Long wait for Nacchio?
U.S. attorney calls ruling for new trial a 'setback, not a defeat,' ponders next move
By Sara Burnett, Rocky Mountain News (Contact)
Published March 17, 2008 at 11:50 a.m.
Updated March 18, 2008 at 9:18 a.m.
Joe Nacchio
Edward Nottingham
A federal appeals court decision to grant Joe Nacchio a new trial means it could be years before the former Qwest CEO either goes to prison for insider trading or walks away a free - and vindicated - man.
In a 2-1 ruling, a panel of the 10th Circuit Court of Appeals on Monday reversed Nacchio's 2007 insider-trading conviction and sent the case back for a new trial before a different judge.
The panel said U.S. District Judge Edward Nottingham improperly excluded testimony from defense expert Daniel Fischel. Fischel would have told jurors that the inside information Nacchio had when he sold stock was not material and it did not affect the stock price when it was disclosed.
Prosecutors are expected to appeal the decision.
Meanwhile, Nacchio remains free on $2 million bail, though he still faces criminal charges and is not allowed to leave the country.
"We are very gratified and view this as a first step in Joe's ultimate vindication," said his attorney, Herbert Stern.
Nacchio could not be reached for comment, and Stern declined to answer a question on his whereabouts.
Nacchio, 58, who had been charged with 42 counts of insider trading, was convicted last year on 19 counts. He was sentenced to six years in prison, though he was allowed to remain free pending his appeal. He also was ordered to pay a $19 million fine and forfeit $52 million he made by selling stock.
Nacchio's attorneys asked the appeals court last year to acquit him, saying the government didn't prove its case.
But the 10th Circuit judges said the evidence was enough for a jury to convict and that the lone error merited a new trial.
"This is a setback, not a defeat," U.S. Attorney Troy Eid said. "The good news is the Circuit Court said our trial team presented sufficient evidence to convict Mr. Nacchio of insider-trading.
"A divided court ruled that a lone expert witness for the defendant was improperly excluded. We're considering all our legal options in consultation with the Department of Justice."
Prosecutors have several choices: They may ask the three-judge panel to reconsider its ruling, ask the full panel of the 10th Circuit to hear an appeal or begin work on retrying the case.
Less likely scenarios would be an appeal to the U.S. Supreme Court, dropping the charges or reaching a plea deal with Nacchio.
The government could take weeks to decide its next step. Any appeal could take several more months, and it's unlikely a new trial would occur within the next year.
Maureen Mahoney, Nacchio's appellate attorney, said if the case is retried, she expects an acquittal.
"The additional evidence will establish beyond any doubt that Mr. Nacchio did not commit a crime," she said.
During a monthlong trial last year, prosecutors argued that Nacchio knew when he sold stock between January and May 2001 that Qwest was relying too much on one-time sales of space on its fiber-optic network.
Former executives testified they repeatedly warned their boss that the revenue targets the company was giving Wall Street were too aggressive and could not be met.
Nacchio's defense countered that the execs were referring not to public targets but to higher internal goals. His attorneys portrayed Nacchio as a hard-driving leader who believed Qwest could meet them.
In his appeal, Nacchio's attorneys said Fischel's excluded testimony went to the heart of their case.
Nottingham ruled the defense did not disclose enough information to prosecutors about the methodology of Fischel's argument. He allowed Fischel to give a summary of Nacchio's stock sales, but no economic analysis.
Two 10th Circuit judges - Paul Kelly and Michael McConnell - said Nottingham erred when he excluded Fischel. Judge Jerome Holmes dissented, saying Nacchio's attorneys had the burden of requesting a hearing on the exclusion but didn't do so.
Defense attorneys also argued that Nacchio was not allowed to present his "classified information defense."
Nacchio claimed that Qwest was in line to receive large, top-secret government contracts. He suggested the deals were pulled after Nacchio refused to go along with a government phone-spying program.
Nottingham ruled the defense was not relevant, preventing Nacchio's attorneys from presenting it. After the trial, lead prosecutor Cliff Stricklin told the Rocky Mountain News the defense was "a lie."
All three 10th Circuit judges ruled Nottingham was right to exclude it.
If the case is retried, the judges granted Nacchio's request that a different judge should hear it.
While the judges wrote that they don't believe Nottingham had a personal bias against Nacchio, they said: "After reading the trial transcript, we have concluded that it would be unreasonably difficult to expect this judge to retry the case with a fresh mind."
