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BLACK v. UNITED STATES

Docket No.: 08-876
Certiorari Granted: May 18 2009
Argued: December 8, 2009
Decided: June 24, 2010

Topics:

ADA, Civil Procedure, Federal Rules of Civil Procedure, Federal Rules of Criminal Procedure, Fifth Amendment, murder, property rights

PartyNames: Conrad M. Black, John A. Boultbee, and Mark S. Kipnis v. United States
Petitioner: Conrad M. Black, John A. Boultbee, and Mark S. Kipnis
Respondent: United States

Court Below: United States Court of Appeals for the Seventh Circuit
Citation: 530 F.3d 596

Conrad M. Black, John A. Boultbee, and Mark S. Kipnis
v.
United States
Background:

This Court held in McNally v. United States, 483 U.S. 350 (1987), a public corruption case, that the mail fraud statute could not be used to prosecute schemes to deprive the citizenry of the intangible right to good government. Congress responded in 1988 by enacting 18 U.S.C. § 1346, which expands the definition of a "scheme or artifice to defraud" under the mail and wire fraud statutes to encompass schemes that "deprive another of the intangible right of honest services." Twenty years later, the courts of appeals are hopelessly divided on the application of Section 1346 to purely private conduct. In this case, the Seventh Circuit disagreed with at least five other circuits and held that Section 1346 may be applied in a purely private setting irrespective of whether the defendant's conduct risked any foreseeable economic harm to the putative victim. In the alternative, the Seventh Circuit ruled that the defendants forfeited their objection to the improper instructions by opposing the government's bid to have the jury return a "special verdict," a procedure not contemplated by the criminal rules and universally disfavored by other circuits as prejudicial to a defendant's Sixth Amendment rights.

Question Presented:

1. Whether 18 U.S.C. § 1346 applies to the conduct of a private individual whose alleged "scheme to defraud" did not contemplate economic or other property harm to the private party to whom honest services were owed.2. Whether a court of appeals may avoid review of prejudicial instructional error by retroactively imposing an onerous preservation requirement not found in the federal rules.

Question:

1) Does 18 U.S.C. Section 1346 apply to private individuals whose alleged "scheme to defraud" did not intend harm to the private party to whom "honest services" were owed? 2) May a court of appeals avoid review of a prejudicial jury instruction by retroactively imposing a verdict preservation requirement that is not found in the federal rules?

BLACK v. UNITED STATES
ORAL ARGUMENT

December 8, 2009

Holding: vacated and remanded
Vote: 9-0

BLACK v. UNITED STATES
Case Documents

1Opinion in BLACK v. UNITED STATES
2BLACK v. UNITED STATES Oral Argument Transcript (HTML)
3BLACK v. UNITED STATES Oral Argument Transcript (PDF)
4BLACK v. UNITED STATES Oral Argument Transcript (HTML)
Additional documents for this case are pending review.