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They told the US 7th Circuit Court of Appeals that the 62-year-old British baron known as Lord Black of Crossharbour should get his fraud and obstruction of justice convictions thrown out or at least get a new trial.
A federal court jury acquitted Black on nine of the charges against him at the four-month trial that ended last July but convicted him of three fraud counts and one obstruction count.
"Four counts of conviction are left for his appeal, each vainly searching for a theory of criminality," the 100-page appeals brief said.
Black was accused of siphoning off millions of dollars belonging to shareholders in his Hollinger International newspaper holding company through what were billed as non-compete payments from buyers of community newspapers owned by the company.
Buyers of newspapers often make non-compete payments in return for a promise from the sellers not to compete against the new owners. But federal prosecutors said such payments rightly belonged to shareholders.
And they argued that the three fraud counts on which jurors convicted Black referred to funds camouflaged as non-compete payments but actually represented instances in which Black and fellow Hollinger executives aided by a company attorney helped themselves to the shareholders' money.
The appeals brief, signed by 13 attorneys, was filed not only on behalf of Black but co-defendants Peter Y. Atkinson, John A. Boultbee and Mark S. Kipnis. Another top Hollinger executive, F. David Radler, also was charge in the case but made a deal and is now serving a 29-month sentence.
Radler was the government's star witness.
But the appeal said if the jury had understood what Radler said on the witness stand, Black would not have been convicted.
"The government's principal witness exculpated defendants on two of the counts and there was simply no evidence of any sort to support the conviction on the third," the brief said.
Jurors convicted Black of obstruction of justice after seeing a videotape of the newspaper mogul hauling boxes of documents out of the Toronto office and loading them into his car.
Prosecutors said he was trying to hide evidence of financial wrongdoing from Securities and Exchange Commission investigators.
But the appeals brief said he had been "removing from his longtime office personal papers and effects, on the eve of his eviction from the space by new management, and in full view of others, including his assistant and security cameras."
"There was no evidence whatsoever of any intent to obstruct justice," the attorneys argued.
They said that US District Judge Amy J. St. Eve "permitted the prosecution to take two crucial evidentiary shortcuts during the trial."
One was a so-called "ostrich" instruction in which jurors were told that ignorance of wrongdoing was not an excuse if Black had deliberately looked the other way. The other alleged shortcut was allowing the government to introduce "uncharged, inaccurate SEC disclosures filed long after the fact."
- Sapa
