FTC v. Trudeau – Are Emails Within a Judge’s “Presence”?

The recent 7th Circuit opinion in FTC v. Trudeau, No. 10-1383, slip op. (7th Cir. May 20, 2010), raised an interesting cyberlaw issue as a minor point within the larger issue of criminal contempt of court: Just because the Judge receives an email, does that mean the email, as well as the conduct in inciting the email to be sent, is within the Judge’s presence? The 7th Circuit ruled no, because the entirety of the conduct was not in his presence.

As background, in Federal court Judges can summarily hold people to be in criminal contempt of court if their conduct causes an obstruction of justice. If all of the facts required to make this determination are known to the Judge because they occur in his presence, then the Judge can summarily hold a person in contempt. This summary procedure is a great power, and is needed to allow Judges to control what occurs in their courtroom. But, as the 7th Circuit points out, it is a limited power in order to prevent abuse. If additional facts are needed, a more formal evidentiary proceeding is required under 18 U.S.C. §401 and Fed. R. Crim. P. §42(a). This evidentiary proceeding can also encompass conduct that is outside the Judge’s immediate presence but “so near thereto” as to still obstruct justice.

To summarize the basic facts, Defendant Trudeau was before Judge Holderman here in the Northern District of Illinois in an underlying case for civil contempt of court. Trudeau went on his radio show and urged his followers/supporters/listeners to send emails directly to Judge Holderman’s private email address in support of his case. Trudeau also posted an audio excerpt of this show to his website, then sent an email blast to his mailing list urging people to send emails to the Judge. Judge Holderman was concerned as a matter of courtroom security when he suddenly began getting hundreds of emails on his private email address. He was eventually able to determine that Trudeau was to blame, but it took a while for him and his staff to do so. To cut a long story short, he summarily found Trudeau in contempt of court for this behavior because the emails occurred in his presence, then one week later imposed a 30-day sentence.

The 7th Circuit reversed this finding, holding that this procedure was not appropriate because all of the facts did not occur in the Judge’s presence. Instead of the summary procedure, a more formal hearing should have been held. Judge Holderman was able to learn what he needed to know, but the entirety of the conduct did not occur in his presence. It was not enough that the effect of the conduct (the email) was felt in his presence, he and his staff had to take additional steps to confirm it was Trudeau to blame. The radio show itself was not in his presence. Neither was the posting to Trudeau’s website or the mailing to the list.

The case was remanded for further proceedings, so there is still an opportunity for a formal hearing to be held about this conduct, at Judge Holderman’s discretion.

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