being proven and true for purposes of this trial.
Go ahead.
MS. PERRY: Thank you.
It is stipulated between the parties that in 2006 and
2007, the defendant appeared in infomercials promoting his
book The Weight Loss Cure "They" Don't Want You to Know About.
Government Exhibits 1, 2 and 3 are accurate copies of
those infomercials.
Government Exhibit 1 aired, among other times, on
December 23rd, 2006. Government Exhibit 2 aired, among other
times, on January 8, 2007. And Government Exhibit 3 aired,
among other times, on July 6, 2007.
The parties agree that Government Exhibits 1, 2 and 3
should be admitted into evidence.
Additionally, in 2006, the defendant authored a book
called the The Weight Loss Cure "They" Don't Want You to Know
About. Government Exhibit 4 is an accurate copy of that book.
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The parties agree that Government Exhibit 4 should be
admitted into evidence.
So stipulated, counsel?
MR. KIRSCH: Yes. Yes, your Honor.
MS. PERRY: Pursuant to stipulation, the government
moves Exhibits 1, 2, 3 and 4 into evidence.
THE COURT: Government Exhibits 1, 2, 3 and 4 will be
admitted in evidence without objection pursuant to the
stipulation.
BY MS. PERRY:
Q. Inspector Carrier, I'm going to retrieve 1, 2 and 3 from
you.
Did you review all three of these infomercials?
A. Yes, I did.
Q. And how do you know that these particular copies are the
ones that you reviewed?
A. I initialed them.
Q. All right. Let's go ahead and talk first about the
infomercial that aired last in time.
So Government Exhibit 3 aired on what date?
A. July 6, 2007.
Q. And was that the first or only time that Government
Exhibit 3 aired or was that just one time on which that
particular infomercial aired?
A. One time.
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Q. All right. And who are the parties who appear in that
particular infomercial?
A. Chloe Marshall and Kevin Trudeau.
MS. PERRY: The government requests permission to
publish Government Exhibit 3. That would be through the
computer and the screens.
MR. KIRSCH: No objection, your Honor.
The source will be the prosecution computer?
MS. PERRY: Correct.
(Whereupon said recording was played in open court.)
BY MS. PERRY:
Q. Inspector Carrier, I'd like to next ask you about
Government Exhibit 2, which was the infomercial that aired
previous to this one that we just watched.
On what date did that particular infomercial air?
A. January 8, 2007.
Q. And was that the first or only date on which it aired or
just one of the dates on which it aired?
A. Just one of the dates.
Q. And who are the people who appear in that particular
infomercial?
A. Donald Barrett and Kevin Trudeau.
MS. PERRY: At this time the government requests
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permission to publish Exhibit 2 through the computer at our
table.
BY MS. PERRY:
Q. Okay. Let's move on to Government's Exhibit 1, the
infomercial that aired earliest in time. What was one of the
dates on which that particular infomercial aired?
A. December 23, 2006.
Q. And was December 23rd, 2006, the first or only date on
which it aired or just one of the dates?
A. Just one of the dates.
Q. And who are the people that appear in that particular
infomercial?
A. Chloe Marshall and Kevin Trudeau.
MS. PERRY: The government requests permission to
publish Exhibit 1 through the computer at our table.
BY MS. PERRY:
Q. Inspector Carrier, you've now identified Kevin Trudeau in
three separate infomercials. Do you see him here in court
today?
A. Yes, I do.
MR. KIRSCH: Your Honor, we stipulate that the
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defendant is here -- we stipulate that she can identify the
defendant in court.
MS. PERRY: That's fine.
THE COURT: The record will reflect that the witness
has identified the defendant in open court.
BY MS. PERRY:
Q. I am now going to hand you what's been marked as
Government Exhibits 1A, 2A and 3A.
MS. PERRY: And, Judge, I'm going to read another
stipulation.
THE COURT: Proceed.
MS. PERRY: Government Exhibits 1A, 2A and 3A are
accurate transcripts of the infomercials contained in
Government Exhibits 1, 2 and 3.
These transcripts accurately identify the speakers in
the infomercial and the words that were spoken.
The parties agree that Government Exhibits 1A, 2A and
3A should be admitted into evidence.
MR. KIRSCH: Yes, your Honor, we stipulate.
Exhibits 1A, 2A and 3A into evidence.
THE COURT: Government Exhibits 1A, 2A and 3A are
admitted in evidence without objection by stipulation.
MS. PERRY: And, Judge, we're going to hand out
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exhibit binders at this time.
THE COURT: Containing?
MS. PERRY: Containing 1A, 2A and 3A, as well as some
other exhibits that will be admitted in a few minutes.
MR. KIRSCH: What other exhibits that will be
admitted?
THE COURT: Show them to opposing counsel first,
please.
(Brief pause.)
MR. KIRSCH: Your Honor, we have the book here. If
they want to hand out the book, the entire book --
(Brief pause.)
MR. KIRSCH: Well, the government is proposing to
give the jury three chapters of the book; and we've got the
whole book. We've got 14 copies of the whole book. We can
give the jury the book.
MS. PERRY: Judge, we prefer to use ones they can
take notes in during Agent Carrier's testimony.
MR. KIRSCH: They can write in the books.
THE COURT: You're objecting?
MR. KIRSCH: No, your Honor. I'm just saying, they
want to give the jury three chapters. I'm saying we have the
entire book.
THE COURT: No, I don't want a closing argument. I
want to know if you're making an objection to the government's
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introduction of these exhibits and handing them out to the
jury.
MR. KIRSCH: No, I don't object.
THE COURT: Okay. You may do so.
MS. PERRY: Thank you, Judge.
(Brief pause.)
MR. KIRSCH: Your Honor, for completeness I request
that the jury also be provided the entire copy of the book.
MS. PERRY: Judge, we do intend to provide the jury
with the entire copy of the book. But these might be easier
for Inspector Carrier's testimony.
THE COURT: The motion, if that is what it is, is
overruled.
(Brief pause.)
THE COURT: The jurors are instructed to limit
themselves to viewing Exhibits 1A, 2A and 3A at this time.
BY MS. PERRY:
Q. Based upon Exhibits 1A, 2A and 3A, did you prepare
something else, Inspector Carrier?
A. Yes, I prepared a chart.
Q. I'm going to hand you Government Exhibit 19 and ask you
what this is.
A. It's a chart containing three columns. And it contains
representations, quotes and the parts of the transcripts that
I reviewed.
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Q. Now, are the quotes contained in that chart an accurate
summary of quotes from the infomercials, as well as Government
Exhibits 1A, 2A and 3A?
A. Yes.
Q. And have you categorized them in certain ways?
A. Yes. There's three columns, representing --
Q. And do those quotes represent every single time that
certain quotes of that nature were made or just some of the
times that quotes of that nature were made?
A. Just some of them.
Q. But it is a fair and accurate summary of some of those
quotes; is that right?
A. Yes.
Exhibit 19 into evidence.
MR. KIRSCH: Your Honor, no objection to 19 being
admitted as a demonstrative exhibit.
MS. PERRY: And, Judge, we actually move that in as
an actual exhibit.
MR. KIRSCH: Your Honor, it's a demonstrative exhibit
prepared to aid the witness in testifying. We have no
objection to it being admitted as a demonstrative.
THE COURT: It's not being offered as a demonstrative
exhibit. It's being offered as real evidence. Do you have an
objection to it as a summary of real evidence?
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MR. KIRSCH: Yes, your Honor, because I don't believe
it's a fair summary.
THE COURT: Let's have a sidebar.
In fact, it's quarter to 12:00. We would break for
lunch at 12:00, so why don't we instead break for lunch now,
have the jurors return at 1:15 and we can have our sidebar
while they are having lunch.
Folks, as always you are not to discuss this case
with anyone or allow anyone to discuss it with you. You are
not to view, read or listen to any news reports that may come
up at any time when you're not in court. Please return at
1:15 directly to the jury room. And use the elevators on that
side of the building.
Have a good lunch.
(Jury out.)
THE COURT: Ma'am, you may step down.
MR. KIRSCH: Your Honor, may I speak with the
government lawyers for a minute?
THE COURT: Sure.
(Brief pause.)
THE COURT: Yes?
Your objection?
MR. KIRSCH: Oh, I -- yes, your Honor. Your Honor, I
object that it -- I actually have a chart -- I object that
it's not a summary under 1006 of voluminous records or --
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1006, which I think is the rule.
They have handed to the jury in one little thin
binder the transcripts that are already in evidence.
Now, I have a chart, a very similar chart to what the
government proposed.
THE COURT: Let's stick to what the government is
offering and your objection to that. When you offer your
chart, we can talk about that, if indeed you do so. What's
your objection to what the government is offering?
MR. KIRSCH: Your Honor, it's not substantive
evidence in the case. It's a demonstrative exhibit to aid the
witness' testimony. And it's not admissible as substantive
evidence, and it shouldn't be. And what I -- what I -- well,
anyway.
THE COURT: And it doesn't fit under 106 why?
MR. KIRSCH: It's 1006.
THE COURT: I'm sorry. 1006, why?
MR. KIRSCH: Because it's not summarizing voluminous
records or exhibits. It's not like this is summarizing phone
records or something like that. It's just a chart that is
going to aid the witness' testimony.
I have no objection to it coming in as a
demonstrative exhibit. But what I propose to the Court is I
have a similar chart --
THE COURT: Well, let me first allow the government
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to respond to your objection to their exhibit.
MS. PERRY: Judge, I think this will aid the trier of
fact. It will help them when they're back in the jury room.
If it's admitted as a demonstrative, it would not go back to
the jury room. And I think this would help them. And it
should be admitted as substantive evidence. It is an accurate
summary.
THE COURT: What is it a summary of?
MR. KIRSCH: Your Honor, it contains --
THE COURT: Excuse me. No, for the government.
MS. PERRY: It's a --
THE COURT: It's your exhibit, right?
MS. PERRY: It is.
THE COURT: Okay.
MS. PERRY: In the left-hand column, there are some
of the misrepresentations that the jury is going to be asked
to weigh in on.
THE COURT: Misrepresentations from where?
MS. PERRY: From the infomercials.
THE COURT: So this is a summary of the infomercials?
MS. PERRY: The infomercials.
THE COURT: Okay.
MS. PERRY: The middle column has a series of quotes
that the government feels are representations of that type of
theme from the infomercial.
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And then the third column has the exhibit number, the
page number, and the line number on which the quote appears.
MR. KIRSCH: Your Honor, can I respond to that?
THE COURT: Sure, I'll allow you to respond. But let
me first make sure I understand what the government is
attempting to do here.
So you're offering this then as a summary of specific
types of statements made in the infomercials?
MS. PERRY: Correct.
THE COURT: Well, as a beginning, I think the
infomercials that we have just sat through are indeed
voluminous records. They are a record of all of the
statements made in the infomercials by the defendant, all of
which are relevant evidence in this case and have come into
evidence without objection. And that is rather a large number
of statements. I mean, we've all just heard them. I don't
know, how many minutes altogether?
MS. PERRY: About an hour and a half.
THE COURT: An hour and a half of statements. A lot
of statements made in an hour and a half. So that is a
voluminous record, and it is subject to being summarized.
My concern is that you're not indicating that the
chart that you're offering as a summary of particular types of
statements made during these infomercials is of every single
example of such statements; is that correct?
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MS. PERRY: There are a few that we realized after we
submitted the chart last week were not on there.
THE COURT: So what are we talking about? What's a
few?
MS. PERRY: Three or four.
THE COURT: Three or four of each type or three or
four --
MS. PERRY: No, three --
THE COURT: -- altogether?
MS. PERRY: -- or four total.
THE COURT: Three or four total?
MS. PERRY: Also there are some statements that are
ambiguous as to whether or not they fit into a certain
category, and so we left those off. We picked only the ones
that we thought were clear.
THE COURT: Okay. Your response?
MR. KIRSCH: Your Honor, the transcripts are coming
into evidence. They're approximately 12 pages each. I think
that to the extent the chart is going to be representative of
substantive evidence, it misrepresents in certain instances
what the defendant said. Taking snippets of quotes from
sentences and then using ampersands in between the sentences,
I think, is not fair to go back to the jury as a substantive
exhibit.
It's perfectly fine if the witness wants to use it,
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refer to it, use it as a demonstrative exhibit. I mean, my
opening statement charts would never go back to the jury as a
summary of my opening statement. I mean, of course, that's
argument; it's not evidence; but that's essentially what the
government is trying to do.
THE COURT: Very large difference, right?
MR. KIRSCH: Well, but that's essentially what the
government is trying to do. This is not the type of
evidence -- a demonstrative chart, no problem at all. But
it's not -- it's just not substantive evidence in the case.
THE COURT: So the entire transcript of the
infomercials is how many pages long?
MS. PERRY: I believe one is 15, one is 17 -- they're
all around 15 or 16 pages, Judge.
THE COURT: Okay.
MR. KIRSCH: I agree with that, your Honor.
MS. PERRY: 1A is 15, 2A is 14, 3A is 17.
THE COURT: Well, I'm going to overrule the
objection. I think that, given those pages, it would be
inconvenient, to say the least, for any witness to have to
flip through all of those pages while testifying, trying to
seek out each example of the type of statement that the
government wishes to have the witness testify about. So this
is, I think, a summary of a voluminous writing or recording
that cannot be conveniently examined in court.
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I think I understand the defense objection, in that,
it also, as summaries are wont to do, is an exhibit that will
aid the witness in testifying and explaining her testimony to
the jury. But I don't think that disqualifies it as a
summary.
In addition to that, the largest concern with summary
exhibits, of course, is that they not mislead; that they not
in any way shape the -- misshape or misrepresent the actual
voluminous writings or recordings that are being represented.
That's not a problem in this case because both parties have
agreed that the actual writings are going to go into evidence
and go back to the jury. They're available to both sides for
cross-examination as well as on direct, and they will be
available to the jury, so that I see no real prejudice to
either side. And it seems to me that this exhibit does fit as
a chart, a summary of a voluminous writing that cannot be
conveniently examined in court.
For that reason, I'll overrule the objection. They
may come into evidence.
THE COURT: The chart may come into evidence as real
evidence in the case.
MR. KIRSCH: Your Honor, I just have two other quick
things.
THE COURT: Sure.
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MR. KIRSCH: Because the chart is going to come in as
substantive evidence now and it just lists quotes from the
infomercial, I'm concerned that the jury is going to be under
the impression that what they're being asked to decide is
whether the infomercial itself was accurate and not the
question of whether it misrepresented the content of the book.
So at this time, I would request the Court read to the jury
the agreed proposed jury instruction that's document No. 124
that the Court had suggested during pretrial conferences that
it may read to the jury during the presentation of the
evidence.
And that instruction reads: The issue of whether
what is written in The Weight Loss Cure "They" Don't 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 loss 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.
Because the chart only contains alleged
misrepresentations in the infomercial and it doesn't compare
it to the content of the book, I'm concerned that the jury may
be confused about the issue that -- and I ask that that be
read to the jury.
And, your Honor, the other thing is I have a chart --
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a similar chart to what the government was -- admitted as
substantive evidence that I was planning on using as
demonstrative evidence during cross-examination. But, your
Honor, I'm going to make the same request that the government
just made and -- that my chart, which summarizes the book,
come in under 1006. And the only reason I tell you that now,
your Honor, is if you'd like --
THE COURT: Are the charts different?
MR. KIRSCH: Yes. My chart has the quotes from the
book.
THE COURT: Okay.
MR. KIRSCH: But what I'd like to do -- your Honor,
the only reason I say that -- if you'd like, I have a copy for
the Court and the court reporter if you'd like it now.
THE COURT: Wait. What's your response?
MS. PERRY: Well, my response is the chart is 31
pages long and it was just given to me. So before I have a
response, I'd need to judge its accuracy.
THE COURT: Then let's wait and see. There may not
be any objection to your suggestion --
MR. KIRSCH: Okay.
THE COURT: -- so there's no need to argue it at this
point. But having just received it, I can't expect the
government to respond to it.
With respect to your first request, that is, that a
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jury instruction be given, I'm amenable to giving a jury
instruction. I don't think it's particularly crucial at this
point in time because this chart going into evidence at this
point in time is no different than if I allowed the entire
transcripts, which you've all agreed to, to go into evidence
at this time. The transcripts are only transcripts about the
infomercials. They don't contain any information about the
book itself. And I don't think that allowing the transcripts
into evidence would tend to mislead the jury as to what the
real issue is here.
However, I'm happy to give an instruction. But it's
going to have to be proposed to me in writing, and it's going
to have to be probably more succinct than what you just read.
I want to make sure that we clarify to the jury precisely what
the nature of the issue is and why we're giving the
instruction.
MR. KIRSCH: Your Honor, we filed this. It's on the
docket as docket No. 124. It's an -- we filed it as an agreed
proposed jury instruction.
THE COURT: Document No. 124?
MR. KIRSCH: Yes, your Honor. It was filed on
Halloween, last Thursday, 10/31.
MS. PERRY: Judge, Inspector Carrier is going to
summarize the infomercials with the chart. And then I'm going
to be moving directly into the book. That might be a good
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time, either before or in the midst of that testimony, to give
the instruction, whatever instruction you give.
THE COURT: I'll review the instruction and make a
determination. I don't think it makes a great deal of
difference. I think, frankly, you both have essentially given
the jury that instruction in your opening statements, which
neither side objected to. But I will review the proposed
instruction. And if I think the wording is appropriate, I'll
give it. And I'll have to think about whether it's better to
give it after they have received all of the material or before
they receive any of it. We'll make that determination when we
come back from lunch.
THE COURT: Anything else?
MS. PERRY: No, Judge. The only other issue is, to
the extent Mr. Kirsch is going to suggest that my presentation
differ in some way than he feels it should be, I would
appreciate it if he would do it outside of the presence of the
jury because 4A, 4B and 4C have been on our witness list for
well over a week.
THE COURT: Well, I don't care how long they have
been on the witness list. The point is this: If you want to
make an objection, do so and give me the legal basis and
nothing else. I don't want to hear your arguments as to what
is a better way of doing something than what the opposing
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counsel is seeking to do, any more than I would let her do
that to you.
THE COURT: And I don't want arguments of that nature
in front of the jury in an attempt to influence the jury. So
you give me the legal basis of the objection. If I need more,
I'll call for a sidebar and ask you for more, otherwise I'll
make a ruling based upon the legal basis and that only. Okay.
That goes for both sides. There are going to be no
mini summary closing arguments under the guise of objecting in
this case. I won't allow it.
MR. KIRSCH: Your Honor, I understand. That wasn't
what I was trying to do.
For the start of my cross-examination, I'm going to
give the jurors the book. I have 14 copies of the book.
THE COURT: Yes, I know.
MR. KIRSCH: I just thought it would be easier.
THE COURT: I know you thought it would be easier.
But you also know that if the government wanted to do it that
way, that's the way they would have done it. They prefer to
do it their way, and it's their case and, therefore, it's not
for you to say in front of the jury that you think a better or
easier way would be yours, thereby attempting to influence the
jury. Are you understanding me?
MR. KIRSCH: I understand, your Honor.
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THE COURT: Good.
MR. KIRSCH: I understand.
THE COURT: Okay. We're recessed for lunch. 1:15.
(Trial recessed until 1:15 p.m. of the same day.)
* * * * *
I certify that the foregoing is a correct transcript from the
/s/ Nancy C. LaBella November 6, 2013
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69
EASTERN DIVISION
)
Plaintiff, )
)
v. ) No. 10 CR 886
)
) November 6, 2013
APPEARANCES:
MS. APRIL M. PERRY
Suite 500
(312) 353-5300
(312) 558-5600
Attorney at Law
17th Floor
(312) 420-9263
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APPEARANCES (Cont'd):
MS. MARY HACKER
Official Court Reporters
(312) 435-6890
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(Proceedings had in open court:)
THE COURT: Be seated, please.
Carol, can you pass this out to the attorneys. I
have one for each attorney.
(Document tendered.)
THE COURT: I have reviewed Docket No. 124, which
contains the proposed jury instruction, and it confused me.
So, I have another one that I proposed, which I think is a bit
clearer.
You will note it uses the word "issue" about five
times less than the instruction that was proposed by the
parties.
MR. KIRSCH: Your Honor, I agree this is much better.
I have -- we have no objection to this instruction.
THE COURT: Wonderful.
MR. KRICKBAUM: No objection.
THE COURT: Government?
Terrific.
I intend to give the instruction now. I think the
jury might as well get it before they get into the evidence.
So, anything else before we bring the jury out?
MR. KRICKBAUM: No, Judge.
THE COURT: Let us bring them out, please.
(Jury in.)
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Carrier - direct
72
THE COURT: Welcome back, ladies and gentlemen.
You will recall, I suspect, that during the course of
jury selection I told you that at the end of all the evidence,
I would give you instructions on the law that you were to
follow. And I also indicated that sometimes from time to time
during the course of the trial, as well, I might give you such
instructions. This is one of those times. I have an
instruction for you.
You are instructed that whether the content of the
book The Weight Loss Cure "They" Don't Want You to Know About
is truthful is not an issue for you to decide in this case.
Likewise, whether the weight loss protocol described in the
book The Weight Loss Cure "They" Don't Want You to Know About
is effective for weight loss is not an issue for you to
decide. These issues are not relevant to this case.
You may proceed.
MS. PERRY: Judge, before the break we moved
Government Exhibit 19 into evidence.
THE COURT: It has been admitted.
MS. PERRY: And we would like to publish it -- the
first page of it at least -- via the government's computer,
and it is also in the back of the jury binders.
SILVIA CARRIER, PLAINTIFF'S WITNESS, PREVIOUSLY SWORN
DIRECT EXAMINATION - Resumed
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Carrier - direct
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BY MS. PERRY:
Q. Inspector Carrier, I'd like to talk to you about some of
the themes that appear throughout these infomercials, as well
as this chart that you put together.
So, if you could please take us through the first
column in the chart on the far left-hand side of the page.
A. The first column is representations that were made.
Q. And what is the second column?
A. Examples of these types of representations in exact quotes
from the transcripts.
Q. And, then, what is the third column?
A. "Transcript." It shows the section -- it shows which
transcript and what page and section that quote can be
located.
Q. All right.
So, as an example, could you just take us through the
first one on there. The representation is, "The protocol is
not a diet."
The quote is, "It's not a diet...this is not another
diet, Don."
Could you explain to us how we would go about finding
that quote in the infomercial transcripts?
A. So, if you turn to Exhibit 2-A in the binder, and on Page
1 the quote starts on Line 17 and goes through to Line 18.
Kevin Trudeau starts, "Well, it's not a diet. The
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Carrier - direct
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book is called The Weight Loss Cure 'They' Don't Want You to
Know About, and this is not another diet, Don."
Q. So, what do these dots represent in the chart, then?
A. It's -- the quote is the beginning and the end of his
statement.
Q. Okay.
So, if you could please take us through the
representations that you have listed on here for "The protocol
is not a diet." And we don't need to look back at the
transcript for all of those.
A. The second quote listed is: "It's not a diet."
Next, "You're never hungry. It's not a diet."
"You're not on a diet."
"I have found the weight loss cure. Not a diet, not
an exercise program, not portion control, not calorie
counting, not watching your carbs, not watching your fat. No
crazy potions, powders or pills. A doctor discovered a cure
for the problem of obesity."
And the last quote, "This is not a diet. This is a
cure, a cure."
Q. So, what's the second type of representation?
A. "Anybody can do the protocol."
Q. And what's that quote?
A. "Anybody can do it, I believe, and it's in the book."
Q. All right.
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Carrier - direct
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And what's the third type of representation?
A. "You can do the protocol at home."
Q. And I'm not going to make you read all of those, because
they look pretty much all the same.
MS. PERRY: Can we go on to the second page, please.
BY MS. PERRY:
Q. What is the first type of representation on the second
page of this chart?
A. "The protocol is simple."
Q. What is the next type?
A. "The protocol is inexpensive."
Q. And what follows that?
A. "The protocol causes no hunger, and there is no
deprivation."
Q. And let me stop you there for a moment.
Causes no hunger and no deprivation, is that one
thought or two thoughts?
A. It's two, but usually in the quotes, hunger and
deprivation, along with no exercise, were usually spoken
together.
Q. All right.
So, we have quotes there that include both "no
deprivation" and "no hunger"?
A. Correct.
Q. And sometimes both of those in the same line?
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Carrier - direct
76
A. Yes.
Q. All right.
MS. PERRY: If you could go on to the third page,
please.
BY MS. PERRY:
Q. What is the type of representation you have summarized
here?
A. "The protocol does not require exercise."
Q. And, then, what follows that?
A. "HCG."
Q. All right.
And let me stop you at HCG for a moment.
First of all, does the word "HCG" appear anywhere in
the infomercials itself?
A. No, it does not.
Q. All right.
And with respect to Government Exhibit 1-A, is there
anything that you would have categorized as relating to HCG?
A. No, there was not.
Q. Okay.
What about in Government Exhibit 2-A?
A. There's a general statement that could be related to the
HCG.
Q. All right.
And you didn't include it on the chart, but I want to
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Carrier - direct
77
direct the jury's attention to it.
In Exhibit 2-A, what page is that at?
A. On Page 12.
Q. On what lines?
A. Line 14.
Q. And what does that line state?
A. The substance that's used can't be patented."
Q. All right.
And, so, that might be a reference to HCG; is that
right?
A. Yes.
Q. All right.
And does it continue on at all?
A. Yes. The other person in the infomercial asks a follow-up
question to that.
Q. And, then, at Lines 18 and 19, what is the line there?
A. Donald Barrett asks, "Are there any negative side effects
at all?"
And Kevin Trudeau answers, "None that have been
reported. It's been used since the '50s."
Q. Is there anything else in 2-A that even arguably could be
considered a reference to HCG?
A. No.
Q. All right.
So, let's move on to Exhibit 3-A.
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Carrier - direct
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And what are the types of representations that are
made there?
A. The first is, "A miracle, all-natural substance."
Then, "You can get it anywhere. It's easy to get.
It's very inexpensive. I call it an all-natural miracle
substance."
"You can take this and this substance, combined with
a few other little things in the protocol, trigger the
hypothalamus gland."
And the last, "When you take this magical -- what I
call the miracle, magical, all-natural substance, which I
describe in the book and where to get it...you can get it
anywhere."
MS. PERRY: If we could please move on to the next
page of the chart.
BY MS. PERRY:
Q. What is the representation that you have listed here?
A. "The protocol is a permanent cure."
Q. Okay.
MS. PERRY: And onto the next page, please, Page 5.
BY MS. PERRY:
Q. What is the representation you have listed at the top
there?
A. "You can finish the protocol and, after finishing, you can
eat whatever you want."
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Carrier - direct
79
Q. And, then, what is the final type of representation on
this particular chart?
A. He references to a doctor's supervision.
Q. And with respect to that, in what infomercial does Kevin
Trudeau discuss a doctor?
A. In the first trans- -- first infomercial.
Q. Okay.
And what does he say about whether or not you need a
doctor?
A. "When you're underage, you obviously want to do any weight
loss program under the supervision of a licensed healthcare
practitioner."
Q. All right.
MS. PERRY: Thank you, Judge. We no longer need
Exhibit 19-A -- 19 -- on the screen.
BY MS. PERRY:
Q. I'd like to turn your attention now, Inspector, away from
the infomercials and onto the book itself.
First of all, let me ask you this: Is the book
subdivided into chapters?
A. Yes.
Q. Okay.
MS. PERRY: And I'm going to go ahead and put up the
table of contents, if I may, on the Elmo.
BY MS. PERRY:
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Carrier - direct
80
Q. All right. If you could read for us the chapter headings
for this particular book?
A. "Acknowledgements"; "Disclaimer"; "Introduction"; Chapter
One: Lose Thirty Pounds in Thirty Days Guaranteed"; "Chapter
Two: It's Not Your Fault You Are Fat"; "Chapter Three: The
Weight Loss Cure Discovered"; "Chapter Four: The Cure
Suppressed"; "Chapter Five: The Cure Revealed"; "Chapter Six:
Frequently Asked Questions"; "Chapter Seven: Curing Food
Cravings, Emotional Eating and Uncontrollable Compulsive
Eating"; "Chapter Eight: The Proof Revealed"; "Chapter Nine:
Putting it All Together: Summary and Conclusion"; "Appendix";
"References"; and, "About the Author."
Q. All right.
So, out of these chapters, what's the first place in
the book that actually discusses what you have to do to lose
weight?
A. Chapter Five: The Cure Revealed.
Q. All right.
So, let's just talk briefly, then, about the chapters
that precede that.
With respect to Chapter One: Lose thirty Pounds in
Thirty Days, what, generally speaking, is that chapter about?
A. Kevin Trudeau discusses what he calls the cure that he
discovered regarding weight loss. He refers to it as a weight
loss cure protocol. He also discusses some of the reasons why
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Carrier - direct
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people are overweight and obese. And he also discusses his
issues with weight.
Q. All right.
With respect to Chapter Two: It's Not Your Fault You
Are Fat, what, generally speaking, is that chapter about?
A. Kevin Trudeau discusses some of the reasons that people
are overweight and obese.
Q. And with respect to Chapter Three: The Weight Loss Cure
Discovered, what, generally speaking, is that chapter about?
A. Kevin Trudeau discusses a person called Dr. Simeons who
did research in the 1950s regarding obesity.
He talks about how Dr. Simeons introduced HCG into
his research and how he used this to form -- create what he
refers to as the weight loss cure protocol.
He then talks about a person he refers to as
Dr. Fritz. He gives this person that name to protect his
identity and says that Dr. Fritz went on to use the weight
loss cure protocol after Dr. Simeons passed.
And he talks about how Dr. Fritz is the person who
introduced him to the weight loss cure protocol.
Q. All right.
Just, generally speaking, what is Chapter Four about?
A. Chapter Four: The Cure Suppressed.
Kevin Trudeau discusses how he was an insider in the
food, drug and weight loss industry and how these industries
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Carrier - direct
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are directly involved in weight gain and obesity.
He also talks about how The Weight Loss Cure has been
used in an underground capacity by doctors.
Q. All right.
And, then, Chapter Five, I believe you said, is the
first place that the actual Weight Loss Protocol is laid out;
is that right?
A. Correct.
Q. And, then, is there someplace where it's put together in
more of a summary fashion?
A. In Chapter Nine: Putting It All Together: Summary and
Conclusion.
Q. I'm going to hand you what's been marked as Government
Exhibits 4-A, 4-B and 4-C.
(Documents tendered.)
BY MS. PERRY:
Q. Do you recognize 4-A, 4-B and 4-C?
A. Yes.
Q. What are those things?
A. Chapters Five, Six and Nine of the book.
Q. And are those fair and accurate copies of those chapters?
A. Yes, they are.
Q. All right.
MS. PERRY: At this point the government moves 4-A,
4-B and 4-C into evidence.
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THE COURT: They will be admitted without objection.
(Government Exhibit Nos. 4-A, 4-B and 4-C received in
evidence.)
BY MS. PERRY:
Q. All right.
So, let's go ahead and start then with Chapter Nine,
the summary section. And, specifically, let's go to Page 213.
Let me ask you first, Inspector Carrier, is the
weight loss protocol described in this book broken down in any
fashion?
A. There's four phases.
Q. And I'd like, if you could, for you to summarize those
four phases.
MS. PERRY: I am going to put this up on the screen,
Judge.
THE COURT: Okay.
BY MS. PERRY:
Q. So, let's start with Phase 1. It lists things you must
do.
Could you please read that?
A. "Drink ThreeLac as directed"; "drink one-half to one
gallon of pure water with coral calcium daily"; "drink Wu Long
tea as directed"; "walk one hour each day outside"; "do
colonics as directed"; "eat two organic apples per day"; eat
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Carrier - direct
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organic grapefruits"; "eat breakfast"; "eat six times per
day"; "finish dinner three and one-half hours before bed"; "do
a colon cleanse"; "take organic extra virgin coconut oil";
"drink organic raw apple cider vinegar"; "take Eleotin as
directed"; "use Callahan techniques as needed"; "eat a salad
with lunch and dinner"; "take probiotics daily"; "take Krill
oil, Omega-3s, daily"; "take a whole food supplement daily";
"drink Yerba Mate tea daily"; "drink chamomile tea daily";
"take saunas as often as possible"; "take Acetyl-L-Carnitine
daily"; "take digestive enzymes with meals"; "look at and
repeat the phrase, 'I weigh _____ ' using your ideal weight
and look at pictures of you with your ideal body many times
throughout the day"; "use stevia, organic agave nectar,
organic raw honey or organic raw sugarcane for sweeteners";
"get personalized individual care from a licensed healthcare
practitioner who does not use drugs and surgery."
Q. And, then, there are also things strongly suggested that
you do. Could you please read those for us?
A. "Take a heavy metal cleanse product or get chelation";
"drink organic tea daily"; "take Vitamin E daily"; "sleep
eight hours, ideally between 10:00 p.m. and 6:00 a.m."; "do
deep breathing daily'; "listen to stress-reducing CDs daily";
"eat 100 percent organic food"; "add hot peppers or hot salsa
to food"; "use fresh cinnamon"; "do yoga"; "use a rebounder or
mini-trampoline daily"; "get 20 minutes of sun daily"; "get
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massages often"; "use AlphaCalm as needed"; "use a Q-Link,
E-Pendant or Biopro or other such device"; "eat only 100
percent organic grass-fed beef, veal or lamb"; "eat only 100
percent organic poultry"; "eat organic raw, not pasteurized or
homogenized, dairy products."
This next page is difficult to read.
Q. We're on, I think -- you ended at "eat organic raw dairy
products."
A. Okay. I'm sorry.
"Take a homeopathic human growth hormone supplement
as directed by your doctor"; "eat raw organic nuts and seeds
in small quantities for snacks"; "use a shower filter"; "eat
in a relaxed atmosphere at the table"; "chew thoroughly and
eat slowly"; "play baroque classical music or other relaxing
music at meal time"; "read books and watch DVDs for education
and deprogramming from the suggested list in the Appendix";
"take flax"; "take a high-fiber product"; "buy food each day";
"sing"; "go dancing"; "laugh"; "have a drink of wine, beer or
other alcohol to relax"; "play with pets or children often";
"give and get hugs often"; "play a musical instrument"; "try
to include as many of the tastes in every meal or throughout
each day"; "do resistance training"; "eat 100 grams of protein
before bed"; and, "use Dianetics for psychosomatic and
emotional ills."
Q. There are also things you must not do.
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A. "No fast food, regional or national chain restaurants";
"limit highly-refined food, super highly-refined food, such as
white sugar and white flour"; "no monosodium glutamate, MSG";
"no artificial sweeteners, such as NutraSweet and Splenda";
"no trans fats, such as hydrogenated or partially hydrogenated
oils"; "no super highly-refined sugars, such as high fructose
corn syrup, corn syrup, sucrose and dextrose"; "no
non-prescription, over-the-counter or prescription medication.
Done only under the supervision of a physician"; "no
nitrites."
Q. And, then, at the end of Phase 1, we also have things
strongly suggested you do not do.
Could you please read those?
A. "No meat, poultry or dairy with growth hormone and
antibiotics"; "no restaurant food"; "don't go to restaurants
that heavily advertise"; "don't buy products that are heavily
advertised"; "limit homogenized or pasteurized dairy
products"; "no farm-raised fish"; "limit wheat, choose rye
instead"; "don't worry about calories, fat, carbohydrates or
sodium"; "no microwaved food"; "no diet food, low carb,
lowfat, 'lite' or non-fat food"; "no skin products with
propylene glycol, sodium laureth sulfate or mineral oil";
"don't watch, read or listen to ads for food or restaurants";
"no genetically-modified food"; "limit ice cold drinks";
"limit exposure to air-conditioning"; "limit exposure to
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fluorescent lights"; "limit carbonated drinks"; "no juices
that have been bottled, canned or are in cartons."
Q. All right. This brings us to Phase 2.
Could you please read the things in Phase 2 that you
must do?
A. "Be supervised and under the care of a licensed
physician"; "weigh yourself daily"; "take before pictures";
"take daily injections of HCG as directed by your doctor";
"eat breakfast, snacks, lunch, and dinner as directed in the
instructions"; "drink one-half to one gallon pure water with
coral calcium daily"; "drink at least one cup organic
chamomile tea daily"; "drink at least two cups Wu Long tea
daily"; "drink at least one cup Yerba Mate tea daily"; "only
100 percent organic grass-fed beef, lamb and veal"; "only 100
percent organic poultry"; "use the Callahan techniques as
needed"; "drink Eleotin tea"; "read, 'I weigh _____ ' out loud
many times per day and look at pictures with yourself with
your ideal body throughout the day"; "if your weight stays the
same for four days in a row, use the six apples protocol as
outlined in the instructions."
Q. Can you please read the things that you must -- that are
strongly recommended during Phase 2?
A. "Drink organic green tea"; "do yoga"; "rebound or use mini
trampoline"; "walk one hour per day"; "do resistance
training"; "get 20 minutes of sun per day"; "use saunas as
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often as possible"; "get colonics as directed"; "eat only 100
percent organic food"; "eat in a relaxed atmosphere at the
table"; "eat slowly and chew thoroughly"; "play baroque
classical music or other relaxing music at mealtime"; "read
books and watch DVDs for education and deprogramming from the
suggested list in the Appendix"; "listen to stress-reducing
CDs daily"; "do deep breathing daily"; "wear a Q-Link,
E-Pendant or use Biopro or other such devices"; "get no more
than one Thai massage per week"; "play with pets or children";
"play a musical instrument"; "sing"; "go dancing"; "laugh
often"; "give and get hugs often"; "use a shower filter";
"sleep eight hours each night, ideally between the hours of
10:00 p.m. and 6:00 a.m."; "use Dianetics for psychosomatic
and emotional ills."
Q. All right.
Let's move on to things you must not do during Phase
2.
A. "Put nothing on your -- " "on the skin"; "no nitrites";
"no monosodium glutamate, MSG"; "no artificial sweeteners,
such as NutraSweet and Splenda"; "no trans fats, such as
hydrogenated or partially hydrogenated oils"; "no
non-prescription, over-the-counter or prescription drugs.
Must be done under the supervision of a licensed physician."
Q. And how about things strongly suggested you do not do
during Phase 2?
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A. "No ice cold drinks"; "limit exposure to
air-conditioning"; "limit exposure to fluorescent lights"; "no
genetically-modified food"; "no restaurant food"; "don't
watch, read or listen to ads for food or restaurants"; "don't
buy products heavily advertised"; "do not use a microwave";
"no meat or poultry with growth hormone"; "no farm-raised
fish."
Q. If you don't want to do this particular phase, is there
another book that you can get?
A. He states, "If you cannot or do not want to do the HCG and
500-calorie diet, Simeons' protocol, replace that protocol
with the Turbo Protein Diet as explained in the book by Dieter
Market available at www.almased.com. The Turbo Protein Diet
will be your Phase 2."
Q. All right. Let's move on to Phase 3, then.
Can you please read the things you must do during
Phase 3?
A. "Weigh yourself daily"; "take ThreeLac daily"; "drink
one-half to one gallon pure water with coral calcium daily";
"drink at least one cup organic chamomile tea daily"; "drink
at least two cups Wu Long tea daily"; "drink at least one cup
Yerba Mate tea daily"; "use organic coconut oil daily"; "use
organic raw apple cider vinegar daily"; "walk one hour per day
outside"; "do a colon cleanse"; "do colonics as directed";
"eat breakfast"; "eat six times per day"; "finish dinner three
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and one-half hours before bed"; "eat 100 percent organic
food"; "eat at least one organic apple daily"; "eat organic
grapefruits often"; "take digestive enzymes with food"; "eat
in a relaxed atmosphere sitting at a table"; "eat slowly and
chew thoroughly"; "take Krill oil, Omega-3s, daily"; "take
probiotics daily"; "use stevia, organic agave nectar, organic
raw honey or organic raw sugarcane as your only sweetener
sources"; "eat only 100 percent organic grass-fed beef, lamb
and veal"; "eat only 100 percent organic poultry"; "eat a
salad with lunch and dinner"; "use Callahan techniques as
needed"; "read out loud, 'I weigh _____ ' many times per day
and look at pictures with yourself with your ideal body
throughout the day"; "take Eleotin as instructed"; "get
personalized individual care from a licensed healthcare
practitioner who does not use drugs and surgery"; "if you gain
two pounds, using the skipping meals and steak method as
described."
Q. How about things strongly suggested you do during Phase 3?
A. "Take a whole food supplement daily"; "do yoga often";
"use a rebounder or mini trampoline often"; "do resistance
training often"; "get 20 minutes of sun daily"; "use a sauna
often"; "eat 100 grams of protein before bed on occasion";
"take a fiber drink often"; "add hot peppers or hot salsa to
food"; "add cinnamon to your tea"; "play baroque classical
music or other relaxing music at meal time"; "eat only 100
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percent organic raw dairy products"; "take
Acetyl-L-Carnitine"; "take Vitamin E daily"; "use a Q-Link,
E-Pendant, Biopro or such devices"; "use AlphaCalm as needed";
"get massages often"; "sleep eight hours per night, ideally
between 10:00 p.m. and 6:00 a.m."; "do deep breathing daily";
"listen to stress-reducing CDs daily"; "read books and watch
DVDs for education and deprogramming from the list in the
Appendix"; "take homeopathic human growth hormone, HGH, as
directed by a licensed healthcare practitioner"; "eat raw
organic nuts and seeds in small quantities as snacks"; "use a
shower filter"; "take flax"; "buy food daily instead of
stockpiling"; "sing"; "go dancing"; "sing often"; "play with
pets or children"; "play a musical instrument"; "give and get
hugs often"; "use Dianetics for psychosomatic and emotional
ills."
Q. Let's move on to things you must not do during Phase 3.
A. "No sugar or starch"; "no store-bought bottled, canned or
carton juice"; "no fast food, regional or national chain
restaurant food"; "no highly-refined and super highly-refined
foods, including white sugar and white flour"; "no meat,
poultry or dairy with growth hormone"; "no monosodium
glutamate, MSG"; "no artificial sweeteners, such as NutraSweet
and Splenda"; "no trans fats, such as hydrogenated or
partially hydrogenated oil"; "don't worry about calories, fat,
carbs or sodium"; "no non-prescription, over-the-counter or
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prescription medications, done under the supervision of a
licensed physician."
Q. And things strongly suggested you do not do during Phase
3?
A. "Limit ice cold drinks"; "limit exposure to
air-conditioning"; "limit exposure to fluorescent lights";
"limit carbonated drinks"; "limit restaurant food"; "no skin
products with propylene glycol, sodium laureth sulfate and
mineral oil"; "don't watch, read or listen to ads for food or
restaurants"; "don't buy heavily advertised products"; "no
diet, low carb, low fat, nonfat or 'lite' food"; "never use a
microwave"; "no food with nitrites"; "limit homogenized and/or
pasteurized dairy products"; "no farm-raised fish"; "don't go
to restaurants that heavily advertise."
Q. All right. Let's move on to Phase 4.
Things you must do, please.
A. "Weigh yourself daily"; "take ThreeLac as directed"; "do
the life force Candida cleanse"; "do a liver cleanse"; "do a
parasite cleanse"; "take a heavy metal cleanse product or get
chelation"; "take a whole food supplement daily"; "drink
one-half to one gallon pure water with coral calcium daily";
"walk one hour outside daily"; "do a colon cleanse"; "do
colonics as necessary"; "eat breakfast"; "eat six times a
day"; "finish dinner three and one-half hours before bed";
"eat organic apples daily"; "eat organic grapefruit often";
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"take digestive enzymes with food"; "do a supervised fast
within 12 months"; "do the purification program within 12
months"; "eat only 100 percent organic raw dairy products";
"take Acetyl-L-Carnitine daily for three to six months"; "take
Vitamin E daily"; "take Krill oil, Omega-3s, daily"; "take
probiotics daily"; "use stevia, organic agave nectar, raw
organic honey, raw organic sugarcane as sweeteners"; "eat only
100 percent organic grass-fed beef, lamb and veal"; "eat only
100 percent organic poultry"; "always eat a salad with lunch
and dinner"; "eat slowly and chew food thoroughly"; "be
conscious of your hunger and stop eating when full"; "start
meals with smaller portions"; "use Callahan techniques as
needed"; "don't worry about calories, fat or carbohydrates or
sodium"; "eat organic nuts and seeds in small quantities as
snacks"; "read out loud 'I weigh _____ ' many times throughout
the day and look at pictures of yourself with your ideal body
many times throughout the day"; "take Eleotin for at least six
months"; "receive individual personalized care from a licensed
healthcare practitioner who does not use drugs and surgery";
and, "eat only 100 percent organic food."
Q. Can you please read the things that are strongly suggested
you do during Phase 4?
A. "Drink organic chamomile tea"; "drink Wu Long tea"; "drink
organic green tea"; "drink organic Yerba Mate tea"; "use
organic coconut oil"; "use organic raw apple cider vinegar;
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"do yoga"; "use a rebounder or mini trampoline often"; "do
resistance training"; "get 20 minutes of sun daily"; get
saunas often"; "occasionally eat 100 grams of protein before
bed"; "occasionally take a fiber drink"; "add hot peppers and
hot salsa to food"; "add cinnamon to food"; "eat in a relaxing
atmosphere sitting at a table"; "play baroque classical music
and other relaxing music while eating"; "read books and watch
DVDs for education and deprogramming from the list in the
Appendix"; "listen to stress reducing CDs"; "do deep breathing
daily"; "get eight hours sleep per night, ideally between
10:00 p.m. and 6:00 a.m."; "get various types of massages
often"; "use AlphaCalm as needed"; "use a Q-Link, E-Pendant
and Biopro or similar product"; "take homeopathic human growth
hormone, HGH, as directed by a licensed healthcare
practitioner"; "use a shower filter"; "sing"; "go dancing";
"laugh"; "have a drink of wine, beer or alcohol to relax";
play with pets or children"; "play a musical instrument";
"give and get hugs often"; "buy food each day for consumption,
avoid stockpiling"; "take flax"; "try to include all tastes in
all meals"; and, "use Dianetics for psychosomatic and
emotional ills."
Q. And could you please read us things you must not do during
Phase 4?
A. "No fast food, regional or national chain restaurant
food"; "no diet, low carb, lowfat, non-fat or 'lite' food";
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"no food with nitrites"; "no monosodium glutamate, MSG"; "no
artificial sweeteners, such as NutraSweet or Splenda"; "no
trans fats, such as hydrogenated or partially hydrogenated
oil"; no super highly-refined sugars, such as high fructose
corn syrup, corn syrup, sucrose and dextrose"; "no non-
prescription, over-the-counter or prescription drugs. Must be
done under the supervision of a licensed physician."
Q. And, finally, things strongly suggested you do not do
during Phase 4?
A. "Don't go to restaurants that heavily advertise"; "limit
homogenized or pasteurized dairy products"; "limit wheat, use
rye instead"; "limit ice cold drinks"; "limit air-conditioning
exposure"; "limit exposure to fluorescent lights"; "limit
carbonated drinks"; "no genetically-modified food"; "no store-
bought juice in bottles, cans or cartons"; "no food from any
restaurant"; "no skin products with propylene glycol, sodium
laureth sulfate or mineral oil"; "limit highly-refined or
super highly-refined food, such as white sugar or white
flour"; "don't watch, read or listen to ads for food or
restaurants"; "don't buy food products that are heavily
advertised from publicly-traded food corporations"; "never use
your microwave."
Q. All right.
Now that we have an overview of the protocol, let's
skip to Chapter Five, which is the first place that the
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protocol is addressed in detail, which is in the binders at
4-A.
And I'm going to direct your attention on the screen
to certain parts of that chapter.
The chapter starts on Page 73, but let's go ahead and
go to Page 74, which lays out the four phases for the first
time.
Can you please read this first portion that is
underlined in red?
A. "Ideally, the weight loss cure protocol should be done in
four phases."
Q. All right.
So, let's start with Phase 1. How many days,
according to the book, does Phase 1 take to complete?
A. 30 days.
Q. And does it say in here whether Phase 1 is recommended or
required?
A. It's strongly recommended.
Q. Okay.
And moving on to Page 75 here, what is the purpose of
doing Phase 1?
A. "Phase 1 accelerates the entire process and helps
guarantee that the weight will not come back."
Q. All right.
So, let's talk just briefly, then, about Phase 2.
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How long does Phase 2 last?
A. A minimum of three weeks and a maximum of six weeks.
Q. All right.
How long does Phase 3 last?
A. Three weeks.
Q. And when does Phase 3 get done?
A. Immediately after completing Phase 2.
Q. And what's the purpose of doing Phase 3 according to this
section of the book that I've got my pen on right here?
A. "This is an important phase that keeps the weight off
permanently."
Q. All right.
Going on to Page 76 then, can you please read the
section that describes Phase 4?
A. "This phase is for the rest of your life. It contains the
simple, easy to follow dos and don'ts that make sure that the
hypothalamus does not get overtaxed and go back to the
abnormal state, creating low metabolism, high hunger, food
cravings and the abnormal storing of fat in the problem area
fat reserves leading to a return of the weight and the obesity
condition."
Q. All right.
So, you've already read the summary of Phase 1, but
I'd like to talk to you about a few of the portions in greater
detail.
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Again, it's recommended but not required. But at the
bottom of Page 76 where I've got my pen right now, right
before the section that says, "Water," can you please read why
you would do Phase 1?
A. It states, "The more you do in this phase also will
greatly increase your ability to keep the weight off
permanently and eliminate food cravings in the future."
Q. All right.
So, you talked about water. How much water are you
supposed to drink daily?
A. One-half to one gallon throughout the day.
Q. All right.
You spoke about walking a little bit earlier. Does
the walking get done inside or outside, according to the book?
A. Outside.
Q. And how long do you walk each day?
A. One hour nonstop.
Q. With respect to extra virgin raw coconut oil, which is
listed No. 3 there, how much of that are you supposed to take
per day?
A. Two teaspoons per day.
Q. All right.
You mentioned colonics during the summary section.
First of all, according to the book, what is a colonic?
A. It states, "Colonics are similar to a high enema. They
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gently flush the colon with water, eliminating impacted fecal
matter and toxins."
Q. And how many colonics should you be getting during the
30-day Phase 1 period, according to the book?
A. 15 colonics during the 30-day phase.
Q. All right.
Let's move on to apples. How many of those are you
supposed to eat every day?
A. Two.
Q. And grapefruit?
A. Two.
Q. All right.
Let's go on to Page 78.
Raw organic apple cider vinegar, how much of that are
you supposed to take?
MR. KIRSCH: Object to the form of the question, your
Honor.
BY MS. PERRY:
Q. According to the book.
MR. KIRSCH: Supposed. This is a recommended -- I
can say -- object to the form of the question, your Honor.
THE COURT: I will sustain the objection to the form.
BY MS. PERRY:
Q. During Phase 1, if you choose to do it, how much raw
organic apple cider vinegar should you take?
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A. One tablespoon three times a day.
Q. All right.
And what does it recommend you take with respect to
the colon cleanse in No. 8 there?
A. To take a colon cleanse product during the phase.
Q. Moving down to No. 9 here, "Eliminate, reduce Candida
yeast overgrowth."
What happens according to the book if you do not
address Candida?
A. Food cravings will persist.
Q. All right.
On to No. 10, you mentioned Eleotin tea a few times.
How much -- according to this section of the book, how long
should that be taken for?
A. A minimum of 90 days.
Q. Okay.
Moving on to green tea, how much of that per day?
A. One cup per day.
Q. All right.
12 through 15 pretty much speak for themselves, but
let me move you on. How much in 16, Yerba Mate tea, should
you be drinking per day?
A. At least one cup per day.
Q. All right.
And you mentioned before eating a large breakfast.
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If you could please read the portion of the book that starts
"An ideal breakfast" at the bottom of Page 79?
A. "An ideal breakfast would include organic eggs from
cage-free chickens; wild smoked salmon; organic rye toast,
making sure the bread is made with only rye flour, water,
yeast and salt; organic raw butter or organic raw extra virgin
coconut oil; organic asparagus; organic tomatoes; organic
beef, chicken or turkey sausages; organic beef, turkey or
chicken in any fashion; wild, not farm raised, fish in any
fashion; organic potatoes cooked in any fashion; organic
oatmeal; organic coffee or tea; organic apples; pears;
grapefruit; strawberries; plums; peaches; kiwis; mangos;
papayas; blueberries; raspberries; nectarines; or, melon. A
large breakfast is recommended."
Q. All right.
After a large breakfast, there are another five
meals. Eating dinner before 6:00 p.m., and then let's skip
down, if we could, to No. 20: Eat protein before bed. And,
specifically, how much and what kind?
A. "Eat 100 grams of organic beef, veal, chicken, turkey or
fish right before bedtime."
Q. All right.
Let's skip over, if we could, to No. 25. And what
does it say with respect to whether you can eat foods with
trans fats?
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A. It states you cannot eat food with trans fats.
Q. And what about with respect to No. 26, high fructose corn
syrup?
A. It states you cannot eat any food with any manmade
sweeteners.
Q. Let's go ahead and skip over to Page 83.
No. 32 is no microwaving. And what's the advice
there?
A. "Throw your microwave oven away."
Q. No. 33 is "limit carbonated drinks."
And what does it say with respect to carbonated
drinks?
A. "These should be avoided."
Q. Ice cold drinks, what does it say with respect to ice cold
drinks?
A. They should be limited or avoided altogether.
Q. Going down to No. 35, "no fast food," what does it say
with respect to fast food restaurants?
A. "All fast food restaurants, as well as national and
regional chains, should be avoided."
Q. Let's make our way over to Page 84. Specifically, I want
to talk to you about No. 37.
What kind of sweeteners are recommended here?
A. Stevia. And it states, "Other good options include raw
organic agave nectar, raw organic honey or raw organic
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sugarcane."
Q. All right.
Saunas you mentioned during the summary section. How
long should you be in the sauna, according to this section?
A. 20 minutes a day.
MR. KIRSCH: Your Honor, for completeness, I object.
I ask that they read the rest of that sentence.
MS. PERRY: Okay.
"Sweating for 20 minutes a day in a sauna can be
difficult to do with people's busy schedules. It is highly
recommended, highly beneficial and will increase weight loss
and elimination of toxins."
BY MS. PERRY:
Q. With respect to No. 39, how much ideally should you be in
the sun?
A. "20 minutes in the sun over a naked body each day is
recommended. Do not use any lotions, sunscreens or
sunglasses."
Q. With respect to sleep, what are the recommended sleep
hours here?
A. "Ideally, you should go to bed at 10:00 p.m. and arise at
6:00 a.m."
Q. I'd like to skip over to No. 43. 43 is "Digestive
Enzymes."
How many of those should you be taking, according to
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this section of the book?
A. With each meal.
Q. No. 44 is marked "No Lotions Or Creams." What is included
in that?
A. "These include lotions, creams, soap, moisturizers,
shampoos, bath gels, et cetera."
Q. And what does it advise with respect to those products?
A. It states, "It is advised that you reduce the amount of
products you put on your skin. If you do choose to continue
putting various products on your skin, choose 100 percent
organic products."
Q. No. 45 is rebounding. And according to the book, what is
rebounding?
A. Gently jumping on a mini-trampoline.
Q. And how much of that is recommended?
A. Five to ten minutes, once or twice a day.
Q. With respect to No. 46, "Massages," how many of those are
recommended?
A. "Getting as many massages as possible, as often as
possible is highly encouraged."
Q. Okay.
Let's go over to No. 49. You had mentioned earlier
electromagnetic chaos eliminators. What does it say -- what
does the book say -- that that is?
A. It states, "It's a device that neutralizes electromagnetic
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frequencies."
Q. All right.
You mentioned earlier reducing the amount of
air-conditioning and fluorescent lights. So, let's skip down
to 53.
How much chamomile tea is recommended?
A. One cup or more a day.
Q. You mentioned AlphaCalm earlier. How much of that is
recommended?
A. One capsule two times a day.
Q. All right.
Let's go ahead and skip over to 57 in Phase 1,
"Parasites."
What should you consider doing after Phase 1, 2 and
3?
A. Doing a parasite cleanse after the phases.
Q. With respect to liver cleanse, same thing?
A. Yes. A liver cleanse after each phase, 1, 2 and 3.
Q. Okay.
Let's go down to No. 60. Can you please read that
first sentence in No. 60?
A. "All non-prescription, over-the-counter and prescription
drugs and medications of every kind absolutely 100 percent are
proven to lead to weight gain and obesity."
Q. And, specifically, what does it say with respect to an
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aspirin?
A. It says not even aspirin is safe.
Q. All right.
So, what is advised in that regard, then?
A. It states, "It is advised only under the supervision of a
licensed healthcare practitioner that you avoid any and all
non-prescription, over-the-counter medications and
prescription drugs."
Q. And what percentage of people does the author of the book
suggest that this would affect?
A. 70 percent of Americans.
Q. All right.
And, then, moving on to the end of Phase 1 here in
the wrap-up section, does it say whether or not Mr. Trudeau
would actually recommend doing Phase 1?
A. He states, "If I operated a clinic where people came to
receive the weight loss cure protocol, every person would do
everything on this list for 30 days."
Q. All right.
Let's move on to Phase 2 then. And, specifically,
let's go to Page 93, which actually starts laying out what
Phase 2 is.
First of all, in the bold all caps section, what does
that say?
A. "This phase must be done under the supervision of a
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licensed healthcare practitioner."
Q. All right.
Could you please take us through, then, this section
and what is required in Phase 2 starting with Day One?
A. "Take an injection of between 125 and 200 units of HCG,
human chorionic gonadotropin, first thing in the morning";
drink one-half to one gallon of water throughout the day
ideally with coral calcium sachets"; "gorge yourself and eat
as much food as you can throughout the day"; and, "do any of
the items from Phase 1 as you choose."
"Day two -- "
Q. Yes, please. Day 2?
A. "Repeat Day 1."
Q. Please take us through Day 3?
A. "Weigh yourself immediately upon arising, after emptying
the bladder, without clothes"; "take an injection of between
125 and 200 units of HCG, human chorionic gonadotropin, first
thing in the morning"; "drink one-half to one gallon of water
throughout the day, ideally with coral calcium sachets"; "for
breakfast have only black coffee, organic preferred, or
organic green tea or organic Yerba Mate tea or organic Wu Long
tea or organic chamomile tea. You may have as much as you
desire.
"Throughout the morning, drink as much organic green
tea, organic Yerba Mate tea, organic Wu Long tea and/or
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organic chamomile tea and water as you desire. Always make
your tea with pure water, never tap water."
"For lunch, eat 100 grams, weighed raw, of grilled,
no fat or oil, organic grass-fed beef or veal, or organic
chicken breast skinless, or wild Chilean sea bass, or
flounder, or sole, or halibut.
"One large handful of the following organic
vegetables: Spanish, chard, beet greens, lettuce of any kind,
tomatoes, celery, fennel, white, yellow or red onions, red
radishes, cucumbers, asparagus or cabbage.
"These can be eaten raw, steamed or grilled without
oil or gently boiled. Do not mix vegetables in the same
meal."
Q. Does it say do or do not?
A. I'm sorry. "Do mix vegetables in the same meal."
"One small organic apple or small organic grapefruit
or a handful of organic strawberries.
"You may season any of the food with the juice of
half an organic lemon, white or black pepper, organic raw
apple cider vinegar, sea salt, organic garlic, organic basil,
organic parsley, organic thyme, organic marjoram, or any other
organic herb. Absolutely no oil, butter, dressings or
anything else.
"Dinner: The same choices as for lunch. Do not,
however, have two meals exactly the same in the same day."
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Q. In addition to those things for breakfast, lunch and
dinner, what does Phase 2 entail?
A. "Black coffee, organic green tea, Wu Long tea, organic
Yerba Mate tea and organic chamomile tea can be consumed in
any quantity as often as you wish throughout the day. You
should drink at least one cup Wu Long, one cup Yerba Mate tea
and one cup chamomile tea each day.
"No medicines or over-the-counter, non-prescription
drugs should be taken. Done under supervision of a physician.
"No cosmetics other than lipstick, eyebrow pencil and
facial powder should be used.
"No creams, lotions or moisturizers or anything
should be put on the skin.
"You must eat everything as described. Do not skip
meals, and each meal must consist of the protein, the
vegetables and the fruit.
"You may eat the fruit in between meals instead of
with the meal if you choose."
Q. All right.
The next section is encouraged but not required. So,
let's go ahead and skip from Day 3 to Days 4 through 45,
please, which is on Page 96.
For Day 4 through Day 45, what are you supposed to
do?
A. "Follow the three -- " "Day 3 instructions every day for
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the entire course of treatment. In order to achieve permanent
results, you must continue the treatment exactly as described
for a minimum of 21 days and a maximum of 45 days."
Q. And under "Duration," how long does it say it must last at
a minimum?
A. A minimum of 21 days.
Q. All right.
So, if you could please then go down to the bottom of
Page 96 and read the section I have in red that begins "The
Simeons weight loss cure protocol"?
A. It states, "The Simeons weight loss cure protocol, as you
can see, consists of a daily injection of HCG, combined with a
very strict and specific food consumption plan. The specific
foods used cause chemical reactions in the body, combined with
the HCG to activate the hypothalamus into releasing the secure
abnormal fat reserves, causing dynamic weight loss without the
loss of muscle or structural fat. The amount of food consumed
is approximately 500 calories."
Q. All right.
If you could please read the section on 97 that
starts "It is of the utmost importance"?
A. "It is of the utmost importance for this protocol to work,
you must strictly follow the exact procedures to the letter."
Q. Okay.
It then goes through the last injection. And, then,
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at the bottom of Page 97 it speaks about hunger. What does it
say about hunger?
A. It states, "Hunger will vary for each individual. Hunger
pangs will have -- will last no more than five to seven days.
The majority of people have no hunger pangs at all, even from
the first day or have mild hunger pains that last only
three -- " "one to three days. The more you did in Phase 1,
in many cases, determines how long the hunger pains last."
Q. I'd like to direct your attention now on to Page 98, which
talks about what happens if you do the diet without the HCG.
Could you please read that portion that begins "When
people eat this diet without the HCG"?
A. It states, "When people eat this diet without the HCG
injections, they do, in fact, lose weight. However, they do
not lose the problem area secure fat deposits. Their body is
not reshaped. They lose muscle and structural fat. They have
massive hunger and fatigue. When they stop the diet, they
immediately gain all the weight back plus more."
Q. All right.
Let's go ahead and move on to Phase 3, which begins
"This is an important phase of the treatment." Can you please
then read what the purpose of Phase 3 is, according to the
book?
A. It states, "This is a phase that resets metabolism to a
high normal state, eliminates future intense and constant
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hunger and prevents the abnormal future storing of fat in the
secure problem area fat reserves in the body."
Q. All right.
And it says that you are allowed to eat as much food
and any type of food you choose, but could you please read
those exceptions to that particular passage?
A. "No sugar, dextrose, sucrose, honey, molasses, high
fructose corn syrup, corn syrup or any sweetener"; "no starch,
including breads, pastas, any wheat product, white rice,
potatoes, yams, et cetera; "no artificial sweeteners,
including aspartame, Sucralose, NutraSweet, Splenda,
saccharin, et cetera"; "no food from fast food restaurants";
"no trans fats, including hydrogenated or partially
hydrogenated oils"; "no nitrites"; "limit non-prescription and
prescription drug use"; "limit ice cold drinks"; "limit
exposure to air-conditioning"; "limit exposure to fluorescent
lights."
Q. Okay.
Then we've got some highly suggested and recommended,
which I'm going to skip over for now and take us to Page 101.
Could you please read that portion on Page 101 that
is outlined in red?
A. "As long as your weight stays within two pounds of the
weight reached on Day 1 of the last injection, you are fine.
The moment the scale goes beyond two pounds, even by only a
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few ounces, you must do the following steps."
Q. And what do those skips -- those steps -- include?
A. "Skip all food until 6:00 p.m."; "drink as much water, up
to one gallon as you can"; "in addition to the water, drink as
much of the various teas that are recommended"; and, "in the
evening, eat the biggest steak you can from grass-fed organic
beef."
Q. And, then, in addition to your very large steak, what else
are you allowed to eat that one day?
A. "You may have either a large organic raw tomato or large
organic raw apple."
Q. Okay.
At the bottom of Page 102, it talks about why Phase 3
is important and, then, also gives basic guidelines that will
help change past behavioral habits that lead to obesity.
So, what are those behavioral habits that need to be
changed?
A. "Sit at table and be relaxed when eating a meal"; "do not
eat in front of the TV, in the car, or standing up"; "eat
slowly and consciously"; "chew food thoroughly"; "play
relaxing music while eating"; "put smaller amounts of food on
your plate and don't go for seconds"; "stop eating when you
are no longer hungry and are full and satisfied."
Q. All right.
And it says, "You should never gain more than two
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pounds during the phase without immediately correcting the
situation by doing the skipping meals and steak protocol," we
just discussed.
Directing your attention now toward the bottom of
Page 103, what does it say during Phase 2 with respect to
protein deficiency?
A. It states, "During Phase 2, the patient is just above the
verge of protein deficiency."
Q. And, then, it goes on to state that because of the HCG
injections, it's being fed back into your system.
With respect to whether or not you should be strictly
following the recommendations or advice in this section, what
does it say at the bottom?
A. It states, "It is advised that you follow these
instructions exactly as described. Never do this or any
weight loss program without being supervised by a licensed
healthcare practitioner."
Q. All right.
Let's go on now to Page 105, which transitions from
Phase 3 to Phase 4. And what is the last sentence there
before Phase 4 is discussed?
A. It states, "Now, let's make sure that you keep this
corrected condition permanent -- " "keep this corrected
condition permanently and don't screw up your hypothalamus,
again."
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Q. All right.
So, moving on to Phase 4, does it say at the bottom
how long Phase 4 will last?
A. It states, "Phase 4 is for the rest of your life."
Q. All right.
How does it describe the steps that are about to
follow?
A. It states, "The phase will consist of some basic and
easy-to-follow dos and don'ts that will become your new,
exciting habits."
Q. Let me just skip ahead here.
How many of those easy-to-describe dos and don'ts are
there in Phase 4?
A. 50.
Q. All right.
It starts at Page 106, which gives us in the middle
there the simplest rule to follow.
And what is the simplest rule to follow, according to
this section?
A. It states, "The simplest rule to follow is to eat anything
you want, as much as you want, as often as you want. The only
caveat is only eat 100 percent organic food."
Q. All right.
And it goes on to talk a little bit about whether or
not that's possible, but what does it say with respect to
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keeping the weight off permanently?
A. "To keep the weight off permanently and to achieve
vibrant, dynamic health, here's a list of dos and don'ts."
Q. All right.
The first one there is the eat only 100 percent
organic food.
What is No. 2?
A. "No brand-name food."
Q. And what does that mean?
A. It states, "The rule here is not to eat food produced by
publicly-traded corporations."
Q. All right.
And, then, why should we not do that?
A. To avoid supporting them by never buying their products.
Q. All right.
No. 3 is, what?
A. "No fast food, regional or national chain restaurants."
Q. And the last sentence of that section, if do you that,
what will happen?
A. It states, "If you go back to eating food from these
unscrupulous companies, you will get fat, again."
Q. All right.
No. 4 is the Candida cleanse. What does the book
state is the purpose of doing the Candida cleanse?
A. "In order to make your weight loss permanent and to ensure
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no food cravings or feelings of deprivation, it is vital that
you do a Candida cleanse as soon as possible."
Q. Let's go onto Page 108, No. 5, cleaning your colon.
How often do you need to do that?
A. "It is necessary for you to clean your colon at least once
per year."
Q. And what does that mean, according to this section of the
book?
A. It states, "Good colon cleanses include a series of five
to 15 colonics in a 30-day period."
Q. All right.
We then have liver cleanse, one-half to one gallon of
water and a parasite cleanse.
Going down to No. 9, "Do a heavy metal cleanse."
What does it suggest for that?
A. "The best known method is intravenous chelation performed
by a licensed healthcare practitioner."
Q. All right.
It goes on to say that there are some that can be
taken at home.
No. 10, what is that?
A. "Walk for one hour outside every day."
Q. All right.
No. 11. How many meals per day?
A. Six times per day.
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Q. And how long before you go to bed do you need to finish
your dinner?
A. It states, "Finish your dinner three and one-half hours
before you go to bed."
Q. All right.
Then you've got protein requirements similar to what
we saw earlier.
I'm going to go down to 26 and 27 here. What are
those?
A. "Use a rebounder as often as possible"; "do yoga as often
as possible."
Q. And, then, 28, is that another form of exercise?
A. Yes.
"Do resistance training, such as weight lifting as
often as possible."
Q. All right.
Let's go ahead and move down.
In between 38 and 39, could you please read what that
says?
A. "The following items must be avoided at all costs, as they
will quickly and easily make you gain weight."
Q. What is No. 39?
A. "No super highly-refined sugars. These include high
fructose corn syrup, corn syrup, sucrose and dextrose. No
genetically-modified food. If it doesn't say 100 percent
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organic, it is probably genetically modified."
Q. And moving down to 45.
A. "No meat, poultry or dairy that is not 100 percent
organic."
Q. All right.
So, moving on to 111 in the middle, it starts with,
"This list may seem overwhelming and difficult. I can tell
you it is relatively easy."
And, then, how do you go about making this relatively
easy, according to this section?
A. "Shop at your local farmers market, your local health food
store or stores such as Whole Foods, Wild Oats or Trader
Joe's."
Q. And can you please read the anecdote that appears a couple
lines down?
A. He states, "I recently went into a major supermarket chain
to do some investigating. I looked at mustard, ketchup and
bread. Every single jar of mustard had high fructose corn
syrup in it. Every single bottle of ketchup had high fructose
corn syrup in it. Most amazingly, every single loaf of bread
had some kind of super highly-refined processed sugar, such as
high fructose corn syrup, corn syrup, dextrose, malto
dextrose, honey, molasses, et cetera."
Q. Okay.
Let's move on to Page 112. And there's a specific
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reference here to the cleanses. And what is the
recommendation it gives with respect to having a doctor
involved?
A. "Always consult a licensed healthcare practitioner before
and during your cleanses."
Q. All right.
So, that takes us through some of the details, Phases
1, 2, 3 and 4.
Chapter Six, I believe you said, was frequently asked
questions. So, I'd like to now turn to that, which is No. --
Exhibit 4-B. And let's just talk about a few of those
questions and answers that are given in the book.
First of all, on Page 115 of that section, what does
it say with respect to understanding the protocol exactly?
A. It states, "In order for you to safely achieve the results
from the weight loss cure protocol, it is essential that you
fully understand all of the specifics and nuances of this
protocol and do it exactly and precisely as directed, under
the supervision of a medical doctor."
Q. Okay.
So, let's turn to the first question and answer here.
And I'm going to ask you to read the entire answer. The
question is: "Where do I get HCG?"
A. It states, "HCG is a natural substance that is produced in
the human body during pregnancy. Pharmaceutical companies
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extract this substance from the urine of pregnant women. It
is purified and made into pharmaceutical-grade HCG. Although
it is a natural substance, it is classified as a drug and
available by prescription only. You must get HCG from a
medical doctor with a prescription. In countries around the
world -- " I'm sorry. "In countries around the world, doctors
may prescribe HCG for a number of conditions. In most
countries, medical doctors are allowed to prescribe HCG for
use in the treatment of obesity. In America, HCG is one of
the only pharmaceutical compounds that the FDA has
specifically said should not be used in the treatment of
obesity. There is much debate of whether a medical doctor in
America has the legal right to prescribe HCG to be used with
the Simeons weight loss cure protocol. I suggest showing your
medical doctor this book and have them read Simeons' original
manuscript Pounds and Inches: A New Approach to Obesity. I
am not suggesting or recommending that you in any way break
any federal or state law. I am suggesting that in America,
you have a constitutional right to do what you feel is best
for your own body. It is ludicrous that people around the
world have easy access to HCG under the supervision of a
medical doctor and are fully able to do the Simeons weight
loss cure protocol and Americans must continue to suffer."
Q. Can you please keep reading?
A. "HCG and the Simeons weight loss cure protocol can also be
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procured from doctors outside of the United States and legally
brought back into the country for personal use. This is
provided you have a valid prescription from a licensed medical
doctor in that country. I, myself, went to Germany, got a
prescription and received enough HCG injections to do the
entire six-week protocol. I then legally returned to the
United States with the prescription and the HCG and finished
the protocol in America. It is my understanding that this is
a legal option.
Q. All right.
Let's skip the next question and answer, since we
talked about that a little bit, and go on to the next one.
"Can I start the program with Phase 2 without doing
any of the things in Phase 1?"
And what's the first part of that answer, please?
A. "Yes. However, if you do not do Phase 1 to at least some
degree, you will not be handling and addressing many of the
new causes of your overweight condition."
Q. And how about, "Do I have to do Phase 3?"
A. "Yes. Phase 2 and Phase 3 are, in fact, the original
Simeons weight loss cure protocol. Phase 3 is necessary to
stabilize your weight and reset the hypothalamus so that the
weight does not come back. It is vitally important that you
follow Phase 2 and Phase 3 exactly as described. You must
strictly adhere to Simeons' instructions in Phase 2 and Phase
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3."
Q. Moving on to Page 118, let me ask you to please answer the
question, according to the book, "What does the FDA say about
HCG?"
A. It states, "The FDA, the National Institutes of Health and
even the manufacturers of HCG themselves state, 'HCG has no
known effect on fat mobilization, reducing appetite or sense
of hunger or body fat distribution.' They further state, 'HCG
has not been demonstrated to be an effective adjunct therapy
in the treatment of obesity and does not increase fat losses
beyond that resulting from calorie restriction.' They even
say specifically that, 'HCG should never be used in the
treatment of obesity because serious problems can occur.'
These statements are blatantly and flagrantly false. There is
absolutely no documentation or substantiation backing up and
proving that these negative statements are true. The
statements that the government uses to back up these lies were
conducted as part of the massive cover-up of the truth about
the Simeons weight loss cure protocol. In these studies, the
researchers purposely caused results to be negative. First,
they did not follow the Simeons protocol exactly as
instructed. Dr. Simeons was very clear that if the protocol
was not followed exactly and precisely as described, the
results would not be achieved. The researchers changed the
specific mentioned food items to other items, claiming that
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the calories were similar; therefore, would not affect the
results. This is a fatal flaw. Most importantly, the
researchers mixed the HCG solution weeks in advance before
giving the daily injections to patients. Simeons was very
clear that HCG should be mixed daily. It cannot be mixed and
stored for later use. Once HCG is mixed, it begins to lose
potency very quickly. Within 24 hours, the potency of the HCG
is completely gone. Therefore, the injections were completely
useless. In effect, the test subjects were receiving no HCG
at all. The studies showed that all people on the diet lost
weight, therefore concluding that the HCG injections had no
positive effects.
