Black v. United States

(Slip Opinion) OCTOBER TERM, 2009 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

BLACK ET AL. v. UNITED STATES

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE SEVENTH CIRCUIT

No. 08–876. Argued December 8, 2009—Decided June 24, 2010
Petitioners (hereinafter Defendants)—executives of Hollinger Interna
tional, Inc. (Hollinger), a publicly held U. S. company—were indicted
for mail fraud, 18 U. S. C. §§1341, 1346, and other federal crimes. At
trial, the Government pursued alternative mail-fraud theories, charg
ing that (1) Defendants stole millions from Hollinger by fraudulently
paying themselves bogus “noncompetition fees”; and (2) by failing to
disclose those fees, Defendants deprived Hollinger of their honest
services. Before jury deliberations began, the Government proposed
special-verdict forms that would reveal, in the event that the jury
voted to convict on a mail-fraud count, the particular theory or theo
ries accounting for the verdict. Defendants resisted, preferring an
unelaborated general verdict. The Government ultimately acqui
esced. The District Court instructed the jury on each of the alterna
tive theories. As to honest-services fraud, the court informed the
jury, over Defendants’ timely objection, that a person commits that
offense if he misuses his position for private gain for himself and/or a
co-schemer and knowingly and intentionally breaches his duty of loy
alty. The jury returned general verdicts of “guilty” on the mail-fraud
counts, found that one Defendant was also guilty of obstruction of
justice, and acquitted Defendants on all other charges.
On appeal, Defendants urged the invalidity of the honest-services
fraud jury instructions. Seeking reversal of their mail-fraud convic
tions, Defendants relied on Yates v. United States, 354 U. S. 298, 312,
which held that a general verdict may be set aside “where the verdict
is supportable on one ground, but not on another, and it is impossible
to tell which ground the jury selected.” The Seventh Circuit found no
infirmity in the honest-services instructions, but further determined
that even if those instructions were wrong, Defendants could not pre
2 BLACK v. UNITED STATES

Syllabus

vail. By opposing the Government-proposed special-verdict forms,
the Court of Appeals declared, defendants had forfeited their objec
tion to the instructions. Their challenge would have become moot,
the court observed, had the jury received special-verdict forms sepa
rating the alternative fraud theories, and reported on the forms that
Defendants were not guilty of honest-services fraud. Defendants, the
Court of Appeals therefore reasoned, bore responsibility for the ob
scurity of the jury’s verdict.
Held:
1. In Skilling v. United States, decided today, ante, p. __, this Court
vacated a conviction on the ground that the honest-services compo
nent of the federal mail-fraud statute, §1346, criminalizes only
schemes to defraud that involve bribes or kickbacks. That holding
renders the honest-services instructions given in this case incorrect.
P. 5.
2. By properly objecting to the honest-services jury instructions at
trial, Defendants secured their right to challenge those instructions
on appeal. They did not forfeit that right by declining to acquiesce in
the Government-proposed special-verdict forms. The Federal Rules
of Criminal Procedure do not provide for submission of special ques
tions to the jury. In contrast, Federal Rule of Civil Procedure 49 pro
vides for jury interrogatories of two kinds: special verdicts, Rule
49(a); and general verdicts with answers to written questions, Rule
49(b). While the Criminal Rules are silent on special verdicts, they
are informative on objections to instructions. Criminal Rule 30(d)
provides that a “party who objects to any portion of the instructions
or to a failure to give a requested instruction must inform the court of
the specific objection and the grounds for the objection before the jury
retires to deliberate.” Defendants here, it is undisputed, complied
with that requirement. The Seventh Circuit, in essence, added a fur
ther requirement for preservation of a meaningful objection to jury
instructions. It devised a forfeiture sanction unmoored to any federal
statute or criminal rule. And it placed in the prosecutor’s hands au
thority to trigger the sanction simply by requesting a special verdict.
To boot, the appeals court applied the sanction to Defendants, al
though they lacked any notice that forfeiture would attend their re
sistance to the Government’s special-verdict request. Criminal Rule
57(b) is designed to ward off such judicial invention. It provides: “No
sanction . . . may be imposed for noncompliance with any require
ment not in federal law [or] federal rules . . . unless the alleged viola
tor was furnished with actual notice of the requirement before the
noncompliance.” Pp. 5–8.
3. As in Skilling, the Court expresses no opinion on whether the
honest-services instructional error was ultimately harmless, but
 Cite as: 561 U. S. ____ (2010) 3

Syllabus

leaves that matter for consideration on remand. P. 8.
530 F. 3d 596, vacated and remanded.

