Nacchio: Witness excluded at trial was
'heart' of defense
By Jeff Smith
Rocky Mountain News
Tuesday, September 2, 2008
An expert witness excluded from testifying at former Qwest CEO
Joe Nacchio's insider-trading trial last year represented the
"heart" of his defense, his attorneys argue in a filing.
Nacchio's defense team said expert witness Daniel Fischel has
testified more than 200 times, including for the government, and
had never been excluded. They maintain that U.S. District
Judge Edward Nottingham didn't notify the defense that they had
to prove Fischel's reliability through additional written
testimony or by requesting a hearing.
"Every defendant has a right to present a defense, and the
concerns about fairness are heightened all the more when these
rulings were issued by a judge who said he could 'see no reason
why this man (Nacchio), who grew up the son of Italian
immigrants . . . in New Jersey and New York, should ever have
come out here to Colorado,' " Nacchio's lawyers wrote.
Nottingham's remarks were made at Nacchio's
The filing by Nacchio's defense team comes in advance of oral
arguments Sept. 25 in front of the full 10th Circuit Court of
The court has agreed to consider whether Nacchio's conviction
last year should stand. Nacchio was sentenced to six years
in prison, fined $19 million and ordered to forfeit $52 million
of stock proceeds. He is free on $2 million bail.
An appellate panel previously ruled 2-1 that
improperly excluded Fischel and ordered a new trial.
The government has argued that Nottingham
was within his rights to exclude Fischel and that Nacchio's
attorneys had "ample opportunity" to establish Fischel's
reliability but failed.
Nacchio's attorneys argued that Fischel's testimony would have
"unequivocally" contradicted any suggestion Nacchio sold stock
based on material information. Fischel would have
testified that investors didn't react negatively when Qwest
disclosed in 2001 the amount of revenue from one-time sales and
swaps of communications capacity.