"The truth is that in all properly-conducted studies,
people on the diet without HCG and people on the diet with HCG
did, in fact, both lose weight. However, in these properly-
controlled studies, the group receiving the HCG with the diet
lost the most weight, had no hunger and, more importantly,
lost dramatically more inches. The HCG group saw a dramatic
reshaping and resculpting of their bodies. The HCG group lost
fat in the problem areas. The FDA, the National Institutes of
Health and the drug companies are simply lying to us in order
to protect the profits of the food companies, the
pharmaceutical companies and the diet industry."
Q. And can you read the next highlighted portion following
the question, "Is HCG legal for use in a weight loss regime?"
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A. Can you move it over.
Q. Sorry. I will actually let you see it.
A. It states, "It all depends on what country you live in.
In America, the FDA makes the erroneous statement that HCG
should never be used in the treatment of obesity. They are
adamant about this."
Q. All right.
Then moving on to the bottom of Page 120, "According
to the FDA," can you please read that section?
A. "According to the FDA, it is, in fact, legal for doctors
in America to prescribe medications for purposes that are not
approved by the FDA. This suggests that doctors in America
can prescribe HCG to be used as part of the Simeons protocol,
even though this purpose has not been approved by the FDA."
Q. All right.
Which brings us to the next question, which says, "My
doctor says this won't work and is not safe."
What is the first sentence of the answer there?
A. It states, "Find another doctor."
Q. All right.
MR. KIRSCH: Your Honor, I'm going to object to that
last question and answer as irrelevant, subject to the Court's
earlier instruction to the jury that the effectiveness of the
protocol is not relevant.
THE COURT: No. I will re-instruct the jury that one
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of the issues they are to decide is not whether the protocol
is effective. However, that does not mean that that statement
is irrelevant for all purposes.
So, I will overrule the objection.
BY MS. PERRY:
Q. I'm going to skip us to Page 128 and, specifically, the
first question that is contained on 128.
The question is: "Does the weight loss protocol get
rid of cellulite?"
And what is the answer, please?
A. It states, "In most cases, absolutely yes. If you are
very strict and fully commit to all of the dos and don'ts in
Phase 1, complete a full course of treatment in Phases 2 and 3
and partake in all the suggestions in Phase 4, cellulite can
vanish completely in a one- to six-month period of time."
Q. All right.
And now let's read some portions of the next answer.
The question is: "How do I prepare and inject HCG?"
So, could you please read the sections that are
highlighted in red there?
A. "HCG is available by prescription only. It is a pure
substance extracted from the urine of pregnant women. The
form that is to be used in this protocol is human chorionic
gonadotropin, not any animal form. It should come as a highly
soluble powder."
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Q. Okay.
And, then, a few lines down?
A. "The HCG should be extracted from the urine and not from
the placenta."
Q. All right.
A few lines below that, please.
A. "The powder should be sealed in small ampoules where the
amount is stated in international units."
Q. All right.
After a little more advice, what does it say about
what you need to do after you get the powder from the ampoule?
A. "A suitable solvent solution is always supplied in a
separate ampoule in the same package. Once the HCG powder is
mixed with the solution, it must be used within a few hours."
Q. Okay.
And, specifically, how is the injection performed?
A. It states, "The injection is done deep intragluteally in
the outer upper quadrant of the buttocks. Ideally, the
injection should not be given into the superficial fat layers
but should reach the muscle. It is important that the daily
injection be taken at the same time each morning. Always do
these injections while under the care and supervision of a
medical doctor."
Q. All right.
Directing your attention down towards the bottom of
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that page, the question is, "How do I measure the 100 grams of
protein?"
And what is the answer, please?
A. It states, "Use a highly accurate small kitchen scale.
Always weigh the protein raw."
Q. All right.
And the next question is whether you can substitute
smoked fish, pickled fish or deli meats. What's the answer?
A. "Absolutely not. Never use deli meats."
Q. And the meat must also be 100 percent organic.
Directing your attention to Page 130, with respect to
the amount of meats, can you please read the section that is
highlighted in red?
A. "The amounts must be extremely accurate. 100 grams is 100
grams."
Q. All right.
Down a little bit further on that page, the question
is: "Can't I change some food items on the diet?"
What is the answer?
A. It states, "No. You must be very strict in following the
diet exactly if you want to achieve results."
Q. And, then, specifically with respect to what Simeons had
to say about this, what is the quote that is highlighted here
in red?
A. It states, "He said that the diet used in conjunction with
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the HCG injections must not exceed 500 calories per day.
Q. All right.
And, then, the wrap-up to that particular answer,
which is on Page 131, what's the takeaway point there?
A. It states, "If it's not on the list, do not eat it."
Q. All right.
Directing your attention to the bottom of Page 131,
the question is: "Can I use artificial sweeteners while on
this protocol?"
What is the answer?
A. "No. You should never use any artificial sweeteners ever
again, for as long as you live."
Q. All right.
The question is: "Can I use MSG?"
What is the answer?
A. "No. You should never eat anything with MSG in it ever
again, as long as you live."
Q. All right.
Let's go on to Page 132. The question is: "Can I
swim or use hot tubs?"
And can you please read the portion that is
highlighted in red?
A. "I do not recommend it because almost all swimming pools
today are loaded with deadly chlorine."
Q. All right.
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The next question is: "While on the protocol, can I
use gum, mints, lozenges or cough syrup?"
What is the answer?
A. It states, "No, no, no, no."
Q. All right.
I'm going to --
THE COURT: Counsel, may I inquire at this point,
approximately how much longer you have on your direct
examination?
MS. PERRY: About 20 minutes, Judge.
Then we will take our afternoon break at this point.
We are going to take a 15-minute break, ladies and
gentlemen, so you can stretch and relax. We will return and
continue with testimony after that.
(Jury out.)
THE COURT: You may step down.
Anything we need to address before we break?
MS. PERRY: No, Judge.
MR. KIRSCH: Your Honor, I just have one quick
question. The jurors are bringing the notebooks and their
notes back and forth from the jury room. I thought at the
beginning of the case you had told them to leave them on their
chairs when they left.
THE COURT: No, I did not.
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131
MR. KIRSCH: Okay.
THE COURT: Do you have a problem with that? I would
be happy to address it if you --
MR. KIRSCH: No, no. I think you've told them,
"Don't begin deliberating until you've heard all the
evidence." I just don't want them looking at their -- at the
binders and going through things if they're sitting in the
jury room.
But I thought that you had said just leave them on
their chairs when they leave the courtroom. That's all, your
Honor.
THE COURT: No, I did not.
I do not see a problem with it. As far as I am
concerned, the jurors' notes are essentially the jurors'
recollection of the evidence. Some use notes, some just keep
it in their heads.
So, I do not see a problem with them taking them back
in the jury room, as long as they do not deliberate or discuss
them, which they have been instructed not to do several times.
MR. KIRSCH: It's not the notes, your Honor. It's
the binders that I'm talking about, the actual exhibits.
THE COURT: Oh, I see. The binders.
If you want me -- I will instruct them as to that. I
will instruct them as to that. I do not think it is of great
moment, but if you feel more comfortable that way, I will
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instruct them to leave the binders here.
THE COURT: Sure.
Anything else?
THE COURT: Okay. 15 minutes.
(Brief recess.)
(Proceedings out of the hearing of the jury:)
THE COURT: Any reason not to bring the jury out?
THE COURT: Can you please bring them out?
(Jury entered the courtroom.)
THE COURT: You may resume your direct.
If we could have the ELMO back?
BY MS. PERRY:
Q. All right. Inspector Carrier, I believe we left off in
the Frequently Asked Question section, which was Tab 4-B at
Page 136.
The question at the top is, "The instructions in all
the phases call for a large consumption of water and teas. Is
this necessary?" And then it goes on to describe the one-half
gallon, up to a maximum of one gallon per day.
And then can you clarify, according to the book, is
-- are the teas in addition to or instead of the water?
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A. It states, "In addition to the water intake you should be
drinking several cups of the recommended teas."
Q. All right. Next question down is, "Must I eliminate
cosmetics, moisturizers, lotions and creams during Phase 2?"
And the short answer, first sentence, please?
A. "Yes."
Q. All right. I would like to move us forward to Page 141.
The question asked is, "Will I gain the weight back?"
And can you please read that first section of the
answer?
A. "If you go back to eating fast food, restaurant food, and
food containing trans fats, high fructose corn syrup, super
highly refined food, artificial sweeteners, meat, poultry and
dairy with growth hormone and antibiotics,
et cetera, et cetera, et cetera, you will, in fact, mess up
your hypothalamus again and regain the weight. If, however,
you follow the dos and don'ts in Phase 4, the weight should
never return."
Q. All right. I would like to direct your attention now to
the -- Page 143. The question is again about the organics.
It is, "Do I really need to eat organic grass fed beef,
organic poultry and organic milk, cheese and dairy products?"
And, please, what is the short answer to that
question?
A. "Yes."
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134
Q. The next page, 144, the question is, "Why are fast food,
and regional and chain restaurants so bad?"
Can you please read the first sentence of that
answer?
A. "All restaurant food is designed to make you fat."
Q. All right. Moving over to page is 145, and I believe --
we talked about earlier in the summary section the apple
protocol. This question is, "What if I show no weight loss
for four days in a row while on Phase 2?"
And what is the answer for what you were actually
supposed to do about that?
A. "If a person weighs themselves and notices that the weight
stays the same for four days in a row, the patient is told
that after weighing on the fourth morning, to only eat six
organic apples for that day."
Q. All right. Let's move forward again to Page 148. The
question is, "Is buying food in bulk a good idea?"
And what is the answer to that, please?
A. "No. Research shows that buying in bulk causes people to
eat more frequently and larger quantities of food. Ideally,
keep little food in your home. Buy food on a daily basis for
daily consumption."
Q. All right. Let's skip us over then to Page 159. The
question is --
(Brief interruption.)
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135
THE COURT: All right. Proceed.
BY MS. PERRY:
Q. The question is, "Do drugs really make us fat?"
And can you please read the first two sentences of
that answer?
A. "Yes. All nonprescription over-the-counter and
prescription drugs cause disease and obesity."
Q. All right. That takes us to the end of the Frequently
Asked Question section as well as the portion that are in the
jury binders.
MS. PERRY: So, Judge, I'm now going to ask
permission to pass out the copies of the book for a few brief
questions about the end of the book.
THE COURT: You may do so.
(Brief pause.)
BY MS. PERRY:
Q. Okay. So we've talked about all the way up to Chapter 7,
the title of which is Curing Food Cravings, Emotional Eating
and Uncontrollable Compulsive Eating. It starts at Page 161.
I would like to talk to you about a couple of
portions of Chapter 7 that reference the protocol that we've
just been talking about in Chapters 5 and 6, and specifically
first Page 163.
And it references -- or discusses whether you need to
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136
do all the different phases and what the point of doing all
the different phases together is.
Can you please read that portion at the bottom of the
page, which I have underlined in red?
A. "The method of clearing and wiping out the causes of food
cravings is to do the weight loss cure protocol in its
entirety. Doing all the steps in Phases 1, 2, 3 and 4
addresses and corrects all the causes for food cravings and
compulsive overeating."
Q. All right. Again, on Page 165 it discusses specifically
what the point is of doing Phase 4. Could you please read the
Subsection 1 on Page 165.
A. "Don't eat the forbidden foods as listed in Phase 4 as
they create drug-like physical addictions. This is absolutely
essential. When I say never, I mean never. Would you
consider that you could on occasion smoke some crack cocaine
or shoot up some heroin and not become addicted? The food at
fast food restaurants and the ingredients that I suggest be
forbidden can be as physically chemically addicting as heroin
or crack cocaine."
Q. All right. In addition to these things, what else is
Chapter 7 about, generally speaking?
A. He discusses emotional eating, uncontrollable overeating,
compulsive eating, binging. He also discusses a technique
that he uses when people have -- do compulsive overeating. He
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137
calls it the Callahan Technique.
Q. All right. Is this the technique that was described in
two of the infomercials regarding the Haagen Dazs story?
A. Yes.
Q. Okay. And directing your attention to Page 174, is this
where the basic Callahan Technique is laid out in the book?
A. Yes.
Q. And can you please read that to us?
A. "This technique should be done every time you have a
strong urge to eat or have any food cravings.
"Step 1: Ask yourself on a scale of 1 to 10, how
severe is your urge or food craving? This is very important.
"Step 2: With two fingers from your right hand tap
15 to 20 times directly under the right eye. About half an
inch to one inch is perfect. You do not have to tap very
hard.
"Step 3: Now tap directly under the right armpit,
approximately three to four inches down. Tap 15 to 20 times.
"Step 4: Find the collarbone point. This is located
approximately one-half inch below the small dip in the front
of the neck and two to three inches over on the right side of
the chest. You are looking for the top of the collarbone.
Tap 15 to 20 times.
"Step 5: Find the gamut spot on the back of the left
hand. This is located between the little finger and ring
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138
finger, approximately one inch below the V on the back of the
hand. Tap repeatedly on this spot as you do the following:
Keep your eyes open for five seconds. Close your eyes for
five seconds. Open your eyes for five seconds. While keeping
your head still, move your eyes down to the right and hold for
five seconds. While keeping your head still, move your eyes
down to the left and hold for five seconds. Roll your eyes in
a circle to the right. Roll your eyes in a circle to the
left. Count to five out loud. Hum a tune for five seconds,
out loud. Count to five out loud again. While keeping your
head straight, look down as far as you can and slowly move
your eyes upward until you are looking up as high as you can.
"Step 6: Take three slow, long, deep breaths.
"Step 7: Ask yourself on a scale from 1 to 10 what
your urge or food craving is now. If the urge or food craving
is gone, you are finished with the process. If it is the
same, higher or slightly lower, repeat the process one more
time."
Q. And does it talk a little bit further down about if this
is the only technique that you may need to use to get rid of
your cravings?
A. Yes. It states, "Sometimes additional patterns and more
advanced techniques are required for complete permanent
results. These can be done by talking to a licensed
practitioner on the phone who uses a special voice recognition
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139
technology that determines what points and sequence should be
used."
Q. And then I would also like to talk to you a little bit
about how many times you may need to do the Callahan
Technique.
Going back to pages 170 and 171, with respect to how
many times you may need to do this, I would like to direct
your attention to the bottom of the page, the paragraph that
begins, "Most people," and I'm going to ask you to read the
sections in red.
A. "Most people may need to use the Callahan Technique
several times each day."
And then further down, "For the first several days or
weeks the patient may be using the Callahan Technique many
times each day."
Q. All right. Directing your attention to Chapter 8, which
is entitled The Proof Revealed and begins at Page 177, what,
generally speaking, is Chapter 8 about?
A. Testimonials by anonymous sources are given.
Q. All right. I would like to direct your attention to one
of those testimonials on Page 183. And does it speak about
whether or not U.S. doctors will prescribe HCG according to
this testimonial?
A. It states, "I had exceedingly good results on HCG
injectable diets many years ago, but the FDA and AMA have
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since intimidated almost all U.S. doctors into not prescribing
it for obesity treatment."
Q. And then I would like to circle you back to Chapter 9,
which is where we started this.
MR. KIRSCH: Your Honor, I'm going to object to that
if it's for the truth of the matter asserted. It's a
testimonial, it's hearsay, your Honor.
THE COURT: Is it being offered for the truth of the
matter asserted?
MS. PERRY: It's being offered merely for what is in
the book about the availability of HCG.
THE COURT: I'll overrule it. The entirety of the
book is part of what the jury must take into consideration in
determining the issues in this case, and it is not being
offered to prove the truth of the matter asserted.
BY MS. PERRY:
Q. All right. So let's circle us back to Chapter 9, which is
where we began all this.
We talked about the summary of the four phases, but I
would like to end with just a few lines from that beginning
section. And let's start with Page 209.
It talks a little bit about the difference between
fact and opinion. Can you please read that first section that
I have highlighted in Chapter 9?
A. "This book covers a large amount of material about the
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141
cause of obesity, the cures for obesity and the reasons for
the coverup, denial and suppression of these true facts. All
of this information comes from, and is supported by, thousands
of credentialed experts from around the world. Other experts,
however, may disagree with these findings even though they are
not merely opinion, but factually scientifically based."
Q. All right. And then let's go ahead and end with some
quotes from Dr. Simeons, which appear on Page 211. And it
says in the third paragraph down, "Dr. Simeons concluded the
following." Could you please read that first part of the Dr.
Simeons quote?
A. It states, "The HCG plus diet method can bring relief to
every case of obesity but the method is not simple. It can be
time-consuming and does require perfect cooperation between
physician and patient. Each case should be handled
individually. The physician must be available to answer
questions, allay fears and remove misunderstandings. The
patient should be checked daily."
Q. And then it goes on to talk about whether or not there's
room for any change to the protocol. What does it state about
that?
A. "I must beg those trying the method for the first time to
adhere very strictly to the techniques and instructions
outlined."
Q. And then on the very next page, at the end of this quote,
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Carrier - cross
142
does the defendant have anything to say about whether or not
he agrees with Dr. Simeons with respect to the weight loss
care protocol?
A. He states, "I echo the words of Dr. Simeons."
MS. PERRY: May I have one moment, your Honor?
(Brief pause.)
MS. PERRY: Nothing further.
THE COURT: You may cross-examine.
CROSS EXAMINATION
BY MR. KIRSCH:
Q. Good afternoon, Agent Carrier.
A. Hello.
Q. I'm going to go through several paragraphs of the book
that you haven't been through. But first, I would like to
show you what's in evidence as Exhibit 5.
Do you have Exhibit 5 up in front of you?
A. No, I don't.
Q. It is the consent order.
A. No, I don't have it in front of me.
MR. KIRSCH: May I just publish it on the ELMO, your
Honor?
THE COURT: If it's in evidence -- is this Government
Exhibit 5?
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Carrier - cross
143
THE COURT: Okay.
BY MR. KIRSCH:
Q. All right. Do you recall this document?
A. Yes.
Q. This is the 2004 consent order that you testified to on
direct examination, correct?
A. Yes.
Q. Entered into on -- or filed on September 2nd, 2004. And
we're looking at here Page 2 of 30, correct?
A. Okay. Yes.
Q. And on direct examination I think Counsel for the
government called your attention to Page 8. Do you see down
there at the bottom it says Page 8 of 29?
A. Yes.
Q. At the top it says Page 9, but that's because there's a
title page.
And calling your attention to the one phrase, the
eight words there that I've underlined, correct?
A. Yes.
Q. And it was your testimony on direct examination that the
consent order required that my client, Trudeau, not
misrepresent the content of the book in infomercials, right?
A. That was one of the things listed in the order, yes.
Q. But that's the only thing in the order that's at issue
here and that the government has alleged that he's violated,
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Carrier - cross
144
right?
A. Yes.
Q. And that's all it says on that point, right?
A. It says a lot more but that is what we're focusing on.
Q. But does it say anything else in the consent order about
misrepresenting the content of the book?
A. It talks about -- specifically about the infomercials.
Q. Well, right -- that's right here, right? (Indicating.)
A. Correct.
Q. All right.
A. Unless -- yes.
Q. There's nothing -- go ahead?
A. It's part of the sentence.
Q. Yeah, that's part of the sentence.
But there's nothing in this order that talks further
about what the defendant can't do with respect to his books
and the information contained in them in infomercials that
Counsel for the government didn't show you, did they -- or
does it?
A. The order is many pages. This is one part of the order.
Q. But that's the only part that's at issue in this case,
right?
A. Correct.
Q. And that's all it says about it, right?
A. In this sentence, yes.
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145
Q. Does it say anything else about it anywhere in the order?
A. You would have to direct me to it.
Q. If it does, you don't know about it, right?
A. No.
Q. And you're the case agent, right?
A. Yes.
Q. You've reviewed the order, right?
A. I have -- I have looked at the order, yes.
Q. You're familiar with the order, right?
A. Yes.
Q. All right. And there's nowhere else in the order that you
can point to that talks about what it means to misrepresent
the content of the book, right?
A. I would have to review the whole order.
Q. Well, do you have it in front of you?
A. No, I don't.
MR. KIRSCH: Your Honor, may I approach the witness?
THE COURT: Yes.
BY MR. KIRSCH:
Q. I'm going to hand you Government's Exhibit 5, Page 1
through 30. Take a look at the order and let me know when
you're finished reviewing it.
(Brief pause.)
BY THE WITNESS:
A. I do see another sentence in here. I can keep reviewing
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146
it if you --
BY MR. KIRSCH:
Q. It says the same thing, though: Cannot misrepresent the
content of the book in infomercials, right?
A. Correct, yes.
Q. Okay. Go ahead.
(Brief pause.)
BY MR. KIRSCH:
Q. And specifically what you're looking for is anything that
further defines what that means.
(Brief pause.)
BY THE WITNESS:
A. There's several statements in here discussing how he
cannot misrepresent the book.
BY MR. KIRSCH:
Q. Talking about misrepresenting the content of the book,
right?
A. Correct.
Q. Does it explain what that means?
A. I don't see a definition of that, specifically giving an
explanation of that.
Q. All right.
MR. KIRSCH: Your Honor, may I approach the witness,
please?
THE COURT: Yes.
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147
MR. KIRSCH: Your Honor, I'm going to publish to the
jury Government's Exhibit 19, which has been admitted into
evidence.
BY MR. KIRSCH:
Q. Okay. Agent Carrier, you see -- this is your chart,
correct?
A. Yes.
Q. You created the chart?
A. Yes.
Q. You read -- I'm sorry.
You watched the infomercials and you took the quotes
from the infomercials and put them on the chart, right?
A. Yes.
Q. And your chart contains in the left-hand column what
you've summarized as the representation in the infomercial,
right?
A. These were types of representations made, yes.
Q. All right. And then examples of the representations,
right?
A. Yes.
Q. And citations of the transcript, right?
A. Yes.
Q. But you left off your chart where those words appear in
this book, correct? That's not on the chart?
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A. This is a chart of the infomercials.
Q. Right. And Trudeau is charged with misrepresenting the
content of the book in the infomercial, right?
A. Yes.
Q. All right. And this chart shows the infomercial but not
what's in the book, right?
A. Correct.
Q. All right.
THE COURT: Yes.
BY MR. KIRSCH:
Q. I'm going to hand you what I've marked as Defendant's
Exhibit 2 --
MR. KIRSCH: Your Honor, I move for the admission of
Defendant's Exhibit 2.
MS. PERRY: Judge, if we could be heard about this at
sidebar, perhaps?
THE COURT: Sure. Have a sidebar.
(Proceedings had at sidebar:)
THE COURT: Yes?
MS. PERRY: Judge, I have not had time to go through
the literally hundreds of representations in this chart since
I got it this morning, so I have no objection to it being
provisionally admitted and going to the jury.
It's my understanding that Mr. Kirsch plans to go
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149
through each and every one of these with the agent, at which
time, if they're there, they're there. And if they're not,
then I suppose we would object. But at this point I can't say
I don't object.
THE COURT: Okay. Well, first of all, I take it
Defense Exhibit 2 as contained in your exhibit book is not
accurate?
MR. KIRSCH: Correct your Honor. We removed that
once the Court ruled that the exhibit -- the Natural Cures
evidence was not admissible. So we replaced that with the
chart that I referenced earlier, which is a new Defendant's
Exhibit 2, which contains the text of the book.
And, your Honor, certainly if there are -- if there
are -- I don't know how long I'm going -- I don't know how
much more time I'm going to get through with this. If there's
anything in here that's not actually in the book, well, that's
going to be awfully embarrassing to me and we'll make changes
or remove it.
But my whole point with this exhibit is to show that
it is, in fact, in the book. So it's certainly not to
misrepresent what is in the book.
THE COURT: Well, here's the problem: Once it's in
front of the jury, then we need to erase it if it turns out
that it's incorrect. Why don't we avoid that.
Why don't you go on to some other portion of your
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150
cross-examination. By tomorrow, I take it, you will have been
able to review all the 100 and -- how many?
MS. PERRY: It's 31 pages, many of which have four or
five quotes on them.
THE COURT: -- 31 pages of quotations and see if you
have any objection to the accuracy of the exhibit. And then
if there are objections, we can rule on them. If there are no
objections, you can go ahead and do your cross-examination.
MR. KIRSCH: Okay. Your Honor, can I suggest -- can
I use it as just a demonstrative exhibit now? I won't publish
it to the jury because -- I don't know how long you intend to
go, but it will take some time to go through these things.
And if I could just publish the --
THE COURT: You're going to have all the time you
need to do it, but you can't use it as a demonstrative exhibit
unless you lay a foundation, unless this witness says that
this chart is going to help her explain her testimony to the
jury. I suppose if you establish that foundation, you may be
able to use it as a demonstrative exhibit.
MR. KIRSCH: Well, I guess, your Honor, what I'm
saying -- what I can do, at least if we can use the first
page, because otherwise it's just going to be more
time-consuming. I'm just going to have her read all these
things from the book and then I'm going to basically confirm,
through her testimony, the first page is accurate and show the
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151
jury the first page, which is fine. We can do that.
MS. PERRY: If he wants to confirm it page by page
and then put it up, that's totally fine.
MR. KIRSCH: I will do that. I will do that.
I assume we're not going to go very much longer, so
that's fine, your Honor.
THE COURT: We're going to go until 4:30.
MR. KIRSCH: That's fine.
THE COURT: So the process is, you're going to not
offer it into evidence right now but go through it to verify
that it's accurate and then offer it if it's accurate?
MR. KIRSCH: Right.
THE COURT: And you have no objection to that?
MS. PERRY: That's fine.
MR. KIRSCH: And I will offer the first page and the
second page, and I guess overnight -- tomorrow morning I may
just offer the whole thing in its entirety.
THE COURT: Okay. You have no objection to that?
MS. PERRY: No, that's fine.
BY MR. KIRSCH:
Q. Agent Carrier, we're going to go -- do you have Exhibit 2
in front of you?
A. Yes.
Q. We're going to go through quote by quote of that exhibit
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Carrier - cross
152
that's in the book, okay, but you can refer to that if you
would like. And we're going to start with the first
representation that the protocol is not a diet.
Do you see that --
A. Yes.
Q. -- on your chart?
A. Okay.
Q. Government Exhibit 19, which is on the ELMO, right in
front -- the screen in front of you?
A. Okay.
Q. Do you see your chart there on the screen in front of you?
A. Yes.
Q. Do you see the representation that the protocol is not a
diet?
A. Yes.
Q. And then you have several examples of Mr. Trudeau during
the infomercial saying that the protocol is not a diet,
correct?
A. Yes.
Q. All right. Now, I would like to show you the content of
the book, which has been admitted as Government Exhibit 4.
And I'm going to show you Page 2 in Chapter 1.
And you see I've highlighted some language there in
that first paragraph? Do you see that?
A. Yes.
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153
Q. All right. Will you please read that first highlighted
paragraph?
A. "The weight loss cure is not a diet, not an exercise
program, not a psychological behavior modification program, or
some other system that is supposed to help you lose weight.
The weight loss cure actually addresses and corrects the
physiological cause of obesity, weight gain and inability to
lose weight."
Q. All right. And now back to your Exhibit 19, in the
infomercial he says that the weight loss protocol is not a
diet, correct?
A. Correct.
Q. All right. And that's what the book says, too, right?
A. In that paragraph, yes.
Q. Okay. I'm going to show you Page 36 -- the bottom of
Page 36 and the top of Page 37. And I ask you to read,
starting on the bottom of Page 36, the highlighted language.
A. "These diet programs do not work and actually make you
fatter in the long run. None of them address the true causes
as to why you are overweight. Not one of them resets the
hypothalamus. None of them raise and reset your metabolism.
None of them correct the intense and constant hunger. None of
them correct the uncontrollable food cravings and urges to eat
when you are not hungry. Most importantly, no matter how much
weight you lose doing these programs, none of them get your
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Carrier - cross
154
body to release the secure abnormal trouble area fat deposits.
None of these programs reshape your body."
Q. Now I'm going to go to the very next page, Page 38,
Chapter 2 of the book, and I would like you to begin reading
the highlighted paragraph on the last page of Page 38.
A. "The scariest part of the documentary was the fact that
after seven months of diet and exercise Morgan still had not
lost the 28 pounds. This is why diets don't work. Diets and
diet food only make the problem worse and it is harder than
ever to lose weight in the future."
Q. All right.
MR. KIRSCH: Your Honor, I now move to admit as
Defendant's Exhibit 2 the first page of the chart that I've
prepared.
MS. PERRY: No objection.
THE COURT: It may be admitted.
(Said exhibit was received into evidence.)
MR. KIRSCH: And I ask that it be published to the
jury.
MR. KIRSCH: All right.
BY MR. KIRSCH:
Q. All right, Agent Carrier, do you see the chart -- the
first page of the chart that's been admitted as Defendant's
Exhibit 2?
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Carrier - cross
155
A. Yes.
Q. All right. And do you see at least -- I'll show you the
-- you have it in front of you, correct?
A. Your chart? Yes.
Q. Okay. You see -- I'll show you the whole first page. But
I want to compare it to the chart that you made for the jury.
Do you see I've added a third column there to your
chart?
A. Yes.
Q. So in my chart, Defendant's Exhibit 2, the first page --
the first column has the representation -- or what the
government alleges is a misrepresentation, right?
The protocol is not a diet, do you see that?
A. Correct, yes.
Q. That's the same on both charts, right?
A. Yes.
Q. All right. And then the second column is also the same.
You list examples from the infomercial and I -- on my chart I
call them statements from the infomercial, correct?
A. Yes.
Q. But if you compare the two examples, your examples are
exactly the same as what I list as statements from
infomercials, correct?
You can take a look at it, if you want.
A. Yes, the two center columns.
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Carrier - cross
156
Q. Right.
And now your third column, which is the citations to
the transcript in the infomercial, I deleted that. But I
included on Defendant's Exhibit 2 the text of the book where
those statements in the infomercial can be found. Do you see
that?
A. I see you included sections of the book, yes.
Q. Where those representations can be found, right?
Let me ask you this: What's the first example that
you list from a statement from the infomercial?
A. "It's not a diet, this is not another diet, Don."
Q. All right. Now, read from my example -- the first
sentence from the first example?
A. "The weight loss cure is not a diet."
Q. All right. Sticking with the first representation for a
minute, the protocol is not a diet, will you turn to Page 2 of
Defendant's Exhibit 2? And then I call your attention to the
book, Page 40, which is still in Chapter 3.
And, by the way, Chapter 3 -- Chapters 1, 2 and 3,
which I've quoted to you so far, are not included in the black
binders that the jury has, right?
You didn't include those in the jury -- in the
versions you gave to the jury earlier today?
A. I don't have the binder in front of me. I don't believe
they're in there.
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Carrier - cross
157
MR. KIRSCH: All right. Your Honor, may I approach?
THE COURT: You may.
BY MR. KIRSCH:
Q. I'm going to hand you a copy of the binder that was
provided to the jury during your direct examination. And I
would like you to look and see if the paragraphs that we've
been talking about, 1, 2 and 3, are in the binder that the
government gave to the jury during your direct examination.
A. No, they're not.
Q. Okay.
A. But the whole book is.
Q. Well, right. I think at the last question -- the last
five questions the book was handed out to the jury, right?
A. Yes.
Q. All right. Page 40, the third -- the highlighted
paragraph -- let me zoom in a little bit; it might make it
easier.
Okay. Go ahead. Can you read that paragraph that's
highlighted?
A. "Once fat is stored there, no matter how much diet and
exercise you do, this fat will not be released. This is the
problem with diet and exercise alone. When you do any diet
and exercise program you will lose water, structural fat,
normal fat reserves and muscle mass."
Q. All right.
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158
MR. KIRSCH: Your Honor, I now move to admit Page 2
of Defendant's Exhibit 2.
THE COURT: It may be admitted without objection.
BY MR. KIRSCH:
Q. Do you see Page 2 there of Defendant's Exhibit 2, Agent
Carrier?
A. Yes.
Q. And is that the quotation that you just read? I can show
it to you in the book but --
A. It appears to be, yes.
Q. I'm not trying to trick you.
A. No. It appears to be, yes.
Q. Okay.
All right. Another one -- I'm showing you
Government's Exhibit 19 again, which is the chart that you
prepared. And another area in which you allege that my
client, Mr. Trudeau, represented the content of this book is
in the representation that the protocol is a permanent cure.
Do you see that?
A. Yes.
Q. And then you cite examples that you read to the jury, I
believe, that -- the weight -- Dr. Simeons' weight loss
protocol cured the problem, right?
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Carrier - cross
159
A. Yes.
Q. And it's those statements there on that chart that you
allege misrepresent the content -- or what's in this book
here, The Weight Loss Cure "They" Don't Want You to Know
About, right?
A. Yes.
Q. All right. Now, I'm going to show you some things from
the book.
I'm showing you the front cover of the book. Can you
just read the title of the book to the jury?
A. The Weight Loss Cure "They" Don't Want You to Know About.
Q. All right. Now I'm going to show you the front cover of
the book, the jacket. Do you see the first paragraph there?
I've highlighted it but it's hard to see the highlighting on
the glossy paper.
Do you see that?
A. Yes.
Q. All right. Can you read that first paragraph, please?
A. "An absolute cure for obesity was discovered almost
50 years ago by a British medical doctor. Tens of thousands
of people use this simple, inexpensive, safe medical treatment
and achieved miraculous fast and permanent weight loss.
Stubborn area of fat deposits melted away. Body reshaping of
the hips, thighs, buttocks and waist was so dramatic it
appeared as if patients received liposuction. Amazingly, this
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Carrier - cross
160
medical breakthrough has been debunked, discredited and
suppressed by the American Medical Association, the Food and
Drug Administration, and other medical establishments
throughout the world. Now, for the first time 50 years this
revolutionary breakthrough discovery, which permanently cures
the condition of obesity, is being released to the public."
Q. All right. And I want to show you a paragraph that --
it's a little bit further down the jacket in the second
paragraph. Will you read that highlighted sentence in the
second paragraph, please?
A. "This weight loss cure protocol has been proven to be
virtually 100 percent successful in correcting these
conditions, thus curing the individual of obesity for life."
Q. All right. And down at the very end, can you read that
last sentence?
A. "The good news is this book gives you the cure that can
solve your overweight condition once and for all."
Q. All right. I now would like to show you the back cover of
the book. And do you see this last sentence here?
A. Yes.
Q. All right. Will you read it?
A. "This is the cure for obesity that the weight loss
industry and diet food manufacturers don't want you to know
about."
Q. All right. And right here, will you read this first
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Carrier - cross
161
paragraph and this second paragraph of the back cover of the
book?
A. "This is the miracle medical weight loss discovery and
cure for obesity that will: Eliminate food cravings, reshape
your body, increase your energy, burn fat deposits in all
problem areas, and keep excess weight off forever."
Q. All right. You see -- I know it's a little hard to see on
the screen there, but do you see where I've underlined the
word "cure" and then down at the bottom the word "cure"?
Do you see that?
A. Yes.
Q. All right.
MR. KIRSCH: Your Honor, I now move to admit Page 3
of Defendant's Exhibit 2.
THE COURT: Page 3 of Defense Exhibit 2 will be
admitted without objection.
BY MR. KIRSCH:
Q. All right. Agent Carrier, I want to show you first your
chart, Government's Exhibit 19, which you gave to the jury on
direct examination. Do you see that?
A. Yes.
Q. And do you see where it indicates the protocol is a cure?
Do you see that?
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Carrier - cross
162
A. Yes.
Q. And then it -- the chart contains nothing from the book.
Do you see that?
A. Correct.
Q. All right. And then on my chart, Defendant's Exhibit 2, I
contain the same representation, right, that's on your chart?
A. Yes.
Q. The same examples that are on your chart, right?
A. Yes.
Q. And then I added the text of the book that we just read to
the jury, right?
A. Yes.
Q. All right. I'm going to continue with some more examples
from the book.
I would like to show you the Table of Contents from
the book. Do you see that?
A. Yes.
Q. All right. What's the title of Chapter 3?
A. The Weight Loss Cure Discovered.
Q. Title of Chapter 4?
A. The Cure Suppressed.
Q. Chapter 5?
A. The Cure Revealed.
Q. Chapter 7?
A. Curing Food Cravings, Emotional Eating and Uncontrollable
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Carrier - cross
163
Compulsive Eating.
Q. All right. I think this is Roman numeral number XI. And
do you see the -- do you see it's called The Introduction?
A. Yes.
Q. All right. The second sentence of The Introduction that
I've highlighted, will you read that, please?
A. "You are being exposed to one of the greatest kept secrets
and greatest discoveries in the cause and cure for the
affliction of obesity."
Q. Let's go to Page 1, second paragraph, the highlighted
language. Do you see that?
A. Yes.
Q. Will you please read it?
A. "The cause and cure for obesity was discovered by a top
British medical doctor over 30 years ago."
Q. And you can read the last sentence, too?
A. "He was paid enormous sums of money to keep the cure a
secret."
Q. Page 2, the first paragraph that's highlighted, please?
lose weight."
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Carrier - cross
164
Q. And the next sentence, please, that's highlighted?
A. "Most importantly, you will learn the simple protocol that
you can easily do that will cure the basic underlying cause
that makes us fat."
MR. KIRSCH: Your Honor, I move to admit Page 4 of
THE COURT: Page 4 will be admitted without
objection.
BY MR. KIRSCH:
Q. Agent Carrier, do you see Page 4 there?
A. Yes.
Q. I've added the quotations that you've just read out of the
book, correct?
A. Yes.
Q. And again, your representation is in the middle sentence,
"This is the cure," et cetera, right?
A. Yes.
Q. And then in the text of the book it talks about cure -- do
you see where I'm highlighting the word "cure?"
A. Yes. That's what I read.
Q. Okay.
All right. Let's continue from the book, Page 7,
this third paragraph, and it goes on to Page 8. Can you see
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Carrier - cross
165
that okay on the screen?
A. Yes.
Q. Do you have a copy of the book? Would it be easier if you
had a copy of the book? Do you want one?
A. Your copy is highlighted.
Q. I know but --
A. I can read from the book but --
Q. It's up to you. I'm just trying to make it easier for
you. If you want to read from the screen --
A. I would have to search the book.
Q. Okay. Go ahead. Can you read the highlighted that reads
"This weight loss cure?"
A. "This weight loss cure protocol does, in fact, cure and
correct these problems. When you finish the protocol your
metabolism is reset to the normal level. Your physical hunger
is reset to the normal level. The emotional eating issues and
food cravings are gone forever. This means when you finish
the protocol you will be able to be a normal person in
relation to your eating and weight. Your hunger will be
completely normalized. You will be able to eat any food you
want. Your body will burn the food you eat so that it does
not turn to fat. Your hunger and appetite mechanisms will be
regulated so that you have an intense feeling of fullness with
no psychological food cravings. You will have no desire to
eat when you are not hungry. For some of you this will be a
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new and life-changing experience. Imagine going to a buffet
and eating a normal amount of food and feeling totally full
and satisfied. Imagine not having to deal with willpower or
deprivation."
Q. All right. And then continuing for the first two
sentences on Page 8.
A. "Imagine not being hungry throughout the day. Imagine no
longer being a slave to food or your weight. This cure may be
the answer to your prayers."
Q. All right. Now we're just going to go to Page 11.
And do you see Page 11, in the middle of the page
there, I've highlighted some language?
A. Yes.
Q. All right. Will you please read that?
A. "I joked that I wished I could lose some weight and keep
it off forever. The doctor paused and very seriously and
matter-of-factly stated that there was a cure for obesity that
I could receive while at the clinic. I was about to brush him
off figuring that it was just another diet and exercise
program. I was, however, intrigued when he used the word
'cure'. I asked how it worked. He went on to say that a
British medical doctor in the late 1950s discovered that all
overweight people have a low metabolism, constant and intense
hunger and massive food cravings causing them to eat when they
are not hungry."
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THE COURT: Page 5 of Defendant's Exhibit 2 will be
admitted.
BY MR. KIRSCH:
Q. I'm going to show you Page 5, Agent Carrier. Do you see
that?
A. Yes.
Q. And does that contain the quotes that -- the two quotes
that you just read regarding the allegation that the weight
loss protocol is a cure and whether that is stated in the
book?
A. Those are the two sections I read, yes.
Q. Continue to Page 12. And I would like you to read the
highlighted sentence there, which is the last sentence of that
first paragraph.
A. "You will be cured and you will not gain the weight back."
Q. Now I'm moving on to Chapter 2, and Page 18. Will you
please read the first paragraph that's highlighted?
A. "When you understand the reasons why you are fat and why
every diet and exercise program has failed, you will be free
to experience the weight loss cure protocol and cure yourself
of the bondage of being a slave to food, hunger, cravings,
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deprivation and obesity once and for all."
Q. All right. I now would like to show you the first full
paragraph in the bottom highlighted portion, starting with,
"When your metabolism is abnormally low." Will you please
read that?
A. "When your metabolism is abnormally low your body cannot
burn the food as fuel. When food is not burned for fuel, the
excess must be converted to fat, thus increasing your weight
and making you fatter. This is the first condition which must
be corrected if you want to experience rapid weight loss and,
more importantly, be able to eat what you want in the future
without gaining any weight. The weight loss cure protocol is
the only known method that cures the problem."
Q. All right. So far we've gone through several of these
quotes; I have many more to go to. But do you remember
reading any of those quotations on direct examination?
A. No, I do not.
Q. Let's go to Page 21. Now, you see there Point No. 1
beginning, "It is true." Will you read that?
A. "It is true that everyone is born with different metabolic
rates. Some people are naturally born with super high
metabolisms, other people are born with abnormally low
metabolism. This is a physical condition. Your metabolism is
caused by genetics, will be corrected once and for all through
the weight loss cure protocol."
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169
MS. PERRY: No objection, Judge.
THE COURT: It will be admitted --
BY MR. KIRSCH:
Q. Let me show you --
THE COURT: It will be admitted without objection.
(Said document was received into evidence.)
BY MR. KIRSCH:
Q. Let me show you the chart, Page 6. Do you see Page 6
there?
A. Yes.
Q. All right. On Page 6 I've added the text of the book with
more examples of where the book refers to the weight loss
protocol as a cure, right?
A. I read those, yes.
Q. Four more pages of examples for this one.
Okay. Page 36, the end of the second paragraph
that's highlighted, will you believe that -- will you read
that, please? It starts, "I believe." Will you read it,
please?
A. "I believe that if you follow this protocol your weight
loss issues will be cured and you can live the rest of your
life as a normal, thin, happy person."
Q. And a few pages later, Page 41, starting with, "The bottom
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170
line" and to the end of the page.
A. "The bottom line is that the major reasons why you are
overweight, fat or obese is your metabolism is abnormally low,
your hunger is abnormally intense and constant, you have
uncontrollable food cravings causing you to eat when you are
not hungry, and when you have excess food that has not been
burned off, your hypothalamus stores an abnormally high amount
of the excess in the secure problem area fat reserves which
will never be released no matter how much you diet and
exercise. The weight loss cure protocol will once and for all
correct this condition.
"Who discovered this cure? How was it discovered?
Why has it been suppressed and kept for a secret for so long?
The amazing story will surprise you."
Q. Now Page 47. I've highlighted the top paragraph there,
but for this one alleged misrepresentation you can start with
the sentence that says, "This requires," and then we'll go
back to that first sentence later -- or, I'm sorry, that says,
"These requirements."
A. "These requirements were met during the research. Simeons
then could legitimately speak of curing obesity rather than
just reducing weight. Never before or since has a true cure
for obesity been a legitimate claim."
MR. KIRSCH: Your Honor, I move to admit Defendant's
Exhibit 2, Page 7.
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171
BY MR. KIRSCH:
Q. All right. Do you see that?
A. Yes.
Q. All right. Are those -- my chart there under Text of Book
on Page 7 of Defendant's Exhibit 2, are those the quotations
that you just read from The Weight Loss Cure Book "They" Don't
Want You to Know About?
A. Yes.
Q. Page 55, do you see the highlighted language there
beginning, "Although?"
A. Yes.
Q. Can you please read that?
A. "Although much of Simeons' research was published in
prestigious medical journals, news of his cure spread mostly
by word of mouth. At this time it was an embarrassment for
most people to say they were receiving treatment for obesity.
The news about his cure and spectacular results spread slowly.
Not surprising to Simeons, the amount of professional jealousy
within the medical community also stifled the spreading of the
truth about this medical breakthrough that cured obesity."
Q. Page 60 I have highlighted some language. Will you please
read that?
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A. "There were many groups, organizations and industries that
absolutely did not want a weight loss cure to be accepted.
The drug companies wanted to patent drugs for weight loss.
Food companies wanted fat people, not thin people, so they
could sell more food. The diet food industry was beginning to
blossom and those companies didn't want anything that could
adversely affect their product's market share. Releasing the
cure publicly would result in personal ridicule and could be
personally financially devastating."
Q. Page 67, do you see the beginning of the fourth paragraph,
that first paragraph that I've highlighted?
A. Yes.
Q. Beginning, "Another major reason?"
A. Yes.
Q. Can you read that, please?
A. "Another major reason why any effective permanent weight
loss cure would be suppressed is the fact that every major
drug company has invested hundreds of millions of dollars
trying to patent an expensive drug or surgical procedure that
the FDA will approve for the treatment of obesity."
Q. All right.
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Carrier - cross
173
BY MR. KIRSCH:
Q. I'm showing you there Page 8. Do you see that?
A. Yes.
Q. Do you see those quotes that I just asked you to read from
the book The Weight Loss Cure "They" Don't Want You to Know
About?
A. Yes.
Q. Do those appear to be the same quotes?
A. Yes.
Q. Again, on direct examination, when the government lawyer
was asking you questions, did you read any of those quotes
that I just asked you to read for the jury?
A. No.
Q. We're almost done with this one. I only have two more
pages.
Page 68, do you see the highlighted language there?
A. Yes.
A. "The Simeons' weight loss cure protocol is the only known
cure for the obesity condition. Combined with the knowledge
of what causes the condition, the patient can achieve a
permanent cure to their obesity and overweight condition. The
drug companies, food industry and weight loss industry do not
want you to know the truth about this cure."
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174
Q. And jumping ahead a little bit to Page 98, do you see
there the highlighted language that begins, "Although there
are critics?"
A. Yes.
Q. Could you please read that?
A. "Although there are critics and so-called experts that
continue to debunk and discredit Simeons' weight loss cure
protocol, the hundreds of thousands of patients achieving
these results, combined with the massive amounts of scientific
documentation, double-blind studies, clinical studies and
observations, are proof beyond a doubt that this is, in fact,
the ultimate cure for obesity."
Q. Page 105, do you see the top paragraph there?
A. Yes.
Q. All right. Will you please read that top -- the top
paragraph that I've highlighted on Page 105?
A. "When you successfully complete the 21 days of Phase 3,
you are ready to begin a new life as a normal, thin,
energetic, happy, healthy person who is no longer a slave to
hunger, food cravings and food. Your hypothalamus will be
reset and corrected from its abnormal operating state. Your
metabolism will be high. Your hunger and food cravings will
be low. You will no longer abnormally store fat in the
abnormal secure fat reserves. You will have been cured of the
main causes of obesity. Now, let's make sure that you keep
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Carrier - cross
175
this corrected condition permanently and don't screw up your
hypothalamus again."
Defendant's Exhibit No. 2.
BY MR. KIRSCH:
Q. Do you see Page 9 there?
I'm showing you Page 9 on the ELMO. Do you see that?
A. Yes.
Q. Are those the same as the quotes that I just had you read
from the book?
A. Yes.
Q. All right. Last page. Page 161, will you read the first
paragraph, please, that's highlighted?
A. "I know what you have gone through. I have lived with
this condition most of my life. Like you, I have experienced
the seemingly never-ending compulsion and focus on eating. I,
too, was once a slave to these uncontrollable and internal
mechanisms. It appears that the causes of these conditions
are now known. There is a way out and there is a cure. To go
into great detail about the causes of these conditions would
take hundreds of pages. My intent is to cut to the chase and
give you the bottom line causes and the simple, easy to follow
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176
methods that cure this disorder."
Q. Page 175 -- I show you Page 175. This is the last page of
Chapter 7.
Do you see that Chapter 8 begins on Page 177?
A. Okay.
Q. All right. So, first of all, is Chapter 7 -- is that one
of the chapters that the government contained in its exhibit
binder that it gave to the jury during your direct
examination?
A. Chapter 7?
Q. Yes.
A. No, it isn't.
Q. All right. Can you read the last sentence of Chapter 7?
A. "The causes of your condition are now known and the cure
is in the palm of your hand."
Q. Page 209, the first paragraph. I have highlighted some
language. Would you read that first sentence?
A. "This book covers a large amount of material about the
cause of obesity and the cures for obesity and the reasons for
the coverup, denial and suppression of these true facts."
Q. All right. The next page, 210, will you read the
highlighted portion there that begins, "The protocol also
cures and corrects?"
A. "The protocol also cures and corrects the underlying cause
of food cravings, binges and uncontrollable urges to eat when
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177
a person is not hungry.
"The protocol also gives the multitude of causes that
created and exacerbate this condition. By eliminating the
things that cause obesity, weight gain should never occur in
the future.
"This is why the Simeons' weight loss cure protocol
is being called a cure for obesity by medical doctors around
the world. It corrects the condition and eliminates the
causes so the condition does not return."
Q. All right. And the last example is on Page 212. This is
the last example for this representation. Could you read that
last highlighted paragraph there?
A. "You now know the causes of obesity. You now know the
cure. Continued slavery or freedom, the choice is yours.
Choose wisely."
MR. KIRSCH: And I move to admit Page 10 of
BY MR. KIRSCH:
Q. All right. I'm going to show you now -- do you see that
Page 10, Inspector Carrier?
A. Yes.
Q. All right. Do you see that that includes the quotes that
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Carrier - cross
178
you just read out of the book?
A. Yes.
Q. All right. Now I want to bring you back to your chart,
which is Government's Exhibit 19, which contains the
statements from the infomercial. Do you see that?
A. Yes.
Q. And I want to show you what's been admitted as part of my
chart, Defendant's Exhibit 2. Do you see Page 3 contains the
same alleged misstatement?
Do you see that, "The protocol is a permanent cure,
the protocol is a permanent cure?" Do you see that?
A. Yes.
Q. And then it contains the same statements from infomercials
that yours includes, right?
A. Yes.
Q. All right. And then it contains 1, 2, 3, 4, 5, 6, 7 --
eight pages of examples where in the book Mr. Trudeau
describes Simeons' weight loss program -- or weight loss
protocol as the cure, correct?
A. Yes.
Q. I'm going to go on to the next example. And just so you
know, for some of these I have much fewer examples but I'm
just going to show you where they are in the book.
Now, do you see there your representation that the
protocol does not require exercise?
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A. Yes.
Q. All right. And then do you see some examples from the
infomercial where Trudeau states during the infomercials that
you do not have to do exercise, no exercise, no exercise?
Do you see that?
A. Yes.
Q. Now, I'm going to walk through some examples in the book
where it's talking about exercise and whether exercise is
required or recommended. But before I do that, I just want to
brief -- and I'm going to touch on this -- I know we're
getting ready to break for the day but I'm going to go into
this in some detail tomorrow.
But I want to see -- you talked about some exercise
walking. Do you remember that?
A. Yes.
Q. All right. And like bouncing up and down on a little
trampoline --
A. Yes.
Q. -- in front of a TV for five minutes? Do you remember
that?
A. I do recall a mini trampoline --
Q. Rebounders?
A. Rebounding.
Q. And those exercise -- the exercising on a rebounder or
bouncing up and down for five minutes and taking a walk, those
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180
were described in Phases 1 and Phase 4, right?
A. I would have to review again, but they are in Phases 1 and
4, and also yoga.
Q. They're not in Phases 2 or 3, right?
A. I would have to go back and see if it's recommended in
those two phases.
Q. Well, will you do that tonight and then I'll ask you about
that tomorrow morning?
We can do it right now if you want, but I'm just
asking if you'll look at Phases 2 and 3 tonight --
A. Okay.
Q. I'll ask you tomorrow morning about exercise in Phases 2
and 3.
And Phase 1, as you indicated, is not required,
right?
A. It's recommended.
Q. It's not part of the original Simeons' weight loss
protocol?
A. No, it is not.
Q. All right. And Phase 4 contains suggestions, right?
A. Yes.
Q. Now, let me show you -- I only have two pages of examples
for this one, but I want to show you your representations here
with respect to exercise, you don't have to exercise, no
exercise, no exercise. Do you see that in the middle column
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Carrier - cross
181
of your chart, Government's Exhibit 19?
A. Yes.
Q. I want to call your attention to Page 2 of the book. And
I'm going to call your attention to the first highlighted
paragraph. Could you read that, please?
lose weight."
Q. All right. Page 6, the bottom paragraph here, starting
with, "Most other weight loss methods", will you read that?
A. "With most other weight loss methods time-consuming
exercise is required. Although exercise is always encouraged,
with this protocol no exercise is required. While I did this
cure, I purposely did no exercise at all to make sure these
spectacular and almost miraculous results could be achieved
without exercise. In reviewing the records of thousands of
people that have done the weight loss cure protocol over the
last 30 years, I can report that no exercise is required and
the spectacular results are consistently achieved even without
any exercise."
Q. All right. Now, do you see there in that passage, on
several occasions Trudeau writes that no exercise is required,
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182
right?
A. Yes.
Q. And in your chart, No. 19, he says essentially the same
thing: No exercise is required, right?
A. Yes.
Q. All right. And Phases 1 and 4 were not required, is that
right?
A. Recommended.
Q. They were recommended but they weren't required, right?
A. Correct.
Q. All right. And you're going to check and see if exercise
is required in Phases 2 or 3 tonight and I'm going to ask you
about that tomorrow, right?
A. Correct.
Q. All right. By the way, did you read either of those two
passages to the jury during your direct examination?
A. Can you --
Q. Well, just take a look at the chart, Page 11. Do you have
the chart in front of you?
A. Yes. On Page 2 and Page 6?
Q. Yeah, the first two, Page 2 and Page 6. Do you see that
on your chart you have in front of you?
A. No, I did not.
Q. You did not read those during direct, right?
A. No.
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Q. Page 12, in the first paragraph I've highlighted a
sentence that starts, "Although exercise is encouraged." Will
you read that please?
A. "Although exercise is encouraged, you do not need to
exercise."
Q. All right. Page 12 -- still on Page 12, near the end, do
you see that beginning, "Every patient?"
A. Yes.
Q. Go ahead.
A. "Every patient saw a dramatic flattening of their stomach.
Whenever the patient held on to the fat shrunk -- held on to
fat shrunk the most, the waist, hips, thighs, buttocks were
all completely reshaped. Remember, this was without exercise
of any kind."
Q. All right. Going to Page 15, in the last paragraph, will
you please read that?
A. "Here are my personal results. Before I started the
protocol I weighed 231 pounds with a 42-inch waist. Five
weeks later I weighed 195 pounds with a 34-inch waist. I did
no exercise at all during the protocol. I was slightly hungry
for the first two days, but then I had virtually little or no
hunger at all."
Q. All right.
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184
THE COURT: All right. It may be admitted without
objection.
BY MR. KIRSCH:
Q. All right. I'm going to show you that. Do you see
Page 11 there of Defendant's Exhibit 2 that's now been
admitted in evidence?
Agent Carrier, do you see that?
A. Yes.
Q. All right. And do you see where I've included the column
Text of the Book in the last three -- we're on Page 12 and
Page 15. Do you see that?
A. Yes.
Q. All right. Did you read any of those during your direct
examination?
A. No, I did not.
MR. KIRSCH: Your Honor, I just have two more
examples on this one, if you want me to complete these.
THE COURT: Sure.
MR. KIRSCH: Thank you.
BY MR. KIRSCH:
Q. All right. I'm going to go to Page 39 of the book. And
the second full paragraph that begins, "Those who think," can
you read that, please?
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A. "Those who think exercise is the answer are mistaken.
Exercise in any form is recommended and has benefits.
Exercise will slightly raise metabolism and slightly lower
hunger. Exercise will not, however, release the problem area
fat reserves and reshape your body. If you've ever gone to
the gym and seen some of the aerobics instructors who exercise
three to four hours a day, yet still have all the problem area
fat around the hips, thighs and buttocks, you know this is
true. If exercise was required in order for a person to be
thin, why is it that there are tens of millions of people
around the world who eat everything they want, never exercise,
yet remain lean and thin? Exercise is good and beneficial but
it is not the answer and will not cure the cause of obesity."
Q. Again I'm going to go to Page 53 for my last example on
the alleged misrepresentation that you do not have to
exercise, that it was not contained -- or was not in the
contents of the book.
Page 53, the first sentence there, will you please
read that -- the first sentence that's highlighted?
A. "There was no hunger or feeling of deprivation during the
treatment, no exercise was required."
Q. All right. Now I'm going to show you my chart --
MR. KIRSCH: Oh, your Honor, I move to admit Page 12.
THE COURT: It will be admitted.
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Carrier - cross
186
BY MR. KIRSCH:
Q. All right. I'm going to show you Page 12. Do you see
that Page 12?
A. Yes.
Q. And do you see those two quotations -- do those appear to
be the same quotations, the two quotations that I just had you
read?
A. Yes.
Q. And do you recall whether or not you read those on direct
examination to this jury?
A. I might have read the second quote. I'm not -- I would
have to verify that by looking at it -- at the page.
Q. You might have read this second quote on Page 53?
A. Yes.
Q. But you just can't recall whether you did or whether you
didn't?
A. Not at this time.
Q. All right. Do you --
A. It sounds familiar.
Q. Do you recall whether you read the quote on Page 39?
A. I don't believe I did, no.
Q. Okay. Now I would like to call your attention to Page 76
of the book --
MR. KIRSCH: Your Honor, would you like me to
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continue?
THE COURT: Is this the last one?
MR. KIRSCH: I'm kind of -- I've gone through these
examples. I'm kind of moving into a different area but --
THE COURT: Oh, well let's stop at this point. It's
almost 4:30.
MR. KIRSCH: Okay.
THE COURT: Ladies and gentlemen, we're done for the
day. As you can see, we've gotten quite a bit accomplished,
so we're moving in the right direction.
I remind you that during the evening you are not to
discuss the case with anyone or allow anyone to discuss it
with you. You are not to read, view or listen to any news
reports about the case. And if anyone should attempt to speak
to you about this case, you should report it to us as soon as
possible.
Have a good evening. We'll see you tomorrow at 9:30
sharp.
(Jury exited the courtroom.)
(Witness temporarily excused.)
THE COURT: Just a couple of issues I have.
One, what do you estimate the rest of your
cross-examination will take?
MR. KIRSCH: Your Honor, I suspect -- I've
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cross-examined the witness for about an hour and I've gotten
through 12 pages of what was a 30-page chart, so we're moving
along. I -- but I've got several other areas to cover.
I would say that I should be done by lunchtime, but I
can't -- I don't want to -- I know you're not asking me to
commit, your Honor, but I'm always worried about that. I'm
hopeful to be done by lunchtime but it may go a little bit
into the afternoon.
THE COURT: Okay.
The second is, with respect to exhibits, Counsel was
very generous in allowing you to proceed the way you did
today. Giving opposing counsel a 30-page exhibit at the
commencement of the trial, had she objected I would have
sustained the objection. You wouldn't have an exhibit.
Are there any more of those coming?
Just so the Court is aware, my intention was to do
this -- my intention this morning -- actually, we have a sort
of power-point built on this. My intention to do it was a
totally different way, and then over the lunch break I decided
to do it this way because I believed it would be faster, and
we had copies brought over. But that was the reason.
I intended to do it through the computer, which then
there would have been a physical exhibit, but when the Court
admitted the summary, then I -- or when the Court admitted the
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government's exhibit, I decided to move for the admission of
mine.
So I apologize for that, but there was not -- as you
can see, the quotes are in the book. There was -- I didn't --
this is a very simple line of, I guess, cross-examination. So
I didn't mean to -- I didn't mean to, like, trick them or hold
this back, your Honor.
THE COURT: I just want to make sure there are no
others. That's all.
MR. KIRSCH: There aren't, your Honor.
THE COURT: Okay. Anything else we need to cover?
MR. KRICKBAUM: Judge, I think it might make sense to
talk a little bit more about scheduling.
The government's second witness in our case in chief
is the expert. She's available --
THE COURT: I'm sorry, I couldn't --
MR. KRICKBAUM: The second witness in the
government's case in chief is the expert.
THE COURT: Okay.
MR. KRICKBAUM: I expect that she will be available
all day tomorrow but she's not available on Friday. We
mentioned this at one of our pretrial conferences. She has a
commitment on the other side of the country that she made a
long time ago, so -- I'm sorry, on the other side of the -- on
the West Coast. Please do not quiz me on geography, Judge.
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So she's not going to be here Friday.
Given that, I think the Court has previously said
that you may not hold court on Friday anyway, but we wanted to
clarify that with you, what your plan is with respect to
Friday.
THE COURT: Well, I guess I don't know at this point.
I mean, you folks told me this case would take a week or less
initially, and I indicated to you if it's going to take more
than two weeks, then I'm definitely not going to work on
Fridays. But at this point I don't know. That's one reason I
asked how long you've got on cross-examination.
Your witness list, I assume, remains very short?
MR. KRICKBAUM: Yes.
THE COURT: So if that's the case, we'll probably
work on Friday and hope to finish this in a week or a
week-and-a-half.
MR. KIRSCH: Your Honor, can I ask a question about
that? If we go on Friday -- if we go on -- I guess if we
don't finish the expert and the cross-examination of the
expert -- we have no objection to taking Friday off. I had
thought that that's what we were going to do anyway.
But I don't think that -- if you want -- your Honor,
if you want to sit on Friday, we're here, okay? We'll be here
and we'll get our witnesses lined up and ready to go on
Friday. We had thought we were going to take Friday off.
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But if we conclude the evidence on Friday, I assume
that the Court would do closing arguments at the beginning of
next week anyway. I'm just -- your Honor, I guess -- let me
--
THE COURT: I don't know. We're just guessing and
there's no, really -- we're just spending time with guesswork.
MS. PERRY: Well, Judge --
THE COURT: As far as I'm concerned we're going to
work through Friday unless it appears absolutely for certain
that this case is going to take more than two weeks. It --
MS. PERRY: Judge, I know --
THE COURT: It doesn't seem likely at this point.
Let me finish.
With respect to the availability of the expert
witness, I don't want to have any interruptions in that regard
either.
So what we'll do is, we'll interrupt the
cross-examination of this witness, we'll put on the
government's expert on direct and cross tomorrow to make sure
that's done and out of the way, and then you can resume your
cross-examination of this witness after that.
Okay. Is there anything else we need to address?
MR. KIRSCH: Your Honor, should we be prepared to do
closing arguments on Friday?
THE COURT: I don't know. How many witnesses are you
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going to call?
Will your client testify?
MR. KIRSCH: Your Honor, he won't make that decision
until after our --
THE COURT: Well, then how can you ask me if it's
going to be necessary to make closing arguments on Friday? I
mean --
MR. KIRSCH: No, I'm sorry. I just mean, assuming
the evidence is in on Friday morning or Friday early
afternoon, I'm asking will you then go into closing arguments,
or would we do closing arguments on Tuesday, in any event? I
guess that's all I'm asking.
THE COURT: If it appears that we can get in closing
arguments and jury instructions and leave sufficient time for
the jury to retire and, at the very least, organize themselves
and pick out a foreperson and commence their deliberations,
then the answer is yes.
If in my estimation on Friday it looks like that
won't happen, there won't be enough time for all of that to
occur after the close of evidence, then the answer is we won't
do it on Friday, we'll do it the following week.
MR. KIRSCH: Your Honor, I understand.
I understand the Court has discretion as to how to
control the trial, but I would object to interrupting my
cross-examination for the government to put on another
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witness.
It would be a different situation if the government
was still on direct and they wanted to interrupt their direct
and put on a new witness. But I'm right in the middle of my
cross-examination and we're now going to put on an expert on
totally different subjects, have the cross-examination of my
expert, and then I'm going to have to go back to do the
cross-examination of this agent, and that is going severely
disrupt my cross-examination. And I think it's entirely
unfair to allow the government to proceed in that manner, your
Honor, because it's the unavailability of their witness.
I suggest that the Court order their witness to be
here or they not call their witness. It's not our witness,
it's not our problem, and it's prejudicing the presentation of
our case and our defense. It's giving them a tremendous
advantage. And it's an advantage because --
THE COURT: I'm sorry. What advantage -- define
precisely for me what the tremendous advantage is?
MR. KIRSCH: Your Honor, I'm right in the middle of
my cross-examination.
THE COURT: I know that.
MR. KIRSCH: I'm talking about exercise, and I -- the
jury is following along on the exercise and I'm going to go
into that tomorrow morning. And if I have to stop my
cross-examination for the direct examination of a witness on
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totally different subjects, and then the cross-examination of
that witness, and then to go back into my cross-examination of
the expert, your Honor, I think that --
THE COURT: What will that do?
MR. KIRSCH: Well, your Honor, it will cause -- the
jury won't have any idea what's going on. I mean, I think the
jury will have a hard time following it --
THE COURT: First of all, I disagree with your
conclusion, that it will in any way cause the jury confusion.
Second, you already indicated to this witness that
you're going to stop your examination of the exercise today so
she can go do some research so she can answer your questions
on an exhibit that you didn't have.
MR. KIRSCH: No. I had it, your Honor.
THE COURT: Third, the disruption of your
cross-examination to put on the government's expert is nothing
compared to the disruption that would have occurred if the
government had objected to the exhibit that you gave them way,
way, way too late. Okay?
You are actually in this cross-examination now
because the government has agreed not to object to your
exhibit.
I don't see any great prejudice -- I don't see any
prejudice whatsoever, frankly. And I certainly don't see any
great prejudice or tremendous prejudice by doing that.
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MR. KIRSCH: Your Honor, can I complete the record on
that, please, because --
THE COURT: And last but not least, we are often --
in fact, I can't really recall when was the last time that we
didn't have to alter a schedule for an expert witness in a
trial. Expert witnesses are -- they're always difficult to
corner and to have in court exactly when you need them.
MR. KIRSCH: She's not an expert. She's not an
expert. She's not testifying -- she's not giving any
opinions, your Honor. They can call the case agent to
establish the exact same things that they want to do through
her.
Your Honor, if I can just --
THE COURT: I don't know exactly what she's going to
testify to, but they have indicated that she's being called as
a dietician. They are going to ask her questions regarding
her expertise with respect to caloric intake, the size of
portions and other such things that I wouldn't be able to
testify about and, therefore, is beyond the kin of the normal
person. So I'm taking their word for it.
She's an expert. She's going to be accommodated the
same way I would accommodate your expert or I have
accommodated experts in the past. That's my ruling.
Anything else?
MR. KIRSCH: Your Honor, there are some -- I want to
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complete the record on some of these things.
THE COURT: Well, if you're going to say something
new.
MR. KIRSCH: I am going to say something new.
First of all, if the government had objected to my
Defendant's Exhibit 2, there are other lines of
cross-examination that I would have gone into. So there was
no great favor by them agreeing to proceed that way.
In fact, it took more time --
THE COURT: You indicated that there was at the time,
but go ahead.
MR. KIRSCH: The second thing is, I believe during
the pretrial conferences the government indicated that she was
not testifying as an expert. And, your Honor --
THE COURT: No. They said that part of her testimony
would be as an expert and another part of her testimony would
be as a witness things she had done and seen in grocery stores
and things she had purchased. That was the representation.
Is that correct?
MR. KIRSCH: All right, your Honor --
THE COURT: We now know that that is, in fact, the
representation. Now, do you have something new you want to
say?
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THE COURT: What?
MR. KIRSCH: We do not object to taking Friday off so
we can proceed in an orderly fashion.
The case is going to go into next week whether we
take Friday off or not.
THE COURT: I don't know what Friday has to do with
this.
MR. KIRSCH: Because if we take Friday off, then we
don't need to interrupt my cross-examination of the
government's seminal witness.
I mean, your Honor, they're only calling two
witnesses in a very short trial, and I just -- I think I've
made the record to interrupt my cross-examination --
THE COURT: I know. Nobody said that. I asked you
if there's something new --
MR. KIRSCH: That was new.
THE COURT: Okay.
MR. KIRSCH: We do not object to taking Friday off to
accommodate the government's expert witness.
THE COURT: Okay. I told everyone exactly how this
trial would go and I told them under what circumstances we
would not work on Friday. And that's only if I perceived that
there was a very good likelihood that the case would go for
more than two weeks. I don't perceive that at this point.
And until and unless I do, we are not taking Fridays off.
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Okay. Anything else?
THE COURT: Okay. We're adjourned.
* * * * *
We certify that the foregoing is a correct transcript from the
/s/ Joseph A. Rickhoff November 7, 2013
/s/ Mary M. Hacker November 7, 2013
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Nancy C. LaBella, CSR, RMR, CRR
219 South Dearborn Street, Room 1222
(312) 435-6890
Nancy_LaBella@ilnd.uscourts.gov
199
EASTERN DIVISION
)
Plaintiff, )
)
v. ) No. 10 CR 886
)
) November 7, 2013
VOLUME 3
APPEARANCES:
MS. APRIL M. PERRY
Suite 500
(312) 353-5300
(312) 558-5600
Attorney at Law
17th Floor
(312) 420-9263
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200
Trudeau.
MR. KIRSCH: Good morning, your Honor. Tom Kirsch
and Carolyn Gurland for the defendant.
I just wanted to bring up a couple of things before
we bring the jury out.
The first is, it kind of tickled me when it happened
and I couldn't figure out what it was that was bothering me;
but at one of the sidebars, I think, Mr. Kirsch, you indicated
that my order had determined that Natural Cures evidence was
not admissible. That's my order of November 5th. I think if
you look at it, it doesn't say that. It doesn't say "not
admissible" anywhere. Actually I guess it does pretty much
say that. For purposes of proving your client's
interpretation of the consent order, it's not admissible. But
for other purposes, such as his willfulness, it may be
relevant if you meet certain predicates of establishing the
connection between your client's state of mind and the Natural
Cures evidence.
So I just want that on the record. That is not an
order indicating that Natural Cures information or evidence is
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201
not admissible under any circumstances. It's not what it
says.
The second is with respect to the proposed jury
instructions. It's been quite an unusual criminal case, in
the sense that the acts of the defendant are not really at
issue, which is usually what a criminal case is about, what
did the defendant do. I think you all have stipulated to all
of the actions of the defendant. You stipulated to the entry
of the transcripts and the actual videos of the alleged acts.
And some of the language in the unanimity instruction
and even in the elements instructions may have to be altered
because those instructions and most of the committee comments
about them center on proving acts, things done by the
defendant. And that's not really the issue in this case. You
folks have stipulated to -- if I remember correctly -- you
stipulated to the entry of the transcript and that the
transcript properly identified what was said by each person in
the infomercial. So I'm not comfortable with some of the
language we have there at this point. I'm not sure we've
identified the correct issue for the jury.
Comments?
MR. KRICKBAUM: Judge, we will look at -- we will
focus on both the unanimity instruction and the elements
instruction with that in mind. We'll take another look at
them.
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THE COURT: I think the issue in this case really is
the effect of the defendant's actions, not his actions.
I don't think there's any -- and speak up if you
think this is incorrect -- but I don't think there's any
conflict as to what your client actually said or did, is
there?
MR. KIRSCH: There's not, your Honor. I think the
conflict has to do with the elements as to whether there was a
reasonably specific order, whether what he said misrepresented
the content of the book.
THE COURT: It's more like a patent case really than
a criminal case.
MR. KIRSCH: I didn't charge the case, your Honor.
THE COURT: I wouldn't think you would.
MR. KIRSCH: I used to do that. I don't do that
anymore.
THE COURT: Well, you can't have fun all the time.
And I think we may have to refocus the language of
the instructions specifically to identify what the real issue
is for the jury in this case. And it's not really to
determine what the defendant did because I think the parties
have stipulated to that.
MR. KIRSCH: I think, your Honor, that -- I guess, as
I think about it, I have not really thought about it much
before, but it may be that the Court could give some sort of
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instruction that says the parties agree that the infomercial
is accurate.
THE COURT: That these statements were made during
the infomercial.
MR. KIRSCH: Right. There's no question about that.
And that's not part of our defense. Statements were made
during the infomercial. The question is whether the
infomercial misrepresented the content of the book.
THE COURT: Yes, that's pretty much it, which is
quite different from the general run-of-the-mill criminal case
for which the pattern jury instructions are essentially
targeted.
MR. KIRSCH: I think the criminal law would still
apply, and the jury would still have to meet the elements of
the crime beyond a reasonable doubt. And they did charge a
crime here.
THE COURT: Absolutely.
MR. KIRSCH: They would still have to meet the
unanimity requirements on an alleged misstatement and things
like that.
THE COURT: Absolutely. Just, generally speaking,
the elements instruction tells the jury what they must find
the defendant did. And in this case, that's really a moot
point. It's agreed -- what your client did is agreed. You
all have agreed that he said these things in the infomercials.
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And that's not what the jury has to determine because that's
not really the issue in this case.
So I'll reexamine the instructions. I started to do
that to some extent last night, but I would invite you to do
the same because I think they're going to have to be retooled
to some degree. I had not expected the factual case to come
in essentially by stipulation.
Okay. Other than that, are we ready for the jury?
MR. KRICKBAUM: Judge, I think we are ready for the
jury. There's one other issue. I don't think we have to take
it up now. The parties have discussed and we have a
disagreement about an additional piece of evidence that the
government would offer. We wouldn't offer it until after the
cross of Postal Inspector Carrier is finished, meaning this
afternoon at the earliest. So I think we could address it at
another break if you'd like. We're happy to address it now as
well, but I don't think it's coming for a while today.
THE COURT: When is your expert witness?
MR. KRICKBAUM: She's ready.
THE COURT: She's ready right now?
MR. KRICKBAUM: She's ready to testify right now.
THE COURT: Okay. So the first thing I'll do is
instruct the jury that we're interrupting the cross-
examination of the agent in order to allow this witness to
testify and you're going the call her immediately.
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All right. Anything else?
THE COURT: Okay. Bring the jury in, please.
(Jury in.)
THE COURT: Good morning, ladies and gentlemen.
Welcome back. Can't tell you how happy we are to
have you here.
If you'll recall at the beginning of the case, I gave
you some instructions and I gave you a description of why we
have opening statements. And one of the things I said to you
is that one of the reasons we have opening statements is that
real trials aren't like television. Everything doesn't always
come in in a neat orderly fashion in chronological order.
Well, we have just such an occasion.
Because of the availability of a witness for the
government only for today, I'm going to interrupt the
cross-examination of the government's witness, the agent.
We'll retake that up at a later time. And we're going to call
another witness to the stand who is only available at this
time so that that testimony can come in.
Counsel.
MR. KRICKBAUM: Thank you, your Honor. The
government calls Melissa Dobbins.
