Monday, December 10, 2007

Pending The Appeal, The Comeuppance: Sentences

- Conrad Black has been sentenced to 6 1/2 years in jail, with 2 subsequent years of supervised release, and a $125,000 fine with $6.1 million in forfeiture. He must report to jail, at last word a Florida prison camp, by March 3rd.

- Peter Atkinson has been sentenced to 2 years and fined $3000, according to BNN's Kim Parlee. Steven Maich adds that Mr. Atkinson is also subject to three years of probation afterwards, and that the sentence was below the amount specified in the sentencing guidelines.

- Jack Boultbee has been sentenced to 27 months in jail and 3 years' probation, as well as $152,000 in fines and forfeitures. Sources: Steven Maich and Romina Maurino.

- Mark Kipnis is going straight to parole after 275 hours' worth of community service, with no fine at all, according to Mr. Maich. He faces six months' worth of home detention, as well as five years' worth of probation.


The announcement of the sentences brings this blog to an end for me; from now on, it'll be moribund. Thanks for reading it.

If you want to keep track of the Conrad Black trial subsequently, the following link will take you to Google News, with keywords "Conrad Black trial."

The Sentencing...The Forthcoming Appeal, And The Rest Of The Sentences

On CTV NewsNet, Jacob Frenkel and Paula Todd both concurred that it would be reasonable to expect the prosecution to appeal the sentence. Csr. Frenkel noted that the prosecution could argue that the tougher 2007 sentencing guidelines should have been used.

Andrew L. Frey, one of Conrad's appeal lawyers, said that he was disappointed in the sentence, but that there are good chances for Conrad's appeal. One ground, with respect to the obstruction-of-justice charge, was that the prosecution's case for intent was quite flimsy given Conrad's overall co-operativeness with the SEC. As far as the fraud charges were concerned, the evidence indicates that Conrad acted (though for his own benefit) in good faith; he didn't know that the non-compete payment to him could be illegal because David Radler told him differently. Thus, the ostrich instruction doesn't apply, as wilful blindness implies clear sight of a crime was reasonably available. If Conrad had bad advice, then he couldn't have reasonably been expected to see any possible illegality. He added that the case against Conrad was "a weak case," and estimated that an appeal will take 8 months to a year. He also said that the bail issue, given the appeal, has yet to be settled definitively. Ms. Todd added afterwards that Csr. Frey is planning to argue that the considerations he mentioned imply that the ostrich instruction should not have been included.

Conrad's lead co-counsel, Edward Genson, was also interviewed while Csr. Frey was in the middle of his own statement. He noted that it was an interesting trial for him, complimented Judge St. Eve, and also noted that the appeal is up to the appeal lawyers. As of 2:57 PM ET, Conrad's other lead co-counsel, Eddie Greenspan, noted that Judge St. Eve took the lower side of the sentencing guidelines. He also said that that outcome, though disappointing, was far less than what it could have been. He also expressed some disappointment regarding the pre-planning element of the sentencing, saying that even the prosecution all-but gave up on it in trial. He also noted that even the prosecution implicitly conceded that the Breeden Report was largely bombast with respect to its figures, and that the 5.3 million amount implied by the verdict was miniscule by comparison. In addition, he disclaimed blame for the guilty verdict, stating that the zealouness of the prosecution, and complications which got by the jury, were impossible for him to control.

Continuing his interview, with BNN's Amanda Lang, he noted that it was not a victory if Conrad is in fact innocent. Conrad himself left with his family as of 3:10 PM ET. He didn't look that crestfallen (although his daughter Alana did.) In a statement to the press he said that "it speaks for itself." [I had a different version earlier, based upon a mishearing of mine.] That was all that he said. Later, BNN host Martin Cej said that the 2 years of post-prison release that Conrad got was supervised release.

Jeffrey Steinbech, Conrad's chief sentencing counsel, said on CTV NewsNet as of 3:18 PM ET that Conrad being put into Eglin prison camp is not a fait accompli. The decision is up to the Bureau of Prisons.

