Former publishing baron Conrad Black will get another day in court on Tuesday (December 8) in a last-ditch attempt to clear his name.

Lawyers for Black, the former chairman and CEO of Hollinger Inc., and three other executives will present oral arguments in the Supreme Court of the United States to overturn convictions of defrauding shareholders of a former subsidiary, Hollinger International. The lawyers are expected to focus on legal interpretations of what constitutes "honest services".

A Chicago jury convicted Black of mail fraud and obstruction of justice in 2007,  and he was  sentenced to six-and-a-half years in jail.  In June 2008, the  United States Court of Appeals upheld the convictions of Black, who also chaired Hollinger International,  and fellow executives Peter Atkinson, Jack Boultbee, and Mark Kipnis.

Boultbee  was sentenced to 27 months in jail; Atkinson received a 24-month sentence; and Kipnis, a lawyer, was sentenced to six months' home detention.

Black's long-time business partner, Vancouver resident David Radler, pleaded guilty to mail fraud and was fined $250,000 and  sentenced to 29 months in prison in return for testifying against the other four.

Radler, a former publisher of the Vancouver Sun and Province newspapers,  was permitted to serve much of his time in Canada and is now out on parole.

In its decision last year upholding the convictions, the U.S. Court of Appeals rejected the defendants' claim that they provided "honest services" to Hollinger International, which had a newspaper empire that included the Chicago Sun-Times, the Daily Telegraph in London, and the Jerusalem Post.

The appeals court ruling focused particular attention on US$5.5-million in "noncompete" payments made by Hollinger International to the five executives, which were not reported to the audit committee or to the board of directors. These payments were in connection with the sale of small newspapers owned by APC, which was a Hollinger International subsidiary.

The money was ultimately transferred to a private company called Ravelston, in which Black owned 65 percent of the shares, according to the appeals court ruling.

Under the law, it was necessary for the jury to determine that the defendants had transferred money from Hollinger International for their "private gain" in order to convict them.

These payments were not reported in annual 10-K statements to the Securities and Exchange Commission in the United States.

Lawyers for the defendants characterized these management fees as "compensation for granting covenants" not to compete, which made them eligible for more favourable tax treatment by the Canadian government.

"The defendants do not deny that they sought a private gain," the appeals court ruling stated. "But they presented evidence that they intended it to be a gain purely at the expense of the Canadian government. They argue for the statute to be violated, the private gain must be at the expense of persons (or other entitites) to whom they owed their honest services--a group not argued to include the Canadian government."

The appeals court didn't accept this argument, which could be repeated at the U.S. Supreme Court.

"Even if our analysis of honest services fraud is wrong, the defendants cannot prevail," the appeals court ruled. "There is no doubt that the defendants received money from APC and very little doubt that they deprived Hollinger of their honest services; whether they also got (or hoped to get) a tax break from the Canadian government was not an issue at trial, as the defendants acknowledged, albeit backhandedly, when they said in their reply brief in this court that the theory "that the defendants 'misused' their positions at Hollinger for personal gain in the form of Canadian tax benefits" was "the very theory the government propounded up to the eve of the trial (emphasis added). It was not the government's theory at trial."

Related stories:

Former Vancouver Sun publisher David Radler granted full parole

U.S. Supreme Court will hear appeal from Conrad Black and ex-Hollinger associates

Lighter sentence for David Radler suggests he played the Prisoner's Dilemma better than Conrad Black

Conrad Black's legal team seeks bail for jailed ex-newspaper baron