THE COURT: Remain standing please and raise your
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Dobbins - direct
206
right hand.
MELISSA DOBBINS, GOVERNMENT'S WITNESS, SWORN
DIRECT EXAMINATION
BY MR. KRICKBAUM:
Q. Good morning.
A. Good morning.
Q. Please introduce yourself to the jury and spell your name
for the court reporter.
A. My name is Melissa Dobbins, M-e-l-i-s-s-a, D-o-b-b-i-n-s.
Q. Ms. Dobbins, what do you do for a living?
A. I'm a registered dietician/nutritionist.
Q. Can you give the jury a general explanation of what it
means to be a dietician and a nutritionist?
A. Sure. A dietician is an expert in food and nutrition that
understands how food works in the body to prevent conditions
such as diabetes, obesity, cancer, and how food helps you be
healthy.
Q. What types of settings do dieticians commonly work in?
A. Really work in a wide variety of settings, but some
examples are hospitals, food service, teaching in
universities, community health programs, wellness programs,
more culinary dieticians are out there. Those are some of the
most common examples.
Q. And you mentioned that you are registered. Who are you
registered with?
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Dobbins - direct
207
A. So dieticians are registered by the Commission on Dietetic
Registration, which is just the governing body that sets the
guidelines for registration.
Q. And what are the requirements to become registered?
A. To become a registered dietician, you need to have a
bachelor's degree in science, which is a four-year degree.
You need to do like an internship, which is usually in a
hospital or community health setting. You need to pass a
national exam. And you need to do continuing education to --
every year to keep your credential up.
Q. In addition to being registered, are you also licensed?
A. Yes. Illinois has licensure, so I am also licensed.
Q. And how many years of professional experience do you have
as a dietician?
A. 20.
Q. I want to talk to you a little bit about your educational
background. What degrees do you hold?
A. So I have a bachelor's in science in food and nutrition
and dietetics and I have a master's of science in nutrition
education.
Q. And where did you earn those degrees?
A. The bachelor's degree was Southern Illinois University and
the master's was University of Missouri.
Q. And can you describe for the jury some of the education
and training you received in the field of nutrition by
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Dobbins - direct
208
obtaining those degrees?
A. So the education, both undergraduate and graduate, you
take a lot of science classes, a lot of chemistry, a lot of
food science, human nutrition, anatomy and physiology,
counseling techniques, how to help -- work with patients and
help them focus on behavior change, a lot of public health
courses.
Q. In addition to your degrees, do you have any professional
certifications?
A. Yes. I'm a certified diabetes educator, which I've been
for 15 years.
Q. Do you also have any certificates in the field of weight
management or obesity?
A. Yeah. I've completed two certificates of weight
management that the Academy of Nutrition and Dietetics offers,
one for adults and one for children and adolescents.
Q. I want to go into a little bit more detail about your
professional experience as a dietician.
After you graduated with your master's degree, what
was your first position?
A. So my first job was in a hospital in south Chicago where I
was an inpatient clinical dietician. So I worked with sick
patients who would be admitted to the hospital. I would
assess their diets at home and look at their diagnosis, like
whether it was diabetes or cancer or heart disease, and
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Dobbins - direct
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recommend a diet for the doctor to prescribe. And then I
would -- if they were healthy enough, I would educate them on
what to eat when they went home.
Q. And how long were you in that position?
A. About two and a half years.
Q. And where did you go next?
A. So my next job was at another hospital in Berwyn, MacNeal
Hospital, where I was an outpatient dietician. So I did kind
of the similar work as an inpatient, only it was more focused
on healthier people who were not admitted to the hospital who
would come to see me in an outpatient setting, focusing on
obesity, diabetes, food allergies, a variety of conditions.
Q. And how long were you in that position?
A. Five years.
Q. Where did you go next?
A. After that I went to work for Jewel-Osco as their grocery
store dietician and was a resource for nutrition for the
employees, for the shoppers, the customers and also the media.
Q. When you say that you were a resource for employees and
customers and the media, can you provide some more details
about what that involved?
A. Yes. So basically what I did, I would do community
wellness events, health fairs. I would do store tours for
shoppers. I would write nutrition articles in brochures or
for their Web site. And then I would do media interviews on
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different -- like monthly health themes, like heart health for
Valentine's Day and back-to-school nutrition, things like
that.
Q. And did you work directly for Jewel-Osco or was there an
intermediary?
A. I actually worked for a food broker who brought the
program to Jewel-Osco.
Q. How long were you at -- working with Jewel-Osco?
A. About two and a half years.
Q. And where did you go after that?
A. After that I went to the dairy council. I worked for the
Midwest Dairy Council as a dietician and an educator. So I
would still do community events for the public, but then I
also had a role educating other health professionals, mostly
dieticians, some pediatricians and physicians; and then I also
did media interviews there as well.
Q. Can you give an example of the type of media interviews
that you did?
A. Yeah. So like it would be like back-to-school nutrition
and it would be like what should you pack in your child's
school lunch that's, you know, healthy for them and snack
ideas and just general tips like that.
Q. And while you were working at the Midwest Dairy Council,
did you also have a role at the National Dairy Council?
A. Yes. I was selected as a National Dairy Council
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spokesperson to basically respond to any national media
coverage about dairy, whether it was positive or negative. It
mostly meant I would just write letters to the editors and
just try to, you know, offer up -- you know, you did a story
on dairy, you know, there's a scientist at this university
that might be able to add some more information to this topic.
Q. And how long did you work for the Midwest Dairy Council?
A. Eight years.
Q. Where did you go next?
A. After that I went to Evanston Hospital in Evanston North
Shore as a diabetes educator and dietician in their high-risk
pregnancy clinic.
Q. Can you explain what was involved in that position?
A. So primarily I would educate the pregnant women who had
high-risk pregnancies, whether it was high blood pressure or
diabetes or maybe they had twins or triplets. And I would
help make sure that their diets were healthy during pregnancy.
And I would also teach them how to inject insulin if they
needed to for diabetes.
Q. How long did you work at Evanston Hospital?
A. About a year and a half.
Q. And where did you go after that?
A. After that I started my own food and nutrition
communications business.
Q. Can you tell us a little bit more about your business?
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A. Yes. So primarily I do public speaking. I do speaking
to, you know, communities but also health professionals. And
I train other dieticians and health professionals on public
speaking or social media or doing media interviews. I still
do media interviews. I'm a spokesperson for the Academy of
Nutrition and Dietetics. It's a volunteer position. My areas
that I focus on for interviews are food safety, diabetes,
family nutrition.
Q. You mentioned a couple of times the Academy of Nutrition
and Dietetics. Can you explain to the jury what is that
organization?
A. So that's the organization for dietician professionals,
kind of like the American Medical Association is for
physicians.
Q. In addition to the current employment that you have just
described, have you also been retained by the government in
this case?
A. Yes.
Q. And are you being paid for your work for the government on
this case?
A. Yes.
Q. How much are you being paid?
A. $200 an hour.
Q. And what's the basis for that fee?
A. That's what my hourly rate is for my business.
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Q. I want to go back to your background for a moment. Are
you -- you mentioned the Academy of Nutrition and Dietetics.
Are you a member of any other professional organizations?
A. So I'm a member of that at the national level but also the
state and the local level. I'm very involved in being on the
boards and in different positions within those organizations,
volunteering. But I'm also a member of the American
Association of Diabetes Educators at the national level but
also the state and local levels too.
Q. Have you published any writing in your field, which is
nutrition?
A. My master's research article was published in the Journal
of Nutrition Education 20 years ago.
Q. And have you also published more recently in the field of
nutrition?
A. I authored and edited two chapters in the dietician's
academy's nutrition care manual, which is a resource for
dieticians. If they have a patient who has diabetes or heart
disease or cancer or whatever, they can look up and see what
are the current guidelines, what are the diet recommendations.
Q. And have you also done writing on the topic of nutrition
for the -- more for the general public?
A. Yes. I have written a lot of articles or blogs, patient
education materials, newsletters.
Q. Have you received any professional awards?
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A. Yes. I was -- I received Outstanding Diabetes Educator of
the Year award in 2011 and Recognized Young Dietician of the
Year in 2004.
Q. How about teaching, have you taught any courses in the
area of nutrition?
A. Yes. I've taught nutrition at four different colleges. I
taught a staff wellness program and a food science course at
University of Missouri. I taught human nutrition, nutrition
science for nursing students at Morton College. I taught a
graduate course on like community nutrition programs at
Benedictine University. And I taught human nutrition to
culinary students at Kendall College culinary school.
Q. Thank you.
MR. KRICKBAUM: Judge, at this point I would tender
Ms. Dobbins as an expert in the field of nutrition.
MS. GURLAND: No objection.
THE COURT: She may testify as an expert in that
field.
MR. KRICKBAUM: Thank you, your Honor.
BY MR. KRICKBAUM:
Q. Ms. Dobbins, I want to turn now to the specifics of this
case, starting with the defendant Kevin Trudeau. Before you
were contacted by the government to be a witness in this case,
were you familiar with Mr. Trudeau?
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A. I didn't recognize his name; but when I saw his picture, I
recognized his face.
Q. Have you formed any opinions about him?
A. No.
Q. Did you know about his book, The Weight Loss Cure "They"
Don't Want You to Know About?
A. No, I did not.
Q. Had you seen any infomercials for that book?
A. No, I have not.
Q. Have you to this day seen any of those infomercials?
A. No.
Q. I want to talk to you about some of the content of that
book. As you were preparing to testify today, did you read
the book?
A. Yes, I did.
Q. And let me hand you --
MR. KRICKBAUM: Judge, may I approach?
THE COURT: You may.
BY MR. KRICKBAUM:
Q. Let me hand you what has been admitted as Government
Exhibit 4.
Is that a copy of the defendant's book that you
reviewed?
A. Yes. Yes, it is.
Q. All right. And I want to be clear about what you're
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testifying to today. Are you offering any opinion today about
whether the diet contained in that book is effective?
A. No.
Q. Are you offering an opinion about whether it's safe?
A. No.
Q. Are you offering an opinion about whether it's
recommended?
A. No.
Q. So let's then talk about the specifics of the book. And I
want to start with Phase 2 and specifically the requirement
that people eat no more than 500 calories a day.
A very basic question: What is a calorie?
A. So a calorie is a way to measure the energy that food
provides.
Q. And as a dietician, is part of your job to determine how
many calories your patients are eating every day?
A. Yes.
Q. All right. So I want to talk to you about the number of
calories that could be found in some everyday meals. And I
will hand you --
MR. KRICKBAUM: If I may approach, your Honor?
BY MR. KRICKBAUM:
Q. -- a few exhibits.
THE COURT: You may approach.
BY MR. KRICKBAUM:
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Q. Let's start by looking at Government Exhibit 6, what's
been marked for identification as Government Exhibit 6.
Do you recognize that?
A. Yes.
Q. What is that?
A. It's a meal from McDonald's.
Q. Is that a photograph of that meal?
A. Yes.
Q. And did you take the photograph?
A. I did.
Q. Is it an accurate photograph of the meal from McDonald's?
A. Yes.
MR. KRICKBAUM: Judge, we move to admit Government
Exhibit 6.
THE COURT: Government Exhibit 6 is admitted without
objection.
MR. KRICKBAUM: And may we publish it, your Honor,
from the government's laptop?
BY MR. KRICKBAUM:
Q. Ms. Dobbins, can you describe, what is the food that's
contained in that photograph?
A. That's a Quarter Pounder with cheese, small fry and a
medium soda.
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Q. And how many calories are contained in that meal?
A. About 750.
Q. And is that with a diet soda?
A. Yes.
Q. What about with regular soda?
A. If it was a regular soda, it would be closer to
900 calories.
Q. And I have to ask: After you took this photograph, did
you eat the meal?
A. Yes, I did.
Q. Can't say I blame you.
Next, please take a look at Government Exhibit 6A.
A. Yes, I do.
Q. What is that?
A. It's a salad from Corner Bakery.
Q. Is that an accurate photo of a salad from Corner Bakery?
A. Yes.
MR. KRICKBAUM: Judge, I move to admit Government
Exhibit 6A and I would request permission to publish it from
the government's laptop.
It may be published.
BY MR. KRICKBAUM:
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Q. Can you tell us what kind of salad is that?
A. That's the entry-size chopped salad.
Q. And what is contained on that salad?
A. So there's lettuce, tomatoes, avocado, chicken, bacon, I
think it's feta cheese or some -- goat cheese, some kind of
cheese, green onions and salad dressing.
Q. The dressing is on the salad?
A. Yes.
Q. And including the dressing, how many calories are in that
salad?
A. About 770.
Q. Now, I want to step back for a moment and ask you a more
general question about calories.
Based on your training and experience as a dietician,
are you aware of whether there are reference points for how
many calories an average person in the United States eats
every day?
A. Yes. There are USDA surveys where they ask people to
report how much they eat. And the food label has a reference
amount of 2,000 calories a day.
Q. And you said USDA. Is that the U.S. Department of
Agriculture?
A. Yes.
Q. And what do you mean by food label?
A. So on a food package where you see the nutrition facts
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panel where it says calories, fat grams, you'll see on there
that it has actually a 2,000 and a 2,500 calorie reference.
So the reason they did that is they wanted people to -- when
they came -- first came out with the labels, they wanted
people to be able to say, okay, if this product has a hundred
calories and five grams of fat, how does that compare to a
full day's intake, average intake.
Q. And those numbers that you mentioned, 2,000 and 2,500, is
it fair to say that those are averages?
A. Yes.
Q. So some people might need more and some people might need
less?
A. Right.
Q. Before you came here today to testify, did you prepare
three meals that would come close to the 2,000 calorie number?
A. Yes, I did.
Q. Please take a look at Government Exhibit 7.
Did you take photographs of those meals after you
prepared them?
A. Yes.
Q. Do you recognize what is in Government Exhibit 7?
A. Yes.
Q. What is it?
A. This is a breakfast meal I prepared.
Q. Is that an accurate photo of the food in that breakfast
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meal?
A. Yes.
Exhibit 7 and publish it from the government's laptop.
BY MR. KRICKBAUM:
Q. Can you describe the food that is contained in this
breakfast meal?
A. Yes. It's some brand flakes, fat-free milk, whole grain
toast with margarine, a banana and plain coffee.
Q. And about how many calories are contained in that
breakfast total?
A. About 350.
Q. Please take a look at Government Exhibit 7A.
A. Yes, I do.
Q. What is this?
A. This is a lunch meal I prepared.
Q. Is that an accurate photo of the food in the lunch meal
that you prepared?
A. Yes.
MR. KRICKBAUM: Judge, move to admit Government
Exhibit 7A and to publish it.
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THE COURT: It may be admitted. It may be published.
BY MR. KRICKBAUM:
Q. Can you please describe the food contained in that lunch?
A. Yes. It's a tuna salad sandwich, carrot sticks, sliced
apple, iced tea and chicken noodle soup.
Q. And about how many calories are contained in that lunch
meal?
A. About 450.
Q. Please take a look at Government Exhibit 7B.
A. Yes, I do.
Q. What is that?
A. It's a snack and a dinner meal that I prepared.
Q. Is that an accurate photo of the snack and dinner?
A. Yes.
MR. KRICKBAUM: Move to admit Government Exhibit 7B,
your Honor, and to publish it.
THE COURT: It may be admitted without objection. It
may be published.
BY MR. KRICKBAUM:
Q. Please describe the food contained in that dinner and
snack.
A. Okay. Off to the left is the snack. It's cheese and
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whole grain crackers with a bottle of water.
The dinner is grilled chicken, whole grain rice,
green beans, a spinach salad with tomatoes and salad dressing
and plain yogurt with sliced strawberries and fat-free milk.
Q. And about how many calories are in this meal?
A. The snack is about 250 and the dinner is about 700.
Q. And the three meals that I showed you, the breakfast,
lunch and dinner and the snack, in total about how many
calories?
A. About 1,750.
Q. All right. Let's then go back to the content of The
Weight Loss Cure book.
Did you prepare meals according to the requirements
that are set forth in Phase 2 of that book?
A. Yes, I did.
Q. Please take a look at Government Exhibit 8.
Did you take photos of those meals after you prepared
them?
A. Yes.
Q. Do you recognize Government Exhibit 8?
A. Yes.
Q. What is that?
A. This is the breakfast that I prepared.
Q. Is that an accurate photo of the breakfast?
A. Yes.
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MR. KRICKBAUM: Judge, I move to admit and to publish
Government Exhibit 8.
THE COURT: It may be admitted without objection. It
may be published.
BY MR. KRICKBAUM:
Q. And please describe what's contained in that breakfast.
A. So this is black coffee and a couple of different types of
tea. You could have either of those and as much as you want.
Q. And the next thing I want to ask you about is the meat
that is allowed for lunch and dinner according to Phase 2. So
according to Phase 2, what quantity of meat or protein is
permitted?
A. So the book recommends or calls for a hundred grams of raw
meat -- meaning not that you eat it raw, but that it should be
weighed raw -- at lunch and a hundred grams at dinner. So I
had to convert that to ounces.
Q. Why did you have to convert it to ounces?
A. Well, in order to get that amount, I had -- when I bought
it at the store, I had them weigh it; but their scale is only
in pounds and ounces. So I had to figure out how many ounces
it was so that I could buy the right amount.
Q. And what store did you get it at?
A. I got these at Whole Foods.
Q. And please take a look at Government Exhibit 8A.
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A. Yes.
Q. What is that?
A. So this is the meat that I bought to -- in order to
prepare the lunch and dinner meals.
Q. Is that an accurate photo of the meat?
A. Yes.
MR. KRICKBAUM: Judge, I move to admit and publish
Government Exhibit 8A.
THE COURT: Admitted without objection.
BY MR. KRICKBAUM:
Q. So am I correct that each of those pieces of meat is
approximately 100 grams?
A. Yes.
Q. And what type of meat is contained in this photo?
A. So the book calls for grass-fed organic beef or organic
chicken.
Q. And I can't help but notice the deck of cards. What is
the purpose of the deck of cards?
A. That's just to show how big the meat is so that you could
get a good idea of -- you know.
Q. Next, please take a look at Government Exhibit 8B.
A. Yes, I do.
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Q. What is that?
A. This is the lunch meal I prepared from the book.
Q. Is that a meal that you prepared according to the
requirements set forth in the book?
A. Yes.
Q. Is that an accurate photo of the meal you prepared?
A. Yes, it is.
MR. KRICKBAUM: Judge, move to admit Government
Exhibit 8B and to publish it.
THE COURT: It will be admitted without objection and
it may published.
BY MR. KRICKBAUM:
Q. Can you describe the food in 8B, please?
A. Yes. So this is 100 grams of organic chicken that I
grilled and a handful of vegetables, and I chose from the
list. I chose cucumbers.
Q. Next, please take a look at Government Exhibit 8C.
A. Yes.
Q. What is that?
A. This is the dinner meal I prepared from the book.
Q. Is that an accurate photo of the dinner?
A. Yes.
MR. KRICKBAUM: I move to admit Government
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Exhibit 8C, your Honor, and to publish it.
THE COURT: Admitted without objection. It may be
published.
BY MR. KRICKBAUM:
Q. Please tell us what is contained in that dinner.
A. So this is the organic grass-fed beef, 100 grams, and a
handful of vegetables; and I chose the spinach.
Q. Did you grab a big handful or a small handful?
A. A big handful.
Q. Next, please look at Government Exhibit 8D.
A. I do.
Q. What is that?
A. So this is the fruit that you're allowed on the diet.
Q. And is that an accurate photo of the fruit?
A. Yes.
MR. KRICKBAUM: I move to admit Government Exhibit 8D
and to publish it.
BY MR. KRICKBAUM:
Q. Can you please describe what fruit that is?
A. So it's an organic apple and an organic grapefruit.
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Q. And Government Exhibit 8E. Please take a look at that.
A. Yes, I do.
Q. What is it?
A. So this is a picture of everything you're allowed in one
day.
Q. Under Phase 2?
A. Yes.
Q. Is that an accurate photo of the food that's permitted in
one day in Phase 2?
A. Yes.
Exhibit 8E and to publish it.
BY MR. KRICKBAUM:
Q. And can you please walk us through again all of the food,
the total amount of food that you're allowed to eat in 8E.
What is depicted in that photo?
A. So from left to right, you have the breakfast, which is
coffee or tea -- plain coffee or tea and as much as you want.
There's specific types listed in the book.
And then you have the lunch, which is the 100 grams
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of organic chicken, a handful of vegetables, which is
cucumbers.
A couple of snacks. You're allowed one grapefruit,
organic, and one organic apple.
And then the dinner is the 100 grams of grass-fed
organic beef and a handful of vegetables, organic, which I
chose spinach.
Q. All right. The next thing I want to talk to you about is
some of the details of Phase 3 of the book, and specifically
some types of foods or types of ingredients that are
prohibited in Phase 3.
So if you could take your copy of the book and look
at page 99.
A. Okay.
Q. Are you there?
A. Yes.
Q. Do you see where it says "No starch"?
A. Yes.
Q. What are some of the example of foods that contain starch?
A. So starches are like bread, pastas, rice, rolls, potatoes,
like starchy vegetables, potatoes, peas, corn, crackers,
cookies, pizza crust, waffles, pancakes, things like that.
Q. And if starch is not permitted, are those types of food
prohibited completely?
A. Right. Yes.
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Q. Another example on page 99, you see it says, "No sugar,
dextrose, sucrose, honey, molasses, high fructose corn syrup,
corn syrup or any sweetener."
Do you see that?
A. Yes.
Q. I think most people know what sugar is. So let's start
with dextrose. What is dextrose?
A. So dextrose is another type of sugar. These are all
different types of sugar. Dextrose is found in honey. Like
30 percent of honey is dextrose. Or like fructose is fruit
sugar.
Q. What are some examples, other than honey, of foods that
contain -- or commonly contain dextrose?
A. You can find dextrose in like processed foods, like
cookies, crackers. I'm trying to think what else. Pretzels;
in ice cream, I think.
Q. What about -- another one on the list, sucrose. What is
sucrose?
A. That's just table sugar, just white table sugar.
Q. How about high fructose corn syrup?
A. So that's a sugar used in a lot of different foods. Most
commonly you hear about it in sodas, soft drinks. But it's
also in bread and ketchup, salad dressings, pizza.
Q. Do you see on page 99 where it says, "No artificial
sweeteners, including aspartame, sucralose, NutraSweet,
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Splenda, saccharin, et cetera"?
A. Yes.
Q. What are those things in general?
A. So those are artificial sweeteners or we call them
non-nutritive sweeteners. They don't provide any calories but
they provide sweetness or they provide negligible calories.
Q. And if you can't eat any of those ingredients, what kinds
of foods can't you eat?
A. Well, of course, there's the packets that you would put
into coffee or tea or something like that. But then diet
sodas are a common place where you'd find artificial
sweeteners. But they're also found in like reduced-sugar
foods, like reduced-sugar oatmeal, lower-sugar granola bars,
products like that.
Q. Also on page 99, do you see it says, "No trans fats,
including hydrogenated or partially hydrogenated oils"?
A. Yes.
Q. Let's start with trans fats. What are those?
A. Well, trans fats are a type of fat that -- so there's a
range of fats where we -- there are very unsaturated, like an
oil, to very saturated, like butter or lard. So trans fats
are in the middle somewhere. They're partially hydrogenated,
but they're a special type of -- it's a chemical bond. That's
why they're called trans fats.
Q. And what are some of examples of foods that contain trans
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fats?
A. Trans fats are found in like chips, cookies, crackers,
pizza, fast food.
Q. And what about hydrogenated and partially hydrogenated
oils?
A. So those are -- they're all very similar. The food
manufacturers are trying to cut back on trans fats, so they
use hydrogenated fats instead or partially hydrogenated fats.
You'll find those like in margarines and -- in some of the
same foods as you would find trans fats in; margarines,
cookies, crackers, like frozen dinners, things like that.
Q. And did I understand you correctly that hydrogenated or
partially hydrogenated oils are often used as a substitute for
trans fats?
A. Right. So as -- you know, we just used to have like in
cookies or something, it would be saturated fat. But then we
started trying to getting rid of that. So they started using
trans fats. And then they found those were bad. So they
started trying to get rid of that. So they used partially
hydrogenated fats.
Q. So am I correct that this prohibition eliminates both
trans fats and the substitutes for trans fats?
A. Yes.
Q. Also on page 99, do you see it says, "No nitrites"?
A. Yes.
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Q. What are nitrites?
A. So nitrites are a naturally occurring substance.
According to the CDC, the Centers for Disease Control, they're
naturally occurring in certain foods, like vegetables, fruits.
And then they're also used in meat products, like processed
meat products, like sausage, cured meats.
Q. Hot dogs?
A. Hot dogs, yeah.
Q. What kind of vegetables are nitrates found in?
A. So certain vegetables that are more likely to have
nitrates, which is kind of -- I think 70 to 80 percent of the
nitrates in our diet come from vegetables. They're in
carrots, cauliflower, broccoli, spinach.
Q. Can you please turn to page 220.
A. Okay.
Q. For Phase 3 under things you must do, it's a little bit
more than halfway down the page, do you see where it says,
"Eat 100 percent organic food"?
A. Yes.
Q. What is organic food?
A. Well, organic food is food that's been produced using an
organic process, which means a lot of things; but basically
processes that are better for the environment. They try to
avoid using most conventional pesticides or chemical
fertilizers, but they do use organic pesticides. But it's the
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process of producing the food that makes it organic.
Q. All right. I want to move on from the list of
restrictions and talk to you about some of the products that
are required for Phase 3 according to the book.
Did you purchase some of those products?
A. Yes, I did.
Q. Where did you get them?
A. I went to the Vitamin Shoppe.
Q. What is that?
A. It's a place that sells a bunch of supplements, like GNC
or something like that.
Q. Am I correct that you don't have any particular expertise
in these products in particular?
A. I do not.
THE COURT: You may.
BY MR. KRICKBAUM:
Q. Ms. Dobbins, I'm going to hand you what has been marked
for identification as Government Exhibit Group 9.
A. Okay.
Q. Please take a minute to take a look at what's contained in
that exhibit.
Do you recognize those items?
A. Yes, I do.
Q. Are those items that you purchased from the Vitamin Shoppe
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that are required by Phase 3 of The Weight Loss Cure protocol?
A. Yes.
Exhibit Group 9.
BY MR. KRICKBAUM:
Q. Can you --
THE COURT: Admitted without objection.
MR. KRICKBAUM: Excuse me, your Honor.
BY MR. KRICKBAUM:
Q. Can you pick them out one by one and tell us what they
are?
A. Sure. This is organic raw unfiltered apple cider vinegar.
This is organic extra virgin coconut oil. This is Yerba Mate
organic tea. This is stevia extract. Chamomile tea; some
probiotics; some digestive enzymes; a coral calcium
supplement; a colon cleanse; and krill oil.
Q. Is that everything that was in the bag?
A. Yes.
Q. Now, I want to turn from Phase 3 to talking to you about
Phase 4 and some additional restrictions that are found in
Phase 4 of the book.
Will you please turn to page 107?
A. 107?
Q. Yes.
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A. Okay.
Q. And do you see listed in No. 2 on page 107 "no brand name
food"?
A. Yes.
Q. And do you see it says, "The rule here is not to eat food
produced by publicly traded corporations"?
A. Yes.
Q. What kind of foods does that include?
A. Well, that's pretty much the majority of foods that you
would find at the grocery store, brand name products.
Q. And what kind of grocery stores are you talking about?
A. Jewel, Dominick's, Whole Foods.
Q. What are some of examples of specific products that that
would include?
A. So specific brand names like Kellogg's brand, Kashi
cereal, Doritos, Tropicana orange juice, Honey Maid graham
crackers, Triscuits, Crystal Light, even the Whole Foods
brand. And then the generic store brands would also be
included.
Q. All right. And please take a look at page 110.
A. Okay.
Q. Do you see No. 43, it says, "No monosodium glutamate"?
A. Yes.
Q. What is monosodium glutamate?
A. It's a flavor enhancer.
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Q. Is it often called MSG?
A. Yes.
Q. And what types of foods is MSG commonly found in?
A. Well, you see it a lot in restaurants, especially fast
food, like chicken products, sausage, salad dressings,
gravies, sauces.
Q. Any snack foods?
A. Yeah. Chips, crackers, frozen snack foods, frozen
dinners.
Q. Okay. I have another restriction I want to talk to you
about. Can you please look at page 227.
A. Yes.
Q. Under the "Things strongly suggested you do not do," about
halfway down that list, do you see it says "no genetically
modified food"?
A. Yes.
Q. What is genetically modified food?
A. Genetically modified foods are foods where they've taken
the gene from one plant and put it in another plant to help it
fight against bugs and pests and weeds and withstand drought
and floods.
Q. Are you aware of whether genetically modified foods are
currently required to be labeled as such?
A. They are not labeled.
Q. And what would be some examples of genetically modified
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foods specifically?
A. So the primary genetically modified crops are corn,
canola, soy bean. So it's mostly in processed foods, not like
produce, but processed foods. It's really widely spread in
packaged foods.
Q. I want to talk to you about another restriction in Phase
4. Will you please turn to page 224.
A. Okay.
Q. Maybe three-fourths of the way down, under "Things you
must do," do you see where it says, "Eat only 100 percent
organic raw dairy products"?
A. Yes, I do.
Q. What does it mean for a dairy product to be raw?
A. Raw means it's not pasteurized.
Q. And where would a product such as raw milk be available?
A. Well, there's a lot of restrictions. You can't transport
it over state lines, so that affects how it's sold in stores.
But the laws vary by state. So in Illinois and all the
surrounding states, you cannot buy it at the grocery store.
Q. All right. And the last topic that I want to talk to you
about is some of the products that are either required or
strongly recommended in Phase 4.
And, again, is it true that you don't have any
particular expertise in these products?
A. That's correct, I do not.
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Q. Could you take a moment and collect the products from
Phase 3 and put them back in the bag and then we can talk
about Phase 4.
In fact, why don't I get -- I'll wait a moment.
For these products in Phase 4, did you purchase some
of the products?
A. I did.
Q. Or some of the products that are required, I should say?
A. Yes.
Q. And all of the products that we're going to talk about are
ones you purchased, correct?
A. Yes.
Q. Where did you get them?
A. At the Vitamin Shoppe. One of them I ordered online.
THE COURT: Yes.
BY MR. KRICKBAUM:
Q. I'm going to hand you what's been marked for
identification as Government Exhibit Group 10.
And I will take Group 9 back from you.
Take a moment to look at that.
(Brief pause.)
BY MR. KRICKBAUM:
Q. Do you recognize that?
A. Yes.
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Q. What is it?
A. These are the products I bought at the Vitamin Shoppe and
the product I ordered online.
Q. And are those products that are either required or
strongly suggested in Phase 4?
A. Yes.
MR. KRICKBAUM: I move to admit Government
Exhibit 10, your Honor.
BY MR. KRICKBAUM:
Q. So let's just take those one at a time as we did with the
previous group.
A. Okay. This is what I ordered online. It's called Q-Link,
clear electronic stress.
Q. And am I correct that that product is strongly suggested
in Phase 4?
A. Yes.
Q. Please continue.
A. This is the liver cleanse. This is the heavy metal
cleanse. This is the parasite cleanse. This is the whole
body cleanse.
Q. And is that an item that is strongly suggested?
A. The whole body?
Q. Yes.
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A. Yes.
There's green -- organic green tea; a whole food
supplement; a vitamin E supplement; acetyl-L-carnitine
supplement; and a candida cleanse.
Q. And of the rest of those, is the green tea strongly
suggested?
A. Yes.
Q. And are the rest of them required according to Phase 4?
A. Yes.
MR. KRICKBAUM: One moment, your Honor.
(Brief pause.)
MR. KRICKBAUM: No further questions, Judge.
THE COURT: Cross-examine.
MS. GURLAND: Yes, your Honor.
CROSS-EXAMINATION
BY MS. GURLAND:
Q. Good morning, Ms. Dobbins.
A. Good morning.
Q. I'm Carolyn Gurland. I'm one of the attorneys that
represents Kevin Trudeau.
So I'm going to start by asking you, did you -- when
you say you read the book, did you read the entirety of the
book or did you just read certain sections?
A. I read the whole book.
Q. And did you do the protocol that was outlined in the book,
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the Phases 1 through 4? Did you actually -- did you actually
do it?
A. No, I did not.
Q. And have you worked with people who have done the protocol
in your work as a dietician?
A. No, I have not.
Q. Have you spoken to any doctors who have administered the
protocol?
A. I have not.
Q. Have you ever read any articles about the protocol?
A. No.
Q. So you're not here to provide any information about
whether or not the protocol works; is that right?
A. Correct.
Q. Okay. And you're not here to express any opinions about
it; is that right?
A. Correct.
Q. So I want to start with your current employment with -- is
it called Sound Bites?
A. Yes.
Q. And you talked about it a little bit on direct
examination, but could you just explain to me -- I think that
I saw -- there is -- do you have a Web site connected with --
A. Yep.
Q. What is the Web site called?
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A. SoundBitesRD.com.
Q. And what kind of services does the Web site suggest that
can be provided through your company?
A. So there's a couple different services; speaking to the
public or speaking to health professionals; media training and
communications training for health professionals; working on
communications projects with companies. Oh, and shopping,
grocery store tours.
Q. And the Web site, I believe, says -- and you tell me if
it's accurate because not everything on Web sites are always
accurate -- but I believe I saw in your Web site that you've
been a media spokesman for the food industry --
A. That's right.
Q. -- is that right?
A. Uh-huh.
Q. And the Web site also says you've been a media spokesman
for the grocery industry?
A. That's right.
Q. Now, were those paid -- were those paid engagements?
A. Right. So that's when I was the Jewel-Osco dietician and
when I worked for the dairy council.
Q. And when you were working for the dairy council, were you
also -- you were paid by the dairy council to do the work that
you did for them; is that right?
A. Correct.
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Q. And the dairy council is -- they're selling milk and
cheese and other dairy products to the public; is that right?
A. Right. I worked for the dairy farmers who produced the
dairy products. It's a check-off program.
Q. And in your resume when you're describing the Sound Bites,
Incorporated, the -- and that's your -- that's where you are
right now, right? That's --
A. That's my own business, yes.
Q. And when you were describing that, I think what your
resume says -- and I can show it to you if you want -- that it
provides real solutions for real people so they can enjoy
their food with health in mind?
A. Yes.
Q. Is that what your resume says?
A. Yes.
Q. And when you're talking about solutions, are you trying to
empower people with things that they can do like as a
lifestyle; is that fair to say?
A. Yes.
Q. So you want to give them things that are going to work,
you know, now and three weeks from now and now and five months
from now; is that right?
A. For their life, uh-huh.
Q. And do some of your real -- so is it more about when
you're -- in your business are you more suggesting a
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particular diet or are you more suggesting a different
lifestyle?
A. I'm not doing any individual counseling if that's what
you're asking.
Q. But in terms of what suggestions you're putting out there
in the media or whatever, is it more a diet or is it more
lifestyle focused?
A. It's more like specific -- not specific. It's like food
recommendations. I wouldn't call it a diet and I wouldn't say
lifestyle because that could be a lot of different things. So
I think it's more specific to say, you know, food
recommendations.
Q. Okay. And are they general recommendations that you hope
people can use for many years; is that right?
A. Yeah.
Q. Okay. And are some of those recommend- -- do some of the
recommendations that people can use for years, do they include
eating fruits and vegetables?
A. Yes.
Q. And do they include drinking water?
A. Yes.
Q. Do they include eating lean protein?
A. Yes.
Q. Do they include walking?
A. I don't really -- I'm not an exercise specialist. I mean,
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I do encourage people to be active, but I don't -- you know,
it depends on the person. So I don't --
Q. Right. Because some people have particular health
considerations that would prevent them from walking, for
example?
A. Right.
Q. Is one of the things that you encourage people to do in
terms of, you know, tools for the long term to limit their
intake of sugary foods?
A. Yeah, I guess that would be safe to say.
Q. Would it -- do you recommend at all as tools for a healthy
lifestyle that people should try to eat organic food when they
can?
A. I do not recommend organic or nonorganic. I let people
make their own decision.
Q. Do you recommend against organic food?
A. No.
Q. And are these -- are these solutions that are -- are
these -- I guess you had called them tools. Are these things
that you think that generally people should be able to do?
Water, vegetables and lean protein, do you think that those
are things that anybody can do?
A. Yes.
Q. So I want to start with some of the photos. And I'm told
that I might actually be able to have them up on the screen.
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I am going to hope for the best then.
I want to start out with the government -- I think
the second one, not the McDonald's, but 6A.
MS. GURLAND: Could I have --
THE COURT: Are you attempting to use the system?
MS. GURLAND: I would like to, yes. That is my hope.
THE COURT: Where is the source?
MS. GURLAND: Oh, could we have the source be
switched to the defense, if it's not there now?
THE COURT: Okay.
MS. GURLAND: Could I have 6A.
BY MS. GURLAND:
Q. So I'm perhaps putting it out of my mind, but can you tell
me how many calories you said were in this salad?
A. Yes. 770.
Q. Now, are those calories coming from the lettuce? I'm
assuming no, right?
A. No.
Q. Are they coming from the tomatoes?
A. A few.
Q. Where are most of the 750 calories in this salad coming
from?
A. 770 calories. So the avocado, the cheese, the chicken,
the bacon, the salad dressing, a little bit from the
vegetables but a minor amount.
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Q. And is 770 calories -- is this an RDA recommended number
of calories for lunch or do you know?
A. There's no specific recommendation for specific meals.
Q. I see. Okay.
And if one were to, say, have the salad dressing on
the side, that would change the number of calories in this?
A. Yes, it would.
Q. If one were to hold the bacon, that would also change --
A. Yes, it would.
Q. Could we look at Government 7.
This is a copy of the breakfast that you put
together?
A. Yes.
Q. And when you used -- is -- what is on the bread? Is it
butter or margarine?
A. That's margarine.
Q. Do you know if the current -- what is the current thinking
about whether or not margarine or butter is better for people
to eat, do you know?
A. It's really about the amount you use. It's not really --
technically margarine is less saturated than butter. I
typically recommend light margarine to my clients because it's
fewer calories and kind of the same taste.
Q. Have there been articles that have been published recently
that said that it was wrong, that margarine wasn't as good for
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you as people thought and that really butter is better?
A. Oh, yeah. There's all kinds of controversy out there.
But the fact of the matter is margarine is less saturated.
It's a fat. It's high in calories. So you want to limit the
amount you use no matter what you choose.
Q. But some experts -- it's fair to say some experts think
that butter is better and some think that margarine is better;
is that right?
A. With any topic you're not going to find black and white
one way or the other. You're going to find people on both
sides of the fence.
Q. Right. And it's kind of like -- you were talking about
the same issue with trans fats. Is that sort of the same
issue you're talking about?
A. Actually with trans fats, it's pretty clear that it's not
a good thing and we want to try to get them out of our food
supply.
Q. Okay. And but there was a time that people didn't think
like that?
A. We didn't know, yeah.
Q. And so now people are thinking that what's better than
trans fats is hydrogenated or partially --
A. No.
Q. What's better now?
A. Well, the best is like monounsaturated fats, like olive
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oil, but you're not going to put that on your toast. And
you're not -- manufacturers don't have an option right now to
make that Oreo -- when you take the trans fats out, what are
you going to put back in it to make it still taste like an
Oreo. You just can't get that from oils. So they have to go
to the lab and try to come up with something that's going to
make it still taste like we want to but is not going to be bad
for us.
Q. Right. But the thinking -- it's fair to say the thinking
has changed over the years on the topic of trans fats, for
example?
A. Absolutely.
Q. And that thinking has changed on gluten; isn't that right?
Over the course of the last ten years, there's more written
about gluten because of allergies; are you familiar with that?
A. I'm familiar with gluten.
Q. And would you say it's fair to say the thinking has
changed over the last ten years about gluten?
A. I would say that -- yeah. I mean, with nutrition in
general, as more research comes out, we understand the topic
better.
Q. Things are evolving; is that fair to say?
A. Things are evolving, absolutely.
Q. Okay. Do you see 7A?
A. Yes.
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Q. And is this the lunch you put together?
A. Yes.
Q. And you have -- is the -- next to the iced tea, is that
soup?
A. Chicken noodle soup.
Q. Okay. And it's got noodles in the soup also?
A. Yes.
Q. And the -- it's not -- is there mayonnaise in the
sandwich?
A. It's light mayonnaise.
Q. Okay. And about how much?
A. I don't recall. I'm guessing a couple of tablespoons, a
few tablespoons.
Q. Is it possible, if you -- now, is this -- is the menu
plan -- talking about all three. And I'll get to dinner in a
second. But is the menu plan that you put together, is that
something that people would lose weight if they consumed?
A. It depends on the person. The menu plan actually came
from a sample menu that physicians give out to people with
diabetes. This came from a diabetes meal plan that I took the
specific meals and brought them to life from the paper.
Q. Okay. So it's -- this is more focused on keeping your
blood sugar even than losing weight; is that fair to say?
A. Well, as to your question about weight loss, if somebody
required -- if they were eating more than 1,750 calories a day
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and they ate this, they would lose weight. If they were
eating less than this and they ate this, they would gain
weight.
Q. Okay. So it's possible that the things you're showing, a
person could even gain weight on depending on who they are and
what their diets are like?
A. If it's -- yeah, if it's not somebody who needs that many
calories.
Q. And when does -- does that have to do with how big the
person is or how much they eat?
A. So as a dietician when I assess somebody's calories, it's
a formula that takes into consideration their basal energy
expenditure, their height, their weight, their age and their
activity level.
Q. Okay. Thank you.
Oh, and -- sorry, before we leave this. Do you --
with the iced tea, I see that there's a lemon. Did you --
when you were including this, did you put sugar in the iced
tea?
A. No.
Q. Did you put saccharine in the iced tea?
A. No.
Q. Aspartame, did you put any of that in?
A. No.
Q. Splenda?
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A. No.
Q. Could we see 7B.
And this is dinner; is that right?
A. It's a snack and dinner.
Q. Oh, so the two pieces of cheese and the crackers, that's
the -- is that the snack portion?
A. And the water, uh-huh.
Q. And the water, right.
And then the rest is what a person would eat for
dinner?
A. Correct.
Q. Do you recall how much -- how much chicken is that that
you have recommended?
A. It's probably about four ounces.
Q. Okay. And where -- you got that from that diabetes menu
plan, the four ounces?
A. Right.
MS. GURLAND: And could I have 8A on the screen.
BY MS. GURLAND:
Q. Now, 8A, is the -- this is the meat that you purchased
that was organic, organic meat; is that right?
A. Correct.
Q. And where did you find organic meat when you went to get
it?
A. I had to go to a couple of stores. I found it at Whole
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Foods.
Q. And is there a Whole Foods locally in the town -- did you
have to travel to a different town or could you --
A. I did.
Q. And which town did you find a Whole Foods?
A. I think it's Glenview.
Q. Okay. And these are -- this is a photograph of the actual
meat that you bought at Whole Foods; is that right?
A. Yes.
Q. And how much -- do you know how much -- you mentioned that
it was a hundred grams. Do you know how much in ounces that
meat is?
A. Yes. So as I mentioned I had to do a calculation. So
there's 28 grams in an ounce. So it's about three ounces of
meat.
Q. And I know there was no -- there was a promise that there
would be no math, but would it surprise you if -- if in a
calculation of a hundred grams on the Internet as a
mathematical matter, it says a hundred grams was
3.5274 ounces? Does that sound about right?
A. That sounds about right, yeah.
Q. Okay. So the meat that we're looking at on the screen
that you bought that was -- this is from the protocol; is that
right? From the protocol in this book?
A. Yes.
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Q. Okay. And that's about 3.5 -- a little over 3.5 ounces;
is that right?
A. Correct.
MS. GURLAND: And could I see on the screen -- can
you -- is it possible to do it together on the same screen to
show 8A and also the dinner photo that we just looked at,
which is 7B.
BY MS. GURLAND:
Q. So if you look at 7B, and that's the food that -- that's
the dinner that you prepared I think based on the diabetes
menu that you discussed and you compared the -- how the meat
looks. So yours is about four ounces; is that right?
A. Four ounces cooked.
Q. And the meat on the left side that comes from the protocol
is about 3.5 ounces?
A. 3.5 ounces raw.
Q. So if you look at them together, there's no -- I mean, if
any -- if it looks vastly different, but that's the math?
A. Yeah. Meat shrinks up a little bit when it cooks. So if
you start off with about four ounces of raw, you're going to
get about three ounces cooked.
Q. Did you do four ounces raw or did you do four ounces
cooked for the diabetes menu that you showed?
A. Four ounces cooked.
Q. Four ounces cooked. I see. Okay.
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Now, I'd like to talk to you about the -- I think
there's been some suggestions about what's required and not
required in the protocol that is in this book. So I'm going
to direct your attention to that topic and actually have -- if
it would help you, I have a copy of the book. Do you have one
up there?
A. I do.
Q. You do. Okay. Great.
So I want to start with the receipts that you made at
the -- the receipts from the Vitamin Shoppe. Okay. Now, was
there --
MR. KIRSCH: Your Honor, can I have one minute.
(Brief pause.)
BY MS. GURLAND:
Q. So I think you're -- what you -- what's admitted into
evidence is a group of products from the Vitamin Shoppe. Were
there -- there are two different groups of products; is that
right?
A. Yes.
Q. And was there -- was it that you went on two different
occasions to the Vitamin Shoppe?
A. No. I went once.
Q. And you just put it in separate -- did you check out
separately or how did that work?
A. No. I sorted them based on what I thought the book said I
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had to do and what was strongly encouraged.
Q. Okay. And where -- where in the book did you get the
information -- well, let me start with this. Sorry.
Where did you get the information about what products
that you were going to decide to purchase?
A. In the book.
Q. Did the government tell you which products that you should
get from the Vitamin Shoppe or did you make the decision
yourself on your own?
A. I chose the products from what was listed in the book.
MS. GURLAND: May I approach the witness, your Honor?
THE COURT: Sure.
BY MS. GURLAND:
Q. I'm showing you an e-mail to you from Marc Krickbaum from
October 24th, 2013.
Do you see that?
A. Yes.
Q. And what -- what is -- what is included in Mr. Krickbaum's
e-mail to you?
A. A list of products that I chose from the book.
Q. I'm confused. It's a list of products that you gave him
or because it -- or is it an e-mail from him to you -- who
wrote down the products according to the e-mail?
A. Well, we had had a conversation prior to the e-mail where
we -- I pulled out all the products that the book suggested
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and we talked about should I buy them or not. So then he
e-mailed me which ones I should buy from the list that I
pulled.
Q. Okay. Thank you.
So I'd like to go through a number of these items
with you in order, and these are the ones that are coming from
the Vitamin Shoppe, just to orient you. And I think you made
those purchases around October 28th of 2013. Does that sound
right?
A. That sounds right.
Q. I guess before I start that I'd like to have on the
screen, I think it's Government 4, page 76 of the book.
And if you could turn with me, Ms. Dobbins, to
page 76 of the book.
Are you with me?
A. Yes.
Q. So on page 76 of the book, can you -- this is the Weight
Loss Cure protocol. And it says Phase 1. Do you see where I
am?
A. Yes.
Q. Okay. Can you read the first sentence under that,
starting with "although"?
A. Read it out loud?
Q. Yes, please.
A. "Although this phase is not required, based on today's
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conditions, it is highly recommended."
Q. Please continue to the next sentence.
A. "This phase consists of a series of dos and don'ts."
Q. And the next sentence.
A. "It may be difficult for most people to do all the steps
in this phase with strict adherence."
A. "Do as many as you can for the 30 days prior to starting
Phase 2."
Q. And then do you see where -- I mean, you can read the next
sentence, but do you see where it says, "If you skip this
phase or do it halfheartedly," could you read that? What
would happen if you skip the phase and do it halfheartedly
according to this book?
A. "If you skip this phase or do it halfheartedly, you will
still achieve spectacular results in Phase 2."
Q. Can you read the next sentence?
A. "However, this phase will accelerate the fat and weight
loss in Phase 2 and make the whole protocol easier to
complete."
Q. Thank you.
Now, the options that we talked about that you bought
at the vitamin store included the -- and that you brought this
group of products -- included the candida cleanse, colon
cleanse, liver cleanse. And I want to go through those in a
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minute. But before I do that, I'd like to talk about some of
the things that either you or in consultation with the
government decided sort of -- you know, that you didn't
illustrate out of Phase 1.
What's number -- what's No. 1 on page 76?
A. "Water."
Q. What's No. 2?
A. "Walk."
Q. What's No. 5?
A. "Apples."
Q. What's No. 6?
A. "Grapefruit."
Q. What's No. 17?
A. "Eat breakfast."
Q. What's No. 18?
A. "Eat six times per day."
Q. What's No. 19?
A. "Eat dinner before 6:00 p.m."
Q. What's No. 24?
A. "Eat protein before bed."
Q. 20 -- I'm sorry. 24?
A. Oh, I'm sorry. "Eat salad with lunch and dinner."
Q. How about No. 39?
A. "Get sun."
Q. And No. 40?
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A. "Get some sleep."
Q. Okay. So those were things that came out of the list of
options in Phase 1 also; is that right?
A. That's correct.
Q. Okay. Now, I want to talk about the items in Phase 1 that
you and the government were -- were illustrating.
MR. KRICKBAUM: Objection, Judge. We didn't discuss
Phase 1.
THE COURT: So you want to reask the question then?
BY MS. GURLAND:
Q. The products that -- the products that were introduced
into evidence in the case, I guess those are the products that
I want -- that you bought at the Vitamin Shoppe, the Vitamin
Shoppe products, I want to talk a little bit about those.
So before I do, I just have one more place from the
book. And this is on page 92 and it is still in the
section -- the end of the list of items in Phase 1. Can you
read the top of page 92 out loud starting with "however"?
A. "However, you live a hectic busy lifestyle, therefore, you
may only be able to do some of the things in this phase."
Q. Thank you.
So was whole food men's -- a whole food men's
supplement one of the things that you purchased at the Vitamin
Shoppe?
A. Yes.
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Q. And do you recall what the full name was of the product?
Whole food --
A. I know in the book it just called for a whole food
supplement. But I did not know exactly what that was so --
Q. Well, let's talk about that. When you say that it was
called for in the book, can you -- can you turn to the page of
the book that -- where you say it's called for?
A. Yes. I will try to find it.
Q. And I might suggest that it might -- you might see it on
page 79, although I'm not sure that's what you are referring
to.
A. No. On page 100, towards the bottom third, "Take a whole
food supplement daily." That's in Phase 3.
Q. Phase 3 on page 100? Oh, okay.
But if you go back to page 99, the page before that,
do you see that that's where --
A. Yes.
Q. -- the caption of that same list, on page 99?
So you're reading from page 100; is that right?
A. Yes.
Q. "Take a whole food supplement daily." So I just wanted to
go to the beginning. On the bottom of page 99, do you see the
caption for that list?
A. Oh, the title or the --
Q. Right. So what's the -- could you read to the jury
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starting with "additionally" the caption of the list that
lists the whole food supplement?
A. "Additionally, doing as many of the following activities
is highly suggested and recommended."
Q. So the book is saying it's recommended; is that right?
A. Uh-huh.
Q. Not that it's mandatory, correct?
A. Right.
Q. So then this whole food supplement is not required by this
protocol; it's suggested; is that correct?
A. Correct.
Q. Okay. Do you -- when you're counseling people about tools
they can use for healthy lifestyle or healthy eating, do you
ever recommend that people take a multivitamin or do you not
recommend it?
A. I tell them they should discuss with their doctor whether
they should take a supplement or not.
Q. And is that because -- for -- it might be appropriate for
some and not appropriate for others; is that right?
A. Correct.
Q. Reasonable minds do differ; is that right?
A. I'm not sure what you mean.
Q. Well, for some people, it might be appropriate and for
others, it might not be; is that right?
A. Right.
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Q. I'm going to go to stevia extract. Is that one of the
items that was in the group from the Vitamin Shoppe?
A. Yes.
Q. And I see it on page 84 of the book, but if you want to
tell me where you -- where you took it from?
(Brief pause.)
BY THE WITNESS:
A. I'm not sure.
BY MS. GURLAND:
Q. Okay. Well, if I could draw your attention to No. 37 on
page 84 of the book, where it says, "If you need to use a
sweetener, choose stevia as your first option."
Do you see where it says that in the book?
A. I'm sorry. What number?
Q. No. 37.
A. Oh. Yes.
Q. And it's on page 84.
A. Yes.
Q. Do you see where it says, "If you need to use a sweetener,
choose stevia as your first option"?
A. Yes.
Q. So stevia is what -- I mean, it's an optional sweetener
according to 37; is that right?
A. Correct.
Q. And the list that -- itself that it's being drawn from is
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the Phase 1 list; is that accurate?
A. This No. 37?
Q. Yes. Yes. It comes out of the Phase 1 list?
A. Yes.
Q. And the Phase 1 list is the list that I had you read a few
moments ago from page 76, that's it's not required; is that
right?
A. Correct.
Q. I'm going to talk about apple cider vinegar for a moment.
And, incidentally, did you notice when you were reading the
book that there were some items that appeared in several
different places in the book?
A. Yes, I did.
Q. Okay. And do you recall whether or not apple cider
vinegar was one of the items that appeared in several
different places in the book?
A. I don't recall.
Q. Let's go through -- I think I can help direct to certain
places. First, if we can go to page 78. And if you look at
the very first option on 78, "Raw organic apple cider
vinegar." Do you see that?
A. Yes.
Q. So this comes from the Phase 1 list; is that right?
A. Correct.
Q. And that's the Phase 1 list that's optional, right?
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A. Correct.
Q. Now, if you turn to page 94.
Page 94 -- actually to see what part of the protocol
this is, I think you'd have to go back to 93 -- or actually
the bottom of 92. Do you see where it says "Phase 2"?
A. Yes.
Q. Okay. So looking within Phase 2, if you go to -- over to
page 94, do you see the second to last bullet point that says,
"You may season any food with the juice of half an organic
lemon, white or black pepper, organic raw apple cider
vinegar." Do you see that?
A. Yes.
Q. And, incidentally, when you did the -- when you prepared
the foods from the protocol, when you pre- -- you know, when
you did the chicken and the beef and the vegetables, did you
use any seasoning? Did you use salt and pepper or the apple
cider vinegar?
A. I did not.
Q. Did you use anything? Lemon or anything like that?
A. I did not.
Q. And then looking also at page 109, so now there's Phase --
let me orient you.
So 109, No. 19, you see where it says, "Use organic
raw apple cider vinegar as often as possible"?
A. Yes.
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Q. And do you see that this number is in a list of Phase 4,
which I think begins on page 105? Do you see that?
A. Yes.
Q. And if you go to the bottom of page 105, the very last
paragraph that starts, "Phase 4 is for the rest of your life,"
could you -- could you read that paragraph starting with that
sentence?
A. "Phase 4 is for the rest of your life. This phase will
consist of some basic and easy to follow dos and don'ts that
will become your new exciting habits."
Q. And continue.
A. "These new success habits will replace some of your old
failure habits."
A. "These new healthy habits will begin to replace many of
your old unhealthy habits."
A. "These new habits will give you a feeling of empowerment.
They will make you feel in control. They will give you
confidence, peace and security."
Q. And then if you go to the paragraph that starts, "The
simplest rule to follow," could you read that sentence?
A. "The simplest rule to follow is to eat anything you want
as much as you want as often as you want."
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A. "The only caveat is eating" -- "is only eat 100 percent
organic food."
Q. And you see where it says then below that, "In real life
in the real world eating only 100 percent organic food can be
next to impossible." Do you see that?
A. Yes.
Q. And you see the next sentence, "Basically then what you
work to achieve is to avoid, as best you can, the man-made
ingredients that cause obesity." Do you see that in the book?
A. Yes, I do.
Q. And that is the preface to the list of items in Phase 4;
is that correct?
A. Correct.
Q. Okay. So according to the book, Phase 4 is optional; is
that accurate?
A. Yes, unless you don't want to gain the weight back.
Q. Does it say that you will gain the weight back if you
don't do every single thing? Or does it say right here, "In
real life in the real world eating 100 percent organic can be
next to impossible and that what you work to achieve is to
avoid the best you can"?
A. That's what it says right there. But elsewhere in the
book, it says you will gain -- if you want to keep the weight
off, you need to do Phase 4.
Q. Right. But does it say that you have to do every single
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item in Phase 4? Does it say that it's a list of dos and
don'ts?
A. I have to find -- I'm sorry. I have to find exactly
where -- what it says.
Q. Okay. And I think perhaps I can assist. Is -- are you
referring to Chapter 9, "Putting it All Together: Summary and
Conclusion"? There were some pages that were read to you in
direct out of this summary portion of the book.
A. I don't -- I don't know. I don't know where it is.
Q. I think maybe if you look at page 224.
A. No. It wasn't a bulleted list. It was a paragraph, and
it was on the bottom of the right-hand side of the page.
Q. Well, maybe what we can do, since I imagine we'll take a
break at some point, maybe you could look over the break and
then maybe we could proceed.
A. Sure.
Q. If you could look with me -- and I think you testified on
direct about page 224. And that says "Phase 4." Do you see
on page 224 "Phase 4"?
A. Yes.
Q. And do you see that there on page -- on Phase 4, it says
"Things you must do." Do you see it says that?
A. Yes.
Q. And then it has a long list. Do you see the long list?
A. Yes.
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Q. And if you go to page 220, Phase 3, it says, "Things you
must do"; is that right?
A. Yes.
Q. But if you compare -- if you're to compare, for example,
page 224, the list on Phase 4 from Chapter 9, the summary, if
you compare that with the body of the book, with page 106 that
we've talked about, it appears they're inconsistent; is that
right?
A. I'm not sure what you're asking me.
Q. Well, on page 224 it gives a long list and it says that
you must do -- the things you must do in Phase 4 in the
summary. Do you see that?
A. Yes.
Q. But if you look at page 106, it says, "In real life in the
real world eating only 100 percent organic can be impossible.
What you work to achieve is the best you can to avoid the
man-made ingredients that cause obesity." Do you see that?
A. Yes.
Q. And then at the bottom of page 105 do you see where it
says, "Phase 4 is for the rest of your life. It contains some
basic and easy to follow dos and don'ts that will become your
new habits." Do you see that?
A. Yes.
Q. And with respect to Phase 3, if you look at the Chapter 9
summary -- so now I'm on page 220. Do you see that?
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A. Uh-huh.
Q. That Chapter 9 summary where it says "Things you must do
in Phase 3."
A. Oh, okay.
Q. Do you see that?
A. Yes.
Q. But then if you look at -- if you look in the book at page
99, do you see on page 99, which is the Phase 3 description in
the actual book -- I mean in the bulk of the book. Do you see
that?
A. Yes.
Q. And do you see that in that list, there are ten items?
Do you see that there are ten items?
A. Yes.
Q. Okay. And those -- can you read the paragraph --
incidentally, this is the paragraph that precedes the -- some
of the -- you know, the sugar and the corn starch that you
were testifying about on direct. Can you just read the
paragraph that begins, "This phase is relatively simple"?
A. "This phase is relatively simple. For 21 days immediately
following the last day of Phase 2 restricted diet, you are
allowed to eat as much food and any type of food you choose.
The exceptions are as follows."
Q. And the exceptions that -- these are some of the items you
talked about on direct examination; is that right? The no
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sugar and you described what sugar was; dextrose?
A. Correct.
Q. Okay. And then you talked about the starch and what
starch was?
A. Correct.
Q. Okay. So you see here that this -- this phase is 21 days
long; is that right?
A. I'm not sure where it says that, but --
Q. "This phase is relatively simple for 21 days immediately
following the last day of Phase 2."
A. Yes. Sorry.
Q. And, interestingly, what I was -- I know it's a lot of
back and forth between this -- the body of the book and the
summary, but if you -- curiously, if you look at page 99, the
list of items that's there that says you must do is these ten
items; and, afterwards, it says, "Additionally, doing as many
of the following is highly suggested and recommended." And
there's another list. Do you see that?
A. Yes.
Q. And that's where you pulled the multivitamin from, I
think, that we talked about before; is that right?
A. Yes.
Q. But if you look in the -- where it's summarizing the book
in Chapter 9 and that Phase 3 -- it's on page 220?
A. Yes.
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Q. There it says things you must do and it has many more than
ten things. Do you see that?
A. Yes.
Q. So the book in itself is inconsistent with respect to that
matter; is that right?
A. I would say it's confusing.
Q. Okay.
Was Parastroy one of the items that you bought at the
Vitamin Shoppe?
A. Yes.
Q. And where in the protocol does it call for Parastroy?
A. Well, it doesn't call for Parastroy. It calls for a
parasite cleanse.
Q. Oh, okay.
A. And that's what the Vitamin Shoppe told me it was.
Q. And is that in the -- is that in the optional Phase 1?
A. I don't remember where it is.
Q. You don't know which part of the protocol that comes from?
A. I do not.
Q. Well, let's look at, if you would -- maybe we can do it
this way. If we can look together at page 93 -- or actually
to the bottom of 92. Do you see where it says "Phase 2"?
A. Yes.
Q. Okay. You see where it says, "This is the exact
Dr. Simeons weight loss protocol as used by hundreds of
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thousands of patients around the world over the last 30 years
with spectacular permanent results." Do you see that?
A. Yes.
Q. And it goes on, "The entire manuscript that describes this
protocol entitled Pounds and Inches: A New Approach to
Obesity by Dr. A.T.W. Simeons, M.D., is available for you to
read in its entirety at www.naturalcures.com." Do you see
that?
A. Yes.
Q. Did you read Simeons protocol in its entirety?
A. I did not.
Q. Did you go to www.naturalcures.com Web site?
A. I don't think so.
Q. You don't remember if you did or not or --
A. I don't think I did because if I would have gone there, I
would have read his report so --
Q. Okay. So are you uncertain or --
A. I'm uncertain.
Q. You're uncertain if you went to that Web site?
A. Uh-huh.
Q. Do you mean in connection with your testimony today or do
you mean at any time ever?
A. When I was reading the book, sometimes I would see a Web
site and I would go to it. And sometimes I wouldn't. There
was a lot of Web sites. I don't remember if I went to this
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one or not. But I did not read the report.
Q. Okay. The protocol -- you mean the Pounds and Inches --
A. Correct.
Q. -- A New Approach to Obesity by Dr. Simeons?
Okay. And do you see where it says, "This phase must
be done under the supervision of a licensed health care
practitioner." Do you see that?
A. Yes.
Q. Okay. And so this portion of the protocol, would you
agree, is -- this is mandatory, would you agree, based on your
reading of the book?
A. Yes.
Q. And the things that are mandatory are included on page 93.
And so to -- I see -- I'm going to just list out the things
that I see being mandatory and you tell me if I misstate it or
if I'm wrong based on your reading. Is that all right?
A. Yes.
Q. Okay. It's an injection of between 125 to 200 units HCG,
human chorionic gonadotropin. Do you see that?
A. Yes.
Q. And you would agree that that's required; is that right?
A. Yes.
Q. One half to one gallon of water, would you agree that's
required?
A. Yes.
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Q. The other things are eat as much as you want and do -- and
what's it say about item -- what does it say about Phase 1?
Do as many as you choose, is that what it says, from Phase 1?
Do you see that?
A. Yes.
Q. Day two it says, "Repeat day one." Then day three, it
says, "Weigh yourself." The next bullet point, "Take the
injection of HCG." You see that?
A. Yes.
Q. Then it says the water again. Do you see that?
A. Yes.
Q. Then it has the breakfast that has the coffee and the list
of teas. Do you see that?
A. Yes.
Q. Then it tells you to drink tea in the morning. And I'm
going over now to 94. Do you see that?
A. Yes.
Q. On page 94, that's the hundred grams of the raw meats.
And that's where you -- where you got the list that you went
to Whole Foods and bought; is that right?
A. Yes.
Q. And then the handful of the following organic vegetables.
Do you see that?
A. Yes.
Q. And that's where you decided -- that's the list that you
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used when you got a large handful; is that right?
A. Yes.
Q. And, incidentally, a large handful, is that -- would you
call that a -- like precise or imprecise, a large handful?
A. I guess imprecise.
Q. Right. It depends on your hand, right?
A. Right.
Q. I mean, a huge guy it's going to be -- a large handful for
him is different than a very small statured woman; is that
right?
A. Yes.
Q. And then do you see it says, "One small organic apple or
small organic grapefruit or a handful of organic
strawberries"?
A. Yes.
Q. And that's the part where you had -- you illustrated in
the picture -- you had both, you had one apple and one
grapefruit and they're both organic in your picture; is that
right?
A. Yes.
Q. And you chose not to do the strawberries; but if you
wanted to, you could have done a grapefruit and strawberries;
is that right?
A. Right.
Q. And then it talks about seasoning. And that is the
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optional seasoning -- do you see that -- with organic lemon,
pepper, salt. You see that's optional?
A. Yes.
Q. And you chose not to season when you did your pictures; is
that right?
A. Right.
Q. And then dinner it says, "Same choices as for lunch." Do
you see that?
A. Yes.
Q. And then it says but you just can't do the two exact same
meals in the day, right?
A. Correct.
Q. So when you did your pictures, you -- you had different
vegetables? One was I think -- was it cucumber --
A. Yes.
Q. -- for lunch and spinach for dinner?
A. Yes.
Q. And then you had two different meats as well when you did
your pictures, right?
A. Yes.
Q. So you followed that and -- you followed that structure --
or that recommend -- or that requirement.
Then do you see it says again with the black coffee
and the teas on the top of page 95? Do you see that?
A. Yes.
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Q. Then it talks about "no medicines" is the next one. Do
you see that?
A. Yes.
Q. "No cosmetics." You see that?
A. Yes.
Q. "No moisturizers or lotions." You see that?
A. Yes.
Q. And then it says you have to eat everything that they --
was in there. Do you see that?
A. Yes.
Q. And then it says that if you want to, you can eat fruit in
between meals rather than with your meal; is that right?
A. Yes.
Q. And then that's it, right? That's it?
For Phase 2, that's the extent -- because then after
that, it says, "It's encouraged but not required that you do
the following things"; is that right?
A. Correct.
Q. So in terms of what Phase 2 actually requires, we just did
it? We just talked about it; is that correct?
A. Correct.
Q. Now, if you go to Phase 3 -- and I'll be quick because we
have already talked about most inconsistent descriptions of
Phase 3 that are in the book. It talks about "being an
important phase and it's also part of the original Simeons
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protocol." Do you see that?
A. Yes.
Q. Okay. So do you agree that this -- this is the one we
talked about that's for 21 days, right?
A. Yes.
Q. And this -- you would agree with me, that you -- you've
got to do this too --
A. Yes.
Q. -- right?
So this is -- this is mandatory -- this also is
mandatory?
A. Yes.
Q. And there's a list of ten things, except that all ten
things are not things to do; they're all things not to do; is
that right?
A. On page 99?
Q. Yeah, on page 99. So there's the first one, two, three,
four, five, six that say no. No to this, no to that.
A. Yes.
Q. Do you see that?
A. Yes.
Q. And then the next four are limits. You see that?
A. Yes.
Q. So you don't have to buy anything; you just have to not
have things?
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A. Yes.
Q. Okay.
MS. GURLAND: So are we -- do you want -- this is
kind of a good time to break if the Court wanted to break.
But I could continue if people wanted to continue.
THE COURT: Are you telling me you need a break?
MS. GURLAND: No, I don't actually. I just wanted to
make sure that --
THE COURT: Go ahead.
MS. GURLAND: Okay. I will.
BY MS. GURLAND:
Q. So I'll go quickly through the whole body cleanse. Is
that -- that's one of the products that you introduced on --
A. Yes.
Q. -- direct.
And that comes from Phase 1, is that right, the
cleanse?
A. I'm not sure which phase.
Q. Well, we know -- I guess I could do it this way. We know
it's not in the -- the mandatory things from Phase 2 or 3,
right?
A. Correct.
Q. Okay. So it's optional, right?
A. I don't know that I'd use the word optional. I would say
highly suggested or recommended is the words that I see in the
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book more often than optional.
Q. So if I said it's not mandatory, is that better?
A. Yes.
Q. Okay. So the whole body cleanse, it's in Phase 1, it's
not mandatory; is that right?
A. I don't think so.
Q. There's only two that I couldn't match up exactly with the
list, so it goes easier after Parastroy and whole body
cleanse.
If you go to candida cleanse, I can show you it's on
page 78, No. 9. And that's from Phase 1; is that right?
A. Correct.
Q. So it's not mandatory, correct?
A. Correct.
Q. Heavy metal cleanse, page 79, No. 15, that's in Phase 1
too, isn't it?
A. Correct.
Q. So that is not mandatory, correct?
A. It's not mandatory.
Q. Super colon cleanse, I find that at page 78, No. 8. Colon
cleanse, Phase 1, is that right?
A. Yes.
Q. Not mandatory; is that right?
A. Correct.
Q. Organic coconut oil, I find that on page 77, No. 3. Are
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you with me?
A. Yes.
Q. Okay. That's in Phase 1; is that right?
A. Yes, it is.
Q. That is optional? I mean, no. We agreed on saying not
mandatory?
A. That's what it says.
Q. Vitamin E. I find that at page 85, No. 42. Do you see
that?
A. Yes.
Q. That is in Phase 1; is that correct?
A. Correct.
Q. And that is not mandatory --
A. Correct.
Q. -- is that right?
BD by acidophilus. Do you see that?
A. No. Say that again.
Q. I don't know where in the Phase 1 list it is. I assume
this is one of the ones that you found a recommendation and
got an exact product at the Vitamin Shoppe?
A. The probiotics maybe?
Q. Correct.
A. Uh-huh.
Q. And that's in Phase 1; is that right?
A. I don't see it. Oh, No. 14, yes.
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Q. Okay. So that's No. 14 and it's in option 1 and it's not
mandatory; is that right?
A. Correct.
Q. Coral calcium. I'm on page 79, No. 13.
A. Uh-huh.
Q. That's from Phase 1 of the protocol; is that right?
A. Correct.
Q. And it's not mandatory; is that right?
A. Correct.
Q. And I think that in Phase 2 -- because I want to -- to be
complete here. If we go to -- I think there's some mention in
Phase 2, the mandatory part, so I just want to make sure we
bring that to your attention also.
You see on page 93 in Phase 2 -- now this is the --
this is the part of it that's required, do you see that? It
says, where it's talking about the water, it says, "Drink one
half to one gallon of water through the day," and then it
says, "ideally with coral calcium sachets"?
A. Yes.
Q. So that is in the section that is the required part of
this; is that right?
A. Yes.
Q. But it says the word "ideally." So within the required,
there's an option; is that right?
Is that right?
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A. The problem is a lot of the stuff that's in the optional
Phase 1 is also mentioned in Phase 3, which is required. So
it's quite confusing so --
Q. Right. Because --
A. I'm --
Q. -- there's overlap?
A. I'm answering your questions, but I need to point that
out.
Q. Okay. Because there's -- there's overlap in some of
the -- in some of the recommendations --
A. Correct.
Q. -- right?
And in phase -- but Phase 3 if you look -- at
least -- and I know that's the one we talked about that
there's some inconsistencies internally in the book. But if
you look at Phase 3 on page 99, are you with me there?
A. Yes.
Q. In terms of the things that are mandatory, there's not --
there's not any products, right? It's just -- this is the one
we talked about that there's six no's and four limits?
A. Yes. But then there's the highly suggested and
recommended.
Q. Right. Then there's another list of things that are
suggested?
A. Right.
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Q. Okay. So sometimes the things that are suggested in Phase
3 are some of the things that are suggested in Phase 1?
A. Correct.
Q. And they may also be some of them like the apple cider --
raw vinegar, they may be suggested in 1 and 4 and 3; is that
right?
A. Correct.
Q. Okay. Essential enzymes, page 86, I see it at 43.
Digestive enzymes. These are all products that you purchased,
correct?
A. Correct.
Q. And that's in Phase 1, digestive enzymes?
A. Correct.
Q. And not mandatory, correct?
I'm sorry. I'll wait.
A. Highly suggested and recommended in Phase 3. So we're
talking about Phase 1, it's optional in Phase 1.
Q. Okay. And then in Phase 3 on page 99, I think -- could
you agree that if it says, "Additionally, doing as many of the
following is highly suggested and recommended," would you
agree with me that is to say that that's not mandatory?
A. Right. That's not what it says, but that's true.
Q. It's a fair characterization of what it says?
A. Uh-huh.
Q. Krill oil. I'm at page 85, No. 41. That's in Phase 1?
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A. Yes.
Q. Not mandatory, correct?
A. Correct.
Q. Acetyl-L-carnitine, you see that at page 80?
A. Yes.
Q. No. 21, the very bottom of the page. Not mandatory,
correct?
A. Correct.
Q. Liver cleanse. I'm at page 90 on that one, No. 58.
A. Yes.
Q. That's in Phase 1, correct?
A. Correct.
Q. And that's not mandatory, right?
A. Not in Phase 1, right.
Q. Sorry?
A. No, it's not mandatory in Phase 1.
Q. Okay. Is it mandatory in Phase 3?
A. I'm looking.
Q. Okay. I thought Phase 3 was the page 99.
A. Oh, right. No, it's -- if it's on this list, it's highly
recommended, not mandatory.
Q. Okay. Thank you.
But you did buy some things at the Vitamin Shoppe
that were mandatory, right?
A. Yes.
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Q. You bought the teas. So going to the -- where the
original Simeons protocol is outlined at page 90 -- starting
at the bottom of 92 and the top of page 93 of the book?
A. Yes.
Q. And then I'm at day three. And I see these teas here. So
organic green tea or organic Yerba Mate tea or Wu Long tea or
chamomile tea. And then it says, "You may have as much as you
desire"?
A. Correct.
Q. And then you bought -- sorry.
Also, if you go to the next page where it's talking
about dinner and then the top of 95. Do you see where it
says, "Black coffee, organic green tea, Wu Long tea, organic
Yerba tea can be consumed in any quantity." And then it says,
"You should drink at least one cup of Wu Long or Yerba Mate
tea and one cup of chamomile tea each day." Do you see that?
A. Yes.
Q. You bought Yerba Mate, organic green and chamomile tea?
A. Yes.
Q. And when you bought -- did you buy like -- it looked like
like a box of each of them; is that correct?
A. Correct.
Q. So do you know how many tea bags were in each box? It
wasn't like one tea bag, right? There's -- do you know how
many?
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A. I'm not sure. I'm assuming --
Q. Do you have it?
A. -- eight, ten.
Q. Do you have it to see how many tea bags are in the Yerba
Mate and the green tea and the chamomile?
A. I think I'd have to open it up to find out.
This is a resealable like so you have several. It's
not separate tea bags.