As of 3:23 PM ET, Patrick J. Fitzgerald was interviewed. He disclosed the identity of the person who supplied the shareholder-victim statement: Mr. Fox of Cardinal. (Mr. Fox dumped most of the remaining Hollinger International shares held by Cardinal close to the point where it bottomed earlier this year, although on an upspurt if I recall correctly. Mark Steyn noted that Mr. Fox showed up in person.) He also claimed that the outcome wasn't a failure in his eyes. He refused to comment about the shrinkage of the number of dollars that Conrad was culpable for, and about any appeals. He also said that the use of the ostrich instruction was, in his eyes, justified.

Ms. Lang's interview with Csr. Frey, broadcast on CTV Newsnet as of 3:41 PM ET, had him saying that the events of this day have changed nothing regarding the appeal. He repeated his contention that the use of the ostrich instruction as not warranted, and that the prosecution failed to prove intent. He also added that an inappropriate use of the instruction could prejudice the jury against the defense, and brought up the fact that the only court order extant at the time Conrad carried out the boxes was an Ontario, Canada one. He was never prosecuted for violating it, either. Csr. Frey also disclosed that Conrad is not embittered with respect to America proper, but has been disappointed by the American justice system. After that interview, as of 3:48 PM ET, Ms. Todd sugggested that the difficulty that the prosecutors had in getting access to those boxes was the fount of the obstruction-of-justice charge. She also said flatly that a Canadian court's decision regarding that order is irrelevant to the U.S. justice system (naturally, because Canada and the U.S. are different countries with two different justice systems.)

At 4:03 PM, Mr. Akin supplied a kind of closure to the case, noting that it's the last high-profile corporate-fraud case that the United States Attourney's Office is pursuing. Perhaps it's the end of this trend.

As of now, there's been no word about the sentences that the other three defendants received, although Maclean's blogger Stephen Maich has some information from his own liveblogging. One of the pieces of info there is Conrad's total score on the sentencing chart: 28. Peter Atkinson scored a 22.

A printed report on Conrad Black's sentencing, by Romina Maurino, has been webbed by 680 News. She concurs with Mr. Akin about this case being the last one of its kind on the horizon. Paul Waldie has written another webbed report for the Globe and Mail.

And, Mark Steyn is also back on the beat,

The Sentencing...The Statements and the Sentence

David Akin, on CTV NewsNet, is reporting on the victim-impact statements. One was from an institutional investor, who cliamed that Conrad jerked him around and lied to him to boot. Right after, Paula Todd noted that Conrad is walking a fine line: he can't veer from "my appeal is pending" to "I was hoosegowed."

[Historical note: In the Scopes trial, John Scopes was actually found guilty. The play based on it, Inherit the Wind, implicitly made the point that the judge basically had to find him guilty, given the relevant law at the time.]

As of 1:48 PM ET, Mr. Akin speculated that Conrad's defense counsel has recommended to Conrad that he keep it short. Three minutes later, James Morton suggested that Conrad's best bet is to stress his respect for the court system while disagreeing with the outcome in his case.

Conrad Black began speaking as of 1:53 PM ET. He did in fact stress that he never maligned either the judge or the jury, nor the system. The start-off was his averment that he does not wish to re-try the case. He finished with a "very profound apology" to the shareholders, expresed regret for his conduct, and complimented the judge. His speech lasted about a minute. Ms. Todd said that "he did exactly what he should have done." The judge is now saying that Conrad had committed a serious offense, but he has no record of prior convictions. Joan Crockatt, as of 1:57 PM ET, expressed surprise at Conrad's brevity.

According to Mr. Akin, right at that point, the judge also noted that Conrad's charitable activities does mean something, including the giving from corporate funds, and that her sentence will "promote respect for the law." It must "deter others," as reported by Mr. Akin. The judge also said that Mr. Radler is at least as culpable, but is entitled to a lesser sentence because he copped a plea. His entitled Mr. Radler to a lesser sentence, but not to a "vast discrepancy."

