Black v. United States

Decision Date19 February 2013
Docket NumberCase No. 12 C 4306
PartiesCONRAD M. BLACK, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
CourtU.S. District Court — Northern District of Illinois

AMY J. ST. EVE, District Court Judge:

Before the Court is Petitioner Conrad M. Black's motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. For the following reasons, the Court denies Petitioner's Section 2255 motion and declines to certify any issues for appeal pursuant to 28 U.S.C. § 2253(c)(2). The Court further denies Petitioner's motion for a writ of coram nobis. See Chaidez v. United States, 655 F.3d 684, 687 (7th Cir. 2011).

I. Charges

On August 17, 2006, a federal grand jury returned a seventeen-count Third Superseding Indictment against Petitioner and his co-defendants John Boultbee, Peter Atkinson, and Mark Kipnis, all of whom were senior executives at Hollinger International. Defendants David Radler and Ravelston Corporation Limited pleaded guilty and Radler agreed to cooperate with the government. On January 10, 2007, the government filed a Superseding Information removing some of the allegations from the Third Superseding Indictment. The Superseding Information charged Petitioner and his co-defendants Boultbee, Atkinson, and Kipnis with committing thefollowing offenses: (1) mail and wire fraud in violation of 18 U.S.C. §§ 1341, 1343, including the deprivation of the intangible right to honest services in violation of 18 U.S.C. § 1346; (2) money laundering in violation of 18 U.S.C. § 1957; (3) obstruction of justice in violation of 18 U.S.C. § 1512(c); (4) racketeering in violation of 18 U.S.C. § 1962(c); and (5) criminal tax violations in violation of 26 U.S.C. § 7206(2).

II. Jury Trial

On July 13, 2007, after extensive pretrial proceedings, approximately four months of trial, and two weeks of jury deliberations, a jury convicted Petitioner and his co-defendants on several counts of the Superseding Information. In particular, the jury convicted Petitioner and his co-defendants on several mail and wire fraud counts in violation of 18 U.S.C. §§ 1341, 1346, involving covenants not to compete (Counts I, VI, and VII of the un-redacted Superseding Information). Also, the jury convicted Petitioner for obstruction of justice in violation of 18 U.S.C. § 1512(c) (Count XIV of the un-redacted Superseding Information). On December 10, 2007, the Court sentenced Petitioner to 60 months in prison on Counts I, VI, VII and 78 months in prison on Count XIV to run concurrently.

III. Appeals

Petitioner and his co-defendants appealed to the United States Court of Appeals for the Seventh Circuit bringing the following claims: (1) there was insufficient evidence that they engaged in conventional pecuniary fraud; (2) the government's honest services theory was legally invalid; (3) there was insufficient evidence of fraud and a criminal mailing concerning certain supplemental payments to support the fraud allegation in Count VI; (4) the Court erred in giving the conscious avoidance ("ostrich") instruction; and (5) the Court should have given aninstruction concerning misrepresentations that occurred after the dates of the charged scheme. On June 25, 2008, the Seventh Circuit rejected these arguments and affirmed the defendants' convictions. See United States v. Black, 530 F.3d 596 (7th Cir. 2008).

Thereafter, the United States Supreme Court granted the defendants' petition for certiorari and addressed the scope and the constitutionality of the honest services statute, 18 U.S.C. § 1346. See Black v. United States, 561 U.S. ______, 130 S.Ct. 2963, 177 L.Ed.2d 695 (2010); Skilling v. United States, 561 U.S. _____, 130 S.Ct. 2896, 177 L.Ed.2d 619 (2010). The Supreme Court narrowed the scope of the honest services statute, and held "that § 1346 criminalizes only the bribe-and-kickback core of the pre-McNally case law." Skilling, 130 S.Ct. at 2931 (emphasis in original); see also Black, 130 S.Ct. at 2965. As such, the Supreme Court held that the honest services jury instruction was erroneous because it did not include a bribe or kickback element. See Black, 130 S.Ct. at 2970. The Supreme Court remanded this case to the Seventh Circuit to determine whether this instructional error was harmless.

Thereafter, the parties filed their Circuit Rule 54 Statements of Position and Responses and the Seventh Circuit heard oral argument on September 29, 2010. On October 29, 2010, the Seventh Circuit held that the instructional error was harmless as to one of the fraud counts, namely, Count VII. The Seventh Circuit also concluded that there was sufficient trial evidence to support Petitioner's obstruction of justice conviction in Count XIV. As such, the Seventh Circuit remanded the matter for a new trial on the remaining fraud counts, but advised the government to consider dismissing the remaining fraud counts. See United States v. Black, 625 F.3d 386, 392-93 (7th Cir. 2010). On December 17, 2010, the Seventh Circuit denied the defendants' petition for rehearing en banc.