John Holcomb, a professor at the University of Denver, predicted the verdict at a new trial will be the same.
"It may be a wash for the jury, or Nacchio will appear even guiltier. This may simply delay the day of reckoning for Nacchio."
burnetts@RockyMountainNews.com or 303-954-5343. Staff writer Jeff Smith contributed to this report.
Pending charges
Former CEO Joe Nacchio made 19 illegal trades of Qwest stock in April and May 2001, based on information not disclosed to investors. Appellate judges overturned his conviction, but those charges stand.
* The charges carry a maximum penalty of 10 years in prison and a fine of up to $1 million for each trade. Prosecutors will seek forfeiture of $52 million in stock proceeds.
* Nacchio was acquitted on 23 counts of insider trading between Jan. 2, 2001, and April 2001. (Those charges can't be resurrected in a second trial).
* Prosecutors allege that Nacchio accelerated his stock sales in 2001 at a time when he knew the company's revenue targets were "overly aggressive." Qwest allegedly scrambled to fill revenue gaps by entering into one-time sales and swaps of communications capacity.
* Nacchio's defense claims he sold stock to diversify his holdings. Some of the stock sales also were pre-arranged.
The Appeals Court judges
PAUL J. KELLY
Nominated by President George H.W. Bush in 1991. Graduate of Fordham University School of Law and former Republican state representative from New Mexico. He was on the three-judge panel that upheld the conviction and death sentence of Oklahoma City bomber Timothy McVeigh.
* Ruled Nacchio case should be sent back for a new trial.
MICHAEL W. MCCONNELL
Nominated by President George W. Bush in 2001. Graduate of University of Chicago Law School, the alma mater of Nacchio appellate attorney Maureen Mahoney and U.S. Attorney for Colorado Troy Eid. Former assistant to the solicitor general. In 2005, he was rumored to be on the short list for a seat on the U.S. Supreme Court.
* Ruled Nacchio case should be sent back for a new trial; wrote majority's 60-page opinion.
JEROME A. HOLMES
Nominated by President Bush in 2006. Is the newest judge to join the 10th Circuit Court of Appeals and its first black judge. Graduate of Georgetown University Law Center. Earned a master's of public administration from Harvard. He was part of the team that prosecuted McVeigh and Terry Nichols.
* In a 14-page dissent, affirmed Nacchio's conviction and said he shouldn't receive a new trial.
The decision
A three-judge panel ruled 2-1 that Joe Nacchio should get a new trial. Some highlights of the rulings:
* A defense expert, professor Daniel Fischel, was improperly excluded from testifying that Nacchio's inside information didn't affect Qwest's stock price. Two judges said it was an error that justified a reversal of the conviction and retrial. One judge disagreed, saying he would uphold the conviction.
* All three judges agreed that Nacchio's "classified information" defense - that he had top-secret information Qwest was going to land lucrative government contracts - was not a valid basis for appeal.
* The government's evidence was "sufficient for the government to try him again without violating the Double Jeopardy Clause," the judges said.
* A new trial should be heard by a different judge, because the panel concluded "it would be unreasonably difficult to expect (U.S. District Judge Edward Nottingham) to retry the case with a fresh mind."
What's next?
Government prosecutors have several options, and it could be weeks before they decide what to do. The options are:
* Ask the three-judge panel to reconsider its decision
* Appeal to the full 10th Circuit
* Retry the case
* Try to negotiate a plea deal with Nacchio
* Drop the charges or appeal to the U.S. Supreme Court
Meanwhile, Nacchio remains free on a $2 million bond. His attorney declined to comment on his whereabouts, although bets are he's at his 14,000-square-foot Mediterranean-style estate near Palm Beach, Fla.
Timeline
* Late 1996: Joe Nacchio, an AT&T executive passed up for the top job, is hired to head Qwest Communications by founder Phil Anschutz. * June 1997: Nacchio takes Qwest public. The stock price jumps from $22 to $28 the first day of trading.
* July 1999: Qwest, which has built a nationwide fiber-optic network, announces a $48 billion deal to merge with U S West.
* March 2000: Qwest stock, which has split twice, hits a peak price of $66. A month earlier, Nacchio declares Qwest to be the "new Internet communications company of the net decade."
* June 2000: Qwest finalizes its merger with U S West. The company has a market value of more than $80 billion, 71,000 employees and $18 billion in annual revenue. Nacchio says the company expects growth of 15 percent to 17 percent a year.
