SYKES, Circuit Judge.
Kevin Trudeau spent his career hawking miracle cures and self-improvement systems of dubious efficacy. When the Federal Trade Commission sued him for violating consumer-protection laws, Trudeau agreed to a consent decree in which he promised not to misrepresent the content of his books in TV infomercials. A few years later, Trudeau published
The Weight Loss Cure “They” Don’t Want You to Know About
and promoted it in three infomercials. The ads said the weight-loss protocol was “simple” and “inexpensive,” could be completed at home, and did not require any food restrictions or exercise. The book, on the other hand, described an arduous regimen mandating prescription hormone injections and severe dietary and lifestyle constraints.
The district court imposed a civil contempt sanction and then issued an order to show cause why Trudeau should not be held in criminal contempt and face a penalty of up to six months’ imprisonment. At Trudeau’s request the case was transferred to a different judge. The new judge issued an amended show-cause order that removed the six-month penalty cap. Trudeau was convicted and sentenced to ten years in prison.
On appeal Trudeau leaves no stone unturned. His primary argument concerns an alleged violation of the Speedy Trial Act.
See
18 U.S.C. § 3161
et seq.
More than 70 nonexcludable days elapsed between the date the government agreed to prosecute the first show-cause order and the commencement of trial under the second show-cause order. Trudeau moved to dismiss for violation of the Act. The district judge denied this motion. He was right to do so. The Act applies only to crimes punishable by more than six months’ imprisonment. Because the first show-cause order capped the potential penalty at six months, the Act did not apply. The second show-cause order removed the cap, triggering the Act’s 70-day clock, but Trudeau’s trial began within the mandatory timeframe counting from that date. There was no Speedy Trial Act violation.
Trudeau raises an array of other issues as well: He challenges the jury instruction on “willfulness,” the sufficiency of the evidence, two evidentiary rulings, and the reasonableness of his sentence. These arguments, too, are meritless. We affirm the' contempt conviction and sentence.
I. Background
Trudeau’s bag of tricks contains something to relieve almost any ailment or burden. His infomercials have peddled products like “Biotape” (to cure severe pain); “Coral Calcium Supreme” (to cure cancer); “Howard Berg’s Mega Read” (to increase reading speed tenfold); and “Kevin Trudeau’s Mega Memory System” (to unlock photographic memory). Because Trudeau’s pitches are factually indefensible, the FTC has repeatedly pursued him for violating consumer-protection laws. To settle one of these suits, Trudeau agreed to the entry of a consent decree in which he promised not to market products without the FTC’s approval. He soon decided he wanted more leeway to write books, however, and in September 2004 negotiated a modified consent order that permitted him to star in infomercials for his books provided that “the infomercial for any such book ... must not misrepresent the content of the book.” Soon after, Trudeau released a book about “natural cures” and produced a promotional infomercial for it. Although the consent order did not require him to do so, Trudeau sent the transcript to the FTC, which indicated its approval. This ad aired without objection.
In 2007 Trudeau published another book,
The Weight Loss Cure “They” Don’t Want You to Know About,
which described a complex regimen designed to reduce hunger by “resetting” the hypothalamus. We detailed the book’s weight-loss system in
FTC v. Trudeau (Trudeau I)
579 F.3d 754, 758-59 (7th Cir.2009), so we provide only a summary here. The regimen consists of four phases (two of which are “strongly recommended” but not obligatory), each with a strict list of dietary and lifestyle dos and don’ts. For example, most or all of the phases — including phase 4, which lasts a lifetime — involve abstaining from artificial sweeteners, chain restaurants, prescription and over-the-counter medication, food cooked in microwaves, air conditioning, and fluorescent lighting. Program participants are also instructed to walk an hour a day; eat only organic food; do liver, parasite, heavy-metal, and colon cleanses; and receive colonics, which are enema-like procedures performed by specialists. Phase 2, which is mandatory and lasts between 21 and 45 days, is particularly arduous and requires a 500-calo-rie-per-day diet and daily injections of human chorionic gonadotropin, a hormone only available by prescription and not indicated for weight loss.
Trudeau promoted
The Weight Loss Cure
in three different 30-minute infomercials staged as scripted conversations between an interviewer and himself. But the protocol Trudeau talked about in the infomercials bore little resemblance to the one described in his book. In the ads he said that the weight-loss protocol was “very inexpensive,” could be done at home, and was “the easiest [weight-loss] method known on planet Earth.” He also represented that once the protocol was complete, dieters could eat “everything they want, any time they want.” The weight-loss program described in the infomercials sounded too good to be true, and it was. Trudeau never mentioned the dietary or lifestyle restrictions, injections, cleanses, or colonics mandated in the book.
