Government files appeal in Nacchio case
By Andy Vuong
Thursday, May 1, 2008
Article Last Updated: 04/30/2008 05:18:55 PM MDT
The Justice Department today appealed a three-judge appellate
panel's decision to overturn the criminal insider-trading
conviction of former Qwest chief executive Joe Nacchio.
The government cited two reasons that warrant an "en banc"
review — or a rehearing of the case by the 12 active judges in
the 10th U.S. Circuit Court of Appeals. The panel ruled in
March that Nacchio should get a new trial because the trial
judge erred by not allowing expert testimony from a defense
First, the government challenged the panel's ruling that the
district judge "lacks discretion to exclude expert testimony,
even where the government's motion to exclude the evidence
challenges the expert's reliability and the defendant's written
opposition makes no showing of reliability and does not request
an evidentiary hearing."
Second, the government argued against the panel's conclusion
"that an economic expert must be permitted to provide 'context'
about 'economic concepts' even if the jurors already understand
"The panel's decision not only departs from precedent, but
threatens to restrict district judges' traditional and important
discretion to exclude unsupported expert opinions and
unnecessary economic commentary," Justice Department attorney
Stephan Oestreicher wrote in the petition for rehearing.
The appellate panel ruled 2-1 to toss Nacchio's conviction
because U.S. District Judge Edward Nottingham wrongfully
excluded expert testimony from Northwestern University law professor and private
consultant Daniel Fischel.
"We conclude that on the record before him the district judge
was wrong to prevent Professor Fischel from providing expert
analysis and that this error was not harmless," the ruling
Nacchio was convicted in April 2007 on 19 counts of illegal
insider trading connected to his sale of $52 million in Qwest
stock. He was acquitted on 23 other insider-trading charges.
Nacchio, who was indicted in December 2005, has remained free on
$2 million bail throughout the legal proceedings.
Andy Vuong: 303-954-1209 or