Appeals court names panel in Nacchio case
Same 3 judges who OK'd bail to review conviction
By Sara Burnett
Rocky Mountain News
Tuesday, December 11, 2007
The same three appellate judges who ruled that Joe Nacchio could
remain free pending an appeal of his conviction of insider
trading will hear his case next week, the 10th Circuit Court of
Appeals announced Monday.
That could favor the former Qwest CEO because the judges already
decided when they granted Nacchio's request to stay out of
prison that there was "a substantial question of law or fact"
that could lead to a reversal of his April conviction.
"Nacchio has to be very happy," said Jay Brown, a University of Denver
law professor who has followed the case.
The judges already have drawn some conclusions about the case
and are sympathetic to Nacchio, Brown added.
But Marcy Glenn, head of the appellate practice group for the
Holland & Hart law firm, didn't think one should read too much
into the fact that the panel is the same.
"The earlier decision was an interim decision, and it was made
before there were any briefings on the merits of the case,"
Glenn said. "I would expect (the three-judge panel) to be
absolutely open to all arguments at this point."
Oral arguments are scheduled for 2 p.m., Dec. 18. The case
is being heard on an expedited basis, though no deadline for a
decision has been set and the panel may issue its ruling at any
They could acquit Nacchio, send the case back for a new trial or
uphold his conviction.
The judges, all of whom are based in areas of the 10th Circuit
outside Colorado, are Paul J.
Kelly, Jerome A. Holmes and Michael W. McConnell. Kelly
was nominated by President George H.W. Bush in 1991, while
McConnell and Holmes were nominated by President George W. Bush.
The 10th Circuit generally assigns judges randomly to hear
cases. It was unknown until Monday whether the same judges
who heard the request for bail pending appeal would also hear
the actual appeal.
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 some of the issues raised by the two
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 Nacchio to six
years in prison and ordered him to pay a $19 million fine and
forfeit the $52 million the judge said he made on the stock
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 a sentence
Former Qwest CEO Joe Nacchio's appeal of his insider-trading
conviction will be heard next week:
* When: 2 p.m., Dec. 18
* Where: Byron White U.S. Courthouse, 1823 Stout St., Courtroom 1.
* What to expect: Each side will get 15
minutes to argue its case. Judges likely will ask
questions based on the briefs already filed and the arguments.
A ruling will be issued at a later, undetermined date.
* If you go: Public seating will be on a
first-come, first-served basis, with the courtroom opening at 1
p.m. An audio feed of the proceedings will play in an
overflow courtroom. All visitors must present a valid
* Paul J. Kelly: Born 1940 in Freeport, N.Y.
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
* Michael W. McConnell: Born 1955 in Louisville, KY.
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.
* Jerome A. Holmes: Born 1961 in Washington. 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
Earned a master's of public administration from Harvard.
He was part of the team that prosecuted McVeigh and Terry
Staff writer Jeff Smith contributed to this report.