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:
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.
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
D.C., office of Latham & Watkins
and head of its appellate and constitutional practice, will
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
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
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 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
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,