3/17/08 (CO):
Nacchio Appeal: Expert Evidence Wrongly Excluded Says Court
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Former Qwest CEO Joe Nacchio has won his appeal against conviction. The 10th Circuit Court of Appeals ruled 2 to 1 that the lower court, presided over by U.S. District Judge Edward Nottingham, had wrongly excluded expert testimony, and the case has now been set for re-trial.
After a month-long trial in Denver federal court, Nacchio was convicted in April 2007 on 19 counts of insider trading connected to his sale of $52 million in Qwest stock. He was subsequently sentenced to 6 years imprisonment and ordered to repay the $52 million he had gained illegally as well as paying $19 million in fines.
During the original trial the defense had called financial expert Daniel Fischel who was allowed to give expert testimony, but not provide expert economic analysis. Fischel is a Northwestern University Law Professor and private consultant. The majority ruling went on to state that the exclusion of the evidence "was not harmless".
Nacchio had also argued that the jury's decision on guilt was unsound due to flawed jury instructions and that there simply wasn't enough evidence to convict him. The Appellate Court, however, appeared to concentrate heavily on the exclusion of the expert evidence.
For his part, Appellate Judge Jerome Holmes disagreed with how his colleagues reached their decision, and maintained that the jury's guilty verdict was proper.
"I also believe the evidence was legally sufficient to support the jury's verdict," he wrote. "Therefore, I would affirm the district court and uphold Mr. Nacchio's conviction."
The case is now to be re-tried in the lower court but the Appellate Judges ruled that it would be improper to ask Judge Nottingham to sit on the case again.
© X-Pro 2008
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