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What you need to know about Nacchio appeal
By Sara Burnett and Jeff Smith
Rocky Mountain News
Thursday, September 25, 2008

Attorneys for the government and former Qwest CEO Joe Nacchio will face off today in a rare hearing before the full 10th Circuit Court of Appeals.

What you need to know about the case:

The hearing

1 p.m. today at the Byron White U.S. Courthouse, 1823 Stout St.

Seating is first-come, first-served and limited in the courtroom. Two overflow courtrooms will be available for the public to see and hear the proceedings.

The players

Edwin Kneedler, the principal deputy solicitor general, will argue for the government.

Kneedler just argued his 100th case before the U.S. Supreme Court. He is one of only eight attorneys to have argued that many times before the high court.

Kneedler replaces the 32-year-old government attorney who argued the previous appellate hearing.

He is a graduate of the University of Virginia Law School.

Maureen Mahoney, a partner in the Washington, D.C., office of Latham & Watkins and head of its appellate and constitutional practice, will represent Nacchio.

Considered one of the nation's best private appellate attorneys, she has argued 19 times before the Supreme Court, winning all but two times.

In the 2006-07 term, Mahoney, a University of Chicago Law School graduate, argued more cases before the high court than any other private lawyer.

Since joining the Nacchio team, Mahoney convinced an appellate panel to grant him bail pending appeal and to reverse his conviction and remand case for a new trial.

The case so far

A federal jury convicted Nacchio in 2007 of 19 counts of insider trading.

In March, a three-judge panel of the 10th Circuit ruled the trial judge improperly excluded testimony from a defense witness, and sent the case back for a new trial.

The government appealed that decision to the full appellate court.  In July, the court decided nine judges would rehear the arguments.  It set that hearing for today.

What's at issue

The judges are considering whether the exclusion of defense witness and law professor Daniel Fischel meant Nacchio didn't get a fair trial.

Nacchio's attorneys said Fischel, who has testified in several corporate fraud cases, would have told jurors the inside information Nacchio had when he sold stock wasn't "material," or didn't have to be disclosed to investors.

Prosecutors say the defense had ample opportunity to provide the court with Fischel's methodology and to establish his reliability, but failed to do so.  That led U.S. District Judge Edward Nottingham to limit what Fischel could discuss on the stand.

The options

The appeals court can issue its decision whenever it chooses.

It could uphold Nacchio's conviction, reverse the conviction and send the case back for a new trial, or send the case back to the district court for a hearing on whether Fischel's testimony should have been excluded.

Either side could ask the U.S. Supreme Court to consider an unfavorable decision.

Will Nacchio show?

Nacchio, who is free on bail pending his appeal, is not required to attend today's hearing.

He did not attend last year's oral argument before the three-judge appeals panel. But it is possible he will make the trip to Denver today for the more unusual, higher-stakes hearing.