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Nacchio attorneys request hearing on testimony
By P. Solomon Banka, AP Writer
Denver Post
Tuesday, April 28, 2009

DENVER Attorneys for Qwest CEO Joe Nacchio are asking a judge for a hearing to consider new testimony from the prosecution's star witness that they say would prove their client's innocence.  In documents filed Tuesday in U.S. District Court, attorney Maureen Mahoney says testimony given by former Qwest Chief Financial Officer Robin Szeliga as part of a civil case clarifies testimony at Nacchio's criminal trial in 2007.

Szeliga was deposed Feb. 4 in a pending civil case filed by the Securities and Exchange Commission against Nacchio and other Qwest executives.  Mahoney says Szeliga testified then that the projected internal revenue shortfalls were much smaller than those alleged by prosecutors during the trial.

Szeliga testified during the deposition that Nacchio was warned of an immaterial 1.4 percent shortfall, Mahoney said, not the bigger risk of a 4.2 percent shortfall that jurors used to consider whether Nacchio sold his stock to avoid losses when Qwest's stock tanked because it failed to meet its financial guidance.

Mahoney said such evidence is not only material to the core legal issue in the case, but it "demonstrates that Nacchio is innocent of the crime for which he was convicted."

Nacchio was convicted in 2007 of 19 counts of insider trading and acquitted of 23 counts.  Prosecutors said he sold $52 million worth of stock in 2001 based on nonpublic information that Denver-based Qwest Communications International Inc. faced trouble meeting its sales targets.  He was acquitted on 23 other counts of insider trading.

A three-judge panel of the 10th U.S. Circuit Court of Appeals overturned the conviction, but the full court reinstated it last month.  Nacchio's attorneys filed an appeal to the U.S. Supreme Court on March 20, raising questions about the fairness of the trial judge.

Jeff Dorschner, a spokesman for the U.S. attorney's office in Denver, said prosecutors could not comment on Mahoney's filing.  In previous filings, government prosecutors objected to Szeliga's February testimony on procedural grounds.

"Where evidence exonerates a criminal defendant, it is incumbent upon the Department of Justice to take affirmative steps to vacate the conviction, not conjure up faux procedural obstacles to keep an innocent man in prison," Mahoney wrote.

No hearings on Mahoney's request have been set.

Nacchio reported to a minimum-security prison camp in Minersville, Pa., on April 14.

The Minersville camp is a satellite facility of the Federal Correctional Institution, Schuylkill.

http://www.denverpost.com/search/ci_12248157