By Theresa Tedesco
Chief Business Corespondent
CHICAGO – Having exhausted all avenues of appeals afforded by the U.S. justice system, Conrad Black will stand before a Chicago judge Friday, likely for the last time, to try to secure a victory in the only campaign he’s had any success during his protracted legal war with the American government — the battle of attrition.
Today, Lord Black, 66, returns to Judge St. Eve’s courtroom in the Everett McKinley Dirksen Federal courthouse, where the trial judge will mete out a new punishment for his diminished slate of convictions. It is widely expected to be a more lenient sentence than the 78-month prison term in a U.S. federal minimum-security penitentiary in Florida, where she dispatched him in March, 2008.
Still, it won’t be the complete vindication he sought — and promised — since his legal ordeal began six years ago. Instead, in the wake of a partial victory at the U.S. Court of Appeals for the Seventh Circuit, the former international press baron now faces the stark prospect of returning to prison for a shorter stint, or deportation from the United States.
“This was going to be the capstone for this U.S. Attorney’s office efforts to fight white-collar crime. And instead of the big bang, this is a case that is hanging on by its fingernails on the fraud charges,” observed Hugh Totten, a Chicago-based criminal lawyer who monitored the case closely.
Given that U.S. prosecutors originally sought a jail term of between 24 to 35 years after his 2007 convictions on three counts of mail and wire fraud and one count of obstruction of justice – he wound up with 6½ years – it would seem reasonable to anticipate the federal judge won’t likely force Lord Black back to the Coleman Federal Correctional Complex to complete his term, as the U.S. government has strenuously urged.
Rather, some legal experts expect Judge St. Eve, who presided over the four-month criminal trial, to follow the guidelines set out in a pre-sentencing report by the U.S. Probation department, which recommends a term of between 33 to 41 months. If that happens, Lord Black can claim victory, since his lawyers have argued for time served based on the 29 months he’s already served plus a three-month credit for good behaviour.
“No way he’s going back to jail with that PSR [pre-sentencing report],” predicts Jacob S. Frenkel, a criminal lawyer and former U.S. attorney based in Potomac, MD. “There will be a lot of posturing and bluster, which will have no effect on the judge. The bottom line is that she has made up her mind and the hearing is to go through the motions to give him credit for time served and wrap this thing up as far as the court is concerned.”
Others, such as Chicago lawyer Andrew Stoltmann, disagree: “Conrad Black is heading back to serve the entirety of the rest of his term,” he wrote in an e-mail. “While U.S. District Judge Amy St. Eve has some discretion in overturning the ruling, Black has many factors working against him.”
Most expect there will be passionate arguments before the judge, but few surprises. Sentencing hearings are generally brief because most of the reasonings have been laid out in court submissions filed by both sides weeks ago.
If Judge St. Eve decides to release Lord Black from prison for time served, as his lawyers have requested, she could still attach any number of conditions, including probation time and fines.
In that case, the Canadian-born media baron who famously relinquished his Canadian citizenship to become a British peer in 2001, would be arrested by the U.S. Immigration department and become subject to deportation proceeding.
At that time, Lord Black would apply to enter Canada on a temporary resident permit because his criminal record would render him inadmissible for entry into Canada.
He said during a television interview in 2006 that he “always” intended to “take my citizenship back,” adding that “if it wasn’t for all these legal problems, I would have done it by now.”
However, if Canada were to deny his request for a temporary resident permit, Lord Black would likely be deported by the U.S. government to Britain, where he has citizenship although he hasn’t lived in Britain in almost eight years.
The former international press baron’s residency status was complicated further last October when the lower appeals court refused to set aside one of this three fraud convictions involving a $600,000 payment and upheld the guilty verdict on obstruction of justice.
The lower appeals court heard the case after the U.S. Supreme Court cast doubt on his fraud convictions in June, 2010 because they were based on the controversial honest services statute. However, the top court deferred to the lower appeals court in Chicago to determine whether Lord Black’s convictions would be affected by the narrowed application of the honest services law, which applies when there are kickbacks and bribery involved.
A few months after the lower appeals court upheld two convictions, Lord Black sought a second appeal before the U.S. Supreme Court in February. However, on May 31 the high court refused to revisit his case, resulting in today’s resentencing hearing.
In court filings, U.S. prosecutors have practically begged Judge St. Eve to send Lord Black, who once controlled the world’s third largest English-language newspaper empire including the National Post, back to Coleman to complete his 78-month sentence noting his defiance and lack of remorse.
Even after acknowledging the former businessman was a model prisoner, prosecutors still attempted to portray him as a haughty inmate unworthy of release by filing contradictory testimony from Coleman prison staff alleging Lord Black “demanded special treatment” and was a lax tutor, even though the same employees described him as “not intimidating or condescending” and “always polite and respectful” in prison progress reports and to the probation officer.
The unflattering depictions of Lord Black outlined in the sworn testimony from prison staff “are not allegations Black will want hanging over his head going into the re-sentencing,” said Mr. Frenkel, because the Supreme Court noted that Lord Black’s behaviour while in prison and on bail could be factored into re-sentencing.
For his part, Lord Black refuses to comment until after Judge St. Eve rules. However, it is likely he will address the court during today’s hearing, as he had in 2007 when he expressed “very profound regret and sadness” about the “severe hardship inflicated upon all of the shareholders, including a great many employees, by the evaporation of US$1.85-billion in shareholder value under my successors.” Lord Black was ousted from his role as chairman and chief executive at Hollinger International Inc., a Chicago-based publishing company, and replaced by new management at the behest of angry shareholders.
To support his case for a full release, there are 18 letters from former prison inmates and staff espousing Lord Black’s positive contributions to prison life.
The Montreal-born businessman, who was released on bond last July pending his appeals, and three other Hollinger International Inc. executives were convicted in 2007 of misappropriating US$6.1-million in the form of non-competition payments. Lord Black was also found guilty of obstruction of justice for removing 13 boxes from his Toronto head office during the U.S. government’s investigation in 2005.
National Post
ttedesco@nationalpost.com
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