Nacchio still in
Experts say it's likely that the ex-Qwest CEO's conviction will
By Andy Vuong
Friday, September 26, 2008
The attorney for former Qwest chief executive Joe Nacchio was
just moments into arguing for reversal of his insider-trading
conviction Thursday when a flurry of questions from judges took
her off script.
Maureen Mahoney was interrupted as she began to attack the
government's theory that the exclusion of expert testimony was
proper because Nacchio didn't ask during the trial for a hearing
to dispute the judge's ruling.
"Isn't that a pretty good requirements?" asked Appeals Court
Judge Mary Beck Briscoe.
Several judges then hammered Mahoney with questions about the
defense's own theory on why Nacchio should be granted a new
"The government requested one (a hearing on the issue), but you
didn't," said Judge Carols Lucero.
"Now you're saying you should've had one?" The
district-court trial judge, Edward Nottingham, didn't grant the
government's motion for a hearing.
The courtroom was packed as the full 10th Circuit Court of
Appeals convened to review whether Nottingham hindered Nacchio's
right to a fair trail by excluding expert testimony from a
defense witness without holding a hearing to discuss the matter.
The nine judges can affirm the conviction, grant Nacchio a new
trial or return the case to the district court to review the
Legal scholars who have followed the case and attended the
40-minute hearing predicted the conviction was likely to be
"There's a strong possibility that the panel is going to
reinstate the conviction, based on their questions," said Jay
Brown, a University of Denver
law professor who has closely followed the case.
University of Denver legal-studies professor John
Holcomb estimated that at least five or six of the judges were
leaning in favor of affirming the conviction.
A majority vote of the nine judges is needed for a decision,
which could come at any time because there isn't a deadline.
Nacchio, 59, was not at the hearing.
Justice Department attorney Edwin Kneedler also was questioned
almost immediately after starting his arguments. But for
the most part, the critical questions came from Judges Paul
Kelley and Michael McConnell. They both ruled in favor of
grating Nacchio a new trial during the initial appellate review
by a three-judge panel. Kelley and McConnell questioned
whether Nacchio's attorneys were given sufficient time to
request a hearing.
After a month-long trail, Nacchio was convicted on 19 counts of
illegal insider trading in April 2007 connected to his sale of
$52 million in Qwest stock in early 2001. He was sentenced
to six years in prison.
In March, the three-judge panel ruled 2-1 to grant Nacchio a new
trial, stating that Nottingham
wrongfully excluded expert testimony from business-law professor
Nacchio's attorneys have said Fischel was the heart of his
defense and would have testified, among other things, that
Nacchio didn't have "material" nonpublic information when he
sold Qwest stock in 2001. But
Nottingham allowed Fisched to testify only summation
about the facts surrounding the stock sales, not as an expert
who could offer his opinion.
The full appellate court granted the government's request to
review the conviction in July.
Nacchio ran Denver-based Qwest from 1997 until he was ousted in
2002 amid an accounting scandal and a plunging stock price.
He remains free on $2 million bond.
Vuong: 303-954-1209 or