On remand to this Court, the government elected to dismiss the remaining fraud counts remanded for retrial, and thus Petitioner stands convicted of one count of pecuniary fraud as charged in Count VII and one count of obstruction of justice as charged in Count XIV. On June 24, 2011, the Court re-sentenced Petitioner to 42 months in prison on Counts VII and VIV to run concurrently and two years of supervised release. Petitioner did not file a notice of appeal. On or about May 4, 2012, Petitioner completed his prison sentence. Because Petitioner filed the present motion before his supervised release term has ended, the government does not challenge the "in custody" requirement under Section 2255. See Torzala v. United States, 545 F.3d 517, 521 (7th Cir. 2008). Because Petitioner is still "in custody" until his supervised release term ends in May 2014, however, the Court cannot consider his alternative motion for a writ of coram nobis pursuant to the All Writs Act, 28 U.S.C. § 1651(a). See Chaidez v. United States, 655 F.3d 684, 687 (7th Cir. 2011) (writ of coram nobis "provides a method for collaterally attacking a criminal conviction when a defendant is not in custody, and thus cannot proceed under 28 U.S.C. § 2255."). The Court thus turns to Petitioner's arguments made in support of his Section 2255 motion.


"[R]elief under § 2255 is an extraordinary remedy because it asks the district court essentially to reopen the criminal process to a person who already has had an opportunity for full process." Almonacid v. United States, 476 F.3d 518, 521 (7th Cir. 2007); see also Bousley v. United States, 523 U.S. 614, 621, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998). Under Section 2255, relief "is available only when the 'sentence was imposed in violation of the Constitution or laws of the United States,' the court lacked jurisdiction, the sentence was greater than the maximumauthorized by law, or it is otherwise subject to collateral attack." Torzala, 545 F.3d at 521 (quoting 28 U.S.C. § 2255). A Section 2255 motion is not a substitute for a direct criminal appeal nor is it a means by which a defendant may appeal the same claims a second time. See Bousley, 523 U.S. at 621 (relief under 2255 "will not be allowed to do service for an appeal"); Varela v. United States, 481 F.3d 932, 935 (7th Cir. 2007) (Section 2255 motion is "neither a recapitulation of nor a substitute for a direct appeal.") (citation omitted).

If a Section 2255 petitioner does not raise a claim on direct appeal, that claim is barred from the Court's collateral review unless the petitioner can demonstrate cause for the procedural default and actual prejudice from the failure to appeal, see Sandoval v. United States, 574 F.3d 847, 850-51 (7th Cir. 2009), or that enforcing the procedural default would lead to a "fundamental miscarriage of justice." United States v. Fleming, 676 F.3d 621, 625 (7th Cir. 2012). The Supreme Court defines cause sufficient to excuse procedural default as "some objective factor external to the defense" which prevents a petitioner from pursuing his constitutional claim. See Murray v. Carrier, 477 U.S. 478, 492, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986). Prejudice means actual prejudice infecting the "entire trial with error of constitutional dimensions." Id. at 494 (citation omitted). A fundamental miscarriage of justice occurs when a petitioner establishes that "a constitutional violation has probably resulted in the conviction of one who is actually innocent." Id. at 496. To establish actual innocence, the petitioner must first provide "new reliable evidence - whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence - that was not presented at trial." Schlup v. Delo, 513 U.S. 298, 324, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995). The petitioner must then show that "in light of [this] new evidence, it is more likely than not that no reasonable juror would findhim guilty beyond a reasonable doubt." House v. Bell, 547 U.S. 518, 537, 126 S.Ct. 2064, 165 L.Ed.2d 1 (2006) (internal quotation and citation omitted).


Petitioner brings the following claims in his Section 2255 motion: (1) he was denied his Sixth Amendment right to counsel of choice; (2) he was denied his Fourth Amendment right against unreasonable seizure of his property; and (3) he was denied his Fifth Amendment right to due process.

Relevant to Petitioner's Section 2255 motion is the government's seizure of the proceeds of Petitioner's sale of a New York City apartment. Specifically, in October 2005, before the grand jury returned an indictment charging Petitioner, he sold a New York apartment after which the government seized the proceeds pursuant to seizure warrants signed by Magistrate Judge Mason under 18 U.S.C. § 981(a)(1)(C). Thereafter, Petitioner filed a motion for the seized property's return pursuant...

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