Q. Okay. That's different.
MS. GURLAND: Sorry, your Honor. I should have asked
if I could approach.
THE COURT: You can approach.
BY MS. GURLAND:
Q. How about the Yerba Mate and chamomile, how many in those?
A. 30 in the chamomile and 24 in the Yerba Mate.
Q. And do you remember how much -- how much the teas cost?
A. I do not.
Q. I think -- it wasn't introduced into evidence. I just
want to show you and see if it refreshes your memory about
about how much did the various teas cost?
A. Yeah, I bought a lot of products so I wasn't going to
remember the tea. But, yes, this is the receipt.
Q. How much did the teas cost?
A. The chamomile was $7.29, the organic jasmine tea was
$8.99, the Yerba Mate tea was $5.99.
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Q. Of the things that you bought at the Vitamin Shoppe for --
I don't know -- $300 and some change, those are the things
that are required in the -- required in the book; is that
right?
A. Yep.
Q. Okay.
A. I couldn't find the Wu Long tea. That's why I didn't buy
it.
MS. GURLAND: If the -- does the Court -- this would
be a great place for a break in between topics if the Court
would like to take a break.
THE COURT: No.
MS. GURLAND: Should I march forward?
MS. GURLAND: All right. I will do that.
THE COURT: Move forward.
MS. GURLAND: I will move forward. Thank you, your
Honor.
BY MS. GURLAND:
Q. You also talked about the purchases that you made at the
Fresh Market. And those were the -- is -- those were the
meats; is that right?
A. The what?
Q. The meats, the two?
A. Well, I went to Fresh Market first and they didn't have
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organic meat so I just bought regular meat and I bought the
organic apples. They were out of organic grapefruit, so I
bought regular grapefruit there. So then I went to Whole
Foods to get organic.
Q. Okay. Is it -- does -- is it your -- is it that they
didn't have the -- or that the Fresh Market didn't have
organic meat that day or is it your testimony that they just
don't -- that Fresh Market doesn't carry organic meat at all?
A. My understanding was that they don't carry it, so --
Q. Okay.
A. -- I -- but they do carry organic grapefruit, but they
were out of them that day.
Q. Okay. And Whole Foods did have the organic meats that you
took photos of and --
A. Yes.
Q. Are you aware that the book -- did you -- do you recall
reading from the book there's actually a discussion of
shopping for organic produce. Do you remember reading that
when you read the book?
A. Can you be more specific?
Q. Yes, I can. If you go to Pages 111 and 112 of the book.
And then just to orient you, this is a comment that comes
after Phase 4. Do you see that?
A. After the bullet -- or after the numbers?
Q. Yeah -- well -- yes, exactly. So because I just -- I want
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to make sure that we're at the right phase. If you're at
page 105 and you see that it's Phase 4 and then there's a
number of points. And then do you see after -- after point
50?
A. Yes.
Q. And it says, "This list may seem overwhelming and
difficult to implement in real life. I can tell you it's
relatively easy. The key is to shop in stores which carry the
types of products that do not make you fat. Shop at your
local farmer's market, your local health food store or stores
such as Whole Foods, Wild Oats or Trader Joe's." Do you see
that?
A. Yes.
Q. "You still must read the ingredients list on the label. I
recently went into a major supermarket chain to do some
investigating. I looked at mustard, ketchup and bread. Every
single jar of mustard had high fructose corn syrup in it.
Every single bottle of ketchup had high fructose corn syrup in
it. Most amazingly, every single loaf of bread had some kind
of super highly refined processed sugar such as high fructose
corn syrup, corn syrup, dextrose, malto dextrose, honey,
molasses, et cetera. This is why obesity is an epidemic
today. I then went to Whole Foods. I easily found many
brands of mustard, ketchup and bread that did not have any
high fructose corn syrup or any other super refined highly
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processed sugars. You see, it's not that mustard, ketchup,
bread or any other type of food is fattening. It is the
ingredients and food processing techniques of food that make
it fattening. Understand this means you can eat virtually any
kind of food you want and not gain weight. You can still eat
mashed potatoes and gravy, cheeseburgers, french fries, pizza,
pasta, cheese, butter, eggs, pot roast, cakes, cookies, ice
cream, et cetera. The key is reading the ingredient list."
Do you see that? I'm now on the top of page 12.
A. I do.
Q. "All of these foods are available without the forbidden
fat inducing man-made ingredients. They are all available
with 100 percent organic whole food, non-refined, real
ingredients as nature intended. This kind of food actually
tastes much better, is more filling and much more satisfying
than the man-made mass-produced counterparts that are sold by
the large publicly traded food conglomerates."
Do you see that?
A. I do.
Q. And then do you see the very next sentence says, "It is
impossible for the average person to eat this way all the
time."
A. Yes.
Q. Now, in your -- are you -- when you started your
testimony, you started with the limits of what you were going
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to testify about and what you weren't going to testify about.
Do you recall that, right at the beginning of your direct
examination?
A. Yes.
Q. And one of the things that you weren't going to testify
about is to give, you know, any opinions about the
effectiveness of the protocol, right?
A. Correct.
Q. Okay. And do you know or have you been made aware that
the -- that the -- actually that the issue in this case is
whether the infomercials misrepresented the contents of the
book?
THE COURT: No, no. We'll instruct the jury as to
what the issues in this case are.
MS. GURLAND: I just wanted to see if she was aware.
THE COURT: We will instruct the jury as to what the
issues in this case are. You will not.
BY MS. GURLAND:
Q. Do you know -- withdrawn.
So the products that you purchased and showed to
the -- and showed to the jury today from, I think it was 9 and
10, Exhibits 9 and 10, in showing that, it's just -- it's just
an illustration; is that right? An illustration --
A. That's --
Q. -- of things you found in recommended phases of the book;
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is that right?
A. That's correct.
Q. Okay. And the photographs that you showed were
illustrations of -- at least for -- in yours what is the menu
that you would recommend in the diabetes diet; is that right?
A. Correct.
Q. Do you ever counsel people who are -- who really very much
want to lose weight?
A. I have in the past, yes.
Q. And if you're counseling people who really very much want
to lose weight, would you show -- do you think that -- would
you give them the same menu as the three pictures that you
showed in court today?
A. If that was the right calorie level for them, yes.
Q. But when we talked about the pictures, you said that for
some people, that would make them gain weight; is that right?
A. Correct.
Q. And when your -- when you were counseling people -- how
long ago was it that you counseled people who wanted to lose
weight?
A. Probably about ten years ago.
Q. Was your experience that when people were trying to lose
weight, that it -- if they saw results, that helped to
motivate them?
A. Yes.
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Q. Was that your experience?
A. Yes.
Q. Did that help them to be successful, if they saw results?
A. Yes.
Q. Which helped them to stay with what they were doing?
A. Yes.
Q. Would you agree that when you're counseling people that if
you can teach people to think differently about the -- to
develop healthy tools, that that will help them -- healthy
tools with food -- that that will them to keep weight off in
the long run?
A. I'm -- can you be more specific? I don't --
Q. Well, are there -- are there certain -- there are certain
basic principles we talked about at the beginning, like eat
fruits and vegetables. Is that a good -- is that a good
policy in your opinion?
A. Yes.
Q. And then drinking water, is that something you might talk
to people about who are trying to lose weight?
A. Yeah. It probably wouldn't be at the top of my list, but
sure. It's healthy.
Q. But fruits and vegetables, is that -- that's one that we
can agree on that that's -- that's something you might tell
people who are trying to lose weight; is that right?
A. In general, yes. I would -- I would assess what they were
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already doing and make recommendations based on what they're
already doing. If they're not getting enough fruits and
vegetables, I would tell them to eat fruits and vegetables.
If they're eating too much fruit, I would tell them to cut
back.
Q. So it really depends on the person because people could
have different experiences on different diets, right?
A. Yes.
Q. And there are a lot of diets that are in the marketplace?
Are you familiar with a lot of different diets?
A. Absolutely.
Q. There's the -- have you heard of the Atkins diet?
A. Yes.
Q. And the South Beach diet?
A. Yes.
Q. And those differ from one another; is that right?
A. Yes.
Q. And there are -- I don't know, Hydroxycut, is that -- it's
some kind of pill. Are you familiar with that?
A. I think it's a supplement, not a diet. I don't know.
Q. Is there an Alli? Have you heard of some substance that
prevents you from -- or says it prevents you from absorbing
the nutrients that are in your food? Did I get that right?
A. I think that is a fat blocker pill product. It's not a
diet. I don't know.
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Q. And is it -- and there are various others; is that right?
I mean, numerous others --
A. Yes.
Q. -- is that correct?
And so when you're trying to evaluate them, one of
the things you think about is what is going to work for the
people that you're counseling; is that right?
A. Yes.
Q. Because it's kind of an individual's decision how they'd
like to lose weight, isn't it?
A. What's going to work for them will vary, yes.
Q. And the best -- I mean, when you're trying to counsel
someone and help them to lose weight, an important thing is --
for each person is what's going to work based on what they
do -- based on who they are and their lifestyle; is that fair
to say?
A. Yeah. Something they can live with for the rest of their
lives, yes.
MS. GURLAND: May I have a second?
THE COURT: Sure.
(Brief pause.)
BY MS. GURLAND:
Q. Thank you very much, Ms. Dobbins. I don't have anything
else.
THE COURT: We're going to break for lunch now. It's
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quarter to 12:00. We'll resume at 1:15.
Ladies and gentlemen, as always, do not discuss the
case with anyone or allow anyone to discuss it with you.
Please use the elevators on that side of the building. We'll
see you here at 1:15. Have a good lunch.
(Jury out.)
THE COURT: You may step down, ma'am.
Anything we need to discuss before we break?
MR. KRICKBAUM: Judge, there's just the issue that I
raised in general earlier that we haven't talked about in
detail. There is a piece of evidence that the government is
seeking to admit after the cross of the postal inspector
concludes. And there's a disagreement with the defense about
that. We're happy to take that up whenever the Court would
like.
THE COURT: Well, we have some time. That won't be
for a while yet. So we'll take that up later.
MR. KRICKBAUM: Okay.
THE COURT: You will clearly now have enough time to
do your redirect.
MR. KRICKBAUM: Yes.
THE COURT: So that your witness can leave when she
needs to.
MR. KRICKBAUM: Yes, your Honor.
THE COURT: Okay. All right.
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MR. KRICKBAUM: Thank you, Judge.
* * * * *
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EASTERN DIVISION
)
Plaintiff, )
)
v. ) No. 10 CR 886
)
) November 7, 2013
APPEARANCES:
MS. APRIL M. PERRY
Suite 500
(312) 353-5300
(312) 558-5600
Attorney at Law
17th Floor
(312) 420-9263
MS. MARY M. HACKER
Official Court Reporters
(312) 435-6890
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THE CLERK: 10 CR 886, United States vs. Trudeau.
THE COURT: Those are for later discussion.
Bring the jury out?
MR. KRICKBAUM: Yes. We are ready, Judge.
THE COURT: Is the defendant ready?
MR. KRICKBAUM: Actually, Judge, before Mr. Kirsch
responds, there is one issue I wanted to raise about the scope
of redirect; and, that is, Ms. Gurland asked the expert a
number of questions about whether she would recommend various
things that are in the book, such as eating fruits and
vegetables, and so on.
THE COURT: Yes, she did.
MR. KRICKBAUM: She also asked her questions about
would the expert recommend that if people wanted to lose
weight, they should eat the meals in the 1750 calorie meals.
I plan, on redirect, on asking the expert what's the
lowest number of calories she's ever recommended a patient
eat. I don't know what the precise answer to that is going to
be. I expect -- and, I guess, I hope -- it will be,
"Something more than 500."
My only concern -- I think that the door to that was
clearly opened by their cross. My only concern is that I
don't think that should open the door to a free-for-all of
testimony in a defense case about whether this diet is
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303
recommended or effective or safe.
We couldn't have been clearer in our direct
examination that we were not eliciting opinions about that.
And the defense kind of tiptoed into it. And my concern is
that the jury may now be left with the impression that this
might be something our expert would recommend. And we really
weren't in a position to object to those questions or else the
jury might have thought that we were trying to hide that fact
from them.
So, I think this redirect question is a fair one;
but, I also think that it should not open the door to a lot of
evidence that the Court has already excluded.
THE COURT: Well, I am not going to make a ruling as
to what's going to happen tomorrow or the day after. If you
are asking me whether or not you can follow up on the
questions asked on cross-examination, the answer is "Yes."
MR. KRICKBAUM: Very well.
THE COURT: Okay.
Anything else?
(No response.)
THE COURT: Bring out the jury, please.
Bring your witness forward.
(Jury out.)
THE COURT: Ma'am, you understand you are still under
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oath?
THE WITNESS: Yes.
THE COURT: Redirect.
MELISSA DOBBINS, PLAINTIFF'S WITNESS, PREVIOUSLY SWORN
REDIRECT EXAMINATION
BY MR. KRICKBAUM:
Q. Good afternoon, Ms. Dobbins.
A. Good afternoon.
Q. On your cross-examination, Ms. Gurland asked you a number
of questions about some of the products that are listed in the
book.
Do you recall that?
A. Yes.
Q. And there was a fair amount of conversation about whether
some of these products were required or strongly suggested or
something else.
Do you remember that?
A. Yes.
Q. All right.
I'd like to address that issue with respect to the
products that you purchased and that you testified about
earlier today.
Do you have a copy of Government Exhibit 4, The
Weight Loss Cure book, on the stand in front of you?
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A. Yes.
Q. Would you please turn to Page 220?
A. Okay.
Q. This is for Phase 3, correct?
A. Correct.
Q. And do you see where it lists "Things You MUST Do"?
A. Yes.
Q. Can you please read the third bullet point there?
A. "Drink one-half to one gallon pure water with coral
calcium daily."
Q. And is coral calcium a product that you bought?
A. Yes.
Q. Please read the next bullet?
A. "Drink at least one cup organic chamomile tea daily."
Q. Is that a product that you bought?
A. Yes.
Q. Skip the next one and read the one after that, please.
A. "Drink at least one cup Yerba Mate tea daily."
Q. Is that a product you bought?
A. Yes.
Q. Please read the next bullet.
A. "Use organic coconut oil daily."
Q. Did you buy that?
A. Yes.
Q. The next bullet?
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A. "Use organic raw apple cider vinegar daily."
A. Yes.
Q. Skip the next one and please read the next bullet after
that?
A. "Do a colon cleanse."
A. Yes.
Q. Skip a few down.
Do you see a bullet point about digestive enzymes?
A. Yes.
Q. Please read it.
A. "Take digestive enzymes with food."
A. Yes.
Q. A few more down, do you see "krill oil"?
A. Yes.
A. "Take krill oil daily" -- "Omega-3s daily."
Q. Did you buy krill oil?
A. Yes.
Q. The next one?
A. "Take probiotics daily."
A. Yes.
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Q. And the next one?
A. "Use stevia organic agave nectar" -- "Use stevia organic
agave nectar, organic raw honey or organic raw sugar cane as
your only sweetener sources."
Q. And I believe Ms. Gurland asked you whether you only had
to use stevia if you wanted to use a sweetener; is that right?
A. I'm sorry, she asked me, what?
Q. She asked you if you had to use stevia only if you wanted
to use a sweetener?
A. Correct.
Q. Are there any other types of sweeteners permitted in Phase
3, other than the ones on this list; to your knowledge?
A. No.
Q. Then if you go to Page 221, the next page, under, "Things
STRONGLY SUGGESTED you do," towards the bottom of that page do
you see the bullet point about "Q-Link"?
A. Yes.
Q. Can you please read that one?
A. "Use a Q-Link, E-Pendant, Biopro or such devices."
Q. Is Q-Link one of the products that you purchased?
A. Yes.
Q. And, then, if you'll please turn to Page 224?
A. Okay.
Q. Do you see this as a summary for Phase 4?
A. Yes.
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Q. And under "Things You MUST Do," will you please read the
third bullet?
A. "Do the LifeForce Candida cleanse."
Q. Is that something that you bought?
A. Yes.
Q. The next bullet?
A. "Do a liver cleanse."
A. Yes.
Q. The next bullet?
A. "Do a parasite cleanse."
A. Yes.
Q. The next, please?
A. "Take a heavy metal cleanse product, or get chelation."
Q. Did you buy a heavy metal cleanse?
A. Yes.
Q. The next one?
A. "Take a whole food supplement daily."
A. Yes.
Q. The next one?
A. "Drink one-half to one gallon pure water with coral
calcium daily."
Q. Skip the one after that and please read the next bullet?
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A. "Do a colon cleanse."
Q. Did you buy colon cleanse?
A. Yes.
Q. And I don't remember if I asked you, did you buy coral
calcium?
A. Yes.
Q. Skip down a few more to the one about "digestive enzymes."
A. Yes.
Q. Skip down to the "Acetyl-L Carnitine."
A. Yes.
"Take Acetyl-L carnitine daily for three to six
months."
Q. Did you purchase that?
A. Yes.
A. "Take Vitamin E daily."
A. Yes.
Q. The next one?
A. "Take krill oil, Omega-3s daily."
A. Yes.
Q. And the next one, please?
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A. "Take probiotics daily."
Q. Did you buy probiotics?
A. Yes.
A. "Use stevia organic agave nectar, raw organic honey, raw
organic sugar cane as sweeteners."
Q. And, then, on the next page, 225, under, "Things STRONGLY
SUGGESTED you do," do you see the third bullet, "Drink organic
green tea"?
A. Yes.
Q. Is that something that you purchased?
A. Yes.
Q. And, then, on the next page, this is still "Things
STRONGLY SUGGESTED you do," do you see the bullet point about
"Q-Link" around the middle of that list on Page 226?
A. Yes.
Q. And did you buy Q-Link?
A. Yes.
Q. All right.
One of the other things that Ms. Gurland asked you
about was Phase 4; and, specifically, whether Phase 4 is
required or not.
Do you remember those questions?
A. Yes.
Q. And I believe your answer was that, "Phase 4 is required
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311
if you want to keep the weight off"?
A. Correct.
Q. Did I get your answer correct?
A. Correct.
Q. Ms. Gurland asked you where you were getting that from in
the book, and I think she said that she might come back to you
on that after a break.
Could you please turn to Page 141?
A. Okay.
Q. Are you there?
A. Yes.
Q. Do you see the question, "Will I gain the weight back?"
A. Yes.
Q. Can you read the first two sentences of the answer to that
question?
A. Okay.
"If you go back to eating fast food, restaurant food
and food containing trans fats, high fructose corn syrup,
super highly-refined food, artificial sweeteners, meat,
poultry and dairy with growth hormone and antibiotics, et
cetera, et cetera, et cetera, you will, in fact, mess up your
hypothalamus, again, and regain the weight."
The next sentence, too?
Q. The next sentence please?
A. "If, however, you follow the dos and don'ts in Phase 4,
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the weight should never return."
Q. And, then, can you please turn to Page 106, one of the
pages that Ms. Gurland asked you about?
A. Okay.
Q. Now, Ms. Gurland read part of this page to you, but I'd
like you to read one of the sentences that she did not.
Do you see the No. 1 near the bottom of that page?
A. Yes.
Q. Can you please read the sentence right before that?
A. Yes.
"To keep the weight off permanently and to achieve
vibrant dynamic health, here is a list of dos and don'ts."
Q. And if you look at the next couple of pages, how many dos
and don'ts are listed?
A. 50, 5-0.
Q. 50?
A. Yes.
Q. And looking at Page 107, do you see No. 4?
A. Yes.
Q. What is that?
A. "Do a Candida cleanse."
Q. Is that a product that you bought?
A. Yes.
Q. No. 108 -- Page 108 -- No. 5?
A. "Clean your colon."
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Q. Is that a product you bought?
A. Yes.
Q. No. 6?
A. "Do a liver cleanse."
Q. Which you bought?
A. Yes.
Q. No. 8?
A. "Do a parasite cleanse."
Q. You bought that, as well?
A. Yes.
Q. No. 9?
A. "Do a heavy metal cleanse."
Q. You bought that?
A. Yes.
Q. The next page, No. 13?
A. "Take Acetyl-L-Carnitine."
Q. Which you purchased, correct?
A. Yes.
Q. No. 22?
A. "Every day take a whole food supplement, probiotics,
Vitamin E and krill oil."
Q. You purchased all of those things, correct?
A. Yes.
Q. And No. 23?
A. "Use stevia as your sweetener of choice."
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Q. Going to the next page -- you bought stevia, as well,
right?
A. Yes.
Q. Going to the next page, Page 110, No. 29?
Q. And, then, the next page, Page 111, No. 50?
A. "Do a full-body fat cleanse."
Q. Did you buy both the digestive enzymes and the full-fat
body cleanse?
A. I did.
MR. KRICKBAUM: One moment, your Honor.
(Brief pause.)
MR. KRICKBAUM: No further questions, Judge.
THE COURT: Recross?
(Brief pause.)
RECROSS EXAMINATION
BY MS. GURLAND:
Q. I will be brief. I know you have a plane to catch. And
you will catch it, I promise you.
I just wanted to return to the -- we went over the --
some of the -- discrepancies, I think we agree that they were
before the Phase 3, as outlined in the bulk of the book, I
guess.
So, there's a Phase 3 summary, if you could look at
Page 99.
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Do you still have your book?
A. Yes.
Q. And we talked a little bit on direct about the Phase 3
summary on Page 99.
Do you see the chapter titled called, "The Cure
Revealed"?
A. Yes.
Q. Okay.
So, in the Phase 3 summary, which is contained in the
chapter of the book called "The Cure Revealed," in that
summary, that's the one we talked about with six, "No, don't
do this," and four, "Limit this."
Do you see that?
A. Yes.
Q. And in that summary, there's an additional list, right --
A. Yes.
Q. -- after that?
But the prefatory comment to that list is,
"Additionally, doing as many of the following activities is
highly suggested and recommended."
Do you see that?
A. Yes.
Q. Okay.
And, so, if you go to what you were just asked about
on recross, that is at Page 220.
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Do you see that?
A. Page 220?
Yes.
Q. Okay.
And in that, this comes from the chapter called
"Putting It All Together: Summary and Conclusions."
Do you see that?
A. Yes.
Q. And this list, it's just different from the list that's on
Page 99; is that right?
A. Correct.
Q. And you can't actually reconcile the two lists, can you?
A. You mean, they don't match up? No, they don't match up.
Q. They don't match up. Okay. Thank you.
And in terms of Phase 4. You were asked about Phase
4, whether or not you had do these things or how long you had
to do these things.
I just wanted to direct your attention to Page 92 of
the book.
I'm looking at -- under Phase 2, do you see where it
says, "This is the exact Dr. Simeons 'weight loss protocol' as
used by hundreds of thousands of patients around the world
over the last thirty years with spectacular permanent
results."
Do you see that?
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A. Yes.
Q. Then I'd direct your attention to Page 113 of the book,
and I am in the paragraph that begins, "When I first learned."
At the end of that paragraph, the very last sentence,
do you see where it says, "I encourage you to do this protocol
exactly as Simeons outlined it."
Do you see that?
A. Yes.
Q. Okay.
I'm going to Page 124 of the book, the very first
line on the top of 124.
Do you see where it says, "Simeons also did not
include Phase 1 or Phase 4 of the current protocol."
Do you see that?
A. Yes.
Q. Okay.
And, finally, I will direct your attention to Page
112.
At the bottom of the page, you see the paragraph --
the very last paragraph -- you see that it says, "If you have
successfully completed Phases 1, 2 and 3, implementing the
suggestions in Phase 4 should be easy."
Do you see that?
A. Yes.
Q. Okay.
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So, at least there the word in that instance is
"suggestions;" is that right?
A. Yep.
MS. GURLAND: Thank you.
MR. KRICKBAUM: Judge, I'll be brief.
Famous last words from a lawyer.
(Laughter.)
THE COURT: I never take them seriously.
(Laughter.)
MR. KRICKBAUM: For good reason, your Honor.
FURTHER REDIRECT EXAMINATION
BY MR. KRICKBAUM:
Q. Ms. Dobbins, Ms. Gurland just asked you about a quote on
Page 124. Can you turn back to that, please?
A. Yes.
Okay.
Q. Are you there?
A. Yes.
Q. She had you read the sentence, "Simeons also did not
include Phase 1 or Phase 4 of the current protocol."
Can you please read the next sentence?
A. Yes.
"This is because all of the issues that are addressed
in Phase 1 and Phase 4 did not exist in the 1950s and 1960s
when Simeons was treating patients."
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MR. KRICKBAUM: That's all I have, Judge.
MS. GURLAND: Thank you, your Honor. That's all I
have.
THE COURT: Nothing else?
MS. GURLAND: No, thank you.
THE WITNESS: Thank you.
(Witness excused.)
THE COURT: Recall and resume the testimony of the
previous witness, please.
THE COURT: Agent, you understand you are still under
oath?
THE WITNESS: Yes.
THE COURT: Very well.
Proceed.
CROSS-EXAMINATION - Resumed
BY MR. KIRSCH:
Q. Good afternoon, Agent Carrier.
A. Hello.
Q. Do you recall yesterday afternoon when we broke, I was
talking about a chart that I had prepared that had been marked
Defendant's Exhibit 2? Do you recall that?
A. Yes.
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Q. And we had went through, I think, 12 pages of that
exhibit.
Does that sound right to you?
A. Yes.
Q. All right.
And Pages 1 through 12 were admitted in evidence.
MR. KIRSCH: Your Honor, at this time, I move for the
admission of the remainder of that chart, Pages 13 through 30,
and I ask that it be published to the jury.
THE COURT: Okay.
The exhibit number?
MR. KIRSCH: 2, your Honor.
THE COURT: Defendant's Exhibit 2, Pages 13 through
30, were admitted without objection.
(Defendant's Exhibit No. 2 received in evidence.)
MR. KIRSCH: And may I publish it, please?
(Document tendered to the jury.)
(Brief pause.)
BY MR. KIRSCH:
Q. Okay, Agent Carrier, do you recall that yesterday we
started with Page 1 and we went through, "The Protocol is Not
a Diet"?
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A. Yes.
Q. And you read those passages from the book contained in
Paragraphs 1 and 2; is that correct?
A. Yes.
Q. And, then, we also went through, "The Protocol is a
Permanent Cure," and you read those passages on Pages 3
through 10.
Do you see that?
A. Yes.
Q. All right.
I want to call your attention to Page 3 for a second.
And I specifically want to call your attention to the middle
column: "Statements From the Infomercials."
And, by the way, if you ever want to see your chart,
Government Exhibit 19, if you don't have it up there, just
tell me and I'll give it to you. Okay?
A. Okay.
Q. But yesterday, I think we compared the "Statements From
the Infomercial" in my chart to the statements on your chart,
right?
A. Yes.
Q. Okay.
So, do you see the third bullet point there on your
chart?
A. Yes.
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Q. All right.
Do you see in that one sentence that the word
"opinion" appears twice?
A. Yes.
Q. Okay.
And, then, if you go to the next page and you see the
second bullet point?
A. Yes.
Q. And do you see there in the infomercial Trudeau says, "It
will give you what -- " I think that's supposed to be "what."
It may be "want" in the infomercial, but I think it's supposed
to be "what."
"I will give you what I believe to be the cure."
Do you see that?
A. Yes.
MR. KIRSCH: Your Honor, I would -- I propose to read
a stipulation at this point. I don't know if you want me to
do it during cross-examination. I can do it during my case,
but --
THE COURT: Is there an objection?
MR. KIRSCH: Your Honor, I'd like to read a
stipulation agreed to between the government and the
defendant, signed by the government prosecutors, Marc
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Krickbaum and April Perry, and signed by me and the defendant
on November 2nd.
And the stipulation reads as follows: "The parties
agree that the defendant was not prohibited by the 2004
Consent Order from expressing his views and opinions in
infomercials, as long as those views and opinions did not
misrepresent the contents of his book."
So stipulated?
MS. PERRY: So stipulated.
BY MR. KIRSCH:
Q. All right, Agent Carrier -- or Inspector Carrier -- I'd
like you to now go to Page 11 of the chart.
And do you see on Page 11 of the chart we talked
about the government's allegation that, "The protocol does not
require exercise," misrepresented the content of the book?
Do you recall that?
A. Yes.
Q. All right.
And do you recall that I asked you yesterday that
exercise was suggested in Phases 1 and 4 of the book?
Do you recall that?
A. Yes.
Q. And we talked about 1 and 4 was -- were -- suggestions or
requirements, but not mandatory, right?
A. They were required.
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Q. 1 and 4 are -- Phase 1 and 4 are -- required?
A. Yes. In the summary, it is required.
Q. All right.
We might be speaking past each other.
Phase 1 is not a required part of the Simeons
protocol, right?
A. It's strongly recommended, if you want to keep the weight
off.
Q. Right.
Well, but I thought you testified yesterday that
Phase 1 was not a required part of the protocol.
Do you recall that testimony?
A. It's not mandatory, but it's strongly suggested you do it.
Q. All right.
So, the answer to my question is, "Yes," then, right?
It's not required?
A. Yes.
Q. Okay.
And Phase 4 contains suggestions that are not
required, right?
A. If you want to keep the weight off, they are required.
Q. All right.
But do you remember my question yesterday when I
asked you is Phase 4 required, and you testified that, no, it
was not required?
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A. In the summary, it is required.
Q. All right.
But I'm asking you if you remember my question of you
yesterday afternoon when I asked if Phase 4 was required and
you said it was not required?
A. In one part of the book it's stated that it's not -- you
have to do it the rest of your life if you want to keep the
weight off.
Q. Are you changing your testimony from yesterday afternoon
or do you stand by that testimony?
A. I'd have to look at exactly what I stated.
Q. Okay. I'm going to show you that.
A. Okay.
Q. But your testimony today is Phase 4 is only -- is required
if you want to keep the weight off, right?
A. Forever, yes.
Q. And if that differs from your testimony yesterday, which
testimony are you going to stand by: The testimony yesterday
or the testimony today?
A. There is one part of the book where it states it does --
the word, it's "required" or "mandatory" is not stated. It's
a phase of the diet that he recommends. It's not mandatory in
one part of the book, but in another part of the book it is.
He states there is a list of things you must do if
you want to keep the weight off.
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Q. All right.
There's a list of things that you must do if you
decide -- well, I guess -- I'll just -- I'll get your
testimony from yesterday.
A. Okay.
Q. But I asked you overnight -- do you remember we were
talking about exercise and I asked you if exercise was
required in Phases 2 and 3 of the diet. And you said you
didn't know and you were going to look at it last night to see
if it was required?
A. I looked at the book, yes.
Q. Did you look at the book last night?
A. Yes, I did.
Q. All right.
Is exercise required in Phase 2 or 3 of the diet?
A. In one part of the book, it says, "Exercise is
encouraged." In another part of the book, it says, "It's
highly suggested."
In Phase 3, it states that, "It's highly
recommended." In another part of the book, it states, "You
must do exercise."
It's on the list of "You Must Do."
Q. All right.
So, the answer to my question, "Is exercise required
in Phases 2 or 3 of the protocol," the answer to that question
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is "No," right?
A. It varies throughout the book.
Q. All right.
There's somewhere in the book that indicates exercise
is required under Phase 2?
A. It states, "It's highly recommended" --
Q. Okay.
A. -- or "highly suggested -- "
Q. Does that mean --
A. " -- to walk."
Q. Does that mean the same thing as "required"?
A. It's two different words.
Q. Okay.
Do they mean the same thing to you?
A. I guess it depends on who is reading it.
Q. I'm asking you: Does "suggested" and "required" mean the
same thing to you, Inspector Carrier?
A. No. He's highly recom- -- he's highly recommending.
Q. Okay.
In Phase 3, is exercise required anywhere in the book
in Phase 3?
A. In the summary, "You Must Walk in Phase 3."
Q. All right.
But it's not in the chapter that describes Phase 3 in
the Simeons protocol, it doesn't say that exercise is
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required, right?
A. Earlier in the book, it says, "He highly recommends."
Q. All right.
I'd like to show you what you're describing earlier
in the book. I will just show it to you. I'm not trying to
trick you.
MR. KIRSCH: DJ, can you pull up Page 76?
BY MR. KIRSCH:
Q. Now, first of all, so we're all on the same place, this is
Phase 1, right?
A. Yes.
Q. Which is "Highly Recommended, But Not Required," right?
A. Correct.
Q. All right.
And I think in your direct examination --
MR. KIRSCH: DJ, will you pull up that Paragraph 2?
BY MR. KIRSCH:
Q. -- it describes "Walk."
Do you see that?
A. Yes.
Q. And I think you pointed out to the jury during your direct
examination that you -- if you were going to partake in any
part of, I guess -- well, if you were going do the walking
part of Phase 1, it was recommended that you walk outside for
one hour per day?
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Do you recall that?
A. Yes.
Q. All right.
I'd now like to go to Page 77, which is the rest of
that paragraph which you didn't show the jury during your
direct examination.
MS. PERRY: Objection, Judge. That actually
misstates what happened.
MR. KIRSCH: Okay.
THE COURT: Wait.
MR. KIRSCH: I will ask another question, your Honor.
THE COURT: Yes, just ask questions. Do not make
comments about what the other attorney did.
MR. KIRSCH: I'll ask.
BY MR. KIRSCH:
Q. Do you recall showing the jury these pages -- or, I'm
sorry, this paragraph -- of the "Walk" paragraph during your
direct examination?
A. No, I do not.
Q. All right.
You didn't show the jury this part, did you?
MS. PERRY: Objection, Judge.
May I be heard at sidebar?
MR. KIRSCH: Your Honor, she just --
THE COURT: I will sustain the objection. I do not
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believe --
MR. KIRSCH: Pardon me?
THE COURT: I will sustain the objection. The
witness doesn't show anything to the jury.
I think, your Honor, I will ask the question, again.
BY MR. KIRSCH:
Q. Were you shown this portion of Page 77 during your direct
examination and asked to read from it?
A. I believe I read one sentence, but I did not read the
whole section.
Q. All right.
Do you remember which sentence you read?
A. "Walk for one hour nonstop."
Q. Pardon?
A. "Walk for one hour nonstop."
Q. Okay.
Can you read -- can you start up at the first
complete sentence and read -- that first sentence to the jury?
A. "Of all the steps in Phase 1, this may be the most
difficult one to do on a daily basis. However, this will have
the most profound long-term effects. Walking should be done
outside. Use a treadmill only as a last resort. Walk for one
hour nonstop. Keep the pace steady and do not overexert
yourself. Slow, rhythmic movement is the key. You should be
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able to maintain a conversation while walking. Getting your
heart rate up to a level of aerobics should not be done during
your walking. Ideally, this should be done every day.
"If this is not achievable, any amount of walking
will still have a dramatic effect on resetting your body's set
point and making you lean."
Q. All right.
Now, I'm done with Pages 11 and 12 of the chart; but,
before I leave this area of the testimony, I want to ask you
if you recall the following question and answer from
yesterday.
Question: "All right. And Phases 1 and 4 were not
required; is that right?"
Answer: "Recommended."
Do you remember that question and answer from
yesterday?
A. Yes.
Q. All right.
And, then, the next question: Question: "They were
recommended, but they weren't required, right?"
Answer: "Correct."
A. Like I said, in one part of the book it states --
Q. Wait.
Do you remember that question and answer?
A. Yes.
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Q. All right.
Do you stand by your testimony yesterday or are you
changing your testimony from yesterday?
MS. PERRY: Objection, Judge. It misstates the
impeachment or lack thereof.
THE COURT: I will sustain the objection.
BY MR. KIRSCH:
Q. Do you recall giving that question and answer yesterday?
A. Yes.
Q. All right.
If I asked you the same exact question today, "They
were recommended, but they weren't required, right," would
your answer be the same answer as you gave yesterday?
A. Yes, but there's two different things stated in the book
and that's what I was trying to explain.
Q. So, the word -- when you answered the question yesterday
"correct," you were trying to explain?
A. You were asking me about one part of the book.
Q. No. I think I asked you, regarding Phase 1 and Phase 4,
"They were recommended, but they weren't required, right," and
you answered, "Correct;" do you recall that?
A. Yes.
Q. Okay.
So, now I'd like to go on to Page 13 of Defendant's
Exhibit 2 and pick up where we left off yesterday.
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And here -- do you have the exhibit in front of you?
A. Yes.
Q. Okay.
Do you see there the alleged misstatement, "The
protocol is simple"?
Do you see that on the left-hand column?
A. On which page?
Q. On Page 13?
A. Okay.
Yes.
Q. And, then, do you see the middle column, which are the
government's allegations regarding the infomercials:
"Simplest," "It's simple," "It's simple"? Do you see that?
A. Yes.
Q. Now, I'd like to show you some passages from the book,
which are contained in the third column.
MR. KIRSCH: DJ, could you pull up the inside front
cover of the book?
BY MR. KIRSCH:
Q. Agent Carrier, can you read the first two sentences of the
inside jacket of the book?
A. "An absolute cure for obesity was discovered almost 50
years ago by a British medical doctor. Tens of thousands of
people used this simple, inexpensive, safe medical treatment
and achieved miraculous, fast and permanent weight loss."
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Q. All right.
And you see the word "Simple" there, right?
A. Yes.
Q. Let's go to Page 2.
And, by the way, Agent Carrier, he is showing you the
book on the screen. You can look at it on the char or you can
look at it on the screen.
A. Thank you.
Q. Okay.
The middle of Page 2, in the second paragraph, do you
see there where it begins, "Most importantly"?
A. Yes.
Q. All right.
Can you read that sentence?
A. "Most importantly, you will learn the simple protocol that
you can easily do, that will cure the basic underlying cause
that makes us fat. There is absolutely not even one weight
loss diet, program, system, pill, or anything else that
addresses the true cause as to why we are fat. Even the
government admits that nothing works for permanent weight and
fat loss."
Q. All right.
Page 7, in the middle of the first paragraph there's
a sentence that begins, "There has never."
Can you just read that sentence?
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A. "There has never been a weight loss treatment that is so
easy and works so well."
Q. Page 92.
Do you see the second paragraph on Page 92?
A. Yes.
A. "Many of the above items are very easy to do. Drinking
water, eating apples and grapefruits, eating breakfast,
drinking Eleotin, drinking Yerba Mate, Wu Long and Chamomile
tea, taking coral calcium, adding hot peppers and cinnamon and
eating a big salad with lunch and dinner are all very easy to
do. Avoiding the forbidden ingredients, such as artificial
sweeteners, high fructose corn syrup and MSG is also easy to
do. Simply shop at a market such as Whole Foods, Trader Joe's
or Wild Oats and read the ingredient list on the label."
Q. All right.
Now, let's go to Page 105, please. And the last
sentence -- the last full sentence -- of the page, could you
read that, please?
A. "Phase 4 is the rest of your life. This phase will
consist of some basic and easy to follow dos and don'ts, that
will become your new, exciting habits."
Q. Okay.
Let's go to Page 111.
Do you see in the middle of that page, there's a
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sentence that begins, "This list may seem." Do you see that?
A. Yes.
Q. All right.
Will you read that first sentence, please -- first
two sentences, actually?
A. "This list may seem overwhelming and difficult to
implement in real life. I can tell you it is relatively
easy."
Q. Now, going to Page 113, in the first paragraph -- I'm
sorry, the end of the second paragraph -- can you read the
last -- the sentence there that begins "I, like every other
patient"? Do you see that sentence?
A. Yes.
Q. Can you read that one sentence?
A. "I, like every other patient I talk to, found this
approach to obesity very easy to do. I only wish I had done
it a year earlier. I encourage you to do this protocol
exactly as Simeons outlined it."
Q. Okay.
Page 114, the very end of the first full paragraph,
can you read that, please?
A. "Will you be the next success story who says, 'The Simeons
Weight Loss Cure protocol absolutely 100 percent works? It's
easy and safe. I should know because I used it myself."
Q. Now, let's jump ahead a little bit to Page 131.
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Do you see there in the middle paragraph on Page 131
at the very -- the very -- last sentence that says, "Like the
hundreds of thousands"? Can you read that, please?
A. "Like the hundreds of thousands of other people who have
gone through this protocol, you will find the process
enjoyable and relatively easy."
Q. All right.
Page 160. Will you go there, please, and will you
read that last full paragraph on Page 160?
A. "Now, let's fully address in full detail compulsive
overeating, food cravings, emotional eating and uncontrollable
urges to eat, even when you are not hungry. The solutions to
these torturous debilitating issues are simple, easy and
miraculous in their effectiveness."
Q. All right.
And do you see the word "Simple" there?
A. Yes.
Q. On Page 161, the very next page, do you see the third
paragraph begins, "It appears"?
A. Yes.
Q. Will you please read that?
A. "It appears that the causes of these conditions are now
known. There is a way out and there is a cure. To go into
great detail about the causes of these conditions would take
hundreds of pages. My intent is to cut to the chase and give
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you the bottom line causes and the simple, easy-to-follow
methods that cure this disorder."
Q. Again, the word "simple" appears in that paragraph,
correct?
A. Yes.
Q. Okay.
Let's jump ahead now to Page 179. Do you see that
first paragraph there under Point No. 2?
A. Yes.
Q. Will you please read that?
A. "The Weight Loss Cure protocol is the fastest, easiest and
most effective way to lose weight, and lose stubborn secure
problem area fat and keep the weight off forever."
Q. All right.
Now, I'd like to just go back to Page 177 very
quickly so everybody knows what we're talking about here.
If you go to Page 177, do you see this is the title
of Chapter Eight (indicating)?
A. Yes.
Q. And it's entitled, "The Proof Revealed," right?
A. Yes.
Q. And, then, if we go to Page 179, do you see there in the
middle it says, "Let's read what people like you have said
about The Weight Loss Cure protocol. These people are real
and have not been compensated in any way. These comments have
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been written in their own words."
Do you see that?
A. Yes.
Q. Okay.
Let's go through a couple of those.
On Page 186, do you see down there, there's a
testimonial that begins on Page 186, "I am very interested in
anything concerning HCG"?
Do you see that?
A. I -- I -- see the paragraph highlighted.
MR. KIRSCH: Move the bubble. Take the bubble off.
Okay.
BY MR. KIRSCH:
Q. Do you see down on the bottom of the screen the testimony
that begins, "I am very interested"?
A. Yes.
Q. All right.
Now, can you read that last paragraph of that
testimonial?
A. "I remain more or less one year on the same weight, then
start gaining weight, again, a few kilos, and then on my own
do the same diet again to lose about three quarters kilos,
which I cannot lose with any diet. It's easy and I feel great
during the diet, injecting myself every day."
Q. Okay.
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Let's go to Page 189 and look at another testimonial.
In this one, I'm going to show you the testimonial of
a person of the initials "GM."
Do you see that in the middle of the page?
A. Yes.
Q. All right.
Can you read the sentence that begins, "Even at 500
calories"?
A. "Even at 500 calories a day, this was the easiest I ever
followed."
Q. Go ahead. You can read the next sentence.
A. "After the first week, I even found myself offering to
share my half cup of strawberries with my husband one night
after dinner."
Q. All right.
Page 193, the testimonial -- it is the second to last
on that page -- that says, "I have used this program."
Do you see that?
A. Yes.
A. "I have used this program very successfully for weight
loss, that it's so easy and it makes you feel great. It
lowers cholesterol and blood sugar."
Q. All right.
So, that takes us through the next alleged
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misrepresentation on your chart, Government Exhibit 19. So,
I'd now like to go to Page 16 of my chart.
And you see here the next alleged misrepresentation
by the government is that, "The protocol is inexpensive."
Do you see that?
A. Yes.
Q. And, then, on your Chart 19, you list a couple of
statements from the infomercial that it's, "Very inexpensive
to do," and "It's inexpensive," right?
A. Yes.
Q. Now, I want to go through the text of the book and see if
that appears anywhere in the book.
So, let's start, again, from the very inside front
book jacket.
In the first paragraph -- you've read this several
times -- you start with the second sentence. You don't have
to read the first sentence, again.
A. "Tens of thousands of people used this simple,
inexpensive, safe medical treatment and achieved miraculous,
fast and permanent weight loss."
Q. Now, in the introduction at the very beginning of the
book, which is page "x" and, then, a little "i" -- so, I
guess, that's 11 in Roman numerals -- the second paragraph
begins, "The methods."
Do you see that?
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A. Yes.
Q. Will you read the first two sentences there, please?
A. "The methods of curing the condition of obesity without
expensive drugs and surgery in a totally safe manner are also
being debunked and discredited. These inexpensive, effective
and safe methods of losing weight and keeping the weight off
forever are being hidden from the public."
Q. All right.
Go to Page 67, please. I only included one more
example on this chart.
On Page 67, the middle of the last paragraph, do you
see there the paragraph begins, "Another major," and, then, in
the middle of the paragraph there's a sentence that begins,
"The drug"?
A. Yes.
Q. Can you read that, up through the where it says, "To the
drug companies, this is a war"?
A. "The drug companies are currently making billions in
profits on these insane surgical procedures. The drug
companies never want a non-patentable, inexpensive cure widely
used or accepted. If an inexpensive natural cure for obesity
was available and used by the masses, these drug companies
stand to lose billions of dollars in profits every year. To
the drug companies, this is a war."
Q. Okay.
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So, that takes us through that alleged misstatement
where I provided you a couple of examples in Defendant's
Exhibit 2 in my chart.
And I'd like to go to the next one, Page 17.
You just tell me when you're there.
A. Okay.
Q. Okay.
Do you see there that the alleged misstatement is,
"The protocol causes no hunger"?
A. Yes.
Q. And, then, you have statements from the infomercial
regarding, "Trudeau saying no hunger or 'You're not hungry' or
'He was not hungry,'" do you see that?
And it actually goes from Pages -- the statements
from the infomercial go on Page 17; and, then, they continue
on Page 18.
Do you see that?
A. Yes.
Q. All right.
So, I have some examples from the book that I'd like
you to take a look at, starting with Page 6.
So, on Page 6, in the middle of the first paragraph,
there's a line -- well, there's a sentence -- that begins,
"Then," but the line begins, "Almost miraculously."
Do you see that?
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A. Yes.
Q. Will you just read those two lines there?
A. "Almost miraculously, hunger is virtually non-existent.
This made staying on the protocol very easy and pleasant."
Q. Okay.
Then on Page 6 -- still on Page 6 -- down at the
bottom of the page, it's a long paragraph on Page 6; and,
then, down at the bottom of the page, it begins a new
paragraph. Do you see that?
A. Yes.
Q. All right.
Will you read the first -- just the first -- two
sentences of that paragraph?
A. "This weight loss approach is quite different than
anything else in the treatment of obesity. There are no
hunger and food cravings. You have increased energy."
Q. Let's go on to Page 7.
In the first paragraph on Page 7 -- will you read
that first paragraph on Page 7, up to the word "Protocol"?
A. "Your body is completely reshaped, as if you got
liposuction. Your success in reducing inches and fat,
combined with no hunger, no cravings, no feelings of
deprivation, and no depression keep you motivated to stay on
the protocol."
Q. All right.
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Now, do you see in your chart some of the -- the
alleged misstatement is that "The protocol causes no hunger
and there is no deprivation"?
Do you see that?
A. Yes.
Q. So, it's alleged that Trudeau said that during the
infomercial, right?
A. Yes.
Q. And do you see -- I'm just going to show you an example on
Page 7 where you just read, do you see -- where he also says
in the book, "There's no hunger and no feelings of
deprivation"?
Do you see that right in the book?
A. Yes.
Q. Now, Page 12.
And I want to call your attention to the middle of
the paragraph -- the middle of the first paragraph -- which
begins, "During the treatment," and goes through, "Will not
feel deprived."
Will you please read that?
A. "During the treatment, which lasts between three and six
weeks, a person will lose about a pound a day. You will have
no hunger and your energy levels will be high. You will have
no food cravings and you will not feel deprived. You will not
need willpower."
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Q. All right.
Page 14, will you please read from the beginning of
the first full paragraph on that page, the first sentence?
A. "The comments from the patients in these records
repeatedly stated that they were not hungry at all, had tons
of energy and were overwhelmingly excited about the results."
Q. Okay.
Now, going onto the very next page, Page 15, do you
see that near the beginning of the first paragraph up at the
top it says, "The thoughts"?
Do you see that?
A. Yes.
Q. Will you read that one sentence there?
A. "The thoughts of what my life was going to be like as a
thin person, with a normal hunger and appetite, without any
crazy food cravings and never having to deal with willpower,
deprivation or feeling hungry, was so exciting I could barely
stand it."
Q. All right.
And do you see there, again, the "Deprivation or
feeling hungry," do you see the references to those things?
A. Yes.
Q. All right.
Now, what we've read -- we're looking at my chart,
Defendant's Exhibit 2, Page 17, the first -- the whole page
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there -- we've read a series of quotes from Chapter 1, right,
of the book?
A. Yes.
Q. Did you read any of Chapter 1 yesterday during your direct
examination to the jury?
A. No, I did not.
Q. Okay.
Let's go on to Page 18.
And the bottom of Page -- I'm sorry, Page 15.
Page 18 of my chart, Page 15 of the book.
So, down at the bottom, it says, "Here are my
personal results."
Do you see that?
A. Yes.
Q. All right.
Will you read that to the end of the sentence says,
"No hunger at all"?
A. "Here are my personal results. Before I started the
protocol, I weighed 231 pounds, with a 42-inch waist. Five
weeks later, I weighed 195 pounds, with a 34-inch waist. I
did no exercise at all during the protocol. I was slightly
hungry for the first two days, but then I had virtually little
or no hunger at all."
Q. By the way, when you showed the infomercials to the
jury -- the first official that you showed -- did you see
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Trudeau holding up two pictures of himself in the
infomercials?
A. Yes.
Q. Did he appear to look slimmer in one of the pictures
versus the other?
A. Yes.
Q. I want to go now to Page 16.
And do you see there at the beginning of the -- up at
the top of the -- page beginning with, "The protocol was
everything that I hoped"?
Do you see that?
A. Yes.
Q. That's one long sentence, but will you read that one long
sentence?
A. "The protocol was everything that I hoped it would be. No
hunger, no food cravings, no grumpiness, no feeling of
deprivation, no fatigue, a dramatic loss in not only weight
but fat. Most importantly, a dramatic reshaping of the body,
with the burning of the secure problem area fat deposits."
Q. All right.
And, then, on Page 29 -- and I would like to go to
Page 29.
And it goes -- the sentence goes -- over on the top
of Page 30, but can you read that last sentence on the bottom
of Page 29, which then continues over to Page 30?
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A. "And you will no longer have intense and constant hunger.
You will automatically and effortlessly be eating normal
quantities of food without ever feeling hungry or deprived."
Q. All right.
Let's jump ahead to Page 52.
In the middle of the second paragraph, there are two
sentences beginning with, "The medical treatment." Will you
read those two sentences, please?
A. "The medical treatment of this condition was a small
amount of HCG. The observations were that these patients
would immediately lose their ravenous appetite. Surprisingly,
they neither gained nor lost any weight."
Q. All right.
Page 53, do you see at the top of the page there,
there's a sentence that begins, "There was no hunger or
feeling"? Will you read that?
A. "People's bodies were being completely reshaped. There
was no hunger or feeling of deprivation during the treatment.
No exercise was required."
Q. Page 72 -- can you take a look at Page 72?
And the last paragraph there on that page, will you
read the first sentence that says, "Get ready to start"?
A. "Get ready to start a whole new life without deprivation,
hunger or frustration."
Q. All right.
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Do you see now we've gone through Page 72 of the
book. Page 73 --
MR. KIRSCH: Will you show her Page 73, DJ, on the
chart, please, on the screen?
BY MR. KIRSCH:
Q. Page 73, which is the very next page, is the start of
Chapter 5. Do you see that?
A. Yes.
Q. So, we've now read through Chapters 1, 2, 3 and 4, and the
introduction and the book jacket, right?
A. Yes.
Q. All right.
Did you read anything from the book jacket or
Paragraphs 1, 2, 3 or 4 during your direct examination?
A. No.
Q. I'd now like to go to Chapter 5.
And Page 19 of my chart, Page 75 of the book, I'd
like you to take a look at the end of the second paragraph
under Phase 2. And there's a sentence that says, "You will be
losing."
Do you see that?
A. Yes.
Q. Will you read that sentence -- or the rest of that
paragraph?
A. "You will be losing the secured abnormal fat reserves.
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You should notice a dramatic reshaping and re-sculpting of
your body. Energy levels will be high, hunger and appetite
low, and many people see an improvement of other medical
conditions and symptoms."
Q. Page 98, please -- jumping ahead to Page 98.
In the middle of the third paragraph, do you see the
sentence that says, "Those who did the diet -- " I'm sorry,
"Those who do the diet."
Do you see that sentence?
A. Yes.
A. "Those who do the diet with the HCG injections lost more
weight than the other group, had no hunger or fatigue, and
lost fat in the problem areas."
Q. All right.
And in the middle of -- I'm sorry, Page 5, let's go
to the middle of -- Page 5.
I'm sorry, Page 105, not Page 5.
Page 105, the middle of the first paragraph, do you
see that sentence that says, "Your hunger and food cravings
will be low"?
A. Yes.
MR. KIRSCH: I think you're looking at Page 5. I'm
on Page 105.
BY MR. KIRSCH:
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Q. That's the middle of the first paragraph. Do you see
that?
You don't have to read it. You get a break because I
just read it.
(Laughter.)
MR. KIRSCH: Can you pull it up, DJ, or not?
(Brief pause.)
BY MR. KIRSCH:
Q. Okay.
Do you see that on the screen?
A. Yes.
Q. All right.
Now, still on Page 105, near the beginning of the
second paragraph, it's the third sentence that begins, "Your
hunger."
Do you see that?
A. Yes.
Q. Will you read that, please?
A. "Your hunger will be normalized and will no longer be
intense and constant. You will eat normal, small amounts of
food and be perfectly satisfied and full."
Q. All right.
Go to Page 20 of my chart. I have two more examples
with respect to this alleged misrepresentation.
Page 113, the second paragraph, do you see that?
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A. Yes.
Q. Can you read that paragraph, please?
A. "When I first learned of the Simeons 'weight loss cure
protocol,' I thought it was very strict and would be very hard
to follow. I was fearful that I would have to use superhuman
willpower to stay on the protocol. I believed I would be
hungry, tired, grumpy and feeling deprived throughout the
course of treatment. I believed I would be giving up all the
pleasures of eating. This fear made me come up with the
excuse to delay starting The Weight Loss Cure protocol. It
took over one year before I actually got started. I can tell
you all of my fears and apprehension was totally unjustified.
I was never hungry, I had tons of energy, my disposition was
bright and pleasant. I did not have to use any willpower and
my motivation to stick with the protocol was very high. I,
like every other patient I talked to, found this approach to
obesity very easy to do. I only wish I had done it a year
earlier. I encourage you to do this protocol exactly as
Simeons outlined it."
Q. All right.
Now, there are a lot of references to "I" in that
paragraph. Do you see that?
A. Yes.
Q. And it says, "I, like every other person or every other
patient I talked to found the approach to obesity very easy to
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do."
Do you see that, for instance?
A. Yes.
Q. All right.
The word "I" is referring to Trudeau, correct?
A. Yes.
Q. In that paragraph, he's describing his experience and that
he found it easy to do, right?
A. Yes.
Q. Okay. All right.
Page 189, I want to just show you one testimonial.
I will go to the testimonial of a person with "JM,"
again.
You read this just a few minutes ago, so I'm not
going to ask you to read it, again. But do you see it on the
screen there (indicating)?
A. Yes.
Q. And do you see the references there to, "I never felt
hungry or deprived"?
Do you see that?
A. Yes.
Q. All right.
We can go on to the next page of the chart, which is
Page 21 on my chart, Defendant's Exhibit 2.
And I want to talk to you a little bit about HCG.
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Do you have my chart there in front of you --
A. Yes, I do.
Q. -- Defendant's Exhibit 2 on Page 21?
Okay. So, on your chart, on Government Exhibit 19 --
MR. KIRSCH: DJ, can I have the Elmo on, please?
Or, your Honor, do you control it?
To go to the Elmo --
THE COURT: Do you want to go to the Elmo --
MR. KIRSCH: Yes.
THE COURT: -- for a source?
THE COURT: Sure.
BY MR. KIRSCH:
Q. Do you see there on your chart -- let me just show you the
first page, so you can see what we're talking about here.
Do you see on the first page of your chart the column
says, "Representation" and, then, it says, "Examples," right?
A. Yes.
Q. All right.
So, it would be accurate if I just wrote,
"Representation" there (indicating) and, then, "Examples" over
here (indicating), right?
Do you see that?
A. Yes.
Q. All right.
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So, your representation is HCG; and, then, your
examples are the statements from the infomercial that I've put
here (indicating), right?
A. Yes.
Q. All right.
Now, I first want to call your attention to two of
these examples.
Do you see here (indicating) in the second example,
"Trudeau says in the infomercial that he calls it an
all-natural miracle substance"?
A. Yes.
Q. And, then, in the fourth example -- so, out of the two of
the four examples -- he says, "what I call a miracle, magical
substance."
Do you see that?
A. Yes.
Q. So, he's telling the listener that's what he refers to or
he calls this, correct?
A. Yes.
Q. All right.
MR. KIRSCH: Can I go back to the computer, your
Honor, as the source?
BY MR. KIRSCH:
Q. And I'm going to start at Page 118 of the book, which is
on my Chart 21.
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With respect to HCG and its references in the book,
can you read that question and answer, please?
A. "What if I cannot get HCG and cannot do Phase 2?"
Answer: "If HCG is completely unavailable to you,
there is an option. First, do all the steps in Phase 1 for 30
days. Then you replace Phase 2 with The Turbo Protein Diet as
described in the book written by Dieter Markert. This
protocol uses a product called Almased, available at
800-256-2733 or www.almased.com. Do this protocol for up to
six weeks. Then continue with Phase 3 and Phase 4 exactly as
described. This protocol is not as effective as the Simeons
'weight loss cure protocol' with HCG. However, it is the next
best alternative."
Q. All right.
So, if you can't get HCG, can you still do the weight
loss protocol?
A. According to this, you can.
MS. PERRY: Objection. It calls for an opinion.
MR. KIRSCH: Your Honor, I can restate the question.
BY MR. KIRSCH:
Q. If you can't get HCG, does the book indicate that you can
still do the protocol?
A. It does right here (indicating), yes.
Q. All right.
Now, it refers to a product called Almased. Do you
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see that?
A. Yes.
Q. And, then, it gives a phone number?
A. Yes.
Q. All right.
Did you call that number?
A. No, I did not.
Q. All right.
You're the case agent on this case, right?
A. Yes.
Q. Pardon?
A. Yes.
Q. And did you look up that Web site?
A. No, I did not.
Q. I want to go to Page 219.
MR. KIRSCH: DJ, first go to Page 217, please.
BY MR. KIRSCH:
Q. That will give you some point of reference, Inspector
Carrier.
Page 217, we're back at the back of the book, Chapter
9, which is the: Putting It All Together: The Summary and
Conclusions Chapter," and we're talking about Phase 2.
MR. KIRSCH: So, go ahead to Page 219 now, DJ.
BY MR. KIRSCH:
Q. And can you read the last paragraph, Inspector Carrier?
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A. "If you cannot or do not want to do the HCG and 500
calorie diet Simeons protocol, replace that protocol with the
Turbo Protein Diet, as explained in the book by Dieter
Markert, available at www.almased.com. The Turbo Protein Diet
will be your Phase 2."
Q. Do you know what the Turbo Protein Diet is?
A. No, I don't.
Q. All right.
Did you ever look at the book called "Dieter Market"?
A. No.
Q. By the way, I can't -- as I -- I just want to show you
Page 245.
MR. KIRSCH: DJ, can you go to Page 245, please?
(Brief pause.)
MR. KIRSCH: No, 245.
BY MR. KIRSCH:
Q. Okay. Take a look real quickly at Page 245.
Do you have the book in front of you there?
A. Yes, I do.
Q. All right.
What is contained on Page 245?
A. References.
Q. What about Page 246?
A. More references.
Q. 247?
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A. More references.
Q. 248?
A. References.
Q. 249?
A. References.
Q. 250?
A. References.
Q. 251?
A. References.
Q. 252?
A. References.
Q. 253?
A. References.
Q. 254?
A. References.
Q. 255?
A. References.
Q. All right.
So, from Page 245 to 255, eleven pages of references
in this book, correct?
A. Yes.
Q. Before testifying today, did you look at any one of these
references?
A. No, I did not.
Q. I want to now go to Page 146.
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MR. KIRSCH: Can you go back to 146, DJ?
BY MR. KIRSCH:
Q. And in the middle of the page, near the -- if you're
looking at the page in the book, do you see the question is:
"Can I do Phase 1 for longer than 30 days?"
Do you see that?
A. Yes.
Q. And, then, I want you to read part of the answer.
Do you see in the answer, the answer says, "In fact."
I'm sorry, "In actual fact."
Can you read that through the reference to "HCG
protocol"?
A. "In actual fact, if you were to do all the steps in Phase
1 with strict adherence for 90 to 120 days in a row, you would
actually begin to reset the body's weight set point and
correct the abnormal hypothalamus condition. Weight loss
would be slow, but you would, in fact, be releasing abnormal
secure fat deposits. This is another alternative for those
who do not want or are unable to do the HCG protocol."
Q. All right.
I'd now like to go to Page 116 in the book.
And there's a question at the top of the page that
says, "Where do I get HCG?"
Do you see that?
A. Yes.
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Q. And I think, Inspector Carrier, I think you read this to
the jury yesterday. I think you read this page to the jury.
A. Yes.
Q. Is that your recollection, as well?
A. Yes.
Q. All right.
So, I'm not going to ask you to read it, again. I
just want to point out a few things to you.
Do you see the first line in that answer says, "HCG
is a natural substance that is produced in the human body
during pregnancy"?
A. Yes.
Q. All right.
And do you see on Page 21 of my chart the references
to the statements in the infomercial.
And the first two statements call it an "all-natural
substance," "all-natural substance;" and then, the third one,
again, calls it an "all-natural substance."
Do you see that?
A. Yes.
Q. All right.
Let's go ahead to Page 120, please.
All right. Do you see the bottom of Page 20 -- of
Page 120 -- where it begins, "It is true"?
A. Yes.
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Q. Do you see that?
A. Yes.
Q. All right.
I think you read that to the jury yesterday, so we
don't have to read it, again. But do you see it's on my chart
on Page 22?
A. Yes.
Q. Now, let's go to Page 116.
Do you see that?
A. Yes.
Q. All right.
And in the middle, towards the end of that answer
that we were just looking at, I just want to show you one
sentence.
Do you see the sentence where it says -- or the
phrase -- "People around the world have easy access to HCG
under the supervision of a medical doctor."
Do you see that?
A. Yes.
Q. And do you see that also on Page 22 of my chart?
A. Yes.
Q. All right.
Let's go to Page 122.
First, let's take a look at Page 121. I want to show
you the question. We're in the "Frequently Asked Questions"
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chapter of the book, right?
A. Yes.
Q. And the question is: "Are there doctors and clinics using
this treatment now?"
Do you see that?
A. Yes.
Q. On Page 122, can you read, starting with, "One fearless
doctor down through 6500 patients to date"?
A. "One fearless doctor using this method is Dr. Daniel
Belluscio, M.D. For most of Dr. Belluscio's medical career,
he has been devoted to the study of HCG and the Simeons method
for weight loss. He spent many years at the Bellevue Klinik
in Switzerland, an institution with one of the most impressive
records of using HCG in the treatment of obesity. He has
traveled extensively, lecturing on HCG and obesity in the USA,
Sweden, Italy, Germany and Israel. He has published several
reports on the method for healthcare practitioners, and
articles on the subject for the general public.
"In 1987, Dr. Belluscio founded the HCG Research
Clinic, an institution for obesity research. Records show
that the clinic has used the HCG approach on over 6,500
patients to date."
Q. All right.
Now, I'd like you to quickly jump to Page 252.
MR. KIRSCH: Can you could that, DJ, in the
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"References" section of the book that we just looked at?
BY MR. KIRSCH:
Q. And up at the top, there's a reference to Dr. Belluscio.
Do you see that?
A. Yes.
Q. And do you see the sentence there that says, "His clinic
can be found at "www.hCGobesity.org"?
A. Yes.
Q. Did you look up that Web site?
A. I might have. I don't recall.
Q. Do you recall what was on it?
A. I don't -- I don't -- think I did, no.
Q. Okay.
All right. Just so I'm complete on this, I showed
you the references starting on Page 245, but I'd like you to
take a look at the book and go back to Page 231, which is the
full appendix. And I'd just like to show you that.
Do you see the first on Page 231 contains
"Recommended Books"?
A. Yes.
Q. And, then, it contains a list of books that Trudeau
recommends to the reader.
Do you see that?
A. Yes.
Q. And, then, Page 232, more recommended books.
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Do you see that?
A. Yes.
Q. 233, more of the same?
A. Yes.
Q. 245 -- I'm sorry, 234 -- more books?
A. Yes.
Q. 235, more books?
A. Yes.
Q. 236, more books?
A. Yes.
Q. And in -- some of these books have to do with things that
we're directly talking about.
Like, for instance, if you look at the first bullet
point on 236, do you see that: "In bad taste, the MSG Symptom
Complex by George R. Schwartz, M.D."
Do you see that?
A. Yes.
Q. Do you recall the expert witness earlier today talking
about MSG?
A. Yes.
Q. And Page 237, do you see that, "More Books"?
A. Yes.
Q. 238?
A. Yes.
Q. 239?
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A. Yes.
Q. And these books have to do with all sorts of topics,
right, and Trudeau categorizes them --
A. Yes.
Q. -- his attempts to?
A. Right.
Q. 240?
A. Yes.
Q. 241?
A. Yes.
Q. 242, he includes recommended DVDs and films.
Do you see that?
A. Yes.
Q. And, then, he also includes articles and scientific
studies.
Do you see that?
A. Yes.
Q. All right.
And, then, on Page 243, do you see that?
A. Yes.
Q. All right.
And down at the bottom of 243, some of these that
refer to the use of -- I don't even know how to say that
word -- but that's HCG, right?
A. Yes.
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Q. Do you see that?
A. Towards the bottom, yes.
Q. All right.
And, then, 244 is "Literary References," correct?
A. Yes.
Q. So, it's actually Page 231 of the book through Page 255 of
the book, over 20 pages of references, bibliographies and
sources for the book, correct?
A. Yes.
Q. Now, I want to go back to Page 51 and 52, still talking
about HCG.
I got sidetracked there a little bit with Dr.
Belluscio.
Let's go back to Page 51 and 52.
All right. Do you see down there the last paragraph
on 51 that goes into Page 52?
A. Yes.
Q. All right.
Can you please read that?
A. "Simeons recalled that while traveling in India, he
observed pregnant women giving birth to full-sized,
full-weight healthy babies. This was not unique in itself.
What was interesting was the fact that India was a Third World
country devastated by the war. Food was scarce. People
walked for miles and engaged in huge amounts of physical
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activity. The pregnant women were eating a few hundred
calories a day. They were walking for miles and doing
strenuous physical chores. Two interesting observations were
made: The babies delivered were full-size in weight and
perfectly healthy.
"The second was the women after delivering their
children were skinny. Simeons theorized that these secure fat
reserves were a survival mechanism and, during pregnancy, were
released in order to ensure the health of the unborn baby.
"It was unknown that when a woman became -- " "it was
known that when a woman became pregnant, a hormone-like
substance was created in the body. Where this substance was
created, why it was created and how it was created was a
mystery to the medical profession. The substance is called
human chorionic gonadotropin or HCG."
Q. Okay.
Now, if you go on to Page 24 of my chart and just
tell me when you're there.
I'm not going to show you the first two in the book.
I'm just going to skip to Page 193. We've gone through
several examples.
A. Okay.
Q. All right.
I'm going to go right down to the third bullet point,
which is Page 193, which --
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MR. KIRSCH: Can you show her Page 193, DJ?
BY MR. KIRSCH:
Q. That's the "Testimonial" chapter of the book, correct?
A. Yes.
Q. All right.
Can you look at the testimonial of MC in Colorado?
A. "I used the HCG program in the '80s for weight loss. It
worked like a miracle. I am now -- " "I am now living in
Littleton, Colorado."
Q. Okay.
I want to go on to Page --
THE COURT: Is this a good place to stop?
MR. KIRSCH: Sure.
THE COURT: A good time for our afternoon break?
MR. KIRSCH: Whenever you'd like, your Honor.
THE COURT: Let us do that, then.
We will take our break for the afternoon and return
in 15 or 20 minutes.
(Jury out.)
Do you want to let me in on the nature of the
exhibit?
Is it an exhibit you wanted to introduce?
MR. KRICKBAUM: Yes, Judge. It is a --
THE COURT: Do I have a copy or --
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MR. KRICKBAUM: I have a copy for -- well, you do
have a copy of the -- what it is, is the transcript from the
September 2nd, 2004, hearing in which the Consent Order was
entered.
You have a copy of that transcript, but I have an
additional copy for you of the full transcript and the
excerpts that we seek to admit.
THE COURT: Okay.
(Document tendered to the Court.)
THE COURT: And you have an objection?
MR. KIRSCH: Well, your Honor, I have an objection
only -- they want to include one question and answer from the
transcript, essentially, and it's on Page -- the question and
answer that they want to include is on the very top of Page --
8.
To put that in context under Rule 106, as the Court
indicated at the pretrial hearings, I have no objection to
admitting Pages 1 through 8 of the transcript in the entirety,
to put the question and answer into context. But we can't
just put that one question and answer into evidence. The jury
will have no clue what that means.
So, I have no objection to including Pages 1 through
8. In fact, your Honor, I fought very hard to get this in
evidence and the government objected.
So -- and in response to that, I think the Court said
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correctly, "If the Court were to allow some portion of that
transcript to come into evidence, it would follow the usual
Rules of Evidence that any other portion of the transcript
that might tend to explain or place in proper context the
language that is allowed into evidence, would also be allowed,
that that might include statements by the judge, himself."
And I don't care about Judge Gettleman's statements
coming in. If the question -- if the government is going to
put in the question and answer: "Okay. Obviously, you've had
a personal hand in the provisions of this agreement?"
The Defendant: "Yes."
THE COURT: Okay.
MR. KIRSCH: In order to put that into context, all
of the preceding pages have to come in.
THE COURT: I will read it.
THE COURT: When I come back out, we will make a
determination.
(Brief recess.)
THE COURT: Be seated, please.
Okay. The government's purpose in offering this
question and answer? What do you intend to prove?
MR. KRICKBAUM: Judge, this is to rebut suggestions
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373
that defense counsel made in the opening statement as well as
in his cross of Inspector Carrier that this order is confusing
and lengthy, that it doesn't define its terms, such as what it
means to misrepresent the content of the book. Those were
things that he covered either in opening or the cross or both.
And we would offer this simply to show that the
defendant -- well, what it says, that the defendant had a
personal hand in the provisions of this agreement, and so
cannot now complain that he didn't understand it or that it
doesn't define its terms. That's the point of offering this
admission.
It doesn't go to his overall understanding of any
other parts of the agreement or anything else. It just shows
what it says, which is that he played a role in drafting or in
arriving at the provisions of this agreement. That and
nothing else.
THE COURT: Okay. And your objection?
MR. KIRSCH: Your Honor, my objection is two-fold.
No. 1, I don't think they need it. Trudeau signed
the order. And my argument has not been and it never will be
that the order is confusing. My argument is that the order is
very clear. And it says content of the book, misrepresent the
content of the book, and that's all it says. They have the
evidence that Trudeau signed it.
My concern, your Honor, with just admitting that
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question -- I have no problem with admitting Pages 1 through 7
to put into context Judge Gettleman's question. My concern is
-- and it's highlighted by the fact that you look at the
preceding question that Judge Gettleman asked.
He asked, Mr. Trudeau, why don't you step up, please.
Do you have any questions, concerns, anything unclear to you
about what was just said here? That's at the bottom of
Page 7. Trudeau says, No, everything is very clear.
Then Judge Gettleman says, Okay, obviously you've had
a personal hand in the provisions of this agreement. And
Trudeau says, Yes.
But, your Honor, at the time that Trudeau was asked
those questions by Judge Gettleman, they had been discussing
specific provisions. And that is very clear by Judge
Gettleman's question, Do you have any questions, concerns,
anything unclear to you about what was just said?
To allow the government to put in a question -- or a
statement from Heather Hippsley from Page 2 that says, We're
happy to report today that we have a final order that we've
worked hard to come to an agreement on, and then to skip all
the way ahead to Page 8 to say, Obviously you've had a
personal hand in the provisions of this agreement and the
defendant saying yes, leaves out so much context, including,
your Honor, things along the lines of Heather Hippsley saying
on Page 2, We thought it would be beneficial for both of us
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and for Trudeau to sort of hear an outline of what is required
by the order and a few of the narrow exceptions to the very
broad injunctive provisions.
And then a few lines later Trudeau's lawyer, David
Bradford, says, I was going to talk about the broad exceptions
to the narrow injunction. And then later on --
THE COURT: What does that mean?
MR. KRICKBAUM: I believe that was a joke, your
Honor, I think.
MR. KIRSCH: Your Honor -- well, here, whatever it
means, it means that -- it's not exactly clear what Judge
Gettleman is referring to here when he says that.
The other thing is, David Bradford says on Page 5 --
he's describing something and he says, It is one of several
side agreements, but we want to disclose all those kind of
collateral agreements where they are temporary in nature and
perhaps don't belong in a permanent injunctive order but were
part of the understanding we worked out.
THE COURT: Yeah, but that's referencing something
that has nothing to do with the order. It's not in the order.
MR. KIRSCH: Right.
THE COURT: So if Mr. Trudeau says, yes, I had a hand
in preparing the order -- that statement just doesn't bear on
that at all, what he means by that at all, does it?
MR. KIRSCH: Well, your Honor, you have to -- I think
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you have -- it would be unfair to cull out that question by
itself. You have to consider that question in the context of
the question -- the preceding question, which is, Do you have
any questions, concerns, anything unclear to you about what
was just said here? And, of course, what was just said here
should come in for the jury to consider it.
Your Honor, there's absolutely no prejudice to the
government whatsoever from the preceding pages coming in if
they want to use the question, Obviously you had a personal
hand in the provisions of this agreement.
Now, I started by saying, they don't need it.
Trudeau signed the agreement. But if they want it, if they
want it, I don't have an objection to them using it as long as
under Rule 106 the remainder of that transcript comes in to
put in context what it says.
And, your Honor, I read from the transcript in this
Court, from November 1, 2013, regarding what this Court said
about this exact transcript when we were discussing it on
November 1st. And that's my position, your Honor.
THE COURT: Okay. All right. Anything else?
MR. KRICKBAUM: Judge, just very briefly.
Judge Gettleman asked Mr. Trudeau two questions, and
they were two different questions.
