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August 4, 2009

Speculating on the next Nacchio prosecution twist and turn

As noted in this recent post, a unanimous Tenth Circuit panel late last week reversed the sentence imposed on former Qwest CEO Joe Nacchio following his conviction for insider trading.  Though a lot more could (and surely will) be said about that opinion, here I want to speculate on what comes next for a case that has already gone through a number of notable twists and turns.  Helpfully, these two recent Denver Post articles provide a basic primer on some of the coming possibilities:

The first article notes that further appellate review of the panel decision is possible: "The government has 14 days to ask the panel to reconsider or request a rehearing from the entire 10th Circuit, or both. It also can appeal the panel's decision to the Supreme Court."  The second article spotlights some possible battles when this case gets back to the district court: 

[T]he ruling from a three-judge panel of the 10th Circuit Court of Appeals may start another set of legal battles, including a renewed request to allow the imprisoned Nacchio to be free on bail while the sentence is sorted out....

If the government is not successful in challenging the panel's ruling, Nacchio's sentencing would start anew in U.S. District Court in Denver, likely meaning a fresh round of filings and hearings, said Peter Henning, a professor of law at Wayne State University.  Experts could be asked to testify about the gain.  

As white-collar crime fans may recall, Nacchio had won a reversal of his convictions in an initial Tenth Circuit panel decision that was later reversed by the full en banc Tenth Circuit.  I doubt that the full circuit will be again eager to review this latest sentencing decision (and I would not be surprised if the Government does not even seek en banc or cert review).

The potential bail battle strikes me as especially interesting given that Nacchio has already served about four months in prison, but still seems relatively unlikely to get resentenced to much less than a few years even if his new sentencing judge — recall that District Judge Marcia Krieger took over over the Nacchio case after Edward Nottingham resigned last year — is sympathetic to his situation at resentencing.  And, adding further complications to these matters, as the Denver Post notes, "Nacchio has a motion for a new trial pending before Krieger, contending that new evidence has surfaced. He also has asked the Supreme Court to review the case."

August 4, 2009 at 11:56 AM | Permalink


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FWIW, Marcia Krieger, IIRC was promoted to the District Court from the bankruptcy court, and thus is very familiar with asset valuation and balance sheet issues at the core of the Nacchio case.

Posted by: ohwilleke | Aug 5, 2009 12:22:09 AM

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