The FTC took Trudeau back to court for violating the 2004 consent order. The district court (Judge Gettleman presiding) found that the infomercials misrepresented the content of
The Weight Loss Cure,
despite Trudeau’s jesuitical attempts to harmonize them. Judge Gettleman held Trudeau in civil contempt and entered a $37.6 million judgment against him, an amount equal to the gross revenue from books sold through the infomercials. We upheld the contempt finding in
Trudeau I, id.
at 768, and the monetary sanction in
FTC v. Trudeau (Trudeau II),
662 F.3d 947, 949-50 (7th Cir.2011).
After imposing the civil sanction, Judge Gettleman issued an order to show cause why Trudeau should not also be held in criminal contempt for the same conduct. Under this show-cause order, dated April 16, 2010, Trudeau faced imprisonment of not more than six months. On April 29, 2010, the U.S. Attorney’s Office agreed to prosecute the case. At that time the prosecutor told the judge: “I think because this is a criminal proceeding, the Speedy Trial Act would ... apply.” She sought and received an exclusion of time that same day, tolling the Act’s 70-day clock. In the weeks that followed, the judge granted thr.ee subsequent requests for exclusion of time.
Trudeau eventually asked that the criminal proceedings be reassigned to a new judge. Judge Gettleman exercised his prerogative as a senior judge to have the case transferred. On October 19, 2010, it was reassigned to Judge Guzmán. Unfortunately, neither the government nor Trudeau received notice of the reassignment (or the new criminal case number), and the case sat idle until the parties discovered
the oversight. A status hearing was finally held on April 7, 2011. By that time more than 150 nonexcludable days had elapsed since the government agreed to prosecute Judge Gettleman’s show-cause order.
At the April 7 hearing (and in subsequent briefing), Trudeau sought dismissal for violation of the Speedy Trial Act. The government responded that, properly understood, Judge Gettleman’s show-cause order was outside the scope of the Act. The Act applies to “any case involving a defendant charged with an offense,” 18 U.S.C. § 3161(a), and “offense” is defined as “any Federal criminal offense ...
other than
a Class B or C misdemeanor or an infraction,”
id.
§ 3172(2) (emphasis added). Federal crimes are generally classified based on their maximum penalty, and Class B misdemeanors are punishable by not more than six months’ imprisonment.
Id.
§ 3559(a)(7). Because Judge Gettle-man’s show-cause order capped Trudeau’s sentence at six months, Judge Guzmán determined that it was analogous to a Class B misdemeanor and therefore the Act did not apply.
At the same April 7 hearing, the government asked Judge Guzmán to withdraw the initial show-cause order and issue an amended one without the six-month cap. The prosecutor argued that an uncapped order would be more appropriate given the serious nature of the contempt and Trudeau’s history of disobeying court orders. On December 7, 2011, Judge Guzmán agreed to issue a new show-cause order and told the parties that the original order would be dismissed when the new one was entered. An amended, uncapped show-cause order issued the next day.
The contempt charge was tried to a jury over six days beginning on November 5, 2013. The parties agree that if the speedy-trial clock started when Judge Guzmán entered the new, uncapped show-cause order, the trial commenced within the time period required by the Act. The jury convicted Trudeau of contempt, and Judge Guzmán imposed a ten-year prison sentence, well below the guidelines range of 235 to 293 months.
II. Discussion
A. The Speedy Trial Act
The Speedy Trial Act requires most criminal trials to begin within 70 days of (1) “the filing date (and making public) of the information or indictment,” or (2) “the date the defendant has appeared before a judicial officer of the court in which such charge is pending, whichever date last occurs.” 18 U.S.C. § 3161(c)(1). Time can be excluded from the 70-day limit for a variety of reasons.
See id.
§ 3161(h). The primary remedy for a violation of the Act is dismissal of the charge, with or without prejudice depending on the court’s evaluation of a set of statutory factors.
See id.
§ 3162(a)(2). We review the district court’s interpretation of the" Act de novo and its factual findings for clear error.
United States v. Loéra,
565 F.3d 406, 411 (7th Cir.2009).
The parties initially disagreed about how many nonexcludable days elapsed in total, but Trudeau now accepts the government’s figures-214 nonexcluded days passed between April 29, 2010, when the government agreed to prosecute Judge Gettle-man’s show-cause order, and December 8, 2011, when Judge Guzmán entered the new, uncapped order. As we’ve noted, Trudeau also agrees that the Act was properly applied if time is counted from the date of the second order until the start of trial in November 2013. But if the speedy-trial clock started running back in April 2010, as Trudeau contends, then the
case should have been dismissed, though not necessarily with prejudice.
1.
Estoppel
Trudeau contends that the government is estopped from arguing that the April 2010 show-cause order wasn’t subject to the Act because the prosecutor initially told Judge Gettleman that it was. Judicial estoppel “prevents a party from prevailing on an argument in an earlier matter and then relying on a contradictory argument to prevail in a subsequent matter.”