The sentence has just been announced for Conrad: 78 months, or 6 1/2 years. The judge added that she couldn't understand how someone of his stature could have done what he did. The judge added a fine of US$125,000. She also added a forfeiture amount of $6.1 million. (The prosecution has ten days to appeal the sentence, as they may do because she could be considered to have been lenient.) In addition, Conrad faces two years of unsupervised release subsequent to the sentence. He may be deported from the U.S. as a result of that release addition, according to Mr. Akin. The prosecution wanted 25 years; the defense wanted the same sentence that David Radler got. The bail matter has not been decided on yet.

Subsequent to the announcement, Mr. Akin reported that Conrad had prepared a 5,000-word statement, but declined to give it. Judge St. Eve thanked him for his compliment. As of 2:11 PM ET, Conrad's lawyers are arguing over the forfeiture amount. Long-time trial observer Hugh Totten said that Conrad got a good deal today, and that Conrad had little to gain through making a long statement. Csr. Totten also noted that Conrad hired the same lawyer who got Frank Quattrone off from an obstruction-of-justice charge at the appeal level. As of 2:15 PM ET, Mr. Akin reported that Conrad's lawyers are arging that he rates bail, and Csr. Totten noted that their arguments are not going to take an unexpected turn. After Csr. Totten was finished, Jacob Frenkel commented that the Quattrone case was quite different: the appeal worked because of errors of procedure committed by the trial judge. None were evident in this trial.

Conrad was denied bail. He is obliged to show up at the Eglin, Florida Penitentiary as of March 3rd. It's a lower-security penitentiary. Later, Ms. Crockatt mentioned the possibility of a Presidential pardon, but noted that it would most likely come when President Bush steps down as of Jan. 2009.

Formally, according to Wikipedia, Eglin Pen is "Federal Prison Camp,... Eglin, Florida." Informally, at least according to this blog, it's one of the "Club Fed"s.

As of 2:31 PM, Ms. Todd noted that one of Conrad's appelate lawyers will be Alan Dershowitz. Csr. Frenkel subsequently noted that the ambiguities of interpretation regarding "deprivation of honest services" may eventually arrive at the doorstep of the Supreme Court of the United States.

After he was finished, Ms. Todd reported on an unexpected - perhaps unprecedented - discussion amongst Conrad's fellow Lords in the U.K.: some have suggested that Conrad be stripped of his baronial title.

The Sentence...Preliminaries

According to CTV NewsNet, Conrad Black has arrived at the courthouse, with his wife and daughter. He didn't say anything as he went in. Word is, his speech to the judge will be "brief," but such a term is hard to quantify in the case of Conrad Black.

Word is, Judge St. Eve has already decided on a sentence. After Conrad Black is sentenced, the other three will be too. It's almost a certainty that they'll all appeal. Bail, though, is questionable. According to Steve Skurka, bail requires a "substantial likelihood" that the appeal will succeed. According to his sources, this case doesn't meet that burden.

Paula Todd, also on CTV NewsNet, mentions that a victim-impact statement has been filed, although it is expected that the defense will argue that they haven't had sufficient time to read it.

CTV News has a webbed report on the day's events so far. At 11:02 AM ET, Jacob Frenkel speculated that the victim-impact statement wont' have much of an effect on the sentence, because (he presumes) the judge will remember that no victims appeared at trial.

According to BNN's Amanda Lang, the victim-impact statement - handed in late - will be dealt with first. The hearing, even not taking into account Conrad's speech, may take a few hours. She concurred that the important question that will be answered is whether or not Conrad rates bail.

BNN also had old Conrad Black biographer Peter C. Newman on. Mr. Newman speculated that Conrad's previous statement against the prosecutors will go against him, as will that consent decree. What he's watching for in any expression of remorse, or of at least regret. Pat Bolland point out that Conrad could offer to pay back something to Hollinger Int'l, which Mr. Newman said would help but not much. It may be too late for that. Mr. Newman also observed that David Radler's tactics were better than Conrad's. At the end of his segment, Mr. Newman pointed out that "you can't take the law into your own hands" when comparing Conrad Black with Robert Latimer. (Interestingly, that phrase is commonly applied to lynch mobs, not to outraged defendants.)

