Posted on June 27, 2011 by Anthony Lake

Conrad Black Re-Sentenced to an Additional 13 Months' Imprisonment


 

Photo credit: http://dealbreaker.com

On Friday, U.S. District Judge Amy St. Eve of the Northern District of Illinois re-sentenced Lord Conrad Black, former CEO of newspaper giant Hollinger International, Inc., to serve the remainder of his sentence, as reported in Canada's Globe and Mail. Black has served 29 months of his original 78 month sentence, imposed following his conviction on three of 12 counts in July of 2007. He has been on release from prison for nearly a year while his appeals of his convictions have been pending.

According to the article, Black has sued Richard Breeden, a special investigator for Hollinger and former Chairman of the U.S. Securities and Exchange Commission, and others for libeling him in a special report prepared for Hollinger. The Supreme Court of Canada is considering whether the dispute should be heard in Canada or the United States. 

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Posted on June 1, 2011 by Anthony Lake

Supreme Court Declines to Hear Conrad Black's Appeal of His Two Remaining Convictions

The U.S. Supreme Court yesterday denied the petition for certiorari by former international media mogul, Canadian citizen and British Lord, Conrad Moffat Black, as reported in the Washington Post.

Mr. Black was the CEO of Hollinger International, Inc., which owned newspapers worldwide. He was indicted (in an indictment made available by FindLaw which may be viewed here) with other officers and employees of Hollinger in the Northern District of Illinois in November of 2005 on 11 counts, in an original indictment which charged mail fraud conspiracy, wire fraud conspiracy and substantive counts of mail and wire fraud. The counts all referenced the "honest services" fraud statute, 18 United States Code section 1346. Testifying to the vigorousness of his defense, on July of 2007, a jury acquitted Mr. Black on 9 counts but convicted him on three others.

Mr. Black then challenged his convictions on appeal. In June of last year, the Supreme Court handed down its three "honest services" decisions, Skilling v. U.S., Black v. U.S., and Weyrauch v. U.S. In Skilling, the main decision involving former Enron President Jeffrey Skilling, the Court rejected the old "intangible right" to an employee's honest services theory and held that, in order to avoid being unconstitutionally vague, section 1346 applies to bribery or kickback schemes, and not to mere self-dealing by an employee. In Mr. Black's case, the Court unanimously held that the jury had not been properly instructed on honest services fraud at trial, and vacated his convictions and remanded. Then in October of last year, the Seventh Circuit Court of Appeals, in an opinion authored by distinguished Judge Richard Posner, struck two of the three remaining counts against Mr. Black, leaving him convicted on a single fraud count and a count for obstruction of justice. Mr. Black again appealed these two remaining convictions to the Seventh Circuit, which upheld them last December, and then to the Supreme Court, which has now declined to review them. Mr. Black is scheduled to be resentenced on June 24.

Source: McLean's.ca

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Posted on November 4, 2010 by Anthony Lake

The Acquittal of Army Col. Robert Morris and the Debate Over the Hyde Amendment

In 1999, United States Army Colonel Robert Morris, then a Lieutenant Colonel, was targeted by the State Department and the Department of Justice over his charitable non-profit organization, Partners International, as Tod Robberson of the Dallas Morning News informed readers in a Monday editorial. At the time, according to Robberson, Federal investigators were investigating whether alleged charitable organizations participating in a program under which the organizations could obtain supplies from decomissioned military bases were, in turn, illegally selling the supplies for profit. According to Colonel Morris' impressive biography, Partners International's projects "included support to an eye clinic in Zimbabwe, providing medical supplies to a women and children’s hospital in Grenada, Human Rights training for international military officers, and support to homeless shelters, battered women’s shelters, Native American programs and the disabled."

Proving that no good deed goes unpunished, as Robberson writes, Colonel Morris was subsequently indicted in the Northern District of Texas, despite a two year investigation by the Army which concluded that Colonel Morris had not engaged in any wrongdoing. The government moved the case to Georgia, where the jury acquitted Colonel Morris following trial after deliberating for only 45 minutes.

Unfortunately, Colonel Morris accumulated close to $300,000 in legal and other expenses as a result of the investigation and prosecution. His elderly parents cashed in their insurance policies and took additional mortgages on their home to help fund his defense. Colonel Morris would not have been able to afford his defense at all if former presidential candidate and president of EDS H. Ross Perot had not donated to his defense. Colonel Morris happily received a promotion to full Colonel from the Army following his acquittal, but his ordeal later caused him to retire and to end a model career which could have led to his promotion to Brigadier General.

Robberson laments the very lamentable fact that Colonel Morris has not received a dime to compensate him for the exhorbitant and ruinous expenses caused by the government's ill-conceived prosecution, and cites a USA Today article discussing Colonel Morris' travails and the Hyde Amendment, an act designed with the intent to award wrongfully prosecuted and exonerated defendants their attorney's fees and legal expenses. As the article notes, the Hyde Amendment, while well-intentioned, is practically toothless, since the standards for granting relief are exceptionally high. It notes the infrequency of Hyde Amendment awards since the Amendment was passed in 1997.

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Posted on August 11, 2010 by Anthony Lake

Conrad Black on the Problems of the U.S. Justice and Prison System: Prisoners are "An Ostracized, Voiceless Legion of the Walking Dead"

 

Canadian citizen Conrad Black, former head of Hollinger International, Inc., and once the third biggest newspaper magnate in the world, was charged in the Northern District of Illinois with diverting corporate funds for his own use and was convicted in July of 2007for "honest services" mail fraud, in violation of 18 U.S.C. s 1846, and obstruction of justice, following a jury trial. On June 24, 2010, the Supreme Court issued an opinion in Black v. U.S., case # 08-876, vacating Black's honest services convictions and remanding his case on the ground that the district court's instruction to the jury on honest services was incorrect. Black was incarcerated at the Federal Correctional Center in Coleman, Florida, and was released on bail two weeks ago after spending two years and four months in prison. He remains in the U.S. pending an appeal to return to Canada.