Wells v. Coker,
707 F.3d 756, 760 (7th Cir.2013). Estoppel is “an equitable doctrine invoked by a court at its discretion,”
New Hampshire v. Maine,
532 U.S. 742, 750, 121 S.Ct. 1808, 149 L.Ed.2d 968 (2001), so the decision not to apply it is reviewed for abuse of discretion,
see In re Knight-Celotex, LLC,
695 F.3d 714, 721 (7th Cir.2012).
Judge Guzmán was well within his discretion in declining to estop the government. First, the government did not “prevail” over Trudeau when it initially took the position that the Act applied to the first show-cause order. Trudeau held the identical view, so it makes just as much sense to say that Trudeau prevailed over the government. Second, Trudeau did not suffer any “unfair detriment” as a result of the government’s changed view.
New Hampshire,
532 U.S. at 751, 121 S.Ct. 1808. He wasn’t disadvantaged by the government’s earlier position and never meaningfully relied on it. In fact, Judge Gettleman never explicitly held that the show-cause order was covered by the Act, a holding that would have been erroneous in any event, as we’ll explain in a moment. Instead, Judge Gettleman appears to have simply assumed—along with everyone else—that the Act applied and proceeded accordingly.
2.
The Speedy' Trial Act in the Context of Contempt
Two distinctive features of criminal contempt complicate the task of directly applying the Act to contempt prosecutions. The first is that unlike other crimes, contempt can be charged through a court-issued show-cause order that the government later agrees to prosecute. The Speedy Trial Act, however, calculates the 70-day clock by reference to the date that either the “information or indictment” is made public or the defendant initially appears in court on “such charge,” whichever is later. § 3161(c)(1).
The government argued in the district court that because show-cause orders are not mentioned in the Act, this contempt prosecution is outside its scope.The government has abandoned this argument on appeal and now concedes that the Act can be triggered when the government accepts a judge’s referral to prosecute an alleged contempt. The government was right to make this concession.
The second unusual feature of criminal contempt is that it carries no statutorily authorized maximum punishment.
See
18 U.S.C. § 401 (“A court of the United States shall have power to punish by fíne or imprisonment, or both, at its discretion, ... contempt of its authority....”). The Speedy Trial Act applies to all offenses more serious than a Class B misdemean- or — that is, offenses punishable by more than six months’ imprisonment — regardless of the actual sentence imposed.
See
§ 3172(2). Trudeau argues that because the criminal contempt statute does not authorize a maximum penalty, Judge Gettle-man’s show-cause order charged him with a crime punishable by up to life in prison, notwithstanding the order’s six-month penalty cap.
This argument is hard to square with the approach the Supreme Court has taken in the analogous context of the right to trial by jury in contempt' prosecutions. The Sixth Amendment’s jury-trial right applies if the charged crime is “serious” rather than “petty” (and “petty” means punishable by imprisonment of six months or less).
See Frank v. United States,
395 U.S. 147, 148, 89 S.Ct. 1503, 23 L.Ed.2d 162 (1969). In
Frank
a contemnor had been convicted after a bench trial and sentenced to probation; he contended that he was entitled to a jury trial under the Sixth Amendment. As Trudeau does here, the contemnor in
Frank
argued that because there is no maximum punishment for contempt, it was necessarily a “serious” crime.
Id.
The Court disagreed, explaining that “Congress ... has not categorized con-tempts as ‘serious’ or ‘petty.’ ”
Id.
at 149, 89 S.Ct. 1503 (citation omitted);
see also Cheff v. Schnackenberg,
384 U.S. 373, 380, 86 S.Ct. 1523, 16 L.Ed.2d 629 (1966) (describing contempt as “an offense sui gener-is”). Given the broad range of potentially contumacious behavior, the Court held that “in prosecutions for criminal contempt where no maximum penalty is authorized, the severity of the penalty
actually imposed
is the best indication of the seriousness of the particular offense.”
Frank,
395 U.S. at 149, 89 S.Ct. 1503 (emphasis added);
see also Bloom v. Illinois,
391 U.S. 194, 211, 88 S.Ct. 1477, 20 L.Ed.2d 522 (1968) (same for state-court contempt convictions). Because the contemnor in
Frank
was not sentenced to any term of imprisonment at all, his contempt was properly treated as a petty offense and the Sixth Amendment’s jury-trial right was not implicated.
Frank,
395 U.S. at 152, 89 S.Ct. 1503.
As applied here, the Court’s reasoning in
Frank
includes a logical corollary: If the document initiating the contempt prosecution caps the sentence at six months or less, then it’s not necessary to wait until sentencing to know whether the Speedy Trial Act will apply — it won’t. Indeed, the Court said its post hoc analysis applies to “prosecutions for criminal contempt
where no maximum penalty is authorized.” Id.
at 149, 89 S.Ct. 1503 (emphasis added). A show-cause order capping a contempt sentence at six months is analogous to an indictment for
a Class B misdemeanor, which carries a maximum penalty of six months. Class B misdemeanors are not covered by the Act. As such, neither was Judge Gettleman’s show-cause order.
Nor did Judge Guzmán’s later, uncapped order—effectively a new charging instrument—make Judge Gettleman’s earlier order retroactively subject to the Act. And because the trial began within 70 nonexcluded days after Judge Guzmán’s show-cause order, there was no Speedy Trial Act violation.
