Monday, November 2, 2009

Conrad Black - Reply Brief - Gotcha

Up to bat in the year of the mail fraud is Conrad Black.  Set for oral argument on December 8, 2009, the briefs are now being filed. The most recent filing is the Defendant's reply brief - Download Black-Reply

One passage from page one says it all  -

The government contends that the majority rule unjustifiably adds a non-textual “element” of contemplated harm to mail fraud prosecutions, and proposes that the true path lies in the recognition that the 1988 Congress relied on the established element of materiality as the sole limitation on what federal prosecutors might choose to charge as “honest services fraud.” This is a surprising argument, because the government argued vigorously in Neder v. United States, 527 U.S. 1 (1999), a full decade after Congress supposedly contemplated such a thing, that materiality (which does not appear in the statutory text) is never an element of mail fraud. The government deservedly lost that argument, but it is a bit much for it now to say that in 1988 Congress clearly relied on a requirement for which the Solicitor General could find no evidence in 1999.

Note - Weyhrauch is also set for December 8, 2009. see here.

(esp)

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