Qwest's Joe Nacchio Faces Sentencing
I spent a long time on the phone yesterday with reporter Sara Burnett of the Rocky Mountain News discussing the upcoming July 26th sentencing of former Qwest CEO Joseph Nacchio from a legal perspective.
Here's her new article on how much time he is likely to get and the extent of the forfeiture the Judge will impose.
We know from the pleadings filed in the case is that the Government calculates Nacchio's sentencing guideline range at 70 to 87 months and is asking Judge Nottingham to sentence him at the top of the range to 87 months.
In most fraud cases, the guideline range is arrived at by determining the amount of loss involved in the crime. (Because guideline ranges have increased since 2000, the year Nacchio committed his crimes, the Court will use the guidelines then in effect.)
Because the victims and their losses are difficult if not impossible to identify, the gain, i.e., the total increase in value realized through trading in securities by the defendant and persons acting in concert with him or to whom he provided inside information, is employed instead of the victims' losses.
Nacchio and the Government have very disparate views of the "total increase in value" Nacchio realized through his illegal stock sales, with the Government advocating for $52 million and the defense arguing for $1.8 million.
The final decision is up to Judge Nottingham, and the lawyers quoted in Sara's article are correct, it's not worth predicting how he will rule because you just don't know.
The Government in its sentencing statement said Nacchio's theory is a novel one for which there is no legal precedent. If it is novel (which I don't know) and if courts in the past have consistently applied the factors the Government uses to calculate loss, rather than those proposed by Nacchio, I don't envision Judge Nottingham going out on a legal limb to cut Nacchio some slack. But, that's just my opinion.
Rather than speculate on how much prison time the Judge will impose, I'd like to make a different point. Too often, the public and the media toss around numbers like they were cookies. They aren't. They represent years of a person's life. The difference between 70 and 87 months is almost a year and a half. To someone behind bars and his or her family on the outside, that's a big difference.
Let's assume for the moment that the Government's calculations are correct and Nacchio's guideline range is 70 to 87 months and (an even greater speculation) that Judge Nottingham decides to impose a sentence within this guideline range.
Given that Nacchio's offense was a non-violent one and society is not in danger with him living among us, why should he get 87 months instead of 70 months?The law requires judges to impose a sentence “sufficient, but not greater than necessary” to satisfy the objectives of sentencing. Those objectives are:
- to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense
- to afford adequate deterrence to criminal conduct;
- to protect the public from further crimes of the defendant and
- to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner;
In arriving at a sentence that is "sufficient but not greater than necessary" to achieve these objectives, the Court must consider not just the crime, but the history and characteristics of the defendant.
The Government argues in its Sentencing Statement that 87 months, rather than 70 months, is necessary to "“to provide just punishment, to promote respect for the law, and to protect the public.”
Any lesser sentence would send a message of tolerance of the egregious behavior proven at trial. The need to deter other corporate insiders from taking advantage of the material non-public information they receive as a result of their positions within publicly traded companies is critical.
I disagree. I doubt 87 months (roughly 7 years) sends a different message than 70 months (roughly 6 years) to either the public or future criminals. The Government acknowledges in its statement that Nacchio is unlikely to commit future crimes, so how exactly is the public better protected by Nacchio serving an extra year and a half in prison?
I suspect the Government, as often happens in cases not involving plea bargains with sentence concessions granted for cooperation against others, just wants to max him out.
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