Case: 1:10-cr-00886 Document #: 138 Filed: 11/06/13 Page 1 of 6 PageID #:1123

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UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION UNITED STATES OF AMERICA, Plaintiff, v. KEVIN TRUDEAU, Defendant. ____________________________________ ) ) ) ) ) ) )

Case No. 10-CR-00886 Honorable Ronald A. Guzman

DEFENDANT KEVIN TRUDEAUS OBJECTION TO THE GOVERNMENTS PROPOSED SUPPLEMENTAL JURY INSTRUCTION NO. 1 AND PROPOSED INSTRUCTION NO. 14 On November 3, 2013, the government filed revised proposed jury instructions, including its proposed Supplemental Jury Instruction No. 1 and Government proposed Instruction No. 14. (Docket No. 129.) For the reasons set forth below, Trudeau objects to the Court giving both of these instructions to the jury. I. Trudeaus Objection to the Governments Proposed Supplemental Jury Instruction No. 1 The governments proposed Supplemental Jury Instruction No. 1 states: When determining whether the content of a book has been misrepresented, you may look to individual portions of the book as well as the books essential meaning as a whole. (Docket No. 129 at 29.) Defendant Kevin Trudeau respectfully requests that the Court reject this jury instruction, and not include this instruction in the final instructions read to the jury at trial. The issue for the jurors to determine in this criminal case is whether or not the defendant, Kevin Trudeau, willfully violated the September 2, 2004 Order entered in the civil case before Judge Gettleman (Case No. 03-3904) that is the subject of this case (the Order). In order for the jurors to make this determination they should rely on the plain language that existed in the Order at the time it was entered into between Trudeau and the FTC. The Order provides only 1

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that Trudeau may not misrepresent the content of [his] book[s] in infomercials. (Case No. 03cv-3904, Docket No. 56 at 9.) It does not define what the term content means in the context of the Order, though several other terms are defined. (Id. at 5-7.) As the Court has pointed out, the Seventh Circuit has spoken on its interpretation of the meaning of the Order in connection with the civil case before Judge Gettleman. Trudeau does not dispute that interpretation or that the Seventh Circuit made it. Trudeau contends, however, that this is not a reason to supplement the Order with terms that do not appear in the Order that will be introduced into evidence in this case and did not exist within the four corners of the Order at the time it was agreed to between Trudeau and the FTC and approved by the Court. In the civil case, the Court was the fact-finder. This is a completely different case (civil vs. criminal), with a different burden of proof (preponderance of the evidence vs. beyond a reasonable doubt) and a different fact-finder (judge vs. jury). The jury should be allowed to determine the meaning of the Order, including the term content, for themselves. II. Trudeaus Objection to the Governments Proposed Instruction No. 14 During the pre-trial conference held on October 30, 2013, the Court handed to counsel, in open court, a draft of proposed Instruction No. 14. The Court indicated that its list of alleged misrepresentations in Instruction No. 14 was intended to track the thirteen statements identified in the governments bill of particulars. (Docket No. 121.) The Court further indicated that it did not intend to change the content of the misrepresentations listed in the governments bill of particulars. See Oct. 30, 2013 Tr. at 288-89 (Okay. Then comes the list of statements. These are, again, with a large possibility of typos, just dictated straight from the governments list which was provided to the defendant in order to apprise the defendant with more specificity of what it is that he was alleged to have violated the law. I did not intend and I dont think I did

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change any content in that listing.) Using the Courts instruction as a model, the parties then negotiated and agreed to a revised instruction in open court.1 The instruction the parties agreed to largely tracks the thirteen statements identified in the governments bill of particulars and in the Courts proposed Instruction No. 14. Despite agreeing to an instruction in open court, the government filed a revised Instruction No. 14 which rewrites the governments bill of particulars into twenty separate statements including: Statements that indicate that the weight loss protocol is simple. Statements that indicate that the weight loss protocol involves only a few other little things. Statements that indicate that the weight loss protocol is not a diet. Statements that indicate that the weight loss protocol does not involve portion control. Statements that indicate that the weight loss protocol does not involve calorie counting. Statements that indicate that the weight loss protocol does not involve watching your carbs. Statements that indicate that the weight loss protocol does not involve crazy potions, powders, or pills. Failure to disclose specifics regarding the use and administration of HCG during the weight loss protocol. Statements that indicate that HCG is a substance that you can get anywhere.

