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June 21, 2010

You make the sentencing call: resentencing of Qwest's Nacchio on tap for this week

As detailed in this Denver Post article, which is headlined "Former Qwest CEO Nacchio awaits resentencing," a high-profile white-collar defendant is scheduled to be resentenced later this week. Here are all the details:

Former Qwest chief executive Joe Nacchio, 14 months into a six-year prison term for criminal insider trading, will receive a new sentence Thursday. What that sentence will be is anybody's guess.

Nacchio attorney Sean Berkowitz contends it should be less than three years and five months. The government argues federal guidelines allow for a sentence of as long as 12 years and seven months.

U.S. District Judge Marcia Krieger has set aside three days, Tuesday through Thursday, to resolve the matter.

A federal appeals panel last summer granted Nacchio a new sentence, ruling that trial judge Edward Nottingham miscalculated how much Nacchio gained from illegally selling Qwest stock based on nonpublic information that the company was faltering financially.  The amount of money a defendant gains from a crime is a key sentencing factor in securities cases. Nottingham determined Nacchio gained $28 million.

An analysis by government expert Anjan Thakor, a finance professor at Washington University in St. Louis, says Nacchio gained between $23.5 million to $32.9 million.  Thakor is expected to testify Tuesday.  Nacchio's expert, Northwestern University business law professor Daniel Fischel, pegs that figure at $1.8 million. Fischel is expected to testify Wednesday....

Under federal sentencing guidelines, the amount of gain and factors including the type of crime determine the range of the prison term a judge should impose.  The guidelines are advisory, not mandatory.  But a judge must state reasons for imposing a sentence outside the range.

Nacchio's initial sentence was based on 2000 sentencing guidelines because his illegal stock sales occurred in 2001. The government contends Krieger should use 2006 guidelines, which are harsher.

In a court filing pushing for a lighter sentence, Berkowitz portrays Nacchio as a charitable family man who has already suffered enough. "He has lost his career, his livelihood, his reputation, and his freedom," the filing states. "His life has already been forever changed."

The government claims a harsher sentence is warranted because Nacchio's actions "reflect substantial greed" and the offense "is far more aggravated" because of his leadership position at Qwest.  Nacchio and his wife had a combined net worth of $421 million in April 2001, around the time of the illegal stock sales, according to a court filing.

In addition to the prison term, Nacchio was ordered to pay $19 million in fines and forfeit $52 million — the gross amount of his stock sales.  Berkowitz says the fine should be $3.6 million or less and his fine and forfeiture combined should be no more than twice what Krieger determines to be the gain amount.  The government says Nacchio should pay $19 million in fines and $44 million in forfeitures.

Nacchio, who turns 61 Tuesday and is serving time at a federal prison camp in Minersville, Pa., will not attend the re-sentencing hearings, which will be in U.S. District Court in Denver.

Though only those directly involved in the resentencing hearings will hear all the evidence needed to make a fully informed decision, the rest of us certainly can have ideas about what kind of sentence may be "sufficient but not greater than necessary" in this high-profile white-collar case.  So, dear readers, you make the call: what sentence would you be inclined to impose on Joe Nacchio?

June 21, 2010 at 09:30 AM | Permalink

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