Trudeau insists that this result conflicts with the Act’s approach to reprosecutions. The Act provides that if “any charge contained in a complaint ... is dismissed or otherwise dropped” and the defendant is later reindicted for “an offense based on the same conduct or arising from the same criminal episode,” then the 70-day clock resets and runs anew from the date of the second indictment. 18 U.S.C. § 3161(d)(1); see
United States v. Hemmings,
258 F.3d 587, 593 (7th Cir.2001);
United States v. Myers,
666 F.3d 402, 404-05 (6th Cir.2012);
United States v. Napolitano,
761 F.2d 135, 137 (2d Cir.1985) (“Congress considered and rejected [the] suggestion that the Act’s dismissal sanction be applied to subsequent charges if they arise from the same criminal episode as those specified in the original complaint. ...”). This is true even if the dismissal remedies a violation of the Act.
See, e.g., United States v. Sykes,
614 F.3d 303, 307 (7th Cir.2010). In other words, the baseline rule is that a new charge gets a new clock.
There is, however, one notable exception to this rule. Section 3161(h) lists periods of delay that must be excluded from the 70-day calculation. Under § 3161(h)(5), “[i]f the information or indictment is dismissed
upon motion of the attorney for the [gjovemment
and thereafter a charge is filed against the defendant for the same offense, or any offense required to be joined with that offense,” the clock does not reset with the issuance of a second charge. (Emphasis added.) Rather, the clock runs from the date of the initial charge and excludes any intermediate period when no charge is outstanding.
See United States v. Rein,
848 F.2d 777, 780 (7th Cir.1988).
But this exception can’t apply when the first charge did not itself fall under the Act. Section 3161(h) supplies a list of circumstances under which time must be
excluded.
It follows that if the speedy-trial clock did not start running with the first prosecution (because it was not covered by the Act), then
zero
nonexcluded days have accumulated before the start of the second prosecution. “Excluded days” only exist by reference to the Act. Nothing in § 3161(h)(5) implies that a judge is permitted to look back at the first indictment and retroactively exclude days that could not have been excluded initially. Accordingly, where, as here, an offense covered by the Act is charged following one that was
not
covered, the 70-day clock starts on the day that the eligible prosecution begins.
Trudeau tries an alternative approach, arguing that Judge Guzmán’s order was akin to a superseding indictment rather than a reindictment. A superseding indictment is issued without the initial charge first being dismissed.
See United States v. Johnson,
680 F.3d 966, 973 n. 3 (7th Cir.2012) (“In sum, when a superseding indictment is filed there is only one
criminal action; a reindictment results in two.” (quoting
United States v. Hoslett,
998 F.2d 648, 658 (9th Cir.1993))). In the Speedy Trial Act context, “a superseding indictment restating or correcting original charges does not restart the seventy-day clock.”
Hemmings,
258 F.3d at 593. This follows logically from the fact that no charge is dismissed under § 3161(d)(1) when the government issues a superseding indictment, so the clock runs continuously from the date of the initial charge.
Even if we treated Judge Guzmán’s order as a superseding indictment, however, there would be no Speedy Trial Act violation in this case. As we’ve just explained, if the Act did not apply to the initial charge, then the superseding indictment— to which the Act
does
apply — doesn’t retroactively start the speedy-trial clock from the date of the initial charge. If the new charge triggers the Speedy Trial Act for the first time, the clock begins to run when the new, elevated charge is filed. Here, Judge Guzmán’s uncapped show-cause order started the speedy-trial clock for the first time.
3.
Gilding
Trudeau’s final argument is that even if the Act did not apply to the first show-cause order, the second show-cause order was nonetheless improper because it merely “gilded” the first one. This argument rests on two cases suggesting that “if the crimes' for which a defendant is ultimately prosecuted really only gild the charge underlying his initial arrest and the different accusatorial dates between them are not reasonably explicable, the initial arrest may well mark the speedy trial provision’s applicability as to prosecution for all the interrelated offenses.”
United States v. DeTienne,
468 F.2d 151, 155 (7th Cir.1972);
see also United States v. Juarez,
561 F.2d 65, 68 (7th Cir.1977). Trudeau notes that nothing changed between the two show-cause orders other than identity of the presiding judge. That difference, he says, does not make the different prose-cutorial start dates “reasonably explicable.”
DeTienne
and
Juarez
both concerned the Sixth Amendment speedy-trial right, not the Speedy Trial Act, which
DeTienne
in fact predated. Trudeau hasn’t raised a Sixth Amendment argument; he relies solely on the Act, which provides its own detailed instructions about how reprosecutions should be handled. We’ve never applied a gilding theory in a Speedy Trial Act ease, and other courts have questioned its doctrinal vitality.