Lord Black's (he was made a member of the House of Lords of the United Kingdom by Queen Elizabeth II and Prime Minister Tony Blair) legal odyssey aside, he has become an observer and critic of the U.S. criminal justice system. Black has kept a diary, which may be viewed here, regarding his experience in prison. Most recently, on July 31, Black published a letter in Canada's National Post entitled "Conrad Black: My Prison Education." Black does pause to criticize his conviction in passing, citing the "fallibility of American justice." However, Black's letter provides a glimpse into life at the end of the tunnel of the federal criminal justice system. Black discusses his daily calls to his wife and his difficulties in getting updates on his application for bail in prison. He recounts the interest of his fellow inmates in the developments and media attention in his case, and rather poignantly describes the lengthy goodbyes from his friends:

"The Mafiosi, the Colombian drug dealers, (including a senator with whom I had a special greeting as a fellow member of a parliamentary upper house), the American drug dealers, high and low, black, white, and Hispanic; the alleged swindlers, hackers, pornographers, credit card fraudsters, bank robbers, and even an accomplished airplane thief; the rehabilitated and unregenerate, the innocent and the guilty, and in almost all cases the grossly over-sentenced, streamed in steadily for hours, to make their farewells."

"Most goodbyes were brief and jovial, some were emotional, and a few were quite heart-rending. Many of the 150 students that my very able fellow tutors and I had helped to graduate from high school, came by, some of them now enrolled in university by cyber-correspondence."

 

Black goes on to criticize harsh federal sentencing policies, especially for drug offenders, citing in particular the disparities in the crack cocaine sentencing Guidelines and their disproportionate impact on African-Americans. He also takes the public defender system to task for being subservient to the will of prosecutors, and laments the United Sates' massive prison population and prison industry in comparison with other Western democracies. Black concludes that "America’s 2.4 million prisoners, and millions more awaiting trial or on supervised release, are an ostracized, voiceless legion of the walking dead; they are no one’s constituency."

 

CTV.ca

 

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Posted on March 26, 2008 by Anthony Lake

Medellin v. Texas: The Effect on International Law on Domestic Criminal Law and Procedure

            Defense counsel with foreign clients will not be pleased with the latest offering from the United States Supreme Court and its take on international law. José Ernesto Medellín, a Mexican national, was convicted and sentenced in a Texas state court for the capital murder of two girls. Fortunately, Mexico brought an action in the International Court of Justice (ICJ) in the Hague against the United States on behalf of Medellin’s and 51 other Mexican nationals in Case Concerning Avena and Other Mexican Nationals (Mex. v. U. S.), 2004 I. C. J. 12 (Judgment of Mar. 31) (Avena). The ICJ held that, based on violations of the Vienna Convention, the nationals were entitled to review and reconsideration of their convictions and sentences in state courts in the United States, regardless of whether the defendants had waived their rights to raise challenges under the Vienna Convention on Consular Relations (Vienna Convention or Convention) for failure to comply with generally-applicable state rules governing challenges to criminal convictions. President George W. Bush even showed his support for the international tribunal by issuing a Memorandum to the Attorney General in which he directed that the United States discharge its international obligations by having State courts give effect to Avena. Medellin did not raise any Vienna Convention claims prior to his conviction. After the state court dismissed Medellin’s petition for writ of habeas corpus to raise his Vienna Convention claims, the United States Supreme Court granted certiorari in the case of Medellin v. Texas.

            Chief Justice John Roberts, writing for the majority, recognized that the Vienna Convention, which had been ratified by the United States, guarantees that a person detained by a foreign country may require authorities of the detaining country to inform consular authorities of the detainee’s home country, and that the detainee may request assistance from the consul of his country. Furthermore, “Optional Protocol” of the Convention provides that disputes arising out of an interpretation or application of the Convention shall lie within the compulsory jurisdiction of the ICJ.

            The majority acknowledged that the ICJ’s decision in Avena constituted an international law obligation on the United States. However, it held that “not all international law obligations automatically constitute binding federal law enforceable in United States courts.” It noted that there was a distinction between treaties which automatically have effect as domestic law and those which do not and that treaties do not become domestic law “‘unless Congress has either enacted implementing statutes or the treaty itself conveys an intention that it be ‘self-executing’ and is ratified on these terms.’” (Citing Igartúa-De La Rosa v. United States, 417 F. 3d 145, 150 (1st Cir. 2005)). The majority concluded that “[b]ecause none of these treaty sources creates binding federal law in the absence of implementing legislation, and because it is uncontested that no such legislation exists… the Avena judgment is not automatically binding domestic law.”

            The Court held that the Convention’s Optional Protocal was a “bare grant of jurisdiction,” which said nothing about the effect of ICJ decisions and did not require signatories to comply with ICJ judgments. It noted that the Convention itself merely represented a “commitment” by member nations to comply with an ICJ decision, and that there was no indication that Congress, in ratifying the United Nations Charter, ever intended to vest ICJ decisions with immediate legal effect in U.S. courts. Also, the fact that the ICJ was required to enforce its judgments through the U.N. Security Council, on which the United States possesses a veto, indicated that its decisions were not immediately and directly binding in the U.S. Finally, the majority held that the President could not convert a non-self-executing treaty into a self-executing one by merely issuing a Memorandum. Justices Breyer, Souter and Ginsburg, naturally, dissented.
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