U.S. v. Black, No. 05 CR 727.

• Decision Date: 21 December 2006
• Docket Number: No. 05 CR 727.
• Parties: UNITED STATES of America, Plaintiff, v. Conrad M. BLACK, John A. Boultbee, Peter Y. Atkinson, Mark S. Kipnis, and The Ravelston Corporation Limited, Defendants.
• Court: U.S. District Court — Northern District of Illinois

469 F.Supp.2d 513

UNITED STATES of America, Plaintiff, v. Conrad M. BLACK, John A. Boultbee, Peter Y. Atkinson, Mark S. Kipnis, and The Ravelston Corporation Limited, Defendants.

No. 05 CR 727.

United States District Court, N.D. Illinois, Eastern Division.

December 21, 2006.

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Edward Marvin Genson, Genson and Gillespie, Marc William Martin, Marc W.

Martin, Ltd., Patrick Alan Tuite, Arnstein & Lehr, Daniel T. Hartnett, Royal B. Martin, Martin, Brown & Sullivan, Ltd., Robert Walter Tarun, Deborah L. Steiner, Latham & Watkins LLP, Chicago, IL, Edward L. Greenspan, Greenspan & White, Toronto, CA, Gustave H. Newman, Richard A. Greenberg, Newman & Greenberg, Benito Romano, Ian K. Hochman, Michael S. Schachter, Sharon M. Blaskey, Willkie Farr & Gallagher LLP, New York City, for Defendants.

MEMORANDUM OPINION AND ORDER

ST. EVE, District Judge.

On August 17, 2006, a grand jury returned a seventeen-count third superseding indictment (the "Indictment") naming four individual Defendants — Conrad M. Black, John A. Boultbee, Peter Y. Atkinson, Mark S. Kipnis — and a corporate Defendant, the Ravleston Corporation Limited (collectively, "Defendants"). The Indictment charges that Defendants committed the following 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)(1); (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). Defendants have filed a number of motions to dismiss and motions to strike challenging the legal and factual sufficiency of the Indictment. For the reasons discussed below, the Court denies those motions.

LEGAL STANDARD

I. Motions To Dismiss

Fed.R.Crim.P. 12(b)(2) provides that "[a] party may raise by pretrial motion any defense, objection, or request that the court can determine without a trial of the general issue." When considering a motion to dismiss under Rule 12(b)(2), "a court assumes all facts in the indictment are true and must `view all facts in the light most favorable to the government.'" United States v. Segal, 299 F.Supp.2d 840, 844 (N.D.Ill.2004) (quoting United States v. Yashar, 166 F.3d 873, 880 (7th Cir. 1999)). When viewed in that light, an indictment is sufficient if it satisfies three, constitutionally-mandated requirements. United States v. Anderson, 280 F.3d 1121, 1124 (7th Cir.2002). "First, [an indictment] must adequately state all of the elements of the crime charged; second, it must inform the defendant of the nature of the charges so that he may prepare a defense; and finally, the indictment must allow the defendant to plead the judgment as a bar to any future prosecution for the same offense." Id. (citing United States v. Smith, 230 F.3d 300, 305 (7th Cir.2000); further noting that "[t]he Fifth Amendment guarantees the right to an indictment by grand jury and serves as a bar to double jeopardy, while the Sixth Amendment guarantees that a defendant be informed of the charges against him."). In this regard, "[i]ndictments need not exhaustively recount the facts surrounding the crime's commission," United States v. Agostino, 132 F.3d 1183, 1189 (7th Cir. 1997), rather "when determining the sufficiency of an indictment, [a court] look[s] at the contents of the subject indictment `on a practical basis and in [its] entirety, rather than in a hypertechnical manner.'" United States v. McLeczynsky, 296 F.3d 634, 636 (7th Cir.2002) (quoting Smith, 230 F.3d at 305). In addition, "[a]n indictment, or a portion thereof, may be dismissed if it is otherwise defective or subject to a defense that may be decided solely on issues of law." United States v. Labs of Virginia, Inc., 272 F.Supp.2d 764, 768 (N.D.Ill.2003); see also United States v. Flores, 404 F.3d 320, 324 (5th Cir.2005) ("[t]he propriety of granting a motion to dismiss an indictment under [Fed.R.Crim.P.] 12 by pretrial motion is by-and-large contingent upon whether the infirmity in the prosecution is essentially one of law or involves determinations of fact. If a question of law is involved, then consideration of the motion is generally proper." (citation omitted)).

