Not any more

All of Conrad Black’s convictions should be dropped, defence contends

In Canada on August 17, 2010 at 09:16

Conrad Black’s remaining convictions should be dropped because the prosecution’s case is “feeble” now that the U.S. Supreme Court has narrowed the scope of the law used to convict him, the former media mogul’s lawyers say.

Last month the court set aside Lord Black’s convictions for so-called honest-services fraud – a concept developed in the 1970s to convict corrupt politicians – because honest-services fraud is limited to bribes or kickbacks, neither of which Lord Black was accused of.

It’s very likely at least one of the jurors in Lord Black’s trial used the concept of honest-services fraud to justify Lord Black’s other convictions for fraud and obstruction of justice, defence lawyer Miguel Estrada argued in a filing submitted to the U.S. Court of Appeals late Monday.

“The government cannot possibly negate the likelihood that at least one juror took the shortest path to guilty verdicts by convicting for something less than fraud, i.e., honest-services fraud,” the documents say.

And the obstruction-of-justice charge is irrelevant if all the other charges against Lord Black are thrown out, they add.

“The government cannot now establish beyond a reasonable doubt that the jury would have credited the government’s feeble showings on those issues if it had been aware that the underlying fraud offence it most likely found — ‘honest services’ — was not a crime at all,” the documents say.

“Because the government cannot meet its burden, this court should now reverse each of the four counts of conviction that survived the jury’s sweeping rejection of the government’s theft theories,” they add.

The defence’s filings also apply to the remaining convictions against co-defendants Peter Atkinson, John Boultbee and Mark Kipnis.

The prosecution’s filings were not yet available on the U.S. Court of Appeals website, and a spokesman did not immediately return calls for comment Monday night.

However, reports said the prosecution maintained that Lord Black’s remaining convictions should be upheld.

Bloomberg, citing the 28-page brief submitted to the court Monday, quoted prosecutors as saying the “erroneous honest services instruction was harmless beyond a reasonable doubt.”

A panel of three judges at the U.S. appeals court is examining how to proceed with Lord Black’s case following the Supreme Court’s decision last month.

Montreal-born Lord Black, who was forced to renounce his Canadian citizenship in 2001 in order to accept an invitation to join the British House of Lords as Lord Black of Crossharbour, is currently free on bail after serving more than two years in a Florida prison.

Lord Black recently dropped his request to return to Canada and will remain in the United States while the appeal that could bring a final resolution to his case goes ahead.

Monday’s submissions will be reviewed by a panel of three appellate circuit judges led by Judge Richard Posner, who presided over Lord Black’s last appeal and took only 20 days to reach a decision.

Lord Black is expected to return to a Chicago court on Sept. 20 for a bail update, during which he could make a request to return to Canada again.

He is still facing several civil suits, including a $71-million lawsuit by the U.S. Internal Revenue Service for allegedly unpaid taxes, a suit he has challenged.

The convictions were in relation to $5.5-million in payments that Lord Black, Kipnis and Boultbee received from a subsidiary of the Hollinger media chain, which Lord Black founded.

U.S. prosecutors alleged Lord Black and three other executives orchestrated a scheme to pocket about $60-million in non-compete payments negotiated with buyers when Hollinger sold newspaper assets — money, prosecutors contend, that should have gone to shareholders.

The non-compete payments – stemming from the sale of Canadian papers to the former CanWest media chain and U.S. papers to several U.S. buyers in 2000 – were at the heart of the government’s case.

Hollinger once owned the Chicago Sun-Times, The Daily Telegraph of London, The Jerusalem Post and hundreds of community papers in the U.S. and Canada.

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