Back at CTV News, it was reported that the loss has been set at between 5 and 10 million dollars, meaning that the top sentence will not be applicable. Also, Conrad Black has never been convicted of a previous offense. Two levels in the sentencing count may have been added for "more than minimal planning." This suggests category A, for those not convicted of a previous offesne, level 22 (if more than minimal planning is added) or 23 (if the recently-proffered statement was accepted as an influence.) It wasn't said what sentence this point in the chart corresponds to.

David Akin reported that two levels were added to the base level of 20. One was added because Conrad was operating in Canada, implying that the pre-planning consideration has not been decided on yet. Maximum sentence is 35 years.

As of 11:31 AM ET, Eric Sussman is urging Judge St. Eve apply a serious sentence, through using the now-notorious E-mails. Csr. Skurka noted that the E-mails are not relevant to the charges that the jury voted "guilty" on.

Kate Wheeler just reported, at 11:35 AM ET, that the judge has ruled against the prosecutors with respect to their claim of the level of the fraud - it's going to be between 5 and 10 million. Also, she ruled that Csr. Sussman is bringing in points that should have been brought up at trial. According to Andrew Stoltmann, the prosecution needs a big sentence to consider it a win for them. (Later, Joan Crockatt noted that the Breeden Report did a lot more damage to her as a shareholder that Conrad Black did. She then compared, perhaps tongue in cheek, Richard Breeden to Lt. William Calley.)

The prosecution did win agreement from Judge St. Eve about the pre-planning issue. This adds two ticks on the chart. Also, the judge earlier rejected a delay for the defense to respond to the proffered victim-impact statement. She did, though, agree to use the less harsh 2000 sentence guidelines. As of 11:49 AM ET, Ms. Wheeler reported that the judge remarked that the civil cases pending against Conrad Black are irrelevant to this matter, and vice-versa.

As of 11:51 AM ET, Mr. Akin reported that Judge St. Eve noted that Mr. Radler swung a lot of authority himself, and Conrad's position as CEO did not mean that he knew of everything. But, she also decided that his role was more than minor.

As of 11:56 AM: Judge St. Eve has set the sentence range as between 6 and 8 years after going through the above-mentioned chart. Conrad is facing that amount of time, and will have to serve 85% of it. Ms. Todd noted later that this 6-to-8 years is a guideline, but Csr. Frenkel noted that, say, 7 years is less serious that what the prosecution was expecting. He also said that the prosecution can appeal the sentence as being too light. He also wondered out loud if the prosectution is taking some of this personally, as they did win a conviction.

According to Mr. Akin, as of 12:04 PM, the defense is arguing that Conrad Black is more than a mere top manager, as he built the company from the ground up. They also noted that his employees liked him well, and that there was a real business - not just a "shell game." He also noted that the present Conservative government has rejected all pleas from Canadians convicted in foreign courts to serve their time in Canada under Canadian rules. That's because, as Ms. Todd noted later, they've decided that a Canadian who got due process rights in another democratic country has no pressing need for repatriation. She also noted that Conrad is no longer a Canadian citizen.

David Akin reported that, with regard to the obstruction-of-justice charge, Edward Greenspan is arguing that Conrad was just reclaiming his personal property. He returned it later. [Note: This obstruction charge is over and above the 6-to-8 years noted above.] Ms. Crockatt noted that Conrad's "defiance" is largely in place to square with his appeal.

Mr. Akin also noted, as of 12:18 PM ET, that the defense has brought in the Rick Mercer show sketch in which Conrad appeared as evidence that he has a sense of humor. Also, the usual philanthropic arguments were made - and the defense has read a letter from Sir Elton John defending Conrad's character. (Ms. Todd later speculated that Conrad's attempt to appeal to the Caandian public may have ticked off Americans.)