See, e.g., United States v. Watkins,
339 F.3d 167, 177 (3d Cir.2003);
see also United States v. Williams,
No. 09-CR-29, 2009 WL 1119417, at *3 (E.D.Wis. Apr. 27, 2009) (no gilding);
United States v. Toader,
582 F.Supp.2d 987, 990-91 (N.D.Ill.2008) (same).
We see no reason to gloss*the statute with a gilding doctrine, especially in a case with no evidence of bad-faith abuse of the Act by the government. As a general matter, the risk of improper evasion of the Act by the government is particularly low in a judge-initiated- contempt proceeding. And because Trudeau requested that his case be transferred out of Judge Gettle-man’s court, the government can’t be accused of judge shopping. We doubt that the gilding doctrine can ever overcome the terms of the Speedy Trial Act, but we are certain it does not do so here.
B. Jury Instruction on “Willfulness”
Trudeau’s next argument is a claim of instructional error. He contends that the jury instruction on the elements of contempt misstated the “willfulness” element of the offense. “The essential elements of a finding of criminal contempt
under 18 U.S.C. § 401(3) are a lawful and reasonably specific order of the court and a willful violation of that order.”
Doe v. Maywood Hous. Auth.,
71 F.3d 1294, 1297 (7th Cir.1995). The text of § 401(3) doesn’t contain a willfulness requirement, but we, like all circuits, hold that it is a necessary element that must be proved beyond a reasonable doubt.
Id.
In this context, “willfulness” means “a volitional act done by one who knows or should reasonably be aware that his conduct is wrongful.”
United States v. Greyhound Corp.,
508 F.2d 529, 531-32 (7th Cir.1974). The phrase “should reasonably be aware” describes the mental state of recklessness, meaning that the defendant was “conscious of a substantial risk that the prohibited events will come to pass.”
United States v. Mottweiler,
82 F.3d 769, 771 (7th Cir.1996) (citing
Farmer v. Brennan,
511 U.S. 825, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994));
cf.
Model Penal Code § 2.02(2)(c) (1962) (“A person acts recklessly ... when he consciously disregards a substantial and unjustifiable risk that a material element exists or will result
from
his conduct.”).
The government first proposed a jury instruction on willfulness,
and Trudeau then offered several modifications with the stated intent of making the instruction more closely
mirror
Mottweiler’s definition of “recklessness.” The government agreed to the proposed modifications. The final instruction was as follows, with Trudeau’s additions in bold, his deletions struck through, and subsequent technical edits in brackets:
A violation of a court order is willful 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 knows about is conscious of a substantial and unjusti-fi[able] risk that his actions the prohibited event will lead-to a violation of the court order? (here violation of the September [2], 200[4] Court Order) will come to pass and he disregards that risk.
In deciding whether the defendant acted willfully, you may consider all of the evidence, including what the defendant did or said.
Trudeau informed the judge that the jury instructions were “agreed to” as modified, and they were given to the jury without further modification by the court.
Trudeau now argues — for the first time on appeal — that recklessness isn’t sufficient to satisfy the “willfulness” element of contempt. He points out that the Supreme Court has interpreted the “willfulness” element of certain criminal statutes to require the government to prove that the defendant
knew
that his conduct violated the law, not merely that the defendant was
reckless
with respect to the illegality of his actions.
See Safeco Ins. Co. of Am. v. Burr,
551 U.S. 47, 58 n. 9, 127 S.Ct. 2201, 167 L.Ed.2d 1045 (2007) (collecting cases). He says his case “presents an excellent opportunity for the [c]ourt to revisit
Greyhound”
and overrule it.
See
7th Cir. R. 40(e).
Quite the contrary. “We have repeatedly held that approval of a jury instruction in the district court extinguishes any right to appellate review of the instruction.”
United States v. Yu Tian Li,
615 F.3d 752, 757 (7th Cir.2010).. Trudeau expressly approved th'e willfulness instruction after offering modifications that were accepted in toto. He cannot now argue that the instruction was wrong.
See id.
(“Having proposed a jury instruction virtually identical to the instruction actually used by the district court, [the defendant] cannot now contest that instruction.”);
see also
Fed.R.CrimlP. 30(d) (“A party who objects to any portion of the instructions ... must inform the court of the specific objection.... Failure to object ... precludes appellate review, except as permitted under [plain-error review].”).
Trudeau tries to rescue his waived argument by suggesting it was merely
forfeited
because any objection in the district court would have been futile in light of
Greyhound
’s status as binding precedent. Wrong again. Trudeau could have preserved a challenge to the continuing vitality of
Greyhound
even though the district court would have been bound by that decision.
Cf. Dixon v. United States,
548 U.S. 1, 4, 126 S.Ct. 2437, 165 L.Ed.2d 299 (2006) (considering the arguments of a petitioner who preserved her objection to a well-settled jury instruction by objecting to it even though “the trial court, correctly finding itself bound by Circuit precedent, denied petitioner’s request”).
In any case, Trudeau’s argument fails even if only forfeited. Forfeiture permits review for plain error, and “[a]n error is plain if it was (1) clear and uncontroverted at the time of appeal and (2) affected substantial rights, which means the error affected the outcome of the district court proceedings.”
