Conrad Black and two of his co-defendants have filed their defence with the U.S. Supreme Court as they prepare to take their fight against fraud convictions to the country's highest court.
Lawyers for Lord Black, John Boultbee and Mark Kipnis, convicted for their role in an alleged scheme to defraud shareholders of the Hollinger International media company, are asking the court to reverse a 2007 verdict, saying the former executives were been punished too severely.
A key argument in their case is the right to honest services - a concept developed to convict corrupt politicians who were seen as defrauding the public of their "honest services" as public servants - and whether it should apply to private conduct.
Lord Black's lawyers argue the government stretched that concept to fit the men's crimes and based it on the evidence of David Radler, the prosecution's star witness and one who lost so much credibility by the end of the trial that the government made a point of distancing itself from him in its closing.
"The government has stretched this malleable phrase, unknown in the common law, far beyond the public-corruption context that gave rise to its enactment," said the defence, filed yesterday.
"The convictions here, after the government's primary witness completely undermined the government's principal theory that petitioners fraudulently schemed to obtain money or property, are reason enough to place predictable and intelligible limits on an ambiguous theory of criminality that has bedevilled the lower courts for two decades."
As it stands, the "honest services" theory "effectively licenses prosecutors to target anything that offends their ethical sensibilities, especially when the defendant is likely to generate career-building headlines," the filing says.
Lord Black's lawyer, Miguel Estrada, argues, as his trial lawyers had, that the so-called "non-competition" payments prosecutors described as a way to funnel funds from shareholders were legitimate, a claim he says was "amply supported by even the government's proofs."
"To convict on the honest-services theory, the jury could put aside the allegations of theft and instead find that the petitioner misused his position for private gain for himself and/or a co-schemer," Mr. Estrada said.
"The jury therefore was permitted to return guilty verdicts on the fraud counts even after rejecting the government's main theory, that petitioners stole money from Hollinger."
A jury found Lord Black and three co-defendants guilty of fraud in 2007 after a four-month trial, while Lord Black was also found guilty of obstruction of justice.
The issue before the Supreme Court is not whether the facts presented in Lord Black's case were accurate, but rather a broader question of how the law should be applied.
After it hears the case, the top court will have three choices: leave the conviction in place, rule that one aspect of the case was flawed, or overturn it entirely.
While the court agreed to hear the case, it denied Lord Black's application for bail, leaving him in a Florida prison as his case winds itself through court.