The first question he asked is on Page 7 at the
bottom: Do you have any questions, concerns or anything
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unclear to you about what was just said here? That's
obviously referring to what was just said.
The next question on Page 8, the Court asked a
different question. He's asking about the terms of the court
order. He said, Obviously you had a personal hand in the
provisions of this agreement. That's the court order. And
the defendant said yes. And that's the only point that we're
seeking to admit and that's the only point that's relevant.
In terms of whether the preceding pages are
prejudicial to the government, I think that they are for a
couple of reasons.
On Page 3 Ms. Hippsley makes a reference to the First
Amendment protections, that this Court has already ruled that
that kind of evidence is simply confusing and beside the point
and will be likely to mislead the jury.
And then for the rest of this discussion they're
talking about provisions of the order and some side agreements
that aren't even in the order, none of which is at issue in
this case. So I think it's likely to be confusing and, on the
First Amendment point, to mislead the jury. And it doesn't
provide any context for whether Mr. Trudeau had a hand in the
order or not. And that's the only purpose for which we're
seeking to admit it.
THE COURT: Okay. I'm going to deny the offer of
this question and answer as evidence in this case.
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First, it relates to Mr. Trudeau's understanding. If
it relates to anything, it relates to his personal
understanding of the order, which I've ruled really isn't
relevant in this case, you know.
His personal understanding of whether or not he was
violating the order is one thing. His personal understanding
of what the order meant is not relevant in this case and
doesn't go to wilfulness or good faith.
Second, that question and answer by itself tells us
almost literally nothing. The -- doesn't relate directly to
the one and only portion of a long order that we are dealing
with in this case, which is a sentence long.
Had Judge Gettleman asked him about that particular
thing, then possibly even then I think we would have a problem
with it. But possibly that would be something that could come
in.
The other information, some of which, some of which
could be relevant to the meaning of -- or to explain what he
-- what the defendant meant when he said, yes, I had a hand in
the provisions of this agreement, there is a very small amount
of information before that about the provisions of the
agreement that relate to the injunction with respect to
infomercials which I suspect would be somewhat relevant, but
the vast majority of the information before that is with
respect to some things that aren't even in the agreement.
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There's bantering and jokes between the attorneys and
the Court, which attorneys and others familiar with that might
recognize that as bantering and jokes, jurors might very well
not, a joke about who's driving the defendant's car, about the
fine levied against the defendant, none of which is relevant
to this case.
And the probative value of just this one question and
answer is, in my opinion, even if it were found to be
relevant, almost nil, especially in view of the fact that you
have a consent decree here with not only Mr. Trudeau but his
attorney's signature on it as well.
And the only question before the jury is whether or
not it's a simple and direct order. That's really all the
jury is concerned with in this case, reasonably
understandable. So I don't think any of it comes in.
MR. KRICKBAUM: We understand, Judge.
THE COURT: All right. Bring the jury out.
MR. KIRSCH: Your Honor, we've been talking about
scheduling, and I wanted to raise some things with the Court
and -- I know -- we agree on this -- we've had a lot of issues
for the Court during this trial but I wanted to raise this
with the Court. We agree on this. And I just -- your Honor,
we're going to do whatever you want us to do and we're going
to be here whenever you want us to be here. But from the
jury's standpoint, can I just kind of outline to the Court
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where I think the case is going at this point?
THE COURT: I think you can do that after we're done
with what we have to put in front of the jury today. They've
been sitting back there cooling their heels and I'm not going
to do anything to prolong this case any longer than I have to.
Those people are here. They're not getting paid, you know.
You're getting paid, he's getting paid, I think -- well, yeah,
I think I'm getting paid now, too.
(Laughter.)
THE COURT: So we're all fine and happy to be here as
long as it takes. Those people are sacrificing. Let's get
them out here, get the evidence in front of them. We'll talk
about anything other than that after they've gone home for the
day and before they come back tomorrow.
MR. KIRSCH: Your Honor, just so the Court is
aware -- we'll do whatever you want, but I think the case --
what I'm suggesting is, if we leave them at home tomorrow, I
think -- if I could just -- if we -- we'll do whatever you
want, but if we leave them at home tomorrow we can do the jury
instruction conference tomorrow, and I think we may be able to
finish the case on Tuesday.
I think if we bring them in tomorrow, we probably
won't be able to finish the case tomorrow and they would have
to come back on Tuesday anyway. So for their convenience,
that's the only reason I raise that, your Honor.
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Carrier - cross
381
THE COURT: That may be. But it also may be that if
we leave them home tomorrow we won't get everything done on
Tuesday and they'll have to come on Wednesday.
So I'm not going to do that. We're going to move
ahead on the schedule that I indicated previously we would
move on and try to get this done as quickly as we can for
these folks so that they can go home and resume their normal
lives. And if it happens that we finish on Friday in time to
go to closings, we'll do it. And if it happens that we don't,
we won't. That's all.
It's not that complicated a matter. The jury
instruction conference may take awhile. I don't know that it
will. We've done most of it already. That's why I had, what,
three, I think, separate final pretrial conferences in this
case.
Let's bring the jury out. Let's get the --
MR. KIRSCH: Yes, your Honor. I just wanted to avoid
them coming in for a few hours tomorrow, that's all.
THE COURT: Resume your cross.
BY MR. KIRSCH:
Q. Inspector Carrier, before we took a break we were just
starting Page 25 of my chart, Defendant's Exhibit 2.
Do you see Page 25?
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Carrier - cross
382
A. Yes.
Q. All right. And do you see that the alleged representation
here on the left-hand side of the chart, that after the
protocol is finished you can eat whatever you want? Do you
see that?
A. Yes.
Q. And then the middle column on Defendant's Exhibit 2
contains the statements from the infomercial that you
contained on your chart, Government's Exhibit 19.
Do you see that?
A. Yes.
Q. And those statements continue on Page 25, 26 and 27,
right?
A. Yes.
Q. And those statements have to do with essentially being off
the protocol and eating whatever you want, right?
A. Yes.
Q. All right. So I would like to show you some portions of
the book where I believe those statements appear.
First, on Page 7 and 8 --
MR. KIRSCH: DJ, can you pull up Page 7?
BY MR. KIRSCH:
Q. And down on the third paragraph of Page 7, which is in
Chapter 1 -- do you see that?
A. Yes.
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Q. All right. Can you read that first paragraph, which
starts on Page 7 and then carries over to Page 8?
A. It starts with "Imagine?"
Q. It starts on Page 7, "The weight loss cure." Do you see
that?
A. All right. It's in order.
"The weight loss cure protocol does, in fact, cure
and correct these problems. When you finish the protocol your
metabolism is reset to the normal level. Your physical hunger
is reset to the normal level. The emotional eating issues and
food cravings are gone forever. This means when you finish
this protocol you will be able to be a normal person in
relation to your eating and weight. Your hunger will be
completely normalized. You will be able to eat any food you
want. Your body will burn the food you eat so that it does
not turn to fat. Your hunger and appetite mechanisms will be
regulated so that you can have an intense feeling of fullness
with no psychological food cravings. You will have no desire
to eat when you are not hungry. For some of you, this will be
a new and life-changing experience.
Imagine going to a buffet and eating a normal amount
of food and feeling totally full and satisfied. Imagine not
having to deal with willpower or deprivation. Imagine not
being hungry throughout the day. Imagine no longer being a
slave to food or your weight. This cure may be the answer to
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your prayers."
Q. All right. I want to go now to Page 18. And in the
second paragraph of Page 18, can you please read beginning
with the sentence, "When your metabolism."
MR. KIRSCH: DJ, I think that's kind of off the --
your chart is too big.
(Brief pause.)
BY MR. KIRSCH:
Q. Okay. Do you see that sentence, "When your metabolism?"
A. Yes.
Q. Could you read to the end of that paragraph, please?
A. "When your metabolism is abnormally low your body cannot
burn the food as fuel. When food is not burned for fuel, the
excess must be converted to fat, thus increasing your weight
and making you fatter. This is the first condition which must
be corrected if you want to experience rapid weight loss and,
more importantly, be able to eat whatever you want in the
future without gaining any weight. The weight loss cure
protocol is the only method known that cures this problem."
Q. And then let's go to Page 19, in the middle of the
paragraph -- in the middle of the third paragraph on Page 19
of the book. Do you see there the sentence that begins, "This
does not mean?" Do you see that?
A. Yes.
Q. All right. Can you read that through the bottom of the
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first -- or the end of that paragraph, please?
A. "This does not mean you will be restricted to certain
kinds of food. On the contrary, when you finish the weight
loss cure protocol you will be able to eat any food you want
in any amount you want any time you want.
What will occur, however, is that because the
physical abnormalities that have been corrected, your body
will no longer crave or have intense hunger for certain types
of food. This is a freeing experience leading to a life where
you no longer -- where you are no longer a slave to food or
your uncontrollable cravings."
Q. All right. Page 20, I just call your attention there to
the bottom of the second paragraph, with the sentence that
begins, "With a high metabolism." Do you see that?
A. Yes.
A. "With a high metabolism you can eat any kind of food you
like, in any quantity you want, and your body will burn it off
and not convert it to fat. This means you never have to diet
ever again and you will never gain weight. This will be
achieved when you do the weight loss cure protocol."
Q. I now would like to go to Page 29 of the book. And in the
last page there, which carries over to Page 30 --
MR. KIRSCH: DJ, can you get that on the screen,
please? I think you need to move it over so it's on the --
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(Brief pause.)
BY MR. KIRSCH:
Q. Do you see the sentence there that begins, "The even
better news?"
A. Yes.
Q. Could you read that through the end of that paragraph,
please?
A. "The even better news is when you are finished with the
protocol you will be able to eat any kind of food you want.
You will be able to eat cheeseburgers, french fries, ice
cream, cookies, cakes, bread, pasta, cheese, butter, cream,
steak, pizza, Mexican food, mashed potatoes and gravy,
virtually any kind of food you want. Remember, when your
hypothalamus is reset, your metabolism will be high and you
will no longer have intense and constant hunger. You will
automatically and effortlessly be eating normal quantities of
food without ever feeling hungry or deprived. Your body will
naturally burn the food as fuel, giving you abundant energy
and guaranteeing that you will not gain the weight back."
Q. All right. Now, go to Page 27 of my chart and Page 47 of
the book. We have three more that I want to show you with --
three more examples with respect to this allegation.
And do you see there the beginning of the -- of that
paragraph begins, "To further prove?"
MR. KIRSCH: DJ, can you show that whole paragraph,
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please?
No, no, no. Beginning, "To further prove", until the
end of the paragraph. Okay.
BY MR. KIRSCH:
Q. Can you read starting with, "To further prove" through the
end of that paragraph?
A. "To further prove that the treatment, in fact, cured the
disorder, all patients must have the ability to eat normally
any food he pleases in any amount without regaining abnormal
fat or weight after the treatment.
These requirements were met during the research.
Simeons then could legitimately speak of curing obesity rather
than just reducing weight. Never before or since has a true
care for obesity been a legitimate claim."
Q. Okay. Now Page 106 -- jump ahead to Page 106. And can
you read the third paragraph beginning with, "The simplest
rule" through "that cause obesity?"
A. "The simplest rule to follow is to eat anything you want,
as much as you want, as often as you want. The only caveat is
eating -- is only eat 100 percent organic food. If you do
this you will never be consuming all of the things that are
designed to overtax your hypothalamus and create the
conditions of obesity.
In real life, in the real world, eating only
100 percent organic food can be next to impossible. Basically
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then what you work to achieve is to avoid, as best you can,
the manmade ingredients that cause obesity."
Q. All right. Then page -- last one, Page 112. And up at
the top of the page, in the first paragraph, beginning with,
"You can still," will you please read that?
A. "You can still eat mashed potatoes and gravy, cheese
burgers, french fries, pizza, pasta, cheese, butter, eggs, pot
roast, cake, cookies, ice cream, et cetera. The key is
reading the ingredient list. All of these foods are available
without the forbidden fat, including manmade ingredients.
They are all available with 100 percent organic whole food,
non-refined, real ingredients as nature intended. This kind
of food actually tastes much better, is more filling and much
more satisfying than the manmade mass produced counterparts
that are sold by the large publicly traded international food
conglomerates."
Q. All right. The next representation --
MR. KIRSCH: I don't have a chart on -- your Honor, I
would ask that you please change the source to the ELMO.
(Brief pause.)
BY MR. KIRSCH:
Q. All right. I'm going to show you on the ELMO your chart,
Exhibit 19. Do you see that?
A. Yes.
Q. Okay. Now, the representation -- the next representation
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that we're going to talk about is down here -- I put it down
at the bottom so you can see.
See the representation? And the representation is
references to a doctor's supervision. Do you see that down on
the bottom?
A. Yes.
Q. All right. And then right here -- I'm going to circle
this -- this is an example, and it's the only example in your
chart of the alleged misrepresentation there, right?
A. It's the only time a doctor is referenced in the
infomercials, yes.
Q. Okay. Go ahead and read that.
A. "When you're underage, you obviously want to do any weight
loss program under the supervision of a licensed health care
practitioner."
Q. All right. And so I'm clear, what's the alleged
misrepresentation with respect to that statement?
A. The --
THE COURT: Sustained.
BY MR. KIRSCH:
Q. Okay. You say the representation is that there are
references to a doctor's supervision, right?
A. This is the only time in the infomercial a doctor's
supervision is mentioned.
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Q. All right. But it does mention a doctor's supervision,
right?
A. Yes.
Q. And it mentions a doctor's supervision in the book, right?
A. Yes.
Q. But in this portion of the infomercial Trudeau is not
referring to the fact that only minors needed the care of a
physician, was he?
MR. KIRSCH: I'm asking her -- your Honor, it's her
chart. I'm asking her to explain her chart and why she put it
on her chart. It's her chart.
THE COURT: The basis of the objection?
MS. PERRY: The agent should not be asked what Mr.
Trudeau was trying to refer to. The statement is the
statement; it speaks for itself.
His intent behind the statement or what he's trying
to say with the statement is beyond her knowledge.
MR. KIRSCH: Your Honor, I'm just asking her --
THE COURT: Your response --
MR. KIRSCH: Pardon?
THE COURT: Your response? It calls for her
testimony as to somebody else's state of mind.
MR. KIRSCH: No, I'm not asking her to testify to
anybody's state of mind. I'm asking her to just simply
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391
testify to why she put it on her chart.
THE COURT: I will sustain the objection.
MR. KIRSCH: Can I rephrase the question, your Honor?
THE COURT: You can always try asking a new question.
MR. KIRSCH: Okay.
BY MR. KIRSCH:
Q. Ma'am, you created this chart, right? You testified to
that, correct?
A. Yes.
Q. All right. And it was you that put that example on this
chart, right?
A. Yes.
Q. All right. And you testified that you put it on the chart
because it's the only time in the infomercial where he refers
to a doctor's supervision?
A. Yes, when he's referring to if -- when you are underage,
you obviously want to do any weight loss program under the
supervision of a licensed health care practitioner.
Q. So he says that in the infomercial, right?
A. Yes.
Q. And then you agree -- you saw numerous examples in the
book where he refers to the supervision of a doctor, right?
A. When someone is doing the weight loss cure protocol.
Q. Right.
MR. KIRSCH: Your Honor, could I have just one
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second?
THE COURT: Sure.
(Brief pause.)
BY MR. KIRSCH:
Q. Okay. I'm going to go to now another example that you put
on your chart. Do you see the representation there in the
middle of the page that anybody can do the protocol? Do you
see that?
A. Yes.
Q. All right. And then do you see the example there, that
anybody can do it? And then what does it say right in the
middle?
A. "I believe."
Q. When you look at the book, are there any categories of
people that are precluded by the book from doing the weight
loss cure protocol?
A. Based on the list of what people have to do, there could
be people that could not do the protocol.
Q. All right. Does the book include any examples of
categories of people that cannot do the protocol?
A. In the question and answer section I believe there's a
question where it states if you are asked -- if I'm a
vegetarian, can I do the protocol, and it states you have to
do a different -- something different to the protocol.
Q. Okay. But it doesn't say no, right?
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A. It refers you to a different diet.
Q. To a different part of the -- to a different -- a
substitute for part of the protocol, right?
A. Yes.
Q. Just like the HCG issue, right?
A. Yes.
Q. All right. And, in any event, it says right in the middle
of the example, and the only example that you've listed, "I
believe," right?
A. Yes.
Q. All right. Inspector Carrier, we're down to the last
representation on your chart and then we've gone through them
all.
And the last one is on the next page of the chart,
which I think is Page 30 -- 29 and 30. And I'm going to show
you on the ELMO your representation -- the representation that
you can do the protocol at home, right?
A. Yes.
Q. And then your examples from the infomercials, you can do
it at home, you can do it at home, anybody can do it at home.
Do you see that?
A. Yes.
Q. All right. Now, do you remember the infomercials --
because I'm going to show you some more fulsome quotes
regarding you can do it at home.
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Do you remember the infomercials and the transcripts
of the infomercials that were played here in court for the
jury?
A. Yes.
Q. Do you remember that Trudeau in the infomercials described
his experience of doing the protocol at a clinic? Do you
remember that?
A. Yes.
Q. And then in the process of describing his experience in a
clinic, he distinguished that and said, but you can do it at
home, right?
A. Yes.
Q. All right. So let me show you some examples of that.
MR. KIRSCH: Your Honor, can we go back to the
computer?
MR. KIRSCH: And, DJ, can you bring up, please,
Government Exhibit 1-A, which is the transcript from the first
infomercial.
BY MR. KIRSCH:
Q. All right. Now, do you have a copy of Government's
Exhibit 19 in front of you?
A. No, I don't.
Q. Okay. Do you have the binder still up there?
A. No, I don't.
Q. I'm going to give you the whole thing but I'm only focused
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on the first page.
A. Thank you.
Q. All right. Do you see there on 19, for the reference you
can do it at home, and it's -- your citation there is
Government Exhibit 1-A, Page 2, Lines 25 through 26. Is that
right?
A. Yes.
Q. I would like to show you, starting with page -- I would
like to show you the exact same exhibit, Government
Exhibit 1-A, the exact same page, Page 2, but instead of
showing you Lines 25 and 26, I would like you to start at
Line 19. So I would like to show you 19 through 26.
Okay. So starting at 19, can you please read that?
A. "Instantly comes back. This book here is called The
Weight Loss Cure 'They' Don't Want You to Know About and it
describes a cure that was developed by a British medical
doctor. Now I'll tell you the story. I went to Germany to
test this out. I did not invent this, I did not discover it,
I found it. I found it and I thought if it works for me, I've
been struggling with weight my whole life, I said then I can
tell people about it. So what happened was, I went to Germany
and I met with this clinic. Now, this clinic where the cure
is being done -- you can do this at home, by the way. You
don't need to be in a clinic."
Q. So out of that whole phrase, you included just, "you can
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do it at home," right?
A. Yes.
Q. But put in context, it clearly indicates that Trudeau was
doing the clinic -- or was doing the protocol at a clinic,
right?
A. Yes.
Q. And it was distinguishing between his experience and what
could be done at home, right?
A. Yes, in the infomercial, yes.
Q. All right. I now want to show you another example. The
next reference on your chart is you can do it at home, and you
cite Government's Exhibit 1-A, Page 4, Line 21.
And I want to show you Government's Exhibit 1-A,
Page 4, but instead of just showing you Line 21, I want to
show you 16 through 21 -- or 15 through 21.
MR. KIRSCH: DJ, can you show 15 through 21?
BY MR. KIRSCH:
Q. All right, can you please read that, beginning with the
sentence, "When you do the weight loss cure" on page -- on
Line 15?
A. "When you do the weight loss cure protocol as described in
this book, here's what happened to me.
"Mmm hmm.
"And the hundreds of thousands of other patient records that
I reviewed. When you do the weight loss cure protocol, it's
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easy to do. You can do it at home."
Q. Now, when he says, "Here's what happened to me," do you
see that?
A. Yes.
Q. He had just described his experience in a clinic, right?
A. Yes.
Q. I show you another example. And your next example on the
chart -- I'm only going to go through two more of these.
But your next example on the chart, it says anybody
can do it at home and you cite Government's Exhibit 1-A,
Page 5, Line 38. And I would like to show you Government's
Exhibit 1-A, Page 5, but I would like to show you lines 38 and
39.
All right. Can you read that?
A. "No, very inexpensive to do. Anybody can do it at home.
I went to Germany to, to really evaluate this and I researched
it."
Q. Again, he's talking about his experience, right --
A. Yes.
Q. -- in Germany.
And the last example I'm going to show you is your
next example, you don't have to go to a clinic to do it. You
can do it at home, which you cite to Government's Exhibit 2-A,
Page 23, Line 24 and 25. And I would like to show you
Government's Exhibit 2-A at Page 3, lines 22 through 25. And
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I would like you to read that, please?
A. "It's very easy to do, and here's what's different. When
you do the weight loss protocol, and I did it, I went to
Germany to research it at a clinic. When I was there, a king
from a foreign country was there doing the protocol. Now, you
don't have to go to a clinic to do it. You can do it at
home."
Q. All right.
MR. KIRSCH: Your Honor, can I go through the -- I'm
done with that exhibit. Can I go back to the ELMO, your
Honor?
THE COURT: Sure.
BY MR. KIRSCH:
Q. All right. Inspector Carrier, we're now finished with
your Chart 19 and my Chart 2. And before we move on from
this, will you just take a quick look at your Chart 19 and
confirm that we've covered all of the representations
contained on your chart, every single one of them?
A. Yes.
Q. We have, right?
A. Yes.
Q. All right. Agent Carrier, do you recall on direct
examination Ms. Perry showed you the book and she was reading
from -- you were reading some portions from the book? Do you
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recall that?
A. Yes.
Q. All right. And she had underlined the book in red for the
portions that you were to read? Do you recall that?
A. Yes.
Q. All right. Do you have that book in front of you
underlined in red?
A. No, I don't.
Q. All right. I have -- what I did is, I went back and I
underlined in red what Ms. Perry read to you because -- I've
now underlined in blue some of the additional stuff that I
would like you to read. But if you would like to see that
book that's underlined in red, just let me know and I'll get
it for you so you can look at it, okay?
A. Okay.
Q. I'll just show you an example of what I'm talking about on
the ELMO.
On Page 76 -- I'm showing you Page 76. Do you see
that?
A. Yes.
Q. And do you see the red underlining there that says, "The
more you do in this phase?" Do you see that?
A. Yes.
Q. All right. Do you recall reading that one single sentence
on direct examination?
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A. Yes.
Q. All right. I've underlined in blue -- starting with Phase
1, do you see those sentences that I've underlined in blue?
A. Yes.
Q. All right. Will you please read those?
A. "Although this phase is not required, based on today's
conditions it is highly recommended. This phase consists of a
series of dos and don'ts. It may be difficult for most people
to do all the steps in this phase with strict adherence. Do
as many as you can for the 30 days prior to starting Phase 2."
And then down, "If you skip this phase or do it
half-heartedly, you will still achieve spectacular results in
Phase 2."
Q. All right. I'm going to jump ahead to Page 91, and I'm
going to show you -- do you see down there at the bottom of
the page?
A. Yes.
Q. Can you see the underlining in red that begins with the
sentence, "If I operated a clinic?" Do you see that?
A. Yes.
Q. Do you recall reading that sentence to the jury during
direct examination yesterday?
A. Yes, I do.
Q. All right. I would like you to read the preceding
sentence as well.
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A. "This list may seem overwhelming. Certainly the average
person may find it difficult to do everything on this list for
the entire 30-day Phase 1 period. If I" -- okay.
Q. Okay. That's the stuff I wanted you to read. And this is
-- this is agreeing -- this is the list of Phase 1 items,
right?
A. Yes.
Q. So I show you Page 91. Ms. Perry asked you to read that
one sentence and I asked you to read the preceding sentence.
I'm going to go to Page 92, and I would like you to read --
you don't have to read the highlighted stuff but just read the
stuff I've underlined there on that page.
A. "However, you live a hectic, busy lifestyle; therefore,
you may only be able to do some of the things in this phase.
Remember, during this phase you are not reducing the quantity
of food you are consuming. You are to eat as much food as you
want. If you want ice cream, cake or cookies, eat them. Just
make sure they are 100 percent organic without the forbidden
ingredients listed above."
Q. Now, down -- do you see the other -- forget the
highlighted stuff; you read that earlier. I don't want you to
re-read it. But do you see the part I've underlined, "If you
skip?"
A. Yes.
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A. "If you skip this entire phase and go right to Phase 2,
which is the original Simeons' weight loss cure protocol, you
will still see spectacular results. Doing Phase 1 in any
degree has been shown to make everything work faster and, more
importantly, help guarantee that permanent weight loss will be
achieved and hunger and food cravings will be permanently
eliminated."
Q. Okay. I'm now going to go to Page 106. And do you see
there in the middle of the page -- do you see that sentence
that Ms. Perry asked you to read, "The simplest rule to follow
is to eat anything you want, as much as you want, as often as
you want. The only caveat is eat 100 percent organic food?"
Do you see that?
A. Yes.
Q. And then do you see the sentence that I've underlined in
blue?
A. Yes.
Q. You don't have to read it because I think you've read it
about six times already during the course of this trial. But
do you see down there at the bottom of the page where Ms.
Perry asked you to read, "To keep the weight off permanently
and to achieve vibrant dynamic health, here is a list of dos
and don'ts." Do you see that?
A. Yes.
Q. And this is Phase 4 we're now talking about, right?
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403
A. Yes.
Q. All right. What's the -- read what I have underlined in
blue there, the first sentence of the dos and don'ts
suggestions on Page 4?
A. "Eat only 100 percent organic food. Although this is the
ideal scene, in real life this can be next to impossible. Do
the best you can."
Q. It just says, "Do the best you can," right?
A. Yes.
Q. Does that sound like a requirement?
MR. KIRSCH: I withdraw the question, your Honor.
BY MR. KIRSCH:
Q. All right. I'm going to show you 111. Do you see
Page 111?
A. Yes.
Q. Ms. Perry asked you to read what I've underlined in red.
Again, forget the highlighting. The book -- by the way, the
book you read wasn't highlighted, right, just so the jury is
clear?
A. Correct.
Q. All right. The highlighted stuff was stuff you read
earlier, so I want you to ignore the highlighting for this.
But do you recall reading this on direct examination?
A. Above, yes.
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Carrier - cross
404
Q. And it talks about shopping at local food markets, and
then Trudeau writes that he went to a major super store chain
and he said every single bottle of ketchup had high fructose
corn syrup and every single loaf of bread had some kind of
super highly refined processed sugar.
Do you remember reading that?
A. Yes.
Q. I want you to read, in addition to what you read on direct
examination, what I've underlined in blue down below?
A. "I then went to Whole Foods. I easily found many brands
of mustard, ketchup and bread that did not have any high
fructose corn syrup or any other super refined highly
processed sugars."
Q. I want to show you Page 112. Do you remember being shown
Page 112 on direct examination?
A. Yes.
Q. All right. And do you remember reading the sentence,
"Always consult a licensed health care practitioner before and
during your cleanses?"
A. Yes.
Q. Do you see that?
All right. I also would like you to read what I've
underlined in blue on Page 112.
A. "It is impossible for the average person to eat this way
all the time. This is why doing a colon cleanse, liver
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Carrier - cross
405
cleanse, heavy metal cleanse and parasite cleanse once or more
per year is strongly suggested."
Q. All right. Now, the -- the reference to "it's impossible
for the average person to eat this way all the time" is a
reference to Phase 4, right?
If you have some --
A. Yes.
Q. All right. Because see down there at the bottom what I've
underlined, that it says, "The suggestions in Phase 4?" Do
you see that?
A. Yes.
Q. All right. So at least on that page it calls page --
Phase 4 suggestions, right?
A. It speaks of the suggestions -- the suggestions made in
Phase 4, yes.
Q. Okay. And, now, do you remember some testimony that the
expert gave and she mentioned Oreo cookies? Do you remember
that when she was testifying?
A. Yes.
Q. All right. Can you please read what I've underlined in
blue?
A. "Please ask me if they can still -- people ask me if they
can still eat the foods they are accustomed to. The answer is
absolutely yes, but you must change brands. If you like Oreo
cookies, change to another brand such as Paul Newman organic
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Carrier - cross
406
cookies that are almost identical to Oreos. The Oreos are
loaded with trans fats and super highly refined sugars and
ingredients that make you fat. Paul Newman's cookies have no
trans fats, organic ingredients and no super highly refined
sugars and ingredients. They taste better and are more
filling. They do not give you the sugar crash and increased
hunger associated with Oreos. In normal amounts they will not
make you fat."
Q. All right. Do you remember reading from Chapters 5 and 6
and Chapter 9, which are also included in the black binders
that were handed out to the jury?
A. Yes.
Q. I'm going to show you Page 115, which is Chapter 6, and it
is Frequently Asked Questions. Will you please read the quote
that begins that chapter?
A. "The thing that bugs me is that people think the FDA is
protecting them. It isn't. The FDA is protecting the profits
of the corporations that pay us and the politicians. Herbert
Ley M.D., former FDA Commissioner."
Q. The FDA is run by a body of commissioners, is that
correct?
A. I'm not sure how it's run.
Q. Now, I'm going to go to Page 117 and I want to show you in
red the highlighted -- or the portions in red are what you
read on direct examination, do you recall that, regarding HCG?
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407
A. Yes.
Q. All right. Can you please read what I've underlined in
blue as well?
A. "Question: What if I just did the diet in Phase 2 without
the HCG injections?
"Answer: Many double blind studies have been conducted that
give the answer to this question. If you just do the diet in
Phase 2 without the HCG injections, you will, in fact, lose
weight."
Q. All right. I'm going to go now to Page 118. Do you see
that?
A. Yes.
Q. And, Ms. Perry asked you to read what does the FDA say
about HCG, which is underlined, do you see that, which is in
red?
A. Yes.
Q. All right. I'm not going to ask you what I've -- to read
what I've underlined in blue. I've already asked you to read
that.
And I'm just going to ask you, do you recall that
that's talking about a substitute for HCG in the event that
it's unavailable to complete Phase 2?
A. That's what that section discusses, yes.
Q. All right. So there is a substitute for HCG. That's what
the book says, right?
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Carrier - cross
408
A. It refers you to a different book, yes.
Q. All right. And you don't have to use HCG to complete the
protocol, right?
A. According to this section you don't.
Q. Okay. I'm now going to show you Page 122. And do you see
there what I've underlined in blue, "Isn't 500 calories a day
too low to be safe?"
(Brief interruption.)
BY MR. KIRSCH:
Q. Okay. Do you see the question there, "Isn't 500 calories
a day too low to be safe?" Do you see that?
A. Yes.
Q. Will you please read that answer?
A. "No. Research now confirms that eating very low calorie
diets actually increase overall health, have anti-aging
effects and increase life span. This was reported recently in
the New York Times. Most importantly, however, is when you
are doing the diet combined with the HCG injections, your body
is being flooded with over 2,000 calories of nutrition from
the releasing of the abnormal fat reserves. This is one of
the reasons that during Phase 2, consisting of the diet and
HCG injections, you are not hungry and generally have an
increase in energy levels."
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Carrier - cross
409
Q. I just want to show you another page, Page 128.
Do you see Page 128?
A. Yes.
Q. And do you see there what I've underlined again refers to
suggestions in Phase 4? Do you see that?
A. Yes.
Q. All right. I'm going to show you Page 144. Do you see
there what's underlined in red Ms. Perry asked you to read,
"Why are fast food and regional and chain restaurants so bad?"
And you read, "All restaurant food is designed to make you
fat." Do you see that?
A. Yes.
Q. All right. Will you continue to read the remainder of
Mr. Trudeau's explanation in that answer in the book?
A. "The worst offenders are fast food chains. All regional
and national chain restaurants should also be avoided.
Virtually all restaurants have their food produced by the same
small group of multi-national food companies. Almost all
restaurant food comes pre-made, pre-mixed, pre-seasoned,
freeze-dried, frozen or in jars and cans.
"Restaurants today do not cook food from scratch.
They are not using fresh organic ingredients. Most food
served in these kinds of restaurant are simply reheated. The
food sold in fast food restaurants, regional and national
restaurants, and most other restaurants, are loaded to the
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Carrier - cross
410
highest degree with the specific ingredients that cause
obesity. These include super highly refined sugars, such as
high fructose corn syrup, corn syrup, sucrose and dextrose,
trans fats, such as hydrogenated or partially hydrogenated
oils, artificial sweeteners, including aspartame and
sucrolose, meat, poultry and dairy loaded with growth hormone,
antibiotics and other animal drugs, virtually no food with any
fiber, food that is super highly refined and extremely high on
the glycemic index, monosodium glutamate and other
excitotoxins and meals that are massively high in calories.
"This situation permeates American culture and is
spreading all around the world. Wherever these kinds of
restaurants spring up and this kind of food is sold, obesity
springs up as well.
"We know that smoking cigarettes causes cancer. The
tobacco companies lied about this known fact for 50 years. We
now know that eating food from fast food restaurants, regional
and national chain restaurants, and most other restaurants,
absolutely causes obesity. Companies have done this purposely
and are lying to us now about this true fact."
Q. All right. I want to show you Page 159 of the book. And
do you recall reading the lines that are underlined in red
during your direct examination?
A. Yes.
Q. All right. Will you please read on that page what I've
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Carrier - cross
411
underlined in blue?
A. "You're not a doctor -- question: You're not a doctor.
How can I feel good about your dos and don'ts in Phases 1, 2,
3 and 4?
"Answer: Every single do and don't in all four phases of
this protocol come directly from medical doctors and
credentialed experts. Thousands of licensed health care
practitioners around the world use these dos and don'ts with
spectacular results. No negative side effects are
experienced.
"These are not my recommendations. I did not create
or invent them. I am simply reporting on what doctors around
the world are using successfully. All the backup references
are in the appendix of this book and in the books listed in
the bibliography and each of those books' respective
bibliographies."
Q. And my last example, Inspector Perry, is on page -- I'm
sorry -- Inspector Carrier, is on Page 165. And on Page 165
-- I'm going to show you this -- do you recall reading what
was in red here, which I've -- Point No. 1?
A. Yes.
Q. And do you recall it says, "Don't eat forbidden foods in
Phase 4," et cetera, et cetera?
Do you recall that?
A. Yes.
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Carrier - cross
412
Q. And do you recall being asked the question before you read
that: "All right. Again on Page 165 it discusses
specifically what the point is of doing Phase 4. Could you
please read the Subsection 1 on Page 165?"
Do you see that?
A. Up above?
Q. No. Do you remember being asked that question on direct
examination again?
Do you want me to read it again? I can do it if you
want.
A. I don't know what section you're talking about.
Q. Okay. Do you see the section that I've underlined in red?
A. Yes.
Q. Okay. Before you read that section yesterday do you
remember this question: "All right. Again, on Page 165 it
discusses specifically what the point is of doing Phase 4.
Could you please read the Subsection 1 on Page 165?"
Do you recall that?
A. Yes.
Q. All right. And then you read Subsection 1, right?
A. Yes.
Q. But Page 165 and Subsection 1 don't discuss the point of
Phase 4, do they?
MS. PERRY: Objection, Judge. It very specifically
says why you should do Phase 4.
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Carrier - cross
413
MR. KIRSCH: Your Honor, I didn't ask about -- I
asked about Page 165.
THE COURT: You can ask the witness what is in the
document.
MR. KIRSCH: Okay.
THE COURT: If you want her to explain it, that's a
different story.
MR. KIRSCH: Okay. I'll ask the question again, your
Honor, a different way.
BY MR. KIRSCH:
Q. All right. Before you read this, you answered a question
that this here was the point of Phase 4, right? (Indicating.)
A. One of them.
Q. All right. But do you see right above there it says,
"There are several solutions to this dilemma?" Do you see
that?
A. Yes.
Q. All right. And "this dilemma", which refers to Point No.
1, refers to emotional eating, right?
A. Yes.
Q. That's what's being discussed in this paragraph, are the
reasons for emotional eating, right?
A. One of them, yes.
Q. All right. Well, why don't you read what I've underlined
in blue there?
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Carrier - cross
414
A. "The single most significant cause of emotional eating or
uncontrollable urges to eat when you are not hungry is a
combination of stress and anxiety patterns locked in the body,
as well as hypnotic triggers that are in our minds due to the
subliminal, and highly advanced, suggestive advertising we are
bombarded with on TV, radio and print media put out by the
food companies."
Q. Go ahead.
A. "Every person reading this has been purposefully and
systematically hypnotized, given posthypnotic suggestions and
bombarded by subliminal suggestions by the food companies in
their advertising to specifically create uncontrollable
cravings to eat specific food even when they are not hungry.
Combine this with the fact that the food you are craving is
loaded with chemical agents to create drug-like physical
addiction, and you can now see why you are screwed when it
comes to trying to lose weight."
Q. Go ahead. The next sentence?
A. "There are several solutions to this dilemma."
Q. All right. And "this dilemma" is discussing about
emotional eating, right?
A. Yes.
Q. And then it gives solutions to the dilemma of emotional
eating, right?
A. Yes.
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Carrier - cross
415
Q. Not the point of page -- of Phase 4, right?
MR. KIRSCH: Okay.
BY MR. KIRSCH:
Q. I'm going to shift gears away from the book, Inspector
Carrier, and I'm going to go back to Government's Exhibit 5.
I will show you on the ELMO. And this is the consent order.
Do you see that?
A. Yes.
Q. Okay. We've talked a little bit about the consent order
in this case, but I want to ask you some questions about the
infomercials, okay?
A. Okay.
Q. Did you see -- when you saw two of the infomercials, did
you see references to Shop America throughout the infomercial?
A. Yes.
Q. And then on one of the infomercials you saw ITV TV? Do
you recall that?
A. Yes.
Q. All right. Now, I would like to show you Page 20 of the
consent order. And do you see down there at the bottom,
Section C on Page 20 -- do you see that?
A. Yes.
Q. All right. Can you start -- first of all, with Roman
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Carrier - cross
416
Numeral XV, do you see it says, "Distribution of orders by
defendants?"
A. Yes.
Q. All right. And then can you read that first little
heading there beginning, "It is further ordered?"
A. "It is further ordered that for a period of five years
from the date of entry of this order, defendants shall deliver
copies of the order as directed below."
Q. All right. So the order was entered in 2004,
September 2004, right?
A. Yes.
Q. So in 2006 and 2007, that's within that five-year window,
right?
A. Yes.
Q. All right. So will you, in Section C, read to whom
Trudeau was required to provide this consent order by the
terms of the order?
A. In Section C?
Q. Yes.
A. "Individual defendant Trudeau as employee or non-control
person: For any business which Trudeau is not a controlling
person of a business but for which Trudeau, one, produces or
appears in an infomercial or other advertising, or, two,
provides any consulting services regarding infomercial or
advertising."
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Carrier - cross
417
Q. All right. So that the distribution of the order by the
defendants -- it was required by the consent order that
Trudeau distribute a copy of the consent order to ITV, is that
correct?
MR. KIRSCH: All right. Well, I'll ask it a
different way.
BY MR. KIRSCH:
Q. The order requires -- do you see that?
The order requires that Trudeau distribute to any
business that produces -- or for whom he appears in an
infomercial, right?
A. Yes.
Q. The order requires him to distribute the consent order to
any business for whom he appears in an infomercial, right?
A. Yes.
Q. All right. And you've already testified that the
infomercials at issue in this case were produced by ITV,
right?
MS. PERRY: Objection, Judge. Misstates the
testimony.
THE COURT: Ask the question.
MR. KIRSCH: Your Honor, at this time I would like to
read a stipulation.
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Carrier - cross
418
THE COURT: Sure.
MR. KIRSCH: Government Exhibit 5 is an accurate copy
of the September 2nd, 2004 consent order.
The parties agree that ITV had in its possession a
copy of this order through and including the period
December 23rd, 2006, to July 6th, 2007.
Stipulated and agreed this date, November 2nd, 2013,
signed by me and Mr. Trudeau and Ms. Perry and Mr. Krickbaum.
So stipulated?
MR. KRICKBAUM: So stipulated.
BY MR. KIRSCH:
Q. Now, I want to ask you about the stipulation that I just
read refers to the period December 23rd, 2006, to July 6th,
2007. Do you see that -- or do you recall the stipulation
that I just read?
A. Yes.
Q. Okay. Now, the period December 23rd, 2006, to July 6th,
2007, did that include the period in which time these three
infomercials that are at issue in this case ran?
A. Yes, it does.
Q. All right. So at the time the infomercials in this case
ran, ITV was in possession of the consent order that we've
been talking about, correct?
MS. PERRY: Objection, Judge. Beyond the --
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Carrier - cross
419
MR. KIRSCH: Your Honor, what's -- there's no legal
basis for the objection.
THE COURT: Well, there is. You're asking this
witness to testify as to something that she has no personal
knowledge of. That fact has been stipulated to by the
attorneys.
And I've already told the jury that if a fact is
stipulated to, they are to take it as being true for purposes
of this trial. But this witness has no personal knowledge of
it.
MR. KIRSCH: Well, your Honor -- I'll withdraw the
question, your Honor.
Your Honor, can I have one minute?
THE COURT: Yes.
(Brief pause.)
MR. KIRSCH: Your Honor, I now would like to read an
additional stipulation.
THE COURT: Proceed.
MR. KIRSCH: On June 16th, 2006, ITV Global,
Incorporated, pursuant to a stock purchase agreement, acquired
a number of assets in exchange for a $121 million promissory
note. The defendant signed the purchase agreement on behalf
of the sellers.
Pursuant to the terms of the purchase agreement, the
$121 million was supposed to be paid by ITV, with $1 million
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Carrier - cross
420
to the sellers or the sellers' designee at the time of the
deal, in $1 million installments due monthly to the sellers or
the sellers' designee beginning September 1, 2006.
Among other assets ITV acquired the exclusive right
to sell and advertise the defendant's books, Natural Cures
"They" Don't Want You to Know About and More Natural Cures
Revealed.
In addition, Alliance Publishing granted to ITV the
exclusive right to produce and market the weight loss cure
infomercial and to market and supply the weight loss cure book
through direct response channels, also known as infomercials.
The defendant anticipated making money based on the
stock purchase agreement in connection with the weight loss
cure book. At no point did ITV meet its payment obligations.
The parties agree that Government Exhibit 17 is a
copy of the stock purchase agreement and should be admitted
into evidence.
Stipulated and agreed this date, November 2nd, 2013,
signed by me and my client, Mr. Trudeau, and by Ms. Perry and
by Mr. Krickbaum.
So stipulated?
MR. KRICKBAUM: So stipulated.
MR. KIRSCH: Your Honor, I would move for the
admission of --
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Carrier - cross
421
MS. PERRY: Judge, can we be heard at sidebar,
please?
MR. KIRSCH: -- Government Exhibit 17, pursuant to
the stipulation that I just read to the jury.
MS. PERRY: Judge, can we be heard at sidebar,
please?
THE COURT: Sure.
(Proceedings had at sidebar:)
MS. PERRY: Judge, I did not make an order of proof
objection when Mr. Kirsch was reading stipulations that were
intended for his case in chief in our case in chief because I
don't make order of proof objections.
However, this stipulation is one that we had planned
to read at a specific time in our case in chief, and it is a
government exhibit that we plan to admit at a specific time.
For him to try to admit a government exhibit in the
middle of our case agent's direct examination is, frankly,
improper.
MR. KIRSCH: Your Honor --
MS. PERRY: Besides which, this witness does not know
anything about the stock and purchase agreement, so there is
no reason for him to be reading our stipulation and trying to
admit our exhibit.
MR. KIRSCH: Your Honor, the cat is kind of out of
the bag at this point. I mean, the government certainly can't
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Carrier - cross
422
sit there and allow me to read a stipulation which says the
parties agree that Government Exhibit 17 is admissible, and
then after I do it raise an objection and say, you can't do
it. I did it.
There's just no basis whatsoever --
THE COURT: What are you going to do with the
exhibit?
MR. KIRSCH: I'm going to show her one paragraph of
one page. It's going to take literally three minutes.
THE COURT: I'll sustain the objection. You can do
that in your case in chief.
MR. KIRSCH: Well, your Honor, then what I would do
is, I'll change the Government Exhibit 17 -- I'm sorry.
What I'll do is change the Government Exhibit 17 and
call it Defendant's Exhibit 17 and move to admit it as
Your Honor, I've read the stipulation. I can't -- I
mean, I've got -- I would have to recall her and ask the -- it
just --
THE COURT: You don't have to recall her. You can
publish the document in your case in chief. You can read it
to the jury. You don't have to call anyone because it's going
to be in evidence by stipulation.
MR. KIRSCH: Your Honor, I move to admit Defendant's
Exhibit 17, which is the stock purchase agreement. And there
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Carrier - cross
423
should be no objection to it if I call it Defendant's
Exhibit 17. It's a business record, and it is admissible
pursuant to 803(6), and they've already agreed to that.
THE COURT: No.
MS. PERRY: We will admit it before the defense case.
MR. KIRSCH: Your Honor, just so it's clear, is the
ruling that I'm not allowed to admit any exhibits during the
government's case in chief, or --
THE COURT: No.
MR. KIRSCH: -- is the ruling that I'm not allowed to
admit a government exhibit?
THE COURT: No. Neither.
The ruling is that this particular exhibit at this
point in time, your admitting it through this witness who has
no personal knowledge of it and cannot testify to it, no
personal knowledge, is not appropriate.
MR. KIRSCH: Your Honor, respectfully, this witness
has not testified to one thing in this whole trial that is
within her personal knowledge, not one.
THE COURT: Had you objected to some of those
questions, I probably would have sustained them.
MR. KIRSCH: But, your Honor, business records are
admissible -- the business record under 803(6) is
self-authenticated. I don't have to call a witness with
personal knowledge. That's the whole point of 803(6).
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Carrier - cross
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So I guess what I'm asking -- what I can do in front
of the jury --
THE COURT: The objection is as to the timing, when
you're doing it.
THE COURT: That's the objection.
MR. KIRSCH: Does that mean you will not allow me to
admit any exhibits during --
THE COURT: No. It means I won't allow you to admit
this exhibit.
MR. KIRSCH: I'll change it right now. I'll call it
-- I'll change it. I will admit Defendant's Exhibit 17.
That's what I'll do.
THE COURT: You can try that. If they object, I'll
rule.
MR. KIRSCH: Okay.
MR. KIRSCH: May I approach, your Honor?
THE COURT: You may.
BY MR. KIRSCH:
Q. I'm going to hand you -- Inspector Carrier, I'm going to
hand you Defendant's Exhibit 17. Do you see that?
A. Yes.
Q. All right. What is it?
A. It states stock and asset purchase agreement among TruCom
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LLC, TruStar Global Media, Ltd., Direct Response Associates
LLC and Shop America USA LLC and ITV Global, Inc.
MR. KIRSCH: Your Honor, pursuant to Federal Rule of
Evidence 803(6), I offer Defendant's Exhibit 17 into evidence.
MS. PERRY: No objection, Judge.
THE COURT: It may be admitted without objection.
MR. KIRSCH: DJ, you have Government Exhibit 17 and
now Defendant's Exhibit 17. Would you call that up, the first
page, please.
Oh, your Honor, can you switch to the computer,
please?
BY MR. KIRSCH:
Q. All right. Do you see what's now been admitted -- do you
see on the sticker there it says Government Exhibit 17 but
it's been admitted as Defendant's Exhibit 17?
Do you see that, Ms. Carrier?
A. Yes.
Q. That's the same document that you're looking at, right?
A. Yes.
Q. All right. And that's a stock and asset purchase
agreement, right?
BY MR. KIRSCH:
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Q. That's what it says, right?
A. Yes.
THE COURT: The objection is sustained.
BY MR. KIRSCH:
Q. I'll ask it a different way.
That's what it says, right?
A. Yes.
Q. All right. And it says at least one of the parties is ITV
Global, right?
A. Yes.
MR. KIRSCH: DJ, will you go to the next page?
BY MR. KIRSCH:
Q. All right. Do you see there the document indicates that
it was an agreement entered into on June 16th, 2006?
And then it says, by and among ITV Global and then a
bunch of other entities who are the sellers? Do you see that
in the first paragraph?
A. Yes.
Q. All right. It defines ITV as the buyer and then a series
of entities as the seller. Do you see that?
A. Yes.
Q. All right.
MR. KIRSCH: Can you go to Page 2 of the document?
BY MR. KIRSCH:
Q. And there's -- you can look at the physical document.
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Do you see Definitions that appear on that page?
A. Yes.
Q. All right. Page 3 of the document, More Definitions. And
then you see Paragraph 2 that says Purchase and Sale of
Shares. Do you see that?
A. Yes.
Q. All right.
MR. KIRSCH: Go to Page 4, DJ, please.
BY MR. KIRSCH:
Q. And do you see there Paragraph 3 says, Representations of
Warranties Concerning the Transaction, right in the middle of
the page, paragraph -- it says 3? Do you see that?
A. Yes.
MR. KIRSCH: Can you go to the next page, please, DJ,
Page 5?
BY MR. KIRSCH:
Q. And do you see down there Paragraph 4? It says,
Representation and Warranties Concerning the Purchased
Companies?
A. Yes.
MR. KIRSCH: Page 6, please.
BY MR. KIRSCH:
Q. And there's more paragraphs and representations on that
page, correct?
A. Yes.
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MR. KIRSCH: Page 7?
BY MR. KIRSCH:
Q. All right. And then do you see there No. 5, it says Post
Execution Covenants? Do you see that?
A. Yes.
MR. KIRSCH: And Page 6.
BY MR. KIRSCH:
Q. All right. On Page 6 -- or what -- that's Page 6.
Okay. Page 6, more representations, right?
MR. KIRSCH: Go to Page 7, DJ.
BY MR. KIRSCH:
Q. Page 7, do you see there it says, Post Execution
Covenants?
A. Yes.
MR. KIRSCH: Now go to Page 8, please.
BY MR. KIRSCH:
Q. And what I would like you to do is Page 8 -- or Page 8 --
do you see Paragraph 6 there that says, Regulatory Compliance?
A. Yes.
Q. All right. Now, the date -- will you look at the date
that the stock purchase agreement was entered into? You have
my copy up there; it's on Page 2 at the very top.
A. Yes.
Page 2?
Q. Yes. It's Page 1 of the document, right after the title
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page. Do you see that?
A. Yes.
Q. What date?
A. June 16th, 2006.
Q. All right. So the stock purchase agreement was entered
into months in advance of the infomercials that are the
subject of this case being run, right?
A. Yes.
Q. Pardon?
A. Yes.
Q. All right. And you see here on Page 6, right on Page 6 of
the stock purchase agreement, it says, "The parties
acknowledge and understand that Kevin Trudeau" -- and then
other entities -- "are parties to a stipulated final order for
permanent injunction and settlement of claims for monetary
relief that was entered on September 3rd, 2004, in the matter
Federal Trade Commission versus Kevin Trudeau, Case No.
03 C 3904, in the United States District Court for the
Northern District of Illinois, the consent decree."
Do you see that?
A. I see it, yes.
Q. All right. So the existence of the 2004 order was set
forth in plain language in the stock and asset purchase
agreement, correct?
MS. PERRY: Objection, Judge. The document speaks
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for itself.
MR. KIRSCH: Your Honor, I can certainly ask a
question about it.
THE COURT: The document -- at least I've never heard
a document speak, so I will overrule that objection.
But you need to establish some personal knowledge
that this witness has as to what you're asking about.
MR. KIRSCH: Your Honor, it's a business record.
THE COURT: If you're asking her what it says in the
document, she can testify to that.
MR. KIRSCH: That's what I'm asking.
THE COURT: She can look at it.
But if you're asking her that something actually
happened independent of the document --
MR. KIRSCH: No.
THE COURT: -- she can't testify to it because she
wasn't there, she doesn't know.
MR. KIRSCH: I'm not doing that.
I'll ask the question, your Honor.
THE COURT: Good.
BY MR. KIRSCH:
Q. All right. Defendant's Exhibit 17, are you looking at
that, Agent Carrier?
A. Yes.
Q. All right. That indicates right there in plain language
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that the consent order had been entered into on September 3rd,
2004, right?
A. I'm reading this paragraph and that's what it states.
Q. All right. It was disclosed right there in the stock and
asset purchase agreement signed in June of 2006, right?
A. Based on what I'm reading, that's what this states.
Q. And ITV, who produced and marketed the infomercials, was
one of the signatories to the stock and asset purchase
agreement. They were, in fact, the buyer, correct?
You can go back to the first paragraph if you would
like, the one that we highlighted.
A. Based on what that first paragraph states, ITV is listed
as -- that is correct -- that's what it states.
Q. I'm now going to go on to a new area.
THE COURT: It's a good time to break then. It's
4:35, so it's a good time to break for the day.
Ladies and gentlemen, we're done for the day. We
will resume tomorrow at 9:30.
I will leave you with all the usual admonishments:
Do not read, listen to or view any news articles or
information about this case. Do not speak to anyone about it
or allow anyone to speak to you about it.
Have a good evening. We'll see you tomorrow at 9:30.
(Jury exited the courtroom.)
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THE WITNESS: Thank you.
(Witness temporarily excused.)
THE COURT: I want to take a few minutes to talk
about the three jury instructions that I handed out earlier.
I assume you've all had an opportunity to read them by now.
MR. KIRSCH: Your Honor, I've read them but that's
it. I've been -- because during the break I was working on my
cross-examination.
I've read them but I -- I can -- your Honor, I'll do
whatever you want me to do.
THE COURT: Well, so take a few minutes to read them
and let's -- we'll recess for ten minutes and we'll come back
and we can discuss them.
(Brief recess was taken.)
MS. PERRY: Judge, we have no objection to these
instructions.
THE COURT: Defense?
MR. KIRSCH: Your Honor, the first -- we have a
couple of comments. The first instruction, your Honor -- I
think these were the instructions that we had talked about
last Friday at the pretrial conference. The first instruction
says, "The order to show cause charges the defendant." And
that should be changed to, "The defendant is charged with
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criminal contempt." So just a little change we discussed
before.
THE COURT: Yes.
MR. KIRSCH: And then on instruction two, we have no
problem at all, your Honor, with separating out the
misrepresentations. And we filed last night a -- an objection
to what the government had proposed as this jury instruction
and we had -- we filed, your Honor, as Exhibit A the
misrepresentations that the parties and the Court had agreed
upon in open court on November 1. So they say things such as
if -- it's document No. 138, Exhibit 1.
THE COURT: Well, first, let me just say, whatever it
is, it's not going to say the Court. I didn't agree with you
guys on anything. You may have agreed to exhibits. I don't
agree to those.
MR. KIRSCH: No, jury instructions. I think it was
what the Court had ordered on November 1.
THE COURT: All right. I see what you're saying.
MR. KIRSCH: And we'd be happy to file what we think
was ordered on November 1. But, for instance, it says,
statement -- I'm sorry. The second page of what you -- of
what the Court gave to the parties says, "The government
contends the defendant misrepresented the content of The
Weight Loss Cure book by making one or more of the following
statements or omissions in an infomercial."
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And then it says "stating or implying." And we
changed those to read "statements which indicate that." So we
don't want the word implying because that's not -- that's not
a misrepresentation. It should say "statements which indicate
that."
And I'm happy to -- I think in court what we did is
we went through and we cleaned all of these up. And I'd be
happy to file something tonight. I think our Exhibit 1 -- I'm
sorry -- our Exhibit A to document No. 138 contained those
bullet points that had been ordered in court.
Like another example is on the HCG point, which is on
page 3 of what the Court handed out, in the middle of that
paragraph, after the comma, it says "stating instead." And we
changed that to read "and/or statements that indicate."
THE COURT: Okay. So just submit a parallel --
MR. KIRSCH: I'll do it. No problem.
THE COURT: It doesn't have to be in the form of an
instruction. Just a parallel list --
MR. KIRSCH: We'll do it. We'll do it tonight.
THE COURT: -- with whatever --
MR. KIRSCH: Do you want me to send --
THE COURT: -- the changes are that you want. And
obviously if you send it to the government first, that would
be even better.
MR. KIRSCH: Sure. And do you want me to send it to
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the proposed --
THE COURT: No need. No need. That's all right.
You can just show it to me tomorrow morning. That would be
fine.
MR. KIRSCH: And then the third instruction that the
Court had proposed, which reads, "The content of a book is
defined as its substance, its essential meaning or the topics
and ideas contained in it as expressed through the combination
of many individual statements it contains," we object to that.
And, your Honor, I can elaborate on our objection.
But I just note that we filed document No. 138 last
night. And our objection No. 1 is essentially the same
objection -- you know, the Court has changed essentially what
the government has proposed as a supplemental instruction.
And our objection No. 1 addresses that.
THE COURT: There's a government's supplemental
instruction?
MR. KIRSCH: The government had filed a supplemental
instruction which was very similar to what the Court had
proposed.
THE COURT: Do you have it?
MR. KIRSCH: I have it. It says, "When determining
whether the content of a book has been misrepresented, you may
look to individual portions of the book, as well as the book's
essential meaning as a whole." It's part and parcel the same
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thing of what the Court suggested.
Your Honor, our objection to the proposed instruction
is -- as indicated here in my objection -- is that, your
Honor, the jury has to determine whether or not the order is
reasonably specific. This instruction elaborates on what is
in the order. The order says "misrepresents the content of
the book." It's for the jury to determine whether that order
and that phrase, misrepresent the contents of the book, is
reasonably specific.
If the Court gives them an instruction which further
defines what that means, I think that would be improper. I
think it's the jury's decision to determine whether what that
says is reasonably specific. If the Court says, I'm going to
help you in interpreting what that means, I think that's -- I
think the government is free to argue that to the jury; that
that's what it means, despite that's -- it's not what it says,
but it's what it means. And I'm free to argue that it's not a
reasonably specific order.
Now, your Honor, when we discussed this on Friday,
you said I can argue that anyway even with the instruction; it
doesn't matter. I mean, you're not curtailing my argument.
But I think by telling the jury that the content -- what the
content means, it's not in the order and it's an essential
element that the jury has to find; that it is a reasonably
specific order. And I think the Court is helping the
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government by providing an instruction that says let me help
you define what the order really means, even though that's not
what it says.
And that's my objection, your Honor.
MR. KRICKBAUM: We disagree, Judge. First of all,
the order is reasonably specific with or without this
instruction. It prevents Mr. Trudeau from misrepresenting the
contents of books in infomercials. That is reasonably
specific.
As to your proposed instruction -- or the Court's
proposed instruction, Judge, I think what Mr. Kirsch is really
getting at is that he does want to argue to the jury that
"misrepresent the content of the book" just means that you
have to accurately quote the book in the infomercials and
nothing more. And the Seventh Circuit has said that that is
wrong. And so I think he wants the jury to decide the case on
a -- on an incorrect interpretation of the order.
MR. KIRSCH: Your Honor, with respect to two things.
First of all, that is not going to be my argument. My
argument is going to be that he didn't misrepresent the book.
And, again, the Seventh Circuit's opinion affirming
Judge Gettleman's interpretation of the order is not at issue
here. It is not for Judge Gettleman or the Seventh Circuit to
interpret what Trudeau believed this order to mean. It is for
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this jury to decide whether or not this is a reasonably
specific order. Whether the Seventh Circuit believes it is or
isn't is irrelevant. It's an element of the offense that the
government has to prove to a jury beyond a reasonable doubt.
The Seventh Circuit -- if the whole en banc panel of the
Seventh Circuit said it is, it doesn't matter in a jury trial.
It doesn't matter. It's that simple. It is for the jury to
determine whether it's a reasonably specific order.
I'm not going to argue that it means "misquote." I'm
going to argue that it means "misrepresent the content of the
book." And if the government wants to define that for the
jury or tell the jury what it -- they think it means, then
they can do it. But it's argument. It's not -- it's not a
proper instruction.
THE COURT: Okay. Anything else?
THE COURT: All right. I'll review your arguments.
I think, frankly, that the court order that the defendant is
accused of violating is an agreement. It's an agreed order.
And like all agreements, it's subject to interpretation. The
fact that it's subject to interpretation does not mean that
it's not a reasonable order. It does mean that if the terms
are unambiguous, which the Seventh Circuit has held these
terms are, and even if the Seventh Circuit hadn't so held,
it's clear to me that they are, the terms of the agreement are
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unambiguous. Content of a book means the essential meaning,
topics and ideas contained in it. You can go to any one of
half a dozen dictionaries; it's just plain ordinary English.
And doing that is not elaborating on the order or the
meaning of the order. It is simply stating what the meaning
of the order is. That's what content means when it's
referring to the contents of a book. That's all. And the
jury is entitled to know that. It is the proper
interpretation of the contract. It is the contract the
defendant is accused of willfully breaching. But it has
nothing to do with willfulness. And you're conflating the two
when you cross your arguments. It's not what Mr. Trudeau
believed. It's what the order says, what his contract says.
Now, whether or not he proceeded in good faith,
whether or not he willfully violated that order, you can argue
that. And I think you have been arguing it essentially all
along to the jury with this interpretation of the contract.
But, clearly, the content of a book is the essential
meaning of that document, that book. That's what it means.
And I think the jury has to know that. They should be told
that. It's the appropriate way to interpret the agreement
between the parties. It's an unambiguous phrase. It's an
unambiguous term. And as such, there's no basis for the jury
to be determining as a question of fact what it is that the
order means.
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I will, however, review the arguments. I think you
previously argued with respect to this issue, but I don't
think you had previously argued to the Court that it somehow
encroached upon the first element, which is the reasonableness
of the order. I'll take a look at that. I don't think it's
going to make any great difference, but I will take a look at
that and see if there's any basis for rethinking the
determination.
Other than that, do you have any other objection?
(Brief pause.)
MR. KIRSCH: You're just asking any other objections
to these instructions, right, your Honor?
THE COURT: Yes, these three.
MR. KIRSCH: No, your Honor. And we'll submit
something tonight on what we had agreed upon in court last
week.
THE COURT: Okay. The first part states the three
elements. The second point you have bullet points with
respect to specific language. And the third part, the
objection is as to giving any instruction whatsoever with
respect to the meaning of the term "content of the book."
And the government has no objections to the proposed
instructions; is that correct?
MR. KRICKBAUM: Correct.
MS. PERRY: Correct. And, Judge, I just wanted to
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make clear, we filed document 129, which is what we believed
to be the full revised set as per all the different jury
instruction conferences.
THE COURT: Yes.
MS. PERRY: We did include in that a list where we
tried to do what Mr. Kirsch is suggesting should be done.
Your list is fine. We like our list as well. And we'll wait
to see what Mr. Kirsch proposes. But at that point there will
be then three different lists of the types of
misrepresentations.
THE COURT: Okay.
MR. KIRSCH: Your Honor, I do just have one question
though. Do you -- there's the unanimity instruction, which
the government had proposed as instruction No. -- it's --
there's no number. It's on page 18. And I expect you still
intend to give that?
THE COURT: Well, it's part of the second instruction
that I gave you, the last paragraph of that second
instruction.
MR. KIRSCH: Oh, I see. You didn't -- well, your
Honor, I think -- first of all, a couple of things.
At a minimum, the last sentence of this paragraph
that says, "To find the government has proven this, you must
unanimously agree as to which one of the statements or
omissions misrepresented the content of the book," I think at
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a minimum and as the pattern requires, we need to add, "as
well as all other elements of the crime charged."
THE COURT: Correct.
MR. KIRSCH: And then we had proposed and I think the
government had agreed to provide an example in the next
paragraph, which I think would still be helpful to the jury.
But I understand that that language -- at least I think -- the
government can correct me if I'm wrong. I think that language
is -- it's like bracketed.
MR. KRICKBAUM: Strongly suggested?
THE COURT: I think, again, you're looking at a
pattern jury instruction that's really aimed and directed at a
different scenario than what we have here, which is the proof
of the actual acts of the defendant as being elements of the
offense are at issue. And that's why that example might be
more appropriate.
In this case, that's not the issue, whether or not
the defendant stated or said these things. The parties have
agreed -- they stipulated to all of that. The issue is
whether or not any of these things violated the court order.
And I don't really think that an example in that regard is
helpful or necessary. I think it just further complicates the
order.
It's pretty clear that what the jury is being told is
that they have to find unanimously which of these, if any,
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statements or omissions that we've listed here misrepresented
the content of the book. Period. I don't know how much
simpler or clearer we can make it. If you want to propose an
example, I guess we can consider it. But we've got an
instruction that's already one and a half pages long, and
we're going to end up with two pages if we add an example.
And I don't think we're adding any clarity to it.
MR. KIRSCH: Well, your Honor, we could -- first of
all, we could break it into two instructions. But the example
is to demonstrate and to make it clear for the jury what
unanimity means. It has nothing to do with whether the
defendant acted or didn't act. It just tells them -- because
you're going to tell them anyway, you must unanimously agree
as to which one of the statements misrepresented the content
of the book.
THE COURT: You must agree unanimously as to which
one of the statements or omissions misrepresented the content
of the book.
MR. KIRSCH: Right. And then you're going to add "as
well as all the other elements of the crime charged."
THE COURT: That's absolutely correct. That has to
be added.
MR. KIRSCH: But then I think it would be helpful to
say and explain what unanimity means by saying, as we did in
document No. 129, page 18, "for example, if some of you were
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to find," and then -- and, your Honor, I can propose that to
the Court tonight with the other -- if you'd like, I'll
propose the second paragraph of the instruction if that's okay
with the Court.
THE COURT: Okay.
THE COURT: All right. Then tomorrow at 9:30.
MR. KRICKBAUM: Judge, there are -- we could use your
guidance on an issue for tomorrow. And, that is, there are a
number of people on the defense witness list, and I expect
that there will be disagreement about whether their testimony
is relevant. I understand from talking to Ms. Gurland that
several of them would be flying in from out of town to be here
tomorrow. And at least based on what I've heard so far, we
object to their testimony. So I think we could all benefit
from a ruling from the Court as to whether these are proper
witnesses or whether their proposed testimony is relevant.
THE COURT: Okay.
MS. GURLAND: Your Honor --
THE COURT: Who is coming in? Who is going to
testify as to what?
MS. GURLAND: I have -- there are five different
witnesses. And they were going to testify consistently with
what we discussed at the conference on October 28th. And just
to go back to that for a moment, there was -- it was in the
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context of our objection to the government bringing in an
expert dietician at all, a matter on which we filed a motion
and the Court denied the motion. And we were -- we raised
that at the hearing.
And at a certain point, Tom, Mr. Kirsch, said to the
Court, after -- the Court made a preliminary -- an indication
that it was going -- that -- because the Court believed that
it would be helpful for people to see what 500 grams of
protein looked like or what tofu looked like and then said you
would never eat it. But that what it looked like might be
helpful to the jury in deciding whether or not there was
portion control and whether or not it was a diet. And then it
became clear that the Court was suggesting that that testimony
might be helpful, at which point Mr. Kirsch said, "But more
importantly, we should be able to call people who have
actually done the protocol and who have the protocol, are able
to do it; they're able to comply with it. They found that --
they found the representation" -- and then he went on to say
that the representations in the infomercial were consistent
with the book. And the Court quickly said that they certainly
wouldn't be testifying to that; that the infomercial was
consistent with the book because that was for the jury.
But what the Court did say -- and this is a quote
from the -- it's page 202 of the status conference on
October 28th. The Court said, "I think you are free to call
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anyone who you can establish has sufficient knowledge to be
able to testify to those things." And that's referring to
what I had just read that Mr. Kirsch said. "And to anything
else in the book that the book describes that would tend to
make a person understand fully what regimen in the book is
with regards to whether or not it's a diet. You're entitled
to do that." And then the Court went on to say, "But to call
people to testify whether they believed the infomercial was
accurate or not, that's for the jury" and that we weren't
going to get to do that.
And so based on that discussion, I located a number
of people; but then, you know, put the list back to five, who
would be able to say that they -- some have or some haven't
seen the infomercial, which hardly matters because they're not
going to talk about the infomercial versus the book. No one
is going to talk about that. But what they would talk about
is that they had the book, they read the book, and what their
experience was of the various protocols in the book that we've
been talking about today.
I don't intend to go through and ask them
specifically all of the representations. I wouldn't have
someone stand up there and say, okay, is it portion control,
is it a diet. I wasn't planning on doing that. But what I
was planning on doing would be to ask them what happened, did
you do Phase 1, did you read it, which of the things did you
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do -- did you elect to do, could you get --
THE COURT: And the purpose of having these people
testify to that is to prove what?
MS. GURLAND: Well, I think it's to -- it's in answer
to what I think the point was of the dietician's testimony,
which is that if you look at what 500 calories looks like and
if you look at all of these various products -- we had two
group exhibits, you know, 9 and 10 with these cannisters, you
know, spread out in front of the witness. It would be to say
what their experience was of doing that. I guess to rebut
what I think the notion was of the dietician's testimony was
that really it was a diet and really it was portion control
and really it wasn't easy or simple or -- rather it was
something that, you know, not anybody could do.
And I think that what these people would talk to is
pretty much the same point; you know, did they buy these
things at the Vitamin Shoppe, did they use them.
THE COURT: Do you have a response?
MR. KRICKBAUM: Judge, I don't think this testimony
as it's been described rebuts anything that the dietician
testified to.
THE COURT: Well, I don't know that it has to rebut
it. The dietician -- you know, that's a question for you to
argue to the jury and for them to argue to the jury. The
question is, is it evidence that goes to the same issue.
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MR. KRICKBAUM: And I don't think -- I don't believe
it is.
THE COURT: Well, if the dietician had a picture of
what 500 grams of whatever looks like or 50 grams or a hundred
grams and these people want to come in and testify as to what
a hundred grams looks like to them --
MR. KRICKBAUM: Well, I --
THE COURT: It's similar to the cross-examination
that was done comparing what the dietician prepared with her
snapshot of what the piece of chicken looked like that was
called for in the book and asking her to compare the two so
that the jury could see that maybe they're not that different.
So if these people can come in and say, sure, I followed the
regimen and here's what I did every day.
MR. KRICKBAUM: But I don't see how that is relevant.
The issue is the content of the book, not what certain people
did after they read the book. And if someone is going to come
in I suppose with a photo of 100 grams of meat and publish
that to the jury, I suppose we don't have an objection to
that. A hundred grams of protein is a hundred grams of
protein. But if they're going to say, you know, I read the
book and then I did this, that or the other, I don't know what
that's relevant to. The issue is --
THE COURT: Well, when you had the dietician testify
as to what she had to do to get all of these things that were
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called for in the protocol, what was the purpose of that?
MR. KRICKBAUM: Well, she -- all she did was put --
put in the item -- put into evidence the items that are in the
protocol. So if they want to call someone to say these
products are available at many different stores, I can see how
that might be relevant.
THE COURT: They can do that. Or they can just call
in people to say, I was able to get the product at a store
five miles from my house or ten miles from my house; I didn't
have to go to another state. They can call people in to
testify as to what they physically did, their physical
experiences in following any of the described procedures in
the protocol because that's, I think, why you called the
dietician; is to put some meat behind what it meant to follow
the protocol, for the jurors to see it means you buy 15 of
these things, so that jurors could determine is it a diet, is
it simple.
MS. PERRY: Judge, here's the problem: Part of what
I think the witnesses will testify to is the effectiveness.
THE COURT: They can't testify to that. I want to be
very clear because I don't want people coming in here from far
away under a false impression. They can't testify as to
whether they followed the diet successfully. They can't
testify as to whether they lost weight. They can't testify as
to any of those things because those things are not relevant.
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MS. PERRY: Judge, some of the things that
Ms. Gurland mentioned was they were not hungry when they were
on the diet. Those types of representations we have a problem
with.
THE COURT: Yes. Yes. I'll -- well, let me think
about that one. So they're going to testify that they went on
the diet and they weren't hungry?
MS. GURLAND: Well, your Honor, it's just -- what I
was trying to do was to be very -- to hone very closely to
what the Court had said would be permissible from these
individuals. And it's whether they did the protocol, whether
or not they could do it, you know, what happened, and all --
whatever the Court tells me, I'll do but --
THE COURT: That last what happened is the problem.
The dietician was called to give some solid meaning to what it
meant to comply with some of the steps of the protocol;
purchasing the teas, purchasing the cleanses, doing all these
things, everything except I think the -- is it HCG, the
miracle substance.
MR. KRICKBAUM: Yes.
THE COURT: But just about everything, I think she
testified to. She said this is what it takes to prepare a
hundred grams of beef, this is what it takes to prepare a meal
according to -- these people can testify to the same thing.
They can testify to this is how I prepared a meal every day
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under the plan, these are the things I ate, these are the
portions, this is how I did it. Once you bring in evidence of
it, they can bring in some evidence too.
Now, how many people are going to testify to that?
And, more importantly, as long as it's understood that they're
not going to testify as to whether they liked the diet,
whether they thought it was effective, whether it harmed their
health, whether they felt revitalized and made anew, none of
those things. None of those things. We wouldn't let the
dietician testify to that. You made clear you didn't want the
dietician testifying to that; and these folks aren't going to
be able to do it either.
MS. GURLAND: Your Honor, I do have one question. I
think there's been a suggestion through the agent -- certainly
not through the dietician, but through the agent and through
quotations in the book that it was a misrepresentation by
omission not to have mentioned HCG in the infomercial and not
to -- and that there was a misrepresentation -- there's an
allegation that there was a misrepresentation to say that you
could get it anywhere. So one thing that I would like to ask
and I'd like the Court's guidance on is to be able to say, you
know, not did you like or what were your fantastic results,
but did you obtain HCG, did you obtain the substance and if
you did obtain it, how did you get it.
THE COURT: Do you have an objection to that?
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MS. PERRY: Judge, we do. And the reason is what
matters is what is in the book. The book makes certain
statements about HCG, whether or not it's legal, how you
obtain it. That is the only thing that matters, whether he
misrepresented the contents of the book, not whether people
had some other back channel way to get HCG that weren't
mentioned in the book.
For example, I know one of the people on the list
uses or sells an under-the-tongue type of HCG. That's not
mentioned in the book at all, an oral form. The only kind
that's mentioned in the book is the injectable form. And to
the extent that that is the only type of HCG that's mentioned
in the book, that's the only type that is contemplated by the
book. So it would not be appropriate for someone to come in
and say, oh, there's all these other forms that I found that I
used.
MS. GURLAND: Your Honor, that's not what I was
intending on doing. I was intending on sticking to what was
in the book, but asking people whether or not they could
obtain it because I think -- certainly there's been a -- I
mean, if the government says that in closing argument they're
not going to stand up in front of this jury and make an
argument that how could they possibly say it's inexpensive or
easy or simple when there -- when something that wasn't told
to you in the infomercial was that there was this magical
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substance and all of a sudden you've got to mix it up in a
potion and inject it into your body, if they're not going to
argue that that was a misrepresentation in some kind of way
because it was difficult to obtain --
THE COURT: Well, you're arguing different things
here; difficulty to obtain, manner of use. I take it that the
government's point with respect to the failure to mention the
specifics about the magic -- or I don't want to say magic
potion because it sounds like I'm being facetious, but I'm
not. The miracle substance, is that the phrase that was used
in the --
MR. KRICKBAUM: Yes.