United States v. DiSantis,
565 F.3d 354, 361 (7th Cir.2009) (internal quotation marks omitted). The willfulness instruction was — and is — perfectly in line with controlling precedent in this circuit. Trudeau’s argument rests on cases interpreting statutory-willfulness requirements in other contexts, not the judicially implied willfulness requirement in criminal contempt. We have emphasized that “willful” “is a ‘word of many meanings,’ and ‘its construction [is] often ... influenced by its context.’ ”
Ratzlaf v. United States,
510 U.S. 135, 141, 114 S.Ct. 655, 126 L.Ed.2d 615 (1994) (quoting
Spies v. United States,
317 U.S. 492, 497, 63 S.Ct. 364, 87 L.Ed. 418 (1943)) (alteration in original).
Trudeau relies on
United States v. Holmes,
93 F.3d 289 (7th Cir.1996), but to no avail. In
Holmes
the defendant failed to object tó á jury instruction that was in line with circuit precedent.
Id.
at 292. After his trial but before his appeal, the Supreme Court held that a jury instruction identical to the one used at his trial was mistaken as a matter of law.
Id.
We held that the defendant’s forfeited objection was reviewable for plain error and that in light of the Court’s intervening decision invalidating an identical instruction, the plain-error standard was satisfied.
Id.
at 292-93.
Here, in contrast, Trudeau can point to no authority that makes the willfulness instruction used at his trial plainly erroneous. We would need to exercise plenary review to overturn existing circuit precedent in the absence of an on-point holding of the Court.
Finally, Trudeau calls our attention to
Elonis v. United States,
— U.S.-, 135 S.Ct. 2001, 192 L.Ed.2d 1 (2015), a decision issued after we heard oral argument in this case.
Elonis
held that , although the
federal statute criminalizing threats does not specify a mental state,
see
18 U.S.C. § 875(c), negligence isn’t enough,
Elonis,
135 S.Ct. at 2011. The Court expressly declined to decide whether recklessness would have sufficed.
Id.
at 2013.
Elonis
does not call
Greyhound
into doubt.
C. Sufficiency of the Evidence
Trudeau next challenges the sufficiency of the government’s evidence. This is always a heavy lift, and it’s especially so here.
See United States v. Reed,
744 F.3d 519, 526 (7th Cir.2014) (“We will overturn a verdict for insufficiency of the evidence only if, after viewing the evidence in the light most favorable to the government, the record is devoid of evidence from which a rational trier of fact could find guilt beyond a reasonable doubt.”).
Trudeau’s main contention is that the government presented no “state-of-mind evidence” from which the jury could conclude that he willfully violated the consent order. He argues that without direct evidence of his mental state, the jury was left to choose between several equally plausible benign explanations for his misrepresentations. He suggests, for example, that the misrepresentations might have been attributable to the possibility that he left his glasses at home and misread the teleprompter (while filming each of three infomercials?). Or the teleprompter might have been negligently loaded with an unedited version of the script (and he was unaware that the words he spoke bore little resemblance to the book he wrote?).
Setting aside the obvious implausibility of these fanciful explanations, the material point for our purposes is that the government had no obligation to present direct state-of-mind evidence. Rather, “the trier of fact is entitled to employ common sense in making reasonable inferences from circumstantial evidence.”
United States v. Starks,
309 F.3d 1017, 1021-22 (7th Cir.2002). Needless to say, the jury’s verdict is not called into doubt because a defendant can hypothesize on appeal a few alternative interpretations of the evidence. Trudeau was free to suggest his lost-eyeglasses or dysfunctional-teleprompter theories to the jury. The only question now is whether the evidence was adequate to prove each element of contempt beyond a reasonable doubt. We’ve previously explained that Trudeau’s
The Weight Loss Cure
infomercials included “blatant misrepresentations” that were “patently false” and “outright lie[s].”
Trudeau I,
579 F.3d at 766-68. It’s no surprise that the jury reached the same conclusion. The evidence was easily sufficient to convict.
D. Exclusion of Evidence
Trudeau also challenges the judge’s exclusion of two categories of defense evidence. We review the district court’s evidentiary rulings for abuse of discretion,
United States v. Foley,
740 F.3d 1079, 1086 (7th Cir.2014), and will reverse only if no reasonable person could take the judge’s position,
United States v. Schmitt,
770 F.3d 524, 532 (7th Cir.2014). Even then, no remedy is available unless the error affected the defendant’s substantial rights, meaning that the average juror would have found the prosecution’s case significantly less persuasive absent the erroneous evidentiary ruling.
Id.; see
Fed. R.CrimP. 52(a).
1.
The
Natural Cures
Evidence
Shortly after the 2004 consent decree took effect, Trudeau published a book called
Natural Cures “They” Don’t Want You to Know About
and prepared an infomercial to promote it, as he had for other products and pitches. As we’ve explained, although the consent order didn’t require
the FTC’s approval, Trudeau sent the Commission a transcript of the ad. The Commission had no objection, though it clearly stated that its approval was limited to this single transcript.
