Toronto Conrad Black could spend less than five years in jail on fraud and obstruction of justice convictions if the judge follows recommendations from a court-commissioned report and ignores what his lawyer calls the prosecution's “insane request for a massive sentence.”
Andrew Frey, the New York lawyer handling Mr. Black's appeal, said Wednesday he was encouraged by the fact that the pre-sentence investigation report didn't back up “the government's insane request for a massive sentence.”
Prosecutors have asked for Mr. Black to serve between 24 and 30 years.
While Mr. Frey wouldn't discuss the range of sentencing range the defence would find appropriate, he said he hopes the judge “can use some common sense here and hopefully appreciate that this is not the crime of century — even though it's a highly celebrated case — and hopefully show some common sense in devising an appropriate sentence.”
Prosecution objections to the pre-sentence report suggest it recommends Mr. Black be sentenced to five to six years in jail, said Peter Henning, a law professor at Wayne State University and former U.S. Securities and Exchange Commission lawyer.
Mr. Henning called the report “very favourable.”
“Given what they were looking at, they got almost every break.”
Still, Mr. Frey said, whatever the sentence, the defence “will feel it's too much” and “still have some issues with some of the things” in the report and will file objections shortly.
Mr. Black's three co-defendants, Peter Atkinson, Jack Boultbee and Mark Kipnis, could spend as little as three years in jail. All four are to be sentenced Dec. 10.
Mr. Black wouldn't comment on the report, citing “a strong confidentiality order.”
“Counsel were satisfied,” he wrote in an e-mail to The Canadian Press.
Lawyers following the case said the defence objections will likely include a request to consider the amounts of money pocketed from the crime separately, as well as lower sentencing guidelines.
The report pegs the losses from the fraud scheme at Mr. Black's former company Hollinger International at $6.1-million (U.S.), while prosecutors allege Mr. Black and his co-defendants took part in a $32.15-million fraud. It also cast aside suggestions that Black was the ringleader of a sophisticated, cross-border scheme.
“It would not surprise me if they asked for a significant enough reduction to get the defendants down to either a split sentence or probation, or home confinement,” Mr. Henning said.
“Where they are now would still require them to serve a substantial portion of the term in a federal penitentiary.”
The report is a confidential, independent assessment by the probation officer and a document Judge Amy St. Eve will consider in handing down her sentence. She will also use the court's sentencing guidelines — a complex point system that considers factors such as a defendant's criminal record and whether he committed the crime using sophisticated means.
A judge doesn't have to abide by either document, but must take both into consideration.
Hugh Totten, a Chicago lawyer also following the case, said the real significance of the report is “that it provides a counterpoint to what the U.S. attorney's office is saying and perhaps it's going to give this judge a credible basis to lessen the sentence without explicitly rejecting what the prosecution is saying.”
“The prosecution has always been very aggressive in what is considered to be the evidence in this case and this probation report probably strikes, if not a middle ground, a ground that's a lot closer to what the defence has been contending all along,” Mr. Totten said.
One of the most important factors in determining the severity of any sentence will be whether Judge St. Eve chooses to apply the so-called 2000 sentencing guidelines, in effect at the time of the offence, or the 2007 guidelines, a harsher version currently in effect.
The use of the 2007 guidelines, as the prosecution suggests, could double the sentencing level for Mr. Black and the others, putting Mr. Black in the range of an eight to 12-year sentence.
Mr. Totten said he expects a sentence of between seven and 10 years for Mr. Black, but concedes it may be less if the PSI is as favourable to Mr. Black and the others as the objections suggest.
Ravelston Corp., the insolvent Canadian holding company at the centre of Mr. Black's former newspaper empire, was sentenced to a $7-million fine Wednesday and must pay $6-million in restitution for its part in the fraud.
The Toronto-based company had pleaded guilty in March to one count of fraud.
David Radler, Black's former business partner and the government's star witness, will be sentenced Dec. 17.