THE COURT: That the miracle substance was actually
something that you had to get a prescription for and inject
into your body misrepresented an important element of what was
in the book -- I don't know. I have to think about that one.
I can see the argument that whether or not that's a willful
misrepresentation may very well hinge on how different the
experiences were, what was described in the book and what was
described in the infomercial.
MS. PERRY: And, Judge, here's why I don't think that
is the case --
THE COURT: Okay.
MS. PERRY: For every person that they have -- and we
filed a motion in limine on people's opinions about the diets
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and calling people who had done the diet. And here's the
reason: For every person that they can bring in who said, oh,
I found all this stuff, it was no problem, I totally got it, I
did it, here's how I did it, my doctor gave it to me, we can
find a person who did not, in fact, receive HCG from their
doctor, who could not find the products listed, who could not
accomplish the diet and all of the different steps under it.
And this is part of the reason for our motion is because the
floodgates open once you take this out of the realm of what is
in the book to what people actually experienced when they
tried to do what was in the book.
So what we're looking at is we would then want to
find our people who had a hard time finding those products and
our people whose doctors did not prescribe them HCG for
whatever reasons those were, because they were diabetics,
because they were on heart medication, because their doctor
just didn't cotton into HCG as an idea. Whatever those
reasons are, those then all become something the jury should
be considering, when really all that matters is what it says
about HCG in the book and what it says about how you would get
it.
MS. GURLAND: Can I say something? Respectfully,
when we're talking about -- when we start to get into
testimony like the dietician gave today, we -- so I agree if
you look just at the testimony that Agent Carrier gave in the
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case and Mr. Kirsch going back and forth that -- about the
representation and them lining up the content of the book, I
agree that that -- that's the issue there. But when -- when
we're talking about the dietician, at least my understanding
of what the government's argument is, is that they're going --
that the argument through the dietician is it's really not
about lining up the infomercial and the book, which is why we
were just talking about this instruction, right? It's really
about the essence or what you should take from the book is
that these four phases cannot possibly be described as being
inexpensive or not a diet or easy; that if you look at the
four phases -- and they argue that it's all four -- that it --
that no reasonable person could possibly feel that those four
phases were, you know, inexpensive or easy. And I think that
how they -- how they get there is to say that, you know, look
at all of these products that the -- that Mrs. Dobbins had to
buy and look how she spent $300, although they didn't get into
the receipt.
MR. KRICKBAUM: In fact, Ms. Gurland is the only one
who brought up the expense. We offered no evidence on that.
MS. GURLAND: But leaving that aside, we did have --
we did have a visual of all of these things that were in the
phases. And I think, although I'm not a soothsayer, but I
believe that what will happen in closing is not that the
government is going to say that the -- you know, that lining
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up the infomercial and the book, that that didn't work out; I
think what they're going to say is that the essence of this
book is the four phases and all the things that are required.
And I think they will then argue that, of course, you're going
to be hungry and deprived and probably you can't even find HCG
because God knows where you could get it and what even is it
and how do you do these injections and how awful and scary is
that. And I think if they're going to do that -- and they can
tell me if they're not -- but I think if they're going to do
that, it would be appropriate to have a real live human being
say, I did that, I did those things, here's how I did it. I
don't want them to say -- and the Court would be angry with me
if I did and I won't do it -- I won't have them say I liked
it, I loved it, I thought it was fantastic, I lost 60 pounds.
But I would like to have them say I did this thing, it wasn't
impossible and this is how I did it and that's all. The end.
MR. KRICKBAUM: Judge, we are not going to make the
arguments that Ms. Gurland just listed. We're not going to
argue, of course people must have been hungry because anyone
would be hungry if this is all they ate.
We're going to argue that in the infomercials, the
defendant said there would be no hunger and in many parts of
the book, he said there will be some hunger. We are not going
to argue that HCG must be really difficult to get. We've
offered no evidence about whether HCG is difficult to get,
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other than what is in the book. We are simply going to argue
that, according to the book, you can only get it from a
doctor; therefore, the statements in the infomercials that you
can get it anywhere are misrepresentations. And the omission
of HCG entirely from the infomercials is misleading because
it's an important part of the protocol in the book, according
to the book, not according to any other extraneous evidence.
We're not going to argue -- we've dropped any
misrepresentation claim based on the idea of this diet being
easy. We'll probably argue that it's not simple, in large
part because the book itself contains numerous contradictions,
as Ms. Gurland pointed out in her cross-examination today.
And we will argue certainly about --
THE COURT: Are you going to argue that it's not
simple based upon what the dietician said?
MR. KRICKBAUM: No.
THE COURT: Based upon the products that she lined
up?
MR. KRICKBAUM: No. We're going to argue that --
THE COURT: What are you going to argue?
MR. KRICKBAUM: About the products? That those are
potions, powders and pills. And the defendant said in the
infomercial there are no crazy potions, powders or pills that
are part of this protocol. That's our argument.
THE COURT: Well, if that's the case -- let me ask
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you another one. Are you going to argue from the dietician's
testimony that this is a diet?
MR. KRICKBAUM: Yes.
THE COURT: Based upon what?
MR. KRICKBAUM: Based upon the photographs of the
amount of food involved, we are going to argue that this is a
food consumption plan, a food limitation plan. And based on
any -- in order to lose weight. And based on any ordinary
reasonable understanding of what the word diet means, this is
a diet.
MS. PERRY: Additionally, Judge, there are whole
categories of food groups that are left out completely, like
carbohydrates.
THE COURT: Different topic, I think.
So if they're not going to argue that the infomercial
misrepresents how difficult it is to get the miracle substance
but merely misrepresents what the book says about how
difficult it is to get the miracle substance, why would it
matter whether it was difficult or easy or in between in
reality?
MS. GURLAND: I think it was -- I mean, at least what
I took away from the opening statement because I think that
what Mr. Krickbaum said in the opening statement is that it
wasn't really about whether or not the infomercial -- that the
book is misquoted in the infomercial. And then the whole --
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the whole opening statement was about Phases 1 through 4.
Right? It was contrasting the representations made in the
infomercial, not with the content of the book, your Honor, but
it was -- the opening statement was to make clear to the jury
that you were going to have to contrast the infomercials with
Phases 1 through 4 and what Phases 1 through 4 was.
And so I guess I -- what -- and then taking my cue
from what was said on October 28th when the Court said, you
know, if you're going to have a dietician talk about the
portions and show this kind of thing, taking my cues from
that, I, you know, located people -- and I didn't know what
the scope was, but I'll respect the scope -- just to talk
about what -- what their -- what their experience was. And I
think their experience of the protocol, if the protocol is at
issue and if what the government is arguing is that it is the
facts about the protocol that makes -- that makes
Mr. Trudeau's statements in the infomercial false, it's not
lining up the book with the infomercial. It's lining up
Phases 1 through 4 of the book.
THE COURT: Well, that's what they're saying they're
not going to do. And if they try to do that in their closing
arguments, you can certainly object and hopefully I will
sustain your objection. But if they're not going to argue the
true difficulty of obtaining HCG --
MR. KRICKBAUM: There's no evidence on that, your
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Honor. We would have no basis to argue it. And it's not
relevant.
THE COURT: And if they're going to base their
argument on the HCG -- strictly on what it says in the book
and what it says in the infomercial, actual experience in
obtaining that product becomes irrelevant, as it should
technically be.
The question is, did they bring it into relevance by
calling the dietician to testify. She clearly did not talk
about -- she wasn't asked about HCG. So as to that, no.
My second concern was with the argument that they
were going to use the experiences of the dietician to argue
that the diet was not simple. If that were the case, then I
think you would be allowed to introduce evidence to indicate
other people's experiences in obtaining the things required
for the diet to argue that it is simple. But they're saying
they're not going to do that.
MS. GURLAND: But, your Honor, to a certain extent,
they already have. Right? Because Ms. Dobbins made a big
point to tell me from the stand today that she couldn't get --
she couldn't get the organic meat at the first place she went
to. She had to go to two different places to find --
THE COURT: I think you asked her that though, didn't
you, on cross?
MS. GURLAND: It was on cross-examination.
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THE COURT: Yes. They didn't bring it up. You did.
You can't use what you brought up to widen the scope of their
case.
MS. GURLAND: But the pictures that they showed were
what it was to have organic -- organic produce.
THE COURT: Sure. But she didn't testify on direct
examination that it was difficult to get.
MS. GURLAND: She didn't say the words difficult, but
I think that the gist of what -- that what we did -- I mean,
we talked about that she went to three different stores.
THE COURT: But that -- I disagree.
And at any rate, they can't argue it. The person
that brought out the fact before the jury with respect to how
many stores she had to go to and did they carry it or not
carry it or did they just carry it but not have it, that was
you on cross-examination. That was not them. You can't use
that as an argument to boost now the scope of the evidence you
want to bring in to rebut what you brought out. You can't do
that.
MS. GURLAND: I understand, your Honor. But I do
think that the idea of having Ms. Dobbins come with products,
which clearly all happened on direct, and to line them up in
front of her and it showed, you know, a whole pile of things,
I think that the import of that was to suggest to the jury
that the misrepresentation that the government believes that
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Mr. Trudeau made was when he said I guess any number of --
either that it wasn't inexpensive or that it wasn't -- because
it clearly implies --
THE COURT: And --
MS. GURLAND: And forget -- it implies --
THE COURT: And I agree with you that if they're
going to attempt to argue that from that evidence, you can
rebut it. But they made it clear to me now, and they will be
held to it, that the only thing they're going to argue from
that is that when Mr. Trudeau said in the infomercial no
potions, no this, no that, that that's not so; that there's a
whole list of them.
MR. KRICKBAUM: And, Judge, there's one other
misrepresentation that's relevant, although if you tell us we
can't argue the second one, then we won't. And it's when he
says in the infomercials that you have to take the HCG along
with a few other little things. And our argument will be that
the products that were lined up on that witness chair were not
a few other little things. But I don't think -- if your Honor
rules that that opens the door to a number of additional
witnesses, we simply won't make that argument. We'll stick
with the potions, powders and pills.
THE COURT: I don't know. Do you want to respond to
that?
(Brief pause.)
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MS. GURLAND: Yes. I just didn't want to interrupt
your Honor's thinking on the issue.
I guess my response is that I feel like -- and I'm
going to back and say I wish I had instant recall so I could
think of everything that was said in the opening statement.
But the opening statement left me with the clear idea that --
you know, that what was being done was to say that a few other
little things -- you know, that it was completely inconsistent
with that; that they had to buy any -- any of the things from
the list, all those things that we saw stacked up there this
morning. And I guess that I think that it -- if they want to
make that argument, I think it would be fair for me to have
somebody say, here's -- you know, here's what I did out of
this list. You know, I took the Phase 1 list. These are the
things that I did. These are the things that I didn't do.
Not how I felt about it, but what I did and what I didn't do.
If it's the few other little things, I mean, who can say that
other than someone who did it?
THE COURT: I think if you're going to argue a few
other little things -- you had a witness testify as to a large
number of things that were included in the book. There is
some factual issue as to whether all of those were required or
whether some were just highly recommended. There were several
other phrases.
MR. KRICKBAUM: Strongly suggested.
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THE COURT: Gradations that I'm not all that familiar
with. But if you're going to argue that, I guess if you have
someone who can come in and say that he or she did the
protocol but only purchased these three little things, you can
have them come in testify to that and line up their three tiny
little things to show that it is just a few other little
things.
MS. PERRY: But, Judge, would that person be saying
then that they went and did something other than what was in
the book? Because it would be irrelevant.
THE COURT: Well, that depends on what the jury
decides the book actually said you had to do.
MS. GURLAND: No, they had --
THE COURT: We have plenty of evidence back and forth
as to what exactly the book said the protocol was. Is it just
this bare-bones thing? Is it everything in the bullet portion
summary of the book?
MS. PERRY: But how would that person --
THE COURT: Does it really matter? You can certainly
argue that it doesn't really matter whether the book says it
was required or highly recommended or just suggested. This is
what the book described. This is what the infomercial
described. And the two things are different, and there's the
misrepresentation. You can make that argument as well.
But once you start -- if you're going to use her
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465
lineup of things to indicate to the jury that what the book
described -- or what the infomercial described is a few other
little things is really this massive amount, then they have a
right to bring in physical evidence to rebut that as well.
MS. PERRY: I guess the question is what knowledge
would that person have besides what's in the book?
THE COURT: What knowledge did your dietician have
besides what's in the book?
MS. PERRY: None. That's the point. The dietician
simply read the book. She didn't do any of those.
THE COURT: And I assume that if you're going to
argue, I read the book and this is what I think the book
required me to buy and I went out and bought these things and,
look, it's a lot of things; it's not a few small ones, they
can have someone come in and say, I read the book, these are
the things I think the book required me to buy and, look, it's
a few tiny little things, just like it says in the
infomercial. So if you're going to make that argument, then
that much, they can bring in.
MS. PERRY: All right. Assuming we don't make that
argument, I'd just like to clarify. The book has a lot of
different numbered lists. Can we still argue, without opening
the door, that those are not a few other little things? That
the 50 things in Phase 4 --
THE COURT: You can argue anything in the book.
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MS. PERRY: Okay.
THE COURT: You can argue anything in the book, as
can they.
MR. KRICKBAUM: Then we will not make the argument --
we will not put the physical exhibits in front of the jury,
you know, the boxes of pills in front of the jury and say this
is not a few other little things. We're not going to make
that argument.
THE COURT: You can put the boxes and the pills in
front of the jury to rebut the fact that he said there were no
potions, there were no --
MR. KRICKBAUM: Yes.
THE COURT: To the extent that you're arguing those
are potions, those are things he said -- for that, you can use
them. But to argue the quantity, I think, at that point,
you're subject to having it rebutted.
MS. PERRY: Okay.
MR. KRICKBAUM: We will not offer the argument that
the physical evidence shows that these are a few other little
things.
MS. GURLAND: So is the -- is there -- given the
representations about -- I guess, your Honor, I'm troubled by
the fact that what the government says that they're going to
do now in closing, I have no doubt they're going to do exactly
what they said; I have no reason to doubt it. However -- and
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I know that they'll be careful to do it because they don't
want anything to change about what our understandings are now.
But to a certain extent, the bell has already been rung.
Again, I wish I had more perfect recall of the opening. But
the opening, I think, already left me anyway with a very
strong impression that what was being challenged was the
reality of Phases 1 through 4, rather than the content of the
book.
THE COURT: Well, my response to that is, first, that
if that's the case, you ought to have objected when the
opening statements were being made.
MS. GURLAND: But --
THE COURT: Because that really isn't relevant. How
difficult or how easy it actually is isn't really relevant.
The relevance is how difficult does the book say it is and how
easy or difficult did the infomercial say it was. And you
have been very careful -- in fact, you asked me and I did give
an instruction to the jury as the actual evidence was coming
in to make sure that the jury understood that that was the
issue.
MS. GURLAND: Of course, your Honor.
THE COURT: Not the actual reality of doing the
things.
MS. GURLAND: Exactly. Although, at the time that
the opening statements were made and because of the conference
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that was on October 28th in which what was said was that they
were going to have a dietician and they could testify to, you
know, the things that she testified about, just -- I mean, it
happened just exactly as the government described it was going
to happen. And at the end of how the government described
that on October 28th, the Court said you'd be able to bring in
somebody to say these things. And so I think that -- I mean,
it was partially based on that because the whole time, these
people are on my witness list that the government had and I'm,
you know, developing that testimony. So my not objecting in
the opening, in addition to it's generally considered a little
rude and you try not to out of professional courtesy, but
beyond that, I mean, I really believed at that point in time
that we were going to be able to have these witnesses that
were on our witness list that the Court said could come in and
talk about the things they were going to talk about -- I
thought that was going to happen.
THE COURT: Okay.
MS. GURLAND: So that was part of the basis for not
objecting.
THE COURT: But it's not really part of the case.
MS. GURLAND: But it was discussed that it would be
part of the case in our pretrial conference where we
anticipated that we were going to do exactly -- I mean,
specifically that.
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THE COURT: Well, I don't recall that. But if that's
the case, then all I can tell you is that motions in limine in
pretrial conferences are all based upon what we expect is
going to happen during the course of the trial. And if things
happen differently, then those rulings no longer apply. They
are all provisional rulings. I think I said that during the
final pretrial conference. And I tell you again, we make the
best provisional rulings we can make.
At this point in time, the testimony that's been
elicited from the dietician does support the arguments that
the government says they're going to make based upon that
testimony. And the arguments they say they're going to make
based upon that testimony does not open up as relevant actual
experiences of people who did the protocol.
Had the dietician's testimony been -- were they to
argue that the dietician's testimony was to show what actually
doing the protocol according to the book was like, then you
could clearly have someone else come in and testify what
actually doing the protocol according to the book was like for
them.
MS. GURLAND: How would that happen, your Honor, just
as a mechanical manner? So now we've gotten to the end of our
case, the government's rested, we've rested --
THE COURT: You haven't rested.
MS. GURLAND: No, no. I don't mean now. I'm looking
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470
ahead to closing argument. So what if this happens in closing
argument --
THE COURT: What happens?
MS. GURLAND: In closing argument they make some of
these arguments that we've talked about would open the door
for me to call in people about their experience. What do we
actually do?
THE COURT: Well, you would say objection, Judge, and
I would say sustained; the jury is to disregard that. The
government knows that's not an argument they're allowed to
make. The jury will not consider it. Does that answer your
question?
MS. GURLAND: Yes, your Honor.
THE COURT: And if you make the objection and they
step over the line, that's exactly what I'll do.
They've made representations to me here as to the
purposes for which they've introduced this specific evidence.
The evidence supports those arguments. It could support the
argument you're claiming that they intend to make as well.
They're saying they're not going to make it. If they're not
going to make it, then the rebuttal evidence that you want to
introduce is not relevant. If they've misrepresented that to
me, they'll be sorry.
MS. GURLAND: I understand, your Honor.
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MR. KRICKBAUM: No. No, your Honor.
MR. KIRSCH: Your Honor, can we talk about what's
left in this trial --
THE COURT: Sure.
MR. KIRSCH: -- just from the standpoint of --
THE COURT: You never want to tell me. I keep asking
you what you're going to do for a defense. You keep saying,
I'm not ready, Judge; I'm not ready.
MR. KIRSCH: I know, I know. Well, I'm trying to
figure out whether I need to stay up all night tonight.
That's what I'm trying to figure out.
Tomorrow morning I have about -- I think probably
about ten minutes of cross-examination left of the
government's witness. And then I think -- is that the end of
the government's case?
MS. PERRY: My redirect will probably be about
20 minutes at this point. And then we have two stipulations
to read.
MR. KIRSCH: So let's say maybe an hour of additional
government testimony and then they'll rest. And then, your
Honor, it's now about quarter to 6:00, and I know by tomorrow
we're going to have to make a decision as to whether or not
the defendant is going to testify. And we're going to have to
consider the Court's rulings and decide whether or not we're
going to call any witnesses and what they may testify to and
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we'll have to do that tonight. And then I suspect we'll have
to see a final version of the jury instructions and go through
the jury instructions, which I think, your Honor, will take us
at least past the lunch hour by the time we get done with the
evidence and the jury instructions.
So my question is -- and, your Honor, if you can't
answer it or you're not going to answer it, I understand. But
I'm just trying to figure out whether I need to stay up all
night to prepare a closing argument to deliver tomorrow
afternoon.
THE COURT: I don't know. You're asking me to
predict how long everything is going to take tomorrow. And I
know less about the variables that go into that than you guys
do. I don't know what their 20 minutes of redirect is really
going to be like and I don't know what recross is going to be
like after 20 minutes of redirect. I don't know how many
doors she's going to open on redirect, if any, that's going to
expand your recross. I don't know what your ten minutes of
cross-examination really is going to be. And I don't know how
much, if anything, those ten minutes will add to her redirect
and on and on and on. I don't know if your client is going to
testify. If he does, I don't know how long he'll testify. I
don't know how long they'll cross. I don't know the
variables. You know the variables better than I do. I can't
tell you if you're going to need to do your closing argument
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tomorrow or not.
I can tell you folks this: I scheduled this trial a
long time ago, a long time ago. I continued it because you
rightfully said they came to you with new materials too close
to the time of the trial. So you all had more than sufficient
time to prepare everything. That's the best I can tell you.
MS. PERRY: One thing I would like to raise, Judge,
depending on how many doors get opened in the defense case, it
is possible, if not likely, that we will need to put together
a government's rebuttal case. So that's another factor that
is just an unknown at this point.
But one of the exhibits that I believe they intend to
admit, for example, is the refund policy from ITV. And that
was in their opening statement. You may recall from the
pretrial conference when we talked about refunds, I gave a
whole list of things that we thought would become relevant if
they admitted evidence that people were able to get refunds,
specifically including the fact that people were not able to
get refunds when they tried. So we have people who would be
flying in to say I tried to get a refund under ITV's policy; I
couldn't do it.
MR. KIRSCH: We've not put in any argument or
evidence that anybody could get a refund. We put in the
refund policy and said that refunds were available pursuant to
the policy. That's it.
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Now, if the government wants to get into that, we're
going to get into customer satisfaction and we're going to get
into all kinds of issues. The government made a motion in
limine with respect to refunds.
THE COURT: Wait just a second.
MR. KIRSCH: Sure.
THE COURT: Let me get my notes. I didn't bring
those notes out. Just give me a second.
(Brief pause.)
MR. KIRSCH: Your Honor, I don't -- just so the Court
knows, I wasn't prepared to argue these things. I don't have
any of these papers here with me.
THE COURT: Okay.
MR. KIRSCH: So --
THE COURT: We'll let you argue whatever else you
need to argue when you do have your papers with you. But I'm
out here now with this.
MR. KIRSCH: I understand. But, your Honor, my
argument is, I'm not sure if the government is suggesting now
based upon what I said in opening statement that they intend
to -- or they intend to call in rebuttal that there were
people that tried to get refunds that couldn't. Because if
that's the case, if they -- and I don't know if they intend to
do that in their rebuttal case. That's not the argument that
I made. We can go back to the transcript on the opening
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statement. I very, very carefully followed the Court's order.
That would open up all kinds of doors and that would allow me
to call in my defense witnesses who did get a refund. And,
your Honor, I would have to have time to find those witnesses
to testify. It's now 6:00 o'clock or ten to 6:00 on the
Thursday night before the close of evidence and the government
is indicating for the first time that it intends to call in
its rebuttal case a witness that tried to get a refund and
couldn't do it. And I very carefully did not argue that
customers got refunds. I never said that. I was very careful
in the PowerPoint presentation, and the Court can review it.
THE COURT: Here are my notes: So as I understand
it, neither side objects to evidence coming in through the
infomercial that there was a refund offered. Neither the
defendant nor the government plans to introduce how much money
was refunded, how many refunds were actually made. If the
defendant testifies as to the availability of the refunds, the
government will cross-examine him and challenge the
availability of the refunds. At which point, it's all opened,
folks.
MR. KIRSCH: Correct.
THE COURT: Okay. That's what you folks argued and
my ruling was I agree with all those statements.
MR. KIRSCH: And I haven't done that, your Honor.
And all we've done is put in the policy and said there was a
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policy. And the government didn't object to that policy.
We've agreed that comes in as a business record pursuant to
the Court's earlier ruling.
THE COURT: That's not what you said in the final
pretrial conference. What you said -- what both sides said is
that you didn't have an objection to the fact that there was a
policy of refunds coming in through the infomercial. I
remember that specifically because I remember the government
saying, Judge, we don't have an objection to that; it's going
to be in the infomercial; if it comes in that way, we have no
objection to it.
MR. KIRSCH: Your Honor --
THE COURT: And you said okay.
MR. KIRSCH: Your Honor, I think we specifically
talked about the document and provided a copy of the document,
the policy itself. And that's all I've argued. I've only
said -- and Trudeau says --
THE COURT: I don't have that in my notes, but if you
have -- do you have the transcript?
MR. KIRSCH: I don't have it here with me, your
Honor.
THE COURT: Well, look at the transcript and see.
If, in fact, you said I'm going to introduce the policy and
they didn't object or I said you can, then you can.
MR. KIRSCH: Well, your Honor, we've already -- the
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parties have agreed that -- pursuant to our agreements on the
evidence, the parties agree that the policy is coming in
evidence. And I don't think they have any objection to the
policy coming in evidence.
THE COURT: Do you have any objection to the policy
coming in evidence?
MS. PERRY: Judge, we don't have an objection to the
policy coming in. We just think it opens the door to all the
evidence that we listed before about it not really being real.
MR. KIRSCH: But that's -- your Honor, that's not
what was agreed upon. And like I said, the first time that
we're hearing this --
THE COURT: Those are my notes. I don't have a
transcript. Those are my notes. I write them out and then I
go back and I type them up. Those are my best notes. If you
have evidence, you have something to show that that was not
what you argued and that was not the ruling of the Court and
that you did not open the door then by going beyond the
infomercial, bring it to me and I will certainly consider it.
THE COURT: But that's the best of my recollection
now.
MR. KIRSCH: I understand, your Honor. And I just --
if the government -- maybe the government will tell us tonight
whether they intend to do this or not. But based upon the
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admission of the policy, which is going to come in evidence,
if they intend to call a witness in a rebuttal case that they
didn't or couldn't obtain a policy, then I would ask for time
at the close of their case to locate a witness in our defense
who will testify that they did obtain a refund pursuant to the
policy. And, your Honor, I would need some time to do that.
I couldn't do that tonight and prepare for my other witnesses,
prepare the defendant, make a decision as to whether he's
going to testify and prepare closing argument.
So that's why I asked, if the evidence ends tomorrow
at 10:30 or 11:00, if the close of the case is at 11:00 a.m.
tomorrow, what -- I guess we don't know what we're going to do
at this point.
THE COURT: I don't know.
MR. KIRSCH: Okay. I understand.
THE COURT: I don't know.
MR. KIRSCH: I understand.
THE COURT: Okay. Tomorrow at 9:30.
(Trial adjourned until November 8, 2013, at 9:30 a.m.)
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* * * * *
/s/ Joseph A. Rickhoff November 8, 2013
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(312) 435-6890
480
EASTERN DIVISION
)
Plaintiff, )
)
v. ) No. 10 CR 886
)
) November 8, 2013
Defendant. ) 9:50 o'clock a.m.
VOLUME 4
APPEARANCES:
MS. APRIL M. PERRY
Suite 500
(312) 353-5300
(312) 558-5600
Attorney at Law
17th Floor
(312) 420-9263
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481
THE CLERK: 10 CR 886, United States of America vs.
Trudeau.
MR. KRICKBAUM: Good morning, your Honor, Marc
MR. KIRSCH: Good morning, your Honor, Tom Kirsch and
Carolyn Gurland for the defendant.
Are we ready to proceed?
MS. PERRY: We are.
MR. KRICKBAUM: Yes, your Honor.
THE COURT: Okay.
The witness.
(Brief pause.)
(Jury in.)
As always, we are glad to have you back.
Proceed.
Your Honor, can I have the Elmo turned on -- the
source as the Elmo -- your Honor, please?
CROSS-EXAMINATION - Resumed
BY MR. KIRSCH:
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Carrier - cross
482
Q. Good morning, Inspector Carrier.
A. Good morning.
Q. Do you recall -- before I move on to my last topic, I just
want to ask you a question regarding your testimony yesterday.
Do you recall that I asked you a couple of questions
regarding whether the book, The Weight Loss Cure book,
excluded any type or category of people from doing The Weight
Loss Cure protocol?
Do you remember I asked you that?
A. Yes.
Q. And do you remember you said there might have been
something about vegetarians in the book, but you couldn't
remember exactly what was referenced in the book?
A. There's something in the book regarding vegetarians.
Q. All right.
I'm going to show you --
MR. KIRSCH: Well, your Honor, it looks like the
screen is not on.
My screen is on here (indicating).
THE COURT: That might be a problem.
(Laughter.)
MR. KIRSCH: I heard a click.
THE COURT: Let us see.
MR. KIRSCH: Well, there's a green button on this,
your Honor, that's flashing. So, maybe it's warming up.
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Carrier - cross
483
There it is.
THE COURT: And here I thought it was my fault.
(Laughter.)
BY MR. KIRSCH:
Q. Okay.
I'm going to show you, Inspector Carrier, Page 147,
which is in the "Frequently Asked Questions."
Do you see that?
A. Yes.
Q. All right.
Now, down at the bottom of the page, do you see where
the question says, "What if I'm a vegetarian?"
A. Yes.
Q. All right.
Will you read the answer?
A. "If you are a vegetarian and cannot do the diet in Phase
2, that it is advised that you do not do the Phase 2 Simeons
protocol of diet and HCG. Instead, do the Turbo Protein Diet
as your Phase 2, available at www.almased.com."
Q. All right.
So, does that -- was that what you were referring to
when you said there might have been something about
vegetarians in the book?
A. Yes.
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Carrier - cross
484
THE COURT: Yes.
BY MR. KIRSCH:
Q. Inspector Carrier, I'd like to hand you what's been marked
for identification as Defendant's Exhibit 5.
Do you see that document?
A. Yes.
Q. Okay.
What is that document?
A. It states on the side, "ITVM" -- "ITV Return Policy."
MR. KIRSCH: Your Honor, we move to admit, pursuant
to Rule 803(6) Defendant's Exhibit 5.
MS. PERRY: Judge, we have no objection to this
particular exhibit, but this witness has no personal knowledge
of this exhibit.
THE COURT: So, the question is: Did you object to
the admission of the --
MS. PERRY: Not the admission, no.
THE COURT: The document may be admitted in evidence.
(Defendant's Exhibit No. 5 received in evidence.)
Your Honor, I'd ask that it be published to the jury
and I ask that the source be turned to our computer.
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485
BY MR. KIRSCH:
Q. All right, Inspector Carrier, is that the document that
you have in front of you?
A. Yes, it is.
Q. And do you see at the top of the page it says, "Note:
This is a copy of our return policy. A return policy is
included with every order."
Do you see that?
A. Yes, I do.
Q. All right.
And, then, do you see on the left-hand side of the
page in big writing it says, "ITV Return Policy"?
Do you see that?
A. Yes.
Q. All right.
MR. KIRSCH: Now, DJ, can you blow up the first
paragraph of that document, please?
BY MR. KIRSCH:
Q. Inspector Carrier, on the copy you have in front of you, I
have highlighted that paragraph, if it's easier for you to
read it from the paper; but, will you please just read that
paragraph to the jury?
A. "Your ITV product purchase comes with a 30-day money back
satisfaction guarantee that starts upon delivery of this
shipment. If you are not completely satisfied with your
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Carrier - cross
486
purchase, contact our Customer Satisfaction Department at
1-987-299-2298, Monday through Friday, 8:00 a.m. to 8:00 p.m.
EST."
Q. And that stands for Eastern --
A. Eastern Standard time.
Q. -- Standard Time, right? Okay.
Now, I'd like to show you a few of the infomercial
transcripts that had been admitted into evidence. It seems
like a while ago that the infomercials have been played. So,
I should just show you the transcripts.
MR. KIRSCH: DJ, can you please pull up Government's
Exhibit 2-A and just the first page?
BY MR. KIRSCH:
Q. Okay, Inspector Carrier, do you see at the top of this
document it indicates that this was The Weight Loss Cure
infomercial that aired on January 8th, 2002?
A. 2007.
Q. I'm sorry, 2007.
A. Yes.
Q. All right.
And do you remember this was the one with Don Barrett
and Kevin Trudeau and it had that little global that said,
"ITV-TV" on it?
A. Yes.
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Carrier - cross
487
Can you please pull up Lines 25 and 26?
Can you blow those up?
BY MR. KIRSCH:
Q. All right.
Inspector Carrier, do you see in that transcript I've
underlined there on the screen, "Unconditionally guaranteed,
of course."
Do you see that?
A. Yes.
Q. And that was something that Trudeau said while he was
speaking to Don Barrett of ITV during that infomercial in
January, 2007, correct?
A. Yes.
Q. All right.
MR. KIRSCH: DJ, can you now please highlight Line
27?
Pull up Line 27 from that same transcript.
BY MR. KIRSCH:
Q. All right.
Do you see there the words that I have circled --
A. Yeah.
Q. -- on that page: "If you're not thrilled, send it back"?
A. Yes.
Q. And that's in the very next line after Trudeau tells the
listeners that the book was "unconditionally guaranteed, of
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488
course," right?
MR. KIRSCH: Can you pull up Lines 25 and 26?
BY MR. KIRSCH:
Q. If you want to see any other lines, by the way, just tell
me.
A. Okay.
Q. If you want a copy of the transcript, tell me. I will
provide it to you.
A. It's easy to read on here. Thank you.
Q. Okay.
So, my question was where Trudeau says, "If you're
not thrilled, send it back," is right after he tells the
listeners that it's "unconditionally guaranteed," right?
A. Yes.
Q. Okay.
Let's go to Page 10 of that same transcript.
MR. KIRSCH: DJ, can you pull up Line 29, please?
Can you move it up a little bit.
BY MR. KIRSCH:
Q. There, do you see, again, the speaker is Trudeau?
Do you see that on Page 10 --
A. Yes.
Q. -- of that same exhibit, 2-A?
And he, again, says that the purchase is
unconditionally guaranteed, right?
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489
A. Yes.
Q. Let me show you a couple other examples.
MR. KIRSCH: Can we go to Exhibit 3-A, please?
And, DJ, can you just show the first page?
Okay.
BY MR. KIRSCH:
Q. This was Infomercial No. 3, which was recorded on July
6th, 2007.
Do you see that?
A. Yes.
Q. Do you recall that infomercial where Kevin Trudeau is
sitting on a couch and talking to a woman who had identified
herself as Chloe Marshall?
A. Yes.
Oh, you know, what? You've got to start on Page 9 --
10 -- I'm sorry.
BY MR. KIRSCH:
Q. So, on Page 10, do you see here that Kevin Trudeau is the
speaker?
A. Yes.
Q. All right.
MR. KIRSCH: And, then, DJ, please go to the next
page, Page 11.
BY MR. KIRSCH:
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490
Q. So, at Page 11 he continues speaking -- the pages go from
Page 10 to 11 -- but there's no doubt that it is Trudeau who
is the speaker on Page 11, right?
A. Yes.
Q. At least down to the bottom where, at the very bottom of
the page, Chloe Marshall chimes in, right?
A. Yes.
Q. All right.
MR. KIRSCH: DJ, can you please pull up Line 10?
And can you just move that up a little bit, Lines 9
and 10?
Okay.
BY MR. KIRSCH:
Q. Do you see there where Trudeau, again, says that the
purchase is unconditionally guaranteed?
A. Yes.
Q. All right.
MR. KIRSCH: DJ, can you just leave that up and pull
up Lines 13 and 14?
BY MR. KIRSCH:
Q. So, right after Lines 9 and 10, he continues. And do you
see where he says -- first he says -- "I say in the book,
that's right out of the book."
And, then, he said, "If you're not thrilled, send it
back for a refund."
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491
Do you see where he says that?
A. Yes.
Q. Now -- all right.
Then do you remember during this infomercial he talks
about if you buy The Weight Loss Cure's book for 14.95, he's
going to send you two other books that he had written -- The
Natural Cures "They" Don't Want You to Know About and More
Natural Cures Revealed -- for free, except you have to pay the
cost of shipping.
A. Yes, I do recall that.
Q. All right.
MR. KIRSCH: So, DJ, can you go down to Line 35 and
36? Can you pull those up.
BY MR. KIRSCH:
Q. I've put those on the screen in front of you there.
And do you see where Trudeau says, "And keep all the
gifts. If you send this back, by the way, keep all the gifts
free. Keep them. Just keep them. 14.95, you can't go
wrong."
Do you see where he says that?
A. Yes.
Q. All right.
MR. KIRSCH: DJ, now let's go to Page 16 of that same
transcript, Government Exhibit 3-A.
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492
All right.
BY MR. KIRSCH:
Q. All right. We're now on Page 16 --
MR. KIRSCH: You know, you've got to go to Page 15
first, I'm sorry. Identify the speaker.
All right.
BY MR. KIRSCH:
Q. At Page 15, I want you to identify the speaker on the
bottom of the page.
Who is that?
A. Kevin Trudeau.
Q. All right.
Then on to the next page, Page 16, is Trudeau still
speaking?
A. Yes.
MR. KIRSCH: All right, DJ, will you pull up Lines 26
and 27, please?
All right.
BY MR. KIRSCH:
Q. Do you see there during this same infomercial Trudeau
says, "Call right now. And if you're not thrilled, send it
back for a full refund."
Do you see that?
A. Yes.
MR. KIRSCH: Your Honor, can I approach the witness?
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493
THE COURT: Sure.
MR. KIRSCH: Can I get that document back?
THE WITNESS: Sure.
MR. KIRSCH: DJ, can you show Defendant's Exhibit 5,
please, and pull up that first paragraph?
All right.
BY MR. KIRSCH:
Q. And what Trudeau said on the infomercial -- those examples
that I just showed you -- is consistent with what is contained
from the ITV return policy, correct?
A. Yes. He states, "You can get" -- "You can get a refund."
Q. Okay.
"If you're not completely satisfied," right?
A. Yes.
MR. KIRSCH: Your Honor, can I just have one moment?
THE COURT: Yes.
(Brief pause.)
MR. KIRSCH: Your Honor, no further questions.
THE COURT: Redirect?
Can I use the Elmo, please?
THE COURT: You may.
REDIRECT EXAMINATION
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494
BY MS. PERRY:
Q. Inspector Carrier, I'd like to start with this refund
policy.
Do you have a copy of it up on the stand with you or
no?
A. No, I can see it on the screen.
Q. All right.
Well, let me try to zoom in as best I can.
All right. So, let's start at the bottom of the
page.
According to the bottom of the page, if you want to
reorder something from ITV, there is an 800 number; is that
right?
A. Yes.
Q. Is that generally considered a toll-free number?
A. Yes.
Q. All right.
But if you want to return something, is that a 1-800
number or is that a toll number?
A. A toll number.
Q. All right.
And then it says right here (indicating) -- can you
please read that paragraph that I am pointing to?
It starts, "You MUST" in all caps.
A. "You MUST call the Customer Satisfaction Department and
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495
ask for a Return Authorization RA number."
Q. All right.
And are you allowed to return the book if you do not
get through to someone at Customer Service and get an RA
number, according to this paragraph down here (indicating)?
A. No.
MR. KIRSCH: Your Honor -- your Honor -- objection as
to whether or not you're permitted to do it. She can read the
document, but I think the government lawyer made a big deal
out of saying she doesn't know anything about it. I think she
can read it, but she can't --
MS. PERRY: According to this --
MR. KIRSCH: That's my objection.
THE COURT: I will sustain the objection to the form
of the question, although I will note I did not see the
government attorney make any big deal about anything.
Go ahead.
BY MS. PERRY:
Q. Can you please read this paragraph right here
(indicating), which refers to whether or not you are allowed
to return an item without an RA number?
A. "Do not return an item without an RA number."
Q. All right.
And let's talk about if you do want to return it.
Can you please read this paragraph right here
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496
(indicating) that starts, "Return shipping costs"?
A. "Return shipping costs are the responsibility of the
customer."
Q. And, specifically, is there a method by which this
document recommends that you ship the package?
A. "We recommend using UPS or insured mail to ensure your
package is received by us, as we are not responsible for
returns that never arrive to our facility."
Q. And, additionally speaking, several of the portions of the
transcripts that Mr. Kirsch directed you to talked about
shipping and handling charges being added on to the purchase
price.
Can you please read this paragraph -- or this portion
of the return policy -- regarding whether or not you ever get
those back?
A. It states, "Shipping and handling charges are
non-refundable."
Q. All right.
And just one more section I'd like to direct your
attention to.
Can you please read this section regarding whether
ITV has monthly replenishment programs?
A. "One or more of the products enclosed may be on our
Monthly Replenishment Program which -- "
Q. Go ahead and read that whole thing.
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497
A. " -- which qualifies you for substantial savings. Your
invoice will clearly indicate if you have agreed to
participate in the Monthly Replenishment Program. Within 30,
60 or 90 days, depending on the program that you ordered, your
credit card or checking account will be charged and your next
order automatically shipped to you."
Q. Thank you, Inspector Carrier.
I'd like to now go back to the beginning of Mr.
Kirsch's cross-examination, which was several days ago. So,
let me direct your attention, please, to Defense Exhibit 2,
which is the chart that he admitted; and, specifically, the
first and second page of that chart regarding, "The protocol
is not a diet."
Can you please tell me how many quotes on there
Mr. Kirsch put on for portions of the book that say, "The
protocol is not a diet"?
A. Four.
Q. All right.
And let's look at the second quote on Pages 36 and
37. And feel free -- do you have the book up there with you?
A. No, I don't.
(Brief pause.)
BY MS. PERRY:
Q. I'm going to hand you Government Exhibit 4 and ask you to
look at Pages 36 and 37.
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498
BY MS. PERRY:
Q. Specifically, the paragraph from Mr. Kirsch's chart, and
whatever portions around that you need to answer this
question.
And the question is: In that paragraph, does the
defendant ever say his weight loss cure is not a diet or is he
referring to other diet programs?
A. He's referring to other diet programs.
Q. All right.
So, in terms of quotes that actually talk about The
Weight Loss Cure not being a diet, there are three on this
chart; is that right?
A. Yes.
Q. And all of those quotes appear before what page in the
book?
A. 73.
Q. All right.
And, specifically, what's the last page number from
any of these three quotes?
A. Sorry, 40.
Q. All right.
So, why does Page 73 matter to you?
A. Because that's the chapter where the protocol is actually
discussed.
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499
Q. All right.
So, let's talk about what happens after Page 40.
I'm going to direct your attention to Page 96.
(Brief pause.)
MS. PERRY: All right. Here we go.
We're having some technical difficulties.
BY MS. PERRY:
Q. All right. On Page 96, is The Weight Loss Cure protocol
referred to as a diet?
A. Yes.
Q. All right.
On Page 97, is the Weight Loss protocol referred to
as a diet twice?
A. Yes.
Q. Let's go to Page 98.
How many references do you see on Page 98 to whether
or not this is a diet?
A. Three.
Q. On Page 99, how many references to whether or not this is
a diet?
A. One.
Q. Page 103, please. How many references to whether or not
this is a diet?
A. One.
Q. Page 117, please. How many references do you see there to
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500
whether or not this is a diet?
A. Four.
Q. Page 119, how many references do you see to whether or not
this is a diet?
A. Three.
Q. Page 122, how many references to whether or not this is a
diet?
A. Three.
Q. Page 129, does it call this a diet at least twice?
A. Yes.
Q. Page 130, how many references to whether or not this is a
diet?
A. Three.
Q. Page 131, does it call it a diet, again?
A. Yes.
Q. Page 133, does it call this a diet?
A. Yes, two times.
Q. 141, please.
Does it call this, again, a diet?
A. Yes.
Q. 147.
And let's talk about the vegetarian section briefly.
If you are a vegetarian, it refers you not to this
particular diet, but to what other diet?
A. The Turbo Protein Diet.
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501
Q. And is that diet described anywhere in this book?
A. No, it is not.
Q. 150, does it call this a diet, again?
A. Yes.
Q. 186, please.
Do the testimonials also call this a diet?
A. Yes.
Q. 189.
Are there more references to this being a diet?
A. Yes.
Q. 210, does the defendant refer to the Simeons protocol as a
very strict and specific diet?
A. Yes, it does.
Q. And, again, on 211 --
A. Yes.
Q. -- is there one reference to diet?
A. Yes, it does.
Q. And, finally, on 219, if you cannot do this particular
diet, does the defendant, again, refer you to a different book
with a different diet?
A. Yes, the Turbo Protein Diet.
Q. All right.
So, on 20 pages of the book, about -- it does, in
fact, state, "The Weight Loss Cure is a diet;" is that right?
A. Yes, it does.
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502
Q. In addition to that, do you recall how many calories
you're allowed to eat during Phase 2?
A. 500.
Q. All right.
So, let's go ahead and talk about the permanent cure
part of the chart.
In Defense Exhibit 2, I believe there were eight
pages that refer to this as a permanent cure; and, then,
Mr. Kirsch also asked you about Phase 4 being required or
recommended.
So, let me ask you this: Directing your attention to
Page 141, if you do want this to be a permanent cure, what
does Page 141 say about what you need to do to avoid gaining
the weight back?
A. It states, "If you follow the dos and don'ts in Phase 4,
the weight should never return."
Q. And, then, continuing on to that answer on Page 142, does
it then repeat that idea, that if you follow the steps in
Phase 4, you should be able to keep the weight off forever?
A. Yes.
Q. Do you recall, if you wanted to get rid of cellulite,
whether Phase 4 is required or recommended?
A. It's required.
Q. All right.
And let's look at Page 163, which, I believe, Mr.
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503
Kirsch directed you to.
If you want to wipe out food cravings, do you need to
do Phase 4?
A. Yes, you do.
Q. All right.
Let's look at Mr. Kirsch's chart with respect to
exercise, which starts at Page 11.
All of the references on Page 11 of this chart -- and
it goes on to Page 12, all of the references -- to not needing
exercise come before what page in the book?
A. Before Page 54.
Q. Okay.
So, all of them are before Page 54.
And that's, again, before all the specifics about
what is actually required by the weight loss protocol are
mentioned?
A. Yes.
MR. KIRSCH: Objection. Leading.
Ask the question in another way.
BY MS. PERRY:
Q. What page are all the specifics of the diet weight loss
cure mentioned starting at?
A. 73.
Q. Okay.
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504
So, let's look here at the summary section.
According to this, in Phase 1, is exercise required?
And this is Page 213.
A. Yes, it is.
Q. All right.
According to Phase 3 on Page 220, is exercise
required?
A. Yes, it is.
MR. KIRSCH: Your Honor -- nothing.
BY MS. PERRY:
Q. And directing your attention to Page 224, is exercise
required here for Phase 4, as well?
A. Yes, it is.
Q. Let's talk a little bit about deprivation. And I'm going
to direct your attention to that section on the defense chart,
which I believe begins at Page 17.
Can you please look through these quotes and tell me
whether most of them discuss whether or not you will feel
deprived or whether there is actual deprivation on the diet?
A. It states, "No feelings of deprivation. You will not feel
deprived. Never having to deal with willpower deprivation."
Q. All right.
So, there's one that just talks about deprivation
specifically; but, do the rest all talk about feelings of
deprivation, to the extent that they mention deprivation at
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505
all?
A. Can you repeat that? I'm sorry.
Q. Sure.
Do most of these quotes refer to feelings of
deprivation or actually being deprived?
A. Feeling deprived -- feeling deprivation.
Q. Okay.
Now, let's look at your quotes from the infomercials
in the column right next to it.
Do most of those talk about feelings of deprivation
or actual deprivation of food?
A. They state, "No deprivation."
Q. Okay.
Directing your attention to Page 94 of the book. And
this is the section that discusses what you can eat during
Phase 2.
Look through this if you need to, but let me ask you
this: Based on your reading of the book, during the 21 days
in Phase 2, are you allowed to eat any bread products
whatsoever?
A. No, you are not.
Q. For the 21 days in Phase 2, can you eat any dairy products
whatsoever?
A. No, you cannot.
Q. For the 21 days in Phase 2, can you eat anything sweetened
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506
with any sweetener of any kind?
A. Stevia.
Q. And is that in Phase 2 or does that pop in later in the
book?
A. It is later.
Q. All right.
So, let's talk about Phase 3. Directing your
attention to Page 99.
For the 21 days of Phase 3, are you allowed to eat
any breads, pastas or starches of any kind?
A. No.
Q. And for the 21 days of Phase 3, are you allowed to have
any sugar products or artificially sweetened products of any
kind?
A. No.
Q. All right.
Let's talk a little bit about HCG.
Mr. Kirsch talked yesterday about how the defendant
said, "I call it a miracle, magical substance," and
specifically highlighted the quote, "I call it."
Do you remember that portion of your cross-
examination?
A. Yes.
Q. Does the defendant ever call it in the infomercials a
prescription drug?
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507
A. No, he does not.
Q. Does he ever choose to call it a substance that must be
injected through the fat layers of your buttocks into your
muscle?
A. No.
Q. All right.
Now, directing your attention to the chart, two of
the quotes that I see here from the infomercials are that,
"HCG is easy to get" and that "You can get it anywhere."
Can you please look through the quotes from the book
that Mr. Kirsch put on this chart and tell me if any of these
say that HCG is easy to get in the United States or that you
can get it anywhere?
MR. KIRSCH: Your Honor, I'm going to object to the
extent that she's asking for a characterization of -- I object
to the form of the question, to the extent it asks for a
characterization.
MS. PERRY: I can clarify.
THE COURT: Overruled.
MS. PERRY: Okay.
BY THE WITNESS:
A. No, it does not.
BY MS. PERRY:
Q. All right.
And, in fact, if you look at Page 22 of the chart, at
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Page 116, it's the third quote on there. The chart says,
"People around the world have easy access to HCG under the
supervision of a medical doctor," and then there's a period.
And I'm going to go ahead and put Page 116 up, and
I'm going to ask you to read the full sentence, which begins
with the phrase, "It is ludicrous."
A. "It is ludicrous that people around the world have easy
access to HCG under the supervision of a medical doctor and
are fully able to do the Simeons weight loss cure protocol and
Americans must continue to suffer."
Q. And, specifically, with regard to whether or not this is
an easy substance to get, I'd like to direct your attention to
Page 21 of the defendant's chart.
What is the question asked on that very first quote?
A. "What if I cannot get HCG and cannot do Phase 2?"
Q. All right.
I'd like to now move on to this, "You can eat
anything you want" section of the chart, which begins at Page
25 of Defense Exhibit 2.
How many of the quotes from that particular
section -- and it goes all the way to Page 27 -- how many of
those quotes come before Page 73, where the protocol actually
tells you what you can and can't eat?
A. Six of the eight.
Q. All right.
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So, let's go to the last two of the eight, which are
on Page 27.
Do those two quotes that come after the time where
we're actually talking about what you can eat, do those say
you can eat anything you want or do they contain within the
very quote themselves some kind of caveat about what can be
eaten?
A. In the paragraph on Page 106, it states, "You can only eat
100 percent organic food"; and, in the last quote, it states,
"You can eat all of the foods listed. The key is reading the
ingredient list."
Q. Okay.
And, then, lastly, I'd like to talk to you about
this, "Anybody can do the protocol," which begins at Page 29
of Defense Exhibit 2.
And is it accurate to state that this section of the
chart does not actually contain quotes from the book that
match up with the quote from the infomercial?
A. Correct.
Q. All right.
So, these are just additional statements from the
infomercial; is that right?
A. Yes.
Q. Okay.
So, let's talk about what the book has to say about
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who can and cannot do this.
We already talked about the vegetarians. Let me go
ahead and direct your attention to Page 95.
Is one of the requirements of Phase 2 that no
medicine or over-the-counter, non-prescription drug should be
taken?
A. Yes.
Q. All right.
And does the defendant estimate in the book anywhere
what percentage of people currently take medications or
over-the-counter drugs?
A. 70 percent.
MS. PERRY: No further questions, Judge.
THE COURT: Recross.
RECROSS EXAMINATION
BY MR. KIRSCH:
Q. Inspector Carrier, I have a question for you about the
references to "diet" in the book.
Do you remember you went through several questions of
"diet" in the book?
A. Yes.
Q. All right.
Will you tell the ladies and gentlemen of the jury
how many times the protocol is described as a cure in the
book?
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A. I don't know -- I don't have a specific number.
Q. You never added that up?
A. No.
Q. You looked for all the times that the protocol was
described as a diet in the book, correct, in preparing for
your redirect examination?
BY MR. KIRSCH:
Q. You testified on redirect examination that -- to many
places in the book where the word "diet" is, right?
A. Yes.
Q. But you didn't think it would be important to look for the
references in the book to a cure?
A. It's not that I didn't think it was important. I did not
count how many times "cure" was stated.
Q. Well, you didn't do it, right?
A. No, I did not.
Q. I'm not going to go through every one of these, but I want
to go through a few of them.
First of all, take a look at Page 29 of my chart.
And I think counsel for the government asked you about the,
"Anybody can do it" reference there. Do you see that on Page
29?
I think it's 29 of Defendant's Exhibit 2.
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A. Okay.
Q. Do you see that?
A. Yes.
Q. And, then, she asked if I had any text from the book
corresponding to that, right?
A. Yes.
Q. But the quote doesn't say, "Anybody can do it," right?
The quote says, "I believe anybody can do it," right?
A. Yes.
Q. And you were in here when I read the stipulation about
views and opinions, right?
A. Yes.
MR. KIRSCH: Your Honor, may I have the computer
turned on, please?
BY MR. KIRSCH:
Q. By the way, when I cross-examined you regarding my
Defendant's Exhibit 2 chart, do you remember I asked you if
those were some examples of what had appeared in the book?
A. Yes.
MR. KIRSCH: DJ, can I have Infomercial No. 2,
Defendant's -- I'm sorry, Government's -- Exhibit 2-A.
Just show the first page there.
BY MR. KIRSCH:
Q. All right. This is the infomercial, do you remember, on
January 8th, 2007?
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A. Yes.
Q. And you were asked some technical questions on redirect
examination. So, I just want to show you, as example, Page 5
of that Exhibit 2-A.
And I just call your attention to Page 9.
I'm sorry.
MR. KIRSCH: DJ, no, the same page, Page 5, Line 9
and Line 17.
BY MR. KIRSCH:
Q. Do you see that's Trudeau speaking there on Line 9 and
Line 17?
A. Yes.
Q. Your questions on redirect seemed awfully technical. So,
I'm going to ask you: Here in the infomercial he said, "other
diets," right?
A. Yes.
Q. And "other diets," "other" would mean other than The
Weight Loss Cure protocol, right?
A. Yes.
Q. I want to ask you now --
MR. KIRSCH: DJ, you can take that down.
BY MR. KIRSCH:
Q. All right. I want to ask you now about your testimony
regarding exercise.
Do you remember your testimony regarding exercise;
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and, then, counsel for the government showed you Phase 1 and
Phase 4 where it said, "Walk outside"?
A. Yes.
Q. No exercise actually appeared in the book, right?
A. Can you repeat that?
Q. No exercise actually appeared within the content of the
book, right?
A. Yes, it did.
Q. It's just your testimony that it wasn't in the right
chapter?
MS. PERRY: Objection. That misstates her testimony.
THE COURT: It is argumentative, as well.
MR. KIRSCH: I will ask it another way.
BY MR. KIRSCH:
Q. She asked -- you were asked by counsel for the government
where it appeared, right?
A. We read different parts of the book.
Q. Well, you were asked by the government lawyer where the
"no exercises" phrases appeared in the book, right?
Do you remember you were asked that question?
A. Yes. Before Page 73, yes.
Q. And, then, you were asked where did they appear before
Page 73, right?
A. Yes.
Q. So, you were distinguishing some chapters of the book from
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other chapters of the book, right?
A. Yes. The chapters before the protocol is actually
discussed.
Q. All right.
But you don't dispute that it actually appears in the
book, do you?
A. No.
MR. KIRSCH: And, DJ, can I pull up just the Table of
Contents from the book, please.
That's Government Exhibit 4.
BY MR. KIRSCH:
Q. All right. You just testified that Page 73 is after -- or
Page 73 begins to discuss -- The Weight Loss Cure, right?
A. The actual steps that are involved in the protocol, yes.
Q. All right.
But you see Chapter Four, Chapter Three, Chapter One;
do you see that?
A. Yes.
Q. It's all discussing Dr. Simeons' Weight Loss Cure, right?
A. It discusses the cure, in general. It doesn't give the
exact steps that must be taken.
Q. Right.
But just so it's clear, there's only one cure
discussed in this book, right, and it's The Weight Loss Cure?
A. He discusses it throughout the book, yes.
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Q. All right.
Do you have any reason to think that "Cure," "Cure,"
"Lose 30 pounds in 30 days," in Chapters One, Three and Four
refer to anything other than Dr. Simeons' Weight Loss Cure
protocol?
A. He is discussing The Weight Loss Cure protocol in those
chapters, yes.
Q. All right.
And, then, you were asked some questions about HCG.
And I don't think this was on my chart.
MR. KIRSCH: Your Honor, can I go to it?
Oh, you know, what? I'll just use Page 252, please.
BY MR. KIRSCH:
Q. I don't think this one was included on my chart, but I'll
show it to you now?
MR. KIRSCH: And, DJ, can you pull up the top of the
page, please, that say, "Clinics that use HCG and Simeons
Weight Loss Cure," I need that whole paragraph -- just the
paragraph -- that begins, "Every doctor and clinic."
I need the heading, too.
Thank you.
BY MR. KIRSCH:
Q. Do you see that, "Clinics that use HCG and Simeons Weight
Loss Cure protocol"?
A. Yes.
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517
Q. And do you remember you were asked some questions on
redirect examination about the statement in the infomercial
that, "Anybody can get it"?
A. Yes.
Q. All right.
Did you read this part of the reference section of
the book that says, "Every doctor and clinic that I talk to,
that uses HCG and the Simeons protocol, have requested that
their names not be mentioned in the book. However, they are
available at www.naturalcures.com"?
A. Yes.
Q. Are you familiar with that part of the book?
A. I read it.
Q. But you testified yesterday you never went to
naturalcures.com, did you?
A. No.
I believe it's a restricted Web site, too.
Q. Restricted from the federal government in a criminal case?
Is that your testimony, that you couldn't access the
Web site?
A. Well, you can access it for a fee. You can get on to the
page, I believe.
Q. All right.
Is your testimony that you didn't go to the Web site
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because you were somehow physically unavailable to access the
Web site?
A. That is not why.
Q. All right.
And you saw that the -- in the infomercial several
times -- I can go back to the transcripts, if you want me to,
but I'll just ask you the question, to see if you remember.
Do you remember when Mr. Trudeau talked about people
buying the book, they were receiving a free 30-day
subscription to that exact Web site, www.naturalcures.com?
Do you see that? Do you remember that?
A. He states that in the infomercial.
Q. All right.
And that -- at least according to the book, that --
Web site will list doctors and clinics that use HCG as a
weight loss -- part of a weight loss -- protocol, correct?
A. That's what this states, yes.
MR. KIRSCH: Your Honor, may I have just a minute?
THE COURT: Yes.
(Brief pause.)
MR. KIRSCH: Your Honor, I have no further questions.
MS. PERRY: No further questions.
(Witness excused.)
MS. PERRY: We have two stipulations, Judge.
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THE COURT: Proceed.
MS. PERRY: "Alliance Publishing was the company that
published the book, 'The Weight Loss Cure They Don't Want You
to Know About.'
"Alliance Publishing agreed to allow Perseus Books
Groups to supply The Weight Loss Cure books to retailers.
Pursuant to that agreement, Perseus was obligated to pay
Alliance a royalty for each book sold.
"By November 30th, 2007, Alliance Publishing Group
received more than $4.5 million in royalties based upon its
sale of the book, The Weight Loss Cure. Alliance Publishing
was obligated to pay the defendant 65 percent of those
royalties. The defendant did not receive all of the money
that was owed to him from Alliance Publishing."
MR. KIRSCH: Yes.
MS. PERRY: "Mercury Media is a company that
maintains records regarding the broadcasting of various
television programming. If called to testify, a custodian of
records from Mercury Media would testify that infomercials for
The Weight Loss Cure ran approximately 30,000 times from
December 15th, 2006, through December 31st, 2007."
So stipulated?
MS. PERRY: The government rests.
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THE COURT: Defense?
MR. KIRSCH: Your Honor, may we take our morning
break at this time? There may be some administrative things
that we want to tend to.
THE COURT: Oh.
MR. KIRSCH: I can talk to you outside the presence
of the jury, if you would like; or, we can a just take our
morning break.
THE COURT: Well, we have not been taking a morning
break, but we will take one today.
We are taking a morning break, ladies and gentlemen.
(Laughter.)
MR. KIRSCH: I'm just so used it to it, your Honor.
I'm sorry.
THE COURT: Not here, you are not.
(Laughter.)
(Jury out.)
THE COURT: We are going to recess for five minutes
and then I will come back out and attend to your
administrative issues.
(Brief recess.)
MR. KIRSCH: Your Honor, just two real brief issues.
Rule 29 -- we want to make a Rule 29 motion. We can
argue that at any time, but I just wanted to make the record
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that we wanted to make the motion.
And the second thing is, your Honor, we are not going
to call any witnesses and the defendant is not going to
testify. And, so, I wanted to -- I didn't know if it was --
before I rested my case, I didn't know if it was -- this
Court's practice to have some discussion with the defendant
about his constitutional right to testify and whether he's
waived that right.
So, that's the only reason I asked for the short
break, your Honor.
THE COURT: Okay.
MR. KIRSCH: That's it.
THE COURT: So, we are done with the evidence?
MR. KIRSCH: We're done the with evidence, your
Honor.
THE COURT: You could not tell us this last night?
MR. KIRSCH: Well, I did. I told the government,
your Honor, last night. I sent them an e-mail.
THE COURT: The government? Why did you not tell me?
MR. KIRSCH: Your Honor, I'm sorry. I thought when
we talked about closing arguments, that I said I might have no
evidence. And after the Court -- your Honor, after the Court
-- ruled --
THE COURT: You asked me if I had any idea whether we
would go to the jury today. And I told you that that
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depended --
MR. KIRSCH: Right.
THE COURT: -- upon several variables, most of which
you guys knew more about than I did.
And one of the biggest variables was: How much
evidence are you going to introduce in your case? How many
witnesses? Will your client testify?
And you specifically told me at that time that you
weren't prepared to say at that point in time.
If you knew, why did you not just tell me? I mean,
the jury did not have to come in today for this.
MR. KIRSCH: Your Honor, I'm very sorry. It was a
misunderstanding on my part. But if I can explain to the
Court, your Honor, we didn't make a decision as to not -- we
had five witnesses lined up to testify. And the government
knows this and they know who they were.
It wasn't until after the Court ruled at 6:00 o'clock
on whether certain testimony was admissible, that we made the
decision that we weren't going to call any of those five
witnesses.
THE COURT: Why did you not let us know?
MR. KIRSCH: Your Honor, I'm sorry. We didn't make
that decision until 7:00 o'clock. And I did let the
government --
THE COURT: 6:00 to 7:00.
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MR. KIRSCH: Your Honor, as soon as the decision was
made -- I will just tell you after court at 6:00 o'clock, we
left, we went back to Winston & Strawn. We had a long
conversation. The defendant decided he was not going to
testify.
I sent an e-mail to the government immediately.
But I think you got the e-mail around --
MS. PERRY: Well, I don't remember what time we got
it.
MR. KIRSCH: -- 7:30, or something like that. I sent
them an e-mail right away informing them.
But, your Honor, that's when the decision was made.
And I am very sorry. What I was -- your Honor, what
I was -- suggesting was that we might only have a short period
of evidence. And that's why I had thought that maybe it would
be better if we took today off.
But, your Honor, if I mis- -- I'm sorry. I'm tired
and if I misstated that or somehow misinformed the Court, I
did not mean to have the jury come in --
THE COURT: Mr. Kirsch, I have to be here every day
anyhow.
MR. KIRSCH: I know.
THE COURT: And thank God they pay me.
MR. KIRSCH: I know. It's the jury.
THE COURT: So, you are not inconveniencing me all
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that much. And, you know, after this trial, I will have
another one. And I have another one after that; and, then,
another one after that, all the way through April -- no, all
the way through June -- of next year. So, I am going to be
here and it is my job.
But these people, you know, they are just citizens.
They cannot work. They cannot go home and take care of their
children. They can't do any of the things they normally do.
Well, I will not say any more.
MR. KIRSCH: I'm sorry, your Honor, I thought I
raised that twice yesterday. And I'm sorry that I wasn't
clear. I'm sorry.
I wanted them to come in on Tuesday. I didn't want
them to come in today. And I'm sorry if I wasn't clear --
THE COURT: Well --
MR. KIRSCH: -- as to the reasons why.
But we didn't make those decisions until after the
Court had ruled on the evidentiary issue last night at 6:00
o'clock, with our other witnesses and with the defendant.
And, I guess, in the future, I can send an e-mail to
the Court's Proposed Order inbox, but I just didn't think to
do that last night, although I don't know if that would have
helped at 7:30.
THE COURT: Of course, it would have helped. We all
take a list of the jurors' phone numbers home with us during
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every jury trial, in case something happens and there is not
going to be court the next day.
MR. KIRSCH: I'm sorry, your Honor. Again, I did
not -- I did not -- want them to come in for this and I
thought I was clear on that yesterday. I apologize if I
wasn't. And I just didn't think to send an e-mail to the
Court at that late hour.
THE COURT: So, government, what do you suggest we
do? We have the defense suggestion.
MS. PERRY: Judge, we will defer to the Court as to
the schedule. We are at the Court's disposal.
THE COURT: Well, so the choice now is do we leave
the jurors sitting in the jury room while we discuss final
jury instructions, finalize them, type them up, prepare them;
and, then, call them out here to see if there is enough time
to actually do closing arguments and instructions after that;
then, allow them to retire to deliberate; or, do we send them
home and tell them the day is lost and they can come back next
week?
MS. PERRY: Judge, we do not have an objection to
sending them home, in order to avoid wasting their time today,
if that's what the Court is inclined to do.
THE COURT: Yes, that is what I am inclined to do.
I do not know. That is just really disappointing.
You know, these people, it's amazing that they show
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up. You know, they get a notice from a courtroom they've
never seen or heard of or been to. They are told it is their
civic duty to come here and to be jurors and this is part of
their obligation as a citizen of a free country -- a
democracy.
They actually come in droves. Very few refuse to
come. Very few. They come in droves. And I think we have an
obligation to treat them with respect and dignity and
consideration.
I asked you specifically last night. We were here
until, what, 5:30?
MR. KIRSCH: 6:00 o'clock.
THE COURT: Until 6:00 o'clock.
I can tell you what is best for this jury if you will
tell me how much more there is left in this trial.
And you said you did not know; and, then, an hour
later, you knew?
Really, that is -- that is -- just not right. That
is not right.
MR. KIRSCH: Your Honor, again, I --
THE COURT: You are member of my profession. You
know, we are all lawyers here. This is our system. This is
how we make our living. This is what we do and we all owe
something to this system.
I understand your primary responsibility is to your
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client, but you owe something to this system, as well. And
you have not lived up to that responsibility in the way you
have conducted yourself in this regard. I will tell you that.
MR. KIRSCH: Your Honor, the record is very clear of
what I said yesterday, begging the Court to not require the
jurors to come in today and letting them stay home.
And I anticipated for the Court that this might
happen very clearly on the record.
Your Honor, to the extent that my client did not
decide that he wasn't going to testify until last night, he is
entirely entitled to do that.
To the extent that I did not send an e-mail to the
Court at 7:30 or 8:00 p.m. last night advising the Court the
defendant was not going to testify, I was just --
THE COURT: I am taking you at your word. I am
taking you at your word that you did not know until after you
told me that you did not know.
MR. KIRSCH: Your Honor, and like I said --
THE COURT: That is okay.
MR. KIRSCH: -- I e-mailed the government.
I was not trying to game the system. I e-mailed them
immediately -- so they could begin working on their closing
argument -- that he was not going to testify, which, your
Honor, a lot of lawyers don't do, quite frankly. I did it.
THE COURT: Okay.
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Bring the jury out, please.
(Jury in.)
THE COURT: Ladies and gentlemen, it appears that we
have reached the end of the evidence in this case. For
reasons totally out of anyone's control, we are not able to
proceed to closing arguments and to your jury instructions at
this time.
So, I am going to release you for the day and ask you
to come back on Tuesday -- Monday is a holiday, I am told --
Tuesday at 9:30 in the a.m.
We will have closing arguments, you will receive your
instructions on the law and you will retire to deliberate on
that day.
Now that you have heard so much of the case and it is
going to be a long weekend, I want to make sure that I
re-emphasize to you that you are not to listen to, view or
read any news articles or information about this case; you are
not to do any research of your own about this case or anyone
or anything concerned with it; and, you are not to discuss
this case with anyone over the weekend.
You will have a chance soon enough to discuss it with
each other when you retire to deliberate.
I want to thank you for coming in today. I hope you
all have a great weekend. And we will see you Tuesday, 9:30
sharp.
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529
(Jury out.)
THE COURT: Well, we will recess until 1:00 o'clock.
At 1:00 o'clock, I want both sides here with a
complete set of the jury instructions, as they believe the
Court should give them -- your final proposed, complete and
total set of jury instructions -- and we will commence the
jury instruction final conference at that time.
(Whereupon, a recess was taken at 11:05 o'clock a.m.,
until 1:00 o'clock p.m., of the same afternoon.)
* * * * *
/s/ Joseph Rickhoff November 8, 2013
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530
EASTERN DIVISION
)
Plaintiff, )
)
v. ) No. 10 CR 886
)
) November 8, 2013
Defendant. ) 1:14 p.m.
BEFORE THE HONORABLE RONALD A. GUZMAN
APPEARANCES:
MS. APRIL M. PERRY
Suite 500
(312) 353-5300
(312) 558-5600
Attorney at Law
17th Floor
(312) 420-9263
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Trudeau.
MR. KRICKBAUM: Good afternoon, your Honor. Marc
MR. KIRSCH: Tom Kirsch and Carolyn Gurland on behalf
of the defendant.
THE COURT: Good afternoon.
I have the government's complete set of proposed jury
instructions. I don't have the defense's. Are you going to
rely on the government's?
MS. GURLAND: We are, your Honor, other than there's
two -- there's two I can hand up. I have three copies.
THE COURT: Okay.
(Tendered.)
THE COURT: So what I propose is that we just go
through the government's complete set first and see where the
defendant's two proposed fit in.
Government's first instruction on page 2. Is there
any objection?
THE COURT: It's given without objection.
Instruction No. 2 or page 3. Objections?
THE COURT: Page 4.
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THE COURT: Page 5.
THE COURT: Page 6.
THE COURT: Page 7.
THE COURT: Page 8.
THE COURT: Page 9.
THE COURT: Page 10.
THE COURT: Page 11.
THE COURT: Page 12.
THE COURT: Page 13.
THE COURT: Page 14.
THE COURT: Page 15.
THE COURT: This bullet point three contains the
phrase "and only a few other little things." It's my
understanding the government was not going to be arguing that,
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that you were taking that out.
MR. KRICKBAUM: Judge, I think what we said was that
we were not going to argue that based on the physical exhibits
of the products that the expert purchased and displayed for
the jury. But my memory is, Judge, that Ms. Perry asked you
whether we could argue it based on simply what is in the book,
including the list of products in the book.
THE COURT: Okay.
MS. PERRY: We did, however, Judge, take out
"inexpensive."
THE COURT: I saw that.
16.
MS. GURLAND: On page, 16, yes, your Honor, I -- the
paragraph that starts "for example," and the example that the
government has chosen to say that -- particularly the place
about the possibility of unanimous agreement on which
misrepresentation the government proved, they choose the one
that the weight loss protocol is not a diet.
It's my understanding based on our conversations
yesterday that they're -- that this is really sort of the
chief misrepresent- -- the chief alleged misrepresentation
that they're going to rely upon. So I would just suggest that
we select something that was a little bit more neutral, as
your Honor had when your Honor initially suggested
"inexpensive."
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Now, I understand why they don't want the example to
be inexpensive since they've taken that out; it would be
nonsensical. But I don't think it has to be the very
misrepresentation they say was made that they're going to
argue and most focus on with the jury in their case.
THE COURT: Is that a proper analysis of your
argument?
MR. KRICKBAUM: Well, Judge, we certainly will be
focusing on that one. I don't know that it's going to be the
one we most focus on. It's going to play a prominent role in
my closing argument. But I'll be focusing on several of these
misrepresentations at length, hopefully not too much length,
your Honor, but -- so, I mean, I think the point of this is
that these are examples and you could pick any one from the
list. I don't know why it matters which one in particular it
is. I think the fact that it's not a diet is one of the first
ones listed.
MS. GURLAND: That's fine. Why don't we choose
"cure"? We can put in "cure." That's definitely one that
they still have. It's the first one. So why not that? They
said it doesn't matter to them which one they --
THE COURT: That's one of the reasons I didn't want
to give an example instruction at all.
I don't see a basis for choosing one over the other.
The government prepared this instruction. You didn't prepare
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one. I'll give this one. I don't see any prejudice.
MS. GURLAND: We did prepare it, your Honor, this
was -- we filed -- this is what -- what happened was this was
the defendant's proposed 14 and we filed it. And then we took
your Honor's suggestion and got together with the government
and tried to iron out any difficulties before. So this was
actually our instruction that was copied and the government
sort of, you know, put it within the set since they had the
entire set. But when they did that, they changed one word in
the instruction 14 that we filed and they made the example the
diet, which I think is going to be, if not the top one that
they're arguing, one of the top two or three certainly.
MS. PERRY: We don't object to taking out the
examples altogether if this is going to be an issue.
MR. KIRSCH: Your Honor, if I could just ask a
question?
Does the government object to substituting the word
"cure" for "diet"? Diet appears two places. It's four
letters and so is cure. Can we put in cure instead of diet?
Is there any objection to that?
MS. PERRY: There is. We're not planning on arguing
cure to any great extent.
MR. KIRSCH: So let's use that one then. And I guess
the reason they're going to object is the same reason that
we're objecting to "diet."
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MS. PERRY: Judge, let's just take out the paragraph
if it's going to be an issue.
MR. KIRSCH: We object to that.
THE COURT: Okay. I'm going to give the instruction
as it is. I'll reiterate, I asked both sides this morning to
submit a proposed set of jury instructions in the final form,
the way they wanted them.
MS. GURLAND: Your Honor --
MR. KIRSCH: We did it last night, your Honor. We
did it. It's on the record. It's filed as part of the
record.
THE COURT: I asked you to submit a complete set for
discussion. The only thing I got was a complete set from the
government. I'm not going to change one word now in the
government's proposed instruction when I don't have a complete
set of instructions, including that change, from you, not when
I find that there is no prejudice whatsoever from the choice
of the use of the "diet" as an example and the use of the word
"simple" as an example. They're both perfectly appropriate.
The alternative would be to take out the paragraph
altogether, but the defense is objecting to that as well.
I'll give the instruction exactly as it is.
17.
THE COURT: 18.
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MS. GURLAND: I would -- I don't know if you want to
go through everything and then go back and think about where
the proposed defense instructions would fit. But I would
propose, since we just went through willfulness, that this
would be a good place to insert the good faith instruction,
which is one of the ones that I handed up in triplicate.
MS. PERRY: And, Judge, we don't object to that
instruction.
