June 25, 2008
And 20 Days Later Conrad Black Loses His Appeal in 7th Circuit
Twenty (20) days following the oral argument, the 7th Circuit in an opinion authored by Hon. Posner affirmed Conrad Black's conviction ( Opinion - Download conrad_black.pdf ). The trial lasted four months, and Conrad Black was sentenced in December 2007. The opinion is 16 pages long and the last sentence of it states: "[t]he defendants raise some other points in their 161 pages of briefs, but none that has sufficient merit to require discussion."
The court examines both 1341's money element and 1346's honest services provision. To get a sense of the opinion, here's a paragraph:
"They are making a no harm-no foul argument, and such arguments usually fare badly in criminal cases. Suppose your employer owes you $100 but balks at paying, so you help yourself to the money from the cash register. That is theft, e.g., State v. Winston, 295 S.E.2d 46, 51 (W. Va. 1982); Edwards v. State, 181 N.W.2d 383, 387-88 (Wis. 1970); State v. Self, 713 P.2d 142, 144 (Wash. App. 1986), even though if the employer really owes you the money you have not harmed him. You are punishable because you are not entitled to take the law into your own hands. Harmlessness is rarely a defense to a criminal charge; if you embezzle money from your employer and replace it (with interest!) before the embezzlement is detected, you still are guilty of embezzlement."
The court rejects materiality being needed for obstruction. With regard to the ostrich defense, the ostrich is a clear winner, as the court states:
"The first is whether an "ostrich" instruction should have been given. 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, www.sandiegozoo.org/animalbytes/t-ostrich.html (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."
The court, however, rejects defendant Conrad Black's argument on this issue.
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a victory for ostriches(sic?) everywhere. well put, judge posner.
Posted by: cat dirt | Jun 26, 2008 8:44:27 AM