On Wednesday, a United States federal appeals court upheld convictions of fraud and obstruction of justice against media mogul Conrad Black, along with three other executives from his former press corporation Hollinger International.
Black, a Canadian-born who holds the title Baron Black of Crossharbour in the United Kingdom, was found guilty in July 2007 of three counts of wire and mail fraud for giving himself and others millions of dollars in illegal bonuses taken from Hollinger holdings, and for obstruction of justice based on surveillance footage of him moving 13 boxes of documents out of his Toronto office to his home the day after he was informed that he was being investigated. He was sentenced, and from March this year began a 6 1/2 year prison term. Peter Atkinson and John Boultbee were convicted on the same fraud charges, and were sentenced to terms of 24 and 27 months respectively, while Mark Kipnis, who was implicated in the fraud, was given probation with 6 months of home detention.
The appeals panel from the United States Court of Appeals for the Seventh Circuit, who heard the defense attorneys’ oral arguments, presented its opinion in a 16-page document in which they rejected arguments against both the fraud and obstruction charges. They noted that while the defense had presented a “no harm-no foul argument”, in which they argued that they were owed the money appropriated, “such arguments usually fare badly in criminal cases”. They also dismissed claims that instructions given to the jury by the judge had been incomplete, or unclear, stating that “the defendants proposed a misleading statement as an alternative”, and that in such situations the judge is allowed to stay with the original instruction, and in particular is not required “that a submitted charge be technically perfect to alert the court to the need for a particular charge”.
The appeals judges also discounted arguments from the defense regarding whether the defendants were all aware of the illegality of the transactions, making reference to an “ostrich argument” (based on the urban legend that ostriches sensing danger stick their heads in the sand), in that choosing not to investigate the suspicious nature of the payments was equivalent to accepting their illegality. An argument from Black’s defense regarding the obstruction charge, that in moving the documents he was not in fact escaping scrutiny, was similarly rejected, as “All that needed to be proved is that the document was concealed in order to make it unavailable in an official proceeding,” according to the ruling as written by Judge Richard Posner.
Andrew Frey, the defense attorney for Conrad Black, said that the court’s decision was based on “a number of factual misunderstandings”, and that the defendants were considering a request for a rehearing of the appeal.
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