At trial Trudeau sought to introduce the
Natural Cures
book and infomercial and related correspondence with the FTC. The ostensible purpose was to show that he relied on the FTC’s approval of the
Natural Cures
infomercial in interpreting the boundaries of the consent order’s “no misrepresentations” clause. His theory was that if he had used the
Natural Cures
infomercial as a template for
The Weight Loss Cure
ads, it would have been more likely that he acted in good faith — and therefore did not willfully violate the consent order — when producing the infomercials at issue in this case. Trudeau wanted to introduce the
Natural Cures
evidence even if he did not testify that he actually used the FTC-approved infomercial as a template.
Trudeau made essentially the same argument in his civil contempt appeal. There, we said:
Nothing about the FTC’s prior approval should have led Trudeau to believe that he could selectively quote his weight loss book as being “easy” and “simple,” while leaving out nearly every relevant detail about the weight loss protocol.... The extent to which Trudeau could reasonably rely on the FTC’s approval of the
Natural Cures
infomercial ended when Trudeau began uttering false statements and quotes that mischaraeterized the content of the
Weight Loss Cure
[ ] book.
Trudeau I,
579 F.3d at 767-68. That analysis is not conclusive here, however, because civil and criminal contempt have different elements. Only criminal contempt requires willfulness. Thus, the issue is whether the
Natural Cures
evidence was relevant to Tradeau’s state of mind.
The judge held that Trudeau first had to provide some evidence that he actually used
Natural Cures
as a template, probably through his own testimony. And even if he testified to that effect, the judge added this:
[The] template testimony is relevant only if there is evidence to suggest that defendant’s use of the FTC-approved
Natural Cures
infomercial was
reasonable, i.e.,
that ... the content of [the
Natural Cures
book and infomercial] is so similar to that of the
Weight Loss Cure
book and infomercials that approval of one
logically
includes the other.... [I]f [such evidence] does [exist], and [the] defendant offers template testimony, the
Natural Cures
evidence may be relevant to willfulness.
(Emphases added.)
The second step in the judge’s analysis is mistaken. Because the willfulness element of criminal contempt is subjective, it was error to .impose an objective “reasonableness” requirement.
The first step in the analysis is a closer call. The judge required Trudeau to testify or present circumstantial evidence linking the
Natural Cures
evidence to his state of mind. It’s trae that the state-of-mind inquiry is not a free-for-all in which
any
evidence that could
possibly
have influenced a defendant’s mental state is
necessarily
relevant; if that were the case, “a defendant could introduce evidence that would invite the jury to speculate a non-existent defense into existence.”
United States v. Zayyad,
741 F.3d 452, 460 (4th Cir.2014). When a defendant offers nothing but speculation to link a piece of evidence to his state of mind, the evidence is properly excluded unless the defendant offers corroboration that the evidence
in fact
influenced his mental state.
United
States v. Kokenis,
662 F.3d 919, 930 (7th Cir.2011);
see also id.
(“Kokenis seems
to
be asserting that just because there may be evidence to show that
someone
could have had a good-faith belief that he wasn’t violating the law, then
he
should be able to present such evidence to the jury.... Without any .connection to his state of mind, such evidence is irrelevant.”) (emphases added);
Zayyad,
741 F.3d at 460 (“If the defendant wants to present a theory or belief that might have justified his actions, then he must present evidence that he in fact relied on that theory or belief.”);
United States v. Curtis,
782 F.2d 593, 599 (6th Cir.1986) (“Unless there is a connection between the external facts and the defendant’s state of mind, the evidence of the external facts is not relevant.”). Often, but not necessarily, this corroboration comes in the form of the defendant’s own testimony.
Whether the inferential gap between the proffered evidence and the defendant’s mental state is great enough to require corroboration is necessarily a fact-specific inquiry. In
United States v. Kokenis,
for example, the defendant wanted experts to testify about an accounting theory that he claimed he relied on in good faith (but mistakenly) when calculating his taxes.
See
662 F.3d at 930. Because the defendant could not offer any evidence that he in fact used that theory, or even knew about it, we held that the judge properly excluded the testimony as irrelevant. Id. In other cases we’ve held that evidence of this type was properly excluded when the link between the evidence and the defendant’s state of mind was too attenuated or speculative. See,
e.g., United States v. Beavers,
756 F.3d 1044, 1050 (7th Cir.2014) (conditioning the admissibility of evidence of the defendant’s actions postarrest on his ability to link them to his mental state at the time of the crime);
Zayyad,
741 F.3d at 460 (prohibiting cross-examination of witnesses about the “gray market” in diverted prescription drugs because the defendant had not shown that he knew about such markets);
Curtis,
782 F.2d at 598-600 (excluding expert testimony that an area of tax law was unsettled and complex in the absence of evidence that the defendant himself was confused or relied on the expert’s advice).
