The Association of U S West Retirees



42 counts + 12 jurors = 1 mystery
By Al Lewis, Staff Columnist
Denver Post
Friday, April 13, 2007

Joe Nacchio walked out of the courtroom Thursday with only one remark for the media.

"I love my lawyers," the former Qwest CEO said.

His smile seemed less certain than earlier in his 3 1/2-week trial.  His eyes -- always behind stylish rectangular glasses -- reflected anxiety and fear.  The jury had begun deliberating 42 counts of insider trading.  Who can predict what 12 disparate souls will decide?

A mortgage broker, a radiographer, an engineer, an Air Force retiree, an office worker, a bookkeeper, an airline captain, a maintenance supervisor, a small-business owner, a manager at a financial-services company, a retired furniture-store owner and an administrative assistant for an oil company.

What will they say about this man who once commanded thousands of employees and billions of dollars' worth of telecommunications assets?  Will they send him to prison for trading his stock?  As if seeking an answer, Nacchio scanned their faces as federal Judge Edward Nottingham read jury instructions.

The brashness, which has so typified Nacchio, was gone.  He took comfort from his wife and son -- who had walked beside him during photographed entrances and exits -- and his six lawyers who surrounded him as he left the courtroom.

Nacchio's lawyers did not seem as jovial as prosecutors, who smiled as they gathered their coats and briefcases.  If prosecutors lose, their client is not going to prison, and justice was still served.

"The government wins when justice is done by a jury," Nottingham said in his instructions, "regardless of whether the government wins or loses" at trial.

When prosecutors rested their case last week, I wrote that if I were on the jury, I'd be thinking about an acquittal.

The defense -- also feeling confident prosecutors hadn't made their case -- only put forth three witnesses.  In closing remarks, Nacchio's attorney Herbert Stern told the jury that he offered two of these witnesses -- Qwest founder Phil Anschutz and Catholic abbot Giles Hayes -- only because he had promised them in his opening arguments.  He said he otherwise would not have bothered because prosecutors hadn't made their case.

Prosecutors, however, gained momentum this week.  They scored key testimony in cross-examining defense witnesses, including statements that Nacchio could have held his shares when he exercised his options instead of dumping them.

Colleen Conry, an assistant U.S. attorney, gave riveting closing arguments, piecing together an incriminating mosaic from little tiles of evidence.  She also coined what may become the trademark phrase for a case that alleged Nacchio withheld information as he dumped his stock:  "If you don't tell, you can't sell."

U.S. Attorney Cliff Stricklin's rebuttal seems to have dismantled several points that Stern had made in more than five hours of closing arguments.  Stricklin also emphasized a backdated memo giving trading instructions to Nacchio's broker.

"You know that it's been backdated because Mr. Stern concedes that it is," Stricklin said.  (Stern described the memo that appears to have been drafted in mid-December as a memorialization of a Nov. 3 understanding to sell stock.)

Stricklin deftly twisted the knife:  "Mr. Nacchio put his signature on this document because he knew" what was really happening at Qwest. "... This backdated document was a way to cover his tracks."

Nacchio was shaken after Stricklin's performance Wednesday, particularly after Stricklin inferred that Nacchio used a story about his son's attempted suicide as cover.  Who can sit calmly as the clock ticks and the accusations fly?

By Thursday morning, Nacchio appeared recovered, though still nervous.

What was he thinking when he sold all those shares?  Was he greedy?  Mistaken?  Careless?  Or did he knowingly cheat?

Nottingham told the jury they must decide whether Nacchio had nonpublic, material information, and whether this information was a "significant factor" in his decisions to sell his stock.

To do this, they must infer from the evidence what was inside his head.

Nacchio, perhaps wisely, never took the stand.  And, for now at least, he says he is pleased with his attorneys.

Al Lewis' column appears Sundays, Tuesdays and Fridays. Respond to Lewis at, 303-954-1967 or