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Black applies to Supreme Court for bail

From Friday's Globe and Mail

Washington — Conrad Black has asked to be released on bail while the Supreme Court of the United States reviews his conviction for fraud.

Lord Black's lawyer, Miguel Estrada, filed the request with the Supreme Court Thursday arguing that Lord Black is not a flight risk. “There was no dispute in the district court or the court of appeals that Mr. Black is unlikely to flee,” Mr. Estrada wrote in his submission to the court.

“He understands that if he is released on bail and does not prevail in his appeal, the completion of his sentence will have been delayed by several months. He is willing to take the chance of prolonging his punishment, though, because if he does prevail then the time he will have spent in prison between now and such a ruling can never be returned to him.”

Lord Black and three other former executives of Chicago-based Hollinger International Inc. were convicted of fraud in 2007 over the misappropriation of more than $6-million (U.S.). Lord Black also was convicted of obstruction of justice and sentenced to 78 months in prison.

He began serving his sentence a year ago in Florida.

Lord Black's bail request came hours after a Chicago judge released co-defendant John Boultbee on $500,000 bail. Mr. Boultbee had been sentenced to 27 months and began serving his time last July. He had been allowed free on bail last year when the defendants first appealed their convictions to an appeal court in Chicago. The appeals were dismissed.

In his submission, Mr. Estrada said the “only difference between the two petitioners – Mr. Black's conviction of a single count of obstruction of justice – is no reason for a different result. … A sentence on the obstruction count, without more, likely would be only 15 months, and with statutory credit for ‘good time' Mr. Black has already served a sentence of nearly 18 months. He is entitled to bail pending appeal.”

Lord Black's request for bail was expected, but many legal experts have questioned whether he will succeed. That's mainly because the Supreme Court review is focusing on issues surrounding the fraud convictions and not the obstruction charge.

The court is reviewing how prosecutors apply what is known as the “honest services” section in the fraud statutes.

The section has been used frequently in recent years by federal prosecutors to file criminal charges in corporate fraud cases, including Enron Corp. and Hollinger International Inc. But many lawyers and judges say it has never been properly defined.

Some judges have found that while executives may have deprived their employers of their honest services, the misconduct was not criminal but a matter for civil courts. However, other appeal courts, including the judges in the Hollinger case, have upheld convictions based on the theory.

“There is no doubt that [Mr. Black and the others] received money from [a Hollinger subsidiary] and very little doubt that they deprived Hollinger of their honest services,” the appeal court ruled.

The Supreme Court could reverse the convictions and remand the case back to Chicago for a retrial. It could also issue a ruling that clarified the law but still upheld the convictions against Lord Black and the others.

The court is not expected to hear arguments until later this year, and a ruling is likely around June, 2010.

One other defendant in the case, Mark Kipnis, did not receive jail time. The fourth, Peter Atkinson, opted not to join the Supreme Court appeal. He received a 24-month prison term.

With a report from The Canadian Press

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