Conrad Black's criminal case ended with a conviction for obstruction of justice and another conviction for mail fraud. His lead appellate counsel, Miguel Estrada, harshly described the court's decision affirming Black's convictions as "not merely erroneous'," but "a complete travesty."
The conviction for obstruction of justice related to Black being videotaped removing thirteen boxes of documents from the Toronto office of a holding company of Hollinger at a time when a grand jury investigation was underway against Black and the Securities and Exchange Commission (SEC) had served Black's counsel with notice of an impending document production request. There had been five previous document production requests from the SEC that resulted in Black fully complying and turning over 112,000 pages.
During his final appeal in Chicago, the prosecutor noted in response to a question about Black's obstruction conviction, that Black was on notice that the investigators had served document production requests on him. This assertion was entirely unsupported by the evidence at Conrad Black's trial. There was also no evidence that Black was aware of the ongoing grand jury investigation when he removed the boxes.
The initial contact from the SEC lawyer about a future document production request was sent by e-mail one day before Black removed the thirteen boxes from his office in Toronto.
The e-mail was received by one of Black's attorneys in Washington, D.C. She advised her supervisor at her law firm of the SEC notice as well as another U.S. based lawyer who had formerly worked for Black on the SEC file.
There was important testimony from the three lawyers at Conrad Black's trial that strongly favoured his defence on the obstruction of justice charge. They indicated that they couldn't relate or recall a single in-person conversation, telephone call, or e-mail with Conrad Black advising him of the notification from the SEC.
Conrad Black's mail fraud conviction resulted from a transaction where a non-competition agreement wasn't drafted for a $600,000 payment.
Miguel Estrada argued on appeal that the jury could have found that the failure to secure a written agreement in place for the payment was an accidental oversight and not a theft. Following the honest services theory that the U.S. Supreme Court had ruled in Black's case was an illegal theory, the jury could have reasonably concluded that the failure to inform the board of directors prior to approving the payment was a breach of a fiduciary duty, and convicted on that basis.
In his opinion for the Court of Appeals, Judge Richard Posner found compelling evidence of a "plain vanilla" pecuniary fraud. He dismissed the possibility that the jury convicted Conrad Black because of the failure to disclose the payments to the board.
Judge Posner presumed in his opinion to be certain of the path the jury took to find Black guilty despite the fact that the government argued for conviction on a non-disclosure theory and it was clearly part of the jury instruction to convict on that theory. How could Judge Posner possibly know that the jury didn't convict on an improper basis?
Fact finding is the province of the jury and not an appellate court.
Conrad Black has served his sentence of approximately three years in federal prison. His appeals have been exhausted and he has entered Canada to start a new phase of his life. The criminal case against him in the U.S. was largely reduced to a hollow shell. A couple of dubious convictions remain to blot his record.
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