GINSBURG, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and STEVENS, BREYER, ALITO, and SOTOMAYOR, JJ., joined. SCALIA,
J., filed an opinion concurring in part and concurring in the judgment,
in which THOMAS, J., joined. KENNEDY, J., filed an opinion concurring
in part and concurring in the judgment.
 Cite as: 561 U. S. ____ (2010) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES
_________________

No. 08–876
_________________

CONRAD M. BLACK, JOHN A. BOULTBEE, AND MARK
S. KIPNIS, PETITIONERS v. UNITED STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SEVENTH CIRCUIT

[June 24, 2010]

JUSTICE GINSBURG delivered the opinion of the Court.
In Skilling v. United States, decided today, ante, p. __,
we vacated a conviction because the indictment rested, in
part, on an improper construction of the “honest services”
component of the federal ban on mail fraud, 18 U. S. C.
§§1341, 1346. A similar infirmity is present in this case.
Here, too, the Government and trial court advanced an
interpretation of §1346 rejected by the Court’s opinion in
Skilling. Nevertheless, the Government urges, the convic
tions of the defendants below, petitioners here, should be
affirmed for an independent reason. At trial, the Govern
ment pursued alternative theories: (1) money-or-property
fraud; and (2) honest-services fraud. To pinpoint whether
the jury based its verdict on money-or-property fraud, or
honest-services fraud, or both, the Government proposed
special interrogatories to accompany the verdict. The
defendants resisted, preferring an unelaborated general
verdict, and the Government ultimately acquiesced in that
standard form of submission.
The Court of Appeals held that the defendants, by op
posing the Government-suggested special interrogatories,
2 BLACK v. UNITED STATES

Opinion of the Court

forfeited their objection to the honest-services-fraud in
structions given to the jury. 530 F. 3d 596, 603 (CA7
2008). We reverse that ruling. A criminal defendant, we
hold, need not request special interrogatories, nor need he
acquiesce in the Government’s request for discrete find
ings by the jury, in order to preserve in full a timely raised
objection to jury instructions on an alternative theory of
guilt.
I
Petitioners Conrad Black, John Boultbee, and Mark
Kipnis, as well as Peter Atkinson,1 (collectively, Defen
dants) were leading executives of Hollinger International,
Inc. (Hollinger), a publicly held U. S. company that,
through subsidiaries, owned newspapers here and abroad.
In 2005, the Government indicted Defendants on multiple
counts, of prime concern here, three counts of mail fraud
in violation of §§1341 and 1346.2 Two theories were pur
sued by the Government on each mail-fraud count. The
Government charged that (1) Defendants stole millions
from Hollinger by fraudulently paying themselves bogus
“noncompetition fees”; and that (2) by failing to disclose
their receipt of those fees, Defendants deprived Hollinger
of their honest services as managers of the company. App.
to Pet. for Cert. 24a–54a.
At the close of the four-month trial, the U. S. District
Court for the Northern District of Illinois instructed the
jury, discretely, on the theft-of-money-or-property and
——————
1 Peter Atkinson is a respondent in support of petitioners who quali

fies for relief under this Court’s Rule 12.6. See Letter from Michael S.
Schachter to the Clerk of Court (July 29, 2009).
2 Section 1341 criminalizes use of the mails to further “any scheme or

artifice to defraud, or for obtaining money or property by means of false
or fraudulent pretenses, representations, or promises.” Section 1346
defines the §1341 term “scheme or artifice to defraud” to include “a
scheme or artifice to deprive another of the intangible right of honest
services.”
 Cite as: 561 U. S. ____ (2010) 3

Opinion of the Court

honest-services deprivation theories advanced by the
Government. Id., at 235a. As to the latter, the District
Court informed the jury, over Defendants’ objection, that a
person commits honest-services fraud if he “misuse[s] his
position for private gain for himself and/or a co-schemer”
and “knowingly and intentionally breache[s] his duty of
loyalty.” Id., at 235a–236a.
Before jury deliberations began, the Government asked
the District Court to employ a special-verdict form, which
would reveal, in the event that the jury voted to convict on
a mail-fraud count, the theory or theories accounting for
the verdict—money-or-property fraud, honest-services
fraud, or both. See App. 430a.3 Defendants opposed the
Government-proposed special interrogatories and urged,
instead, standard general-verdict forms. Id., at 432a.
Comprehending, however, that in the event of a guilty
verdict, “the jury’s specification of the [mail-]fraud theory
might [aid] appellate review,” ibid., Defendants proposed
an accommodation: Upon return of a guilty verdict on any
mail-fraud count, jurors could be asked to specify the
theory on which they relied, id., at 433a.
The Government objected to special interrogatories
presented to the jury postverdict, App. to Pet. for Cert.
222a, and the District Court declined to adopt that proce
dure, id., at 225a.4 When the court rejected postverdict
——————
3 The Government proposed this language for each defendant on each

