Judge assignment could aid Nacchio appeal

By Sara Burnett, Rocky Mountain News (Contact)

Published December 10, 2007 at 11:16 a.m.
Updated December 10, 2007 at 11:16 a.m.

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The same three appellate judges who ruled Joe Nacchio could remain free pending his appeal will hear his case next week, the 10th Circuit Court of Appeals announced today.

The assignment could be favorable to the former Qwest CEO because the judges already decided when they said he didn't have to report immediately to prison that there is "a substantial question of law or fact" that could lead to a reversal of his April conviction.

The oral arguments in the case are scheduled for 2 p.m. on Dec. 18. The case is being heard on an expedited basis, though no deadline for a decision has been set, and the three-judge panel may issue its ruling at any time. They may acquit Nacchio, send the case back for a new trial or uphold his insider-trading convction.

The judges are:

Paul J. Kelly, nominated in 1991 by President George Bush. He is a graduate of Fordham University School of Law who served as a New Mexico state representative before working in private practice.

Michael W. McConnell, nominated by President George W. Bush in 2001, and a former assistant to the solicitor general in the U.S. Department of Justice. He is a graduate of the University of Chicago School of Law -- the alma mater of both U.S. Attorney for Colorado Troy Eid, whose office prosecuted the case, and Nacchio appellate attorney Maureen Mahoney.

Jerome A. Holmes, nominated by Bush in 2006 and the newest judge to join the 10th Circuit Court of Appeals. He is a former assistant U.S. attorney for the western district of Oklahoma and attended Georgetown University Law School.

The 10th Circuit generally assigns judges randomly to hear cases, and it was unknown whether the same judges who heard the request for bond pending appeal would also hear the appeal itself. One factor in the decision may have been the expedited nature of the case; the three judges who heard the first request already were familiar with the volumes of transcripts and appellate issues raised by the two sides.

A jury convicted Nacchio of 19 counts of insider trading for selling Qwest stock in April and May 2001, when prosecutors said he knew the company was heading for financial trouble. U.S. District Judge Edward Nottingham sentenced him to six years in prison and ordered he pay a $19 million fine and forfeit the $52 million the judge said he made on the sales.

Nacchio's attorneys say there were several errors during the case, from jury instructions to the decision by Nottingham not to let a defense expert testify. They are asking for an acquittal, a new trial, or for the appellate court to reduce his sentence.

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