Court hears Nacchio appeal of conviction
By Tom McGhee
Thursday, September 25, 2008
Joe Nacchio (Andy Cross, Denver Post file photo )
1:41 p.m. Court in recess.
1:40 p.m. Mahoney in rebuttal. Judge Mary Beck Brisco asks why
the defense didn't request a continuance to address question of
testimony. Nacchio could have come back from his home in
New Jersey to make it, she adds. "He's a
frequent flyer — he could have come back."
1:39 p.m. - Kneedler argument completed.
1:35 p.m. - "We are being asked to affirm (Nottingham's)
ruling on the theory that Fischel, an expert who has testified
on 200 matters .... was planning to testify without
methodology," a judge says.
1:30 p.m. - Chief Judge Robert H. Henry asks if it was necessary
to totally exclude Fishcel's expert testimony. "Isn't this
sanction over the top?"
1:21 p.m. - Prosecutor Edwin Kneedler arguing: If Nacchio's
lawyers could have done many things to get exhibits that would
have shown what Fischel would testify into the trial. Judges are
asking whether defense was really given opportunity to respond
when prosecuters were moving to keep Fischel from testifying.
1:16 p.m. - "Appropriate remedy ... is to go ahead and have a
new trial," Mahoney says. She is finished arguing and will
return on rebuttal.
1:09 p.m. - "Counsel, I am perplexed by your argument," says a
justice," says Judge Carlos F. Lucero. Mahoney is arguing that
Judge Edward Nottingham should have held a hearing to establish
whether an expert witness for Nacchio should be allowed to
1:03 p.m. - Nacchio lawyer Maureen Mahoney arguing that
government should have allowed expert witness to testify. Judges
are peppering her with questions.
1:01 p.m. - Justices are now seated.
12:56 p.m. - Four brass and frosted glass chandeliers surround a
compass rose set into the chamber's glass ceiling.
12:39 p.m. - Many of those in the packed gallery are lawyers and
some are retirees or others who lost money when Qwest imploded.
12:34 p.m. - The small appellate court room is crowded with some
people standing. Lawyers for both sides are unpacking briefcases
and shuffling papers.
BACKGROUND: An appellate court will hear oral arguments today to
decide whether former Qwest CEO Joe Nacchio, who was convicted
of insider trading, should receive a new trial.
A jury found Nacchio, 59, guilty of 19 counts of insider trading
in April 2007 and he was sentenced to six years in prison.
He netted more than $216 million through stock sales, bonuses
and other perks in 2000 and 2001, a period for which Qwest later
was forced to restate losses of $2.5 billion.
"So many retirees of our company were seriously hurt by this. In
the end, when all the facts are known I just hope that justice
is done," said Nelson Phelps, executive director of the
Association of US West Retirees.
A three-judge panel of the 10th U.S. Circuit Court of Appeals
ruled that during the trial U.S. District Judge Edward
Nottingham improperly barred expert testimony for the defense
from business law professor Daniel Fischel.
Prosecutors sought a review by the full appeals court, which
granted the request. Three members of the 12-member panel have
been recused, leaving nine judges to hear the case.
Nacchio's defense will argue that
never gave him an opportunity to explain why Fischel's testimony
should be allowed.
The government says Nottingham
provided Nacchio ample time to explain why Fischel should be
allowed to testify, but the defense didn't meet the burden
required under the federal rules of evidence.
Both sides will have 15 minutes to present their case, though
questions from the judges could prolong the hearing. Nacchio
didn't attend the first appellate hearing and is not required to
Nacchio engineered Qwest's $48 billion merger with phone company
U S West.
He turned the stodgy Baby Bell into a major player before the
company suffered huge financial losses and he was pushed out in
Still pending is a civil lawsuit the Securities and Exchange
Commission filed against former Qwest executives, including
McGhee: (303)954-1671 or