Judge denies new trial for ex-Qwest CEO Nacchio

Catherine Tsai

The Associated Press
January 13, 2010

DENVER -- A federal judge in Denver has denied former Qwest CEO Joseph Nacchio's request for a new trial on insider trading charges.

Prosecutors said he sold $52 million worth of stock in 2001 while knowing that Denver-based Qwest Communications International Inc. risked missing its publicly stated sales targets. Nacchio was sentenced in 2007 to six years in prison and was ordered to pay $71 million, but he has appealed the sentence.

Nacchio also argued he deserved a new trial because testimony former Qwest Chief Financial Officer Robin Szeliga gave in a more recent deposition in a related civil case differed from testimony she gave at Nacchio's trial.

U.S. District Judge Marcia Krieger ruled Tuesday that the testimony wasn't substantially different and probably wouldn't lead to an acquittal.

Szeliga testified at trial that she warned Nacchio that Qwest might miss a 2001 revenue target by almost $1 billion, but there was ambiguity over whether the warning referred to Qwest's publicly stated sales target or a higher internal goal, Krieger wrote.

Nacchio's attorneys argued that Szeliga's warning referred to the higher target, and that the projected shortfall was small enough that it didn't have to be publicly disclosed.

Krieger ruled Tuesday that overall, Szeliga's newer deposition testimony was as ambiguous as her trial testimony, both of which were given years later. The judge said Szeliga testified at the deposition that her memory of the events was fading and that Szeliga did not recant her trial testimony during the deposition.

The U.S. Supreme Court last year declined to review the case.

Nacchio is still fighting a related civil complaint filed by the Securities and Exchange Commission.

Meanwhile Krieger is reconsidering Nacchio's sentence in the criminal case following a 10th U.S. Circuit Court of Appeals ruling last year that the sentence was too harsh.

Nacchio was originally fined $19 million and was ordered to forfeit $52 million in proceeds from his stock sales. Prosecutors and Nacchio's attorneys said in court documents filed Tuesday that the amount that could be subject to forfeiture should be $44.6 million, which strips out Nacchio's costs associated with the stock sales.

However, Nacchio's attorneys said he only gained $1.8 million at most from knowing the alleged insider information. Prosecutors argued that what Nacchio gained can be calculated multiple ways but was at least $32 million.