THE COURT: Okay. That was previously government
instruction No. 16; is that right?
MS. PERRY: Yes.
THE COURT: And it's Seventh Circuit pattern 6.10?
MR. KRICKBAUM: That's right, Judge.
THE COURT: So that would effectively be page 17 and
a half.
Given without objection.
Page 18.
MS. GURLAND: Before you do that, your Honor, I just
conferred briefly with Mr. Kirsch. If the government insists
on using the word "diet" as an example, we would ask then that
the example just come out as the Court and the government
suggested on page 16.
THE COURT: Okay. So you changed your position on
that?
MS. GURLAND: That's right, your Honor.
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THE COURT: Okay. The example will be stricken out.
18.
MS. GURLAND: This is the -- I believe that this is
the government's formation of an instruction that your Honor
had proposed and that we had suggested -- or that we had
discussed before. So we maintain our objection to the
instruction further defining the content of the book in either
the form that your Honor suggested or in the form that the
government has selected.
MS. PERRY: Judge, the Court did also propose
language on this. We tried to change the language slightly to
address the defense's concern that it might be read as
applying to the specificity of the order.
So the reason for our change is to make it clear that
this goes to when the jury is determining whether the content
of a book has been misrepresented, not whether -- not anything
to do with the order itself or the language within the order.
So that's the reason for our formulation, in an effort to cure
what they see as a problem.
THE COURT: I think that goes directly to the issue
that was raised, I think it was at our last jury instruction
conference, for the first time. The defense raised the issue
that the proposal to give any instruction on the meaning of
the word "content" in the court order might somehow conflict
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539
with the added element in a criminal contempt case of a
reasonably specific order. And that is not something I had
previously considered. I don't think it was previously argued
by anyone. And I said I would consider it and see if it made
any difference with respect to our determination to put in a
definition of the term "content."
And I did do some research. And I found a case, a
Seventh Circuit case -- well, first, I found several cases
that seemed to indicate that -- it's a Ninth Circuit case and
I'm trying to get the exact cites. I don't have them now. I
suspect I'll put them out subsequent to this hearing in some
sort of a written order. I found I think it was a Ninth
Circuit case and a Fifth Circuit case that both stated that in
criminal contempt proceedings based upon a consent decree or
order, that the defense of a reasonably specific order or the
need for a reasonably specific order did not apply; that the
defendant had no right to rely on that defense when he had, in
effect, agreed to the order and signed it.
Those cases seem to also emphasize that this was
especially true in a situation where the defendant had never
asked the Court for clarification before undertaking the
conduct that resulted in the contempt, had never asked his
attorneys for advice with respect to undertaking the conduct
which later resulted in the criminal contempt and had,
therefore, relinquished his right to rely upon the defense of
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a reasonably specific order. I found no case in the Seventh
Circuit holding that.
I did find a Seventh Circuit case which said that the
defense of good faith may arise in a context in which the
defendant claims good faith belief that his actions were
proper based upon an allegation that the court order was
insufficiently specific. In other words, they tend to fold
into each other these two elements. And that, it seems to me,
makes it difficult for the Court to give an instruction which
may take away from the jury some element of what now amounts
to the good faith defense.
If indeed they fold into each other, if indeed a good
faith defense could be based upon an argument of lack of
specificity in the order, not of a lack of intent to violate
the order, then I think that I have to rethink instructing the
jury on the definition at that point because we may at the
same time be instructing them on a portion of the good faith
defense, which is strictly a determination for the jury to
make and the Court ought not to be involved in.
I find that a rather incongruous conclusion given the
fact that this particular court order has been analyzed,
defined by this district court, in Judge Gettleman's opinion,
in which he found that the order was sufficient to apprise the
defendant of what actions were prohibited when he found him in
civil contempt; that that civil contempt finding was appealed;
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and that the Seventh Circuit in its appellate opinion
construed the order, found it to be unambiguous and found that
the definition of the word "content" as used in that order was
not subject to a factual determination but was, in fact,
defined through common usage as a book's substance or
essential meaning or the topics or ideas contained in the
book.
Nevertheless, this is a criminal context. And I
hesitate to give an instruction that might somehow impinge on
the jury's ability to evaluate the facts and determine whether
or not the government has met its burden of proof. So I'm
going to not give an instruction on the definition of the word
"content."
I will try to get out for anyone who is interested
the citations to at least some of the cases that I've talked
about here.
So 18, the objection will be sustained. It will not
be given.
19.
THE COURT: Given without objection.
20.
THE COURT: Do you want to change "happened
reasonably close to the dates," do you want to change "the" to
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"those"?
MS. PERRY: Sure.
THE COURT: I think that would probably be more
accurate.
21.
MS. GURLAND: No objection. I mean, no objection at
this time, your Honor. I believe that it was -- it's being
given over our objection. So we don't waive those, but we're
not renewing our objection because I believe this is an issue
the Court has decided.
THE COURT: So that one is given over objection. But
you have no specific objection to this language?
MS. GURLAND: That's correct, your Honor.
And just to make the record clear, when we're going
through this exercise today, I don't mean by saying that there
aren't any objections to waive anything that's happened
previously. I just mean for purposes of what we're doing now
because the Court has made certain rulings and we're not
seeking to retread over the territory that we've marched
through.
THE COURT: If you have any major objections to any
of the instructions that are being given, as you did with
respect to page 21, you should voice those now. Because had
you said no objection with respect to that instruction, I
would have construed that as meaning that you no longer
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objected to a definition of -- or, I'm sorry, 19, the
definition instruction. If you have a major objection to any
one of these instructions, you should give it as we're going
through it. You just have to mention it. You don't have to
make the argument all over again.
MS. GURLAND: Understood.
THE COURT: Okay.
So 21 is given over objection.
Pages 22 and 23.
MS. GURLAND: No objection to either.
THE COURT: 24.
THE COURT: 25.
THE COURT: 26.
THE COURT: Any other instructions we haven't looked
at?
MS. GURLAND: There is a theory of the defense
instruction. That's one of the -- one of the defense's
proposed instructions that we have not discussed.
THE COURT: Okay. Government?
MR. KRICKBAUM: Judge, we object to this instruction
on a few grounds.
The Seventh Circuit has said that to be entitled to a
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theory of the case instruction, the defendant must show,
first, that the instruction is a correct statement of the law.
Second, that the evidence in the case supports that theory of
the defense. Third, that the theory is not already part of
the charge. And, fourth, that a failure to provide the
instruction would deny a fair trial. I'm quoting from United
States against Vargas, which is 689 F.3d 867 on page 877 and
878. That's a 2012 decision from the Seventh Circuit.
We think this instruction misstates the law. And to
the extent it doesn't misstate the law, it's already part of
the charge.
Specifically, the first -- well, I'll just read from
the beginning. "It is the theory of the defense that Kevin
Trudeau did not willfully violate the September 2004 consent
order because the 2004 consent order was not reasonably
specific, in that, it did not define what was meant by content
of the book."
Just taking that piece of it initially, Judge, I
think this suggests -- I think this is just purely a matter
for argument during the arguments that that is the defense's
position. But I think as it's phrased now, it suggests to the
jury that if the order did not define what was meant by the
content of the book, then it was not reasonably specific,
which is, I think, wrong. If the defense just wants an
instruction that it's their theory that the consent order was
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not reasonably specific, that's fine. But that's really
already covered by the elements instruction which requires
that as the first element. So the way it's phrased now, I
think, is an incorrect statement of the law.
The next part, "The representations in the
infomercials were contained within the content of the book
and/or were expressions of Trudeau's views and opinions." I
think what the defense is getting at is the idea that he
didn't violate the order because he didn't misrepresent the
content of the book because everything he said in the
infomercials was also in the book.
But this, again, suggests to the jury that what it
means to misrepresent the content of the book is to misquote
the book, which is the defense's view. But it's not a correct
statement of the law. And if the defense wants an instruction
saying it's the defense's position that he didn't misrepresent
the content of the book, that's fine. But, again, that's
already covered by the elements instruction.
And then the last piece of this, which is just that,
"And Trudeau did not know or reasonably know that any conduct
was wrongful" is just a restatement of the willfulness
standard, which, again, is covered by the elements instruction
and the willfulness definition.
So to the extent that these things add anything to
the charge, we think they add error. We think they're likely
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to confuse the jury and mislead the jury. And they're not
necessary.
MR. KRICKBAUM: I think I covered most of our
objections, Judge.
THE COURT: Do you want to respond at all?
MS. GURLAND: I do, your Honor.
I'm looking at United States v. Vargas, V-a-r-g-a-s,
which is a Seventh Circuit case, 689 F.3d 867. It is a 2012
case. And it treats specifically the issue of a theory of the
defense instruction and what's required.
And part of what I hear the government's objection
being that -- that in the theory of the defense -- the changes
that they suggest would make the theory of the defense
something that exactly mirrored the charge. And that's --
it's not what a theory of the defense is supposed to be.
In fact, one of the elements that's set forth in the
Vargas case is that in order for -- to be entitled to a theory
of the defense instruction, one of the requirements is that
the theory is not already part of the charge. So for the
government to go through and say that they don't like how the
theory of the defense is explained in this instruction because
it doesn't exactly parallel the charge, I mean, if it did,
your Honor, under the Vargas case, we would run afoul of the
third requirement that it not exactly restate the elements of
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the charge.
So we can talk about if there's something that the
Court feels misstates what the defense's position is; but
after all, it's not -- it's not intended to be a neutral
statement of the case. It's supposed to be the defense theory
of the case. And as long as there has been evidence developed
at this trial that supports the statements that are made here,
I don't believe that the idea behind a defense theory of the
case instruction is for it to be entirely neutral, but rather
to do what it says and summarize the defense's theory as long
as that theory has gone in and been presented to the jury.
THE COURT: Okay. I have some problems with it. Are
you, by this instruction, limiting the argument that the
representations in the infomercials were contained within the
content of the book, are you limiting that evidence solely to
go to the issue of willfulness or are you going to argue that
there's no violation whatsoever because of those statements
being actually in the book?
MS. GURLAND: I think it's both. I think it's -- but
it certainly goes to willfulness, your Honor. And just as
your Honor found with the instruction that we -- you know, the
cases that your Honor is reading is that the elements collapse
together. And that's one of the challenges in defining and
dealing with jury instructions for this particular offense.
THE COURT: Yes. But the problem with a theory of
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anything instruction is that I'm telling the jury I'm giving
them the law, and I'm not really. I'm giving them a theory.
And particularly where you have an issue like this, this type
of instruction appears to be more instruction as to what the
law is or likely to be taken by the jury as to what the law
is, which would, in effect, be an automatic finding of not
guilty for the defendant. If they believe that this is an
instruction on the law, the representations in the
infomercials, and if you're going to argue both things, then
maybe both should be included in the theory of the defense.
MS. GURLAND: I think that's what we tried to do.
But if we've done it insufficiently precisely, we could try
again.
THE COURT: Of course the last phrase, "did not know
or reasonably know," gives the jury a choice as to which legal
standard to apply. Is it that he didn't know or that he
didn't reasonably know? And --
MS. GURLAND: Well, we could go back to the
willfulness instruction that's going to be given and make sure
it parallels that exactly.
THE COURT: I'm trying to see what it adds to the
overall charge.
You can go back and try to reshape it. But as it's
given right now, I agree with the government. I think it is
likely to be seen by the jury as an approval of the defense
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rather than a neutral statement. It's also somewhat confusing
if you're going to argue a theory that's not included in here
as well.
And I think that the specific language with respect
to, for example, "theory of the defense that the expressions
were Mr. Trudeau's views and opinions," there's a stipulation
that the court order only allowed him to state his views and
opinions if they did not violate -- or misrepresent the
content of the book. So to state that you have a legitimate
theory based only on the fact that what you said was an
expression of your views and opinions is misstating the law
and is contrary to what the parties agreed in their
stipulation. And if the jury believes that that is a
legitimate theory in and of itself without that qualifier,
they're liable to find the defendant not guilty based upon a
misapprehension of the law.
MS. GURLAND: I understand, your Honor. We will try
to reformulate it along the lines that the Court has suggested
and discuss it with the government. And if we still decide
after talking to the government and incorporating what your
Honor has said that we want to refile it, we'll do that. If
not, we won't.
THE COURT: I'm just trying to see if there's
anything else you should be looking at if you're going to try
to do that.
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I don't know. You get into a lot of issues. If
we're going to instruct the jury that it's a theory of defense
that the court order didn't define what was meant by the word
"content" or the phrase "content of the book" --
MS. GURLAND: Your Honor, we -- that definitely needs
to be changed based on -- so that's agreed.
THE COURT: The problem is that if you do that then,
if I'm the government, I may then want an instruction on one
of the many hundred cases which say that a court order, in
order to be reasonably specific, does not have to define
common language. And we get into a whole series of issues
that, frankly -- no, you can redraft it but -- well, you can
try to redraft it, but I think there are significant problems
with giving this kind of instruction, especially in this kind
of a case. And I don't see that it adds much, if anything, to
the jury's understanding. It's pretty simple. You folks have
laid it out pretty simply. There have been few conflicts as
to the facts in this case. And you both made your case pretty
clear to the jury. It's just a question of the jury's
determination.
So I'll deny this as it is right now. If you want to
renew your effort, you can. But I suspect it's going to be
quite difficult in this kind of situation to craft a theory of
defense. It's not as if it's the theory of defense wrapped
around a fact or a set of facts, such as the defendant was not
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the person who did the thing alleged or the government failed
to establish some element of the offense. I think it's going
to be difficult in this kind of a case.
Anything else?
MS. GURLAND: Your Honor, I took a -- based on what
the Court had said that you wanted me to identify instructions
that we had objected to before that we want to just note for
the record that we had objected to.
THE COURT: Sure.
MS. GURLAND: The only other one that falls into that
category is 13.
THE COURT: Page 13?
MS. GURLAND: Yes. And I don't want to reargue it.
But we argued it that we didn't think there was a reason to
have that instruction. And so we just want to stand on the
record that we made previously, but we don't wish to argue it
further before your Honor this afternoon.
THE COURT: Okay.
MS. PERRY: Judge, I'll go ahead and make the changes
that we talked about. Would you like me to submit a Word
version to everyone in case there are any additional last-
minute changes?
THE COURT: Yes, please.
MS. PERRY: Okay. I'll send that to the proposed
order mailbox?
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THE COURT: Okay.
Anything else?
THE COURT: Okay. Closing arguments. How long?
MR. KRICKBAUM: Judge, I think in total for the
government, for both the initial close and the rebuttal,
approximately an hour and a half.
THE COURT: Is that long enough for the defense?
MR. KIRSCH: Yes, that's probably the same.
THE COURT: Okay.
I don't have anything else. Either side?
MR. KIRSCH: Oh, your Honor, are you going to talk to
the defendant about his right to testify? Do you want to do
that now or do you want to do that on Tuesday?
THE COURT: We should probably do it now. I think
you have articulated you are resting on the evidence. So I'm
going to give you a chance to reopen your case so that I can
admonish the defendant and then you can rest again.
MR. KIRSCH: Your Honor, I actually haven't rested
yet in front of the jury. I thought you were going to ask me
to do that on Tuesday, so we never did that.
THE COURT: Okay. Then we don't have to go through
that exercise.
Mr. Trudeau, your attorney has indicated that you do
not intend to testify in this case; is that correct, sir?
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THE DEFENDANT: Yes, sir.
THE COURT: Okay. As you well know, you have the
right to remain silent, which means that you do not have to
testify unless you wish to do so. No one can force you to
testify. However, it is also true that you have a right to
testify if you wish to do so. And no one can keep you from
testifying if that's what you want to do.
So let me ask you: Do you want to testify in this
case?
THE DEFENDANT: No, your Honor.
THE COURT: And are you making that determination
based upon the advice that has been given to you by your
attorney?
THE DEFENDANT: Yes, your Honor.
THE COURT: And do you think it's the best
determination for you given the circumstances?
THE DEFENDANT: I do, your Honor.
THE COURT: Very well.
Anything else?
MR. KRICKBAUM: 9:30 on Tuesday, Judge?
THE COURT: 9:30.
THE COURT: Okay. Court is recessed.
(Trial adjourned until November 12, 2013, at 9:30 a.m.)
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* * * * *
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(312) 435-6890
555
EASTERN DIVISION
)
Plaintiff, )
)
v. ) No. 10 CR 886
)
) November 12, 2013
VOLUME 5
APPEARANCES:
MS. APRIL M. PERRY
Suite 500
(312) 353-5300
(312) 558-5600
Attorney at Law
17th Floor
(312) 420-9263
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556
(Excerpt of proceedings:)
Trudeau.
MR. KIRSCH: Good morning. Tom Kirsch and Carolyn
Gurland for the defendant.
Does either side have anything they wish to bring up?
MR. KIRSCH: No, your Honor. Are you going to ask
the jury if they have read or seen any media reports over the
weekend? Do you typically do that?
THE COURT: Sure. I can.
THE COURT: There are a couple of things I want to
bring up.
The first thing is that my chambers received an
e-mail today from a person whose name I will not mention,
although I certainly could, I guess. I don't want to
embarrass anyone. I want both sides to see the e-mail to see
if they think there's any reaction they wish to have to it.
As far as I know, my secretary and I are the only ones that
have seen it so far.
(Tendered.)
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(Brief pause.)
MR. KIRSCH: Your Honor, we have no comment on the
e-mail.
THE COURT: Okay. I just wanted both sides to know
that the Court has been exposed to this publication. It
doesn't obviously affect me either way, nor I think at this
stage of the proceedings does it much matter whether it
affects me either way or not. But I think I should probably
make this a part of the record.
Does either side have an opinion as to whether the
name and e-mail address of the sender should be blacked out?
MR. KRICKBAUM: We're fine with blacking those out,
Judge, if you're going to be making this part of the public
docket.
MR. KIRSCH: I have no opinion either way, your
Honor. Whatever you want to do is fine.
THE COURT: Okay. I'll consider that.
The second thing I wanted to bring to the parties'
attention is, have you exchanged the exhibits that you intend
to send back to the -- or at least reviewed each other's
exhibits? Is there going to be a controversy about any of
those?
MR. KRICKBAUM: I don't expect a controversy. And I
expect, Judge, that we can have a final review of them during
the lunch hour. Based on the timing, I think we'll have time
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558
to do that. And just to be sure there is no controversy, we
can do that then.
THE COURT: Okay.
The third issue is related to that. Government's
Exhibits, I believe, it's 1, 2, and 3 are videos.
MR. KRICKBAUM: Yes.
THE COURT: Do you intend to provide the jury with
any means to play those videos?
MR. KRICKBAUM: Yes. We have a laptop that is blank.
And they will be able to play the videos on the laptop. And
we will provide the CDs that have been marked as exhibits.
THE COURT: Do you intend to provide the jury with
any instructions as to that? Because there is no instruction
in the packet. There is a criminal instruction with respect
to the use of videos and transcripts which you might be able
to adapt. I suggest you do that, otherwise you'll just be
giving them videos and some contraption without any
instructions.
MR. KRICKBAUM: Yes, Judge. I suspect that the
jurors could figure out how to play the videos. Maybe I could
suggest we proceed this way: If they have a question about it
during their deliberations, we could give that pattern
instruction at that time. But I suspect that they will
probably be able to do that.
THE COURT: I'd rather you crafted an instruction
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559
telling them we're giving them this particular machine,
whatever it is -- I assume it's going to be one of your
computers?
MR. KRICKBAUM: Yes.
THE COURT: I assume you've shown it to Mr. Kirsch to
make sure that he agrees there's nothing in it other than the
program for playing the videos?
MR. KRICKBAUM: We haven't done that. But we will do
that, Judge.
THE COURT: And that we let the jury know why we're
giving them a computer, something to tell them why we're
giving them the computer, otherwise who knows what they'll do
with it.
That's all I have.
Other than that, are we ready for closing arguments?
MR. KRICKBAUM: And the government would like to
publish from its laptop during the closing, so we -- could we
just make sure that the screens are all working, your Honor?
THE COURT: Check and see.
(Brief pause.)
MR. KRICKBAUM: They're working, Judge.
THE COURT: Let's bring the jury out.
(Jury in.)
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Once again, I can't tell you how happy we are to have
you back with us.
Preliminarily, I want to ask you if any of you, by a
show of hands, have had occasion to either view, read or
listen to any news reports or any other informational material
about this case or the defendant during the course of the long
weekend? Anyone?
Let the record reflect that all the jurors have
indicated that they have not. Very well.
With that in mind, I now wish to give you an
instruction in preparation for closing arguments.
Members of the jury, the attorneys will now give
their closing arguments. The statements that the lawyers make
now are not to be considered by you either as evidence in the
case or as your instructions on the law. And should your
recollection of the evidence conflict with that of any of the
attorneys, you are to disregard what they say and to rely upon
your own collective recollection of the evidence.
Nevertheless, the statements and arguments of the
attorneys in their closings are intended to help you
understand the issues and the evidence in the case. Closing
arguments are meant to summarize the evidence you have heard
during the last week and to suggest the reasonable inferences
that you should draw from the evidence.
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Krickbaum - Closing Argument
561
So please pay close attention now as I recognize the
attorneys for their closing arguments.
Counsel.
MR. KRICKBAUM: Thank you, your Honor.
CLOSING ARGUMENT ON BEHALF OF THE GOVERNMENT
BY MR. KRICKBAUM:
In the infomercials that you watched during this
trial, the defendant lied about what was in his book. He
deceived people. He chose to make his book sound far better
than it actually was so that he could sell more books and so
that he could make more money. You don't need a roomful of
lawyers to tell you that. You don't even need a dietician to
tell you that. After watching those infomercials and seeing
what is actually in the book, it's obvious. It's clear what
the defendant was up to in those infomercials.
In the infomercials you heard the defendant say that
his book was not a diet, not portion control, not calorie
counting. But based on what's actually in the book, none of
those statements are true.
You heard him say that HCG is a substance that you
can get anywhere. Anywhere. He didn't call it HCG in the
infomercials. He called it an all-natural miracle substance.
But no matter what you call it, based on what's in the book,
that statement is not true.
You heard him say in the infomercials that you can do
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this weight loss protocol at home. According to what's in the
book, you can't.
And you heard him say in the infomercials that when
you're finished taking this protocol, you can eat whatever you
want and never gain the weight back. And based on what's in
the book, that's not true either.
According to what is in the book, none of those
statements is true. All of them are false. And the defendant
knew they were false when he said them in those infomercials.
He wrote that book. It's his book. He knew that he wasn't
telling the truth about it in those infomercials.
And he also knew one other thing. He knew that a
federal judge had issued an order to him ordering that he
could not lie about his book in his infomercials. And when
the defendant chose to tell those lies in the infomercials for
The Weight Loss Cure book, he willfully violated that court
order. And he was in contempt of court.
Now, I want to start by talking about the charge of
contempt. And I want to talk to you about the elements of
that crime. And I expect that Judge Guzman will instruct you
that the crime of contempt has three elements. Those are
three things that the government has to prove in this case
beyond a reasonable doubt.
And the first element that I expect he'll instruct
you about and the first thing the government has to prove is
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563
that the court entered a reasonably specific order.
The next element is that the defendant violated that
order by misrepresenting the content of The Weight Loss Cure
book in those infomercials.
And the third element is that the defendant's
violation of the order was willful.
And I want to talk about each of these elements one
by one, starting with the first one.
The court entered a reasonably specific order. Now,
you saw the order in this case and this is a highlighted
portion of the order. It's Government's Exhibit 5, and this
is a highlight from page 8. And the relevant part says,
Additionally, the infomercial for any such book, newsletter or
informational publication must also comply with the
requirements of Part X herein and must not misrepresent the
content of the book, newsletter or informational publication.
The order said that those infomercials could not
misrepresent the content of a book. That is reasonably
specific.
And another reason that you know it's reasonably
specific is that the defendant agreed to this order. He
signed this order. And so it would be a little late now,
almost ten years later, for the defense to complain that this
order is not reasonably specific. You can't lie about your
books in your infomercials. That is reasonably specific. And
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564
that's all I'm going to say about the first element, that the
court entered a reasonably specific order.
The second element is that the defendant violated the
order by misrepresenting the content of The Weight Loss Cure
book in an infomercial. And this element has been the focus
of most of this trial. That's what the two sides have been
fighting about for most of this trial, are the things that the
defendant said in those infomercials, are they
misrepresentations. When he said those things, did he lie
about what was in his book? And I'm going to talking about
several different misrepresentations today.
And when the judge instructs you, I expect that you
will hear that the defendant is charged with making a whole
long list of misrepresentations. You will get the list.
There's a lot of bullet points in the list. There's a lot of
misrepresentations on the list. Even within the bullet
points, there are sometimes multiple misrepresentations per
bullet point.
But the important point that I want to emphasize is
that the government doesn't have to prove that every single
one of those was a misrepresentation. We don't have to prove
that they were all misrepresentations. We have to prove that
at least one of them was a misrepresentation. And all of you
have to agree on which one that was. So if you all agree that
at least one of these statements was a misrepresentation and
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565
you all agree on which statement that was, then you can stop
deliberating about the second element and move on to the third
element.
Now, I'm going to go through not all the
misrepresentations today, but I want to highlight a few of
them.
The first one I'm going to talk about, I mentioned
earlier: The defendant's statement that this book, this
protocol, is not a diet, not portion control and not calorie
counting.
And in Government Exhibit 19, that's the citation at
the bottom of the screen, that's the chart that the government
put into evidence that Inspector Carrier testified about where
we collected the examples in the infomercials where the
defendant made those statements. So you can see those
statements in that chart on page 1, and you'll have that chart
as evidence when you deliberate.
The defendant made those statements -- it's not a
diet -- multiple times in those infomercials. And that was an
important misrepresentation. So let's compare what he said in
the infomercials with what's actually in the book.
And I'm going to focus on Phase 2, and starting with
the point that Phase 2 is mandatory; you have to do it. I
don't think there's any disagreement about that between the
parties. And it's very clear in the book, you have to do
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566
Phase 2.
So what's involved in Phase 2? Well, you'll probably
remember the details. No more than 500 calories a day. You
get coffee and tea for breakfast. You get a hundred grams of
meat for lunch and dinner; a handful of vegetables for lunch
and for dinner. You get one small apple, one small
grapefruit. I think you can substitute strawberries for one
of those if you want. And you get water. And that's all the
food you get every day for at least 21 days and as much as
45 days. That is Phase 2. And another word to describe that
is a diet. Another word to describe that is portion control
and calorie counting.
Now, Government Exhibit 8A is a photograph of a
hundred grams of meat, a hundred grams of beef and a hundred
grams of chicken, which are about the size of a deck of cards.
And I expect that when Judge Guzman instructs you, one thing
he will tell you is that you should use your common sense when
you evaluate the evidence in this case. And this is a pretty
good example of where you should use your common sense because
your common sense will tell you that that is portion control.
If you're measuring on a kitchen scale 100 grams of meat, you
are controlling the portions that you eat. It's not
complicated.
Government Exhibit 8E is a photo of all of the food
that you can eat in a day, and that's what you can eat every
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567
day for 21 days. And your common sense will tell you that
that is a diet. And that if you're eating that every day,
you're involved in calorie counting.
It's not just your common sense that tells you that's
a diet. The book -- throughout the book -- repeatedly
describes this protocol as a diet over and over again. So,
for example, "You must be very strict in following the diet
exactly if you want to achieve results." So now it's not just
a diet; according to the book, it's a strict diet.
The book says that Simeons said that, "the diet, used
in conjunction with the HCG injections, must not exceed
500 calories per day." It's not only a diet, it's also
calorie counting.
And on the issue of portion control, the book says
that, "the amounts of that meat must be extremely accurate.
100 grams is 100 grams." That is portion control.
Finally, "If it's not on the list, do not eat it."
This is a very strict and specific diet, and the book makes
that clear.
Now, I want to talk about an argument the defense has
made, the idea that, well, the book itself says that it's not
a diet. And you saw that chart that the defense went through
with Inspector Carrier. We talked about that chart for
several days. And on the chart, you will see that there are
three or four places in the book where the book says it's not
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568
a diet. And I want to talk about that.
But before I get specifically to that, I want to be
clear about what's actually in the book on this point. Three
or four places the book says, it's not a diet.
On over 20 separate pages, the book says that it is a
diet, often multiple times per page, throughout the entire
book. And I've already read several of those examples to you,
but there's a few more. It refers to it as "the low-calorie
diet from Phase 2." "The 500-calorie diet." "The exact
Simeons Weight Loss Cure protocol combining the very strict
and specific diet with the exact amount of HCG." These quotes
are contained throughout the entire book.
But what about the fact that the book says on three
or four pages that it's not a diet? Well, ladies and
gentlemen, that (indicating) is a diet. Whether you put the
label "diet" on it or not, it's still a diet. It is what it
is. Words mean things. So you can say as much as you want
that that's not a diet, but it is. It is.
MR. KIRSCH: Your Honor, I'm going to object to this
line of argument.
THE COURT: Basis?
MR. KIRSCH: The truth or falsity of the book is not
at issue. To the extent -- the truth or falsity of the book
is not at issue.
THE COURT: The objection is overruled. The truth
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569
and falsity of the book is not at issue, but the argument does
not appear to go to that. It appears to go to something that
is at issue.
Proceed.
BY MR. KRICKBAUM:
And, ladies and gentlemen, here's another example of
where you can use your common sense. If you limit the amount
of food you eat and you carefully measure the food you eat and
you severely restrict your calories so that you're only eating
500 calories and you do that over a significant period of time
so that you can lose weight, you're on a diet. That's what it
means to be on a diet. You're counting your calories and
you're involved in portion control. That's what those things
mean. And the defendant can't change that. He can't change
that fact about his book by just saying it's not a diet in a
few places.
And remember what the language of the court order is
because that's very important in this case. The court order
says that the infomercial must not misrepresent the content of
the book. Now, the content of the book is what is in the
book, all of it, everything, all of the ideas expressed in the
book taken as a whole. That's the content of the book. It's
not a stray sentence on one page of the book or a word on
another page of the book. It's the content of the book taken
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570
as a whole. And the defendant can't change the content of his
book by putting on a few pages that it's not a diet because if
he could do that, then this court order would be meaningless.
Because the defendant could lie as much as he wanted to in
those infomercials and say it's not a diet, it's not a diet,
it's not a diet and then just put on a couple of pages of that
book it's a diet and he would get around the court order.
That's what it would mean if the defendant could get away with
that.
But federal judges don't issue meaningless court
orders. When a federal judge tells you that you can't do
something, that means you really can't do it. And this order
actually limited what the defendant could do. It controlled
his actions in the future. And he couldn't get around it by
just putting the words "it's not a diet" on a couple of pages
of that book. The court order is not meaningless. The court
order actually controlled what the defendant could do in this
case.
An important question for you to ask yourselves when
you're deliberating is what if the defendant had told the
truth about this in those infomercials? If he had told the
truth, he would have said, My book involves a very strict and
specific diet. For at least three weeks, you can only eat
500 calories. You have to carefully measure the food that you
eat. You can only eat small portions of meat and vegetables.
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571
And you have to do that every day for at least three weeks.
If he had said that, he would have sold a lot fewer books.
And that's why he chose to lie about it by saying that it
wasn't a diet.
Now, the next misrepresentation that I want to talk
to you about is the claim about HCG. "You can get it
anywhere." The defendant said that in the infomercials. The
citations are on the government's chart on page 3. "You can
get it anywhere." Now, the first thing I want to say about
that misrepresentation is it's not in the book.
Now, the defendant made a number of
misrepresentations about HCG, but we only have to prove one of
them. And I'm going to focus on this one, that you can get it
anywhere. That statement is not in the book. So if you're
concerned about the idea that he put some of these things in
the book, that one is not in there. And you know that it's
not in there, among other reasons, because on the defendant's
chart in which they collected all these statements in the book
that were supposedly in the infomercials -- it's on pages 21
through 24 of that chart -- not a single one of the quotes
from the book in that chart contain the statement that you can
get HCG anywhere. None of them say that. Because it's not in
the book.
So what did the defendant say about HCG in the book?
Well, the first thing he said is, "You must get HCG from a
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572
medical doctor with a prescription." That is the exact
opposite of the idea that you can get it anywhere. You can
only get it from a doctor with a prescription, according to
the book. He next says, "There's much debate of whether a
medical doctor in America has the legal right to prescribe HCG
to be used with the Simeons Weight Loss Cure protocol." So,
according to the book, you can only get it from a doctor and
it might not be legal for a doctor to give it to you for
weight loss in the United States.
He then says that you can also get it from outside
the United States. "HCG and the Simeons weight loss protocol
can also be procured from doctors outside the U.S. and legally
brought back into the country for personal use. This is
provided you have a valid prescription from a licensed medical
doctor." You can get it out of the country, which is kind of
the opposite of saying you can get it anywhere.
And, finally, again, returning to that first point,
"HCG is available by prescription only."
None of those things expressed the idea that the
defendant expressed in his infomercials that you can get HCG
anywhere.
And what if the defendant had told the truth about
HCG in those infomercials? He would have said, My diet
involves taking a hormone called HCG. You have to inject it
into your body. You can only get it from a doctor's
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573
prescription. And it might not be legal for you to get it in
the United States. So you might have to leave the country,
find a doctor who is willing to prescribe it to you and then
bring it back into the country. That's what he would have
said if he were telling the truth. And if he had said that,
he would have sold a lot fewer books. And that's why he
chose, again, to lie about it.
The next misrepresentation I want to talk about is
the defendant's statement that you can do this protocol at
home. And he said that repeatedly in these infomercials. And
I'll give you a few examples. The first one is pretty
straightforward. "You can do it at home." "Anybody can do it
at home," he said. "You don't have to go to a clinic to do
it." "You can do it at home." And you can do it out of your
home. The defendant made this very clear in these
infomercials, you can do it at home.
That statement is also not in the book. It's not in
there. He never says in the book that you can do it at home.
And if you look at the defendant's chart on pages 29 and 30,
this is a chart that is supposed to be collecting statements
from the book that are the same as statements from the
infomercials. There are no quotations from the book on this
claim. It just quotes more statements from the infomercials.
And the reason that there are no quotations from the book is
the defendant never said this in the book. He never said it.
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574
What does he say in the book about doing this
protocol? Well, first -- we've already covered this -- "HCG
requires a prescription from a doctor." So you already need a
doctor involved to get you a prescription. Then he says, for
Phase 2 -- and this is in capital letters and bold-faced
letters in the book -- "This phase must be done under the
supervision of a licensed health care practitioner." So now
you need a prescription and you also need a doctor supervising
it.
For Phase 3 under things you must do, it says, "Get
personalized individual care from a licensed health care
practitioner who does not use drugs and surgery." So now you
need a prescription from a doctor, you need a doctor to
supervise you, and you need personalized individualized care
from a doctor. Now, you can use your common sense on this one
as well. You can't do those things at home.
And in case the book wasn't clear enough on this
point, the defendant makes it crystal clear when he quotes
from Dr. Simeons, the person who discovered this supposed
cure. And this is on page 211 of the book. The defendant
quotes Dr. Simeons from his book Pounds and Inches: A New
Approach to Obesity. And here's the quote from Dr. Simeons:
"The HCG plus diet method can bring relief to every case of
obesity, but the method is not simple." And notice here, by
the way, that he's just described this as a diet and he just
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575
said that it's not simple.
He then goes on, "It can be time-consuming and does
require perfect cooperation between physician and patient.
Each case should be handled individually. The physician must
be available to answer questions, allay fears and remove
misunderstanding. The patient should be checked daily." And
I underlined that point. That point is not underlined in the
book.
So it's not just that you need your doctor to
supervise you and to give you individualized personalized
care. You need daily checkups, according to this book, while
you're on the protocol. That's on page 211. And what does
the defendant think about what Dr. Simeons said about that?
Well, that's on the very next page. At the conclusion of this
quote, the defendant says, "I echo the words of Dr. Simeons."
You need a doctor to supervise you, give you
individual care and do daily checkups. Those are not things
that you can do at home. According to the book, you can't do
it at home.
And there's another misrepresentation that the
defendant made in those infomercials that is closely related
to this one. He said in one of those infomercials, "When
you're underage, you obviously want to do any weight loss
program under the supervision of a licensed health care
practitioner." "When you're underage," he said. Well, we
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576
just went through, ladies and gentlemen, the need to be
supervised by a doctor, according to the book, applies to
everybody. That's in bold letters. That's a thing you must
do. It's not just for minors. It's not just for juveniles.
That's how he portrayed it in the infomercials, but that's not
what's in the book.
Now, what if the defendant had told the truth about
this point in his infomercials? Well, he would have told
people you need a prescription from a doctor in order to do my
protocol, you need to be supervised by a doctor, and you need
daily checkups from your doctor during the time that you're
doing my protocol. And if he had told people that, he would
have sold a lot fewer books. And so, yet again, he chose to
lie.
One more misrepresentation -- and this is the last
one I'm going to focus on in my closing. It's an important
one though. The defendant said in those infomercials that
after you're done with the diet, you can eat anything you want
and never gain the weight back. Let me give you a few
examples of where he said that.
"I can eat whatever I want now, anything and as much
as I want any time I want. No restrictions now. And the
weight's not coming back. You don't gain the weight back."
And another example, "When you're done with the
protocol, eat whatever you want and don't gain the weight
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577
back." Those are very attractive claims. Those are claims
that anybody who is interested in losing weight would be very
interested in.
What does the book say about whether or not there are
restrictions? Well, first, starting with Phase 4, the book
says that Phase 4 is for the rest of your life. So right away
the idea that you can be finished with this protocol is not
true, according to the book, because Phase 4 lasts for as long
as you live. You can't finish.
And then you may remember, in Phase 4, there is a
list of 50 dos and don'ts. It takes multiple pages for the
defendant to list out every single one of those dos and
don'ts. And those aren't small dos and don'ts. Those are big
dos and don'ts, such as, "Eat only 100 percent organic food."
"Don't eat food from most grocery stores." The way the
defendant described it is don't eat brand name food, the kind
of food they sell at the kind of grocery stores that most
people shop at. "Don't eat fast food, regional food or
national chain restaurants." Don't go out to eat. And you
can't eat a whole list of ingredients that are in the types of
foods that most people eat every day. You can't have trans
fats. You can't have nitrates. You can't have high fructose
corn syrup that are in foods such as soda, cake, cookies,
crackers, ice cream and so on.
So when the defendant says in those infomercials, you
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578
can eat pizza, you can eat pasta, you can eat ice cream, well,
you can eat pizza if you're able to find raw dairy for the
cheese, but you can't put any sausage on it because sausage
contains nitrates. And you can eat ice cream if you can find
ice cream that doesn't have any sugar in it and that doesn't
have any artificial sweeteners in it because you're not
allowed to use those sweeteners.
And there's another restriction in Phase 4. You
can't take any medications at all of any kind, including
aspirin. And this was what the defendant describes in those
infomercials as no restrictions.
Now, there's been an issue that the parties have been
arguing about in this trial, and that is the issue about is
Phase 4 required. And the defense has suggested that Phase 4
is just recommended; it's just suggested; you can almost
pretend like it's not there because you don't really have to
do it. That is not what the book says. The book makes this
extremely clear. Phase 4 is required if you want to keep the
weight off. And the book says that over and over. Here are a
few examples. This is probably the clearest one: "If you go
back to eating fast food, restaurant food and food containing
trans fats, high fructose corn syrup, super highly refined
food, artificial sweeteners, meat, poultry and dairy with
growth hormone and antibiotics," et cetera, et cetera, et
cetera; in other words, if you go back to eating the foods
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579
that are outlawed in Phase 4, you will, in fact, mess up your
hypothalamus again and regain the weight. If, however, you
follow the dos and don'ts in Phase 4, the weight should never
return.
And in case that wasn't clear enough, the defendant
emphasizes this point repeatedly. "All restaurant food," he
says in the book, "is designed to make you fat."
"All non-prescription, over-the-counter and
prescription drugs cause disease and obesity."
"You should never use any artificial sweeteners ever
again for as long as you live. They make you fat."
And for good measure, "You should never eat anything
with MSG in it ever again as long as you live. It makes you
fat."
If that wasn't clear enough, the defendant has one
more thing to say on this topic in the book. He says, "Don't
eat the forbidden foods as listed in Phase 4, as they create
drug-like physical addiction. This is absolutely essential.
When I say never, I mean never. Would you consider thinking
that you could on occasion smoke some crack cocaine or shoot
up some heroin and not become addicted? The food at fast food
restaurants and the ingredients that I suggest be forbidden
can be as physically chemical addicting as heroin or crack
cocaine."
These restrictions in Phase 4 are not suggestions,
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580
ladies and gentlemen, any more than you would suggest to
someone that maybe you shouldn't smoke crack or shoot up
heroin. That's not a suggestion. And when Mr. Kirsch was
asking Inspector Carrier about this very passage, he suggested
that this passage only applies to people who have problems
with emotional eating; it doesn't apply to everyone, so you
can just kind of ignore it.
But that's not actually what the book says. If you
look on that very page of the book, on page 165, the defendant
says, "Every person reading this has been hypnotized by the
food companies into having uncontrollable food cravings." And
that's why he says you have to stay away from all of those
problem foods that are listed in Phase 4.
Another way to say that, ladies and gentlemen, is
that Phase 4 is required if you want to keep the weight off.
And let's keep in mind that keeping the weight off is the
whole point of this book. That's the entire idea behind the
book. And that's why the defendant sold this book as a cure,
a weight loss cure. It's only a cure if it permanently fixes
your condition. A cure means that your problem is fixed.
It's over. It's done with. If you gain the weight back, you
haven't been cured. And that's what the defendant is selling.
He's selling a cure. And he makes very clear in the book that
if you do not follow the requirements of Phase 4, then you
have not been cured; and that's because you will gain the
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581
weight back. And the bottom line for all of that is that if
you want a cure, if you want to keep the weight off, then you
can't eat whatever you want. You can't eat the food that is
outlawed in Phase 4.
Now, I want to talk briefly about this issue of
cheating because the defense has discussed this. It's true,
the defendant acknowledges in his book that occasionally from
time to time, you will eat some of the things that you're not
supposed to eat in Phase 4. Here's what he says about it, he
says, "It's impossible for the average person to eat this way
all the time. This is why doing a colon cleanse, liver
cleanse, heavy metal cleanse and parasite cleanse once or more
per year is strongly suggested." In other words, according to
the book, because you will sometimes cheat, you have to take
all those potions and powders and pills that you saw sitting
up there on that witness stand when the dietician, Melissa
Dobbins, testified.
But just because the defendant acknowledges that you
will sometimes cheat doesn't mean that the restrictions in
Phase 4 go out the window. You still have to reduce or
eliminate all of those foods listed in Phase 4 according to
the book. And this is from the quote that I read earlier. If
you go back to eating those foods, according to the book, you
will, in fact, mess up your hypothalamus again and regain the
weight. So you have to give up, according to this book, or at
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582
least severely restrict, the kinds of food that most people
eat all the time every day. That's what the book says.
And that is the misrepresentation on this point. In
the infomercials, the defendant said you can eat anything you
want; there are no restrictions. What does the book say? You
have to completely change the way you eat for the rest of your
life. That's a pretty big misrepresentation.
And what if the defendant had told the truth on this
point? If he had told the truth in those infomercials, he
would have said, My protocol lasts for as long as you live,
and you will no longer be able to eat most of the foods that
most ordinary people eat every day. And if he had said that
in the infomercial, he would have sold a lot fewer books. And
that, again, is why he chose to lie about what was in his
book.
Now, we've been talking for quite a while now -- or I
have -- about the second element, that the defendant violated
that order by misrepresenting the content of the book; and
I've listed several misrepresentations: It's not a diet.
It's not portion control. It's not calorie counting. The
idea that you can get HCG anywhere. You could do it at home.
Only minors need a doctor's supervision. And when you're
done, you can eat anything you want.
An important point to make about each of those
misrepresentations is that none of them is an opinion. Not
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583
one of them. So if you just go down the list: It's not a
diet, it's not portion control, it's not calorie counting,
that's not an opinion. Words mean things. Something is
either a diet or it's not a diet. That's a fact.
You can get HCG anywhere. That's not an opinion.
Either you can or you can't. It turns out that, according to
the book, you can't.
You can do it at home. That's not an opinion.
Either you can do it at home or you cannot do it at home. The
book says you cannot.
According to the book, only minors need a doctor's
supervision. Well, that's not an opinion either because
according to the book, everybody needs a doctor's supervision.
That's just a fact. That's a fact about what the book says.
And when you're done, you can eat anything you want.
Well, that's not an opinion either. And we just reviewed the
evidence for that.
None of these things is an opinion. And the defense
has suggested that some of these statements in the
infomercials were just the defendant expressing his beliefs.
Well, the parties have a stipulation on this point. It's
stipulation 11. We agree that the defendant was not
prohibited by that consent order from expressing his views and
opinions in infomercials, as long as those views and opinions
did not misrepresent the content of the book. And this is an
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584
important point because if the defendant could just get up in
those infomercials and say whatever he wanted and lie up and
down about the book and then come into court and claim that
those were just opinions, then the court order would be
meaningless. It wouldn't stop the defendant from doing
anything. But that court order is not meaningless. It
actually prevented the defendant from misrepresenting the
content of his book.
Now, I want to talk briefly about these two
companies, ITV and Shop America. You heard a little bit, not
much, but a little bit in this trial about those companies.
And the defense suggested in their opening statements that ITV
was the company that produced and marketed The Weight Loss
Cure infomercials. And we agree. ITV was the company that
produced and marketed The Weight Loss Cure infomercials. I
have no idea what that has to do with any issue that you need
to decide in this case. And it certainly doesn't show that
someone else and not the defendant was responsible for those
infomercials.
Now, I want to go through this quickly. First of
all, a federal judge issued that 2004 order to the defendant.
There were other people listed on that order, but his name was
on it. The order was issued to the defendant. And the
defendant is the one who wrote that book. No one else wrote
it. Those are his words. It's his book.
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585
And the defendant is also the one who made the
infomercials. He's the one who sat there in those
infomercials holding up his book saying call this toll-free
number and buy my book and I will send you my other books for
free. That was the defendant who did that.
And it was also the defendant who was the one who
lied in those infomercials. People from ITV didn't lie in
those infomercials. They were the ones asking the questions.
The defendant was the one answering the questions, talking
about his book and making all of the misrepresentations that
I've already reviewed with you.
And because of all of that, the defendant is the one
who violated this court order. He's the one who lied about
his book in those infomercials.
Now, back to the elements of contempt.
We've talked about the first two elements, the
reasonably specific order and the defendant violated that
order.
There's one element left that I would like to discuss
with you and, that is, that the defendant's violation of the
order was willful. Willful. And I expect that Judge Guzman
will provide you with an instruction that provides a
definition of what it means for something to be willful. And
part of that instruction will be that a violation of a court
order is willful if it is a volitional act done by someone who
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586
knows or should reasonably be aware that his conduct is
wrongful.
So I want to talk to you for just a few more minutes
about the evidence that shows that the defendant knew his
actions were wrongful.
First, starting with the obvious. The defendant knew
that that court order required him to tell the truth about his
book in his infomercials. He knew that because he agreed to
that court order and he signed that court order.
He also knew that in those infomercials, he lied
about what was in his book. He knew what was in his book, and
he knew what he was saying wasn't true. Because those
misrepresentations, including several of the ones that I just
reviewed with you, they weren't little fibs. They were
blatant misrepresentations about what was in the book. The
defendant knew that. It was his book.
And some evidence that the defendant knew that he was
lying about what was in his book is the fact that he tried to
cover his tracks about it. And what do I mean by that? Well,
let me give you an example of the defendant trying to cover
his tracks.
The defendant knew that his book contained a diet.
He knew that it involved portion control and calorie counting.
That's why he described it as a diet multiple times throughout
his book. But he didn't want to sell his book as containing a
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587
diet. He didn't want to have to say that in those
infomercials. He wanted to be able to get up in those
infomercials and say it's not a diet. So what did he do? He
sprinkled in to the book three or four places "it's not a
diet" -- that's what he did -- so that he could claim that he
wasn't actually misrepresenting the book; so that he could try
to get around that court order and make it appear that he
wasn't lying.
But the only reason the defendant had to cover his
tracks is because he was trying to hide what he was doing
because he knew what he was doing was wrong and he was
violating that court order. It wasn't a successful attempt to
cover his tracks, but that's what he tried to do. That's what
he tried to get away with by sprinkling in on a few pages
"it's not a diet."
And there's one other thing that the defendant knew,
and I've talked about it throughout this argument. He knew
that he could sell more books if he lied about what was in his
book. Because if he told the truth, that book wasn't going to
sell nearly as well as if he lied.
And what about this issue of refunds? Because the
defense raised that issue in their opening statement. And I
think Mr. Kirsch said that according to the refund policy,
anybody who wanted a refund got a refund. Well, you had a
chance to see that refund policy. Inspector Carrier read
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588
portions of it to you during the trial. That's not what the
refund policy said.
First of all, in order to get a refund, you first had
to call a long distance number and get a code. If you didn't
have the code, you couldn't get a refund. Then you had to
send the books, ship them back to ITV, and you had to pay to
ship them; both for shipping and handling, you had to pay.
And you also never got a refund for when the books got sent to
you in the first place. So if you sent the book back, you
didn't have a book anymore, and you had to pay shipping and
handling on both ends of that transaction.
So here's another example of where you can use your
common sense. Is every person who is not happy with that book
going to return it, going to ship it back based on that refund
policy? Of course not. That's ridiculous. That's not the
way the world works.
So the defendant knew that he was going to sell more
books if he lied about what was in his book. And that refund
policy was not going to slow him down for a moment.
And I have another question to ask about this issue
of lying in order to sell more books. If that's not what the
defendant was doing, then this question comes to mind: Every
time the defendant misrepresented that book in those
infomercials -- every time -- he made the book sound way
better than it really was. Every time. Was that a
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589
coincidence? Did it just happen by accident? Was it a
mistake? Of course not. That's ridiculous. The defendant
knew exactly what he was doing when he told those lies. He
lied about his book so that he could sell more books.
And I'll come back to the question that I've asked
several times already: What if the defendant had told the
truth in those infomercials? He would have come clean about
the fact that this was a diet. He would have come clean about
HCG and how difficult it is to get. He would have talked
about the need for a doctor's supervision and you can't do
this at home. He would have come clean with people that
you're going to have to severely restrict what you eat for the
rest of your life. And if the defendant had done those
things, if he had told the truth, we would not be here today.
We wouldn't be here. If he had accurately described what was
in the book, he would not have misrepresented the content of
the book. He wouldn't have lied. He wouldn't have violated
that court order. And he wouldn't have been in contempt.
It's because the defendant chose to lie about each of those
things -- so that he could sell more books -- because he chose
to violate that court order, that is why we are here.
Now, I want to conclude -- and I will be brief. The
defense said in their opening statement that this is an
important case and that this case is important to the
defendant. This case is important to the government as well.
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Kirsch - Closing Argument
590
And your verdict in this case will be an important verdict.
But not every important decision that you make in your life is
a difficult decision. And this one is not difficult. The
defendant lied in those infomercials about what was in his
book. He lied repeatedly. He lied blatantly. He willfully
violated that court order, and he was in contempt of court.
And because that is what the defendant did, we ask that you
find him guilty.
Thank you.
THE COURT: Counsel.
Can we have the source changed to the defendant's
computer.
CLOSING ARGUMENT ON BEHALF OF THE DEFENDANT
BY MR. KIRSCH:
May it please the Court, counsel.
Ladies and gentlemen of the jury, I'm going to start
out exactly the same way the government lawyer started his
argument. And he told you why we are here in almost the first
thing he said. He said we're here because Trudeau wrote a
book that deceived people. Do you remember that? That it
deceived people. That's what he said. Who?
I'm going to come back to something during the course
of my closing argument over and over and over. Ladies and
gentlemen, the government did not talk about the burden of
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proof. They did not talk about the presumption of innocence.
They did not talk about beyond a reasonable doubt. And I'm
going to talk about those things.
Ladies and gentlemen, they told you we're here
because he deceived people. And they tell you that they
proved that he acted willfully. And I'm going to talk about
something through the course of the whole trial. They called
two witnesses. Two. Two people. Neither of whom had ever
met Trudeau. Never met him. Didn't know him. All they did
was recognize the man who appears on the cover of that book.
They didn't call anybody from the FTC, a government agency.
Not one single person. They called a postal inspector, and
then they called a nutritionist who is a diabetes expert.
That is their evidence, ladies and gentlemen. That is their
evidence. That is their evidence.
The other thing that I'm going to come back to over
and over, and I want to comment on this, the government said
he lied, he cheated people, he deceived people because he
wanted to sell more books. Now, I want to ask you a question;
and I want you to use your common sense. Back in 2006 and
2007, six years ago, six years ago, when this infomercial ran,
the defendant was 44 years old or so. 45 years old. Now, the
government's theory would be a good one if this was the last
book that he ever intended to write.
I read books. I read those like John Grisham type
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books, John Sandford type books. If I read the last -- you
know, a lot of times in those paperbacks, they have a "read
the first chapter of the next book." Now, I read that chapter
and I thought, oh, this looks interesting; I'll go buy the
book. So I went and bought the book. And then I read the
book, and it was nothing like that chapter. Nothing at all.
I suggest to you I probably never ever ever in my life would
buy another book from that author.
So the government wants to suggest that Trudeau was
motivated by profit. I'm going to talk about that. But if he
had willfully knew what he was doing was wrong, misrepresented
the content of the book, the profit motive would be flipped.
He would never make any money. He would never sell another
book. He would never have another publisher publish a book.
Never. Never. So the financial motive is the opposite.
Ladies and gentlemen, the government -- you're going
to see this throughout the book. The government has hauled
this man in here, into federal court, and they want you to
convict him of a felony, a federal crime, a federal crime.
Now, he has been very critical of the government in the book.
You'll see that. He's been extremely critical of the FTC.
He's been extremely critical of the government. And here he
is.
Now, I want to talk to you -- and I'm going to go
through, ladies and gentlemen, in great detail a lot of the
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things that I thought the government was going to talk about,
but things they just skimmed over. So I expect my closing
argument is going to be a little bit longer than theirs. But,
again, they go first and then they get to go last because they
have the burden of proof. I do not.
You remember at the beginning of the case -- and I
want to remind you of these things and I ask you to think
about them as you begin your deliberations -- the judge told
you there are three basic rules that are the foundation -- the
foundation -- of our entire criminal justice system.
What is the foundation of the system that allows the
government to haul anybody they want in here and make them
answer criminal charges?
Number one, the presumption of innocence. The
defendant as he sits there right now is presumed innocent.
And he maintains that presumption of innocence unless you find
that the government has met each and every element, each one,
beyond a reasonable doubt.
The government has the burden of proof. The
government has the burden of proof. I have no burden to do
anything. I don't have any burden to cross-examine witnesses.
I don't have any burden to make an opening statement, to make
a closing argument, to call witnesses. Nothing. That's the
right that every citizen enjoys when they're called into court
by the government and meant to answer criminal charges.
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Now, I want to comment on that a little bit. I
suspect in its rebuttal case, the government is going to
say -- because I'm going to talk a lot about their witnesses
and the fact that they really didn't call anybody of any
substance in this case. The government is to going to say,
well, Kirsch has the ability to subpoena witnesses too. And,
ladies and gentlemen, that's true. But I do not have the
burden of proof. I don't have to prove anything. The
government has to prove its case beyond a reasonable doubt.
And I want you to think about those words which the government
didn't talk about in its closing argument. Ladies and
gentlemen, that's a heavy burden. Beyond, beyond a reasonable
doubt.
Now, I want to talk to you about some of the things
that the government -- that I told you at the very beginning
of the case that are not in issue. But I want to remind you
of those things.
Number one, when Trudeau entered into that consent
agreement -- and we're going to spend some time talking about
that consent agreement -- he didn't admit wrongdoing. Now,
ladies and gentlemen, I think the Court has already instructed
you of this -- and, by the way, when I reference the Court's
jury instructions, that's what I anticipate that they will be.
If they're different, you should, of course, follow those
instructions. I think they'll be the same, but that's what I
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595
anticipate them to be.
The judge has already told you whether the weight
loss protocol described in the book is effective for weight
loss is not an issue before you. It's not an issue for you to
decide in the case.
We agree that Trudeau was able and permitted to state
his views and opinions. Now, the government has said that
some of these things that Trudeau stated in the infomercial
were not, in fact, his views and opinions. That's why we're
here. They're asking you to decide -- to convict this man of
a crime asking you whether it was an opinion or whether it
wasn't an opinion.
Whether the content of the book is truthful is not an
issue for you to decide. Remember I told you this at the very
beginning of the case. It doesn't matter if you disagree with
everything; I would never do this weight loss protocol; I
disagree with every word in the book; I think that some of the
stuff that he talks about is good for you or bad for you or
whatever. It doesn't matter. The truthfulness of the book is
not in issue.
What is in issue is the following: The government
contends that it proved beyond a reasonable doubt that Trudeau
willfully misrepresented the content of his book. It's our
position that Trudeau did not willfully misrepresent the
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Ladies and gentlemen, I'm going -- the government
didn't show you Exhibit 19 during closing argument. And they
didn't show you my Defendant's Exhibit 2. Because I suspect
the evidence came in a little differently than they had
anticipated it coming in. But I'm going to show you those
things and walk through them. Because, ladies and gentlemen,
the representations in the infomercial were in the book. They
were in the book.
And, ladies and gentlemen, the government suggested
to you that they proved beyond a reasonable doubt that Trudeau
acted willfully; that he knew what he was doing was wrong.
Again, they called two witnesses, neither of whom had ever met
the man. And I'm going to talk about that quite a bit.
So let me -- what does it mean to act willfully? And
the government showed you this slide, but they didn't show you
the next slide that I'm going to show you. And I think what
the judge is going to tell you is that a violation of a court
order is willful if it's a volitional act done by one who
knows or should reasonably be aware that his conduct is
wrongful. So it's not just that you did it; it's that when
you did it, you knew it was wrongful.
Now, the government said, "I don't have any clue what
ITV has to do with this case." Maybe that's what it has to do
with. Maybe I'm going to talk about ITV when I come to that.
ITV produced the infomercial. They marketed the infomercial.
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597
They were aware of the consent order. They had the consent
order. Nobody from ITV came in here and testified, we had a
conversation with Trudeau and said, boy, does this violate the
court order; this comes pretty close. They don't have one
e-mail that says that. Not one document. Not one
conversation with anybody where that was discussed. But yet
they want you to believe that Trudeau knew what he was doing
was wrongful.
Now, I believe the judge is also going to instruct
you on good faith. And I think what the judge is going to
tell you, right after he defines willful for you, is to say,
If a defendant acted in good faith, then he lacked the
willfulness required to prove the offense of contempt with
which he is charged. The defendant acted in good faith if at
the time he honestly believed that his statements in the
infomercials did not violate the court order. The defendant
does not have to prove his good faith.
Remember, I don't have to prove anything at all.
Rather, the government must prove beyond a reasonable
doubt that the defendant acted willfully, as charged.
Now, I talked about five critical facts. And I'm
going to go back to these. And I'm going to go through them
in some detail, ladies and gentlemen, because this is -- this
is incredibly important. I'm going to go through these facts
one at a time. I'll actually take the first two together.
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598
But I'm going to show you all -- you'll remember them from my
opening statement last week.
Trudeau did not willfully misrepresent the content of
the book in The Weight Loss Cure infomercials. The
representations Trudeau made in the infomercials were in the
book. I showed you that time and time again.
The representations included his views and opinions.
Now, the government is asking you, a jury, to find him guilty
of a crime beyond a reasonable doubt by deciding what is a
view and what is an opinion and what is not.
Three -- and this goes to willfulness, and I'm going
to talk about this in some detail -- ITV produced and marketed
The Weight Loss Cure infomercial, not Trudeau. ITV produced
it. ITV marketed it. ITV was the one that ran the
infomercial. ITV was aware of and in possession of the
consent order when they did it. And, ladies and gentlemen, I
told you in the opening statement that there was no evidence,
none whatsoever -- I told the government this in my opening
statement last week -- no evidence that anyone at ITV told
Trudeau that the infomercials violated the consent order.
Nobody. If such a person existed on -- in this world, don't
you think the government would have had him here to testify to
you and said Kirsch is wrong; Trudeau did have a conversation
with somebody at ITV about the contents of this infomercial?
Nobody. They had the consent order. They knew they were
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599
required to follow it. They produced and marketed the
infomercial. And nobody -- nobody -- ever had a conversation
with Trudeau and said maybe this infomercial comes too close.
The Weight Loss Cure contains several disclaimers. I
told you that. I'm going to show those to you again.
And, of course, ITV policy allowed full refunds
unconditionally guaranteed. Well, ladies and gentlemen,
remember the -- there's one thing that kind of struck me as
odd. The government says Trudeau was motivated to make money.
To make money. In their cross-examination of the agent, they
pointed out that there was no refund for shipping and handling
if the book was sent back, I think somehow suggesting that
Trudeau would keep the shipping and handling money. Well,
there's no evidence in this -- Trudeau doesn't work for DHL or
the U.S. Postal Service. He didn't keep any shipping and
handling money. If the book was returned, he got zero. Zero.
He didn't keep the postage that it cost to send the book or to
send -- or to get the book back. He got zero.
So let's go through each of these facts individually
starting with the first two which I take together.
The government's position -- I showed you this during
my opening statement -- is that the representations in the
infomercials either weren't in the book or they misrepresented
its content. And our position is that they were in the book,
and they stated Trudeau's views and opinions. They did not
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600
misrepresent the content of the book. And, ladies and
gentlemen, Trudeau was -- again, he was permitted to state his
views and opinions in the infomercials.
Now, I want to talk to you about the consent order.
And the government said, well, we're just going to put up
"misrepresented the content of the book" real quick on the
screen and then we're going to kind of gloss over that; I
don't want to define that; I'm not going to tell you what that
means; Trudeau just had to figure that out on his own, I
guess. That's what they said. He signed it. He had to
figure out -- he had to figure it out on his own. And guess
what -- guess what if he got it wrong. Guess what the
punishment was if he got it wrong. We haul him into court and
we charge him with a federal crime. That's what happens if he
misinterprets the court order. That's what we're going to do.
Now, it's 29 pages long, that consent order. And
Trudeau is alleged to have violated one clause in 29 pages.
And the government has told you he willfully -- willfully --
violated the court order. Look at all the prohibitions in
that order, ladies and gentlemen. Look at all of them. He's
alleged to have violated one clause from the order and had
done so willfully knowing it was wrong. Everything else he
complied with.
THE COURT: That will be sustained. There is no
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601
evidence as to any other portion of the order.
MR. KIRSCH: I'll restate it.
BY MR. KIRSCH:
There's no evidence -- there's no evidence, there's
no argument that he violated any other portion of the order.
None. The government had no evidence, they brought no charge
that he violated any other portion of the order.
Now, when the government prosecutor said -- I'm just
going to real quickly go over the first element, which is that
it's a reasonably specific order. I'm not going to -- that's
what it says and that's what it says, and I'm not going to
talk about it -- I'm not going to define it for you. He kind
of slipped that in later.
Remember when he said misrepresented the content of
the book means the whole book, not individual parts of the
book. So it's the government's position that if Trudeau says
it in the book, it's not good enough. Remember -- remember
the whole "exercise" cross-examination? It was in the wrong
part of the book. Remember? It was in the early chapters,
not in the late chapters. Remember the government prosecutor
got up and redirected the postal inspector, Silvia Carrier,
and said, well, exercise, it's in the book; it says you don't
have to exercise in the book, but it's in the wrong part of
the book. So convict him of a felony offense. It's in the
wrong part of the book.
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602
Now, when I asked -- you remember I asked Inspector
Carrier on the stand -- I gave her the consent order. I asked
her to go through it, and I -- we were talking -- my question
was talking about misrepresenting the content of the book,
right? And she said correct. And I handed it to her.
Remember, I handed it to her. And she flipped through every
page. And I said, Does it explain what that means? And the
answer is, I don't see a definition of that, specifically
giving an explanation of that.
Now, ladies and gentlemen, if Trudeau misrepresented
the content of the book, even if he did it, to haul him into
court here and convict him of a crime, the government has to
prove that he did it willfully. Willfully. He knew what he
was doing was wrong. But the consent order doesn't even
explain what it means to misrepresent the content of the book.
The government says it's not enough if it's in the book. It's
not enough. That's not what misrepresent the content of the
book means. It means you've got to consider the book as a
whole. But it doesn't say that anywhere in the order.
Nowhere.
Now, you remember -- I want to talk to you -- before
I talk about these other alleged misrepresentations, I want to
talk about what was required by Dr. Simeons' protocol. I
found it a little bit strange that the government was arguing
that Phase 4 was required. Phase 1, they agree -- they didn't
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603
talk about Phase 1 at all in their closing argument despite
spending the hours and hours of testimony going through Phase
1. They now seem to have conceded that Phase 1 is recommended
and not required. Phase 2 and 3 are the protocol that was
described by Simeons. And Phase 4 was recommended or
suggested.
Now, the government has argued to you in their
closing argument that it was, in fact, required. But that's
not what the book said. And, ladies and gentlemen, that's not
what their own witness said. Their argument is inconsistent
with what their own witness testified to you on the witness
stand under oath.
I asked her very clearly, All right. And Phases 1
and 4 were not required; is that right? And she says,
Recommended. That's her answer. So I asked it again, They
were recommended but they weren't required, correct? Answer:
Correct.
Now, the government prosecutor got up here in his
closing argument and argued to you that that testimony was
wrong. It's just wrong. The government agent, their own
witness, one of the only two witnesses that they called to
testify, was just wrong. I want you to think about that,
particularly since they hauled the defendant in here for
misrepresenting the content of the book.
Now, ladies and gentlemen, you're going to get a list
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604
of statements that the government alleges misrepresent the
content of the book. The judge is going to list those
statements for you. It seems as if the government has
abandoned some of those statements because they only talked
about -- we went through that whole big chart, and now it
sounds like we're down to five. But I'm going to talk about
each one because it's important. I think each one is
important.
The first one on the list is that statements that
indicate you can finish or be done with the weight loss
protocol. Now, that is very similar to another statement that
the government alleges was false. And I'm going to talk about
that in a minute.
But I want to show you -- do you remember their
chart -- they didn't show you their chart, but the chart --
you can finish the protocol and after finishing, you can eat
whatever you want. Now, it looks like the representations
have changed a little bit from their chart. They're not
exactly the same. They shifted a little bit from what was in
their chart to what is going to be contained in the jury
instruction I believe. But they're pretty much the same
thing.
Here they say you can finish and be done with the
protocol. Here they say you can finish the protocol and after
finishing, you can eat whatever you want. And they didn't go
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605
back to this chart during their closing argument. They didn't
go back to Government Exhibit 19 because I think if you look
at Government Exhibit 19 -- well, 19 -- everything on 19 is
also contained in 2. Remember, I put everything on 19 in 2
because here are the allegations -- here are the statements
from the infomercial that they say misrepresent the content of
the book. And, ladies and gentlemen, it's all in the book.
It's all in the book. You may disagree with every word of the
book. You may disagree with every single word of it. Every
word. It doesn't matter. What he says in the infomercial is
in the book; and, therefore, he did not misrepresent the book
in the infomercial. It's that straightforward.
He says in the book: "You will be able to eat any
food you want. You can eat whatever you want in the future.
You will be able to eat any foods you want in any amount you
want any time you want. With a high metabolism you can eat
any kind of foods you like in any quantity you want."
Remember the premise of the book, ladies and
gentlemen -- don't lose sight of this. The premise of
Dr. Simeons' protocol is that by doing the protocol, your
hypothalamus gland is going to be reset, you're not going to
be as hungry, you're not going to have cravings and you're
going to speed up your metabolism. You remember that? And so
the premise of the book is you can eat what you want. You're
just not -- you're not going to have cravings for foods that
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606
you shouldn't eat. And, in addition, you're -- you're going
to process the food faster. You're going to be hungry --
fuller. Remember he says in the book -- or in the infomercial
imagine going to a buffet and just eating small portions and
eating a small amount of food. That's the premise of the
book. The government picks it apart here and asks you to
convict him of a federal crime. But that's the premise of the
book.
So he says the even better news is when you're
finished with the protocol, you'll be able to eat any kind of
food you want. Now, the government, they made arguments with
respect to 4; and they said, well, as long as it doesn't
contain high fructose corn syrup and it doesn't have these
other things in it -- and you remember their dietician, their
nutritionist, she gave an example of an Oreo. Remember she
said, well, you can't eat Oreo cookies. She said something
like that, which I thought was kind of ironic because right in
the book, it says you can eat Oreos; just don't eat the
Oreos -- I don't know who makes Oreos; Nabisco or Kraft. I
don't know who makes Oreos. But just don't eat those. Eat
Paul Newman's Oreos. Those are fine. You can eat those. He
says it right in the book.
And then the other statements are consistent. "To
further prove the treatment cured the disorder, all patients
must have the ability to eat normally any food he pleases in
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607
any amount. The simplest rule to follow is eat anything you
want as much as you want as often as you want."
Remember, the premise -- which he was talking about
in the infomercial and he says in the book -- is that you're
not going to want the foods; you're not going to be as hungry;
you're not going to eat as much.
The next alleged misrepresentation: Statements that
indicate the protocol is a cure that corrects the cause of
obesity. Ladies and gentlemen, they didn't talk about this in
their closing argument, I suspect, for good reason. They've
talked about diet instead. Okay. I'm going to talk about
that one, spend some time with that. But you saw over and
over -- I went through page after page after page where the
book describes the weight loss protocol as a cure over and
over and over. That is what the book is about.
So the government says to you, if he told the truth
during the infomercial, he wouldn't be here today. Right?
That's what they said. Ladies and gentlemen, under their
theory -- I just want you to think about this. Under their
theory of prosecution in this case, under their theory of
prosecution, if he did an infomercial and read the book from
cover to cover, read the book, every word of it, under their
theory, he would still be guilty of a crime because everything
he says in the infomercial is in the book. I want you to
think about that.
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608
Over and over and over again he says it: This is a
cure. Yet the government says he misrepresented -- he
misrepresented the book in the infomercial when he said the
protocol was a cure. And I went through page after page after
page on Defendant's Exhibit 2, which you'll have back there,
where it talks about the cure. The titles of Chapters 3, 4, 5
and 7 are Cure. The Weight Loss Cure protocol. I'm not going
to read every one of these to you, ladies and gentlemen,
because you're going to have this back in the jury room. But
you see over and over, page after page after page of cure.
It's a cure. There is a cure.
Now, the one -- the one that the government did focus
on were statements that indicate that people can do the weight
loss protocol at home. And the government says it never says
in the book that you can do the protocol at home. Right? It
never ever says in the book that you can do the protocol at
home. And do you remember, I had a slide on this -- I put it
up there -- because I want to talk to you about what the
infomercial really said about doing the protocol at home.
The -- there is -- and, by the way, you saw me ask
the agent, Agent Carrier, is there anywhere in -- is there
anywhere in the book that says you can't do it at home; and
she says no.
Now, what did I put on the screen? Do you remember
during the infomercial when Trudeau -- the government just --
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609
on 19 -- compare 19 to my 2, okay, Defendant's Exhibit 2. 19
they give you little bitty snippets. You can do it at home,
you can do it at home, anybody can do it at home. They didn't
put it in context at all. They just gave you four little
words and said convict him of a federal crime. These four
little words. That's what they said. I put it into context
for you because I wanted you to know what he was talking about
when he said you could do it at home.
Now, when he said you could do it at home is -- he
did it in a clinic. He went to a clinic. You could -- by the
way, you particularly saw in the third infomercial -- you
could see from the infomercials he had just completed the
protocol. He was excited about it. He had lost like
60 pounds. I don't remember what it was. 45 pounds,
something like that. He shows you the before and after
pictures. You could clearly see that he's lost a significant
amount of weight. He's not lost the structural weight or the
structural muscle from his face. And you can see that in the
infomercials. His skin is not sagging and wrinkling, as
sometimes happens when you lose weight. You can see that from
the infomercials. He's clearly excited about it. He
describes his experiences at the clinic. But he's telling
people that are watching the infomercial, you don't have to go
to a clinic to do it. You don't have to go to a clinic to do
it. You can do it at home.
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610
Now, I suggest to you that if you look at Phase 2 and
Phase 3 of the protocol in the middle of the book, those four
phases that describe Phase 2 and Phase 3, there's nothing at
all in those phases that you can't do at home. All they
require you to do is eat. There's nothing in Phase 2 or 3
that you can't do at home.
But the government wants to convict -- wants you to
convict this man of a federal crime because now they say
because he suggests that you be under the licensed care of a
physician, you can't do that at home? What sense does that
make? Do you have to be in a clinic to do this Weight Loss
Cure protocol? Or a hospital? Or some other type of
facility? No. That's all the point Trudeau is trying to make
in the infomercial.
So look at what the government showed you on
Government Exhibit 19, and then look at what I showed you in
Defendant's Exhibit 2 where I put those statements into
context. And ask yourself if Trudeau was willful --
willful -- misrepresenting the content of the book in those
statements.
Then their -- they didn't show you this one at all.
I don't think -- you see their -- you see their
statements from the infomercials: "You can do it at home,"
"you can do it at home," "anybody can do it at home," "you
don't have to go to a clinic," "you can do it out of your
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home." One after the next.
Well, they forgot one. They didn't list one. They
didn't show you this one. Anybody -- when he's talking about
you can do it -- can you do it out of your home, can anybody
do it, "anybody can do it I believe"; and it's in the book.
Statement of his opinion.
The next one that you're going to see in the jury
instructions, the next government allegation that Trudeau
willfully misrepresented the content of the book: The weight
loss protocol is simple or involves only a few other things.
Now, the "few other things" he said one time. And he said
that -- I'll show you that quote. He said a few other things
in connection with HCG. You take the HCG shots. You take the
natural substance and a few other things. And if you look at
Phase 2 and Phase 3, it truly is a few other things. You
eat -- you eat the food that they tell you to eat and that's
pretty much it. That's Phases 2 and 3. That is the protocol.
They didn't talk about these in their closing
arguments, so I'm going to go fast over these. Statements
that indicate the weight loss protocol is simple. So let's
talk about that because they showed you on Government's 19 the
references to simple, it's simple, it's simple. And over and
over in the book -- now, by the way, when you describe
something as simple, I think most people would view that
generally as a statement of opinion. What is simple for me
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may not be simple for some of you. That is -- that is the
bottom -- I sometimes feel like -- I -- you know, I have to
call the plumber and the plumber will come over and do -- what
I look at and what I see him doing seems like the simplest
thing in the world, but I can't do it for -- I just don't know
how to do that. But I would think that "simple" is not a
statement of fact. Okay. That's just my suggestion to you.
Over and over in the book, he talks about it's
simple. It's simple. It's relatively easy. It will be easy.
