By: Mark Fitzgerald
Dethroned press lord and convicted criminal Conrad Black will learn at his bail hearing Thursday afternoon in Chicago federal court whether he will be allowed to remain at liberty until his November 30 sentencing. But he and his attorneys already know prosecutors will try to convince U.S. District Judge Amy J. St. Eve to give him a long prison stretch based not only on the four guilty verdicts they won — but also the nine acquittals.
It’s called “acquitted conduct sentencing enhancement,” and has become a favorite legal tool of prosecutors for the past decade.
Essentially, it allows the judge to consider all the charges against a convicted criminal, even those on which he was acquitted. “There’s nothing new about it,” said David Ziemer, a lawyer and editor of the Wisconsin Law Journal. “The standard to convict somebody of a crime is ‘beyond a reasonable doubt.’ But the standard for sentencing is a preponderance of evidence. If somebody is charged with two bank robberies and convicted of just one, the judge can say, well, I heard the evidence and I think you robbed both banks, so where I might have given you five years for one robbery, I’m going to give you the 10-year maximum.”
What’s unique about the U.S. federal court system is that the sentencing guidelines require judges when calculating sentences to consider so-called acquitted conduct that relates to the conduct for which a person was convicted, says David Yellen, dean of Loyola University’s law school in Chicago, and an expert on sentencing guidelines. “No state that has structured sentencing guidelines takes into account acquitted conduct,” he said.
And there’s no such legal concept in Canada. Since the Montreal-born Black, who renounced his citizenship to accept a peerage in Britain, was convicted on Friday the 13th of July, Canadian newspapers have been buzzing about the effect it may have on Black’s sentence.
Black was convicted of three counts of fraud related to non-compete fees for the sales of some community newspapers and for a single count of obstruction of justice for removing boxes from his office at a time he was under court order not to take anything away.
The fraud charges on which he was acquitted alleged he took far more money than the fees he raked in from the three charges on which he was found guilty. He was also acquitted of racketeering — which carried the stiffest sentence of all the counts — as well as tax evasion, and wrongfully expensing lavish events to his newspaper publishing company.
Black’s lawyers have said that the fraud convictions amount to less than $3 million and thus do not deserve a heavy sentence under the federal guidelines.
But prosecutors can argue that the judge should consider the entire $60 million they say Black, and three other former executives of Hollinger International pocketed from the non-compete fees.
If the judge accepted that argument, Black could be put away for the maximum 35 years for the four counts. The judge, however, is prohibited from sentencing him as if he had been convicted of racketeering, law school Dean Yellen said: “So it’s certainly good for him that he was not convicted of racketeering — it’s just not as good as a layperson would think, that if you’re acquitted of something it goes away.”
Prosecutors said their “conservative” estimate of the sentence they will ask for is between 15 and 20 years.
Black has vowed to appeal his conviction, and the Seventh Circuit Court of Appeals, the Chicago-based court that would take his appeal has said acquitted conduct sentencing extensions can be an issue in an appeal, law journal Editor Ziemer said.
The key factor in an appeal on the issue is whether the sentence is far harsher than the guidelines would suggest without considering acquitted conduct, he said.
“Suppose the guidelines say five years, and the judge says, I’m going to give you 35 years because I heard the evidence,” he said. “I think that’s a scenario where he could go to the Seventh Circuit and they might very well overturn it.
“But if sentencing guidelines say five years and the judge says, I’m gonna give ten — I think the Seventh Circuit would be okay with that.”