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Section 4: Criminal Law Institute of Bill of Rights Law at the William & Mary Law School College of William & Mary Law School William & Mary Law School Scholarship Repository Supreme Court Preview Conferences, Events, and Lectures 2009 Section 4: Criminal Law Institute of Bill of Rights Law at the William & Mary Law School Repository Citation Institute of Bill of Rights Law at the William & Mary Law School, "Section 4: Criminal Law" (2009). Supreme Court Preview. 203. https://scholarship.law.wm.edu/preview/203 Copyright c 2009 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/preview V. CRIMINAL In This Section: New Case: 08-876 Black v. United States Synopsis and Questions Presented p. 178 "Conrad Black's Anti-Fraud Case Will Go to Supreme Court" p. 184 David G. Savage "Convictions of Black, 3 Other Execs Upheld" p. 185 Mary Wisniewski "Judges Appear Cool to Black Appeal" p. 186 Susan Chandler "Media Tycoon Begins Term in Federal Prison" p. 187 Stephen Hudak "Unbowed Black Gets 6 1/2 Years" p. 189 David Savage "Dark Day for Lord Black" p. 192 Ameet Sachdev, David Greising and Susan Chandler "Lord Black Is Indicted by U.S." p. 195 Geraldine Fabrikant "DOJ May Rein in Use of 'Honest Services' Statute" p. 198 Lynne Marek New Case: 08-1196 Weyhrauch v. United States Synopsis and Questions Presented p. 201 "Supreme Court Takes Weyhrauch Mail-Fraud Question" p. 207 Erika Bolstad "Court OKs Weyhrauch Evidence" p. 208 Lisa Demer and Richard Mauer "Corruption Trials Divided; Kott's Hearing Continues, but Weyhrauch's Stalls on Federal Appeal" p. 210 Richard Mauer and Lisa Demer 176 "Indictment: Weyhrauch Sought Work with VECO" p. 212 Pat Forgery New Case: 08-1224 United States v. Comstock Synopsis and Questions Presented p. 213 "Supreme Court to Review Sex Offender Law" p. 221 Warren Richey "Release of Sex Offenders Delayed" p. 223 Lyle Denniston "4th Circuit Strikes Down Indefinite Lock-up of Those Tagged 'Sexually Dangerous"' p. 225 Pamela A. McLean "8th Circuit Says Adam Walsh Act Constitutional" p. 227 Angela Riley "4th Circuit Got It Right in Comstock" p. 229 Corey Rayburn Yung "U.S. Plans to Detain Worst Sex Offenders" p. 232 USA Today "New Law Designed to Provide More Protection for Children" p. 234 Sonya Kimbrell New Case: 07-11191 Briscoe v. Virginia Synopsis and Questions Presented p. 236 "Analysis: Is Melendez-Diaz Already Endangered?" p. 251 Lyle Denniston "U.S. Supreme Court to Hear Virginia Confrontation Case" p. 253 Alan Cooper "Requiring Accused to Demand Presence of Analyst Doesn't Deny Confrontation Right" p. 254 US Law Week "AG Candidate Wants Special Session After Supreme Court Ruling" p. 256 Associated Press 177 Black v. United States 08-876 Ruling Below: United States v. Black, 530 F.3d 596 (7th Cir. 2008). Because the defendants deprived their employer of honest services by paying themselves phony management fees disguised as compensation for covenants not to compete, the alleged inducement in the form of money from a third party (anticipation that Canadian government would not treat compensation as taxable income) is no defense to the charge of honest services fraud under 18 U.S.C. § 1346. The defendants forfeited objection to jury instruction, which required only finding that they deliberately failed to render honest services and did so to obtain private gain, by opposing the government's request at trial that jury be required to make separate findings on money or property fraud and honest services fraud. Questions Presented: (1) Does 18 U.S.C. § 1346 apply to the conduct of a private individual whose alleged "scheme to defraud" did not contemplate economic or other property harm to a private party to whom honest services were owed? (2) May court of appeals avoid review of prejudicial instructional error by retroactively imposing onerous preservation requirement not found in federal rules? UNITED STATES, Plaintiff-Appellee, V. Conrad M. BLACK, John A. Boultbee, and Mark S. Kipnis, Defendants-Appellants. United States Court of Appeals for the Seventh Circuit Decided June 25, 2008 [Excerpt: some footnotes and citations omitted] POSNER, Circuit Judge a covenant not to compete, but the payment was never approved by Hollinger's audit [A jury convicted Black and three co- board, nor was it ever disclosed to the defendants of mail and wire fraud in shareholders. In fact, the payments were violation of 18 U.S.C. § 1341 and Black of made directly to the defendants, who were obstruction of justice in violation of 18 not entitled to any payment. U.S.C. § 1512(c). The defendants were senior executives at Hollinger International, The Court then declines to discuss a second, which was essentially controlled by Black equally compelling fraud count, stating that through Ravelson, a Canadian company it is not necessary to the outcome of the controlled by Black. case.] The