Nacchio attorneys request hearing on testimony
By P. Solomon Banka, AP Writer
Tuesday, April 28, 2009
Attorneys for Qwest CEO Joe Nacchio are asking a judge for a
hearing to consider new testimony from the prosecution's star
witness that they say would prove their client's innocence.
In documents filed Tuesday in U.S. District Court, attorney
Maureen Mahoney says testimony given by former Qwest Chief
Financial Officer Robin Szeliga as part of a civil case
clarifies testimony at Nacchio's criminal trial in 2007.
Szeliga was deposed Feb. 4 in a pending civil case filed by the
Securities and Exchange Commission against Nacchio and other
Qwest executives. Mahoney says Szeliga testified then that
the projected internal revenue shortfalls were much smaller than
those alleged by prosecutors during the trial.
Szeliga testified during the deposition that Nacchio was warned
of an immaterial 1.4 percent shortfall, Mahoney said, not the
bigger risk of a 4.2 percent shortfall that jurors used to
consider whether Nacchio sold his stock to avoid losses when
Qwest's stock tanked because it failed to meet its financial
Mahoney said such evidence is not only material to the core
legal issue in the case, but it "demonstrates that Nacchio is
innocent of the crime for which he was convicted."
Nacchio was convicted in 2007 of 19 counts of insider trading
and acquitted of 23 counts. Prosecutors said he sold $52
million worth of stock in 2001 based on nonpublic information
that Denver-based Qwest Communications International Inc. faced
trouble meeting its sales targets. He was acquitted on 23
other counts of insider trading.
A three-judge panel of the 10th U.S. Circuit Court of Appeals
overturned the conviction, but the full court reinstated it last
month. Nacchio's attorneys filed an appeal to the U.S.
Supreme Court on March 20, raising questions about the fairness
of the trial judge.
Jeff Dorschner, a spokesman for the
attorney's office in
Denver, said prosecutors could not
comment on Mahoney's filing. In previous filings,
government prosecutors objected to Szeliga's February testimony
on procedural grounds.
"Where evidence exonerates a criminal defendant, it is incumbent
upon the Department of Justice to take affirmative steps to
vacate the conviction, not conjure up faux procedural obstacles
to keep an innocent man in prison," Mahoney wrote.
No hearings on Mahoney's request have been set.
Nacchio reported to a minimum-security prison camp in Minersville, Pa.,
on April 14.
The Minersville camp is a satellite facility of the Federal
Correctional Institution, Schuylkill.