Federal Judiciary

U.S. opposes bail for Conrad Black

By Akin Gump Supreme Court Practice Group

UPDATE 3:55 p.m.  Neither Justice Stevens nor the full Court is expected to act on the bail issue until midweek next week at the earliest. Conrad Black’s attorneys asked and received permission from Stevens to file a reply to the government; it is due by noon Wednesday.

—————–

The federal government urged the Supreme Court on Friday not to order the release from prison of media mogul Conrad M. Black, but suggested he might be allowed to try for bail from the federal judge who conduct his trial.  If Justice John Paul Stevens, who has the bail plea now, or the full Court rejects the application, that could be done with the understanding he could make the same plea in District Court, U.S. Solicitor General Elena Kagan suggested.  The opposition to the application (08A1063) can be found here.

Black, a Canadian who led a group of newspapers in the U.S. and elsewhere, was convicted of mail fraud for an alleged scheme to obtain illegal executive compensation. He was also convicted of obstructing justice for concealing documents that the Securities and Exchange Commission and federal prosecutors sought in an investigation.  He was sentenced to 60 months for the mail fraud counts and 78 months for obstruction of justice.  The sentences are to be served together, thus his term is for 78 months.

On May 18, the Supreme Court agreed to hear Black’s challenge to the mail fraud conviction.  His attorneys claim that he was prosecuted for fraud, based on the alleged denial of “honest services,” but that federal law does not make that a crime if the challenge scheme did not result in any harm to the supposed target of the fraud — in this case, the company that paid Black management fees. 

The Court will not rule on Black’s case until the Term that starts next Oct. 5, but Black’s lawyers sought his release in the meantime.  One of their key arguments is that, if the Court overturns the fraud conviction, that will also undercut the rest of his conviction, especially the one for obstruction of justice.  The result would be that he would be resentenced to a reduced term, shorter than the time it would take the Court to decide his case, so he should not remain imprisoned based on the longer sentence.

Solicitor General Kagan challenged that argument.  If the fraud convictions are overturned by the Supreme Court, the reply brief said, that would leave the obstruction conviction intact.  Black, it added, had not shown that any resentencing would result in a shorter sentence.

“In any event,” the brief said, “if this Court had any doubt about the length of the sentence applicant would receive on an obstruction conviction alone, the Court should not itself speculate about the likely sentence but should deny the application for bail with leave to re-file in the district court, which has not yet had the opportunity to address that issue.”

Kagan sought to counter another of Black’s arguments: that the government had no justification for agreeing to bail to another executive convicted along with him, while opposing it for Black.  The Solicitor General said the difference was that the other executive was not convicted of obstructing justice.

Full post as published by SCOTUSBLOG on June 05, 2009 (boomark / email).