defendants set up a $5.5 million The evidence established a conventional payment from another company disguised as fraud, that is, a theft of money or other 178 property from Hollinger by So if the jury found such a misappropriation. misrepresentations and misleading this would mean that the defendants, having omissions amounting to fraud, in violation both deprived their employer of its right to of 18 U.S.C. § 1341. But the jury was also their honest services and obtained noney instructed that it could convict the from it as a result, were guilty of both types defendants upon proof that they had of fraud. Nothing is more common than for schemed to deprive Hollinger and its the same conduct to violate more than one shareholders "of their intangible right to the criminal statute. But the section 1346 honest services of the corporate officers, instruction, which we quoted, did not require directors or controlling share-holders of that the jury find that the defendants had Hollinger," provided the objective of the taken any money or property from scheme was "private gain." That instruction Hollinger; all it had to find to support a is the focus of the appeals. conviction for honest services fraud was that the defendants had deliberately failed to Section 1346 of the federal criminal code, render honest services to Hollinger and had added in 1988 in order to overrule McNally done so to obtain a private gain. The v. United States, 483 U.S. 350 (1987), defendants do not deny that they sought a defines "scheme or artifice to defraud" in private gain. But they presented evidence section 1341 to include a scheme or artifice that it was intended to be a gain purely at the to "deprive another of the intangible right of expense of the Canadian government. They honest services." The defendants do not argue that for the statute to be violated, the deny that Hollinger was entitled to their private gain must be at the expense of the honest services. They were senior executives persons (or other entities) to whom the of Hollinger and owed the corporation defendants owed their honest services-a fiduciary obligations, implying duties of group not argued to include the Canadian loyalty and candor. It is not as if Black had government. merely been using his power as controlling shareholder to elect a rubber-stamp board of They are making a no harm-no foul directors or to approve a merger favorable to argument, and such arguments usually fare him at the expense of the minority badly in criminal cases. Suppose your shareholders. He was acting in his capacity employer owes you $100 but balks at as the CEO of Hollinger when he ordered paying, so you help yourself to the money Kipnis to draft the covenants not to compete from the cash register. That is theft, even and when he duped the audit committee and though if the employer really owes you the submitted a false 10-K. On his own theory, money you have not harmed him. You are the fees that he collected, which the jury was punishable because you are not entitled to entitled to find were never owed to him, take the law into your own hands. were management fees rather than Harmlessness is rarely a defense to a dividends. The defendants' unauthorized criminal charge; if you embezzle money appropriation of $5.5 million belonging to a from your employer and replace it (with subsidiary of Hollinger was a misuse of interest!) before the embezzlement is their positions in Hollinger for private gain, detected, you still are guilty of which is just the kind of conduct that we embezzlement. said in United States v. Bloom, 149 F.3d at 655-57 (7th Cir. 1998), was the essence of The application of this principle to honest honest services fraud. services mail and wire fraud is straight- 179 forward. As explained in United States v. purchase supplies from the principal of the Orshurn, section 1346 was added "to deal person who bribed him. The buyer has with people who took cash from third parties deprived his employer (the department (via bribes or kickbacks). United States v. store) of his honest services, and has done so Holzer, 816 F.2d 304 (7th Cir. 1987), for private gain, but he has conferred no supplies a good example. Judge Holzer benefit on a third party. Judges who accept accepted bribes from litigants. What he took bribes invariably argue that they didn't from his employer, the state's judicial allow the bribes to influence their decisions. system, was the honest adjudication service But a judge who accepts bribes deprives the that the public thought it was purchasing in judiciary of his honest services even if, as exchange for his salary." Similarly, if the contended by Francis Bacon, the most defendants in this case deprived their famous of corrupt judges, he does nothing employer, Hollinger, of the honest services for the person who bribed him.
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