It's easy to do. You'll find it enjoyable. You're going
to -- you're not going to have these food cravings. Over and
over. Simple. Easy-to-follow method. Easiest and most
effective way to lose weight. It's easy. Page after page
after page.
Now, the "no exercise" claim, the government didn't
talk about this -- again, they didn't talk about this in their
closing argument so it sounds like they've abandoned this one,
but they didn't talk about it. But I'm -- I still need to
show it to you because it's going to be in there as an alleged
misrepresentation, and the government put it on your chart --
on its chart. But do you remember these are their claims that
he says in the infomercial, you don't have to do any exercise,
no exercise, we suggest and recommend exercise, no exercise,
no exercise, et cetera, et cetera, et cetera. In the book it
says the same thing.
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613
Now, they claim that the recommendation that you walk
is exercise. That's what they claim. But I want you to look
at that. First of all, it's just a recommendation, right?
And Trudeau says, "I realize you might not be able to do this.
You're not going to be able to walk an hour a day. Nobody can
walk an hour a day. But just walk. When you can walk, walk.
Instead of jumping in a cab and going four blocks, just walk.
It's good for you." That's what he says. And remember when
he says walk at a conversational level. Don't get your heart
rate up. This is not aerobic activity. That's what he says.
That's what he talks about when he says walk. Just a
recommendation. Not required. But that's what he said.
But the government wants you to believe that he
willfully misrepresented the content of the book -- even
though it's in the book -- when in the infomercial he said no
exercise is required.
And then you remember, I was struck by the
government's redirect examination of the postal agent after I
pointed these things out. The government got up after my long
cross-examination and asked a few questions about exercise,
making the suggestion that although the book says no exercise
is required, it's just in the wrong part of the book. It's
too early in the book or it's too late in the book; it doesn't
come in the right part of the book. And that, according to
them, is a federal crime.
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614
Now, this one appears in the -- this is one of the
ones that I believe -- the prosecutor talked about statements
that indicate that after finishing the protocol, there's no
restrictions on what you can eat and you'll never have to diet
again to avoid gaining weight. So let's look at what was
actually said during the infomercial, which is on Exhibit 19
and which you're going to have back in front of you, and then
what he said in the book in -- in -- with respect to the book
on Defendant's Exhibit 2.
And what he said is, "You'll able to eat any foods
you want. Eat whatever you want in the future." That's what
he said. Now, I want you to think, ladies and gentlemen, when
he was talking about this in the infomercial and he's
excitedly telling you, you could eat whatever you want, you
can eat hot fudge sundaes; if you want mashed potatoes and
gravy, you can eat mashed potatoes and gravy, I want you to
think again what he's telling you and what he's describing in
the book is that the book was going to change permanently the
way you saw food and the way you -- the way you looked at food
and it's going to stop your cravings.
And, remember, you don't have to believe a word of
it. You can read the book and say this won't stop cravings;
this won't make me any less hungry than I already am or than I
was in the past. It doesn't matter. It doesn't matter
because he has the right to say whatever he wants in the book.
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615
Remember I told you in opening statements that if anybody
wanted to write a book that argued the moon is made of cheese,
you could it. You could do it. In this country you can write
whatever you want in a book. It doesn't matter whether it's
true or false. It doesn't matter.
So over and over and over in the book he says, you
can eat whatever you want. And then the government now --
like I said, with Phase 4, which contains recommendations
where Trudeau says, I know you can't do all these things all
the time; but there are some obviously to be stronger on than
others, like avoiding fast food. Well, I don't think the
government is arguing that fast food is good for you. Okay.
But Trudeau when he says -- when he argues -- maybe he makes
that recommendation a little bit stronger than he makes other
recommendations. But they're still recommendations. Phase 4
is recommendations. That's what the government agent
testified to, and that's what the book says.
So you'll see in Defendant's Exhibit 2 all of these
references, all of these references to after you finish the
protocol, you can eat whatever you want. Page after page
after page of reference.
Then you'll never have to diet ever again to avoid
gaining weight. That's another one. And I put there on
page 16 -- and I'm going to go back to the diet issue. I'm
going to talk about that for some time. But the diet issue on
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616
page 16, Trudeau says, "Although this is not a diet, I'm happy
to report this will be the last diet you ever need." And I'm
going to talk about the -- what the government says. Well, he
says in the infomercial it's not a diet when it really is a
diet. Well, ladies and gentlemen -- well, I'll talk about
that in a minute.
Statements that only minors should do the weight loss
protocol under the supervision of a licensed health care
practitioner. Now, I want you to think about this one for a
minute. And when you get back to the jury room, I want you to
consider this one. Because the government -- the government
has told you that in the infomercial, Trudeau said -- Trudeau
said -- that only minors should do this under the supervision
of a licensed health care practitioner. Right? That's what
they said. In fact, on 19 -- they put on chart 19, when
you're underage, you obviously want to do the weight loss
program. And their allegation is that that statement
indicates that only minors should do it under the supervision
of a licensed health care practitioner. Now -- and then,
again, what they show you when you're underage.
Well, folks, I want to show you what they didn't show
you, the sentence right before that. And when you look at
these infomercials, I want you to consider what Trudeau says
in context. What he says is, Men "and women, all races, ages
and so forth." And then he cuts himself off. He's saying
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617
anybody can do the diet. All races, all ages, all kinds of
people can do the diet. But when he says all ages, he kind of
catches himself, right, and he says, well, wait a minute; if
you're a minor, you should do it -- isn't that what people are
supposed to do? I mean, isn't that what people -- isn't that
what you would expect? He's telling people -- he's telling
listeners, look, if you're a minor, don't just go off and do
this; talk to a doctor first. You see that all the time.
That's what he's doing. He's clearly not saying only minors
have to talk to a doctor.
Look at what their alleged misrepresentation is. I
should have put that word in bold. I didn't, but it says,
Only minors. Only minors. But look what he says in the
infomercial. Is that a misrepresentation for what somebody
should be convicted of a felony offense, a federal crime?
Now, then I -- I asked -- you remember I was
cross-examining Agent Carrier about this representation and I
think she had a hard time explaining why that one was even in
the chart. And then she said something to the effect of,
well, that's the only reference to a doctor's supervision in
the infomercial. I'm not sure what that has to do with
minors, but that's what she said. I asked her, Okay. You say
that the representation is that there are references to a
doctor's supervision, right? And she says, This is the only
time in the infomercial a doctor's supervision is mentioned.
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618
Well, guess what? You remember the disclaimer that I
showed -- folks, I showed you this during opening statement.
It was here for the whole world to see. She told you it's the
only time it's mentioned in the infomercial. But in the
opening statement, I had showed you. I showed everybody that
it was on a disclaimer. It's recommended that you consult a
physician. Do you really think in the infomercial that he was
suggesting that only minors should talk to a doctor?
Statements that indicate while on the protocol people
will have no hunger. We have kind of already covered this
one. I think there's some overlap with some of these alleged
representations. I think there's considerable overlap. But
with respect to this one, on Government's 19, they included
"the protocol causes no hunger; there's no deprivation." And
then I list on Defendant's Exhibit 2 all the time -- all the
times that the book -- that the book talks about that. No
hunger, no deprivation.
You remember -- the government didn't talk about this
during their closing argument, but do you remember Phase 2,
they talk about 500 calories and it's a small diet. But do
you remember, there's a question and answer in the book -- and
I wish I remembered the pages, but you all will remember the
page. There was a question and answer in the book that said
something like is 500 calories safe or is 500 calories
healthy. And the answer was, yes, because the Phase 2, the
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619
HCG or if you're using a substitute product for HCG, what it
does is it breaks up the stored fat.
Remember -- by the way, everybody knows folks who
have gone on a diet that have a problem losing like a
particular area. I mean, my father goes on a diet and he has
trouble -- he loses weight but he has trouble losing his
midsection, his belly.
But the whole point of the HCG issue is that it
breaks down the stored fat. So it says right in the book,
while you're only eating about or approximately 500 calories,
your body is being flooded with 2,000 calories from the
breaking down of the stored fat.
Now, again, you don't have to believe that. You
don't have to believe that that's actually true. It's just
what it says in the book. But when he's talking about no
hunger, no deprivation, he explains why in the book. He
explains it. He explains it right in the book.
And I have it here on the chart for you. I have,
"virtually little hunger or no hunger at all." And, by the
way, I guess hunger -- you know, little hunger or no hunger or
no deprivation, again, these are flooded with statements of
opinions. What one person may describe as no hunger, somebody
else may describe as immense hunger. Their statements -- it's
like pain. I mean, you go to the doctor's office, on a scale
of one to ten, what's your pain. I don't think the doctor is
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calling for a statement of fact. He's asking, does it hurt,
does it hurt you. It might hurt me and it might not hurt
somebody else.
So page after page after page. And I'm not going to
go through them all. You'll be able to go through them all in
the jury room.
Now, there's another one that's going to be on the
list, but you haven't heard anything about it. And I'm going
to talk about it. The government -- it's on the list of
alleged misrepresentations, but the government hasn't talked
about it for one minute during the whole trial. But I have to
talk about it. Ladies and gentlemen, because they're asking
you to convict my client of a federal crime, I have to talk
about it.
Statements that anyone can cure food cravings in two
minutes using the Callahan technique. We've heard almost
nothing about that. But I show you the pages, pages 169, 170,
171, 172, 173, where he talks about the Callahan technique.
So when you see that on the list of alleged
misrepresentations, you can look right to pages 169 to 173
where he discusses and described the Callahan technique. Yet
the government alleges that when he talks about the Callahan
technique in the infomercial, he misrepresents what's in the
book.
But here's what it says in the book about the
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621
Callahan technique. And I've highlighted some of it. But
I'll read you the first one and then I'm going to show you
multiple statements that are similar. "In one particular
patient, strong urges and food cravings occurred 10 to 15
times per day. The patient was told that the next time they
felt the strong urge to eat or a food craving, they were to
use the Callahan technique. The patient took less than two
minutes to apply the technique. Instantly the patient's body
completely relaxed from head to toe. The patient noticed all
the muscles in his face and throughout his body became
completely relaxed. The patient's breathing dramatically
deepened and became much easier and fuller. The strong urge
to eat and the food craving was 100 percent gone." That's
what it says in the book. Now, the government's -- by the
way, they don't show you any statements from the infomercial
on this one. They just tell you that statements that indicate
anyone can cure food cravings in two minutes with the Callahan
technique weren't in the book. Well, there it is. I just
showed it to you. Page 170, page 169, page 172, page 173.
The Callahan technique. The -- apply the Callahan technique.
It took less than three minutes.
Now, let's talk about statements that indicate that
the weight loss protocol is not a diet because I think that
was the one that the government focused on most heavily. And
they say that in the infomercial when Trudeau says it's not a
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622
diet, he willfully -- willfully -- misrepresented the content
of his book. Ladies and gentlemen, the whole premise of the
book, the whole premise, is that it is a cure for obesity, not
a diet. That's the whole premise of the book. So when he
said the exact same thing in the infomercial, that it's a cure
and not just another diet, the government wants you to believe
that he willfully misrepresented the content of the book.
Well, first, let's take a look and see what he says
in the book. "The Weight Loss Cure is not a diet. The diet
programs do not work and actually make you fatter in the long
run. This is why diets don't work."
Now, remember when I told you -- the government
kept -- what if he told the truth, what if he told the truth.
And I said what if he read the book. If he read the book in
an infomercial, if he read the book cover to cover, under the
government's theory of prosecution, he would be guilty of a
federal crime. I want you to think about that. If you read a
book -- if you read a book in an infomercial, you could be
hauled into court and prosecuted for committing a federal
crime. That's their theory of prosecution.
Now, what I mentioned to you before is that -- I
mentioned this to you, the government spent a lot of time
saying that the infomercial misrepresents the content of the
book by saying it's not a diet. But, ladies and gentlemen,
you know from watching the infomercials and from seeing so
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623
much of the book that the book argues that the protocol is a
cure and not just another diet. That's what he's saying in
the infomercial. He's comparing it to other diets that people
are familiar with.
He's comparing it to NutriSystem, Slim Fast,
Dr. Atkins, South Beach. He said it's not one of those. It's
a cure. It's not just another diet. Then he's stating his
opinion. And he even says it in the infomercial. The
government doesn't want you to focus on these statements, but
he says it. "It can, in our opinion and the doctors's
opinion, cure." "I believe it's a cure." He doesn't think
it's an ordinary diet. And that's what he's saying in the
infomercial. That's what he's telling people at home. That's
what he's telling people. He's not deceiving anybody. And if
he was, who?
The government's opinion and why they want you to
convict him of a federal crime is that the weight loss
protocol is just a diet. It's not a cure. It's a diet. But
remember, that's -- their opinion isn't relevant. But that's
what they think. They think Simeons' protocol is just a diet.
Trudeau thinks it's a cure. So they charged him with a
federal crime.
And, remember, whether it's, in fact, a cure is not
for you to decide. The judge has already told you, and I
think he's going to tell you again, whether the content of the
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book is truthful is not an easy -- or is not an issue for you
to decide.
Now, the other one in this representation is that it
doesn't involve portion control, calorie counting, watching
your carbs, watching your fat or crazy potions, powders or
pills. The government didn't talk about this at all in their
closing argument, but I need to touch on it for just a minute.
I think they've abandoned it because they didn't even put it
on Government Exhibit 19. It's not there. You can look for
it everywhere on Government Exhibit 19. It's not there. They
didn't talk about it in their closing argument because I think
they agree what Trudeau was saying in the infomercials when he
made these representations
But what does he say during the infomercials? And
I've got the page numbers there for you, but I'm just going to
tell you what he says. "I have found The Weight Loss Cure.
Not a diet, not an exercise program, not portion control, not
calorie counting, not watching your carbs, not watching your
fat, no crazy, potions, powders or pills. A medical doctor
discovered a cure for the problem of obesity." That's what he
says during the infomercial.
Then he says, "I blew up to close to 300 pounds. I
tried everything under the sun. I read every book on diets;
Atkins, South Beach, Weight Watchers, all the programs;
NutriSystem, Slim Fast, the powders. I bought all the herbs,
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the hoodias, the guaraunas, the ephedras, you name it. And
now these -- the insane medical procedures that people are
looking at like stapling and bands." And then he says, "None
of them work."
And then he says, again, "It's not a single diet.
It's not a single exercise program." And he goes on to
describe how it's a cure. That's the whole premise of the
infomercial. That's the whole premise of the book. That's
what they're both about.
But, folks, there are similar quotes -- and maybe
this is why the government has abandoned this one. There are
similar quotes in the book. In the book he says, "Every year
more and more people are on diets, eating diet food, choosing
low-calorie, low-fat, low-carb products, diet pills, powders,
potions." And he's explaining in the book, the same way he
had in the infomercial, that these don't work. That's his
opinion. He's entitled to it like everybody else is. It's
his opinion.
And he says it in the book over and over and over
again. "When you finish these weight loss programs," talking
about the more traditional weight loss programs, "you remain a
slave to hunger. Fatigue, portion control, calorie counting."
He's distinguishing The Weight Loss Cure protocol from these
other diets. That's what he's doing when he's talking about
no calorie counting, no portion control. It's clearly what
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he's doing.
Again, in the book, he says, "The weight loss or diet
industry consists of companies that sell exercise equipment,
weight loss pills, powders and potions." Same things he says
in the infomercial, same exact things when he's describing the
book.
Hold on. There's more.
"People spend thousands of dollars on pills, potions,
powders." And then he says, "You never" -- in the book, he
says, "You never have to be on a diet again." Remember,
because the whole premise of his book, whether you agree with
it or whether you don't, is that it's a cure for weight loss.
That's the premise of the book. It's not a diet.
I already told you that his statements in the
infomercial -- and you saw them right there -- his statements
in the infomercials were entirely consistent with what was
said in the book.
Now, folks, I want you to think about this. I have
no burden of proof whatsoever. None. Zero. The government,
the party with the burden of proof, they didn't show you these
statements. They didn't show you what he said in the
infomercial during Agent Carrier's testimony, during their
opening statement, during their closing argument. I did. I
showed them to you. I have nothing to hide. I showed them to
you. The government didn't.
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And what I said earlier is -- and you can see it on
the screen -- in the infomercial and in the book, all Trudeau
is doing is contrasting The Weight Loss Cure from more
ordinary and traditional diets that involve portion control,
such as with Weight Watchers; calorie counting, such as Jenny
Craig or NutriSystem; watching your carbs, such as Atkins, the
Dr. Atkins diet, which is a low-carb diet, or the South Beach
Diet, or Sugar Busters; watching your fat, such as eating
fat-free food. You see that a lot; eat fat-free food.
Portions, Medifast, Optifast. You can buy them in the grocery
store. Powders, Slim Fast and Herbalife. Slim Fast I think
is a shake. You pour the powder into water or something like
that and it's your whole day. You get a shake for the
whole -- that's your meal. Pills, Hydroxycut and Lipozine.
That's what he's doing; he's contrasting The Weight Loss Cure
protocol from these other diets. He's not misrepresenting the
And, again, I said a lot of this, that it's the book
and the infomercial -- the book and the infomercial say the
same thing. And I've already described to you -- and I don't
want to do this again, but I've already described to you that
The Weight Loss Cure protocol and what Trudeau is talking
about in the infomercial is telling people in a paid
advertisement that it's a cure. It's different than these
other things because it's going to reset your hypothalamus
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gland; it's going to increase your metabolism. NutriSystem,
Weight Watchers, Jenny Craig, they don't do that. Folks, they
don't even make the argument that they do. That's why he's
saying this is totally different than anything you've seen
before. This is different.
Okay. Another one that the government may have
abandoned, but there was the statements that indicate that
anybody can do the weight loss protocol. That's the statement
that the government says -- now, remember, on 19 -- oh, I
didn't put 19 in there. But on 19, take a look at it, the
alleged misrepresentation is that anybody can do the weight
loss protocol. But the only time that appears in the
infomercial, the only time, he says, "Anybody can do it, I
believe." If you say "I believe" -- what could be a clearer
statement of an opinion? Maybe "in my opinion." But they
mean the same thing, right? I believe, in my opinion. What
could be a clearer statement of an opinion? The government
wants you to convict Trudeau of a federal crime for this
alleged misrepresentation, "Anybody can do it, I believe."
And, by the way, do you remember on
cross-examination, I asked Inspector Carrier, Does the book
exclude any type of folks from doing this? And I think what
she said -- she made a reference, well, there's some reference
in the book to vegetarians. Do you remember that? And then
the next day, I came back and -- so I found that reference
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overnight, and I showed it to you. And what does it say?
Vegetarians can do it, just substitute -- I forgot -- Turbo
Diet or something for the meat portion of the protocol. But
you can do it. Anybody can do it. Anybody can do it. And,
by the way, in the book -- it says it in the book.
"This is very exciting news for anyone who has a
weight loss program" -- or a "problem." I'm sorry. That's
what Trudeau says in the infomercial. That's what he says in
the book.
Failure to disclose the specifics regarding the use
and administration of HCG or statements that indicate that HCG
is a substance you can get anywhere. Now, the government
spent some time talking about HCG as a substance you can get
anywhere. I'm going to talk about that as well. But I want
you to remember what it says on their chart about HCG, what
the alleged misrepresentations are.
Now, do you remember -- do you remember earlier I
made the comment about a few other little things. The
government -- I told you there's some overlap between some of
these representations. There's one that references a few
other things. Well, the government includes it on its HCG
chart. So I'm not sure where they've classified that
statement, but it appears that they've classified it here as
an HCG statement.
And, by the way, the government has not argued that
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it wasn't a few other little things because it is. If you
look at Phase 2 and Phase 3, you take the HCG injections or
you to take the substitute. And then there are a few other
little things. There's no -- there's nothing else you do in
Phase 2 and 3. Phase 1 and 3 are required.
Now, by the way, the government has pointed out to
the back of the book. You know, the back of the book there
are these summaries. There's a summary. And it includes some
things you must do under Phases 1, 2 and 3. And then Phases
4 -- well, Phases 1 and 4 are recommended. They're
recommended. That never changes. But Phase 3, there are some
inconsistencies with what is contained in the text of the book
and what is contained at the end of the book. But, ladies and
gentlemen, the government has not argued that inconsistencies
in the book -- that if the book is internally inconsistent
between one page and another page, that that's proof of a
crime. It's not a crime to be internally inconsistent. To
the extent there are some inconsistencies in the book, it's
not criminal behavior.
But when he talks about HCG, he talks about it in the
infomercial and describes it as an all-natural substance; you
can get it anywhere. And he talks about it, again, as an
all-natural substance. Well, what does he say in the book
about HCG? It's an all-natural substance. It's a hormone.
That's all it is. It's an all-natural substance. Now, in the
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infomercial, he doesn't say HCG. But if he had said HCG, I
think the government would be in here saying he didn't
describe what HCG is; that's a crime. But since he described
what it is and didn't call it by name, they're saying, aha,
that's the crime. So, again, if he had read the whole book,
would anything have changed here?
In the protocol and in the book, he talks several
times about options that are available to you in the event
that HCG is unavailable. There are several options. Several
things you can do. He talks about it repeatedly. There are
other alternatives. There are other alternatives. He says it
in the book. So even HCG that -- the government says he
didn't say enough about HCG in the infomercial, he didn't say
enough about it in the infomercial, but there are substitutes.
So what if he said more? Then would they claim, well, he
didn't say anything about substitutes? Where does it end?
Page after page after page talking about it as a
natural substance, as a natural substance, which it is. It's
a hormone. The government has not argued that it's anything
else but a natural substance. Talking about what it does and
how it's used in weight loss. Page after page after page, all
on Defendant's Exhibit 2.
Now, the government made an issue out of, "You can
get it anywhere." I think Trudeau said that one time in the
infomercial. In one of the three infomercials, he said you
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can get it anywhere. Now, in the book he says -- he says
that. He says you can -- well, he says -- he says in the
book -- let's see exactly what he says in the book because the
government didn't show you what he said in the book. In the
book he says, "The FDA" -- "According to the FDA, it is, in
fact, legal for doctors in America to prescribe medications
for purposes that are not approved by the FDA."
In other words, the FDA cannot regulate the practice
of medicine. They can't do it. They can't regulate the
practice of medicine. So it is legal.
Now, folks, do you remember the government talked --
had a big issue about they can get it anywhere. Remember my
cross-examination of Inspector Carrier? I asked her, Did you
look at the references in the back of the book? No. Not one.
Not one. We hauled this man in here. We charged him with a
federal crime. Didn't look at one. Not one. Did you go to
the Web site? No. Not once. Remember, I -- first she said,
well, I think it's a fee-based Web site. Maybe suggested that
the federal government couldn't access the Web site because
there was a fee involved?
But Trudeau says right back there in that section on
page 252, "Clinics that use HCG in the Simeons weight loss
protocol." He says in the infomercial, "You can get it
anywhere." That's what he says in the infomercial. In the
book he tells you where to get it. He tells you where to get
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it. But the government hauled him into court, and they didn't
think it was important enough to look and see, can you get it
where he says -- they didn't even look. They didn't even
look. He says you can get it anywhere. Then in the book, he
tells you where to get it. He tells you where to get it. Not
a shred of evidence -- not a shred -- that you can't get it in
those places. Not a shred of evidence.
And, by the way, when he says you can get it
anywhere -- remember the government's first claim was that he
didn't mention HCG. He only mentions an all-natural substance
that is used in conjunction with the protocol. Remember
they -- their first claim is he didn't mention HCG. But then
they later say that, well, there's this claim that you can get
it anywhere and that's false. But he never said you can get
HCG anywhere because he never said HCG. And clearly the
government has no evidence whatsoever that these substitute
alternate products for HCG can't be obtained anywhere. None.
Zero, ladies and gentlemen. Zero evidence of that. Zero.
And, by the way, I just crossed out a page on
Defendant's Exhibit 2, which is the protocol is inexpensive.
That was on their chart 19. That was on their Government's
19. You'll see it. It was on mine too. It's not even in the
list of alleged misrepresentations that are included in the
jury instructions. It's not even on the list.
Now, ladies and gentlemen, I've gone through the
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first two; and the next two are going to be quicker because
I'm going to talk about -- but I think that was important, and
I'm going to talk about now willfulness. And points three,
four and five go to willfulness. And I want to remind you of
the definition of willfulness.
So this is -- by the way, the way the jury
instructions read, element number one that the government has
to prove beyond a reasonable doubt is a reasonably specific
order. If you're debating what is meant by misrepresent the
content of the book, it's not proof beyond a reasonable doubt
that the government has met element number one. You'll never
get to two and three.
Two is that there were misrepresentations in the
book; that the book misrepresented the infomercial. You never
get to willfulness -- I submit to you you're not going to get
past element number one; but willfulness only comes into play
if you conclude that there was one misrepresentation or the
defendant misrepresented the content of the book. Then you
get to the issue of willfulness.
But -- and you guys -- when you get back in the jury
room, you decide how you're going to deliberate. You can take
issue number three first if you want to, willfulness, if it's
easier for you. You do whatever you want when you get to the
jury room. And maybe it will be because there is zero
evidence of willfulness. Zero. Willfulness is that a
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violation of a court order is willful if it was done by
someone who knows or should reasonably be aware that his
conduct was wrongful.
And remember, the judge is going to instruct you on
good faith. And I want you to remember that I do not have to
prove Trudeau's good faith. I don't have to prove anything.
It's the government that must prove beyond a reasonable doubt
that Trudeau acted willfully. Now, I want to ask you what
that means.
What is the government's evidence that Trudeau knew
or reasonably should have been aware that his conduct was
wrongful or that he did not honestly believe his statements
complied with the court order?
In other words, the government has to prove Trudeau's
state of mind. What evidence is there of Trudeau's state of
mind? Ladies and gentlemen, I submit to you, there is none.
Not a single witness testified to Trudeau's state of mind.
There are no statements from anyone to Trudeau or
from Trudeau to anyone. None. For the ITV evidence that I
told you wouldn't be here in opening statements, if the
government had it, they would have presented it to you. There
is none. There are no e-mails. There are no other documents,
none -- none -- that indicate Trudeau knew what he was doing
was wrong and did it anyway. And I'm going to talk to you
about this in some detail. But, ladies and gentlemen, there
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is absolutely no financial motive to misrepresent the content
of this book in an infomercial. None. Zero.
So I told you at the beginning, I started with this
and I told you -- who were the government's two witnesses?
Silvia Carrier and Melissa Dobbins. And let's talk about what
these witnesses could not establish, particularly with the
issue of willfulness.
Folks, they never met Trudeau. How can you comment
or testify on someone's state of mind if you never met the
person? That doesn't even make sense. They never met
Trudeau.
Folks, when I -- if you remember my opening
statement, I put three principal players up on the screen:
Trudeau, ITV, FTC, the Federal Trade Commission, an agency, an
agency of the federal government, a party to the 2004 consent
order. They were the ones that negotiated the consent order
with Trudeau. They negotiated the thing with him. The
government didn't call one single witness from the FTC, from
their own agency. They didn't call one. Not one to tell you
this is what Trudeau knew about the consent order when he
signed it; this is what was explained to him about what
misrepresent the content of the book means; this was our
negotiation; this is what Trudeau said; this is what we said;
this is what misrepresent the content of the book means.
Ladies and gentlemen, think about that when you're
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637
deliberating the case. They want you to convict this man of a
crime beyond a reasonable doubt, but they didn't even call a
witness from their own agency. At least they could have had
an FTC witness read the book. They didn't even do that. They
called a postal inspector. Now, I have nothing against them
calling a postal inspector; but what does the Postal Service
have to do with this case when the consent order was
negotiated by an arm of the federal government? Why wouldn't
they call a witness from the FTC? I don't have a clue. I
suggest because the evidence would not have helped them if
they had.
I showed you this already, but I want to talk about
this just in the context of willfulness. The government has
alleged that he violated eight or six or ten, whatever it is,
words of a 29-page order. That's what they have alleged. And
they have alleged that he did it willfully; that he knew it
was wrong when he did it. Eight words.
And remember, he willfully, willfully, misrepresented
the content of the book. But when I asked the government
agent, does the order even say what that means, she said no,
it doesn't. So, folks, I submit to you that even if you find
that it was a reasonably specific order, it certainly wasn't
reasonably specific enough that somebody could willfully
violate it; that somebody knew what they were doing, knew it
was wrong with -- with that. I mean, the only -- they didn't
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638
call a witness from the FTC. They called a postal agent.
That's who they put on the witness stand. They could have
called anybody they wanted. That's who they chose to call to
present their case, to present their evidence to you. And
when I asked her, Does it explain what that means? The answer
was, I don't see a definition of that, specifically giving an
explanation of that.
So, folks, I submit to you that even if you find it's
a reasonably specific order -- I don't think you will, but
even if you do, there's no way that you could find that he
violated it willfully; that he knew it was wrong. I mean,
this is not such an order that is so crystal clear that the
explanation is clear from the order. You look at the order,
it's page and page of definition. And if it was so clear, why
wouldn't the government just put a witness on from the FTC who
would say Trudeau said it was clear, he understood it, every
word of it, or whatever; he had a conversation with me and --
they never did that. Never.
I want to go on to ITV because I think this is also
relevant to the issue of willfulness. The government
prosecutor said he didn't have any idea what this had to do
with the case, which surprised me a little bit because I
talked about this in opening statements. I set out my five
facts, and this was one of them. And I told you in opening
statement exactly what this had to do with the case.
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639
Ladies and gentlemen, you'll see that the parties
agree -- and I read this stipulation during my cross-
examination of Agent Carrier -- Alliance Publishing granted to
ITV -- Alliance Publishing, by the way, you'll see from the
book, it was published by Alliance Publishing -- Alliance
Publishing granted to ITV the exclusive right to produce and
market The Weight Loss Cure infomercial and to market and
supply The Weight Loss Cure book through direct response
channels, also known as infomercials. ITV's production. ITV
was marketing the book.
Now, what else did I tell you about ITV? ITV had in
its possession a copy of the order. Don't you think if this
was willful, if it was so obvious that everybody knew that
what he was doing was wrong, somebody from ITV would have said
to Trudeau, wait a minute, wait a minute here; we got this
order, okay, that says you can't misrepresent the content of
the book; we got this infomercial that we're going to run, by
the way; we're going to be responsible for it, we're going to
produce it, we're going to market it, we're going to show it,
we're going to put our little ITV logo on it, maybe we've got
a problem here. None of that. There's no evidence of that at
all. There's no evidence. There's no -- no evidence that ITV
said a word to Trudeau. But the government wants you to
believe that Trudeau willfully violated the order.
And I just made that point, folks, and I put it in
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the opening statement. I put it out here for the whole world
to see, for the government, all of the agencies of the
government, the FTC, the postal inspector service, I told
everybody in the government last week in my opening statement
that there would be no evidence that anyone at ITV told
Trudeau that the infomercials violated the 2004 consent order.
If there was such evidence, if there was, after I put this on
the screen last Monday, I suggest to you that the government
would have found that witness from ITV, hauled him in here to
court to testify to you to say, Kirsch got it wrong in his
opening statement. I didn't have to do that in my opening
statement. I didn't have to tell them what the evidence was
going to be and what it wasn't going to be. I didn't even
have to give an opening statement, but I did. I did. And
they still didn't call a witness from ITV. Not one. They
called a postal inspector and a nutritionist whose expertise
was diabetes. She had never met Trudeau. Neither one of
them. And they want you to convict the man beyond a
reasonable doubt on his state of mind.
I'm going to go to slide number four, and I'm going
to do this one quickly because you've already seen these. But
throughout the infomercial, throughout the infomercial,
Trudeau includes several disclaimers. He tells the viewers,
this is a paid advertisement. It's right there. It's a paid
advertisement. Brought to you by Shop America, which,
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remember, I showed you the stock purchase agreement. ITV
purchased Shop America. It's recommended that you consult a
medical doctor. It's not been approved by the Food and Drug
Administration.
Now, this is quite obvious. I mean, you'll see it in
the book and I told you at the very beginning that Trudeau
time after time after time just rails on the federal
government. He rails on the FTC. He rails on the FDA. And,
in fact, I even showed you a quote from the book. He quotes
the former commissioner of the FDA as being critical of the
FDA. I think it was the FDA. It might have been the FTC.
But you remember. It was the heading -- the quote from the
heading of the book -- or from one of the chapters.
But it's clearly not approved by the FDA. He tells
all the world that. ITV tells the world it's a paid program.
There's no question this is a paid advertisement. It's an
advertisement. That's not a news conference. It's not
anything like -- it's an advertisement in which people
commonly state their views and opinions. Watch any TV
commercial for any product, any single product, it's the views
and the opinions of the people that are making or selling the
product. That's what it is. That's what advertising is. The
preceding was a paid program, right on the infomercial for the
whole world to see.
And, five, the unconditional guarantee. I want to
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talk to you about this because the government talks about this
and says it's not important because Trudeau -- Trudeau wanted
to -- he wanted to make money. He wanted -- he got on -- he
got on the infomercial. He deceived people. I don't know
who. But he's the No. 1 New York Times best-selling author.
You saw that over and over. Folks, I submit to you that you
don't become a New York Times No. 1 best-selling author by
running an infomercial. Okay. And I'm going to talk about
that in a little bit. But he deceived people. That was the
first claim -- I don't know who because there's no evidence of
that. But he deceived people and he was motivated by profit.
But, remember, I put this exhibit in evidence, not
the government. I put it in evidence. ITV exclusively
marketed and distributed the book. And ITV had a return
policy. Now, I think the government has suggested to you in
both cross -- redirect examination of Agent Carrier and also
through their closing argument that this wasn't good enough.
It wasn't good enough. And it wasn't good enough for a couple
of reasons.
Number one, if you want to call customer service to
order a product, you called a 1-800 number. But if you want a
return authorization, you had to call a toll number. Now,
folks, I can't remember the last time I paid for a toll call.
I can't remember. I can't remember when the last time --
maybe I was in college when it cost five cents a minute to
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call long distance. I can't remember the last time I paid for
a toll call.
The "you need a code." What product do you return
ever by mail where you don't need some type of code or a
return authorization, right? You need some label. You need
to know where to send it. You need a code.
And then they say, well, Trudeau was motivated by
profit. He was motivated by profit because they didn't give
you the shipping and handling. What sense does that make?
Trudeau didn't work for DHL or UPS or the Postal Service. It
cost money to ship something. All they're saying is you pay
the shipping and handling. How could that drive a financial
motive? That just doesn't make any sense to say their return
policy is no good. It doesn't refute the financial motive
piece of the government's case because the customer still had
to pay for shipping and handling. But Trudeau didn't see a
penny from the shipping and handling. So it just makes no
sense.
Folks, if he was motivated by financial motive and he
wanted to misrepresent the book and he wanted people to buy
the book based upon misrepresentations, would he have said
time and time again in the infomercial -- he didn't have -- by
the way, he did not have to say this. When a book was sent
out, it was sent out with ITV's policy. He did not have to
say in the infomercial over and over and over again -- by the
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way, who does this, misrepresent a product, misrepresent a
product in an infomercial -- that's the whole purpose of the
infomercial according to the government -- but then in the
infomercial says, oh, by the way, if you don't like it, just
send it back? Who does that? What he -- he willfully
misrepresented the content of his book in an infomercial; he
willfully -- he knew it was wrong. He willfully did it. But
at the same time he told the people that were watching the
infomercial, oh, by the way, if you don't like the book, just
send it back. What sense does that make when you -- did
you -- he willfully violated a court order by telling people
if you don't like it -- if you don't like -- if you don't like
it, if you don't agree with what I said in the infomercial,
folks, send it back. Send it back. He says unconditionally
guaranteed. If you're not thrilled, send it back.
Unconditionally guaranteed. Unconditionally guaranteed. He
explains what that means. If you're not thrilled, send it
back for a refund. Then he says -- remember he sends them the
New York Times best-selling Natural Cures and Natural Cures
Revealed, the two Natural Cures books. He says, oh, by the
way, if you send this book back, if you don't like this book
and you send -- just keep the other ones. Now, does that
sound like someone to you who is worried about postage and
handling? Just keep them. Save the postage and handling.
You can have them for free. So, in other words, you can buy
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his book -- I'll send you my two books for free. Then you can
send the book that you bought back and you can keep the other
two books. So you get my books for free. You get two books
for free. Is that somebody that's motivated for financial
gain? He says, again, if you're not thrilled, send it back
for a full refund.
Then, folks -- and I'm coming near the end here, but
I want you to think about this. As I mentioned to you,
Trudeau was 45 years old or so when he wrote this book. If he
wrote this book -- you saw that he's written other books. New
York Times No. 1 best-selling author. He's written other
books that have made it -- just on the New York Times -- not
just on the New York Times best-seller list. No. 1. Somebody
bought this book and somebody liked it. Okay. You don't just
get to be the No. 1 New York Times best-selling author by
accident. It just doesn't happen because you marketed
something in an infomercial. Okay.
So the government -- they didn't put on any evidence
of how many books he was selling from the infomercial versus
the retail stores. Remember, Trudeau said it's available at
Wal-Mart, Costco, Waldenbooks, Barnes & Noble. He says that
in the infomercial. It's in there. Look for it. You'll have
the transcript. It's in there. He says it. It's in there.
It's available at the retail stores. Okay. It's available at
the retail stores.
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Now, if you misrepresent the content of the book in
an infomercial, people buy it, they think, this guy sold me a
bill of goods, would you buy his next book? Think about that.
Think about that. Would you buy his -- if you bought a John
Sandford novel and you read the book, you thought, gosh, this
book was great; I can't wait until he comes out with his next
book. I sometimes do that. Okay. I read the last chapter,
it says, read the first chapter from the exciting new book
coming out by John Sandford at Christmastime. And I read that
chapter. I read it. I think, boy, I am interested in this
book. Sparked my interest. I want to buy his book. It comes
out, and I buy it. And the book is about something totally
different. I would never buy another John Sandford book.
Never. Would anybody? I mean, you go from the New York Times
No. 1 best-selling author to not being able to publish another
book? But that's what the government wants you to believe
that this man did. He was motivated -- I mean, that has to be
the most short-sighted thing that I could possibly imagine.
Willfully -- willfully misrepresent the content of a book in
an infomercial so I could sell more of this book even though I
know I'll never sell another book because nobody that bought
this book will buy my next book. That makes no sense.
Then the other thing that makes no sense, not only
future book sales, but what about the referrals and
recommendations. How many times have you read a book or
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you've done something like that or seen a movie -- you see a
movie, and your buddy says to you, Did you see Captain
Phillips or whatever the movie is, you know, did you see Last
Vegas. I did. It was great. It was really funny. Well,
will you go to see it? And you think about that
recommendation. Well, he said it was good, so I'll go see it.
Now, you say to your buddy, Did you see Last Vegas and your
buddy says I thought it was terrible; the trailer, the little
movie trailer, totally misleading and deceiving; it was
terrible; horrible movie. Would you go see -- would you go
see the movie?
So the government wants you to believe that Trudeau
is marketing and selling these books by misrepresenting the
content. But the people that bought the books, if he had done
that, would they have sold it? Let me ask you this: Would
they have recommended it to anybody else? No. Would they
have sent it back for a refund? Probably. Trudeau would have
had nothing. Nothing. And they would have never bought his
book in the future.
So to believe that somebody would misrepresent --
willfully misrepresent the content of the book in an
infomercial, that's what you have to get over. That's what
you have -- he would never be able to sell another book again.
Nobody would refer the book to their friends, so he would
never sell a book at Waldenbooks or -- I don't even know if
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they exist anymore. But Waldenbooks or Books a Million,
Barnes & Noble, Wal-Mart, Costco, Sam's Club. He'd never sell
a book there because nobody would recommend the book to their
friends. And -- so he'd never sell another book. He would
not sell The Weight Loss Cure book through the retail stores.
And people would send it back.
So I guess other than those three things -- I don't
even understand the argument, folks, that you would willfully
misrepresent the content of a book to -- now, I could
understand if there was no refund. If you -- all sales final.
Right. Everybody has bought something all sales final. And
at least when I do it, I kind of pause and hesitate. Right?
I mean, I can never return this. But I really want this. I
really want this tie or I really want these shoes or -- all
sales final. He never said that. Never. Not once. Wouldn't
you think if somebody was willfully, willfully misrepresenting
the content of the book, they would say all sales final? All
sales final. Do you think they'd say, buy the book, I'll send
you my two previous New York Times best-sellers and if you
don't like The Weight Loss Cure, send it back for a full
refund and keep the other two books? Keep the other two
books. Is that the way -- is that the way to financially
profit? You wouldn't run a business in America like that. I
mean, none. What sense does that make?
Ladies and gentlemen, I'm at the end here. And I put
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up for my last slide my five critical facts because I think
these facts -- I think -- I respectfully suggest that you
consider these facts as you deliberate on this case. And,
ladies and gentlemen, this -- the decision is incredibly
important to this man, this author. I'm not suggesting --
anyway.
It's very, very important. You know that. The
government has asked you to convict him of a federal felony
crime. And, ladies and gentlemen, I submit to you that the
government's evidence doesn't come close. It doesn't come
close. I do agree with the government that this is an easy
decision.
Folks, when you haul somebody into federal court and
you make them answer and respond to federal criminal charges,
there's no way that this can be proof beyond -- beyond a
reasonable doubt on all three of these elements. The
government didn't even call a witness -- not one witness from
the FTC, not one from ITV, not one that even knew Trudeau to
talk about his state of mind. They want you to convict him of
a federal crime on state of mind evidence, of which there is
none. Zero. I want you to think about that please as you
deliberate.
Thank you for your attention. And I respectfully
request that you return a not guilty verdict as to the
defendant Kevin Trudeau.
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THE COURT: Well, we're exactly at noon, ladies and
gentlemen. And you've been sitting there for quite a while.
If I thought we could take a break and then finish the
government's final closing and your jury instructions and
still get you downstairs in time for lunch, that's what we
would do. But I don't think we can do that. So we're going
to break for lunch at this time. Return at 1:00 o'clock. At
1:00 o'clock, ladies and gentlemen, we'll have the
government's final closing argument and your instructions on
the law.
As always, do not discuss the case with anyone or
allow anyone to discuss it with you. That includes among
yourselves. Use the elevators on that side of the building.
Have a good lunch.
(Jury out.)
THE COURT: Since you folks have obviously been busy
in court, I have a proposed jury instruction that you can
consider regarding the video recordings.
You may all be seated, by the way.
It reads as follows: You have seen video recordings.
This is proper evidence that you should consider together with
and in the same way you consider the other evidence. I am
providing you with the recordings and a device with
instructions on its use. It is up to you to decide whether to
view and listen to any of the recordings during your
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deliberations. You may, if you wish, rely on your
recollection of what you saw and heard during the trial.
MR. KRICKBAUM: No objection, Judge.
THE COURT: All right. I'm going to attempt to have
this inserted probably after the jury instruction on page 11,
which instructs on the use of the charts that were admitted in
evidence. And I'll try to have these retyped and renumbered
so that the page numbers are consistent. I think we can do
that. If not, I will let you know. Otherwise when we come
back from lunch, I should have a set of the new instructions
incorporating this one.
MR. KRICKBAUM: No.
THE COURT: Okay. 1:00 o'clock.
(Trial recessed until 1:00 p.m. of the same day.)
* * * * *
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EASTERN DIVISION
)
Plaintiff, )
)
v. ) No. 10 CR 886
)
) November 12, 2013
Defendant. ) 1:00 p.m.
APPEARANCES:
MS. APRIL M. PERRY
Suite 500
(312) 353-5300
(312) 558-5600
Attorney at Law
17th Floor
(312) 420-9263
Court Reporter: MS. MARY M. HACKER
(312) 435-6890
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Perry - final
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(Proceedings out of the hearing of the jury:)
THE COURT: I will rely upon you to let me know if
there's anything wrong with the latest set of jury
instructions before I read them. But I think they should be
exactly the same as the others, with the inclusion of the
additional instruction.
Ready?
THE COURT: Let's bring the jury out, please.
MS. PERRY: Judge, can you please turn on the
government's laptop screen?
THE COURT: You want -- I'm sorry, the --
MS. PERRY: Laptop.
THE COURT: Okay.
MS. PERRY: Thank you.
THE COURT: Welcome back, folks.
Government?
FINAL ARGUMENT ON BEHALF OF THE GOVERNMENT
MS. PERRY: For as long as there have been people who
have hoped and dreamed for a better life, there have been con
men trying to sell them things that are too good to be true.
The defendant is one of those con men.
Now, Mr. Kirsch asked you, why would he do this if
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Perry - final
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he wants to sell more books? Because that's what con men do,
because there's always another group of people who want
something better. Last time it was people who had diseases,
this time it's people who are overweight, next time it will be
an entirely different group of people to take advantage of.
That's what con men do. And they're able to do it
because they can run the con and still make money. And now
he's here trying to con all of you with more
misrepresentations about what the facts were, about what the
government's arguments are. It's all smoke and mirrors.
Don't buy what he's selling.
So let's talk about what the evidence actually was.
Let's start with the court order and whether or not it's
reasonably specific.
Now, Mr. Kirsch told you it was long, 29 pages,
couldn't possibly be reasonably specific. But use your common
sense. Sometimes things are long because they are incredibly
specific. It's the difference between telling your teenage
child, don't do anything while I'm gone that I wouldn't
approve of and leaving them a 29-page list saying, no parties,
no friends, no alcohol.
Now, when you come home and your house is trashed, do
you believe that you need another witness in there to explain
to you exactly what happened? Do you need someone to tell you
that their behavior was wilful? Of course not.
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Perry - final
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The list is specific. The court order is specific.
And you can read through all 29 pages if you want, but the
parties agree that there's only one phrase that matters:
Don't misrepresent the content of your books.
Mr. Kirsch got up here and said, ooh, that's very
confusing. No, it's not. Don't misrepresent the content of
your books.
According to the About the Author section in his
book, this man built a $2 billion global empire, a $2 billion
global empire. He doesn't know what it means to misrepresent
the content of a book? Well, I guess it depends on what the
meaning of content is.
Well, he has a whole section of his book labeled
Contents. Those are the contents of his book. He wasn't
about to lie about them. He wasn't supposed to lie about them
and it's just that simple.
These aren't words that need a definition. And if
they did, don't you think his lawyer would have put one in?
Remember what this court order was. This was an
agreed negotiated settlement. Agreed and negotiated because
he had been charged with false acts and deceptive practices.
And if you look at the second page of that court
order, it says that the Court held a hearing on September 2nd,
2004, and during that hearing the Court discussed what was
meant by the court order. And the defendant had a lawyer at
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Perry - final
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that hearing. If there were any questions they would have
been answered, but there weren't because "misrepresent the
content of your book" is something everyone understands.
He didn't have to figure it out on his own, ladies
and gentlemen; there were a lot of people to help him. But he
didn't need help. What he decided to do instead was violate
the terms of the court order because he wanted to make more
money. The problem isn't that it wasn't specific; it was that
he didn't want to follow it.
Now, let's move on to the statements section. The
statements were in the book, Mr. Kirsch said. First of all,
that's just not true. And Mr. Krickbaum took you through some
of the statements that weren't in the book and I'll take you
through another couple of them.
First, in Government Exhibit 3 the defendant said no
crazy potions, powders or pills. That statement does not
appear anywhere in the book. He talks about powders and pills
with respect to other diets, but nowhere in the book does he
say his diet does not require potions, powders or pills. What
does it say instead?
On Page 128, three separate times it says you have to
take HCG in a powder form. What else does it say?
On Page 220, you have to do a colon cleanse, krill
oil, digestive enzymes, probiotics, must do. Pills --
potions, powders and pills, ladies and gentlemen.
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Perry - final
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What about HCG? Now, the first thing Mr. Kirsch said
was, well, there's lots of things he said about HCG that were
in the book. I guess that's true. But the most important one
is that he said you can get it anywhere. Nowhere in the book
does it say you can get it anywhere. It says the opposite.
In fact, there's a whole Frequently Asked Question
section about what happens if I can't get HCG. And Mr. Kirsch
said, oh, well, that just means that he's trying to be super
helpful and that you don't have to do HCG.
Go back to the infomercials. They talk about his
protocol, which is the Simeons diet which requires HCG. Just
because if you can't get HCG you can go do a different diet
that you read about in a different book, doesn't mean he
didn't have to be honest about the diet he was selling. And
the diet he was selling required HCG. It's just that simple.
Right there.
Two: Misrepresentations. Even if you believe the
defense argument that they have to be somewhere in the book,
two misrepresentations that weren't anywhere in there and you
only have to agree on one. But, of course, you know that that
is a silly definition of misrepresenting the content of the
book.
So try this on for size. I just wrote in the front
of the book this is a book about the Civil War. Did I make it
a book about the Civil War just because I put at the very
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Perry - final
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beginning this is a book about the Civil War? Of course not.
If I tried to sell you a book about the Civil War and
you got this, would you be disappointed? Yes, because the
content of the book does not mean misquoting a portion of the
book; it means the book as a whole.
So when the defendant said in Government Exhibit 3,
no food deprivation whatsoever and then you get that book, he
misrepresented its content. For six weeks no breads, no
pastas, no starch, no rice, no potatoes; for six weeks no
sweets or sweeteners of any kind. That is food deprivation,
ladies and gentlemen. And he doesn't change that just by
saying in one part of his book, no food deprivation.
And if you want to keep the weight off forever, which
is the whole point of during a cure in the first place, for
the rest of your life no restaurant food, no pizza, no
sausage, no pepperoni, no deli meats. The list went on and
on. That is food deprivation. And he doesn't make it any
less of a diet just by saying in three places it's not a diet
and then in 25 places saying it is.
Use your common sense. What he was selling was a
diet, and he knew if he told people that, they wouldn't buy
it.
Ladies and gentlemen, if it looks like a duck,
waddles like a duck and quacks like a duck, he doesn't make it
a dog by putting a little name tag on it that says that's a
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Perry - final
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dog. He misrepresented the contents of his book.
So let's talk about this idea, oh, well these are
really just all opinions anyway, right? Of course not. You
can count them yourself, but I believe in an infomercial he
says, "I, in my opinion" a single time and he says, "I
believe" three times. So in four places in all three
infomercials he says that something is his belief or his
opinion.
Most of the misrepresentations are not those parts.
There's only one misrepresentation where he says, "I believe,"
and that's the one that Mr. Kirsch talked about, "Anyone can
do it, I believe."
But the parties stipulated that he still doesn't get
to misrepresent the contents of his book. And what does that
mean? That means he doesn't get to say, "Anybody can do it, I
believe." It's when you get the book it makes clear that
anybody can't do it.
So who can't do it? Vegetarians can't do it. They
have to do a different diet from a different book. People who
get -- can't get HCG can't do it. They have to do a different
diet from a different book.
Who else can't do it? Anyone who relies on
medication to live: Diabetics, people with high blood
pressure, high cholesterol, heart problems, anyone whose
doctor won't agree to take them off their medication.
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Perry - final
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And according to the defendant, the list of people
who need medication? Seventy percent of Americans, according
to him. Anyone can't do this diet. And he doesn't say
anywhere in the book that he even believes anyone can.
The one phrase Mr. Kirsch came up with is, "This is
exciting news for anyone who has a weight problem." Well,
that may be, but it's not the same as saying, "I believe
anybody can do it." He knew they couldn't. And it's not in
the book that he thought they could.
How about this one? Mr. Kirsch said, oh, you can do
it at home. That's a statement of opinion, too.
Mr. Krickbaum is wearing a red tie today. That's
just a big lie; it's not an opinion. And I don't make it an
opinion just by saying it's an opinion.
Anybody can do it at home. Page 220, you have to get
a colonic. And that was described in the book as basically a
high enema, where if something gets stuck up your rectum and
then your colon gets flushed out. That cannot be done at
home.
MR. KIRSCH: Your Honor, I'm going to object. That
misstates the evidence. It misstates the evidence.
THE COURT: Overruled. The jury has been instructed
on this already.
MS. PERRY: Let's move on to this idea of the
disclaimers. Let's first talk about what the disclaimers are.
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Perry - final
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There were three of them that Mr. Kirsch pointed to
you. One, that this is a paid advertisement; two, that it's
not been approved by the FDA; and three, consult a doctor.
That's what the disclaimers say.
What did the disclaimers not say? Everything Kevin
Trudeau says in the following program is a big, fat lie. Now,
maybe if they had said that, we wouldn't have a problem here
today, but that's not what they said.
And keep in mind, this is a man who knows how to
write a disclaimer. If he wants to disclaim something and say
he's about to fib, he knows how to do it, because you can look
at the book, which has a Disclaimer section: "Dates, names,
locations and actual events may have been changed,
embellished, exaggerated or fictionalized for dramatic
effect."
That's a disclaimer. And if that had appeared on the
infomercials we wouldn't be here today. But instead what they
say is, paid advertisement, not been approved by the FDA and
consult a doctor.
And let's talk about the doctor one, because Mr.
Kirsch came up here and he said, well, yes, he may have said
in the infomercial that minors don't need to do it except with
a doctor. But then he put a disclaimer up saying that
everybody needs a doctor.
That was a misrepresentation in and of itself because
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Perry - final
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the statement about only minors needing a doctor's
supervision, that appeared in Infomercial 1. The only
infomercial that talked about having a doctor supervise you
was Infomercial 3.
So how a disclaimer that occurred months later would
have saved him, I don't know. The fact of the matter is,
those disclaimers were useless and they didn't do anything to
stop him from misrepresenting the contents of his book.
And, by the way, his argument is that ITV all did
this anyway, which we'll talk about a little bit later. But
how he takes credit for disclaimers that clearly occurred in
post production that were done by the production company, I
don't know that either.
So let's actually switch to the ITV discussion. Mr.
Kirsch got up and said, well, clearly he wasn't wilful because
it was his company, ITV, and this other company, Shop America,
that put these particular infomercials on the air.
And this is going to get a little complicated because
I'm going to go through some documents that you haven't seen
in detail, but I want to take you through them because they're
important, and I want to take you through them because they
prove the defendant's wilfulness.
So let's start with the timeline in this case. On
September 2, 2004, the defendant signs the court order that's
in evidence. And he signs that not just as him, but also on
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Perry - final
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behalf of Shop America, which was one of the other defendants
in this court case.
And you can see that; that's Government Exhibit 5.
The very last page has the defendant's signature. And he
signs on behalf of not only himself but also as Shop America.
So at that point the defendant is Shop America.
Now, let's fast-forward. June 16th --
MR. KIRSCH: Your Honor, I'm going to object again.
It misstates the evidence. It says manager or director. It
does not say that the defendant was Shop America.
THE COURT: The objection is overruled.
MS. PERRY: June 16th, 2006, again, the defendant
signs a document on behalf of Shop America. And which
document is it this time? This time it's the stock and asset
purchase agreement that we've talked about a little bit but
not gone into detail about.
This time he signs for himself -- you can see this on
the last page of Defendant's Exhibit 17. He signs on behalf
of himself, signs on behalf of a company called TruCom, and he
signs on behalf of Shop America.
And what is this stock and asset purchase agreement
all about? Well, according to this, there's a buyer, and the
buyer is ITV. And ITV is buying the assets of Shop America.
ITV is buying Shop America in exchange for a whopping
$121 million.
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So the defendant signs over Shop America to ITV,
$121 million in exchange. He gets a million dollars up front
and a million dollars every month from ITV, according to the
terms of this particular agreement.
MR. KIRSCH: Objection again. That misstates the
evidence. Your Honor, there's a stip --
MR. KIRSCH: It misstates the stipulation.
MS. PERRY: Now, six months after the defendant signs
over Shop America to ITV, what happens? ITV and Shop America
start broadcasting the weight loss care infomercials. And
what does the defendant say? Oh, it wasn't me, it was Shop
America. It wasn't me, it was ITV.
Was does this mean? This means the defendant was
running a shell game, shell game of companies trying to make
it look like he was not responsible for their actions in
exchange for a million dollars a month.
Now, apart from just the timing of all this, the fact
that this deal preceded the infomercials by just six months,
how else do you know that he knew he was about to do something
wrong?
You'll see in Defendant's Exhibit 17 a promissory
note. That promissory note comes at the end of the document.
And at the end of the document it basically says what happens
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Perry - final
665
if there's a default, what happens if ITV doesn't keep up with
its payment obligations?
And what it says is, the defendant has the right to
take back the assets, the deal can be cancelled. If ITV
doesn't meet its payment obligations, Shop America can revert
back to him.
Now, you know that they didn't meet their payment
obligations because there was a stipulation on this point. It
said at no point did ITV meet its payment obligations. But
the defendant didn't take Shop America back, and the reason he
didn't take Shop America back or cut off dealings with ITV is
because of this shell game. He wanted to make it look like he
wasn't responsible for what was happening.
He wanted to maintain the argument, it wasn't me, it
was ITV, it was Shop America. That proves wilfulness. He
knew he was about to do something wrong, and so he set up this
fancy corporate structure to try to make it look like it
wasn't him.
Now, why does none of this matter? Why was he too
clever by half when he was setting up this complicated
business structure? The reason is, the court order itself
prevents him from working either directly or through others to
violate the court order.
Page 7 of the court order itself, the page right
before the misrepresentation section, it says that the
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Perry - final
666
defendant is not allowed to directly violate the court order
nor is he allowed to work with other companies, partnerships,
employees. Basically what that says is he doesn't get to step
up here and blame ITV and make it seem like he's not
responsible when it was him who was doing this.
And you know that he was working through ITV because
you saw him on that screen holding up the book and saying,
call ITV, call the number here, call them and buy my book.
The defendant clearly knew that he was creating an
infomercial. He knew that he was selling his book on
television, and he is responsible for that court order. He
signed it, he was legally required to follow it, either
directly or through others, and then he wilfully violated it.
And now he says, oh, well, ITV didn't tell me I was
doing something wrong. Well, of course they didn't. They
were his co-conspirators, not his counselor. It wasn't their
job to tell him he was doing something wrong. The whole point
of setting it up so that ITV was in charge of things was to
make it look like he wasn't doing it in the first place.
That's why he set it up, and that ultimately it doesn't
matter, because whether he was working directly or through
ITV, he's still bound by the court order.
So why didn't he follow it? Well, you heard a number
of stipulations about how the money was going to flow. And
money is important. And let me read you just a few portions
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Perry - final
667
of the book.
These are the defendant's own words. I'm going to
start with Page 69:
"When you see advertisements on television, know that the
most sophisticated, persuasive techniques are being used to
motivate you to purchase the product. Deceptions, lies, and
false and misleading advertising are at an all-time high.
Remember, it's always all about money."
From Page 141:
"Celebrities, doctors and everyone who endorses products
does so for three reasons: Money, money and money."
So let's talk about the money in this particular
case. The stipulation that was read to you during Mr.
Kirsch's cross-examination said that the defendant anticipated
making money off the sales of the Weight Loss Cure book based
upon that stock and asset purchase agreement. And another
stipulation that was read to you said that the defendant was
going to receive 65 percent of the royalties from all of the
retail sales. So whether the book is sold via retail avenues
or on the infomercials, all of the money was flowing back to
him. And the more books that were sold, the more money he was
making.
Now, Mr. Kirsch made a big deal about the refund
policy, and so let's talk about that.
Yes, there was one. No, it's probably not the kind
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Perry - final
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that you're used to seeing in the products that you've bought
on line. You have to get ahold of a person, you have to get a
return authorization number, then you have to pay the shipping
back. And the point isn't that the defendant gets to keep the
shipping and handling money; it's that the more steps you put
in the way of people returning products, the less likely they
are to do it.
I remember when I was a kid I saw on the back of all
these magazines ads for sea monkeys. You were supposed to be
able to breed them and teach them to do tricks, and they were
dressed up in cute little costumes.
And so, eventually I bought the sea monkeys and what
came in the mail instead was brine shrimp. They are these
tiny little things that just sit in a pool of water. You
cannot teach them how to do tricks, you cannot actually dress
them up in costume. You can do pretty much absolutely nothing
with them.
Now, did I get on the phone and return my sea
monkeys? No. I waited the three days just for them to die
and then I flushed them. And that's what most people do with
products they get that they don't really like, right?
Think about this: When was the last time you saw a
terrible movie and you demanded your money back? When was the
last time you bought a really bad book and you returned it
after you read it?
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Charge
669
People don't do that, at least not all the time, not
all the people. And the defendant, an experienced salesman,
he knows that. And the more hurdles you put up to people
returning the products, the less likely it is to do that.
Con men make money running the con. And what you
have seen over the course of this trial is a lot of smoke and
mirrors from the defense trying to make this case seem more
difficult than it actually is.
If for a minute you are persuaded by anything that
Mr. Kirsch said, just go back, take a step back, watch the
infomercials and then flip through the book. One of those
things is not like the other, ladies and gentlemen. He
misrepresented the contents of his book and he did it
wilfully.
The defendant is guilty of contempt. We ask that you
find him guilty as he has been charged.
Thank you.
THE COURT: Members of the jury, I will now instruct
you on the law that you must follow in deciding this case.
Each of you will have a copy of these instructions to
use in the jury room. You must follow all of my instructions
about the law even if you disagree with them. This includes
the instructions I gave you before the trial, any instructions
I gave you during the trial and the instructions I am now
giving you.
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670
As jurors you have two duties. Your first duty is to
decide the facts from the evidence that you saw and heard in
court. This is your job, not my job or anyone else's job.
Your second duty is to take the law as I give it to
you, apply it to the facts, and decide if the government has
proved the defendant guilty beyond a reasonable doubt.
You must perform these duties fairly and impartially.
Do not let sympathy, prejudice, fear or public opinion
influence you. In addition, do not let any person's race,
color, religion, national ancestry or gender influence you.
You must not take anything I said or did during the
trial as indicating what I think of the evidence or what I
think your verdict should be.
The defendant has been charged with criminal
contempt. The charge alleges that the defendant wilfully
violated the district court's order of September 2, 2004, in
case number 03 CV 3904, by misrepresenting the content of
defendant's book entitled The Weight Loss Cure "They" Don't
Want You to Know About in infomercials on or about
December 23, 2006, January 8, 2007, and July 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.
The defendant is presumed innocent of the charge.
This presumption continues throughout the case, including
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671
during your deliberations. It is not overcome unless from all
the evidence in the case you are convinced beyond a reasonable
doubt that the defendant is guilty as charged.
The government has the burden of proving the
defendant's guilt beyond a reasonable doubt. This burden of
proof stays with the government throughout the case.
The defendant is never required to prove his
innocence. He is not required to produce any evidence at all.
You must make your decision based only on the
evidence that you saw and heard here in court. Do not
consider anything you may have seen or heard outside of court,
including anything from the newspaper, television, radio, the
internet, or any other source. You must also continue to
follow the instructions I gave you at the start of the trial,
that you may not communicate with anyone other than your
fellow jurors until after you have returned your verdict.
The evidence includes only what the witnesses said
when they were testifying under oath, the exhibits that I
allowed into evidence and the stipulations that the lawyers
agreed to. A stipulation is an agreement that certain facts
are true or that a witness would have given certain testimony.
Nothing else is evidence. The lawyers' statements
and arguments are not evidence. If what a lawyer said is
different from the evidence as you remember it, the evidence
is what counts. The lawyers' questions and objections
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Charge
672
likewise are not evidence.
A lawyer has a duty to object if the lawyer thinks a
question is improper. If I sustained the objections to
questions the lawyers asked, you must not speculate on what
the answers might have been.
If, during the trial, I struck testimony or exhibits
from the record, or told you to disregard something, you must
not consider it.
Give the evidence whatever weight you believe it
deserves. Use your common sense in weighing the evidence and
consider the evidence in light of your own every day
experience.
People sometimes look at one fact and conclude from
it that another fact exists. This is called an inference.
You are allowed to make reasonable inferences so long as they
are based on the evidence.
You may have heard the terms direct evidence and
circumstantial evidence. Direct evidence is evidence that
directly proves a fact. Circumstantial evidence is evidence
that indirectly proves a fact.
You are to consider both direct and circumstantial
evidence. The law does not say that one is better than the
other. It is up to you to decide how much weight to give to
any evidence, whether direct or circumstantial.
Do not make any decisions simply by counting the
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Charge
673
number of witnesses who testified about a certain point.
You may find the testimony of one witness or a few
witnesses more persuasive than the testimony of a larger
number. You need not accept the testimony of the larger
number of witnesses.
What is important is how truthful and accurate the
witnesses were and how much weight you think their testimony
deserves.
A defendant has an absolute right not to testify or
present witnesses. You may not consider in any way the fact
that a defendant did not testify or present witnesses. You
should not even discuss it in your deliberations.
Part of your job as jurors is to decide how
believable each witness was and how much weight to give each
witness' testimony. You may accept all of what a witness says
or part of it or none of it.
Some factors you may consider include: The
intelligence of the witness; the witness' ability and
opportunity to see, hear or know the things the witness
testified about; the witness' memory; the witness' demeanor;
whether the witness had any bias, prejudice or other reason to
lie or slant the testimony; the truthfulness and accuracy of
the witness' testimony in light of the other evidence
presented; and inconsistent statements or conduct by the
witness.
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Charge
674
Certain charts were admitted in evidence. You may
use those charts as evidence.
You have seen video recordings. This is proper
evidence that you should consider together with and in the
same way you consider the other evidence.
I am providing you with the recordings and a device
with instructions on its use. It is up to you to decide
whether to view and listen to any of the recordings during
your deliberations. You may, if you wish, rely on your
recollections of what you saw and heard during the trial.
If you have taken notes during the trial, you may use
them during deliberations to help you remember what happened
during the trial. You should use your notes only as aids to
your memory. The notes are not evidence. All of you should
rely on your independent recollection of the evidence, and you
should not be unduly influenced by the notes of other jurors.
Notes are not entitled to any more weight than the memory or
impressions of each juror.
You should not speculate why any other person or
company whose name you may have heard during the trial is not
currently on trial before you.
The defendant is charged with criminal contempt. For
you to find the defendant guilty of this charge, the
government must prove each of the following elements beyond a
reasonable doubt:
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Charge
675
One, the Court entered a reasonably specific order;
Two, the defendant violated the order by misrepresenting
the content of the book The Weight Loss Cure "They" Don't Want
You to Know About in an infomercial;
Three, the defendant's violation of the court order was
wilful.
If you find from your consideration of all the
evidence that the government has proved each of these elements
beyond a reasonable doubt, then you should find the defendant
guilty.
If, on the other hand, you find from your
consideration of all the evidence that the government has
failed to prove any one of these elements beyond a reasonable
doubt, then you should find the defendant not guilty.
The government contends that the defendant
misrepresented the content of the Weight Loss Cure book by
making one or more of the following statements or omissions
from an infomercial:
Statements that indicate that you can finish or be done with
the weight loss protocol and/or statements that indicate that
the protocol is a cure that corrects the cause of obesity; or
Statements that indicate that people can do the weight loss
protocol at home, and you don't have to go to a clinic to do
it; or
Statements that indicate that the weight loss protocol is
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Charge
676
simple and/or statements that indicate that the weight loss
protocol involves only a few other little things; or
Statements that indicate that no exercise is required by the
weight loss protocol; or
Statements that indicate that after finishing the protocol,
there are no restrictions on what you can eat, and that you'll
never have to diet ever again to avoid gaining weight; or
Statements that indicate that only minors should do the
weight loss protocol under the supervision of a licensed
health care practitioner; or
Statements that indicate that while on the protocol, people
will have no hunger and/or statements that indicate that the
protocol includes no food deprivation; or
Statements that indicate that anyone can cure food cravings
in two minutes using the Callahan Technique; or
Statements that indicate that the weight loss protocol is
not a diet and/or the protocol does not involve portion
control, calorie counting, watching your carbs, watching your
fat or crazy potions, powders or pills; or
Statements that indicate that anybody can do the weight loss
protocol; or
Failure to disclose the specifics regarding the use and
administration of HCG during the weight loss protocol and/or
statements that indicate that HCG is a substance that you can
get anywhere.
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Charge
677
The government is not required to prove beyond a
reasonable doubt that every one of these statements or
omissions misrepresented the content of the book, but it is
required to prove beyond a reasonable doubt that at least one
of them misrepresented the content of the book. To find that
the government has proven this, you must unanimously -- you
must agree unanimously as to which one of the statements or
omissions misrepresented the content of the book, as well as
all other elements of the crime charged.
A violation of a court order is wilful if it is a
volitional act done by one who knows or should reasonably be
aware that his conduct is wrongful. A person should
reasonably be aware that his conduct is wrongful if he is
conscious of a substantial and unjustifiable risk that the
prohibited event (here, violation of the September 2, 2004,
court order) will come to pass, and he disregards that risk.
In deciding whether the defendant acted wilfully, you
may consider all of the evidence, including what the defendant
did or said.
If the defendant acted in good faith, then he lacked
the wilfulness required to prove the offense of contempt with
which he is charged. The defendant acted in good faith if, at
the time, he honestly believed that his statements in the
infomercials did not violate the court order.
The defendant does not have to prove his good faith.
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Charge
678
Rather, the government must prove beyond a reasonable doubt
that the defendant acted wilfully, as charged.
Whether the content of the book The Weight Loss Cure
"They" Don't Want You to Know About is truthful is not an
issue for you to decide in this case. Likewise, whether the
weight loss protocol described in the book The Weight Loss
Cure "They" Don't Want You to Know About is effective for
weight loss is not an issue for you to decide. These issues
are not relevant to this case.
The charge alleges that the crime happened on or
about December 23, 2006, January 8, 2007, and July 6, 2007.
The government must prove that the crime happened reasonably
close to those dates. The government is not required to prove
that the crime happened on those exact dates.
In deciding your verdict, you should not consider the
possible punishment for the defendant. If you decide that the
government has proved the defendant guilty beyond a reasonable
doubt, then it will be my job to decide on the appropriate
punishment.
Once you are all in the jury room, the first thing
you should do is choose a foreperson. That person will see to
it that your discussions are carried on in an organized way
and that everyone has a fair chance to be heard. You may
discuss the case only when all jurors are present.
Once you start deliberating, do not communicate about
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Charge
679
the case or your deliberations with anyone except other
members of the jury. You may not communicate with others
about the case or your deliberations by any means. This
includes oral or written communication, as well as any
electronic method of communication, such as by telephone, cell
phone, smart phone, I-Phone, Blackberry, computer,
text-messaging and instant messaging, the internet chatrooms,
blogs, websites, or services like Facebook, My Space,
Linked-In, YouTube, Twitter, or any other method of
communication.
If you need to communicate with me while you are
deliberating, send a note through the Court Security Officer.
The note should be signed by the foreperson or by one or more
members of the jury. To have a complete record of this trial,
it is important that you do not communicate with me except by
a written note.
I may have to talk to the lawyers about your message,
so it may take me some time to get back to you. You may
continue your deliberations while you wait for my answer.
Please be advised that I cannot provide you with a transcript
of any of the trial testimony.
If you send me a message, do not include the
breakdown of your votes. In other words, do not tell me that
you are split 6-6, or 8-4, or whatever your vote happens to
be.
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Charge
680
A verdict form has been prepared for you. You will
take this form with you to the jury room.
When you have reached unanimous agreement, your
foreperson will fill in and sign and date the verdict form and
each of you will sign it.
Advise the Court Security Officer once you have
reached a verdict. When you come back to the courtroom, I
will read the verdict aloud.
The verdict form, ladies and gentlemen, is very
simple. It simply states:
With respect to the charges against defendant, Kevin
Trudeau, we, the jury, find defendant, Kevin Trudeau, and then
you have a choice. You check either guilty or not guilty, so
say we all, and below that is a place for the signature of
each of you.
The verdict must represent the considered judgment of
each juror. Your verdict, whether it's guilty or not guilty,
must be unanimous.
You should make every reasonable effort to reach a
verdict. In doing so, you should consult with each other,
express your own views and listen to your fellow jurors'
opinions. Discuss your differences with an open mind. Do not
hesitate to re-examine your own view and change your opinion
if you come to believe it is wrong. But you should not
surrender your honest beliefs about the weight or effect of
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Charge
681
evidence just because of the opinions of your fellow jurors or
just so that there can be a unanimous verdict.
The twelve of you should give fair and equal
consideration to all the evidence. You should deliberate with
the goal of reaching an agreement that is consistent with the
individual judgment of each juror.
You are impartial judges of the facts. Your sole
interest is to determine whether the government has proved its
case beyond a reasonable doubt.
I'm going to ask the two alternate jurors now to
please step out.
Please go back to the jury room if you've left
anything there and get your belongings.
(Brief pause.)
THE COURT: I'm going to ask you folks to take a seat
in the first bench on the left, please.
Swear the Court Security Officer.
(Court Security Officer sworn.)
THE COURT: CSO, please take the jury back to the
jury room.
(Jury retired to deliberate at 2:00 o'clock p.m.)
THE COURT: And I'm going to ask the two alternates
to step up to the podium here. Just pretend you're lawyers.
But you don't have to if you don't want to. I want to give
you some instructions.
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682
First of all, you're still jurors in this case, which
means you cannot discuss this case with anyone or allow anyone
to discuss it with you. That includes among yourselves.
Second, you can still not read, listen to or view any
news items or any other reports or information about this
case.
Third, your function from now on is this: If during
the course of deliberations any of the other jurors should
become incapacitated for any reason, one of you will be called
to take his or her place, which means that you will not be
able to have discussed this case with anyone. Please
understand that.
Now, it's 2:00 o'clock this afternoon, so I'm going
to ask you to wait around in the courthouse. You can go down
to the jury room, which is what I suggest, to wait, you can go
to the cafeteria. At 4:30, if we have not received word from
the jury as to having reached a verdict, we will reconvene
court and I expect you to be here at that time. I will give
you instructions on what to do after that.
Do you have any questions for us?
(No response.)
THE COURT: You both have your cell phones with you
and we have your cell phone numbers, correct?
ALTERNATE JUROR: Yes.
THE COURT: Other than that, you are free to roam.
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683
(Alternate jurors left the courtroom.)
THE COURT: Exhibits?
MR. KRICKBAUM: Judge, we discussed the exhibits with
the defense and we agreed on what's going back.
THE COURT: Okay. Do you have it with you?
MR. KRICKBAUM: Yes. It's probably a couple of
handfuls, Judge, so --
THE COURT: All right. We'll wait until Ms. Gainer
gets back and she can take it on back to the jury room, or at
least to the CSO.
Okay. We're going to need phone numbers and
locations for the attorneys. So if you could write your phone
number down and where we can expect to find you between now
and 4:30.
(Brief pause.)
THE COURT: All right. Unless we have either
questions or a verdict, we will reconvene court at 4:30. I
expect you to be here at that time.
If we have either a question or a verdict, we will
notify you on the phones you've given us and please make your
best time getting here.
Anything either side wants to bring up at this point?
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684
THE COURT: Okay. We'll recess until 4:30.
THE CLERK: Court is in recess.
(End of excerpt.)
* * * * *

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