This Court has indicated that it expected the agreements the parties made during the pre-trial conference to stand absent extraordinary circumstances. See Oct. 28, 2013 Tr. at 195-96 (THE COURT: I guess if something unusual happens during the course of the trial that neither side expected, its possible that either side could change its mind about that particular issue. But lets be clear and have it clearly understood that the agreements you make now, absent extraordinary circumstances, are binding.).

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(Docket No. 129 at 16-17.) The government is impermissibly attempting to expand and modify its bill of particulars. A bill of particulars strictly limits the governments allegations and cannot be expanded. U.S. v. Allied Asphalt Paving Co., 451 F. Supp. 804, 812 (N.D. Ill. 1978) (As to a bill of particulars, when it has been furnished, the government is limited to the details it specifies. The function of a bill of particulars is to enable an accused to prepare for trial, prevent surprise, and to this end the Government is strictly limited to proving what it has set forth in it.); U.S. v. Neff, 212 F.2d 297, 309 (3d Cir. 1954) ([H]e who has furnished the bill of particulars under it, must be confined to the particulars he has specified, as closely and effectually as if they constituted essential allegations in a special declaration. Otherwise stated, a bill of particulars strictly limits the prosecution to proof within the area of the bill.). The governments proposed revised instruction is also akin to improperly amending and expanding an indictment. U.S. v. Williams, 798 F.2d 1024, 1033 (7th Cir. 1986) ([T]he trial court cannot amend the indictment at the instruction stage by eliminating or changing an essential or material element of the crime.). Moreover, by listing each of these alleged misrepresentations as separate statements, the government restates the same allegations in slightly different words even though they express the same general meaning. For example, the government says in five statements what it could say in one: the protocol is a not diet. Drafting this instruction as a laundry list of equivalent statements is repetitive, multiplicative, and violates Trudeaus Fifth Amendment rights. See U.S. v.

Kimborough, 69 F. 3d 723, 729 (7th Cir. 1995) (noting that the rule against multiplicity prohibits the Government from charging a single offense in several counts and stems from the 5th Amendment to the Constitution which forbids placing a defendant twice in jeopardy for one offense.).

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Trudeau respectfully requests that the Court reject the governments revised instruction and give the version of Instruction No. 14 which the parties agreed to on October 30, 2013. Specifically with regard to the bullet points identified above, Trudeau respectfully requests that these statements be condensed into four bullet points consistent with what the parties agreed to in open court: Statements that indicate that the weight loss protocol is simple and/or statement that indicate that the weight loss protocol involves only a few other little things. (See Oct. 30, 2013 Tr. at 293.) 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. (See Oct. 30, 2013 Tr. at 299-300.) 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. (See Oct. 30, 2013 Tr. at 300-303.)

(See Exhibit A (setting forth Trudeaus proposed Instruction No. 14).) WHEREFORE, Trudeau respectfully requests that this Court reject the governments proposed Supplemental Jury Instruction No. 1 and modify the Governments proposed Instruction No. 14 as set forth in attachment A.

Dated: November 6, 2013

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

Kimball R. Anderson (kanderson@winston.com) Thomas L. Kirsch II (tkirsch@winston.com) Katherine E. Rohlf (krohlf@winston.com) WINSTON & STRAWN LLP 35 West Wacker Drive Chicago, Illinois 60601 312-558-5600 5

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CERTIFICATE OF SERVICE I, Thomas L. Kirsch II, an attorney, hereby certify that on November 6, 2013, I caused to be served true copies of DEFENDANT KEVIN TRUDEAUS OBJECTION TO THE GOVERNMENTS PROPOSED SUPPLEMENTAL JURY INSTRUCTION NO. 1 AND PROPOSED INSTRUCTION NO. 14 and accompanying exhibit by filing such document through the Courts Electronic Case Filing System, which will send notification of such filing to:

Marc Krickbaum April Perry United States Attorneys Office 219 South Dearborn Street Suite 500 Chicago, Illinois 60604

/s/ Thomas L. Kirsch II Thomas L. Kirsch II Attorney for Kevin Trudeau

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Ex A.