mail-fraud count:
“If you find the defendant . . . Guilty with respect to [this Count], you
must answer the following question by checking the applicable lines.
“With respect to [this Count], we, the jury, find the following has
been proven beyond a reasonable doubt (check all that apply):
“Defendant engaged in a scheme to defraud [Hollinger] and its
shareholders of money or property ____
“Defendant engaged in a scheme to defraud [Hollinger] and its
shareholders of their intangible right to honest services ____.” App.
430a.
4 In her years at the bar and on the bench, the trial judge commented,
4 BLACK v. UNITED STATES

Opinion of the Court

interrogatories, the Government represented that it would
not object to submission of the mail-fraud counts for jury
decision by general verdict. Id., at 228a. The jury re
turned general verdicts of “guilty” on the three mail-fraud
counts;5 it also found defendant Black guilty of obstruction
of justice in violation of 18 U. S. C. §1512(c)(1), and it
acquitted Defendants on all other charges.
On appeal, Defendants urged the invalidity of the jury
instructions on honest-services fraud. Under the rule
declared by this Court in Yates v. United States, 354 U. S.
298, 312 (1957), a general verdict may be set aside “where
the verdict is supportable on one ground, but not on an
other, and it is impossible to tell which ground the jury
selected.” Relying on that rule, Defendants urged reversal
of their mail-fraud convictions. The Court of Appeals
found no infirmity in the honest-services instructions, 530
F. 3d, at 600–602, but further determined that Defendants
could not prevail even if those instructions were wrong,
id., at 602–603. For this determination, the court homed
in on the Government’s special-verdict proposal.
The challenge to the honest-services instructions would
have become moot, the court observed, had the jury re
ceived special-verdict forms separating money-or-property
fraud from honest-services fraud, and reported on the
forms that Defendants were not guilty of honest-services
fraud. Defendants, the Court of Appeals reasoned, bore
responsibility for the obscurity of the jury’s verdict. True,
the court acknowledged, it was not incumbent on Defen
dants to request special verdicts. But by resisting the
Government’s proposal for separate findings on money-or
property fraud and on honest-services fraud, and request

——————
she had “absolutely” never seen the postverdict procedure used. App. to
Pet. for Cert. 225a.
5 The District Court later granted Kipnis’ motion for judgment of

acquittal on one of these counts.
 Cite as: 561 U. S. ____ (2010) 5

Opinion of the Court

ing general verdicts instead, the Seventh Circuit con
cluded, Defendants had “forfeited their objection to the
[honest-services] instruction[s].” Id., at 603. Defendants’
suggestion of postverdict interrogatories did not, in the
Court of Appeals’ view, overcome the forfeiture, for
“[q]uestioning the jurors after they have handed down
their verdict is not a good procedure and certainly not one
that a district judge is required to employ.” Ibid.6
We granted certiorari in this case, 556 U. S. ___ (2009),
along with Skilling v. United States, 558 U. S. ___ (2009),
and Weyhrauch v. United States, 557 U. S. ___ (2009), to
determine what conduct Congress rendered criminal by
proscribing, in §1346, fraudulent deprivation of “the in
tangible right of honest services.” We also agreed to con
sider in this case the question whether Defendants for
feited their objection to the honest-services jury
instructions by opposing the Government’s request for
special verdicts.
II
We decided in Skilling that §1346, properly confined,
criminalizes only schemes to defraud that involve bribes or
kickbacks. See ante, p. __. That holding renders the
honest-services instructions given in this case incorrect,7
and brings squarely before us the question presented by
the Seventh Circuit’s forfeiture ruling: Did Defendants, by
failing to acquiesce in the Government’s request for spe
cial verdicts, forfeit their objection, timely made at trial, to
the honest-services instructions?
——————
6 See, e.g., Jacobs Mfg. Co. v. Sam Brown Co., 19 F. 3d 1259, 1267
(CA8 1994) (“Postverdict interrogatories may imply the jury’s verdict is
unjustified and cause the jury to answer the interrogatories in a man
ner inconsistent with the verdict.”); cf. Yeager v. United States, 557
U. S. ___, ___ (2009) (slip op., at 11) (“Courts properly avoid . . . explora
tions into the jury’s sovereign space.”).
7 The scheme to defraud alleged here did not involve any bribes or

