TORONTO - There's virtually no chance Conrad Black will be sent to a U.S. jail after he is sentenced for fraud and obstruction of justice in one week, but that doesn't necessarily mean he'll be able to stay at his Florida home until the end of his appeal.
"The greatest likelihood is nobody's reporting to jail on Dec. 10 and nobody's going to be spending any of the holidays behind bars,'' said Jacob Frenkel, a former U.S. prosecutor who has been following the case.
"In most of these high-profile cases where the judges have recognized the certainty of an appeal, the defendants have been permitted to stay out of jail through the first round of appeals.''
Black, once the head of the world's third-largest newspaper empire, is awaiting sentencing on Dec. 10 for his part in a fraud involving his former company, Hollinger International. Three other former executives were also convicted on fraud counts in July.
Black is currently free on bail, but his travel is restricted to the area around the courthouse in Chicago and to Florida, where he owns a home.
While most lawyers agree Black in unlikely to start serving any time immediately after the sentencing, some disagree about whether he will be allowed to stay out on bail pending the full appeal.
"My best guess is that she won't take him into custody at sentencing (but) I don't think that the judge is going to allow him to stay out on bond pending appeal,'' said Douglas McNabb, a senior principal with McNabb Associates, a Houston law firm specializing in white-collar crimes.
The appeal process can take up to a year and in order for defence lawyers to allow a defendant to spend that time outside of jail, they must convince the court the appeal has a good chance of succeeding.
Black's New York-based appeals lawyer, Andrew Frey, has said in the past he "hopes and expects'' Black will be granted bail pending the appeal, but that decision will rest with the courts.
But Judge Amy St. Eve has already struck down Black's request for an acquittal or a new trial, and U.S. lawyers say appeals have an 80 per cent failure rate in that country.
"(Defendants) usually are not allowed to stay out on bond pending appeal, because you have to show there's a substantial likelihood you're going to win _ and that doesn't happen very often,'' McNabb said.
If Black is allowed to remain free on bail Dec. 10 but asked to surrender at a later date, he will likely have about six weeks to do so.
That time will allow him to get his affairs in order, but also give the U.S. Federal Bureau of Prisons the time it needs to figure out where to place him.
Since Black gave up his Canadian citizenship to join the British House of Lords, he cannot opt to serve his sentence in Canada, nor is he eligible for a minimum security prison in the U.S.
The Bureau of Prisons will take about a week to decide where Black should be placed, taking into account a number of factors, including proximity to his family, the seriousness of the offence and the length of jail time.
Whatever the location, it will be "a controlled environment within a prison setting'' and have "barbed wire ... and a chain link fence,'' McNabb said.
Black has maintained his innocence throughout the proceedings, recently telling BBC Radio in the U.K. he was "an innocent man fighting for his life.''
He also acknowledged that jail time was "a distinct possibility'' and he will "cope with it ... if it comes to that.''
One lawyer suggests Black may want to begin serving his sentence fairly soon after sentencing, even though he believes he can get bail pending sentencing.
"Theoretically it makes no difference but it helps on the appeal, the optics of it,'' said James Morton, the president of the Ontario Bar Association and a lawyer for Steinberg Morton Hope & Israel.
"It makes him more genuine, somehow, in the eyes of the appellate court.''
Prosecutors are seeking US$17 million in payments from Black and his longtime business associates, Jack Boultbee and Peter Atkinson. Black faces up to 30 years in prison, although he's likely to get at most half of that time.