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Defendants Proposed Instruction 14 The defendant is charged with criminal contempt. In order for you to find the defendant guilty of this charge, the government must prove each of the following elements beyond a reasonable doubt: 1) The court entered a reasonably specific order; 2) The defendant violated the court order by misrepresenting the content of the book The Weight Loss Cure They Dont Want You to Know About by making one or more of the following types of misrepresentations in an infomercial: Statements that indicate that that you can finish or be done with the weight loss protocol. Statements that indicate that the protocol is a cure that corrects the cause of obesity. Statements that indicate that people can do the weight loss protocol at home, and you dont have to go to a clinic to do it. Statements that indicate that the weight loss protocol is inexpensive. Statements that indicate that the weight loss protocol is simple and/or statements that indicate that the weight loss protocol involves only a few other little things. Statements that indicate that no exercise is required by the weight loss protocol. Statements that indicate that after finishing the protocol, there are no restrictions on what you can eat, and that youll never have to diet ever again to avoid gaining weight. Statements that indicate that only minors should do the weight loss protocol under the supervision of a licensed health care practitioner. Statements that indicate that while on the protocol, people will have no hunger. Statements that indicate that the protocol includes no food deprivation. Statements that indicate that anyone can cure food cravings in two minutes using the Callahan technique. 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. Statements that indicate that anybody can do the weight loss protocol.

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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.

3) The defendants violation was willful. 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 you 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.

Case: 1:10-cr-00886 Document #: 139 Filed: 11/07/13 Page 1 of 4 PageID #:1132

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UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

UNITED STATES OF AMERICA, Plaintiff, v. KEVIN TRUDEAU, Defendant. ____________________________________

) ) ) ) ) ) )

Case No. 10-CR-00886 Honorable Ronald A. Guzman

UNOPPOSED REVISED PROPOSED JURY INSTRUCTION NO. 14 Pursuant to discussions in open court on November 7, 2013, Defendant Kevin Trudeau provides the Court with the following proposed Instruction No. 14. Counsel for the government has indicated that they do not oppose this instruction.

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 in an infomercial: Statements that indicate that 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 dont have to go to a clinic to do it; or Statements that indicate that the weight loss protocol is inexpensive; or Statements that indicate that the weight loss protocol is 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

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Statements that indicate that after finishing the protocol, there are no restrictions on what you can eat, and that youll 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.

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 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. For example, if some of you were to find that the government has proved beyond a reasonable doubt that the defendant made the misrepresentation that the weight loss protocol is inexpensive, and the rest of you were to find that the government has proved beyond a reasonable doubt that the defendant made the misrepresentation that the weight loss protocol is simple, then there would be no unanimous agreement on which misrepresentation the government has proved. On the other hand, if all of you were to find that the government has proved beyond a 2

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reasonable doubt that the defendant made the misrepresentation that the weight loss protocol is inexpensive, then there would be unanimous agreement on which misrepresentation the government proved.

Dated: November 7, 2013

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

Kimball R. Anderson (kanderson@winston.com) Thomas L. Kirsch II (tkirsch@winston.com) Katherine E. Rohlf (krohlf@winston.com) WINSTON & STRAWN LLP 35 West Wacker Drive Chicago, Illinois 60601 312-558-5600

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CERTIFICATE OF SERVICE I, Thomas L. Kirsch II, an attorney, hereby certify that on November 7, 2013, I caused to

be served true copies of UNOPPOSED REVISED PROPOSED JURY INSTRUCTION NO. 14 by filing such document through the Courts Electronic Case Filing System, which will send notification of such filing to:

Marc Krickbaum April Perry United States Attorneys Office 219 South Dearborn Street Suite 500 Chicago, Illinois 60604 /s/ Thomas L. Kirsch II Thomas L. Kirsch II Attorney for Kevin Trudeau