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Appeals court names panel in Nacchio case
Same 3 judges who OK'd bail to review conviction
By Sara Burnett
Rocky Mountain News
Tuesday, December 11, 2007

The same three appellate judges who ruled that Joe Nacchio could remain free pending an appeal of his conviction of insider trading will hear his case next week, the 10th Circuit Court of Appeals announced Monday.

That could favor the former Qwest CEO because the judges already decided when they granted Nacchio's request to stay out of prison that there was "a substantial question of law or fact" that could lead to a reversal of his April conviction.

"Nacchio has to be very happy," said Jay Brown, a University of Denver law professor who has followed the case.

The judges already have drawn some conclusions about the case and are sympathetic to Nacchio, Brown added.

But Marcy Glenn, head of the appellate practice group for the Holland & Hart law firm, didn't think one should read too much into the fact that the panel is the same.

"The earlier decision was an interim decision, and it was made before there were any briefings on the merits of the case," Glenn said.  "I would expect (the three-judge panel) to be absolutely open to all arguments at this point."

Oral arguments are scheduled for 2 p.m., Dec. 18.  The case is being heard on an expedited basis, though no deadline for a decision has been set and the panel may issue its ruling at any time.

They could acquit Nacchio, send the case back for a new trial or uphold his conviction.

The judges, all of whom are based in areas of the 10th Circuit outside Colorado, are Paul J. Kelly, Jerome A. Holmes and Michael W. McConnell.  Kelly was nominated by President George H.W. Bush in 1991, while McConnell and Holmes were nominated by President George W. Bush.

The 10th Circuit generally assigns judges randomly to hear cases.  It was unknown until Monday whether the same judges who heard the request for bail pending appeal would also hear the actual appeal.

One factor in the decision may have been the expedited nature of the case:  The three judges who heard the first request already were familiar with some of the issues raised by the two sides.

A jury convicted Nacchio of 19 counts of insider trading for selling Qwest stock in April and May 2001, when prosecutors said he knew the company was heading for financial trouble.  U.S. District Judge Edward Nottingham sentenced Nacchio to six years in prison and ordered him to pay a $19 million fine and forfeit the $52 million the judge said he made on the stock sales.

Nacchio's attorneys say there were several errors during the case, from jury instructions to the decision by Nottingham not to let a defense expert testify.  They are asking for an acquittal, a new trial or a sentence reduction.

The hearing

Former Qwest CEO Joe Nacchio's appeal of his insider-trading conviction will be heard next week:

*  When:  2 p.m., Dec. 18

* Where:  Byron White U.S. Courthouse, 1823 Stout St., Courtroom 1.

*  What to expect:  Each side will get 15 minutes to argue its case.  Judges likely will ask questions based on the briefs already filed and the arguments.  A ruling will be issued at a later, undetermined date.

*  If you go:  Public seating will be on a first-come, first-served basis, with the courtroom opening at 1 p.m.  An audio feed of the proceedings will play in an overflow courtroom.  All visitors must present a valid government-issued ID.

The judges

*  Paul J. Kelly:  Born 1940 in Freeport, N.Y.  Nominated by President George H.W. Bush in 1991.  Graduate of Fordham University School of Law and former Republican state representative from New Mexico.  He was on the three-judge panel that upheld the conviction and death sentence of Oklahoma City bomber Timothy McVeigh.

*  Michael W. McConnell:  Born 1955 in Louisville, KY.  Nominated by President George W. Bush in 2001.  Graduate of University of Chicago Law School, the alma mater of Nacchio appellate attorney Maureen Mahoney and U.S. Attorney for Colorado Troy Eid. Former assistant to the solicitor general.  In 2005, he was rumored to be on the short list for a seat on the U.S. Supreme Court.

*  Jerome A. Holmes:  Born 1961 in Washington.  Nominated by President Bush in 2006.  Is the newest judge to join the 10th Circuit Court of Appeals and its first black judge.  Graduate of Georgetown University Law Center.  Earned a master's of public administration from Harvard.  He was part of the team that prosecuted McVeigh and Terry Nichols.

Staff writer Jeff Smith contributed to this report.