* December 2000: Stock is down to $32 a share, when Nacchio insists Qwest will continue to meet or beat projections. Nacchio sells $93.4 million worth of stock in 2000.
* January-May 2001: Nacchio sells $100.8 million of stock. Qwest makes its projections, but in part by booking revenue upfront from sales and swaps of telecommunications capacity.
* June 2001: Morgan Stanley analysts begin to question some of Qwest's financial maneuvers. Nacchio calls the report "hogwash."
* September 2001: Qwest lowers revenue projections and announces plans to cut 5,000 jobs. The announcement comes a day before the Sept. 11 terrorist attacks.
* March 2002: Qwest announces it is under investigation by the Securities and Exchange Commission for its fiber-optic capacity sales, equipment sales and Dex directory publishing accounting.
* June 2002: Nacchio is ousted. During his 51/2-year tenure, he made more than $300 million in option profits and compensation.
* July 2002: Qwest is under criminal investigation.
* October 2002: Nacchio testifies in front of a congressional committee investigating fiber-optic capacity swaps. He said the capacity swaps were done for legitimate business reasons. Congressional investigators conclude that Qwest engaged in some sham transactions to boost revenue.
* December 2005: Nacchio is indicted on 42 counts of insider trading.
* May 2007: Nacchio is convicted on 19 counts of insider trading in connection with $52 million of stock sales in April and May 2001, after a five-week trial.
* July 2007: Nacchio is sentenced to six years in prison, fined $19 million and ordered to forfeit $52 million. He has remained free pending appeal.
* December 2007: Nacchio's case goes to a three-judge panel of the 10th Circuit Court of Appeals.
* March 2008: The appellate panel orders a new trial, saying an expert witness for the defense shouldn't have been excluded from testifying.
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March 17, 2008
12:01 p.m.
Suggest removal
BeachNut writes:
what do you bet old joe is laughing in his cornflakes this morning?
March 17, 2008
12:05 p.m.
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timeandagain writes:
This has been a bad few weeks for Judge Nottingham!!
March 17, 2008
12:09 p.m.
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blacksho89 writes:
Naughty, naughty Nottingham!
March 17, 2008
12:16 p.m.
Suggest removal
pegasus99_aka_DR writes:
Hmmm - this smacks of Joe having paid enough money to someone to get a new trial - if so, we see that it's "truth and justice for all (who can afford it) in America. The nacho-man will never spend a minute behind bars for his crimes. Just too sad.
March 17, 2008
12:25 p.m.
Suggest removal
Vulcan writes:
At least the Court of Appeals understands the law and is willing to apply it properly. America must remain a country governed by the Rule of Law and not overzealous prosecution of individuals due to emotion.
March 17, 2008
12:33 p.m.
Suggest removal
HolierThanThou writes:
The federal government failed to turn over exculpatory evidence that probably would have showed that Qwest was blacklisted from federal telecommunications bids. Nacchio refused to illegally turn over customers' phone records to the Bushco spooks. He was one of the few CEOs to stay on the side of the law on this account.
CEOs who handed over customers' phone records to the government without a warrant are the ones who really deserve to be prosecuted and jailed.
Obviously, Joe Nacchio, like most other American CEOs overpaid himself and effectively robbed both his company and his customers. But this is an undeveloped area of law. American CEOs are legally allowed to act like moronic little emperors and tax their companies to death by paying themselves obscene and unearned bonuses. This is robbery.
However, on point of law, the government made a flimsy claim that the telecommunications bidding information was a national secret. Judge Nottingham, a notorious drunkard whose intoxication was clearly evident on the bench, bought that crap and opened the door wide for overturning the verdict.
Next trial, the judge must insist on the government producing that bidding information, and internal government memos showing how they treated Nacchio's refusal to voluntarily violate the FISA Act. Much investigating and grand jury indictments are yet to be filed in all directions on this case.
March 17, 2008
12:35 p.m.
Suggest removal
mytwosense writes:
I greatly admire Nacchio for taking a stand against turning over our phone call records to Bush & Co. And maybe indeed his legal troubles are retaliation for that decision.
But, I don't know if he isn't indeed guilty of insider trading. An awful lot of Qwest employees seem to think he is...
March 17, 2008
12:44 p.m.
