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Nacchio judge's power apparent
Nottingham's rebuke of U.S. attorney draws attention
By Jeff Smith
Rocky Mountain News
December 28, 2005

Federal Judge Edward Nottingham came down hard on U.S. Attorney for Colorado William Leone during former Qwest CEO Joe Nacchio's first pretrial hearing last week, on issues ranging from the absence of a fellow prosecutor to Leone's decision to issue an arrest warrant in the case.  To some court observers, the criticism was striking and perhaps a sign of more tension to come.  To Craig Silverman, a former Denver prosecutor and now defense attorney, the sharpness more aptly reflects the power of the federal judiciary combined with Nottingham's no-holds-barred personality.

A federal judge "is an extremely powerful person who feels no need to be deferential to a U.S. attorney," Silverman said.  "Judge Nottingham is a no-nonsense judge who is not afraid to tell any attorney about any perceived errors."

Nottingham, who has been on the bench since 1989, is known for his short fuse and for asserting his control early.  He also is the only federal judge in the U.S. District of Colorado who wears a blue robe with black stripes rather than the customary black robe.

Nacchio, indicted last week on 42 insider trading charges, is accused of selling more than $100 million of Qwest stock in 2001 while allegedly knowing the Denver telco wasn't doing as well as its stated financial results.  A trial date hasn't yet been set.

It's not unusual for a judge to lose his or her patience with prosecutors or defense attorneys;  federal Judge Robert Blackburn had a few such outbursts during last year's trial of four former midlevel Qwest executives.  But last week it happened right off the bat.

Nottingham sharply criticized Leone for the absence of one of the federal prosecutors who signed the indictment -- Michael Koenig, trial attorney for the Justice Department's Washington-based criminal fraud section.  Leone told the judge that Koenig would be present for future hearings.

Nottingham also questioned why an arrest warrant had been issued for Nacchio instead of a summons to appear in court.  Was Nacchio a flight risk?

Leone answered that he believed it was important "to treat this case as a criminal matter."

Jeff Dorschner, spokesman for the U.S. attorney's office in Colorado, added Tuesday that issuing a warrant is a common practice in the district even when the defendants agree to surrender voluntarily, as Nacchio did.

Dorschner noted arrest warrants also were issued in the case of the four former midlevel Qwest executives, who surrendered voluntarily.  "In (Nacchio's) case, we didn't want the defendant to be treated differently," Dorschner said.

Federal Judge Patricia Coan said there was some evidence Nacchio was a flight risk and, as a result, she set his bond for $2 million and required him to turn over his passport as conditions for his pretrial release.

Silverman said there shouldn't be too much emphasis placed on the first pretrial hearing with Nottingham.

The first hearing "is equivalent of a home plate meeting of managers with the head umpire before the game even starts," Silverman said.  "I don't think one can predict one way or the other how it will play out in the future."

Silverman said it could be more significant that Nacchio is being represented by Herbert Stern, a former federal judge, and he wondered whether Nottingham and Stern had ever met each other at a judicial conference.

Nottingham wouldn't likely recuse himself from the case unless the two were friends, and there were no indications of that during the first pretrial hearing.  Nacchio's next pretrial hearing has been scheduled for Jan. 20.

smithje@RockyMountainNews.com or 303-892-5155

http://rockymountainnews.com/drmn/tech/article/0,2777,DRMN_23910_4345582,00.html