kickbacks.
6 BLACK v. UNITED STATES

Opinion of the Court

In addressing this issue, we note first the absence of any
provision in the Federal Rules of Criminal Procedure for
submission of special questions to the jury. See Stein v.
New York, 346 U. S. 156, 178 (1953) (“Our own Rules of
Criminal Procedure make no provision for anything but a
general verdict.”), overruled on other grounds, Jackson v.
Denno, 378 U. S. 368 (1964).8 The sole call for special
findings in the Criminal Rules concerns nonjury trials.
Rule 23(c) provides: “If a party [in a case tried without a
jury] requests before the finding of guilty or not guilty, the
court must state its specific findings of fact in open court
or in a written decision or opinion.”
In contrast, the Federal Rules of Civil Procedure provide
for jury interrogatories of two kinds: special verdicts,
which instruct the jury to return “a special written finding
on each issue of fact,” Rule 49(a); and general verdicts
with answers to “written questions on one or more issues
of fact,” Rule 49(b).9 Although not dispositive,10 the ab
sence of a Criminal Rule authorizing special verdicts
counsels caution.11
——————
8 The absence of a special verdict or interrogatory provision in the
Criminal Rules is hardly accidental. See Skidmore v. Baltimore & Ohio
R. Co., 167 F. 2d 54, 70 (CA2 1948) (L. Hand, J., concurring) (“I should
like to subject a verdict, as narrowly as was practical, to a review which
should make it in fact, what we very elaborately pretend that it should
be: a decision based upon law. In criminal prosecutions there may be,
and in my judgment there are, other considerations which intervene to
make such an attempt undesirable.”).
9 Although the special interrogatories requested by the Government

in this case have been called “special verdicts” by the parties and the
courts below, they more closely resemble what Civil Rule 49(b) de
scribes as “general verdict[s] with answers to written questions.”
(Capitalization omitted.)
10 See Fed. Rule Crim. Proc. 57(b) (when there is no controlling law,

“[a] judge may regulate practice in any manner consistent with federal
law, these rules, and the local rules of the district”).
11 By calling for caution, we do not mean to suggest that special ver

dicts in criminal cases are never appropriate. See United States v.
 Cite as: 561 U. S. ____ (2010) 7

Opinion of the Court

While the Criminal Rules are silent on special verdicts,
they are informative on objections to instructions. Rule
30(d) “clarifies what . . . counsel must do to preserve a
claim of error regarding an instruction.” Advisory Com
mittee’s Notes on 2002 Amendment on Fed. Rule Crim.
Proc. 30(d), 18 U. S. C. App., p. 915. The Rule provides: “A
party who objects to any portion of the instructions or to a
failure to give a requested instruction must inform the
court of the specific objection and the grounds for the
objection before the jury retires to deliberate.” Defendants
here, it is undisputed, complied with that requirement.12
The Court of Appeals, in essence, added a further re
quirement for preservation of a meaningful objection to
jury instructions. It devised a forfeiture sanction un
moored to any federal statute or criminal rule. And it
placed in the prosecutor’s hands authority to trigger the
sanction simply by requesting a special verdict. See 530
——————
Ruggiero, 726 F. 2d 913, 922–923 (CA2 1984) (in complex Racketeer
Influenced and Corrupt Organizations Act cases, “it can be extremely
useful for a trial judge to request the jury to record their specific
dispositions of the separate predicate acts charged, in addition to their
verdict of guilty or innocence”); id., at 927 (Newman, J., concurring in
part and dissenting in part) (“[A] District Court should have the discre
tion to use a jury interrogatory in cases where risk of prejudice to the
defendant is slight and the advantage of securing particularized fact
finding is substantial.”).
12 The Government asserts that Defendants’ opposition to a special

verdict resulted in forfeiture not of their jury-instruction objection, but
of their “Yates argument” that any instructional error may “requir[e]
reversal.” Brief for United States 52, and n. 21 (internal quotation
marks omitted). The Government thus appears to concede that Defen
dants preserved their instructional challenge, but maintains that they
are powerless to ask a court to assess the prejudicial effect of any error
they may be able to demonstrate. See Reply Brief 29, n. 10 (on Gov
ernment’s view, “[Defendants] could still ‘claim’ they were wrongly
convicted, they just could not ask a court to do anything about it”). We
see little merit in the Government’s attempt to divorce preservation of
a claim from preservation of the right to redress should the claim
succeed.
8 BLACK v. UNITED STATES

