Conrad Black Loses Appeal
Newspaper magnate and British Baron, Lord Conrad Black, already serving his 6 1/2 year federal prison term for fraud, lost his appeal today.
The Chicago Tribune report is here. The 7th Circuit Court of Appeals decision is here (pdf.) It contains some interesting comments on "the ostrich instruction" which basically tells the jury if they find the defendant buried his head in the sand to avoid knowing what was going on, they can find him guilty.
The convictions relate to millions of dollars that prosecutors said were illegally pocketed from the Hollinger International newspaper empire, since renamed Sun-Times Media. The former media baron has repeatedly proclaimed his innocence and has vowed to continue to fight the convictions.
Judge Richard Posner wrote the opinion. The trial judge was Amy St. Eve, the same judge that presided over the Tony Rezko trial. [More...]
A former Whitewater prosecutor, U.S. District Judge Amy St. Eve, 41, is described by lawyers as meticulous, intelligent and highly organized.
St. Eve joined the federal bench in 2002 at 36, becoming one of the youngest federal judges in the country. A native of southern Illinois and a graduate of Cornell Law School, St. Eve helped convict former Arkansas Gov. Jim Guy Tucker and Sue and Jim McDougal on fraud charges in 1996. She has worked as both a corporate lawyer and a federal prosecutor, handling public corruption, health and bank fraud cases.
From the opinion, on the "ostrich instruction":
The reference of course is to the legend that ostriches when frightened bury their head in the sand. It is pure legend and a canard on a very distinguished bird. Zoological Society of San Diego, Birds: Ostrich, (visited June 12, 2008) (“When an ostrich senses danger and cannot run away, it flops to the ground and remains still, with its head and neck flat on the ground in front of it. Because the head and neck are lightly colored, they blend in with the color of the soil. From a distance, it just looks like the ostrich has buried its head in the sand, because only the body is visible”). It is too late, however, to correct this injustice.
An ostrich instruction tells the jury that to suspect that you are committing a crime and then take steps to avoid confirming the suspicion is the equivalent of intending to commit the crime. E.g., United States v. Giovannetti, 919 F.2d 1223, 1228 (7th Cir. 1990).
Suppose you think you’ve rented your house to a drug gang, but to avoid confirming your supposition you make sure not to drive near the house, where you might observe signs of drug activity. That would be the equivalent of knowledge that you had rented the house to the gang. It would be a case of physical avoidance of confirmation of one’s suspicions but there is also psychological avoidance, which is the type alleged here and which requires the jury’s “distinguishing between a defendant’s mental effort of cutting off curiosity, which would support an ostrich instruction, and a defendant’s simple lack of mental effort, or lack of curiosity, which would not support an ostrich instruction.” United States v. Carrillo, 435 F.3d 767, 780 (7th Cir. 2006). It is the distinction between willful ignorance and ordinary ignorance.
....If you receive a check in the mail for $1 million that you have no reason to think you’re entitled to, you cannot just deposit it and when prosecuted for theft say you didn’t know you weren’t entitled to the money—that it might have been a random gift from an eccentric billionaire. You would have strongly suspected that you weren’t entitled to the money and you would therefore have a duty to investigate. By shutting your eyes you tacitly confessed your all-but-certain knowledge that you were stealing the money.
The Court said the instruction was appropriate, even against the least culpable codefendant in the case.
If you aren't familiar with Conrad Black and his views, the Toronto Star has this collection of his quotes.
Judge Posner, by the way, is a long-time blogger. Maybe that's why the opinion has such a nice, breezy style to it. Not too many appellate opinions begin a parargraph with "Anyway, ..." as if the author is telling a story.
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