625 F.3d 386 (7th Cir. 2010), 07-4080, United States v. Black

Docket Nº:07-4080, 08-1030, 08-1072, 08-1106.
Citation:625 F.3d 386
Opinion Judge:POSNER, Circuit Judge.
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Conrad M. BLACK, Peter Y. Atkinson, John A. Boultbee, and Mark S. Kipnis, Defendants-Appellants.
Attorney:Julie B. Porter, Assistant U.S. Attorney, Edmond E-Min Chang (argued), Attorney, Office Of The United States Attorney, Chicago, IL, Edward N. Siskel, Attorney, Department of Justice, Office of The Deputy Attorney General, Washington, DC, for Plaintiff-Appellee. Miguel A. Estrada (argued), Attorne...
Judge Panel:Before POSNER, KANNE, and SYKES, Circuit Judges.
Case Date:October 29, 2010
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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625 F.3d 386 (7th Cir. 2010)

UNITED STATES of America, Plaintiff-Appellee,

v.

Conrad M. BLACK, Peter Y. Atkinson, John A. Boultbee, and Mark S. Kipnis, Defendants-Appellants.

Nos. 07-4080, 08-1030, 08-1072, 08-1106.

United States Court of Appeals, Seventh Circuit.

October 29, 2010

Argued Sept. 29, 2010.

Rehearing and Suggestion for Rehearing En Banc Denied Dec. 17, 2010.[*]

Page 387

Julie B. Porter, Assistant U.S. Attorney, Edmond E-Min Chang (argued), Attorney, Office Of The United States Attorney, Chicago, IL, Edward N. Siskel, Attorney, Department of Justice, Office of The Deputy

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Attorney General, Washington, DC, for Plaintiff-Appellee.

Miguel A. Estrada (argued), Attorney, Gibson, Dunn & Crutcher, Washington, DC, Michael S. Schachter, Attorney, Willkie Farr & Gallagher, New York, NY, Richard A. Greenberg, Attorney, Newman & Greenberg, New York, NY, Ronald S. Safer, Attorney, Schiff Hardin LLP, Chicago, IL, for Defendants-Appellants.

Before POSNER, KANNE, and SYKES, Circuit Judges.

POSNER, Circuit Judge.

This case is before us for the second time, the Supreme Court having vacated the judgment, which we had affirmed, and remanded the case to us for reconsideration. Black v. United States, __ U.S. __, 130 S.Ct. 2963, 177 L.Ed.2d 695 (2010).

The defendants-senior executives of Hollinger International-had been convicted by a jury of three counts of mail and wire fraud, in violation of 18 U.S. C. §§ 1341 and 1342, and defendant Black had also been convicted of obstruction of justice, in violation of 18 U.S. C. § 1512(c). The judge had sentenced Black to a total of 78 months in prison, Atkinson and Boultbee to 24 and 27 months, and Kipnis to probation with six months of home detention.

The three fraud counts (which we'll treat as two, because two of the three relate to transactions with the same company, APC) were submitted to the jury under two theories: that of a scheme of fraudulent appropriation of money to which Hollinger was legally entitled (we'll call this " pecuniary fraud" ), and that of a scheme to deprive Hollinger of the latter's " intangible right of honest services," 18 U.S. C. § 1346, amending sections 1341 and 1342. The first theory required that the defendants have obtained a pecuniary benefit at the expense of Hollinger; the second did not; and because the jury returned a general verdict on the fraud counts, we cannot be absolutely certain that it found the defendants guilty of pecuniary fraud as well as, or instead of, honest-services fraud.

After we affirmed, the Supreme Court held that the latter form of fraud requires proof that the defendant(s) received a bribe or kickback, as otherwise section 1346 would be unconstitutionally vague. Skilling v. United States, __ U.S. __, 130 S.Ct. 2896, 2931, 177 L.Ed.2d 619 (2010); see United States v. Cantrell, 617 F.3d 919, 921 (7th Cir.2010); United States v. Urciuoli, 613 F.3d 11, 17-18 (1st Cir.2010). That was not proved here and so the defendants could not lawfully be convicted of honest-services fraud. But if it is not open to reasonable doubt that a reasonable jury would have convicted them of pecuniary fraud, the convictions on the fraud counts will stand. Hedgpeth v. Pulido, 555 U.S. 57, 129 S.Ct. 530, 531-32, 172 L.Ed.2d 388 (2008) (per curiam); see Neder v. United States, 527 U.S. 1, 15-16, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999); United States v. L.E. Myers Co., 562 F.3d 845, 855 (7th Cir.2009); United States v. Cappas, 29 F.3d 1187, 1192 (7th Cir.1994); United States v. Jackson, 196 F.3d 383, 386 (2d Cir.1999). " An instructional error arising in the context of multiple theories of guilt no more vitiates all the jury's findings than does omission or misstatement of an element of the offense when only one theory is submitted." Hedgpeth v. Pulido, supra, 129 S.Ct. at 532 (emphasis in original).

The case would still have to be remanded to the district court for resentencing unless it was reasonably certain that the judge would have imposed the same sentences even if the charge of honest-services fraud had not been submitted to the

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jury. Suppose no reasonable jury would have failed to find pecuniary fraud. Nevertheless that same jury, having been instructed on honest-services fraud, might have found the defendants guilty of honest-services fraud as well. The judge, if she thought that, would then have been incorrectly sentencing the defendant for two crimes rather than one. She might think honest-services fraud the more serious crime, or at least that it made the defendants' conduct more reprehensible and so merited heavier overall sentences.

We begin with defendant Black's argument that the submission of that charge to the jury contaminated his conviction of obstruction of justice, and that therefore he is entitled to a retrial on the obstruction count as well as on the fraud counts. He was charged with having concealed or attempted to conceal documents " with the intent to impair the [documents'] integrity or availability for use in an official proceeding," in violation of 18 U.S. C. § 1512(c)(1). There was compelling evidence that he knew that the acts that later formed the basis of the fraud charges against him and his codefendants were being investigated by a grand jury and by the SEC. In the midst of these investigations Black with the help of his secretary and his chauffeur removed 13 boxes of documents from his office, put them in his car, was driven home, and helped carry them from the car into his house.

He later returned the boxes; and copies of the documents were available to the government before the boxes were removed; but it was material to the investigation whether Black had had copies in his office. For that would mean that he had received them and might know they were material to the government's...

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