Suggest removal
pegasus99_aka_DR writes:
twosense - and that's exactly where I'm coming from. I work in the telecom industry and have a large number of friends and acquaintances who insist without reservation that Joe is guilty of insider trading, and many can quote date, time, and verse of comments he made implicating himself in such. Now, no, it wouldn't surprise me if there were coercion by the Feds involved too as punishment for not turning over records, and if so, the authorities involved should be prosecuted under the law, all the way up to Shrub - but even if so, it doesn't necessarily mean that Nacchio didn't commit insider trading.
March 17, 2008
12:56 p.m.
Suggest removal
Solpatroller writes:
Nacchio is as guilty as anyone can be. Anyone with half a brain knows that. So he gets a new trial. They will still get him and it won't be soon enough before he's in orange living at Club Fed.
The problem with him is he believes his own lies and because he is insulated by cash, he truly thinks he is innocent of any wrong doing.
March 17, 2008
1:12 p.m.
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BMat writes:
Was there ever any doubt that the rich and powerful can buy their own justice in Colorado?
March 17, 2008
1:24 p.m.
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anya writes:
Don't you just love the justice system for the wealthy in what's left of the United States? Why bother even giving them a trial in the first place?
Think of the poor jurors from the last trial, wasting all of those weeks listening to the evidence, making a decision in the jury room, and then having all of that thrown out just because joe is rich.
This makes me feel disgusted.
March 17, 2008
1:27 p.m.
Suggest removal
psu96 writes:
marinegrunt, stay a grunt
March 17, 2008
3:03 p.m.
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dano writes:
Judge Nottingham is an idiot. Look at the transcripts. This is bad news for The Bench. They'll be on the bench for awhile.
March 17, 2008
3:08 p.m.
Suggest removal
peteSmith writes:
Recall that Judge Nottingham ( http://www.knowyourcourts.com/Notting... ) pointed out to Nacchio last summer:
"If it is perceived that there is one law for the rich and one law for everybody else, the law will ultimately fall into disrespect”
(transcript excerpt at: http://www.knowyourcourts.com/Notting... ). Indeed, this was already the case (as Nottingham knew). Thus, it should be no surprise that, because of the high profile nature of the appellant, the Nacchio decision is "published." ( To learn more about "unpublished opinion practice, see http://www.nonPublication.com ) Conversely, neither the trial court nor the appeals court had the time or inclination to read no-name litigants' briefs, as alleged in the recent Harrington v. Nottingham complaint (See http://www.rockymountainnews.com/news... ).
Illustrating the two-track system of justice, Michael McConnell authored a sixty (60) page page opinion for this high-profile U.S. v. Nacchio case. Conversely, he (or, more likely, a law clerk) wrote a three-and-a-half page memorandum opinion in Harrington v. Wilson that misrepresented the facts, regurgitated the magistrate's recommendations and was clearly the product of not reading any of the briefs (Harrington's, the defendants' or even the operative Complaint), as evidenced by the fact that it did not address any of the arguments. (See http://www.knowyourcourts.com/Harring... ). The same, perhaps, could be said for Suzanne Shell's case, Shell v. DeVries (a five page opinion, also authored by McConnell - (avail. at http://www.knowyourcourts.com/Shell/0... ). And see Robert A. Mead, "Unpublished" Opinions as the Bulk of the Iceberg: Publication Patterns in the Eighth and Tenth Circuits of the United States Courts of Appeals, 93 Law Libr.J. 589 (2001) (avail. at http://www.secretjustice.org/pdf_file... ); William Glaberson, Caseload Forcing Two-Level System for U.S. Appeals, N.Y. Times, Mar. 14, 1999, at A1; Penelope Pether, The Scandal of Private Judging in the U.S. Courts, 56 Stan. L. Rev. 1435 (2004) (avail. at http://www.nonpublication.com/pether.txt ).
Should it be any surprise that McConnell has very limited time to properly review all cases assigned to him? To Judge McConnell, a prolific author and, who is listed as a professor at not one but three universities (Harvard, Stanford, and the University of Utah), I surmise that the federal bench scarcely qualifies as a part-time job.
To learn more about the two-track system, see http://www.knowyourcourts.com/Archive...
March 17, 2008
3:30 p.m.
