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Nacchio's lawyers fight bid for full court review

By Jeff Smith, Rocky Mountain News (Contact)

Published May 15, 2008 at 2:59 p.m.

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Joe Nacchio's attorneys on Thursday argued that the government's request for a full appellate court review of the former Qwest CEO's insider- trading case isn't warranted and should be denied.

A three-judge appellate panel in March reversed Nacchio's conviction and ordered a new trial.

Prosecutors then asked the full 10th Circuit Court of Appeals to review the case and reinstate the 2007 conviction.

In a filing Thursday, Nacchio appellate attorney Maureen Mahoney maintained that the panel's decision "does not create any conflict between the circuits or raise an issue of broad significance that might merit" a full court review.

Should the court decide to grant the government's petition, it then would only be fair to review the entire case, including whether the evidence presented by the government at Nacchio's trial last year was sufficient, Mahoney added.

Jeff Dorschner, spokesman for the U.S. Attorney's Office in Colorado, said the office was reviewing the filing and had no comment.

The appellate panel had ruled 2-1 that Nacchio deserved a new trial because trial Judge Edward Nottingham had improperly prevented defense witness Daniel Fischel from providing expert testimony.

Prosecutors had countered that a district judge has the discretion to exclude "unsupported expert opinions and unnecessary economic commentary."

The next step is for the full 10th Circuit, which includes 12 active judges, to decide whether to review the case.

Nacchio was convicted last year of 19 counts of insider trading in connection with selling $52 million of stock in April and May 2001 based on information withheld from investors. He was sentenced to six years in prison but has been free on $2 million bail pending appeal.

Fischel would have testified that Qwest's stock price wasn't significantly affected when the information in question was finally disclosed.