II. Motions To Strike

Federal. Rule of Criminal Procedure 7(d) provides that "[u]pon the defendant's motion, the court may strike surplusage from the indictment." Fed. R.Crim.P. 7(d). The related Advisory Committee Notes explain that the rule "introduces a means of protecting the defendant against immaterial or irrelevant allegations in an indictment ... which may, however, be prejudicial." "Motion to strike portions of the indictment should be granted `only if the targeted allegations are clearly not relevant to the charge and are inflammatory and prejudicial.'" United States v. Andrews, 749 F.Supp. 1517, 1518 (N.D.Ill.1990) (citation omitted); see United States v. Williams, 445 F.3d 724, 733 (4th Cir.2006) ("[A] motion to strike surplusage from the indictment should be granted only if it is clear that the allegations are not relevant to the charge and are inflammatory and prejudicial") (citations omitted); United States v. Michel-Galaviz, 415 F.3d 946, 948 (8th Cir.2005). "Simply put, legally relevant information is not surplusage [and] due to the exacting standard, motions to strike information as surplusage are rarely granted." United States v. Bucey, 691 F.Supp. 1077, 1081 (N.D.Ill.1988).

With these principles in mind, the Court turns to the merits of Defendants' Motions.

ANALYSIS

I. The Parties and Other Key Entities

Hollinger. International, Inc. ("International") was a Delaware corporation with an office located in Chicago, Illinois. (R. 219-1, Indictment at 1, ¶ 1a.) International was a holding company that was publicly traded on the New York Stock Exchange. (Id) Through its operating subsidiaries, International owned and published newspapers around the world, including the Chicago Sun — Times, The Daily Telegraph in the United Kingdom, the National Post in Toronto, Canada, the Jerusalem Post in Israel, sand numerous community newspapers in the United States and Canada. (Id.) International maintained an audit committee (the "Audit Committee") consisting of three independent directors that functioned as International's independent director committee for purposes of reviewing and approving the fairness of "related party" transactions between International and its controlling shareholders, officers, and/or directors. (Id.)

Hollinger Inc. ("Inc.") was a Canadian corporation with its principal office located in Toronto, Canada. (Id. at 2, ¶ 1b.) Inc. was a holding company that was publicly traded on the Toronto Stock Exchange. (Id.) Inc's primary asset was its interest in International, which it held directly through various subsidiaries. (Id.) Inc. held approximately 30% of International's equity, but still controlled a majority of International's stock voting power. (Id.) This disproportionate voting power existed because most of Inc.'s shares in International were Class B common stock that had a 10-1 voting preference over the Class A common shares held by International's public shareholders. (Id.)

Defendant the Ravelston Corporation Limited ("Ravelston") was an Ontario, Canada corporation with its principal office located in Toronto, Canada. (Id. at 2, ¶ 1 c.) Ravelston was a privately held corporation, with 98.5% of its equity owned by officers and directors of International and Inc., and 1.5% owned by the estate of a former Inc. director. (Id.) Ravelston's principal asset was its controlling interest in Inc., which it held directly and through various subsidiaries, and which was approximately 78% of Inc.'s equity during the relevant time period. (Id.) Ravelston, thus, was the controlling shareholder of International through its controlling interest in Inc. (Id. at 3, ¶ 1 c.)

Defendant Conrad M. Black ("Black") is a trained attorney and was a Canadian citizen until 2000 when he became a member of the United Kingdom's House of Lords. (Id at 3, ¶ 1d.) He resided in Toronto, London, and Palm Beach, Florida, and frequently stayed at an apartment owned by International in New York City.¹ (Id.) Black, through Conrad Black Corporation ("CBCC"), owned approximately 65.1 % of Ravelston. (Id.) Through his controlling interest in Ravelston, Black indirectly owned approximately 51 % of Inc., and through his ownership in' Inc., Black indirectly owned approximately 15% of International. (Id.) Despite having only a minority ownership in International, Black maintained voting control over International through Inc.'s ownership of international's "super-voting" Class B Common Stock. (Id.) Black also served as Chief Executive Officer and Chairman of the Board of Ravelston, Inc. and International. (Id)

Defendant John A. "Jack" Boultbee, ("Boultbee"), a Canadian citizen and a Chartered Accountant in Canada, owned through Mowitza Holdings, Inc. approximately 0.98% of Ravelston. (Id. at 3 ¶ 1e.) Boultbee also served as: (1) Chief Financial Officer of Ravelston; (2) Chief Financial Officer, Executive. Vice. President and a Director of Inc.; and (3) Executive Vice President and, for a period of time, Chief Financial Officer of International. (Id. at 3-4, ¶ 1e.)

Defendant Peter Y. Atkinson ("Atkinson"), a Canadian citizen and licensed attorney in Canada, owned 0.98% of Ravelston. (Id. at 4, ¶ 1f.) Atkinson also served as Vice President and General Counsel of Inc., and Executive Vice President of International. (Id.)

Defendant Mark S. Kipnis ("Kipnis"), a United States citizen and an attorney licensed in Illinois to practice law since 1974, served as Vice. President, Corporate Counsel and Secretary of International. (Id. at 4, ¶ 1 g.)

F. David Radler ("Radler"), a former De...