PAUL WALDIE
CHICAGO — From Saturday's Globe and Mail Published on Saturday, Jul. 14, 2007 7:25AM EDT Last updated on Friday, Apr. 03, 2009 10:02AM EDT
Conrad Black had never met the three men whose testimony was key to his conviction yesterday. Neither Mike Reed, Lloyd Case nor David Paxton would easily fit into Lord Black's high-powered social circle, but these men did more to deliver the guilty verdicts than anyone else.
Their testimony was central to the convictions on three counts of mail fraud. Unlike other high-profile witnesses they never wavered on the witness stand or lost their credibility.
A Chicago jury found Lord Black guilty yesterday of three counts of fraud and one count of obstruction of justice. He faces as much as 15 to 20 years in prison. Three other former executives of Hollinger International Inc., John Boultbee, Peter Atkinson and Mark Kipnis, were found guilty of three fraud charges, and face lesser penalties.
Mr. Reed, Mr. Case and Mr. Paxton run dozens of newspapers in small towns across the United States like Jamestown, N.D., and Paducah, Ky. All three explained to jurors the intricacies of the small-town newspaper business and the deal-making involved.
But they also told jurors that when they bought papers from Hollinger International Inc. in the late 1990s, something just did not seem right.
They explained that in most newspaper deals, buyers seek non-competition agreements from sellers, so that the other company won't simply set up shop and start competing again. Those agreements are usually straightforward with a portion of the purchase price dedicated to a non-competition payment.
Usually sellers want to limit the number of parties included in the non-competition agreement so as not to restrict their business. But when Hollinger sold newspapers, more entities and names were added including some, like Lord Black, the three men had never heard of. When they were told a portion of the non-compete fee would go to those individuals, the three men balked.
"It just didn't seem like the right thing to do," Mr. Reed told the jury. "... We did not view these individuals as potential competitors."
Mr. Case said he couldn't understand why Lord Black and other Hollinger executives would sign non-competition agreements and receive payments. He had never heard of Lord Black and did not view him as a threat. "We were not concerned that they would come back to the community," he told the jury.
Thomas Henson, a lawyer who worked on the deal for Mr. Reed's company, testified that he was so uncomfortable with the arrangement that he refused a request by Hollinger's lawyer, defendant Mr. Kipnis, to wire money directly to Lord Black. He added that he did not know Lord Black and the others "from Adam's housecat."
Mr. Paxton said flatly, "We did not feel we needed a non-compete from Conrad Black."
As a result of those newspaper deals, more than $30-million in total went to Lord Black, three other executives and Hollinger Inc., a Toronto company controlled by Lord Black.
The insertion of Lord Black and the others in the non-competition agreements formed the crux of the prosecution case against Lord Black. Prosecutors argued the non-competition money should have gone to Hollinger International, not the individuals or Hollinger Inc.
And more so than high-profile insider witnesses such David Radler and former Illinois governor James Thompson, they nailed Lord Black.
"The buyers didn't request it," prosecutor Julie Ruder said repeatedly during closing arguments. "This case is about why. Why was that money paid." She highlighted the testimony of Mr. Reed, Mr. Case, Mr. Henson and Mr. Paxton.
Lawyers for Lord Black and the others argued that the terms of the deals clearly stated that the non-competition agreements were required. And, they suggested the buyers really did want Lord Black and the others included because they were involved in other newspaper ventures outside of Hollinger International.
But in the end, the jurors sided with the prosecutors and convicted Lord Black, Mr. Boultbee, Mr. Atkinson and Mr. Kipnis for fraud over these very deals.
The other fraud convictions relate to a non-competition agreement the men concocted with no real transaction. It involved a Hollinger International subsidiary called American Publishing Company. Prosecutors successfully argued that Lord Black and the others simply drew up non-competition agreements as a way of disguising payments to them from APC. Why disguise them as non-compete payments? Because at the time those payments were tax-free in Canada.
To drive home their point, prosecutors showed jurors that at the time the non-competition deal was arranged, APC had sold virtually all of its newspapers and was down to a single paper in Monmouth, Calif. Lead prosecutor Eric Sussman showed the jury a copy of the paper, featuring a story on snowboarding, telling the jury that this was the paper Lord Black was paid $2.6-million not to compete with. In short, he said, Lord Black and the others were paid millions of dollars not to compete with themselves.
As for Lord Black's conviction on obstruction of justice, he may have to blame his loyal secretary Joan Maida.
The charge related to Lord Black's removal of 13 boxes from his Toronto office in May of 2005, despite a court order not to remove material and a pending subpoena from the U.S. Securities and Exchange Commission. Lord Black was caught on a security camera removing the material.
Ms. Maida testified for Lord Black during the trial, and she tried to explain to jurors that the boxes contained only personal items that were being taken to her home. But she became so confused and contradictory on the witness stand that even a lawyer from another defence team muttered: "Why did they call her?"
Yesterday evening, as the courthouse cleared, Mr. Sussman stopped briefly to talk about the case, the biggest in his eight-year career as a prosecutor. He smiled when asked about the testimony of Mr. Reed and the others, agreeing that they played a big role in the convictions. When asked whether he was disappointed that more convictions weren't entered, he replied: "Each one was found guilty of stealing money from the company, which is what we said they did."
Then he walked into a nearby bar to share a drink with his colleagues.
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