17/07/07 (US):
Black Still In Trouble on Acquitted Charges
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Conrad Black may get a significantly increased sentence because of his actions stemming from charges he was actually acquitted of, experts have said.
A legal concept that will no doubt astonish UK lawyers known as "acquitted conduct sentencing enhancement" has been used by prosecutors across the United States since it was approved by the Supreme Court in 1997.
It was endorsed again just last week by a U.S. appeals court that dismissed a sentence appeal by former Atlanta mayor Bill Campbell, who is in prison serving a tax evasion sentence.
The same day that Campbell lost his appeal, Lord Black was convicted by a jury of three counts of mail fraud and one count of obstruction of justice. He was acquitted of nine other charges, including racketeering and tax fraud.
At his sentencing hearing on Nov. 30, prosecutors are entitled to try to show on a "preponderance of the evidence" (known as the balance of probabilities in the UK) that Lord Black engaged in illegal conduct that it could not prove beyond a reasonable doubt.
If the acquitted conduct evidence is accepted by Judge Amy St. Eve, it would be considered an aggravating factor that could significantly lengthen the sentence she imposes.
Prosecutor Eric Sussman told the judge after the verdicts were announced that the U.S. Attorney's office would likely be seeking a sentence of 15 to 20 years for Lord Black, based on federal guidelines. " Even that is low," Mr. Sussman. "I am talking the most conservative numbers."
The prosecution will be asking Judge St. Eve to consider prison terms of seven to 10 years for Jack Boultbee and Peter Atkinson, who were also convicted of three counts of fraud.
The U.S. Attorney's office has not indicated what sentence it will be seeking for former Hollinger lawyer Mark Kipnis.
"It is permissible, although debatable, for a judge to come to her own conclusions in sentencing," said Douglas Berman, a law professor at Ohio State University.
The prosecutors at Lord Black's sentencing hearing are unlikely to criticize the jury's verdicts, said Mr. Berman, an expert on sentencing. "They are much shrewder than that. They will say he was part of a broader scheme to defraud."
The right of a judge to penalize acquitted conduct was approved by the U.S. Supreme Court a decade ago in the case of a California man convicted of crack cocaine possession, but acquitted by a jury of using a firearm in a drug offence. The trial judge found that the man possessed the weapon and increased the sentence to nearly 22 years in prison.
The majority of the court, in the 7-2 decision in U.S. v. Watts, said that federal sentencing guidelines require a judge to consider all "relevant conduct" when determining a sentence. "An acquittal on the criminal charges does not prove a defendant is innocent. It merely proves the existence of a reasonable doubt," the court said. As a result, the majority said, the prosecution is entitled to "relitigate" the acquitted offences at a sentencing hearing where there is a lower standard of proof.
In dissent, Justice John Paul Stevens was critical of the conclusions of his colleagues. "The notion that a charge that cannot be sustained by proof beyond a reasonable doubt may give rise to the same punishment as if it had been so proved is repugnant," he wrote.
The three mail fraud counts against Lord Black each carry a maximum of five years in prison. The obstruction of justice conviction provides for a maximum sentence of 20 years. Lord Black was convicted under a section normally reserved for "witness tampering" but it is the only obstruction of justice charge in the U.S. federal criminal code where the government has given itself "extraterritorial jurisdiction" to prosecute the offence. The conviction related to boxes Lord Black removed from the Toronto headquarters of Hollinger in the spring of 2005.
While the obstruction charge carries a longer maximum penalty, it is the mail fraud convictions involving $3.5-million in non-compete payments that will enable prosecutors to ask for a sentence in excess of 10 years, Mr. Berman said. "The sentencing guidelines are written as if you are stealing from the corner store," he explained.
Randall Samborn, a spokesman for the U.S. Attorney's office in Chicago, declined to comment yesterday whether prosecutors will ask for a longer sentence based on the acquitted conduct of Lord Black. "We don't add to what we say in court. Those are our rules," Mr. Samborn said.
© X-Pro 2007
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