Suggest removal
jjez writes:
Isn't the gist of insider trading the fact that the person (Joe in this case) had knowledge not publically available to investors that could impact the price of said stocks? The attempted basis of his defense was that he had inside knowledge of supposed potential gov't contracts. Information that was not available to the general public. What part of insider trading is this not? And he wasn't even convicted on ALL the counts, so what Fischel says could apply to those he WASN'T convicted of. But I sincerely believe that Joe took over USWest for the sole purpose of getting all that he could and getting out. Management has traditionally shared benefits with the contracted employees, such as health care. When Joe took over, he cut that benefit so now management employees have to pay for their health care program. He screwed around with other things as well, that I won't go into. Basically, he really is a scumbag that needs to be sent up and stripped of all benefit he gained by raping the company.
March 17, 2008
4:03 p.m.
Suggest removal
FormalistAesthete writes:
An expert witness is usually someone who testifies favorably for whomever pays him. Professional witness would be a more accurate title.
March 17, 2008
5:36 p.m.
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TRUTHINGOVT writes:
Most Colorado State and Federal Courts follow NO rule of law.
Colorado judges have for years ignored the rule of law and
simply uphold and affirm the lower courts, thats the TRUTH!
The message being sent to Judge Nottingham by his co-conspirators
(I mean judges) is your OUT NOTTINGHAM!! Your no longer part of
the "Good Ol Boy Network". Imagine being thrown out of the good
ol boy network!
No sympathy here Nottingham! Most judges are corrupt, they just
have not made the egregious mistakes of the old drunk, pimp
judge Nottingham.
March 18, 2008
12:15 a.m.
Suggest removal
peteSmith writes:
Looks like this story is tied to the ongoing Nottingham scandal in more ways than has already been suggested:
An interesting aspect of this case outcome is that the Tenth Circuit took the unusual step of applying the Mitchell v. Maynard three-part test to determine that reassignment to a new judge is warranted, despite noting that there was no actual or perceived bias. Slip Op. at 59-60.
One reporter commented to me this evening that someone from within the court noted that this is one of their not-so-subtle ways of hinting to Nottingham that he needs to step down (resign).
March 18, 2008
6:47 a.m.
Suggest removal
TW writes:
Three Bush judicial appointees order a new trial for one of their own, overturning a judge with a record of almost never being overturned.
Nottingham, although deeply flawed personally, spoke the truth when he said "If it is perceived that there is one law for the rich and one law for everybody else, the law will ultimately fall into disrespect”.
Scooter Libby, now this. More of the same from the most corrupt administration in American history.
Check your dollars today against all of the other world currencies. Once the standard for the world, nobody wants the dollar now. Take a look at your bank account being drained with $110 barrel oil prices with no alternative. Look at $12 billion a month going to Iraq to keep Muslims from killing each other.
Welcome to Bush's America.
March 18, 2008
7:24 a.m.
Suggest removal
Vulcan writes:
The Court of Appeals is correct in overturning this verdict.
For anyone crying about double standards of justice they should look to the system itself.
The reason most decisions do not get overturned or seriously considered on appeal is because most defendants do not have the resources to fight back. This is a chilling indictment of a system that is no longer about justice but about making needing a huge amount of resources in order to defend oneself against a government with unlimited resources.
When a defendant has the ability to fight back this levels the playing field and the government, with their unlimited resources, does not like the fact that they are now playing on a level field.
Work to change the system and see that all defendants get a level playing field.
March 18, 2008
8:14 a.m.
Suggest removal
Firefox writes:
Froward69 only someone who served this country or is serving this country in the armed forces is given the right to say Jarhead, so what branch and unit did you serve with? If not shut your mouth and stick to the story which is clear money buys privelege, nothing new just the facts this guy is guilty but he has money period simple. Nothing to do with Republican or Democrat!
Semper fi Grunt.
March 18, 2008
1:24 p.m.
Suggest removal
Theoldguy writes:
Nacchio is an embarrassment to the government, legal system and corporate America. To fix this mess Uncle Joe will be free to wander around until the American version of Anton Chigurh shows up to set things straight. In a few years no one will remember Joe's name or even care.
March 18, 2008
2:20 p.m.
Suggest removal
peterpi writes:
I'm glad to see that the appeals court, while requiring a new trial for Nacchio, shot down one of his cleverer attempts. Nacchio argued that he needed certain top secret evidence to prove his innocence. So he tried getting it. He knew the Bush Administration wouldn't have let him have it, and the judge would have had to declare a mistrial.
Nice try, Nacho Man, but the court saw right through you.
I do believe he got busted for refusing to play ball on the wiretaps. But just because he has some principles doesn't mean he didn't engage in financial hanky-panky