Another letter read in court was from Laura Ingram, a cancer survivor. Also brought to the judge's notice was Conrad's support of Jewish causes. Yet another letter was sent in by Brian Mulroney, and read in court. A further letter read in court was from someone unknown who got a ride from Conrad Black when he was feeling ill.

On CBC News, Jacquie McNish noted that it would be untoward for Conrad to make a long statement, and opined that Conrad believes that he was persecuted because he has inadequate self-questioning skills. Ms. McNish further noted that Conrad identifies with famous people who have been stricken in some way. She also believes that he'll get through prison by writing. ( has a written report on the sentencing guideline arrived at.)

Over at CTV News, Ms. Todd noted that Conrad is insinuating blame again - seemingly, regarding the bad press he had received - and the judge has noted that he seems to be avoiding responsibility for his own actions. Like others, Ms. Todd counterpointed Conrad Black with Martha Stewart. As of 12:44 PM ET, Mr. Akin reported that the defense is stressing Conrad's "humble beginnings." Csr. Frenkel noted four minutes later that these readings are par for the course at this stage in the game.

As of 12:55 PM ET, Ms. Crockatt noted that Barbara had claimed her 'extravagance knows no bounds' remark was meant as a joke, but considers that explanation to not be that credible - that Barbara had intended at the time to come up with a striking quote at the time, and that it blew back on her. Mr. Akin made a side note that Conrad's "extraordinary life" is being made evident in those character letters.

As of 1:05 PM ET, Mr. Akin remarked that the prosecution set up a "war room" in which all of Conrad's defiant remarks to the media were posted. Csr. Sussman has just tried to bring those remarks into the sentencing hearing, claiming that Conrad has showed "open contempt" for the process and that he was nefarious enough to defraud people he knew. He also claimed that Sir Elton doesn't know Conrad all that well (suggesting that Sir Elton was asked to dash off a letter and did so as an act of charity.) Mr. Akin added later that Sir Elton's mention of Conrad's charitable nature was based upon Conrad using corporate funds to make a donation. Csr. Frenkel noted that the open-contempt point may resonate with Judge St. Eve, as she used to be a prosecutor, but she hasn't shown any signs that she is pro-prosecution.

Ms. Todd noted that the decision in the 1982 SEC matter, which she read, contained a very definite warning to Conrad to steer clear of the American justice system. Csr. Frenkel noted, though, that the 1982 matter was at the civil level. Thus, it's not relevant to this matter, but may very well be relevant to further civil proceedings. Later, Ms. Todd noted that the judge is trying to be moderate so as to avoid having her decisions overturned in an appeals court. As of 1:16 PM ET, Mr. Akin reported that the procesution is trying to debunk the picture presented by the defense. They're also hammering away at the lack-of-remorse factor.

As of 1:21 PM ET, David Morton noted that the use of the sentencing guidelines makes the sentencing decision "bullet-proof" at the appeals level (from both sides.) The court is on break as of 1:25 PM ET. During that break, Ms. Crockatt made the point that Hollinger shares were undervalued because of the "Conrad Black factor" - to be specific, because Conrad was too frenetic a deal-maker and cut too many complicated deals. The analysts have difficulty figuring out what he was up to at any point in time.

Saturday, December 8, 2007

As The Sentencing Day Approaches...

...the prosecution has filed a report asking the book be thrown at Conrad Black. The reason, as stated in a 680 News business report, won't surprise veteran trial-watchers that much:

"Conrad Black's lack of remorse following his conviction for fraud and obstruction of justice should be factored into next week's sentencing and possibly result in a harsher punishment, U.S. prosecutors said.

"'To this day, Black maintains his offences of conviction were "rubbish" and "nonsense," and that the criminal justice system is "essentially a substitute for a wealth-redistribution policy,""' lead prosecutor Eric Sussman said in a court filing late Monday.

