Friday, October 1, 2010

Most Brief (and Unbriefed) Note on Conrad Black's Appeal in Seventh Circuit and on Exchanges Between Miguel Estrada and Richard Posner

From an email to a friend:

...I listened to the whole argument--45'--and thought it was all interesting and fun to hear.

I thought Estrada weathered Posner's storm and made a good argument on honest services:

1. It was open to the jury to find honest services fraud without money theft.

2. That's because because that type of fraud could have been committed by non disclosure in violation of a fiduciary duty to disclose where the non disclosure enriches the non discloser at the reasonably possible expense of those entitled to the disclosure.

3. And that non disclosure used to be criminally actionable owed even absent money theft.

Posner at the end of that was reduced to saying, and I paraphrase, "that argument wasn't in your brief".

My guess is that Black wins on that point.

I also thought Estrada did a good job arguing that the jury was more likely to convict on obstruction if it thought Black was guilty of honest services fraud, which it did. So the argument was that that belief was likely to have tainted its evaluation of the obstruction evidence.

Posner argued that there was no "analytical link" between the two and the jury had plenty of evidence on which to find, as it did, Black's "corrupt intent."

I have a harder time guessing on this point but fwiiw, which is bubkes, I'd give the nod to Black here to.

This all is based on what I could gather from one listen to the oral argument, some of which escaped my understanding and a some of which was hard to hear.

My favourite line was Posner saying to Estrada, after Estrada said something about "a parody of reasoning", and I paraphrase, "Don't 'parody me reasoning.'"....

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