Numerous outcomes possible for ruling on Nacchio
Even if the conviction of the former Qwest CEO is upheld, a
three-judge panel may still get the case back.
By Andy Vuong
Thursday, December 11, 2008
When the full 10th Circuit Court of Appeals rules on former
Qwest chief executive Joe Nacchio's appeal of his
insider-trading conviction, some issues may remain unresolved.
If the court, which could render its decision any day, affirms
the conviction, the case may still be sent back to the
three-judge panel that initially heard the appeal to review
Nacchio's challenge of his prison sentence.
Nacchio contends that the 72-month prison term should be
shortened to 41 to 51 months. He also is seeking to reduce
the $71 million in forfeitures and fines he was ordered to pay,
calling the amount excessive.
It's possible, but unlikely, that the full court would rule on
those challenges as part of its review of the case, according to
"If the panel didn't address them, it's unlikely the en banc
(full) court would address them," said Blain Myhre, an appellate
lawyer with Isaacson Rosenbaum in
In ruling 2-1 to toss out the conviction in March, the initial
panel said it was unnecessary to review the sentencing matter
because Nacchio would "have to be sentenced anew if he is
Nacchio was convicted last year on 19 counts of illegal insider
trading connected to his sale of $52 million in Qwest stock in
early 2001. He was acquitted on 23 related charges.
After the initial panel overturned the conviction and ordered a
new trial, the full appeals court granted the government's
request last summer to rehear the case.
At issue is whether the trial judge hindered Nacchio's right to
a fair trial by wrongfully excluding expert testimony from a
defense witness. The panel ruled that he did, and the full
court could agree and toss out the conviction, granting Nacchio
a new trial. The court could also return the case to the
district court to hold a hearing to determine whether the
testimony should have been allowed during trial, an unlikely
Both sides would have 90 days after the ruling to petition to
have the case heard by the Supreme Court, a rare occurrence.
The parties could seek a 60-day extension to make such a
Appeals can last from months to years. The initial panel
ordered an expedited appeal after granting Nacchio's request to
remain free on bail, an indication that the full court would
consider the case at a similar pace.
The panel rendered its decision three months after hearing oral
arguments. The full court held oral arguments nearly three
months ago, in late September.
"I think most people probably assume that they're also going to
expedite the release of their decision," said Marcy Glenn, head
of appellate practice at Holland & Hart.
Glenn stressed that there is no timetable for a decision.
The full review could take longer because there are nine judges
instead of three.
If the conviction is affirmed, the government could request that
the court revoke Nacchio's bond and order him to report to
U.S. District Judge Edward Nottingham sentenced Nacchio to 72
months in prison based on the gain from his illegal insider
trades, pinned at $28 million after fees. Nacchio argues
that he gained $1.8 million. A resentencing would have to
be assigned to another district judge because
has since resigned.