"'Black insists he did "absolutely nothing" wrong and that he has been 'unjustly convicted.' Indeed, Black's conduct makes clear that he would engage in the very same conduct again if given the opportunity.'"...


In fact, a later report by Romina Maurino, webbed by the Globe and Mail, confirms what the prosecution has called his "lack of remorse:"

"Conrad Black will not back down, nor will he apologize...."

Friday, November 9, 2007

The Sentencing-Delay Matter

According to a CBC News report, Conrad Black's lawyers have asked for a delay of the sentencing, scheduled for November 30th, so as to have more time to reply to a prosecution pre-sentencing report. The report estimates that sentencing will take place in mid-December if such an extension is granted.


It has been granted, but the extension was shorter than anticipated. The date of sentencing has been pushed back to December 10, according to a followup report posted at "'I can accommodate that week,'." St. Eve said, according to a report."

Monday, November 5, 2007

Rule 29 Motions Turned Down (Except On One Count)

According to this CBC News report, Judge St. Eve has dismissed a ruling for a new trial, and evidently ruled that none of the charges, except one against Mark Kipnis, should be thrown out. Mr. Kipnis got acquitted of one mail-fraud charge. The report, which was a re-webbing of an Associated Press story by Mike Robinson, didn't specify whether or not Judge St. Eve specifically ruled on the 29s, but the acquittal suggests that she did. This report by Ameet Sachdev of the Chicago Tribune suggests more strongly that the judge did in fact rule on the 29s as well as requests for re-trial. So, the only hope for Conrad and the others for re-trial or more acquittals is in the appeals they have in the works.

Tuesday, October 23, 2007

Juror Interview On CBC News

A report from CBC News outlines what one juror said about the deliberations, and why they were contentious: she herself stuck to the belief that Conrad Black was largely not guilty. According to the juror, postal worker Jean Kelly, nine out of the twelve jurors wanted to convict Conrad on all thirteen charges, and she held them back because she couldn't find criminal intent. "As days wore on, Kelly said the jurors, who deliberated for 16 days, were furious at her and two other jurors for holding out reaching a unanimous verdict...."

She also said that the evidence she was looking for to sway the rest of the jury was contained in the footnotes of a document. "The evidence was never presented by Black's own lawyers, she said.

"After Kelly made her case, the jurors changed their position from an original vote to convict on all charges to guilty on four charges."

Tuesday, August 28, 2007

New Motion

According to this CBC report, Conrad Black has asked for a mistrial or an acquittal. It doesn't specify which judge this was asked of. A Bloomberg report quotes some of the words therein.

A more detailed report on this new development is at, which also notes that the motion is being considered by Judge St. Eve herself. It has some excerpts from post-trial interviews from two jurors. Romina Maurino also has a report giving reactions from several experts, who all conclude that the motion has little chance of succeeding. Ms. Maurino's report also notes that this motion is actually one of two, the other being a motion for plain acquittal, and that each defendant has filed a similar motion. The prosecution has until September 17th to respond.

Wednesday, August 15, 2007

Result of the Second Custody Hearing

According to CTV NewsNet, Judge St. Eve has ruled that Conrad Black cannot go back to Canada. The original conditions imposed upon him in the first custody hearing stand, as well as the freedoms he had gotten. She did stipulate that she may change her mind if Conrad can scrape up more money for bail - in fact, the reason why she let her earlier decision stand was Conrad's refusal, or inability, to put up more bail money.

The Toronto Star has webbed a brief written report on the decision that also includes the name of Conrad Black's lead appeal lawyer. A more detailed one, by Theresa Tedesco, has been webbed by the National Post. It quotes Judge St. Eve as saying in her decision: "'With no additional assets and the uncertainty of the extradition process, I am not convinced that you have met your burden.'"

Some details on the arguments used by each side are in this Bloomberg report, written by Andrew Harris, as there are in this detailed Reuters report by Andrew Stern.

Also, Susan Berger has a report on the second hearing that's been webbed by CBC News.

More news reports can be found through Google News.