Opinion of the Court

F. 3d, at 603.13 To boot, the Court of Appeals applied the
sanction to Defendants, although they lacked any notice
that forfeiture would attend their resistance to the Gov
ernment’s special-verdict request. There is a Rule de
signed to ward off judicial invention of the kind present
here. Federal Rule of Criminal Procedure 57(b) admon
ishes: “No sanction or other disadvantage may be imposed
for noncompliance with any requirement not in federal law
[or] federal rules . . . unless the alleged violator was fur
nished with actual notice of the requirement before the
noncompliance.”
We hold, in short, that, by properly objecting to the
honest-services jury instructions at trial, Defendants
secured their right to challenge those instructions on
appeal. They did not forfeit that right by declining to
acquiesce in the Government-proposed special-verdict
forms. Our decision in Skilling makes it plain that the
honest-services instructions in this case were indeed
incorrect. As in Skilling, ante, at 40–41, we express no
opinion on the question whether the error was ultimately
harmless, but leave that matter for consideration on
remand.14
* * *
For the reasons stated, we vacate the judgment of the
Court of Appeals and remand the case for further proceed
ings consistent with this opinion.
It is so ordered.

——————
13 Renderingthe Seventh Circuit’s forfeiture ruling all the more
anomalous, at the time the trial court settled on the general verdict
form, the Government was no longer pressing its special-verdict re
quest. See App. to Pet. for Cert. 228a.
14 Black contends that spillover prejudice from evidence introduced on

the mail-fraud counts requires reversal of his obstruction-of-justice
conviction. Brief for Petitioners 47–49. That question, too, is one on
which we express no opinion.
 Cite as: 561 U. S. ____ (2010) 1

Opinion of SCALIA, J.

SUPREME COURT OF THE UNITED STATES
_________________

No. 08–876
_________________

CONRAD M. BLACK, JOHN A. BOULTBEE, AND MARK
S. KIPNIS, PETITIONERS v. UNITED STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SEVENTH CIRCUIT

[June 24, 2010]

JUSTICE SCALIA, with whom JUSTICE THOMAS joins,
concurring in part and concurring in the judgment.
I join the Court’s opinion with two exceptions. First, I
do not join in its reliance, ante, at 7, on the Notes of the
Advisory Committee in determining the meaning of Fed
eral Rule of Criminal Procedure 30(d). The Committee’s
view is not authoritative. See Krupski v. Costa Crociere
S. p. A., 560 U. S. ___, ___ (2010) (SCALIA, J., concurring in
part and concurring in judgment) (slip op., at 1). The
Court accurately quotes the text of the Rule, see ante, at 7,
the meaning of which is obvious. No more should be said.
Second, I agree with the Court, ante, at 5, 8, that the
District Court’s honest-services-fraud instructions to the
jury were erroneous, but for a quite different reason. In
my view, the error lay not in instructing inconsistently
with the theory of honest-services fraud set forth in Skill
ing v. United States, ante, p. ___, but in instructing the
jury on honest-services fraud at all. For the reasons set
forth in my opinion in that case, 18 U. S. C. §1346 is un
constitutionally vague. Skilling, ante, p. ___ (SCALIA, J.,
concurring in part and concurring in judgment).
 Cite as: 561 U. S. ____ (2010) 1

Opinion of KENNEDY, J.

SUPREME COURT OF THE UNITED STATES
_________________

No. 08–876
_________________

CONRAD M. BLACK, JOHN A. BOULTBEE, AND MARK
S. KIPNIS, PETITIONERS v. UNITED STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SEVENTH CIRCUIT

[June 24, 2010]

JUSTICE KENNEDY, concurring in part and concurring in
the judgment.
I join the Court’s opinion except for those parts stating
that 18 U. S. C. §1346 “criminalizes only schemes to de
fraud that involve bribes or kickbacks.” Ante, at 5. For
the reasons set forth in JUSTICE SCALIA’s separate opinion
in Skilling v. United States, ante, p. ___ (opinion concur
ring in part and concurring in judgment), §1346 is uncon
stitutionally vague. To convict a defendant based on an
honest-services-fraud theory, even one limited to bribes or
kickbacks, would violate his or her rights under the Due
Process Clause of the Fifth Amendment.