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Hard time even more so for Lord Black

British citizenship means he's ineligible for minimum security

From Wednesday's Globe and Mail

Jail will be tough enough for Conrad Black, but court filings suggest it will be even more difficult because he isn't an American citizen.

Non-citizens are not eligible to serve time in minimum-security prisons and they are barred from some prison programs including early release to halfway houses. Instead, once their term is up, foreigners are sent to immigration detention centres to await deportation. That can take weeks, if not months.

Those restrictions, and others, surfaced in recent court filings as Lord Black and three other former executives of Hollinger International Inc. prepare to be sentenced in Chicago next week. All four have been convicted of fraud for diverting millions of dollars from the Chicago-based company. Lord Black has also been convicted of obstruction of justice. They all plan to appeal.

Lawyers for defendants John Boultbee and Peter Atkinson, who are Canadians, argued that the men should receive a lower jail sentence because of the hardships foreigners face in the U.S. prison system.

Mr. Boultbee's lawyers said he will "suffer serious and onerous consequences" because of his nationality.

Legal experts say Lord Black, who is British, is in the same position (one defendant, Mark Kipnis, is American).

Once they are sentenced, assuming they get jail sentences, Lord Black and the others will be put into the hands of the U.S. Bureau of Prisons, or BOP, which operates federal jails in the United States.

The BOP has four types of facilities: minimum security, low security, medium security and high security. Minimum security prisons, also called federal prison camps, have limited or no fencing and inmates live in dormitories.

Because of their citizenship, the best Lord Black and the other two can hope for is to be placed in a "low security" venue, court filings said.

According to the BOP, those prisons have "double-fenced perimeters, mostly dormitory or cubicle housing, and strong work and program components."

Once inside, the men will be restricted from some programs. For example, a presentencing report noted that Mr. Boultbee has an alcohol-abuse problem but his lawyers argued that because he is a foreigner, he will be ineligible for the BOP's residential drug-abuse program.

Inmates can earn up to a year off their sentence by successfully completing the nine-month program.

The men also won't be eligible for release to a halfway house as their sentences wind down, the filings added.

Typically, inmates serve 85 per cent of their sentence and are sent to halfway houses for the final six months of their term.

When their sentences end, Lord Black and the others will head to a U.S. Immigration and Custom Enforcement detention facility, where they will await deportation.

They could ask the BOP to be transferred to a jail in Canada or Britain, but Mr. Boultbee's lawyers pointed out that they can't apply for a transfer while their appeal is pending or until they have paid all fines and restitution. Prosecutors are seeking as much as $16-million (U.S.) in total restitution.

It's unlikely Lord Black and the others will head to jail immediately after sentencing on Monday. Most experts say they will be given a date to report to jail, likely in January.

However, it's unclear whether the judge will let them remain free on bail while they appeal, which could take a year.

"It's extremely unusual for them to be out on bail pending appeal," said Hugh Totten, a Chicago lawyer. "I've only seen it once in the last few years."

Rebekah Poston, a former prosecutor who is now a white-collar criminal defence attorney in Miami, disagreed. "A lot of times in white-collar cases, unless [the crime] is egregious, they are usually out on bail."

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