TORONTO- Conrad Black is taking the fight to clear his name to the U.S.Supreme Court after a lower court denied his bid to get a new hearingon an appeal of fraud and obstruction convictions.
In a decision released Friday, a three-judge panel in Chicagounanimously rejected Black's request for a rehearing of his appeal.Black had requested the rehearing on the grounds that an October rulingfailed to properly apply a recent Supreme Court decision that narrowedthe scope of a law used to convict him.
"All the judges on theoriginal panel have voted to deny the petitions and none of the judgesin regular active service has requested a vote on the petitions forrehearing," the panel wrote in a ruling that did not give reasons forthe refusal.
But Black said he never expected the panel to agreeto re-hear his case and made the request as a formality en route to aSupreme Court petition.
"Obviously, this is the next step," Black said in an email to The Canadian Press.
"Giventhe arithmetic (six judges out of 10 with three already committed totheir own ruling), and the extreme animus of (Judge Richard) Posner, wenever thought there was the slightest chance of success, but had toproceed on this route to repetition the Supreme Court, whose previousruling Posner and his panel have effectively ignored," he said.
Twoof Black's three fraud convictions were overturned in October by a U.S.appeals court. It upheld one fraud conviction and one for obstructionof justice.
The appellate panel dismissed Black's argument thathis obstruction charges should be thrown out, calling an erroneousinstruction on the fraud charges irrelevant to the obstruction chargebecause it was considered separately.
Friday's ruling alsoapplies to Black's co-defendants — Peter Atkinson and John Boultbee,both Canadians and former executives of Hollinger, who received twoyears and 27 months of jail time respectively.
At the centre oftheir appeal is a Supreme Court ruling in June that narrowed theso-called "honest services" laws to include only cases centred onbribes or kickbacks and shouldn't have been used to help convict Blackbecause it did not apply in his case.
The now defunct "honestservices" legal argument has been used to convict politicians andcorporate executives, including Black and Jeffery Skilling, theex-chief executive of Enron.
The law had stipulated that U.S.citizens were entitled to honest services from government and privatecitizens, even when no-one suffered any loss. It holds that thedefinition of fraud includes a scheme to "deprive another of theintangible right of honest services."
It has been criticized bydefence lawyers for being vague and subjecting people to prosecutionfor mistakes and minor transgressions in the business and politicalworlds.
The fraud count that sticks relates to payments to Blackand his colleagues in connection with a sale of Hollinger communitynewspapers, and was upheld because the defendants admit that theyfailed to prepare legally binding contracts.
Black, who has beenfree on bail for several months pending the outcome of the appeal,could be now retried or sent back to prison, where he has alreadyserved 2 1/2 years of a 6 1/2-year sentence.
The former mediamagnate was not acquitted on the overturned counts but the appellatejudges did find an error "warranting — barely — a retrial," judgeRichard Posner wrote in the unanimous decision in October.
ButBlack's lawyer Miguel Estrada said Friday that Posner's opinion for thepanel did not "accurately reflect the facts, misapplied the test forharmless error review, is inconsistent with the Sixth Amendment, anddid not remotely respond adequately to the Supreme Court’sinstructions."
He said the panel "trivialized the strong defencecase and all but ignored the jury's rejection of any proof of a realcrime with the sweeping acquittals on most of the counts in theoriginal case."
"So we will ask the Supreme Court to take thecase up again so that it can again correct an erroneous ruling by thethree-judge panel that was assigned to Conrad Black's appeal."
Prosecutors said Friday have not yet determined whether they will retry Black on the convictions that were overturned.
Blackwill be now be resentenced on the upheld convictions relating to a 2007case in which he and several colleagues were convicted of defraudinginvestors of media company Hollinger International.