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April 13, 2009

Split Tenth Circuit panel denies denies Nacchio bail pending cert.

Howard Bashman has linked here the news reports and the short opinion coming from the Tenth Circuit on the issue of whether the former Qwest CEO Joseph Nacchio should get bail pending his attempt to get cert to review his white-collar conviction.  Here is the line that jumps out from the Tenth Circuit's disposition: "Mr. Nacchio has not shown that there is a reasonable chance that the Supreme Court will grant his petition." 

I suppose, as this request for bail goes up to the Justices (see AP report here and SCOTUSblog report here), the Court itself will have an opportunity to confirm or rebuff this significant cert prediction from the Tenth Circuit panel.

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April 13, 2009 at 06:21 PM | Permalink

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Comments

Isn't that conclusion just obvious statistically. What percent of appeals to the SC ever get heard 5%, 10%?

Posted by: Daniel | Apr 13, 2009 6:45:20 PM

The percentage is closer to 1% to 1.5%, although paid petitions that have received closely divided en banc decisions involving prominent white collar parties do rather better than average.

Still, if you aren't the Solicitor General of the United States, your odds of being granted cert are always rather poor. Moreover, one needs to not only be granted cert, but to be granted cert on an issue that goes to a prison sentence or no prison sentence, for the a grant of bail to make sense.

For example, in addition to his core issue regarding exclusion of proposed expert testimony, he could also seek cert on the appropriateness of his restitution award. But, a grant on that issue wouldn't matter for bail purposes.

Posted by: ohwilleke | Apr 13, 2009 8:07:58 PM

Daniel and ohwilleke, Nacchio's application to Justice Breyer challenging the CA10's denial of bail makes some interesting points. http://www.scotusblog.com/wp/wp-content/uploads/2009/04/nacchio-applic-4-13-09.pdf

And Nacchio has already filed his cert petition:
http://lawprofessors.typepad.com/files/nacchio-cert-petition.pdf
From a brief skim, it doesn't seem to cover restitution. It addresses materiality and the exclusion of his expert, and then makes an argument for summary reversal... I'm not sure exactly what that last bit is about--it seems to be just a color point to trash the court, but I haven't looked all that closely at it yet.

Posted by: trl | Apr 14, 2009 8:58:27 AM

According to the update at SCOTUSBlog, "Justice Breyer has denied Joseph Nacchio’s request for bail, without issuing an opinion."

Posted by: DEJ | Apr 14, 2009 4:02:21 PM

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