Black v. United States
Issues
Whether honest services fraud requires a showing of economic harm, and whether a preservation requirement enables an honest services fraud conviction to be upheld without analyzing jury instructions for error.
The United States convicted Petitioners Conrad Black, John Boultbee, and Mark Kipnis of mail and wire fraud under 18 U.S.C. § 1341. The Seventh Circuit affirmed the convictions, rejecting arguments that the trial judge erred in failing to instruct the jury that a violation of 18 U.S.C. § 1346 requires contemplation of economic harm to the party to whom one owes “honest services.” The Seventh Circuit further held that objection to the prosecution’s request for a special verdict constituted waiver of the right to challenge the trial judge’s instruction in light of the fact that a special verdict would have clarified whether the trial judge’s instruction regarding honest services fraud was the basis for the convictions. The Supreme Court’s decision will determine the limits of the honest services provision and the means by which to preserve instructional error.
Questions as Framed for the Court by the Parties
1. Whether 18 U.S.C. § 1346 applies to the conduct of a private individual whose alleged "scheme to defraud" did not contemplate economic or other property harm to the private party to whom honest services were owed.
2. Whether a court of appeals may avoid review of prejudicial instructional error by retroactively imposing an onerous preservation requirement not found in the federal rules.
Hollinger International, Inc. (“Hollinger”), owner of the Chicago Sun-Times, came under governmental suspicion in 1998 when it began executing non-competition agreements in connection with the sale of most of its smaller newspapers. See United States v. Black, 530 F.3d 596, 599 (7th Cir.
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Additional Resources
• New York Times, Adam Liptak: A Question of When Dishonesty Becomes Criminal (Oct. 12, 2009)
• Wall Street Journal Law Blog: Conrad Black, the Supreme Court, and Honest Services Fraud (May 23, 2009)
• Wall Street Journal Law Blog: It’s Not Just the Skilling Case: High Court Tackles Honest Services Fraud (Oct. 13, 2009)