Conrad Black says he is “entitled” to be released on bail from a Florida prison pending his appeal because most of his fraud convictions have been thrown into question by the U.S. Supreme Court and, thus, his time behind bars could outdistance his ultimate sentence.
In a 19-page filing with the U.S. Court of Appeals for the Seventh Circuit, Lord Black argued yesterday that the circumstances surrounding his bail request have changed dramatically since the first time he applied — and was denied — in 2007, a few months after a Chicago jury convicted him.
“At nearly 66 years of age, he has a particularly strong interest in bringing finality to these proceedings,” his lawyer, Miguel Estrada, argues in the legal brief. The Washington-based lawyer added that any “additional time he spends in prison between now and a favourable ruling can never be returned to him.”
Last month, the U.S. Supreme Court unanimously set aside Lord Black’s three honest services fraud convictions because the controversial statute is limited to bribe or kickback schemes, which were not at issue in his criminal case.
The high court decided that prosecutors erred in using the federal law to convict him, but still remanded the case to a lower appeals court to determine whether his convictions should be overturned.
In his bail brief, Lord Black argues that prosecutors hammered home to the jurors that they could, and indeed must convict on the “honest services” charge alone. The “sheer repetitiveness of the government’s argument ensured that even the most inattentive juror could not miss the point,” the filing says. “It is literally impossible on this record for the government to meet its burden of demonstrating that the verdict was not tainted beyond a reasonable doubt.”
Accordingly, Lord Black has asked the lower appeals court to also overturn what would be his single remaining conviction on obstruction of justice.
“The Supreme Court’s rejection of the government’s fraud theory goes to the heart of the most hotly contested issues at Mr. Black’s trial – whether there was a scheme to defraud and whether Mr. Black ‘corruptly’ intended to obstruct the investigation of this non-crime...”
Lord Black was convicted on one count of obstruction of justice for removing 13 boxes from Hollinger Inc.’s Toronto head office, six days before he was due to be evicted by the company’s new management.
U.S. prosecutors successfully argued at trial that the removal of the boxes was illegal because he was the subject of an investigation.
However, in his bail application, Lord Black argued the “government’s proof of corrupt intent was desperately threadbare,” because it never produced evidence proving he knew that a request for documents had been issued.
As well, his legal filing questioned whether the jury would have convicted Lord Black on the obstruction charge “if it had been aware that the offence Mr. Black was supposedly endeavoring to obstruct was, as he maintained all along, not a crime at all.”
And, the Lord Black’s filing adds, it would be “odd” for the U.S government to now contend, much less prove beyond a reasonable doubt, “that the fraud and obstruction offences had nothing to do with each other.”
Even if the obstruction conviction remains, his lawyer argued, the amount of time Lord Black will likely be sentenced to serve under federal sentencing guidelines is shorter than the time he has already spent at the Coleman Federal Correctional Complex, which he entered in March, 2008.
“With good-time credit, Mr. Black has already served 32 months of his 78-month sentence. If the obstruction count alone remains in place ... the range would drop to 15-21 months,” Mr. Estrada said in the bail application.
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