Conrad Black’s Sentence Upheld; 7th Circuit OKs Ostrich Instruction

[WSJ_law_blog]

Former newspaper tycoon Conrad Black enters the Chicago federal courthouse, June 30, 2006 (Credit: Associated Press/Spencer Green)


Black, 63, and three other former Hollinger International executives — Peter Atkinson, John Boultbee and Mark Kipnis — were found guilty last year of defrauding the newspaper company out of millions of dollars. The defendants allegedly caused Hollinger, which now goes by Sun-Times Media Group, to make false filings with the SEC for “private gain.”

“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,” Posner wrote, rejecting the defense’s argument that the jury was improperly given the “ostrich instruction.” (What’s an “ostrich instruction”? An “ostrich instruction,” Posner explains, “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.” Posner also clears up a fallacy: The legend that ostriches bury their head in the sand when frightened, he says, is “pure legend and a canard on a very distinguished bird.”)

Patrick J. Fitzgerald, the U.S. Attorney for the Northern District of Illinois, said in a statement, “The court found clear evidence that all four defendants engaged in a brazen, multimillion dollar corporate fraud scheme and deprived the public shareholders of Hollinger International of their right to the executives’ honest services.”

Black’s defense attorney, Mayer Brown’s Andrew Frey, told the Sun Times that, the defense team is “carefully studying our options as to what we can do to get things straightened out.” Black could still try appealing to the entire 7th Circuit Court and the U.S. Supreme Court.