Although the district judge deserves significant deference in these determinations, we think Trudeau’s case is distinguishable from the. ones we’ve just mentioned. There is no question that Trudeau
knew
about the FTC’s approval of the
Natural Cures
infomercial; he was the one who asked for it. And there’s a logical link between that knowledge and his mental state: It stands to reason that Trudeau’s experience with
Natural Cures
— his first infomercial after the consent order — would have had at least
some
effect on the way he approached
The Weight Loss Cure
infomercials just two years later. Although a defendant’s right against self-incrimination does not permit him to introduce evidence that would only be relevant in light of his testimony,
see Beavers,
756 F.3d at 1051, the admission of evidence that is
independently
probative of a defendant’s state of mind should not be conditioned on corroboration. Under the circumstances here, the basic relevance of the
Natural Cures
evidence strikes us as straightforward and should not have been conditioned on Trudeau’s introduction of corroborating evidence.
If excluding this evidence was error, however, it was clearly harmless. Trudeau’s infomercials for
The Weight Loss Cure
contained gross misrepresentations. As we said in
Trudeau I,
nothing about the FTC’s approval of the
Natural Cures
infomercial gave a green light to blatant falsehoods. Furthermore, the
large majority of misrepresentations in
The Weight Loss Cure
infomercials bore no relationship at all to the earlier infomercial for
Natural Cures.
For example, Trudeau said that
The Weight Loss Cure
involved no portion control (when it required extensive portion control); no food deprivation (when it required a strict diet); and no restrictions on what you could eat after finishing the protocol (when it had lifetime restrictions). Trudeau doesn’t explain how the FTC’s approval of the
Natural Cures
.infomercial could possibly have led him to believe that these flagrant and highly specific misrepresentations were acceptable. The likelihood that the jury would have been swayed by this evidence is vanishingly small. Substantial justice does not require reversal.
2.
Misinterpretation of the Consent Decree’s Terms
Trudeau also wanted to present evidence that he simply misinterpreted the consent decree by construing it to permit statements of opinion and personal experiences protected by the First Amendment. The judge wouldn’t allow it. That ruling was not an abuse of discretion.
A “mistaken interpretation” defense to criminal contempt requires a degree of plausibility and at least
some
evidence of good faith, both of which are utterly lacking here:
To provide a defense to criminal contempt, the mistaken construction- must be one which was adopted in good faith and which, given the background and purpose of the order, is plausible. The defendant may not avoid criminal contempt by “twisted interpretations” or “tortured constructions” of the provisions of the order.
Greyhound,
508 F.2d at 532 (quoting
United States v. Gamewell,
95 F.Supp. 9, 13 (D.Mass.1951)); see
also United States v. McMahon,
104 F.3d 638, 644-45 (4th Cir.1997) (“[A] person ‘is not permitted to maintain a studied ignorance of the terms of a decree in order to postpone compliance and preclude a finding of contempt.’ ” (quoting
Perfect Fit Indus. v. Acme Quilting Co.,
646 F.2d 800, 808 (2d Cir.1981))).
Trudeau says he thought the consent decree preserved his First Amendment right to make statements of opinion or personal experience. As we’ve explained, however, the infomercials for
The Weight Loss Cure
are replete with blatant factual misrepresentations that could not possibly be classified as statements of opinion or personal experience. The judge was right to exclude this category of defense evidence.
E. Reasonableness of Sentence
Sanctions for criminal contempt are intended to be punitive and “to vindicate the authority of the court.”
United Mine Workers of Am. v. Bagwell,
512 U.S. 821, 828, 114 S.Ct. 2552, 129 L.Ed.2d 642 (1994). Trudeau’s guidelines range was 235 to 293 months, but the government recommended a below-guidelines sentence of ten years.
Judge Guzmán found that a within-guidelines sentence would be reasonable, but he adopted the government’s recommendation and imposed a ten-year sentence.
Trudeau argues that ten years is disproportionate because Judge Gettleman initially thought a six-month sentence was sufficient. He also notes that the only contempt sentence in this circuit longer than his involved a witness’s refusal to testify in a terrorism prosecution.
See United States v. Ashqar,
582 F.3d 819, 822 (7th Cir.2009). Finally, he suggests that his offense is less blameworthy than some frauds because each book buyer lost “only” $29.95 (plus shipping and handling).
A below-guidelines sentence will almost never be unreasonable,
United States v. Tahzib, 518
F.3d 692, 695 (7th Cir.2008), and this one certainly isn’t. Although we don’t know the rationale for the six-month cap on the initial show-cause order, nothing suggests that Judge Gettleman made a preliminary calculation of the guidelines range. And it’s unsurprising that a terrorism-related contempt conviction would draw a higher sentence than Trudeau’s. Trudeau’s effort to minimize his culpability by reference to the small losses suffered by each book buyer requires no comment.
Based on the size of Trudeau’s fraud and the flagrant and repetitive nature of his contumacious conduct, the ten-year sentence — about half the bottom of the guidelines range — was not unreasonable.
Affirmed.